tfiit'»ijiii)iiiiii»k,^ii*l«u'iii»«miniijiJii|ji|i|i KF Am (JnrttfU ICam ^rlyool ilibrarg Cornell University Library KF8935.A72B51912 A brief on the modes of proving the fact 3 1924 020 133 546 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020133546 A BRIEF ON THE MODES OF PROVING THE FACTS MOST FBEQUENTLY IN ISSUE OE COLLA.TEEALLY IN QUESTION ON THE TRIAL OP CIVIL OK CEIMINAL GASES BY AUSTIN ABBOTT THIED EDITION BY CHARLES Z. LINCOLN Legal Adviser to Governors Morton, Black, and Koosevelt; and Author of the Constitutional History and the Annotated Constitution of New Tork THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY ROCHESTER, N. Y. 1912 /3 il/38^ Entered according to Act of Congress In the year nineteen hundred one by LUCY ABBOTT MAETIN in the office of the Librarian of Congress at Washington, D. C. Copyright 1913 by LUCY ABBOTT MARTIN PREFACE TO THIRD EDITION. The original edition of this Brief on Eacts by Austin Abbott proved very valuable and „was iiighly appreciated by the pro- fession. The Second Edition was greatly enlarged and its value greatly increased. The present edition, retaining everything of value in the former edition, includes much that is entirely new, as well as a full development of many other matters. Among the entirely new subjects prepared are such as Blood- hounds, Dedication, Dictagraph, Marriage, Mortality Tables, and Phonographs, while other topics almost entirely new in- clude Dying Declarations, Insanity, Judicial Notice, Maps, ISTotice, Opinions, Photographs, etc. Among the many other topics on which new matter of very material value has been added are Abandonment, Accident, Accounts Stated, Acknowl- edgment, Admissions and Declarations, Boundaries, Oare, Death, and Intent. Every chapter has been made materially more valuable. November, 1912. • •a Ul PREFACE TO SECOND EDITION. The practical usefulness of the Brief on Mode of Proving Facts has been demonstrated by its extensive use by many law- yers. But since its preparation there have been so many valu- able decisions on the subject treated that a new edition of the work has become needed. Some entirely new chapters have been added, such as those on Insanity, Paternity, and Survivor- ship. There are others mostly new, such as Boundaries. The extent to which new sections have been added to the other chap- ters is readily seen by a moment's comparison. For instance: Abandonment is enlarged from two sections to , forty-eight ; Ability from three sections to nine ; Abstracts from one section to six. Even when the additions to the number of sections are few, as in the case of Handwriting, or none, as in the case of Ambiguity, much careful work has been done to make the law of the subject appear with greater clearness and certainty. In short, there has been done in the preparation of this edition the same kind of careful, thorough, and painstaking work as that done on the second edition of the Civil Trial Brief, which has received unusually appreciative and generous commendation frc«n the profession. iv PREFACE TO FIRST EDITION. Every practitioner knows the aid afforded on a trial by the little brief of a few selected authorities he may have made in preparation for getting in his own evidence and keeping out that of his adversary. A number of such briefs that have stood the test of experi- ence I have here consolidated into one systematic whole, which I have enlarged so as to include all the topics most commonly contested, and have condensed by pruning away whatever was peculiar to a particular action, or not likely to be both useful and safe in general practice. It is a familiar elementary principle that the rules of evi- dence are the same in civil and criminal cases, so far as con- cerns the mode of proof. It is when we come to the effect of evidence that the distinction appears. This work, therefore, is adapted to use both in civil and criminal cases. Those ques- tions of evidence which are peculiar to criminal cases, such as the Testimony of the Accused and of Accomplices, Confessions, Consciousness of Guilt, and the like, I have treated in the Crim- inal Trial Brief; and none of that matter is repeated here, but only referred to in its appropriate place. So, the rules which are peculiar to civil jury trials, such as the Pleadings Consid- ered as Evidence, etc., are rarely repeated here. I assume that the reader is familiar with the general princi- ples of the law of evidence, and with the appropriate sphere of rules applicable to but a single class of cases; and that when he takes up this volume he is concerned with the rules either of admission or exclusion, which aid him in dealing with a particular fact or class of facts not peculiar to a particular ac- tion. In support of such rules, civil and criminal cases are alike instructive authority, and both are accordingly cited. A word of explanation of the arrangement of the work and VI PREFACE. its relation to the two other Brief books may facilitate its use. For convenience of ready reference the order of subjects is strictly alphabetical. It is an Alphabet of Evidence. But to find what he wishes the reader should not search for the general rules of evidence, such as Documentary Evidence, Hearsay, etc., but should ask himself what is the object of his proof; what fact does he wish to get in or keep out. For instance, if he wishes to know whether hearsay and opinion are compe- tent for the purpose of proving the age or the health of a person, he should look, not for Opinion or Hearsay, but for Age or Health. The arrangement is that of an Index of the Evi- dentiary Facts common to various classes of litigation. In the preparation of the work, and settling on the terms in which I should state the rules I set forth, I have used the aid of an analytic or logical method, and considered the facts in groups according to their nature, such as fact^ of Conscious- ness, facts of ordinary Physical Observation, Scientific facts, etc., but for convenience of reference the results are arranged in this indexical order. A few deviations allowed from this arrangement, for obvious reasons, are indicated by cross refer- ences. Several distinct advantages are to be found in the systematic preparation for trial, which is here illustrated. (1) The prac- titioner, by surveying the several modes of proof, is enabled to select his evidence more judiciously. (2) Having refreshed his memory on the precedents, he stands with much more confi- dence on his position, and speaks with more persuasiveness, even if, as is usually the case, he refrains from citing author- ities; and (3) if the exigency of the argument calls for au- thority, he has it at hand. AxTSTiN Abbott. 71 Broadway, New York, May, 1889, TABLE OF CONTENTS ABANDONMENT. I. CONTBACTS 2 1. Burden of proof 2 2. Direct testimony 2 3. Letters 3 4. Parol evidence of abandonment 3 5. Opinions 3 6. Sufficiency of proof 3 II. DOMICIL 4 7. Burden of proof 4 8. Presumptions 4 9. Documentary evidence 5 10. Declarations 5 11. Mode of proof 6 III. Easements 6 12. Effect of nonuser generally 6 13. Of abutting ovpner 8 14. Highvfays 9 a. Burden of proof 9 b. Presumptions 9 c. Weight of facts 10 15. Railway right of way 11 a. Inference of intent 11 b. Mode of proof 11 c. Materiality 11 d. Weight of facts 11 16. Ways 12 a. Nonuser generally 12 b. Deviation or use of substituted way 14 c. Obstruction of, or cutting off access to, way 15 d. Whose acts in attempting to abandon way are bind- ing on dominant owner 16 «. Declarations 17 vii Vlll TABLE OF CONTENTS. 17. Water rights 17 a. Presumptions and burden of proof generally 17 b. Right of flowage 18 c. Irrigation rights; ditches, prior appropriation 18 18. Mills 22 IV. Homestead 22 19. Burden of proof 22 20. Presumptions 23 21. Opinions 23 22. Hearsay 23 23. Declarations 23 24. Mode of proof 24 V. Husband amd Wife 26 25. Declarations 26 26. Presumptions 27 27. Relevancy, sufficiency, and weight- of evidence 27 VI. Insukanoe 28 28. Presumptions 28 29. Declarations 28 30. Proof of right to abandon 28 VII. Patents and Teademabks 29 31. Presumptions 29 32. Burden of proof 30 33. Declarations 30 34. Delay 30 NIII. Rights Generally 31 35. Burden of proof 31 36. Presumptions 31 37. Adverse possession 32 38. Mining rights 32 39. Pleading 32 40. Proof of intent 33 ABBREVIATIONS. 1. Judicial notice 34 2. Parol evidence 36 a. In general ; general usage 36 b. Usage of writer 37 3. Pleading — ^variance 38 4. Question to witness 38 ABILITY. 1. Judicial notice 39 2. Presumptions 39 TABLE OF CONTENTS. IX 3. Direct testimony 39 4. Expert testimony 40 5. Experiments in court 41 6. Experiments out of court 41 7. Witness's ability 42 8. Conclusions 42 9. Relevancy and materiality 42 ABSENCE. 1. Reputation 43 2. Fact of letters received 44 3. Contents 44 4. Telegrams 44 5. Entries by deceased person 44 6. Answers to inquiries 45 7. Presumption of continuance 45 8. Public officer's absence 46 9. Reason or motive for absence 46 10. Opinions 47 11. Relevancy and sufficiency 47 ABSTRACTS. 1 . Voluminous documents 48 2. Lost or destroyed documents 49 3. Abstracts of title 50 a. In general 50 b. Admissibility under Illinois burnt records act 50 4. Extracts from reports 51 5. Extracts from books and records 52 ACCEPTANCE. 1. Judicial notice 53 2. Burden of proof 53 3. Presumptions 54 a. Acceptance of beneficial instrument or grant 54 ( 1 ) In general 54 (2 ) By corporation or officer thereof 56 b. Acceptance of bill of exchange 57 c. By carrier, of goods for transportation 57 d. Acceptance of highways 57 4. Documentary evidence 58 5. Parol evidence concerning written acceptance 58 6. Direct question 59 TABLE OF COISTTENTS. 7. Admissions 60 8. Res gestae of receiving 60 9. Eelevancy and materiality; acceptance of deed or lease; of order 60 10. Acceptance of goods or work 61 11. Acceptance of land patent 62 12. Weight, eflfect, and sufficiency 62 a. Acceptance of land dedicated to public use 62 b. To satisfy statute of frauds 63 c. Of bill of exchange 64 ACCIDENT. 1. Presumptions and burden of proof 64 a. In general 64 b. Suicide or accident 65 2. Documentary evidence; verdict of coroner's jury 66 3. Direct testimony 66 ■ 4. Opinions 66 5. Declarations 67 6. Eelevancy 67 ACCORD AND SATISFACTION. 1. Burden of proof 67 2. Presumptions 68 3. Parol evidence to vary writing 68 4. Weight, eflfect, and sufficiency 68 ACCOUNTS. I. Peovino Books op Account in Favor of One Intekbsted in Keeping 71 1. Entries by the party himself 71 a. Rule independent of statute 71 b. Statutory rule 73 2. Entries by party who has since deceased 75 a. Common-law rule 75 b. Statutory rule 77 3. Entries by party who has since become insane 77 4. Entries in partnership books by absent or deceased part- ner ; 7g 6. Entries made by bookkeeper 78 a. Common-law rule 78 (1) When the bookkeeper is accessible 7S ( 2 ) When the bookkeeper is not accessible 79 ( 3 ) When the bookkeeper in insane 80 ( 4 ) When the bookkeeper is dead 80 b. Statutory rule 81 TABLE OF COITTENTS. ^1 6. Effect of statute making party competent witness for self . . 81 7. Effect of statute prohibiting party from testifying 81 8. Effect of statute of limitations 82 9. Effect of amount In controversy 82 10. Rule when the party keeps a clerk 83 a. Generally 83 b. Who are clerks 83 11. Form and requisites as to book and entry 83 a. Generally 83 b. Alterations, erasures, and mutilations 84 c. Omission to affix price, weight, etc 85 12. Entries; original or transferred 85 a. General rule 85 b. Entries transferred from memoranda 86 u. Ledgers 87 d. Balances 88 13. Time for making the entries 88 a. General rule 88 b. Undated entries 89 c. Lump charges 89 14. Regularity as to course of business 90 a. General rule 90 b. Entries relating to party's business 91 15. Entries showing intent to charge 91 16. Authentication and correctness of books and entries 91 a. Necessity generally 91 b. Oath of the party himself 92 u. Proof by customers 92 17. Knowledge of the person making the entries 93 a. In general 93 b. Entries on information verified by informant 93 18. Bringing home to adverse party 93 19. What accounts are provable by books 94 a. Generally 94 b. Delivery of goods to third person 95 c. Professional services 9(5 d. Work done by servant 96 II. Explanations, Coebections, and Disceedtting 97 20. Accounts not exclusively the best evidence 97 21. Photographs 98 22. Secondary evidence not rebuttable 98 23. Interpreting symbols 99 24. Time of entries 99 25. Explaining 99 a. In general 99 b. By expert 100 Xll TABLE OF CONTENTS. 26. Discrediting 101 a. By opinion 101 b. By specific errors 101 III. Peoving Account in Aid of Oeal Testimony 102 27. Contemporaneous entries 102 28. Written details of facts testified to 103 IV. Mutual Accounts 103 29. Account rendered 103 30. Pass boolis 103 31. Conclusiveness 104 V. Pkoving against One Interested in Keeping 104 32. Authentication 104 33. As admissions 105 34. Agent's boolcs 105 35. Joint books 105 ACCOUNT STATED. 1. Account rendered and not objected to 107 2. Part payment on account rendered 110 3. Reservation of objection 110 4. Objections to part 110 5. Eeasonable time 1 ] 1 6. Giving note implies accounting in full 112 7. To impeach 112 8. Account admissible without original books 112 ACKNOWLEDGMENT. 1. Burden of proof 113 2. Presumptions 114 3. Best and secondary evidence 114 4. Unacknovi'ledged or defectively acknowledged deed, or record thereof, as evidence 114 a. Necessity of acknowledgment 114 b. Time of acknowledgment 115 c. Defective acknowledgment 116 5. Parol and extrinsic evidence 117 6. Privileged communications to notary 119 7. What defects disregarded 119 8. Sufficiency of evidence to impeach certificate of acknowledg- ment 119. ACQUIESCENCE. 1. Burden of proof 120- 2. Acts and declarations 121 3. Relevancy 121 TABLE OF CONTENTS. XIU ADDRESS. 1. Privileged communications 122 2. City directory 122 ADMISSIONS AND DECLARATIONS. 1. Witness not hearing or understanding whole conversation . . 124 2. Recollection of exact words 124 3. Identifying the speaker 125 4. Reference to things not specified 126 5. Statute requiring writing 12() 6. Undelivered writing 127 7. Admissions or declarations in a pleading or judicial pro- ceeding 127 M,. In general 127 b. In unauthenticated document used 129 c. Admission made on former trial for purpose of defeat- ing continuance 129 d. Testimony given upon preliminary examination by witnesses not availible at time of trial 129 8. Plea to indictment 131 9. Records of one's society 131 10. Best and secondary 132 11. Knowledge 132 12. Admissions pending compromise, privileged 132 13. Contradicting 135 14. Change of opinion 135 15. Entire statement or conversation 135 16. Conduct against admissions 136 17. Declarations by injured person to physician examining him in order to qualify as a witness 137 18. Statements by assured outside of his application as evi- dence against beneficiary 139 19. Proof against one person of declarations by another to show partnership 141 20. Declarations against title by former owner, who is avail- able as a witness 142 21. Declarations of one since deceased against his own mar- riage 143 22. Declarations of testator 143 a. To show undue influence 143 b. On issue of testator's intention in destroying will. . . . 144 c. To overcome or sustain presumption of revocation where will cannot be found 144 d. To prove existence or contents of lost or destroyed will 145 XIV TABLE OF OONTENTS. 23. Declarations of deceased subscribing witness to will 146 24. Declarations of infant too young to be sworn as a witness 146 25. Admissibility of statements in presence of party as affected by his mental or physical condition at the time 147 26. Reports by agent or employee to employer, to prove fact in issue 148 27. Declarations out of court by one whose name is charged to have been forged 149 ADULTERY. 1. Circumstantial evidence ; presumptions 150 2. Cogency and relevancy of proof 151 ADVERSE POSSESSION. 1. Burden of proof 152 2. Presumptions 153 3. Conclusion 155 4. Declarations — hearsay 155 6. Relevancy 155 6. Weight, effect, and sufficiency 157 AFFINITY, 158. AGE. 1. Presumption 159 2. Records and inscriptions 159 3. Direct testimony 162 4. Hearsay 162 5. Opinion 164 6. Cross-examining witness as to capacity to judge 164 7. Inspection 165 8. Age of document 165 9. Age of horse 166 AGENCY. I. Pbovinq Agency ob Authority 168 1. Reputation Igg 2. Direct testimony Igg a. In general ]^68 b. By agent; implied authority 168 3. Necessity of written authority 169 a. In general 169 b. Of sealed authority 169 4. Best and secondary evidence of authority 170 TABLE OF CONTENTS. XV 5. Conditions precedent i73 6. Admissions of principal 171 7. Admissions and declarations of agent 171- a. In general 171 b. In connection with evidence of ratification 174 8. Appearing to be in charge of business 175. 9. Ownership and use 17G 10. Form of commercial documents 170 11. Charging a commission 177 12. Opinion as to powers 178 13. Course of dealing 178' a. In ge'neral 178 b. Transactions with other persons ISC' c. Similarity of transactions 182 d. Single transaction not enough 18S 14. Unauthorized signing of name without indication of agency 183 15. Unauthorized acts of wife or child 183 16. Relationship 184. 17. Joint interest 385 18. Presumption of continuance 185 19. Scope of authority 185 a. Local or trade usage 185. b. To indorse checlc 1 87 c. To take note payable to himself 187 d. To cancel contract 188 e. To receive payment of price IBS f . To receive payment of negotiable paper 189* g. To receive payment of bond and mortgage 18!) 20. Ratification 190> II. DisPEOViNG Agency or Adthohitt 193 21. General reputation 193 22. Separation of husband and wife 193. 23. Revocation 193 a. In general 193 b. By death or incapacity 194 ALTERATIONS. 1. Allegation 195. 2. Presumptions and burden of proof 196 3. Effect of alteration on competency as evidence 200> 4. What is material 20] 5. Inspection 202' 6. Signature and body 202^ 7. Effect of call for explanation 202" 8. Effect of failure to explain 204 XVI TABLE OF COSTTENTS. 9. Effect of attempted explanation 204 10. Effect of alteration on validity 205 11. Competency of witness to explain 206 12. Description 206 13. Explaning, as immaterial 207 a. In general 207 b. As made by third person 207 c. As made by consent 208 14. Extrinsic evidence to supply obliteration 208 15. Abstract or memorandum corroborating the testimony. . . . 209 16. Ofiieial document; ancient instrument 209 17. Certified copy ■ 209 AMBIGUITY. 1. Symbol 210 2. Absence of dollar mark 210 3. Illegibility 211 4. Blank 211 5. Patent and latent 211 6. Surrounding circumstances 213 7. Usage of the business 214 8. Practical construction 215 9. Creating by extrinsic evidence 216 10. Technical meaning 216 11. Identity 217 12. Insurance contracts 218 AMOUNT. 1. Voluminous books, records, papers, etc 219 2. Alternative computations by experts 220 APPLICATION OF PAYMENTS. 1. Burden of proof to show direction ; presumption 220 2. Oral evidence 221 3. Direct testimony 221 4. Direct and circumstantial evidence 221 APPRAISAL. Competency 222 APPROVAL. 1. By judge 222 2. By corporation 223 TABLE OF CONTENTS. XVH ARBITRATION AND AWARD. 1. Presumptions and burden of proof 223 2. Parol evidence generally 224 3. Testimony of arbitrators 225 4. Sufficiency of evidence 226 ASSENT. I. Assent without Signing 227 1. Instrument delivered to be retained as evidence 227 a. Presumption generally 227 b. Conclusiveness of presumption ; rebuttal 229 2. Instrument delivered, but to be surrendered again 229 3. Direct testimony 230 II. NoNAssENT Notwithstanding Signing 230 4. Presumptions 230 5. Neglect to read 230 6. Direct testimony 231 7. Conditional delivery 231 ASSIGNMENT. 1. Necessity of proof 232 2. Oral evidence 232 a. In general 232 b. Notwithstanding written evidence exists 233 3. Form 233 4. Proof by entries in books of account 234 5. Proof by proof of substitution of party 234 6. Description 234 7. Principal and collateral 234 8. Qualifying the schedules 235 9. Reservation 235 10. Impeaching 235 a. By motive or purpose 235 b. By evidence of abandonment 235 11. Defeasance 236 AUTOPSY. 1. One of several physicians 236 2. Irregularity 236 BAD CASE. Tampering with evidence and jurors 237 XVIU TABLE OF CONTENTS. BELIEF. 1. Belief as characterizing one's own act 237 2. Cross-examining 238 3. Asking for impression 238 4. Belief at the time of the transaction 239 5. Eeason for belief 239 6. Qualifying words as to belief 239 BIAS. 1. In general ; presumption 240 2. Cross-examining on details 241 3. Calling witness's attention 241 4. Eepelling 242 BIRTH, 1. Premature or still birth 242 2. Presumption 243 3. Hearsay 243 4. Date of birth 243 BLOOD. Direct testimony 244 BLOODHOUNDS, 245. BOUNDARIES. 1. How proved in general 246 2. Presumptions and burden of proof 247 3. Documentary evidence 248 4. Parol evidence 251 5. Opinions and conclusions 252 6. Hearsay ; declarations 253 7. Variance 256 8. Practical location 256 BREED. 1. Expert may testify to 258 2. Published herd book 258 BUSINESS. 1. Nature and usual course ' 25& TABLE OF CONTENTS. SIX 2. Scope of particular trade 260 3. Practice of particular house 261 4. Contradiction of ground of belief 261 6. Who proprietor 261 CAPACITY. 1. Qualification of witness 262 2. Comparison with similar machine 263 3. Capacity of minor servant to comprehend and avoid danger 264 CARBON COPIES, 265. CARE. 1. Opinion evidence 266 a. In matter of special knowledge 266 b. In matter of common life 268 2. Form of question to witness 270 3. What might have been done 271 4. Whether injury might have been avoided 272 5. Conduct of the witness 272 6. Observation dependent on minutise 272 7. General habit 273 8. Taking advice 274 9. Evidence of other accidents 274 10. Precautions 275 a. In general 275 b. Subsequent to the fact 276 11. Variance 277 a. In general 277 b. Degree of negligence 278 12. Circumstantial evidence 278 13. Presumptions and burden of proof 278 a. In general 278 b. Presumption of want of care from fact of loss or injury 280 ( 1 ) In general 280 (2) Statutes making injury prima facie evidence of negligence 292 c. Contributory negligence 293 ( 1 ) Burden of proof 293 ( 2 ) Presumptions 299 14. Cogency of evidence 300 XX TABLE OF CONTENTS. CAUSE. 1. Expert testimony 302 a. Matter involving special knovpledge, generally 302 b. Common inference — conjecture 303 c. Experiments to corroborate opinion 304 d. As to cause of wound or death 305 ( 1 ) In general SOo ( 2 ) Form of question 307 ( 3 ) Probable position 308 ( 4 ) Exhibiting instrument 308 ( 5 ) Cause of suicide 308 e. Case unknown to expert 308 f. What would have been 309 2. Nonexpert testimony 310 3. Direction of blow, force, or fluid 310 4. Other similar occurrences or injuries 311 5. Suggestion of another cause 313 a. In general 313 b. Cross-examination 314 e. Rebutting evidence of other cause 314 6. Demonstrative evidence 314 7. Declarations as part of res gestw 315 8. Admissions 316 9. Findings of coroner to show cause of death 316 CHARACTER. I. Reputation 317 1. Good character, when competent 317 2. How proved 320 a. General reputation 320 b. Particular facts 322 c. Evidence referring to time subsequent to the fact 322 d. Competency of witness 323 II. Competency and Skill 323 3. Direct testimony 323 4. General reputation 324 5. Single instances 325 6. Intoxication 325 7. Inspection of witness 32g CITIZENSHIP. 1. Distinguished from residence 328 2. Presumption , 225 TABLE OF CONTENTS. XXI 3. Naturalization ^^^ 4. Passport ^^^ 5. Hearsay 328 6. Declarations to show lack of citizenship 328 7. Citizenship of foreign-born wife 328 CLAIM. Direct testimony 328, COLLATERAL ORAL AGREEMENT. The rule against oral evidence 329 COMPROMISE, 333. CONCEALMENT. 1. Positive acts 333 2. Circumstantial evidence 333 CONDITION OF PERSONS, PLACES, AND THINGS. I. Condition of Peesons 334 1. Condition in life 334 Z. Financial condition 336 a. In general 336 b. General reputation 340 3. Physical condition , 341 a. Photographs 341 b. Direct testimony 341 c. Inspection in court 341 d. Inspection out of court 343 II. Condition of Places and Things 345 4. Direct testimony 345 a. In general 345 b. What witness observed 347 5. Combining testimony of several witnesses 348 6. Condition at another time or place 348 a. In general 348 b. Laying foundation for the evidence 351 7. Inspection in court 352 8. View by jury 353 9. Experiments 353 10. Official inspection 353 11. Use of correct photograph or map 354, XXll TABLE OF CONTENTS. 12. Use of approximate maps, plans, etc 355 a. In general 355 b. Reasonable accuracy 355 CONSENT. 1. Unexpressed willingness 356 2. Presumption and burden of proof 356 CONSIDERATION. 1. Value 357 2. Seal 358 3. Bona fide purchaser for value 359 4. Disproving nominal consideration 359 5. Effect of disproving 360 6. Oral evidence to vary writing 360 7. Presumption and burden of proof 363 8. Executory consideration 363 9. Executory agreement 363 10. Legal, to displace recital of illegal, consideration 364 11. Previous agreement 364 CONSPIRACY. I Circumstantial evidence 365 CONSTRUCTION. 1. Judicial notice 366 2. Opinion 366 a. Matters requiring special knowledge 366 b. Matters of common observation 367 c. Quality of work; direct question 368 3. Direct testimony 369 4. Inspection 369 CONTRACT. 1. Implied 370 2. Presumptions and burden of proof 371 3. Direct testimony 372 4. Witness's understanding 373 5. Probability or improbability of transaction 373 6. Previous similar transactions 374 7. Res gestce 375 TABLE OF CONTENTS. XXIU 8. Writing not signed 375 9. Declarations of agent 376 10. Different contract admissible under general denial 377 11. With whom 377 12. Ignorance of effect 378 13. Contract made merely to influence others 378 CONTRADICTION. 1. Contradicting witness 378 a. In general 378 b. Own witness 380 2. Usage to contradict contract 380 CONVERSATION. 1. Interpreted conversation 381 2. Signs 382 8. Denial and rebuttal 382 4. Fact of conversation does not let in substance 382 6. Calling for entire 382 . COPIES. 1. Copy proceeding from adverse party 383 2. Copy of filed or recorded instrument 383 a. In general 383 b. Sufficiency of foundation 385 c. Instrument not entitled to record 386 d. Effect of statute making copy equal evidence 386 e. Form of authentication 387 f. Defect in authentication superseded by oath to the truth of copy 388 3. Imperfect or erroneous copy 388 4. Oral, to vary 388 5. Copies made by mechanical means as originals 388 fl. Copy of lost or destroyed will 389 CORROBORATION. 1. Reason for positiveness 390 2. Corroboration of hearsay 390 3. Corroboration before contradiction 391 XXIV TABLE OF CONTENTS. 4. Corroboration let in by contradiction 391 a. Probability of truth 391 b. Conduct of adverse party 394 c. Accounts 395' d. Subsequent memorandum 395 e. Character of witness 395 f. Prior consistent statements 396 g. Ex parte declarations in own favor 397 6. Contradicting corroboration 397' CREDIT. 1. Presumptions and burden of proof 398; 2. Subsequent promise by agent 398 3. Direct testimony 399 a. In general 399 b. Concurrent intent 399 e. One act on the faith of another 400 4. Subsequent credit 400 5. Account not conclusive 400* 6. Other like purchases 401 7. Res gestce 401 8. General reputation 401 9. Rebuttal of presumption of credit 402; DATE. 1. Hearsay as evidence to fix date 402" 2. Refreshing memory 403 3. Collateral record and memoranda 403 4. Date of letter received 403. 5. Contradicting or corroborating 404 6. Part of document 404 7. Day of the week of a given date 404 8. Presumptions 406 9. Contradicting documentary date by oral evidence 406 10. Date of filing 407 DEATH. 1. Mode of proving generally 408; 2. Presumptions and burden of proof 409 a. In general 412: b. Time of death 412 3. Hearsay; general report 41S 4. Order of substitution 414 TABLE OF CONTENTS. ^X^'" 5. Letters of administration *1^ 6. Record of death *15 7. Undelivered letter 415- DEFEASANCE. 1. Presumption; burden of proof 416- 2. Oral evidence 417 3. Direct question 419- 4. Documentary evidence 420- 5. Admissions 420" 6. Declarations 420- 7. General denial 421 8. Cogency of proof 421 DELIVERY. 1. Direct testimony 422- 2. Contemporaneous records and entries 423 3. Presumptions 423- a. Presumption from possession of instrument 423 b. Presumption from record 424 4. Constructive delivery 425 5. Parol evidence 42& 6. Rebutting delivery by proof of a condition 425 7. Evidence of condition 427 8. Presumption as to date 428 a. In general 428 b. Undated instrument 429- c. Exception in case of private unauthenticated paper. . . 429 DEMAND AND REFUSAL. 1. Oral and written 430" 2. On servant 430 3. Reasons for refusal 430 ' DENIAL. 1. Form in pleading 431 2. General denial 431 3. Specific denial 433 - DEPOSIT IN BANK. Tracing 43S. XXVI TABLE OF CONTENTS. DESERTION. Declarations 434 DICTAGRAPH, 434. DOMICIL. 1. Presumptions 435 2. Res gestw 435 3. Testimony of person as to his intent 436 DUMMY. 1. Bound by evidence 436 2. Effect on rights and liabilities 436 DUTY. 1. Direct testimony ' 437 a. Scope of duty 437 b. Performance i 438 2. Printed rules or instructions 438 DYING DECLARATIONS. I. In Civil Cases 440 II. In Criminal Cases 440 1. In general 440 2. In favor of defendant 441 3. Whose declarations admissible 442 4. Subject of declarations 442 5. Mental and physical conditions 443 a. In general 443 b. Belief in after-accountability 446 6. Time elapsing between declaration and death 447 7. Form and completeness of declaration; oral or written ... 447 8. When there is other evidence of the same facts 448 9. Questions for court or jury 449 10. Eight to impeach or contradict and to sustain declarant . . 450 11. Weight to which entitled 451 EFFECT OF INJURY OR OPERATION. 1. Testimony of person injured 452 2. Expert witness 452 3. Nonexpert witness 454 TABLE OF CONTENTS. XXVll ELECTION OF EIGHT OR REMEDY. 1. Direct testimony 455 2. Decisive act i 455 EMBEZZLEMENT. 1. Circumstantial evidence 456 2. Evidence of other crimes 456 EMPLOYMENT. 1. Appearance of being in service 457 2. Presumption of employment 457 a. From control of property 457 b. From services rendered 458 0. Of continuance of relation 460 ESTOPPEL. 1. Burden of proof 461 2. Equitable estoppel 461 3. Silence 462 4. Estoppel by admission in action ' 462 5. By taking position before the court 463 6. By forbearing to sue 463 EXCUSE. Must be alleged 464 EXPLANATION. 1. Explanation of denial 465 2. Explanation on redirect 465 3. Facts stated not thereby proved 466 4. Explaining nonproduotion of evidence 466 5. Explaining impeacliing evidence ; 466 6. Explaining admission 468 FEELINGS. 1. Direct testimony 467 a. By the person affected 467 b. By observer 467 2. Natural manifestations of present feeling 469 XXVlll TABLE OF CONTENTS. 3. Declarations describing feeling 46* 4. Feigning 471 5. Experiment 472 FICTITIOUS PERSONS. 1. Bank account 472 2. Declarations 472 3. Inquiries 473 a. In general 473 b. Weight of evidence 473 4. Explanation 473 5. Effect of use 474 6. Fictitious grantee 474 FILING. Mode of proving -475 FIXTURES. Evidence of intent 476 FOREIGN LAW. 1. Judicial notice 477 2. Presumptions 477 3. Oral evidence 479 a. What law is 479 b. As to construction 480 4. Usage in territories acquired by United States 481 5. Statute books and Codes 481 6. Copy of statute; omissions and alterations 482 7. Impeaching % 482 8. Judicial decisions 482 FORGOTTEN FACT. 1. Aiding memory by otherwise irrelevant inquiry 483 2. Routine or habit 483 3. Memoranda refreshing memory 484 a. In general 484 b. Writing not an original 488 u. Voluminous writings 487 d. Inspection and cross-examination 487 e. Witness unable to read or write 488 4. Mention to third person 488 TABLE OF CONTENTS. XXIX GENUINENESS. 1. Of bank notes 489 2. Of stock 490 3. Several signatures 490 4. Of acknowledged instrument 490 GIFT. 1. Direct testimony 491 2. Declarations of donor 491 3. Presumptions and burden of proof 491 a. Validity of gift 491 b. Acceptance of gift 494 4. Sufficiency of proof of 494 GOOD FAITH. 1. Right to prove affirmatively; direct testimony 495 2. Presumption and burden of proof 496 a. In general 496 b. Possession 499 3. Information 499 4. Reason for disregard of notice 499 GRANT. 1. When presumed generally 500 2. Without actual execution 501 HABIT. 1. Direct testimony 502 2. Single instance; and repetition 502 3. Limits of time 503 4. Reputation 504 5. Presumption of continuance 504 HANDWRITING. I. Testifying as to One's Own Handvp^eiting 500 1. Direct testimony; authorizing signature 506 2. Writing in court 606 a. On direct examination 506 b. On cross-examination 507 3. Concealing part of writing 5O8 :XX TABLE OF CONTENTS. II. Testimony of Nonexpert from Knowledge of Haxdwriting 509 4. Acquaintance with handwriting; general rule 509 5. Not secondary evidence 509 6. Form of question 510 7. Competency of witness generally 510 8. Means of knowledge 511 a. Having seen write 511 b. Having seen genuine writing 512 c. Only having seen communication received in usual course of business 513 d. Having received letters 534 e. Having seen ancient documents 514 9. Testimony competent, though not positive 515 10. Witness prepared out of court 515 a. In general 515 b. Eefreshing memory 516 11. Privilege of professional relation 516 12. Testimony of interested witness or partj' to handwriting of deceased, etc 517 13. Ordinary witness cannot make comparison 518 14. Testing knowledge 518 a. In general 518 b. Eefreshing memory on cross-examination 519 c. Requiring to pick out genuine writing 519 15. Cross-examination for purposes of contradiction 520 III. Testimony of Experts, With or Without the Aid of Stand- ards OF Comparison 521 16. Expert defined . , 521 17. Expert's direct opinion founded on comparison 521 18. Qualification of witness 522 19. Expert's testimony to peculiar characteristics 524 20. Expert cross-examination on diffierences 525 21. Cross-examination for purpose of contradiction 525 IV. Standards of Comparison, With or Without the Aid of Experts 526 22. Document not already in the case as standard of compari- son 526 23. What is considered as in evidence 527 24. Use of papers in the record 527 25. Use of irrelevant documents as standards 528 a. In general 528 b. Writing of third person 529 26. What law controls 530 27. Disputed writing and standard to be produced before com- parison 530' 28. Genuineness of standards, a question for the court 532 TABLE OF CONTENTS. XXXI 29. Requisite authentication of standards of comparison 533 30. Comparison by jury or referee 538 31. Taking to the jury room 539 v. Photographs, Lettee-Peess Copies, Magniftino Glass, and SUPEK-IMPOSITION 539 32. Photographic copies 539 33. Letter-press copies 542 34. Use of magnifying glass 542 35. Tracing and super-imposition 543 VI. Circumstantial Evidence and Admissions 543 36. Peculiar usages of language 543 37. Aptitude to imitate 543 38. Opportunity 544 39. Condition of writer 544 40. Admission of such an instrument 545 HEALTH AND DISEASE. 1. Direct testimony by person affected 545 2. Matter of observation 545 3. Expert testimony 546 4. Disease of animals 547 HEARING. 1. Direct testimony as to conversation 548 2. As to sounds 548 HORSE-POWER. 1. Comparison 549 2. Tables 549 IDENTITY. 1. Inspection in court 550 2. Pointing out person without naming him 550 3. Direct testimony 551 a. In general 551 b. Identifying from voice 552 c. Uncertainty 552 4. Photographs 553 5. Answering to name 554 6. Slight evidence 554 7. Name as evidence of identity 556 8. Oral evidence 557 :XXX11 TABLE OF CONTEITTS. 9. Commingled assets 558 10. Eebuttal 559 a. Testing witness 559 b. Inspection and experiment S59 c. Existence of a "double" 559 d. Name 559 ILLEGALITY. Oral evidence 560 INDEBTEDNESS. 1. State of account 561 2. Municipal indebtedness 561 3. Admission 561 INDUCEMENT. 1. What would you have done 562 2. Oral evidence 562 3. Cogency of evidence 563 INFANCY. 1. Admission 564 2. Burden of proof 564 3. Physical appearance 564 INSANITY. I. Pkesumptions and Bukden or Pboof 566 1. In general 566 2. With relation to contracts and conveyances 567 3. With relation to wills 568 a. In general 668 b. As to fraud and undue influence 570 c. Burden of proof after probate 571 4. As to capacity of one contracting marriage 572 5. Presumption of insanity from suicide 573 6. Presumption of continuance of insanity 574 a. Habitual insanity 574 b. Temporary insanity 576 c. Alcoholism and alcoholic insanity 57G ' d. Presumption of continuance of a lucid interval 577 e. Nature of the presumption 578 TABLE OF CONTENTS. XXXIU n. Opinion Evidence 578 7. Expert opinions 678 a. Admissibility generally 578 b. Privilege of vi^itnesses 579 c. From observation or examination 580 d. From the evidence 581 e. On hypothetical questions or statements 582 { 1 ) Admissibility 582 (2) Hypothesis; upon what based 582 (3) Evidence in support of hypothesis 583 (4) Form of question 583 f. Qualifications of experts 584 g. Cross-examination ; contradiction 585 h. Weight 586 ( 1 ) In general 586 (2) As affected by facts and opportunity to observe 587 (3) As affected by character, bias, and nature of the question 588 (4) As compared with other expert opinions 588 (5) As compared with nonexpert opinions 589 (6) As a question for the jury 590 8. Nonexpert opinions generally 590 a. General rules 590 b. \Vho may give 592 c. Acquaintance necessary 593 d. Time to which opinion relates 594 e. Cross-examination, rebuttal, and impeachment 595 f. Weight 595 9. Opinion of subscribing witnesses as to sanity or insanity 597 a. Admissibility generally 597 b. Necessity of giving 597 c. Contradiction ; weight 599 III. Miscellaneous 600 10. Photographs 600 11. Declarations 600 12. General reputation 601 13. Presence of defendant in lunacy proceedings 601 14. Conduct and circumstances 601 15. Belief in spiritualism, witchcraft, etc 602 INSOLVENCY, SOLVENCY, AND FINANCIAL CONDITION. 1. Direct testimony 603 2. Accounts 604 3. Relevant facts 604 4. Hearsay and general reputation 605 5. Presumption and burden of proof 606 XXXIV TABLE OF CONTENTS. INTENT. 1. Right of person to testify as to his own intent 608i a. General rule 608 b. Test of admissibility 609 c. Exceptions and limitations 609 d. Application of rule 610' e. Weight and conclusiveness 612 2. Eight to testify as to intent of other person 612 a. In general 612 b. Manifested by demeanor 614 3. Declarations; res gestae 61* 4. Intent as to law 614 5. Other acts of same nature 615 6. Concurrence of intent 615- 7. Constructive intent 61B 8. Presumptions and burden of proof 616 a. Intention as to consequences of act 616 b. Intent of testator els' c. To evade law 617 d. To create monopoly 61 S 9. Parol or extrinsic evidence to show 618 a. As to writings generally 618' b. As to wills generally 62] c. To show intent of testator in respect to disinheriting an after-born child 624- d. To show intent that real property should be charged with payment of legacies where will is silent on that point 624 e. May beneficiary be put to his election by extrinsic evi- dence of testator's condition 625 f. To show that instrument not on its face a will was intended to take effect as such 626 g. To show that instrument on its face a will was not In- tended as such 629- 10. Eebutting 627 INTEREST. 1. Previous understanding 628 2. Parol evidence 628 3. Relevancy 628 4. Weight, effect, and sufficiency 628 INTOXICATION. 1. Direct testimony 630 TABLE OF CONTENTS. XXXV 2. Customary manner of acting 631 3. Intemperate habits 631 4. Presumption and burden of proof 632 5. Weight 632 JUDICIAL NOTICE. I. By Court 633 1. In general 633 2. Laws 637 3. Official and judicial character and acts 640 4. Political, historical, and geographical matters 642 II. Bt Jury 645 KNOWLEDGE. 1. Direct testimony 647 2. Probability of knowledge 648 3. Circumstantial evidence 649 4. Possession 650 5. Presumptions and burden of proof 650 a. Common fact 650 b. Knowledge of corporation or its officers 650 c. Of one dealing with corporations 651 d. Knowledge of principal 651 e. Knowledge of servant 651 f. Knowledge of contents presumed from signing or re- ceiving 651 g. Knowledge of contents presumed from access or from claim 653 h. Newspaper contents 654 i. Knowledge of law 655 ( 1 ) In general 655 (2) Of foreign law 655 6. General reputation 656 LEAVE TO SUE. Receiver 657 LETTERS. 1. Offering part of connected correspondence 657 2. Proof of authorship g58 3. Delivery ; mailing ggO 4. Letter and inclosure let in each other 661 XXXVl TABLE OF CONTENTS. 5. Letters of an agent 661 6. Mere possession 66] 7. Omission to answer 662 LOST EECORD. Mode of proving — copies 663 MAILS. 1. Judicial notice 663 2. Deposit 663 3. Presumption 664 4. Weight, effect, and 'sufficiency 665 5. Best evidence 666 MALICE. 1. Direct testimony 667 2. Indicative conduct and declarations 667 3. Presumptions and burden of proof 669 a. In libel or slander case 669 b. In action for malicious prosecution 670 4. Relevancy of evidence generally 671 MARK. 1. Genuineness 673 2. Burden of proof 674 3. Absence of attesting witness 675 4. Attestation after death 675 6. Intelligence of execution 675 MARRIAGE. 1. Direct testimony 67B 2. Eye-witnesses 676 3. Certifieates 676 4. Admissions and declarations 677 5. Cohabitation and repute 678 6. Presumptions and burden of proof 678 a. In general 678 b. Presumptions flowing from marriage ceremony 679 MEASURE. 1. Measurer 683 TABLE OF CONTENTS. XXXVll 2. Comparison 683 3. Usage 683 4. Best and secondary evidence 683 5. Documentary evidence 684 6. Parol evidence 685 7. Opinions and conclusions 685 8. Declarations 68C 9. Relevancy 686 MEMBERSHIP. 1. Record 687 2. Judicial notice 688 3. Presumptions and burden of proof 689 a. In general 689 b. Office holding 690 c. Attendance at meeting 690 4. Best and secondary evidence 690 5. Parol evidence 691 MERGER. 1. Presumptions and burden of proof 691 2. Extrinsic evidence 692 3. Declarations and acts 692 MESSAGE. 1. Effect of oral message 693 2. Ansvrer competent 693 3. How answer proved 693 MISNOMER. 1. In contract or deed 694 2. In proceedings 694 MISTAKE. 1. Mistake in certified copy 695 2. Mistake as an excuse 696 3. Oral evidence 696 4. Burden of proof 696 6. Cogency of proof 697 MOON. Almanac 697 XXXVlll TABLE OF CONTENTS. MORTALITY TABLES. 1. Admissibility generally 698 2. Conclusiveness 699 3. Secondary evidence of contents 699 4. Authentication 699 MOTIVE AND PURPOSE. 1. Direct testimony 700 2. Declarations 702 3. Motive as affecting cause of action 703 4. Motive in suing 704 5. Relevant facts 704 NAME AND DESIGNATION. 1. Judicial notice 706 2. Hearsay 707 3. Forgotten name 707 4. Interrogating witness to discover names of informants . . . 707 5. Omitting from testimony or document 707 6. Trade designation 708 7. Parol evidence 708 NATIONALITY. 1. Of person 709 2. Of vessel 709 NATURALIZATION. 1. Presumptions and burden of proof 710 2. Best and secondary 710 3. Certified copy 711 4. Record conclusive 711 NAVIGABILITY. 1. Judicial notice 711 2. Presumptions and burden of proof 712 3. Government survey 712 NECESSARIES AND NECESSITY. 1. Judicial notice 713 TABLE OF CONTENTS. XXXIX ■2. Burden of proof '^13 3. Presumptions 71* 4. Opinion 714 6. Relevancy 715 NEGATIVE. 1. Presumption of innocence 716 2. Lack of entry in account 717 3. Laclc of entry in public record 717 4. Official act 718 .6. Nonobservation of witness 718 NEW PROMISE. 1. Burden of proof 720 2. Presumption of knowledge 720 .5. Documentary evidence 720 NEWSPAPERS. 1. Not evidence 721 2. Judicial notice 721 NOTICE. 1. Anonymous letter ; stranger 722 2. Possession as notice 723 a. General rules as to effect of possession 723 b. Effect of statutes requiring actual notice as an equiva- lent of registration 725 c. Rules as to scope of the inquiry 726 d. Of what possession is notice 727 e. Requisites and sufficiency of possession 728 f. Possession of tenant as notice 730 g. Possession under contract of purchase 731 h. Possession of vendee under unrecorded deed 732 i. Grantor's possession after conveyance 733 j. Mortgagee or lienor in possession 734 k. Possession of cestui que trust 734 1. Possession by cotenants 735 m. Possession by husband and wife 735 n. Other family relations as affecting possession 737 o. Application of rules to easements 738 p. Estoppel of possessor to assert claim 738 3. Notice to charge with fraud 739 Xl TABLE OF CONTEXTS. 4. Notice to agent 740 a. In general 740 t. Knowledge not acquired in principal's business 741 c. Where agent is personally interested or is perpetrating a fraud 744 d. Notice to officers of corporation 747 c. Agent with conflicting duties 749 f . Notice to subagent 749 5. Authentication 750 6. Record and index 750 7. Lis pendens 750 OATH, 1. To document or instrument 751 a. Oral evidence 751 b. Presumption of authority 751 2. Oath of office 751 a,. Oral evidence 751 b. Time when taken 752 c. How taken 752 OFFICIAL CHARACTER AND ACTS. 1. Judicial notice 753 2. Performance of duty 753 3. Meeting 754 4. Reports of subordinates 755 5. Presumption from act 755 6. Recitals in official instrument 750 7. Declarations 757 8. Official records and registers 758 OPINIONS. 1. Distinction between opinion and observation with judgment 759 2. Questions preliminary to opinion 760 3. Qualification of expert 761 4. Party as expert 761 5. On what questions competent 762 6. Direct testimony on the fact 762 7. Basis of fact for opinion 764 8. Doubtful facts may be assumed 764 9. Assuming fact without evidence 765 10. Preponderance of evidence not necessary 765 11. Written question 766 TABLE OF CONTENTS. xli 12. Critical opinion of other testimony incompetent 766 13. Reason 767 14. Doubt 767 15. Cross-examination 767 16. Impugning expert's examination 767 17. Weight and conclusiveness of expert's opinion 768 ORDER OF COURT. 1. Copy 770 2. Order in special proceeding 770 3. Jurisdictional facts 771 4. Best and secondary 771 5. Informal order 771 6. What is a court order 772 7. Date and term 772 8. Entry for purpose of proving 772 9. Ground 773 10. Impeaching 773 OWNERSHIP. 1. Direct testimony 774 2. Possession 774 a. In general 774 b. Of vpritten instrument 775 3. Hearsay 776 4. Marks, signs, etc 776 5. Entries in account 778 6. Source of ownership 778 a. In general 778 b. Producing document 778 7. Continuance 779 PATERNITY. Inspection 780 PAYMENT. 1. Receipts 782 2. Entry in bank books 783 3. Burden of proof 783 4. Presumption 784 a. From possession of instrument 784 b. From lapse of time 784 5. Oral evidence to vary receipt 786 slii TABLE OF CONTENTS. PERFOEMANCE. Direct testimony 787 PHONOGRAPHS, 788. PHOTOGRAPHS, MAPS, PLANS, ETC. 1. Judicial notice 788 2. Admissibility generally 789 3. Copy 790 4. Photographs of persons 790 5. Photographs of documents or instruments 791 6. Proof of correctness 792 7. Effect and conclusiveness of photographs 793 8. Photographs as secondary evidence 793 8. X-ray photographs 794 PLACE. Inferring from proximity 795 POSITION. Direct testimony 795 POSSESSION, 1. Direct testimony 796 2. Title 796 3. Paying tax, etc 797 4. Judgment against third person 797 5. Presumption of continuance 798 POSSIBILITY. What could have been 799 PREGNANCY. 1. Judicial notice 800 2. Presumption 801 3. Opinion 801 4. Inspection 801 TABLE OF CONTENTS. xliii PREMISES. Oral evidence 802 PRESENCE, 1. Constructive 803 2. Presumption of presence 803 PRINTING. 1. Comparison 804 2. Several impressions of same issue 804 QUALITY. 1. Direct question 804 2. Comparison; reference to other specimen 806 3. Inspection in court 806 QUANTITY. 1. Direct testimony 807 2. Recount 807 3. Comparison 808 RATIFICATION. 1. Allegation 808 2. How proved 809 3. Executory contract 809 4. Legal effect 810 5. Aid by evidence of agency 810 6. Silence on receipt of letter 810 7. What may be ratified 811 REASON. Eight to prove 811 REASONABLENESS. 1. Reasonable diligence 812 2. Reasonable time ,. 812 xliv TABLE OF CONTENTS. EEBUTTAL. 1. The right 813 2. Cumulative testimony in rebuttal 814 3. Allegation 814 4. Anticipatory rebuttal 814 REGULARITY. Bank businesa 815 RESCISSION. Delay 816 RESIDENCE. 1. What is 816 2. Direct testimony 817 3. General reputation 817 4. Declarations and conduct 818 5. Place of business 818 6. Absence 819 7. Fugitive from justice 819 8. Instrument executed out of the jurisdiction 819 9. Deposition 820 10. Presumption of continuance 820 11. Burden of proof 820 REVIVAL. Allegation of succession 821 SATISFACTION. 1. Burden of proof 821 2. Stipulation to satisfy 822 3. Variance 822 SEALS. 1. Material 823 2. Judicial notice 824 3. Direct testimony 824 4. Affixing 825 5. One for several 825 6. Record and omission 826 7. Corporate seal 826 TABLE OF CONTENTS. xlv SEPARATION. Competency of testimony of liusband and wife 826 SERVICE. Affidavits not competent 827 SIGNATURE. 1 . Document produced on notice 827 2. Authority to sign 828 a. Declarations 828 b. Previous recognition by principal 828 3. Oral evidence 828 SIGNS AND SIGNALS. 1. Understanding of vritness 829 2. Dying declarations 829 SPEED, 1. Direct testimony 830 2. Comparison by combining witnesses 832 3. Declarations as part of the res gestce 832 STATUS. Competency of judgment 833 SUNRISE AND SUNSET, Almanac 834 SURETYSHIP. 1. Oral evidence 834 2. Direct testimony 835 3. Burden of proof 835 SURPRISE. Eight to object 835 SURRENDER. 1. Verbal 836 2. Payment as raising presumption 836 xlvi TABLE OF CONTENTS. SURVIVORSHIP. Presumptions and burden of proof 837 TAMPERING, 1. Eight to prove 838 2. Contradiction 839 TELEGRAMS. 1. Not privileged 839 2. Best and secondary evidence 840 3. Presumption of delivery 841 4. Connected correspendence 841 TELEPHONE, 1. Judicial notice 842 2. Recognition of speaker 842 3. Other evidence of identity 842 4. Necessity of identification of speaker 843 5. Agency of operator 843 TENDER. 1. Burden of proof 844 2. Actual production 844 3. Offer and readiness 844 4. Having in sight 844 5. "Willingness" to pay 845 6. Waiver 845 7. Place of tender 845 TESTIMONY (Given in Fokmeb Pboceeding). 1. Proof of former testimony generally 840 2. Deposition 848 3. Identity of parties and subject-matter 849 4. Opportunity to cross-examine 849 5. Oath 850 6. Proof of death, absence, or disqualification 850 7. Diligence in procuring deposition 851 8. Impeachment of witness 851 9. Proving by stenographer reading notes 852 TABLE OF CONTENTS. xlvii 10. Proving by official reporter's transcript SS^' 11. Proving by witness who heard ^5.3 12. Proving by bill of exceptions 854. THREATS. Allegation 855' TIDE. Flow 855 TIME AND DISTANCE. 1. Comparison 856 2. Direct testimony ; opinion 856 a. Time spent 85C b. Distance object visible 856- c. Time or distance to stop train 857 d. Time to get oflf train 858- e. Time necessary for specified distance 859 f. Time necessary for specified work 859- g. Distance within which sparljs from engine will set flre 8511 3. Entries and records 860- TITLE. 1. Direct testimony 861 2. General reputation 861 3. Possession 862' 4. Conveyance by one in possession 862 5. Deed founded on judicial proceedings 863 6. Assessment roll 864 7. Oral evidence 864 8. Admissions 864 9. Declarations 865- 10. Opinion as to marketableness 866 11. Refusal of others to pass 86& TREATMENT. Direct testimony 866 USAGE. 1 . When competent 86T 2. To control meaning 868; xlviii TABLE OF CONTENTS. 3. Not competent to create contract 868 4. Direct testimony 869 5. Single witness 870 6. Single cases 870 7. Foreign law 870 8. Presumption of knowledge 870 9. Testimony as to knowledge 871 10. Common consent 871 11. Cogency of evidence ' 873 VAIN THINGS. The law does not require 872 VALUE. 1. Comparison to lost article 873 2. Cost 874 3. Offers and refusals 875 4. Consideration in deed or bill of sale 876 5. Opinions 876 6. Market reports 877 7. Trade scale 877 8. Assessment 877 9. Things in action 877 10. Foreign coin 878 WAIVER. 1. Oral evidence 879 a. In general 879 b. Notwithstanding stipulation requiring writing 879 2. Direct testimony 879 3. Acts and declarations 880 4. Neither consideration nor estoppel needed 880 6. One objection not waived by another 881 WEALTH. Specific property 881 WEATHER. 1. Records 881 2. Comparison 882 WEIGHT. Standards 883 BRIEF -ON— The Modes of Proving Facts. ABANDONMENT. I. CONTBACTS. 1. Burden of proof. 2. Direct testimony. 3. Letters. 4. Parol evidence of abandomnenti 5. Opinions. 6. Sufficiency of proof. II. DOMICIL. 7. Burden of proof. 8. Presumptions. 9. Documentary evidence. 10. Declarations. 11. Mode of proof, in. Easements. 12. Effect of nonuser generally. 13. Of abutting owner. 14. Highways. a.. Burden of proof. b. Presumptions. c. Weight of facts. 15. Eailway right of way. a. Inference of intent. b. Mode of proof. c. Materiality. d. Weight of facts. 16. Ways. a. Nonuser generally, b. Deviation or use of substituted way. c. Obstructing of, or cutting off access to, way. d. Whose acts in attempting to abandon way are binding on domirsant owner. e. Declarations. Abb. Facts — 1. 2 BEIEF ON PACTS. 17. Water rights. a. Presumptions and burden of proof generally. b. Right of flowage. e. Irrigation rights; ditches; prior appropriation. 18. Mills. IV. Homestead. 19. Burden of proof. 20. Presumptions. 21. Opinions. 22. Hearsay. 23. Declarations. 24. Mode of proof. V. Husband and Wife. 25. Declarations. 26. Presumptions. 27. Eelevancy, sufficiency, and weight of evidence. VI. Insubance. 28. Presumptions. 29. Declarations. 30. Proof of right to abandon. VII. Patents and Teademaeks. 31. Presumptions. 32. Burden of proof. 33. Declarations. 34. Delay. VIII. Rights Generally. 35. Burden of proof. 36. Presumptions. 37. Adverse possession. 38. Mining rights. 39. Pleading. 40. Proof of intent. I. CoiTTEACTS. Right to abandon contract, see note to Lake Shore & M. S. E. Co. T. Richards, 30 L.R.A. 33. 1. Burden of proof. In an action on a contract the defendant has the burden of proving that the plaintiff abandoned the contract.^ 1 Ross V. Stevens, 45 N. J. Eq. 231, 13 Atl. 225. 2. Direct testimony. Witness may testify that a contract was abandoned, leaving details to be called out on cross-examination.^ iWallig V. Randall, 81 N. Y. 164, Aff'g 16 Hun, 33; Philadelphia, W. & B. R. Co. V. Trimble, 10 Wall. 367, 383, 19 L. ed. 948, 953. ABANDONMENT. 3 3. Letters. Letters of a party tending to show that he exercised some influence over a third person as to how he should proceed under a contract are admissible as admissions upon the issue whether such third person abandoned the contract.* iHood V. Olin, 68 Mich. 165, 36 N. W. 177. 4. Parol evidence of abandonment. A contract under seal may be waived by an executed parol agreement,* but evidence of parol assent given without consid- eration, to a departure from a sealed contract, is inadmissible.^ It may be proved that after a written agreement was made the parties entered into another oral agreement ; ' and a writ- ten contract altered by parol is admissible as an inducement to the parol agreement and evidence of its terms.* 1 Munroe v. Perkins, 9 Pick. 298, 20 Am. Dec. 475. 2 Delacroix v. Bulkley, 13 Wend. 71. 8 Richardson v. Hooper, 13 Pick. 446 ; Brewster v. Countryman, 12 Wend. 446; Hubbell v. Ream, 31 Iowa, 289; Wods v. Russell (Pa.) 1 Cent. Rep. 336; Sharkey v. Miller, 69 111. 560. 4 Chiles V. Jones, 3 B. Mon. 51; Delaney v. Linder, 22 Neb. 274, 34 N. W. 630. 5. Opinions. Whether or not a contract has been abandoned must be proved by evidence of the facts constituting the abandonment, and not by the opinion of witnesses.* 1 Jacksonville & A. R. Co. v. Woodworth, 26 Fla. 368, 8 So. 177. 6. Sufficiency of proof. Acts and omissions tending to show an abandonment are admissible.* iCasey v. Dunn, 29 Mo. App. 14. (The owner's refusal to pay instal- ments stipulated in a building contract, or a completion of the work under his supervision, on the builder's refusal to proceed, does not evidence an abandonment of a contract which provided that upon certain failures the owner might refuse to pay the instal- ments.) 4 BEIEP ON FACTS. Reed v. Hayt, 109 N. Y. 659, 17 N. E. 418. (An abandonment, by mutual consent, of a contract for the sale of corporate stock, is not shown by the fact that the seller, after a breach of the contract by the pur- chaser, gave him certain options outside the original contract, none of which were carried out.) Gibson v. Vetter, 162 Pa. 26, 29 Atl. 292. (To establish a parol lease which would change the term the lessee is held to the same strictness of proof that would be required of the lessor to establish a for- feiture for condition broken.) A subcontractor who suspended work on the contract and consented to the appointment of a receiver was held to have abandoned the con- tract. Mtna Indemnity Co. v. George A. Fuller Go. Ill Md. 321, 73 Atl. 738, 74 Atl. 369. Letters from a contracting party indicating his intention not to perform the contract, and positively refusing to perform it, are sufiBcient evidence of abandonment. Russell v. Excelsior Stove & Mfg. Co. 120 111. App. 23. II. DOMICIL. 7. Burden of proof. The burden of proof is upon the party alleging the change and abandonment of domicil.^ 1 Price V. Price, 156 Pa. 617, 27 Atl. 291; Kilburn v. Bennett, 4 Met. 199; Lowry's Estate, 5 Pa. Dist. R. 729, 18 Pa. Co. Ct. 591; People ex rel. Winston v. Winston, 25 Misc. 676, 56 N. Y. Supp. 323. (A party who relies upon nonresidence, but is shown to have lately been domiciled within the state, has the burden of proving a change of residence with an intention to permanently abandon his domieil). Hightower v. Ogletree, 114 Ala. 94, 21 So. 934. (Removal of one with his family to another state raises a presumption that his domieil is in such state, and the burden is upon one denying his non- residence to prove that he has not in fact abandoned his residence in the state. ) 8. Presumptions. Domieil once acquired is presumed to continue until it is clearly shown to have been abandoned.^ 1 Keith v. Stetter, 25 Kan. 100; Hatch v. Smith, 6 Kan. App. 645, 49 Pac. 698; Kilburn v. Bennett, 3 Met. 199; Price v. Price, 156 Pa. 617, 27 Atl. 291 ; Botna Valley State Bank v. Silver City Bank, 87 Iowa, 479, ABANDOIirMENT. 5 54 N. W. 472. (Proof of absence for nine days is insufficient to over- come the presumption of continuance, without proof of presence else- where, or of any motive or intent to change domicil.) Ludlow V. Szold, 90 Iowa, 175, 57 N. W. 676. (Failure to acquire a new residence does not make the presumption of the continuance of the old one conclusive, but such presumption may be rebutted by any compe- tent facts showing abandonment.) Belmont v. Vinalhaven, 82 Me. 524, 20 Atl. 89. (There is no presumption of law that one who leaves the place of his residence for the purpose of working in another intends to return when his labor has ended, but there may be some presumption of fact to that effect.) 9. Documentary evidence. A letter written to the assessors of the town which he left, by one who claims to have changed his domicil, which contains declarations as to his residence, is inadmissible in his favor in an action to recover the amount of a tax assessed. ISTor are deeds in which he is grantor, nor the wills of himself or his father, describing him as of another place, nor the fact that he was accustomed to discuss its affairs, admissible in his favor; but a deed running to him as grantee is admissible against him.* iWeld V. Boston, 126 Mass. 166; Wright v. Boston, 126 Mass. 161. 10. Declarations. Declarations of intention to abandon a residence are not con- clusive, but may be disproved by acts and conduct.* The declarations of a party, made in his own favor, are as a general rule inadmissible on the question of domicil, but when made contemporaneously with and accompanying some act which is in itself admissible and expressive of its character and motive, they may be received as part of the res gestae? 1 Keith V. Stetter, 25 Kan. 100; Kreitz v. Behrensmeyer, 125 111. 141, 8 Am. St. Rep. 349, 17 N. E. 232. SFulham v. Howe, 62 Vt. 386, 20 Atl. 101; Wright v. Boston, 126 Mass. 161; Brookfield v. Warren, 128 Mass. 287; Pickering v. Cambridge, 144 Mass. 244, 10 N. E. 827; Richmond v. Thomaston, 38 Me. 232; Church V. Rowell, 49 Me. 367. Belmont v. Vinalhaven, 82 Me. 524, 20 Atl. 529 (declarations admissible 6 BRIEF ON FACTS. when made at or near the time of the alleged residence, but not when made twenty years after ) . Viles V. Waltham, 157 Mass. 542, 34 Am. St. Rep. 311, 32 N. B. 901. (The declarations must be made within a reasonable time before or after removal.) Kilburn v. Bennett, 3 Met. 199. (A declaration of an intention to change domicil, made about three weeks before removal, is admissible.) 11. Mode of proof. Social and domestic relations and minor particulars of pri- vate life, habits, character, and business may be inquired into, to an extent resting largely in the discretion of the court, in determining questions of domicil.^ Long-continued change of residence is strong evidence of in- tent to change the domicil,* but does not necessarily establish such fact.^ To establish an abandonment of a domicil, there must be not only a removal, but also an intention to acquire a new domicil.* iHallett V. Bassett, 100 Mass. 170; Thayer v. Boston, 124 Mass. 132, 26 Am. Rep. 650; Fulham v. Howe, 62 Vt. 386, 20 Atl. 101. 2 Dupuy V. Wurtz, 53 N. Y. 556. s Steinman v. Erisman, 8 Lane. L. Rev. 177. 4 Beekman v. Beekman, 53 Fla. 858, 43 So. 923. The removal of an insane person to an asylum in another county was held not an abandonment of her legal residence. Cecil v. Robertson, 32 Ky. L. Rep. 357, 105 S. W. 926. Moffett V. Hill, 131 111. 239, 22 N. E. 821. (Voting in one place is almost conclusive evidence of the abandonment of residence in another, where a, permanent abode is a statutory requisite to the right of suffrage.) Pickering v. Cambridge, 144 Mass. 244, 10 N. E. 827. (Evidence that a person declined to accept a nomination for municipal office, on the ground that he had no connection with or interest in the affairs of the city, is too remote to be admitted to show that he afterwards actually abandoned his domicil therein.) Buchanan v. Cook, 70 Vt. 168, 40 Atl. 102. (That a person after an al- leged change of residence assumed to act as treasurer of a school- dis- trict situated in the village from which he claims to have removed is competent. ) III. EASEME]SfTS., 12. Effect of nonuser generally. The general rule in relation to the loss of an easement by ABANDONMESTT. ' abandonment is that mere nonuser will not of itself extinguish it, but is simply evidence tending to show an intention to aban- don the right. ^ In some cases it has been held that there must also be an adverse use of the servient estate for the prescriptive period.* Some expressions may be found in the cases to the effect that a cesser of the use, coupled with any act clearly in- dicating an intention to . abandon the right, would have the same effect as an express release of the easement vnthout refer- ence to time,' and that a cesser to use for a less period than twenty years, accompanied by acts clearly indicating an intent to abandon the right, is sufficient.* The controlling element is not so much the duration of the cesser to use the easement as the nature of the act done by the owner thereof, or of the adverse act acquiesced in by him, and the intention so indicated, that is material.^ The effect of the nonuser will depend upon the circumstances of the case, and it is a question of intention.* In some eases a distinction has been made between easements acquired by deed and those acquired by prescription, these cases holding that mere nonuser of a prescriptive easement for the period of the statute of limitations will work a termination of the easement,' but that no period of nonuser of an easement resting in grant, no matter how long continued, will, in the absence of a statute to that effect, destroy the easement, but that there must be clear and convincing proof of an intention to abandon the right,' which may be shown by acts done by the owner of the dominant tenement, or by his acquiescence in acts done by the owner of the servient tenement.^ This distinction has also been adopted in some states by statute. But in many cases the distinction is ignored, and it has been declared to be unsound on the ground that prescription is based on the pre- sumption of a grant.*" And it has been held that, while nonuser for the prescriptive period of an easement acquired by prescrip- tion is evidence of an intention to abandon the easement,** yet it is open to explanation, and may be controlled by proof that the owner had no such intention while omitting to use it.** •iCurran v. Louisville, 83 Ky. 628; Willey v. Norfolk Southern R. Co. 96 N. C. 408, 1 S. E. 446; Kuecken v. Voltz, 110 111. 264; Wiggins v. 8 BEIEF ON FACTS. McCleary, 49 N. Y. 348; Williams v. Nelson, 23 Pick. 141, 34 Am. Dec. 45. 2 Dill V. Board of Education, 47 N. J. Eq. 421, 10 L.R.A. 276, 20 Atl. 739 ; Eddy V. Chace, 140 Mass. 471, 5 N. E. 306; Smith v. Worn, 93 Cal. 206, 28 Pac. 944; Lathrop v. Eisner, 93 Mich. 599, 53 N. W. 791; Arnold v. Stevens, 24 Pick. 106, 35 Am. Dec. 305, 1 Mor. Min. Kep. 176. 3 Glenn v. Davis, 35 Md. 208, 6 Am. Rep. 389; Volger v. Geiss, 51 Md. 410; Liggins v. Inge, 7 Bing. 682, 5 Moore P. 712, 9 L. J. C. P. 202; Reg. V. Chorley, 12 Q. B. 515, 3 Cox, C. C. 262. 4 Moore v. Rawson, 3 Barn. & C. 332, 5 Dowl. & R. 234, 3 L. J. K. B. 32, 27 Revised Rep. 375; Liggins v. Inge, 7 Bing. 682, 5 Moore & P. 712, 9 L. J. C. P. 202; Dyer v. Sanford, 9 Met. 395, 43 Am. Dec. 399; Snell V. Levitt, 110 N. Y. 595, 1 L.R.A. 414, 18 N. E. 370. 6 Reg. V. Chorley, 12 Q. B. 515, 3 Cox, C. C. 262; Pope v. Devereux, 5 Gray, 409. 6 Ward V. Ward, 14 Eng. L. & Eq. Rep. 413; Wiggins v. McCleary, 49 N. Y. 348. 7 Potts V. Clark, 23 Ky. L. Eep. 332, 62 S. W. 884; Cox v. Forrest, 60 Md. 74; Arnold v. Stevens, 24 Pick. 106, 35 Am. Dee. 305; 1 Mor. Min. Eep. 176; Smyles v. Hastings, 22 N. Y. 217; affirming 24 Barb. 44; Pope V. O'Hara, 48 N. Y. 446; Miller v. Garlock, 8 Barb. 153; Cuth- bert V. Lawton, 3 M'Cord, L. 194. SHennessy v. Murdock, 137 N. Y. 317, 33 N. B. 330; Snell v. Levitt, 11» N. Y. 595, 1 L.R.A. 414, 18 N. E. 370; Welsh v. Taylor, 134 N. Y. 450, 18 L.E.A. 535, 31 N. E. 896; Jewett v. Jewett, 16 Barb. 150; Andrus V. National Sugar Eef. Co. 93 App. Div. 377, 87 N. Y. Supp. 671; Smith V. Worn, 93 Cal. 206, 28 Pac. 944; Petitpierre v. Maguire, 155 Oal. 242, 100 Pac. 690; Smyles v. Hastings, 22 N. Y. 224; Dill v. Board of Education, 47 N. J. Eq. 421, 10 L.E.A. 276, 20 Atl. 739; Bannon v. Angler, 2 Allen, 128. 9 Dyer v. Sanford, 9 Met. 395, 43 Am. Dec. 399 ; Chandler v. Jamaica Pond Aqueduct Corp. 125 Mass. 544; Bell v. Golding, 23 Oat. App. Rep. 485; Jennison v. Walker, 11 Gray, 423. lOVeghte v. Earitan Water Power Co. 19 N. J. Eq. 156; 3 Kent, Com. 449, note by Holmes. "Corning v. Gould, 16 Wend. 631. 12 Pratt V. Sweetser, 68 Me. 344. For a review of the other cases on the effect of nonuser of an easement, see note in 18 L.R.A. 535; and on the question whether the failure to maintain an easement will raise a presumption of its abandonment, see note in 2 L.R.A. (N.S.) 832. 13. Of abutting owner. A property owner's unconditional consent to the construction ABANDONMENT. » and operation of an elevated railway in front of his premises is an abandonment pro tanio of tlie easements of light, air, and access, when he has no other rights in the street.* iWhite V. Manhattan R. Co. 139 N. Y. 19, 34 N. E. 887. 14. Highways. a. Burden of proof. — The burden of proof is upon the party who alleges the abandonment of a highway.* iHorey v. Haverstraw, 124 N. Y. 273, 26 N. E. 632; Eeilly v. Racine, 51 Wis. 526, 8 N. W. 417. i. Presumptions. — The abandonment of a highway may be presumed from nonuser* or the creation and use of a new road in its place.^ Abandonment will be presumed where, for twenty years or more, adjoining owners have been permitted to occupy a part of the road; and when to disturb long-established lines would involve criminal consequences or work serious injustice to valuable improvements made in good faith, such presumption will be conclusive.' But abandonment of land acquired for or dedicated to public purposes will not be presumed from mere nonuser, or because temporarily left open to the public,* or used for other pur- poses.* iDevaux v. Detroit, Hair. Ch. (Mich.) 98; Beardslee v. French, 7 Conn. 125, 18 Am. Dec. 86 (from its desertion for nearly a century) ; Fox v. Hart, 11 Ohio, 414 (from abandonment for a long period) ; Jefferson- yille, M. & I. R. Co. v. O'Connor, 37 Ind. 95 (from nonuser and unfit condition for use for thirty-six years ) . ■Nonuser for twenty years is some evidence of an intent to abandon a high- way; and, when accompanied by affirmative evidence showing an inten- tion to abandon, the public interest is extinguished. Woodruff v. Pad- dock, 56 Hun, 288, 9 N. Y. Supp. 381. Nonuser for the statutory period, accompanied by an occupation of the land by an individual under a claim of right, will be deemed an aban- donment. Burroughs v. Cherokee, 134 Iowa, 429, 109 N. W. 876. 1 Nonuser of a highway for thirty-three years, during which time the high- way had become impassable for vehicles, other highways being provided in the vicinity, was deemed sufficient to raise a presumption of aban- 10 BEIEF ON FACTS. donment. Phillips v. Lawrence, 23 Ky. L. Rep. 824, 64 S. W. 411. Nonuser of a highway for many years is prima facie evidence of abandon- ment if voluntary and intentional. Hartford v. -New York & N. E. K. Co. 59 Conn. 250, 22 Atl. 37. Contra : Lawreneeburgh v. Wesler, 10 Ind. App. 153, 37 N. E. 956. Abandonment does not depend upon nonuser, but is. to be established like any other question of fact. Brookhausen v. Boehland, 36 111. App. 224. And the proof to establish it must be strong enough to establish another line as the road. Champlin v. Morgan, 20 111. 181. 2 Shelby v. State, 10 Humph. 165; Grube v. Nichols, 36 111. 92; Flick's Estate, 6 Kulp, 329. But the fact that land has been given for a new highway is not sufficient to show an abandonment of the old one. Galbraith v. Littiech, 73 111. 210. That travel has been substantially diverted to a new road, and that the old one is not worked, and that portions have been fenced in, do not show an abandonment. Kelly Nail & Iron Co. v. Lawrence Furnace Co. 46 Ohio St. 544, 5 L.R.A. 652, 22 N. B. 639. 3 Hamilton v. State, 106 Ind. 361, 7 N. E. 9 ; Brooks v. Riding, 46 Ind. 15, 4 New York v. Carleton, 113 N. Y. 284, 21 N. E. 55; Parker v. St. Paul, 47 Minn. 317, 50 N. W. 247; Knowles v. Knowles, 25 R. L 325, 55 Atl. 755. Failure to repair or work a road for seven years was held not to constitute an abandonment of it. Brumley v. State, 83 Ark. 236, 103 S. W. 615. A temporary suspension of the use of a bridge on account of its weakness, or its destruction, does not amount to an abandonment of it as a public way. Re Rutland, 70 Misc. 82, 128 N. Y. Supp. 94. 6 Baltimore v. Frick, 82 Md. 77, 33 Atl. 435; Curran v. Louisville, 83 Ky. 628. The construction of a retaining wall upon land acquired by a city for a slope for a street grade, although evidence of an intent to abandon the casement, does not establish such fact. Kuschke v. St. Paul, 45 Minn. 225, 47 N. W. 786. The grant to a railroad company of a franchise (not exclusive) to occupy a highway with its tracks was held not an abandonment of the high- way by the public. Turney v. Southern P. Co. 44 Or. 280, 75 Pac. 144, 76 Pac. 1080. c. Weight of facts. — Encroachments upon a highway, -which do not obstruct travel, do not show a nonuser ^ or abandonment ; * nor does the obstruction of a highway for a time by fences,' or failure to repair,* work/ or improve ® the way, constitute an abandonment. iGrandville v. Jenison, 84 Mich. 54, 47 N. W. 600. ABANDONMENT. 11 »Driggs V. Phillips, 103 N. Y. 77, 8 N. E. 514; Horey v. Haverstraw, 47 Hun, 356; Hentzler v. Bradbury, 5 Kan. App. 1, 47 Pao. 330. 3 Brown v. Hiatt, 16 Ind. App. 340, 45 N. B. 481. 4 Lawreneeburgh v. Wesler, 10 Ind. App. 153, 37 N. E. 956. 6 Storm V. Barger, 43 111. App. 173. 6 Louisiana Ice Mfg. Co. v. New Orleans, 43 La. Ann. 217, 9 So. 21. For a more extensive discussion of the question of abandonment of a high- way, see note in 26 L.K.A. 449 15. Eailway right of way. ft. Inference of intent. — The intention of a corporation to abandon an easement may be inferred from circumstances.^ 1 Hatch V. Cincinnati & I. K. Co. 18 Ohio St. 92; Central I. E,. Co. v. Moulton & A. R. Co. 57 Iowa, 249, 10 N. W. 639. h. Mode of proof. — An abandonment of a railroad right of way is properly shown by acts which do not appear of record.* 1 Wescott V. New York & N. E. R. Co. 152 Mass. 465, 25 N. E. 840. c. Materiality. — Evidence as to the intent of a railroad to permanently abandon a right of way is immaterial and incom- petent, where it does not claim temporary abandonment, but that the public was better served by running trains over its other tracks.* 1 Hickox T. Chicago & C. S. E. Co. 94 Mich. 237, 53 N. W. 1105. d. Weight of facts.— Mere nonuser will not work an extin- guishment of a railroad right of way, however acquired, in the absence of adverse possession by the servient owner, or un- equivocal acts on the part of the railroad evincing a clear in- tention to abandon it.* 'Nov will use of the property for a purpose foreign to that for which the land was taken constitute an abandonment.^ 1 Roanoke Investment Co. v. Kansas City & S. B. R. Co. 108 Mo. 50, 17 S. W. 1000; Pittsburgh, Ft. W. & C. R. Co. v. Peet, 152 Pa. 488, 19'l.R.A. 467, 25 Atl. 612 (nonuaer by a railway of land acquired with a view to future use not an abandonment) ; Lorick & Lowrance v. Southern R. Co. 87 S. C. 71, 68 S. E. 931. 12 BRIEF ON PACTS. Nonuser and intention to abandon must coexist. Stannard Y. Aurora, E. & C. R. Co. 220 111. 469, 77 N. E. 254; Enfield Mfg. Co. v. Ward, 190 Mass. 314, 76 N. E. 1053; Denison & S. E Co. v. St. Louis South- western E. Co. 96 Tex. 233, 72 S. W. 161. An abandonment of a street railroad franchise is not established by proof that the company ran only one car a day over its track, and sus- pended operations for several days, at a time when there was snow on the ground, — especially when the company had applied for leave to change its motive power, and have been prevented by municipal or- dinance, and ran the one car a day for the purpose of preserving its franchise. Forty-second Street, M. & St. N. Ave. R. Co. v. Cantor, 104 App. Div. 476, 93 N. Y. Supp. 943. But a, right of way is abandoned by removal of the track, fences, and a bridge with intention to abandon the easement. Jones v. Van Boehove, 103 Mich. 98, 61 N. W. 342. In Iowa, by statute, nonuser for eight years is deemed an abandonment. Gil v. Chicago & N. W. R. Co. 117 Iowa, 278, 90 N. W. 606. 2 Locks & Canals v. Nashua & L. R. Co. 104 Mass. 1, 6 Am. Rep. 181; Prospect Park & C. I. R. Co. v. Williamson, 91 N. Y. 552 (construction of conveniences for passengers and decorations at seaside resort) ; Roby V New York C. & H. R. R. Co. 142 N. Y. 176, 36 N. E. 1053 (lease of land for a coal yard). That a railroad permitted its grantor to use a portion of the land pend- ing the company's need of it was held not an abandonment. Graham V. St. Louis, I. M. & S. E. Co. 69 Ark. 562, 65 S. W. 1048, 66 S. W. 344. 16. Ways. a. Nonuser generally.- — Mere nonuser of a way arising either by prescription or grant, for a period short of that prescribed by the statute of limitations, will not extinguish the easement un- less accompanied by an intention on the part of the dominant owner to abandon it.'' And a way resting in grant is not lost by mere nonuser, no matter how long continued.^ It is not necessary that the dominant owner of a way arising by grant should use it frequently, or at all, in order to retain the ease- ment.^ And it has been said that, where there has been no change in the title of a servient estate, and no one has been led to change his position or condition in consequence of the act of the owner of an easement resting in grant, temporary cesser of use, or acts of the latter inconsistent with the existence of the right, do not extinguish the easement.* However, if, dur- ing the period prescribed by the statute of limitations, a way ABANDONMENT. 13 is in the open, visible, notorious, and hostile adverse posses- sion of another, the easement will be extinguished, even when resting in grant.* And nonuser of a way which has become obliterated so as not to be notice to a purchaser of its existence will extinguish the easement.' And if nonuser of a way, even though resting in grant, and no matter for how short a time, is accompanied by an intent on the part of the dominant owner to abandon the easement, it will work an extinguishment there- of.^ It is not the duration of a cesser of use, but the nature of the act done by the dominant owner, or of the adverse act acquiesced in by him, and the intention which the one or the other indicates, that is material.' But there must be some act on the part of the dominant owner clearly indicating an inten- tion to give up and abandon the easement.® lEdgerton v. McMullan, 55 Kan. 90, 39 Pac. 1021; Crigler v. Newman, 29 Ky. L. Eep. 27, 91 S. W. 706 ; Tabbutt v. Grant, 94 Me. 371, 47 Atl. 899 ; Cox V. Forrest, 60 Md. 74; Emerson v. Wiley, 10 Pick. 310; Manning V. Port Reading E. Co. 54 N. J. Eq. 46, 33 Atl. 802; Miller v. Gar- loek, 8 Barb. 153; Weaver v. Getz, 16 Pa. Super. Ct. 418; Cuthbert V. Lawton, 3 M'Cord, L. 194. A pasaway was deemed not abandoned because the person entitled to the right could not and did not use it by reason of an encroachment existing at the time of the grant. Dewire v. Hanley, 79 Conn. 454, 65 Atl. 573. "Smith V. Worn, 93 Cal. 206, 28 Pac. 944; Reed v. Gasser, 130 Iowa, 87, 106 N. W. 383; Edgerton v. McMullan, 55 Kan. 90, 39 Pac. 1021; White V. Crawford, 10 Mass. 183; Lathrop v. Eisner, 93 Mich. 599, 53 N. W. 791; Riehle v. Heulings, 38 N. J. Eq. 20; Smyles V. Hast- ings, 22 N. Y. 217, affirming 22 Barb. 44; Pope v. O'Hara, 48 N. Y. 446; Valentine v. Schreiber, 3 App. Div. 235, 38 N. Y. Supp. 417; Andrus v. ISTational Sugar Ref. Co. 93 App. Div. 377, 87 N. Y. 671, affirmed without opinion in 183 N. Y. 580, 76 N. E. 1088 ; Richmond v. Bennett, 205 Pa. 470, 55 Atl. 17; Bombaugh v. Miller, 82 Pa. 203; Johnson v. Stitt, 21 R. I. 429, 44 Atl. 513; Brown v. Oregon Short Line R. Co. 36 Utah, 257, 24 L.E.A.(N.S.) 86, 102 Pac. 740; Watts v. C. I. Johnson & B. Real Estate Corp. 105 Va. 519, 54 S. E. 317. • Hofherr v. Mede, 226 111. 320, 80 N. E. 893; Heughes v. Galusha Stove Co. 133 App. Div. 814, 118 N. Y. Supp. 109; James v. Stevenson [1893] A. C. 162, 62 L. J. P. C. N. S. 51, 1 Reports, 324, 68 L. T. N. S. 639. 4iyier V. Cooper, 47 Hun, 94. S Reed v. Gasser, 130 Iowa, 87, 106 N. W. 383 ; Edgerton v. McMullan, 55 Kan. 90, 39 Pac. 1021 ; Bannon v. Angler, 2 Allen, 128 ; Perth Amboy 14 BRIEF ON FACTS. Terra Cotta Co. v. Ryan, 68 N. J. L. 474, 53 Atl. 699 ; Smyles v. Hast- ings, 22 N. Y. 217, affirming 24 Barb. 44; McCullough v. Board Ex- change Co. 101 App. Div. 566, 92 N. Y. Supp. 533, affirmed without opinion in 184 N. Y. 592, 77 N. E. 1191; Brady v. Brady, 31 Misc. 411, 65 N. Y. Supp. 621, s. c. on second appeal, sub. nom. reversed on other points in Brady v. Smith, 88 App. Div. 427, 84 N. Y. Supp. 1119, 181 N. Y. 178, 106 Am. St. Rep. 531, 73 N. E. 963, 2 A. & E. Ann. Cas. 636; Boyd v. Hunt, 102 Tenn. 495, 52 S. W. 131; Weaver v. Getz, 16 Pa. Super. Ct. 418; Greenmount Cemetery Co.'s Appeal, 1 Sadler (Pa.) 371, 4 Atl. 528. 6 Kammerling v. Grover, 9 Ind. App. 628, 36 N. E. 922. ^Hayford v. Spokesfield, 100 Mass. 491; Mason v. Ross, 75 N. J. Eq. 136, 71 Atl. 141; Grain v. Fox, 16 Barb. 184; Welsh v. Taylor, 134 N. Y. 450, 18 L.R.A. 535, 31 N. E. 896, reversing 54 Hun, 636, and 50 Hun, 137, 2 N. Y. Supp. 815 ; Norris v. Hoffman, 118 N. Y. Supp. 156, affirming 62 Misc. 385, 115 N. Y. Supp. 890; Lathrop v. Eisner, 93 Mich. 599, 53 N. W. 791; Boyd v. Hunt, 102 Tenn. 495, 52 S. W. 131; Brown v. Oregon Short Line R. Co. 36 Utah, 257, 24 L.R.A.(N.S.) 86, 102 Pae. 740; Scott v. Moore, 98 Va. 668, 81 Am. St. Rep. 749, 37 S. E. 342. 8 Pope V. Devereux, 5 Gray, 409 ; Fitzpatrick v. Boston & M. R. Co. 84 Me. 33, 24 Atl. 432; Vogler v. Geiss, 51 Md. 407; Mason v. Ross, 75 N. J. Eq. 136, 71 Atl. 141. Nonuser of a right of way, coupled with user for farm purposes of por- tions of the servient land by its owner at times when the easement is not required, cannot constitute an abandonment of the entire right, and is inconclusive to prove an abandonment of portions thereof. James v. Stevenson [1893] A. C. 162, 62 L. J. P. C. N. S. 51, 1 Reports, 324, 68 L. T. N. S. 539. 9 King V. Murphy, 140 Mass. 254, 4 N. E. 566 ; Marshall v. Wenninger, 20 Misc. 527, 46 N. Y. Supp. 670; Rupprecht v. St. Mary's Roman Catholic Church Soc. 131 App. Mv. 564, 115 N. Y. Supp. 926. For a full review of the authorities on the question of abandonment or loss of private way by nonuser, or improvements inconsistent with its use, see notes in 22 L.R.A. (N.S.) 880. 6. Deviation or use of substituted way. — A temporary devi- ation from the original way, or use of the substituted way for the convenience of either the dominant or servient owner, is not sufficient to show an abandonment.^ While user of another way equally convenient may be strong evidence of abandonment, if accompanied with evidence of an entire nonuser of the old way, it cannot operate to extinguish the old way without proof of an intention to abandon.* ABANDONMENT. 15 But the use of a substituted way may be evidence of abandon- ment, if necessitated by a denial of the use of or an obstruction of the original way.* So, abandonment may occur by using a substituted way without objection for many years.* 1 Johnson v. Clark, 22 Ky. L. Eep. 418, 57 S. W. 474; Crigler v. Newman, 29 Ky. L. Eep. 27, 91 S. W. 706; Weaver v. Getz, 16 Pa. Super. Ct. 418; Crounse v. Wemple, 29 N. Y. 540; Cuthbert v. Lawton, 3 M'Cord, L. 194; Ward v. Ward, 7 Exch. 838, 21 L. J. Exoh. N. S. 334. 2 Jamaica Pond Aqueduct Corp. v. Chandler, 121 Mass. 3. Nor is an abandonment of a way leading to a well shown by the fact that for six years the dominant owner had used, without the permission of or objection from the servient owner, another way over his land, dur- ing which time the original way was used by a tenant of the dominant owner, where, when the servient owner placed a, fence across the latter way, the dominant owner made a prompt protest. Tabbutt v. Grant, 94 Me. 371, 47 Atl. 899. So, where access to a prescriptive way was destroyed by lowering the grade of the highway, and the owner of the servient estate closed the way and opened another entrance 70 feet distant, which the dominant owner used for eleven years, when it was closed by the former, the right to the original way was not lost by its nonuse. Nichols v. Peck, 70 Conn. 439, 40 L.E.A. 81, 39 Atl. 803. Nor does the closing of a gate by one entitled to a passway, and his mak- ing an opening in the fence for another passway, work an abandonment of his right to use the original passway. Faulkner v. Duflf, 14 Ky. L. Eep. 227, 20 S. W. 227. 3 Weaver v. Getz, 16 Pa. Super Ct. 418. 4Starkie v. Eichmond, 155 Mass. 188, 29 N. E. 770. c. Obstruction of, or cutting off access to, way. — 'Facts -wlilch clearly show the intention of one entitled to the use of a private way to abandon it are sufficient, though the obstruction mani- festing such intention is not of a more permanent character than a board or rail fence.* But the fact that the dominant owner cuts off his access to a way acquired by grant does not, of itself, disclose an intention to abandon the easement.* Thus, an easement is not destroyed by the act of the domi- nant owner in obstructing a portion thereof with buildings and fences, unless an intention to abandon the easempnt appears.' And the fact that the dominant owner permits a stranger to obstruct a way with a building and place a fence across the way, 16 BEIEF ON FACTS. around whicli the former deviates in using the way, does not disclose an intention to abandon the easement.* But the erec- tion of fences across a way by the dominant owner, and its non- user for five or six years, in connection with the fact that he has no longer any use for the way, and plows up and cultivates the land covered by it, discloses an intention to abandon the easement.* And an easement will be considered abandoned where the servient owner, vsrith the knowledge of the dominant owner, erects and maintains a building upon a way for fifteen years.* So, the fact that the dominant owner knows that the servient owner is erecting a wall across a way and building a structure thereon, and makes no complaint, is evidence of an estoppel in pais? 1 Grain v. Fox, 16 Barb. 184. S Welsh V. Taylor, 134 N. Y. 450, 18 L.R.A. 535, 31 N. E. 896, reversing 54 Hun, 636, and 50 Hun, 137, 2 N. Y. Supp. 815; Watts v. C. I. John- son & B. Real Estate Corp. 105 Va. 519, 54 S. E. 317; Cook v. Bath, L. R. 6 Eq. 177. Where the dominant owner erects a brick wall on the line of a way, an intention to abandon the easement is not shown, where he leaves a door therein to give access to the way. Boyd v. Hunt, 102 Tenn. 495, 52 S. W. 131. The maintenance for seven years of a board fence over a right of way ob- tained by grant does not prove an abandonment. Hayford v. Spokes- field, 100 Mass. 491. But an abandonment is shown where the dominant owner cuts off his access to a, way by erecting a building across it, and does not use the easement for twenty years. Tudor Boiler Mfg. Co. v. I. E. Greenwald Co. 26 Ohio C. C. 556, 5 Ohio C. C. N. S. 37. 3 Wood V. Carter, 70 111. App. 217 ; Schaidt v. Blaul, 66 Md. 141, 6 Atl. 669 ; New England Structural Co. v. Everett Distilling Co. 189 Mass. 145, 75 N. E. 85 ; Bentley v. Root, 19 R. I. 205, 32 Atl. 918. 4 Peck V. Lloyd, 38 Conn. 666. 8 Grain v. Fox, 16 Barb. 184. «Bell v. Golding, 23 Ont. App. Rep. 485. 1 Arnold v. Cornman, 50 Pa. 361. But see Collins v. St. Peters, 65 Vt. 618, 27 Atl. 425; Rogers v. Stewart, 5 Vt. 215, 26 Am. Dec. 298. d. Whose acts in attempting to abandon way are binding on dominant owner. — ISTo act of a tenant of the dominant owner, done without the latter's knowledge or acquiescence, will work ABANDONMENT. 17 an extinguishment.* So, the acts of a life tenant in posses- sion cannot affect the rights of the remainderman, who was the dominant owner.^ So, a mortgagor cannot, by opening a new way over lands owned by him, abandon the passway acquired by grant, so as to bind the mortgagee.' iTeachout v. Capital Lodge, I. 0. 0. F. 128 Iowa, 380, 104 N. W. 4.40; Vogler V. Geiss, 51 Md. 407; Scott v. Moore, 98 Va. 668, 81 Am. St. Eep. 749, 37 S. E. 342. 2 Browne v. Methodist Episcopal Church, 37 Md. 108 ; Welsh v. Taylor, 134 N. Y. 450, 18 L.R.A. 535, 31 N. E. 896, reversing 54 Hun, 636 and 50 Hun, 137, 2 N. Y. Supp. 815; Boyd v. Hunt, 102 Tenn. 495, 52 S. W. 131. s Duval V. Becker, 81 Md. 537, 32 Atl. 308. e. Declarations. — ^Declarations and acts of a grantor showing the relinquishment of a right of way by him while owner of the dominant estate are admissible.* 1 Warshauer v. Randall, 109 Mass. 586; King v. Murphy, 140 Mass, 254, 4 N. E. 566. Evidence of an executed oral agreement between the owners of the domi- nant and servient tenements to discontinue the old way, acquired by prescription, and to substitute a new one, is competent evidence of a surrender of the old right of way. Pope v. Devereux, 5 Gray, 409. 17. Water rights. a. Presumptions and burden of proof generally. — Abandon- ment of property in a dam and ditch for mining purposes will not be presumed from lapse of time ; * nor will abandonment of the servitude of drainage, imposed by statute on a lower es- tate for the benefit of the estate above, be presumed in the ab- sence of clear proof.^ Eailure to use water is evidence of an intention to abandon the right, and, if continued for an un- reasonable period, creates a presumption of such intention ; but this presumption is not conclusive, and may be overcome by other suifieient proof.* The burden is upon one asserting the abandonment of a water right, to prove such fact by a preponderance of evidence.* 1 Partridge v. McKinney, 10 Cal. 181. Abb. Facts — 2. 18 BEIEF ON IfACTS. 2 Foley V. Codchaux, 48 La. Ann. 466, 19 So. 247. 3 Seaboard Air Line R. Co. v. Sikes, 4 Ga. App. 7, 60 S. E. 868; Sieber v. Frink, 7 Colo. 148, 2 Pae. 901. 4 Hall V. Lincoln, 10 Colo. App. 260, 50 Pac. 1047. b. Right of ftowage. — A right of flowage is not lost by mere nonuser, short of the time necessary to have it destroyed by pre- scription.^ But a granted right to flow land may be lost by nonuser for the prescriptive period, during which the grantor is making adverse use of the property.^ The intent of a party in doing or omitting to do certain acts is admissible in evidence upon the question of his abandonment of the right of flowage.* iViekery v. Providence, 17 K. I. 651, 24 Atl. 148; 2 Farnham, Waters, p. 1798. 2 Ruttans v. Winans, 5 U. C. C. P. 379. SButterfield v. Reed, 160 Mass. 361, 35 N. E. 1128. c. Irrigation rights; ditches; prior appropriation. — The right to use water from a stream for the purpose of irrigation being a natural right of a riparian owner, it is not lost by mere nonuser. He may make use of his right or not, as he chooses, and he loses none of his rights thereby.' The use of a ditch being necessary in most cases to make water available for irriga- tion, the question as to abandonment has arisen more often with respect to the ditch than to the water right. The right to main- tain the ditch may be lost by abandonment or nonuser. In most of the cases affecting ditches for irrigation purposes, they were constructed over public lands when there was no right upon the part of anyone to interfere with them, and they were not maintained long enough to perfect the right by prescription, so that the title of the ditch owner rested merely on the statute- giving governmental permission to use government land for a right of way. When, therefore, the land went into possession of a grantee from the government, very little was necessary to show that the statutory right had been abandoned.^ So long, how- ever, as the title to the property remains in the government, a mere nonuser of the ditch does not amount to a forefeiture of the right to maintain it.* The facts that a quartz mill and min- ing claim have not been operated for years, and that the mill ABANDONMENT. 19 has gone to decay, so that it cannot be operated, may be received to show an abandonment of the easement in the land for a flume, or such nonuser as would preclude the inference that prescrip- tive title ever ripened into existence, where it appears that such flume was appurtenant to such mill and claim.* But if the use of the ditch is stopped under an agreement, the nonuser will not result in an abandonment so long as the agreement continues in force. ^ So, nonuser of a ditch, brought about by circum- stances over which the ditch owner has no control, is not evi- dence of abandonment of, or intent to abandon, such ditch.^ The facts that but little water was used from a ditch, and that it became so obstructed that but little water would flow in it, do not establish an abandonment, where it appears that the ditch was used continuously to convey water for domestic pur- poses, and to some extent for irrigation, and that the intention of the owner to retain the right was made manifest to the one claiming the abandonment.' The same rights which attach to water flowing in a stream apply to that flowing in a ditch after it has been constructed; and therefore a perpetual right to the use of water from an irrigation ditch, acquired or reserved under a contract, constitutes an easement in the ditch, which cannot be lost by nonuser alone, short of the period of limi- tations for actions to recover real property.' So, a right to the use of water from an irrigation ditch is not abandonment by a failure of the grantee of the land upon which the same was used to obtain a tenant for two or three years, or a failure of his grantor for two or three years to contribute towards the maintenance of the ditch.® 13 Farnham, Waters, p. 1911, § 607. 2 3 Farnham, Waters, p. 1912; Reeves v. Backus-Brooks Co. 83 Minn. 339, 86 N. W. 337. Thus a ditch constructed by running a furrow and cleaning it out with a shovel is held to bo abandoned if it is not used for many years, and if it becomes go obliterated as not to be perceptible by persons driving over or plowing the land across which it runs, while the owners permit another person to construct a ditch and take water from the stream without notifying him of the prior appropriation. Dorr v. Hammond, 7 Colo. 79, 1 Pae. 693. So, if the end of a ditch is filled up by a landside, and not opened or used 20 BEIEF OliT FACTS. again for nine or ten years, there will be an abandonment of the right under the Oregon statute, providing that, if a ditch is abandoned, and thereafter for one year the claimant shall cease to exercise acts of ownership over the same, he shall be deemed to have lost all claim thereto. Ison v. Nelson Min. Co. 47 Fed. 199. 3 Welch V. Garrett, 5 Idaho, 639, 51 Pafi. 405, 19 Mor. Min. Rep. 193; Ada County Farmers' Irrig. Co. v. Farmers' Canal Co. 5 Idaho, 793, 40 L.K.A. 485, 51 Pac. 990. 4 Richard v. Hupp, — Cal. — , 37 Pac. 920. sstuffleheem v. Adelsbach, 135 Cal. 221, 67 Pac. 140. 8 Welch V. Garrett, 5 Idaho, 639, 51 Pac. 405, 19 Mor. Min. Rep. 193. TUtt V. Frey, 106 Cal. 392, 39 Pac. 807. 8 People ex rel. Standart v. Farmers High Line Canal & Reservoir Co. 25 Colo. 202, 54 Pac. 626, reversing 8 Coio. App. 246, 45 Pac. 543. 9 Putnam v. Curtis, 7 Colo. App. 437, 43 Pac. 1056. In case of the prior appropriation of water, in order to evi- dence an abandoment, there must be an intent to abandon, either express or implied from the conduct of the appropriator. Whether an act will constitute an abandonment will depend upon the intention with which it is done.* To work an aban- donment there must be a relinquishment of water, as well as the intention of abandonment.^ The fact is to be determined by consideration of both act and intent.* Mere nonuser of the water is not, of itself, sufficient to work an abandonment.* But it has been held that a failure to use water is evidence of an intention to abandon, and, if continued for an unreasonable period, it creates a presumption of an intention to abandon. This presumption, however, is not conclusive, but may be over- come by other sufficient proof.^ JSTor will an attempted change in the ditch or in the manner of use effect an abandonment.® But the right will be abandoned by asserting inconsistent rights.' The fact that after the purpose for which the water is appro- priated has been accomplished, the appropriators have dispersed, and the water has been allowed to go to waste for a long time, after which it is sold for a nominal price, may be deemed evi- dence of abandonment.' But the obstruction and disuse for fifteen years of a part of a ditch do not show an abandonment by a prior appropriator of his rights therein.® 1 Putnam v. Curtis, 7 Colo. App. 437, 43 Pac. 1056. No abandonment of a water right appurtenant to land, by a former owner ABANDONMENT. 21 thereof, is shown where there was no attempt made by him to relin- quish any appropriation so appurtenant while in possession, nor any intention on his part to abandon the same, without which there can be no abandonment, although he subsequently declared that he did not buy or claim any water right and did not sell any; such intention cannot be inferred from the fact that the land was not cropped or irri- gated by him, where he never had occasion to do so. Turner v. Cole, 31 Or. 154, 49 Pac. 971. But abandonment of the right to divert the waters of a stream may be inferred from acts, or failures to act, so inconsistent with an inten- tion to retain it that the unprejudiced mind is convinced of the re- nunciation. North America Exploration Co. v. Adams, 45 C. C. A. 185, 104 Fed. 404, 21 Mor. Min. Eep. 65. 8 Nichols V. Lantz, 9 Colo. App. 1, 47 Pac. 70. SGassert v. Noyes, 18 Mont. 216, 44 Pac. 959; Integral Quicksilver Min. Co. V. Altoona Quicksilver Min. Co. 21 C. C. A. 409, 44 U. S. App. 566, 75 Fed. 379; Smith v. Green, 109 Cal. 228, 41 Pac. 1022. * Cache La Pudre Irrig. Co. v. Larimer & W. Reservoir Co. 25 Colo. 144, 71 Am. St. Rep. 123, 53 Pac. 318; Turner v. Cole, .31 Or. 154, 49 Pac. 971; Dodge v. Marden, 7 Or. 456, 1 Mor. Min. Eep. 63; Haugh V. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728; Partridge v. MoKinney, 10 Cal. 181, 1 Mor. Min. Rep. 185. Mere nonuser of water for the operation of a mill, even for a period longer than the statute of limitations, does not constitute an aban- donment thereof, where the reason of the nonuser was the closing of the mill during that period, and the evidence clearly shows that there was no intention to abandon the mill. Smith v. Hope Min. Co. 18 Mont. 432, 45 Pac. 632. Failure to use the water for the purpose for which it was appropriated will not constitute an abandonment if, during the years in which it was not used, there was not a sufficient quantity to supply the requisite amount for that purpose. McCauley v. McKeig, 8 Mont. .389, 21 Pac, 22, 16 Mor. Min. Eep. 1. BSieber v. Frink, 7 Colo. 148, 2 Pae. 901. 6 Kleinschmidt v. Greiser, 14 Mont. 484, 43 Am. St. Eep. 652, 37 Pac. 5. An appropriation of water which is carried from one stream to another to make up the amount which has been attempted to be appropriated from the latter is not abandoned by the mere nonuser of the ditch through which it was taken, where there was no intention to abandon, and the further use of the ditch had become unnecessary because of the transfer of the water from one stream to another by a junior appropriator further, up the stream. Hector Min. Co. v. Valley View Min. Co. 28 Colo. 315, 64 Pac. 205. 'Hewitt V. Story, 30 L.E,A. 265, 12 C C. A. 250, 29 U. S. App. 155, 64 22 BRIEF ON FACTS. Fed. 510; Oppenlander v. Left Hand Ditch Co. 18 Colo. 142, 31 Pac. 834. 8 Davis V. Gale, 32 Cal. 26, 91 Am. Dec. 554, 4 Mor. Min. Rep. 604. 9 Wimer v. Simmons, 27 Or. 1, 50 Am. St. Rep. 685, 39 Pac. 6. For a further treatment of the question of abandonment or- loss of rights of prior appropriators of water, see note in 30 I1.R.A. 265, and also 3 Farnham, Waters, § 691, p. 2126. 18. Mills. ISTonuser of a mill for less than twenty years is not alone suffi- cient evidence of the abandonment of a right to flow the land of another/ but entire and continued disuse of a mill privilege for twenty years is strong prima facie evidence of ceasing to use the privilege for an unreasonable time, by which it is lost, and, unless rebutted by explanatory circumstances, must be deemed conclusive.* 1 Williams v. Nelson, 23 Pick. 141, 34 Am. Dec. 45. 2 French v. Braintree Mfg. Co. 23 Pick. 216. The right to maintain a dam and flow the land of another is not aban- doned by nonuser for less than twenty years. Carlisle v. Cooper, 19 N. J. Eq. 256. Nonuser for twenty years of the right to maintain a dam acquired by use is presumptive evidence of abandonment, but such presumption may be rebutted by proof. Farrar v. Cooper, 34 Me. 394. The sale of a mill privilege for its value, or an offer to sell, will not be re- garded as an abandonment. Pillsbury v. Moore, 44 Me. 154, 69 Am. Dec. 91. Nonuser of water by a milling company for nine years is not an aban- donment, where its intention not to abandon the mill is manifested by leaving the premises in care of a watchman. Smith v. Hope Min. Co. 18 Mont. 432, 45 Pac. 632. IV. Homestead. 19. Burden of proof. The burden is on him who seeks to subject homestead prop- erty to the payment of his claim, to show that it has been aban- doned,^ but one who claims a homestead in land which he has ceased to occupy has the burden, as against intervening claim- ants, to prove an intention on his part to return and reoccupy it.'' ABANDONMENT. 23 1 Robinson v. Charleton, 104 Iowa, 296, 73 N. W. 616; Bradshaw v. Hurst, 57 Iowa, 745, 11 N. W. 672; Harle v. Eichards, 78 Tex. 80, 14 S. W. 257; Hayes v. Cavil, — Tex. Civ. App. — , 31 S. W. 313; Union Stock Yards Nat. Banii v. Smout, 62 Neb. 227, 87 N. W. 14. 8 Newman v. Franklin, 69 Iowa, 244, 28 N. W. 579 ; Bell v. Greathouse, 20 Tex. Civ. App. 478, 49 S. W. 258. 20. Presumptions. A homestead will be presumed to continue until its use is discontinued with an intention not to use it again as a home. The presumption of abandonment of a homestead conveyed by the husband, without the wife's knowledge, after they left it, is not overcome by her evidence that she never intended to abandon it, when such intention was not known to the grantee, and no attempt to retain the homestead was made for many jears after the husband's death.* IH. P. Drought & Co. v. Stallworth, 45 Tex. Civ. App. 159, 100 S. W. 188. ■2 Portwood V. Newberry, 79 Tex. 337, 15 S. W. 270. 21. Opinions. Evidence of witnesses that it was the intention of the home- stead claimant and his family to return and again occupy the homestead is the expression of an opinion, and inadmissible.* •1 Graves v. Campbell, 74 Tex. 576, 12 S. W. 238. '22. Hearsay. Evidence that it was generally understood in the community that a person resided there is inadmissible to show his aban- donment of a homestead in another place.' 1 Scottish- American Mortg. Co. v. Scripture, — Tex. Civ. App. — , 40 S. W. 210 23. Declarations. An intention to abandon a homestead may be shown by the -declarations and acts of the homesteader.' a Moses v. White, 6 Kan. App. 558, 51 Pao. 622; Mills v. Mills, 141 Mo. 24 BEIEF ON FACTS. 195, 42 S. W. 709; McMillan v. Warner, 38 Tex. 410; Cincinnati Leaf Tobacco Warehouse Co. v. Thompson, 105 Ky. 627, 49 S. W. 446; Robinson v. Charleton, 104 Iowa, 296,. 73 N. W. 616 (talk of ex- changing the homestead property, or a statement of its value, does not show an intent to abandon) ; Painter v. Steflfen, 87 Iowa, 171, 54 N. W. 229 (that a homesteader, before removal, took legal advice con- cerning the effect of his absence, is admissible as res gestae ) . Declarations of intent to return to the homestead cannot outweigh evi- dence of abandonment afforded by acts. Keece v. Eenfro, 68 Tex. 192, 4 S. W. 545. A statement by the owner of a homestead that he would have to abandon it unless he could procure pecuniary assistance to erect a new building in place of that destroyed by fire does not show an abandonment. Stewart v. Ehoades, 39 Minn. 193, 39 N. W. 141. 24. Mode of proof. To establish the abandonment of a homestead the evidence must show a removal with the intention of not returning, or the formation of such an intention after the removal.^ In- tention to abandon may be shown by circumstances and the existing facts,^ or by the party to whom it is attributed.^ 1 Corey v. Schuster, 44 Neb. 269, 62 N. W. 470; Edwards v. Reid, 39 Neb. 645, 42 Am. St. Rep. 607, 58 N. W. 202; Mallard v. First Nat. Bank, 40 Neb. 784, 59 N. W. 511. Nonoccupancy : 2 Nonoccupancy not conclusive. Sanders v. Sheran, 66 Tex. 655, 2 S. W. 804; McMillan v. Warner, 38 Tex. 410; Loveless v. Thomas, 152 111. 479; 38 N. E. 907; Hitchcock v. Misner, 111 Mich. 180, 69 N. W. 226. Removal to engage in business without definite intent to return shows an abandonment. Wolf v. Hawkins, 60 Ark. 262, 29 S. W. 892. Acquisition of a new homestead, and a direction to the sheriff to levy upon the old, establish an abandonment, although the homesteader testifies he did not intend to abandon. Wilson v. Daniels, 79 Iowa, 132, 44 N. W. 246. A widow abandons her homestead right by removal and division of the land between her children (Crabb v. Potter, 12 Ky. L. Rep. 430, 14 S. W. 501) ; but not by temporary removal upon remarriage (Loveless V. Thomas, 152 111. 479, 38 N. E. 907). Removal by a married woman constitutes an abandonment, although she refuses to join in a conveyance of the homestead, when she does not intend to return without her husband, who has determined not to re- turn. Nash V. Herring, 5 Tex. Civ. App. 95, 23 S. W. 739. Whether the cessation of the homestead use is temporary or not may be ABAKDONMEHT. 25 shown by the acta of the husband alone. Wynne v. Hudson, 66 Tex. 1, 17 S. W. 110. One who voluntarily absents himself from his homestead for fifteen years, receiving no benefit therefrom during that time, is deemed to have abandoned it and to have lost his rights therein. Martin v. Smith, 31 Ky. L. Rep. 882, 104 S. W. 310. Lease : Lease does not constitute abandonment in the absence of such intention. Zwick V. Johns, 89 Iowa, 550, 56 N. W. 665; Shirack v. Shirack, 44 Kan. 653, 24 Pac. 1107. Lease of homestead for life is not conclusive evidence of abandonment where the lessor reserves the right to return, and intends to do so. Gates V. Steele, 48 Ark. 539, 4 S. W. 53. Abandonment will not be conclusively inferred from the removal of the family to a store house and the temporary renting of the residence. Harle v. Richards, 78 Tex. 80, 14 S. W. 257. Length of time a homestead is rented and the character of the improve- ments upon it may be considered in determining the intention as to abandonment. Charles v. Chaney, — Tex. Civ. App. — , 26 S. W. 169. Sale: Ofi'er to sell homestead does not show intent to abandon. Dunn v. Tozer, 10 Cal. 167; Aultman v. Allen, 12 Tex. Civ. App. 227, 33 S. W. 679. But a contract to sell, with the purpose of investing the proceeds in other land not to be held as a homestead, tends to show an intention to aban- don. Sanders v. Sherman, 66 Tex. 655, 2 S. W. 804. Conveyance : Conveyance of homestead by warranty deed after removal is conclusive evi- dence of abandonment. Portwood v. Newberry, 79 Tex. 337, 15 S. W. 270. Voting : Voting in another place after removal is not conclusive evidence of aban- donment of homestead. Corey v. Schuster, 44 Neb. 269, 62 N. W. 470 ; Robinson v. Charleton, 104 Iowa, 296, 73 N. W. 616; Imhoff v. Lipe, 162 111. 282, 44 N. E. 493; Campbell v. Potter, 16 Ky. L. Rep. 535, 20 S. W. 139; Cobb v. Smith, 88 111. 199; Cincinnati Leaf Tobacco Ware- house Co. V. Thompson, 105 Ky. 627, 49 S. W. 446; Moline v. Plow Co. V. Vanderhoof, 36 111. App. 26. Nor is registration for the purpose of voting in another state conclusive, • — especially when not personally made. Mallard v. First Nat. Bank, 40 Neb. 784, 59 N. W. 511. Removal to more valuable property, at which place the husband voted, and subsequent removal still farther away, show abandonment. Kutch v. Holley, 77 Tex. 220, 14 S. W. 32. Generally : The acquisition of a new homestead is not absolutely essential to the 26 BBIEF ON FACTS. abandonment of the old one. Moore v. Johnson, 12 Tex. Civ. App. 694, 34 S. W. 771. Abandonment of a portion of a homestead is not shown by recitals in a mortgage upon it, which limit its extent, or by an unrecorded plat dividing the property. Giersa v. Gray, — Tex. Civ. App. — , 31 S. W. 231. Evidence of bad health at a time subsequent to the removal from the home- stead is inadmissible on the question of abandonment, when there is nothing to show that the removal was due to ill health. Scottish- American Mortg. Co. V. Scripture, — Tex. Civ. App. — , 40 S. W. 210. For other cases on question of what constitutes an abandonment of a home- stead, see note in 56 L.R.A. 882. See also note in 3 L.R.A. (N.S.) 515 (Withers v. Love, 72 Kan. 140, 83 Pac. 204), on the effect of confinement in an insane asylum or a prison, in determining the question of abandonment of the homestead. Another note on this subject, in 13 L.R.A. (N.S.) 430 (Washington V. Smith, 77 Neb. 363, 109 N. W. 381), considers the abandonment, conveyance, or encumbrance of homestead during the iasanity of one of the spouses. 3 Glasscock v. Stringer, — Tex. Civ. App. — , 32 S. W. 920. V. Husband and Wife. 25. Declarations. The declarations of a wife, made immediately before her flight, manifesting her feelings, such as satisfaction,^ or dis- tress,* or made immediately afterward to the persons with whom she took refuge,' or to a third person,* are admissible as part of the res gestcB,^ on the question of abandonment. So is evidence of her physical condition. The same principle applies to all persons. Declarations by the wife after abandonment are inadmissi- ble to prove her nonconsent to her husband's absence,^ and to disprove wilful desertion by the husband.'' The husband's declarations are inadmissible, in an action by the wife for the alienation of his affections, to show that his abandonment of her was due to the interference of the de- fendant.* 1 Jacobs V. Whitcomb, 10 Cush. 255 (opinion by Bigelow, Ch. J., in as- sumpit against a husband for alleged necessaries). ^McGowen v. McGowen, 52 Tex. 657 (divorce for abandonment). ABAISTDONMENT. 27 sCattison v. Cattison, 22 Pa. 275 (divorce for desertion) ; s. P., McGoweii .'. McGowen, 52 Tex. 657. *Hoare v. Allen, 3 Esp. 276 (Ld. Kenyon, crim. con., declarations as to cause of leaving) . 5 Park V. Hopkins, 2 Bail. L. 408. Conversation between the husband and wife in his house, three days after she first left him, is admissible as part of the res gestw. Remsen v. Hay, 14 N. Y. Week. Dig. 443. See also Absence; Desertion; Intent; Sepakation. «Bealor v. Hahn (Pa.) 9 Cent. Rep. 599, 11 Atl. 776. 7 Hart V. McGrew, Sadler (Pa.) 505, 11 Atl. 617. « Buchanan v. Foster, 23 App. Div. 542, 48 N. Y. Supp. 732. 26. Presumptions. The law presumes that a man did not intend to abandon Ms family, in the absence of cogent proof to the contrary.^ 1 Jennison v. Hapgood, 10 Pick. 99 ; Greene v. Greene, 11 Pick. 410. 27. Relevancy, sufSciency, and weight of evidence. Upon the trial of a man for abandoning his minor children, evidence that he separated from his wife for her misconduct is inadmissible.* And in a prosecution against a husband for abandoning his wife, evidence that before the alleged aban- donment he had made a trip, taking another woman, is incom- petent.* To show circumstances authorizing a wife to sue alone for damages to the common property, she may testify that her hus- band has abandoned her, although by statute a wife is pre- cluded from testifying to facts relied upon as grounds for di- vorce.' But evidence that a married woman and her brother- in-law stated that her husband had abandoned her is inadmis- sible to prove a state of facts empowering her to convey land as if unmarried.* A wife claiming that her abandonment of her home was caused by the conduct of her husband must, upon his denial, in an action for divorce for desertion, sustain her claim by the corroborative evidence of circumstances, or other witnesses.* Failure to support the wife will not justify the husband's ■conviction of abandonment, when she left his house and stripped it of furniture, with no excuse except that he failed to pay his bills.* 28 BEIEP ON FACTS. But prosecution for abandonment of a wife by ber husband is sustained by evidence that be turned ber out of bis bouse and wholly neglected to support her." Mere declarations of a willingness to resume marital re- lations, without effort to put an end to a separation, are of slight weight.* 1 Bennefield v. State, 80 Ga. 107, 4 S. E. 869. 2 Jones V. People, 119 111. App. 49. 3 Houston & T. C. R. Co. v. Lackey, 12 Tex. Civ. App. 229, 33 S. W. 768. 4 Blum V. Goff, — Tex. Civ. App. — , 29 S. W. 1110. SHerold v. Herold, 47 N. J. Eq. 210, 9 L.R.A. 696, 20 Atl. 375. 6 State V. Brinkman, 40 Mo. App. 284. 7 People ex rel. Shrady v. Shrady, 47 Mise. 333, 95 N. Y. Supp. 991. 8 Broom v. Broom, 47 N. J. Eq. 215, 20 Atl. 377; Elliott v. Elliott, 48 N. J. Eq. 231, 21 Atl. 381. VI. Insurance. 28. Presumptions. The presumption is against an intent by the insured to aban- don a live policy. '^ But the agent who insures for the owner is presumed to have authority to abandon.^ 1 Manhattan L. Ins. Co. v. Wright, 61 C. C. A. 138, 126 Fed. 82. 2 Chesapeake Ins. Co. v Stark, 6 Cranch, 268, 3 L. ed. 220; Merchants' Marine Ins. Co. v. Barss, 15 Can. S. C. 185. 29. Declarations. Evidence of a deceased member's declaration of his discon- nection from a benefit society is admissible on the question of an abandonment of the certificate.* 1 Stewart v. Supreme Council, A. L. H. 36 Mo. App. 319. 30. Proof of right to abandon. The right to abandon a vessel is to be determined from the facts as they existed on the day of abandonment.* 1 Orient Mut. Ins. Co. v. Adams, 123 U. S. 67, 31 L. ed. 63, 8 Sup. Ct. Kep. 68; Bradlie v. Maryland Ins. Co. 12 Pet. 378, 9 L. ed. 1123; Dickey ABANDOH'MEITT. 29 V. New York Ins. Co. 4 Cow. 222 ; Snow v. Union Mut. Marine Ins. Co. 119 Mass. 592, 20 Am. Eep. 349. One who refused to pay an increased assessment, but without alleging its illegality, and who notified the company of his withdrawal, is deemed to have abandoned the contract. Roth v. Mutual Reserve Ins. Co. 162 F. 282, 89 C. C. A. 262. A default in the payment of premiums, and refusal to continue premiums or assessments, with knowledge of the circumstances, are deemed con- clusive on the question of abandonment by the insured. Mutual L. Ins. Co. V. Hill, 178 U. S. 347, 44 L. ed. 1097, 20 Sup. Ct. Rep. 914; Price V. Mutual Reserve L. Ins. Co. 102 Md. 683, 4 L.R.A.(N.S.) 870, 62 Atl. 1040. "VII. Patents and Tkademaeks. 31. Presumptions. Abandonment cannot be presumed from the use and sale of an invention witbin two years before application for a patent, unless accompanied by acts or declarations ■which clearly evi- dence an intention to dedicate the improvement to the public* ISTor will abandonment be presumed from sale or use between the application for, and grant of, a patent.^ Nor can the acquiescence of an inventor in the public use of his invention be presumed where he has no knowledge of it; but such knowl- edge may be presumed from circumstances.* But an inventor who describes and claims only a part of his invention in his application for a patent is presumed to have abandoned the residue to the public* A trademark is not deemed abandoned because the owner con- sents to the joint use thereof by his father and himself. ° 1 Mast, F. & Co. V. Dempster Mill Mfg. Co. 27 C. C. A. 191, 49 U. S. App. 508, 82 Fed 327; McCormick v Seymour, 2 Blatchf. 240, Fed. Cas. No. 8,726. 2 Ryan v. Goodwin, 3 Sumn. 514, Fed. Cas. No. 12,186. 3 Woodbury Patent Planing-Mach. Co. v. Keith, 101 U. S. 479, 25 L. ed. 939; Wyeth v. Stone, 1 Story, 273, Fed. Cas. No. 18,107; Shaw v. Cooper, 7 Pet. 292, 8 L. ed. 689; American Hide & Leather Splitting & Dressing Mach. Co. v. American Tool & Mach. Co. 4 Fish. Pat. Cas. 284, Fed. Cas. No. 302 (abandonment is never presumed, but must be proved). *Deering v. Winona Harvester Works, 155 U. S. 286, 39 L. ed. 153, 15 Sup. Ct. Rep. 118. 30 BEIEF OIT FACTS. An omission of grounds due to a misapprehension of the objections of the commissioner, does not show an abandonment when application for a reissue was made within a reasonable time. Hutchinson v. Everett, 33 Fed. Rep. 502. An invention cannot be presumed abandoned within the two years allowed for putting it into public use; an alleged abandonment must be proved. Eplfe v. Hoffman, 26 App. D. C. 336. A patentee is presumed to have abandoned specifications not distinctly claimed as an invention. Ide v. Torlieht, D. & K. Carpet Co. 53 C. C. A. 341, 115 Fed. 137. fi Giles Remedy Co. v. Giles, 26 App. D. C. 375. 32. Burden of proof. The issue of letters patent is prima facie evidence that there has been no voluntary abandonment of an invention,^ and the burden of proof is on one who claims abandonment.'' 1 Johnsen v. Fassman, 5 Fish. Pat. Cas. 471, Fed. Cas. No. 7,365. z American Hide & Leather Splitting & Dressing Mach. Co. v. American Tool & Mach. Co. 4 Fish. Pat. Cas. 284, Fed. Cas. No. 302; Kelle^g Switchboard & Supply Co. v. International Teleph. Mfg. Co. 158 Fed. 104; Victor Talking Mach. Co. v. American Graphophone Co. 140 Fed. 860, aifirmed in 76 C. C. A. 180, 145 Fed. 350. 33. Declarations. Abandonment of an invention may be proved, either by express declarations of an intention to abandon, or by conduct inconsistent with any other conclusion.* 1 United States Rifle & Cartridge Co. v. Whitney Arms Co. 118 V. S. 22, 30 L. ed. 53, 6 Sup. Ct. Rep. 950. Declarations of an intention to dedicate an invention to the public will not be regarded as equivalent to an actual dedication. Pitts v. Hall, 2 Blatohf. 229, Fed. Cas. No. 11,192. 34. Delay. An abandonment may be shown by negligent postponement of the inventor's claims.' But delay in presenting an invention for patent does not necessarily show an abandonment.* 1 Woodbury Patent Planing Mach. Co. v. Keith, 101 U. S. 479, 25 L. ed. ABANDONMENT. 31 Delay in applying for a patent for a. year or two during the perfection and patenting of a device regarded as a better one is insufficient to show an abandonment. Esty v. Newton, 14 App. D. C. 50. But a delay of nine years will be regarded as an abandonment where the only excuse given is that the time did not seem propitious for making profit out of the invention. Marvel v. Decker, 13 App. D. C. 562. Testimony of an inventor that he did not intend to abandon his invention is of little weight as against delay and his undisputed acts. Bevin V. East Hampton Bell Co. 5 Fish. Pat. Gas. 23, Fed Gas. No. 1,379. 2Eok V. Kutz, 132 Fed. 758; Kellogg Switchboard & Supply Go. v. Inter- national Teleph. Mfg. Co. 158 Fed. 104, affirmed in 96 G. G. A. 395, 171 Fed. 651; Appert v. Brownsville Plate Glass Go. 144 Fed. 115. VIII. Eights Geneeallt. 35. Burden of proof. A party who relies upon an abandonment to establish a right in himself must prove it.* 1 Oreamuno v. Uncle Sam Gold & Silver Min. Co. 1 Nev. 215 ; White v. Holliday, 11 Tex. 606. 36. Presumptions. The gratuitous abandonment of an acquired right,^ or any fact that works a forfeiture of an estate, will not be presumed.* I Thus, abandonment of title is not presumed from failure to I pay taxes.^ But intent to abandon personal property may be inferred from the conduct of the owners and the situation of the prop- erty.* Abandonment of realty will be presumed where the posses- sor leaves upon the property no indication of his intention to return and resume occupancy.^ But it is sufficient to rebut the presumption of abandonment arising from cessation of oc- cupancy, that the occupant left an agent in charge of the prem- ises.® 1 Green v. Fonbene, 2 La. Ann. 957. 2 State V. Atkinson, 24 Vt. 448. SKreamer v.Voneida, 24 Pa. Super. Ct. 347. But see Timber v. Desparois, 18 S. D. 687, 101 N. W. 879, where neglect 32 BEIEF ON FACTS, for more than twenty years to pay taxes was held sufficient, with other circumstances, to show an intention to abandon. 4 Log-Owner's Boom. Co. v. Hubbell, 135 Mich. 65, 4 L.R.A.(N.S.) 573, 97 N. W. 157, in which it is held that to prove abandonment both intention and actual relinquishment must be shown. This holding is in harmony with the other authorities (which are few), as shown by a review thereof in a note accompanying the report of the case in 4 L.R.A.(N.S.) 573. 6 Burke v. Hammond, 76 Pa. 172. SKeane v. Cannovan, 21 Cal. 291, 82 Am. Dec. 738. It will be presumed that the pledgeor has abandoned collateral security given to indemnify sureties, and allowed to remain with them for thirty years. Louchbaum's Estate, 7 Pa. Dist. E. 100. 37. Adverse possession. It will be presumed that one who abandons land which he has been holding adversely held in subordination to the title of the true owner,'' but the burden of proving abandonment or interruption of adverse possession is upon the adverse party.^ 1 Eussell V. Slaton, 25 Ga. 193. 2 Wilson V. Spring, 38 Ark. 181. 38. Mining rights. A lessee of land for mining purposes, who fails for twenty- four years after the leases are made to take any steps for the operation and development of the property, must be deemed to have abandoned his rights.^ iWilmore Coal Co. v. Brown, 147 Fed. 931, affirmed in 82 C. C. A. 295, 153 Fed. 143. See also Mcintosh v. Robb, 4 Cal. App. 484, 88 Pac. 517, where a, mining lease was deemed abandoned after a delay of a year and a half to begin operations or to pay instalments of rent required by the lease. 39. Pleading. Proof of abandonment is admissible without special plea under denial of title,^ or where the strict legal title is not in- volved and the plaintiff relies upon a right founded on posses- sion,* or where, in ejectment to recover a mining claim, the ABANDONMENT. 33 defendant pleads and relies on a location prior to that of the plaintiff.^ 1 Bell V. Red Rock Tunnel & Min. Co. 36 Cal. 214. sWillson V. Cleaveland, 30 Cal. 192. STrevaskis v. Peard, 111 Cal. 599, 44 Pao. 246, 18 Mor. Min. Rep. 353. 40. Proof of intent. An intention to abandon is necessary to effect an abandon- ment of real property.^ Acts explanatory of the leaving, which tend to show that it was not accompanied with the intention not to return, may be shown in rebuttal.^ 1 Smith V. Gushing, 41 Cal. 97; Log-Owners' Boom. Co. v. Hubbell, 135 Mich. 65, 4 L.R.A.(N.S.) 573, 97 N. W. 157, and cases in note in 4 L.R.A.(N.S.) 573. Such intention is not shown by neglect to sue to recover possession. Cleveland v. Cleveland, C. C. & St. L. R. Co. 93 Fed. 113. Or by payment of taxes on the property by another. Keane v. Cannovan, 21 Cal. 291, 82 Am. Dec. 738; Davis v. Perley, 30 Cal. 630; Philadel- phia V. Riddle, 25 Pa. 259. Or by leaving the premises vacant and unimproved. Judson v. Malloy, 40 Cal. 299. Or by removal of a fence with intent to erect a better one. Sweetland v. Hill, 9 Cal. 556. Or by removal from premises improved under promise of a gift of them. Allbright v. Hannah, 103 Iowa, 98, 72 N. W. 421. Failure to use and occupy a school building is competent, but not conclu- sive, evidence of a design to abandon. Rowe v. Minneapolis, 49 Minn. 148, 51 N. W. 907. That a, person graded the street in front of property upon notification as oM'ner is pertinent and material in rebuttal of a claim of abandon- ment. Bliss V. Ellsworth, 36 Cal. 310. An intention to abandon is not conclusively disproved by the statement of the owner (Myers v. Spooner, 55 Cal. 260) ; nor is the general belief as to whether mining property has been abandoned admissible (Phenix Mill. & Min. Co. v. Lawrence, 55 Cal. 143) ; nor the belief of the per- son taking possession after the supposed abandonment. Stone v. Gey- ser Quicksilver Min. Co. 52 Cal. 315. 2 Boll V. Bed Rock Tunnel & Min. Co. 36 Cal. 214. Abb. Facts — 3. 34 BEIEF ON FACTS. :a.bbreviations. 1. Judicial notice. 2. Parol evidence. a. In general; general usage. b. Usage of writer. 3. Pleading — variance. 4. Question to witness. 1. Judicial notice. The court may/ but is not bound to/ take judicial notice of the meaning, according to general usage, of abbreviations in common use. 1 Power V. Bowdle, 3 N. D. 107, 21 L.E..A. 328, 44 Am. St. Rep. 511, 54 N. W. 404; State v. Senn, 32 S. C. 392, 11 S. E. 292; Fenton v. Perkins, 3 Mo. 106; Birmingham & A. R. Co. v. Maddox & Adams, 155 Ala. 292, 46 So. 780. Christian names: Brown v. Piper, 91 U. S. 37, 42, 23 L. ed. 200, 201 {dictum that the court will notice the customary abbreviations of Christian names) ; Good- ell v. Hall, 112 Ga. 435, 37 S. E. 725. ■Stephen v. State, 11 Ga. 225 (as to meaning of "Jas."). Buell V. State, 72 Ind. 523 (that "Jerry" means "Jeremiah"). Sparks v. Sparks, 51 Kan. 195, 32 Pac. 892 (that "Dan" means "Daniel"). Alsup V. State, 36 Tex. Grim. Rep. 535, 38 S. W. 174 (that "Bob" means "Robert"). Contra : Owens V. State, — Tex. Grim. Rep. — , 20 S. W. 558 (courts cannot take judicial notice of contractions in names, as, that "Lettie" is a con- traction for "Letitia"). Dates and figures: May take judicial notice of the meaning of "Dec. 22, '88." Perdue v. Fra- ley, 92 Ga. 780, 19 S. E. 40. Also of the letters "A. D." State v. Hodgeden, 3 Vt. 481; Com. v. Clark, 4 Cush. 596. Also of "Sec. 23, 28, 14." McChesney v. Chicago, 173 III. 75, 50 N. E. 191. But not of the meaning of printer's marks: "Oct 3, 4t." Johnson v. Robertson, 31 Md. 476. Initials: The abbreviation "M. C. R. R." is the recognized name of the Michigan Central Railroad. Ripley v. Case, 78 Mich. 126, 18 Am. St. Rep. 428, 43 N. W. 1097. But judicial notice cannot be taken of the meaning of ABBREVIATIONS. 35 the letters "C. B. & Q. R. R. Co." Accola v. Chicago, B. & Q. E. Co. 70 Iowa, 185, 30 N. W. 503. Judicial notice will be taken of the meaning of the letters "C. O. D." State V. Intoxicating Liquors, 73 Me. 278; United States Exp. Co. v. Keefer, 59 Ind. 263, Approved in Wasson v. First Nat. Bank, 107 Ind. 206, 8 N. E. 97. Contra : MeNichol v. Pacific Exp. Co. 12 Mo. App. 401. Compare also CoUender v. Dinsmore, 55 N. Y. 200, 205, 14 Am. Rep. 124, where it is intimated that evidence as to "C. 0. D." would be neces- sary; but undoubtedly all courts would not take notice of that term. The court judicially knows that the abbreviation "f. o. b." means "free on board" (Capehart v. Furman Farm Improv. Co. 103 Ala. 671, 49 Am. St. Rep. 60, 16 So. 627 ) ; but not that "D. C." means "Dimmit Co." Vivian v. State, 16 Tex. App. 262. The letters "N. P." after a, signature clearly indicate the oflBce of notary public. Rowley v. Berrian, 12 111. 200. In Alabama the letters "N. P." are not self-proving unless attested by a, notarial seal as required by statute. Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496, 54 Am. St. Rep. 114, 18 So. 175. The letters "J. P." following a signature, will be taken to mean "justice of the peace." Shattuck v. People, 5 111. 477; Russ v. Wingate, 30 Miss. 440; State v. Manley, 1 Overt. 428. But the letters "J. P. C. Co. Ga.'' must be explained. Miller v. Miller, 43 S. C. 306, 21 S. E. 254. The sign "&" is synonymous with the word "and." Brown v. State, 16 Tex. App. 245; Com. v. Clark, 4 Cush. 596; Malton v. State, 29 Tex. App. 527, 16 S. W. 423. The letters "Se.," following the word "acres," and preceeding figures, will be held to mean "section" where they appear in a devise. Chambers V. Watson, 60 Iowa, 339, 46 Am. Rep. 70, 14 N. W. 336. The letters "L. S.," following the name of a notary in an acknowledgment in an abstract of records, sufficiently indicate that an official seal was attached. Bucklen v. Hasterlik, 155 111. 423, 40 N. E. 561. In conveyances, etc. : Courts will take notice of well-understood abbreviations used in describ- ing land in conveyances, judicial sales, surveys, and assessments. Kile V. Yellowhead, 80 111. 208; Blakeley v. Bestor, 13 111. 708; Jordan Ditching & Draining Asso. v. Wagoner, 33 Ind. 50. The abbreviation "Miss." in a, trust deed, necessarily means "Mississippi." Wilkinson v. Webb, 75 Miss. 403, 23 So. 180. Abbremations generally: The court will take notice that "acet." stands for "account" (Heaton v. Ainley, 108 Iowa, 112, 78 N. W. 789) ; and that "Supt." stands for "superintendent." South Missouri Land Co. v. Jeffries, 40 Mo. App. 360. 36 BRIEF ON FACTS. Places : It cannot be judicially known that "Mo." stands for "Missouri" (Ellis v. Park, 8 Tex. 205) ; or that "La."' stands for "Louisiana." Russell V. Martin, 15 Tex. 238. Contra, as to "Ind." Burroughs v. Wilson, 59 Ind. 536. 2 On the danger of relying on the court's taking notice in a doubtful case beyond the knowledge of the judge, though the power exist, see note to Porter v. Waring, 2 Abb. N. C. 230. So, in Hulhert v. Carver, 37 Barb. 62, Ingraham, P. J., said: "We can easily guess what was intended by the letters 'Ills, cy.,' but that is not the mode which the law adopts to ascertain the meaning of doubtful terms. It was the duty of the party relying on these terms, as af- fecting the contract of deposit, to show by parol what v/as intended." 2. Parol evidence. a. In general; general usage. — The meaning of abbrevi- ations may be explained by parol evidence,^ and oral evidence of general usage is admissible for tbis purpose.^ 1 Hattieaburg Plumbing Co. v. Carmichael, 80 Miss. 66, 31 So. 536 ; Elam V. Western U. Teleg. Co. 113 Mo. App. 538, 88 S. W. 115 ; Grasmier v. Wolf, — Iowa, — , 90 N. W. 813. 2 Abb. Tr. Ev. 132, etc., 304, etc., 565. United States v. Hardyman, 13 Pet. 176, 10 L. ed. 113 (meaning of letter "M" in Treasury note "bearing interest at M. per centum"). Mercantile aibreviations : The settled rule is that where characters, marks, or technical terms are used in a particular business, unintelligible to persons unacquainted with such business, and occur in >• written instrument, their meaning may be explained by parol evidence, if the explanation is consistent with the terms of the contract. Allen, J., in Collender v. Dinamore, 55 N. Y. 200, 206, 14 Am. Rep. 224; Citing Dana v. Fiedler, 12 N. Y. 40, 62 Am. Dec. 130, the leading case; Salmon Falls Mfg. Co. v. Goddard, 14 How. 446, 14 L. ed. 493 ; Maurin v. Lyon, 69 Minn. 257, 65 Am. St. Rep. 568, 72 N. W. 72; Heideman v. Wolf stein, 12 Mo. App. 366. The principle extends to extended forms of expression, as well as to single words or characters. Dana v. Fiedler, 12 N. Y. 40, 62 Am. Dee. 130. The meaning of the letters "C. 0. D." may be proved by parol (American Exp. Co. V. Lesem, 39 111. 312) ; also the letters "f. o. b.." Sheffield Furnace Co. v. Hull Coal & Coke Co. 101 Ala. 446, 14 So. 672; Earl Fruit Co. v. McKinney, 65 Mo. App. 220. So with the letters "F. C." used in the wool trade. New England Dressed Meat & Wool Co. v. Standard Worsted Co. 165 Mass. 328, 52 Am. St. Rep. 516, 43 N. E. 112. ABEEEVIATIONS. 37 Also the meaning of "C. L. E.. P. oats," under Ga. Code, § 3801, permitting parol evidence to explain ambiguities. Wilson v. Coleman, 81 6a. 297, 6 S. E. 693. Parol evidence is admissible to show that "Boyo" meant "Bayous,'' a kind of bean, and that "per 100" meant "per one hundred pounds." Gard- iner V. McDonogh, 147 Cal. 313, 81 Pac. 964. , Parol evidence is admissible to shovf that in the dressed lumber trade "brae." means "brackets," that "X" means "by," that "mem." stands for "member," that "ply" signifies "thickness" (Jaqua v. Witham & A. Co. 106 Ind. 545, 7 N. E. 314 ) ; also to explain the meaning of "Class B. No. 1 good" (Jones v. Anderson, 82 Ala. 302, 2 So. 911). Barton v. Anderson, 104 Ind. 578, 4 N. E. 420 (abbreviations in a de- scription in a, tax deed). Converse v. Wead, 142 111. 132, 31 N. E. 314 (abbreviations in abstract of title). Jones V. State, 35 Tex. Crim. Eep. 565, 34 S. W. 631 (that "uph.," in a chattel mortgage, means "upholstered"). Davis V. Harnbell, — Tex. Civ. App. — , 24 S. W. 972. (It may be shown that the letters "J. P." and "C." stand for "justice of the peace" and "constable," where an execution sale is collaterally attacked.) The meaning of "R. L. D.," in the copy introduced in evidence of a record in the office of the collector of internal revenue, may be shown. State V. White, 70 Vt. 225, 39 Atl. 1085. But it cannot be shown that the letters "P. & D." in the docket entry of a justice of the peace mean "plaintiff" and "defendant." Hood v. School Dist N. 7, 1 Dougl. (Mich.) 502. Parol evidence was held admissible to show that the letters "Pt." after the name of the payee in a draft were intended to identify him as president of a bank. Griffin v. Erskine, 131 Iowa, 444, 109 N. W. 13, 9 A. & E. Ann. Cas. 1193. b. Usage of writer. — A usage peculiar to the parties may be proved to explain an abbreviation ;* but in case of transaction inter partes (as distinguished from a will,* etc.), the usage of the v^riter alone is not competent in his favor, vrithout evidence that the other party or person addressed was aware of the usage, or understood the term in the same sense. 1 See, for instance, Barry v. Coombe, 1 Pet. 640, 7 L. ed. 295 (the words "your half E. B. wharf and premises" in a, memorandum of a sale of land). SAbb. Tr. Ev. 132, 133. Jagua V. Witham & A. Co. 106 Ind. 545, 7 N. E. 314. (The intention of a party in making use of abbreviations cannot be shown.) 38 BRIEF our FACTS. 3. Pleading: — ^variance. The meaning of an abbreviation or otiier character, in a con- tract on which the action is directly founded, must be alleged in pleading, in order to let in oral evidence of its meaning.' 1 United States v. Hardyman, 13 Pet. 176, 179, 10 L. ed. 113 (criminal ease); American Exp. Co. v. Leaem, 39 111. 312, 333 (civil case). Variance : Evidence that the abbreviation "Nos." was used in an instrument, instead of "numbers," as alleged, is not a fatal variance. Shope v. State, 106 Ga. 226, 32 S. E. 140. Nor is it necessary variance that a note de- clared on as payable at the Farmer's & Mechanics' Bank is payable at the F. & Mechanics' Bank. Comstock v. Savage, 27 Conn. 184. And to establish the identity of a note it may be shown that "Mech's" therein means "Mechanics.' " Hite v. State, 9 Yerg. 357. 4. Question to witness. A witness of experience in the trade may be asked what is the meaning in that trade of technical phrases and abbreviations used in a document in evidence relating to a transaction in that trade.' 1 Storey v. Salomon, 6 Daly, 531, 540 ("settled at the market 72i," in- dorsed on stock straddle. The judgment was affirmed without ques- tioning this point, in 71 N. Y. 420). Sheldon v. Benham, 4 Hill, 129, 40 Am. Dec. 271 (meaning of memo- randum made by a bank teller since deceased ) . Lane v. Union Nat. Bank, 3 Ind. App. 299, 29 N. E. 613 (meaning of "Nat." in a note). State v. O'Connell, 82 Me. 30, 19 Atl. 86 (meaning of "R. L. D." in a record of special internal revenue taxes). Kotz V. Belz, 178 111. 434, 53 N. E. 367 (abbreviations in abstract books of original entry ) . Sufficiency of abbreviation to show official character of individual signing or attesting a document, see note to Summer v. Mitchell, 14 L.E.A. 815. ABILITY. 39 'ABILITY. 1. Judicial notice. 2. Presumptions. 3. Direct testimony. 4. Expert testimony. 5. Experiments in court. 6. Experiments out of court. 7. Witness's ability. 8. Conclusions. 9. Relevancy and materiality. See also Capacity; Disease; Feelings; Health; Intoxicatiow. As to financial ability, see Insolvency. 1. Judicial notice. It is a matter of common knowledge that persons who ha?e lost a hand are active and successful in many vocations, even where manual labor is required.* 1 Peoria, D. & E. E. Co. v. Hardwick, 53 111. App. 161. 2. Presumptions. Every citizen is presumed to enjoy a normal condition of mind and body, until the contrary is shown.* 1 State ex rel. Board of Health v. Lederer, 52 N. J. Eq. 675, 29 Atl. 444. 3. Direct testimony. A witness who has had continuous opportunity of observation may, although not an expert, testify directly what ordinary acts a person was able or unable to do. This is matter of fact, the result of observation, although involving in some measure opinion or judgment.* iParker v. Boston & H. S. B. Co. 109 Mass. 449, Approved in Com. v. Stur- tivant, 117 Mass. 134, 19 Am. Rep. 401; Sloan v. New York C. R. Co. 45 N. Y. 125 ; Chicago City R. Co. v. Van Vleck, 143 111. 480, 32 N. E. 262; Re Goldthrop, 94 Iowa, 336, 58 Am. St. Rep. 400, 62 N. W. 845 ; Stone v. Moore, 83 Iowa, 186, 49 N. W. 76. French v. Ware, 65 Vt. 338, 26 Atl. 1096 (a man's divorced wife is compe- tent to testify to his inability to labor). 40 BRIEF ON FACTS. Ashley Wire Co. v. McFadden, 66 111. App. 26. (Tlie daughter of a de- cedent may testify as to his ability to perform hard labor.) Lawson v. Conaway, 37 W. Va. 159, 18 L.E.A. 627, 38 Am. St. Rep. 17, 16 S. B. 564; Harris v. Detroit City R. Co. 76 Mich. 227, 42 N. W. 1111. (A witness may testify as to the physical ability of another whose arm was broken.) Adams v. People, 63 N. Y. 621, AflE'g 3 Hun, 654 {testimony that one's eye- sight was good) . Missouri, K. & T. R. Co. v. Wright, 19 Tex. Civ. App. 47, 47 S. W. 56 (tes- timony by a physician that one injured was confined to his bed, and could not walk without a crutch or help of some kind). Ashland v. Marlborough, 99 Mass. 47. (A nonexpert witness may testify to acts and appearances which indicate disabilil^ or the contrary, but may not give opinions on the subject.) Chattanooga, R. & C. R. Co. v. Huggins, 89 Ga. 494, 15 S. E. 848. (A witness, after stating facts within his knowledge tending to show that plaintiflF in a suit for personal injuries was seriously disabled, may express his opinion that he is only able to do work of a very light nature. ) A person injured at a railroad crossing may testify as to the first point at which the train could he seen on account of certain specified obstruc- tions. The question does not call for a conclusion. Kansas City M. & B. R. Co. V. Weeks, 135 Ala. 614, 34 So. 16. See also Wallace v. North Alabama Traction Co. 145 Ala. 682, 40 So. 89. 4. Expert testimony. An expert may testify to the degree of physical and mental ability.^ 1 Beckwith v. New York C. R. Co. 64 Barb. 299. Also whether one having a wooden leg was capable of committing a crime in the matter alleged. State V. Perry, 41 W. Va. 641, 24 S. E. 634. As to how far a person is able to walk after being shot through the heart. State V. McLaughlin, 149 Mo. 19, 50 S. W. 315. Whether an injured condition of one's arm might coexist with the ability to use it in the manner witnessed by the jury. Graves v. Battle Creek, 95 Mich. 266, 19 L.R.A. 641, 35 Am. St. Rep. 561, 54 N. W. 757. But in order to admit testimony that A, having lost an eye, would not under given circumstances see an object as well as B, who had not, it should appear that the expert had examined their eyes. People v. Marseiler, 70 Cal. 98, 11 Pac. 503. Nor can expert evidence be given by one who does not show himself pos- sessed of special knowledge on the subject, as to the capacity of a maimed person to do various kinds of work by the use of an artificial leg. ■ New Jersey Traction Co. v. Brabban, 57 N. J. L. 691, 32 Atl. 217. ABILITY. 41 Persons who have noticed the agility and power displayed hy fish in ascend- ing rivers may express an opinion as to their ability to ascend a cer- tain stream. Cottrill v. Myrick, 12 Me. 222. 5. Experiments in court. A party or a witness may be permitted to demonstrate his physical ability or inability in court when the adverse party is afforded an opportunity to cross-examine him.^ On the cross-examination it is in the discretion of the court whether or not to require a party who has testified to a physical inability involved in the issue, to perform an act in the presence of the jury which may manifest its nature and extent* 1 Prichard v. Moore, 75 111. App. 553. (In an action for malpractice in the treatment of a fractured arm the plaintiff, while on the witness stand, may show the jury to what extent he can use his arm.) Citizens' Street K. Co. v. Willoeby, 134 Ind. 563, 33 N. E. 627. (In an action for personal injuries a physician may exhibit the plaintiff to the jury, and place him in different attitudes, in order to enable them to determine the extent of his disability.) Osborne v. Detroit, 32 Fed. 36. (The plaintiff's medical attendant, not sworn, may demonstrate her loss of feeling by thrusting a pin into her alleged paralyzed side.) Tompkins v. Scranton Traction Co. 3 Pa. Super Ct. 576 (test of the eyesight of a witness to an accident) . 2 Heath v. State, 93 Ga. 446, 21 S. E. 77 (not error to refuse to allow a witness to go to the window and look at a person upon the street who was not visible to the judge or jury from their position, to test the witness's power of vision). Ort v. Fowler, 31 Kan. 478, 47 Am. Eep. 501, 2 Pac. 580 (not error to require a defendant to read, whose defense to a note was that he signed in reliance on the false representations of its contents by the payee, because he was unable to read it). Hatfield v. St. Paul & D. R. Co. 33 Minn. 130, 53 Am. Eep. 14, 22 N. W. 176, (not error to refuse to require plaintiff to walk after she testified she could not walk without limping). But compare Condition and Ckiminal Trial Bbief. 6. Experiments out of court. Testimony concerning ex 'parte tests as to how far objects could be seen upon the railroad track, and within what dis- tance a train could be stopped at the scene of the accident, is admissible when made under essentially identical conditions.* 1 Burg V. Chicago, R. I. & P. R. Co. 90 Iowa, 106, 48 Am. St. Rep. 419, 42 BRIEF ON FACTS. 57 N. W. 680; Byers v. Nashville, C. & St. L. R. Co. 94 Tenn. 345, 29 S. W. 128 ; Chicago & A. E. Co. v. Logue, 47 111. App. 292 ; Chicago & A. R. Co. V. Legg, 32 111. App. 218. (Witnesses may testify as to experiments made to determine whether stock, before going upon the track, could have been seen by railroad employees, in view of the dis- puted character of the surroundings.) 7. Witness's ability. It is competent to ask a witness whetlier he was able to do a specified act,'' or used the best ability and skill that he posses- sed,^ for his ability is a fact within his own knowledge. 1 People V. Tubbs, 37 N. Y. 586. 2 Doyle V. New York Eye & Ear Infirmary, 80 N. Y. 631, 633 (que9tio]i to physician sued for malpractice; but whether the question was lead ing was not determined). Brink v. Hanover F. Ins. Co. 80 N. Y. 108, 116 (diligence in serving no- tice). Choate v. Southern E. Co. 119 Ala. 611, 24 So. 373. (A conductor and engineer may testify, as expert witnesses, that they did everything in their power to stop the train and avert an injury.) Winter v. Central Iowa R. Co. 80 Iowa, 443, 45 N. W. 737. (In an ac- tion for personal injuries the plaintiff may testify that after the ac- cident he tried to work, but was unable to do so. ) 8. Conclusions. Testimony by one injured, that he has not done any work since the accident because not able to do any, is not a conclusion, but a statement that his physical ability has prevented him from working.^ 1 Cass V. Third Ave. E. Co. 20 App. Div. 591, 47 N. Y. Supp. 356. 9. Relevancy and materiality. Evidence that one injured in driving across a ditch was short-sighted and wore spectacles is admissible on the issue of contributory negligence.^ Testimony as to the health and strength of a man several years before is inadmissible on the question of his capacity to earn wages.^ The testatrix's ability to labor may be shown in rebutta' of ABSENCE. 43 the contestant's evidence that the testatrix was weak in body and mind.' 1 Austin V. Ritz, 72 Tex. 391, 9 S. W. 884. 8 Evans v. Horton, 93 Ala. 379, 9 So. 534. 8 Denny v. Pinney, 60 Vt. 524, 12 Atl. 108. ABSENCE. 1. Keputation. 2. Fact of letters received. 3. Contents. 4. Telegrams. 5. Entries by deceased person. 6. Answers to inquiries. 7. Presumption of continuance. 8. Public officer's absence. 9. Reason or motive for absence. 10. Opinions. 11. Relevancy and sufficiency. See also Abandonment; Desertion; Domicil; Residence. Presumption of death from absence, see Death. 1. Eeputation. Absence of a person from the state cannot he proved by gen- eral reputation.^ But general reputation is competent in corroboration of cir- cumstantial evidence of absence.^ 1 State Bank v. Seawell, 18 Ala. 616; Mitchell v. State, 114 Ala. 1, 22 So. 71. In Wheeler v. Webster, 1 E. D. Smith, 1, the court refused to take judicial notice that Daniel Webster was not a resident of New York. 2 Testimony that witness knew the person, and that he had recently broken up his establishment and was sold out, and thereafter either departed or kept concealed; that previous thereto witness saw him frequently, but since then not at all; and that it is generally understood and be- lieved, etc., — Held, sufficient to give the magistrate jurisdiction under the statute as to absent and absconding debtors, lie Faulkner, 4 Hill, 598; Van Alstyne v. Erwin, 11 N. Y. 331. 44 BRIEF ON FACTS. 2. Fact of letters received. Testimony of a witness that lie received letters from a de- ponent apparently from places without the state, shortly be- fore the trial, is competent proof of absence.^ i Carman v. Kelly, 5 Hun, 283 ( so held for the purpose of excusing his nonproduction, and to let in his deposition de bene esoe). Gaines v. Eelf, 12 How. 472, 534, 13 L. ed. 1071, 1097 (Catron, J., deliver- ing the opinion of the court, says: "The date of a letter is evidence to prove vphere the writer was, and the time when he wrote"). The like evidence was received in Prince v. Blackburn, 2 East, 250, to show absence of subscribing witness. For the presumption that letters received in answer are from the person addressed, see Letters. 3. Contents. Letters written during absence from home are admissible in evidence as explanatory of the nature of the departure and absence, the departure and absence being regarded as one con- tinuous act.^ 1 Rawson v. Haig, 2 Bing. 99, 9 J. B. Moore, 217, 1 Car. & P. 77, Cited in Cattison v. Cattison, 22 Pa. 277. 4. Telegrams. A telegram received in reply, purporting to be from a per- son apparently at a distant place, is not competent to show his absence.* IHowley v. Whipple, 48 N. H. 487. (The reason is that it is not an orig- inal. See note to Oregon S. S. Co. v. Otis, 14 Abb. N. C. 394.) Contra: Conner v. State, 23 Tex. App. 378, 5 S. W. 189 (absence of wit- ness so as to let in deposition) . 5. Entries by deceased person. To prove absence of a person since deceased, from a speci- fied place, entries made by him in the course of professional duty, of official acts, the making of which would have required his presence at another place, are competent evidence that he was present at the latter place at the time stated in such entries.' 1 Clark V. Society of Saint James' Church, 21 Hun, 95. ABSENCE. 45 6. Answers to inquiries. Answers given to inquiries duly made in search oJ a person are not hearsay, but competent as part of the res gestce, to show his absence ;' otherwise of hearsay statements, or answers not induced by due inquiry for the purpose.* 1 People V. Rowland, 5 Barb. 449 ( answers given at residence and infor- mation derived from neighbors on inquiry for a subscribing witness). Bronner v. Frauenthal, 37 N. Y. 166, 169, 172 (inquiries at the usual stopping place within the state of a nonresident whose deposition had been taken de bene esse ) . Buswell V. Lincks, 8 Daly, 518, 523, and eases cited (answers given at residences to a person calling to serve process). To similar effect, Chase v. Lawson, 36 Hun, 221; Phelps v. Foot, 1 Conn. 387. Van Dyne v. Thayre, 19 Wend. 162, 165 (holding that the absence of a subscribing witness should be shown by diligent inquiry at his former residence, and by information derived from his neighbors). To similar effect see Jackson ex dem. Lansing v. Chamberlain, 8 Wend. 620 ; Jackson ex dem. Woodruff v. Cody, 9 Cow, 140. Contra: Fry v. Bennett, 1 Abb. Pr. 289 (holding answers given at the residence, to a person inquiring for a witness whose deposition had been taken de bene esse, were not competent as a ground for reading his deposition). See also 1 Taylor, Ev. 523n-. Compare discussion in Howard v. Holbrook, 9 Bosw. 237, 23 How. Pr. 64 (holding that after being told that the principal was absent, calling again and finding one who answered to the name and admitted iden- tity, was sufficient evidence of identity to go to the jury). Whether the rule is applicable in a criminal case to prove an element of the offense, — query. See Fictitious Persons; Criminal Trial Brief. 2 Com. V. Ricker, 131 Mass. 581 (holding, on the trial of an indictment, that on the question whether defendant was in the commonwealth at a particular time the testimony of a, sergeant of police that on a certain day a police officer reported to him that he had seen the de- fendant in the street that night is inco.npetent) . 7. Presumption of continuance. The fact of continued -nonresidence at a previous time having been shown, absence from the state at the present time may be inferred.^ i Nixon V. Palmer, 10 Barb. 175, Reversed on other ground in 8 N. Y. 398 ; Rixford v. Miller, 49. Vt. 319 ; State Bank v. Seawell, 18 Ala. 616. 46 BEIEF OIT PACTS. 8. Public officer's absence. Absence of one of several officers or other persons clothed with authority of a public nature cannot be presumed from the mere fact that an official act or report was signed by the others only.* 1 Yates V. Russell, 17 Johns. 461, 468 (referee's report sustained by con- trary presumption). McCoy V. Curtice, 9 Wend. 17, 24 Am. Dec. 113 (warrant for collection of taxes sustained as justification to collector, by contrary presumption ) . To the same effect, Doolittle v. Doolittle, 31 Barb. 312. Downing v. Rugar, 21 Wend. 178, 184, 34 Am. Dec. 223 (same of pro- ceedings of overseers of poor on which warrant was issued ) . Woolsey v. Thompkins, 23 Wend. 324 (same in case of laying out a high way). Doughty V. Hope, 3 Denio, 249, 594, Affirmed in 1 N. Y. 79 (report of commissioners of estimate and assessment). To same effect, Miller v. Garlock, 8 Barb. 153; Colman v. Shattuck, 2 Hun, 497; Tucker v. Rankin, 15 Barb. 471. People ex rel. Kingsland v. Bradley, 64 Barb. 228 (official certificate signed by two, aided by the same presumption as to the presence of the third, the fourth being dead and the fifth having vacated the office by re- moval ) . Smith V. Helmer, 7 Barb. 416 (proceedings by commissioners to alter high- way). Horton v. Garrison, 23 Barb. 176 (note given by school trustees). Stewart v. Wallis, 30 Barb. 347; People ex rel. Kingsland v. Palmer, 52 N. Y. 87 (presumed that all met) ; Delaware County Bd. of Excise Comrs. V. Sackrider, 35 N. Y. 154 (presumed that the consent of all was obtained) ; John Shillito Co. v. MeClung, 2 C. C. A. 526, 6 U. S. App. 128, 51 Fed. 868 (absence of the Secretary of the Treasury will be presumed in support of the decision of the assistant secretary). 9. Reason or motive for absence. On the question whether the absence of a person was with fraudulent intent, his declarations, made about the time of his departure or during his absence, and letters written by him during the absence, are competent against him.* The intent of an absentee in departing may be shown by letters written, acts done, and declarations made about the time of departure." 1 Brady v. Parker, 67 6a. 636 (declarations just before departure). ABSENCE. 47 Smith V. Cramer, 1 Scott, 541, 1 Bing. N. R. 1, 1 Hodges, 124 (letters written a month prior to departure). Koueh V. Great Western K. Co. 1 Q. B. 51, 61, 4 Perry & D. 686, 2 Eng. Ry. & C. Cas. 505, 5 Jur. 826 (letters written during absence). 2Thorndike v. Boston, 1 Met. 242. (A letter expressing an intent to reside abroad permanently is admissible in the writer's favor as a declara- tion, when written without knowledge of the assessment of the tax sought to be enforced.) Declarations made three weeks before removal, or about the time of it, and expressive of intent, are admissible. Kilburn v. Bennett, 3 Met. 199; Salem v. Lynn, 13 Met. 544. Declarations of a, person, made in connection with his departure from a, place and concerning his intent, are admissible. Burgess v. Clark, 3 Ind. 250; Church v. Rowell, 49 Me. 367. Ross V. Clark, 32 Mo. 296. (Testimony of the sale of goods in an unusual or clandestine manner at under prices is admissible to show the intent of a debtor's absence.) Such declarations and letters may be competent in his own favor. ■^ 1 United States v. Penn, 13 Nat. Bankr. Reg. 464, Fed. Cas. No. 16,025 (holding that where the question in issue was whether the defendant has absconded, his declarations made while on his way from his place of residence, as to his intention of returning, were competent in his favor ) . Declarations made on return may be received. Bateman v. Bailey, 5 T. R. 512. (A conversation with a bankrupt, which passed on his re- turn after nearly two days' absence, was received.) But they must have been made soon after his return. Lees v. Marton, 1 Moody & R. 210. ilarsh V. Meager, 1 Starkie, 353 (holding a conversation with the bank- rupt not competent if it did not appear to be contemporary with the act, or immediately subsequent). 10. Opinions. Testimony by a witness that he knows a party is not about to remove out of the state on a specified date is merely an opin- ion, and inadmissible.^ 1 Baldwin v. Walker, 94 Ala. 514, 10 So. 391. 11. Relevancy and sufficiency. Proof of absence out of the jurisdiction of an alleged ac- 48 BRIEF ON FACTS. complice of the defendant is inadmissible where it can have no legitimate bearing upon the issue.^ Evidence that a party "went east" with his family, and re- mained several years, is insufficient to show that he was at any time out of the state.* 1 People V. Sharp, 107 N. Y. 427, 1 Am. St. Rep. 851, 14 N. E. 319. 2Tremaine v. Weatherby, S8 Iowa, 615, 12 N. W. 609; Hallet v. Bassett, 100 Mass. 167. (Absence from the state, of a seafearing man, is insuffi- cient to bar the running of the statute of limitations, when he main- tained a furnished room in the state, which he occupied at intervals, and regarded as his home.) Clarke v. Cummings, 5 Barb. 339. (Reasonable search and inquiry for an absent life tenant is a mixed question of law and fact to be determined by the particular circumstances of the case; and inquiry of a tenant only may be reasonable inquiry.) ABSTRACTS. 1. Voluminous documents. 2. Lost or destroyed documents. 3. Abstracts of title. a. In general. b. Admissibility under Illinois burnt records act. 4. Extracts from reports. 5. Extracts from books and records. See also Accounts; Indebtedness; Negative. As to liability of officer for defects in abstracts of title, see note to Mallory V. Ferguson, 22 L.R.A. 99. For right of abstractors to inspect records, see note to Re Caswell, 27 L.E.A. 82. 1. Voluminous documents. If the original documents are inconveniently voluminous or numerous, and the result to be gathered from them is the ma- terial fact, a qualified witness who has examined them may testify to the result, subject to cross-examination on details; ABSTEACTS. 49 and an abstract or summary made by him out of court, with the originals before him, and which he testifies is correct, may be received in evidence instead of requiring the originals.' Eut this is discretionary with the court.* 1 Burton v. Driggs, 20 Wall. 125, 22 L. ed. 299; National Ulster County Bank v. Madden, 41 Hun, 113 (Landon, J., aaya: "A true copy dif- fers from a true abstract only in degree" ) . HoUingsworth v. State, 111 Ind. 289, 12 N. E. 490 (holding the rule equally applicable in criminal cases). In Boston & W. K. Corp. v. Dana, 1 Gray, 83, 104, Bigelow, J., says : "It should only be done where books and documents are multifarious and voluminous and of a character to render it difficult for the jury to comprehend material facts without the aid of such statements, and even in such cases they should not be admitted unless verified by persons who have prepared them from the originals in proof, and who testify to their accuracy, and after ample time has been given to the adverse party to examine them and test their correctness." Accountants may testify to the result of their examination of voluminous books, records, papers, or entries of such a character as to render it difficult for the jury to arrive at a. correct conclusion. Chicago, St. L. & P. R. Co. V. Wolcott, 141 Ind. 267, 50 Am. St. Rep. 320, 39 N. E. 451 ; Culver v. Marks, 122 Ind. 554, 7 L.R.A. 489, 17 Am. St. Rep. 377, 23 N. E. 1086; Equitable Acci. Ins. Co. v. Stout, 135 Ind. 444, 33 N. E. 623; Crawford v. Eoney, 126 Ga. 763. 55 S. E. 499. Harrison v. Middleton, 11 Gratt. 527. (A witness may use an extract from surveyor's field notes to refresh his recollection, but, since it is not evidence, he must then speak from his recollection.) Johnson v. Kershaw, 1 De G. & S. 264, 11 Jur. 553, 795. (The result of an expert's examination of partnership books is inadmissible where the books are not in evidence.) State V. Powell, 40 La. Ann. 234, 8 Am. St. Rep. 522, 4 So. 46. (Certified extracts from the books of the auditor of public accounts, showing the condition of the account of a defaulting tax collector, are competent evidence in a suit against him and his sureties.) 2 Lynn v. Cumberland, 77 Md. 449, 26 Atl. 1001. Von Sachs v. Kretz, 72 N. Y. 548, Affirming 10 Hun, 95 (holding it not error to refuse to allow a witness with the books before him to give a summary where it did not appear that expert testimony was neces- sary). 2. lost or destroyed documents. An abstract made from lost or destroyed documents is ad- Abb. Facts— ^. 50 BRIEF ON FACTS. missible as secondary evidence when its correctness is testified to by the person making it, and the loss of the original is shown.^ 1 Mtna. Ins. Co. v. Weide, 9 Wall. 677, 19 L. ed. 810 ; Florida C. & P. R. Co. V. Bucki, 16 C. C. A. 42, 30 U. S. App. 454, 68 Fed. 864; Mayson V. Beazley, 27 Miss. 106; Ritchie v. Kinney, 46 Mo. 298. (A statement made up from bank books is inadmissible when their loss is not shown.) Sizer v. Burt, 4 Denio, 426. (Statement by a witness of the parts ex- tracted by him from a document since lost or destroyed is competent secondary evidence, where he has read the whole document, and can give a general account of its contents. ) Bobbins v. Ginnochio, — Tex. Civ. App. — , 45 S. W. 34. (A purported ab- stract of the destroyed record of a deed is admissible as common-law evidence. ) 3. Abstracts of title. a. In general. — An abstract of title is admissible to show that a certain conveyance appeared upon it, and as a reason for obtaining a quitclaim deed;'' to show the original ownership of land sold for taxes ;^ and, when furnished by a vendor, is ad- missible against him to show defective title.' But an abstract is not admissible to show title at a certain time, although the records of title have been destroyed, without proof of its cor- rectness by the person who made or compared it.* 1 Seaman v. Bisbee, 163 111. 91, 45 N. B. 208. 2 People ex rel. Hamilton Park Co. v. Wemple, 67 Hun, 495, 22 N. Y. Supp. 497. 3 Hartley v. James, 50 N. Y. 38; Kane v. Eippey, 22 Or. 296, 23 Pac. 180. 4 Irwin V. Scheuerer, 10 Ohio C. C. 568, 6 Ohio C. D. 815. An abstract of the registries upon a lot showing the granting by the Crown of a patent is not evidence of title or of any of the conveyances men- tioned in it. Eeed v. Ranks, 10 U. C. C. P. 202. A certified abstract of title made by a county clerk is admissible in evi- dence. Frugia v. Trueheart, 48 Tex. Civ. App. 513, 106 S. W. 736. Loss of deed and the destruction of county records having been shown, an abstract of title made by a former recorder was admitted to show a tax deed to plaintiff's remote grantor. Kries v. Holladay-Klotz Land & Lumber Co. 121 Mo. App. 184, 98 S. W. 1086. h. Admissibility under Illinois burnt records act. — An ab- stract of title is admissible when made in the ordinary course ABSTRACTS. 51 of business prior to the destruction of a deed and its record/ or when found in the hands of the owner with deeds from pre- ceding grantees, and presumably handed down as an accompani- ment of the muniments of title/ or when found in the possession of abstracters engaged as such at the time of the fire/ although it fails to show that some of the lost deeds were properly ac- knowledged; and it may be introduced in evidence in part,* but is incompetent to prove that a deed was recorded prior to the destruction of the records, unless the deed itself is lost or destroyed.^ An abstract of title dated prior to the time the original docu- ments were destroyed is admissible in ejectment without proof that the originals were duly executed by persons in actual pos- session of the premises at the time of the destruction of the records.* That abstract of title was prepared by one clerk from memoranda made by others from the record does not render it inadmissible as the copy of a copy / nor are extracts made from the destroyed records, and in the possession of abstracters, secondary evidence of the abstract of title compiled from them.' 1 Russell V. Mandell, 73 111. 136; Miller v. Shaw, 103 111. 277. Such an abstract is competent after preliminary proof showing that origi- nal conveyances or records included therein have been lost or destroyed or cannot be produced. Glos v. Wheeler, 229 111. 272, 82 N. E. 234. 2Richley v. Farrell, 69 111. 264. 3 Converse v. Wead, 142 111. 132, 31 N. E. 314. 4 Heinsen v. Lamb, 117 111. 549, 7 N. E. 75. 6 Walton V. Follansbee, 165 111. 480, 46 N. E. 459. « Chicago & A. E,. Co. v. Keegan, 152 111. 413, 39 N. E. 33. 7 Heinsen v. Lamb, 117 111. 549, 7 N. E. 75. 8 Converse v. Wead, 142 111. 132, 31 N. E. 314. 4. Extracts from reports. The putting in evidence of statements from a report produced by the other party under order of the court does not make the whole report admissible on the part of the party who produced it, but as much of it as relates to the statements introduced may be proved.^ Part of the returns made by officers of a turnpike company 52 BKIEF ON FACTS. to the state authorities as to the value of capital stock may be introduced against the company to show the value of the road.* iLaufer v. Bridgeport Traction Co. 68 Conn. 475, 37 KR.A. 533, 37 Atl. 379. 2 West Cheater & W. PI. Road Co. v. Chester County, 182 Pa. 40, 37 Atl. 905. 5. Extracts from books and records. Records when used to prove the facts therein contained should, as a general rule, be produced entire.^ An unsworn transcript from the records of the registrar of vital statistics is inadmissible to prove cause of death f nor is a certificate of the executive department, which gives sub- stantially the contents or a part of the contents of a record, ad- missible ;* nor is the mere certificate of the custodian of record sufficient to prove that a certain fact appears by them.* ISTeither will an authenticated abstract of a judgment, which states an impossible date as that when the judgment was rendered, be received in evidence, although the error is manifestly clerical.' 1 Crone v. Dawson, 19 Mo. App. 214. Little V. Barlow, 37 Fla. 232, 53 Am. St. Kep. 249, 20 So. 240. (To sus- tain the defense of res judicata the complete record in the former suit, including the judgment, should be produced, and not incomplete and detached portions.) O'Hara v. Mobile & 0. R. Co. 22 C. C. A. 512, 40 V. S. App. 471, 76 Fed. 718. (A party desiring to use as evidence part of the record of a judicial proceeding may introduce such portion as is material, without producing a transcript of the whole record.) 2 Metropolitan L. Ins. Co. v. Anderson, 79 Md. 375, 29 Atl. 606. 3 Doe ex dem. Henderson v. Roe, 16 Ga. 521. 4 Wayland v. Ware, 109 Mass. 248. 5 Rushing V. Willis, — Tex. Civ. App. — , 28 S. W. 921. ACCBPTAITCE. 53 ACCEPTANCE. 1. Judicial notice. 2. Burden of proof. 3. Presumptions. a. Acceptance of beneficial instrument or grant. (1) In general. (2) By corporation or officer thereof. b. Acceptance of bill of exchange. e. By carrier, of goods for transportation. d. Acceptance of highways. 4. Documentary evidence. 5. Parol evidence concerning written acceptance. 6. Direct question. 7. Admissions. 8. Res gestce of receiving. 9. Relevancy and materiality; acceptance of deed or lease; of order, 10. Acceptance of goods or work. 11. Acceptance of land patent. 12. Weight, effect, and sufficiency. a. Acceptance of land dedicated to public use. b. To satisfy statute of frauds. c. Of bill of exchange. See also Dedication; Delivery. Sufliciency and effect of acceptance of bill or draft, see notes to Hopps v. Savage, 1 L.R.A. 648, and Fiske v. First Nat. Bank, 7 L.E.A. 209. Of forged paper, see note to Goshen Nat. Bank v. Bingham, 7 L.E.A. 595. Promise to accept, see note to Lindley v. First Nat. Bank, 2 L.E.A. 709. Validity of oral promise to accept an order or bill of exchange, see note to Allen V. Leavens, 26 L.E.A. 620. 1. Judicial notice. The court cannot take judicial notice that a railroad company has accepted the provisions of a statute requiring it to fence its right of way.* J Gorman v. Pacific R. Co. 26 Mo. 441, 72 Am. Dee. 220. 2. Burden of proof. The burden of proof is on the party alleging that promissory notes were accepted as payment.* One seeking to foreclose a mortgage against the grantee in a 54 BRIEF ON FACTS. deed by wliicli tlie mortgage is assumed has the burden of prov- ing a delivery to, and acceptance by, the grantee of the deed.* The burden of proving delivery and acceptance of goods sold, so as to take the case out of the statute of frauds, rests upon the person setting up the contract.' One who receives and uses machinery,* or opens packages of goods and fails to object that they do not correspond with the sample,' has the burden of rebutting his apparent acceptance of the merchandise. If the holder of a bill of exchange relies upon a conditional acceptance he must show affirmatively that the condition has been complied with.* 1 Bradley v. Harwi, 43 Kan. 314, 23 Pac. 566; Olvey v. Jackson, 106 lud. 286, 4 N. E. 149. 2 Shattuck V. Rogers, 54 Kan. 266, 38 Pac. 280. 3 Harris Photographic Supply Co. v. Fisher, 81 Mich. 136, 45 N. W. 661. 4 Whitney Iron Works Co. v. Keuss, 40 La. Ann. 112, 3 So. 500. 5 Winelander v. Jones, 77 Iowa, 401, 42 N. W. 333. 6 Ford V. Angelrodt, 37 Mo. 50, 88 Am. Dec. 174. 3. Presumptions. a. Acceptance of heneficial instrument or grant. — (1) In general. — -An infant's acceptance of a grant is presumed from the beneficial nature of the grant, if it is wholly beneficial and imposes no burden.* Acceptance of a bond, deed, gift, or other beneficial instru- ment is presumed^ or inferred from delivery to, and retention by, a grantee,* and until the contrary appears;* but no such presumption will arise as long as the grantee is ignorant of the conveyance.' 1 Francis v. New York & B. Elev. R. Co. 17 Abb. N. C. 1, 6; Fellows v. Wood, 59 L. T. N. S. 513, 52 J. P. 822; Standiford v. Standiford, 97 Mo. 231, 3 L.R.A. 299, 10 S. W. 836; Tobin v. Bass, 85 Mo. 654, 55 Am. Rep. 392; Sneathen v. Sneathen, 104 Mo. 201, 24 Am. St. Rep. 326, 16 S. W. 497; Davis v. Garrett, 91 Tenn. 147, 18 S. W. 113. 2 Peavey v. Tilton, 18 N. H. 151, 45 Am. Dec. 365 ; Mallory v. Stodder, 6 Ala. 801; Church v. Oilman, 15 Wend. 656, 30 Am. Dec. 82; Lady Superior of Cong. Nunnery v. McNamara, 3 Barb. Ch. 375, 49 Am. Dec. 184 ; Jackson ex dem. Smith v. Bode, 20 Johns. 187 ; Guard v. Bradley, 7 Ind. 600; Merrills v. Swift, 18 Conn. 257, 46 Am. Dec. 315; Brown- ACCEPTANCE. 55 low V. Wollard, 61 Mo. App. 124; Tuttle v. Turner, 28 Tex. 759; Hu- lick V. Scovil, 9 111. 159. (The presumption that a party will accept a deed because it is beneficial to him will never be carried so far aa to consider him as having accepted it.) Boyd V. Bethel, 10 Ky. L. Eep. 470, 9 S. W. 417. (Where a deed forty years old has been accompanied by possession the presumption arises that it has been accepted.) Hurst V. McMullen, — Tex. Civ. App. — , 47 S. W. 666. (Acceptance of a recorded deed, wherein the grantee assumes the payment of notes, will be presumed where he permits it to go in evidence without objection.) Eenfro v. Harrison, 10 Mo. 411. (The acceptance of a deed by a grantee will not be presumed unless the grant be certainly to his benefit.) A wife's acceptance is presumed where it appears that a mortgage intend- ed for her benefit was delivered to her husband. Rhea v. Planters' Mut. Ins. Co. 77 Ark. 57, 90 S. W. 850. Assignment or deed of trust for creditors: The law presumes the assent of creditors to a deed of trust or an assign- ment beneficial to them. The Governor v. Campbell, 17 Ala. 566; Benning v. Nelson, 23 Ala. 801; Wiawall v. Boss, 4 Port. (Ala.) 321; Hempstead v. Johnston, 18 Ark. 123, 65 Am. Dec. 458; Forbes v. Scannell, 13 Cal. 242; De Forest v. Bacon, 2 Conn. 633; Gibson v. Eeese, 50 111. 383; Paul v. Logansport Nat. Bank, 60 Ind. 199; NicoU v. Mumford, 4 Johns. Ch. 522, 529 ; Martin v. Fun.k, 75 N. Y. 134, 31 Am. Eep. 446; North v. Turner, 9 Serg. & E. 244; Brashear v. West, 7 Pet. 608, 8 L. ed. 801 ; Tompkins v. Wheeler, 16 Pet. 106, 10 L. ed. 903. A creditor is presumed to accept an assignment for the benefit of all credit- ors by which property is to be equally distributed pro rata, where no release or other condition is stipulated for on behalf of the debtor. Halaey v. Fairbanks, 4 Mason, 206, Fed. Cas. No. 5,964. But the assent of creditors to an assignment made for their benefit cannot be presumed where the indenture was between the debtor and trustees, and not intended to be signed by the creditors, and the trustees were to make distribution without preference among all the creditors, who were not required to release their demands. Russell v. Woodward, 10 Pick. 408. For other authorities on presumption of acceptance by creditors of deed of trust or assignment, see cases in note in 24 L.R.A. 369. Gifts: The acceptance of a gift is presumed. Matson v. Abbey, 70 Hun, 475, 24 N. Y. Supp. 284 ; Dunlap v. Dunlap, 94 Mich. 11, 53 N. W. 788 ; Frazier v. Perkins, 62 N. H. 69. Where the grant is an unqualified gift the presumption of acceptance can be rebutted only by proof of dissent. Mitchell v. Ryan, 3 Ohio St. 377. 56 BRIEF ON FACTS. Public grant: It will be presumed that a grant of public land was accepted. Caledonia County Grammar School v. Kent, — Vt. — , 77 Atl. 877. Wills: A widow will be presumed to accept a provision made for her in the will when not expressly waived, if it is more beneficial than her dower. Merrill v. Emery, 10 Pick. 507. Lease : The acceptance of a lease will not be presumed because, on the face of it, it appears to be beneficial to the lessee, but the question is whether, un- der all the circumstances, the lessee derives a benefit from the transac- tion. Camp V. Camp, 5 Conn. 291, 13 Am. Dec. 60. 3 Of official bond by boMk: Bank of United States v. Dandridge, 12 Wheat. 64, 6 L. ed. 552; Graves v. Lebanon Nat. Bank, 10 Bush, 23, 19 Am. Rep. 50. Of deed: Smith V. Cole, 109 N. Y. 436, 17 N. E. 356. 4 0/ deed: Allen V. De Groodt, 105 Mo. 442, 16 S. W. 494, 1049; Tibhals v. Jacobs, 31 Conn. 428. 6 Moore v. Flynn, 135 111. 74, 25 N. E. 844; First Nat. Bank v. Ridenour, 46 Kan. 707, 718, 27 Pac. 150. (Acceptance by the beneficiary of a chattel mortgage executed in good faith without his knowledge will be pre- sumed, and his subsequent actual acceptance will relate back to the day of filing.) (2) By corporation or officer {hereof. — It will be presumed that a corporation has accepted a beneficial grant or right con- ferred upon it.^ The acceptance of a charter by a corporation may be inferred from any corporate acts/ of which the books of the corporation are the best evidence.^ One notified of his appointment as director of a corporation will be presumed to have accepted, unless he expressly declines.* 1 Charles River Bridge v. Warren Bridge, 7 Pick. 344; Bangor, 0. & M. R. Co. V. Smith, 47 Me. 34; Astor v. New York Arcade R. Co. 48 Hun, 562, 1 N. Y. Supp. 174; City R. Co. v. Citizens' Street R. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653. Acceptance by a city of a redemption of property made for its benefit will be presumed. People ex rel. Thome v. Hays, 4 Cal. 127. But there is no presumption, without evidence, that a railroad company accepted any rights under a, joint resolution of Congress. United States V. Northern P. R. Co. 41 Fed. 842. 2Gleaves v. Brick Church Turnp. Co. 1 Sneed, 491; Middlesex Husbandmen ACCEPTANCE. 57 & Mfra. Soc. v. Davis, 3 Met. 133 ; St. Joseph & I. R. Co. v. Shambaugh, 106 Mo. 557, 17 S. W. 581; Hudson v. Carman, 41 Me. 84; Palfrey v. Paulding, 7 La. Ann. 363. Assent to a new or additional charter by an existing corporation may be inferred from acta or omissions inconsistent with any other hypothesis; and when the new grant is beneficial very little Is required to find a presumpfion of acceptance. Com. ex rel. Claghorn v. Cullen, 13 Pa. 133, 53 Am. Dec. 450. A charter granted to certain persons is prima facie presumed to have been granted at their instance, and to have been accepted by them ; but such presumption is rebutted by evidence that no proceedings were ever had under the charter, and that seven years have elapsed since its date. Newton v. Carberry, 5 Cranch, C. C. 632, Fed. Cas. No. 10,190. Acceptance of a, special charter is shown where the act was passed at the incorporators' request, and accepted as amended at a meeting of the incorporators, who voted to build the contemplated railroad under it. State, Carlton, v. Dawson, 22 Ind. 272. 3 Coffin V. Collins, 17 Me. 440. 4 Dansville & W. E. Co. v. Brown, 90 Va. 340, 18 S. E. 278. h. Acceptance of hill of exchange. — Acceptance of a bill of, exchange may be inferred from the drawee's keeping the bill a great length of time, or by any other act which gives credit to it and induces the holder to consider it as accepted.* I Hough V. Loring, 24 Pick. 254; Dunavan v. Flynn, 118 Mass. 539. c. By carrier, of goods for transportation. — A carrier is pre- sumed to accept property for transportation under the respon- sibility created by common law, unless modified by statute or by special acceptance equivalent to a contract.* 1 London & L. F. Ins. Co. v. Rome, W. & O. R. Co. 68 Hun, 598, 23 N. Y, Supp. 231. d. Acceptance of highways. — Acceptance of a street or high- way will be presumed from slight circumstances if it appears beneficial and necessary to the public* Acceptance may be presumed from public use,* working, and repairs.* But acceptance cannot be presumed merely because the records have been lost or destroyed,* or from proof of the execution of a plat, where the plat, if accepted as a conveyance. 58 BRIEF ON FACTS. imposes upon the city the burden to open, improve, and repair the streets.^ 1 Mann v. Elgin, 24 111. App. 419. 8 Morse v. Zeize, 34 Minn. 35, 24 N. W. 287; Kennedy v. Le Van, 23 Minn. 513; Requa v. Rochester, 45 N. Y. 129, 6 Am. Eep. 52. 3 Brakken v. Minneapolis & St. L. E. Co. 29 Minn. 41, 11 N. W. 124; Pom- f rey v. Saratoga Springs, 104 N. Y. 459, 11 N. E. 43 ; Grube v. Nichols, 36 111. 92. But repair of streets in the vicinity will not constitute im- plied acceptance. Kennedy v. Cumberland, 65 Md. 514, 57 Am. Eep. 346, 9 Atl. 234. 4 Gaines v. Merryman, 95 Va. 660, 29 S. E. 738. 5 Littler v. Lincoln, 106 111. 368; State v. Trask, 6 Vt. 355, 27 Am. Dec. 554. 4. Documentary evidence. Letters relating directly to the refusal of defendants to accept )r pay for machinery for the price of which the action is brought, and to the statement of the specific reasons upon which such refusal was based, are admissible in evidence.^ Eut the blotter and check-book stubs of the treasurer of a cor- poration are inadmissible to show payment by the defendant of calls on shares of stock in proof of the assignment and accept- ance of the stock, in an action by an administrator to recover assessments paid after the alleged transfer, where the defend- ant is a stranger to the corporation.* Notes and renewals given for the purchase price of a water wheel, and letters in relation to them, are admissible in evidence, as bearing upon the question of its acceptance, although in a letter in which one of them was inclosed the purchaser reserves the question of acceptance for further consideration.* 1 Hummel v. Stern, 21 App. Div. 544, 48 N. Y. Supp. 528. 2 Tripp V. Appleman, 35 Fed. 19. S Valley Iron-Works Mfg. Co. v. Grand Rapids Flouring-Mill Co. 85 Wis. 274, 55 N. W. 693. 6. Parol evidence concerning written acceptance. A written acceptance cannot be varied by proof of a con- temporary parol agreement,* nor can an acceptance absolute on its face be shown by parol evidence to have been conditional.* ACCEPTANCE. 59 Parol evidence is admissible to show that a writing on a draft, which constitutes a valid acceptance, was intended for that pur- pose;' that acceptance of a draft was refused, although words were written on it and a partial payment made ;* that acceptance of a bill of exchange was stipulated not to waive counterclaims, or that particular parties always drew and accepted bills in the same form.* 1 C. Aultman & Co. v. Brown, 39 Minn. 323, 40 ]Sf. W. 159. 2 Haines v. Nance, 52 111. App. 406. One who accepts a writing directing him to pay a certain amount to the payee may show in an action upon the acceptance that there was a col- lateral agreement with the payee that he should not be required to pay except upon certain conditions. Penniman v. Alexander, 111 N. C. 427, 16 S. E. 408. A drawer who showed the payee an absolute agreement on the part of the drawee to accept the bill may testify that at such time he communi- cated to the payee conditions and restrictions to which the order was subject. Storer v. Logan, 9 Mass. 55. 3 Cortelyou v. Maben, 22 Neb. 697, 3 Am. St. Eep. 284, 36 N. W. 159. 4 Cook V. Baldwin, 120 Mass. 317, 21 Am. Eep. 517. 5 Bohn Mfg. Co. V. Harrison, 13 Mont. 293, 34 Pac. 313. fi Spencer v. Billing, 3 Campb. 310, 1 Rose, 362. An order by an agent on his principal for the shipment of goods of a cer- tain amount at specified prices, to a firm which writes its signature after the word "Accepted" upon the order, but leaves blank the place for the name of the purchaser, where there is no explicit statement of sale or purchase therein, is open to extrinsic evidence to show that the acceptance did not constitute a purchase of the quantity of goods spe- cified, but that they were shipped for some other purpose not expressed in the instrument. Colgate v. Latta, 115 N. C. 127, 26 L.E.A. 321, 20 S. B. 388. 6. Direct question. On the question whether goods delivered were accepted by the agent of a party, the agent cannot be asked whether he ever accepted them, for this calls for a conclusion or opinion; but the question should call for what was done or said or left un- done or unsaid.^ 1 Brewer v. Housatonic E. Co. 107 Mass. 277. 60 BEIEF ON PACTS. 7. Admissions. In an action on an order, the acceptance of whicli by the de- fendant iirm is at issue, it is competent to show admissions and actions of the firm with reference to the acceptance of the order and its genuineness.* But a promise or declaration of a buyer that he will at a certain day take goods then left for him at another place cannot be held an acceptance or an admission of acceptance.^ 1 Bruner v. Nisbett, 31 111. App. 517. 8 Shepherd v. Pressey, 32 N. H. 49. 8. Ees gestae of receiving. On the question whether one mentioned in an instrument as a party, and to whom it was delivered, accepted it, it is com- petent to ask what he did with it, and what he said about ac- cepting or signing.* 1 Stevens v. Miles, 142 Mass. 571, 8 N. E. 426. 9. Eelevancy and materiality; acceptance of deed or lease; of order. Delivery and acceptance of a deed may be established by cir- cumstances as well as direct proof.* But evidence of previous talks, acts, and negotiations of the parties is inadmissible to show the grantee's acceptance of a deed on a particular day, in the absence of proof that the grantee intended to accept the deed on that date.^ Use by an assignee for the benefit of creditors, of leased prem- ises for the benefit of the assigned estate beyond the time reason- ably necessary to remove therefrom, is material upon the issue whether he accepted the lease.' 1 Hubbard v. Cox, 76 Tex. 239, 13 S. W. 170. 2 Dikeman v. Arnold, 78 Mich. 455, 44 N. W. 407. 8 Draper v. Salisbury, 11 Misc. 573, 66 N. Y. S. R. 83, 32 N. Y. Supp. 757. Evidence tending to show that the alleged acceptor was not ACCEPTANCE. 61 indebted to the drawer in the amount of the order is competent when an oral acceptance of the order is in dispute.^ 1 Lavell V. Frost, 16 Mont. 93, 40 Pac. 146. 10. Acceptance of goods or work. Acts indicative of ownership by the purchaser may be given in evidence to show the acceptance of goods, and to take the case out of the statute of frauds.' And an attempt by a purchaser, upon examination of goods, to communicate to the vendor a message declining to accept them, is material as qualifying the act of receiving and retaining the goods, and rebutting the pre- sumption of acceptance, although the vendor did not receive the message.* In an action for the contract price of a well, evidence that defendant caused another well to be sunk near the one in ques- tion is admissible on the question whether he accepted plain- tiff's work, where the latter witnessed the work on the new well while endeavoring to remedy defects in the performance of his contract.* 1 Garfleld v. Paris, 96 U. S. 557, 24 L. ed. 821. Proof of acceptance is complete if the buyer has an opportunity to inspect the property, and pays for it, even if he complains of Its quality. Cas- selli V. Mosso, 90 N. Y. Supp. 371. A buyer who retains goods manufactured under an executory contract after notice of a difference in price and an offer by the seller to receive them back must be deemed to have accepted the goods at the advanced price, and is liable therefor. Stuart v. Manhattan Bath- Tub Co. 34 Misc. 165, 68 N. Y. Supp. 816. It is sufficient evidence of acceptance that a purchaser under a contract of ■waTTanty of the quality of a machine received and used it for a few days and then returned it, refusing to point out any defects or permit them to be remedied, although the contract required the purchaser to give notice of defects. Geiser Mfg. Co. v. Taylor, 55 App. Div. 638, 67 N. Y. Supp. 30. As to acceptance of goods or order therefor, see also supra, §§ 4-7; infra, § 12, b. 2 Caulkins v. Hellman, 47 N. Y. 449, 7 Am. Eep. 461. 3 Lytich V. Kampff, 69 Minn. 448, 72 N. W. 455. 62 BRIEF ON FACTS. 11. Acceptance of land patent. A land patent is deemed accepted without actual delivery, upon its being issued by tbe proper officer and recorded in the record of patents.' 1 United States v. Laam, 149 Fed. 581. 12. Weight, effect, and sufficiency. a. Acceptance of land dedicated to public use. — Acceptance of a street or highway may be proved by long public use,' by grading, working, and repairs,^ or by the acts and conduct ' of the public authorities recognizing and adopting the highway. And use by a comparatively small number of persons on foot, during a part only of the year, is sufficient, if such was the user to be anticipated by the dedicator.* Acceptance of land dedicated for park purposes is manifested by public use of the property, where there is no municipal body with authority to make formal acceptance.^ iHoldane v. Cold Spring, 21 N. Y. 474; McMannis v. Butler, 51 Barb. 436; Mayberry v. Standish, 56 Me. 342. While under the Iowa Code evidence of public use of certain land used for a highway is not competent to show title in the public by prescription, yet, where there is evidence tending to show a dedication, proof of use by the public is competent as tending to show an acceptance of the dedication. State v. Birmingham, 74 Iowa, 407, 38 N. W. 121. Evidence of use by the public has some tendency to prove an acceptance on the part of the town. Com. v. Coupe, 128 Mass. 63; Hayden v. Stone, 112 Mass. 346. Use of streets by the public for two or three weeks is not sufficient evidence of an acceptance. Laughlin v. Washington, 63 Iowa, 652, 19 N. W. 819. 2 Eckerson v. Haverstraw, 6 App. Div. 102, 39 N. Y. Supp. 635 ; Lake View v. LeBahn, 120 III. 92, 9 N. E. 269; State v. Eisele, 37 Minn. 256, 33 N. W. 785 ; Ross v. Thompson, 78 Ind. 90. Mere travel is not evidence of an acceptance of dedication of a highway, but it may be shown by the fact that public authorities took charge of and repaired it, and by public use. Forbes v. Balenseifer, 74 111. 183. Repairs made upon a dedicated highway by an officer not authorized by statute to bind the town do not show an acceptance of the way. State V. Bradbury, 40 Me. 154. 8 People V. Loehfclm, 102 N. Y. 1, 5 N. E. 783 ; Cook v. Harris, 61 N. Y. 448; Rees v. Chicago, 38 111. 322; Landis v. Hamilton, 77 Mo. 554; ACCEPTANCE, 63 Gentleman v. Soule, 32 111. 271, 83 Am. Dec. 264; Fisk v. Havana, 88 111. 208. Acceptance of a street is evidenced, either by the action of some civil au- thority representing the public, or by the purchase of lots by private persons based upon its dedication, or by public use which implies an acceptance. Sanford v. Meridian, 52 Miss. 383. 4 Phillips V. Stamford, 81 Conn. 408, 22 L.R.A.(N.S.) 1114, 71 Atl. 361. For other cases on effect of limited use of way by the public as an accept- ance of dedication, see note appended to the report of this case in 22 L.R.A.(N.S.) 1114. BMaywood Co. v. Maywood, 118 111. 61, 6 N. E. 866. h. To satisfy statute of frauds. — The receipt and acceptance of goods to satisfy the terms of the statute of frauds must be proved by clear and unequivocal acts on the part of the buyer.* 1 Johnson v. Cuttle, 105 Mass. 447, 7 Am. Rep. 545 ; Knight v. Mann. 118 Mass. 143; Prescott v. Locke, 51 N. H. 94, 12 Am. Rep. 55; Snow v. Warner, 10 Met. 132, 43 Am. Dec. 417; Denny v. Williams, 5 Allen, 1. There must be unequivocal acts. Words alone are insufficient. Shindler v. Houston, 1 N. Y. 261, 49 Am. Dec. 316; Bailey v. Ogden, 3 Johns. 421, 3 Am. Dec. 509; Ely v. Ormsby, 12 Barb. 570. Acts indicative of ownership, such as taking the keys of a building and making inventory, are sufficient evidence of acceptance to take the case out of the statute. Gray v. Davis, 10 N. Y. 285. Acceptance of a certificate, indorsed in blank by the seller, for unissued shares of stock, is sufficient to satisfy the statute of frauds if the transaction is within it. Meehan v. Sharp, 151 Mass. 564, 24 N. E. 907. But acceptance of a less amount of goods corresponding with the sample is insufficient to satisfy the statute in the absence of some unequivocal act expressive of an intent to accept. Remick v. Sandford, 120 Mass. 309; Davis V. Eastman, 1 Allen, 422. Or where the purchaser expressly states that he will be responsible only for the part received. Atherton v. Newhall, 123 Mass. 141, 25 Am. Rep. 47. That a bill of lading was, without the purchaser's knowledge, left with his clerk not authorized to receive it, does not show an acceptance, where the purchaser promptly returned it, and had previously notified the seller he would not receive the cargo. Quintard v. Bacon, 99 Mass. 185. Nor is acceptance of goods subsequently destroyed by fire shown by piling them apart and marking them with the purchaser's initials, where the latter's agent, who was to remove them, failed to do so. Rodgers v. Jones, 129 Mass. 420. That the consignee of lumber which he refused on arrival retained the in- 64 BEIEP ON FACTS. voice for over a month without replying to the consignor is not suffi- cient evidence of acceptance. Norman v. Phillips, 14 Mees. & W. 277. Acceptance of a wagon in an unsatisfactory condition when sold is not es- tablished where the seller delivered the wagon in an unfinished condi- tion without the purchaser's knowledge or authority. Brewster v. Tay- lor, 63 N. Y. 587. c. Of hill of exchange. — In the absence of rebutting testi- mony the fact that a person's signature appears upon a bill of exchange where the acceptor's signature is usually found is sufficient proof of acceptance if the bill is directed to him, or is without direction to anyone.^ 1 Walton V. Williams, 44 Ala. 348. [A.CCIDENT. 1. Presumptions and burden of proof. a. In general. b. Suicide or accident. 2. Documentary evidence; verdict of coroner's jury. 3. Direct testimony. 4. Opinions. 5. Declarations. 6. Relevancy. See also Care; Cause; Intent. For accident as ground of injunction against a judgment, see note to Mer- riman v. Walton, 30 L.E.A. 786. 1. Presumptions and burden of proof, a. In general. — The fact that other horses took fright at certain objects is not admissible to raise a presumption that the accident complained of happened, where it is claimed to be due to the fright of horses.'' Besides the ordinary burden of proof resting upon every litigant holding the affiripative, there is in a suit to reform a ACCIDENT. 65 ■writing on tte ground of accident the additional burden of overcoming the strong presumption created by the contract itself.'' And where plaintiff in an action on an insurance policy has proved that the insured had upon his person bruises and wounds, evidencing that he had been recently injured by ex- ternal violence; and, further, that such injuries caused his death, she has made out a prima facie case of death resulting from bodily injuries, "through external, violent, and accidental 1 Clevelajid, C. C. & I. R. Co. v. Wynant, 114 Ind. 525, 5 Am. St. Kep. 644, 17 N. E. 118. a Epstein v. State Ins. Co. 21 Or. 179, 27 Pac. 1045. S Cronkhite v. Travelers' Ins. Co. 75 Wis. 116, 17 Am. St. Hep. 184, 43 N. W. 731. See to the same effect, Jenkin v. Pacific Mut. L. Ins. Co. 131 Cal. 121, 63 Pac. 180; Burnham v. Interstate Casualty Co. 117 Mich. 142, 75 N. W. 445. i. Suicide or accident. — Self-destruction, the courts say, is contrary to the general conduct of mankind, and the love of existence is so firmly implanted in the human breast that the presumption of suicide is utterly abhorrent to the law and can- not be indulged in,^ and the burden of proving suicide is there- fore placed upon the one alleging it.' In some jurisdictions, where suicide is relied on as a defense in an action on an insurance policy, it seems that the burden ■of proof is not shifted by the fact that the verdict of a coroner's jury and the proofs of loss furnished by the beneficiary stated that the assured committed suicide.^ This has been said by high authority to be the law, even where the proofs of loss were introduced in evidence by the plaintiff.* In North Caro- lina, however, it is said that the statement that the assured died by his own hand, in the proofs of loss furnished the insurance company, was, if unexplained, an admission of suicide, and, when introduced in evidence in an action on a policy of life insurance, "at once shifted the burden of proof upon the plain- tiff."* i Travelers' Ins. Co. v. McConkey, 127 U. S. 661, 32 L. ed. 308, 8 Sup. Ct. Abb. Facts — 5. 66 BEIEF ON FACTS. Eep. 1360; Fidelity & C. Co. v. Love, 49 C. C. A. 602, 111 Fed. 773; National Union v. Thomas, 10 App. D. C. 277; Travelers' Ins. Co. v. Nitterhouse, 11 Ind. App. 155, 38 N. E. 1110; Mutual L. Ins. Co. v. Wiswell, 56 Kan. 765, 35 L.E.A. 258, 44 Pac. 996 ; Leman v. Manhattan L. Ins. Co. 46 La. Ann. 1189, 24 L.R.A. 589, 49 Am. St. Rep. 348, 15 So. 388; Cox v. Royal Tribe, 42 Or. 365, 60 L.R.A. 620, 95 Am. St. Rep. 752, 71 Pac. 73; Continental Ins. Co. v. Delpeuch, 82 Pa. 225; Brown v. Sun L. Ins. Co. — Tenn. — , 51 L.R.A. 252, 57 S. W. 415; Walcott V. Metropolitan L. Ins. Co. 64 Vt. 221, 33 Am. St. Rep. 923, 24 Atl. 992. 2 Leman v. Manhattan L. Ins. Co. 46 La. Ann. 1189, 24 L.R.A. 589, 49 Am. St. Rep. 348, 15 So. 388; Boynton v. Equitable Life Assur. Soc. 105 La. 202, 52 L.R.A. 687, 29 So. 490 ; Cox v. Royal Tribe, 42 Or. 365, 60 L.R.A. 620, 95 Am. St. Rep. 752, 71 Pac. 73; Anthony v. Mercantile Mut. Acci. Asso. 162 Mass. 354, 26 L.R.A. 406, 4 Am. St. Rep. 367, 38 N. E. 973. 3 Knights Templars & M. Life Indemnity Co. v. Crayton, 209 111. 550, 70 N. E. 1066; Sartell v. Royal Neighbors, 85 Minn. 369, 88 N. W. 985; Mutual L. Ins. Co. v. Hayward, — Tex. Civ. App. — , 27 S. W. 36. 4 Supreme Lidge, K. P. v. Beck, 36 C. C. A. 467, 94 Fed. 751, affirmed in 181 U. S. 49, 45 L. ed. 741, 21 Sup. Ct. Rep. 532. 6 Spruill V. Northwestern Mut. L. Ins. Co. 120 N. C. 146, 27 S. E. 39. 2. Documentary evidence; verdict of coroner's jury. In an action against a railroad company for negligently kill- ing one -while walking upon its track, the verdict of the coroner's jury, that deceased was accidentally run over by its train, is in- admissible.* 1 Memphis & C. R. Co. v. Womack, 84 Ala. 149, 4 So. 618. 3. Direct testimony. A witness cannot be asked whether an act by another than himself was accidental or done on purpose.* 1 State T. Rose; 32 La. Ann. 854 ; Stone v. Denny, 4 Met. 151. 4. Opinions. A witness, having testified about the location, size, and shape of a hole in the highway where an accident occurred, cannot be allowed to state whether he thinks, if he had been driving, the accident would have happened.* 1 Bunker v. Gouldsboro, 81 Me. 188, 16 Atl. 543. ACCOED AND SATISFACTION. 67 5. Declarations. Upon the question whether or not a member of a hunfing party met accidental death evidence of declarations of another member who had abandoned the hunt and sought assistance from a third, as to hearing a gun fired and a splash and seeing deceased fall from the boat in which he was, is admissible as part of the res gestae} Conversations of plaintiff in an action upon an insurance pol- icy, tending to show an intent, previously entertained by the plaintiff, to bring upon himself an injury of the character for which he seeks to recover, are admissible upon the question whether the injury was intentional or accidental.* 1 Travelers' Ins. Co. v. Sheppard, 85 Ga. 751, 12 S. E. 18. 8 Jitna L. Ins. Co. v. Vandecar, 30 C. C. A. 48, 57 U. S. App. 446, 86 Fed. 282. 6. Relevancy. Proof that stockmen by accident sometimes misplace Uie brand on their stock is admissible upon the question of guilty knowledge in a prosecution for the theft of a steer.* 1 Boren v. State, 23 Tex. App. 28, 4 S. W. 463. ACCORD AND SATISFACTION". 1. Burden of proof. 2. Presumption. 3. Parol evidence to vary writing. 4. Weight, effect, and sufficiency. As to vphat constitutes, see note to Jaffray v. Davis, 11 L.E.A. 710. Upon accord and satisfaction by part payment, see notes in 20 L.R,A. 785; 14 L.E.A.(N.S.) 443 and 27 L.E.A. (N.S.) 439. 1. Bnrden of proof. The burden of proof rests on the party alleging the accord and satisfaction,* and he must establish every necessary ele- ment of it by competent evidence,* and he has the burden to show the satisfaction as well as the accord.' 68 BEIEF ON FACTS. 1 Bahrenburg v. Conrad Schopp Fruit Co. 128 Mo. App. 526, 107 S. W. 440. z Barrett v. Kern, 141 Mo. App. 5, 121 S. W. 774. 3 Simmons v. Oullahan, 75 Cal. 508, 17 Pac. 543. 2. Fresumptions, The lapse of twenty years after actual damage suffered from the breach of a covenant against encumbrances raises a pre- sumption which, if not rebutted, will sustain a plea of accord and satisfaction.^ 1 Jenkins v. Hopkins, 9 Pick. 543. 3. Parol evidence to vary writing. Parol evidence is inadmissible to vary the agreement in- corporated in a receipt, to the effect that property was received in satisfaction of a claim.^ 1 Stevens v. Wiley, 165 Mass. 402, 43 N. E. 177. i. Weight, effect, and sufficiency. Proof of the discharge of a debt though not under seal, upon the payment of half the amount thereof by the check of a third person, is competent to show an accord and satisfaction.^ But an agreement entered into before the breach of a cove- nant against encumbrances is insufficient to establish an ac- cord and satisfaction of the subsequent breach.^ ISTor is the lapse of twenty years from the time of making a contract to be performed in fuiuro, of itself, evidence of a new contract averred to have been performed and pleaded as an accord and satisfaction of the original contract.^ To avoid the presumption of accord and satisfaction arising from the acceptance of money for claims for damages, the party may prove that the particular claim in question was unknown to him, and could not reasonably have been learned of by him at the time of receiving the payment.* 1 Guild V. Butler, 127 Mass. 386. ZBatchelder v. Sturgis, 3 Cush. 201. 3 Siboni v. Kirkman, 1 Mees. & W. 418, 2 Gale, 51, 1 Tyrw. & G. 777, 6 L. J. Exch. N. S. 212. 4 Scully V. Delamater, 28 Fed. 114. ACCOUNTS. 69 ACCOUNTS. I. PBOviNa Books or Account in Favob op One Intebested in Keeping. 1. Entries by the party himself. a,. Rule independent of statute, b. Statutory rule. 2. Entries by party who has since deceased. a. Common-law rule. b. Statutory rule. 3. Entries by party who has since become insane. 4. Entries in partnership books by absent or deceased partner. 5. Entries made by bookkeeper. a. Common-law rule. (1) When the bookkeeper is accessible. (2) When the bookkeeper is not accessible. (3) When the bookkeeper is insane. (4) When the bookkeeper is dead. b. Statutory rule. 6. Effect of statute making party competent witness for self. 7. Effect of statute prohibiting party from testifying. 8. Effect of statute of limitations. 9. Effect of amount in controversy. 10. Rule when the party keeps a clerk. a. Generally. b. Who are clerks. 11. Form and requisites as to book and entry. a. Generally. b. Alterations, erasures, and mutilations. c. Omission to aflBx price, weight, etc. 12. Entries; original or transferred. a. General rule. b. Entries transferred from memoranda. c. Ledgers. d. Balances. 13. Time for making the entries. a. General rule. b. Undated entries. c. Lump charges. 14. Regularity as to course of business. a. General rule. b. Entries relating to party's business. 15. Entries showing intent to charge. 70 BEIEF ON FACTS. 16. Authentication and correctness of books and entriea. a. Necessity generally. b. Oath of the party himself. c. Proof by customers. 17. Knowledge of the person making the entries. a. In general. b. Entries on information verified by informant. 18. Bringing home to adverse party. 19. What accounts are provable by books. a. Generally. b. Delivery of goods to third person. c. Professional services. d. Work done by servant. II. Explanations, Cobbections, and Disckeditino. 20. Accounts not exclusively the best evidence. 21. Photographs. 22. Secondary evidence not rebuttable. 23. Interpreting symbols. 24. Time of entries. 25. Explaining. a. In general. b. By expert. 26. Discrediting. a. By opinion. b. By specific errors. III. Peoving Account in Aid op Obal TestimohT. 27. Contemporaneous entries. 28. Written details of facts testified to. IV. Mutual Accounts. 29. Account rendered. 30. Pass books. 31. Conclusiveness. V. Proving against One Inteeested in Kebpino. 32. Authentication. 33. As admissions. 34. Agent's books. 35. Joint books. See also Abstbacts; Account Stated; Audit; Ceedit; Embezzlemewt; FOBGOTTEN FACT; HANDWKITING ; NEGATIVE; PAYMENT. As to the use of a party's books of account as evidence in his favor gener- ally, see note to Smith v. Smith, 52 L.E.A. 545. And as to what may be proved by books of account, see note to Hall v. Wood, 52 L.K.A. 689. Admissibility of account books in evidence in case of money loaned or payments made by party whose books are offered, see note in 2 L.K.A. (N.S.) 401. ACCOUNTS. 71 I. Proving Books of Account in Favoe of One Interested IN Keeping. 1. Entries by the party himself. a. Rule independent of statute. — -The rule that a party liti- gant may, independent of any statute expressly authorizing him so to do, give in evidence, in support of his claim of an account for goods sold and delivered, or work done and mate- rials furnished, his books of account the entries in which have been made by himself, either with his suppletory oath, or ac- companied by the proper preliminary proof, as required by the rule in the particular jurisdiction, has been so long acquiesced in, with the possible exception of one or two states noted be- low,^ that its authority can hardly now be doubted.^ 1 In Maryland and Louisiana such books are not admissible. Owings v. Low, 5 Gill & J. 134; Stallings v. Gottschalk, 77 Md. 429, 26 Atl. 524; Ward V. Leitch, 30 Md. 326; Cavelier v. Collins, 3 Mart. 188; Whitti- kam V. Swain, 9 La. Ann. 122; Smith v. Harrathy, 5 Mart. N. S. 320; Johnston v. Breedlove, 2 Mart. N. S. 508; Kendall v. Bean, 12 Rob. 407. The court, however, in the case last cited, permitted witnesses who had made entries of matters within their personal knowledge to refer to such entries to refresh their memories. So also, in Flower v. Downs, 6 La. Ann. 539. But a witness has no right to refresh his memory by reference to books, where it does not appear that the entries were made by him. Par- goud V. Guice, 6 La. 77, 25 Am. Dec. 202. The reception in evidence without objection, of one of the party's books offered in his own behalf, is no reason for permitting him to introduce another book when objected to. Lyons v. Teal, 28 La. Ann. 592. So, the books of an insolvent, or testimony as to their contents, unaided by any other evidence, cannot be accepted as proof to establish a claim of one creditor against an opposition of other creditors to a syndic's account. Calder v. Their Creditors, 47 La. Ann. 1538, 18 So. 520. Compare New Orleans Canal & Bkg. Co. v. Leeds & Co. 49 La. Ann. 123, 21 So. 168, holding otherwise where there is nothing suspicious in the appearance of the books, or in the manner in which they are kept, or in the entries as made, and they are supported by ample cor- roborative proof. ZDismukes v. Tolson, 67 Ala. 386; Moody v. Roberts, 41 Miss. 74 (the first case in Mississippi holding such books admissible and overrul- ing previous cases to the contrary) ; Watrous v. Cunningham, 71 Cal. 30, 11 Pae. 811; Vosburgh v. Thayer, 12 Johns. 461 (leading case); T2 BRIEF ON FACTS. Butler V. Cornwall Iron Co. 22 Conn. 335; Underwood v. Parrott, 2 Tex. 166; Cargill v. Atwood, 18 R. I. 303, 27 Atl. 214; Baldridge v. Penland, 68 Tex. 441, 4 S. W. 565 ; Boiling v. Fannin, 97 Ala. 619, 12 So. 59; Anchor Mill. Co. v. Walsh, 108 Mo. 277, 32 Am. St. Rep. 600, 18 S. W. 904 (the first case in Missouri settling the rule as stated, and in effect overruling previous cases to the contrary) ; Witherell v. Swan, 32 Me. 247; Holmes v. Harden, 12 Pick. 169. In Arkansas it has been held that entries in a merchant's book, made by himself, are not admissible in his own favor, even though he offer to verify the books by his own oath. Burr v. Byers, 10 Ark. 398, 52 Am. Dec. 239. Compare Stanley v. Wilkerson, 63 Ark. 556, 39 S. W. 1043, in which the court seems to incline to the adoption of the rule as stated in the text. In Indiana the rule does not seem to be settled. Thus, in Harrison v. La- gow, 1 Blackf. 307, books offered by the plaintiff were held inadmissi- ble because he had not proved them to be his. In De Camp v. Vandargrift, 4 Blackf. 272, a, blacksmith's book was ex- cluded. But in Wilber v. Scherer, 13 Ind. App. 428, 41 N. E. 837, it was held that permitting plaintiff to read to the jury from his book the various items of the account to which he had just testified, and aa stated in his bill of particulars, was, if error at all, harmless, inasmuch as its only effect was to repeat his testimony, and it appeared that the defendant was allowed to testify fully to his version of the matter, which the jury had in part adopted. A book kept by an assignee of an insolvent debtor was held in Rush v. Hance, 3 N. J. L. 860, to be competent evidence for the assignee in an action to recover for goods sold after the assignment and charged by him on the book. And in Bear v. Trexler, 3 W. N. C. 214, it was held that the books of plain- tiff's assignor, who had been absent from the country for seven years, and could not be found, were admissible on proof of the assignor's handwriting. To render a party's book admissible for himself within the rule above, and supported by his oath alone, he must awear to a delivery of the articles charged. Dwinel v. Pottle, 31 Me. 167. A physician's diary containing original entries of professional visits is admissible in an action to recover therefor upon proof of his employ- ment, and of the fact that he keeps correct books of account, and that his debtors have settled with him from them and found them correct. Knight V. Cunnington, 6 Hun, 100. The fact of attendance on the defendant or his family can ordinarily be proved by other persons, and some attendance ought to be shown; but proof of a single attendance two years previous to the entry in ques- tion does not satisfy the rule. Morrill v. Whitehead, 4 E. D. Smith, 239. ACCOUNTS, rr But in Mississippi it is not necessary that a physician suing an estate to recover for services rendered to the decedent should prove, except by his books, that he ever attended the intestate in his lifetime. Bookout V. Shannon, 59 Mass. 378. i. Statutory rule. — ^Many of the states have statutes express- ly providing for the admission of a party's books of account in his own favor. ^ These statutes all expressly recognize the ad- missibility of the books on a proper showing, to be made as re- quired by the statutes themselves ; " but they vary somewhat in form and language, and the way in which the admissibility of the books is recognized, and in which the terms of the statute are made applicable.* But they all attain the same result, and that is that if the party desiring to introduce his books in evidence in his own behalf accompanies the offer of the books with the proof required by the statute under which the offer is made, they are competent evidence for him.* 1 An Alabama statute (Code, § 1808) provides that the original entries in the books of a physician are evidence for him in all actions for the re- covery of his medical services, that the services were rendered, unless the defendant in open court deny on oath the truth of such entries ; but the physician is required to prove the value of such service. And under this statute his books are evidence of the items of his account for medicines administered and furnished to his patients in the course of his business, as well as of his active services. Kichardsou v. Dor- man, 28 Ala. 679. And proof that the original entries were in the physician's handwriting was said, in Halliday v. Butt, 40 Ala. 178, to be prima facie sufficient proof of their identity to admit them under this statute. But after the exclusion of such a book, necessitated by the defendant's de- nial of their truth in open court upon oath, as provided by the statute, the latter has no right to testify in his own behalf as to which entries are correct and which incorrect. Weaver v. Morgan, 49 Ala. 142. 2 The various requisites are substantially the same as those required by the common-law rule, and are noted infra this title in their appropri- ate places. See §§ 11-17. 8 Thus, in some of the states the statutes are enacted as independent stat- utes expressly for the purpose of allowing such evidence ; whilst others are a part of, and embraced in, the statutes prohibiting a party from testifying for himself when his adversary is the personal representa- tive of a deceased person, or is otherwise incapacitated, and form an exception to that prohibitive clause, — that is to say, the party offering his books is competent to make the proof necessary to their introduc- 74 BEIEF OJT FACTS. tion in evidence, although his adversary be incapacitated as above, and his books are then evidence for him. Compare the various statutes for their provisions in this respect. For cases, see the succeeding notes of this section. See also § 17, infra. 4 Such statutes of both classes are to be found in the states from which the following cases and illustrations are cited as applying the terms of the. statutes to the books under consideration: Lovelock v. Gregg, 14 Colo. 53, 23 Pac. 86; Hooker v. Johnson, 6 Fla. 730; Ailing v. Brazee, 27 111. App. 595; Moore v. Morris, 1 Penn. (Del.) 412, 41 Atl. 889; Talbotton E. Co. V. Gibson, 106 Ga. 229, 32 S. E. 151; Martin v. Scott, 12 Neb. 42, 10 N. W. 532 ; Shaffer v. McCrackin, 90 Iowa, 578, 48 Am. St. Eep. 465, 58 N. W. 910; Hay v. Peterson, 6 Wyo. 419, 34 L.R.A. 581, 45 Pac. 1073; Webber v. Webber, 79 N. C. 572; Colbert v. Piercy, 25 N. C. (3 Ired. L.) 77; Thomson v. Porter, 4 Strobh. Eq. 58, 53 Am. Dec. 653; Foster v. Sinkler, 1 Bay, 40; Clark v. Howard, 10 Yerg. 250; Irwin V. Jordan, 7 Humph. 167; Branch v. Dawson, 36 Minn. 193, 30 N. W. 545; Callender v. Colegrove, 17 Conn. 1. Previous to the Illinois and Michigan statutes, books were still admissible. Boyer v. Sweet, 3 Seam. 120; Jackson v. Evans, 8 Mich. 476. The Illinois statute did not change the character of the book, but merely added to and enlarged the provisions of the rule as it previously ex- isted, and changed the character of the evidence necessary to its ad- mission. House V. Beak, 141 111. 290, 33 Am. St. Rep. 307, 30 N. E. 1065; Brooks v. Funk, 85 111. App. 631; Taliaferro v. Ives, 51 111. 247. In Connecticut, in actions of book debt, books containing the daily ac- counts of the party's business are admissible by express statute (Gen. Stat. p. 471, § 1041) ; and in actions of assumpsit for goods sold the same rule applies, book debt and assumpsit being concurrent remedies in all cases where book debt will lie. Smith v. Law, 47 Conn. 431. See also Plumb v. Curtis, 66 Conn. 154, 33 Atl. 998, holding § 31 of the practice act, making the books admissible in all actions for the recovery of a book debt to be a legitimate exercise of the legislative power to give greater effect to any particular kind of evidence than it possessed at common law. The New Mexico statute was held, in Byerts v. Eobinson, 9 N. M. 427, 54 Pac. 932, to supersede the common-law rule, and must be complied with before the books can be admitted. But the statute cannot be invoked when the books are clearly not shown to be within its terms. Price v. Garland, 3 N. M. 505, 6 Pac. 472. And see F. H. Hill Co. v. Sommer, 55 111. App. 345, admitting a party's books vipon what the court deemed sufficient foundation upon common- law principles, without reference to any statute. The Georgia statute substantially embodies the rule as it existed in that state prior to the statute. Taylor v. Tucker, 1 Ga. 231. Under the Georgia statute of 1843, allowing the books of any regular ACCOUNTS. 75 craftsman to go to the jury in proof of open acooujits, books kept in any occupation requiring such books to be kept are admissible for the same purpose and to the same extent as merchants' and shop- keepers' books. Ganahl v. Shore, 24 Ga. 17. But books of others than those doing a regular business and keeping daily entries thereof, who are not merchants, shopkeepers, physicians, or blacksmiths, are not admissible. Bass v. Gobert, 113 Ga. 262, 38 S. E. 834. A loan agent's register, containing merely a record of loans negotiated by him, and their final disposition, is not a book of accounts within' the meaning of the Iowa statute. Security Co. v. Graybeal, 85 Iowa, 543, 39 Am. St. Rep. 311, 52 N. W. 497; United States Bank v. Burson, 90 Iowa, 191, 57 N. W. 705. Nor is a book purporting to be a record of notes owned by the party ad- missible to prove that at a certain time he held a note against an- other. Kassing v. Ordway, 100 Iowa, 611, 69 N. W. 1013. Nor is a loan and collection register a book of accounts under the Nebraska statute. Labaree v. Klosterman, 33 Neb. 150, 49 N. W. 1102. Nor is a register of bills receivable kept by a bank or banker. Martin v. Scott, 12 Neb. 42, 10 N. W. 532. Nor is a check book from which checks are taken, containing on a stub or margin memoranda of the name of the payee, amount, date, etc., an account book under the Ohio statute. Watts v. Shewell, 31 Ohio St. 331. The Vermont statute, allowing items of account to be adjusted in an action of book account, does not allow the adjustment of items of book ac- count in an action of account. Cilley v. Tenny, 31 Vt. 401. But it does not deprive the party offering the book of his common-law remedy. Burnham v. Adams, 5 Vt. 313. 2. Entries by party who has since deceased. a. Common-law rule. — It has long been the practice in most of the states, even although the practice is not sanctioned by an express statute, to admit in evidence in favor of the estate of a deceased person the decedent's books of account upon proof that they were his books and of his handwriting, whenever the books would have been evidence for him if living.^ 1 Odell v. Culbert, 9 Watts & S. 66, 42 Am. Dec. 317 ; McLellan v. Crofton, 6 Me. 307; Buckley v. Buckley, 12 Nev. 423, 16 Nev. 180. Contra: Mason v. Wedderspoon, 43 Hun, 20. And it is not necessary to accompany them with any evidence as to the time and manner in which the entries were made. Hoover v. Gehr 62 Pa. 136. And evidence subsequently offered, as to the time wh^ the entries were Y6 BEIEF ON r.^CTS. made is to be referred, with the books, to the jury, for them, to deter- mine whether or not the books are of original entry. Van Swearingen V. Harris, 1 Watts & S. 356. In New Hampshire they are admitted, though supported only by the admin- istrator's suppletory oath. Dodge v. Morse, 3 N. H. 232. But testimony of the administrator that the books came into his hands as administrator as the intestate's books of original entry, and that he believes the debt to be unpaid, is not sufficient to warrant their admis- sion without proof that the entries were in the intestate's handwriting. Eobinson v. Dibble, 17 Fla. 457. Compare Hoover v. Gehr, 62 Pa. 136, in which the executor testified that the book admitted was the testa- tor's book of original entries, was found at the testator's house, and that the entries were in his handwriting. But a book kept by a testator is not admissible for his executors unless it contains the registration of some fact which is relevant to the issue, made by him in the course of his business or duty, and as to which he would at the time have been a competent witness. Avery v. Avery, 49 Ala. 193. In Ohio it is held that the book is not of itself competent for the personal representative; but that proof that the decedent kept regular books, and of some of the items, and that the clerk was not a competent wit- ness, authorizes the court, at its discretion, to admit the book. Van Home V. Brady, Wright (Ohio) 451. See also Cram v. Spear, 8 Ohio, 494. In Rouyer v. Miller, 16 Ind. App. 519, 44 N. E. 51, 45 N. E. 674, it was held that a page of a decedent's account book is not admissible for his administrator, where there is no proof that the entries were in his handwriting, or when they were made, — especially when the page in question does not have the appearance of being an account, but is rather a memorandum. But a decedent's memorandum book, containing the items of an account, is prima facie admissible for the administratrix, where there is evi- dence that the entries were made at the time of the respective trans- actions to which they refer. Lunsford v. Butler, 102 Ala. 403, 15 So. 239. In Missouri some of the earlier cases have held that neither the merchant's death, nor the statute making parties competent witnesses in their own behalf, changed the rule excluding a party's books as evidence for him- self so as to admit them in favor of his legal representatives after his death. Hensgen v. Mullally, 23 Mo. App. 613. But it is by no means certain that the courts would still so hold in view of Anchor Mill. Co. V. Walsh, 108 Mo. 277, 32 Am. St. Rep. 600, 18 S. W. 904. So, in New York it has been held that an entry made by a party in his own books is not made competent in his favor by the fact that he is since deceased. Mason v. Wedderspoon, 43 Hun, 20. And in Case v. Potter, 8 Johns. 211, an action by an administrator for ACCOUJSTS. 77 money loaned, it was held that the book of original entries in the in- testate's handwriting is not evidence for the plaintiff; but if intro- duced without objection it might be considered by the jury in connec- tion with other circumstances. But in Eexford v. Comstock, 3 N. Y. Supp. 876, it was held that entries of legal services and of disbursements incident thereto, in boolis regu- larly kept by a lawyer in his business, made by himself and hia part- ner, both of whom died before the person for whom the services were rendered, are competent, where the performance of any of the services charged for is proved, and there is proof that the books were the de- cedents' books, and proof by clients who had settled with them that they kept correct books. h. Statutory rule. — In some of the states there are statutes expressly providing for the admission of books of account of a deceased person as evidence for his personal representative.^ lAs in Connecticut (Gen. Stat. § 1094). Setchel v. Keigwin, 57 Conn. 473, 18 Atl. 594; Kinney v. United States, 54 Fed. 313; Douglas v. Chapin, 26 Conn. 76. And it is not necessary that the entries refer to the matter at issue; it is enough if they can be shown so to do by other evidence. Peck v. Pierce, 63 Conn. 310, 28 Atl. 524. Again, an Arkansas statute (Dig. § 2893) makes the book of a deceased person, when proved to be regularly and fairly kept, evidence in favor of his executor or administrator. But in Mathews v. Sanders, 15 Ark. 255, the court excluded a detached piece of paper having on it items of the services rendered, as not coming within the terms of the statute, notwithstanding there was supporting proof required by the statute. In Callaway v. McMillian, 11 Heisk. 557, a private memorandum book was excluded as not coming within the terms of the Tennessee statute. Proof that the books were the only books kept by the decedent; that settlements had been made with many clients who had found them correct, — was held, in Patrick v. Jack, 82 111. 81, to be a suflScient com- pliance with the Illinois statute to warrant their admission against one who, on examination before any controversy arose, made no objec- tion. 3. Entries by party who has since become insane. It is error to reject a book of original entries of an insane person, offered by his guardian and proved to be in his hand- writing, in connection with the guardian's testimony that the hook came to him as the genuine and only book of the insane person, and that to the best of his knowledge and belief the 78 BEIEP ON PACTS. entries were original and contemporaneous with the transactions entered, and that the charges were unpaid, on the ground that it is inadmissible without the oath of the insane person.^ 1 Holbrook v. Gay, 6 Cush. 215. 4. Entries in partnership books by absent or deceased partner. The books of original entries of a partnership, kept by one of the partners who is at the time of the trial a nonresident of the state, are admissible on proof of the nonresidence and of the handwriting of the absent partner ; and the fact that the book- keeper was a copartner makes no difference.^ 1 Alter V. Berghaus, 8 Watts, 77. "The same necessity therefore existed for receiving the books in evidence that would have existed . . . [had the absent partner] been dead at the time of trial." New Haven & N. Co. v. Goodwin, 42 Conn. 230. It is not necessary that the copartner by whom the entries were made be present and testify to their correctness; his copartner's suppletory oath is enough. Butler v. Cornwall Iron Co. 22 Conn. 335. So, also, in Minnesota under the statute. Webb v. Miehener, 32 Minn. 48, 19 N. W. 83. Walter v. Parkham, 3 McCord, 295, holds that the copartner present is not competent t6 prove the entries as having been made by his copart- ner on the ground of the latter's absence from the state, unless it be clearly proved that he is out of the state. Proof of the entries as being in the handwriting of a deceased copartner, and of their being made in the regular and usual course of business, was held sufficient in Thomson v. Porter, 4 Strobh. Eq. 58, 53 Am. Dec. 653, to raise the presumption that the goods were sold and delivered to the party charged. But in Romer v. Jaecksch, 39 Md. 585, holds that entries made in the course of business, by a deceased partner, are not evidence for the surviving partner in a suit by him against a debtor of the firm. So held, also, in Burr v. Byers, 10 Ark. 398, 52 Am. Dec. 239, as to en- tries which were made by one who was held out to, and regarded by, the public as a partner. 5. Entries made by bookkeeper. a. Common-law rule — (1) When the hoohheeper is acces- sible. — The rule at common law as to entries which have been made by a person other than the party himself is that entries so made in the ordinary course of business, by a person whose ACCOUNTS. 79 duty it was to make them, contemporaneously with the trans- actions recorded so as to form part of the res gestae, are com- petent where the entries are proved by the person who made them, if he is alive and can be produced.^ But not when the person who made them is, although accessible, not called to verify them, 2 1 Houae v. Beak, 141 111. 290, 33 Am. St. Rep. 307, 30 N. B. 1065 ; Burn- ham V. Adams, 5 Vt. 313; Tunno v. Rogers, 1 Bay, 480; Burnham v. Chandler, 15 Tex. 441; Dialogue v. Hoven, 7 Pa. 327; Burke v. Wolfe, 6 Jones & S. 263. But in Maine a book of a party who cannot write, kept regularly every day by his wife under his direction, is not admissible for him in con- nection with his suppletory oath. Luce v. Doane, 38 Me. 478. So, entries in account books of a bank are made competent evidence against a depositor, customer, or officer (Humphrey v. People, 18 Hun, 393, [to prove embezzlement]. See also Re Wineham Shipbuilding, Boiler & Salt Co. 26 Moak, Eng. Rep. 152, note, citing other cases) ; by pro- ducing the clerk who made the entries, he testifying to the trans- actions (Burke v. Wolfe, 6 Jones & S. 263, 268); or testifying that it was his uniform custom to make entries at the time of the trans- action, and that he has no doubt the entry now offered was truly made. Bank of Monroe v. Culver, 2 Hill, 531. Without such evidence they are not competent (White v. Ambler, 8 N. Y. 170), unless the party against whom they are adduced is a stockholder or officer. It is error to receive them upon testimony of other officers or clerks of the bank who have not personal knowledge of the transactions. Ocean Nat. Bank v. Carll, 55 N. Y. 440. But upon the issue whether moneys paid to one named by the depositor as her agent were chargeable to her, the bank upon examination of its treasurer can produce the bank ledger and ask him to state what the account therein contained respecting the items drawn out and a bal- ance redeposited by the agent in his own name for the purpose of show- ing the manner in which the account was kept and the items and dates. Wilcox V. Onondaga County Sav. Bank, 40 Hun, 297. aSkipworth v. Deyell, 83 Hun, 307, 31 N. Y. Supp. 918; Burnham v. Chand- ler, 15 Tex. 441 ; Ford v. St. Louis, K. & N. W. R. Co. 54 Iowa, 723 ; Shipman v. Glynn, 31 App. Div. 425, 52 N. Y. Supp. 691 ; Bartholomew v. Karwell, 41 Conn. 107; Sterrett v. Bull, 1 Binn. 237; Merrill v. Ithaca & 0. R. Co. 16 Wend. 586, 30 Am. Dec. 130. (2) When the hooTckeeper is not accessible. — The general rule as to entries which were made by a bookkeeper regularly 80 BEIEF ON FACTS. employed as such, who is at the time of the trial beyond the jurisdiction of the court, is that the entries are, if otherwise unobjectionable within the rules shown in the preceding section, admissible upon proof of the fact of the absence of the book- keeper and of his handwriting.^ IBurnham v. Chandler, 15 Tex. 441; Elms v. Chevis, 2 McCord, L. 349; Boiling V. Fannin, 97 Ala. 619, 12 So. 59. And it was so held in Hay v. Kramer, 2 Watts & S. 137, although his absence was not conclusively shown, and, if absent, he was only so temporarily. So, also, when he is beyond the reach of the process of the court, and not accessible to a commission. Heiskell v. Rollins, 82 Md. 14, 51 Am. St. Eep. 455, 33 Atl. 263. Or where he is a nonresident of the state, or is unable to be produced as a witness for any other good reason. Vlnal v. Gilman, 21 W. Va. 301, 45 Am. Rep. 562. And entries proved to be in the writing of a clerk, and to have been made in the regular course of business, were held admissible, in Reynolds v. Manning, 15 Md. 510, without proof of his death, when he was a for- eigner by birth, and remained in this country but a few years and then returned home, and when last heard from, more than three years before, was in Australia. In North Carolina it has been held that entries by a, clerk are not compe- tent as against the party charged. Sloan v. McDowell, 75 N. C. 29. And in Brewster v. Doane, 2 Hill, 537, it was held that entries by a clerk cannot be given in evidence merely on the ground that the clerk is beyond the jurisdiction of the court, but may upon proof of his death. (3) When the hookkeeper is insane. — Where the clerk who made the entries is insane, the book is admissible upon proof of his handwriting.^ 1 Union Bank v. Knapp, 3 Pick. 96, 15 Am. Dec. 181; Boiling v. Fannin, 97 Ala. 619, 12 So. 59 (dictum-) . (4) When the hoohheeper is dead. — If the entries were made by a bookkeeper who has since deceased, the books are admis- sible upon proof of his death and of his handwriting.^ 1 Livingston v. Tyler, 14 Conn. 493; Stroud v. Tilton, 3 Keyes, 139; Lewis V. Norton, 1 Wash. (Va.) 76; Elliott v. Dyche, 80 Ala. 376; Price v. Earl of Torrington, 1 Salk, 285; Bacon v. Vaughn, 34 Vt. 73; Ocean Nat. Bank v. Carll, 9 Hun, 239 (bank books). ACCOUNTS. 81 h. Statutory rule. — The common-law rule stated supra, and illustrated in the cases cited, is the rule substantially recog- nized by, and embodied in, the statutes of several of the states. iThus, in Colorado by statute (Mills's Anno. Stat. § 4817), where the en- tries were made by third persons not present at the trial, it must be shown that the person who made them is either dead, or a nonresident of the state, and if the latter, that he was disinterested when making them, and that the entries were made in the usual course of trade and of his duty or employment; there must also be proof of his hand- writing. Charles v. Ballin, 4 Colo. App. 186, 35 Pac. 279; Farrington v. Tucker, 6 Colo. 557'. So, also, under the Iowa statute, books are receivable in evidence as to entries properly authenticated, but not as to those not so authenticated by the bookkeepers. Harriott v. Kersey, 69 Iowa, 111, 28 N. "W. 468. The Illinois statute governing the admission of books of account does not apply to books kept by a clerk who is living in the state and able to testify to their correctness. The books are still admissible, but the party must make the preliminary proof required by the rule before the passage of the statute. House v. Beak, 141 111. 290, 33 Am. St. Eep. 307, 30 N. B. 1065. In Nebraska the entries must be verified by the bookkeeper, to the effect that he believes them just and true, or a sufficient reason must be given why such verification is not made. Volker v. First Nat. Bank, 26 Neb. 602, 42 N. W. 732; Holland v. Coramercial Bank, 22 Neb. 571, 36 N. W. 112. 6. Effect of statute making party competent witness for self. It is very generally held that the statute making parties com- petent witnesses to testify in their own behalf does not deprive them of the right to introduce their books in evidence.^ 1 Stroud v. Tilton, 3 Keyes, 139; Swain v. Cheney, 41 N. H. 232; Tomlinaon v. Borst, 30 Barb. 42 ; Taggart v. Fox, 11 Baly, 159 ; Bushnell v. Simp- son, 119 Cal. 658, 51 Pac. 1080; Nichols v. Haynes, 78 Pa. 174. But the rule in Maryland excluding the books is not changed by such » statute. Eomer v. Jaecksoh, 39 Md. 585. 7. Effect of statute prohibiting party from testifying. Even in the absence of any exemption of books of account from the statute prohibiting a party from testifying when his adversary is an executor or administrator, or insane person,^ it is generally held that such statutes do not affect the common- Abb. Facts — 6. 82 BEIEF ON PACTS. law right of the party to introduce his books when otherwise unobjectionable.^ 1 As stated supra in § 4, many of the statutes contain such an express exemption. Under the Vermont statute (Gten. Stat. chap. 36, § 24), in actions of book account, and when the matter at issue is proper matter of book ac- count, the party living may be a witness so far as to prove in whose handwriting the charges are, and when made, and no further. Hunter V. Kittredge, 41 Vt. 359. But not when the subject-matter of the en- try is a mere memorandum of the fact, and not a proper itein of book charge. Jewett v. Winship, 42 Vt. 204. 2 Snell V. Parsons, 59 N. H. 521 ; Young v. Luce, 50 N. Y. S. R. 253, 21 N. Y. Supp. 225; Bookout v. Shannon, 59 Miss. 378; Ailing v. Brazee, 27 111. App. 595; Kilbourn v. Anderson, 77 Iowa, 501, 42 N. W. 431. 8. Effect of statute of limitations. The fact that the account may be barred by the statute of limitations does not affect the admissibility of the books.^ 1 Lamb v. Hart, 1 Brev. 105 ; McLennan v. Bank of California, 87 Cal. 569, 25 Pae. 760 ; Thorn v. Moore, 21 Iowa, 285. Compare Butterweck's Es- tate, 4 Pa. Dist. E. 563. 9. Effect of amount in controversy. Under the ISTorth Carolina book-debt law a plaintiff may prove by his book and own oath a balance due to him of $60 or under.'' But not where the amount exceeds that sum.^ The limitation as to the amount for which a book is evidence of an account under the Tennessee statute ' applies to the plain- tiff's book as well when it is offered by an executor or adminis- trator as when it is offered by a living plaintiff.* 1 So held, although the whole account was originally for more than $60, but was reduced by credits below that amount. McWilliams v. Cosby, 26 N. C. (4 Ired. L.) 110.' That the amount of the account in an action under the book-debt law can- not be reduced by credits so as to give jurisdiction to the justice, see Waldo V. Jolly, 49 N. C. (4 Jones, L.) 173. 2 Bland v. Warren, 65 N. C. 372. 3 The Tennessee statute limits the amount provable to articles of $75 in value. Cave v. Baskett, 3 Humph. 340; Johnson v. Price, 3 Head, 549. 4 Perkins v. Moss, 3 Heisk. 671. ACConiirTS. 83 10. Rule when the party keeps a clerk. a. Generally. — Whether or uot the admissibility of a party's book is dependent upon his proving that he kept no clerk, and whether his books are to be excluded if he did keep one, unless his absence is accounted for, are questions as to which there is conflict.* 1 That the admissihility of the book is so affected, see Vosburgh v. Thayer, 12 Johns. 461; Underwood v. Parrott, 2 Tex. 168; Watrous v. Cunning- ham, 71 Cal. 30, 11 Pac. 811; Townsend v. Coleman, 18 Tex. 418. And by statute in some states, Talbotton R. Co. v. Gibson, 106 Ga. 229, 32 S. E. 151. That it is not so affected, see Mitchell v. Belknap, 23 Me. 475. Compare Kent V. Garvin, 1 Gray, 148. h. Who are clerks. — The rule excluding the book when the party kept a clerk refers to an employee having something to do with, and a general knowledge of, the business of his em- ployer in reference to the goods sold or work done, and not to a bookkeeper with little means of personal knowledge as to the transactions, or slight information in relation thereto ex- cept that derived from others.* 1 McGoldrick v. Traphagan, 88 N. Y. 334 ; Smith v. Smith, 52 L.R.A. 545, with note. A mere employee who tends to sales no further than merely delivering goods and keeping a memorandum of the delivery for a temporary pur- pose is not a clerk within the rule. Sickles v. Mather, 20 Wend. 72, 32 Am. Dee. 521; Jackson v. Evans, 8 Mich. 476. The books are not to be excluded because the parties at times employed per- sons to help about the stores for a few days or months, who at times made entries in the books, where all the entries were made under the general supervision of the parties, with their knowledge and at their suggestion and usually in their presence, and those made by the per- sons employed were proved to be correct. Atwood v. Barney, 80 Hun, 1, 29 N. Y. Supp. 810. One whose sole business is to keep books is not a clerk within the rule which excludes books of account of a party who keeps a clerk. Hurley V. Macey, 94 App. Div. 9, 87 N. Y. Supp. 924. 11. Form and requisites as to book and entry. a. Generally. — The construction or form of the book, or the material used, is not a matter of importance if it be capable of 84 BRIEF ON PACTS. perpetuating a record of events, and the charges therein are fairly and honestly made in the regular course of business and at or about the time of the transaction to which they refer.* The entries should, however, be precise and definite.* ' It is no valid objection to a book otherwise unobjectionable that the entries were made with a lead pencil.^ ISTor is a physician's book objectionable because it contains well-known and usual abbreviations.* 1 Hooper v. Taylor, 39 Me. 224; Moody v. Roberts, 41 Miss. 74; Bookout V. Shannon, 59 Miss. 378; Cummings v. Nichols, 13 N. H. 420, 38 Am. Dec. 501. Thus, several scraps or sheets of paper have heen admitted as a book when the proof is otherwise sufficient. Smith v. Smith, 4 Harr. ( Del. ) 532; Taylor v. Tucker, 1 Ga. 231; Bell v. McLeran, 3 Vt. 185. Com- pare Hay V. Peterson, 6 Wyo. 419, 34 L.R.A. 581, 46 Pac. 107, exclud- ing memorandum upon date on a calendar as not sufficient; and Barber V. Bennett, 58 Vt. 476, 56 Am. Rep. 565, 4 Atl. 231, excluding a loose paper for the same reason. And in Thomas v. McKelvey, 13 Serg. & R. 126, loose papers were excluded because on their face they were not worthy of the name of an account regularly kept. Entries made in the regular course of business, according to the practice of the bookkeeper, may ( it seems ) be regarded like entries in the books for the purpose of receiving them (in connection with his oath), in his own favor as part of the res gestce. Re Tully, 20 Fed. 812 ( dictum in discussing whether falsifying such slips is forgery, — citing cases ) . So, also, a, notched stick has been admitted. Rowland v. Burton, 2 Harr. (Del.) 288. So also has a shingle. Kend-11 v. Field, 14 Me. 30, 30 Am. Dec. 728. 8 Richardson v. Emery, 23 N. H. 220. They need not be such as to be understood by the general public if they are intelligible to persons in the business; but where they are not in- telligble to the common understanding, it would seem to be necessary to support them by other evidence as to their meaning and character. Re Fulton, 178 Pa. 78, 35 L.R.A. 133, 35 Atl. 880. 3 True V. Bryant, 32 N. H. 241; Gibson v. Bailey, 13 Met. 537; Hill v. Scott, 12 Pa. 168. 4 Bay V. Cook, 22 N. J. L. 343; Cummings v. Nichols, 13 N. H. 420, 38 Am. Dec. 501; Bookout v. Shannon, 59 Miss. 378. Contra: Kelley's Es- tate, 5 Pa. Dist. R. 263, as to the use of hieroglyphics. h. Alterations, erasures , and mutilations. — A book material- ly erased and altered cannot go to the jury unless the party ACCOUNTS. 85 offering it explains the erasures or alterations.* Otherwise, however, of immaterial alterations.' And a book which has been mutilated by cutting out the leaA'es on which the account in suit had been should not be re- ceived,^ unless explained.* 1 Churchman v. Smith, 6 Whart. 146, 36 Am. Dee. 211; Campbell v. Hol- land, 22 Neb. 587, 35 N. W. 871; Eastman v. Moulton, 3 N. H. 156; Moody V. Roberts, 41 Mass. 74; Cogswell v. Dolliver, 2 Mass. 217, 3 Am. Dec. 45; State v. Collins, 1 Marv. (Del.) 536, 41 Atl. 144; Schett- ler V. Jones, 20 Wis. 412. That a book entry is open to explanation, see Freer v. Budington, 6 N. Y. S. E. 319. Contra: Richardson v. Wingate, 1 Ohio Dec. Reprint, 478. And Cook v. Brister, 19 N. J. L. 73, holds that an entry written on an erasure cannot be explained by the party stating that his bookkeeper had by mistake charged another person, and had then erased it and entered it as it appeared. 2 Morris v. Briggs, 3 Cush. 342; Lloyd v. Lloyd, 1 Redf. 399; James v. Harvey, 1 N. J. L. 228. So, also, of falsifications in the book, but which do not affect the entries in question. Webster v. San Pedro Lumber Co. 101 Cal. 326, 35 Pac. 871. S Lovelock v. Gregg, 14 Colo. 53, 23 Pac. 86; Johnson v. Fry, 88 Va. 695, 12 S. E. 973, 14 S. E. 183. 4 Campbell v. Holland, 22 Neb. 587, 35 N. W. 871 (where the leaf had been torn out because it had become soiled and unfit for use) . c. Omission to affix price, weight, etc. — The mere fact that no prices are carried out does not affect the competency of the entries.' l^or is their competency affected by the mere omis- sion of the weight or quantity.* iRemiek v. Rumery, 69 N. H. 605, 45 Atl. 574; Jones v. Orton, 65 Wis. 9, 26 N. W. 172; Steele v. Manufacturing Co. 4 Kulp, 414. Contra: Hagaman v. Case, 4 N. J. L. 370. But entries have been held inadmissible when they furnish nothing by which the propriety of the prices charged can be tested or criticised by witnesses familiar with the subject. McGarry's Estate, 9 Pa. Dist. E. 172. 2 Pratt V. White, 132 Mass. 477. 12. Entries; original or transferred. a. General rule. — Books of account, whether sought to be 86 BRIEF ON FACTS. used under the cominon-law rule, or under statutes regulating their reception in evidence, and whether the entries were made by the party himself, or by a bookkeeper employed for that pur- pose, must contain the original or first permanent record of the transactions.' 1 This requirement is one recognized by all the caaes cited supra and infra, and by the following: Moody v. Roberta, 41 Misa. 74; Cogswell v. Dol- liver, 2 Mass. 217, 3 Am. Dec. 45 ; Watrous v. Cunningham, 71 Cal. 30, 11 Pae. 811; Inalee v. Prall, 23 N. J. L. 457; Vosburgh v. Thayer, 12 Johns. 461; Baldridge v. Penland, 68 Tex. 441, 4 S. W. 565; Skipworth V. Deyell, 83 Hun, 307, 31 N. Y. Supp. 918; James v. Wharton, 3 Mc- Lean, 492, Fed. Caa. No. 7,187 ; Hooker v. Johnson, 6 Fla. 730 ; Wyman V. Wilcox, 66 Vt. 26, 28 Atl. 321; McDavid v. Ellis, 78 111. App. 381. h. Entries transferred from memoranda. — Entries may be original although transferred from some memoranda, made as a temporary assistance to the memory upon a slate, book, paper, or other substance; and its material is of no consequence so long as it is a mere minute, not intended to be preserved as evidence itself of the transaction, but to be used in the prepara- tion of such evidence.' The fact that some of the entries are not the first or original entries is no valid objection as to those entries which are orig- inal, where the improper entries are exceptions, and are not offered in evidence.^ Nor is the character of the book as one of original entry af- fected because the temporary memoranda were made by a per- son other than the one who kept the book offered in evidence.' But entries transferred from temporary memoranda must have been transferred within a reasonable time.* iPatton V. Ryan, 4 Rawle, 408; Webb v. Michener, 32 Minn. 48, 19 N. W. 82 ; Faxon v. Hollis, 13 Mass. 427 ; Hall v. GUidden, 39 Me. 445 ; Landia V. Turner, 14 Cal. 573; Ewart v. Morrell, 5 Harr. (Del.) 126; MoGold- rick V. Wilson, 18 Hun, 443; Hartley v. Brookea, 6 Whart. 189; Ar- nold V. Sabin, 1 Cush. 525; Groachell v. Knoll, 10 Ky. L. Rep. 314; Smith V. Sanford, 12 Pick. 139, 22 Am. Dec. 415. In Ladd v. Sears, 9 Or. 244, a bank's cash book and depositor's balance book were allowed to go in evidence aa against the objection that the books were not books of original entry. aWollenweber v. Ketterlinua, 17 Pa. 389; Chisholm v. Beaman Mach. Co. ACCOUNTS. 87 160 111. 101, 43 N. E. 79C; Armstrong v. Landers, 1 Penn. (Del.) 449, 42 Atl. 617. 8 As where they were first made on a slate by the party's foreman in the factory. Sickles v. Mather, 20 Wend. 72, 32 Am. Dec. 521. Or by employees or salesmen upon shingles, loose scraps of paper, slate, or memorandum book. Paine v. Sherwood, 21 Minn. 225; Levine v. Lancashire Ins. Co. 66 Minn. 138, 68 N. W. 855. Or on the delivery cart by servants who delivered the goods. Miller v. Shay, 145 Mass. 162, 1 Am. St. Rep. 446, 13 N. E. 468. Or upon boards and paper memoranda by sawyers who sawed and deliv- ered the lumber. Davison v. Powell, 16 How. Pr. 467 ; Taylor v. Tuck- er, 1 Ga. 231. But entries made up from receipts given by a servant of the party to whom the goods were delivered are not original. Guthrie v. Mann, — Tex. Civ. App. — , 35 S. W. 710. 4Redlich v. Bauerlee, 98 111. 134. Usually the same day or the day following is proper. Drummond v. Hyams, Harp. L. 268, 18 Am. Dec. 649; Plummer v. Struby-Estabrooke Mercantile' Co. 23 Colo. 190, 47 Pac. 294; Webb v. Michener, 32 Minn. 48, 19 N. W. 82; Ingraham v. Bockius, 9 Serg. & K. 285, 11 Am. Dee. 730. But delay of two or three days without explanation is fatal. Groff's Es- tate, 14 Phila. 306; Grady v. Thigpin, 6 Fla. 668; Vicary v. Moore, 2 Watts, 451, 27 Am. Dec. 323. Contra: Landis v. Turner, 14 Cal. 573. An entry transferred from temporary memoranda at the end of a week's work of sixty hours was upheld in Jefferies v. Urmy, 3 Houst. (Del.) 653; Filkins v. Baker, 6 Lans. 516. Once a month was upheld in Eedlich v. Bauerlee, 98 111. 134. As to entries from a slate, transferred when the slate was full, compare Forsythe v. Norcross, 5 Watts, 432, 30 Am. Dec. 334 (excluding them) ; Hall V. Glidden, 39 Me. 445 ( admitting them) . c. Ledgers. — A ledger is -usually held not to be a book of orig- inal entries.^ But it may still be used under the rule of evidence allowing secondary evidence upon proper foundation laid therefor.^ And a ledger may be admissible where the entries are in fact the original entries.^ lEstes V. Jackson, 21 Ky. L. Rep. 859, 53 S. W. 271; Bracken v. Dillon, 64 Ga. 243, 37 Am. Rep. 70; Griesheimer v. Tannenbaum, 124 N. Y. 650; Stetson v. Wolcott, 15 Gray, 545 ; First Nat. Bank v. Williams, 4 Ind. App. 501, 31 N. E. 370. But see Bush v. Fourcher, 3 Ga. App. 43, 59 S. E. 459. 88 BEIEF ON FACTS. 2 Stanley v. Wilkerson, 63 Ark. 556, 39 S. W. 1043 ; Eigby v. Logan, 45 S. C. 651, 24 S. E. 56. But the bookkeper must be produced, if alive and accessible, to verify the entries. Price v. Garland, 3 N. M. 505, 6 Pac. 472. And a ledger is not admissible vphen books of original entry are ac- cessible. Pohl V. Bradford & E. Bros. — Tex. Civ. App. — , 25 S. W. 984; Vilmar v. Schall, 3 Jones & S. 67. 3 Swain v. Cheney, 41 N. H. 232 ; Jones v. DeKay, 3 N. J. L. 955 ; Gibson V. Bailey, 13 Met. 537; Toomer v. Gadsden, 4 Strobh. L. 193 Hoover v. Gehr, 62 Pa. 136; Sanborn v. Cunningham, — Cal. — . 33 Pac. 894; Anonymous, 21 Misc. 656, 48 N. Y. Supp. 277; Byerts v. Eobinson, 9 N. M. 427, 54 Pac. 932; McGoldrick v. Traphagen, 88 N. Y. 338; GifiFord v. Thomas, 62 Vt. 34, 19 Atl. 1088. But a single original entry does not make the ledger a book of original entry. Fitzgerald v. McCarty, 55 Iowa, 702, 8 N. W. 646. d. Balances. — An entry of what remains due as a balance af- ter allowing all set-offs and counterclaims is not an original entry.* 1 McClintock's Appeal, 58 Mich. 152, 24 N. W. 549 ; Buckner v. Meredith, 1 Brewst. (Pa.) 306; Baldridge v. Penland, 68 Tex. 441, 4 S. W. 565; Contra: as to balance found due on settlement, Spear v. Peck, 15 Vt. 566. 13. Time for making the entries. a. General rule. — Entries should be made at or near the time of the transactions recorded; * although it is not fatal to them that they are not made the same day, so long as they are made in the usual course of business.^ But a book is not evidence when it appears that the entries, although of various dates, were made all at one time.' 1 Watrous v. Cunningham, 71 Cal. 30, 11 Pac. 811 ; Prince v. Smith, 4 Mass. 455 ; Moody v. Eoberts, 41 Miss. 74 ; Davis v. Sanford, 9 Allen, 216 ; State, Eumsey, Prosecutor, v. New York & N. J. Teleph. Co. 49 N. J. L. 322, 8 Atl. 290 ; Lane v. May & T. Hardware Co. 121 Ala. 296, 25 So. 809; Dismuke v. Tolson, 67 Ala. 386. Usually more than one day ought not to be allowed to intervene, unless justified by the peculiar nature of the business. Walter v. Bollman, 8 Watts, 544. In Iowa and Nebraska it is error to admit a book when it is not first shown, as required by statute, that the entries were made at or near the time of the transaction entered, unless satisfactory reasons appear ACCOUNTS. 89 for not making such proof. Anderson v. Ames, 6 Iowa, 486; Atkins V. Seeley, 54 Neb. 688, 74 N. W. 1100. 2 Bay V. Cook, 22 N. J. L. 343; Kaughley v. Brewer, 16 Serg. & K. 133, 16 Am. Dec. 554. A single charge for woric continuing from day to day for several days was upheld in Yearsley's Appeal, 48 Pa. 531. But if the work continues for months, charges should be made, from week to week, or in other limited terms. Cummings v. Nichols, 13 N. H. 420, 38 Am. Dec. 501. An entry of goods sold, made before the goods are delivered or set apart for delivery, is not good. Ehoades v. Gaul, 4 Eawle, 403, 27 Am. Dec. 277. But an entry begun when the goods were ordered, while their quantity and value were uncertain, and filled up after the particulars have been ascertained, and the goods delivered, is good. Malony v. Benner, 3 Grant, Cas. 233 ; Koch v. Howell, 6 Watts & S. 350. So held, also, of an entry made when the goods were loaded and started, in Keim v. Eush, 5 Watts & S. 377. And in WoUenweber v. Ketterlinus, 17 Pa. 389, of an entry made when the articles were furnished and ready for delivery except packing in boxes, although they may not be taken away for several days. 3 Eastman v. Moulton, 3 N. H. 156; Davis v. Sanford, 9 Allen, 216; Eber- hardt v. Schuster, 10 Abb. N. C. 374; Lynch v. McHugo, 1 Bay, 33; Treadway v. Treadway, 5 111. App. 478; Geiger's Appeal, 1 Monaghan, (Pa.) 547, 16 Atl. 851. h. Undated entries. — The rule that entries must have heen made at the time they purport to have been made implies that there must be dates, so far, at least, that the court may see that the case comes within the rule.^ 1 Although it is not necessary that the precise day of the month should be ; affixed to the charge in all cases. Cummings v. Nichols, 13 N. H. 420, ' 38 Am. Dec. 501. In Davis v. Sanford, 9 Allen, 216, undated entries were excluded. And under the Pennsylvania affidavit of defense law items of an account must be dated in the copy filed. Harbison v. Hawkins, 81* Pa. 142. But Doster v. Brown, 25 Ga. 24, 71 Am. Dec. 153, holds the omission of the date to be not fatal to the book. c. Lump charges. — Lump charges are a fatal objection to the admissibility of the book.* And a charge for sundries, if stand- ing alone, is objectionable for generality.* 1 State, Eumsey, Prosecutor, v. New York & N. J. Teleph. Co. 49 N. J. L. 90 BRIEF ON FACTS, 322, 8 Atl. 290; Cargill v. Atwood, 18 K. I. 303, 27 Atl. 214; Bustin v. Rogers, 11 Cush. 346; Corr v. Sellers, 100 Pa. 169; Baumgardner v. Burnham, 10 W. N. C. 445. Contra,: Newell v. Keith, 11 Vt. 214. So held of a single item, of $360 for thirty-six months' board. McLaughlin V. Wear, 1 Marv. (Del.) 267, 40 Atl. 1122. And of an item for three months' services. Henshaw v. Davis, 5 Cush. 146. So, also, of a charge in a physician's book merely for medicine, without specifying the kind. Lance v. McKenzie, 2 Bail. L. 449. Contra: Re Staggers, 8 Pa. Super. Ct. 260. And Bassett v. SpoflFord, 11 N. H. 167, upheld a charge for "visits and medicines" because it did not appear that the charge varied from the usual mode in which physicians made charges, or that the amount was larger than was usually received. In Bay v. Cook, 22 N. J. L. 343, charges embracing services of two or three days were sustained as against the objection that they did not specify for what services. 8 But not where it appears that there is a credit given for the same amount in the same language and on the same date. Cornelius v. Ivins, 10 N. J. L. 56. Nor where a bill of particulars is furnished. McClure v. Byrd, 2 Overt. 21. Nor where the entry is for a bill of goods extending over several days, and was only charged after all the order had been filled. Le Franc V. Hewitt, 7 Cal. 186. 14. Regularity as to course of business. a. General rule. — To justify the reception of a party's boots it must appear that they are his regular books of account, con- taining entries of his business transactions from day to day in the regular course of his business.* But a book containing no entries other than a charge for which the action is brought, and which purports to be but a single transaction, although embracing several articles at one time, is not admissible.* iRyan v. Dunphy, 4 Mont. 356, 47 Am. Rep. 355, 1 Pac. 710; Moody v. Roberts, 41 Miss. 74; Sanford v. Miller, 19 111. App. 536. Cash books and other books of occasional entry are not admissible. Kot- witz v. Wright, 37 Tex. 82. In Iowa and Nebraska the book must show a, continuous dealing with other persons generally, or several items charged at different times against the other party in the same book or set of books. Arney Bros. V. Meyer, 96 Iowa, 395, 65 N. W. 337; Whisler v. Drake, 35 Iowa, 103; Van Every v. Fitzgerald, 21 Neb. 36, 59 Am. Rep. 835, 31 N. W. 264. ACCOUNTS. 91 Books of a bank sued for a balance due from it on account, containing entries of moneys received and paid out, are admissible only so far as they show actual transactions had with the plaintiff. Kuenster v. Woodhouse, 101 Wis. 216, 77 N. W. 165. 8 Ryan v. Dunphy, 4 Mont. 356, 47 Am. Ecp. 355, 1 Pac. 710; Kibbe v. Ban- croft, 77 111. 18. So held, even although it is explained that this vpas done at the request of the party charged. Re Fulton, 178 Pa. 78, 35 L.R.A. 733, 35 Atl. 880. In Vermont, book account may be- maintained although the only item of charge is for a, horse. Kingsland v. Adams, 10 Vt. 201. But Ames V. Fisher, Brayton, 39, held that it could not be maintained for a single charge for a domestic spinning jenny. &. Entries relating to party's business. — The books must also be the books of the party engaged in the business to which they refer, and the entries relate to that business, and not to matters in no way connected therewith.^ I Chicago, St. L. & N. 0. R. Co. v. Province, 61 Miss. 288; Baldridge v. Penland, 68 Tex. 441, 4 S. W. 565. The books are not evidence of a casual sale not in the course of the party's business, and of which it is usual to take other evidence of sale. Shoe- maker V. Kellog, 11 Pa, 310; Stuckslager v. Neel, 123 Pa. 53, 16 Atl. 94. 15. Entries showing intent to charge. The entries must purport to have been made with an intent to charge the party sought to be held liable.'' 1 Moody V. Roberts, 41 Miss. 74; Walter v. Bollman, 8 Watts, 544; Hale v. Ard, 48 Pa. 22. But charges for labor, though not in the usual form of accounts, suffi- ciently show an intent to charge, when they show the nature of the charge, the date when, and for whom, the labor was performed, its duration and kind. Eemick v. Eumery, 69 N. H. 605, 45 Atl. 574. 16. Authentication and correctness of books and entries. a. Necessity generally. — It must also appear that the trans- actions were correctly recorded, or, as it is sometimes expressed, the books must appear to have been fairly and honestly kept.* 1 Moody V. Roberts, 41 Miss. 74; Kling v. Tunstall, 109 Ala. 608, 19 So. 92 BEIEF ON FACTS. 907; American F. Ins. Co. v. First Nat. Bank, — Tex. Civ. App. — , 30 S. W. 384; Irish v. Horn, 84 Hun, 121, 32 N. Y. Supp. 455. It must appear that the party keeping and producing the books is usually precise and punctilious respecting the entries therein, and that they are designed at least to embrace all the items of account which are proper subjects of book entry. Countryman v. Bunker, 101 Mich. 218, 59 N. W. 422. Compare Peck v. Pierce, 63 Conn. 310, 28 Atl. 524. In Iowa the charges must be verified by the party who made them, to the effect that he believes them just and true, unless a sufficient reason be given why such verification is not made. Karr v. Stivers, 34 Iowa, 123; Amey Bros. v. Meyer, 96 Iowa, 395, 65 N. W. 337. i. Oath of the party himself. — In several of the states — ap- parently those in which the suppletory oath of the party is re- ceived with his book — ^it is held that he is a competent witness to prove that the entries are true.^ iMathes v. Robinson, 8 Met. 269, 41 Am. Dec. 505; Black v. Shooler, 2 McCord, L. 293 ; Taylor v. Tucker, 1 Ga. 231 ; Landis v. Turner, 14 Cal. 573. And permitting the party to so testify to entries against a, deceased person does not make him a witness to a transaction between himself and the deceased person. Robinson v. Dibble, 17 Fla. 457; Cargill v. Atwood, 18 R. I. 303, 27 Atl. 214; Jones v. Gammans, 11 Nev. 249; Roche v. Ware, 71 Cal. 375, 60 Am. Rep. 539, 12 Pac. 284; Anthony v. Stinson, 4 Kan. 211. Contra: Dismulces v. Tolson, 67 Ala. 386; Davis v. Sea- man, 64 Hun, 572, 19 N. Y. Supp. 260. And Martin v. Scott, 12 Neb. 42, 10 N. W. 532, holds that the party is incompetent, but that his wife is not. c. Proof by customers.— 'Both, at common law and by express statute in some states, the correctness of the books is to be proved by customers who testify that they had dealt with the party and settled by his books, and that they had found his accounts correct.^ 1 Vosburgh v. Thayer, 12 Johns. 461 ; Smith v. Smith, 163 N. Y. 168, 52 L.R.A. 545, 57 N. E. 300. This proof must be made by dealers or regular customers, and not by employees. Hauptman v. Catlin, 1 E. D. Smith, 729; Walbridge v. Simon, 13 Misc. 634, 34 N. Y. Supp. 939. And the witnesses must have examined the books or settled upon the faith of them ; it is not enough that they state that they found the bills ren- dered correct. Beatty v. Clark, 44 Hun, 126 ; Bower v. Smith, 8 Ga, 74. ACCOUNTS. 93 Settlements since suit begun are not insufficient so long as it is shown that the accounts settled were embraced in the period of time covering the account in question. Foster v. Coleman, 1 E. D. Smith, 85. A single witness is enough. Beattie v. Qua, 15 Barb. 132. But not where there is also an adverse witness who impeaches the book. Morrill v. Whitehead, 4 E. D. Smith, 239. In Michigan the rule was formerly as stated in the text. Jackson v. Evans, 8 Mich. 476. Contra: since the statute making parties competent wit- nesses for themselves. Montague v. Dougan, 68 Mich. 98, 35 N. W. 840; Seventh-Day Adventist Pub. Asso. v. Fisher, 95 Mich. 274, 54 N. W, 759. 17. Knowledge of the person making the entries. a. In general. — As a general rule, it is essential, as to entries made by a living witness, that he shall be able to state that at or about the time the entries were made he knew their contents, and knew them to be true, so that the entries and the testimony of the witness concurrently shall be equivalent to a present af- firmation of the truth of their contents.* 1 Kerns v. McKean, 76 Cal. 87, 18 Pac. 122; Dismukes v. Tolson, 67 Ala. 386; Swan v. Thurman, 112 Mich. 416, 70 N. W. 1023; Hill v. John- son, 38 Mo. App. 383 ; Dykman v. Northbridge, 80 Hun, 258, 30 N. Y. Supp. 164; Thomas v. Price, 30 Md. 483; Dodge v. Morrow, 14 Ind. App. 534, 41 N. E. 967, 43 N. E. 153. Contra: Imhoflf v. Fleuerer, 2 Phila. 35; Jones v. Long, 3 Watts, 325; Bailey v. Barnelly, 23 Ga. 582; Smith v. Law, 47 Conn. 431. h. Entries on information verified by informant. — It is not fatal to a book otherwise unobjectionable that the entries were first made on temporary memoranda and transferred to the book, provided that the original entries on the memoranda and the copying on the book are verified by the various persons who made them.* 1 State V. Shinborn, 46 N. H. 497, 88 Am. Dec. 224; Payne v. Hodge, 7 Hun, 612; Paine v. Sherwood, 21 Minn. 225; House v. Beak, 141 111. 290 ; Kessler v. McConaehy, 1 Rawle, 435 ; McCoy v. Lightner, 2 Watts 347. 18. Bringing home to adverse party. Testimony of the party producing his account in his own iavor, that he thinks the other party saw the entry, is not enough 94 BRIEF ON PACTS. to make it evidence against the latter.* But proof that a debt- or to whom a statement of his account was rendered examined the book at the time when, and from which, it was rendered, and made no objection to its correctness, renders the book com- petent as an admission against him.* iManion Blacksmith & Wrecking Co. v. Carreras, 19 Mo. App. 162 (judg- ment reversed because founded upon this evidence). Memoranda made on the stubs in a note book on the delivery of notes, a.nd held inadmissible unless in the presence and with the knowl- edge of the party receiving the notes, are not rendered competent by testimony that such person was sitting down about 6 feet away at the time. Roberts v. Patterson, 77 111. App. 394. Entries made by a bookkeeper under the direction of his employer, as to facts of which he has no personal knowledge, are not admissible in evidence, especially against one not present when they were made. Hart v. Kendall, 82 Ala. 144, 3 So. 41. An account book containing memoranda of settlements made by one party in the presence of the other, and retained by the latter, is admissible against the latter. McDavid v. Ellis, 78 111. App. 381. 8 Eaub V. Nisbett, 118 Mich. 248, 76 N. W. 393. So, also, where the items in the book were read over to him, and he ob- jected to only a few items. Lever v. Lever, 2 Hill, Eq. 158. Or where the book has been used as the basis of an accounting and settle- ment between the parties. Hainson v. Jones, 20 Mo. App. 595. Or where the parties looked over the book, and the debtor said he was sat- isfied the account was correct. Beales v. Lyons, 14 N. Y. Week. Big. 368. Or where there is other testimony to show that the book was correctly kept, and has been recognized by the debtor in his settlement with oth- er persons as correct. West v. Van Tuyl, 119 N. Y. 620, 23 N. B. 450. And a guardian's book is admissible against his ward where it appears that the latter had access to the book, and did in fact examine it and make entries therein, as well as the guardian. Fowler v. Hebbard, 40 App. Div. 108, 57 N. Y. Supp. 531. 19. What accounts are provable by books. a. Generally. — Usually, of course, a party desiring to use his own books in his own behalf does so for the purpose of proving an account for goods sold and delivered, or for the performance of work and labor, and materials furnished.* 1 This is the principle involved in the cases cited in the preceding sections of the title. And the cases in the following sections show rather the ACCOUNTS. 95 excepticxas to the general rule, that is to say, whether the books are competent to prove the particular account in question. b. Delivery of goods to third person. — A tradesman's book is evidence to charge the original debtor only; but it is not ad- missible against one who merely assumed to pay the debt of the person to whom the goods were delivered.^ And where the books or the evidence in the case show that the goods were delivered to some person other than the one sued and against whom the charges on the books are made, and the controversy is not merely as to the amount or quantity, but whether the party sued is in fact chargeable, many of the courts hold that the books of themselves are not competent evidence of the delivery; but that the order, direction, or request to so deliver the goods to such third person must first be proved by other competent evidence.^ But the fact that the charges are against the agent of the party against whom recovery is sought, instead of against the party himself, does not render the book inadmissible.* 1 Poultney v. Eoss, 1 Ball. 238, 1 L. ed. 117. The book is not competent to prove a promise of payment by the defendant. Somers v. Wright, 114 Mass. 171; Petriken v. Baldy, 7 Watts & S. 429. But that the entries are against the person receiving the goods, while prop- er to be considered by the jury on the question as to whom the credit was given, is not decisive against the admissibility of the books; that fact is not conclusive that the person charged was the original debtor. Winslow V. Dakota Lumber Co. 32 Minn. 237, 20 N. W. 145 ; Greene v. Burton, 59 Vt. 423, 10 Atl. 575 ; Mackey v. Smith, 21 Or. 598, 28 Pac. 974; Fiske v. Allen, 8 Jones & S. 76; Dunlap v. Hooper, 66 Ga. 211. 2 Kinloch v. Brown, 1 Rich. L. 223 ; Soper v. Veazie, 32 Me. 122 ; Kerr v. Love, 1 Wash. (Va.) 172; Tenbroke v. Johnson, 1 N. J. L. 288; Atwood v. Barney, 80 Hun, 1, 29 N. Y. Supp. 810; Wheeler's Estate, 13 Phila. 373. Other courts, as in New Hampshire, hold that when it appears by the book, or upon the examination of the party, that the goods were delivered to a third person, who might he called as a witness, the book is not com- petent evidence of the delivery. Webster v. Clark, 30 N. H. 245. In Massachusetts books, although supported by the suppletory oath of the clerk who made the entries, are not competent to prove to whom credit was given when that fact is in issue. Kaiser v. Alexander, 144 Mass. 71, 12 N. E. 209. 9 b BRIEF ON FACTS. But where there is authority to so deliver the goods, the party's books properly authenticated, or supported by his suppletory oath, are com- petent to prove the delivery. Woodward v. Remington, 81 Hun, 160, 30 N. Y. Supp. 743; Mitchell v. Belknap, 23 Me. 475. SDicken v. Winters, 169 Pa. 126, 32 Atl. 289; Montague v. Dougan, 68 Mich. 98, 35 N. W. 840; Smith v. Jessup, 5 Harr. (Del.) 121. The legal presumption where goods are sold to an agent is that credit is given to the principal, and entries on the vendor's books charging the agent, though of much weight on this question, are not conclusive that credit was given exclusively to him. Foster v. Persch, 68 N. Y. 400. See further, on the question. Credit. c. Professional services.- — ^An account for professional serv- ices, such as those of an attorney or physician, is generally held to be provable by a book of accounts.^ iThat they are, see: Black v. Eeybold, 3 Harr. (Del.) 528 (attorney); Snell V. Parsons, 59 N. H. 521 (attorney) ; Codman v. Coldwell, 31 Me. 560 (attorney) ; Foster v. Coleman, 1 E. D. Smith, 85 (physician) ; Martin v. Scott, 12 Neb. 42, 10 N. W. 532 (physician); Bookout \. Shannon, 59 Mias. 378 (physician). In Pennsylvania the question does not seem to have been settled by the su- preme court of that state. Thus, in Hale v. Ard, 48 Pa. 22, the court said, of the services of a lawyer, that if the question had been properly before them they should hesitate before receiving the entry. And a like expression of opinion is found in Re Fulton, 178 Pa. 78, 3.t L.R.A. 133, 35 Atl. 880. But some of the other courts have received books to prove a physician's account. German's Estate, 16 Phila. 318. But have held otherwise of an attorney's account. Meany v. Kleine, 3 W. N. C. 474. And Foreman's Estate, 7 Pa. Dist. R. 215, doubts whether an account for lawyers' or surgeons' services was provable by his book, d. Worlc done hy servant. — And a book is not admissible tu prove an account for v?ork and labor done because some of the work was done by the party's servant.'' 1 Barker v. Haskell, 9 Cush. 218; Mathes v. Robinson, 8 Met. 269, 41 Am. Dec. 505; Mathews v. Sanders, 15 Ark. 255 (although the court here suggested that the account was susceptible of being more readily proved by original evidence ) . But in Wright v. Sharp, 1 Browne (Pa.) 344, the plaintiff was not allowed to read his book in order to prove work done by his servant. ACCOUNTS. 9T II. Explanations, Coeeections, and Disceediting. 20. Accounts not exclusively the best eviaence. Books of original entry, although they are the best evidence of their own contents,^ are not necessarily the best evidence of the facts entered therein ; and the party's nonproduction of his books (unless they have been duly called for) does not preclude him from proving the charges by the testimony of a witness of the admissions of the adverse party.^ 1 Clark V. Dearborn, 6 Duer, 309, holding that even to prove down to what date an account was kept with a bank the books of the bank must be produced, or foundation for secondary evidence laid. F. Dohmen Co. V. Niagara F. Ins. Co. 96 Wis. 38, 71 N. W. 69 (books themselves are the best evidence of their contents) ; Schotte v. Puacheck, 79 111. App. 31 (not competent for witness to state contents of books of original entry not offered in evidence). Eoden v. Brown, 103 Ala. 324, 15 So. 598 (bookkeeper cannot testify to contents of bank book not produced). But the cashier of a bank having supervision of the books and business may testify that a person has no account with the bank and no money deposited there subject to check, although his knowledge is principally gained from the books of the bank. State v. McCormick, 57 Kan. 440, 57 Am. St. Kep. 341, 46 Pac. 777. Witness, who knows certain facts contained in books of a bank independent of such books, may testify thereto, although the books themselves would be the best evidence of their contents if his knowledge were obtained therefrom. Iowa State Bank v. Novak, 97 Iowa, 270, 66 N. W. 186. A statement in a letter from a receiver of a bank of what the bank books disclosed is inadmissible in an action to recover a deposit, as the books themselves are better evidence. Arnold v. Penn, 11 Tex. Civ. App. 325, 32 S. W. 353. A witness who kept the plaintiff's books, testifying to the correctness of the account sued upon, but basing his evidence upon an examination of the books, together with other documents, and admitting that he did not sell the goods, is not competent to prove their sale and delivery, — the books themselves being higher evidence than his information derived from them. Solomon v. Creech, 82 Ga. 445, 9 S. E. 165. A book account cannot be proved without introducing the books or account- ing for their nonproduction, unless the evidence establishes the correct- ness of the account irrespective of knowledge acquired from the books, as they are the best evidence. Birmingham Lumber Co. v. Brinson, 94 Ga. 517, 20 S. E. 437. Abb. Facts — 7. 98 BEIEF ON PACTS. 2 State, Eumsey, Prosecutor, v. New York & N. J. Teleph. Co. 49 N. J. L. 322, 8 Atl. 290; Dodge v. Morrow, 14 Ind. App. 539, 41 N. E. 967, 43 N. E. 153 {books of original entries inadmissible unless better evi- dence not obtainable ) . Foreman's Estate, 7 Pa. Dist. R. 214 (book entries inadmissible .when transaction admits of more satisfactory proof). Whitaker v. White, 69 Hun, 258, 23 N. Y. Supp. 487 (entry inadmissible when the person who made it can testify to its contents without its aid). Price V. Garland, 3 N. M. 505, 6 Pac. 472 (ledgers and account books not admissible unless it is first shown that the person in whose handwrit- ing they are cannot be produced in court). Walker v. Laney, 27 S. C. 150, 3 S. E. 63. (An account may be proved by the personal knowledge of a witness or the admissions of a debtor, as well as by a book of original entry.) 21. Photographs. Photographic copies of accounts and other papers, which, by reason of being public records, cannot be removed for produc- tion in court, may be received.* Otherwise of originals the genuineness of which is disputed.^ 1 Leathers v. Salvor Wrecking & Transp. Co. 2 Woods, 680, Fed. Cas. No. 8,164. 2 1 Cent. L. J. 121. 22. Secondary evidence not rebuttable. He who by refusing to produce his accounts when duly called for lets in his adversary's secondary evidence of their contents cannot contradict that evidence.* 1 Bogart V. Brown, 5 Pick. 18 ; Piatt v. Piatt, 58 N. Y. 646, 649. McGuiness v. School Dist. No. 10, 39 Minn. 499, 41 N. W. 103 (holding that he cannot afterwards introduce the book itself for purpose of contradicting the secondary evidence ) . Otherwise of a public record equally accessible to both. Tyng v. United States Submarine & Torpedo Boat Co. 1 Hun, 161, affirmed in 60 N. Y. 644, s. u. more fully, 49 How. Pr. 360. He may produce the book to prove another part of the account. Ibid. And refusal to produce as evidence ori a collateral question does not alone establish fraud, nor exclude other evidence of the facts. Burr v. Amer- ican Spiral Spring Butt Co. 81 N. Y. 175, 8 Abb. N. C. 403. ' ACCOUNTS. 99 23. Interpreting symbols. A cross, check, or other unintelligible mark on the face of an account may be explained by the writer; and with his tes- timony to the fact noted by it, it is competent evidence for the jury.i 1 North Bank v. Abbot, 13 Pick. 465, 25 Am. Dee. 334. The explanation of the meaning of certain arbitrary signs and peculiar forms of entry appearing in account books admitted in evidence is ad- missible. Singer Mfg. Co. v. Leeds, 48 111. App. 297. A witness who made book entries, and who testifies that certain blue marks or checks near the entries were not made until long afterwards, should not be allowed to explain the meaning of the checks. Schuchman v. Winterbottom, 31 N. Y. S. K. 184, 9 N. Y. Supp. 733. 24. Time of entries. The opinion of a witness is not competent on the question whether entries in an account were in fact made at the same or different times.* Entries made in the ordinary course of duty, by a third person not appearing to have had any interest, are, in the absence of evidence to the contrary, presumed by law to have been made at the time they bear date.* 1 Phoenix F. Ins. Co. v. Philip, 13 Wend. 81; Ellingwood v. Bragg, 52 N. H. 488, 490. 2 Jermain v. Denniston, 6 N. Y. 276, reversing Jermain v. Worth, 5 Denlo, 342 (entry by bank ofBcer in dealer's pass-book). (In other cases, if the competency of the entry depends on the date, there must be independent evidence of the date.) 25. Explaining. a. In general. — A party whose accounts have been put in evidence, either in his own favor, or against him, may explain them by oral evidence of the intent and meaning of the entries.* 1 Arnold v. Allen, 9 Daly, 198; Meeker v. Claghorn, 44 N. Y. 349; Foster V. Persch, 68 N. Y. 400. Champion v. Joslyn, 44 N. Y. 653. (In an action for the balance of an account stated by defendant, he may claim an omitted item but can- not testify as a witness as to his reason, not communicated to plain- tiff, for omitting it ) Harrison v. Kirke, 6 Jones & S. 396 (error to refuse to allow the party to 100 BKIEF ON FACTS. testify how commissions were really entered in his account, though not appearing as such ) . Richard v. Wellington, 66 N. Y. 308, reversing 5 Hun, 181 (competent to show that a credit in an account rendered was not an admission rele- vant to the transaction against which it was credited, but arose in an independent transaction. ) Quincey v. White, 63 N. Y. 370, reversing Quincey v. Young, 5 Daly, 327 (competent to prove that one defendant had simultaneously a separate account as tending to prove that the account in question was joint). Pierson v. Atlantic Nat. Bank, 77 N. Y. 304. (To show that entries ap- parently charging a cashier were really against his bank, plaintiff might show that similar entries had been made of a former transac- tion with a bank.) An entry in a book of accounts, if ambiguous, may be explained by parol, but it cajinot be shown to mean something which its language does not import. Strong v. Kamm, 13 Or. 172, 9 Pac. 331. i. By expert. — A bookkeeper cannot be allowed to explain, as an expert, books not shown to have been kept under any tech- nical or scientific system of bookkeeping, and which do not ap- pear to require explanation.^ But an expert in bookkeeping may explain entries which might be ambiguous and require ex- planation to make their precise meaning certain.^ 1 McKay v. Overton, 65 Tex. 82. 8 Rogers v. State, 26 Tex. App. 404, 9 S. W. 762 ; Guarantee Co. of N. A. v. Mutual Bldg. & L. Asso. 57 111. App. 254 (expert bookkeeper may tes- tify as to the meaning of entries and the true state of accounts where the books are voluminous and intricate) . Books prepared by experts employed, pursuant to a stipulation entered into by the attorneys, by the referee in an action for dissolution of a copartnership and an accounting, to reduce into a tangible form the accounts of a iirm which have been kept in such a manner as to be ■unintelligible, are admissible in evidence, in connection with the re- port of the referee, for the purpose of enabling the court to compre- hend the accounts. Roberts v. Eldred, 73 Cal. 394, 15 Pac. 16. A competent witness may state the results of his examination of books of account which are in evidence, to aid the jury. State v. Cadwell, 79 Iowa, 432, 44 N. W. 700. A written statement of a depositor's account, made by an expert book- keeper from the books of a bank, may be given in evidence and read to the jury, where such bookkeeper is introduced as a witness and opportunity is given for cross-examination. Culver v. Marks, 122 Ind. 554, 7 L.R.A. 489, 17 Am. St. Rep. 377, 23 N. E. 1086. ACCOUNTS. 101 26. Discrediting. a. By opinion. — The accuracy of an account cannot be im- pugned by asking a witness what is the party's character in respect to keeping accounts; for this calls for an opinion, in- stead of specific facts.* 1 Long V. Taylor, 29 Hun, 127 (holding it not error to exclude such a ques- tion). Tomlinson v. Borst, 30 Barb. 42, 46, holding evidence of moral character incompetent; and that only business character (meaning obviously reputation and not the witness's opinion), and business capacity, and mode of keeping books can be shown. An account kept by one of the parties to a suit founded on an alleged settlement of such account may be impeached by evidence that the one keeping it said that it would be easy to beat the other party in a lawsuit because he kept no account. Day v. Gregory, 60 111. App. 34. h. By specific errors. — It is not competent, for the purpose of discrediting the accuracy of an account, to show an error in entries of transactions entirely disconnected with that in ques- tion, for this would involve trying a collateral issue.* iBurnham v. Strafford, 58 Vt. 194, 2 Atl. 126 (holding that the rule is the same as to official accounts as in respect to private; and the same where the object of putting the account in evidence is to prove a nega- tive from the absence of an entry on the subject, as where the object is to prove a charge entered). nardner v. Way, 8 Gray, 189. Compare Read v. Smith, 1 Hun, 263, 3 Thomp. & C. 760. (Plaintiff's ac- count book was admitted to prove loans, some of which defendant claimed had been paid. The defendant was permitted to call for the preceding and following entries, in themselves irrelevant, to test the accuracy of the entries, or their contemporaneous character; s. p. Metropolitan Nat. Bank v. Hale, 28 Hun, 341.) In Rodenbough v. Eosebury, 24 N. J. L. 491, it was held that excluding evidence of a single incorrectness was not error, for a single error could not impair the credibility of the books. But books of account may be exhibited to show the omission of a proper entry, whereby a mistake was caused in a subsequent settlement. Elsworth Coal Co. v. Quade, 28 Mo. App. 421. See also Teague v. Irwin, 134 Mass. 303, where, in an action for deceit in the sale of the stock of a corporation, the defendant called the treasurer, who produced his journal or cash book and testified that he showed it to plaintiff, the latter was permitted to cross-examine the witness to show that the books were not fairly kept, and did not cor- rectly show the company's affairs. 102 BEIEF ON FACTS. III. Proving Account in Aid of Oeal Testimony. 27. Contemporaneous entries. Entries in an account, or other contemporaneous memoranda, are made competent by producing a witness who testifies that he gave correct information to the writer, although he did not see the entries ; and producing also the writer, who testifies that he, at the time, and knowing his informant, correctly entered the information so received.^ 1 New York v. Second Ave. R. Co. 102 N. Y. 572, 55 Am. Eep. 839, 7 N. E. 905 ( time book of labor and delivery book of material ) . See also Account Stated. Compare Chaffee v. United States, 18 Wall. 516, 21 L. ed. 908. A witness who at the time of purchasing a bill of goods entered each item in a, book, with the cost thereof, may use the book as a memorandum ; and it may be introduced in evidence in corroboration of the witness and as a detailed statement of the items involved, upon its being shown by his testimony that he knows the entries to be correct, and that they were made at the time of the transaction in question. St. Paul F. & M. Ins. Co. v. Gotthelf, 35 Neb. 351, 53 N. W. 137. Books of account are admissible as entries made at the time of the trans- actions, for the purpose of corroborating the testimony of a witness as to the date of such transactions, without being proved in accor- dance with the state statutes relating to account books. Bean v. Lam- bert, 77 Fed. 862. Testimony with reference to contemporaneous entries made by the witness is properly rejected where the books in which the entries are made are neither offered in evidence nor produced in court. Banking House of Wilcoxson & Co. v. Darr, 139 Mo. 660, 41 S. W. 227. 28. Written details of facts testified to. A witness called to prove a number of items may use an ac- count or list to refresh his memory, being required by the court thereupon to testify to each item separately. Or if without the account he cannot recollect all the items he may, in the dis- cretion of the court, be allowed to testify to the result and the correctness of the account; and the account is then admissible as a statement in detail of what he has testified to.* 1 Singer v. Brockamp, 33 Minn. 501, 24 N. W. 189 ; McCormick v. Pennsyl- vania C. R. Co. 49 N. Y. 303; Howard v. McDonough, 77 N. Y. 592, affirming 8 Daly, 365. ACCOUNTS. 103 Compare Harvey v. Cherry, 76 N. Y. 436, affirming 12 Hun, 354 (where exclusion was sustained). A memorandum of items of sale made up from the order book of the seller is not admissible in evidence, where a witness testifies to a dis- tinct recollection of all the sales contained in the memorandum. Don- Ion V. English, 89 Hun, 67, 35 N. Y. Supp. 82. Testimony of a witness from memory, aided only by some detached writ- ings accidentally preserved, as to an entire course of business between him and another, and amounts of money advanced by him for the business, is inadmissible where the account books are not produced, nor their absence satisfactorily accounted for. Stirling v. Wagner, 4 Wyo. 5, 31 Pac. 1032, 32 Pac. 1128. An employer may refer to the entries in a ledger by his bookkeeper to ascertain a balance due from a customer, where the books of original entry have been burned, and the bookkeeper is beyond the jurisdiction of the court. Rigby v. Logan, 45 S. C. 651, 24 S. E. 56. "Where plaintiff is examined as a witness on his own behalf, original en- tries in his books of account, if shown to have been correctly made, may be read in evidence, but not the copy of them; the latter may be used only to refresh the memory. Bonnet v. Glattfeldt, 120 111. 166, 11 N. E. 250. A copy of the last page of an account on which the items of an entire account are footed up, and to the correctness of which the debtor did not object when it was shown him, is admissible in evidence as an admission of its correctness by the debtor, though the book is only a copy, the book of original entries having been burned. Snodgrass v. Caldwell, 90 Ala. 319, 7 So. 834. IV. Mutual Accounts. .^9. Account rendered. An account in the handwriting of one party, produced from the possession of the other party, may be presumed to have been rendered by the former to the latter.^ 1 Nichols V. Alsop, 10 Conn. 263. As to effect, see Account STAiia). ^0. Pass books. Pass books containing debit and credit entries, and proved to Tiave been kept usually in the possession of one party and de- livered from time to time to the other for the purpose of writing up, and to have been written up accordingly and returned, are 104 BEIEF ON FACTS. admissible against either party, irrespective of "whdilier their contents are original entries or not.^ 1 Burke v. Wolfe, 6 Jones & S. 263, 267. A pass book for groceries, given to the person for whom it is made out and which has been continuously in his possession, is admissible in evi- dence in an action for the groceries furnished, as the entries therein will be presumed to be correct. Wilshusen v. Binns, 19 Misc. 547, 43 N. Y. Supp. 1085. A pass book containing entries of goods purchased by the defendant at the plaintiff's market, and retained by the defendant without objec- tion as to the correctness of the entries, except that she stated that she ought to have a certain class of meat at 1 cent less per pound than the amount charged, is admissible in evidence in an action against her for goods sold. Weigle v. Brautigam, 74 111. App. 285. 31. Conclusiveness. A bank pass book written up and returned, and not objected to, becomes conclusive as an account stated.' 1 Leather Mfrs.' Nat. Bank v. Morgan, 117 U. S. 96, 29 L. ed. 811, 6 Sup. Ct. Rep. ,657. See also Aoootjnt Stated. V. Peoving against One Interested in Keeping. 32. Authentication. To render an entry in an account book competent against the party whose book it is, it is enough to show that the entry is in his handwriting,' or that it is in the handwriting of some servant or agent of his, or even that it appears on the face of the account that it is one of a series of entries continuing for such a length of time as to justify an inference that the writer was a recognized servant or agent.* 1 Nichols v. Alsop, 10 Conn. 263 ( so holding of an unsigned account ren- dered). A piece of wood with figures indicating that defendant is indebted to plaintiff in a specified amount is admissible in evidence where plain- tiff has testified that the figures were made by defendant, although the latter denies making them. Nagle v. Fulmer, 98 Iowa, 585, 67 N. W. 369. 2 Root V. Great Western R. Co. 65 Barb. 619. (Entries in book kept by a railway company aflSrmed in 55 N. Y. 636, apparently without discussing this point. The length of time seems a question for the jury.) ACCOUNTS. 105 33. As admissions. Book entries made by a party in tte regular course of his business are admissible in evidence on behalf of the adverse party when in the nature of admissions.^ 1 German Nat. Bank v. Leonard, 40 Neb. 676, 59 N. W. 107; McCain v. Peart, 145 Pa. 516, 22 Atl. 981; Hanson v. Jones, 20 Mo. App. 595; Plummer v. Struby-Estabrooke Mercantile Co. 23 Colo. 190, 47 Pac. 294. An entry in books of account, made by one not connected with the litiga- tion, is admissible in evidence when the fact stated is against his interest, and when the entry is offered after his death. Heidenheimer V. Johnson, 76 Tex. 200, 13 S. W. 46. The accounts on the books of a corporation are evidential as admissions against a director and officer of the corporation, who had access to the books. Bird v. Magowan, — N. J. Eq. — , 43 Atl. 278. 34. Agent's books. Entries in the books of a party's agent are competent against the party.^ 1 Standard Oil Co. v. Triumph Ins. Co. 64 N. Y. 85, 91, affirming 3 Hun, 591, 6 Thomp. & C. 300. An account kept by one who acted as an agent of the testatrix, in her lifetime, which was examined and settled by her, is good evidence as against her without other vouchers, upon the settlement of her execu- tors. Re Bolton, 71 Hun, 32, 24 N. Y. Supp. 799, affirmed in 141 N. Y. 554, 35 N. E. 1079. Original book or record entries made contemporaneously with the facts, by an agent in the performance of his duties, are properly excluded, in the absence of proof that such agent cannot be found, except that the party offering them swears that his place of residence is unknown, without stating whether any effort has been made to ascertain it. St. Louis, I. M. & S. R. Co. v. Henderson, 57 Ark. 402, 21 S. W. 878. Books of account of the agents of a mortgagee, containing entries in re- gard to the loan for which the note and mortgage were given, are ad- missible in an action to foreclose the mortgage. Dexter v. Berge, 76 Minn. 216, 78 N. W. 1111. 35. Joint books. Entries in books of a firm * or association ^ are competent against a member, even in favor of another member of the whole body, if it be shown that the one against whom they are offered had access to the books and opportunity to know of the 106 BRIEF ON FACTS. entries. Evidence that lie had no actual knowledge goes to their weight, not to their competency. IFairehild v. Fairchild, 64 N. Y. 471, afl5rmmg 5 Hun, 407 (firm books evidence between the partners) . 5Morria v. Haas, 54 Neb. 579, 74 N. W. 828. Entries upon the books of a, dissolved firm, made by one of the former partners without the knowledge or consent of the other, are incom- petent against the latter upon the issue of his indebtedness to the firm. Bank of British N. A. v. Delafield, SO Hun, 564, 30 N. Y. Supp. 600. ■On the settlement of partnership accounts, the partnership books are com- petent evidence, but it may be shown, aliunde, that they do not contain a full statement of the partnership transactions. Glover v. Hembree, 82 Ala. 324, 8 So. 251. Where the business has been almost exclusively conducted by one member of the firm, and the books kept by him, the other member is entitled to introduce evidence of the incorrectness of the entries in such books, and also to show that others not entered should be made; but such evidence may be overthrown by countervailing testimony. Carpenter V. Camp, 39 La. Ann. 1024, 3 So. 269. The existing books of a partnership may be used on an accounting of the partnership affairs, and the proof derived from them may be supple- mented by such other competent evidence as the parties can offer, where the partner whose duty it is to keep the firm books has neg- lected for a, time to perform that duty. Van Name v. Van Name, 38 App. Div. 451, 56 N. Y. Supp. 659. Entries on the books of a firm which is succeeded by a firm having a spe- cial partner are inadmissible in an action against the latter to charge him with the debts of the firm on the ground that his capital was not paid in, in cash, as required by statute, in the absence of proof of his knowledge of the entries, although the old books were used for keeping the accounts of the new firm. Kohler v. Lindenmeyr, 129 N. Y. 498, 29 N. E. 957. See Knovtledqe, ACCOUNT STATED. 107 ACCOUNT STATED. 1. Account rendered and not objected to. 2. Part payment on account rendered. 3. Reservation of objection. 4. Objections to part. 5. Reasonable time. 6. Giving note implies accounting in full. 7. To impeach. 8. Account admissible without original books. See also Accounts. As to what constitutes, see note to Vanbebber v. Plunkett, 27 L.E.A. 811. Upon effect of, see note to Priestley's Appeal, 4 L.R.A. 503. 1. AccoTint rendered and not objected to. While the mere rendition of an account by one party to an- other does not show an account stated,^ it is well settled that the rendition of an account and its retention by the party to whom sent, without objection within a reasonable time, give it the force and effect of a stated account.^ The principle of the decisions is that, if the account has been kept so long that it must be inferred that the party receiving it has had time to ex- amine it and object to it if it was wrong, he must be presumed to have acquiesced in it if he remains silent.' But to give an account rendered the force of an account stated, because of silence on the part of the person receiving it, the circumstances must be such as to justify an inference of assent on his part to its correctness;* and, if the party to whom the account is rendered objects within a reasonable time, there is no room for inferring an admission of its correctness.* The earlier rule in law upon the subject of accounts stated was that it was ap- plicable to merchants only; but the needs of modern business have so enlarged it that it may be properly applied to all classes of business men.* As in the case of an account which has be- come stated by express agreement, so also where assent is im- plied from a failure to object to an account rendered, the account is regarded as prima facie correct,'' and the onus of showing 108 BEIEF ON FACTS. error or fraud in such an account is on the party who has re- tained it.' But the presumption of acquiescence in an account rendered, arising from its retention without objection after the lapse of a reasonable time, is not conclusive, but only evidence of an admission, and is therefore subject to disproof,* and, although the presumption is sometimes spoken of as a "legal presump- tion,"^" or as "a rule of law,"^' or as "an implication of law,'"^ it is generally held that the weight to be given to the retention of the account without objection is, just as in the case of other evidential facts, ordinarily for the jury, except where, upon the state of fact presented, the presumption of assent is so strong as to preclude a contrary conclusion.''* 1 Irvine v. Young, 1 Sim. & Stu. 333, 1 L. J. Ch. 108; Toland v. Sprague, 12 Pet. 334, 9 L. ed. 1107; Rowland v. Donovan, 16 Mo. App. 554; Emery v. Pease, 20 N. Y. 62; Guernsey v. Eexford, 63 N. Y. 631; Shaw V. Lobe, 58 Wash. 219, 29 L.R.A.(N.S.) 333, 108 Pac. 450. STickel V. Short, 2 Ves. Sr. 239; Wiggins v. Burlcham, 10 Wall. 129, 19 L. ed. 884; Cooper v. Coates, 21 Wall. 105, 22 L. ed. 481; Talcott v. Chew, 27 Fed. 273; Langdon v. Eoane, 6 Ala. 518, 41 Am. Dec. 60; First Nat. Bank v. Allen, 100 Ala. 476, 27 L.R.A. 426, 46 Am. St. Rep. 80, 14 So. 335; Brown v. Brown, 16 Ark. 202; Terry v. Sickles, 13 Cal. 427; Martyn v. Amold, 36 Fla. 446, 18 So. 791; Field v. Eeid, 21 Ga. 314; Miller v. Bruna, 41 111. 293; Ingle v. Norrington, 126 Ind. 174, 25 N. E. 900; White v. Campbell, 25 Mich. 463; Smith v. Marvin, 27 N. Y. 137, 25 How. Pr. 317; Samson v. Freedman, 102 N. Y. 699, 7 N. E. 419; Truman, H. & Co. v. Owens, 17 Or. 523, 21 Pae. 665; Thompson v. Fisher, 13 Pa. 310; Goldsmith v. Latz, 96 Va. 680, 32 S. E. 483; Engfer v. Roemer, 71 Wis. 11, 36 N. W. 618. s Dows V. Durfee, 10 Barb. 213. 4 Champion v. Recknagel, 6 App. Div. 151, 39 N. Y. Supp. 814; Spellman v. Muehlfeld, 166 N. Y. 245, 59 N. E. 817, reversing 48 App. Div. 265, 62 N. Y. Supp. 749. Evidence of a bookkeeper of a creditor that he prepared a statement of the debtor's account, put it in a stamped envelope addressed to the debtor, placed it in an open mail box in his employer's office, from which postmen always took any mail which might be there, and that he never knew of any objection by the debtor to such statement, is sufficient evidence of assent by the debtor to the statement to go to the jury on the issue of an account stated. Bee v. Tierney, 58 111. App. 552. 6 White V. Campbell, 25 Mich. 463. ACCOUNT STATED. 109 6 Fleischner v. Kubli, 20 Or. 328, 25 Pac. 1086 ; Crawford v. Hutchinson, 38 Or, 578, 65 Pac. 84; Nodine v. First Nat. Bank, 41 Or. 386, 68 Pac. 1109; Sliepard v. Bank of State, 15 Mo. 143; Missouri P. K. Co. V. Palmer, 55 Neb. 559, 76 N. W. 169. The rule is applied not only to accounts of matters -within the peculiar knowledge of the party receiving the account, — as of goods furnished to him,^ — ^but to the general account between merchants, to an agent for selling and leasing lands and receiving the consideration moneys and the rents, and to accounts of sales rendered by commission mer- chants. Dows V. Durfee, 10 Barb. 213. So also, as between a factor or commission merchant and his principal. Ledoux V. Porche, 12 Rob. (La.) 543; Flower v. O'Bannon, 43 La. Ann. 1042, 10 So. 376; Smcdley v. Williams, 1 Pars. Sel. Eq. Cas. 359; Bevan v. Cullen, 7 Pa. 281; Thompson v. Fisher, 13 Pa. 310. So, also, as between attorney and client. Crawford v. Hutchinson, 38 Or. 578, 65 Pac. 84. The rule is applicable to a private corporate body engaged in trade and conducting its affairs through the instrumentality of officers and agents, as well as to individual natural persons carrying on business in the same way. Bradley v. Richardson, 23 Vt. 720. And the rule applies to an account rendered by auctioneers to their em- ployers. Townes v. Birchett, 12 Leigh, 173. TGooch V. Vaughan, 92 N. C. 610; Goldsmith v. Latz, 96 Va. 680, 32 S. E. 483; McLaughlin v. United States, 36 Ct. CI. 138. 8 Powell V. Powell, 10 Ala. 900 ; Andrews v. Hobson, 23 Ala. 219 ; Ledoux V. Porche, 12 Rob. (La.) 543; Philips v. Belden, 2 Edw. Ch. 1; Lock- wood V. Thome, 11 N. Y. 170, 62 Am. Dec. 81 ; Lambert v. Craft, 98 N. Y. 342; Gooeh v. Vaughan, 92 N. C. 610; Townes v. Brichett, 12 Leigh, 173. 9 Wiggins V. Burkham, 10 Wall. 129, 19 L. ed. 884; Sloan v. Guice, 77 Ala. 394; Hardy v. Chesapeake Bank, 51 Md. 562, 34 Am. Rep. 325; Kenneth Invest. Co. v. National Bank, 96 Mo. App. 125, 70 S. W. 173; Rich V. Eldredge, 42 N. H. 153; Guernsey v. Rexford, 63 N. Y. 631; Spellman v. Muehlfeld, 166 N. Y. 245, 59 N. E. 817; Sergeant v. Ewing, 30 Pa. 75; Jones v. DeMuth, 137 Wis. 120, 118 N. W. 542. An account stated between the parties is prima facie,, but not conclusive, evidence of the accuracy and correctness of the items. HoUenbeck v. Ristine, 105 Iowa, 488, 67 Am. St. Rep. 306, 75 N. W. 355. But the acceptance and retention of an account without objection, al- though tending to establish an admission of correctness, is not conclu- sive. It may be met by proof of mistake undiscovered while the ac- count was so retained, and the question then becomes one of fact for the jury. Sharkey v. Mansfield, 90 N. Y. 227, 43 Am. Rep. 161. 10 Hall v. Sloan, 9 Phila. 138. 11 Ingle V. Norrington, 126 Ind. 174, 25 N. E. 900. 110 BEIEF ON FACTS. 12 Charlotte Oil & Fertilizer Co. v. Hartog, 29 C. C. A. 56, 42 U. S. App; 716, 85 Fed. 150. 13 Hamilton-Brown Shoe Co. v. Choctaw Mercantile Co. 80 Ark. 438, 97 S. W. 284; Quincey v. White, 63 N. Y. 370; Talcott v. Chew, 27 Fed. 273; Allen-West Commission Co. v. Patillo, 33 C. C. A. 194, 61 U. S. App. 94, 90 Fed. 628. For an extensive treatment of the question of eflfect of retaining statement of account to render it an account stated, see note in 29 L.R.A, (N.S.) 334. 2. Part payment on account rendered. Making part payment on an account rendered is enough to go to the jury, as showing an account stated.^ 1 Samson v. Freedman, 102 N. Y. 699, 7 N. E. 419. Silence on the part of a debtor for two weeks after receiving an account, payments thereon on account thereafter, and a promise to pay money every month as he can spare it until paid, with a statement that he owes the balance as a gambling debt, are sufficient to sustain a finding that an account was stated. Mulford v. Csesar, 53 Mo. App. 263. 3. Reservation of objection. A reservation of the right to correct errors, etc., if any, does not deprive the account stated of effect, but leaves the burden on the party reserving the right to prove error.'' 1 Samson v. Freedman, 102 N. Y. 699, 7 N. E. 419 ; McKay v. Overton, 65 Tex. 82. The insertion of the statement that errors aomd omissions are accepted does not prevent it being an account stated. Fleischner v. Kubli, 20 Or. 328, 25 Pac. 1086 ; Branger v. Chevalier, 9 Cal. 353 ; Kent v. Highley- man, 28 Mo. App. 614. 4. Objections to part. Objections made to specified items only do not prevent the rest of the account from becoming an account stated as if no objections were made.' And an account rendered may be regarded as stated, so far as the quantity therein charged is concerned, where the only objection made thereto was in regard to the price.* 1 Wiggins v. Burkham, 10 Wall. 129, 19 L. ed. 884. ACCOUNT STATED. Ill That one item is disputed will not prevent the amount of the others from becoming an account stated. Mulford v. Caesar, 53 Mo. App. 263. The objection to some only of the items in the account will admit the others to be correct. Joseph v. Southwark Foundry & Mach. Co. 99 Ala. 47, 10 So. 327 ; Burns v. Campbell, 71 Ala. 286 ; Tuggle v. Minor, 76 Cal. 96, 18 Pac. 131; Ware v. Manning, 86 Ala. 238, 5 So. 682; Power V. Root, 3 E. D. Smith, 70; McLaughlin v. United States, 36 Ct. CI. 138. As to the effect, generally, of a dispute as to certain items of an account upon assent to other items, see note in 7 L.R.A. (N.S. ) 924. 2 Dakin v. Walton, 85 Hun, 561, 33 N. Y. Supp. 203. 5. Reasonable time. The Federal courts, and some others which have followed their lead, hold that what is a reasonable time is, where the facts are clear, always a question exclusively for the court. Where the proofs are conflicting, the question is a mixed one of law and fact.^ On the other hand it has been held in several juris- dictions that the question is one of fact.^ What is a reason- able time will depend upon the relation of the parties and the usual course of their business.^ 1 Toland v. Sprague, 12 Pet. 300, 9 L. ed. 1093 ; Wiggins v. Burkham, 10 Wall. 129, 19 L. ed. 884; Standard Oil Co. v. VanEtten, 107 U. S. 325, 1 Sup. Ct. Eep. 178, 27 L. ed. 319; Edwards v. Hoeffinghoff, 38 Fed. 635; Daytona Bridge Co. v. Bond, 47 Fla. 136, 36 So. 445; Martyn v. Amold, 36 Fla. 446, 18 So. 791; Brown v. Kimmel, 67 Mo. 430; Fleischner v. Kubli, 20 Or. 328, 25 Pac. 1086 ; Howell v. Johnson, 38 Or. 571, 64 Pac. 659; Ault v. Interstate Sav. & L. Asso. 15 Wash. 627, 47 Pac. 13. 8 Lewis V. Utah Constr. Co. 10 Idaho, 214, 77 Pac. 336 ; Austin v. Ricker, 61 N. H. 97; Moran v. Gordon, 33 111. App. 46; Hollenbeck v. Ris- tine, 105 Iowa, 488, 67 Am. St. Rep. 306, 75 N. W. 355; Peter v. Thickstun, 51 Mich. 589, 17 N. W. 68; Little v. McClain, 134 App. Div. 197, 118 N. Y. Supp. 916. 3 Darby v. Lastrapes, 28 La. Ann. 605 ; Freeman v. Howell, 4 La. Ann. ■ 196, 50 Am. Dec. 561; Lookwood v. Thorne, 12 Barb. 487; Harris v. Ely, Selden's Notes, 37; Howell v. Johnson, 38 Or. 571, 64 Pac. 659; Porter v. Patterson, 15 Pa. 229; Colket v. Ellis, 1 W. N. C. 246; Ault V. Interstate Sav. & L. Asso. 15 Wash. 627, 47 Pac. 13; Bain- bridge V. Wilcocks, Baldw. 536, Fed. Cas. No. 755. Twelve days between merchants at home is not too short a time to turn an account rendered, and not objected to, into an account stated. Wiggins V. Burkham, 10 Wall. 129, 19 L. ed. 884. 112 BEIEF ON FACTS. Between merchants at home an account which has been presented, and to which no objection has been made after the lapse of several posts, is treated, under ordinary circumstances, as being by acquiescence a stated account. Brown v. Vandyke, 8 N. J. Eq. 795, 55 Am. Dec. 250; Freas v. Truitt, 2 Colo. 489. Keeping the rendered account three or four years after receiving it with- out objection will make it a stated account. Bruen v. Hone, 2 Barb. 586. Where brokers on December 26 mailed an account to their customer with notice that if it was not paid by the 31st day they would bring suit against him, and suit was brought on January 14, it was held that thfc account had become stated. Knickerbocker v. Gould, 115 N. Y. 533, 22 N. E. 573. 6. Giving note implies accounting in full. The giving of a promissory note raises a legal, but not a con- clusive, presumption that at its date the parties adjusted all demands between them, and found a balance thereupon due of an amount represented by the note.* I Lake v. Tysen, 6 N. Y. 461; Proctor v. Thompson, 13 Abb. N. C. 340, 351. 7. To impeach. To impeach an account stated the books of account on the faith of which it was made are admissible in evidence as ad- missions of the party against his interest, to show the manner in which the settlement was made and an erroneous balance struck.* 1 Hanson v. Jones, 20 Mo. App. 596. 8. Account admissible without original books. Statements of account made up and assented to by the par- ties,* or not objected to within a reasonable time after ren- dition,^ are admissible in evidence without production of the books of original entry. 1 Jacksonville, M. P. R. & Nav. Co. v. Warriner, 35 Fla. 197, 16 So. 898. ZMaekin v.. O'Brien, 33 HI. App. 474. The books of account of plaintiff in an action on an account stated are not admissible in evidence independently of the alleged account. Ster- ling Lumber Co. v. Stinson, 41 Xeb. 368, 59 N. W. 888. ACKNOWLEDGMENT. 113 ACKNOWLEDGMENT. 1. Burden of proof. 2. Presumptions. 3. Best and secondary evidence. 4. Unacknowledged or defectively acknowledged deed, or record thereof, as evidence. a. Necessity of acknowledgment. b. Time of acknowledgment. c. Defective acknowledgment. 5. Parol and extrinsic evidence. 6. Privileged communications to notary. 7. What defects disregarded. 8. Sufficiency of evidence to impeach certificate of acknowledgment. As to acknowledgment to take a debt out of the statute of limitations, see Abbott, Trial Ev. 1042. Sufficiency of abbreviation to show official character of officer taking ac- knowledgment, see note to Summer v. Mitchell, 14 L.R.A. 815. Validity of acknowledgment of deed of trust taken by the trustee, see note to Rothschild v. Dougher, 16 L.E.A. 719. Leaving blank for name of party in certificate of acknowledgment, see note to Milner v. Nelson, 19 L.E.A. 279. Right of interested persons to take acknowledgment, see note to Havemeyer v. Dahn, 33 L.R.A. 332. 1. Burden of proof. A married woman who united with her husband in a con- veyance has the burden of proof, when attacking the deed for want of due execution, if she admits signing it, and the cer- tificate of acknowledgment is in lawful form.^ One claiming under a deed from a married woman must show that the deed was fully explained to her by the officer, as re- quired by statute, where the certificate of acknowledgment fails to state such fact.^ The burden of proving that the acknowledgment of a deed is valid in the foreign state where it was executed, although defective under the laws of the state where it is offered in evi- dence, rests upon the party offering it.^ 1 People ex rel. EUert v. Cogswell, 113 Cal. 129, 35 L.R.A. 269, 45 Pac. 270. 2 Norton v. Davis, 83 Tex. 32, 18 S. W. 430. SKruger v. Walker, 94 Iowa, 506, 63 N. W. 320. Abb. Facts — 8. 114 BEIEF OIT FACTS. 2. Presumptions. A certificate of acknowledgment is presumptive, but not con- clusive, evidence that an instrument was duly executed.^ 1 Albany County Sav. Bank v. MoCarty, 71 Hun, 227, 24 N. Y. Supp. 991. In Alabama the presumption will be indulged that a deed recorded in the proper office for more than twenty years was legally proved or ac- knowledged. England v. Hatch, 80 Ala. 247. It will be presumed that an error in the description in a deed of a wife's- separate property, pointed out to her husband before acknowledgment and corrected before delivery of the deed, was corrected before the wife acknowledged it, in the absence of evidence as to when it was done. Houston v. Jordan, 82 Tex. 352, 18 S. W. 702. Also that an acknowledgment was made in the state shown by the venue, although the officer before whom it was made has no power to take it in such state. Rogers v. Pell, 154 N. Y. 518, 49 N. E. 75. And that a probate officer would not take proof of a deed otherwise than in a case allowed by law. Devereux v. McMahon, 102 N. C. 284, 9 S. E. 635. But that the officer who took the acknowledgment of a mortgage was the vice president of the mortgagee corporation does not create a pre- sumption that he was a stockholder so as to render the acknowledg- ment void, where the act under which the corporation was organized does not make ownership of stock a qualification for such office. Florida Sav. Bank & Real Estate Exch. v. Rivers, 36 Fla. 575, 18 So. 850. 3. Best and secondary evidence. A certified copy of a deed wliich has never been acknowledged so as to authorize its legal registration is not admissible in evi- dence, even on proper aifidavit of the loss of the original.^ l^or is a certified copy of an unacknowledged bill of sale admissible where the loss of the original is not accounted for, and no attempt is made to prove its execution.* 1 Hill V. Taylor, 77 Tex. 295, 14 S. W. 366. A duly certified copy of a recorded deed is admissible as presumptive evi- dence of the truth of the record itself, and of the fact of conveyance of title, although the execution and acknowledgment of the deed are in dispute. Sudlow v. Warshing, 108 N. Y. 520, 15 N. E. 532. 2 Reynolds v. Campling, 23 Colo. 105, 46 Pac. 639. 4. Unacknowledged or defectively acknowledged deed, or record thereof, as evidence. a. Necessity of achnowledqment. — The record of an unac- AOKNOWLEDGMENT. 115 knowledged deed will not be received as evidence of its execu- tion.* A deed purporting to have been regularly acknowledged is not rendered inadmissible because the record fails to show an acknowledgment thereof.* ISTor is a tax deed in. the statutory form inadmissible although not acknowledged or recorded, where neither is essential to the passing of title under it.' An unacknowledged chattel mortgage is competent evidence where the mortgagees immediately took possession of the mort- gaged chattels.* 1 Clark v. Wilson, 27 111. App. 610, affirmed in 127 111. 449, 11 Am. St. Rep. 143, 19 N. E. 860. A deed of assignment on record in a public office of another state is not within U. S. Eev. Stat. § 905, relating to the records and judicial pro- ceedings of the courts of states and territories when offered for evi- dence in the courts of another state, and must be acknowledged and properly certified as required by N. Y. Laws 1848, chap. 195, before it can be admitted in evidence. Johnston v. Granger, 17 Misc. 54, 39 N. Y. Supp. 848. A deed is good between the parties to it, without an acknowledgment, and a party who acquired an interest in the land before the deed was executed cannot object to its reception in evidence for any defect in its acknowledgment. Hewitt v. Morgan, 88 Iowa, 468, 55 N. W. 478. An acknowledgment taken in another state must be shown in all respects to have complied with the law in force in that state, and also to be in accordance with the usages of that state, in order to entitle the deed to be admitted in evidence under Iowa Code, § 1966, providing that all deeds and conveyances of land within the state theretofore executed, and which were acknowledged or proved according to and in compliance with the laws and usages of the state in which said deeds were acknowledged and proved, are effectual and valid to all intents and purposes. Kruger v. Walker, — Iowa, — , 59 N. W. 65. The record of a deed apparently properly executed and acknowledged is evidence that it was in fact executed as it purports to have been, not- withstanding the deed is void or voidable by reason of extrinsic facts. Clague V. Washburn, 42 Minn. 371, 44 N. W. 130. S Gardner v. Port Blakely Mill Co. 8 Wash. 1, 35 Pac. 402. 8 Ellis V. Clark, 39 Fla. 714, 23 So. 410. 4 Webber v. Mackey, 31 111. App. 369. b. Time of acknowledgment. — A deed is admissible as color of title in connection with the grantee's actual possession for the statutory period, although not acknowledged until shortly 116 BEIEF ON FACTS. before suit brought.* Nor does the fact that a deed executed before the commencement of an action of trespass to try title was acknowledged after commencement, make the title an after- acquired one, and render the deed inadmissible where ii; was valid without acknowledgment.^ A tax deed not acknowledged as required by statute is not prima facie evidence of the regularity of the tax proceedings, nor is it made so by the subsequent separate recording of an acknowledgment made by the officer who executed the deed long after his term expired.^ 1 Mclnerny v. Irvin, 90 Ala. 275, 7 So. 841. 2 Morgan v. Baker, — Tex. Civ. App. — , 40 S. W. 27. 8 Johnston v. Sutton, 45 Fed. 296. c. Defective acknowledgment. — The record of a deed is inad- missible where the acknowledgment is a mere nullity,* or unless it is substantially in accordance with the statute.^ A defectively acknowledged deed is competent evidence tend- ing to show ownership in the grantee,' and is admissible against some of the purported grantors who did properly acknowledge it.* But a deed not made by defendant, or executed or acknowl- edged in the manner prescribed by statute, is inadmissible against him in a real action without proof of its execution aliunde.^ Nor is a deed admissible where the certificate of ac- knowledgment fails to show that the person who acknowledged the deed was either known to the officer or proved before him to be the person whose name was signed to the conveyance.* A deed from a married woman is admissible as color of title, although her privy examination does not appear to have been taken.' And a deed from a married woman and other persons is properly admitted in evidence against such other persons, atlhough it is not legally acknowledged by the married woman so as to be admissible against her.* Also a deed by a husband and wife conveying a homestead is admissible to sustain plain- tiff's title although the wife's acknowledgment is defective, where it was executed nearly thirty years before, and neither the grantors nor those claiming under them are asserting any rights.' So, a power of attorney executed by a married woman ACKNOWLEDGMENT. 117 is admissible in evidence as a basis for a partition, ■where a parol partition would be sufficient.^" 1 Trowbridge v. Addoms, 23 Colo. 518, 48 Pac. 535. 2 Maxwell v. Higgins, 38 Neb. 671, 57 N. W. 388. No length of time will render admissible in evidence as an ancient state- ment a certified copy of the record of a deed which was not properly acknowledged, and was improperly registered. Hill v. Taylor, 77 Tex. 295, 14 S. W. 366. The record of a deed stating the grantor's first name to be Jones, and that it was acknowledged by "James," is inadmissible in evidence. Stephens V. Motl, 81 Tex. 115, 16 S. W. 731. But a clerical error in the name of the grantor, in the record of the acknowledgment of a deed, does not render the record of the deed in- admissible in evidence upon proper proof that such error has been made. Heil v. Redden, 45 Kan. 562, 26 Pac. 2. 3 Banbury v. Sherin, 4 S. D. 88, 55 N. W. 723. 4 Minor v. Powers, — Tex. Civ. App. — , 38 S. W. 400. 6 Lydiard v. Chute, 45 Minn. 277, 47 N. W. 967. 6 Davidson v. Wallingford, 88 Tex. 619, 32 S. W. 1030. 7 Smith V. Allen, 112 N. C. 223, 16 S. E. 932. 8 Garcia v. Illg, 14 Tex. Civ. App. 482, 37 S. W. 471. 9 Cosby V. Stimson, — Tex. Civ. App. — , 26 S. W. 275. 10 Martin v. Harris, — Tex. Civ. App. — , 26 S. W. 91. 5. Parol and extrinsic evidence. The general rule is that the acknowledgment of an instru- ment must be shown by the certificate of the officer taking it, and cannot be proved by parol, nor can a defective acknowledg- ment be aided or cured by extrinsic evidence.* Thus, parol evi- dence is inadmissible to show that the privy examination of a married woman has been regularly taken, or that the officer tak- ing the same has through accident, inadvertence, or mistake omitted some material statement required by statute to be set forth in the certificate.* And it cannot be shown by parol that the party executing an instrument was personally known to the officer taking the acknowledgment.' In the case of a deed actually executed by a married woman of full age and sound mind, a certificate of her separate exam- ination and acknowledgment, in the form prescribed by the statute, and duly recorded with the deed, cannot afterwards, ex- cept for fraud, be controlled or avoided by extrinsic evidence 118 BEIEF ON I"ACTS. of the manner in wliich the examination was conducted by &€ magistrate.* And where the certificate of acknowledgment of a mortgage is in proper form, parol evidence cannot be received, in the absence of fraud or imposition, to show that it is untrue in fact.' But it is competent to show by parol that parties alleged to . have acknowledged an instrument did not appear before the officer.® And parol evidence is admissible that one who took an ac- knowledgment was a notary public and used a seal of a par- ticular kind, where his official character is only collaterally involved;' also that one before whom the acknowledgment of a mortgage was taken was a justice of the town where the mort- gagors resided, although the acknowledgment only shows him to have been a justice of the county.' And the acknowledg- ment of a married woman to a lost deed may be established by parol or circumstantial evidence.' 1 Elliott V. Piersol, 1 Pet. 328, 7 L. ed. 164; Pendleton v. Button, 3 Conn. 406; O'Ferrall v. Simplot, 4 Iowa, 381; McClure v. McClurg, 53 Mo. 173; Solt V. Anderson, 71 Neb. 826, 99 N. W. 678; Elwood v. Kloek, 13 Barb. 50; Hughes v. Wright, — Tex. Civ. App. — , 97 S. W. 525; Harrisonburg First Nat. Bank v. Paul, 75 Va. 594, 40 Am. Rep. 740; Leftwich v. Neal, 7 W. Va. 569. 2 Harrisonburg First Nat. Bank v. Paul, 75 Va. 594, 40 Am. Rep. 740. SLindley v. Smith, 46 111. 523. But see Hutton v. Webber, 28 Jones & S. 247, 17 N. Y. Supp. 463, in which parol evidence was admitted to show that the notary taking the acknowledgment personally knew that the parties making it were the individuals described in and who exe- cuted the instrument. 4 Hitz V. Jenks, 123 U. S. 297, 31 L. ed. 156, 8 Sup. Ct. Rep. 143 ; Watson V. Watson, 118 111. 50, 7 N. E. 95 (holding that fraud or collusion on the part of the officer must be shown). A regular statutory certificate of acknowledgment of a deed made by a husband and wife is conclusive evidence of the facta therein stated, in the absence of fraud. Authorities cited in Ford v. Osborne, 45 Ohio St. 1, 12 N. E. 526. 6 Shelton v. Aultman & T. Co. 82 Ala. 315, 8 So. 232. e Bouvier-Iaeger Coal Land Co. v. Sypher (U. S. C. C. W. Va.) 186 Fed, 644. 7 Stooksberry v. Swann, 12 Tex. Civ. App. 66, 34 S. W. 369. 8 Rehkopf V. Miller, 59 111. App. 662. 9 Daniels v. Creekmore, 7 Tex. Civ. App. 573, 27 S. W. 148. ACKNOWLEDGMENT. 119 C Privileged communications to notary. Communications made to a lawyer in his capacity of notary public, while before him for the purpose of acknowledging a mortgage, are not privileged, if he was not consulted in his professional capacity as to the execution of the mortgage, al- though he suggested and made some interlineations and filled some blanks.* 1 Aulbnan v. Daggs, 50 Mo. App. 280. 7. What defects disregarded. Formal defects or omissions in the certificate may be dis- regarded if what is contained can be construed as stating in substance all that is required.* Defective acknowledgment by a married woman is not void, ■except on the objection of herself or those claiming under her.* 1 Smith V. Boyd, 101 N. Y. 472, 5 N. E. 319. ■s Delafield v. Brady, 38 Hrni, 404. B. SuflSciency of evidence to impeach certificate of acknowl- edgment. It is a well-established rule that the certificate of acknowl- edgment of a deed cannot be impeached except by evidence which is clear and convincing beyond a reasonable doubt ;* and the unsupported testimony of a party to a deed, that he did not , execute it, will not prevail over the oificial certificate of the oificer taking the acknowledgment.* Even the testimony of a notary who took the acknowledgment of a deed by husband and wife, that the wife was not present and did not acknowledge the deed, has been held to be of little weight as against his certificate.' But a certificate of acknowledgment was held to have been overthrown by evidence of five witnesses, two of whom were physicians, that on the day on which the execution of the deed was acknowledged the grantor was sick in bed, and was subjected to a surgical operation.* 1 Russell V. Baptist Theological Union, 73 111. 337 ; Chivington v. Colorado Springs Co. 9 Colo. 597, 14 Pac. 212 ; Ford v. Ford, 27 App. D. C. 401, 6 L.E.A.(N.S.) 442, 7 Ann. Cas. 245; Lennon v. White, 61 Minn. 150, 120 BEIEF ON TACTS. 63 N. W. 620 ; Barker v. Avery, 36 Neb. 599, 54 N. W. 989 ; Morris v. Sargent, 18 Iowa, 90; Barnett v. Proskauer, 62 Ala. 486; Saginaw Bldg. & L. Asso. V. Tennant, 111 Micli. 515, 69 N. W. 1118; Barrett V. Davis, 104 Mo. 549, 16 S. W. 377; Smith v. Allis, 52 Wis. 337, 9 N. W. 155; Cover v. Manaway, 115 Pa. 338, 2 Am. St. Rep. 552, 8 Atl. 393; Pickens v. Knisely, 29 W. Va. 1, 11 S. E. 932; Williamson V. Carskadden, 36 Ohio St. 664; Bennett v. Edgar, 46 Misc. 231, 93 N. Y. Supp. 203. 2 Kerr v. Russell, 69 111. 669, 18 Am. Rep. 634; Lickmon v. Harding, 65 111. 505 ; Gritten v. Dickerson, 202 111. 372, 66 N. E. 1090 ; Johnson v. Van Velsor, 43 Mich. 208, 5 N. W. 265; Adams v. Smith, 11 Wyo. 200, 70 Pac. 1043; Harden v. Dorthy, 12 App. Div. 176, 42 N. Y. Supp. 834; Shell v. Holston Nat. Bldg. & L. Asso. — Tenn. — , 52 S. W. 909. 3 Wilson V. South Park, 70 111. 46. 4Paxton V. Marshall, 18 Fed. 361. For other cases on sufficiency of evidence to impeach certificate of ac- knowledgment, see note in 6 L.R.A. (N.S.) 442. ACQUIESCENCE. 1. Burden of proof. 2. Acts and declarations. 3. Relevancy. 1. Burden of proof. To bar a party by acquiescence the burden of proving that his acquiescence was with the full knowledge of all the facts and of all existing legal rights is upon the one who alleges acquiescence.^ 1 Pence v. Langdon, 99 U. S. 578, 581, 25 L. ed. 420, 421 (current suspicion and rumor are not enough) ; Zimmerman v. Fraley, 70 Md. 561, 17 Atl. 560; Adair v. Brimmer, 74 N. Y. 539, 554 (ratification by cestui que trust) . See Lux v. Haggin, 69 Cal. 255, 10 Pac. 674. ACQUIESCENCE. 121 In order to establish an acquiescence equivalent to assent in a certain mode of dealing with the subject-matter of a mail contract, the burden is on the contractor to show knowledge or information, by the depart- ment, of his conduct in the premises. United States v. Carr, 132 U. S. 644, 33 L. ed. 483, 10 Sup. Ct. Eep. 182. 2. Acts and declarations. Evidence of silent acquiescence in work done pursuant to negotiations for a contract is admissible upon the issue whether or not there was a completed contract to do the work.^ And a statement made in the presence of defendant is ad- missible primarily to show that he acquiesced in the statement either by express assent, or by silence, or by such conduct as fairly implies assent, although it is not admissible as being itself evidence of any fact narrated in such statement.^ Adjoining landowners who for a long term of years treat a fence as the boundary between them will be deemed to have acquiesced in the boundary thus established.^ And the facts that a police captain removed from office failed for three months and ten days to proceed against the action of the board, well knowing the ground of removal, his receipt of pension money in the interim, the surrender of the police paraphernalia, promptly seeking employment elsewhere, and silence on his part although aware of the fact that steps were being taken to fill his place, — were deemed sufficient to es- tablish acquiescence in the removal.* 1 Hodges V. Sublett, 91 Ala. 588, 8 So. 800. 2 People V. Mallon, 103 Cal. 513, 37 Pae. 512. 3 Andrews v. Meredith, 131 Iowa, 716, 109 N. W. 287; Amber v. Cain, — Iowa, — , 110 N. W. 1053. See also Holmes v. Judge, 31 Utah, 269, 87 Pac. 1009 ; and Younkers v. White, 136 Iowa, 23, 111 N. W. 824. 4 People ex rel. McLaughlin v. Police Comrs. 174 N. Y. 450, 95 Am. St. Rep. 596, 67 N. E. 78, reversing 79 App. Div. 82, 79 N. Y. Supp. 710. 3. Relevancy. If any claim of acquiescence is made to defeat plaintiff's claim, he may prove everything done by way of protest or re- monstrance.^ 1 Chapel V. Smith, 80 Mich. 100, 45 N. W. 69. See Assent; Consent; Estoppel; Ratification. 122 BEIEF OS FACTS. [ADDRESS. 1. Privileged communications. 2. City directory. And see Absence; Domicil; Fictitious Pebson; Eesidencb. 1. Privileged commuiiications. The privilege of professional communications precludes tte attorney from testifying to the address of his client if commu- nicated to him confidentially for the purpose of professional advice.^ Confidential communications between a husband and wife, which tend to show the address of either at a particular time, are privileged.* IRe Arnott, Law Times (London) Dec. 1888. But the court may require the attorney to disclose the client's address as the condition of obtaining a favor, such as the opening of a default, postponing the cause, and the like. 2 Abbott, New Pr. & Forms, 500. And see Bohling v. Bronson, 130 App. Div. 895, 115 N. Y. Supp. 29; and O'Connor v. O'Connor, 62 Misc. 53, 115 N. Y. Supp. 965, holding that an attorney may be required to disclose his client's address before the other party can be compelled to try the action. 8 The date and place from which letters appear to have been written by a man to his wife, and his signature, together with the envelope and the postmarks and address thereon, are not admissible in evidence to prove that he knew her residence at the time, on a prosecution against him for perjury in a divorce suit, in swearing that he did not know her whereabouts, because such letters were confidential communications between him and his wife. Selden v. State, 74 Wis. 271, 17 Am. St. 144, 42 N. W. 218. 2. City directory. A city directory is not, without testimony as to its correct- ness, admissible to prove the place of business of a person named therein.* 1 Langley v. Smith, 3 N. Y. S. K. 276. ADMISSIONS AND DECLAEATIONS. ADMISSIONS AND DECLARATIONS. 1. Witness not hearing or understanding whole conversation, 2. Recollection of exact words. 3. Identifying the speaker. 4. Reference to things not specified. 5. Statute requiring writing. 6. Undelivered writing. 7. Admissions or declarations in a, pleading or judicial proceeding. a. In general. b. In unauthenticated document used. c. Admission made on former trial for purpose of defeating con- tinuance. d. Testimony upon preliminary examination by vritnesses not avail- able at time of trial, p. Plea to indictment. 9. Records of one's society. 10. Best and secondary. 11. Knpwledge. 12. Admissions pending compromise, privileged. 13. Contradicting. 14. Change of opinion. 15. Entire statement or conversation. 16. Conduct against admissions. 17. Beolafatiens by injured person to physician examining him in order to qualify as a witness. 18. Statements by assured outside of his application as evidence against beneficiary. 19. Proof against one person of declarations by another to show partner- ship. 20. Declarations against title by former owner, who is available as a witness. 21. Declarations of one since deceased against his own marriage. ;22. Declarations of testator. a. To show undue influence. b. On issue of testator's intention in destroying will. c. To overcome or sustain presumption of revocation, where will cannot be found. d. To prove existence or contents of lost or destroyed will. 23. Declarations of deceased subscribing witness to will. 24. Declarations of infant too young to be sworn as a witness. 25. Admissibility of statements in presence of party as affected by his mental or physical condition at the time. 26. Reports by agent or employee to employer, to prove fact in issue. 27. Declarations out of court by one whose name is charged to have been forged. 124 BRIEF ON FACTS. See also Accotjnts; Account Stated; Confessions; Dying Declaba- TioNS; Letters; Pedigked; Privileged Communications; Teue- PHONE Conversations; Threats. Admissibility of evidence given through interpreter, see note to Com. v. Vose, 17 L.R.A. 813. Upon how near the main transaction a declaration must be made to con- stitute part of the res gestce, see note to Ohio & M. R. Co. v. Stein, 19 L.R.A. 733. 1. Witness not hearing or understanding whole conversation. To enable a witness to testify to an admission it is not nec- essary that he should have heard or understood the whole of the conversation.' 1 Denver & R. G. R. Co. v. Neis, 10 Colo. 56, 14 Pac. 105. See other au- thorities in Criminal Trial Brief; s. p. State v. Carson, 95 N. C. 593. See also Conversation. Evidence of what the defendant, charged with fraudulently taking water from water pipes, said about a secret pipe, may be given by anyone hearing the remark. St. Louis v. Arnot, 94 Mo. 275, 7 S. W. 15. Testimony as to what plaintiff said is not inadmissible because the wit- ness adds, "My men told me he said so," — where it is shown that the witness did not understand English, and that while he heard the statements of plaintiff he understood them only as they were inter- preted to him in plaintiff's presence. Blazinski v. Perkins, 77 Wis. 9, 45 N. W. 947. Statements of defendant in an action for slander, in regard to plaintiff, made several years before the trial, and offered to show malice, are not rendered inadmissible by the mere fact that defendant spoke In Grerman, and that the witness, who understood both English and Ger- man, testified to such statements in English. Born v. Rosenow, 84 Wis. 620, 54 N. W. 1089. 2. Recollection of exact words. It is not necessary that the witness should be able to testify to the exact language ; ' but he must be able to give the sub- stance.^ He may state the impression on his mind as to the fact of what was said,' but not what he understood to be meant by what he testifies was said.* IRuch V. Rock Island, 97 U. S. 693, 24 L. ed. 1101 (holding thus of wit- ness now produced to prove the testimony given, on a former trial, by a witness now dead; and the court says that claiming to repeat the precise language is a suspicious circumstance). ADMISSIONS AND DECLAEATIONS. 125 Compare cases in Criminal Trial Brief, giving illustrations of vital effect of slight mistakes. 8 Dennis v. Chapman, 19 Ala. 29, 54 Am. Dec. 186, with note. (Held, not error to reject the testimony of a witness who did not propose to state the language nor the substance of a party's admissions against interest, but merely to give his understanding of them.) Hale V. Silloway, 1 Allen, 21. (The witness cannot state what others understood.) 3 Whitman v. Morey, 63 N. H. 448, 2 Atl. 899 (not error to allow witness, who could not recall the language, to say that the speaker was favor- ably inclined to a person named. It was for the trial judge to deter- mine whether this was her impression of the substance of what was said, and competent, or the inference the witness drew from what was said, and therefore incompetent). 4Hibbard v. Russell, 16 N. H. 410, 41 Am. Dec. 733. (Here witness tes- tified the party said he was "good for the note," or "had got to pay the note." Not error to exclude testimony that he understood that the party intended to pay it. ) Evidence of casual statements or admissions by a, party, made in casual conversations and to disinterested persons, is very weak testimony, because of the liability of the witness to misunderstand or forget what was really said or intended by the party. Haven v. Markstrum, 67 Wis. 493, 30 N. W. 720. The verbal admissions of a party, when made understandingly and delib- erately, often afford satisfactory evidence; but as -a general rule the statements of witnesses as to verbal admissions of a party should be received with great caution. Allen v. Kirk, 81 Iowa, 658, 47 N. W. 906. An instruction that oral admissions of a party should be received with great caution, because a witness may not have correctly understood them, or may not have correctly recollected and repeated them, is erroneous. Zenor v. Johnson, 107 Ind. 69, 7 N. E. 751. Evidence of oral admissions after the lapse of ten years, without any special circumstance to aid the memory of the witness, is to be re- ceived with great caution. O'Bannon v. Virgus, 32 111. App. 473. 3. Identifying the speaker. The witness must be able to identify the person to whose admission he testifies.* 1 Whitney v. Brownewell, 71 Iowa, 251, 32 N. W. 285 (uncertainty as to which of two defendants made the admission, fatal). And admissions stated by a witness to have been made by several persons, but one of whom is in privity with the parties, must be wholly re- jected when those made By such person are not distinguished from those made by the other. Smith v. Williams, 89 Ga. 9, 32 Am. St. Eep. 67, 15 S. E. 130. 126 BRIEF ON FACTS. Arthur v. Arthur, 38 Kan. 691, 17 Pae. 187. (Witness, who was a stranger to the party, and derived all his information as to identity frota the speaker claiming to be such party, cannot testify to his statements as admissions ) . But see Identity. Testimony of a witness as to statements made by one whom he believed to be defendant is inadmissible for indefiniteness, when it is so vague and uncertain that its relation to the subject at issue is merely con- jectural. Laidlaw v. Sage, 158 N. Y. 73, 44 L.E.A. 216, 52 N. E. 679, reversing 2 App. Div. 374, 37 N. Y. Supp. 770. Proof of admissions which the witness testifies were made either by a party to the action or else by a stranger is inadmissible. Redding v. Godwin, 44 Minn. 355, 46 N. W. 563. As to necessity of identifying person speaking over telephone, see post, Telephone Conversation. 4. Eeference to things not specified. The "witness testifying to a conversation cannot state his understanding as to what or who was referred to by language which requires explanation, unless he is limited to his under- standing from the conversation itself.^ 1 Marcy v. Stone, 8 Cush. 4, 54 Am. Dec. 736 (error to allow witness, who had stated the whole conversation, to say what he understood was "the land" referred to, the question not being thus limited). Cutler V. Carpenter, 1 Cow. 81. (Witness cannot state belief as to what time the statement in the admission referred to, if there was nothing in the conversation from which he draws conclusion.) 5. Statute requiring writing. It is not competent to prove an act for the validity of which the law prescribes a writing, by evidence that the party orally admitted having performed or having executed such a writing, unless a foundation for secondary evidence is first laid.^ 1 Boynton v. Rees, 8 Pick. 329, 19 Am. Dec. 326 {dictwm; statute of frauds). Bivins v. MoElroy, 11 Ark. 23, 52 Am. Dec. 258 (statute of frauds). Fox V. Reil, 3 Johns. 477 (reason for nonproduction of subscribing witness to unacknowledged deed not dispensed with by proof that the grant- or admitted executing the deed). s. p., in criminal cases, see Criminal Trial Brief. Compare Day v. Leal, 14 Johns. 404, holding that a receipt acknowledging the execution of a bond and warrant of attorney is sufficient evidence of their existence as against the signer, without producing them. ADMISSIONS AND DECLAEATIONS. 127 So, too, declarations of a third person as to verbal waiver by insurance agent of a condition in the policy which provided that such a waiver could be made only by writing in the body of the policy are inad- missible in an action on the policy. Pennsylvania F. Ins. Co. v. Faires, 13 Tex. Civ. App. Ill, 35 S. W. 55. 6. Undelivered writing. A -writing which the writer has never delivered nor shown is not competent as proving his admission of a fact therein stated, unless it be one of a private nature, such as a personal diary.* But if delivered or shown, the instrument is not incompe- tent' to prove an admission because it lacks the authentication necessary to make it effective for the purpose for which it was intended.* 1 Wiloox V. Wilcox, 46 Hun, 32 ( letter unsent, found among papers of the writer after his death). Robinson v. Cushman, 2 Denio, 149 (undelivered specialty). So, also, of an admission contained in a deposition taken in the cause, but not put in evidence because the party is in court. Priest v. Way, 87 Mo. 16 (error to allow such admissions to be read). Declarations of a third person, since deceased, that he knew that a deed of gift of land was never delivered and had been destroyed by the donor, are inadmissible against the heir of the donee. Blalock v. Mi- land, 87 Ga. 573, 13 S. E. 551. Instructions privately given to the officer taking the acknowledgment of an instrument, to make a record of the terms on which it was to be de- livered, and private conversations with him in regard to it, are not admissible in evidence, in favor of the party giving such instructions, on the question whether it was properly delivered. Porter v. Metealf, 84 Tex. 468, 19 S. W. 696. S Kaufman v. Schoeffel, 46 Hun, 571; Jackson ex dem. Bradt v. Brooks, 8 Wend. 426, affirmed in 15 Wend. Ill, but no opinion reported (bond). Morrell v. Crawley, 17 Abb. Pr. 76 (sealed lease executed by agent, and void for want of sealed authority, competent as against the principal to prove value of use and occupation). 7. Admissions or declarations in a pleading or judicial proceeding. a. In general. — An admission by a party in his pleading is evidence against him in another suit, but not conclusive.* An admission contained in a pleading or affidavit verified by 128 BRIEF ON FACTS. the party is none the less competent against him because ex- pressed to be on information and belief.^ An admission in court in the testimony of a party has the same effect as if made in his pleadings.^ Merely casual, hasty, inconsiderate admissions of counsel in the course of a trial do not bind his client; the evidence of such admissions should be excluded, although the client was present when the admissions were made, and did not correct his counsel or disclaim his authority.* Admissions made by a party in answer to interrogatories filed in another case are admissible against him, where it is left open to him to introduce the interrogatories and any other facts tending to qualify or explain the admissions, or to explain them upon the stand.* iRich V. Minneapolis, 40 Minn. 82, 41 N. W. 455. Willcins V. Clawson, 50 Tex. Civ. App. 82, 110 S. W. 103 ; Field v. Surpless, 83 App. Div. 268, 82 N. Y. Supp. 127. An admission contained in an original answer is available, notwithstand- ing the service of an amended pleading omitting the admission. Breese V. Graves, 67 App. Div. 322, 73 N. Y. Supp. 167. But a party who seeks to use an admission in his adversary's pleading must take the whole paragraph. Taylor v. Taylor, 173 N. Y. 266, 65 N. E. 1098, affirming 63 App. Div. 231, 71 N. Y. Supp. 411. s Pope v. Allis, 115 U. S. 363, 370, 29 L. ed. 393, 397, 6 Sup. Ct. Rep. 69 (pleading). Chicago & N. W. R. Co. v. Ohle, 117 U. S. 123, 29 L. ed. 837, 6 Sup. Ct. Rep. 632 (affidavit). For the mode of putting in evidence the pleading in a civil action, see Brief for Trial of Civil Jury Cases, 302. 3 State v. Brooks, 99 Mo. 137, 12 S. W. 633. Statements made upon a previous trial, by a party to an action, are ad- missible in evidence against him, not only to contraciict his present testimony, but as evidence upon the issues. McPhillips v. New York, N. H. & H. R. Co. 39 N. Y. S. R. 50, 14 N. Y. Supp. 928, affirming 37 N. Y. S. R. 263, 13 N. Y. Supp. 917. Statements made by a husband as to communications between him and his wife while giving testimony, although admitted without objection, are inadmissible on a second trial when objection is made. Kelley v. An- drews, 102 Iowa, 119, 71 N. W. 251. 4 Davidson v. Gifford, 100 N. C. 18, 6 S. E. 718. An admission by a party that certain witnesses would swear to certain facts if a continuance was granted and their testimony obtained does ADMISSIONS AND DECLAEATIONS. 129 not admit the truth of their statements. Burris v. Court, 48 Neb. 179, 66 N. W. 1131. SGay V. Rogers, 109 Ala. 624, 20 So. 37. Though the plaintiff's deposition taken by the defendant has been sup- pressed, the answers are admissible as admissions, on proof that they were given and subscribed by him. Parker v. Chancellor, 78 Tex. 524, 15 S. W. 157. h. In unauthenticated document used. — ^A copy of an affi- davit which has been used by the party as evidence in the ■course of the proceedings in the same cause is competent evi- dence against him as an admission, irrespective of whether the authentication was sufficient to render it competent as a copy.^ 1 Urtetiqui v. I^Arcy, 9 Pet. 692, 9 L. ed. 276. c. Admission made on former trial for purpose of defeating continuance. — The authorities are all in accord in holding that .an admission made at the time a continuance is sought is not, if the continuance is granted, admissihle in evidence at a sub- ;sequent trial, when the emergency for which the admission was made has ceased to exist.^ J State V. Butler, 151 N. C. 672, 25 L.R.A.(N.S.) 169, 65 S. E. 993, 17 Ann. Cas. 402; Eyan v. Beard, 74 Ala. 306; State v. Felter, 32 Iowa, 49; Driggs V. Morgan, 10 Eob. (La.) 119; State v. Bryant, 93 Mo. 273, 6 S. W. 102; Padgitt v. Moll, 159 Mo. 143, 52 L.R.A. 854, 81 Am. St. Eep. 347, 60 S. W. 121; Cutler v. Cutler, 130 N. C. 1, 57 L.R.A. 209, 89 Am. St. Eep. 854, 40 S. E. 689. Upon the somewhat analogous question, whether a waiver of a privi- lege as to confidential communications is available on a, second trial, see note in 6 L.R.A.(N.S.) 1082. d. Testimony given upon preliminary examination hy wit- nesses not available at time of trial. — The objection generally Taised to the admission at a criminal trial of testimony given at the preliminary examination by a witness who cannot be pro- duced is that the accused is thereby deprived of his right to be confronted with the witnesses against him. An overwhelm- ing majority of the courts, however, have adopted the view that this right of the accused is not invaded if he had an opportunity to confront the witnesses and cross-examine them at the pre- Abe. Facts^— 9. 130 BRIEF ON FACTS. liminary hearing, provided he was present as the party charged ■with the offense which was being investigated and the ofEense there charged and the one being tried are substantially the same.^ It is not essential to the admission of such testimony that the accused be actually represented by counsel at the ex- amination,^ and any objection to the admission of such testi- mony may be waived.' The circumstances most generally recognized as justifying the admission of such testimony are that the witness is dead,* insane,' too ill to attend the trial,^ beyond reach of the process of the court,'' or absent by procurement.' 1 For an exceptionally able discussion for and against the admission of such testimony, see the opinions in State v. McO'Blenis, 24 Mo. 402, 69 Am. Dec. 435. To the same effect are: United States v. Greene, 146 Fed. 796; State v. King, 24 Utah, 482, 91 Am. St. Eep. 808, 68 Pac. 418; Kendrick v. State, 10 Humph. 479; State v. Alphonse, 34 La. Ann. 9; Johnson v. State, 1 Tex. App. 333; Com. v. Richards, 18 Pick. 434, 29 Am. Dec. 608; State v. Harmon, 70 Kan. 476, 78 Pac. 805; Barnett v. People, 54 111. 325; State v. Fitzgerald, 63 Iowa, 268, 19 N. W. 202; Dolan v. State, 40 Ark. 455; Lowe v. State, 86 Ala. 47, 5 So. 435; People v. Gilhooley, 108 App. Div. 234, 95 N. Y. Supp. 636, 19 N. Y. Grim. Rep. 541, affirmed without opinion in 187 N. Y. 551, 80 N. E. 1116; State v. Hefferman, 22 S. D. 513, 25 L.R.A.(N.S.) 868, 118 N. W. 1027. Contra: United States v. Angell, 11 Fed. 34; State v. Potter, 6 Idaho, 584, 57 Pac. 431, overruling Territory v. Evans, 2 Idaho, 651, 7 L.R.A. 646, 23 Pac. 232. 2 Butler V. State, 83 Ark. 272, 103 S. W. 382; McNamara v. State, 60 Ark. 400, 30 S. W. 762; People v. Gilhooley, 108 App. Div. 234, 95 N. Y. Supp. 636, 19 N. Y. Crim. Rep. 541, affirmed without opinion in 187 N. Y. 551, 80 N. E. 1116. 3 Bostick V. State, 3 Humph, 344 ; Wells v. State, — Ark. — . 16 S. W. 577. 4 State V. Elliott, 90 Mo. 350, 2 S. W. 411; State v. George, 60 Minn. 503, 63 N. W. 100; Roberts v. State, 68 Ala. 515; O'Brien v. Com. 6 Bush. 563; State v. Byers, 16 Mont. 565, 41 Pac. 708; State v. Taylor, 61 N. C. (Phill. L.) 508; People v. Dowdigan, 67 Mich. 95, 38 N. W. 920; Johnston v. State, 2 Yerg. 58; Potts v. State, 26 Tex. App. 663, 14 S. W. 456. 5 Marler v. State, 67 Ala. 55, 42 Am. Rep. 95. 6 Spencer v. State, 132 Wis. 509, 122 Am. St. Rep. 989, 112 N. W. 462, 13 Ann. Cas. 969; People v. Droste, 160 Mich. 66, 125 N. W. 87: Reg. v. Harney, 4 Cox, C. C. 441; Contra: State v. Wheat, 111 La. 860, 35 So. 953 (where witness could probably be present at the next term) ; ADMISSIONS AND DECLAEATIONS. 131 and People v. Bojorquez, 55 Cal. 463, holding that where the statute permits depositions taken at the examination to be read at the trial in certain cases, the fact that the witness was too ill to attend was in- sufficient, this not being one of the statutory grounds. TCowell V. State, 16 Tex. App. 58; State v. Stewart, 34 La. Ann. 1037; Knight V. State, 103 Ala. 48, 16 So. 7. But see, Finn v. Com. 5 Rand. (Va.) 701;' Hall v. State, 6 Baxt. 522; Pittman v. State, 92 Ga. 480, 17 S. E. 856; State v. Houser, 26 Mo. 431. 8 Rex V. Barber, 1 Root, 76; State v. Houser, 26 Mo. 431 (dictum) . For a discussion of all the different phases of this question, with a full review of the authorities, see note in 25 L.R.A. (N.S.) 868. 8. Plea to indictment. The plea of nolo contendere admits the facts only for the purpose of the pending prosecution; and, if accompanied by a protestation of the defendant's innocence, cannot, like a plea of guilty, be used in a civil suit, as an admission of the facts charged in the indictment.^ Admissions made by one arraigned in a criminal proceeding, or while on trial, are admissible against him.^ 1 Criminal Trial Brief; Com v. Horton, 9 Pick. 206; Com. v. Tilton, 8 Met. 232; Birchard v. Booth, 4 Wis. 67; Buck v. Com. 42 Phila. Leg. Int. 353. 2 Admissions made while in the custody of an officer, and while arraigned in a magistrate's court, are admissible in evidence in a civil action against the one making them, where they were not made under the influence of fear produced by threats, promises, or deceptions. Notara V. De Kamalaris, 22 Misc. 337, 49 N. Y. Supp. 216. The testimony of a justice of the peace as to an admission of a defend- ant on trial before him is competent evidence. State v. Duffy, 57 Conn. 525, 18 Atl. 791. 9. Kecords of one's society. An entry by the secretary in the records of a society of which deceased was a member, stating his age, is not evidence of his declaration of his age, against one claiming under him, unless it be shown that the statement proceeded from the deceased, or that he acquiesced in it ; and the fact that he afterward became secretary, and had custody of the book, is not enough to show acquiescence.* 132 BEIEF ON FACTS. 1 Connecticut Mut. L. Ins. Co. v. Schwenk, 94 U. S. 593, 24 L. ed. 294. See also Knowledge. As to whether it may be made evidence by calling the secretary, or by proving that the entry was made in the ordinary course of duty, and accounting for his absence, see Accounts. 10. Best and secondary. The contents of a statement which was made in writing can- not be orally proved without accounting for nonproduction of the writing as a foundation for the secondary evidence.^ But the mere fact that a document was present at the conversation may be proved without accounting for its nonproduction.^ 1 Berrian v. Sanford, 1 Hun, 626 (memorandum by the parties as to the value of property). State V. DeWolf, 8 Conn. 93, 20 Am. Dec. 90. (Here it was held error to receive testimony of what a deaf mute wrote, where there was no proof of the loss of the paper, except the witness's statement that he did not know where it was.) [In recent cases the courts have inclined to dispense with strict proof where the paper is one that in the usual course is destroyed or sur- rendered as soon as used. And this ought to be the rule with ordinary slips used in conversation with a, deaf mute.] 2 Tatum V. State, 82 Ala. 5, 2 So. 531. 11. Knowledge. To render an admission competent against the party who made it, it is not necessary that the facts should have been within his knowledge.* 1 Chapman v. Chicago & N. W. E. Co. 26 Wis.- 295, 7 Am. Kep. 81. But repetition of hearsay is not an admission of its truth. Stephens v. Vroman, 16 N. Y. 381, reversing 18 Barb. 250. In an action against an employer for personal injuries to an employee, evidence that a foreman said that it was just like the assistant fore- man to set plaintiff at work at a dangerous machine he knew nothing about is inadmissible, when the foreman's whole knowledge of the ac- cident was derived from what he had been told by plaintiff. Leistritz V. American Zylonite Co. 154 Mass. 382, 28 N. E. 294. 12. Admissions pending compromise, privileged. Offers made for the purpose of compromise or settlement are not admissible as admissions of liability.* ADMISSIONS AND DECLAEATIONS. 133 The rule of exclusion applied in civil cases is not applicable in criminal cases.^ 1 Patrick v. Crowe, 15 Colo. 543, 25 Pac. 985; Montgomery v. Allen, 84 Mich. 656, 48 N. W. 153; Davey v. Lohrmann, 39 N. Y. S. R. 207, 14 N. Y. Supp. 922; Eldridge v. Hargreaves, 30 Neb. 638, 46 N. W. 923; Wright V. Morse, 53 Neb. 3, 73 N. W. 214; Darby v. Roberts, 3 Tex. Civ. App. 427, 22 S. W. 529; Feibelman v. Manchester F. Asaur. Co. 108 Ala. 180, 19 So. 540; Denver, T. & G. R. Co. v. De Graff, 2 Colo. App. 42, 29 Pac. 664. An offer to settle a claim or action based on fraud is not admissible. Fin- lay Brewing Co. v. Prost, 111 Mich. 635, 70 N. W. 137; Boice v. Palm- er, 55 Neb. 389, 75 N. W. 849. Nor an offer of compromise in an action for criminal conversation. Smith V. Meyers, 54 Neb. 1, 74 N. W. 277, affirming on rehearing 52 Neb. 70, 71 N. W. 1006. Letters containing offers of settlement are inadmissible in an action based upon the controversy to which they refer. Fisher v. Fidelity Mut. Life Asso. 188 Pa. 1, 41 Atl. 467; Gibbes v. McCraw, 45 S. C. 184, 22 S. E. 790; Fowles v. Allen, 64 Conn. 350, 30 Atl. 144. A portion of a letter containing no statement which can be separated from the offer of compromise and still convey the writer's idea is inadmissi- ble. Louisville, N. A. & C. R. Co. v. Wright, 115 Ind. 378, 7 Am. St. Rep. 432, 16 N. E. 145, 17 N. E. 584. So, too, a letter written after a controversy arises which contains an offer of compromise, if self-serving, and not relevant to any issue, is inad- missible. Boehringer v. A. B. Richards Medicine Co. 9 Tex. Civ. App. 284, 29 S. W. 508. Admissions of independent and particular facts may be received in evidence. Scofield V. Parlin & O. Co. 10 C. C. A. 83, 18 U. S. App. 692, 61 Fed. 804; Manistee Nat. Bank v. Seymour, 64 Mich. 69, 31 N. W. 140; Hess V. Van Auken, 11 Misc. 422, 32 N. Y. Supp. 126; Wright v. Gillespie, 43 Mo. App. 244. Unless expressly stated to have been made without prejudice or in confi- dence. Miene v. People, 37 111. App. 589; Kutcher v. Love, 19 Colo. 542, 36 Pac. 152; White v. Old Dominion S. S. Co. 102 N. Y. 660, 6 N. E. 289 ; Bowers v. Hanna, 101 Iowa, 660, 70 N. W. 745. An admission of an independent fact, not connected with an offer of com- promise of a legal controversy, although made during the negotiations, is competent evidence. Louisville, N. A. & C. R. Co. v. Wright, 115 Ind. 378, 7 Am. St. Rep. 432, 16 N. E. 145, 17 N. E. 584; Binford v. Young, 115 Ind. 174, 16 N. E. 142. Offers of compromise or settlement of a debt sued on cannot be used in evi- dence against defendant, unless he admitted some fact or distinct lia- bility. Ciaffe v. Mackenzie, 43 La. Ann. 1062, 10 So. 369. 134 BRIEF ON FACTS. An agreement to compromise an action of replevin, which provided that if the compromise failed "the cause should proceed as though the agree- ment had never been made," is inadmissible upon further proceedings in the case. Frick & Co. v. Wilson, 36 S. C. 65, 15 S. E. 331. Evidence that, before a suit for damages for injuries inflicted by a, vicious dog was brought, the defendant offered the party injured money, is ad- missible to show an admission of liability, if not made confidentially or for the sake of peace. Brice v. Bauer, 108 N. Y. 428, 2 Am. St. Kep. 454, 15 N. E. 695. A conversation between the parties to an action shortly before the trial, in which defendant made admissions, is not rendered inadmissible by being brought about by the plaintiff through a proposition of settle- ment, where such admissions do not appear to have been made with any view to a compromise, and it is not shown that any terms of set- tlement were mentioned or discussed. Akers v. Kirke, 91 Ga. 590, 18 S. E. 366. Evidence of a demand by plaintiff for a less sum than that claimed in the action, with a statement that he should sue if not paid, is admissible, in the absence of proof that the same was made as a compromise offer, or while negotiating for a peaceful settlement, or in view of a compro- mise. Swenson v. Kleinschmidt, 10 Mont. 473, 26 Pac. 198. Testimony of plaintiff suing for personal injuries, that defendant stated to him he thought plaintiff could get a stated sum in compromise of his claim, and asked him how much he wanted, is inadmissible as being ad- missions made with a view to a compromise or amicable adjustment of the matter. Collier v. Coggins, 103 Ala. 281, 15 So. 578. Evidence of advice by one defendant to his codefendants, to settle a suit, is competent as an admission of liability, and is not within the rule excluding offers of compromise. Smith v. Whittier, 95 Cal. 279, 30 Pac. 529. A party cannot testify to an offer of compromise made by him. York v. Conde, 66 Hun, 316, 20 N. Y. Supp. 961. A defendant is not entitled to show what it has offered as a settlement of the claim sued upon, or its reasons for making the offer. Galveston, H. & S. A. K. Co. V. Green, — Tex. Civ. App. — , 35 S. W. 819. A party cannot render an admission incompetent by testifying that it was made to bring about a compromise, unless there is an honest controver- sy between the parties, and a treaty, pending or proposed, to settle it without litigation. Steeg v. Walls, 4 Ind. App. 18, 30 N. E. 312. 8 State V. Soper, 16 Me. 293, 33 Am. Dec. 665. Contra: State v. Lavin, 80 Iowa, 555, 46 N. W. 553. An offer made by defendants in bastardy proceedings to the father of the prosecutrix, to contribute money for the purpose of sending the latter away, is admissible in evidence, as it is not an offer to compromise. Eobb V. Hewitt, 39 Neb. 217, 58 N. W. 88. The only kind of an admission made during an attempt at compromise ADMISSIONS AND DECLARATIONS. 135 which can be received in evidence is where there was a distinct, un- qualified admission of an independent fact made, not as a part of an attempted adjustment, but because it was a fact. Roome v. Robinson, 99 App. Div. 150, 90 N. Y. Supp. 1055. Offers to compromise are not admissible unless accepted. New York L. Ins. Co. V. Rankin, 89 C. C. A. 103, 162 Fed. 103. 13. Contradicting^. The rule that the declarations of a party are provable for the purpose of showing their falsity* does not require that his attention be first called to the time and place, etc.^ 1 English V. Steele, 4 Thomp. & C. 211 (so held error though he had died since his direct examination). See Criminal Trial Brief. A party who is permitted to contradict the testimony of a witness respect- ing an alleged statement made by him to the witness should not be per- mitted to state what else he said at the time. Fitzpatrick v. Blooming- ton City R. Co. 73 111. App. 516. A party who testifies that he had no conversation with a witness at the time the latter has stated cannot, without asking him the proper im- peaching question, testify as to a conversation had with him at a sub- sequent date, giving the substance thereof, as that would be to make original evidence his own declarations made in distinct and different conversations. Miller v. Cook, 124 Ind. 101, 24 N. E. 577. 2 Civil Jury Trial, 241. Declarations of a party to an action prejudicial to his Interest are admis- sible in evidence without laying the predicate necessary to impeach an uninterested witness. Eddings f. Boner, 1 Ind. Terr. 173, 38 S. W. 1110. 14. Change of opinion. A party whose admission of liability has been proved against him may testify in his own behalf, that on reflection he has changed his mind.* 1 Stowe V. Bishop, 58 Vt. 498, 56 Am. Rep. 569, 3 Atl. 494. 15. Entire statement or conversation. Under the rule that a party whose admissions are proved has a right to have all that was said by the same person in the same conversation in any way qualifying or explaining the part adduced against him, or tending to destroy or modify the use 136 BEIEF ON FACTS. sought to be made of it, but no more,* the burden is upon him to show affirmatively the simultaueousness of the qualifying parts he claims to prove.^ When a -witness has related anything which he stated at a certain time and place and under a given state of facts, it is competent to have him state all that he uttered on such occa- sion.' 1 Rouse V. Whited, 25 N. Y. 170, 82 Am. Dec. 337, reversing 25 Barb. 279. Barnes v. Allen, 1 Abb. App. Dec. Ill (holding that, although the jury are not necessarily bound to give equal credit to all parts of an admission, it is not proper to instruct them, in effect, that they may arbitrarily believe the fact admitted, and disbelieve the reasons assigned for it). Where an admission is made the foundation of a claim, the whole state- ment must be taken together. Perkins v. Lane, 82 Va. 59. The rule that, when a party's declarations or admissions are given in evi- dence against him, the whole that was said at the time on the same subject must be taken together, does not render incompetent evi- dence of a, conversation overheard between such party and another, although the witness did not hear the whole conversation. State v. Murphy, 48 S. C. 1, 25 S. E. 43. A party is entitled to the whole of a conversation with a witness, where the opposite party on examination has brought out only a part of it. Lamwersick v. Boehmer, 77 Mo. App. 136. In detailing a, conversation with the accused, the witness is not to be re- stricted to what the accused said to him, but may give the entire con- versation between them. State v. Travis, 39 La. Ann. 356, 1 So. 817. A party who seeks to use an admission in his adversary's pleading must take the whole paragraph. Taylor v. Taylor, 173 N. Y. 266, 65 N. E. 1098, aflSrming 63 App. Div. 231, 71 N. Y. Supp. 411. I'or other authorities, see Criminal Trial Brief. 8 Downs V. New York C. R. Co. 47 N. Y. 83. BWatrous v. Cunningham, 71 Cal. 30, 11 Pae. 811. 16. Conduct against admissions. Wlien there is conflicting testimony as to the admissions of the parties, the law will trust to the inferences to be drawn from their conduct, rather than attempt to reconcile such con- flict without regard to their conduct. Their acts, clearly shown, are more reliable than the recollection of words; and delay to sue is significant in this connection. "■ 1 Russell y. Miller, 26 Mich. 1. ADMISSIONS AND DEOLAEATIONS. 137 In an equitable action by a partner to obtain an accounting where the al- leged oral agreement ot partnership is denied, every act or declaration of the parties preceding or following the alleged agreement, that can throw any light upon what really took place when it is claimed to have been made, is admissible. Sanger v. French, 157 N. Y. 213, 51 N. E. 979, 91 Hun, 599, 36 N. Y. Supp. 653. 17. Declarations by injured person to physician examining him in order to qualify as a witness. Where a physician is called on, not for the purpose of treat- ment, but to enable him to give evidence in a pending or pro- posed suit, no such sanction of the truth of v^hat the patient says to him exists as in the case of consultation for treatment; on the contrary, he is under a strong motive to deceive the phy- sician, and, therefore, statements made under such circumstan- ces are excluded as being self-serving in character.^ The rule applies both to statements as to past sufferings,^ and to state- ments made by the injured person as to his present sufferings at the time the physician examined him.' Even natural expres- sions of present suffering, and exclamations of pain when being examined by the physician are excluded,* and the expressions of pain excluded under this rule need not be vocal, but may be dumb indications thereof, such as flinching, twitching, wincing, writhing, etc.* But statements of existing pain made to the examining physician have been held to be admissible, not for the purpose of establishing the truth of the statements, but as the basis upon which the opinion of the witness was founded.* And it seems to be a well-established rule of law, that where the injured person has been examined by expert witnesses employed by the defendant, for the purpose of determining whether the plaintiff is suffering from disease or injury, and with a view to those witnesses testifying as to the results of such examination and giving their opinions thereon, the plaintiff has the right to have them take into consideration his statements made upon such examination, in making up their opinions as to his present condition, and that, therefore, such statements will be admis- sible in evidence.' 1 Pennsylvania Co. v. Files, 65 Ohio St. 403, 62 N. E. 1047 ; Consolidated Traction Co. v. Lambertson, 60 N. J. L. 452, 38 Atl. 683. 138 BRIEF ON FACTS. 8 Delaware, L. & W. R. Co. v. Roalefs, 16 C. C. A. 601, 28 U. S. App. 569, 70 Fed. 21 ; Rowland v. Philadelphia, W. & B. R. Co. 63 Conn. 415, 28 Atl. 102; Illinois C. R. Co. v. Sutton, 42 111. 438, 92 Am. Dec. 81; Shaughnessy v. Holt, 236 111. 485, 21 L.R.A. ( N.S. ) 826, 86 N. E. 256 ; Atchison, T. & S. F. R. Co. v. Frazier, 27 Kan. 463 ; Rowell v. Lowell, 11 Gray, 420; Gibler v. Quincy, 0. & K. C. R. Co. 129 Mo. App. 93, 107 S. W. 1021 ; Davidson v. Cornell, 132 N. Y. 228, 30 N. E. 573 ; Lake Shore & M. S. R. Co. v. Yokes, 12 Ohio C. C. 499, 5 Ohio C. D. 599; Stewart v. Everts, 76 Wis. 35, 20 Am. St. Rep. 17, 44 N. W. 1092; Keller v. Oilman, 93 Wis. 9, 66 N. W. 800. 3 Martin v. Sherwood, 74 Conn. 482, 51 Atl. 526; Chicago & E. I. R. Co. v. Donworth, 203 111. 192, 67 N. E. 797; Chicago City R. Co. v. Bundy, 210 111. 39, 71 N. E. 28; Missouri, K. H, T. R. Co. v. Johnson, 95 Tex. 409, 67 S. W. 768; St. Louis S. W. R. Co. v. Martin, 26 Tex. Civ. App. 231, 63 S. W. 1089; Abbot v. Heath, 84 Wis. 314, 54 N. W. 574; Kath v. Wisconsin C. R. Co. 121 Wis. 503, 99 N. W. 217. 4Darrigan v. New York & N. E. R. Co. 52 Conn. 285, 52 Am. Rep. 590; Casey v. Chicago City R. Co. 237 111. 140, 86 N. E. 606 ; Grand Rapids & I. R. Co. V. Huntley, 38 Mich. 537, 31 Am. Rep. 321; Heddle v. City Electric R. Co. 112 Mich. 547, 70 N. W. 1096; Jones v. Portland, 88 Mich. 598, 16 L.R.A. 437, 50 N. W. 731. But see Atchison, T. & S. F. R. Co. v. Frazier, 27 Kan. 463, holding that the physician may testify to "such complaints, exclamations, and ex- pressions of groajis as usually and naturally accompany and furnish evidence of a present and existing pain or malady." And Consoli- dated Traction. Co. v. Lambertson, 60 N. J. L. 452, 38 Atl. 683, holding that utterances made under such circumstances are themselves symp- toms, and, while they may be feigned, are nevertheless competent testi- mony, of the honesty and weight of which the jury must judge. Such statements were also admitted in Gibler v. Quincy, 0. & K. C. R. Co. 129 Mo. App. 93, 107 S. W. 1021; and in Chicago, St. L. & P. R. Co. V. Spilker, 134 Ind. 380, 33 N. E. 280, 34 N. E. 218 (the court say- ing that, while the fact that the physician was employed to make the examination with a view to his testifying at the trial might affect the credibility of his testimony, it did not make it incompetent) ; and in Matteson v. New York C. R. Co. 35 N. Y. 487, 91 Am. Dec. 67 (the court saying that the jury was to judge whether the representa- tions were false or the testimony collusive). s Greinke v. Chicago City R. Co. 234 111. 564, 85 N. E. 327 ; McKormick v. West Bay City, 110 Mich. 265, 68 N. W. 148; Comstock v. Georgetown, 137 Mich. 541, 100 N. W. 788; Mosher v. Russell, 44 Hun, 12. But in Jones v. Niagara Junction R. Co. 63 App. Div. 607, 71 N. Y. Supp. 647, it was held proper for the physician to testify as to certain indi- cations of sufFpring shown by the injured person during the examina- tion, such as changing of the features as the pain became worse, his inability to take off or put on his coat, and the absence of any in- dication that he was feigning. ADMISSIONS AND DECLAEATIONS. 139 So, in Missouri, K. & T. R. Co. v. Johnson, 95 Tex. 409, 67 S. W. 768, it was held that exclamations, shrinkings, and other expressions which appear to be the instinctive or spontaneous betrayal of pain are admissible. 6 Cleveland, C. C. & I. R. Co. v. Newell, 104 Ind. 264, 54 Am. Rep. 312, 3 N. E. 836; Cronin v. Fitchburg & L. Street R. Co. 181 Mass. 202, 92 Am. St. Rep. 408, 63 N. E. 335. 7 West Chicago Street R. Co. v. Carr, 170 111. 478, 48 N. E. 992; Chicago City R. Co. v. Bundy, 210 111. 39, 71 N. E. 28; Louisville, N. A. & C. R. Co. V. Falvey, 104 Ind. 409, 3 N. E. 389, 4 N. E. 908; Joslin V. Grand Rapids Ice & Coal Co. 53 Mich. 322, 19 N. W. 17; Quaife V. Chicago & N. W. R. Co. 48 Wis. 513, 33 Am. Rep. 821, 4 N. W. 658. 18. Statements by assured outside of his application as evidence against beneficiary. It may be laid down as a general rule that, where the de- fense in actions on life insurance policies is based upon the alleged falsity of statements contained in the application, ad- missions or declarations of the assured, whether made before or after the policy was issued, are not admissible against the beneficiary, unless they were made at a period not too remote in time from the making of the contract of insurance, and were of such nature as to be of real probative force in determining the truth or falsity of such statements.^ But this principle does not seem to be accepted in its entirety by all the authori- ties, and declarations of the assured have, in some cases, been admitted though remote in time from the date of his applica- tion for insurance.^ In those jurisdictions which recognize the general rule that such admissions are not admissible against the beneficiary unless they are so connected with the negotia- tions for the contract of insurance as to be of value in deter- mining the issues raised in the suit, it follows, of course, that, if they are so connected, they will be admissible.' And where the defense in actions upon insurance policies is based upon false and fraudulent statements in the insured's application as to the state of his health, his declarations have been held to be admissible to show knowledge on his part of his real condition, where the facts in regard thereto have been proved by other competent evidence.* Where the defense is based upon some matter not connected with the application, such as the nonpay- 140 BRIEF ON FACTS. ment of premiums and the like, the reason as well as the weight of authority sustains the proposition that declarations or admis- sions of the assured are not admissible against the beneficiary.* Where the defense is suicide, declarations of the assured tend- ing to show that he took his own life are generally held to be admissible, if they are so closely connected with his death in point of time and sequence as to form part of the same trans- action,® but otherwise where the declarations were made at a period so remote in time as to throw no light upon the trans- action.'' Some courts draw a distinction between ordinary life insur- ance, where the contract is held to be between the insurer and the beneficiary and a vested interest passes to the beneficiary, and contracts of mutual benefit insurance, where the contract is between the society and the member and the beneficiary has but an expectant interest, admitting the declarations in the lat- ter case, while recognizing that they would be inadmissible in the former ease.' iPenn Mut. L. Ins. Co. v. Wiler, 100 Ind. 92, 50 Am. Eep. 769; Henn V. Metropolitan L. Ins. Co. 67 N. J. L. 310, 51 Atl. 689; Union Cent. L. Ins. Co. v. Cheever, 36 Ohio St. 201, 38 Am. Rep. 573; ■Grangers L. Ins. Co. v. Brown, 57 Miss. 308, 34 Am. Rep. 446; Eawls V. American Mut. L. Ins. Co. 27 N. Y. 282, 84 Am. Dee. 280, af- firming 36 Barb. 357; Fraternal Mut. L. Ins. Co. v. Applegate, 7 Ohio St. 292; 4 Joyce, Ins. § 3819. Z New Home Life Asso. v. Owen, 39 III. App. 413 ; Mutual L. Ins. Co. V. Blodgett, 8 Tex. Civ. App. 45, 27 S. W. 286 (declarations as to age) ; Co-operative Life Asso. v. Leflore, 53 Miss. 1. And in Terwilliger v. Industrial Ben. Asso. 83 Hun, 320, 31 N. Y. Supp. 938, while it was intimated that declarations made prior to the is- suance of the policy would not be competent against the beneficiary if made at a period too remote in time from the transaction, it was stated that as to declarations as to age the rule was different, and that any declarations in regard thereto, made before the issuance of the policy, would be admissible against the beneficiary, inasmuch as a person could never change the date of his birth. 8 Kelsey v. Universal L. Ins. Co. 35 Conn. 225 ; Asbury L. Ins. Co. v, Warren, 66 Me. 523, 22 Am. Rep. 590; Welch v. Union Cent. L. Ins, Co. 108 Iowa, 224, 50 L.R.A. 774, 78 N. W. 853; Singleton v. St, Louis Mut. Ins. Co. 66 Mo. 63, 27 Am. Rep. 321; Cahen v. Con tinental L. Ins. Co. 9 Jones & S. 296; Valley Mut. L. Ins. Co. Burke, 12 Ins. L. J. 337; Aveson v. Kinnaird, 6 East, 188, 2 Smith, 286, 8 Revised Rep. 455. ADMISSIOSrS AND DECLARATIONS. 141 • Haughton T. Aetna L. Ins. Co. 165 Ind. 32, 73 N. E. 592, 74 N. E. 613; Swift V. Massachusetts Mut. L. Ins. Co. 63 N. Y. 186, 20 Am. Eep. 522; Dilleber v. Home L. Ins. Co. 69 N. Y. 256, 25 Am. Rep. 182; Kipp V. Metropolitan L. Ins. Co. 41 App. Div. 298, 58 N. Y. Supp. 494; Union Cent. L. Ins. Co. v. Pollard, 94 Va. 146, 36 L.R.A. 271, 64 Am. St. Rep. 715, 26 S. E. 421; McGowan v. Supreme Court, I. 0. F. 104 Wis. 173, 80 N. W. 603. SLazensky v. Supreme Lodge K. H. 31 Fed. 595; Goodwin v. Provident Sav. Life Assur. Asso. 97 Iowa, 226, 32 L.R.A. 473, 59 Am. St. Rep. 411, 66 N. W. 157; Dial v. Valley Mut. Life Asso. 29 S. C. 560, 8 S. E. 27; Southern L. Ins. Co. v. Booker, 9 Heisk. 606, 24 Am. Rep. 344. But see Manhattan L. Ins. Co. v. Myers, 109 Ky. 372, 59 S. W. 30. •Sutcliffe V. Iowa State Traveling Men's Asso. 119 Iowa, 220, 97 Am- St. Rep. 298, 93 N. W. 90; Eens v. Northwestern Mut. Relief Asso. 100 Wis. 266, 75 N. W. 991; Smith v. National Ben. Soc. 123 N. Y. 85, 9 L.R.A. 616, 25 N. E. 197, affirming 51 Hun, 575, 4 N. Y. Supp. 521. 'Eoss-Lewin v. Germania L. Ins. Co. 20 Colo. App. 262, 78 Pac. 305; Jenkin v. Pacific Mut. L. Ins. Co. 131 Cal. 121, 63 Pac. 180; Hale v. Life Indemnity & Invest. Co. 65 Minn. 548, 68 N. W. 182; Connecticut Mut. L. Ins. Co. V. McWhirter, 19 C. C. A. 519, 44 U. S. App. 492, 73 Fed. 444. • Supreme Conclave K. D. v. O'Connell, 107 Ga. 97, 32 S. E. 946; Van Frank v. United States Masonic Ben. Asso. 158 111. 560, 41 N. E. 1005; Callies v. Modern Woodmen, 98 Mo. App. 521, 72 S. W. 713; Steinhausen v. Preferred Mut. Acci. Asso. 59 Hun, 336, 13 N. Y. Supp. 36; Terwilliger v. Industrial Ben. Asso. 83 Hun, 320, 31 N. Y. Supp. 938; Foxhever v. Order of Red Cross, 24 Ohio C. C. 56; Fidelity Mut. L. Ins. Asso. v. Winn, 96 Tenn. 224, 33 S. W. 1045; Thomas v. Grand Lodge, A. O. U. W. 12 Wash. 500, 41 Pac. 882, Taylor v. Grand Lodge, A. 0. U. W. 101 Minn. 72, 11 L.R.A. (N.S.) 92, 118 Am. St. Rep. 606, 111 N. W. 919, 11 Ann. Cas. 260. For a more extensive discussion of this question, with the citation of many additional authorities, see note in 11 L.R.A. (N.S.) 92. 19. Proof against one person of declarations by another to show partnership. A person not in fact a partner cannot be made liable to third persons on the ground of having been held out as a partner, ex- cept on the principle of equitable estoppel that he authorized bimself to be so held out, and that credit was extended on the faith of such partnership,' and, therefore, the declarations of one party that another is his partner are not evidence to estab- lish the partnership, where the declarations are not made in 142 BRIEF ON FACTS. the presence of or with the knowledge of the alleged partner.' But such declarations are relevant to corroborate or rebut other evidence tending to prove the existence or nonexistence of a partnership.' And the declarations of two that another is a partner with them are competent against the latter, where he seeks to prove by the declarations of the others that he was not a partner, since the same kind of evidence may be given against him as for him.* 1 Thompson v. First Nat. Bank, 111 U. S. 529, 28 L. ed. 507, 4 Sup. Ct. Rep. 689. zVanderhurst v. De Witt, 95 Cal. 57, 20 L.E.A. 595, 30 Pac. 94; Kirby V. Hewitt, 26 Barb. 607; Whitney v. Wardell, 59 Hun, 95, 13 N. Y. Supp. 110; Began v. Singer, 41 111. 28; Montgomery v. Black, 25 111. App. 22, 124 111. 57, 15 N. E. 28; McNamara v. Eustis, 46 Minn. 311, 48 N. W. 1123; Tuttle v. Cooper, 5 Pick. 414; Ruhe v. Burnall, 121 Mass. 450; Rimel v. Hayes, 83 Mo. 200; Grafton Bank v. Moore, 13 N. H. 99, 38 Am. Dec. 478; Walker v. Tupper, 152 Pa. 1, 25 Atl. 172; Berry v. Barnes, 23 Ark. 411; Ford v. Kennedy, 64 G-a. 537; King v. Barbour, 70 Ind. 35; Johnston v. Clements, 25 Kan. 376; Donley v. Hall, 5 Bush, 549; Cowan v. Kinney, 33 Ohio St. 422; Noyes v. Cushman, 25 Vt. 390; Butte Hardware Co. v. Wallace, 59 Conn. 336, 22 Atl. 330; Edmandson v. Thompson, 2 Fost. & F. 564, 8 Jur. N. S. 235, 31 L. J. Exch. N. S. 207, 5 L. T. N. S. 428, 10 Week. Rep. 300. 3 Humes v. O'Bryan, 74 Ala. 64; Johnston v. Warden, 3 Watts, 101; McCutchin v. Bankston, 2 Ga. 244. 4 Nelson v. Lloyd, 9 Watts, 22. For other cases on this question, see note in 20 L.R.A. 595. 20. Declarations against title by former owner, who is available as a witness. It is a well-settled general rule of law that the declarations against his own title of a former owner of property, whether real or personal, are admissible not only against himself, but also against those claiming under him, and, although there was formerly some doubt and confusion on the subject, such declara- tions are now held to be admissible even though the declarant is not dead, but is alive, capable of attending court, and within reach of its process.^ 1 Abbott V. Walker, 204 Mass. 71, 26 L.R.A. (N.S.) 814, 90 N. E. 405; Horton v. Smith, 8 Ala. 73, 42 Am. Dec. 628; Deming v. Carrington, ADMISSIONS AND DECLARATIONS. 143 12 Conn. 1, 30 Am. Dec. 591; Sandifer v. Hoard, 59 111. 246; Holt V. Walker, 26 Me. 107, 45' Am. Dec. 98; Bridge v. Eggleston, 14 Mass. 245, 7 Am. Dec. 209; Austin v. Sawyer, 9 Cow. 39; Guy v. Hall, 7 N. C. (3 Murph.) 150; Gibblehouse v. Strong, 3 Rawle, 437; Snelgrove v. Martin, 2 M'Cord, L. 241; Mulholland v. Ellitson, 1 Coldw. 307, 78 Am. Dec. 495; Montgomery v. Lipscomb, 105 Tenn. 144, 58 S. W. 306; Woolway v. Rowe, 1 Ad. & El. 114, 3 Nev. & M. 849, 3 L. J. K. B. 121. Contra: Coit v. Howd, 1 Gray, 547; Stephen v. Gwenap, 1 Moody & R. 120. If the maker of a note elects to call the indorser aa a witness, he thereby waives his right to give in evidence his declarations against interest. Merrick v. Parkman, 18 Me. 407. 21. Declarations of one since deceased against his own marriage. The courts are divided as to the admissibility of declarations by one since deceased against his or her own marriage, some courts admitting such declarations,^ while others exclude them.^ iDrawdy v. Hesters, 130 Ga. 161, 15 L.E.A.{N.S.) 190, 60 S. E. 451; Topper V. Perry, 197 Mo. 531, 114 Am. St. Rep. 777, 95 S. W. 203; Imboden v. St. Louis Union Trust Co. Ill Mo. App. 220, 86 S. W. 263; Craufurd v. Blackburn, 17 Md. 49, 77 Am. Dec. 323; Hubee's Succession, 20 La. Ann. 97; Barnum v. Barnum, 42 Md. 251. That a presumption of the existence of the marriage, arising from the conduct of the parties, will not be overturned, however, by the declara- tions of one party, denying the marriage, unless made under cir- cumstances of peculiar seriousness and solemnity, is declared in Hen- derson V. Cargill, 31 Miss. 367. And it was said in Greenawalt v. McEnelley, 85 Pa. 352, that a decedent's denial of his marriage to a certain person, being a declaration in his own interest, was entitled to little weight in opposition to declara- tions made by him admitting such marriage. 2 Hill V. Hill, 32 Pa. 511; Hull v. Rawls, 27 Miss. 471. Declarations of one since deceased, against his marriage to a certain person, made in the latter's absence, were held inadmissible in Thomp- son v. Nims, 83 Wis. 261, 17 L.R.A. 847, 53 N. W. 502; and Moore's Estate, 9 Pa. Co. Ct. 338. 22. Declarations of testator. a. To show undue influence. — Ante-testamentary declara- tions of a testator are not competent as direct and substantive evidence of undue iniluence, or to show that the will was pro- cured thereby, but are admissible to show the mental condition 144 BEIEF ON BAOTS. of testator at the time of making the will and his 8aBeei>tibiKty to influence.^ iHobson V. Moorman, 115 Tenn. 73, 3 L.R.A.(N.S.) 749, 90 S. W. 152; Wall V. Dimmitt, 114 Ky. 923, 72 S. W. 300; Harrlng v. Allen, 25 Mich. 505; Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71; Re Woodward, 167 N. Y. 28, 60 N. E. 233; Re Townsend, 122 Iowa, 255, 97 N. W. 1108; Zibble v. Zibble, 131 Mich. 655, 92 N. W. 348. IFor other cases on this subject, see note in 3 L.R.A. (N.S.) 749. i. On issue of testator's intention in destroying will. — The authorities are all agreed that where it is shown that a testa- tor has destroyed or otherwise canceled his will, the declarations made by him at the time are admissible as part of the res gestae to show with what intent he destroyed the instrument.^ And the weight of authority also supports the proposition that subsequent declarations by the testator are admissible to show his intent.^ iLaw V. Law, 83 Ala. 432, 3 So. 752; Olmsted v. Buss, 122 Cal. 224; 64 Pac. 745; Glass v. Scott, 14 Colo. App. 377, 60 Pac. 186; Spen- cer's Appeal, 77 Conn. 638, 60 Atl. 289; Patterson v. Hiekey, 32 Ga. 156; Collagan v. Burns, 57 Me. 449; Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322; Dan v. Brown, 4 Cow. 483, 15 Am. Dec. 395; Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71; Thompson t. Updegraff, 3 W. Va. 639; Bibb ex dem. Mole v. Thomas, 2 W. Bl. 1043; Doe ex dem. Perkes v. Perkes, 3 Barji. & Aid. 489, 22 Revised Rep. 458; Doe ex dem. Reed v. Harris, 6 Ad. & El. 209, 1 Nev. & P. 405, W. W. & D. 106, 6 L. J. K. B. 84; 3 Wigmore, Ev. § 1782. «Boudinot v. Bradford, 2 Dall. 266, 1 L. ed. 375; Weeks v. McBeth, 14 Ala. 474; Lawyer v. Smith, 8 Mich. 411, 77 Am. Dec. 460; Behrens V. Behrens, 47 Ohio St. 323, 21 Am. St. Rep. 820, 25 N. E. 209; Cogh- lin V. Coghlin, 29 Ohio C. C. 251; Smiley v. Gambill, 2 Head, 163; Spencer's Appeal, 77 Conn. 638, 60 Atl. 289; Managle v. Parker, 75 N. H. 139, 24 L.R.A.(N.S.) 180, 71 Atl. 637; Patterson v. Hiekey, 32 Ga. 150; Colvin v. Eraser, 2 Hagg. Eccl. Rep. 266; Keen v. Keen, L. R. 3 Prob. & Div. 105, 42 L. J. Prob. N. S. 61, 29 L. T. N. S. 247. ■Contra: Dan v. Brown, 4 Cow. 483, 15 Am. Dec. 395; Waterman v. Whit- ney, 11 N. Y. 157, 62 Am. Dec. 71. And in Glass v. Scott, 14 Colo. App. 377, 60 Pac. 186, declarations long subsequent to the act of destruction were excluded. c. To overcome or sustain presumption of revocation, where ■will cannot he found. — As to the admissibility in evidence of ADMISSIONS AND DEOLABATIONS. 145 declarations of the testator to overcome or sustain the presump- tion of revocation arising from the inability to find a will which was in existence prior to the testator's death, there is some con- flict among the authorities, some courts holding them admis- sible,^ while others exclude them.^ That such declarations alone are insufficient to overcome the presumption of revocation is generally recognized. 1 Tucker v. Whitehead, 59 Miss. 594; Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619; Re Page, 118 111. 576, 59 Am. Eep. 395, 8 N. E. 852; Patterson v. Hickey, 32 Ga. 156; Behrens v. Behrens, 47 Ohio St. 323, 21 Am. St. Rep. 820, 25 N. E. 209; Johnson's Will, 40 Conn. 587; Bausett v. Keitt, 22 S. C. 187; Betts v. Jackson, 6 Wend. 173; Durant v. Ashmore, 2 Rich. L. 184; Lawyer v. Smith, 8 Mich. 411, 77 Am. Dec. 460; Youse v. Forman, 5 Bush, 337; Weeks v. McBeth, 14 Ala. 474; Whiteley v. King, 17 C. B. N. S. 756, 10 Jur. N. S. 1079, 11 L. T. N. S. 342, 13 Week. Eep. 83; Southworth v. Adams, 11 Biss. 257, Fed. Cas. No. 13,194; Keen v. Keen, L. R. 3 Prob. & Div. 105, 42 L. J. Prob. N. S. 61, 29 L. T. N. S. 247. 8 Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71; Eighmy v. People, 79 N. Y. 546; Re Marsh, 45 Hun, 107. For other cases on this subject, see note in 38. L.R.A. 436. d. To prove existence or contents of lost or destroyed will. — While declarations of the testator are not of themselves alone sufficient to establish the execution of a lost or destroyed will, they are admissible in evidence in aid of other proof.^ Nor can the contents of a lost will be established solely by the declara- tions of the testator, although they are now deemed admissible for the purpose of corroboration.^ 1 Ripley's Goods, 4 Jur. N. S. 342, 1 Swabey & T. 68, 6 Week. Eep. 460 ; Re Rusqell, 33 Hun, 271, affirmed in 98 N. Y. 633; Collyer v. Collyer, 4 Dem. 53, affirmed in 110 N. Y. 481; Mercer v. Mackin, 14 Bush, 434; Clark v. Turner, 50 Neb. 290, 38 L.R.A. 433, 69 N. W. 843. 2 Cla,rk V. Turner, 50 Neb. 290, 38 L.R.A. 433, 69 N. W. 843 ; Collyer v. Collyer, 17 Abb. N. C. 328; Chisholm v. Ben, 7 B. Mon. 408; Re Hope, 48 Mich. 518, 12 N. W. 682; Re Lambie, 97 Mich. 49, 56 N. W. 223; Re Page, 118 111. 576, 59 Am. Rep. 395, 8 N. E. 852; Morris V. Swaney, 7 Heisk. 591; Sugden v. St. Leonards, L. R. 1 Prob. Div. 154, 45 L. J. Prob. N. S. 49, 34 L. T. N. S. 369, 24 Week. Rep. 479; Woodward v. Goulstone, L. R. 11 App. Cas. 469, 35 Week. Eep. 337, 56 L. J. Prob. N. S. 1, 55 L. T. N. S. 790, 51 J. P. 307; Clark v. Morton, 5 Eawle, 235, 28 Am. Dee. 667; Ee Marsh, 45 Hun, 107. Abb. Facts — 10. 146 BRIEF ON FACTS. 23. Declarations of deceased subscribing witness to will. The courts are not agreed upon the question of the admis- sibility of declarations of deceased subscribing witnesses to a will as to the testamentary capacity of the testator, some courts holding such declarations inadmissible,^ while others hold them admissible.^ iSpeer v. Speer, 146 Iowa, 6, 27 L.K.A.(N.S.) 294, 123 N. W. 176; Sewall V. Eobbins, 139 Mass. 164, 29 N. E. 650; Baxter v. Abbott, 7 Gray, 71; Boardman v. Woodman, 47 N. H. 120; Sellars v. Sellars, 2 Heisk. 430; Eunyan v. Price, 15 Ohio St. 1, 86 Am. Dec. 459; Stacy v. Graham, 14 N. Y. 499. aColvin V. Warford, 20 Md. 357; Gaither v. Gaither, 3 Md. Ch. 158; Townshend v. Townshend, 9 Gill, 506; Black v. Ellis, 3 Hill, L. 68; Harden v. Hays, 9 Pa. 151. 24. Declarations of infant too young to be sworn as a witness. While one or two of the earlier English cases sustained the admissibility of declarations of an infant not competent to be sworn as a witness,^ the rule is now well established, both in England and in America, that such declarations are inadmis- sible.^ The rule seems to be otherwise in Kentucky, however,^ and the general rule seems not to exclude declarations against interest* So, too, an exception is made in favor of exclama- tions or statements of the infant made contemporaneously with the main transaction, these being held admissible as part of the res gestce, if the child possesses sufficient intelligence to render his statements reliable.* And that an injured child made recent complaint may be shown, though the details of the statement, or the name of the person accused, are inadmissible.* 1 1 Hale, P. C. 634; 1 East, P. C. 441; 4 Bl. Com. 214. 2 Reg. V. Nicholas, 2 Car. & K. 246, 2 Cox, C. C. 139 ; 1 Phillipps, Ev. 11, citing Rex v. Tucker, 1808, MS., Edwards v. Morrow, 12 La. Ann. 887; Smith v. State, 41 Tex. 352; People v. Graham, 21 Gal. 261; Weldon v. State, 32 Ind. 81; State v. Tom, 8 Or. 177. 3 Philpot V. Com. 5 Ky. L. Rep. 862. * Atchison, T. & S. F. E. Co. v. Potter, 60 Kan. 808, 72 Am. St. Eep. 385, 58 Pac. 471. B People V. Colletta, 65 App. Div. 570, 72 N. Y. Supp. 903, affirmed with- out opinion in 169 N. Y. 609, 62 N. E. 1099; Croomes v. State, 40 Tex. Crim. Rep. 672, 51 S. W. 924, 53 S. W. 882; Kenney v. State, — Tex. Crim. App. — . 65 L.R.A. 316. ADMISSIONS AND DECLARATIONS. 147 6 People V. Barney, 114 Cal. 554, 47 Pao. 41; Territory v. Godfrey, 6 Dak. 46, 50 N. W. 481; People v. Figueroa, 134 Cal. 159, 66 Pac. 202 ; State v. Jerome, 82 Iowa, 749, 48 N. W. 722. Statements made to his father by a boy who came home wounded and crying are admissible as part of the res gestce in a, prosecution for assault and battery; but statements subsequently made to a third person sent for by the father are inadmissible, as well as the acts and conduct of the boy in pointing out the scene of the assault and the stick claimed to be the one he was struck with. Pool v. State, — Tex. Crim. Eep. — , 23 S. W. 891. And in a prosecution for assault with intent to rape testimony by the mother of the child assaulted, as to what the latter's three-year-old brother stated to the mother the next day about the transaction, jb incompetent. People v. Beech, 129 Mich. 622, 89 N. W. 363. For a fuller review of the cases, see note in 65 L.E..A. 316. 25. Admissibility of statements in presence of party as affected by his mental or physical condition at the time. One injured severely by a fall from a street car and suffer- ing from shock occasioned thereby cannot be bound by state- ments made in her presence and undenied by her, as to how her injury occurred, where there is nothing to show that she heard the statements.^ And evidence showing that the husband of the plaintiff, injured by being thrown from a carriage, made certain statements while they were still about the place of the accident, as to the cause of plaintiff's injuries, are properly ex- cluded, it appearing that she took no part in the conversation at the time, and that she was then suffering from the injury re- ceived, and being assisted to a carriage.^ So translation of statements made by an injured person, who did not understand the English language, to a doctor who was in attendance upon him, is not admissible as an undenied statement made in the presence of the injured person respecting the manner of his injury.^ Declarations made by one claiming a certain right of way, in the presence of the owner of the servient estate, but not heard by him by reason of deafness, are inadmissible in evi- dence against him, as undenied statements.* A statement made in the presence of one charged with murder, that he was "sham- ming," when it appeared that at the time he was apparently unconscious, is not admissible against him.^ And a declara- tion or statement made in the presence of one unconscious from 148 BEIEP OW FACTS. sleep or stupor cannot be admitted in evidence against him.* So one rendered hysterical by an accident, who had been assist- ing in bringing to consciousness her companion, who was ren- dered unconscious by it, is not bound by a statement made by the latter, immediately on regaining consciousness, as to the cause of the accident, although she did not contradict it.'' 1 Schilling v. Union E,. Co. 77 App. Div. 74, 78 N. Y. Supp. 1015. 2 Tinker v. New York, O. & W. R. Co. 92 Hun, 269, 36 N. Y. Supp. 672, affirmed on other points in 157 N. Y. 312, 51 N. E. 1031. 3 Parulo V. Philadelphia & R. R. Co. 145 Fed. 664. 4 Tufts V. Charleatown, 4 Gray, 537. 5 People V. Koerner, 154 N. Y. 355, 48 N. E. 730. 8 Lanergan v. People, 39 N. Y. 39. TMcCord V. Seattle Electric Co. 46 Wash. 145, 13 L.R. A. ( N.S. ) 349, 89 Pac. 491. 26. Reports by agent or employee to employer, to prove fact in issue. Reports by an agent or employee to his employer are com- petent to affect the employer with notice of, and to establish as against him, relevant facts and existing conditions leading up to the cause of action, if the report was required of the em- ployee, or made in the line of his duty.^ Reports made for the conduct of the business, in the ordinary line of duty, before there is any accident or injury, or pending or contemplated litigation, or before the employee has knowledge of such acci- dent, are generally admissible in behalf of the master.^ But reports made after the cause of action has arisen are generally not admissible in behalf of the employer of the one making them.* And reports which are mere narrations of past events are, as a general rule, not admissible against the employer.* 1 Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545, 30 L. ed. 257, 7 Sup. Ct. Rep. 1; Brady v. North Jersey Street R. Co. 76 N. J. L. 744, 71 Atl. 238; La Abra Silver Min. Co. v. United States, 175 U. S. 423, 44 L. ed. 223, 20 Sup. Ct. Rep. 168; Rogers v. New York & B. Bridge, 11 App. Div. 141, 42 N. Y. Supp. 1046, affirmed in 159 N. Y. 556, 54 N. E. 1094; Virginia-Carolina Chemical Co. v. Knight, 106 Va. 674, 56 S. E. 725; Atchison, T. & S. F. R. Co. v. Burks, 78 Kan. 515, 18 L.R.A.(N.S.) 231, 96 Pac. 950. But reports by employees concerning an accident cannot be received in evidence as admissions by the defendant of the facts stated In the ADMISSIONS AND DECLAI^ATIONS. 14:9 reports, unless the reports have been adopted or promulgated in an authoritative way by some official having pov^er to bind the cor- poration by admissions. Atchison, T. & S. F. R. Co. v. Burks, supra. 8 Callihan v. Washington Water Power Co. 27 Wash. 154, 56 L.R.A. 772, 91 Am. St. Rep. 829, 67 Pac. 697; Williams v. Walton & W. Co. 9 Houst. (Del.) 322, 32 Atl. 726. This is the rule generally laid down with reference to the admissibility of a train despatcher's record as to the movement of trains made up from telegraphic reports transmitted to him from stations along the road. See note to Louisville & N. R. Co. v. Daniel, 3 L.R.A. (N.S.) 1190, and the later case of Hitchner Wall Paper Co. v. Penn- sylvania R. Co. 158 Fed. 1011. 3 North Hudson County R. Co. v. May, 48 N. J. L. 401, 5 Atl. 276; San Antonio & A. P. R. Co. v. Manning, 20 Tex. Civ. App. 504, 50 S. W. 177 ; Insurance Co. of N. A. v. Guardiola, 129 U. S. 642, 32 L. ed. 802, 9 Sup. Ct. Rep. 425. 4 Carroll v. East Tennessee, V. & G. R. Co. 82 Ga. 452, 6 L.R.A. 214, 10 S. E. 163; Wabash R. Co. v. Farrell, 79 111. App. 508; Powell v. Northern P. R. Co. 46 Minn. 249, 48 N. W. 907; Cleveland, C. C. & St. L. R. Co. v. Ullom, 20 Ohio C. C. 512, 11 Ohio O. D. 321. For other cases on this subject, see notes in 18 L.R.A. (N.S.) 231 and 25 L.R.A.(N.S.) 930. 27. Declarations out of court by one whose name is charged to have been forged. The decisions as to the admissibility, upon the question of forgery, of declarations out of court by persons whose names are charged to have been forged, are not entirely agreed. Some courts admit such declarations upon an issue as to forgery of a will, not as direct proof, but as corroborative of other testi- mony.^ But such declarations are held by other decisions, both in cases of forgery of wills and of other instruments, to be inad- missible, on the ground of hearsay.^ IHoppe V. Byers, 60 Md. 381; Taylor Will Case, 10 Abb. Pr. N. S. 300; Turner v. Hand, 3 Wall. Jr. 88, Fed. Cas. No. 14,257; Johnson v. Brown, 51 Tex. 65; Gurley v. Armentraut, 27 Ohio C. C. 199; State V. Ready, 78 N. J. L. 599, 28 L.R.A. (N.S.) 240, 75 Atl. 564; Corbett V. State, 3 Ohio C. D. 79; Doe ex dem. Ellis v. Hardy, 1 Moody & R. 525; Re Thomas, 155 Cal. 488, 101 Pac. 798. 2 Kennedy v. Upshaw, 64 Tex. 411; Boylan v. Meeker, 28 N. J. L. 274; Leslie v. McMurtry, 60 Ark. 301, 30 S. W. 33; People v. Driggs, 12 Cal. App. 240, 108 Pac. 62, 64; People v. Alderdiee, 120 App. Div. 368, 105 N. Y. Sup. 395; People v. Landis, 139 Cal. 426, 73 Pao. 153; State V. Allen, 56 S. C. 495, 35 S. E. 204. 150 BRIEF ON FACTS. ADULTERY. 1. Circumstantial evidence; presumptions. 2. Cogency and relevancy of proof. As to criminality of solicitations to crime (including adultery) which is not consummated, see note to State v. Butler, 25 L.R.A. 434. 1. Circumstantial evidence; presumptions. The evidence to establisli the fact of adultery need not be direct, but it may be established by proof of circumstances, etc., from which the jury may reasonably infer guilt ; ' but, if cir- cumstantial, the evidence must be such as would lead the guard- ed discretion of a just mind to the conclusion of the truth of the charge.* Occupying the same sleeping apartment is presumptive evi- dence of guilt. ^ 1 Stiles v. stiles, 167 111. 576, 47 N. E. 867. And see cases in succeeding note. Adultery may be proved by the inferences arising from the acts of the parties, although not directly shown. Dunham v. Dunham, 162 III. 589, 35 L.R.A. 70, 44 N. E. 841. Defendant's admissions or specific facts furnishing links in the chain of circumstantial evidence are admissible, even though they do not con- stitute the offense charged or any part of it. Till v. State, 132 Wis. 242, 111 N. W. 1109. BAitchison v. Aitchison, 99 Iowa, 93, 68 N. W. 573; State v. Dukes, 119 N. C. 782, 25 S. E. 786; Stackhouse v. Stackhouse, — N. J. Eq. — , 36 Atl. 884; Phillips v. Phillips, 24 Misc. 334, 52 N. Y. Supp. 489 (fact to be established, not only by fair inference, but as a necessary conclusion; appearances indicating guilt, but still not inconsistent with innocence, not enough) ; Carlisle v. Carlisle, 99 Iowa, 247, 68 N. W. 681; Shufeldt v. Shufeldt, 86 Md. 519, 39 Atl. 416; Cooke v. Cooke, 152 111. 286, 38 N. E. 1027 (that person was seen in house of assignation holding an inmate on his lap, and that he remained in the house all night and until nine o'clocl< the following day, sufficient) ; Com. V. Hosier, 135 Pa. 221, 19 Atl. 943 (proof that man and woman, not husband and wife, occupy same room and bed, undressed, in the night- time, sufBcient) ; Van Name v. Van Name, 49 Hun, 264, 2 N. Y. Supp. 77 (entering house of ill-fame and remaining for a time. ADULTEEY. 151 if unexplained, sufncient) ; Cornelius v. Hambay, 150 Pa. 359, 24 Atl. 515 (proof that man and woman, not husband and wife, visited hotel late at night and remained several hours, sufficient). See also State v. La; Mora, 53 Or. 261, 99 Pao. 417. 3 United States v. Griego, 11 N. M. 392, 72 Pao. 20. See also State v. Eggleston, 45 Or. 346, 77 Pac. 738. 2. Cogency and relevancy of proof. The law does not require a different kind of evidence in criminal prosecutions for adultery from that required in civil actions, but the degree of proof differs. In criminal the fact is required to be established beyond a reasonable doubt, as in the case of other criminal prosecutions ; ^ while in civil suits it is required to be established by preponderance of the evi- dence.* Statements by a man when stopped on his way from the room of a married woman at night are not admissible as part ■of the 7'es gestw upon the question of the woman's adultery.' In North Carolina, under a statute authorizing a prosecution for criminal elopement with a wife who since her marriage has been innocent and virtuous, the state may show her general character for virtue and innocence.* 1 State V. Brink, 68 Vt. 659, 35 Atl. 492. Under the Georgia Code of 1895, the state was held bound to prove that both parties were married. Zaclcery v. State, 6 Ga. App. 104, 64 S. E. 281. The uncorroborated testimony of the complainant is not sufficient to sus- tain a, conviction. Blue v. State, 86 Neb. 189, 125 N. W. 136. Under the New York Penal Law, section 103, a conviction for adultery cannot be had on the uncorroborated testimony of the person with whom the offense is charged to have been committed. «Lenning v. Lenning, 176 111. 180, 52 N. E. 46; Stiles v. Stiles, 167 111. 576, 47 N. E. 867 ; Lindley v. Lindley, 68 Vt. 421, 35' Atl. 349. And see Abbott, Trial Ev. 2d ed. 948. If the defendant's confession is relied on as the basis of the judgment, it must be sufficient to preclude all suspicion of collusion, and usually the confession should be corroborated by other evidence. Diederichs V. Diederichs, 44 Misc. 591, 90 N. Y. Supp. 131. 8 State V. Bradnaclf, 69 Conn. 212, 43 L.R.A. 620, 37 Atl. 492. 4 State V. Connor, 142 N. C. 700, 55 S. E. 787. 152 BBIEF ON FACTS. 'ADVEESE POSSESSIOIT. 1. Burden of proof. 2. Presumptions. 3. Conclusion. 4. Declarations — hearsay. 5. Relevancy. 6. Weight, effect, and sufficiency. Upon rights acquired as against the public by adverse possession of high- way or city street, see note to Meyer v. Graham, 18 L.R.A. 146. Adverse possession against remaindermen and owners of future estates, see note to Gindrat v. Western Railway of Alabama, 19 L.R.A. 839. Adverse possession due to ignorance or mistake as to boundary, see note to Preble v. Maine C. R. Co. 21 L.R.A. 829. Adverse possession by donee under parol gift, see note to Schafer v. Haus- er, 35 L.R.A. 835. 1. Burden of proof. The burden of establishing adverse possession Is upon the party who asserts a title based thereon against the holder of the legal title.' 1 Davidson v. Alabama Iron & S. Co. 109 Ala. 383, 19 So. 390; Beasley v. Howell, 117 Ala. 499, 22 So. 989; McConnell v. Day, 61 Ark. 464, 33 S. W. 731; F. A. Hihn Co. v. Fleckner, 106 Cal. 95, 39 Pac. 214; Bussey v. Jackson, 104 Ga. 151, 30 S. E. 646; Thomson v. Thomson, 93 Ky. 435, 20 S. W. 373; Wohlwend v. Weingardner, 19 Ky. L. Rep. 429, 40 S. W. 928; Griffin v. MuUey, 167 Pa. 339, 31 Atl. 664; Drum- right V. Hite, 2 Va. Dec. 465, 26 S. E. 583. One who sets up against the legal title to land only title by adverse occu- pancy must prove all the facts requisite to give title by adverse pos- session, including a continuous, unbroken, notorious, actual, and ad- verse possession under claim of right for the full statutory period, together with the limits, location, and extent of the occupancy. Wil- kins V. Pensaeola City Co. 36 Fla. 36, 18 So. 20. But one claiming by adverse possession is not bound to establish his right to every part of the land in controversy, but may recover any portion of the premises to which he substantiates his claim. Jacob Tome Inst. V. Davis, 87 Md. 591, 41 Atl. 166. Plaintiff in ejectment, who adduces a, chain of title from a. source ac- knowledged to be genuine, need not show possession in each of his intermediate grantors, but such possession is presumed, and the burden cast on defendant to establish an adverse possession. Arents v. Long Island R. Co. 89 Hun, 126, 34 N. Y. Supp. 1085. ADVEESE POSSESSION. 153 The burden of showing that the possession of a vendee of land under » contract providing for a conveyance of the title on payment of tlie purchase price was adverse rests upon the party alleging it. Bradsher v. Hightower, 118 N. C. 399, 24 S. E. 120. The burden of showing title by adverse possession rests upon the state or its agencies, where the public claims title by user to an easement in a public highway. State v. Fisher, 117 N. C. 733, 23 S. E. 158. A claimant of land under a. parol gift has the burden of proof as to improvements and other acts of ownership. Raleigh v. Wells, 29 Utah, 217, 81 Pac. 908, 110 Am. St. Eep. 689. 2. Fresumptions. Every presumption is in favor of a possession in subordina- tion to the title of the true owner, and an advei-se possession against such owner must be established by clear and positive proof.^ The evidentiary facts essential to adverse possession cannot be established by mere inference, but from the unexplained fact of open, continuous, and exclusive possession of land, a hostile entry as to all the world may be inferred, as well as that the possession continued adverse in its character.* A grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for the statutory period.' And open, notorious, uninterrupted, and peaceable possession of land under a claim of right will be presumed to have been adverse from its inception as to the holder of the legal title, though not in its character hostile.* And one who has been ousted from possession of his real estate by an open, visible, and exclusive possession in another, which has continued uninterruptedly for the limitation period, will be presumed to have had knowledge of it.* It will be presumed that one in possession under a deed claimed up to the boundaries described therein, when such boundaries are located.® IBarrs v. Brace, 38 Fla. 265, 20 So. 991; Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171; Wilson v. Johnson, 51 Fla. 370, 41 So. 395; Horn V. Metzger, 234 111. 240, 84 N. E. 893. A grantee's possession is presumed to be under his deed. McBride v. Caldwell, 142 Iowa, 228, 119 N. W. 741. 154 BEIEF ON FACTS. Adverse possession as a defense to an action of ejectment will not be presumed to have continued for the statutory period under claim or color of title, from the mere fact of possession not shown to have been under such color or claim, and to have been continuous. Atkinson V. Smith, 2 Va. Dec. 373, 24 S. E. 901. A stranger to the will, who, after the death of one to whom a life estate is devised, continues to occupy the premises without any evidence that his holding is permissive, or in subordination to the rights of others under the will, will be presumed to have possessed it adversely. Satcher v. Grice, 53 S. C. 126, 31 S. E. 3. a Meyer v. Hope, 101 Wis. 123, 77 N. W. 720. Possession of land will be presumed to have been adverse unless the con- trary is shown. Alexander v. Gibbon, 118 N. C. 796, 54 Am. St. Rep. 757, 24 S. E. 748. Possession is presumed to be adverse if accompanied by the usual acts of ownership, but such possession may be shown to be subservient to the title of another. Criswell v. Noble, 61 Misc. 483, 113 N". Y. Supp. 954, affirmed in 134 App. Biv. 994, 119 N. Y. Supp. 1122. One claiming property by adverse possession is presumed to act in good faith. Baxley v. Baxley, 117 Ga. 60, 43 S. E. 436. No presumption arises that an adverse possession of land shown to have existed for a time continues for a sufficient time to give title by adverse possession. Woods v. Hull, 90 Tex. 228, 38 S. W. 165. 8 United States v. Chaves, 159 U. S. 452, 40 L. ed. 215, 16 Sup. Ct. Eep. 57. A presumption of a grant arises from the peaceable, continued, adverse, and exclusive possession of lots for twenty-one years, accompanied by the payment of taxes and street improvements, and the exercise of such other and further acts of ownership as the character of the lots warranted. Hasson v. Klee, 181 Pa. 117, 37 Atl. 184. So, an unmolested possession of land for thirty years will authorize the presumption of 5 grant. Barclay v. Howell, 6 Pet. 498, 8 L. ed. 477; Philadelphia & R. R. Co. v. Obert, 109 Pa. 193, 1 Atl. 398. And adverse possession of over eighty years will not be disturbed. Moore V. Greene, 19 How. 69, 15 L. ed. 533. Every permissible presumption should be indulged in support of a claim of forty years' duration, undisputed by those adversely interested. Logan v. Pierce, 66 Tex. 126, 18 S. W. 343; Hasbrouck v. Burhans, 42 Hun, 376. •iToltec Ranch Co. v. Babcock, 24 Utah, 183, 66 Pac. 876, affirmed in 191 U. S. 542, 48 L. ed. 294, 24 Sup. Ct. Rep. 169. s Carney v. Hennessey, 74 Conn. 107, 53 L.R.A. 699, 92 Am. St. Eep. 199, 49 Atl. 910. « Lewis V. John L. Roper Lumber Co. 113 N. C. 55, 18 S. E. 52. In the absence of contrary evidence, the presumption is that the posses- sion of adjoining owners is coextensive with their legal title, Kurz ». Miller, 89 Wis. 426, 62 N. W. 182, ADVERSE POSSESSIOIT. 155 3. Conclusion. It is not competent for a witness, upon the question as to adverse possession, to testify as to his conclusion in respect to the question ; but he must state the facts upon which such con- clusion lests.^ lArents v. Long Island E. Co. 156 N. Y. 1, 50 N. B. 422, afBrming 89 Hun, 126, 34 N. Y. Supp. 1085. But see Metz v. Metz, 48 S. C. 472, 26 S. E. 787, which holds that a witness on the issue of adverse possession may state as a fact that one had possession at a certain time, received the rents and paid the taxes, where he has knowledge of the facts. 4. Declarations — hearsay. Declarations made by persons in possession of lands, as to the character of their possession, are admissible upon the ques- tion whether such possession was adverse.^ Evidence that by reputation and general understanding in the neighborhood the title to land was in one claiming adverse possession is inadmissible to establish title by adverse posses- sion.* iWard V. Cochran, 18 C. C. A. 1, 36 U. S. App. 307, 71 Fed. 127; Casey v. Casey, 107 Iowa, 192, 70 Am. St. Eep. 190, 77 N. W. 844; High V. Pancake, 42 W. Va. 602, 26 S. E. 536; Lewis v. Watson, 98 Ala. 479, 22 L.R.A. 297, 39 Am. St. Eep. 82, 13 So. 570. It is competent in support of a plea of title by adverse possession to a strip on the boundary between two tracts of land to prove a declara- tion by the grantor of the party asserting such possession, to a pros- pective purchaser, that there had never been any question about the division fence being upon the boundary line, notwithstanding that it was in his own favor, as it serves to characterize the nature of his possession. Burr v. Smith, 152 Ind. 469, 53 N. E. 469. SGoodson v. Brothers, 111 Ala. 589, 20 So. 443; Whittaker v. Thayer, 48 Tex. Civ. App. 508, 110 S. W. 787. 5. Relevancy. In determining adverse possession all open acts ot ownership may be considered, such as sale of the land without accounting for the proceeds, payment of taxes, erection of improvements under a claim of right, and acts or declarations tending to show a claim of sole ownership.* 3 Doe ex dem. Pepper v. Eoe, 2 Marv. (Del.) 221, 43 Atl. 90. 156 BRIEF ON FACTS. It is competent on the question of. adverse character of the possession of a tract of land inclosed with other tracts as a pasture, to show that the person exercising such possession stated that he claimed no land in the pasture other than that which he had bought, ajid none by limitation; that during such possession he purchased other tracts included in the pasture; that he pronounced a list of his land not included in such tract satisfactory; that such tract was not included in lists of lands for taxes rendered by him; and that there was no deed for that tract to him on record. Waller v. Leonard, 89 Tex. 507, 35 S. W. 1045, reversing — Tex. Civ. App. — , 34 S. W. 799. Evidence that the owner of a lot used a strip of land east of his fence as a pathway during part of the time which the adjoining lotowner on the east claims to have been in adverse possession up to the fence is admissible in the former's favor. Beeeher v. Ferris, 110 Mich. 537, 68 N. W. 269. A claim of seisin by plaintiff in ejectment may be disproved by showing that the instruments under which such claim was made violated the New York statutes declaring all grants of land held adversely by an- other void. Hughes v. Hughes, 14 Misc. 631, 35 N. Y. Supp. 679. Proof of the payment of taxes is admissible on the question of ownership of land by adverse possession. Wren v. Parker, 57 Conn. 529, 6 L.R.A. 80, 14 Am. St. Eep. 127, 18 Atl. 790; Merwin v. Backer, 80 Conn. 338, 68 Atl. 373 ; Clark v. Ihinn, 161 Ala. 633, 50 So. 93. Evidence that a given defendant in partition proceedings, who claims in his answer to be the sole owner of the land, entered into possession under a contract with the heirs to pay the taxes and care for the prop- erty, is admissible to show title in the heirs by adverse possession through him as tenant. Alexander v. Gibbon, 118 N. C. 796, 54 Am. St. Kep. 757, 24 S. E. 748. An acknowledgment by a, disseisor of the record of a paper title to land, as by the acceptance of a lease from the owner of such title, is in the nature of an admission that the disseisor had no title, and is com- petent evidence to show that his possession was not adverse. Sage V. Eudniek, 67 Minn. 362, 69 N. W. 1096. Evidence of the possession for ten years of 320 acres of land is inadmissible to show title by adverse possession under the Texas statute of limita- tions for ten years, allowing 160 acres of land to a naked possessor for that time. Crumbley v. Busse, 11 Tex. Civ. App. 319, 32 S. W. 438. Notoriety of claim. The claimant of land by adverse possession may show that it was generally understood in the vicinity that he claimed the land. This is competent on the question of notoriety of claim, though not as actual evidence of title. Doe ex dem. Anniston City Land Co. V. Edmondson, 145 Ala. 557, 40 So. 505 ; Lusk v. Pelter, 101 Va. 790, 45 S. E. 333. One occupying real estate at a certain time may testify as to who made use of adjoining land up to the division fence, as tending to show ADVERSE POSSESSIOM'. 157 adverse possession in him, and that the owner of the land occupied by witness was only in possession as far as the fence when he con- veyed the property to a third person, and as to the construction which had been put by the adjoining owners upon their title deeds. Carney v. Hennessey, 74 Conn. 107, 53 L.R.A. 699, 92 Am. St. Eep. 199, 49 Atl. 910. In ejectment for land which plaintiff claims by adverse possession, evi- dence is admissible for the purpose of showing that the possession has not been continuous, that within the limitation period defend- ant recovered it in ejectment against plaintiff and was placed in pos- session. Lewis V. Watson, 98 Ala. 479, 22 L.R.A. 297, 39 Am. St. Rep. 82, 13 So. 570. 6. Weight, effect, and sufficiency. Much more evidence is required to establish an ouster of a tenant in common by a cotenant vrho takes possession of the property than in cases vi^here such relation does not exist.' The possession relied on to establish adverse possession must be proved to have been continuous,^ and hostile to, and not ac- quiesced in by, the owner.^ Uninterrupted, open, and exclu- sive possession for the statutory period, if unexplained, estab- lishes the fact of adverse possession from the beginning.* Clear and unequivocal acts or admissions vcithin the statu- tory period of limitation are necessary to show that title to land by adverse possession has not been acquired.^ Payment of taxes by a person not in actual occupation of land is not, of itself, evidence of adverse possession.* 1 Wheeler v. Taylor, 32 Or. 421, 67 Am. St. Rep. 540, 62 Pac. 183. 2 Thomas v. Dempsey, 53 S. C. 216, 31 S. E. 231. A finding that one holding title to uninclosed lands has been in the ad- verse, open, and notorious possession thereof for over twenty years is' sustained by evidence that he visited the land nearly every week, pas- tured horses thereon, set out trees, directed the erection of a small house, dug a well, and for more than twenty years mowed the land or let it to others to mow, and that it was recognized and spoken of as his land. Sullivan v. Eddy, 164 111. 391, 45 N. E. 837. Evidence by the wife of a tenant in common of land, that her claim by adverse possession is based upon her continuous possession from the time of her marriage, is suiTicient to establish title by adverse pos- session, where there is nothing in such testimony inconsistent with the theory that her possession was the same as her husband's, and 158 BEIEF ON FACTS. that both were in possession as tenants in common. Fenton v. Miller, 108 Mich. 246, 65 N. W. 966. 8 Ruess V. Ewen, 34 App. Div. 484, 54 N. Y. Supp. 357. Evidence that a line of railroad was surveyed and located over real prop- erty more than three years before the commencement of an action of ejectment is insufficient to show that an entry was then made under a claim adverse to the rights of the owner. Nashville, C. &, St. L. E. Co. V. Hobbs, 120 Ala. 600, 24 So. 933. 4Wollman v. Euehle, 100 Wis. 31, 75 N. W. 425. s Hedges v. Polla,rd, 149 Mo. 216, 50 S. W. 889. 6 Whitman v. Shaw, 166 Mass. 451, 44 N. E. 333. Tax receipts which do not identify the land do not establish a claim of ownership or show an exercise of dominion essential to a title by ad- verse possession. Harms v. Kransz, 167 111. 421, 47 N. E. 746. Evidence of the payment of taxes on land for a number of years by a person in adverse possession thereof, in connection with an admission that the state is making no claim to the land, is sufficient to support a finding, essential to the existence of a title by adverse possession, that the state has parted with its title. Busby v. Florida C. & P. E. Co. 45 S. C. 312, 23 S. E. 50. Slight evidence is sufficient to overcome title by prescription. Betjemann V. Brooklyn Union Elev. E. Co. 127 App. Div. 83, 111 N. Y. Supp. 567. Building a house on the property and living in it, cultivating the land with exclusive possession, are sufficient evidence of a claim of title. Cornelius v. Hall, 32 Misc. 663, 66 N. Y. Supp. 451. Parol evidence is competent to show continuity of possession of several claimants of land. Nauman v. Burch, 91 111. App. 48. Evidence. A party claiming by adverse possession must, as against a patentee, show not only actual and uninterrupted possession, but possession to a well defined boundary. Kountze v. Hatfield, 30 Ky. L. Eep. 689, 99 S. W. 262. AFFIITITT. As to what constitutes affinity, and the mode of computing it, see Criminal Trial Brief; and as to mode of proof, Abbott, Trial Ev. pp. 90, etc. AGE. 159 AGE. 1. Presumption. 2. Records and inscriptions. 3. Direct testimony. 4. Hearsay. 5. Opinion. ' 6. Cross-examining witness as to capacity to judge. " 7. Inspection. 8. Age of document. 9. Age of horse. Judicial notice as to age of attorneys, see JtTDlciAL NoTlCB. See also Bieth; Chabacteb; KjSfowiiEDGE. 1. Presumption. Where nothing appears to the contrary, persons entering into an agreement are presumed adults and competent to contract.^ The declaration of age, made by an applicant for membership in a beneficial society, will be presumed correct until the con- trary is proved.^ IFoltz V. Wert, 103 Ind. 404, 2 N. E. 950 (so held on the question of the validity of a contrast by heirs, affecting their rights on distribution). Garber v. State, 94 Ind. 219. 2 Supreme Councii, G. S. F. v. Conlclin, 60 N. J. L. 565, 41 L.R.A. 449, 38 Atl. 659. 2. Records and inscriptions. The statement of the age of the parties in a marriage certifi- cate is no evidence of such fact.' Certificates of birth are made competent evidence by statute in some states.* A baptismal certificate is inadmissible to shov? the age of a person.* An entry in a Bible is not competent proof of the age of a person where it is not shown when and by whom the entry was made, or the writer's means of knowledge, or that those whom it concerned had ever acknowledged it to be an authentic family record.* 160 BEIEF ON FACTS. A leaf taken from a private record book,' or evidence, as the figures upon a birthday cake,^ or concerning an inscription on a tombstone,'' may be admissible upon the question of age. Certified copies of census returns are admissible in evidence upon the question of the age of a citizen.' iPassmore v. Passmore, 60 Mich. 463, 27 N. W. 601. 2 A certificate of birth is competent, under Mass. Pub. Stat. chap. 32, § 11, to show the age of the person referred to therein. Com. v. Hollis, 170 Mass. 433, 49 N. E. 632. Foreign acts of marriage and registries of births, properly authenticated by Federal representatives abroad, are admissible in evidence in the Louisiana courts, under La. act 38 of 1837. Jerman v. Tenneas, 44 La. Tlnn. 620, 11 So. 80. The certificate of an attending physician to the bureau of vital statistics of the city is not admissible on the question of the age of the de- ceased patient, where no general law requiring such certificate, ajid no ordinance of the city requiring the age of the deceased to be stated in the certificate, were put in evidence. Deutscher Frauen Kranken Verein v. Berger, 35 111. App. 112. 3 State V. Snover, 63 N. J. L. 382, 43 Atl. 1059, 11 Am. Grim. Rep. 655 (inadmissible to show age of prosecutrix upon a trial for the carnal knowledge of a woman under the age of consent ) . See also Meehan v. Supreme Council, C. B. L. 95 App. Div. 142, 88 N. Y. Supp. 821. Not admissible to show the age of a voter. Berry v. Hull, 6 N. M. 643, 30 Pac. 936. A record of baptism of the granddaughter of an insured is inadmissible upon an issue as to whether the latter made false representations as to her age in the application for the policy. McQuirk v. Mutual Bene- fit Life Co. 48 N. Y. S. R. 799, 20 N. Y. Supp. 908. A church register of baptisms, even when kept under circumstances render- ing it admissible as evidence, is proof only of the fact of baptism, and not of age, unless the age is at the same time duly recorded in the register. Supreme Assembly R. S. G. F. v. McDonald, 59 N. J. L. 248, 35 Atl. 1061. Certificates of baptism and marriage purporting to be based upon entries in books, but not copies of the entries themselves, are inadmissible to show the age of a. person. Tessmann v. Supreme Commandery, U. F. 103 Mich. 185, 61 N. W. 261. Under Wis. Rev. Stat. § 4172, making official certificates of birth issued in foreign countries presumptive evidence of the facts when authenti- cated, a certificate of baptism is inadmissible to prove the age of the person certified to have been baptized. Lavin v. Mutual Aid Soc. 74 Wis. 349, 43 N. W. 143. 4 Supreme Council, G. S. F. v. Conklin, 60 N. J. L. 565, 41 L.R.A. 449, AGE. 161 38 Atl. 659, with note on entries in family Bible or other religioua book as evidence, in 41 L.R.A. 449. A family Bible containing a record of the family births is admissible to show the age of one whose name is entered therein, without proof of the handwriting or authorship of the entries. People v. Ratz, 115 Cal. 132, 46 Pac. 915. The family Bible of the maternal grandfather of a testator is inadmissible to show his age. Turner v. King, 98 Ky. 253, 32 S. W. 941, rehearing denied in 98 Ky. 260, 33 S. W. 405. The family Bible is admissible to show the age of a given person, al- though the condition of the entry of her birth may require explana- tion. People V. Slater, 119 Cal. 620, 51 Pac. 957. The family record is inadm.issible to prove the age of the alleged infant, where the father and mother are both in court. Smith v. Geer, 10 Tex. Civ. App. 252, 30 S. W. 1108. An entry in a family Bible is admissible to prove age evedi, if the entry was not contemporaneous with the birth. Swift v. Eennard, 119 111. App. 173, see also to the same effect. Hall v. Cardell, 111 Iowa, 206, 82 N. W. 503, where the record was copied from another Bible. See also Wren v. Howland, 33 Tex. Civ. App. 87, 75 S. W. 894, as to admissibility of family Bible to prove relationship. SHunt V. Supreme Council, 0. C. F. 64 Mich. 671, 8 Am. St. Rep. 852, 31 N. W. 576 (leaf taken from deceased soldier's private record book, required to be kept by soldiers in the British service, containing names and ages of his children, admissible to prove their ages). * Evidence that one whose age at a certain time is in issue had a birth- day party before such time, at which there was a cake having certain figures upon it indicating her age, is admissible for the purpose of showing that at the time in question she was older than the age indicated by the figures on the cake. Parkhurst v. Krellinger, 69 Vt. 375, 38 Atl. 67. ■7 Smith V. Patterson, 95 Mo. 525, 8 S. W. 567. ■SPriddy v. Boice, 201 Mo. 309, 9 L.R.A.(N.S.) 718, 99 S. W. 1055; Flora V. Anderson, 75 Fed. 217 ; Bertram v. Witherspoon, 138 Ky. 116, 127 S. W. 533. But see Campbell v. Everhart, 139 N. C. 503, 52 S. E. 201, holding that, while census reports are competent to prove facts of a public nature, they are incompetent to prove the age of a particular person, or that a particular person was not in esse at a given time, and citing Wigmore, Ev. § 1671. And in Edwards v. Logan, 114 Ky. 312, 70 S. W. 852, 75 S. W. 257, it was held that, for other than school purposes, a school census was not evidence of the date of birth of a person named therein. In Battles v. Tallman, 96 Ala. 403, 11 So. 247, it was held that a census enumerator, when called as a witness, could refresh his memory by an examination of the census book, and, if, when his memory had Abb. Facts — 11. 162 BEIEF ON FACTS. been refreshed, he could state the particulars from recollection, such statement was the better evidence and the party who called him was not entitled to the admission of the census book; but that, if the witness, being unable to recall the matter so that he could remember what occurred, yet testified that, at or about the time the memorandum was made, he l<;new its contents and knew them to be true, then the census itself would be admissible in connection with his testimony. 3. Direct testimony. Age may be proved by the testimony of the person whose age is in question,* or that of any other person having proper sources of knowledge,^ but not by opinion of a witness from ap- pearances, unaccompanied by the facts on which that opinion is founded. 1 Abbott Trial Evi. 111. Com V. Stevenson, 142 Mass. 466, 8 N. B. 341 (Holmes, J.). • And his testimony is not rendered incompetent by his further statement, given as the reason for it, "that his mother told him so, and that it was written down in a book, which his father had in his pocket, in the courthouse." Cherry v. State, 68 Ala. 29. The prosecutrix on a, trial for rape may testify as to her own age. Peo- ple V. Eatz, 115 Cal. 132, 46 Pac. 915; Com. v. Phillips, 162 Mass. 504, 39 N. E. 109; Dodge v. State, 100 Wis. 294, 75 N. W. 954. So may the prosecuting witness on a trial for selling intoxicating liquor to a minor. Reed v. State, — Tex. Crim. Rep. — , 29 S. W. 1074. A minor is competent to testify to his own age according to the reputation in the family. State v. Best, 108 N. C. 747, 12 S. E. 907. The prosecutor is properly permitted to state that he was about eighteen years old at the time he was shot, in a prosecution for assault with intent to commit murder, to show the relative condition of the parties at the time of the assault. Gunter v. State, 111 Ala. 23, 56 Am. St. Rep. 17, 20 So. 632. 2 Com. V. O'Brien, 134 Mass. 198. A witness may testify as to the age of a brother a few years younger, al- though, independently of the statement of his father and what had been talked and understood in the family, he is unable to recollect the year of his birth, where he remembers him from infancy, knows his own age, and grew up with the brother. Hogan v. Mutual Aid & Acci. Asso. 75 Hun, 271, 26 N. Y. Supp. 1081. 4. Hearsay. Age may be proved by hearsay, when in question as a fact AGE. 163 of pedigree.^ But not where the ease is not one of pedigree, as, for instance, where the object is to establish infancy as a de- fense,* or as an element in the crime of abduction,' or generally where age is in question.* iPer Ld. Brougham, Monkton v. Atty. Gen. 2 Russ. & M. 147; Abbott, Trial Evi. 97-101. Green v. Norment, 5 Mackey, 80. A question of pedigree is one which involves a question of parentage or descent. 2 Haines v. Guthrie, L. E. 13 Q. B. Div. 818; Kobbe v. Price, 14 Hun, 55 (family record and passport excluded). To same effect, Connecticut Mut. L. Ins. Co. v. Schwenk, 94 U. S. 593, 24 L. ed. 294 {excluding hearsay on the question of the age of the insured in a life policy). S People V. Sheppard, 44 Hun, 565. Otherwise, now by statute in New York. Laws 1888, p. 201, chap. 145, Amending Penal Code, § 19. 4 Testimony of one person as to the age of another, upon information from the latter's sister, is inadmissible where it is not shown that the sister is dead. State v. Parker, 106 N. C. 711, 11 S. E. 517. Upon the issue as to whether the grantor in a deed was an infant at the time of its execution, testimony of a witness that he heard the gran- tor's mother say that he was an infant is inadmissible, unless it is first affirmatively shown that the declaration was made ante litem motam, and that the declarant is dead. Hodges v. Hodges, 106 N. C. 374, 11 S. E. 364. On an issue as to the age of one suing for personal injuries, testimony of his brother and the husband of his sister that each knows the family reputation as to his age, and that he was under twenty-one when he is alleged to have made a compromise with defendant, is inadmissible as hearsay. Rogers v. De Bardeleben Coal & I. Co. 97 Ala. 154, 12 So. 81. The minority or majority of the one to whom beer was sold cannot be proved on a prosecution for selling beer to a minor, by evidence of general reputation as to such fact. Peterson v. State, 83 Md. 194, 34 Atl. 834. But the declarations of the father may be shown to establish the age of a child in a prosecution for selling liquor to him as a minor. In this case the father had testified to the age of the child and the declarations were admitted to impeach his testimony. People v. Werner, 174 N. Y. 132, 66 N. E. 667, reversing 52 App. Div. 635. 164 BEIEF ON FACTS. 5. Opinion. An ordinary witness, having testified to the appearance of a person, may state his opinion as to the person's age.^ 1 Robinson v. Blakely, 4 Rich. L. 586, 55 Am. Dec. 703; People v. Bond, 13 Cal. App. 175, 109 Pac. 150, Lawaon, Opinion Evi. 493, citing Benson v. McFadden, 50 Ind. 431; Morse v. State, 6 Conn. 9; Mar- shall V. State, 49 Ala. 21. And see Bibth. A witness may testify that from the appearance of a child when he saw her he knew her to be four or five months old. Bice v. State, 37 Tex. Crim. Rep. 38, 38 S. W. 803. An opinion as to the age of an absent witness is admissible after a full statement, as far as practicable, of the means of knowledge, and the basis of the opinion. State v. Grubb, 55 Kan. 678, 41 Pac. 951. The opinion of a witness as to the age of prosecutrix, who is present at the trial, from her size, appearance, and development, is inadmissible. State V. Robinson, 32 Or. 43, 48 Pac. 357. That the parents of a prosecutrix for rape have testified to her age does not render the opinions of others as to her age incompetent. State V. Grubb, 55 Kan. 678, 41 Pac. 951. A physician well acquainted with the prosecutrix on a trial for rape of a girl under fifteen years of age may testify that at the time of the alleged intercourse he knew her physical appearance with reference to size and development, and that judging therefrom she was seventeen or eighteen years old. Bice v. State, 37 Tex. Crim. Rep. 38, 38 S. W. 803. The age of the minor, for selling liquor to whom a person is on trial, may be proved by witnesses first describing his appearance and then giving their opinion as to his age. State v. Douglass, 48 Mo. App. 39; Jones v. State, 32 Tex. Crim. Rep. 108, 22 S. W. 149. In a prosecution for selling liquors to minors, testimony of a witness as to the effect their physical appearance produced on the mind of the witness as to the ages of the minors is admissible, being the impres- sion made upon the mind of the witness himself, and not his opinion as to the impressions made upon the minds of others. Garner v. State, 28 Tex. App. 561, 13 S. W. 1004. Witness may testify he believed from the appearance of certain persons to whom defendant sold intoxicating liquors that they were minors, although he does not know their ages, — especially where they lack several years of their majority. State v. Bernstein, 99 Iowa, 5, 68 N. W. 442. 6. Cross-examining witness as to capacity to judge. A witness who has given his opinion as to the age of a person may be asked on cross-examination to give his opinion as to the AGE. 165 age of a bystander, and the bystander may be called to testify to his age in rebuttal, to show that the opinion of the first wit- ness is of little value.' 1 Louisville, N. A. & C. E. Co. v. Falvey, 104 Ind. 409, 3 N. E. 389, 397, 4 N. E. 908. The contrary principle applies in case of an opinion on a subject wholly a matter of opinion, such as the value of land ; where the capacity of one witness cannot be impugned by contradicting his opinion as to the value of another parcel, not within the issue. 7. Inspection. Age is determinable by inspection, by court or jury;' and by examination by experts, and receiving their opinions as witnesses.^ 1 People ex rel. Ziegler v. Special Sessions Ct. Justices, 10 Hun, 224; N. Y. Penal Code § 19; amended by Laws 1888, chap. 145 (inspection to determine age of child). See also Criminal Trial Brief. In Com. V. Emmons, 98 Mass. 6, it was held competent for the jury to take into consideration, on the question of the age of a witness and whether he was a minor, his appearance on the stand. Bigelow, Ch. J., adds: "There are cases where such an inspection would be satisfac- tory evidence of the fact." This case was followed in Keith v. New Haven & N. Co. 140 Mass. 175, 3 N. E. 28. In Bird v. State, 104 Ind. 384, 3 N. E. 827, the court held, but with some hesitation, on the authority of Ihinger v. State, 53 Ind. 251, that the appearance of the person in question as seen by the jury, and as mani- fested while testifying as a, witness, was not competent evidence for the jury on the question whether one dealing with or entertaining him acted in good faith believing him to be of age. 8 N. Y. Penal Code, § 19. A nonexpert cannot give his opinion on the question of age. Martin v. State, 90 Ala. 602, 24 Am. St. Eep. 844, 8 So. 858. 8. Age of document. To qualify a witness to express an opinion as an expert upon the age of handwriting, it is not enough that he has had long experience in passing upon the genuineness of writings old and new.' 1 Clark V. Bruce, 12 Hun, 271, approved in Cheney v. Dunlap, 20 Neb, 265, 57 Am. Rep. 828, 29 N. W. 925. Compare People v. Brotherton, 47 Cal. 388, 395. And see Handwriting. 166 BEIEP ON FACTS. In Eisfield v. Dill, 71 Iowa, 442, 32 N. W. 420, it was held that a witness who had been a county auditor; another who had been a teacher of penmanship for twenty- five or thirty years; and others who were at- torneys, one of them of long practice; and all of whom stated that they were familiar with old papers and writings, and thought they were capable of giving an opinion upon the question, — were com- petent; and that it was not necessary that such a witness should have chemical knowledge. All indorsements made upon a deed, and all certificates attached thereto, which in any manner indicate its age, are proper for consideration in determining whether it is an ancient instrument. Bell v. Hutchings, — Tex. Civ. App. — , 41 S. W. 200. 9. Age of horse. An impression or cast of the mouth of the horse, proved by the person who took it, is admissible in evidence as to its age.* 1 Earl T. Lefler, 46 Hun, 9. (It is classed with diagrams, photographs, etc.) AGENCY. AGENCY. I. Pkoving Agency ob Authority. 1. Reputation. 2. Direct testimony. a. In general. b. By agent; implied authority. 3. Necessity of written authority. a. In general. b. Of sealed authority. 4. Best and secondary evidence of authority. 5. Conditions precedent. 6. Admissions of principal. 7. Admissions and declarations of agent. a. In general. b. In connection with evidence of ratification. 8. Appearing to be in charge of business. 9. Ownership and use. 10. Form of commercial documents. 11. Charging a commission. 12. Opinion as to powers. 13. Course of dealing. a. In general. b. Transactions with others persons. V. Similarity of transactions. d. Single transaction not enough. 14. Unauthorized signing of name without indication of agency. 15. Unauthorized acts of wife or child. 16. Relationship. 17. Joint interest. 18. Presumption of continuance. 19. Scope of authority. a. Local or trade usage. b. To indorse check. c. To take note payable to himself. d. To cancel contract. e. To receive payment of price. f. To receive payment of negotiable paper. g. To receive payment of bond and mortgage. 20. Ratification. II. Disproving Agency or Authority. 21. General reputation. 22. Separation of husband and wife. 23. Revocation. a. In general. b. By death or incapacity. See also Contradiction; Corroboration; Ratification. 167 168 BEIBF Ol^ PACTS. I. Proving Agency oe Authoeitt. 1. Eeputation. Evidence that one alleged to be agent for the defendant is reputed to be such agent as incompetent, unless as part of evi- dence of holding out to the world as agent.^ 1 Perkins v. Stebbins, 29 Barb. 523. Otherwise of revocation, see § 37 this title. Evidence of general reputation is inadmissible to establish agency. Trowbridge v. Wheeler, 1 Allen, 162. General reputation is not sufficient to establish the fact of agency. Dyer V. Winston, 33 Tex. Civ. App. 412, 77 S. W. 227. An advertisement stating that certain persons are agents for another is inadmissible to prove the agency. Joseph Schlitz Brewing Co. v. Bar- low, 107 Iowa, 252, 77 N. W. 1031. 2. Direct testimony. a. In general. — Testimony by an assumed principal that a person was acting as agent not objectionable as involving only legal conclusions.^ And a witness who has knowledge of the fact may testify that a third person was defendant's agent.^ But a witness cannot testify that a person was acting as agent for third persons, where it is not shown that he had any personal knowledge of the alleged agency, since agency in such case would not be a fact, but a mere opinion or deduction of the witness, unsupported by facts.* 1 Knapp V. Smith, 27 N. Y. 277. s. p. Ee New York C. & H. R. R. Co. 33 Hun, 274 (testimony that he was acting under instructions from the president, presumptive evidence of agency for company). 2 Blowers v. Southern R. Co. 74 S. C. 221, 54 S. E. 368. If a railroad company sells tickets as the agent of another company, the fact of such agency may be proved by the testimony of its general passenger agent. Chiles v. Southern R. Co. 69 S. C. 327, 48 S. E. 252. 3 Guy V. Lee, 81 Ala. 163, 2 So. 273. h. By agent; implied authority. — The fact of agency may be proved by the testimony of the agent himself.' But a sub- agent's testimony has been held not sufficient to establish his relation as agent of the principal.* AGENCY. 169 Wlien the alleged agent is examined as a witness on a ques- tion of implied authority, he should be required to state the facts relied on as raising implied authority, and should not be asked whether or not he had authority to do the act in question, for this is asking for a conclusion.* 1 Fritz V. Chicago Grain & Elevator Co. 136 Iowa, 699, 114 N. W. 193 ; O'Neill V. Wilcox, 115 Iowa, 15, 87 N. W. 742; Heckman Lumber Co. v. Kittrell, 80 Ark. 228, 96 S. W. 988; Smith v. Delaware & A. Teleg. & Teleph. Co. 64 N. J. Eq. 770, 53 Atl. 818; Kean v. Landrum, 72 S. C. 556, 52 S. E. 421. An alleged agent may testify to the actual transactions between himself and the alleged principal, tending to establish the agency. Brown V. Cone, 80 App. Div. 413, 81 N. Y. Supp. 89. 8 Lucas V. Rader, 29 Ind. App. 287, 64 N. E. 488. 3 Abbott, Trial Ev. 43, citing Providence Tool Co. v. United States Mfg. Co. 120 Mass. 35 (action on a, promissory note of a corporation signed ■'G. F., treasurer." Error to allow the defendant to ask G. F. whether or not he had authority to make the note in question ) . S. P. Short Mountain Coal Co. v. Hardy, 114 Mass. 197 (action for over- payment of goods; no error to exclude question). 3. Necessity of written authority. Oi. In general. — A statute requiring an act to be done in writing, but not requiring a seal, does not by implication re- quire that the authority of an agent to do the act in the name of his principal be also in writing; and oral authority is not incompetent, even though a seal was unnecessarily used by the agent. ^ iWorrall v. Munoi, 5 N. Y. 229, 55 Am. Dec. 330 (executory contract for sale of land). s. P. McWhorter v. McMahon, 10 Paige, 386, affirming Clarke, Ch. 400 (executory contract to convey lands signed by one partner in firm's name ) . Merritt v. Clason, 12 Johns. 102, 7 Am. Dee. 206, affirmed in 14 Johns. 484 (broker's note binding both parties under statute of frauds). s. p. Dykers v. Townsend, 24 N. Y. 57. First Nat. Bank v. Ballou, 49 N. Y. 155 (authority to make new promise in writing which will take debt out of statute of limitations). Dis- tinguished in McMuUen v. Rafferty, 24 Hun, 363, 366. h. Of sealed authority. — A statute requiring an act to be done under seal, by implication requires that the authority of lYO EEIBF ON FACTS. an agent to do the act in the name of his principal be also under seal. If the statute only requires the act to be in writing, the fact that a seal is used does not require that the authority to execute it be under seal.^ iWorrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330 (holding that the com- mon-law rule, that the authority to execute a deed must always he by deed, is to this extent relaxed under American authorities). 4. Best and secondary evidence of authority. Where there is no general evidence of agency or of holding out as agent, and the party seeking to prove agency relies on specific authority for a particular act, such authority, if in writing, cannot be proved by oral evidence, unless a foundation for secondary evidence is first laid.^ 1 United States v. Boyd, 5 How. 29, 12 L. ed. 36. (Sureties seeking to show concealment on the part of the government of defalcation existing when their bond was taken, cannot prove that an examination of the officer's accounts was made by one presenting a letter as written au- thority to make the examination, without producing the letter, or ac- counting for its absence.) When agency was constituted by writing, and is directly in issue, it can- not be proved orally, until a foundation for secondary evidence has been laid. De Baril v. Campoy y Pardo, — Pa. — , 20 W. N. C. 65, 8 Atl. 876. Nor varied by oral evidence. Bowman v. Tagg, 5 Sadler (Pa.) 74, 19 W. N. C. 147, 8 Atl. 384 (power of attorney). Parol evidence by an agent as to the nature and extent of his authority is inadmissible, where his authority was conferred by a written in- strument, unless the failure to produce such instrument is sufficiently accounted for. Wicktorwitz v. Farmers' Ins. Co. 31 Or. 569, 51 Pac, 75. Evidence of waiver of proofs of loss by an alleged special agent of an insurance company is not inadmissible on the ground that the agency has not been established, where the alleged agent has testified to facts tending to show agency, although it afterwards appears that his con- tract of employment is in writing, where he testifies that his duties were to go to such places, and do such work, as he was instructed from the office of the manager to do, justifying an inference that the written contract does not specify his duties. O'Leary v. German-American Ins. Co. 100 Iowa, 390, 69 N. W. 686. AGENCY. 171 5. Conditions precedent. Where conditions precedent, imposea upon the existence of an agency, must be performed before the delegated authority exists at all, the burden is on the party claiming to bind the principal by the agent's acts, to show that such conditions have been fulfilled.^ 1 Parker v. Saratoga County, 106 N. Y. 398, 13 N. E. 308. There is a distinction between a conditional autliority, where the condi- tion precedent must be performed before the exercise of the author- ity, and an absolute authority within certain limitations peculiarly within the agent's knowledge, where the representations of the agent that his act is within such limitations are binding upon the principal. Merchants' Bank v. Griswold, 72 K. Y. 472, 28 Am. Rep. 159, affirm- ing 9 Hun, 561, and citing cases. 6. Admissions of principal. The admission of the principal as to the fact or scope of agency, whether such admission be express or implied, is com- petent against the principal,^ unless the act authorized is re- quired by law to be under seal, or the authority is required by law to be in writing.'' 1 Doyle V. St. James, Church, 7 Wend. 179 (holding an express admission of the authority of the agent sufficient to support referee's finding of money paid by defendant). Johnson v. Ward, 6 Esq. 47 (holding agent's affidavit used upon a motion for adjournment, put in by defendant, the principal, — admissible to prove the fact of agency). American Exp. Co. v. Lankford, 2 Ind. Terr. 18, 46 S. W. 183. (The admis- sions of the principal are competent evidence to establish the agency.) 2 Blood V. Goodrich, 9 Wend. 68, 24 Am. Dee. 121, and again, after new trial, 12 Wend. 525, 27 Am. Dec. 152 (applying this rule to exclude evidence that the principal had orally admitted the existence of writ- ten authority, until a foundation for secondary evidence had been laid) . s. p., Admissions and Declabations, § 5. 7. Admissions and declarations of agent. a. In general. — Although the admissions and declarations of a person, even if made at the time of the act, are not evidence (except as against himself) of the fact of his agency,* nor of its scope,* unless connection with the alleged principal is shown, 172 BEIEF ON FACTS. yet slight evidence is sufficient to show connection ; ' and when any competent evidence of the fact has been received the declarations of the alleged agent as to the fact of his agency,* or its scope,® made in the course of the transaction in question, are competent. 1 Howard v. Norton, 65 Barb. 161. Sax V. Davis, 71 Iowa, 406, 32 N. W. 403; Memphis & V. R. Co. v. Cocke, 64 Miss. 713, 2 So. 495. Stringham f. St. Nicholas Ins. Co. 4 Abb. App. Dec. 315, 320 (entries in a, policy book kept by a local insurance agent not admissible to show the power of the agent to assent to an assignment of the policy.) Marvin v. Universal L. Ins. Co. 85 N. Y. 278, 282, 39 Am. Eep. 657 (sign- ing receipt as "general agent" insufficient in absence of any evidence showing knowledge on the part of the principal of the agent's assump- tion of such title of authority). Deck V. Johnson, 1 Abb. App. Dec. 497 (declarations of husband to bind wife's separate estate ) . Brigham v. Peters, 1 Gray, 139, 145; Proctor v. Tows, 115 111. 138, 3 N. E. 569; French v. Wade, 35 Kan. 391, 11 Pac. 138; Combs v. Hodge, 21 How. 397, 16 L. ed. 115 (holding agent's letter insiiflScient to prove that he had the power of attorney mentioned in it). Eussell V. State, 71 Ala. 348 (criminal case). Agency canjiot be proved by the declarations of the alleged agent. Cole- man V. Colgate, 69 Tex. 88, 6 S. W. 553; Page v. Cortez, — Tex. Civ. App. — , 31 S. W. 1071; Johnson v. Park, 13 Ky. L. Eep. 437, 17 S. W. 273; Missouri P. E. Co. v. Johnson, 55 Kan. 344, 40 Pac. 641; St. Louis & S. F. R. Co. v. Kinman, 49 Kan. 627, 31 Pac. 126; National Bank of Commerce v. Morris, 125 Mo. 343, 28 S. W. 602; Santa Cruz Butchers' Union v. IX. L. Lime Co. — Cal. — , 46 Pac. 382; State v. Harris, 51 La. Ann. 1105, 26 So. 64; Halverson v. Chicago, M. & St. P. R. Co. 57 Minn. 142, 58 N. W. 871; Fleming v. Ryan, 9 Misc. 496, 30 N. Y. Supp. 224; Forbes v. Haas, 32 N. Y. S. R. 107, 11 N. Y. Supp. 47; Lyon v. Brown, 31 App. Div. 67, 52 N. Y. Supp. 531; Foster V. Bookwalter, 78 Hun, 352, 29 N. Y. Supp. 116; Alger v. Turner, 105 Ga. 178, 31 S. E. 423; Abel v. Jarratt, 100 Ga. 732, 28 S. E. 453; Taylor v. Hunt, 118 N. C. 168, 24 S. E. 359; Pepper v. Cairns, 133 Pa. 114, 7 L.R.A. 750, 19 Am. St. Rep. 625, 19 Atl. 336; Heusinkveld V. St. Paul F. & M. Ins. Co. 106 Iowa, 229, 76 N. W. 696; North v. Metz, 57 Mich. 612, 24 N. W. 759; Wait v. Baldwin, 60 Mich. 622, 1 Am. St. Rep. 551, 27 N. W. 697; Curran v. Pullman Palace Car Co. 27 111. App. 572; Cleveland, C. C. & St. L. R. Co. v. Jenkins, 75 111. App. 17; Hoge v. Turner, 96 Va. 624, 32 S. E. 291; Barstow v. Pine Bluff, M. & N. O. R. Co. 57 Ark. 334, 21 S. W. 652; Anheuser- AGEITCT. 173 Busch Brewing Asso. v. Murray, 47 Neb. 627, 66 N. W. 635; Norberg V. Plummer, 58 Neb. 410, 78 N. W. 708; Gregory v. Loose, 19 Wash. 599, 54 Pac. 33; Martin v. Johnson, 54 Fla. 487, 44 So. 949; Beekman Lumber Co. v. Kittrell, 80 Ark. 228, 96 S. W. 988; Edmiston v. Hurley, 30 Ky. L. Eep. 557, 99 S. W. 259. Nor by the declarations of another agent of the same principal, unless he was authorized by the principal to make the declaration, or unless it was made as part of the res gestae in the performance of some duty appertaijiing to his agency. Hirsch v. Oliver, 91 Ga. 554, 18 S. E. 354. And the declarations of a husband are inadmissible to prove that he was the agent of his wife. O'Callaghan v. Barrett, 50 N. Y. S. K. 166, 21 N. Y. Supp. 368; Wolfe v. Benedict, 48 N. Y. S. R. 195, 20 N. Y. Supp. 585; Donaldson v. Everhart, 50 Kan. 718, 32 Pac. 405. In an action by the principal to enforce a contract made by the agent the latter's declarations made as part of the res gestw are admiscvble to prove the agency. Williamson v. Tyson, 105 Ala. 644, 17 So. 336. So, too, the alleged agent's declarations are admissible to show that he held himself out as such agent. Parker v. Bond, 121 Ala. 529, 25 So. 898; White v. Elgin Creamery Co. 108 Iowa, 522, 79 N. W. 283. And to show the understanding upon the subject of one dealing with him. Gore V. Canada Life Assur. Co. 119 Mich. 136, 77 N. W. 650. As that he dealt with the other as an agent. Bergtholdt v. Porter Bros. Co. 114 Cal. 681, 46 Pac. 738. Or to impeach the agent's testimony. McPherson v. Pinch, 119 Mich. 36, 77 N. W. 321. The rule that agency cannot be proved by the acts and declarations of the agent is modified where the principal is an artificial individual, all of the acts of which must be done through agents. Missouri P. R. Co. V. Simons, 6 Tex. Civ. App. 621, 25 S. W. 996. Nor does the rule exclude testimony by an alleged agent as to the fact of agency. Nyhart v. Pennington, 20 Mont. 158, 50 Pac. 413; O'Leary v. German- American Ins. Co. 100 Iowa, 390, 69 N. W. 686 ; Van Sickle V. Keith, 88 Iowa, 9, 55 N. W. 42; Fisher v. Denver Nat. Bank, 22 Colo. 373, 45 Pac. 440; Ream v. McElhone, 50 Kan. 409, 31 Pac. 1075. He cannot be restricted in his evidence to the mere words of the principal by which the agency was conferred. Lawall v. Groman, 180 Pa. 532, 57 Am. St. Rep. 662, 37 Atl. 98. The authority of an agent may be proved by himself as a basis for quali- fying himself to give testimony for his principal. Roberts v. North- western Nat. Ins. Co. 90 Wis. 210, 62 N. W. 1048. Agent's admissions not competent to prove agency. Sax v. Davis, 81 Iowa, 692, 47 N. W. 990; Mullanphy Sav. Bank v. Schott, 135 111. 655, 25 Am. St. Rep. 401, 26 N. E. 640; Three Rivers Nat. Bank v. Gilchrist, 83 Mich. 253, 47 N. W. 104; Henning v. Western U. Teleg. Co. 43 Fed. 131; Salmon Falls Bank v. Leyser, 116 Mo. 51, 22 S. W. 504. 174 BEIEF ON FACTS. 8Dowden v. Cryder, 55 N. J. L. 329, 26 Atl. 941. The scope of an agent's authority cannot be shown by his unauthorized declarations or acts. Alt v. Grosclose, 61 Mo. App. 409. Unless such declarations were known to, acquiesced in, or ratified by, the principal. Lakeside Press & Photo-Engraving Co. v. Campbell, 39 Fla. 523, 22 So. 878; Q. W. Loverin-Browne Co. v. Bank of Buffalo, 7 N. D. 569, 75 N. W. 923. An agent may testify as to the nature and extent of his authority where it rests in parol, although his declarations to third persons are not competent to prove the fact of agency. Wicktorwitz v. Farmers' Ins. Co. 31 Or. 569, 51 Pac. 75; Howe Maeh. Co. v. Clark, 15 Kan. 494. 3 See following §§ 8-13, this title. The acts and declarations of an alleged agent are inadmissible to prove the alleged agency, unless the principal is in some way connected there- with. Mills V. Berla, — Tex. Civ. App. — , 23 S. W. 910; Nostrom V. Halliday, 39 Neb. 828, 58 N. W. 429. 4 Corning v. Walker, 14 N. Y. Week. Dig. 314 (holding that after another witness had testified that the alleged agent was general manager evi- dence of the declaration of the latter to the same effect became compe- tent. Reversal for exclusion) . If the agency is otherwise presumptively established, the agent's declara- tions may be received in corroboration. Ham v. Brown Bros. 2 Ga. App. 71, 58 S. E. 316. And it makes no difference that the agent did not disclose the fact that he was acting as agent. Ferguson v. Hamilton, 35 Barb. 427, 441, 442. Evidence of the acts of an alleged agent pertaining to his business as such, and of his declaration that he was acting as agent in the par- ticular transaction, is admissible where there is independent evidence tending to prove the agency. Worth v. Ollis, 1 Mo. App. Rep. 674. Where evidence has been adduced tending to prove the existence of an agency or to make out a prima facie case thereof, it is competent to prove all the facts and declarations of the alleged agent in and about the business, including his declaration that he was a general agent for the alleged principal. Gibson v. Snow Hardware Co. 94 Ala. 346, 10 So. 304. s Where an agent has authority to draw drafts if necessary, his representa- tions in negotiating one, as to its necessity and purpose, are part of the res gestce. Merchants' Bank v. Griswold, 72 N. Y. 472, 28 Am. Rep. 159, affirming 9 Hun, 561. h. In connection with evidence of ratification. — Evidence that the alleged agent said that he was agent is competent in AGENCY. 175 connection with an offer to prove rati2.catlon of his act, or with other evidence tending to show a holding out.* 1 Howard v. Norton, 65 Barb. 161, 165. Adoption by alleged principal of agreement made in his behalf by an al- leged agent is sufficient proof of agency to admit of the introduction of declarations of the alleged agent. Barbee v. Spivey, — Tex. Civ. App. — , 32 S. W. 345. The declarations of an alleged agent at the time of a transaction, that he was acting for the alleged principal, are competent as part of the res gestce when followed by subsequent acts of ratification by the alleged principal, although not admissible to establish the agency. Snyder V. Gardner, 13 Misc. 626, 34 N. Y. Supp. 936. 8. Appearing to be in charge of business. To sustain an inference that a person had authority to repre- sent a party in the ordinary incidents of business, it is suffi- cient to show that, at the time of the transaction in question, such as making a demand or offer or giving a notice, he was apparently in charge of the business at the proper place in the party's place of business.* So, after proving that the principal acted through an agent, conversation with a person representing himself to be such agent, without further identification, is competent.* But the mere fact of being employed about the principal's place is not enough.^ 1 Leslie v. Knickerbocker L. Ins. Co. 63 N. Y. 27 (holding in an action in an insurance policy that the jury could well find, in the absence of any evidence to the contrary, that the person who stood behind the cashier's desk in the company's office was authorized to bind the com- pany by a promise to give the assignee of the policy notice of the time when the premiums were payable ) . Curtis V. Murphy, 63 Wis. 4, 53 Am. Rep. 242, 22 N. W. 825 (night clerk in charge of hotel office assigning rooms presumed to have authority to take charge of money of a guest for safe-keeping). Clifford V. Burton, 1 Bing. 199 (wife shown to have been seen in hus- band's store on more than one occasion apparently conducting the business in his absence, presumed to have authority to offer to settle for a bill of goods delivered there ) . Dunn V. Star F. Ins. Co. 19 N. Y. Week. Dig. 531 (person apparently in charge of the defendant's office for the transfer of stock on the de- fendant's books presumed, in the absence of evidence to the contrary, to 176 BEIEF ON FACTS. have authority to represent the company for purpose of transferring stock ) . Indiana, B. & W. R. Co. v. Adamson, 114 Ind. 282, 15 N. E. 5; Bush v. Brooks, 70 Mich. 446, 38 N. W. 562 (openly acting as chief engineer of a railroad in supervising its work). A finding that a certain person had authority to bind a fire insurance com- pany by the issuance of binders is justified by the evidence that he occupied an office leased by the company, which had supplied him with stationery, upon which his name appeared as agent, and that it there- after received premiums and issued policies to take the place of some of the binders. Schlesinger v. Columbian F. Ins. Co. 37 App. Div. 531, 56 N. Y. Supp. 37. No other proof of agency is necessary to show authority to issue a bill of lading of shipper's receipt than the fact that the agent acted as such in the proper place for receiving goods for the carrier, and was in possession of the company's stamp to be used on such receipts, and that the company took possession of the goods and caused them to be shipped, with knowledge of the receipt, which it must be presumed the company had before they were shipped. Hansen v. Flint & P. M. R. Co. 73 Wis. 346, 9 Am. St. Rep. 791, 41 N. W. 529. 2 Titus v. Glens Falls Ins. Co. 8 Abb. N. C. 315, s. c, 81 N. Y. 410. That a person who acted in behalf of an insurance company, and denied liability, was of the same name as the person whom the company had in a letter said it would send, is sufficient to go to the jury upon the question of his agency. Ro» v. Dwelling House Ins. Co. 149 Pa. 94, 34 Am. St. Rep. 595, 23 Atl. 718. 8 Larter v. American Female Guardian Soc. 1 Robt. 598. 9. Ownership and use. To sustain an inference in favor of a third person, that a person in charge of property was the agent or servant of a party, it is sufficient to show that the property belonged to such party.^ 1 Norris v. Kohler, 41 N. Y. 42. (Evidence that a runaway team which injured plaintiff belonged to defendant is sufficient to submit to the jury the question whether the driver was defendant's servant.) 10. Form of commercial documents. The form of invoices or similar communications passing be- tween the alleged principal and agent is competent evidence as against either, as tending to show the fact * and character ^ of the agency. 1 Armstrong v. Stokes, L. R. 7 Q. B. 598, 3 Moak, Eng. Rep. 217 (form of AGENCY. 177 bill of invoice from agent to principal, as showing agency, to sustain action against an undisclosed principal ) . The form of the invoice is not conclusive. Beebe v. Mead, 33 N. Y. 587. Compare Sutton v. Crosby, 54 Barb. 80, vphere a bill of items was held evidence of a sale. Agency may be established, in the absence of better evidence, by facts tending to show recognition by the principal of the alleged agent's au- thority, — such as communications between the principal and agent in which the latter's authority is expressed or impliedly admitted. Ar- thur V. Gard, 3 Colo. App. 134, 32 Pac. 343. 2 Whitaker v. Chapman, 3 Lans. 155, 157 (holding that in an action brought by a principal against factors for proceeds of goods consigned, where defendants denied that they acted in a fiduciary capacity, their circular delivered to plaintiff before their dealings commenced, soliciting con- signments, and a bill of invoice and stencil plate with their firm name, were admissible as tending to show the character in which they acted. 11. Chari^ing a commission. The charging by the alleged agent of a commission is evidence of the relation of principal and agent, if there is some evidence to connect the principal therewith.' 1 Armstrong v. Stokes, L. R. 7 Q. B. 598, 3 Moak, Eng. Eep. 217. (Here the connection was shown by evidence that such charge was in accord- ance with the usual course of business between them in filling other orders. ) Compare Greenwood v. Schumacker, 82 N. Y. 614, where making a profit was held some evidence of a sale. But compare Clough v. Whitcomb, 105 Mass. 482, where it was error to instruct the jury that the allow- ance of a commission to one who solicits orders for sales efi^ected through such orders proves that he was an agent to make a sale binding the principal. A jury may find that one who made false representations as to land was an agent of the vendor, from the fact that he was paid by the vendor, and that the contract was sent to him to be delivered to the purchaser. Dodge V. Tullock, 110 Mich. 480, 68 N. W. 239. Where there is a dispute whether a certain person who was brought to purchase goods by a broker was the agent of the person who actually bought the goods, evidence is admissible to show that he received a commission on the sale from the seller, as in some sense inconsistent with the theory that he was the buyer, and as showing what relation he bore to the transaction. Masterson v. Masterson, 121 Pa. 605, 15 Atl. 652. Abb. Facts — 12. 178 BKIEF ON F^CXS. 12. Opinion as to powers. A question which in effect calls for the opinion of a witness as to the extent of the agent's powers, without showing the source of his knowledge on the subject, is incompetent.^ 1 Bentiinghoff v. Agricultural Ins. Co. 93 N. Y. 495, 500 (holding, in an action on an insurance policy issued by an alleged agent, that a ques- tion addressed by the defendant's counsel to its secretary as to "what was J's authority as agent of the company,'' was properly excluded). It was said there that the proper way to prove his authority was by the production of the power of attorney issued to him, or by resolution of the board of directors. Green v. Boston & L. R. R. Co. 128 Mass. 221, 35 Am. Rep. 370 (holding that an agent shown to have been held out, etc., cannot be asked on cross-examination if he had any authority to do the act in question). 13. Course of dealing. fli. In general. — The acts of an alleged agent are themselves competent evidence of agency if they are of such character and so continued as to justify a reasonable inference that the prin- cipal had knowledge of them, and would not have permitted them if unauthorized.' Very slight evidence of this kind is sufficient to go to the jury against the alleged principal; as the latter has power to show the contrary at once, if the fact were otherwise, and that the acts of the agent were without his knowledge or authority.^ 1 Barnett v. Gluting, 3 Ind. App. 419, 29 N. E. 154, 927. Reynolds v. Collins, 78 Ala. 94 (continuous acting of a person as bank cashier and proof of dealings with him by various persons in that capacity). Evidence that one had acted for one or two years as an agent for a cor- poration, settling its obligations, is sufficient to establish prima facie the fact of an authorized agency. Neibles v. Minneapolis & St. L. R. Co. 37 Minn. 151, 33 N. W. 332. Agent's authority may be inferred from the prior course of dealing be- tween the parties. Wilson v. Wyandance Springs Improv. Co. 4 Misc. 605, 24 N. Y. Supp. 557 ; Hoppe v. Saylor, 53 Mo. App. 4. Or from a long course of dealing by the agent for his principal, who has never repudiated or disputed the agent's acts. Wheeler v. Benton, 67 Minn. 293, 69 N. W. 927; Oberne v. Burke, 50 Neb. 764, 70 N. W. 387. AGENCY. 179 While agency cannot be established by evidence of the acts or declara- tions of the alleged agent, not brought home to the principal. Richard- son & B. Co. V. School Dist. Co. No. 11, 45 Neb. 777, 64 N. W. 218. Yet where such acts are of such a character and so continued as to justify a reasonable inference that the principal had knowledge of them, and would not have permitted them if unauthorized, they are competent evidence of agency. Fowlds v. Evans, 52 Minn. 551, 54 N. W. 743. SFIynn v. Equitable L. Ins. Co. 78 N. Y. 568, 34 Am. Eep. 561 (hold- ing in an action on an insurance policy procured through an alleged subagent of one who the company denied had power to appoint a sub- agent, that the production of a letter from the agent to the subagent, bearing a printed direction to the postmaster thereon to return it to the company if not called for, and another envelope on the back of which was the agent's name lithographed, describing him as a general agent, and letters addressed to him at such office, thus tending to show that he transacted business there, were sufficient to cast upon the company the onus of showing the real truth of its relations to the agent). Evidence that a printed annual statement of an insurance company con- tained among the list of its officers the name of a certain person who was designated as "manager for Iowa," and that such person counter- signed as such manager receipts for premiums on policies issued by the company, sufficiently establishes the fact that such person was the general agent of the company for such state. Van Werden v. Equitable Life Assur. Soc. 99 Iowa, 621, 68 N. W. 892. But the mere fact that the name of a designated person appears on the printed heading of a paper as the "general western manager'' of a designated company is not of itself sufficient to prove that in the transaction in which such paper was used he was acting as the agent of such company. Gaynor v. Pease Furnace Co. 61 111. App. 292. Testimony of a witness that he had been acting as the agent of defendant for a number of years in making sales of flour, and that his contracts as such had always been carried out by defendant, which was corrobo- rated by the testimony of plaintiff, that he had bought flour of the agent for tbree years, and that the contracts had been promptly com- plied with, is sufficient to make a prima facie case of agency. Haubelt Bros. v. Rea & P. Mill Co. 77 Mo. App. 672. But evidence that a person was formerly in another's employ, shared the same office with him after the employment terminated, and sometimes attended to the other's business during periods of the latter's in- sanity, is not of itself sufficient to establish the flduciary relation of principal and agent between them. Stanford v. Mann, 167 111. 79, 47 N. E. 314. Western Transp. Co. v. Hawley, 1 Daly, 327 (where, in an action by a carrier for extra lighterage for the removal of a cargo consigned to the defendant from one pier to another, the only evidence of a diree- 180 BEIEF ON FACTS. tion for the removal was a request signed in their name by the per- son who appeared by the bill of lading to have been the agent who shipped the cargo, and who had been seen in and about their office, it being further shown that the defendants received the goods at the pier to which they were accordingly removed). Platner v. Platner, 78 N. Y. 90 (repeated acts of husband, on behalf of his wife, competent, in a conflict of testimony, as showing his agency for her in another act ) . But a husband's authority to make a loan for his wife will not be pre- sumed from the fact that he has acted for her in other matters. Three Rivers Nat. Bank v. Gilchrist, 83 Mich. 253, 47 N. W. 104. Marine Bank v. Clements, 31 N. Y. 33, affirming 6 Bosw. 166 (uniform practice of corporation to raise money on paper indorsed by its presi- dent, competent as showing his authority to indorse another note). Compare Bunten v. Orient Mut. Ins. Co. 4 Bosw. 254; and see further decision in 8 Bosw. 448, that, to justify a jury in finding that an agent was allowed by his principal to transcend the limitations of his ex- pressed authority, evidence must show, if not a succession of cases, at least several, in which the agent had done acts similar to those for which authority is claimed, and the subsequent acquiescence of the principal therein, upon their coming to his knowledge. As against the alleged agent, evidence that he acted as agent in former transactions may be incompetent. In Richards v. Millard, 56 N. Y. 574, an action by tlie principal to call the alleged agent to account, a charge that the jury might consider the previous relations as bear- ing on the probability of the existence of agency in the transactions in question was held erroneous. h. Transactions with other persons. — Evidence of trans- actions similar to tile one in question, sufficient to establish a habit or course of dealing, is admissible, whether such trans- actions are between the parties,^ or the alleged principal and third persons.^ 1 Gallinger v. Lake Shore Traffic Co. 67 Wis. 529, 30 N. W. 790. 8 Barnett v. Gluting, 3 Ind. App. 419, 29 N. E. 154, 927. Beattie v. Delaware, L. & W. R. Co. 90 N. Y. 643 (holding in an action against a corporation for stone sold and delivered to an alleged agent that his authority to buy may be established by proof of a similar purchase by the agent and payment by the defendant therefor ) . Wood v. Auburn & R. R. Co. 8 N. Y. 160 (authority of agent to submit to arbitration inferred from evidence of principal's acquiescence in similar submissions). AGEITCT. 181 Evidence that bank president had received deposits in its name is ad- missible to establish his agency to receive one which the bank denies he received for it — at least to the extent of showing knowledge and ac- quiescence on the part of the bank. Jumper v. Commercial Bank, 48 S. C. 430, 26 S. E. 725. Merchants' Nat. Bank v. State Nat. Bank, 10 Wall. 604, 19 L. ed. 1008 (presumption of the authority of a bank cashier to buy gold, from the usual buying of exchange). Hill V. Nation Trust Co. 108 Pa. 1, 56 Am. Rep. 189 (authority of an assistant bank teller to certify checks as "good," shown by evidence of a course of dealing as between himself, his principals, and the bank customers ) . Chrysler v. Gray, 17 N. Y. Week. Dig. 446 (holding that where a seminary student arranged with the principal of the school to pay his board due the plaintiff, with services to the principal as teacher, testimony of another student going to show that he had made his arrange- ments for board with the principal of the school, and took his receipts from him with the knowledge of the plaintiff, was admissible ) . Hammond v. Varian, 54 N. Y. 398 (holding that in an action against a father and son upon a promissory note, purporting to be executed by them as joint makers, which was given in the business of the lat- ter and was unquestioned by him, but which was disputed by the former, he claiming that his signature thereto was a forgery, evi- dence tending to prove that he had recognized the validity of, and his liability upon, other similar notes which he himself had not signed after full knowledge that the signature was not his hand- writing, was properly received in conjunction with evidence that the signature was, in fact, made by the son, as tending to show authority in the latter to sign ) . Compare with the last case, Shisler v. Vandike, 92 Pa. 447, 37 Am. Eep. 702 (holding that a forged indorsement cannot be ratified by the person whose name is forged, as the act is criminal and against public policy. Following McHugh v. Schuylkill County, 67 Pa. 391, 5 Am. Rep. 445). S. p. Workman v. Wright, 33 Ohio St. 405, 31 Am. Rep. 546. The distinction between a void and voidable act, so far as it is sus- ceptible of ratification by the principal, seems to be this: Where the fraud is of such character as to involve a crime, the ratification of the act from which it springs is opposed to public policy, and hence cannot be permitted. But where the transaction is contrary only to good faith and fair dealing, where it affects individual interests only, ratification is allowable. Shisler v. Vandike, 92 Pa. 447, 37 Am. Eep. 702. But see People v. Bank of North America, 75 N. Y. 547 (holding that where a clerk had been generally prohibited from indorsing drafts. 182 BEIEF ON FACTS. and specially forbidden on several occasions, the fact that he did indorse them in a few Instances without disapproval is immaterial upon the question of his actual authority, and insufficient under the circumstances to justify an inference of his implied authority). Testimony as to transactions which the witnesses had with a certain agent is competent as tending to show the manner in which he was held out by his principal as agent, and the apparent scope of his authority. Hardwick v. State Ins. Co. 23 Or. 290, 31 Pac. 656. c. Similarity of transactions. — As a general rule the fact of agency cannot be established by proof of the acts of the professed agent, in the absence of evidence tending to show the principal's knowledge of such acts or assent to them ; yet whether the acts are of such character and so continuous as to justify a reasonable inference that the principal had knowl- edge of them and would not have permitted them if un- authorized, the acts themselves are competent evidence of agency.^ One who seeks to support a transaction with an agent, had in the agent's name instead of that of the principal, by a previous course of dealing implying authority, should show that the form of the previous transactions was such as to justify re- liance on the agent's authority.* Agency may be shown by proof of similar acts ratified by the alleged principal.* 1 Reynolds v. Collins, 78 Ala. 94; Watson v. Eace, 46 Mo. App. 546; Forsyth v. Day, 41 Me. 382. ZHogart v. Wherley, h. R. 10 C. P. 630, 14 Moak, Eng. Rep. 474, where it was held that an agent of a firm, who took a draft from their debtor payable to "my order" instead of to ''our order," is not pre- sumed to have been authorized, from mere proof that lie had previous- ly taken drafts in the course of his agency, unless the form of the previous drafts is shown. 3 Evidence that an alleged agent engaged in other transactions of a character similar to that in controversy, which were acted upon and carried out by the alleged principals, is admissible to show his agency in the latter transaction; but it must be confined to acts of that description occurring prior thereto. Mills v. Berla, — Tex. Civ. App. — , 23 S. W. 910. The authority of an agent to do a particular act may, in the absence of special instructions given him by the principal, be inferred from proof AQEjsrCY, 183 that the principal had authorized or ratified similar acts in connec- tion with past transactions of the same character. First Nat. Bank V. Eidpath, 47 Neb. 96, 66 N. W. 37. Proof of similar previous acts of an agent done with the approval of his principal is insufficient to prove his authority, In the absence of evi- dence that the person dealing with him had knowledge of such pre- vious acts, and relied upon them. Peter Schoenhofen Brewing Co. V. Wengler, 57 111. App. 184. See also Abbott, Tr. Ev. 493; and note in 17 L.R.A.(N.S.) 219. d. Single transaction not enough. — Evidence of a single isolated transaction of a similar kind is not alone admissible for the purpose of showing agency.^ 1 Morris v. Bethell, L. R. 4 C. P. 765, 38 L. J. C. P. N. S. 377, 17 Week. Eep. 736, and L. R. 5 C. P. 47, 21 L. T. N. S. 330, 18 Week. Rep. 137; Bartley v. Rhodes, — Tex. Civ. App. — , 33 S. W. 604; Woods V. Francklyn, 46 N. Y. S. R. 396, 19 N. Y. Supp. 377; North v. Metz, 57 Mich. 612, 24 N. W. 759. But see Wilcox v. Chicago, M. & St. P. R. Co. 24 Minn. 269, where it is said: "A single act of the agent, and a recognition of it by the principal, may be so unequivocal and of so positive and comprehensive a character as to place the authority of the agent to do similar acts for the principal beyond any question.'' But the point does not seem to have been much considered. For other cases see note in 17 L.R.A. (N.S.) 219. 14. Unauthorized signing of name without indication of agency. Where relations such as tend to show agency appear, evidence that the assumed agent had previously signed the name of the other party in similar transactions, and that the latter, with knowledge that his name had been used, recognized the sig- natures as his, is competent as tending to show an implied au- thority to sign his name.^ 1 Hammond v. Varian, 54 N. Y. 398 ; Abeel v. Seymour, 6 Hun, 656. Whether reliance thereon must be shown, see Weed v. Carpenter, 4 Wend. 219; Morris v. Bethell, L. R. 5 C. P. 47, 21 L. T. N. S. 323, 18 Week. Rep. 137, L. R. 4 C. P. 765, 38 L. J. C. P. N. S. 377, 17 Week. Rep. 736. 15. Unauthorized acts of wife or child. The payment or other ratification of obligation incurred 184 BEIEF ON FACTS. without authority, by a wife or child, does not necessarily imply authority to incur similar obligations.* 1 Green v. Disbrow, 56 N. Y. 334, holding it error to receive in evidence that the father paid other debts of his son to other persons as tend- ing to show that the son acted as agent for the father in contracting the debt sued for. [Distinguished in Wallis v. Randall, 81 N. Y. 164, 168, affirming 16 Hun, 33.] And see Butts v. Newton, 29 Wis. 632 (where there was no pretense in the evidence that the alleged principal had authorized his wife to act as his agent at any time before she did the acts complained of by him, and it was held that the ratification of one or more of these unauthorized acts was not evidence tending to show her authority to do others, or tending to ratify them). Cited in Gallinger v. Lake Shore Traffic Co. 67 Wis. 529, 30 N. W. 790. 16. Relationship. Mere relationship will not sustain an inference of agency.* iLe Count v. Greenley, 6 N. Y. S. E. 01 (act of father of defendant, with- out any authority, in employing plaintiff, a real estate broker, to sell defendant's real estate), s. p., MoNamara v. McNamara, 62 Ga. 200. Husband not presumed wife's agent. Fechheimer v. Peirce, 70 Mich. 440, 38 N. W. 325; American Mortg. Co. v. Owens, 64 Fed. 249. Agency of husband for his wife may be proved, as in other cases, by acts and words of wife which show previous authorization or subse- quent ratification of his acts as her agent, though it cannot be pre- sumed from the marital relation. Elliott v. Bodine, 59 N. J. L. 567, 36 Atl. 1038. The existence of the marital relation may be considered as a circumstance tending to prove a husband's agency in a transaction in respect to his wife's property. Barnett v. Gluting, 3 Ind. App. 419, 3 N. E. 927, affirming on rehearing 3 Ind. App. 415, 29 N. E. 154. It will be presumed that purchases by a, wife of groceries necessary for family use were made by her as her husband's agent, and that he alone is liable, in the absence of any evidence to the contrary. Lind- holm V. Kane, 92 Hun, 369, 36 N. Y. Supp. 665. The presumption that a wife was acting as the agent of her husband in purchasing necessaries for her use is overcome by the fact that credit was given to her. Ehrich v. Bucki, 7 Misc. 118, 27 N. Y. Supp. 247, Diamond earrings are not such articles as a wife is presumed, from the mere relation of husband and wife, to have authority from her husband to purchase. Bergh v. Warner, 47 Minn. 250, 28 Am. St. Rep. 362, 50 N. W. 77. AGENCY. 185 Authority of a wife to accept surrender of premises leased by her hus- band will not be presumed. Alschuler v. Sehiff, 59 111. App. 51. 17. Joint interest. Proof of joint interest or joint liability is not alone usually sufScient to raise a presumption of agency.^ 1 Wallis V. Randall, 81 N. Y. 164, reversing 16 Hun, 33, and citing cases. Contra: Stephen's Dig. Law of Ev. art. 17. And see Black v. Lamb, 12 N. J. Eq. 108, 122; Cady v. Shepherd, 11 Pick. 400, 22 Am. Dec. 379; Lowe v. Boteler, 4 Harr. & McH. 346, 1 Am. Dec. 410. See the principle stated in Abbott, Tr. Ev. 235, 236. 18. Presumption of continuance. Agency once established is presumed to continue throughout the transaction/ and the burden of proof is on the party al- leging a change.^ The rule that agency proved once to have existed is presumed, in the absence of evidence to the contrary, to have continued,' does not apply to a special agent of such class that a person dealing with him is bound to ascertain the limits of his au- thority,* nor as between principal and agent where no general agency has been shown, but only a succession of transactions.* 1 Parker v. Crilly, 113 111. App. 309; Cheshire Provident Inst. v. Feusner, 63 Neb. 682, 88 N. W. 849. 2 Bergner v. Bergner, 219 Pa. 113, 67 Atl. 999. 8 Link v. Page, 72 Tex. 592, 10 S. W. 699 ; Fassin v. Hubbard, 55 N. Y. 465 (holding that one shown to have been general agent of a dis- solved firm in liquidation in 1860-61 would be presumed to have been such agent in 1862, unless the contrary be shown). See also Friend V. Ward, 1 L.E.A. (N.S.) 891, and cases on note thereto. 4 Crane v. Evans, 1 N. Y. S. R. 216. 5 Richards v. Millard, 56 N. Y. 574 (holding a charge that the jury had a right to look into the pre-existing relations as bearing upon the probabilities of agency in a later transaction erroneous ) . 19. Scope of authority. 0). Local or trade usage. — On a question of implied authority, evidence of custom or usage in a particular trade or business is admissible to prove or disprove th.e scope of the agent's authority.^ 186 r.EIEF ON FACTS. And usage in a particular trade is admissible for the purpose of showing the scope of the agent's authority, whether this usage be known to the principal or not, it being assumed that the parties must have contracted subject to, or with reference to, such usage.*' But neither express authority nor authority implied by law as an incident of the relation between the parties can be varied or enlarged by evidence of a local usage in the particular trade. ^ 1 Compare Commercial Mut. M. Ins. Co. v. Union Mut. Ins. Co. 19 How. 318, 15 L. ed. 636 (proof that presidents of insurance companies in a city had been accustomed to contract orally for issuing policies held evidence of their authority). Turner v. Keller, 66 N. Y. 66 (custom to give notes for goods). Authority. Proof of a custom to deliver goods on the agent's order that goods were not and could not be delivered except on such an order wi?.s held sufficient to justify the submission to the jury of the ques- tion of the agent's authority. Sloss Iron & Steel Co. v. Jackson Architectural Iron Works, 103 App. Div. 316, 92 N. Y. Supp. 1056. 2 Browne, Law of Usage & Customs, 90, 91, citing Bayliflfe v. Butter- worth, 1 Exch. 425, and other cases. Apparent authority of an agent to perform a particular act for his princi- pal may be shown, not only by proof of general custom, or that sucli agent had previously performed similar acts to the principal's knowl- edge, but also by evidence of the nature of business usages, not amounting to general custom, and the fact, if it exists, that the principal is at a great distance, and the agent in the entire charge of the business. Johnston v. Milwaukee & W. Invest. Co. 46 Neb. 480, 64 N. W. 1100. 3 Proof of usage among like agents is inadmissible to show authority of the agent authorized to do certain things by a, written contract to do other things not mentioned in the contract. Graham v. Sadlier, 165 111. 95, 46 N. E. 221, affirming 60 111. App. 522. Evidence of usage or custom in a particular business is inadmissible for the purpose of enlarging the powers of an agent. Dellecella v. Harmonic Club, 34 Mo. App. 179. Contra: Pardridge v. Bailey, 20 111. App. 351. Higgins V. Moore, 34 N. Y. 417 (usage in New York allowing brokers to receive payment for grain sold by them when the seller resides out of the city, incompetent ) . Wheeler v. Newbould, 16 N. Y. 392 (local custom in New York city to sell commercial paper, pledged as security for a, loan, at private sale and for the best price obtainable). AGENCY. 187 Dykers v. Allen, 7 Hill, 497, 42 Am. Dec. 87 (usage among brokers to hypothecate or dispose of stoclc at pleasure, which had been pledged with them, and on payment of the debt to return an equal number of shares of the same kind). But see Lamson v. Sims, 16 Jones & S. 281 (holding that the facts that an agent was authorized by his principal to sell certain real estate, and that it was the custom of the locality to make such sales through brokers, are sufficient to authorize a finding of authority in the agent to employ a broker to negotiate the sale ) . &. To indorse check. — Authority to collect does not imply authority to indorse with the principal's name a check taken in eellection and expressed to be payable to the principal or his order.^ I Robinson v. Chemical Nat. Bank, 86 N. Y. 404, affirming 10 N. Y. Week. Dig. 315 (action against bank for conversion). c. To take note payable to himself. — Although an agent is a general agent, with general power to sell or collect, or both, and take payment either in cash or credit, yet such general power gives him no authority to substitute himself as creditor in place of his principal, or transfer a debt of his principal to himself, by taking in payment thereof a note payable to him- self.^ 1 Scott V. Gilkey, 153 111. 168, 39 N. E. 265 ; Everts v. Lawther, 165 111. 487, 46 N. E. 233 ; Corning v. Strong, 1 Ind. 329 ; Summers v. Hutson, 48 Ind. 228; Robinson v. Anderson, 106 Ind. 152, 6 N. E. 12; Franklin Sav. Bank v. Colby, 105 Iowa, 424, 75 N. W. 346; Baldwin v. Tucker, 112 Ky. 282, 57 L.K.A. 451, 65 S. W. 841; McCulloch v. McKee, 16 Pa. 289; Hoilman v. John Hancock Mut. L. Ins. Co. 92 U, S. 161, 23 L. ed. 539. But in Galbraith v. Weber, 58 Wash. 132, 28 L.R.A.(N.S.) 341, 107 Pac. 1050, it was held that the jury must determine whether or not the authority of an agent in possession of a horse for purposes of sale includes apparent authority to take notes payable to himself for the purchase price, where there is nothing to show that he might not have taken cash in payment. And this decision apparently finds support in the case of Schleicher v. Armstrong. — Tex. Civ. App. — , 32 S. W. 327, holding that where an agent was in the lawful possession of an engine under authority to sell it, the fact that in making the sale he took purchase-money notes payable to himself did not invalidate the purchaser's title to the engine. See also on this question note in 28 L.E.A. (N.S.) 341. 188 BEIEF ON TACTS. d. To cancel contract. — Authority to make a contract for another is not evidence of authority to cancel or surrender it.^ But a general express authority to make contracts in the course of a business implies authority to cancel or surrender contracts made thereunder.* 1 Stil-well V. Mutual L. Ins. Co. 72 N. Y. 385, 392 (holding, in an action by a wife to have restored a policy of insurance taken out by her husband on the latter's life, as her agent, which had been surrendered by him to the company, that the trial judge was justified in finding that the surrender was made without her knowledge or consent ) . Indianapolis Rolling Mill v. St. Louis, Ft. S. & W. R. Co. 120 U. S. 256, 30 L. ed. 639, 7 Sup. Ct. Rep. 542, affirming 26 Fed. 140 (president and superintendent, having authority to bind the company by un- sealed contracts, has implied authority, in good faith, to release any such contract he has made). z Anderson v. Coonley, 21 Wend. 279 (holding that a general agent to buy, though in a particular business only, is presumed to have had power to rescind ) . Otherwise in case of implied authority arising from course of dealing. Harrison v. Burlingame, 48 Hun, 212. (Here the surrender of a, valuable security was without consideration.) An agent may testify as to whether he was authorized by his principal to change the latter's contract, where his authority was conferred by parol. Joseph v. Struller, 25 Misc. 173, 54 N. Y. Supp. 162. e. To receive payment of price. — One selling for a known principal is not presumed, from that fact alone, to have au- thority to receive payment.^ 1 Higgins V. Moore, 34 N. Y. 417 ( sale, by broker, of grain to be shipped by principal known to buyer). The authority of a selling agent to collect pay for goods sold may be in- ferred from circumstances. Luckie v. Johnston, 89 Ga. 321, 15 S. E. 459. Finding that defendant was justified in making payment for piano to plaintiff's agent, who presented a receipt in plaintiff's name signed by himself as agent, is sustained by evidence that she purchased the piano from such agent, and was told by plaintiff, when she asked him if she should pay such agent, that he preferred to have payment made at the office, but would send an agent to collect it, without intimating that she was not to pay the particular agent, although he 'vnderstood that she knew no difference in the authority of such agent and the only other one she knew. Warren v. Halley, 107 Mich. 120, 64 N. W. 1058. AGENCY. 189 There is no presumption that an agent with authority to sell and accept payment for his principal is authorized to receive in payment notes of which he is maker; nor can he be presumed to have authority to accept the notes of third persons in payment of purchase money due his principal. Eunyon v. Snell, 116 Ind. 164, 9 Am. St. Eep. 839, 18 N. E. 522. /. To receive payment of negotiable paper. — ^Mere posses- sion, by the alleged agent, of negotiable paper so expressed or indorsed as to be payable to another person, is not alone any evidence of authority to receive payment for that other. ^ One who relies on a payment made upon a promissory note to a third person must show the latter's authority to collect the note.* iDoubleday v. Kress, 50 N. Y. 410, 10 Am. Rep. 502, reversing 60 Barb. 181 (promissory note payable to order of payee, and not indorsed by him). s. p. Wardrop v. Dunlop, 1 Hun, 325, affirmed without opinion in 59 N. Y. 634. One having a note in his possession may be presumed to be entitled to re- ceive payment, unless the payer has notice to the contrary. Chappe- lear v. Martin, 45 Ohio St. 126, 12 N. E. 448. (Here the payer knew that the principal was dead.) That one to whom money due third person is paid is not in possession of an instrument evidencing indebtedness, is not conclusive of his lack of authority to collect the money, but is merely a circumstance or fact to be considered in the determination of such question. Phoenix Ins. Co. V. Walter, 51 Neb. 182, 70 N. W. 938. 2 The burden is upon the maker of a negotiable promissory note, in an action by the holder thereof, to show authority from the latter to a third person to collect the note, where he relies on a payment to such third person. Bank of University v. Tuck, 101 Ga. 104, 28 S. E. 168; Richards v. Waller, 49 Neb. 639, 68 N. W. 1053; Chandler v. Pyott, 53 Neb. 786, 74 N. W. 263. g. To receive payment of bond and mortgage. — Under the rule that the possession of a bond and mortgage by the attorney of the mortgagee, to whom, as such attorney, the interest had been paid, is sufficient evidence of his authority to receive the principal,^ the person relying on such authority must show that on each occason in respect to which it is relied on the securities were in the attorney's possession.* 190 BEIEF ON IfACTS. Autliority of an attorney to receive the principal of a tend and mortgage not in his possession cannot be inferred from the facts that the loan was made through him, that he drew the securities, and that he had authority to collect interest.^ The party making the payment has the burden of showing the alleged agent's authority to receive it.* 1 Williams v. Walker, 2 Sandf. Ch. 325 ; Followed in Megary v. Funtis, 5 Sandf. 376; and Approved in Smith v. Kidd, 68 N. Y. 130, 23 Am. Rep. 157; Brewster v. Games, 103 N. Y. 556, 9 N. E. 323; Stiger v. Bent, 111 111. 328; Haines v. Pohlmann, 25 N. J. Eq. 179; Adams v. Humphreys, 54 Ga. 496. This presumption terminates with the prin- cipal's death. Megary v. Funtis, 5 Sandf. 376. 2 Williams v. Walker, 2 Sandf. Ch. 325; Quoted with approval in. Smith v. Kidd, 68 N. Y. 130, 23 Am. Rep. 157. 3 Smith V. Kidd, 68 N. Y. 130, 23 Am. Rep. 157. Finding by court that a given person was authorized to receive the prin- cipal and interest due on a particular mortgage is sustained by evi- dence that the mortgagee placed such sums in his hands from time to time to loan when opportunity offered, and that he collected the inter- est and principal, obtaining discharges of the mortgage from time to time as they were paid, crediting the amount to the mortgagee and re- investing the same for him. Ziegan v. Strieker, 110 Mich. 282, 68 N. W. 122. Authority to receive payment of the principal note and an interest coupon note before maturity, by one who had not the possession thereof, is not established by the mere fact that the maker had been accustomed to pay the amount of coupon notes to him before maturity, and that he had paid the same to the holder of the coupons, or even advanced the amount of the coupons to the latter before maturity. ' Chandler v. Pyott, 53 Neb. 786, 74 N. W. 263. 4 Frank v. Tuozzo, 26 App. Div. 447, 50 N. Y. Supp. 71; City Missionary Soc. v. Reams, 51 Neb. 225, 70 N. W. 972. 20. Ratification. The authority of an agent to do the act in question may be shown by evidence that the principal, with full knowledge of the "transaction, ratified it ; and this ratification may be either express,* or implied from his acts,^ or from silent acquiescence^ in the thing done. 1 First Nat. Bank v. Ballou, 49 N. Y. 155, 158 (where the receipt for part payment of a note given by the agent was shown to the principal, and he approved of it). AGENCY. 191 A flndmg that an agent had authority to make a sale is supported by proof that the principal subsequently ratified it. Kraft v. Wilson, — Cal. — , 37 Pac. 790. In an action against heirs to charge the land in their possession with a judgment recovered against the estate and arising from the decedent's liability for exceeding his authority as agent, it is competent for the defendants to show that the principal ratified the transaction com- plained of with full knowledge. Paul v. Grimm, 183 Pa. 330, 38 Atl. 1017. Evidence that the alleged principal adopted acts by his purported agent similar, but more than a year subsequent, to the one in question, is inadmissible upon the issue of authority vel non for the latter act, as the former transactions are too remote. Bartley v. Rhodes, — Tex. Civ. App. — , 33 S. W. 604. i Union Gold-Min. Co. v. Eocky Mountain Nat. Bank, 96 U. S. 640, 24 L. ed. 648, 1 Mor. Min. Rep. 432 (holding that if an agent without au- thority borrows money in the principal's name, who, when it has been applied to his use and payment is demanded of him, fails within a reasonable time to disavow the act, the jury may consider him as assenting to the act). Merchants' Nat. Bank v. State Nat. Bank, 10 Wall. 604, 19 L. ed. 1008 (re- tention of money received through agent, after demand, suflBcient proof of ratification ) . Hankins v. Baker, 46 N. Y. 666 (where the party denying the agency re- ceived from the broker a warehouse order, retained it, and authorized an effort to sell the goods). s. p. Thompson v. Gardiner, L. E. 1 0. P. Div. 777, 18 Moak, Eng. Rep. 328 (evidence that the broker sent a. note of the bargain to the buyer, who kept it without objection until called on to fulfil the contract, when he objected merely on the ground that the broker did not sign it). See also Abbott, Trial Ev. 408. Diedrick v. Richley, 2 Hill, 271 (authority of agent to submit to arbitra- tion conclusively proved by evidence that the principal appeared and proceeded before the arbitrator). Ratification by principal of unauthorized act of agent may be inferred from conduct on his part inconsistent with any intention other than a pur- pose to adopt the agent's act as his own. Oberne v. Burke, 50 Neb. 764, 70 N. W. 387. Agency may be proved by acts ratified or acquiesced in by the principal, by the latter's holding the person out as agent, and by the circum- stances and conduct of the parties toward each other; but a single act of ratification is not necessarily sufficient proof of agency. Tennessee River Transp. Co. v. Kavanaugh Bros. 101 Ala. 1, 13 So. 283. Evidence of acts and conduct of a person alleged to be the agent of a, cor- poration, and of ratification thereof by the corporation, is admissible as tending to prove the agency. Tennessee R. Transp. Co. v. Kava- naugh Bros. 93 Ala. 324, 9 So. 395. 192 BEIEP ON FACTS. If the principal accepts an order for goods obtained by his agent, he is bound by the transaction, even if the agent exceeds his authority. Western Mfg. Co. v. Cotton, 126 Ky. 749, 12 L.E.A.(N.S.) 427, 104 S. W. 758. So if a person accepts the benefit of a contract made for him, even if there is no proof of agency. Black Lick Lumber Co. v. Camp Constr. Co. 63 W. Va. 477, 60 S. E. 409. 8 Weed V. Carpenter, 10 Wend. 404. (Silence of indorser after receiving notice of protest, and failure to appear before default, and even then not until after the maker had absconded, is competent to show rati- fication. ) Eatification by a principal of his agent's unauthorized act may be inferred from evidence tending to show that the principal had knowledge of such unauthorized act, and failed to object thereto. Oberne v. Burke, 50 Neb. 764, 70 N. W. 387. Nature and extent of the authority of an agent may be implied or inferred upon the conduct or acquiescence of the principal. Hooper v. Brad- bury, 69 Mo. App. 632. Subsequent ratification by a principal of an unauthorized contract of an agent will be presumed from the principal's subsequent silence and acquiescence therein, and his adoption of the fruits of the contract. Keim v. Lindley, — N. J. Eq. — , 30 Atl. 1063. The burden of proof is upon one seeking to show a ratification of an un- authorized act of an agent by the acquiescence of the principal, to show that such acquiescence was with knowledge of the facts connected with the transaction. Moore v. Ensley, 112 Ala. 228, 20 So. 744. Eatification may be proved, even by a person who dealt with notice that the alleged agent vyas vyithout authority.'' For ratification is an adoption of the act, and not merely presumptive evidence of the authority.* Parol evidence is admissible to show that a corporation adopt- ed and ratified a contract under seal executed by the corporate officers individually.* 1 Commercial Bank v. Warren, 15 N. Y. 577. * Brisbane v. Adams, 3 N. Y. 129; Commercial Bank v. Warren, 15 N. Y. 577. But compare Gorham v. Gale, 7 Cow. 739. Contra in case of an unauthorized act not done for the principal's benefit. Craighead v. Peterson, 72 N. Y. 279, 28 Am. Eep. 150. Compare Meehan v. Forrester, 52 N. Y. 277, to the effect that blind accept- ance of the benefit may be deemed an adoption of the agent's act. Therefore ratification after suit brought is not competent, as in a common- law action showing adoption, but, if at all, only as evidence tending to show original authority. 3 Williams v. Uncompahgre Canal Co. 13 Colo. 469, 22 Pac. 806. AGENCY. 193 II. DisPEOViNG Agency oe Authoeitt. 21. General reputation. General reputation of revocation of agency may be competent as tending to show notice of it.'' 1 Baker v. Barney, 8 Johns. 72, 5 Am. Dec. 326 (repute of husband and wife living under separation articles competent to terminate presumption of her agency for him). 22. Separation of husband and wife. Notice that husband and wife have separated, and a suit for separation and alimony is pending, implies notice that the husband is no longer agent for his wife in matters in which he has been accustomed previously to act for her.^ 'No presumption of the wife's agency to bind the husband, as, for instance, for domestic supplies, exists after she has left him voluntarily and without cause.^ 1 Whitehead v. New York L. Ins. Co. 102 N. Y. 143, 55 Am. Eep. 787, 6 N. E. 267, modifying 33 Hun, 425, and holding that thereafter forfeiture of a policy on his life for her benefit, on his failure to pay premiums without notice to her, could not be sustained. 2 Johnston v. Sumner, 3 Hurlst. & N. 261, 27 L. J. Exch. N. S. 341, 4 Jur. N. S. 462, 6 Week. Rep. 574; Biffin v. Bignell, 7 Hurlst. & N. 877, 31 L. J. Exch. N. S. 189, 8 Jur. N. S. 647, 6 L. T. N. S. 248, 10 Week. Eep. 322; Abbott, Tr. Ev. 221. In an action against a husband's estate for medical services rendered to a wife living apart from her husband, the presumption is against her authority to bind her husband by contract; and the plaintiff, although ignorant of their separation, must show affirmatively the responsibil- ity of the husband. Vusler v. Cox, 53 N. J. L. 516, 22 Atl. 347. The fact that a husband permitted his wife to order goods after their vol- untary separation, for which he paid, is evidence that he continued the agency which originally arose from the marital relation for the pur- chase of necessaries by her. Raymond v. Cowdrey, 19 Misc. 34, 42 N. Y. Supp. 557. 23. Revocation. a. In general. — A general or continuing agency having been shown, he who relies on the principal's revocation must show notice given thereof; and, as against persons theretofore accus- Abe. Facts — 13. 194 BRIEF OH FACTS. tomed to deal with the agent as such, notice must be brought home to them.^ iClaflin T. Lenheim, 66 N. Y. 301, 305 (holding it error to submit to the jury the question of constructive notice, in the absence of any evi- dence tending to show actual notice. The rule is the same as in case of partnership ) . Compare McNeilly v. Continental L. Ins. Co. 66 N. Y. 23, 28 (holding, in action on an insurance policy, that evidence that after the insured had for a number of years paid the premiums to a local agent the mailing to the insured of a postal card, with the words "Remit direct to home office," was not sufficient proof of notice of revocation to warrant the trial judge to direct a nonsuit). Story, Agency, § 470. h. By death or incapacity. — Death ^ or incapacity * of agent or principal, or of one of a firm of agents, or of one of a firm of principals, is an instant revocation, irrespective of notice.' A povyer coupled with an interest is not revoked by the death of the principal, nor by that of the agent.* 1 Martine v. International L. Ins. Soc. 53 N. Y. 339, 342, 13 Am. Kep. 529 (holding that the surviving partner of a firm of insurance agents could not bind the company by receipt of premium) . 2 Salisbury v. Brisbane, 61 N. Y. 617 (incapacity of one of the firm of agents ) . 3 Marlett v. Jackman, 3 Allen, 287, 295. 4 Grapel v. Hodges, 49 Hun, 107, 1 N. Y. Supp. 823. Contra: McKee v. Cochrane, 7 Mackey, 446. ALTERATIONS. 195 'ALTEEATIONS. 1. Allegation. 2. Presumptions and burden of proof. 3. Effect of alteration on competency as evidence. 4. What is material. 5. Inspection. 6. Signature and body. 7. Effect of call for explanation. 8. Effect of failure to explain. 9. Effect of attempted explanation. 10. Effect of alteration on validity. 11. Competency of witness to explain. 12. Description. 13. Explaining, as immaterial. a. In general. b. As made by third person. c. As made by consent. 14. Extrinsic evidence to supply obliteration. 15. Abstract or memorandum corroborating the testimony. 16. Official document; ancient instrument. 17. Certified copy. See also Accounts; Age; Gentjineness ; Handwbiting; Intent; Opinions. 1. Allegation. If the allegation follows the original instrument only, pro- duction of the altered instrument may be a variance.* If the allegation follows the alteration, and not the original, then, if the allegation is not put in issue, the altered instrument is admissible, and evidence of the alteration is not admissible;* but if the allegation is put in issue, even by a general denial, objection to evidence of a material alteration is not available.* 1 And if the alteration is by the holder, in his own favor, it destroys the effect of the instrument as evidence (see § 10, this title), and in that case, even if such matter must, according to Hirschman v. Budd, L. R. 8 Exeh. 171, 5 Moak, Eng. Eep..361, 42 L. J. Exch. N. S. 113, 28 L. T. N. S. 602, 21 Week. Rep. 582, be specially pleaded, amendment ought to be allowed when the alteration is first disclosed at the trial. But the declaration must be so framed as to seek recovery on an instru- ment in its original form to render it admissible in evidence, where it has been materially and unauthorizedly altered after execution un- 196 BEIEF ON FACTS. der circumstances that do not avoid its obligatory force and effect in its original form. Orlando v. Gooding, 34 Fla. 244, 15 So. 770. 2 Smedberg v. Whittlesey, 3 Sandf . Ch. 320. A bond altered in a material part, and declared on as altered, is admis- sible in evidence without explaining the alteration, unless denied un- der oath. Thompson v. Gowen, 79 Ga. 70, 3 S. E. 910. 3Schwarz v. Oppold, 74 N. Y. 307, affirming 7 Daly, 121 (note sued on) ; Wriges v. Beauerle, 5 N. Y. Week. Dig. 363 (contract sued on, and counterclaim thereon alleged by defendant; and altered contract pro- duced by defendant in support of his counterclaim) ; J. I. Case Thresh- ing Mach. Co. V. Peterson, 51 Kan. 713, 33 Pac. 470 ; Walton Plow Co. v. Campbell, 35 Neb. 175, 16 L.E.A. 468, 52 N. W. 883. Evidence that a provision in regard to notes had been inserted in the contract sued on after it was signed by defendant is admissible under an answer containing a general denial and an allegation that it was expressly agreed at the time the contract was entered into that no notes were to be given by defendant. National Cash Register Co. v. Kiggs, 22 Misc. 716, 50 N. Y. Supp. 35. Under a paragraph of an answer denying the execution of a note, it may be proved that the note was altered after it had been signed, as well as that it had not been delivered. Palmer v. Poor, 121 Ind. 135, 6 L.R.A. 469, 22 N. E. 984. And evidence that the words "with interest" were not contained in a note at the time of its execution is admissible under a general denial of the execution of the note as set out in the com- plaint. Boomer v. Koon, 6 Hun, 645. A material alteration of an official bond set up as a. defense by the sureties may be proved under a denial of each and every allegation as to the execution and delivery of the bond. Fairhaven v. Cowgill, 8 Wash. 686, 36 Pac. 1093. So, the incumbent in an election contest is not required to allege an altera- tion of the ballots in order to introduce evidence thereof. Furguson V. Henry, 95 Iowa, 439, 64 N. W. 292. But evidence that after execu- tion of a written lease an alteration was made which makes no change in the construction nor in the rights or obligations of either party under it, but only affects the nature and kind of evidence required to prove its execution, is inadmissible under a mere denial of the execu- tion of the instrument. Roberts v. Nelson, 65 Minn. 240, 68 N. W. 14. And it seems that to render evidence of a, material alteration in a promissory note admissible under a denial of its execution and de- livery, such alteration must have been made before delivery, or before the attaching of any liability. National Bank v. Nickell, 34 Mo. App. 295. 2. Presumptions and burden of proof. Where the instrument itself discloses no evidence of altera- tion, the burden of establishing the fact of alteration rests upon ALTERATIONS. 197 the party asserting it.^ After the fact of alteration has been established, as well as that it was made after execution, the party claiming under the instrument as altered has the burden of showing that the alteration was made with the knowledge and consent of the other party.^ Where the alteration is ap- parent on the face of the instrument, the cases are conflict- ing." 1 Montgomery v. Crossthwait, 90 Ala. 563, 12 L.R.A. 140, 24 Am. St. Eep. 832, 8 So. 498; Thacker v. Booth, 9 Ky. L. Rep. 745, 6 S. W, 460; McClintock v. State Bank, 52 Neb. 130, 71 N. W. 978; Conable v. Keeney, 40 N. Y. S. E. 939, 16 N. Y. Supp. 719; Smith v. Parker, — Tenn. — , 49 S. W. 285; Duggar v. Dempsey, 13 Wash. 396, 43 Pac. 357; Eiley v. Riley, 9 N. D. 580, 84 N. W. 347. 8Shroeder v. Webster, 88 Iowa, 627, 55 N. W. 569; Martin v. Buffaloe, 121 N. C. 34, 27 S. E. 995; State ex rel. Howell County v. Findley, 101 Mo. 368, 14 S. W. 111. s I. Authorities holding that there is no presumption either way, but that the paper should go to the jury with the evidence as a question solely for them. Printup v. Mitchell, 17 Ga. 558, 63 Am. Dec. 258; Hunt v. Gray, 35 N. J. L. 227, 10 Am. Rep. 232; Hayden v. Goodnow, 39 Conn. 164; Ely v. Ely, 6 Gray, 439; Catlin Coal Co. v. Lloyd, 180 111. 398, 54 N. E. 214; De Long v. Soueie, 45 111. App. 234; Hagan v. Merchants' & B. Ins. Co. 81 Iowa, 321, 25 Am. St. Rep. 493, 46 N. W. 1114; McGee v. Allison, 94 Iowa, 527, 63 N. W. 322; Neil v. Case, 25 Kan. 510, 37 Am. Rep. 259; Wolferman v. Bell, 6 Wash. 84, 36 Am. St. Rep. 126, 32 Pac. 1017 ; Goodin v. Plugge, 47 Neb. 284, 66 N. W. 407. II. Authorities holding that there is a presumption that an alteration in a deed was made before execution. Little v. Hemdon, 10 Wall. 26, 19 L. ed. 878; Long v. Patton, 154 U. S. 573, and 19 L. ed. 881, 14 Sup. Ct. Rep. 1167; White v. Hass, 32 Ala. 430, 70 Am. Dec. 548; Paramore V. Lindsey, 63 Mo. 63; Hanrick v. Patrick, 119 U. S. 156, 172, 30 L. ed. 396, 405, 7 Sup. Ct. Rep. 147 ; Kendrick v. Latham, 25 Fla. 819, 6 So. 871 ; Dorsey v. Conrad, 49 Neb. 443, 68 N. W. 645 ; Rodriguez v. Haynes, 76 Tex. 225, 13 S. W. 296; Gunkel v. Seiberth, 27 Ky. L. Rep. 455. 85 N. W. 733. Contra: Ely v. Ely, 6 Gray, 439, holding it error so to charge, and that the burden is always on the party ad- ducing the instrument; but the appearance of the paper may be enough to sustain a, finding that the alteration was made before execution. This rule has been extended to other instruments. Wilson v. Hayes, 40 Minn. 531, 4 L.R.A. 196, 12 Am. St. Rep. 754, 42 N. W. 467 (promis- sory note) ; Yakima Nat. Bank v. Knipe, 6 Wash. 348, 33 Pac. 834 (promissory note) ; Kleeb v. Bard, 12 Wash. 140, 40 Pac. 733 (bond) ; 198 BEIEF ON FACTS. Franklin v. Baker, 48 Ohio St. 298, 29 Am. St. Eep. 547, 27 N. E. 550 (promissory note) ; Cross v. Aby, 55 Fla. 311, 45 So. 820. The presumption is not destroyed by the suspicious character of the al- teration, even though it may furnish strong evidence against the pre- sumption (Grimes v. Whitesides, 65 Mo. App. 1), or may be so sus- picious as of itself to authorize a finding contrary to the presumption. Noah y. German Ins. Co. 69 Mo. App. 332. Contra: Collins v. Ball, 82 Tex. 259, 27 Am. St. Eep. 877, 17 S. W. 614, which holds that the rule that interlineations in a, deed are presumed to have been made before signing does not apply unless the deed and surrounding cir- cumstances are free from suspicion. Alterations in an instrument will be presumed to have been made before its execution where they serve to render the instrument consistent with itself. Westmoreland v. Westmoreland, 92 Ga. 233, 17 S. E. 1033. In- terlineations in a, deed in the handwriting of the officer who actually attested it are presumed to have been made at or before its execution. Bedgood v. McLain, 89 Ga. 793, 15 S. E. 670. So, alterations in the entry of the levy upon an execution will, in the absence of evidence to the contrary, be presumed to have been made by or under the direction of the officer at the time the entry was made. Collins v. Boring, 96 Ga. 360, 23 S. E. 401. And, in the absence of a statutory affidavit deny- ing its genuineness, the law will presume that a duly registered deed, which by statute is admissible in evidence without further proof, was executed as offered in evidence, and, if alterations appear to have been made therein, that they were made at or before its execution. Ibid.; Norton v. Conner, — Tex. — . 14 S. W. 193. But where the genuineness of a promissory note is denied under oath, the burden of explaining a material alteration apparent on its face rests on the party claiming under it. Winkles v. Guenther, 98 Ga. 472, 25 S. E. 527. Where a contract prepared by the use of a typewriter and made in du- plicate appears to have been changed after the first impression is made, the presumption is that such change was made before execu- tion and delivery. Barber v. Stromberg-Carlson Teleph Mfg. Co. 81 Neb. 517, 18 L.R.A. (N.S.) 680, 129 Am. St. Eep. 703, 116 N. W. 157. For a discussion of the question of presumption as to altera- tion of typewritten instrument made in duplicate, see note to this case in 18 L.E.A.(N.S.) 680. III. That the burden is on the party oflfering it to explain. Jackson ex dem. Gibbs v. Osborn, 2 Wend. 555, 20. Dec. 649 (reversing for er- ror in charging the contrary) ; Evans v. Deming, 20 N. Y. Week. Dig. 71; O'Donnell v. Harmon, 3 Daly, 424; Benjamin's Chalmers, Bills & Notes, chap. 259, art. 250 (so laid down as to one suing on altered instrument) ; McHale v. McDonnell, 175 Pa. 632, 34 Atl. 966 (assignment) ; Nesbitt v. Turner, 155 Pa. 429, 26 Atl. 750 (bond) ; Harris v. Bank of Jacksonville, 22 Fla. 501, 1 Am. St. Eep. ALTERATIONS. 199 201, 1 So. 140 (bill of exchange) ; Gowdey v. Eobblns, 3 App. Div. 353, 38 N. Y. Supp. 280 (promissory note); Winters v. Mowrer, 1 Pa. Super. Ct. 47 (promissory note); Slater v. Moore, 86 Va. 26, 9 S. E. 419 (check); Elgin v. Hall, 82 Va. 680 (receipt); Sneed v. Sabinal Mjn. & Mill. Co. 20 C. C. A. 230, 34 U. S. App. 688, 73 Fed. 925 (promissory note) ; Grand Lodge, A. O. U. W. v. Young, 123 111. App. 628. But the burden of explaining an alteration does not rest on the bona fide purchaser of bonds, in an action brought to cancel the bonds upon that ground, where they were not necessarily invalidated by the alteration, treating it as material. Solon v. Williamsburgh Sav. Bank, 114 N. Y. 123, 21 N. E. 168. This rule is usually adopted where the alteration is of a suspicious char- acter, such as one in different handwriting and different ink. Glover V. Gtentry, 104 Ala. 222, 16 So. 38 (promissory note) ; Wilde v. Anns- by, 6 Gush. 314 (guaranty) ; Peugh v. Mitchell, 3 App. D. C. 321 (deed) ; Orlando v. Gooding, 34 Fla. 244, 15 So. 770 (bond). It will be noticed that in many of the cases cited in support of this rule a negotiable instrument was the subject of the alteration, and an attempt has been made to distinguish these cases on that ground. Nagle's Estate, 134 Pa. 31, 19 Am. St. Eep. 669, 19 Atl. 434; Simp- son V. Stackhouse, 9 Pa. 186, 49 Am. Dec. 554. But this distinction has been disregarded by many courts. Wilson v. Hayes, 40 Minn. 531, 4 L.E.A. 196, 12 Am. St. Kep. 754, 42 N. W. 467; Franklin v. Baker, 48 Ohio St. 296, 29 Am. St. Rep. 547, 27 N. E. 550. And see cases cited in support of I. and II. supra. The proponent of a will has the burden of proving that alterations therein were made before execution. Re Lawson, 25 N. S. 454; Re Carver, 3 Misc. 567, 23 N. Y. Supp. 753; Re Philp, 46 N. Y. S. R. 356, 19 N. Y. Supp. 13. But interlineations in a will, fair upon their face, will be presumed to have been made before execution (Re Wood, 32 N. Y. S. E. 286, 11 N. Y. Supp. 157), especially where the interlineations were noted at the bottom of the instrument before the attestation clause. Crossmaji v. Grossman, 95 N. Y. 145. And interlineations or erasures in a will in the handwriting of testa- trix will be presumed to have been made by her in the preparation of the will and prior to its execution, where she was her ovni scrivener and custodian of the will. Re Potter, 33 N. Y. S. E. 936, 12 N. Y. Supp. 105. For other cases as to burden of explaining erasures or alterations ap- pearing on face of will, see note in 17 L.R.A. (N.S. ) 184. IV. That, if the alteration is not suspicious, the burden is on the objector. Insurance Co. of N. A. v. Brim, 111 Ind. 281, 12 N. E. 315; Brand v. Johnrowe, 60 Mich. 210, 26 N. W. 883; Wilson v. Hotchkiss, 81 Mich. 172, 45 N. W. 838; Gettysburg Nat. Bank v. Gage, 4 Pa. Super. Ct. 200 BEIEF ON FACTS. 50; Parker's Estate, 6 Pa. Dist. E. 519. This rule is criticised in Wilson V. Hayes, 40 Minn. 531, 4 L.E.A. 196, 12 Am. St. Eep. 754, 42 N. W. 467, in which the court says that such a rule amounts to nothing more than saying that in some cases the intrinsic evidence furnished by an inspection of the instrument itself "may tend to prove that the alteration was made after delivery, and therefore tftrow the preponderance on that side, unless the holder of the instrument pro- duces extrinsic rebutting evidence. Thus construed we would find no special fault with the rule. But it is incorrect to call this a, presumption of law; it is simply an inference of fact drawn from evidence in the case." The conflict of authority is said to be more apparent than real in Cox v. Palmer, 1 McCrary, 431, 3 Fed. 16, in which tbe court says that one rule governs in all cases. "If the interlineation is in itself sus- picious, as, if it appears to be contrary to the probable meaning of the instrument as it stood before the insertion of the interlined words; or if it is in a, handwriting different from the body of the instrument, or appears to have been written with different ink, — in all such cases, if the court considers the interlineation suspicious on its face, the presumption will be that it was an unauthorized altera- tion after execution. On the other hand, if the interlineation ap- pears in the same handwriting with the original instrument, and bears no evidence on its face of having been made subsequent to the execution of the instrument, and especially if it only makes clear what was the evident intention of the parties, the law will presume that it was made in good fa,ith and before execution." 3. Effect of alteration on competency as evidence. An instrument offered in evidence is not to be absolutely excluded merely because of a material alteration, even if ap- pearing on its face.^ iPringle v. Chambers, 1 Abb. Pr. 58 (disapproving the noted ruling in Warren's "Ten Thousand a Year") ; Maybee v. Sniffen, 2 E. D. Smith, 1 (well-considered dictum by WoodruflF, J., on a, review of the cases. And the decision was aiErmed in 16 N. Y. 560, on the ground, so far as this point is concerned, that there was no proof that the al- teration was made after execution). The objection that legislative journals offered in evidence have been altered and amended without authority goes to their weight as evidence, and not to their admis- sibility, where the alterations and amendments are not apparent from an inspection. State ex rel. Morris v. Mason, 43 La. Ann. 590, 9 So. 776. But election ballots which have been so exposed that they may have been tampered with, and which have not been so guarded as to contravene all suspicion of substitution or change, lose their ALTEEATIONS. 201 presumptive purity, and are not to be relied on in an election con- test. Powell V. Holman, 50 Ark. 85, 6 S. W. 505; Fenton v. Scott, 17 Or. 189, 11 Am. St. Eep. 801, 20 Pac. 95. In Cass County Bank v. Morrison, 17 Neb. 341, 52 Am. Eep. 417, 22 N. W. 782, the court said that an instrument on the face of which a material alteration is apparent generally may be given in evidence, and may go to the jury or trier of fact, leaving the parties to such explanatory evidence of the alteration as they may choose to offer. To the same effect is Gutherless v. Ripley, 98 Iowa, 290, 67 N. W. 109. So, a bill of lading is admissible in evidence, although erasures are apparent on its face, where there is sufficient explanatory evidence to enable the jury to determine whether or not the alterations were made after the bill was issued. Capehart v. ' Granite Mills, 97 Ala. 353, 12 So. 44. And a written lease in which material insertions were made after execution is admissible in evidence where it has been shown that the parties recognized the instrument as valid after its alteration. Janney, S. & Co. v. Goehringer, 52 Minn. 428, 54 N. W. 481. See also § 7, this title, as to necessity of explanation be- fore admitting in evidence. As to effect of alteration in books of account on their admissibility in evidence, see note in 52 L.R.A. 574. 4. What is material. Where the alteration is set up as a bar against enforcing the instrument the question is whether, if effective, it could in any event change the legal liability of the party or work to his prejudice.' Where the alteration is objected to merely as requiring ex- planation before receiving the instrument in evidence, the ques- tion is whether it is material to the purpose for which the in- strument is offered.* The question of materiality is one of law, and solely for the court.* 1 Booth V. Powers, 56 N. Y. 22, reversing Flint v. Craig, 59 Barb. 319. Any extended discussion as to what constitutes a material alteration of a written instrument is outside the scope of a work of this char- acter. Upon this question generally, see notes to Wilson v. Hayes, 4 L.E.A. 196, and Sanders v. Bagwell, 7 L.R.A. 743. As to altera- tion of note as affecting bona fide holders, see Citizens' Nat. Bank v. Williams, 35 L.E.A. 464, with note. 8 For illustration, see Hay v. Douglas, 8 Abb. Pr. N. S. 217, 2 Sweeney, 49 (receiving deed as corroborative of testimony that a note was given on a purchase, notwithstanding interlineation in description of prem- ises). 202 BEIEF ON FACTS. The effect of interlineations apparent on the face of a deed ordinarily de- pends on extrinsic evidence, and cannot be determined on a motion to exclude the deed when oflFered as an instrument of evidence. Ward V. Cheney, 117 Ala. 238, 22 So. 996. 3 Steele v. Spencer, 1 Pet. 552, 7 L. ed. 259; Bell v. Bruen, 1 How. 169, 11 L. ed. 89; Burnham v. Ayer, 35 N. H. 354; Keen v. Monroe, 75 Va. 427; Winkles v. Guenther, 98 Ga. 472, 25 S. E. 527. 5. Inspection. The jury may be satisfied from an inspection o± the paper itself that the alteration was before signing.^ 1 Hills V. Barnes, 11 N. H. 395, Citing Goock v. Bryant, 13 Me. 386, 390 ; Smith V. United States, 2 Wall. 219, 232, 17 L. ed. 788, 791 {dic- tum). Rogers v. Vosburgh, 87 N. Y. 228, only decides (upon this point) that, where a material alteration after execution is alleged as a defense, the court cannot, on mere inspection of the paper, without allowing intrinsic evidence, decide that it was made before execution. The jury may determine from examination whether leaves which have been detached and refastened in a book belong thereto, without the aid of expert testimony. Passmore v. Passmore, 60 Mich. 463, 27 N. W. 601. 6. Signature and body. Proof of signature and delivery is prima facie evidence that the body of the vpriting of which it appears to form a part is genuine if uncontradicted by the party, he being present.^ 1 Com. V. Coe, 115 Mass. 504. And see Simpson v. Davis, 119 Mass. 269, 20 Am. Rep. 324. The proof or admission of the signature of the maker is prima facie evi- dence that the instrument written over it is his act, and this will stand aa binding proof, unless the maker can rebut it by evidence that an alteration was made after delivery. Wilson v. Hayes, 40 Minn. 531, 4 L.E.A. 196, 12 Am. St. Rep. 754, 42 N. W. 467; Davis v. Jenney, 1 Met. 221. See also § 7, this title. 7. Effect of call for explanation. If objection be made that the altered instrument is not suffi- cient to go to the jury, and the judge is satisfied, both that the alteration is material to the purpose for which the instrument is offered, and that it is sufficiently suspicious to require ex- planation, before submitting the instrument to the jury, he ALTERATIONS. 20S may receive it subject to explanation, or on condition that counsel will give explanation.^ 1 Smith V. United States, 2 Wall. 219, 17 L. ed. 788. Whether the instru- ment or the explanation shall be first received is discretionary. Smith V. McGowan, 3 Barb. 404. And the error, if any, in admitting over objection an instrument containing an unexplained alteration is cured by the subsequent testimony of a witness who has had the custody of the instrument since its execution, that he knows it has never been altered since he received it. Nickum v. Gaston, 28 Or. 322, 42 Pac. 130. Immaterial alterations need not be explained before introducing the in- strument in evidence. Virginia & T. Coal & I. Co. v. Fields Bros. 94 Va. 102, 26 S. E. 426. An interlineation in a deed appearing to be in the same handwriting as its body, and made with the same ink And pen, and not unfavorably affecting the person against whom the deed is offered, does not require explanation to warrant its intro- duction in evidence. Zimmerman v. Camp, 155 Pa. 152, 25 Atl. 1086. And the erasure of printed words in a tax deed, indicative of the date of sale, and the interlineation of words in the same handwriting as the body of the deed, reciting an adjourned sale held at a later date, are not alterations requiring explanation previous to the admis- sion of the deed. Lee v. Newland, 164 Pa. 360, 30 Atl. 258. The erasure of the name of a surety from the bond given by an assignee for the benefit of creditors is not such a suspicious circumstance as must be explained before the bond can be admitted in evidence. Rol- lins V. Humphrey, 98 Wis. 66, 73 N. W. 331. Nor is a note rendered so suspicious as to require explanation before introducing It in evi- dence because the date line bears evidence of erasure, and some of the figures in the margin and the words in the body of the note indicating the amount are either blurred or written over erasures, where the amount may be ascertained by combining such of the words and figures as are unchanged, and the paper used was so poor that the ink may have spread. Stillwell v. Patton, 108 Mo. 352, 18 S. W. 1075. But the presumption is so strong that the true date of an indorsement upon a note which was first written with a leadpencil and afterwards partially erased and rewritten with pen and ink so as to show an apparent indorsement before maturity, an issue in the case being that the note was indorsed after maturity, is that of the lead pencil writing, as to require explanation before admitting it in evidence. Johnson v. First Nat. Bank, 28 Neb. 792, 45 N. W. 161. And an administrator's deed so altered as to convey entirely different land from that described in the probate record and proceedings of sale is inadmissible in evidence without explanation of the alterations. Col- lins V. Ball, 82 Tex. 259, 27 Am. St. Eep. 877, 17 S. W. 614. So, a book of entries which is manifestly erased and altered in a material 204 BRIEF 0]Sr FACTS. part is inadmissible in evidence until the alteration is explained (State V. Collins, 1 Marv. (Del.) 536, 41 Atl. 144), and its admission ■without such explanation is reversible error. Churchman v. Smith, 6 Whart. 146, 36 Am. Dec. 211, with note. See, however, Yakima Nat. Bank v. Knipe, 6 Wash. 348, 33 Pac. 834, in which it was held that an alteration in a written instrument, even though apparent on its face, need not be explained to render it admissible in evidence. To the same effect is Hawxhurst v. Hennion, 30 K. Y. S. R. 917, 9 N. Y. Supp. 542. Proof of execution will sometimes dispense with any preliminary explana- tion, leaving the question to be determined after the instrument is in evidence. Conkling v. Olmstead, 63 111. App. 649 ; Gwin v. Anderson, 91 Ga. 827, 18 S. E. 43. Even where the alterations were material and apparent on the face of the instrument. Cosgrove v. Fanebust, 10 S. D. 213, 72 N. W. 469; Fairhaven v. Cowgill, 8 Wash. 686, 36 •Pac. 1093. See also § 6, this title. No further explanation of an alteration apparent on the face of a note is necessary to warrant its admission in evidence, than the testimony of the payee that such alteration was made previous to its receipt by him on the day of its date, from one of the joint makers. Stough v. Ogden, 49 Neb. 291, 68 N. W. 516. So, under a, statute requiring a party producing a, writing, which appears to have been altered after its execution in a material part, to account for the appearance and alteration before it can be admitted in evidence, it is sufficient to show that there has been no alteration made since it came into his hands. Mulkey v. Long, 5 Idaho, 213, 47 Pac. 949. 8. Effect of failure to explain. If required explanation is not forthcoming, the jiidge may, if the suspicion be so clear as not to leave a question for the jury, exclude the document, or strike it out if already con- ditionally received,^ and, if the document be essential to the cause of action or defense, direct a nonsuit or verdict.* 1 Sweitzer v. Allen Bkg. Co. 76 Mo. App. 1 (court sitting as jury). 2 Tillou V. Clinton & E. Mut. Ins. Co. 7 Barb. 564 ; s. P., Evans v. Dem- ing, 20 N. Y. Week. Dig. 71. 9. Effect of attempted explanation. If explanation is given such that a verdict could be sustained on the instrument as explained,^ the instrument with all the evidence as to the alteration will go to the jury for their deter- mination of the question of alteration.* 1 It is for the presiding judge to determine by an inspection of the in- ALTERATIONS. 205 strument whether the supposed interlineations are apparent on its face; and if apparent whether they are not so accounted for or ex- plained as to require the document to go to the jury as an instru- ment of evidence. Ward v. Cheney, 117 Ala. 238, 22 So. 996. The burden resting upon plaintiff in an action on a note to explain a ma- terial alteration thereof is sufficiently met by proof that it was in the same condition at the time of its execution. Winters v. Mowrer, 1 Pa. Super. Ct. 47. If satisfactory explanation is not made, the proper conclusion is a conviction of fact that the alteration was made after the execution of the instrument. Catlin Coal Co. v. Lloyd, 180 111. 398, 72 Am. St. Rep. 216, 54 N. E. 214. But evidence that the words "and homestead" were interlined in an aclcnowledgment of a mort- gage after its execution must be quite convincing to invalidate the mortgage in view of the fact that the notary must have known that the addition of such words would constitute a heinous crime. Rosen- berg V. Jett, 72 Fed. 90. 2 The conflict in the cases, when analyzed, turns chiefly on the question what instructions should be given the jury on the burden of proof. 10. Effect of alteration on validity. To invoke the rules that an alteration by the holder, in a material part, precludes him from recovering on it, and that fraudulent alteration by him in such a part precludes him from recovering even on the original consideration,^ it must be affirmatively shown that the alteration was made by him.^ 1 Meyer v. Huneka, 55 N. Y. 412, and eases cited, reversing 65 Barb. 304. See also Walton Plow Co. v. Campbell, 16 L.R.A. 468, and note, (35 Neb. 173, 52 N. W. 883). And see cases collected in note to Draper T. Wood, 17 Am. Eep. 97. 2 Van Brunt v. Van Brunt, 3 Edw. Ch. 14. To defeat all liability on a note because of material alteration therein it must be alleged and proved that the alterations were made by a, person claiming a benefit under the instrument and with intent to defraud. Gwin v. Anderson, 91 Ga. 827, 18 S. E. 43, construing a Code provision that a material al- teration of a contract by a party claiming a benefit under it with fraud- ulent intent avoids the whole contract, but if the alteration is uninten- tional, or made by mistake or in an immaterial manner and without' intent to defraud, the court will enforce it if the original contract can be discovered and is capable of execution. Contra: Bowman v. Mitchell, 79 Ind. 84, which holds that a material alteration in a note, made after execution, will be presumed, unless the contrary is shown, to have been made by the party claiming under it, or by one under whom he claims, and will render unenforceable a mortgage to secure which the note was executed. To the same effect is Warder, B. & Q. Co. v. 206 BEIEF OSr PACTS. Willyard, 46 Minn. 531, 24 Am. St. Eep. 250, 49 N. W. 300, in which a judgment on the original consideration for a note was reversed for the failure to explain a material alteration therein shown to have been made after the instrument passed from the maker's hands into plain- tiff's actual or constructive possession. And an alteration of promis- sory notes after execution, by substituting for the printed word ■'order'' the word "bearer,'' will be presumed to have been made with a fraudulent purpose either by the payee or the holder. Shroeder v. Web- ster, 88 Iowa, 627, 55 N. W. 569. And the burden of showing that a, material alteration in a check, made after the payee's indorsement and without his consent, was made by a stranger to the instrument, is upon the party seeking to enforce it. National Ulster County Bank V. Madden, 114 N. Y. 280, 11 Am. St. Eep. 633, 21 N. E. 408. Alteration in an instrument which before alteration had already effected a transmutation of title or possession does not defeat it, for alteration cannot reconvey. Lewis v. Payn, 8 Cow. 71, 18 Am. Dec. 427; Smith V. McGown, 3 Barb. 404. 11. Competency of witness to explain. Any witness having knowledge may testify to tte time of the making or existence of an alteration,^ even though the instru- ment be one which can only be proved by a subscribing witness.* 1 An insured may, in an action on a policy, show that words written into his application were so written after it left his hands and without his knowledge or consent. MoMaster v. New York L. Ins. Co. 90 Fed. 40. So, a party may prove that a letter from him, put in evidence by the other party, was mutilated, and that something material had been cut oflf. Robinson v. Cutter, 163 Mass. 377, 40 N. E. 112. And on the trial of an indictment for altering a ballot, » witness who saw the al- teration made may testify to the fact, although the ballot has been de- stroyed as required by statute. Com. v. McGurty, 145 Mass. 257, 14 N. E. 98. Where a note has been admitted in evidence without any explanatory testimony as to material alterations, it is reversible error to exclude evidence that such alterations were made after its execu- tion, and were unauthorized. Courcamp v. Weber, 39 Neb. 533, 58 N. W. 187. 2 Penny ex dem. Penny v. Corwithe, 18 Johns. 499. 12. Description. A witness may be questioned as to the facts apparent on the condition of a writing presented to him, as, for instance, whether its body and signature were written with the same ink ; whether there appeared to be an erasure; and whether either edge was ALTEEATIONS. 207 cut, or an ordinary foolscap edge; ^ and an expert may be in- terrogated as to whether an erasure was made before or after the body of the instrument was written/ or whether interlinea- tions are in the same handwriting as the signature.' 1 Dubois V. Baker, 30 N. Y. 355, affirming 40 Barb. 556. But, on tlie question of the forgery of a lost deed of which a copy is in evi- dence, the clerk who recorded it cannot be permitted to testify that it had the appearance on its face of being genuine, as there appeared upon it no erasures or interlineations. Holland v. Carter, 79 Ga. 139, 3 S. E. 690. 2 Dubois V. Baker, 30 N. Y. 355, affirming 40 Barb. 556. But compare Sackett v. Spencer, 29 Barb. 180; Cheney v. Dunlap, 20 Neb. 265, 57 Am. Rep. 828, 29 N. W. 925; Phoenix F. Ins. Co. v. Philip, 13 Wend. 81; and § 8, Age, as to age of writing. A witness cannot be asked whether there has been any use of chemicals upon a note, f-or the purpose of proving the fact of alteration, where the note itself is not offered in evidence, and there is no suggestion that it bears any evidence of an erasure or alteration, — especially since the note itself would be the best evidence of such an erasure. Levris V. Hayden, 3 Ariz. 277, 32 Pac. 263. S Graham v. Spang, 1 Monaghan (Pa.) 167, 16 Atl. 91. 13. Explaining^, as immaterial. a. In general. — An unnoted erasure in a deed may be shown to be immaterial by oral evidence of the subject-matter referred to.^ 1 Hanrick v. Patrick, 119 U. S. 156, 172, 30 L. ed. 396, 405, 7 Sup. Ct. Rep. 147 (so holding of an alteration changing the name of the grantee from Elizabeth to Eliza, explained by proof that both names indicate the same person ) . b. As made by third person. — A material alteration in the instrument under which a party claims may be explained by showing that it was made without his privity while the instru- ment was not in his possession, and by another party or a stranger ; and if the nature and extent of the alteration and the original terms of the contract can be clearly ascertained the al- teration will not affect the party so claiming under the instru- 208 BEIEF ON S-ACTS. ment.* 1 Martin v. Tradesmen's Ins. Co. 101 N. Y. 498, 5 N. E. 338. c. As made hy consent. — An unnoted alteration, even in a sealed instrument, tnaj be explained by oral evidence that all parties consented to its being made.'' 1 Speake v. United States, 9 Cranch, 28, 3 L. ed. 645 (erasures of one signature in bond, and substitution of anotlier ) . It may be other- wise of an alteration in a matter required by statute. The testimony of the grantor that she read and examined the deed when she acknowledged it for probate is some evidence that she knew of the change made therein in the interval between the signing and ac- knowledgment. Howell V. Cloman, 117 N. C. 77, 23 S. E. 95. Evidence that the original maker of a note promised to pay it after it had been materially altered by having two other persons sign it is inad- missible in evidence against him, although not against the additional signers. Browning v. Gosnell, 91 Iowa, 448, 59 N. W. 340. The de- fendant in an action by a bank upon a note a note altered by its cashier may show by the bank's books that the note was carried thereon at the amount to wliich it had been altered, as evidence tending to show knowledge of, and ratification by, the bank of the alteration. Wyckoff V. Johnson, 2 S. D. 91, 48 N. W. 837. The implied admission of the execution of a note as alleged in the complaint, where usury is the only defense set up on the first trial, is sufficient on the second trial, when defendant first claims that an insertion of certain words in the instrument, as pleaded, was made without his consent, which is flatly contradicted by plaintiff, to disprove such defense. McNail v. Welch, 125 111. 623, 18 N. E. 737. 14. Extrinsic evidence to supply obliteration. An instrument is not to be excluded because of an alteration or mutilation canceling a material part, if there is no indication of fraud or intent to annul the instrument, and the lost words are supplied by extrinsic evidence.^ iPolk V. Wendall, 9 Cranch, 87, 97, 3 L. ed. 665, 668 (Here the sum fixed as the consideration of a grant had been obliterated by tearing it out. Marshall, Ch. J., said: "Had the whole grant been lost, a copy might have been given in evidence; and it would be strange if the original should be excluded because u. word which could not be mistaken, and wuich, indeed, is not essential to the validity of the grant, has become illegible"). ALTEEATIONS. 209 But a memorandum book mutilated by tearing out and destroying some of the entries relating to the suit after its commencement is inadmis- sible in evidence. Johnson v. Fry, 88 Va. 695, 12 S. E. 973, 14 S. E. 183. Parol evidence. Extrinsic evidence is admissible to explain or account for interlineations in a v^ritten instrument. Cox v. Mignery & Co. 126' Mo. App. 669, 105 S. W. 675. 15. Abstract or memorandum corroborating the testimony. An abstract or memoranduni of the contents of the original instrument, with proof that it was correctly made, is competent, in connection with the testimony of the witness who made it, to show that a deviation now apparent on the face of the orig- inal is a subsequent alteration.^ 1 National Ulster County Bank v. Madden, 41 Hun, 113. The duplicate of a. contract is admissible to show that material erasures and interlineations in the original were made after execution, al- though the answer admitted the contract as pleaded. Young v. Cohen, 42 S. C. 328, 20 S. E. 62. And, upon the question whether or not notes given for the purchase price of goods were altered after their execution, the written contract containing the terms of sale is ad- missible in evidence to show how far the notes are in conformity to those terms. Stein v. Brunswick-Balke-Collender Co. 69 Miss. 277, 13 So. 731. 16. Official document; ancient instrument. The rule as to requiring explanation from the party offering an altered document does not apply to an oiEcial record of a sworn ofEcer produced from the proper custody other than that of the party offering it,^ nor to a deed purporting to be an ancient document, which comes from the proper source.^ 1 People ex rel. Stone v. Minck, 21 N. Y. 539; Devoy v. New York, 35 Barb. 264, 22 How. Pr. 226. 2 A deed over fifty years old, which has been recorded for over forty years, and comes from the proper source, is admissible in evidence as an ancient instrument, notwithstanding the erasure of the name of the original grantee and the insertion of another grantee. McCelvey v. Cryer, 8 Tex. Civ. App. 437, 28 S. W. 691. 17. Certified copy. Alterations in a certified copy or an exemplification are not Abb. Facts — 14. 210 BEIEF OIT FACTS. alone ground for excluding it, if they are marked and verified as such by the initials of the authenticating clerk of the court. 1 Lazier v. Westcott, 26 N. Y. 146, 82 Am. Dec. 404. AMBIGUITY. 1. Symbol. 2. Absence of dollar mark. 3. Illegibility. 4. Blank. 5. Patent and latent. 6. Surrounding circumatances. 7. Usage of the business. 8. Practical construction. 9. Creating by extrinsic evidence. 10. Technical meaning. 11. Identity. 12. Insurance contracts. See also Abbeeviations ; Admissions; BotrNDABiES; Contract; Intend, Opinion; Threat; Usage. 1. Symbol. Oral evidence is competent to explain the meaning of a symbol used in a written contract, as in a stipulation to pay "at the rate of 100 dolls, per ton." ^ 1 Taylor v. Beavers, 4 E. D. Smith, 215 ( admitting evidence to show that $1.10 was in fact agreed on). 2. Absence of dollar mark. The absence of a dollar mark, and the fact that there is no other indication of the denomination of money indicated by a column of figures, than the column line or period usually AMBIGUITY. 211 separating dollars and cents, does not impair the admissibility or effect of the account.^ 1 State V. Eing, 29 Minn. 78, 11 N. W. 233. Such omission does not render invalid a, warrant for the collection of taxes. American Tool Co. V. Smith, 14 Abb. N. C. 378, and cases cited (affirmed, it seems, with- out opinion in 96 N. Y. 670). The primary meaning of figures standing in the column set apart for the valuation of assessed prop- erty in a tax roll will be held to be dollars, although no dollar or other mark is used in connection therewith. Conklin v. El Paso, — Tex. Civ. App. — , 44 S. W. 879. And the usual subdivisional account-book lines between the decimal parts of the dollar and the units and tens is a sufficient indication of dollars and cents on an assessment roll, although the words "dollars, cents," etc., or their equivalent signs and abbreviations, are omitted from the top of the lines. San Luis Obispo County v. White, 91 Cal. 432, 27 Pac. 756, 24 Pac. 864. Contra: McClellan v. District of Columbia, 7 Mackey, 94, and cases cited. The omission of the dollar sign in a transcript of judgment, from the figures apparently intended to state the amount of the judgment, renders it inadmissible in evidence. Hopper v. Lucas, 86 Ind. 43. 3. Illegibility. Oral evidence is competent to dispel doubts as to what a word or character in an instrument was intended to be.* 1 Arthur v. Roberts, 60 Barb. 580. Parol evidence is admissible to ex- plain what name was intended by obscure and imperfect ballots. Behrensmeyer v. Kreitz, 135 111. 591, 26 N. E. 704. Opinions of experts are competent to determine the identity of a numeral which is obscure and difficult to be deciphered. Kux v. Central Mich- igan Sav. Bank, 93 Mich. 511, 53 N. W. 828. 4. Blank. The omission to fill a blank with a number or other term essential to give meaning to the provision in which it occurs creates a patent ambiguity which cannot be corrected by oral evidence.* iVandevoort v. Dewey, 42 Hun, 68, 71. Compare Camden Iron Works V. Fox, 34 Fed. 200. 5. Patent and latent. Extrinsic evidence is, subject to the exceptions noted in the 212 BEIEF ON FACTS. following sections, inadmissible to cure a patent ambiguity.* But a latent ambiguity being created by extrinsic evidence, such evidence is competent to remove it.^ 1 Johnson v. Johnson, 32 Ala. 637 ; Brandon v. Leddy, 67 Cal. 43, 7 Pac. 33; Grimes v. Harmon, 35 Ind. 198, 9 Am. Rep. 690; Craven t. Butterfleld, 80 Ind. 503; Clarke v. Lancaster, 36 Md. 196, 11 Am. Eep. 486; Storer v. Freeman, 6 Mass. 435, 4 Am. Dec. 155; Comstock V. Van Deusen, 5 Pick. 163; Mithoff v. Byrne, 20 La. Ann. 363; McNair v. Toler, 5 Minn. 435, Gil. 356; Taylor v. Maris, 90 N. C. 619; Brown v. Guice, 46 Miss. 299; Morris v. Hunt, 51 Tex. 609; Nashville L. Ins. Co. v. Mathews, 8 Lea, 499; Brauna v. Stearns, 1 Or. 368; Webster v. Atkinson, 4 N. H. 23; Rood v. School Dist. No. 7, 1 Dougl. (Mich.) 502; McFarland v. Reeve, 5 Del. Ch. 118; Harten v. Loffler, 29 App. D. C. 490. Contra by statute, in Georgia, providing that "parol evidence is admissible to explain all ambiguities both latent and patent." Mohr v. Dillon, 80 Ga. 572, 5 S. E. 770. Mr. Abbott suggested in the first edition that this rule is not applicable except where the writing is required by statute which the patent ambiguity prevents it from satisfying, and that in other cases the existence of -a, patent ambiguity invites extrinsic evidence. The fol- lowing cases were cited by him as illustrations of the rule: Mansfield v. New York C. & H. R. R. Co. 102 N. Y. 205, 6 N. E. 386; Moore v. Meacham, 10 N. Y. 207; Field v. Munson, 47 N. Y. 221. But none of these cases support this proposition, and no such distinction seems elsewhere to have been raised. On the contrary, the rule laid down in the text has been applied to a patent ambiguity in a promissory note. Grifiith v. Furry, 30 111. 251, 83 Am. Dec. 186. And to one arising from the phraseology of an entry on a book of minutes of corporate proceedings. Richmond Trading & Mfg. Co. v. Farquar, 8 Blackf. 89. And to one apparent on the face of a lease for a term less than one year. Castleman v. Du Val, 89 Md. 657, 43 Atl. 821. ZClay V. Field, 138 U. S. 464, 34 L. ed. 1044, 11 Sup. Ct. Rep. 419; Houston v. Bryan, 78 Ga. 181, 6 Am. St. Rep. 252, 1 S. B. 252; Lyman v. Gedney, 114 111. 388, 55 Am. Rep. 871, 29 N. E. 282; McCann v. Preston, 79 Md. 223, 28 Atl. 1102; Hurley v. Brown, 98 Mass. 548, 96 Am. Dec. 671; Harrisburg Lumber Co. v. Washburn, 29 Or. 150, 44 Pac. 390; Coulam v. Doull, 4 Utah, 267, 9 Pac. 568; Hawkins v. Garland, 76 Va. 149, 44 Am. Rep. 158; Roanoke v. Blair, 107 Va. 639, 60 S. E. 75; Moran Bros. Co. v. Pacific Coast Casualty Co. 48 Wash. 592, 94 Pac. 106; Jennings v. Talbert, 77 S. C. 454, 58 S. B. 420. A statute excluding evidence to vary a writing does not exclude evidence to explain an extrinsic ambiguity. Bogk v. Gassert, 149 U. S. 17, 37 L. ed. 631, 13 Sup. Ct. Rep. 738. Extrinsic evidence is competent to apply a contract to its subject-mat- ter, and to remove any uncertainty and ambiguity which arises from AMBIGUITT. 213 such application. Stoops v. Smith, 100 Mass. 63, 1 Am. Eep. 85, 97 Am. Dec. 76; Haskell v. Tukesbury, 92 Me. 551, 69 Am. St. Rep. 529, 43 Atl. 500; Clark v. Crawfordsville Coffin Co. 125 Ind. 277, 25 N. E. 288; Kelly v. Bronson, 26 Minn. 359, 4 N. W. 607; Axford v. Meeks, 59 N. J. L. 502, 36 Atl. 1036; New England Granite Works V. Bailey, 69 Vt. 259, 37 Atl. 1043. So extrinsic evidence is admissible to remove a latent ambiguity in the description of a deed, and to identify the land intended to be conveyed. Robinson v. Allison, 109 Ala. 409, 19 So. 837; Bradish v. Yocum, 130 111. 386, 23 N. E. 114; Marvin v. Elliott, 99 Mo. 616, 12 S. W. 899; Bollinger County v. McDowell, 99 Mo. 632, 13 S. W. 100; Palmer v. Farrell, 129 Pa. 162, 15 Am. St. Rep. 708, 18 Atl. 761; Busby v. Bush, 79 Tex. 656, 15 S. W. 638. And such evidence is admissible to remove an ambiguity in a will created by an inaccurate description. Hawkins v. Garland, 76 Va. 149, 44 Am. Rep. 158; Webster v. Morris, 66 Wis. 368, 57 Am. Rep. 278, 28 N. W. 353. Or one arising from the existence of two or more persons or things, either of which will answer the de- scription given. Bradley v. Rees, 113 111. 327, 55 Am. Rep. 422 (be- quest to "four boys" when there were seven) ; Morgan v. Burrows, 45 Wis. 217, 30 Am. Rep. 717; Gallup v. Wright, 61 How. Pr. 286; Tilton V. American Bible Soc. 60 N. H. 377, 49 Am. Rep. 321. 6. Surrounding circumstances. Whenever the language used is susceptible of more than one interpretation, oral evidence of the surrounding circumstances existing when the contract was entered into, the situation of the parties, and the subject-matter of the instrument, is admis- sible.* IMcGhee v. Alexander, 104 Ala. 116, 16 So. 148; Merrill v. Sypert, 65 Ark. 51, 44 S. W. 462; Lassing v. James, 107 Cal. 348, 40 Pac. 534; Solary v. Webster, 35 Fla. 363, 17 So. 646; Donohue v. Donohue, 54 Kan. 136, 37 Pac. 998; Frick v. Frick, 82 Md. 218, 33 Atl. 462; Kelly V. Bronson, 26 Minn. 359, 4 N. W. 607; Longfellow v. McGregor, 56 Minn. 312, 57 N. W. 926; French v. Carhart, 1 N. Y. 102, and cases cited (applying this rule to the construction of a. deed of lands) ; Hinnemann v. Rosenbaek, 39 N. Y. 98 (holding that a stipulation in a building contract to pay a specified sum, in an order on a firm named, was explainable by oral evidence that the firm were dealers in building materials, and that it was not intended the order should be payable in cash) ; Manchester Paper Co. v. Moore, 104 N. Y. 680, 10 N. E. 861 (holding that the conversations of the parties in enter- ing into the contract, and the characteristics of the business, and their relative needs and modes of action, could be proved, in order to show what the term "ruling market rates" meant, when it had 214 BEIEF ON FACTS. been shown that there were two market rates. But a prior oral agreement could not be shown) ; Field v. Munson, 47 N. Y. 221 ; Agawam Bank v. Strever, 18 N. Y. 502 (oral evidence of attending circumstances admissible to show that a guaranty of "all liabilities incurred" included future liabilities) ; Wanner v. Landis, 137 Pa. 61, 20 Atl. 950; Wildasin v. Bare, 171 Pa. 387, 33 Atl. 365; Pearsall V. Henry, 153 Cal. 314, 95 Pac. 154, 159 ; Blood v. Fargo & S. Elevator Co. 1 S. D. 71, 45 N. W. 200; Gardner v. Watson, 76 Tex. 25, 13 S. W. 39; Davis v. State, 75 Tex. 420, 12 S. W. 957; Kinney v. Hooker, 65 Vt. 333, 36 Am. St. Eep. 864, 26 Atl. 690; Jackson Mill Co. v. Chandos, 82 Wis. 437, 52 N. W. 759; Scott v. Neeves, 77 Wis. 305, 45 N. W. 421; Crook v. First Nat. Bank, 83 Wis. 31, 35 Am. St. Rep. 17, 52 N. W. 1131; Drovers' Nat. Bank v. Albany County Bank, 44 Fed. 183. And a statute excluding evidence to vary a, writing does not exclude evidence of the circumstances under which a written agreement or deed was made or to which it relates. Bogk v. Gassert, 149 U. S. 17, 37 L. ed. 631, 13 Sup. Ct. Eep. 738. By the weight of authority this rule authorizes the admission in evidence of the verbal declarations of the parties which tend to show their understanding of the meaning of the ambiguous expression. B^ Curtis, 64 Conn. 501, 42 Am. St. Rep. 200, 30 Atl. 769; Jenkinson v. Monroe Bros. 61 Mich. 454, 28 N. W. 663; Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198; Manchester Paper Co. v. Moore, 104 N. Y. 680, 10 N. E. 681; La Chicotte v. Richmond R. & Electric Co. 15 App. Div. 380, 44 N. Y. Supp. 75; Lemp v. Armengol, 86 Tex. 690, 26 S. W. 941; Bartels v. Brain, 13 Utah, 162, 44 Pac. 715; Foster v. Dicker- son, 64 Vt. 233, 24 Atl. 253; Ganson v. Madigan, 15 Wis. 148, 82 Am. Dec. 652; Contra: Kretschmer v. Hard, 18 Colo. 223, 32 Pac. 418; McClelland v. James, 33 Iowa, 577; Scraggs v. Hill, 37 W. Va. 706, 17 S. E. 185; Caperton v. Caperton, 36 W. Va. 479, 15 S. E. 257. 7. Usage of the business. To explain ambiguous language in a contract, evidence of the known and ordinary course of the particular business is competent;^ but not evidence of how it was understood by other dealers with the same house, unless the party to the con- tract is shown to have been cognizant of such other transac- tions.^ 1 Lyon V. Lenon, 106 Ind. 567, 7 N. E. 311 ; Brunold v. Glasser, 25 Misc. 285, 53 N. Y. Supp. 1021 ; Hansbrough v. Neal, 94 Va. 722, 27 S. E. 593. Evidence of the custom of watchmakers to use kerosene or benzine in reasonable quantities is admissible upon the question as to what is covered by the ambiguous expression "watchmalcer's materials" in a policy of insurance. Maril v. Connecticut F. Ins. Co. 95 Ga. AMBIGUITY. 215 604, 30 L.R.A. 835, 51 Am. St. Rep. 102, 23 S. W. 463. So evidence of a local custom by which the completed area was measured to de- termine the quantity of stone used is admissible to show what the parties to a contract to furnish stone blocks for use in a sewer meant by the words "square yard," even though such a custom has not been pleaded. Breen v. Moran, 51 Minn. 525, 53 N. W. 755. Evidence of usage is admissible to explain the meaning of ambiguous terms in a dispositive writing. Pitcher v. Bingay, 21 N. S. 31. But usage is only admissible to explain what is doubtful, and not to contradict what is plain. Cummings v. Blanchard, 67 N. H. 268, 68 Am. St. Eep. 664, 36 Atl. 556. See also Contradiction; Usage. And the presumption is that a contract which is ambiguous was made with reference to the known usage or general course of the particular business. Leiter v. Emmons, 20 Ind. App. 22, 50 N. E. 40. SNewhall v. Appleton, 102 N. Y. 133, 6 N. E. 120 (excluding other transac- tions for want of evidence of plaintiff's knowledge) ; Fabbri v. Phoenix Ins. Co. 55 N. Y. 129 (admitting other transactions where the party's knowledge was shown). 8. Practical construction. When the meaning of a contract is amhiguous, extrinsic evi- dence, oral or written, is competent to show the practical con- struction put upon it by the parties by their acts under it.* So of their practical construction of previous similar contracts in the same terms.' 1 French v. Carhart, 1 N. Y. 96, 102, and cases cited (receiving such evi- dence as to what was conveyed or reserved by a deed), Approved in Steinbach v. Stewart, 11 Wall. 566, 20 L. ed. 56 (receiving such evi- dence on the question whether a deed was intended as a grant of a license) ; New York v. Starin, 106 N. Y. 1, 12 N. E. 631, and cases cited; Maloney v. Iroquois Brewing Co. 63 App. Div. 454, 71 N. Y. Supp. 1098; Cosper v. Nesbit, 45 Kan. 457, 25 Pac. 866; Bngel v. Scott & H. Lumber Co. 60 Minn. 39, 61 N. W. 825; Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198; Drovers' Nat. Bank v. Albany County Bank, 44 Fed. 183; Cavazos v. Trevino, 6 Wall. 773, 787, 18 L. ed. 813, 816; Union Bank v. Hyde, 6 Wheat. 572, 5 L. ed. 333. (An in- dorser's stipulation that if his notes should not be protested he would consider himself bound in the same manner as if legally protested, held to be ambiguous, and parol evidence was admissible to show that, by the understanding of both parties, and practical construction by one acquiesced in by the other, it dispensed with demand and notice on paper not strictly subject to "protest.") a Gray v. Gannon, 4 Hun, 57, 6 Thomp. & C. 245. 216 BRIEF ON FACTS. 9. Creating by extrinsic evidence. To create an ambiguity in the use of common and ordinary language in a written contract, so as to let in oral evidence, it is not enough to show circumstances known to one of the parties, but unknown to the other, which might have influenced the former in making the contract; but there must be proof of circumstances known to all of the parties to the agreement, and available to all, in selecting the language employed to ex- press their meaning.* 1 Brady v. Cassidy, 104 N. Y. 147, 10 N. E. 131 (use of words "manufac- tured stock on hand" in a bill of sale, not explainable by showing that a part of the apparent stock had been previously contracted to others ) . Evidence as to the meaning of "single dwelling house" among real- estate men is inadmissible in an action to restrain the violation of a restriction of the use of real property to that purpose, where none of the original or subsequent purchasers of such property were real- estate men. Stone v. Pillsbury, 167 Mass. 332, 45 N. E. 768. 10. Technical meaning. It may be shown by oral evidence that a term has acquired a technical meaning in trade or art, different from its ordinary meaning, for the purpose of showing which meaning was in- tended.* 1 Pollen V. LeEoy, 30 N. Y. 549, Affirming 10 Bosw. 38; Long Bros. v. J. K. Armsby Co. 43 Mo. App. 253; Moore v. Hill, 62 Vt. 424, 19 Atl. 997; St. Paul & M. Trust Co. v. Harrison, 64 Minn. 300, 66 N. W. 980. So by a statute in Montana. Newell v. Nicholson, 17 Mont. 389, 43 Pac. 180. But if a party seeks to show that certain words used in the contract have a different acceptation from their ordinary sense, he must prove it by clear, distinct, and irresistible evidence. De Witt v. Berry, 134 U. S. 306, 33 L. ed. 896, 10 Sup. Ct. Rep. 536. Parol evidence is admissible to show that a term used in an insurance policy has a special and technical meaning according to the custom of an insurance business. Halsey v. Adams, 63 N. J. L. 330, 43 Atl. 708; Fry v. Provident Sav. Life Assur. Soc. — Tenn. — , 38 S. W. 116. So, evidence is admissible to explain the meaning of the term "Harbor of New York" as used in a, contract of marine insurance. Petrie v. Phenix Ins. Co. 132 N. Y. 137, 30 N. E. 380. Evidence as to the meaning of the term "hrass buttons" in trade and commerce is admissible upon the question whether certain buttons are dutiable AMBIGUITY. 217 as such. Erhardt v. Ullman, 2 C. C. A. 319, 1 U. S. App. 257, 51 Fed. 414. And evidence is admissible to show among printers the meaning of the words ''equivalent" and "square," as used in a statute providing for the payment for publication of legal notices at a desig- nated price "per square of ten lines of brevier type or its equivalent." Brown v. Lucas County, 94 Iowa, 70, 62 N. W. 694. And evidence of the custom of surveyors in locating town plots is admissible to determine whether the word "west" in a deed means west according to the United States survey, or according to the true meridian. Reed V. Tacoma Bldg. & Sav. Asso. 2 Wash. 198, 26 Am. St. Eep. 851, 26 Pac. 252. Compare Moran v. Prather, 23 Wall. 492, 23 L. ed. 121 (holding that the phrase "indebtedness due us by said steamboat," and the like, in the release and guaranty, could not be explained by oral evidence as meaning only debts enforceable in rem). Experts may testify as to the meaning of the term "surfacing" in a rail- road construction, and whether it includes "old grading." Henderson- Boyd Lumber Co. v. Cook, 149 Ala. 226, 42 So. 838. The plaintiff, in an action on a contract has the burden to show that the term "six story building" used in the contract had a special mean- ing which the parties either knew or should have known. Abrams v. Bloch, 101 N. Y. Supp. 109. 11. Identity. Land described in a deed,* or a contract for the conveyance of property,* or a mortgage,' or a lease,* may be identified by parol evidence. So parol evidence is admissible to identify land devised by a will,* and extrinsic evidence is admissible to identify the plaintiffs in an action on a foreign judgment in favor of a partnership.* And where an instrument specifies a person as agent, but it does not appear for whom he is agent, oral evidence is admissible to explain the agency and identify the principal.'' But parol evidence is not admissible to identify a document referred to in a will, where the will attempts to incorporate the contents of the document without identifying it in a clear, explicit, and unambiguous manner.' IStaub f. Hampton, 117 Tenn. 706, 101 S. W. 776; Reed v. Munn, 80 C. C. A. 215, 147 Fed. 737. SMoayon v. Moayon, 114 Ky. 855, 60 L.R.A. 415, 102 Am. St. Rep. 303, 72 S. W. 33. S Walden v. Walden, 128 Ga. 126, 57 S. E. 323. 4Bulkley v. Devine, 127 111. 406, 3 L.E.A. 330, 20 N. E. 16. 218 BRIEF ON FACTS. BEckford v. Eckford, 91 Iowa, 54, 26 L.R.A. 370, 58 N. W. 1093. But see Bingel v. Volz, 142 111. 214, 16 L.R.A. 321, 34 Am. St. Rep. 64, 31 N. E. 13. 6 Fisher v. Fielding, 67 Conn. 91, 32 L.R.A. 236, 52 Am. St. Rep. 270, 34 Atl. 714. 7 Hanna v. Espalla, 148 Ala. 313, 42 So. 443. 8 Bryan's Appeal, 77 Conn. 240, 68 L.R.A. 353, 107 Am. St. Rep. 34, 58 Atl. 748, 1 Ann. Gas. 393. 12. Insurance contracts. Parol evidence is admissible in the case of insurance con- tracts, as well as in the case of other written contracts, to ex- plain their terms whenever ambiguous.* So, parol evidence was held admissible to show that the attention of the insurer was called to the manner in which a smokehouse was used and the smoked meat stored, and that smoked meats were what were to be insured in connection with the smokehouse, upon the ques- tion of what was included under the word "contents." ^ And upon the question of intention with which the words "total and permanent loss of the sight of both eyes" were used, knowl- edge of the agent that the insured had only one eye when the policy was issued is admissible to show that the words were equivalent to "loss of eyesight."^ And parol evidence of the company's knowledge that the insured was a railroad con- tractor is admissible on the question of the interpretation of the words used in the policy, "contractor, office, and travel- ing.»* 1 Kentucky Vermillion Min. & Concentrating Co. v. Norwich Union F. Ins. Soc. 77 C. C. A. 121, 146 Fed. 695; James River Ins. Co. v. Mer- ritt, 47 Ala. 387; Eggleston v. Council Bluffs Ins. Co. 65 Iowa, 308, 21 N. W. 652; Milwaukee Mechanics' Ins. Co. v. Brown, 3 Kan. App. 225, 44 Pac. 35; Frosts' Detroit Lumber & Wood-Ware Works v. Millers' & Mfrs.' Mut. Ins. Co. 37 Minn. 300, 5 Am. St. Rep. 846, 34 N. W. 35 ; Singleton v. St. Louis Mut. Ins. Co. 66 Mo. 63, 27 Am. Rep. 321; Modern Woodmen Acci. Asso. v. Kline, 50 Neb. 345, 69 N. W. 943; Pitney v. Glens Falls Ins. Co. 61 Barb. 335, Affirmed in 65 N. Y. 6; Bidwell v. North Western Ins. Co. 24 N. Y. 302; Smith v. Farmers' & M. Mut. F. Ins. Co. 89 Pa. 287; Graham v. American F. Ins. Co. 48 S. C. 195, 59 Am. St. Rep. 707, 26 S. E. 323; Carrigan v. Lycoming F. Ins. Co. 53 Vt. 418, 38 Am. Rep. 687; Washington Mut. F. Ins. Co. T. St. Mary's Seminary, 52 Mo. 480. AMOUNT. 219 2 Graybill v. Penn Twp. Mut. F. Ins. Aaso. 170 Pa. 75, 29 L.E.A. 55, 60 Am. St. Rep. 747, 32 Atl. 632. S Humphreys v. National Ben. Asso. 139 Pa. 264, 11 L.E.A. 564, 20 Atl. 1047. «Ward V. Preferred Acci. Ins. Co. 80 Vt 321, 67 Atl. 821. AMOUNT. 1. Voluminous books, records, papers, etc. 2. Alternative computations by experts. See also Quantity. 1. Voluminous books, records, papers, etc. Whenever books, records, papers, accounts, and the like, are so voluminous that the examination of them would consume much time, and it would be difficult for the jury to understand them or make the necessary computations, the court may, in its discretion, permit a qualified witness, who has examined them with reference to the ascertainment of the correct amount or balance, to testify to the result of his examination;* or it may receive in evidence statements or schedules verified by his testimony showing the details and result of his computation.^ 1 Chicago, St. L. & P. E. Co. v. Wolcott, 141 Ind. 267, 50 Am. St. Rep. 320, 39 N. E. 451; McCann v. Gould, 71 Conn. 629, 42 Atl. 1002; State V. Cadwell, 79 Iowa, 432, 44 N. W. 700 (amount of assets to determine financial condition of bank as to solvency) ; Wolford v. Farnham, 47 Minn. 95, 49 N. W. 528; State v. Findley, 101 Mo. 217, 14 S. W. 185, 8 Am. Crim. Rep. 191; Bartley ». State, 53 Neb. 310, 73 N. W. 744, and cases cited. 220 BRIEF ON FACTS. a Culver r. Marks, 122 Ind. 554, 7 L.R.A. 489, 17 Am. St. Rep. 377, 23 N. E. 1086; San Pedro Lumber Co. v. Reynolds, 121 Cal. 74, 53 Pae. 410. But the extended and complicated character of the books, papers, accounts, etc., must be shown by the pleadings, according to Equitable Accl. Ins. Co. V. Stout, 135 Ind. 444, 33 N. E. 623. 2. Alternative computations by experts. To assist the jury or court in calculating the amount accord- ing to several theories of liability or hypotheses, it is proper to receive statements or plans of adjustment made by experts according to each of the several hypotheses or theories, not as evidence of the facts stated, but leaving the jury free to accept either or reject all.^ IHome Ins. Co. v. Baltimore Warehouse Co. 93 U. S. 527, 547, 23 L. ed. 868, 870. Summary. A witness should not be permitted to state the total amount of various items of set-offs, but the items should be separately proved. Holmes v. McKennan, 120 111. App. 320. APPLICATION OF PAYMENTS. 1. Burden of proof to show direction; presumption. 2. Oral evidence. ' 3. Direct testimony. 4. Direct and circumstantial evidence. See also Payment, 1. Burden of proof to show direction; presumption. One owing more than one debt to the same person has ?he onus of proving that he directed the application of a payment.* APPLICATION OF PAYMENTS. 221 A payment made without direction as to application is pre- sumed to be intended to apply on the earlier of several debts.* 1 Thatcher & Co. v. Massey, 26 S. C. 155, 1 S. E. 465; White v. White, 19 Ky. L. Rep. 1590, 44 S. W. 83. ^Kloepfer v. Maher, 84 N. Y. Supp. 138. 2. Oral evidence. Oral evidence is competent to show that it was agreed that a payment should be applied, not in the order in which the items stood in the account, but in a different manner.* But evidence of an oral agreement as to the order of ap- plying payments on a note after maturity, where the note it- self is silent in relation thereto, is within the rule prohibiting oral evidence to vary or contradict a writing.* IMaok V. Adler, 22 Fed. 570; Christman v. Pearson, 100 Iowa, 634, 69 N. W. 1055. 2 Anderson v. Perkins, 10 Mont. 154, 25 Pac. 92. 3. Direct testimony. The testimony of one of the parties to the transaction, that they looked over their accounts and agreed on a specified balance, and that they then agreed to apply it, or previously had agreed it should be applied, to a cross-demand, is testimony to an act done, constituting payment, and binds a subsequent assignee. It is not a mere admission or declaration which cannot bind an assignee.* iHolcomb V. Campbell, 42 Hun, 398. See also Abbott, Trial Ev. 2d ed. 325, 1029. 4. Direct and circumstantial evidence. The application of payments may be shown by direct evi- dence, or it may be implied from circumstances tending to show it.* 1 Curtis V. Nash, 88 Me. 476, 34 Atl. 273. 222 BEIEF ON I-ACTS. APPEAISAL. Competency. An official appraisal is not inadmissible merely because not made in the presence of the jury. It is in the nature of a pub- lic record; and, the appraiser being called and testifying to its correctness, it may be received in evidence.^ 1 Buckley v. United States, 4 How. 251, 11 L. ed. 961; Miller v. Long Island K. Co. 9 Hun, 194, reversed in 71 N. Y. 380, on other grounds. If there were two appraisers, both must be called. Com. v. Eastman, 1 Cush. 189, 48 Am. Dec. 596. APPROVAL. 1. By judge. 2. By corporation. 1. By judge. Approval of an instrument •when required by statute, from a judge, is a judicial act;' but it may be proved by the cer- tificate of the clerk.'' But vifhen the statute requires examination by the judge, and his approval indorsed on the instrument, oral evidence is not admissible to show an approval prior to the approval formally entered on the record.' If the lav7 does not require approval to be indorsed, it may be proved by a recital in subsequent proceedings,* or by oral evidence^. 1 O'Reilly v. Edrington, 96 U. S. 724, 24 L. ed. 659; 1 Abbott, New Pr. & Forms, 470, 478. 2 United States v. Evans, 2 Fed. 147, 1 Crim. L. Mag. 600, 604, 12 Chicago Legal News, 271. s. P., Schermerhorn v. Talman, 14 N. Y. 93 (oaths). 3 Holden v. Curry, 85 Wis. 504, 55 N. W. 965. 4 Anderson v. Kanawha Coal Co. 12 W. Va. 526. 6 Myers v. McGavock, 39 Neb. 843, 42 Am. St. Rep. 627, 58 N. W. 522. AEBITEATION AND AWARD, 223 2. By corporation. Approval by a person or corporation of an instrument, al- though expressly required by law, may be presumed notwith- standing there was no record of such approval.* 1 Bank of United States v. Dandridge, 12 Wheat. 64, 6 L. ed. 552 (approval of cashier's bond by directors in action by the corporation on the bond). See also Jennings v. Burnham, 56 N. J. L. 289, 28 Atl. 1048, holding that a survey of proprietary lands which have stood upon the public records without question for nearly two hundred years will be conclusively presumed to have been approved by the proprietors. , AEBITKATIOlSr AND AWAED. 1. Presumptions and burden of proof. 2. Parol evidence generally. 3. Testimony of arbitrators. 4. SuflSciency of evidence. 1. Presumptions and burden of proof. Every reasonable presumption will be indulged in favor of an award regular on its face,* and the burden of proof rests upon the party attacking an award.* 1 Haywood v. Harmon, 17 111. 477; Tyblewski v. Svea Fire Assur. Co. 220 111. 436, 77 N. E. 196; Shear v. Mosher, 8 111. App. 119; Witz v. Tregallas, 82 Md. 351, 33 Atl. 718; Leonard v. Boot, 15 Gray, 553 Brush V. Fisher, 70 Mich. 469, 14 Am. St. Rep. 510, 38 N. W. 446 Mosness v. German-American Ins. Co. 50 Minn. 341, 52 N. W. 932 Upshaw v. Hargrove, 6 Smedes & M. 286; Hinkle v. Harris, 34 Mo. App. 223; Locke v. Filley, 14 Hun, 139; Nichols v. Rensselaer County Mut. Ins. Co. 22 Wend. 125 ; Liverpool & L. & G. Ins. Co. v. Goehring, 99 Pa. 13; New York Lumber & W. Working Co. v. Schneider, 119 N. Y. 475, 24 N. E. 4; Young v. Kinney, 48 Vt. 22; Burchell v. Marsh, 17 How. 344, 15 L. ed. 96; Reedy v. Scott, 23 Wall. 352, 23 L. ed. 109. 224 BRIEF ON FACTS. Z Hardin v. Almand, 64 Ga. 582; Heritage v. State, 43 Ind. App. 595, 88 N. E. 114; Gorham v. Millard, 50 Iowa, 554; New Orleans Elevator Co. V. New Orleans, 47 La. Ann. 1351, 17 So. 860; Witz v. Tregallas, 82 Md. 351, 33 Atl. 718 ; Roberts v. Old Colony E. Co. 123 Mass. 552 Brush V. Fisher, 70 Mich. 469, 14 Am. St. Rep. 510, 38 N. W. 446 Birkbeck v. Burrows, 2 Hall, 63; Hardeman v. Burge, 10 Yerg. 202 Dougherty v. McWhorter, 7 Yerg. 239; Ridgell Bros. v. Dupree, — Tex. Civ. App. — , 85 S. W. 1166; Leavitt v. Comer, 5 Cush. 129. 2. Parol evidence generally. The general rule is that parol evidence is not admissible to vary or contradict an award.' But it may be shovcn by parol what took place at the hearing and that the arbitrators ex- ceeded their powers, or that the award was not final.' And parol evidence is admissible to show what matters were sub- mitted to the arbitrators and embraced in the award,' and also to show the consideration by the arbitrators of matters which were not submitted,* or a failure to consider matters which were submitted.* 1 Evans v. Clapp, 123 Mass. 165, 25 Am. Rep. 52; Hinkle v. Harris, 34 Mo. App. 223; Eurber v. Chamberlain, 29 N. H. 405; May v. Miller, 59 Vt. 577, 7 Atl. 818; Doke v. James, 4 N. Y. 568; Barlow v. Todd, 2 Johns. 367; Scott v. Green, 89 N. C. 278. But see Bridgeport v. Eisenman, 47 Conn. 34, holding parol evidence ad- missible to impeach an award and show irregularity in the consultation and proceedings of the arbitrators. 2 Re Williams, 4 Denio, 194. 8 Bennett v. Pierce, 28 Conn. 315; Shackelford v. Burket, 2 A. K. Marsh. 435, 12 Am. Dec. 422 ; Carter v. Shibles, 74 Me. 273 ; Buck v. Spofford, 35 Me. 526; Leonard v. Root, 15 Gray, 553; Morss v. Osborn, 64 Barb. 543; Osborne v. Colvert, 86 N. C. 170, s. c. prior appeal 83 N. C. 365; Converse v. Colton, 49 Pa. 346; Evans v. Clapp, 123 Mass. 165, 25 Am. Rep. 52; Blackwell v. Goss, 116 Mass. 394; Tucker v. Gordon, 7 How. (Miss.) 306; Torrence v. Graham, 18 N. C. (1 Dev. & B. L.) 284; Webster v. Lee, 5 Mass. 334. But it has been held that, where the submission was of all matters in controversy, parol evidence is not admissible to limit the extent of the submission or to show that it was to be confined to matters actually in dispute or controversy. Patrick v. Batten, 123 Mich. 203, 81 N. W. 1081; De Long v. Stanton, 9 Johns. 38; Shelling v. Farmer, 1 Strange, 646. AEBITEATION AND AWARD. 225 *Hubbell V. Bissell, 2 Allen, 196; Hinkle v. Harris, 34 Mo. App. 223; Thompson v. Blanchard, 2 Iowa, 44; Hall v. Vanier, 6 Neb. 85; Dodds V. Hakes, 114 N. Y. 260, 21 N. E. 398; Briggs v. Smith, 20 Barb. 409; Butler v. New York, 7 Hill, 329, s Thompson v. Blanchard, 2 Iowa, 44. 3. Testimony of arbitrators. Testimony of the arbitrators is generally admissible in any case where parol evidence can be received;' as, to show what matters were considered and decided by them/ or to show that they acted in excess of their jurisdiction/ or that there was a mistake in the award,* or that the award had been returned to the clerk within the time stipulated in the arbitration agree- ment.* So, an arbitrator may depose to facts which took place during the arbitration and which tend to show that the award is void for legal cause.* And testimony of an arbitrator show- ing that no final award was made because he, being intrusted with the award, discovered a mistake in it soon after he signed it, and thereupon refused to deliver it, is admissible.'' But an arbitrator cannot testify to impeach his award, as by showing that he did not concur in it or that he was guilty of misconduct.' Nor can he testify to the misconduct of a party if such evi- dence at the same time involves the misconduct of the arbi- trator.' And arbitrators cannot be summoned by the court to explain what on the face of the award is vague and uncertain, nor can the court receive evidence of the referees giving a con- struction of their report and stating what is meant to be pre- sented.*" And the ground of the award cannot be proved by the testimony or declarations of the arbitrators.'* But an arbi- trator may testify as to what took place before him and as to the conduct of a party tending to influence his decision.*^ And an arbitrator who has refused to join in an award may testify to acts of partiality or misconduct on the part of other arbitrators.*^ 1 Spurek v. Crook, 19 111. 415 ; Thompson v. Blanchard, 2 Iowa, 44 ; Evans V. Clapp, 123 Mass. 165, 25 Am. Rep. 52; Huntsman v. Nichols, 116 Mass. 521; Strong v. Strong, 9 Cush. 560; Hodges v. Hodges, 5 Met. 205; Walker v. Walker, 61 N. C. (Phill. L.) 545. SBuck V. Spofford, 35 Me. 526; Evans v. Clapp, 123 Mass. 165, 25 Am. Eep. 52; Hale v. Huse, 10 Gray, 99; Zeigler v. Zeigler, 2 Serg. & E. Abb. Facts — 15. 226 BEIEF ON FACTS. 286; New York v. Butler, 1 Barb. 325, 4 How. Pr. 446; Burbeck v. Burrows, 2 Hall, 03; Osborne v. Calvert, 83 N. C. 365; Converse v. Colton, 49 Pa. 346 ; Hall v. Vanier, 6 Neb. 85 ; Abel v. Fitch, 20 Conn. 90; Stevens v. Gray, 2 Harr. (Del.) 347; Jensen v. Deep Creek Farm & Live Stock Co. 27 Utah, 66, 74 Pac. 427. 3 Dodds V. Hakes, 114 N. Y. 260, 21 N. E. 398. 4 Thompson v. Blanchard, 2 Iowa, 44. 5 Young V. Dugan, 1 G. Greene, 152. 6 Strong V. Strong, 9 Cush. 560. 7 Shulte V. Hennessy, 40 Iowa, 352. 8 Overby v. Thrasher, 47 Ga. 10 ; Tucker v. Page, 69 111. 179 ; Bigelow v. Maynard, 4 Cush. 317; Strong v. Strong, 9 Cush. 560; Ellison v. Weathers, 78 Mo. 115; Schmidt v. Glade, 126 111. 485, 18 N. E. 762; Doke V. James, 4 N. Y. 568; New York v. Butler, 1 Barb. 325, 4 How. Pr. 446; Stone v. Atwood, 28 111. 30; Buocleuch v. Metropolitan Bd. of Works, L. K. 3 Exch. 306, L. E. 5 H. L. 418, 41 L. J. Exch. j\. S. 137, 27 L. T. N. S. 1, 3 Eng. Rul. Cas. 455. 9 Elmaker v. Buckley, 16 Serg. & E. 72. lOAldrich v. Jessiman, 8 N. H. 516; Mulligan v. Perry, 64 Ga. 567. 11 Withington v. Warren, 10 Met. 431. izSpurck V. Crook, 19 111. 415. 13 Levine v. Lancashire Ins. Co. 66 Minn. 138, 68 N. W. 855. 4. SufSciency of evidence. To justify setting aside an award, evidence of the ground of impeachment must be clear and strong.^ 1 Bridgeport v. Eisenman, 47 Conn. 34; Overby v. Thrasher, 47 Ga. 10; Claycomb v. Butler, 36 111. 100; Beam v. Maeomber, 33 Mieh. 127; Goddard v. King, 40 Minn. 164, 41 N. W. 659; Mitchell v. Curran, 1 Mo. App. 453; Atkinson v. Townley, 1 N. J. L. 388; Wood v. Auburn & R. E. Co. 8 N. Y. 160; Bond v. Olden, 4 Yeates, 243; Young v. Kinney, 48 Vt. 22. ASSENT. 227 ASSENT. I. Assent Withottt Signing. 1. Instrument delivered to be retained as evidence. a. Presumption generally. b. Conclusiveness of presumption; rebuttal. 2. Instrument delivered, but to be surrendered again. 3. Direct testimony. U. NoNAssENT Notwithstanding Signing. 4. Presumptions. 5. Neglect to read. 6. Direct testimony. 7. Conditional delivery. (The few leading cases here mentioned are chosen as giving in short compass a convenient clue to numerous authorities sustaining the discriminations indicated.) Assent or acceptance by grantee of deed of trust for creditors, see note in 24 L.R.A. 369. I. Assent Without Signing. 1. Instrument delivered to be retained as evidence. a. Presumption generally. — It is a presumption of law that a party who received an instrument in the ordinary course of business, to be retained as the evidence of his right in respect to the transaction in hand, was acquainted with, and assented to, its contents.* Otherwise, where a previous agreement in different terms had been made, on the faith of which the transaction was had ;* especially where the subsequent delivery of the instrument was to one not authorized to modify the agreement.' Or where the act or omission of the party delivering it prevented the party receiving it from objecting.* Or where delivery was to a casual messenger not authorized to make a contract, the course of business between the parties not requiring any writing.^ Or where the instrument as to which it is sought to invoke the rule 228 BRIEF ON FACTS, formed no part of tte original transaction made, but was de- livered subsequent thereto.' 1 As, for instance, an express receipt with conditions. Belger v. Dinsmore, 51 N. Y. 166, 10 Am. Eep. 575. Or a receipt or bill of lading for freight to be shipped, with conditions. Grace v. Adams, 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. 131; Cox V. Central Vermont K. Co. 170 Mass. 129, 49 N. E. 97, and cases cited; Schaller v. Chicago & N. W. R. Co. 97 Wis. 31, 71 N. W. 1042, and cases cited. Contra: Chicago & N. W. R. Co. v. Simon, 160 111. 648, 43 N. E. 596. Or a receipt given for passage money. Steers v. Liverpool, N. Y. & P. S. S. Co. 57 N. Y. 1, 15 Am. Rep. 453, with note. So held, also, of a statement of an account between an employee and his employer, showing the exact amount of his compensation for a stated period of time. Goldsmith v. Latz, 96 Va. 680, 32 S. E. 483. And of an invoice and bill of lading with conditions of the sale. Dicker- son V. Matheson, 6 C. C. A. 466, 14 U. S. App. 569, 57 Fed. 524. This presumption above stated applies to married women; and is con- clusive in the absence of proof to the contrary or of fraud or undue influence. Smyth v. Munroe, 84 N. Y. 354, Affirming 19 Hun, 550. ZBostwick V. Baltimore & O. R. Co. 45 N. Y. 712; Mobile & M. R. Co. V. Jurey, 111 U. S. 584, 28 L. ed. 527, 4 Sup. Ct. Rep. 566. 3 Fillebrown v. Grand Trunk R. Co. 55 Me. 462, 92 Am. Dec. 606 ( carrier's receipt ) . 4 Palmer v. Hartford F. Ins. Co. 54 Conn. 488, 9 Atl. 248 (insurance policy on renewal, delivered to the party himself without the original to compare it with). So held, also, where the paper as delivered was not fully legible; as, for instance, by reason of a stamp covering part of it. Perry v. Thomp- son, 98 Mass. 249. And where the delivery of the bill of lading was after the goods had been already shipped, bo that the party shipping and receiving the bill of lading could not have reclaimed the goods had he objected to the contents of the bill. Guillaume v. General Transp. Co. 100 N. Y. 491, 3 N. B. 489, and cases cited. (Here this rule was applied where the shipper had been informed that the ship would sail on the day before the bill of lading was received by him, and had no information to the contrary, although it did not sail until later.) 6 Buckland v. Adams Exp. Co. 97 Mass. 124. Compare Squire v. New York C. R. Co. 98 Mass. 239, 93 Am. Dec. 162 (holding that agent in charge of animals in transportation represented the absent owners, and could bind them). 6 Fisher v. Metropolitan L. Ins. Co. 162 Mass. 236, 38 N. E. 503 (small receipt book containing rules, which was delivered to insured subse- quent to issuance of policy). ASSENT. 229 And the acceptance and retention without objection, by the payee of a judgment note, of a declaration signed by the maker to the effect that the note was given as collateral, are not sufficient to raise an implication of his assent thereto as the basis of relief from an execu- tion on a judgment on the note, where it is denied that such declara- tion was delivered with the note or that it expressed any terms ever considered or suggested, and there is no evidence to overcome such denial. Gillespie v. Webster, 180 Pa. 40S, 36 Atl. 928. b. Conclusiveness of presumption; rebuttal. — A presumption that a party receiving such an instrument assented to its terms cannot be rebutted by mere proof that he did not read it ; ^ but, in the absence of fraud, it must be shown that the circum- stances were such that he would not have been bound to reject the instrument if he had read it.^ 1 Mere ignorance of its contents, arising from failure to read it, or make some reasonable effort to obtain information, is, in the absence of any evidence of fraud, or the use of any means by the party deliver- ing it to deter the party receiving it from fully understanding it, insufficient to overcome the presumption. Schaller v. Chicago & N. W. E. Co. 97 Wis. 31, 71 N. W. 1042. Compare eases in note 1, sec- tion preceding this. 2 Germania F. Ins. Co. v. Memphis & C. R. Co. 72 N. Y. 90, 94, 28 Am. Eep. 113, Affirming 7 Hun, 233. 2. Instrument delivered, but to be surrendered again. The receipt of an instrument for a temporary purpose, which is to be surrendered, such as a passage ticket,* or a letter of in- structions for a third person, not the agent of the party re- ceiving it,^ does not raise a presumption that he read it, and assented to its terms ; but is a circumstance to be considered by the jury on that question.^ 1 Baltimore & 0. R. Co. v. Harris, 12 Wall. 65, 85, 20 L. ed. 354, 359, and cases cited (holding that the burden of showing that a passenger had knowledge of a memorandum on the face of his ticket, limiting the liability of the company, and assented to it, is on the company), s. p.. Brown v. Eastern R. Co. 11 Cush. 97 (memorandum on back of ticket), Approved in Rackett v. Stickney, 27 Fed. 878; Malone v. Boston & W. R. Coi-p. 12 Gray, 388, 74 Am. Dec. 598 (similar memorandum on back, and the words "Look on the back" printed on the face). 2 Rackett v. Stickney, 27 Fed. 878. 8 Brown v. Eastern R. Co. 11 Cush. 97 230 BEIEF ON FACTS. 3. Direct testimony. When the giving of assent is directly in issue it is not compe- terlt for a party, to testify in his own behalf that he never as- sented, this being the question for the jury.' 1 Stanton v. Crispell, 9 Hun, 502 ( question was whether he ever assented to an alleged settlement). Compare Contract. II. NONASSENT NOTWITHSTANDIITG SlGNING. 4. Presumptions. The presumption is that one competent to do business, who signed an instrument, knew and assented to its contents at the time of signing.' 1 Glover v. Silverman, 6 Misc. 347, 26 N. Y. Supp. 779. See also Abbott, Trial Ev. 1002. 5. Neglect to read. The effect of signing, by one who was able to read and under- stand, cannot be defeated by showing that he neglected to do so, relying on the reading by another.' 1 Chapman v. Rose, 56 N. Y. 137, 15 Am. Eep. 401. Confirmed in other states, 22 Cent. L. J. 149. And even in the case of an illiterate person, the burden is upon him to show that the instrument was falsely read, or represented to be other- wise than as written. Knarr v. Elgren, 19 W. N. C. 531, 9 Atl. 875 ; Green v. Maloney, 7 Houst. (Del.) 22, 30 Atl. 672. See also Abbott, Trial Ev. 2d ed. 545, 1002. But compare Wienecke v. Arbin, 88 Md. 182, 44 L.R.A. 142, 40 Atl. 709, holding that a, presumption arose against the instrument where the signer could not read, and the attesting witness gave unsatisfactory testimony, and did not show that the instrument was read to the signer. A shipper should read the contract he is required to sign, otherwise he may be presumed to have assented to the limitations imposed by it. Houston & T. C. R. Co. v. Smith, 44 Tex. Civ. App. 299, 97 S. W. 836. Not reading contract. One who has the ability and the opportunity to read a contract but neglects to do so before signing is estopped by his own negligence from afterward claiming that it does not conform to the previous oral agreement of the parties. Reed v. Coughran, 21 S. D. 257, 111 N. W. 559. See also Fulton v. Messenger, 61 W. Va. 477, 56 S. E. 830, where it was held that a person is bound to know the contents of a paper he signs, and if he neglects to acquaint him- self with it, he must abide the consequences of his neglect unless the signature was obtained by fraud. ASSENT. 231 6. Direct testimony. On the question whether a person was induced to sign an in- strument by misrepresentations, and without knowledge of its contents, he may be asked whether at the time he signed he knew in any way that he was doing what the instrument purported to show that he was doing; but cannot state his understanding as to the purpose of the instrument.^ 1 National Syrup Co. v. Carlson, 155 111. 210, 40 N. E. 492 (release for damages for personal injuries). 7. Conditional delivery. The effect of signing an obligation cannot be defeated by showing that the signer signed only on condition that another should also sign, who has not done so, if there is nothing on the face of the paper indicating that another was to sign, and it is not shown that the obligee was informed of the condition, nor that there was anything which should have put him on inquiry.' 1 Dair v. United States, 16 Wall. 1, 21 L. ed. 491, Approved and Followed in Harris v. Eegester, 70 Md. 109, 16 Atl. 386; Bangs v. Bangs, 41 Hun, 41, and eases cited. Contra: People v. Bostwick, 32 N. Y. 445, which, however, is opposed in Quick v. Milligan, 108 Ind. 419, 58 Am. Rep. 49, 9 N. E. 392, 6 West. Rep. 883, with note, and questioned In Russell v. Freer, 56 N. Y. 67. Otherwise if the instrument mentioned as an obligor the one not signing it. Fletcher v. Austin, 11 Vt. 447, 34 Am. Dec. 698. For an exhaustive discussion of this question, see note to Benton County Sav. Bank v. Boddicker, 105 Iowa, 548, 45 L.R.A. 321. 232 BEIEP ON FACTS. ASSIGNMENT. 1. Necessity of proof. 2. Oral evidence. a. In general. b. Notwithstanding written evidence exists. 3. Form. 4. Proof by entries in books of account. 5. Proof by proof of substitution of party. 6. Description. 7. Principal and collateral. 8. Qualifying the schedules. 9. Reservation. 10. Impeaching. a,. By motive or purpose. b. By evidence of abandonment. 11. Defeasance. Presumption of assent by grantee of deed of trust for creditors and re- buttal thereof, see note in 24 L.R.A. 369. See also Assent; Contbact; Owneeship; Title. 1. Necessity of proof. Assignment of the cause of action must be proved if al- leged,^ but not necessarily proved to have been made in the manner alleged.* iGarrigue v. Loescher, 3 Bosw. 578; Ford v. Bushard, 116 Cal. 273, 48 Pac. 119; Baltimore & 0. R. Co. v. Vanderwerker, 44 W. Va. 229, 28 S. E. 829. Otherwise as to the maker of a promissory note who promises to pay it knowing of an assignment, or, after suit by the assignee has been commenced, admits the assignment. Derry v. Hoiman, 27 S. C. 621, 2 S. E. 841. 2 Bowman v. Keleman, 65 N. Y. 598. 2. Oral evidence. a. In general. — An assignment of a debt resting only in ac- count may be made by words, without any writing.^ 1 Risley v. Phenix Bank, 83 N. Y. 318, 333, and cases cited, with note in 38 Am. Rep. 421. Contra: White v. Kilgore, 77 Me. 571, 1 Atl. 739 ASSIGNMENT. 233 contending, on a review of authorities, that the doctrines of equity- require a delivery). See also Gregg v. Mallett, 111 N. C. 74, 15 S. E. 936 (holding that possession of an open account in favor of another is no evidence of the 'folder's ownership by reason of an assignment to him ) . So held of the right secured by an entry of public lands, unless the par- ties put their transaction in writing; and a receipt for part of the purchase price is not sufficient to exclude oral evidence. Bryan v. Hodges, 107 N. C. 492, 12 S. E. 430. Parol evidence is competent to show an assignment of a cause of action on an open account by a former plaintiff, or it may be proved by a written assignment if there is one, in which case there must be proof of the execution of the assignment. Standifer v. Bond Hardware Co. —Tex. Civ. App. — , 94 S. W. 144. The owner of a chose in action may, for a valuable consideration transfer a good title thereto by a parol assignment. Hanes v. Sackett, 56 App. Div. 610, 67 N. Y. Supp. 843. As to requirements of a writing by the statute of frauds, see Abbott, Trial Ev. 2, 3. h. Notwithstanding written evidence exists. — When the fact of an assignment is only collaterally involved, oral evi^ dence is competent without producing or accounting for the writing, unless contents of the writing are to be proved.* 1 Elliott V. Dyche, 80 Ala. 376. In which event the writing must be produced or accounted for. Voorhies V. Hennessy, 7 Wash. 243, 34 Pac. 931. But even then secondary evidence is admissible when the party offering it proves that his failure to produce the writing is not caused by any lack of diligence on his part. Tibbals v. Iffland, 10 Wash. 451, 39 Pac. 102. 3. Porm. No formal or express words are necessary to prove an as- signment, especially where there is a delivery.' 1 Eirst Nat. Bank v. Clark, 42 Hun, 16, 19. But to prove an assignment by a contractor to do public work of a claim for money to become due him under the contract, a written instru- ment, or delivery of the contract, or sworn evidence of the claim, is essential; and testimony of the contractor that he has made an as- signment is insufficient. Paige v. New York, 33 N. Y. S. E. 844, 11 N. Y. Supp. 496. 234 BEIEF OIT FACTS. r 4. Proof by entries in books of account. Assignment of a fund or credit may be proved by entries in account books of the fund holder, coupled with other evi- dence showing the request or assent of the other party.^ 1 Coates V. First Nat. Bank, 91 N. Y. 20, 30. 5. Proof by proof of substitution of party. The fact that the plaintiff has been substituted as such, proved by the order of substitution and papers on which it was made, is sufficient evidence of the assignment of the cause of action to him.* 1 Eoss-Lewin v. Johnson, 32 Hun, 408, 410, Citing Smith v. Zalinski, 94 N. Y. 519, affirming 26 Hun, 225. (In tliis case after the substitution plaintiff filed no amended complaint alleging the assignment, but on the motion for nonsuit objection was made that plaintiff failed to prove his case in that the evidence of assignment was insufficient; but it was held as above stated. But in Ford v. Bushard, 116 Cal. 273,- 48 Pac. 119, the assignee, on substitution as plaintiff, after his as- signor's death, filed an amended complaint alleging the assignment, and was held to have the burden of proving the assignment the same as any other material fact alleged). 6. Description. Oral evidence is competent for the purpose of applying the description, even so far as to require the rejection of erroneous parts, if what is left is sufficient.* 1 Mansfield v. New York C. & H. K. E. Co. 102 N. Y. 205, 6 N. E. 386,' and cases cited (holding that, for this purpose, a judgment recovered after the assignment was competent). 7. Principal and collateral. Assignment of principal obligation implies assignment of collateral incidents ; * but assignment of collateral does not im- ply assignment of the principal obligation,^ unless there be de- livery of the principal,* or some other evidence of intent to pass it. 1 Jackson ex dem. Barclay v. Blodget, 5 Cow. 202 ; Cady v. Sheldon, 38 Barb. 103. 2 Merritt v. Bartholick, 36 N. Y. 44. Spates County Nat. Bank v. Blake, 43 Hun, 162. ASSIGNMENT. 235 8. ftualifying the schedules. Oral evidence is competent to show other assets as passing besides those mentioned in the inventory annexed to a general bill of sale or assignment;* but not to shov? that demands in- cluded in the general language of the instrument were not intended to pass.* 1 Cram v. Union Bank, 1 Abb. App. Dec. 461. Compare Mims v. Armstrong, .31 Md. 87, 1 Am. Kep. 22. 2 Albright v. Voorhies, 36 Hun, 437. 9. Keserration. A remaining or contingent interest in the assignor is not competent to impeach an assignment of the cause of action, but is competent for the purpose of showing bias in the assignor if he is called as a witness.* iDurgin v. Ireland, 14 N. Y. 322; Moore v. Viele, 4 Wend. 420. But the party offering the proof muat make it known to the court that it is offered for that purpose. Enright v. Franklin Pub. Co. 24 Misc. •180, 52 N. Y. Supp. 704. 10. Impeaching. a. By motive or purpose. — Motive is not relevant ; * but ille- gality of object may be.^ 1 McBride v. Farmers' Bank, 26 N. Y. 450, affirming 25 Barb. 657 ; Peter- son V. Chemical Bank, 32 N. Y. 21, 88 Am. Dec. 298; Gardner v. Barden, 34 N. Y. 433; Westervelt v. Allcock, 3 E. D. Smith, 243; Osborne v. Moss, 7 Johns. 161, 5 Am. Dec. 252; Waterbury v. Wester- velt, 9 N. Y. 598; 1 Abbott, New Pr. & Forms, 515 (citing cases of assignment to affect jurisdiction). 2 Mann v. Fairchild, 3 Abb. App. Dec. 152 ; Moses v. McDivitt, 2 Abb. N. C. 47. i. By evidence of ahandonment. — ^A written assignment may be proved ineffectual by evidence that the consideration was never paid, and that by common consent of both parties the instrument never went into operation, and that by their practi- 236 BRIEF ON FACTS. cal construction the apparent assignor continued to be the 1 Philadelphia, W. & B. R. Co. v. Trimble, 10 Wall. 367-383, 19 L. ed. 948-953. 11. Defeasance. Oral evidence to show that a written assignment was merely as collateral security is not competent if the instrument con- tains special clauses stating a contrary intent.' 1 Marsh v. McNair, 99 N. Y. 174, 1 N. E. 660, and cases cited. [AUTOPSY. 1. One of several physicians. 2. Irregularity. 1. One of several physicians. One of several physicians who together conducted an au- topsy may testify to a fact observed by another.' 1 People V. Willson, 109 N. Y. 345, 16 N. E. 540. 2. Irregularity. A qualified expert may testify as to the results of an autopsy made by him, notwithstanding his failure to follow the di- rections of the statute.' 1 Com. V. Taylor, 132 Mass. 261. A physician who performed an autopsy on the body of a man alleged to have been murdered, was held competent to testify that the injury on his head could not have been produced by a single blow. People V. Schmidt, 168 N. Y. 568, 61 N. E. 907. BELIEF. 237 BAD CASE. Tampering with evidence and jurors. Proof is admissible of a party's attempt to suborn false tes- timony,^ or to suppress material evidence,* or to secure, by bribery of the officers calling them, jurors biased in his favor,' since such acts are in the nature of an admission that he has a bad case. iMcHugh V. McHugh, 186 Pa. 197, 41 L.R.A. 805, 65 Am. St. Eep. 849, 40 Atl. 410. See also Patterson, Railway Acci. Law, 423. For the same principle, see Trial Brief for Civil Issues, 3d ed. Tampering, p. 460; Criminal Trial Brief. 8 As by getting control of the prosecuting witness. People v. Flaherty, 27 App. Div. 535, 50 N. Y. Supp. 574. Or by preventing the attendance of the witness. Carpenter v. Willey, 65 Vt. 168, 26 Atl. 488. For cases as to the presumption against the destroyer (spoliator) of evidence, see note to Hays v. Peterson, 34 L.R.A. 581. 3 Kidd V. Ward, 91 Iowa, 371, 59 JJ. W. 279. BELIEF. 1. Belief as characterizing one's own act. 2. Cross-examining. 3. Asking for impression. 4. Belief at the time of the transaction. 5. Reason for belief. 6. Qualifying words as to belief. As to belief in impending death of one making dying declaration, see Dying Declabations. See also Good Faith; Inducement; Intent; Motive. 1. Belief as characterizing one's own act. Where the belief under v^hich the witness did an act is mate- rial, his testimony to his belief is competent.^ iMcKown V. Hunter, 30 N. Y. 625 (belief in making charge now the sub- 238 BEIEF ON FACTS. ject of an action for malicious prosecution) ; Lake Erie & W. E. Co. V. Matthews, 13 Ind. App. 355, 41 N. E. 842 (belief of one that a freight train carried passengers, and the facts justifying that belief, as a reason for his entering it) ; Baldridge & C. Bridge Co. v. Cart- rett, 75 Tex. 628, 13 S. W. 8 (belief of one crossing a bridge in the safety of the railings, and in the sufficiency of their strength to stop his team, against which they backed, and which gave way, where he is charged with contributory negligence in not jumping from the wagon when his team began to back) ; Bayliss v. Cockcroft, 81 N. Y. 363, and cases cited, affirming 8 N. Y. Week. Dig. 153 (belief that cer- tificate to business character of paper was true, as bearing on intent to evade usury law. But the court says the reception of such testi- mony is not encouraged), s. p., Hamilton v. People, 57 Barb. 625; Goodman v. Stroheim, 4 Jones & S. 216; Farnam v. Feeley, 56 N. Y. 451. A person may testify to his belief that he had a right to ride on a rail- road train, where the issue involved the question of whether he was a passenger. Fitzgibbon v. Chicago & N. W. R. Co. 119 Iowa, 261, 93 N. W. 276. 2. Cross-examining. One who has testified as to his own belief at a given time may be cross-examined as to subsequent declarations of his state of mind on the subject.' 1 Livingston v. Keech, 2 Jones &, S. 547, 553 (holding thus of a party who has testified on his own behalf), s. p., as to hostile witness. Com. v. Moinehan, 140 Mass. 463, 5 N. E. 259. 3. Asking for impression. A hostile witness who will not answer positively as to a fact resting in the observation of minutise may be asked if he "thinks" the fact was so.' ICom. V. Moinehan, 140 Mass. 463, 5 N. E. 259. (Witness testified he did not know whether what he drank was lager beer or not; on cross- examination he said it was weak beer and had an intoxicating effect. Held, no error to allow, on redirect examination the question if he did not think it was lager beer; and whether he had not elsewhere testified that he thought it was. Holmes, J., said: "The application of a class name to an object per- ceived by the senses is generally the expression of an inference, and testimony would be impossible if such inferences could not be stated. If the witness had said that it was lager beer, his testimony would BELIEF. 239 only have meant that he confidently thought, or inferred from the qualities directly perceived by him, that the substance had the other qualities denoted by the name." Compare, however, People v. Williams, 29 Hun, 520, 524, holding it error to allovy a witness who could not swear who it was he saw, to be asked what was his impression, and who he thought it was. Judg- ment therefore reversed. 4. Belief at the time of the transaction. In some cases the belief or impression produced on a wit- ness's mind at the time of the occurrences of which he speaks is admitted as giving the necessary and proper color to his testi- mony to the occurrence ; as in case of circumstantial evidence or opinion evidence.^ 1 See, for instance, Fraser v. Fraser, 5 Notes of Cases, 11, 34; Faussett v. Faussett, 7 Notes of Cases, 88; Davidson v. Davidson, 1 Deane & S. Ecel. Eep. 132, 2 Jur. N. S. 547, 4 Week. Eep. 590. 5. Reason for belief. Where testimony to a fact resting in inference is competent because resulting from observation of minutiae not easily de- scribable with the same effect, the witness may state the reasons for his belief.^ 1 GrifRn v. Brovpn, 2 Pick. 304, 309. (Witness, having testified that a per- son lived extravagantly, may state the reasons for his belief.) 6. Qualifying words as to belief. An answer of a witness is not to be struck out because he qualified his statement of a fact by such cautious expressions as "I would judge," "I think." ^ 1 Hallahan v. New York, L. E. & W. E. Co. 102 N. Y. 194, 6 N. E. 287. (A witness, being asked to describe the position of a, passenger's elbow, said: "His elbow was resting on the sill, and I should judge that it could not project out of the window by the position that he held it in the car It was probably on a level with the out- side of the car [window sill ?] ; my opinion was, from the position, that it was inside." Held, not error to refuse to strike out the parts thus qualified) ; Bradley >'. Second Ave. E. Co. 8 Daly, 289. ("He seemed to me drunk, but I could not say positively that he wag," sufficient to go to the jury. ) 240 BEIEF ON FACTS. Otherwise, if the impression of the witness is merely another name for his opinion, in which case it is not competent unless as opinion evi- dence. Guiterman v. Liverpool, N. Y. & P. Mail S. S. Co. 9 Daly, 119, 125, reversed, without impugning this rule, in 83 N. Y. 358. The words "I think they are worth $100," are not alone sufficient to es- tablish the value of services. Harrison v. Ayers, 18 Hun, 336. Belief of a witness, however confident, not evidence without recollection. Butler V. Benson, 1 Barb. 526, 537. BIAS. 1. In general; presumption. 2. Cross-examining on details. 3. Calling witness's attention. 4. Kepelling. Including Hostility; Interest; Pbejddice. As to Conversations and Admissions, see those titles. 1. In general; presumption. Evidence cannot be excluded because of tbe bias of ^he wit- ness, but bias may be shown for the purpose of affecting the credibility and weight of the evidence.' It is always compe- tent to show the animus of a witness concerning an issue in the action and his feeling toward a party.^ Thus, in a prosecution for carrying concealed weapons it is proper for the defendant to show bias, prejudice, or unfriendly feeling on the part of the witness for the state.^ And a party may show bias on the part of his own witness, or that he is more interested in the other party.* But bias cannot necessarily be inferred from the fact that a witness has voluntarily come from another state to testify in a cause.* 1 Grayson v. State, 162 Ala. 414, 50 So. 349. 2 Walker v. Rome, 6 Ga. App. 59, 64 S. E. 310. 3 Cook v. State, 152 Ala. 66, 44 So. 549. BIAS. 241 * Pittsburgh, C. C. & St. L. R. Co. v. Carlson, 24 Ind. App. 559, 56 N. E. 251; Fine v. Interurban Street E. Co. 45 Misc. 587, 91 N. Y. Supp. 43. STimma v. Timma, 72 Kan. 73, 82 Pac. 481. 2. Cross-examining on details. A party may cross-examine his adversary's witness for the purpose of affecting his credibility by showing the relation be- tween him and the party calling him,^ though the hostility of a witness may be shown by testimony of others as well as by his cross-examination.^ The fact that a witness under cross-examination admits bias does not impair the right of the cross-examiner to call out de- tails and particular facts manifesting it.' 1 Chicago City E. Co. v. Schaefer, 121 111. App. 334. In a prosecution for selling liquor to a person of intemperate habits, a witness for defendant may be asked on cross-examination if a prosecution is not pending against him for the same oflfense. Mc- Cormack v. State, 133 Ala. 202, 32 So. 268. 2 People V. Mallon, 116 App. Div. 425, 101 N. Y. Supp. 814. 3 People V. Penhollow, 42 Hun, 103, and eases cited. The extent of the interest or prejudice of the witness is as material as the main fact of its existence. Blenkiron v. State, 40 Neb. 11, 58 N. W. 587; Stewart v. Kindel, 15 Colo. 539, 25 Pac. 990; State v. Collins, 33 Kan. 77, 5 Pac. 368 ; State v. Dee, 14 Minn. 35, Gil. 27. See also Abbott's Civil Trial Brief, 3d ed. p. 228. Tlie trial court may limit the extent of a cross-examination intended to show bias, and check cumulative evidence and also evidence weaker than the evidence already adduced. Collins v. McGuire, 76 App. Div. 443, 78 N. Y. Supp. 527. 3. Calling witness's attention. The rule that before declarations of a witness (other than a party) can be proved to impeach his testimony, his attention must be called to time, place, etc., although it applies to dec- larations expressing bias, sought to be proved, not to contra- dict, but only to discredit,^ does not preclude proving the fact of a quarrel, and sufficient in the discretion of the court to in- dicate the extent of the difficulty and consequent ill-feeling.* 1 Edwards v. Sullivan, 30 N. C. (8 Ired. L.) 302 (reversing for error in Abb. Facts — 16. 242 BRIEF ON FACTS. not requiring it) ; Baker v. Joseph, 16 Cal. 173. s. p., Queen's Case, 2 Brod. & B. 284, 311. (The leading case. Held, that acta of suborna- tion of perjury could not be proved against the witness, his atten- tion not having been called to them on cross-examination.) But compare Day v. Stickney, 14 Allen, 255, to the effect that hostility in the very matter in issue may be proved, without having called at- tention to it. 2 Ellsworth v. Potter, 41 Vt. 685; Pierce v. Gilson, 9 Vt. 216 (holding it error to exclude). 4. Repelling. To repel an imputation of bias in favor of the party calling the witness, arising from relationship, the party may show that he and his witness have been at variance,^ and apparent interest in the result may be rebutted by showing that the witness has parted with his interest before suit.'' iClapp V. Wilson, 5 Denio, 285. 2 A witness who is sued as a member of a partnership may testify that he has sold out to his codefendant, and was indemnified by him as to all liabilities of the firm. Tomson v. Heidenheimer, 16 Tex. Civ. App. 114, 40 S. W. 425. BIRTH. 1. Premature or still birth. 2. Presumption. 3. Hearsay. 4. Date of birth. See also Age. 1. Premature or still birth. Young V. Makepeace, 103 Mass. 50; Daegling v. State, 56 Wis. 586, 14 N. W. 593; Wallace v. State, 10 Tex. App. 255. BIBTH. 243 2. Presumption. There is no presumption of fact from the mere absence of evidence that a person did or did not die childless.^ 1 Emerson v. White, 29 N. H. 482, and cases cited. 3. Hearsay. Place of birth not a fact of pedigree to be proved by declara- tion of a person since deceased.* 1 Wilmington v. Burlington, 4 Pick. 174 (settlement of pauper). 4. Date of birth. A church record or certificate of baptism, though it may be evidence that the birth occurred previously,* is not evidence of the date of birth as stated therein,* unless it can be made com- petent by proof of the declaration of the parent or other quali- fied person on the faith of which it was made.' An entry in a family Bible need not have been made by a member of the family to render it admissible to prove the date of birth of a member of such family,* but such an entry is in- admissible where the person who made it is living and able to testify.' The date of birth of a child may be proved by the declaration of its father, since deceased.* 1 Ee Wintle, L. E. 9 Eq. 373. And see Whitcher v. McLaughlin, 115 Mass. 167. Compare Bradford v. Bradford, 51 N. Y. 669. 2 Durfee v. Abbott, 61 Mich. 471, 28 N. W. 521 ; Houlton v. Manteuffel, 51 Minn. 185, 53 N. W. 541; Collins v. German-American Mut. Life Asso. 112 Mo. App. 209, 86 S. W. 891. 8 Wihen v. Law, 3 Starkie, 63, 23 Eevised Eep. 757. 4 Union Cent. L. Ins. Co. v. Pollard, 94 Va. 146, 36 L.E.A. 271, 64 Am. St. Eep. 715, 26 S. E. 421. But an entry in a family Bible as to a date of birth, made years after the event occurred, with nothing to show by whom or under what circum- stances it was made except that the Bible came from the possession of a deceased relative, is entitled to little or no weight as evidence. Amey v. Cockey, 73 Md. 297, 20 Atl. 1071. B People V. Mayne, 118 Cal. 516, 62 Am. St. Eev. 256, 50 Pac. 654 (so held under a statute making the declaration of a deceased person ad- missible to prove the date of birth of a relative). « Mutual Eeserve L. Ins. Co. v. Jay, — Tex. Civ. App. — , 101 S. W. 545. 244 BSIEF OU FACTS. BLOOD. And see Idbntitt; QTrAurr. Direct testimony. Any witness who is able from observation to do so may tes- tify whether a spot or stain was blood.^ And the clothing may be submitted to the jury to say if the stains on it are new or old, and, if old, dating back a long time.^ Whether it was human, or animal, blood, is a question for experts only.' 1 Greenfield v. People, 85 N. Y. 75, 39 Am. Eep. 636; People v. Deacons, 109 N. Y. 374, 16 N. E. 676, and cases cited. People v. Burgess, 153 N. Y. 561, 47 N. E. 889 ; Barbour v. Com. 80 Va. 287 ; State v. Welch, 36 W. Va. 690, 15 S. E. 419. Experts may testify from microscopic examination that stains were pro- duced by blood. State v. Martin, 47 S. C. 67, 25 S. E. 113; Green V. State, 97 Tenn. 50, 36 S. W. 700. 2 King V. New York C. & H. E. E. Co. 72 N. Y. 607 (dictum). 3 Dicta in Greenfield v. People, 85 N. Y. 75, 39 Am. Eep. 636 ; Barbour v. Com. 80 Va. 287 ; King v. New York C. & H. E. R. Co. 72 N. Y. 607. Experts may testify which it was. Lindsay v. People, 63 N. Y. 143, re- ported more fully in 67 Barb. 548. As to distinguishing them, see 10 Cent. L. J. 183. On expert testimony and the microscopic examina- tion of blood, see 19 Am. L. Eeg. 529, 593. The testimony of expert witness as to blood stains, ascertained by a chemical or microscopic examination, must be received with great cau- tion on a trial for homicide, and valued according to the learning and skill of the expert and the nature of the investigation, and re- ceived or rejected as any other testimony. State v. Miller, 9 Houst. (Del.) 564, 32 Atl. 137. An expert was permitted to testify as to blood stains on a suit of clothes introduced in evidence, it appearing that the defendant on the day of the alleged murder wore a suit of the same color in the neighborhood, and that the suit was found in his room. People v. Neufeld, 165 N. Y. 43, 58 N. E. 786, BLOODHOUNDS. BLOODHOUl^DS. 245 The competency of evidence in a criminal case going to slxo'v^ the trailing of an accused person by bloodhounds is a debatable question, depending on the character, training, and experi- ence of such animals, and the conditions and circumstances in each particular case. While the authorities vary somewhat as to the requisite preliminary proof, there is a tendency to admit such evidence after a proper foundation for its introduction has been laid.* But before such evidence can be admitted, it must appear that the dogs in question were able at the time and under the circumstancs to follow the scent or track of a person, and that they were accurate, certain, and reliable.* And it is not suiRcient to show that the dog is of pure blood and of a stock characterized by acuteness of sense and power of discrimina- tion.* And it must also be shown that the dog was led on the trail at a point where the circumstances tend clearly to show that the person had been, or on a track which such circum- stances indicate to have been made by him.* The conduct and behavior of bloodhounds after being set upon the trail of a fugi- tive criminal may not be given in evidence by the state for the purpose of proving that the scent of the accused and the scent of the person who perpetrated the crime which is being investi- gated are identical.* And, in an action to recover damages for unlawful search of plaintiff's premises, evidence as to the con- duct of hounds used to track the thief is only admissible on the question of malice, in mitigation of damages, and evidence as to the breeding and training of the dogs, their conduct in trail- ing, letters indorsing their usefulness, and stories concerning their ability, is inadmissible.^ To discredit the evidence fur- nished by bloodhounds in trailing criminals, evidence is not ad- missible of the conduct of other dogs trained by the same train- er which fail to keep the trail.'' 1 Thus, the following cases hold such evidence admissible when properly introduced by other testimony: — Hargrove v. State, 147 Ala. 97, 119 Am. St. Rep. 60, 41 So. 972, 10 Ann. Cas. 1126; Davis v. State, 46 Fla. 137, 35 So. 76; Denham v. Com. 119 Ky. 508, 84 S. W. 538; 246 BEIEF ON FACTS. Spears v. State, 92 Miss. 613, 16 L.R.A.(N.S.) 285, 46 So. 166; State v. Dickerson, 77 Ohio St. 34, 13 L.R.A.(N.S.) 341, 122 Am. St. Rep. 479, 82 N. E. 969, 11 Ann. Gas. 1181; Parker v. State, 46 Tex. Grim. Rep. 461, 108 Am. St. Rep. 1021, 80 S. W. 1008, 3 Ann. Gas. 893. 2Sta:te V. Adams, — Kan. — , 35 L.R.A.{N.S.) 870, 116 Pac. 608. S Pedigo V. Gom. — Ky. — , 42 L.R.A. 432. 4 Ibid. And evidence of the conduct of a, bloodhound in baying the accused was held not admissible upon the trial of an indictment for larceny in cor- roboration of a confession of an alleged accomplice, where there was no evidence to connect the circumstances of the baying of the two defendants or either of them with the making of the tracks at the. time the larceny was committed; nor any evidence that the dog scented any that were made by either of the defendants, nor any way to as- certain that fact. State v. Moore, 129 N. G. 497, 55 L.R.A. 96, 39 S. E. 626. 5 Brott V. State, 70 Neb. 395, 63 L.R.A. 789, 97 N. W. 593. SMcClurg v. Brenton, 123 Iowa, 368, 65 L.R.A. 519, 101 Am. St. Rep. 323, 98 N. W. 881. 7 Spears v. State, 92 Miss. 613, 16 L,R.A.(N.S.) 285, 46 So. 166; Simpson V. State, 111 Ala. 6, 20 So. 573. But see Gallant v. State, 167 Ala. 60, 52 So. 739, holding that a witness testifying as to the ability of dogs to take the scent of human beings may give a, comparisoji be- tween the dogs in question and others he has seen perform, to show his qualification from observation to have and entertain an opinion as to when a dog has been trained to track human beings. For a more extensive review of the cases on this subject, see notes in 42 L.R.A. 432 and 35 L.R.A. (N.S.) 870. BOUND AKIES. 1. How proved in general. 2. Presumptions and burden of proof. 3. Documentary evidence. 4. Parol evidence. 5. Opinions and conclusions. 6. Hearsay; declarations. 7. Variance. 8. Practical location. 1. How proved in general. In determining the question of a disputed boundary, recourse BOUNDAEIES. 247 may be had to every kind of evidence whicli is competent to prove the existence of the fact in issue.^ An agreement adjust- ing boundary lines may be shown by facts and circumstances as well as by direct evidence.* 1 Scott v. Yard, 46 N. J. Eq. 79, 18 Atl. 359. The manner in which a survey was made may be shown by the testimony of one who knows the facts, although he was not the surveyor. Wheel- er V. State, 114 Ala. 22, 21 So. 941. SErnsting v. Gleason, 137 Mo. 594, 39 S. W. 70; Galbraitb v. Lunsford, 87 Tenn. 89, 1 L.R.A. 522, 9 S. W. 365. 2. Presumptions and burden of proof In an action to try title in which the location of a line is in issue, the burden of fixing the line with reasonable certainty is upon the plaintiff.* Plain tiif likewise assumes the burden of proof that at the time of the surveys the road forming the boundary line ran through an established corner which would entitle him to the land in controversy as against defendant in possession under title to the land as part of his survey.' A plaintiff in ejectment claiming under deeds reserving a speci- fied number of acres as previously conveyed has the burden of showing that the land claimed by defendant is not a part of the land reserved.' So, one claiming that calls in a deed which vary from those previously run on the ground did not represent the will of the grantor, has the burden of showing that fact -where the calls in the deed are not inherently inconsistent.* Monuments mentioned in a description of land as marking its botindary are presumed to exist until the contrary is shown.* And land bordering on a highway will be presumed to be bounded by the center line of the highway.® But the presump- tion that the center of a railroad roadbed is the center of a strip •of land conveyed to the railroad company for a right of way may be overcome by evidence of acts of the company inconsist- ent therewith.'' So, a presumption that the title to land bound- ed on a stream goes to the center may be rebutted.' 1 Scott V. Pettigrew, 72 Tex. 321, 12 S. W. 161. 2 Griffith V. Rife, 72 Tex. 185, 12 S. W. 168. 3 Maxwell Land Grant Co. v. Dawson, 7 N. M. 133, 34 Pac. 191, reversed on 248 BRIEF ON FACTS. other grounds in 151 U. S. 586, 38 L. ed. 279, 14 Sup. Ct. Rep. 458; Harman v. Stearns, 95 Va. 58, 27 S. E. 601; Stockton v. Morris, 39, W. Va. 432, 19 S. E. 531. Contra: Roan Mountain Steel & I. Co. v. Edwards, 110 N. C. 353, 14 S. E. 861; Wyman v. Taylor, 124 N. C. 426, 32 S. E. 740. 4 Elliott v. JeflFerson, 133 N. C. 207, 64 L.K.A. 135, 45 S. E. 558. s Kleiner v. Bowen, 166 111. 537, 46 N. E. 1087. 6 Carpenter v. Buekman, 19 Ky. L. Rep. 700, 41 S. W. 579. There is no presumption, however, that property described in an assess- ment for taxes as a "lot" extends to the center of the block in which it is situated. Harvey v. Meyer, 117 Cal. 60, 48 Pac. 1014. And that some portion of a highway is upon a section line creates no presump- tion that it follows the line throughout. Seisler v. Smith, 150 Ind. 88, 46 N. E. 993. 7 Pennsylvania E. Co. v. Pearsol, 173 Pa. 496, 34 Atl. 228. 8 Devonshire v. Pattinson, L. R. 20 Q. B. Div. 263, 57 L. J. Q. B. N. S. 189, 58 L. T. N. S. 392, 52 J. P. 276. And the presumption that the line run hy a. deputy surveyor general as forming the boundary of a reservation was the meander of a creek forming such boundary may be overcome by evidence that the line was located some distance from the creek. Barnhart v. Ehrhart, 33 Or. 274, 54 Pac. 195. But failure of a deed from one ovirning to low- water mark to mention the stream as a boundary will not overcome the presumption of an intent to convey to low-water mark, where the boundary given in the deed was substantially coincident with such mark, unless a contrary intention is manifested from the language of the deed. Slauson v. Goodrich Transp. Co. 94 Wis. 642, 69 N. W. 990. As to effect of boundary grant on river or tide water, see note in 42 L.R.A. 502. 3. Documentary evidence. Recitals in ancient deeds are admissible to prove tlie loca- tion of a disputed line.^ So, recitals in deeds under which either of the parties to a suit claims are admissible to prove boundary lines. ^ So, maps,^ surveys, plats, or field notes* are admissible on the question of boundaries, and a judgment in ejectment, although uncertain in some of its calls, is admissible in a subsequent action where the pleadings and evidence in the former action, together with other evidence offered, show that the boundary lines in the controversy were fixed in the prior action.* 1 Hathaway v. Evans, 113 Mass. 264; Merwin v. Morris, 71 Conn. 555, 42 Atl. 855. BOUNDAEIES. 249 S Fleming v. Moore, 122 Ala. 399, 26 So. 174; Windus v. James, — Tex. — . 19 S. W. 873; Winemann v. Grunmond, 90 Mich. 280, 51 N. W. 509. A prior deed of tlie land in question is competent to show that a stream which forms one boundary was formerly known by a different name. Sanscrainte v. Torongo, 87 Mich. 69, 49 N. W. 497. Recitals in a deed as to boundary lines are admissible in evidence against a, subsequent grantee of adjoining land from the grantors in such deed. Sperry v. Wesco, 26 Or. 483, 38 Pac. 623. And a subsequent deed from the common grantor describing as the dividing line the one which is most favorable to the grantee in the prior deed is admissible in the latter's favor. Ladies' Seamen's Friend Soc. v. Halstead, 58 Conn. 144, 19 Atl. 658. A prior deed of adjoining land executed by the com- mon grantor contemporaneously with a survey of the premises deeded to the later grantee, and calling for the same lines mentioned but not described in his deed, is admissible to fix the limits of his possession as against the prior grantee. Donohue v. Whitney, 133 N. Y. 178, 30 N. E. 848. Grants from the state to adjoining owners are competent to determine the vacancy of the land applied for under the headright laws by establishing the contiguous boundaries. Pritchett v. Ballard, 102 Ga. 20, 29 S. E. 210. But a deed giving the depth of a lot as less than is shown on a plat referred to in the deeds under which a party claims title to an adjoining lot is inadmissible on the question of the depth of such lot when no privity of estate is shown on the part of either party as to the other lot. Guentherodt v. Ross, 121 Mich. 47, 79 N. W. 920. A junior deed is not competent as evidence of the location of the corner of an older deed. Euliss v. McAdams, 108 N. C. 507, 13 S. E. 162. A deed executed after the survey of a division line, which refers to a pri- vate road as the boundary, is admissible to show that the agree- ment under which the survey was made was to divide the land by the center of the road. Gapelli v. Dondero, 123 Cal. 324, 55 Pac. 1057, A deed, even if delivered only for purposes of examination, and if the previous memorandum of sale is fatally defective under the statute of frauds, is competent to show the precise locality of the property which the memorandum of sale was intended to embrace. Ryan v. United States, 136 U. S. 68, 34 L. ed. 447, 10 Sup. Ct. Rep. 913. A deed used as the basis of a survey is admissible to enable the jury to under- stand and apply the oral evidence as to the boundary. Silvey v. McCool, 86 Ga. 1, 12 S. E. 175. s Maps in common and accepted use at the time of a conveyance are admis- sible to show the true location of a line contained in the description in the deed. Hanlon v. Union P. R. Co. 40 Neb. 52, 58 N. W. 590. An ancient map filed in the department of public works, showing the boundary of land taken by the state, is competent although it was not filed at the exact time the state entered upon the land, where it is made about the time of the appropriation. Smucker v. Pennsylvania H. Co. 188 Pa. 40, 41 Atl. 457. A certified copy of an old map filed 250 BRIEF ON FACTS. in the Texas general land office is admissible in evidence to identify ajid fix the boundaries of the land- Ayers v. Watson, 137 U. S. S84, 34 L. ed. 803, 11 Sup. Ct. Rep. 201. But certified copies of maps from « public ofiice are not admissible in evidence to locate a disputed bound- ary, in the absence of any evidence rendering the originals admissible, or of any statute requiring the maps to be filed in such office. Donohue V. Whitney, 133 N. Y. 178, 30 N. E. 848. A recent map is inadmissible to show the location of a disputed boundary, in the absence of any of the facts outlined upon it or connecting it with some possessory act or claim of title of a party to the controversy. Ibid. ■* An ancient survey is evidence of itself to elucidate and ascertain a bound- ary. Mineral E. & Min. Co. v. Auten, 188 Pa. 568, 41 Atl. 327. A junior survey of public lands, though incompetent to establish the lines of an older survey, is admissible to show that before the original marks were effaced the state acknowledged the lines of the older sur- vey on the ground in the location of the younger survey. Fisher v. Kaufman, 170 Pa. 444, 33 Atl. 137. A survey and plan made by a dis- trict surveyor according to the United States standard is admissible in evidence on an issue as to whether n. wall was a party wall. McVey v. Burkin, 136 Pa. 418, 20 Atl. 541. The original plat of land to he granted by the state, which a surveyor is required by statute to make, is evidence of the true shape and location of the land granted. Red- mond V. MuUenax, 113 N. C. 505, 18 S. E. 708. A recorded plat of a state road not shown to have been opened or traveled is admissible in evidence on an issue as to the location of a boundary referred to in a deed as the center of such road. Atwood v. Canrike, 86 Mich. 99, 48 N. W. 950. A plat is competent to show the location of the boundary where the per- son who made it testifies that it is accurate. Wahl v. Laubersheimer, 174 111. 338, 51 N. E. 860; Rowland v. McCown, 20 Or. 538, 26 Pac. 853. An original map to which reference for description is made in a deed is admissible for the purpose of establishing the boundary line of the premises conveyed. Olsen v. Rogers, 120 Cal. 225, 52 Pac. 486. And a plat is admissible in a suit to determine a boundary line, where the conveyances of title of those early in possession of the property referred to the plat. Guentherodt v. Ross, 121 Mich. 47, 79 N. W. 920. A plat may be used to explain the testimony of a surveyor as to the lo- cation of a boundary line, although it is not authenticated in the man- ner required by statute. Justen v. Schaaf, 175 111. 45, 51 N. E. 695. And a map used for such purpose need not be official, nor be shown to be correct. Griffith v. Rife, 72 Tex. 185, 12 S. W. 168. Otherwise where a map is shown to a witness to enable him to testify to the position of objects indicated upon it which are of essential importance in determining the location of a boundary line in controversy. Jacob Tome Inst. v. Davis, 87 Md. 591, 41 Atl. 166. JField notes and plats of an original government survey are competent evi- BOTJNDAKIES, 251 dence in ascertaining where monuments are located. Peterson v. Skjel- ver, 43 Neb. 663, 62 N. W. 43. A certified copy of the original field notes of a survey of land under a government grant filed in the Texas general land office is competent to identify the boundary of the land. Ayers ». Watson, 137 U. S. 584, 34 L. ed. 803, 11 Sup. Ct. Rep. 201. Field notes of an unauthorized survey are inadmissible in evidence in trespass to try title, although certified from the general land office. Von Eosenberg v. Haynes, 85 Tex. 357, 20 S. W. 143. Field notes of a deceased surveyor relative to a boundary controversy are competent evidence. Detwiler v. Toledo, 2 Ohio Dec. 620. Field notes of a void and canceled survey are admissible after the death of a surveyor to show the boundaries of an adjoining survey also made by him a few days before as established and recognized by him when the land was located. Stanus v. Smith, 8 Tex. Civ. App. 685, 30 S. W. 262. But to be admissible the entries in the field book must have been made in connection with the transaction which is the subject of inquiry. Cable V. Jackson, 16 Tex. Civ. App. 579, 42 S. W. 136. 6 Graves v. Hebbron, 125 Cal. 400, 58 Pac. 12. But a judgment roll in an action to foreclose a mortgage is inadmissible on a question of boundary against a plaintiff not in privity with the parties thereto, — especially where the complaint therein does not pur- port to describe the place whose boundary is in question. Martin v. Lloyd, 94 Cal. 195, 29 Pac. 491. A division of an estate made by war- rant of a probate court under which the parties claim is admissible in evidence, not only so far as it relates to the title of the parties, but also to the portion of the estate held by others, from the position of which a disputed boundary can be determined. Hathaway v. Evans, 113 Mass. 264. 4. Parol evidence. Parol evidence is admissible to identify monuments,^ and to prove the existence and location of stakes shown by a survey,* and to show the location of boundary lines in cases of imcertain- ty.' So, parol evidence is admissible to show a mistake in lo- cating a line,* and to show whether the line of a highway as surveyed, or as actually occupied and used, was meant,* and to prove that a particular line was generally recognized by the name used in the deed.* But parol evidence is not admissible to control or vary lines or boundaries definitely fixed by a deed.' 1 Anderson v. Richardson, 92 Cal. 623, 28 Pac. 679; Davidson v. Shulerj 119 N. C. 582, 26 S. E. 340 ; Bonaparte v. Carter, 106 N. 0. 534, 11 S. E. 262. 3 Burke v. McCowen, 115 Cal. 481, 47 Pac. 367. 252 BRIEF ON FACTS. 3 Andreu v. Watkins, 26 Fla. 390, 7 So. 876 ; Hagins v. Whitaker, 19 Ky. L. Rep. 1203, 43 S. W. 224; Sheets v. Sweeney, 136 111. 336, 26 N. B. 648; Driggs v. State, 52 Ohio St. 37, 38 N". E. 882; Kanne v. Otty, 25 Or. 531, 36 Pae. 537; Eugg v. Ward, 64 Vt. 402, 23 Atl. 726. Parol evidence is admissible to show the true boundaries where no specific description is given. Diggs v. Kurtz, 132 Mo. 250, 53 Am. St. Rep. 488, 33 S. W. 815. And to identify the land described in a judgment pleaded as res judicata on the question of boundary, where the plead- ings and papers in the prior suit are lost. Reast v. Donald, 84 Tex. 648, 19 S. W. 795. The boundary line between adjoining surveys is not unknown and uncer- tain so as to render parol proof admissible to locate it, merely because some of the original monuments placed to mark the corners are miss- ing or cannot be identified, if the field notes of the original surveys afi'ord means for ascertaining the true location of the boundary. Pick- ett v. Nelson, 79 Wis. 7, 47 N. W. 936. 4Capelli V. Dondero, 123 Cal. 324, 55 Pac. 1057; Hopper v. Justice, 111 N. C. 418, 16 S. E. 826. s Wead V. St. Johnsburg & L. C. R. Co. 64 Vt. 52, 24 Atl. 361. BHanlon v. Union P. R. Co. 40 Neb. 52, 58 N. W. 590. The testimony of a surveyor that he ran the disputed boundary line, and that a certain map of the survey is correct, is admissible on the question of the location of such boundary, although his information was gained and the line run in processioning the land. Gunn v. Har- ris, 88 Ga. 439, 14 S. E. 593. And the testimony of a surveyor that, many years before, he surveyed a disputed boundary line, and found it and certain maps to correspond, is competent to establish a location of the line, although the maps are not in evidence and are not shown to be authentic. Wineman v. Grummond, 90 Mich. 280, 51 N. W. 509. 7 Olson v. Keith, 162 Mass. 485, 39 N. E. 410 ; Beardsley v. Crane, 52 Minn. 537, 54 N. W. 740; Fuller v. Weaver, 175 Pa. 182, 34 Atl. 634; Segar V. Babcock, 18 R. I. 203, 26 Atl. 257. 5. Opinions and conclusions. A surveyor's testimony as a man of science is never receiv- able to establish a boundary except in connection v^ith tbe data from which he surveys.^ And opinions of surveyors that when land was originally surveyed only one line was actually run, are incompetent as their testimony should be confined to the facts as they found them to exist on the ground.* And the mere opinion of a surveyor as to whether or not a certain bound- ary was located by a previous government survey before the land was surveyed by himself, is inadmissible.' So, a surveyor cannot give his opinion as to the location of land based on the BOUNDARIES. 253 testimony of a witness or description in deeds.* But a survey- or may give his opinion as to -whether marks on trees or piles of stones were intended as monuments.* And opinions of deceased surveyors as shown by their acts and declarations upon the ground are some evidence upon the question of the true loca- tion of boundary lines.* The understanding of the owner of premises as to the location of the boundary line, derived from the description in the deed, is admissible in connection with testimony relating to the occu- pation of the land and his claim of ownership up to such line, upon the issue of adverse possession.' And a party to a bound- ary line contest may give his opinion based on the other testi- mony as to how much of his land the other party has inclosed, where the evidence tends to show that the inclosure extended over the true line, although not to show right or title in himself independently of any other evidence.' 1 Jones T. Lee, 77 Mich. 35, 43 N. W. 855. 2 Randall v. Gill, 77 Tex. 351, 14 S. W. 134. 3 Burt V. Buseh, 82 Midi. 506, 46 S. W. 790. 4Schultz V. Lindell, 30 Mo. 310. 5 Davis V. Maaon, 4 Pick. 156. 6 Tyrone Min. & Mfg. Co. v. Cross, 128 Pa. 636, 18 Atl. 519. ^ Swerdferger v. Hopkins, 67 Vt. 136, 31 Atl. 153. 8 Payne v. Crawford, 97 Ala. 604, 11 So. 725. 6. Hearsay; declarations. Hearsay evidence, if pertinent and material to the issues, may be received to establish boundaries, in the absence of better evidence.^ Thus, traditionary evidence,^ or evidence of common reputation,^ is admissible. Declarations of deceased persons who were disinterested at the time the declarations were made, in respect to boundary lines and corners of land, are competent evidence to prove their location if such persons had opportunity to be informed in respect thereto.* And the mere fact that the declarant was the owner of an adjoining tract of land does not make his declarations incompetent on the gi-ound of interest.' But the declarant must have had peculiar means of knowing the fact in question,* except where such declarations are against in- terest and are offered in evidence against those claiming 254 BRIEF ON FACTS. througli, or justifying under, declarant.' And tlie deelarani must have died to render his declarations admissible.' Declarations of original landowners, since deceased, made while in possession, are admissible against subsequent grantees to prove the boundaries at the time the declarations were made.® And declarations of deceased owners are admissible although it does not affirmatively appear that they were made in restriction of, or against, their own rights.'" But declarations of a de- ceased owner in possession, even against interest, are not ad- missible to control the location of a boundary line by a well- defined description and an undisputed survey by course and distance.'^ And statements as to a boundary line by one who has no interest in the land at the time are not rendered admis- sible against him by reason of his subsequent ownership, unless they are of such a nature as to create an estoppel.''^ Declarations of a deceased surveyor as to the boundary of a survey, made while running the lines, are admissible in evi- dence,'' but not unless made while he was pointing out or mark- ing the boundaries or discharging some duty relating thereto.** And if not present when the original survey was made, his declarations are not rendered competent because he subsequently subdivided one of the tracts thereon.'^ Inability of a surveyor, on account of his physical condition, to testify either orally or by deposition will render admissible his declarations if other- wise competent. '° 1 Taylor V. Fomby, 116 Ala. 621, 67 Am. St. Eep. 149, 22 So. 910; Donohue V. Whitney, 39 N. Y. S. R. 706, 15 N. Y. Supp. 622. But on the question of boundary testimony as to what was done in the ab- sence of one party by those under whom the other party claims in pointing out the line is hearsay and inadmissible. Phillips v. O'Neal, 85 Ga. 142, 11 S. E. 581. And testimony as to the location of surveys is not admissible if the facts are not within the personal knowledge of the witnesses. Howard v. Zimpelman, — Tex. — , 14 S. W. 59. SDuluth Storage & Forwarding Co. v. Prentice, 50 Fed. 878. 3 Common reputation is admissible to establish a boundary line of general and public interest. Muller v. Southern . Pacific Branch R. Co. 83 Cal. 240, 23 Pac. 265. Or to establish a, public boundary upon which the location of a private boundary depends. Mullaney v. Duffy, 145 111. 559, 33 N. E. 750. BOUNDAEIES. 255 Evidence of common repute is admissible as to boundaries established by a United States survey, where the monuments set in making the survey have disappeared. Thoen v. Roche, 57 Minn. 135, 47 Am. St. Rep, 600, 58 N. W. 686. General reputation is admissible in Connecticut for the purpose of showing, not only public boundaries, but the boundaries of lands of individual proprietors. Kinney v. Farnsworth, 17 Conn. 535. General reputation is admissible to show that a given tree is the corner of a private tract of land. Shaflfer v. Gaynor, 117 N. C. 15, 23 S. E. 154. But evidence of common repute that a certain fence was not on the true boundary line is inadmissible on an issue of title acquired by adverse possession up to the fence. Atwood v. Canrike, 86 Mich. 99, 48 N. W. 950. 4 Bethea v. Byrd, 95 N. C. 309, 59 Am. Rep. 240 ; Spear v. Coate, 3 M'Cord, L. 227, 15 Am. Dec. 627 ; Whalen v. Nisbet, 95 Ky. 464, 26 S. W. 188. 6 Lewis V. John L. Roper Lumber Co. 113 N. C. 55, 18 S. E. 52; Bethea v. Byrd, 95 N. C. 309, 59 Am. Rep. 240. 6 Miller v. Wood, 44 Vt. 378 ; Fry v. Stowers, 92 Va. 13, 22 S. E. 500. 7 Deming v. Carrington, 12 Conn. 1, 30 Am. Rep. 591. 8 Smith V. Cornett, 18 Ky. L. Rep. 818, 38 S. W. 689 ; Shaffer v. Gaynor, li7 N. C. 15, 23 S. E. 154; Miller v. Wood, 44 Vt. 378. SMoran v. Lezotte, 54 Mich. 83, 19 N. W. 757; Smith v. Forrest, 49 N. H. 230; Peters v. Gracia, 110 Cal. 89, 42 Rao. 455; Taylor v. Arnold, 13 Ky. L. Rep. 516, 17 S. W. 361. Statements as to boundaries, made by an officer of a corporation while ne- gotiating a sale of real property, may be proved after his death against the corporation or its subsequent grantees. Holmes v. Turner's Falls Co. 150 Mass. 535, 6 L.R.A. 283, 23 N. E. 305. But declarations by the owners of the west half of a survey as to the location of the southerly line are not admissible against the owners of the east half who do not claim under, and are in no wise connected with, the owners of the west half. Bailey v. Baker, — Tex. Civ. App. — , 42 S. W. 124. 10 Royal v. Chandler, 83 Me. 150, 21 Atl. 842; Wood v. Foster, 8 Allen, 24, 85 Am. Dec. 681; Daggett v. Shaw, 5 Met. 223; High v. Pancake, 42 W. Va. 602, 26 S. E. 536 ; Payne v. Crawford, 102 Ala. 387, 14 So. 854; Wood v. Fiske, 62 N. H. 173. The declarant must at some time have been the owner or in possession of the land to render such declarations admissible. Bartlett v. Emer- son, 7 Gray, 174. And in Massachusetts such declarations must have been made while in the act of pointing out the land. Long v. Colton, 116 Mass. 414. Contra, in Vermont. Powers v. Silsby, 41 Vt. 288. The fact that two deceased owners of conflicting interests in lands both made the same declarations long before the trial, at a time when no controversy existed with regard to the boundary, is sufficient to render such declarations admissible in evidence. Whitman v. Hay- wood, 77 Tex. 557, 14 S. W. 166. Declara,tions of a former owner in possession while defining his possession to a person negotiating for a 256 BBIEF ON FACTS. purchase are admiaaible to aliow the actual extent of his occupation. Abeel v. Van Gelder, 36 N. Y. 513. But declarations as to boundaries, made by a former deceased owner not against interest and not shown to have been uttered in the presence of the other parties or of their predecessors in title, are inadmissible in favor of his successor in interest. Thaxter v. Inglis, 121 Cal. 593, 54 Pac. 86. 11 Shaffer v. Gaynor, 117 N. C. 15, 23 S. E. 154. 12 Reed v. Phillips, — Tex. Civ. App. — , 33 S. W. 986. 13 Clement v. Packer, 125 U. S. 309, 31 L. ed. 731, 8 Sup. Ct. Eep. 907 ; Cottingham v. Seward, — Tex. Civ. App. — , 25 S. W. 797. l*Hunnicutt v. Peyton, 102 U. S. 333, 26 L. ed. 113; Clay County Land & Cattle Co. V. Montague County, 8 Tex. Civ. App. 575, 28 S. W. 704; Tittevington v. Trees, 78 Tex. 567, 14 S. W. 692. IB Angle V. Young, — Tex. Civ. App. — , 25 S. W. 798. le Griffith v. Sauls, 77 Tex. 630, 14 S. W. 230. 7. Variance. A mere variance which, may be cured hy amendment, and not a cause of action wholly unproved, exists where the description in a complaint in ejectment differs from the proof as to two sides of the lot, but is correct as to patent, number of lot, and the other two sides.^ Proof that the true boundary line was within that alleged in the complaint, in an action to reform an agreement fixing the boundary line between adjoining owners, so as to establish the true line, is not a fatal variance." And an allegation in a petition to enforce a mechanics' lien describ- ing the land as bounded on one side by a specified street, is sus- tained by evidence that the street was known by that name, whether or not it was the true name.' So, field notes are ad- missible in evidence to locate the beginning corner, although one of the calls was omitted by inadvertence from the description of such notes as set out in the petition. 1 Russell v. Comm. 20 N. Y. 81. 2 Philip Zorn Brewing Co. v. Malott, — Ind. — , 46 N. E. 23, reversed on rehearing in 151 Ind. 371, 51 N. E. 471. 3 Dodge v. Hall, 168 Mass. 435, 47 N. E. 110. 4Irvin V. Bevil, 80 Tex. 332, 16 S. W. 21. 8. Practical location. Where the true boundary is uncertain, practical location is of the highest importance.' Thus, evidence that the use and occu- BOUNDARIES. 257 pation of lands in two adjacent towns by the owners was in ac- cordance with the line in dispute is admissible in evidence on an issue as to the true boundary line between such towns.* And evidence that the dividing line run by a county surveyor has been acquiesced in for many years is competent upon the ques- tion where the true line was originally run by the TJnited States surveyor.® Long acquiescence by a city in the location of an alley way and of improvements made on the line of the alley by an adjoining owner is entitled to great weight in determining, in a conflict of evidence, where the boundary is.* Evidence that parties compelled a trespasser to desist from cutting timber on the land in question is admissible to show how far he occu- pied under his deed.^ And evidence that adjoining owners abandoned a survey of a disputed boundary line and agreed upon another line, and moved their fences to such agreed line, is admissible on appeal from the survey.* I lIUtcliflFe V. Gray, 3 Keyes, 510; Sherman v. Kane, 86 N. Y. 57. 2 Aldrich v. Griffith, 66 Vt. 390, 29 Atl. 376. 3 Taylor v. Fomby, 116 Ala. 621,^ 67 Am. St. Rep. 149, 22 So. 910. ■4 Decatur v. Niedermeyer, 168 111. 68, 48 N. E. 72. The maintenance of a fence between a lot and the street for many years, together with the city's acquiescence in the boundary line so estab- lished, will properly outweigh a recent survey. Mt. Carmel v. Me- Clintock, 155 111. 608, 40 N. E. 829; Kacine v. Emerson, 85 Wis. 80, 39 Am. St. Eep. 819, 55 N. W. 177. The presumption that a fence which has stood for thirty years is located on the line of the original survey is not overcome by the fact that upon a resurvey based upon no original monument, another line is established. Welton v. Poynter, 96 Wis. 346, 71 N. Y. 597. Evidence that a landowner for many years constructed his fences so as to manifest an intention to dedicate a space for highway purposes is sufficient to sustain a verdict that a fence on such space was in the public highway, which had become such by lawful user. Bartlett v. Beardmore, 77 Wis. 356, 46 N. W. 494. s Donahue v. Whitney, 39 N. Y. S. R. 706 15 N. Y. Supp. 622. 6 Horton v. Brown, 130 Ind. 113, 29 N. E. 414. A permanent boundary alleged to have been agreed upon by adjoining own- ers is not conclusively proved by the erection of a fence by one owner, and his cultivation of the land up to the fence. Coleman v. Drane, 116 Mo. 387, 22 S. W. 801. But a boundary line may be acquiesced in and adhered to for so long a time as to constitute proof of so conclu- sive a nature that either party is precluded from offering any evi- dence to the contrary. Baldwin v. Brown, 16 N. Y. 359. But acquies- Abb. Facts — 17. 258 BEIEF ON FACTS. cence for a few months is not conclusive. Eeed v. MeCourt, 41 N. y. 435. The maintenance of a fence for more than twenty years and undisturbed possession of the land for that period, conclusively establishes the boundary, in the absence of any proof of intention not to fix the line. Wentworth v. Braun, 38 Misc. 702, 78 N. Y. Supp. 233. BREED. 1. Expert may tes.tify to. 2. Published herd book. 1. Expert may testify to. Expert may testify to/ but his certificate is only hearsay.' 1 Harris v. Panama E. Co. 4 Jones & S. 373, 378, affirmed without dis- cussing this point, in 58 N. Y. 660; Fleming v. McClaflin, 1 Ind. App. 537, 27 N. E. 875. 8 Hamilton v. Wabash, St. L. & P. K. Co. 21 Mo. App. 152. 2. Published herd book. A published herd book is not competent alone,^ but may be made so by testimony that it is generally received and used by experts as a standard authority.* 1 Crawford v. Williams, 48 Iowa, 247 ; Ashworth v. Kittridge, 59 Am. Dec. 186, note. 2Kuhns V. Chicago, M. & St. P. R. Co. 65 Iowa, 528, 22 N. W. 661; Town- sley V. Missouri P. R. Co. 89 Mo. 31, 1 S. W. 15, note. BUSINESS. 259 BUSINESS. 1. Nature and usual course. 2. Scope of particular trade. 3. Practice of particular house. 4. Contradiction of ground of belief. 5. Who proprietor. See Abbreviations; Ambiquitt; Usage. 1. Nature and usual course. The court may take judicial notice of the nature and usual course of business of banks,^ railroad ^ and express * companies, and boards of trade.* So, also, of the nature and function of such established and well-known instruments of commerce as mercantile agencies.^ So, also, of the manner in which general commercial business is carried on,* and of the usual course of trade to make advances on produce by the use of bills of lading,' and the practice of putting small packages adapted for retail trade into larger pack- ages for wholesale trade.' But courts will not take judicial notice of a custom peculiar to a class of business operations.' 1 Merchants' Nat. Bank v. Hall, 83 N. Y. 338, 38 Am. Eep. 434, affirming 18 Hun, 176 ; Yerkes v. National Bank, 69 N. Y. 383, 25 Am. Rep. 208, 2 Browne Nat. Bank Cas. 296; Hutchinson v. Manhattan Co. 150 N. Y. 250, 44 N. E. 775. Judicial notice will be taken that a collecting bank does not ordinarily remit the identical specie collected to its correspondent. First Nat. Bank v. Wilmington & W. E. Co. 23 C. C. A. 200, 42 U. S. App. 232, 77 Fed. 401 ; Bowman v. First Nat. Bank, 9 Wash. 614, 43 Am. St. Eep. 870, 38 Pac. 211. 2 Cleveland, C. C. & St. L. E. Co. v. Jenkins, 174 111. 398, 62 L.R.A. 922, 66 Am. St. Eep. 296, 51 N. E. 811; Isaacson v. New York C. & H. E. E. Co. 94 N. Y. 278, 46 Am. Eep. 142, reversing 25 Hun, 350 (practice of checking baggage through over several connecting lines) ; Louisville & N. E. Co. V. Boland, 96 Ala. 626, 18 L.E.A. 260, 11 So. 667 (neces- sity of hauling cars of one railroad company over the road of an- other) ; Burlington, C. E. & N. E. Co. v. Dey, 82 Iowa, 312, 12 L.E.A. 436, 3 Inters. Com. Eep. 584, 31 Am. St. Eep. 477, 48 N. W. 98 (cus- tom to transfer cars over different lines without breaking bulk) ; At- chison, T. & S. F. E. Co. V. Headland, 18 Colo. 477, 20 L.E.A. 822, 33 Pac. 185 (practice with reference to separation of passenger and 260 BEIEF OW FACTS. freight trains) ; Smith v. Lake Shore & M. S. E. Co. 114 Mich. 460, — L.E.A. — , 72 N. W. 328, reversed in 173 U. S. 684, 43 L. ed. 858, 19 Sup. Ct. Rep. 565 (custom to issue mileage books) ; State v. Indi- ana & I. S. R. Co. 133 Ind. 69, 18 L.R.A. 502, 32 N. B. 817 (custom to maintain and operate telegraph lines in connection with railroads) ; Lane v. New York, L. E. & W. R. Co. 23 N. Y. Week. Dig. 267 (prac- tice of employing trackmen to inspect the line) ; Topham v. Interurbau Street R. Co. 96 App. Div. 323, 89 N. Y. Supp. 298, reversing 42 Misc. 503, 86 N. Y. Supp. 295 (transfers). 3 The court will take judicial notice that the express business is not con- ducted without the use of railroad or steamboat transportation. Pa- cific Exp. Co. V. Seibert, 44 Fed. 310. 4Nicol V. Ames, 173 U. S. 509, 43 L. ed. 786, 19 Sup. Ct. Rep. 522. 5 Eaton, C. & B. Co. v. Avery, 83 N. Y. 31, 38 Am. Rep. 389, affirming 18 Hun, 44; Followed in Holmes v. Harrington, 20 Mo. App. 661; Wilmot V. Lyon, 11 Ohio C. C. 238, 7 Ohio C. D. 394. 6 Nash V. Classen, 163 111. 409, 45 N. E. 276 (practice of purchaser of grain to be governed by the last available quotations in his posses- sion) ; Best V. Muir, 8 N. D. 44, 73 Am. St. Rep. 742, 77 N. W. 95 (or- dinary course of business in storing grain). The custom is so universal that the court may take judicial notice that the business of a fire insurance agent, at least in the smaller cities and towns, is to represent contemporaneously several insurance companies, and consists in soliciting persons to permit the agent to place insur- ance for them, or in being solicited by those desirous of being insured, for the same purpose. National F. Ins. Co. v. Sullard, 97 App. Div. 233, 89 N. Y. Supp. 934. V Gibson v. Stevens, 8 How. 384, 12 L. ed. 1123. The court will take judicial notice of the ordinary course of trade, that upon the shipment of cotton and taking bills of lading therefor the shipper draws his bill of exchange against the cotton, and attaches thereto the bills of lading and insurance certificates, negotiates it in market, and the holder of the documents when the cotton reaches its destina,tion presents them and receives the cotton, and is entitled to the insurance if delivery is prevented by any risk insured against. Insurance Co. of N. A. v. Svendsen, 77 Fed. 220. 8 King V. Gallun, 109 U. S. 99, 27 L. ed. 870, 3 Sup. Ct. Rep. 85. 9 First Nat. Bank v. Farmers' & M. Bank, 56 Neb. 149, 76 N. W. 430. 2. Scope of particular trade. To prove the scope of a particular trade, neither direct testi- mony of a witness,* nor the opinion of a witness, is competent,' but it must be proved as a fact, by evidence of usage,' etc, 1 Steinbach v. LaFayette F. Ins. Co. 54 N. Y. 90. 2 Home Ins. Co. v. Weide, 11 Wall. 438, 20 L. ed. 197. 3 Steinbach v. LaFayette F. Ins. Co. 54 N. Y. 90. BUSINESS. 261 3. Practice of particular house. Evidence of the uniform practice of a particular house is not competent for the purpose of showing what was done in a par- ticular transaction, if the transaction should have been entered in their books and the books are not produced or accounted for.* Otherwise when such evidence is offered in corroboration of col- lateral testimony.* 1 Bank of Utica v. Hillard, 5 Cow. 153. 8 Knickerbocker L. Ins. Co. v. Pendleton, 115 U. S. 339, 29 L. ed. 432, 6 Sup. Ct. Rep. 74; Dunlop v. United States, 165 U. S. 486, 41 L. ed. 799, 17 Sup. Ct. Eep. 375; Baker v. State, 80 Wis. 416, 50 N. W. 518. 4. Contradiction of ground of belief. After a witness has testified that the ground of his belief of a fact he has sworn to is the existence of a uniform practice or usage to that effect, it is competent, for the purpose of contra- dicting the existence of such practice or usage, that at specifiec times other than that in issue it was not pursued.* 1 Wentworth v. Eastern R. Co. 143 Mass. 248, 9 N. E. 563. 5. Who proprietor. On the issue of proprietorship it is competent to prove inscrip- tion on sign, card, and label, etc.,* or that a person assumed to be the proprietor.* Possession of capital may be shovra. when its lack is relied on to show nonproprietorship.' state V. Wilson, 5 R. I. 291 (sign "boarding by" defendant, placed in bar room in building occupied by him competent to show his proprietorship of liquor business) ; Com v. Twombly, 119 Mass. 104 (business card) ; Com. V. Dearborn, 109 Mass. 368 (tags attached to liquor jugs) ; Com. V. Jennings, 107 Mass. 488 (express tags, marks on barrels of liquor). The manner in which business is conducted, under what name and style, under what license, are pertinent to show in whose interest the business was conducted. Carr v. Manahan, 44 Vt. 246. The declarations of one in possession of a mill that he had leased it, and that the business was his own, and bills of account containing his name printed thereon as proprietor, and meal sacks with words printed there- on to the effect that the meal was manufactured by him, are admissible in favor of one claiming under an execution on the judgment against 262 BRIEF ON FACTS. him, as against one claiming to be the owner. Nodle v. Hawthorn, 107 Iowa, 380, 77 N. W. 1062. 2 State V. Skinner, 34 Kan. 256, 8 Pac. 420. 8 Testimony of a wife that she received money from renting rooms is ad- missible on the issue whether a business was hers or her husband's, where want of capital was one of the reasons for claiming that the business, though carried on by her, was in fact that of her husband. King V. Bird, 85 Iowa, 535, 52 N. W. 494. CAPACITY. 1. Qualification of witness. 2. Comparison with similar machine. 3. Capacity of minor servant to comprehend and avoid danger. See also Ability ; Chabactee; and as to Mental Capacity see Sanity. 1. Qualification of witness. A witness who has had actual experience of the capacity of a machine * or structure,* if not such as in ordinary use in com- mon life,' may testify what is its capacity. The fact that the witness's examination was long after the time to which the evidence should be directed does not render his testimony incompetent.* iBemis v. Central Vermont E. Co. 58 Vt. 636, 3 Atl. 531 (holding expert evidence to prove that a crane was of sufficient capacity and repair, competent. The experts were a carpenter who had repaired it, and the roadmaster and division superintendent. Held, that their quali- fication as experts was in the discretion of the court) ; Louisville, N. A. & C. E. Co. V. Berkey, 136 Ind. 181, 35 N. E. 3 (capacity of iron in a coupling pin) ; Little v. Head & D. Co. 69 N. H. 494, 43 Atl. 619 (capacity of iron hooks to suspend staging of given weight) ; Conway V. Fitzgerald, 70 Vt. 103, 39 Atl. 634 (capacity of cars to carry logs, although witness's experience has not been on the route in question ) . CAPACITY. 263 * Paddock v. Bartlett, 68 Iowa, 16, 25 N. W. 906 (action for price of build- ing packing house of specified capacity. Witnesses whose opinions are based upon observation and experience in working in a pork house are competent to testify as to the capacity of the house for packing pork); Osten v. Jerome, 93 Mich. 196, 53 N. W. 7 (capacity of ditch to carry water) ; Brown v. Swanton, 69 Vt. 53, 37 Atl. 280 (capacity of sluice under public highway to carry off water) ; Frey v. Lowden, 70 Cal. 550, 552, 11 Pac. 838 (capacity of ditch for carrying water to mine, a question of fact, to which an expert in mining and measuring and selling water may testify, although not scientifically trained in measurements ) . That opinion evidence is competent as to safe carrying capacity of a ship, see Ogden v. Parsons, 23 How. 167, 16 L. ed. 410. S According to Bemis v. Central Vermont R. Co. 58 Vt. 636, 3 Atl. 531, the competency of opinions as to the capacity of a machine depends on its being a peculiar or unusual one, — not such as is in ordinary use. Hence, opinions as to the safe capacity of a railroad derrick were held incompetent. And if the question is one requiring special knowledge and skill, a nonex- pert cannot testify. Kansas City, Ft. S. & M. R. Co. v. Cook, 57 Ark. 387, 21 S. W. 1066 (holding that a nonexpert could not answer a ques- tion put to him as to whether from his knowledge of the country and the water carried by a certain slough in times of ordinary high water, he thinks an opening 100 feet wide in a railway embankment is suffi- cient to carry off the waters in times of ordinary flood). 4National Bank & L. Co. v. Dunn, 106 Ind. 110, 6 N. E. 131 (two years held not too long, where the testimony related to the structure and general character) ; Burns v. Welch, 8 Yerg. 117 (test' nony of witness as to capacity of sawmill, founded upon knowledge acquired four years previously, competent). 2. Comparison with similar machine. To show the capacity of a patented machine, a witness who has used one of the same kind, manufacture, and number may testify to its capacity, although he never saw the one in suit.^ And on the question whether a machine performed the work which it was intended to, and which it was contracted it would perform, testimony comparing it with a good machine used by the purchasers, showing that it was insuiEcient, is competent.* 1 Sprout v. Newton, 48 Hun, 209 (alleged breach of warranty of capacity of evaporator, as defense to action for price. Held, that plaintiff might prove capacity of an exactly similar one. The court says this tends to show capacity, assuming that the machine was perfect in all its parts. Any defects impairing its power would be the subject 264 BRIEF ON FACTS. of proof) ; Dempster Mill Mfg. Co. v. Fitzwater, 6 Kan. App. 24, 49 •Pac. 624. See also Brierly v. Davol Mills, 128 Mass. 291 (admitting testimony to the working of one substantially similar). In National Bank & L. Co. v. Dunn, 106 Ind. 110, 6 N. E. 131, a. similar ruling was sustained on the ground that it was an incidental and in- ferential point; distinguishing McCormick Harvesting Maeh. Co. v. Gray, 100 Ind. 285, where it was held error to allow a witness to testify how a machine worked, based on comparison with other machines not produced. But in McCormick Harvesting Maeh. Co. v. Brower, 88 Iowa, 607, 55 N. W. 537, evidence as to the draft of a machine as compared with other machines of like character was held inadmissible on the question as to whether the machine complied with the warranty that it would work well. 2 Davis's Sons v. Sweeney, 80 Iowa, 391, 45 N. W. 1040. 3. Capacity of minor servant to comprehend and avoid danger. At what age the presumption as to a child's capacity to under- stand and appreciate danger arises is a question of law, and not of fact.^ But whether the burden of showing the child's capac- ity or incapacity, as the case may be, to understand and avoid danger has been met by him upon whom the law declares that burden to rest, is generally a question for the jury.* The courts have very generally fixed upon the age of fourteen as the time when the presumption of the child's incapacity to understand and avoid danger will no longer be indulged, and when the burden of showing such incapacity will rest upon him who asserts it. Prior to fourteen years of age, a child is held prima facie incapable of exercising judgment and discretion.^ But, of course, this presumption may be rebutted by evidence.* The presumption is not rebutted, however, by evidence that the child was "bright, smart, and industrious." ° If the child is over the age of fourteen, the prima facie presumption that he is capable of exercising judgment and discretion will be indulged.^ 1 Burnett v. Eoanoke Mills Co. 152 N. C. 35, 67 S. E. 30; Nagle v. Alle- gheny Valley E. Co. 88 Pa. 35, 32 Am. Rep. 413; E. S. Higgins Car- pet Co. v. O'Keefe, 25 C. C. A. 220, 51 U. S. App. 74, 79 Fed. 900. 2 Bromberg v. Evans Laundry Co. 134 Iowa, 38, 111 N. W. 417, 13 Ann. Cas. 33. 3 Pratt Coal & I. Co. v. Brawley, 83 Ala. 371, 3 Am. St. Rep. 751, 3 So. 555; Jefferson v. Birmingham E. & Electric Co. 116 Ala. 299, 38 L.E.A. 458, 67 Am. St. Eep. 116, 22 So. 546; Hazlerigg v. Dobbins, 145 CAEBOlSr COPIES. 265 Iowa, 495, 123 N. W. 196 ; McDonald v. Metropolitan Street R. Co. 80 App. Div. 233, 80 N. Y. Supp. 577; Kehler v. Schwenk, 144 Pa. 348, 13 L.R.A. 374, 27 Am. St. Rep. 633, 22 Atl. 910; Goodwin v. Columbia Mills Co. 80 S. C. 349, 61 S. E. 390; Lynchburg Cotton Mills v. Stan- ley, 102 Va. 590, 46 S. E. 908; Ewing v. Lanark Fuel Co. 65 W. Va. 726, 29 L.R.A.(N.S.) 487, 65 S. E. 200. 4 Pratt Coal & I. Co. v. Brawley, 83 Ala. 371, 3 Am. St. Rep. 751, 3 So. 555; Lynchburg Cotton Mills v. Stanley, 102 Va. 590, 46 S. E. 908; Tucker v. Buffalo Cotton Mills, 76 S. C. 539, 121 Am. St. Rep. 957, 57 S. E. 626; Goodwin v. Columbia Mills Co. 80 S. C. 349, 61 S. E. 390. 6 Tutwiler Coal, Coke & I. Co. v. Enslen, 129 Ala. 336, 30 So. 600. «Lovell V. De Bardelaben Coal & I. Co. 90 Ala. 15, 7 So. 756; Kehler v. Schwenk, 144 Pa. 348, 13 L.R.A. 374, 27 Am. St. Rep. 633, 22 Atl. 910; Greenway v. Conroy, 160 Pa. 185, 40 Am. St. Rep. 715, 28 Atl. 692; Wilkinson v. Kanawha & H. Coal & Coke Co. 64 W. Va. 93, 20 L.E.A.(N.S.) 331, 61 S. E. 875; Ewing v. Lanark Fuel Co. 65 W. Va. 726, 29 L.R.A.(N.S.) 487, 65 S. E. 200; Malsky v. Schumacher & Ett- linger, 7 Misc. 8, 27 N. Y. Supp. 331; Groth v. Thomann, 110 Wis. 488, 86 N. W. 178. For other cases on this subject, see note in 29 L.R.A. (N.S.) 487. As to duty to warn minor servant of dangers of which he is already aware, see note in 29 L.R.A. (N.S.) 111. As to whether incompetence of a minor to perform the duties of a partic- ular employment may be inferred from his minority alone, see note in 20 L.R.A.(N.S.) 331. CAEBOl^ COPIES. Carbon copies of documents are generally received in evidence as duplicate originals.^ 1 National Harvester Co. v. Elfstrom, 101 Minn. 263, 12 L.R.A. (N.S.) 343, 118 Am. St. Rep. 626, 112 N. W. 252, 11 Ann. Cas. 107; Wright v. Chicago, B. & Q. R. Co. 118 Mo. App. 393, 94 S. W. 555; Cole v. Ell- wood Power Co. 216 Pa. 283, 65 Atl. 678; Virginia-Carolina Chemical Co. V. Knight, 106 Va. 674, 56 S. E. 725; Gardner v. Eberhart, 82 111. 316; Westbrook v. Fulton, 79 Ala. 510; Chesapeake & 0. R. Co. v. Stock, 104 Va. 97, 51 S. E. 161. 266 BEIEF ON ITACTS. CAEE. 1. Opinion evidence. a. In matter of special knowledge. b. In matter of common life. 2. Form of question to witness. 3. What might have been done. 4. Whether injury might have been avoided. 5. Conduct of the witness. 6. Observation dependent on minutiae. 7. General habit. 8. Taking advice. 9. Evidence of other accidents. 10. Precautions. a. In general. b. Subsequent to the fact. 11. Variance. a. In general. b. Degree of negligence. 12. Circumstantial evidence. 13. Presumptions and burden of proof. a. In general. b. Presumption of want of care from fact of loss or injury. (1) In general. (2) Statutes making injury prima facie evidence of negligence. c. Contributory negligence. (1) Burden of proof. ( 2 ) Presumptions. 14. Cogency of evidence. See also Condition; Duty; Negligence. As to Character for Care or Skill, see Chabacteb. 1. Opinion evidence. a. In matter of special Jcnowledge. — On any subject not with- in common knowledge and experience of men of common educa- tion, in the ordinary walks of life, an expert witness may be asked whether or not a supposed act would be proper or prudent under specified circumstances, though that is to be the very question for the jury if they find the fact as supposed.^ 1 Eastern Transp. Line v. Hope, 95 U. S. 297, 24 L. ed. 477, and cases cited ( an action for loss from negligent towing, holding it not error to ask a CAEE. 267 pilot and tugboat captain of many years' experience whether it would be safe and prudent to tow three abreast in wide waters in high wind). Carpenter v. Eastern Transp. Co. 71 N. Y. 574, affirming 67 Barb. 570, dic- tum (that witness may be asked whether specified conduct in towing is seamanlike and proper). Ayres v. Binghamton Water Comrs. 22 Hun, 297, holding it competent to ask what would have been a proper manner of filling a street excava- tion, but not as to how you would do it. Hayes v. Southern P. Co. 17 Utah, 99, 53 Pac. 1001, holding it competent to ask whether buildings of a more or less complicated structure, used exclusively in railroad business, and whose construction requires par- ticular skill, were properly and carefully constructed. Culver V. Alabama Midland R. Co. 108 Ala. 330, 18 So. 827, holding that a witness may testify that a specified distance at which a, person was standing from a railroad track when killed by a passing train was a safe one, where the company contends that he was standing in danger- ous proximity to the track. Grant v. Varney, 21 Colo. 329, 40 Pac. 771, holding it competent for experi- enced miners to be asked as to the proper method of timbering a drift run in such grounds as the one in question. Laufer v. Bridgeport Traction Co. 68 Conn. 475, 37 L.R.A. 533, 37 Atl. 379, holding it competent to ask experts in the management of elec- tric cars what sort of management of such a car would be reasonable. Lang V. Terry, 163 Mass. 138, 39 N. E. 802, holding it competent to ask an expert in the use of derricks as to whether a derrick without a guy rope is a safe and proper one to use for certain work, and as to the usual and proper method of attaching a guy rope. Olmscheid v. Nelson-Tenney Lumber Co. 66 Minn. 61, 68 N. W. 605, holding that witness may be asked as to the effect on the safety of the operator of using a "bolting saw" without a, carriage attachment. Kumberger v. Congress Spring Co. 158 N. Y. 339, 53 N. E. 3, holding that witness may be asked whether it is proper to place an engine on a floor without knowing what that floor is, where it is disputed as to whether the vendee was to provide a foundation for the engine. Cochrane v. Little, 71 Md. 323, 18 Atl. 698, holding competent, testimony that legal advice under given circumstances was not such as a prudent and careful lawyer of ordinary capacity would have given. Whether a given act is performed in a prudent and proper manner is a subject upon which a witness qualified to speak may express an opin- ion. He may state the manner of the performance, and whether the precautions taken or work done were reasonably sufiicient for the purpose in view; but whether a line of conduct, like the deposit ot refuse from a mine in a stream, is negligent or careful, is for the jury after the facts are laid before them. Elder v. Lykens Valley Coal Co. 157 Pa. 490, 37 Am. St. Eep. 742, 27 Atl. 545. 268 BEIEB' ON FACTS. Expert evidence has been held competent to show the proper method of load- ing car wheels on a, flat car (Meily v. St. Louis & S. F. R. Co. 215 Mo. 567, 114 S. W. 1013) ; as to the proper manner of constructing a trestle in a logging railroad (Bundy v. Sierra Lumber Co. 149 Cal. 772, 87 Pac. 622) ; as to whether forcing a stick of frozen dynamite into a drill hole was a dangerous operation (Currelli v. Jackson, 77 Conn. 115, 58 Atl. 762) ; as to precautions necessary in repairing broken electric wires (Jacksonville Electric Co. v. Sloan, 52 Fla. 257, 42 So. 516) ; as to whether proper care had been exercised in the installation of electric light wires in a building ( German- American Ins. Co. V. New York Gas & Electric Light Co. 103 App. Div. 310, 93 N. Y. Supp. 46). For other cases involving expert testimony, as to the proper construction of a thing, see Consteuction. h. In matter of common life. — On a subject ■witMn the com- mon knowledge and experience of men in the ordinary walks of life and of common education, a witness cannot be asked whether or not the act was careful or prudent,^ even though he be an expert in the estimation of risks caused by such acts.^ 1 But the witness may be asked for facts, as, whether he observed anything rendering it an unfit place. Baltimore & 0. E. Co. v. Schultz, 43 Ohio St. 270, 54 Am. Eep. 805, 1 N. E. 324 (sufficiency of fence) ; Fraser v. Tupper, 29 Vt. 409 (opinions as to suitableness of a day for setting fires, excluded) ; Higgins v. Dewey, 107 Mass. 494, 9 Am. Eep. 63 (opinion that there was no probability such fire would spread, exclud- ed). Nonexperts are not competent to testify that a machine was very dan- gerous for a child of tender years to be around, the dangerous char- acter of the machine being a question for the jury. Evans v. Mills, 124 Ga. 318, 52 S. E. 538. And so as to the question whether cog wheels should have been covered. Marks v. Harriet Cotton Mills, 135 N. C. 287, 47 S. E. 432. Whether a, railroad company's rule requiring work trains to flag regular trains was an exercise of proper care was held a question for the jury and not a proper subject for opinions. Gulf, C. & S. F. R. Co. V. Hays, 40 Tex. Civ. App. 162, 89 S. W. 29. 2 Milwaukee & St. P. E. Co. v. Kellogg, 94 U. S. 469, 474, 24 L. ed. 256, 259, an action for negligently causing fire, holds that it is not error to exclude a question to an insurance expert, as to whether, owing to the distance between the buildings, one would be considered an ex- posure to the other, increasing the risk. s. p., Mulry v. Mohawk Val- ley Ins. Co. 5 Gray, 541, 66 Am. Dec. 380. See the contrary doctrine advocated in 19 Am. Law Eecord, 701. And see Hill v. Portland k CAEE. 269 R. R. Co. 55 Me. 438, 92 Am. Dec. 601, approved in Stowe v. Bishop, 58 Vt. 498, 56 Am. Rep. 569, 3 Atl. 494. White V. Ballou, 8 Allen, 408 (an action for negligently starting fire, in which the court holds that a question as to whether putting wood to dry on the top of an arch with fire in it was safe and prudent was properly excluded). Stowe V. Bishop, 58 Vt. 498, 56 Am. Rep. 569, 3 Atl. 494 (an action for in- jury to a horse by leaving him where he was frightened and ran; hold- ing it proper to exclude a question whether it was prudent or careful to leave such a horse at such a place ) . brink's Chicago City Exp. Co. v. Kinnare, 168 111. 643, 48 N. E. 446, hold- ing the possibility of a driver stopping his team in time to avert run- ning over a persq^n after seeing him in a position of danger not to be a subject for expert testimony. Otherwise of the question whether an electric car could, with proper care and attention, have been stopped in time to avoid a collision. Howland v. Oakland Consol. Street R. Co. 110 Cal. 513, 42 Pac. 983. Morris v. Farmers' Mut. F. Ins. Co. 63 Minn. 420, 65 N. W. 655, holding it a matter of common knowledge, and not a question for expert testi- mony, whether it was dangerous to thresh with steam when a high wind was blowing towards the stacks. Nutt V. Southern P. Co. 25 Or. 291, 35 Pac. 653, holding that whether the lowering of heavy tiles from a flat-car to the ground by rolling them down "skids,'' with a rope around them and snubbed to a post, was a safe method of unloading them, is not «. proper subject for expert testimony. Sappenfield v. Main Street & Agri. Park R. Co. 91 Cal. 48, 27 Pac. 590, holding inadmissible testimony as to whether a pin attaching the horse to the drawhead of a horse car was or was not a safe appliance. Alabama Mineral R. Co. v. Jones, 114 Ala. 519, 62 Am. St. Rep. 121, 21 So. 507, holding a question whether or not the danger of riding on a hand ear while in motion was obvious and patent to any man of com- mon sense, properly excluded. So, the tendency of fire to spread and cause damage under certain circum- stances is a matter of common knowledge, and the question of proper safeguards to prevent its spread is not a subject for expert testimony. Pulsifer v. Berry, 87 Me. 405, 32 Atl. 986. And whether a machine is very dangerous cannot be shown by expert testi- mony where the degree of danger involved in its use can be under- stood by persons of common intelligence without the aid of experts. Gleason v. Smith, 172 Mass. 50, 51 N. E. 460. The question as to whether property carried upon the deck of a canal boat is properly covered so as to protect it from rain is not properly a subject of expert testimony; the facts should be presented to the jury, and the question left them for determination. Schwinger v. Raymond, 105 N. Y. 648, 11 N. E. 952. 270 BEIEP ON FACTS. Expert testimony as to the proper manner of turning a stone so as not to bring an undue strain upon the derrick when hoisting it cannot be rejected on the ground that it is a matter of common knowledge, where experts for plaintiff differed widely from those for defendant. Leslie V. Granite R. Co. 172 Mass. 468, 52 N. E. 542. On an issue whether it was safe to lower a, timber weighing four hundred pounds with a single tackle and no guy line an expert cannot properly testify, the jury being competent to decide the question without the aid of experts. Kelpy v. Triest, 73 App. Div. 597, 76 N. Y. Supp. 742. 2. Form of question to witness. To call for the opinion of a witness on the care, propriety, or prudence of an act,^ he cannot be asked his opinion as to what was or was not done as a matter of fact, as, for instance, that there was nothing that the person whose conduct is in question could have done; ^ whether he omitted or neglected to do any- thing which he might have done ; ' whether he caused the injury by his own negligence or carelessness ; * whether he was "care- ful;" ^ or whether everything was done that could be done.' iBemis v. Central Vermont K. Co. 58 Vt. 636, 3 Atl. 531 (prudence of using a railroad crane or derrick for a specified weight of stone). In Price v. Powell, 3 N. Y. 326 (action against carrier by sea for injury to marble), a seafaring man for forty years, habituated to carrying marble, and familiar with the proper mode of stowing it in sea-going vessels, was allowed to be asked if in his opinion the marble was prop- erly stowed; but this question under the present stricter practice might be objectionable as assuming that the mode of stowing was conclusively proved. 2 Bessemer Land & Improv. Co. v. Campbell, 121 Ala. 50, 77 Am. St. Eep. 17, 25 So. 793. 3 Carpenter v. Eastern Transp. Co. 71 N. Y. 574, 580, affirming 67 Barb. 570 (distinguished in Brink v. Hanover P. Ins. Co. 80 N. Y. 108, 116, where it was held proper to ask witness if he did all he could) ; Fogel V. San Francisco & S. M. E. Co. — Cal. — , 42 Pac. 565; Schwander v. Birge, 46 Hun, 66, and cases cited (omission to provide building with fire escape). 4 Camp V. Hall, 39 Fla. 535, 22 So. 792. BPhifer v. Carolina C. R. Co. 122 N. C. 940, 29 S. E. 578, and cases cited; and Louisville & N. R. Co. v. Milliken, 21 Ky. L. Rep. 489, 51 S. W.- 796, holds inadmissible a witness's opinion that it is not improper or an act of carelessness for a brakeman to sit on top of a freight car with his feet over the side. See also Sickles v. Missouri, K. & T. R. Co. 13 Tex. Civ. App. 434, 35 S. W. 493, holding that a witness cannot state CAEE. 271 that in his opinion the exercise of the highest degree of care by the railroad company would have placed its track and roadbed in a safe condition for the running of trains. So held, also, of the question whether it was negligence for a person having business on a, railroad track to stand on a track immediately in front of a moving train. Hamilton v. Rich Hill Coal Min. Co. 108 Mo. 364, 18 S. W. 977. And Insley v. Shire, 54 Kan. 793, 45 Am. St. Eep. 308, 39 Pac. 713, holds it improper to ask a witness whether or not a member of a firm had exercised due diligence in attending to its business. 6 Fogel V. San Francisvo & S. M. R. Co. — Cal. — , 42 Pac. 585. And Duer v. Allen, 96 Iowa, 36, 64 N. W. 682, holds that evidence that all care was taken that could be was properly excluded. The witness should have been required to state what care was taken. 3. What might have been done. An expert witness, who has testified to the facts, may be asked whether he knew of anything that the person might have done.^ 1 Carpenter v. Eastern Transp. Co. 71 N. Y. 574, 580, affirming 67 Barb. 570 [dictum); s. P., Conditions; Hutchins v. Ford, 82 Me. 363, 19 Atl. 832; Freeman v. Travelers' Ins. Co. 144 Mass. 572, 12 N. E. 372 (train might have been stopped sooner ) . And while he may properly testify that an alleged defect in the machinery could have been discovered by employing prescribed methods, he can- not state that it could have been discovered by the exercise of ordi- nary care and precaution. Pacheco v. Judson Mfg. Co. 113 Cal. 541, 45 Pac. 833. As to the admissibility of evidence other than expert, to show what might have been done, see Geloneck v. Dean Steam Pump Co. 165 Mass. 202, 43 N. E. 85 (evidence as to other appliances which were at hand, and other methods which might have been used, to move the pump, the issue being negligence in causing it to be moved as it was) ; Bessemer Land & Improv. Co. v. Campbell, 121 Ala. 50, 77 Am. St. Eep. 17, 25 So. 793 (evidence of what a superintendent of a mine might have done during a fire in the mine toward procuring means adequate to the rescue of the imprisoned miners). As to the admissibility of evidence to show want of care on the part of a locomotive engineer, and to show what he might have done in the way of seeing and doing, compare Baltimore & 0. R. Co. v. Hellenthal, 31 C. C. A. 414, 60 U. S. App. 156, 88 Fed. 116 ; Alabama G. S. R. Co. v. Burgess, 114 Ala. 587, 22 So. 169; East Tennessee, V. & G. R. Co. v. Watson, 90 Ala. 41, 7 So. 813; Central R. & Bkg. Co. v. Vaughan, 93 Ala. 209, 30 Am. St. Eep. 50, 9 So. 468; Kansas City, M. & B«R. Co. V. Crocker, 95 Ala. 412, 11 So. 262; Alabama G. S. R. Co. v. Richie, 99, Ala. 346, 12 So. 612; Chicago, B. & Q. R. Co. v. Grablin, 38 Neb. 90, 272 BEIEF ON FACTS. 56 N. W. 796, 57 N. W. 522; Sheldon v. Chicago, M. & St. P. R. Co. 6 S. D. 606, 62 N. W. 955 ; Byers v. Nashville, C. & St. L. R. Co. 94 Tenn. 345, 29 S. W. 128; Young v. Clark, 16 Utah, 42, 50 Pac. 832. 4. Whether injury might have been avoided. By a proper hypothetical question assuming the facts claimed to be in evidence, an expert witness may be asked whether with proper skill and care the injury would have resulted.* iBoldt V. Murray, 2 N. Y. S. E. 232, Bradley, J. (action for surgical mal- practice ) . So held, also, of a question whether, if they had been properly loaded, railroad rails could have fallen from a car. McCray v. Galveston, H. & S. A. E. Co. 89 Tex. 168, 34 S. W. 95. 5. Conduct of the witness. Where the witness cannot be asked whether the thing was done as soon as possible, he may be asked if he himself did all he he could to get it done as soon as possible, even though this in- volves the very question for the jury.* And a witness may state that he did all he could.^ But he cannot be asked a question which in effect calls for his opinion as to what constitutes proper care.' 1 Brink v. Hanover F. Ins. Co. 80 N. Y. 108. The same practice applies to other elements in care and diligence. See Ability. Otherwise of the question whether another person did, or omitted, anything which he might have done, etc. See supra. Form of Question, § 2. 2 Little Eock & M. E. Co. v. Shoecraft, 56 Ark. 465, 20 S. W. 272. 3 As to ask a witness to state whether or not he was ordinarily careful at the time in question. Louisville & N. E. Co. v. Bouldin, 110 Ala. 185, 20 So. 325. And one suing for personal injuries cannot state in general terms that he acted cautiously, but he must state the facts showing caution. May- field V. Savannah, G. & N. A. E. Co. 87 Ga. 374, 13 S. E. 459. Nor should he be allowed to designate the degree of care he used. Spring- field V. Coe, 166 111. 22, 46 N. E. 709. 6. Observation dependent on minutiae. The principle that if the fact in question is one the observer's knowledge of which is necessarily derived from minutiae which cannot be described with the same effect as observed unless the CAEE. 273 impression of the witness is given, the witness may state the fact directly as he apprehended it, leaving the minutiae to be called out on cross-examination,^ applies to the case of any complex mechanical operation. An expert who observed the work may be asked whether it was carefully and properly done.^ And an expert who did not see it may state his opinion upon an hy- pothetical question,* even though it be the very question for the jury.* 1 For other illustration, see Conditigit op Persons, etc., §§ 5 et seq. s. p., Curtis V. Gano, 26 N. Y. 426; Ward v. Kilpatriek, 85 N. Y. 413, 39 Am. Eep. 674 (cabinet maker may be asked if work was a good job and well done) ; Schwander v. Birge, 46 Hun, 66 (citing cases, and holding that opinions are competent on subjects of which observa- tion and experience have given the opportunity and means of knowl- edge, which exists in reasons rather than descriptive facts, and there- fore cannot be intelligently communicated to others not familiar with the subject so as to possess them with a full understanding of it). 8 Eureka Co. v. Bass, 81 Ala. 200, 60 Am. Kep. 152, 8 So. 216 (as to blast- ing, proper to ask if the holes were "properly charged" before the fuse was ignited, that being a collective fact, not a mere opinion; but not to ask "Within what time would it be safe to return to a hole charged with a dynamite cartridge which had failed to explode ?" ) . 8 In Guiterman v. Liverpool, N. Y. & P. S. S. Co. 83 N. Y. 358, the judg- ment in 9 Daly, 119, was reversed for error in allowing the question without stating to the witness the facts to be assumed. The ques- tion here was one of good seamanship. 4 Eastern Transp. Line v. Hope, 95 U. S. 297, 298, 24 L. ed. 477, 478. 7. General habit. On the question of care or negligence in a particular matter evidence of the general habit of a person is not competent,* but if such evidence has been received, one has a right to contradict it by similar evidence to the contrary.^ 1 Chase v. Maine C. R. Co. 77 Me. 538, 1 Atl. 673, and cases cited; Bal- timore & 0. K. Co. V. Colvin, 118 Pa. 230, 12 Atl. 337 (dictum, the point held being that to receive evidence of reputation was reversible error) ; Harriman v. Pullman Palace-Car Co. 29 C. C. A. 194, 56 U. S. App. 313, 85 Fed. 353, and cases cited; Glass v. Memphis & C. R. Co. 94 Ala. 581, 10 So. 215; Atlanta & W. P. R. Co. v. Smith, 94 6a. 107, 20 S. E. 763; Gould v. Schermer, 101 Iowa, 582, 70 N. W. 697; Southern Kansas R. Co. v. Robbing, 43 Kan. 145, 23 Pac. Abb. Facts — 18. 274 BRIEF ON FACTS. 113; Erb v. Popritz, 59 Kan. 264j 68 A-h. St. Eep. 362, 52 Pac. 871, and cases cited; Langworthy v. Green Twp. 88 Mich. 207, 50 N. W. 130; Jagger v. National German- American Bank, 53 Minn. 386, 55 N. W. 545; Eaton v. Boston & M. R. Co. 67 N. H. 422, 40 Atl. 112; Lucia V. Meech, 68 Vt. 175, 34 Atl. 695; Houston v. Brush, 66 Vt. 331, 29 Atl. 380. Otherwise if there is a conflict of testimony as to whether the act was done; as, for instance, in the case of one killed by being struck by a train, where no one saw the accident. Illinois C. E. Co. v. Ashline, 171 111. 313, 49 N. E. 521; Atchison, T. & S. F. R. Co. v. Alsdurf, 68 111. App. 149, s. p., Atchison T. & S. F. R. Co. v. Gants, 38 Kan. 608, 5 Am. St. Rep. 780, 17 Pac. 56 (holding that to disprove use of bai} language evidence of a contrary habit is not competent). As to the admissibility of evidence of the general reputation of one for sobriety, see Stevens v. San Francisco & N. P. R. Co. 100 Cal. 554, 35 Pac. 165; Langworthy v. Green Twp. 88 Mich. 207, 50 N. W. 1.30; Norfolk & W. R. Co. v. Hoover, 79 Md. 253, 25 L.R.A. 710, 47 Am. St. Rep. 392, 29 Atl. 994. As to admissibility of intoxication as evidence of negligence, see note to Kingston v. Fort Wayne & E. R. Co. — Mich. — , 40 L.R.A. 143. 8 Shindler v. Norwood, — N. Y. — , 3 Alb. L. J. 50, reversing judgment for refusal to receive it. 8. Taking advice. Evidence that, before acting in a matter alleged to be negli- gence, the party took competent and skilful advice, and acted in conformity with it, is competent, as tending to show caution and good f aith.^ iWinn V. Abeles, 35 Kan. 85, 57 Am. Rep. 138, 10 Pac. 443, 448; Terre Haute V. Hudnut, 112 Ind. 542, 13 N. E. 686. 9. Evidence of other accidents. The frequency of accident at a particular place is good evi- dence of its dangerous character, and, therefore, in an action against a municipal corporation to recover damages for injuries received from a fall caused by a defective sidewalk, proof that other accidents of the same character have happened there is admissible.' So, in an action for the death of a person who in the night stepped off an approach to a bridge while it was swing- ing around to enable a vessel to pass, — it being alleged that the accident was caused by the neglect of the city to supply sufficient light — it was held competent to prove that another OAEE. 275 person had under the same circumstances met with a similar accident.^ And in an action for damages from fire set out by railroad engines, evidence that other fires had been repeatedly set out by defendant's engines is admissible.* But it has been held that the evidence must be limited to fires set by the par- ticular locomotive which it is alleged set the fire for which action is brought.* 1 District of Columbia v. Armes, 107 U. S. 519, 27 L. ed. 618, 2 Sup. Ct. Rep. 840; Quinlan v. Utiea, 11 Hun, 217, aifirmed in 74 N. Y. 603; Goshen v. England, 119 Ind. 368, 5 L.R.A. 253, 21 N. E. 977; Thomp- son V. Quincy, 83 Mich. 173, 10 L.E.A. 734, 47 N. W. 114. 2 Chicago V. Powers, 42 111. 169, 89 Am. Dee. 418. S Henderson v. Philadelphia & R. E. Co. 144 Pa. 461, 16 L.R.A. 299, 27 Am. St. Rep. 652, 22 Atl. 851; Campbell v. Missouri P. R. Co. 121 Mo. 340, 25 L.R.A. 175, 42 Am. St. Rep. 530, 25 S. W. 936. 4 Jacksonville, T. & K. W. R. Co. v. Peninsular Land, Transp. & Mfg. Co. 27 Fla. 1, 157, 17 L.R.A. 33, 65, 9 So. 661, 689. 10. Precautions. a. In general. — ^A person charged with negligence may show that he employed extraordinary care and circumspection ; ' and for this purpose it is proper to ask a qualified witness whether it was usual to provide such safeguards as are shown to have been provided in the case at bar ; * or to show by a qualified wil^ ness the omission of precautions which universal experience has shown were necessary.' And it may also be shown by proper evidence other than ex- pert, that he omitted to employ precautions which he could and should have employed ; * but he in turn may show that in doing as he did, he did only what was customary under the circum- stances.^ ILosee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623 (boiler explosion; competent to show that the boiler was purchased of reputable manu- facturers, as tending to justify use). Distinguished in Mullen v. St. John, 57 N. Y. 567, 15 Am. Rep. 530; Day v. H. C. Akeley Lumber Co. 54 Minn. 522, 23 L.R.A. 513, 56 N. W. 243 (fire from sawdust burner; competent to show that the owner, upon complaint before the fire of the condition of the burner, had directed a competent man to examine it, and see if anything could be done to make it safer). 276 BEIEF ON FACTS. 2 Hart V. Hudson River Bridge Co. 84 N. Y. 56, 60 (pot error to allow defendant, charged with negligence in leaving gate on drawbridge open, to show by an expert that it was not customary to have gates of any kind on such bridges so far as he knew). 3 Flynt Bldg. & Constr. Co. v. Brown, 14 C. C. A. 308, 35 U. S. App. 41, 67 Fed. 68. 4Duer v. Allen, 96 Iowa, 36, 64 N. W. 682; Clampit v. Chicago, St. P. & K. C. E. Co. 84 Iowa, 71, 50 N. W. 673; Hohl v. Chicago, M. & St. P. R. Co. 61 Minn. 321, 52 Am. St. Rep. 598, 63 N. W. 742; Union P. R. Co. v. Brickson, 41 Neb. 1, 29 L.R.A. 137, 59 N. W. 349 )■ Kaminitsky v. Northeastern R. Co. 25 S. C. 53; Abbot v. Dwinnell, 74 Wis. 514, 43 N. W. 496; Union P. R. Co. v. Gilland, 4 Wyo. 395, 34 Pac. 953. s Burns v. Sennett, 99 Cal. 363, 33 Pac. 916 ( competent to show that a strap sustaining a, hoisting apparatus was put up in the manner in which such straps are usually put up) ; Standard Oil Co. v. Tierney, 92 Ky. 367, 14 L.R.A. 677, 36 Am. St. Rep. 595, 17 S. W. 1025 (competent to show that wooden barrels are safe for shipping naphtha, and that it is ordinarily so shipped) ; Rand v. Johns, — Tex. App. — , 15 S. W. 200 (action for negligently loaning money on forged note; competent to show that other business men under the same circumstances acted as the defendant acted) ; Bridger v. Ashe- ville & S. R. Co. 27 S. C. 456, 13 Am. St. Rep. 653, 3 S. E. 860 (competent for defendant charged with negligence in not properly fastening a turntable to show the general custom of railroads in regard to turntables after plaintiff has proved that one railroad com- pany locks its turntables). b. Subsequent to the fact. — But evidence to show precautions taken subsequent to the fact is not competent to show an ante- cedent want of care.^ 1 Isaacs V. Southern P. Co. 49 Fed. 797 (braces used in reconstructing bridge) ; Hager v. Southern P. Co. 98 Cal. 309, 33 Pac. 119 (auto- matic bell at railroad crossing) ; Hodges v. Percival, 132 111. 53, 23 N. E. 423 (air cushions on elevator); Chicago & E. R. Co. v. Lee, 17 Ind. App. 215, 46 N. E. 543 (covering trench in which signal wires under railroad track were strung) ; Georgia Southern & F. R. Co. V. Cartledge, 116 Ga. 164, 59 L.R.A. 118, 42 S. E. 405; Louis- ville & N. R. Co. v. Bowen, 18 Ky. L. Rep. 1099, 39 S. W. 31; Standard Oil Co v. Tierney, 92 Ky. 367, 14 L.R.A. 677, 36 Am. St. Rep. 595, 17 S. W. 1025; Shinners v. Locks & Canals, 154 Mass. 168, 12 L.R.A. 554, 26 Am. St. Rep. 226, 28 N. E. 10; Downey v. Sawyer, 157 Mass. 418, 32 N. E. 654; Fox v. Peninsular White Lead & Color Works, 84 Mich. 676, 48 N. W. 203; Aldrich v. Concord & CABE. 277 M. E. Co. 67 N. H. 250, 29 Atl. 408; Missouri P. E. Co. v. Hennessey, 75 Tex. 155, 12 S. W. 608; Green v. Asliland Water Co. 101 Wis. 258, 43 L.E.A. 117, 70 Am. St. Eep. 911, 77 N. W. 722, and cases cited; Terre Haute & I. E. Co. v. Clem, 123 Ind. 15, 7 L.E.A. 588, 18 Am. St. Eep. 303, 23 N. E. 965. See also, for other cases on this qii"-*-'-'^, Sliinners v. Locks & Canals, 12 L.K.A. 554, and note thereto. But such evidence is competent for the purpose of showing what could have been done. Willey v. Boston Electric Light Co. 168 Mass. 40, 37 L.E.A. 723, 46 N. E. 395. Or to show that the defect was one the defendant was bound to repair. Mitchell v. Plattsburg, 33 Mo. App. 555. And in Kansas evidence of precautions taken immediately after the fact is admissible as part of the res gest. Taunton Copper Mfg. Co. 9 Allen, 181. The better opinion is that it is in the discretion of the court to allow such evidence. CAUSE. 305 d. As to cause of wound or death. — (1) In general. — An ex- pert ^ who has examined an injured person, or the body of one deceased, may state his opinion as to what was the cause of the wound or other injury thereon,* or the cause of death.' And an expert who has not made an examination may state his opinion on an hypothetical question.* The same principle applies to injuries, etc., to animals. ° But a question for this purpose must not propound an hypothesis for which there is no basis of fact.* JSTor must it propound an hypothesis based only on testimony as to one cause of the in- jury, while there is also evidence as to another cause.'' 1 The opinion of one not an expert is not competent. Lewis v. Bell, 109 Mich. 189, 66 N. W. 1091; Harris v. Panama E. Co. 3 Bosw. 7 (error to allow the question whether a wound which the witness saw inflicted on a horse was sufficient to cause death, because the witness was not proved to be skilled as to such wounds, nor to have treated such injuries) ; American Acci. Co. v. Fidler, 18 Ky. L. Eep. 161, 35 S. W. 905, 36 S. W. 528 (error to allow persons not experts in medical science, but who have nursed two or three cases of typhoid fever, amongst which was the person, the cause of whose death was questioned, to give an opinion as to whether the person died from typhoid fever or from the effects of a fall) ; International & G. N. K. Co. v. Kuehn, 11 Tex. Civ. App. 21, 31 S. W. 322 (the wife of a person who dies suddenly a year after an injury cannot, without qualifying as an expert, testify as to the cause of his death ) . ■Compare People v. Sullivan, — Cal. — , 8 Pac. 520 (to effect that a wit- ness experienced with wounds, though not a professional expert, may testify whether a wound was caused by a sharp or dull in- strument) ; Seckinger v. Philibert & J. Mfg. Co. 129 Mo. 590, 31 S. W. 957 (that a physician of twenty-five years' practice is com- petent to testify to the cause of disease, although not a, specialist for that disease). To similar effect, Hardiman v. Brown, 162 Mass. 585, 39 N. E. 192. And Robinson f. Marino, 3 Wash. 434, 28 Pac. 753, holds that a physician and surgeon of twenty years' practice will be presumed competent to give an opinion of the probable cause of injuries which he has treated. a Turner v. Newburgh, 109 N. Y. 301, 16 N. K. 344 (civil case); Stouter V. Manhattan R. Co. 127 N. Y. 661, 27 N. E. 805; Tullis v. Rankin, 6 N. D. 44, 35 L.R.A. 449, 68 N. W. 187 ; Texas C. R. Co. v. Burnett, 80 Tex. 536, 16 S. W. 320; Illinois C. R. Co. v. Treat, 179 111. 576, 54 N. B. 290; McClain v. Brooklyn City R. Co. 116 N. Y. 459, 22 N. E. 1062; People v. Willson, 109 N. Y. 345, 16 N. E. 540 (criminal Abb. Facts — 20. 306 BRIEF OH TACTS. case) ; Chicago v. Didier, 131 111. App. 406, affirmed in 227 111. 595, 81 N. E. 698; West Chicago Street R. Co. v. Dougherty, 209 111. 241, 70 N. E. 586. So, medical experts may testify as to the power of resistance of the skull, and the force requisite to break it. Kennedy v. People, 39 N. Y. 245, 5 Abb. Pr. N. S. 147; Com. v. Piper, 120 Mass. 185 (whether all the injuries to deceased's head could have resulted from the same blow) . SEggler V. People, 56 N. Y. 642, affirming 3 Thomp. & C. 796 (which of two wounds, either by itself necessarily fatal, actually caused death. Opinion not reported) ; State v. Clark, 15 S. C. 403 (whether body found on track was dead before train passed) ; People v. Bar- ker, 60 Mich. 277, 27 N. W. 539 (whether death of one found in the water was caused by drowning or other means). 4 People V. Foley, 64 Mich. 149, 31 N. W. 94 (indictment of father for murder of infant child; not error to allow hypothetical question to physician, as to what caused its death, for the purpose of showing that violence was the cause) ; McClain v. Brooklyn City E. Co. 116 N. Y. 459, 22 N. E. 1062; McKeon v. Chicago, M. & St. P. R. Co. 94 Wis. 477, 35 L.R.A. 252, 69 N. W. 175; Flaherty v. Powers, 167 Mass. 61, 44 N. E. 1074; Rabe v. Sommerbeck, 94 Iowa, 656, 63 N. W. 458; Bowen v. Huntington, 35 W. Va. 682, 14 S. E. 217; State V. Kammel, 23 S. D. 465, 122 N. W. 420; Lovelady v. Birm- ingham R. Light & P. Co. 161 Ala. 494, 50 So. 96. He can be asked what might have caused it, but not what did cause it, according to People v. Hare, 57 Mich. 505, 24 N. W. 843, 846, and Illinois C. R. Co. v. McCollum, 122 111. App. 531. But this distinc- tion is criticized in Donnelly v. St. Paul City R. Co. 70 Minn. 278, 73 N. W. 157, and it is held proper to ask the witness what did cause it. Where evidentiary facts upon which the fact in issue depends are in dispute, opinion evidence as to the ultimate fact must be given upon a hypothetical case. Luning v. State, 2 Pinney, 215, 1 Am. Rep. 153; Wright v. Hardy, 22 Wis. 348; Kreuziger v. Chicago & N. W. R. Co. 73 Wis. 158, 40 N. W. 657. This rule is that questions put to experts for opinion evidence must be so framed as not to pass upon the credibility of any other evidence in the case, else it will usurp the province of the jury or the court. Maitland v. Gilbert Paper Co. 97 Wis. 484, 72 N. W. 1124. 6 Goodrich v. People, 19 N. Y. 574, 577 (supreme court affirmed by court of appeals without questioning this point). 6 People V. Rogers, 13 Abb. Pr. N. S. 370 (proper to ask if wound could have been produced by the club, use of which was in evidence; but not proper to ask if it might have been produced by a stone thrown); Davis v. Travelers' Ins. Co. 59 Kan. 74, 52 Pac. 67; Foster v. Fidelity & C. Co. 99 Wia. 447, 40 L.R.A. 833, 75 N. W. CAUSE. 307 But a question which asks for the opinion of a physician as to the cause of an injury or physical condition, assuming the "statement" made by the attending physician upon the witness stand to be true, is not objectionable as calling for an opinion of one expert based on that of another, although the attending physician had, in con- nection with a description of the injuries sustained by the patient, expressed his opinion that the condition was produced thereby. How- land V. Oakland Consol. Street R. Co. 110 Cal. 513, 42 Pac. 983. V Vosburg V. Putney, 80 Wis. 523, 14 L.R.A. 226, 50 N. W. 403. Compare Quinn v. O'Keeflfe, 9 App. Div. 68, 41 N. Y. Supp. 116 (that the question may assume the absence of other causes for the condition of plaintiff than the injury for which he sues, where plaintiff testi- fies that he knows of no other cause). (2) Form of qwestion. — The question may be either as to the cause of the injury or condition, or conversely, what would be the effect on the body of such a force or blow,* or, in the presence of a given effect, of what causes it was or might be the result.* 1 Williams v. State, 64 Md. 384, 1 Atl. 887; Maitland v. Gilbert Paper Co. 97 Wis. 477, 72 N. W. 1124. Or whether the condition described might be caused by the injury shown. Bush V. St. Joseph & B. H. Street R. Co. 113 Mich. 513, 71 N. W. 851 (but not that it would probably be caused by such an injury. The degree of probability is a proper subject for cross-examination, and need not be indicated in the question ) . Or whether a cause alleged to exist would be sufficient to produce the physical condition claimed to have resulted therefrom. Lacas v. Detroit City R. Co. 92 Mich. 412, 52 N. W. 745; Griffith v. Utica & M. R. Co. 43 N. Y. S. R. 835, 17 N. Y. Supp. 692; Pennsylvania Co. V. Frund, 4 Ind. App. 469, 30 N. E. 1116. Or whether the condition was what it would have been if the claimed cause was a fact. Manufacturers' Acci. Indemnity Co. v. Dorgan, 22 L.R.A. 620, 7 C. C. A. 581, 16 U. S. App. 290, 58 Fed. 945. Or could the injury have been caused by a certain force or occurrence? Smalley v. Appleton, 75 Wis. 18, 43 N. W. 826. To similar effect. Block V. Milwaukee Street R. Co. 89 Wis. 371, 27 L.R.A. 365, 61 N. W. 1101; Montgomery v. Long Island R. Co. 29 N. Y. S. R. 822, 8 N. Y. Supp. 811; Hunter v. Third Ave. R. Co. 21 Misc. 1, 46 N. Y. Supp. 1010. Or that a given force or blow will have a certain effect. Cannon v. Brooklyn City R. Co. 9 Misc. 282, 29 N. Y. Supp. 722. SMoyer v. New York C. & H. R. R. Co. 98 N. Y. 645. 308 BRIEF ON FACTS. (3) Probable position. — The questions, what position a body was in when a blow to which a wound is attributed was prob- ably struck,^ and whether such a blow could have been struck when the persons concerned were in specified relative positions,* do not involve science or skill, and are not proper subjects for opinion evidence. 1 Kennedy v. People, 39 N. Y. 245, 5 Abb. Pr. N. S. 147. At least until evidence has been given as to the kind of weapon used. Trial of Linsday (Syracuse, 1874) ; conviction affirmed, vpithout discussing this point, in 63 N. Y. 143, affirming 5 Hun, 104; s. c. more fully, 67 Barb. 548. 2 People V. Rector, 19 Wend. 569. (4) Exhibiting instrument. — After testimony of an expert that a wound was caused by a designated kind of instrument has been properly received, it is competent to show the witness an instrument unquestionably proved to have been In the hand of the accused, and ask if such an instrument would produce such wounds.^ 1 People V. Carpenter, 102 N. Y. 238, 249, 6 N. E. 584; Gardiner v. Peo- ple, 6 Park. Crim. Rep. 155, 202; Kennedy v. People, 39 N. Y. 245, 5 Abb. Pr. N. S. 147. Compare Wilson v. People, 4 Park. Crim. Rep. 619. • (5) Cav^e of suicide. — ^Whether the suicide of a person hy- pothetically regarded as subject to melancholia might be at- tributed to the disease is not a question for an expert witness, but for the jury.^ 1 Van Zandt v. Mutual Ben. L. Ins. Co. 55 N. Y. 169, 14 Am. Rep. 215. Otherwise of an expert's testimony as to effect of melancholia upon one who was his own patient. Koenig v. Globe Mut. L. Ins. Co. 10 Hun, 558. e. Case unknown to expert. — To show the improbability of an imputed cause, an expert may be asked whether he has ever known a case.^ 1 Doyle V. New York Eye & Ear Infirmary, 80 N. Y. 631, 633. CAUSE. 309 /. Wlmt would hcuve teen. — As to whether, and how, you may prove what would have been, see the following : ' 1 Opinion of bystanders as to whether buildings would have been de- stroyed by fire if they had not been blown up by order of the city authorities. New York v. Pentz, 24 Wend. 668 (not admitted). What effect a log floating down as drift wood and caught on the point of a bridge had in changing the current and causing the bridge to be washed out. Cooper v. Mills County, 69 Iowa, 350, 28 N. W. 633 (not admitted because witness not qualified as expert). Expert testimony as to the efi'ect of a bridge as an obstruction to river. Gault V. Concord E. Co. 63 N. H. 356 (admitted). Expert opinion as to probable action of waters of stream upon adjoining land as afi'ected by alleged obstruction. Meyer v. New York C. &, H. R. R. Co. 12 N. Y. Week. Dig. 188 (admitted). Expert testimony as to efi'ect of erection of milldam upon channel of stream above dam, and as to whether dam backs water up so as to affect the operation of mill above dam. Ball v. Hardesty, 38 Kan. 540, 16 Pac. 808. Ejcpert testimony as to whether a collision could have been avoided by turning bow of defendant's vessel other way. McKerchnie v. Standish, 6 N. Y. Week. Dig. 433. Expert testimony as to whether, considering the condition and situation of the vessel, and all the circumstances, goods, for whose loss from negligent stowing and conveying recovery is sought, could have been broken to pieces in the hold, or washed out of the hold, if they had been stowed therein as testified to. New England Glass Co. V. Lovell, 7 Cush. 319 (inadmissible because not subject for expert testimony). Whether it was the act of a careful and prudent man to leave a horse on the street unhitched. Stowe v. Bishop, 58 Vt. 498, 56 Am. Rep. 569, 3 Atl. 494 (held properly excluded as not being matter for expert testimony). Expert testimony as to whether a person could have been injured unless he was careless. Buxton v. Somerset Potters' Works, 121 Mass. 446. Expert testimony as to whether defective work and condition of ma- chinery set up and examined by witness was due to defective con- struction or want of skill in its management. Chandler v. Thomp- son, 30 Fed. 38 (competent). Whether, at the distance at which a person was standing, a street car could have passed safely. McDermott v. Third Ave. R. Co. 44 Hun, 107. Testimony that goods lost through collision of steamboat and flat ferry boat could have been saved if the steamboat had returned to the 310 BEIEF ON FACTS. flat boat's assistance when requested. Otis v. Thorn, 23 Ala. 469, 58 Am. Dec. 303, with note. Expert testimony as to whether blast covered in manner prescribed by city ordinance could throw portions of rock a certain distance. Koster v. ISToonan, 8 Daly, 231 (admitted). How much a given field will produce of a certain kind of grain. Sickles V. Orould, 51 How. Pr. 22 (competent if witness qualified to speak as expert). Question as to whether or not piles should not be driven in so deeply that they could not be pressed out by ordinary use of bridge. Cooper V. Mills County, 69 Iowa, 350, 28 N. W. 633 (admission held error without prejudice, as it is matter of common knowledge that piles should be so driven in). 2. Nonexpert testimony. A nonexpert witness who knows the facts personally may give his opinion as to the cause of a casualty or injury after stating the facts upon which his opinion is based, or if the mat- ter is one with which he is sufficiently acquainted, but which cannot be specifically described.* iGulf, C. & S. F. R. Co. T. John, 9 Tex. Civ. App. 342, 29 S. W. 558, and cases cited; Galveston, H. & S. A. E. Co. v. Daniels, 1 Tex. Civ. App. 695, 20 S. W. 955; Gulf, C. & S. F. E. Co. v. Locker, 78 Tex. 279, 14 S. W. 611; Ethridge v. San Antonio & A. P. R. Co. — Tex. Civ. App. — , 39 S. W. 204; Gulf, C. & S. F. R. Co. v. Rich- ards, 83 Tex. 203, 18 S. W. 611. See also cases in note 1 to § 1, d, 1. 3. Direction of blow, force, or fluid. A witness who observed the traces left by a physical force or movement may state the direction in which the force appeared to have been applied.* 1 State V. Rainsbarger, 71 Iowa, 746, 31 N. W. 865 (murder. Not error to allow witness to testify that the buggy of the deceased appeared to have been broken by force applied at the top of the wheel; and by pulling the shaft outward by force applied at the forward end; and that the buggy was strong enough to carry two ordinary sized men without breaking) ; Com. v. Sturtivant, 117 Mass. 122, 132, 19 Am. Rep. 401 (a witness upon the trial of an indictment for murder, who is familiar with blood, and examined with a lens a blood stain upon a coat when it was fresh, is competent to state that the appearance then indicated the direction from whicli it came. CAUSE. 311 and that it came from below upward, although he nas never ex- perimented with blood or other fluid in this respect) ; Hopt v. Utah, 120 U. S. 430, 30 L. ed. 708, 7 Sup. Ct. Eep. 614 (direction of blow by which fatal wound on head was caused. This does not require expert testimony ) . These rulings are well supported by the principle which allows testimony to a collective fact, the knowledge of which is derived from minutise (see Cabe, § 6). Thus considered, they are not inconsistent with §§ 1, b, 1, d (3), this title. On the Trial of Linsday (Syracuse, 1874) 63 N. Y. 143, affirming 5 Hun, 104, 67 Barb. 548, the people offered to show, by the opinion of a physician, that the fracture in the skull which an accomplice of the accused testified the accused caused with an ax, was pro- duced by a righthand blow, such as the accused always struck, while the accomplice it was claimed always struck a left-hand blow with an ax held in both hands. Held, not admissible in the absence of expert proof of the situation of the deceased when the blow was struck. 4. Other similar occurrences or injuries. Evidence of other occurrences or injuries prior or subsequent to, or at or about the same time as, the occurrence or injury un- der investigation, caused by the same or a similar machine, forces, blows, etc., as is alleged to be the cause of the occurrence or injury in question, is admissible as tending to shovs^ that that occurrence or injury was so caused,'' provided, however, that if the inquiry be not limited to the same time * there must be evi- dence that the condition meanwhile continued the same,' and if not limited to the same place, there must be evidence of sim- ilarity of condition.* 1 For general instances of the application of this rule, see Scott v. New Orleans, 21 C. C. A. 402, 41 U. S. App. 498, 75 Fed. 373; Richmond R. & Electric Co. v. Bowles, 92 Va. 738, 24 S. E. 388; Rogers v. New York & B. Bridge, 11 App. Div. 141, 42 N. Y. Supp. 1046; Shea V. Glendale Elastic Fabrics Co. 162 Mass. 463, 38 N. E. 1123. Compare, however, Willett v. St. Albans, 69 Vt. 330, 38 Atl. 72 (that other cases of sickness had been caused by a nuisance is admissible in an action for damages on account thereof in which the principal injury alleged is sickness of plaintiff's wife caused thereby). Thu^, in the case of a fire shown to have been caused by some passing locomotive engine, which cannot be fully identified, evidence of other fires kindled by different locomotives prior or subsequent to. 312 BRIEF OJT TACTS. or about the same time, is admissible. Gulf, C. & S. F. E. Co. v. Johnson, 4 C. C. A. 447, 10 U. S. App. 629, 54 Fed. 474; Louisville, N. A. & C. R. Co. V. Lange, 13 Ind. App. 337, 41 N. E. 609; Dun- ning V. Maine C. R. Co. 91 Me. 87, 39 Atl. 352, and cases cited; Thatcher v. Maine C. E. Co. 85 Me. 502, 27 Atl. 519; Campbell v. Missouri P. E. Co. 121 Mo. 340, 25 L.E.A. 175, 25 S. W. 936; Van Steuben v. Central E. Co. 178 Pa. 367, 34 L.E.A. 577, 35 Atl. 992; Galveston, H. & S. A. E. Co. v. Hertzig, 3 Tex. Civ. App. 296, 22 S. W. 1013; New York, P. & N. E. Co. v. Tliomas, 92 Va. 606, 24 S. E. 264. But where the injury in question is shown to have been caused, or, in the nature of the case, could only have been caused, by sparks from an engine vehich is knoivn and identified, or from one or the other of two locomotives, the evidence as to fires set by the particular engine is proper. Lake Erie & W. E. Co. v. Gould, 18 Ind. App. 275, 47 N. E. 941; Brown v. Benson, 101 Ga. 753, 29 S. E. 215, and cases cited; Baltimore & O. S. W. E. Co. v. Tripp, 175 111. 251, 51 N. E. 833; Lake Side & M. E. Co. v. Kelly, 10 Ohio C. C. 322, 6 Ohio C. D. 555; Thomas v. New York, C. & St. L. R. Co. 182 Pa. 538, 38 Atl. 413. But it should be confined to evidence of fires kindled by the particular engine said to have caused the fire in controversy. First Nat. Bank v. Lake Erie & W. E. Co. 174 111. 36, 50 N. E. 1023, and cases cited. But the fact that other fires had occurred, without proof that they were caused by the railway, is not competent. St. Louis & S. F. E. Co. V. Jones, 59 Ark. 105, 26 S. W. 595; Tribette v. Illinois C. E. Co. 71 Miss. 212, 13 So. 899. 3 According to Martz v. Cincinnati, H. & D. R. Co. 12 Ohio C. C. 144, 5 Ohio C. D. 451, where no engine has been identified as the cause of the fire, the plaintiff may offer testimony showing the condition of the locomotives on defendant's road, and their action as to the emission of sparks near the vicinity where the fire in question was started, and about the time of the fire, either a, short time before or after, and the witness will not be confined to a day or two, but will be allowed to testify to a reasonable limit, and a month pre- ceding the fire would not exceed that limit. 3 Dillingham v. Whitaker, — Tex. Civ. App. — , 25 S. W. 723 ; Matthews V. Missouri P. R. Co. 142 Mo. 645, 44 S. W. 802; Menominee Eiver Sash & Door Co. v. Milwaukee & N. E. Co. 91 Wis. 447, 65 N. W. 176; Hunt v. Dubuque, 96 Iowa, 314, 65 N. W. 319; Schmidt v. Coney Island & B. E. Co. 26 App. Div. 391, 49 N. Y. Supp. 777; Louisville & N. R. Co. v. Malone, 109 Ala. 509, 20 So. 33. In Birmingham v. Starr, 112 Ala. 98, 20 So. 424, testimony that the witness had known other persons to be injured at the point in a sidewalk at which plaintiff^ sustained her injuries was held inad- missible, as was also like testimony of another witness, which failed CAUSE. 313 to show how long previously the accident had happened, or whether the conditions were the same; while testimony of a third witness that he had been injured at the same time and place as plaintiff Was admitted. 4 Brady v. Manhattan K. Co. 127 N. Y. 46, 27 N. E. 368. The presumption that the same defective condition of a ma- chine continued ' does not avail to let in evidence of other in- juries occurring after a considerable lapse of time, un] !ss the party shows either that the defect was one of construc^lion, or that the structure was in the same condition as to nonrepair.* 1 For cases to the rule as to the presumption of continuance of condition, etc., see note to Re Huss, 12 L.R.A. 620. 2 Collins V. New York C. & H. R. R. Co. 109 N. Y. 243, 16 N. B. 50. 5. Suggestion of another cause. a. In general. — To negative the inference that the effect was due to the cause to which it is attributed, the adverse party may show that it might have proceeded from some other cause,'' and for this purpose may prove the results of experiments made with such other cause.* iQuinn v. Higgins, 63 Wis. 664, 53 Am. Rep. 305, 24 N. W. 482 (mal- practice in setting broken limb. Held, error to exclude question, though leading, whether nonunion after fracture might talce place under the best of treatment) ; Chandler v. Thompson, 30 Fed. 38 (whether defective work of mill was due, as alleged, to defective construction, or to unskilful use) ; Creek v. McManus, 17 Mont. 445, 43 Pac. 497 (action upon injunction bond; proper to show that damage was caused otherwise than by injunction), s. p. State v. Morgan, 95 N. C. 641 (causes of death without leaving external mark) ; Rowell v. Lowell, 11 Gray, 420 (injury to person, without leaving external manifestation) ; Moyer v. New York C. & H. R. R. Co. 98 N. Y. 645 (action for injury by current upon river bank). Otherwise as to evidence of a cause not raised by the issues. Reizen- stein v. Clark, 104 Iowa, 287, 73 N. W. 588. 2 Lincoln v. Taunton Copper Mfg. Co. 9 Allen, 181, 192. Such evidence may also be competent as tending to reduce the damages for which the defendant is liable. Doyle v. New York Eye & Ear Infirmary, 80 N. Y. 631, 633. In Beckett v. Northwestern Masonic Aid Asso. 67 Minn. 298, 69 N. W. 923, an action on a life insurance policy, it was held competent, in rebuttal of a defense of suicide, to prove experiments in dis- 314 BEIEF OlSr FACTS. charging the same revolver found in the hand of the deceased loaded with similar cartridges, noting at what distance from the muzzle the object fired at was found to be singed or powder burned. h. Cross-examination.— For the purpose of controverting the opinion of a "witness as to the cause, inferred from certain ap- pearances, proved to exist, he may be asked on cross-examina- tion -what he would think if, under similar appearances, the existence of another specified cause should be also proved ; ^ or what would have been the indications if another specified cause had operated.^ 1 Com. V. Mullins, 2 Allen, 295 (cause of death). «Erickson v. Smith, 2 Abb. App. Dec. 64, 38 How. Pr. 454 (cause of death). c. Rebutting evidence of other cause. — ^After evidence show- ing another possible cause has been given, rebutting evidence is then competent to show the condition of what is thus claimed to have been the cause, as negativing that claim.^ But if the in- quiry is not limited to the same time, there must be evidence that the condition meanwhile continued the same.* 1 Collins V. New York C. & H. E. R. Co. 23 N. Y. Week. Kg. 154 (de- fendants being sued for firing plaintiff's building, having claimed that an engine, of another company was the cause, evidence of the good condition of that engine becomes competent). Z.Collins V. New York C. & H. E. R. Co. 109 N. Y. 243, 16 N. E. 50, re- versing the above decision for error in not applying this qualification, see also § 4, supra. 6. Demonstrative evidence. On the question as to the cause ot an injury or occurrence, it is proper to exhibit to the jury any physical object which tends to establish that fact.* 1 As, for instance, the clothing worn by one when injured, as tending to show which of two conflicting theories as to the cause of the accident is correct. Senn v. Southern E. Co. 108 Mo. 142, 18 S. W. 1007. Or the sparks shown to have come from the engine claimed to have caused the fire sued for. Cleveland, C. C. & St. L. E. Co. v. Mc- Kelvey, 12 Ohio C. C. 426, 5 Ohio C. D. 561. CAUSE. 315 So, on the issue whether the breaking of a raft line furnished to plain- tiffs by defendant was caused by its decayed condition, a piece of the line which shows the break is admissible in evidence. Steven- son V. Michigan Log Towing Co. 103 Mich. 412, 61 N. W. S36. Otherwise, where the object merely is an appeal to the sympathies and feelings of the jury. Louisville & N. E. Co. v. Pearson, 97 Ala. 211, 12 So. 176. 7. Declarations as part of res gestae. Declarations of a person as to the cause of his injury, made immediately after the occurrence and in connection with it, are admissible as part of the res gestae to show such cause/ even though they are in his own favor.^ JChielinsky v. Hoopes & T. Co. 1 Marv. (Del.) 273, 40 Atl. 1127; Louis- ville, E. & St. L. R. Co. V. Berry, 2 Ind. App. 427, 28 N. E. 714; Louisville & N. R. Co. v. Earl, 94 Ky. 368, 22 S. W. 607; Yazoo & M. Valley R. Co. v. Jones, 73 Miss. 229, 19 So. 91; Helman v. Pitts- burg, C. C. & St. L. R. Co. 58 Ohio St. 400, 41 L.R.A. 860, 50 N. E. 986. 2 Travelers' Ins. Co. v. Mosley, 8 Wall. 397, 19 L. ed. 427 (an extreme case in favor of admissibility) ; Washington & G. R. Co. v. McLane, 11 App. D. C. 220, and cases cited; O'Keefe v. Eighth Ave. R. Co. 33 App. Div. 324, 53 N. Y. Supp. 940; Means v. Carolina C. R. Co. 124 N. C. 574, 45 L.R.A. 164, 32 S. E. 960; Sullivan v. Salt Lake City, 13 Utah, 122, 44 Pac. 1039; North America Acci. Asso. v. Woodson, 12 C. C. A. 392, 24 U. S. App. 364, 64 Fed. 689; Heckle v. Southern P. Co. 123 Cal. 441, 56 Pac. 56; Keyes v. Cedar Falls, 107 Iowa, 509, 78 N. W. 227; International & G. N. R. Co. v. Ander- son, 82 Tex. 516, 17 S. W. 1039. So held, even though they are not spontaneous, but are in response to inquiries. Springfield Consol. R. Co. v. Heffner, 175 111. 634, 51 N. E. 884; Stevens v. Walpole, 76 Mo. App. 213; Houston & T. C. R. Co. V. Loeffler, — Tex. Civ. App. — , 51 S. W. 536. Otherwise, however, whether against or in favor of the declarant, where they are mere narratives of past occurrences. National Masonic Acci. Asso. V. Shryock, 20 C. C. A. 3, 36 U. S. App. 658, 73 Fed. 774; Louisville & N. R. Co. v. Pearson, 97 Ala. 211, 12 So. 176; Ft. Smith Oil Co. v. Slover, 58 Ark. 168, 24 S. W. 106; Lissak v. Crocker Estate Co. 119 Cal. 442, 51 Pac. 688, and cases cited; Elec- tric R. Co. V. Carson, 98 Ga. 652, 27 S. E. 156; Atchison, T. & S. F. R. Co. v. Consolidated Cattle Co. 59 Kan. Ill, 52 Pac. 71; Rose- berry V. Newport News & M. Valley R. Co. 19 Ky. L. Rep. 194, 39 S. W. 407; Eastman v. Boston & M. R. Co. 165 Mass. 342, 43 N. E. 115; Norfolk & C. R. Co. v. Suffolk Lumber Co. 92 Va. 413, 23 S. E. 737. 316 BRIEF ON FACTS. 8. Admissions. The admissions of a party as to the cause of an injury are evidence against him.^ 1 Oliver v. Louisville & N. E. Co. 43 La. Ann. 804, 9 So. 431. Within this rule the certificate of a physician in the proof of death of an insured binds the beneficiary as an admission as to the cause of death. Redmond v. Industrial Ben. Asso. 78 Hun, 101, 28 N. Y. Supp. 1075. 9. Findings of coroner to show cause of death. The question of the admissibility of the finding of a coroner or the verdict of his jury to shov? cause of death frequently arises in actions upon policies of life insurance, -where the defendant company introduces the defense of suicide. There is consid- erable diversity of decision upon the subject, the courts of some states holding that such evidence is admissible,* v^hile those of othei- states reject it,^ the former basing their decision upon the ancient rule of the common law of England.* Attempt has also been made in several instances to introduce the coroner's finding in actions for negligently causing the death of a person, but such evidence has invariably been re- jected.* In case of a prosecution for homicide it has been held that such evidence is not competent for any purpose,* though in other cases it has been held admissible to prove the fact of death.® In an equity action to set aside a will it was held not error to admit the verdict of a coroner's jury for the purpose of showing, prima facie, that he committed suicide.'' iMetzradt v. Modern Brotherhood, 112 Iowa, 522, 84 N. W. 498; Grand Lodge I. 0. M. A. v. Wieting, 168 111. 408, 61 Am. St. Rep. 123, 48 N. E. 59 citing and follovfing United States L. Ins. Co. v. Vocke (United States L. Ins. Co. v. Kielgast), 129 111. 557, 6 L.R.A. 65, 22 N. E. 467; Supreme Lodge K. H. v. Fletcher, 78 Miss. 377, 28 So. 872, 29 So. 523. 2 Germania L. Ins. Co. v. Ross Lewin, 24 Colo. 43, 65 Am. St. Rep. 215, 51 Pac. 488; Union Cent. L. Ins. Co. v. Hollowell, 14 Ind. App. 611, 43 N. E. 277; ^tna L. Ins. Co. v. Kaiser, 115 Ky. 539, 74 S. W. 203; Cox. v. Royal Tribe of Joseph, 42 Or. 365, 60 L.R.A. 620, 95 Am. St. Rep. 752, 71 Pac. 73; ^tna L. Ins. Co. v. Milward, 118 Ky. 716, 68 L.R.A. 285, 82 S. W. 364, 4 Ann. Cas. 1092. 3 See note to Toomes v. Etherington, 1 Wms' Saund. 362. CHAUA.CTEE. 317 4 Chicago, M. & St. P. E. Co. v. Staff, 46 111. App. 499; Cox v. Chicago & N. W. E. Co. 92 111. App. 15; State ex rel. Grice v. Cecil County, 54 Md. 426. s Com. V. Ryan, 134 Mass. 223. 6 State V. Parker, 7 La. Ann. 83 ; State v. Johnson, 10 La. Ann. 457. 7Pyle V. Pyle, 158 111. 289, 41 N. E. 999. For a full review of the cases on admissibility of finding of coroner to show cause of death, see note in 68 L.K.A. 285. CHAEACTEB, I. EEPUTATtON. 1. Good character, when competent. 2. How proved. a. General reputation. b. Particular facts. c. Evidence referring to time subsequent to the fact. d. Competency of witness. II. Competency and Skili.. 3. Direct testimony. 4. General reputation. 5. Single instances. 6. Intoxication. 7. Inspection of witness. See also Cake; Habits. 1. Good character, when competent. Evidence of general reputation of a person's good character to strengthen the presumption of good character ^ is not admis- sible in civil actions,^ even though a criminal act be directly involved,' unless character is put in issue by the pleadings,* or ■evidence of general bad character has been received against him.* * For the rule as to competency of such evidence in criminal prosecutions to strengthen the presumption of innocence and aa tending to negative guilt, and its application, see Criminal Trial Brief; also notes in 318 BRIEF ON FACTS. 20 L.II.A. 609; 2 L.R.A.(N.S.) 102; 2 L.E.A.(N.S.) 553; and 3 L.R.A.(N.S.) 352. For right of witness to testify to character from personal knowledge, see note in 22 L.R.A.(N.S.) 650. 2 Jackson v. Martin, — Tex. Civ. App. — , 41 S. W. 837 (action for breach of contract) ; Timmony v. Bums, — Tex. Civ. App. — , 42 S. W. 133 (trespass to try title); Sullivan v. Sullivan, 92 Me. 84, 42 Atl. 230 (divorce for gross and confirmed habits of intoxication); O'Neill V. Register, 75 Md. 425, 23 Atl. 960 (action by fireman for damages for alleged wrongful dismissal) ; Stoppert v. Nierle, 45 Neb. 105, 63 N. W. 382 (bastardy case) ; Powers v. Armstrong, 62 Ark. 267, 35 S. W. 228 (replevin; charge of fraud in issue) ; Vance v. Richardson, 110 Cal. 414, 42 Pac. 909 (assault and battery) ; Vansickle v. Shenk, 150 Ind. 413, 50 N. E. 381, and cases cited (charge of fraud). Compare Bowerman v. Bowerman, 76 Hun, 46, 27 N. Y. Supp. 579 (an action to set aside deed executed in set- tlement of partnership account on the ground that the statement of account by the grantor was false and fraudulent, in which it was held that evidence of the grantee's reputation for honesty, in- tegrity, and general reputation was admissible) ; Fire Asso. of Phila- delphia V. Jones, — Tex. Civ. App. — , 40 S. W. 44 (that plaintiff in an action on an insurance policy in which defendant pleads fraudulent overvaluation of property, and that fire was caused by him, may prove reputation for truth, honesty, and fair dealing, though not otherwise impeached) ; Munkers v. Farmers' & M. Ins. Co. 30 Or. 211, 46 Pac. 850 (that plaintiff in an action on an in- surance policy cannot in the first instance give evidence of good character for honest and fair dealing and as a peaceful and law- abiding citizen because an issue in the case is whether or not the fire was fraudulently caused by him). 3 Pratt V. Andrews, 4 N. Y. 493 ( criminal conversation ) ; Approved in Stone V. Hawkeye Ins. Co. 68 Iowa, 737, 56 Am. Rep. 870, 28 N. W. 47 (arson as defense to action on insurance policy; citing cases from other jurisdictions) ; Fahey v. Crotty, 63 Mich. 383, 29 N. W. 876 (action for assault and battery) ; Diers v. Mallon, 46 Neb. 121, 64 N. W. 722 (action for false imprisonment; charge of mur- der) ; Geary v. Stevenson, 169 Mass. 23, 47 N. E. 508, and cases cited (action for false imprisonment; charge of burglary) ; Blakeslee v. Hughes, 50 Ohio St. 490, 34 N. E. 793 (libel) ; Pokriefka v. Mackurat, 91 Mich. 399, 51 N. W. 1059 (assault and battery) ; Vawter v. Hultz, 112 Mo. 633, 20 S. W. 689 (civil action by wife for killing her hus- band), s. p., Bates v. Barber, 58 Mass. 107; Continental Ins. Co. V. Jachnichen, 110 Ind. 59, 59 Am. Rep. 194, 10 N. E. 636; Simpson V. Westenberger, 28 Kan. 756, 42 Am. Rep. 195 (replevin of mort- gaged property attached, where mortgage claimed to be fraudulent ) . For the application of this rule in various particular actions, see 16 Cent L. J. 202, 25 Cent. L. J. 148. CHARACTEE. 319 *Fulkerson v. Murdock, 53 Mo. App. 151 (slander); Ferguson v. Moore, 98 Tenn. 342, 39 S. W. 341 (seduction) ; Cox v. Strickland, 101 Ga. 482, 28 S. E. 655 (libel) ; Stafford v. Morning Journal Asso. 142 N. Y. 598, 37 N. E. 625 (libel); Graves v. Gilchrist, 29 N. Y. S. E. 638, 9 N". Y. Supp. 88 (slander); Nettles v. Somervell, 6 Tex. Civ. App. 627, 25 S. W. 658 (libel) ; Smith v. Hall, 69 Conn. 651, 38 Atl. 386 (breach of marriage promise) ; Eoot v. Davis, 10 Mont. 228, 25 Pac. 105. Nor is it rendered inadmissible by the fact that the witness testifies on cross-examination that he did not move to the place where plain- tiff lived until shortly after publication of the challenged libel, and that all he "knew of plaintiff's reputation was learned after he moved there; but tlie weight and value of such testimony are for the jury. Nettles V. Somervell, 6 Tex. Civ. App. 627, 25 S. W. 658. 6 German American Mut. Life Asso. v. Farley, 102 Ga. 720, 29 S. E. 615; Post Pub. Co. v. Hallam, 8 C. C. A. 201, 16 U. S. App. 613, 59 Fed. 530; Loomis v. Stuart, — Tex. Civ. App. — , 24 S. W. 1078; Jones V. Layman, 123 Ind. 569, 24 N. E. 363. But evidence of attempted subornation of witnesses by plaintiff does not let in evidence of good character on rebuttal. Fvilkerson v. Mur- dock, 53 Mo. App. 151. Nor does evidence that plaintiff suing for personal injuries might have simulated injuries complained of by him admit evidence of character for honesty. Austin & N. W. K. Co. v. McElmurry, — Tex. Civ. App. — , 33 S. W. 249. Nor is evidence of good character admissible or competent where the only matter disclosed derogatory to the party was brought out on cross-examination. Mack v. Porter, 18 C. C. A. 527, 25 U. S. App. 595, 72 Fed. 236; Munroe v. Godkin, 111 Mich. 183, 69 N. W. 244. Plaintiff in a libel suit cannot introduce evidence of good character to rebut evidence of the truth of the charges, which are not criminal in their nature. Howland v. George F. Blake Mfg. Co. 156 Mass. •543, 31 N. E. 656. And in Hall v. Elgin Dairy Co. 15 Wash. 542, 46 Pac. 1049, evidence of specific instances of misconduct on the part of plaintiff suing for libel in stating that defendants had dis- charged him on his own confession of having wrongfully converted money collected for defendants, was held not enough to authorize evidence by plaintiff to prove his general good reputation. I. EEPUTATIOIir. Nor can a physician and surgeon adduce proof of good character to rebut a charge of negligence. Smith v. Stump, 12 Ind. App. 359, 40 N. E. 279. The reputation of a party to a civil action cannot be attacked unless the opposite party gives evidence tending to support it or it is 320 BRIEF ON FACTS. involved in the nature of the action. Stewart v. Watson, 133 Mo. App. 44, 112 S. W. 762. -A defendant who, sued for damages for a homicide, alleges that the act was done in self-defense, cannot show his own good character. Mor- gan V. Barnhill, 55 C. C. A. 1, 118 Fed. 24. 2. How proved. a. General reputation. — Character, in the sense of reputa- tion, may be proved by general reputation.* JGolder v. Lund, 50 Neb. 867, 70 N. W. 379 (but not by 'opinion of wit- nesses based on their personal observation) ; Houston & T. C. R. Co. V. Kitter, 16 Tex. Civ. App. 482, 41 S. W. 753; Georgia v. Bond, 114 Mich. 196, 72 N. W. 232; Adams v. Salina, 58 Kan. 246, 48 Pac. 918; Thibault v. Sessions, 101 Mich. 279, 59 N. W. 624; Stewart V. Smith, 92 Wis. 76, 65 N. W. 736, and cases cited; Indianapolis Journal Newspaper Co. v. Pugh, 6 Ind. App. 510, 33 N. E. 991. Com- pare Norris v. Warner, 59 111. App. 300 (that evidence that a dog was vicious toward other dogs is inadmissible in an action for in- juries from his biting a person) ; Short v. Bohle, 64 Mo. App. 242 (that evidence of the reputation of a horse in a livery stable among the drivers who drove it is admissible -to show notice to the pro- prietor of the stable that the horse was dangerous and unmanageable, although it is not admissible for the purpose of showing the char- acter of the horse ) . But evidence of the unchastity of the complainant in bastardy proceed- ings, outside of the period of gestation, whether it relates to general reputation or specific acts, is inadmissible. Davison v. Cruse, 47 Neb. 829, 66 N. W. 823. But that the inquiry must be limited to the trait of character under in- vestigation, see: Indianapolis Journal Newspaper Co. v. Pugh, 6 Ind. App. 510, 33 N. E. 991 (that a question in respect to plaintiff's ■character, as to whether the witness was acquainted on a, certain •occasion with her reputation, and as to whether such reputation was good or bad, is incompetent as not confining the investigation to plaintiff's general reputation for morality, virtue, and chastity) ; Kemsen v. Bryant, 36 App. Div. 240, 56 N. Y. Supp. 728 (that evi- dence as to the popularity or unpopularity in a community, of plain- tiff in an action for libel in charging that he made himself notorious and hated, is inadmissible upon the issue as to his general charac- ter) ; Evans v. Evans, 93 Ky. 510, 20 S. W. 605 (that evidence of the general reputation of the wife for unchastity is inadmissible in a suit brought by her for divorce and alimony, in which she is charged by defendant with adultery, since her general character is not in issue). CHABACTEE. 321 But evidence of the character of plaintiflf in an action for libel need not be restricted to his general reputation in respect to the trait of character involved in the defamatory charge; but his general reputation, either as a man of moral worth, or in the particular relation, is admissible. Sickra v. Small, 87 Me. 493, 33 Atl. 9. And in Sanford v. Rowley, 93 Mich. 119, 52 N. W. 1119, a libel suit where defendant pleaded the truth as justification of a publica- tion charging plaintiff with political perjury, and that he would lie to defend himself against such charges, it was held that he had the right to show, not only plaintiff's general reputation for truth and veracity, but also that plaintiff was generally regarded in the community as a person who in political matters was unworthy of belief. Whether evidence of the general reputation of a house, the owner of which is being prosecuted for keeping a disorderly house, a house of "ill fame," etc., is admissible as tending to show the alleged character of the house, is contested. That it is not, see, for instance, Wooster v. State, 55 Ala. 217 (where the reason for its exclusion is clearly stated); State v. Lee, 80 Iowa, 75, 45 N. W. 545; People V. Mauch, 24 How. Pr. 276; State v. Plant, 67 Vt. 454, 32 Atl. 237; Nelson v. Territory, 5 Okla. 512, 49 Pac. 920. And see Barker v. Com. 90 Va. 820, 20 S. E. 776 (altlnough an action for seduction, the same rule was applied where the defendant sought to show the character of the house in which the prosecutrix lived). In People ex rel. Eakins v. Roosevelt, 16 App. Div. 354, 44 N. Y. Supp. 1003, however, while it was said that evidence of the general reputation of houses as disorderly houses was not admissible to prove their character, it was held admissible on the question whether a police captain by a reasonably diligent prosecution of his duties in the precinct could have learned of the character and reputation of the houses, where the fact that they were disorderly is established. But that it is admissible, see Egan v. Gordon, 65 Minn. 505, 68 N. W. 103; Sprague v. State, — Tex. Crim. Rep. — , 44 S. W. 837. See also cases in note to Beard v. State, 4 L.R.A. 675. It is so by express statute in some states. See, for instance, Shaffer v. State, 87 Md. 124, 39 Atl. 313; State v. Morgan, 40 Conn. 44. That general reputation of frequenters and inmates of a house alleged to be a disorderly house, etc., is admissible to prove its character, see Betts v. State, 93 Ind. 375; Com. v. Clark, 145 Mass. 251, 13 N. E. 888; Roop v. State, 58 N. J. L. 479, 34 Atl. 749; Sprague v. State, — Tex. Crim. Rep. — , 44 S. W. 837; People v. Russell, 110 Mich. 46, 67 N. W. 1099. Witness may testify that a person's reputation for truth and veracity is good, although it has never been the subject of discussion. Hand V. Miller, 58 App. Div. 126, 68 N. Y. Supp. 531. Abb. Facts — ^21. o22 BEIEF ON FACTS, h. Particular facts. — Particular facts are not competent tO' prove the reputation of a party or witness to be either good or bad.' iLord V. Mobile, 113 Ala. 360, 21 So. 366; Cox v. Strickland, 101 Ga. 482, 28 S. E. 655; State v. McDonough, 104 Iowa, 6, 73 N. W. 357; Miller v. Curtis, 158 Mass. 127, 32 N. E. 1039; Dennis v. Johnson,. 47 Minn. 56, 49 N. W. 383; State v. Campbell, 20 Nev. 122, 17 Pac. 620; Meyer v. Suburban Home Go. 25 Misc. 686, 55 N. Y. Supp. 566; Nixon V. McKinney, 105 N. C. 23, 11 S. E. 154; Wolf v. Perry- man, 82 Tex. 112, 17 S. W. 772; Landa v. Obert, 5 Tex. Civ. App. 620, 25 S. W. 342; Davis v. State, 36 Tex. Crim. Rep. 548, 38 S. W. 174. Compare Egan v. Gordon, 65 Minn. 505, 68 N. W. 103 (evi- dence of specific acts on leased premises, tending to show that the- place was a house of ill-fame, was held competent to prove the char- acter of the house, although the lessor, who is alleged to have con- sented to such use, was not present at the time ) . In libel for charging that plaintiff had been "in more rows than any other one man" in the county, evidence of instances of quarrels and disturbances in which he had been engaged is admissible for de- fendant. Eatcliffe v. Louisville Courier Journal Co. 99 Ky. 416, 36 S. W. 177. And in an action against a city for liability for the death of a, person killed by a mob, under . a statute providing that in all such actions the "reputation and conduct" of the deceased may be given in evi- dence in mitigation of damages, any misconduct or crime committed by the deceased within a reasonable time before the killing, which might have influenced the mob which committed the act, or which would aff'ect the val'ae of his life to the next of kin, is admissible. Adams v. Salina, 58 Kan. 246, 48 Pac. 918. For other cases as to evidence of specific instances to prove character, see note in 14 L.R.A.(N.S.) 689. c. Evideiice referring to time subsequent to the fact. — Evi- dence upon the issue of a party's character is inadmissible where it refers to a time subsequent to the act in issue which involves his character.' 1 Landa v. Obert, 5 Tex. Civ. App. 620, 25 S. W. 342. But evidence that leased premises were used as a house of ill fame after execution of a lease is admissible to show condition of affairs at and before the execution of the lease, where the lessee occupied and used the premises in the same general way before as well as after the lease was executed, and it is alleged that the lessor knew of, and consented to, such use at the execution of the lease. Egan v. Gordon, 65 Minn. 505, 68 N. W. 103. OHAEACTEE. 323 And in an action for slander in calling a married woman a whore evi- dence of acta of adultery after the speaking of the words and after the beginning of the suit is admissible, where proof has been intro- duced designed to show that she was guilty of adultery before such time. Claypool v. Claypool, 65 111. App. 446. d. Competency of witness. — A witness who had long known the deceased is competent to testify, in a prosecution for homi- cide, as to whether the latter's character was dangerous or otherwise.^ But a witness cannot testify to the reputation of one deceased where he did not know his reputation in his life- time, but acquired knowledge concerning it after his death.^ Where proof of reputation is admissible, the American courts- are almost unanimous in laying down the familiar rule that it is the general reputation of the party in the community in which he lives that is to be proved, and hence a witness can- not testify to character from his own personal knowledge only.* 1 Turner v. State, 70 Ga. 765. 2 State V. Kenyon, 18 R. I. 217, 26 Atl. 199; Gordon v. State, 140 Ala. 29, 36 So. 1009; Skaggs v. State, 31 Tex. Grim. Eep. 563, 21 S. W. 257. 3 People V. Van Gaasbeck, 189 N. Y. 408, 22 L.E.A.(N.S.) 650, 82 N. E. 718, 12 Ann. Gas. 745; People v. Turney, 124 Mich. 542, S3 N. W. 273; Galveston, H. & S. A. R. Co. v. Burnett, — Tex. Civ. App. — , 42 S. W. 314; State v. Stewart, — Del. — , 67 Atl. 786; People V. Ward, 134 Cal. 301, 66 Pac. 372; French v. Millard, 2 Ohio St. 44; Bucklin v. State, 20 Ohio, 18; Carp v. Queen Ins. Co. 203 Mo. 295, 101 S. W. 78; Sargent v. Wilson, 59 N. H. 396; United States V. Vansickle, 2 McLean, 221, Fed. Cas. No. 16,609. For other cases, see note in 22 L.R.A.(N.S.) 650. For an elaborate note on right of witness to testify to character from personal knowledge, see 22 L.R.A. (N.S.) 650. II. Competency and Skill. 3. Direct testimony. A witness who has had adequate opportunities of observation may be asked whether a person appeared to be competent to his place.* But the question should be so framed as to direct the witnesses attention to his capacity to perform the particular service re- quired of him.* 324 BRIEF ON FACTS. 1 Gahagan v. Boston & L. E. Co. 1 Allen, 187, 79 Am. Dec. 724 ; Wheeler v. Delaware & H. Canal Co. 20 N. Y. Week. Dig. 301, Affirmed without opinion in 99 N. Y. 616 (engineer was asked how fireman performed his duties, and whether he understood the working of the engine; and answered: "He always handled her well while he was with me; that is, when I asked him to move her one way or another he done so." Held, proper; because the skilfulness of a, mechanic is a col- lective fact); Lewis v. Emery, 108 Mich. 641, 66 N. W. 569 (that a foreman and head sawyer in sawmill may give their opinion as to whether a setter in such mill, whom they had seen act as head sawyer at times, was a competent head sawyer, in an action for personal injuries to an employee alleged to have been caused by the incompetency of such setter while acting as head sawyer) ; Mexican Nat. R. Co. V. Musette, 7 Tex. Civ. App. 169, 24 S. W. 520, affirmed in 86 Tex. 708, 24 L.R.A. 642, 26 S. W. 1075 (that a trainmaster of a railroad company, having the general supervision of trainmen and en- gineers, and knowing the reputation of a particular engineer from actual reports and notices that come into his possession, is competent to give evidence concerning his general reputation for care and cau- tion). A sufficient predicate for an opinion as to the competency of a person to be superintendent of a mine is laid by the testimony of a witness that he has been engaged in mining for about two years and a huff, that he is familiar with the kind of work the superintendent was engaged in, had known him four and a half years, and had often seen him work, and that his duties were, together with his laborers, to take down from the roof of the entry, and load, slate or rock in the mine. Buckalew v. Tennessee Coal, I. & R. Co. 112 Ala. 146, 20 So. 606. 2 Thus, the inquiry should be directed to his capacity to perform the par- ticular service required of him, and not as to his being bright, intelli- gent, and a ready, fluent speaker. Latremouille v. Bennington & E. R. Co. 63 Vt. 336, 22 Atl. 656. 4. General reputation. General reputation for care and skill is not competent to show disposition or habitual character.* 1 Baldwin v. Western R. Corp. 4 Gray, 333 (careless driver); Park v. New York C. & H. R. R. Co. 155 N. Y. 215, 49 N. E. 674; Marrinan V. New York C. & H. E. E. Co. 13 App. Div. 439, 43 N. Y. Supp. 606; Baird v. New York C. & H. E. R. Co. 16 App. Div. 490, 44 N. Y. Supp. 926; Saevenson v. Gelsthorpe, 10 Mont. 563, 27 Pac. 404. It may be competent to show notice to an employer. Cincinnati, H. & I. E. Co. If. Jones, 111 Ind. 259, 12 N. E. 113 (disposition of horse) ; CHARACTER. 325 Terrell v. Russell, 16 Tex. Civ. App. 573, 42 S. W. 129; Western Stone Co. V. Whalen, 151 111. 472, 38 N. E. 241, and cases cited (followed in Chicago, L. S. & E. R. Co. v. Hartmann, 71 111. App. 427), S. P. Brooks V. Action, 117 Mass. 204. 5. Single instances. Carelessness on a single previous occasion is not alone com- petent to show unfitness for service ; ^ but carelessness on several occasions is, if accompanied by evidence of notice to the em- ployer.* 1 Lacy V. Kossuth County, 106 Iowa, 16, 75 N. W. 689 ; Piehl v. Albany R. Co. 19 App. Div. 471, 46 N. Y. Supp. 257; Baltimore v. War, 77 Md. 593, 27 Atl. 85. As to evidence of specific instances to prove character in civil actions, see also note in 14 L.R.A. (N.S.) 745, especially division as to character of servant in action against master, beginning on page 756. * Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338; Baulec v. New York & H. R. Co. 59 N. Y. 356, 17 Am. Rep. 325, affirming in effect 12 Abb. Pr. N. S. 310, 5 Lans. 436, 62 Barb. 623. 6. Intoxication. Intoxication at a time within the period of service is relevant to the question of the competency of a servant* So, also, evidence of the habits of intoxication is admissible in connection with other evidence showing his habits from such period to the time of the occurrence under investigation, on the question as to his suitability for the place he was filling.* 1 Probst V. Delamater, 100 N. Y. 266, 3 N. E. 184. 8 Cox V. Central Vermont R. Co. 170 Mass. 129, 49 N. E. 97. But the fact that an engineer a year previous to an accident alleged to have been caused by his negligence took an occasional sociable drink, or was occasionally under the influence of drink, is not sufficient to authorize the inference that he had been rendered incapable of prop- erly managing his engine. Cosgrove v. Pitman, 103 Cal. 268, 37 Pac. 232; Baltimore & 0. R. Co. v. Henthorne, 19 C. C. A. 623, 43 U. S. App. 113, 73 Fed. 634. 7. Inspection of witness. The jury may consider the appearance and conduct of a witness, to aid them in determining whether he has suitable 326 BEIEF ON FACTS. qualifications and intelligence to be intrusted with a respon- sible duty.* 1 Keith V. New Haven & N. Co. 140 Mass. 175, 3 N. E. 28. Devens, J., says, the same principle applies when the inquiry relates to intelli- gence and understanding, as well as physical capacity. CITIZENSHIP. 1. Distinguished from residence. 2. Presumption. 3. Naturalization. 4. Passport. 5. Hearsay. 6. Declarations to show lack of citizenship. 7. Citizenship of foreign-born wife. See also Naturalization. 1. Distinguished from residence. An allegation of residence cannot avail as equivalent to an allegation of citizenship for the purpose of giving jurisdiction.* 1 Menard v. Goggan, 121 U. S. 253, 30 L. ed. 914, 7 Sup. Ct. Rep. 873 (at law); Everhart v. Huntsville College, 120 U. S. 223, 30 L. ed. 623, 7 Sup. Ct. Rep. 555 (in equity). In citizenship, residence and intent must concur; a man may reside awhile within a state without becoming a, citizen. Sharon v. Hill, 26 Fed. 337; State Sav. Asso. v. Howard, 31 Fed. 433. 2. Presumption. To support an apparent right,* or to avoid an inference of illegal conduct,^ citizenship will be presumed in the absence of evidence to the contrary. 1 Blight V. Rochester, 7 Wheat. 535, 5 L. ed. 516 ; Shelton v. Tiffin, 6 How. 163, 12 L. ed. 387 (so holding of residents) ; Behrensmcyer v. Kreitz, 135 111. 591, 26 N. E. 704. CITIZENSHIP. 327 -As to presumptions and burden of proof of diverse citizenship for the pur- pose of giving the Federal courts jurisdiction, see Minneapolis v. Keun, 6 C. C. A. 31 , 12 U. S. App. 446, 56 Fed. 576; Foster v. Cleve- land, C. C. & St. L. E. Co. 56 Fed. 434; National Masonic Asso. v. Sparks, 28 C. C. A. 399, 49 U. S. App. 681, 83 Fed. 225. -According to Harris v. Kellogg, 117 Cal. 484, 49 Pac. 708, citizenship or a declaration of intention to become a citizen must be averred and proved in order to maintain an action for possession of a, mining claim located under the laws of the United States. a People ex rel. Smith v. Pease, 27 N. Y. 45, 84 Am. Dec. 242, followed in Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 Pac. 153; People ex rel. Boyer v. Teague, 106 N. C. 576, 11 S. E. 665. Citizenship is presumed to continue until a change is established. State ex rel. Phelps v. Jackson, 79 Vt. 504, 8 L.R.A.(N.S.) 1245, 65 Atl. 657. A person in the merchant marine service of the United States, residing in Massachusetts is presumed to be a citizen under a Federal statute which requires such officers to be citizens. Buckley v. McDonald, 33 Mont. 483, 84 Pac. 1114. For other cases as to presumption of citizenship from residence, see note in 8 L.E.A.(N.S.) 1245. 3. Naturalization. That a voter has taken out naturalization papers subsequent to the election at which he voted is in the nature of an admis- sion that he was not a qualified voter at the time of the elec- tion, but it is not competent evidence upon a contest of the elec- tion.* 1 Behrensmeyer v. Kreitz, 135 111. 591, 26 N. E. 704. 4. Passport. A passport issued by our government is not of itself evidence -of citizenship for the purpose of a judicial trial. It is but an ex parte certificate; and if founded upon evidence produced by the secretary of state establishing citizenship, that evidence, if admissible, should be produced to render the passport compe- tent.* lUrtetiqui v. D'Arcy, 9 Pet. 692, 9 L. ed. 276. A. passport issued to a Chinese person by the Secretary of State is not evidence of the citizenship of such person in the United States. Ed- sell V. Mark, 103 C. C. A. 121, 179 Fed. 292. 328 BRIEF ON FACTS, 5. Hearsay. Citizenship is not a fact of pedigree to be proved by declara- tions in the nature of hearsay.* 1 Anonymous cases cited in 1 Pick. 247 (alienage of a deserter from the army). 6. Declarations to show lack of citizenship. Declarations of voters made before or after election, and not as a part of the res gestce, are not admissible in an election con- test to show their disqualification.' 1 Rucks V. Renfrew, 54 Ark. 409, 12 L.R.A. 362, 16 S. W. 6. But the courts are not in harmony upon this question, as may be seen from the case just cited. And it has been held that such declarations are competent if made at or prior to the election. Sharp v. Mclntire, 23 Colo. 99, 46 Pac. 115. Even though they do not accompany any act. Behrensmeyer v. Kreitz, 135 111. 591, 26 N. E. 704. 7. Citizenship of foreign-born wife. Citizenship of a foreign-born woman claiming under the nat- uralization of her husband can be proved only by the record of his naturalization.' 1 Belcher v. Farren, 89 Cal. 73, 26 Pac. 791; Harney v. Farren, — Cal. — , 26 Pac. 792. CLAIM. For kindred topics, see Adveese Possession; Negative; Possession. Direct testimony. A witness may, subject to cross-examination as to details, testify that a person in possession claimed a fee, or a dower in- terest, or a reversion, etc., as the case may be.' COLLATERAL OEAL AGEEEMENT. 329 So he may testify that he never heard any other person claim the property.* 1 Hancock v. Kelly, 81 Ala. 368, 2 So. 281. Compare Niles v. Patch, 13 Gray, 254 (witness who testified he had been accustomed to go upon the premises, not allowed to be asked what for) ; Diefendorf v. Thomas, 37 App. Div. 49, 55 N. Y. Supp. 699, an action for ejectment, where it is held error to allow a witness to state his conclusion that a party, during her occupancy, claimed title to the disputed strip of land; but that he might testify to the acts and declarations on which he bases that conclusion. Abstract of title, delivered by vendor, competent to show his claim of title, as against him. Hartley v. James, 50 N. Y. 38. 2 Maxwell v. Harrison, 8 Ga. 61, 52 Am. Dec. 385. Direct testimony. It was competent in an action in ejectment foi' a wit- ness to testify that she knew that a certain person claimed the prop- erty as her own, and so claimed it continuously to her death. Hays v. Lemoine, 156 Ala. 465, 47 So. 97. A claim is not established by a voluntary unanswered letter containing a demand or statement of indebtedness. Healy v. Malcolm, 77 App. Div. 69, 78 N. Y. Supp. 1043. A party was allowed to testify as to who, if anybody claimed specified land after a particular date, the question of such claim being perti- nent to the issue of possession. Field v. Field, 39 Tex. Civ. App. 1, 87 S. W. 726. COLLATERAL OEAL AGEEEMENT. The rule against oral evidence. The rule against oral evidence to vary a writing^ does not preclude proving an oral stipulation collateral * to even a sealed contract, if the object is not to show a breach of the contract as thus modified, but merely to enforce the oral stipulation itself ; and this may be done even by way of counterclaim against the liability arising on the written contract.' 1 The settled rule is that evidence of an oral agreement made at or prior to the time of the execution of a written instrument is properly ex- 330 BEIEF ON FACTS, eluded if such oral agreement does not fall within any of the excep- tions to the rule forbidding oral evidence to vary the terms of a writ- ing. Genet v. Delaware & H. Canal Co. 122 N. Y. 505, 25 N. E. 922 ; 'Culver V. Wilkinson, 145 U. S. 205, 36 L. ed. 676, 12 Sup. Ct. Rep. 832; Crescent Brewing Co. v. Handley, 90 Ala. 486, 7 So. 912; Jen- kins V. Shinn, 55 Ark. 347, 18 S. W. 240; Osborne v. Taylor, 58 Conn. 439, 20 Atl. 605; Murchie v. Peck, 160 111. 175, 43 N. E. 356; Younie V. Walrod, 104 Iowa, 475, 73 N. W. 1021; Diebold Safe & Lock Co. v. Huston, 55 Kan. 104, 28 L.E.A. 53, 39 Pac. 1035; Neal v. Flint, 88 Me. 72, 33 Atl. 669; Nally v. Long, 71 Md. 585, 81 Atl. 811; Wooley v. Cobb, 165- Mass. 503, 43 X. E. 497; Wheaton Roller-Mill Co. v. John T. Noye Mfg. Co. 66 Minn. 156, 68 N. W. 854; Slaughter v. Smither, 97 Va. 202, 33 S. E. 544; Gilbert v. Stockman, 76 Wis. 62, 44 N. W. 845. See also cases in notes to Ferguson v. Rafferty, 6 L.R.A. 33; Durkin v. Cobleigh, 17 L.R.A. 270. And for the application of the rule and its exception in special instances, such as consideration, ex- planation, illegality, mistake, suretyship, etc., see the particular titles. 2 For cases instancing this exception to the rule, see McPherson v. Weston, 85 Cal. 90, 24 Pac. 733 (admitting oral evidence that defendant indorsed the note sued on, under an agreement, for a valuable con- sideration, that his coindorser was to hold him harmless on his in- dorsement) ; Brook v. Latimer, 44 Kan. 431, 11 L.R.A. 805, 24 Pac. 946 (admitting oral evidence to show that a promissory note executed by a daughter to her father was in fact executed as » mere receipt or memorandum of an advancement by the father to the daughter, and that there was a contemporaneous mutual understanding that pay- Tnent would never- be demanded or enforced) ; Queen Ins. Co. v. Kline, 17 Ky. L. Rep. 619, 32 S. W. 214 (admitting oral evidence of a parol agreement by an agent or solicitor of an insurance company, that the insured might have all the time he wanted to complete the in- sured property, to avoid the effect of a provision of the policy lim- iting the time to thirty days) ; Cole v. Hadley, 162 Mass. 579, 39 N. E. 279 (admitting oral evidence that the grantor of >land described as bounded on a specified street promised to grade and work such street so that it should be fit for travel, as an independent, collateral agreement) ;■ Breitenwischer v. Clough, 111 Mich. 6, 69 N. W. 88 (admitting oral evidence to show an agreement by the grantee, as part of the consideration, that he would allow the grantor to grow ■20 or 25 acres of wheat upon the place conveyed) ; American Bldg. & L. Asso. V. Dahl, 54 Minn. 355, 56 N. W. 47 (admitting oral evi- dence of an independent agreement between the sureties and the obligees of an indemnity bond at the time of its execution and as an inducement therefor, that the obligees would retain out of moneys agreed to be loaned the principal an amount sufficient to pay a cer- tain claim) ; Corbett v. Fetzer, 47 Neb. 269, 66 N. W. 417 (that the COLLATERAL OEAL AGEEEMENT. 331 terms of an indorsement in blank of a bill or note may be estab- lished by parol as between the original parties thereto, but not as between the indorser and a subsequent bona fide holder) ; Hamill v. Inventors' Mfg. Co. 55 X. J. Eq. G48, 37 Atl. 773 (tliat the effect of a covenant of warranty in a deed as an estoppel against the grantor to assert an existing encumbrance subsequently acquired by him may be avoided by proof of an oral agreement that tlie grantee should as- sume the mortgage); Benniman \. Alexander, 111 N. C. 427, 16 S. E. 408 (that one who accepts a writing directing him to pay a certain amount to the payee may show in an action upon the acceptance that there was a collateral agreement with the payee that he should not be required to pay except upon certain conditions) ; Evans v. Freeman, 142 N. C. 61, 54 S. E. 847 (parol evidence to show agreement that note was to be paid out of proceeds of sale of specified article). See also cases in notes to Ferguson v. Eafferty, 6 L.R.A. 33 and Durkin v. Cobleigh, 17 L.R.A. 270. The existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its terms, may be proved by parol, if under the circumstances of the par- ticular case it may properly be inferred that the parties did not in- tend the written paper to be a 'omplete and final statement of the whole of the transaction between them; but such an agreement must not only be collateral, but must relate to a subject distinct from that to which the written contract applies. Seitz v. Brewers' Refrigerat- ing Mach. Co. 141 U. S. 510, 35 L. ed. 837, and note, 12 Sup. Ct. Rep. 46. Parol evidence is competent to establish an independent collateral agree- ment as a condition precedent to a contract becoming operative. Manhattan Guide Co. v. Gluck, 52 Misc. 652, 101 N. Y. Supp. 528. So collateral agreement that promissory note was not to take effect until signed by third party may be proved by parol. Hodge v. Smith, 130 Wis. 326, 110 N. W. 192. But if a deed is absolute in form, parol evidence is inadmissible to prove a collateral agreement that certain buildings should be excepted from the operation of the deed. Mahaffey v. J. L. Rumbarger Lumber Co. 61 W. Va. 571, 8 L.R.A.(N.S.) 1263, 58 S. E. 893. In California the Code provides that a contract in writing may be altered by an executed oral agreement; and therefore oral evidence as to the circumstances attending an oral agreement made contempo- raneously with a. written agreement is admissible, where the oral agreement has been fully executed. Dunn v. Price, 112 Cal. 46, 44 Pac. 354. For notes on various phases of the question of admissibility of oral evi- dence to show collateral agreements, see 18 L.R.A. (N.S.) 337 (proof of escrow agreement); 23 L.R.A. (iST.S.) 1218 (reservation of growing crops from deed); 19 L.R.A.(N.S.) 1183 (parol warranty in connec- 332 BKIEF ON FACTS. tion with sale of personalty); 16 L.R.A.(N.S.) 1165 (parol evidence rule as to varying or contradicting written contracts as affected by the doctrine of waiver or estoppel as applied to policies of insurance) ; 18 L.R.A. (N.S.) 288 (oral evidence to show that bill or note was delivered upon condition); 28 L.R.A. (N.S.) 1045 (as to liability of accommodation parties inter se). 8 West Chester & P. R. Go. v. Broomall, 1 Sadler (Pa.) 587, 18 W. N. C. 44, 3 Atl. 444 (reversing for error in excluding evidence of an oral stipulation upon which a conveyance reciting only a nominal con- sideration was made); Van Brunt v. Day, 8 Abb. N. C. 336, 81 N. Y. 251 (oral agreement of assignee of mortgage with guaranty, to keep premises insured, in consideration of being allowed to retain part of the price of assignment, held available as a counterclaim on foreclosure) ; Richardson v. Traver, 112 U. S. 423, 431, 28 L. ed. 804, 5 Sup. Ct. Rep. 201 (recital of $100 as the consideration does not preclude evidence of promise to pay a large amount of outstanding debt; for this is not inconsistent with the deed. So held on the question of the duty to perform the collateral promise) ; United States v. Peck, 102 U. S. 64, 26 L. ed. 46 (the government claimed to recoup against price of wood, damages for not delivering hay also called for by the contract. Held, competent for plaintiff to show that at the time and place of making the contract it was understood that the contractor was to rely on the grass at a particular place, that being the only supply within hundreds of miles; and that afterwards the government, fearing he would make default, allowed other persons to cut this grass to supply the purpose for which the contract was made) ; Braly v. Henry, 71 Cal. 481, 11 Pac. 385, 12 Pac. 623, and cases cited (recoupment of damages for breach of oral agreement, so as to reduce recovery on note) ; Bennett v. Tillmon, 18 Mont. 28, 44 Pac. 80 (that it is competent in an action upon a promissory note to prove an oral agreement that the maker might be offset against the same on account due from one other than the payee, who furnished the consideration for the note). And in an action by a purchaser against his vendee for specific perform- ance of a written contract of sale of land conditioned for the payment of a specified amount, evidence of an oral agreement that the past services of the purchaser were to be accepted in full payment of the sums agreed to be paid by him in the written contract is admissible. Boles V. Welch, 94 Wis. 189, 68 N. W. 655. CONCEALMENT. 333 COMPEOMISE. . See also Admission. The burden of proof is on the party claiming a compromise. A compromise is presumed to include all existing controversies.* And a written promise to pay a sum agreed on as due upon a disputed claim cannot be defeated by proving that nothing was due.^ 1 Barber v. Maden, 126 Iowa, 402, 102 N. W. 120. 2 Johnson v. Berdo, 131 Iowa, 524, 106 N. W. 609. s Dunham v. Griswold, 100 N. Y. 224, 3 N. B. 76. CONCEALMENT. 1. Positive acts. 2. Circumstantial evidence. And see Absence; Fictitious Pebson. 1. Positive acts. Positive acts calculated to prevent discovery must be shown.* 1 Rhoton V. Mendenhall, 17 Or. 199, 20 Pac. 49, and cases cited. An alleged fraudulent concealment of a cause of action, to avoid the stat- ute of limitations, can only be established by affirmative acts or acts of gross negligence. Cunningham v. Dougherty, 121 111. App. 395. Thus, defendant in a common-law action based, not upon fraud or vio- lation of trust, but upon a breach of duty or an implied undertaking, cannot be deprived of the benefit of the statute of limitations, ex- cept upon proof of actual fraudulent concealment, amounting to something more than mere silence. Despeaux v. Pennsylvania E. Co. 87 Fed. 794. 2. Circumstantial evidence. Absence, and the declarations of persons at the abode refusing information or answering inquiries evasively, may be sufficient evidence of concealment.* iGenin v. Tompkins, 12 Barb. 265, 284; Baker v. Stephens, 10 Abb. Pr. N. S. 1, 12, 27. 334 BRIEF ON FACTS. COlSTDITIOlsr OF PEESOJSTS, PLACES, AND THINGS. I. Condition of Pebsons. 1. Condition in life. 2. Financial condition. a. In general. b. General reputation. 3. Physical conditions. a. Photographs. b. Direct testimony. c. Inspection in court. d. Inspection out of court. II. Condition of Places and Things. 4. Direct testimony. a. In general. b. What witness observed. 6. Combining testimony of several witnesses. B. Condition at another time or place. a. In general. b. Laying foundation for the evidence. 7. Inspection in court. 8. View by jury. 9. Experiments. 10. OiBcial inspection. 11. Use of correct photograph or map. 12. Use of approximate maps, plans, etc. a. In general. b. Reasonable accuracy. See also Fobqotten Fact; Negative. As to Conditional Delivery, etc., see Contract; Delivery. I. Condition of Pebsons. See also Ability; Age; Autopsy; Cause; Disb:ase; Effect; Feelings; Health; Insanity; Insolvency; Intoxication. 1. Condition in life. In an action for damages for a personal injury, evidence that plaintiff is married and has a family,* and as to the number and ages of his children,^ is inadmissible, as it does not legitimately affect the amount of damages. But the condition in life, and CONDITION OF PERSONS, PLACES, AND THINGS. SSS social standing, of plaintiff in a libel suit, is competent to show the nature and extent of the injury.' 1 Louisville & N. R. Co. v. Binion, 107 Ala. 645, 18 So. 75; Galion v. Lauer, 55 Ohio St. 392, 45 N. E. 1044. As opposed to these cases is Perry v. Lansing, 17 Hun, 34, in which it was held (one of the- three justices concurring in the result, the other dissenting) that it is not error to show that plaintiff in such an action was a man of family, as the jury are entitled to know the situation or con- dition in life of a, party or witness. See, however, Mannion v. Hagan, 9 App. Div. 98, 41 N. Y. Supp. 86, in which it was held prejudicial error on the authority of Pennsylvania Co. v. Koy, 102 U. S. 451, 26 L. ed. 141, to permit plaintiff to testify that in making an unsuccessful appeal to defendant for compensation for his in- juries he had stated that he was a poor man and had a wife. 8 Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. ed. 141; Dayharsh v. Hannibal & St. J. R. Co. 103 Mo. 570, IS S. W. 554; Kreuziger v. Chicago & N. W. R. Co. 73 Wis. 158, 40 N. W. 657. But evidence as to the number and age of plaintiff's children is admissible in an action brought by a husband for damages for injuries to his wife and the loss of her services to himself and their children. Conway V. New Orleans & C. R. Co. 46 La. Ann. 1429, 16 So. 362. And evi- dence that a wife suing to abate a nuisance was married and had six children, ana that she furnished the house in which they resided, is admissible to show the use to which she was putting the property as bearing on the question of her injury. Friburk v. Standard Oil Co. 66 Minn. 277, 68 N. W. 1090. And to permit plaintiff in an action for personal injuries to state how many persons he had to care for, and of whom they consisted, is not prejudicial, where the court charged that punitive damages should not be awarded, unless in a clear case of wilful, palpable disregard of duty. Johns v. Charlotte, C. & A. R. Co. 39 S. C. 162, 20 L.R.A. 520, 17 S. E. 698. The names and ages of the children of a person for whose death an action is brought may be proved under a statute providing that such dam- ages may be given as under all the circumstances may be just (Pool V. Southern P. Co. 7 Utah, 303, 26 Pac. 654; Chilton v.- Union P. R. Co. 8 Utah, 47, 29 Pac. 963), — especially where they are parties to the action; English v. Southern P. Co. 13 Utah, 407, 35 L.R.A. 155, 45 Pac. 47. The same is true where the statute gives a right of action for the benefit of the widow and next of kin free from the claims of creditors, and awards damages to the parties for whose use and benefit the right of action from death consequent upon an injury survives. Spiro v. Felton, 73 Fed. 91. But such evidence is inadmissible where the statute limits the damages to a fair and just compensation for the pecuniary injury resulting from the death. 336 BBIEF ON FACTS. Bradley v. Ohio River & C. R. Co. 122 N. C. 972, 30 S. E. 8. The number of an intestate's children can have no legitimate bearing on the value of the deceased's life to his estate. Beems v. Chicago, R. I. & P. R. Co. 58 Iowa, 150, 12 N. W. 222. But the number and ages of the dependents upon a person for whose death an action is brought may be proved where the evidence as to what proportion of his earnings were consumed in his own support is circumstantial. Alabama Mineral R. Co. v. Jones, 114 Ala. 519, 21 So. 507. The number and ages of a widow's minor children may be shown in an action by her to recover for the death of her husband, since the liability to maintain the children is, by his death, cast upon her. Tetherow v. St. Joseph & D. M. R. Co. 98 Mo. 74, 11 S. W. 31U. But, although such evidence may be admissible, the damages re- coverable are those which the widow, and not the children, has suffered. Abbott V. McCadden, 81 Wis. 563, 51 N. W. 3079. S Press Pub. Co. v. McDonald, 26 L.R.A. 531, 11 C. C. A. 155, 26 U. S. App. 167, 63 Fed. 238; Turner v. Hearst, 115 Cal. 394, 47 Pac. 129; Alliance Review Pub. Co. v. Valentine, 9 Ohio C. C. 387, 6 Ohio C. T>. 323. Evidence that a woman suing for libel imputing unchastity has three small children is admissible, as her relation to them is such as may make the hurt to her more acute and per- manent, and render her more sensitive to, and more helpless against, the wrong done. Enquirer Co. v. Johnston, 18 C. C. A. 628, 34 U. S. App. 607, 72 Fed. 443. In a proceeding to condemn land for a, railroad it is not competent for the owner to prove the number of children composing his family. Shir- ley V. Southern R. Co. 121 Ky. 187, 89 S. W. 124. 2. Financial condition. a. In general. — A witness having had adequate opportunity of observation and hearing reputation may testify what were a man's circumstances as to property,^ whether a man's business was profitable,^ whether he was able to pay a specified sum, and whether he lived extravagantly.' The financial condition of plaintiff in an action to recover damages for personal injuries is not competent to affect the amount of the damages,* but his prior earning capacity,* or the profits of his business,* may be proved. Evidence of the poverty or wealth of the persons for whose benefit an action is brought to recover damages for the death of another is inadmissible for the purpose of affecting damages,' although such evidence may be competent to show their CONDITIOlif OF PERSONS, PLACES, AND THINGS. 337 pecuniary interest in the life of the deceased.' Proof of the earning capacity of the deceased should be confined to such con- ditions as actually existed at the time of his death, and such as it is reasonably certain will occur in the future.' The rule excluding evidence of defendant's financial condition does not extend to actions in which exemplary or punitive dam- ages are recoverable,^" or in which the degree of the injury is dependent upon the status of defendant ;^^ and such evidence is always admissible in actions for the breach of a promise to marry.** 1 Sheldon v. Root, 16 Pick. 587, 28 Am. Dec. 266. Evidence of pecuniary condition of lessees at the time of giving guaran- ties for faithful performance is competent to show their financial responsibility, and that the guaranties furnished were proper. Por- ter V. Carpenter, 65 N. H. 650, 23 Atl. 523. But proof of the style in which an administrator and his sureties lived after the approval of his bond is inadmissible to show their financial condition when the bond was given, or that collection could have been enforced from them. Field v. Wallace, 89 Iowa, 597, 57 N. W. 303. Evidence is proper as to specific property owned by defendant. Vierling V. Binder, 113 Iowa, 337, 85 N. W. 621. See also Smith v. Compton, 67 N. J. L. 548, 58 L.K.A. 480, 52 Atl. 386 (same rule, as affect- ing plaintiff's possible dower in defendant's property). 8Bartlett v. Decreet, 4 Gray, 111 (excluding question "From your knowl- edge of E. was his business profitable?" merely because it was thus restricted. Another question based on an examination of B.'b busi- ness was allowed at the trial by Mellen, Ch. J.). Testimony as to what business, if any, one chai:ged with theft was pur- suing, is competent on his trial for that offense to show his financial condition at the time of the alleged theft. Sims v. State, — Tex. Crim. Rep. — , 45 S. W. 705. S Griffin v. Brown, 2 Pick. 304, 309, holding that to add that he had spent a larger sum, as witness verily believes, is not objectionable, for it gives, not mere opinion, but reasons for the testimony. 4 Alabama G. S. R. Co. v. Carroll, 28 C. 0. A. 207, 52 U. S. App. 442, 84 Fed. 772; Parsons v. Lindsay, 26 Kan. 426; Schwanzer v. Brook- lyn Heights R. Co. 18 App. Div. 205, 45 N. Y. Supp. 889; Shea v. Potrero & B. V. R. Co. 44 Cal. 414. But see Stafford v. Oskaloosa, 64 Iowa, 251, 20 N. W. 174, in which evidence that a physician suing for personal injuries had no other means of support than his earn- ings was held competent. Except where the evidence will justify the jury in awarding exemplary or punitive damages. Beck v. Dowell, 111 Mo. 506, 20 S. W. 209. Abb. Facts — 22. 338 BRIEF OT^ TACTS. B Louisville & N. E. Co. v. Woods, 115 Ala. 527, 22 So. 33; Cleveland, C. C. & St. L. R. Co. V. Gray, 148 Ind. 266, 46 N. E. 675; McCarthy V. Philadelphia & R. E. Co. 211 Pa. 193, 60 Atl. 778. Eeturns made by ii physician to the assessors, showing all of hia property, in- cluding debts due or to become due to him, is inadmissible for the purpose of showing the amount of his income from his practice in former years. Nelson ^. Boston & M. E. Co. 155 Mass. 356, 29 N. E. 586. Evidence of salaries and fees earned in an office which expired before the accident is inadmissible to show earning capacity- Chicago, St. P. M. & O. R. Co. V. Myers, 25 C. C. A. 486, 49 U. S. App. 279, 80 Fed. 361. Evidence that plaintiff was receiving a specified salary per month is. persuasive, although not conclusive, evidence that such amount was- a, fair value of his earning power. Goodhart v. Pennsylvania E. Co. 177 Pa. 1, 35 Atl. 191. But evidence of the age, health, and habit of a person is not sufficient to sustain a verdict based on his probable earnings with nothing to show his earning power or his- business habits or past earnings. McHugh v. Schlosaer, 159 Pa. 480, 23 L.E.A. 574, 28 Atl. 291. Evidence that a person suing for personal injuries which compelled her to give up her position had been promised an increase of salary- within a, short time if she remained and proved satisfactory is com- petent. Bryant v. Omaha & C. B. R. & Bridge Co. 98 Iowa, 483,. 67 N. W. 392. 6 The profits of a business before an accident may be shown for the pur- pose of showing the loss resulting from the destruction or suspen- sion of the business by reason of the accident. Evans v. Murphy,. 87 Md. 498, 40 Atl. 109. But where the business is of such a, nature- that the profits are uncertain, proof of past profits is inadmissible. Masterton v. Mt. Vernon, 58 N. Y. 391. TMahoney v. San Francisco & S. M. E. Co. 110 Cal. 471, 42 Pac. 968- (so held under a statute which limits the damages to the "pecuniary" mjuries) ; Chicago, P. & St. L. E. Co. v. Woolridge, 174 111. 330, 51 N. E. 701; Dallas v. Moore, 32 Te.x. Civ. App. 230, 74 S. W. 95. The more prosperous condition of the decedent's family after his death is inadmissible where the statute gives the widow the gross value of her husband's life. Boswell v. Barnhart, 96 Ga. 521, 23 S. E.. 414. And see note 8, infra. 8 Where there is no dependent condition between decedent and his kin- dred, their poverty or wealth can furnisli no guidance to the jury in fixing the damages, but where the head of a family is taken away the fullest insight into the family circumstances is of value in de- termining the injury. Staal v. Grand Eapids & I. R. Co. 57 Mich. 239, 23 N. W. 795. Evidence that the Avidow and children were- dependent upon the decedent before and at his death for their sup- port is admissible. Swift v. Foster, 163 111. 50, 44 N. E. 837. OONDITIOSr OP PEESONS, PLACES, AND THINGS, 339 Evidence as to the financial condition and means of support of the parents of deceased is adriissible under a statute which limits the damages to the pecuniary injury sustained. Cincinnati Street E. Co. r. Altemeier, 60 Ohio St. 10, 53 N. E. 300; Potter v. Chicago & N. W. E. Co. 21 Wis. 373, 94 Am. Dec. 548. To the same effect are Pressman v. Mooney, 5 App. Div. 121, 39 N. Y. Supp. 44; Lipp V. Otis Bros. & Co. 28 App. Div. 228, 51 N. Y. Supp. 13; Chicago V. Powers, 42 111. 169, 89 Am. Dec. 418; Augusta E. Co. v. Glover, 92 Ga. 132, 18 S. E. 406; Galveston, H. & S. A. E. Co. v. Bonnet, — Tex. Civ. App. — , 38 S. W. 813. And such evidence is admissible without being specially pleaded. International & G. N. E. Co. v. Knight, 91 Tex. 660, 45 S. W. 556. Where decedent was accustomed to contribute to his father's support, evidence of the father's financial condition was held proper on the question of the probable continuance of the support. United States Electric Lighting Co. v. Sullivan, 22 App. D. C. 115. A husband's circumstances and financial condition may be proved to enable the jury to assess the damages for the negligent death of his wife under a, statute authorizing such damages as are fair and just with reference to the pecuniary injuries resulting from sucli death. Thoresen v. La Crosse City E. Co. 94 Wis. 129, 68 N. W. 548. Evidence of a husband's wealth at the time of the negligent killing of his wife is admissible in an action for damages by his fourteen-year-old girl to show what aid she could expect to receive from the continuance of her mother's life. Gulf, C. & S. F. E. Co. V. Younger, 90 Tex. 387, 38 S. W. 1121. 9 Hesse v. Columbus, S. & H. E. Co. 58 Ohio St. 167, 50 N. E. 354; Brown v. Chicago, E. I. & P. R. Co. 64 Iowa, 652, 21 N. W. 193; Bonnet v. Galveston, H. & S. A. E. Co. 89 Tex. 72, 33 S. W. 334. Evidence that decedent, a railroad employee, could do a good day's work as a plasterer, and as to the wages paid to plasterers at the time of his death, is admissible. Grimmelman v. Union P. E. Co. 101 Iowa, 74, 70 IST. W. 90. The value of a fire insurance agent's business may be shown on the question of damages resulting from his wrongful death. Wheeling & L. E. E. Co. V. Parker, 29 Ohio C. C. 1. 10 Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53; Johnson V. Smith, 64 Me. 553; Webb v. Oilman, 80 Me. 177, 13 Atl. 688; Courvoisier v. Eaymond, 23 Colo. 113, 47 Pac. 284; Johnson v. Allen, 100 N. C. 131, 5 S. E. 666; Eowe v. Moses, 9 Eich. L. 423, 67 Am. Dec. 560; Matheis v. Mazet, 164 Pa. 580, 30 Atl. 434; Eea v. Har- rington, 58 Vt. 181, 56 Am. Eep. 561, 2 Atl. 475; Eagleton v. Kab- rich, 66 Mo. App. 231; Willett v. Johnson, 13 Okla. 563, 76 Pac. 174. Contra: Guengerech v. Smith, 34 Iowa, 348. The rule in Iowa excludes evidence of defendant's wealth and social position except in cases of breach of a promise to marry and of slander. Bailey v. Bailey, 94 Iowa, 598, 63 N. W. 341. 340 BRIEF ON FACTS. But evidence of the wealth of one of the defendants in a libel suit, offered as bearing on the allowance of exemplary damages, is inad- missible, as the verdict must be against all the defendants, and may be collected from any of them. Washington Gaslight Co. v. Lans- den, 172 XJ. S. 534, 43 L. ed. 543, 19 Sup. Ct. Rep. 296. 11 Evidence of the financial standing of defendant in an action for slander is admissible to show the influence his words would have in the community. Bennett v. Hyde, 6 Conn. 24; Humphries v. Parker, 52 Me. 502 ; Botsford v. Chase, 108 Mich. 432, 66 N. W. 325 ; Womack V. Circle, 29 Gratt. 192. Contra: Ware v. Cartledge, 24 Ala. 622, 60 Am. Dec. 489; Enos v. Enos, 58 Hun, 48, 11 N. Y. Supp. 415; Austin V. Bacon, 49 Hun, 388, 3 N. Y. Supp. 587; Morris v. Barker, 4 Harr. (Del.) 520. The true subject of inquiry is the character, standing, and influence of the defendant, to constitute which wealth is not a necessary ingredient. Palmer v. Haskins, 28 Barb. 90. 18 Evidence of the wealth of defendant in an action for breach of promise to marry is admissible, not to show his ability to pay damages, but as tending to show the condition in life which plaintiff would have secured by a consummation of the marriage contract. Hunter V. Hatfield, 68 Ind. 416; Bennett v. Beam, 42 Mich. 346, 4 N. W. 8; Stratton v. Dole, 45 Neb. 472, 63 N. W. 875; Kniffen v. McCon- nell, 30 N. Y. 285; Olson v. Solverson, 71 Wis. 667, 38 N. W. 329; Birum v. Johnson, 87 Minn. 362, 92 N. W. 1. Evidence of defendant's wealth is admissible in an action by a woman for deceiving her into a void marriage with him, — especially where she claims damages for the value of her services in accumulating the property. Morrill v. Palmer, 68 Vt. 1, 33 L.R.A. 411, 33 Atl. 829. b. General reputation. — General repute is not competent as tending to show financial condition;' but it is competent as tending to Bho-w knowledge thereof, or the good faith of a person who acted in reliance on such repute.* 1 Sheldon v. Root, 16 Pick. 567, 28 Am. Dec. 266. But the wealth of defendant in a slander suit, when competent (see § 2, this title) can only be proved by general reputation, and not by particular facts. Stanwood v. Whitmore, 63 Me. 209. And evidence as to the financial condition of defendant in an action for breach of promise to marry should be confined to general reputation. Knif- fen V. McConnell, 30 N. Y. 285; Stratton v. Dole, 45 Neb. 472, 63 N. W. 875. 2 Blanchard v. Mann, 1 Allen, 433. But evidence as to a person's re- puted wealth is inadmissible to show the good faith of one who made incorrect representations as to the former's wealth upon bis CONDITION OF PERSONS, PLACES, AND THINGS. 341 "personal knowledge." Browning v. National Capital Bank, 13 App. D. C. 1. And evidence of a mere rumor that a banker was engaged in stock speculations is inadmissible for the purpose of showing by reputation his financial standing. People ex rel. Naah V. Faulkner, 28 N. Y. S. R. 52, 8 N. Y. Supp. 376. 3. Physical condition. a. Photo graphs. — A photograph, if proved to be correct, is competent to show the physical condition of a person as appar- ent to the eye at the time it was taken.* And this rule ex- tends to X-ray photographs offered to show the condition of a bone hidden from view.* 1 Cowley V. People, 83 N. Y. 464, 38 Am. Eep. 464 (photographs of children ill treated) ; Eeddin v. Gates, 52 Iowa, 210, 2 N. W. 1079 (ferrotype of plaintiff's back and shoulder showing effect of assault) ; Alberti v. New York, L. E. & W. E. Co. 118 N. Y. 77, 6 L.E.A. 765, 23 N. E. 35 (photograph showing manner in which injured person's limbs have been contracted ) . Photograph of a child is competent to show probabilities of further growth and future development, although taken two years before the child's death. Taylor, B. & H. E. Co. v. Warner, 88 Tex. 642, 32 S. W. 868. See also Photogeaphs. As to use in evidence of photographs of persons or parts of the body, Bee also note in 35 L.E.A. 805. * Bruce v. Beall, 99 Tenn. 303, 41 S. W. 445; Smith v. Grant, 29 Chi- cago Legal News, 145; Geneva v. Burnett, 65 Neb. 464, 58 L.E.A. 287, 101 Am. St. Eep. 628, 91 N. W. 275 (to show condition of in- ternal tissue). And the fact that a sciagraph of an injured hip was taken five years after the injury does not render it inadmissible in evidence upon the question of the character of the injury. Bonnet v. Foote, 47 Colo. 282, 28 L.E.A.(N.S.) 136, 107 Pac. 2S2. h. Direct testimony. — The rule which allows a witness to testify to his own condition* does not admit his statement of what he learned about himself from his medical attendant, nor from others, even as to his condition when unconscious.* 1 See Effect; Febxinqs. 8 Hagadorn v. Connecticut Mut. L. Ins. Co. 22 Hun, 249. c. Inspection in court. — If physical condition of a party 342 BEIEF ON PACTS. is material, he has a right, when giving his testimony as to it, to exhibit it to the jury,^ or to an expert called to describe the injury f but he has not a right to make unsuccessful efforts be- fore them, as evidence in his own behalf, of his incapacity.' x\s to compulsory exhibition the cases are conflicting.* iHess V. Lowrey, 122 Ind. 225, 7 L.R.A. 90, 23 N. E. 156; Topeka v. Bradshaw, 5 Kan. App. 879, Appx., 48 Pac. 751; Langworthy v. Greene Twp. 95 Mich. 93, 54 N. W. 697; Edwarda v. Three Rivers, 96 Mich. 625, 55 N. W. 1003; Cunningham v. Union P. R. Co. 4 Utah, 206, 7 Pac. 795; Carrico v. West Virginia, C. & P. R. Co. 39 W. Va. 86, 24 L.R.A. 50, 19 S. E. 571; Townaend v. Briggs, — Cal. — . 32 Pac. 307. But not in an action for malpractice where several years have elapsed since the injury has healed, since such an .inspection could not aid the jury in determining the merits or demerits of the treatment. Carstens v. Hanselman, 61 Mich. 426, 28 N. W. 159. So it is error to allow plaintiff, in an action for personal injuries due to the bite of a dog, to exhibit his condition three years thereafter, and nine months after the time of his suffering therefrom as fixed in the declaration, where no testimony was offered to show that his con- dition had not changed for the worse. Fench v. Wilkinson, 93 Mich. 322, 53 N. W. 530. 2Mulhado v. Brooklyn City R. Co. 30 N. Y. 370 (the leading case); Lanark v. Dougherty, 153 111. 163, 38 N. E. 892. And the expert may place him in different attitudes to enable the jury to determine the extent of his disability. Citizens' Street R. Co. v. Willoeby, 134 Ind. 563, 33 N. E. 627. S Clark v. Brooklyn Heights R. Co. 177 N. Y. 359, 69 N. E. 647, affirm- ing 78 App. Div. 478, 79 N. Y. Supp. 811. See also Ability; Handwkitikg. *As upholding the power of the court to compel the witness to exhibit his condition or submit to a personal examination in the presence of the jury, see St. Louis S. W. R. Co. v. Dobbins, 60 Ark. 486, 30 S. W. 887, 31 S. W. 147 (discretionary to order it to be made in court or out) ; Hall v. Manson, 99 Iowa, 698, 34 L.R.A. ,207, 68 N. W. 922; Atchison, T. & S. F. R. Co. v. Thul, 29 Kan. 466, 44 Am. Rep. 659; Graves v. Battle Creek, 95 Mich. 266, 19 L.R.A. 641, 54 N. W. 757; Miami & M. Turnp. Co. v. Baily, 37 Ohio St. 104; Bag- ley V. Mason, 69 Vt. 175, 37 Atl. 287. But the application should not be granted if the examination vv'ill necessarily involve the use of anaesthetics. Strudgeon v. Sand Beach, 107 Mich. 496. 65 N. W. 616. Several courts deny the existence of any power to compel such exhibition. Ulinois C. R. Co. v. Griffin, 25 C. C. A. 413, 53 U. S. App. 22, 80 CONDITIOKT OF PERSONS. PLACES, AND THINGS. 343 Fed. 278; Mills v. Wilmington City E. Co. 1 Marv. (Del.) 269, 40 Atl. 1114; Parker v. Enslow, 102 111. 272, 40 Am. Rep. 588; Peo- ple V. McCoy, 45 How. Pr. 216; Neill v. Brooklyn Elev. R. Co. 13 Misc. 403, 34 N. Y. Supp. 1144. Mr. Abbott in the first edition suggested these rules: The better opin- ion is that a party not testifying in his own behalf, nor voluntarily exhibiting his condition, cannot be absolutely required at the in- stance of the adverse party, to exhibit such condition. But the court may require it as the condition of a favor; and in any case refusal in a civil action may be considered by the jury as evidence against him. As to cross-examination, the better opinion is that if he has testified in regard to it on his owx behalf, or voluntarily exhibited his physical condition, the court has power to require him to exhibit it upon cross-examination. (So far as this proposition authorizes compulsory after voluntary exhibition it is supported by Haynes v. Trenton, 123 Mo. 326, 27 S. W. 622; Winner v. Lathrop, 67 Hun, 511, 22 N. Y. Supp. 516.) If on direct he has testified as to his ability to do an ordinary physical act, such as walking, rid- ing, or writing, the court may require him to attempt such act in the presence of the Jury. See § 5, Ability; § 2, Handweiting. For other cases, see notes in 14 L.E.A. 466, and 23 L.R.A. (N.S.) 463. As to waiver of right to object to physical examination or exhibition of person, see note in 2 L.R.A. (N.S.) 386. As to when refusal of order for physical examination amounts to an abuse of discretion, see note in 15 L.R.A. (N.S.) 663. d. Inspection out of court. — In a suit to annul a marriage on the ground of impotence the court has power to compel the parties to submit to a physical examination whenever necessary to ascertain facts which are essential to a proper determination of the cause.'' As to the power of the court in an action for personal injuries to compel the injured person to submit to a physical examination by experts to enable them to testify to the nature and extent of the injuries from knowledge derived from the examination, the same conflict exists as was noted in the preceding section.^ 1 Devanbagh v. Devanbagh, 5 Paige, 554, 28 Am. Rep. 443 ; Anonymous, 89 Ala. 291, 7 L.R.A. 425, 7 So. 100; C. v. C. 32 L. J. Prob. N. S. 12. And see note to McQuigan v. Delaware, L. & W. R. Co. 14 L.R.A. 466. 8 The majority of the cases uphold the court's power to order such exam- ination. Alabama G. S. R. Co. v. Hill, 90 Ala. 71, 9 L.R.A. 442, 8 So. 90: White v. Milwaukee City R. Co. 61 Wia. 536, 50 Am. Rep. 344 BRIEF ON FACTS. 154, 21 N. W. 524; Lane v. Spokane Falls & N. W. R. Co. 21 Wash. 119, 46 L.R.A. 153, 57 Pac. 367; Owens v. Kansas City, St. J. & C. B. E. Co. 95 Mo. 169, 8 S. W. 350; Richmond & D. R. Co. t. Childress, 82 Ga. 719, 3 L.E.A. 808, 9 S. E. 602. It is within the sound discretion of the trial court to order the physical examination made or not, and to direct whether it shall be made in court or out. St. Louis S. W. E. Co. v. Dobbins, 60 Ark. 481, 30 S. W. 887, 31 S. W. 147. But it is reversible error to refuse the application where the ends of justice require the disclosure, and the examination may be made without danger to life or health. Schroeder v. Chicago, E. I. & P. E. Co. 47 Iowa, 375 ; Alabama G. S. E. Co. V. Hill, 90 Ala. 71, 9 L.R.A. 442, 8 So. 90; Sibley v. Smith, 46 Ark. 275, 55 Am. Rep. 584; Lane v. Spokane Falls & N. W. R. Co. 21 Wash. 119, 46 L.E.A. 153, 57 Pac. 367. After plaintiff has exhibited her condition to the jury it is reversible error to refuse to permit the examination by defendant's experts to enable them to give their opinion as experts as to her condition. Chicago, E. I. & T. E. Co. V. Langston, 92 Tex. 709, 50 S. W. 574, 51 S. W. 331. But the order is properly refused where it does not appear that a more certain ascertainment of the facts can be elucidated by further expert examination. Belt Electric Line Co. v. Allen, 19 Ky. L. Rep. 1656, 44 S. W. 89. And that the request was for examination by physicians selected by defendant alone is a sufficient groHnd for refusing it. Smith v. Spokane, 16 Wash. 403, 47 Pac. 888. If such examination is proper under any circumstances, it must be made before trial. Chadron v. Glover, 43 Neb. 732, 62 N. W. 62. The application should be made a. sufficient time before trial so that the examination may be deliberately and carefully made and without interfering with the progress of the trial; and where not made until after plaintiff had closed his testimony it was properly re- fused, no showing being made that the examination was essential to a. full understanding of the injuries. Southern Kansas E. Co. v. Michaels, 57 Kan. 474, 46 Pac. 938. It is not an abuse of dis- cretion to refuse the request of counsel first made after plaintiff has rested, with no showing that any benefit would be derived there- from. Terre Haute & I. R. Co. v. Brunker, 128 Ind. 542, 26 N. E. 178. So, an application is properly refused where not made until plaintiff has closed his evidence, and it is then impracticable with- out too long a suspension of the trial to obtain a competent and satisfactory physician by whom an impartial examination may be made. Savannah, F. & W. R. Go. v. Wainwright, 99 Ga. 255, 25 S. E. 622. Application is properly refused where not made until after the close of plaintiff's evidence with no reason shown for the delay (Miami & M. Tump. Co. v. Baily, 37 Ohio St. 104), — especially where the plaintiff offers to submit to a private examination as soon as the attendance of medical experts on his behalf have been CONDITION OF PERSONS, PLACES, AND THINGS. 345 secured. Hess v. Lowrey, 122 Ind. 225, 7 L.R.A. 90, 23 N. E. 156. And the order should not be made where the person is willing to be examined by competent and disinterested men without such order. Gulf, C. & S. F. R. Co. V. Norfleet, 78 Tex. 321, 14 S. W. 703. The power is absolutely denied by several courts in the absence of any statutory enactment. Union P. R. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734, 11 Sup. Ct. Rep. 1000; Peoria, D. & B. R. Co. v. Rice, 144 111. 227, 33 N. E. 951; McQuigan v. Delaware, L. & W. R. Co. 129 N. Y. 50, 14 L.R.A. 466, 29 N. E. 235. By an amend- ment to N. Y. Code Civ. Proc. § 873, power is expressly given trial courts to order a compulsory physical examination of one suing for personal injuries if a requisite showing be made, but an order for such examination can only be made in connection with or as a part of an order for the examination of a party before trial, and a physical examination cannot be authorized as an independent pro- ceeding. Lyon V. Manhattan R. Co. 142 N. Y. 298, 25 L.R.A. 402, 37 N. B. 113. Nor does the statute authorize an application to be made upon the trial. Cole v. Fall Brook Coal Co. 87 Hun, 584, 34 N. Y. Supp. 572. A state statute authorizing such examination will be followed in trials at common law in the United States courts sitting in the state where the statute exists, there being no law of Congress in conflict therewith. Camden & S. R. Co. v. Stetson, 177 U. S. 172, 44 L. ed. 721, 20 Sup. Ct. Rep. 617. For additional eases, see notes in 14 L.R.A. 466, and 23 L.R.A. (N.S.) 463. II. Condition of Places and Things. 4. Direct testimony. a. In general. — On a subject within the common knowledge and observation of ordinary life, any witness having had adequate opportunity of observation may be asked what was the condition of a place or thing.* Otherwise, however, where the condition of the place or thing is not observable except upon examination.* If the subject require special knowledge or experience, a witness so qualified may state his opinion.^ IThus, a witness who has stated the condition of a thing may character- ize it with the Impression made on his mind at the time, as, "I thought it was a dangerous place, . . . the condition was bad," — for this is a statement of knowledge, not of opinion. Lund v. Tyngsborough, 9 Cush. 36, 39. To the same effect, see Ryan v. Bristol, 63 Conn. 26, 27 Atl. 309 (sustaining such a holding on the 346" BEIKF ON PACTS. ground that the elements that enter into the question of reasonable safety may be so numerous and difficult to describe that they can- not be clearly shown to a jury) ; Kelleher v. Keokuk, 60 Iowa, 473. 15 N. W. 280, abstr. 28 Alb. L. J. 334 (statement in affidavit "that sidewalk was in good repair" therefore competent) ; Elkhart v. Wit- man, 122 Ind. 538, 23 N. E. 796 (that it is not improper to per- mit a witness to testify that "there were defects in" a sidewalk). In Reese v. Morgan Silver Min. Co. 17 Utah, 489, 54 Pac. 759, a witness who had visited a mine four days after an accident, and was shown by the shift boss the ladder from which the deceased fell, was permitted to testify as to its rotten condition as against an objection that he knew it was the ladder in use at the time of the accident by hearsay only. Compare Yeaw v. Williams, 15 R. I. 20, 23 Atl. 33 (holding that whether a, highway was safe, convenient, and in good repair at the time of the accident is not a subject for expert testimony. So held, where the question at issue was whether a post standing out at u, curve of the road was dangerous) ; Clark Civil Twp. v. Brookshire, 114 Ind. 437, 16 N. E. 132 (witnesses acquainted with the highway and its condition before an improvement, and experienced in improving and maintaining highways, may give their own opinion as to the character of culverts, fills, and the amount of graveling necessary to render the road in good repair). * Thus, a. witness cannot testify as to whether a dwelling house de- stroyed by fire was in good repair. Its condition as a, whole is not observable except upon examination, and therefore does not come within the rule laid down in the cases in the preceding note. There might well be wide differences of opinion as to what would con- stitute good repair. It should be described in detail, and the jury permitted to determine its condition. McMahon v. Dubuque, 107 Iowa, 62, 77 N. W. 517. But in Van Gent v. Chicago, M. & St. P. R. Co. 80 Iowa, 526, 45 N. W. 913, an experienced brakeman was allowed to testify that the platform of a caboose was in bad condition and insufficient, where he had made an examination, and his conclusions were based on difference, explained to him, between the car in question and others. 8 An expert may be asked "what was the condition of the fastenings of the vessel, as to safety," for this is a subject of science and ex- perience, not of common knowledge. Moore v. Westerveldt, 27 N. Y. 234, 25 How. Pr. 277 (approved in Eastern Transp. Line v. Hope, 95 U. S. 297, 24 L. ed. 477). So, also, as to fitness of place to store cheese. Rust v. Eckler, 41 N. Y. 488, opinion by Woodruff, J., at p. 495. But Daniels, J., deemed that the question did not call for the witness's opinion. Even undei the present somewhat stricter rules an expert's opinion could be taken by an hypothetical question. CONDITION OF PERSONS, PLACES, AND THINGS. 347 Allowing an officor familiar with firearms to answer that the barrel of a pistol was cold, and that there was no indication that it had been fired, was approved in People v. Driscoll, 107 N. Y. 414, 420, 14 N. E. 305. And in Meyers v. State, 14 Tex. App. 35, 48, a prosecu- tion for assault, a witness experienced in the use of firearms was allowed to state that he had inserted his finger into the muzzle of defendant's gun, and that when withdrawn the finger was wet and black, from whicli, in his opinion, the gun must have been recently discharged. See also Wynne v. State, 5G Ga. 113, 118, where such a, witness was allowed to express his opinion whether cartridges had been punctured by snapping them before they were fired. Opinions of men experienced in the business, upon the question whether fruit shipped a specified distance and under specified circumstances, and arriving in a certain condition, was in proper condition when shipped, were allowed in Griffin v. Joannes, 80 Wis. 601, 50 N. W. 785. And in Hewes v. German Fruit Co. 106 Cal. 441, 39 Pac. 853, a witness who had testified as to the condition in which he found raisins examined by Iiim was allowed to testify that the examination made by him was made in the usual way in which such examinations are made by experts. But the opinion of a witness as to the comparison of a track the surface of which is alleged to be uneven so as to endanger walking thereon by employees, with those of other railroad companies in tlie state generally, was held inadmissible in Louisville & N. E. Co. v. Chaffin, 84 Ga. 519, 11 S. E. 891. In Leyden v. New York C. & H. E. E. Co. 55 Hun, 114, 8 N. Y. Supp. 187, it was held that the jury might say of their own knowledge that a once properly constructed fence of sufficient height and strength to turn cattle might be deemed insufficient and inadequate when per- mitted to remain in a, broken condition in places, leaving a barrier less than 3 feet in height; and that it was not necessary to produce expert witnesses to prove that fact. i. What witness observed. — A witness experienced in the Tise or care of things of a nature to require special care may be asked if he observed anything rendering the place where they were kept unfit for the purpose; for this does not call for an opinion, but an observation of fact.^ lEust V. Eckler, 41 N. Y. 488, opinion of Daniels, .J., at p. 493 (Wood- ruff, J., deemed the question proper even as calling for an opinion). A witness may testify that certain shoes appeared as if they had been recently washed. Com. v. Sturtivant, 117 Mass. 122, 138, 19 Am. Rep. 401 (trial of an indictment for murder; a leading case). 348 BEIEF ON FACTS. 5. Combining testimony of several witnesses. Evidence as to the condition of a particular place or thing- may be made out by proving by one witness that at a specified time he pointed out the identical place or thing to another, and then proving by the latter the condition at the time it was so pointed out.* 1 Hirsch v. Buffalo, 21 N. Y. Week. Dig. 312, Affirmed it seems, but with- out opinion, in 107 N. Y. 671, 14 N. E. 608. For other illustrations of this principle, see Fobgotten Fact; Iden- tity. 6. Condition at another time or place. a. In general. — Evidence of the condition of a thing or place at a time prior* or subsequent^ to the time at which the con- dition of the thing or place is a material fact, as bearing on the probable condition at that time, is incompetent unless preceded by prima facie proof that no change has taken place in the mean- time ; ' or unless the condition is of such character that it maj be presumed that there has been no change during the interval.* For cases ruling on the competency of evidence of condition, at another place, see note.^ 1 For instances of cases where such evidence was admitted within this^ rule, see Baltimore & Y. Turnp. Road v. Parks, 74 Md. 282, 22 Atl. 399; Swadley v. Missouri P. R. Co. 118 Mo. 268, 24 S. W. 140; The Oriental v. Barclay, 16 Tex. Civ. App. 193, 41 S. W. 117; Hunt v. Dubuque, 96 Iowa, 314, 65 N. W. 319; Elster v. Seattle, 18 Wash., 304, 51 Pac. 394; Erickson v. Barber Bros. 83 Iowa, 367, 49 N. W. 838; Rockford City R. Co. v. Blake, 173 111. 354, 50 N. E. 1070, affirming 74 111. App. 175; Martin v. Richards, 155 Mass. 381, 29' N. E. 591. According to Woolsey v. EUenville, 84 Hun, 236, 32 N. Y. Supp. 543, evidence of the condition of a sidewalk, gutter, and culvert before- the time of the accident, offered to show the condition of the locits in quo at the time of the injury, is competent. 8 Green v. Ashland Water Co. 101 Wis. 258, 43 L.R.A. 117, 77 N. W. 722; Jones v. New York, N. H. & H. R. Co. 20 R. I. 210, 37 Atl. 1033; The Edwin, 87 Fed. 540. 8 In the following cases the evidence was held to have been properly admitted within this rule; Sievers v. Peters Box & Lumber Co. 151 Ind. 642, 662, 50 N. E. 877, 52 N. E. 399; Schuenke v. Pine River,. 84 Wis. 669, 54 N. W. 1007; Hunger v. Waterloo, 83 Iowa, 559^ COITDITION OF PEESONS, PLACES, AND THINGS. 349 49 N. W. 1028; Birmingham Union E. Co. v. Alexander, 93 Ala. 133, 9 So. 525; Jacksonville & S. E. E. Co. v. Southworth, 135 111. 280, 25 N. E. 1093; Harroun v. Brush Electric Light Co. 12 App. Div. 126, 42 N. Y. Supp. 716; Eoskee v. Mount Tom Sulphite Pulp Co. 169 Mass. 528, 48 N. E. 766; Eosenbaum v. Shoffner, 98 Tenn. 624, 40 S. W. 1086; Ahem v. Steele, 48 Hun, 517, 1 N. Y. Supp. 259 (evidence of condition of hole in pier within two days; and of measurement six months afterward "of the same hole" through which deceased fell, — competent) ; Chicago v. Dalle, 115 111. 386, 5 N. E. 578, 580 (negligence in nonrepair of sidewalk; competent to show the condition at the time of the accident, by proof of its condition a few days — in this case three or four days — before and afterward) ; Mackie v. Central E. Co. 54 Iowa, 540, 6 N. W. 723 (condition of a gate at private crossing existing two or three days after an accident, competent; and in the absence of other evidence it will be presumed that its condition remained unchanged) ; Clancy V. Byrne, 56 N. Y. 129, 15 Am. Eep. 391, with note, reversing 65 Barb. 344 (a rotten plank in a pier will not, for the purpose of charging a lessor with damages for injuries, be presumed to have been in that condition five years previous to the injury caused by It) ; Yates v. People, 32 N. Y. 509, 512, 518 (to prove how much light was thrown by a street lamp, a witness cannot testify to an examination of it made four months afterwards, there being no proof that the structure or condition of the lamp or the fluid used was the same); Holden v. New York C. E. Co. 54 N. Y. 662 (condition of poultry, when ultimately received from a connecting carrier, ad- missible as tending to show its condition five days before, when delivered to such carrier by defendants after delay ) . *Hoyt v. Des Moines, 76 Iowa, 430, 41 N. W. 63. And for instances of cases admitting evidence coming within this rule, see Jessup v. Osceola County, 92 Iowa, 178, 60 N. W. 485; Gulf, C. & S. F. E. Co. V. Johnson, 83 Tex. 628, 19 S. W. 151; Johnson v. St. Paul, 52 Minn. 364, 54 N. W. 735. That it is admissible when the condition is a permanent one in its nature, and not liable to change, see Marston v. Dingley, 88 Me. 546, 34 Atl. 414. Sometimes the intervening time that has elapsed is so short as to pre- clude the probability of any change in the condition; and in such case the evidence is admissible. See, for example, Shippy v. Au Sable, 85 Mich. 280, 48 N. W. 584 (condition of a, crosswalk the morning after an accident which occurred after dark) ; Doyle v. Missouri K. & T. Trust Co. 140 Mo. 1, 41 S. VV. 255 (condition of scaffolding a few hours before an accident) ; Woods v. Long Island E. Co. 11 App. Div. 16, 42 N. Y. Supp. 140 (condition of certain appliances twenty minutes after an accident) ; Lohr v. Philipsburcr, 165 Pa. 109, 30 Atl. 822 (condition of sidewalk two days after an 350 BEIEF ON" FACTS. accident) ; Chicago & N. W. R. Co. v. Gillison, 173 III. 264, 50 N. E. 657 (condition of drawbar of car ten hours after accident). 6 Standard Oil Co. v. Van Etten, 107 U. S. 325, 27 L. ed. 319, 1 Sup. Ct. Rep. 178 (count of lumber at one end of route, competent to contradict count at the other end). Lehigh Zinc & Iron Co. v. Trotter, 42 N. J. Eq. 661, 9 Atl. 694 (con- dition of ore in respect to moisture at the mine not provable by evidence of condition after transportation 62 miles in open car). Reed v. New York C. R. Co. 45 N. Y. 574, overruling 56 Barb. 493 (evi- dence of the bad condition of railroad track half a mile away from the place of accident not admissible). Murphy v. New York C. R. Co. 66 Barb. 125 (the same within a few rods admissible). Belton V. Turner, — Tex. Civ. App. — , 27 S. W. 831 (defective condition of walks in the neighborhood of the place of the accident before the injury admissible to show that the city knew or ought to have known of the defect ) . Haley v. Jump River Lumber Co. 81 Wis. 412, 51 N. W. 321 (an action for personal injuries alleged to have resulted in part from the rough- ness of the railroad roadbed, causing the fastenings of logs upon a car to give way; plaintiff may show that any part of the road over which the train had run on the trip was rough or uneven, but cannot go into proof of the general condition of the road in other respects or in other localities, except upon cross-examination of wit- nesses for the adverse party). Alabama G. S. R. Co. v. Hill, 93 Ala. 514, 9 So. 722 (an action for per- sonal injuries from the derailing of a railroad car by reason of the defective condition of the ties and rails; competent to show that other rails and ties in the neighborhood were also defective). Jacksonville & S. E. R. Co. v. Southworth, 135 111. 250, 25 N. E. 1093 (competent to show the condition of the track over which the train had to pass before reaching the place of the accident). Taylor, B. & H. R. Co. v. Taylor, 79 Tex. 104, 14 S. W. 913 (proper to show the condition of the roadbed immediately before and at the time a, wreck occurred at places other than that of the wreck). Fitzgerald v. Clark, 17 Mont. 100, 30 L.R.A. 803, 42 Pac. 273 (that the existence of a fault in one mineral vein cannot be proved by show- ing a fault in another vein which is claimed to be a continuity of the vein in question, in the absence of a showing of a continuity in the latter fault). Haynes v. Hillsdale, 113 Mich. 44, 71 N. W. 466 (proper to show that portions of a plank walk other than that on which the accident occurred were out of repair, upon the question of notice to the city of the defective condition of the walk at the place where the accident occurred, where the different portions of the walk were built at the same time, and about twenty years before the accident). CONDITION OP PERSONS, PLACES, AND THINGS. 351 Strudgeon v. Sand Beach, 107 Mich. 496, 65 N. W. 616 (proper to show generally defective condition of sidewalk in immediate vicinity of place where plaintiff was injured). Alexandria Min. & Exploring Co. v. Irish, 16 Ind. App. 534, 44 N. E. 680 (evidence as to leak in natural gas company's main at point other than that from which gas claimed to have caused an explosion must have come, but in the same line of pipe, competent to show the- general condition of the pipe). Jessup v. Osceola County, 92 Iowa, 178, 60 N. W. 485 (condition of roads and streams at other places held immaterial upon the condition of an approach to a bridge at which an accident occurred). Ledgerwood v. Webster City, 93 Iowa, 726, 61 N. W. 1089 (in an ac- tion against a. city for personal injuries caused by a loose plank in a sidewalk evidence of other loose planks in that particular part of the walk competent). Texas Trunk R. Co. v. Johnson, 86 Tex. 421, 25 S. W. 417 (an action against a railroad company for injuries to a passenger, caused by the alleged unsafe condition of the roadbed; holding it proper to admit evidence of the general bad condition of the road, and that it is not necessary to coniine the evidence to the place of the wreck of the train causing the injuries complained of). Grant v. Raleigh & G. E. Co. 108 N. C. 462, 13 S. E. 209 (condition of a railroad track at places other than that at which the accident in question happened, not competent upon the condition of the- track at the latter place). Louisville & N. E. Co. v. Henry, 19 Ky. L. Eep. 1783, 44 S. W. 428 (the existence of other holes in defendant's depot platform than the hole by which plaintiff was injured, and that the attention of the station agent had been called to such other holes several weeks before the- accident ) . On an issue involving the degree of light in a tenement house hallway between 4 P. M. and 4:30 P. M. December 13, 1900, it was improper to allow witnesses to testify that they were able to read fine print in this hallway on March 18, 1902. Bretsch v. Plate, 82 App. Div. 399, 81 N". Y. Supp. 868. On the question as to the condition of a, highway at the place of an accident it was proper to ask a, witness how long the highway had been out of repair. Littebrandt v. Sidney, 77 App. Div. 545, 78 N. Y. Supp. 890. i. Laying foundation for the evidence. — Slight evidence of the relative condition at the respective times is sufficient, when necessary, to render the testimony competent, leaving its weight to be determined by the jury.* iNesbit v. Garner, 75 Iowa, 314, 1 L.R.A. 153, 39 N. W. 516 (negligence 352 BEIEF OK FACTS. in condition of highway. Held, that measurement of depth of de- pression some time after the accident was competent, upon such comparison as to afford some data by which to determine what it was at the time of the accident ) . Opinions as to whether the article transported would stand the journey excluded because involving the very question in issue against a carrier. Gutwillig v. Zuberbier, 41 Hun, 361. A witness may properly be allowed to state how often he has been in the habit of seeing a river, for the purpose of laying a foundation for further testimony in reference to changes which have taken place in its course or channel during such time.' iBouvier v. Stricklett, 40 Neb. 792, 59 N. W. 550. 7. Inspection in court. For the purpose of proving the condition of a thing, other than the contents of a document, within the rule as to best and secondary evidence, its production in court is not necessary.' A party may produce it, if he choose,* but in a civil case cannot compel his adversary to do so.' If produced it may be exhibited to the jury, and either party may examine a witness upon it, for the purpose of calling the attention of the jury to details pointed out by the witness,* and of getting the descrip- tion upon the record. 1 Criminal Trial Brief. SMcMurrin v. Rigby, 80 Iowa, 322, 45 N. W. 877 (to the effect that in a civil action for rape the underclothing claimed to have been worn by the victim at the time, and which she testifies is in the same condition, except for having been washed, may be received in evi- dence) ; Bender v. Appelbaum, 123 App. Div. 563, 108 N. Y. Supp. 318 (production of horse). See more fully Civil Trial Brief, 3d ed. 396; Criminal Trial Brief. 3 1 state this in reference to the ruling in Hunter v. Allen, 35 Barb. 42, but doubt its soundness. Groundwater v. Washington, 92 Wis. 56, 65 N. W. 871, however, holds it discretionary with the judge to grant an application for such compulsory inspection. ♦ King V. New York C. & H. E. Co. 72 N. Y. 607. (A hook, the breaking of which caused the injury in issue, may, upon proof of its identity, and that it remains in the same condition as at the time of break- ing, be shown to the jury; and a witness may be asked if he sees flaws or cross cracks in it.) See more fully on this question Civil Trial Brief, 3d ed. 396. And see Handwriting. CONDITION OF PERSONS, PLACES, AND THINGS. 353 8. View by jury. An application to have the jury view a place, whether made under the practice at common law or under the statutes,^ may he- granted if the judge, in the exercise of his discretion, deems it proper and necessary.* But it is not error to refuse a view where the conditions existing at the time in question have been ■changed materially.' 1 For a comprehensive review of the practice generally, see Civil Trial Brief, 3d ed. 401 et seq. « Banning v. Chicago, R. I. & P. R. Co. 89 Iowa, 74, 56 N. W. 277. See also cases cited in note to People v. Thorn, 42 L.R.A. 372. * Henderson & C. Gravel Road Co. v. Cosby, 19 Ky. L. Kep. 1851, 44 S. W. 639; Stewart v. Cincinnati, W. & M. R. Co. 89 Mich. 315, 17 L.R.A. 539, 50 N. W. 852. '9. Experiments. The court may allow experiments or demonstrations to he made in open court, if the question is within the range of ordi- iQary knowledge and experience.* 1 Osborne v. Detroit, 32 Fed. 36. See also note to Leonard v. Southern P. Co. 21 Or. 155, 15 L.R.A. 221, 28 Pac. 887; Civil Trial Brief, 3d ed. 407. 10. Official inspection. An official certificate of inspection pursuant to law is evidence •of the fact of inspection, but not of matters therein stated with- 'Out being required by law, such as safety, etc.* A certificate of voluntary inspection, though official and pursuant to usage of trade, is not evidence of the facts stated in it;* but may be made so by testimony to it and its accuracy by those who made it.' 1 Erickson v. Smith, 2 Abb. App. Dec. 64. Compare The Charles Morgan, 115 U. S. 69, 29 L. ed. 316, 5 Sup. Ct. Rep. 1172 (excluding finding of board of inspectors, as to cause of collision, because made on an investigation only of facts bearing on conduct of an officer). ^ Murray ^. Great Western Ins. Co. 39 Hun, 581, and cases cited ( survey of vessel ) . ■3 United States v. Mitchell, 2 Wash. C. C. 478, Fed. Cas. No. 15,791, ( survey of vessel ) . Abb. Facts — 23. 354 BRIEF ON FACTS. 11. Use of correct photograph or map. A map * or photograph,* if proved to be correct as of the time to which the issue relates,' is competent evidence, even though made for the purposes of the trial.* 1 Curtisg v. Ayrault, 3 Hun, 487, 5 Thomp. & C. 611 ; Missouri, K. & T. R. Co. V. Moore, 4 Tex. App. Civ. Cas. (Willson) 323, 15 S. W. 714; Bunker Hill & S. Min. & Concentrating Co. v. Schmelling, 24 C. C. A. 564, 48 U. S. App. 331, 79 Fed. 263; Com. v. Hourigan, 89 Ky. 305, 12 S. W. 550; Le Beau v. Telephone & Teleg. Constr. Co. 109 Mieh. 302, 67 N. W. 339; Culbertson v. Holliday, 50 Neb. 229, 60 X. W. 853 ; Chicago, E. I. & P. R. Co. v. Buel, 56 Neb. 205, 76 N. W. 571, and cases cited; East Tennessee, V. & G. R. Co. v. Watson, 90 Ala. 41, 7 So. 813; Kankakee & S. R. Co. v. Horan, 131 HI. 288, 23 N. E. 621; Adams v. State, 28 Fla. 511, 10 So. 106. 2 People v. Buddensieek, 103 N. Y. 487, 57 Am. Rep. 766, 9 N. E. 44 (photograph of a fallen building, in prosecution for negligent con- struction) ; Blair v. Pelham, 118 Mass. 420 (photograph of de- fective highway, in action for injuries sustained thereby) ; Church V. Milwaukee, 31 Wis. 512 (photograph of street, »nd premises in- jured by change of grade ) ; Chestnut Hill & S. H. Tump. Co. v. Piper, 15 W. N. C. 55 (photographs of bridges or turnpikes, ob- structing ditch and endangering travel, admitted though it did not show the whole of the ground) ; Locke v. Sioux City & P. R. Co. 46 Iowa, 109 (photograph of bridge defectively constructed, taken after the accident) ; Durst v. Masters, L. R. 1 Prob. Div. 373 (photo- graph of altar and communion table or retable, to show relative positions of articles on it) ; Cozzens v. Higgins, 1 Abb. App. Dee. 451, 33 How. Pr. 436 (photograph of a, cellar from which plaintiff had been excluded by a trespass ) . See also cases in note to Dederichs V. Salt Lake City R. Co. 35 L.R.A. 802. As to effect and conclusiveness of photographs introduced in evidence, see note in 15 L.R.A. (N.S.) 1162. 3 Hollenbeck v. Rowley, 8 Allen, 473 (photographs of rocks and rubbish deposited by trespass; excluded because not properly verified) ; Har- ris V. Quincy, 171 Mass. 472, 50 N. E. 1042 (photographs of side- walk at place where a, person slipped upon rough ice excluded be- cause not showing slipperiness or roughness of the ice ) . See also cases in note to Dederichs v. Salt Lake City R. Co. 35 L.R.A. 802. See also Photographs. A plat purporting on its face to show the location and surrounding* ■.vhere an injury to plaintiff occurred should not be admitted in tvidence, where it is not drawn to a scale, and no claim is made that it is any more than a reasonably correct representation of the loca- tion. Pennsylvania Co. v. Reidy, 72 111. App. 343. CONDITION OF PERSONS, PLACES, AND THINGS. 355 But it is not an objection to the admission of a map or plat as explana- tory of the testimony of a witness who made it from memoranda of a, survey made by him, that it was not made until some time after the survey. Justen v. Schaaf, 175 111. 45, 51 N. E. 695. 4Curtiss V. Ayrault, 3 Hun, 487, 490, 5 Thomp. & C. 611 (reversing judgment for refusal to receive it) ; People v. Jackson, 111 N. Y. 362, 19 N. E. 54 (photographs including figures of men stationed for the purpose of marking position of those who were present at the time of the offense). 12. Use of approximate maps, plans, etc. a. In general. — On an issue involving the situation or con- dition of premises, a map, plan, or diagram, even though such as not to be competent as original evidence, may be used by counsel, in opening, to explain what he intends to prove.'' Such a paper, if proved to be reasonably correct,* according to the object of the proposed testimony,' may be used before the jury to enable a witness to explain to them the facts to which he testifies.* iBattishill V. Humphreys, 64 Mich. 494, 31 N. W. 894, 903. But Hill V. Watkins Water & Sewer Comrs. 77 Hun, 491, 28 N. Y. Supp. 1089, holds it discretionary with the court to allow counsel to ao use a map not then proved or put in evidence. 2 According to Jordan v. Duke, 6 Ariz. 55, 53 Pac. 197, proof of the correctness of a map is not a prerequisite to its introduction, not as substantive evidence, but merely to enable a witness to illustrate his testimony. 3 Calumet River R. Co. v. Moore, 124 HI. 329, 15 N. E. 764 (plan of a contemplated improvement, which the proposed railway would pre- vent, admissible to show the uses of the property affected ) . 4 Clapp V. Norton, 106 Mass. 33 (holding that a plan so used does not thereby become evidence; and its going to the jury room without objection is no ground of exception). b. Reasonable accuracy. — On an issue not involving pre- cise extent or boundaries, as in an action for overflowing lands, a plan of the premises showing the general situation and area is competent, in the discretion of the court, for that purpose, though it be not an accurate survey.* But a calculation of a witness, founded on a map or plan. 356 BRIEF ON FACTS. is not competent unless the map is first shown to be reliable evidence.* 1 Paine v. Woods, 108 Mass. 160, 169, s. P. Barrett v. Murphy, 140 Mass. 133, 144, 2 N. E. 833; Armendalz v. Stillman, 67 Tex. 458, 3 S. W. 678 (map made during low water, not therefore inadmissible on issue as to injury at time of high water). 8 Johnston v. Jones, 1 Black, 209, 225, 17 L. ed. 117, 121. Opinion not admissible without facts. A witness who had gathered in- formation from books, records and interviews, relative to the sol- vency of an association, was not permitted to express an opinion, no facts being disclosed on which his opinion was based. Pioneer Savings & L. Co. v. Peck, 20 Tex. Civ. App. Ill, 49 S. W. 160. CONSENT. 1. TTnexpressed willingness. 2. Presumption and burden of proof. See also Acquiescence; Agreement; Assent; Delivebt; Estoppel; Ratification. 1. Unexpressed willingness. Unexpressed willingness is not equivalent to consent.* IFord V. Ford, 143 Mass. 577, 10 N. E. 474. 2. Presumption and burden of proof. Ordinarily the burden of proving consent is on the one claim- ing consent,* but consent may be presumed in many cases.* Indeed, mere silence may imply consent, if there is a duty to speak,' though the rule is otherwise where there is no duty to speak out.* 1 Goodyear Dental Vulcanite Co. v. Bacon, 151 Mass. 460, 8 L.E.A. 486, 24 N. E. 404 (consent of surety to delivery of bond without signature of principal). CONSIDEEATION. 357 2 Thus a party who allows a surgical operation to be performed is pre- sumed to have employed the surgeon for that purpose, and the bur- den of proof to show lack of consent is on the party alleging it. State use of Janney v. Housekeeper, 70 Md. 162, 2 L.E.A. 587, 16 Atl. 382. And the consent of the mortgagee to the platting of the premises and the donating of streets, alleys, and grounds to the public by the mortgagor, will be presumed from his executing releases and accepting a certain sum per lot. Boone v. Clark, 129 111. 466, 5 L.E.A. 276, 21 N. E. 850. And the consent of executors to a specific legacy is presumed where the legatees are in possession under it. Schley v. Collis, 13 L.K.A. 568, 47 Fed. 250. 8 1 Story, Eq. Jur. 13th ed. § 385; Day v. Caton, 119 Mass. 513, 20 Am. Kep. 347. 4 Ackerman v. True, 175 N. Y. 353, 13 N. Y. Anno. Gas. 206, 67 N. E. 629, reversing 71 App. Div. 143, 75 N. Y. Supp. 695, Knoedler v. Glaenzer, 20 L.R.A. 733, 5 C. C. A. 305, 14 U. S. App. 336, 55 Fed. 896. CONSIDEEATIOK 1. Value. 2. Seal. 3. Bona fide purchaser for value. 4. Disproving nominal consideration. 5. Effect of disproving. 6. Oral evidence to vary writing. 7. Presumption and burden of proof. 8. Executory consideration. 9. Executory agreement. 10. Legal, to displace recital of illegal, consideration. 11. Previous agreement. See also Collaterai, Obai. Agreement; Conteact; Delivebt, 1. Value. Where only a money recovery is sought, a consideration of an indeterminate or exaggerated value, if fairly agreed on by 358 BRIEF ON FACTS. the parties, is sufficient iu law to bind the promisor, though inadequate in fact,* unless the evidence suffices to show fraud. 1 Earl V. Peck, 64 N. Y. 596 ( services for a long time, held sufficient to sustain a promissory note exceeding in amount the value of the services. Judgment for plaintiff in action on note affirmed against defense of inadequacy of consideration) ; Wolford v. Powers, 85 Ind. 294, 44 Am. Eep. 16, and cases cited (note for $10,000 in considera- tion of a father's naming a child after the promisor) ; Tolman v. Ward, 86 Me. 303, 29 Atl. 1081 (that a deed may be supported by evidence of a contemplated marriage as consideration, although money consid- eration is recited). 2. Seal. At common law a seal raises a conclusive presumption of a consideration as between the parties and those claiming under them, even for the purpose of supporting an action on an executory covenant to pay money,^ in the absence of fraud or mistake. Under the American statute, the seal is presumptive evi- dence;^ but is not conclusive* unless the instrument is a re- lease.* 1 Mather v. Corliss, 103 Mass. 568. The latest English authorities pre- fer to state the rule as being that a sealed contract is valid without any consideration. (But a seal is not evidence that the considera- tion was adequate, where the law requires adequacy to be affirma- tively shown. Abbott, Trial Ev. 508.) 2 Home Ins. Co. v. Watson, 59 N. Y. 390, reversing 4 Thomp. & C. 226, 1 Hun, 643; Best v. Thiel, 79 N. Y. 15; Robson v. Dayton, 111 Mich. 440, 69 N. W. 834; Durland v. Durland, 153 N. Y. 67, 47 N. E. 42; Rothschild v. Frank, 14 App. Div. 399, 43 N. Y. Supp. 951; Carey V. Dyer, 97 Wis. 554, 73 N. W. 29. SDuttera v. Babylon, 83 Md. 536, 35 Atl. 64; Pray v. Rhodes, 42 Minn. 93, 43 N. W. 838. See also notes to Ferguson v. Rafferty, 6 L.R.A. 33; Schneider v. Turner, 6 L.R.A. 164, and Velten v. Carmack, 20 L.R.A. 101. 4 Crossley v. Tae Louis, 4 Ben. 510, Fed. Cas. No. 3,436 ; Schmidt v. Her- furth, 5 Robt. 124; Wain v. Wain, 58 N. J. L. 640, 34 Atl. 1068; White V. Richmond & D. R. Co. 110 N. C. 456, 15 S. E. 197; Myron v. Union R. Co. 19 R. I. 125, 32 Atl. 165. Compare Stewart v. Chi- cago & E. L R. Co. 141 Ind. 55, 40 N. E. 67 (that a release may be shown by oral evidence to have been without consideration, although a consideration is recited) ; Hill v. Whidden, 158 Mass. 267, 33 N. CONSIDEEATION. J59 E. 526 (that the recited consideration in a release may be contra- dieted by proof tliat certain notes were given as part of tlie consid- eration, in addition to that mentioned) ; Andrews v. Brewster, 124 N. Y. 433, 26 N. E. 1024 (that a written release of a claim does not cut off proof of an oral promise to make compensation therefor in a will, where the promise is made in consideration of the release) ; Dunn f. Price, 112 Cal. 46, 44 Pac. 354 (that evidence as to the consideration for a release and transfer from two of the vendees of personal property to one claiming under the vendor is admissible in an action by the latter, a vendee of the interest of the original vendee ) . 3. Bona fide purchaser for value. For the purpose of showing that a grantee was a purchaser for valuable consideration, within the protection of the re- cording act, it is enough to produce the deed to him reciting his payment of purchase money.^ Otherwise, of one alleged to be, for valuable consideration, in good faith, a purchaser from a trustee conveying in fraud.* IWood V. Chapin, 13 N. Y. 509, 67 Am. Dec. 62; followed in Hiller v. Jones, 66 Miss. 636, 6 So. 465; Turner v. Howard, 10 App. Div. 558, 42 N. Y. Supp. 335 ; Gratz v. Land & River Improv. Co. 40 L.R.A. 393, 27 C. C. A. 305, 53 U. S. App. 499, 82 Fed. 381. Contra: Lake V. Hancock, 38 Fla. 53, 20 So. 811 (where the court discusses this question at considerable length, citing, distinguishing, and disapprov- ing many cases, particularly Wood v. Chapin). And even though no consideration is mentioned, the burden is on a subsequent purchaser to show that there was none, for the deed itself imports a consideration. Boynton v. Eees, 8 Pick. 329, 332, 19 Am. Dec. 326. 3 Bolton V. Jacks, 6 Robt. 166, 234; Rogers v. Verlander, 30 W. Va. 020, 5 S. B. 847 ; Miller v. Rowan, 108 Ala. 98, 19 So. 9. So, also, of the claim of protection against a mechanic's lien. Bolton v. Johns, 5 Pa. 145, 47 Am. Dec. 404. 4. Disproving nominal consideration. If even a nominal consideration is recited, especially in a sealed instrument, evidence that it was not actually paid does not, without evidence that there was no agreement to pay it, disprove consideration, nor throw the burden on the other party.* In an unsealed instrument, if a nominal consideration is 360 BRIEF ON PACTS. recited as having been paid, evidence that it was not paid nor agreed to be paid throws the burden ,^f proof on the party claiming under it to show that it was agreed to be paid, or that there was some other consideration.* 1 Childs V. Barnum, 11 Barb. 14, affirming 1 Sandf. 58 (saying that "paid" means "paid or to be paid"). 3 Fargis v. Walton, 107 N. Y. 398, 403, 14 N. B. 303 ( tenant's agreement that landlord might enter and repair, held, therefore, revocable). 5. Effect of disproving. When, by reason of disproving the consideration recited in an instrument, the instrument is deprived of its validity as a contract, oral evidence is no longer incompetent to vary the effect sought to be given to it as a license* or admission, un- less there is sufficient evidence to found an estoppel upon its language. 1 Fargis v. Walton, 107 N. Y. 398, 14 N. E. 303. 6. Oral evidence to vary writing. Oral evidence of the actual consideration of a deed may be given,' whether the deed states a greater* or a less* considera- tion ; or a nominal one,* or one of a different nature,* or none at all.° And the same rules are generally applicable to other written instruments.' This, however, cannot be done for the purpose of defeating the operative words of the transfer for which the considera- tion was acknowledged as received,' unless there be also evi- dence of fraud, mistake, or usury or other illegality.* Proving that the deed was only a mortgage is not defeating it within the meaning of this exception.*" ISTor can it be done to impair the remedy of a purchaser under the grantee in the deed, against the grantor, upon the grantor's covenants for title. 1 Prima facie the consideration clause of a deed names the true consid- eration; but it is always open to explanation for almost every pur- pose except to defeat the operative words of the transfer, where no fraud, mistake, or other illegality is shown. Hamaker v. Coons, 117 Ala. 603, 23 So. 655; Hoover v. Binkley, 66 Ark. 645, 51 S. W. 73 j CONSIDERATION. 361 Sullivan v. Lear, 23 Fla. 463, 2 So. 846; Taylor v. Crockett, 123 Mo. 300, 27 S. W. 620; St. Louis, I. M. & S. R. Co. v. Berry, 86 Ark. 309, 110 S. W. 1049; %ence v. Central Acei. Ins. Co. 236 111. 444, W L.K.A. (N.S.) 88, 86 N. E. 104; Ellis v. Lehman, 48 Tex. Civ. App. 308, 106 S. W. 453. And see notes 7 and 8 infra. See also, generally, on this question, cases in notes in 20 L.E.A. 201, and 25 L.R.A. (N.S.) 1194. As to admissibility of parol evidence to show true nature of transaction where recited consideration of a deed is shown not to have been paid, see note in 24 L.R.A. (N.S.) 413. 8 Baker v. Connell, 1 Daly, 469. And that there was no consideration may be shown, see: Crandall v. Willig, 166 111. 233, 46 N. E. 755; Brown v. Brown, 106 Mo. 611, 17 S. W. 640; Baird v. Baird, 145 N. y. 659, 28 L.R.A. 375, 40 N. E. 222; Carter v. Day, 59 Ohio St. 96, 51 N. E. 967. So, nonpayment may be proved, in an action to recover the price. Hebbard V. Haughian, 70 N. Y. 54; Beach v. Packard, 10 Vt. 96, 33 Am. Dec. 185. See also cases in notes in 20 L.R.A. 102 and 25 L.R.A. (N.S.) 1197. And a vendor to whom the land has been reconveyed upon failure to pay the purchase money may show that the consideration recited in the deed to himself was not in fact paid, and that the sole purpose of the reconveyance was to reinvest him with the title to the land. Lan- ier V. Foust, 81 Tex. 186, 16 S. W. 994. 8 Belden v. Seymour, 8 Conn. 304, 21 Am. Dec. 661 ; Casto v. Fry, 33 W- Va. 449, 10 S. E. 799; Jackson v. Lewis, 32 S. C. 593, 10 S. E. 1074; Hattersley v. Bissett, 51 N. J. Eq. 597, 29 Atl. 187 (that considera- tion of natural love and affection and one dollar was in fact services rendered by grantee, the child of the grantor) ; Ferguson v. Harrison, 41 S. C. 340, 19 S. E. 619 (that consideration in deed to grantor's wife reciting love and affection was in fact payment by her of his debts, securing such payment by mortgage on the land) ; Herrin v. Abbe, 55 Fla. 769, 18 L.R.A. (N.S.) 907, 46 So. 183. See also cases in notes, in 20 L.R.A. 103, 105, and 25 L.R.A. (N.S.) 1194, 1198. But in Baum v. Lynn, 72 Miss. 932, 30 L.R.A. 441, 18 So. 428, oral proof of a separate agreement to show that the consideration, which recited that the deed was in settlement and release of the claims of a guar- dian and ward against the grantor, included also release of the ward's claim against the guardian, was excluded. 4 Hitz v. National Metropolitan Bank, 111 U. S. 722, 28 L. ed. 577, 4 Sup. Ct. Rep. 613; Westchester & P. R. Co. v. Broomall, 1 Sadler (Pa.) 587, 18 W. N. C. 44, 3 Atl. 444 (reversing for exclusion) ; Bank of United States v. Housman, 6 Paige, 526, 535 (recital of money does not preclude evidence in support of the deed that the actual consid- eration was love and affection) ; Carty v. Connolly, 91 Cal. 15, 27 Pac. 599 ; Poss v. Huff, 98 Ga. 377, 25 S. E. 447 ; Woolfolk v. Earle, 19 Ky. L. Rep. 343, 40 S. W. 247; Church v. Case, 110 Mich. 621, 68 N. W. 362 BEIKF OX FACTS. 424; Clossen v. Whitney, 39 Minn. 50, 38 N. W. 759; Hattersley v. Bissett, 50 N. J. Eq. 577, 25 Atl. 332 ; Velten v. Carmack, 23 Or. 282, 20 L.R.A. 101, and note 31 Pac. 658. Contra: Burrage v. Beardsley, 16 Ohio, 438, 47 Am. Dee. 382. And in Ogden State Bank v. Barker, 12 Utah, 13, 40 Pac. 765, the recital of a nominal consideration was held conclusive upon the grantor and the grantee as against existing creditors of the grantor attack- ing the deed as fraudulent and as having been made to hinder and delay the collection of the debt. 5 M'Crea v. Purmort, 16 Wend. 460 ( recital of money consideration does not preclude evidence of agreement that consideration was merchan- dise at a price) ; McKinster v. Babcock, 26 N. Y. 378, reversing 37 Barb. 265 (recital of cash; evidence of indemnity against indorsement and future liabilities, competent) ; Groves v. Steel, 2 La. Ann. 480, 46 Am. Dec. 551 (recital, cash; evidence that it was satisfaction of a debt, competent) ; Buford v. Shannon, 95 Ala. 205, 10 So. 263 (recital of cash; evidence of pre-existing debt competent); Cardinal v. Had- ley, 158 Mass. 352, 33 N. K. 575 (recited as being lump sum; evidence that it was to depend on quantity, competent) ; Blazy v. McLean, 129 N. Y. 44, 29 N. E. 6 (recited that deed given as collateral security for debts; evidence that it was in satisfaction of debts, competent). See also cases in note to Velten v. Carmack, 20 L.K.A. 101. «Goodell V. Pierce, 2 Plill, 659; Wallis v. Wallis, 4 Mass. 135, 3 Am. Dec. 210. 'Langan V. Langan, 89 Cal. 186, 26 Pac. 764 (note) ; Holmes v. Horn, 120 111. App. 359 (promissory note) ; Cooper v. Potts, 185 Pa. 115, 39 Atl. 824 (assignment) ; Don Yook v. Washington Mill Co. 16 Wash. 459, 47 Pac. 964 (bill of sale) ; Burke v. Napier, 100 Ga. 327, 32 S. B. 134 (note) ; Zimmerman v. Adee, 126 Ind. 15, 25 N. E. 828 (note) ; Hawkins v. Collier, 101 Ga. 145, 28 S. E. 632 (note) ; Kelley V. Guy, 116 Mich. 43, 74 N. W. 291 (note) ; Luce v. Foster, 42 Neb. 818, 60 N. W. 1027 (indemnity bond to sheriff). See also, for other cases instancing this rule and its exceptions, notes to Ferguson v. EafFerty, 6 L.E.A. 34; Davis v. Evans, 142 N. C. 464, 55 S. E. 344 (promissory note) ; Ivey v. Bessemer City Cotton Mills, 143 N. C. 189, 55 S. E. 613 (contract for services) ; Scanlon v. Northwood, 147 Mich. 139, 110 N. W. 493 (contract for services) ; and Schneider V. Turner, 6 L.R.A. 164. As between the original parties to a note, failure of consideration may be shown by parol. Muir v. Hamilton, 152 Cal. 634, 93 Pac. 857. « Grout V. Townsend, 2 Hill, 554, affirmed in 2 Denio, 336; Blodgett v. Hildreth, 103 Mass. 484, 487; Sterrieker v. McBride, 157 111. 70, 41 N. E. 744; McGee v. Allison, 94 Iowa, 527, 63 N. W. 322; Euggles v. Clare, 45 Kan. 662, 26 Pac. 25. 9 See Illegality. 10 See Defeasakce. CONSIDERATION. 363 7. Presumption and burden of proof. Every written contract is presumed to have been made upon a sufficient consideration,* and the burden is on the party al- leging want of consideration,^ or that the consideration named in the instrument is not the actual consideration.^ 1 Kennedy v. Lee, 147 Cal. 596, 82 Pac. 257; Southern R. Co. v. Blunt, 155 Fed. 496. 2 Grimsrud Shoe Co. v. Jackson, 22 S. D. 114, 115 N. W. 656. 3 Harraway v. Harraway, 136 Ala. 499, 34 So. 836; Strayer v. Dlckerson, 205 111. 25r, 68 N. E. 767. 8. Executory consideration. When the consideration clause is in the nature, not of a receipt, ' but of an executory stipulation, the parties may be deemed to have embodied their actual intention in the writing so as to exclude oral evidence to vary it.* I As, for instance, for payment with a specified thing. Maigley v. Hauer, 7 Johns. 341 (expressed consideration a, ground rent, and a share of grain to be raised. Evidence of oral promise to support, excluded). See also, for other instances of the rule as thus applied : Hilgeman V. ShoU, 21 Ind. App. 86, 51 N. E. 728 and cases cited; Kegisterer V. Carpenter, 124 Ind. 30, 24 N. E. 371; Jackson v. Chicago, St. P. & K. C. K. Co. 54 Mo. App. 636 ; Baum v. Lynn, 72 Miss. 932, 30 L.E.A. 441, 18 So. 428. 9. Executory agreement. If the instrument is not an executed transfer, but a unilateral executory agreement, as, for instance, a guaranty, the recital of a nominal consideration does not exclude oral evidence that the true consideration was a promise which the party has re- fused to perform.* 1 Unger v. Jacobs, 7 Hun, 220 ( reversing judgment for error in exclu- sion). . And that oral evidence is admissible to show that a written guaranty of the payment of a note "for value received" with a waiver of demand, notice, and protest, was given in consideration of an agreement to forbear to sue, see Citizens' Sav. Bank & T. Co. v. Babbitt, 71 Vt. 182, 44 Atl. 71. So, if the instrument is a subscription paper, the recital of a nominal consideration mutually paid does not preclude evidence that it was 364 BRIEF ON FACTS. not paid, for the purpose of defeating the contract before any sub- stantial consideration has arisen under it. Presbyterian Church v. Cooper, 112 N. Y. 517, 3 L.R.A. 468, 20 N. E. 352; Thudium v. Yost, 7 Sadler (Pa.) 306, 20 W. N. C. 217, 11 Atl. 436; Cake v. Potts- ville Bank, 116 Pa. 264, 9 Atl. 302. 10. Legal, to displace recital of illegal, consideration. The statements of an illegal consideration in a written in- strument may be contradicted by oral evidence that the actual consideration was legal, even for the purpose of enforcing the instrument notwithstanding its apparent illegality.^ 1 Roosevelt v. Dreyer, 12 Daly, 370 (pawnbroker's usurious ticket, ex- plained by oral agreement for legal interest only). 11. Previous agreement. The fact that the agreement constituting the actual considera- tion was made some time previous to the deed does not preclude the evidence, if it be shown that it was upon that consideration that the deed was founded.* 1 Hays V. Peck, 107 Ind. 389, 8 N. E. 274. This case goes to the extent of holding that, under the Indiana decisions, and as the necessary con- sequence of holding the consideration clause not conclusive, an oral promise of the grantee to pay a specified encumbrance may be proved in the grantor's action on the covenant against encumbrances. To the same effect: Dobyns v. Rice, 22 Mo. App. 448; Logan v. Miller, 106 Iowa, 511, 76 N. W. 1005; Lowry v. Downey, 150 Ind. 364, 50 N. E. 79; Ballou v. Sherwood, 32 Neb. 666, 49 N. W. 790, 50 N. W. 1131. See also Fall v. Glover, 34 Neb. 522, 52 N. W. 168, holding oral testi- mony admissible to show that the note on which the action was brought was for part of a loan the payment of which the plaintiff had assumed as a part of the purchase price of a place sold him by the defendant. The mere fact that agreements between the parties testified to were made before the execution of the note sued on will not render them inad- missible if they tend to show, even slightly or remotely, the interest of the parties in the execution and acceptance of the note, and that the consideration mentioned therein was not the true consideration, or that the note was without consideration. Hunter v. Lanius, 82 Tex. 677, 18 S. W. 201. Where, in pursuance of a previous parol agreement, a debtor conveys his entire interest in a mine to his creditor in satisfaction of the debt, upon condition that, whenever the creditor has realized sufficient CONSPIEACT. 365 to reimburse himself for the debt and expenses of operating the mine, he shall reconvey to the debtor a portion of the property, parol evidence is admissible to prove the consideration, both of the deed and the parol agreement. Adams v. Lambard, 80 Cal. 426, 22 Pac. 180 CONSPIRACY. Circumstantial evidence. The joint undertaking,* and the unlawful object,* may be shown by circumstantial evidence without direct evidence of conspiracy. lEichl v. Evansville Foundry Asso. 104 Ind. 70, 3 N. E. 633, 635 (letting in declarations of one confederate, as evidence against another) ; Kel- ley V. People, 55 N. Y. 565, 576, 14 Am. Rep. 342, affirming Armsby v. People, 2 Thomp. & C. 157 ; Mussel Slough Case, 5 Fed. 680 ( charging jury that to prove conspiracy alleged, it is not necessary to show that the defendants came together, etc. ) Compare New York Guaranty & I. Co. V. Gleason, 78 N. Y. 503, 7 Abb. N. C. 334. See also cases in notes to People v. McQuade, 1 L.R.A. 273 and Casey v. Cincinnati Typographical Union No. 3, 12 L.R.A. 197. S State V. Walker, 98 Mo. 95, 118, 9 S. W. 646, 11 S. W. 1133; People v. Van Tassel, 156 N. Y. 561, 51 N. E. 274; Ochs v. People, 25 111. App. 379, affirmed in 124 111. 3.99, 16 N. E. 662. As to declarations, etc., see Criminal Trial Brief; and note in 19 L.R.A. 745. As to order of proof, see Ibid, and, Abbott Trial Ev. 191. Slight evidence sufficient to let in declarations, see Criminal Trial Brief; Weidner v. Phillips, 39 Hun, 1. 366 BBIEF ON FACTS. CONSTEUCTIOK 1. Judicial notice. 2. Opinion. n. Matters requiring special knowledge, b. Matters of common observation, i;. Quality of work; direct question. 3. Direct testimony. 4. Inspection. For cognate topics, see Capacity; Caee; Cause; Quality. 1. Judicial notice. Judicial notice may be taken of mode of construction of things in such common use that they may be regarded as form- ing part of the common knowledge of the people.* 1 Brown v. Piper, 91 U. S. 38, 43, 23 L. ed. 200, 202 (ice-cream freezer not novel) ; Richards v. Michigan C. R. Co. 40 Fed. 165; Studebaker Bros. Mfg. Co. V. Illinois Iron & Bolt Co. 42 Fed. 52. Otherwise not. Kaolatype Engraving Co. v. Hoke, 30 Fed. 444. And see State v. Nelson, 52 Ohio St. 88, 26 L.R.A. 337, 39 N. E. 22 (that the court cannot know judicially that a cable ear or horse car is so constructed and operated as to require the same means of protection for operators as is required on electric ears). 2. Opinion. a. Matters requiring special knowledge. — An expert witness * may be asked how a structure of a special kind ought to be built so as to be safe, or so as not to cause injury to person or property.^ But the question should not state a hypothesis for which there is no basis in f act.^ 1 The witness must be qualified to speak as an expert, assuming, of course, that the question is one requiring special knowledge. As instances of witnesses held to be so qualified, see Bonner v. Mayfield, 82 Tex. 234, 18 S. W. 305 (construction of railroad; witness of twenty years' ex- perience competent) ; Bier v. Standard Mfg. Co. 130 Pa. 446, 18 Atl. 037 (elevators; builder of elevators competent) ; Turner v. Haar, 114 Mo. 335, 21 S. W. 737 (building used for manufactory; architects and builders competent); Chicago v. Seben, 165 111. 371, 46 N. E. 244 CONSTRUCTION. 361 (eonstruetion of sewer; one engaged in business eighteen years com- petent) ; St. Louis, A. & T. E. Co. v. Johnston, 78 Tex. 536, 35 S. W. 104 (construction of railroad; civil engineer competent. This case also holds that a witness of large experience as a railroad man, familiar with the railroad in question, and having knowledge of the locality or the place where the accident occurred, although not a civil engineer, was also competent to testify as an expert) ; Brown V. Mohawk & H. R. Co. How. App. Cas. 52, 124 (action for negligence in construction resulting in devastation of plaintiff's grounds in a freshet; judgment reversed for allowing opinion of unqualified wit- ness ) . 2 Conrad v. Ithaca, 16 N. Y. 158, 173 (proper construction of bridge); Neubauer v. Northern P. R. Co. 60 Minn. 130, 61 N. W. 912 (proper construction of ice- tongs) ; Colorado Midland R. Co. v. O'Brien, 16 Colo. 219, 27 Pac. 701 (proper construction of temporary railroad track used for construction train). 3 Thus, an expert cannot be asked whether he knows of any defect in the plan of construction of engines marnfactured by plaintiff, where there is no evidence that the various kinds of engines so manufactured are built in accordance with any uniform plan or design. Witte Iron Works v. Holmes, 62 Mo. App. 372. Experts may testify whether a coal pit was properly or improperly con- structed (Behsmann v. Waldo, 36 Misc. 863, 74 N. Y. Supp. 929) and as to whether gasolene engine which exploded the first day it was used, was properly constructed. (Charter Gas Engine Co. v. Kellam, 79 App. Div. 231, 79 N. Y. Supp. 1019.) /;. Matters of common observation. — But an opinion which is matter of common observation and inference not requiring skill, or as a matter of inference from the facts in evidence, should be excluded.^ 1 Shelley v. Austin, 74 Tex. 608, 12 S. W. 753. Whether it is safe and proper to have draws with gates across the foot path of a bridge when the draw is open is not within the range of competent testimony, even from an expert. Hart v. Hudson River Bridge Co. 84 N. Y. 56. The court says it does not relate to the safety or strength of construction, but is matter of common judgment for the jury. In Lincoln & B. H. R. Co. v. Sutherland, 44 Neb. 526, 62 N. W. 859, an action to recover damages for injuries to lands and crops caused by water in a ravine during a freshet caught by a railroad embankment and thrown back upon plaintiff's lands, the company contended that because there was no expert testimony that the embankment was im- properly constructed, verdict for plaintiff was not justified; but the 368 BRIEF ON FACTS. court held that any person who was acquainted with the ravine, and the manner in which the embankment was constructed, and the man- ner in which it affected the waters collected in the ravine, was compe- tent to state the facts, and that it was for the jury to say, from all the facts and circumstances in evidence, whether or not the embank- ment wag negligently constructed. c. QwnlUy of work; direct question. — An expert may be asked the direct question whether a machine or other structure not within the ordinary knowledge and experience of men gen- erally, in the common walks of life, was built in a good and workmanlike manner;^ whether it was properly constructed;* whether it is of the best kind,' or equal to the best in use;* whether it was safe or faulty for the purposes for which it was being used;' or whether it was constructed as such structures usually are,° and the like; and it may be left for the cross- examination to call for details.' iWard V. Kilpatrick, 85 N. Y. 413, 39 Am. Rep. 674, affirming 9 K. Y. Week. Dig. 342 ( cabinet work ) . So, a witness who has examined buildings in question may, though he be neither a mason nor an expert, testify that in his opinion one of two buildings was built more compactly than the other; or that a wall was not worth covering; that the materials were worth more than the wall. Pullman v. Corning, 9 N. Y. 93, 14 Barb. 174. (Held, not error to allow these questions, justice having been done on the merits. ) In an action on a policy of insuance on "brick buildings," it appeared that the buildings in question were, in part, built of joists, filled in with brick. Held, not improper to allow plaintiff to ask a. builder, ac- quainted with the houses, whether he would consider them, or they would be called, brick buildings. Mead v. Northwestern Ins. Co. 7 N. Y. 530, 537. • Sheldon v. Booth, 50 Iowa, 209, 211 (action for price; defense, breach of warranty. Held, that a "foundry-man and machinist ' is competent to state whether a machine had been properly constructed) ; St. Louis, A. & T. R. Co. V. Johnston, 78 Tex. 536, 15 S. W. 104, that a, civil engineer may testify as to whether a, railroad was properly con- structed at a certain point). S Great Western R. Co. v. Haworth, 39 111. 346, 349 (negligent setting of fire; testimony to opinion that a certain spark arrester was the best known, allowed). 4 Scattergood v. Wood, 79 N. Y. 263, 35 Am. Rep. 515, afiirming 14 Hun, 269 (quality of saw gin; allegation of breach of warranty. Testi- mony, whether it was equal in all respects to the best saw gin then in use, of which the witness had knowledge, allowable). CONSTEUCTIOl^. 369 S Colorado Midland R. Co. v. O'Brien, 16 Colo. 219, 27 Pac. 701 (temporary railroad track used by construction train). Or whether, as constructed and operated, it would be a safe one. Bier v. Standard Mfg. Co. 130 Pa. 446, 18 Atl. 637. « St. Louis, A. & T. R. Co. v. Johnston, 78 Tex. 536, 15 S. W. 104. 'Curtis V. Gano, 26 N. Y. 426 (action for breach of agreement to construct. Judgment reversed for excluding the question until plaintifiF- would offer to prove in what respect it was not so constructed). 3. Direct testimony. A party to a contract for the construction of a structure may, after testifying fully as to the terms of the contract as he claims them to be, be asked whether or not the work has been done in accordance with the terms and specifications of the contract.' 1 Such a question does not call for an opinion, but for facts. Kreuzberger T. Wingfield, 96 Cal. 251, 31 Pac. 109. 4. Inspection. A machine claimed to be imperfect in its construction may be introduced in evidence and operated in court for the pur- pose of showing the principles upon which it works, and where- by an error might be made by persons operating it, while the machine itself was correct.' 1 National Cash Register Co. v. Blumenthal, 85 Mich. 464, 48 N. W. 622. Abb. Facts — ^24. 370 BRIEF ON FACTS. CONTEAOT. 1. Implied. 2. Presumptions and burden of proof. 3. Direct testimony. 4. Witness's understanding. 5. Probability or improbability of transaction. G. Previous similar transactions. 7. Res gestae. 8. Writing not signed. 9. Declarations of agent. 10. Different contract admissible under general deniaL 11. With whom. 12. Ignorance of effect. 13. Contract made merely to influence others. For cognate topics, see Acceptance; Acquiescence; Admissions; AaBNCY? Assent; Collateeal Oeal Aqeeement; Consideeation; Contba- DiCTioN; Conveesation ; Cobbobokation ; Ratification. 1. Implied. A contract may be expressly made, or it may be inferred or implied, when it is found that there is an agreement of the parties and an intention to create a contract, although that intention has not been expressed in terms of contract.^ But a contract cannot be implied without writing, where the law requires a writing.* iJIilford V. Com. 144 Mass. 64, 10 N. E. 516; Minneapolis Mill Co. v. Goodnow, 4 L.K.A. 202, and note (40 Minn. 497, 42 N. W. 356). That mere delivery, without more, of money by one person to another^ is not evidence of the taker's promise to repay it, see Fall v. Haines,^ 65 N. H. 118, 23 Atl. 79. As to services rendered by one member of a family to or for another mem- ber thereof, the presumption is that they are gratuitous; but that presumption may be overcome by proof, either of an express contract, or of a contract inferred from such facts and circumstances as show that both parties contemplated pecuniary recompense other than that naturally arising out of the family relation. Heffron v. Brown, 155 111. 322, 40 N. E. 583; Kloke v. Martin, 55 Neb. 554, 76 N. W. 168; Westcott, V. Westeott, 69 Vt. 234, 39 Atl. 199. For an extended review of all the cases on the subject, see note in 11 L.R.A.(N.S.) 873. CONTEACT. 371 As to implied contract to pay for services to relative not living as part of same family, see note in 1 L.R.A. (N.S. ) 819. As to implied contract to pay for household services where parties are living in illicit relations, the majority of the cases hold that no implied contract exists. Swires v. Parsons, 5 Watts & S. 357; Mc- Donald v. Fleming, 12 B. Mon. 286; Vincent v. Moriarity, 31 App. Div. 484, 52 N. Y. Supp. 519; Walraven v. Jones, 1 Houst. (Del.) 355; Brown v. Tuttle, 80 Me. 162, 13 Atl. 583. But in Viens v. Briclcle, 8 Mart. (La.) 11, it was held that recovery upon an im- plied contract to pay for such services will be allowed where it does not appear that the concubinage was the motive of the parties coming together. And a majority of the cases hold that a woman deceived into the belief that she is married cannot sustain an action for services rendered by her as housekeeper for her supposed husband while she was living with him as his wife. Kobbins v. Potter, 11 Allen, 588; Cooper v. Cooper, 147 Mass. 370, 9 Am. St. Rep. 721, 17 N. E. 892, cited with approval in Ogden v. McHugh, 167 Mass. 279, 57 Am. St. Rep. 456, 45 N. E. 731; Cropsey v. Sweeney, 27 Barb. 310, 7 Abb. Pr. 129. Contra: Higgins v. Breen, 9 Mo. 497; Fox v. Dawson, 8 Mart. (La.) 94. Placing one's child in another's custody has been held not to imply a contract not to reclaim the child. State ex rel. Kearney v. Steele, 121 La. 215, 16 L.R.A. (N.S.) 1004, 46 So. 215. For other cases see note in 16 L.R.A.(N.S.) 1004. 2 Chase v. Second Ave. R. Co. 97 N. Y. 384, 49 Am. Rep. 531. 2. Fresumptions and burden of proof. A person who signs a contract is presumed to know its con- tents and to accept its burdens/ and one who attacks a contract as invalid has the burden of showing its invalidity.* Parties are presumed to contract with reference to the law as declared by the highest courts of the state,' and words in a contract are presumed to have been used with their customary meaning.* So technical terms peculiar to a trade or profession are pre- sumed to have been used with the trade or professional mean- ing.' On an issue involving a waiver of a provision in a con- tract the burden is on the party alleging such waiver.^ So it is a general rule that the plaintiff must establish the contract as alleged by a preponderance of the evidence.' Delivery of a written contract or a deed will be presumed from the fact of its possession, but such presumption may be rebutted or ex- plained.' ILeicher v. Keeney, 98 Mo. App. 394, 72 S. W. 145. 372 BEIEB' ON FACTS. SHorton v. Eohlff, 69 Neb. 95, 95 N. W. 36; Merriman v. Cover, 104 Va. 428, 51 S. E. 817; Stickney v. Hughes, 12 Wyo. 397, 75 Pac. 945, af- firmed on rehearing 13 Wyo. 257, 79 Pac. 922; Watson v. Hazlehurst, 127 Ga. 298, 56 S. E. 459. One who attacks a, contract on the ground of fraud has the burden of establishing the fraud. Moore v. Baker, 65 N. J. Eq. 104, 55 Atl. 106; Pivey v. Pennsylvania R. Co. 67 N. J. L. 628, 91 Am. St. Rep. 445, 52 Atl. 472; Bayles v. Kansas P. R. Co. 13 Colo. 181, 5 L.R.A. 480, 2 Inters. Com. Rep. 643, 22 Pac. 341. And fraud is not to be presumed, but must be established by clear and satisfactory evidence. Edwards v. Story, 105 111. App. 433; Pitten- ger V. Pittenger, 208 111. 582, 70 N. E. 699; First Nat. Bank v. Bue- tow, 123 Wis. 285, 101 N. W. 927; United States v. Trans-Missouri Freight Asso, 24 L.R.A. 73, 4 Inters. Com. Rep. 443, 7 C. C. A. 15, 19 U. S. App. 36, 58 Fed. 58. Where, however, a person signs by mark, being unable to read and write, and there is evidence that he did not understand the instru- ment, or that his signature was procured by fraud, the burden is on the other party to show that the person so signing fully under- stood the contract. Spelts v. Ward, 1 Neb. (Unof.) 177, 96 N. W. 56. s Graves County Water Co. v. Ligon, 112 Ky. 775, 66 S. W. 725. 4 Fitzgerald v. First Nat. Bank, 52 C. C. A. 276, 114 Fed. 474. 5 Seymour v. Armstrong, 62 Kan. 720, 64 Pac. 612. sSessa V. Arthur, 183 Mass. 230, 66 N. E. 804. TBracewell v. Self, 109 111. App. 140; Polstein v. Blauner, 86 N. Y. Supp. 794. SDodd v. Kemnitz, 74 Neb. 634, 104 N. W. 1029; Strough v. Wildere, 119 N. Y. 530, 7 L.R.A. 555, 23 N. E. 1057; Devereux v. McMahon, 108 N. C. 134, 12 L.R.A. 205, 12 S. E. 902; Lewis v. Watson, 98 Ala. 479, 22 L.R.A. 297, 39 Am. St. Rep. 82, 13 So. 570. 3. Direct testimony. A witness may be asked to "state the terms" of an oral agree- ment. It is not necessary to ask him to state what was said.'' And he may be asked as to how he understood a contract to which he is a party.^ But he cannot be asked in terms whether he accepted a propo- sition.' !Nor can he be asked to state with whom his contract was made.* ' Frost V. Benedict, 21 Barb. 247; Bewick v. Butterfield, 60 Mich. 203, 26 N. W. 881; Haight v. Connors, 149 Pa. 279, 24 Atl. 302; Button v. Kneebs, 80 Iowa, 267, 45 N. W. 875. CONTRACT. 373 8 This both to establish the contract, and also to show his good faith in the transaction, which is questioned. Wheeler v. Campbell, 68 Vt. 98, 34 Atl. 35. s Cogshall V. Pittsburg Roller Mill Co. 48 Kan. 480, 29 Pac. 591. He must state the facts from which the conclusion is to be drawn. Ibid. 4 Farmer v. Brokaw, 102 Iowa, 246, 71 N. W. 246. 4. Witness's understanding. A witness may be asked what he understood the parties agreed to in his presence, or what he understood they said;^ or whether there was any agreement or understanding ; subject to cross-examination, and the right to strike out the answer if it expresses an opinion.^ The witness cannot testify to his understanding or opinion of the effect of what was said.' iPrintup V. Mitchell, 17 Ga. 558, 63 Am. Dec. 258. And in Perryman v. Wolffe, 93 Ala. 290, 9 So. 148, testimony as to statements of the par- ties as to the terms of a contract, made in the presence and hearing of both parties a, few minutes after the terms were agreed upon and before the persons present had dispersed, was held admissible, al- though the witness did not hear the contract when made. 2 Sperry v. Baldwin, 46 Hun, 120. That such opinion or conclusion is properly excluded, see E. Goddard & Sons v. Garner Bros. 109 Ala. 98, 19 So. 513. And Durlacher v. Frazer, 8 Wyo. 58, 55 Pac. 306, holds that it is incompetent for a witness to testify that a contract was or was not made, but that he may state what was done, leaving the conclusion for the court or jury. s Ives V. Hamlin, 5 Cush. 534. 5. Probability or improbability of transaction. As to the competency of evidence as having a bearing on the probability or improbability of the transaction in question, lEoe V. Nichols, 5 App. Div. 472, 38 N. Y. Supp. 1100 (habits of maker of note not competent to show that he did or did not execute note in suit); Pettiford v. Mayo, 117 N. C. 27, 23 S. E. 252 (pecuniary cir- cumstances of decedent not competent in an action on note the execu- tion of which by decedent is denied) ; Shrimpton v. Netzorg, 104 Mich. 225, 62 N. W. 343 (evidence as tending to show unreasonableness of contract, and that it was improbable that party adducing proof would knowingly have made it, competent) ; Glessner »-. Patterson, 164 Pa. 224, 30 Atl. 355 (proof that one making claim against decedent's es- 374 BEIEF ON FACTS. tate, for which he has no written obligation, was without property at the time the alleged loan was made, competent) ; Mudgett v. Emer- son, 67 N. H. 234, 30 Atl. 343 (evidence of financial condition of one sued for services rendered, as bearing on the probability of his hir- ing servants, where he claims the services were rendered without expectation of pay) ; Dryer v. Brown, 52 Hun, 321, 5 N. Y. Supp. 486 (evidence of lack of pecuniary means competent against one seelc- ing to recover an alleged loan where the making of the loan is denied ) . 6. Previous similar transactions. In a conflict of evidence as to the nature or terms of a con- tract, the nature and terms of previous transactions between the parties are not competent as bearing on the probabilities of the transaction or question.* But they are competent to aid in interpreting ambiguous language used by the parties.^ IBonynge v. Field, 81 N. Y. 159, affirming 12 Jones & S. 581 (what was done in other transactions would not show what the contract was in reference to this one) ; Groat v. Gile, 51 N. Y. 431 (failure of the buyer to demand, on former sales, a right similar to that claimed in the present one, immaterial) ; Stevens v. McLachlan, 120 Mich. 285, 79 N. W. 627 (notes of similar character held by plaintiff not com- petent where they contain nothing tending to establish defenses to note in suit) ; Graham v. Eiszner, 28 111. App. 269 (former contract not competent ) . And that the nature and terms of other similar transactions between one of the parties to a contract and third persons are inadmissible as to the nature and terms of the transaction in question, see: Evans v. Koons, 10 Ind. App. 603, 38 N. E. 350 (use of stallion); Ham v. Wlieaton, 61 Minn. 212, 63 N. W. 495 (contract of hiring) ; Lucia T. Meech, 68 Vt. 175, 34 Atl. 695; Brunnell v. Hudson Saw Mill Co. 86 Wis. 587, 57 N. W. 364; Palmer v. Hamilton, 15 Ky. L. Rep. 677, 24 S. W. &13; Davis v. Kneale, 97 Mich. 72, 56 N. W. 220; Thompson V. New York L. Ins. Co. 21 Or. 466, 28 Pac. 628; Potts v. Dunlap, 110 Pa. 117, 20 Atl. 413; Roberts v. Dixon, 50 Kan. 436, 31 Pac. 1083; Avery v. Mattice, 29 N. Y. S. R. 706, 9 N. Y. Supp. 166. Compare Gardner v. Crenshaw, 122 Mo. 79, 27 S. W. 612 (that evidence of a prior contract with one person may be competent upon the issue as to a contract with another person, if the other person in spealcing of the latter contract refers to the terms of the former) ; McQuown V. Cavanaugh, 14 Colo. 188, 23 Pac. 341 (that in determining the amount due for services, evidence of a contract made with defend- ant's husband before such service commenced is admissible, where CONTEACT. 375 defendant succeeded to hig business, and it is admitted that the husband, as her agent, continued to pay plaintiff the same rate aa before, and no intimation was made of any change in the contract). -8 Richards v. Millard, 56 N. Y, 574, reversing 1 Thomp. & C. 247. See also Ambiguity; Contradiction; Coeeobobation. 7. Res gestae. When a transaction is disputed, anything said, done, or writ- ten in the presence of the parties, as the immediate, unpre- meditated result of the transaction, is admissible in proof of the fact that the transaction occurred.* 1 Monroe v. Snow, 131 111. 126, 23 N. E. 401; Bassett v. Rogers, 162 Mass. 47, 37 N. E. 772. See also Hooks v. Hays, 86 Ga. 797, 13 S. E. 134 (holding that a statement to a disinterested person by one of the parties to a, contract at the time it was made, and in the presence of the other party, that he had made the contract, is not inadmissible as hearsay ) . _And that declarations so made in the presence of an attorney are not privileged, see Wyland v. Griffith, 96 Iowa, 24, 64 N. W. 673. Otherwise as to acts or declarations made subsequently to the transaction in question. Baxter v. Camp. 71 Conn. 245, 42 L.R.A. 514, 41 Atl. 803 (statement of the promisee, made when giving the contract to a third person for whose benefit the promise was made, that the maker would pay it) ; McDermott v. Centennial Mut. Life Asso. 24 Mo. App. 73 (that subsequent declarations of parties to a contract are not competent to alter or modify the contract, or to explain it, if the rights of third persons are thereby affected ) . -And that subsequent declarations of one of the parties to a contract, evi- denced by two contemporaneous instruments, tending to show that a contract was made at that time different from that evidenced by the instruments, are not competent against the other party. Dallas Nat. Bank v. Davis, 78 Tex. 362, 14 S. W. 706. 8. Writing not signed. In what cases a writing not signed is competent as evidence •of the terms of the contract, see* i Eager v. Crawford, 76 N. Y. 97 (draft of contract, competent as part of the res gestae) ; Freeman v. Bartlett, 47 N. J. L. 33 (unsigned paper made by one, and interlined and returned by the other during negotia- tions, admissible as part of res gestce) ; Lathrop v. Bramhall, 64 N. Y. 365, affirming 5 Thomp. & C. 680, 3 Hun, 394 (memorandum read over, competent to corroborate testimony to oral agreement) ; Hazer 376 BRIEF ON FACTS. V. Streich, 92 Wis. 505, 66 N. W. 720 (that memorandum of terms of contract written by third person, and read over in hearing of both parties and without dissent of either, competent as admission by par- ties) ; Conway v. Mitchell, 97 Wis. 290, 72 N. W. 752 (that memo- randum written by one party_, and submitted to other for signature,, but never signed, competent to show that oral agreement was not within statute of frauds). Compare Kennedy v. Oswego & S. R. Co. 67 Barb. 169 (holding that draft approved, but not signed, was not competent, because not necessary for the purpose of refreshing the memory of a witness) ; Flood v. Mitchell, 68 N. Y. 507 (draft in which unauthorized additions were made, not competent because thereof, and because not made by common agent) ; Mumford v. Whit- ney, 15 Wend. 380, 30 Am. Dec. 60 (copy of proposed instrument taken for the purpose of consulting others, not admissible as evidence of a contract) ; Aguirre v. Allen, 10 Barb. 74, affirmed on other points in 7 N. Y. 543 (broker's memorandum for his own convenience, not competent) ; Gouverneur v. Elliott, 2 Hall, 211 (sealed agreement not validly executed as such) ; Brown v. Markland, 16 Utah, 360, 52 Pac. 597 (instrument made at time of written contract, but ex- pressly stricken out, not admissible as constituting part of contract) ; Thomas v. Nelson, 69 N. Y. 118 (memorandum of agreement to lease, signed by one party only, not conclusive on him, nor excluding oral evidence), s. p., Errico v. Brand, 9 Hun, 654. 9. Declarations of agent. The declarations of an agent, not made in the course of his employment as such, are not competent, either to show that he made a contract,^ or its terms,^ or that a contract made hy him was hroken.' 1 Stone V. Northwestern Sleigh Co. 70 Wis. 585, 36 N. W. 248 ; Shiner v. Abbey, 77 Tex. 1, 13 S. W. 613; Commercial F. Ins. Co. v. Morris, 105 Ala. 498, 18 So. 34. Compare, however, Tufts v. Chester, 62 Vt. 353, 1 9 Atl. 988 ; Ferguson v. McBean, — Cal. — , 35 Pac. 559. Otherwise of declarations made at the time of the alleged contract, and in the course of his employment. Atchison, T. & S. F. E. Co. v. Cam- eron, 14 C. C. A. 358, 32 U. S. App. 67, 66 Fed. 719. 2 Warten v. Strane, 82 Ala. 311, 8 So. 231; Henkel v. Trubee, — Conn. — , 11 Atl. 722; Idaho Forwarding Co. v. Fireman's Fund Ins. Co. 8 L'tah, 41, 17 L.R.A. 586, 29 Pac. 826; Wash v. Gary, 17 Ky. L. Eep. 1066, 33 S. W. 728. Compare, however, Gaither v. Clarke, 07 Md. 18, 8 Atl. 740; and Beaver v. Taylor, 1 Wall. 637, 17 L. ed. 601 (ad- mitting agent's letters as part of the res gestw). Otherwise, however, as to declarations made at the time of the allegeA contract, and in the course of his employment. Murraj' v. Weber, CONTEACT. 377 92 Iowa, 757, 60 N. W. 492; Davis's Sons v. Sweeney, 80 Iowa, 391, 45 N. W. 1040. 8 Memphis & V. R. Co. v. Cocke, 64 Miss. 713, 2 So. 495. 10. Different contract admissible under general denial. Under a general denial of a complaint alleging a contract,* or a denial that the contract was as set forth in the complaint,* the contract really made, or the part which differs from that alleged, is admissible. iGove V. Wooster, Hill & D. Supp. 30 (inversion of place of covenant by mistake of scrivener) ; Trumbull v. Jackman, 9 Wash. 524, 37 Pac. 080 (proof that contract was several and not joint, competent under answer denying making of joint contract, without setting up several contract) ; Ensign v. Hooker, 6 App. Div. 425, 39 N. Y. Supp. 543 (proof of different agreement than the one alleged competent). And that defendant in replevin may, under general denial, show by parol what was the real agreement between plaintiff and a, third person from whom he obtained the property, even though it differs from the writing, see Spooner v. Cummings, 151 Mass. 313, 23 N. E. 839. * Marsh v. Dodge, 66 N. Y. 533, reversing 4 Hun, 278. And see Denial. 11. With whom. On the question whether an oral contract was made with one person or another, it is competent to ask a witness "On the part and behalf, and for whom were the services rendered ?"* But he cannot be asked in terms with whom his contract was made.* Evidence that one was reputed to be the owner of the estab- lishment, and the other was notoriously insolvent, is not com- petent.' ITor are letters written by a corporation, the name of which contains the name of the person with whom the contract is alleged to have been made, admissible to prove the contract, unless it is showa that the two are identical.* 1 Sweet V. Tuttle, 4 N. Y. 465, affirming 10 How. Pr. 40 (for the ques- tion calls for a fact, not a conclusion of opinion). Contra: com- pare Ceedit. 2 Farmer v. Brokaw, 102 Iowa, 246, 71 N. W. 248. 8 Trowbridge v. Wheeler, 1 Allen, 162. 4roushee v. Owen, 122 N. C. 360, 29 S. E. 770. 378 BEIEF ON FACTS. 12. Ignorance of effect. It is not competent, for the purpose of impairing the lega] ■effect of the terms of a contract, to show that the party claim- ing the right was ignorant when he made the contract that it would confer such right.* 1 Groat V. Gile, 51 N. Y. 431 (purchase of sheep, as including wool). 13. Contract made merely to influence others. Whether it is competent to show that a written contract was not intended to bind the party, but only to influence third per- sons to whom it might be shown, see * lAlmon V. Hamilton, 100 N. Y. 527, 3 N. B. 580 (composition deed with secret agreement) ; Hickler v. L«ighton, 70 N. Y. 610 (receipts signed for purpose of showing to another) ; Grierson v. Mason, 60 N. Y. 394, affirming 3 Thomp. & C. 185, 1 Hun, 113 ; Willse v. Whitaker, 22 Hun, 242, 244; Delamater v. Bush, 63 Barb. 168; Anthony v. Har- rison 14 Hun, 198, 213, affirmed in 74 N. Y. 613; Hutton v. Maines, 68 Iowa, 650, 28 N. W. 9. OONTRADICTIOK 1. Contradicting witness. a. In general. b. Own witness. ^. Usage to contradict contract. See also Rebuttal; Tampering. As to the right to corroborate after contradiction, see Cokeoboration. 1. Contradicting witness. a. In general. — An adverse witness* may, on proper founda- tion being laid,^ be contradicted or impeached by cross-exam- CONTKADICl'ION. 3Y9 ination,^ by proof of his statements* or acts" inconsistent witli his testimony on the trial, by proof of hostility,^ bias'' or inter- est/ or by proof as to character or reputation affecting the credibility of his evidence.^ 1 When a party to the suit is the witness sought to be contradicted, the rule is generally stated to be that he may be contradicted witliout any foundation beii.g laid therefor, for the reason, it would seem, that the admissions of a party are always admissible in evidence against him. See, for example, Kennedy v. Wood, 52 Hun, 46, 4 N. Y. Supp. 758; Coffin v. Bradbury, 3 Idaho, 770, 95 Am. St. Rep. 37, 35 Pae. 715; Owens v. Kansas City, St. J. & C B. R. Co. 95 Mo. 169, 8 S. W. 350. See also Civil Trial Brief, 3d ed. pp. 241 et seq. 8 For the rule that a foundation must be laid before a witness can be con- tradicted, and as to how it may be laid, see Barkly v. Copeland, 74 Cal. 1, 15 Pac. 307; Ashton v. Ashton, 11 S. D. 610, 79 N. W. 1001; Ayers v. Watson, 132 U. S. 394, 33 L. ed. 378, 10 Sup. Ct. Rep. 116; Bogart V. Delaware, L. & W. R. Co. 72 Hun, 412, 25 N. Y. Supp. 175. See also Civil Trial Brief, 3d ed. pp. 238 et seq. 3 Freeman v. Hensley, — Cal. — . 30 Pac. 792; Robinson v. Graver, 88 Iowa, 381, 55 N. W. 492; Southern Kansas R. Co. v. Michaels, 49 Kan. 388, 30 Pac. 408; Watts v. Stevenson, 105 Mass. 518, 43 N. E. 497; Beuerlien v. O'Leary, 149 N. Y. 33, 43 N. E. 417; Levine v. Car- roll, 121 111. App. 105. See also Civil Trial Brief, 3d ed. pp. 228 et seq. 4 For cases of contradiction by proof of inconsistent statements, see Jordan V. McKinney, 144 Mass. 438, 11 N. E. 702; Spohn v. Missouri P. R. Co. 101 Mo. 417, 14 S. W.,880; Palmeri v. Manhattan R. Co. 60 Ilun, 579, 14 N. Y. Supp. 468; Immaculate Conception Church v. ShefFer, 88 Hun, 335, 34 N. Y. Supp. 724. See also Civil Trial Brief, 3d ed. pp. 246 et seq. 5 Daniels v. Weeks, 90 Mich. 190, 51 jST. W. 273; Young v. Johnson, 123 N. Y. 226, 25 N. E. 363; Allin v. Whittemore, 171 Mass. 259, 50 N. E. 618; Barry v. People, 29 Colo. 395, 68 Pac. 274. See also Civil Trial Brief, 3d ed. p. 251. 6 Lamb v. Lamb, 146 N. Y. 317, 41 N. E. 26; Battishill v. Humphreys, 64 Mich. 5] 4, 38 N. W. 581. See also Civil Trial Brief, 3d ed. p. 256. 7 Preferred Acci. Ins. Co. v. Gray, 123 Ala. 482, 26 So. 517; Tolbert v. Burke, 89 Mich. 132, 50 N. W. 803. See also Civil Trial Brief, 3d ed. p. 257. • Elliott v. Luengene, 20 Misc. 18, 44 N. Y. Supp. 775; Jernigan v. Flow- ers, 94 Ala. 508, 10 So. 437. See also Civil Trial Brief, 3d ed. p. 257. 9 Civil Trial Brief, 3d ed. p. 258, where this question is treated at great length. Written statements by a witness out of court may be used for the purpose 380 BRIEF ON PACTS. of impeaching or contradicting him, without first calling his atten- tion to them. Hanlon v. Elirich, 80 App. Div. 359, 80 N. Y. Supp. 692. A witness cannot be impeached by showing inconsistent statements out of court unless he is first interrogated concerning them. Geiser Mfg. Co. V. Taylor, 55 App. Div. 638, 67 N. Y. Supp. 30. Nor can a witness be impeached by what was said or done by another person in his presence. Stewart v. Long Island E. Co. 54 App. Div. 623, 66 N. Y. Supp. 436, affirmed without opinion in 166 N. Y. 604, 59 N. E. 1130. h. Own witness. — One may contradict his own witness, on a question involved in the issue,^ or on a question of tampering.^ 1 The rule prohibiting a party from impeaching his own witness only ap- plies in three cases, viz: (1) The calling of witnesses to impeach the general character of the witness; (2) the proof of prior contradictory statements by him; and (3) a contradiction of the witness by another, where the only effect is to impeach, and not to give any material evi- dence upon any issue in the case. Coulter v. American Merchants' • Union Exp. Co. 56 N. Y. 585; Becker v. Koch, 104 N. Y. 394, 10 N. E. 701. Approved in 22 Am. Law Rev. 455, with the qualification that proof of contradictory statements ought to be allowed. Compare Hurley v. State, 46 Ohio St. 320, 4 L.R.A. 161, 21 N. E. 645, holding that such contradictory statements cannot be proved against the witness's denial of making them. In Burgess v. New York C. & H. R. R. Co. 34 Hun, 233, s. c. more fully, 20 N. Y. Week. Dig. 249, affirmed, it seems, without opinion, in 98 N. Y. 641, contradiction as to the motives of the witness in this trans- action in issue was held competent. See also, for a full treatment of this question. Civil Trial Brief, chap. IX. e, and note in 21 L.R.A. 418. zComstock v. Handy, 23 N. Y. Week. Dig. 547. 2. Usage to contradict contract. Evidence of a usage or custom is inadmissible to enlarge or diminish or affect the legal rights and liabilities of the par- ties, iixed by their written agreement in which there is no ambiguity.* And on the question whether an alleged contract was made, evidence that its terms were unusual is incompetent if it is in writing.* If oral, evidence of a usage known to both parties is com- petent.* iKuhl V. Long, 102 Ala. 563, 15 So. 267; Smith v. Provident Sav. Life Assur. Soc. 13 C. C. A. 284, 31 U. S. App. 163, 65 Fed. 765; Emery COSrVEESATION. 381 V. Atlanta Real Estate Exch. 88 Ga. 321, 14 S. E. 556; Bloomington Canning Co. v. Bessee, 48 111. App. 341 ; Capital Gas & Electric Light Co. V. Gaines, 20 Ky. L. Eep. 1464, 49 S. W. 462; Richard v. Haebler, 36 App. Div. 94, 55 N. Y. Supp. 583 ; Vollrath v. Crowe, 9 Wash. 374, 37 Pao. 474. 2 Bean ». Carleton, 51 Hun, 318. 3 Miller v. Insurance Co. of N. A. 1 Abb. N. 0. 470. As to the competency of evidence of usage or custom to explain an ambi- guity, create a contract, etc., see Ambiguity; Usage. CONVERSATIOIT. 1. Interpreted conversation. 2. Signs. 3. Denial and rebuttal. 4. Fact of conversation does not let in substance. 5. Calling for entire. See also Admissions; Telephone. As to understanding of witness, see Belief. 1. Interpreted conversation. A conversation with a party ignorant of the language, being had through the medium of his friend and agent as an inter- preter in his presence, that which was said to and by the interpreter in English is competent against the party.' 1 Wright V. Maseras, 56 Barb. 521 ; Nadau v. White River Lumber Co. 76 Wis. 120, 43 N. W. 1135; Miller v. Lathrop, 50 Minn. 91, 52 N. W. 274 (that such a communication is not hearsay). Contra: Plymouth Coal Co. V. Kommiskey, 116 Pa. 365, 9 Atl. 646; Highstone v. Bur- dette, 61 Mich. 54, 27 N. W. 852, holds them inadmissible if it is not shown or offered to be shown that they were communicated to the other person. 382 BRIEF ON FACTS. As to tlie admissibility of evidence given througii interpreter, see note to Com. V. Vose, 17 L.R.A. 813. 2. Signs. Dying declarations made by pressing the hand in answer to inquiry when unable to speak may be proved.^ 1 Com V. Casey, 11 Cush. 417, 59 Am. Dec. 150. 3. Denial and rebuttal. Testimony merely denying that any such conversation ever occurred, given in contradiction of a specified interview^, does not let in evidence, in rebuttal, as matter of right, of another such interview at another time.* 1 Marshall v. Davies, 78 N. Y. 414, 420, 58 How. Pr. 231. And Miller v. Cook, 124 Ind. 101, 24 N. E. 577, holds that one who testifies that he had no conversation with a witness at the time the latter has stated cannot, without asking him the proper impeaching question, testify as to a conversation had with him at a subsequent date, giving the substance thereof, as that would be to make original evidence his own declarations made in distinct and different conversations. 4. Fact of conversation does not let in substance. An accidental disclosure of the nature of a communication, called out by a question only intended to elicit the fact of such a communication, is not necessarily a ground for allowing the adverse party to call for the consequent conversation.* iWinchell v. Latham, 6 Cow. 682; Uhe v. Chicago, M. & St. P. K. Co. 3 S. D. 563, 54 N. W. 601. 5. Calling for entire. The introduction of a part of a conversation renders admis- sible as much of the remainder as tends to explain or qualify what has been received.* 1 Lamwersick v. Boehmer, 77 Mo. App. 136; Louisville & N. R. Co. v. Earl, 94 Ky. 368, 22 S. W. 607; Schwartz v. Wood, 51 N. Y. S. R. 4, 21 N. Y. Supp. 1053; Gibson v. State, 91 Ala. 64, 9 So. 171. So held, even though it may contain self-serving statements. Emery v. State, 92 Wis. 146, 65 N. W. 848. COPIES. 88i COPIES. 1. Copy proceeding from adverse party. 2. Copy of filed or recorded instrument. a. In general. b. Sufficiency of foundation. c. Instrument not entitled to record. d. Effect of statute making copy equal evidence. e. Form of authentication. f. Defect in authentication superseded by oath to the truth of copy. 3. Imperfect or erroneous copy. 4. Oral, to vary. 5. Copies made by mechanical means as originals. 6. Copy of lost or destroyed will. For the distinction between sworn, verified, and exemplified copies, see Abbott, Trial Ev. 536; also 1 Abbott, New Pr. & Forms, 80. 1. Copy proceeding from adverse party. A document is admissible, though a copy, if it was received from the adverse party to be acted on.^ 1 Moore v. Belloni, 10 Jones & S. 184. So held of copies served of affidavits on file, when offered in evidence in the same action. Jackson ex dem. Wood V. Harrow, 11 Johns. 434. And in Purser v. Eagle Lake, Land & Irrig Co. Ill Cal. 139, 43 Pac. 523, a certified copy of a resolution of the board of directors of a corporation, attested by the signatures of the president and secretary under the corporate seal, reciting its unanimous adoption at a special meeting, and especially ratifying and confirming a note and mortgage of the corporation, furnished to the holder of the mortgage by the secretary, was held admissible, in the absence of evidence to prove that it was not the act of the corporation, to show the binding force of the mortgage. Otherwise of a copy offered as evidence in another action. Kellogg v. Kellogg, 6 Barb. 116. 2. Copy of filed or recorded instrument. a. In general. — An instrument recorded under statutes al- lowing record, but not making the record evidence equally with the original, cannot be proved by the record, nor by a certified copy of the record, without first laying a foundation for it as secondary evidence.' An instrument filed under statutes not making a certified 384 BEIEP ON FACTS. copy evidence cannot be proved by a certified copy, witliout first laying such foundation.* But where a party offering the copy did not have custody or control of the original, and had no right thereto, the copy is competent ■without the usual preliminary proof to secure the right to read it as secondary evidence.* 1 State V. Penny, 70 Iowa, 190, 30 N. W. 561 (false pretenses, the falsity consisting in representation that there was no prior chattel mortgage on the property). The Iowa statute (Code, § 3702) makes duly cer- tified copies evidence of equal credibility in all cases where the record would be admissible, but does not make the record admissible equally with the original. But McCollister v. Yard, 90 Iowa, 621, 57 N. W. 447, holds that the record of m, deed of adoption is not admissible under § 3702, as it is not a paper belonging to a public office, or ii paper required by law to be kept therein, but is a private contract required to be recorded, and such record, although open to inspection' by the public, is not public in the sense that the paper itself must remain lodged in a public office. Church of Jesus Christ, L. D. S.' v. Church of Christ, 60 Fed. 987 (certified copy from recorder's office, of a deed, not competent where original is not produced, and there is no proof of its loss, or that it is not in possession of party ofi'ering copy). Farrow v. Nashville, C. & St. L. R. Co. 109 Ala. 448, 20 So. 303 (certified copy of deed not competent unless original lost or destroyed or out of control or custody of the party offering copy). But under an Ala- bama statute making certified copies of records competent unless the court on motion requires production of the original, a certified copy of an instrument, required by another statute to be signed and recorded in the office of the probate judge, is competent where the court does not order the production of the original; and it makes no difference that it bears no certificate of acknowledgment, if that is not required as condition precedent to filing and recording. Schwartz V. Baird, 100 Ala. 154, 13 So. 947 (consent of husband to wife en- gaging in business ) . Bell V. Kendrick, 25 Fla. 778, 6 So. 868 (an original is best evidence, and must be introduced if in custody or control of party offering copy, and he cannot use copy until he shows affirmatively that original i^ not in his custody or control). Hayden v. Mitchell, 103 Ga. 431, 30 S. B. 287 (copy from proper registry of paper required to be recorded competent on proof of loss or de- struction of original). Phenix Ins. Co. v. Mechanics' & T. Sav. Loan & Bldg. Asso. 51 III. App. 479 (copy not competent unless it is shown that original cannot he procured). COPIES. 385 Pierce v. Gcorger, 103 Mo. 540, 15 S. W. 849 (neither record of deed nor certified copy competent without first accounting for nonproduction of the original ) . Thams v. Sharp, 49 Neb. 237, 68 N. W. 474 (certified transcript of record of duly recorded deed competent with same force and effect as original when original is shown to have been lost or not to belong to or be in control of party seeking to use it). Oxsheer v. Watt, 91 Tex. 402, 44 S. W. 67 (certified copy of chattel mort- gage competent when certificate of clerk of county court attached thereto shows original on deposit in his office). Compare Gooch v. Addison, 13 Tex. Civ. App. 76, 35 S. W. 83 (holding copy competent where the parties expressly waived filing of the original, and agreed that copy might be used if original was destroyed). As to what is a sufficient waiver for this purpose, see Collins v. Durward, 4 Tex. Civ. App. 339, 23 S. W. 561. But such waiver will not deprive the parties of the right to object to any deed because not duly regis- tered or otherwise properly proved. Kobertson v. Du Bose, 76 Tex. 1, 13 S. W. 309. SBissell V. Pearce, 28 N. Y. 252; Fellows v. Van Hyring, 23 How. Pr. 230 (chattel mortgage on file not provable by clerk's certificate to copy). 3 Kenosha Stove Co. v. Shedd, 82 Iowa, 540, 48 N. W. 933; Frank v. Renter, 115 Mo. 517, 22 S. W. 812; Florence Land, Min. & Mfg. Co. v. Warren, 91 Ala. 533, 9 So. 384; Blalock v. Miland, 87 Ga. 573, 13 S. E. 551; Eby v. Winters, 51 Kan. 777, 33 Pac. 471; Buck v. Gage, 27 Neb. 306, 43 N. W. 110. Especially where lie has called upon the proper persons for its production, and they do not comply with the demand. Keller v. Ashford, 133 U. S. 610, 33 L. ed. 667, 10 Sup. Ct. Rep. 494. Contra, however, in Florida. Bell v. Kendrick, 25 Fla. 778, 6 So. 868 (to effect that under art. 16, § 21, of the state Con- stitution a party offering copy must in any case account for non- production of original). b. Sufficiency of foundation. — To secure the riglit to read secondary evidence of recorded instruments within the rule in the preceding section, it is sufficient if the facts and circum- stances reasonably satisfy the court that the original is lost or destroyed, or is not within the custody or control of the party desiring to use it' iKleimann v. Gieselmann, 114 Mo. 437, 21 S. W. 796 (lost deed) ; State v. Flanders, 118 Mo. 227, 23 S. W. 1086 (testimony of party offering copy that person executing original had snatched it from his hand and torn it up) ; Southall v. Southall, 6 Tex. Civ. App. 694, 26 S. W. 150 (attorney's affidavit that neither he nor client can procure the Abb. Facts — 25. 386 BEIEF ON FACTS. original) ; Western XJ. Teleg. Co. v. Hearne, 7 Tex. Civ. App. 67, 2& S. W. 478 (holding sufficient suppletory affidavits in words of stat- ute, although they are not filed before trial). Compare Bauman v. Chambers, — Tex. Civ. App. — , 28 S. W. 917 (proof that original is on file in pending case in another county not enough without proof that case has not been finally disposed of, or that leave to withdraw it from file could not be obtained) ; Western Union Beef Co. v. Thurman, 17 C. C. A. 542, 30 U. S. App. .516, 70 Fed. 960 (claiming merely that original is in possession of counsel for opposite party, not enough without proof that he was such counsel, or that he con- trolled the case to such an extent that his possession could be treated as that of the party ) . c. Instrument not entitled to record. — A certified copy of a recorded instrument which by reason of some defect was not entitled to be recorded cannot be received in evidence.' 1 Union P. R. Co. v. Eeed, 25 C. C. A. 389, 49 U. S. App. 233, 80 Fed. 234; Foxworth v. Brown Bros. 114 Ala. 299, 21 So. 413; Parker v. Cleveland, 37 Fla. 39, 19 So. 344. Even on proper affidavit of the loss of the original. Hill v. Taylor, 77 Tex. 295, 14 S. W. 360. But according to Apel v. Kelsey, 47 Ark. 413, 2 S. W. 102, the certified copy is admissible if there has been a curative statute validating such defective instruments. A copy of the register of a deed not entitled to be registered because not complying with the statute, is not admissible in evidence. Bower v. Cohen, 126 Ga. 35, 54 S. E. 918. If the instrument has not been acknowledged so as to entitle it to record a copy made by the county clerk cannot be read in evidence. Belcher V. Polly, 32 ky. L. Rep. 623, 106 S. W. 818. But it may be proved according to the common law if material to any issue in the case. Heintz v. Thayer, 92 Tex. 661, 50 S. W. 929, 51 S. W. 640. d. Effect of statute making copy equal evidence. — A stat- ute making a certified copy evidence equally with the original' does not preclude showing that such copy is erroneous in spe- cial particulars in which it departs from the original.^ 1 For instances of cases admitting copies under such statutes, see : Dawson V. Parham, 55 Ark. 286, 18 S. W. 48; Apel v. Kelsey, 47 Ark. 413, 2 S. W. 102; Gethin v. Walker, 59 Cal. 502; Anthony v. Chapman, 65 Cal. 73, 2 Pac. 889; Weaver v. McKay, 108 Cal. 546, 41 Pac. 450; Mills V. Snypes, 10 Ind. App. 19, 37 N. E. 422; Bowersock v. Adams, COPIES. 387 55 Kan. 685. 41 Pac. 971; Stinson v. Geer, 42 Kan. 520, 22 Pae. 586. 2 Campbell v. Laclede Gas Co. 119 U. S. 445, 30 L. ed. 459, 7 Sup. Ct. Eep. 278. e. Form of authentication.- — As to the form of authentica- tion to render copy admissible, see* 1 1 Abbotts, New Pr. & Forms, 727 et seq. See also Huntoon v. O'Brien, 79 Mich. 227, 44 N. W. 601 (that a certificate that copies are true copies as compared by the officer sufficiently shows that they were compared with the originals) ; Lasater v. Vaif Hook, 77 Tex. 650, 14 S. W. 270 (that a copy of a deed offered in evidence is not shown to be an examined copy by the fact that the witness producing it testifies that it is a true copy, and states that he had compared it with a certified copy taken from a, record of the deed, the copy from the record being better evidence than that produced) ; Wiggins Ferry Co. v. Illinois & St. L. E. & Coal Co. 163 111. 238, 45 N. E. 285 (testimony of a witness that an uncertified paper purporting to be a copy of a public record corresponds with a copy formerly made by him, and that it was furnished as a certified copy by the custodian of the record, not sufficient to prove such copy and make it admissible in evidence) ; Garden City Sand Co. v. Miller, 157 111. 225, 41 N. E. 753 (authentication of copy from the records, by deputy register of deeds signing as deputy, sufficient when deputy authorized to act in case there is no register who can act) ; Drumm v. Cessnum, 58 Kan. 331, 49 Pac. 78 (certificate to render copies of papers filed in a public office admissible should show that they are copies of original papers, and not of a transcript of them) ; Smith v. Gillum, 80 Tex. 120, 15 S. W. 794 ' ( that an examined copy of a record of a conveyance of lands in another state, compared with the original, the execution of which is proved by witnesses who testify that the copy was prepared by the notary before whom the original was executed, is sufficiently authenticated to render it admissible in evidence) ; Richardson v. Shelby, 3 Okla. 68, 41 Pac. 378 (that a copy of what purports to be a copy of a chattel mortgage executed and originally filed in Kansas, although certified by the register of deeds of the county where the purported copy is filed to be a "true copy of the original mortgage on file in this office," is not properly authenticated as a "true copy" of the original mortgage, within the meaning of the Oklahoma Code of Civil Precedure, p. 831, requiring the authentication to come from the county wherein the original instrument is filed). As to who is a proper officer to authenticate a, copy, see Benson v. Cahill, — Tex. Civ. App. — , 37 S. W. 1088 (that clerk of the court in which administration proceedings are had is the proper person to authen- ticate the transcript of such proceedings when offered in evidence in an action in another county) ; Ballew v. United States, 160 U. S. 388 BRIEF OW FACTS. 187, 40 L. ed. 388, 16 Sup. Ct. Rep. 263 (certificate by commissioner of pensions with certificate of the Secretary of the Interior certifying to official character of the former, sufficient authentication of a copy of a record in the pension office). /. Defect in OMthentication superseded hy oath to the truth of copy. — A certified copy, where authentication proves de- fective, may be proved as examined.^ 1 Society for Propagating the Gospel v. Young, 2 N. H. 310, 312, s. P., State V. Lynde, 77 Me. 561, 1 Atl. 687 (admitting sworn copy to show contents of record ) . 3. Imperfect or erroneous copy. A copy, if competent secondary evidence, may be received notvyithstanding an error in it, if oral or other extrinsic evi- dence is given to show the error in the copy, and the proper correction.* 1 As, for instance, testimony of witnesses who have heard the original, stating their recollection of its contents. Booth v. Tiernan, 109 U. S. 205, 27 L. ed. 907, 3 Sup. Ct. Rep. 122. See, also, on the same question, Reppard v. Warren, 103 Ga. 198, 29 S. E. 817; Emanuel v. Gates, 53 Fed. 772; Devereux v. McMahon, 108 N. C. 134, 12 L.R.A. 205, 12 S. E. 902 ; Hill v. Smith, 6 Tex. Civ. App. 312, 25 S. W. 1079. 4. Oral, to vary. When an instrument, the absence of which is accounted for, has been proved by secondary evidence, its contents thus shown are protected by the same rule against oral evidence to vary a writing, that the original would have been had it been pro- duced.^ 1 Reed v. United States Exp. Co. 48 N. Y. 462 ; Campbell v. Laclede Gas Co. 119 U. S. 445, 30 L. ed. 459, 7 Sup. Ct. Rep. 278. 5. Copies made by mechanical means as originals. Carbon copies are generally received in evidence as duplicate originals.* So placards printed from the same press have been held to be duplicate originals.^ But the authorities agree that letterpress copies are not admissible as originals,' and photo- COPIES. 389 graphic copies are not originals and can be used only as second- ary evidence.* 1 International Harvester Co. t. Elfstrom, 101 Minn. 263, 12 L.R.A.(N.S.) 343, 118 Am. St. Eep. 626, 112 N. W. 252, 11 Ann. Cas. 107 ; Wright V. Chicago, B. & Q. R. Co. 118 Mo. App. 392, 94 S. W. 555; Cole v. Ellwood Power Co. 216 Pa. 283, 65 Atl. 678; Virginia-Carolina Chem- ical Co. V. Knight, 106 Va. 674, 56 S. E. 725; Waterman v. Davis, 66 Vt. 83, 28 Atl. 664. 2 Rex V. Watson, 2 Starkie, 116. SMenasha Wooden Ware Co. v. Harmon, 128 Wis. 177, 107 N. W. 299; Haas V. Chubb, 67 Kan. 787, 74 Pac. 230; Anglo- American Packing & Provision Co. v. Cannon, 31 Fed. 313. 4Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Eep. 315; Howard v. Illinois Trust & Sav. Bank, 189 111. 568, 59 N. E. 1106. 6. Copy of lost or destroyed will. Where it is proved that a will has been duly executed and that it has been lost or destroyed without the knowledge or consent of the testator, the best evidence of its contents is a copy or draft of the will, if it can be obtained, and this is suffi- cient, when satisfactorily proved.' 1 Burls V. Burls, 36 L. J. Prob. N. S. 125, L. E. 1 Prob. & Div. 472, 16 L. T. N. S. 677, 15 Week. Eep. 1090; Graham v. O'Fallon, 3 Mo. 507; Hildreth v. Schillenger, 10 N. J. Eq. 196; James v. James, 3 Hagg. Eccl. Eep. 184, note; Hamilton v. Lightbody, 21 U. C. C. P. 126; Jackson ex dem. Schuyler v. Russell, 4 Wend. 543; Forbing v. Weber, 99 Ind. 589; Payne's Will, 4 T. B. Mon. 423. 390 BEIEF ON FACTS. COEROBORATION". 1. Reason for positiveness. 2. Corroboration of hearsay. 3. Corroboration before contradiction. 4. Corroboration let in by contradiction. a. Probability of truth. b. Conduct of adverse party, u. Accounts. d. Subsequent memorandum. e. Character of witness. f. Prior consistent statements. g. Ex parte declarations in own favor. 5. Contradicting corroboration. See also Characteb; EEBrTTAi,. 1. Reason for positiveness. A witness may be asked why he is confident he is correct ; for a reason for the positiveness of relevant knowledge is relevant.* iBlackwell v. Hamilton, 47 Ala. 472; Angell v. Rosenbury, 12 Mich. 24], 256; Cole V. Lake Shore & M. S. R. Co. 105 Mich. 549, 63 N. W. 647; Thomas v. State, 27 Ga. 287. But he cannot, under pretense of giving reasons for hia recollection, state facts material to the issue, but inadmissible by the rules of evidence. McBride v. Cicotte, 4 Mich. 478. Nor can a party bolster up testimony of his own witness by asking for the reasons which induced the conclusions to which he has just testified. Sprenger v. Tacoma Traction Co. 15 Wash. 660, 43 L.R.A. 706, 47 Pac. 17. 2. Corroboration of hearsay. A bank oiEcer having testified without objection to a fact oc- curring in the ordinary, course of business under his supervision, but not within his personal knowledge, evidence of the custom and usage of the bank is competent in corroboration.* 1 Knickerbocker L. Ins. Co. v. Pendleton, 115 U. S. 339, 344, 29 L. ed. 432, 434, 6 Sup. Ct. Rep. 74 (but qualifying this by saying this does not excuse the nonproduction of written entries, if such exist, as to the transaction in question. For this rule, see Business, § 3). COEEOBORATION. 391 3. Corroboration before contradictioii. The rule that a party who has testified to a fact in issue di- rectly discernible by the senses is not entitled, as of right, to fortify his testimony by proof of other facts, merely to render it more probable that what he swore to was true, where no evi- dence of its improbability has been adduced,^ does not preclude him from putting in other evidence which may afford independ- ent evidence of the same fact.* i Delano v. Smith Charities, 138 Mass. 63. And see State v. Guillory, 45 La. Ann. 31, 12 So. 314 (holding that hearsay testimony cannot be admitted as part of the affirmative for the prosecution in a crim- inal trial on the ground that it is in supposed corroboration of the statement of another witness which may later be the subject of at- tack). * Sawyer v. Orr, 140 Mass. 234, 5 N. E. 822 (an action on note, the nature of the consideration being in issue, — held, error to exclude a docu- ment which on its face suggested that it probably referred to the note ) . In Thiele v. Citizens' R. Co. 140 Mo. 319, 41 S. W. 800, it is held that a defendant whose application for a continuance on account of ab- sent witnesses is defeated, as provided by the Missouri statutes, by the admission of plaintiff that such witnesses would testify as stated in the affidavit, may corroborate such statutory evidence at every point, either by oral testimony as to the facts, or any additional fact or circumstance legitimately bearing on the issues. 4. Corroboration let in by contradiction. a. Probability of truth. — In case of a conflict of testimony, either party may be allowed to show any incidents connected with the fact in question which tend to render probable the truth of his evidence, or to render improbable that of his adversary.^ This rule allows evidence as to motive * for an act in dispute, the possession of the means of performing it,* preparations or connected conduct leading up to it,* and its consequences or re- sults.* The courts have a discretionary power to exclude what is too remote to have a reasonable tendency for the purpose.* And the rule does not allow proof of a fact otherwise irrele- 392 BRIEF OKT FACTS. vant, if the only point in respect to which it tends to show the truth of the evidence is immaterial to the issue.'' iPlatner v. Platner, 78 N. Y. 90, followed in National Ulster County Bank v. Madden, 41 Hun, 113 (holding contemporaneous memorandum on check stub, competent to corroborate the testimony of the drawer of the check, even when not necessary to refresh his memory) ; People V. Sherman, 103 N. Y. 513, 9 N". E. 178 (evidence that witnesses visited an office and made investigation preliminary to requesting the accused to retract libel, having been contradicted by defendant's, evidence in reply, other testimony that they did visit such place held competent in rebuttal) ; People v. Wentworth, 4 N. Y. Crim. Rep. 207 (cohabitation, habit, and repute are made competent on the ques- tion of marriage even in prosecution for bigamy, by conflict in direct testimony) ; People v. Bragle, 10 Abb. N. C. 300 (criminal case: On the question whether the accused, as a public officer, made a fraudulent claim for money paid for services in burial in addition of price of coffin, •held, that to contradict testimony that the price paid for the coffin was to include the services, it was competent for him to show a, previous understanding with a third person, by which the latter was to fur- nish both coffin and services at a sum greater than the aggregate ha alleged he had paid) ; Hamilton use of Warn-McClain Co. v. Hastings, 172 Pa. 308, 34 Atl. 43 (an action for the price of lumber sold by a member of a firm who was a member of another firm with who.n defendant had a previous contract; evidence relating to the state of the accounts between defendant and the latter firm and the extent to which that contract had been performed, competent when intro- duced merely for the purpose of corroboration) ; Birmingham Electric R. Co. v. Clay, 108 Ala. 233, 19 So. 309 (holding evidence that a witness who testified that a train was moving from 4 to 6 miles an hour when plaintiff's intestate tried to board it had his attention called to the fact that the latter was about to get in a place of danger just before he saw him running towards the train, competent to show that his attention was called to the rate the train was mov- ing) ; Blomgren v. Anderson, 48 Neb. 240, 67 N. W. 186 (an action to recover wages under special contract, the defense being that the services were by agreement performed in payment of board and lodg- ing; evidence that about the time of agreement alleged by defendant a third person, in defendant's presence and hearing, had offered t'> employ plaintiff at substantial wages, competent). Contra. People v. Hurtado, 63 Cal. 288 (held, that evidence of the truth of a charge is not competent to corroborate evidence of a confession of it, when the truth is not in issue, but the fact of confession is only relevant as showing knowledge or belief on the part of the one to whom the confession was made. Wife's confession to husband, of having committed adultery with deceased) ; Obermeier v. Whalen, COEEOBOEATION'. 39S 21 Misc. 37, 46 N. Y. Supp. 872 (holding stub in receipt book in- admissible in corroboration of the testimony of the one giving the- receipt, as to its contents, admitted without laying the proper founda- tion for secondary evidence ) . Compare Edgerton v. Wolf, 6 Gray, 453, 457 (holding that where the testi- mony of a witness to an interview has been contradicted by another witness testifying that the interview related to a different trans- action, the party has not a right to corroborate the latter witness by proof that there actually was such a, transaction, for this would be a collateral question). See, further, on this question. Civil Trial Brief, 3d ed. pp. 286 et seq. 8 Upton v. Winchester, 106 Mass. 330 ( action for price. Denial of having agreed. Errors to exclude evidence of actual value being below alleged price) ; Knallakan v. Beck, 47 Hun, 117 (conflict as to rate of wages agreed on; evidence of fair market value competent) ; Cornell v. Markham, 19 Hun, 275 (error to exclude evidence of unreasonableness of terms alleged, as tending to corroborate denial) ; Parker v. Coburn, 10 Allen, 82 (vendor against purchaser for price. In a conflict of evidence as to agreed price, error to exclude deeds by which plaintiff had previously conveyed away the right to cut timber, which had reduced the actual value far below the alleged agreed price) ; Black- burn V. Weisgerber, 13 N. Y. Week. Dig. 263 (in a conflict of testi- mony as to whether defendant suffered his property to be bought in by plaintiff at a low price for benefit of both, held, error to exclude evidence of a large actual value) ; Schmidt v. Schanzlin, 21 Jones & S. 498 (holding that in a conflict of evidence on the question whether consignments were a bailment or a sale, it is competent to show that the consignee was insolvent, because if insolvent he would be more likely to solicit consignments as agent, rather than defraud by buy- ing with an intent not to pay) ; Jones v. Eaton, 27 N. Y. Week. Dig. 356; Turver v. Field, 13 N. Y. S. R. 12 (in conflict of testimony a» to whether A employed B it is competent to prove that he already had a contract for the same thing with C ) . 3 Pontius V. People, 82 N. Y. 339, affirming, 21 Hun, 328 (holding finan- cial means and necessities of a person competent, on the question whether he made a. large loan as sworn by him), s. p., NichoUs v. Van Valkenburgh, 15 Hun, 230 (holding the like evidence competent on the question whether an alleged obligation was invalid, or whether omission to attempt to enforce it during life was mere forbearance) ; Burlew v. Hubbell, 1 Thomp. & C. 235 (action on note. Making de- nied. Plaintiff relied on evidence that it was given for a loan to defendant when he was pressed for money to pay a certain debt. Held, error to exclude evidence offered by defendant that he obtained the money he needed for that purpose from another) ; Nicholson v. Waful, 70 N. Y. 604, reversing 6 Hun, 655 (holds that possession of means to make an alleged loan at the time of making it being shown beyond 394 BEIEF ON PACTS. question, it was not error to exclude evidence of irapecuniosity during several years previous). 4 Stone V. Hubbardston, 100 Mass. 49 (error to exclude testimony that plaintiff was driving at a, reckless speed an eighth of a mile before he reached the place of casualty, to corroborate a witness who had testified that he was so driving at the time of the casualty. Gray, J. ) ; Lindsay v. People, 63 N. Y. 143, affirming 5 Hun, 104, s. c. more fully, 67 Barb. 548 (homicide; accomplice having testified that they removed the body on a certain night, evidence that he was away from home that night is admissible to corroborate. So, after it has been shown that the removal was in a sleigh, evidence that the ac- cused was seen passing in a sleigh in that direction at the time stated is admissible). * In an action against a railroad company for killing a. mare upon it:j track, evidence that an engine coming from the direction of the place where the mare wrfs killed, on the morning of the accident, had upon it fresh blood, dung, and hair, is admissible. International & G. N. R. Co. V. Hughes, 81 Tex. 184, 16 S. W. 875. Holyoke Paper Co. v. Conklin, 2 Allen, 326 (defendant's testimony deny- ing the sale alleged, and stating that he has only purchased a less quantity, which was no part of that alleged to have been sold to him, — held, properly corroborated by showing what he had done with all he had purchased of plaintiff, and that the results were such as were inconsistent with the use of the quantity alleged) ; Linsday v. People, 63 N. Y. 143, affirming 5 Hun, 104, more fully, 67 Barb. 548 (discovery of blood stains six months after alleged homicide, compe- tent; lapse of time being for consideration of the jury) ; Chester v. Dickerson, 54 N. Y. 1, affirming 52 Barb. 349 (see Whisler v. Drake, 35 Iowa, 103), (witness having testified to receiving money, the fact that he immediately thereafter exhibited money as having been so received is competent in corroboration). epiatner v. Platner, 78 N. Y. 90, 97 (dictum by Folger, J.). 'Gorham v. Price, 25 Hun, 11 (the question at issue being whether an adverse party was in possession as a tenant or as a purchaser, — held, error to allow party who had proved declaration of his adversary of readiness to pay rent, and that he had money in bank to pay it with, to go on and prove the fact of the money being in bank, as corrobora- tion of admission that he was tenant) ; People v. Haynes, 55 Barb. 450, 457 (error to receive evidence that accomplice did pay a sum to witness, to corroborate the testimony of the accomplice that the ac- cused paid the accomplice a large sum for the criminal act, and that the accomplice had used part of it to pay witness). Distinguished in People v. Sherman, 103 N. Y. 513, 9 N. E. 178. h. Conduct of adverse party. — In a conflict of testimony it is competent to show that the adverse jiarty has dealt with a COREOBOEATION. 395 third person in a manner which would indicate bad faith if the fact were as he now testiiies.^ This is a result of the general rule as to conduct in the nature of admissions. iHickler v. Leighton, 70 N. Y. 610 (an action by subcontractor for com- pensation; defense, accord and satisfaction at less than subcontract price, supported by defendant's testimony that plaintifl's work was badly done. Held, that in a conflict of evidence as to this last point, the plaintiff might show that defendant had claimed and receii'cd a sum in excess of the main contract price for the work done ) . c. Accounts. — In a conflict of testimony, accounts of the par- ties/ and accounts and memoranda of a person who is since de- ceased/ may be received as corroborating the testimony of a wit- ness to the facts entered in the accounts, although the accounts are not competent as original evidence. 1 Charles v. Bishoff, 1 Sadler (Pa.) 260, 1 Atl. 572; Bean v. Lambert, 77 Fed. 862 (holding books of account competent as entries made at the time of the transactions, for the purpose of corroborating the testi- mony of a witness as to the date of such transactions, without being proved in accordance with state statutes relating to account books). But a party cannot corroborate his testimony to the effect that he was interested in a business merely as a creditor, and not as a partner of the proprietor, by introducing his books of account. Cohen v. Green, 21 Misc. 334, 47 N. Y. Supp. 136. S Moffat V. Moffat, 10 Bosw. 468 (testimony as to the nature and contents of documents long since destroyed being in conflict, entries in the account books of the counsel who drafted the documents relating thereto, his drafts thereof, and other papers drafted by him at the same time relative to the same subject, the counsel being deceaseil, are admissible as corroborative). d. Subsequent memorandum. — A subsequent memorandum made by a witness, of facts to which he has testified of his own recollection, is inadmissible to corroborate him.* iCunard v. Manhattan R. Co. 1 Misc. 151, 20 N. Y. Supp. 724. e. Character of witness. — When a witness's credibility has been directly attacked by proof as to character or facts affecting it,* evidence is admissible to sustain him in respect thereto.'' '396 BRIEF ON FACTS. As to whether general good character or reputation for truth and veracity may be shown where a witness has been impeached by proof of contradictory statements, the authorities are di- vided.^ The sustaining witness must, in order to testify as to charac- ter, show his knowledge thereof.* The mere fact that a witness's testimony is contradicted by opposing testimony does not warrant the inti'oduction of evi- dence of his reputation for truth and veracity.^ 1 As to whether one may give evidence of good character where his char- acter is not put in issue by the pleadings, or evidence of general bad character has been received against him, see Character. 2Gertz V. Fitchburg R. Co. 137 Mass. 77, 50 Am. Rep. 285; Post Pub. Co. V. Hallan, 8 C. C. A. 201, 16 U. S. App. 613, 59 Fed. 530. See also Civil Trial Brief, 3d ed. pp. 286, 289. 3 That he may be so sustained, see, for example, Louisville, N. A. & C. E. Co. v. Frawley, 110 Ind. 18, 9 N. E. 594; Berryman v. Cox, 73 Mo. App. 67; United States v. Lancaster, 10 L.R.A. 333, 44 Fed. 896. That he may not, see Russell v. Coffin, 8 Pick. 143; Wertz v. May, 21 Pa. 274; First Nat. Bank v. Commercial Assur. Co. 33 Or. 43, 52 Pae. 1050. See more fully on this question, Civil Trial Brief, 3d ed. pp. 286, 290. 4 Cook V. Hunt, 24 111. 536. But see more fully on this question, Civil Trial Brief, 3d ed. pp. 286, 295. 6 Mobile & G. R. Co. v. Williams, 54 Ala. 168; People v. Bush, 65 Cal. 129, 3 Pac. 590, 5 Am. Crim. Rep. 459; Rogers v. Moore, 10 Conn. 14; Saussy v. South Florida R. Co. 22 Fla. 327; Travelers' Ins. Co. V. Sheppard, 85 Ga. 751, 12 S. £. 18; Pruitt v. Cox, 21 Ind. 15; State V. Archer, 73 Iowa, 320, 35 N. W. 241; Vance v. Vance 2 Met. (Ky.) 581; Vernon v. Tucker, 30 Md. 459; Atwood v. Dearborn, 1 Allen, 483, 79 Am. Dec. 755: People v. Hulse, 3 Hill, 309; Osmun V. Winters, 25 Or. 260, 35 Pac. 250; Braddee v. Brownfleld, 9 Watts, 124; Tomson v. Heidenheimer, 16 Tex. Civ. App. lU, 40 S. W. 425; Stevenson v. Gunning, 64 Vt. 601, 25 Atl. 697 ; Spurr v. United States, 31 C. C. A. 202, 59 U. S. App. 663, 87 Fed. 701; First Nat. Bank v. Blakeman, 19 Okla. 106, 12 L.R.A. (N.S.) 334, 91 Pac. 868. Contra. State v. Desforges, 48 La. Ann. 73, 18 So. 912; George v. Pilcher, 28 Gratt. 299, 26 Am. Rep. 350; Davis v. State, 38 Md. 75. For other cases, see note in 12 L.R.A. (N.S.) 304. /. Prior consistent statements. — Prior statements consistent with present testimony are usually inadmissible to corroborate COllHOBOEjlTIOJSr. 397 an impeached witness,* unless it has been charged that such present testimony is the result of recent fabrication, or given under the influence of a motive which did not exist at the time of the making of the prior statements.^ iMarx Bros. v. Leinkauff, 93 Ala. 453, 9 So. 8] 8; Baxter v. Camp, 71 Conn. 245, 42 L.R.A. 514, 41 Atl. 803; Dudley v. Bolles, 24 Wend. 465; Baxter v. Camp, 71 Conn. 245, 42 L.R.A. 514, 71 Am. St. Rep. 169, 41 Atl. 803; Com. v. Tucker, 189 Mass. 457, 7 L.R.A. (N.S.) 105li, 76 N. E. 127. See also Civil Trial Brief, 3d ed. pp. 286, 290. SBarkly v. Copeland, 74 Cal. 1, 15 Pac. 307; Herrick v. Smith, 13 Hun, 448; Glass v. Bennett, 89 Tenn. 478, 14 S. W. 1085. See also Civil Trial Brief, 3d ed. pp. 286, 293. g. Ex parte declarations in own favor. — In a conflict of tes- timony of the parties, neither can corroborate his testimony by evidence that at or about the time in question he stated the same facts to a third person, in the absence of adverse party.^ 1 Wallace v. Story, 139 Mass. 115, 29 N. E. 224; Eggleston v. Columbia Turnp. Road, 82 N. Y. 278, reversing 18 Hun, 146, for error in tliis respect. See also Civil Trial Brief, 3d ed. 286. Whether evidence of the woman's declarations to third persons about the engagement are competent to corroborate her testimony to the fact of the man's promise to marry her, — query. McPherson v. Ryan, 50 Mich. 33, 26 N. W. 321. That an accusation by the mother of a, bastard child, that defendant is its father, made during travail, is admissible to corroborate her tes- timony, see Scott v. Donovan, 153 Mass. 378, 26 N. E. 871 (holding that they are admissible vi'hen made at any time after labor pains commence and before delivery of the child) ; Mann v. Maxwell, 83 Me. 146, 21 Atl. 844; Leonard v. Bolton, 148 Mass. 66, 18 N. E. 879. 5. Contradicting corroboration. Where a witness has sought to corroborate his testimony in a conflict of evidence, by stating an otherwise irrelevant fact as ■corroboration, it is competent to give evidence tending to estab- lish the contrary as to that fact.' IHickler v. Leighton, 70 N. Y. 610. (To controvert the plaintiff's evi- dence that defendant procured receipts to be given by representing that he wanted to show them to his partner, defendant testified that he had no partner. Held, competent to show by cross-examination that a third person had claimed to be his partner, and sued to es- tablish his partnership.) 398 BEIEl' ON PACTS. CEEDIT. 1. Presumptiona and burden of proof. 2. Subsequent promise by agent. 3. Direct testimony. a. In general. b. Concurrent intent. c. One act on the faith of another. 4. Subsequent credit. 5. Account not conclusive. 6. Other like purchases. 7. Res gestw. 8. General reputation. 9. Rebuttal of presumption of credit For kindred topics, see Accounts; Agency; Cobbobobation ; Inducement; Insolvency. 1. Presumptions and burden of proof. It is ordinarily presumed that a sale is for cash, and evidence is necessary to overcome this presumption and shov? that credit was to be allowed.^ And it will be presumed, where a known agent deals or contracts within the scope of his authority, that credit is extended to the principal, and not to the agent ; and one who seeks to charge the agent personally has the burden of proof.* 1 Lamb v. Utley, 146 Mich. 654, 110 N. W. 50. 2 Anderson v. Timberlake, 114 Ala. 377, 22 So. 431; John Spry Lumber Co. v. McMillan, 77 111. App. 280, and cases cited. But according to Kelley v. Faulhaber, 18 Misc. 64, 41 N. Y. Supp. 26, a vpife is pre- sumed, in the absence of contrary evidence, to be acting for herself in employing counsel in a matter in which both she and her husband are beneficially interested; and the attorney is presumed to be deal- ing, to the extent of her interest, on her individual credit, and not solely on the credit of her husband. 2. Subsequent promise by agent. On the question whether the credit was extended to the agent alone, or whether it was his intention to bind himself and not his CEEDIT. oVV principal, it is proper to show a subsequent promise by the agent to pay a debt contracted by him for his principal.^ 1 Anderson v. Timberlake, 114 Ala. 377, 22 So. 431. 3. Direct testimony. a. In general. — On a question to which of two persons credit was given, in a transaction the details of which have been proved, it is not competent to ask the party, as a witness in his own behalf, to state to which of such persons he gave credit.* 1 Betjemann v. Brooks, 39 Hun, 649 ; Nichols v. Kingdom Iron Ore Co. 56 N. Y. 618 (error to allow plaintiff to be asked in his own behalf whether, in making a demand for payment on defendant's lessee, he asked the lessee for payment as his debtor, because this called for a construction of what was said, and not for the language; also error to allow a witness who did the work in part to be asked, "For whom did you do it as you supposed?") ; Merritt v. Briggs, 57 N. Y. 651 (error to allow defendant, as a witness in his own behalf, to be asked, "State on whose credit the cattle were bought," as it called for the witness's conclusion or opinion ; but a general objection was un- availing. The defense was that defendant bought as a broker on the credit of another person, as plaintiff knew) ; Kellar v. Richardson, 5 Hun, 352 (error to allow the question, "To whom did you look for performance?" for it called merely for thoughts). (This rule depends, not on the incompetency of a person to testify to his own intent [see Intent], but on the irrelevancy or immateriality of the uncommunicated intent of one party to the transaction; and therefore the rule is subject to the qualification that if evidence of the intent of the adverse party has been given the party may prove his own concurrent intent. See § 3, b. this title ) . h. Concurrent intent.— On the question whether credit was given to defendant or a third person to whom the charge on plaintiff's books was made, it is proper, after evidence tending to show that the order was given on the authority of defendant, to ask the plaintiff's salesman upon whose credit the goods were delivered, and to whom he looked for payment.* 1 This was allowed for the purpose of explaining the charges on the books. Lee V. Wheeler, 11 Gray, 236. Opinion by Metcalf, J. When such evidence has been received, if there is conflict or doubt, the question. To whom was credit given? is for the jury under instruc- tions from the court. Maryland Coal Co. v. Edwards, 4 Hun, 432. 400 BRIEF ON FACTS. So, on the question whether plaintiff gave credit to the defendants as partners, — after evidence of holding out had been received, — held, that, as his belief in the existence of partnership at the time of the contract was material, he might be asked what he believed and relied on in that respect. DeCordova v. Powter, 16 N. Y. S. R. 1006, 1 ^f. Y. Supp. 147. Opinion by Daniels, J. So, to prove oneself to be a purchaser for value, he may testify, on his own behalf, that the supplies furnished after the delivery of the note were furnished on the note. For this, if matter of intent, is com- petent under the rule in Seymour v. Wilson, 14 N. Y. 567 ; but it may rather be regarded as matter of fact under the rule in Sweet v. Tuttle, 14 N. Y. 465 ; Lewis v. Rogers, 2 Jones & S. 64, 67, 75. Sweet V. Tuttle, 14 N. Y. 471, sustained such a question upon the ground that it did not call for an opinion; and if it called for a conclusion deducible from other special circumstances this should be shown by cross-examination. c. One act on the faith of another. — When the inducement to the doing of an act in evidence is material, the party who did it, and even another person having adequate acquaintance with the facts, may testify that it was done on the faith of another fact; subject, of course, to cross-examination as to details.' 1 Richmondville Union Seminary v. McDonald, 34 N. Y. 379 (testimony of vice president and trustee of corporation, that debts were contract- ed on the faith of defendant's subscription, competent). It is competent for » party to a transaction, cognizant of all the circum- stances and a witness of the act, to state its purpose, subject to cross-examination. National Bank v. Kennedy, 17 Wall. 19, 26, 2] L. ed. 554, 557 (the cashier of a bank was here allowed to testify that the purpose of the delivery of drafts was to pay for purchase of stock ) . 4. Subsequent credit. Subsequent credit extended within a few months of an orig- inal credit given upon the faith of particular property will be presumed to have been given on the faith of the same property.' 1 White V. Magarahan, 87 Ga. 217, 13 S. E. 509. 5. Account not conclusive. A party's entry in his own account, charging one person, is CBEDIT. 401 not conclusive evidence that the transaction was not in fact had on the credit of another.^ 1 James v. Spaulding, 4 Gray, 451; John Spry Lumber Co. v. McMillan, 77 111. App. 280, and cases cited; Mackey v. Smith, 21 Or. 598, 28 Pac. 974; Welch v. Kicker, 69 Vt. 239, 39 Atl. 200; Steen v. Sanders, 116 Ala. 155, 22 So. 498 (dictum) ; Buckingham v. Murray, 7 Houst, (Del.) 176, 30 Atl. 779; Wilshusen v. Binns, 19 Misc. 547, 43 N. Y. Supp. 1085. But it is a circumstance requiring satisfactory explanation. Cosh-Murray Co. V. Adair, 9 Wash. 686, 38 Pac. 749 ; Meeker v. Claghorn, 44 N. Y. 349; Swift v. Pierce, 13 Allen, 136 (holding that even the fact that suit was brought against the person charged on the books is not con- clusive ) . To the same effect, see Accounts, § 25. 6. Other like purchases. Evidence that one made other purchases in his own name and ■on his own credit, to be used in a business in which he is man- ager, is competent to show that the goods sued for were sold to, or on, his credit.^ 1 Moore v. Schrader, 14 Ind. App. 69, 42 N. B. 490. 7. Ees gestae. Instructions as to filling an order, given by the seller to his employee after the order has been entered and the person has left, are not admissible as part of the res gestae of the purchase, nor to show to whom credit was intended to be given.^ 1 Tolbert v. Burke, 89 Mich. 132, 50 N. W. 803. S. Greneral reputation. General reputation of the insolvency and inability to pay, of one of two persons, is not alone competent for the purpose of showing whether credit was given to him or not.* 1 Trowbridge v. Wheeler, 1 Allen, 162, Hoar, J., says, if plaintiff relied on an implied contract, general reputation or even knowledge would not be material unless there was holding out. If he relied on an express contract, reputation or knowledge as to solvency would not be material. Compare Cobboboeation. But Plumb v. Curtis, 66 Conn. 154, 33 Atl. 998, holds that to allow plaintiff to testify that the person Abb. Facts — 26. 402 BRIEF ON FACTS. ordering goods was a man of no property so far as he knew was proper in that case, when taken In connection with other evidence already in. 9. Rebuttal of presumption of credit. In order to rebut the presumption that materials furnished and work done were on the credit of the buildings liened upon, \\here a materialman seeking to enforce a mechanic's lien has complied with the statute relating to such liens, it is proper to ask the contractor in what buildings the materials were used.* 1 Green v. Thompson, 172 Pa. 609, 33 Atl. 702. DATE. 1. Hearsay as evidence to fix date. 2. Refreshing memory. 3. Collateral record and memoranda, 4. Date of letter received. 5. Coutradicting or corroborating. 6. Part of document. 7. Day of the week of a given date. 8. Prtsumptions. 9. Contradicting documentary date by oral evidence. 10. Date of filing. Judicial notice as to, see Jtjdiciai. Notice. See also Age; Delivery; Time. 1. Hearsay as evidence to fix date. As a means of fixing the dates of any transaction you may prove by a witness that at a specified time he heard of the oc- currence.* But the conversation itself does not thereby become compe- DATE. 403 tent; and if its import tends to affect the issues between the parties, it is error to receive it.* 1 Fisher v. People, 103 111. 101 ; McDonald v. Savoy, 110 Mass. 49. 8 New York Lumber & Wood- Working Co. v. Schneider, 16 N. Y. Civ. Proc. Rep. 30, 1 N. Y. Supp. 441. 2. Refreshing memory. A witness, in fixing the date of a transaction, may refer to a book or diary to refresh his recollection ; and may state that the entries of events were made therein at the times of their occur- rence, respectively, and that he is enabled thereby to fix the date with accuracy. But this does not of itself make the entry evidence, nor need the book be produced for the inspection of the jury.* 1 First Nat. Bank v. First Nat. Bank, 114 Pa. 1, 6 Atl. 366 (holding, therefore, that a deposition containing such testimony was admissible without the books referred to ) . It is not essential that the paper be contemporaneous with the event. A written statement made by the witness at any time during his recol- lection of the date is available. Wood v. Cooper, 1 Car. & K. 645. That a witness in refreshing his memory as to date may be confined to the part which states the date, see Smith v. Morgan, 2 Moody & R. 257. 3. Collateral record and memoranda. Collateral records and memoranda may serve as evidence of date.* 1. Livingston v. Arnoux, 56 N. Y. 507, Affirming 15 Abb. Pr. N. S. 158 (entries by attorney since deceased, in his register, pursuant to duty and against interest) ; Lewis v. Burlington Ins. Co. 80 Iowa, 259, 45 N. W. 749 (indorsement on proof of loss when received to show date of receipt) ; Stoker v. Patton, — Tex. Civ. App. — , 35 S. W. 64 (re- turn on marriage license to show date of marriage) ; s. p., Doe ex dem. Reece v. Robson, 15 East, 32, 13 Revised Rep. 361 ; Bridgewater v. Roxbury, 54 Conn. 213, 6 Atl. 415; Coan v. Flagg, 123 U. S. 117, 31 L. ed. 107, 8 Sup. Ct. Rep. 47 (copies of official letters by public officer verified by clerk who prepared the originals). 4. Date of letter received. To prove that an occurrence was at or before a given date, a 404 BEIEF ON FACTS. witness having testified that it was at the time when he received a certain specified letter, the letter cannot be put in evidence, for it would furnish no evidence of the time when he received it.i 1 Com. V. Burns, 7 Allen, 540. (It might be otherwise when the object was to prove the lateness of the date, for if the letter be presumed or proved to have been written at its date, the receipt of the letter would tend to fix the date at or after the date of the letter.) 5. Contradicting or corroborating. After a witness has fixed a date as to which he is otherwise un- certain, by referring to an occurrence at about the same time, the details of such occurrence, if not relevant to the case or prejudicial to the adverse party, may be proved so far as tend- ing to contradict or corroborate the conclusion as to the date in qiiestion.^ 1 Blake v. Damon, 103 Mass. 199 (not error to receive details of a trans- action which has no bearing on the case, for the purpose of showing that the adverse party, who has used evidence of the transaction mere- ly to fix a date, was mistaken in that respect) ; Topham v. M'Gregor, 1 Car. & K. 320, holding that to corroborate a, witness who had fixed a date by referring to the weather at the time, a newspaper con- taining an article on the weather published at the time is admis- sible, the editor testifying as to who wrote it, and that the original manuscript is lost, and the writer testifying that he had no recollec- tion of writing the article, but that he was then writing articles on the weather and that the statements therein were true. 6. Part of document. When a part of a document is admitted to fix a date, the whole is not thereby made evidence ; but that only is admissible which relates to, or modifies, what has been introduced.^ 1 Bellows V. Sowles, 59 Vt. 63, 7 Atl. 542. 7. Day of the week of a given date. The court may take judicial notice as to what day of the week a given day of a month and year did, or will, fall upon.^ lEcker v. First Nat. Bank, 64 Md. 292, 1 Atl. 849 (Sunday); Reed T. DATE, 405 Wilson, 41 K. J. L. 29 (holding that for this purpose the court may refer to an almanac) ; Morgan v. Burrow, — Miss. — , 16 So. 432; Said V. Stromberg, 55 Mo. App. 438; First Nat. Bank v. Kingsley, 84 Me. Ill, 24 Atl. 794; Swales v. Grubbs, 126 Ind. 106, 25 N. E. 877; Brennan v. Vogt, 97 Ala. 647, 11 So. 893; Campbell v. West, 86 Cal. 197, 24 Pac. 1000. And that the jury may take such notice without proof, see Cohn v. Kahn, 14 Misc. 255, 35 N. Y. Supp. 829. Table of years, except leap years. 1901 1907 1918 1929 1935 1946 1957 196.S 1974 19R5 iwa 1918 1919 19H0 1941 1947 1958 19B9 1975 1986 19()H 1914 1935 19:i1 1942 191)3 1959 1970 1981 1987 1 Re Hurlburt, 68 Vt. 366, 35 L.R.A. 794, 35 Atl. 77, holding that general repute among a person's friends and acquaintances at the time of his disappearance, that he was killed or drowned, is inadmissible to prove the fact of his death. And mere rumor of death was held inadmissible in Johnson v. Johnson, 114 111. 611, 55 Am. Rep. 883, 3 N. E. 232. And evidence of one witness that he had heard a person was dead, and of another that he had so heard and such was the general report, was held not sufficient in State v. Wright, 70 Iowa, 152, 30 N. W. 388. 4. Order of substitution. An order of substitution of a successor in interest, in place of a party suggested to be deceased, is prima facie evidence in the same cause that such death occurred.* iStebbins v. Duncan, 108 U. S. 32, 27 L. ed. 641, 2 Sup. Ct. Eep. 313, s. p. Assignment. 5. Letters of administration. In all cases in which the administrator as such is a party, for the purpose of showing his representative capacity and his authority to act for, and enforce or protect the rights of, the estate he assumes to represent, letters of administration are at least prima facie evidence of every fact upon which such ca- pacity and authority depend, including the death of the person upon whose estate they issued.* But on the question whether the grant of letters of administration or the probate of a will establishes of itself the fact of the death of the testator in oth- er cases, in which the administrator is not a party, the author- ities are not in harmony.* 1 Pick v. Strong, 26 Minn. 303, 3 N. W. 697 ; Ketland v. Lebering, 2 Wash. C. C. 201, Fed. Cas. No. 7,744; Seibert v. True, 8 Kan. 52; French V. Frazier, 7 J. J. Marsh, 425; Ruoff v. Greenpoint Sav. Bank, 40 Misc. 549^, 82 N. Y. Supp. 881; Re Ketcham, 5 N. Y. Supp. 566; Cunningham v. Smith, 70 Pa. 450; Lancaster v. Washington L. Ins. Co. 62 Mo. 121. DEATH. 415 And such evidence is held conclusive where no plea in abatement is filed. Cunningham v. Smith, 70 Pa. 450; Newman, v. Jenkins, 10 Pick. 515. Though in Lancaster v. Washington L. Ins. Co. 62 Mo. 121, it is said that such proof is of the weakest and most inconclusive character, and that slight evidence is sufficient to rebut it. 2 That the grant of letters of administration is prima facie evidence of death in such cases is declared in Tisdale v. Connecticut Mut. L. Ins. Co. 26 Iowa, 170, 96 Am. Dec. 136; Davis v. Gillilan, 71 Mo. App. 498 ; Jeffers v. Radcliff, 10 N. H. 242 ; Brown v. Elwell, 17 Wash. 442, 49 Pac. 1068. And some of the cases cited in the preceding note state the rule broadly enough to include all cases, without lim- iting the efi'ect of such letters as evidence to cases in which the administrator is a party, although, as a matter of fact, the admin- istrator was in each case a party. Thus, in Cunningham v. Smith, 70 Pa. 450, it is said that letters of administration are in all cases prima facie evidence of the death of the person on whose estate they are granted. In the New Hampshire case cited above — Jeffers v. Radcliff, 10 N. H. 242 — there was evidence to sustain the ruling independently of the letters of administration, and the case concedes that the law is other- wise in England (citing Thompson v. Donaldson, 3 Esp. 63, 6 Revised Rep. 812, 1 Phillipps, Ev. 246 ; Blackham's Case, 1 Salk. 290 ; 11 State Trials, 261), but adds that the rule adopted by the English courts cannot be sustained on good grounds, and may have arisen from collisions and jealousies betwixt the courts of common law and the ecclesiastical courts, which had an entirely distinct and independent jurisdiction. The rule of the English courts, that the letters are evidence only in actions in which the administrator is a party, has, however, been followed by the Supreme Court of the United States (Mutual Ben. L. Ins. Co. V. Tisdale, 91 U. S. 238, 23 L. ed. 314) and by the courts of New York (Carroll v. Carroll, 60 N. Y. 121, 19 Am. Rep. 144, re- versing 2 Hun, 609) and by the Texas courts (English v. Murray, 13 Tex. 366). 6. Record of death. A record of death made pursuant to tlie statutes of another state, or a certified copy duly authenticated, is admissible at common law to prove death.* 1 Nolan V. Nolan, 35 App. Div. 339, 54 N. Y. Supp. 975 (holding, however, the authentication of the record offered insufficient)., 7. Undelivered letter. Within the rule that cessation of communication is a circum- 416 BEIEF ON XfACTS, stance from whieli death may be inferred, a letter addressed to a person at his last known place of residence, and returned uncalled for, is competent.^ 1 Hurlburt v. Hurlburt, 63 Vt. 667, 22 Atl. 850. DEFEASANCE. 1. Presumption; burden of proof. ■2. Oral evidence. 3. Direct question. 4. Documentary evidence. 5. Admissions. 6. Declarations. 7. General denial. 8. Cogency of proof. 1. Presumption; burden of proof. A deed absolute in form is presumed to be a conveyance, and not a mortgage.^ And the burden of proving that a deed absolute on its face was intended as a mortgage rests on the party asserting that claim.^ 1 Betts V. Betts, 132 Iowa, 72, 106 N. W. 928. 2 Reeves v. Abercromble, 108 Ala. 535, 19 So. 41; Story v. Springer, 155 111. 25, 39 N. B. 570 ; Runyon v. Pogue, 19 Ky. L. Rep. 940, 42 S. W. 910; Kellogg v. Northrup, 115 Mich. 327, 73 N. W. 230; Merchants' Nat. Bank v. Stanton, 62 Minn. 204, 64 N. W. 390; Kleinschmidt v. Kleinschmidt, 9 Mont. 477, 24 Pac. 266; Winters v. Earl, 52 N. J. Eq. 52, 28 Atl. 15 ; Fullerton v. McCurdy, 55 N. Y. 637 ; Haussknecht V. Smith, 11 App. Div. 185, 42 N. Y. Supp. 611; Bradsher v. High- tower, 118 N. C. 399, 24 S. E. 120; Mororw v. Letcher, 10 S. D. 33, 71 N. W. 139; McLean v. Ellis, 79 Tex. 398, 15 S. W. 394; Ewing v. Keith, 16 Utah, 312, 52 Pac. 4 DEFEASANCE. 417 Nor will the presumption that a deed absolute on its face is intended as a mortgage, arising from a gross inadequacy of consideration, control where the accompanying circumstances warrant the inference that it was the intention that the grantee should share in the profits ex- pected to be realized from a subsequent sale of the land. Story v. Springer, 155 111. 25, 39 N. B. 570. But according to the Missouri court, if the transaction had its inception in an application for a loan, it will be presumed, in the absence of evidence to the contrary, that the deed was intended as a mortgage. Cobb V. Day, 106 Mo. 278, 17 S. W. 323. And a prima facie presumption that the deed and a lease back to the grantor were intended as a mortgage, arising from their execution on the same day, is not overcome by proof of the refusal of the grantee to loan the money and take a mortgage, where the circum- stances tend to show that the purpose was to evade the law requiring foreclosure before possession could be obtained. Mears v. Strobach, 12 Wash. 61, 40 Pac. 621. A deed absolute in form, accompanied by the grantee's agreement to re- convey to the grantor, constitutes a prima facie conveyance of the land, and the burden is on the party claiming it to show that the transaction is a mortgage. Johnson v. Scrimshire, 42 Tex. Civ. App. 611, 93 S. W. 712; McGuin v. Lee, 10 N. D. 160, 86 N. W. 714. 2. Oral evidence. Oral evidence is admissible to show that a conveyance ab- solute in form was intended as a mortgage.* 1 The right to establish by oral evidence the defeasible character of an absolute written conveyance is too well fixed to be questioned, accord- ing to Reeves v. Abererombie, 108 Ala. 538, 19 So. 41; and where the effort is made the only inquiry is whether it has been sustained by the necessary measure of proof. To the same eflTect, see: Helbreg V. Schumann, 150 111. 12, 37 N. E. 99; German Ins. Co. v. Gibe, 162 111. 251, 44 N. E. 490; Sever v. Bever, 144 Ind. 157, 41 N. E. 944 {dictum); Loeb v. McAlister, 15 Ind. App. 643, 41 N. E. 1061, 44 N. E. 378; Barnes v. Crockett, 4 Kan. App. 777, 46 Pac. 997; Libby V. Clark, 88 Me. 32, 33 Atl. 657; Backus v. Burke, 63 Minn. 272, 65 N. W. 459; Langer v. Meservey, 80 Iowa, 158, 45 N. W. 732; Ensign V. Ensign, 120 N. Y. 655, 24 N. E. 942; Farmers' & M. Bank v. Smith, 61 App. Div. 315, 70 N. Y. Supp. 536; Wasatch Min. Co. v. Jennings, 5 Utah, 243, 385, 15 Pac. 65, 16 Pac. 399; Cobb v. Day, 106 Mo. 278, 17 S. W. 323 ; Winters v. Earl, 52 N. J. Eq. 52, 28 Atl. 15 ; Barry v. Colville, 129 N. Y. 302, 29 N. E. 307; Weiseham v. Hocker, 7 Okla. 250, 54 Pac. 464; Lewis v. Bayliss, 90 Tenn. 280, 16 S. W. 376; Shank v. Groff, 43 W. Va. 337, 27 S. E. 340. And Watkins v. Williams, 123 Abb. Facts — 27. 418 BRIEF ON FACTS. N. C. 170, 31 S. E. 388, holds admissible facts and circumstances dehors the deed inconsistent with the idea of an absolute purchase, but that that fact cannot be established by simple declarations of the parties. But Christ Church v. Trustees of Donations & Bequests, 67 Conn. 554, 35 Atl. 552, holds that evidence of statements anu representations by members of a church, made at the time of the execution of the deed, is inadmissible; and Mitchell v. FuUington, 83 Ga. 301, 9 S. E. 1083, holds that a deed absolute, and accompanied with possession, cannot, under § 3809 of the Georgia Code, be proved by oral evidence to be a mortgage, in the absence of fraud in its procurement. It is well settled that the true consideration of the deed may be proved by parol evidence, and that a deed absolute on its face may be shown to have been executed in fact as a security for money, and for that reason be treated as a mortgage. The rule does not depend upon the manner of statement of the consideration in the deed. The right is a' substantial one, not to be varied or defeated by any form of expres- sion or character of recitals in the instrument itself. McLean v. Ellis, 79 Tex. 398, 15 S. W. 394. Parol evidence is admissible in equity to show that a deed of conveyance, absolute upon its face, was intended as a mortgage; and where it is shown that such a conveyance has been executed to secure the pay- ment of money, equity will treat it as a mortgage. The court looks beyond the terms of the instrument to the real transaction, or what was intended to be effected by the parties, and any evidence, whether written or oral, tending to show this, is admissible. The admission of oral testimony for such purpose is not a violation of the rule which precludes such admission for the purpose of varying or contradicting the terms of a written instrument; that rule has reference to the language of which the instrument is the repository, but this permits an inquiry into the objects of the parties in executing and receiving the instrument, and equity exercises its jurisdiction to carry out such object, and to prevent fraud and imposition, and to promote justice. First Nat. Bank v. Ashmead, 23 Fia. 379, 2 So. 657, 665. And the rule applies with equal force to on assignment of a contract of sale of land claimed to have been given as a mortgage or pledge. Lovejoy v. Chapman, 23 Or. 571, 32 Pac. 687 ; Gettelman v. Com- mercial Union Assur. Co. 97 Wis. 237, 72 N. W. 627. Within this rule, a grantor may testify as to facts and circur>:stancos showing that the deed was but a mortgage, or that the grantee agreed to resell and reeonvey upon the performance of certain con- ditions. Beroud v. Lyons, 85 Iowa, 482, 52 N. W. 486. A party is not precluded from showing, by parol evidence, that a deed absolute on its face was intended as a mortgage, by the fact that written instruments were executed contemporaneously with the deed, importing a right and privilege in the grantor to repurcliase the DEFEASANCE. 419 property by the payment of specified sums within specified times, in the absence of evidence showing that the grantees had relied on such instruments in such manner as to constitute an estoppel. Wig- gins V. Wiggins, 16 Tex. Civ. App. 335, 40 S. W. 643. The rule cannot be invoked, however, in the case of a contract upon its face a conditional sale of land providing for forfeiture of payments in the event of the purchaser's failure fully to perform, — at least if the transaction was not confessedly a loan. Pease v. Baxter, 12 Wash. 567, 41 Pac. 899. And a grantor's wife cannot testify that she understood when she signed the deed that it was not an absolute conveyance, and that she was not examined privily and apart from her husband, in conflict with recitals of her certificate of acknowledgment, of the falsity of which the grantee is not shown to have had any knowledge. Gray v. Shelby, 83 Tex. 405, 18 S. W. 809. But allowing her to so testify is not in itself fatal error, where there is other testimony sufficient to sustain the conclusion that the deed was in efl'ect a mortgage. In Pennsylvania a statute (act of June 8, 1881, Purdon, 651) provides that no deed regular and absolute on its face shall be reduced to a mort- gage unless the defeasance is in writing and made at the time of the deed. But this statute does not jforbid the admission of oral evidence to defeat a deed made prior to the passage of the act. Selby's Estate, 7 Pa. Dist. R. 171. Extrinsic evidence is competent to show that a deed absolute in form was intended as a mortgage, but such evidence is not competent to show that the instrument, in form a mortgage, was intended to be an absolute conveyance. Johnson v. 'Prosperity Loan & Bldg. Asso. 94 111. App. 260. See as to the first proposition: Bigler v. Jack, 114 Iowa, 667, 87 N. W. 700; Farmers' & M. Bank v. Smith, 61 App. Div. 315, 70 N. Y. Supp. 536; Beebe v. Wisconsin Mortg. Loan Co. 117 Wis. 328, 93 N. W. 1103. 3. Direct question. A witness may be asked how he held a deed, absolute or as a mortgage.^ But a grantor cannot be asked whether he has ever sold the land in controversy.^ 1 Raynor v. Page, 2 Hun, 652. But see Watkins v. Williams, 123 N. C. 170, 31 S. E. 388, where it is said that the intention must be established, not by simple declarations of the parties, but by proof of facts and circumstances dehors the deed inconsistent with the idea of an abso- lute purchase; otherwise, the solemnity of deeds would always be exposed to the "slippery memory of witnesses.'' 420 BEIEF ON PACTS. So, also, a grantee under a deed which is alleged to have been given to secure the support for life of the grantor by the grantee may be asked whether there was any agreement to reconvey. Langer v. Meservey, 80 Iowa, 158, 45 N. W. 732. 2 Ashton V. Ashton, 11 S. D. 610, 79 N. W. 1001. Such a question calls for the witness's opinion as to a fact which is for the jury to deter- mine; that is, the issue, — Has he sold the land or mortgaged it? 4. Documentary evidence. Tax books showing the return of lands for taxation by the grantee of a deed absolute in form, but not including the land conveyed, are admissible on the question whether the deed was absolute or intended as a mortgage.* And a receipt from the grantor to the grantee for money stated to be paid for the pur- chase of land according to a specified deed is admissible on the question whether the transaction was an absolute conveyance or a mortgage.* 1 Jones V. Grantham, 80 Ga. 472, 5 S. E. 764. 2 Holmes v. Warren, 145 Cal. 457, 78 Pac. 954. 5. Admissions. An admission in an answer of a personal representative of a grantor, that an absolute deed was intended as a mortgage, is not evidence against infant heirs of the grantor.* 1 So held in an action to have the deed declared a mortgage, and for its foreclosure. Ingram v. Illges, 98 Ala. 511, 13 So. 548. 6. Declarations. Declarations of the grantor, made subsequent to the execu- tion and delivery of the deed sought to be impeached, are not competent to establish a defeasance.* 1 Jones V. Jones, 137 N. Y. 610, 33 N. E. 479; Hyde v. Buckner, 108 Cal. 522, 41 Pac. 410. So held, although when they were made the grantor had not surrendered actual possession of the land. Hart v. Randolph, 142 111. 521, 32 N. E. 517; Wallace v. Berry, 83 Tex. 328, 18 S. W. 595, and cases cited. DEFEASANCE. 421 7. General denial. Evidence by defendant to establish a defeasance is compe- tent under a general denial.^ 1 Wakefield v. Day, 41 Minn. 344, 43 N. W. 71 ; Hamilton v. Byram, 122 Ind. 283, 23 N. E. 795. Or under a plea of not guilty. Herring v. White, 6 Tex. Civ. App. 249, 25 S. W. 1016. 8. Cogency of proof. The burden resting upon a party seeking to have an abso- lute deed declared a mortgage must be met by proof establish- ing the defeasance clearly, convincingly, and beyond a reason- able doubt. ^ iRunyon v. Pogue, 19 Ky. L. Eep. 940, 42 S. W. 910; Hausskneeht v. Smith, 11 App. Div. 185, 42 N. Y. Supp. 611; Ewing v. Keith, 16 Utah, 212, 52 Pae. 4; Wakefield v. Day, 41 Minn. 344, 43 N. W. 71; Barton v. Lynch, 69 Hun, 1, 23 N. Y. Supp. 217; Lewis v. Bayliss, 90 Tenn. 280, 16 S. W. 376; Watkins v. Williams, 123 N. C. 170, 31 S. E. 388; Langer v. Meservey, 80 Iowa, 158, 45 N. W. 732; Erwin v. Curtis, 43 Hun, 292. But see Wallace v. Berry, 83 Tex. 328, 18 S. W. 595 (holding that to so charge the jury is error) ; Winters v. Earl, 52 N. J. Eq. 52, 28 Atl. 15 (where it is held that the proof of the party attacking the deed must "outweigh that of his adversary") . It is not sufiicient to raise a suspicion of doubt as to whether the instru- ment which the parties had adopted as the evidence of their agree- ment correctly states the contract; but the party seeking to defeat the deed must establish his case by clear and convincing evidence, or, as has been otherwise expressed, by "strong and stringent evidence." Reeves v. Abercrombie, 108 Ala. 535, 91 So. 41. Its existence, and also its precise terms, must be established by clear and conclusive evidence; otherwise the strong presumption that the deed expresses the entire contract between the parties to it is not overcome. A conveyance of land in fee, so executed, acknowledged, and recorded, is of too great solemnity and of too much importance to be set aside or converted into a mere security upon loose or uncertain testimony, and it will not be unless the existence of the alleged oral defeasance is established beyond a reasonable doubt. Ensign v. Ensign, 120 N. y. 655, 24 N. E. 942; Ee Holmes, 79 App. Div. 264, 79 N. Y. Supp. 692. 422 BRIEF ON FACTS, DELIVERY. 1. Direct testimony. 2. Contemporaneoua records and entries. 3. Presumptions. a. Presumption from possession of instrument. b. Presumption from record. 4. Constructive delivery. 5. Parol evidence. 0. Rebutting delivery by proof of a condition. 7. Evidence of condition. 8. Presumption as to date. a. In general. b. Undated instrument. c. Exception in case of private unauthenticated paper. For cognate topics, see Assignment; Contbact; Date. 1. Direct testimony. A witness who was present may testify directly as to whether an instrument was delivered,* or possession of property was de- livered ; ^ leaving details to be called for on cross-examination. 1 Hincken v. Mutual Ben. L. Ins. Co. 50 N. Y. 657, affirming 6 Lans. 21 (where the party himself was asked if he had delivered the prelimi- nary proofs of interest and of death as required by the insurance policy). According to Burnap v. Sharpsteen, 149 111. 225, 36 N. E. 1008, however, a general statement that a deed and mortgage were delivered, made by witnesses who do not testify to any acts or words amounting to a delivery, is a mere legal conclusion, and is not compe- tent upon the question whether a delivery was actually made. In Phoenix F. & M. Ins. Co. v. Shoemaker, 95 Tenn. 72, 31 S. W. 270, it was held that, as to the question of delivery of a deed from husband to wife when no third person was present, neither the husband nor the wife could testify directly to that fact, but that she might testify that it had been in her possession since a certain date, and might show by the testimony of a third person that she had it. 8 Collins V. Manning, 1 N. Y. S. R. 204 (reversing for error on excluding question. Opinion by Daniels, J.). (But a witness who has stated the facts cannot give his opinion as to whether they constituted de- livery; yet, if an actor in the transaction, he may state the purpose of an act. See Interest; Possession). DELIVERY. 423 2. Contemporaneous records and entries. Contemporaneous records and entries may be competent to show delivery.^ 1 Barry v. Foyles, 1 Pet. 311, 7 L. ed. 157 (agent's acknowledgment of a number of articles delivered at different times) ; Digby v. Stedman, 1 Esp. 328 (shop books) ; New York v. Second Ave. R. Co. 102 N. Y. 572, 7 N. E. 905 (entries by one on information of others) ; Champ- neys v. Peek, 1 Starkie, 404 (indorsement by cleric, since deceased) ; Owen V. Williams, 114 Ind. 179, 15 N. E. 678 (statement indorsed by grantor on sealed envelop) ; Davis v. Pacific Improv. Co. 118 Cal. 45, 50 Pae. 7 (copy of record of deed). But Powell v. Murphy, 18 App. Div. 25, 45 N. Y. Supp. 374, holds merchant's account books made up from tickets for sales, returned by drivers, not competent in his favor to show testimony of the drivers that the goods repre- sented by the tickets were actually delivered. 3. Presumptions. a. Presumption from possession of instrument. — Possession of an executed * instrument by party thereto/ or his successor in interest claiming thereunder,' is sufBcient prima facie evi- dence of delivery.* But possession of a written instrument does not imply delivery if the instrument on its face shows that something is yet to be done to complete the transaction.® 1 Abbott, Trial Ev. 498. Otherwise of an instrument not countersigned when the terms of it require countersigning. Prall v. Mutual Pro- tection Life Assur. Soc. 5 Daly, 298, affirmed in 63 N. Y. 608, without opinion. 2 If there is a misnomer the burden is on the party producing the instru- ment to prove his identity with the one named. Andrews v. Dyer, 78 Me. 427, 6 Atl. 833 (deed to' Mercy A. produced by Melissa A.). 3 Compare Cowee v. Cornell, 75 N. Y. 91, 31 Am. Rep. 428. 4 Possession of tickets issued as tokens for delivery for successive loads, presumptive evidence of such deliveries. Bumsted v. Hoadley, 11 Hun, 487. For further applications of the rule, see: Toms v. Owen, 52 Fed. 417; Arrington v. Arrington, 122 Ala. 510, 26 So. 152; Campbell v. Carruth, 32 Fla. 264, 13 So. 432; Byers v. Gilmore, 10 Colo. App. 79, 50 Pac. 370; Carusi v. Savary, 6 App. D. C. 330; Massachusetts Ben. Life Asso. V. f^ibley, 158 111. 411, 42 N. E. 137; Rohr v. Alexander, 57 Kan. 381, 46 Pac. 699; Jones v. New York L. Ins. Co. 168 Mass. 245, 47 N. E. 92; Allen v. DeGroodt, — Mo. — , 15 S. W. 314, 105 Mo. 442, 16 S. W. 494; Vought v. Vought, 50 N. J. Eq. 177, 27 Atl. 424 BRIEF ON FACTS. 489; Strough V. Wilder, 119 N. Y. 530, 7 L.R.A. 555, 23 N. E. 1057; Devereux v. McMahon, 108 N. C. 134, 12 L.R.A. 205, 12 S. E. 902; Snodgrass v. Knight, 43 W. Va. 294, 27 S. E. 233; Studebaker Bros. Mfg. Co. V. Langson, 89 Wis. 200, 61 N. W. 773. 6 Amos-Ricliia v. Northweatern Mut. L. Ins. Co. 143 Mich. 684, 107 N. W. 707. 6. Preswmption from record. — The general rule undoubted- ly is that a presumption of delivery arises from the fact that a deed has been recorded. The weight of authority establish- es that the record of a deed, even when it appear that it was at the instance of the grantor, raises a presumption of delivery, so far as delivery is dependent upon his acts.^ So the delivery of a mortgage to the recorder, and subsequent possession by the grantee, are evidence of a delivery to him.^ But the rule that an instrument which has been recorded pursuant to statute may be received in evidence without fur- ther proof of delivery ^ rests on the presumption that a bene- ficial instrument has been accepted ; and does not avail to charge the grantee with personal liability, where he had no personal interest to accept.* And the presumption of delivery arising from record may be repelled by circumstantial evidence.* 1 Younge v. Guilbeau, 3 Wall. 636, 18 L. ed. 262; Lewis v. Watson, 98 Ala. 480, 22 L.R.A. 297, 39 Am. St. Rep. 82, 13 So. 570; Ellis v. Clark, 39 Fla. 714, 23 So. 410; Gordon v. Trimmier, 91 Ga. 472, 18 S. B. 404; Bovee v. Hinde, 135 111. 140, 25 N. E. 694; Colee v. Colee, 122 Ind. 109, 17 Am. St. Rep. 345, 23 N. E. 687; Button v. Smith, 88 Iowa, 238, 55 N. W. 326; Bunnell v. Bunnell, 111 Ky. 566, 64 S. W. 420, 65 S. W. 607; Cowell v. Daggett, 97 Mass. 434; Holmes v. McDonald, 119 Mich. 563, 75 Am. St. Rep. 430, 78 N. W. 647; Bab- bitt V. Bennett, 68 Minn. 260, 71 N. W. 22; Messelback v. Norman, 46 Hun, 414; Mitchell v. Ryan, 3 Ohio St. 387; Swiney v. Swiney, 14 Lea, 316; Bjmerland v. Eley, 15 Wash. 101, 45 Pac. 730. For notes discussing at length the question of record of deed or delivery for record, by grantor, see 54 L.R.A. 865, and 9 L.R.A. (N.S.) 224. 8 Foster v. Perkins, 42 Me. 168; Oxnard v. Blake, 45 Me. 602; Kuh v. Garvin, 125 Mo. 547, 28 S. W. 847; Wallis v. Taylor, 67 Tex. 431, 3 S. W. 321; MoCourt v. Myers, 8 Wis. 236. 3 Munoz V. Wilson, 111 N. Y. 295, 304, IS N. E. 855, and cases cited; Geiss- mann v. Wolf, 46 Hun, 289 (holding also that delivery of the bond recited in the mortgage may be inferred from record of the mort- DELIVEET. 425 gage); Fair Haven Marble & Marbleized Slate Co. v. Owens, 69 Vt. 246, 37 Atl. 749 ; Cumberland Land Co. v. Daniel, — Tenn. Ch. App. — , 52 S. W. 446; Mabe v. Mabe, 122 N. C. 852, 29 S. B. 843; Gustin V. Michelson, 55 Neb. 22, 75 N. W. 153; Hamilton v. Armatrong, 120 Mo. 597, 25 S. W. 545; Heil v. Redden, 45 Kan. 562, 26 Pac. 2; Flynn Sullivan, 91 Me. 355, 40 Atl. 136; Harshbarger v. Carroll, 163 HI. 636, 45 N. E. 565; Bates v. German Nat. Bank, 62 Ark. 7, 34 S. W. 85. 4Gifford V. Corrigan, 105 N. Y. 223, 227, 11 N. B. 498, approving and affirming, with modification, Gififord v. McCloskey, 38 Hun, 350. 5 ::noIls V. Barnhart, 71 N. Y. 474, afTirming 9 Hun, 443 (fact that possession of the land, though valuable, was never delivered, suf- ficient) ; Younge v. Guilbeau, 3 Wall. 636, 18 L. ed. 262 (especially with ignorance on part of grantee). See more fully on this question cases in note to Taylor v. Street (Ga.) 5 L.II.A. 121. 4. Constructive delivery. In case of a deed remaining in the possession of a grantor, there must be some evidence from which it may be inferred that the parties regarded it as delivered.^ Evidence that both parties were present and the usual for- malities of execution took place, and the contract was to all ap- pearances consummated without any condition or qualifica- tion annexed, is sufficient evidence of a complete and valid deed, notwithstanding it was left in the custody of the grant- 1 Bisher v. Hall, 41 N. Y. 416. 2 4 Kent, Com. 456. Approved in Wallace v. Berdell, 97 N. Y. 13, 22. Th« language of Spencer, J., in Jackson ex dem. Eames v. Phipps, 12 Johns. 418, 421, that delivery of a deed "must be either actual, by doing something and saying nothing, or else verbal, by saying something and doing nothing, or it may be by both," is approved in 1 Thompson on Trials, 873. See more fully on thia question note to Lee v. Fletcher (Minn.) 12 L.R.A. 171. 5. Parol evidence. Parol evidence is admissible to show the delivery of a deed.^ 1 Whitney v. Dewey, 10 Idaho, 633, 69 L.R.A. 572, 80 Pac. 1117. 6. Rebutting delivery by proof of a condition. Evidence that an unsealed contract or obligation was deliv- 426 BKIEF ON FACTS. ered by the maker to the other party may be rebutted by show- ing that the delivery was upon an oral condition that the in- strument should not take effect except in a contingency which has not occurred.^ Otherwise of a sealed instrument delivered to the grantee, or to his agent as such.* An oral condition that the instrument after taking effect should become void, or cease to have effect, is not competent as rebutting delivery.* 1 Seymour v. Cowing, 4 Abb. App. Dec. 200 (notes; leading case); Rey- nolds V. Robinson, 110 N. Y., 654, 18 N. E. 127 (contract for sale of merchandise, delivered on condition that reports of commercial agencies as to the buyer's responsibility should be sufBcient. Dictum, that the evidence is subject to suspicion and that the rule should be cautiously applied, and confined strictly to cases clearly within its reason) ; Brewers' F. Ins. Co. v. Burger, 10 Hun, 50 (subscription paper; evidence of previous oral agreement to subscribe on conditions, and that when paper was afterward signed it was on those conditions, competent); Biederman v. O'Conner, 117 111. 493, 7 N. E. 463 (con- tract to sell and deliver; evidence of condition that part payment should be made next day, competent. Conditional delivery may he proved under general denial) ; Burke v. Dulaney, 153 U. S. 228, 38 L. ed. 698, 14 Sup. Ct. Rep. 816 (note given for price of mining prop- erty; evidence that it was to be relinquished by holder at any time be- fore maturity if the maker chose to relinquish his option of purchase, competent) ; Tug River Coal & Salt Co. v. Brigel, 30 C. C. A. 415, 58 U. S. App. 320, 86 Fed. 81S (evidence that a contract was to take effect and become binding only after being submitted to, and approved by, counsel, competent) ; White v. Kahn, 103 Ala. 308, 15 So. 595 (subscription paper ) ; Trumbull v. O'Hara, 71 Conn. 172, 41 Atl. 546, and cases cited (oral evidence that note given for price of horse never became a binding contract because it was delivered on condition that it should be returned if the horse was not as war- ranted, competent) ; Cleveland Refining Co. v. Dunning, 115 Mich. 238, 73 N. W. 239 (evidence that written order for purchase of goods was given with the understanding that it was to be obligatory only in case the purchaser should be allowed to cancel a similar order previously given to another person, competent) ; Smith v. Mussetter, 58 Minn. 159, 59 N. W. 995 (note; where it was said that the dangers from this rule, and the consequent caution that should be exercised in considering a defense of this nature, were adverted to in Minneapolis Threshing Mach. Co. v. Davis, 40 Minn. 110, 3 L.R.A. 796, 41 N. W. 1026, but that the rule was too firmly established in the law to be DKLTVERy. 427 changed) ; Gallo v. New York, 15 App. Div. 6], 44 N. Y. Supp. 143; McCormick Harvesting Mach. Co. v. Faulkner, 7 S. D. 363, 64 N. W. 103; Gilman v. Gross, 97 Wis. 224, 72 N. W. 885, and cases cited (subscription for corporate stock) ; Nutting v. Minnesota F. Ins. Co. 98 Wis. 26, 73 N. W. 432, and cases cited (insurance policy). And see Champion Empire Min. Co. v. Bird, 7 Colo. App. 523, 44 Pac. 764, where the principle was recognized, but held inapplicable to the case at bar. See also cases reviewed in Browne on Parol Testimony, 52-55. zWorrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330 (leading -'se); Van Bokkelen v. Taylor, 62 N. Y. 105, reversing 2 Hun, 138, 4 'iliomp. & C. 422 (holding declarations that a composition deed was executed on parol conditions, incompetent) ; Mowry v. Heney, 86 Cal. 471, 25 Pac. 17 (where it was attempted to show that a deed delivered to the grantee was to take effect only in the event of the grantor's death) ; Eyan v. Cooke, 172 111. 302, 50 N. E. 213. Compare Blewitt v. Boorum, 142 N. Y. 357, 37 N. E. 119 (where it was held that the rule did not apply if the contract did not relate to real estate, and the presence of a seal was not necessary to its validity). See Browne on Parol Testimony, 279, where this question is treated at length. Contra. See Jones on Const, or Interp. of Contr. 225, to the effect that the rule applies to sealed instruments, citing Ford v. James, 2 Abb. App. Dec. 159, 163, and other cases. The rule as to sealed instruments does not exclude evidence to charge the obligee of a bond with notice that an obligor signed upon condition that the bond should not be delivered unless another signed also. See Belloni v. Freeborn, 63 N. Y. 383 ; 1 Abb. New Pr. & F. 68 ; Whitford V. Laidler, 94 N. Y. 145, 46 Am. Eep. 131, reversing 25 Hun, 136. 3 Tower v. Richardson, 6 Allen, 351 (notes); Hodge v. Security Ins. Co. 33 Hun, 583, 586 (policy) ; Lunsford v. Malsby, 101 Ga. 39, 28 S. E. 496 (notes). And see Trumbull v. O'Hara, 71 Conn. 172, 41 Atl. 546, dictum to the effect that it would not be competent to show that an absolute promise contained in the note in suit was, and was intended to be, in fact a conditional one. Compare McFar- land V. Sikes, 54 Conn. 250, 7 Atl. 408, where one charged with crim- inal assault, and urged to settle, gave his note to be held while he should consider the matter, stipulating that if he did not appear on the day fixed it should be held for the settlement, and if he did it should be canceled; and he did not appear. Held, a defense; and judgment on the note reversed. 7. Evidence of condition. To show that a delivery was conditional, it is not essential to prove that a condition was declared in express terms; but an intent that the delivery should be conditional may be inferred 428 BEIEIf OM" E'ACTS. from the acts of the parties and the circumstances of the case.* But parol evidence that a deed absolute on its face was deliv- ered on condition is inadmissible.^ 1 Smith V. Lynes, 5 N. Y. 41. See also note to Lee v. Fletcher (Minn.) 12 L.R.A. 171. 2 Whitney v. Dewey, 10 Idaho, 633, 69 L.R.A. 572, 80 Pac. 1117, and cases cited. 8. Presumption as to date. a. In general. — The general rule that the date inserted in an instrument is presumptively the date of its delivery * ap- plies notwithstanding it was acknowledged * or recorded at a later date.* This presumption may be rebutted by evidence of retention of possession,* or of actual delivery at a later date ; ° or by the execution thereafter of another instrument similar in all re- spects, which is, however, recorded long prior to the first in- strument.^ It is not rebutted, however, by proof that the con- sideration was not in fact paid.' iBriggs V. Fleming, 112 Ind. 313, 14 N. E. 86 (chattel mortgage); Purdy V. Coar, 109 N. Y. 448, 17 N. E. 352; Seobey v. Wallcer, 114 Ind. 254, 15 N. E. 674 (deed) ; Cowing v. Altman, 71 N. Y. 435, 27 Am. Rep. 70, reversing 5 Hun, 556; and overruling, in effect, 1 Thomp. & C. 494 (check) ; Taylor v. Kinlock, 1 Starkie, 175 (promissory note) ; Pier v. Finch, 24 Barb. 514 (railroad ticket) ; Fowler v. Merrill, 11 How. 375, 13 L. ed. 736 (mortgage) ; Peoria Sav. Loan & T. Co. v. Elder, 165 111. 55, 45 N. E. 1083 (note) ; Windom v. Schuppel, 39 Minn. 35, 38 N. W. 757 (deed) ; Morgan v. Burrow, — Miss. — , 16 So. 432 (note) ; Kendrick v. Mutual Ben. L. Ins. Co. 124 N. C. 315, 32 S. E. 728 (insurance policy). See also Abbott, Trial Ev. 2d ed. 505. This presumption does not arise as to a deed of a freehold, if there is no proof or acknowledgment, nor subscribing witness. Harris v. Norton, 16 Barb. 264; Genter v. Morrison, 31 Barb. 155. 8 People V. Snyder, 41 N. Y. 397, affirming 51 Barb. 589 (so held of a deed, although acknowledgment was dated three years later) ; Gordon V. San Diego, 108 Cal. 264, 41 Pac. 301 (acknowledgment six months later) ; Lake Erie & W. R. Co. v. Whitham, 155 111. 514, 28 L.R.A. 612, 40 N. E. 1014; Biglow, 39 App. Div. 103, 56 N. Y. Sujjp. 794. Contra. As to acknowledged instrument, Mclntyre v. Strong, 16 Jones & S. 127, 63 How. Pr. 43. DELIVEEY. 429 3 Robinson v. Wheeler, 25 N. Y. 252; Nichols v. Sadler, 99 Iowa, 429, 68 N. W. 709. See also Abbott, Trial Ev. 2d ed. 652, 876. 4 Wyckoff V. Remsen, 11 Paige, 564. And see eases reviewed in Wallace V. Berdell, 97 N. Y. 13, and Abbott, Trial Ev. 2d ed. 876. 6 United States v. LeBaron, 19 How. 73, 15 L. ed. 525; Furguson v. Bond, 39 W. Va. 561, 20 S. E. 591; Kraemer v. Adelsberger, 122 N. Y. 467, 25 N. E. 859. SFlynn v. Flyiin, — N. J. Eq. —,31 Atl. 30. 7 Gerke v. Cameron, — Cal. — , 50 Pac. 434. h. Undated instrument. — In the case of an undated instru- ment, the date of an acknowledgment certified thereon,' or of the cancelation of a revenue stamp thereon,^ is presumptively the date of delivery. IBank of Utica v. Mersereau, 3 Barb. Ch. 528, 585 (at or about the time). SHolbrook v. New Jersey Zinc Co. 57 N. Y. 616. c. Exception in case of private unauthenticated paper. — The rule that the date of a document is presumptively correct does not apply to a document which is not of a public nature nor formally authenticated, and did not proceed from the party against whom it is offered, when its competency or ma- teriality depends upon its date ; but in such case other evidence of its true date must be given, unless it is sanctioned by the rule receiving entries made in the course of duty, etc.' 1 See § 8, Date, and Abbott, Trial Ev. 18, 61, 355 ; but see Id. p. 2. 430 BEIEF ON FACTS. DEMAND AND KEFUSAL. 1. Oral and written. 2. On servant. 3. Reasons for refusal. See also Letters. 1. Oral and written. An independent oral demand,'' though made at the same time with delivery of a written one, is competent; but the conver- sation had with the mere bearer of a written demand is not competent without producing or accounting for the writing.* 1 Smith V. Young, 1 Campb. 439. 2 Abbott, Trial Ev. 266; Glenn v. Rogers, 3 Md. 312. 2. On servant. Evidence of a demand on a servant in possession, though he knew its rightfulness, is not sufficient unless it be shown that he was authorized to act, or instructed to refuse, or that his employer had withdrawn so as to prevent demand on himself.^ 1 Goodwin v. Wertheimer, 99 N. Y. 149, 1 N. E. 404 (demand, to put as- signee for Benefit of creditors in the wrong ) . 3. Reasons for refusal. If one party proves a demand and refusal, the other has a right to prove the reasons which were given by him at the time for the refusal.^ 1 Bennett v. Burch, 1 Denlo, 141. But this does not let in a narrative of a long series of independent facts. Walrod V. Ball, 9 Barb. 271. DEJSIAL. 431 DENIAL. 1. Form in pleading. 2. General denial. 3. Specific denial. For evidence in contradiction, or evidence to prove a negative, see Contba- DIOTION; COEKOBOBATION ; NEGATIVE; SUBPRISB. 1. Form in pleading. A denial may properly be either positive, or -upon informa- tion and belief, or of knowledge or information sufficient to form a belief.^ Merely giving a different and inconsistent version is not suf- ficient as a denial of the version given in the adversary's plead- 1 Bennett v. Leeds Mfg. Co. 110 N. Y. 150, 17 N. E. 669, and note to CHark V. Dillon, 15 Abb. N. C. 269; Ledgerwood Mfg. Co. v. Baird, 14 Abb. N. C. 319. An allegation by defendant that he has no knowledge or information suffi- cient to form a belief as to whether the plaintiff is the owner of cer- tain specified property constitutes a denial. Pray v. Todd, 71 App. Div. 391, 75 N. Y. Supp. 947. 2 Wood v. Whiting, 21 Barb. 190; Swinburne v. Stockwell, 58 How. Pr. 312; Miller v. Winehoffer, N. Y. Daily Eeg. March 30, 1881. A denial must be general or specific, and cannot be implied from a state- ment inconsistent with an allegation in the complaint as to a material fact. Smith v. Coe, 170 N. Y. 162, 63 N. E. 57, affirming 55 App. Div. 585, 67 N. Y. Supp. 350. If the facts stated in the complaint are presumptively within defendant's knowledge, his denial of any knowledge sufficient to form a belief is frivolous. Eochkind v. Perlman, 123 App. Div. 808, 108 N. Y. Supp. 224, 1151. 2. General denial. The new procedure has superseded the rule that under the general issue anything may be proved which shows that plain- tiff never had a cause of action,^ and a general denial now only admits evidence going to controvert something that plaintiff 432 BEIEF ON FACTS. will be obliged to prove under his pleading in order to recover what he seeks.^ But a different version may be proved under a denial, although merely alleging a different version is not equivalent to a denial.* ISTor does pleading what is competent under the general issue abridge the scope of the proof under the general issue.* Illegality cannot be proved under a general denial ; ° but the court have power, on grounds of public policy, to dismiss an action or overrule a defense if illegality appears in the evidence adduced in support of it.® i For the common-law rule as to what may be shown under the general issue, and a review of cases, see Gould on Pleading (Hamilton's ed. 1899) 300-323. See also Shimp v. Siedel, 6 Houst. (Del.) 421; Ka- pischki v. Koch, 180 111. 44, 54 N. E. 179 (to the effect that in actions on the case it is competent under a general denial to give in evidence a former adjudication, satisfaction, or any other matter ex post facto, which shows that the cause of action has been discharged) ; Forrestell V. Wood, — Md. — , 23 Atl. 133; Gregory v. Tomlinson, 68 Vt. 410, 35 Atl. 350; Cargill v. Atwood, 18 E,. I. 303, 27 Atl. 214 (to the effect that the general issue puts plaintiff upon proving his whole case, and entitles defendant, without special notice, to give evidence of any- thing which shows that plaintiff ought not to recover). Under a general denial the defendant cannot show title in a stranger. Ten Eyck V. Keller, 99 App. Div. 106, 91 N. Y. Supp. 169. In Rhode Island, under the judiciary act, chap. 17, § 3 (Gen. Laws, chap. 237, § 3), the plea of the general issue is to be deemed a part of the record in a case which is certified to the common pleas division on a, claim for jury trial, when there was an entry of appearance by defendant in the district court, and hence any evidence properly admissible under such a plea is competent without filing such plea. Collier v. Jenks, 19 R. I. 493, 34 Atl. 998. 2 Anything which tends to controvert the material allegations of fact in the complaint may be shown under a general denial, but no evidence of new matter can be offered to avoid the legal effect or operation of such facts. Iselin v. Simon, 62 Minn. 128, 64 N. W. 143. See also Eastman v. Gurrey, 15 Utah, 410, 49 Pac. 310, and cases cited; Rob- inson V. Peru Plow & Wheel Co. 1 Okla. 140, 31 Pac. 988; Brady v. Hutkoff, 13 Misc. 515, 34 N. Y. Supp. 947; Roemer v. Striker, 142 N. Y. 134, 36 N. E. 808 (where defendant, who was sued for injuries from careless blasting, was allowed to show that the act was not his, but was in fact the act of another) ; Tompkins v. Tompkins, 78 Hun, 220, 28 N. Y. Supp. 903; Thoburn v. Campbell, 80 Iowa, 338, 45 N. W. 769; Jackson v. Kansas City Pkg. Co. 42 Minn. 382, 44 N. W. 126; Griffith v. Woolworth, 28 Neb. 715, 44 N. W. 1137; Mis- DEPOSIT IN BANK. 433 souri P. R. Co. v. Wichita Wholesale Grocery Co. 55 Kan. 525, 40 Pac. 899; Beville v. Cox, 109 N. C. 265, 13 S. E. 800; Clark v. Wick, 25 Or. 446, 36 Pac. 165; Bruce v. Foley, 18 Wash. 96, 50 Pac. 935; Anderson v. Rasmussen, 5 Wyo. 44, 36 Pa. 820. See also the eases collected in note to Cary v. Western U. Teleg. Co. 20 Abb. N. C. 342. with application of the rule to various classes of action. 'S See authorities cited under § 1, this title. ■4 Gregory v. Tonilinson, 68 Vt. 410, 35 Atl. 350. 6Milbank v. Jones, 127 N. Y. 370, 28 N. E. 31; Dillon v. Darst, 48 Neb. 803, 67 N. W. 783; Dodge v. McMahan, 61 Minn. 175, 63 N. W. 407; Barber Asphalt Pav. Co. v. Botsford, 56 Kan. 532, 44 Pac. 3. See also cases reviewed in article on this question by Judge Thompson, 33 Am. L. Rev. 535. * The authorities on illegality as a defense are collected in a note to May V. Burras, 13 Abb. N. C. 388, and see Cary v. Western U. Teleg. Co. 20 Abb. N. C. 333. 3. Specific denial. A denial is not good as a speciiic denial, unless it points to the allegations intended to be denied so specifically as to identi- fy those allegatipns at once without argument or explanation. Reference merely by folio is bad, because folioing is changed ■when the record is made up.* INote to Clark v. Dillon, 15 Abb. N. C. 269, 276, 282; and see Baylis v. Stimson, 110 N. Y. 621, 17 N. E. 144, affirming 21 Jones & S. 225. DEPOSIT m BAN"K. 'Tracing. In order to trace funds, the making, date, and amount of a deposit in bank, and the medium of paying in, as bills or ■checks, may be proved against the depositor and those claiming under him, by producing from the possession of the bank the ■deposit ticket in the handwriting of the depositor, and proving the usual course of making deposits by the testimony of any of- ficer or clerk in the bank familiar with the course of business.' i Justice Bosworth as referee, in Harrington v. Keteltas, N. Y. 1880 (MSS.) Affirmed in 92 N. Y. 40. Abd. Facts — 28. 434 BEIEF ON FACTS. DESEKTION. See also Abandonment, V.; Intent. Beclarations. Declarations by the wife, to prove her nonconsent* 1 Bealor v. Hahn, 117 Pa. 169, 11 Atl. 776. To disprove wilfulness. Hart v. McGrew, 8 Sadler (Pa.) 505, 11 Atl. 617. DICTAGEAPH. The dictagraph seems to have made its appearance in a court of justice but once,'' so far as reported cases show and on this occasion the conversations taken over the dictagraph were permitted to go to the jury by agreement of counsel on both sides, so that the case is of little value as a precedent. However, there would seem to be as much reason for permitting the introduction of this kind of evidence, when the accuracy of the report and the identity of the speakers are properly established, as there is for receiving evidence' of conversations over the telephone,^ or permitting the operation of a phonograph before the jury.' 1 State V. Diegle, 11 Ohio N. P. N. S. 593, and the companion case of State V. Andrews, 11 Ohio N. P. N. S. 605, affirmed in 14 Ohio C. C. (N. S. ) 289. The court, in its charge to the jury in the Diegle Case (reported in 9 Ohio Law Reporter, 609), called attention to the fact that this was the first time that the dictagraph had made its appear- ance in court, but said nothing further as to the admissibility of this class of evidence. The interest of the public in the dictagraph was aroused by its use in pro- curing evidence against the McNamara brothers as the instigators of the California dynamiting outrages, and the newspapers of the coun- try gave, at that time, detailed descriptions of the machine and its method of operation. According to press reports, the dictagraph was also recently used in New- castle, Wyoming, to record the conversations of prisoners charged with murder, who occupied adjoining cells, and the evidence thus ob- tained was admitted at the trial and a conviction obtained on the strength of it. 2 As to admissibility of telephone conversations, see post. Telephones, and notes in 17 L.R.A. 440, and 6 L.E.A.(N.S.) 1180. SBoyne City, G. & A. R. Co. v. Anderson, 146 Jlich. 328, 8 L.R.A. (N.S.) 306, 117 Am. St. Rep. 642, 109 N. w. 429, 10 Ann. Cas. 283. DOMICIL. 435 DOMIOIL. 1. Presumptions. 2. Res gestw. 3. Testimony of person as to his intent. See also Absence; Exsidence. 1. Presumptions. The place where a person lives is taken to he his domicil until facts adduced estahlish the contrary; and a domicil, when acquired, is presumed to continue until it is shown to have been changed.^ The domicil of the parents is presumed to be the domicil of a minor child.^ 1 Anderson v. Watt, 138 U. S: 694, 34 L. ed. 1078, 11 Sup. Ct. Rep. 449; Price V. Price, 156 Pa. 617, 27 Atl. 291; Mowery v. Latham, 17 R. I. 480, 23 Atl. 13; Pickering v. Cambridge, 144 Mass. 244, 10 N. E. 827; Simmons' Succession, 109 La. 1095, 34 So. 101. As to proof of domicil in actions by or against heirs and next of kin, devisees, and legatees, see Abb. Trial Ev. 2d ed. 130. As to domicil for purposes of divorce, Mellen v. Mellen, 10 Abb. N. C. 333, note; 28 Cent. L. J. 498; note to Loker v. Gerald (Mass.) 16 L.R.A. 497. As to change of domicil of minor, Lamar v. Micou, 112 U. S. 452, 470, 28 L. ed. 751, 5 Sup. Ct. Rep. 221; of insane person, Talbot v. Chamber- lain, 149 Mass. 57, 32 L.R.A. 254, 20 N. E. 305. As to change by entering public service. Ex parte Cunningham, L. R. 13 Q. B. Div. 418, 53 L. J. Ch. N. S. 1067 ; Lauderdale Peerage Case, 17 Abb. N. C. 439. 2 Wirsig V. Scott, 79 Neb. 322, 112 N. W. 655. 2. Res gestse. All of a person's acts and conduct fairly indicating his pur- pose, within a reasonable time before and after he changed his place of abode, together with his accompanying declarations, are competent on the question whether he intended to change his domicil.^ IViles V. Waltham, 157 Mass. 542, 32 N. E. 901. The declarations can- not, however, be mere narrative of a past occurrence. The acts done must be admissible in evidence, and the declarations must accompany the acts, and be so connected vpith them as to characterize them, or to 436 BHIEF ON PACTS. indicate the purpose and intention with which the acts were done. Piclcering v. Cambridge, 144 Mass. 244, 10 N. E. 827. But Chase v. Chase, 66 N. H. 588, 29 Atl. 553, holds that evidence of statements made by one whose domicil at his death is in issue as to his intention in going to, returning from, or staying at, a certain place, is compe- tent whether such declarations were res gestae or not, his intention being an independent question. 3. Testimony of person as to his intent. On an issue as to the character of a person's stay or abode in a certain place, whether it was permanent or temporary, he may testify as to his intent.' And on an issue whether a per- son who has left one place of residence has changed his domicil, he may testify as to his intent in leaving.* iHulett V. Hulett, 37 Vt. 586; Kennedy v. Kyall, 67 N. Y. 379; Albion v. Maple Lake, 71 Minn. 503, 74 N. W. 282. 2Reeder v. Holcomb, 105 Mass. 94; Fisk v. Chester, 8 Gray, 506. On the general question of right of one to testify as to this intent, sec extensive note in 23 L.R.A.(N.S.) 367. DUMMY. 1. Bound by evidence. 2. Effect on rights and liabilities. For cognate topics, see Agency; Ficiitious Pebsows. 1. Bound by evidence. Evidence which would he competent against the real party in interest is competent against the dummy.' IBallou V. Ballou, 110 N. Y. 394, 1 L.E.A. 462, 18 N. E. 118 (judgment against husband, competent against wife, in action affecting the prop- erty standing in her name ) . 2. Effect on rights and liabilities. Transfer of stock to a dummy in view of impending liability not effective to terminate transferrer's liability.' Otherwise of a transfer made to preclude possible liability, at a time when there was no present reason to anticipate any.* 1 Gcrmania Nat. Bank v. Case, 99 U. S. 628, 632, 25 L. ed. 448. 2 Anderson v. Philadelphia Wareliouse Co. ]]1 U. S. 479, 28 L. ed. 478, 5 Sup. Ct. Rep. 525. DUTY. 43 'i DUTY. 1. Direct testimony. a. Scope of duty. / b. Performance. 2. Printed rules or instructions. See also Agency; Cabe; Cause. 1. Direct testimony. a. Scope of duty. — ^Where duty depends on the usual course of business, as showing whether a matter was or was not within the scope of one's duty, what are the general duties of a given position is matter of fact to which a witness familiar with the employment may testify.* Otherwise where duty depends on the law, or on written in- structions, and is directly in question ; ^ but a usage material as qualifying the duty may be proved if not too remote.* 1 Missouri P. R. Co. v. Mackey, 33 Kan. 298, 6 Pac. 291, 295. But the witness, although qualified to speak generally as to the duties of like positions in other businesses of the same character, must show knowl- edge of the duties of the position in question before he can testify tlfereto, unless there is evidence that such duties are common to all other like businesses. McCray v. Galveston, H. & S. A. R. Co. 89 Tex. 168, 34 S. W. 95. 2 Gratiot v. United States, 4 How. 80, 112, 11 L. ed. 884, 889; United States V. Buchanan, 8 How. 83, 12 L. ed. 997; People ex rel. Sears V. Tobey, 153 N. Y. 381, 47 N. E. 800, s. p., Dunlop v. Munroe, 7 Cranch, 242, 3 L. ed. 329. And that printed rules or instructions as to the duties of a given position are the best evidence of those duties, and that oral evidence is incompe- tent except after proper foundation for it as secondary evidence, see Georgia P. R. Co. v. Propst, 90 Ala. 1, 7 So. 635; St. Louis, A. & T. H. R. Co. V. Bauer, 156 111. 106, 40 N. E. 448; Price v. Richmond & D. R. Co. 38 S. C. 199, 17 S. E. 732; Stoll v. Daly Min. Co. 19 Utah, 271, 57 Pac. 295 ; Galveston, H. & S. A. R. Co. v. Pitts, — Tex. Civ. App. — , 42 S. W. 255. S Compare Johnston v. Jones, 1 Black, 209, 17 Ti. ed. 117, with Rex v. Cope, 7 Car. & P.' 720. 438 BEIEF ON TACTS. And that evidence of usage and custom is competent to show duties other than those imposed by the by-laws of a corporation, — especially where those by-laws provide that such other duties and orders of the direct- ors as may be required in the transaction of the business shall be performed, see State v. Silva, 130 Mo. 440, 32 S. W. 1007. h. Performance. — Where the propriety of conduct in the performance of duty depends on experience of facts not within the common knowledge of men of common education and ordin- ary experience, an expert may be asked what would be the duty of a person under given circumstances ; * but not what was the duty in the case in hand, for this is the question for the jury.^ 1 See Cabe; Cause; Opinions. Or where his duties required him to be while performing the particular service. Helton v. Alabama Midland R. Co. 97 Ala. 275, 12 So. 276. But he must show himself qualified to speak on the subject. Farber v. Missouri P. R. Co. 116 Mo. 81, 20 L.E.A. 350, 22 S. W. 631. 2 In Campbell v. Eickards, 5 Barn. & Ad. 840, 846, Lord Denman said: "Witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which others would prob- ably be influenced, if the parties had acted in one way rather than another." See also Lord Mansfield's opinion in Carter v. Boehm, 3 Burr. 1913, 1914, approved in Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 473, 24 L. ed. 256, 258. 2. Printed rules or instructions. Upon the question whether the manner in which a person performed an act was a violation of a duty owing by him, print- ed rules or instructions pertaining to that act and prescribing the manner of its performance are not competent unless accom- panied by proof that the person whose conduct is in question had knowledge of such rules or instructions.^ 1 Maekey v. Baltimore & P. R. Co. 8 Mackey, 282 ; Louisville, N. A. & C. R. Co. V. Berkey, 136 Ind. 181, 35 N. E. 3; Chicago, K. & W. R. Co. v. itansom, 56 Kan. 559, 44 Pac. 6; Dougherty v. Philadelphia & R. R. Co. 171 Pa. 457, 33 Atl. 340 (where it appeared that they were not promulgated until after the act in question ) . Contra : Parker v. Georgia P. R. Co. 83 Ga. 539, 10 S. E. 233 (where it is said that whether he had knowledge of them or not was a question not going to their competency in evidence, but to their binding effect upon his DUTY. 439 conduct). See also Memphis & C. R. Co. v. Askew, 90 Ala. 5, 7 So. 823, where, althougli knowledge of them was denied, they were never- theless admitted. And in Dugan v. Chicago, St. P. M. & 0. R. Co. 85 Wis. 609, 55 N. W. 894, they were admitted without reference to the question of knowledge. But they must appertain to the act in question; and it is not proper to give in rules pertaining to the duties as a whole of the person whose conduct is in question, but it should be restricted to the rule showing the particular duty. Memphis & C. R. Co. v. Askew, 90 Ala. 5, 7 So. 823. Thus, rules regulating the speed of trains generally are not competent upon the question whether the speed of a train at a speci- fied place exceeded the limit, where the limit for that place is fixed by a special rule. Laird v. Chicago, R. I. & P. R. Co, 100 Iowa, 336, 69 N. W. 414. Nor are the rules of a railroad company governing the conduct of its employees in the management of trains upon the road competent upon a question of negligent conduct in respect to the management of trains in the freight yard, where they were not intended to apply to trains in the yard. Caron v. Boston & A. R. Co. 167 Mass. 72, 44 N. E. 1085. As to the sufficiency of showing of knowledge, see note to Nolan v. New York, N. H. & H. E. Co. (Conn.) 43 L.R.A. 305, 356 et seq. See also Knowledge. 4-40 BEIEF ON FACTS. DYING DECLAEATIONS. I. In Civil Cases. II. In Criminal Cases. 1. In general. 2. In favor of defendant. 3. Whose declarations admissible. 4. Subject of declarations. 5. Mental and physical conditions. a. In general. b. Belief in after-accountability. 6. Time elapsing between declaration and death. 7. Form and completeness of declaration; oral or ■written. 8. When there is other evidence of the same facts. 9. Questions for court or jury. 10. Eight to impeach or contradict and to sustain declarant. 11. Weight to which entitled. I. In Civil Cases. Dying declarations are in civil cases mere hearsay, and not admissible in evidence,* even in justification of defamation by charge of crime.* iWaldele v. New York C. & H. E. E. Co. 61 How. Pr. 350; Brown v. L. C. & L. E. Co. 7 Ky. L. Eep. 96; East Tennessee, V. & G. R. Co. v. Maloy, 77 Ga. 237, 2 S. E. 941; Marshall v. Chicago & G. E. E. Co. 48 111. 475, 95 Am. Dec. 561; Daily v. New York & N. H. E. Co. 32 Conn. 356, 87 Am. Dec. 176; Friedman v. Eailroad Co. 7 Phila. 203; Bionto V. Illinois C. E. Co. 125 La. 147, 27 L.E.A.(N.S.) 1030, 51 So. 98 (actions for personal injuries) ; Thayer v. Lombard, 165 Mass. 174, 52 Am. St. Rep. 507, 42 N. E. 563 (action on contract) ; Wooten V. Wilkins, 39 Ga. 223, 99 Am. Dec. 45? (action for seduction of daughter who subsequently died ) . 2Barfleld V. Britt, 47 N. C. (2 Jones L.) 41, 62 Am. Dec. 190, note. II. In Criminal Cases. 1. In general. The admission of dying declarations in evidence, even in criminal cases, is confined at common law to cases of homicide, where the death of the deceased is the subject of the charge.* DYING DECLARATIONS. 441 The admission of such declarations is an exception to the doc- trine that hearsay testimony will not be received, and is most justly grounded upon necessity.^ 1 United States v. McDurk, 1 Cranch, C. C. 71, Fed. Cas. No. 15,680; Oliver V. State, 17 Ala. 587; People v. Hall, 94 Cal. 595, 30 Pac. 7; Mc- Bride v. People, 5 Colo. App. 91, 37 Pac. 953; Parks v. State, 105 Ga. 242, 31 S. E. 580; North v. People, 139 111. 81, 28 N. E. 966; Binns v. State, 46 Ind. 311; Walston t. Com. 16 B. Mon. 15; Me- Daniel v. State, 8 Smedes & M. 401, 47 Am. Dec. 93; State v. Jeffer- son, 77 Mo. 136; People v. Davis, 56 N. Y. 95; State v. Harper, 35 Ohio St. 78, 35 Am. Rep. 596; Railing v. Com. 110 Pa. 100, 1 Atl. 314, 6 Am. Grim. Rep. 7; State v. Paile, 43 S. C. 52, 20 S. E. 798; Wright V. State, 41 Tex. 246; Crookham v. State, 5 W. Va. 510; Miller v. State, 25 Wis. 384; Rex. v. Hutchinson, 2 Barn. & C. 608, note. Thus, upon an indictment for unlawfully using an instrument upon the person of a woman, with the intent to destroy a vitalized embryo, in consequence of which she died, her dying declarations are inadmis- sible. State v. Harper, 35 Ohio St. 78, 35 Am. Rep. 596; Reg. v. Hind, 8 Cox, C. C. 300, Bell, C. C. 253, 29 L. J. Mag. Cas. N. S. 147, 6 Jur. N. S. 514, 2 L. T. N. S. 253, 8 Week. Rep. 421. So on a charge of rape, where the victim subsequently killed herself. Reg. v. Newton, 1 Fost. & F. 641. SMose V. State, 35 Ala. 421; Newberry v. State, 68 Ark. 355, 58 S. W. 351; People v. Glenn, 10 Cal. 32; Graves v. People, 18 Colo. 170, 32 Pac. 63; Leiber v. Com. 9 Bush, 11, 1 Am. Crim. Rep. 309; Peoples V. Com. 87 Ky. 487, 9 S. W. 509, 810; State v. Wagner, 61 Me. 178; People v. Lonsdale, 122 Mich. 388, 81 N. W. 277, 12 Am. Crim. Rep. 256; Brown v. State, 32 Miss. 433; State v. Wensell, 98 Mo. 137, 11 S. W. 614; Fitzgerald v. State, 11 Neb. 577, 10 N. W. 495; Hackett v. People, 54 Barb. 370; Barfield v. Britt, 47 N. C. (2 Jones, L) 41, 62 Am. Dec. 190; State v. Garrand, 5 Or. 216; Com. v. Sullivan, 13 Phila. 410; Nelson v. State, 7 Humph. 542; Warren v. State, 9 Tex. App. 619, 35 Am. Rep. 745. 2. In favor of defendant. The rule is that dying declarations of the deceased may be given in evidence, as well to acquit as to convict the accused; and they are not limited as evidence, in favor of the state alone.* 1 Moore v. State, 12 Ala. 764, 46 Am. Dec. 276 ; Mattox v. United States, 146 U. S. 140, 36 L. ed. 917, 13 Sup. Ct. Rep. 50; People v. Knapp, 26 Mich. 112; Brock v. Com. 92 Ky. 183, 17 S. W. 337; People v. Southern, 120 Cal. 645, 53 Pac. 214; Rex v. Scaife, 1 Moody & R. 55], 2 Lewin, C. C. 150. 442 BEIEF ON FACTS. 3. Whose declarations admissible. The accused being on trial for the murder of one person, it is not competent to admit dying declarations of another per- son who was killed in the same affray, such declarations being admissible only when coming from the person for whose mur- der the prisoner is indicted.' The dying declarations of a wife are admissible against her husband on trial for murdering her,^ and the declarations of a husband are admissible against his wife when she is accused of killing him.^ But a declaration in articulo mortis, made by a child only four years old, is not admissible on the trial of an indictment for the murder of such child, because of the child's incompetency to make such a decla- ration.* 1 State V. Fitzhugh, 2 Or. 227; State v. Westfall, 49 Iowa, 328, 3 Am. Crim. Eep. 343; State v. Bohan, 15 Kan. 407, 2 Am. Grim. Eep. 278; Brown v. Com. 73 Pa. 321, 13 Am. Kep. 740; Krebs v. State, 3 Tex. App. 348; State v. Terrell, 12 Rich. L. 321. So the dying declarations of a witness to a homicide are not admissible. Poteete v. State, 9 Baxt. 261, 40 Am. Rep. 90. 2 People V. Green, 1 Denio, 615; State v. Belcher, 13 S. C. 459; Com. v. Stoops, Addison (Pa.) 381. s Moore v. State, 12 Ala. 764, 46 Am. Dec. 276. 4 Rex V. Pike, 3 Car. & P. 598. 4. Subject of declarations. Dying declarations are only admissible as to actual facts which point distinctly to the cause of death, and to the circum- stances producing and attending it.' They are not admissible where they relate to matters antecedent or subsequent to the transaction which are the cause of the death.^ And the gen- eral rule is that matters of opinion, and conclusions and conjec- ture, stated by the person whose dying declarations are sought to be admitted, are inadmissible, since such declarations must speak to facts only.* 1 Oliver v. State, 17 Ala. 587; Allen f. State, 70 Ark. 337, 68 S. W. 28; People V. Taylor, 59 Cal. 640; Savage v. State, 18 Fla. 909; Parks v. State, 105 Ga. 242, 31 S. E. 580; North v. People, 139 111. 81, 28 N. E. 966; Montgomery v. State, 80 Ind. 338, 41 Am. Eep. 815; State V. Baldwin, 79 Iowa, 714, 45 N. VV. 297, 8 Am. Crim. Rep. 566; State v. O'Shea, 60 Kan. 772, 57 Pao. 970; Pace v. Com. 89 Ky. 204, 12 DYIITG DECLAEATIONS. 443 S. W. 271; State v. Black, 42 La. Ann. 861, 8 So. 594; People v. Olmstead, 30 Mich. 431, 1 Am. Crim. Rep. 301; Merrill v. State, 58 Miss. 65; State v. Draper, 65 Mo. 335, 27 Am. Rep. 287; People v. Davis, 56 N. Y. 95; State v. Harper, 35 Ohio St. 78, 35 Am. Rep. 596; Com. V. Murray, 2 Aslim. (Pa.) 41; State v. Banister, 35 S. C. 290, 14 S. E. 678; Nelson v. State, 7 Humph. 542; State v. Dickinson, 41 Wis. 299, 2 Am. Crim. Rep. 1 ; Rex v. Hutchinson, 2 Barn. & C. 608, note. 8 Perry v. State, 102 Ga. 365, 30 S. E. 903; Binns v. State, 46 Ind. 311; State V. Perigo, 80 Iowa, 37, 45 N. W. 399 ; State v. O'Shea, 60 Kan. 772, 57 Pac. 970; Peoples v. Com. 87 Ky. 487, 9 S. W. 509, 810; Lips- comb T. State, 75 Miss. 559, 23 So. 210, 230; State v. Draper, 65 Mo. 335, 27 Am. Rep. 287 ; Medina v. State, 43 Tex. Crim. Rep. 52, 63 S. W. 331, 12 Am. Crim. Rep. 246; State v. Moody, 18 Wash. 365, 51 Pac. 356. 3 United States v. Veitch, 1 Cranch, C. C. 115, Fed. Gas. No. 16,614; People V. Taylor, 59 Cal. 640; McBride v. People, 5 Colo. App. 91, 37 Pac. 953; Darby v. State, 79 Ga. 63, 3 S. E. 663; Barnett v. People, 54 111. 325; Morgan v. State, 31 Ind. 193; State v. Donnelly, 69 Iowa, 705, 58 Am. Rep. 234, 27 N. W. 369 ; Luby v. Com. 12 Bush, 1 ; State v. Black, 42 La. Ann. 861, 8 So. 594; Payne v. State, 61 Miss. 161, 4 Am. Crim. Rep. 155; State v. Chambers, 87 Mo. 406; State v. Pat- rick, 48 N. C. (3 Jones, L.) 443; Medina v. State, 43 Tex. Crim. Rep. 52, 63 S. W. 331, 12 Am. Crim. Rep. 246. 5. Mental and physical conditions. a. In general. — ^Dying declarations, to he admissible as such, must be made in extremis, when the declarant is at the very point of death,^ and they must be made under a conscious- ness on the part of the declarant of impending death.* And, according to the weight of authority, this sense of impending death must consist of an apprehension of imminent, or almost immediate, dissolution,' though this proposition is by no means sustained by all the decisions.* With but few exceptions the authorities also hold that there must have been a complete abandonment on the part of the declarant of all hope of re- covery.^ And, of course, the declarant must have been in pos- session of his mental faculties at the time of making the dec- laration.* The existence of these mental conditions may be evidenced by statements of the declarant alone,'' such statements combined with surrounding circumstances,' by the circumstan- ces in the absence of a statement by declarant,' by sending for a 444 BEIEF ON FACTS. priest,*" by arranging business affairs,** or by expression of phy- sician's opinion.** iPulliam V. State, 88 Ala. 1, 6 So. 839; Graves v. People, 18 Colo. 170, 32 Pae. 63; Campbell v. State, 11 Ga. 355; Morgan v. State, 31 Ind. 193; Com. v. Matthews, 89 Ky. 287, 12 S. W. 333; McLean v. State, — Miss. — , 12 So. 905; Kastner v. State, 58 Neb. 767, 79 N. W. 713; Montgomery v. State, 11 Ohio, 424; State v. Johnson, 26 S. C. 152, 1 S. E. 510, 7 Am. Crim. Eep. 366; Curtis v. State, 14 Lea, 502; Gibson V. Com. 2 Va. Cas. Ill; State v. Cameron, 2 Chand. (Wis.) 172, 2 Pinney (Wis.) 490; Reg. v. Perkins, 9 Car. & P. 395, 2 Moody, C. C. 135. 2 ilattox V. United States, 146 U. S. 140, 36 L. ed. 917, 13 Sup. Ct. Eep. 50; Faire v. State, 58 Ala. 74; Allen v. State, 70 Ark. 337, 68 S. W. 28; People v. Ramirez, 73 Cal. 403, 15 Pac. 33; State v. Smith, 49 Conn. 376; Nesbit v. State, 43 Ga. 238; Scott v. People, 63 111. 508; State V. Gillick, 7 Iowa, 287; Starr v. Com. 97 Ky. 193, 30 S. W. 397; Com. v. Brewer, 164 Mass. 577, 42 N. E. 92; People v. Simpson, 48 Mich. 474, 12 N. W. 662; Lambeth v. State, 23 Miss. 322; State V. Crabtree, 111 Mo. 136, 20 S. W. 7; Binfield v. State, 15 Neb. 484, 19 N. W. 607 ; People v. Sweeney, 41 Hun, 332 ; State v. Poll, 8 N. C. (1 Hawk) 442, 9 Am. Dee. 655; Robbins v. State, 8 Ohio St. 131; State V. Shaffer, 23 Or. 555, 32 Pac. 545; Kane v. Com. 109 Pa. 541; State V. Sullivan, 20 E. I. 114, 37 Atl. 673; State v. Nance, 25 S. C. 168; King v. State, 91 Tenn. 617, 20 S. W. 169; O'Boyle v. Com. 100 Va. 785, 40 S. E. 121; State v. Cameron, 2 Chand. (Wis.) 172, 2 Pin- ney (Wis.) 490; Reg. v. Smith, 10 Cox, C. C. 82, Leigh & C. C. C. 607, 34 L. J. Mag. Cas. N. S. 153, 11 Jur. N. S. 695, 12 L. T. N. S. 609, 13 Week. Eep. 816. 3 Curtis V. State, 14 Lea, 502; Westbrook v. People, 126 111. 81, 18 N. E. 304; Maine v. People, 9 Hun, 113; Hussey v. State, 87 Ala. 121, 6 So. 420; Simons v. People, 150 111. 66, 36 N. E. 1019; Watson v. Com. 16 B. Mon. 15; State v. Spencer, 30 La. Ann. 362; Eeg. v. Os- man, 15 Cox, C. C. 1, 31 Moak, Eng. Eep. 739; North v. People, 139 111. 81, 28 N. E. 966; Lambeth v. State, 23 Miss. 322; State v. Fur- ney, 41 Kan. 115, 13 Am. St. Eep. 262, 21 Pac. 213, 8 Am. Crim. Eep. 131; State v. Quick, 15 Eich. L. 342; Sullivan v. Com. 93 Pa. 284, affirming 13 Phila. 410; State v. Wilson, 121 Mo. 434, 26 S. W. 357; State v. Jaggers, 58 S. C. 41, 36 S. E. 434, 12 Am. Crim. Eep. 228 ; Smith v. State, 9 Humph. 9 ; Eex v. Van Butchell, 3 Car. & P. 629. But it is not necessary that apprehensions of immediate death by one in articulo mortis should be embodied in language by the dying per- son to a bystander, it being sufficient if the danger was so imminent and immediate as to satisfy the judge that the deceased must of necessity have been laboring under an impression of almost im- mediate dissolution. Smith v. State, 9 Humph. 9; Stewart v. State, 2 Lea, 598. DYING DECLAliATIONS. 445 4 Rex V. Woodstock, 1 Leacli, C. C. 500, ] East, P. C. 354 ; Evans v. State, 58 Ark. 47, 22 S. W. 1020; State v. Sullivan, 20 R. I. 114, 37 Atl. 673; Krebs v. State, 3 Tex. App. 348; State v. Kasli, 7 Iowa, 347; State v. Newhouse, 39 La. Ann. 802, 2 So. 799; Com. v. Stoops, Ad- dison (Pa.) 38]. 6 Carver v. United States, 100 U. S. 553, 40 L. ed. 532, 16 Sup. Ct. Rep. 388; Johnson v. State, 17 Ala. 618; Evans v. State, 58 ArU. 47, 22 S. W. 1026; People v. Gray, 63 Cal. 164, 44 Am. Rep. 549; Green v. State, 43 Fla. 552, 30 So. 798; Tliompson v. State, 24 Ga. 297; West- brook V. People, 126 111. 81, 18 N. E. 304; Archibald v. State, 122 Ind. 122, 23 N. E. 758; State v. Gillick, 7 Iowa, 298; State v. Furney, 41 Kan. 115, 13 Am. St. Rep. 262, 21 Pae. 213, 8 Am. Grim. Rep. 131; Peoples v. Com. 87 Ky. 487, 9 S. W. 509, 810; Com. v. Roberts, 108 Mass. 296; Bell v. State, 72 Miss. 507, 17 So. 232, 10 Am. Grim. Rep. 276; State v. Mathes, 90 Mo. 571, 2 S. W. 800; Kastner v. State, 58 Neb. 767, 79 N. W. 713; Maine v. People, 9 Hun, 113; People V. Chase, 79 Hun, 296, 29 N. Y. Supp. 376; Robbins v. State, 8 Ohio St. 131; State v. Quick, 15 Rich. L. 342; Benavides v. State, 31 Tex. 579; Reg. v. Peel, 2 Fost. & F. 21. In Worthington v. State, 92 Md. 222, 56 L.R.A. 353, 84 Am. St. Rep. 506, 48 Atl. 355, dying declarations of a, woman whom defendant was charged with killing by means of an abortion were held admis- sible, where they were accompanied by constant affirmation of ex- pectancy of death, and begging the doctor to save her, as she was dying, although he held out hope of recovery. «Ex parte Fatheree, 34 Tex. Grim. Rep. 594, 31 S. W. 403; Owens v. Com. 22 Ky. L. Rep. 514, 58 S. W. 422, 14 Am. Crim. Rep. 26; People V. Olmstead, 30 Mich. 431, 1 Am. Crim. Rep. 301. But such declarations are not rendered inadmissible by the fact that de- clarant was, at the time, partially under the influence of opiates, and had to be aroused from time to time to continue his statement, the statement being intelligent, continuous, and logical, and not made in answer to questions calculated to induce it. Taylor v. State 38 Tex. Crim. Rep. 552, 43 S. W. 1019. And the court will not presume that a deceased person whose statements are ofifered in evidence as dying declarations had become insane, in the absence of any evidence of that fact, where the evidence goes no further than to show that the deceased, at the time of making such declarations, had considerable fever and had taken an opiate, but it does not appear that either had afl'ected his mind. State v. Garrand, 5 Or. 216. And in State v. Reed, 137 Mo. 125, 38 S. W. 574, the court said that they were unwilling to say that before dying declarations could be received in evidence it must be shown as a condition precedent that the declarant was in the possession of his mental faculties at the time he made them, although, should it appear from the evidence 446 BEIEff ON PACTS. that at the time the declarations were made the declarant was not in the possession of his mental faculties, a different rule would pre- vail. 7 Jordan v. State, 81 Ala. 20, 1 So. 577, 82 Ala. 1, 2 So. 460; Shell v. State, 88 Ala. 14, 7 So. 40; Clemmons v. State, 43 Fla. 200, 30 So. 699; Barnett v. People, 54 111. 325; Terrell v. Com. 13 Bush, 246; Dillard v. State, 58 Miss. 368; Hunnieutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330. SKrebs v. State, 3 Tex. App. 348; Mattox v. United States, 146 U. S. 140, 36 L. ed. 917, 13 Sup. Ct. Rep. 50; People v. Samario, 84 Cal. 484, 24 Pac. 283; Scott v. People, 63 111. 508; State v. Murdy, 81 Iowa, 603, 47 N. W. 867; State v. Young, 104 Iowa, 730, 74 N. W. 693; State v. Sullivan, 20 R. I. 114, 37 Atl. 673; State v. Nocton, 121 Mo. 537, 26 S. W. 551; Donnelly v. State, 26 N. J. L. 463; Kil- patrick v. Com. 31 Pa. 198. 9 Clark V. State, 105 Ala. 91, 17 So. 37; People v. Taylor, 59 Cal. 640; Lester v. State, 37 Fla. 382, 20 So. 232; Campbell v. State, 11 Ga. 355; Com. v. Matthews, 89 Ky. 287, 12 S. W. 333; State v. Wilson, 23 La. Ann. 558; People v. Simpson, 48 Mich. 474, 12 N. W. 662; Rakes v. People, 2 Neb. 157; Com. v. Birriolo, 197 Pa. 371, 47 Atl: 355; State V. Bradley, 34 S. C. 136, 13 S. E. 315; Nelson v. State, 7 Humph. 542; Burrell v. State, 18 Tex. 713. 10 Carver v. United States, 164 U. S. 694, 41 L. ed. 602, 17 Sup. Ct. Rep. 228; United States v. Taylor, 4 Cranch, C. C. 338, Fed. Cas. No. 16,436; Hammil v. State, 90 Ala. 577, 8 So. 380; People v. Lee, 17 Cal. 76; State v. Swift, 57 Conn. 496, 18 Atl. 664; State v. Nash, 7 Iowa, 347. 11 Reg. V. Thomas, 1 Cox, C. C. 52; People v. Gray, 61 Cal. 164, 44 Am. Rep. 549; State v. Nash, 7 Iowa, 347; State v. Trivas, 32 La. Ann. 1086, 36 Am. Rep. 293; Curtis v. State, 14 Lea, 502; Temple v. State, 15 Tex. App. 304, 49 Am. Rep. 200. WHagenow v. People, 188 111. 545, 59 N. E. 242; State v. Leeper, 70 Iowa, 748, 30 N. W. 501; State v. Somnier, 33 La. Ann. 237; People v. Lonsdale, 122 Mich. 388, 81 N. W. 277, 12 Am. Crim. Rep. 256; Oliver v. State, 17 Ala. 587; People v. Lem Deo, 132 Cal. 199, 64 Pac. 265; State v. Draper, 65 Mo. 335, 27 Am. Rep. 287; Brotherton v. People, 75 N. Y. 159, 3 Am. Crim. Rep. 218, affirming 14 Hun, 486. For other authorities as to how sense of impending death is to be evi- denced, see note in 56 L.R.A. 406, and note in 30 L.R.A.(N.S.) 391. h. Belief in after-accountability. — As to whetlier a belief by the declarant in God, in future accountability, and a future state of reward and punishment, is essential to the admission of his statements otherwise admissible, is a question in regard to which the decisions appear to be divided, some holding that DYING DECLAEATIONS. 447 the lack of such belief is suiScient to exclude them altogether, while others hold that, notwithstanding the want of it, the dec- laration is admissible, and that the absence of such belief goes to the credibility or weight of the evidence.^ There seems to be an agreement, however, that the same rule applies as would admit or exclude the testimony of a living witness. In some jurisdiction it is provided by statute that a witness is not I'endered incompetent by reason of his religious belief or the want of it, and in such undovibtedly the fact would only go to the weight of the declaration. 1 Donnelly v. State, 26 N. J. L. 463, affirmed in 26 N. J. L. 601; Goodall V. State, 1 Or. 333, 80 Am. Dec. 396; Brown v. State, 78 Miss. 637, 84 Am. St. Eep. 641, 29 So. 519; Lambeth v. State, 23 Miss. 322. estate V. Elliott, 45 Iowa, 486, 2 Am. Crim. Rep. 322; Nesbit v. State, 43 Ga. 238. 6. Time elapsing between declaration and death. While the time elapsing between the declaration and death is an element to be considered, the general rule, almost unani- mously followed by the decisions, is that it is the impression of almost immediate dissolution, and not the rapid succession of death in point of fact, that renders the testimony admissible.^ iGreenl. Ev. § 158; State v. Eeed, 53 Kan. 767, 42 Am. St. Rep. 322, 37 Pac. 174; People v. Weaver, 108 Mich. 649, 66 N. W. 567; Rakes V. People, 2 Neb. 157; People v. Simpson, 48 Mich. 474, 12 N. W. 662; Fitzgerald v. State, 11 Neb. 577, 10 N. W. 495; State v. Sadler, 51 La. Ann. 1397, 26 So. 390; Reynolds v. State, 68 Ala. 502, 4 Am. Crim. Rep. 153; State v. Nash, 7 Iowa, 347; Com. v. Birriolo, 397 Pa. 371, 47 Atl. 355; State v. Nocton, 121 Mo. 537, 26 S. W. 551; People V. Chase, 79 Hun, 296, 29 N. Y. Supp. 376 ; Jones v. State, 71 Ind. 66; State v. Banister, 35 S. C. 290, 14 S. E. 678; Com. v. Haney, 127 Mass. 455; Rex v. Mosley, 1 Moody, C. C. 97, 1 Lewin, C. C. 79; Baxter v. State, 15 Lea, 657. 7. Form and completeness of declaration; oral or written. The weight of authority seems to be in favor of the doctrine that where the dying declaration has been reduced to writing, and the writing signed by, or affirmed by, the declarant after its contents have been fully made known to him, the writing is the best evidence of what the declaration was, and that parol 448 BRIEF ON FACTS. or secondary evidence is not admissible until the nonproduction ■of the writing is accounted for/ and it is generally considered that when the writing is not produced, and its absence is proper- ly accounted for and oral testimony admitted in its stead, it is not proof of the contents of the writing that is admissible, but proof of what deceased said. What must be given in evidencing dying declarations is the substance of what the declarant said, and it is not absolutely necessary to give his exact words.^ I^either is it absolutely es- sential that the communication of the deceased should be in words, a communication by signs being admissible.^ And the fact that the statement of a dying person is drawn from him by questions, and even leading questions, is no objection to its admission as a dying declaration.* IKrebs v. State, 8 Tex. App. 1; Trowter's Case, 12 Vin. Abr. 119; Rex V. Gay, 7 Car. & P. 230; Boulden v. State, 102 Ala. 78, 15 So. 341; Hines v. Com. 90 Ky. 64, 13 S. W. 445; Collier v. State, 20 Ark. 36; Drake v. State, 25 Tex. App. 293, 7 S. W. 868; Dunn v. People, 172 111. 582, 50 N. B. 137, 11 Am. Crim. Rep. 447; Turner v. State, 89 Tenn. 547, 15 S. W. 838. SKrebs v. State, 8 Tex. App. 1; Roberts v. State, 5 Tex. App. 141; Mont- gomery V. State, 11 Ohio, 424; Ward v. State, 8 Blackf. 101. ■3Com. V. Casey, 11 Cush, 417, 59 Am. Dec. 150; Warren v. State, 9 Tex. App. 619, 35 Am. Rep. 745; Jones v. State, 71 Ind. 66; State v. Morrison, 64 Kan. 669, 68 Pac. 48, 13 Am. Crim. Rep. 347; McHugh V. State, 31 Ala. 317. 4 Rex V. Fagent, 7 Car. & P. 238 ; Reg. v. Smith, 10 Cox, 0. C. 82, Leigh & C. C. C. 607, 34 L. J. Mag. Cas. N. S. 153, 11 Jur. N. S. 695, 12 L. T. N. S. 609, 13 Week. Rep. 816; Com. v. Haney, 127 Mass. 455; Richard v. State, 42 Fla. 528, 29 So. 413; State v. Trivas, 32 La. Ann. 1086, 36 Am. Rep. 293; Maine v. People, 9 Hun, 113; Vass v. Com. 3 Leigh, 786, 24 Am. Dec. 695; Anderson v. State, 79 Ala. 5. '8. When there is other evidence of the same facts. While the original and true reason for excepting dying dec- larations from the rule prohibiting hearsay evidence was un- doubtedly necessity, it was not the necessity of any individual ■case, but the general necessity, in cases of homicide, of admit- ting what in many, if not most, cases of that nature was the best and only obtainable evidence of the circumstances of the ~death of the person killed, and therefore, when the objection has DYING DECLAEATIONS. 449 been raised that in a particular case the dying declarations should not be admitted because in that case it was unnecessary, there being other evidence on the same subject or to the same effect as that contained in the declaration, the courts have al- most uniformly decided that the necessity or lack of it in the individual cases was not to be taken into consideration, but that the declaration, being in all other essentials admissible, Avould not be rejected for the reason that there was other evi- dence of the same character.* 1 State V. Saunders, 14 Or. 300, 12 Pac. 441; Parka v. State, 105 Ga. 242, 31 S. E. 580; Com. v. Roddy, 184 Pa. 274, 39 Atl. 211; State v. Yee Wee, 7 Idaho, 188, 61 Pac. 588; Luker v. Com. 9 Ky. L. Rep. 385, 5 S. W. 354; Reynolds v. State, 68 Ala. 502, 4 Am. Crim. Rep. 153; State v. Wilson, 24 Kan. 189, 36 Am. Rep. 257; Payne v. State, 61 Miss. 161, 4 Am. Grim. Rep. 355; Darby v. State, 79 Ga. 63, 3 S. E. 663; People v. Knickerbocker, 1 Park. Crim. Rep. 302; People V. Beverly, 108 Mich. 509, 66 N. W. 379. 9. Questions for court or jury. It is generally conceded that the preliminary question as to whether the party offering in evidence the statements of de- ceased in a trial for homicide has laid a proper foundation for their admission is, primarily, for the court, and in England and nearly all of the states it is held that the decision of the court on this subject is final and conclusive, and that with it the jury have nothing to do.* A different rule, however, pre- vails in Georgia, where it is held that, while the question is primarily one for the court, yet, after the evidence has been ad- mitted, it is not only the right, but the duty, of the jury to find whether a proper foundation has been laid.^ It would seem, also, that the same rule that obtains in Georgia prevails in Massachusetts,' California,* Iowa,* and Oregon.' 1 Rex V. Hucks, 1 Starkie, 523, 1 Leach, C. L. 503, note ; Rex v. Van Butchell, 3 Car. & P. 629; Reg. v. Smith, 10 Cox, C. C. 82, Leigh & C. C. C. 607, 34 L. J. Mag. Cas. N. S. 153, 11 Jur. N. S. 695, 12 L. T. N. S. 609, 13 Week. Rep. 816; Rex. v. John, 1 East, P. C. 357; Lambeth v. State, 23 Miss. 322; State v. Burns, 33 Mo. 483; Justice V. State, 99 Ala. 180, 13 So. 658; Roten v. State, 31 Fla. 514, 12 So. 910; Smith v. State, 9 Humph. 9; State v. Center, 35 Vt. 378; People V. Kraft, 148 N. Y. 631, 43 N. E. 80, affirming 01 Hun, 474, Abb. Facts — 29. 450 BEIEF ON FACTS. 36 N. Y. Supp. 1034; Donnelly v. State, 26 N. J. L. 463; State v. Bennett, 14 La. Ann. 661. 2 Campbell v. State, 11 Ga. 355; Dumas v. State, 62 Ga. 58; Mitchell v.. State, 71 Ga. 128; Varnedoe v. State, 75 Ga. 181, 58 Am. Rep. 465. 3 Com. V. Brewer, 164 Mass. 577, 42 N. E. 92. 4 People V. Thomson, 145 Cal. 717, 79 Pac. 435. 5 State V. Phillips, 118 Iowa, 660, 92 N. W. 876. estate V. Doris, 51 Or. 136, 16 L.R.A.(N.S.) 660, 94 Pac. 44. 10. Right to impeach or contradict and to sustain declarant. While there is some conflict of authority as to the right of accused to contradict and impeach dying declarations intro- duced in evidence against him, a few cases holding that such contradictory statements, to be admissible, must have been made when deceased was in extremis, while others hold that they cannot be admitted under any circumstances, by far the greater number of cases hold that proof of statements made by the declarant which tend to contradict, qualify, or in any man- ner impeach his dying declaration, may be admitted without regard to whether or not they were made in extremis, and that in such case the rule requiring a fundation by calling the iittention of the party sought to be contradicted to the matter does not apply.^ It has also been held that dying declarations may be impeached by showing that declarant was of bad repu- tation, either generally or for truth and veracity.* And where accused has given evidence tending to contradict the declarant the prosecution has the right to introduce other declarations of the declarant as rebutting testimony, although such other dec- larations were not made while declarant was in extremis.' iMorelock v. State, 90 Tenn. 528, 18 S. W. 258; Dunn v. People, 172: 111. 582, 50 N. E. 137, 11 Am. Grim. Kep. 447; Green v. State, 154 Ind. 655, 57 N. E. 637; Carver v. United States, 164 U. S. 694, 41 L. ed. 602, 17 Sup. Ct. Rep. 228; State v. Lodge, 9 Houst. (Del.) 542, 33 Atl. 312; Morrison v. State, 42 Fla. 149, 28 So. 97; Battle V. State, 74 Ga. 101; Com. v. Cooper, 5 Allen, 495, 81 Am. Dec. 762; People V. Lawrence, 21 Cal. 368; Felder v. State, 23 Tex. App. 477, 59 Am. Rep. 777, 5 S. W. 145; Nelms v. State, 13 Smedes & U. 500, 53 Am. Dec. 94; Shell v. State, 88 Ala. 14, 7 So. 40. 2 Lester v. State, 37 Fla. 382, 20 So. 232; Redd v. State, 99 Ga. 210, 25 S. E. 268. 8 State V. Blackburn, 80 N. C. 474; Bostick v. State, 3 Humph. 344; State V. Thomason, 46 N. C. (1 Jones, L.) 274. DYING DECLAEATIONS. 451 11. Weight to which entitled. The weight and credibility of dying declarations when ad- mitted in evidence is always and entirely fot the jury.* But as to the weight of dying declarations as compared with the testimony of living witnesses sworn and testifying in open court and subjected to the sifting process of cross-examination, the decisions vary, some holding that they are to be received with the same degree of credit as the testimony of the deceased would receive if examined under oath as a witness, ' while others — and these are perhaps the best considered cases — hold that such declarations are, under no circumstances, to be con- sidered on the same plane or of equal weight and value with the testimony of a sworn witness giving evidence in the pres- ence of the court and jury and subject to cross-examination.' 1 Moore v. State, 12 Ala. 764, 46 Am. Dee. 276; Campbell v. State, 38 Ark. 498; People v. Abbott, — Cal. — , 4 Pac. 769; Perry v. State, 102 Ga. 365, 30 S. E. 905; Starkey v. People, 17 111. 17; Doles v. State, 97 Ind. 555; Walaton v. Com. 16 B. Men. 15; People v. Bev- erly, 108 Mich. 509, 66 N. W. 379; Lambeth v. State, 23 Miss. 322; State V. Stephens, 96 Mo. 637, 10 S. W. 172; Donijelly v. State, 26 N. J. L. 463; People v. Green, 1 Park. Crlm. Rep. 11; Com. v. Lenox, 3 Brewst. (Pa.) 249; State v. Sullivan, 20 E. L 114, 37 Atl. 673; State V. Quick, 15 Rich. L. 342. 8 Hill V. State, 41 Ga. 484; Green v. State, 13 Mo. 382; State v. Schmidt, 73 Iowa, 469, 35 N. W. 590; State v. Whitson, 111 N. C. 695, 16 S. E. 332; Baxter v. State, 15 Lea, 657. SAshton's Case, 2 Lewin, C. C. 147; People v. Kraft, 148 N. Y. 631, 43 N". E. 80, affirming 91 Hun, 474, 36 N. Y. Supp. 1034; State v. Van- sant, 80 Mo. 67; State v. Eddon, 8 Wash. 292, 36 Pac. 139; Walker v. State, 37 Tex. 366. For a full review of all the authorities on the question of dying declara- tions, see elaborate note in S6 L.R.A, 353, 452 BBIEF ON FACTS. EFFECT OF INJURY OR OPERATION. 1. Testimony of person injured. 2. Expert witness. 3. Nonexpert witness. See also Caee; Cause; Opiniok. 1. Testimony of person injured. A person injured may testify to the effects of an injury or operation upon him, and what is the resulting condition,' pro- vided that, unless he be an expert, his answer states only facts of knowledge and consciousness, and not opinions, requiring professional skill to form justly.* 1 Creed v. Hartman, 8 Bosw. 123, affirmed on other points in 29 N. Y. 591; North Chicago Street R. Co. v. Gillow, 166 111. 444, 46 N. E. 1082, s. P., Reeve v. Dennett, 145 Mass. 23, 11 N. E. 938 (teeth filled without pain) ; Beckwith v. New York C. R. Co. 64 Barb. 299 (proper to ask, "Did the state of your health cause you to give up youi business?" for it calls for a fact, not an opinion). And in Alabama, G. S. R. Co. v. Frazier, 93 Ala. 45, 9 So. 303, a plaintiff, though not an expert, was held competent to testify as to the perma- nent character of the injuries for which he was suing, where the lapse of time between the injury and the trial had been such that any abnormal conditions remaining were necessarily permanent. 2 Stevens v. Rodger, 25 Hun, 54 ( holding that one, not an expert, cannot testify that the effect of a blow on his ear was to produce deafness) ; Pfau V. Alteria, 23 Misc. 693, 52 N. Y. Supp. 88 (holding that one, not an expert, cannot testify that his head will never be the same as it was). 2. Expert witness. An expert may testify to probable future effects,' but so far only as relevant to the cause of action ; * or as the question does not call for consequences too remote and speculative, or for mere conjecture.' On the other hand, he cannot be asked whether the person's condition is the direct result.* EFFECT OF INJURY OE OPERATION. *J'-> It is immaterial, however, that the question is not confined to the reasonable certainty of such effects.' 1 Goodrich v. People, 19 N. Y. 574, 577 (unwholeaomeness of meat conse- quent on disease of animal. Supreme court, 3 Park. Grim. Kep. 622, Affirmed by court of appeals without questioning this point) ; Matte- son V. New York C. K. Co. 35 N. Y. 487, 91 Am. Dec. 67 (curable- ness) ; Buel v. New York C. E,. Co. 31 N. Y. 314, 88 Am. Dec. 271; Cunningham v. New York C. & H. E. R. Co. 49 Fed. Eep. 439 ; Denver Tramway Co. v. Eeid, 4 Colo. App. 53, 35 Pac. 269; Erickson v. Barber Bros. 83 Iowa, 367, 49 N. W. 838;' Langworthy v. Green Twp. 88 Mich. 207, 50 N. W. 130; Chicago, R. I. & P. E. Co. v. Archer, 46 Neb. 907, 65 N. W. 1043; Poffenbarger v. Smith, 27 Neb. 788, 43 N. W. 1150; Alberti v. New York, L. E. & W. E. Co. 118 N. Y. 77, 6 L.E.A. 765, 23 N. E. 35 ; Ayres v. Delaware, L. & W. E. Co. 158 N. Y. 254, 53 N. E. 22; Stever v. New York C. & H. E. E. Co. 7 App Div. 392, 39 N. Y. Supp. 944; O'Flaherty v. Nassau Electric E. Co. 34 App. Div. 74, 53 N. Y. Supp. 1069; Mitchell v. Taeoma E. & Motor Co. 13 Wash. 560, 43 Pac. 528. So held although his opinion is in part based upon statements made by the injured person relating to his past or present symptoms. Consolidated Traction Co. v. Lambertson, 59 N. J. L. 297, 36 Atl. 100. Nor is the competency of the opinion affected by the fact that the ex- amination on which it is based was made long prior to the trial. Missouri P. E. Co. v. Callahan, — Tex. — , 12 S. W. 833 (two years) ; Abbot v. Dwinnell, 74 Wis. 514, 43 N. W. 496 (more than one year). That fact merely goes to its weight. Ibid. A medical expert asked the probable future course of plaintiff's disease may, in stating that in his opinion plaintiff will never recover, qualify it by adding "so far as to be capable of any persistent occupation;" and such qualification is not objectionable as being a second speculative opinion based upon the first opinion. Lehigh & H. E. E. Co. v. March- ant, 28 C. C. A. 544, 55 U. S. App. 427, 84 Fed. 870. 2 Gumming v. Brooklyn City R. Co. 21 Abb. N. C. 1, 109 N. Y. 95, 16 N. E. 65 (holding that in parent's action evidence of future probable neces- sity of expensive surgical operation is not competent, for such damages can he recovered only by the child). 8 Yaeger v. Southern California R. Co. — Cal. — , 51 Pac. 390. And for cases affirming this rule, but holding the questions not objectionable as speculative, see Stever v. New York C. & H. E. E. Co. 7 App. Div. 392, 39 N. Y. Supp. 944; Maher v. New York C. & H. E. R. Co. 20 App. Div. 161, 46 N. Y. Supp. 847. « Chicago, E. I. & P. E. Co. v. Sheldon, 6 Kan. App. 347, 51 Pac. 808. * Every expert opinion as to the future, founded upon present conditions, is, and must necessarily be. uncertain; but the fact that it is so uncertain does not prevent the opinion of an expert being given as 454 BEIEF ON FACTS. to the results. Mitchell v. Tacoma R. & Motor Co. 13 Wash. 560, 43 Pac. 528. To the same effect are Barr v. Kansas City, 121 Mo. 22, 25 S. W. 562; Curran v. A. H. Stange Co. 98 Wis. 598, 74 N. W. 377; Albert! V. New York C. & H. R. E. Co. 118 N. Y. 77, 6 L.R.A. 765, 23 N. E. 35. 3. Nonexpert witness. A witness, although not an expert, but who has had oppor- tunity to observe, may testify as to the effects of an injury, provided such opinion be founded upon his own observation of the person to whom his testimony relates, and is limited to the time when the person was under observation by the wit- ness.* 1 Shelby v. Clagett, 46 Ohio St. 549, 5 L.R.A. 606, 22 N. E. 407 ; Heddles V. Chicago &. N. W. R. Co. 77 Wis. 228, 46 N. W. 115; Van Gent v. Chicago, M. & St. P. R. Co. 80 Iowa, 526, 45 N. W. 913. In an action to recover damages for an injury to the plaintiff's hearing, a lay witness may testify to what she observed before and after the accident. Hamel v. Brooklyn Heights R. Co. 59 App. Div. 135, 69 N. Y. Supp. 166. 455 ELECTION OF BIGHT OE EEMBDY. ELECTION OE EIGHT OE EEMEDY. 1. Direct testimony. ^. Decisive act. 1. Direct testimony. When an estoppel has not been shown, nor conclusive evi- dence of election, the party who did the act or caused it to be done may be asked as to the intent with which it was done.^ 1 Sturm V. Williams, 6 Jones & S. 325, s. P., National Bank of Metropolis V. Kennedy, 17 Wall. 19, 21 L. ed. 554 (allowing witness to testify to the purpose of a transaction in which he participated ) . Si. Decisive act. Proof of any decisive act clearly manifesting the intent of the party to make a deliberate choice establishes an irrevocable -election.^ But the party invoking this rule must show that the act was done with knowledge of the facts giving the right of •election.^ -IFire Asso. of Philadelphia v. Rosenthal, ]08 Pa. 474, I Atl. 303, 304, and cases cited in Re Soule, 22 Abb. N. C. 269. See also cases in notes to Grossman v. Universal Rubber Co. (N. Y.) 13 L.R.A. 91; Mills v. Parkhurst (N. Y.) 13 L.R.A. 472, and Terry v. Hunger (N. Y.) 8 L.R.A. 216. The limits of the rule are strongly put in Becker v. Walworth, 45 Ohio St. 169, 12 N. E. 1. Whether this conclusive effect rests upon equitable estoppel, see: Affirmative: Equitable Co-operative Foundry Co. v. Hersee, 33 Hun, 169, affirmed in 103 N. Y. 25, 9 N. E. 487, without passing on this ques- tion. Negative: Terry v. Munger, 49 Hun, 560, 2 N. Y. Supp. 348. As to estoppel by election, see note to Re Soule, 22 Abb. N. C. 268. As to the doctrine of election as applied to wills, see cases cited in notes to Callaham v. Robinson (S. C.) 3 L.R.A. 497; McQuerry v. Gilliland (Ky.) 7 L.R.A. 454; Welch v. Adams (Mass.) 9 L.R.A. 250; Re Vance (Pa.) 12 L.R.A. 227, and Schley v. Collis (C. C. S. D. Ga.) 13 L.R.A. 567. _As to who may elect against the will on behalf of insane widow, see cases cited in note to Jones v. Knappen (Vt. ) 14 L.R.A. 293. 456 BEIEF OH" FACTS. 2 Equitable Co-operative Foundry Co. v. Hersee, 103 N. Y. 25, 9 N. E. 487. s. p., Acquiescence. And see Katification. EMBEZZLEMENT. 1. Circumstantial evidence. 2. Evidence of other crimes. See more fully on this question, Criminal Trial Brief. 1. Circumstantial evidence. Circumstantial evidence, though short of showing the actual appropriation of specific money, is competent, and may be sufficient to show embezzlement.^ 1 Hackett v. King, 8 Allen, 144, 85 Am. Dec. 695 ; Boston & W. E. Corp. V. Dana, 1 Gray, 83; New York & B. Ferry Co. v. Moore, 102 N. Y. 667, o. i;. with note, 18 Abb. N. C. 106, reversing 32 Hun, 29 (misap- propriation of ferry tolls through a long period shown by unexplained acquisition of money during that time). 2. Evidence of other crimes. In trials for embezzlement, evidence of other acts of a similar character is competent for the purpose of showing a guilty intent, or the existence of a common scheme, plan, or system.^ 1 United States v. Eussell, 19 Fed. 591; United States v. Snyder, 4 Me- Crary, 618, 14 Fed. 554; People v. Gray, 66 Cal. 271, 5 Pac. 240; People V. Bidleman, 104 Cal. 608, 38 Pac. 502; People v. Neyce, 86 Cal. 393, 24 Pac. 1091; Reeves v. State, 95 Ala. 31, 11 So, 158; Thal- heim v. State, 38 Fla. 169, 20 So. 938; Jackson v. State, 76 Ga. 551; Com. V. Tuckennan, 10 Gray, 173; People v. Hawkins, 106 Mich. 479, 64 N. W. 736; Gallardo v. State, — Tex. Crim. Rep. — , 40 S. W. 974; Goodwyn v. State, — Tex. Crim. Rep. — , 64 S. W. 251; People V. Lyon, 1 N. Y. Crim. Rep. 400; Reg. v. Richardson, 2 Fost. & F. 343, 8 Cox, C. C. 448. For an elaborate note on the general question of evidence of other crimes in criminal cases see 62 L.R.A. 193. EMPLOYMENT. EMPLOYMENT. 1. Appearance of being in service. 2. Presumption of employment. a. From control of property. b. From services rendered. c. Of continuance of relation. For cognate topics, see Ability; Age; Agenot; Chabactee; Dutt. 1. Appearance of being in service. Evidence that a person was actually engaged in performing labors such as were a part of the ordinary business of an em- ployer is sufficient to go to the jury as evidence that he was acting as a servant of the latter.^ Eor this purpose it is not necessary to identify the person.* 1 Svenson v. Atlantic Mail S. S. Co. 57 N. Y. 108 (man engaged in unload- ing defendant's steamer) ; McCoun v. New York C. & H. R. R. Co. 66 Barb. 338 (man alleged to be defendant's agent was on its engine with his coat off, apparently engaged in work there) ; Hughes v. New York & N. H. R. Co. 4 Jones & S. 222 (man in charge of defendant's freight car wearing a brakeman's cap and jacket) ; Lampkins v. Vicks- burg, S. & P. R. Co. 42 La. Ann. 997, 8 So. 530 (man alleged to be defendant's conductor wore a cap and had a lantern and conductor's clippers) ; Martin v. Richards, 155 Mass. 381, 29 N. E. 591. See other cases under Agency, §§ 8, 9. ]?ut the testimony that a person receiving baggage, witness ''supposed to be the baggage master" of defendant, is not enough. Butler v. Hudson River R. Co. 3 E. D. Smith, 571. 2 Wagner v. New York, L. E. & W. E. Co. 20 N. Y. Week. Dig. 277 (flag- man) . 2. Presumption of employment. a. From control of property. — Evidence that a person was in charge of property of another, apparently performing usual duties of an employee or servant, raises a presumption in favor of third persons that he stood in that relation.^ iNorris v. Kohler, 41 N. Y. 42, reversing 1 Sweeney, 39 (runaway team) ; Doherty v. Ford, 8 Misc. 227, 28 N. Y. Supp. 720. A person wearing on his hat a plate with the words "Electrical vehicle," with a number, and operating one of defendant's cabs at a cabstand. 458 BRIEF ON" FACTS. is presumed to have been in defendant's employ. Curley v. Electric Vehicle Co. 68 App. Div. 18, 74 N. Y. Supp. 35. A person who operates the machinery of a carrier, without any explanation of the circumstances, is presumed to be the carrier's servant. Wilson V. Ale.\ander, 315 Tenn. 125, 88 S. W. 935. h. From services rendered. — Whenever services are rendered by one person for another, which are accepted, a contract of employment will be presumed,* unless the parties are near rela- tives or members of the same family in which case no such pre- sumption exists.^ 1 Kerr v. Cusenbary, 60 Mo. App. 558 ; Hay v. Peterson, 6 Wyo. 419, 34 L.R.A. 581, 45 Pae. 1073; 2 Parsons, Contracts, p. 46. ^Davies v. Davies, 9 Car. & P. 87; Saunders v. Saunders, 90 Me. 284, 38 Atl. 172; Enger v. Lofland, 100 Iowa, 303, 69 N. W. 526; Livingston V. Hammond, 162 Mass. 375, 38 N. E. 968; Andrus v. Foster, 17 Vt. 556; Williams v. Hutchinson, 3 N. Y. 312, 53 Am. Dec. 301; Houck V. Houck, 99 Pa. 552; Reeves v. Moore, 4 Ind. App. 492, 31 N. E. 44; Heffron v. Brown, 155 111. 322, 40 N. E. 583; Ex parte Aycock, 34 S. C. 257, 13 S. E. 450; Hodge v. Hodge, 47 Wash. 196, 11 L.R.A. (N.S.) 763, 91 Pac. 764; Addison, Contr. 14th ed. p. 849, and cases cited in 2 Wharton, Ev. §§ 1226-1237; Best, Ev. §§ 303-326. And this implication from relationship avails in favor of creditors of the recipient of the services. Thus, it has been held in several cases that a conveyance of property in consideration of services rendered by a person who is a, relative of the recipient or a member of his family is invalid as against the creditors of such recipient, unless the services were performed in pursuance of an antecedent contract. Zerbe v. Miller, 16 Pa. 488; Hack v. Stewart, 8 Pa. 213; Stoneburner v. Motley, 95 Va. 784, 30 S. E. 364; Beale v. Hall, 97 Va. 383, 34 S. E. 53. Even where the person who rendered, and the person who received, the services, were not related by either blood or marriage, the implica- tion of a promise to pay compensation will, as a general rule, be nega- tived if it appears that at the time when the services were rendered there existed between them a domestic relationship the incidents of which were essentially similar to those which are ordinarily asso- ciated with such a relationship when it exists between kinsfolk. Gra- ham v. Stanton, 177 Mass. 321, 58 N. E. 1023; Wyley v. Bull. 41 Kan. 206, 20 Pac. 855; Cousty's Estate, 12 Phila. 98; Walker v. Taylor, 28 Colo. 233, 64 Pac. 192; Deppen v. Personette, 93 111. App. 513; Smith v. Johnson, 45 Iowa, 308; Sword v. Keith, 31 Mich. 247; Schrimpf v. Settegast, 36 Tex. 296; Hogg v. Laster, 56 Ark. 382, 19 S. W. 975; Lunay v. Vantyne, 40 Vt. 501. EMPLOYMENT. 459 The presumption, however, is strong or weak in proportion to the nearness of the relationship. Quigly v. Harold, 22 111. App. 269; Hill v. Hill, ]2l'lnd. 255, 23 N. E. 87; Shane v. Smith, 37 Kan. 55, 14 Pac. 477; Smith V. Myers, 19 Mo. 433; Thornton v. Grange, 66 Barb. 507; Gorrell v. Taylor, 107 Tenn. 568, 64' S. W. 888; Kessler's Estate, 87 Wis. 660, 41 Am. St. Rep. 74, 59 N. W. 129. As between parent and child it is strong, because of the moral and legal obligations imposed upon them in reference to each other; but as to other relatives it grows weaker as the parent tree is receded from, anil each degree of retrogression therefrom lessens its force, until that point in relationship is reached where all moral and legal obligations are assimilated, and stand upon the same basis as to the rest of society. Phillips v. Sanchez, 35 Fla. 187, 17 So. 363. Thus, the rule does not apply to services rendered by one to his wife's aunt'i husband who lived in another town. Clark v. Cordry, 69 Mo. App. 0. In some jurisdictions it is held that the presumption of gratuitousness in case of services performed by a relative or member of the household can be overcome only by proof of an express agreement that the serv- ices should be remunerated. Borum v. Bell, 132 Ala. 86, 31 So. 454; Walker v. Taylor, 28 Colo. 233, 64 Pac. 192; Wright v. Senn, 85 Mich. 191, 48 N. W. 545; Hinkle v. Sage, 67 Ohio St. 256, 65 N. E. 999; Perkins v. HasBrouck, 155 Pa. 494, 26 Atl. 695; Leidig v. Coover, 47 Pa. 534; Wall's Appeal, 111 Pa. 460, 56 Am. Rep. 288, 5 Atl. 220; Murphy v. Murphy, 1 S. D. 316, 9 L.R.A. 820, 47 N. W. 142; Andrus v. Foster, 17 Vt. 556; Lunay v. Vantyne, 40 Vt. 501 (But see Putnam v. Town, 34 Vt. 429 ; Sawyer v. Hebard, 58 Vt. 375, 3 Atl. 529 ) ; Pellage v. Pellage, 32 Wis. 136; Ellis v. Gary, 74 Wis. 176, 4 L.R.A. 55, 17 Am. St. Rep. 125, 42 N. W. 252. But the doctrine adopted by the majority of the American courts is that the presumption of gratuitousness may be overcome by proving the existence of either an express or an implied agreement to pay com- pensation. Heffron v. Brown. 155 111. 322, 40 N. E. 583; Cowell v. Roberts, 79 Mo. 218; Wessinger v. Roberts, 67 S. C. 240, 45 S. E. 169; Cowan v. Musgrave, 73 Iowa, 384, 35 N. W. 496; Stansbury v. Stansbury, 20 W. Va. 23; Lockwood v. Robbins, 125 Ind. 398, 25 N. E. 455; Turner v. Turner, 18 Ky. L. Rep. 822, 38 S. W. 506; Bixler v. Sellman, 77 Md. 494, 27 Atl. 137; Davis v. Gallagher, 55 Hun, 593, 9 N. Y. Supp. 11; Green v. Roberts, 47 Barb. 521; Hogg v. Laster, 56 Ark. 382, 19 S. W. 975; Mills v. Joiner, 20 Fla. 479; Saunders v. Saunders, 90 Me. 284, 38 Atl. 172; Seavey v. Seavey, 37 N. H. 125; Hudson V. Lutz, 50 N. C. (5 Jones, L.) 217; Murrell v. Studstill, 104 Ga. 604, 30 S. E. 750; Donahue v. Donahue, 53 Minn. 460, 55 N. W. 602. For a full review of the authorities on this question, see note in 11 L.R.A. (N.S.) 873. 460 BRIEF ON FACTS. c. Of continuance of relation. — The relation of employer and employee having been once established under a contract admitted to have been entered into, and the term of employ- ment not appearing to have expired by limitation, the relation must be presumed to continue until the contrary appears.'' And when one serves another under a contract for a year's service, and holds over, continuing in the service after the expiration of the year, there is a presumption that the contract of service continues through another year.^ iBerg V. Carroll, 30 N. Y. S. R. 675, 9 N. Y. Supp. 509; Mendelson v. Bromier, 124 App. Div. 396, 108 N. Y. Supp. 807; Appleton Water- works Co. V. Appleton, 132 Wis. 563, 113 N. W. 44. And in St. Kevin Min. Co. V. Isaacs, 18 Colo. 400, 32 Pac. 822, proof of a continuous em- ployment for upwards of two years was held to impose upon defend- ant the burden of showing a termination of such employment. See also Lyman v. Schwartz, 13 Colo. App. 318, 57 Pac. 735, holding that the burden of showing termination of a contract of employment for an indefinite time by another and different one is upon defendant in an action upon such contract. The presumption of the continuance of an agency arises from proof of a prior appointment as an agent without anything to show its revo- cation. Hall V. tJnion Cent. L. Ins. Co. 23 Wash. 610, 51 L.R.A. 288, 83 Am. St. Rep. 844, 63 Pac. 505. 2 Kellogg V. Citizens' Ins. Co. 94 Wis. 554, 69 N. W. 362, and cases cited; Dickinson v. Norwegian Plow Co. 101 Wis. 157, 76 N. W. 1108; Mears V. O'Donoghue, 58 111. App. 345 (holding, however, that in this case the presumption was overcome by sufficient evidence). But Mason v. Secor, 76 Hun, 178, 27 N. Y. Supp. 570, holds that the continuance of one who has been in the service of his employer for several years at a fixed salary, in the same employment after the formation of a part- nership between his employer and others, raises no presumption that he continues in the service of the partnership on the same terms. If an employee continues in service after the expiration of a. contract for ten months, there is no presumption that the contract has been re- newed for a year. Caldwell v. Caldwell Co. 88 N. Y. Supp. 970. An indefinite continuation of service under a five-year contract was held to be a. renewal from year to year, and not for another term of five years. Brightson v. H. B. Claflin Co. 84 App. Div. 557, 82 N. Y. Supp. 667. ESTOPPEL. 461 ESTOPPEL. 1. Burden of proof. 2. Equitable estoppel. 3. Silence. 4. Estoppel by admission in action. 5. By taking position before the court. 6. By forbearing to sue. For cognate topics, see Acquiescence; Agency; Consent; Election of Remedies ; Ratification. 1. Burden of proof. The burden of establishing an estoppel is upon him who invokes it.^ 1 Sawyer v. Nelson, 160 111. 629, 43 N. E. 728; Hill v. Meinliard, 39 Fla. Ill, 21 So. 805; Gage v. Nichols, 135 111. 128, 25 N. E. 672; Stevens V. King, 16 App. Div. 377, 44 N. Y. Supp. 893; Draper v. Medlock, 122 Ga. 234, 69 L.R.A. 483, 50 S. E. 113, 2 Ann. Gas. 650; Lewis v. Apperson, 103 Va. 624, 68 L.R.A. 867, 106 Am. St. Rep. 903, 49 S. E. 978; Beaufort County Lumber Co. v. Price, 144 N. C. 50, 56 S. E. 684. And when relied upon it must be clearly and satisfactorily proved. Ball V. Riggs, 19 Ky. L. Rep. 829, 42 S. W. 97. 2. Equitable estoppel. To establish an equitable estoppel ^ it is not necessary to show design to mislead ; ^ nor, in case of design, is it necessary to show design to mislead the particular person.' But it must appear that the party claiming the estoppel was influenced * by the act or omission, and would be prejudiced by holding the other not estopped.' 1 For cases defining equitable estoppel, and applying the doctrine, see notes to Stevens v. Ludlum (Minn.) 13 L.R.A. 270, and Brookhaven V. Smith (N. Y.) 7 L.R.A. 755. 2 Blair v. Wait, 69 N. Y. 113, 116. 3 No privity is needed other than that which flows from the wrongful act and consequent injury. Bank of Batavia v. New York, L. E. & W. R. Co. 106 N. Y. 195, 200, 60 Am. Rep. 440, 12 N. E. 433. See also Anglo- American Sav. & L. Asso. v. Campbell, 13 App. D. C. 581, 43 L.R.A. 022. 4 It is enough, if, in reliance, the party has been led to omit what ho otherwise would, and might effectively, have done to protect himself. Voorhis v. Olmstead, 66 N. Y. 113; Manhattan Beacli Co. v. Harned, 462 BRIElf OJf TACTS. 27 Fed. 484; Leather Mfra.' Nat. Bank v. Morgan, 117 U. S. 96, 29 L. ed. 811, 6 Sup. Ct. Rep. 697. See also cases in note to Stevens v. Ludlum (Minn.) 13 L.R.A. 271. Otherwise of declarations to the attorney of the party, not shown to have been communicated to the party, nor to have influenced the conduct of the attorney. Masten v. Olcott, 101 N. Y. 152, 4 N. E. 274. And of declarations of one who was a stranger when they were made, but afterward became agent for the party claiming the estoppel. Maguire v. Selden, 103 N. Y. 642, 8 N. E. 517. 6 It is not necessary that the representation should have been made in im- mediate connection with the act in reliance upon it. Ahern v. Good- speed, 72 N. Y. 108, 113. But the conduct in reliance must have been without such delay as to give him an intervening advantage by not relying on it meanwhile. Andrews v. ^tna L. Ins. Co. 85 N. Y. 334. Purchasers of trust bonds are presumed to rely on a trust mortgage, and a, person with whose consent certain lands had been included in a mortgage was held to be estopped from claiming the property against successors to bondholders. Stubbs v. Franklin & M. R. Co. 101 Me. 355, 64 Atl. 025. 3. Silence. To sustain an estoppel because of omission to speak, there must be both the specific opportunity and the apparent duty to speak; the party maintaining silence must have known that someone was relying thereon, and was either acting or about to act as he would not have done had the truth been told.^ 1 Viele V. Judson, 82 N. Y. 32. See also cases cited in notes to Tarking- ton V. Purvis (Ind.) 9 L.R.A. 609, and Reichert v. St. Louis & S. F. R. Co. (Ark.) 5 L.R.A. 183. 4. Estoppel by admission in action. An admission of a fact material to plaintiff's cause of action, made by defendant to plaintiff at or before the commencement of the action, on the faith of which he elected his remedy and proceeded with the action, is conclusive on defendant in the action.* 1 First Presbyterian Congregation v. Williams, 9 Wend. 148 (declaration by defendant in ejectment for nonpayment of rent, and in default of property whereon to distrain, that the property on the premises did not belong to him), s. p.. Chapman v. Searle, 3 Pick. 38 (where earlier ESTOPPEL. 463 eases are reviewed) ; Dezell v. Odell, 3 Hill, 215, 38 Am. Dec. 62& (leading case. Eeceiptor to constable, held estopped as to ownership). But a statement communicated as one of the elements in the founda- tion of the claim is not necessarily conclusive against correction if there be no surprise; although the rules of variance and surprise may prevent it being corrected first at the trial. Connecticut Mut. L. Ins. Co. V. Schwenk, 94 U. S. 593, 24 L. ed. 294. 5. By taking position before the court. One may, by taking a position before the court, be estopped, without having misled his adversary.^ 1 Note in Ke Soule, 22 Abb. N. C. 268, and cases cited on both sides of the question; Hughes v. Dundee Mortg. & Trust Invest. Co. 28 Fed. 40. (So held of one who, having carried a judgment up in error, attempts pending that proceeding, to plead the judgment in bar of a new action.) But an estoppel by taking position in a, litigation may be waived. An- drews V. ^tna L. Ins. Co. 85 N. Y. 334. As to estoppel of party who has invoked jurisdiction to deny it, after ob- taining benefit of the courts' taking jurisdiction, see note to Robert- son V. Smith (Ind.) 15 L.R.A. 273. 6. By forbearing to sue. One is not estopped from claiming a right by not bringing a suit or special proceeding, to enforce it.^ 1 Viele V. Judson, 82 N. Y. 32; Thomas, Mortg. 2d ed. 245. 464 BRIEF ON FACTS. EXCUSE. For other cognate topics, see Explanation; Pebfobmance; Waives. Must be alleged. Excuse for nonperformance is, in general, inadmissible un- der an allegation of performance.^ Otherwise of excuse for not tendering where tender is not part of the contract.* 1 Oakley v. Morton, 11 N. Y. 25, 62 Am. Dec. 49 ; Elting v. Dayton, 43 N. Y. S. R. 363, 17 N. Y. Supp. 849, affirmed without opinion, 144 N. Y. 644, 39 N. E. 493; La Chicotte v. Richmond R. & Electric Co. 15 App. Div. 380, 44 N. Y. Supp. 75, and cases cited; Lajos v. Eden Musee American Co. 10 Misc. 148, 30 N. Y. Supp. 916; Monalian v. Fitz- gerald, 62 111. App. 192; Gerald v. Tunstall, 109 Ala. 567, 20 So. 43; Scraggs V. Hill, 37 W. Va. 706, 17 S. E. 185. Compare Bogardus v. New York L. Ins. Co. 101 N. Y. 328, 4 N. E. 522 ; Smith v. Wetmore, 24 Misc. 225, 52 N. Y. Supp. 513; Murphy v. North British & Mercantile Ins. Co. 70 Mo. App. 78; Pierce City Water Co. v. Pierce City, 61 Mo. App. 471. And Standard Gaslight Co. v. Wood, 9 C. C. A. 362, 26 U. S. App. 15, 61 Fed. 74, holds that under a declaration in general assumpsit for the reasonable value of work which defendant had accepted, evidence excusing nonperformance of the agreement to complete such work by a, definite time is admissible notwithstanding an averment of performance. 2 Holmes v. Holmes, 9 N. Y. 525; Carman v. Pultz, 21 N. Y. 547. Otherwise, also, of a statutory excuse if the court may take judicial notice of it. Baxter v. Brooklyn L. Ins. Co. 44 Hun, 184. EXPLANATION. 465 EXPLAN"ATIOK 1. Explanation of denial. 2. Explanation on redirect. 3. Fact stated not thereby proved. 4. Explaining nonproduction of evidence. 5. Explaining impeaching evidence. 6. Explaining admission. For cognate topics, see Cobroboeation ; Excuse; Rebuttal. 1. Explanation of denial. On the question whether a party made a contract or repre- sentation reputed to him it is competent to show, not merely that he did not do so, hut what he actually did or said in the transaction referred to, although that be irrelevant except as an explanation or corroboration of his denial.* 1 This is a general principle, and applicable alike to the main question in issue and to matters incidentally involved. Marsh v. Dodge, 66 N. Y. 533 (under general denial of making specific contract, evidence that the contract of that date was substantially different is admissible) ; Judge V. Judge, 14 N. Y. Civ. Prov. Rep. 138 (under denial of slander defendant's version of the alleged conversation is competent, and it is error to limit the testimony to a denial of what was alleged) ; Pioneer Mfg. Co. V. Phoenix Assur. Co. 106 N. C. 28, 10 S. E. 1057; Griffin V. Carr, 21 App. Div. 51, 47 N. Y. Supp. 323 (holding evidence by one sued as a partner, that it was not his purpose to become a partner, is competent only to explain some particular transaction which is incon- sistent with his unqualified denial of any interest in the business, and not in support of such denial). 2. Explanation on redirect. A witness may be allowed on redirect, to explain a statement called out on his cross-examination, although it involves testi- mony to a declaration by the party calling him, which is not otherwise admissible.* 1 Simmons v. Havens, 101 N. Y. 427, 5 N. E. 73; Edgell v. Francis, 86 Mich. 232, 48 N. W. 1095. See fully on this question Civil Trial Brief (3d ed.) 233 et seq. Abb. Facts — 30. 466 BRIEF ON FACTS. 3. Fact stated not thereby proved. A party who avails himself of his right to prove that at the time of his act he stated his reason therefor does not, by prov- ing the statement to have been made, prove its truth, nor throw the burden of disproving its truth on the other party.^ 1 Citizens' Nat. Bank v. Importers' & Traders' Nat. Bank, 44 Hun, 386. 4. Explaining nonproduction of evidence. Where a party's good faith in refraining from testifying in Ill's own behalf, or calling as a witness a person shown to be- acquainted with the facts, is questioned, he has a right to give evidence explaining his course.* And it is not error to allow counsel, whose course in the non- production of evidence promised in his opening has been com- mented upon by adverse counsel, to explain his reasons for that course.* 1 Woodruff T. Hurson, 32 Barb. 557 ; Brown v. Barse, 10 App. Div. 444, 42' N. Y. Supp. 306. 2 Blake v. People, 73 N. Y. 586. 5. Explaining impeaching evidence. Where a foundation for the impeachment of a witness by proof of inconsistent statements or acts has been laid, he has a right to explain such statements or acts.' lAyers v. Watson, 132 U. S. 394, 33 L. ed. 378, 10 Sup. Ct. Rep. 116; Hunter v. Gibbs, 79 Wis. 70, 48 N. W. 257. See fully on this question,. Civil Trial Brief (3d ed.) 238, 240. 6. Explaining admission. A party may usually be permitted to explain words ancf phrases used in an alleged admission by him.* 1 Eddy V. Church, 64 Misc. 7, 118 N. Y. Supp. 795. FEELINGS. 46V FEELINGS. 1. Direct testimony. a. By the person affected. b. By observer. 2. Natural manifestations of present feeling. 3. Declarations describing feeling. 4. Feigning. 5. Experiment. For cognate topics, see Ability; Cabe; Cause; Chabacteb; Cohdition; Health; Intent; Malice; Opinion. 1. Direct testimony. a. By the person affected. — A person may testify to his own feelings.^ IHuggans v. Fryer, 1 Lans. 276 (fear; deeming one's self unsafe as to chattel-mortgage security) ; Simmons v. State, 61 Miss. 243 (error not to allow accused to state his mental condition when he made a con- fession) ; Armstrong v. Ackley, 71 Iowa, 76, 32 N. W. 180 (health, and pain suffered) ; Rea v. Harrington, 58 Vt. 181, 56 Am. Rep. 561, 2 Atl. 475 (mental suffering; sleeplessness, inability to work, etc., caused by slander) ; Spurrier v. Front Street Cable R. Co. 3 Wash. 659, 29 Pac. 346 (personal injury, pain, and suffering) ; North Chicago Street R. Co. v. Cook, 145 111. 551, 33 N. E. 958 (personal injury, pain and suffering) ; Brown v. Third Ave. R. Co. 19 Misc. 504, 43 N. Y. Supp. 1094 (feelings since injury) ; Spaulding v. Bliss, 83 Mich. 311, 47 N. W. 210 (malpractice; feelings as to location and source of pain). h. By observer. — A witness, who had adequate opportunity* of observing the demeanor of a person, may testify directly to the state of feeling apparently manifested by that demeanor.* 1 Tompkins v. Wadley, 3 Thomp. & C. 424 (holding it not error to exclude testimony as to plaintiff's respect for defendant, when there was noth- ing to show that the witness had been in a situation to observe the general deportment). In State v. Baldwin, 36 Kan. 1, 12 Pac. 318, the court lay stress upon the length of acquaintance and frequency of observation; but this con- cerns rather the weight, than the competency, of the evidence. Compare Messner v. People, 45 N. Y. 1, excluding testimony to the signifi- cance or expression of an outcry. 468 BEIEF ON TACTS, 8MoKee v. Nelson, 4 Cow. 355; Abbott, Tr. Ev. 677, 685 (leading case, holding, in action for breach of promise, that on the question of affection a witness may testify whether or not one of the parties was sincerely attached to the other) ; Leary v. Leary, 18 Ga. 696 (divorce) ; State V. Baldwin, 36 Kan. 1, 12 Pac. 318 (allowing question whether there was anything in the appearance which made witness believe the person was in grief or dissatisfied; and testimony to his being in good spirits and seeming happy. Also that one was nervous and showed fear) ; State v. Shelton, 64 Iowa, 333, 20 N. W. 459 (competent to ask whether a person manifested anger) ; St. Louis & S. F. R. Co. v. Murray, 55 Ark. 248, 16 L.R.A. 787, 18 S. W. 50 (testimony of witness who assisted the injured person to pull off and put on his coat after the injury, that he complained of being hurt in shoulder, though not competent as res gestw, competent to show existence of present pain and injury) ; Sherrill v. Western U. Teleg. Co. 117 N. C. 352, 23 S. E. 277. Compare Bagley v. Mason, 69 Vt. 175, 37 Atl. 287, holding in- competent evidence as to belief of witness from the appearance of the plaintiff in an action for assault and battery, as to whether or not he was in pain. For notice of the distinction between this class of evidence and declara- tions, see Gardner v. Klutts, 53 N. C. (8 Jones, L.) 375, 80 Am. Dec. 381. An ordinary witness may testify that a horse appeared to be frightened. Com. V. Sturtivant, 117 Mass. 122, 19 Am. Eep. 401 {dictum); Fol- lowed in Yahn v. Ottumwa, 60 Iowa, 429, 15 N. W. 257; abstr. s. c. in 28 Alb. L. J. 334 (holding that witness might testify that horses were frightened by water being thrown upon them). In prosecution for "disturbing" a meeting, a witness cannot testify directly that the meeting was disturbed; for this is the question for the jury. Morris v. State, 84 Ala. 457, 4 So. 628. One who has nursed and rubbed an injured person may testify to numbness of her limbs which he noticed while so doing. Will v. Mendon, 108 Mich. 251, 66 N. W. 58. And one who was present much of the time assisting in the care of another during his illness as a result of per- sonal injuries may describe his appearance, and state of what, if any- thing, he complained relative to the pain which he suffered. Atchi- son V. Acheson, 9 Kan. App. 33, 57 Pac. 248. In an action for breach of promise of marriage, it is competent, for the purpose of showing how plaintiff was affected by defendant's marriage to another woman, to ask witness how it affected or seemed to affect her; and an answer that she did not talk about the matter, but was downhearted, is admissible. Robinson v. Carver, 88 Iowa, 381, 55 N. W. 492. And a question to plaintiff as to how it affected her when she heard that defendant was married, and her answer that she "hated it awful bad," are competent as relating to facts touching her condition, mentally and physically, resulting from defendant's marriage. FEELINGS. 469 2. H'atnral manifestations of present feelingp. The apparently spontaneous manifestations of present feel- ing, by demeanor, gesture, outcry, moan, tears, and the like, — as distinguished from declarations describing feelings, — are original evidence.* IHagenlocher v. Coney Island & B. E. Co. 99 N. Y. 136, 1 N. E. 536; St. Louis & S. F. R. Co. v. Murray, 55 Ark. 248, 16 L.K.A. 787, 29 Am. St. Rep. 32, 18 S. W. 50; Hoadley v. M. Seward & Son Co. 71 Conn. 640, 42 Atl. 997 ; Broyles v. Prisock, 97 Ga. 643, 25 S. E. 389 ; West Chicago Street R. Co. v. Kennelly, 170 111. 508, 48 N. E. 996; Huntington V. Burke, 21 Ind. App. 655, 52 N. E. 415; Hughes v. Nolte, 7 Ind. App. 526, 34 N. E. 745; Kelly v. Cohoes Knitting Co. 8 App. Div. 156, 40 N. Y. Supp. 477; Jackson v. Wells, 13 Tex. Civ. App. 275, 35 S. W. 528; Bagley v. Mason, 69 Vt. 175, 37 Atl. 287; Bothell v. Seattle, 17 Wash. 263, 49 Pac. 491; Duffey v. Consolidated Block Coal Co. 147 Iowa, 225, 30 L.R.A.(N.S.) 1067, 324 N. W. 609; Bennett v. Northern P. R. Co. 2 N. D. 112, 13 L.R.A. 465, 49 N. W. 408; Williams v. Great Northern E. Co. 68 Minri. 55, 37 L.R.A. 199, 70 N. W. 860; Rideout v. Winnebago Traction Co. 123 Wis. 297, 69 L.R.A. 601, 101 N. W. 672. But testimony as to exclamations of pain, made by the injured person during the examination, cannot be given by a physician who has been employed to examine a person who contemplates suing for in- juries received through another's negligence, for the express pur- pose of making him a witness in such suit. Jones v. Portland, 88 Mich. 598, 16 L.R.A. 437, 50 N. W. 731. 3. Declarations describing feeling. Declarations descriptive of present feeling, made as part of the res gestce of a fact properly in evidence, are competent original evidence.* Whether other declarations descriptive of feeling, past or present, are competent, is disputed.^ IFrink v. Coc, 4 G. Greene, 555, 61 Am. Dec. 141, with note; McMurrin v. Rigby, 80 Iowa, 322, 45 N. W. 877; Missouri, K. & T. R. Co. v. San- ders, 12 Tex. Civ. App. 5, 33 S. W. 245 (holding that evidence of the attending physician that on the day of the occurrence the injured person complained to him of pain in certain parts of his body, and of a witness that the person complained to him after the train had gone about 35 yards as to the nature of his injuries, and that he could go no further, is competent as part of the res gestw) ; Inter- national & G. N. E. Co. V. Kuehn, 2 Tex. Civ. App. 210, 21 S. W. 470 BMEF ON FACTS. 58 (holding that complaints of existing suffering and exclamations of present pain by an injured person, made before suit brought for the injuries, are admissible as res gestw, but not when made after suit brought or after the litigation is in view). For the principles and contrasted authorities as to what the rule of res gestw lets in, see Criminal Trial Brief. For the strongest cases, see Travellers' Ins. Co. v. Mosley, 8 Wall. 397, 19 L. ed. 437, favoring a free admission of subsequent declarations as part of the res gestw. Contra: Reg. v. Bedingfield, 14 Cox, C. C. 341. i Affirmative : Atchison, T. & S. F. R. Co. v. Johns, 36 Kan. 769, 59 Am. Rep. 609, 14 Pac. 237 ; abstr. 36 Alb. L. J. 118 ; Cleveland, C. C. & I. R. Co. V. Newell, 104 Ind. 264, 54 Am. Rep. 312, 3 N. E. 839, and cases cited; Hancock County Comrs. v. Leggett, 115 Ind. 544, 18 N. E. 53 (holding that declaration's indicative of existing pain or suffer- ing, and expressive of it, are competent, and quoting with approval from State v. Davidson, 30 Vt. 377, 73 Am. Dec. 312, to the effect that such declarations are received to show the extent of latent injuries upon the person upon the general ground that such injuries are in- capable of being shown in any other mode except by such declarations as to their effect, but they are not admitted as part of the res gestw [Per Redfield, Ch. J.] ) ; Strudgeon v. Sand Beach, 107 Mich. 496, 65 N. W. 616 (holding declarations of present suffering competent, and not objectionable as hearsay, so long as they do not amount to narrations of past conditions); Will v. Mendon, 108 Mich. 251, 66 N. W. 58 (holding that the fact that they are made in the absence of the other party makes no difference) ; Williams v. Great Northern R. Co. 68 Minn. 55, 37 L.R.A. 199, 70 N. W. 860. See also, on this question, Hawkes v. Chester, 70 Vt. 271, 40 Atl. 727; City R. Co. v. Wiggins, — Tex. Civ. App. — , 52 S. W. 577; Texas & P. R. Co. v. Barron, 78 Tex. 421, 14 S. W. 698; Lange v. Schoettler, 115 Cal. 388, 47 Pac. 139; Kansas City, Ft. S. & M. E. Co. v. Stoner, 2 C. C. A. 437, 10 U. S. App. 209, 51 Fed. 649; Bennett v. Northern P. R. Co. 2 N. D. 112, 13 L.R.A. 465, 49 N. W. 408; Keyes v. Cedar Falls, 107 Iowa, 509, 78 N. W. 227; Northern P. R. Co. v. Urlin, 158 U. S. 271, and note to same case, 39 L. ed. 977, 15 Sup. Ct. Rep. 840; State v. Gedicke, 43 N. J. L. 86 (abortion; holding that the declarations by the female to the physician who was examining her, of bodily feelings and symtoms of pregnancy, are admissible in evidence as part of the facts on which his opinion is formed. This is an exception to the rule as to hearsay evidence, and seems to be founded on the strong inducement she had to speak the truth, the examination being to care for health. New trial on other ground. Citing Barber v. Merriam, 11 Allen, 322 ; Bacon v. Charlton, 7 Cush. 581; 1 Greenl. Ev. 102; Wharton, Crira. Ev. 2711). But it is firmly established that physicians or others, called to examine or confer with the injured party with reference to the trial of a pending case, are not permitted to testify to the declara- FEELINGS. 471 tions or exclamations made at the time, so far as they are voluntary. McKormick v. West Bay City, 110 Mich. 265, 68 N. W. 148, and cases cited. Negative: Roche v. Brooklyn City & N. R. Co. 105 N. Y. 294, 59 Am. Kep. 506, 11 N". E. 630 {negligence case; statements descriptive of present feelings made long before the injury, not competent). Approved in part in 22 Cent. L. J. 509, where the conflicting cases are well re- viewed. •Compare Reed v. New York C. R. Co. 45 N. Y. 574; overruling 56 Barb. 493 (declarations of pain as caused by efforts at labor long before the injury, not admissible) ; Kennedy v. Rochester City & B. R. Co. 130 N. Y. 654, 29 N. E. 141 (holding that declarations of pain and suffer- ing, made a few hours after the accident to one not a physician ia at- tendance professionally, are incompetent). It was not long ago the general practice to receive such declarations; and much may be said in favor of that rule because, if pain, for instance, though long after the injury, is a relevant fact, as to show damages, a material manifestation of pain, such as limping or rubbing the in- jured member, may be proved; and then the ordinary application of the rule of the res gestw would let in what was said in the act as characterizing It, except that this would not bring in also a narrative of a past event. For that rule is not confined to the act which forms the main issue, but extends to all relevant facts. But apparent abuses resulting from receiving descriptive declarations of pain in negligence cases had led to a reconsideration of the rule; and the better opinion now is, that a party seeking to recover damages on account of his own suffering cannot give in evidence, in his own behalf, his own descriptive declarations of suffering, as distinguished from apparently spontaneous manifestations of the distress. Leading cases under general rule; Caldwell v. Murphy, 11 N. Y. 416; Werely v. Persons, 28 N. Y. 344, 84 Am. Dec. 346. Exclamations of pain, etc., are competent in criminal prosecution for as- sault. Com. V. Jardine, 143 Mass. 567, 10 N. E. 250. Subsequent declarations as to previous mental state are not competent. See Criminal Trial Brief. 4. Feigning. An expert who testifies to his means of knowledge may testi- :fy as to whether a person whom he examined was feigning pain.' 1 Chicago, B. & Q. R. Co. v. Martin, 112 111. 16, abstr. 32 Alb. L. J. 358. But see Cole v. Lake Shore & M. S. R. Co. 95 Mich. 77, 54 N. W. 638 (to the effect that an expert cannot give his opinion that plaintiff in an action for personal injuries is shamming before the jury). 472 BEIEF ON FACTS. 5. Experiment. It is not error to allow a physician to thrust a pin into the flesh of a party, to demonstrate loss of sensation, though both were unsworn * 1 Osborne v. Detroit, 32 Fed. 36. FICTITIOUS PERSONS. 1. Bank account. 2. Declarations. 3. Inquiries. a. In general. b. Weight of evidence. 4. Explanation. 5. Effect of use. 6. Fictitious grantee. For cognate topics, see Absence; Dummy; Names; Negative. 1. Bank account. A bank pass book purporting to show an account with a speci- fied person is inadmissible to show that such person is not a fictitious person.' 1 A bank account can be kept in a fictitious name, as well as anything else can be done under such a name. Hirsch v. Jones, — Tex. Civ. App. — , 42 S. W. 604. 2. Declarations. Declarations of a person active in the preparation of an in- strument, and made in connection with the transaction, are FICTITIOUS PEESONS. 473 admissible to show that one named as a party was a fictitious person.' 1 Taylor v. Crowninshield, 5 N. Y. Legal Obs. 209 (Robertson, Asst. V. C). 3. Inquiries. a. In general. — To prove that there was no such person as had been supposed or pretended to be indicated by a name, it is competent for a witness to testify to his search and inquiries made for the purpose of finding such a person among persons most likely to know him if there were such an one ; and to the result.* The witness may testify that he examined appropriate public records, — such as examining assessment rolls for the name of a person represented to be a farmer, — and found no such name there ; and it is not necessary to produce the record itself.* 1 People V. Jones, 106 N. Y. 523, 13 N. E. 93, affirming 25 N. Y. Week. Dig. 541 (holding it proper to allow the witness to be asked what he did, and to state that he had conversations and could get no informa- tion; if he was not allowed to repeat the conversations); People v. Sanders, 114 Cal. 216, 46 Pac. 153, s. p.. People v. Sharp, 53 Mich. 523, 19 N. W. 168 (holding that the extent of search, etc., affects the weight, not the competency, of the evidence ) . But it is held error to allow the answers given to his questions to be re- peated by the witness. Wiggins v. People, 4 Hun, 540. 2 People V. Jones, 106 N. Y. 523, 13 N. E. 93, affirming 25 N. Y. Week. Dig. 541. b. Weight of evidence. — Testimony to such unsuccessful in- quiries is sufficient to throw upon the adverse party the burden of showing the existence of such a person.* 1 Taylor v. Crowninshield, 5 N. Y. Legal Obs. 209. But even nonappearance on a muster roll of the name of one seeking to collect back pay is not conclusive. Thompson v. Fargo, 63 N. Y. 479, affirming 48 How. Pr. 93. 4. Explanation. Evidence of misspelling is competent by way of explanation.* 1 TurnbuU v. Bowyer, 40 N. Y. 456, 100 Am. Dec. 523, affirming 2 Robt. 406. 474 BEIEF ON FACTS. 5. Effect of use. One who makes an instrument in a fictitious name is bound thereby.^ He may be cbargeable with forgery, in case of crim- inal intent.^ And a person who makes a contract in a fictitious name may be sued thereon in that name.' i David V. Williamsburgh City P. Ins. Co. 83 N. Y. 365, 38 Am. Rep. 418, reversing 7 Abb. N. C. 47, and eases cited (holding that plaintiff deriv- ing title under a conveyance from his grantor to a fictitious name, followed by a conveyance executed by the same grantor in the fictitious name to plaintiff, had an insurable interest ) . Compare McDuffie v. Clark, 39 Hun, 106. The question of use of fictitious name as affecting the validity of an instrument is the subject of a note in 39 L.R.A. 423. And the question when is a negotiable instrument deemed payable to the order of a fictitious person, within the rule which regards such an instrument as payable to bearer, is treated in a note in 22 L.R.A. (N.S.) 499. 2 Ex parte Hibbs, 26 Feb. 4^1 (postal money order procured in such name, and letter asking bank to collect it ) . 3 Dictwm in Snook's Petition, 2 Hilt. 566, and cases cited. 6. Fictitious grantee. A grant made to a fictitious person is not a genuine instru- ment having a legal existence, within the rule that a third per- son claiming thereunder can claim to be a bona fide purchaser.' 1 Moffat V. United States, 122 U. S. 24, 28 L. ed. 623, 5 Sup. Ct. Rep. 10 (so held of a government grant). Compare David v. Williamsburgh City F. Ins. Co. 83 N. Y. 265, 38 Am. Rep. 418, reversing 7 Abb N. 0. 47. Otherwise of a grant to real persons in fictitious or assumed names. Colorado Coal & I. Co. v. United States, 123 U. S. 307, 31 L. ed. 182, 8 Sup. Ct. Rep. 131. But the want of proof that sUch persons existed does not raise a presump- tion that they were fictitious. Atty. Gen. v. Ruggles, 59 Mich. 123, 26 N. W. 419. Where it was claimed that a guardian for the purpose of defrauding his ward made a conveyance of his property to a fictitious person. and the guardian testified that the grantee lived in a certain place, person residing at that place were permitted to testify that no such person had ever lived there. Phelps v. Nazworthy, 226 111. 254, 80 N. E. 756. FILING. 475 FILING. Mode of proving. Mode of proving filing and nonfiling.^ 1 1 Abbott, New Pr. & F. 90; Peterson v. Taylor, 15 Ga. 483, 60 Am, Dec. 705, with note; People v. Hurlbutt, 44 Barb. 126; Sampson v. Buf- falo, N. y. & P. R. Co. 4 Thomp. & C. 600, 2 Hun, 512; Jennings v. Newman, 52 How. Pr. 282; Sunderlin v. Wyman, 10 Hun, 493; Briggs V. Waldron, 83 N. Y. 582, affirming 9 N. Y. Week. Dig. 219. An indorsement of the filing, on a petition for a lien, made by the clerk, is prima facie evidence that the petition was filed in his office on the day stated in the indorsement. Minton v. Underwood Lumber Co. 79 Wis. 646, 48 N. W. 857. See also Howell v. Slauson, 83 Cal. 539, 23 Pac. 692, holding that an indorsement on a transcript of the original list of lands selected by the state as indemnity for the loss of school lands, a,s "received and filed December 5, 1871," ac- companied by testimony of the register of the local land office that the transcript was received from the General Land Office and was de- posited as part of the records, is sufficient evidence, although lacking a file mark, that it was filed in the local land office. Primary and secondary evidence: Parol evidence that a copy of a chattel mortgage was left with the clerk and the latter'a fees paid is inad- missible to prove the filing, unless the copy is produced with the filing upon it, or some showing made why it cannot be produced. Curtis V. Wilcox, 91 Mich. 229, 51 N. W. 992. Although the statute makes the indorsement of the clerk evidence of the filing of a notice of intention to enforce a mechanics' lien, yet if he neglects to make the proper indorsement, proof of the filing may be made by other evidence. Building & Planing Mill Co. v. Huber, 42 Mo. App. 432. The true date of the presentation for record of an instrument may be shown by oral testimony, although the county recorder is required by statute to enter upon each instrument the date and precise time of day of its presentation. Kalb v. Wise, 5 Ohio N. P. 5. Evidence that a certificate of nomination was handed to the secretary of state out of the office and out of office hours was held insufficient to show proper filing which must have been made by depositing the certificate in the office with some person in charge thereof during office hours. Cowie v. Means, 39 Colo. 1, 88 Pac. 485. There is no presumption that u, complaint was filed prior to the entry of judgment. Leiteh v. Wells, 48 N. Y. 585. ■476 BEIEF ON FACTS, FIXTURES. See also Intent. Evidence of intent. The question of iixture or not being now largely a question of intent in the annexation/ circumstantial evidence is compe- tent to show the intent ; * and evidence of an express agreement is not necessary.' But the party who annexed the chattel cannot in his own favor testify directly as to whether the thing could be removed without injury to the realty.* 1 Potter V. Cromwell, 40 N. Y. 287 ; Voorhees v. McGinnis, 48 N. Y. 278, 282; McEea v. Central Nat. Bank, 66 N. Y. 489, affirming 50 How. Pr. 51; Muehling v. Muehling, 181 Pa. 483, 37 Atl. 527; Ames v. Trenton Brewing Co. 56 N. J. Eq. 309, 38 Atl. 858; Wentworth v. S. A. Woods Mach. Co. 163 Mass. 28, 39 N. E. 414; Hewitt v. Gfeneral Electric Co. 164 111. 420, 45 N. B. 725. z Causey v. Empire Plaid Mills, 119 N. C. 180, 25 S. E. 863. In Wash- ington Nat. Bank v. Smith, 15 Wash. 160, 45 Pac. 736, it is held that the intention that a chattel shall become a part of the realty cannot be shown by evidence of the actual state of mind of the owner, but must be gathered from the circumstances surrounding the transaction. 3 Batcheller v. Commercial Union Assur. Co. 143 Mass. 495, 10 N. E. 321, and cases cited (holding that it is enough to show that the parties contemplated the ownership contended for). 4 Phoenix Mills v. Miller, 4 N. Y. S. R. 787, 792, reversing for error in re- ceiving such testimony. Landon, J., dissented. Compare Intent. FOEEIGN LAW. 477 FOKEIGN LAW. 1. Judicial notice. 2. Presumptions. 3. Oral evidence. a. What law is. b. As to construction. 4. Usage in territories acquired by United States. 5. Statute bool.e also Intent ; Knowledge; Notice. 1. Right to prove affirmatively; direct testimony. When the good faith of a party is put in issue, he has a right to give affirmative evidence of it,* and he may testify directly to his good faith.^ Thus, a person to whom the vfant of good faith is imputed in. a statement shown to have been made by him may be asked whether he then believed this statement to be correct.' 1 Macon County v. Shores, 97 U. S. 272, 24 L. ed. 880; Howland v. Flood, 160 Mass. 509, 36 N. E. 482; Miller v. Winfree, 4 Tex. App. Civ. Cas. (Willson) 383, 15 S. W. 918. One whose ownership of negotiable paper is put in issue has a right to prove that he became owner in good faith. Ralls County v. Douglass, 105 U. S. 728, 26 L. ed. 957. But good faith on the part of a mortgagee sued for statutory damages for refusing to satisfy the mortgage after lawful tender of the amount due is immaterial. Campbell v. Seeley, 43 Mo. App. 23. 496 BEIEF ON FACTS. 2 People V. Eudorf, 149 111. App. 215. But see Arnd v. Aylesworth, 145 Iowa, 185, 29 L.R.A.(N.S.) 638, 123 N. W. 1000. ■3 Rawls V. American Mut. L. Ins. Co. 27 N. Y. 282, 84 Am. Dec. 280, affirming 36 Barb. 357. 2. Presumption and burden of proof. a. In general. — As a general rule, the law presumes, in the absence of evidence to the contrary, that the business transac- tions of every man are done in good faith and for an honest purpose; and anyone who alleges bad faith or a dishonest and fraudulent purpose has the burden of proving the same.^ Thus, holders of negotiable instruments, in the absence of any testi- xnony to impeach their good faith, are presumed to be bona :fide holders.^ And proof simply that the instrument was without consideration, or that the consideration, originally valid, has since failed, is not sufficient to overcome this pre- sumption.* But where there is evidence that the instrument had a fraudulent inception, the burden is on the transferee to show under what circumstance the prior title was taken, and that he is himself either a bona fide purchaser for value before maturity, or holds under one who was such a purchaser.* If the purchaser of a negotiable paper for value was put on in- >quiry, he may be presumed, in support of his good faith, to have made the necessary inquiries.^ On the question of the burden of proof as to the good faith ■of a purchaser claiming against a prior unrecorded conveyance or encumbrance, there is much conflict of opinion,^ but the numerical weight of authority, at least, supports the propo- sition that the burden of proof lies upon the subsequent pur- chaser to show not only that he purchased the property in ques- tion for a valuable consideration, but that he did so without notice of the other party's claim.'' In Illinois, however, the rule is established that the presumption is that the one claim- ing under a recorded deed is a bona fide purchaser, and that the burden of proof to show bad faith and want of consideration is upon one who claims under a prior unrecorded com'ey- -ance.' And in Maine, under a statute providing that a prior unrecorded deed is not effectual against other persons claim- ing under a subsequent recorded deed without "actual notice" GOOD IfAITH. 497 ■of the prior deed, it is held that the burden of proving that the subsequent purchaser had such notice is on the one claiming under the unrecorded deed.® And under statutes declaring prior unrecorded conveyances void as against subsequent purchasers in good faith and for a valuable consideration, whose conveyances were first duly re- corded, the burden of proof is also placed upon the party claim- ing under the unrecorded deed.^" There is a line of cases which seem to take middle ground as to who has the burden of proof, holding that where a party relies upon being a bona fide purchaser, and shows that he has paid ii valuable consideration, the burden of showing that he pur- chased with notice is on the party alleging or relying on notice to defeat the former's claim. ^^ JBaughman v. Penn, 33 Kan. 504, 6 Pac. 890; Cooke v. Cooke, 43 Md. 522; Mordhurst v. Ft. Wayne & S. W. Traction Co. 163 Ind. 268, 66 L.E.A. 105, 106 Am. St. Rep. 222, 71 N. E. 642, 2 Ann. Cas. 967 ; Kendrick v. Colyar, 143 Ala. 597, 42 So. 110; Freeman v. Topkis, 1 Marv. (Del.) 174, 40 Atl. 948; Anthony v. Wheeler, 130 111. 128, 17 Am. St. Eep. 281, 22 N. E. 494; Jones v. Simpson, 116 U. S. 609, 29 L. ed. 742, 6 Sup. Ct. Rep. 538. S Burke v. American Loan & T. Co. 155 U. S. 534, 39 L. ed. 251, 15 Sup. Ct. Eep. 214; Thompson v. Love, 61 Ark. 81, 32 S. W. 65; Galvin v. Meridian Nat. Bank, 129 Ind. 439, 28 N. E. 847; Billingsly v. Crad- dock, 82 Iowa, 721, 47 N. W. 893; First Nat. Bank v. Elliott, 46 Kan. 32, 26 Pac. 487; Rossiter v. Loeber, 18 Mont. 372, 45 Pac. 500 (even though the holder took after maturity). For a comprehensive treatment and review of cases on this question, see note to Canajo- harie Nat. Bank v. Diefendorf (N. Y.) 10 L.R.A. 677. « National Bank v. Miller, 51 Neb. 156, 70 N. W. 933; Little v. Mills, 98 Mich. 423, 57 N. W. 266; Holden v. Phoenix Rattan Co. 168 Mass. 570, 47 N. E. 241. And according to Wright v. Hardie, — Tex. Civ. App. — , 30 S. W. 675, proof of want of consideration, and transfer in fraud of the maker's rights, does not cast upon the indorsee the burden of showing that he took without notice of the maker's equity; he need only show that he acquired the instruments before maturity in the usual course of business and for a valuable consideration. 4 Hazard v. Spencer, 17 E. I. 561, 23 Atl. 729; Doe v. Northwestern Coal & Transp. Co. 78 Fed. 62; Graham v. Larimer, 83 Cal. 173, 23 Pac. 286; Harrington v. .Johnson, 7 Colo. App. 483, 44 Pac. 368; Kain v. Bare, 4 Ind. App. 440, 31 N. E. 205; Skinner v. Eaynor, 95 Iowa, 536, 64 N. W. 601; Arnd v. Aylesworth, 145 Iowa, 185, 29 L.R.A. (N.S.) Aeb. Facts — 32. 498 BEIEF ON FACTS. 638, 123 N. W. 1000; Brook v. Teague, 52 Kan. 119, 34 Pac. 347; BanU V. McCoaker, 82 Md. 518, 34 Atl. 539; Conant v. Johnston, 165 Mass. 450, 43 N. E. 192; Stevens v. McLachlan, 120 Mich. 285, 79 N. W. 627; Bank of Montreal v. Riehter, 55 Minn. 362, 57 N. W. 01; Henry V. Sneed, 99 Mo. 407, 12 S. W. 663; Thamling v. Duffey, 14 Mont. 567, 37 Pac. 363; See v. Heppenheimer, 55 N. J. Eq. 240, 36 Atl. 966; American Exch. Nat. Bank v. New York Belting & Pkg. Co. 148 N. Y. 698, 43 N. E. 108; Knowlton v. Schultz, 6 N. D. 417, 71 N. W. 550, and cases cited; Ditton v. Purcell, 21 N. D. 648, 36 L.R.A.(N.S.) 149, 132 N. W. 347; Piedmont Bank v. Hatcher, 94 Va. 229, 26 S. E. 505. So, also, where there is proof that the instrument was without consideration, and based on a transaction contrary to public policy. French v. Talbot Paving Co. 100 Mich. 443, 59 N. W. 166. Or that the instrument has been materially altered. Smith v. Eals, 81 Iowa, 235, 46 N. W. 1110. The transfer of a note in violation of an agreement that it would be re- turned if the property for which it was given did not give satisfaction is a fraud, which casts upon the transferee the burden of showing that he took the note in good faith. Pierson v. Huntington, 82 Vt. 482, 29 L.R.A.(N.S.) 695, 137 Am. St. Rep. 1029, 74 Atl. 88. 5 Weeks v. Fox, 3 Thomp. & C. 354; Miller v. Crayton, 3 Thomp. & C. 360. Compare Abbott, Tr. Ev. 2d ed. 906-908. 6 For full review of authorities, see note in 36 L.R.A.(N.S.) 1124. TEversdon v. Mayliew, 65 Cal. 167, 3 Pac. 641; Dundee Realty Co. v. Leavitt, 87 Keb. 711, 30 L.R.A.(N.S.) 389. 127 N. W. 1057; Watldns v. Edwards, 23 Tex. 443; Errett v. Wheeler, 109 Minn. 157, 26 L.R.A. (N.R.) 816, 123 N. W. 414; Young v. Schofield, 132 Mo. 650, 34 S. W. 497; \A'eber v. Rothschild, 15 Or. 385, 3 Am. St. Rep. 162, 15 Pac. 050; Gardner v. Early, 72 Iowa, 518, 34 N. W. 311; Jackson ex dem. Rounds v. M'Chesney, 7 Cow. 360, 17 Am. Dec. 521; Clark v. Sayers, 55 W. Va. 512, 47 S. E. 312. 8 Ryder v. Rush, 102 111. 338; Anthony v. Wheeler, 130 111. 128, 17 Am. St. Rep. 281, 22 N. E. 494; Lowden v. Wilson, 233 HI. 340, 84 N. E. 245. =» Butler V. Stevens, 26 Me. 484 ; Spofford v. Weston, 29 Me. 140 ; Marshall V. Dunham, 66 Me. 539; Sidelinger v. Bliss, 94 Me. 316, 49 Atl. 1094. 10 Ward V. Isbill, 73 Hun, 550, 26 N. Y. Supp. 141; Austin v. Staten. 126 N. C. 783, 36 S. E. 338; Hull v. Diehl, 21 Mont. 71, 52 Pac. 782; Center v. Planters' & M. Bank, 22 Ala. 743. 11 Osceola Land Co. v. Chicago Mill & Lumber Co. 84 Ark. 1, 103 S. W. 609; Block & P. Iron Co. v. Holcomb-Brown Iron Co. 105 Iowa, 624, 67 Am. St. Rep. 319, 75 N. W. 499; Walter v. Brown, 11.") Iowa, 360, 88 N. W. 832; Atkinson v. Greaves, 70 Miss. 42, 11 So. 688; Lamar V. Hale, 79 Va. 147; Barton v. Barton, 75 Ala. 400. GOOD FAITH. 499 h. Possession. — Possession of property raises no presump- tion as to the good faith of the transfer to the possessor. The rule is otherwise, however, as to possession by an indorsee of negotiable instruments properly indorsed.* 1 Norton v. McNutt, 55 Ark. 59, 17 S. W. 362, Citing 1 Greenl. Bv. § 39, note; Rawley v. Brown, 71 N. Y. 85. 2 First Nat. Bank v. Emmitt, 52 Kan. 603, 35 Pac. 213; Hargis v. Louis- ville Trust Co. 17 Ky. L. Eep. 218, 30 S. W. 877; Third Nat. Bank v. Angell, 18 R. I. 1, 29 Atl. 500; Bank of Spencer v. Simmons, 43 W. Va. 79, 27 S. E. 299. See also cases reviewed in note to Commercial Bank v. Burgwyn (N. C.) 17 L.E.A. 326. 3. Information. The information on which a person acted is original evidence, whether true or false, where the question is whether he acted prudently, wisely, or in good faith.' 1 Werner v. Com. 80 Ky. 387, s. p., Criminal Trial Brief; Oberlender V. Spiess, 45 N. Y. 175 (action for deceit) ; Hathaway v. Sun Mut. Ins. Co. 8 Bosw. 33, 50 (survey, as showing good faith of master). So, the fact of taking competent advice on a statement of all the facts may be shown. Jackson ex dem. Hooker v. Mather, 7 Cow. 301. 4. Reason for disregard of notice. When circumstances relied on as charging a person with want of good faith by puting him on inquiry have been proved, he has a right to explain them by stating the reasons why he did not pursue inquiry.' So, after stating the explanation given to him on inquiry, he may testify that he was satisfied with the explanation.* 1 Seybel v. National Currency Bank, 54 N. Y. 288, 13 Am. Rep. 583, with note, aflBrming 4 Abb. Pr. N. S. 352, 2 Daly, 383 (disregard by bank- er of notice of losses by theft, left at his office, explainable by his testimony that his business was so large that it was impracticable to attend to such notices). « Dutchess County Mut. In?. Co. v. Haehfield, 73 N. Y. 228. 300 BBIEF ON PACTS. GEAISTT. 1. When presumed generally. 2. Without actual execution. For cognate topics, see Acceptance; Consideeation ; Date; Delivery. 1. When presumed generally. A grant is not to presumed on the ground of possession and the lapse of time, except when title has been shown by the party who calls for the presumption, good in substance, but wanting some essential matter to make it formally complete, and where the possession has been consistent with the fact presumed.-' But it is a general rule that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure wherever, by possibility, a right may be ac- quired in any manner known to the law.^ And direct proof of the existence of a deed may be aided by the presumption to be derived from possession and repeated acts of ownership, in establishng the title to real estate.' 1 Enders v. Sternbergh, 2 Abb. App. Dec. 31, reversing 52 Barb. 222 ; Brown v. Oldham, 123 Mo. 621, 27 S. W. 409; Hasson v. Klee, 181 Pa. 117, 37 Atl. 184; Von Rosenberg v. Haynes, 85 Tex. 357, 20 S. W. 143; Texas Mexican K. Co. v. Uribe, 85 Tex. 386, 20 S. W. 153; Logan v. Ward, 58 W. Va. 366, 5 L.R.A.(N.S.) 156, 52 S. E. 398. 8 United States v. Chaves, 159 U. S. 452, 40 L. ed. 215, 16 Sup. Ct. Rep. 57, Citing 1 Greenl. Ev. 12th ed. § 17 ; Ricard v. Williams, 7 Wheat. 59, 109, 5 L. ed. 398, 410; Coolidge v. Learned, 8 Pick. 503; Atty. Gen. v. Revere Copper Co. 152 Mass. 444, 9 L.R.A. 510, 25 N. E. 605; Smith V. Cornelius, 41 W. Va. 59, 30 L.R.A. 747, 23 S. E. 599. In Mississippi a statute provides that adverse possession for tvpenty-five years under a claim of right or title shall be prima facie evidence that the lavr authorizing the disposition of the lands had been complied with, and the lease or sale duly made; an adverse possession of land for more than twenty-five years under an alleged lease, whether valid or invalid, is sufficient to entitle the possessor to the benefit of this presumption. Carroll County v. Estes, 72 Miss. 171, 16 So. 908. 8 Cahill V. Cahill, 75 Conn. 522, 60 L.R.A. 706, 54 Atl. 201, 732. GEANT. 501 After a great lapse of time and a series of circumstances disclosing an unchallenged fee-simple title, during such period, of property orig- inally held under a lease, the courts will presume Tyhatever grant is necessary to extinguish the landlord's title, in aii ejectment proceed- ing against one claiming under such title. Townsend v. Boyd, 217 Pa. 386, 12 L.K.A.(N.S.) 1148, 66 Atl. 1099. 2. Without actual execution, Possession and use sufficiently long continued may create a presumption of a conveyance or grant, even though they do not satisfy the jury that a conveyance was in point of fact executed. It is sufficient if the evidence leads to the conclusion that the conveyance might have been executed, and that its existence would he a solution of the difficulties arising from its nonexecu- tion.' 1 Dunn V. Eaton, 92 Tenn. 743, 740, 23 S. W. 163 ; Fletcher v. Fuller, 120 U. S. 534, 30 L. ed. 759, 7 Sup. Ct. Rep. 667, s. o., after retrial, 44 Fed. 34, where the court say: "It is not necessary, in order to pre- sume a conveyance, to believe that the conveyance was in point of fact executed. It is sufficient if the evidence leads to the conclusion that a conveyance might have been executed, and that its existence would be a solution of the difficulties arising from its nonexistence. It is not founded on a belief that a grant has actually been made in the par- ticular ease, but on the general presumption that a. man will natural- ly enjoy what belongs to him, the difficulty of proof after lapse of time, and the policy of not disturbing long-continued possessions. It is not indispensable, in order to lay a proper foundation for the legal presumption of a grant, to establish the probability of the fact that a grant ever issued. It would be sufficient ground for a presump- tion to show that, by legal possibility, a grant might have been issued. Though the presumption of a grant or deed is one that may he re- butted by proof of facts inconsistent with its supposed existence, yet where no such facts are shown, and the things done and the things omitted with regard to the property in controversy by the respective parties, for long periods of time after the execution of the supposed conveyance, can be explained satisfactorily only upon the hypothesis of its existence, it is the duty of the jury to presume a conveyance, and thus quiet the possession." For the general rule, see Abb. Tr. Ev. 2d ed. 808, 897 ; Messinger's Appeal, 109 Pa. 285, 4 Atl. 162, abstr. 32 Alb. L. J. 476. For the application of the rule to easements, see Nicholls v. Wentworth, 100 N. Y. 455, 3 N. E. 482. As to conclusiveness of presumpti'on, see House v. Montgomery, 19 Mo. App. 170. 502 BEIEF ON FACTS. For an explanation of how the rule as to the presumption arose, and the way it is in part, superseded now in England by historical evidence that the right was always in the supposed grantees and their prede- cessors, see Pollock's Land Laws. HABIT. 1. Direct testimony. 2. Single instance; and repetition. 3. Limits of time. 4. Reputation. .5. Presumption of continuance. For cognate topics, see Caee; Chaeactek; Intoxication, 1. Direct testimony. A witness who has had adequate opportunities of observation may testify directly to the existence of a habit.^ 1 Gallagher v. People, 120 111. 179, 11 N. E. 335; Lynch v. Moore, 154 Mass. 335, 28 N. E. 277. 2. Single instance; and repetition. Habit may be proved by successive acts,^ and a single in- stance is competent,^ subject to the discretionary power of the court to limit the number of instances.' But when proof of habit is necessary, some degree of frequent repetition must be shown.* 1 Todd V. Rowley, 8 Allen, 51, 58. HABIT. 503 3 United Brethren Mut. Aid Soc. v. O'Hara, 120 Pa. 256, 13 Atl. 932 (holding it error to exclude the question, — Did you ever see him under the influence of liquor? — when the object was to prove intemperate habits) ; Gahagan v. Boston & L. R. Co. 1 Allen, 187, 59 Am. Dec. 724, (The witness may be asked if he ever saw any indication of intemper- ance in appearance or conduct). Evidence of a plea of guilty, by an applicant for insurance, to a charge of drunkenness, is admissible in an action by the assignee of the beneficiary upon the policy, in support of a defense of misrepresenta- tion by the applicant as to his habits in that regard, where the plea was not so remote from the time of the application as to have no evidentiary value. Langdeau v. John Hancock Mut. L. Ins. Co. 194 Mass. 56, 18 L.R.A.(N.S.) 1190, 80 N. E. 452. 3Com. V. Ryan, 134 Mass. 223. (Compare § 3, this title, note 2.) ■4 Knickerbocker L. Ins. Co. v. Foley, 105 U. S. 354, 26 L. ed. 1057; Cos- grove V. Pitman, 103 Cal. 268, 37 Pac. 232 (to the effect that it can- not be said that to take an occasional social drink, or even to be occasionally "under the influence" of a drink, constitutes a habit of drinking). 3. Limits of time. To show habit existing at a specified time it is competent, after having given evidence of previous acts of the kind, to give evidence of subsequent acts as proving that the previous conduct was not accidental or unusual, but frequent and the result of a fixed habit.* It is error to exclude evidence of such acts because not within an arbitrary period, — such as one year before the time in question,* — or merely because occurring after suit brought.' iTodd v. Rowley, 8 Allen, 51, 58 (habit of a horse to shy). SBoecher v. Lutz, 13 Daly, 28, 2 N. Y. City Ct. Rep. 205, note (ferocious habit of dog). (Compare § 2, this title, note 3) ; Bailey v. Belfast, — Me. — , 4 New Eng. Rep. 763, 10 Atl. 452 (habit of horse to shy). Otherwise of a habit of a corporation. Davidson v. St. Paul, M. & M. R. Co. 34 Minn. 51, 24 N. W. 324 (holding it proper to confine evidence of the negligent habit of the company, as to construction and use of its engines, to about the time of tlie fire complained of). An inquiry as to the habits of sobriety of plaintiff in an action for per- sonal injuries, for the purpose of determining whether his expectation of life IS equal to the average shown by the tables of mortality, should not be confined to the date of the injury, but, if confined to his habits at such time, may extend down to the trial two years afterwards, 504 BEIEF ON FACTS. since habits are not formed hurriedly. Townsend v. Briggs, 99 Cal. 481, 34 Pac. 116. 3 Made V. Handy, 39 La. Ann. 491, 2 So. 181 (evidence on intemperance, — in divorce, — not offered to malie out cause of action, but to show con- tinuing habit). 4. deputation. But proof that a person had the reputation of being intem- perate is not proof of the fact that he had such habit, and does not support an inference that he was intoxicated at a specified 1 Cosgrove v. Pitman, 103 Cal. 268, 37 Pac. 232. 5. Presumption of continuance. It will be presumed, in the absence of any evidence to the contrary, that a habit, when once proved to exist, continues the ILane v. Missouri P. E. Co. 132 Mo. 4, 33 S. W. 645, 1128; McCraw v. McCraw, 171 Mass. 146, 50 N. E. 526; Marstoo v. Dingley, 88 Me. S46, 34 Atl. 414 {dictum). EANDWEITINQ. 505 HANDWEITHSTG. I. Testifting as to One's Own Handwritino. 1. Direct testimony; authorizing signature. 2. Writing in court. a. On direct examination. b. On cross-examination. 3. Concealing part of writing. II. Testimony of Nonexpert from Knowledge of Handweitino. 4. Acquaintance with handwriting; general rule. 5. Not secondary evidence. 6. Form of question. 7. Competency of witness generally, 8. Means of knowledge. a,. Having seen write. b. Having seen genuine writing. c. Only having seen communication received in usual course of business. d. Having received letters. c. Having seen ancient documents. 9. Testimony competent, though not positive. 10. Witness prepared out of court. a. In general. b. Refreshing memory. 11. Privilege of professional relation. 12. Testimony of interested witness or party to handwriting of deceased, etc. 13. Ordinary witness cannot make comparison. 14. Testing knowledge. a. In general. b. Refreshing memory on cross-examination. c. Requiring to pick out genuine writing. 15. Cross-examination for purposes of contradiction. m. Testimont of Experts, With oe Without the Aid of Standards OF Comparison. 16. Expert defined. . 17. Expert's direct opinion founded on comparison. 18. Qualification of witness. 19. Expert's testimony to peculiar characteristics. 20. Expert cross-examination on differences. 21. Cross-examination for purpose of contradiction. IV. Standards of Comparison, With or Without the Aid of Experts. 22. Document not already in the case as standard for comparison. 23. What is considered as in evidence. 606 BEIEF ON FACTS. 24. Use of papers in the record. 25. Use of irrelevant documents as standards. a. In general. b. Writing of third person. 26. What law controls. 27. Disputed writing and standard to be produced before compari- son. 28. Genuineness of standards, a question for the court. 29. Requisite authentication of standards of comparison. 30. Comparison by jury or referee. 31. Taking to the jury room. V. Photographs, Letter-Pbess Copies, Magnifying Gi.ass, and Super IMPOSITION. 32. Photographic copies. 33. Letter-press copies. 34. Use of magnifying glass. 35. Tracing and superimposition. VI. Circumstantial Evidence and Admissions. 36. Peculiar usages of language. 37. Aptitude to imitate, 38. Opportunity. 39. Condition of writer. 40. Admission of such an instrument. Tor kindred topics, see Cokrobobation ; Genuineness; Habit; Mabe; Negative; Opinions. I. Testifying as to One's Own Handwriting. 1. Direct testimony; authorizing signature. On the question of the genuineness of the signature the per- son whose name was used may be asked directly, Did you sign ■that ? Did you authorize anyone to sign it ? ^ 1 Such a, question to complainant, on trial of indictment for forgery, was approved in Com. v. Kepper, 114 Mass. 278. 2. Writing in court. a. On direct examinaiion. — The person whose writing is in dispute cannot write in court and offer the writing on his own be- half for the purpose of comparison with the disputed writing.^ •1 King V. Donahue, 110 Mass. 155, 14 Am. Eep. 589 (reversible error to permit such volunteer writing for comparison by jury. But dictum that j^everal signatures made prior to the controversy were properly HANDWEITINa. 507 received, though not otherwise relevant. Otherwise of signature made on cross-examination, for purposes of contradiction), s. P., Com. v, Allen, 128 Mass. 46, 35 Am. Rep. 356, and People v. DeKroyft, 49 Hun, 71, 75, 1 N. Y. Supp. 692 {dictum) ; United States v. Jones, 20 Blatchf. 235, 10 Fed. 469 (held, no error to refuse to permit the jury to compare the disputed writing with a copy made for the purpose by the accused in their presence; for in the United States courts "the extent of the rule is to permit the jui-y to compare writings lawfully in evidence for some other purpose"). 6. On cross-exdmination. — At the request of the adverse piirty, the person whose writing is in dispute may be per- mitted to write in court for the purposes of comparing; and writing so made may be received in evidence against him.' 1 Bronner v. Loomis, 14 Hun, 341 (holding that a signature so made at the request of the adveres party, or obtained on cross-examination of the witness, is admissible when offered by such adverse party for the purpose of comparison ) ; People v. DeKroft, 49 Hun, 71, 1 N. Y. Supp. 692 (holding signature made in open court admissible at the instance of the adverse party, upon common-law principles, even though the statute [N. Y. Laws 1880, chap. 36] may be broad enough in its provisions to make the evidence competent) ; Bradford v. People, 22 Colo. 157, 43 Pac. 1013 (where the question is discussed at some length, and many cases cited, and it is held that where a witness has denied writing a document which is alleged to be a forgery, or has denied his signature thereto, he may be required to write in open court in order that the jury may compare such writing with the writ- ing disputed) ; Chandler v. Le Barron, 45 Me. 534 (holding it no error to receive, on the offer of plaintiff, » signature made in court by plaintiff, upon his cross-examination, and allow it to go to the jury for comparison; the court stating that by the rule in Maine it was not necessary that the standard be already in evidence). In Gilbert v. Simpson, 6 Daly, 29, it was held no error to refuse to compel a witness to sign in court for purpose of comparison, — the refusal being upon the ground that, even if compelled, the signature could not be compared by an expert; but since Miles v. Loomis, 75 N. Y. 288, 31 Am. Rep. 470, the law is otherwise. So, such compulsory writing in court is proper where a juror asked the witness on cross-examination to write, and the opposite party offered the signature as a part of his cross-examination, against objection. United States v. Mullaney, 32 Fed. 370 (a prosecution for unlawfully writing names in registration for election, holding that where the ac- cused had testified that he did not write them, it was not error to compel him, on cross-examination, to write them in the presence of 508 BRIEF ON FACTS. the jury, and to allow the government to offer them in rebuttal, and the jury to compare them with the book. Such proceeding is le- gitimate cross-examination, and the accused cannot be allowed to say that he was thereby compelled to furnish evidence against himself). But see Criminal Trial Brief. But in First Nat. Bank v. Robert, 41 Mich. 710, 3 N. W. 199, a request that a party write was excluded because it would be for comparison of an irrelevant document; and in State v. Lurch, 12 Or. 99, 6 Pac. 408, a prosecution for forgery, it was held reversible error to require accused on cross-examination to write his name for comparison, if he has not testified as to the matter of the signature in chief, for, in Ore- gon^ cross-examination is strictly confined by the direct. In Smith v. King, 62 Conn. 515, 26 Atl. 1059, a witness was asked to print his name for the purpose of comparison with the same name on a handkerchief claimed to be his. It appeared that at the time the name had so faded out that it was not legible enough for com- parison; the witness himself had disclaimed ownership and all knowl- edge of the handkerchief, and it was not claimed that the name on the handkerchief was written or printed by him, or resembled his writing, or that he had seen it, or that in fact it could have been seen at the time of the trial. His refusal of the request was upheld by the court on the ground that there was no power to require it. On appeal the court held that while the trial court had power to require it to be done its action, in view of the fact that there appeared to be no reason for such an experiment, was correct. Compai-e Hayes v. Adams, 2 Thomp. & C. 593 (holding it not error to permit the person whose signature is in question to write his name upon the referee's minutes, by consent, for the purpose of comparison by the referee), and Spence v. Lindo (N. Y.) 19 Alb. L. J. 179 (where it seems to have been held reversible error to allow a person whose hand-writing is in question to write in open court upon re- quest of the court, although no objection was made by either party). It is not error to refuse to compel a witness to rewrite, in the presence of the jury, indorsements which she testifies that she made at the request of the maker and payee of a note, the execution and genuine- ness of which are controverted, where the indorsements were made many years before the trial, when the witness was a young girl, and she has testified that her handwriting has changed and improved much since she made the indoresments. Williams v. Riches, 77 Wis. 569, 46 N. W. 817. 3. Concealing part of writing. It is not competent, for the purpose of testing the ability of a party to recognize his own handwriting, to show him the signature or other inadequate part of a document the rest HANDWPaTING. 509 of which is concealed, and require him to say whether it is his or not/ unless he has testiiied to his ability to recognize his handwriting at sight.* 1 It is not error to require defendant's attorney to exhibit the body of a paper to plaintiff on cross-examination before requiring him to state whether the signature thereto was his or not; for it is too severe a test to show him only the signature without the benefit of the con- text to enable him to identify it. North American F. Ins. Co. v. Throop, 22 Mich. 161, 7 Am. Eep. 638. 2 It is discretionary and not error, where the party has denied his signa- ture to the note sued upon, and has said on cross-examination: "I guess I can distinguish my signature whenever I see it." Here the party was required to identify signatures purporting to be his, but not in evidence and exhibited to him through a slit in an envelope which concealed the rest of the instrument. The justification of the ruling appears to be in the party's avowal of ability. Hardy v. Norton, 66 Barb. 527. II. Testimony of Nonexpeet from Knowledge of Hand- WEITING. 4. Acquaintance with handwriting; general rule. The genuineness or falsity of disputed handwriting may be proved by the testimony of a witness, though not an expert, who is acquainted with the handwriting of the person who is sup- posed to have written it.^ 1 Rogers v. Eitter, 12 Wall. 317, 20 L. ed. 417; Redding v. Redding, 69 Vt. 500, 38 Atl. 230; Poncin v. Furth, 15 Wash. 20], 46 Pac. 241; Stone V. Moore, — Tex. Civ. App. — , 48 S. W. 1097; Long v. Little, 119 111. 600, 8 N. E. 194; Com. v. Nefus, 135 Mass. 533; Hammond v. Varian, 54 N. Y. 398. See also cases in next succeeding sections. 5. Not secondary evidence. The fact that the testimony of the person whose writing is in dispute is available, even when he is disinterested, does not ren- der the testimony of others who are familiar with the handwrit- ing secondary evidence.' iMcCaskle v. Amarine, 12 Ala. 17; Eoyce v. Gazan, 76 Ga. 79; Smith v. Prescott, 37 Me. 277; McCully v. Malcolm, 9 Humph. 193; Foulkes v. Com. 2 Rob. (Va.) 836. Contra: Haun v. State, 13 Tex. App. 383; Cheritree v. Roggen, 67 Barb 124. 510 BBIEF ON FACTS. Thus, in Lefferts v. State, 49 N. J. L. 26, 6 Atl. 521, it was held reversi- ble error to exclude testimony of the accused that certain complaints were signed by the prosecutor in his presence, for the judge erred in ruling that the testimony of the prosecutor was the best evidence; and as the testimony of the prosecutor was hostile, the defendant had been prejudiced. The court says: "The testimony of the man who signed the documents, with respect to the genuineness of his signature, was not of a, higher grade of evidence than the testimony of a man who had seen him make such signature, or who was acquainted with his writing and deposed as to his opinion." But it is not error to admit testimony of a bank teller acquainted with the handwriting of the president and cashier, as to genuineness of bank notes, even against the objection that there was available the better evidence of the president and cashier who resided in an adjoining county. Hess v. State, 5 Ohio, 5, 22 Am. Dec. 767, 769. In this case the court said that "the objection that secondary evidence is substituted for the best does not apply in the case, since there is not such a distinction between one whose knowledge is of his own handwriting, and the knowledge of another's on the same subject, as constitutes the former evidence of a superior degree to the latter." So, also, in Com. v. Pratt, 137 Mass. 98, it was held no error to allow the prosecution to prove the defendant's signature in their own way on a trial for forgery, even though the defendant on trial offered to testify. 6. Form of question. While it is usual to begin tlie examination of the witness with the question "Have you seen the party write ?" the question "Do you know his handwriting?" involves an answer to the former question, and is sufficient to show the competency of the witness.^ 1 Stoddard v. Hill, 38 S. C. 385, 17 S. E. 138. 7. Competency of witness generally. A witness, though not an expert, who states that he is ac- quainted with a person's handwriting, is prima facie competent to testify to the genuineness or falsity of an alleged specimen thereof.* And where he swears that he is so acquainted with such handwriting, the burden is on the opposite party to show that his sources of information are insufficient to qualify him to testify,* HANDWEITING. 511 But it is not error to reject his testimony, if on cross-exam- ination or otherwise he is shown not to be competent to testify.* iHinchman v. Keener, 5 Colo. App. 300, 38 Pac. 611; Stoddard v. Hill, 38 S. C. 385, 17 S. E. 138; Pate v. People, 8 HI. 644; State v. Minton, 116 Mo. 605, 22 S. W. 808, and cases cited. See also cases in note in 63 L.R.A. 966. But it is not indispensable that the witness state in so many words that he is so acquainted with the handwriting; it is enough if the fact does appear that he is. Riggs v. Powell, 142 111. 453, 32 N. E. 482. In Davis v. Higgins, 91 N. C. 382, the court, quoting from Barwick v. Wood, 48 N. C. (3 Jones, L. ) 306, says: "We think when a witness states that he is well acquainted with the handwriting, he is qualified to testify to it prima facie." It is held, also, that proof is not insufficient because the witness does not show how he acquired his knowledge of the handwriting. The latter point is also affirmed in Anderson v. Logan, 99 N. C. 474, 6 S. E. 704. The mere fact that the witness has "had some business" with the party does not qualify him. Mapes v. Leal, 27 Tex. 345. 2 Stone V. Moore, — Tex. Civ. App. — , 48 S. W. 1097, and cases cited. 3 Arthur v. Arthur, 38 Kan. 691, 17 Pac. 187; Guyette v. Bolton, 46 Vt. 228; Richardson Bros. v. Stringfellow, 100 Ala. 416, 14 So. 283. So held where, although the witness on his direct examination showed himself qualified to speak, a doubt of his competency was raised by the cross-examination. Sartor v. Bolinger, 59 Tex. 411. 8. Means of knowledge. a. Having seen write. — A witness, though not an expert, is competent to testify to handwriting, where he has seen the party write,' although only once,^ and then only his name,* or has seen only one specimen of his writing,* and that only his name.^ 1 So held of a witness who states that he has seen the person write often, and knows his writing. Kendall v. Collier, 97 Ky. 446, 30 S. W. 1002; Jacob V. Watkins, 10 App. Div. 475, 42 N. Y. Supp. 6; Poncin v. Furth, 15 Wash. 201, 46 Pac. 241 ; Redding v. Redding, 69 Vt. 500, 38 Atl. 230; Salazar v. Taylor, 18 Colo. 538, 33 Pac. 369. See also cases in note in 63 L.R.A. 968. * Thus, of a witness whose only qualification was in having seen the signer write only on one or more occasions eight years before the trial ; and his testimony, without other evidence on the point, was held suffi- cient to go to the jury. Magee v. Osborn, 32 N. Y. 669, reversing 1 Robt. 689. So held, also, of a witness who has only seen the person write since the beginning of the trial. Tucker v. Hyatt, 144 Ind. G35, 41 N. E. 1047. 512 BEIBF ON FACTS. If the witness has seen a party write and sign a receipt, he is competent to testify as to tlie genuineness of letters alleged to have been written by the same person. Frank v. Berry, 128 Iowa, 223, 103 N. W. 358. Nor is it error to admit the testimony of a witness who has once seen the writer sign his initials to a paper still in possession of the witness, and from the peculiar form of the letters he believes the disputed signature to be genuine. Jackson ex dem. Van Dusen v. Van Dusen, 5 Johns. 144, 4 Am. Dec. 330. 3 Re Diggin, 68 Vt. 198, 34 Atl. 696; Hammond v. Varian, 54 N. Y. 398, {dictum that it is no error to admit the testimony of a witness who has seen the person write his name once). To the same effect, dicta in Stevens v. Seibold, 5 N. Y. S. E. 258, 260, and in Rogers v. Ritter, 12 Wall. 317, 20 L. ed. 417. ■4 Re Diggin, 68 Vt. 198, 34 Atl. 696; Hynes v. McDermott, 82 N. Y. 41-52, 37 Am. Rep. 538 {dictum, that it would be error to reject, as in- competent, the testimony of a witness who had seen only one genuine piece of the handwriting of the person whose handwriting is in dispute ) . s In Clapp v. Betts, 12 N. Y. Week. Dig. 341, the witness, as maker of promissory notes, had mailed them to the person whose indorsement was in question, and requested his indorsement. In due time they were returned with his name indorsed thereon, and witness thought that such indorsement was the signature of such person. It was held error to hold his testimony insufficient to go to the jury; and nonsuit was reversed. h. Having seen genuine writing. — It is not necessary that a •witness should have seen a party write to render him compe- tent to testify to handwriting. He may testify from an ac- quaintance with the writing acquired from having seen papers which the party acknowledged or acquiesced in as being genu- ine.^ iBerg V. Peterson, 49 Minn. 420, 52 N. W. 37; State use of Medford v. Spence, 2 Harr. (Del.) 348; Woodman v. Dana, 52 Me. 9; State v. Hastings, 53 N. H. 452; Hynes v. McDermott, 82 N. Y. 41, 37 Am. Rep. 538 (holding, however, that as to the witness in question his testimony was, for other reasons, properly rejected; and cases in note in 63 L.E.A. 963. But one who states that he has "seen considerable'' of the handwriting, and "thinks he is acquainted" with it, does not come within this rule. Gibson v. Trowbridge Furniture Co. 96 Ala. 357, 11 So. 305. In Sill v. Reese, 47 Cal. 344, it was held that a witness whose knowledge HANDWRITING. 513 •of another's handwriting is derived from familiarization therewith by examination of official archives and records, several hundred in number, purporting to be signed by the person whose handwriting is the subject of inquiry, is competent to give an opinion. To the same effect, see Burdell v. Taylor, 89 Cal. 613, 26 Pac. 1094; Tim- mony v. Burns, — Tex. Civ. App. — , 42 S. W. 133. c. Only having seen conimunicaiion received in usual course -of business. — A witness, though not an expert, is competent to testify to handwriting, although his only Imowledge of it is de- rived from having seen communications purporting to be from the alleged writer, which have been received and acted upon as isuch in the ordinary course of business.' -1 Armstrong v. Fargo, 8 Hun, 175 (holding that testimony of witness that he had seen a large number of receipts which had been signed by an agent of an express company, and from the knowledge thus derived he believed the signature to the receipt to be the agent's, although he had never seen him write, was sufficient proof) ; Baicer v. Squier, 1 Hun, 448, 3 Thomp. & C. 465 (that thousands of chemists' cer- tificates of qjiality of goods had been acted upon by the witness, and received as genuine in the trade, though no other evidence was ad- duced, — held, no error to admit, as sufficient to go to the jury on the question of genuineness) ; Eobinson Consol. Min. Co. v. Craig, 25 N. Y. Week. Dig. 512, 4 N. Y. S. R. 478 (holding that it is not error to allow witness, not having seen the person write, to state that he linew his handwriting from having read his various communications t;o the company of which the witness was vice president, and which had been acted upon by the company as having come from him) ; Stevens v. Seibold, 5 N. Y. S. R. 258, 260 {dictum, that if a witness "has not seen the party write, he must have seen genuine specimens of his handwriting; and the fact that they were genuine must be proved. It is not enough that they purport to come from the person wiiose handwriting is in question. Cunningham v. Hudson River Bank, 21 Wend 557. The authenticity of the specimens may be established by presumptive, as vpell as direct, evidence; as, when letters are directed to a particular person on business, and answers are received in due course, » fair inference arises that the answers were written by the person from whom they purport to come.") It is on this ground that clerks, cashiers, or other officers of banks at which a person has been accustomed to do business may be competent to testify to his handwriting, although they may never have seen him write. Snell v. Bray, 56 Wis. 156, 14 N. ^V. 14; Murieta v. Wolf- hagen, 2 Car. & K. 744. Abb. Facts — 33. 514 BEIEF ON FACTS. d. Having received letters.— -So also is a witness competent whose knowledge has been acquired by seeing letters purporting to be in the handwriting of the party, and afterwards communi- cating personally with the supposed writer upon their contents, or otherwise acting upon them by written answers, producing further correspondence or acquiescence by the writer in some matter to which they relate ; or by transacting with the writer some business to which they relate ; or by any other mode of communication between the witness and the writer which in the usual course of transaction of life induces a reasonable presump- tion that the letters were in the supposed writer's handwriting.^ 1 Campbell v. Woodstock Iron Co. S3 Ala. 35], 3 So. 369; Atlantic Ins. Co, V. Manning, 3 Colo. 224; Southern Exp. Co. v. Thornton, 41 Miss. 2]6; Empire Mfg. Co. v. Stuart, 46 Mich. 482, 9 N. W. 527; Thomas. V. State, 103 Ind. 419, 2 N. E. 808; Pearson v. McDaniel, 62 Ga. 100; Clark v. Freeman, 25 Pa. 133; Chaffee v. Taylor, 3 Allen, 598; Parker v. Amazon Ins. Co. 34 Wis. 363; Violet v. Rose, 39 Neb. 060, 58 N. W. 216. See also cases in note in 63 L.R.A. 971, 981 and note in 7 L.R.A. (N.S.) 557. But the mere receipt of letters purporting to be from a person never seen, and with whom no subsequent relations existed which were based on them as genuine, does not qualify the recipient to prove the hand- writing of the signer. Pinkham v. Cockell, 77 Mich. 265, 43 N. W. 921. JS'or does the mere receipt of friendly letters some fourteen years previ- ously, purporting to come from a person. There must be some other admission or acquiescence equivalent to acknowledgment that the let- ters are genuine. Flowers v. Fletcher, 40 W. Va. 103, 20 S. E. 870. e. Having seen ancient documents. — A witness, though not an expert, is competent to testify to handwriting so old that no witnesses can swear to having seen the parties write, if he has become familiar with their signatures by inspecting other an- cient writings bearing such signatures, and which have been treated and regularly preserved as authentic' 1 .Jackson ex dem. Bradt v. Brooks, 8 Wend. 420, affirmed without opinion in 15 Wend. 111. The other ancient writings from which the witnes'- here derived his acquaintance were title deeds belonging to the wit- ness. Jones V. Huggins, 12 N. C. (1 Dev. L.) 223, 17 Am. Dec. 567, to same effect in regard to ancient maps or plans of survey, where the HANDWKITING. )15 witness's knowledge of the surveyor's handwriting was derived from inspecting many ancient plots of surveys attached to grants and purporting to have been made by such surveyor, and so treated. Case reversed on other grounds. See also Stone v. Moore, — Tex. Civ. App. — , 48 S. W. 1097 (where the rule is applied as to proof of handwriting of a person who had been dead thirty years or more). See also cases in note in 63 L.R.A. 984. 9. Testimony competent, though not positive. The testimony of a witness to handwriting is not incompetent merely because he testifies that he thinks it genuine, but will not swear positively.^ 1 Thus, where a witness was familiar with his brother's signature five years ago, but had not seen it in a few years, but thought he knew his signature, and that the one in question loolced like it, and should judge it was his, and that was all he could swear, as it might be someone else's for all he knew, he was held competent to testify as to genuineness of the signature. Stevens v. Seibold, 5 N. Y. S. R. 258. But the case was reversed on other grounds. Nor was it error to admit the testimony of a witness familiar with hand- writing of defendant, that he "thought the signatures" were the defendant's, although on cross-examination he could ''not swear to the signatures," for this went to the weight, not to the competency, of the evidence. Com. v. Andrews, 143 Mass. 23, 8 N. E. 643. Nor was it error to admit a paper as sufficiently proved to go to the jury where a witness (who had seen the alleged writer make two or three notes and sign his name to another) testified that he was "not positive, but should judge it was" such person's handwriting. State v. Stair, 87 Mo. 268, 56 Am. Rep. 449, where the court said: "If the witness has the proper knowledge [of the handwriting] he may declare his belief." See also cases in note in 63 L.R.A. 979. 10. Witness prepared out of court. a. In general. — Knowledge derived by the witness, out of court and after the controversy arose, from examination of genuine writings or seeing the person write, the specimens be- ing chosen or obtained in quest of evidence at the instance of the party calling the witness, does not qualify him to testify to the handwriting; and allowing him to do so upon knowledge ob- tained by such means is error.^ iHynes v. McDermott, 82 N. Y. 41, 53, 37 Am. Rep. 538 {dictum, that if 516 BRIEF ON FACTS. genuine writings are made or chosen by tlie party calling the witness, so as to prepare him out of court, his testimony, based on the result of such inspection, cannot be received; holding it no error to exclude as incompetent a person employed as a detective to secure evidence from the opposite side, and obtaining his only knowledge of genuine handwriting out of court while thus acting; as such evidence is objectionable as being testimony created post litem motam. This decision was based on the law prior to Law 1880, chap. 36) ; Reese v. Eeese, 90 Pa. 89, 35 Am. Rep. 634 (holding that a witness having no Icnow ledge of a handwriting other than that derived fiom seeing the person write several times for the express purpose is incompetent to give an opinion thereof). h. Refreshing memory. — A witness who shows himself ac- quainted with defendant's handwriting may, before or at the trial, refer to papers in his possession which he knows to be in defendant's handwriting, to refresh his memory, before testify- ing.' 1 Thomas v. State, 103 Ind. 419, 2 N. E. 808 (holding that it is not error to permit a witness to do so on direct examination). Soe § 14, b, this title, as to refreshing memory on cross-examination. 11. Privilege of professional relation. The privilege of confidential communications does not render attorney or counsel incompetent to testify to his client's hand- writing.* IHolthausen v. Pondir, 23 Jones & S. 73, 18 N. Y. S. R. 360; Brown v. Jewett, 120 Mass. 215 (held, no error to permit the plaintiff to call defendant's counsel and ask him if signatures on back of a promissory note were the defendants' sued as indorsees, where he had been their counsel for two years, and had seen them write their names four or five times. No opinion was delivered except a memorandum that the evidence was properly admitted; but the trial judge, in overruling the objection of privilege to the question, said that the witness was not required to disclose any matters of confidential communication, or to base his opinion upon any statements of the defendants to him as counsel ) . This is on the ground that his knowledge is not necessarily derived from confidential communications. The principle is the same as the familiar rule that the fact of the relation of the attorney and client is not privileged. But knowledge of the handwriting of a communication between the attorney and client would be privileged if the com- HANDWRITING. 517 munication was. In other words, the privilege does not exclude acquaintance with handwriting of a client though acquired after retainer, unless the questions to the attorney are pushed far enough to show that he knew nothing but what his client had communicated to him. Johnson v. Daverne, 19 Johns. 134, 10 Am. Dec. 198. (The testimony in this ease as stated in the report is not quite clear on this point.) The same principles doubtless apply to the privilege arising from other professional relations. For the New York statute, see N. Y. Code Civ. Proc. §§ 833-836. 12. Testimony of interested witness or party to handwriting of de- ceased, etc. The rule disqualifying a party or interested witness from tes- tifying to a personal transaction or communication with the deceased, etc.,^ does not disqualify from testifying as to his own handwriting, on an instrument to which the deceased was a party,^ nor as to that of the deceased,* unless the testimony in- volves an incident of a personal transaction or communication to which the statute applies.* 1 For this rule, see Abbott, Tr. Ev. 2d ed. 84 et seq. SHussey v. Kirkman, 95 N. Y. 63 {dictum; held, reversible error to ex- clude the alleged maker's denial of the signature to note after death of payee, who indorsed to plaintiff) ; Evans v. Ellis, 22 Hun, 460 (held reversible error to exclude the quetsion: "Is that your signa- ture?" No opinion reported). 3 Simmons v. Havens, 101 N. Y. 427, 433, 5 N. E. 73 (allowing grantee to testify that she had the deed in her possession, and that the sig- nature was that of deceased. Objection overruled because it did not appear from whom she received the deed, nor did the testimony involve any personal transactions, etc.). In Stillwell v. Patton, 108 Mo. 352, 18 S. W. 1075, a widow whose knowl- edge of her deceased husband's handwriting was founded on acquaint- ance therewith by having seen him write before their marriage is held competent to testify to his handwriting. And a. statement by her on redirect examination: "Here is one just like it (producing a note) ; I have more in my possession," — is no more than a further statement as to the means by which she acquired the information which enabled her to testify, and is not to be stricken out on motion. 4 Abbott, Tr. Ev. 2d ed. 85, note. Garvey v. Owens, 37 Hun, 498 (held, reversible error to allow the witness to testify to the genuineness of the signatures of himself and the de- ceased; here the testimony apparently implied an interview) ; Howell 518 BEIEF ON FACTS. V. Manwaring, 3 N. Y. S. R. 454 (holding it not error to exclude ques- tions as to whether witness saw the assignment by the deceased signed, and whose signature it was ) . Compare Saratoga County Bank v. Leaeh, 37 Hun, 336, and Evans v. Ellis, 22 Hun, 460, in last note perceding. 13. Ordinary witness cannot make comparison. Both under the statute as to comparison, and in the absence of statute, a witness not an expert is incompetent to express an opinion on a comparison of handwriting.^ 1 McKay v. Lasher, 42 Hun, 270 (held, reversible error to allow it, under Laws 1880, chap. 36, which does not change the law in this respect) ; Mixer v. Bennett, 70 Iowa, 329, 30 N. W. 587 (to same effect under Iowa Code) ; Spottiswood v. Weir, 80 Cal. 448, 22 Pao. 289; Mugge v. Adams, 76 Tex. 448, 13 S. E. 330; Jarvis v. Vanderford, 116 N. C. 147, 21 S. E. 302. Contra. Bell v. Brewster, 44 Ohio St. 690, 10 N. B. 679 {dictum; citing Bragg V. Colwell, 19 Ohio St. 407; Pavey v. Pavey, 30 Ohio St. 600; Calkins v. State, 14 Ohio St. 222). Compare Benedict, H. & Co. v. Flanigan, 18 S. C. 506, 44 Am. Rep. 583, where it is held no error to admit opinion of one not a professional ex- pert where the direct proof was doubtful; Weaver v. Whilden, 33 S. C. 190, 11 S. E. 686, where it is held that witnesses who are not familiar with the handwriting of a person are not competent to testify as to his alleged signature to a written Instrument from a comparison of handwriting. 14. Testing knowledge. a. In general. — To ascertain the Imowledge of a witness as to handwriting, it is proper to ask him as to the general charac- ter and importance of the other writings he saw signed, though the contents may be irrelevant ; ^ and any proper test may be al- lowed in the discretion of the court.* 1 Bardin v. Stevenson, 75 N. Y. 164 (defenes of forgery, to action on note; held, no error, becaues although details as to the contents would be incompetent, yet their general importance as imposing upon, or re- leasing a pecuniary obligation to, the signer "might well call more particular attention of the witness to them" than if unimportant, and thus be relevant to the witness's knowledge). 2 Hinchman v. Keener, 5 Colo. App. 300, 38 Pac. 611. In Hardy v. Newton, 66 Barb. 527, an action upon a note, defendant had denied that the signature thereto was his, and upon cross-examination had said: "I HANDWEITING. 519 guess I can distinguish my signature wlienever I see it." It was held discretionary to permit him to be asked whetlier tlie signatures purporting to be his to seven different papers not in evidence were his, even though successively shown to him through a slit in a large en- velope entirely concealing the rest of the paper; for the only object ■was to test his knowledge. So, in Bank of the Commonwealth v. Mud- gett, 44 N. Y. 514, where a witness had testified that he knew the person's handwriting in dispute, and that the indorsement to the note sued on was genuine, it was held no error to ask him, on cross-exam- ination: "In the course of your official duties (as assistant ap- praiser), are you called upon to pass and act upon the signature of the deputy collector" (defendant), and "how many times a day?" for it was material to show the means and extent of the knowledge of the witness. But it was also held proper to exclude, on cross- examination of a witness who testified that it was his impression that the signature in dispute was genuine, the inquiry, "Would you take it against his denial of the signature?" — for this was mere speculation and vague belief. h. Refreshing memory on cross-examination. — Independent of any rule allowing use of irrelevant papers as standards of comparison, confessedly genuine writing may be shown to a witness on cross-examination, to refresh his memory in order to have him correct his testimony in respect to the disputed writ- ing.* 1 National Bank v. Armstrong, 66 Md. 113, 59 Am. Eep. 156, 6 Atl. 584 (held, reversible error to refuse to allow witnesses testifying that a signature was not genuine to be asked, on cross-examination, to re- fresh their memory by looking at a letter admitted to be genuine, but not relevant, and then state whether they still were of opinion that the disputed' signature was not genuine, where they had testified that they were familiar with the defendant's handwriting, and that it was heavier and larger than the one in question. The court said that to have allowed this "would in no wise have infringed the rule, which is well settled in this state, against proof of handwriting by comparison of hands"). In McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336, it is held that a nonexpert witness, who has testified in regard to the disputed signa- ture of an attesting witness to a will, cannot be cross-examined in regard to the signature of such witness upon a cash book which he has in his possession, on the ground that he may look at such pages to refresh his memory. c. Requiring to pick out genuine writing. — A witness can- 520 BEIEE ON FACTS, not, on cross-examination, be required to pick out the genuine signatures from a number of specimens, in order to test his. knowledge.^ 1 Massey v. Farmers' Nat. Bank, 104 111. 327 (held, no error on cross- examination to exclude the question whether the witness could point out the genuine signatures, if any, among a list of sixteen, written on a slip to test the knowledge of the witness, who had testi- fied that he had seen the party write some years before, and that it was his impression that the signature to the note in question was- genuine). But compare Age; Identity. 15. Cross-examination for purposes of contradiction. A witness to handwriting cannot be asked, on cross-examin- ation, his opinion as to a document not relevant to the issue,^ and not already received as a standard of comparison,^ for the purpose of contradicting his an.swers. 1 Van Wyck v. Mcintosh, 14 N. Y. 439 ; McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336, dictum; Bank of the Commonwealth v. Mudgett, 44 N. Y. 514, 523; United States v. Chamberlain, 12 Blatchf. 390, Fed. Cas. No. 14,778; Tyler v. Todd, 36 Conn. 218 (citing Bacon v. Williams, 13 Gray, 525, to the same effect). In Rose v. First Nat. Bank, 91 Mo. 399, 60 Am. Rep. 258, 3 S. W. 876, the issue being whether a check was forged, the court, over objection, permitted to be presented to the bank cashier, upon cross-examination, two checks upon which were written the alleged forged name; and subsequently a witness in rebuttal testified that he had written the name at the trial. It was held reversible error, as the rule which excludes com- parison with extrinsic papers and signatures is substantially the same in direct and cross-examination. In White Sewing Maeh. Co. v. Gordon, 124 Ind. 495, 24 N. E. 1053, it was held to be in the discretion of the court, where witnesses have been examined as to the genuineness of signatures, to refuse to allow them to be asked, on cross-examination, as to the genuineness of other signatures purporting to have been written by the same person. They were not papers in the case, and the signatures thereto had not been admitted or proved as genuine, and could not be used for purposes of comparison. And in Brown v. Tourtelotte, 24 Colo. 204, 50 Pae. 195, an action upon a promissory note alleged to have been made by one deceased, where the defense was that the signature was forged, it was held inadmissible, upon cross-examination of a witness, to show a variance in her signa- ture upon two receipts, which she testified she signed, for the purpose HANDWKITING. 521 of drawing an inference therefrom that the handwriting of the alleged malcer of the note varied, and that the witness might be mistaken in her evidence as to the identity of the signature to the note. 2 This qualification is not stated by the authorities. III. Testimony of Experts, With oe Without the Aid of Standards of Compaeison. 16. Expert defined. An expert on handwriting is a person accustomed to and skilled in the matter of genuine and spurious handwriting.* 1 Griffin v. Working Women's Home Asso. 151 Ala. 597, 44 So. 605. For full review of authorities as to competency of expert witness, see notes in 63 L.R.A. 937 and 63 L.R.A. 985. 17. Expert's direct opinion founded on comparison. An expert although having no other knowledge of the hand- writing in question than that derived in court from a compari- son of the disputed writing with other documents conceded or proved to be genuine, not only may point out the characteristics and differences, but may give his opinion as to the genuineness or simulation of the handwriting from such comparison;* or whether two specimens were written at the same time,^ or were written by the same person.* 1 In support of the rule as stated, see Moon v. Crowder, 72 Ala. 79 j Hanriot v. Sherwood, 82 Va. 1; Calkins v. State, 14 Ohio St. 222; Keyser v. Pickrell, 4 App. D. C. 198; Walker- v. Steele, 121 Ind. 436, 22 N. E. 142, 23 N. E. 271; McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336; Grand Island Bkg. Co. v. Shoemaker, 31 Neb. 124, 47 N. W. 696; Tunstall v. Cobb, 109 N. C. 316, 14 S. E. 28; Kornegay v. Kornegay, 117 N. C. 242, 23 S. E. 257; Durnell v. Sowden, 5 Utah, 216, 14 Pac. 334; Bridgman v. Corey, 62 Vt. 1, 20 Atl. 273; Archer V. United States, 9 Okla. 569, 60 Pac. 268; Miles v. Loomis, 75 N. Y. 288, 31 Am. Rep. 470, affirming 10 Hun, 372. This decision in effect overrules many earlier decisions of the lower New York courts. Sudlow V. Warshing, 108 N. Y. 520, 15 N. E. 532. The restriction of this rule, as laid down in the first case cited, to comparison with documents already in evidence, has been superseded in New York and other states by statute; and in several other jurisdiction has not existed. See § 32. But that evidence of experts based on a lettnr improperly admitted as a standard of comparison because its execu- 522 BEIEF OSr FACTS. tion is denied by the purported writer is inadmissible to establish the genuineness of a disputed signature, see Coolc v. First Nat. Banic, — Tex. Oiv. App. — , 33 S. W. 998. See, further, cases in note to Dresler v. Hard (N. Y.) 12 L.R.A. 456. In conilict with the rule as above stated, see Tome v. Parkersburg Branch R. Co. 39 Md. 36, 17 Am. Rep. 540; Fee v. Taylor, 83 Ky. 259 (holding it only allow- able where the writing is so old that living witnesses cannot be had, but not old enough to prove itself). Compare Williams v. Conger, 125 U. S. 397, 31 L. ed. 778, 8 Sup. Ct. Rep. 933 {dictum, that "it is well settled that a witness who only knows a person's handwriting from seeing it in papers produced on the trial, and proved or ad- mitted to be his, will not be allowed, from such knowledge, to testify to that person's handwriting, unless the witness be an expert, and the writing in question is of such antiquity that witnesses acquainted with the person's handwriting cannot be had") ; Richardson v. Green, Gl Fed. 423 (holding expert testimony competent). In South Carolina the competency of opinions of experts or other suffi- ciently qualified witnesses to state an opinion formed by comparison in court, is held to depend on whether the direct proof is doubtful or conflicting. Graham v. Nesraith, 24 S. C. 285; Benedict, H. & Co. v. Flanigan, 18 S. C. 50.6, 44 Am. Rep. 583. In Pennsylvania the rule is stated to be that evidence touching the genu- ineness of a paper may be corroborated by a comparison to be made by a, jury between that paper and other well-authenticated writings of the party; but that a, mere expert witness cannot make the com- parison, and testify to his conclusion from it. Rockey's Estate, 155 Pa. 453, 26 Atl. 656. See also McKinney v. McCain, 8 Sadler (Pa.) 286, 11 Atl. Ill; Travis v. Brown, 43 Pa. 9, 82 Am. Dec. 540. But see Whitmire v. Montgomery, 165 Pa. 253, 30 Atl. 1016, where it is held that one who has never seen the defendant write, and is not acquainted with his handwriting or signature, may nevertheless testi- fy as an expert to the genuineness of signatures submitted to him. z Tally V. Cross, 124 Ala. 567, 26 So. 912. 3 Goza V. Browning, 96 Ga. 421, 23 S. E. 842; Rogers v. Tyley, 144 111. 652, 32 N". E. 393; Kornegay v. Kornegay, 117 N. C. 242, 23 S. E. 257. And the testimony of an expert as to a disputed signature is not rendered inadmissible as based upon a writing not in the case, by the fact that, before taking the stand, he examined a writing not introduced, where he examined another writing which is in the case, and testified that the handwriting in both was the same, and that he based his opin- ion as to the signature in question upon "the writing." Mallory v. Ohio Farmers' Ins. Co. 90 Mich. 112, 51 N. W. 188. 18. Qualification of witness. One who has for many years been engaged in a business re- HANDWRITING. 523 quiring him to compare signatures to determine their genuin- ness is competent to testify as an expert, although he has not made special study of handwriting.* But evidence by the alleged maker of a note that he could read and write, and would know his own signature, does not constitute proper foundation so as to permit him to testify as an expert that the signature to the note was not in his handwrit- ing.^ 1 Wheeler & W. Mfg. Co. v. Buckhout, 60 N. J. L. 102, 36 Atl. 772. And according to People v. Flecliter, 44 App. Div. 199, 60 N. Y. Supp. 777, bank tellers, bank officers, and other persons whose daily business and duties for several years have compelled them to scrutinize and exam- ine writings, are qualified to speak as experts. See also Christman V. Pearson, 100 Iowa, 634, 69 N. W. 1055, holding that an attorney whose business for fifteen years has required him to examine dif- ferent handwriting a great deal, and who has frequently made com- parisons and discriminations between handwritings, is competent to testify as- an expert whether the same persons wrote two different signatures shown to him, the genuineness of one of which is admitted. A witness who testifies that he has been a register of deeds for two years, and a merchant for fifteen or twenty years, and has frequent occasion to examine and compare handwritings, and can tell by comparison whether two signatures were made by the same person or not, is competent to testify whether two signatures are in the game hand- writing. Kornegay v. Kornegay, 117 N. C. 242, 23 S. E. 257. So held, also, in the case of a witness who testifies that he has been register of deeds for ten years, and engaged in mercantile business for forty years, and has been in the habit of comparing writings. And a witness who states that he has been in business as clerk and store- keeper for a long time; that he has been clerk of the court and sheriff, and has been frequently called upon to examine handwriting; . and from his means of observation can form an opinion satisfactory to himself as to whether two pieces of writing are by the same per- son, — is held qualified to testify as an expert, in Yates v. Yates, 76 N. C. 142. But a bookkeeper who has seen many different kinds of hand- writing, but has never knowingly seen a paper that was forged, and has no skill or experience in comparing forged with genuine hand- writing, cannot be asked to compare an alleged forged signature with the genuine signature of the same person, to a paper not in evidence, offered for the purpose of comparison, and state whether the signature is genuine. Curtis v. State, 118 Ala. 125, 24 So. 111. For notes on competency of expert witness to handwriting, see 63 L.R.A. 937 and 63 L.R.A. 985. SPillard v. Dunn, 108 Mich. 301, 66 N. W. 45. 524 BEIEI? ON FACTS. 19. Expert's testimony to peculiar characteristics. An expert may be asked to point out to the jury peculiarities in and differences between different handwriting,^ and give an opinion as to naturalness or simulation/ even in those jurisdic- tions where experts are not allowed to give an opinion as to genuineness based upon a comparison.^ llron City Nat. Bank v. Peyton, 15 Tex. Civ. App. 184, 39 S. W. 223; Goodyear v. Vosburgh, 63 Barb. 154 {dictum-, in effect, that if a genuine document is properly in evidence for other purposes, an expert may point out the difference between the signature thereto and tlie signature in dispute, as to naturalness or simulation, color of ink, manner of formation, characteristics of letters, etc., and say that if one is genuine he would reject the other; but holding it re- versible error to allow such comparisons to be made with the signa- ture of a document introduced for that sole purpose; the statute [Laws 1880, chap. 36] has now superseded the holding upon the latter point) ; United States v. Chamberlain, 12 Blatchf. 390, Fed. Cas. No. 14778 (ruled on trial for depositing scurrilous postal cards in the mail, that an expert might point out to the jury features of defendant's handwriting already in evidence, identical with those displayed by the cards ) . 2 In Sudlow v. Warshing, 108 N. Y. 520, 15 N. E. 532, in an action to re- cover possession of land, the plaintiffs denied the genuineness of the signatures to the deed under which defendants claimed; but testified that they bore a resemblance to their signatures and to those of the other grantors; and one of them testified that what purported to be his signature to the deed was a fair imitation. An expert for de- fendants was allowed, against objection, to testify that he found no evidence in the said signatures that they were "simulated imitations instead of genuine signatures." Held, no error. And in People v. Hewit, 2 Park. Crim. Rep. 20, a trial for forgery, it was held no error to permit experts to give their opinion that the instrument alleged to be forged is not a simulated hand. So also in Moody v. Eowell, 17 Pick. 490, 28 Am. Dec. 317, it was held no error to permit an expert to give an opinion from a mere inspection of the disputed signature, as to "whether it is a free, natural, and genuine hand, or a stiff, artificial, and imitated one.'' See also last note above. But it is not competent for an expert to testify that a forger, in disguising and imitating handwritings, is more particular at the beginning than at the close, of the effort. Miller v. Dill, 149 Ind. 326, 49 N. E. 272. 8 Travis v. Brown, 43 Pa. 0, 82 Am. Dec. 540 {dictum, in effect, that ex- perts may give their opinion as to whether a signature appears simu- lated or natural, and may point out peculiarities thereof; but hold- HANDWKITINQ. 525 ing it reversible error for them to compare it with a genuine standard, this being the sole province of the jury in that state), 20. Expert cross-examination on differences. An expert testifying against the genuineness of a signature may be required, on cross-examination, to point out what differ- ences he can discover between such signature and a genuine sig- nature used as a standard of comparison.* lln Winnie v. Tousley, 36 I-Iun, 390, where a, witness had given his opin- ion that, from its general appearance and the formation of some of its letters, the disputed signature was not genuine, — held, reversible error to exclude, upon cross-examination, a question requiring him to describe what differences he could discover between certain let- ters in the disputed signature and the same letters in the genuine signature, in evidence as a standard of comparison; for, under the statute (N. Y. Laws 1880, chap. 36), both witness and the jury may make comparison, and the opposite party has a right to thus test the witness upon cross-examination. (It does not clearly appear from the report whether the witness was an expert or not.) 21. Cross-examination for purpose of contradiction. The rule that cross-examination on an irrelevant document not already received as a standard of comparison is not allowable applies to an expert.'' 1 Rose V. First Nat. Bank, 91 Mb. 399, 60 Am. Ecp. 258, 3 S. W. 876. See also People v. Murphy, 44 N. Y. S. R. 7, 17 N. Y. Supp. 427, where It is held that expert witnesses, who, upon comparison of disputed writing with concededly genuine writing of defendant, have testified that that in dispute was written by him, and on cross-examination have given their opinion that other writings shown them were also in his handwriting, cannot be contradicted by evidence that the latter writings were in fact written by third persons. And in State v. Griswold, 67 Conn. 290, 33 L.R.A. 227, 34 Atl. 1046, the question how many handwritings a witness found on pieces of paper which had not been in the case was excluded as raising a collateral issue on cross-examination of a witness to handwriting. But in Johnston Harvester Co. v. Miller, 72 Mich. 265, 40 N. W. 420, it was held that where experts have testified from comparison as to the genuineness of signatures, a test of the value of their opinions by in- quiring as to the genuineness of the signatures of another name by comparison of papers already in evidence is not improper. And in Browning v. Gosnell, 91 Iowa, 448, 59 N. W. 340, a witness who 526 BEIEF ON ITACTS. testified as an expert to the genuineness of a signature was, for the purpose of testing the value of his evidence, aslced to give his opinion as to tlie genuineness of signatures which were prepared for that pur- pose, and in the handwriting of any person. IV. Standaeds of Comparison, With oe Without the Aid OF Experts. 22. Document not already in the ease as standard for compari- son. In the absence of statute, no document can be used as a stand- ard of comparison, unless already in the case for another pur- poses.^ 1 Altliough in some jurisdictions the contrary rule prevails (see § 25, this title), this is according to the weight of authority. Williams v. Con- ger, 125 U. S. 413, 31 L. ed. 786, 8 Sup. Ct. Rep. 933 (dictum); Rogers v. Tyley, 144 111. 652, 32 N. E. 393 ; Moon v. Crowder, 72 Ala. 79; Miller v. Jones, 32 Ark. 337; People v. Parker, 67 Mich. 222, 34 N. W. 720 (reversible error to use others) ; Weidman v. Symes, 116 Mich. 619, 74 N. W. 1008; State v. Clinton, 67 Mo. 380, 29 Am. Rep. 506 (reversible error to allow experts to give their opinion based upon a comparison with others) ; Rose v. First Nat. Bank, 91 Mo. 399, 60 Am. Rep. 258, 3 S. W. 876 (reversible error to permit witness to be cross-examined as to genuineness of signatures to papers not already in evidence for other purposes, and to contradict his answers thereto, for the rule which excludes extrinsic papers and signatures for purposes of comparison applies also in cross-examination) ; State v. Miller, 47 Wis. 530, 3 N. W. 31 (reversible error to admit a letter not already in the case; for standard of comparison must be clearly proved to be genuine, and already in the ease for some other purpose. So held, even where the offered letter had been written by defendant at request of the police, who dictated the exact language of an original letter in dispute, and alleged to contain his threat to commit the crime of which he was charged, and where the copy so made contained a facsimile of words of peculiar form, style, and orthography in the original letter) ; Keyser v. Pickrell, 4 App. D. C. 198 (reversible error to use others, although they had been used without objection on cross-examination) ; White Sewing Mach. Co. v. Gordon, 124 Ind. 495, 24 N. E. 1053; Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003; Jarvis v. Vanderford, 116 N. C. 147, 21 S. E. 302; State v. Koontz, 31 W. Va. 127, 5 S. E. 328; Cook v. First Nat. Bank, — Tex. Civ. App. — , 33 S. W. 998. IIANDWEITIWG. 527 Compare United States v. Chamberlain, ]2 Blatehf, 390, Fed. Cas. No. 14,778; United States v. Jones, 10 Fed. 469 (held, no error to refuse to permit an expert, not familiar with the handwriting of the accused, to compare the disputed handwriting with writing made in court by the accused, and give an opinion as to genuineness of the disputed writing, as the writing made in court was not in evidence for other purposes, and under the circumstances might not be regarded as the usual handwriting of the accused). But that it is proper for either witness or jury to use as standard papers which constitute part of the record, and are undisputed, see Wilber v. Eicholtz, 5 Colo. 240; McCaflferty v. Heritage, 5 Houst. /Del.) 220; Stokes V. United States, 157 U. S. 187, 39 L. ed. 667, j5 Sup. Ct. Eep. 617; Swales v. Grubbs, 126 Ind. 106, 25 N. E. 877. 23. What is considered as in evidence. A paper which was put in evidence by the adverse party,' or which, on being offered generally against him, was received without objection on his part,^ must be deemed proper in evi- dence for the purpose of using it as a standard of comparison, although it is irrelevant and should have been excluded if ob- jected to. 1 Smyth V. Caswell, 67 Tex. 567, 4 S. W. 848. 2 Miles V. Loomis, 75 N. Y. 288, 292, 31 Am. Rep. 470, affirming 10 Hun, 372. s. P., Hanley v. Gandy, 28 Tex. 213, 91 Am. Dec. 315. 24. Use of papers in the record. The signature of a party to an affidavit, pleading,* or other proceeding, used by him in the cause, may be used as a stand- ard of comparison against him, but is not evidence for that purpose in his favor.^ 1 Medway v. United States, C Ct. CI. 421 (a strong case; ruled, that the court of claims, like the jury, could compare a disputed signature with the genuine signature of the claimant to the petition in suit, where such comparison resulted adversely for the claimant) . 8 Springer v. Hall, 83 Mo. 693, 53 Am. Rep. 598 (held, reversible error to permit an expert and the jury to compare the signature disputed by defendant with the genuine signature of the defendant to his answer at the instance of the defendant, because this would encourage the manufacture of evidence for the occasion). Contra Thomas v. State, 103 Ind. 419, 2 N. E. 808 (held, no error for an expert to compare a disputed letter with a genuine affidavit of defend- 528 BRIEF ON FACTS. ant made for a change of venue in the case, and to give an opinion as to the genuineness of such letter, in defendant's behalf). 25. Use of irrelevant documents as standards. a. In general. — In some jurisdictions without statute,^ and in others by express statute,* any writing proved to the satisfac- tion of the court,* or admitted to be genuine, may be used as a standard of comparison; the opinion of experts may be taken on the comparison ; and the standards may be submitted for in- spection and comparison by the jury. 1 Tyler v. Todd, 36 Conn. 218 ; Burdick v. Hunt, 43 Ind. 381 ; Macomber v. Scott, 10 Kan. 335; Com. v. Andrews, 143 Mass. 23, 8 N. B. 643; State v. Thompson, 80 Me. 194, 13 Atl. 892; Morrison v. Porter, 35 Minn. 425, 59 Am. Rep. 331, 29 N. W. 54; Wilson v. Beauchamp, 50 Miss. 24; Yeomans v. Petty, 40 N. J. Eq. 495, 4 Atl. 631; State v. Hastings, 53 N. H. 452, 461 (dictum) ; Bell v. Brewster, 44 Ohio St. 690, 10 N. E. 679; Travis v. Brown, 43 Pa. 9, 82 Am. Dee. 540, dictum (but in Pennsylvania the opinions of experts are not re- ceived. See § 17 note 1, this title) ; Smyth v. Caswell, 67 Tex. 567, 4 S. W. 848; Kennedy v. Upshaw, 64 Tex. 411; Durnell v. Sow den, 5 Utah, 216, 14 Pac. 334; Adams v. Field, 21 Vt. 256; Rowell v. Fuller, 59 Vt. 688, 10 Atl. 853; Bridgman v. Corey, 62 Vt. 1, 20 Atl. 273; Moore v. Palmer, 14 Wash. 134, 44 Pac. 142. In Alabama experts accustomed to, and skilled in, the matter of handwrit- ing are competent to institute comparisons between writings of unquestioned genuineness and a writing the genuineness of which is disputed. But it is improper to submit to the inspection of the jury a letter which a witness denies having written, and the signa- ture of such witness thereupon written by him in the presence of the court, for comparison. Griffin v. State, 90 Ala. 596, 8 So. 670. The rule that writings to be used as a basis for comparison must be ad- mitted to be genuine by the person against whom they are sought to be used, or at least clearly proved to be so, applies as well to writings used on cross-examination as on direct. Gaunt v. Harkness, 53 Kan. 405, 36 Pac. 739. For notes reviewing conflicting authorities, see 62 L.E.A. 866, and 18 L.B.A.(N.S.) 520. 2 Mutual L. Ins. Co. v. Suiter, 131 N. Y. 557, 29 N. B. 822 {N. Y. Laws 1880, chap. 36, as amended by Laws 1888, chap. 555) ; Iowa Code, § 4620; State v. Calkins, 73 Iowa, 128, 34 N. W. 777; People v. Bibby, 91 Cal 470, 27 Pac. 781 ; St. Louis Nat. Bank v. Hoffman, 74 Mo. App. 203; Baxter v. Hamilton, 20 Mont. 327, 51 Pac. 265; First Nat. Bank v. Carson, 48 Neb. 763, 67 N. W. 779; Osmun v. Winters, HANDWEITIHG. 529 30 Or. 177, 46 Pac. 780; Munkers v. Farmers' & M. Ins. Co. 30 Or. 211, 46 Pac. 850; Powers v. McKenzie, 90 Tenn. 167, 16 S. W. 559. In Kentucky and Georgia there is such a statute (Ky. Code, p. 66; Act May 17, 1886, Ga. Civ. Code, § 4257). But it is further provided therein tliat tlie party proposing to use the papers as standards must give notice before trial, or before announcing ready for trial, of such intention, and give reasonable opportunity to examine them. Bogard V. Johnstone, 21 Ky. L. Rep. 965, 53 S. W. 651; Kelly v. Keese, 102 Ga. 700, 29 S. E. 591. And this notice was held necessary in Axson V. Belt, 103 Ga. 578, 30 S. E. 262, in the case of a plea filed by the party in another case, proposed to be used as standard. 1 In New Hampshire, however, the jury are to pass upon the standard of comparison. State v. Hastings, 53 N. H. 452, 461 {dictum, that papers for mere purpose of comparison with a disputed handwriting may be put in evidence; and it is for the jury first to determine the genuineness of such papers from the evidence, whether on admission of genuineness or opinion of one acquainted with the handwriting; and they are to determine whether the disputed writing is genuine, from all the evidence including that of experts making comparisons in court, and also from a comparison made by the jury themselves. Judgment reversed because incompetent evidence had been admitted to prove genuineness of the standard ) . b. Writing of third person. — This rule is not extended by im- plication to the writings of a third person to whom the party contesting the genuineness of the writing in question imputes it.^ But in Ifew York a recent statute extends the rule to such cases." 1 Peck V. Callaghan, 95 N. Y. 73 (held, no error to exclude specimens of handwriting of the person alleged to have forged the signature of a contested will, because no documents other than those in the hand- writing of the person whose signature the one in question purports to be could then be put in evidence, under N. Y. Laws 1880, chap, 36, authorizing a comparison by witnesses "of u, disputed writing with any writing proved to the satisfaction of the court to be gen- uine"). Contra: Koons v. State, 36 Ohio St. 195. (Here an expert was permitted to g've an opinion in behalf of the prosecution as to whether the alleged forged check and the confessedly genuine signa- ture of the accused on trial for forgery were in the same handwritin". That such comparison is proper seems to have been assumed without discussing the point; but the judgment was reversed on other grounds.) In Tennessee a, statute provides that in all the courts of that state com- parisons of disputed writing or signatures with any writing or signa- Abb. Facts — 34 530 BEIEF ON PACTS. tures proved to the satisfaction of the judge to be genuine shall he- permitted to be made by expert witnesses, and such writings or signa- tures, and the evidence of expert witnesses respecting the same, shall- be submitted to the court or jury as evidence of the genuineness or otherwise of the writing or signature in dispute. But this does not. authoiize comparisons with writings introduced for that purpose as the genuine writing of any person other than the reputed writer of the disputed paper. Franklin v. Franklin, 90 Tenn. 44, 16 S. W. 557.. 2N. Y. Laws 1888, chap. 555, p. 912. 26. What law controls. The state statute is not binding on the Federal courts.* 1 United States v. Jones, 10 Fed. 469 (held, that "the statute of the- state of New York, permitting a comparison of writings for the- purpose of determining handwriting, has no effect upon criminal proceedings in the courts of the United States." So, held, no error to exclude writing made in court for the purpose of comparison with disputed writing). In Whitford v. Clark County, 119 U. S. 522, 525, 30 L. ed. 500, 501, T Sup. Ct. Rep. 3UB, the court says: "When the statutes of the United! States make special provisions as to the competency or admissibility of testimony, they must be followed in the courts of the United States, and not the laws or the practice of the state in which the- court is held, when they are different," — citing cases. In Holmes v. Goldsmith, 147 U. S. 150, 37 L. ed. 118, 13 Sup. Ct. Rep. 288, a case on error to the circuit court of the United States for the- district of Oregon, it was held that the question whether evidence respecting handwriting may be given by a comparison, made by a skilled witness or by the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered, was governed by an Oregon statute. See also Richardson v. Green, 61 Fed. 423. 27. Disputed writing and standard to be produced before com- parison. The production of the original writing which is disputed is essential before the opinions of experts can be received.^ The production of the standard is equally essential.* Neither a let- ter-press copy,' nor a photograph,* is available as a substitute for comparison. (I state the rule as above in deference to the authorities below stated, but I think it needs qualification. HANDWEITING. 531 There is an Important difference of principle, not noticed in the authori- ties, between allowing counsel to use for comparison a substitute for the disputed writing, such as a photograph or letter-press copy, and allowing him to use a similar substitute for an irrelevant standard. The admission of secondary evidence of the disputed writing rests upon a good excuse for not producing the original. There can hardly be a good excuse for producing imitated instead of original standards, especially as relevancy is not required. And a party who is obliged to submit to having the disputed writing proved by an imitation, without producing the original, ought not thereby to be further de- prived of the right to give genuine and original standards of compari- son in evidence. In my opinion the true general rule is that he who relies on a facsimile of the original cannot object to comparison with genuine standards. But that he who wishes to disprove an alleged original cannot do, so with facsimile standards. The authorities are below.) 1 Spottiswood V. Weir, 66 Cal. 525, 6 Pac. 381 (held, reversible error to allow an expert to give an opinion upon the genuineness of a disputed writing by comparing a letter-press copy thereof with specimens admit- ted to be genuine. The court said: "This was not permissible under any rule with which we are acquainted. It is essential that the document whose genuineness is sought to be proved should itself be produced. When the disputed writing is produced, evidence resulting form a comparison of it with other proved or admitted writings is not regarded as evidence of the most satisfactory character, and by some courts is entirely excluded"). Contra: Koons v. State, 36 Ohio St. 195. (Here an expert had seen the alleged forged check several months before the trial of defendant for the forgery; but the prosecution after efforts to do so, were unable to produce the check at the trial. Held, that its presence was not in- dispensable to the competency of the expert in behalf of the prosecu- tion, to state whether the check, in his opininon, was in the same handwriting with a genuine signature of the accused shown to the expert at the trial. But judgment was reversed on other grounds.) «Hynes v. McDermott, 82 N. Y. 41, 49, 37 Am. Rep. 538 (held no error to refuse to allow an expert to give an opinion of the genuineness of a disputed writing by comparison merely with a photographic copy of an admittedly genuine writing, where the original standard was not produced. The court said: "An expert in handwriting, when speaking as a witness only from a comparison of handwriting, that is, with two pieces of it in juxtaposition under his eye, should have before him in court the writing to which he testifies, and the writings from which he testifies; else there can be no intelligent examination of him, either in chief or cross; nor can there be fair means of meet- ing his testimony by that of other witnesses." And as the correct- ness of the photograph was not testified to, the court held it was 532 BRIEF ON FACTS. proper to exclude such comparison. Tyler v. Todd, 36 Conn. 218 (dictum, that it is error to allow an expert to give an opinion as to genuineness of handwriting, based upon a comparison, out of court, of signatures not before the court ) . 3Com. V . Eastman, 1 Cush. 189, 217, 48 Am. Dec. 596 (held, reversible er- ror to permit an expert to give an opinion as to genuineness of a dis- puted writing based upon a comparison with letter-press copies of original letters as a standard of comparison. The court said. "Noth- ing but original signatures can be used as standards of comparison, by which to prove other signatures to be genuine" ) . 4Hynes v. McDermott, 82 N. Y. 41, 49, 37 Am. Rep. 538 ( where, how- ever, stress was laid on the fact that there was no proof of the accuracy of the photographs ) . Whether an accurate photograph proved to be accurate, can be received, is perhaps another question. In Tome v. Parkersburg Branch R. Co. 39 Md. 36, 17 Am. Rep. 540, it was held reversible error to allow an expert in handwriting (and photographer by profession) to produce in evidence photographic copies (both exact in size, and also magnified) of the disputed signa- ture, and also of confessedly genuine signatures already in evidence for other purposes, and to give an opinion as to genuineness from comparison of such photographic copies; for under the rule for prov- ing handwriting in Maryland there can be no comparison of originals, much less of photographic copies. For the rule that refusal to produce the original raises a presumption against the paper, see Sharon v. Hill, 26 Fed. 337. Mr. Stewart's argument in this case, with facsimile and magnified reproductions, has been printed. San. Fran. 106 pp. 28. Genuineness of standards, a question for the court. The genuineness of standards of comparison is a preliminary question for the court to determine.^ 1 Hall V. Van Vrankeen, 28 Hun, 403 (where the court said: "The suffi- ciency of fie proof which shall show that a paper is genuine so that it may be used for comparison must be also left to the trial judge," but "possibly to admit a paper without any evidence of its genuine- ness might be error") ; State v. Thompson, 80 Me. 194, 13 Atl. 892 (holding that his decision is final and conclusive, if there is any proper evidence to support it, unless clearly based on erroneous views of legal principles. Hence, held no error to admit an irrelevant standard for the sole purpose of comparison by experts, where two witnesses claiioing to have seen the person write, and to be acquainted with his writii'g, testified that the standard offered was in his hand- writing) ; Com. V. Coe, 115 Mass. 504; Costelo v. Crowell, 139 Mass. HANDWEITING. 533 690, 2 N. E. 698 (where the court said it was for the judge to de- termine "whether it is shown by clear testimony that it [standard] is the genuine handwriting of the party sought to be charged. Unless his finding is founded upon error of law, or upon evidence which is, as matter of law, insufficient to justify the finding, this court will not revise it") ; Rowell v. Fuller, 59 Vt. 688, 10 Atl. 853 (holding it reversible error for the judge to leave the question of genuineness of standards to the jury, as this is a preliminary question for the court upon the same rules of evidence as to any issue in the case — citing and disapproving the doctrine laid down in State v. Ward, 39 Vt. 225, as a dictum not essential to the decision. The court in that case said the question of genuineness of standards is a prelimi- nary one for the court, but in criminal cases the jury must also determine whether the standards of comparison are proved to be genuine beyond a reasonable doubt, before making comparisons with the disputed writings themselves; but held, that it was no error for experts to make the comparison before the papers were given to the jury to compare). In Greenebaum v. Bornhofen, 167 111. 640, 47 N. E. 857, it is held that the court, in determining the issue as to the genuineness of a signature in a trial without a, jury, should compare the signature in question with the admitted genuine signatures to other papers in evidence, although such papers were not expressly in- troduced for the purpose of comparison. Contra: State v. Hastings, 53 N. H. 452 {dictum, that the jury are first to determine from the evidence whether such specimens are genuine). 29. Bequisite authentication of standards of comparison. Although under the statute the judge may, on the question of the genuineness of a proposed standard of comparison, hear evidence of any kind that might be received as to a writing act- ually in iss-je, and the decision is in his discretion, yet, in gen- eral, sound discretion will not admit a standard unless there is direct evidence in its favor (such as evidence of acknowledg- ment, or admission or knowledge of handwriting, as distin- guished from comparison, and from opinions of experts found- ed on comparison), or unless the indirect evidence relied on is so clear that were it a question for the jury he could properly direct their finding on it.^ 1 This I understand to be the result of the authorities and the statute. Independent of the statute, the better opinion is that the discretion of the court should be exercised to require clear proof, and to refuse to try the collateral question on indirect or conjectural evidence. Under the statute such evidence is doubtless competent; but should rarely 634 BRIEF ON FACTS. be alone satisfactory. The statute was intended to aaopt the judicial rule in force in other jurisdictions allowing use of standards; but what ought to satisfy the judge under the statute is dependent on the same considerations as at common law. The following cases illustrate the principle laid down in the text: United States courts. — United States v. McMillan, 29 Fed. 247 (ruling that an expert should not compare disputed signatures with letters not belonging to the witness, nor in his custody, nor parts of the record, nor admitted to be genuine, and as to which the witness only swore to his belief of genuineness). Alabama.— White v. ToUiver, 110 Ala. 300, 20 So. 97 (to effect that testi- mony that witness has never seen the person write his name, and can- not say that he is acquainted with his handwriting; that the signa- ture to a letter and the handwriting in the body of it are like other writing he has seen purporting to be the signature of that person, — is insufficient as preliminary proof of handwriting). California. — Marshall v. Hancock, 80 Cal. 82, 22 Pac. 61 (holding that proof that a certain person, deceased, whose handwriting it is pro- posed to prove, was a justice of the peace, and that signatures to a docket were made by him, is sufficient to authorize admission of the docket for the sake of comparison of the handwriting of the signatures with that proposed to be proved). District of Columbia. — Keyser v. Pickrell, 4 App. D. 0. 198 (holding that one seeking to hold an executor liable on an indorsement of a note by his testator, the genuineness of which is disputed, who also exhibits in evidence certain letters and a will as having been written by testator, thereby admits the genuineness of the signatures thereto, and is precluded from objecting to their use for the purpose of com- parison of handwriting, on the ground that they are not in evidence in support of, or relevant to, any issue in the case ) . Georgia.— McVicker v. Conkle, 96 Ga. 584, 24 S. E. 239 (holding that the signature of a deceased person to an affidavit cannot be used on proof merely of the handwriting of the officer who attested the af- fidavit, where the statute imperatively requires that the genuineness of the instrument must be established before it can be used) ; Goza V. Browning, 96 Ga. 421, 23 S. E. 842 (that the genuineness of the signature of the grantor to a deed is sufficiently shown by evidence that such deed was thirty years old, and that the grantor surrendered possession thereunder to the purported grantee, who has remained in possession) ; Travelers' Ins. Co. v. Sheppard, 85 Ga. 751, 12 S. E. 18 (that it is not a valid objection to a document that a part of it was concealed from the witness, and torn off before the part shown was put in evidence). Indiana.— In Indiana it seemed that the standard must be admitted to be genuine. Chance v. Indianapolis & W. Gravel Road Co. 32 Ind. 472.. 474 (dictum, that "'comparison by experts must be confined to. other HANDWEITINa. 535 writings admitted to be genuine. No collateral issue will be permitted. If there is any dispute as to their authenticity, the comparison will not be permitted") ; Burdick v. Hunt, 43 Ind. 381. Iowa. — Winch v. Norman, 65 Iowa, 286, 21 N. W. 511 (holding it re- versible error to allow a document to go to the jury as a standard, where the only proof of its genuineness consists in comparison by experts with some other writing admitted to be genuine. The court says: "It appears to us that the genuineness of the writing made the basis of comparison, called sometimes the standard writing, should be proved by direct or positive evidence;" and approves of the state- ment in an early Iowa case, that such proof should be by the testi- mony of a witness who saw it written, or by the person's admission when offered by himself, or by some other positive proof) ; Sankey V. Cook, 82 Iowa, 125, 47 N. W. 1077 (to the effect that an opinion that handwriting is genuine, based on the witness's knowledge, does not make it admissible for comparison, under Iowa Code, § 3655, which provides that "evidence respecting handwriting may be given by comparison . . . with writings of the same person which are proyed to be genuine" ) . IMaine.— State v. Thompson, 80 Me. 194, i5 Atl. 892, quotes with apparent approval the language of the court in State v. Hastings, 53 N. H. 461, and ftowell v. Fuller, 59 Vt. 688, 10 Atl. 853, to the effect that, al- though great care should be taken that the standard be genuine, yet any competent evidence tending to prove that the paper is genuine is to be received, whether the evidence be in the nature of an admis- sion, or the opinion of a witness who knows his handwriting, or of any other kind whatever. Hence, held, sufficient proof of a standard, where two witnesses claiming to have seen the person write, and to be acquainted with his handwriting, testified that the offered standard was in his handwriting. Massachusetts. — ^Moody v. Eowell, 17 Pick. 490, 28 Am. Dec. 317 [dictum, that proof of genuineness of a standard "must be direct, to the fact of its having been actually written by the party, by one who saw him write it") ; Com. v. Eastman, 1 Cush. 189, 217, 48 Am. Dec. 596 {dictum, that a paper proposed as a standard cannot be "proved to be an original and a, genuine signature merely by the opinion of a witness that it is so; such opinion being derived solely from his general knowledge of the handwriting of the person whose signature it purports to be." "The handwriting used as a standard must first be established by clear and undoubted proof, that is, either by direct evidence of the signature or by some equivalent evidence" — citing Moody V. Eowell, 17 Pick. 490, 28 Am. Dec. 317; Bacon v. Williams, 13 Gray, 525, 527); Martin v. Maguire, 7 Gray, 177 (holding it not error to exclude a mortgage as a standard where the only proof -offered of the genuineness of the grantor's signature was proof of the landwriting of an absconding subscribing witness; for a standard 536 BEIEF ON FACTS. "must be unquestionably a, genuine paper, and that must be shown beyond a doubt"). But the two following cases relax somewhat the rule of these earlier Massachusetts cases: Costelo v. Crowell, 139 Mass. 590, 2 N. E. 698 (where it is held error to admit certain deeds and a discharge of a mortgage as standards, where an attesting witness testified that the body of the documents was in his handwrit- ing as attorney for the signer, and that, although he did not remem- ber seeing the documents signed, yet he knew he either saw them signed, or that the signer acknowledged the signature to be his, before the witness attested them. The court was of the opinion that, under the Massachusetts rule, the evidence "was sufficient to prove the gen- uineness of the signatures of the defendant which were offered as stand- ards") ; Com. V. Coe, 115 Mass. 504 (where it is held no error to admit the body of a promissory note as a standard, where the signa- ture was admitted to be genuine, and a witness for the prosecution testified [and it was admitted] that the note was delivered by the defendant to the witness, but there was nothing directly to show that the body of the note was genuine except the inference of fact drawn by the judge from the failure of the defense to offer any evi- dence in denial that the entire note was in the defendant's hand- writing, when within the knowledge and power of the defendant to thus deny, if the body of the note was not genuine ) . New York.— McKay v. Lasher, 50 Hun, 383, 3 N. Y. Supp. 352 (holding it no error to prove standards by persons familiar with the hand- writing; and that proof of their genuineness need not be an admission, nor by the direct evidence of one who saw the offered standards writ- ten; for, as there is nothing in the New York statute [Laws 1880, chap. 36] specifying the mode of proving them, they may be proved in the same manner as before the statute; and as the statute only requires them to be proved "to the satisfaction of the court," this "seems to put the matter exclusively in the judgment of the trial court, unless possibly in a case where there was an entire absence of evidence") ; Hall v. Van Vranken, 28 Hun, 493 (where it was held no error to admit a deed duly acknowledged, as a standard, without further proof of genuineness of the signature; for such acknowledg- ment was prima facie evidence of such genuineness, and sufficient; especially so here, in the absence of defendant's denial whose deed it purported to be, and who was present at the trial of this action upon a promissory note, the signature of which he disputed. The court said the judge is to pass upon the sufficiency of the evidence, but that "possibly to admit a paper without any evidence of its gen- uineness might be error." [Of course it would.] ) Clark v. Douglass, 5 App. Div. 547, 40 N. Y. Supp. 769 (that the proof required by the New York statute must be so clear that if it were one of the issues of the case a verdict should be directed in favor of the genuineness) ; People V. Dorthy, 50 App. Div. 44, 63 N. Y. Supp. 592 (that it was IIANDWEITING. 00 1 error to overrule an objection to testimony that in the witness's opin- ion a certain memorandum was in the handwriting of a certain per- son, when such opinion was formed by comparing the memorandum with other writings he thought were defendant's, where the paper on which the memorandum was written was not an exhibit in the case and tlie other writings introduced for comparison were not shown to have been genuine) ; People v. Flechter, 44 App. Div. 199, 60 N. Y. Supp. 777 (to the effect that an advertisement offering a reward for the return of stolen goods, written by an agent of the owner, and given to the owner for publication, was a, sufficiently au- thenticated standard for comparison of handwriting with u letter offering to return the goods for a reward, claimed to have been writ- ten by such agent, although such standard was not such as is men- tioned in Laws 1888, chap. 555) ; Sprague v. Sprague, 80 Hun, 285, 30 N. Y. Supp. 162 (to the effect that the testimony of a, witness, showing the circumstances, under which he received papers purport- ing to be signed by a deceased, leaving no doubt as to the genuine- ness of the signature, is a sufficient basis for their introductioi; in evidence upon the issue as to the genuineness of a. purported signa- ture) ; McKay v. Lasher, 121 N. Y. 477, 24 N. E. 711 (to the effect that under N. Y. Laws 1880, chap. 36, permitting comparison of a disputed handwriting with any writing proved to the satisfaction of the court to be genuine, there is no error in admitting for comparison signatures proved by persons who had on other occasions seen the writing of the person whose signature the one in controversy purport- ed to be, and who had no doubt upon inspection that the signatures presented to them were genuine, of which fact the court was sat- isfied) . Ohio.— Bell v. Brewster, 44 Ohio St. 690, 10 N. E. 679 (holding it no error to admit as a, genuine standard a document purporting or proved to be thirty years old, because when such a document is "pro- duced from its proper custody, it is presumed that the signature, and every other part of such document which purports to be in the handwriting of any particular person, is in that person's handwrit- ing "without other proof of their authenticity; and that the proper repository or custody of such papers is the place where papers of its kind are usually deposited ) . Oklahoma. — Archer v. United States, 9 Okla. 569, 60 Pac. 268 (that the genuineness of the writing or signature made the basis of comparison, and sometimes called the standard writing, must be proved by direct or positive evidence, and cannot be established by comparison). Pennsylvania. — Brant v. Dennison, 1 Sadler (Pa.) 60, 5 Atl. 869 (where it was held no error to exclude receipts as a standard, where the only proof of genuineness of signature thereto was the testimony of a witness, without personal knowledge of the person's handwriting, that he sent the receipts [by mail] in blank to such person to be 558 EEIEF ON FACTS. signed, and that they were returned by another person by mail) ; Fullam V. Rose, ]81 Pa. 138, 37 Atl. 197 (to the effect that testimony that the name signed to a cheek looks like the purported maker's signature is insufficient to admit the check as a test paper for compar- ison with other alleged signatures of the purported maker, in the absence of any evidence of its genuineness). South Carolina.— State v. Ezekiel, 33 S. C. 115, 11 S. E. 635 (holding that papers are not admissible in evidence for comparison with an alleged forged instrument, where their genuineness is not admitted, acknowledged, or established by an affirmative testimony, merely be- cause the defendant does not deny their genuineness). Texas. — Long v. State, 10 Tex. App. 186 (where a witness adopted as a standard a letter found addressed to himself purporting to come from a penitentiary convict, the authorship of which was subsequently ac- knowledged by such convict.- — Held, error to admit it as a, standard; for in Texas a felon is incompetent as a witness, and therefore no admission or fact stated by such felon could be detailed or used as evidence against u third person for any purpose. Judgment reversed on this and other grounds) ; Jester v. Steiner, 86 Tex. 415, 25 S. W. 411 (to the effect that the genuineness of a letter offered in evidence is not sufficiently proved to make it admissible for comparison of handwriting with the signature to a certain deed, by the testimony of a witness who did not see it written or know the writer, and who had not seen him write, but merely testified from handwriting that purported to be that of the writer). As to sufficiency of proof of genuineness of handwriting, see note in 63 L.R.A. 428. 30. Comparison by jury or referee. Standards of comparison properly receivea, either under the judicial, or the statutory, rule, may be compared by the jury,^ ■or the referee,^ with the handwriting in question, whether wit- nesses have made comparison or not.' IVan Wyck v. Mcintosh, 14 N. Y. 439, approved and followed in Wil- liams V. Conger, 125 U. S. 414, 31 L. ed. 786, 8 Sup. Ct. Rep. 933, and in Pontius v. People, 82 N". Y. 339, affirming 21 Hun, 328; United States V. Chamberlain, 12 Blatchf. 390, Fed. Cas. No. 14,778; Rowell V. Fuller, 59 Vt. 688, 10 Atl. 853; State v. Clinton, -67 Mo. 380, 29 Am. Rep. 506 {dictum) ; Rose v. First Nat. Bank, 91 Mo. 399, 00 Am. Rep. 258, 3 S. W. 876 {dictum to same effect) ; Eve v. Saylor, 19 Ky. L. Rep. 1697, 44 S. W. 355. ■zHunt V. Lawless, 7 Abb. N. C. 113, affirmed without opinion in 15 Jones & S. 540. HANDWEITING. 539 SMedway v. United States, 6 Ct. CI. 421; Moore v. United States, 91 U. S. 270, 23 L. ed. 34G; Cora. v. Andrews, 143 Mass. 23, 8 N. E. 643; Travis v. Brown, 43 Pa. 9, 82 Am. Dec. 540 {dictum). 31. Taking to the jury room. Standards of comparison, properly received under either rule, are documents in evidence within the rule allowing the court to permit such documents to be taken out by the jury.^ 1 Hardy v. Norton, 66 Barb. 527 (wliere it was held discretionary witli the court, and not error, to allow the jury, upon retiring to consider their verdict, to take the writing in dispute, and other genuine writ- ings already in evidence for other purposes, to the jury room for the purpose of comparison of handwriting. [N. Y. Laws 1880, chap. 36, now allows irrelevant standards of comparison]); Com. v. An- drews, 143 Mass. 23, 8 N. E. 643; State v. Scott, 45 Mo. 302. In Means v. Means, 7 Rich. L. 533, it is held to be a matter in the discretion of the court. Contra Re Foster, 34 Mich. 21; Chance v. Indianapolis & W. Gravel Road Co. 32 Ind. 472. In Howell v. Hartford F. Ins. Co. 6 Biss. 163, Fed. Cas. No. 6,779, reasons are given why it is thought the comparison should be made only in open court; and it was held no ground for a new trial to refuse to permit the jury to take out papers for that purpose. In Cox v. Straisser, 62 111. 383, a document used for com- parison, by consent, was held not a paper "read in evidence," within the meaning of a statute of Illinois allowing such papers to go to the jury room. As to when documents may be taken out, see Trial Brief for Civil Issues, 3d ed. p. 717 Criminal Trial Brief. V. Photogeaphs, Letter-Press Copies, Magnifying Glass, AND SUPEE-IIIPOSITION. 32. Photographic copies. Photographic copies and photographic magnifiea copies of the disputed writing, and of such genuine writings as are avail- able by way of comparison, may be used as aids to assist the jury in their conclusions.^ But an expert should not be permitted to testify from such copies alone, without the presence of the originals, — at least in the absence of evidence of the exactness of the photographing.* 1 United States courts.— United States v. Ortiz, 176 U. S. 422, 44 L. ed. 640 BEIBF ON FACTS. 529, 20 Sup. Ct. Eep. 466 (to the effect that enlarged photographic copies of an alleged forged signature offered as a standard of compari- son are admissible in evidence on proof by the photographer of the ac- curacy of the method pursued, and the results obtained by him in making the copies). In Leathers v. Salvor Wrecking & Transp. Co. 2 Woods, 680, Fed. Cas. No. 8,164, it was ruled that where, as in that case the original documents necessary for the decision of the ease were on file in the United States War Department, and could not well be removed from the files without public detriment, it was proper to introduce photographic copies as the best secondary evidence thereof on "an authentication of their genuineness in the usual way by proof of handwriting." s. p., Luco v. United States, 23 How. 515, 16 L. ed. 545. In United States v. Messman, 1 Cent. L. J. 121, it was ruled by Blatchford, J., that upon a defense for forgery photographic copies of the originals alleged to be forged cannot be introduced in evidence where the originals can be produced, and the trial was post- poned in order that the originals might be procured. Illinois. — Duffin v. People, 107 111. 113, 47 Am. Eep. 431 {dictum that the testimony of an artist or expert may be required to prove the process of taking a photograph of a document where it is material to show that the photographic copy is an exact copy of the original in respect to form, shading, and coloring, but holding it no error to admit a photograph copy of a promissory note without proof of the process of taking, where the object was not to prove handwriting, but merely to prove the words of the original, written in rapidly fading ink). Maryland.— Tome v. Parkersburg Branch R. Co. 39 Md. 36, 17 Am. Rep. 540 (photographs excluded on the ground that such evidence is only secondary, and also on the ground that there can be no comparison of originals by experts in Maryland, much less of photographic copies). Massachusetts. — Marcy v. Barnes, 16 Gray, 161, 77 Am. Dee. 405 (an action upon promissory notes in which the genuineness of the maker's signature being in issue, magnified photographic copies of genuine signatures of defendant, and of the disputed signature having first been proved to be accurate, were admitted. Held, proper. It was similar to an examination with a. magnifying glass. Merrick, J., said: "Under proper precautions in relation to the preliminary proof as to the exactness and accuracy of the copies produced by the art of the photographer we are unable to perceive any valid objection to the use of such prepared representations of original and genuine sig- natures as evidence competent to be considered and weighed by the jury"). Michigan. — In Re Foster, 34 Mich. 21, it was held no error to refuse to permit the contestants to furnish the jury with photographic copies of the contested will, where the original was in court, although the HANDWRITIJSTG. 541 court said that if the photographs had been given with such precau- tions as to secure their identity and correctness it might not have been error. Missouri. — Geer v. Missouri Lumber & Min. Co. 134 Mo. 85, 34 S. W. 1099 (holding that photolithographic copies of certain affidavits, with the signatures of the affiants thereto, are inadmissible for the purpose of comparison, without further preliminary proof that the copy is exact and accurate in all respects, than a certificate that the copy is of the same size, and is "a true and literal exemplification of the original" ) . New York. — Frank v. Chemical Nat. Bank, 5 Jones & S. 26, 34 (dictum. that they may be used). But in Taylor Will Case, 10 Abb. Pr. N. S. 300, surrogate Hutchings reviewed at length defects of photographic copies, and held that photographic copies of the disputed, and of genuine, signatures are inadmissible to aid an expert in giving his opinion based on comparison as to the genuineness of the disputed signature, where all of the originals are present in court, because too many collateral issues, as to the accuracy of the photographs, etc., would be involved. Texas. — Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Kep. 315 (an action on promissory notes against the personal representatives of the de- ceased maker, in which, the genuineness of handwriting being the issue, protographic copies of the instruments sued on were introduced in evidence. The artist taking them testified to their accuracy. Held, reversible error to admit them for the reason that photographic copies of instruments sued on can only be used as secondary evidence, and it did not appear that the originals might not have been produced) ; Buzard v. McAnulty, 77 Tex. 438, 14 S. W. 138 (holding that a photo- graphic copy of an instrument read in evidence without objection, as an exhibit, there being no evidence as to how the copy was taken, or that it was an exact reproduction of the original, and it not being shown that the original could not have been produced, — cannot be used for the purpose of proving a signature by comparison) ; Milling- ton v. Millington, — Tex. Civ. App. — , 25 S. W. 320 (holding that the comparison by the trial judge in a case tried without a jury of a writing the genuineness of which is in issue, with one proved to be genuine, is not extrajudicial, although testimony of experts has been given upon the subject, their opinion not being conclusive upon the question) . Vermont. — Rowell v. Fuller, 59 Vt. 688, 10 Atl. 853 {dictum, that it is proper to use photographs of the dififerent signatures; for "enlarged copies of a disputed signature or writing and of those used as com- parisons may be of great aid to a jury in comparing and examining different specimens of one's handwriting. Characteristics of it may be brought out and made clear by the aid of a photograph or mai^ni- fying glass, which would not be discernible by the naked eye. As 542 BRIEF ON FACTS. well object to the use of an eye-glass by one whose vision is de- fective"). Washington. — Crane v. Dexter, H. & Co. 5 Wash. 479, 32 Pac. 223 (to the effect that photographs of a disputed signature to a check, and of a large number of genuine signatures on paper close together, are properly rejected as immaterial and irrelevant, where the disputed signature as well as concededly genuine ones, are present in court) . For a more comprehensive discussion of the question, see notes in 35 L.R.A. 812 and 63 L.R.A. 438. 2Hynes v. McDermott, 82 N. Y. 41; 50, 37 Am. Rep. 538, affirming 7 Abb. N. C. 98 (held, no error to refuse to permit an expert to testify as to genuineness of a signature by comparison in court with only photographic copies of absent genuine documents, where there is no evidence as to the manner of taking or accuracy of such copies) ; People V. Mooney, 132 Cal. 13, 63 Pac. 1070. 33. Letter-press copies. Impressions of writings produced by means of a press, or duplicate copies made by a machine, are not admissible as stand- ards of comparison,' but a press copy of a letter, although in- competent as a means of comparison by which to judge the char- acteristics of the handwriting which is in dispute, may retain enough of its original character to be identified by a witness as to the handwriting of the author, when its own genuineness is called in question.* ICom. V. Eastman, 1 Cush. 189, 48 Am. Dec. 596; Cohen v. Teller, 93 Pa. 123. 2 Com. V. Jeffries, 7 Allen, 548, 83 Am. Dec. 712. 34. Use of magnifying glass. A magnifying-glass, proved correct by an expert, may be used by a referee to determine whether checks are forged, the referee occupying the place of a jury.' 1 Frank v. Chemical Nat. Bank, 13 Jones & S. 452, affirmed, without pass- ing upon this point, in 84 N. Y. 209, 38 Am. Rep. 501 (held, no error for the referee to admit such glass in evidence, and to thus use the same after an oculist had testified that the glass was correct and magnified four times). In Baker v. Stucke, 18 Chicago Legal News, 306, it was held, in effect, that where it is alleged that erasures have been made, any man with ordinary information, and accustomed to examine things through a microscope, is competent to testify as to HANDWEITING. 543 his opinion thereon from such an examination. The subject of "Mi- croscopic Experts in Writing" is discussed in the New Jersey Law Journal of July, 1880. 35. Tracing and super-imposition The perfect correspondence of the disputed signature with a genuine one when super-imposed against the light is proof of simulation.* 1 Hunt V. Lawless, 7 Abb. N. C. 113, ex-Judge Fancher as referee affirmed on his opinion in 15 Jones & S. 540. It seems that such proof is conclusive, and would require an instruction to the jury to that effect. VI. ClRCtTMSTANTIAL EVIDENCE AND ADMISSIONS. 36. Peculiar usages of language. Writings not relevant to the cause may be received, irrespec- tive of the rules as to standards of comparison, when offered, not for the purpose of comparing handwriting as such, but for the purpose of showing identical or dissimilar usages of language, such as characteristic mistakes in spelling.* 1 United States v. Chamberlain, 12 Blatchf. 390, Fed. Cas. No. 14,778 (ruled, upon trial for depositing scurrilous postal cards in the mail, that it was competent to prove other writings of the defendant con- taining characteristic instances of misspelling identical with such errors in the said cards to connect the defendant with them ) ; Sprouse V. Com. 10 Va. L. J. 181 (held, no error to admit evidence that de- fendant, charged with forgery, was asked by the magistrate before whom he was first brought, to write a certain word occurring in the forged document, and that, without threat or promise, he wrote and misspelled the word precisely as it was misspelled in the document). Compare State v. Miller, 47 Wis. 530, 3 N. W. 31, to the contrary, but the court only considered the question with reference to comparison of handwriting, and the doctrine of the above case in Blatchford's re- port does not seem to have been called to their attention. 37. Aptitude to imitate. In a conflict of testimony as to whether one person had forged or imitated the handwriting of another, it is competent 544 BEIETT ON FACTS. to show that the former had scrutinized and commented on pe- culiarities in the manner of the latter's writing.^ 1 Pontius V. People, 82 N. Y. 339, affirming 21 Hun, 328 (so held in a criminal case, where forgery was relied on, as tending to show motive). Compare Costelo v. Crowell, 139 Mass. 588, 2 N. E. 698 (where it was held no error upon an issue of forgery, to reject evidence that the plaintiff had committed similar forgeries, or that he had the skill, etc., to enable him to forge the note in suit). 38. Opportunity. Evidence of opportunity tending to show an hypothesis of fabrication suggested by the evidence may have been the fact is competent.* 1 Brant v. Dennison, 1 Sadler (Pa.) 60, 5 Atl. 869 (assignment bearing indications that it was written over a pre-existing signature. Held, competent to shpw that he whose name was affixed was in the habit of writing his name on pieces of paper, and leaving them about) ; State V. Hastings, 86 N. C. 596 (not error to receive, as pointing to one accused of a forgery, evidence that he had a genuine instrument, of which the false one was a reproduction, — even though of itself Insufficient to sustain conviction). 39. Condition of writer. The condition- of the alleged writer at the time of the alleged writing may be shown by either side, on the question whether the writing is genuine or not.* 1 People V. Parker, 67 Mich. 222, 34 N. W. 720 {dictum as to intoxica- tion). See also Taylor Will Case, 10 Abb. Pr. N. S. 300, 312, 313, where the various circumstances and conditions affecting handwriting are dis- cussed, such as the state of the bodily health, the natural, or rheu- matic, or neuralgic, or gouty, or other abnormal condition of the parts of the body used in writing, the mental condition of the writer, as affected in various ways, whether by grief, anger, momentary vexa- tions of life, pressure of business, haste or deliberation induced by the solemnity of the occasion (as the act of signing a will), or the physi- cal circumstances surrounding the writer, such as the difference be- tween sitting and standing in writing, the height of the table, the flexibility and peculiar character of the pen or quill, the kind of ink, the quality of paper, ruled or unruled, sized or unsized, the substance supporting the paper, whether paper, wood, cloth, or marble, etc. HEALTH AND DISEASE- ''^'^ 40. Admission of such an instrument. In a conflict of testimony as to whether a signature "was gen- uine, it is competent to prove that the alleged signer had admit- ted in conversation having made a note of a specified descrip- tion, vs^hich corresponds to the instrument in question.* 1 Bardin v. Stevenson, 75 N. Y. 164, 167. As to limitations of evidence to handwriting, see note in 64 L.II.A. 303. HEALTH AND DISEASE. " 1. Direct testimony by person affected. 2. Matter of observation. 3. Expert testimony. 4. Disease of animals. For cognate topics, see Ability; Autopst; Cause; Condition; Feeunqs; Intoxication. And as to inspection of person. Civil Trial Brief (3d ed.) p. 390; Criminal Trial Brief; and, as to medical books. Civil Trial Brief (3d ed.) pp. 424, 629. 1. Direct testimony by person affected. A person may testify as to the condition of his health before an injury, and afterward, as against an objection that no facts were proved upon which to base his opinion.* IWest Chicago Street R. Co. v. Carr, 170 111. 478, 48 N. E. 992. The question does not call for an opinion, but for facts which may be stated. 2. Matter of observation. A witness, having had adequate opportunities of observation, may testify whether a person was sick or well,* and describe his Abb. Facts — 35. 546 BEIEF ON FACTS. general physical condition in respect to health,^ and state symp- toms discernible by a nonexpert; ^ but cannot, unless an expert, testify to the nature or character of a disease.* ISTor can a non- expert testify as to physical condition in respect to health, based on what he has been told by others, or state his conclusion from such information.* iHigbie v. Guardian Mut. L. Ins. Co. 53 N. Y. 603, affirming 60 Barb. 462; Rawls v. American Mut. L. Ins. Co. 27 N. Y. 282, 84 Am. Dec. 280, affirming 36 Barb. 357 (allowing testimony to good health and sound constitution), s. P. Smalley v. Appleton, 70 Wis. 340, 35 N. W. 729; Com. v. Sturtivant, 117 Mass. 122, 134, 19 Am. Eep. 401, citing Willis V. Quimby, 31 N. H. 485; Baltimore & L. Turnp. Co. v. Cassell, 66 Md. 419, 59 Am. Rep. 175, 7 Atl. 805; Cleveland, C. C. & St. L. Er^Co. V. Gray, 148 Ind. 266, 46 N. E. 675; Billings v. Metropolitan L. Ins. Co. 70 Vt. 477, 41 Atl. 516 (to the effect that the witness may testify that a person was in "sound health" at a, specified time) ; Robinson v. Exempt Fire Co. 303 Cal. 1, 24 L.R.A. 715, 36 Pac. 955. 2 Price V. Richmond & D. R. Co. 38 S. C. 199, 17 S. E. 732; Kostelecky V. Scherhart, 99 Iowa, 120, 68 N. W. 591; Keller v. Gilman, 93 Wis. 9, 66 N. W. 800 (dictum-). In Carthage Turnp. Co. v. Andrews, 102 Ind. 138, 52 Am. Eep. 653, 1 N. E. 364, such testimony was held com- petent, provided the witness stated the facts observed, before stating his opinion; but to omit to do so was held unavailing for want of objection below. The more prevalent view is that such testimony from a nonexpert is received, not as matter of opinion based on facts to be stated, but as stating a collective fact depending upon the observation of minutia; not capable of being set before the jury with the effect that they prop- erly produce on an observer. 3 United Brethren Mut. Aid Soc. v. O'Hara, 120 Pa. 250, 13 Atl. 932 (error to exclude question whether witness had observed the person's shortness of breath; but not error to exclude testimony that such per- son had asthma) . 4Grattan v. Metropolitan L. Ins. Co. 80 N. Y. 281, 36 Am. Rep. 617, with note; United Brethren Mut. Aid Soc. v. O'Hara, 120 Pa. 256, 13 Atl. 932. Compare Duntzy v. Van Buren, 5 Hun, 648 (holding that wife may be asked whether her husband had a. rupture, the fact not resting in opinion nor involving skill or science) ; and Owens v. Kansas City, St. J. & C. B. R. Co. 95 Mo. 169, 8 S. W. 350 (party may testify to his own nerves being paralyzed). 5 Tenney v. Harvey, 63 Vt. 520, 22 Atl. 659. 3. Expert testimony. Medical experts may give an opinion as to when and where HEALTH AND DISEASE. 547 a person contracted a disease, on a hypothetical question stating facts testified to by such person, and including substantially all of such testimony.'' Or if they have actual knowledge of the physical condition of the person, they may testify as to his condition as to health, without the question being put in hy- pothetical form.^ iKliegel v. Aitken, 94 Wis. 432, 35 L.R.A. 249, 69 N. W. 67. SClegg V. Metropolitan Street R. Co. 1 App. Div. 207, 37 N. Y. Supp. 130. In Illinois C. R. Co. v. Griffin, 25 C. C. A. 413, 53 U. S. App. 22, 80 Fed. 278, a witness was permitted to answer the question whether he had seen sufficient of the person since the trial commenced to be able to state whether there was or was not a certain condition existent; the court saying that if the question contained phrases of doubtful meaning, it was part of a cross-examination to clear away those doubts. 4. Disease of animals. An ordinary witness cannot testify as to the cause of a dis- ease in a horse ; ^ but may testify to facts observed by him.* Long experience in the care of horses is, however, sufiicient to qualify a witness as to such diseases, without having made a business of treating them.' 1 Russell V. Cruttenden, 53 Conn. 564, 4 Atl. 267. 2 Harris v. Panama R. Co. 4 Jones & S. 373, 378, affirmed, without dis- cussing this point, in 58 N. Y. 660 (holding that the mate of a vessel on which a horse was carried, having testified that the horse was sick, might be asked if he observed any alteration afterward). S Johnson v. Moffett, 19 Mo. App. 159; Slater v. Wilcox, 57 Barb. 604; Burden v. Pratt, 1 Thomp. & C. 554; Pierson v. Hoag, 47 Barb. 243. (An expert may be asked, "What is the best opinion by the best med- ical authority?") 548 BEIEF ON FACTS. HEARmG. 1. Direct testimony as to conversation. 2. As to sounds. Compare Ability; Negative; Possibilitt. 1. Direct testimony as to conversation. A witness may testify that a conversation occurred within the hearing of another person ; ' but cannot give an opinion that such other person must have heard it.* 1 Raymond v. Glover, 122 Cal. 471, 55 Pac. 398; Criminal Trial Brief. 8 People V. Holfelder, 5 N. Y. Crim. Rep. 179 (reversing judgment because an officer testifying to the silence of the accused when an incriminating statement was made in his presence was allowed to testify that the accused must have heard it). But in Raymond v. Glover, 122 Cal. 471, 55 Pac. 398, testimony that a person seemed to be giving attention to the conversation was allowed to go in. 2. As to sounds. A witness may also testify directly to hearing a sound, with which she is so familiar as to be able to state its source, cause, or origin as a fact, and not as a mere matter of opinion.* 1 Thus, a "witness living in a house opposite a, depression in the street which she had seen may testify that she heard wagons going into the depression at night, since such evidence is that of the senses, and not a mere conclusion. Grundy v. Janesville, 84 Wis. 574, 54 N. W. 1085. HOBSE POWEE. EOESE POWEE. 549 1. Comparison. 2. Tables. For cognate topics, see Capacity; Condition; Consteuction. 1. Comparison. The power of an engine with which plaintiff had tried to run his mill, as compared with that of three water wheels of known power by which the mill had been run, may be shown by wit- nesses who have been engaged in operating the mill, and rec- ognize the engine in question.^ 1 Blackmore v. Fairbanks, M. & Co. 79 Iowa, 282, 44 N. W. 548. 2. Tables. The number of horse power obtained from a given quantity of water may be shown by an expert whose information comes from Leffel's Tables, those tables being testified to be ordinarily iised by millwrights, and by all of them considered as accurate.* 1 Garwood v. New York C. & H. K. R. Co. 45 Hun, 128. Expert testimony as to which rating is meant in an advertisement, not competent. Harrington t. Smith, 138 Mass. 92. BEIEF ON FACTS. IDENTITY. 1. Inspection in court. 2. Pointing out person without naming him. 3. Direct testimony. a. In general. b. Identifying from voice. c. Uncertainty. 4. Photographs. 5. Answering to name. 6. Slight evidence. 7. Name as evidence of identity. 8. Oral evidence. 9. Commingled assets. 10. Rebuttal. a. Testing witness. b. Inspection and experiment c. Existence of a "double." d. Name. For cognate topics, see Cause; Condition; Cobbobobatioit; Misnomeb; Name; Opinion. 1. Inspection in court. On the trial of an issue involving the identity of a person, the court may allow him to be brought before the jury in order that a witness may look upon him and testify.* And a party summoned as a witness, though not sworn, may, on request of his adversary, be required to uncover her face to permit a witness on the stand to identify her.* 1 Atty. Gen. v. Fadden, 1 Price, 403 (where habeas corpus ad testificandum was allowed, to bring him up). As to privilege against criminating one's self, see Criminal Trial Brief. Compelling accused to exhibit himself to determine, see note in 28 L.R.A. 699. 2 Rice V. Rice, — N. J. Eq. — , 19 Atl. 736. This for the purpose of identification only, however; whether he may be required to do some act in or out of court by which he will be fur- nishing or giving testimony against himself is another question. 2. Pointing out person without naming him. The act of a witness in pointing out to the j jury the person to IDENTITY. 551 wHom his testimony refers, though without naming him, is com- petent evidence of his identity.^ Mistake in attempting such identification may be corrected and explained by the witness.^ If a party refuses to stand up in court to be identified, the failure of the witness to identify him does not entitle him to have the testimony of the witness against him stricken out.* 1 Com. V. Whitman, 121 Mass. 361, s. P., Sylvester v. State, 71 Ala. 17 (dying declarations; identifying by pointing out without naming, competent) . 2 People V. Foley, 27 N. Y. Week. Dig. 217. 3 Walsh V. People, 13 N. Y. Week. Dig. 570, affirmed in 88 N. Y. 458, without discussing this point. 3. Direct testimony. a. In general. — A witness may testify directly to the identity of a person or thing seen by him at different times ; ^ but not to the fact of the identity of a person or thing with the one intend- ed by a description given out of court by another person ^ (ex- cept in the case of lands *), for this would be matter of opinion. Nor is testimony that a third person identified the subject competent, except where it is made so by being part of the res gestw.* 1 Abbott, Tr. Ev. 2d ed. 129, 787; Com. v. Sturtivant, 117 Mass. 122, 19 Am. Kep. 401; State v. Dickson, 78 Mo. 438; Brotherton v. People, 75 N. Y. 159, affirming 14 Hun, 486 (identity of a person disguised) ; J. I. Case Threshing Mach. Co. v. Stein, 133 111. App. 169. And if the subject be one for expert testimony, a witness so qualified to speak may testify. Askew v. People, 23 Colo. 446, 48 Pac. 524. But a witness cannot testify that he believes a certain person was the identical person he I'cpresented himself to be. McCamant v. Roberts, 80 Tex. 316, 327, 15 S. W. 580, 1054. 2 Henze v. People, 82 N. Y. 611 (question whether cloth found with the prisoner was that described in the indictment, not competent) ; Whize- nant v. State, 71 Ala. 383 (reversible error to receive testimony that the oxen witness had seen corresponded with unsworn description given him of stolen oxen). * Whyland v. Weaver, 67 Barb. 116. (Any witness, acquainted with lands and the adjoining premises, may testify whether the premises de- scribed in one instrument are part of those described in another). 4Hopt V. Utah, 110 U. S. 574, 28 L. ed. 262, 4 Sup. Ct. Rep. 202 (testi- mony of surgeon who made a post mortem that the body was identi- 552 BEIEB' ON FACTS. fled by a, third person) ; Felder v. State, 23 Tex. App. 477, 59 Am, Kep. 777, 5 S. W. 145 (testimony that someone in the crowd pointed out a person whom witness had just met about two doors from the place of the shooting, as the one who had done the shooting). Compare Jordan v. Com. 25 Gratt. 943. Here evidence was received that the victim of the robbery, immediately, as part of the res gestce, de- scribed the robber to the witness, who thereupon pursued and caught the accused, who corresponded to the description. Approved in Merkle v. Bennington Twp. 58 Mich. 157, 55 Am. Eep. 666, 24 N. W. 776, 778. And see People v. Mead, 50 Mich. 228, 15 N. W. 95 ; People v. Cox, 83 N. Y. 610, affirming 21 Hun, 47 ; Truitt v. State, 8 Tex. App. 148; Tyler v. State, 11 Tex. App. 388. h. Identifying from Voice. — A witness may be permitted to identify a person solely from having heard his voice, and such testimony will be admissible and legitimate to establish identity.^ IMack v. State, 54 Fla. 55, 13 L.R.A.{N.S.) 373, 44 So. 706, 14 Ann. Cas. 78; Com. v. Kelly, 186 Mass. 403, 71 N. E. 807; State v. Herbert, 63 Kan. 516, 66 Pac. 235; Stepp v. State, 31 Tex. Crim. Rep. 349, 20 S. W. 753; People v. Willett, 92 N. Y. 29; State v. Howard, 92 N. C. 772. Testimony of a witness who had stated that a voice heard by him a few minutes after a homicide had been committed "sounded" like the voice of the defendant is admissible as tending to prove the identity of the accused. Deal v. State, 140 Ind. 354, 39 N. E. 930. And the mere fact that a witness had made a, mistake in the voice of another person upon a former occasion was held, in State v. Hurst, 23 Mont. 488, 59 Pae. 911, not competent as tending in any way to show that her observation was at fault at another time, under con- ditions which may have been totally different. See other cases in note in 13 L.R.A. (N.S.) 373. c. Uncertainty. — If the impression of the .witness is based on personal knowledge or observation, lack of positiveness in tes- tifying to identity does not alone render the testimony incom- petent, but goes only to its weight.^ 1 People v. Rolfe, 61 Cal. 540 (robbery; as to identity of accused, witness expressed belief); State v. Babb, 76 Mo. 501 (larceny; identity of goods) ; King v. New York C. & H. R. R. Co. 72 N. Y. 607 (holding that it was not error to allow the witness to be asked, Have you any IDENTITY. 553 doubt whether this is the same?); State v. Howard, 118 Mo. 127, 24 S. W. 41 (murder; identity of accused) ; White v. Van Horn, 159 U. S. 3, 40 L. ed. 55, 15 Sup. Ct. Rep. 1027 (identity of document). For other cases see note to Spotten v. Keeler, 22 Abb. N. C. 105. Contra Compare People v. Williams, 29 Hun, 522, 17 N. Y. Week. Dig. 356 (holding that a witness should not be allowed in the first in- stance, as evidence in chief, to state "impressions" or "thoughts" in respect to the identity of a person, but only knowledge, recollection, or memory of facts), s. p., Rich v. Jones, 9 Cush. 329 (where witness only "supposed" it was the same thing). And that a witness cannot testify as to his belief as to the identity of certain persons whom he saw on a given occasion, where the belief is based simply on the fact that one of the persons whom he saw was taller than the other, see Phoenix Ins. Co. v. Padgitt, — Tex. Civ. App. — , 42 S. W. 800. For interesting reviews of questions of mistaken identity, see 2 Grim. L. y. 287, 1 Crim. L. Mag. 1, 10 Crim. L. Mag. 725, and Ram on Facts. 4. Photographs. Photographs are admissible for the purpose of interrogating a witness as to the identity of one absent or deceased.^ IRuloff v. People, 45 N. Y. 213 (identity of person found drowned); Marion v. State, 20 Neb. 233, 57 Am. Rep. 825, 29 N. W. 911 (photo- graph of deceased taken before his death. The court says, although of little or no service in identifying the remains, it might be of im- portance in identifying the person last seen with the accused) ; Wash- ington L. Ins. Co. V. Schaible, 1 W. N. C. 369 (colored photograph of the insured) ; Udderzook v. Com. 76 Pa. 340 (photograph of the de- ceased received to aid identification of remains) ; Luke v. Calhoun County, 52 Ala. 115 (holding it error to exclude photograph taken in life, to identify the deceased as plaintiff's husband). See fully on this question cases reviewed in note to Dederichs v. Salt Lake City R. Co. (Utah) 35 L.R.A. 802. In Wilcox V. Wilcox, 46 Hun, 32, it was held that copies of photographs shown to be correct may be used equally as original photographs for this purpose. In a criminal action, photographs of defendant and his confederates, taken four years previously, which were sufficiently verified, and had been shown to witnesses soon after the photographs were taken, were prop- erly used for the purpose of identifying the defendant and his con- federates. Considine v. United States, 50 C. C. A. 272, 112 Fed. 342. See also Shaffer v. United States, 24 App. D. C. 417. 554 BEIEF ON PACTS. 5. Answering to name. Evidence of interview had at the proper place, with a per- son answering to the name, is competent.^ 1 Howard v. Holbrook, 9 Bosw. 237, 23 How. Pr. 64 (holding such evidence sufficient alone to sustain verdict) ; Hunt v. Maybee, 7 N. Y. 266. See also Absence; Fictitious Person. 6. Slight evidence. Evidence tending to show identity is not incompetent be- cause slight or fragmentary, unless no other evidence is to be 1 Johnson v. Com. 115 Pa. 369, 9 Atl. 78 (held, that no matter how slight may be the inference of identity to be drawn from any single fact, it is admissible as a fragment of the material from which the induc- tion is to be made), s. P., Whart. Crim. Ev. 9th ed. § 27 . Another similar offense, competent for purpose of identifying the perpe- trator. Goersen v. Com. 99 Pa. 388; State v. Maxwell, 51 Iowa, 314, 1 N. W. 666; Washington v. State, 8 Tex. App. 377. Billhead, and the name on it, without producing the paper. Roosevelt v. Eckard, 17 Abb. N. C. 58, s. P., Com. v. Blood, 11 Gray, 74. Clothing, Early v. State, 9 Tex. App. 478; and articles found upon the person. State v. Dickson, 78 Mo. 438; and contents of valise found near the body. Campbell v. State, 8 Tex. App. 84. (Contra, as to clothing where there was no evidence there had not been a change, People V. Simpson, 48 Mich. 474, 12 N. W. 662.) And the clothes identified as those worn by the accused at the time of the crime, if preserved in the same condition, may be inspected by the jury. People V. Gonzalez, 35 N. Y. 49. Habits the same. Udderzook v. Com. 76 Pa. 340. Hair found where the remains of deceased were, admissible as a circum- stance tending to aid in the identification of his person. Marion v. State, 20 Neb. 233, 57 Am. Rep. 825, 29 N. W. 911. Handwritings of each, and comparison between them. Bell v. Brewster, 44 Ohio St. 690, 10 N. E. 679. s. p., Cluverius v. Com. 81 Va. 787. (Contra: article in 32 Alb. L. J. 101.) Physical characteristics, such as color of hair and whiskers, the measure of the body, the stature, absence of certain teeth, and marks on those remaining. Linsday v. People, 63 N. Y. 143, affirming 5 Hun, 104, more fully, 67 Barb. 548. Identifying the hand or foot of a deceased person may be sufficient evidence of personal identity. People v. Graves, 5 Park. Crim. Rep. 134. IDENTITY. 555 fossession of horse like the one ridden by the culprit, competent. Wil- liams V. State, 24 Tex. App. 17, 5 S. W. 655. Signature, by name on one deed, and by mark on another, but slight evi- dence against identity. Mackay v. Easton, 19 Wall. 619, 22 L. ed. 211. Sound of voice. Com. v. Hayes, 138 Mass. 185. So, also, of a, dog's bark. Wilbur V. Hubbard, 35 Barb. 303. Tracks. Evidence that the shoes of a person were of a size and shape that would make a track like that attributed to a particular person is competent as tending to show that the tracks were made by him. People v. McCallam, 3 N. Y. Crim. Rep. 189, s. p., Hotchkiss v. Ger- mania F. Ins. Co. 5 Hun, 90. See also People v. McCurdy, 68 Cal. 576, 10 Pac. 207 (holding that the facts that the measurements of the footprints were made two weeks after the footprints were made, did not render the evidence incompetent). And an ordinary witness having testified to his examination of footprints and shoes may testify as to the correspondence between them. Com. V. Pope, 103 Mass. 440, s. P., Cora. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401 ; Hotchkiss v. Germania F. Ins. Co. 5 Hun, 90. Sim- ilarity of tracks of horse not alone enough. State v. Melick, 65 Iowa, 614, 22 N. W. 895. Evidence by witness who arrested defendant charged with robbery, found on him some of the stolen property, competent to identify him as one of the perpetrators of the crime. Wyatt v. State, 38 Tex. Crim. Rep. 256, 42 S. W. 598. Testimony that witness saw the marks where plaintiff had slipped into the ditch, the next morning after an accident, competent to prove the spot where the accident occurred. Britton v. St. Louis, 120 Mo. 437, 25 S. W. 366. Evidence of the attempt of persons to take hold of and detain one whom they had seen about a half hour before peeking in a window is admis- sible for the purpose of identifying him on his trial for such disorder- ly conduct. Grand Rapids v. Williams, 112 Mich. 247, 36 L.R.A. 137, 70 N. W. 547. Competent in libel suit, for the purpose of showing that the article, which did not name the person aspersed, was intended to apply to plaintiff, and would be so understood by the reading public, to introduce similar articles published the same day, on which the article in question was based, which named the plaintiff. Van Ingen v. Mail & Exp. Pub. Co. 156 N. Y. 376, 50 N. E. 979, affirming 14 Misc. 326, 35 N. Y. Supp. 838. Evidence as to the trailing by dogs nearly a month after a theft in ques- tion, indicating that defendant had been visiting various places at night, incompetent. Spillman v. State, — Tex. Crim. Rep. — , 44 S. W, 150. Evidence that one of three persons standing in different relations to n 556 BEIEB- ON FACTS. railroad company gave an unauthorized signal for the movement of a train while a switchman was engaged in uncoupling cars does not tend to identify one standing in place of the company as the person who gave the signal. Rutledge v. Missouri P. E. Co. 123 Mo. 121, 24 S. W. 1053, affirmed on rehearing in 123 Mo. 140, 27 S. W. 327. Evidence that a given person stole his sister's earrings and a horse is irrelevant on the issue of his identity with a person having the same name. Wallace v. Byers Bros. 14 Tex. Civ. App. 574, 38 S. W. 228. The declarations of one to his brother in 1838, that he was from the southwestern part of Texas, and had been with Sam Houston and Davy Crockett, are hearsay and inadmissible for the purpose of iden- tifying him as the person to whom a bounty warrant for services in the war between Texas and Mexico was granted, as such declarations do not relate to a matter of pedigree. Sargent v. Lawrence, 16 Tex. Civ. App. 540, 40 S. W. 1075. 7. Name as evidence of identity. Identity of name raises a legal presumption of identity of person, in the absence of anything, such as the commonness of some name or evidence imputing diilerent residences, or other circumstances, raising a doubt. ^ The same principle applies to real property.* ILee V. Murphy, 119 Cal. 364, 51 Pac. 549 (Cal. Code Civ. Proc. § 1963, subd. 25 ) ; Scott v. Hyde, 21 D. C. 531 ; Summer v. Mitchell, 29 Fla. 179, 14 L.II.A. 815, 10 So. 562; Gross v. Grossdale, 177 111. 248, 52 N. E. 372; Bayha v. Mumford, 58 Kan. 445, 49 Pac. 601; Morris v. Me- Clary, 43 Minn. 346, 46 N. W. 238; Green v. Haritage, 63 N. J. L. 455, 43 Atl. 698; Liscomb v. Eldredge, 20 R. I. 335, 38 Atl. 1052; Smith V. Gillum, 80 Tex. 120, 15 S. W. 794; Ritchie v. Carpenter, 2 Wash. 512, 28 Pac. 380; Sweetland v. Porter, 43 W. Va. 189, 27 S.- E. 352; Crandall v. Lynch, 20 App. D. C. 73. See also Abbott, Tr. Ev. 2d ed. 129, 878; Crim. Tr. Brief, notes in 17 L.R.A. 824 and 4 L.R.A.(N.S.) 539. Identity of surname merely, not sufficient. Fanning v. Lent, 3 E. D. Smith, 206. But trivial difference in given name not enough to preclude the presump- tion, — for instance, "William" instead of "Williams." Rust v. Eckler, 41 N. y. 488, 492, 496 (name of commission to take deposition). A deed over fifty years old, from James Smith, of the county of Cape Girardeau, not to be excluded upon a presumption that it is not the deed of J. Smith, of Little Prairie, the owner of the land, where the identity is sufficiently stated in the body of the instrument. Mackay V. Easton, 19 Wall. 619, 22 L. ed. 211. IDENTITY. 557 Addition of an alias does not preclude the presumption. State v. Kelsoe, 76 Mo. 505 (name and alias in a former conviction). Instances: The presumption avails, to establish — Corpus delicti: State v. Kilgore, 70 Mo. 546 (holding identity of name sufficient proof of identity of person killed). Death and survivorship : Where there is evidence tending to shovf the place of residence and death of one partner, proof of the death at the same place of a person bearing the same name establishes, prima facie, the title of the other partner as survivor. Daby v. Ericsson, 45 N. Y. 786. Liability on covenant: Lawrence v. Farley, 24 Hun, 293, 9 Abb. N. C. 371 (identity of person sued upon the assumption clause as grantee in a deed ) . — on judgment: In action on a foreign judgment, the fact that defend- ant has the same name as the one against whom the judgment was recovered is presumptive evidence (and sufficient, no suspicious cir- cumstances appearing) of his identity, and the judge at the trial may assume that fact without submitting it to the jury. Hatcher v. Roche- leau, 18 N. Y. 86. Tracing titles: Slight proof of identity of a grantor is sufficient in trac- ing titles. Identity of names is prima facie evidence of the identity of persons. Stebbins v. Duncan, 108 U. S. 32, 27 L. ed. 641, 2 Sup. Ct. Rep. 313. There is no presumption tliat the First National Bank of Boise City, Idaho, is identical with the First National Bank of Idaho. Pinkham V. Cockell, 77 Mich. 265, 43 N. W. 921. Where the name of the grantee in a deed, and that of the grantor in a subsequent conveyance of the same land, are the same except as to the initial letter of the middle name, it will not be presumed that they were the same persons. Ambs v. Chicago, St. P. M. & 0. E. Co. 44 Minn. 266, 46 N. W. 321. a Lyon V. Adde, 63 Barb. 89. 8. Oral evidence. Oral evidence, to show who was intended by the name in a written instrument,* or which simply identifies the subject of a written instrument,^ is not necessarily excluded by the rule against varying a writing by parol nor by the statute of frauds.' 1 Jacobs V. Benson, 39 Me. 132, 63 Am. Dec. 609; Berniaud v. Beecher, 71 Cal. 38, 11 Pac. 802 (oral evidence that masculine pronoun was used by mistake for feminine, the given name being only represented by an initial) ; Bristol v. Ontario Orphan Asylum, 60 Conn. 472, 22 Atl. 848 (oral evidence to identify charitable institution to which a bequest has been made) ; Fisher v. Fielding, 67 Conn. 91, 32 L.R.A. 236, 34 558 BRIEF ON FACTS. Atl. 714; Hicks v. Ivey, 99 Ga. 648, 26 S. E. 68; Hogan v. Wallace, 166 111. 328, 46 N. E. 1136; Missionary Soc. of M. E. Church v. Cad- well, 69 111. App. 280; Wilson v. Stevens, 59 Kan. 771, Appx. 51 Pac. 903; Haskell v. Tukesbury, 92 Me. 551, 43 Atl. 500; Wheeler v. Han- son, 161 Mass. 370, 37 N. E. 382; Lankford v. Gebhart, 130 Mo. 621, 32 S. W. 1127; Smith v. Kimball, 62 N. H. 606; Salmer v. Lathrop, 10 S. D. 216, 72 N. W. 570; Dodd v. Templeman, 76 Tex. 57, 13 S. W. 187; Morrison v. State, 40 Tex. Crim. Rep. 473, 51 S. W. 358. See also cases cited in notes to Ferguson v. Eafferty (Pa.) 6 L.R.A. 33; General Assembly v. Guthrie (Va.) 6 L.R.A. 321; Re Woods, 33 Misc. 12, 67 N. Y. Supp. 1123. But oral evidence is not admissible to identify the intended vendee of lands in a contract of sale in which he is not designated other than by the use of the personal pronoun "you." Carriek v. Mincke, 60 Mo. App. 140. jSTor is it admissible to substitute a third person as cestui que trust in place of the person named in a deed of trust. American Nat. Bank v. Harlan, 82 Md. 675, 43 Atl. 756. ZLonergan v. Buford, 148 U. S. 581, 37 L. ed. 569, 13 Sup. Ct. Rep. 684; Watson v. Kirby, 112 Ala. 436, 20 So. 624; Byrne v. Ft. Smith Nat. Bank, 1 Ind. Terr. 680, 43 S. W. 957; Webster v. Fleming, 178 111. 340, 52 N. E. 975; Tufts v. Hunter, 63 Minn. 464, 65 N. W. 922; Skinker v. Haagsma, 99 Mo. 208, 12 S. W. 659; Woods v. Hart, 50 Neb. 497, 70 N. W. 53; Harris v. Allen, 104 N. C. 86, 10 S. E. 127; Ft. Worth Nat. Bank v. Red River Nat. Bank, 84 Tex. 369, 19 S. W. 517; Taylor v. Moore, 63 Vt. 60, 21 Atl. 919; Lynch v. Henry, 75 Wis. 631, 44 N. W. 837; Forst v. Leonard, 112 Ala. 296, 20 So. 587. But extrinsic evidence which goes beyond the purpose of aiding in the interpretation of a written insurance policy and tends to show that the subject thereof was other and different from that described in the instrument is inadmissible to sustain an action to enforce the contract as though it applied to property not described therein. Sanders v. Cooper, 115 N. Y. 279, 5 L.R.A. 638, 22 N. E. 212. 3 Salmon Falls Mfg. Co. v. Goddard, 15 How. 446, 454, 14 L. ed. 493, 496 (sale of merchandise) ; McDuffie v. Clark, 39 Hun, 166 (deed of lands). And see Eudieel v. State, 111 Ind. 595, 13 N. E. 114. 9. Commingled assets. Identity of fraud traced through commingling of assets.* 1 Hooley v. Gieve, 9 Abb. N. C. 8, 41 ; note to Haynes v. Brooks, 17 Abb. N. C. 160; Englar v. Oflfutt, 70 Md. 78, 16 Atl. 497, 28 Cent. L. J. 341, with note; Denton v. Merrill, 43 Hun, 224, 229. And see Deposit. IDENTITY. 559 10. Rebuttal. a. Testing witness. — To rebut testimony of a witness to the identity of a person, the witness may be tested by pointing out a third person, and interrogating the witness as to the resem- blance of the latter to the one in question.'' 1 Whart. Crim. Ev. 10th ed. 1912 § 808, p. 1566. b. Iiispection and experiment. — One against whom evidence of physical peculiarities has been adduced as evidence of iden- tity has a right to submit himself to the inspection of the jury in rebuttal, if the peculiarities relied on are such that the evi- dence afforded thereby could not be made for the occasion, such, for instance, as the conformation of a limb.' Otherwise of peculiarities that could be so produced, such as the tone of voice.^ 1 Lipes V. state, 15 Lea, 125, 54 Am. Rep. 402 (error to refuse to allow accused to exhibit his feet). So, it is error to refuse to allow evidence that he had not used shoes capa- ble of making the tracks proved (Stone v. State, 12 Tex. App. 219) ; or that the horse could not wear such shoes as to make the horse tracks proved. State v. Melick, 65 Iowa, 614, 22 N. W. 895. "Com. v. Scott, 123 Mass. 222, 25 Am. Rep. 81 (not error to refuse to allow him to prove his usual and natural voice, by using his voice in the courtroom). See also Ability; Condition. c. Existence of a "double." — Whether it is competent to prove that a third person has been seen closely resembling the one in question, without producing such person, see.* l Affirmative: White v. Com. 2 Ky. L. J. 256, 15 Rep. 84. Negative: Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711. d. Name. — To disprove identity, it is not competent to show difference of name, without offering to show that a different per- son was intended.* Existence of a person in one place is not disproved bv evi- 560 BEIEF ON PACTS. dence of previous death of one of the same name residing in another place.* lEutherford v. State, 13 Tex. App. 92 (name of injured person, as stated in indictment), s. p.. Com. v. Gormley, 133 Mass. 580 (name of per- son to whom liquor was sold). * People V. Cline, 44 Mich. 290, 6 N. W. 671 (conviction for false pretenses not sustainable). ILLEGALITY. T'or kindred topics, see Intent; Knowledge. Oral evidence. The rule that oral evidence is not competent to vary a vsrrit- "ten contract does not preclude oral evidence of legality,^ or of illegality.* 1 See § 6, CONSIDEEATION. 2 Cassard v. Hinman, 1 Bosw. 207 (wager contract). And see Brown r. Brown, 34 Barb. 533 (lobby services) ; Koe v. Kiser, 62 Ark. 92, 34 S. W. 534 (usury); Daw v. Niles, — Cal. — , 33 Pac. 1114; Wain- wright V. Talcqtt, 60 Conn. 43, 22 Atl. 484; Ryan v. Potwin, 60 111. App. 637; Humbert v. Larson, 99 Iowa, 275, 68 N. W. 703; Friend v. Miller, 52 Kan. 139, 34 Pac. 397; Gould v. Leavitt, 92 Me. 416, 43 Atl. 17; Saginaw Bldg. & L. Asso. v. Tennant, 111 Mich. 515, 69 N. W. 1118; Lewis v. Willoughby, 43 Minn. 307, 45 N. W. 439; Pateraon V. Baker, 51 N. J. Eq. 49, 26 Atl. 324; Smith v. Stevens, 81 Tex. 461, 16 S. W. 986. Contra: Dewey, Contr. 65, 66. See further, on this question, cases reviewed in note to Ferguson v. Kafferty (Pa.) 6 L.R.A. 33. Whether illegality is available unless alleged, see May v. Burras, 13 Abb. N. C. 388; Cary v. Western U. Teleg. Co. 47 Hun, 610, with note 20 Abb. N. C. 333, 342; Maitland v. Zanga, 14 Wash. 92, 44 Pac. 117. INDEBTEDNESS. 561 INDEBTEDNESS. 1. state of account. 2. Municipal indebtedness. 3. Admission. For kindred topics, see Abstkacts ; AccoBD and Satisfaction ; Accounts ; Account Stated; Admissions; Compeomisb; Cobboboration; Pay- ment. 1. State of account. The state of an account, when indirectly involved, may be tes- tified to directly by a witness cognizant of it, without producing the books.* 1 Lewis V. Palmer, 28 N. Y. 271, 278. See also Absteacts; Accounts. 2. Municipal indebtedness. It will be presumed, in the absence of proof to the contrary, that a limitation upon the amount of indebtedness which a municipal corporation may incur has not been exceeded.* 1 Gladstone v. Throop, 18 C. C. A. 61, 37 U. S. App. 481, 71 Fed. 341; Keene Five-Cent Sav. Bank v. Lyon County, 90 Fed. 523; German Ins. Co. V. Manning, 95 Fed. 597; Thompson v. Independent School Dist. 102 Iowa, 94, 70 N. W. 1093; Johnson v. Pawnee County Comrs. 7 Okla. 686, 56 Pac. 701; Custer County Comrs. v. DeLana, 8 Okla. 213, 57 Pac. 162; Linn v. Chambersburg, 160 Pa. 511, 25 L.R.A. 217, 28 Atl. 842. 3. Admission. The admission by a testatrix that she had money belonging to other persons, and her request to her friends to see that the money was duly paid to those entitled to it, are competent to bind her estate for the payment of such debts.* 1 Deuterman v. Ruppel, 103 111. App. 106. Abb. Facts — 36. 362 BEIEF ON FACTS. INDUCEMENT. 1. What would you have done? 2. Oral evidence. 3. Cogency of evidence. See also Good Faith; Intent. 1. What would you have done? The rule that a witness may testify that he was induced to certain conduct by specified representations,^ and that he be- lieved the representations,^ does not allow him to be asked, on direct examination, if he would have done so had no such rep- resentation been made.' iHardt v. Schulting, 13 Hun, 537; Greasier v. Rees, 27 Neb. 515, 43 N. W. 363; Lyons v. Allen, 11 App. D. C. 543. See also Intent. ZMcGrann v. Pittsburgh & L. E. E. Co. Ill Pa. 171, 2 Atl. 872; Rogers v. Ferris, 107 Mich. 126, 64 N. W. 1048. See also Good Faith. 3 Benedict v. Penfield, 42 Hun, 176; Learned v. Ryder, 61 Barb. 552, 5 Lans. 539. Much less, what others would have done. Northwestern Benev. & Mut. Aid Asso. v. Hall, 118 111. 169, 8 N. E. 764. But see- Browning V. National Capital Bank, 13 App. D. C. 1 (an action for deceit in representing that a specified person was worth a designated amount to defendant's personal knowledge, without saying anything about the indebtedness of such person, of which defendant knew, in reliance upon which plaintiff bank made a loan to such person, hold- ing that the testimony of the president and directors of the bank that they would not have made a loan if defendant had disclosed the in- debtedness of the borrower, is admissible) ; Pridham v. Weddington, 74 Tex. 354, 12 S. W. 49 (that a party defending an action to recover for corporate stock purchased, on the ground of deceit, might testify that he could not have purchased the stock had not the representa- tions been made to him) ; Jandt v. Potthast, 102 Iowa, 223, 71 N. W. 216 (tliat the credit man of a seller of goods on credit to defendant might testify that the sale would not have been made if he had known defendant's financial condition). 2. Oral evidence. The rule that oral evidence is inadmissible to vary or change the terms of a written instrument does not apply to such evi- dence when offered for the purpose of impeaching the instru- INDUCEMENT. 563 ment for false or fraudulent representations, upon the faith of which it was entered into.* iGustafson v. Rustemeyer, 70 Conn. 125, 39 L.R.A. 644, 39 Atl. 104; Grand Tower & G. G. R. Co. v. Walton, 150 111. 428, 37 N. E. 920; McCormiek Harvesting Mach. Co. v. Williams, 99 Iowa, 601, 68 N. W. 907; Peck v. Janison, 99 Mich. 326, 58 N. W. 312; Bryant v. Thes- ing, 46 Neb. 244, 64 N. W. 967; Cass v. Brown, 68 N. H. 85, 44 Atl. 86; Mayer v. Dean, 115 N. Y. 556, 5 L.R.A. 540, 22 N. E. 261; Sidney School Furniture Co. v. Warsaw School Dist. 130 Pa. 76, 18 Atl. 604; Fine v. Stuart, — Tenn. — , 48 S. W. 371; Reed v. Newcomb, 62 Vt. 75, 19 Atl. 367. 3. Cogency of evidence. A written instrument on which contractual rights are found- ed cannot be impeached by the person executing it on the ground that he had been fraudulently induced to do so by a slight pre- ponderance of evidence ; but the evidence of fraud must be clear, decided, and satisfactory.* 1 It is true that the law in such cases requires nothing but a preponder- ance of evidence, but it requires that preponderance to be great enough to overcome all opposing evidence and repel all opposing presump- tions. In order to do so it should be of such weight and cogency as to satisfactorily establish the wrongful conduct charged. Kansas Mill Owners' & Mfrs. Mut. F. Ins. Co. v. Rammelsberg, 58 Kan. 531, 50 Pac. 446. To the same effect, see Earr v. Chandler, 47 N. J. Eq. 532, 20 Atl. 733 ; Hand v. Waddell, 167 111. 402, 47 N. E. 772 ; Strick- land V. Isett, 186 Pa. 280, 40 Atl. 513; Straight v. Wilson, 176 Pa. 520, 35 Atl. 230; Martin v. Hill, 41 Minn. 337, 43 N. W. 337; Archer T. California Lumber Co. 24 Or. 341, 33 Fac. 526. 564 BEIEF ON FACTS, INFANCY. 1. Admission. 2. Burden of proof. 3. Physical appearance. For cognate topics, see Age; Bikth. 1. Admission. Against an infant when lie is a party, his own admission of being a minor is competent.^ 1 People V. Tripp, 4 N. Y. Legal Obs. 344 (indictment for offering to vote). 2. Burden of proof. A defendant who pleads infancy has the burden of establish- ing it.^ 1 Goodwine v. Acton, 97 111. App. 11. 3. Physical appearance. If a defendant pleads infancy, but offers no independeat proof on this question, the court may consider his physical ap- pearance, in connection with other circumstances, in determin- ing whether the allegation is sustained.^ 1 Garbarsky v. Simkin, 36 Misc. 195, 73 N. Y. Supp. 199. INSANITY. 565 IlSrSAOTTY. I. Pbesumptions and Burden op Proof. 1. In general. 2. With relation to contracts and conveyances. 3. With relation to wills. a. In general. b. As to fraud and undue influence. c. Burden of proof after probate. 4. As to capacity of one contracting marriage. 5. Presumption of insanity from suicide. 6. Presumption of continuance of insanity. a. Habitual insanity. b. Temporary insanity. u. Alcoholism and alcoholic insanity. d. Presumption of continuance of a lucid interval. e. Nature of the presumption. II. Opiwion Evidence. 7. Expert opinions. a. Admissibility generally. b. Privilege of witnesses. c. From observation or examination. d. From the evidence. , e. On hypothetical questions or statements. ( 1 ) Admissibility. (2) Hypothesis; upon what based. (3) Evidence in support of hypothesis. (4) Form of question. f. Qualifications of experts. g. Cross-examination; contradiction, h. Weight. (1) In general. (2) As affected by facts and opportunity to observe. (3) As affected by character, bias, and nature of the ques- tion. (4) As compared with other expert opinions. (5) As compared with nonexpert opinions. (6) As a question for the jury. 8. Nonexpert opinions generally. a. General rules. b. Who may give. c. Acquaintance necessary. d. Time to which opinion relates. e. Cross-examination, rebuttal, and impeachment. f. Weight. 566 BRIEF ON FACTS. 9. Opinion of subscribing witnesses as to sanity or insanity. a. Admissibility generally. b. Necessity of giving. e. Contradiction; weight. in. Miscellaneous. 10. Photographs. 11. Declarations. 12. General reputation. 13. Presence of defendant in lunacy proceedings. 14. Conduct and circumstances. 15. Belief in spiritualism, witchcraft, etc. I. Presumptions and Burden of Proof. 1. In general. The rule is practically universal that every person is pre- sumed to be sane until the contrary appears,^ and the burden of proof to establish insanity rests with the party alleging it.° lEthridge v. Bennett, 9 Houst. (Del.) 295, 31 Atl. 813; Argo v. CofEn, 142 111. 368, 34 Am. St. Rep. 86, 32 N. E. 679; Wallace v. Lehring, 134 Ind. 447, 34 N. E. 231; Chandler v. Barrett, 21 La. Ann. 58, 99 Am. Dec. 701; Ricketts t. JolliflF, 62 Miss. 440; Perkins v. Perkins, 39 N. H. 163; Jackson ex dem. Van Dusen v. Van Dusen, 5 Johns. 144, 4 Am. Dec. 330; Ean v. Snyder, 46 Barb. 230; Odom v. Riddick, 104 N. C. 515, 7 L.R.A. 118, 17 Am. St. Rep. 686, 10 S. E. 609; Mil- ler V. Rutledge, 82 Va. 863, 1 S. E. 202; Giebel v. State, 28 Tex. App. 151, 12 S. W. 591. But the presumption that every man is sane until the contrary is proved is not a presumption of law, but one of fact, or at least a mixed presumption of law and fact. Sutton v. Sadler, 3 C. B. N. S. 87, 26 L. J. C. P. N. S. 284, 3 Jur. N. S. 1150, 5 Week. Rep. 880. And whatever force is given to the presumption of sanity is due, not to its intrinsic weight as a distinct item of proof, but to its operation in some degree in rendering the circumstances adduced to prove san- ity more persuasive. McGinnis v. Kempsey, 27 Mich. 363. Where, upon the whole evidence pro and con, it is doubtful whether the party be sane or not, the presumption in favor of sanity may operate to decide the question. Hawkins v. Grimes, 13 B. Mon. 257. ZFrazer v. Frazer, 2 Del. Ch. 260; Guild v. Hull, 127 111. 523, 20 N. E. 665; Ricketts v. Jolliff, 62 Miss. 440; Jackson ex dem. Cadwell v. King, 4 Cow. 207, 15 Am. Dec. 354; People v. Pine, 2 Barb. 566; Bal- lew V. Clark, 24 N. C. (2 Ired. L.) 23; Odom v. Riddick, 104 N. C. 515, 7 L.R.A. 118, 17 Am. St. Rep. 686, 10 S. E. 609; Pennypacker v. Pennypacker, 5 Sadler (Pa.) 408, 8 Atl. 634; Coyle v. Com. 100 Pa. INSANITY, 567 573, 45 Am. Rep. 397; Miller v. Eutledge, 82 Va. 863, 1 S. E. 202; Burton v. Scott, 3 Rand. (Va.) 399; Hall v. Unger, 2 Abb. (U. S.) 507, Fed. Cas. No. 5,949; Worthington v. Mencer, 96 Ala. 310. 17 L.E.A. 407, 11 So. 72. "2. With relation to contracts and conveyances. The sanity and competency of a party to a contract are uni- versally presumed in the absence of evidence to the contrary. And the burden of proof to avoid a contract upon the ground that the grantor had not sufficient understanding to know the nature and consequences of his act rests with the party alleging it.* Thus, a grantor is presumed to be sane and competent at the time of executing a deed when nothing to the contrary ap- pears, and the burden of proof of unsoundness of mind and in- capacity rests with the party seeking to impeach it,' unless a previous condition of insanity has been established.* The same rule applies to gifts.' And the burden of proof in an action to set aside a mortgage on the ground of alleged mental incompe- tency of the mortgagor rests with the complainant to show such incompetency.' So, the burden of proof as to the mental inca- pacity of the assignor at the time of the execution of the assign- ment rests with the party asserting it.'' So, also, the burden of proving incapacity to give a release rests with the complainant in an action brought to set it aside on that ground.' Old age and physical infirmity, however, raise no presumption of in- competency to execute a deed or make a contract.' iKillian v. Badgett, 27 Ark. 166; Menkins v. Lightner, 18 111. 282; State V. Geddis, 42 Iowa, 268; Hiett v. Shull, 36 W. Va. 563, 15 S. E. 146; Powell V. Powell, 27 Miss. 783. ;«Day 1-. Seeley, 17 Vt. 542; White v. Farley, 81 Ala. 563, 8 So. 215; Wray v. Wray, 32 Ind. 126; State v. Geddis, 42 Iowa, 268; Trimbo V. Trimbo, 47 Minn. 389, 50 N. W. 350; Cutler v. Zollinger, 117 Mo. 92, 22 S. W. 895. 'One who seeks to avoid an express contract upon the ground of his in- toxication at the time must produce clear and satisfactory proof that he was in such a state of drunkenness as not to know what he was doing. Johns v. Fritchey, 39 Md. 259. 3 Doe ex rem. Guest v. Beeson, 2 Houst. (Del.) 246; Titcomb v. Van tyle, 84 111. 371; Achey v. Stephens, 8 Ind. 411; Buckey v. Buckey, 38 W. Va. 168, 18 S. E. 383; Dicken v. Johnson, 7 Ga. 484; Howe v. 568 BEIEF OSr PACTS. Howe, 99 Mass. 88; Brown v. Brown, 39 Mieh. 792; Hoge v. Fisher, Pet. C. S. 163, Fed. Cas. No. 6,585. If there is only a balance of evidence or a mere doubt of the sanity of the maker of a deed, the presumption in favor of sanity must turn the scale in favor of its validity. Myatt v. Walker, 44 111. 485; Lilly V. Waggoner, 27 111. 395; Wall v. Hill, 1 B. Mon. 290, 36 Am. Dec. 578. 4Buckey v. Buckey, 38 W. Va. 168, 18 S. E. 383. 5 Kimball v. Cuddy, 117 111. 213, 7 N. E. 589. 6 Gates V. Cornett, 72 Mich. 435, 40 N. W. 740 ; Youn v. Lamont, 56 Minn. 216, 57 N. W. 478 ; Fay v. Burditt, 81 Ind. 435, 42 Am. Rep. 142. 7 Dorchester v. Dorchester, 18 N. Y. S. R. 402, 3 N. Y. Supp. 238. sSwayze v. Swayze, 37 N. J. Eq. 180; Chicago West Div. R. Co. v. Mills, 91 111. 39. 9 Williams v. Haid, 118 N. C. 481, 24 S. E. 217; Lewis v. Pead, 1 Ves. Jr. 19. 3. With relation to wills. a. In general. — ^Every person of full age is presumed to have sufficient mental capacity to make a will until the contrary appears.' This presumption extends throughout his life, no matter to what age the testator may live.* And the presumption is usually required to be rebutted by proof.^ As to the burden of proof, there is a conflict in the authorities. In many jurisdictions it is declared that insanity or incapacity of a testator alleged to defeat the probate of his will must be proved by the contestant when the formal execution of the will has been duly proved.* But the opposite rule, that testamentary capacity must be proved by the proponent, is also adopted by many courts.^ Th.e general rule in favor of tes- tamentary capacity applies on an issue of devisavit vel nonJ^ So, in an ejectment case, in which the title depends on a will, the presumption of law is in favor of the testator's sanity, and the burden of proof is upon him who denies it' Where general insanity is shown before the making of a will, the presumption in favor of competency is changed, and testamentary capacity must be proved affirmatively.' But a temporary mental disor- der at some time prior to the making of a will does not change the rule in favor of testamentary capacity.' lO'Donnell v. Rodiger, 76 Ala. 222, 52 Am. Rep. 322; Panaud v. Joneii, 1 Cal. 488; Jamison v. Jamison, 3 Houst. (Del.) 108; Higgins v. INSANITY. 569 Carlton, 28 Md. 115, 92 Am. Dee. 666; Payne v. Banks, 32 Miss. 292; Jackson v. Hardin, 83 Mo. 175; Pettes v. Bingham, 10 N. H. 515; Elldnton v. Brick, 44 N. J. Eq. 154, 1 L.R.A. 161, 15 Atl. 391; Re Plansburgh, 82 Hun, 49, 31 N. Y. Supp. 177; Grabill v. Barr, 5 Pa. 441, 47 Am. Dec. 418; Dean v. Dean, 27 Vt. 746; Cole's Will, 49 Wis. 179, 5 N. W. 346; Sutton v.. Sadler, 3 Jur. N. S. 1150, 3 C. B. N. S. 87, 26 L. J. C. P. N. S. 284, 5 Week. Rep. 880; Groom v. Tliomas, 2 Hagg. Eccl. Rep. 433. ZHiggins V. Carlton, 28 Md. 115, 92 Am. Dec. 666. 3 Payne w Banks, 32 Miss. 292; Landis v. Landis, 1 Grant Cas. 248. 1 Coble V. Grant, 3 N. J. Eq. 629; Elkinton v. Brick, 44 N. J. Eq. 154, 1 L.R.A. 161, 15 Atl. 391; Baxter v. Abbott, 7 Gray, 71; Chrisman V. Chrisman, 16 Or. 127, 18 Pac. 6; Allen v. Griffin, 69 Wis. 529, 35 N. W. 21; Cotton V. Ulmer, 45 Ala. 378, 6 Am. Rep. 703; MoCuUough V. Campbell, 49 Ark. 367, 5 S. W. 590; Chandler v. Ferris, 1 Harr. (Del.) 454; Taylor v. Creswell, 45 Md. 422; Perkins v. Perkins, 39 N. H. 163; Delaiield v. Pariah, 25 N. Y. 9; Grubbs v. McDonald, 91 Pa. 236; Kinloch v. Palmer, 1 Mill, Const. 216; Stephenson v. Step- henson, 62 Iowa, 163, 17 N. W. 456; Groom v. Thomas, 2 Hagg. Eccl. Rep. 433. But later decisions in the lower courts of New York have inclined to the rule that the proponent of the will must give affirmative proof of competency. Re Ramsdell, 6 Dem. 244; affirmed in 20 N. Y. S. R. 446, 3 N. Y. Supp. 499, and also affirmed by memorandum decision in 117 N. Y. 636; Harper v. Harper, 1 Thomp. & C. 35. 5 Comstock V. Hadlyme Ecclesiastical Soc. 8 Conn. 254, 20 Am. Dec. 100 ; Knox's Appeal, 26 Conn. 20; Evans v. Arnold, 52 Ga. 169; Prentis V. Bates, 93 Mich. 234, 17 L.R.A. 494, 53 N. W. 153; Gerrish v. Nason, 22 Me. 438, 39 Am. Dec. 589; Barnes v. Barnes, 66 Me. 286; Seebrook V. Fedawa, 30 'Neb. 424, 46 N. W. 650; Beazley v. Denson, 40 Tex. 416; Williams v. Robinson, 42 Vt. 658, 1 Am. Rep. 359; Crownin- shield V. Crowninshield, 2 Gray, 524; Phelps v. Hartwell, 1 Mass. 71; Silverthorn's Will, 68 Wis. 372, 32 N. W. 287 (obiter). The doctrine is very materially modified in Illinois, where a party assert- ing the validity of a will is required in the first instance to make a. prima facie case of the testator's sanity, but, when this has been done and contradictory testimony is produced, proof of sanity must prevail unless the contradictory testimony is sufficient to overcome or neutralize the general rule of law that all men are presumed sane until the contrary is proved, as well as affirmative testimony in favor of the will. Wilbur v. Wilbur, 129 111. 392, 21 N. E. 1076; Pendlay v. Eaton, 130 111. 69, 22 N. B. 853; Carpenter v. Calvert, 83 111. 62. 6 McMasters v. Blair, 29 Pa. 298 ; Grabill v. Barr, 5 Pa. 441, 47 Am. Dec. 418; Kinloch v. Palmer, 1 Mill, Const. 216; Mayo v. Jones, 78 N. C. 404. 'Den ex dem. Trumbull v. Gibbons, 22 N. J. L. 117, 51 Am. Dec. 253; 570 BEIEF ON FACTS. Thompson v. Kyner, 65 Pa. 368; Jackson ex dem. Van Dusen v. Van Dusen, 5 Johns. 144, 4 Am. Dec. 330; Jones v. Jones, 43 N. Y. S. E. 434, 17 N. Y. Supp. 905. « Morrison v. Smith, 3 Bradf. 209; Symes v. Green, 1 Swabey & T. 401, 28 L. J. Prob. N. S. 83, 5 Jur. N. S. 742; Groom v. Thomas, 2 Hagg.- Eccl. Eep. 433; Duffield v. Robeson, 2 Harr. (Del.) 375; Saxon v. Whitaker, 30 Ala. 237. ■SMcMast^rs v. Blair, 29 Pa. 298. Thus, a paralytic stroke producing unconsciousness does not raise a presumption of incapacity at the time of making a subsequent will. Trish V. Newell, 62 111. 197, 14 Am. Eep. 79. And proof of a par- ticular delusion at some time prior to the making of a will does not raise a presumption of incapacity. Townshend v. Townshend, 7 Gil, 10. Nor proof that testator had occasional paroxysms of pain dur- ing which he did not know anything. Blake v. Rourke, 74 Iowa, 519, 38 N. W. 392. And the occasional intemperance of a testator render- ing him for a time incompetent to do business will not cast the bur- den of proving his capacity on the proponent of his will. Goble v. Grant, 3 N. J. Eq. 629; Lee's Case, 46 N. J. Eq. 193; Kahl v. Schober, 35 N. J. Eq. 461. Even habitual intoxication is not sufficient to raise a presumption of incapacity. Lee's Case, 46 N. J. Eq. 193 ; Elkinton v. Brick, 44 N. J. Eq. 154, 1 L.E.A. 161, 15 Atl. 391; An- dress v. Weller, 3 N. J. Eq. 604. Eor other cases, see notes in 17 L.E.A. 495, and 36 L.E.A. 724. i. As to fraud and undue, influence. — Where the capacity of a testator is weakened or impaired, though not destroyed, and there is evidence of undue influence, fraud, imposition, or mistake, the presumption that he signed the will of his own free will and that he knew the contents thereof, derived from former •execution, is diminished, if not entirely overcome.^ And the legal presumption that a testatrix understood the contents of her will, which had been read to her, is only prima facie where she is of great age and addicted to the use of opiates and ardent spirits to such an extent as to enfeeble and impair her faculties.^ So, the presumption of knowledge on the part of a testator of the contents of his will from execution does not arise where he is blind or illiterate, and in such ease there must be proof of knowl- edge as well as the formal execution.^ The fact that a party preparing a will for a testator takes a benefit under it is a cir- cumstance which excites the suspicion of the court and which ^vill invalidate the will unless that suspicion is removed.* And INSANITY. 571 a will written by the j^rincipal legatee devising the testator's ■estate to strangers without apparent cause necessitates proof of the testator's volition, capacity, and knowledge of the contents of the instrument and an explanation as to the disposition of the estate and the preparation of the paper.^ But the fact that a legatee in a will prepared it does not in all cases and \inder all circumstances create a presumption that the testator did not know of or assent to its contents, and compel the adduction of additional evidence of knowledge and consent.^ And it cannot be implied from the mere weakness of a testator that a devisee has been guilty of wrong and fraud in procuring a devise of property which it might be supposed he would not have been likely to have obtained except by coercion.'' But weakness of mind on the part of the testator, though not sufficient to create testamentary incapacity, together with the fact that a person whose advice had been taken receives a large benefit under his will, casts the burden upon the beneficiary to rebut the presump- tion of Tindue influence and of afiirmatively showing mental capacity,' and to show afiirmatively both testamentary capacity and that the testator acted with the full knowledge of the value of his estate.^ 1 Burger v. Hill, 3 Bradf. 360. 2 Rutland v. Gleaves, 1 Swan, 198. SBartee v. Thompson, 8 Baxt. 508. 4 Barry v. Butlin, 1 Curt. Eccl. Rep. 637. SRenn v. Samoa, 33 Tex. 760. 6 Cramer v. Crumbaugh, 3 Md. 491. 7 Thompson v. Kyner, 65 Pa. 368. 8 Wilson V. Mitchell, 101 Pa. 495. 9 Caldwell v. Anderson, 104 Pa. 199. Per other eases, see note in 36 L.R.A. 726, 737. c. Burden of -proof after probate. — There is the same con- flict of authority with reference to the burden of proof in a proceeding to set aside a will after probate or on appeal in a probate proceeding as that with relation to burden of proof in probate proceedings. Thus, it is laid down upon the one hand that one who seeks to set aside a will which has been established in the probate court upon an allegation of mental incapacity or 572 BRIEF ON FACTS. undue influence assumes the affirmative and has the burden of proof.* Upon the other hand, the rule has been laid down that the burden of proof on a bill in chancery to contest a will after its admission to probate rests with those seeking to maintain it to show that at the time of its execution the testator was of sound mind and memory to the extent of understanding what he was about,^ and that the burden of proof rests with the pro- ponent on appeal from an order of probate to establish not only the execution of the will, but also the capacity of the testator ; ' and that the burden of proving the proper execution of a will rests with the defendant in ejectment claiming under it, and that for that purpose he must call the subscribing witnesses, making them his own, to testify to the fact of the execution and the mental capacity of the testator at the time, leaving to the plaintiff the benefit of cross-examining the witnesses afterwards touching matters pertinent to the question of mental capacity.* 1 Jenkins v. Tobin, 31 Ark. 306; Eich v. Bowker, 25 Kan. 7; Moore v. Allen, 5 Ind. 521; Blough v. Barry, 144 Ind. 463, 40 N. E. 70; Cope- land V. Copeland, 32 Ala. 512. ZTrish \. Newell, 62 111. 196, 14 Am. Eep. 79. 3 Seebrock v. Fedawa, 30 Neb. 425, 46 N. W. 650 ; Potts v. House, 6 Ga. 324, 50 Am. Dee. 329; Comstock v. Hadlyme Ecclesiastical Soc. 8 Conn. 254, 20 Am. Dec. 100. 4 Waters v. Waters, 35 Md. 531. 4. As to capacity of one contracting marriage. Where a marriage has been in fact solemnized, tne person al- leging the incapacity of one of the parties thereto must prove it.' And if the proofs in the case on this question are of equal weight and reliability, the presumption of sanity must prevail.^ So, deaf and dumb persons are presumed to have capacity to contract marriage, and the burden of establishing the contrary rests with the party seeking to impeach the marriage.* But, where the existence of insanity is once established in an action to annul the marriage, the onus is cast upon the party seeking to sustain the marriage to prove by testimony as clearly con- vincing as that required to establish insanity that the particular contract was entered into during a lucid interval.* And the burden of proof rests with the party asserting the validity of a INSANITY. 573 marriage entered into by a person under a decree of lunacy and guardianship to establish that it was entered into during a lucid interval or that it was subsequently ratified.^ 1 Browning v. Reane, 2 Phillm. Eccl. Rep. 69 ; Baughman v. Baughman, 32 Kan. 538, 4 Pac. 1003; Rawdon v. Rawdon, 28 Ala. 565; Nonne- macher v. Nonnemacher, 159 Pa. 634, 28 Atl. 439; Cannon v. Smalley, L. R. 10 Prob. Div. 96. 2 Nonnemacher v. Nonnemacher, 159 Pa. 634, 28 Atl. 439. 3 Harrod v. Harrod, 1 Kay & J. 4, 18 Jur. 853, 2 Week. Rep. 612. * Rawdon v. Rawdon, 28 Ala. 565. 6 Goodheart v. Ransley, 28 Ohio L. J. 227. Proof of insanity to invalidate a marriage on an application for its annulment must be clear and unquestionable,^ especially after the death of one of the parties.^ And going through the marriage ceremony with propriety and decorum is of itself prima facie evidence of suiEcient understanding of the contract to make it valid.* The question of soundness or unsoundness of mind depends upon the general frame and habit of mind, and cannot be determined from particular actions.* iCole V. Cole, 5 Sneed, 57, 70 Am. Dec. 275; Ward v. Dulaney, 23 Miss. 410. 2 Powell V. Powell, 27 Miss. 783. 3 Anonymous, 4 Pick. 32. ' For other eases, see note in 40 L.R.A. 742. * Foster v. Means, Speers, Eq. 569, 42 Am. Dec. 332. , 5. Presumption of insanity from suicide. ISTo presumption of insanity arises from the mere fact of the death of a person caused by his own physical act.^ This is a fact for the consideration of the jury on the question of the existence of insanity.^ And in case of a condition in a life insurance policy making it void in case the assured shall die by his own act, the burden rests with the insurer to prove re- sponsibility, and not with the assured to negative it.* And such burden is not shifted by proof of death, with a coroner's verdict showing suicide attached, when the proof taken as a whole con- tained no concession and denied the existence and authenticity of such verdict.* Upon the other hand, however, it has been 574 BEIEE ON FACTS. held that the insanity of an insured person "Who takes his own life which will save the policy from forfeiture must be proved by the party claiming under the policy.* And proof merely that he was insane at times will not be sufficient.® The authorities are uniformly in accord in holding that sui- cide alone is not sufficient to invalidate a will, although it was made only a short time prior to the suicide, since suicide is not conclusive evidence of insanity.' Some of the cases, how- ever, seem to give the fact of suicide considerable probative force in determining the question of sanity. Thus, it has been said that, though suicide is not, as an inflexible rule, considered as in itself evidence of insanity, it cannot be denied that in most cases it is committed in moments of mental aberration and is an act which nothing else can otherwise justify.' And the fact of suicide may be shown in evidence on the question of disposing mind.* 1 Coflfey V. Home L. Ins. Co. 44 How. Pr. 481 ; Phadenhauer v. Germanic L. Ins. Co. 7 Heiak. 567, 19 Am. Kep. 623; Moore v. Connecticut Mut. L. Ins. Co. 1 Flipp. 363, Fed. Cas. No. 9,755. SDuffleld V. Robeson, 2 Harr. (Del.) 375. 3 John Hancock Mut. L. Ins. Co. v. Moore, 34 Mich. 41 ; Mutual Ben. L. Ins. Co. V. Daviess, 87 Ky. 541, 9 S. W. 812; Phillips v. Louisiana Equitable L. Ins. Co. 26 La. Ann. 404, 21 Am. Rep. 549; Schultz v. V. Insurance Co. 40 Ohio St. 217, 48 Am. Rep. 676; Stormont v. Wa- terloo Life & Casualty Assur. Co. 1 Fost. & F. 22. * Goldschmidt v. Mutual L. Ins. Co. 102 N. Y. 486, 7 N. E. 408. 6 Phadenhauer v. Germania L. Ins. Co. 7 Heisk. 567, 19 Am. Rep. 623; Waters v. Connecticut Mut. L. Ins. Co. 2 Fed. 892. 6 Knickerbocker L. Ins. Co. v. Peters, 42 Md. 414. 'Brooks V. Barrett, 7 Pick. 94; Bey's Succession, 46 La. Ann. 773, 24 L.R.A. 577, 15 So. 297; Burrows v. Burrows, 1 Hagg. Eccl. Rep. 109; Mailey's Goods, 2 Swabey & T. 156, 31 L. J. Prob. N. S. 178, 4 L. T. N. S. 477, 7 Jur. N. S. 712. SGodden v. Burke, 35 La. Ann. 160; Frary v. Gusha, 59 Vt. 257, 9 Atl. 549. SPettitt V. Pettitt, 4 Humph. 191. 6. Presumption of continuance of insanity. a. Habitual insanity. — When habitual, chronic, or continuous insanity is once proved to exist, it is presumed to continue until the contrary is shown.* And the burden rests upon the party INSANITY. 575 asserting it of proving restoration or a lucid interval at the very time of the act in question.* But such presumption may be re- butted by proof of a change of mental condition or the existence of a lucid interval at the time of the act which is called in ques- tion.' And the fact that a party had formerly been insane is of no effect v?here it also appears that he had once recovered from it.* These rules apply to actions on contract. Thus, where a party to a contract is afflicted with insanity of a permanent na- ture, and such insanity is alleged as a defense to the contract, he who claims the performance must prove that it was entered into during a lucid interval,* or that he had recovered and was com- pos mentis.^ So, where general insanity on the part of the grantor is shown, it is presumed to continue to the time of the execution of the deed in question.'' And the burden of prov- ing his sanity at the time of the execution rests with the person ojBFering it in evidence or claiming under it.' The same doc- trine is applicable to wills and will contests.* iPike V. Pike, 104 Ala. 642, 16 So. 689; Duffield \. Eobeson, 2 Harr. (Del.) 375; Armstrong v. State, 30 Fla. 170, 17 L.R.A. 484, 11 So. 618; Dicken v. Johnson, 7 Ga. 484; Menkins v. Lightner, 18 111. 282; Rush V. Megee, 36 Ind. 69; Corbit v. Smith, 7 Iowa, 60, 71 Am. Dee. 431 ; Hawkins v. Grimes, 13 B. Mon. 257 ; Hadley v. Webster, 21 Me. 461; Wright v. Wright, 139 Mass. 177, 29 N. E. 380; Mullius v. Cottrell, 41 Miss. 291; Boylan v. Meeker, 28 N. J. L. 274; Rogers V. Wallcer, 6 Pa. 371, 47 Am. Dec. 470; Dexter v. Hall, 15 Wall., 9, 21 L. ed. 73; Smith v. Tebbitt, L. R. 1 Prob. & Div. 401, 36 L. J. Prob. N. S. 35, 15 L. T. N. S. 594, 15 Week. Rep. 562. 2 O'Donnell v. Rodiger, 76 Ala. 222, 52 Am. Rep. 322 ; Cubbage v. Cubbage, 1 Harr. (Del.) 461, note; Griffin v. Griffin, R. M. Charlt. (Ga.) 217; Emery v. Hoyt, 46 111. 258; Kenworthy v. Williams, 5 Ind. 375; Bever V. Spangler, 93 Iowa, 576, 61 N. W. 1072; Higgins v. Carlton, 28 Md. 115, 92 Am. Dec. 666; State v. Schaefer, 116 Mo. 96, 22 S. W. 447; Turner v. Gheesman, 15 N. J. Eq. 243; Jackson ex dem. Cadwell v. King, 4 Cow. 207, 15 Am. Dec. 354; Clark v. Fisher, 1 Paige, 171, 19 Am. Dec. 402; Harden v. Hays, 9 Pa. 151; Vance v. Upson, 66 Tex. 476, 1 S. W. 179; Jarrett v. Jarrett, 11 W. Va. 584; Hoge v. Fisher, Pet. C. C. 163, Fed. Cas. No. 6,585; Groom v. Thomas, 2 Hagg. Eccl. Rep. 433. SMullins V. Cottrell, 41 Miss. 291. 4 State V. Spencer, 21 N. J. L. 196; Snow v. Benton, 28 111. 306. 5 Emery v. Hoyt, 46 111. 258 ; Wade v. State, 37 Ind. 180. 6 Russell V. Lef rancois, 8 Can. S. C. 335 ; Ricketts v. Jolliff, 62 Miss. 540. 576 BRIEF OIT FACTS. T Rogers v. Walker, 6 Pa. 371, 47 Am. Dee. 470; Aurentz T. Anderson, 3 Pittsb. 310; Dicken v. Johnson, 7 Ga. 484. SBallew v. Clarke, 24 N. C. (2 Ired. L.) 23; Pike v. Pike, 104 Ala. 642, 16 So. 689; Jarrett v. Jarrett, 11 W. Va. 584; Hoge v. Fisher, Pet. C. C. 163, Fed. Caa. No. 6,585; Young v. Young, 10 Grant, Ch. (U. C.) 365. 9 Thus, where permanent insanity of a testator is established previous to the making of a will, its continuance is presumed. Kinloch v. Palmer, 1 Mill, Const. 216; Boylan v. Meeker, 28 N. J. L. 274. And proof that a testator a short time before making his will was afflicted with general and fixed insanity casts the burden of proof on those who support the will to show his restoration to sanity or a lucid interval at the time the will was made. O'Donnell v. Rodiger, 76 Ala. 222, 52 Am. Rep. 322; Griffin v. Griffin, R. M. Charlt. (Ga.) 217; Ken- worthy V. Williams, 5 Ind. 375; Halley v. Webster, 21 Me. 461; Goble V. Grant, 3 N. J. Eq. 629; Clark v. Fisher, 1 Paige, 171, 19 Am. Dec. 402; Harden v. Hays, 9 Pa. 151; Lee v. Lee, 4 M'Cord, L. 183, 17 Am. Dec. 722; Burton v. Scott, 3 Rand. (Va.) 399; Vance V. Upson, 66 Tex. 476, 1 S. W. 179. h. Temporary insanity. — Insanity -whicli is not shown to be settled or general, as contradistinguished from a mere tempo- rary aberration or hallucination, will not be presumed to con- tinue until the contrary is shown.^ And the fact of the exist- ence of a prior or subsequent lunacy, except where it is habitu- al, does not suffice to change the burden of proof.^ Fitful and exceptional attacks of insanity are not presumed to be continu- ous.* The maxim "Once insane, presumed to be always in- sane," does not apply where the malady or delusion under which the alleged insane person labored was in its nature accidental or temporary,* or the effect of some violent disease.^ 1 People V. Francis, 38 Cal. 183; Turner v. Rush, 53 Md. 65. 8 Hall V. Unger, 2 Abb. (U. S.) 507, Fed. Gas. No. 5,949: Dexter v. Hall. 15 Wall. 9, 21 L. ed. 73. SLeache v. State, 22 Tex. App. 279, 58 Am. Rep. 638, 3 S. W. 539: Ward V. State, 19 Tex. App. 664; Ford v. State, 71 Ala. 385. 4Townshend v. Townshend, 7 Gill, 10. 6Hix V. Whittemore, 4 Met. 545; Staples v. Wellington, 58 Me. 453: Rich- ardson V. Smart, 65 Mo. App. 14; Webb v. State, 5 Tex. App. 596. c. Alcoholism and alcoholic insanity. — Drunkenness is tem- porary unsoundness of mind which does not draw after it any INSANITY. 577 presumption of continuance.^ And long-continued inebriety, although resulting in occasional fits of insanity, does not require proof of a lucid interval to give validity to the acts of a drunk- ard as is required where insanity is proved.^ And insanity from intemperance is generally of a temporary kind and fol- lowed not simply by lucid intervals but by permanent restora- tion of reason, and to such insanity therefore the presumption of continuance does not apply.' And proof of instances of longer or shorter duration of incapacity from drunltenness will not disturb the legal presumption of a testator's capacity or shift the burden of proof of capacity to the proponent of the will.* So, proof that a testator about the time of the execution of his will was addicted to the habitual use of intoxicating liquors to such an extent that he was occasionally drunk is not sufficient to render it incumbent upon the proponents to show that at the time of its execution he was free from incapacitating intoxication.^ But when alcoholism has produced permanent •derangement, it is presumed to continue, and proof of a lucid interval is necessary to give validity to the subsequent acts of the party.® 1 State V. Reddick, 7 Kan. 143 ; Rather v. State, 25 Tex. App. 624, 9 S. W. 69. s Gardner v. Gardner, 22 Wend. 526, 34 Am. Dee. 340; Lee's Case, 46 N. J. Eq. 193, 18 Atl. 525. ^Duffleld V. Robeson, 2 Harr. (Del.) 375. 4 Black V. Ellis, 3 Hill, L. 68. SElkinton v. Brick, 44 N. J. Eq. 154, 1 L.R.A. 161, 15 Atl. 391. '6 Gardner v. Gardner, 22 Wen. 526, 34 Am. Dec. 340; State v. Potts, 100 N. C. 457, 6 S. E. 657; Cochran's Will, 1 T. B. Mon. 263, 15 Am. Dec. 116. d. Presumption of contiruwunce of a lucid interval. — A lucid interval is in its nature temporary and uncertain in its dura- tion, and there is no legal presumption of its continuance.^ And the fact that a testator proved to be insane had lucid in- tervals on the morning of, and before, the execution of his will does not shift the burden of proof to the contestant to es- tablish that he was not in a lucid state when he executed the instrument, as it rests with the proponent to prove a lucid in- Abb. Facts — 37. 578 BEIEB" OIT FACTS, terval at the very moment of its execution.* It has been held, however, that where a lucid interval is established upon the part of a grantor who was previously insane a short time be- fore the execution of his deed, the burden is thereby placed upon the party claiming insanity to show that he had again become insane at the time the deed was executed.^ 1 Pike V. Pike, 104 Ala. 642, 16 So. 689. 2 Saxon V. Whitaker, 30 Ala. 237. 3 Wright V. Jackson, 59 Wis. 569, 18 N. W. 486. e. Nature of the presumption.- — The presumption that in- sanity continues is not a presumption of law, but an inference of fact varying with the circumstances of the case.^ And the question whether a delusion is temporary or habitual is one ex- clusively within the province of the jury.* 1 Manley v. Staples, 65 Vt. 370, 26 Atl. 630 ; Missouri P. R. Co. v. Brazzil, 72 Tex. 233, 10 S. W. 403; Fay v. Burditt, 81 Ind. 435, 42 Am. Rep. 142; Webb v. State, 5 Tex. App. 596. STownshend v. Townshend, 7 Gill, 10. II. Opinion Evidence. 7. Expert opinions. a. Admissibility generally. — The opinions of medical experts and experts with relation to mental disease are admissible in evidence generally on an issue as to sanity or insanity.* And they may be based upon symptoms and circumstances which come within their own observation or as testified to by others, or upon hypothetical statements or questions assuming their exist- ence.^ And the testimony of a medical expert examined in a for- mer trial of the same cause as to the sanity or insanity of the maker of notes is admissible in evidence on a subsequent trial.* Medical men are allowed to give their opinions on an issue of sanity or insanity because they are supposed by their study and practice to understand the symptoms of insanity and to possess peculiar knowledge on that subject.* They are received because the facts are of such a character that they cannot be weighed or understood by the jury, the expert giving his opinion as to INSANITY. 579 what they do or do not indicate.® But expert testimony as to insanity is to be received with eantion and subject to patient and intelligent investigation.* And the opinions of witnesses are never received as evidence where all the facts upon which such opiiiior"^ are founded can be ascertained and made intelligible to the c urt or jury.' And it is not an abuse of discretion for the court in a will contest to limit the number of expert witnesses upon the question of insanity to five upon each side.' •Jamison v. Jamison, 3 Houst. (Del.) 108; Potts v. House, 6 Ga. 324, 50 Am. Dec. 329; Baxter v. Abbott, 7 Gray, 71; People v. Finley, 38 Mich. 482; Clarke v. Sawyer, 3 Sandf. Ch. 351; Gibson v. Gibson, 9 Yerg. 320; Charter Oak L. Ins. Co. v. Rodel, 95 U. S. 232, 24 L. ed. 433. 2 Potts V. House, 6 Ga. 324, 50 Am. Dee. 329; Pidcock v. Potter, 68 Pa. 342, 8 Am. Rep. 181; McAllister v. State, 17 Ala. 439, 52 Am. Dec. 180; Boardman v. Woodman, 47 N. H. 120. s First Nat. Bank v. Wirebach, 106 Pa. 37. * Lake v. People, 1 Park. Grim. Rep. 495. B People V. Young, 151 N. Y. 210, 45 N. E. 460. 6 Wilcox V. State, 94 Tenn. 106, 28 S. W. 312. 'Clark V. Fisher, 1 Paige, 171, 19 Am. Dee. 402. SFraser v. Jennison, 42 Mich. 206, 3 N. W. 882. h. Privilege of witnesses. — The opinion of physicians as to the unsoundness of mind of a testator during a designated period, based on knowledge acquired by them while attending him respectively in a professional capacity, is objectionable within the prohibition against divulging professional communi- cations.^ The fact that a medical expert was the jail physician of the jail into which a person accused of crime was confined, however, does not create the relation of patient and physician between him and the accused so as to exclude his opinion in a prosecution for a criminal act, in the absence of proof that the accused was at any time sick during his confinement or that the witness ever attended or prescribed for him, or that he derived any of the information upon which his opinion could be based while attending him as a physician.^ And the opinion of a medical expert based on an examination made for the people under employment by the district attorney for the purpose of the prosecution is not subject to the objection that it was based 580 BEIEF ON FACTS, upon information acquired in attending a patient in a profes- • sional capacity.' The general rule is that the privilege of a physician under statutes prohibiting the disclosure of confidential communica- tions may be waived by the persons interested.* But the execu- tor or administrator of a party cannot waive the privilege of the deceased party given by iN". Y. Code Civ. Proc. § 834, pro- hibiting a practising physician from disclosing information acquired by him in a professional capacity so as to pennit him to give evidence on the issue of the mental capacity of the de- ceased.* iRe Coleman, 111 N. Y. 220, 19 N. E. 71; Ee Connor, 27 N. Y. S. E. 905, 7 N. Y. Supp. 855; Renihan v. Dennin, 103 N. Y. 574, 57 Am. Eep. 770, 9 N. E. 320; Heuston v. Simpson, 115 Ind. 62; 7 Am. St. Eep. 409, 17 N. E. 261; Ee Goldthorp, 94 Iowa, 336, 58 Am. St. Eep. 400, 62 N. W. 845. 2 People V. Schuyler, 106 N. Y. 298, 12 N. E. 783. 3 People V. Hoch, 150 N. Y. 291, 44 N. E. 976 ; People v. Kemmler, 119 N. Y. 580, 24 N. E. 9. * Denning v. Butcher, 91 Iowa, 425, 59 N. W. 69; Eraser v. Jennison, 42 Mich. 206, 3 N. W. 882; Thompson v. Ish, 99 Mo. 160, J17 Am. St. Eep. 552, 12 S. W. 510. 5 Westover v. ^tna L. Ins. Co. 99 N. Y. 56, 52 Am. Eep. 1, 1 N. E. 104. c. From ohservation or examination. — ^An expert witness who has had opportunities of knowing and observing a person whose insanity is alleged may give an opinion as to his sanity or insanity based on knowledge obtained from such observa- tion.' Thus, the opinion of a physician who has long been ac- quainted with a testator and his habits, conduct, and conversa- tion is admissible in a proceeding to contest his will on the ground of mental incapacity.^ So, an expert witness in a will contest who has testified fully as to his knowledge of the tes- tatrix may give his opinion as to her sanity based upon his own knowledge, such knowledge consisting of the facts which she has already stated.' But, while medical experts may give their opinions as to the testator's sanity in a will contest where they are based upon observation or examination, they must give the symptoms or circumstances from which they draw their INSANITY. 581 conclusions.* And depositions of physicians stating their opin- ion that a party was insane will b'e rejected where the deponents state no facts on which they ground their opinions.' 1 McAllister t. State, 17 Ala. 434, 52 Am. Deo. 180; People v. Wood, 126 N. Y. 251, 27 N. E. 362. 2 Bitner v. Bitner, 65 Pa. 347 ; Rice v. Rice, 53 Mich. 432, 19 N. W. 132. 8 Foster v. Dickerson, 64 Vt. 233, 24 Atl. 253; Puryear v. Reese, 6 Coldw. 21. * Gibson v. Gibson, 9 Yerg. 329 ; Puryear v. Reese, 6 Coldw. 21. 6 Dickinson v. Barber, 9 Mass. 225, 6 Am. Dec. 58; White v. Bailey, 10 Mich. 155; Hathorn v. King, 8 Mass. 371, 5 Am. Dec. 106. d. From the evidence. — The general rule is that an expert witness in an action involving the question of insanity who has heard all the testimony given on the part of the defendant on that question may be asked his opinion upon the hypothesis that the testimony given by the witnesses is all true,' though he has not seen the patient.^ And men of medical skill who have no personal knowledge of the facts may be asked their opinions whether certain appearances detailed by other witnesses are symptoms of insanity.' And testimony of medical experts as to the sanity or insanity of a testator is admissible though their opinions are based on facts proved in the case, and not upon facts known to the witnesses themselves.* But the opinion of an expert upon the question of sanity is not admissible where he had heard only a part of the testimony given by one of several witnesses and the opinion was based upon the testimony thus read and upon a newspaper account of the other testimony.* So, medical experts will not be allowed to determine from the evidence what the facts are and give their opinions from them.* A rule contrary to the general rule stated above, however, has been adopted by a few of the cases which hold the doctrine that the opinions of expert witnesses on the question of sanity or insanity founded on testimony already in the case can only be given on a hypothetical case.' 1 Negroes, Jerry v. Townshend, 9 Md. 145 ; State v. Windsor, 5 Harr. (Del.) 512; Schneider v. Manning, 121 111. 376, 12 N. E. 267; State V. Potts, 100 N. C. 457, 6 S. E. 657; McAllister v. State, 17 Ala. 434, 52 Am. Dec. 180; Yardley v. Cuthbertson, 108 Pa. 395, 56 Am. Rep. 582 BEIEF ON FACTS. 218, 1 Atl. 765 ; Pidcoek v. Potter, 68 Pa. 342, 8 Am. Eep. 181 ; Foster V. Dickerson, 64 Vt. 233, 24 Atl. 253 ; Eex v. Searle, 1 Moody & E. 75 ; Rex V. Wright, Ruas. & R. C. C. 456. 2 State V. Windsor, 5 Harr. (Del.) 512. 3 Doe ex dem. Sutton v. Reagan, 5 Blackf. 217, 33 Am. Dec. 466; Rex v. Searle, 1 Moody & R. 75. 4 Vance v. Upson, 66 Tex. 476, 1 S. W. 179; Kempsey v. McGinniss, 21 Mich. 123. s Williams v. State, 37 Tex. Grim. Rep. 348, 39 S. W. 687. 6 Dexter v. Hall, 15 Wall. 9, 21 L. ed. 73. TMcMechen v. McMechen, 17 W. Va. 683, 41 Am. Rep. 682; McCarty v. Com. 14 Ky. L. Rep. 285, 20 S. W. 229; Doe ex dem. Bainbrigge v. Bainbrigge, 4 Cox, C. C. 454; Price v. Richmond & D. R. Co. 38 S. C. 199, 17 S. E. 732; Woodbury v. Obear, 7 Gray, 467. e. On hypothetical questions or statements. — (1) Admissi- bility. — Witnesses who are experts upon the question of mental condition may give their opinions on an issue as to sanity upon a liypothetical question or statement of facts established by other evidence.' And an expert witness in a proceeding de lunatico inquirendo may answer a hypothetical question based in part upon proved facts and in part upon the testimony of other wit- 1 Pittard v. Foster, 12 111. App. 132 ; Massie v. Com. 15 Ky. L. Rep. 562, 24 S. W. 611; Choice v. State, 31 Ga. 424; Pidcoek v. Potter, 68 Pa. 342, 8 Am. Rep. 181; Lake v. People, 1 Park. Crim. Eep. 495; Hath- away V. National L. Ins. Co. 48 Vt. 336; Dexter v. Hall, 15 Wall. 9, 21 L. ed. 73. 2 Re Mason, 60 Hun, 46, 14 N. Y. Supp. 434. (2) Hypothesis; upon what hosed. — A hypothetical ques- tion as to mental condition addressed to an expert witness should embrace all the facts of the case when there is no dis- pute as to such facts, and the witness should take them all into consideration in giving his answer. "^ And a hypothetical case submitted for the opinion of an expert upon the question of in- sanity in a will case containing only a partial statement of the material evidence adduced should be excluded.^ In putting hypothetical questions to expert witnesses upon the question of mental capacity, however, counsel may assume the facts in ac- cordance with their theory, and it is not essential that they ' ite INSANITY. 583 the facts as they exist, but the hypothesis should he based on a state of facts which the evidence tends to prove.' Keeping with- in the range of the relevant testimony, they need not embody in the question all the matters of which there is any evidence.* But they cannot be based on mere conjecture.' The attention of the expert may be called to such facts as are claimed by one party to show sanity and his opinion taken as to whether the existence of these facts, together with those claimed to have been proved by the other party, is inconsistent with the claim of sanity.^ 1 Davis V. state, 35 Ind. 496, 9 Am. Eep. 760; Re Miller, 26 Pittsb. L. J. N. S. 428; Hathaway v. National L. Ins. Co. 48 Vt. 336. 2 McCullough's Will, 35 Pittsb. L. J. 169. 3 Kerr v. Lunsford, 31 W. Va. 680, 2 L.E.A. 668, 8 S. E. 493; Bever v. Spangler, 93 Iowa, 576, 61 N. W. 1072. 4 Goodwin v. State, 96 Ind. 550; People v. Hill, 116 Cal. 562, 48 Pac. 711. 5 Kelly V. Perrault, 5 Idaho, 221, 48 Pac. 45. ■sPrentis v. Bates, 93 Mich. 234, 17 L.R.A. 494, 53 N. W. 153. (3) Evidence in support of hypothesis. — A witness cannot testify as an expert in answer to a hypothetical question on the issue of mental soundness unless there is evidence tending to prove the matters stated in the hypothetical question.* Thus, the evidence as to the mental incapacity of a testatrix, of dis- tinguished alienists who had never seen her and only pronounced her demented on the assumption of the truth of certain hypothe- ses touching her character and conduct, was rejected upon the ground that the hypotheses were not proved to be well founded.^ But, while hypothetical questions to experts upon the question •of insanity should be based upon facts which the evidence tends to prove, technical accuracy is not required and the questions need not be based upon conceded facts.' 1 Bomgardner v. Andrews, 55 Iowa, 638, 8 N. W. 481 ; Meeker v. Meeker, 74 Iowa, 352, 7 Am. St. Eep. 489, 37 N. W. 773; Hovey v. Chase, 52 Me. 305, 83 Am. Dec. 514; Re Lyddy, 24 N. Y. S. R. 607, 5 N. Y. Supp. 636; Prather v. McClelland, 76 Tex. 574, 13 S. W. 543. 2 Cornwell v. Eiker, 2 Dem. 354. 3 Meeker v. Meeker, 74 Iowa, 352, 7 Am. St. Rep. 489, 37 N. W. 773. (■4) Form of question. — Where the opinion of a medical ex- TlSi BRIEF OIT FACTS. pert on an issue of sanity or insanity is based on testimony al- ready in the case, the hypothesis must be clearly stated, so that the jury may know with certainty upon precisely what state of assumed facts the expert bases his opinion.^ Thus, after enum- erating a great number of facts as to the basis for a hypothetical question, it is improper to incorporate the entire testimony of the witnesses without stating that it is to be considered in con- nection with the other facts and propositions named.* And the hypothetical question must be so framed as fairly to reflect the facts admitted or proved by other Avitnesses.' 1 McMechen v. McMechen, 17 W. Va. 683, 41 Am. Rep. 682. 2 Barber's Appeal, 63 Conn. 393, 22 L.R.A. 90, 27 Atl. 973. SBurgo V. State, 26 Neb. 639, 42 N. W. 701; Ballard v. State, 19 Neb. 610, 28 N. W. 271. /. Qualifications of experts. — Only persons of scientific training upon the subject and medical men are to be regarded as experts.'' Thus, a minister of the Gospel who has read some authorities on moral and intellectual science, but nothing on insanity or medical jurisprudence, is not qualified as an expert to give his opinion as to sanity or insanity.* But a Catholic priest regularly educated and who had officiated as a priest for ten years, and part of whose preparatory education was to be- come competent to pass upon the mental condition of communi- cants in his church to the end that the rites of his church ad- ministered to invalids or dying persons might be administered to persons ascertained to be in a proper state of reason, and who was daily required to exercise and pass his judgment upon the mental condition of such persons, is an expert who may give his opinion as to sanity or insanity of a testator in a will contest.* And proof that a witness in a will contest had been a nurse in an insane asylum for many years and had had extended experience in nursing the insane in private houses and in large institu- tions, and that she had conversed with the testatrix for an hour or two at a time on three different occasions, is sufficient to lay a foundation for her opinion as to the sanity or insanity of the testatrix.* And physicians who have been practising their ])rofessioa for a number of years and who have given the sub- INSANITY. 585 ject of medical jurisprudence some attention by reading works on the subject and by attending lectures, may testify on the question of the existence of the disease of insanity.* So, a regular and continuous practice by a physician in his profession for thirty years entitles him to be regarded as an expert on questions of mental soundness or unsoundness.^ 1 Com. V. Erayman, 136 Mass. 438. 8 Burt V. State, 38 Tex. Crim. Rep. 397, 39 L.E.A. 305, 330, 40 S. W. 1000, 43 S. W. 344. s Toomes's Estate, 54 Cal. 509, 35 Am. Eep. 83. 4 Foster v. Dickerson, 64 Vt. 233, 24 Atl. 253. 5 Davis V. State, 35 Ind. 496, 9 Am. Eep. 760. SFlynt V. Bodenhamer, 80 N. C. 205. And a physician of experience who had been the medical adviser of tes- tator and practised for many years in his neighborhood, and who saw and conversed with him a, short time before the making of his will, is competent to give his opinion as to the testator's sanity, though he had not made mental diseases a special study. Baxter V. Abbott, 7 Gray, 71; Hastings v. Eider, 99 Mass. 624. So, the rule has been laid down that physicians and surgeons of prac- tice and experience are experts upon the question of sanity or in- sanity, and that it is not necessary that they should have made the particular disease involved in the inquiry a specialty to render their testimony admissible as that of an expert. Hathaway v. National L. Ins. Co. 48 Vt. 336. Upon the other hand, however, it has been held that to render an opinion admissible on the question of sanity or insanity, it is essential that the witness should be an expert on the general subject under con- sideration, and that no acquaintance with cognate pursuits will suf- fice, unless the matter inquired about is common to both. Russell v. State, 53 Miss. 367. And the opinion of a witness called as an expert upon the question of sanity or insanity may be excluded where he testifies that he has not made diseases of the mind a special study, but only as a general practitioner. Hutchins v. Ford, 82 Me. 363, 19 Atl. 832. g. Cross-examination; contradiction. — ^An expert witness upon an issue of mental soundness who has expressed an opinion based upon facts assumed by the party calling him to have been proved or upon a hypothetical case put by such party may be cross-examined by taking his opinion based on any other state of facts assumed by the cross-examiner to have been proved 586 BRIEF OH FACTS. upon a hypothetical case.* And the proponents of a will are not confined to the use of the same hypothetical questions which the contestant had used.^ So, expert witnesses on the question of sanity may be cross-examined on purely imaginary and ab- stract questions assuming facts and theories which have or have not foundation in evidence.' But an expert witness in a pro- ceeding to set aside a deed whose testimony on direct examina- tion was confined to a contradiction of the theory of another expert called by the other side cannot be asked on cross-exam- ination a hypothetical question in all respects similar to the questions propounded by the cross-examination to his own wit- nesses.* And a medical book stated by an expert upon the ques- tion of sanity to be an authority cannot be read in evidence for the purpose of contradicting the evidence of an expert witness given upon cross-examination.^ 1 Davis V. state, 35 Ind. 496, 9 Am. Rep. 760; Grubb v. State, 117 Ind. 277, 20 N. E. 257, 725; People v. Lake, 12 N. Y. 358. 8 Foster v. Diokerson, 64 Vt. 233, 24 Atl. 253. SBever v. Spangler, 93 Iowa, 576j 61 N. W. 1072; People v. Augsbury, 97 N. Y. 501. 4Gridley v. Boggs, 62 Cal. 190. 8 MacFarland's Trial, 8 Abb. Pr. N. S. 57. h. Weight. — (1) In general. — While the opinions of med- ical experts upon an issue of sanity or insanity should be con- sidered by the jury in connection with all the other evidence of the case, they are not bound to act upon them to the exclusion of the other testimony.* They stand substantially on the same footing as any other witness as to credibility.^ The opinions of professional men on the question of insanity, however, are frequently entitled to great weight,' particularly where they had special opportunities for observation,* or where they at- tended him or were with him constantly during the time the weakness of mind was charged.' iGuetig V. State, 66 Ind. 94, 32 Am. Rep. 99; McAllister v. State, 17 Ala. 434, 52 Am. Dec. 180; Williams v. State, 50 Ark. 511, 9 S. W. 5; Choice v. State, 31 Ga. 424. Thus, the opinions of medical experts are not conclusive in a will eon- test on the ground of mental incapacity, but must be weighed as any INSANITY, 587 other evidence. Chandler v. Barrett, 21 La. Ann. 58, 99 Am. Dec. 701; Re Kiedaisch, 2 Connoly, 438, 13 N. Y. Supp. 255. So, the court will not be controlled by the opinions of experts in passing upon the question of mental capacity in an action for interdiction, but will give to them a respectful consideration and also give legiti- mate weight to every act bearing on the issue, and form its decree from its own conclusions. Francke v. His Wife, 29 La. Ann. 302. And the opinion of medical men who gave certificates upon which a party to a contract was confined as an insane person at or about the time of the making of the contract is evidence only upon tlie question of his insanity at that time, but is not conclusive, and the jury must judge of the grounds upon which such opinion is formed. Lovatt v. Tribe, 3 Fost. & F. 9. 2 Eggers V. Eggers, 57 Ind. 461. 3Com. V. Rogers, 7 Met. 500, 41 Am. Dec. 458; Pannell v. Com. 86 Pa. 260; Nicholas >'. Kershner, 20 W. Va. 251. 4 Cheatham v. Hatcher, 30 Gratt. 56, 32 Am. Rep. 650; Montague v. Allan, 78 Va. 592, 49 Am. Rep. 384. 5 Jarrett v. Jarrett, 11 W. Va. 584. (2) As affected by facts and opportunity to ohserve. — The reliance to be placed upon the opinion of an expert witness on a question of sanity or insanity depends upon the means of judging of the true mental condition of a person and the facts upon which his opinion is based.* His opinion can be of no value when the facts upon which it is predicated are not estab- lished.^ And an opinion of an expert based upon a hypothesis wholly incorrect or incorrect in its material facts to such an extent as to impair the value of the opinion is of little or no weight.^ So, the abstract opinions of witnesses, whether pro- fessional or otherwise, will not justify a decision against the capacity of a testator to make a will, since opinions of witnesses must be brought to the test of facts that the court may judge what weight the opinion is entitled to.* 1 People v. Lake, 2 Park. Crim. Rep. 215; Gay v. Union Mut. L. Ins. Co. 9 Blatchf. 142, Fed. Cas. No. 5,282. z First Nat. Bank v. Wirebaeh, 106 Pa. 37. 3Guetig V. State, 66 Ind. 94^ 32 Am. Rep. 99. 4Stackhou3e v. Horton, 15 N. J. Eq. 202. Where the mental capacity of a testator is thoroughly established by the evidence, other thaji hypothetical reasoning of experts, their mere speculation on the subject would be entitled to little weight. Rankin V. Rankin, 61 Mo. 295. 688 BEIEF ON FACTS. And a will will not be declared invalid against strong afBrmative testi- mony in its favor on the bare opinion of medical men that there was want of testamentary capacity at the time it was made, based upon the argument that the testator's disease was one that more or less affects the brain. Palmer's Estate, 5 W. N. C. 542. So, the court in a will contest is not bound by the opinion of an expert as to the mental capacity of the testatrix, where such opinion is based on reasons which are absurd or are not well founded. Crockett V. Davis, 81 Md. 134, 31 Atl. 710. (3) As ajfected by character, bias, and nature of the ques- tion. — Where opinions of witnesses are received on the question of sanity or insanity from the necessity of the case their weight will not depend so much upon the number as upon the intel- ligence of the witnesses, and their capacity to form correct opinions, their means of information, the unprejudiced state of their minds, and the nature of the facts testified to in sup- port of their opinions.^ Thus, while medical witnesses may testify as to the effect of disease on the mind and give their opinions on the question of testamentary capacity, and their opinions are usually entitled to consideration and respect, the value of such testimony depends upon the professional character, integrity, skill, and standing of the witness.^ So, the jury in a will contest upon the ground of mental incapacity should consider whether the testimony of expert witnesses is partisan in its character or biased by any leanings for or against any of the parties.^ 1 Clark V. Fisher, 1 Paige, 171, 19 Am. Dec. 402. 2 Jamison v. Jamison, 3 Houst. (Del.) 108; Gay v. Union Mut. L. Ins. Co. 9 Blatchf. 142, Fed. Cas. No. 5,282. 3 Rush V. Megee, 36 Ind. 69. (4) As compared with other expert opinions. — The opinion of a physician who attended a testator during his last illness is entitled to more weight on the question of testamentary capacity than the opinions of physicians who had not this advantage.'' And the opinion of a medical expert that a testa- tor was insane and incompetent to make a will and had been so for some time will not be held to invalidate the will, though he was an expert of high authority, where his opinion seemed INSANITY. 589 to be that any insanity would be sufficient to invalidate it, and the testator's family physician who visited him many times during such period saw no indication of unsoundness of mind or mental disorder, and the testator attended to his own affairs then and afterwards in an intelligent manner.* 1 Harrison v. Rowan, 3 Wash. C. C. 580, Fed. Gas. No. 6,141; Kirkwood V. Gordon, 7 Rich. L. 474, 62 Am. Dec. 418; Whelpley v. Loder, 1 Dem. 368. It was held in Sever v. Spangler, 93 Iowa, 576, 61 N. W. 1072, however, that the evidence of experts in a will contest who knew the testa- tor and had treated him cannot be said to be entitled to greater weight, as a matter of law, than that of experts who founded their opinions simply. upon hypothetical questions. 2 Re Blakely, 48 Wis. 294, 4 N. W. 337. (5) As compared with nonexpert opinions. — The rule has been laid down that on questions of sanity or insanity proof made by expert witnesses who have devoted their time and at- tention to cases of mental derangement is of much greater value than that of other persons who have no scientific or experimental knowledge of the subject and who can only speak from observa- tion from outward signs and appearances,^ and that in marshal- ing evidence of insanity, the greater weight should be given to the judgment of medical experts and those closely associated with the party claimed to be insane, rather than to other wit- nesses.* And professional opinions, in the absence of over- ruling facts, are entitled to credence on the question of capacity to make a testamentary disposition as against mere opinions of nonexperts unsupported by concurrent facts which have any legitimate weight.^ Jurors are not bound, however, to give more weight to the testimony of medical experts than to that of non- expert witnesses who state facts within their own knowledge, and it is not for the court to pronounce, as a matter of law, which of the two classes shall receive greater weight.* 1 State V. Eeidell, 9 Houst. (Del.) 470, 14 Atl. 550; Watson v. Anderson, 13 Ala. 203. 2 Com. ex rel. Helmbold v. Kirkbride, 11 Phila. 427. 3 Hendrix v. Money, 1 Bush, 306. 4 Sanders v. State, 94 Ind. 147. 590 BEIEF ON FACTS. (6) As a question for the jury. — The opinion of an expert witness as to the sanity of another is a fact bearing upon that question, the proper weight of which falls within the province of the jury to determine.* And to charge that expert witnesses speaking merely as to matters of opinion and basing their opin- ions upon hypothetical questions are entitled to more credit than witnesses who had knowledge of facts gathered from per- sonal observation and who based their opinions on actual facts, would be an invasion of the province of the jury.^ So, a jury in a will contest in which the question of sanity is at issue should not be told that common experience has shown that opinions of professional witnesses upon the question of insanity have be- come of little practical value from the almost universal conflict between those called upon the different sides as compared vrith testimony consisting of acts and sayings of the testator.' iKempsey v. McGinnis, 21 Mich. 123; Davis v. State, 35 Ind. 496, 9 Am. Eep. 760; Gay v. Union Mut. L. Ins. Co. 9 Blatchf. 142, Fed. Gas. No. 5,282; Flynt v. Bodenhamer, 80 N. C. 205. 2 Goodwin v. State, 96 Ind. 550. And see Brown v. Kiggin, 94 111. 560; Carpenter v. Calvert, 83 111. 62. SBurney v. Torrey, 100 Ala. 157, 46 Am. St. Rep. 33, 14 So. 685; Eggers V. Eggers, 57 Ind. 461. For it. more extended treatment of the question as to expert opinions as to sanity or insanity, with a full review of the authorities, see note in 39 L.R.A. 305. 8. Nonexpert opinions generally. a. General rules. — The rule is laid down generally that opin- ions of nonexpert witnesses on the question of sanity or insanity are admissible in evidence where they state the facts and cir- cumstances upon which the opinions expressed by them are pred- icated.* Thus, the opinions of witnesses as to the sanity of the grantor may be given in evidence in an action involving the va- lidity of his deed where the facts upon which they are founded are also given.* So, nonexpert witnesses in a will contest may give their opinions as to the capacity or incapacity of the testa- tor where the facts or circumstances upon which they are found- ed are disclosed.' And the opinions of nonexpert witnesses as to the mental condition of the assured in an action upon an in- INSANITY. 591 surance policy at the time of connnitting suicide are admissible in connection with the statement of the facts and circumstances.* But a nonexpert witness will not be permitted to give an opin- ion as to the mental condition of another without first stating the facts upon which the opinion is based.'' The ground upon which the opinions of nonexpert witnesses are admitted is that, from the nature of the subject to be in- vestigated, it cannot he so described in language as to enable persons not eye witnesses to form a correct judgment in regard to it.' A different rule has been adopted in some states, in which it is held that ordinary witnesses, whatever their opportunities for observation may have been, cannot give mere opinions as to the mental condition of another.'' iBurney v. Torrey, 100 Ala. 157, 46 Am. St. Rep. 33, 14 So. 685; People V. Sanford, 43 Cal. 29; Grant v. Thompson, 4 Conn. 203, 10 Am. Dee. 119; Maxwell v. Harrison, 8 Ga. 67, 52 Am. Dec. 385; Hutchinson V. Hutchinson, 50 HI. App. 87;. Mills v. Winter, 94 Ind. 329; Parsons v. Parsons, 66 Iowa, 754, 21 N. W. 570, 24 N. W. 564; Baughman V. Baughman, 32 Kan. 538, 4 Pao. 1003; Stewart v. Eedditt, 3 Md. 67; Cannady v. Lynch, 27 Minn. 435, 8 N. W. 164; Farrell v. Bren- nan, 32 Mo. 328, 82 Am. Dec. 137 ; Hay v. Miller, 48 Neb. 156, 66 N. W. 1115; Carpenter v. Hatch, 64 N. H. 573, 15 Atl. 219; De Witt v. Early, 17 N. Y. 340; Price v. Richmond &, D. R. Co. 38 S. C. 199, 17 S. E. 732; Coekrill v. Cox, 65 Tex. 669; Morse v. Crawford, 17 Vt. 502, 44 Am. Dee. 349. 2 Doe ex dem. Sutton v. Reagan, 5 Blackf. 217, 33 Am. Dec. 466; Frizzell V. Reed, 77 Ga. 724; Stumph v. Miller, 142 Ind. 442, 41 N. E. 812; Woodcock V. Johnson, 36 Minn. 217, 30 N. W. 894; Culver v. Haslan, 7 Barb. 314; Barker v. Pope, 91 N. C. 165; Eleesser v. Elcesser, 146 Pa. 359, 23 Atl. 230. S Abraham v. Wilkins, 17 Ark. 292; Re Brooks, 54 Cal. 471; Shanley's- Appeal, 62 Conn. 325, 25 Atl. 245; Walker v. Walker, 14 Ga. 242; Roe V. Taylor, 45 111. 485; Leach v. Prebster, 39 Ind. 492; Re Norman, 72 Iowa, 84, 33 N. W. 374; Wise v. Foote, 81 Ky. 10; Williams v. Lee, 47 Md. 321; Carpenter v. Hatch, 64 N. H. 573, 15 Atl. 219; Bost V. Bost, 87 N. C. 477; Shaver v. McCarthy, 110 Pa. 339, 5 AtL 614; Jamison v. Jamison, 3 Houst. (Del.) 108; Garrison v. Blanton, 48 Tex. 299; Fishburne v. Ferguson, 84 Va. 87, 4 S. E. 575. 4 Connecticut Mut. L. Ins. Co. v. Lathrop, 111 U. S. 612, 28 L. ed. 536, 4 Sup. Ct. Rep. 533; Mutual L. Ins. Co. v. Leubrie, 38 U. S. App. 37, 18 C. C. A. 332, 71 Fed. 843; Charter Oak L. Ins. Co. v. Rodell, 95 U. S. 235, 24 L. ed. 433. 592 BRIEF ON PACTS. s Pennsylvania Co. v. Newmeyer, 129 Ind. 401, 28 N. E. 860; State v. Pennyman, 68 Iowa, 216, 26 N. W. 82; Rariok v. Ulmer, 144 Ind. 25, 42 N. E. 1099; Roberts v. Trawick, 13 Ala. 68; Sheehan v. Kearney, 82 Miss. 688, 35 L.R.A. 102, 21 So. 41; Dickinson v. Dick- inson, 61 Pa. 401. 6 Culver V. Haslam, 7 Barb. 314; Clifton v. Clifton, 47 N. J. Eq. 227, 21 Atl. 333; Pelamourges v. Clark, 9 Iowa, 1; Appleby v. Brock, 76 Mo. 314. 7 Massachusetts. — Williams v. Spencer, 150 Mass 346, 5 L.R.A. 790, 15 Am. St. Rep. 206, 23 N. E. 105; Cowles v. Merchants, 140 Mass. 377, 5 N. E. 288; Com. v. Wilson, 1 Gray, 337. Maine.— Hewett v. Hurley, 88 Me. 431, 34 Atl. 274; Wyman v. Gould, 47 Me. 159. New York.— Brady v. Smith, 8 Misc. 465, 28 N. Y. Supp. 776; Re Folts, 71 Hun, 492, 24 N. Y. Supp. 1052; Hewlett v. Wood, 55 N. Y. 634; Clapp V. Fullerton, 34 N. Y. 190, 90 Am. Dec. 681; Johnson v. Coch- rane, 91 Hun, 165, 36 N. Y. Supp. 283. Nonexpert witnesses may, however, testify to facts, declarations, and incidents in relation to the person tending to show unsoundness or soundness of mind and as to whether the acts and declarations tes- tified to impressed them as rational or irrational. Paine v. Aldrich, 133 N. Y. 544, 30 N. E. 725; Holcomb v. Holcomb, 95 N. Y. 316; Rider v. Miller, 86 N. Y. 507; Howell v. Taylor, 11 Hun, 214; White v. Davis, 42 N. Y. S. R. 901, 17 N. Y. Supp. 548. b. Who may give. — The general rule is that anyone who had an opportunity of knowing and observing a person whose sanity is impeached may give an opinion as to his mental capa- city whether he was an attesting witness or not.^ This rule applies to persons who were parties to the suit where parties are permitted to testify.* And a legatee under a will is a com- petent witness in an action to set aside a will, as to mental con- dition of the testator.' So, the contestants of a will are com- petent.* And an opinion may be expressed by a caveatrix as to the sanity of testatrix,* or by the guardian of a testatrix.* A brother,'' or a daughter,' of a testator may give an opinion as to his mental capacity. So, a wife may testify as to the mental condition of her husband and give an opinion as to his sanity when accompanied by a statement of the facts upon which it is based.^ It has been held, however, that one who would inherit a part of a testator's property but for his will is incompetent to give his opinion as to his capacity to make it.^" And the daughters of a testator are not competent witnesses INSANITY. 593 on their own behalf to prove the insanity of their father upon a bill in equity to contest the validity of his v?ill.'^ 1 Doe ex dem. McDougald v. McLean, 60 N. C. (1 Winst. L.) 120. 2 Severin v. Zack, 55 Iowa, 28, 7 N. W. 404. 3Staser v. Hogan, 120 Ind. 227, 21 N. B. 911, 22 N. E. 990; Denning v. Butcher, 91 Iowa, 425, 59 N. W. 69. 4 Williams y. Williams, 90 Ky. 28, 13 S. W. 250. 6 Dennis v. Weekes, 51 Ga. 24. 6 Howard v. Coke, 7 B. Mon. 655. TWeems v. Weems, 19 Md. 334. 8 Moore v. Moore, 67 Mo. 192. aHaney v. Clark, 65 Tex. 93; Denning v. Butcher, 91 Iowa, 425, 59 N. W. 69. 10 Kerr v. Lunsford, 31 W. Va. 680, 2 L.R.A. 668, 8 S. B. 493. 11 Brace v. Black, 125 111. 33, 17 N. E. 66. c. Acquaintance ne.ressary. — It is impossible to lay doAVB any precise rule as to the length or character of an acquaintance •which will render the opinion of a witness admissible on the issue of sanity or insanity.^ It is generally stated that nonexpert witnesses may testify as to their opinions upon the sanity or in- sanity of another where there has been long and intimate ac- quaintance to enable them to form a correct judgment as to the mental condition of such person.^ Within this rule, a non- expert who is well acquainted with another may give his opin- ion as to whether or not he was a person of feeble mind.* And he may be asked his opinion from the facts stated by him as to the health and mental condition of the party.* So, the rule has been stated that nonexperts having favorable opportunities for ascertaining by observation the facts may testify as to their opinion respecting the sanity of another.^ But a nonexpert cannot give his opinion as to the sanity of another based on actual observation where he has no particular acquaintance with him,® or but a mere passing acquaintance,'' or where he ap- peared to have had no opportunities for forming an opinion.' The question whether the opinions of nonexperts as to the sanity of another were based upon sufficient observation to entitle them to testify is addressed to the discretion of the trial judge.^ And the determination as to whether a witness called to testify to the mental condition of a person had a sufficiently Abb. Facts — 38. 594 BRIEF ON- FACTS. intimate acquaintance with him to render his opinion admissible will not be interfered with on appeal where there was no abuse.'"* 1 Powell V. State, 25 Ala. 21. 2 Burney v. Torrey, 100 Ala. 157, 46 Am. St. Rep. 33, 14 So. 685 ; Foun- tain V. Brown, 38 Ala. 72 ; Polin v. State, 14 Neb. 540, 16 N. W. 898 ; Culver V. Haslam, 7 Barb. 314. 3 Mills V. Winter, 94 Ind. 329. 4 Price V. Richmond & D. R. Co. 38 S. C. 199, 17 S. E. 732. B State V. Bryant, 93 Mo. 273, 6 S. W. 102 ; Keithley v. Stafford, 126 111. 507, 18 N. E. 740; Woodcock v. Johnson, 36 Minn. 217, 30 N. W. 894; Clary v. Clary, 24 N. C. (2 Ired. L.) 78; Com. v. Gerade, 145 Pa. 289, 27 Am. St. Rep. 689, 22 Atl. 464. Within the rule as thus stated, witnesses in a will contest who had known the testatrix personally and had opportunities to observe her frequently may be asked to state what they would say as to her soundness of mind. Shanley's Appeal, 62 Conn. 325, 25 Atl. 245; Wise V. Foote, 81 Ky. 10; State v. Potts, 100 N. C. 457, 6 S. E. 657. 6 State V. Crisp, 126 Mo. 605, 29 S. W. 699. 7 Grand Lodge, I. O. M. A. v. Wieting, 168 111. 408, 61 Am. St. Rep. 123, 48 N. E. 59. 8 Holcomb V. State, 41 Tex. 125. SHite V. Com. 14 Ky. L. Rep. 308, 20 S. W. 217; First Nat. Bank v. Wirebaeh, 12 W. N. C. 150; Grand Lodge, I. 0. M. A. v. Wieting, 168 111. 408, 61 Am. St. Rep. 123, 48 N. E. 59; Wheeloek v. Godfrey, 100 Cal. 578, 35 Pac. 317. 10 Re Wax, 106 Cal. 343, 39 Pac. 624; Wheeloek v. Godfrey, 100 Cal. 578, 35 Pac. 317 ; State v. Hansen, 25 Or. 391, 35 Pac. 976, 36 Pac. 296. d. Time to which opinion relates. — Nonexperts cannot give their opinions that another was insane without designating any particular time when in their judgment such insanity existed.* So, the opinion of a witness as to the sanity of a testator must relate to the time of his examination, and he cannot be required to give his opinion as to capacity previous to that time.^ So, nonexperts cannot give their opinion as to the mental condition of the testator on the day of the execution of the will when they did not see him on that day.^ 1 Moors V. Sanford, 2 Kan. App. 243, 41 Pac. 1064; Denning v. Butcher, 901 Iowa, 425, 59 N. W. 69. SRunyan v. Price, 15 Ohio St. 1, 86 Am. Dec. 459. 3 Blake v. Rourke, 74 Iowa, 519, 38 N. W. 392. INSANITY. 595 e. Cross-examination, rebuUaZ, and impeachment. — The fact that hypothetical questions based on facts not within the knowledge of a witness, who was not an expert, were asked on cross-examination does not render them admissible in a will contest upon the question of testamentary capacity.^ And wit- nesses in a will contest who had given an opinion as to the capacity of the testator founded on facts known to them and conduct within their own observation cannot be called upon to say on cross-examination what their opinions would be in a different state of affairs." It is within the discretion of the court in a will contest, however, to permit the cross-examination of a witness before allowing his opinion as to the testator's mental capacity to be given.' So, a nonexpert may be asked on cross-examination whether from his observation and ac- quaintance he thought the testatrix was mentally incapable of transacting ordinary business for the purpose of fathoming the extent of his knowledge of her business capacity.* And when he bases his opinion in part upon a contract, he may be asked whether he regarded it as reasonable or unreasonable.* And one who had given the opinion that the testator was of sound mind may be asked upon cross-examination by way of impeach- ment if he had stated out of court that the testator was childish and was going crazy.* And what a witness testifies in a will contest that the will was duly executed by a competent testator, a statement made by him in another action that the instrument was worthless is admissible in evidence for the purpose of im- peachment.' iPittard v. Foster, 12 111. App. 132; Dunham's Appeal, 27 Conn. 192. 2 Rambler v. Tryon, 7 Serg. & E. 90, 10 Am. Dec. 444. 3 O'Connor v. Madison, 98 Mich. 183, 57 N. W. 105 ; First Nat. Bank v. Wirebach, 12 W. N. C. 150. 4 Gardiner v. Gardiner, 34 N. Y. 155. 6 Pence v. Waugh, 135 Ind. 143, 34 N. B. 860. estaser v. Hogan, 120 Ind. 227, 21 N. E. 911, 22 N. E. 990. TBeaubien v. Cicotte, 12 Mich. 459. /. Weight. — The weight to be given the opinions of non- expert witnesses as to the sanity of a person depends upon a consideration of all the circumstances under which it was 596 BEIEF ON FACTS. formed,* and upon the extent and character of the impairment of the mind,* and upon the witness's capacity to judge and his opportunity to observe;^ and also upon the intelligence and honesty of the witness,* and his freedom from interest and bias/ It has been said that the opinions of ordinary witnesses as to the sanity of an insured who committed suicide are not of great weight,® and that little or no weight can be given to opinions of nonexpert witnesses as to the mental condition of the defendant in an action for his interdiction.'' Evidence of witnesses present at the execution of a deed,' or of a will,' is entitled to particular weight upon the question of competency. So, evidence of notaries who took a grantor's acknowledgment to his deed is entitled to great weight.*" The opinions of such witnesses are to be weighed by the facts upon which they are based,** such facts being of more importance than the opinions.*^ Such opinions are entitled to little or no regard unless supported by good reason founded on facts which warrant them in the opinion of the jury.** And the weight and effect which shall be given to the opinion of a nonexpert witness on a question as to mental soundness is also a question of fact for the jury.** 1 Moore v. Moore, 67 Mo. 192. SBurney v. Torrey, 100 Ala. 157, 46 Am. St. Rep. 33, 14 So. 685. 3 Burton v. Scott, 3 Rand. (Va.) 399; Burney v. Torrey, 100 Ala. 157, 46 Am. St. Rep. 33, 14 So. 685 ; Armstrong v. State, 30 Fla. 170, 17 L.R.A. 484, 11 So. 618; Re Merriman, 108 Mich. 454, 66 N. W. 372; Sharp V. Kansas City Cable R. Co. 114 Mo. 94, 20 S. W. 93; Clifton V. Clifton, 47 N. J. Eq. 227, 21 Atl. 333; Culver v. Haslam, 7 Barb. 314. 4 Clifton V. Clifton, 47 N. J. Eq. 227, 21 Atl. 333. 5 Culver V. Haslam, 7 Barb. 314. 6 Charter Oak L. Ins. Co. v. Rodell, 95 U. S. 235, 24 L. ed. 433. 7 Eloi V. Eloi, 36 La. Ann. 563. sjarrett v. Jarrett, 11 W. Va. 584. 9 Nicholas v. Kershner, 20 W. Va. 251; Kerr v. Lunsford, 31 W. Va. C80, 2 L.R.A. 668, 8 S. E. 493. lOBuckey \. Buckey, 38 W. Va. 168. U Fiscus V. Turner, 125 Ind. 46, 24 N. E. 662 ; Ex parte Schneider, 21 D. C. 433; Clarke v. Sawyer, 3 Sandf. Ch. 351; Kinleside v. Harrison, 2 Phillim. Ecel. Rep. 449. 12 Clarke v. Sawyer, 3 Sandf. Ch. 351 ; M'Daniel's Will, 2 J. J. Marsh. 331. INSANITY. 397 IS Harrison v. Eowan, 3 Wash. C. C. 580, Fed. Cas. No. 6,141; Kinne v. Kinne, 9 Conn. 102, 21 Am. Dec. 732; Jamison v. Jamison, 3 Houst. (Del.) 108; Jones v. Perkins, 5 B. Mon. 222; Chase v. Winans, 59 Md. 475; Clifton v. Clifton, 47 N. J. Eq. 227, 21 Atl. 333; Doran v. Mc- Conlogue, 150 Pa. 98, 24 Atl. 357; Kerr v. Lunsford, 31 W. Va. 680, 2 L.K.A. 668, 8 S. E. 493. HColee V. State, 75 Ind. 513; Newhard v. Yundt, 132 Pa. 324, 19 Atl. 288; Foster v. Dickerson, 64 Vt. 233, 24 Atl. 253; State v. Hayden, 51 Vt. 296; Gray v. Obear, 59 Ga. 675; Nexsen v. Nexsen, 2 Keyes, 232. 9. Opinion of subscribing witnesses as to sanity or insanity. a. Admissi.bility generally. — The law places subscribing witnesses to a will around the testator to try, judge, and de- termine as to his competency to execute it.* And they are per- mitted to testify as to the opinion they form at the time as to the condition of his mind, whether sound or unsound.^ So, the general rule is that subscribing witnesses may give their opinions as to testamentary capacity of the testator without giving the facts upon which they are founded,' and without assigning cause or reason,* and without stating the grounds upon which they are formed.* 1 Poole V. Richardson, 3 Mass. 330 ; McDaniel v. Crosby, 19 Ark. 533 ; Ethridge v. Bennett, 9 Houst. (Del.) 295, 31 Atl. 813; Potts v. House, 6 Ga. 324, 50 Am. Dec. 329; Field's Appeal, 36 Conn. 277. s Jamison v. Jamison, 3 Houst. (Del.) 108; Walker v. Walker, 34 Ala. 409; Kelly v. McGuire, 15 Ark. 600; Call v. Byram, 39 Ind. 499; Harper's Will, 4 Bibb. 244; Hastings v. Rider, 99 Mass. 623; Martin V. Perkins, 56 Miss. 204; Dewitt v. Barley, 9 N. Y. 371; Clapp v. Fullerton, 34 N. Y. 190, 90 Am. Dee. 681; Crowell v. Kirk, 14 N. C. (3 Dev. L.) 355; Gibson v. Gibson, 9 Yerg. 329; Pidcock v. Potter, 68 Pa. 343, 8 Am. Rep. 181; Parsons v. Parsons, 66 Iowa, 754, 21 N. W. 570, 24 N. W. 564. STitlow V. Titlow, 54 Pa. 216, 93 Am. Dec. 691; Potts v. House, 6 Ga. 324, 50 Am. Dec. 329; Robinson v. Adams, 62 Me. 369, 16 Am. Rep. 473; Williams v. Lee, 47 Md. 321; Crowell v. Kirk, 14 N. C. (3 Dev. L.) 355; Van Hus v. Rainbolt, 2 Coldw. 139; First Nat. Bank v. Wirebach, 12 W. N. C. 150. 4 Gibson v. Gibson, 9 Yerg. 329; Puryear v. Reese, 6 Coldw. 21. 6 Lodge V. Lodge, 2 Houst. (Del.) 419. b. Necessity of giving. — Since witnesses to a will are placed around a testator to ascertain and judge of his capacity, the 598 BEIEF ON FACTS. heir has a right to insist that the testimony of all such witnesses be given to the jury, and they must all be produced if living and under the power of the court.'' It is not necessary to the establishment of a will, however, that the subscribing witnesses should have stated their opinions as to his mental capacity as such opinions are necessarily mere inferences drawn by them from the facts observed.^ And the inability of a subscribing witness who had been introduced to the testator for that pur- pose to testify to his capacity does not invalidate the will, but goes only to the credibility of such witness in ease he is called upon to testify as to sanity or mental capacity.* While a will is required to be attested by two witnesses, it may be proved by one of them who testifies to the attestation by the other and to the competency of the testator, though the other does not testify.* And where any of the witnesses are dead or in such a situation that their testimony cannot be obtained, proof of their signatures is received as secondary evidence of the facts to which they have attested by subscribing the will as witnesses thereto.* And where there is a failure to prove testamentary capacity of a testator by the subscribing witnesses to a will, the executor or proponent is not precluded from establishing his sanity by other testimony.^ The fact that a party attested the execution of a will affords prima facie evidence that he con- sidered the testator sane.'' But it has also been held that the fact that a person attested a will does not furnish evidence of any opinion on his part as to the sanity of the testator;' and that when the attesting witnesses to a will are dead, there is no presumption that if living they would testify that the testator was of sound mind at the time of making his will.® 1 Chase v. Lincoln, 3 Mass. 236 ; Field's Appeal, 36 Conn. 277 ; Jauncey v. Thorne, 2 Barb. Ch. 40, 45 Am. Dec. 424; Bootle v. Blundell, 19 Ves. Jr. 494, Cooper Ch. 136, 15 Revised Rep. 93. 2Cilley V. Cilley, 34 Me. 162; Mays v. Mays, 114 Mo. 536, 21 S. W. 921. 3 Huff V. Huff, 41 Ga. 696. 4 Cheatham v. Hatcher, 30 Gratt. 56, 32 Am. Rep. 650. 5 Jauncey v. Thorne, 2 Barb. Ch. 40, 45 Am. Dec. 424. 6Frear v. Williams, 7 Baxt. 550. 7 Williams v. Lee, 47 Md. 321; Egbert v. Egbert, 78 Pa. 326. 8 Baxter v. Abbott, 7 Gray, 71. 9 Boardman v. Woodman, 47 N. H. 120. INSAIiriTY. 599 c. Contradiction; weight. — The opinions of subscribing witnesses to a will as to the sanity or insanity of the testator are not conclusive.' A will may be established against the testi- mony of subscribing witnesses who testify against the testator's capacity.^ So, the party calling a subscribing witness to a will who declares his belief that the testator was incompetent at the time he made the will may contradict him by reading his evi- dence taken on a former trial and by proof of declarations previously made.' And declarations of an attesting witness to a will who has since died, made on the same day that the will was executed, that he did not believe that the testator was sane and that he signed as witness merely to gratify him, are properly admissible in evidence in a proceeding to contest the will.* And where subscribing witnesses do not agree in opinion as to •capacity of the testator or as to facts upon which they found their opinions, either side may show either by collateral circum- stances or direct proof that one of them is more credible than the other or that one of them is mistal^en in his facts. * But the opinions of attesting witnesses to a will and facts stated by them as occurring at the time of its execution are en- titled to great weight on the question of testamentary capacity,^ though they are not necessarily the best to prove the sanity of the testator.'' And since a witness to a will by his act of at- testation solemnly testifies to the sanity of the testator, if he afterwards attempts to impeach the validity of the will his evi- dence, though not to be positively rejected, is to be received with the most scrupulous jealousy,' especially where he assigns no satisfactory reasons for his opinion.^ 1 Howard's Will, 5 T. B. Mon. 199, 17 Am. Dec. 60. « Cheatham v. Hatcher, 30 Gratt. 56, 32 Am. Rep. 650; Rigg v. Wilton, 13 ni. 15, 54 Am. Dec. 419; Sechrest v. Edwards, 4 Met. (Ky.) 163; Jenkins's Will, 43 Wis. 610; Higgins v. Carlton, 28 Md. 115, 92 Am. Dec. 666; Le Breton v. Fletcher, 2 Hagg. Eccl. Rep. 558; Re Shapter, 35 Colo. 578, 6 L.R.A.(N.S.) 575, 117 Am. St. Rep. 216, 85 Pac. 688. See also cases in note in 6 L.R.A. (N.S.) 575. 3 Harden v. Hays, 9 Pa. 151. ■iTownsend v. Townsend, 9 Gill. 506. 600 BEIEF ON FACTS. But the rule has been adopted by some of the cases that the declarations of a deceased subscribing witness tending to show that he thought the testator to be insane are not admissible in evidence in a pro- ceeding to contest a will. Boardman v. Woodman, 47 N. H. 120; Sellars v. Sellars, 2 Heisk. 430. For note on the question of admissibility of declarations of deceased sub- scribing witness unfavorable to testator's competency, see 27 L.E.A. (N.S.) 294. 5 Bell V. Clark, 31 N. C. (9 Ired. L.) 239. 6 Whitenack v. Stryker, 2 N. J. Eq. 8; Jamison v. Jamison, 3 Houst. (Del.) 108; Kelly v. Perault, 5 Idaho, 221, 48 Pac. 45; Cornelius, V. Cornelius, 52 N. C. (7 Jones L.) 593; Martin v. Thayer, 37 W. Va. 38, 16 S. E. 489; Kerr v. Lunsford, 31 W. Va. 680, 2 L.E.A. 668, 8 S. E. 493; Harrison v. Rowan, 3 Wash. C. C. 580, Fed. Cas. No. 6,141; Field's Appeal, 36 Conn. 277. 'McTaggart v. Thompson, 14 Pa. 149. 8 Young V. Barner, 27 Gratt. 96; Gwin v. Gwin, 5 Idaho, 271, 48 Pac. 295; Hoerth v. Zable, 92 Ky. 202, 17 S. W. 360; Stevens v. Van- cleve, 4 Wash. C. C. 262, Fed. Cas. No. 13,412; Bootle v. Blundell, 19 Ves. Jr. 494, Cooper Ch. 136, 15 Revised Kep. 93; Cook's Estate, 16 Phila. 322; McMeekin v. McMeekin, 2 Bush, 79. 9 Jones V. Goodrich, 5 Moore P. C. C. 16. For other cases as to opinion of subscribing witness as to sanity or insanity, see note in 39 L.R.A. 715. III. Miscellaneous. 10. Photograptts. A photograph of the testator, even though shown to fairly represent him, is not competent on the question of his testamen- tary capacity.^ iVarner v. Varner, 16 Ohio C. C. 386. 11. Declarations. Declarations of a person whose mental condition is in ques- tion, whether made before or after the time at which the con- dition is to be established, are competent so far as they tend to show his condition at the time in question.^ 1 IJill V. Bahrns, 158 111. 314, 41 N. E. 912; Re Goldthorp, 94 Iowa, 336, 62 N. W. 845; Cogswell v. Com. 17 Ky. L. Rep. 822, 32 S. \V. 935; Peery V. Peery, 94 Tenn. 328, 29 S. W. 1; Bower v. Bower, 142 Ind. 194, 41 N. E. 523. INSANITY. 601 The fact that a testator was suffering senile decay does not render incom- petent testimony of his acts and declarations subsequent to the mak- ing of his will. Haines v. Hayden, 95 Mich. 332, 54 N. W. 911. 12. General reputation. Insanity cannot be proved by general reputation or neighbor- hood rumors.^ 1 Ellis V. State, 33 Tex. Grim. Eep. 86, 24 S. W. 894; State v. Coley, 114 N. C. 879, 19 S. E. 705; Thompson v. Ish, 99 Mo. 160, 12 S. W. 510; Cotrell V. Com. 13 Ky. L. Rep. 305, 17 S. W. 149. 13. Presence of defendant in lunacy proceedings. A statute requiring that the defendant in proceedings to have him declared of unsound mind shall be present in court is to give him an opportunity to confront witnesses, and not to permit the jury to make up their verdict upon his appearance and conduct.* 1 Fiseus V. Turner, 125 Ind. 46, 24 N. E. 662 (Ind. Eev. Stat. 1881, § 2547). 14. Conduct and circumstances. Evidence of the acts and conduct, occurrences and other cir- cumstances, whether prior or subsequent to the time at which the mental condition of a person is to be established, which tend to shed light on the state of his mental faculties, is generally receivable for the purpose of showing what his mental condi- tion was at the time in question.* IVon De Veld v. Judy, 143 Mo. 348, 44 S. W. 1117; Lane v. Moore, 151 Mass. 87, 23 N. E. 828 (so holding if sufficiently near the time) ; Pren- tis V. Bates, 93 Mich. 234, 17 L.R.A. 494, 53 N. W. 153 (that testatrix was erratic, eccentric, rambling and disconnected in conversation, flighty in notions, unsettled; that her manner was excitable; that she could not comprehend connected conversations; that she ran about the house screaming, with her dress open in front, etc.) ; Bower v. Bower, 142 Ind. 194, 41 N. E. 523 (that testator for several years before his death did not make out his own tax lists, but that they were made out and sworn to by his son) ; Titus v. Gage, 70 Vt. 14, 39 Atl. 246 (the testatrix at one time released part of a debt securing by mort- gage, and took unsecured note for the amount released; and that the only property the maker had was exempt) ; Green v. State, 64 Ark. 523, €02 BRIEF ON- FACTS. 43 S. W. 973 (that defendant charged with murder seemed from the time of her arrest very unconcerned, and to think that she had done right, and to be unconscious of her condition, and have no apprehen- sion or fear of punishment, and that she frequently laughed and sang, is admissible, in connection with evidence of her disordered mental condition before and at the time of committing the crime). The admissibility of such evidence depends upon the question of interven- ing time, the character of the manifestations, and the circumstances under which they are observed. State v. Leehman, 2 S. D. 171, 49 N. W. 3. Suicide, while not raising a presumption of insanity, may be considered in connection with the circumstances attending it, upon the question of sanity or insanity. Grand Lodge I. O. M. A. v. Wieting, 168 111. 408, 48 N. E. 59, and cases cited; Bachmeyer v. Mutual Reserve Fund Life Asso. 87 Wis. 325, 58 N. W. 399; Ke Card, 28 N. Y. S. R. 528, 8 N. Y. Supp. 297. ft is proper to show the consistency of the will with the natural inclina- tions and previously declared intentions of the testator. Hammond v. Dike, 42 Minn. 273, 44 N. W. 61. Kindly relations between the testator and members of his family disin- herited by him. Re Burns, 121 N. C. 336, 28 S. E. 519. See also Gur- ley V. Park, 135 Ind. 440, 35 N. E. 279 (evidence that testatrix dis- inherited her only child, and that he is needy, with a large family on his hands, competent) ; Manatt v. Scott, 106 Iowa, 203, 76 N. W. 717 (ill-will of decedent toward one with whom she had previously been on friendly terms) ; Re Burns, 121 N. C. 336, 28 S. E. 519 (that testator disinherited some of his children; and it may be properly commented upon by counsel in argument). Compare McGovern's Estate, 185 Pa. 203, 39 Atl. 816 (that shortly before making her will the feelings of testatrix towards one of the objects of her bounty underwent a marked change, and that she became distrustful of her, and attributed every attention received from her to mercenary motives, is insufficient to show that a, provision of the will excluding her from participation therein resulted from an insane delusion). 15. Belief in spiritualism, witchcraft, etc. A belief in spiritualism is not in itself evidence of insanity.* ITor will a belief in witchcraft, ^ or the belief that the souls of men after death pass into animals, ' invalidate a will. 1 Lewis V. Arbuckle, 85 Iowa, 335, 16 L. R. A. 677, 52 N. W. 237; Re Smith, 52 Wis. 548, 36 Am. Rep. 426, note, 8 N. W. 616, 9 N. W. 665; Otto V. Doty, 61 Iowa, 23, 15 N. W. 578; Re Keeler, 12 N. Y. S. R. 157; O'Dell V. Goff, 149 Mich. 152, 10 L.R.A.(N.S.) 989, 119 Am. St. Rep. INSOLVENCY, SOLVENCY, AND FINANCTAI. CONDITION. 603 662. 112 N. W. 730; Turner v. Hand, 3 Wall. Jr. 88, Fed. Cas. No. 14,257; Chafm's Will, 32 Wis. 500. a Re Vedder, 6 Dem. 92; Re Forman, 54 Barb. 297; Van Guyaling v. Van Kuren, 35 N. Y. 70; Lee v. Lee, 4 M'Cord, L. 183, 17 Am. Dee. 722; Kelly V. Miller, 39 Misa. 19; Addington v. Wilson, 5 Ind. 137, 61 Am. Dee. 81. S Bonard's Will, 16 Abb. Pr. N. S. 128. USTSOLVElSrCY, SOLVENCY, AIsTD EINAITCIAL CON- DITION. 1. Direct testimony. 2. Accounts. 3. Relevant facts. 4. Hearsay and general reputation. 5. Presumption and burden of proof. For kindred topics, see Ability; Abstracts; Accounts; Indebtedness. 1. Direct testimony. A witness may testify directly to any fact within his knowl- edge, relevant to the question of the financial means of another person,* including the fact whether the person in question was able to pay his debts.^ But it is not competent to ask his opinion as to financial abil- ity,' responsibility,* solvency, or insolvency,' when the fact is di- rectly involved in the issue. 1 State V. Cadwell, 79 Iowa, 432, 44 N. W. 700; Pacific Postal Teleg. Cable Co. V. Fleischner, 14 C. C. A. 106, 29 U. S. App. 227, 66 Fed. 899; Swan V. Gilbert, 67 111. App. 236; Watterson v. Fuellhart, 169 Pa. 612, 32 Atl. 597 (to the further effect that the witness is not limited in his testimony of what the person owned or what he owed, leaving the inference of solvency or insolvency to be drawn by the jury). 604 BRIEF ON FACTS. Otherwise, where he knows nothing except by general reputation. Hall V. Ballou, 58 Iowa, 585, 12 N. W. 475. And according to Martin v. Mayer, 112 Ala. 620, 20 So. 963, the records of the courts are not the only evidence of a previous insolvency, but » person who knows the fact may testify that another's indebtedness exceeds the value of his assets, and that in fact the person is in- solvent. aThoippson V. Hall, 45 Barb. 214, 216; Lacy v. Kossuth County, 106 Iowa, 16, 75 N. W. 689. What degree of knowledge of a person's solvency or pecuniary circum- stances and credit will qualify to testify concerning them. Iselin v. Peck, 2 Eobt. 629. 3 Dictum, in Thompson v. Hall, 45 Barb. 214, 216. 4 Denman v. Campbell, 7 Hun, 88 (error to allow question. Is C. a man of responsibility?). B York v. People, 31 Hun, 446 (error to allow question, What in your opin- ion was his financial standing, in ? etc. ) ; Hahn v. Penney, 60 Minn. 487, 62 N. W. 1129; Agnew v. United States, 165 U. S. 36, 41 L. ed. 624, 17 Sup. Ct. Rep. 235. 2. Accounts. The accounts of a party are evidence against him to show his financial condition.^ They are not alone evidence in his favor ; * but may be made competent by proof that they vs^ere accurately kept, and showed correctly his condition at the time in question.* 1 Kells V. McClure, 69 Minn. 60, 71 N. W. 827. They may be put in evidence in some cases against his grantee. Loos v. Wilkinson, 110 N. Y. 195, 205, 1 L.R.A. 250, 18 N. E. 99. 2 Smith v. Vincent, 15 Conn. 1, 38 Am. Dec. 52. 3 Rochester Printing Co. v. Loomis, 45 Hun, 93 (admitting schedules made from such accounts; there being no objection to the nonproduction of the accounts). Compare Pringle v. Leverich, 97 N. Y. 181, 49 Am. Rep. 522. 3. Relevant facts. Facts which are the usual concomitants or consequences of pe- cuniary ability, or the contrary, are competent.* 1 Thus, judgment and execution are evidence of insolvency; as also are assignment, and continued suspension of business, or other notorious indications. Terry v. Tubman, 92 U. S. 100, 23 L. ed. 537; State v. Beach, 147 Ind. 74, 36 L.R.A. 179, 40 N. E. 145; Spaulding v. American Wood Board Co. 58 App. Div. 314, 68 N. Y. Supp. 945. INSOLVENCY, SOLVENCY, AND FINANCIAL CONDITION. 605 Sheriff's return of nulla hona. Reynolds v. Pharr, 9 Ala. 560; Yates v. Hoffman, 5 Hun, 113; Baines v. Babcock, 95 Cal. 581, 27 Pao. 674, 30 Pac. 776; Hood v. French, 37 Fla. 117, 19 So. 165. Dishonor of bank check. Brown v. Montgomery, 20 N. Y. 287, 75 Am. Dec. 404; Hudson v. Bauer Grocery Co. 105 Ala. 200, 16 So. 693. Protest of note. Eex Buggy Co. v. Ross, 80 Ark. 388, 97 S. W. 291. Assignment, reciting inability to pay in full. Cunningham v. Morton, 125 U. S. 77, 31 L. ed. 624, 8 Sup. Ct. Rep. 804. Compare Wills v. Claflin, 92 U. S. 135, 23 L. ed. 490 (holding an adjudication of bank- ruptcy inadmissible under an allegation that a suit would have been unavailing). Appraisement of insolvent banker made as required by statute, and filed by the trustee, in the preparation of which the banker aided. State V. Beach, 147 Ind. 74, 36 L.R.A. 179, 46 N. E. 145. The oath which an insolvent debtor is required to make upon applying for his discharge. Re Harris, 81 Cal. 350, 22 Pac. 867. But the record of the proceedings before the justices on an application to take the poor debtor's oath is not admissible in a suit involving the validity of h. prior sale of personal property by the debtor, be- tween the vendee, who was not a party to the poor debtor proceed- ings, and an attaching creditor. Lord v. Locke, 62 N. H. 566. 4. Hearsay and general reputation. Mere hearsay is incompetent to prove the fact of solvency or insolvency,^ and this rule has been applied in some cases to ex- clude evidence of general reputation ; ^ but in the greater number of jurisdictions an exception to the rule is made in favor of gen- eral reputation, which is held competent evidence on the question of financial responsibility vehere it is not sought to establish in- solvency as a legal status.^ And when the question is as to the knowledge or good faith of a third person, general reputation is competent as tending to show reasonable grounds for belief or suspicion.* 1 Walker v. Forbes, 25 Ala. 139, 60 Am. Dec. 498. 2 Stewart v. McMurray, 82 Ala. 269, 3 So. 47; Branch Bank v. Parker, 5 Ala. 731; Ward. v. Herndon, 5 Port. (Ala.) 382; Wolf son v. Allen Bros. Co. 120 Iowa, 455, 94 N. W. 910; Coleman v. Lewis, 183 Mass. 485, 68 L.R.A. 482, 97 Am. St. Rep. 450, 67 N. E. 603; Bliss v. Johnson, 162 Mass. 323, 38 N. E. 446; Sheldon v. Root, 16 Pick. 507, 28 Am. Dec. 266. And in Holten v. Lake County, 55 Ind. 194, the court refused to permit testimony as to the reputation of a party for solvency or insolvency 606 BRIEF ON FACTS. as tending to show that he had or had not paid a debt for which another party was surety. 3 2 Wigmore, Ev. § 1623, p. 1972; Angell v. Rosenbury, 12 Mich. 241; Hayes v. Wells, 34 Md. 518; Nininger v. Knox, 8 Minn. 140, Gil. 110; Burr V. Willson, 22 Minn. 206; West v. St. Paul Nat. Bank, 54 Minn. 466, 56 N. W. 54; Hahn v. Penney, 60 Minn. 487, 62 N. W. 1129; Garrett v. Weinberg, 59 S. C. 162, 37 S. E. 51, 225; Hard v. Brown, 18 Vt. 88; Bank of Middlebury v. Rutland, 33 Vt. 414; Ellis v. State, 138 Wis. 513, 20 L.R.A.(N.S.) 444, 131 Am. St. Rep. 1022, 119 N. W. 1110. * Gordon v. Ritenour, 87 Mo. 54, and cases cited ; Lee v. Kilburn, 3 Gray, 594 (competent in creditor's action, to charge preferred creditor) ; Slingerland v. Bennett, 6 Thomp. & C. 446 (reputation of third per- son for wealth, admissible on the question of the falsity of the repre- sentations by defendant, as to his solvency. Modified only on question of damages, in 66 N. Y. 611) ; Barrett v. Western, 66 Barb. 205 (repu- tation competent in connection with defendant's belief) ; Hahn v. Pen- ney, 60 Minn. 487, 62 N. W. 1129; Martin v. Mayer, 112 Ala. 620, 20 So. 963; Price v. Mazange, 31 Ala. 701; Ward v. Herndon, 5 Port. (Ala.) 382; Branch Bank v. Parker, 5 Ala. 731; Brooks v. Thomas, 8 Md. 367; Larkin v. Hapgood, 56 Vt. 597. 5. Presumption and burden of proof. In the absence of evidence, solvency is presumed.* And solvency or insolvency at a given time having been shown, it is presumed to continue within reasonable limits of time.^ But insolvency at a particular time raises no presumption of insolvency at any considerable time anterior thereto,' or at a subsequent time.* And the party alleging insolvency must establish it like any other afHrmative faet.^ iHart V. Hoffman, 44 How. Pr. 168 (solvency of purchaser procured by broker, presumed, in support of broker's action for compensation) ; Hackley v. Draper, 4 Thomp. & C. 614, affirmed in 60 N. Y. 88 ; Grosse V. Cooley, 43 Minn. 188, 45 N. W. 15; White v. Clasby, 101 Mo. 162, 14 S. W. 180. ZWait, Insolv. Corp. 42, citing Walrod v. Ball, 9 Barb. 271; Donahue v. Coleman, 49 Conn. 464; Mullen v. Pryor, 12 Mo. 307; Body v. Jewsen, 33 Wis. 402; Ellis v. State, 138 Wis. 513, 20 L.R.A.(N.S.) 444, 131 Am. St. Rep. 1022, 119 N. W. 1110; Redding v. Godwin, 44 Minn. 355, 46 N. W. 563; Cleage v. Laidley, 79 C. C. A. 284, 149 Fed. 346. But it is not presumed to continue for any particular length of time. Hohle V. Randrup, 39 Misc. 334, 79 N. Y. Supp. 870. INTENT. 6or SWindhaus v. Bootz, 92 Cal. 617, 28 Pao. 557; Ellis v. State, 138 Wis. 513, 20 L.R.A.(N.S.) 444, 131 Am. St. Rep. 1022, 119 N. W. 1110. * German Secur. Bank v. Columbia Finance & Trust Co. 27 Ky. L. Eep. 581, 85 S. W. 761. BDoxsee v. Waddick, 122 Iowa, 599, 98 N. W. 483; Howell v. Anderson, 66 Neb. 575, 61 L.E.A. 313, 92 N. W. 760. INTEISTT. 1. Eight of person to testify as to his own intent. a. General rule. b. Test of admissibility. c. Exceptions and limitations. d. Application of rule. e. Weight and conclusiveness. 2. Eight to testify as to intent of other person. a. In general. b. Manifested by demeanor. 3. Declarations; res gestae. 4. Intent as to law. 5. Other acts of same nature. 6. Concurrence of intent. 7. Constructive intent. 8. Presumptions and burden of proof. a. Intention as to consequences of act. b. Intent of testator. c. To evade law. d. To create monopoly. 9. Parol or extrinsic evidence to show. a. As to writings generally. b. As to wills generally. u. To show intent of testator in respect to disinheriting an after- born child. d. To show intent that real property should be charged with pay- ment of legacies where will is silent on that point. e. May beneficiary be put to his selection by extrinsic evidence of testator's intention. 608 BRIEF ON FACTS. f. To show that instrument not on its face a will was intended to take effect as such. g. To show that instrument on its face a will was not intended as such. 10. Rebutting. !For kindred topics, see Admissions; Belief; Conveksations ; Coeeoboka- TioN; Good Faith; Knowledge; Notice. 1. Eight of person to testify as to his own intent. a. General rule. — Previous to the enactment of statutes making parties to an action competent witnesses therein, the in- tent of a party could be shown only by the acts of the party and the circumstances which occurred, from which it might be in- ferred ; ^ and Alabama still clings to the common-law doctrine, the rule in that state being that an uncommunicated belief, mo- tive, or intention cannot be testified to by a party to a civil suit when examined as a witness,^ motive or intention being an in- ferential fact, to be drawn by the jury from the facts and cir- cumstances in evidence.' The general rule, however, is that when parties to a suit and parties interested in the transactions are permitted by statute to testify, they may testify what their intentions were, where intent is a material issue.* 1 Zimmerman v. Marchland, 23 Ind. 474. 2 Burke v. State, 71 Ala. 377; Herring v. Skaggs, 62 Ala. 180, 34 Am. T!pt). 4; Alabama Fertilizer Co. v. Reynolds, 79 Ala. 497; Barnewell V. Stephens, 142 Ala. 609, 38 So. 662; Oxford Iron Co. v. Spradley, 51 Ala. 171. An exception to this rule exists where the accused in a criminal case testifies in his own behalf to a particular act of his, relevant to the issue, in which case it is permissible to ask him on cross-examination what motive prompted him to the act, or what intention actuated him, or why he did it.- Williams v. State, 123 Ala. 39, 26 So. 521; Hurst V. State, 133 Ala. 96, 31 So. 933; Linnehan v. State, 120 Ala. 293, 25 So. 6. 3 Alexander v. Alexander, 71 Ala. 295; Wheless v. Rhodes, 70 Ala. 419; Whizenant v. State, 71 Ala. 383; McCormick v. Joseph, 77 Ala. 236; Stewart v. State, 78 Ala. 436 ; Baldwin v. Walker, 91 Ala. 428, 8 So. 364. 4Barnhart v. Fulkerth, 93 Cal. 497, 29 Pac. 50; Fleet v. Tichenor, 156 Cal. 343, 34 L.R.A.(N.S.) 323, 104 Pac. 458; Fulkerson v. Stiles, 156 Cal. 703, 20 L.R.A.(N.S.) 181, 105 Pac. 966; Lane v. State, 44 Fla. INTENT. 609 105, 32 So. 896; Germania F. Ins. Co. v. Stone, 21 Fla. 555; Hale v. Robertson, 100 Ga. 168, 27 S. E. 937; Wohlford v. People, 148 111. 296, 36 N. E. 107 ; Odin Coal Co. v. Denman, 84 111. App. 190, affirmed in 185 111. 413, 76 Am. St. Rep. 45, 57 N. E. 192; Ross v. State, 136 Ind. 495, 19 N. E. 451 ; Heap v. Parrish, 104 Ind. 36, 3 N. E. 549 ; Chew V. O'Hara, 110 Iowa, 81, 81 N. W. 157; Baker v. Missouri, K. & T. R. Co. 85 Kan. 263, 35 L.R.A.{N.S.) 822, 116 Pac. 816; State v. Wright, 40 La. Ann. 589, 4 So. 486; Jarrell v. Young, Smyth, Field Co. 105 Md. 280, 23 L.R.A.(N.S.) 367, 66 Atl. 50, 12 Ann. Gas. 1; Wheelden v. Wilson, 44 Me. 18; Faxon v. Jones, 176 Mass. 206, 57 N. E. 359; Spalding v. Lowe, 56 Mich. 366, 23 N. W. 46; Berkey v. Judd, 22 Minn. 287; State v. Banks, 73 Mo. 592; Hackney v. Ray- mond Eros. Clarke Co. 68 Neb. 624, 94 N. W. 822; Hale v. Taylor, 45 N. H. 405; Fiedler v. Darrin, 50 N. Y. 437; Thurston v. Cornell, 38 N. Y. 281; People v. Gardner, 73 Hun, 66, 25 N. Y. Supp. 1072; Nixon V. McKinney, 105 N. C. 23, 11 S. E. 154; State v. Johnson, 17 N. D. 554, 118 N. W. 230; Ohio Coal Co. v. Davenport, 37 Ohio St. 194; Juniata Bldg. & L. Asso. v. Hetzel, 103 Pa. 507; McDaniels V. Robinson, 26 Vt. 316, 62 Am. Dec. 574; Jackson v. Com. 96 Va. 107, 30 S. E. 452; Brown v. State, 127 Wis. 193, 106 N. W. 536, 7 Ann. Cas. 258; Wade v. Odle, 21 Tex. Civ. App. 656, 54 S. W. 786. When present intent is relevant, as, where an injunction is sought, the party testifying as a witness may be required to answer whether he intends to do the act in question. Heilbron v. Last Chance W. D. Co. — Cal. — , 9 Pac. 456. b. Test of admissibility. — The test of admissibility of evi- dence of the motive or intent with which an act was done is the materiality of the motive or intent in giving character to the act; * and where the intention of a party is not an issue in the case, his testimony in regard thereto is incompetent.* 1 State v. King, 86 N. C. 603. 2Leland v. Converse, 181 Mass. 487, 63 N. E. 939; Hankins v. Watkins, 77 Hun, 360, 28 N. Y. Supp. 867; Weis v. Morris Bros. 102 Iowa, 327, 71 N. W. 208; Penobscot R. Co. v. White, 41 Me. 512, 66 Am. Dec. 257. c. Exceptions and limitations. — The rule that a party will be allowed to testify to his intent, either in civil or criminal cases, whenever his intent is material, is subject to the exception that such evidence is not admissible to vary the terms of a written instrument by which he is bound.' And where the acts of one filing an addition to a municipality manifest an intent to Abb. Facts — .'^9. 610 BRIEF ON FACTS. dedicate to public use streets shown on the plat, he will not he permitted to testify that he did not intend to make the dedica- tion.^ ISTor is it competent to take the opinion of a witness on questions involving a conclusion of law,' nor to permit him tO' testify as to mental operations and intentions depending upon nonexistent or suppositious circumstances.* And the mere in- tention- of a party, not manifested by or accompanying any act or declaration, is as a general rule, not admissible to affect the rights of another.* And when, by law, certain consequences must necessarily follow an act done, the presumption that such consequences were intended is ordinarily conclusive, and cannot be rebutted by any evidence of a want of such intention.' 1 Nixon V. McKinney, 105 N. C. 23, 11 S. E. 154; Russell v. Halton, 76 Ark. 506, 89 S. W. 471; Green v. Akera, 36 Ga. 159; Merriman v. Pine City Lumber Co. 23 Minn. 314; Raymond v. Richmond, 88 N. Y. 671; Cornelius v. Atchison, T. & S. F. R. Co. 74 Kan. 599, 87 Pac. 751; Zimmerman v. Brannon, 103 Iowa, 144, 72 N. W. 439; Hay- wood V. Foster, 16 Ohio, 88. 2 Los Angeles v. McCollum, 156 Cal. 148, 23 L.R.A.(N.S.) 378, 103 Pac. 914. 3 Ohio Coal Co. v. Davenport, 37 Ohio St. 194; Gimbel v. Gomprecht, — • Tex. Civ. App. — , 36 S. W. 781; Budlingame v. Rowland, 77 CaL 315, 1 L.R.A. 829, 19 Pac. 526. «Cook V. People, 2 Thomp. & C. 404; Learned v. Ryder, 61 Barb. 552; State V. Ferguson, 71 Conn. 227, 41 Atl. 769; Palmer v. Pinkham, 33 Me. 32. 6 Hale V. Taylor, 45 N. H. 405 ; Gale v. Balknap County Ins. Co. 41 N. H. 170; Dunbar v. Armstrong, 115 111. App. 549; Phoenix Mills v. Miller, 25 N. Y. Week. Dig. 290, 4 N. Y. S. R. 787; Shrader v. Bonker, 65 Barb. 608; Cullmans v. Lindsay, 114 Pa. 166, 6 Atl. 332; Law v. Payson, 32 Me. 521 ; Colborn v. Fry, 23 Ind. App. 485, 55 N. E. 621. BEcker v. McAllister, 45 Md. 290; Phelps v. George's Creek & C. R. Co. 60 Md. 536; Seymour v. Wilson, 14 N. Y. 567; Brown v. J. I. Case Plow Works, 9 Kan. App. 685, 59 Pac. 601; Cowley v. Smyth, 46 N. J. L. 380, 50 Am. Rep. 432; Cheatham v. Hawkins, 80 N. C. 161. d. Application of rule. — The rule that a party may be asked the direct question what his intent was at a particular time or with respect to a particular act, when the intent is a material issue in the ease, applies both in criminal and civil suits.* It is applicable in libel and slander cases,^ in actions for malicious prosecutions,* and in cases involving the question of usury,* or INTENT. 611 fraud.* So, a person may testify as to his intent to make a place his domicil, or to change his domicil,® or to abandon his home- stead.' On an issue as to whether purchases or commodities on margins were bona fide or simulated, the defendant may testify as to his intention not to receive or deliver any of the commodi- ties, such evidence constituting a link in the chain necessary to slio\\' the real intention of the parties to the transaction.' And an employee suing his employer for personal injuries caused by defective appliances may testify that he continued to work in reliance upon a promise to repair.* But the question whether a person intends to make a dedica- tion of land to the public must be determined from his acts and declarations explanatory thereof, and not from what he may sub- sequently testify to in relation to his real intention.*" 1 Dunbar v. Armstrong, 115 111. App. 549; Shockey v. Mills, 71 Ind. 288, 36 Am. Eep. 196. «Lally V. Emery, 54 Hun, 517, 8 N. Y. Supp. 135; Wilson v. Noonan, 36 Wis. 321; Dorn v. Cooper, 139 Iowa, 742, 117 N. W. 1, 118 N. W. 35, 16 Ann. Cas. 744, overruling Barr v. Hack, 46 Iowa, 308; Arnott V. Standard Asso. 57 Conn. 86. 3 L.R.A. 69, 17 Atl. 361. • Flickinger v. Wagner, 46 Md. 580; Coleman v. Heurich, 2 Maekey, 189; Heap V. Parriah, 104 Ind. 36, 3 N. B. 549; Leake v. Carlisle, 75 N. Y. Supp. 382; George v. Johnson, 25 App. Div. 125, 49 N. Y. Supp. 203; Autry V. Floyd, 127 N. C. 186, 37 S. E. 208; Spalding v. Lowe, 56 Mich. 366, 23 N. W. 46. iPeightal v. Cotton States Bldg. Co. 25 Tex. Civ. App. 390, 61 S. W. 428; Black V. Ryder, 5 Daly, 304; More v. Deyoe, 22 Hun, 208. B Babcock v. People, 15 Hun, 347; Hubbell v. Alden, 4 Lana. 214; Pope v. Hart, 35 Barb. 630; Seymour v. Wilson, 14 N. Y. 567; Commercial Bank v. Firemen's Ins. Co. 87 Wis. 297, 58 N. W. 391. Thus, testimony by the parties as to what was believed and intended is admissible in an action for false representations (Boddy v. Henry, 113 Iowa, 462, 53 L.R.A. 769, 85 N. W. 771; Brown v. Lessing, 70 Tex. 546, 7 S. W. 783; Beddell v. Chase, 34 N. Y. 386; Standard Oil Co. v. Meyer Bros. Drug Co. 74 Mo. App. 446) ; on an issue of fact as to whether an assignment or transfer of property was made with intent to hinder, delay, or defraud creditors (Seymour \. Wilson, 14 N. Y. 567; Vilas Nat. Bank v. Newton, 25 App. Div. 62, 48 N. Y. Supp. 1009, Love V. Tomlinson, 1 Colo. App. 516, 29 Pac. 666; Selz v. Belden, 48 Iowa, 451; Gardom v. Woodward, 44 Kan. 758, 21 Am. St. Eep. 314, 25 Pac. 199; Campbell v. Holland, 22 Neb. 587, 35 N. W. 871; Pierce V. White, 10 Ohio Dec. Reprint, 552; Robertson v. Gourley, 84 Tex. 575, 19 S. W. 1006). 612 BEIEB- ON PACTS. OHulett V. Hulett, 37 Vt. S86; Eeeder v. Holcomb, 105 Mass. 94; Hope v. Flentge, 140 Mo. 390, 47 L.E.A. 806, 41 S. W. 1002; Fisk v. Chester, 8 Gray, 506 ; Albion v. Maple Lake, 71 Minn. 503, 74 N. W. 282 ; Fostei V. Cronkhite, 35 N. Y. 139; Kennedy v. Ryall, 67 N. Y. 379. 'Glasscock v. Stringer, — Tex. Civ. App. — , 32 S. W. 920; Aultman v. Allen, 12 Tex. Civ. App. 227, 33 S. W. 679. sWaite V. Frank, 14 S. D. 626, 86 N. W. 645; Pope v. Hanke, 155 111. 618, 28 L.R.A. 568, 40 N. B. 839; Counselman v. Reichart, 103 Iowa, 430, 72 N. W. 490 ; Kenyon v. Luther, 19 N. Y. S. R. 32, 4 N. Y. Supp. 498, s. c. subsequent appeal, 10 N. Y. Supp. 951. BYerkes v. Northern P. R. Co. 112 Wis. 184, 88 Am. St. Rep. 961, 88 N. W. 33; Toledo Stove Co. v. Reep, 18 Ohio C. C. 58, 9 Ohio C. D. 467. lOFossion v. Landry, 123 Ind. 136, 24 N. E. 96; Columbus v. Dahn, 36 Ind. 330; Elizabethtown, L. & B. S. R. Co. v. Combs, 10 Bush, 382, 19 Am. Rep. 67 ; Lamar County v. Clements, 49 Tex. 347 ; Indian- apolis V. Kingsbury, 101 Ind. 200, 51 Am. Rep. 749; Pittsburgh, C. C. & St. L. R. Co. V. Noftsger, 148 Ind. 101, 47 N. E. 332. e. Weight and conclusiveness. — The testimony of a party as to his intent is not conclusive, but is to be weighed and consid- ered by the jury with the other evidence in the case, in passing upon the question of actual intent.^ 1 Thurston v. Cornell, 38 N. Y. 281; Germania F. Ins. Co. v. Stone, 21 Fla. 555; Juniata Bldg. & L. Asso. v. Hetzel, 103 Pa. 507; Larson v. Thoma, 143 Iowa, 338, 121 N. W. 1059; McKown v. Hunter, 30 N. Y. 625; Wohlford v. People, 148 111. 296, 36 N. E. 107; State v. Dillon, 48 La. Ann. 1365, 20 So. 913, McGhee v. Wells, 57 S. C. 280, 76 Am. St. Rep. 567, 35 S. E. 529 ; Wade v. Odle, 21 Tex. Civ. App. 656, 54 S. W. 786; Eoyce v. Gazan, 76 Ga. 79; Fanning v. Green, 156 Cal. 279, 104 Pac. 308. For an extended discussion of the question of the right of a person to testify as to his intent, with a review of all the authorities, see notes in 23 L.R.A.(N.S.) 367, and 34 L.R.A. (N.cj.) 323. 2. Right to testify as to intent of other person a. In general.— K witness may not testify as to the motive or intent of another person, but that is to be shown by circumstan- ces, and the declarations of such other person,* or by his own tes- timony. Thus, an officer or agent of a corporation cannot testify directly to the intent of the whole corporation ; * nor can an at- torney be allowed to testify as to his client's intention in bring- ing suit.' But officers of a corporation, whose acts of malicious INTENT. G13 Intention would be acts of the corporation, may testify, in an action of libel against the corporation, that they had not, and, to their knowledge, no officer or employee had, any malicious intention toward the plaintiff in the publication of the libel.* So, where an assignment for creditors by an insolvent corpo- ration is attacked for fraud, the directors may testify to their good motives in making the assignment. ^ And where the in- tent of a defendant to defraud is an issue, his testimony as to the absence of such intent is admissible on behalf of codef end- ants.^ And where a husband and wife are in accord, evidence of the intention of the wife in regard to the selection of a home- stead is admissible as pointing to the intention of the husband.' 1 Manufacturers' & T. Bank v. Koch, 105 N. Y. 630, 12 N. E. 9, more fully, 8 N. Y. S. R. 37; Cihak v. Klekr, 117 111. 643, 7 N. E. Ill, 114 (hus- band cannot testify what was his wife's intention as to reservation or dedication of land) ; Maier v. Evansville Bd. of Public Works, 151 Ind. 197, 51 N. E. 233; Irwin v. Nolde, 164 Pa. 205, 30 Atl. 246; Garves v. Campbell, 74 Tex. 576, 12 S. W. 238; Eindskopf v. Myers, 77 Wis. 649, 46 N. W. 818 ; MeCosker v. Banks, 84 Md. 292, 35 Atl. 935 ; Odin Coal Co. V. Denman, 84 111. App. 190, affirmed in 185 111. 413, 76 Am. St. Rep. 45, 57 N. E. 192. A witness cannot be asked if he knew of any unfair act done by a. trustee to procure a sale to himself. Red Jacket Tribe v. Gibson, 70 Cal. 128, 12 Pac. 127. 2 Odin Coal Co. v. Denman, 84 111. App. 190, affirmed in 185 111. 413, 76 Am. St. Rep. 45, 57 N. E. 192. 8 Winsor v. Clark, 39 Me. 428. 4 Brown v. Massachusetts Title Ins. Co. 151 Mass. 127, 23 N. E. 733. B Covert V. Rogers, 38 Mich. 363, 31 Am. Rep. 319, and an officer of a corporation may testify to the intent with which its transactions under his official cognizance were done. Hamilton Buggy Co. v. Iowa Buggy Co. 88 Iowa, 364, 55 N. W. 496; Fred Miller Brewing Co. v. De France, 90 Iowa, 395, 57 N. W. 959 (allowing an agent to so testify), s. p.. National Bank of the Metropolis v. Kennedy, 17 Wall. 19, 29, 21 L. ed. 554, 557. So, under an indictment for burning a building ''erected for the manufac- turing of woolen goods," it appearing that the building was un- finished, the purpose of its erection may be proved by the president. McGarry v. People, 2 Lans. 227. BHubbell V. Alden, 4 Lans. 214. » Gunn V. Wynne, — Tex. Civ. App. — , 43 S. W. 290. 614 BEIEF ON FACTS. h. Manifested hy demeanor. — A witness may testify to his impression that one combatant in a struggle he witnessed was not choking the other, but it was a friendly grasp. ^ 1 Blake v. People, 73 N. Y. 586. See also Feelings. As to the competency of the understanding of a witness as to significance of expressions, gestures, and intonations, see Belief; Signs and Sig- nals; and Criminal Trial Brief. Opinion of witness as to object of transaction with third person, inad- missible. People V. Sharp, 107 N. Y. 427, 14 N. E. 319, reversing 45 Hun, 460. 3. Declarations, res g^estse. For the conflict of authority as to whether one person's decla- rations of intent are competent against another person, merely because part of the res gestw of an act of the former in the ab- sence of the latter, see ' — I Criminal Trial Brief; 21 Alb. L. J. 484, 504; 22 Alb. L. J. 4; Nowell v. New York, 20 Jones & S. 382; Wilcox v. Green, 23 Barb. 639, 643, note; Kyd v. Cook, 56 Neb. 71, 76 N. W. 524; Lehmann v. Chapel, 70 Minn. 496, 73 N. W. 402; Vyn v. Keppel, 108 Mich. 244, 65 N. W. 966; MoLemore v. Powell, 32 S. C. 582, 10 S. E. 550, 827; Klein v. Hofflieimer, 132 U. S. 367, 33 L. ed. 373, 10 Sup. Ct. Kep. 130 ; Unangst V. Goodyear Rubber Co. 141 Pa. 127, 21 Atl. 499; Garrison v. Goodale, 23 Or. 307, 31 Pac. 709; Ross v. Wellman, 102 Gal. 1, 36 Pac. 402; Ferbrache v. Martin, 3 Idaho, 573, 32 Pac. 252; H. B. Claflin Co. v. Rodenberg, 101 Ala. 213, 13 So. 272; O'Hare v. Duck-worth, 4 Wash. 470, 30 Pac. 724; NeuflFer v. Moehn, 96 Iowa, 731, 65 N. W. 334; Harton v. Lyons, 97 Tenn. 180, 36 S. W. 851. 4. Intent as to law. In a contract involving matters in several jurisdictions, if there is no express declaration which law shall control, the fact that the contract will be valid by the law of one jurisdiction and invalid by the law of another, is sufficient evidence of intent that that law shall control, which will sustain the contract' 1 New England Mortg. Secur. Co. v. Vader, 28 Fed. 265. And see Brown V. American Finance Co. 19 Abb. N. C. 305. Compare Liverpool & 6. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 448, 32 L. ed. 788, 794, 9 Sup. Ct. Rep. 469, for the general rule. INTENT. 615 5. Other acts of same nature. Other acts of same nature may be competent to show intent.' 1 Mutual L. Ins. Co. v. Armstrong, 117 U. S. 591, 29 L. ed. 997, 6 Sup. Ct. Rep. 877 ; Brown v. Greenfield Life Asso. 172 Mass. 498, 53 N. E. 129 ; Whitmore v. Supreme Lodge K. & L. of H. 100 Mo. 36, 13 S. E. 495; Smith V. National Ben. Soc. 123 N. Y. 85, 9 L.R.A. 616, 25 N. E. 197; Eamea v. Kaiser, 142 U. S. 488, 35 L. cd. 1091, 12 Sup. Ct. Rep. 302 ; McCasker v. Enright, 64 Vt. 488, 24 Atl. 249 ; Gardner v. Meeker, 169 111. 40, 48 N. E. 307; Nelms v. Steiner Bros. 113 Ala. 562, 22 So. 435; Piedmont Bank v. Hatcher, 94 Va. 229, 26 S. E. 505; Raby v. Frank, 12 Tex. Civ. App. 125, 34 S. W. 777 ; Davis v. Vories, 141 Mo. 234, 42 S. W. 707. On the question whether a constable's charges for mileage, fees, etc., were made in good faith, other claims presented by the officer were ad- missible as bearing on that issue. McGuire v. Iowa County, 133. Iowa, 636, 111 N. W. 34. ;So, on an issue as to the fraudulent representations of a, life insurance agent in procuring an application for a policy and a premium note, evidence was admitted to show other similar transactions by the same agent in the vicinity. Hartford L. Ins. Co. v. Hope, 40 Ind. App. 354, 81 N. E. 595, 1088. The test of competency is whether they show the existence of the same motive actuating connected conduct, in which ease they are competent, or only the same disposition manifesting itself under other circum- stances, in which case they are not competent, to show intent, al- though sometimes may be to negative accident, or to show character or habit. See Accident; Chakactek; Habit. But the inference to be drawn is not a legal one; the evidence simply raises a presumption of fact which may be rebutted by other evi- dence. Spaulding v. Keyes, 125 N. Y. 113, 26 N. E. 15. A.S to evidence of other crimes to show intent to criminal case, see note in 62 L.R.A. 194. For presumption that intent continues, see Criminal Trial Bkief. i6. Concurrence of intent. Where it is necessary to prove concurrence of intent, — as in ran illegal agreement, — the intent of each person may be proved by independent evidence; and evidence which shows the in- tent of one person is not incompetent, merely because it is no evi- 'dence of the intent of the other, provided appropriate evidence of the intent of the other be given in due course.* a Abbott, Tr. Ev. 2d ed. 839, notes 1 & 2; Yerkes v. Salomon, 11 Hun, 471. 616 BEIEF OSr FACTS. Intent of one not presumed from that of the other. Bangs v. Hornick, 30 Fed. 97. 7. Constructive intent. The law may in some cases impute to parties to a contract an intent which it is clear never in fact existed.^ IDillenbeck v. Dygert, 97 N. Y. 303, 312 (holding, in support of an as- signment, that it transferred a different claim than the one the parties had in mind), s. p., Lowman v. Lowman, 118 111. 582, 9 N. E. 245. 8. Presumptions and burden of proof. a. Intention as to consequences of act. — Persons of sound mind and discretion must, in general, be under stood to intend, in the ordinary transactions of life, that which is the necessary and unavoidable consequence of their acts.* But this presump- tion may be rebutted.^ 1 Van Pelt v. McGraw, 4 N. Y. 110 ; First Nat. Bank v. Jones, 21 Wall. 325, 22 L. ed. 542; Wilson v. City Bank, 17 Wall. 473, 21 L. ed. 723; United States v. Boyd, 45 Fed. 851; State v. Levelle, 34 S. C. 120, 13 S. E. 319; Allison v. Chandler, 11 Mich. 542; State Sav. Bank v. Buck, 123 Mo. 141, 27 S. W. 341 ; Atlanta & W. Butter & Cheese Asso. V. Smith, 141 Wis. 377, 32 L.R.A.(N.S.) 137, 135 Am. St. Eep. 42, 123 N. W. 106. There is no presumption of law in criminal cases that a person intended the ordinary consequences of his acts. Such presumption is, in such cases, merely a rule to assist the jury in reaching a conclusion upon a question of fact. People v. Flack, 125 N. Y. 324, 11 L.R.A. 807, 26 N. E. 267. 2 Filkins v. People, 69 N. Y. 101, 25 Am. Eep. 143, reversing People v. Filkins, Sheldon, 504. So, the presumption that a contract not to be performed in the place in which it was entered into was intended to be governed by the law of the place where the contract was made is not conclusive, and may be rebutted by evidence that the parties intended otherwise. Commercial Bank v. Auze, 74 Miss. 609, 21 So. 754. ?). Intent of testator. — A testator is presumed to have de- stroyed a will animo revocandi, where it is shown to have been made and left in his custody, and after his death it cannot be found ; * but this presumption may be overcome by evidence, circumstantial or otherwise, to the contrary. "^ And the pre- INTENT. 617 sumption that a testator who destroyed one copy of a will exe- cuted in duplicate did so with the intention of revoking the will is an inference of fact, and not a conclusion of law.^ When a will produced from the testator's custody is mutilated and the signature destroyed, the burden is on proponents to account for the mutilation, and not on the caveators to show that the muti- lation was purposely done.* The use of a pencil in writing or making alterations in a will otherwise duly executed raises no presumption that the testator was only deliberating, and that the will is not final ; the use of such instrument is as indicative of a final and conclusive intent on the part of the testator as any other.^ 1 Williams v. Miles, 68 Neb. 463, 62 L.R.A. 383, 110 Am. St. Eep. 431, 94 N. W. 705, 96 N. W. 151, 4 Ann. Cas. 306; Cheever v. North, 106 Mich. 390, 37 L.R.A. 561, 58 Am. St. Eep. 499, 64 N. W. 455. 2 Williams v. Miles, 68 Neb. 463, 62 L.R.A. 383, 110 Am. St. Rep. 431, 94 N. W. 705, 96 N. W. 151, 4 Ann. Cas. 306. SManagle v. Parker, 75 N. H. 139, 24 L.R.A. (N.S.) 180, 71 Atl. 647, Ann. Cas. 1912, A, 269. 4 Cutler V. Cutler, 130 N. C. 1, 57 L.R.A. 209, 89 Am. St. Rep. 854, 40 S. E. 689. BLa Rue v. Lee, 63 W. Va. 388, 14 L.R.A. (N.S.) 968, 129 Am. St. Eep. 978, 60 S. E. 388. c. To evade law. — An intent to evade the laws of a state in which a divorce was granted, making remarriage of the di- vorced person unlawful, will not be assumed from the mere fact of his contracting marriage in another state immediately be- fore returning to that where the divorce was granted.^ And a presumption of an intent to make a gaming contract under the guise of a sale of stock for future delivery does not arise from the mere fact that the seller did not at the time own the stock.^ But the intention to evade the local exemptions laws is neces- sarily presumed where a creditor resorts to the courts of another state to collect a debt from a debtor residing in the same city with himself, by attachment of his wages, where the employer also has an office and is doing business in the same city, and the local courts are open and accessible.' In case of failure to stamp an instrument required by statute to be stamped, the weight of authority places the burden of 618 BEIEP ON FACTS. proving an intent to evade the statute upon the party objecting to the admissibility of the instrument in evidence or question- ing its validity,* though in a few cases it has been expressly held that the burden is upon the party offering an unstamped instrument in evidence or asserting its validity, to negative an intent to evade the statute.^ 1 Newman v. Kimbrough, — Tenn. — , 52 L.R.A. 668, 59 S. W. 1061. 2 Clews V. Jamieson, 182 U. S. 461, 45 L. ed. 1183, 21 Sup. Ct. Eep. 845. sWierse v. Thomas, 145 N. C. 261, 15 L.K.A.(N.S.) 1008, 122 Am. St. Ecp. 446, 59 S. E. 58. 4 Ferryman v. Greenville, 51 Ala. 507; Mitchell v. Home Ins. Co. 32 Iowa, 421; Trowbridge v. Addoms, 23 Colo. 518, 48 Pac. S35; Hallock v. Jaudin, 34 Cal. 167; Sawyer v. Parker, 57 Me. 39; Black v. Woodrow, 39 Md. 194; Morris v. McMorris, 44 Miss. 441, 7 Am. Eep. 695; New Haven & N. Co. v. Quintard, 37 How. Pr. 29; Cagger v. Lansing, 57 Barb. 421; Smith v. Scott, 31 Wis. 437; Cassidy v. St. Germain, 22 R. I. 53, 46 Atl. 35; McGovern v. Hoesback, 53 Pa. 176; Grant v. Connecticut Mut. L. Ins. Co. 29 Wis 125. 5 Howe V. Carpenter, 53 Barb. 382; Beebe v. Hutton, 47 Barb. 187; Davy V. Morgan, 56 Barb. 218 ; Baird v. Pridmore, 31 How. Pr. 359. d. To create monopoly. — The unification of power and con- trol over the oil industry, which results from combining in the hands of a holding company the capital stock of the various corporations trading in petroleum and its products, raises a pre- sumption of an intent to exclude others from the trade, and thus centralize in the combination a perpetual control of the movement of these commodities in the channels of interstate and foreign commerce, in violation of the prohibitions of the act of July 2, 1890, §§ 1, 2, against combinations in restraint of interstate or foreign trade or commerce, or monopolization or attempt to monopolize any part of such trade or commerce.^ 1 Standard Oil Co. v. United States, 221 U. S. 1, 55 L. ed. 619, 34 L.R.A. (N.S.) 834, 31 Sup. Ct. Rep. 502. 9. Parol or extrinsic evidence to show. a. As to luritings generally. — Where an instrument in unam- biguous, parol evidence is not admissible to show that the secret intent of the parties was other than that expressed in the in- strument.' But where an instrument is ambiguous and capable of more than one interpretation, the true intent of the parties INTENT. 619 may be shown by parol.^ And parol evidence is admissible to show that an instrument was not intended to be binding.' So, the rule that oral evidence is inadmissible to vary the terms of written instruments is generally applied only in suits between parties to the instrument.* i Tyler v. Waddingham, 58 Conn. 375, 8 L.R.A. 657, 20 Atl. 335; Home Ins. Co. V. Harrington, 95 Ga. 7.59, 22 S. E. 600; Swain v. Grangers' Union, 69 Cal. 180, 10 Pac. 404; Hawley v. Kafitz, 148 Cal. 393, 3 L.R.A.(N.S.) 741, 113 Am. St. Rep. 282, 83 Pac. 248; Uuggan v. Uppendahl, 197 111. 179, 64 N. E. 289; Morris v. Robinson, 80 Ala. 291; American Surety Co. v. Thurber, 121 N. Y. 655, z3 N. E. 1129; Baker v. Baird, 79 Mich. 255, 44 N. W. 004; Phenix Ins. Co. v. Wil- cox & G. Guano Co. 13 C. C. A. 88, 25 U. S. App. 201, 65 Fed. 724; Cream City Glass Co. v. Friedlander, 84 Wis. 53, 21 L.R.A. 135, 30 Am. St. Rep. 895, 54 N. W. 28; Conrad v. Fisher, 37 Mo. App. 352, 8 L.R.A. 147; Hill V. Hill, 74 N. H. 288, 12 L.R.A.(]S.S.) 848, 124 Am. St. Rep. 960, 07 Atl. 406; State Security Bank v. Hoskina, 130 Iowa, 339, 8 L.R.A. (N.S.) 376, 106 N. VV. 764. The purchaser in a contract for the sale of machinery which shall be satis- factory to him cannot be shown by parol to have believed that the seller understood by its terms that the machinery would be satisfactory if it did certain work, even under a statute providing that, when the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail, against either party, in which he had reason to suppose the other understood it. Inman Mfg. Co. V. American Cereal Co. 133 Iowa, 71, 110 N. W. 287, 12 Ann. Cas. 387. With this case, in 8 L.R.A. (N.S.) 1140, is a note reviewing the authorities on rule that when terms of agreement have been in- tended in a different sense, that sense is to prevail, against eitlier party, in which he had reason to suppose the other party under- stood it. A deed delivered to the grantee with the intention on the part of the grantor that it shall be subject to a future condition, but with no ex- press provision for recall by the grantor, and requiring for its validity no additional act on the part of the grantor or any third person, cannot be defeated by parol proof of such condition. Wipfler V. Wipfier, 153 Mich. 18, 10 L.R.A. (N.S.) 941, 110 N. W. 544. Parol evidence is inadmissible to show that the parties to a contract for the sale of a stock of goods, by which the purchaser agreed to assume and pay the "outstanding and open account" held by a certain creditor, intended to include in such account promissory notes held by the creditor. Kramer v. Gardner, 104 Minn. 370, 22 L.R.A. (N.S.) 492, 116 N. W. 925. 620 BEIEF ON FACTS. A policy of fire insurance made payable to a first mortgagee in the standard mortgage clause cannot be altered by extrinsic testimony in a suit at law by the second mortgagee to recover thereon, for the purpose of establishing that the intention of the parties to the con- tract was to include the second mortgagee as a party to the contract. Kupferschmidt v. Agricultural Ins. Co. (N. J. Err. & App.) 80 N. J. L. 441, 34 L.E.A.(N.S.) 503, 78 Atl. 225. Parol evidence is not admissible to show what obligation the sureties on a contractor's bond intended to assume, under a contract to erect a building for a county and pay all claims for labor performed and ma- terials furnished, and give bond to that effect, the bond being con- ditioned that, if the contractor shall pay all claims for labor per- formed and material furnished, then the obligation shall be void. United States Gypsum Co. v. Gleason, 135 Wis. 539, 17 L.R.A.{N.S.) 906, 116 N. W. 238. 2 Hall V. The Barnstable, 84 Fed. 895; Foster v. Woods, 16 Mass. 116; Bowery Bank v. Hart, 37 Misc. 412, 75 N. Y. Supp. 781 ; Mansfield v. New York C. & H. E. R. Co. 102 N. Y. 205, 6 N. E. 386; Walker v. Mc- Donald, 49 Tex. 458; Sandford v. Newark & H. E. Co. 37 N. J. L. 1; Balfour v. Fresno Canal & Irrig. Co. 109 Cal. 221, 41 Pac. 876 ; Smith Bros. & Co. V. New Orleans & N. E. E. Co. 106 La. 11, 54 L.R.A. 923, 87 Am. St. Eep. 285, 30 So. 265; Schuster v. Snawder, 31 Ky. L. Eep. 254, 101 S. W. 1194; Lamb v. Morrow, 140 Iowa, 89, 18 L.E.A. (N.S.) 226, 117 N. W. 1118; Clayton v. County Ct. 58 W. Va. 253, 2 L.R.A. (N.S.) 598, 52 S. E. 103; Pritchard v. Lewis, 125 Wis. 604, 1 L.E.A. (N.S.) 565, 110 Am. St. Eep. 873, 104 N. W. 989. It is competent for the sureties upon a school district treasurer's bond which purported to be the bond of one as principal and of others as sureties, to testify that, in signing the bond and leaving it with the school officer, it was not their intention to deliver the bond without the principal's signature. School Dist. No. 80 v. Lapping, 100 Minn. 139, 12 L.R.A. (N.S.) 1105, 110 N. W. 849. 3 Robinson v. Nessel, 86 111. App. 212 ; Southern Street Railway Adver- tising Co. v. Metropole Shoe Mfg. Co. 91 Md. 61, 46 Atl. 513; Grier- son v. Mason, 60 N. Y. 394. 4 1 Greenl. Ev. 16th ed. § 279; Fitzgerald v. Union Stock Yards Co. 89' Neb. 393, 33 L.R.A. (N.S.) 983, 131 N. W. 612. Thus, in case a settlement with one of several joint tort feasors is in writing, oral evidence is competent to show the intention of the parties thereto, in an action against one not a party to the settlement. Fitzgerald v. Union Stock Yards Co. supra. The other authorities on the question of right to show by extrinsic evidence that payment of judgment against, or consideration for release of, an alleged joint tort feasor, was not a satisfaction of the claim, are gathered in notes in 14 L.E.A.(N.S.) 329, and 33 L.R.A. (N.S.) 983. INTENT. 621 So, against tax officers, the parties to a contract which on its face pur- ports to be a sale of real estate may testify that it was intended to be a mere option. Ee Shields Bros. 134 Iowa, 559, 10 L.R.A.(N.S.) 1061, 111 N. W. 963. h. As to wills generally. — Where the language employed in the will is clear and of well-defined force and meaning, extrin- sic evidence of what was intended in fact cannot be adduced to qualify, explain, enlarge, or contradict this language, but the will must stand as it was written.' In expounding a will the court is to ascertain not what the testator actually intended, but what is the meaning of the words he used.^ The very purpose of putting a will in writing is to declare and express the tes- tator's settled intentions in respect to his property, to establish the certain evidence of such intentions, and such evidence must prevail, no matter what he may have said before or after its execution. The will is made the evidence — the sole and the best evidence — of the testator's intentions.' Where, however, in applying a will to the objects or subjects therein referred to, ex- trinsic facts appear which produce or develop an ambiguity not apparent upon the face of the will itself, since the ambiguity is disclosed by the introduction of extrinsic facts, the court may inquire into every other material extrinsic fact or circumstance to which the will certainly refers, as well as to the relation occu- pied by the testator to those facts, to the end that a correct in- terpretation of the language actually employed by the testator may be arrived at.* In order to determine the object of a tes- tator's bounty, or the subject of disposition, were the descrip- tion in the will of the person or thing intended is applicable with legal certainty to each of several subjects, extrinsic evi- dence may be received to enable the court to identify the per- son or thing intended,^ and for this purpose evidence of tes- tator's declarations and of the instructions given for his will is admissible.® So, extrinsic evidence is admissible to identify a legatee described by an erroneous name in a will.'' But if the description of the person or thing is wholly inapplicable to the subject intended, or said to be intended, evidence is not admissible to prove whom or what the testator really intended 622 BRIEF OH FACTS. to describe.' There is some conflict of authority as to the right to introduce extrinsic evidence to show the testator's intent, where he did not own the land he described and devised in his will, yet did own other land almost perfectly answering to the description.® The general rule governing such cases seems to be that, if the will contains a complete, accurate description of a tract of land not owned by the testator, and no language what- ever pointing in any wise to an intention to devise another tract which he did own, the devise fails ; it cannot be made to apply to a different parcel by extrinsic evidence; but if anywhere in the will there can be discovered words connecting the devise under consideration with the tract of land owned by the tes- tator, the courts will take advantage of such words to make effec- tual the testator's intended devise.^" ISchouler, Wills, 3d ed. § 568; 1 Greenl. Ev. 16th ed. § 289; Wilkins v. Allen, 18 How. 385, 15 L. ed. 396 ; Den ex dem. Weatherhead v. Basker- ville, 11 How. 328, 13 L. ed. 717) Canfield v. Bostwick, 21 Conn. 550; Brown v. Saltonstall, 3 Met. 426; Jackson ex dem. Van Veehten v. Sill, 11 Johns. 201; Wootton v. Redd, 12 Gratt. 196; Judy v. Gilbert, 77 Ind. 96, 40 Am. Rep. 289; Moran v. Moran, 104 Iowa, 216, 39 L.R.A. 204, 65 Am. St. Rep. 443, 73 N. W. 617 ; Def reese v. Lake, 109 Mich. 415, 32 L.R.A. 744, 63 Am, St. Rep. 584, 67 N. W. 505; Young V. McKinnie, 5 Fla. 542. 2 Doe ex dem. Gwillim v. Gwillim, 5 Barn. & Ad. 122, Parke, J.; Avery V. Chappel, 6 Ck)nn. 270, 16 Am. Dee, 53; Burke v. Lee, 76 Va. 386; Couch V, Eastham, 29 W. Va, 784, 3 S. E, 23; Vandiver v. Vandiver, 115 Ala, 328, 22 So. 154; Tucker v. Seaman's Aid Soc, 7 Met. 188; Kerr v. Bryan, 32 Hun, 51; Bingham's Appeal, 64 Pa. 349; Bingel v. Voltz, 142 111. 214, 16 L.R.A. 321, 34 Am. St. Rep. 64, 31 N. E. 13. 3 Patterson v. Wilson, 101 N. C. 594, 8 S. E. 341. A party seeking to maintain a devise must show it by a will in writing, and it would be wholly inconsistent with this rule, where a testator has failed to make a perfect and explicit disclosure of his scheme of disposition in his will, to permit its deficiencies to be supplied by parol proofs of declarations of the testator, or other similar evidence of actual intention. The inquiry is not what the testator meant to ex- press, but what the words which he has used do express; and to such an inquiry evidence of instructions given by the testator for his will, or of his declarations as to what were his intentions in the disposition which he had made, or as to the disposition which he intended to make of his property, is obviously inapplicable. Wootton v. Redd, 12 Gratt, 196. INTENT. 623 4 Miller v. Travers, 8 Bing. 244; Doe ex dem. Hiscocks v. Hiscocks, 5 Mees. & W. 363, 9 L. J. Exch. N. S. 27, 2 Eng. Rul. Cas. 718 ; Patch v. White, 117 U. S. 210, 29 L. cd. 860, 6 Sup. Ct. Eep. 617, 710; Skinner v. Harrison Twp. 110 Ind. 139, 2 L.E.A. 137, 18 N. E. 529; Daugherty V. Rogers, 119 Ind. 254, 3 L.R.A. 847, 20 N. E. 779; Whitcomb v. Rodman, 156 111. 116, 28 L.R.A. 149, 47 Am. St. Rep. 181, 40 N. E. 553; General Assembly v. Guthrie, 86 Va. 125, 6 L.R.A. 321, 10 S. E. 318. In order to discover the intention of a testator, the court may put itself in the place of the party, and then see how the terms of the will affect the property or subject-matter; and for this purpose, evidence outside the will is admissible to show the nature and extent of his property. Hawkins v. Young, 52 N. J. Eq. 508, 28 Atl. 511; Billingslea v. Moore, 14 Ga. 370; Hammond v. Hammond, 55 Md. 575; Moreland ^. Brady, 8 Or. 303, 34 Am. Rep. 581; Perry v. Hunter, 2 R. I. 80. 6 Skinner v. Harrison Twp. 116 Ind. 139, 2 L.R.A. 137, 18 N. E. 529; Tilton V. American Bible Soc. 60 N. H. 377, 49 Am. Eep. 321 ; Reynolds V. Whelan, 16 L. J. Ch. N. S. 434; Gilmer v. Stone, 120 U. S. 586, 30 L. ed. 734, 7 Sup. Ct. Rep. 689; Bodman v. American Tract Soc. 9 Allen, 447. 6 Jones V. Newman, 1 W. Bl. 60; Hampshire v. Peirce, 2 Ves. Sr. 216; Doe ex dem. Hiscocks v. Hiscocks, 5 Mees. & W. 363, 9 L. J. Exch. N. S. 27, 2 Eng. Eul. Cas. 718; Doe ex dem. Gord v. Needs, 2 Mees. & W. 129, 6 L. J. Exeh. N. S. 59, 2 Eng. Rul. Cas. 726. TRe Paulson, 127 Wis. 612, 5 L.R.A. (N.S.) 804, 107 N. W. 484, 7 Ann. Cas. 652; Powell v. Biddle, 2 Dall, 70, 1 L. ed. 293, 1 Am. Dec. 263. 8 1 Greenl. Ev. 16th ed. § 290 ; Miller v. Travers, 8 Bing. 244 ; Nichols v. Turney, 15 Conn. 101 ; Griscom v. Evens, 40 N. J. L. 402, 29 Am. Rep. 251 ; Charter v. Otis, 41 Barb. 525. 8 Barber v. Wood, L. R. 4 Ch. Div. 885, 46 L. J. Ch. N. S. 728, 36 L. T. N. S. 373; Re Lynch, 142 Cal. 373, 75 Pac. 1086; Kurtz v. Hihner, 55 111. 514, 8 Am. Rep. 665; Bingel v. Volz, 142 111. 214, 16 L.E.A. 321, 34 Am. St. Rep. 64, 31 N. E. 13; Lomax v. Lomax, 218 111. 629, 6 L.R.A (N.S.) 942, 75 N. E. 1076; Whitcomb v. Rodman, 156 111. 116, 28 L.E.A. 149, 47 Am. St. Rep. 181, 40 N. E. 553; Huffman v. Young, 170 111. 290, 49 N. E. 570; Judy v. Gilbert, 77 Ind. 96, 40 Am. Rep. 289; Sturgis V. Work, 122 Ind. 134, 17 Am. St. Rep. 349, 22 N. E. 996; Cleveland v. Spilman, 25 Ind. 95; Rook v. Wilson, 142 Ind. 24, 51 Am. St. Rep. 163, 41 N. E. 311; McGovern v. McGovem, 75 Minn. 314, 74 Am. St. Eep. 489, 77 N. W. 970; Sherwood v. Sherwood, 45 Wis. 357, 30 Am. Rep. 757; Rogers v. Rogers, 78 Ga. 688, 3 S. E. 451; Riggs v. Myer5, 20 Mo. 239; Merrick v. Merrick, 37 Ohio St. 126, 41 Am. Eep. 493 ; Eckford v. Eckford, — Iowa, — , 53 N. W. 345, and 91 Iowa, 54, 26 L.E.A. 370, 58 N. W. 1093; Stewart v. Stewart, 96 Iowa, 620, 65 N. W. 976; Patch v. White, 117 U. S. 210, 29 L. ed. 860, 6 Sup. Ct. Eep. 617, 710, reversing 1 Maekey, 468; Govin v. Metz, 79 Hun, 461, 2!) 624: BEIEF ON PACTS. N. Y. Supp. 988; Peters v. Porter, 60 How. Pr. 422; Summers v. Sum- mers, 5 Out. Rep. 110; Hickey v. Stover, 11 Ont. Rep. 106. 10 See note in 6 L.R.A. (N.S.) 942, reviewing all the authorities on cor- rection of misdescription of land in will. c. To shorn intent of testator in respect to disinheriting an afterhorn child. — There is considerable difference of opinion upon this question. None of the cases goes to the extent of holding that the testator's declarations will be admitted for the purpose of showing what his intentions were, but some do hold that extrinsic evidence may be admitted for this purpose,' while other cases hold to the contrary.* iSandon v. Sandon, 123 Wis. 603, 101 N. W. 1089; Peters v. Siders, 126 Mass. 135, 30 Am. Rep. 671; Re Donges, 103 Wis. 497, 74 Am. St. Rep. 885, 79 N. W. 786; Peet v. Peet, 229 111. 341, 13 L.R.A. (N.S.) 780, 82 N. E. 376, 11 Ann. Gas. 492; Hawhe v. Chicago & W. I. R. Co. 165 111. 561, 46 N. E. 240. 2 Chicago, B. & Q. R. Co. v. Wasserman, 22 Fed. 872; Chace v. Chaee, S R. I. 407, 78 Am. Dec. 446; Burns v. Allen, 93 Tenn. 149, 23 S. W. 111. d. To show intent that real property should he charged with payment of legacies where will is silent on that point. — The general rule seems to be that the mere fact that a will gives legacies in excess of testator's personalty will not admit evidence that testator intended that the legacies should be a charge upon the real estate.'' 1 Fries v. Osborn, 190 N. Y. 35, 19 L.R.A.(N.S.) 457, 82 N. E. 716; Heslop V. Gatton, 71 111. 528; Wentworth v. Read, 166 111. 139, 46 N. E. 777; ' McGough V. Hughes, 18 R. I. 768, 30 Atl. 851; Okeson's Appeal, 59 Pa. 99; Duvall's Estate, 146 Pa. 176, 23 Atl. 231. And in Golder v. Chandler, 87 Me. 63, 32 Atl. 784, where a will made no mention of life insurance, and no expression of it afforded any evi- dence that the testator intended to change the direction which the law gives to such insurance money, but it appeared that the personal estate was insufficient to pay the debts and bequests in the will, it was held that parol evidence was not admissible, upon the ground of latent am- biguity in the will, to show an alleged intention on the part of the testator that such life insurance should be considered as part of hia personal estate. INTENT. 625 Such evidence has, however, been admitted in some cases. Leigh v. Savidge, 14 N. J. Eq. 124; Stuart v. Robinson, 80 Miss. 290, 92 Am. St. Rep. 603, 31 So. 903; Theobald v. Fugman, 64 Ohio St. 473, 60 N. E. 606. e. May beneficiary he put to his election iy extrinsic evidence of testator's intention. — It seems to be settled in this country that, while extrinsic evidence is admissible to show the condi- tion of the subject-matter and the surrounding circumstances, so as to place the court in the position of the testator, his pur- pose to put the beneficiary to his election must appear from the will itself, and that extrinsic evidence is inadmissible to es- tablish the intention of the testator to dispose of property be- longing to the beneficiary.^ And in both England and the United States, parol evidence is inadmissible to show that a testamentary provision for testator's wife was intended to be in lieu of dower.^ IFitzhugh V. Hubbard, 41 Ark. 64; McDonald v. Shaw, 92 Ark. 15, 28 L.R.A.(N.S.) 657, 121 S. W. 935; Waters v. Howard, 1 Md. Ch. 112; Sherman v. Lewis, 44 Minn. 107, 40 N. W. 318; Casey v. McGowaii, 50 Misc. 426, 100 N. Y. Supp. 538; Havens v. Sackett,"l5 N. Y. 365; Re Hayden, 1 Connoly, 454, 5 N. Y. Supp. 845; Jones v. Jones, 8 Gill. 198; McLaughlin v. Barnum, 31 Md. 425; Huston v. Cone, 24 Ohio St. 11 : Charch v. Charch, 57 Ohio St. 561, 49 N. E. 408 ; McLean v. Miller, 17 Ohio S. & C. P. Dec. 637; Cameron v. Parish, 155 Ind. 329, 57 N. B. 547; Pennsylvania Ins. Co. v. Stokes, 2 Brewst. (Pa.) 597; Pennsylvania Co. v. Stokes, 61 Pa. 136; Gray v. Williams, 130 N. C. 53, 40 S. E. 843; Young v. McKinnie, 5 Fla. 543. While there are some diota and a decision or two to the contrary, it may fairly be said that the English cases also deny that extrinsic evidence may be admitted to show that the testator intended to bequeath property not belonging to him, and thus raise a case of election. Clementson v. Gandy, 1 Keen, 309, 5 L. J. Ch. N. S. 260; Gibson v. Gibson, 1 Drew. 42, 22 L. J. Ch. N. S. 346 ; Dixon v. Samson, 2 Younge & C. Exch. 566, 1 Jur. 495; Stratton v. Best, 1 Ves. Jr. 285, 2 Revised Rep. 106. 2Tinney v. Tinney, 3 Atk. 8; French v. Davies, 2 Ves. Jr. 580; Birming- ham V. Kirwan, 2 Sch. & Lef. 452; Warbutton v. W?irbutton, 2 Smale & G. 163, 23 L. J. Ch. N. S. 467, 18 Jur. 415, 2 Eq. Rep. 414, 2 Week. Rep. 300; Eairweather v. Archibald, 15 Grant, Ch. (U. C.) 255; Cow- drey V. Cowdrey, 72 N. J. Eq. 951, 12 L.R.A.(N.S.) 1176, 67 Atl. Ill; Hall V. Hall, 8 Rich. L. 407, 64 Am. Dec. 758. An early Virginia statute authorized the admission of parol evidence to show that a provision in favor of the wife was intended to be in lieu Abb. Facts — 40. 626 BRIEF OIT FACTS. of dower. Ambler v. Norton, 4 Hen. & M. 23. And the same seems to have been true in West Virginia. Tracey v. Shumate, 22 W. Va. 474; Atkinson v. Sutton, 23 W. Va. 197. /. To show that instrument not on its face a will was intended to take effect as such. — An unambiguous deed of bargain and sale cannot be converted into a will by parol evidence tending to show an animus testandi in the maker.'' But vyhere judgment notes, unambiguous on their face, and containing none of the features of a testamentary act, were made out and delivered to a third party with instructions that they be kept until the maker should call for them, or, if not called for, to be delivered to the payees after his death, extrinsic evidence was resorted to in order to show that, although not in form testamentary, they were executed by the maker with the intention that they should oper- ate only after his decease, and as codicils to a prior will.^ 1 Noble V. Fickes, 230 111. 594, 13 L.R.A.(N.S.) 1203, 82 N. E. 950, 12 Ann. Cas. 282; Clay v. Layton, 134 Mich. 317, 96 N. W. 458; Dodson v. Dodson, 142 Mich. 586, 105 N. W. 1110. A few early English cases, however, seem to hold contrary to this rule. See Robertson v. Smith, 39 L. J. Prob. N. S. 41, L.R. 2 Prob. & Div. 43, 22 L. T. N. s. 417; Marsden's Goods, 1 Sawbey & T. 542, 6 Jur. N. S. 405, 2 L. T. N. S. 87. "iRe Skerrett, 67 Cal. 585, 8 Pac. 181. g. To show that instrument on its face a will was not intend- ed as such. — There is very little authority as to the admissibil- ity of extrinsic evidence to show that an instrument, on its face a will, was not intended as such, and the few cases which have considered the question are not in harmony. In several cases it has been held that such evidence is not admissible,^ while in other cases it has been decided that a will may be shown by extrinsic evidence not to have been written with a testamen- tary intention.* iRe Kennedy, 159 Mich. 548, 28 L.R.A.(N.S.) 417, 12; Am. St. Rep. 743, 124 N. W. 516, 18 Ann. Cas. 892; Heaston v. Krieg, 167 Ind. 101, 119 Am. St. Rep. 475, 77 N. E. 805; Barnewall v. Murrell, 108 Ala. 366, 18 So. 831; Shaw v. Shaw, 1 Dem. 21. And in Sewell v. Slingluff, 57 Md. 537, it was held that parol evidence is- not admissible to prove that a paper in form a valid will was in fact INTENT, 627 intended to be used and probated only in the event of the testatrix dying without issue, and that, in the contingency of her dying leaving issue, it should be wholly inoperative and her estate should pass as if it had never been executed. 2 Lister v. Smith, 3 Swabey & T. 282, 33 L. J. Prob. N. S. 29, 10 Jur. N. S. 107, 9 L. T. N. S. 578, 12 Week. Rep. 319; Nichols v. Nichols, 2 Phillini. Eccl. Rep. 180; Fleming v. Morrison, 187 Mass. 120, 105 Am. St. Rep. 386, 72 N. E. 499. 10. Rebutting. A party to whom a wrongful intent, or one that tends to ren- der him liable in the action, is imputed, has the right to prove the actual intent by way of contradiction, although it be other- wise irrelevant.' 1 Tracy v. McManua, 58 N. Y. 257 (one sought to be charged as a partner by equivocal acts may testify that his motive in doing what he did was to aid two of his relatives, who were members of the firm) ; Macy V. St. Paul & D. R. Co. 35 Minn. 200, 28 N. W. 249 (servant suing em- ployer for injury, after a year's silence, allowed to explain his delay by testifying he was afraid he should lose his place) ; Com. v. Welling- ton, 146 Mass. 566, 16 N. E. 444 (reversing conviction for keeping liquor with intent to sell, because the court excluded evidence that de- fendant had a pending application for license, offered to negative crim- inal intent); Woodruff v. Hurson, 32 Barb. 557, 564 (Allen, J. To repel the inference of malice from evidence of threats to injure, it Is competent to give evidence of friendly acts and relations) ; Persse & B. Paper Works v. Willett, 1 Robt. 131, 19 Abb. Pr. 416 (holding that the witness may state the particular reasons which induced an act al- leged to be fraudulent as to creditors, and that he communicated those reasons to his creditors before the act). For other illustrations, see Criminal Trial Brief. 628 BEIEF ON FACTS. INTEKEST. 1. Previous understanding. 2. Parol evidence. 3. Relevancy. 4. Weight, effect, and sufficiency. For kindred topics, see Accounts; Accottnt Stated; Date; Usage. Presumption concerning the law of other states as to interest, see note to Brown v. Wright (Ark.) 21 L.R.A. 467. 1. Previous understanding. To justify a peculiar manner of computing interest in an ac- count, it is competent to show that the party making the charge fully explained to the other his mode of making interest compu- tations and of charging interest, as an illustration of the manner in which they proposed to conduct the business under the con- tract, as they were about to make the contract.^ 1 Manchester Paper Co. v. Moore, 104 N. Y. 680, 10 N. E. 861. To entitle to interest on unliquidated account without promise to pay it, show I either usage of the trade (Liotard v. Graves, 3 Cai. 226), or practice of the particular house, and previous dealings with it by the debtor. Reab v. McAlister, 8 Wend. 109, affirming 4 Wend. 483. 2. Parol evidence. It is not competent to prove that a note which expressly fixes the rate of interest drew interest at a less rate.* 1 Davis V. stout, 126 Ind. 12, 25 N. E. 862. 3. Relevancy. In an action by a depositor to recover interest from a bank, evidence that the plaintiff had deposits in other banks upon which he was allowed interest, of which the defendant had no knovidedge, is incompetent.'' 1 McLoghlin v. National Mohawk Valley Bank, 139 N. Y. 514, 34 N. E. 1095. 4. Weight, effect, and sufficiency. An indorsement on a note that from the date thereof only 6 i]srToxicATioiir. 629 per cent interest is to be paid does not show that a greater rate had been previously paid.* A finding that a debtor agreed to pay 10 per cent interest on the debt is sustained by evidence that he admitted that he owed the debt and interest, and evidence of other persons that the amount originally agreed to be paid on the debt was 10 per cent.^ Credits of interest at various rates on balances in a bank's account with a depositor extending over a certain time do not warrant a finding that there was an agreement to pay interest so long as the depositor might leave his money, — especially when there is positive evidence that the depositor was notified at a certain date that interest would no longer be paid, and that from thenceforth the deposit was left with the understanding that it should not draw interest.' 1 Wray v. Craig, 18 Ky. L. Eep. 930, 33 S. W. 883. a Whiteman v. McFarland, 68 111. App. 295. SMcLoghlin v. National Mohawk Valley Bank, 139 N. Y. 614, 34 N. E, 1095. INTOXICATION". 1. Direct testimony. 2. Customary manner of acting. 3. Intemperate habits. 4. Presumption and burden of proof. 5. Weight. See also Chabactee; Habit. Admissibility of evidence of drunkenness in extenuation of crime, see note to Aszman v. State (Ind.) 8 L.R.A. 33. For intoxication as evidence of negligence, see note to Kingston v. Ft. Wayne & E. R. Co. (Mich.) 40 L.R.A. 143. 630 BEIEF ON FACTS. 1. Direct testimony. A witness who had adequate opportunity of observation may testify directly whether a person whom he saw was intoxicated, or appeared to be under the influence of liquor.' So, where his opportunity for observation has been ample, he may state whether or not a certain person is temperate or in- temperate.* 1 People V. Eastwood, 14 N. Y. 562, affirming 3 Park. Grim. Rep. 25 (lead- ing case) ; Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401 (dic- tum) ; Bradley v. Second Ave. R. Co. 8 Daly, 289 (action for negli- gence causing death. Testimony that the "deceased came staggering over to catch the horses by the heads; he seemed to me to be drunk, but I could not say positively that he was," — ^held, sufficient to go to the jury). Drunkenness may be proved by the testimony of ordinary observers. Peo- ple ex rel. Flood v. Martin, 15 Misc. 6, 36 N. Y. Supp. 437 ; People ex rel. Kelly v. MacLean, 37 N. Y. S. R. 628, 13 N. Y. Supp. 677; Me- Killop V. Duluth Street R. Co. 53 Minn. 532, 55 N. W. 739; State v. Ryan, 122 La. 1095, 48 So. 537; State v. Gather, 121 Iowa, 106, 96 N. W. 722; Campbell v. Fidelity & G. Co. 109 Ky. 661, 60 S. W. 492; Com. V. Eyler, 217 Pa. 512, 11 L.R.A.(N.S.) 639, 66 Atl. 746, 10 Ann. Gas. 786, and cases in note to report of this last case in 11 L.R.A. (N.S.) 639. Nonexpert witnesses who are well acquainted with a given person and familiar with her habits as to the use of morphine and its effects upon her are competent to give their opinion as to whether at a given time she was under the influence of morphine. Burt v. Burt, 168 Mass. 204, 46 N. E. 622. Witnesses in a criminal trial where the defense is that the prisoner was so intoxicated as not to be responsible for his acts may not only de- scribe his condition, conduct, or words, but may express an opinion as to whether he was drunk or sober. People v. Gaynor, 33 App. Div. 98, 53 N. Y. Supp. 86. The witnesses may testify as to whether the plaintiff was intoxicated at the time he was injured, as against the objection that it is the expres- sion of an opinion. Edwards v. Worcester, 172 Mass. 104, 51 N. E. 447. Evidence of the appearance of deceased at the time of the injury causing death, in respect to intoxication, and his ability to take care of himself, is competent in an action on an insurance policy, where the issue is whether the injury was caused by intoxication or not. Cook v. Standard Life & Acci. Ins. Co. 84 Mich. 12, 47 N. W. 568. Evidence that from the way plaintiff's intestate, who was killed by a col- lision at a crossing, walked and got into his wagon, it looked as if he INTOXICATION. 631 was intoxicated, ia admissible. Felska v. New York C. & H. K. K. Co. 152 N. Y. 339, 46 N. E. 613. 2 Taylor v. Security Life & Annuity Co. 145 N. C. 383, 15 L.E.A.(N.S.) 583, 59 S. E. 139, 13 Ann. Cas. 248; Gallagher v. People, 120 111. 179, 11 N. E. 335; Smith v. Smith, 11 Ky. L. Rep. 859; Stanley v. State, 26 Ala. 20. But in Batchelder v. Batchelder, 14 N. H. 380, it was held not to be enough to prove a person to be an habitual drunkard by testifying, in strong general terms, that he was such, the court saying that the witnesses should have given the particular facts and instances of drunkenness, leaving it to the court to judge whether or not they amounted to habitual drunkenness. So, in Golding v. Golding, 6 Mo. App. 602, it was said that testimony of experts and familiar acquaintances as to whether the defendant in a divorce suit was an habitual drunkard was properly excluded. 2. Customary manner of acting. It is competent to show how a person was accustomed to act when intoxicated on other occasions, for the purpose of giving character to acts relied on as evidence of intoxication.^ 1 State V. Huxford, 47 Iowa, 16; Upstone v. People, 109 111. 169 (murder, defense, insanity. It was shown on behalf of the accused that he was intoxicated at the time of the homicide. Held, proper to permit the prosecution to introduce evidence of previous intoxication as bearing on the question of intoxication at the time of the killing and of the conduct of the accused while in that state). 3. Intemperate habits. Evidence of general intemperate habits is not, alone, compe- tent as showing actual intoxication at a particular time,^ but is competent, and so is an adjudication of habitual drunkenness had under the statute, as showing susceptibility to fraud or un- due influence at a particular time.* 1 Edwards v. Worcester, 172 Mass. 104, 51 N. E. 447 ; Eeens v. Mail & Exp. Pub. Co. 10 Misc. 122, 30 N. Y. Supp. 913; Senecal v. Thousand Island S. B. Co. 79 Hun, 574, 29 N. Y. Supp. 884; Lane v. Missouri P. R. Co. 132 Mo. 4, 33 S. W. 645, 1128; Carter v. Seattle, 19 Wash. 597, 53 N. W. 1102. The habits of a motorman as to the use of intoxicants prior to the day of the accident are not admissible on the question of his negligence, but it is competent to show his condition as to the use of intoxicants on 632 BRIEF ON FACTS. the day of the injury. Fitzpatrick v. Bloomington City E. Co. 73 III. App. 516. Evidence as to the intoxicated condition of the defendant a few days before the commission of the alleged crime, leading up to the day of its com- mission, is competent as bearing upon his condition on that day, where the defense is that he was so intoxicated as not to be responsible for his acts. People v. Gaynor, 33 App. Div. 98, 53 N. Y. Supp. 86. Proof that a person at some time previous had the reputation of being in- temperate is not proof of the fact that he had such habit, and does not support an inference that he was intoxicated at the time of the accident. Cosgrove v. Pitman, 103 Cal. 268, 37 Pac. 232. 2 Stirling v. Hinckley, 2 Sadler (Pa.) 176, 4 Atl. 358 (suit to overhaul contract ) . How near the time to which the evidence relates must be to the time in issue, depends on the nature of the issue. See State v. Hubbard, 60 Iowa, 466, 15 N. W. 287 (holding, in criminal prosecution for selling to intoxicated person, that intoxication six hours after the sale was not enough) ; and State v. Pierce, 65 Iowa, 85, 21 N. W. 195 (holding that intoxication after leaving saloon is competent as tending to show he became intoxicated there) ; People v. O'Neil, 112 N. Y. 355, 19 N. E. 796, 800 (as part of the conduct or demeanor which is competent, the fact that one accused of arson was, at a time subsequent to the fire, and some days previous, drinking a good deal, is comne- tent ) . 4. Presumption and burden of proof. The habitual drunkenness of a testator raises no presumption that he was intoxicated when he executed his will; ^ hut con- testants of the will must show the testator's intoxication at the exact time of the execution of the instrument.* 1 Re Sutherland, 28 Misc. 424, 59 N. Y. Supp. 989. S Re Woolsey, 17 Misc. 547, 41 N. Y. Supp. 263. 5. Weight. Testimony that the witness never saw a certain person intox- icated cannot overcome the positive testimony of those who swear that they have seen such person intoxicated.^ But conflicting evidence as to whether or not one who had been known to be under the influence of intoxicating liquor was intemperate in its use does not require the application of JUDICIAL NOTICE. 633 the rule that positive is of greater weight than negative testi- mony.* 1 iEtna L. Ins. Co. v. Ward, 140 U. S. 76, 35 L. ed. 371, 11 Sup. Ct. Rep. 720; iEtna L. Ins. Co. v. Davey, 40 Fed. 911. 2 Taylor v. Security Life & Annuity Co. 145 N. C. 383, 15 L.E.A.(N.S.) 583, 59 S. E. 139, 13 Ann. Cas. 248. JUDICIAL ITOTICE. I. By CotTKT. 1. In general. 2. Laws. 3. Official and judicial character and acts. 4. Political, historical, and geographical matters. II. By Juby. See also Abbreviations, § 1; Ability, § 1; Acceptance, § 1; Business, § 1; Construction, § 1; Mails, § 1; Name and Designation, § 1; Navigabil- ity, § 1; Necessaries and Necessity, § 1; Newspapers, § 2; Official Character and Acts, § 1; Photographs, § 1; Pregnancy, § 1; Seals, § 2; Telep&ones, § 1. I. By Couet. 1. In general. The court will take judicial notice that its attorneys are at least twenty-one years old,^ that a certain date or day of the month falls on Sunday,^ that the term "month" in a statute means a calendar month,* and that it is the common belief that vaccination is a preventive of smallpox.* So judicial notice may he tal^en of the laws of mathematics,' of legal holidays,* of the ordinary meaning of all words in our own tongue,'' of common abbreviations and symbols,' of mortality tables,® of the height of the human body and the measurements of its several parts,^" of electricity and of its properties and common uses,*^ of the nature and sources of artesian wells,^* of the intoxicat- ing character of a mixed drink,^' of the contents of the Bible, 634 BRIEF ON FACTS. and that the religious world is divided into sects, and of the general doctrines maintained by each sect; " but not of the na- ture and powers of the Holy Roman Catholic Church so far as its civil rights and duties are concerned.** So many things in regard to railroad business may be judicially noticed.'^ For instance, judicial notice may be taken that brakemen are bound to obey a conductor's orders,''' that the authority of railroad con- ductors does not extend to carrying passengers without payment of regular fare ; *' but not that it is within the line of a brake- man's authority to put trespassers off from a freight train.''' Judicial notice may be taken that a street railway is a com- mon carrier of passengers,^" that trolley lines had not super- seded horse cars at a certain date ; ^' but not that a cable car or a horse car is so constructed and operated as to require the same means of protection for operators as is required on electric cars.^^ It may be judicially noticed that telegraph messages must be written,^' that certa,in places constitute the chief com- mercial centers of the state, as well as the cotton-producing re- gions thereof ; ^* but not that certain specified cotton-oil mills in- clude all such oil mills in the state.^* Judicial notice may be taken of the population of counties, towns, cities, etc.,^* and of the season of the year at which a crop should mature ; ^^ also of the season for planting.^' The court will take judicial notice of the computation of time and the coincidence of days of the week with days of the month.^' But the courts are not bound to take judicial notice of the reasonable time necessary for transportation of express matter from one well-known city to another.'** Judicial notice may be taken of usual stock in trade ; " of the custom in cities to construct vaults under sidewalks in front of business blocks ; '^ of a custom in a state to assess ordinary- realty for taxation at a rate not to exceed 15 per cent of the actual value.'' 1 Booth v. Kingsland Ave. Bldg. Asso. 18 App. Div. 407, 46 N. Y. Supp. 457. 2Ryer v. Prudential Ins. Co. 85 App. Div. 7, 82 N. Y. Supp. 971; Jordan V. Chicago & A. E. Co. 92 Mo. App. 84. sOehler v. Walsh, 28 Ohio C. C. 446; Simmons v. Hanne, 50 Fla. 267, 39 So. 77, 7 Ann. Cas. 322. JUDICIAL NOTICE. 635 4Jacobson v. Massachusetts, 197 U. S. l]j 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765; Ee Viemeister, 179 N. Y. 235, 70 L.R.A. 796, 103 Am. St. Eep. 859, 72 N. E. 97, 1 Ann. Cas. 334; Com. v. Pear, 183 Mass. 242, 67 L.R.A. 935, 66 N. E. 719. 5 Falls V. United States Sav. Loan & Bldg. Co. 97 Ala. 417, 24 L.R.A. 174, 38 Am. St. Rep. 194, 13 So. 25. 6 People V. Ackerman, 80 Mich. 588, 45 N. W. 367; Sasscer v. Farmers' Bank, 4 Md. 409; Ellis v. Reddin, 12 Kan. 306; Rice v. Mead, 22 How. Pr. 445; State v. Minnick, 15 Iowa, 123; Salmon Falls Mfg. Co. v. The Tangier, 3 Ware, 121, Fed. Cas. No. 12,267 ; Brough v. Parkings, 2 Ld. Raym. 993. But judicial notice cannot be taken of the fact that on Thanksgiving Day it was the custom to cease work in loading or unloading ships. Richardson v. Goddard, 23 How. 28, 16 L. ed. 412. I Nix V. Hedden, 149 U. S. 304, 37 L. ed. 745, 13 Sup. Ct. Rep. 881 ; Toplitz V. Hedden, 146 U. S. 252, 36 L. ed. 961, 13 Sup. Ct. Rep. 70; Sonn v. Magone, 159 U. S. 417, 40 L. ed. 203, 16 Sup. Ct. Eep. 67; Sinnott V. Colombet, 107 Cal. 187, 28 L.R.A. 594, 40 Pac. 329. 8 Power V. Bowdle, 3 N. D. 107, 21 L.R.A. 328, 44 Am. St. Rep. 511, 54 N. W. 404; Vogt V. Schienebeck, 122 Wis. 491, 67 L.R.A. 756, 106 Am, St. Eep. 989, 100 N. W. 820, 2 Ann. Cas. 814. See also Abbreviations, §1. But the commercial designation of an article is not a matter of which courts can take judicial notice. Seeberger v. Schlesinger, 152 U. S. 581, 38 L. ed. 560, 14 Sup. Ct. Eep. 729. 9 Lincoln v. Power, 151 U. S. 436, 38 L. ed. 224, 14 Sup. Ct. Eep. 387; Kansas City, M. & B. E. Co. v. Phillips, 98 Ala. 159, 13 So. 65; Nelson v. Branford Lighting & Water Co. 75 Conn. 548, 54 Atl. 303; Shover V. Myrick, 4 Ind. App. 7, 30 N. E. 207. 10 Hunter v. New York, 0. & W. R. Co. 116 N. Y. 615, 6 L.R.A. 246, 23 N. E. 9. II Alexander v. Nantiooke Light Co. 209 Pa. 571, 67 L.R.A. 475, 58 Atl. 1068; Crawfordsville v. Braden, 130 Ind. 149, 14 L.R.A. 268, 30 Am. St. Rep. 214, 28 N. E. 849; State ex rel. Laclede Gaslight Co. v. Murphy, 130 Mo. 10, 31 L.R.A. 798, 31 S. W. 594, affirmed by the Supreme Court of the United States in 170 U. S. 78, 42 L. ed. 955, 18 Sup. Ct. Rep. 505. 18 Huber v. Merkel, 117 Wis. 355, 62 L.R.A. 589, 98 Am. St. Rep. 933, 94 N. W. 354. 13 United States v. Ash, 75 Fed. 651; State v. Pigg, 78 Kan. 618, 19 L.R.A.(N.S.) 848, 130 Am. St. Eep. 387, 97 Pac. 859. 14 State ex rel. Weiss v. District Board, 76 Wis. 177, 7 L.E.A. 330, 20 Am St. Eep. 41, 44 N. W. 967; Smith v. Pedigo, 145 Ind. 392, 32 L.E.A 838, 44 N. E. 363. 15 Baxter v. McDonnell, 155 N. Y. 83, 40 L.E.A. 670, 49 N. E. 667. 16 Cleveland, C. C. & St. L. R. Co. v. Jenkins, 174 111. 398, 62 L.R.A. 922, 66 Am. St. Rep. 296, 51 N. E. 811; Atchison, T. & S. F. R. Co. v. 636 BEIEF ON PACTS. Headland, 18 Colo. 477, 20 L.R.A. 822, 33 Pac. 185; Burlington, C. R. & N. E. Co. V. Dey, 82 Iowa, 312, 12 L.R.A. 436, 3 Inters. Com. Rep. 584, 31 Am. St. Rep. 477, 48 N. W. 98; Louisville & N. R. Co. V. Roland, 96 Ala. 626, 18 L.R.A. 260, 11 So. 667; Condran v. Chicago, M. & St. P. R. Co. 28 L.R.A. 749, 14 C. C. A. 506, 32 U. S. App. 182, 67 Fed. 522, (railroad business generally). "Mason v. Richmond & D. R. Co. Ill N. C. 482, 18 L.R.A. 845, 32 Am. St. Rep. 814, 16 S. E. 698. 18 Condran v. Chicago, M. & St. P. R. Co. 28 L.R.A. 749, 14 C. C. A. 506, 32 U. S. App. 182, 67 Fed. 522. 19 Farber v. Missouri P. R. Co. 116 Mo. 81, 20 L.R.A. 350, 22 S. W. 63L 20 Donovan v. Hartford Street R. Co. 65 Conn. 201, 29 L.R.A. 297, 32 Atl. 350. 21 Meyer v. Krauter, 56 N. J. L. 696, 24 L.R.A. 575, 29 Atl. 426. 22 State V. Nelson, 52 Ohio St. 88, 26 L.R.A. 317, 39 N. E. 22. 23 People ex rel. Cairo Teleph. Co. v. Western U. Teleg. Co. 166 111. 15, 36 L.R.A. 637, 46 N. E. 731. 24 Texas Standard Cotton Oil Co. v. Adoue, 83 Tex. 650, 15 L.R.A. 298, 29 Am. St. Rep. 690, 19 S. W. 274. 25 Ibid. 26 Farley v. McConnell, 7 Lans. 428, affirmed without opinion in 52 N. Y, 630; State ex rel. Atty. Gen. v. Dolan, 93 Mo. 467, 6 S. W. 366; Ben- nett v. Marion, 106 Iowa, 628, 76 N. W. 844, and cases cited; Brown V. Lutz, 36 Neb. 527, 54 N. W. 860; Mertz v. Brooklyn, 33 N. Y. S. R. 577, 11 N. Y. Supp. 778 ; Denney v. State ex rel. Basler, 144 Ind. 503, 31 L.R.A. 726, 42 N. E. 929. See also note to Olive v. State (Ala.) 4 L.R.A. 33; Ferrell v. Ellis, 129 Iowa, 614, 105 N. W. 993; Whitley County V. Garty, 161 Ind. 464, 68 N. E. 1012. The supreme court of Missouri took judicial notice of the fact that St. Louis was the one city in the state with a population exceeding 300,- 000. State v. Anslinger, 171 Mo. 600, 71 S. W. 1041. See also State ex rel. Crow v. Page, 107 Mo. App. 213, 80 S. W. 912 ; Schweirman v. Highland Park, 130 Ky. 537, 113 S. W. 507. 27 Floyd V. Ricks, 14 Ark. 286, 58 Am. Dec. 374 (dictum) ; Haines v. Snedi- gar, 110 Cal. 18, 42 Pac. 462; Piano Mfg. Co. v. Cunningham, 73 Mo App. 376; Payne v. McCormick Harvesting Mach. Co. 11 Okla. 318, 66 Pac. 287. Or that on a certain date crops have been planted, have come up, and are growing, but are not matured. Naftel v. Osborn, 96 Ala. 623, 12 So. 182. Contra, where the time varies. Culverhouse v. Worts, 32 Mo. App. 419. Or of crops in another county. Dixon v. Niecolls, 39 111. 372, 89 Am. Dec. 312. And of the time when the pasturing season closes. Gove v. Downer, 59 Vt. 139, 7 N. E. 463. 28Burwell v. Brodie, 134 N. C. 540, 47 S. E. 47. 29 Dorough V. Equitable Mortg. Co. 118 Ga. 178, 45 S. E. 22. JUDICIAL NOTICE. 637 SO Rice V. Montgomery, 4 Bias. 75, Fed. Cas. No. 11,753. Compare Central Vermont E. Co. v. Soper, 8 C. C. A. 341, 21 U. S. App. 24, 59 Fed. 879 (notice taken that on bills of lading for shipment of grain from Chicago to Boston, with the right to hold at Ogdensburg for orders, the entire transit may not unreasonably consume the whole of thirty days) ; St. Clair V. Chicago, B. & Q. R. Co. 89 Iowa, 304, 45 N. W. 570 (common knowledge that freight ought ordinarily to be transported a distance of 64 miles in less than four days, in support of charge of negligence, where there is no evidence of the number of necessary transfers of the ears) ; United States v. Thornton, 160 U. S. 654, 40 L. ed. 570, 16 Sup. Ct. Ecp. 415 (notice taken that time consumed in going from Mare island, Cali- fornia, to Washington, D. C, and return, would exceed four days). Otherwise of the mails. See Mails. 81 Steinbach v. Lafayette F. Ins. Co. 54 N. Y. 90. Contra, Whitmarsh v. Charter Oak F. Ins. Co. 2 Allen, 581. Not taken of local custom in municipal affairs. Re Walter, 75 N. Y. 354. The court will apply a, general custom without proof, but a local usage must be proved. Todd v. Howell, 47 Ind. App. 665, 95 N. E. 278 ssBaffage v. Powers, 130 N. Y. 281, 14 L.R.A. 398, 29 N. E. 132. 33 Railroad & Teleph. Cos. v. Board of Equalizers, 85 Fed. 302. 2. Laws. All courts take notice of the Constitution of the United States/ of acts of Congress/ of treaties of the United States/ and of all public laws of the state where they are exercising their functions.* And Federal courts ordinarily take judicial notice of all public statutes of the several states/ but the Su- preme Court of the United States, on review of a judgment of a state, cannot take judicial notice of the laws of another state, except where the court below takes judicial notice of them by the local law.* Courts will take judicial notice of en- tries in legislative journals.'' And where countries have been acquired by the United States, its courts take judicial notice of the laws which prevailed up to the time of such acquisition.' But judicial notice will not be taken of municipal ordinances,' nor of foreign laws,*" nor of the laws of a sister state.** How- ever, the rule that courts of one state or country will not take judicial cognizance of the laws of another merely means that they will not take notice of the specific law of a foreign juris- diction on a particular subject, and does not preclude the courts of one jurisdiction from taking judicial notice of the system of 638 BEIEF ON FACTS. law which is the basis of the jurisprudence of another jurisdic- tion.^^ 1 Furman v. Nichol, 8 Wall. 44, 19 L. ed. 370 ; Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 60. 2 Spokane Falls & N. E. Co. v. Ziegler, 167 U. S. 65, 42 L. ed. 79, 17 Sup. Ct. Rep. 728; Benner v. Atlantic Dredging Co. 134 N. Y. 156, 17 L.E.A. 220, 30 Am. St. Rep. 649, 31 N. E. 328. 3 United States v. Rauscher, 119 U. S. 407, 30 L. ed. 425, 7 Sup. Ct. Rep. 234, 6 Am. Crim. Rep. 222 ; Ex parte McCabe, 12 L.R.A. 589, 46 Fed. 363. And that treaties of the United States with Indian tribes are judicially noticed, see Gay v. Thomas, 5 Okla. 1, 46 Pac. 578. While the courts of the United States take judicial notice of its treaties with other countries, the burden is upon the party asserting a treaty relied upon him to inform the court, when in fact without knowledge of tlie subject, of its existence and terms. Riehter v. Reynolds, 8 C. C. A. 220, 17 U. S. App. 427, 59 Fed. 577. 4 Gardner v. The Collector (Gardner v. Barney), 6 Wall. 499, 18 L. ed. 890; Mullan v. State, 114 Cal. 578, 34 L.R.A. 262, 46 Pac. 670; People use of Peoria County v. Hill, 163 111. 186, 36 L.R.A. 634, 46 N. E. 796; Conlin v. San Francisco, 99 Cal. 17, 21 L.R.A. 474, 37 Am. St. Rep. 17, 33 Pac. 753; King County v. Ferry, 5 Wash. 536, 19 L.R.A. 500, 34 Am. St. Rep. 880, 32 Pac. 538. 5 Furman v. Nichol, 8 Wall. 44, 19 L. ed. 370 ; Mutual L. Ins. Co. v. Hill, 49 L.R.A. 127, 38 C. C. A. 159, 97 Fed. 263; Mutual L. Ins. Co. t. Dingley, 49 L.R.A. 132, 40 G. C. A. 459, 100 Fed. 408; Trowbridge v. Spinning, 23 Wash. 48, 54 L.R.A. 204, 83 Am. St. Rep. 806, 62 Pac. 125; Owings v. Hull, 9 Pet. 607, 9 L. ed. 246; Lamar v. Micou, 112 U. S. 452, 28 L. ed. 751, 5 Sup. Ct. Rep. 221. The courts of the United States take judicial notice, not only of the public acts of Congress and of the legislatures of the several states, but also of the rules and regulations prescribed by the several departments for the transaction of the public business ; of the territorial extent of the juris- diction exercised by the government whose laws they execute; of the acts of the executive branch of the government in the enforcement of the treaties or public laws of the country; of all matters of general history or public notoriety; and of the official character of the persons appointed by the President or heads of the departments or of the bureaus therein for the performance of duties created by acts of Congress. United States v. Flournoy Live-Stock & Real Estate Co. 71 Fed. 576. And a proclamation by the governor of a state, after personal investigation, declaring the existence of unlawful combinations of men jeopardizing property, terrorizing the people, and setting the laws at naught, made JUDICIAL NOTICE. 639 part of the record, may be considered by a Federal court on an applica- tion to enjoin a combination of workmen from further unlawful acts against employers. Cceur d' Alene Consol. & Mln. Co. v. Miners' Union, 19 L.R.A. 382, 51 Fed. 260. 6 Therefore the United States Supreme Court on error to a state court of last resort can notice only laws which that state court might notice. Hanley v. Donoghue, 116 U. S. 1, 29 L. ed. 535, 6 Sup. Ot. Rep. 242; Lloyd V. Matthews, 155 U. S. 222, 39 L. ed. 128, 15 Sup. Ct. Rep. 70, s. p., Beaty v. Knowler, 4 Pet. 152, 7 L. ed. 813; Covington Drawbridge Co. V-. Shepherd, 20 How. 227, 15 L. ed. 896; Junction R. Co. v. Bank of Ashland, 12 Wall. 226, 20 L. ed. 385. But in a state in which the state courts are required to notice a private or local law, the United States courts must do the same. Beaty v. Knowler, 4 Pet. 152, 7 L. ed. 813. 7 South Ottawa v. Perkins, 94 U. S. 260, 24 L. ed. 154. 8 United States v. Perot, 98 U. S. 428, 25 L. ed. 251; United States v. Turner, 11 How. 663, 13 L. ed. 857; Fremont v. United States, 17 How. 542, 15 L. ed. 241. The California courts will take judicial notice of the laws of Spain and Mexico in force in California prior to the conquest, in adjudicating upon rights originating thereunder, in the same manner and to the same ex- tent as they will take notice of the common law. Ohm v. San Francisco, 92 Cal. 437, 28 Pac. 580. So, also, will judicial notice of the laws and regulations of Mexico pertain- ing to grants made prior to the cession of New Mexico be taken in an action to establish a Mexican grant in that territory. United States v. Chaves, 159 U. S. 452, 40 L. ed. 215, 16 Sup. Ct. Rep. 57. And, according to Crespin v. United States, 168 U. S. 208, 42 L. ed. 438, 18 Sup. Ct. Rep. 53, judicial notice of the laws of Mexico as they existed at the time of an alleged grant of lands must be taken by the Supreme Court of the United States in determining the validity of such grant. sShanfelter v. Baltimore, 80 Md. 483, 27 L.R.A. 648, 31 AtL 439; St. Louis V. Liessing, 190 Mo. 464, 1 L.R.A. (N.S.) 918, 109 Am. St. Rep. 774, 89 S. W. 611, 4 Ann. Cas. 112. 10 Armstrong v. Lear, 8 Pet. 52, 8 L. ed. 863; Ennis v. Smith, 14 How. 400, 14 L. ed. 472; Church v. Hubbart, 2 Cranch, 187, 2 L. ed. 249; Strother v. Lucas, 6 Pet. 763, 8 L. ed. 573; Dalnese v. Hale, 91 U. S. 13, 23 L. ed. 190; Liverpool & G. W. S. B. Co. v. Phenix Ins. Co. 129 U. S. 397, 32 L. ed. 788, 9 Sup. Ct. Rep. 469; Southern Dlinois * M. Bridge Co. v. Stone, 174 Mo. 1, 63 L.R.A. 301, 73 S. W. 453; Electric Welding Co. v. Prince, 200 Mass. 386, 128 Am. St. Rep. 434, 86 N. E. 947. An American court cannot take judicial notice of the law of a foreign nation; (Dainese v. Hale, 91 U. S. 13, 23 L. ed. 190, reversing judg- ment on demurrer, for failure to plead such law; Shannon v. Wolf, 173 111. 253, 50 N. E. 682; see also note to Olive v. State [Ala.] 4 640 BEIEF OIT FACTS. L.E.A. 33, 41), unless it has been recognized and promulgated by our own government (Talbot v. Seeman, 1 Cranch, 1, 2 L. ed. 15, allowing courts of admiralty to notice public laws on a subject of common con- cern to all nations, when so promulgated ) . 11 Chicago & A. E. Co. v. Wiggins Ferry Co. 119 U. S. 615, 30 L. ed. 519, 7 Sup. Ct. Eep. 398; Eastern Bldg. & L. Asso. v. Ebaugh, 185 U. S. 114, 46 L. ed. 830, 22 Sup. Ct. Eep. 566; Hanley v. Donoghue, 116 U. S. 1, 29 L. ed. 535, 6 Sup. Ct. Eep. 242 ; Conrad v. Fisher, 37 Mo. App. 352, 8 L.E.A. 147; Adams Exp. Co. v. Walker, 119 Ky. 121, 67 L.E.A. 412, 83 S. W. 106; Smith v. Aultman, 120 Mo. App. 462, 96 S. W. 1034; App. V. App. 106 Va. 253, 55 S. E. 672. Some of the courts have held that the courts of one state cannot judicially notice the laws of a sister state. For example, see St. Louis & S. F. E. Co. V. Weaver, 35 Kan. 412, 57 Am. Eep. 176, 11 Pac. 408 (refusing to take judicial notice of a peculiar common-law rule prevailing in Ar- kansas; and saying that the court cannot do so) ; Trebilcox v. McAl- pine, 46 Hun, 469; Witascheck v. Glass, 46 Mo. App. 209; Scroggin v. McClelland, 37 Neb. 644, 22 L.E.A. 110, 56 N. W. 208; Hancock Nat. Bank v. Ellis, 166 Mass. 414, 44 N. E. 349; Jackson v. Jackson, 80 Md. 176, 30 Atl. 752; Duke v. Taylor, 37 Fla. 64, 31 L.E.A. 484, 19 So. 172. Others, that they will not do so. Schultz v. Howard, 63 Minn. 196, 65 N. W. 363 ; McDaniel v. Pressler, 3 Wash. 636, 29 Pac. 209; Bollinger v. Gallagher, 144 Pa. 205, 22 Atl. 815. Others, that they are not bound so to do. Osborn v. Blackburn, 78 Wis. 209, 10 L.E.A. 367, 47 N. W. 175. But that the courts of Illinois will take notice of the laws of another state, where the validity of a judgment or decree of such state is in question, so far as may be necessary to ascertain the faith and credit to be given to such judgment or decree under the Constitution and laws of the United States, see Knowlton v. Knowlton, 51 111. App. 71. And by express statutory provision in West Virginia the court may so do. and in so doing may consult any book purporting to state or explain the same, and consider any testimony, information, or argument offered on the subject. Wilson v. Phoenix Powder Mfg. Co. 40 W. Va. 413, 21 S. E. 1035. See also cases in note in 67 L.E.A. 33. 12 Copley V. Sanford, 2 La. Ann. 335, 46 Am. Dee. 548; Eush v. Landers, 107 La. 549, 57 L.E.A. 353, 32 So. 95; Banco De Sonora v. Bankers' Mut. Casualty Co. — Iowa, — , 95 N. W. 232. For note on question of judicial cognizance of foreign law, see 67 L.E.A. 33. 3. Official and judicial character and acts. A court will not take notice, in deciding one case, of what may appear from its own record in another and distinct case, unless it is brought to the attention of the court by being made JUDICIAL NOTICE. 641 a part of the record of the case under consideration,* even though the other action is between the same parties.* There are some exceptions to the general rule, which, however, do not conflict with, but fall outside, the general rule because of their peculiar facts.* But the court may take judicial notice of a decree in proceedings to punish a violation of the same as •contempt ; * and for this reason it is not necessary to set out an injunction decree in the complaint, affidavit, or petition to punish for contempt in violating it.* And courts will not take judicial notice of the decisions of courts of another state.® Judicial notice is talcen of facts shown by public archives,' and of official proclamations and messages of the Executive.' ■Courts will take judicial notice of the census taken under the authority of the state or of the United States.' J Bank of Montreal v. Taylor, 86 111. App. 388 ; National Bank v. Bryant, 13 Bush, 419; Anderson v. Cecil, 86 Md. 490, 38 Atl. 1074; Gibson V. Buclcner, 65 Ark. 84, 44 S. W. 1034; Hall v. Cole, 71 Ark. 601, 76 S. W. 1076; Enix v. Miller, 54 Iowa, 551, 6 N. W. 722; Bond v. White, 24 Kan. 45; Stanley v. McElrath, 86 Cal. 449, 10 L.R.A. 545, 25 Pac. 16; Lake Merced Water Co. v. Cowles, 31 Cal. 215; Ralphs v. Hensler, 97 Cal. 296, 32 Pac. 243; Banks v. Burnam, 61 Mo. 76; Grace V. Ballou, 4 S. D. 333, 56 N. W. 1075; OUschlager's Estate, 50 Or. 55, 89 Pao. 1049; Lownsdale v. Grays Harbor Boom Co. 54 Wash. 542, 103 Pac. 833; Wellman v. Hoge, 66 W. Va. 234, 66 S. E. 357; Pickens V. Coal River Boom Co. 66 W. Va. 10, 24 L.R.A. (N.S.) 354, 65 S. E. 865; Matthews v. Matthews, 112 Md. 582, 29 L.R.A. (N.S.) 90.j, 77 Atl. 249. 3 Watkins v. Martin, 69 Ark. 311, 65 S. W. 103, 425 ; Murphy v. Citizens' Bank, 82 Ark. 131, 11 L.R.A. (N.S.) 616, 100 S. W. 894, 12 Ann. Cas. 535; Streeter v. Streeter, 43 111. 155; McCormick v. Herndon, 67 Wis. 648, 31 N. W. 303; Spurlock v. Missouri P. R. Co. 76 Mo. 67. ■8 See Minor v. Stone, 1 La. Ann. 283 ; Farrar v. Bates, 55 Tex. 193 ; Baze v. Island City Mfg. Co. — Tex. Civ. App. — , 94 S. W. 460 ; Gay v. Gay, 146 Cal. 237, 79 Pac. 885; Butler v. Eaton, 141 U. S. 240, 35 L. ed. 713, 11 Sup. Ct. Rep. 985; Avocato v. Dell'Ara, — Tex. Civ. App. — , 84 S. W. 444; Louisville Trust Co. v. Cincinnati, 22 C. C. A. 334, 47 U. S. App. 36, 76 Fed. 296; Story v. Ulman, 88 Md. 244, 41 Atl. 120: Re Transfer Penalty Cases, 46 Misc. 579, 92 N. Y. Supp. 322; Chit- tenden V. Whitbeck, 50 Mich. 401, 15 N. W. 526. 4 Wilson V. Caleulagraph Co. 83 C. C. A. 77, 153 Fed. 961; Hake v. People, 230 111. 174, 82 N. E. 561 ; Bunting v. Powers, 144 Iowa, 65, 120 N. W. 679; Ochampaugh v. Powers, — Iowa, — , 120 N. W. 680; Haaren Abb. Facts — 41. 642 EniEF ON FACTS. V. Mould, 144 Iowa, 296, 24 L.E.A.(N.S.) 404, 122 N. W. 921; Ex parte Ah Men, 77 Cal. 198, 11 Am. St. Rep. 263, 19 Pac. 380. 6 Silvers v. Traverse, 82 Iowa, 52, 11 L.E.A. 804, 47 N. W. 888; Sweeny V. Traverse, 82 Iowa, 720, 47 N. W. 889; State v. Walker, 78 Kan. 680, 97 Pae. 862. 6 Southern Exp. Co. v. Owens, 146 Ala. 412, 8 L.E.A. (N.S.) 369, 119 Am. St. Rep. 41, 41 So. 752, 9 Ann. Cas. 1143. 7UntIerliill v. Hernandez, 168 U. S. 250, 42 L. ed. 456, 18 Sup. Ct. Eep. 83; United States v. Teschmaker, 22 How. 392, 16 L. ed. 353; Romero- V. United States, 1 Wall. 721, 17 L. ed. 627; Coffee v. Groover, 123 U. S. 1, 31 L. ed. 51, 8 Sup. Ct. Rep. 1. SWelLs V. Missouri P. R. Co. 110 Mo. 286, 15 L.E.A. 847, 19 S. W. 530; Coeur d'Alene Consol. Min. Co. v. Miners' Union, 19 L.E.A. 382, 51 Fed. 260; The Three Friends, 166 U. S. 1, 41 L. ed. 897, 17 Sup. Ct. Eep. 495; Jenkins v. Collard, 145 U. S. 546, 36 L. ed. 812, 12 Sup. Ct. Eep. 868; Armstrong v. United States, 13 Wall. 154, 20 L. ed. 614. 9 State ex rel. Atty. Gen. v. Cunningham, 81 Wis. 440, 15 L.E.A. 561, 51 N. W. 724; Parker v. State, 133 Ind. 178, 18 L.E.A. 567, 32 N. E. 836, 33 N. E. 119; Denney v. State, 144 Ind. 503, 31 L.E.A. 726, 42 N. E. 929 ; State ex rel. Crow v. Evans, 166 Mo. 347, 66 S. W. 355. 4. Political, historical, and geographical matters. The courts will take judicial notice of the sustoms and usages governing the creation and existence of political parties, which are matters of general knowledge and common informa- tion.^ Judicial notice will be taken of the necessary qualifica- tion of voters ; ^ of the number of votes cast at a general state election ; * that primary elections have grown to be an essential part of our political system.* But the rule that the court will take notice of political divisions does not require it to take no- tice of local divisions made by local officers * as distinguished from those made by the legislature or by public act of some branch of the executive department of the state government.* It may,' but is not bound ' to, notice that a certain railroad runs through a given county. Courts will take judicial notice of matters of general public history,^ and a place may be judicially noticed by reason of the historical '" or geographical '* familiarity of its name. Judicial notice will be taken of the geography of a state ; ^^ of the lo.cation of a certain county ; ^' of the size of a town ; " of the distance between certain places ; ^* of the existence of a certain river,^® and of its source, course, and destination ; " that a river is nav- igable ; " and whether the tide ebbs and flows at a given place.^* JUDICIAL NOTICE. 643 1 State ex rel. Howells v. Metcalf, 18 S. D. 393, 67 L.E.A. 331, 100 N. W. 923. 8 Rasmussen v. Baker, 7 Wyo. 117, 38 L.E.A. 773, 50 Pac. 819. 8 Ee Denny, 156 Ind. 104, 51 L.E.A. 722, 59 N. E. 359. 4 State V. Hirseh, 125 Ind. 207, 9 L.E.A. 170, 24 N. E. 1062. 6 Bragg V. Euah County Comrs. 34 Ind. 405, 410 (refusal to notice that there was no town in the state of a given name, because county commission- ers may form and name a town). Compare Diggins v. Hartshorne, 108 Cal. 154, 41 Pac. 283 (to the effect that notice will not be taken of the existence of a street which has been opened or adopted by municipal ordinance, without proof of the pas- sage of the ordinance) . That courts cannot take notice of township lines, see Mayes v. St. Louis, K. & N. W. E. Co. 71 Mo. App. 140; Backenstoe v. Wabash, St. L. & P. R. Co. 86 Mo. 492. 6 As illustrating the rule generally as to judicial notice of political divi- sions, see United States v. Price, 84 Fed. 636; Scheuer v. Kelly, 121 Ala. 323, 26 So. 4; St. Louis, I. M. & S. E. Co. v. Petty, 57 Ark. 359, 20 L.E.A. 434, 21 S. W. 884; People v. Etting, 99 Cal. 577, 34 Pac. 237; Linck v. Litchfield, 141 111. 469, 31 N. E. 123; Carey v. Beeves, 46 Kan. 571, 26 Pac. 951; State v. Simpson, 91 Me. 83, 39 Atl. 287; Bau- mann v. Granite Sav. Bank & T. Co. 66 Minn. 227, 68 N. W. 1074; State V. Pennington, 124 Mo. 388, 27 S. W. 1106; People v. Wood, 131 N. Y. 617, 30 N. E. 243; State v. Snow, 117 N. C. 774, 23 S. E. 322; Hambel v. Davis, 89 Tex. 256, 34 S. W. 439; State ex rel. Atty. Gen. v. Cunningham, 81 Wis. 440, 15 L.R.A. 561, 51 N. W. 724. See also cases reviewed in note to Olive v. State (Ala.) 4 L.E.A. 33. Thus, notice may be taken that the water between two islands in a given bay is within a, specified county, under a statute fixing its boundaries so as to include all the islands in the bay, where no subsequent altera- tion in the county lines has taken place. State v. Thompson, 85 Me. 189, 27 Atl. 97. So, also, of the situation of the streets, squares, and public grounds of Bos- ton, in determining the construction of a statute as to authorizing an entry upon the Public Garden in building a subway, under Mass. Stat. 1894, chap. 548. Prince v. Crocker, 166 Mass. 347, 32 L.R.A. 610, 44 N. B. 446. And of the location of lands described by government subdivisions, as by township, range, and section, and the legal subdivisions thereof; but not of lands designated simply by name or reference to a private sur- vey. Campbell v. West, 86 Cal. 197, 24 Pac. 1000. In Boston v. State, 5 Tex. App. 383, 32 Am. Rep. 575, and Waters v. State, 117 Ala. 189, 23 So. 28, convictions were reversed on the ground that the court could not take notice that a given locality between two towns or known points was within a, specified county. 7 Indianapolis & C. E. Co. v. Case, 15 Ind. 42. 644 BEIEE' ON FACTS, 8 Indianapolis & C. R. Co. v. Stephens, 28 Ind. 429 (proof that an accident happened within half a mile of the town held sufficient that it hap- pened within the county), Followed in Louisville, N. A. & C. R. Co. v. McAfee, 15 Ind. App. 442, 43 N. E. 36. 9 Sparrow v. Strong, 3 Wall. 97, 18 L. ed. 49, 2 Mor. Min. Rep. 320; Bank of Augusta V. Earle, 13 Pet. 519, 10 L. ed. 274; Blake v. United States, 103 U. S. 227, 26 L. ed. 462; Prize Cases, 2 Black, 635, 17 L. ed. 459. ■">Hart V. Bodley, Hardin (Ky. ) 98 (name of a, battlefield used in describ- ing premises) ; Bond v. Perkins, 4 Heisk. (Tenn.) 364 (place within Confederate lines). 11 Cash V. Clark County Auditor, 7 Ind. 227 (falls of Ohio river). See also cases in note to Olive v. State (Ala.) 4 L.R.A. 38. 12 Parker v. State, 133 Ind. 178, 18 L.R.A. 567, 32 N. E. 836, 33 N. E. 119. 13 St. Louis, I. M. & S. R. Co. v. Petty, 57 Ark. 359, 20 L.R.A. 434, 2] S. W. 884; People v. Ebanks, 117 Cal. 652, 40 L.R.A. 269, 49 Pac. 1049; State ex rel. Atty. Gen. v. Cunningham, 81 Wis. 440, 15 L.R.A. 561, 51 N. W. 724. "Western U. Teleg. Co. v. Robinson, 97 Tenn. 638, 34 L.R.A. 431, 37 S. W. 545. 15 Jamieson v. Indiana Natural Gas & Oil Co. 128 Ind. 555, 12 L.R.A. 652, 3 Inters. Com. Rep. 613, 28 N. E. 76; Mutual Ben. L. Ins. Co. v. Robison, 22 L.R.A. 325, 7 C. C. A. 444, 19 U. S. App. 266, 58 Fed. 723; People v. Van Gaasbeck, 189 N. Y. 408, 22 L.R.A. (N.S.) 650, 82 N. E. 718, 12 Ann. Cas. 745. The court should take judicial notice of distance between public places of which it may take judicial notice, even when the question involves only a matter of private right. Hoyt v. Russell, 117 U. S. 401, 29 L. ed. 914, 6 Sup. Ct. Rep. 881 (so held where the object was to as- certain if a, new statute had by its terms come into force at that distance) ; Hinckly v. Beckwith, 23 Wis. 328 (distance of residence of witness from place of trial) ; Mutual Ben. L. Ins. Co. v. Robison, 22 L.R.A. 325, 7 C. C. A. 444, 19 U. S. App. 266, 58 Fed. 723 (distance between Dubuque, Iowa, and Asheville, North Carolina) ; Pettit v. State, 135 Ind. 393, 34 N. B. 1118 (distance between point in Ore- gon and place of trial) ; Blumenthall v. Pacific Meat Co. 12 Wash. 331, 41 Pac. 47. Compare Western U. Teleg. Co. v. Smith, 88 Tex. 9, 28 S. W. 931, 30 S. W. 549 (holding that the distance between the place to which a telegram is addressed and the place to which the addressee was summoned thereby, the means of travel, and the time it would require to make the trip, are not matters of such common knowledge that the jury can determine the issue whether the delay in delivery prevented the sendee from reaching his father before the lat- ter's death, without evidence thereof ) . 16 United States v. Lawton, 5 How. 10, 12 L. ed. 27; Watts v. Lindsey, 7 Wheat. 158, 5 L. ed. 423. JUDICIAL NOTICE. 645 "People V. Truekee Lumber Co. 116 Cal. 397, 39 L.RA. 581, 58 Am. St. Eep. 183, 48 Pac. 374. 18 Pennsylvania v. Wheeling & B. Bridge Co. 13 How. 518, 14 L. ed. 249 ; Terrell v. Padueah, 122 Ky. 331, 5 L.R.A.(N.S.) 289, 92 S. W. 310; The Daniel Ball, 10 Wall. 557, 19 L. ed. 999. 19 Peyroux v. Howard, 7 Pet. 324, 344, 8 L. ed. 700, 707 ; Mobile Dry Docks Co. V. Mobile, 146 Ala. 198, 3 L.R.A.(N.S) 822, 40 So. 205, 9 Ann: Cas. 1229. Tide tables calculated by scientific authors, e. g., Blunt's Coast Pilot and Bowditch's Navigator, may be read in evidence to prove the situation of the tide at a particular time. (Mayor's Ct. 1316), Green v. Corn- well, 1 N. Y. City Hall Kec. 11. The court may take judicial notice of the place in a river where the current is impeded by the tide, and also of the variations between mean high tide and mean low tide at a certain point. Seufferle v. Macfarland, 28 App. D. C. 94 II. By Jury. The ancient doctrine "was that jurors were to render the ver- dict as well upon the facts within their personal knowledge as upon those derived from the testimony of the witnesses testify- ing in the case.^ And the practice of tailing jurors from the vicinage seems to have been adopted under the notion that they might thus he the better qualified from their personal acquaint- ance with the facts, the parties, and their witnesses, to decide the case that might be brought before them. But at the present day it is thought more likely to secure the due administration of justice, to submit cases to impartial and unbiased jurors, and that those are less likely to be so who have come from the im- mediate neighborhood of the parties.^ And it is now an essential element in the trial by jury that the verdict shall be rendered according to the facts of the case lawfully produced to the jury, who are sworn to give their verdict according to the evidence, and they cannot render a verdict upon knowledge within their own breasts ; * though jurors can, undoubtedly, and must, use their judgment more or less, and the weight and credit to be given the evidence should be judged of by the jury in the light of their own experience.* ISTor are they expected to lay aside matters of common knowledge, or their own observation and ex- perience (rf the affairs of life, but may give effect to such in- 646 BRIEF ON FACTS. ferences as common knowledge or their personal observation and experience may reasonably draw from the facts to be proved,* and may apply to the facts proved their general knowledge as intelligent business men.* And the jury may be instructed that in considering the verdict they may bring to its consideration, in determining its weight, such general practical knowledge as they may have upon the subject.^ 1 Sam V. State, 1 Swan, 61 ; Schmidt v. New York Union Mut. F. Ins. Co. 3 Gray, 529, 535. 2 Schmidt V. New York Union Mut. F. Ins. Co. supra. SMltohum V. State, 11 Ga. 615; Clarke v. Robinson, 5 B. Mon. 55; People V. Zelger, 6 Park. Grim. Hep. 355; Gibson v. Carreker, 91 Ga. 617, 17 S. E. 965; Schmidt v. New York Union Mut. F. Ins. Co. 1 Gray. 529; Wood Elver Bank v. Dodge, 36 Neb. 708, 55 N. W. 234; Kruid- enier Bros. v. Shields, 70 Iowa, 428, 30 N. W. 681; Close v. Samm, 27 Iowa, 503; Green v. Hill, 4 Tex. 465. 4 Re Foster, 34 Mich. 21 ; People v. Zelger, 6 Park. Crim. Rep. 355. s Chicago, M. & St. P. R. Co. v. Moore, 23 L.E.A.(N.S.) 962, 92 C. C. A. 357, 166 Fed. 663; State v. Maine C. R. Co. 86 Me. 309, 29 Atl. 1086; White V. Hammond, 79 Ga. 182, 4 S. E. 102; State v. Intoxicating Liquors, 73 Me. 278; Kern v. Wilson, 82 Iowa, 407, 48 N. W. 919; Swain V. Fourteenth Street R. Co. 93 Cal. 179, 28 Pac. 829; O'Neill V. State, 85 Ga. 383, 11 S. E. 856; Freiberg v. State, 94 Ala. 91, 10 So. 703. SKltzinger v. Sanborn, 70 111. 146. 7 Douglass V. Trask, 77 Me. 35; Johnson v. Hillstrom, 37 Minn. 122, 33 N. W. 547. For a full review of the cases on the question of the right of jurors to act on their own knowledge of the facts In or relevant to the issue, see note in 31 L.R.A. 489. KNOWLEDGE. 64:7 KNOWLEDGE. 1. Direct testimony. 2. Probability of knowledge. 3. Circumstantial evidence. 4. Possession. 5. Presumptions and burden of proof. a. Common fact. b. Knowledge of corporation or its officers. c. Of one dealing with corporation. d. Knowledge of principal. e. Knowledge of servant. f. Knowledge of contents presumed from signing or receiving. g. Knowledge of contents presumed from access or from claim, h. Newspaper contents. i. Knowledge of law. (1.) In general. (2.) Foreign law. 6. General reputation. See also Assent; Belief; Good Faith; Intent; Malice; Motive. 1. Direct testimony. Where knowledge is material, a person may testify directly as to whether or not he had knowledge,^ but not (unless an ex- pert)^ as to whether another person had knowledge; ' nor can the witness be asked whether he gave another person to under- stand that a fact existed.* 1 Frost V. Rosecrans, 66 Iowa, 405, 23 N. W. 895 (action to set aside deed in fraud of creditors. Error to exclude question put to alleged purchaser for value) ; Turner v. Keller, 66 N. Y. 66 (on the question of knowl- edge of want of authority, it is competent to ask whether at the time of the transaction the witness supposed the alleged agent had authority), s. p., Dutchess County Mut. Ins. Co. v. Hachfield, 73 N. Y. 226 (witness may testify whether he believed an explanation). 2 Beckwith v. New York C. R. Co. 64 Barb. 299 ; Macer v. Third Ave. R. Co. 15 Jones & S. 461 (question allowed whether the sufferer was aware that the witness was watching his movements) ; Western & A. R. Co. V. Stafford, 99 Ga. 187, 25 S. E. 656. 3 Major V. Spies, 66 Barb. 576 (defendant not allowed to testify in his ovni behalf that plaintiff, suing for value of services, knew defendant had nothing to do with the work) ; Wallis v. Randall, 81 N. Y. 164, 648 BRIEF ON FACTS. 170 {dictum; where knowledge is only incidentally in question it i» usual to allow a question as to anotlier person having knowledge, subject to cross-examination as to the witness's means of informa- tion) ; Bailey v. State, 107 Ala. 151, 18 So. 234 (prosecution for assault with intent to kill; error to allow witness to testify that defendant knew, at the time of the, affray, that the person assaulted had been to obtain a warrant for his arrest) ; McCosker v. Banks,. 84 Md. 292, 35 Atl. 935 (to the effect that a partner cannot testify that his copartner was ignorant of a, particular fact; but each part- ner must show his want of knowledge by his own testimony, or that other facts must be shown from which want of knowledge may legiti- mately be inferred ) . *Blaut V. Gabler, 77 N. Y. 461 (not error to exclude such question, even when put to an alleged fraudulent assignor, as bearing on the question whether the assignee had notice of intent to defraud creditors). 2. Probability of knowledge. An expert may be asked whether, if a fact existed, a person under given circumstances would be likely to know it, if the question requires special knowledge or experience, so that the jury could not make inference for themselves.* Otherwise not.* 1 Perkins v. Augusta Ins. Co. 10 Gray, 312, 71 Am. Dec. 654 (not error to refuse to allow expert to be asked if master of vessel would know if his mast was sprung, his sails split, etc.) ; Odell v. Solomon, 23 Jones & S. 410 (expert not allowed to testify as to a man being able to tell from exterior appearances that a sash was going to fall down) ; Jupitz v. People, 34 111. 516, 521 (indictment for receiving stolen goods. On question of knowledge of value, machinists and. brass finishers are competent to state that from common observation, and without close inspection, it could not be told whether certain brass couplings were perfect or imperfect, and useful or only old brass) ; Cook v. Castner, 9 Cush. 266 (whether decay could have been discovered on removal of covering) ; Treadwell v. Whittier, 80 Cal. 574, 5 L.R.A. 498, 22 Pac. 266 (that skilled mechanics who had re- paired an elevator, and who cautioned the operator as to the careless mode in which he ran it, may testify to the operator's knowledge that he was running it carelessly). a Gilbert v. Guild, 344 Mass. 601, 12 N. E. 368 (question whether the danger of manipulating a cutting machine would be obvious to one operating it) ; Scroggin v. Wood, 87 Iowa, 497, 54 N. W. 437 (that purchaser of stallion cannot testify that seller must have known of its unsoundness because he could not liave owned and handled it with- out such knowledge). KNOWLEDGE. 649 3. Circumstantial evidence. The fact of knowledge may be established by circumstantial evidence/ even where it is necessary to show actual knowledge ; ' and for this purpose evidence of previous transactions is com- petent.* iCiabb V. state, 88 Ga. 584, 15 S. E. 455; Knight v. State, 88 Ga. 589, 15 S. E. 456; Lynch v. Richardson, 163 Mass. 160, 39 N. E. 801; Van Eaalte v. Harrington, 101 Mo. 602, 11 L.R.A. 424, 14 S. W. 710. 2 Parker v. Conner, 93 N. Y. 118, 124, 45 Am. Eep. 178 {dictum) ; Rine v. Chicago & A. R. Co. 100 Mo. 228, 12 S. W. 640 ; Speer v. Burlingame, 61 Mo. App. 75; Stainback v. Junk Bros. Lumber & Mfg. Co. 98 Tenn. 306, 39 S. W. 530. 3 For numerous illustrations, see Criminal Trial Brief; Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314, reversing 4 Lans. 17; Cowley V. People, 8 Abb. N. C. 1, 2, note, afBrmed in 83 N. Y. 464, 38 Am. Rep. 464, with note; Douglass v. Ireland, 73 N. Y. 100 (knowledge and guilty action of trustees illegally issuing stock of a company for the purchase of property ) . The same class of evidence is admissible in favor of the party to be charged with knowledge. People v. Dowling, 84 N. Y. 478 (held, error to refuse to allow the prisoner to prove what was said as to mode of obtaining property by the persons from whom he was alleged to have made the purchase. Also, error, after the prosecution had proved the finding of other goods in the prisoner's house, and had introduced evidence to show that they were received with guilty knowledge, to refuse to allow him to testify that he had purchased those goods, and had asked persons from whom he bought them to go and look at them ) . Knowledge of insanity of one contracting party, by the other, can be proved by prior and subsequent conduct tending to show such insanity. Beavan v. M'Donnell, 23 L. J. Exch. N. S. 326. Here the evidence ad- mitted was of acts prior to making of contract, and partly prior to any acquaintance between the parties, as well as subsequent acts. Held, proper on ground "that if party was insane either just before or just after the making of the contract, it raises an inference that the defendant must have known it." Where the object is to prove that a person responsible for the acts of an- other knew the latter's incapacity, proof of knowledge of prior acts of the latter showing incapacity is admissible. Baulec v. New York & H. R. Co. 59 N. Y. 356, 17 Am. Rep. 325 (laying down the rule as above, and holding that it did not cover that case, whereby one prior act of negligence was proved, and no evidence of knowledge of it by defendant was given) . Compare Frazier v. Pennsylvania R. Co. 38 Pa. 104, 80 Am. Dec. 467. 650 BEIEF ON FACTS. 4. Possession. Evidence that articles were found in a person's room is suf- iicient to go to the jury, to sustain an inference that they were there with his knowledge.* 1 Ruloff's Case, 11 Abb. Pr. N. S. 245, less fully as Ruloff v. People, 45 N. Y. 213. 5. Presumptions and burden of proof. a. Common fact. — Knowledge is presumed of facts gen- erally understood by persons of mature years, and of ordinary intelligence.* iLanigan v. New York Gaslight Co. 71 N. Y. 29 (explosive quality of il- luminating gas ) . But passengers are not presumed, as matter of law, to know that the proper places to alight from street cars are at the further crossings of street intersections. West Chicago Street R. Co. v. Manning, 170 111. 417, 48 N. E. 958. As to innocent third parties, a person is presumed to have known what he should know or has an opportunity of knowing. Johnson v. Levy, 109 La. 1036, 34 So. 68. h. Knowledge of corporation or its officers. — A corporation is chargeable with knowledge of matters appearing upon its record, notwithstanding changes in the individuals composing the body.* Directors and oiEcers are presumed to have known what they ought by proper diligence to have known.^ 1 Albany City Nat. Bank v. Albany, 92 N. Y. 363. s. P., McAlpine v. Union P. R. Co. 23 Fed. 168 (holding corporate record of a contract notice to consolidated corporation subsequently formed) ; Gerner v. Mosher, 58 Neb. 135, 46 L.R.A. 244, 78 N. W. 384. That a corporation has knowledge of the fact that intoxicating liquor is sold by a firm of which its secretary and sole business manager is an active member may be inferred by a jury. Chippewa Lumber Co. v. Tremper, 75 Mich. 36, 4 L.R.A. 373, 13 Am. St. Rep. 420, 42 N. W. 532. Officers of an electric railway company are supposed to know the habitual methods of their servants in managing their cars. Sweetland T. Lynn & B. R. Co. 177 Mass. 574, 51 L.R.A. 783, 59 N. E. 443. 2 Martin v. Webb, 110 U. S. 7, 28 L. ed. 49, 3 Sup. Ct. Rep. 428. KNOWLEDGE. 651 Officers of a bank will be presumed to have had knowledge of its in- solvent condition at the time of certain payments to them, attacked as unlawful preferences, where the bank had been insolvent for many years, and became hopelessly insolvent the day following the payments. James Clark Co. v. Colton, 91 Md. 195, 49 L.R.A. 698, 46 Atl. 386. c. Of one dealing with corporation. — A person dealing with a corporation is bound to know the purpose for which it exists ; and when he deals with its agents or officers to know their pow- ers, and the extent of their authority.* 1 Alexander v. Cauldwell, 83 N. Y. 480, 485. See also Abbott, Tr. Ev. 32, 40. As to whether he may be presumed to know its regulations, see 2 Shearm. & Redf. Neg. § 549, p. 400. d. Knowledge of principal. — A person is conclusively pre- sumed to have had notice, actual or constructive, of all the doings of his agent within the actual or apparent scope of the agency.* But an agent has the burden of proving his principal's knowl- edge and acquiescence in a purchase by himself of the subject- matter of his agency.^ 1 Andrews v. Robertson, 111 Wis. 334, 54 L.R.A. 673, 87 Am. St. Rep. 870, 87 N. W. 190. 2 Jansen v. Williams, 36 Neb. 869, 20 L.R.A. 207, 55 N. W. 279. e. Knowledge of servant. — To establish contributory negli- gence of a servant, the burden of proof as to his knowledge of latent danger is on the master.* And one employed in making enamel, which requires the drawing of the molten enamel from the melting pot into water, is not presumed, as matter of law, to have the scientific knowledge that the use of too small a quantity of water will be likely to result in an explosion.^ 1 Myhan v. Louisiana Electric Light & P. Co. 41 La. Ann. 964, 7 L.R.A. 172, 17 Am. St. Rep. 436, 6 So. 799. « Adams v. Grand Rapids Refrigerator Co. 160 Mich. 590, 27 L.R.A. (N.S.) 953, 136 Am. St. Rep. 454, 125 N. W. 724, 19 Ann. Cas. 1152. /. Knowledge of contents presumed from signing or recelv- 652 BRIEF ON FACTS. ing. — Proof that one signed an instrument is sufficient evidence that he was acquainted with its contents.* So is proof that he accepted an instrument delivered to him as affecting his inter- ests.* This is a presumption of law which, in the absence of other evidence, concludes the question. 1 Harris v. Story, 2 E. D. Smith, 363 (signature by mark) ; Ee Cooper, L. R. 20 Ch. Div. 611, 629 (where a son, who had same initials as his father, had signed a deed mortgaging land belonging to his father, and so described in deed, — held, that he had done so knowingly and with intent to personate his father) ; Guardhouse v. Blackburn, L. E. 1 Prob. & Div. 109 (holding, in case of a will, that the presump- tion is conclusive if it is also shown that the will has been read over to a competent testator, although the solicitor who drew the will swore that the words had been inserted without instructions and by his inadvertence. Eule is criticised in Taylor, Ev. 1886 ed. 179); Parsons v. Boyd, 20 Ala. 112 (attorney charged with notice of a title to real property set out in a plea signed by his firm). A party who applied for insurance is presumed to have read the applica- tion which he signed, and to know the limitations therein expressed. New York L. Ins. Co. v. Fletcher, 117 U. S. 519, 29 L. ed. 934, 6 Sup. Ct. Eep. 837. Such presumption may be rebutted by proving forgery, or that the will was falsely read over to the party signing it. Doran v. Mullen, 78 111. 342 (affirming judgment admitting will to probate in the absence of such evidence ) . And also by suspicious circumstances, such as, in the case of a will, that the instrument was drawn by a party interested in it. Lake v. Ean- ney, 33 Barb. 50, 68. In such a case there must be some affirmative evidence that the testator "knew the contents of the will, and that it expressed his real intention." Paine v. Hall, 18 Ves. Jr. 475. But the presumption cannot be rebutted by pleading, without alleging fraud, that the instrument was not read by the party signing it, nor by showing that untrue representations as to its legal effect were made. Linington v. Strong, 111 111. 152 (charge to jury that party not ex- cused to sign without reading, unless induced by wilfully false rep- resentations, held proper) ; Hazard v. Griswold, 21 Fed. 178 (demur- rer to a plea that the writing on which suit was brought was a bail bond, sustained); McKinney v. Herrick, 66 Iowa, 414, 23 N. W. 767 (allegation in answer, that instrument was not read by defendant, held demurrable). 8 Thus, a shipper is presumed to know and assent to the terms of an ex- press company's receipt which is given for goods, — especially where those terms are made prominent and noticeable, and a book of such KNOWLEDGE. 653 blank receipts is in his own possession. Ballou v. Earle, 17 E. I. 441, 14 L.R.A. 433, 22 Atl. 1113. And a shipper who, for a number of years, has had possession of shipping receipts, which he filled out himself when he desired to make a ship- ment, will be charged with knowledge of a provision therein fixing the valuation of packages for purposes of shipment, in the absence of any evidence that he was not acquainted with the contents of the receipts. Greenwald v. Barrett, 199 N. Y. 170, 35 L.R.A. (N.S.) 971, 92 N. E. 218. It will be presumed that a lessee knew of entries made in his passbook by the lessor, indicating what the rent was, where the book was returned to him, and he had possession thereof. Heipley v. Green, 7 Ohio Dec. 497. g. Knowledge of contents presumed from access or from claim-. — The mere fact of having an interest in a document and having had access to it, although it generally avails to make the instrument competent against the party vs^ithout further evi- dence to bring it home to him,' does not alone avail to raise a presumption of his having knowledge at any particular time of matters stated therein.^ But if he had an interest and some authority, in reference to the making of the instrument, or entries therein, and neglected to inform himself when he should have done so, he may be charged with knowledge.* If his claim in the action depends on the instrument, and the instrument is produced from his possession, there is a legal pre- sumption that he was acquainted with its contents,* which, how- ever, is not conclusive in the absence of anything to raise an es- toppel. 1 Thus, the rules of a club are competent against a member without further evidence of his knowledge of them ; for a member of a club is presumed to know its rules. Raggett v. Musgrave, 2 Car. & P. 556. So, Lloyd's lists were competent against an underwriter who had access to them, for he is presumed to know their contents. Mackintosh v. Marshall, 11 Mees. & W. 116. s. p., next section, note 1. It will be presumed, in the absence of proof to the contrary, that an em- ployee had knowledge of the rules and regulations adopted by his em- ployer for the government of its employees. Galveston, H. & S. A. R. Co. V. Gormley, 91 Tex. 393, 43 S. W. 877, reversing — Tex. Civ. App. — , 42 S. W. 314; Helton v. Alabama Midland R. Co. 97 Ala. 275, 12 So. 276. 654 BEIEF ON 5'ACTS. A cashier who is a stockholder of a national bank will be presumed to have kept a list of the shareholders, and to have known its contents. Finn v. Brown, 142 U. S. 56, 35 L. ed. 938, 12 Sup. Ct. Rep. 136. Each partner will be presumed to know of a, transaction outside the scope of the partnership business, entered on the books of the partnership, after the lapse of a reasonable time from its entrance therein. Sparks V. Flannery, 104 Ga. 323, 30 S. E. 823. That an employee has access to his employer's books, and has been seen looking over them, raises no presumption that he has seen certain items charged against him. Cheney v. Cheney, 162 Mass. 591, 39 N. E. 187. 2 This seems to be the principle underlying Mackintosh v. Marshall, 11 Mees. & W. 116, where it was held error not to charge that the pre- sumption that the underwriter knew the contents of an entry in Lloyd's list before taking a risk was rebutted by evidence that the risk was one he would not have taken had he known the entry. 3 Brisbane v. Brisbane (N. Y. ) 11 Rep. 587 (cotenant, who settled by the accounts kept by a common agent to which he had access, precluded from showing his ignorance of facts). 4 Mead v. Parker, 29 Hun, 62, and cases cited. Compare Danby v. Coutts, 33 Week. Rep. 559 (recital in power of attor- ney). See also Smith v. Burgess, 133 Mass. 511 (where the word "trustee" in a mortgage, though canceled, was held notice to assignee, although there was no corresponding word in the note to which the mortgage was collateral) . h. Newspaper contents. — The fact that one was a subscriber for, and took, a newspaper, does not charge him with knowledge of information,' or advertisements,^ contained therein. But one who sells and delivers a paper containing a libel is pre- sumed to know that it contained the libel, in the absence of proof to the contrary.* 1 Milbank v. Dennistoun, 10 Bosw. 382 (an action against factors for sell- ing below price without waiting for a rise). In Abel v. Potts, 3 Esp. 242, it was held that Lloyd's books coupled with evidence that the person subscribed to Lloyd's and daily examined the books, may go to jury, as evidence of notice to him of a fact there stated. 2 Watkinson v. Bank of Pennsylvania, 4 Whart. 482, 34 Am. Dec. 521; Ver- non V. Manhattan Co. 17 Wend. 524, affirmed in 22 Wend. 183. 3 Street v. Johnson, 80 Wis. 455, 14 L.R.A. 203, 27 Am. St. Rep. 42, 50 N. W. 395. KNOWLEDGE. 655, i. Knowledge of law. — (1) In general. — A person is pre- STimed to know the existence of a state statute.^ And stock- holders of a corporation who are residents of the state in which the company is authorized to do business are presumed to know its laws.^ But a quarantine order prohibiting a person from going upon the street is not like a general law, of which he will be presumed to have knowledge.* The presumption of knowledge of law does not preclude a party from proving that the adverse party deceived him by mis- representing the law.* 1 Saxton V. Perry, 47 Colo. 263, 107 Pac. 281. 2 Keystone Driller Co. v. Superior Ct. 138 Cal. 738, 72 Pac. 398. 3 State V. Butts, 3 S. D. 577, 19 L.R.A. 725, 54 N. W. 603. 4 0'NeiI V. Lake Superior Iron Co. 63 Mich. 690, 35 N. W. 162; Allen V. Allen, 95 Cal. 184, 16 L.R.A. 646, 27 Pac. 30; Sloniger v. Sloniger, 161 III. 270, 43 N. E. 1111 (extending the rule to knowledge that marriage revokes a will ) . (2) Of foreign law. — The rule that all persons are presumed to know the law does not apply to charge citizens and residents of another state, acting there, with knowledge of the law of this state,' nor citizens and residents of this state, acting here, with the knowledge of the law of another state ; ^ except where they claim under an instrument the existence of which depended on authority given by the law in question.* 1 Merchants' Bank v. Spalding, 9 N. Y. 53, affirming 12 Barb. 302 (contract of bankers, etc., of another state, contravening banking law of this state) ; Honegger v. Wettstein, 13 Abb. N. C. 393, 399 (foreigners not chargeable with knowledge of our revenue law ) . 2 Stedman v. Davis, 93 N. Y. 32 (reversing a decision that judgment cred- itors of a foreign debtor, who had made an assignment invalid under the foreign law, having accepted benefits under it, must be considered as having elected to treat it as valid, although there was no evidence that they had any knowledge of the foreign law). 5 Knowledge of the powers contained in the charter of a corporation ex- isting in another state must be imputed to a citizen of New York pur- chasing property the title to which is derived from a conveyance or as- signment made by such corporation. Wait, Insolvent Corp. 271. s. p., Morgan v. United States, 113 U. S. 476, 28 L. ed. 1044, 5 Sup. Ct. Rep. 588 (holding that a holder of government bonds is presumed to know 656 BRIEF ON FACTS. whatever haa lawfully been done or declared by the government re- specting them ) . Parties in contract will be presumed to know the law of the state in which such contract was made, and in which it was to be performed, and to have contracted with reference thereto. Sigua Iron Co. v. Brown, 19 App. Div. 143, 45 N. Y. Supp. 989. And a nonresident of a state is presumed to know the law of that state so as to charge him with the duty of complying with its statutes in order to prevent the bar of a claim against an estate. Cory Bros. v. Gillespie, 94 Iowa, 347, 62 N. W. 837. 6. General reputation. On the question whether a person had knowledge of a fact, general reputation of the fact, or of the contrary, is competent.^ 1 State V. Flint, 60 Vt. 304, 14 Atl. 178 (evidence of the notoriety of a crime is admissible as tending to show defendant's knowledge of it at a time when he claims that he had not heard of it) ; Hahn v. Penney, 62 Minn. 116, 63 N. W. 843 (knowledge of insolvency) ; Park V. New York C. & H. E. R. Co. 155 N. Y. 215, 49 N. E. 674 (knowl- edge of incompetency of servant) ; Carter v. Steyer, 93 Iowa, 533, 61 N. W. 956 (knowledge of character of premises by owner), s. p., Reilly V. Hannibal & St. J. R. Co. 94 Mo. 600, 7 S. W. 407; Pressler v. State, 13 Tex. App. 95 (general report circulated by a young man that he had attained majority competent, as corroborating defendant's denial of knowledge that he was a minor ) . See also Insolvency, § 4, and Ab- bott, Tr. Ev. 2d ed. 739 ( master's knowledge of unfitness of servant ) . Contra: Greenslade v. Dare, 20 Beav. 284 (holding that evidence inad- missible to prove the fact itself, is inadmissible to prove knowledge of such fact). LETTEBS. 657 LEAVE TO SUE. As to orders of court generally, see Oedeb op Coubt, Heceiver. To prove the authority of a receiver of a corporation to sue, it is suiRcient to produce the petition, the order appointing him receiver, and his oiEcial bond.^ 1 Palmer v. Clark, 4 Abb. N. C. 25. In Hauselt v. Fine, 18 Abb. N. C. 149, will be found a note on leave to sue. Leave may be granted nunc pro titnc, even after the commencement of the action, and the action is a common-law action. As to the form of application and order, see 1 Abbott, New Pr. & F. 544, 559, etc. LETTERS. 1. Offering part of connected correspondence. 2. Proof of authorship. 3. Delivery; mailing. 4. Letter and inclosure let in each other. 5. Letters of an agent. 6. Mere possession. 7. Omission to answer. Por kindred topics, see Admissions; Mails; Notice. 1. Offering part of connected correspondence. A party may put in evidence a letter containing admissions material to the case, without putting in the whole correspond- Abb. Facts — 42. 658 BRIEF ON FACTS. ence ; ^ subject to the right of his adversary to put in the residue of the correspondence.^ 1 Barrymore v. Taylor, 1 Esp. 326; Stone v. Sanborn, 104 Maas. 319; Dix V. Jackman, — Tex. Civ. App. — , 37 S. W. 344; Abbott, Tr. Ev. 2d ed. 854. Contra: Simmons v. Haas, 56 Md. 153. And tliat a party is not entitled to put in evidence his own letter against the adverse party, if it purports to have been written in answer to one from the adverse party, unless he offers at the same time to prove or account for the one from the adverse party. Belmont Coal Co. v. Eichter, 31 W. Va. 858, 8 S. E. 609; Citing Watson v. Moore, 1 Car. & K. 626; Brisban v. Boyd, 4 Paige, 17; Springer v. Orr, 82 111. App. 558. And according to Denipsey v. Dobson, 174 Pa. 122, 32 L.R.A. 761, 34 Atl. 459, a letter containing an argumentative presentation of the writer's views of his rights, and of the grievances of which he complains, be- ing a declaration in his own behalf, cannot be received in his own favor when unanswered. And the rule stated in the text was held in Slingloff v. Bruner, 174 111. 561, 51 N. E. 772, to apply to parts of a letter. But in Anderson v. Anderson, 13 Tex. Civ. App. 527, 36 S. W. 816, a fragment of a lost letter was held to have been properly excluded where its meaning and weight could not be ascertained from such fragment alone, and there was no offer to prove the entire contents. 2 Morgan v. Farrel, 58 Conn. 413, 20 Atl. 614; Lindheim v. Duys, 11 Misc. 16, 31 N. Y. Supp. 870; Lewis v. Newcombe, 1 App. Div. 59, 37 N. Y. Supp. 8; Diether y. Ferguson Lumber Co. 9 Ind. App. 173, 35 N. E. 843, 36 N. E. 765; Graves v. Merchants' & B. Ins. Co. 82 Iowa, 637, 49 N. W. 65; Thayer v. Hoflfman, 53 Kan. 723, 37 Pae. 125; Gage v. Meyers, 59 Mich. 300, 26 ¥. W. 522. And that the remainder of a letter, a portion of which has been received, may be put in within this rule, see Slingloff v. Bruner, 174 111. 561, 51 N. E. 776; Glover v. Stevenson, 126 Ind. 532, 26 N. E. 486; New York, T. & M. K. Co. v. Gallaher, 79 Tex. 685, 15 S. W. 694. A portion of » letter between the parties to an action, though not relating to the same subject as the portion introduced by the adverse party, may be put in by the writer when of a nature to elicit a reply, and when none was made. Fleischman v. Toplitz, 134 N. Y. 349, 31 N. E. 1089. But one who, without objection, permits a portion of a letter to be read by his adversary, has no right against objection to have another por- tion of the same letter read while refusing to have the entire letter read. Corbett v. State, 5 Ohio C. C. 155, 3 Ohio C. D. 79; Lewis Pub. Co. V. Lenz, 86 App. Div. 451, 83 N. Y. Supp. 841. 2. Proof of authorship. A. letter is not made admissible against the apparent writer I/ETTEES. 659 by evidence that it was received in due course purporting to have been mailed at the place of his residence, without proof that he either wrote or authorized it.^ But it is made admissible by evi- dence that it was so received in answer to a letter previously sent to him.^ The courts will not presume that some stranger, surreptitiously or otherwise, got possession of the original letter and answered it,' but will presume that such answer is the letter of the one whose name is signed to it,* and will admit it in evi- dence without proof that it is in the handwriting of the party purporting to have sent it.° And such a letter will be admitted even though typewritten * and bearing a typewritten signature.' 1 Nichols V. Kingdom Iron Ore Co. 56 N. Y. 618; State v. ToUiver, 47 La. Ann. 1099, 17 So. 502. A stipulation that a letter favorable to adverse party may be read upon condition that a deposition favorable to the stipulating party, but which was objectionable on account of certain irregularities, should also go in evidence, is not an admission that the letter is genuine, but merely dispenses with proof of its genuinenes'S in the first instance. Osmun V. Winters, 30 Or. 177, 46 Pac. 780. Letters without date or signature, shown to have been in defendant's hand- writing, and bearing evidence within themselves and by comparison with other letters actually received that they were intended for the person in whose room they were found, were held admissible in evi- dence against defendant, without proof that they were actually re- ceived. State V. Overstreet, 43 Kan. 299, 23 Pac. 572. The writer's execution of the letters must be shown before they can be admitted in evidence. Ex parte Denning, 50 Tex. Crim. Eep. 629, 100 S. W. 401. 8 United States v. Duff, 19 Blatchf. 9, 6 Fed. 45 (criminal case); Camp- bell V. Woodstock Iron Co. 83 Ala. 351, 3 So. 369; Bush v. Miller, 13 Barb. 481; Melby v. D. M. Osborne & Co. 33 Minn. 492, 24 N. W. 253; People's Nat. Bank v. Geisthardt, 55 Neb. 232, 75 N. W. 582; Patrick v. Badger, — Tex. Civ. App. — , 41 S. W. 538; UUman v. Babcock, 63 Tex. 68. 8 Chicago, B. & Q. K. Co. v. Roberts, 10 Colo. App. 87, 49 Pac. 428. 4Scofield V. Parlin & 0. Co. 10 C. C. A. 83, 18 U. S. App. 692, 61 Fed. 804; Ragan v. Smith, 103 Ga. 556, 29 S. E. 759; Melby v. D. M. Os- borne & Co. 33 Minn. 492, 24 N. W. 253 ; Leesville Mfg. Co. v. Morgan Wood & Iron Works, 75 S. C. 342, 55 S. E. 768. B White V. Tolliver, 110 Ala. 300, 20 So. 97 ; Atlantic Ins. Co. v. Manning, 3 Colo. 224; Boykin v. State, 40 Fla. 484, 24 So. 141; Grayville Water- works V. Burdick, 109 111. App. 520; Lyon v. Railway Pass. Assur. Co. 46 Iowa, 631; City Nat. Bank v. Jordan, 139 Iowa, 499, 117 N. W. 660 BRIEF ON FACTS. 758; Connecticut v. Bradish, 14 Mass. 296; J. H. Sanders Pub. Co. v. Emerson, 64 Mo. App. 662 ; Hays v. General Assembly American Benev. Asso. 127 Mo. App. 195, 104 S. W. 1141; People's Nat. Bank v. Geisthardt, 55 Neb. 232, 75 N. W. 582; Peycke v. Shinn, 76 Neb. 364, 107 N. W. 386 ; Armstrong v. Advance Thresher Co. 5 S. D. 12, 57 N. W. 1131; Lewis v. Alexander, — Tex. Civ. App. — , 31 S. W. 414; Loverin & B. Co. v. Bumgarner, 59 W. Va. 46, 52 S. E. lOOO; Ovenston V. Wilson, 2 Car. & K. 1. 6 Davis's Sons v. Robinson, 67 Iowa, 355, 25 N. W. 280; Norwegian Plow Co. V. Munger, 52 Kan. 371, 35 Pac. 11. 7Huber Mfg. Co. v. Claudel, 71 Kan. 441, 80 Pac. 960; Lancaster v. Ames, 103 Me. 87, 17 L.R.A.(N.S.) 229, 125 Am. St. Eep. 286, 68 Atl. 533. 3. Delivery; mailing. Evidence that letter other than notice of protest * was duly mailed postpaid, by deposit either in the postoffice, a government letter box, or the hand of the official letter carrier on his round ; or by deposit where in due course of business it should have been mailed or received ; with evidence of such course of business, — is competent to go to the jury, and will sustain a finding of act- ual receipt, but does not raise a legal presumption thereof.^ A letter received in due course of mail, in response to one sent by the receiver, is presumed, in the absence of any showing to the contrary, to be the letter of the person whose name is signed to it.' The date of a letter is no evidence of the time of its receipt.* 1 Evidence that notice of protest was so duly mailed, and addressed to an- other town, is conclusive evidence of its receipt. Wymen v. Schappert, 6 Daly, 558; Pearce v. Langfit, 101 Pa. 507, 47 Am. Rep. 737 (handed to official letter carrier on his round). Compare Jensen v. McCorkell, 154 Pa. 323, 26 Atl. 366 (that it creates a strong and nearly conclusive, presumption of receipt). See also Abbott, Tr. Ev. 2d ed. 531 et seq. 2 Rosenthal v. Walker, 111 U. S. 185, 28 L. ed. 395, 4 Sup. Ct. Rep. 382 ( holding this presumption sufficient to let in letter-press copies ) ; Austin V. Holland, 69 N. Y. 571, 25 Am. Rep. 246, with note; Howard V. Daly, 61 N. Y. 362, 19 Am. Eep. 285 (deposit in private letter box) ; United States v. Babcock, 3 Dill. 566, Fed. Cas. No. 14,484; Sullivan V. Kuykendall, 82 Ky. 483, 56 Am. Rep. 901. See also Abbott, Tr. Ev. 2d ed. 353 et seq. Whether this rule applies to letters sent to public officers, see — Affirmative: Michigan Land & Iron Co. v. Republic Twp. 65 Mich. 628, 32 N. W. 88;. LETTERS. 661 Negative: Hammatt v. Emerson, 27 Me. 308, 46 Am. Dec. 598 {dictum) ; Sehutz v. Jordan, 32 Fed. 55; Abbott, Tr. Ev. 196. Records of the postofEce, competent between third persons, because kept by a sworn officer. Merriam v. Mitchell, 13 Me. 439, 29 Am. Dec. 514. That this presumption does not suffice under a statute requiring notice to be given. Franklin Sav. Bank v. Fatzinger, 8 Sadler (Pa.) 21, with note. SRagan v. Smith, 103 Ga. 556, 29 S. E. 769, and cases cited; Scofield v. Parlin & 0. Co. 10 C. C. A. 83, 18 U. S. App. 692, 61 Fed. 804. And letters written from the home office of an insurance company, upon paper with its letter-head thereon, purporting to be signed by officers of the company, in answer to letters addressed to the company by plain- tiff in regard to his loss, will be presumed to have been answered by the proper officers. Bloom v. State Ins. Co. 94 Iowa, 359, 62 N. W. 810. 4 Uhlman v. Arnholdt & S. Brewing Co. 53 Fed. 485 4. Letter and inclosure let in each other. When a document is properly in evidence, the envelope in which it was delivered, and any other relevant document which accompanied it and was delivered in the envelope, is competent as part of the res gestae, not as proof of statements in it, but to show under what cover its contents reached the party.^ 1 United States v. Noelke, 17 Blatchf. 554, 1 Fed. 426 (criminal case); Darling v. Miller, 54 Barb. 149; Foster v. Newbrough, 66 Barb. 645, reversed on another ground in 58 N. Y. 481. 5. Letters of an agent. Letters of an agent through whom business was transacted may be received as part of the res gestw} 1 Beaver v. Taylor, 1 Wall. 637, 17 L. ed. 601; Rosenstock v. Tormey, 32 Md. 169, 3 Am. Rep. 125 ; Richmond Union Pass. R. Co. v. New York & S. B. R. Co. 95 Va. 386, 28 >S. E. 573. 6. Mere possession. Mere possession of letters addressed to one does not render them competent against him.* iWillett V. People, 27 Hun, 469 (homicide. The court says: "Such let- ters are the declarations of third parties, and, as hearsay, are not evi- 662 BEIEF ON FACTS. dence of any facts." AflSrmed without noticing this point in 92 N. Y. 29). After letters received into the possession of the party have been put in evidence against him as received in answer to his letters or arvertise- ments, others of like character, though intercepted, may be received. Reg. V. Cooper, L. R. 1 Q. B. Div. 19. A large number of letters alleged to have called forth letters, copies of which in a testator's letter book have been admitted on the question of his mental capacity, should not be laid in a mass before the jury un- read, for them to examine or not as they should feel inclined; but absence of proof of authenticity, that they were received in due course of mail, or of any offer to produce their authors for examination, is not ground for rejecting them if they were found among testator's papers with his memoranda on them. Barber's Appeal, 63 Conn. 393, 22 L.R.A. 90, 27 Atl. 973. An unsigned, undated letter found after her death among the papers of a testatrix, and purporting to have been written by her to the father of the principal devisee, is inadmissible in the contest of a will. Mur- phree v. Senn, 107 Ala. 424, 18 So. 264. 7. Omission to answer. Omission to answer a letter is not an admission of the truth of statements contained in it.* 1 Learned v. Tillotson, 97 N. Y. 1, 49 Am. Rep. 508 ; State, Hand, Prosecu- tor, V. Howell, 61 N. J. L. 142, 38 Atl. 748, and cases cited. But compare Account Stated; Ratification. But a letter unanswered may be made competent against the recipient by evidence of his subsequent conversations about it. Dutton v. Wood- man, 9 Cush. 255, 57 Am. Dec. 46, with note. But not necessarily by his silence when it was spoken of in his presence. Wright v. People, 1 N. Y. Crim. Rep. 462. MAILS. 663 LOST RECORD. Mode of proving — copies. Where an original pleading or paper is lost, the court may au- thorize a copy to be filed and used instead of the original.^ 1 N. Y. Code Civ. Proe. § 726. See also, for cases illustrating the practice, note to Goldman v. Kennedy, 21 Abb. N. C. 367. And see Belford, C. & Co. V. Scribner, 144 U. S. 488, 36 L. ed. 514, 12 Sup. Ct. Kep. 734; Romero v. Wagner, 3 N. M. 167, 3 Pac. 50. MAILS. 1. Judicial notice. 2. Deposit. 3. Presumption. 4. Weight, effect, and sufficiency. 5. Best evidence. For kindred topics, see Lettbbs; Notice. 1. Judicial notice. The court may,' but is not bound to,^ take judicial notice of the' time taken by the mails between principal cities. iPearce v. Langfit, 101 Pa. 507, 47 Am. Rep. 737; abstr. s. o. 27 Alb. L. J. 143. 2 Wiggins V. Burkham, 10 Wall. 129, 19 L. ed. 884. H. Deposit. Dropping in a street letter box, or delivery to the official carrier while he is collecting is mailing.* 664 BEIEF ON H-ACTS. The postmark on an envelope is presumptive evidence of the mailing of the envelope so marked with its inclosure at the time and place designated in such mark.* 1 Pearce v. Langfit, 101 Pa. 507, 47 Am. Pep. 737. 2 United States v. Politzer, 59 Fed. 273. 3. Presumption. A letter properly deposited in the United States mail will he presumed to have reached its destination, and to have been re- ceived by the addressee in due course.^ But such presumption may be rebutted by evidence.^ 1 Lindenberger v. Beall, 6 Wheat. 104, 5 L. ed. 216 ; Rosenthal v. Walker, 111 U. S. 185, 28 L. ed. 395, 4 Sup. Ct. Rep. 382 ; De Jarnette v. Mc- Daniel, 93 Ala. 215, 9 So. 570; Stockton Combined Harvester & Agri. Works V. Houser, 109 Cal. 1, 41 Pac. 809; Bankers' Mut. Casualty Co. V. People's Bank, 127 Ga. 326, 56 S. E. 429; Young v. Clapp, 147 111. 176, 32 N. E. 187, 35 N. E. 372; Consolidated Coal Co. v. Block & H. Smelting Co. 53 111. App. 565; Phenix Ins. Co. v. Pickel, 3 Ind. App. 332, 29 N. E. 432; Pennypacker v. Capital Ins. Co. 80 Iowa, 56, S L.R.A. 236, 45 N. W. 408; Shields v. Lewis, 20 Ky. L. Rep. 1601, 49 S. W. 803; Long-Bell Lumber Co. v. Nyman, 145 Mich. 477, 116 Am. St. Rep. 310, 108 N. W. 1019; Benedict v. Grand Lodge A. 0. U. W. 48 Minn. 471, 51 N. W. 371; Bachman v. Brown, 56 Mo. App. 306; Van Doren v. Liebman, 34 N. Y. S. R. 752, 11 N. Y. Supp. 769; Jensen V. McCorkell, 154 Pa. 323, 26 Atl. 366. The presumption is that the letter was received by the addressee, if living Sabre v. Smith, 62 N. H. 663. It will be presumed that a notice of assessment mailed to an insured at the place where he resided and usually received his letters was re- ceived in due course of mail, — especially where such notice was found among his papers at his death. Pitts v. Hartford Life & Annuity Ins. Co. 66 Conn. 376, 34 Atl. 95. Presumption does not apply unless the addressee resides in the place to which the letter is addressed. Henderson v. Carbondale Coal & Coke Co. 140 U. S. 25, 35 L. ed. 332, 11 Sup. Ct. Rep. 691. But if the person has changed his place of business, and informed the post- oiBce authorities of it, there is a presumption that the letter has been delivered at the new address. Marston v. Bigelow, 150 Mass. 45, 5 L.R.A. 43, 22 N. E. 71. The deposit of a letter in the postoflSce is not prima facie evidence that the person to whom it is addressed receives it unless the postage is shown to be prepaid. Welsh v. Chicago Guaranty Fund Life Soc. 81 Mo. App. 30. MAILS. 665 One who brings an action against the indorser of a note, and relies on the mailing of a notice of protest, must show that the letter inclosing the letter of protest was a prepaid letter in that it was properly stamped for transmission and delivery. Farmers' Nat. Bank v. Marshall, 9 Pa. Super. Ct. 621, 44 W. N. C. 68. When the usual course of business is for the agent to receive his principal's mail the presumption is that the agent received it, rather than the principal. Schutz v. Jordan, 141 U. S. 213, 35 L. ed. 705, 11 Sup. Ct. Rep. 906. It cannot be presumed in aid of a court's jurisdiction that a single copy of a notice directed to two defendants was delivered by the postal author- ities to each, where they are not shown to have been connected by way of partnership or other agency. Dennison v. Taylor, 142 111. 45, 31 N. E. 148, afBrming 37 111. App. 385. z Pioneer Sav. & L. Co. v. Thompson, 115 Ala. 553, 22 So. 511 ; Buehler v. Gait, 35 111. App. 225; Home Ins. Co. v. Marple, 1 Ind. App. 411, 27 N. E. 633; Dade v. Aetna Ins. Co. 54 Minn. 336, 56 N. W. 48; People's Bank v. Scalzo, 127 Mo. 164, 29 S. W. 1032; Bachman v. Brown, 56 Mo. App. 396; Moran v. Abbott, 26 App. Div. 570, 50 N. Y. Supp. 337; Ackley v. Welch, 85 Hun, 178, 32 N". Y. Supp. 577 ; Manhattan L. Ins. Co. v. Fields, — Tex. Civ. App. — , 26 S. W. 280; Schutz v. Jordan, 141 U. S. 213, 35 L. ed. 705; Henderson v. Carbondale Coal & Coke Co. 140 U. S. 25, 35 L. ed. 332, 11 Sup. Ct. Rep. 691. Davidson S. S. Co. v. United States, 73 C. C. A. 425, 142 Fed. 315, affirmed in 205 U. S. 187, 51 L. ed. 764, 27 Sup. Ct. Rep. 480. See also Mer- chants' Exch. Co. V. Sanders, 74 Ark. 16, 84 S. W. 786, 4 Ann. Cas. 955 (burden is on addressee to show nondelivery). 4. Weight, effect, and sufficiency. The presumption that the addressee of a letter duly mailed received it is not overcome by his testimony that he does not remember having received it.* But the presumption is overcome by the addressee's testimony that he never received it.^ 1 McDermott v. Jackson, 97 Wis. 64, 72 N. W. 375. Nor is the addressee's impression that he did not receive the letter suffi- cient. Ashley Wire Co. v. Illinois Steel Co. 164 111. 149, 45 N. E. 410. Presumption that a letter was duly delivered through the postoffice to the general managers of an insurance company, from the fact that it was duly mailed addressed to them, is not overcome by their testimony that they have no recollection of such a letter, and never saw it, where it appears that they were general managers for several different compa- nies, and had an employee who received and opened all mail and then passed it to them for examination, and such employee does not testify. East Texas F. Ins. Co. v. Perkey, 89 Tex. 604, 35 S. W. 1050. 2Ault V. Interstate Sav. & Loan Asso. 15 Wash. 627, 47 Pac. 33. 666 BRIEF ON FACTS. Denial by the defendant in a. replevin action that she received written de- mands which the plaintiff's attorney testified he mailed her does not overcome the presumption that she received the letter, but presents a question of fact for the jury. Moran v. Abbott, 26 App. Div. 570, 50 N. Y. Supp. 337. Evidence that a member of a mutual benefit association, whose certificate provided that his membership should be forfeited on his failure to pay an assessment ordered within thirty days after notice thereof was mailed to him, did not receive such notice, justifies the finding that it was in fact never mailed, notwithstanding the testimony of the secre- tary of the association, not based upon his memory of this particular notice, but upon his practice in such matters, that it was mailed. Han- num V. Waddill, 135 Mo. 153, 36 S. W. 616. Testimony that notices of the falling due of premiums upon an insurance policy were mailed to the insured is insuflBcient to show that the postage was paid thereon, where the witness, in addition, enumerates what was done, aad does not include payment of postage. Provident Sav. Life Assur. Soo. V. Nixon, 19 C. C. A. 414, 44 U. S. App. 316, 73 Fed. 144. 5. Best evidence. Eecords of a postoffice as to the date "when the office was es- tablished is better evidence than statements contained in an encyclopedia as to the date of settlement of the town, when offered to disprove the statement of a witness that on a stated date a letter postmarked and mailed at such town was received by the witness.^ 1 Howard v. Kussell, 76 Tex. 171, 12 S. W. 525. MALICE. 667 MALICE. 1. Direct testimony. 2. Indicative conduct and declarations. 3. Presumptions and burden of proof. a. In libel or slander case. b. In action for malicious prosecution. 4. Relevancy of evidence generally. For kindred topics, see Good Faith; Inte.'^t; Knowledge.. 1. Direct testimony. One to whom malice is imputed may testify directly as to whether or not he was actuated by malice.* lArnott V. Standard Asso. 57 Conn. 86, 3 L.R.A. 69, 17 Atl. 361; Corn v. Cooper, 139 Iowa, 742, 117 N. W. 1, 118 N. W. 35, 16 Ann. Cas. 744, overruling Barr v. Hack, 46 Iowa, 308; Hay v. Eeid, 85 Mich. 296, 48 N. W. 507; Lally v. Emery, 54 Hun, 517, 8 N. Y. Supp. 135; Henn V. Horn, 56 Ohio St. 442, 47 N. E. 248; Wilson v. Noonan, 35 Wis. 321 (actions for libel); Heap v. Parrish, 104 Ind. 36, 3 N. E. 549; Coleman v. Heurich, 2 Mackey, 189; Flickinger v. Wagner, 46 Md. 580; Spaulding v. Lowe, 56 Mich. 366, 23 N. W. 46; Turner v. O'Brien, 5 Neb. 542; Leake v. Carlisle, 75 N. Y. Supp. 382; George v. Johnson, 25 App. Div. 125, 49 N. Y. Supp. 203; McCormack v. Perry, 47 Hun, 71; Autry v. Floyd, 127 N. C. 186, 37 S. E. 208; Greer v. Whitfield, 4 Lea, 85; Sherburne v. Rodman, 51 Wis. 474, 8 N. W. 414 (actions for malicious prosecution). Contra: Vandiver v. Waller, 143 Ala. 411, 39 So. 136. And that the correspondent of a paper, who sent to it a libelous article, can- not testify that he acted without malice or ill will toward the person libeled, and stated the facts as he heard them, in his investigation, ■where the newspaper published the article without any inquiry, relying simply upon its correspondent, see Van Alstyne v. Rochester Printing Co. 25 App. Div. 282, 49 N. Y. Supp. 523. 2. Indicative conduct and declarations. Evidence of an insulting manner,* or other conduct * or dec- larations,* indicative of malicious intent or motive on the part of the doer, is competent as evidence of malice, 1 Raisler v. Springer, 38 Ala. 703, 82 Am. Dec. 736. See also Abbott, Tr. Ev. 2d. ed. 796, 841. As to mode of proving manner, see Feeungs ; Intent. 668 BEIEF OIT FACTS. 2 Thus, in libel and slander, proof of repetition of the charge is competent on the question of malice. Beneway v. Thorp, 77 Mich. 181, 43 N. W. 863 ; Cruikshank v. Gordon, 48 Hun, 308, 1 N. Y. Supp. 443 ; Freeman V. Sanderson, 123 Ind. 264, 24 N. E. 239; Enos v. Enos, 135 N. Y. 609, 32 N. E. 123; McCleneghan v. Eeid, 34 Neb. 472, 51 N. W. 1037; Ran- som V. McCurley, 140 111. 626, 31 N. E. 119; Preston v. Frey, 91 Cal. 107, 27 Pac. 533. Even though the repetition be subsequent to suit brought. Westerfield v. Scripps, 119 Cal. 607,. 51 Pac. 958 (libel); Craven v. Walker, 101 Ga. 845, 29 S. E. 152 (slander); Barker v. Prizer, 150 Ind. 4, 48 N. E. 4 (slander) ; Welch v. Tribune Pub. Co. 83 Mich. 661, 11 L.E.A. 233, 47 N. W. 562 (libel) ; Eldridge v. State, 27 Fla. 162, 9 So. 448 (libel). But see Eccles v. Radam, 75 Hun, 535, 27 N. Y. Supp. 486, to the effect that neither repetition of the libel, nor the publication of other libelous matter after suit begun, is competent for any purpose. So, in actions for malicious prosecution, acts indicating malice are compe- tent; such as activity and forwardness in causing the publication of the fact of plaintiff's arrest. Smith v. Maben, 42 Minn. 516, 44 N. W. 792; Cooney v. Chase, 81 Mich. 203, 45 N. W. 833. The apparent anxiety of defendant to have an arrest made, and his efforts to that end. Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308; Willard v. Petitt, 153 111. 663, 39 N. E. 991 (evidence that defendant, who claimed to have acted in good faith on the advice of counsel, inquired where she could get a lawyer to do a "dirty trick"). That defendant had said plaintiff was a, rascal, a,nd that before he was through with him he would have him behind the bars, even though said after he had taken advice of counsel and been told that plaintiff was guilty. Hidy v. Murray, 101 Iowa, 65, 69 N. W. 1138. And that plaintiff may, on his direct examination, testify to his having had difficulty with defendant, see Thurston v. Wright, 77 Mich. 96, 43 N. W. 860. But evidence as to the number of persona present when the officer went to arrest plaintiff is improper where defendant did not direct the manner of mating the arrest, participate in it, or subsequently approve it. Marks v. Hastings, 101 Ala. 165, 13 So. 297. 3 So held of declarations of one sued for slander, as to the motives which in- fluenced him in his conduct toward plaintiff. Hintz v. Graupner, J38 111. 158, 27 N. E. 935; Wright v. Gregory, 9 App. Div. 85, 41 N. Y. Supp. 139. Though made after suit begun. Morasse v. Brochu, 151 Mass. 567, 8 L.R.A. 524, 25 N. E. 74. So, also, of threats of violence by one accused of murder, directed against the deceased. State v. Pain, 48 La. Ann. 311, 19 So. 138; State v. Fon- tenot, 48 La. Ann. 305, 19 So. Ill; Com. v. Holmes, 157 Mass. 233, 32 N. E. 6. And in People v. Coughlin, 13 Utah, 58, 44 Pac. 94, evidence that defendant, charged with murder in killing a person while resisting arrest, upon being informed five days before the homicide that the of- ficers were after himj said, "Let them come, T am ready for them,''— MALICE. 669 was held admissible to show malice against any person attempting to arrest him. See further as to the proof of threats, note to Wilson V. State (Fla.) 17 L.R.A. 654. 3. Presumptions and burden of proof. a. In libel or slander case. — In an action for libel, malice need not be expressly proved,* since libelous publications are presumed to be made maliciously.^ So, malice may be inferred from proof that slanderous words were spoken without justifi- cation.' But the presumption of malice is rebutted in case of a privileged communication, and the burden of proving malice is on the party alleging it.* iJozsa V. Moroney, 125 La. 813, 27 L.R.A. (N.S.) 1041, 51 So. 908, 19 Ann. Cas. 1193. 2 State V. Mason, 26 Or. 273, 26 L.K.A. 779, 46 Am. St. Eep. 629, 38 Pae. 130; Pennsylvania Iron Works Co. v. Henry Vogt Mach. Co. 139 Ky. 497, 8 L.R.A.(N.S.) 1023, 96 S. W. 551; Levert v. Daily States Pub. Co. 123 La. 594, 23 L.R.A. (N.S.) 726, 131 Am. St. Eep. 356, 49 So. 206. One claiming to have been libeled by the report of a public officer has the burden of showing the falsity of the report and the malice of its author. Peterson v. Steenerson, 113 Minn. 87, 31 L.R.A. (N.S.) 674, 129 N. W. 147. Malice cannot be implied from the fact of the publication of a statement made in the discharge of a duty and looking to the prevention of a wrong, even if it is false; and to sustain an action therefor the exist- ence of evil motive must be proved. Missouri P. R. Co. v. Richmond, 73 Tex. 568, 4 L.R.A. 280, 15 Am. St. Rep. 794, 11 S. W. 555. In the absence of anything on the face of a privileged communication al- leged to be slanderous, to indicate it, malice cannot be inferred from the words of the communication. Trimble v. Morrish, 152 Mich. 624, 16 L.R.A.(N.S.) 1017, 116 N. W. 451. Nor will malice on the part of one making a privileged communication to another be inferred merely because he declined to name his informant. Ibid. 8Broughton v. McGrew, 5 L.R.A. 406, 39 Fed. 672; Byam v. Collins, 111 N. Y. 143, 2 L.R.A. 129, 7 Am. St. Rep. 726, 19 N. E. 75. 4 Nichols V. Eaton, 110 Iowa, 509, 47 L.R.A. 483, 80 Am. St. Rep. 319, 81 N. W. 792; Redgate v. Roush, 61 Kan. 480, 48 L.R.A. 236, 59 Pac. 1050; Holmes v. Royal Fraternal Union, 222 Mo. 556, 26 L.R.A. (N.S.) 1080, 121 S. W. 100; Denver Public Warehouse Co. v. Holloway, 34 Colo. 432, 3 L.R.A.(N.S.) 696, 114 Am. St. Rep. 171, 83 Pac. 131, 7 Ann. Cas. 840; Lawson v. Hicks, 38 Ala. 279, 81 Am. Dec. 49; Atwater V. Morning News Co. 67 Conn. 504, 34 Atl. 865; Coloney v. Farrow, 5 App. Div. 607, 39 N. Y. Supp. 460; Haft v. First Nat. Bank, lit 670 BRIEF ON PACTS. App. Div. 423, 46 N. Y. Supp. 481; Brown v. Norfolk & W. R. Co. 100 Va. 619, 60 L.R.A. 472, 42 S. E. 664; Johnson v. Brown, 13 W. Va. 71; Calkins v. Sumner, 13 Wis. 194, 80 Am. Dec. 738, and other cases in note in 3 L.R.A. (N.S.) 696. h. In action for malicious prosecution. — Malice may be in- ferred from gross and culpable negligence in omitting to make suitable and reasonable inquiries before instituting the prose- cution.^ It may be inferred from the circumstances surrounding and attending upon the prosecution ; and in legal contemplation there is malice if the prosecution was instituted wilfully and purposely, whether the motive was injury to the accused, to- gain some advantage to the prosecutor, or through mere wanton- ness or carelessness, if it was at the same time wrong and un- lawful within the knowledge of the actor.^ It may be inferred from the conduct, zeal, and activity of a party in conducting the prosecution of a plaintiff ; ' from gross misstatements made for the purpose of misleading the prosecuting officers ; * from the falsity of an affidavit on which the arrest was procured ; ° from the fact that the plaintiff in his affidavit for an attachment knowingly stated the debt sued for at a greater amount than was due ; * from the fact that the action was wilfully and purposely prosecuted, if at the same time it was wrong and unlawful and that fact was known to the prosecutor ; ' from proof showing a gross, wanton, and reckless disregard of the rights of the per- son prosecuted ; ' from the discharge of plaintiff by the committ- ing magistrate ; * from the intentional use of criminal process in order to ceorce payment of a debt, and not to vindicate public justice; '" or from any improper and unjustifiable motives which the facts disclose influenced the conduct of the defendant in instituting the prosecution.'' But malice may not be inferred from plaintiff's discharge by a magistrate without an investigation into the merits, on the ground that he had no jurisdiction ; nor can it be inferred from a second prosecution for the same offense in another county, which, after advice of counsel that, without reference to the truth of the charge, the prosecution was likely to fail for want of jurisdiction in that court, was nonprossed with consent of the prosecutor; '^ nor from the fact that defendant discontinued MALICE. 6Y1 the prosecution for the reason that he had been advised by counsel that the affidavit was not in proper form ; " nor from the mere fact that the termination of the attachment suit vs^as in favor of plaintiff ; " nor from the fact that defendant, subpoenaed before the grand jury, testified, on being questioned, that plain- tiff had assaulted him, it not appearing that he had any other connection vs^ith the prosecution ; ^° nor merely from the doing of an act v^ithout that ordinary prudence and discretion which persons of mature minds and sound judgment are presumed to have.'* iWiggin V. Coffin, 3 Story, 1, Fed. Cas. No. 17,624; Stubbs v. MulhoUand, 168 Mo. 47, 67 S. W. 650. 2 Lunsford v. Dietrich, 93 Ala. 565, 30 Am. St. Eep. 79, 9 So. 308 ; Alsop V. Lidden, 130 Ala. 548, 30 So. 401; Stamper v. Raymond, 38 Or. 16, 62 Pac. 20; Eggett v. Allen, 119 Wis. 625, 96 N. W. 803. 3 Straus V. Young, 36 Md. 246. 4 Wiggin V. Coffin, 3 Story, 1, Fed. Cas. No. 17,624. 5 Navarina v. Dudrap, 66 N. J. L. 620, 50 Atl. 353. 6 Tamblyn v. Johnston, 62 C. C. A. 601, 126 Fed. 267. 7 Pullen V. Glidden, 66 Me. 202; Leake v. Carlisle, 75 N. Y. Supp. 382. B Johnson v. McDaniel, 5 Ohio S. & C. P. Dec. 717, 7 Ohio N. P. 467; Blunk V. Atchison, T. & S. F. K. Co. 38 Fed. 311. 9 Sappington v. Watson, 50 Mo. 83. 10 Ross V. Langworthy, 13 Neb. 492, 14 N. W. 515; Peterson v. Keisdorph, 49 Neb. 529, 68 N. W. 943; Rosenblatt v. Rosenberg, 1 Neb. (Unof.) 656, 95 N. W. 686. 11 Gee V. Culver, 13 Or. 598, 11 Pac. 302; Stamper v. Raymond, 38 Or. 16, 62 Pac. 20. 12 McClaflferty v. Philp, 151 Pa. 86, 24 Atl. 1042. 13 Funk V. Amor, 7 Ohio C. C. 419, 4 Ohio C. D. 662. 14 Leyser v. Field, 5 N. M. 356, 23 Pac. 173. 16 Richter v. Koster, 45 Ind. 440. 16 Jenkins v. Gilligan, 131 Iowa, 176, 9 L.R.A.(N.S.) 1087, 108 N. W. 237. 4. Relevancy of evidence generally. Upon the trial of an action for malicious prosecution the plaintiff, when attempting to establish a want of probable cause, is not confined to proof of such facts as he can affirmatively show were actually known to defendant, but may also prove the exist- ence of such open and notorious facts as would or should have been ascertained by the latter had he, before instituting the proceedings, made such inquiry and investigation as anyone with 6Y2 BEIEF ON FACTS. honest motives, and not actuated by malice, would have made.^ So, testimony as to knowledge of the business and financial affairs of a person against whom an attachment suit was brought, and of his efforts to borrow money, is admissible on the ques- tion of probable cause and malice, in a suit for malicious prose- cution of such attachment suit.^ For the purpose of showing the absence of an improper or unjustifiable motive for the pub- lication of an alleged libel, defendant may show that he derived his information from articles in newspapers previously given to the public, and may give such articles in evidence before the jury.* But evidence that a newspaper correspondent had heard the substance of a publication which is libelous per se, before sending the item to his paper, is inadmissible, in an action against the publisher, to rebut malice or to mitigate damages, where the libelous article was published without any inquiry or knowledge by defendant on the subject.* To prove malice in an action for the publication of a libel, other articles published by the same defendant are admissible, if they will bear the con- struction of ill will towards plaintiff, although in one construc- tion they contain mere matters of general political interest.* 1 Tabert v. Cooley, 46 Minn. 366, 13 L.E.A. 463, 49 N. W. 124. i LeClear v. Perkins, 103 Mich. 131, 26 L.R.A. 627, 61 N. W. 357. 3 Arnott V. Standard Asso. 57 Conn. 86, 3 L.E.A. 69, 17 Atl. 361. 4Morey v. Morning Journal Asso. 123 N. Y. 207, 9 L.K.A. 621, 20 Am. St. Eep. 730, 25 N. B. 161. s Meriwether v. Publishers: George Knapp & Co. 211 Mo. 199, 16 L.E.A. (N.S.) 953, 109 S. W. 750. MAEK. 673 MARK 1. Genuineness. 2. Burden of proof. 3. Absence of attesting witness. 4. Attestation after death. 5. Intelligence of execution. See also Accounts; Handweithstq. And as to the necessity of calling subscribing witnesses to prove attested instruments, generally, including those signed by mark, see note to Garrett v. Hanshue (Ohio), 35 L.R.A. 321 et seq. 1. Genuineness. An ordinary witness, who is sufficiently acquainted with a mark used by a person in affixing his signature to documents as to be able to identify it, may testify directly to the genuineness of the mark.* But if it appear, by cross-examination or other- wise, that his knowledge is not derived from the marksman having made or acknowledged the identical mark in the witness's absence, nor from the witness having frequently seen the mark affixed by the marksman on a number of other documents, his opinion should be excluded or struck out.* Expert evidence is competent, as in the case of handwriting properly so called.* 1 Thus, where his acquaintance with the mark comes from his having seen it affixed to various other documents than the one in controversy. George v. Surrey, Moody & M. 516; Strong v. Brewer, 17 Ala. 706; Sayer v. Glossop, 12 Jur. 465. Considering the manner in which marks of persons unable to write their own signature are usually made, by merely touching the pen while the scrivener forms the character, it is a matter of doubtful propriety whether any person ought to be allowed, as a matter of evidence, to identify such a mark as a handwriting, but the mark of some persons by reason of methods of their own adoption in its formation and its inherent peculiarities may be capable of identification. And accord- ingly. State V. Tice, 30 Or. 457, 48 Pac. 367, holds that the statutory rule as to proving handwriting by a person having a knowledge of the handwriting acquired as provided by the same statute may be applied to proving the person's mark; but that the attending circumstances Abb. Facts — 43. 67-± BEIEF ON FACTS. touching the habits of the person whose mark is in the balance, his accustomed manner of making it, and the peculiarity attending it, which render it capable of identification, should be carefully consid- ered and scrutinized by the jury in determining the weight to be ascertained to the proof of identification. But in Carrier v. Hampton, 33 N. C. (11 Ired. L.) 311, in response to aw objection to the admissibility of an instrument, on the ground that there had been no proof of the signature of the attesting witness which was made by bis mark, it was said that, although in some very extraordinary instances the mark of an illiterate person might become so well known as to be susceptible of proof, like handwriting, yet generally a mark, a mere cross, cannot be identified; and that the instrument might be read in evidence upon proof merely of the hand- writing of the party making it. Again, in Engles v. Bruington, 4 Yeates, 345, 2 Am. Dec. 411, the court admitted evidence of the handwriting of an absent attesting witness, but refused to go into evidence of the genuineness of a mark, declaring, that to "attempt to prove a mark would be idle and ludicrous." But in a later case, the Pennsylvania court, although it reversed the judg- ment for allowing proof identifying a mark to be introduced, declaring that its admission would lead to great uncertainty and open the door to fraud, seems to incline to the belief that a mark might, on inspec- tion, appear to have a something in its construction distinguishing it from the ordinary marks used by illiterate persons to authenticate their contracts. Shinkle v. Crock, 17 Pa. 159. And Travers v. Snyder, 38 111. App. 379, seems also to recognize the rule that a mark may have such established characteristics, like a hand- writing, as to render it capable of rendition and identification, but holds that a mere mark or cross without any such characteristics cannot be identified. 2 On this question the authorities are not agreed ; but the true rule doubt- less is that testimony to handwriting, founded on the principle of uni- formity in the characteristics of the habit of a writer, is inapplicable to a casual mark made by a person not in the habit of signing fre- quently. In other words, evidence founded on the assumption of a cer- tain uniformity of habit should be excluded when it is shown that there was no such habit. For the cases, see Jackson ex rel. Van Dusen V. Van Dusen, 5 Johns. 144, 155; Travers v. Snyder, 38 111. App. 379, and 2 Taylor, Ev. p. 1584, note; Lawson, Exp. Op. Ev. 296. 3 See Handwbitinq, for these rules. 2. Burden of proof. One who alleges a signature by mark has the burden of proof.* 1 Com. V. Campbell, 20 Ky. L. Eep. 54, 45 S. W. 89. MARK. 6V5 3. Absence of attesting witness. Where an attesting witness to an instrument signed by mark cannot be produced by reason of his absence or death, the instru- ment is admissible in evidence on proof of his handwriting.* 1 Sanborn v. Cole, 63 Vt. 590, 14 L.R.A. 208, 22 Atl. 716. For cases show- ing the rule as to proof of signature by mark when the attesting wit- nesses thereto are dead or cannot remember the transaction, see note to Wienecke v. Arbin (Md.) 44 L.E.A. 142. 4. Attestation after death. But an attesting witness to a signature by mark, who has sub- scribed his attestation after the death of the alleged marksman, cannot speak to the genuineness of the mark.' 1 Such an attestation is a nullity. Chadwell v. Chadwell, 98 Ky. 643, 33 S. W. 1118. 6. Intelligence of execution. One seeking to enforce the advantages secured by an instru- ment signed with a mark by an illiterate person must show that the latter fully understood the object and import of the writing he executed.' 1 Selden v. Myers, 20 How. 506, 15 L. ed. 976. Compare Knowledge, § S, note 1. 676 BEIEF ON FACTS. MAKRIAGE. 1. Direct testimony. 2. Eye-witneases. 3. Cextificates. 4. Admissions and declarations. 5. Cohabitation and repute. 6. Presumptions and burden of proof. a. In general. b. Presumptions flowing from marriage ceremony. See also Status. 1. Direct testimony. The fact of marriage may be proved by the direct testimony of one of the parties.^ 1 State V. Schweitzer, 57 Conn. 532, 6 L.R.A. 125, 18 Atl. 787 ; Bailey v. State, 36 Neb. 808, 55 N. W. 241; Com. v. Dill, 156 Mass. 226, 30 N. E. 1016. See also note to Lauderdale Peerage Claim, 17 Abb. N. C. 500. Marriage may be proved by any person who knows the fact. Sellers v. Page, 327 Ga. 633, 56 "s. E. 1011; Smith v. Fuller, 138 Iowa, 91, 10 L.R.A.(N.S.) 98, 115 N. W. 912; Southern R. Co. v. Brown, 126 Ga. 1, 54 S. E. 911. The marriage may be proved by the testimony of the parties thereto, in an action for criminal conversation, without the necessity of producing the marriage certificate. Stark v. Johnson, 43 Colo. 243, 16 L.R.A. (N.S.) 674, 127 Am. St. Rep. 114, 95 Pac. 930, 15 Ann. Cas. 868. 2. Eye-witnesses. Marriage may be established by the testimony of a witness who "T^as present at the ceremony.^ 1 People v. Imes, 110 Mich. 250, 68 N. W. 157; State v. Ulrich, 110 Mo. 350, 19 S. W. 656; United States v. De Amador, 6 N. M. 173, 27 Pac. 488; Odd Fellows' Beneficial Asso. v. Carpenter, 17 R. I. 720, 24 Atl. 578; McQuade v. Hatch, 65 Vt. 482, 27 Atl. 136; Williams v. Walton & W. Co. 9 Houst. (Del.) 322, 32 Atl. 726. See also cases in note to Lauderdale Peerage Claim, 17 Abb. N. C. 501. 3. Certificates. A certificate, purporting to be an original marriage certificate, MAEEIAGE. 677 is competent, in connection with the testimony of the alleged wife, to prove marriage.^ 1 State V. Schweitzer, 57 Conn. 532, 6 L.R.A. 125, 18 Atl. 787. See also cases in note to Lauderdale Peerage Claim, 17 Abb. N. C. 497. A paper purporting to be an original certificate of marriage by a rabbi in a foreign country, verified by the signature and seal of the official minister, is admissible as res gestw to prove the marriage, in a. crim- inal prosecution, where one of the parties testifies that it was given to her at the time of the marriage. State v. Behrman, 114 N. C. 797, 25 L.E.A. 449, 19 S. E. 220. Otherwise of a certificate fifteen years old, which has never been filed for record as required by statute, until the suit was pending, and there is no proof of its genuineness or any explanation of the delay in filing it for record. People v. Etter, 81 Mich. 570, 45 N. W. 1109. And an instrument purporting to be a marriage certificate after the signa- ture to which appear the letters "J. P. C. Co., Ga.,'' was held in Miller v. Miller, 43 S. C. 306, 21 S. E. 254, not competent to prove the fact of marriage in Georgia, in the absence of any explanation as to the meaning of the letters. For an example of a purported marriage certificate held incompetent be- cause not properly authenticated, and not complying with the statute as to form and contents, see People v. Crawford, 62 Hun, 160, 16 N. Y. Supp. 575. In People v. Imes, 110 Mich. 250, 68 N. W. 157, a foreign certificate of marriage was held unimportant as being hearsay. 4. Admissions and declarations. Marriage may also be shown by the admissions and declar- ations of the party.'' As to the admissibility of declarations of a person since de- ceased, against his or her marriage, the courts are about equally divided.^ 1 State V. Ulrich, 110 Mo. 350, 19 S. W. 656 ; Owens v. State, 94 Ala. 97, 10 So. 669; State v. Wylde, 110 N. C. 500, 15 S. E. 5; Israel v. Arthur, 18 Colo. 158, 32 Pac. 68; Atlantic City R. Co. v. Goodin (N. J. Err. & App.) 62 N. J. L. 394, 45 L.R.A. 671, 72 Am. St. Rep. 652, 42 Atl. 333. See also cases in notes to Lauderdale Peerage Claim, 17 Abb. N. C. 502, and Eisenlord v. Clum (N. Y.) 12 L.R.A. 838. 8 Holding such declarations admissible: Drawdy v. Hesters, 130 Ga. 161, 15 L.R.A. (N.S.) 390, 60 S. E. 451; Topper v. Perry, 197 Mo. 531, 114 Am. St. Rep. 777, 95 S. W 203; Imboden v. St. Louis Union Trust 678 BRIEF Olir PACTS. Co. Ill Mo. App. 220, 86 S. W. 263; Craufurd v. Blackburn, 17 Md. 49, 77 Am. Dec. 323; Hubee's Succession, 20 La. Ann. 97; Barnum v. Barnum, 42 Md. 251. Holding such declarations inadmissible: Hill v. Hill, 32 Pa. 511; Hull V. Rawls, 27 Miss. 471; Thompson v. Nims, 83 Wis. 261, 17 L.K.A. 847, 53 N. W. 502; Moore's Estate, 9 Pa. Co. Ct. 338. 5. Cohabitation and repute. Cohabitation of persons as husband and wife, and their repu- tation and recognition as such in society, is competent evidence of their marriage.^ 1 That cohabitation and repute are competent, see State v. Schweitzer, 57 Conn. 532, 6 L.R.A. 125, 18 Atl. 787; White v. White, 82 Cal. 427, 7 L.R.A. 799, 23 Pac. 276; Arnold v. Chesebrough, 46 Fed. 700; Robin- son V. Redd, 19 Ky. L. Rep. 1422, 43 S. W. 435 ; State v. Sherwood, 68 Vt. 414, 35 Atl. 353; Jackson v. Jackson, 80 Md. 176, 30 Atl. 752; Burning v. Hastings, 183 Pa. 210, 38 Atl. 627; Richardson v. Smith, 80 Md. 89, 30 Atl. 568; Potter v. Potter, 45 Wash. 401, 88 Pac. 625; Drawdy v. Hesters, 130 Ga. 161, 15 L.R.A. (N.S.) 190, 60 S. E. 451. And see note to White v. White (Cal.) 7 L.R.A. 799. But marriage cannot be proved by cohabitation alone, however long maintained. Arnold v. Chesebrough, 7 C. C. A. 508, 20 U. S. App. 87, 58 Fed. 833. And a divided reputation in the community, as to the marriage of persons, cannot be proved. Jackson v. Jackson, 82 Md. 17, 34 L.R.A. 773, 33 Atl. 317. The cohabitation, to be evidence of marriage, must be constant, not hidden and limited, and must be accompanied by general repute extending to relatives and friends of both parties with whom their daily lives are spent. Re Wallace, 49 N. J. Eq. 530, 25 Atl. 260; Smith's Estate, 3 Lack. L. News, 122. Common reputation in a family as to who are members of the family is admissible, where no superior evidence is attainable, or in connection with superior evidence, to prove pedigree, legitimacy, and marriage. Picken's Estate, 163 Pa. 14, 25 L.R.A. 477, 29 Atl. 875. 6. Presumptions and burden of proof. a. In general. — The presumption of law is that when a man and woman live together as husband and wife, and declare them- selves to be such, they are lawfully married.^ But if the relationship was meretricious in its inception, the presumption is that it continues as it began, and there must be further evidence to establish the marriage.* MARRIAGE. 679 A decree of separation raises a presumption of the marriage »f the parties.' 1 Robinson v. Taylor, 42 Fed. 803 ; Re Ruffino, 116 Cal. 304, 48 Pac. 127 ; Re Hartman, 157 Oal. 206, 36 L.R.A.(N.S.) 530, 107 Pac. 105, 21 Ann. Cas. 1302; State v. Schweitzer, 57 Conn. 532, 6 L.R.A. 125, 18 Atl. 787; Bothick v. Bothick, 45 La. Ann. 1382, 14 So. 293; Costill V. Hill, 55 N. J. Eq. 479, 40 Atl. 32. But it is a rebuttable presumption. Costill v. Hill, 55 N. J. Eq. 479, 40 Atl. 32; Laurence v. Laurence, 164 III. 367, 45 N. E. 1071; Llula's Succes- sion, 44 La. Ann. 61, 10 So. 406; United States v. Smith, 5 Utah, 232, 273, 14 Pac. 291, 15 Pac. 1. And the presumption is rebutted by a similar presumption arising from similar relations subsequently sustained to another person. Hiler v. People, 156 111. 511, 41 N. E. 181. In an action by a mother to recover damages for the alleged killing of her minor child, the burden of proof rests upon the plaintiff to show marriage, where an issue in that regard is tendered by the defendant. Lynch v. Knoop, 118 La. 611, 8 L.R.A.(N.S.) 480, 118 Am. St. Rep. 391, 43 So. 252, 10 Ann. Cas. 804. S Grimm's Estate, 131 Pa. 199, 6 L.R.A. 717, and note, 18 Atl. 1061; Barnes v. Barnes, 90 Iowa, 282, 57 N. W. 851; Bates v. Bates, 7 Misc. 547, 27 N. Y. Supp. 872; Drawdy v. Hesters, 130 Ga. 361, IS L.R.A. (N.S.) 190, 60 S. E. 451. Relations which are meretricious cannot ripen into connubial relations, but are characterized as immoral until a change of purpose is in some manner manifested. This change of purpose may not require direct proof to render relations innocent, but may be found in circumstances, and inferred from them. Wilcox v. Wilcox, 46 Hun, 40; Caujolle v. Ferrie, 23 N. Y. 90. But the presumption that when a connection between parties is illicit it continues as it began, whether it is a presumption of fact or of law, is rebuttable. White v. White, 82 Cal. 427, 7 L.R.A. 79», 23 Pac. 276. 3 Killackey v. Killackey, 156 Mich. 127, 120 N. W. 680. h. Presumptions flowing from marriage ceremony. — When the celebration of a marriage is once shown, the contract of mar- riage, the capacity of the parties, and, in fact, everything nec- essary to the validity of the marriage, will be presumed, in the absence of proof to the contrary ; ^ and the burden is on the party questioning its validity to prove such facts and circumstances as will establish its invalidity.^ The strength of this presump- tion increases with the lapse of time.' And the presumption of 680 BRIEF ON" FACTS. the marriage of a man and woman, arising from cohabitation and repute, falls before proof of the subsequent marriage, in due form, of the man or woman to a third party.* In case of a conflict of presumptions arising from two marriages of the same party, the general trend of the authorities is to the effect that the presumption in favor of the subsequent marriage overcomes that in favor of the former.^ iCartwright v. McGown, 121 111. 388, 2 Am. St. Rep. 105, 12 N. E. 737; Thomas v. Thomas, 124 Pa. 646, 17 Atl. 182; Ward v. Dulaney, 2.3 Miss. 410; Re Megginson, 21 Or. 387, 14 L.R.A. 540, 28 Pac. 388; State V. McGilvery, 20 Wash. 240, 55 Pac. 115; Summerville v. Sum- merville, 31 Wash. 411, 72 Pac. 84. Proof of due solemnization of a marriage is sufficient to raise the pre- sumption that the place where the marriage took place was duly licensed and that the registrar was present (Sichel v. Lambert, 15 C. B. N. S. 781, 33 L. J. C. P. N. S. 137, 10 Jur. N. S. 617, 9 L. T. N. S. 687, 12 Week. Rep. 312; Reg. v. Cresswell, 45 L. J. Mag. Cas. N. S. 77, L. R. 1 Q. B. Div. 446, 33 L. T. N. S. 760, 24 Week. Rep. 281, 13 Cox, C. C. 126; Reg. v. Manwaring, 37 Eng. L. & Eq. Rep. 609) ; that a proper license had been procured (Murphy v. State, 50 Ga. 150; Piera v. Piers, 2 H. L. Cas. 331, 13 Jur. 569) ; that the ceremony was performed by a competent person (Legeyt v. O'Brien, Milward, 325; Goshen v. Stonington, 4 Conn. 219, 10 Am. Dec. 121; State V. Hodgskins, 19 Me. 155, 36 Am. Dec. 742; Com. v. Haj'den, 163 Mass. 453, 28 L.R.A. 318, 47 Am. St. Rep. 468, 40 N. E. 846, 9 Am. Crim. Rep. 408; People v. Schoonmaker, 117 Mich. 190, 72 Am. St. Rep. 560, 75 N. W. 439; Re Sloan, 50 Wash. 86, 17 L.R.A. (N.S.) 960, 96 Pac. 084; Patterson v. Gaines, 6 How. 550, 12 L. ed. 553) ; and that the parties were capable of entering into the marital contract (Schmisseur v. Beatrie, 147 111. 210, 35 N. E. 525; Barber v. People, 203 111. 543, 68 N. E. 93; Alabama & V. R. Co. v. Beardsley, 79 Miss. 417, 89 Am. St. Rep. 660, 30 So. 660; Rooney v. Rooney, 54 N. J. Eq. 231, 34 Atl. 682; ilurchison v. Green, 128 Ga. 339, 11 L. R.A.(N.S.) 702, 57 S. E. 709; Franklin v. Lee, 30 Ind. App. 31, 62 N. E. 78; BergdoU's Estate, 7 Pa. Dist. E. 137). 2. Jones V. Gilbert, 135 111. 27, 25 N. E. 566; Davis v. Davis, 7 Daly, 308; Eaynham v. Canton, 3 Pick. 293; Lindsay v. Lindsay, 42 N. J. Eq. 150, 7 Atl. 666; Franklin v. Lee, 30 Ind. App. 31, 62 N. E. 78; Cash v. Cash, 67 Ark. 278, 54 S. W. 744. The law is so positive in requiring one who asserts the illegality of a marriage to take the burden of proving it that such requirement is enforced even though it involves the proving of a negative. Schmisseur V. Beatrie, 147 111. 210, 35 N. E. 525; Senge v. Senge, 106 111. App. 140; Leach v. Hall, 95 Iowa, 611, 64 N. W. 790; Alabama & V. R. Co. V. Beardsley, 79 Miss. 417, 89 Am. St. Rep. 660, 30 So. 660. MAERIACiE. 681 But it is sufficient if he offer such evidence as, in the absence of counter testimony, affords ground for presuming that his contention is true. Compton V. Benham, 44 Ind. App. 51, 85 N. E. 365. sPittinger v. Pittinger, 28 Colo. 308, 89 Am. St. Rep. 193, 64 Pac. 195; Howton V. Gilpin, 24 Ky. L. Eep. 630, 69 S. W. 766; Scott v. Scott, 25 Ky. L. Rep. 1356, 77 S. W. 1122; Picken's Estate, 163 Pa. 14, 25 L.R.A. 477, 29 Atl. 875; Nixon v. Wichita Land & Cattle Co. 84 Tex. 408, 19 S. W. 560. 4 Norman v. Goode, 113 Ga. 121, 38 S. E. 317; Moore v. Heineke, 119 Ala. 627, 24 So. 374; Lampkin v. Travelers' Ins. Co. 11 Colo. App. 249, 52 Pac. 1040; Lowery v. People, 172 111. 466, 64 Am. St. Rep. 50, 50 N. E. 165, 11 Am. Crim. Rep. 169; Hiler v. People, 156 111. 511, 47 Am. St. Eep. 221, 41 N. E. 181; Moore v. Moore, 102 Tenn. 148, 52 S. W. 778. For other authorities on the question of presumptions flowing from mar- riage ceremony, see notes in 14 L.R.A. 540, and 16 L.R.A. (N.S.) 98. The presumption of the validity of a marriage, arising from the perform- ance of a ceremony and cohabitation, will prevail over the presump- tion of the continued life of the former spouse of one of the parties. Murchison v. Green, 128 Ga. 339, 11 L.R.A. (N.S.) 702, 57 S. E. 709; Cash V. Cash, 67 Ark. 278, 54 S. W. 744; Hunter v. Hunter, 111 Cal. 261, 31 L.R.A. 411, 62 Am. St. Rep. 180, 43 Pac. 756; Stein v. Stein, 66 111. App. 526; Smith v. Fuller, 138 Iowa, 91, 16 L.R.A. (N.S.) 98, 115 N. W. 912; Dixon v. People, 18 Mich. 84; Wagoner v. Wagoner, 128 Mich. 635, 87 N. W. 898; Nixon v. Wichita Land & Cattle Co. 84 Tex. 408, 19 S. W. 560; McCausland's Estate, 213 Pa. 189, 110 Am. St. Rep. 540, 62 Atl. 780; Johnson v. Johnson, 114 111. 611, 55 Am. Rep. 883, 3 N. E. 232; Greensborough v. Underbill, 12 Vt. 606; Kelly v. Drew, 12 Allen, 107, 90 Am. Dec. 138; Wilkie v. Collins, 48 Miss. 496; Rex v. Twyning, 2 Barn. & Aid. 386, 20 Revised Rep. 480. The existence of a divorce may be presumed in favor of the validity of the second marriage. Blanchard v. Lambert, 43 Iowa, 228, 22 Am. Eep. 245; Re Edwards, 58 Iowa, 437, 10 N. W. 793; Harris v. Harris, 8 111. App. 57; Carroll v. Carroll, 20 Tex. 740; Klein v. Laudman, 29 Mo. 259; Re Rash, 21 Mont. 170, 69 Am. St. Rep. 649, 53 Pac. 312; Howton v. Gilpin, 24 Ky. L. Rep. 630, 69 S. W. 766; Senge v. Senge, 106 111. App. 140; Thewlis's Estate, 217 Pa. 307, 66 Atl. 519. But where divorce is against the policy of the law it will not be presumed. McCarty v. McCarty, 2 Strobh. L. 11, 47 Am. Dec. 585. And a presumption of divorce does not arise from the second marriage, if no record thereof can be found in the counties in which it might properly have been granted. Barnes v. Barnes, 90 Iowa, 282, 57 N. W. 851; Smith v. Fuller, 138 Iowa, 91, 16 L.R.A. (N.S.) 98, 115 N. W. 912. B Bowman v. Little, 101 Md. 273, 61 Atl. 223, 657, 1084; Franklin v. Lee, 30 Ind. App. 31, 62 N. E. 78; Parsons v. Grand Lodge, A. 0. U. W. 682 BEIEF ON FACTS. 108 Iowa, 6, 78 N. W. 676; Erwin v. English, 61 Conn. 502, 23 Atl. 753; Kooney v. Rooney, 54 N. J. Eq. 231, 34 Atl. 682; United States v. Green, 98 Fed. 63; Turner v. Williams, 202 Mass. 500, 24 L.R.A. (N.S.) 1199, 132 Am. St. Eep. 511, 89 N. E. 110. But the presumption attaching to a second marriage of a person is not sufficient to overcome direct testimony of himself and his former wife and disinterested witnesses, that the first marriage was legally solemnized. Sloan v. West, 50 Wash. 86, 17 L.R.A. (N.S.) 960, 96 Pac 684. In McCombs v. State, 50 Tex. Crim. App. 490, 9 L.R.A. (N.S.) 1036, 123 Am. St. Eep. 855, 99 S. W. 1017, 14 Ann. Cas. 72, it was held that in a prosecution for bigamy the validity of the first ceremonial marriage will not be presumed, but the evidence must show it beyond a reason- able doubt. But in State v. Kniffen, 44 Wash. 485, 120 Am. St. Rep. 1009, 87 Pac. 837, 12 Ann. Cas. 113, it was held that in a prosecu- tion for bigamy no presumption arises that there was an impediment to accused's first marriage, and the burden is upon him to establish its illegality. For other cases on question of presumption of validity of former marriage in prosecution for bigamy, see note in 9 L.B.A.(N.S.) 1036. MEASUEE. 1. Measurer. 2. Comparison. 3. Usage. 4. Best and secondary evidence. 5. Documentary evidence. '6. Parol evidence. 7. Opinions and conclusions. 8. Declarations. 9. Revelancy. See also Qtjantitt; Weight. MEASUKB. 683 1. Measurer. In the absence of statute, a measurer, though not offieiany authorized as such, may prove his own measurement,^ but his certificate is not evidence except as against a party who assented to that standard, or dealt under a usage sanctioning it.^ A stipulation calling for measurement by a particular person does not preclude a party from proving a deficiency by the testi- mony of any other person.' 1 Thomas v. Conant (Me.) 5 Atl. .533. 2Bissell ». Campbell, 54 N. Y. 353. SBigler v. Hall, 54 N. Y. 167. Compare Quantity; Weight. 2. Comparison. To prove a measurement not exactly known, a witness may be asked how the size of the thing compared with that of another which is known. ^ 1 Isbell V. New York & N. H. R. Co. 25 Conn. 556 (height of fence), s. P., Quantity. 3. Usage. Usage of trade as to what quantity is actually called for by language expressive of quantity is competent.^ A general usage of the place being proved,^ the burden is on a party seeking to evade its effect, to prove his ignorance of it. lAbb. Tr. Ev. 375. Proof of custom is admissible to show the amount to be allowed on logs sold according to "board measure," for hollow or pecky logs. Destre- han V. Louisana Cypress Lumber Co. 45 La. Ann. 920, 13 So. 230. Also to show the method intended by the parties to a contract for the sale of logs to be followed in measuring the logs, where the contract does not express the mode. Ibid. 2 Johnson v. De Peyster, 50 N. Y. 666; Walls v. Bailey, 49 N. Y. 464, 10 Am. Eep. 407; Limited, see Abbott, Tr. Ev. 364, note. 4. Best and secondary evidence. Scale books of logs are admissible to determine the quantity of lumber cut where they were accurately and properly kept and 684 BRIEF ON FACTS. are identified by witnesses familiar with their contents. The testimony of camp scalers is not better evidence.^ And a copy of a tally of logs is admissible in evidence where the paper on which the original tally was kept was not pre- served.^ The seller of logs may introduce secondary evidence of the quantity, consisting of measurements made by himself on buy- ing them, where he claims that the measurement of the purchaser from him was fraudulent, and a remeasurement is impossible because the logs have been sawed and the lumber disposed of.* A witness who testifies to his measurements of plastering work need not produce the tracings or drawings by which he made his measurements.* ISTor need witnesses who testify concerning the length and dimensions of piling, in an action for the breach of a contract for the purchase of piling of a specified size and length, have memoranda concerning it.^ 1 Mississippi River Logging Co. v. Robson, 16 C. C. A. 400, 32 U. S. App. 520, 69 Fed. 773. 2 Moore v. Beale, 20 Ky. L. Rep. 2029, 50 S. W. 850. 3 Buclcwalter Bros. v. Arnett, 17 Ky. L. Rep. 1233, 34 S. W. 238. 4 Fitzgerald v. Beers, 31 Mo. App. 536. 6 Lindsey v. Singletary, — Tex. Civ. App. — , 43 S. W. 273. 5. Documentary evidence. A memorandum of measurements of stumps of trees with a rough estimate of the amount of lumber cut from them cannot be put in evidence.^ In a proceeding to confirm a special tax for an improvement, an assessment roll estimating the width of a street is not over- come by evidence of a witness that the width of the street varied, where his testimony is partly based on measurements found in maps not shown to be correct.^ A record of the height and measurements of an accused per- son, required to be kept by the marshal, is not inadmissible as hearsay, although the clerk wrote down the measurements as they were taken and called off by another.* 1 Snodgrasa v. Coulson, 90 Ala. 347, 7 So. 736. 2 White V. Alton, :49 111. 626, 37 N. E. 96. 3 United States v. Cross, 9 Maokey, 365. MBASUEE. *58o 6. Parol evidence. Parol evidence is admissible to show the real agreement of the parties to a written contract for the purchase of a certain number of cords of wood, the length of which it not stated. Also to show that logs should be scaled by a scaler sent by one of the parties, where the written contract contains no provision for sealing.* And to prove a contemporaneous oral agreement for a certain mode of measuring logs sold under a written con- tract wherein no mode of measurement is specified.* 1 Maynard v. Render, 95 Ga. 652, 23 S. E. 194. 2 Gould V. Boston Excelsior Co. 91 Me. 214, 39 Atl. 554. S Johnson v. Burns, 39 W. Va. 658, 20 S. E. 686. 7. Opinions and conclusions. The court does not exceed its discretion by appointing experts, when necessary, to obtain information as to measurements nec- essary to be made under a contract, where they are matters pecu- liarly within the knowledge of experts.^ And parol testimony of experts is admissible to show the number of acres by measure- ment in a fractional quarter-section embraced in a patent.* A civil engineer may testify as an expert as to the number of cubic feet in a wall, based upon the measurements of another engineer, who has testified for the adverse party, in order to show whether the calculations of the latter were correct.* But a measurement of the cubic contents of a bank of earth is inadmissible where the parties making it had no knowledge of the original contour of the ground, and did not use proper instruments, or run profiles over any portion of the bank.* One without personal knowledge of the work done may testify to the quantity of paving done under a contract where he ascer- tained the amount after completion by measurements and calcu- lations.* An answer of a witness who has measured an opening through which the plaintiff had fallen, that he was called to go and meas- ure it, and therefore was "careful" in doing so, while it states 686 BEIEF ON FACTS. a conclusion, is harmless if other portions of his testimony show how the measurements were made.^ 1 O'Donnell v. Henry, 44 La. Ann. 845, 11 So. 245. 2 Campbell v. Wood, 116 Mo. 196, 22 S. W. 796. SMoelering v. Smith, 7 Ind. App. 451, 34 N. B. 675. 4 Rothwell V. Dean, 60 Mo. App. 428. 6 Vulcanite Paving Co. v. Ruch, 147 Pa. 251, 23 Atl. 555. 6 Pennsylvania Co. v. Frund, 4 Ind. App. 469, 30 N. E. 1116. 8. Declarations. A witness without personal knowledge of the facts, hut who obtained all his information from one who made the measure- ments, is incompetent to testify as to them.'' But the declara- tions of a deceased person against the correctness or honesty of the measurements made by him are admissible in an action in- volving such measurements.* Measurements made by two persons, each relying on the cor- rectness of the other's statements, cannot be proved by one alone when both can be produced.* 1 Holmes v. Chartiers Oil Co. 138 Pa. 546, 21 Atl. 231. 2 Malone v. Gates, 87 Mich. 332, 49 N. W. 638. 3 Sovereign v. Mosher, 86 Mich. 36, 48 N. W. 611. 9. Relevancy. Testimony by a station agent that he does not know of any change in a switch, between the time of an accident and of meas- urements taken over a year afterwards, is sufficient foundation for the introduction of such measurements.* 1 Brooke v. Chicago, E. I. & P. R. Co. 81 Iowa, 504, 47 N. E. 74. Evidence of the correctness and manner of taking measurements of the place where plaintiff was injured by a fall on a sidewalk is admissible. Stapleton v. Newburg, 9 App. Div. 39, 41 N. Y. Supp. 96. MEMBERSHIP. 687 MEMBEESHIP. 1. Record. 2. Judicial notice. 3. Presumptions and burden of proof. a. In general. b. Office holding. c. Attendance at meeting. 4. Best and secondary evidence. 5. Parol evidence. 1. Record. Neither the record of a corporation or society,* nor a statutory registry of members,^ is conclusive. iHawkshaw v. Supreme Lodge K. of H. 29 Fed. 770; Lazensky v. Supreme Lodge K. of H. 24 Blatchf. 533, 31 Fed. 592; Cook v. Chittenden, 25 Fed. 544 (stock book). Entries in stock book of corporation are admissible is an action against the stockholder to enforce their personal liability on a judgment against the corporation, for the purpose of raising the presumption that one of the defendants whose name appeared on the stock book as a stockholder was the owner of the stock, even though such stock book did not contain the entries prescribed by statute. Holland v. Du- luth Iron Min. & Development Co. 65 Minn. 324, 68 N. W. 50. The stock books of a corporation are admissible in evidence in a suit to collect an unpaid subscription to its capital stock, to show that the defendant is a stockholder, where it is shown, either by the contents of the books, or extrinsic evidence, that the person sued is the same person whose name appears upon the books. Liggett v. Glenn, 2 C. C. A. 286, 4 U. S. App. 438, 51 Fed. 381; Wells v. Thompson Mfg. Co. 54 Mo. App. 41; Taussig v. Glenn, 2 C. C. A. 314, 4 U. S. App. 524, 51 Fed. 409. A stock book of a corporation showing the name of an individual as a stock- holder is admissible in evidence to show that he was a subscriber to the stock of such corporation. South Branch R. Co. v. Long, 43 W. Va. 131, 27 S. E. 297. A stub of a stock certificate book of a corporation, containing a memo- randum indicating that a certificate of shares of stock had been issued to a, person, is wholly insufficient to prove that he was a member of such corporation. Hinsdale Sav. Bank v. New Hampshire Bkg. Co. 59 Kan. 716, 54 Pac. 1051. Entries on books of a corporation of a person's name as stockholder are inadmissible against him to show his character as such in a suit to 688 BEIEF ON FACTS. recover assessments from him. Carey v. Williams, 25 C. C. A. 227, 51 U. S. App. 204, 79 Fed. 908. The books of a, corporation, showing who are shareholders, are ad- missible in evidence to show the assent of the corporation to the con- tract of membership, but not to show the contract of the shareholder. Ibid. The only competent evidence of suspension or expulsion of a member of a fraternal and beneiicial society, or that such a member lacked good standing in his lodge, is some authorized resolution or act of the lodge by which he is expelled, suspended or degraded. Osterman v. District Grand Lodge No. 4, I. 0. B. B. — Cal. — , 43 Pac. 412; High Court of I. O. of F. V. Edelstein, 70 111. App. 95; High Court I. O. of F. v. Zak, 136 111. 185, 26 N. E. 593. Proof of the fact of membership is prima facie made by a copy of the rec- ord of the board of directors. Van Frank v. United States Masonic Benev. Asso. 158 111. 560, 41 N. E. 1005. A certificate of the secretary of a lodge, stating merely his conclusion de- rived from the lodge records, as to the time when a certain person became a, member and the date at which he received his demit, is inadmissible where the entry showing these facts might have been established by examined copies. Howard v. Russell, 75 Tex. 171, 12 S. W. 525. The report of a local lodge of a benefit society, that a member was sus- pended on a certain date, is not entitled to any weight, when the assessment for which it is stated the member was in default was not payable until two weeks after the suspension, or until the day follow- ing that on which the report was forwarded. Order of Chosen Friends V. Austerlitz, 75 111. App. 74. ZBrice, Ultra Vires, 135, notes 3, 4; People v. Peck, 11 Wend. 604 (under statute requiring register to be kept of members entitled to vote) ; Herries v. Wesley, 13 Hun, 492 (list presumptive evidence against stockholders). A stock-certificate book, designed for the stock and transfer book of a corporation, though not designated as such, and the stock ledger and stock journal containing the names of all the stockholders, are admis- sible to enable the court to determine the individual liability of stock- holders for the debts of the corporation, under Cal. Civ. Code, § 378, providing that corporations for profit shall keep a book to be known as the "stock and transfer book," in which must be kept a record of all stock and transfers thereof. Knowles v. Saudereoek, 107 Cal. 629, 40 Pac. 1047. 2. Judicial notice. The court cannot, for the purpose of applying the act of Con- gress to protect commerce against unlawful monopolies, take ju- MEMBERSHIP. 689 dicial notice that a railroad corporation is a member of a traffic association.* But it is a matter of common knowledge tliat the attendants of any particular church are not limited to its mem- hers.* 1 Houston & T. C. R. Co. v. Dumas — Tex. Civ. App. — , 43 S. W. 609. SMcAlister v. Burgess, 161 Mass. 269, 24 L.E.A. 158, 37 N. E. 173. 3. Presumptions and burden of proof. a. In general. — Membership ' in good standing ^ in a fra- ternal or benevolent association will be presumed to continue such until the contrary is made to appear. And a benefit society has the burden of proving that a member was not in good standing * at the time of his death, or had not been a member sufficiently long to entitle him to a benefit.* A stockholder in a corporation is presumed to continue such until the contrary is shown.* And one whose name appears as a stockholder on the stock- hook of a corporation will be presumed the owner of the stock, and has the burden of overcoming such presumption in an action against him as a stockholder.* The burden is upon one seeking the removal of an election of- ficer on the ground that he is not a member of the political party to which he is attributed, to prove that fact.'' 1 Cornfield v. Order Brith Abraham, 64 Minn. 261, 66 N. W. 970. a Grand Lodge A. 0. U. W. v. Furman, 6 Okla. 649, 52 Pac. 932; High Court I. 0. of F. V. Edelstein, 70 111. App. 95. The production of a mutual benefit certificate by the plaintiff on the trial of an action thereon makes a prima facie ease that the assured was in good standing at the time of his death. Forse v. Supreme Lodge K. of H. 41 Mo. App. 106. SMulroy v. Supreme Lodge, K. of H. 28 Mo. App. 463; Demings v. Supreme Lodge K. of P. 20 App. Div. 622, 48 N. Y. Supp. 649. The burden of proof is upon a fraternal and beneficial society, to prove that a member was not in good standing at the time of his death, where it is expressly admitted in its answer that he "remained such member down to the time of his death, except as hereinafter set forth." Osterman v. District Grand Lodge, No. 4, I. 0. B. B. — Col. — , 43 Pac. 412. •* Weiss V. Tennant, 2 Misc. 213, 21 N. Y. Supp. 252. « Barron v. Paine, 83 Me. 312, 22 Atl. 218. Abb. Facts— 44. 690 BRIEF ON FACTS. 6 Holland v. Duluth Iron Min. & Development Co. 65 Minn. 324, 68 N. W. 50. But see Sigua Iron Co. v. Greene, 31 C. C. A. 477, 59 U. S. App. 555, 88 Fed. 207, holding that the appearance of a person's name upon the books of a corporation as a stockholder does not constitute prima facie proof that he is a stockholder, so as to throw the burden of disproving it on him. Burden of showing time of a transfer of stock of a corporation on the books of the company is upon defendant asserting it as a defense in an action under Iowa Code, §§ 1082-1084, to recover the amount of a judgment against the corporation from a stockholder. Calumet Paper Co. v. Stotts Investment Co. 96 Iowa, 147, 64 N. W. 782. 7 Mullen v'. Morrow, 123 N. C. 773, Appx. 31 S. E. 1003. b. Office holding. — If holding stock or membersliip is a legal qualification required for holding office, proof of holding ofiice is prima facie evidence of membership or holding stock.* But a person will not be presumed to be a stockholder in a corporation, merely because he is its secretary and treasurer.^ iButterfleld v. Eadde, 6 Jones & S. 1; Herries v. Wesley, 13 Hun, 492. (This presumption is not sufficient against evidence to the contrary. Butterfield v. Eadde, 9 Jones & S. 181, Reversing 6 Jones & S. 1.) 2 Horbach v. Tyrrell, 48 Neb. 514, 37 L.E.A. 434, 67 N. W. 485. c. Attendance at meeting. — -Attendance at meeting raises no presumption of membership.'' 1 Stevens v. Taft, 3 Gray, 487; Kilborn v. Rewee, 8 Gray, 415. In an action to recover money alleged to have been paid at the defend- ant's request, for a certificate of stock in a baseball corporation, defendant having denied such request or ratification, or that he ever became a stockholder, evidence that while games were in progress the defendant occupied seats reserved exclusively for stockholders is admissible. Priest v. Hale, 155 Mass. 102, 29 N. E. 197. 4. Best and secondary evidence. In the absence of any stock book found among the papers and books of a corporation, the treasurer is a competent witness to the fact that he issued certificates of stock to certain persons.* 1 Congdon V. Winsor, 17 R. I. 236, 21 Atl. 540. MERGEB. 691 5. Parol evidence. The minutes of a mutual association are not conclusive of the fact that a member was legally suspended, as required by its laws, and may be contradicted by parol evidence.' It may be shown by parol who were the members of a partner- ship at the time goods were sold to it, although the written agree- ments under which it was formed show different persons as mem- bers.^ 1 Supreme Lodge K. of H. v. Wickser, 72 Tex. 257, 12 S. W. 175. 2 Fonda v. Burton, 63 Vt. 355, 22 Atl. 594. MEEGEK. 1. Presumptions and burden of proof. 2. Extrinsic evidence. 3. Declarations and acts. For kindred topics, see Election; Intent. 1. Presumptions and burden of proof. It will be presumed where a mortgagee of land acquires the equity of redemption and expresses at the time no intention in relation to whether or not the mortgage shall merge in the fee, that he intended to do that which would prove most advantageous to himself, in the absence of circumstances indicating a contrary purpose.' And one taking a conveyance of mortgaged property in satis- 692 BRIEF OW FACTS. faction of the mortgage debt has the burden of showing that no merger of the mortgage into the fee was intended.^ Whenever two estates in the same property unite in the same person in the same capacity, and it is contended that no merger took place, the person making such contention, if entitled so to do, must allege and prove facts negativing the existence of such merger.* 1 Wyatt-Bullard Lumber Co. v. Bourke, 55 Neb. 9, 75 N. W. 241. It is presumed that a merger was not intended by the grantee of mort- gaged land, who is also the mortgagee, when the mortgage is essen- tial to his security as against an intervening title or lien, it being a, question of intent and of interest whether a merger results from uniting the fee with the mortgage. Moflfet v. Farwell, 222 111. fj4:j, 78 N. E. 925, affirming 123 111. App. 528. And the presumption is against a merger where an owner of an undivided interest in real property purchased a mortgage covering the entire property; and the burden is upon a person asserting a merger to prove facts tending to rebut such presumption. Brendt v. Breiidt, 25 Misc. 359, 53 N. Y. Supp. 1026. 2Gainey v. Anderson, 87 S. C. 47, 31 L.R.A.(N.S.) 323, 68 S. E. 888. 3 Muscogee Mfg. Co. v. Eagle & P. Mills, 126 Ga. 210, 7 L.E.A.(N.S.) 1139, 54 S. E. 1028. 2. Extrinsic evidence. The question whether one contract or title merges in another is no longer regarded as a question of law determinable only on the face of the papers ; but extrinsic evidence is freely received to show intention,' and to show how the interest of the party is affected, — at least before a third person's right has intervened.'^ iMurdock v. Gilchrist, 52 N. Y. 242, Reversing 1 Alb. L. J. 124 (executory contract not merged in deed if otherwise agreed ) . z Smith v. Roberts, 91 N. Y. 470 (mortgage not merged in fee). 3. Declarations and acts. Declarations of intent are not alone conclusive, and proof of them does not preclude proof of subsequent acts establishing a contrary intent.' 1 James v. Morey, 2 Cow. 246, reversing James v. Johnson, 6 Johns. Ch. 417. MESSAGE. 693 MESSAGE. 1. Effect of oral message. 2. Answer competent. 3. How answer proved. And see Admissions and Declarations; Convebsation ; Telegeams; Tbxephone. 1. Effect of oral message. As to effect of oral messages and errors therein, see ^ 1 Oakland Ice Co. v. Maxcy, 74 Me. 294; Brown v. Leach, 107 Mass. 364; Tryon v. White & C. Co. 62 Conn. 161, 20 L.E.A. 291, 25 Atl. 712, and cases cited in note to Oregon S. S. Co. v. Otis, 14 Abb. N. C. 397, 398. 2. Answer competent. The answer returned by the messenger is competent as part of the res gestae of the message.^ iMcGoon V. Irvin, 1 Pinney (Wis.) 526, 44 Am. Dec. 409. 3. How answer proved. The answer reported by the messenger on returning from mak- ing an inquiry may be proved by anyone who heard it.^ IRobbins v. Richardson, 2 Eosw. 248. The bearer of a message calling for an answer is competent to testify to the answer he reported as having been received, notwithstanding the delivery of the message itself may have been a communication which he is incompetent to testify to. Hill v. Woolsey, 113 N. Y. 391, 21 N. E. 127. 694 BRIEF ON PACTS. MISl^OMEE. 1. In contract or deed. 2. In proceedings. See also Identity; Name. 1. In contract or deed. Misnomer may be proved and corrected by oral evidence in any action without bringing an action to reform tbe instrument.^ The record of a deed accepted and placed on record by the grantee, showing a misnomer of such grantee, is sufficient proof that the deed had the same defect, and that the grantee knew it.* 1 Cleveland v. Burnham, 64 Wis. 347, 25 N. W. 407, 409, and cases cited. 2 Blinn v. Chessman, 49 Minn. 140, 51 N. W. 666. 2. In proceedings. Misnomer in name used in the process and pleading is freely amendable before judgment whenever the fact appears.* A variance in name is not fatal where there is no question as to the identity ' of the person, firm, or corporation, and the oppo- site party has not been misled thereby * or affected in any sub- stantial right.* 1 Bank of Havana v. Magee, 20 N. Y. 355 ; 1 Abbott, N. Pr. & F. 697. 2 Galveston, H. & S. A. R. Co. v. Gormley, — Tex. Civ. App. — , 35 S. W. 488; Hackett v. Marmet Co. 3 C. C. A. 76, 8 U. S. App. 149, 52 Fed. 268. A foreign judgment purporting to be against "C. A. Coutant" is not in- admissible in an action thereon against "Charles A. Coutant," be- cause of the variance, especially where the affidavit verifying the answer is signed "C. A. Coutant," and recites that "Charles A. Coutant" was duly sworn. Rice v. Coutant, 38 App. Div. 543, 56 N. Y. Supp. 351. An allegation that one partner at the dissolution of the partnership as- sumed liabilities of the firm, as shown by an itemized list showing a debt due "J. McAdam & Co.," is not sustained by proof of a debt due "John McAdams." Elbridge v. McAdams, — Tex. Civ. App. — , 24 S. W. 310. A variance between allegations and proof is not shown where the writ de- scribes plaintiff as "United States National Bank of New York," MISTAKE, 695 and the judgment introduced in evidence describes plaintiff as "Unit- ed States National Bank," and the complaint sets forth that plain- tiff is "an association or corporation duly organized and existing under the act of Congress of the United States known as the national bank act, and carrying on business in the city of New York as a national bank." United States Nat. Bank v. Venner, 172 Mass. 449, 52 N. E. 543. That the name of the payee of a note as described in a complaint in replevin is different from the name of the payee as it appears when the note is presented in evidence does not constitute a variance, where the difference was the result of an alteration in the note made after execu- tion. Citizens' Nat. Bank v. Lewis, 78 111. App. 217. 3 Osborn v. Logus, 28 Or. 302, 37 Pac. 456, 38 Pac. 190, 42 Pac. 997 ; Bosley V. Pease, 86 Tex. 292, 24 S. W. 279. A variance between an appeal bond offered in evidence and that set out in the complaint in inserting the name of "Wilson" for "Nelson" is a mere clerical error, and not misleading. Thalheimer v. Crow, 13 Colo. 397, 22 Pac. 779. ■* A slight variance relating to the firm name of interveners between a plea of intervention and proofs will be disregarded where it cannot affect any substantial right. Finding v. Hartman, 14 Colo. 596, 23 Pac. 1004. MISTAKE. 1. Mistake in certified copy. 2. Mistake as an excuse. 3. Oral evidence. 4. Burden of proof. 5. Cogency of proof. See also Accidents; Accounts; Intent; Knowledge. 1. Mistake in certified copy. A mistake in a certified copy offered in evidence may be proved by any witness who has read the original instrument and the record thereof.' 1 Booth V. Tiernan, 109 U. S. 205, 27 L. ed. 907, 3 Sup. Ct. Rep. 122. 69 G BEIEF ON FACTS. 2. Mistake as an excuse. For the purpose of negativing the excuse that an act was a mistake, evidence of a course of similar acts is competent as tending to show intent.* 1 Criminal Trial Brief. 3. Oral evidence. The rule that oral evidence is inadmissible to contradict a written instrument does not preclude oral evidence of mistake.'' 1 Fitschen v. Thomas, 9 Mont. 52, 22 Pac. 450 ; Gill v. Pelkey, 54 Ohio St. 348, 43 N. E. 991 ; Sperry v. Wesco, 26 Or. 483, 38 Pac. 623 ; Brock v. O'Dell, 44 S. C. 22, 21 S. E. 976; Bumpas v. Zachary, — Tex. Civ. App. — , 34 S. W. 672; Fudge v. Payne, 86 Va. 303, 10 S. E. 7. See more fully cases in notes to Page v. Higgins (Mass.) 5 L.R.A. 158; Ferguson v. Kafferty (Pa.) 6 L.R.A. 33, 46; German Ins. Co. v. Gueck (111.) 6 L.R.A. 838, and Durkin v. Cobleigh (Mass.) 17 L.R.A. 272. Otherwise -where the mistake is a mistake of law. Potter v. Sewall, 54 Me. 142; Wheaton v. Wheaton, 9 Conn. 96. No proof as to mistake or error can be heard in court to contradict the provisions of a statute which is perfectly regular on its face, and has passed its several readings and been duly ratified. Russell v. Ayer, 120 N. C. 180, 37 L.R.A. 246, 27 S. E. 133. That a provision in a, will locates land devised in a section where testator owned no land will not admit parol evidence of a mistake in descrip- tion, although he in fact owned land answering the description in another section, of which he did not dispose in the will. Lomax v. Lomax, 218 111. 629, 6 L.R.A.(N.S.) 942, 75 N. E. 1076. For discussion of the subject of correction of mistake in description of land devised by will, see ante, chapter on Intent, § 9, b, and notes in 16 L.R.A. 321 and 6 L.R.A. (N.S.) 942. 4. Burden of proof. The burden of proving mistake in a written instrument is upon the party impeaching the writing upon that ground.* 1 Smith V. Allen, 102 Ala. 407, 14 So. 760 ; Martyn v. Arnold, 36 Fla. 446, 18 So. 791; Fitschen v. Thomas, 9 Mont. 52, 22 Pac. 450; Parker v. Thomson, 21 Or. 523, 28 Pac. 502 ; Brown v. Chandler, 50 S. C. 385, 27 S. E. 868. See also cases in note to Page v. Higgins (Mass.) 5 L.R.A. 159. MOOW. "J"' 5. Cogency of proof. One seeking to reform a written instrument upon the ground of mistake must establish that fact by proof which is full, clear, and decisive, free from doubts and uncertainty, and such as to satisfy the conscience of a court.^ 1 Van Vleet v. Sledge, 45 Fed. 743 ; Breneiser v. Davis, 141 Pa. 85, 21 Atl. 508; Linscott v. Linscott, 83 Me. 384, 22 Atl. 253; Chapman v. Per- singer, 87 Va. 581, 13 S. E. 549; Long v. Long, 12 Ky. L. Eep. 883, 15 S. W. 853; Shulters v. Toledo, 57 Ohio St. 667, 50 N. E. 1133; Parker v. Vanhoozer, 142 Mo. 621, 44 S. W. 728; Hupsoh v. Reach, 45 N. J, Eq. 657, 18 Atl. 372; Conant v. Kimball, 95 Wis. 550, 70 N. W. 74; Een- sink V. Wiggers, 99 Iowa, 39, 68 N. W. 569. But that proof beyond reasonable doubt is not necessary, see Southard v. Curley, 134 N. Y. 148, 16 L.R.A. 561, 31 N. E. 330. It is sufficient if the evidence tending to prove the alleged mistake, if standing alone and uncontradicted, would establish a prima facie case of mistake. Ward v. Waterman, 85 Cal. 488, 24 Pac. 930. See further, on this question, cases in notes to Page V. Higgins (Mass.) 5 L.R.A. 159, and Ferguson v. Rafferty (Pa.) 6 L.R.A. 46. MOOK Almanac. An almanac may be used to ascertain the time at which the moon rose or set on a specified date.^ 1 Mobile & B. R. Co. v. Ladd, 92 Ala. 287, 9 So. 169 ; Munshower v. State, 55 Md. 11, 39 Am. Rep. 414. The controversy is not as to whether it is evidence, as held in Munshower V. State, 55 Md. 11, 39 Am. Rep. 414; or only the means of refreshing the knowledge of the court or jury, as held in Case v. Perew, 46 Hun, 57. S. p., SiTNEISE. On an issue as to the time when the moon set on a particular night, an almanac whose calculations were made on the basis of solar time is admissible without proof of the difference between solar and standard time. State v. Murray, 83 Kan. 148, 110 Pac. 103. 698 EPaEF ON FACTS. MOETALITY TABLES. 1. Admissibility generally. 2. Conclusiveness. 3. Secondary evidence of contents. 4. Authentication. Judicial notice as to, see Judicial Notice, § 1. 1. Admissibility generally. On an issue as to the probable duration of a life, standard mortality tables are admissible to aid the jury in determining the question.' But such tables are made up of selected risks, per- sons of sound body and mind, and having no physical defects or constitutional troubles ; and therefore a party relying on such a table must show that the person whose expectancy of life is in question belongs to the class of persons from which such tables are made up.^ And mortality tables have no connection with a suit for weekly benefits, and the admission thereof in evidence is error.' And such tables cannot be used in fixing the length of a sentence in a criminal case.* 1 Collins Park & Belt R. Co. v. Ware, 112 Ga. 663, 37 S. E. 975; Calvert V. Springfield Electric Light & P. Co. 231 111. 290, 14 L.R.A.(N.S.) 782, 83 N. E. 184, 12 Ann. Cas. 423; Shover v. Myrick, 4 Ind. App. 7, 30 N. E. 207; Pittsburgh, C. C. & St. L. R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033; Kircher v. Larchwood, 120 Iowa, 578, 95 N. W. 184; Croft v. Chicago, R. I. & P. R. Co. 132 Iowa, 687, 109 N. W. 1053; Illinois C. R. Co. v. Houchina, 121 Ky. 526, 1 L.R.A.(N.S.) 375, 123 Am. St. Rep. 205, 89 S. W. 530; Daniell v. Boston & M. E. Co. 184 Mass. 337, 68 N. E. 337; Wilkins v. Flint, 128 Mich. 262, 87 N. W. 195; Merrinane v. Miller, 157 Mich. 279, 25 L.R.A.(N.S.) 585, 118 N. W. 11, 122 N. W. 82; Hunn v. Michigan C. R. Co. 78 Mich. 513, 7 L.R.A. 500, 44 N. W. 502; St Louis, S. F. & T. E. Co. v. Taylor, — Tex. Civ. App. — , 134 S. W. 819 ; Pecos & N. T. R. Co. v. Williams, 34 Tex. Civ. App. 100, 78 S. W. 5. SVicksburg R. Power & Mfg. Co. v. White, 82 Miss. 468, 34 So. 331. 3 Baltimore & 0. Employees' Relief Asso. v. Post, 122 Pa. 579, 2 L.R.A. 44, 9 Am. St. Rep. 147, 15 Atl. 885. 4 People V. Burns, — Cal. — , 60 L.R.A. 270, 69 Pac. 16, on rehearing 138 Cal. 159, 60 L.R.A. 272, 70 Pac. 1087. Such ii table was held inadmissible in the case of a child four and a half years of age, where the table did not show the expectancy of life of a person under ten years of age. Decker v. McSorley, 111 Wis. 91, 86 y. W. 554. MORTALITY TABLES. 699 2. Conclusiveness. While mortality tables are competent evidence, they are not conclusive on the question of expectancy of life, and the jury may determine such expectancy from all the evidence. 1 Texas Mexican R. Co. v. Higgins, 44 Tex. Civ. App. 523, 99 S. W. 200; Ward V. Dampskibaselakabet Kjoebenhavn (D. C. E. D. Pa.) 144 Fed. 524; Hunn V. Michigan C. R. Co. 78 Mich. 513, 7 L.R.A. 500, 44 N. W. 502. 3. Secondary evidence of contents. One who has studied life tables cannot testify as to expectancy of life of a person, from the knowledge thus gained, where he has no other knowledge on the subject.^ 1 Erb V. Popritz, 59 Kan. 264, 68 Am. St. Rep. 362, 52 Pao. 871. 4. Authentication. The authenticity of writings produced as standard mortality tables must be established by proof satisfactory to the court.* The tables must be shown to have been in actual use or to have acquired a reputation for accuracy.^ But it is not necessary to show that they have been universally adopted.' Tables used by reputable insurance companies are admissible without fur- ther proof as to their authenticity.* 1 Camden & A. R. Co. v. Williams, 61 N. J. L. 646, 40 Atl. 634. Life tables printed pursuant to legislative authority, as in a Code Supple- ment, and there stated to be based upon the actuaries and combined experience tables, are sufficiently authenticated to be admitted in evidence. Clark v. Van Vleck, 135 Iowa, 194, 112 N. W. 648. And in Gorman v. Minneapolis & St. L. R. Co. 78 Iowa, 509, 43 N. W. 303, mortality tables were admitted as properly authenticated where, in addition to the fact that the tables offered were contained in Johnson's New Universal Encyclopedia, there was the testimony of one who had "had something to do with the books," that he considered it a standard and scientific work. 8Notto V. Atlantic City R. Co. 75 N. J. L. 826, 17 L.R.A. (N.S.) 1138, 127 Am. St. Rep. 835, 69 Atl. 968. 3 Mississippi & T. R. Co. v. Ayres, 16 Lea, 725. 4 Mississippi & T. R. Co. v. Ayres, 16 Lea, 725; San Antonio & A. P. R. Co. v. Morgan, — Tex. Civ. App. — , 46 S. W. 672; Missouri, K. & T. YOO BRIEF ON FACTS. R. Co. V. Ransom, 15 Tex. Civ. App. 692, 41 S. W. 826; Gulf, C. & S. F. R. Co. V. Johnson, 10 Tex. Civ. App. 254, 31 S. W. 255; Kreugar v. Sylvester, 100 Iowa, 647, 69 N. W. 1059. MOTIVE AND PUEPOSE. 1. Direct testimony. 2. Declarations. 3. Motive as affecting cause of action. 4. Motive in suing. 5. Relevant facts. For kindred topics, see Belief; Corbobobation ; Explanation; Feelings; Good Faith; Indictment; Intent; Knowledge; Malice. As to criminal cases, see Criminal Trial Brief. 1. Direct testimony. When the motive of an act is relevant, a person may testify to the motive or inducement which led him to do it.^ One who participated in a transaction may testify directly to the purpose of any ambiguous aet.^ But a witness cannot give his opinion as to the motive or pur- pose of another.^ I Riehmondville Union Seminary v. McDonald, 34 N. Y. 379 (holding that, in an action by a corporation upon a subscription paper, an officer of the corporation, examined as a witness and having knowledge upon the *» matter, may state that debts were contracted by the corporation on the faith of the subscription. This is rather a matter of fact than opin- ion) ; Hess V. Blakeslee, 2 N. Y. S. R. 309 (creditor may testify that debtor's representations induced him to delay proceedings ) ; Barrett v. Western, 66 Barb. 205 (plaintiff suing for deceit may testify that he relied on defendant's representations) ; Kruse v. Seiffert & W. Lumber MOTIVE AND PURPOSE. 701 Co. 108 Iowa, 352, 79 N. W. 118; Gushing v. Friendship, 89 Me. 525, 36 Atl. 1001 ; Hay v. Reid, 85 Mich. 296, 48 N. W. 507 ; McCormack v. Per- ry, 47 Hun, 71 ; Blankenship & B. Co. v. Willis, 1 Tex. Civ. App. 657, 20 S. W. 952. s. p., Ross v. Terry, 63 N. Y. 613 (reliance on personal responsibility, competent as negativing presumption that there was no implied warranty). Contra: Baldwin v. Walker, 91 Ala. 428, 8 So. 364. Compare Cullmans v. Lindsay, 114 Pa. 106, 6 Atl. 332 (holding that testimony to unexpressed motive is not competent; but the ques- tion is for the jury) ; Weaver v. Cone, 174 Pa. 104, 34 Atl. 551 (hold- ing it competent to ask plaintiff, in an action for fraudulently procur- ing him to sell corporate stock at less than its value, what induced him to sell at the figure at which he did sell). Thus, it having been shown that a life policy was issued on the representa- tions of the insured, the agent or officer of the company, to whom they were made, may testify whether the representations had any and what effect upon his mind, and in inducing his recommendation of the risk; and whether, but for the representations, he would have recommended its acceptance. Valton v. National Loan Fund Life Assur. Soc. 4 Abb. App. Dec. 437, Reversing 17 Abb. Pr. 268. (But contra, see § 1, In- ducement ) . But if the applicant made no representations, evidence as to what effect facts respecting the habits of the insured would have on the minds of the insurers is incompetent. Rawls v. American Mut. L. Ins. Co. 27 N. Y. 282, 291, 84 Am. Dee. 280; affirming 36 Barb. 357; Joyce v. Maine Ins. Co. 45 Me. 168. s. P., Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 473, 24 L. ed. 256. For authorities in criminal cases, see Criminal Trial Brief. Testimony of a witness (in the interest of his employers), as to his motive in doing an act, is not conclusive. Courtney v. Baker, 60 N. Y. 1, dis- missing appeal from, and overruling, 5 Jones & S. 249. Plaintifl' in an action for alienating the affections of his wife may proper- ly answer a question as to why he left defendant's farm by stating that defendant gained the affections of his wife, and that she was no more a wife to him. Hartpence v. Rogers, 143 Mo. 623, 45 S. W. 650. An agent who sued out a written attachment cannot testify that he was not actuated by malice in suing it out, but may state that in taking out the writ he did not intend to injure or harass defendant, and was actuated only by an honest desire to collect the debt. Gimbel v. Gomprecht, — Tex. Civ. App. — , 36 S. W. 781. Defendant cannot be asked with what motive he plowed up a, garden, and whether or not he considered that a contract which had been entered in- to with the plaintiff with reference to the garden had been forfeited, although the question whether he acted maliciously is in issue, as the matter of forfeiture is not for him to determine. Gall v. Dickey, 91 Iowa, 126, 58 N. W. 1075. Defendant in an action for the wrongful killing of plaintiff's husband can- 702 BEIEF OB" FACTS. not testify that his purpose in firing the fatal shot was to protect his life and person, since this is a mere declaration that he shot the de- ceased in self-defense, and an answer to the very question the jury is called upon to determine. Vawter v. Hultz, 112 Mo. 633, 20 S. W. 689. As to right of person to testify as to his own intent or motive, see ante, Intent, § 1, and note in 23 L.R.A.(N.S.) 367. 2 0sborn v. Robbins, 36 N. Y. 365, 4 Abb. Pr. N. S. 15, Reversing 37 Barb. 481 (question of duress) ; National Bank of the Metropolis v. Kennedy, 17 Wall. 19, 21 L. ed. 554 (purpose of payment) ; Wilson v. Montague, 57 Mich. 638, 24 N. W. 851 (purpose of mortgagor in demanding pos- session of the mortgaged property). 3 Hamer v. First Nat. Bank, 9 Utah, 215, 33 Pac. 941 ; Hulbut v. Boaz, 4 Tex. Civ. App. 371, 23 S. W. 446. But he may state the facts from which the jury may determine the motive, or purpose. Hamer v. First Nat. Bank, 9 Utah, 215, 33 Pac. 941. See also Intent. Mutual F. Ins. Co. v. Ritter, 113 Md. 163, 77 Atl. 388; Bowers v. Atchison, T. & S. F. R. Co. 82 Kan. 95, 107 Pa. 777. 2. Declarations. Where the motive or purpose of an act is a material fact to be shown, declarations by the actor at the time/ from which his motive or purpose may be gathered, are competent, although the actor may not be a party to the suit.* 1 In People v. Buchanan, 145 N. Y. 1, 39 N. E. 846, a trial for wife murder, declarations made by defendant during his marriage, reflecting upon his wife, exhibiting his feelings toward her, or showing a desire to be rid of her, were held competent to show motive. So, in Duncan v. State, 88 Ala. 31, 7 So. 104, a trial for wife murder, conversations of the de- fendant in reference to a girl with whom he was infatuated, had both before and after his wife's death, as well as remarks tending to show dissatisfaction with his wife, were held competent. And in Tucker v. Tucker, 74 Miss. 93, 32 L.R.A. 623, 19 So. 955, an ac- tion against a father for alienating his son's aflfections from his wife, conversations between plaintiff and defendant after the offense charged are competent to show the motive of the defendant in his supposed wrongful action. 2 Williams v. Williams, 20 Colo. 51, 37 Pac. 614, Citing 1 Greenl. Ev. 108, 123 (holding that declarations of a husband relating to his separation or contemplated separation from his wife are competent to show the motive of the separation, in an action by the wife against the husband's mother for alienating his affections). So, statements to defendant, made by a third person on which an alleged libel was founded, although made in plaintiff's absence, are admissible MOTIVE AND PtIJiPOSE. 703 for the purpose of showing the motive and intent actuating defendant in making the publication. Patten v. Belo, 79 Tex. 41, 14 S. W. 1037. One wlio has talcen a policy of life insurance from his debtor as collateral security for his debt cannot, although the absolute owner of the policy, object to the introduction by the company, in an action upon the policy, of evidence as to acts and declarations of the insured before the trans- fer of the policy, which tend to show a deliberate purpose on the part of the insured to heavily insure his life, and then commit suicide, with the intent of defrauding the companies, it being part of the res gestae. Smith V. National Ben. Soc. 123 N. Y. 85, 9 L.E.A. 616, 25 N. E. 197. 3. Motive as affecting cause of action. If the doing of an act be legal, the motive is irrelevant to the question whether the act constituted a cause of action against the person doing it.'' But if the doing of an act be illegal, evil mo- tive may be relevant to enhance damages. lOglesby v. Attrill, 105 U. S. 605, 26 L. ed. 1186 (motive of corporate offi- cers in issuing stock) ; Moran v. McClearns, 60 Barb. 388, 4 Lans. 288; Simpson v. Dall, 3 Wall. 460, 476, 18 L. ed. 265, 267 (motive in pay- ment) ; Adler v. Fenton, 24 How. 407, 16 L. ed. 696 (transfer to evade creditors) ; Pape v. Lathrop, 18 Ind. App. 633, 46 N. E. 154 (motive of master in discharging servant) ; National Protective Asso. v. Gum- ming, 170 N. Y. 315, 58 L.E.A. 135, 88 Am. St. Eep. 648, 63 N. E. 369 ; Bohn Mfg. Co. v. Hollis ( Bohn Mfg. Co. v. Northwestern Lumber- men's Asso.) 54 Minn. 223, 21 L.E.A. 337, 40 Am. St. Rep. 319, 55 N. W. 1119; Allen v. Flood [1898] A. C. 1, 67 L. J. Q. B. N. S. 119, 77 L. T. N. S. 717, 46 Week. Eep. 258, 17 Eng. Eul. Cas. 285. Malicious prosecution is an apparent exception. Thus, Fuller v. Eedding, 16 Misc. 634, 39 N. Y. Supp. 109, holds that the motive of the defendant in this class of cases is a proper subject of investigation in order to en- able the jury to pass upon the question of exemplary damages. But the appearance of a bad motive for suing may be ground for requiring a very clear case. Ee Bennett, 12 Nat. Bankr. Eeg. 183, Fed. Cas. No. 1,315. The court has inherent power to guard against abuse of its own process. See note to People v. Hektograph Co. 10 Abb. N. C. 361. Motive in buying a cause of action may be relevant in the assignee's suit in equity. See Wait, Insolv. Corp. 573, and cases cited. Compare Morris v. Tuthill, 72 N. Y. 575. The motive of a husband for a gift to his wife is immaterial, in the absence of evidence of fraud in an action brought by the wife to recover on an insurance policy on property which she had bought partly with her own earnings and partly with her husband's gift. German Ins. Co. v. Hy- man, 34 Neb. 704, 52 N. W. 401. 704 BEIEF ON FACTS. For full diacuasion of question, eflfect of bad motive to make actionable what would otherwise not be, see note in 62 L.R.A. 674. 4, Motive in suing. If there is a good cause of action, evil motive in suing on it is irrelevant.'' 1 Morris v. Tuthill, 72 N. Y. 575 ; State ex rel. Wilson v. St. Louis & S. F. E. Co. 29 Mo. App. 301; Wait, Insolv. Corp. 440. But extreme remedies peculiar to equity are often refused because so in- voked. Plaintiff's motive is not a subject of inquiry in an action to enjoin a liquor nuisance. Rizer v. Tapper, 133 Iowa, 628, 110 N. W. 1038. See also Catlin v. Vichachi Min. Co. 73 N. J. Eq. 286, 67 Atl. 194. 5. Relevant facts. Wherever the motive or purpose of an act is material, any fact which tends to shov7 that motive or purpose, or which in any way tends to explain or throw light upon the act, is compe- tent.^ 1 Thus, as tending to show a motive for endeavoring to defeat dower with- out parting with dominion and real ownership, evidence of family dis- turbances between husband and wife, and between her and one of his children by a former marriage, is relevant. Flowers v. Flowers, 89 Ga. 632, 18 L.E.A. 75, 15 S. E. 834. To show the motive of the defendant in an action for alienating the af- fections of his son from the latter's wife, conversations after the offense charged against him may be admitted. Tucker v. Tucker, 74 Miss. 93, 32 L.R.A. 623, 19 So. 955. So, for the purpose of showing the motive of the husband, defendant, in an action for enticing away another woman's husband, may show her own financial condition. Scott v. O'Brien, 129 Ky. 1, 16 L.R.A. (N.S.) 742, 130 Am. St. Rep. 419, 110 S. W. 260. Evidence that defendant, whose son plaintiff had married, was averse to plaintiff having children, is admissible in an action for alienating her husband's affections to show motive in her plot to accomplish her pur- pose of a separation between plaintiff and her husband. Lockwood v. Lockwood, 67 Minn. 476, 70 M. W. 784. The slight value of timber cut and removed from land is relevant upon the question of motive, in an action for malicious prosecution based upon an arrest for an alleged wilful trespass in the cutting and removal of such timber. Parker v. Parker, 102 Iowa, 500, 71 N. W. 421. MOTIVE AND PUEPOSE. 705 Evidence that defendaijt in an action for malicious prosecution; prior to the act on which the action is based advised an employee of the plain- tiff, who was a stranger to him, to leave such employment, and offered to obtain him another job, is admissible on the question of motive in causing the arrest, where the parties are brothers. Ibid. Evidence of the seduction, by defendant charged with murder, of the sister of the deceased, and of the whipping by him of the nephew of deceased, is admissible to show motive. Webb v. State, 73 Miss. 456, 19 So. 238. The relations between the testator and his son-in-law, tending to show the existence of a possible motive for discriminating against his daughter, are admissible in evidence, where the will is attacked on the ground of undue influence. Miller v. Miller, 187 Pa. 572, 41 Atl. 277. If the question is to be determined by a person's intent in doing a partic- ular act, evidence of other similar instances is admissible. Powell v. St. Louis & S. F. R. Co. 229 Mo. 246, 129 S. W. 963. In an action by one detained unlawfully and against her will in a re- formatory institution, to recover damages for false imprisonment, evidence is admissible tending to prove a, motive other than a purely charitable one for the detention, and that she was made to work for the profit of the institution. Gallon v. House of Good Shepherd, 158 Mich. 361, 24 L.R.A.(N.S.) 286, 133 Am. St. Rep. 387, 122 N. W. 631. Eor examples of relevant facts to show that defendant in an action for ma- licious prosecution had probable cause for instituting the prosecution, see: Call v. Hayes, 169 Mass. 586, 48 N. E. 777 (testimony by plaintiff that he instructed a third person to tell defendant that he would settle with him on Monday evening for money collected by him during the day, which offer defendant declined, competent when such third person lins testified that he delivered the message, where, on Tuesday morning, de- fendant caused plaintiff's arrest for embezzlement) ; Messman v. Ihlen- feldt, 89 Wis. 585, 62 N. W. 522 (evidence of matters testified to by the witnesses upon an examination before a justice, in presence of defendant in an action for malicious prosecution, who made » complaint against plaintiff, and of the advice of the district attorney based on such testi- mony, held competent) ; LeClear v. Perkins, 103 Mich. 131, 26 L.R.A. 627, 61 N. W. 357 (holding competent testimony as to knowledge of the business and financial affairs of a person against whom an attachment suit was brought) ; Chatfield v. Bunnell, 69 Conn. 511, 37 Atl. 1074 (to the effect that testimony tending to show amount of money taken, and that defendants believed it to be theirs, is admissible upon the question of probable cause involved in an action for the malicious prosecution of plaintiff for stealing money, the amount and ownership of which was in controversy in the criminal proceedings). The plaintiff in an action for malicious prosecution is not confined, on the question of want of probable cause, to proof of such facts as he can af- firmatively show were actually known to defendant, but may prove the existence of such open and notorious facts as would or should have been Abb. Facts — 45. 706 BRIEF 0]Sr FACTS. ascertained by the latter had he made such inquiry and investigation, before instituting the prosecution, as anyone with honest motives, and not instigated by malice, would have made. Tabert v. Cooley, 46 Minn. 366, 13 L.R.A. 463, 49 N. W. 124. He may prove that the defendant authorized him to do the act for which he was prosecuted, although he has not alleged that fact in the com- plaint, for the purpose of showing malice and want of probable cause. Sutor V. Wood, 76 Tex. 403, 13 S. W. 321. So, also, evidence of plaintiflf's conduct at the time and place of the alleged offense with which she was charged is admissible in her behalf, to show that there was nothing that constituted probable cause, although it is not claimed by defendant that she was guilty of the offense, but only that he had good reason to believe the charge. Bigelow v. Sickles, 80 Wis 98, 49 N. W. 106. But the bad character of a mother is not competent to show probable cause in an action by her son of thirteen for malicious prosecution for his arrest, with her, on a charge of larceny of which both were acquitted. Bruce v. Tyler, 127 Ind. 468, 26 N. E. 1081. ITAME AND DESIGNATIOK 1. Judicial notice. 2. Hearsay. 3. Forgotten name. 4. Interrogating witness to discover names of informants. 5. Omitting from testimony or document. 6. Trade designation. 7. Parol evidence. And see Identity; Misnomeb. Concerning the acquisition and use by an individual of a name, see note to Laflin & R. Powder Co. v. Steytler (Pa.) 14 L.R.A. 690. Upon presumption of identity of person from identity of name, see note to Rupert V. Penner (Neb.) 17 L.R.A. 824. 1. Judicial notice. Courts cannot take judicial notice of the commercial designa- NAME AND DESIGNATION. 707 tion of an article,* or as to what the synonym of an English name is in the Chinese language.* But the court has judicial knowledge of the names of coun- ties * and streets.* 1 Seeberger v. Schlesinger, 152 U. S. 581, 38 L. ed. 560, 14 Sup. Ct. Eep. 729. z United States v. Smith, 45 Fed. 476. 3 Camp V. Marion County, 91 Ala. 240, 8 So. 786; Trammell v. Chambers County, 93 Ala. 388, 9 So. 815. i Poland V. Dreyfous, 48 La. Ann. 83, 18 So. 906. 2. Hearsay. Hearsay not necessarily incompetent.* 1 Berniaud v. Beecher, 71 Cal. 38, 11 Pac. 802 (dictum, that witness may testify to what given name is represented by the initial in a person's name, although his knowledge was acquired by hearsay). 3. Forgotten name. If a witness cannot recollect a name, a list of names may be read to him to ask him which it is.* 1 Acerro v. Petroni, 1 Starkie, 100. And see Fobqotten Facts. 4. Interrogating witness to discover names of informants. Witness may be protected in refusal to disclose name of person from whom he obtained information, if the name or identity is not relevant to the issue.* 1 State V. Soper, 16 Me. 293, 33 Am. Dec. 665 (held, no error to exclude an inquiry of a witness as to the names of the persons from whom he ob- tained information which led to the arrest of the accused; for a wit- ness in a criminal trial is not bound to disclose such names). 5. Omitting from testimony or document. A name of a third person is not to be omitted from testimony or a document otherwise competent, merely because of the in- criminating or scandalous connection; * but it may be omitted by consent.* 1 E«x V. Walkley, 6 Car. & P. 175 ; Criminal Trial Brief. 708 BRIEF OK FACTS. 2 If counsel agree to withhold the name, it may be written on paper, identi- fied by the witness, and shown to the judge, without being announced or going into the record. 6. Trade designation. An expert may be asked by what name or designation an arti- cle or structure is generally known or spoken of in the trade.* 1 Mead v. Northwestern Ins. Co. 7 N. Y. 530 (builder may be asked whether he would call buildings filled in, brick buildings) ; Downs v. Sprague, 1 Abb. App. Dec. 550, 2 Keyes, 57 (action on contract to supply gas fix- tures; gas fitter competent to say whether gas meters are usually classified as gas fiixtures) ; Pollen v. Le Roy, 10 Bosw. 38, affirmed in 30 N. Y. 549 (brand of lead). Compare Schmieder v. Barney, 113 U. S. 645, 28 L. ed. 1130, 5 Sup. Ct. Kep. 624 (holding that an expert cannot be asked whether, in his opinion. Saxony dress goods were known in trade among merchants as goods of similar description to delaines, for this is a matter of common knowl- edge but he might be asked if "of similar description" is a commercial term; and if so what is its meaning). Compare Morton v. Fairbanks, 11 Pick. 368 (holding that whether what defendant offered in performance of a contract for shingles were such, was for the jury; and that the court could not on inspection rule that they were only chips). 7. Parol evidence. Parol evidence is admissible to explain an ambiguity in a written instrument arising from insufficient description of a per- son or corporation or from change of name.* 1 A latent ambiguity in the designation of a trustee in a charitable bequest, arising from the fact that there are two corporations answering to the description of the trustee in the will, is explainable by parol evidence. Keith V. Scales, 124 N. C. 497, 32 S. E. 809. But parol evidence is inadmissible to show that the legatee intended by a devise to the "Philadelphia Paid Fire Department Relief Association'' is the "Firemen's Pension Fund," where there is an association named the "Philadelphia Fire Department Relief Association." Jeanes's Es- tate, 3 Pa. Dist. R. 314. Parol evidence is admissible to identify a corporation which has executed a contract by a name other than that by which it was incorporated. Marmet Co. v. Archibald, 37 W. Va. 778, 17 S. B. 299. NATIONALITY. 709 NATIOlirALITT. 1. Of person. 2. Of vesseL As to proof of nationality, see Abbott, Tr. Ev. 130. And see Natubalization. 1. Of person. The court will so far notice judicially the relation of the Do- minion of Canada to Great Britain as to recognize the citizens of Canada as citizens and subjects of a foreign state.* But no inference that a person has acquired the status of a tribal Indian arises from the United States authorities permitting him to re- side on an Indian reservation.* 1 Lumley v. Wabash E. Co. 71 Fed. 21. 2 Stiff V. McLaughlin, 19 Mont. 300, 48 Pac. 232. 2. Of vessel. Of vessel, vs^hen incidentally involved, may be shovro by any evidence; and the documentary evidence is not essential.* A vessel at sea will not be presumed to have belonged to a nation whose law is different from ours.* 1 United States v. Furlong, 5 Wheat. 184, 5 L. ed. 64 (piracy). 2 Hynes v. McDermott, 82 N. Y. 41, 37 Am. Rep. 538, affirming 7 Abb. N. C. 98. See also United States v. Holmes, 5 Wheat. 412, 5 L. ed. 122; The Merritt, 17 Wall. 582 sub nom. Murray v. United States, 21 L. ed. 682 ; Eeusse V. Meyers, 3 Campb. 475; Wynkoop's Documenting of Vessels. 710 BEIEF ON FACTS. NATUEALIZATIOK 1. Presumptions and burden of proof. 2. Best and secondary. 3. Certified copy. 4. Record conclusive. And see Nationality. 1. Presumptions and burden of proof. Evidence that one voted may raise a legal presumption of naturalization.^ And the burden of establishing alienage of per- sons otherwise interested in property sought to be partitioned is upon the plaintiff in partition.* 1 Behrensmeyer v. Kreitz, 135 111. 591, 26 N. E. 704; People ex rel. Smith v. Pease, 27 N. Y. 45, 84 Am. Dec. 242, 25 How. Pr. 495, affirming 30 Barb. 588 (so held on question of legality of vote, in trying title to office ) . 2 Toole V. Toole, 112 N. Y. 333, 2 L.E.A. 465, 8 Am. St. Eep. 750, 19 N. E. 682. 2. Best and secondary. Naturalization cannot be proved by parol/ unless a founda- tion for secondary evidence is first laid ; and then it may be.* 1 Charles Green's Son v. Salas, 31 Fed. 106. Since proceedings of naturalization have to be recorded under 2 Story, Laws U. S. 851, neither parol testimony nor the Great Register, if not correctly made up, is admissible to prove citizenship or the filing of an intention to become a citizen. Bode v. Trimmer, 82 Cal. 513, 23 Pac. 187; Prentice v. Miller, 82 Cal. 570, 23 Pac. 189. The order of a court admitting an alien to citizenship can be proved only by the record. State ex rel. Thayer v. Boyd, 31 Neb. 682, 48 N. W. 739, 51 N. W. 602. 2 Hogan V. Kurtz, 94 U. S. 773, 24 L. ed. 317. Naturalization is not established, in the absence of record evidence, by proof that the alien made leases and performed acts relating to real estate which only a, citizen might legally perform. Richardson v. Amsdon, 85 N. Y. Supp. 342. NAVAGIBXLITY. 711 3. Certified copy. A certified copy of a record of naturalization in another state, certified according to the act of Congress ^ admissible, without further proof that it has been in the custody of the clerk, etc., and without extraneous proof of any of the preliminaries of naturalization.^ 1 Charles Green's Son v. Salas, 31 Fed. 106; United States v. Walsh, 22 Fed. 644 (indictment for perjury; clerk cannot contradict fact Involved in record) ; McCarthy v. Marsh, 5 N. Y. 263, overruling Banks v. Walker, 3 Barb. Ch. 438. a McCarthy v. Marsh, 5 N. Y. 263. 4. Eecord conclusive. The record, if produced or proved by certified copy, cannot be ■contradicted collaterally,^ even by producing a declaration made in the same court by the same alien, which is insufficient to sus- tain the judgment.* 1 For the form, see 2 Abbott, New Pr. 728; and for the authorities more fully, see Abbott, Tr. Ev. 668. But a- mistake in the copy can be shown. See Mistake. a People V. Snyder, 41 N. Y. 397, affirming 51 Barb. 589. -Compare St. Paul, M. & M. E. Co. v. Burton, 111 U. S. 788, 28 L. ed. 604, 4 Sup. Ct. Kep. 699. NAVIGABILITY. 1. Judicial notice. ^. Presumptions and burden of proof. '3. Government survey. 1. Judicial notice. Judicial notice is taken.* 3 People V. Gold Run Ditch & Min. Co. 66 Cal. 138, 144, 56 Am. Eep. 80, 4 712 BRIEF ON FACTS. Pac. 1152; Terrell t. Paducah, 122 Ky. 331, 5 L.R.A.(N.S.) 289, 92 S. W. 310; McKinney v. Northcutt, 114 Mo. App. 146, 89 S. W. 351; Neaderhouser v. State, 28 Ind. 257, 267 (dictum as to large rivers and point above which navigability ceases) ; Tewksbury v. Schulen- berg, 41 Wis. 584, 593 (small streams; and usage of improving log driving by dams) ; Clark v. Cambridge & A. Irrig. & Improv. Co. 45 Neb. 798, 64 N. W. 239 (un- navigability of a stream). Contra, as to the point at which navigability ceases. United States v. Rio Grande Dam & Irrig. Co. 174 U. S. 690, 43 L. ed. 1136, 19 Sup. Ct. Rep. 770. But see Com. v. King, 150 Mass. 221, 5 L.R.A. 536, 22 N. E. 905, holding that judicial notice might be taken that a river above a certain dam does not, either by itself or by uniting with other water, constitute a navigable stream. Courts will not necessarily take judicial notice that a. stream is navigable. People ex rel. Highway Comrs. v. Whiteside County, 122 111. App. 40. 2. Presumptions and burden of proof. A stream tributary to a navigable river above the ebb and flow of the tides is prima facie un-navigable ; and he vsrho asserts its navigability must aver and prove it.^ And a prima facie presumption of non-navigability results from failure to meander a stream, or to declare it navigable by legislation.^ 1 Morrison Bros. v. Coleman, 87 Ala. 655, 5 L.R.A. 384, 6 So. 374. So held, also, as to a ditch connected at one end with a navigable stream. Ligare v. Chicago, M. & N. R. Co. 166 111. 249, 46 N. E. 803. 2Allaby v. Mauston Electric Service Co. 135 Wis. 345, 16 L.R.A. (N.S.) 420, 116 N. W. 4. 3. Government survey. On a question of navigability a government survey of the body of water is competent, but not conclusive, evidence.^ 1 Harrison v. Fite, 78 C. C. A. 447, 148 Fed. 781. NECESSAEIES AND NECESSITY. m NEOESSAEIES AND NECESSITY. 1. Judicial notice. 2. Burden of proof. 3. Presumptions. 4. Opinion. 5. Relevancy. For kindred topics, see Caee; Cause; Condition; Effect. 1. Judicial notice. The necessity of a screen to prevent the escape of sparks from a steam engine used to propel a threshing machine is not such a matter of common observation and experience as to render evi- dence inadmissible.* Xor will the court take judicial notice that land v^as arid and needed irrigation to justify a diversion of water by a riparian 1 Glllingham v. Christen, 55 111. App. 17. 2 Slattery v. Harley, 58 Neb. 575, 79 N. W. 151. 2. Burden of proof. The burden of proof is on the petitioning company to es- tablish the necessity of taking particular land for the purpose of obtaining gravel or other material.* And a village demanding the removal of a railroad track has the burden of showing that the original necessity therefor no longer exists.^ The burden is upon defendant to show that goods furnished him while an infant and living apart from his parents were not necessaries, and that he was supplied with all such necessaries by his parents.' One who sues for damages arising from the breach of a cov- enant against encumbrances assumes the burden of proving that a sum paid by him to remove an encumbrance was reasonabl;y necessary to discharge the property from liability.* 1 Wisconsin C. Co. v. Kneale, 79 Wis. 89, 48 N. W. 248. One whose gravel has been taken by a township supervisor to be used in the repair of the highway of the township, under Ind. Eev. Stat. 1894, 714 BRIEF ON FACTS. § 6830, is not required to show that there is a necessity for the taking before recovering the value thereof. Clear Creek Twp. v. Eittger, 12 Ind. App. 355, 39 N. E. 1052. 2 Wayzata v. Great Northern R. Co. 67 Minn, 385, 69 N. W. 1073. 3 Lynch v. Johnson, 109 Mich. 640, 67 N. W. 908. •4 Hartshorn v. Cleveland, 52 N. J. L. 473, 19 Atl. 974. 3. Presumptions. The location of a railway across certain lands, and its deter- mination that they are necessary for its right of way, shows prima facie a necessity for their condemnation.^ And the ne- cessity upon which a railroad company acted when building its road is presumed to be continuous and to exist in proceedings instituted to compel a change of its track.* Notice from the supreme secretary of a mutual benefit asso- ciation to the subordinate secretaries to collect an assessment is presumptive proof that the benefit is insufficient, and that the assessment is necessary.' It will be presumed that cooking utensils, food, and materials for cooking, painting, and repairing of sails were necessary to .fit a vessel, and that it was necessary that it should be obtained on the credit of the vessel.* 1 O'Hare v. Chicago, M. & N. R. Co. 139 111. 151, 28 N. E. 923. 2 Wayzata v. Great Northern R. Co. 67 Minn. 385, 69 N. W. 1073. 3 Demings v. Supreme Lodge, K. of P. 131 N. Y. 522, 30 N. E. 572. 4 The Templar, 59 Fed. 203. 4. Opinion. The opinion of a witness that specified articles are necessary in ordinary life, within the meaning of the rule of law, is not competent.^ Otherwise as to what is necessary under a contract.* On a question for expert testimony, — such as whether a jettison was necessary in a particular storm, — the opinion of an expert is competent.' IWhitmarsh v. Angle, 3 Code Rep. 53, Am. Lave R. N. S. 595 (exemption from execution) ; Poock v. Miller, 1 Hilt. 108 (clothing for infant. Held, that testimony that the articles "were necessary" was not sufB- cient evidence that they were "necessaries,'' within the rule. The cir- K'ECESSAEIES AND NECESSITY. 715 cumstances should be shown) ; Tolles v. Wood, 16 Abb. N. C. 1, s. c, less fully, 99 N. Y. 616 (necessary support for beneficiary, which creditors cannot touch). SMerritt v. Seaman, 6 N. Y. 168 (promise to pay for whatever might be needed for the support; opinion competent that certain allowances made to the party were proper) ; France v. McElhone, 1 Lans. 7 (agent being authorized to make necessary deductions in settling claims, his opinion as to the necessity is admissible in his favor). Oral evidence of the acts and declarations of the parties, showing what they consider to be necessary, is admissible. Almgren v. Dutilli, 5 N. Y. 28. 3 Price V. Hartshorn, 44 N. Y. 94, 4 Am. Rep. 645, affirming 44 Barb. 655. (Compare Amstein v. Gardner, 134 Mass. 4; cattle guard; opinion held incompetent. ) The conductor and engineer of a train, who have been long in the service of the railroad company, are competent to testify whether, under a special order, it is necessary for a train to stop at a, certain station. Albert v. Sweet, 116 N. Y. 363, 22 N. E. 762. But in an action against a railroad company for the negligent killing of an engineer, a former fireman on defendant's road is not competent to testify as an expert in relation to the necessity of having at the side track, where the accident occurred, a device known as a "safety switch," such witness not being a, civil engineer or u, railroad builder, and his only employ- ment about a railroad having been as fireman. Ballard v. New York, L. E. & W. R. Co. 126 Pa. 141, 19 Atl. 35. The opinion of a witness as to the necessity of straightening a road by removing encroaching fences is not admissible in an action to enjoin such removal. Nicolai v. Davis, 91 Wis. 370, 64 N. W. 1001. To entitle a, county surveyor to recover the compensation prescribed by Kan. Laws 1891, chap. 89, § 13, for keeping his office open more than one day in each week, he must show that some actual and specific ne- cessity existed for keeping it open, and that it was in fact so kept open because of such specific or particular necessity therefor. His own testimony to his conclusion of such necessity is not sufficient. Sumner County Comrs. v. Simmons, 51 Kan. 304, 33 Pac. 13. 5. Relevancy. In a proceeding to remove an administrator, evidence of un- satisfied mortgages of record against the decedent is competent to show the necessity of an. administrator.* 1 Bowen v. Stewart, 128 Ind. 507, 26 N. E. 168, affirmed on rehearing in 128 Ind. 512, 28 N. E. 73. 716, BEIEF ON FACTS. NEGATIVE. 1. Presumption of innocence. 2. Lack of entry in account. 3. Lack of entry in public record. 4. Official act. 5. Nonobservation of witness. For kindred topics, see Contkadiction ; Coeboboration ; Explanation; Possibility. 1. Presumption of innocence. The presumption of innocence, when in favor of the affirma- tive of the issue as against an imputation of fraud or crime, is a sufficient support to the affirmative to throw on the other party the burden of proving the nagative,^ even though the fact be peculiarly within the knowledge of the party having a affirma- tive." 1 For the general rules, and illustrative cases, as to burden of proof of negative, see Civil Jury Brief, 84, 85; Abbott, Tr. Ev. 771, note 13; New Albany v. Endres, 143 Ind. 192, 42 N. E. 683; Carmel Natural Gas & Improv. Co. v. Small, 150 Ind. 427, 47 N. E. 11, 50 N. B. 476; Sherman Center Town Co. v. Swigart, 43 Kan. 292, 23 Pac. 569. 2 Colorado Coal & I. Co. v. United States, 123 U. S. 307, 31 L. ed. 182, 8 Sup. Ct. Rep. 131 (reviewing cases) ; Maxwell Land-Grant Case, 121 U. S. 325, suh nom. United States v. Maxwell Land-Grant Co. 30 L. ed. 949, 7 Sup. Ct. Eep. 1015; Followed in United States v. Iron Silver Min. Co. 128 U. S. 673, 32 L. ed. 571, 9 Sup. Ct. Rep. 195; Cumberland & P. R. Co. V. State use of Millslagle, 73 Md. 74, 20 Atl. 785; Nye v. Lothrop, 94 Mich. 411, 54 N. W. 178; Morley v. Liverpool, L. & G. Ins. Co. 92 Mich. 590, 52 N. W. 939; Grant v. Riley, 15 App. Div. 190, 44 N. Y. Supp. 238 ; Burdick v. Marshall, 8 S. D. 308, 66 N. W. 462; Stevenson v. Gunning, 64 Vt. 601, 25 Atl. 697. In an action for libel in the publication of an article charging the com- mission of a, crime, it is generally sufficient to prove the publication, and it is not necessary to prove that the charges contained in the ar- ticle were false, since the law presumes such charges to be false, and casts the burden of proving them true upon the person making them. Grace v. Dempsey, 75 Wis. 313, 43 N. W. 1127. When, however, the parties are not upon an equal footing, each acting for himself, but some relation of trust or confidence exists between them, touching the subject-matter of the contract, the law is not so consider- NEGATIVE. 71Y ate or trustful. Where such relations exist, it views the transaction with caution, if not with suspicion. In such cases it will not assume in favor of the agent of the fiduciary that the contract was fairly made, and that there was no abuse of confidence. It waits for such party to satisfy it affirmatively, — to affirmatively show that there was in fact no abuse of confidence; that the contract was in fact fairly made; that the other party was in truth made acquainted with all the material facts and reasons known to the fiduciary. The very making of the contract is incongruous, — prima facie inconsistent with the fiduciary relation. The transaction may be valid, but there is no pre- sumption in its favor. The presumption is of invalidity, which can only be overcome, if at all, by clear evidence of, good faith, full knowl- edge, and of independent consent and action. Burnham v. Heselton, 82 Me. 495, 9 L.E.A. 90, 20 Atl. 80, Citing Pom. Eq. Jur. §§ 955-957 ; Adams, Eq. § 61, and notes; Story, Eq. Jur. § 310; Hopkinsou v. Jones, 28 111. App. 409. 2. Lack of entry in account. To prove that a person never had any dealings with another, the accounts or records of the dealings of the latter are admissi- ble,* and so is the testimony of a witness who has examined them ; * and such witness may be allowed to testify to the result in the negative, without producing the accounts themselves.' 1 Contra. Mattocks v. Lyman, 18 Vt. 98, 46 Am. Dec. 138. But the ob- jection goes to the weight, not the competency, of the evidence, unless the accounts are those of the party offering them. Even then they may be made competent by testimony that all the party's dealings were recorded. Entries in a bank book are inadmissible in on action by a third person to show that the depositor had never received the amount for which the note in suit was given because no entry thereof was to be found in such bank book. Roe v. Nichols, 5 App. Div. 472, 38 N. Y. Supp. 1100. s Burton v. Driggs, 20 Wall. 125, 22 L. ed. 299. 3 Ibid. And see Absteacts. 3. Lack of entry in public record. To prove the fact that an instrument or entry does not appear in a public record, testimony of any person who has examined the record is competent.* The certificate of the officer having custody of the record is competent when made so by statute ; " but the existence of such a 718 BRIEF ON FACTS. statute does not preclude proving the fact by the testimony of any person.' 1 Jackson ex dem. Schuyler v. Euasell, 4 Wend. 543. 8 As by N. Y. Code Civ. Proc. § 921, reversing 2 Kev. Stat. 552, § 12. STeall v. Van Wyck, 10 Barb. 376; People v. Parker, 67 Mich. 222, 34 N. W. 720. Testimony of a witness that he had visited the recording office and ex- amined the book of protocol or powers of attorney for specified years, and that between specified dates there was no such instrument, and there was no visible evidence of mutilation, the witness producing pho- tographic copies of the pages, held, not sufficient where the deed was an ancient one corroborated by possession, etc. McPhaul v. Lapsley, 20 Wall. 264, 22 L. ed. 344. Swayne, J., said (p. 287, L. ed. p. 347) : It should at least have been shown by someone officially connected with the office, that the book seen by the witness was the book, and the only book there, wherein the instrument could have been properly re- corded, and that there was no such protocol anywhere in that book, or elsewhere in the office. It was also possible it was known in the office that the missing signature had been removed by some dishonest hand. 4. Official act. To disprove an alleged officiai act, or the genuineness of an apparent official document, the officer may testify that his custom was not to do the act in question except under given circum- stances, evidence being also given that such circumstances did not exist in this case.* 1 Morrow v. Ostrander, 13 Hun, 219. 5. Nonobservation of witness. Upon the question whether an alleged fact occurred, a witness who had adequate opportunities of observation may testify that he did not observe it, as tending to disprove its occurrence, al- though he cannot swear positively that it never took place, and although it does not appear that he was watching for it.* To show his opportunity of observation, he may testify that he would have heard or seen it if it had occurred, if he can state this as a fact, and not as a conclusion or opinion.* iGreany v. Long Island R. Co. 10] N. Y. 419, 5 N. E. 425 (passenger on train, not hearing signal), s. p., Maxwell v. Harrison, 8 Ga. 61, 52 NEGATIVE. 719 Am. Dec. 385 (witness never heard any adverse claim of title) ; Fred- enburgh v. Biddlecom, 85 N. Y. 196, 202 (never heard him make such a claim) ; Powell v. State, 101 Ga. 9, 29 S. E. 309 (never heard a neighbor's reputation or character for peaceableness questioned or at- tacked ) . So, on the question of the practical location of a boundary line, it is com- petent to ask a witness whose residence and relation to the parties are such that had there been a, difference between the adjoining proprie- tors in respect to the line he would have been likly to know it, whether he ever heard of more than one line; and his answer, that he had not, is some evidence of acquiescence in that line. Katcliffe v. Gary, 4 Abb. App. Dec. 4, s. c, as Ratcliffe v. Gray, 3 Keyes, 510. Compare Chicago & A. R. Co. v. Johnson, 116 111. 206, 4 N. E. 381 (not error on question of seriousness of injury, to refuse to allow neighbors and friends to testify that they never heard of plaintiff's being serious- ly injured). And that one libelously stated to be indebted to several banks at high rates of interest cannot testify that he never heard it reported that he was so indebted, to negative the existence of such report, see Simons v. Burnham, 102 Mich. 189, 60 N. W. 476. z Casey v. New York, C. & H. R. R. Co. 6 Abb. N. C. 104, 124, with note, 8 Daly, 220, affirmed in 78 N. Y. 518; HoUender v. New York, C. & H. R. R. Co. 19 Abb. N. C. 18; Chicago & A. R. Co. v. Dillon, 123 111. 570, 15 N. E. 181 (bell at crossing) ; Burnham v. Sherwood, 56 Conn. 229, 14 Atl. 715 (requiring, however, that the witness state all the details ) . On an issue as to whether an injury occurred in August or several months prior thereto, a witness living in the vicinity was permitted to testify that she had not heard of the injury until the latter part of August, it appearing that the witness would probably have heard of the injury at the time it occurred. Lincoln v. Hemenway, 80 Vt. 530, 69 Atl. 153. 720 BRIEF ON FACTS. NEW PEOMISE. 1. Burden of proof. 2. Presumption of knowledge. 3. Documentary evidence. How proved, see Abbott, Tr. Ev. 1040, 1042. 1. Burden of proof. The burden is upon plaintiff to prove the new promise relied upon by him to take his action out of the statute of limitations.' iWellman v. Miner, 73 111. App. 448. Plaintiff must show that the running of the statute has been arrested if he relies on such contention. Mason v. Henry, 152 N. Y. 529, 46 N. E. 837. Or that his claim is excepted from the statutory bar by payment or other- wise. Burdick v. Hicks, 29 App. Div. 205, 51 N. Y. Supp. 789. A claimant against a decedent's estate, relying on a renewal acknowledge- ment in writing of the debt, has the burden of proving its execution, under Tex. Eev. Stat. 1879, art. 1265, where the answer under oath denies such execution. Tanner v. Ames, — Tex. Civ. App. — , 37 S. W. 373. 2. Presumption of knowledge. There is a legal, but not conclusive, presumption that a person who made a new promise knew the facts necessary to establish his exemption from liability before making it.^ ITaft V. Sergeant, 18 Barb. 320. Compare Acquiescence. 3. Documentary evidence. A letter from a debtor in reply to a demand of payment, stating that the matter will receive his earliest and best atten- tion, is competent, in connection with other evidence, to show that a new promise by the defendant was more probable than otherwise.^ 1 Cole V. Putnam, 02 N. H. 616. NEWSPAPEES, 721 NEWSPAPERS. 1. Not evidence. 2. Judicial notice. See also Feinting; Publication. 1. Not evidence. A newspaper statement is not evidence without independent authentication.^ 1 Downs V. New York C. R. Co. 47 N. Y. 82 (newspaper account of acci- dent inadmissible, without proof that it was an original memorandum, or that it embodied statements made by the parties at the time) ; Child V. Sun Mut. Ins. Co. 3 Sandf. 26 (foreign newspaper inadmissible to prove deviation, unseaworthiness, etc.) ; Fosgate v. Herkimer Mfg. & Hydraulic Co. 9 Barb. 287. See further decision in 12 Barb. 352 (death notice; compare as to facts of pedigree, Abbott, Tr. Ev. 90, 100); Richardson v. Evans, 5 Okla. 803, 50 Pac. 85. A newspaper article charging a water company with distributing poison- ous water and charging excessive rates, published months prior to the death of a customer of the water company from fever, is not ad- missible in an action seeking to hold the company liable for such death. Green v. Ashland Water Co. 101 Wis. 258, 43 L.K.A. 117, 70 Am. St. Rep. 911, 77 N. W. 722. In Bergman v. Solomon, 143 Ky. 581, 136 S. W. 1010, it was held that newspaper publications were not admissible in an action by a hus- band for alienating his wife's affections. But an article published in a newspaper by defendant pending an action for libel may be admissible as a republication of the libel, to show malice. Welch v. Tribune Pub. Co. 83 Mioh. 661, 11 L.R.A. 233, 21 Am. St. Rep. 629, 47 N. W. 562. And if it appears that a trade relies on the market quotations in a news- paper, such newspaper is admissible in evidence to show the market price of an article. Mt. Vernon Brewing Co. v. Tesehner, 108 Md. 158, 16 L.R.A.(N.S.) 758, 69 Atl. 702. 2. Judicial notice. Judicial notice is not taken of the meaning of the usual printer's abbreviations of dates for insertion, at the foot of advertisements.^ 1 Johnson v. Robertson, 31 Md. 476, 489. See also Abbreviations, § 1. Abb. Facts — 46. T22 BEIEF OIT FACTS. NOTICE. 1. Anonymous letter; stranger. 2. Possession as notice. a. General rules as to effect of possession. b. Effect of statutes requiring actual notice as an equivalent of registration. c. Rules as to scope of the inquiry. d. Of what possession is notice. e. Requisites and sufficiency of possession. f. Possession of tenant as notice. g. Possession under contract of purchase. h. Possession of vendee under unrecorded deed. i. Grantor's possession after conveyance, j. Mortgagee or lienor in possession, k. Possession of cestui que trust. 1. Possession by cotenants. m. Possession by husband and wife. II. Other family relations as affecting possession, o. Application of rules to casements, p. Estoppel of possessor to assert claim. 3. Notice to charge with fraud. 4. Notice to agent. a. In general. b. Knowledge not acquired in principal's business. c. Where agent is personally interested or is perpetrating a fraud- d. Notice to officers of corporation. e. Agent with conflicting duties. f. Notice to subagent. 5. Authentication. 6. Record and index. 7. Lis pendens. As to proving the actual mental state of knowledge or suspicion, see Belief; Good Faith; Intent; Knowledge. As to communication of information, see also Conversation; LinrrBss; Mails; Message; Telegrams; Telephone. 1. Anonymous letter; stranger. An anonymous letter not sufficient to charge with, notice.* Otherwise of information from a stranger.* 1 Fillo V. Jones, 2 Abb. App. Dee. 121 (notice to charge city with negli- gence). ' 2 Hadencamp v. Second Ave. R. Co. 1 Sweeney, 490 (defect in railroad ve- hicle). KOTICE. 723 2. Possession as notice. a. General rules as to effect qf possession. — The broad rule is laid down by a large number of cases that open, notorious, un- equivocal, and exclusive possession of real estate, under an ap- parent claim of ovynership, is constructive notice to all the world of whatever claim the possessor asserts, whether such claim is legal or equitable in its nature,* and such possession precludes anyone from being an innocent purchaser as to such possessor.^ And this is so, irrespective of the recording acts,' and without reference to what the record shows,* unless, upon inquiry, the occupant failed to state his rights,^ or unless the purchaser de- rives his title from or through such occupant.* The tendency of the American courts, and the policy of the recording acts, however, is not to extend the doctrine of constructive notice to such length.'' Probably a majority of the cases restrict the gen- eral rule that possession is notice of the title or claim of the pos- sessor, by holding that proof of possession of land by a third person at the time of a conveyance thereof is not, of itself, de- cisive of notice of a claim of title upon the part of the purchaser, without regard to the other facts of the case,' and that possession of land is not so much notice of the title of the holder as a cir- cumstance which should put the purchaser or encumbrancer up- on inqiiiry.® The rule as generally asserted is that actual, open, exclusive, and notorious possession of land under a claim of title is constructive notice to a purchaser or encumbrancer, making it his duty to inquire into the nature of such possession, render- ing him chargeable with all the information such inquiry would have given him if diligently pursued." Under this rule, a pur- chaser of land in the possession of a stranger to the vendor's title cannot rely on the record title alone in making the pur- chase,'' and if he fails to inquire, he is no more protected than if he had inquired and ascertained the fact,'* and he is affected with all the equitable rights binding on his vendor. '^ The distinction between these two rules, hovyever, seems to be largely, if not entirely, one of expression. 1 Bernstein v. Humes, 71 Ala. 260; Atkinson v. Ward, 47 Ark. 533, 2 S. W. 77; Bryan v. Ramirez, 8 Cal. 46], 68 Am. Dec. 340; Yates v. Hurd, 8 Colo. 343, 8 Pac. 575; Gamble v. Hamilton, 31 Fla. 401, 12 So. 229; Wyatt V. Elam, 19 Ga. 337; Bridger v. Exchange Bank, 126 Ga. 821, 724 BEIEF ON TACTS. 8 L.R.A.(N.S.) 463, 115 Am. St. Rep. 118, 56 S. E. 97; Garbutt v. Mayo, 128 Ga. 269, 13 L.E.A.(N.S.) 58, 57 S. E. 495; Morrison v. Kelly, 22 111. 610, 74 Am. Dec. 169; Sutton v. Jervis, 31 Ind. 265, 99 Am. Dec. 631; May v. Sturdivant, 75 Iowa, 116, 9 Am. St. Eep. 463, 39 N. W. 221; Johnson v. Clark, 18 Kan. 157; Knox v. Thompson, 1 Litt. (Ky.) 350, 13 Am. Dec. 246; Beal v. Gordon, 55 Me. 482; Corey V. Smalley, 106 Mich. 257, 58 Am. St. Rep. 474, 64 N. W. 13 ; Thomp- son V. Borg, 90 Minn. 209, 95 N. W. 896 ; Hafter v. Strange, 65 Miss. 323, 7 Am. St. Eep. 659, 3 So. 190; Merrett v. Poulter, 96 Mo. 237, 9 S. W. 586; MuUins v. Butte Hardware Co. 25 Mont. 525, 87 Am. St. Eep. 430, 65 Pac. 1004; Pleasants v. Blodgett, 39 Neb. 741, 42 Am. St. Eep. 624, 58 N. W. 423; Pritchard v. Brown, 4 N. H. 397, 17 Am. Dec. 431 ; Wanner v. Sisson, 29 N. J. Eq. 141 ; Phelan v. Brady, 119 N. Y. 587, 8 L.R.A. 211, 23 N. E. 1109; Johnson v. Hauser, 88 N. C. 388; Dickson v. Dows, 11 N. D. 407, 92 N. W. 798; Eanney v. Hardy, 43 Ohio St. 157, 1 N. E. 523;' Bohlman v. Coffin, 4 Or. 313; Smith V. Phillips, 9 Okla. 297, 60 Pac. 117; Lance v. Gorman, 136 Pa. 200, 20 Am. St. Rep. 914, 20 Atl. 792; Eapley v. Klugh, 40 S. C. 134, 18 S. E. 680; Betts v. Letcher, 1 S. D. 182, 46 N. W. 193; Smith V. Olsen, 23 Tex. Civ. App. 458, 56 S. W. 568; Toland v. Corey, 6 Utah, 392, 24 Pac. 190; Pinney v. Fellows, 15 Vt. 525; Eorer Iron Co. V. Trout, 83 Va. 397, 5 Am. St. Eep. 285, 2 S. E. 713; Lowther Oil Co. V. Miller-Sibley Oil Co. 53 W. Va. 501, 97 Am. St. Eep. 1027, 44 S. E. 433, 22 Mor. Min. Eep. 656; Fery v. Pfeiffer, 18 Wis. 511; Horbach v. Porter, 154 U. S. 549, and 18 L. ed. 30, 14 Sup. Ct. Eep. 1164; Noyes v. Hall, 97 U. S. 34, 24 L. ed. 909. 2 Janes v. Wilkinson, 2 Kan. App. 361, 42 Pac. 735; Eankin Mfg. Co. V. Bishop, 137 Ala. 271, 34 So. 991; Banks v. Allen, 127 Mich. 80, 86 N. W. 383; SpofFord v. Manning, 6 Paige, 383; Bank of Orleans v. Flagg, 3 Barb. Ch. 316; Smith v. Eeid, 134 N. Y. 568, 31 N. E. 1082; Ellis V. Young, 31 S. C. 322, 9 S. E. 955; Smith v. Olsen, 23 Tex. Civ. App. 458, 56 S. W. 568; Peterson v. Philadelphia Mortg. & T. Co. 33 Wash. 464, 74 Pac. 585; Norman v. Bennett, 32 W. Va. 614, 9 S. E. 914. 3 Doyle V. Teas, 5 111. 202. 4 Toland v. Corey, 6 Utah, 392, 24 Pac. 190; Ayres v. Jack, 7 Utah, 249, 26 Pac. 300. 5 Williams v. Brown, 14 111. 200. 6 Lamoreux v. Huntley, 68 Wis. 24, 31 N. W. 331. 7 Smith v. Jackson, 76 111. 254. 8 Fair v. Stevenot, 29 Cal. 486, 11 Mor. Min. Eep. 11. 9 Hunter v. Watson, 12 Cal. 363, 73 Am. Dec. 543; Shumate v. Reavis, 49 Mo. 333. 10 Morgan v. Morgan, 3 Stew. (Ala.) 383, 21 Am. Dec. 638; Jowers v. Phelps, 33 Ark. 465; Smith v. Yule, 31 Cal. 180, 89 Am. Dec. 167; Allen V. Moore, 30 Colo. 307, 70 Pac. 682 ; McRae v. McMinn, 17 Fla. NOXICB. 725 876; Austin v. Southern Home Bldg. & L. Asso. 122 Ga. 440, 50 S. E. 382; Morrison v. Morrison, 140 111. 560, 30 N. E. 768; Wilson v. Campbell, 119 Ind. 286, 21 N. E. 893; Crooks v. Jenkins, 124 Iowa, 317, 104 Am. St. Rep. 326, 100 N. W. 82; Fearns v. Atchison, T. & S. F. R. Co. 33 Kan. 275, 6 Pac. 237; Long v. Kerrigan, 15 Ky. L. Rep. 65, 21 S. W. 99; Border State Sav. Inst. v. Wilcox, 63 Md. 525; Farnsworth v. Childs, 4 Mass. 637, 3 Am. Dec. 249; McKee v. Wilcox, 11 Mich. 358, 83 Am. Deo. 743; Lambert v. Weber, 83 Mich. 395, 47 N. W. 251; Freeman v. Moffitt, 119 Mo. 280, 25 S. W. 87; Niles v. Cooper, 98 Minn. 39, 13 L.R.A.(N.S.) 49, 107 N. W. 744; McHugh v. Smiley, 17 Neb. 626, 24 N. W. 277; Hadduck v. Wilmarth, 5 N. H. 181, 20 Am. Dec. 570; Essex County Nat. Bank v. Harrison, 57 N. J. Eq. 91, 40 Atl. 209; Williamson v. Brown, 15 N. Y. 354; Tankard V. Tankard, 79 N. C. 54; Petrain v. Kiernan, 23 Or. 455, 32 Pac. 158; Jamison v. Dimock, 95 Pa. 52; Graham v. Nesmith, 24 S. C. 285; Watkins v. Edwards, 23 Tex. 447; Duke v. Griffith, 9 Utah, 476, 35 Pac. 512; Shaw v. Beebe, 35 Vt. 205; Orr v. Clark, 62 Vt. 136, 19 Atl. 929; Chapman v. Chapman, 91 Va. 397, 50 Am. St. Rep. 846, 21 S. E. 813; Smith v. Owens, 63 W. Va. 60, 59 S. E. 762; Lea v. Polk County Copper Co. 21 How. 493, 10 L. ed. 203; Hughes v. United States, 4 Wall. 232, 18 L. ed. 303; Bright v. Buckman, 39 Fed. 243; Bailey v. Richardson, 9 Hare, 723; Daniels v. Davison, 16 Ves. Jr. 249, 10 Revised Rep. 171. 11 Security Loan & T. Co. v. Willamette Steam Mills Lumbering & Mfg. Co. 99 Cal. 636, 34 Pac. 321. «Hunt«r V. Watson, 12 Cal. 363, 73 Am. Dec. 543; Pell v. McElroy, 36 Cal. 268; Hyde v. Mangan, 88 Cal. 319, 26 Pac. 180; Scroggins v. McDougald, 8 Ala. 382; Parker v. Gortatowsky, 127 Ga. 560, 56 S. E. 846; Johnson v. Clark, 18 Kan. 157; Border State Sav. Inst. v. Wil- cox, 63 Md. 525; Hommel v. Devinney, 39 Mich. 522; English v. Rainear, — N. J. Eq. — , 55 Atl. 41; Lamont v. Cheshire, 65 N. Y. 30; M'Culloch v. Cowher, 5 Watts & S. 427; Stahn v. Hall, 10 Utah, 400, 37 Pac. 585; Hughes v. United States, 4 Wall. 232, 18 L. ed. 303. 13 Brewer v. Brewer, 19 Ala. 481; Powell v. Allred, xl Ala. 318; Jowers V. Phelps, 33 Ark. 465 ; Palmer v. Bates, 22 Minn. 532 ; Diehl v. Page, 3 N. J. Eq. 143; Braman v. Wilkinson, 3 Barb. 151; Seymour v. McKinstry, 106 N. Y. 230, 12 N. E. 348, 14 N. E. 94; Randall v. Lingwall, 43 Or. 383, 73 Pac. 1; Bidwell v. Evans, 156 Pa. 30, 26 Atl. 817 ; Hart v. Farmers' & M. Bank, 33 Vt. 252. b. Effect of statutes requiring actual notice as an equivalent of registration. — The rule- has been asserted, at least in Mass- achusetts and Missouri, that actual notice of an unrecorded deed, made by statute the equivalent of constructive notice, which is to be presumed from registry, should be so express and satisfactory 726 BEIEF ON FACTS. that it would be a fraud in the person receiving it subsequently to purchase, attach, or levy upon the land to the prejudice of the first grantee, though it need not amount to certain knowledge of the deed from the grantor to the party claiming under it.^ The contrary view has been asserted, however, that the purpose of a statute providing for the recording of conveyances, and agree- ments to convey, and instruments affecting the title to real estate, but making unrecorded instruments valid and binding between the parties thereto, and as against all other persons who have had actual notice, was not to change the rule that possession was evi- dence of title and notice to all the world of ownership, but to afford the means of preserving the chain of title and to give notice of the ownership of unoccupied lands ; and that the de- mands of a statutory provision requiring actual notice of an un- recorded conveyance to make it equivalent to a record as notice are answered if a party dealing with the land in question has information of facts which would put a prudent man upon in- quiry, and which would, if pursued, lead to actual knowledge of the title.^ 1 Curtis V. Mundy, 3 Met. 405 ; Parker v. Osgood, 3 Allen, 487 ; Toupin v. Peabody, 162 Mass. 473, 39 N. E. 280; Beatie v. Butler, 21 Mo. 313, 64 Am. Dec. 234. So, Clark v. Boawortli, 51 Me. 528, and Spoflford v. Weston, 29 Me. 140, hold that by Me. Rev. Stat. 1841, the rule that the visible possession of an improved estate by the grantee under his deed was implied notice of the sale to subsequent purchasers, although his deed had not been recorded, was changed so that actual notice was required, and the doctrine of constructive notice as to all subsequent trans- actions of that description was done away with. 2Toland v. Corey, 6 Utan, 392, 24 Pac. 190; Brinkman v. Jones, 44 Wis. 498. c. Rules as to scope of the inquiry. — A purchaser or mort- gagee of land occupied by someone other than the grantor or mortgagor is bound to inquire of the occupant as to his rights ; and if he fails to do so, he is chargeable with notice of them.* It is not sufficient to inquire of the grantor,* nor is it material that the grantor represented to the purchaser that the occupant was a tenant at will.* And he must inquire with respect to every ground, source, and right of the occupant's possession;* but where the record shows a good title he is not bound to look NOTICE. 727 teyond the record to a former occupancy of it under a deed of -which the purchaser is not shown to have had notice ; ° he is under no duty to search the record to ascertain not only the title •of the possessor, but what title he had parted with.° So, he is not bound to inquire, where he finds a third person in possession, whether there is fraud or a trust, where the title and possession give no indication that there is either.'' A purchaser is not de- feated in his right to the property by the fact that it was then in the possession of a third person, where, after having pursued the inquiry prompted by such possession, with proper diligence, he received no information which would impeach the apparent rights of his grantor.' And a purchaser neglecting to inquire into the title of an occupier of the land is not affected by any •■other equities than those which such occupier may insist on ; ® nor does the fact that the property is in the possession of a third party put him upon inquiry, where such possession is consistent -with the title appearing of record.^" T- Allen V. Cadwell, 55 Mich. 8, 20 N. W. 692 ; Lestrade v. Barth, 19 Cal. 660; Williams v. Brown, 14 111. 200; Bonnell v. Allerton, 51 Iowa, 166, 49 N. W. 857; Deetjen v. Richter, 33 Kan. 410, 6 Pac. 595; Can- field V. Hard, 58 Vt. 217, 2 Atl. 136; Bright v. Buckman, 39 Fed. 243; Miles V. Langley, 1 Euss. & M. 39. ■aCanfleld v. Hard, 58 Vt. 217, 2 Atl. 136. 3 Moreland v. Lemasters, 4 Blackf. 383. 4 Bright V. Buckman, 39 Fed. 243; Williams v. Brown, 14 111. 200. 5 Killer v. Jones, 66 Miss. 636, 6 So. 465. ■SLosey v. Simpson, 11 N. J. Eq. 246. 7 Leach v. Ansbacher, 55 Pa. 85. •«Fair v. Stevenot, 29 Cal. 486, 11 Mor. Min. Rep. 11; Crofton v. Ormsby, 2 Sch. & Lef. 583, 9 Revised Rep. 107 ; Austin v. Southern Home Bldg. & L. Asso. 122 Ga. 440, 50 S. E. 382. ■9 Hunt V. Luck [1901] 1 Ch. 45, 70 L. J. Ch. N. S. 30, 49 Week. Rep. 155, 83 L. T. N. S. 479, 17 Times L. R. 3. 10 Aden v. Vallejo, 139 Cal. 165, 72 Pac. 905; Smith v. Yule, 31 Cal. 180, 89 Am. Dec. 167; Schumacher v. Truman, 134 Cal. 430, 66 Pac. 591; Rogers v. Hussey, 36 Iowa, 664; Fargason v. Edrington, 49 Ark. 207, 4 S. W. 763; McNeil v. Polk, 57 Cal. 323. d. Of what possession is notice. — Possession of land is notice not only of the right of the possessor, to a person dealing with .another with reference thereto, but also of all facts that would 728 BEIEIP ON PACTS. be developed if inquiry were made of the one in possession and a truthful response naade.^ The purchaser is charged with notice of all that he might have learned by due and reasonable inquiry.^ But where one is in possession of land under some right which appears of record, or which is consistent with the record title, his possession is not constructive notice of another or different right, but is referable to that right. ^ 1 Austin V. Southern Home Bldg. & L. Asso. 122 Ga. 440, 50 S. E. 382 ; Deetjen v. Eichter, 33 Kan. 410, 6 Pac. 595; Lambert v. VTeber, 83 Mich. 395, 47 N. W. 251; Essex County Nat. Bank v. Harrison, 57 N. J. Eq. 91, 40 Atl. 209; Edwards v. Thompson, 71 N. C. 177; Sliaw V. Beebe, 35 Vt. 205; Frazer v. Western, How. App. Cas. 448. 2 Bright V. Buelcman, 39 Fed. 243; Carter Bros. v. Challen, 83 Ala. 135, 3 So. 313; Allen v. Moore, 30 Colo. 307, 70 Pac. 682; Mallett v. Kaehler, 141 HI. 70, 30 N. E. 549; Meni v. Rathbone, 21 Ind. 454; Crooks V. Jenkins, 124 Iowa, 317, 104 Am. St. Eep. 326, 100 N. W. 82; Howatt v. Green, 139 Mich. 289, 102 N. W. 734; Northwestern Land Co. v. Dewey, 58 Minn. 359, 59 N. W. 1085; Ward v. Metropol- itan Elev. E. Co. 82 Hun, 545, 31 N. Y. Supp. 527, affirmed in 152 N. Y. 39, 46 N. E. 319; Cornell v. Maltby, 165 N. Y. 557, 59 N. E. 291; Tankard v. Tankard, 79 N. C. 54; Petrain v. Kiernan, 23 Or. 455, 32 Pac. 158; Jamison v. Dimoclc, 95 Pa. 52; Betts v. Letcher, 1 S. D. 182, 46 N. W. 193; Orr v. Clarlc, 62 Vt. 136, 19 Atl. 929. 3 May V. Sturdivant, 75 Iowa, 116, 9 Am. St. Eep. 463, 39 N. W. 221; Wrede v. Cloud, 52 Iowa, 371, 3 N. W. 400; Hafter v. Strange, 65 Miss. 323, 7 Am. St. Eep. 659, 3 So. 190; Price v. Gray, — N. J. Eq. — , 34 Atl. 678.; Jaques v. Weeks, 7 Watts, 261; Plumer v. Rob- ertson, 6 Serg. & R. 179; Kilgore v. Graves, 2 Tex. App. Civ. Cas. (^^'illson) 354; Hamilton v. Ingram, 13 Tex. Civ. App. 604, 35 S. W. 748. e. Bequisites and sufficiency of possession. — The character of possession which is sufficient to put a person upon inquiry, and which will be equivalent to actual notice of the rights or equities of persons other than those having a record title, must be actual, open, notorious, and visible, and must be distinct, and not equivocal, occasional, or for a special or temporary purpose.'' The possession should be inconsistent with the title upon which a subsequent purchaser or encumbrancer relies,^ and it should also be exclusive,* and existing at the time of the pur- chase.* But it need not be of every part of the land, in order to NOTICE. 729 constitute notice of the possessor's rights both legal and equi- table ; ° as a general rule, actual possession of a part of a tract is notice of the claim of the possessor to the whole.* 1 Brown v. Volkeniiig, 64 N. Y. 76; Holland v. Brown, 140 N. Y. 344, 34 N. E. 577; Wells v. American Mortg. Co. 109 Ala. 430, 20 So. 136; Havens v. Dale, 18 Cal. 359; Hayward v. Mayse, 1 App. D. C. 133; Tate V. Pensaeola Gulf, Land & Development Co. 37 Fla. 439, 53 Am St. Rep. 251, 20 So. 542; Truesdale v. Ford, 37 HI. 210; Tillotson v. Mitchell, 111 HI. 518; Holcroft v. Hunter, 3 Blackf. 152; Elliot v. Lane, 82 Iowa, 484, 31 Am. St. Rep. 504, 48 N. W. 720; Greer v. Higgins, 20 Kan. 420; Gordon v. Sizer, 39 Miss. 805; Atwood v. Bearss, 47 Mich. 72, 10 N. W. 112; Masterson v. West End Narrow Gauge R. Co. 5 Mo. App. 64, affirmed in 72 Mo. 342; Bell v. Twilight, 22 N. H. 500; Patten v. Moore, 32 N. H. 382; Rankin v. Coar, 46 N. J. Eq. 566, 11 L.R.A. 661, 22 Atl. 177; Boat v. Setzer, 87 N. C. 187; Farm- ers' & M. Nat. Bank v. Wallace, 45 Ohio St. 152, 12 N. E. 439 ; Martin V. Jackson, 27 Pa. 504, 67 Am. Dee. 489; Billington v. Welsh, 5 Binn. 129, 6 Am. Dec. 406; Betts v. Letcher, 1 S. D. 182, 46 N. W. 193; Blankenship v. Douglas, 26 Tex. 225, 82 Am. Dec. 608 ; Ely v. Wilcox, 20 Wis. 524, 91 Am. Dee. 436; Townsend v. Little, 109 U. S. 510, 27 L. ed. 1014, 3 Sup. Ct. Rep. 357. 2 Staples v. Fenton, 5 Hun, 172 ; Pope v. Allen, 90 N. Y. 298 ; Munn v. Achey, 110 Ala. 6'28, 18 So. 299; Havens v. Dale, 18 Cal. 359; Schu- macher V. Truman, 134 Cal. 430, 66 Pac. 591; Martin v. Thomas, 56 W. Va. 220, 49 S. E. 118. swells v. American Mortg. Co. 109 Ala. 430, 20 So. 136; Taylor v. Central P. R. Go. 67 Cal. 615, 8 Pac. 438 ; Mason v. Mullahy, 145 111. 383, 34 N. E. 36 ; Elliott v. Lane, 82 Iowa, 484, 31 Am. St. Rep. 504, 48 N. W. 720; Greer v. Higgins, 20 Kan. 420; Ramirez v. Smith, — Tex. Civ. App. — , 56 S. W. 254; Boyce v. M'Culloch, 3 Watts & S. 429, 39 Am. Dec. 35; Farmers' & M. Nat. Bank v. Wallace, 45 Ohio St. 152, 12 N. E. 439. 4 Bingham v. Kirkland, 34 N. J. Eq. 229; Finch v. Beal, 68 Ga. 594; Rous- sain v. Norton, 53 Minn. 560, 55 N. W. 747; Patterson v. Mills, 121 N. C. 258, 28 S. E. 368; Stiffler v. Retzlaflf, 7 Sadler (Pa.) 232, 20 W. N. C. 303, 11 Atl. 876; O'Neal v. Prestwood, 153 Ala. 443, 45 So. 251; White v. White, 105 111. 313; New York Life Ins. & T. Co. v. Cutler, 3 Sandf. Ch. 176. 5 Boyer v. Chandler, 160 111. 394, 32 L.R.A. 113, 43 N. E. 803. 6 Ramirez v. Smith, 94 Tex. 184, 59 S. W. 258, reversing — Tex. Civ. App. — , 56 S. W. 254; Watson v. Mancill, 76 Ala. 600; Small v. Stagg, 95 111. 39; Watters v. Connelly, 59 Iowa, 217, 13 N. W. 82; Bryant v. Main, 25 Ky. L. Rep. 1242, 77 S. W. 680; Calvin v. Shaw, 79 Hun 56, 29 N. Y. Supp. 644. 730 BRIEF ON FACTS. /. Possession of tenant as notice. — The rule would seem to be Tiniversal that the occupation by a tenant of lands is notice to subsequent purchasers and encumbrancers of his rights as such,^ and the rule of the English authorities/ and apparently of a majority of the American courts,^ is that the possession of a tenant is notice not only of his interest as tenant, but also of the whole actual interest he may have therein. As to the effect of possession of a tenant as notice of the landlord's interest, the rule in England has been stated to be that the possession of a tenant is notice simply of his tenancy, or of the interest claimed by the actual occupant,* and that such possession is not notice ■of the title of the lessor.* Some of the American cases have followed the English rule,® but the majority of American courts have adopted the rule that the possession of a tenant is the pos- session of his landlord, and that notice of the former is notice of the latter.' iHunt V. Luck [1901] 1 Ch. 45, 70 L. J. Ch. N. S. 30, 49 Week. Eep. 155, 83 L. T. N. S. 479, 17 Times L. R. 3; Bailey v. Richardson, 15 Eng. L. & Eq. Eep. 218 ; Hamilton v. Lyster, 7 Ir. Eq. Rep. 560 ; Greenwood V. Bairatow, 5 L. J. Ch. N. S. 179 ; Hull v. Noble, 40 Me. 459 ; Bost v. Setzer, 87 N. C. 187; Hottenstein v. Lerch, 104 Pa. 454; Flagg v. Mann, 2 Sumn. 486, Fed. Cas. No. 4,847; Baldwin v. Johnson, 1 N. J. Eq. 441; James v. Morey, 2 Cow. 246, 14 Am. Dec. 475; Howell v. Denton, — Tex. Civ. App. — , 68 S. W. 1002 ; Disbrow v. Jones, Harr. Ch. (Mich.) 49; Williams v. Brown, 14 111. 200; Lafferty v. Schuyl- kill River East Side E. Co. 124 Pa. 297, 3 L.R.A. 124, 10 Am. St. Rep. 587, 16 Atl. 869. ^ Allen V. Anthony, 1 Meriv. 282, 15 Revised Rep. 113; Daniels v. Davison, 16 Ves. Jr. 249, 10 Revised Rep. 171; Hunt v. Luck [1901] 1 Ch. 45, 70 L. J. Ch. N. S. 30, 49 Week. Rep. 155, 83 L. T. N. S. 479, 17 Times L. R. 3; Barnhart v. Greenshields, 9 Moore, P. C. C. 18, 28 Eng. L. & Eq. Rep. 77. J Russell V. Moore, 3 Met. (Ky.) 436; Hull v. Noble, 40 Me. 459; Disbrow V. Jones, Harr. Ch. (Mich.) 48; Chesterman v. Gardner, 5 Johns. Ch. 29, 9 Am. Dec. 265; Crooks v. Jenkins, 124 Iowa, 317, 104 Am. St. Rep. 326, 100 N. W. 82 ; Brewer v. Brewer, 19 Ala. 481 ; Coari v. Olsen, 91 111. 273; Smith v. Gibson, 25 Neb. 511, 41 N. W. 360; Baldwin v. Johnson, 1 N. J. Eq. 441. But the possession of lands by a tenant is not constructive notice to a pur- chaser of a claim wholly inconsistent with his tenancy. Smith v. Miller, 63 Tex. 72. ■•Brunson v. Brooks, 68 Ala. 248. IJOTICE. Y31 5 Hunt 1. Luck [1901] 1 Ch. 45, 70 L. J. Ch. N. S. 30, 49 Week. Rep. 155, 83 L. T. N. S. 479, 17 Times L. K. 3. « Smith V. Dall, 13 Cal. 510; Vaughn v. Tracy, 22 Mo. 415, 65 Am. Dec. 471; Beatie v. Butler, 21 Mo. 313, 64 Am. Dec. 234; Flagg v. Mann, 2 Sumn. 486, Fed. Gas. No. 4,847. 'Brunson v. Brooks, 08 Ala. 248; Vaiidiveer v. Sticlcney, 75 Ala. 225; Landers v. Bolton, 26 Cal. 393; Morrison v. Kelly, 22 111. 610, 74 Am. Dec. 169; Haworth v. Taylor, 108 111. 275; Dickey v. Lyon, 19 Iowa, 544; O'Neill v. Wilcox, 115 Iowa, 15, 87 N. W. 742; Deetjen v. Ricliter, 33 Kan. 410, 6 Pac. 595; Hanly v. Morse, 32 Me. 287; Wolf v. Zabel, 44 Minn. 90, 46 N. W. 81; Wilkins v. Bevier, 43 Minn. 213, 19 Am. St. Eep. 238, 45 N. W. 157; Bratton v. Rogers, 62 Miss. 281; Conlee V. McDowell, 15 Neb. 184, 18 N. W. 60; Wanner v. Sisson, 29 N. J. Eq. 141; Edwards v. Thompson, 71 N. C. 177; Randall v. Lingwall, 43 Or. 383, 73 Pac. 1; Hottenstein v. Lerch, 104 Pa. 454; Lance v, Gor- man, 136 Pa. 200, 20 Am. St. Rep. 914, 20 Atl. 792; McGamant v. Roberts, 80 Tex. 316, 15 S. W. 580, 1054; Wickes v. Lake, 25 Wis. 71 ; Edwards v. Wray, 11 Biss. 251, 12 Fed. 45; United States v. Slincy, 21 Fed. 894; Storthz v. Chapline, 71 Ark. 31, 70 S. W. 405. g. Possession under contract of purchase. — The rule is gen- eral if not universal, that the open, notorious, exclusive, and un- equivocal possession of land under a parol or an unrecorded con- tract for the purchase thereof, or under an unrecorded bond for title, is constructive notice to subsequent purchasers or encum- brancers, and to everyone, of the possessor's interest therein, and of the character and extent of his claim.^ Or at least such possession of a purchaser of land under an unrecorded contract therefor is sufficient to put all persons upon inquiry as to his right; and they are chargeable with that knowledge of the vendor's title which they would obtain by such inquiry.^ 1 Brewer v. Brewer, 19 Ala. 481; Hamilton v. Fowlkes, 10 Ark. 340; Mc- Rae V. McMinn, 17 Fla. 876; Burr v. Toomer, 103 Ga. 159, 29 S. E. 692; Doolittle v. Cook, 75 111. 354; Harris v. Mclntyre, 118 111. 275, 8 N. E. 182; Barnes v. Union School Twp. 91 Ind. 301; Everts v. Rose Grove, 77 Iowa, 37, 14 Am. St. Rep. 264, 41 N. W. 478; Hart v. Bleight, 3 T. B. Hon. 273; Goins v. Allen, 4 Bush, 608; Corey v. Smalley, 106 Mich. 257, 58 Am. St. Rep. 474, 64 N. W. 13; Taylor v. Lowenstein, 50 Miss. 278; Lipp v. Hunt, 25 Neb. 91, 41 N. W. 143; Marston v. Osgood, 69 N. H. 96, 38 Atl. 378; Pennsylvania R. Co. v. United States Pipe-Line Co. — N. J. Eq. — , 33 Atl. 809; Moyer v. Hinman, 13 N. Y. 180; Union College v. Wheeler, 61 N. Y. 88; Jaeger ■V. Hardy, 48 Ohio St. 335, 27 N. E. 863; Kerr v. Day, 14 Pa. 112, 732 BEIEF ON FACTS. 53 Am. Dec. 526; James v. Drake, 39 Tex. 145; lllpley v. Yale, 18 Vt. 220; Chapman v. Chapman, 91 Va. 397, 50 Am. St. Rep. 846, 21 S. E. 813; Nultall v. McVey, 63 W. Va. 380, 60 S. E. 251; School Dist. No. 3 V. Macloon, 4 Wis. 79; Honzik v. Delaglise, 65 Wis. 494, 56 Am. Rep. 634, 27 N. W. 171 ; Holmes v. Powell, 8 DeG. M. & G. 572. 2Coe V. Manseau, 62 Wis. 81, 22 N. W. 155; Moss v. Atkinson, 44 Cal. 3; Hardy v. Summers, 10 Gill & .L. 316, 32 Am. Dec. 167; Baynard v. Norris, 5 Gill, 468, 46 Am. Dec. 647 ; Bell v. Flaherty, 45 Miss. 694. li. Possession of vendee under unrecorded deed. — The gen- oral -and common-law rule is that the possession of a vendee un- der an unrecorded deed, who is in open, exclusive, and notorious occupancy of real estate, claiming it as his own, is constructive notice of his title, to subsequent purchasers or encumbrancers, and to the world.* But the more restricted rule as announced by many of the more modern and best-considered cases is that the possession of a purchaser of real estate under an unrecorded deed is notice to the world that he has some claim, which puts a purchaser upon inquiry and protects the possessor.^ Statutes with reference to the registration of deeds and other instruments affecting title to land have to some extent broken in upon and altered the doctrine of possession as notice of an unrecorded deed under which it is held.' And the rule that open, notorious, and exclusive possession by a vendee holding under an unre- corded deed- is notice of the vendee's title, whether it is legal or equitable, does not apply where the possession of the vendor and vendee was joint at the time of the sale. In such case the joint possession does not operate as constructive notice of an unreg- istered deed.* iBrunson v. Brooks, 68 Ala. 248; Strickland v. Nance, 19 Ala. 233; Part- ridge V. McKinney, 10 Cal. 181, 1 Mor. Min. Rep. 185; Massey v. Hub- hard, 18 Fla. 688 ; Atkins v. Paul, 67 Ga. 97 ; Cabeen v. Breckenridge, 48 111. 91; Simmons v. Church, 31 Iowa, 284; Matthews v. Demerritt, 22 Me. 312; Atwood v. Bearss, 47 Mich. 72, 10 N. W. 112; Jones v. Brenizer, 70 Minn. 525, 73 N. W. 255; Stovall v. Judah, 74 Miss. 747, 21 So. 614; Colby v. Kenniston, 4 N. H. 262; Coleman v. Barklew, 27 N. J. L. 357; Eaynor v. Timerson, 46 Barb. 518; Frear v. Sweet, 118 N. Y. 454, 23 N. E. 910; Tate ?. Clement, 176 Pa. 550, 35 Atl. 214; Rhine v. Hodge, 1 Tex. Civ. App. 371, 21 S. W. 140; Griswold v. Smith, 10 Vt. 454; Nuttall v. McVey, 63 W. Va. 380, 60 S. E. 337; Roberts v. Decker, 120 Wis. 102, 97 N. W. 519; Henderson v. Wana- maker, 25 C. C. A. 181, 49 U. S. App. 174, 79 Fed. 736. NOTICE, 733 2 Mitchell V. Metropolitan Elev. R. Co. 56 Hun, 543, 9 N. Y. Supp. 829, affirmed in 134 N. Y. 11, 31 N. E. 260; Ward v. Metropolitan Elev. R. Co. 82 Hun, 545, 31 N. Y. Supp. 527, affirmed in 152 N. Y. 39, 46 N. E. 319; Rankin Mfg. Co. v. Bishop, 137 Ala. 271, 34 So. 991; Byers v. Engles, 16 Ark. 543; McLaughlin v. Shepherd, 32 Me. 143, 52 Am. Dec. 646; Perkins v. Swank, 43 Miss. 349; Stewart v. Mc- Sweeney, 14 Wis. 469. 3 See, as to effect of registration acts in various states : Quinnerly v. Quinnerly, 114 N. C. 145, 19 S. E. 99; Maddox v. Arp, 114 N. C. 585, 19 S. E. 665 ; Hooker v. Nichols, 116 N. C. 157, 21 S. E. 207 ; Moore v. Jourdan, 14 La. Ann. 417; Dooley v. Woleott, 4 Allen, 406; M'Mechan v. Griffing, 3 Pick. 156, 15 Am. Dec. 198. * McCarthy v. Nicrosi, 72 Ala. 332, 47 Am. Rep. 418 ; O'Neal v. Prestwood, 153 Ala. 443, 45 So. 251 ; Butler v. Stevens, 26 Me. 484. i. Grantor's possession after conveyance. — Some of the cases apply the general rule that possession of land is notice of the right and title of the possessor, to a retention of possession by a vendor after conveyance, holding that, vi^here a grantor of real estate remains in possession thereof after the execution of the deed, a purchaser from the grantee is charged with notice of the right, title, or interest of such occupant.^ Probably a majority of the cases, however, have taken the position that the possession of a vendor after conveyance is not inconsistent with the title which he has conveyed, and that, therefore, one of the elements of constructive notice is lacking.' 1 Smith V. Myers, 56 Neb. 503, 76 N. W. 1084; Shiff v. Andress, 147 Ala. 690, 40 So. 824; Illinois C. R. Co. v. McCullough, 59 111. 166; Ronan v. Bluhm, 173 111. 277, 50 N. E. 694; Griffin v. Haskins, 22 111. App. 264 ; Bumpas v. Zachary, — Tex. Civ. App. — , 34 S. W. 672. 2 Van Keuren v. Central R. Co. 38 N. J. L. 165; Groton Sav. Bank v. Batty, 30 N. J. Eq. 127 ; Galford v. Gillett, 55 111. App. 576 ; Sprague v. White, 73 Iowa, 670, 35 N. W. 751; May v. Sturdivant, 75 Iowa, 116, 9 Am. St. Rep. 463, 39 N. W. 221; McNeil v. Jordan, 28 Kan. 7; Hockman v. Thuma, 68 Kan. 519, 75 Pac. 486; Kerr v. Kingsbury, 39 Mich. 150, 33 Am. Rep. 362; Hafter v. Strange, 65 Miss. 323, 7 Am. St. Rep. 659, 3 So. 190; Brophy Min. Co. v. Brophy & D. Gold & S. Min. Co. 15 Nev. 101, 10 Mor. Min. Rep. 601; Red River Valley Land & Invest. Co. v. Smith, 7 N. D. 236, 74 N. W. 194; Forsha v. Long- worth, 1 Ohio C. C. 271, 1 Ohio C. D. 149, affirmed in 22 Ohio L. J. 354; Exon v. Dancke, 24 Or. 110, 32 Pac. 1045; Smith v. , Phillips, 9 Okla. 297, 60 Pac. 117; Curry v. Williams, — Tenn. — , 38 S. W. 278; Love V. Breedlove, 75 Tex. 649, 13 S. W. 222 ; Eylar v. Eylar, 60 Tex. 315. 734 BEIEF ON FACTS. The legal presumption is that such possession is with the permission of the grantee, and subordinate to, and consistent with, the grant. Jeffer- sonville, M. & I. R. Co. v. Oyler, 82 Ind. 394; Dodge v. Davis, 85 Iowa, 77, 52 N. W. 2; Humphrey v. Hurd, 29 Mich. 44; Brigham v. Thompson, 12 Tex. Civ. App. 562, 34 S. W. 358. j. Mortgagee or lienor in possession. — The rule that posses- sion of land is notice to subsequent purchasers or encumbrancers of the possessor's title applies to possession held under an un- recorded mortgage.^ An immediate and continuous change of possession of lands into the hands of a' mortgagee thereof is the best possible notice of his rights as against all others.^ It has been held, however, that, though it may not be usual, it is not inconsistent with a mortgage, that the mortgagee should be let into possession in order to keep down the interest by receipt of profits, and the application of the surplus, if any, toward the discharge of the principal ; and that such possession is not notice of a claim of title inconsistent with the record title.* 1 Brainard v. Hudson, 103 111. 218 ; Rodriguez v. Haynes, 76 Tex. 225, 13 S. W. 296; Peterson v. Philadelphia Mortg. & T. Co. 33 Wash. 464, 74 Pac. 585 ; Edwards v. Wray, 11 Biss. 2S1, 12 Fed. 42. 2 Parsell v. Thayer, 39 Mich. 467. 3 Plumer v. Robertson, 6 Serg. & R. 179. k. Possession of cestui que trust. — Where the legal title to lands is in a trustee, actual possession thereof by a cestui que trust is notice to a purchaser from the trustee that there is some claim, title, or possession of the property adverse to the vendor.^ So, a conveyance of land by a trustee will not devest the interest of the beneficiary of the trust estate, when a tenant of the bene- ficiary was in possession at the time of the conveyance.* 1 Johns v. Norris, 27 N. J. Eq. 485; First Nat. Bank v. Kurtz, 22 111. App. 213; Truth Lodge No. 213, A. F. & A. M. v. Barton, 119 Iowa, 230, 97 Am. St. Rep. 303, 93 N. W. 106 ; Retrain v. Kiernan, 23 Or. 455, 32 Pac. 158; Pritchard v. Brown, 4 N. H. 397, 17 Am. Dec. 431; Hawley V. Geer, — Tex — , 17 S. W. 914; Hackett v. Callender, 32 Vt. 97. Where a father gave land to his son and put him in possession, and the son fulfilled the conditions precedent attaching to the gift, and, by im- provements thereon, acquired the equitable title to it, a court of equity will regard the father as trustee for the son; and the possession of the NOTICE. 735 son, of itself, conveys notice to the world of his equitable title, and of his right to the legal title. Frame v. Frame, 32 W. Va. 463, 5 L.R.A. 323, 9 S. E. 901. 2 Bowman v. Anderson, 82 Iowa, 210, 31 Am. St. Rep. 473, 47 N. W. 1087. I. Possession by cotenants. — Possession of a tenant in com- mon of land who has the exclusive right to possession as against all the world but his co tenant is notice of his own title.* But the rule has been adopted by many of the cases that a tenant in common in possession is presumed to be in under his own title, and not under the right of his cotenant, and his possession, there- fore, is notice only of his own title.* And sole possession of one tenant in common is not presumed to be adverse to a cotenant ; the ordinary presumption is that such possession is held in the right of both,* and the cotenant out of possession is not informed by such possession that it has any adverse character.* Nor is. possession by two or three cotenants notice of the claim of the third who holds under an unrecorded deed.* Possession of land by a firm for partnership purposes, at a time when advances were made to one of the partners, who held the legal title, to secure which he afterwards executed a conveyance of the lot, or a mort- gage thereon, was notice to the world of the equitable rights of the firm.® 1 Wilcox V. Leominster Nat. Bank, 43 Minn. 541, 19 Am. St. Rep. 259, 45 N. W. 1136; Kirkham v. Moore, 30 Ind. App. 549, 65 N. E. 1042; Seawell v. Young, 77 Ark. 309, 91 S. W. 544. 8 Wilcox V. Leominster Nat. Bank, 43 Minn. 54], 19 Am. St. Rep. 259, 45 N. W. 1136; Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100. 3 Buckmaster v. Needham, 22 Vt. 617. ♦ Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100. BMcBane v. Wilson (C. C. W. D. Pa.) 8 Fed. 734. 6 Bergeron v. Richardott, 55 Wis. 129, 12 N. W. 384; Reeves v. Ayers, 38 111. 418. m. Possession hy husband and wife. — Where husband and wife are in joint possession, there is a presumption that the pos- session is that of the husband, and one desiring to purchase the land, or acquire any interest therein, is pointed by this presump- tion to the husband as the person from whom inquiry should be made as to the actual state of the title.'' It is a general rule, however, that possession by husband and wife together will im- 736 BEIEF ON FACTS. part notice of the wife's equity as against all persons other than thosfl claiming under the husband, their possession being re- garded as joint by reason of the family relation.^ Possession of the husband alone is generally referred to his representative capacity, and must be considered the possession of his wife when it relates to her separate estate, and is therefore considered as notice of her right.' And a wife's possession of property ac- quired and held by her while living with her husband, as respects notice to purchasers, has the same effect as is allowed to a pos- session by the husband of his own property, and, in the absence of a recorded title in her husband, inconsistent with such posses- sion by her, is sufficient to put a purchaser on inquiry.* So, where a husband and wife separate, and the wife is in posses- sion of real estate, claiming to own it, her possession is sufficient to put a purchaser thereof from the husband upon inquiry with reference to her rights.^ But a polygamous wife occupying premises of her so-called husband, who is the apparent owner thereof, does not have such possession of the property as will give constructive notice to a bona fide purchaser of any claim she may have thereto by virtue of a secret agreement with the rec- ord owner.^ Possession by a husband with his wife, of home- stead property, he being the head of the family, is presumptive- ly his possession; and the creditor of the wife is chargeable with constructive notice of its homestead character.'' So, where a wife lived with her husband on land which they had occupied under a certificate of purchase from the state, which certificate the husband has assigned, without her concurrence, to another person, who obtained a patent to the land and mortgaged it, the mortgagee is chargeable with notice of the wife's homestead rights, and cannot be regarded as bona fide purchaser.' 1 Austin V. Southern Home Bldg. & L. Asso. 122 Ga. 440, 50 S. E. 382. z Iowa Loan & T. Co. v. King, 58 Iowa, 598, 12 N. W. 595 ; Humphrey v. Moore, 17 Iowa, 193; Walker v. Neil, 117 Ga. 733, 45 S. B. 387; Kirby V. Tallmadge, 160 U. S. 379, 40 L. ed. 463, 16 Sup. Ct. Rep. 349. The doctrine has been asserted, however, that when husband and wife live together upon land, and the husband exercises control over it, the possession is presumptively in him as the head of the family; and such joint residence is not, alone, sufficient to give notice of any claim of interest in the land by the wife. Garrard v. Hull, 92 Ga. 787, 20 S. E. 357; Neal v. Perkerson, 61 Ga. 346. NOTICE. 731 SBrunson v. Brooks, 68 Ala. 248; Butler v. Thweatt, 119 Ala. 325, 24 So. 545. And it will prevent the attachment of a lien of an execution against the husband. Brunson v. Brooks, 68 Ala. 248. And no act of purchase or renting by tlie husband from a third person, in which she did not participate, will oust her from such posses- sion. Butler V. Thweatt, 119 Ala. 325, 24 So. 545. ■4 Brown v. Carey, 149 Pa. 134, 23 Atl. 1103. 6 Allen V. Moore, 30 Colo. 307, 70 Pae. 682. 6 Townsend v. Little, 109 U. S. 510, 27 L. ed. 1014, 3 Sup. Ct. Eep. 357. 7 Broome v. Davis, 87 Ga. 584, 13 S. B. 749. 8 Allen V. Cadwell, 55 Mich. 8, 20 N. W. 692. n. Other family relations as affecting possession. — Where minor children reside with their father, who is in possession of land to which he has the legal title, his children's residence on the land is not sufficient to put a purchaser from the father upon notice or inquiry as to any secret equity which the chil- dren may have in such land.* So, where, during the lifetime of the owner of land, his son, with his family, resided with him on the land, and, after the death of the father, the son continued to reside there, the possession of the son was not notice of any claim he might have by verbal agreement between him and his father, as against a purchaser in good faith and for value from another child who was the heir of the father.^ And where a mother and daughter occupied property, and together kept boarders in the house, and both worked about the house, there being nothing to indicate to an outsider who the mistress of the house as a residence was, the possession of the daughter was -equivocal, and did not constitute notice to a subsequent mortga- gee, of an unrecorded deed to her, or of title to the property.' The joint possession of land by the Avidow and children of the de- ceased owner thereof, however, is constructive notice to a pur- chaser from the widow, who holds the legal title, of the rights of the children as well as of the deceased owner.* IGoodwynne v. Bellerby, 116 Ga. 901, 43 S. E. 275; Nagelspach v. Shaw, 146 Mich. 493, 109 N. W. 843, 111 N. W. 343; Baldwin v. Golde, 88 Hun, 115, 34 N. Y. Supp. 587. a Stone V. Cook, 79 111. 424. 3 Powell V. Jenkins, 14 Misc. 83, 35 N. Y. Supp. 265. -4 Jackson v. McFadden, 4 W. N. C. 539. Abb. Facts — 47. 138 BRIEF ON FACTS. 0. Application of rules to easements. — The general rule is that possession of easements in lands is notice to all the world of a claim of the possessor in respect thereto,^ and purchasers of real estate are chargeable with notice of an evidence of servi- tude existing thereon,^ and they take subject to the burden of the easement.' The occupation of an easement in land adjacent, which has been conveyed without a reservation, is inconsistent with the grant, and is notice to a purchaser from the grantee in such deed of a parol reservation of the easement* Easements capable of physical examination are embraced within the record- ing acts, and subject to the same law of notice, by possession or otherwise, as conveyances of a fee.° 1 Mitchell T. Metropolitan Elev. R. Co. 56 Hun, 543, 9 N. Y. Supp. 829, affirmed in 134 N. Y. 11, 31 N. E. 260; Munson v. Eeid, 46 Hun, 399; Robinson v. Thrailkill, 110 Ind. 117, 10 N. E. 647; Pyer v. Carter, 1 Hurlst. & N. 916, 26 L. J. Exch. N. S. 258, 5 Week. Rep. 371; Rollo v. Nelson, 34 Utah, 116, 26 L.R.A.(N.S.) 315, 96 Pac. 263; Rock Island & P. R. Co. V. Dimiek, 144 111. 628, 19 L.R.A. 105, 32 N. E. 291; Case y. HoflFman, 100 Wis. 314, 44 L.R.A. 728, 72 N. W. 390, 74 N. W. 220, 75 N. W. 945. 2 Pierce v. Cleland, 133 Pa. 189, 7 L.R.A. 752, 19 Atl. 352. 3 De Luze v. Bradbury, 25 N. J. Eq. 70. 4 Randall v. Silverthorn, 4 Pa. 173. 5 Ward V. Metropolitan Elev. R. Co. 82 Hun, 545, 31 N. Y. Supp. 527, af- firmed in 152 N. Y. 39, 46 N. E. 319. p. Estoppel of possessor to assert claim. — A person in posses- sion of land may, by his own acts, devest his possession of those attributes which cause it to put purchasers upon inquiry.'' The possessor must refrain from all acts calculated to produce a false impression as to the state of the title, in order to hold a person dealing with the owner of the record title to the duty of inquiring with respect to the interest of the occupant.^ And a person having title to land, who stands by silent when he should assert his claim, thus inducing a purchaser to believe that he has none, is estopped after^vards to assert it.' So, he may be estopped from asserting his claim by refusing informa- tion as to his rights when asked in regard thereto by an intend- ing purchaser.* And the surrender of possession, relied upon as notice of a claim of right or title, is an abandonment of the NOTICE. 739 claim.* A person in possession of land, however, may rest upon notice of his equities, given to all the world by his posses- sion ; and, hearing of an intended purchase thereof, or mortgage thereon, he is not obliged to seek out the purchaser or mort- gagee, and warn him against taking it.* And a possessor claim- ing an equitable title is not estopped from asserting it by an acknowledgment of tenancy, obtained by misrepresentations on the part of the lessor.'' 1 Smith V. Miller, 63 Tex. 72. 2 Lathrop v. Groton Sav. Bank, 31 N. J. Eq. 273. 3 Bramble v. Kingsbury, 39 Ark. 131. 4 Riley v. Quigley, 50 111. 304, 99 Am. Dec. 516; Yates v. Hurd, 8 Colo. 343, 8 Pae. 575; Trumpower v. Mareey, 92 Mich. 529, 52 N. W. 999. 5 Campbell v. Brackenridge, 8 Blackf . 471 ; Ehle v. Brown, 31 Wis. 405. Where a person held lands for some years, claiming under a parol pur- chase from the record owner, and, when he learned that the record owner had conveyed the lands to another, took a lease from the lat- ter and renounced his claim to the lands, his possession was that of a tenant or lessee, and was not notice to a subsequent purchaser of his original claim under the parol purchase. Smith v. Miller, 63 Tex. 72; s. i:. 66 Tex. 74, 17 S. W. 399. And the effect of such acts as a waiver of the possessor's right to assert his title is not affected, so far as the question of notice is concerned, by the fact that he took the leases by mistake, in ignorance of his right. Ibid. 6 Jowers V. Phelps, 33 Ark. 465; Bramble v. Kingsbury, 39 Ark. 131. TWhitsett V. Miller, 1 Posey, Unrep. Cas. (Tex.) 203. For an elaborate note on the question of possession of land as notice of title, with a review of all the authorities, see 13 L.E.A. ( N.S. ) 49 3. Notice to charge with fraud. It is now settled that the rule that facts sufficient to put a party on inquiry, coupled with failure to exercise due diligence in making inquiry, charge the party with notice as matter of law, only applies for the protection of some actual outstanding title, lien, equitable interest, or trust constituting a special equity. It does not apply in the case of one claiming under a fraudulent conveyance who is in fact innocent of any guilty knowledge or actual suspicion.^ 1 Parker v. Connor, 93 N. Y. 119, 45 Am. Rep. 178, and cases cited. 740 EBIEF ON FACTS. 4. Notice to agent. a^ In general. — The rule that a principal is chargeable with knowledge of facts communicated to, or acquired by, his agent in the course of transactions in which the agent represented the principal, unless the communication of such fact to the prin- cipal by the agent would involve a positive breach of duty is well established in both England and America.* And this rule applies in the case of a continuous agency involving a long se- ries of transactions of the same general character ; to knowledge acquired by the agent in any of such transactions so as to affect the principal in any later transaction in which the agent as such is engaged and in which the knowledge is material.^ It is well settled, however, that notice to an agent, in order to bind the principal, must relate to the business or transactions in refer- ence to which the agent is authorized to act for and on behalf of his principal and to matters over which his authority ex- tends. If it relates to a matter over which the agent has no authority and concerning which he is not authorized to act for his principal, although he may be an agent for other purposes, it would not affect the principal or be binding on him.' 1 See articles (and cases collected) in 13 Week. L. Bui. 182; Story, Agency, 9tli ed. § 140; Bank of Pittsburgh v. Whitehead, 36 Am. Dec. 188, 200, and note ( 10 Watts, 397 ) ; Wade, Notice, 2d ed. § 687 ; Slattery V. Schwannecke, 44 Hun, 83, and cases cited; Henry v. Allen, 151 N. Y. 1, 36 L.B,.A. 658, 45 N. E. 355; Bollard v. Roberts, 130 N. Y. 269, 14 L.R.A. 238, 29 N. E. 104; Jenkins Bros. Shoe Co. v. Eenfrow, 151 N. C. 323, 25 L.R.A.(N.S.) 231, 66 S. E. 212; McCormick Har- vesting Mach. Co. V. Zakzewski, 220 111. 522, 4 L.R.A.(N.S.) 848, 77 N. E. 147; Humphreys v. National Ben. Asso. 139 Pa. 264, 11 L.R.A. 564, 20 Atl. 1047; Hicks v. American Natural Gas Co. 207 Pa. 570, 65 L.E.A. 209, 47 Atl. 55; Distilled Spirits (Harrington v. United States) 11 Wall. 356, 20 L. ed. 167; and notes in 1 L.R.A. 217 ; 1 L.R.A. 563; 2 L.R.A. 734; 10 L.R.A. 705; and 24 Am. St. Rep. 228. The failure of an agent to communicate to his principal information ac- quired by him in the course and within the scope of his agency is a breach of duty to his principal, but the notice has the same effect as to third persons as though his duty had been faithfully performed. Cox V. Pearee, 112 N. Y. 637, 3 L.R.A. 563, 20 N. E. 566. For the cases on the question of notice to traveling salesman as notice to his employer, see note in 25 L.R.A. (N.S.) 231. NOTICE. 741 8 Holden v. New York & E. Bank, 72 N. Y. 286. For the application of the principle to the relation of attorney and client, see Saffron-Walden Bldg. Second Ben. Soc. v. Rayner, L. R. 14 Ch. Div. 406, 43 L. T. N. S. 3 (holding that the successive retainers are not a continuous employment within the rule) ; Hulbert v. Douglas, 94 N. C. 122; Carter V. Ottawa, 24 Fed. 546 (knowledge of attorney who acted both for buyer and seller of security) ; McCormick v. Joseph, 83 Ala. 401, 3 So. 796. SMechem, Agency, § 725; Pennoyer v. Willis, 26 Or. 1, 46 Am. St. Rep. 594, 36 Pac. 568; Roach v. Karr, 18 Kan. 529, 26 Am. Rep. 788; Congar V. Chicago & N. W. E. Co. 24 Wis. 157, 1 Am. Rep. 164; Mechaincs' Bank v. Schaumburg, 38 Mo. 228 ; United Firemen's Ins. Co. v. Thomas, 47 L.R.A. 455, 34 C. C. A. 240, 92 Fed. 127; Jacksonville, T. & K. W. R. Co. V. Peninsular Land, Transp. & Mfg. Co. 27 Fla. 1, 157, 17 L.R.A. 33, 9 So. 661, 689. Though an attorney or director of a corporation may be its agent, yet knowledge which such an officer has acquired while acting for himself or for a third person, and not for the corporation, is not imputed to the principal, — especially where such knowledge cannot be communi- cated to the principal without a breach of confidence on the part of the agent. Akers v. Rowan, 33 S. C. 451, 10 L.R.A. 705, 12 S. E. 165. h. Knowledge not acquired in principal's business. — There are two theories in regard to the reason for imputing notice of the agent to the principal. The first theory bases the rule on the legal identity of the principal and agent, on the principle that the agent, while acting within the scope of his authority, is, for the time being, the principal himself. The second theory bases the rule upon the duty of the agent to communicate to his principal the knowledge possessed by him relating to the subject- matter of his agency and material to his principal's protection. The courts which proceed on the first theory hold that only such knowledge as comes to the agent during the agency is binding on the principal, and that the latter is not affected by knowledge acquired prior to the agency, or when the agent is not engaged in the principal's business.' The courts which proceed on the second theory hold that the principal will be charged with the agent's knowledge however and whenever acquired, provided the knowledge is present to the agent's mind at the time of the trans- action in question.* Where it is not the agent's duty to com- municate such knowledge,' or where it would be wrong for him to do so, as, for example, when it has been acquired confidential- 742 BBIES" ON FACTS. ly,* the reason for the rule ceases. Nor does the rule apply- where it is certainly to be expected that the agent will not per- form his duty to communicate his knowledge to the principal.' 1 Houseman v. Girard Mut. BIdg. & L. Asso. 81 Pa. 256; Martin v. Jack- son, 27 Pa. 508, 67 Am. Dec. 489; Hood v. Fahenstock, 8 Watts, 489, 34 Am. Dec. 489; Satterfield v. Malone, 1 L.R.A. 35, 35 Fed. 445; Wheeler v. McGuire, 86 Ala. 398, 2 L.R.A. 808, 5 So. 190; Kaufifman V. Eobey, 60 Tex. 308, 48 Am. Rep. 264; Texas Loan Agency v. Taylor, 88 Tex. 47, 29 S. W. 1057; Howard Ins. Co. v. Halsey, 8 N. Y. 271, 59 Am. Dec. 478. Tn Houseman v. Girard Mut. Bldg. & L. Asso. 81 Pa. 256, the court says that it is a mistake to suppose that the rule depends upon the reason that no man can be supposed always to carry in his mind a recollec- tion of former occurrences, and that if it be proved that he actually had the information in his mind at the time, the rule is different, adding: "It may support the reasonableness of the rule to consider that the memory of man is fallible in the very best and varies in different men, but the true reason of the limitation is a technical one; that it is only during the agency that the agent represents and stands in the shoes of his principal. Notice to him is then notice to his principal. Notice to him twenty-four hours before the relation com- menced is no more notice than twenty-four hours after it had ceased would be." 2 Dresser v. Norwood, 17 C. B. N. S. 466, 34 L. J. C. P. N. S. 48, 10 Jur. N. S. 851, 11 L. T. N. S. Ill, 12 Week. Rep. 1030; RoUand v. Hart, L. R. 6 Ch. 678, 40 L. J. Ch. N. S. 701, 25 L. T. N. S. 191, 19 Week. Rep. 962; Distilled Spirits (Harrington v. United States) 11 Wall. 356, 20 L. ed. 167; German American Mut. Life Asso. v. Farley, 102 Ga. 720, 29 S. E. 615; Yerger v. Barz, 56 Iowa, 77, 8 N. W. 769; Fairfield Sav. Bank v. Chase, 72 Me. 226, 39 Am. Rep. 319; Lebanon Sav. Bank v. Hollenbeck, 29 Minn. 322, 13 N. W. 145; Wilson v. Minnesota Farmers' Mut. F. Ins. Asso. 36 Minn. 112, 1 Am. St. Rep. 659, 30 N. W. 401; Hovey v. Blanchard, 13 N. H. 145; Snyder v. Partridge, 138 111. 173, 32 Am. St. Rep. 130, 29 N. E. 851; Burton v. Perry, 146 111. 71, 34 N. E. 60; Constant v. University of Rochester, 111 N. Y. 604, 2 L.R.A. 734, 7 Am. St. Rep. 769, 19 N. E. 631; Mc- Cutcheon v. Dittman, 164 N. Y. 357, 58 N. E. 97; Shafer v. Phoenix Ins. Co. 53 Wis. 361, 10 N. W. 381; Harriman v. Queen Ins. Co. 49 Wis. 71, 5 N. W. 12; Union Bank v. Campbell, 4 Humph. 396; Hart v. Farmers' & M. Bank, 33 Vt. 252 ; Abell v. Howe, 43 Vt. 403. Not only the knowledge of an agent acquired during the continuance of his agency must be imputed to his principal, but also that acquired or possessed by him so shortly prior to his employment as necessarily to give rise to the inference that it remained fixed in his memory when the employment began. Chouteau v. Allen, 70 Mo. 290. NOTICE. 743 Information obtained by the agent prior to the transaction from which the principal's rights and liabilities arise must be so precise and definite that it must inevitably be present to his mind and memory while engaged in the later transaction; and a remark made to the agent in a casual conversation cannot be said to be present to his mind five years afterward. Burton v. Perry, 146 111. 71, 34 N. E. 60. The notice must be present to the mind of the agent when acting for his principal so fully that it could not have been at the time for- gotten ; and the agent must himself have no personal interest in the matter which would lead him to conceal his knowledge from his prin- cipal, but must Be at liberty to communicate it. Fairfield Sav. Bank V. Chase, 72 Me. 226, 39 Am. Rep. 319. There must be clear proof that the knowledge is present in the agent's mind. Constant v. University of Rochester, 111 N. Y. 604, 2 L.R.A. 734, 7 Am. St. Rep. 769, 19 N. E. 631; Slattery v. Schwanneeke, 118 N. Y. 543, 23 N. E. 922; Equitable Securities Co. v. Sheppard, 78 Miss. 234, 28 So. 842 ; St. Paul F. & M. Ins. Co. v. Parsons, 47 Minn. 352, 50 N. W. 240; Foreman v. German Alliance Ins. Asso. 104 Va. 694, 3 L.R.A.(N.S.) 444, 113 Am. St. Rep. 1071, 52 S. E. 337. The presumption that an agent who has acquired knowledge of certain facts still retains it and has it present to his mind in a later trans- action will depend upon the lapse of time and other circumstances. Distilled Spirits (Harrington v. United States) 11 Wall. 356, 20 L. ed. 167. A statement of the rule somewhat different from that usually found is made in Union Bank v. Campbell, 4 Humph. 396, in which a distinc- tion is made between notice and knowledge. The court in this case says: "We do not intend to controvert the general doctrine that 'notice must come to the agent while he is concerned for the principal and in the course of the same transaction;' for notice to a party while he is not acting as agent is certainly no notice to a principal for whom he may afterwards act. But the existence of knowledge in an agent when acting for his principal is notice to the principal, however that knowledge may have been acquired. Thus, if an agent in his own transaction has had notice of a fact, that notice does not reach his principal because he is not then acting for his principal ; and before he comes to act as such agent in relation to the subject about which he had notice, he may have forgotten the whole matter, so that it was never present in his mind while discharging the duties of his agency. . . . But certainly if, while an agent is concerned and acting for his principal, he have knowledge of facts in relation to which notice is necessary, there can be no necessity for giving for- mal notice of the same facts to the individual who already knows them." Bee also note in 39 Am. Rep. 322, and article in 16 Am. L. Reg. 1, where many authorities are reviewed. 744 BRIEF OlST FACTS. In some states which ordinarily follow this rule the stricter rule is ap- plied where knowledge of an attorney is sought to be imputed to his client. McCormick v. Wheeler, 36 111. 114, 85 Am. Dec. 388, and cases- cited in note in 57 Am. St. Rep. 916. 3 Distilled Spirits (Harrington v. United States) 11 Wall. 356, 20 L. ed. 167; Fairfield Sav. Bank v. Chase, 72 Me. 226, 39 Am. Eep. 319; Wood V. Rayburn, 18 Or. 3. The rule does not apply where the conversation was not of such a nature as would naturally require the agent to communicate it to his prin- cipal, as, where it was the mere idle talk of parties having no in- terest in the subject discussed, and not likely to make any impression on the mind of the agent. The notice to the agent to operate as- constructive notice to the principal must be such as would reasonably charge the agent, on failure to repeat, with breach of duty to his employer. Day v. Wamsley, 33 Ind. 145. The principal is not charged with notice of rumors or loose information coming to the knowledge of the agent which he is not bound to charge his mind with. Shafer v. Phcenix Ins. Co. 53 Wis. 361, 10 N. W. 381. lAkers v. Rowan, 33 S. C. 451, 10 L.R.A. 705, 12 S. E. 165; Melms v. Pabst Brewing Co. 93 Wis. 153, 57 Am. St. Rep. 899, 66 N. W. 518; Hunter v. Watson, 12 Cal. 377, 73 Am. Dec. 543 ; Union Nat. Bank v. German Ins. Co. 18 C. G. A. 203, 34 U. S. App. 397, 71 Fed. 473; Distilled Spirits (Harrington v. United States) 11 Wall. 356, 20 L. ed. 167. This rule is most frequently applied in the case of attorneys. For note on notice to attorney as notice to client, see 57 Am. St. Rep. 914, 5 Mechem, Agency, § 723 ; and cases in following section. c. Where agent is personally interested or is perpetrating a- fraud. — A well-established exception to the rule imputing notice of an agent to his principal is that the principal is not charged with the knowledge of his agent when the latter is committing an independent fraudulent act on his own account, or is acting in his own or another's interest and adversely to that of his prin- cipal.' Mr. Pomeroy^ suggests a doubt whether this excep- tion applies to the managing officers of a corporation, through whom alone the corporation can act. But it has been well said ' that it is not the fact that the principal is a corporation instead of a natural person which affects the application and force of the reason, and the exception has often been applied in cases where the person whose knowledge was sought to be charged to the cor- poration was a director, president, or other managing officer. Thus, the exception has been applied in the case of a president of NOTICE. 745 a banlj,* in case of the presidents of other kinds of corporations f where the officer was president and cashier;* promoter of a bank ; ' director of a bank ; ' cashier ; ' superintendent of a zinc and mining corporation ; ^^ treasurer of a corporation. '' The exception has also been recognized where a bank officer is in- terested in another company or estate, for which he acts in the transaction with the bank.'^ There is, however, good authority, if not the weight of authority, in favor of a qualification of this exception so as to exclude therefrom and to bring within the general rule, which charges the principal with knowledge pos- sessed by the agent, cases where the ofiicer, though he acts for himself or for a third person, is the sole representative of the corporation in the transaction in question. Thus, banks have been held chargeable with the agent's knowledge where he was the only representative of the bank in the transaction, although he was personally interested, where the representative was the president,^^ president and general manager,'* president and cash- ier,''^ cashier,'® treasurer,'' teller." In other cases, the exception seems to have been recognized, notwithstanding the fact that the bank officer was its only rep- resentative in the transaction.'* llnnerarity v. Merchants' Nat. Bank, 139 Mass. 332, 52 Am. Rep. 710, 1 N. E. 282; Dillaway v. Butler, 135 Mass. 479; Allen v. South Boston E. Co. 150 Mass. 200, 5 L.E.A. 716, 15 Am. St. Rep. 185, 22 N. E. 917; Hickman v. Green, 123 Mo. 165, 29 L.R.A. 39, 22 S. W. 455, 27 S. W. 440; Shipman v. Bank of State, 126 N. Y. 318, 12 L.R.A. 791, 22 .Am. St. Rep. 821, 27 N. B. 371 ; Shepard k M. Lumber Co. v. Eldridge, 171 Mass. 516, 41 L.E.A. 617, 68 Am. St. Rep. 446, 51 N. E. 9; Foote V. Cotting, 195 Mass. 55, 15 L.R.A. (N.S.) 693, 80 N. E. 600; Mer- chants' Nat. Bank v. Nichols & S. Co. 223 111. 41, 7 L.R.A. (N.S.) 752, 79 N. E. 38; Mechem, Agency, § 723; 2 Pom. Eq. Jur. 3d ed. § 675. 2 2 Pom. Eq. Jur. 3d ed. § 675, note 1. 3Brookhouse v. Union Pub. Co. 73 N. H. 368, 2 L.R.A. (N.S.) 993, 111 Am. St. Rep. 623, 62 Atl. 219, 6 Ann. Cas. 675. ILamson v. Beard, 45 L.R.A. 822, 36 C. C. A. 56, 94 Fed. 30; American Surety Co. v. Pauly, 170 U. S. 133, 42 L. ed. 977, 18 Sup. Ct. Eep. 552, affirming 18 C. C. A. 644, 38 U. S. App. 254, 72 Fed. 470; Peo- ple's Bank v. Exchange Bank, 116 Ga. 820, 94 Am. St. Rep. 144, 43 S. E. 269; First Nat. Bank v. Babbidge, 160 Mass. 563, 36 N. E. 462; People's Sav. Bank v. Hine, 131 Mich. .181, 91 X. W. 130; Re Plank- inton Bank, 87 Wis. 378, 58 N. W. 784; State Bank v. Mathers, 45 Neb. 659, 50 Am. St. Rep. 565, 63 N. W. 930. 746 BEIEF ON FACTS. SFrenkel v. Hudson, 82 Ala. 158, 60 Am. Eep. 736, 2 So. 758; Seaverns V. Presbyterian Hospital, 173 111. 414, 64 Am. St. Eep. 125, 50 N. E. 1079; International Wrecking & Transp. Co. v. McMorran, 73 Mich. 467, 41 N. W. 510; Barnes v. Trenton Gaslight Co. 27 N. J. Eq. 33; Victor Gold & S. Min. Co. v. National Bank, 15 Utah, 397, 49 Pac. 826. CKoehler v. Dodge, 31 Neb. 328, 28 Am. St. Eep. 518, 47 N. W. 913; Cam- den Safe Deposit & T. Co. v. Lord, 67 N. J. Eq. 489, 58 Atl. 607; Commercial Bank v. Burgwyn, 110 N. C. 267, 17 L.E.A. 326, 14 S. E. 623. 7Ee European Bank, L. E. 5 Ch. 358, 39 L. J. Ch. N. S. 588, 22 L. T. N. S. 422, 18 Week. Eep. 474. 8 Terrell v. Branch Bank, 12 Ala. 502; Sebald v. Citizens' Deposit Bank, 31 Ky. L. Eep. 1244, 14 L.E.A.(N.S.) 376, 105 S. W. 130; Clarke v. Second Nat. Bank, 177 Mass. 257, 59 N. E. 121; Innerarity v. Mer- chants' Nat. Bank, 139 Mass. 332, 52 Am. Eep. 710, 1 N. E. 282; Shaw V. Clark, 49 Mich. 384, 43 Am. Eep. 474, 13 N. W. 786 ; Atlantic State Bank v. Savery, 82 N. Y. 291; New York v. Tenth Nat. Bank, "111 N. Y. 446, 19 N. Y. S. E. 133, 18 N. E. 618; Wardlaw v. Troy Oil Mill, 74 S. C. 368, 114 Am. St. Eep. 1004, 54 S. E. 658; First Nat. Bank v. Lowther-Kaufman Oil & Coal Co. 66 W. Va. 505, 28 ■L.E.A.(N.S.) 511, 66 S. E. 713. 9 First Nat. Bank v. Bevin, 72 Conn. 666, 45 Atl. 954; Hummel v. Bank of Monroe, 75 Iowa, 689, 37 N. W. 954; Ft. Dearborn Nat. Bank v. Seymour, 71 Minn. 81, 73 N. W. 724; National Bank v. Feeney, 9 S. D. 550, 46 L.E.A. 732, 70 N. W. 874; State Bank v. Forsyth, 41 Mont. 249, 28 L.E.A. (N.S.) 501, 108 Pac. 914; Bank of Overton v. Thompson, 56 C. C. A. 554, 118 Fed. 798. 10 Wickersham v. Chicago Zinc Co. 18 Kan. 481, 26 Am. Eep. 784, 3 Mor. Min. Eep. 536. llBrookhouse v. Union Pub. Co. 73 N. H. 368, 2 L.E.A. (N.S.) 993, 111 Am. St. Eep. 623, 62 Atl. 219, 6 Ann. Cas. 675. 12 President o/ bank : Corcoran v. Snow Cattle Co. 151 Mass. 74, 23 N. E. 727; Gallery v. National Exch. Bank, 41 Mich. 169, 32 Am. Eep. 149, 2 N. W. 193; First Nat. Bank v. Strait, 75 Minn. 396, 78 N. W. 101; DeKay v. liackensack Water Co. 38 N. J. Eq. 158; Crooks v. People's Nat. Bank, 34 Misc. 450, 70 N. Y. Supp. 271; affirmed in 177 N. Y. 68, 69 N. E. 228; Holm v. Atlas Nat. Bank, 28 C. C. A. 297, 55 U. S. App. 570, 84 Fed. 119. Vice president of hank: Merchants' Nat. Bank v. Lovitt, 114 Mo. 520, 35 Am. St. Eep. 770, 21 S. W. 825; Commercial Bank v. Burgwyn, 110 N. C. 267, 17 L.E.A. 326, 14 S. E. 623; Gunster v. Scranton Il- luminating, H. & P. Co. 181 Pa. 328, 59 Am. St. Eep. 650, 37 Atl. 550. Directors : Benton v. German- American Nat. Bank, 122 Mo. 332, 26 S. W. 975; First Nat. Bank v. Christopher, 40 N. J. L. 435, 29 Am. Eep. 262; Casco Nat. Bank v. Clark, ]39 N. Y. 307, 36 Am. St. Eep. 705, 34 N. E. 908; Manufacturers' Nat. Bank v. Newell, 71 Wis. 314, 37 N. W. 420. NOTICE. 747 CasMer: National Bank v. Fitze, 76 Mo. App. 356; Hadden v. Dooley, 34 C. C. A. 338, 63 U. S. App. 173, 92 Fed. 274, reversed on other grounds in 179 U. S. 646, 45 L. ed. 357, 21 Sup. Ct. Rep. 259. WBrobston v. Penniman, 97 Ga. 527, 25 S. E. 350; Holden v. New York & E. Bank, 72 N. Y. 286; Cook v. American Tubing & Webbing Co. 28 R. I. 41, 9 L.R.A. (N.S.) 193, 65 Atl. 641; Smith v. Wilson & B. Sav. Bank, 1 Tex. Civ. App. 115, 20 S. W. 1119; Ditty v. Dominion Nat. Bank, 22 C. C. A. 376, 43 U. S. App. 613, 75 Fed. 769. J4 First Nat. Bank v. Blake, 60 Fed. 78. IB Hardy v. First Nat. Bank, 56 Kan. 493, 43 Pac. 1125. 16 Lowndes v. City Nat. Bank, 82 Conn. 8, 22 L.R.A.(N.S.) 408, 72 Atl. 150; Morris v. Georgia Loan, Sav. & Bkg. Co. 109 Ga. 12, 46 L.R.A. 506, 34 S. E. 378 ; Tilden v. Barnard, 43 Mich. 376, 38 Am. Rep. 197, 5 N. W. 420; Fishkill Sav. Inst. v. National Bank, 80 N. Y. 162, 36 Am. Rep. 595; Loring v. Brodie, 134 Mass. 453; National Bank v. Feeney, 9 S. D. 550, 46 L.R.A. 732, 70 N. W. 874; Emerado Farmers' Elevator Co. v. Farmers' Bank, 20 N. D. 270, 29 L.R.A.(N.S.) 567, 127 N. W. 522. J7 Oak Grove & S. V. Cattle Co. v. Foster, 7 N. M. 650, 41 Pac. 522. 18 Atlantic Bank v. Merchants' Bank, 10 Gray, 532 ; City Nat. Bank v. Martin, 70 Tex. 643, 8 Am. St. Rep. 632, 8 S. W. 507. ISFindley v. Cowles, 93 Iowa, 389, 61 N. W. 998; Seneca County Bank v. Neass, 5 Denio, 329; Indian Head Nat. Bank v. Clarke, 166 Mass. 27, 43 N. E. 912. The knowledge of an oificer of a bank, who is also a member of its discount committee, and who offers the bank a note which he had secured by fraud, but who withdraws from the committee meeting while the question of the acceptance of the note is under consideration, is not imputable to the bank so as to prevent its enforcing the note. Lilly v. Hamilton Bank, 29 L.R.A. (N.S.) 558, 102 C. C. A. 1, 178 Fed. 53. See also notes in 2 L.R.A. (N.S.) 993 and 29 L.R.A. (N.S.) 558. d. Notice to officers of corporation. — The general rule that notice of a fact to an agent as to a matter within the scope of his authority is notice to the principal is applicable to corporations as well as to natural persons.* But nob every agent of a corpo- ration is to he considered an agent for all purposes, and therefore the rule that the notice must be as to a matter within the scope of the agent's authority should be strictly observed.* It is well settled that notice to the board of directors of a corporation is notice to the corporation.' But the knowledge of an individual director, which he does not communicate to the board, cannot be imputed to the corporation, where he does not act with tlie board on the matter to which the notice relates.* But the corporation 748 BRIEF ON FACTS. is held to be bound by notice to an individual director, ■whether communicated to the board of directors or not, where he acts as a member of the board upon the matter to which his knowl- edge relates.* And it has been held that notice communicated to a director officially for the express purpose of being communi- cated to the board of directors is notice to the board, although the information is in fact not communicated.* And if the board of directors or trustees makes a single director or any person its officer or agent to act for it, notice to such officer or agent, who was at the time acting for the corporation within the range of his authority, is notice to the corporation.'' Where the director or other agent having notice has a personal interest in the trans- action, or is engaged in perpetrating a fraud, the corporation is not bound by his knowledge.' 1 Mecliem, Agency, § 729; Elliott, Corp. 4tli ed. § 534; 3 Cook, Corp. 6tli cd. § 727, p. 2366 ; 2 Thompson, Corp. 2d ed. § 1645 ; Farmers' & C. Bank V. Payne, 25 Conn. 444, 68 Am. Dec. 362; Mechanic's Bank v. Schaum- burg, 38 Mo. 244; National Newark Bkg. Co. v. Delaware, L. & W. E. Co. (N. J. Err. & App.) 70 N. J. L. 774, 66 L.E.A. 595, 108 Am. St. Eep. 825, 58 Atl. 311 ; Indiana, I. & I. E. Co. v. Swannell, 157 111. 616, 30 L.E.A. 290, 41 N. E. 989; Quincy Coal Co. v. Hood, 77 111. 68, 12 Mor. Min. Eep. 148; Pittsburgh, Ft. W. & C. E. Co. v. Euby, 38 Ind. 294, 10 Am. Eep. Ill; Conro v. Port Henry Iron Co. 12 Barb. 27; Holden v. New York & E. Bank, 72 N. Y. 286. Notice to the cashier of a bank as to all matters within the scope of his business will be imputed to the bank. Duncan v. Jaudon, 15 Wall. 165, 21 L. ed. 142; New Hope & D. Bridge Co. v. Phenix Bank, 3 N. Y. 156. aCongar v. Chicago & N. W. E. Co. 24 Wis. 157, 1 Am. Eep. 164; Elliott, Corp. § 534, p. 729; Thompson, Corp. 2d. ed. § 1647, p. 733. Even where notice to a director or other officer is not equivalent to notice to the corporation by reason of relating to a, matter not under his charge, it is competent as a fact from which notice to the corporation may be found; because the jury may presume that he did his duty by communicating to the corporation the knowledge he had obtained and which it was material that the corporation should know. Winne V. Ulster County Sav. Inst. 37 Hun, 349, 351. <. Great Northern E. Co. 76 Minn. 461, 79 N. W. 523; Missouri P. E. Co. V. Palmer, 55 Neb. 551, 76 N. W. 169; First Nat. Bank v. Pire Asso. of Philadelphia, 33 Or. 172, 53 Pac. 8, 50 Pac. 568, and cases cited; Vermillion Artesian Well, Electric Light, Min. I. & Im- T60 BEIEF ON FACTS. prov. Co. V. Vermillion, 6 S. D. 466, 61 N. W. 802, and cases cited. And for numerous illustrations, see Ability; Feeunq; Health, etc. 2 Collins V. New York, C. & H. E. R. Co. 109 N. Y. 243, 16 N. E. 50, revers- ing judgment in 23 N. Y. Week. Dig. 154, because engineer was not allowed to answer whether one engine discharged more sparks than the other, but was required to state what he observed. 2. Questions preliminary to opinion. Whether one offered as an expert is qualified as such is a question to be determined by the court. ^ Before a witness will be permitted to give his opinion as an expert, his qualification as such must be established by a pre- liminary examination.^ And the court niay, in its discretion, allow the objector to interpose with preliminary cross-examin- ation upon the facts material to competency.^ 1 Nelson v. Sun Mut. Ins. Co. 71 N. Y. 453, affirming 8 Jones & S. 417; Lynch v. Grayson, 5 N. M. 487, 25 Pac. 992, and cases cited. And see Civil Trial Brief (2d ed.) 250. 2 Little Rock & Ft. S. R. Co. v. Bruce, 55 Ark. 65, 17 S. W. 363 ; Fairbank V. Hughson, 58 Cal. 314 ; Tyler v. Todd, 36 Conn. 218 ; Sandwich Mfg. Co. V. Nicholson, 32 Kan. 666, 5 Pac. 164; Lincoln v. Barre, 5 Cush. 590; State v. Secrest, 80 N. C. 450; Koons v. State, 36 Ohio St. 195; Delaware & C. Steam Towboat Co. v. Starrs, 69 Pa. 36; Buffum v. New York & B. R. Co. 4 R. I. 221 ; Carpenter v. Corinth, 58 Vt. 214, 2 Atl. 170. And see Civil Trial Brief (2d ed.) 126. 3Sarle v. Arnold, 7 R. I. 582; Fort Wayne v. Coombs, 107 Ind. 75, 57 Am. Rep. 82, 7 N. E. 743; Finch v. Chicago, M. & St. P. R. Co. 46 Minn. 250, 48 N. W. 915; Re Gorkow, 20 Wash. 563, 56 Pac. 385. (Mr. Abbott, in his first edition, stated the rule to be, as to this question, that it was matter of right, citing First Nat. Bank v. Wirebach, 12 W. N. C. 150, and criticising Fort Wayne v. Coombs, 107 Ind. 75, 57 Am. Rep. 82, 7 N. E. 743, as unsound, saying: "For though the ap- pellate court may regard the question of qualification discretionary, the objector has a right to have the facts put upon the record by cross-examination, in order that the appellate court may see that there has been no abuse of that discretion." But, as will be seen, the weight of authority is to the effect that the privilege of such a pre- liminary cross-examination is discretionary with the court). Though held to be a' right in Woodworth v. Brooklyn Elev. R. Co. 22 App. Div. 501, 48 N. Y. Supp. SO, and the case reversed for its denial, it was said that in civil cases, at least, the denial of the right is not error where the objector has not been prejudiced thereby. OPINIONS. 761 3. Gualification of expert. Either professional study or actual experience is enough to qualify; both are not necessary.' But there must be one or the other.*^ Testimony of other witnesses is admissible in de- termining the competency of an alleged expert.' And the bur- den of showing that an alleged expert is qualified rests on the party calling him.* 1 Hand v. Church, 39 Hun, 303 (one not a practising lawyer, but admitted to the bar, and with much experience in litigation and in paying for legal services, competent to testify to value) ; Fort Wayne v. Coombs, 107 Ind. 75, 57 Am. Rep. 82, 7 N. E. 743 (study without practical ex- perience sufficient) ; Wheeler & W. Mfg. Co. v. Buckhout, 60 N. J. L. 102, 36 Atl. 772; Glover v. Gentry, 104 Ala. 222, 16 So. 38 (one having long experience in handling notes, etc., although not an "expert in ink," competent to testify whether different parts of note were writ- ten with same ink) ; First Nat. Bank v. Fire Asso. of Philadelphia, 33 ■ Or. 172, 50 Pac. 568, 53 Pac. 8 (skilled firemen competent to testify as to whether fire was burning naturally, or whether something in- flammable had been distributed to accelerate the fire) ; Pearson v. Zehr, 138 111. 48, 29 N. E. 854 (witness although not veterinary surgeon, having had for many years personal care of, and extensive practical experience with, horses and a particular disease, and ample opportunity to observe the symptoms, competent to testify to existence of symptoms and disease in given case) ; Pendleton v. Saunders, 19 Or. 9, 24 Pac. 506, 512; Com. v. Farrell, 187 Pa. 408, 41 Atl. 382; Fort Worth & D. C. R. v. Thompson, 75 Tex. 501, 12 S. W. 742. The opinion of a witness formerly practising a particular trade or pro- fession is not rendered Incompetent upon a question relating to such art or trade or profession, by the fact that he has abandoned its prac- tice and is engaged in other business. Bearss v. Copley, 10 N. Y. 93 ; Stone V. Moore, 83 Iowa, 186, 49 N. W. 76. s. p. Robertson v. Knapp, 35 N. Y. 91, 33 How. Pr. 309. z American Aeci. Co. v. Fidler, 18 Ky. L. Rep. 161, 163, 36 S. W. 528, 35 S. W. 905. That mere observation without study or practice is not enough, see Wheeler & W. Mfg. Co. V. Buckhout, 60 N. J. L. 102, 36 Atl. 772. 3 Wright V. Schnaier, 35 Misc. 37, 70 N. Y. Supp. 128. 4 Dolan V. Herring-Hall-Marvin Safe Co. 105 App. Div. 366, 94 N. Y. Supp. 241. 4. Party as expert. A party to the action may, as an expert, testify to his own opinion.' 1 Dickenson v. Fitchburg, 13 Gray, 546. T62 BRIEF ON FACTS. 5. On what questions competent. Superior knowledge or skill on the part of a witness does not make a case for expert opinion; but the question itself must be one relating to some trade, profession, science, or art in which persons instructed therein, by study or experience, may be supposed to have more skill and knowledge than ju- rors of average intelligence may be presumed generally to have.^ 1 Ferguson v. Hubbell, 97 N. Y. 507, 49 Am. Rep. 544, and cases cited; First Nat. Bank v. Fire Asso. of Philadelphia, 33 Or. 172, 50 Pac. 568, 53 Pae. 8 (where a number of authorities are reviewed) ; Stead v. Wor- cester, 150 Mass. 241, 22 N". E. 893; Armstrong v. Chicago, M. & St. P. R. Co. 45 Minn. 85, , 47 N. W. 459. And for cases recognizing this rule, but holding the evidence not admissible because the question was not one for expert testimony, see: American Oak Extract Co. v. Ryan, 112 Ala. 337, 20 So. 644; North Kankakee Street R. Co. v. Blatchford, 81 111. App. 609; Briggs v. Minneapolis Street R. Co. 52 Minn. 36, 53 N. W. 1019 ; St. Louis, A. & T. R. Co. v. Jones, — Tex. — , 14 S. W. 309; Schneider v. Second Ave. R. Co. 133 N. Y. 583, 30 N. E. 752 ; Overby v. Chesapeake & O. R. Co. 37 W. Va. 524, 16 S. E. 813; Kircher v. Milwaukee Mechanics' Mut. Ins. Co. 74 Wis. 470, 5 L.R.A. 779, 43 N. W. 487. And that the mere fact that the opinion may be upon a question which the jury is to decide is not sufficient to justify the exclusion of the testimony, so long as the question is a proper one for expert testimony, see New York Electric Equipment Co. v. Blair, 25 C. C. A. 216, 51 U. S. App. 81, 79 Fed. 896; Van Wyckleu v. Brooklyn, 118 N. Y. 424, 24 N. E. 179. 6. Direct testimony on the fact. When the knowledge of the expert as to the particular fact in question is derived from his own observations, whether made in or out of court, he may be asked his opinion directly upon the fact.* When his knowledge is derived from hearing the testimony of witnesses he cannot be asked his opinion directly on the fact, but a hypothetical question must be put.'' But it is not error to allow a direct question founded on what the expert has heard a previous witness state, if such statements are unquestioned, and the jury understand that the opinion of the expert is given on the assumption of their truth.* OPINIONS. 763 The mere fact that a question put to an expert is based in part upon the personal knowledge of the witness, and in part upon an hypothesis, does not make it objectionable.* But an answer to an hypothetical question, which is based, not only on the facts assumed, but on the personal knowledge of the witness, is improper, and should not be allowed.' 1 State V. Leabo, 89 Mo. 247, 1 S. W. 288 ; Louisville, N. A. & C. R. Co. v. Wood, 113 Ind. 547, 14 N. E. 572, 16 N. E. 197; Green v. Ashland Water Co. 101 Wis. 258, 43 L.R.A. 117, 77 X. W. 722. And see Civil Trial Brief (3d ed.) 197. 2 Reynolds v. Robinson, 64 N. Y. 589. To call for the opinion of a witness it is not competent, if the evidence is conflicting, to ask him whether he, having heard the evidence, and supposing it to be true, is or is not of a specified opinion ; but he should be asked if specified facts, assumed by the question to be established, are found by the jury to be true, what would, on such facts, be his opinion on the question. Woodbury v. Obear, 7 Gray, 467, 471, ap- proved in Com. v. Mullins, 2 Allen, 295. To the same effect: Chicago & A. R. Co. V. Glenny, 175 111. 238, 51 N. E. 896 ; Sauntman v. Maxwell, 154 Ind. 114, 54 N. E. 397; Wichita v. Coggshall, 3 Kan. App. 540, 43 Pac. 842; McCarthy v. Boston Duck Co. 165 Mass. 165, 42 N. E. 568; Sebrell v. Barrows, 36 W. Va. 212, 14 S. E. 996 ; Green v. Ashland Wa- ter Co. 101 Wis. 258, 43 L.R.A. 117, 77 N. W. 722. And see Civil Trial Brief (3d.ed.) 197 et seq. 3 Seymour v. Fellows, 77 N. Y. 178, affirming 12 Jones & S. 124; Yaeger V. Southern California R. Co. — Cal. — , 51 Pae. 190; Abbott v. Dwin- nell, 74 Wis. 514, 43 N. W. 496, s. p., Yardley v. Cuthbertson, 108 Pa. 395, 56 Am. Rep. 218, 1 Atl. 765; Gates v. Fleischer, 67 Wis. 504, 30 N. W. 674 (question based partly on hypothetical statement, and partly on assumption of what expert had heard testified by previous witness in the same cause ) . But the question must require the witness to as- sume the truth of the testimony. Jones v. Chicago, St. P. M. & 0. R. Co. 43 Minn. 279, 45 N. W. 444. And the expert must be shown to have heard such other previous testimony. Howland v. Oakland Con- sol. Street R. Co. 115 Cal. 487, 47 Pac. 255. Hypothetical question, how framed, see, generally. Civil Trial Brief, 3d ed. 199 ; Criminal Trial Brief. 4 Selleck v. Janesville, 100 Wis. 157, 41 L.R.A. 563, 75 ISf. W. 975 ; Louis- ville, N. A. & C. R. Co. V. Falvey, 104 Ind. 410, 3 N. E. 389. And in Tebo V. Augusta, 90 Wis. 405, 63 N. W. 1045, such a question was ap- proved as against the objection that it invaded the province of the Jury in submitting to the expert the question to be determined by the jury. To the effect that a hypothetical case and personal examination cannot bo joined in the same question, where the examination was little or no 764 BRIEF ON FACTS. evidence of the fact in issue, see State v. Welsor, 117 Mo. 570, 21 S. W. 443. S Fuller V. Jackson, 92 Mich. 197, 52 N. W. 1075. 7. Basis of fact for opinion. The facts assumed in a hypothetical question as the basis for an opinion must have some support in the evidence.^ The question must not embrace all the facts in evidence/ although it must not omit a material fact essential to an intelligent opin- ion.' Whether or not the facts assumed are true or are estab- lished by the evidence is for the jury,* and constitutes no avail- able objection to the question.^ The opinion of an expert can be called for, although it was formed on hearsay, if the question put states the facts on which the opinion is based in hypothetical form, and they may fairly be claimed to be supported by evidence already received.^ An answer to a hypothetical question, which the witness states is based upon the facts stated in the question and upon reading the evidence in a former trial, should be stricken out.' 1 People V. Harris, 136 N. Y. 423, 33 N. E. 65 ; Hurst v. Chicago, K. I. & P. R. Co. 49 Iowa, 76; Haish v. Payson, 107 111. 365. For a. more compre- hensive treatment of this question, see Civil Trial Brief (2d ed.) 144 et seq.; Burt v. State, 39 L.E.A. 305, with note. s. C. 38 Tex. Crim. Kep. 397, 40 S. W. 1000, 43 S. W. 344. See also § 9, infra, this title. 8 People V. Durrant, 116 Cal. 179, 48 Pae. 75 ; Gulf, C. & S. F. R. Co. v. Compton, 75 Tex. 667, 13 S. W. 667 ; Bowen v. Huntington, 35 W. Va. 682, 14 S. E. 217. sVosburg V. Putney, 80 Wis. 523, 14 L.R.A. 226, 50 N. W. 403. 4 Gottlieb V. Hartman, 3 Colo. 53; Grand Lodge I. O. of M. A. v. Wieting, 168 111. 408, 48 N. E. 59. 5 Deig V. Morehead, 110 Ind. 451, 11 N. E. 458. 6 Cushman v. United States L. Ins. Co. 70 N. Y. 72 (holding that the er- ror in allowing a question expressly based on hearsay was not avail- able on appeal, where only a general objection was made at the trial. The opinion was that of one physician founded on what another in attendance had told him). 7 Commercial Travelers' Mut. Acci. Asso v. Fulton, 35 C. C. A. 493, 93 Fed. 621. 8. Doubtful facts may be assumed. Counsel may assume facts as they claim them to exist; and OPINIONS. 765 an error in the assumption does not make the question objec- tionable, if it is within the possible or probable range of evi- dence.^ Hypothetical questions need not state facts as they exist. Each side may shape questions according to its theory.^ iHarett v. Garvey, 66 N. Y. 641; Jackson v. Burnham, 20 Colo. 532, 39 Pac. 577. 2 Cowley V. People, 83 N. Y. 464, 38 Am. Rep. 464, affirming 8 Abb. N. C. 1, 21 Hun, 415; Filer v. New York C. & H. R. R. Co. 49 N .Y. 42, 10 Am. Rep. 327 ; Jackson v. New York C. R. Co. 2 Thomp. & C. 653, Af- firmed in 58 N. Y. 623, on opinion of lower court; Cole v. Fall Brook Coal Co. 159 N. Y. 59, 53 N. E. 670. And see Civil Trial Brief (3d ed.) 200. By a hypothetical question on facts suggesting several hypotheses, an expert may be asked what would have been the indications on one or another hypothesis, without first proving it to be the true one. Erick- son V. Smith, 2 Abb. App. Dec. 64. 9. Assuming fact without evidence. On direct examination, a question which assumes any ma- terial fact which there is no evidence to support must be ex- cluded.^ 1 State V. Cross, 68 Iowa, 180, 26 N. W. 62; State v. Hanley, 34 Minn. 430, 26 N. W. 397; People v. Augsbury, 97 N. Y. 501; Davis v. Travelers' Ins. Co. 59 Kan. 74, 52 Pac. 67; Chalmers v. Whitraore Mfg. Co. 164 Mass. 532, 42 N. E. 98; Burnett v. Wilmington, N. & N. R. Co. 120 N. C. 51-7, 26 S. E. 819 (error to admit question). See also Civil Trial Brief (3d ed.) 199. But that there is no direct evidence to support the fact assumed is no objection; circumstantial evidence is sufficient. Smith v. Chicago & A. R. Co. 119 Mo. 246, 23 S. W. 784. 10. Preponderance of evidence not necessary. If the facts assumed by a hypothetical question are not un- supported by evidence in the case, the question cannot be ex- cluded merely on the ground that in the opinion of the judge the facts are not established by a preponderance of evidence.' IQuinn v. Higgins, 63 Wis. 664, 53 Am. Rep. 305, note, 24 N. W. 482 (mal- practice; judgment reversed for error in this respect, among others). And that they need not be proved to a certainty or with any degree of certainty, see Baxter v. Knox, 19 Ky. L. Rep. 1973, 44 S. W. 972. 766 BEIEF ON FACTS. The test is whether, on the state of the evidence already in, a finding by the jury of such facts would be sustained ; in other words, the facts as- sumed must be supported by sufficient evidence to go to the jury. Peo- ple V. Augsbury, 97 N. Y. 501. To similar effect, Morrisett v. Wood, 123 Ala. 384, 26 So. 307. 11. Written question. The court may require counsel to reduce his hypothetical question to writing.' 1 Mayo V. Wright, 63 Mich. 32, 29 N. W. 832. Length of question not alone ground for exclusion. Mayo v. Wright, 63 Mich. 32, 29 N. W. 832. And see Civil Trial Brief (3d ed.) 202. 12. Critical opinion of other testimony incompetent. A question calling for expert opinion upon evidence given by other witnesses, which covers a great variety of facts, is not competent if it calls for a comprehensive and critical view of the testimony given and the inferences to be drawn from the evidence of the witnesses.'' 1 Guiterman v. Liverpool, N. Y. & P. S. S. Co. 83 N. Y. 358 (error to al- low question to a nautical man: "Under the circumstances detailed by these witnesses, and on the protest, and when [stating further details] what in your opinion should have been done by the persons in charge?" Miller, J., says: "In order properly to form an opinion, the witness should have had full information as to the ascertained or supposed state of facts upon which his opinion is based; and he could not be called upon to determine the truth of the facts sworn to before giving such opinion. Nor could the witness be called upon to testify, unless a clear state of facts appeared; and it is not his province to draw infer- ences from the evidence of other witnesses, or to take in such facts as he can recollect, and thus form an opinion. . . The rule, after an examination of the authorities, we think, is that, in a case of this kind, a nautical man cannot be called upon to testify as to his opinion upon evidence given by other witnesses, which covers a great variety of facts, and calls for a comprehensive and critical view of the testimony given and the inferences to be drawn from the evidence of the witnesses. In this case, there was a discrepancy between the protest and some of the sworn testimony, perhaps not very important, yet at the same time of sufficient consequence to call for the discrimination of the witness as to the bearing of different parts [facts] upon the ease, and which might not have been fully appreciated or understood without the at- tention of the witness being especially directed to the subject and the OPINIOKS. 767 various facts connected therewith"). Link v. Sheldon, 136 N. Y. 1, 32 N. E. 696. And see Civil Trial Brief (3d ed.) 198 et seq. 13. Reason. The expert's reason for his opinion may be called for on his examination in chief.* 1 Lewiston Steam Mill Co. v. Androscoggin Water Power Co. 78 Me. 274, 4 Atl. 555. 14. Doubt. Where a witness has testified to a fact as to which opinion is competent, as for instance, identity, he may be asked whether he has any doubt.' Otherwise if he has declined to express an opinion.* 1 King V. New York C. & H. R. E. Co. 72 N. Y. 607. 2 Sanchez v. People, 22 N. Y. 147, 154. Compare Belief, § 2. 15. Cross-examination. On cross-examination abstract questions, and hypothetical questions not founded on evidence in the case, may be put for the purpose of testing the witness.* This does not make him the witness of the cross-examiner within the rule against contradicting one's own witness.* 1 People V. Augsbury, 97 N. Y. 501 (holding this discretionary with the court) ; Sever v. Spangler, 93 Iowa, 576, 61 N. W. 1072; Kansas City V. Marsh Oil Co. 140 Mo. 458, 41 S. W. 943. s. P., Louisville, N. A. & C. R. Co. V. Falvey, 104 Ind. 409, 3 N. E. 389. And see more fully on this question. Civil Trial Brief (3d ed.) 223 et seq. a Tucker v. Ely, 20 N. Y. Week. Dig. 66. 16. Impugning expert's examination. When an expert has given testimony founded upon his own examination, the party affected has a right to give evidence that adequate examination was not made.* 1 Laughlin v. Street R. Co. 62 Mich. 220, 28 N. W. 873 ( reversing judgment for excluding such evidence ) . 768 BRIEF ON" PACTS. 17. Weight and conclusiveness of expert's opinion. The general rule adopted by the courts is that the opinions of expert witnesses are not, as a mattet of law, to be accepted by the jury in the place of their own judgment,^ though they are entitled to respectful consideration.^ The question as to just what weight shall be given to expert opinions has given rise to some conflict, and to numerous and varied expressions of judicial opinion. But the rule generally stated would seem to be that the evidence of experts is to be received and treated by the jury precisely as other testimony, and that its weight will be determined by the character, capacity, skill, and oppor- tunities for observation and the state of mind of the experts themselves, as seen and heard and estimated by the jury, and by the nature of the case and of its developed facts.^ The weight that is to be given to the opinion of a witness must largely depend upon the opportunity the witness had to form a correct opinion, and the reasons which influence him in coming to it.* And the vakie of t"he opinion of an expert de- pends very largely upon the facts upon which it is based.' So, the opinions of experts are not to be allowed to outweigh es- tablished facts, or the positive, corroborated, and uncontra- dicted testimony of unimpeached witnesses to a fact.* And an expert is to be judged from the same standpoint as any other witness, and, if the jury find his conclusions or opinions to be the result of a biased or interested judgment, or of self-serving or improper motives, they have a right to reject them, partial- ly or entirely." iHead v. Hargrave, 105 U. S. 45, 26 L. ed. 3028; Lawlor v. French, 14 Misc. 497, 35 N. Y. Supp. 1077; Shanley v. Laclede Gaslight Co. 63 Mo. App. 132; Leitensdorfer V. King, 7 Colo. 436, 4 Pac. 37; Alabama G. S. R. Co. V. Hill, 93 Ala. 514, 30 Am. St. Rep. 65, 9 So. 722. It is strictly within the province of the jury to disregard each and every opinion uttered by experts. People v. Barberi, 2 N. Y. Crim. Rep. 89, 47 N. Y. Supp. 168. The rule that a jury has no right arbitrarily to ignore or discredit the testimony of unimpeached witnesses so far as they testify to facts, and that a wilful disregard of such testimony will be ground for a new trial, does not apply to the testimony of witnesses who testify merely to their opinions, and the jury may deal with them as they please, giving them credence or not, as their own experience or general knowl- OPINIONS, 769 edge of the subject may dictate. The Conqueror, 166 U. S. 110, 41 L. ed. 93 ^ 17 Sup. Ct. Eep. 510. 2 Com. V. Moss, 6 Kulp, 31; Chandler v. Barrett, 21 La. Ann. 58, 99 Am. Dec. 701; Leitensdorfer v. King, 7 Colo. 436, 4 Pac. 37; Kilpatrick v. Haley, G Colo. App. 407, 41 Pac. 508; The Conqueror, 166 U. S. 110, 41 L. ed. 937, 17 Sup. Ct. Eep. 510. 3 Louisville, N. 0. & T. E. Co. v. Whitehead, 71 Miss. 451, 42 Am. St. Rep. 472, 15 So. 890; Chandler v. Thompson, 30 Fed. 38; State v. Miller, 9 Houst. (Del.) 564, 32 Atl. 137. It is for the jury to say what weight shall be given to expert testimony in general. Sever v. Spangler, 93 Iowa, 576, 61 N. W. 1072; Humphries V. Johnson, 20 Ind. 190 ; Snyder v. State, 70 Ind. 349 ; State v. Miller, 9 Houst. (Del.) 564, 32 Atl. 137; Wells v. Leek, 151 Pa. 431, 25 Atl. 101; Gunter v. State, 83 Ala. 96, 3 So. 600; Anderson v. Barksdale, 77 Ga. 86; Templeton v. People, 3 Hun, 357; The Conqueror, 166 U. S. 110, 41 L. ed. 937, 17 Sup. Ct. Eep. 510. The evidence of experts as to the value of services is merely advisory, and may be given by the jury such weight as they' deem it entitled to, or be altogether disregarded if the jury, from all the facts and circum- stances in evidence, believe the testimony of the experts to be unreason- able. Hull V. St. Louis, 138 Mo. 618, 42 L.E.A. 753, 40 S. W. 89. 4 William Hamilton Mfg. Co. v. Victoria Lumber & Mfg. Co. 26 Can. R. C. 96; Green v. Terwilliger, 56 Fed. 384; Fljmt v. Bodenhamer, 80 N. C. 205; Snyder v. State, 70 Ind. 349; State v. Miller, 9 Houst. (Del.) 564, 32 Atl. 137; State v. Hinkle, 6 Iowa, 380; Wells v. Leek, 151 Pa. 431, 25 Atl. 101 ; Lehigh Valley Coal Co. v. Chicago, 26 Fed. 415 ; People V. Kemmler, 119 N. Y. 580, 24 N. E. 9 ; Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458; McGowan v. American Pressed Tan Bark Co. 121 U. S. 585, 30 L. ed. 1027, 7 Sup. Ct. Rep. 1315. 5 Hitchcock v. Burgett, 38 Mich. 504; First Nat. Bank v. Wirebaeh, 106 Pa. 37; Hovey v. Chase, 52 Me. 304, 83 Am. Dec. 514; Louisville, N. A. & C. E. Co. V. Falvey, 104 Ind. 409, 3 N. E. 389, 4 N. E. 908; Haight v. Val- let, 89 Cal. 245, 23 Am. St. Eep. 465, 26 Pac. 897; Ee New York Elev. E. Co. 35 N. Y. S. R. 947, 12 N. Y. Supp. 857 ; Harrison v. Eowan, 3 Wash. C. C. 580, Fed. Cas. No. 6,141. eKelley v. Cable Co. 8 Mont. 440, 20 Pac. 669; Stone v. Chicago & W. M. E. Co. 66 Mich. 76, 33 N. W. 24; Laughlin v. Street E. Co. 62 Mich. 220. 28 N. W. 873; Atlanta & C. Air Line R. Co. v. Gravitt, 93 Ga. 369, 20 L.E.A. 553, 44 Am. St. Rep. 145, 20 S. E. 550; Hall v. Fond du Lac. 42 Wis. 274. 7 People V. Vanderhoof, 71 Mich. 158, 39 N. W. 28; The Armstrong, Brown, Adm. 130, Fed. Cas. No. 540; Chicago & A. E. Co. v. Shannon, 43 HI. 339. For a, full discussion of the question of the conclusiveness of experts, see note in 42 L.E.A. 753. Abb. Facts — 49. BRIEF ON FACTS. OEDER OF COUET. 1. Copy. 2. Order in special proceeding. 3. Jurisdictional facts. 4. Best and secondary. 5. Informal order. 6. What is a court order. 7. Date and terra. 8. Entry for purpose of proving, 9. Ground. 10. Irapeaching. 1. Copy. An order of anotlier court may be proved by an exemplified copy ; ■^ or by a copy proved or formally certified under seal of the court to be an examined copy ; ^ or by producing the judgment roll containing a copy of the order.* 1 Robert v. Good, 36 N. Y. 408. Compare Wilson v. Conine, 2 Johns, 280, where the original of an order after decree was required. For distinction between exemplified and certified copies, see 1 Abbott, New. Pr. & F. 79, 80. If the jurisdiction and pendency of the action are not proved or admitted they must, of course, be shown. 2 Robert v. Good, 36 N. Y. 408; Mahoney v. Gunter, 10 Abb. Pr. 431 (hold- ing that an order of court cannot be proved by a copy signed and sealed by the judge). 3 Eighmy v. People, 79 N. Y. 546 ( so holding on indictment for perjury in swearing before a referee appointed by the order). At common law the minutes were not deemed a record; and an order only entered on the minutes could not be received as evidence that a judg- ment had been vacated. Crosswell v. Byrnes, 9 Johns, 287, Followed in McKnight v. Dunlop, 4 Barb. 36; Waldron v. Green, 4 Wend. 409. 2. Order in special proceeding. An order made in a special proceeding is not admissible in evidence without the production of the roll or record of the pro- ceedings in which the order was made.* I Mayer v. New York, 67 Barb. 323, Reaffirming 2 Hun, 306. s. c. 4 Thomp. & C. 488 (dictum), affirmed in 63 N. Y. 455. OEDEE OF COURT. 771 3. Jurisdictional facts. Eecitals in the order, of the pendency of the action of the jurisdictional facts, are evidence thereof, but not conclusive.' 1 Potter V. Merchants' Bank, 28 N. Y. 641, 86 Am. Dec. 273 (supreme court, order appointing receiver. Leading case) ; Dayton v. Johnson, 69 N. Y. 419 (order revoking letters, reciting due service of citation). Contra. In the ease of a receiver's petition, referred to in an order di- recting assessment of premium notes for losses when offered in evidence against a third person. Thomas v. Whallon, 31 Barb. 172. 4. Best and secondary. The nonexistence of any order on file does not preclude giv- ing secondary evidence, after proof of loss or destruction.* But it is not alone sufficient evidence of loss or destruction to let in secondary evidence.* 1 Fisher v. New York, 67 N. Y. 73, reversing 6 Hun, 64. Parol evidence is admissible to show that a temporary restraining order had been made and signed by the judge at chambers, and that it had been lost or mislaid, so that it could not be produced in evidence. Kiser V. Lovett, 106 Ind. 325, 6 N. E. 816. While orders made by a judge in vacation may be proved without the record, the record is the best evidence of the order; and, when the order is not recorded, strict proof should be exacted, if admissible at all. Bristol Sav. Bank v. Judd, 116 Iowa, 26, 89 N. W. 93. If the purpose of proof is to ascertain the judgment in legal proceedings, such fact cannot be proved by parol, but only by the record. Gam- brill V. Schooley, 95 Md. 260, 63 L.R.A. 427, 52 Atl. 500. 2 Eakin v. Doe ex dem. Vance, 10 Smedes & M. 549, 48 Am. Dec. 770; Wright V. Nostrand, 15 Jones & S. 441; Josuez v. Conner, 7 Daly, 448 (holding so, especially of a judge's order, which need not be filed ^ 5. Informal order. An oral order cannot he proved,' except in the few cases where a direction or decision given orally may be enforced. But the formal entry of an order of a court, as actually de- clared, may be made at any time when necessary for the pur- pose of evidence.* And entries in the common rule book, where the practice of 772 BRIEF ON FACTS. the court allows them,' and entries in the minutes before the record has been made up, are competent evidence. iMedlin v. Platte County, 8 Mo. 235, 40 Am. Dec. 135 (not error to reject testimony of one of the judges of a lower court, that they verbally or- dered an act done, where no written order or entry thereof was made in the records. Here a county court had orally assented that the name of a surety might be struck from a bond to the county ) . 2 People V. Myers, 2 Hun, 6. 3 Arundell v. White, 14 East, 216 (entry of "withdrawn by plaintiff's order,'' to show termination of suit ) . Compare Coopwood v. Prewett, 30 Miss. 206. 6. What is a court order. An order entitled as made in court, or reciting a hearing before the court, is a court order. ^ 1 Re Rhinebeck, 19 Hun, 346 (recital conclusive). See further, as to the distinction, and indicia, and amending, 1 Abbott, New Pr. & P. 240, 243. That a judge's order made in the city of New York is equivalent to a court order (with few exceptions). Id. 245. 7. Date and term. An order will not be presumed to have been made at an ir- regular term.^ 1 People ex rel. Brooklyn Park. Comrs. v. Brooklyn, 3 Hun, 596, affirmed, it seems, in 60 N. Y. 642, without opinion. For the significance of the date of an order, see 1 Abbott, New Pr. & F. 393, 394. Presumption that term was regularly held, Dallas County v. McKenzie, 110 U. S. 686, 28 L. ed. 285, 4 Sup. Ct. Rep. 184. 8. Entry for purpose of proving. An order in a former cause may be entered now for the pur- pose of proving it on the trial of the present cause; and the ])resent trial may be adjourned to enable such order to be en- tered that it may thereupon be proved.^ 1 Territory v. Christensen, 4 Dak. 410, 31 N. W. 849, and cases cited. OWNEESHIP. 773 9. Ground. An order not reciting the ground may be presumed, in support of it when collaterally in question, to have been made on any ground which might have availed under the papers on which it was made.^ An order reciting the ground will be presumed made on that ground alone. 1 Re Valentine, 3 Abb. N. C. 285, 72 N. Y. 184, reversing 10 Hun, 83. Com- pare 1 Abbott, New Pr. & F. 252. 10. Impeaching. An order of court may be impeached for fraud and collusion in obtaining it.'' iMandeville v. Reynolds, 68 N. Y. 528, affirming 5 Hun, 338. See also Stilwell V. Carpenter, 2 Abb. N. C. 238; Wilmerdings v. Fowler, 15 Abb. Pr. N. S. 86. PWISTEESHIP. 1. Direct testimony. ■1. Possession a.. In general. b. Of written instrument. 3. Hearsay. 4. Marks, signs, etc. 5. Entries in account. 6. Source of ownership a. In general. b. Producing document, 7. Continuance. For kindred topics, see Assignment; Claim; Deliveet; Gift; Possession. As to real property, see that title. 774 BEIEE ON FACTS. 1. Direct testimony. Where ownership is incidentally involved, a witness may testify directly to it as a fact, subject to cross-examination.'' 1 De Wolf V. Williams, 69 N. Y. 622 ; Nelson v. Iverson, 24 Ala. 9, with note to 60 Am. Dec. 442; Chicago, St. P. M. & 0. K. Co. ». Gilbert, 3 C. C. A. 264, 10 U. S. App. 375, 52 Fed. 711; Murphy v. Olberding, 107 Iowa, 547, 78 N. W. 205; Wolfe v. Underwood, 97 Ala. 375, 12 So. 234. And see Abbott, Tr. Ev. 2d ed. 740, 787. So aa to whether goods "belonged" to a specified person. Eocke v. Meiner, 2 Jones & S. 158. For the contrary rule, see Dunlap v. Berry, 4 111. 327, 39 Am. Dec. 413. But that a witness cannot do so where that is the principal fact to be proved, see Hite v. Stimmell, 45 Kan. 469, 25 Pac. 852. The plaintiff in an action for conversion was permitted to testify that she was the owner of the property in question. Pichler v. Reese, 171 N. Y. 577, 64 N. E. 441, affirming 50 App. Div. 621, 63 N. Y. Supp. 1116. 2. Possession. a. In general.— When ownership is incidentally involved, evidence of possession is sufficient to go to the jury, in the ab- sence of evidence tending to explain the possession otherwise.' Possession is prima facie proof of ownership.* 1 Fish V. Skut, 21 Barb. 333 (action for sheep killed by defendant's dog; proof that they were killed on plaintiff's premises, sufficient) ; State v. Boone, 70 Mo. 649 (possession in seller justifies buyer, as against charge of larceny) ; People v. Nelson, 56 Cal. 77 (possession sufficient, as against thief, on trial for robbery or larceny) ; NichoUs v. State, 68 Wis. 416, 32 N. W. 543, 547 (exclusive possession, occupancy, and con- trol of railroad car by express company, prima facie shows ownership ; on indictment for breaking and entering) ; Ross v. Lawson, 105 Ala. 351, 16 So. 890 (possession of execution defendant; claimant has bur- den) ; Stockwell v. Robinson, 9 Houst. (Del.) 313, 32 Atl. 528 (plain- tiff in replevin for goods in possession of another has burden to show better right) ; Mayer v. Wilkins, 37 Fla. 244, 19 So. 632; Southern Min. Co. V. Brown, 107 Ga. 264, 33 S. E. 73 (possession of claimant at time of levy; plaintifi' in execution has burden to show ownership in defend- ant) ; Gilbert v. National Cash Register Co. 176 111. 288, 52 N. E. 22; Barton v. People, 135 111. 405, 10 L.R.A. 302, 25 N. E. 776 (possession of agent sufficient to show ownership in principal ) ; James \ . Wood, 82 Me. 173, 8 L.R.A. 448, 19 Atl. 160 (possession of animals reclaimed from a wild state) ; Com. v. Blanchette, 157 Mass. 486, 32 N. E. 658 OWNEESHIP. 775 (possession sufficient as against one charged with obtaining goods under false pretenses ) . « Laporte v. Henry, 41 Ind. App. 197, 83 N. E. 655 ; Teass v. St. Albans, 38 W. Va. ], 19 L.R.A. 802, 17 S. E. 400. See same rule as to personal property; State v. Fatten, 1 Marv. (Del.) 552, 41 Atl. 193; James v. Wood, 82 Me. 173, 8 L.R.A. 448, 19 Atl. 160. One who has in his possession money which he deposits in a bank in his wife's name is presumed to be its owner. First Nat. Bank v. Tay- lor, 142 Ala. 456, 37 So. 695. b. Of written instrument. — In case of a written instrument, ■even when ownership is directly in issue, possession is suf- ficient without showing how it was acquired, if the instrument be payable to the person producing it, or to bearer,' in the ab- sence of evidence tending to explain the possession otherwise,^ -or raising suspicion as to how it was acquired.* If not so payable, possession is not alone evidence of owner- ship.* -1 As showing the general rule thus stated, see : Anniston Pipe Works v. Mary Pratt Furnace Co. 94 Ala. 606, 10 So. 259 ; Bank of California v. J. L. Mott Iron Works, 113 Cal. 409, 45 Pac. 674; Keed v. First Nat. Bank. 23 Colo. 380, 48 Pac. 507; Magel v. Milligan, 150 Ind. 582, 50 N. E. G. ; American Exch. Nat. Bank v. Crooks, 97 Iowa, 244, 66 N. W. 168 ; Ames & F. Co. v. Smith, 65 Minn. 304, 67 N. W. 999 ; Saunders v. Bates, 54 Neb. 209, 74 N. W. 578; Newmarket Sav. Bank v. Hanson, 67 N. H. 501, 32 Atl. 774; Halsted v. Colvin, 51 N. J. Eq. 387, 26 Atl. 928 ; J. D. Spreckels & Bros. Co. v. Bender, 30 Or. 577, 48 Pac. 418, and cases cited. And see cases reviewed in notes to Commercial Bank v. Burgwyn (N. C.) 17 L.R.A. 326, and Canajoharie Nat. Bank v. Diefen- dorf (N. Y.) 10 L.R.A. 677. The rule that possession of a note indorsed in blank is prima facie evi- dence of ownership does not apply to a note not possessing the qual- ities of commercial paper. Mitchell v. St. Mary, 148 Ind. Ill, 47 N. E. 224. Where the question is whether an agent suing on a note owns the note individually, or it belongs to the principal, and there is evidence tend- ing to show ownership in the principal, the agent has the burden of showing ownership. Barnes v. Peet, 77 Mich. 391, 43 N. W. 1025. Possession of coupons is not proof of ownership of the bonds from which they are cut. Huston v. Harrison, 168 Pa. 136, 31 Atl. 987. ■^Gibson v. National Park Bank, 98 N. Y. 87 (possession of check payable to order of possessor, explainable by evidence of fiduciary capacity). For other illustrative cases, see note to Commercial Bank v. Burgwyn (N. C.) 17 L.R.A. 326. 776 BRIEF ON FACTS. 3 See Deliveey. And see note to Commercial Bank v. Burgwyn (N. C.) n L.E.A. 327. As to the rights of a holder of negotiable paper transferred after maturity, see cases reviewed in note to Young Men's Christian Asso. Gymnasium Co. V. Roekford Nat. Bank (111.) 46 L.R.A. 753 et seq. 4 Brown v. Taylor, 32 Gratt. 135, overruled, in effect, by Bell v. Moon, 70 Va. 341. (If A writes an obligation to B on the fly leaf of a book be- longing to C the paper belongs to C, but this fact, even in addition to the possession, is no evidence that the obligation belongs to C.) But an executor's possession of unindorsed negotiable paper in terms paya- ble to the order of the testator is evidence of ownership. Scoville v. Landon, 50 N. Y. 686. And in Martin v. Martin, 174 111. 371, 51 N. E. 691, it is held that posses- sion of an unindorsed note is prima facie evidence of ownersliip \n tlie holder, notwithstanding that it is payable to the order of a third person. 3. Hearsay. Xeither general reputation, nor evidence of whose the thing ■was called in the family/ is competent as tending to show own- ership, unless in connection with evidence bringing the fact home specifically to the person against whom it is offered. 1 Curtis V. Packer, 4 N. Y. Week. Dig. 12; Panty v. Wahle. 16 N. Y. ^Veek. Dig. 462; Stevens v. William Deering & Co. 6 S. D. 200, 60 N. W. 730 (talk and conversation of a family, all living together, that one of the members owned certain property, incompetent), 'the title to engines cannot be proved by evidence of general reputation as to who owns them. Louisville & N. Terminal Co. v. Jacobs, 109 Tenn. 727, 61 L.E.A. 188, 72 S. W. 954. 4. Marks, signs, etc. The existence of the usual indicia, such as brands upon cat- tle'^ (if recorded), log marks,^ marks upon packages of goods, ^ and inscriptions of names on signboards,* is competent as tending to show possession and ownership. They may be proved by one who has read them, without pro- ducing the thing itself.^ 1 The general rule is that a cattle brand is admissible as evidence of own- ership, only when it has been recorded. Territory v. Smith, 12 X. M. 229, 78 Pac. 42; State v. Dunn, 13 Idaho, 9, 88 Pac. 235; Brill v, Christy, 7 Ariz. 217, 03 Pac. 757; Chesnut v. People, 21 Colo. 512, 42 OWNEKSHIP. 777 Pac. 656; Allen v. State, 42 Tex. 517; Poag v. State, 40 Tex. 151; and other cases in note in 11 L.R.A. (N.S.) 87. Evidence of marks and brands was held competent in Hurst v. Territory, 16 Okla. 600, 86 Pac. 280, to prove ownership, although such marks and brands were not recorded, as the laws of that territory did not make unrecorded brands incompetent evidence of ownership. And an earmark used by the alleged owner of hogs was held in People V. Bolanger, 71 Cal. 17, 11 Pac. 799, to be some evidence of ownership, although the same had not been recorded. And in State v. Wolfley, 75 Kan. 406, 11 L.R.A. (N.S.) 87, 89 Pac. 1046, 93 Pac. 337, 12 Ann. Cas. 412, it was held that the jury had a right to consider the fact that cattle alleged to have been stolen bore the brand of the complaining witness, as some evidence thaft they were owned by him. And although unrecorded marks and brands may be inadmissible to prove ownership, they are, nevertheless, admissible to establish identity. Brooke v. People, 23 Colo. 375, 48 Pac. 502; State v. Cardelli, 19 Nev. 319, 10 Pac. 433; Poage v. State, 43 Tex. 454; Gregory v. Nunn, — Tex. Civ. App. — . 25 S. W. 1083. In numerous cases, where an alleged theft took place before the brand had been recorded, it has been held that while, under the law of Texas, the record of such brand would not be admissible of itself on the ques- tion of ownership, it would be admissible in connection with other evi- dence tending to prove the ownership. Priesmuth v. State, 1 Tex. App. 480; Spinks v. State, 8 Tex. App. 125; Harvey v. State, 21 Tex. App. 178, 17 S. W. 158. That the properly recorded brand upon the cow was admissible to prove the ownership of a calf was decided in Dickson v. Territory, 6 Ariz. 199, 56 Pac. 971. In Debord v. Johnson, 11 Colo. App. 402, 53 Pac. 255, it was held that the recorded brand was only prima facie evidence, which might be re- butted by proof that the owner of the brand had received the cow in question from the true owner for pasturage. And in Dawson v. Susong, 1 Heisk. 243, it was held that the brand of the United States, when shown to have been made upon horses by officers of the Army, had no other effect than to furnish prima facie evidence that the government had possession of the property as a claimant, and, of itself, communicated no title. And to the same effect were Peoples v. Devault, 11 Heisk. 431 ; Plummer v. Newdigate, 2 Duv. 3, 87 Am. Dec. 479; Richardson v. Tipton, 2 Bush, 202. To show mistake in brand, evidence is competent that by accident brands are sometimes inverted, which may give the character used a different significance or value. Boren v. State, 23 Tex. App. 28, 4 S. W. 463. 2 Watson V. E. E. Naugle Tie Co. 148 Mich. 675, 112 N. W. 752. S Taylor v. United States, 3 How. 197, 11 L. ed. 559 (on a question of fraudulent importation of goods, an invoice of other goods entered at T78 BRIEF OIT FACTS. another port, but marked like those seized, is proper to strengthen the evidence of the true ownership of packages with this mark ) . 4 Smith v. Axe, 14 Pa. Co. Ct. 532. And see Abbott, Tr. Ev. 2d ed. 735. s Criminal Trial Brief. 5. Entries in account. The entries in the account of the alleged possessor or owner are not competent in his own favor, as evidence of ownership or possession/ unless made as part of the res gestce of an act already properly in evidence, or otherwise regularly proved in connection with testimony of a witness.* 1 Brown v. Thurber, 58 How. Pr. 95. 2 See AccMUNTS. 6. Source of ownership. a. In general. — Where ownership is directly involved, evi- dence of sale and delivery to the alleged owner by one who was in possession raises a legal presumption of ownership,^ in the absence of anything to impair the presumption of the sel- ler's ownership or power to sell, arising from his possession.^ If the sale was on execution,* or attachment,* the process must be proved, and, as against a party to the action, is enough.^ As against a stranger the judgment must be proved.* 1 McKeage v. Hanover F. Ins. Co. 81 N. Y. 38, 37 Am. Rep. 471, with note, affirming 16 Hun, 239 (movable fixtures sold by one in possession of them and of the realty) ; Holbrook v. New Jersey Zinc Co. 57 N. Y. 616 (transfer of stock). As to ownership as dependent on instalment sales, see note to Marvin Safe Co. V. Emanuel, 21 Abb. N. C. 189; and on conditional sales, Puffer v. Reeve, 15 Abb. N. C. 394, note. 2 Atkins V. Hosley, 3 Thomp. & C. 322 (judgment against seller competent to disprove his title). 3 Yates V. St. John, 12 Wend. 74. s. P. Dane v. Mallory, 16 Barb. 46. 4 Goodman v. Moss, 64 Miss. 303, 1 So. 241. 5 Yates V. St. John, 12 Wend. 74. « Ibid. h. Producing document. — To prove a bill of sale* or mort- gage* as the source of title, the instrument must be produced or a foundation laid for secondary evidence. OWNEESHIP. 779 Otherwise of a bill of parcels or receipt accompanying an oral sale.^ 1 Dunn V. Hewitt, 2 Denio, 637. Otherwise, however, where tlie controversy is not between parties to the bill of sale, and the fact of ownership is only collaterally involved. Archer v. Hooper, 1]9 N. C. 581, 20 S. E. 143. 2 George v. Toll, 39 How. Pr. 497, s. p. Bray v. Flicklinger, 69 Iowa, 167, 28 N. W. 492. 3 Abbott, Tr. Ev. 623. 7. Continuance. The presumption that a fact shown once to have existed con- tinues, applies to ownership.^ iHagar v. Clark, 78 N. Y. 45, reversing 12 Hun, 524 (general owner of ship presumed to continue such during voyage under charter party) ; , Fry V. Bennett, 28 N. Y. 324, affirming 3 Bosw. 200 (proprietor of a newspaper in 1848 and 1849 presumed to continue such in 1851 ) ; Chapman v. Taylor, 136 N. Y. 663, 32 N. E. 1063; Simon v. Richard, 42 La. Ann. 842, 8 So. 629; Paige v. Broadfoot, 100 Ala. 610, 13 So. 426; Laubenheimer v. Bach, C. & Co. 19 Mont. 177, 47 Pac. 803; Bar- ron V. Burrill, 86 Me. 72, 29 Atl. 938; Laubenheimer v. Bach, 19 Mont. 177, 47 Pac. 803. And see cases reviewed in note to Huss v. Hochhausen (N. Y.) 12 L.R.A. 620. Proof of title by deed on a certain day raises a presumption of title a month later. Badger Lumber Co. v. Muehlebach, 109 Mo. App. 646, 83 S. W. 546. But the owner of land at a particular time cannot be presumed to have been its owner at a time one or two years before. Gibson v. Clark, 131 Iowa, 325, 108 N. W. 527. 780 BRIEF ON PACTS. PATERJSriTT. Inspection. As to whetlier, on an issue of paternity, tiie court should allow the child to be shown to the jury, the decisions are not harmonious. Some of the courts allow it to be done,* irrespec- tive of the child's age.^ Others have, however, refused to do so when the child was a mere infant,^ but allowed it to be done if the child had attained an age when its features had assumed some degree of maturity and permanency.* Still others go to the ex- tent of excluding the child, irrespective of its age.° 1 It is allowed for the purpose of having the jury by inspection trace any possible resemblance between the child and its alleged father, the court proceeding on the theory that any such resemblance, if traceable, is relevant to the issue, and the best evidence of it is produced by an inspection. Scott v. Donovan, 153 Mass. 378, 20 N. j;. 871; Gaunt v. State, 50 N. J. L. 490, 14 Atl. 600; Crow v. Jordan, 49 Ohio St. 655, 32 N. E. 750. And that, although taken by itself, proof of such re- semblance would be insufficient to establish paternity, it clearly is a circumstance to be considered in connection with other facts tending to prove the issue on which the jury are to pass. Finnegan v. Dugan, 14 Allen, 197 (where the judge's charge that the jury might consider whether there was any resemblance between the child, who was in court, and the defendant, was upheld). And the same court, in Eddy V. Gray, 4 Allen, 435, sustained a ruling rejecting testimony upon the same subject, upon the ground that it did not come within the rule of expert testimony. In State v. Woodruff, 67 N. C. 89, the charge of the court that the resem- blance of a child to its alleged father was relevant was held good. And in State v. Horton, 100 N". C. 443, 6 S. E. 238, a prosecution for seduction, the child was exhibited to the jury on the theory that the resemblance traceable was corroborative of the fact of sexual inter- course between the prosecutrix and the defendant. In Jones v. Jones, 45 Md. 144, the court permitted the jury to judge as to a personal resemblance, but not to hear testimony on that subject, on the ground that where the parties are before the jury whatever resemblance there is will be directly apparent, capable of being traced by the jurors themselves; but to permit third persons to give their opinions would be raising a, class of experts where opinions would mislead. In the New York cases which prohibit testimony upon resemblances the question of inspection by the jury does not arise. But in Petrie v. Howe, 4 Thomp. & C. 85, the court, in rejecting testimony, says: "If PATERXITY. 781 this species of physiological evidence is admissible, ... it should not be covertly given." In that case, which was for crim. con., the court had received testimony as to the color of the hair of plaintiff's other children, the illegitimate child having hair of a different color. In Gilmanton v. Ham, 38 N. H. 108, counsel commented on the resemblance of the child to defendant, and his right to do so was sustained on the ground that the matter was relevant and the parties before the jury. See also People v. Wing, 115 Mich. 698, 74 N. W. 179. 2 Scott V. Donovan, 153 Mass. 378, 26 N. E. 871, and cases cited (its youth going rather to the weight of the evidence). 3 State V. Harvey, 112 Iowa, 416, 52 L.R.A. 500, 84 Am. St. Rep. 350, 84 N. W. 535 (child nine months old) ; Overlook v. Hall, 81 Me. 348, 17 Atl. 169 (child six months old) ; Clark v. Bradstreet, 80 Me. 454, 15 Atl. 56 (child six weeks old, a well-considered case in which many cases are collated and classified). And in Copeland v. State, — Tex. Crim. Eep. — , 40 S. W. 589, the profert of a child six weeks old was held to have been properly refused, in the absence of any offer to prove a, resemblance as to features. 4 Shorten v. Judd, 56 Kan. 43, 42 Pac. 337. Even though the comparison is to be made with a photograph of the putative father, who is dead. Ibid. Thus, an infant two years old may be exhibited to the jury (State v. Smith, 54 Iowa, 104, 37 Am. Rep. 192, 6 N. W. 153), while an infant three months old cannot (State v. Danforth, 48 Iowa, 45, 30 Am. Rep. 387). This discrimination was disapproved in 22 Alb. L. J. 43; and in Gaunt v. State, 50 N. J. L. 490, 14 Atl. 600, was said to rest "upon a physio- logical notion adopted by the court, which can scarcely find justifica- tion as a rule of evidence." 5 Robnett v. People, 16 111. App. 299 ; Hanawalt v. State, 64 Wis. 84, 54 Am. Rep. 588, 24 N. W. 489. In Ingram v. State ex rel. Mcintosh, 24 Neb. 33, 37 N. W. 943, the prose- cuting attorney's request that the prosecutrix turn the child's face to the jury for inspection was denied by the court, and the child at once removed from the jury's presence. In Risk V. State ex rel. Vestal, 19 Ind. 152, a child three months old was put in evidence, but the court held that, as there had been no objec- tion to the evidence, the jury had a right to consider it. In Reitz v. State ex rel. Holden, 33 Ind. 187, while showing the child was regarded as improper, the error was cured by the court charging the jury that they must regard only the oral evidence on the question of resemblance. In La Matt v. State ex rel. Lucas, 128 Ind. 123, 27 N. E. 346, while this question was not directly involved, it was held that any misconduct of the jury in inspecting the child during a, recess of court was not ground for new trial, where the court subsequently instructed the jury that they must consider only the oral testimony given. 782 BEIEF ON FACTS, PAYMENT. 1. Receipts. 2. Entry in bank books. 3. Burden of proof. 4. Presumption. a. From possession of instrument, b. From lapse of time. 5. Oral evidence to vary receipt. For other points, see Abbott, Tr. Ev.; Accotrirrs. 1, Receipts. Payment may be proved by exchange of receipts or setting off one debt against another without passing cash.' But as against third persons, the general rule is that an ordinary re- ceipt is not evidence of payment, and that direct evidence of payment must be given by the person giving the receipt.^ Cas- es exist, however, where a receipt by a third party may be ' competent evidence in connection with other facts, as where the person to whom the payment is made is pointed out by law, as in case of the payment of taxes to a public officer ; and so when the person to whom the payment is to be made is des- ignated by the contract of the defendant, as in case of an order cm the plaintiff in favor of such person.' It has been held that the receipt in a deed for the purchase money paid is not evi- dence of payment as against third persons, but only as against parties to the deed or persons deriving title from the grantor.* 1 See James v. Cowing, 82 N. Y. 449, reversing 17 Hun, 256; Spargo's Case, L. R. 8 Ch. 407, 412 ; The Heinrich Bjorn, 49 L. T. N. S. 405 ; Brant v. Ehlen, 59 Md. 1; Holeomb v. Campbell, 42 Hun, 398. Contra: Of mere set-off when relied on to satisfy statute of frauds. Mattice v. Allen, 3 Abb. App. Dee. 248, reversing 33 Barb. 543 ; Walrath v. Richie, 5 Lans. 362. 2 Ellison V. Albright, 41 Neb. 93, 29 L.R.A. 737, 59 N. W. 703 ; Cutbush v. Gilbert, 4 Serg. & R. 551; Ferris chief, to give evidence to rebut matter which his adversary avows an intention of relying on.* But he is not required to do so.'' If he does so he makes it part of his case, and further evi- dence on the point is not of right allowable in rebuttal.' iDunn V. People, 29 y. Y. r,2;i, Sfi Am. Dec. 319 (the avowal here was in answer to a qucsiion put by the .judgfi) : Jones v. New York, N. H. & H. E. Co. 20 R. I. 210, 37 Atl. 1033; Vork v. Pease, 2 Gray, 282. And see Civil Trial Brief, 3d ed. 158. 2 Dodge V. Dunham, 41 Ind. 186; Bancroft v. Sheehan, 21 Hun, 550. 3 Casey v. Le Roy, 38 Cal. 697; Dugan v. Anderson, 36 Md. 567, 588, 11 Am. Rep. 509. EEGULAEITY. See also Fobgotten Fact; Official Chabactee akd Acts. Bank business. The presumption of regularity applies, after the lapse of a considerable time, to sustain an inference that the duties of bank officers have been performed and business done in accord- ance with the custom and course of business of the bank.* 1 Knickerbocker L. Ins. Co. v. Pendleton, 115 U. S. 339, 344, 29 L. ed. 432, 8 Sup. Ct. Rep. 74, 816 BEIEF ON FACTS. EESCISSIOlSr. Delay. Delay in rescinding is an election to affirm.* 1 Strong V. Strong, 102 N. Y. 69, 5 N. E. 799. As to rescission of contracts generally, see the cases collected in note to Metropolitan Elev. E. Co. v. Manhattan E. Co. 14 Abb. N. C. 301; and in notes in 30 L.E.A. 33, 1 L.E.A. 826, 6 L.E.A. 503, 9 L.E.A. 607, 17 L.-E.A. 779; 33 L.11.A. 721, and 21 L.R.A.(N.S.) 691. KESIDENCE. 1. What is. 2. Direct testimony. 3. General reputation. 4. Declarations and conduct. 5. Place of business. 6. Absence. 7. Fugitive from justice. 8. Instrument executed out of the jurisdiction. 9. Deposition. 10. Presumption of continuance. 11. Burden of proof. For kindred topics, see Absence; Domicil; Fictitious Persons. 1. What is. The decree of fixity of abode requisite to constitute resi- dence varies according to the legal purpose for which the word is used.^ 1 Residence for purpose of qualification to hold office. People v. Piatt, 46 Hun, 394. EESIDENCE. 817 Residence for purpose of mailing notice of protest. Lee v. Boston, 2 Gray, 484. Residence for purpose of taxation. Borland v. Boston, 132 Mass. 89, 93, 95, 42 Am. Rep. 424; Tazewell County v. Davenport, 40 111. 197. Residence for purpose of securing a homestead. Skinner v. Hall, 69 Cal. 195, 10 Pac. 406 (sleeping alone in a house one night held suflBcient evidence ) . Residence for purpose of identification of one of several persons of the same name. Abbott, Tr. Ev. 2d ed. 116, 117. Residence entitling children to privileges of public schools. See note to Com. ex rel. Fry v. Upper Swatara Twp. School Directors (Pa.) 26 L.R.A. 581. Residence for purpose of divorce suit. See cases collected in notes in 16 L.R.A. 497, 12 L.E.A.(N.S.) 1100; and 28 L.R.A.(N.S.) 992. Nonresidence for purpose of civil arrest. Frost v. Brisbin, 19 Wend. 11, 13, 32 Am. Dec. 423. Nonresidence for purpose of attachment and garnishment. Cases collected in notes in 19 L.E.A. 577 and 1 L.R.A.(N.S.) 778. Nonresidence within statute of limitations. Cases collected in note to Kerwin v. Sabin (Minn.) 17 L.R.A. 225. 2. Direct testimony. A witness may testify to the fact of a person's residence; and even negatively, by showing that the witness had adequate acquaintance with the place, and that the person could not have lived there without the witness knowing it.^ 1 Cavendish v. Troy, 41 Vt. 108. Compare Negative and Fictitious Pee- SONS. Residence being largely a matter of intention, a person's positive testimony that he removed from one state into another with the intention, ever since continued, of becoming a resident of the latter state, is not over- come by circumstances raising mere suspicions that his testimony is false, but presenting no tangible facts upon which that conclusion can rest. Albee v. Albee, 141 111. 550, 31 N. E. 153. 3. General reputation. Actual residence cannot be proved by reputation or family traditions.* 1 Londonderry y. Andover, 28 Vt. 416 (settlement of a pauper) ; Wheeler V. Webster, 1 E. D. Smith, 1; Pfister v. Dascey, 68 Cal. 572, 10 Pac. 117 (homestead law) ; East Tennessee, V. & G. E. Co. v. Thompson, 94 Ala. 636, 10 So. 280; Albion v. Maole Lake, 71 Minn. 603, 74 N. Abb. Facts — 52 818 BE.IEF ON FACTS. W. 282; Ferguson v. Wright, 113 N. C. 537, 18 S. E. 691. And see Filham v. Howe, 60 Vt. 361, 14 Atl. 652. So, evidence that witness had inquired at the address given as that of a person's residence, and had been told by some person on the premises that he did not live there, is inadmissible as hearsay. Globe v. Eauch, 21 Misc. 48, 46 N. Y. Supp. 889. 4. Declarations and conduct. Residence is determined by a consideration of acts and in- tention combined.' Hence, if the facts are not decisive, evi- dence of declarations and of conduct manifesting intent is freely received.^ But declarations of intent, and acts relevant only for the purpose of manifesting intent, are not competent if the evi- dence as to abode is adequate and decisive to the contrary.^ 1 Hindman's Appeal, 85 Pa. 466. 2 Belmont v. Vinalhaven, 82 Me. 524, 20 Atl. 89; Follweller v. Lutz, 112 Pa. 107, 2 Atl. 721 (testimony that county line passes through the house lets in evidence that the party voted and took out a license in one county, and not in the other, — the question being in which county his assignment must be recorded) ; Etna v. Brewer, 78 Me. 377, 5 Atl. 884 (declarations as to intent in going to another town competent on the question of settlement under the poor laws) ; Fulham v. Howe, 60 Vt. 351, 14 Atl. 652 (evidence of having voted in another state, the laws of which are proved to have required a residence there of one year before voting, competent in action against tax collector). See also note in Van Dresor v. King (Pa.) 75 Am. Dec. 652, Citing Austin V. Swank, 9 Ind. 109 (declarations as to intent on leaving house com- petent to show whether declarant was thereafter a resident householder within the rule as to levy of execution). And see Abbott, Tr. Ev. 2d ed. 138-138. But declarations of intention merely, unaccompanied by any act which is admissible in evidence, are not competent. Filham v. Howe, 62 Vt. 386, 20 Atl. 101, and cases cited. 3 Pickering v. Cambridge, 144 Mass. 244, 10 N. E. 827. 5. Place of business. The fact of long continued business at a particular place is, in absence of evidence to the contrary, competent to raise the presumption of residence.' But a person having only a place BBSIDENCE. 819 of business here, and. living in another state, is a nonresi- dent." 1 Dederioh v. McAllister, 49 How. Pr. 351 (so held to show that the defend- ant resided out of the state, within the exception to the statute of limitation) . Otherwise of evidence as to one's mere intention to engage in business, Fulham v. Howe, 60 Vt. 351, 14 Atl. 652. 2 Wallace v. Castle, 68 N. Y. 370 (so held to uphold an attachment, Criti- cising Towner v. Church, 2 Abb. Pr. 299 ) . 6. Absence. Where there is no proof that a debtor had a domicil in the state, on proof of absence he will be deemed a nonresident.^ 1 Harden v. Palmer, 2 E. D. Smith, 172, 178. (Woodruff, J, so held, to show defendant was within the exception of the statute of limitations.) 7. Fugitive from justice. The fact that a person convicted of a crime has escajjed from the sheriff, and remains concealed, raises a presumption that he has gone out of the state to remain, in order to place himself beyond the reach of the sheriff, and therefore tends to prove that he is a nonresident.' iNew York v. Genet, 4 Hun, 487, affirmed in 63 N. Y. 646 (so held in or- der to sustain an attachment). See also Wolf v. Shenandoah Nat. Bank, 84 Iowa, 138, 50 N. W. 561 (so holding, although the absentee was only accused of crime ) . 8. Instrument executed out of the jurisdiction. Where a contract is executed out of the state, the presump- tion is that the parties thereto are nonresidents, and, in absence of evidence to the contrary, continue so.' 1 Mayer v. Friedman, 7 Hun, 218, affirmed on this opinion, in 69 N. Y. 608 (holding^ that a defendant in a suit under such a contract, in order to avail himself of the statute of limitations, must show that he has been within the state for six years). See also Fox v. Moyer, 54 N. Y. 125 (holding that an execution issued on a judgmnet in an action on a note in the county where the note was made and sued upon had been presumptively issued where the judgment debtor resided) ; Nichols v. 820 BEIEF ON PACTS. Mase, 94 N. Y. 160, 166 (this principle was applied as sanctioning the presumption that chattels covered by a mortgage executed without the state were within the jurisdiction where the mortgage was executed) ; Wilcox V. Hunt, 13 Pet. 378, 10 L. ed. 209 (holding that under the law of Louisiana there is a like presumption as to a subscribing witness). 9. Deposition. Deponent presumed resident of place where he was exam- ined, for purpose of letting in his deposition.* And the certificate of the officer who took the deposition is sufficient to show prima facie the residence of the witness.^ 1 People V. Hadden, 3 Denio, 220. 2 Patapsco Ins. Co. v. Southgate, 5 Pet. 604, 8 L. ed. 243. 10. Presumption of continuance. The fact of residence without the state at a given time raises a presumption, in absence of evidence to the contrary, that it continued thereafter.* 1 Nixon V. Palmer, 10 Barb. 175 (the reversal in 8 N. Y. 398, was wholly on another point) ; Clough v. Kyne, 40 111. App. 234; Botna Valley State Bank v. Silver City Bank, 87 Iowa, 479, 54 N. W. 472; Hatch v. Smith, 6 Kan. App. 645, 49 Pac. 698, 50 Pac. 952. See also Re Nichols, 54 N. Y. 62 (so held for the purpose of taxation) ; Eixford v. Miller, 49 Vt. 319 (statute of limitations; proof that defendant resided in an- other state when the cause of action accrued, raising a presumption that he continued to reside there). Residence is presumed to continue until a change is established. State ex rel. Phelps v. Jackson, 79 Vt. 504, 8 L.R.A.(N.S.) 1245, 65 Atl. 657; Re Colton, 129 Iowa, 542, 105 N. W. 1008; Re Russell, 84 N. J. Eq. 313, 53 Atl. 169. 11. Burden of proof. When the actual residence of a party is in question, sli^t evidence is enough to shift the burden of proof upon him as being a fact peculiarly within his own knowledge.* 1 Dederich v. McAllister, 49 How. Pr. 351. SATISFACTION. REVIVAL. 821 Allegation of succession. An order of court substituting a third person in the place of an original party, with the papers on which it is made, is conclusive evidence of succession and revival,* even without formal allegation in the pleadings ; ^ unless the order requires further pleading. The objection that the cause of action did not survive, or was not assignable, will still be available on the trial.' 1 Smith V. Zalinski, 94 N. Y. 519, affirming 26 Hun, 225 (order made on default) ; Smith v. Eathbun, 22 Hun, 150 (order, alleged by amendment of complaint, and not denied). 2 Lawrence v. Saratoga Lake R. Co. 36 Hun, 467 ( order made on stipula- tion admitting succession ) . 3 Arthur v. Griswold, 60 N. Y. 143. Contra: Underbill v. Crawford, 29 Barb. 664, 18 How. Pr. 112 (where, however, on other grounds, motion for new trial was granted, after judgment for plaintiff on verdict. SATISFACTION". 1. Burden of proof. 2. Stipulation to satisfy. 3. Variance. 1. Burden of proof. One who alleges the failure of an engine to satisfy a war- ranty thereon sustains the burden of proof. ^ 1 Erie City Iron Works v. Dempsey, 77 111. App. 667. 822 BRIEF OH" FACTS. Beckett v. Gridley, 67 Minn. 37, 69 N. W. 622, holds that the purchaser of an article under a warranty that it will fulfil certain conditions, and requiring the vendor, if these conditions are not fulfilled, to re- place the article with another of equal value or return the notes given for it, has, in an action on the notes, the burden of showing the breach of the conditions, and that the vendor had notice thereof, and an op- portunity either to replace the article or return the notes. 2. Stipulation to satisfy. Under a contract for a thing to be done to the satisfaction of a party, evidence that performance was such as he ought in reason to be satisfied with is enough/ unless the object of the contract is to gratify taste, serve personal convenience, or satisfy individual preference, in which case it is enough to show that he was not satisfied.' But it may be shown that he was satisfied, and that his expression of dissatisfaction was a pretense.* » Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387, 54 Am. Rep. 709, 4 N. E. 749. See note on this subject to Doll v. Noble, 18 Abb. N. C. 48. McGuire v. Eapid City, 6 Dak. 346, 5 L.R.A. 752, 43 N. W. 706, holds the certificate of an engineer sufficient evidence of the performance of a contract requiring the work to be done to his satisfaction to be testi- fied to by a writing or certificate under his hand. But as to whether or not a party has declared himself satisfied, a letter from the contractor containing statements of third persons express- ing unanimous satisfaction with the work is not competent. Such opinions are not only irrelevant to the issue, but they are calculated to prejudice the jury. The minds of the jury would naturally be di- verted from the real issue, and they might well be inclined to discredit his evidence of dissatisfaction, or at least regard the objections to the work as captious and unreasonable, in the face of opinions declaring the work to be of the highest merit. Thomas v. Gage, 141 N. Y. 506, 36 N. E. 385. s Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387, 54 Am. Eep. 709, 4 N. E. 749; Campbell Printing Press Co. v. Thorp, 36 Fed. 414; Abst. s. c, 39 Alb. L. J. 135, 137. 3 Baltimore & O. E. Co. v. Brydon, 65 Md. 198, 57 Am. Rep. 318, 3 Atl. 306. 3. Variance. Evidence that an article had been made to work to the pur- chaser's satisfaction at one time, but that it afterwards failed SEALS. 823 so to do, does not support an allegation that vendor had agreed to furnish a new article if the first one did not work to the purchaser's satisfaction.* iMcCormick Harvesting Mach. Co. v. Gustafson, 54 Neb. 276, 74 N. W. 576. SEALS. 1. Material. 2. Judicial notice. 3. Direct testimony. 4. Affixing. 5. One for several. 6. Record and omission. 7. Corporate seal. 1. Material. An impression directly on paper without wax, etc., satisfies the common-law rule.* 1 Pierce v. Indseth, 106 U. S. 546, 27 L. ed. 254, 1 Sup. Ct. Rep. 418 (the seal in this case was that of a foreign notary) ; Hunt v. Hunt, — N. J. Eq. — , 9 Atl. 690 (seal of court) ; Pillow v. Roberts, 13 Hew. 472, 14 L. ed. 228 (holding that the fact that a public officer in another state did not use wax in affixing a seal was sufficient, in the absence of evidence to the contrary, to show that wax was not there required ) . See also cases collected in note to Hacker's Appeal (Pa.) 1 L.R.A. 861. The traditional rule that wax or other adhesive substance is necessary has been superseded in most states by statutes allowing the impression to be on paper; but the New York statute expressly allowing official 824 BEIEF ON FACTS. and judicial seals to be directly on paper (3 Kev. Stat. 5th ed., § 76, p. 687) has recently been amended by omitting judicial seal (N. Y. Code Civ. Proc. § 960). By N. Y. Laws 1848, p. 305, chap. 197, § 1; same stat. 3 Eev. Stat. 5th ed. p. 687, § 77, a, corporate seal may be directly on the paper. But in New York a bit of paper affixed with mucilage satisfies the com- mon-law rule, even as a private seal. Gillespie v. Brooks, 2 Redf. 349; Van Bokkelen v. Taylor, 62 N. Y. 105, reversing 2 Hun, 138, 4 Thomp. & C. 422 (revenue stamp so used). "In all cases where a seal is necessary by law to any commission, process, or other instrument provided for by the laws of Congress, it shall be lawful to affix the proper seal by making an impression therewith di- rectly on the paper to which such seal is necessary; which shall be as valid as if made on wax or other adhesive substance." U. S. Rev. Stat. § 6. As to seals on writs or process, and the eflfect of their issuance without a seal of the officer, see cases collected in note to Choate v. Spencer (Mont.) 20 L.R.A. 424. As to seals on writs of venire from grand jury, see cases collected in note to State ex rel. Dunn v. Noyes (Wis.) 27 L.E.A. 779. As to the necessity of seal on assignment of lease, see cases collected in note to Chicago Attachment Co. v. Davis Sewing Mach. Co. (111.) 15 L.E.A. 754. Seals to commercial paper, as affecting negotiability, see cases collected in notes to D. M. Osborne & Co. v. Hubbard (Or.) 11 L.E.A. 833; Chase Nat. Bank v. Faurot (N. Y.) 35 L.E.A. 605. 2. Judicial notice. The court will take judicial notice of the seals of notaries public, even in foreign countries, for they are oiBcers recog- nized by the commercial law of the world ; * and of the seals of courts of record of other states.^ But courts will not take notice of the seals of private corporations, nor do such seals prove themselves.' 1 Pierce v. Indseth, 106 U. S. 546, 27 L. ed. 254, 1 Sup. Ct. Eep. 418 ; The Gallego, 30 Fed. 271; McDonald v. People, 123 111. App. 346, affirmed in 222 111. 325, 78 N. E. 609. ZHinton v. Life Ins. Co. 116 N. C. 22, 21 S. E. 201. 3Griffing Bros. Co. v. Winfield, 53 Fla. 589, 43 So. 687. 3. Direct testimony. Any witness familiar with the device of a corporate or other peculiar seal may testify to its identity. But testimony SEALS. 82i of a witness that he had been told by corporate officers, etc.,. that it was the seal, is not enough.'' 1 Abbott, Tr. Ev. 2d ed. 44. Susquehanna Bridge & Bank Co. v. General Ins. Co. 3 Md. 305, 56 Am. Dec. 740, with note (held, afBrming judgment, that proof of the seal of at corporation is unnecessary, when it is shown to have been affixed by the proper officer or agent of the company; as here, to a mortgage tO' secure a debt of the company ) . Evidence that neither the officer who signed, nor the custodian of the seal, had knowledge of its being affixed, casts the burden on the holder of the instrument to prove that it was affixed rightfully. Koehler v.. Black Eiver Falls Iron Co. 2 Black, 715, 17 L. ed. 339. 4. AfSxing. Delivery without a seal, although the instrument is expressed to be attested by "my hand and seal," does not imply authority to affix a seal.* 1 Metropolitan L. Ins. Co. v. McCoy, 41 Hun, 142. But the statement raises a presumption that the party affixed the seaU Hammond v. Gordon, 93 Mo. 223, 6 S. W. 93 ; Ryan v. Cooke, 172 111. 302, 50 N. E. 213. The presumption is the same in the absence of any mention of the mode of authentication. Abbott, Tr. Ev. 2d ed. 483.. Otherwise if signing is mentioned, and sealing is not. Ibid. 5. One for several. To invoke the rule that one seal will do for several signers,* there must be evidence that they authorized it or intended to- adopt it.'^ 1 Ludlow V. Simond, 2 Cai. Cas. 1, 7, 42, 55, 2 Am. Rep. 291. 2 Citizens' Bldg. Asso. v. Cummings, 45 Ohio St. 664, 16 N. E. 841 ; Vaa Alstyne v. Van Slyck, 10 Barb. 383 ; Parr v. Greenbush, 42 Hun, 232 (holding seal affixed after signatures by the trustees a good seal of the- village if it had no peculiar seal ) . The intent may be shown by any evidence competent to show intent. At- lantic Dock Co. V. Leavitt, 54 N. Y. 35, 13 Am. Rep. 556, affirming 50 Barb. 136. A wife will be presumed to have adopted the seal opposite the signature of her husband to an instrument, in the absence of evidence to the con- trary, where her name is signed thereto, but is not followed by a seat. Warder, B. & G. Co. v. Stewart, 2 Marv. (Del.) 275, 36 Atl. 88. 826 BEIEE ON FACTS. 6. Record and omission. Seal provable by record.^ Omission from record, how sup- plied in evidence.^ iFillett T. Rose, 3 McLean, 332, Fed. Cas. No. 4,900; Gillespie v. Reed, 3 McLean, 377, Fed. Cas. No. 5,436; Abbott, Tr. Ev. 2d ed. 626. 2 Todd V. Union Dime Sav. Inst. 20 Abb. N. C. 270; Campbell v. Laclede Gaslight Co. 119 U. S. 445, 30 L. ed. 459, 7 Sup. Ct. Rep. 278. 7. Corporate seal. The fact that the common seal of a corporation is affixed to an instrument is prima facie evidence that it was so affixed by proper avithority.'' 1 Bowers v. Hechtman, 45 Minn. 238, 47 N. W. 792 ; Yanish v. Pioneer Fuel Co. 64 Minn. 175, 66 N. W. 198 ; Ruffner Bros. v. Welton Coal & Salt Co. 36 W. Va. 244, 15 S. E. 48; Mullanphy Sav. Bank v. Sliott, 135 III. 655, 26 N. E. 640 ; Ellison v. Branstrator, 153 Ind. 146, 54 N. E. 433. A seal attached to a corporate instrument is presumed to be the seal of the corporation, and to have been affixed by its authority. Bliss v. Harris, 38 Colo. 72, 87 Pao. 1076. SEPAEATION. For kindred topics, see Absence; Deseetion. Competency of testimony of husband and wife. When a wife is competent to testify to the fact of separation, and has done so, she is competent to testify to conversation had at the time between herself and husband as part of the res gestce to show the ground then assigned for it.* 1 Baker v. Baker, 16 Abb. N. C. 293. BIGNATUEB. 827 SEEVICE. Affidavits not competent. The service of a notice, when required to be proved on a trial, must be proved by common-law evidence; and affidavits are not competent unless made so by some statute.^ 1 People ex rel. Vogler v. Walsh, 87 N. Y. 481 ; Stroner v. Prokop, 30 111. App. 56. Affidavit competent when the affiant is dead or insane, or his personal at- tendance cannot be compelled, with due diligence. N. Y. Code Civ. Proc. § 927. SIGNATTJKE. 1. Document produced on notice. 2. Authority to sign. a. Declarations. b. Previous recognition by principal. 3. Oral evidence. For kindred topics, see Agency; Designation; Genuineness; Handwrit- ing; Makk; Name. 1. Document produced on notice. When one party, pursuant to notice, produces an instru- ment to which he is a party, and under which he claims a beneficial interest, the other party need not, before putting in evidence, prove the signatures thereto, or call the subscribing witnesses for that purpose.^ 1 White V. Miller, 7 Hun, 427, reversed on other grounds in 71 N. Y. 118 See generally, on the question of proof of signature by an attesting witness, the cases collected in note to Garrett v. Hanshue (Ohio) 35 L.R.A. 321. 828 BRIEB' ON FACTS. 2. Authority to sign. a. Declarations. — In a conflict of evidence as to whether a person was authorized to sign the name of another, evidence of the previous declarations of the latter manifesting his in- tent, is competent.^ 1 Thompson v. First Nat. Bank, 111 U. S. 529, 28 L. ed. 507, 4 Sup. Ct. Rep. 689; Woodcock v. Johnson, 36 Minn. 217, 30 N. W. 894. Com- pare Lane v. Lockridge, 17 Ky. L. Rep. 1082, 33 S. W. 730 (holding testimony that in conversation a husband had said that he had au- thority in writing from his wife to transact all her business and to sign her name for that purpose, and that in the opinion of the witness the wife was near enough to have heard what was said, incompetent to show authority in the husband to sign a note in the wife's name). See further, on this question. Agency, §§ 6 et seq. i. Previous recognition by principal. — Evidence as to the extent to which a principal had previously recognized the signature of his agent as his own is competent as tending to show authority as to the particular signature in question.^ 1 Conroe v. Case, 79 Wis. 338, 48 N. W. 480. 3. Oral evidence. Oral evidence is competent to show that a party signing was to be liable personally in a particular character, and that when signing for principals he did so on his own behalf as well ; ' to show that one signing in a representative character did not intend to be personally liable,* or that a person signing indi- vidually was in fact signing for a principal.' 1 Young V. Sehuler, L. R. 11 Q. B. Div. 651, 49 L. T. N. S. 546. 8 Schmittler v. Simon, 114 N. Y. 176, 21 N. E. 162 ; Simanton v. Vliet, 61 N. J. L. 595, 40 Atl. 595; Kline v. Bank of Tescott, 50 Kan. 91, 31 Pae. 688; Keidan v. Winegar, 95 Mich. 430, 54 N. W. 901, s. o., with note, 20 L.R.A. 705. Compare Mathews v. Dubuque Mattress Co. 87 Iowa, 246, 54 N. W. 225. s. c, with note, 19 L.R.A. 676, where it is held that oral evidence is not admissible to show that a person who signed a note in a form showing an individual liability intended only to bind a corporation of which he was president, although he added to his signature a description of his official character, and that such a note reading, "We promise, etc," — is not made ambiguous so as to admit oral evidence, by the fact that it is made payable at the office SIGNS AND SIGNALS. 829 of the corporation, and ends with the name of the corporation after the words "Accepted March 21, 1889." See Abbott, Tr. Ev. 2d ed. 360-367. 3 Powell V. Wade, 109 Ala. 95, 19 So. 500; Southern P. Co. v. Von Schmidt Dredge Co. 118 Cal. 368, 50 Pac. 650, and cases cited; Atkinson v. Bennett, 103 Ga. 508, 30 S. E. 599, and cases cited. And see cases cited in notes to Matthews v. Dubuque Mattress Co. (Iowa) 19 L.K.A. 676, and Keidau v. Winegar (Mich.) 20 L.R.A. 705. SIGNS AND SIGITALS. 1. Understanding of witness. ■2. Dying declarations. For kindred topics, see Convebsation ; Feelings; Intent; Negative. 1, Understanding of witness. A witness cannot testify to his understanding of what an- other person meant by signs, such as a nod, when it amounts only to the opinion of the witness, and not to a statement of fact.^ 1 Rillwagen v. RoUwagen, 3 Hun, 121, 5 Thomp. & C. 402, affirming 48 How. Pr. 289, affirmed in 63 N. Y. 504, without discussing the question (motions of testator in executing will). But see Messner v. People, 45 N. Y. 1 (holding that a witness cannot testify to significance of outcry ) . '2. Dying declarations. Alleged declarations consisting of a nod of the head in an- swer to questions are incompetent as dying declarations, in the absence of evidence of sufficient consciousness to comprehend "the questions asked.' ^McBride v. People, 5 Colo. App. 91, 37 Pac. 953. _As to admissibility generally of dying declarations communicated by signs, see note in 56 L.R.A. 427, and ante, Dying Declabations, II., 7, note 3. 830 BEIEF ON FACTS. SPEED. 1. Direct testimony. 2. Comparison by combining witnesses. 3. Declarations as part of the res gestce. For kindred topics, see Distance; Fine; Quantity. 1. Direct testimony. It is a general rule, as to whicli there is little conflict, that any person of ordinary intelligence who has had an opportunity for observation is competent to testify as to the rate of speed of a moving object. This rule has been held applicable to the speed of railroad trains,^ hand cars,^ street cars,^ and auto- mobiles,* and other road vehicles.^ 1 Salter v. Utica & B. River E. Co. 59 N. Y. 631, reversing 3 Thomp. & C. 800; Guggenheim v. Lake Shore & M. S. E. Co. 66 Mich. 150, 33 N. W. 161; Hoppe v. Chicago, M. & St. P. E. Co. 61 Wis. 357, 21 N. W. 227; Alabama G. S. E. Co. v. Hall, 105 Ala. 599, 17 So. 176; Eckington & S. H. E. Co. V. Hunter, 6 App. D. C. 287 ; Chicago, B. & Q. R. Co. v. Gunderson, 174 111. 495, 51 N. E. 70S; Walsh v. Missouri P. E. Co. 102 Mo. 582, 14 S. W. 873, 15 S. W. 757; Louisville, N. A. & C. E. Co. v. Hendricks, 128 Ind. 462, 28 N. E. 58; Waldele v. New York C. & H. E. R. Co. 4 App. Div. 549, 38 N. Y. Supp. 1009 ; Galveston, H. & S. A. R. Co. V. Sullivan, — Tex. Civ. App. — , 42 S. W. 568; Chipman v. Union P. R. Co. 12 Utah, 68, 41 Pac. 562; Sears v. Seattle Consol. Street E. Co. 6 Wash. 227, 33 Pac. 389, 1081; Bracken v. Pennsylvania E. Co. 222 Pa. 410, 34 L.E.A.(N.S.) 790, 71 Atl. 926; and other cases in note in 34 L.E.A.(N.S.) 790. And the fact that the witness does not know how many feet or rods there are in a mile does not affect the competency of his testimony. Ward V. Chicago, St. P. M. & 0. E. Co. 85 Wis. 601, 55 N. W. 771. So, testimony of a railway employee injured by being thrown from a hand- car alleged to have been suddenly stopped by the foreman without warning while it was moving rapidly, that the car was running faster than a man could run, is admissible as an expression of an opinion based upon observation, and should not be excluded for indefiniteness. Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 412, 11 So. 262. And one accustomed to seeing and hearing trains pass, and claiming to be able to tell their relative rate of speed by the sound, was held com- petent to testify whether a train which he heard was going fast or slow, in Missouri P. E. Co. v. Hildebrand, 52 Kan. 284, 34 Pac 738, although he did not see it. SPEED. 831 But a person injured by a, train strilcing him in the night-time, without seeing it, is not competent to testify to its speed, where his opinion is based merely upon liis guess at the distance he was thrown and the force of the blow on his shoulder. Northern P. K. Co. v. Hayes, 30 C. C. A. 576, 59 U. S. App. 711, 87 Fed. 129. Plaintiff in an action to recover damages resulting from a collision between her carriage and a street car may testify that the speed of the ear looked fast to her; it is a fact, and not an opinion. Montgomery Street R. Co. v. Shanks, 339 Ala. 489, 37 So. 166. 8 Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 412, 11 So. 262 ; Evans- ville & T. H. R. Co. v. Crist, 116 Ind. 446, 2 L.R.A. 450, 9 Am. St. Rep. 865, 19 N. E. 310; Ha worth v. Kansas City Southern R. Co. 94 Mo. App. 215, 68 S. W. 111. But in Mott V. Detroit, G. H. & M. R. Co. 120 Mich. 127, 79 N. W. 3, a, witness who testified that he had observed bodies move and in motion a good many times, and had seen horses trot and run, was held in- competent to testify that a hand car was going a given number of miles per hour, since he was not shown to have had sufficient exper- ience to give his opinion. » Aston v. St. Louis Transit Co. 105 Mo. App. 226, 79 S. W. 9.99; Augusta R. & Electric Co. v. Arthur, 3 Ga. App. 513, 60 S. E. 213; Metropoli- tan R. Co. V. Blick, 22 App. D. C. 194; Chicago City R. Co. v. Rohe, 118 HI. App. 322; Kern v. Des Moines City R. Co. 141 Iowa, 620, US N. W. 451; United R. & Electric Co. v. Ward, 113 Md. 649, 77 Atl. 593; Ehrman v. Nassau Electric Co. 23 App. Div. 21, 48 N. Y. Supp. 379; City & Suburban R. Co. v. Cooper, 32 App. D. C. 555; Garduhn V. Union R. Co. 50 App. Div. 602, 64 N. Y. Supp. 210; Hanlon v. Milwaukee Electric R. & Light Co. 118 Wis. 210, 95 N. W. 100; Sears V. Seattle Consol. Street R. Co. 6 Wash. 227, 33 Pac. 389, 1081 ; Teck- lenburg v. Everett R. Light & Water Co. 59 Wash. 384, 34 L.R.A. (N.S.) 784, 109 Pac. 1036; Omaha Street R. Co. v. Larson, 70 Neb. 591, 97 N. W. 824. In order to testify as to the speed of street cars, however, a witness must have made some observation of the speed. Garduhn v. Union R. Co. 50 App. Div. 602, 64 N. Y. Supp. 210. And see other cases in note in 34 L.R.A. (N.S.) 784. 4 Wolfe v. Ives, 83 Conn. 174, 76 Atl. 526, 19 Ann. Cas. 752; Miller v. Jenness, 84 Kan. 608, 34 L.R.A.(N.S.) 782, 114 Pac. 1052; Neidy v. Littlejohn, 146 Iowa, 355, 125 N. W. 198; Johnson v. Coey, 142 111. App. 147, affirmed in 237 111. 88, 21 L.R.A.(N.S.) 81, 86 N. E. 678, on other grounds; Zoltovski v. Gzella, 159 Mich. 620, 26 L.R.A. (N.S.) 435, 134 Am. St. Rep. 752, 124 N. W. 527; Hough v. St. Louis Car Co. 146 Mo. App. 58, 123 S. W. 83; State v. Watson, 216 Mo. 420, 115 S. W. 1011; Dugan v. Arthurs, 230 Pa. 299, 34 L.R.A.(N.S.) 778, 79 Atl. 626. 532 BRIEF ON FACTS. SNesbit v. Crosby, 74 Conn. 554, 51 Atl. 550; United Breweries Co. v. O'Donnell, 124 111. App. 24, affirmed on other grounds in 221 111. 334, 77 N. E. 547; Brown v. Swanton, 69 Vt. 53, 37 Atl. 280 (horse and wagon); Myers v. MeFarland, 31 Pa. Co. Ct. 49 (bicycle). 2. Comparison by combining witnesses. To show speed at a given place, evidence of speed within a reasonable distance, and that it was unchecked meanwhile, is ■competent.^ 1 Louisville, N". A. & C. E. Co. v. Jones, 108 Ind. 551, 9 N. E. 476; St. Louis S. W. E. Co. V. Bishop, 14 Tex. Civ. App. 504, 37 S. W. 764. For other illustrations of this principle, see Robbins v. Springfield Street E. Co. 165 Mass. 30, 42 N. E. 334 (holding evidence of the usual rate at which an electric car moves admissible, where there is other testi- mony that at the time of the accident the car was going at the usual rate of speed) ; Laufer v. Bridgeport Traction Co. 68 Conn. 475, 37 L.E.A. 533, 37 Atl. 379 (evidence that a car was running very rapidly at other places on the same trip, competent to support a claim that at the time of an accident it was behind schedule time, and trying to make up). And see FoiiGOTTEN Fact; Quality; Quantity. 3. Declarations as part of the res gestae. Declarations of an engineer of a railroad train, stating the speed at which the train was running at the time of the disaster, made, not at the time and as part of the accident, but after- wards and independently (however brief the time intervening), are not competent evidence as part of the res gestce} 1 Vicksburg & M. E. Co. v. O'Brien, 119 U. S. 99, 30 L. ed. 299, 7 Sup. Ct. Eep. 118 (collecting cases on the res gestce of an accident). And see Alabama G. S. E. Co. v. Hill, 90 Ala. 71, 9 L.E.A. 442, 8 So. 90 (an action for injuries suffered by a passenger from derailment of the train, where a declaration by another passenger to the conductor, made before the accident, indicating his opinion that the engineer was run- ning faster than usual, was held incompetent). And so, statements by an engineer, made on a former trial, as to the speed of his engine at the time a horse was struck, are not admissible against the company upon a, subsequent trial, as the declarations of an agent made at the time he was engaged about the business of his principal. Denver & R. G. E. Co. v. Watson, 6 Colo. App. 429, 40 Pac. 778. STATUS. 833 STATUS. Competency of judgment. Competency of judgment against one not a party.* lEiaenlord v. Eisenlord, 49 Hun, 340, 2 N. Y. Supp. 123 (judgment in seduction competent against oiTspring) ; Wottrich v. Freeman, 71 N. Y. 601 (judgment in divorce competent in crim. con.) ; Davis v. Wood, ] Wlieat. 6, 4 L. ed. 22 (freedom). In an action by heirs to recover tlieir motlier's community interest in land where defendant claims under an execution sale against their father, a divorce between the father and mother, granted by the courts of an- other state, is admissible to show that the marriage relation was dis- solved before the contracting of the debt on which the execution sale was had, the wife's interest not being subject to sale for such debt. Henry v. Forshee, 84 Tex. 185, 19 S. W. 381. A certified copy of a decree of divorce is competent evidence of the fact of divorce, and is properly submitted to the jury, although it may be necessary to introduce the other proceedings of the court or the plead- ings in the cause. Eve v. Rodgers, 12 Ind. App. 623, 40 N. E. 25. In an action for slander of a married woman a decree of divorce granted her from her first husband is not competent as evidence in her own be- half. Claypool V. Claypool, 65 111. App. 446. Upon a, trial of two persons for living in open adultery a decree of di- vorce between one of the defendants and her husband is not admis- sible. Crane v. People, 65 111. App. 492. For conclusiveness, as to third persons, of decree in suit for divorce or annulment of marriage, as to facts adjudicated, as distinguished from status established, see note in 38 L.R.A. (N.S.) 559. Abb. Facts — 53. 834 BRIEF ON FACTS. SUNEISE AI^D SUITSET. Almanac. An almanac may be used to ascertain the time at -which the sun rose or set at a specified date.* 1 The controversy is as to whether it is evidence, as held in Munshovrer v. State, 55 Md. 11, 39 Am. Eep. 414, or only the means of refreshing the knowledge of the court or jurj', as held in Case v. Perew, 46 Hun, 57, and People v. Chee Kee, 61 Cal. 404, cited in Ashworth v. Kittridge- (Mass.) 59 Am. Dec. 185, note, holding it therefore no error to ex- clude formal proof. The courts will take judicial notice of the time of the rising or setting of the sun on any given day, and may consult the almanac, where such question is material, not strictly as evidence, but for the purpose- of refreshing the memory of the court and jury. MonteBes v. Metro- politan Street E. Co. 77 App. Div. 493, 78 N. Y. Supp. 1059; Beards- ley V. Irving, 81 Conn. 489, 71 Atl. 580. SUEETYSHIP. 1. Oral evidence. 2. Direct testimony. 3. Burden of proof. 1. Oral evidence. As between the parties who are apparently either principals- or sureties, the question of suretyship in a written instrument is open to parol proof.* 1 Preston v. Gould, 64 Iowa, 44, 19 N. W. 834; Deeper v. Paschal, 70 Mo. App. 117, and cases cited; Saunders v. Pruntey, 2 Va. Dec. 469, 26 S. E. 584. See also cases collected in note to Keidan v. Winegar STJEPBISE. 835 (Mich.) 20 L.R.A. 710, in which not only are there cases illustrating the rule as between the obligors, but also cases illustrating the rule as to the competency of oral evidence to show the relation of the ob- ligors as against a holder or payee who has notice of the facts. And see Abbott, Tr. Ev. 2d ed. 313. 2. Direct testimony. One of the makers of a note may testify directly as to whetlier he signed it as principal maker or as surety,^ 1 Druly V. Johnson, 21 111. App. 267. 3. Burden of proof. The burden is upon one who appears as a principal to show that in fact he is merely a surety, if he relies on that fact.' 1 Howie V. Edwards, 113 Ala. 187, 20 So. 956; Jennison v. Sceets, 60 111. App. 607. The president of a bank will be presumed to have indorsed notes payable to the bank with the intention of becoming surety to the bank, where he made such indorsement before the notes were discounted, and the discount was made in reliance on the indorsement and after the matu- rity of the notes, and he conceded his liability after some dispute, and consented to the application on such notes of money belonging to him in possession of the bank. Brown v. Mechanics' & T. Bank, 16 App. Div. 207, 44 N. Y. Supp. 645. SURPRISE. See cases on surprise at the trial, collected in note to Smith v. Clews, in 14 Abb. N. C. 469. See also Civil Trial Brief, 3d ed. pp. 21 et seq. Right to object. Counsel have a right to rely upon the adversary's pleading as indicating the case he is to meet; and recovery upon proof of a somewhat difFerent cause of action or defense cannot be sus- 836 BRIEF ON FACTS. tained by amending or disregarding the variance against ob- jection, unless the objector is allowed adequate opportunity to amend also if necessary, and to meet the amended allega- tions against him by proof.^ The right to require proof that the objector has been misled is waived if not claimed at the trial.* 1 Romeyn v. Sickles, 108 N. Y. 650, 15 N. E. 698. 2 Griggs V. Howe, 2 Abb. App. Dec. 291, 31 Barb. 100, SURRENDER. 1. Verbal. 2. Payment as raising presumption. For kindred topics, see Abandonment; Assignment; Claim; Deliveby; Possession. 1. Verbal. Express oral consent to the retaking of possession of land, though not given on the land, is, followed by retaking and continuance of possession, without objection, equivalent to ac- tual or symbolic surrender.' 1 Baumier v. Antiau, 65 Mich. 31, 31 N. W. 888. 2. Payment as raising presumption. Evidence that an obligation has been paid raises a legal pre- sumption that it was surrendered, if it be one which the debtor had a right to require surrender of, as his voucher; otherwise not.* 1 Lyman v. Bank of United States, 12 How. 225, 13 L. ed. 965 (promissory notes). BUEVIVOESHIP. SUEVIVOESHIP. 837 Presumptions and burden of proof. By the Roman law there was no presumption that those whc perished in the same disaster all died coinstantaneously. H all the dead were over sixty years of age, the youngest was pre- sumed to have survived. If all were under fifteen, then the eldest was deemed to have lived the longest. And as between the sexes in the same class, the presumption of survivorship was in favor of the male.' In France, by the Code ISTapoleon, substantially the same presumptions were adopted as providing for "succession in the order of nature." * And the substance of the French law on this subject was incorporated in the Code of Louisiana.' In California also this rule has been adopted into the statute law.* At common law, however, there is no presumption of law, in the absence of all evidence, arising from age or sex, as to the survivorship amongst persons whose death was occasioned by the same cause, nor is there any presumption that they all died at the same time. The burden of proof is on the party asserting survivorship.* iDig. lib. 34, title 5; De rebus dublis, I. 9, §§ 1, 3; Id. 1, ]6, 22, 23; JXenochius de Presumpt, lib. 1, Quaest. x. n. 8, 9; 1 Greenl. Ev. chap. 4, § 29; note in 51 L.R.A. 863. 2 Duranton, Cours de Droit Franeaia, torn. vi. pp. 39, 42, 43, 48, 67, 69, 2 Kent, Com. 435, and note; 1 Greenl. Ev. chap. 4, § 29. 3 Louisiana Code, arts. 930-933. 4Cal. Code Civ. Proc. § 1963, subd. 40. Where two persons perished in the same calamity, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, survivorship is presumed from the probabilities resulting from strength, age, and sex according to certain rules, one of which is, that if both be over forty-five and under sixty, and the sexes be difi^erent, the male is presumed to have survived. Sanders v. Simcich, 65 Cal. 50, 2 Pac. 741. In Robinson v. Gallier, 2 Woods, 178, Fed. Cas. No. 11,951, however. It was held that the presumption of law as to survivorship prescribed by the Civil Code of the state, which agrees in substance with the Roman law and Code Napoleon, did not apply except where the persons were entitled to inherit from one another, and in the ab- 838 BEIEF ON PACTS. sence of circumstances of the fact; but that the burden was on the party asserting the survivorship, in accordance with the com- mon-lavp rule. 5 This is the settled doctrine in both England and the United States. Broughton v. Randall, 2 Cro. Eliz. 502, Noy, 64 (the earliest English case ) ; Underwood v. Wing, 19 Beav. 459, 1 Jur. N. S. 159, 4 De G. M. & G. 633, 3 Week. Rep. 228; Pell v. Ball, Cheves Eq. 99; Coye V. Leach, 8 Met. 371, 41 Am. Dec. 518; United States Casualty Co. V. Kacer, 169 Mo. 301, 58 L.R.A. 436, 92 Am. St. Rep. 641, 69 S. W. 370; Newell v. Nichols, 12 Hun, 604, 75 N. Y. 78, 31 Am. Rep. 424; Re Willbor, 20 R. I. 126, 37 Atl. 634, and cases collected in an exhaustive note to same case, 51 L.R.A. 863. TAMPERING. 1. Right to prove. 2. Contradiction. As to the presumption against the destroyer (spoliator) of evidence, see cases collected in note to Hay v. Peterson (Wyo.) 34 L.R.A. 581. 1, Right to prove. It is competent to prove that the adverse party has tampered with witnesses ^ or a jnror.^ But merely that a party's agent tampered with evidence is not enough, unless it is shown to have been done in the course of employment.' And a party charged with tampering has a right to testify in explanation.* IGulerette v. McKinley, 27 Hun, 320 (offer to bribe); Chicago City R. Co. V. McMahon, 103 HI. 485, 42 Am. Rep. 29; Egan v. Bowker, 5 Allen, 449 (subornation of a deposition competent though deposition be not used) ; Brown v. By am, 65 Iowa, 374, 21 N. W. 684; Snell V. Bray, 56 Wis. 156, 14 N. W. 14 (letters urging testimony in speci- fied way, or warning against aiding adversary) ; People v. Marion, TELEGRAMS. 839 29 Mieh. 31; Williams v. Dickenson, 28 Fla. 90, 9 So. 847. And it is unnecessary to cross-examine the witness first. Martin v. Barnes, 7 Wis. 239. « People V. Marion, 29 Mich. 31. 3 Green v. Woodbury, 48 Vt. 5; Chicago City E. Co. v. MeMahon, 103 111. 485, 42 Am. Eep. 29; Myers v. Trice, 86 Va. 835, 11 S. E. 428. ■4 Homer v. Everett, 91 N. Y. 641. Compare Lynch v. Coffin, 131 Mass. 311 (saying the judge may, in his discretion, allow explanation). '2. Contradiction. On a question of tampering one may contradict an answer given by his own witness on the adversary's cross-examination ; ^ or an answer given by the adversary's witness on one's own ■cross-examination. * 1 Comstock V. Handy, 23 N. Y. Week. Dig. 547. 3 Lewis V. Steiger, 68 Cal. 200, 8 Pao. 884. TELEGEAMS. 1. Not privileged. 2. Best and secondary evidence. 3. Presumption of delivery. 4. Connected correspondence. For kindred topics, see Letteks; Message. 1. Not privileged. Telegrams are not privileged or confidential communications. The agent or operator of the company may be compelled to pro- duce them by subpcena duces tecum ; ^ and, if the absence of the paper is accounted for, may give oral evidence of con- tents.^ lEx parte Brown, 72 Mo. 83, 37 Am. Rep. 426; Ex parte Gould, 60 Tex. Crim. Rep. 442, 31 L.R.A.(N.S.) 835, 132 S. W. 364. 8 State V. Litchfield, 58 Me. 267. 840 BEIEF ON FACTS. 2. Best and secondary evidence. In general, where the course of communication is such that the message as delivered to the telegraph company binds either party, that paper is primary evidence as against such party. Where such that the message as received binds either party, that paper is primary evidence, as against him.* In either case there must be preliminary evidence of the agency of the company transmitting the message; and of this fact the original itself in the handwriting of the sender or that of his agent is the primary evidence.^ If its absence is ac- counted for, indirect evidence of authority or ratification is enough.^ 1 Oregon S. S. Co. v. Otis, 14 Abb. N. C. 388, 394 (with note and cases there collected on all the various aspects of offering telegrams as evidence. The case was affirmed in 100 N. Y. 446, 53 Am. Eep. 221, 3 N. E. 485) ; Nickerson v. Spindell, 164 Mass. 25, 41 N. E. 105. In Anheuser-Busch Brewing Asso. v. Hutmacher, 127 111. 652, 4 L.E.A. 575, 21 N. E. 626, thet rule is well stated thus: When the person to whom a telegram is sent takes the risk of its transmission, or is the employer of the telegraph company, the message delivered to the operator is the original, and must be produced as the best evi- dence; but when the person sending the message takes the initiative, so that the telegraph company is to be regarded as his agent, the original is the message actually delivered at the end of the line, and that is primary evidence of the contents of the message sent. The best evidence of the contents of a lost or destroyed telegram is the original filed with the telegraph company. Young v. People, 221 111. 51, 77 N. E. 536. 8 Oregon S. S. Co. v. Otis, 100 N. Y. 446, 53 Am. Rep. 221, 3 N. E. 485; Culver V. Warren, 36 Kan. 391, 13 Pac. 577. Testimony to establish the contents of a telegram should not be admitted, in the absence of evidence showing its loss or destruction. Prather v. Wilkens, 68 Tex. 187, 4 S. W. 252; American U. Teleg. Co. v. Daugh- tery, 89 Ala. 191, 7 So. 660; Yavapai County v. O'Neill, 3 Ariz. 363, 29 Pac. 430; Magie v. Herman, 50 Minn. 424, 36 Am. St. Rep. 660, 52 N. W. 909. But it may be where the telegram is without the jurisdiction of the court, and an effort has been made to find it. People V. Seaman, 107 Mich. 348, 65 N. W. 203. For cases showing sufficiency of proof to let in secondary evidence, see Newton v. Donnelly, 9 Ind. App. 359, 36 N. E. 769 ; Fox v. Pedigo, 19 Ky. L. Rep. 271, 40 S. W. 249; Lindauer v. Meyberg, 27 Mo. App.. 181. TELEGEAMS. 841 8 Oregon S. S. Co. v. Otis, 100 N. Y. 446, 53 Am. Eep. 221, 3 N. E. 485 (holding that omission to reply to a letter reciting the telegram sent, and dealings in compliance with other telegrams of the same series, were enough as against a party who, when examined as a witness, did not deny having sent the telegrams) ; Culver v. Warren, 36 Kan. 391, 13 Pac. 517 (holding part payment of the demand arising out of the transaction sufficient evidence of agency of the company ) . 3. Presumption of delivery. Where a message to be transmitted by telegraph is shown to have been delivered to the operator, and it is proved by such operator at the telegraph office that all messages received vs^ere duly transmitted, there is a presumption, arising from the regular course of business, that the message was received by the person to whom it was sent.^ iCom. V. Jeffries, 7 Allen, 548, 563, 83 Am. Dee. 712 (criminal case; false pretenses) ; Eppinger v. Scott, 112 Cal. 369, 373, 44 Pac. 723, 42 Pac. 301; Long-Bell Lumber Co. v. Nyman, 145 Mich. 477, 116 Am. St. Rep. 310, 108 N. W. 1019. Upon proof of delivery of a telegraphic message for transmission, the presumption arises that the message reached its destination. Ore- gon S. S. Co. V. Otis, 100 N. Y. 446, 53 Am. Eep. 221, 3 N. E. 485 (civil case) . 4. Connected correspondence. Eelevant letters and telegrams, which the party on testifying as a witness does not deny that he received or sent, niay be received if they are a connected part of a correspondence other- wise already in evidence.^ 1 Oregon S. S. Co. v. Otis, 100 N. Y. 446, 53 Am. Rep. 221, 3 N. E. 485. And see cases collected in note to Western Twine Co. v. Wright (S. D.) 44 L.R.A. 438. .'842 BRIEF ON FACTS. TELEPHOlsrE. 1. Judicial notice. 2. Eecognition of speaker. "3. Other evidence of identity. 4. Necessity of identification of speaker. ■5. Agency of operator. For kindred topics, see Admissions; Conveesation ; Message. 1. Judicial notice. Court will take judicial notice that telephones have become an ordinary medium of communication and interchange of thought.'^ 1 Globe Printing Co. v. Stahl, 23 Mo. App. 451. •2. Recognition of speaker. The receiver or hearer of a message through the telephone may testify to the identity of the person speaking through the instrument, if he had had previous conversations with him through the instrument and otherwise, and at the time of the ■conversation in question recognized his voice through the in- strument.' J People V. Ward, 3 N. Y. Crim. Rep. 483, 511, Barrett, J. (This decision has been criticised, 28 Alb. L. J. 422, 28 Cent. L. J. 362; but in view of the previous conversance with the voice, the competency of the evidence is analogous to that of the testimony to handwriting re- ceived from one who has corresponded with the alleged writer, or received letters from him.) On the question of necessity and sufficiency of identification as a founda- tion for admission in evidence of conversation by telephone, see note in 6 L.R.A.(N.S.) 1180. '3. Other evidence of identity. The identity of a speaker may be proved by other evidence than the testimony of the one whom he addressed through the telephone.' 1 Davis V. Walter, 70 Iowa, 465, 30 N. W, 804. TELEPHONE. 843 4. Necessity of identification of speaker. If a person or corporation has a telephone instrument in his place of business, the response received through it, to a com- munication addressed to him, is competent against him without ■evidence to identify the speaker.* 1 Wolfe V. Missouri P. R. Co. 97 Mo. 473, 3 L.R.A. 539, 11 S. W. 49, abstr. s. c, 17 Wash. L. Rep. 309; Reed v. Burlington, C. R. & N. R. Co. 72 Iowa, 166, 33 N. W. 451; Guest v. Hannibal & St. J. R. Co. 77 Mo. App. 258; Western U. Teleg. Co. v. Rowell, 153 Ala. 295, 45 So. 73. And see cases collected in notes in 17 L.R.A. 440 and 6 L.R.A. (N.S.) 1180, also Abbott, Trial Brief, 3d ed. chap. xvi. § 61. For the same principle, see § 8, Agency. (As to what evidence there should be of being in communication with his office, — query.) 5. Agency of operator. If it be shown that the person serving as operator at the telephone was requested or authorized by the speaker to act for him in speaking through the instrument, or in hearing the message through the instrument and repeating it to the re- ceiver, he may be regarded as the agent of the speaker, and his interpretation of the message to the receiver binds the speaker, and may be proved by any witness who heard it.* i Sullivan v. Kuykendall, 82 Ky. 483, 56 Am. Rep. 901; Oskamp v. Gads- den, 35 Neb. 7, 17 L.R.A. 440, 52 N. W. 718. The decision in the first case has been criticised. 22 Cent. L. J. 34. But if questionable in any point it is as to assuming that the operator was the agent of the speaker, rather than of the receiver in that case. 844 BEIEF ON FACTS. TENDER 1. Burden of proof. 2. Actual production. 3. Offer and readiness. 4. Having in sight. 5. "Willingness" to pay. 6. Waiver. 7. Place of tender. 1. Burden of proof. The defense of tender must not only be pleaded, but be proved with definiteness.'' 1 Fisk V. Casey, 119 Cal. 643, 51 Pac. 1077. 2. Actual production. Actual production of money is necessary.* An oifer to pay is not the equivalent of a tender.^ 1 Strong V. Blake, 46 Barb. 227 (holding that it is not enough for the debtor to have the money in his pocket) ; Bakeman v. Pooler, 15 Wend. 637. But Smith v. Old Dominion Bldg. & L. Asso. 119 N. C. 257, 26 S. E. 40, holds the production of money unnecessary where the debtor stated to his creditor that he then had the money in a bank located in the same building with the creditor, that he was ready to pay the sum tendered, but that the creditor declined to receive it. 2 Lewis V. Mott, 36 N. Y. 395. 3. Offer and readiness. Offer and readiness to pay by check to be certified is suffi- cient as against a party who, without intimating that he would deliver on payment, departs and does not return.* 1 Currie v. White, 45 N. Y. 822. But a certified check is not ordinarily the equivalent of money, for the purpose of a tender. Hobbs v. Ray, 29 Ky. L. Rep. 999, 96 S. W. 589. 4. Having in sight. Having in sight is enough if there is a practical refusal to 1 Lawrence v. Miller, 86 N. Y. 137 (deed). TENDER. 845 5. "Willingness" to pay. It is not error to refuse to allow a debtor to testify that he was "willing" to pay or that he communicated his willingness to the creditor.' 1 risk V. Casey, 119 Cal. 643, 51 Pac. 1077. 6. Waiver. Evidence of a waiver of a tender is admissible under an allegation of tender.' 1 Smitli V. Old Dominion Bldg. & L. Asso. 119 N. C. 257, 26 S. E. 40. 7. Place of tender. Evidence to show an oral agreement fixing the place for tender of money contemplated by a contemporaneous written agreement which does not definitely fix the place is compe- tent.' 1 Jamison v. Keith, 19 Ky. L. Eep. 511, 41 S. W. 33. In the absence of such an oral agreement, however, it would be the duty of the debtor to seek out the creditor. Ibid. 846 BEIEF ON" FACTS. TESTIMOlsrY (Given m Foembe Peocebdisg). 1. Proof of former testimony generally. 2. Deposition. 3. Identity of parties and subject-matter. 4. Opportunity to cross-examine. 5. Oath. 6. Proof of death, absence, or disqualification. 7. Diligence in procuring deposition. 8. Impeachment of witness. 9. Proving by stenographer reading notes. 10. Proving by official reporter's transcript. 11. Proving by witness who heard. 12. Proving by bill of exceptions. See the rules as applied in criminal causes, fully stated in Criminal Trial Brief; see also Admissions; Forgotten Fact. 1. Proof of former testimony generally. An exception to the rule rejecting hearsay evidence is the testimony of a witness given in a former proceeding between the same parties,'' who has since died,^ or who is dead for all purposes of evidence, — as where he cannot be found after dili- gent search, or resides in a place beyond the jurisdiction of the court,^ or who, for some reason, has become disqualified to testify as a witness.* 1 The statement that the admission of the testimony of a witness on a former trial is an exception to the rule rejecting hearsay evidence was criticised in Minneapolis Mill Co. v. Minneapolis & St. L. R. Co. ,51 Minn. 304, 53 N. W. 639, as being inaccurate. "The chief objec- tions," said the court in that ease, "to hearsay evidence, are the want of the sanction of an oath, and of any opportunity to cross-examine, neither of which applies to testimony given on a. former trial. The real objection to such evidence is that it is only the testimony of someone else as to what the witness swore to on a former trial; and before the day of official reporters in our trial courts the accuracy or completeness of such evidence depended entirely upon the fallible memory of those who heard the witness testify. It can be readily seen why, under such circumstances, courts were disinclined to admit such evidence except in cases of actual necessity. But where the words of a witness as they come from his lips are taken down in full by an official court stenographer, this objection does not apply. We TESTIM0N1. 84T do not see why such testimony is not as satisfactory and reliable as- a new deposition, taken out of the state, would be." • Louisville & N. R. Co. v. Whitley County Ct. 20 ICy. L. Eep. 1367, 49' S. W. 332; Price v. Lawson, 74 Md. 499, 22 Atl. 206; Lewis v. Roulo,. 93 Mich. 475, 53 N. W. 622; Lee v. Hill, 87 Va. 497, 12 S. E. 1052; Carrico v. West Virginia C. & P. R. Co. 39 W. Va. 86, 24 L.R.A. 50, 19 S. E. 571. And so by statute in some states. N. Y. Code Civ. Proc. § 830; Cal. Code Civ. Proc. § 1.870, subd. 8. Compare other local Codes and statutes. The application of the New York statute- is not confined to testimony taken upon the trial immediately pre- ceding the one in which the testimony is oiTered. But the testimony may be read on any subsequent trial of the action. Koehler v. Scheider, 16 Daly, 235, 10 N. Y. Supp. 101. But incompetent testimony, even though admitted without objection on- the former trial, is not competent on a second or subsequent trial.. Garrett v. Weinberg, 54 S. C. 127, 31 S. E. 341. And see cases col- lected in note to Davis v. Kline (Mo.) 2 L.R.A. 78; note to More- house V. Morehouse, 17 Abb. N. C. 421. ' Starkie, in his work on Evidence (page 310), states this as prevailing English rule. In Greenleaf on Evidence (§ 163) the rule is laid down quite as broadly. This, however, has been criticised as too broad by some courts, which' hold that, to make the testimony admissible, it must appear that the witness is dead, insane, or by physical disability at the time of the- trial unable to be examined, or that he is absent by the act or pro- curement of the party against whom the evidence is offered, or that his whereabouts cannot be ascertained, so that by the exercise of dUe- diligence his deposition could not be taken. See 1 Greenl. Ev. § 163, and note; 1 Phil. Ev. 393, and note 114. And see Kirchner v. Laugh- lin, 5 N. M. 365, 23 Pac. 175. See furtlier, § 6, this title. The fact that there had been a second trial on which the witness had also- testified, intervening between the one at which the desired testimony was given and the one at which the testimony is ofi'ered, is no reason- for excluding it. Ord v. Nash, 50 Neb. 335, 69 N. W. 964. But testimony of an absent witness read on the first trial is not competent on a third trial, when on the second trial the issues were materially changed by amendment of the pleadings, and the witness was fully examined thereon. Schindler v. Milwaukee, L. S. & W. R. Co. 87" Mich. 400, 49 N. W. 670. And a party who has tal-cen the deposition of a witness for use on the- trial cannot, on the ground of the witness's absence from the state,, introduce his testimony given on a former trial. Stein v. Swensen, 46 Minn. .360, 49 N. W. 55. 4 Bowie V. Hume, 13 App. D. C. 286; Whitaker v. Marsh, 62 N. H. 477. And it is so provided by statute in some states, N. Y. Code Civ. Proc. § 830. And see eases collected in note to Davis v. Kline (Mo.; 2' L.R.A. 78. 848 BRIEF ON FACTS. If a witness has become incompetent to testify at the second trial of an action on account of the death of the other party to the transaction, because of a statute providing that no person shall be examined as a witness in regard to any personal transaction with a person who has, at the commencement of the examination, deceased, against his per- sonal representative, a transcript of his testimony taken at the former trial, when the other person was living, cannot be admitted, notwith- standing a statutory provision that a transcript of testimony taken upon a trial, when material and competent, shall be admissible on a retrial of the cause. Greenlee v. Mosnat, 136 Iowa, 639, M L.K.A. (N.S.) 488, 111 N. W. 996. See also note to this case in 14 L.R.A. (N.S.) 488, on admissibility, after death of adversary, of testimony or deposition of party given or taken before the former's death and relating to a personal transaction with him. And testimony of a living witness at a former trial cannot be proved at a subsequent trial of the same case, although he is too ill to attend court, if the illness existed at the beginning of the trial, so that, if his evidence was material, an adjournment could have been had until he could be present. McCrorey v. Garrett, 109 Va. 645, 24 L.R.A. (N.S.) 139, 64 S. E. 978. 2. Deposition. The exception is not confined to testimony given orally, but extends to the deposition, otherwise unobjectionable, of an absent or disqualified witness which was read on a former pro- ceeding between the parties.^ 1 Watson V. St. Paul City R. Co. 76 Minn. 358, 79 N. W. 308; Allen v. Chouteau, 102 Mo. 309, 14 S. W. 869; Taylor v. Mallory, 96 Va. 18, 30 S. E. 472; Briggs v. Briggs, 80 Cal. 253, 22 Pac. 334. See also cases collected in note to Davis v. Kline (Mo.) 2 L.R.A. 78; note to Morehouse v. Morehouse, 17 Abb. N. C. 421. And according to Mabe V. Mabe, 122 N. C. .552, 29 S. E. 843, it is competent, even though the witness has testified on the present hearing. In Thornton v. Briton, 144 Pa. 126, 22 Atl. 1048, it was held no abuse of discretion for the court to admit the deposition of a witness eighty- seven years old and confined to his room, instead of enforcing his at- tendance or compelling the taking of a new deposition. The party offering the deposition may offer and read such portions only as are desired, subject to the right of the court to order that all be read at the same time, or to the right of the adverse party to read other relevant and material portions. Watson v. St. Paul City R. Co. 76 Minn. 358, 79 N. W. 308. And see also Ainley v. Manhattan K. Co. 47 Hun, 206; Weeks v. McNulty, 101 Tenn. 495, 43 L.R.A. 185, 48 S. W. 809; Bradford v. Taylor, 74 Tex. 175, 12 S. W. 20. TESTIMONY. 849 But the court cannot of itself separate and admit only that which is corroborative of the witness's present testimony, and exclude that which is not. Mabe v. Mabe, 122 N. C. 552, 29 S. E. 843. 3, Identity of parties and subject-matter. And, in order to be competent, the former proceeding must have been between the same parties, involving the same ques- tions.* IBriggs V. Briggs, 80 Cal. 253, 22 Pac. 334; Choate v. Huff, — Tex. App. — , 18 S. W. 87; Oliver v. Louisville & N. A. R. Co. 17 Ky. L. Rep^ 840, 32 S. W. 759; Fearn v. West Jersey Ferry Co. 143 Pa. 122, 22 Atl. 708 (s. c, with note, 13 L.R.A. 366) ; Varnum v. Hart, 47 Hun, 18 (N. Y. Code Civ. Proc. § 830) ; Marshall v. Hancock, 80 Cal. 82, 22 Pac. 61 (Cal. Code Civ. Proc. § 1870, subd. 8). In Washington Gaslight Co. v. District of Columbia, 161 U. S. 316, 40 L. ed. 712, 16 Sup. Ct. Rep. 564, an action by the District of Columbia against the gaslight company to recover over the proceeds of a judg- ment recovered against the district for personal injuries caused by the alleged negligence of the gaslight company, the testimony of n deceased witness given on the trial between the person injured and the District was allowed to go in on the trial against the company in order to show the subject-matter of the litigation. "Clearly," as was said by the court in that case, "even although it be conceded that the testimony of the witness given on the trial was res inter alios as to the defendant in this action, and was, therefore, not admissible as going to establish substantive facts, yet obviously it was compe- tent for the purpose of throwing light upon the record of the first action, and thus elucidating the determination of the question of what was the subject-matter covered by the judgment rendered in that action." It is matter of no consequence, however, that there were other persons parties to the former action who are not parties to the subsequent action. Allen v. Chouteau, 102 Mo. 309, 14 S. W. 869. 4. Opportunity to cross-examine. It must also appear that the adverse party was present at the proceeding at which the testimony was taken, and permitted to cross-examine the witness.* 1 Jackson v. Crilly, 16 Colo. 103, 26 Pac. 331; Briggs v. Briggs, 80 Cal. 253, 22 Pac. 334. That testimony was taken orally in the probate court contrary to the statute and against the objection of the witness, as to money alleged to belong Abb. Facts — 54. 850 BBIEF ON FACTS. to a decedent's estate and to be in witness's hands, will not prevent its use in a subsequent action against the witness for such money, where he was represented by counsel and no injustice or prejudice appears to have resulted. Lilley v. Mutual Ben. L. Ins. Co. 92 Mich. 153, 52 N. W. 631. A deposition read on a former hearing, which it is desired to use at a subsequent hearing, must have been taken on due and regular notice given as required by law. Behan v. Long, — Tex. Civ. App. — , 30 S. W. 380. 5. Oath. It is essential that it shall also appear that the witness was sworn in the court in which such former hearing was had.' 1 And it is not enough that it appear that he believed at the time he testi- fied that he was swearing. Ford v. State, 97 Ga. 365, 23 S. E. 996. 6. Proof of death, absence, or disqualification. But whether the testimony was given orally or by depo- sition, it must be affirmatively shown that the witness is dead, absent, or has since testifying become disqualified to testify as 1 Louisville & N. R. Co. v. Whitley County Ct. 20 Ky. L. Rep. 1367, 49 S. W. 332; United States v. Cross, 9 Mackey, 365 (exclusion of question asking witness in effect to state his own former testimony, held proper ) , And see cases cited in note 3, § 1, this title. In Spaulding v. Chicago, St. P. & K. C. R. Co. 98 Iowa, 205, 67 N. W. 227, the testimony was admitted on proof that the witness, though diligently searched for,, could not be found. Oral proof that a witness whose testimony on a former trial was taken down in shorthand is beyond the jurisdiction of the court is a sub- stantial compliance with the Kentucky statutes (§ 4643) admitting such testimony upon proper "affidavit." Byrne v. Morel, 20 Ky. L. Rep. 1311, 49 S. W. 193. Failure of a witness, short of mental incapacity, to recollect particular facts, will not justify the introduction of his testimony given on a former trial. Stein v. Swensen, 46 Minn. 360, 49 N. W. 55. And testimony of a. witness given on a former trial is not admissible where he is a resident of the state and has been attached as a witness, although testimony which it is necessary to contradict thereby has been given in surprise. The party should apply for a continuance or postponement. Caldwell v. State, 28 Tex, App. 566, 14 S. W. 122. TESTIMONY. 851 7. Diligence in procuring deposition. As to whether testimony given by a witness on a former pro- ceeding, who is beyond the jurisdiction of the court, but whose whereabouts are xinknown, is admissible irrespective of wheth- er due diligence has been exercised in attempting to procure his deposition, the cases are in conflict.'' 1 Concerning the admissibility of the testimony of a deceased or diaquali-. fied witness given at a formal trial between the same parties, upon the same issue, there is no disagreement among the authorities. See cases this title, pp. 577-8, notes 2 and 4. A number of cases hold that the rule applies also to a witness residing in a state other than that in which the litigation is pending, for the reason that he is as much out of the reach of the process of the court as if he were in fact dead. For example, see Emerson v. Burnett, 11 Colo. App. 86, 52 Pac. 752; Howard v. Patrick, 38 Mich. 795; People v. Devine, 46 Cal. 46; Magill V. Kauffman, 4 Serg. & E. 317, 8 Am. Dec. 713; Omaha v. Jensen, 35 Neb. 68, 52 N. W. 833; Reynolds v. Powers, 96 Ky. 481, 29 S. W. 299; Sneed v. State, 47 Ark. 180, 1 S. W. 68; Minneapolis Mill Co. V. Minneapolis & St. L. R. Co. 51 Minn. 304, 53 N. W. 639; Omaha Street R. Co. v. Elkins, 39 Neb. 480, 58 N. W. 164, and cases cited. On the other hand, there are cases holding that such evidence is admissible only upon a showing tliat after the exercise of due diligence the party offering the evidence has been unable to procure the deposition of the witness; and this view finds support in the decisions of a number of courts whose opinions are entitled to respect. See, for example, Ger- hauser v. North British & Mercantile Ins. Co. 7 Nev. 174; Slusser v. Burlington, 47 Iowa, 300; Berney v. Mitchell, 34 N. J. L. 337; Gas- trell V. Phillips, 64 Miss. 473, 1 So. 729; Cassady v. Trustees of Schools, 105 111. 560; Kirchner v. Laughlin, 5 N. M. 365, 23 Pac. 175. And see Spaulding v. Chicago, St. P. & K. C. R. Co. 98 Iowa, 205, 67 N. W. 227 (where the testimony was admitted on showing that the witness could not be found after a diligent search, and that his whereabouts were unknown ) . 8. Impeachment of witness. Testimony of a witness given on a former proceed/ng is ad- missible to impeach him as a witness at a subsequent trial as to contradictory statements.^ I Tobin v. Jones, 143 Mass. 448, 9 N. E. 804 ; Charlton v. Kelly, 84 C. C. A. 295, 156 Fed. 433, 13 Ann. Cas. 518. See fully on this question Civil Trial Brief (3d ed.) chap, ix., Impeachment of witnesses. 852 BBIEl? ON FACTS. 9. Proving by stenographer reading notes. It is proper to prove the testimony of a witness given on a former proceeding, which has been taken down in shorthand by the official reporter, by having him read such testimony so taken down.^ 1 Minneapolis Mill Co. v. Minneapolis & St. L. E. Co. 51 Minn. 309, 53 N. W. 639 (where the question is discussed at some length) ; Lucker v. Liske, 111 Mich. 683, 70 N. W. 421. Contra: Kirchner v. Laughlin, 5 K. M. 365, 23 Pac. 175 (holding that the New Mexico statute, provid- ing the stenographer's notes shall at the end of each term be deposited in the office of the clerk, does not declare the legal value of such notes as evidence, or change the rule as to the admissibility di evidence, as to what a witness testified to on a former trial) ; Kellogg v. Scheuer- man, 18 Wash. 293, 51 Pac. 344, 52 Pac. 237 (but he may use them to refresh his memory). In Smith v. Hine, 179 Pa. 203, 36 Atl. 222, an official reporter was not allowed to read his notes because he was not sworn as required by Pa. act 3877, § 9. In Bennett v. Syndicate Ins. Co. 43 Minn. 45, 44 N. W. 794, where, after a witness had denied that he had changed his testimony as given upon a previous trial after the stenographer had produced and read his notes in full, which the witness recognized as correct, it was held that all the testimony of the witness taken on the previous trial was admis- sible in support of the claim that he had changed his testimony. In Overtoom v. Chicago & E. I. K. Co. 80 111. App. 515, an action for wrong- ful death from alleged negligence of the railroad company, a stenog- rapher employed by the company, who took notes of the testimony introduced at the coroner's inquest over the body of the deceased, was not allowed to read from those notes, — especially as it did not appear that they were correct, or that they were in the same condition as they were at the close of the inquest. 10. Proving by official reporter's transcript. So, too, the testimony of a witness given on a former pro- ceeding may be proved by a correct transcript thereof as taken down in shorthand and transcribed by the official reporter.^ 1 Emerson v. Burnett, 11 Colo. App. 86, 52 Pac. 752 (where the transcript was admitted to be correct) ; Reese v. Morgan Silver Min. Co. 7 Utali, 489, 54 Pac. 759; Spaulding v. Chicago, St. P. & K. C. R. Co, 08 Iowa, 205, 67 N. W. 227; Omaha v. Jensen, 35 Neb. 68, 52 N. W. 833; Merchants' Nat. Bank v. Stebbins, 10 S. D. 466, 74 N. W. 199, and cases cited; Bridgmau v. Corey, 62 Vt. 1, 20 Atl. 273. Compare TESTIMONY. 853 Chicago, St. P. M. & 0. R. Co. v. Myers, 25 C. C. A. 486, 49 U. S. App. 279, 80 Fed. 361 (following state practice allowing such evidence but holding that the particular transcript in the case was incom- petent because incomplete) ; Mulcahey v. Lake Erie & W. R. Co. 69 Fed. 172 (refusing to follow state practice allowing such evidence). But where the stenographer states that he does not know that he took down the exact words of a witness, but thinks they are substantially what the witness stated, it is proper to refuse to allow them to be read in evidence, but to permit him to refresh his memory from the notes and to testify therefrom. Ellis v. State, 25 Fla. 702, 6 So. 768. And a statement taken down by the stenographer at a former trial was held inadmissible in Adams v. Eddy, — Tex. Civ. App. — , 29 S. W. 180, because he could not testify as to its correctness without his original notes, which he did not have in court. 11. Proving by witness who heard. The stenographer's minutes o£ a trial are not such a record as to constitute the only or primary evidence of testimony desired to be proved on a subsequent trial, unless made so by express statute ; ^ and any person who was present in court and heard the testimony at the former proceeding is competent to testify in respect thereto.^ It is not necesaary-j however, that the witness should be able to state the exact language used ; it is sufficient if he can repeat the substance.^ 1 So by statute in West Virginia (Code 1897, p. 1062, § 3). See Carrico v. West Virginia C. & P. R. Co. 39 W. Va. 86, 24 L.R.A. 50, 19 S. E. 571. Compare other local Codes and statutes for similar provisions. SNasanowitz v. Hanf, 17 Misc. 157, 39 N. Y. Supp. 327 (that it is not necessary to produce the stenographer) ; Price v. Lawson, 74 Md. 499, 22 Atl. 206 (where the party offering the testimony was himself allowed to testify to it) ; Brice v. Miller, 35 S. C. 537, 15 S. E. 272; Garrett v. Weinberg, 54 S. C. 127, 31 S. E. 341; Loughry v. Mail, 34 111. App. 523; German Nat. Bank v. Leonard, 40 Neb. 676, 59 N. W. 107 (that the witness may testify with or without the aid of a proper memorandum ) . And oral evidence is admissible, without presenting the record of a former suit, to show that certain depositions were taken and used in the suit, when it is not sought to prove their contents by parol. Ayers v. Chisum, 3 N. M. 59, 1 Pac. 856. In Kain v. Larkin, 131 N. Y. 300, 30 N. B. 105, it was held that a referee having in his possession an examination made by him of u, judgment 854 BRIEF 01^ FACTS, debtor in supplementary proceedinga, which was reduced to writing and read to and subscribed by the debtor, could not testify to the latter's statements upon such examination, the written examination itself being the best evidence. 8 Sebring v. Stryker, 10 Misc. 289, 30 N. Y. Supp. 1053 ; State v. O'Brien, 81 Iowa, 88, 40 N. W. 752; McGeoch v. Carlson, 96 Wis. 138, 71 N. W. 116. See also Civil Trial Brief, 3d ed. 207, note 3. 12. Proving by bill of exceptions. Whether or not it is proper to prove former testimony by a bill of exceptions in which it is incorporated is contested.^ ^Affirmative: Rico Reduction & Min. Co. v. Musgrave, 14 Colo. 79, 23 Pac. 458; Torrey v. Burney, 113 Ala. 496, 21 So. 348; Louisville Water Co. V. Upton, 18 Ky. L. Rep. 326, 36 S. W. 520; Slingerland v. Slinger- land, 46 Minn. 100, 48 N. W. 605 (that it may be done by a ease set- tled, allowed, and certified as prescribed by statute as constituting all the testimony produced at such former trial) ; Padley v. Catterlin, 64 Mo. App. 629 (Mo. Acts 1891, p. 138). liegaUve: Fisher v. Fisher, 131 Ind. 462, 29 N. E. 31; Illinois C. R. Co. v. Ashline, 171 111. 313, 49 N. E. 521; Simmons v. Spratt, 26 Pla. 449, 9 L.R.A. 343, 8 So. 123; Anderson v. Reid, 10 App. D. C. 426. But it may be used as memorandum to refresh recollection. Ibid. TIDE. 855 THKEATS. For the rules in full, see Criminal Trial Brief, and note in 17 L.E.A. 654. See also Conveksation ; Handwmting; Lettebs. Allegation. An allegation of threatening may be proved by acts as well as by words. ^ 1 People V. Deacons, 109 N. Y. 374, 16 N. E. 676 (so holding on indictment under statute punishing "any tramp who . . . shall threaten to do injury to any person"), s. p.. Criminal Trial Brief. Ambiguity does not render threat incompetent. Id. Threats made prior to a difficulty between the parties to an assault, are admissible. Vanhooser v. State, — Tex. Crim. Eep. — , 113 S. W. 285. See also People v. Owen, 154 Mich. 571, 21 L.R.A.(N.S.) 520, 118 N. W. 590; State v. Stratford, 149 N. C. 483, 62 S. E. 882. Threats by accused two weeks before the homicide. TIDE. For kindred topics, see Moon; Navigability, Flow. It is not necessary to show a backward current. It is enough that there is a regular rise and fall.* iPeyroux v. Howard, 7 Pet. 324, 343, 8 L. ed. 700, 707; Eichelberger v. Mills Land & Water Co. 9 Cal. App. 628, 100 Pac. 117. 856 BRIEF ON FACTS. TIME AND DISTANCE. 1. Comparison. 2. Direct testimony; opinion. a. Time spent. b. Distance object visible. c. Time or distance to stop train. d. Time to get oflf train. c. Time necessary for specified distance, f. Time necessary for specified work. g. Distance within whicli sparks from engine will set fire, 3. Entries and records. See also Judicial Notice. 1. Comparison. In the absence of better evidence, or in case of conflict of testimony as to a period of time, it is competent to prove facts otherwise irrelevant, that occupied the same time, and v^hen. they occurred.^ 1 Sias V. Munroe, 134 Mass. 153 (period during which a, dealer served a. customer, proved by evidence of his simultaneous service of another). See also Whipple v. New York, N. H. & H. R. Co. 19 E. I. 587, 35 Atl. 305 (holding that evidence of the distance between a telegraph pole and side of a freight car is admissible to prove the distance between the pole and the side of another car, upon the side ladder of which a brake- man was climbing when he was struck by the pole, in connection with evidence that the two cars were of the same pattern and dimensions, and in the absence of evidence to show that the latter car is available for measurement), s. P., Foeqotten Fact. 2. Direct testimony; opinion. a. Time spent. — The question what portion of another per- son's time was spent in a given service is one of fact to which. 8 witness having had adequate opportunities of observation may testify directly.* 1 Johnson v. Myers, 103 N. Y. 663, 9 N. E. 52 (what portion of his time' witness's husband had spent in his employer's business). h. Distance object visible. — The question as to how far iu TIME AND DISTANCE, 85T each direction objects on a railroad track can be seen from a> certain point by the engineer on a train, or by other persons,, is one of fact to which a person having knowledge or adequate' opportunities of observation is competent to testify.^ How far a certain light can be seen on the water under given, circumstances is a proper subject for the opinion of a mariner conversant with the place.* 1 As cattle, for example. Gulf, C. & S. F. R. Co. v. Washington, 1 C. C. A.. 286, 4 U. S. App. 121, 49 Fed. 347; Gulf, C. & S. F. E. Co. v. Campbell,. 1 C. C. A. 293, 4 U. S. App. 133, 49 Fed. 354; Gulf, C. & S. F. R. Co. v. Ellidge, 1 C. C. A. 295, 4 U. S. App. 136, 49 Fed. 356; Gulf, C. & S. F. E. Co. V. CMlds, 1 C. C. A. 297, 4 U. S. App. 200, 49 Fed. 358. See also- Bias V. Chesapeake & 0. E. Co. 46 W. Va. 349, 33 S. E. 240 (where evi- dence as to the distance a child, the size of the decedent, along or on, the track, was visible in the direction from which the train was coming- by which she was killed, was held competent) ; Chicago, E. I. & P. E. Co. V. Martin, 59 Kan. 437, 53 Pac. 4C1 (holding that testimony as tO' how far the rear lights of a train may be seen is not necessarily a mere expression of opinion, but that it may be founded upon observa- tion and knowledge). But Hermes v. Chicago & N. W. E. Co. 80 Wis.. 590, 50 N. W. 584, holds that testimony as to how far a child could have been seen on the track on the day of the accident is inadmissible on the ground that that is a question for the jury under all the evi- dence. SCase V. Perew, 46 Hun, 57. But see McKerchnie v. Standish, 6 N. Y. Week. Dig. 433 (opinion of astronomical expert as to how far a vessel' could be seen on a certain day and hour, if there were no obstruc- tion, — held, mere speculation; and doubt expressed as to its competency even in the absence of all other proof ) . c. Time or distance to stop train. — The question as to the time or distance under which a given train, under given cir- cumstances, can be stopped, is one which involves technical knowledge and experience.^ It is sometimes held competent for witnesses, although not experts, to state their own observations and experiences as to- the distance within which a train can be stopped, not, however, for the purpose of expressing an opinion, but simply to state- facts within their observation.* 1 Schlereth v. Missouri P. E. Co. 115 Mo. 87, 21 S. W. 1110; Watson v. Min- neapolis Street E. Co. 53 Minn. 551, 55 N. W. 742; Mammerberg v. 858 BRIEF ON FACTS. Metiopolitan Street R. Co. 62 Mo. App. 563, citing Guorley v. St. Louia & S. F. R. Co. 35 Mo. App. 92 ; Maher v. Atlantic & P. R. Co. 64 Mo. 276; Czezewzka v. Benton-Bellefontaine R. Co. 121 Mo. 212, 25 S. W. 911; Grimmell v. Chicago & N. W. R. Co. 73 Iowa, 93, 34 N. W. 758; Rogers, Expert Testimony, 237. In O'Neil v. Dry Docic, E. B. & B. R. Co. 129 N. Y. 125, 29 N. E. 84, not only was u, witness, qualified to speak, allowed to testify to the time and distance within which a driver could stop a car with one horse going on a moderate trot on level ground (see 27 Jones & S. 123, 15 N. Y. Supp. 84), but also another, qualified to speak, was permitted to answer a question as to the dis- tance within which a horse and loaded truck could be stopped under certain conditions. But the court of appeals criticized the latter ques- tion, as belonging to a class not to be encouraged; that the answer could be of little value to the jury, who were generally acquainted with such common things as trucks and horses, and the power, actions, and capacity of horses, which are constantly open to observation. But the witness must be competent to speak as an expert. Barry v. Second Ave. R. Co. 1 Misc. 502, 20 N. Y. Supp. 871 ; Mammerberg v. Metro- politan Street R. Co. 62 Mo. App. 563. And the question must be stated hypothetically, embodying substantially all the facts relating to the question. Mammerberg v. Metropolitan Street R. Co. 62 Mo. App. 563, and cases cited. See also Frost v. Mil- waukee & N. E. Co. 96 Mich. 470, 56 N. W. 19; Adams v. Chicago, M. & St. P. R. Co. 93 Iowa, 565, 61 N. W. 1059 (opinions held incompetent because not based on the evidence). « Harmon v. Columbia & G. R. Co. 32 S. C. 127, 10 S. E. 877. Thus, in Chicago City R. Co. v. Taylor, 170 III. 49, 48 N. E. 831, a nonexpert witness was allowed to testify that he had seen cable cars which were running at the usual rate of speed stop within 20 or 30 feet. And in St. Louis & S. F. R. Co. v. Brown, 62 Ark. 254, 35 S. W. 225, a non- expert was allowed to give his opinion as to the distance which a train had run before it stopped, although he was unable to observe external objects. Witnesses who have run other trains, but are not familiar with the train in question, may testify as to the distance required to stop such train. Chesapeake & 0. R. Co. v. Lang, 135 Ky. 76, 121 S. W. 993. d. Time to get off train. — An expert cannot be asked his opinion whether the time during which a railroad train stopped was sufScient to enable the passengers to get off.^ » Keller v. New York C. E. Co. 2 Abb. App. Dec. 480, approved in Mil- waukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 473, 24 L. ed. 250, 258 ; Stowe v. Bishop, 58 Vt. 498, 56 Am. Rep. 569, 3 Atl. 494 ; Omaha & E. V. R. Co. V. Chollette, 41 Neb. 578, 59 N. W. 921 (where the TIME AND DISTANCE. 859 witness, a conductor, had previously testified that he did not know how many passengers there were for that station) ; Texas & P. E. Co. v. Lee, 21 Tex. Civ. App. 174, 51 S. W. 351, 57 S. W. 573 (holding such testimony inadmissible as a mere conclusion. But the decision does not show whether the witnesses were experts or not) . Contra. Of an eye witness. Quinn v. New York, N. H. & H. K. Co. 56 Conn. 44, 12 Atl. 97 (question whether one had time to jump from a hand car, allowed). But see Burrows v. Erie R. Co. 3 Thomp. & C. 44, reversed in 63 N. Y. 556. e. Time necessary for specified distance. — ^When the time necessary for passing from one point to another is material, a witness who has passed over the ground under similar condi- tions may testify to the result of his experiment.^ 1 People V. Kelly, 35 Hun, 295; State v. Flint, 60 Vt. 304, 14 Atl. 178. But the details of the conditions may be essential. Klanowski v. Grand Trunk E. Co. 64 Mich. 279, 31 N. W. 275 (court divided on this ques- tion) . Opinion or direct testimony as to the distance to which fire would "jump," and the time sparks would remain alive, competent. See Davidson v. St. Paul, M. & M. E. Co. 34 Minn. 57, 24 N. W. 324; abstr. s. c, 32 Alb. L. J. 379. /. Time necessary for specified worJc. — An expert may tes- tify to the, time necessary for a given operation.' 1 McDonald v. Barton, 1 Thomp. & C. Add. 12 (building stairs) ; Hadden v. Houghtaling, 1 Hun, 318; Smith v. Gugerty, 4 Barb. 614 (time re- qviired, in opinion of mason, for walls to dry). Compare: Payne v Hodge, 7 Hun, 612, affirmed in 71 N. Y. 596 (without opinion) ; Emer- son V. Lowell Gaslight Co. 3 Allen, 410; Grahlman v. Chicago, St. P. & K. C. E. Co. 78 Iowa, 564, 5 L.E.A. 813, 43 N. W. 529 (holding that witness cannot testify as to the time usually required to fill a cattle guard with snow) . g. Distance within which sparks from engine will set fire. — The distance within which sparks from a properly equipped engine will set fires is a proper subject of expert testimony.' 1 Chicago & E. E. Co. v. Kreig, 22 Ind. App. 393, 53 N. E. 1033 ; Babbitt v. Erie E. Co. 108 App. Div. 74, 95 N. Y. Supp. 429; Kansas City, Ft. S. & M. E. Co. V. Blaker, 68 Kan. 244, 64 L.E.A. 81, 75 Pac 71, 1 Ann. Caa. 883. 860 BEIEF ON FACTS. And an experienced locomotive engineer is competent to testify, from his observation and experience, as to the distance that sparks from a properly equipped locomotive will set fires, although he has made no scientific tests and is not a competent physicist. Potter v. Grand Trunk Western E. Co. 157 Mich. 216, 22 L.R.A.(N.S.) 1039, 121 N. W. 808. So the following persons have been held to be qualified to testify as experts on this subject: A general foreman of the mechanical department of a division of the railroad, who had been a practical engineer (Dean V. Chicago, M. & St. P. E. Co. 39 Minn. 413, 12 Am. St. Rep. 659, 40 N. W. 270) ; engineers, conductors, master mechanics, or assistant master mechanics employed on and about locomotive engines from ten to twenty-five years, and a brakeman and yard master of three years' service (Davidson v. St. Paul, M. & M. R. Co. 34 Minn. 51, 24 N. W. 324). But in Hitchner Wall Paper Co v. Pennsylvania E. Co. 93 C. C. A. 598, 168 Fed. 602, affirming 158 Fed. 1011, it was held that an expert locomotive builder, not in touch with the operation of locomotives on the road, was not qualified to testify as to the distance that sparks going through the arrester would carry on a windy day so as to set fire to inflammable material. And in Peck v. New York C. & H. E. E. Co. 165 N. Y. 347, 59 N. E. 206, reversing 37 App. Div. 110, 55 N. Y. Supp. 1121, it was held that, while engineers could testify as to whether, within their observation and experience, live or burning sparks would be carried a certain dis- tance, it was improper to permit them to give an opinion as to whether the heat in a spark thrown such a, distance would ignite anything along the road, as this was not a proper subject for expert evidence, at least from those particular witnesses. 3. Entries and records. As between third persons, entries in the ordinary course of business, such as the record of the time of passing trains, are not made evidence of the time, merely by proving the custom to keep the record. The testimony of the persons who reported the fact, and thereupon made the entry, should be produced or accounted for.' 1 Graville v. New York C. & H. R. E. Co. 34 Hun, 224, reviewing cases. Compare Fokgotten Fact. TITLE. 861 TITLE. 1. Direct testimony. 2. General reputation. 3. Possession. 4. Conveyance by one in possession. 5. Deed founded on judicial proceedings. 6. Assessment roll. 7. Oral evidence. 8. Admissions. 9. Declarations. 10. Opinion as to marketableness. 11. Refusal of others to pass. •See also Acceptance; Assignment; Delivery; Possession. As to personal property, see Ownership. 1. Direct testimony. A party may testify directly that he never had any title or interest in certain lands, even though the question of his ov7n- ing the lands be directly involved in the issue.' When title is only incidentally involved, a witness may tes- tify directly as to vyho is or was the owner.^ Otherwise when directly involved in the issue.' 1 Florence Land, Min. & Mfg. Co. v. Warren, 91 Ala. 533, 9 So. 384. The absence of title or claim is not presumed to be evidenced by docu- mentary proof. 2 Potter V. Weidman, 20 N. Y. Week. Dig. 110; Hodson v. Goodale, 22 Or. 68, 29 Pac. 70; Pelzer Mfg. Co. v. Sun Fire Office, 36 S. C. 213, 15 S. E. 562; Bexar County v. Terrell, — Tex. — , 14 S. W. 62. :8 Jordan v. McKinney, 144 Mass. 438, 11 N. E. 702; Lavery v. Brooke, 37 111. App. 51; Moe v. Chesrown, 54 Minn. 118, 55 N. W. 832; Carter v. Pitcher, 87 Hun, 580, 34 N. Y. Supp. 549 ; Cox v. Ward, 107 N. C. 507, 12 S. E. 379; Benjamin v. Shea, 83 Iowa, 392, 49 N. W. 989. ■2. General reputation. General reputation not competent.'' 1 Green v. Chelsea, 24 Pick. 71; Canfield v. Hard, 58 Vt. 217, 2 Atl. 136; Sexton V. Hollis, 26 S. C. 231, 1 S. E. 893; Johnson v. Turner, — Md. — . 22 Atl. 1103; Goodson v. Brothers, 111 Ala. 589, 20 So. 443 (evi- dence that by reputation and general understanding in the neighbor- 862 BRIEF ON FACTS. hood the title to land was in one claiming adverse possession, incom- petent to establish title by adverse possession). Compare McAuliff V. Parker, 10 Wash. 141, 38 Pac. 744 (evidence that land was generally reputed to belong to defendant from a designated time, competent as tending to show his title by adverse possession ) . 3. Possession. Actual possession raises presumption of title; ^ and as against a trespasser this is sufficient.^ Otherwise of occasional entering on vacant land.^ 1 Miller v. Long Island E. Co. 71 N. Y. 380, reversing 9 Hun, 194 (civil case) ; White v. State, 14 Tex. App. 449 (criminal case) ; Harland v. Eastman, 119 111. 22, 8 N. E. 810, 7 N. E. 59 (ejectment) ; Weaver v. Rush, 62 Ark. 51, 34 S. W. 256; Kendrick v. Latham, 25 Fla. 819, 6 So. .871; Doherty v. Matsell, 119 N. Y. 646, 23 N. E. 994; McDonald v. Fox, 20 Nev. 364, 22 Pac. 234; Tillman v. Fontaine, 98 Ga. 672, 27 S. E. 149; Mettler v. Miller, 129 111. 630, 22 N. E. 529; Loomis v. Eoberts, 57 Mich. 284, 23 N. W. 816; Salazar v. Longwill, 5 N. M. 548, 25 Pac. 927; Miller v. Bumgardner, 109 N. C. 412, 13 S. E. 935; McTavish v. Great Northern E. Co. 8 N. D. 333, 79 N. W. 443; Howell v. Mellon. 169 Pa. 138, 32 Atl. 450; Watkins v. Smith, 91 Tex. 589, 45 S. W. 560; Teass v. St. Albans, 38 W. Va. 1, 19 L.E.A. 802, 17 S. E. 400; Moore V. Chicago, M. & St. P. E. Co. 78 Wis. 120, 47 N. W. 273. An actual possession of a part of farm lands, accompanied by constructive possession of abutting lands included in the description of a deed, raises a presumption of ownership of all the land described in the deed. Burk v. Spinning, 2 N. Y. S. E. 221. As to notice of title from possession, see ante, Notice. 2 Burt V. Panjaud, 99 U. S. 180, 25 L. ed. 451; Campbell v. Rankin, 99 U. S. 261, 25 L. ed. 435. 3 Miller v. Long Island E. Co. 71 N. Y. 380. 4. Conveyance by one in possession. A conveyance is competent as evidence of title in the grantee, if it be shovs^n that the grantor was in possession.* Otherwise it is not evidence of title.^ 1 Doherty v. Matsell, 11 N. Y. Civ. Proc. Eep. 392, and cases cited, 22 Jones & S. 17. In Zundel v. Baldwin, 114 Ala. 328, 21 So. 420, an action of trespass quare clausum fregit, a, deed from grantors, as to whom there was no evidence what title to, or connection with, the land they had, if any, was held insufficient as evidence of title in the grantee, but at most could be TITLE. 863 regarded only as color of title in connection with any evidence of possession proved. But in Rina v. Pelnar, 86 Wis. 408, 57 N. W. 51, trespass upon the plea of title, it was held that the defendant's title deeds were admissible with- out proof of seisin or possession of the premises in either grantor or grantee within twenty years, since under the Wisconsin statute (§ 4210) defendant, having shown his legal title to the premises, was presumed to have been possessed thereof within the time required hy law, and the occupancy of other persons is deemed in subordination to the legal title unless adverse. 2 Miller v. Long Island R. Co. 71 N. Y. 380, reversing 9 Hun, 194; Forsyth V. Rickenbrode, 22 N. Y. Week. Dig. 470. Title to land by deed, how proved, see Abbott, Trial Evidence, 693. 5. Deed founded on judicial proceedings. Deed founded on judicial proceedings, not compel ent. with- out proof of those proceedings.' 1 Reed v. Ohio & M. R. Co. 126 111. 48, 17 N. E. 807 (master's deed to suc- cessor of corporation) ; Hasbrouck v. Burhans, 47 Hun, 487 (sheriff's deed without execution, etc.; saved from this rule, however, by being ancient deed aided by evidence of declarations of party) ; McGehee v. Wilkins, 31 Fla. 83, 12 So. 228 (sheriff's deed) ; Riley v. Pool, 5 Tex. Civ. App. 346, 24 S. W. 85 (administrator's deed incompetent without order of sale produced or accounted for). Compare Wilmerton v. Sample, 39 111. App. 60 (sheriff's deed based on a sale under execution issued more than a year after date of judgment good until vacated by proper court, and competent as evidence of title, or in disproof of adverse claim of title) ; Munro v. Meech, 94 Mich. 596, 54 N. W. 290 (deed by assignee for creditors not incompetent in ejectment because unaccompanied by proof that assignee had executed and filed bond be- fore making deed) ; Jordan v. Surghnor, 107 Mo. 520, 17 S. W. 1009 (ejectment; sheriff's deed on execution issued upon transcript of jus- tice's judgment against nonresident of county, competent without proof of issuance of execution by justice and return nulla bona, and without proof of justice's judgment and the transcript). In Hughes v. Mc- Divitt, 102 Mo. 77, 14 S. W. 660, 15 S. W. 756, the court admitted in support of the grantee's title an administrator's deed made in 1841, which recited the date of the order of sale, the court making the order and the consideration as required by a statute then in force, supple- mented by oral proof of approval of the sale by the proper court by an order entered of record, it appearing the records of the court had been destroyed by fire. See further, as to proof of title by deed founded on judicial proceedings, Abbott, Trial Evidence, 2d ed. 886 et seq. "864: BRIEF ON FACTS. As to proving lost records, see note to Goldman v. Kennedy, 21 Abb. N. C. 367, collecting cases; Dawson v. Parham, 47 Ark. 215, 1 S. W. 73; Tucker v. Murphy, 66 Tex. 355, 1 S. W. 76 {administrator's deed). But a deed made by one competent to convey in his own right, and made in proper form for that purpose, is effective, notwithstanding it recites judicial proceedings as its occasion, and they are not proved. Rockwell V. McGovern, 69 N. Y. 294, affirming 8 Jones & S. 118 (assignment iu insolvency ) . *6. Assessment roll. Assessment roll not alone competent as tending to show title.* 1 There must be proof, also, that the person against whom it is offered gave it in, or had knowledge of it. Shumway v. Leakey, 67 Gal. 458, 8 Pac. 12; Locke V. Moulton, 96 Cal. 21, 30 Pac. 957. But see query in Doe ex dem. Stansbury v. Arkwright, 2 Ad. & El. 182, note. In Tyres v. Kennedy, 126 Ind. 523, 26 N. E. 394, it is held that there must be proof identifying it as the original paper. Proof of listing land for taxation was held, in RufRn v. Overby, 105 N. C. 78, 11 S. E. 251, an action in ejectment, admissible as an act done in pursuance of law and under a claim of ownership, although of very Blight import as evidence of title. And in Shober v. Wheeler, 113 N. C. 370, 18 S. E. 328, failure of an alleged fraudulent grantee to return the land for taxation was admitted as tending to show that he did not consider himself as the owner of the land. But in Hammond v. Abbott, 166 Mass. 517, 44 N. E. 620, it was held that the fact that land was assessed in the name of a person other than the one claiming to own it at the time was not competent upon the issue of his ownership at that time, as such assessment was no act of his, and called for no action on his part. 7. Oral evidence. In what cases competent to supply defects in title, see* 1 Cases collected in note to Toole v. Toole, 22 Abb. N. C. 397-422. As to oral evidence to establish or vary trusts, see cases reviewed in notes to Ferguson v. Eafferty (Pa.) 6 L.E.A. 47; Collar v. Collar (Mich.) 13 L.E.A. 622; Durkin v. Cobleigh (Mass.) 17 L.R.A. 270, and West- ern U. Teleg. Co. v. Call Pub. Co. (Neb.) 27 L.R.A. 622. S, Admissions. Title to land, or the want of it, cannot be proved or disproved by an adversary's oral admission.* 1 Walker v. Dunspaugh, 20 N. Y. 170. See also Lawrence t. Wilson, 160 TITLE. 865 Mass. 304, 35 N. E. 858 (admissions by administrator of defendant's predecessor in title) ; Greenleaf v. Brooklyn, F. & C. I. R. Co. 141 N. y. 395, 36 N. E. 393 (liolding that an admission of ownership in plain- tiff in ejectment, made by one who is not shown to have ever had any title thereto or possession thereof, does not bind the defendants, al- though they took a deed from such person, where they subsequently take possession of the land and claim to be the owners thereof, relying upon their possession as sufficient evidence of owner.ship). And see Abbott, Trial Evidence, 2d ed. 898. 9. Declarations. Declarations of a person having or claiming title to land, which would be competent against him, are competent against persons deriving title through or from him, if they were made when he held all the title which they obtained or could claim ; ^ but they are not competent for the purpose of impeaching or destroying a record title.^ Acts and declarations made after the actor and declarant / had contracted to convey, but before conveying, are competent ; ^ but when made after conveyance and in the absence of his grantee are not competent against those claiming under him.* 1 Ellis V. Harris, 106 N. C. 395, 11 S. E. 248; Snow v. Starr, 75 Tex. 411, 12 S. W. 673; Youngs v. Cunningham, 57 Mich. 153, 23 N. W. 626; Knight V. Knight, 178 111. 553, 53 N. E. 306, and cases cited; Fry v. Feamster, 36 W. Va. 454, 15 S. E. 253; Cunningham v. Fuller, 35 Neb. 58, 52 N. W. 836; Fry v. Stowers, 92 Va. 13, 22 S. E. 500; Gage v. Eddy, 179 111. 492, 53 N. E. 1008; Williams v. Barter, 121 Cal. 47, 53 Pac. 405; Levi v. Gardner, 53 S. C. 24, 30 S. E. 617; Finch v. Garrett, 102 Iowa, 381, 71 N. W. 429; Ratliflf v. Eatliff, 131 N. C. 425, 63 L.R.A. 963, 42 S. E. 887. SKelley v. Perrault, 5 Idaho, 221, 48 Pac. 45; Gibney v. Marchay, 34 N. Y. 304. 3 Chadwick v. Fonner, 69 N. Y. 407. 4 Seville v. Jones, 74 Tex. 148, 11 S. W. 1128; Towner v. Thompson, 81 Ga. 171, 6 S. E. 184; Eawson v. Plaisted, 151 Mass. 71, 23 N. E. 722; Casto V. Fry, 33 W. Va. 449, 10 S. E. 799; Harris v. Russell, 93 Ala. 59, 9 So. 541; Allen v. Kirk, 81 Iowa, 658, 47 N. W. 906 (so holding unless the grantor and grantee conspired together to defraud third persons) ; Consolidated Tank Line Co. v. Pien, 44 Neb. 887, 62 N. W. 1112; Kurtz V. St. Paul & D. R. Co. 61 Minn. 18, 63 N. W. 1; Francis v. Wilkinson, 147 111. 370, 35 N. E. 150; Fenton v. Miller, 94 Mich. 204, 53 N. W. 957; Graham v. Botner, 18 Ky. L. Rep. 637, 37 S. W. 583; Sullivan v. Ball, 55 S. C. 343, 33 S. E. 486; Baldwin v. Stier, 191 Pa. Abb. Facjts — 55. 866 BKIEI' our FACTS. 432, 43 Atl. 326; Thornton v. Gaar, 87 Va. 315, 12 S. E. 753 (so hold- ing upon the trial of the question whether the conveyance was fraudu- lent as to creditors); Kain v. Larkin, 131 N. Y. 300, 30 N. B. 105. See further, on this question, Abbott, Trial Evidence, 2d ed. 896 et seq, 10. Opinion as to marketableness. The opinion of counsel as to whetlier a title is marketable ^ is not competent evidence on a question between vendor and pur- chaser.* 1 For the rule as to doubtful or bad title, see note to Toole v. Toole, 22' Abb. N. C. 397, collecting cases. As to what is a. marketable title, see note in 38 L.K.A. (N.S.) 1. . 305. other similar occurrences or injuries, p. 311. suggestion of another cause than one alleged, p. 313. cross-examination, p. 314. rebutting evidence of other cause, p. 314. CAUTION, see Care. CENSUS, certified copies of returns as evidence on question of age, p. 160. judicial notice of, p. 641. CERTIFICATES, certificate of baptism to show age, pp. 159, 243. certificate of birth to show age, p. 159. marriage certificate, p. 676. of measure as proof of measure, p. 683. proper filing of certificate of nomination, p. 475n. CERTIFIED COPIES, see Copies. CHARACTER, as to habit, see Habit. admissibility of evidence as to, generally, p. 318. competency of witness, pp. 323, 396. evidence referring to time subsequent to the fact, p. 322. general reputation, pp. 318, 320, 396. particular facts, p. 322. witness's character, pp. 395, 396. CHARGE ON PROPERTY, testator's intent to charge real property with payment of legacies,, p. 624. 912 INDEX. CHARTER, presumption of acceptance of, pp. 56, 57n. CHATTEL MORTGAGE, admissibility in evidence of unacknowledged chattel mortgage, p. 115. admissibility of certified copy of, in evidence, p. 3S5n. oral evidence as to date of, p. 406n. presumption of acceptance by beneficiary of, p. 56. CHATTELS, possession of, see Possession. CHECKS, implied authority of agent to indorse, p. 187. possession of, as evidence of ownership, p. 775n. CHILDREN, see also Infants; Parent and Child. proof of number of, in action for personal injury, p. 334. CHINESE, issue of passport to, as evidence of citizenship, p. 327ii. CHRISTIAN NAMES, judicial notice of customary abbreviations of, p. 34n. names generally, see Names. CHURCHES, see Religious Societies. CHURCH RECORD, proving date of birth by, p. 243. CIRCUMSTANTIAL EVIDENCE, see Evidence. CITIZENSHIP, admission of lack of, p. 327. burden of proving alienage, p. 710. declarations to show lack of, p. 328. distinguished from residence, p. 326. hearsay, p. 328. of foreign-born wife, p. 328. passport, as evidence of, p. 327. presumption, p. 326. CITY DIRECTORY, admissibility in evidence to show address, p. 122. CLAIM, direct testimony on question of, p. 328. CLOTHING, production in evidence as proof of identity, p. 555n. INDEX. 913 CLUBS, presumption of member's knowledge of rules of, p. 653n. ■COAL PIT, expert evidence as to proper construction of, p. 367n. C. 0. D. judicial notice of meaning of, p. 35n. parol evidence as to meaning of, p. 36n. ■CODEFENDANTS, admissibility of testimony of defendant as to intent, on behalf of codefendants, p. 613. COG WHEELS, opinion as to necessity of covering, p. 268n. COHABITATION, as evidence of marriage, pp. 678, 680, COIN, value of foreign coin, p. 878. COLLATERAL AGREEMENT, proof of oral agreement collateral to written contract, p. 329. COLLATERAL SECURITY, see Pledge and Collateral Security. COLLISION, opinion as to whether collision could have been avoided, p. 309n. presumption of negligence from, p. 288n. COMBINATIONS, illegal combinations, see Monopoly and Combinations. COMMERCIAL PAPER, in general, see Bills and Notes, opinion as to value of, p. 878. COMMINGLING OF ASSETS, identity of fraud traced through, p. 559. COMMON FACT, presumption of knowledge of, p. 650. COMPARISON, of handwriting, see Handwriting. of horse power of engine with that of water whee!s, p. 549. of two newspapers, p. 804. of weather, p. 882. on question of quality of article, p. 808. to prove measurement, p. 683. Abb. Facts — 58. 914 INDEX. COMPARISON — ( continued ) . to prove quantity not exactly known, p. 808, to prove value of lost article, p. 873, COMPETENCY AND SKILL, direct testimony, p. 323. general reputation, p. 324. inspection of witness to determine, p. 325. intoxication, p. 325. mental capacity, see Insanity, single instances of carelessness, p. 325. COMPROMISE AND SETTLEMENT, oflfers made for purpose of compromise as admissions of liability, p. 132. presumptions and burden of proof as to, p. 333. CONCEALMENT, circumstantial evidence, p. 333. positive acts, p. 333. sufficiency of proof of, p. 333. CONDITION, waiver of, see Waiver. CONDITION OF PERSONS, PLACES AND THINGS, Condition of persons. condition in life, p. 334. financial condition, p. 336. general reputation, p. 340. physical condition. direct testimony, p. 341. inspection in court, p. 341. inspection out of court, p. 343. photographs, p. 341. Condition of places and things. certificate of inspection, p. 353. combining testimony of several witnesses, p. 348. condition at another time or place, p. 348. laying foundation for the evidence, p. 351. diagram, p. 355. direct testimony, p. 345. what witness observed, p. 347. experiments, p. 353. inspection in court, p. 352. maps, pp. 354, 355. official inspection, p. 353. plan, p. 355. photographs, pp. 354, 355. view by jury, p. 353. INDEX. 915 CONFIDENTIAL COMMUNICATIONS, communications between husband and wife to show ground for separa- tion, p. 826. to prove address of husband or wife, p. 122. communications to notary when acknowledging mortgage as privi- leged, p. 119. privilege as rendering attorney incompetent to testify to witness's handwriting, p. 516. to give address of client communicated to him confidentially, p. 122. telegrams as, p. 839. to physician, p. 579. CONFIDENTIAL RELATIONS, between donor and donee, p. 491. burden of proving validity of contract between parties sustaining, p. 716n. CONSENT, see also Assent. common consent as basis of usage, p. 871. presumption and burden of proof, p. 356. unexpressed willingness, p. 356. CONSIDERATION, bona fide purchaser for value, who is, p. 359. effect of disproving, p. 359. executory agreement, p. 363. failure to pay, p. 359. inadequate consideration, p. 357. legal, to displace recital of illegal, consideration, p. 384. necessity of, to sustain waiver, p. 880. oral evidence as to, pp. 330n, 332n, 360, 363, 364. presumption and burden of proof, pp. 358, 359, 363. previous agreement as to, p. 364. sufficiency, p. 358. CONSPIRACY, circumstantial evidence to show, p. 365. CONSTITUTION, judicial notice of Constitution of United States, p. 637. CONSTRUCTION, demonstrative evidence, p. 369. inspection in court, p. 369. judicial notice, p. 366. Opinions and conclusions. direct testimony, pp. 368, 369. matters of common observation, p. 367. DIG INDEX. CONSTRUCTION— ( continued ) . matters requiring special knowledge, p. 366. quality of work, p. 368. CONSTRUCTIVE DELIVERY, of instrument, p. 425. CONTEMPT, judicial notice of decree in proceedings to punish violation thereof as contempt, p. 641. CONTINUANCE, of absence from state, p. 45. of agency, p. 185. of domicil, as to, pp. 4, 435, 820. of habit, p. 504. of insanity, p. 574. of lucid interval, p. 577. of life, pp. 409, 412. of membership, p. 689. of ownership, p. 779. of possession, p. 797. of relation of employer and employee, p. 460. CONTINUANCE AND ADJOURNMENT, evidence of admission made on former trial for purpose of defeating continuance, p. 129. CONTRACTS, acceptance of, see Acceptance. alterations in, see Alterations. ambiguity in general, see Ambiguity. cancelation, authority of agent as to, p. 188. character evidence in action for breach, p. 318n. consideration, see Consideration. custom or usage, evidence of, pp. 380, 867. declarations of agent, p. 376. delay in rescinding as an election to affirm, p. 816. delivery, presumption, p. 371. direct testimony as to terms or understanding, p. 372. disputed handwriting, see Handwriting. fictitious name, p. 474. fraud or false representations inducing making of, pp. 562, 563. general denial, what admissible under, p. 377. ignorance of effect, p. 378. implied, pp. 370, 458. intent of parties, see Intent. misnomer in, p. 694. opinion as to effect, p. 373. INDEX. 917 CONTRACTS— ( continued ) . oral evidence to show collateral agreement, p. 329. to show legality or illegality, p. 561. to show that contract was made merely to influence others, p. 378. other transactions, p. 374. parties to, pp. 372, 377. performance, direct testimony as to, p. 787. stipulation that thing shall be done to satisfaction of party, p. 822. presumptions and burden of proof generally, p. 371. presumption as to nonresidence of parties to contract executed out of state, p. 819. presumption of invalidity of contract between parties in confidential relations, p. 717n. previous similar transactions, p. 374. probability or improbability of transaction, p. 373. ratification, see Ratification. res gestce, p. 375. sanity and competency of party to, see Insanity, technical terms, p. 371. trade terms, p. 371. usage, evidence of, pp. 380, 867. validity, burden of proof, p. 371. waiver, burden of proof, p. 371. with whom, pp. 372, 377. witness's understanding as to, p. 373. writing not signed as evidence of terms, p. 375. Statute of frauds. acceptance of goods to take case out of statute, pp. 54, 61, 63. necessity that authority of agent be in writing, p. 169. parol evidence to vary writing, see Evidence, unsigned memorandum as writing, p. 376. Ahandonment of. agent's authority to cancel, p. 188. burden of proof, p. 2. direct testimony, p. 3. letters, p. 3. opinions, p. 3. parol evidence, p. 3. sufiiciency of proof, p. 3. CONTRADICTION, of witness, see Witnesses. CONTRIBUTORY NEGLIGENCE, see Negligence. CONVERSATION. calling for entire, p. 382. 918 INDEX. CONVERSATION— ( eontmued ) . denial and rebuttal, p. 382. fact of conversation does not let in substance, p. 382. interpreted conversation, p. 381. signs, p. 382. COPIES, admissibility in evidence, see Best and Secondary Evidence. CORONER, evidence of verdict or findings of, to show cause of death, pp. 66, 316. CORPORATIONS, acceptance by, of beneficial grant or right, p. 56. acceptance of appointment as director, p. 56. acceptance of charter, p. 56. approval of instrument by presumption as to, p. 223. authority of receiver of, to sue, p. 657. custom of, p. 503. intent of, right of officer or agent to testify to, pp. 612, 613. knowledge of corporation or its officers, presumption of, pp. 650, 654n. knovpledge of one dealing v^ith, presumption, p. 651. of powers contained in charter of foreign corporation, p. 655n. notice to agent or oflicer as notice to corporation, p. 747. where agent is personally interested or is perpetrating a fraud, p. 744. ratification by corporation of contract executed by officers individu- ally, p. 192. Seals. direct testimony as to identity of, p. 824. judicial notice of, p. 824. presumption that seal was affixed by proper authority, p. 826. Stock and stockholders. abandonment of contract for sale of stock, p. 4n. assignment and acceptance of shares of stock, p. 58. debts contracted on faith of subscription, p. 700n. deceit inducing purchase of stock, p. 562. genuineness of stock certificates, p. 490. membership, proof by records, p. 687. presumption as to, pp. 689, 690. secondary evidence as to, p. 690. transfer of stock to dummy, p. 436. value of stock, p. 878. CORROBORATION, contradicting corroboration, p. 397. corroboration before contradiction, p. 391, of hearsay, p. 390. of testimony as to date, p. 404. INDEX. 919 COEROBORATION— (cojiiiTOted) . reason for positiveness, p. 390. Corroboration let in hy contradiction, accounts, p. 395. character of witness, p. 395. conduct of adverse party, p. 394. eoo parte declarations in own favor, p. 397. prior consistent statements, p. 396. probability of truth, p. 391. subsequent memorandum, p. 395. COST, competency of evidence of, on question of value, p. 874. COTENANCY, possession by cotenant as notice, p. 735. sufficiency of evidence to show ouster of tenant by cotenant, p. 157. COTTON, judicial notice as to cotton producing region of state, p. 634. COTTON OIL MILLS, ' judicial notice as to, p. 634. COUNTERCLAIM, see Set-Off and Counterclaim. COUNTIES, judicial notice as to location of, p. 642. of names of, p. 706. of population of, p. 634. COURTS, binding effect on Federal courts of state statute as to proof of hand- writing, p. 530. discretion as to admitting corroborative evidence, p. 391, judicial notice by, see Judicial Notice, order of, see Order of Court. COVENANTS, burden of proving that sum paid, by one suing for breach of, to remove encumbrance, was necessary, p. 713. identity of person as grantee in deed, p. 5o8n. presumption of satisfaction for breach of, p. 68. sufficiency of evidence to show satisfaction for breach, p. 68. CREDIBILITY, of dying declarations, p. 451. of witness, see Witnesses. CREDIT, account not conclusive on question to whom given, p. 400. 920 INDEZ. CREDIT — ( continued) . direct testimony on question to which of two persons credit was given, p. 399. general reputation of insolvency, p. 401. other like purchases, p. 401. presumptions and burden of proof, pp. 398, 400, 402. rebuttal of presumption of, p. 402. res gestcc, p. 401. subsequent credit, p. 400. to agent or principal, p. 398. CRIMINAL CONVERSATION, admissibility in action for, of judgment in divorce, p. 833. evidence as to character in action for, p. 318n. CRIMINAL LAW, admissions, see Admissions and Declarations. adultery, evidence in criminal prosecutions for, p. 151. bastardy, see Bastardy. bloodhounds, evidence of trailing by, p. 245. bloodstains, opinion as to, p. 244. character evidence, see Character. constructive presence of accused, p. 803. dying declarations, see Dying Declarations. embezzlement, see Embezzlement. forgery, see Forgery. homicide, see Homicide. identity, see Identity. Intent, see Intent; Motive and Purpose. other crimes, evidence of, p. 456. photograph of accused person, p. 791. rape, see Rape. record of measurements of accused person, p. 684. robbery, see Robbery. CROPS, judicial notice as to season for planting and season for maturity, p, 634. opinion as to value of, p. 876n. parol reservation of, p. 331n. CUMULATIVE TESTIMONY, in rebuttal, p. 813. CUSTOM, generally, see Usage and Custom, habit, see Habit. D DAMAGES, proof of condition in life as affecting, p. 334. proof of financial condition of defendant, p. 337. INDEX, °2L DAMAGES— ( continued) . proof of financial condition of plaintiif, p. 336. waiver of stipulation for liquidated damages, p. 879. DAMS, abandonment of rights in, pp. 17, 22n. DATE, collateral record and memoranda, p. 403. conclusiveness of date on postmark, p. 407. contradicting or corroborating, pp. 404, 406. hearsay evidence to fix, p. 402. judicial notice as to, p. 633. as to day on which date falls, p. 404. of meaning of abbreviations of, p. 34n. of birth, p. 243. of delivery of instrument, p. 428. of filing, p. 407. of letter received to fix date of occurrence, p. 403. part of document admitted to fix, effect, p. 404. presumptions as to, pp. 406, 428. refreshing memory, p. 403. DEAF AND DUMB, presumption of capacity to contract marriage, p. 572. DEATH, effect of, on admissibility of books of account in evidence, pp. 75, 78, 80. proof of testimony of witness since deceased, p. 850. revocation of .agency by, p. 194. testimony of interested witness or party to handwriting of deceased,, p. 517. Proof of fad of. mode of proving generally, p. 408. circumstantial evidence, p. 408. entries in family Bible, p. 408. entry in register, pp. 408, 415. fact of family wearing mourning, p. 408. hearsay; general report, p. 413. inscription on tombstone, p. 408. letters of administration, p. 414. order of substitution, p. 414. presumptions and burden of proof as to, p. 409. from absence, pp. 409, 410. time of death, pp. 412, 837. probate of will, p. 414. recitals in deed or ancient document, p. 408. record of other state, p. 415. undelivered letter, p. 415. 923 INDEX. DEATH— ( contimwd). Cause of. see also Cause. findings of coroner to show, p. 316. opinion evidence as to, pp. 303n, 304n, 305. cause of suicide, p. 308. transcript from official record to prove, p. 32. Action for causing. character evidence, p. 319. direct testimony by defendant as to purpose in firing fatal shot, p. 701n. earning capacity of deceased, p. 337. financial condition of person for whose benefit action is brought, p. 336. photograph, p. 790. DEBTOR AND CREDITOR, as to financial condition of debtor, see Insolvency, Solvency, and Financial Condition. creditor's testimony that debtor's representations induced him to delay proceedings, p. 700n. indebtedness generally, see Indebtedness. payment of debt, see Payment. presumption of acceptance by creditors of deed of trust or assign- ment, p. 55. resorting to courts of other state to collect debt, p. 617. DEBTS, see Indebtedness. DECLARATIONS, see Admissions and Declarations. DEDICATION, evidence as to intent to dedicate, pp. 610, 611. suiBciency of evidence to show acceptance of, p. 62. DEEDS, acceptance of, pp. 54, 60. acknowledgment of, see Acknowledgment, admissibility in evidence, see Documentory Evidence. of copies of deeds, see Best and Secondary Evidence. alterations in, see Alterations, ambiguity in, see Ambiguity, as mortgage, see Defeasance, consideration in, as proof of value, p. 876. consideration for, generally, see Consideration, delivery of, see Delivery, disputed handwriting, see Handwriting. INDEX. 923 DEEDS— ( continued) . extrinsic evidence to show that deed was intended to take effect a will, p. 626. founded on judicial proceedings as evidence of title, p. 863. judicial notice of abbreviations in, p. 35n. knowledge of contents presumed from signing of, p. 652n. mental capacity of grantor, see Insanity, misnomer in, p. 694. oral evidence of collateral agreement or stipulation, pp. 330n-332n. of condition, p. 619n. that deed was intended to be a mortgage, p. 360. to explain description of land, p. 802n. presumption of grant, pp. 500, 501. receipt in, for purchase money as evidence of payment, p. 782. record of, as notice, p. 750. to fictitious person, p. 474. DEI'EASANCE, admissions, p. 420. cogency of proof, p. 421. declarations, p. 420. direct question, p. 419. documentary evidence, p. 420. general denial, p. 421. oral evidence, p. 417. presumption; burden of proof, p. 416, DELAY, in asserting inventor's claims, p. 30. in rescinding as an election to affirm, p. 816. DELIVERY, conditional delivery, pp. 425-427. constructive delivery, p. 425. contemporaneous records and entries, p. 423. direct testimony, p. 422. parol evidence, p. 425. rebutting delivery by proof of a condition, p. 425. Presuviptions. delivery of telegram, p. 841. from possession of instrument, p. 423. from record, p. 424. date of, p. 428. DEMAND AND REFUSAL, on servant, p. 430. oral and written, p. 430. reasons for refusal, p. 430, 924 INDEX. DEMONSTRATIVE EVIDENCE, appearance and conduct of defendant in lunacy proceedings, p. 601. clothing, pp. 244, 555n. diagrams, pp. 355, 789. footprints, p. 556n. hair found near remains of deceased, p. 555n. maps, pp. 248, 354, 355, 788 et seq. phonographs, p. 788. photographs, pp. 788 et seq. plans, pp. 355, 788 et seq. plats, pp. 248, 3o4n, 788 et seq. surveys, p. 248. Easperiments. experiment in court to demonstrate physical ability or inability, p. 41. to corroborate opinion, p. 304. to show condition of things, p. 353. to show loss of sensation, p. 472. experiments out of court, pp. 41, 313. Inspection. exhibition of physical object to show cause of injury, p. 314. exhibiting instrument to expert, p. 308. inspection and operation of machine in court, p. 369. on issue of identity of person, pp. 551, 560. on issue of paternity, p. 780. on issue of pregnancy, p. 801. on question of quality, p. 806. Photographs. admissibility generally, pp. 788 et seq. of places, pp. 354, 355, 789. of testator, on question of testamentary capacity, p. 600. on question of identity, pp. 554, 790. on question of paternity, p. 790. to show physical condition, pp. 341, 790. photographic copies of disputed writing, pp. 530, 539. proof of correctness, p. 792. X-ray photographs, pp. 341, 794. DENIALS, explanation of, p. 465. form in pleading, p. 431. general denial, proof under, pp. 421, 431. specific denial, p. 433. DEPOSITIONS, admissibility in evidence, p. 848. diligence in procuring, p. 851. presumption as to residence of deponent, p. 820, DERAILMENT, opinion evidence as to cause of, pp. 302n-304n. presumption of negligence from, p. 288n. INDEX. 925 DERRICKS, opinion as to care and use of, pp. 267n, 270n. DESCRIPTION, oral evidence for purpose of applying or correcting, pp. 234, 622. DESERTION, see Abandonment. DESTROYED DOCUMENTS. admissibility in evidence of abstract made from, pp. 49, 50. DIAGRAM, admissibility in evidence, p. 355. DICTAGRAPH, evidence of conversation taken by, p. 434. DILIGENCE, as question for jury, p. 812. in procuring deposition of witness whose testimony in former pro- ceeding is offered in evidence, p. 851. DIRECTION, opinion evidence as to direction of blow or force, p. 310. DIRECTORY, admissibility in evidence to show address, p. 122. DIRECT TESTIMONY, as to abandonment of contract, p. 3. as to ability, p. 39. as to acceptance of goods purchased, p. 59. as to age, p. 162. as to agency, p. 168. as to agreement to apply balance on account to cross demand, p. 221. as to assent, p. 230. as to blood-stains, p. 244. as to competency and skill, p. 323. as to condition of places and things, p. 345. as to cross, check, or other mark in account book, p. 99. as to delivery of instrument or property, p. 422. as to effect of injury or operation, p. 452. as to feelings, p. 467. as to financial condition, p. 341. as to good faith, p. 495. as to habit, p. 502. as to handwriting, see Handwriting. as to health by person affected, p. 545. as to hearing of sounds, p. 548. as to identity, pp. 552, 824. as to inducement, p. 561. 926 INDEX. DIRECT TESTIMONY— ( continued ) . ■ as to intent, pp. 436, 455, 491, 608 et seq. as to intoxication, p. 630. as to knowledge, pp. 231, 647, 871. as to malice, p. 667. as to marriage, p. 676. as to motive or purpose, p. 700. as to one person's treatment of another, p. 866. as to ownership, p. 774. as to payment, p. 782. as to performance of agreement, p. 787. as to person witli whom contract was made, p. 377. as to position of object, p. 795. as to possession of lands or chattels, p. 796. as to proper construction of machine or other structure, pp. 368, 369. as to quality, p. 804. as to quantity, p. 807. as to residence, p. 817. as to scope of duty, p. 437. as to scope of particular trade, p. 200. as to speed, p. 830. as to suretyship of one signing note, p. 835. as to technical phrases and abbreviations, p. 38. as to terms of agreement, pp. 372, 373. as to time and distance, pp. 856 et seq. as to title, p. 861. as to usage or custom, p. 869. as to waiver, p. 879. as to whether act by another was accidental or done on purpose, p. 66. as to whether deed was intended to be absolute or as a, mortgage, p. 419. as to which of two persons credit was given to, p. 399. by expert generally, p. 762. that conversation occurred within hearing of another person, p. 548. DISCOVERY AND INSPECTION, compelling adversary to produce article in court, p. 352. compelling production of telegrams, p. 839. compulsory physical examination, p. 342. DISCREDITING, accounts, p. 97. witness, see Witnesses. DISCRETION, of court as to admission of evidence, pp. 49, 391. DISEASE, see Health and Disease. INDEX. 927 DISORDERLY HOUSES, evidence as to general reputation of house, p. 321. general reputation of frequenters and inmates, p. 321. specific acts to show character of house, p. 322n. DISORDERLY PERSONS, evidence on question of identity in prosecution for disorderly con- duct, p. 556n. DISTANCE, at which obejct visible, p. 856. comparison, p. 856. judicial notice as to, p. 642. time necessary for specified distance, p. 859. within which sparks from engine will set fire, p. 859. DITCHES, abandonment of rights in, pp. 17, 18. DIVORCE AND SEPARATION, as to adultery, see Adultery. competency of judgment in, to prove status, p. 833n. evidence as to general reputation in action for, pp. 318n, 320n. evidence of intemperance in action for, p. 504n. presumption of existence of, p. 681n. presumption of marriage from decree of separation, p. 679. proof of conversation between husband and wife to show ground for separation, p. 826. DOCUMENTARY EVIDENCE, abstract of contents of original instrument to show subsequent alter- ation, p. 209. abstracts of records, pp. 50, 52. account and account books, see Accounts, admission of part of document as requiring admission of whole, pp. 51, 404. affidavits to prove service of notice, p. 827. almanac, p. 697. ancient document, recitals in, p. 408. assessment roll to show title, p. 864. bank pass book, p. 472. baptismal certificate, p. 243. church record, pp. 243, 408. collateral records and memoranda as evidence of date, p. 403. computations, by experts, p 220. deeds, p. 5. effect of time of acknowledgment on admissibility of, p. 115. founded on judicial proceedings, p. 863. recitals in, pp. 248, 408. unacknowledged or defectively acknowledged deed, p. 114. ^28 INDEX. DOCUMENTAEY EVIDENCE— ( contirmed ) . depositions, p. 848. deposit ticket, p. 433. document delivered in same envelope as document already in evi- dence, p. 661. duplicate of original contract to show alterations, p. 209. effect of alteration on competency of instrument, p. 200. alterations in certified copy on admissibility, p. 209. entries in family Bible, p. 408. entries in records in ordinary course of business, p. 860. entries of official acts by person since deceased to show presence at certain place at certain time, p. 44. entries of order of court in common rule book or in minutes before record is made up, pp. 771, 772. ■entry in book or memorandum to prove forgotten fact, p. 489. entry of order of court to permit proof of, p. 772. envelope in which document was delivered, p. 661. extracts from books and records, p. 52. field notes, p. 248. findings of coroner, p. 316. government survey, p. 712. herd book on question of breed, p. 258. inscriptions on sign, card, and label to show proprietorship, p. 261. judgment, pp. 797, 833. judgment roll on question of boundary, p. 251n. market reports as evidence of value, p. 877. marriage certificate, p. 676. memorandum of measurements, p. 684. mistake in certified copy offered in evidence, p. 695. mortality tables, p. 698. authentication of, p. 699. "newspapers, p. 721. offering one copy of issue of newspaper, p. 804. official appraisal, p. 222. official certificate as to lack of entry in public record, p. 717. -official certificate of inspection, p. 353. -official records or registers, p. 758. as evidence of date, p. 403. as to weather, p. 881. of death, pp. 408, 415. of unacknowledged or defectively acknowledged instrument, p. 114. proof of seal by record, p. 826. ■on question whether deed was absolute or intended as a mortgage, p. 420. ■order made in special proceeding, p. 770. part of connected correspondence, p. 657. INDEX. 929 DOCUMENTARY EVIDENCE— ( continued ) . passport on question of citizenship, p. 327. printed rules on question of duty and performance thereof, pp. 437n, 438. receipt as evidence of payment, p. 782. recital in deed or ancient document, pp. 248, 408. recitals in official instrument as evidence of official character, p. 756. records and inscriptions to show age, p. 159. records on question of delivery of instrument, p. 423. reports by agent or employee to employer, p. 148. reports of subordinates aa against public officer or corporation, p. 755, statute books and codes to show foreign law, p. 481 . stock book fraudulently kept on question of genuineness of stock certifi- cates, p. 490. telegrams, p. 44. testimony given in former proceedings, pp. 846 et seq. to show change of domicil, p. 5. to show nationality of vessel, p. 709. unsigned writing as evidence of terms of contract, p. 375. verdict of coroner's jury in action for negligent killing, p. 66. wills, p. 5. containing admissions, p. 657. from debtor in reply to demand of payment as proof of new promise, p. 720. letter uncalled for and returned as evidence of death, p. 415. letters and telegrams constituting "onnected correspondence, p. 841. mere possession of letters addressed to one as rendering them competent against him, p. 661. of agent, p. 661. on question of acceptance of goods purchased, p. 58. proof of authorship of letters, 658. to show abandonment of contract, p. 3. to show abandonment of domicil, p. 5. to show date of occurrence, p. 403. to show intent of absentee in departing, p. 46. to show reason for absence from home, p. 44. to show making of contract, p. 377. DOCUMENTS, as standard of comparison of handwriting, pp. 526, et seq. opinion evidence as to age of, p. 165. DOGS, evidence as to character of dog in action for injury by, p. 320n. proof of habit of, p. 503n. trailing of person by bloodhounds, p. 245. DOMICIL, see also Residence. Abb. Facts — 59. 930 IHDEX. DOMICIL — ( contimted ) . burden of proof, p. 4. declarations, p. 5. documentary evidence, p. 5. intent, pp. 436, 611. mode of proof, generally, p. 6. presumptions, pp. 4, 435. res gestce, p. 435. DOUBLE, proof of existence of "double" on question of identity, p. 56(^^. DOWER, direct testimony on question of claim of, p. 328. election between testamentary provision and dower, p. 625. evidence to show motive for endeavoring to defeat, p. 704n.. DRAINS AND SEWERS, abandonment of servitude of drainage, p. 17. DRAWBRIDGE, negligence in leaving gate on, open, p. 276n. DRUNKENNESS, see Alcoholism. customary manner of acting, p. 631. direct testimony, p. 630. intemperate habits generally, p. 631. of defendant in divorce proceeding, p. 504n. of plaintiff in personal injury action, p. 503n. of servant, proof of, on question of competency, p. 325. mental incapacity resulting from, see Insanity, presumption and burden of proof, p. 632. single instance of, p. 503n. weight of evidence, p. 632. DUMMY, bound by evidence competent against real party in interest, p. 436i. transfer of stock to, p. 436. DUTY, direct testimony. performance, p. 438. scope of duty, p. 437. presumption of performance of, p. 753. printed rules or instructions, p. 438. DYING DECLARATIONS, civil cases, p. 440. communications by signals, pp. 448, 829. form and completeness of declaration; oral or written, p. 447.. in favor of defendant, p. 441. INDEX. 931 DYING DECLARATIONS— (cojitmued). mental and physical condition, p. 443. belief in after-accountability, p. 446. questions for court or jury, p. 449. right to impeach or contradict and to sustain declarant, p. 450. subject of declarations, p. 442. time elapsing between declaration and death, p. 447. weight to which entitled, p. 451. when there is other evidence of the same facts, p. 448. whose declarations admissible, p. 442. DYNAMITE, forcing frozen dynamite into drill hole, p. 268n. E EARNING CAPACITY, proof of, in action for death or personal injury, pp. 336, 337. EASEMENTS, possession of easement in land as notice, p. 738. Loss or abandonment. effect of nonuser generally, p. 6. highway, p. 9. mill privileges, p. 22. of abutting owner, p. 8. railway right of way, p. II. water rights. flowage, p. 18. irrigation; ditches; prior appropriation, p. 18. presumptions and burden of proof generally, p. 17. ways. declarations, p. 17. deviation or use of substituted way, p. 14. nonuser generally, p. 12. obstructing or cutting off access, p. 15. whose acts in attempting to abandon are binding in dominant owner, p. 16. EFFECT, effect of injury or operation, expert witness, p. 452. nonexpert witness, p. 453. testimony of person injured, p. p. 452. EJECTMENT, to recover mining claim, pleading, p. 32. ELECTION, extrinsic evidence of testator's intent to put beneficiary to election, p. 625. 932 INDEX. ELECTION OF RIGHT OR REMEDY, decisive act, p. 455. delay in rescinding as an election to afiSrm, p. 816. direct testimony, p. 455. ELECTIONS, burden of proving that election officer is not member of political party to which he is attributed, p. 689. evidence as to filing of certificate of nomination, p. 475n. judicial notice as to primary elections, p. 642. of number of votes cast at election, p. 642. of qualifications of voters, p. 642. opinion evidence as to cause of marks on ballots, p. 304n. proof of declarations to show non-citizenship, p. 328. taking out naturalization papers subsequent to election as admission of lack of qualification to vote, p. 327. voting as evidence of abandonment of domicil in other place, pp. 6n, 25n. ELECTRIC CARS, opinion as to proper management of, p. 267n. ELECTRICITY, care in installation of electric wires in building, p. 268n. judicial notice as to properties and uses of, p. 633. precaution necessary in repairing broken wires, p. 268n. presumption of negligence from breaking of wire, p. 283n. from escape of electricity, from street railway, p. 282n. from happening of injury, pp. 285n, 286n, 289n. ELECTRIC WIRES, See Electricity. ELEVATORS, expert testimony as to proper construction of, p. 366n. presumption of negligence from injury to passenger on, p. 280. EMBEZZLEMENT, circumstantial evidence, p. 456. other crimes, p. 456. EMINENT DOMAIN, burden of proof as to necessity of taking land, p. 713. EMPLOYMENT, see also Master and Servant; Principal and Agent. appearance of being in service, p. 457. presumption of employment, from control of property, p. 457. from services rendered, p. 458. of continuance of relation, p. 460. INDEX. 933 ENCROACHMENTS, upon highway, as evidence of abandonment, p. 10. ENGINES, evidence as to horse power of, p. 549. expert evidence as to proper construction of, p. 367n. ENTRY, of court order, p. 771. EQUITABLE ESTOPPEL, see Estoppel. ERASURES, in account books, effect on admissibility in evidence, p. 84. ESCROW, parol evidence of escrow agreement, p. 33 In. ESTOPPEL, as basis of waiver, p. 880. burden of proof, p. 461. by admission in action, p. 462. by forbearing to sue, p. 463. by silence, p. 462. by taking position before the court, p. 463. design to mislead, p. 461. injury to other party, p. 461. of one in possession, to assert claim against purchaser or encumbrancer, pp. 738, 739. reliance of other party, p. 461. EVIDENCE, admissions, see Admissions and Declarations. best and secondary evidence, see Best and Secondary Evidence. burden of proof, see Burden of Proof. conversation, proof of, generally, see Conversation. declarations, see Admissions and Declarations. demonstrative evidence, see Demonstrative Evidence. dirept testimony, see Direct Testimony. documentary evidence, see Documentary Evidence. handwriting, proof of, generally, see Handwriting. hearsay evidence generally, see Hearsay; Bes Gestae. identity, proof of, see Identity. insanity, see Insanity. intent, see Intent ; Motive and Purpose. judicial notice, see Judicial Notice. knovpledge, proof of, see Knowledge. malice, see Malice. marriage, proof of, see Marriage. measurements, proof of, see Measure. 934 INDEX. EVIDENCE— ( continued ) . motive, see Motive and Purpose, name, see Name and Designation, negative, proof of, see Negative, opinion evidence, see Opinions and Conelusiona. ownership, proof of, see Ownership. parol and extrinsic evidence concerning writings, see Parol and Ex- trinsic Evidence, presumptions, see Presumptions, residence, proof of, see Residence, title, see Title, value, see Value, tampering vrith evidence, p, 838. usage and custom, see Usage and Custom. Relevancy and materiality generally. abandonment by husband or wife, p. 27. of homestead, p. 24. of inventor's claims, p. 30. of railroad right of v^ay, p. 11. absence of person from state, pp. 43, 44, of alleged accomplice, p. 47. acceptance of deed or lease, p. 60. of order, p. 60. acquiescence, p. 121. adultery, p. 151. adverse possession, p. 155. agency, pp. 176-178, 180. authority of agent, pp. 185, 828. belief or impression produced on witness's mind at time of occurrence, p. 239. under which witness did act, p. 237. reasons for belief, p. 239. bloodhounds, trailing by, pp. 245, 556n. boundary, p. 246. practical location, p. 257. capacity of machine, p. 263. to earn wages, p. 42. cause of death, p. 316. similar occurrences or injuries to show cause, p. 311. character, particular instances to show, p. 322. general reputation as to, pp. 274n, 318. ■comparison of shoes of person with footprints, p. 556n. •condition in life, number of children, etc., p. 334. correctness of weight, p. 883. corroborative evidence, see Corroboration, death, p. 408. domicil, change, pp. 6, 435, 436. INDEX. 935 aeVIDENCE— ( continued ) . evidence competent against real party in interest aa competent against dummy, p. 436. family traditions, p. 817. finding of stolen property on person, p. 556n. findings of coroner, p. 316. fictitious person, p. 473. bank account witli person as showing that he is not a fictitious person, p. 472. habits, pp. 273, 274n, 631. ignorance of party of effect of contract made, p. 378. impeachment or contradiction of witness, see Witnesses, infancy, physical appearance, p. 564. inscription on tombstone, p. 408. interest, rate of, p. 628. judgment awarding possession as evidence against third person, p. 797. lack of entry in public record, p. 717. mention to third person of facts forgotten by witness, p. 488. necessity of an administrator, p. 715. omitting name of person from testimony, p. 707. other crimes, p. 456. other like purchases, on question to whom credit was given, p. 401. other similar transactions on question as to terms of contract, or meaning thereof, p. 374. probability or improbability of transaction, p. 373. proprietorship, p. 261. quality, p. 806. quantity, pp. 807, 808. reason for act, p. 811. reasons for refusal of demand, p. 430. reputation, p. 318. for sobriety, p. 274n. for truth and veracity of one making dying declarations, p. 450. similarity of tracks of horse, p. 556n. speed, p. 832. time and distance, p. 856. trailing by dogs, pp. 245, 556n. wealth, p. 882. whether it was cold enough to freeze, p. 882. with whom contract was made, p. 377. Negligence; care. condition at another time or place, p. 348. evidence that person was short-sighted and wore spectacles on issue of contributory negligence, p. 42. general habits, p. 273. ■other accidents, p. 274. 936 INDEX. EVIDENCE — {continued). precautions of person charged with negligence, p. 275. subsequent to the fact, p. 276. Explanation and rebuttal. admissibility generally of evidence in rebuttal, pp. 813 et seq. anticipatory rebuttal, p. 814. cumulative testimony in rebuttal, p. 814. explaining admission, p. 466. explaining and corroborating denial, p. 465. explaining impeaching evidence, p. 466. explaining nonproduction of evidence, p. 466. rebutting evidence as to intent, p. 627. rebutting evidence of abandonment of real property, p. 33. rebutting evidence of delivery of instrument by proof of condition, p. 425. rebutting evidence of other cause than one claimed, p. 314. rebutting evidence tending to contradict dying declarations, p. 4S0. rebutting of evidence that testatrix was weak in body and mind, p. 42. rebuttal of presumption of credit, p. 402. rebuttal of secondary evidence of contents of accounts, p. 98. rebuttal of testimony denying conversation, p. 382. to repel imputation of bias of witness, p. 242. Weight, effect and sufficiency. abandonment by husband or wife, p. 27. of contract, p. 3. of easement of way, p. 14. of highway, p. 10. of homestead, p. 24. of railroad right of way, p. 11. absence from state, p. 48. acceptance of bill of exchange, p. 64. of goods, to satisfy statute of frauds, p. 63. of land dedicated to public use, p. 62. accord and satisfaction, p. 68. adultery, pp. 150, 151. adverse possession, p. 157. agency, p. 175. application of payments, p. 221. bank pass book as account stated, p. 104. concealment, p. 333. conspiracy, p. 365. death, p. 408. dying declarations, p. 451. effect of injury or operation, pp. 452, 454. embezzlement, p. 456. expert's opinion, pp. 586, 768, et seq. fraud in inducing contract, p. 563. INDEX. 937 EVIDENCE— ( continued) . freedom from contributory negligence, p. 278. gift, p. 494. government survey, p. 712. identity, p. 555. insanity, pp. 573, 586 et seq, 595, 599, intent testimony of party as to, p. 612. in annexing fixtures, p. 476. that deed should be mortgage, p. 421. interest, right to, and rate thereof, p. 628. intoxication or intemperate liabits, p. 632. judicial decisions in other state as to constitutionality of one of its statutes, p. 482. knovfledge, p. 649. mistake, p. 697. mortality tables, p. 699. naturalization, p. 711. opinions as to sanity, pp. 586, et seq. 595, 599. order of court as evidence of succession and revival, p. 821. photographs, p. 793. positive of greater weight than negative testimony, p. 632. presumption as to correctness of date, p. 406. ratification, p. 810. to justify setting aside award, p. 226. to impeach certificate of acknowledgment, p. 119. to repel presumption of delivery of instrument, p. 424. of receipt of letter, p. 665. to show that absolute deed was intended as a mortgage, p. 421. to throw upon adverse party burden of showing existence of alleged fictitious person, p. 473. usage, pp. 870, 871. want of care or prudence, pp. 278, 300. Admissibility under particular pleadings; variance. admissibility under general denial, pp. 32, 377, 431. admissibility of excuse for nonperformance under allegation of per- formance, p. 464. amending pleading to meet proof, p. 836. difference between description in complaint in ejectment and proof as to boundaries, p. 256. evidence in rebuttal, p. 813. necessity of pleading illegality to permit proof of, p. 561. necessity of pleading meaning of abbreviations to let in oral evidence as to meaning, p. 38. production of altered instrument where allegation follows the original, p. 195. proof of abandonment of right, without special plea, p. 32. proof of allegation of threatening by acts as well as words, p. 855. 938 INDEX. EVIDENCE — ( continued) . proof of subsequent ratification under allegation of authority, p. 808. variance as to name, pp. 38n, 694. between allegation that vendor agreed to furnish new article if first one was not satisfactory, and proof offered, p. 824. ^ in negligence case, p. 277. EXCUSE, for nonperformance, p. 464. for not tendering, p. 464. necessity of alleging, p. 464. EXECUTION, as condition precedent to creditor's suit, p. 872n. EXECUTORS AND ADMINISTRATORS, admissibility in evidence of administrator's deed to show title p. 863n. letters of administration as proof of death, p. 414. necessity of action against administrator before creditor's action to set aside fraudulent conveyance by decedent, p. 872. necessity of an administrator, p. 715. presumption of consent of executors to specific legacy, p. 357. proof of administrator's financial condition in action on bond, p. 337. EXECUTORY AGREEMENT, oral evidence as to consideration, p. 363. EXEMPTIONS, presumption of intent to evade exemption laws, p. 617. EXHIBITION, of child, on issue of paternity, p. 780. of instrument to expert, p. 308. of machine in court, p. 369. of person, pp. 341, 551, 560. of physical object to show cause of injury, p. 314. EXPERIMENTS, in court, pp. 41, 353, 472. out of court, p. 41. to corroborate opinion evidence, p. 304. EXPERT TESTIMONY, see Opinions and Conclusions. EXPLANATION, admissions, p. 466. burden of proving- truth of, p. 466. fact stated not thereby proved, p. 466. of account, p. 97. of alteration in instrument, pp. 202, 204, 207, 209. of denial, p. 465. of impeaching evidence, p. 466. INDEX. 939 EXPLANATION— ( continued ) . of misspelling of fictitious name, p. 473. of nonproduction of evidence, p. 466. of redirect, p. 465. EXPLOSIONS, burden of proof in action for injury from, p. 279n. evidence of leaks in gas pipe at other places than that at which explosion occurs, p. 351. opinion evidence as to cause of, p. 302n. presumption of negligence from, p. 283n. JIXPRESS COMPANY, judicial notice as to business of, p. 259. judicial notice as to time necessary for transportation of express matter, p. 634. presumption of shipper's knowledge of terms of express company's receipt, p. 652n. F FACTS PUTTING ON INQUIRY, reason for disregarding of, by one charged with want of good faith, p. 499. FALLING OBJECTS, presumption of negligence from injury to passenger by, p. 289n. FALSE IMPRISONMENT, evidence as to character in action for, p. 319. evidence to prove motive for detention, p. 705. FEAR, evidence as to manifestations of, see Feelings. FEDERAL CONSTITUTION, judicial notice of, p. 637. FEELINGS, declarations describing feeling, p. 469. direct testimony, p. 467. experiment in court, p. 472. feigning, p. 471. natural manifestations of present feeling, p. 469. TEIGNING, expert testimony as to whether person was feigning pain, p. 471. ■FENCES, effect of erection of, across easement of way, p. 15. erection of, in highway as evidence of abandonment, p. 10. FICTITIOUS PERSONS, see also Dummy. 940 INDEX. FICTITIOUS PERSONS— (continued). bank account as evidence that person is not fictitious, p. 472. declarations, p. 472. effect of use of fictitious name, p. 474. explanation, p. 473. fictitious grantee, p. 474. inquiries, p. 473. FIELD NOTES, admissibility in evidence on question of boundaries, p. 248. FIGURES, judicial notice of abbreviations of, p. 34n. FILING, date of, p. 407. mode of proving, p. 475. FINANCIAL CONDITION, see Insolvency, Solvency, and Final Condition. FIREARMS, direct testimony as to condition of, p. 347. FIRE INSURANCE, See Insurance. FIRES, opinion as to negligence in causing, pp. 268n, 269n. as to proper safeguards to prevent spreading of, p. 269n. as to whether building would have been destroyed by, p. 309n. precautions of person charged with negligence as to, p. 275n. presumption of negligence from happening of, p. 283n. set by sparks from railroad locomotive, see Railroads. FIXTURES, direct testimony of party as to whether fixtures could be removed* without injury, p. 476. evidence to show intent as to, p. 476. FLOUR, evidence as to quality of, p. 805n. FLOWAGE, loss or abandonment of right of, pp. 18, 22. FLUME, abandonment of easement in land for, p. 19. F. 0. B., judicial notice of meaning of, p. 35n. FOOD, evidence as to adulteration of milk, p. 805n. evidence as to quality of flour, p. SO.jn. expert testimony as to effect of eating unwholesome meat, p. 453n. INDEX. 941 FOOTPRINTS, as evidence of identity, p. 556n. FOREIGN LAW, copy of statute; omissions and alterations, p. 482. impeaching, p. 482. judicial decisions, as to constitutionality, p. 482. judicial notice of, p. 637. oral evidence, as to construction, p. 480. what law is, p. 479. presumptions as to, p. 477. presumption of knowledge of, p. 655. statute books and Codes, p. 481. usage in territories before acquisition by United States, p. 481. FORFEITURE, waiver of, see Waiver. FORGERY, by use of fictitious name, p. 474. declarations out of court by persons whose names are charged to have been forged, p. 149. disputed handwriting, see Handwriting, negligence in loaning money on forged note, p. 276n. ratification of forged signature, p. 181n. FORGOTTEN FACT, aiding memory by otherwise irrelevant inquiry, p. 483. memoranda refreshing memory, p. 484. inspection and cross-examination, p. 487. voluminous writings, p. 487. witness unable to read or write; reading to in presence of jury, p. 488. writing not an original, p. 486. mention to third person, p. 488. routine or habit, p. 483. FORM, of assignment, p. 233. of denial in pleading, p. 431. of dying declarations, p. 447. of question to one giving opinion, pp. 270, 307. FORMER TESTIMONY, see Testimony Given in Former Proceeding. FOUNDATION, for admission of dying declarations, p. 449. for admission of secondary evidence, p. 385. for contradiction of dying declarations, p. 450. 942 INDEX. FRAUD AND DECEIT, as ground for admission of oral evidence to vary receipt, p. 786. burden of proof, pp. 372n, 496. character evidence in action to set aside deed for, p. 318n. cogency of evidence as to, p. 563. fraudulent concealment of cause of action, p. 333. identity of, traced through commingling of assets, p. 559. impeachment of order of court for, p. 773. in securing execution of will, p. 570. intent, p. 611. notice to agent as notice to principal where agent is perpetrating a fraud, p. 744. notice to charge with, p. 739. oral evidence as to, p. 562. plaintiff's testimony that he relied on defendant's representations, pp, 700n, 701n. presumption as to, p. 372n. FRAUDULENT CONVEYANCES, necessity of bringing action against administrator before instituting action to set aside conveyance, p. 872n. FUGITIVE, presumption that fugitive is nonresident, p. 819. GAMING, evidence as to intent in purchasing on margin, p. 611. oral evidence that contract was a wager contract, p. 561. presumption as to intent to malje gaming contracts, p. 617. GAS, burden of proving negligence in action for injury by escape and explosion of, p. 279n. evidence of leaks in other places than that at which explosion occurs, p. 3 5 In. GENERAL DENIAL, see Denial. GENUINENESS, acknowledged instrument, p. 490. bank notes, p. 489. burden of proof, p. 490. direct testimony as to genuineness of mark, p. 673. handwriting, see Handwriting. petition, p. 490. several signatures, effect of proving some not genuine, p. 490. standards for comparison of handwriting, p. 532. statutory petition, p. 490. stock certificates, p. 490. INDEX. 943 GEOGRAPHY, judicial notice as to geographical matters, p. 642. GIFT, consideration, see Consideration, declarations of donor, p. 491. delivery, see Delivery, direct testimony, p. 490. mental capacity of donor, p. 567. sufficiency of proof of, p. 494. Presumption and burden of proof. acceptance of gift, pp. 54, 55, 494. validity of gift, p. 491. GOD, belief in, as affecting admissibility of dying declarations, p. 448. GOOD FAITH, direct testimony, p. 495. information on which person acted, p. 499. presumption and burden of proof, p. 496. reason for disregard of notice putting on inquiry, p. 499. right to prove affirmatively, p. 494. GOVERNOR, judicial notice of proclamation by, p. 638n. GRAIN, opinion as to how much a given field will produce, p. 309n. GRANT, presumption of, pp. 153, 500. presumption of acceptance of, p. 54. to fictitious person, p. 474. GRIEF, evidence as to, generally, see Feelings. GUARANTY, oral evidence as to consideration, p. 363. HABITS, as to care or negligence, p. 273. direct testimony, p. 502. limits of time, p. 503. presumption of continuance, p. 504. proof of, on question of identity, p. 555n. reputation, p. 504. single instance; and repetition, p. 502. HAIR, as aid in identification of person, p. 555n. 944 INDEX. HAND CARS, opinion evidence as to speed, p. 830. opinion as to whether danger of riding on, was obvious, p. 269n. HANDWRITING, see also Mark. necessity of proving handwriting in signature to bank notes where genuineness is questioned, p. 489. Testifying as to one's own handwriting. concealing part of writing, p. 508. direct testimony; authorizing signature, p. 505. writing in court, p. 506. Testimony of experts, with or without the aid of standards or comparison. cross-examination for purpose of contradiction, p. 525. cross-examination on differences, p. 525. direct opinion founded on comparison, p. 521. expert defined, p. 521. qualification of witness, p. 522. testimony to peculiar characteristics, p. 524. Testimony of nonexpert from knowledge of handwriting. acquaintance with handwriting; general rule, p. 509. competency of witness generally, p. 510. cross-examination for purpose of contraJiction, p. 520. form of question, p. 510. means of knowledge. having received letters, p. 514. having seen ancient documents, p. 514. having seen communication received in usual course of business, etc., p. 517. having seen genuine writing, p. 510. having seen write, p. 511. not secondary evidence, p. 509. ordinary witness cannot make comparison, p. 518. privilege of professional relation, p. 516. testimony competent, though not positive, p. 515. testimony of interested witness or party to handwriting of deceased, etc., p. 517. testing knowledge, p. 518. refreshing memory on cross-examination, p. 519. requiring to pick out genuine writing, p. 519. witness prepared out of court, p. 515. refreshing memory, p. 516. Standards of comparison, with or mthout the aid of experts. authentication of standards of comparison, p. 533. comparison by jury or referee, p. 538. disputed writing and standard to be produced before comparison, p. 540. INDEX. 945 SLANDWrnTma- -{continued). document not already in the case, p. 526. genuineness of standards, a question for the court, p. 532, irrelevant documents as standards, p. 828. writing of third person, p. 529. papers in the records, p. 527. taking to the jury room, p. 539. what is considered as in evidence, p. 527. what law controls, p. 530. Photographs, letter-press copies, magnifying glass, and superimposition, letter-press copies, p. 542. magnifying glass, p. 542. photographic copies, p. 539. tracing and superimposition, p. 543. Circumstantial evidence and admissions. admission of alleged signer, p. 545. aptitude to imitate, p. 543. condition of alleged writer, p. 544. opportunity, p. 544. peculiar usages of language, p. 543. HEALTH AND DISEASE, direct testimony by person affected, p. 545. disease of animals, p. 547. expert testimony, p. 546. matter of observation, p. 545. mental condition of person, see Insanity. opinion as to cause of disease, p. 305n. HEAKING, of conversation by third person, evidence as to, p. 548. of sound, direct testimony as to, p. 548. HEARSAY; EES GEST^, admissions or declarations, see Admissions and Declarationa. as to abandonment of homestead, p. 23. as to age, p. 162. as to boundary, p. 253. as to credit, to wliom given, p. 401, as to date, p. 402. as to death, p. 413. as to domicil, p. 435. as to gift, p. 491. as to name, p. 707. as to ownership, p. 776. answers given to inquiries to show absence of person, p. 45. certificate of expert as to breed as hearsay, p. 258. corroboration of, p. 390. dictagraph, conversation over, p. 434. Abb. Facts — 60. 946 INDEX. HEARSAY; RES GESTAE— (coretmued) . dying declarations, see Dying Declarations. gestures, p. 469. in proof of fact that disputed transaction occurred, p. 375n. moans, p. 469. natural manifestations of present feeling, p. 469. outcries, p. 469. record of height and measurements of accused person as hearsay, p. 684. telephone conversation, pp. 842, 843. testimony given in former proceedings, pp. 846 et seq. unsigned writing as part of res gestcs of contract, p. 375. what admissible as part of res gestcs to show to whom credit was given, p. 401. General reputation. as to agency, p. 168. revocation of agency, p. 193. as to absence of person from state, p. 43. as to boundary, p. 253. as to care and skill, p. 324. as to character, pp. 318, 320, 396. as to death, p. 413. as to insanity, p. 601. as to marriage, p. 678. as to ownership, p. 776. as to residence, p. 817. as to solvency or insolvency, pp. 401, 605. as to title, pp. 155, 861. to show knowledge of fact, p. 656. Confidential communications. between husband and wife, pp. 122, 826. telegrams as, p. 839. to notary, p. 119. to attorney, pp. 122, 516. to physician, p. 579. HEIR, testator's intent to disinherit, p. 624. HERD BOOK, admissibility in evidence, p. 258. HIGHWAYS, acceptance of, pp. 57, 62. easements of abutting owner, loss or abandonment of, p. 8. intent to dedicate land for street, p. 610. judicial notice of custom to construct vaults under sidewalks, p. 634. of existence of location of streets, p. 643n. of names of, p. 707. INDEX. 947 HIGHWAYS— ( contiMued ) . opinion as to necessity of straightening road, p. 715n. as to value of property before and after change of grade, p. 876. photograph of streets and premises injured by cliange of grade, p. 354. Aiandonment of. burden of proof, p. 9. presumptions, p. 9. weight of facts, p. 10. Injuries on, condition at other places, pp. 350n, 351n. condition at other time, pp. 348n, 34i)n. direct testimony as to condition of, p. 346n. opinion evidence in action for injury, pp. 66, 267n. other accidents, pp. 274, 312n. photograph of defective highway, p. 354. HISTORY, judicial notice as to historical matters, p. 642. HOLIDAYS, judicial notice of legal holidays, p. 633. HOMESTEAD, admissibility of intent of wife as to selection on question of intent of husband, pi 613. defective acknowledgment by wife of deed conveying, p. 116. Abandonment, burden of proof, p. 22. declarations, p. 23. hearsay, p. 23. intent to abandon, p. 611. mode of proof generally, p. 24. opinions, p. 23. presumptions, p. 23. HOMICIDE, admissibility of evidence for purpose of corroboration, p. 394n. declaration by defendant, p. 702n. dying declarations, see Dying Declarations. findings of coroner, p. 316. of motive, pp. 702n, 705. threats of violence by accused, p. 668n. HORSE, age of, p. 166. breed, see Breed. evidence of reputation of horse in action for injury by, p. 320n. opinion as to negligence in leaving horse, pp. 26!)n, 309n. opinion as to possibility of stopping team in time to avert accident, p. 269. presumption of negligence in case of runaway, p. 282. 948 INDEX, HORSE POWER, use of tables to show number of horse power obtained from given quatity of water, p. 549. HOUSE OF ILL FAME, see Disorderly Houses, HUSBAND AND WIFE, acknowledgment of deed by married woman, pp. 113, 116-119. adultery, see Adultery, agency of husband for wife, p. 180n. effect of separation, p. 193. presumption of, p. 184. agency of wife for husband, pp. 183, 184. effect of separation, p. 193. competency of widow to testify to husband's handwriting, p. 517n. confidential communications between, see Confidential Communications, criminal conversation, see Criminal Conversation, delivery of deed from husband to wife, p. 422n. divorce, see Divorce and Separation, dying declarations of wife in prosecution of husband for her murder, or vice versa, p. 442. evidence of intent of wife on question of intent of husband, p. 613. marriage, see Marriage. possession by husband and wife or by one of them as notice, p. 735. presumption of assent of married woman to contents of instrument in her possession, p. 228n. presumption that wife adopted seal opposite signature of her husband, p. 825. proof of citizenship of foreign-born woman, p. 328. Alienation of affections. declaration by defendant in action for alienating wife's affections, p. 702n. declarations of husband in action by wife for, pp. 26, 702n. direct testimony by plaintiff in action for alienation of affections of his wife as to fact of alienation, p. 701n. evidence as to motive of defendant in action for alienating wife's affections, p. 704n. evidence to show motive of husband in action for enticing away an- other woman's husband, p. 704. Abandonment. declarations, pp. 26, 434. presumptions, p. 27. relevancy, sufficiency, and weight of evidence, p. 27. HYPOTHETICAL QUESTION, to expert, see Opinions and Conclusions. INDEX. 949 IDENTITY, see also Misnomer; Ownership. answering to name, p. 555. commingled assets, identity of fraud traced through, p. 559. direct testimony, p. 552. identifying from voice, p. 553. uncertainty, p. 553. extrinsic evidence to identify legatee or devisee, p. 621. fraud, tracing through commingling of assets, p. 559. inspection in court, p. 551. marks and brands on cattle, p. 777n. name as evidence of identity, p. 557. necessity that witness identify person to whose admission he testifies, p. 125. of land or other property devised or bequeathed by will, p. 621 et seq. of parties and subject-matter to permit evidence of testimony of former proceeding, p. 849. of person speaking over telephone, pp. 842, 843. of seal, p. 824. oral evidence, p. 558. to identify document referred to in will, p. 217. to identify land described in instrument, p. 217. to identify person, p. 217. photographs, pp. 554, 790. pointing out person without naming him, p. 551. slight evidence, p. 555. Reiuttal of evidence as to. existence of a "double," p. 560. inspection and experiment, p. 560. name, difference of, p. 560. testing witness, p. 560. IGNORANCE, proof of ignorance of party as to effect of contract, p. 378. ILLEGALITY, oral evidence of, p. 561. proof of, under general denial, p. 432. ILLICIT RELATIONS, gift to person with whom one is living in illicit relations, p. 492, IMPEACHMENT, of award, see Arbitration and Award. of assignment, p. 235. of dying declarations, p. 450. of order of court, p. 773. of statute of other state, p. 482. of witness, see Witnesses. 950 INDEX. IMPLIED CONTRACT, see Contracts. INCOMPETENT PERSONS, as to proof of insanity, see Insanity. entries in account books by party who has since become insane as evidence, pp. 77, 80. incapacity as revocation of agency, p. 194. mental condition of person making dying declarations, p. 443. removal to insane asylum as abandonment of legal residence, p. 6n. INDEBTEDNESS, see also Debtor and Creditor. admissions as to, p. 550. direct testimony by witness as to state of account, p. 550. presumption that limitation of municipal indebtedness has not been exceeded, p. 550. INDEMNITY LANDS, filing of lease of, p. 475n. INDIANS, presumption that person has acquired status of a tribal Indian, p. 709. INDICTMENT, admission by plea to, p. 131. INDUCEMENT, cogency of evidence as to fraud inducing contract, p. 563. oral evidence of false representations inducing making of contract, p. 563. to doing of act, evidence to show, p. 400. INFANTS, acceptance of beneficial grant, p. 54. admissions oif infancy, p. 564. capacity to appreciate and avoid danger, p. 264. domicil of minor child, p. 435. dying declarations of, p. 442. evidence of declarations of infant too young to be sworn as witness, p. 146. hearsay evidence to prove age, p. 163. inspection of, by jury on issue of paternity, p. 780. necessaries, burden of proof as to, p. 713. opinion evidence as to, p. 714n. photograph of putative father on issue of paternity, p. 790. physical appearance as evidence of infancy, p. 564. INFORMATION, on which person acted as evidence of good faith, p. 499. TTATS! INITIALS, judicial notice of meaning of, p. 34n. INDEX. 951 INJUNCTION, bond, evidence to show that damage was caused otherwise than by injunction, p. 313. INITKEEPEES, presumption of negligence from injury or loss, p. 281. INNOCENCE, presumption of, p. 716. INQUIRY, by purchaser or mortgagee of land occupied by one other than grantor or mortgagor, p. 726. for purpose of finding alleged fictitious person, p. 473. INSANE PERSONS, see Incompetent Persons; Insanity. INSANITY, appearance and conduct of defendant in lunacy proceedings, p. 601. belief in spiritualism, witchcraft, etc., p. 602. conduct and circumstances, p. 601. declarations, p. 600. general reputation, p. 601. photographs, p. 600. presence of defendant in lunacy proceedings, p. 601. Presumptions and iurden of proof. in general, p. 566. capacity of one contracting marriage, p. 572. continuance of insanity, p. 578. alcoholism and alcoholic insanity, p. 576. habitual insanity, p. 574. temporary insanity, p. 576. continuance of lucid interval, p. 577. presumption of insanity from suicide, p. 573. with relation to contracts and conveyances, p. 567. with relation to wills, p. 568. as to fraud and undue influence, p. 570. burden of proof after probate, p. 571. Expert opinions. admissibility generally, p. 578. cross-examination; contradiction, p. 585. from observation or examination, p. 580. from the evidence, p. 581. on hypothetical questions or statements, p. 582. evidence in support of hypothesis, p. 583. form of questions, p. 584. hypothesis; upon what based, p. 582. privilege of witnesses, p. 479. qualifications of experts, p. 584. weight, p. 586. 952 INDEX. INSANITY— ( continued ) . as affected by character, bias, and nature of the question, p. 588. as affected by facts and opportunity to observe, p. 587. as compared with nonexpert opinions, p. 589. as compared with other expert opinions, p. 588. as question for the jury, p. 590. Nonexpert opinions. general rules, p. 590. acquaintance necessary, p. 593. cross-examination, rebuttal, and impeachment, p. 595. time to which opinion relates, p. 584. weight, p. 595. who may give, p. 592. Opinion of subscribing witness. admissibility generally, p. 597. contradiction; weight, p. 599. necessity of giving, p. 597. INSCRIPTIONS, admissibility in evidence to show age, p. 159. INSOLVENCY, SOLVENCY, AND FINANCIAL CONDITION, accounts, p. 604. competency of witness to testify to, p. 336. direct testimony, p. 603. hearsay and general reputation, pp. 340, 401, 605. presumption and burden of proof, p. 606. proof of financial condition, as affecting damages, p. 336. relevant facts, p. 604. relevancy of evidence as to, on question of execution of contract, pp. 373n, 374n. INSPECTION, by adverse counsel of memoranda used to refresh memory of witness, p. 487. evidence of official inspection on question of condition of thing or place, p. 353. of altered instrument by jury, p. 202. of machine, p. 369. of witness to determine qualifications and intelligence, p. 325. on issue of age, p. 165. on issue of identity, p. 551. on issue of quality, p. 806. on issue of pregnancy, p. 801. to determine condition of things, pp. 352, 353. to determine physical condition, pp. 341, 343, 801. view by jury, p. 353. INSURANCE. abandonment of insured vessel, p. 28. INDEX. 953 INSURANCE— ( continued) . abandonment of policy or certificate, p. 28. age of insured, p. 131. assent by insured to contents of policy retained, p. 228n. to rules in book delivered to him, p. 229. declarations of agent to show waiver of forfeiture, p. 880. evidence as to what effect facts respecting habits of the insured would have on the minds of the insurers, p. 701n. identity of subject, p. 559n. insurable interest of person claiming under grant from fictitious per- son, p. 474n. judicial notice of custom of insurance agent to represent several com- panies, p. 260n. life tables used by insurance companies, p. 699. parol evidence as to intent to protect second mortgagee, p. 620. of collateral agreement with agent, p. 330n. of waiver by agent of condition in pdlioy, p. 880. to explain contract, p. 218. to vary contract, p. 332n. presumption that insured read application, p. 652n. receipt of mailed notice of assessment, pp. 664n, 666n. receipt of notice of falling due of premiums, p. 666n. underwriter's knowledge of Lloyd's lists, pp. 653n, 654n. statements by assured outside of his application as evidence against beneficiary, p. 139. testimony of officer of company that policy was issued on representa- tions of insured, p. 701n. ' Hisks and causes of loss, injury, and death. character of insured where arson is claimed as defense, p. 3]8ii. declarations of insured on question of intent to insure life and then commit suicide, p. 703n. findings of coroner to show cause of death, p. 316. presumption and burden of proof as to suicide, p. 65. presumption of insanity from suicide, p. 573. prima facie proof of death from bodily injuries through externa], violent, and accidental means, p. 65. question whether injury was intentional or accidental, p. 67. rebuttal of defense of suicide, p. 313n. INTEMPERANCE, see Drunkenness. INTENT, see also Motive and Purpose. as to law which shall control contract, p. 614. as to residence, see Residence. concurrence of intent, p. 615. constructive intent, p. 616. 954 INDEX. INTENT — ( cGJitinued ) . declarations; res gestce, pp. 144, 614, 692. V/ in annexation of fixtures, p. 476. of absentee in departing, p. 46. other similar acts to show, pp. 615, 705. proof of reason for act where intent is material, p. 811. rebutting, p. 627. »/ to abandon husband or wife, pp. 26, 27. to authorize or adopt seal, p. 825. to change domicil, pp. 5, 6, 435, 436. to make election of right or remedy, p. 455. to make gift, p. 491. to ratify, p. 809. To abandon rights or property. generally, p. 31. domicil, pp. 5, 6, 435, 436. easement, p. 7. easement of way, p. 12. railway easement, p. 11. homestead, p. 22. invention, p. 30. patent or trademark, p. 29. real property, p. 33. water rights, p. 17. Right to testify as to one's own intent. "^ application of rule, p. 610. exceptions and limitations, p. 609. general rule, p. 608. test of admissibility, p. 609. weiglit and conclusiveness, p. 612. Right to testify as to intent of other perso», ^ in general, p. 612. manifested by demeanor, p. 614. Parol or extrinsic evidence to show. as to entries in account books, p. 99. as to merger of contract or title, p. 692. as to wills generally, p. 621. as to writings generally, pp. 609, 618. may beneficiary be put to his selection by extrinsic evidence of tes- tator's intention, p. 625. to show intent of testator in respect to disinheriting an afterborn child, p. 624. to show intent that real property should be charged with payment of legacies where will is silent on that point, p. 624. to show that deed absolute in form was intended as a mortgage, p. 412. to show that instrument not on its face a will was intended to take effect as such, p. 626. INDEX. 955 INTENT— ( continued ) . to show that instrument on its face a will was not intended as such, p. 626. to show that written assignment was made as collateral security, p. 236. to show that writing on draft was intended as acceptance, p. 59. to show that written contract was not intended to bind party, but merely to influence others, p. 378. to show what assets were intended to pass by assignment or bill of sale, p. 235. Presumptions and hurden of proof. intention as to consequences of act, p. 616. intent as to merger, p. 691. intent of testator, p. 616. to create monopoly, p. 618. to evade law, p. 617. INTEREST, of witness, see Bias, parol evidence, p. 628. previous understanding, p. 628. relevancy of evidence generally, p. 628. weight, effect, and sufficiency, p. 628. INTERIOR DEPARTMENT, judicial notice of regulations of, p. 753n. INTERNAL REVENUE. judicial notice of regulations by internal revenue commissioner, p. 753n. meaning of abbreviation in record of special taxes, p. 38n. INTERPRETED CONVERSATION, admissibility in evidence, p. 381. INTERVIEW, evidence of, on question of identity, p. 555. INTOXICATING LIQUORS, judicial notice of intoxicating character of mixed drink, p. 633. opinion that beer was lager beer, p.- 805n. INTOXICATION, see Alcoholism; Drunkenness. INVENTION, abandonment of, pp. 29, 30. IRRIGATION, judicial notice of necessity of, p. 713. loss or abandonment of right of, p. 18. JETTISON, expert testimony as to necessity of, p. 714. 956 INDEX. JOINT DEBTORS AND CREDITORS, parol evidence as to intent of parties in settling with one of several joint tort feasors, p. 620n. JOLTS, presumption of negligence from injury to passenger by, p. 289n. JUDGE, approval of instrument by, proof of, p. 222. judicial notice by, see Judicial Notice. JUDGMENT, admissibility in evidence of abstract of, p. 52. awarding possession as evidence against third person, p. 797. conclusiveness as to third parties of decree as to facts adjudicated, p. 833n. identity of judgment debtor, p. 558n. presumption of payment of, from lapse of time, p. 785. proof of status of judgment as against one not a party, p. 833. record of, as notice, p. 750n. JUDGMENT ROLL, admissibility on question of boundary, p. 251n. oral evidence to explain description in, p. 802. JUDICIAL DECISIONS, judicial notice of, p. 641. JUDICIAL NOTICE, ability of person with one hand, p. 39. abbreviations and symbols, pp. 34, 633, 721. acceptance of provisions of statute, p. 53. age of attorneys, p. 633. artesian wells, nature and sources of, p. 633. belief that vaccination is a preventative of smallpox, p. 633. by jury, p. 645. capacity to bear child, p. 800. chief commercial centers of state, p. 634. coincidence of days of week with days of the month, p. 634. commercial designation of an article, p. 706. computation of time, p. 634, contents of table, p. 633. cotton producing regions of state, p. 634. electricity, and its properties and uses, p. 633. height of human body and measurements of its several parts, p. 633. intoxicating character of mixed drink, p. 633. laws of mathematics, p. 633. legal holidays, p. 633. meaning of words, p. 633. mortality tables, p. 633. INDEX. 957 JUDICIAL NOTICE— {continued). nature and usual course of business, p. 259. oil mills, in state, p. 634. on what day of the week a given day of the month and year foil, p. 404. printers' abbreviations, p. 721. relation of Dominion of Canada to Great Britain, p. 709. seals, official, p. 824. of private corporations, p. 824. season for planting, p. 634. season at which crop matures, p. 634. synonym of English name In Chinese language, p. 707. telephones, p. 842. that photograph fairly represents subject, p. 788. time, computation of, p. 634. time for shipment by railroad from one place to another, p. 637n. time necessary for transportation of express matter, p. 634. time talten by mails between principal cities, p. 663. usual stock in trade, p. 634. that certain day of month falls on Sunday, p. 633. that month in statute means calender month, p. 633. that telegraph messages must be written, p. 634. Jlcuilroad and street railway matters. railroad business, generally, p. 634. authority of brakeman to put trespassers oflf freight train, p. 634. authority of conductor to carry passenger without payment of fare, p. 634. duty of brakemen to obey conductor's orders, p. 634. membership of railroad corporation in traffic association, p. 689. necessity of spark arrester on steam engine, p. 713. time for shipment by railroad from one place to another, p. 637n. that street railway is common carrier of passengers, p. 634. necessity of protection of operators of cable or horse cars, p. 634. that trolley lines had not superseded horse cars at certain date, p. 634. JBeligious matters. general doctrines maintained by religious sects, p. 634. nature and powers of Roman Catholic Church, p. 634. that attendants of church are not limited to members, p. 689. that religious world is divided into sects, p. 634. ^Custom or usage. general custom, p. 637n. local usage, p. 637n. municipal affairs, p. 637n. •of political parties, p. 642. irate of taxation, p. 634. to construct vaults under sidewalks, p. 634. JjO/ws, treaties, etc. acts of Congress, p. 637. 958 INDEX. JUDICIAL NOTICE— ( continued ) . action of executive branch of government in enforcement of treaties or public laws, p. 638n. by Supreme Court of United States, p. 637. Constitution of United States, p. 637. entries in legislative journals, p. 637. foreign laws, p. 637. laws of state where court sits, p. 637. laws of other state, p. 637. laws prevailing in country before acquisition by United States, p. 637. municipal ordinances, p. 637. proclamation by executive, pp. 638n, 641. rules and regulations prescribed by other departments of government, pp. 638n, 753. system of law in other jurisdiction, p. 637. territorial extent of jurisdiction, p. 638n. treaties with the United States, p. 637. Official and judicial character and actions. census, p. 641. decisions of courts in other state, p. 641. decree in proceedings to punish violation of same as contempt, p. 641. facts shown by public archives, p. 641. official proclamations and messages of the executive, pp. 638n, 641. record in other case, p. 640. Political, historical and geographical matters. customs and usages of political parties, p. 642. distance between certain places, p. 642. ebbing and flowing of tide at certain place, p. 642. existence of certain river, p. 642. geography of state, p. 642. local political divisions, p. 642. location of certain county, p. 642. location of lands described by government substitution, p. 643n. matters of general public history, pp. 638n, 642. names of counties and streets, p. 707. navigability, pp. 642, 711. necessary qualifications of voters, p. 642. nonexistence of town of given name, p. 643. number of votes cast at state elections, p. 642. place, because of historical and geographical familiarity of its name, p. 642. population of counties, towns, and cities, etc., p. 634. primary elections, p. 642. situation of streets, squares, and public grounds of Boston, p. 643n. size of town, p. 642. source, course, and destination of river, p. 642. township line, p. 643n. INDEX. 959 JUDICIAL HfOTIC^—icontinued) . that locality between two towna is within specified county, p. 643n. that railroad runs through given county, p. 642. that water between two islands in given bay is in specified county, p. 643n. JUDICIAL SALE, admissibility in evidence of deed to show title, p. 863n. conclusiveness of recitals in sheriff's deed, p. 757n. judicial notice of abbreviations in, p. 35n. oral evidence to explain ambiguity in deed, p. 802n. proof of ovfnership by one purchasing at, p. 778. recitals in decree, p. 756n. JURY, inspection by, see Inspection. judicial notice by, p. 64,'). questions for, see Trial. right of jury to compare handwritings, p. 538. talcing exhibits to jury room, p. 539. tampering with juror, pp. 237, 838. view by, p. 353. JUSTICE OF THE PEACE, judicial notice of meaning of letters "J.P.," pp. 35n, 37n. parol evidence as to meaning of letters "P. & D." in docket entry, p. 37n. presumption of due appointment of, p. 755n. KNOWLEDGE, circumstantial evidence, p. 649. direct testimony, pp. 647, 871. general reputation, p. 655. guilty knowledge, proof of, in prosecution for theft of steer, p. 67. of facts by party making admissions, p. 132. of facts by party ratifying, pp. 809, 810. of financial condition of third person, p. 605. of person making entries in account books as to their correctness, p. 91 of principal, p. 651. of servant, p. 651. possession, p. 650. previous transactions to show, p. 649. probability of knowledge, p. 648. right of jurors to act upon personal knowledge, p. 645. Presum-ptions and burden of proof. of adverse possession, p. 650. of common fact, p. 650. of contents of instrument, presumed from access to, or claim under, p. 653. 960 INDEX. KNOWLEDGE — { continued) . of contents, presumed from signing or receiving, p. 651. of contents of newspaper, p. 654. of corporation or its officers, p. 650. of law, p. 655. foreign law, p. 655. of one dealing with corporation, p. 651. of testator of contents of will, pp. 570, 571. of usage, p. 870. LANDLORD AND TENANT, extinguishment of landlord's easement by act of tenant, p. 16. memorandum of agreement signed by one party only, p. 376n. opinion evidence as to cause of fall of building killing tenant, p. 303a opinion evidence as to cause of lowering of rents, p. 304n. possession of tenant as notice, p. 730. presumption of lessee's knowledge of entries made in his class book by lessor, p. 653n. Lease, acceptance of, p. 60. presumption as to, p. 56. evidence of pecuniary condition of lessees, p. 337. oral evidence to explain description of premises in lease, p. 802n. proof of parol lease changing term, p. 4n. LAPSE OF TIME, presumption of grant from, pp. 500, 501. LAW, intent as to law which shall control contract, p. 614. judicial notice of, p. 637. presumptions and burden of proof as to intent to evade, p. 617. presumption of knowledge of, p. 655. proof of foreign law, see Foreign Law. LEASE, in general, see Landlord and Tenant. of homestead, as proof of abandonment, p. 25n. LEDGER, admissibility in evidence, p. 87. LEFFEL'S TABLES, use of, to show number of horse power obtained from given quantity of water, p. 549. LEGACIES, in general, see Wi'.ls. intent to charge real property with payment of, p. 624. LEGAL HOLIDAYS, judicial notice of, p. 633. INDEX. 961 LEGALITY, oral evidence of, p. 561. LEGISLATURE, judicial notice of entries in legislative journals, p. 637. LETTER-PRESS COPIES, admissibility in evidence, see Best and Secondary Evidence. LETTERS, admissibility in evidence, generally, see Documentary Evidence, admissibility of copies of, in evidence, see Best and Secondary Evi- dence, authorship, p. 658. presumption as to, pp. 659, 660. delivery, p. 660. letter and inclosure let in each other, p. 661. letter from debtor as proof of new promise, p. 720. letters of an agent, p. 661. mailing, 660. presumptive evidence, p. 664. what constitutes mailing, p. 663. matters as to mails generally, see Postoffice. mere possession as rendering competent against possessor, p. 66L offering part of connected correspondence, p. 657. omission to answer as admission of truth of statements, p. 662. receipt, presumption of, pp. 660, 664, 665. undelivered letter as evidence of death, p. 415. LIBEL AND SLANDER, character evidence in action for, pp. 319, 320n, 321n. specific instances to show character, pp. 322n, 323ii. charging unchastity, p. 801n. condition in life, p. 335. declarations, pp. 668n, 702n. financial standing of defendant, p. 340n. identity, p. 556n. inspection of plaintiff on issue of pregnancy, p. SOln. knowledge of, by one selling paper containing, p. 654. truth of charges, burden of proving, p. 716n. Intent; malice. declarations, on question of motive, p. 702n. direct testimony as to, pp. 610, 667. presumptions and burden of proof as to malice, p. 669. proof of repetition of charge on question of malice, p. 668. relevancy of evidence on question of malice, p. 671. testimony in action against corporation of officers as to intent, p. 613. Abb. Eacjts — 61. 962 INDEX. LICENSE, payment of license fee as evidence of possession, p. 797. LIENS, mode of proving filing, p. 475n. LIFE INSUEANCE, see Insurance. LIFE TABLES, see Mortality Tables. LIFE TENANTS, extinguishment of easement as against remainderman by act of life- tenant, p. 17. LIGHT, abandonment of easement of, p. 9. distance at which light can be seen on water, p. 857. LIMITATION OF ACTIONS, absence from state, p. 48. effect of fact that account is barred by limitations on admissibility of account books in evidence, p. 82. fraudulent concealment of cause of action, p. 333. new promise, burden of proving, p. 720. proof by letter from debtor, p. 720. presumption that one making new promise knew facts establish, his exemption for liability, p. 720. LIMITATION OF INDEBTEDNESS, presumption that limitation lias not been exceeded, p. 550. LIS PENDENS, as notice, p. 750. LIVERY, evidence of reputation of horse in action against liveryman for injury, p. 320n. LIVE STOCK, in general, see Animals. injury to, by railroad train, pp. 284n, 347, 394n. presumption and burden of proof in case of injury to, while in carrier's custody, p. 290n. LOAN, in reliance on statement of third person as to borrower's financial condition, p. 562n. LOBBY SERVICES, oral evidence that contract was in consideration of, p. 561n. LOGGING RAILROAD, opinion as to proper manner of constructing trestle, p. 268n. INDEX. 963 LOGS AND LOGGING, admissibility in evidence of scale book or tally, pp. 683, 684. log marks as evidence of ownership, p. 776. proof of quantity of logs cut or sold, pp. 683, 684. LOST ARTICLE, proof of value of, p. 873. LOST DOCUMENTS, admissibility in evidence of abstract made from, p. 49. LOST RECORD, mode of proving, p. 663. LUMP CHARGES, effect of, on admissibility of account, p. 89. LUNACY, see Insanity. M MACHINE, evidence as to capacity of, p. 262. opinion as to dangerous character of, p. 268n. as to proper construction of, p. 368. as to possibility of discovering defect in, p. 271n. MAGNIFYING GLASS, use of, to determine genuineness of handwriting, p. 542. MAILS, see Postoffice. MALICE, . direct testimony, p. 667. indicative conduct and declarations, p. 667. motive as affecting cause of action, pp. 703, 704. relevancy of evidence generally, pp. 668n, 671. Presumptions and 'burden of proof. in action for malicious prosecution, p. 670. in libel or slander case, p. 669. MALICIOUS PROSECUTION, malice, presumption and burden of proof as to, p. 670. relevancy of evidence on question of, pp. 668n, 671. motive of defendant, pp. 704n, 705n. probable cause, pp. 705, 706n. testimony of defendant as to his intent, p. 610. MALPRACTICE, burden of proof in action for, p. 279n. MANDAMUS, necessity of proof that party can perform duty required, p. 872. MAPS, admissibility in evidence, pp. 248, 354, 355, 789. 964 INDEX. MARGIN, direct testimony as to intent in purchasing commodities on, p. 617. MARK, absence of attesting witness, p. 675. attestation after death, p. 675. burden of proof, p. 674. competency of witness to genuineness, p. 673. direct testimony as to genuineness, p. 673. handwriting generally, see Handwriting. intelligence of execution, p. 675. interpreting unintelligible marks in account books, p. 99. opinion evidence as to genuineness, p. 673. understanding of writing, p. 675. MARKETABLE TITLE, opinion as to, p. 866. MARRIAGE, admissions and declarations, p. 677. declarations of one since deceased against his own marriage, p. 143. certificates, p. 676. cohabitation and repute, p. 678. deceiving woman into void marriage, p. 340n. direct testimony, p. 676. eye-witnesses, p. 676. intent, to evade law, p. 617. mental capacity of party contracting, p. 572. oral proof that marriage was consideration for deed, p. 358. presumptions and burden of proof, p. 678. intent to evade law, p. 517. presumptions flowing from marriage ceremony, p. 679. Annulment. for mental incapacity of party, p. 572. on ground of impotence, physical examination, p. 343. MARRIAGE CERTIFICATE, statement in, as evidence of age of party, p. 159. MASTER AND SERVANT, appearance of being in service, p. 457. assent to contents of statement of account between employer and em- ployee, p. 228n. assumption of risk, reliance upon promise to repair, p. 611. capacity of minor servant to comprehend and avoid danger, p. 264. character evidence in action by servant for discharge, p. 318n. competency of servant, opinion evidence as to, p. 324n. proof of intoxication on question of, p. 325. condition of ladder from which employee fell, p. 346n. INDEX. 965 MASTER AND SERVANT— {continued). contributory negligence, pp. 270, 651. demand on servant in possession, p. 430. employee's knowledge of entries in employer's book, p. 654ii. of latent danger, p. 651. of rules, p. 653n. evidence for purpose of corroboration in action for visages, p. 392n. fellovr servants, burden of proving lack of care in selection of, p. 280n. judicial notice as to proper means of protecting operators of street cars, p. 634. opinion as to condition of railroad track, p. 347. as to danger of brakeman's position on car, p. 270. as to necessity of safety switch, p. 715n. as to what might have been done to rescue imprisoned miners, p. 271. other similar transactions in action on contract of hiring, p. 374n. presumption of employment, p. 457. presumption of negligence from injury to servant, pp. 284n, 286n. scope of servant's duty, p. 437. MATEEIALITY, of alterations in instrument, p. 201. MATHEMATICS, judicial notice of laws of, p. 633. MEASURES, best and secondary evidence, p. 683. burden of proving ignorance of usage, p. 683. comparison of measures, p. 683. declarations, p. 686. documentary evidence, p. 684. foundation for evidence of, p. 686. measurements of accused person, p. 684. measurer proving own measure, p. 683. of switch, p. 686. opinions and conclusions, p. 685. parol evidence, p. 685. relevancy, p. 686. usage, p. 683. of logs, p. 683. MECHANICS' LIENS, proof of filing of, p. 475n. MEDICAL EXPERTS, opinions of, see Insanity; Opinions and Conclusions. MEETING, presumption that meeting was regularly called, p. 754. 966 INDEX. MEMBERSHIP, best and secondary evidence, p. 690. judicial notice, p. 688. parol evidence, p. 691. presumptions and burden of proof, p. 689, attendance at meeting, p. 690. office holding, p. 690. record of, p. 687. MEMORANDA, admissibility in evidence for purpose of corroboration, p. 395. as evidence of date, p. 403. unsigned memorandum as evidence of terms of contract, pp. 375n, 376n. use of, to refresh memory of witness, p. 484. MENTAL CONDITION, in general, see Feelings; Insanity. of person making dying declarations, p. 443. MERCANTILE ABBREVIATIONS, see Abbreviations. MERCANTILE AGENCIES, judicial notice of nature and functions of, p. 259. MERGER, declarations and acts, p. 692. extrinsic evidence, p. 692. presumptions and burden of proof, p. 691. MESSAGE, ansvper competent, p. 693. effect of oral message, p. 693. how answer proved, p. 693. MEXICO, judicial notice of laws of, p. 639n. MILK, evidence as to adulteration, p. 805n. MILLS, abandonment of water rights by nonuser, p. 22. horse power of, see Horse power. MINES, abandonment of rights by lessee, p. 32. abandonment of rights in dam and ditch for mining purposes, p. 17. direct testimony as to condition of instrumentality, p. 34Cn. opinion as to competency of superintendent, p. 324n. as to proper method of timbering drift, p. 267n. as to what might have been done to rescue imprisoned miners, p. 271. INDEX. 967 MINES — {continued) . pleading in ejectment to recover mining claim, p. 32. presumption of negligence from injury to employee, p. 286n. MISNOMER, as to name generally, see Name, in contract or deed, p. 694. in judicial proceedings, p. 694. MISTAKE, as an excuse, p. 696. as ground for admission of oral evidence to vary receipt, p. 786. burden of proof, p. 696. cogency of proof, p. 697. in certified copy, p. 695. in record of instrument, p. 750. oral evidence, p. 696. to correct misdescription in will, pp. 621, 622. recount to show mistake in count, p. 807. MISTRESS, gift to, presumption as to validity, p. 492. MOBS, evidence as to character of deceased in action for killing by, p. 322ii. MONEY, proof of genuineness of bank notes, p. 489. value of foreign coin, p. 878. MONOPOLY, presumption of intent to create, p. 618. MONTH, judicial notice of meaning of term, p. 633. MONUMENTS, parol evidence to identify, p. 251. MOON, use of almanac to show time of rising or setting, p. 697. MORTALITY TABLES, admissibility generally, p. 698. authentication, p. 699. conolusivenes, p. 699. judicial notice as to, p. 633. secondary evidence of contents, p. 699. MORTGAGE, acts of mortgagor as extinguishing easement as against mortgagee, p. 17. authority of agent to receive payment of, p. 189. 968 INDEX. MORTaAGE — ( continued) . burden of proving acceptance of deed by which mortgage is assumed, p. S3. competency of mortgagor, p. 567. consent of mortgagee to dedications of streets and alleys, p. 357n. delivery of, generally, see Delivery. good faith of mortgagee in refusing to accept tender, p. 495n. intent that mortgage should merge in fee, presumption, p. 691. parol evidence as to acknowledgment of, p. 118. as to rights of second mortgagee, p. 620n. of collateral agreement of assignee of, p. 332. payment, presumption of from lapse of time, p. 785. authority of agent to receive, p. 189. possession of real property as notice, p. 723 et seq. ratification of extension by agent, p. 809n. recitals in, as evidence of abandonment of homestead, p. 26n. record of, as notice, p. 750n. secondary evidence of, p. 778. Deed as mortgage. admissibility under general denial of evidence to establish defeasance, p. 421. admissions and declarations as to whether deed was intended as a mortgage, p. 420. burden of proving that deed absolute on its face was intended as a mortgage, p. 416. direct evidence as to whether deed was intended as a mortgage, p. 419. documentary evidence on question whether deed was intended as mort- gage, p. 420. oral evidence that deed was mortgage, pp. 360, 417. presumption that deed absolute in form was not a, mortgage, p. 416. sufficiency of evidence to show that deed was intended as, p. 421. MOTIVE AND PURPOSE, see also Intent. admissibility of evidence as to, p. 391. effect of, on validity of assignment, p. 235. declarations to show, p. 702. direct testimony, p. 700. motive as affecting cause of action, p. 703. motive in suing, p. 704. relevant facts, p. 704. MOURNING, evidence of wearing of, to show death, p. 408. MUNICIPAL CORPORATIONS, judicial notice of local custom in municipal affairs, p. 637ii. INDEX. 969 MUNICIPAL CORPORATIONS— (conMwed). of ordinance, p. 637. of population of, p. 634. presumption of acceptance by, of redemption of property made for its benefit, p. 56n. presumption tiiat limitation of indebtedness has not been exceeded, p. 550. MURDER, see Homicide. MUTILATION, admissibility in evidence of mutilated book of accounts, p. 84. MUTUAL ACCOUNTS, See Accounts. N NAME AND DESIGNATION, see also Misnomer. answering to, as evidence of identity, p. 555. difference of name as disproving identity, p. 560. identity of name as raising presumption of identity of person, p. 557. forgotten name, p. 707. hearsay, p. 707. interrogating to discover names of witnesses, p. 707. judicial notice, p. 706. omitting from testimony or document, p. 707. parol evidence to explain ambiguity arising from, p. 708. trade designation, p. 708. NAPHTHA, negligence in shipping, p. 276n. NATIONALITY, as to naturalization, see Naturalization, judicial notice as to, p. 709. of person, p. 709. of vessel, p. 709. NATURALIZATION, best and secondary evidence, p. 710. certified copy of record of other state, p. 711. presumptions and burden of proof, p. 710. record conclusive, p. 711. NAVIGABILITY, government survey to show, p. 712. judicial notice as to, pp. 642, 711. presumptions and burden of proof, p. 712. NECESSARIES AND NECESSITY, burden of proof, p. 713. 970 INDEX, NECESSARIES AND 'NECESSITY— {continued)'. judicial notice, p. 713. necessity of an administrator) p. 715. opinion, p. 714. presumptions, p. 714. NEGATIVE, burden of proof, p. 716. custom of officer to disprove alleged official account, p. 718. lack of entry in account, p. 717. lack of entry in public record, p. 717. nonobservation of witness, p. 718. official act, p. 718. presumption of innocence, p. 716. NEGLIGENCE, see also Accident; Cares; Personal Injuries. as to turntables, p. 276n. character evidence in action for, p. 319. compulsory physical examination, pp. 342, 343. condition in life, p. 334. conditions at other time or place, p. 348. contributory negligence, pp. 293, 299. declarations of pain or suffering in action for personal injury, p. 469. effects of injury, pp. 452, et seq. exhibition of person to jury in action for injury, p. 341. feelings of injured persons, see Feelings. inspection in court of articles causing injury, p. 352. natural manifestations of suffering by injured person, p. 469. opinion as to possibility of stopping team in time to avert accident, p. 269n. sufficiency of pleading to permit proof of gross negligence, p. 278. variance between pleading and proof, p. 277. NEW PROMISE, burden of proof, p. 720. letter in reply to demand of payment, p. 720. presumption of knowledge of facts, p. 720. NEWSPAPERS, newspaper statement as evidence, p. 721. offering in evidence one copy of issue, p. 804. presumption of knowledge of contents of, p. 654. presumption that two newspapers were printed by same person, p. R04. NITROGLYCERIN, presumption of negligence causing explosion, p. 283n. NOMINAL CONSIDERATION, effect of recital of, p. 359. INDBZ. 971 NOMINATION, evidence of filing certificate of, p. 475n. NONOCCUPANCY, presumption of abandonment of property from, pp. 2.4n, 31. NONRESIDENCE, see Residence. NONUSER, abandonment of easement by, p. 8. easement of way, p. 12. highway by, pp. 9, 10. railroad right of way, p. 11. loss of water rights by, p. 17. NOTARIES PUBLIC, judicial notice of meaning of letters "L.S.," p. 35n. of meaning of letters "N.P.," p. 35n. of seal of, p. 824. opinion of notary taking acknowledgment as to grantor's sanity, p. 596. presumption of authority to administer oath, p. 751. NOTICE, anonymous letter as, p. 722. authentication, p. 750. information from stranger as, p. 722. lis pendens as, p. 750. of revocation of agency, p. 193. reason for disregarding notice by one charged with bad faith, p. 499. record and index as, p. 750. to charge with fraud, p. 739. Notice to agent. in general, p. 740. agent with conflicting duties, p. 749. knowledge not acquired in principal's business, p. 741. notice to officers of corporation, p. 747. notice to subagent, p. 729. where agent is personally interested or is perpetrating a fraud, p. 744. Possession as notice. general rules as to effect of possession, p. 723. application of rules to easements, p. 738. effect of statutes requiring actual notice as an equivalent of registra- tion, p. 725. estoppel of possessor to assert claim, p. 738. family relations generally as affecting possession, p. 737. grantor's possession after conveyance, p. 733. -mortgagee or lienor in possession, p. 734. 972 INDEX. NOTICE — ( continued) . of what possession is notice, p. 727. possession by cestui que trust, p. 734. possession by cotenants, p. 735. possession by husband and wife, p. 735. possession by tenant, p. 730. possession by vendee under unrecorded deed, p. 732. possession under contract of purchase, p. 731. requisites and sufficiency of possession, p. 728. rules as to scope of the inquiry, p. 726. NUISANCE, evidence of other cases of sickness caused by, p. 311n. O OATH, of officer, p. 751. of witness whose testimony is offered in subsequent proceedings, p. 850. presumption of authority to administer, p. 751. to document or instrument, p. 751. OBJECTION, proof of waiver of, p. 881. OBSTRUCTION, of highway, as evidence of abandonment, p. 10. of way, as evidence of loss or abandonment, p. 15. OFFERS, to buy or sell as evidence of value, p. 875. OFFICERS, admissibility against, of reports of subordinates, p. 755. admissibility of official records or registers in evidence, p. 758. customs of, p. 718. declarations of members of public board as proof of official acts, p. 757. judicial notice of official acts, see Judicial Notice. oath of office, p. 751. presumption of absence of, at certain time, p. 46. of performance of duty by, p. 753. that meeting was regularly called, p. 754. that person acting in official capacity was duly appointed, p. 755. recitals in official instrument as evidence of official character, p. 756. seals of, see Seals. OIL, presumption of intent to create monopoly, p. 618. OPERATION, evidence as to effects of, pp. 452, et seq. OPINIONS AND CONCLUSIONS, see also Direct Testimony. INDEX. 973 OPINIONS AND CONCLUSIONS— (cojitmited). as to abandonment of contract, p. 3. as to ability. acts which person is able or unable to do, p. 39. degree of physical and mental ability, p. 40. questioning witness as to his own ability, p. 42. testimony of one injured that he was unable to work because of injury as a conclusion, p. 42. as to acceptance of contract, p. 372. as to acceptance of goods delivered, p. 59. as to accuracy of party keeping accounts, p. 101. as to adverse nature of possession, p. 155. as to age, pp. 162, 164, 165. age of document, p. 165. as to alterations in instrument, p. 206. as to assent, p. 230. as to bloodstains, p. 244. as to boundary, p. 252. as to breed, p. 258. as to capacity of machine or structure, p. 262. as to care or prudence, pp. 266, 268, 272. care in making measurement, p. 685. what might have been done, pp. 271, 799. whether injury might have been avoided, p. 272. whether, if witness had been driving, accident would have hap- pened, p. 66. as to cause of casualty, pp. 302, 310. of defect in machine or structure, p. 302. of disease, p. S47, of suicide, p. 308. as to competency and skill, p. 323. as to condition of places and things, p. 345. as to construction of structure, p. 366. as to cubic contents of bank of earth, p. 685. as to credit, to which of two persons given, p. 399. as to delivery of instrument or property, p. 422. as to distance at which object is visible, p. 856. within which sparks from engine will set fire, p. 859. within which train may be stopped, p. 857. as to feelings, p. 467. as to feigning pain, p. 471. as to financial condition, p. 603. as to genuineness of expressions of pain, p. 471. as to genuineness of mark, p. 673. as to good faith, p. 495. as to habits, p. 630. as to handwriting, see Handwriting. 974 INDEX. OPINIONS AND CONCLUSIONS— (cojitMiMed). as to health and disease, pp. 545, 546. as to hearing of sounds, p. 548. as to identity of person or thing, pp. 239n, 552. identifying from voice, p. 553. uncertainty, p. 553. as to insanity, pp. 578, et seq. as to intent generally, see Intent. intent to make gift, p. 491. to abandon homestead, p. 23. to remove from state, p. 47. whether instrument intended to be deed or mortgage, p. 419. as to intoxicating character of drink, p. 238n. as to intoxication, p. 630. as to knowledge, p. 648. as to malice, p. 667. as to measurement necessary to be made under contract, p. 685. as to mental incapacity, pp. 578, et seq. as to motive or purpose, p. 700. as to necessaries, p. 714. as to necessity of jettison, p. 714. of safety switch on railroad, p. 71Sn. of straightening road, p. 73 5n. as to number of acres in a fractional quarter section, p. 685. as to number of cubic feet in a wall, p. 685. as to performance of agreement, p. 787. as to performance of duty, p. 438. as to position of object or person, p. 795. as to possession of lands or chattels, p. 596. as to pregnancy, p. 801. as to quality, p. 804. as to quantity, pp. 685, 807. as to results of autopsy, p. 236. as to sanity, pp. 578, et seq. as to scope of agent's powers, p. 178. as to scope of duty, p. 437. as to scope of particular trade, p. 260. as to speed, p. 830. as to temperate or intemperate habits, p. 630. as to time necessary for specified work, p. 859. to cover specified distance, p. 859. to stop train, p. 857. to get off train, p. 8^S. as to time spent, p. 856. as to time when entries in account book were made, p. 99. as to usage or custom, p. 869. as to value of coin, p. 878. IJSDEX. 975 OPINIONS AND CONCLUSIONS— (contmuet?). as to value of property or services, pp. 876, 878. as to vrhat is necessary under contract, p. 714. as to what parties agreed to, p. 373. as to what would have been or happened under certain circumstances, p. 309. as to whether act of another was accidental or done on purpose, p. 66. as to whether blood was human or animal, p. 244. as to whether person may have heard conversation, p. 548. as to whether treatment was kindly, p. 866. comparison of weather with usual weather of certain season, p. 882. critical opinion of other testimony incompetent, p. 766. distinction between opinion and observation with judgment, p. 759. explaining ambiguity arising from insufficient description or from change of name, p. 708. explanation by expert of entries in account books, p. 100. impugning expert's examination, on which opinion is based, p. 767. on what questions expert testimony competent generally, p. 762. party as expert, p. 761. qualification of expert generally, p. 761. qualifying statement of fact by words "I would judge," "I think," p. 239. understanding of witness as to meaning of signs, p. 829. weight and conclusiveness of expert's opinion, p. 768. Examination and cross-examination of witness. basis of facts assumed in question, pp. 764, 765. cross-examination, p. 767. doubt, questioning as to, p. 767. form of question to witness, pp. 270, 307. questions preliminary to opinion, p. 760. reason for opinion, calling for an examination in chief, p. 767. reducing hypothetical question to writing, p. 766. ORDER OF COXJRT, best and secondary evidence, p. 771. conclusiveness of recitals in, p. 771. copy as proof of, p. 770. date and term, presumption as to, p. 772. entry for purpose of proving, p. 772. ground of, presumption as to, p. 773. impeaching, p. 773. informal order, p. 771. jurisdictional facts, recital of, p. 771. order in special proceeding, admissibility, p. 770.' substituting third person in place of original party, p. 821. what is a court order, p. 772. OWNERSHIP, see also Title. 976 INDEX. OWNERSHIP— (contmsiBd) . continuance, presumption of, p. 779. direct testimony, p. 774. entries in account, p. 778. Iiearsay, p. 776. marks, signs, brands, etc., p. 776. possession, pp. 774, 862. of written instrument, p. 775. presumption of, pp. 774, 778, 862. of continuance of, p. 779. source of ownership, p. 778. producing document, p. 778. PARENT AND CHILD, authority of son to sign father's name to note, p. ISln. child as agent of parent, pp. 181n, 183. domicil of minor child, presumption as to, p. 435. gift from parent to child, presumption as to validity, p. 492. inspection of child on isuse of paternity, p. 780. residence of children with parent as notice of their rights in the property, p. 737. use of photograph of putative father on issue of paternity, p. 790. PARKS, acceptance of land dedicated for, p. 62. PAEOL AND EXTRINSIC EVIDENCB, as to abandonment of contract, p. 3. as to acknowledgment, p. 117. as to award, pp. 224, 225. as to assignment of debt, p. 232. as to boundary, p. 251. as to collateral agreement, p. 329. as to application of payment, p. 221. to vary written acceptance, p. 58. as to consideration, pp. 360, 363, 364. as to date of execution of instrument, p. 406. as to date of presentation of instrument for record, p. 475il. as to delivery of deed, p. 425. as to demand, p. 430. as to filing of chattel mortgage, p. 475n. as to false or fraudulent representations, p. 562. as to foreign law, p. 479. as to identity of person, land, or document, pp. 217, 558, 621, 622. as to legality or illegality, p. 561. as to length in which wood purchased was to be cut, p. 685. as to marketableness of title, p. 866. as to mistake, p. 696. as to mode of measuring logs, p. 685. INDEX. 977 PAROL AND EXTRINSIC EVIDENCE— (comriraMed). as to rate of interest, p. 628. as to result of exammation of voluminous books, records, etc., p. 219, as to suretyship, p. 834. as to taking of oath of office, p. 751. time of taking, p. 752. as to usage, pp. 59, 214, 867, 868, 870. as to waiver, p. 879. conversation vpith bearer of written demand, p. 430. of admission of execution of writing, p. 126. of admission of having performed act for validity of which statute prescribes writing, p. 126. of dying declarations, p. 447. supplying words in instrument lost by mutilation, p. 208. that logs were to be scaled by sealer assigned by one of the parties, p. 685. to contradict minutes of society as to suspension of member, p. 691. to contradict, vary or explain receipt, p. 786. to correct misnomer, p. 694. to supply defects in title, p. 864. to show immateriality of alteration in instrument, pp. 207, 208. to show official approval of instrument required by statute, p. 222. to show ratification by corporation of contract made by officers, p. 192. to show taking of necessary oath to document, p. 751. to show that acceptance of a draft was refused, p. 59. to show that acceptance of bill of exchange was stipulated not to waive counterclaims, p. 59. to show who were members of partnership at certain time, p. 691. to vary copy of instrument offered in evidence, p. 388. to vary written receipt that property was received in satisfaction of claim, p. 68. Condition. condition attached to acceptance absolute on its face, p. 58. condition attached to delivery of deed absolute on its face, p. 428. condition attached to delivery of unsealed instrument, pp. 426, 427. to show that signer of obligation signed on condition that others should also sign, p. 231. Mewmng; intention; explanation. creating ambiguity by extrinsic evidence, p. 216. abbreviations, pp. 36n, 38n. blank, filling, p. 211. illegible word or character, p. 211. identity of document, p. 217. of land described, pp. 217, 621, 622, 802. of person, pp. 217, 621. of property assigned, p. 234. insurance contracts, p. 218. Abb. Facts — 62. 978 INDEX. PAROL AND EXTRINSIC EVIDENCE— (con-ttreued). intent to vary or interpret written instrument, pp. 609, 618. intent and meaning of entries in account books, p. 99. as to merger of contract or title, p. 692. of testator, pp. 621 et seq. to show that deed absolute in form was intended as a mortgage, p. 417. to show that written assignment was made as collateral security, p. 236. to show that writing on draft was intended as acceptance, p. 59. to show what assets were intended to pass by assignment or bill of sale, p. 235. latent ambiguity, p. 212. patent ambiguity, p. 212. practical construction, p. 215. signature, explaining, p. 828. surrounding circumstances, p. 213. symbols, p. 210. technical meaning of word, p. 215. usage, pp. 214, 868. wills, pp. 621, 622. PARTIES, order of substitution as prima facie evidence of death, p. 414. PARTITION, burden of proving alienage of interested persons, p. 710. PARTNERSHIP, entries in books of firm as evidence against or in favor of member, p. 105. entries in partnership books by absent or deceased partner, p. 78. effect of county clerk's failure to record partnership certificate left for record, p. 750. presumption of partner's knowledge of entries in books, p. 654n. proof against one person of declarations by another to show partner- ship, p. 141. PASS BOOKS, admissibility in evidence, p. 103. PASSPORT, admissibility in evidence on question of citizenship, p. 327. PATENTS AND TRADEMARKS, Ahandonment. burden of proof, p. 30. declarations, p. 30. delay, p. 30. presumptions, p. 29. INDEX. 979 PATERNITy, inspection of child on issue, p. 780. photograph of putative father on issue of, p. 790. PAYMENT, acceptance of promissory note as, p. 53. application of, see Application of Payments, as raising presumption of surrender of obligation, p. 836. authority of agent to receive, pp. 188, 189. burden of proof, p. 783. entry in bank books, p. 783. oral evidence to vary receipt, p. 786. receipts, p. 782. Presumption. from lapse of time, p. 784. from possession of instrument, p. 784. PECUNIARY CONDITION, see Insolvency, Solvency, and Financial Condition. PERJURY, evidence as to character in action for attempted subornation of witnesses, p. 319. party's attempt to suborn false testimony as admission that he has bad case, p. 237. PERSONAL INJURIES, see also Accident; Negligence. cause of, generally, see Cause. character evidence in action for, p. 319. compulsory physical examination, pp. 342, 343. condition in life, number of children, etc., p. 334. conditions at other time or place, p. 348. contributory negligence of injured person, pp. 42, 66. declarations of pain or suffering, pp. 469 et seq. earning capacity of plaintiff or deceased, pp. 336, 337. effects of, pp. 452 et seq. exhibition of person to jury, p. 341. experiments in court in action for, p. 41. feelings, see Feelings. financial condition of plaintiff or defendant, p. 336. habits of plaintiff, p. 503n. inability to work after accident, p. 42. inspection in court of article causing, p. 352. natural manifestations of suffering, p. 469. opinion evidence as to cause of, pp. 303n, 304n, 305, 310. as to contributory negligence, p. 66. as to position of person at time of injury, p. 795n. other injuries, p. 311. 980 INDEX. PERSONAL INJURIES— ( continued ) . photographs, p. 790. speed of train or vehicle, see Speed, statements made in presence of injured party, p. 147. verdict of coroner's jury, p. 66. PERSONAL PROPERTY, intent to abandon presumption of, p. 31. ownership, see Ownership, possession of, see Possession, value of, see Value. PETITION, presumption and burden of proof as to genuineness of, p. 490. PHONOGRAPHS, operation of, before jury, p. 787. PHOTOGRAPHS, admissibility generally, p. 789. as substitute for original writing in comparison of handwriting, p. 530. copy of photograph, p. 790. correctness, p. 792. effect and conclusiveness, p. 793. judicial notice, p. 788. of accounts and papers, p. 98. of documents or instruments, pp. 388, 791. of persons generally, p. 790. of places or things, p. 354. on question of identity, p. 554. on question of testamentary capacity, p. 600. photographs as secondary evidence, p. 793. to show physical condition, p. 341. use of photographic copies of disputed writings for purpose of com- parison, p. 539. x-ray photographs, p. 794. PHYSICAL APPEARANCE, as proof of infancy, p. 564. PHYSICAL CHARACTERISTICS, proof of, on question of identity, p. 555n. PHYSICAL CONDITION, evidence as to feelings, see Feelings. direct testimony, p. 341. inspection, pp. 341, 345. of person making dying declarations, p. 443. photographs, p. 341. PHYSICAL EXAMINATION, compulsory exhibition or examination of person, pp. 342, 343. INDEX. 981 PHYSICAL EXAMINATION— ( continued ) . of child on issue of pregnancy, p. 780. on issue of pregnancy, p. 801. PHYSICIANS AND SURGEONS, admissibility of account books in evidence, p. 96. burden of proof in action for malpractice, p. 279n. declarations by injured person to physician examining him, p. 137. experiment in court in action for malpractice, p. 41n. opinion of, as to sanity, see Insanity. presumption of consent to operation, p. 357n. privileged communications to, p. 579. testimony of, as to manifestations of pain by injured person, see Feelings, testimony of, as to effect of injury or operation, pp. 452 et seq. PIERS, evidence as to condition at other time, p. 349n. presumption as to condition of, years before accident, p. 349n. PILOT, opinion as to negligence in towing, p. 267n. PLACE, direct testimony as to place or position of object, p. 795. evidence as to condition of, pp. 345 et seq. inferring from proximity, p. 795. of tender, p. 845. PLAN, admissibility in evidence, pp. 355, 789. PLATS, admissibility in evidence generally, pp. 354, 789, admissibility on question of boundaries, p. 248. presumption of acceptance of highvifay from proof of execution of plat, p.' 57. unrecorded plat as evidence of abandonment of homestead, p. 26n. PLEADING, amending pleading to meet proof, p. 836. evidence admissible under, see Evidence. necessity of alleging order of court substituting party, p. 821. presumption that complaint vi'as filed prior to entry of judgment, p. 475n. variance betvceen pleading and proof, see Evidence. Denials. explanation of, p. 465. form of, p. 431. general denial, pp. 421, 431. specific denial, p. 433. 982 INDEX. PLEDGE AND COLLATERAL SECURITY, assignment of principal obligation as implying assignment of col- lateral, or vice versa, p. 234. parol evidence to show that written assignment was intended as, p. 236. presumption of abandonment of collateral security by pledgeor, p. 32n. POLICE, acquiescence by police captain in removal from office, p. 121. POLITICAL MATTERS, judicial notice as to, p. 642. POLITICAL PARTIES, burden of proving that election officer is not member of, p. 689. judicial notice of custom and usages of, p. 642. POPULATION, judicial notice as to, p. 634. POSITION, direct testimony as to position of object, p. 795. opinion as to position of body when blow was struck, p. 308. POSITIVENESS, of testimony of witness to handwriting, p. 515. POSSESSION, as evidence of ownership, p. 774. as notice of right or title, pp. 723 et seq. continuance, presumption of, p. 798. direct testimony as to, p. 796. judgment as to, competency against third person, p. 797. payment of license fee or tax as evidence of, p. 797. surrender of, p. 836. Presumptions. of continuance of possession, p. 798. of good faith of transfer to possessor, p. 499. of grant from possession, pp. 500, 501. of payment from possession of instrument, p. 784. of possession from evidence of title, p. 796. of title from possession, pp. 500, 501, 862. POSSIBILITY, see also Care; Cause. evidence as to what might have been done, p. 797. POSTAL MONEY ORDER, procured in fictitious name, p. 474n. POSTMARK, conclusiveness of date on, p. 407n. INDEX. 983 POSTOFFICE, as to mailing and receipt of letters and their admissibility in evidence, see Letters, best evidence as to date of establishment of office, p. 666. judicial notice of time taken by mails between principal cities, p. 663. postal money order procured* in fictitious name, p. 474n. proof of handwriting on trial for depositing scurrilous postal cards in the mail, p. 543. POWER, as to horse power, see Horse Power. POWER OF ATTORNEY, executed by married woman, admissibility in evidence, p. 116. PRECAUTIONS, evidence of, pp. 275, 276. PREGNANCY, inspection, p. 801. judicial notice as to possibility of, p. 800. opinion, p. 801. presumption as to incapacity, p. 801. PREMATURE BIRTH, see Birth. PRESENCE, constructive presence of accused, p. 803. presumption of, p. 803. PRESIDENT, judicial notice of proclamations and messages by, p. 753iu PRESUMPTIONS, accounting, p. 112. account, rendering of, p. 103. time of entry in, p. d9. acknowledgment as presumptive evidence that instrument was duly executed, p. 134. abandonment of rights, p. 31. of homestead, pp. 22, 23. of invention, pp. 29, 30. of mill privilege, p. 22. of mining rights, p. 32. of patent or trademark, p. 29. of water rights and easements of drainage, p. 17. absence of person, p. 46. acceptance of beneficial instrument or grant, pp. 54, 58. of bill of exchange, p. 57. of gift, p. 494. of goods for transportation by carrier, p. 57. 984 INDEX. PRESUMPTIONS— ( continued ) . of highways, p. 57. of land patent, p. 62. accident, pp. 64, 65. accord and satisfaction, pp. 67, 68. acquiescence in account stated, pp. 107, 108. adultery, p. 150. adverse possession, p. 153. age, p. 159. agency, pp. 175, 176, 184, 185. alteration of instrument, p. 196. approval of instrument by person or corporation, p. 223t assent to contents of instrument, pp. 227, 229, 230. authority of agent of insured to abandon policy, p. 28. of authority to administer oath, p. 751. award, p. 223. bias of witness, p. 240. boundaries, p. 247. burden of proof, see Burden of Proof, cause of death, p. 65. change of domieil, p. 4. child's capacity to appreciate danger, p. 264. citizenship, p. 326. compromise, p. 333. consent, pp. 227, 230, 356. consideration, pp. 358, 363. continuance of absence from state, p. 45. of agency, p. 185. of defective condition, p. 313. of domieil, pp. 4, 435. of habit, p. 504. of insanity, p. 574. of life, pp. 409, 412. of lucid interval, p. 577. of membership, p. 689. of ownership, p. 779. of possession, p. 797. of relation of employer and employee, p. i6(K. of residence, p. 820. contributory negligence, p. 299. correctness of declarations of age, p. 159. credit, p. 398. date of delivery of instrument, p. 428. of instrument or document, p. 406. of term of order of court, p. 772. death, pp. 409, 414. cause of, p. 65. INDEX. 985. PRESUMPTIONS— ( continued ) . delivery of instrument, p. 423. of telegram, p. 841. of written contract or deed, p. 371. domicil, pp. 4, 435. effect of presumption that^ defective condition continued to let voi evidence of other subsequent injuries, p. 313. employment, p. 457. foreign law, p. 477. fraud, pp. 372n, 490. from absence of evidence that person did or did not die childless,- p. 243. genuineness of acknowledged instrument, p. 490. genuineness of writing on proof of signature and delivery, p. 202. gift, validity, p. 491. acceptance of, p. 494. good faith, pp. 496 et seq. grant, pp. 153, 500, 501. gratuitous character of services rendered by relative, pp. 458 et seqj ground for order of court, p. 773. identity, from identity of name, p. 557. in favor of award, p. 223. innocence, p. 716. insanity, pp. 566, 574. intent aa to consequences of act, p. 616. of testator, p. 616. that payment shall apply on earlier of several debts, p. 221^ to abandon family, p. 27. to abandon life insurance policy, p. 28. to abandon railway easement, p. 11. to create monopoly, p. 618. to evade law, p. 617. intoxication of testator at time of executing will, p. 632. knowledge of common fact, p. 650. of contents of instrument or contract, pp. 230, 371, 651, 653> of corporation or its officers, p. 650. of facts by person making new promise, p. 720, of law, p. 655. of newspaper contents, p. 654. of one dealing with corporation, p. 651. of one ousted from possession, p. 153. of servant, of danger, p. 651. of usage, p. 870. malice, p. 669. marriage, p. 678. meaning of words in contract, p. 371. membership in association or corporation, p. 689. 986 INDEX. PRESUMPTIONS— ( continued) . ■ merger, p. G91. naturalization, p. 710. navigability of stream, p. 712. necessity for condemning land, p. 714. negligence, p. 278. noneapacity to bear children, p. 801. ownership, pp. 774, 778. payment, p. 784. performance of duty by officer, p. 753. place of occurrence from proximity, p. 795. possession from evidence of title, p. 796. ratification, p. 810. rebuttal of presumpj;ion that party receiving instrument assented to its terms, p. 229. regularity in performance of bank business, p. 815. rendering of account, p. 103. repeal of law from existence of usage, p. 481. residence, p. 818. solvency or insolvency, p. 605. suicide or accident, p. 65. survivorship, p. 837. tax deed as prima facie evidence of regularity of proceedings, p. 116. that complaint was filed prior to entry of judgment, p. 475n. that corporate seal was affixed by proper authority, p. 826. that deed absolute in form is a conveyance and not a mortgage, p. 416. that fugitive has gone out of state to remain, p. 819. that letter properly mailed reached destination, p. 664. that limitation of municipal indebtedness has not been exceeded, p. 550. that meeting of board of officers was regularly called, p. 754. that one in possession held in subordination to title of true owner, p. 32. that parties contracted with reference to law, p. 371. that person acting in official capacity was duly appointed, p. 755. that person enjoys normal condition of mind and body, p. 39. that seal was affixed to instrument, p. 825n. that things in action are worth their face value, p. 877. that two newspapers were printed by same person, p. 804. that wife adopted seal opposite signature of husband, p. 825. time of alteration of instrument, p. 197. time of entries in account books, p. 99. of title from possession, pp. 500, 501, 862. validity of gift, p. 491. vessel at sea belonging to a nation whose law is different from ours, p. 709. what included in compromise, p. 333. PRINCIPAL AND AGENT, see Agency. INDEX. 987 PRINCIPAL AND SURETY, parol evidence as to obligation which sureties intended to assume, p. 620n. of independent agreement between sureties and obligees of bond, p. 330n. that sureties did not intend to deliver bond without principal's signature, p. 620n. PRINTING, of newspaper, see Newspapers. judicial notice of printers' abbreviations, p. 721. PRIOR APPROPRIATION, loss or abandonment of right to, p. 18. PRIVILEGED COMMUNICATIONS, see Confidential Communications. PROBABLE CAUSE, see Malice. PROBATE, of will, see Wills. PROCLAMATIONS, judicial notice of, pp. 638n, 641, 753i». PROPRIETORSHIP, evidence to show, p. 261. PRUDENCE, see Care. PUBLIC GRANT, ])resumption of acceptance of, p. 56. PUBLIC LANDS, acceptance of land patent, p. 62. filing of lease of lands selected by state as indemnity for loss of school lands, p. 475n. judicial notice of orders and regulations of land department, p. 753n. recitals in letter from United States land commissioner as evidence against third person, p. 756n. PURPOSE, see Motive and Purpose. Q QUALITY, comparison; reference to other specimen, p. 806. direct question, p. 804. inspection in court, p. 806. opinion evidence as to quality of work, p. 368. QUANTITY, comparison, p. 808, 988 INDEX. QUANTITY— ( continued ) . direct testimony, p. 807. recount to show mistake in count, p. 807. R RAILROADS, admissibility in evidence of entries in records as to time of passing of train, p. 860. burden of proof as to necessity of removal of track, p. 713. expert testimony as to proper construction of, pp. 366n, 367n, 369n. judicial notice as to business of, pp. 259, 634. as to acceptance by, of provisions of statute, p. 53. that certain railroad runs through given county, p. 642. presumption as to necessity of condemning land for, p. 714. presumptions in action to compel change of track, p. 714. presumption of acceptance of rights under joint resolution of Con- gress, p. 56n. Abwndonment of right of way. inference of intent, p. 11. materiality of evidence, p. 11. mode of proof, p. 11. weight of facts, p. 11. Personal injuries. burden of proof in action for, p. 279n. care in flagging trains, p. 268. cause of derailment, pp. 302n-304n. condition of track at other place, p. 350n. contributory negligence, opinion as to, pp. 267n, 271n. distance at which objects on track could be seen, p. 857. how far rear lights of train can be seen, pp. 857, 858. measurements of switch taken after accident, p. 686. negligence as to turntables, p. 276n. position of person at time of injury, p. 595n. presumption of negligence, p. 283n. from fall of door from moving train, p. 284n. statute making injury prima facie proof of negligence, p. 292. speed of trains or hand cars, p. 830. time or distance within which train can be stopped, p. 857. what engineer might have done, p. 271. Injuries to animals. admissibility of evidence for purpose of corroboration, p. 394n. expert testimony as to condition of fence, p. 347. presumption of negligence from happening of injury, p. 284n. statute making failure to fence prima facie evidence of negligence, p. 292. statute making injury prima facie proof of negligence, p. 292n. Fires. evidence as to distance within which sparks from engine will set fire, p. 859. INDEX. 989 RAILROADS— ( contirmed ) . judicial notice as to necessity of spark arrester, p. 713. opinion as to suiEcienoy of spark arrester, p. 368n. other fires set by defendant's engines, pp. 275, 311n. presumption of negligence from setting of fire, p. 283n. statute making occurrence of fire prima facie evidence of negli- gence, p. 293. Diversion of water. opinion as to proper construction of embankment, p. 367n. opinion as to whetber embankment caused overflow of water, p. 303n. RAPE, opinion evidence as to probability of pregnancy, p. 801n. EATIFICATION, admissibility of evidence of ratification under allegation of authority, p. 808. executory contract, p. 899. express ratification, p. 190. how proved, generally, pp. 190, 809. knowledge of facts, p. 809. knowledge of legal effect of facts, p. 810. parol evidence of ratification of contract under seal, p. 192. presumption of ratification, generally, pp. 190, 810. right of one who dealt with notice of agent's lack of authority to show ratificationj p. 192. silent acquiescence, pp. 190, 810. slight evidence sufficient where agency exists, p. 810. what may be ratified, p. 811. REAL PROPERTY, abandonment of, see Abandonment. abstracts of title, see Abstracts. deeds, see Deeds. devise of, see Wills. direct testimony as to claim in, p. 328. easements in, see Easements. fixtures, see Fixtures. intent of testator to charge with payment of legacies, p. 624. ownership, see Ownership. possession of, see Possession. title, see Title. value of, see Value. REASON, right to prove reason for act, p. 811. REASONABLENESS, as question for jury, p. 812. REBUTTAL, the right, generally, p. 813. 990 INDEX. REBUTTAL — ( continued ) . admissibility of evidence m, under pleadings, p. 814. anticipatory rebuttal, p. 814. cumulative testimony in rebuttal, p. 814. of evidence as to intent, p. 627. of evidence as to identity, p. 560. of presumption of credit, p. 402. of presumption of knowledge of contents of instrument, p. 652n. of presumption of receipt of letter, p. 664. RECEIPT, as proof of payments, p. 782. oral evidence to vary, p. 786. RECEIVERS, consent to appointment of, as abandonment of contract, p. 4n. proof of authority of, to sue, p. 657. RECORDS, abstracts made from destroyed records, p. 50. church record, pp. 243, 408. copy of filed or recorded instrument, p. 383. date of filing, p. 407. explaining alterations in official record, p. 209. extracts from, pp. 50, 52. failure of clerk to record certificate left for that purpose as impairing its effect as notice, p. 750. judicial notice of contents of judicial record, p. 640. mode of proving filing or nonfiling, p. 475. necessity of recording cattle brand to make it evidence of ownership, p. 776. omission of seal from record, p. 826. possession as notice of rights under unrecorded deed, pp. 723 et seq. presumption and burden of proof as to good faith of purchaser claiming under prior unrecorded conveyance or incumbrance, pp. 496, 497. presumption of delivery from fact that deed was recorded, p. 424. proof of age by, p. 159. proof of date by, p. 403. proof of death by, pp. 408, 415. proof of delivery of instrument by, p. 423. proof of lack of entry in, p. 717. proof of seal by, p. 826. record and index as notice, p. 750. records in ordinary course of business, p. 860. record of unacknowledged deed, p. 114. RECOUNT, to show mistake in count, p. 807. INDEX. 991 REFERENCE, right of referee to compare handwriting with standards of comparison, p. 538. use by referee of magnifying glass to determine genuineness of hand- writing, p. 542. REFORMATORY, evidence to show motive for detention of person in, p. 705. REFRESHING MEMORY, see Witnesses. REFUSAL, see Demand and Refusal. REGISTERS, see Records. RELATIONSHIP, presumption of agency from, p. 184. RELATIVES, implied contract to pay for services of, p. 458. RELEASE, mental capacity to give, p. 567. oral evidence of lack of consideration, p. 358. as to intent of parties, p. 620n. presumption of consideration from seal, p. 358. RELIGIOUS SOCIETIES, judicial notice as to, pp. 634, 689. REMEDY, election, see Election of Right or Remedy. REPAIRS, as proof of acceptance of highway, p. 62. REPEAL, of law by custom, p. 481. REPLEVIN, evidence admissible under pleading, p. 377n. evidence as to character, pp. 318n, 319. presumption of defendant's receipt of written demands by plaintiff, p. 666n. REPORTS, by agent or employee to employer as evidence, p. 148. evidence of extracts from, p 51. REPUTATION, admissibility of general reputation to show knowledge of fact, p. 656. as to agency, p. 168. revocation of, p. 193. ■992 INDEX. EEPUTATION— ( continued) . as to absence from state, p. .43. as to boundaries, p. 253. as to care and skill, p. 324. as to character, pp. 318, 320, 396. as to death, p. 413. as to financial condition, pp. 340, 401, 605. as to insanity, p. 601. as to marriage, p. 678. as to ownership, p. 776. as to residence, p. 817. as to solvency or insolvency, pp. 401, 605. as to title, pp. 155, 861. RESCISSION, delay in rescinding as an election to affirm, p. SlflL RES GESTAE, see Hearsay; Res Gestae. RESIDENCE, see also Domicil. absence from state, p. 819. burden of proof, p. 820. declarations and conduct, p. 818. deposition, residence of deponent, p. 820. direct testimony, p. 817. distinguished from citizenship, p. 326. fugitive from justice, p. 819. general reputation, p. 817. instrument executed out of the jurisdiction, p. 819, place of business, p. 818. presumption as to, pp. 818, 819, 820. presumption of continuance, p. 820. what is, p. 816. REVIVAL, see Abatement and Revival. REVOCATION, «f agency, see Agency. RIVERS, judicial notice as to, p. 642. ROBBERY, finding of stolen property on person, p. 556n. ROMAN CATHOLIC CHURCH, judicial notice as to nature and powers of, p. 634. RULES, admissibility to show duty and as to performance thereof, pp. 437n, 4.18. INDEX. 993 RUNAWAY, opinion as to care in leaving horse in action for injury to, while run- ning away, p. 269n. presumption of negligence in case of injury by runaway horse, p. 282. S SALE, acceptance by principal of order obtained by agent, p. 192n. acceptance of goods purchased, pp. 58-61. burden of proving, p. 54. burden of rebutting apparent acceptance, p. 54. admissibility of account books in evidence, p. 69. consideration, oral evidence as to, pp. 362, 364n. consideration in bill of sale as evidence of value, p. 878. delivery, pp. 51, 423n. negativing presumption that there was no implied warranty, p. 701n. parol evidence as to intent of parties to contract, p. 619n. parol evidence of warranty, p. 331n. quality of article sold, pp. 368n, 805n. SALESMAN, notice to, as notice to employer, p. 740n. SANITY, see Insanity. UTISFACTION, burden of proof, p. 821. stipulation to satisfy, p. 822. variance, p. 822. f :H00L LANDS, filing of lease of lands selected by state as indemnity for loss of, p. 475n. £ HOOLS, intent to abandon school building, p. 33n. 6 'JALS, affixing, authority, pp. 825, 826. corporate seal, pp. 824, 826. direct testimony, p. 824. impression on paper, p. 823. judicial notice, p. 824. necessity that authority of agent be under seal, p. 169. omission from record, p. 826. one for several persons, p. 825. parol assent to departure from sealed contract, p. 3. Abb. Facts — 63. y- 994 INDEX. SEALS — {continued) . presumption of consideration from use of, p. 358. record as proof of, p. 826. waiver of contract under, by executed parol agreement, p. 3. SEAMAN, opinion of, as to distance at which light can be seen on water, p. 857. SEDUCTION, competency against offspring, of judgment in seduction, p. 833. evidence as to character in action for, p. 319. inspection of child on issue of paternity, p. 780. SEPARATION, see Divorce and Separation. SERVICE, of notice, proof of, p. 827. SERVICES, opinion evidence as to value of, p. 876. presumption of employment from rendering of, p. 458. SET-OFF AND COUNTERCLAIM, recoupment for breach of oral agreement collateral to written con- tract, p. 329. SEWER, expert evidence as to construction of, p. 367n. SHAMMING, expert testimony as to whether person was feigning pain, p. 471. SHIPPING, expert testimony as to necessity of jettison, p. 714. nationality of vessel, p. 709. presumption that articles were necessary to fit out a vessel, p. 714. right to abandon insured vessel, p. 28. SHORTHAND NOTES, proof of testimony in former proceeding by transcript of, p. 852. SIDEWALKS, see Highways. SIGNATURE, authority to sign, p. 828. document produced on notice, p. 827. genuineness of, see Handwriting. oral evidence to explain, p. 828. SIGNBOARDS, evidence of inscription of names on, p. 776. SIGNS AND SIGNALS, dying declarations by, pp. 448, 829. understanding of witness as to meaning of, p. 829. INDEX. 995 SILENCE, estoppel' by, p. 462. presumption of consent from, p. 356. presumption of ratification from, p. 810. SINGLE INSTANCE, to prove habit, p. 502. SKILL, see Competency and Skill. SLANDER, see Libel and Slander. SMALLPOX, judicial notice of common belief that vaccination prevents, p. 633. SOCIETIES, record of, to show membership, p. 687. SOLVENCY, see Insolvency; Solvency, and Financial Condition. SOUNDS, direct testimony as to hearing of, p. 548. SPAIN, judicial notice of laws of, p. 639n. SPECIFIC DENIAL, see Denial. SPEED, comparison by combining witnesses, p. 832. declarations as part of the res gestas, p. 832. direct testimony, opinion, p. 830. SPELLING, evidence of mistake in, on question of genuineness of handwriting, p. 543. SPIRITUALISM, belief in, as evidence of insanity, p. 602. STAGE COACH, presumption of negligence from overturning of, p. 289n. STAMP, intent to evade statute requiring stamp on instrument, p. 617. STANDARD OIL COMPANY, presumption of intent to create monopoly, p. 618. STANDARDS, of weight, p. 883. STANDARDS OF COMPARISON, on question of disputed handwriting, see Handwriting. 996 INDEX. STATUTE OF FRAUDS, see Contracts. STATUTES, admissibility of evidence to sliow mistake in, p. 696 n. as to admission of books of account in evidence, p. 73. books of deceased person, p. 77. entries by boolikeeper, p. 81. effect of statute making party competent witness for self on right to introduce account books in evidence, p. 81. effect of statute prohibiting party from testifying on admissibility of account books in evidence, p. 81. foreign statute, see Foreign Law. judicial notice of, p. 637. making certified copy evidence equally with original, p. 386. making injury prima facie evidence of negligence, p. 292. recitals in, as evidence against party in whose favor passed, p. 756n. requiring actual notice of unrecorded deed as equivalent of registra- tion, p. 725. STENOGRAPHER'S NOTES, proof of testimony in former proceeding by means of, p. 852. STIPULATIONS, stipulation to satisfy party to contract, p. 822. STOCK CERTIFICATES, proof of genuineness of, p. 490. STREET RAILWAYS, as carriers, see Carriers. abandonment of franchise, p. 12n. judicial notice as to business and operation of, p. 634. opinion as to safety of appliance on horse car, p. 269n. opinion as to possibility of stopping car in time to avoid col- lision, p. 269n. as to speed, p. 830. SUBSCRIBING WITNESS, opinion of, as to sanity or insanity, p. 597. SUBSTITUTION, of parties as prima facie evidence of death, p. 414. SUDDEN STARTS OR STOPS, presumption of negligence from injury by, to passenger, p. 289n. SUICIDE, findings of coroner on question of, p. 316. opinion evidence as to, p. 304n. as to cause of, p. 308. presumption and burden of proof as to, p. 65. INDEX. 997 SUICIDE— ( continued ) . presumption of insanity from, p. 573. weight of opinion as to sanity of one giving, p. 596. SUN, proof of rising or setting of, by almanac, p. 834. SUPERIMPOSITION, superimposing disputed signature on genuine one, p. 543. SURETYSHIP, see also Principal and Surety. SURPRISE, right of parties surprised by evidence, p. 835. SURRENDER, oral surrender, p. 836. presumption of, p. 836. SURVEY, admissibility in evidence, pp. 248, 712. judicial notice of abbreviations in, p. 35n. SURVEYORS, declarations of deceased surveyor as to boundaries, p. 254. opinion of, on question of boundary, p. 252. SWITCH, evidence as to measurements of, p. 686. SYMBOLS, interpreting symbols in account books, p. 99. judicial notice of meaning of, p. 633. oral evidence to explain, pp. 99, 210. T TABLES, admissibility in evidence of tide tables, p. 645n. of days, p. 405. of years, p. 405. TAMPERING, with witnesses, jurors, or evidence, pp. 838, 839. TAXES, admissibility in evidence of tax deed not acknowledged or reeordedi p. 115. competency of assessment roll to show title, p. 864. failure to pay, as proof of abandonment of title, p. 31. judicial notice as to customary rate of taxation, p. 634. payment of, as evidence of possession, p. 797. proof of payment of, on question of adverse possession, pp. 156n, 157. receipt as evidence of payment of, p. 782. recitals in tax deed, pp. 756n, 757n. 998 INDEX. TAXES — ( continued ) . tax valuation and assessment as evidence of value, p. 877. unacknowledged tax deed as prima facie evidence of regularity of proceedings, p. 116. TEARS, evidence as to shedding of, p. 469. TECHNICAL TERMS, oral evidence to explain, p. 216. TELEGRAMS, admissibility in evidence to show absence of person, p. 44. best and secondary evidence, p. 840. connected correspondence, p. 841. judicial notice that messages must be written, p. 634. not privileged, p. 839. presumption of delivery, p. 841. presumption of negligence from mistake in message, p. 283n. TELEPHONES, judicial notice as to, p. 842. Evidence of conversation over. agency of operator, p. 843. identification of speaker, pp. 842, 843. recognition of speaker, p. 842. TENANTS IN COMMON, see Cotenancy. TENDER, actual production, p. 844. burden of proof, p. 844. formal tender dispensed with where it would be useless, p. 872]!. having in sight, p. 844. necessity of alleging excuse for not tendering, p. 464. offer and readiness, p. 844. place of, p. 845. waiver, p. 845. "willingness" to pay, p. 845. TEST, of knowledge of witness to handwriting, p. 518. TESTAMENTARY CAPACITY, see Insanity. TESTIMONY GIVEN IN FORMER PROCEEDING, admissibility of proof of former testimony generally, p. 846. deposition, p. 848. diligence in procuring deposition, p. 851. identity of parties and subject-matter, p. 849. INDEX. 999 TESTIMONY GIVEN IN FORMER PROCEEDING— (oontireited). impeachment of witness by, p. 851. oath, p. 850. opportunity to cross-examine, p. 849. proof of death, absence, or disqualification, p. 850. proving by bill of exceptions, p. 854. by official reporter's transcript, p. 852. by stenographer reading notes, p. 852. by witness who heard, p. 853. THEOSOPHY, belief in, as evidence of insanity, p. 602. THINGS, evidence as to condition of, pp. 345, et seq. THREATS, proof of, by acts, p. 855. TIDE, flow of, p. 855. judicial notice as to, p. 642. TIDE TABLES, admissibility in evidence, p. 645n. TIME, see also Date. comparison, p. 856. effect of time at which entries are made on admissibility of account books in evidence, p. 88. elapsing between dying declarations and death, p. 447. entries and records as proof of, p. 860. judicial notice as to computation of, p. 634. judicial notice as time necessary for transportation of express matter, p. 634. of acknowledgment of deed, p. 115. of alteration of instrument, p. 197. of death, p. 412. of entries in account books, p. 99. of taking oath of office, p. 752. presumption as to time of entries in account books, p. 99. presumption of accord and satisfaction from lapse of, p. 68. of grant from lapse of, pp. 500, 501. of payment from lapse of, p. 784. reasonableness as question for jury, p. 812. reasonableness of time for return of account stated, p. 111. to which opinion as to sanity relates, p. 594. Direct testimony ; opinion. time necessary for specified distance, p. 859. time necessary for specified work, p. 859. 1000 INDEX. TIME — ( continued ) . time of entries in account books, p. 99. time or distance to stop train, p. 857. time spent, p. 856. time to get off train, p. 858. TITLE, abandonment of, p. 31. admissibility of abstract of, in evidence, p. 50» admissions, p. 864. assessment roll, p. 864. conveyance by one in possession, p. 862. declarations, pp. 142, 865. deed founded on judicial proceedings, p. 863. direct testimony, p. 861. as to claim of. p. 328. general reputation, p. 861. opinion as to marketableness, p. 866. oral evidence to supply defects, p. 864. presumption of, from possession, p. 796. presumption of possession, from evidence of title, p. 796. refusal of others to pass, p. 866. TOMB-STONE, evidence as to inscription on, to show age, p. 160. evidence of inscription on, to shovp death, p. 408. TOWING, evidence on question of negligence in towing, pp. 266n, 267n». TOWNS, judicial notice as to size of, p. 642. of nonexistence of town of given name, p. 643n. of population of, p. 634. of township line, p. 643n. TRACING, proof of deposit in bank in order to trace funds, p. 433i TRACKS, made by shoes, as evidence of identity, p. 556n.. TRADE DESIGNATION, testimony of expert as to, p 708. TRADEMARKS, abandonment, presumption, p. 29. TRADE SCHEDULE, of prices as evidence of value, p. 877. TRADE TERMS, oral evidence to explain, p. 216. INDEi. 1001 TRADE USAGE, see Usage and Custom. TRANSCRIPT, of ofReial reporter's notes, proof of testimony in former proceeding: by, p. 852. TREATIES, judicial notice of, p. 637. TREATMENT, direct testimony as to whether treatment of person was kindly, p. 866. TRESPASS, photograph of rocks and rubbish deposited by, p. 354. to try title, evidence as to character, p. 318n. TRESPASSERS, judicial notice as to brakeman's authority to eject, from freight train,, p. 634. TRESTLE, opinion as to proper manner of constructing, p. 268n. TRIAL, comparison by jury or referee of disputed handwritings, p. 538. inspection by jury of altered instrument, p. 202. taking to jury room standards of comparison on question of disputed: handwriting, p. 539. waiver of objection by taking another, p. 881. Sufficiency of evidence to go to jury. as to account stated, p. 110. on question of agency, p. 178. on question of person's knowledge of presence of articles in his room,. p. 650. Questions of law and fact. assent as question for jury, p. 230. as to whether proper foundation for admission of dying declarations- has been made, p. 449. credibility of dying declarations, p. 451. genuineness of standards of comparison in case of disputed writing,. p. 532. materiality of alterations in instrument, p. 201. reasonable diligence, p. 812. reasonable time, pp. Ill, 812. TRUST DEED, presumption of assent of creditors to deed of trust beneficial t* them, p. 55. TRUSTS, identity of cestui que trust, p. 559n. possession of cestui que trust as notice, p. 734. 1002 INDEX. TURNTABLE, evidence on question of negligence as to, p. 276n. U UNDATED ENTRIES, in account boolcs, effect on admissibility in evidence, p. 89. UNDUE INFLUENCE, presumption and burden of proof as to, pp. 492, 570. UNEXPRESSED WILLINGNESS, equivalent to consent, p. 356. UNSIGNED WRITING, as evidence of terms of contract, p. 375. USAGE AND CUSTOM, burden of proving ignorance of, p. 683. cogency of evidence, p. 871. common consent as basis of, p. 871. contradicting existence of usage on wliich witness bases belief, p. 261. direct testimony, p. 869. as to knowledge of, p. 871. judicial notice of, pp. :i59, 261, 634, 635n, 637n, 642. parol evidence as to usage arising out of foreign edict, p. 870. presumption of knowledge, p. 870. single cases, p. 870. single witness, p. 870. Admissibility of evidence of. competency generally, p. 867. general usage as to abbreviations, p. 36n. proof of usage peculiar to party to explain abbreviation, p. 37n. in force in territories acquired by United States, p. 481. not competent to create contract, p. 868. of officer, p. 718. of particular business house, p. 261. of trade as to quantity called for by measure, p. 683. on question of agent's authority, p. 185. on question whether contract was made, p. 380. proof of business custom where details of fact are forgotten, p. 483. to contradict contract, pp. 380, 867. to control meaning, p. 868. to corroborate hearsay, p. 390. to explain ambiguous contract, pp. 214, 867. to prove scope of particular trade, p. 260. usages of language on question of genuineness of document, p. 543. USE, of highway, presumption from, p. 57. as proof of acceptance of dedication, p. 62. USURY, evidence as to intent, p. 610. oral evidence as to, p. 561n. INDEX. 1003 V VACCINATION, judicial notice of common belief in, p. 633. VAIN THINGS, not required by the law, p. 872. VALUE, assessment, p. 877. consideration in deed or bill of sale, p. 876. cost, p. 874. market reports, p. 877. offers and refusals, p. 875. of foreign coin, p. 878. of lost article, p. 873. of things in action, p. 877. opinions, p. 876. trade scale of prices, p. 877. VAEIANCE, between pleading and proof, see Evidence. VEHICLES, opinion evidence as to speed, p. 830. VENDOR AND PURCHASER, allowing grantee to testify to deed as that of person since deceased, p. 517n. consideration generally, see Consideration, consideration in deed as evidence of value, p. 876. conveyance by one in possession as evidence of title in grantee, p. 862. conveyance of homestead as proof of abandonment, p. 25n. declarations against title by former owner, p. 142. identity of grantor, p. 558n. identity of intended vendee of lands, p. 559n. mental capacity of parties, see Insanity, po^ession of real property as notice, pp. 723 et seq. presumption and burden of proof as to good faith of purchaser, p. 496. presumption of grant, pp. 500, 501. oral evidence as to consideration of deed, pp. 360, 364. to impair remedy of purchaser under grantee as against grantor, p. 360. oral evidence of collateral agreement or stipulation by grantor or grantee, pp, 330n-332n. oral evidence to explain description of land, p. 802n. receipt in deed for purchase money as evidence of payment, p. 782. record as notice, p. 750. VIEW, W J"ry, p. 353. VOICE, identifying person by, pp, 533, 556n. 1004 INDEX. VOLUMINOUS WRITINGS, abstracts of, p. 48. use of, to refresh memory of witness, p. 487. W WAIVER, acts and declarations, p. 880. direct testimony, p. 879. neither consideration nor estoppel needed, p. 880. of tender, p. 845. one objection not waived by another, p. 881. oral evidence, p. 879. notwithstanding stipulation requiring writing, p. 879. WATERS, abandonment of water rights, pp. 17, 18. judicial notice as to, pp. 642, 711. as to artesian wells, p. 633. of necessity of irrigation, p. 713. diversion; opinion evidence as to cause of, p. 309n. government survey of water as evidence on question of navigability, p. 712. navigability, presumptions and burden of proof as to, p. 712. what effect log floating in, had in changing current, p. 309n. Obstruction; overflow. loss or abandonment of right of flowage, p. 18. opinion evidence as to cause of overflow, p. 303n. opinion evidence as to effect of obstruction, p. 309n. precautions subsequent to injury to prevent flooding, p. 277n. WAX, necessity of wax seal, p. 823. WAYS, Ahandonment of easement of. declarations, p. 17. deviation or use of substituted way, p. 14. nonuser generally, p. 12. obstruction of, or cutting off access to, p. 15. whose acts in attempting to abandon are binding on dominant owner, p. 16. WEALTH, evidence to show, p. 882. WEATHER, comparison of, p. 882. freezing of other articles, p. 882. records as to, p. 881. WEIGHT, see also Measure. proof nf incorrectness of, p. 883. INDEX. 1005 WILLS, ambiguity in, generally, see Ambiguity. admissibility in evidence on question of change of domicil, p. 5. admissibility in evidence of copy of lost or destroyed will, p. 389. burden of proof as to time of alterations in, p. 199n. declarations on issue as to forgery of, p. 149. declarations of testator to prove existence or contents of lost or de- stroyed will, p. 145. intent of testator generally, see Intent. mental capacity of testator, see Insanity. oral evidence to explain description of premises in, p. 802n. parol evidence as to whether instrument was intended as a will, p. 626. presumption and burden of proof as to intoxication of testator at time of executing will, p. 632. presumption of acceptance of provision made by, p. 56. presumption of testator's knowledge of contents, p. 652n. probate of, as proof of death, p. 414. proof of disputed handwriting, see Handwriting. testamentary capacity, declarations of deceased subscribing witness as to, p. 146. Undue influence. declarations of testator to show, p. 143. evidence to show motive for discriminating against child where will is attacked on ground of undue influence, p. 705. Revocation. presumption and burden of proof, p. 616. presumption of knowledge that marriage revokes will, p. 655n. proof of declarations of testator on issue of his intention in destroy- ing will, p. 144. proof of testator's declarations to overcome or sustain presumption of revocation where will cannot be found, p. 144. ■WITCHCRAFT, belief in, as evidence of insanity, p. 602. WITNESSES, as to bias generally, see Bias. corroboration of, see Corroboration. evidence as to character in action for attempted subornation of wit- nesses, p. 319. failure of witness to identify person to whom testimony refers, p. 552. inspection of, by jury to determine qualifications and intelligence, p. 325. right to read to illiterate witness in presence of jury writing signed with his mark, p. 488. tampering with, proof of, p. 838. tampering with, as admission of bad case, p. 237. 1006 INDEX. WITiU'ESSES— (continued) . Competency. evidence to show contingent interest in assignor of cause of action p. 235. of one of several physicians conducting autopsy to testify to fact ob- served by another, p. 236. of witness as to character or reputation, p. 323. of witness to handwriting, see Handwriting. of witness giving opinion as to sanity, see Insanity. of witness giving opinion generally, see Opinions and Conclusions. to explain alteration in instrument, p. 206. Examination. asking witness what he would have done if certain representations had not been made, p. 562. asking witness who refused to answer positively if he "thinks" fact was so, p. 238. form of question to witness giving opinion, p. 270. interrogating witness to discover name of person from whom informa- tion was obtained, p. 707. of expert witness as to insanity, see Insanity. of expert witness, generally, see Opinions and Conclusions. of witness to handwriting, see Handwriting. Gross-examination. as to capacity to judge age of person, p. 164. by documents used to refresh memory of witness, p. 487. for purpose of contradicting, pp. 314, 379, 520, 525. of expert generally, pp. 760, 767. of expert as to sanity, p. 585. of nonexpert giving opinion as to sanity, p. 595. of party testifying to his belief at given time, p. 238. of witness to handwriting, pp. 519, 520, 525. opportunity to examine witness whose testimony in former proceed- ing is offered, p. 849. requiring witness whose writing is in dispute to write for purpose of comparison, p. 507. to show bias, p. 241. Refreshing m,emory. as to date, p. 403. as to forgotten name, p. 707. by authorizing irrelevant inquiry, p. 483. cross-examination by documents used for, p. 487. use of accounts to refresh memory, p. 102. use of memoranda to refresh memory, p. 484. of witness to handwriting on cross-examination, p. 519. Impeachment; discrediting; contradiction. contradiction generally, p. 378. INDEX. 1007 WITN'ESSES— (continued) . bias, hostility, interest, p. 379. by former testimony, p. 851. character or reputation, p. 379. declaratiofta to impeach testimony; calling witness's attention, p. 241. effect of contradiction to let in corroborative evidence, p. 391. of answer given by adversary's witness on cross-examination, p. 839. of dying declarations, p. 450. of expert as to sanity, p. 585. of nonexpert opinion as to insanity, p. 595. of one's own witness, pp. 380, 839. of testimony as to date, p. 404. of testimony of witness given on former proceeding, p. 851. on cross-examination, pp. 314, 379, 520, 525. right to explain impeaching evidence, p. 466. Credibility. credibility of dying declarations, p. 451. proof of hostility, bias, interest, or character, pp. 240, 379. WORDS, judicial notice of meaning of, p. 633. WORK. evidence on question of acceptance of, p. 61. WOUND, opinion as to cause of, p. 305. WRIT AND PROCESS, presumption that single copy of notice directed to two defendants was delivered by postal authorities to each, p. 665n. proof of service of notice, p. 827. WRITING IN COURT, by person whose writing is in dispute, p. 506. X X-RAY PHOTOGRAPHS, admissibility in evidence, pp. 341, 794. KF 8935 A72 B5 1912 Author Vol. Abbott, Austin Title Copy Modes of Proving the Facts rwii ULWiM ' tf \ nt i MH i m Mm m