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 "■^ A treatise on the law o' evidence. 
 
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TKEATISE 
 
 ON 
 
 THE LAW OF EVIDENCE, 
 
 TENTH ENGLISH EDITION, 
 
 WITH CONSroEEABLE ALTERATIONS AND ADDITIONS, 
 
 BY THE EIGHT Hon. S. MAECH PJEILLIPPS, 
 
 AND 
 
 THOMAS JAMES AENOLD, Esq., 
 
 OHZ or THE FOLICB MASISTBATES FOB THE 1II:TROFOI.I9. 
 
 FIFTH AMERICAN EDITION, 
 
 WITH 
 
 COWEISr AND HILL'S NOTES, 
 
 WITH ADDITIONAL NOTES AND',R^FEp;NCES TO THE ENGLISH AND 
 AMERICAN CASES, TO THE PRESENT TIME.' 
 
 ISAAC EDWAEDS 
 
 COUHSELOB AT LAW. 
 
 VOL. I. 
 
 NEW YORK: 
 BANKS & BROTHERS, LAW PUBLISHERS, 
 
 144 NASSAU STREET, 
 AND 475 BROADWAY, ALBANY. 
 
 1868. 
 
Entered' according to Act of Congress, in the year eighteen hundred and thirty-nine, 
 
 BY GOULD, BANKS & CO., 
 
 In the Office of the Clerk of the Southern District of New York. 
 
 Entered according to Act of Congress, in the year eighteen hundred and forty-nine, 
 
 BY BANKS, GOULD & CO., 
 
 In the Office of the Clerk of the Southern District of New York. 
 
 Entered according to Act of Congress, in the year eighteen hundred and fifty nine, 
 
 BY BANKS & BROTHERS, 
 
 In the Clerk's Office of the District Court of the Southern District of New York. 
 
 Entered according to Act of Congress, in the year eighteen hundred and sixty-seven, 
 V BY BANKS & BROTHERS, 
 
 Ih the Clerk's Office of the District Court of the Southern District of New York. 
 
NOTICE TO THE READER. 
 
 In preparing this Fifth American Edition, the plan of the last, that of 
 1858, has been continued; and the notes to recent decisions, bringing the 
 authorities dowa to the present time, have been added and distinguished in 
 the manner described in'the following preface to that edition. The refer- 
 ence in the indexes and tables of cases is made to the marginal paging. " 
 
 The competency of witnesses at common law, and under recent statutes, 
 is considered in the third volume. 
 
 A table showing in brief the contents of the American Notes will be 
 found in the first volume. 
 
 Albany, September, 1867. 
 
'4» 
 PREFACE 
 
 TO THE FOURTH AMERICAN EDITION. 
 
 This treatise, which has already passed through ten editions in England 
 and been as often revised by its author, holds deservedly high rank as an 
 elementary exposition of the Law of evidenee ; while the notes by Messrs. 
 Cowen & Hill, elaborate and comprehensive beyond any work of the kind, 
 have given to these volumes the highest value and widest reception. 
 
 The new form in which the present edition appears, demands from the 
 editor a few words of explanation. The notes are printed in the same 
 volume with, and (as far as practicable) immediately under the text to 
 which they refer — a change in the mode of printing that will doubtless 
 prove convenient, and greatly facilitate the labor of comparing one part of 
 the work with another. The notes, which contain frequent references from 
 one to another, are numbered from the beginning of the first to the end of 
 the third volume, and are printed without alteration ; those added to the 
 previous edition by Mr. Van Cott, retain the designation of stars by which 
 they were distinguished from the others, and the citation of new authorities 
 and statutes in this, are inclosed in parentheses. Keeping this in mind, the 
 reader will readily place the responsibility of the successive annotations 
 where it belongs. 
 
 By a careful study of the notes, it will be seen that as a general rule, the 
 division of either of them into separate parts cannot be made without 
 breaking that fine chain of reasoning and discussion that runs through 
 nearly all of them, making each a complete essay in itself. In a few cases 
 the note embracing two subjects and appearing to be fairly divisible, has 
 been divided, so as to bring each part under the appropriate head of the 
 text ; and here and there, where tfte author in his late revision has adopted 
 into the text only part of such a note, the part so appropriated has not been 
 reprinted in its original form. 
 
 In frequent instances the original note, citing and commenting upon 
 English authorities, has been wholly absorbed and embodied in the text, 
 enriching that at the expense of the annotators; in these instances, of 
 course, the note has not been reprinted, as such. Occasionally, the note, in 
 its nature indivisible, has been only partly incorporated into the text, and 
 has therefore, as a rule, been retained in full as written. In brief, the 
 entire work has been reproduced with the design of preserving the notes 
 intact, at far as practicable. 
 
Tl PEEFACE. 
 
 The text, it ■will be seen, is reprinted from the last English edition, -which 
 has been revised to meet the altered condition of the law ; some parts of it 
 have been rewritten, and others transposed|rj and others again, including 
 Sections iv, v, vi and vii, of Chapter v, of the former edition, devoted to 
 the incompetency of witnesses on the ground of interest, have been wholly 
 omitted. This change and re-arrangement of the text, required by recent 
 acts of legislation, have made it necessary to re-arrange the notes. 
 
 The two first volumes embrace the last edition of the text and the notes 
 of Messrs. Cowen & Hill, with the exception of that part of them relating 
 to the competency of witnesses covered by the omitted sections. These 
 sections and the notes to thein. are printed in the third volume ; which also 
 contains that part of the text of a fprmer edition which gives the rules of 
 evidence applicable in the conimo^-law forms of action, with the valuable 
 notes published in previous editions. 
 
 Each volume contains an index to itself, and the third, besides an index 
 to itself, a general index to the entire work ; the references in ea,ch being 
 made to, both the text and notes, 
 
 The labor of editing this new edition and adding references to the later 
 authorities and statutes, greatly increased by the mode in which it has been 
 printed, need not be commented upon ; it will, however, be allowed to 
 qialify one to appreciate the ipfinite labor and research by which the great 
 body of the work has beeii prepared,, 
 
 Albany, December, 1858. 
 
NOTICE TO THE READER. 
 
 In preparing this Tenth Edition of my Treatise on the Law of Evidence, 
 I have received material assistance from my friend Mr. Arnold ; who has 
 given to the Work the greater part of the leisure time that could be spai-ed 
 from his onerous official duties. 
 
 Some great and memorable changes in the Law of Evidence have been 
 made within a few years, and since the last Edition. First, by Lord Den- 
 man's Act, which put an end to objections on the ground of interest — except- 
 ing only parties actually on the record, or those who were substantially 
 parties to a suit ; and lastly by Lord Beougham's Act, which has enacte.1, 
 that even parties on the record shall be admissible witnesses. The consti- 
 tution of the County Courts, with their new practice, prepared the way for 
 this last change, and made it unavoidable in all the Courts of Common 
 Law. 
 
 Nearly the whole of the first Volume of this Work had been composed 
 upon the basis of Lord Denman's Act, as settling the general rules of law 
 on the subject of competency of witnesses, when notice was given of the 
 change contemplated by Lord Beougham in his intended Act. This circum- 
 stance has caused some delay in the present publication. 
 
 The general plan of this Work is the same as before. But parts have 
 been newly arranged, and more than one Chapter has been entirely remod- 
 eled. Extensive additions have been made by my Coadjutor. All the new 
 decisions and new statutory provisions, that have appeared since the last 
 Edition, have been inserted by him in their proper places, and incorporated 
 with the text. Much new matter has been introduced, entirely composed 
 by him and forming Sections of Chapters, upon the following subjects : Of 
 Admissions under a Judge's Order ; Of Matters judicially noticed ; Of 
 Evidence in Matters of Opinion ; and Of Admissions on the Record. Tlie 
 Introductory Chapter, also, and the Addenda to both Volumes are his : and 
 he has taken great trouble in preparing the Tables of Contents and the 
 General Index. 
 
 It has been my chief business to superintend and direct the progress of 
 the Work; to review and rejudge, and to make any alterations that might 
 be thought necessary. 
 
 S. M. P. 
 
 Torquay, January, 1852. 
 
INTRODUCTORY CHAPTER. 
 
 *xiii *Whilb this work has been going through the press, very important 
 alterations and, as most will iacknowledge, great improvements in 
 the law of evidence have been effected by statutes passed in the session of 
 1851. ' > 
 
 It is proposed in this introductory chapter to specify the various enact- 
 ments that have been thus recently made, and to point out in what manner, 
 and to what extent they affect the various parts of the law of evidence as 
 set out in the following work. 
 
 By one of these, 14 & 15 Vict. c. 99 (The Law of Evidence Amendment 
 ■ Act), the spirit and principle of Lord Denman's Act,(l) whereby the 
 *xiv ^incompetency of persons to give evidence in a cause in the result 
 of which they were interested had been abolished, have been carried 
 out to the fullest extent. , Actual parties to the record, and persons in whose 
 direct and immediate behalf an action was brought or defended, were 
 excepted from the operation of Lord Denman's Act ; and they, therefore, 
 still remained incompetent as witnesses, unless in the rare instances where 
 they were divested of any interest in the suit. But this exception has 
 now been repealed by the new statute, (2) which enacts, that in all cases 
 parties to, a suit are to be admissible witnesses ;(3) but i: is provided that 
 no person charged with any criminal offense shall be competent to give 
 evidence for or against himself, and that in criminal proceedings neither 
 husbands nor wives are competent to give evidence for or against each 
 other; (4) nor do the provisions of the act apply to any proceedings 
 instituted in consequence of adultery or to any breach of jiromise of 
 marriage. (5) 
 
 This statute has carried out the principle established in the County 
 
 (1) 6 & 7 Vict. c. 85, infra, Chap. 4. 
 
 Lord Denman's Act (6 and 7 "Vict. c. 85), was passed in Aug., 1843, declaring that no 
 person offered as a -witBfess shall hereafter be excluded by reason of incapacity from crime 
 or interest; with a proviso, that the act "should not render competent the parties to the 
 action or proceeding, nor any person in whose immediate and individual behalf the same 
 is brought or defended, nor the husband or wife of such persons respectively ; and that 
 the act should not repeal or affect the statute for the amendment of the la^ws with respect 
 to wills. Our code of 1848 (Laws of New York, 560) declared briefly, that no person 
 offered as a witness shall be excluded by reason of his interest in the event of the action, 
 with a proviso, that this general provision should not apply to a party to the action, nor 
 to any person for whose immediate benefit it is prosecuted or defended, nor to any assignor 
 of a tiling in action assigned for the purpose of making him a witness. §g 351, 352. 
 
 Our code also provides, that a party to an'iction may be examined as a witness at the 
 instance of the adverse party, or of any one of several adverse parties ; and for that pur- 
 pose may be cdmpelled, in the same manner, and subject to the same rules of examination 
 as any other witness, to testify, either at the trial or conditionally, or upon commission. 
 ~ Code of 1848, § 344. See Vol. Ill, p. 121-140,' for the present provisions of law on the 
 subject, in New York and in most of the 'states. * 
 
 ' (3) Section 1. 
 
 (3) Section 2. 
 
 (4) Sections. 
 
 (5) Section 4. 
 
 Vol. L 2a 
 
X Alterations in the Law of Eoidence. 
 
 Courts ;(1) the experiment there made of admitting parties and their wives 
 
 having, it appears, been found to answer. 
 *xv *The above-mentioned enactments are contained in the following sec- 
 tions : 
 
 Section 2. " On the trial of any issue joined, or of any matter or ques- 
 tion, or on any inquiry arising in any suit, action or other proceeding in 
 any court of justice, or before any person having by law, or by consent of 
 parties, authority to hear, receive, and examine evidence, the parties thereto, 
 and the persons in whose behalf any such suit, action or other proceeding 
 may be brought or defended, shall, except as hereinafter excepted, be com- 
 petent and compellable to give evidence, either viva voce or by deposition, 
 according to the practice of the court, on behalf of either or any of the 
 parties to the said suit, action or other proceeding. 
 
 Section 3. " But nothing herein contained shall render any person ^ho in 
 any criminal proceeding is charged with the commission of an indictable 
 offense, or any offense punishable on summary conviction, competent or 
 compellable to give evidence for or against himself or herself, or shall 
 render any person compellable to answer any question tending to criminate 
 himself or herself, or shall in any criminal proceeding render any husband 
 competent or compellable to give evidence for or against his wife, or any 
 wife competent or compellable to give evidence for or against 8er husband. 
 
 Section 4. " Nothing herein contained shall apply to any action, suit, 
 proceeding, or bill in any court of common law, or in any ecclesiastical 
 court, or in either house of Parliament, instituted in consequence of adul- 
 tery, or to any action for breach of promise of marriage. 
 
 Section 5. " Nothing herein contained shall rejaeal any provision contained 
 in chapter twenty-six of the statute passed in the session of Parliament 
 holden in the seventh year of the reign of King William the Fourth and 
 
 the first year of the reign of her present Majesty." (2) 
 *xvi *Before the passing of this statute, the grounds of incompetency to 
 give evidence as a witness, as reduced by Lord Denman's Act, had 
 been classified under three heads ; but it may now be convenient to classify 
 the persons who are incompetent to give evidence as follows : — 
 
 1. Every person who labors under a defect of understanding ;(3) or, 
 
 2. A defect of religious principle. (4) 
 
 3. Any person charged with the commission of any offense, the subject 
 of an indictment, or punishable by summary conviction. 
 
 4. A husband or wife for or against each othe>r, in any criminal proceed- 
 ing. 
 
 5. The parties to any proceeding instituted in consequence of adultery, 
 or to any action for breach of promise of mkrriage, or the husbands or 
 wives of such parties. 
 
 The general effect of the new statute will be to render the parties to all 
 civil proceedings, and, as it seems, their wives, competent and compellable 
 to give evidence, except in the instances stated in the last-mentioned class ; 
 in other words, it abolishes the last vestige of the old rule as to incompe- 
 tency by reason of interest ; it being upon that ground only that parties to 
 
 a suit were considered incompetent to give evidence. (5) 
 *xvii *The fourth chapter, therefore, of the ensuing work, Avhich treated 
 of incompetency by reason of interest, will be principally affected 
 by the enactments under consideration. 
 
 (1) Under the 9 & 10 Vict. c. 95, infm, p. 67. 
 
 (2) The Wills Act. This act was also excepted from the operation of Lord Denmau'g 
 Act, infra, Chap. 4, pp. 27, 28. 
 
 (3) tnfra. Chap. 2, p. 9. 
 
 (4) Infra, Chap. 3, p. 14. 
 
 (5) See Worrall v. Jones, 7 Bing. 395, infra, p. 36. 
 
Parties to be Admissible Witnesses. xi 
 
 The first section of that chapter ^treats of incompetency considei-ed with 
 reference to parties individually named in the record in civil proceedings. 
 The incompetency of all such parties is now removed, with the exception 
 of proceedings instituted in consequence of adultery, or of actions for 
 breach of promise of marriage. In these excepted cases the parties still 
 remain incompetent. 
 
 In an action for criminal conversation, therefore, neither the plaintiff, nor 
 his wife, nor the defendant, will be competent to give evidence. The policy 
 of such a rule is obvious. But it would seem, according to the strict inter- 
 pretation of the statute, that in an action for goods sold and delivered, 
 brought against a husband for necessaries supplied to his wife, where the 
 defense is, that the wife has left the husband and is living in adultery,(l) 
 the defendant would *be competent and compellable to give evidence ; as 
 such an action is not a proceeding instituted in consequence of adultery, 
 
 nor a criminal proceeding. (2) 
 *xviii *In an action for breach of promise of marriage, also, neither the 
 
 plaintiff nor the defendant will be competent to give evidence. In 
 the somewhat analogous action brought by a father for seducing his 
 daughter, the daughter herself was always considered a competent witness, 
 as she did not stand within the technical rule of exclusion, not having any 
 pecuniary interest in the result of the cause. lo such an action the 
 defendant also, it seems, will now be competent and even compellable to 
 give evidence. 
 
 It seems unlikely that, after the new. act has come into operation, any 
 question can ever arise as to the admissibility of entries ' made by a person 
 who might hot have been a competent witness. 
 
 The second section of the fourth chapter treats of the rule of incompe- 
 tency consideredwith reference to parties prosecuting for offenses, and to 
 defendants in criminal proceedings. The law, as explained in this section, 
 remains unaltered by the new statutp. . As heretofore a prosecutor will be 
 competent to give evidence, and there seems now to be no doubt that an 
 informer will be so ; and a defendant in a 'criminal proceeding, being a 
 person " charged with the commission of an indictable offense, or an offense 
 punishable on summary conviction,"(3) will in general, be incompetent to 
 
 give evidence. 
 *xix *The new statute does not say that no person, who in any criminal 
 
 prpceeding is charged with the commission of any indictable offense, 
 shall be competent to give evidence, but merely enacts that its provisions 
 rendering competent parties to a siiit in general, shall not render competent 
 persons so charged. 
 
 One of s'everal defendants, therefore, in a criminal prosecution, may still 
 as before, be rendered competent, by a nolle prosequi being entered as to 
 him, or by any of the other methods pointed out by that section. 
 
 The third section of the fourth chapter treats of the rule of incompetency, 
 consideted with reference to persons in whose behalf a civil action is brought 
 or defended. Such persons who were exempted from the operation of Lord 
 Denman's Act, as being substantially the parties to the suit, are now in 
 every instance rendered competent to give evidence. " 
 
 The fourth section of the fourth chapter treats of the rule considered 
 with reference to the husband or wife of, an incompetent party. The new 
 statute does not in terms say that the wives of parties to civil proceedings 
 shall be competent to give evidence, as was expressly enacted in the statute 
 
 (1) See Ham v. Toovey, 1 Selw. N. P. 381 ; Hardie v, Grant, 8 C. & P. 513 ; Emmett v, 
 Norton, Id. 506. 
 
 (2) 14 & 15 Vict. c. 99, §§ 3, 4, supra, 
 
 (3) 14 & 15 Vict. c. 99, § 3, swpra.. 
 
xii Alterations in the Ldia of Evidence. 
 
 for establishing the county courts ;(1) it mei^ly enacts, that "parties" to 
 an action shall be competent, and that nothing thereiii " shall, in any crim- 
 inal proceeding, render any husband competent or compellable to give 
 evidence for or against his wife, or any wife competent or compellable to 
 
 give evidence for or against her husband." (2) 
 *xx *The inference to be drawn from the construction of the statute by 
 
 itself, would be that in the cases not excepted from its operation, — 
 namely, in all civil proceedings (unless such as are instituted in consequence 
 of adultery), (3) — the husband or wife of a party would be competent to 
 give evidence. But on the other hand, considering that the incompetency 
 of husbands or wives, rests not entirely on the ground, of identity of inter- 
 est, but also upon a common law'^principle of public policy, (4) it may 
 possibly be doubtful, whether the statute will be construed to have the 
 eifect of rendering a wife a competent witness for or against her husband 
 in all civil proceedings. In the case before supposed, (5) of an action 
 against a husband for necessaries supplied to his wife, where thp defense 
 is the adultery of the wife, although the defendant m^y be competent to 
 give evidence, it seems very questionable whether the wife would be permit- 
 tad to be a, witness, either to establish the fact of adultery or to contradict 
 it. (6) But it would be premature to offer any further opinion or argument 
 upon this part of the stfitute until some judicial decision sh^l have been 
 
 pronounced upon it. (7) 
 *xxi '^In criminal proceedings, neither the wife nor husband of the accused 
 
 party is com'petent to give evidence for or against the accused. 
 It may be advisable,"liowever, to consider a question which may possibly 
 arise upon the construction of the statute under notice, as to how far it may 
 affect the j-eception of admissions made by parties to a suit. This subject 
 is treated of in the tenth section of the eighth chapter of the following, 
 work. 
 
 In the case of the Queen agt. The Iphabitants of Adderbury East, (8) 
 waioh was an indictment against the inhabitants of a ownship for not 
 r jpairing a bridge, it was contended that the declaratio^is of some of the 
 i:ihabitants, which were offered in evidence, were not admissible, as they 
 had been rendered competent witnesses by the statute 3 & 4 Vict. c. 26. 
 But the court held, that the declarations were admissible, and as it appears, 
 principally upon the ground that the inhabitants, though rendered compe- 
 tent, were not compellable to give evidence. 
 
 If this were the only ground upon which the admissions of a party were 
 receivable, namely, that he could not be compelled to give evidence, it 
 would follow that since the statute 14 and 15 Vict. c. 99, § 2, makes parties 
 not only ." competent," but also " compellable to give evidence," their 
 admissions would no longer be receivable in evidence. But, it is submitted, 
 that this is not the only ground of the reception of such evidence, the prin, 
 
 (1) 9 & 10 Vict. c. 95, § 83, iiifra, p. 97. ' 
 
 (3) 14 & \n Vict. c. 99,-§ 3, svpra. 
 * (3) 14 & 16 Vict. c. 99, g 4, supra. 
 
 (4) See inJ^ra, pp. 77, 78. 
 
 (5) Supra, p. xv.ii. 
 
 (6) Aa tn the reasons for excluding the evidence of husband and wife to prove non- 
 access, see infra, p. 87. _ ' ' 
 
 (7) aince tlie above observations were in type, the stat. 14 & 15 Vict. c. 99, has come 
 into operation. The first case in which the parties were examined under it was Harrison 
 V. Dunn (Westmr. Sittings, Q. 13., Michaelmas Term, 1851, Nov. 4), au action for tUe keep 
 and maintenance of the defendant's child. After both the plaintiff and defendant had 
 given their evidence, the wife of the defendant was tendered as a witness on his behalf 
 and objected to ; but Erie, J., ruled she was a competent witness under the statute, as the 
 exception as to criminal cases showed the i!titention of the legislature to be that a wife 
 should be a competent witness for her husband in civil proceedings. 
 
 (8) 5 Q. B. 187, infra, p. 57. 
 
Defendants in Criminal Proceedings. xiii 
 
 ciple on -which it'is received being founded, as hereaftei- stated, chiefly on 
 the reasonable presumption in favor of the truth of a std,tenient, when 
 it is against the interest of the party who makes it.(]:) Admissions 
 *xxii *made by an agent in the scope of his authority, are receivable in 
 evidence against his principal, although such %gent might unques- 
 tionably be called as a witness by the opposite party. 
 
 It seems, therefore, there can be no reasonable doubt but that the admis- 
 sions of a party will still be receivable in evidence against him, notwithstand- 
 ing he may now be compelled to give evidence against his own interest. 
 
 The sixth section of the Law of Evidence Amendment Act empowers the 
 common law courts to compel the inspection of documents in all cases in 
 which equity would grant a discovery. The section is as follows : — 
 
 " Whenever any action or other legal' ptoceediiig shall henceforth be 
 pending in any of the superior courts of common law at Westminster or 
 Dublin, or the Court of Common Pleas for the county' palatine of Lan- 
 caster, or the Court of Pleas for the county of Durham, such court and 
 each of the judges thereof may respectively, on application made for such 
 purpose by either of the litigants, compel the opposite party to allow the 
 party making the application to inspect all documents in the custody or 
 under the control of such opposite party relating to such action or other legal 
 proceeding, and, if necessary, to take examined copies of the same or to 
 procure the same to be duly stamped, in all cases in which previous to the 
 passing of this act a discovery might have been obtained by filing a bill 
 or by any other proceeding in a court of equity at the instance of 'the party 
 
 so making application as aforesaid to the said court or judge." 
 *xxiii *The powers given by this enactment are an important and useful 
 extension of those previously exercised ' by the common-law courts, 
 which are treated of in the fourth chapter of the second volume of this 
 work; and they will obviate the necessity that was sometimes experienced 
 of staying proceedings until an application could be made to a court of 
 equity. *■ 
 
 The seventh seetion of the same statute renders foreign and colonial 
 acts of state, judgments atid the like, provable by certified copies, without 
 proof of the seal or signature thereto, or of the judicial chal-acter of the 
 person signing the same. The section is as follows : 
 
 " All proclamations, treaties, and other acts of state of any foreign state, 
 or of any British colony, and all judgments, decrees, orders, and other 
 judicial proceedings of any court of justice in any foreign state or in any 
 British colony, and all affidavits, pleadings, and other legal documents 
 filed or deposited in any such court, may be proved in any court of justice, 
 or before any person having by law or by consent of parties authority to 
 hear, receive, and examine evidence, either 'by examined' copies or by 
 copies authenticated as hereinafter mentioned; 'that is to say, if the docu- 
 ment scijight to be proved be a proclamation, treaty, or other act of state, 
 the authenticated copy, to be- admissible in evidence, must pui-port to be 
 sealed with the seal of the foreign state or British colony to which the 
 origipal document belongs; and if the document sought to be proved be a 
 judgtaent, decree, order, or other judicial proceeding of any foreign 
 *xxiv or *colonial court, or an afiidavit, pleading, or other legal document 
 filed or deposited in any such court, the authenticated copy, to be 
 adrhissible in evidence, must purport either to be sealed with the seal of the 
 foreign or colonial court to which the original document belongs, or in 
 
 (1) In R. V. Adderbury, ut supra, 196, Patteson, J./ says, " Every inhabitant may, 
 though a defendant, be a competent witness by statute ; but it does not follow that llfce 
 crown would compel him to give evidence against his own interest. At all events he is 
 a defendant on the record ; and what a, defendant on the record says is evidence agaiil^t 
 him in every case." 
 
xiv Alterations in the Law of Evidence. 
 
 the event of such court having no seal, to be signed hy the judge, or if there 
 be more than one judge, by any one of the judges of the said court, and 
 such judge shall attach to his signature a statement, in writing, on the 
 said copy, that the court whereof he is a judge has no seal; but if the afore- 
 said authenticated copies shall purport(l) to be sealed or signed as herein- 
 before- respectively directed, the same shall respectively be admitted in 
 evidence in every case in which the original document could have been 
 received'in evidence, without any proof of the seal where a seal is neces- 
 sary, or of the signature or of the truth of the statement attached thereto, 
 where such signature and statement are necesssary, or of the judicial char- 
 acter of the person appearing to have made such signature and statement." 
 
 This enactment will greatly simplify and facilitate the proof of foreign 
 judgments and other documents, ,which subject is treated of in the second 
 volume of this work. Chap. 5, Sect. 4. 
 
 The "feighth section of the statute renders apothecaries' certificates admis- 
 sible without proof of the seal of the corporation. It is as follows : 
 
 "Every certificate of the qualification of an apothecary, which shall 
 purport to be under the common seal of the Society of the Art and 
 *xxv *Mystery of Apothecaries of the City of London, shall be received 
 in evidence in any court of justipe, and before any person having by 
 law or by consent of parties authority to hear, receive and examine evidence, 
 without- any proof of the said seal or of the authenticity of the said certi- 
 ficate, and slfall be deemed sufficient proof that the person named therein 
 has been,, from the date of the said certificate, duly qualified to practice as 
 an apothecary in any part of England and Wales." 
 
 Previously to this statute, the seal of the Apothecaries' Company was 
 required to be proved. 
 
 The ninth section of the .statute renders documents which are admissible 
 in England or Wales, without proof of the seal or signature, equally 
 admissible in Ireland. The tenth section renders documents which are 
 admissible in a similar manner in Ireland equally admissible in England 
 and Wales ; and the eleventh section renders documents so admissible in 
 England, Wales or Ireland, equally admissible in the colonies. 
 
 The twelfth section relates to the proof of registers of British vessels, 
 and renders them, and certificates of registry, admissible as prima facie 
 evidence of their contents, without proof of the signature thereto. It is 
 as follows : 
 
 " Every register of a vessel kept under any of the acts relating to the 
 registry of British vessels may ,be proved in any court of justice, or before 
 any person having, by law or by consent of parties, authority to hear, 
 receive and examine evidence, either by the production of the original or 
 by an examined copy thereof, or by a copy thereof purporting to be cer- 
 tified under the hand of the person having the charge of the original, and 
 which person is hereby required to furnish such certified copy to any per- 
 son applying at a reasonable time for the same, upon payment of the sum 
 of one shilling ; and every such register, or such 6opy of a register, and 
 also every certificate of registry, granted under any of the acts relating to 
 the registry of British vessels, and purporting to be signed as required by 
 law, shall be received in evidence in any court of justice, or before 
 *xxvL any *person having, by law or by consent of parties, authority to 
 hear, receive and examine c\idence, tis prima facie proof of all the 
 matters contained, or recited in such register, when the register, or such copy 
 thereof as aforesaid, is produced, and of all the matters contained, or recited 
 in, or indorsed on such certificate of registry, when the said certificate is 
 produced."(l) 
 
 (1) See^Mi, Vol. II. 
 
 (l),See 8 & 9 Vict. c. 89, § 43 ; post, Vol. II. 
 
Defendants in Criminal Proceedings. xv 
 
 The thirteenth section enacts, that, where it is necessary to prove the 
 conviction or acquittal of any person charged, it shall not be necessary to 
 produce the record, but the fact may be certified under the hand of the 
 clerk of the court. The section is as follows : 
 
 " And whereas, it is expedient, as far as possible, to reduce the expense 
 attendant upon the proof of criminal proceedings: be it enacted, that 
 whenever, in any proceeding whatever, it may be necessary to prove the 
 trial and conviction or acquittal of any person charged with any indictable 
 offense, it shall not be necessary to produce the record of the conviction or 
 acquittal of such person, or a copy thereof, but it shall be sufficient that it 
 be certified, or purport to be certified, under the hand of the fclerk of the 
 court, or other officer having the custody of the records of the court where 
 such conviction or acquittal took place, or by the deputy of such clerk or 
 other ofELcer, that the paper produced is a copy of the record of the indict- 
 ment, trial, conviction, and judgment or adquittal, as the case may be, 
 omitting the formal parts thereof" 
 
 Before this enactment, it was necessary, in order to prove a conviction 
 or acquittal, that the record itself should be produced, unless it could be 
 proved to have been lost or destroyed. 
 
 Connected with this subject, it may be mentioned, that, by an earlier 
 statute passed in the same session for the better preveiition of 
 *xxvii ofienses,(l) *the provisions of the 7 <fc 8 Geo. IV, c. 18, § 11, as to 
 the proof of a-previous convictioq, for felony by a certificate thereof 
 in cases where the indictment stated a previous conviction, are extended to 
 indictments for the misdemeanors created by tha,t act (14 & 15 Vict, c 19). 
 The enactment is as follows : 
 
 " In any indictment for such misdemeanor committed after a previous con- 
 viction as aforesaid, it shall be sufficient to state that the ofiender was, at a 
 certain time and place convicted of felony or misdemeanor against " The 
 Act for the better Prevention of Ofienses, 1851" (as the case may be)', 
 without otherwise describing the previous felony or misdemeanor ; and a 
 certificate, containing the substance and effect only (omitting the foi-mal 
 part) of the indictment and conviction for the previous felony or misde- 
 meanor, purporting to be signed by the clerk of the court or other officer 
 having the custody of the records of the court where the offender was first 
 convicted, or by the deputy of such clerk or officer ij^or which certificate a 
 fee of five shillings and no more shall be demanded, or taken), shall, upon 
 pi^oof of the identity of the person of the offender, be sufficient evidence of 
 the first conviction, without proof of the signature or official character of the 
 person appearing to have signed the same." 
 
 It may be mentioned also here, that by the twenty-second swJtion.of 
 the 14 and 15 Vict. c. 100, it is enacted that upon a trial for perjury or 
 subornation of perjury, relating to the trial of any indictment for felony 
 or misdemeanor, a certificate of the trial of such indictment, purporting to 
 be signed by the clerk of the court or other officer having the custody of 
 the records of the court, shall be sufficient evidence of such last mentioned 
 trial. 
 
 The fourteenth section of the Law of Evidence Amendment Act contains 
 provisions for rendering examined copies of certain documents admissible 
 m evidence. It is as follows : — 
 
 " Whenever any book or other document is of such a public nature as to 
 be admissible in evidence on its mere production from the proper custody, 
 and no statute exists which renders its contents provable by means 
 *xxviii of a *copy, any copy thereof or extract therefrom shall be admissi- 
 ble in evidence in any court of justice, or before any person now or 
 
 (1) 14 & 15 Vict. c. 19. 
 
xvi Alterations in the Laio of Suiderice. 
 
 hereafter having fey law or by consent of parties authority to hear, receive 
 ancj examine evidence, provided it, be iiroved to be an exarnined copy or 
 extract, or provided it purport to be signed and. certified as a true copy 
 or extract by the officer to.whose custody the original is entrusted, ^and 
 ■which officer is hereby required to furnish such certified or extract to aiiy 
 person applying at a reasonable time for the same, upon payment of a 
 .reasonable sum for the sanie, not exceeding fourpence for, every folio of ninety 
 words." 
 
 IThis enactment extends the provisions of the Documentary Evidence Act, 
 (l) and will greatly facilitate the proof of public writings, not being records 
 of judicial proceedings, which subject is treated of in the sixth chapter of 
 the, sepond volume. 
 
 The fifteenth section of the statute makes the certifying a false document 
 ^misdemeanor. 
 
 , The sixteenth section enacts that any court, judge, arbitrator, or other 
 person having authority to hear evidence, may administer oaths to the 
 , >vitnesses. 
 
 Section seventeenth makes the forging of a seal, stamp, or signature of 
 any document referred to in the act a felony. 
 
 The act does not extend to Scotland, (2) and it comes into operation on 
 .the 1st of November, 1851.(3) 
 *xxix *Som,e of the provisions of two Other acts passed in'the last session (4) 
 will now be noticed. 
 
 By the fifth section of the 14 and Is'Vict. c. 19, it is enacted, that on the 
 trial of any indictment for /eZonzoMsZy cutting, stabbing or wounding, the jury 
 may acquit the defendant of tte felony, and find him guilty of the inisde- 
 naeanor, or of xinlawfully cutting, stabbing or wounding. 
 , Sy the ninth section of tKe 14 and 15 Vict. c. 100, a party indicted for a 
 „ felony or a misdemeanor, may be found guilty of an attempt to commit the 
 same, and shall be liable to the same consequences as if charged with and 
 convicted of the attempt only ; and by the eleventh section, on the trial of 
 an indictment for robbery, the jury may convict of an assault with intent - 
 to rob. In either case the defendant who has been tried for the major 
 offense shall not be liable to be prosecuted for the misdemeanor or minor 
 offense. 
 
 The twelfth section enacts, that any person tried for a misdemeanor shall 
 not be acquitted if the offense turn out to be felony ; biit he shall not be 
 Uable to be afterwards prosecuted for felony on the same facts unless the 
 court shall discharge the jury from giving any verdict as to the misde- 
 meanor, and direct the defendant to be indicted for felony. 
 
 By the thirteenth section, any person indicted for embezzlement as a 
 clerk or servant, is not to be acquitted if the offense turn out to be a larceny, 
 and vice, versa : and in either case the person tridd for the one offense shall 
 not be liable to be afterwards ^prosecuted for the other offense upon the 
 
 same facts. 
 *xxx *By the fourteenth section it is enacted, that upon an indictment for 
 jointly receiving, persons guilty of separate receiving may be con- 
 victed. 
 
 (1) 8&9Vict. c. 113, §1. See Vol. II. 
 
 (3) Sect. 18. 
 (8 Sect. 30. 
 
 (4) 14 & 15 Vict. c. 19, For the better Prevention of Offenses ; and 14 & 15 "Vict. c. I'OO, 
 . For tHe Improvement of tlie Administration of Criminal Justice (Lord Campljell's Acts). 
 
 The 3d Section of the first-mentioned act, as to the proof of previous convictions, and tlie 
 23d section of the last-mentioned act, as to proof of the trial of an indictment, have been 
 already noticed {supra, pp. xxvi, xxvii). The 1st, 3d, and 8d sections of the last-mentioned 
 act, also relating to amendments in criminal proceedings, will be found in the text of the 
 
Admissions by Parties to Suit. xvii 
 
 These enactments materially and beneficially alter the law as laid down 
 in that part of Chapter 1, Section 1, in Vol. II (Of the Admissibility and 
 Effect of Judgments and Verdicts), relating to the effect of the plea of 
 autrefois acquit.{\) 
 
 In the same section of this work, reference was made to the statute 1 
 Wm. IV, and 1 Vict. c. 85, § 11, whereby on an indictment for felony, 
 including an assault, the defendant might be convicted for an assault only. 
 But now, by the 14 and 15 Vict. c. 100, § 10, after reciting that great diffi- 
 culties had arisen in the construction of the above mentioned enactment,(2) 
 the same is repealed. (3) 
 
 The statute "7 and 8 Geo. IV, c. 28, contains provisions for the more exem- 
 plary punishment of offenders afl;er a previous conviction. The 6 and 7 
 Wm. IV, c. Ill, provides that a previous conviction is not to be given in 
 charge or read to the jury until after the finding for the subsequent felony, 
 except when evidence as to good character is given. The subsequent 
 *xxxi statutes, 12 and 13 Vict. c. 11, and 14 and 15 Vict. c. 19, *contain 
 similar provisions as those contained in the V and 8 Geo. IV, c. 28 ; 
 and the ninth section of the 14 and 15 Vict. c. 19, contains a similar pro- 
 vision as that contained in the 6 and 7 Wm. IV, c. 111. 
 
 work, Vol. I, Chap. 12.' The provisions also of another statute relating to the expenses 
 of prosecutions (14 & 15 Vic. c. 55) will also be found in Vol. II,, Chap. 2. 
 
 (1) The provisions of the above mentioned statute, which was before Parliament at the 
 time that chapter went through the press, are referred to in Vol. II. 
 
 (2) See Vol. II. 
 
 (3) The provisions of the 5th section of the 14 & 15 Vict. c. 19, and of the 9th and 11th 
 sections of the 14 & 15 Vict. c. 100 {supra), seem intended to be substituted for those of 
 the 7 Wm. IV and 1 Vict. c. 85, § 11. See Vol. II. 
 
 Vol. I. 3a 
 
CONTENTS. 
 
 VOLUME I, 
 
 [it is the marginal page which 18 REEERRED TO.] 
 
 IlSrTRODUCTORY CHAPTER. 
 
 Alterations in the law of evidence by recent stat- 
 utes xiil-xxxi 
 
 14 & 15 Vict, c 99 (Law of Evidence Amend- 
 ment Act) siii 
 
 Sect. 2.— Parties to be admissible as wit- 
 nesses sv 
 
 Sect. 3.— Person charged with criminal of- 
 fense not compellable to give evidence 
 
 tending to criminate himself &c sv 
 
 Sect. 4.— Not to apply to proceedings in 
 
 consequence of Adultery xv 
 
 Sect. 5.— Not to repeal provisions of 7 Wm. 
 
 IV. & 1 Vict. c. Sfi (The Wills Act) xv 
 
 Parties to civil suits now competent {,itifra^ 
 
 Chap. 4. p. 2f>-Sect. 1, p. 29i xvi 
 
 Partie* stilt remaining incompetent xvii 
 
 In proceedings instituted in consequence 
 
 of adultery xvii 
 
 lu action for breach of promise of mar- 
 
 ria'^^e ...',. xviii 
 
 Entries by persons incompetent to give 
 
 evidence xviii 
 
 In criminal proceedings xviii 
 
 Prosecutor xviii 
 
 Defendant iu general incompetent fiw/ra, 
 
 p. fi^l) . . .y . . xviii 
 
 May btt rendered competent as formerly 
 —nolle prosequi,, &C., {infra, p. 64, et 
 
 seq.) *...*.... xix 
 
 Persons beneficially interested now compe- 
 tent i^infra, C^hap. 4. Sect. 3, p. lifi) xix 
 
 Wives generally incompetent in civil pro- 
 ceedings iinfra, Uhap. 4, Sect. 4, p. 77) xx 
 
 Query, in all cases xx 
 
 Wife or husband of accused not rendered 
 
 competent xxi 
 
 Admissions by parties to suit {infra Chap, 
 
 8, Sect. 4, pp. S:t7. 300) xxi 
 
 14&l5Vict c.n;) —Principle of admissibility, xxi 
 Ssct. H.— Common-law courts authorized to 
 compel inspection of documents, when- 
 ever equity would grant discovery t^post^ 
 
 Vol n. pp. 831.3-22) xxii 
 
 SiCt. 7.— Fijreign and colonial acts of state, 
 judgments, &c , provable by certified 
 copieSf without proof of seal or signa- 
 
 ture, or judicial character of person sign- 
 ing {post^ Vol. II, Chap. 5, Sect. 4, p. 
 41H) xxiii 
 
 Sect. 8 —Apothecaries' certificates admissi- 
 ble without proof of seal {post^ Vol. II, 
 p. 45S;>n. 2) xxiv 
 
 iffecfe. 9, 10, 11 XXV 
 
 Sect. 12.— Registers of British vessels and 
 certificates of registry admissible as 
 prima fade evidence of their contents, 
 without proof of signature, &c. {post, 
 Vol. II. p. 444, n.) XXV 
 
 Sect. 13. — Where necessary to prove convic- 
 tion or acquittal of person charged not 
 necessary to produce record, but may be 
 certified under hand of clerk {post. Vol. 
 
 II. pp. 35(}, 357) xxvi 
 
 14 & 15 Vict. cap. 19, § 2.— Certificate of pre- 
 vious conviction {post Vol. II, p. 35fi). . . xxvi 
 
 — cap. 100 § 23.— Certificate of 
 
 trial of indirtment {mfra^ p. 581) xxvil 
 
 cap. 99, § 14.- Eximined or 
 
 certified copies of (public) documents ad- 
 missible in evidence {post, Vol. II, Chap. 
 6. p. 437 ; and see pp. 443. 444) xxvii 
 
 Sects. 15, 16, 17 xxviii 
 
 14 & isyict cap. 19 § 5.— Party indicted for 
 felonirusly cutting, &c., may be convict- 
 ed of unlawfully cutting, &c xxix 
 
 cap. 100, §§9.11.— Partyindict- 
 
 ed for felony or misdemeanor may be 
 convicted of attempt, &c xxix 
 
 Sect. 12.— Indictment for misdemeanor, of- 
 fense proved, felony xxix 
 
 Sect. 13.— Indictment for embezzlement, 
 offense proved, felony or vic&verm xxix 
 
 Sect. 14.— Joint receiving {post. VdI. II, 
 Chap. 1, Sect. l,_pp. 25(i.57: W/'fl. p. 831), xxx 
 
 Sect. 10.~(7 Wm. IV. and 1 Vict. c. 85, § 11, 
 repealed). Felonies including assault 
 
 {posi,Yo}.lL p.oS^etseq.) xxx 
 
 cap. 19, §9.— Previous convic- 
 tion (£;?/m, p. 765) xxxi 
 
 [The recent statutes of New York and of seven.l 
 otlier states, will be found in the third volume.] 
 
 chapter I. 
 
 OP THE PEOVINCE OF TITE JUDGE TO DECIDE UPON THE ADMISSIBILITY OP 
 evidence; and of the several causes OF INCOMPETENCY. 
 
 Limifationof snch aami89ibilit7 3 
 
 The judge to decide on the admiasibility 3 
 
 Conditions peeedent to admissibility 4 
 
 Where there is the samu question for the Judge 
 
 and the jury ...' 6 
 
 Exclusion of certain evidence 6 
 
 Foundation of the rule of the incompetency of 
 
 witnesses t 
 
 Grounds of incomnetency.. 7 
 
 1. Defect of understanaing 7 
 
 3. Defect of religious principle i 7 
 
 Interest in matter m issue, either as party 
 * to the action, or as person in whose imme- 
 diate behalf action is brought or defended, 
 no longer a ground of incompetency (In- 
 
 trod. Chap, xix, and Vol. iil.) 
 
CONTENTS . 
 
 CHAPTER n. 
 
 OF INCOMPETENCY EKOM DEFECT OF UNDERSTANDING. 
 
 Natural deficiency— Idiota— Lunatics, &c 9 
 
 Children 9 
 
 Religious inetrnction : 11 
 
 Postponement of trial for instruction of child— 
 
 Indiscretion of the judge 12 
 
 Account given by child, not on oath, inadmissi- 
 ble 13 
 
 Effect of child s evidence 13 
 
 Preliminary inquiry as to competency 13 
 
 CHAPTER III. 
 
 OF INCOMPETENCY FROM DEFECT OF RELIGIOUS PRINCIPLE. 
 
 Witness must be sworn 14 
 
 Ancient practice as to prisoners' witness 15 
 
 As to evidence of children 15 
 
 Import of the oatli 15 
 
 Form of the oath— Not material if binding on 
 
 the conscience— Various forms 17 
 
 What religious belief necessary 19 
 
 Examination as to religious belief 2^ 
 
 Affirmation in lieu @f oath 2^ 
 
 Quakers, Moravians, Separatists, 21, 22 
 
 Persons vi^ho have been Quakers or Mora- 
 vians 22 
 
 Persons holding tenets of Quakers 22 
 
 Incompetency from crime 22 
 
 CHAPTER IV. 
 
 OP THE OLD KULE OF INCOMPETENCY BY EEASON OF INTEEEST. 
 
 Ko longer an objection in any case (14 & 15 Vict. 
 
 c.99) nntrod. Chap.) 
 
 Lord Denman's Act (6 & 7 Vict. c. 85) 2B 
 
 SECTION I.— The old Ritle of Inoompetenot 
 OF Parties istdividdallt named in the Ee- 
 ooKD IN Civil Proceedings 29-35 
 
 This rule abolished by 14 & 15 Vict. c. 99, (Int. Chap) 
 
 Parties to all civil proceedings now competent 
 andjcompellable to give evidence Id. 
 
 Except in proceedings instituted in consequence 
 ofadultery Id. 
 
 And in an action for breach of promise of mar- 
 riage Id. 
 
 Statements by party to suit, not evidence for 
 him 37 
 
 Statements showing animus of a party admis- 
 sible 37 
 
 Eemarks upon this rule 37 
 
 Members of corporations 38 
 
 Effect of judgment by default 45 
 
 Separate verdict 51 
 
 SECTION n. — Of the Eule of Incompbtbnct 
 
 CONSIDERED WITH REFERENCE TO PARTIES 
 PROSECUTING FOR OFFfeNSES, AND TO DEFEN- 
 DANTS IN Criminal Proceedinqs 58 
 
 General rule 63 
 
 Prosecutor competent 59 
 
 Eule unaffected by 14 & 15 Vict. c. 99 (Int. Ch. xviii.) 
 
 Exception formerly in cases of forgery 59 
 
 Eendered competent by 9 Geo. IV, c. 32 60 
 
 Prosecutor formerly incompetent from interest, GO 
 In prosecution for forcible entry, under 8 Hen. 
 
 VI, c. 9; 21Jac. I, c. 25 60 
 
 Informer entitled to penalty 60 
 
 Prosecutor competent in prosecution for rob- 
 bery, though entitled to restitution of pro- 
 perty 60 
 
 Or in prosecution for fraudulent gaming 
 
 under 9 Ann. c. 14 61 
 
 Or for reducing artillcers under 23 Geo. Ill, 
 
 C.13 61 
 
 Informer held competent where fine or im- 
 prisonment of the defendant was discretion- 
 ary, as having no direct interest 02 
 
 Prosecutors in cases of forcible entry and com- 
 mon informer, seem renderea competent by 
 
 Lord Denman's Act 63 
 
 But informer, havine direct pecuniary in- 
 terest, appears still incompetent in sum- 
 mary proceedings before justices (11 & 12 
 
 Vict.c. 4.3) 63 
 
 Competent Within metropolllan police dis- 
 trict, as magistrates there have power to 
 
 deprive him of penalty . 63, n. 
 
 And, semblo now competent, in any case, 
 under 14 & 15 Vict. c.99.. .. (Introd. Chap.) 
 Defendant in criminal prosecution generally in- 
 competent 63 
 
 Not made competent or compellable to give 
 evidence by 14 & 15 Vict. e. 99. ..(Introd. Chap.) 
 
 How rendered competent 64 
 
 By nolle jyi'osequi 64 
 
 By plea in abatement, and judgment for 
 
 want of replication 64 
 
 By separate verdict 64 
 
 By judgment by default 65 
 
 By plea of guilty 65 
 
 Except, perhaps, where parties are in- 
 dicted for a joint offense 65, 66 
 
 SECTION III.— Of the old Edle of Incom- 
 petency OF Persons in whose behalf an 
 Action was eroiight or defended 66-76 
 
 Such persons now rendered competent and 
 compellable to give evidence by the 14 ife 15 
 Vict. c. 99 (Introd Chap., and Vol. iii.) 
 
 SECTION IV.— Of the Eitle considered 
 
 WITH RRFERENCE TO THE HUSBAND OR WiPE 
 
 OF AN Incompetent Party 77 
 
 General rule formerly 77 
 
 Husband and wife not competent for and against 
 
 each other «....• 77 
 
 Eeasons for the rule 78 
 
 The rule appliedin case of divorce: orof death, 78 
 The rule not confined in confidential communi- 
 cations ,^ 79 
 
 Surviving husband, when competent 79 
 
 Whether the rule might be waived by consent . . 80 
 The rule applied to declarations of the husband 
 
 or wife 80 
 
 The same rule as to letters 81 
 
 The rule did not apply to parties not married, 
 
 but merely cohabiting SI 
 
 The rule applied where the marriage was after 
 
 the service of subpoena 83 
 
 1. Husband and wife not competent against 
 
 each other 83 
 
 (a) In civil cases '...'.'.'. 83 
 
 Whether now made competent and compel- 
 lable to give evidence in civil cases by 14 
 
 & 15 Vict, c, 99 (Introd. Chap, xix.) 
 
 Not expressly enacted that they shall be. .. Id. 
 Clearly not in proceedings instituted in 
 
 consequence of adultery Id. 
 
 (6) In criminal cases ', 34 
 
 Still remain incompetent under 14 & is 
 
 Vict. c. 99 (Introd. Chap, xxi.) 
 
 In collateral proceedings competent to con- 
 tradict each other 34 
 
 Though the evidence may tend to subject 
 the other to a demand, or even to crimi- 
 nate p4 
 
 Examples 84, 85 
 
 Neither party is compellable, however, to 
 
 criminate the other gg 
 
 Examples of evidence subjecting to demand 86 
 Neither, competent to prove non-ivccess. . . . 87 
 
CONTENTS. 
 
 XXI 
 
 2. Huebaud and wifa competent for each other 87 
 
 In civil cases ft 88 
 
 Whettier rendered competent by 14 & 15 
 
 Vict. ch. 99 Introd. Chap, xix 
 
 In criminal cases .*; 00 
 
 Wife of one prisoner not Competent for 
 anotber—Except where husband is not 
 
 npon trial 90 
 
 Examples 90, 91 
 
 Rule in equity 91 
 
 Rule as to letters '. 91 
 
 In action for criminal conversation 91 
 
 Letters to the defendant 91 
 
 Confessions of the wife 93 
 
 Conversations 9S 
 
 Letters to the husband 92 
 
 Admissions of the wife, acting as agent for 
 
 husband, admissible 92 
 
 Reason for the exception 93 
 
 The Wife's agency must be shown with ref- 
 erence to the transaction, as to which the 
 
 admission is made 93 
 
 Exceptions to the general rule relative to the 
 incompetency of husband or wife in crim- 
 inal cases 94 
 
 In cases of personal injuries 94 
 
 Rape— Unnatural offense 94 
 
 Battery— shooting at 94 
 
 Either may exhibit articles of the peace 
 against the other 94 
 
 Affidavit of person charged 94, 95 
 
 Dying declarations 95 
 
 Examination of bankrupt's wife by stat- 
 ute 95 
 
 Competency, in an appeal against an order 
 of bastardy, to prove criminal connec- 
 tion ^. 95 
 
 Competency to disprove marriage on an ap- 
 peal against order of removal 95, 96 
 
 In proceedings against husband under Va- 
 grant Act, for deserting or neglecting to 
 sunport family 96 
 
 In prosecution for bigamy, first wife not 
 
 admisr-ihle 96 
 
 Second, not being legal wife,. is admis- 
 sible 96 
 
 In ijrosecution for abduction, woman ad- 
 missible, though married 96 
 
 Exception not applicable to case of conspi- 
 racy 97 
 
 CHAPTER V. 
 
 OF THE TIME OP OBJECTING TO THE ADMISSIBILITY OP A WITNESS. 
 
 Ancient practice as to time when objection to 
 
 be taken 97 
 
 Misdescription of witness in treason 97 
 
 Witness examined on voir dire before being 
 
 sworn 97 
 
 Modern practice 99 
 
 Objection may be raised after witness has 
 
 been examined 99 
 
 Rule in equity 99 
 
 Formal examination on voir dire not necessary, 99 
 
 *: Witness caunot be recalled to raise objection, 102 
 
 Result of authorities 102 
 
 Where objection known to adverse party it 
 
 should be taken at once ^ 102 
 
 Objection may he proved by independent evi- 
 dence 103 
 
 Modeof proving incompetency 103 
 
 Witness on voir dire may be examined as to , ' 
 
 contents of document not produced 103 
 
 Objection how removed 103, 104 
 
 Rule when proof is independent of examination 
 of witness 104 
 
 CHAPTER VI. 
 
 OF THE COMPETENCY OF ACCOMPLICES, INFORMERS, 
 
 WITNESSES. 
 
 AND SELF-DISCREDITING 
 
 SECTION I.— Or the Compbten ct op Accom- 
 plices, . . , 105 
 
 General rule 105, 106 
 
 Accomplices competent witnesses 105 
 
 Oharnock's Case 106 
 
 Qbjectof admitting accomplices 107 
 
 Express or implied promise of pafdon— Equita- 
 ble claim to pardon 107 
 
 Application to court to admit accomplice 108 
 
 Accomplice, jointly indicted IfjS 
 
 Separate verdict 108 
 
 Accomplice, breaking faith may be tried 108 
 
 Principal and accessory 109 
 
 Accomplice admissible for prisoner 109 
 
 Separate verdict 109 
 
 SECTION n.— Op the CoNirip.MATioN of Ac- 
 complices 110 
 
 Rule of law 110 
 
 Practice Ill 
 
 Conftrmation general y required Ill 
 
 In misdemeanors 112 
 
 Discretion of judge, how exercised 113 
 
 Principals in second degree 113 
 
 When several accomplices 113 
 
 Evidence of accomplice's wife in confirma- 
 tion 114 
 
 Extent of confirmation necessary 1 14 
 
 Confirmation as to individual prisoner 114, 115 
 
 Confirmation not necessary as to all the prison- 
 ers— R. V. Jones, York Trials 115 
 
 R. V. Dawber ; R. v. Birkett ; H. v. Hastings, 115 
 Corroboration as to prisoner required — R. v. 
 
 , Addis; R. v. Wilke*. 116 
 
 R. v. Farler ,. . . 117 
 
 Result of aut'aorities '. 117 
 
 SECTION ni.- Op the Evidence op iNPouMr 
 
 ER3 AND SELP-DlSOKEDITINff WITNESSES 118 
 
 1. Informers lis 
 
 2. Witness alleijing his own dishonesty 118 
 
 Witness invalidating a written instrument- 
 Walton V. Shelley ; Jordalne v. Lashbrooke, 
 
 119-123 
 
 Person bribed at election 13S 129 
 
 . Attesting witness impeaching execution of 
 
 dee-i 129 
 
 Other instances 129 
 
 CHAPTER VII. 
 
 OP THE EXCLUSION OF EVIDENCE, WHERE THE DISCLOSURE WOULD BE IN 
 VIOLATION OF PROFESSIONAL CONFIDENCE, OR PREJUDICIAL TO PUBLIC 
 INTEREST. 
 
 SECTION I.— Where the Disolosuhe would 
 BE IN Violation op Professional Conpi- 
 
 DENOE 130 
 
 Geoeralrnle 130-184 
 
 Reasons for the rule 134 
 
 Privilege is that of clientT-May be waived by 
 
 To whom it extends 135 
 
 Counsel— Attorney— Solicitor 135 
 
 Interpreter or agent— Clerk to attorney or 
 counsel— Personal representative of profes- 
 sional adviser 135 igfj 
 
 Attorney not employed as such 135 
 
 him 134 -i Medical advisers and&ieads not within the rnle, 136 
 
rsu 
 
 CONTENTS. 
 
 Banker— Steward 137 
 
 Olerffyman— Popish priest 138 
 
 Clerk to commissioners— oath of office 139 
 
 Articled clerk to attorney 139 
 
 Conveyancer ; 139 
 
 When privilege commences 139 
 
 Confidence before commencement of suit 140 
 
 Communicationrt collateral to suit 141 
 
 When the confidence is at an end 141 
 
 Communications not of a professional character 141 
 Confidence not confiU' d to cases where a suit is 
 
 in contemplation 141 
 
 Extends to all tasei* of professional commu- 
 nication 142 
 
 ■ Form in which communication is made 144 
 
 Communications respectingr estates— Instruc- 
 tions for deed— Communication respecting 
 
 power of leasing 144 
 
 Possession of deed by client 144 
 
 Production of documents or disclosure of con- 
 tents . . . . ; 145 
 
 W ill— Document read at suggestion of coun- 
 sel 145 
 
 Contents may he stated with consent of 
 
 client ua 
 
 Rule in Equity and Ecclesiastical Courts 14(3 
 
 ^V'here communication received from third 
 
 party \ 140 
 
 Cony obtained from attorney 14(), 147 
 
 Lloyd V. Mostyn 148 
 
 P.'ivik'ge continues after confidence has ceased 14S 
 
 Kule ill criminal prosecutitms 148 
 
 Forged note intrusted to attorney for purpose 
 
 of suit; R. V. Smith; R. v. Avery 149, 150 
 
 Remarks upon, lliese cases 150 
 
 Forced will plactd with other papers in hands 
 
 of attorney— R. v. Hayward 150 
 
 Remarks upon that case 151 
 
 For<<ed will placed with attorney to borrow 
 
 money upon— R. v. Farley 151 
 
 Remarks Uf)on that case 151 
 
 Forj^ed will intrusted with attorney for pur- 
 poses of suit— R. v. Tilney : K. v. Hawkins, 
 
 151 152 
 
 Where attorney acts for two parties 152 
 
 A tnrney of one not a party 153 
 
 P jducti(m of title deeds 154 
 
 I i<pection of papers by court 154 
 
 B ukruptcy proceedings 154 
 
 A fiirney's privilei;e co-estensive with that of 
 
 client- Title deeds— Deed of composition— 
 
 Lea-e— Copy of deed given by party to suit to 
 
 a third party 154, 155 
 
 Ca^e for the oiiinion of counsel 155 
 
 Other communications 155 
 
 Stamped diipl'cate of agreement— Letleis... 155 
 Right of counsel 10 argue question 150 
 
 New trial, when granted for improper admis- 
 sion or rejection of such evidence— Marston 
 
 V. Downes ; Doe d. Peter v, Watkins 156 
 
 Couimuni cations not privileged, under what cir- 
 cumstances i 156 
 
 Where attorney is examined as to collateral 
 
 facts, not in confidence 156 
 
 Swearing client in chancery 157 
 
 Usurious consideration for bond 157 
 
 May prove who is party to suit— Identity of 
 party— His client's handwriting^His own 
 
 possession of a dttcument ; 157 
 
 How attornev's knowledge obtained 158 
 
 Information from subscribing witness to will, 158 
 
 Letters writ ten by testator 158 
 
 Privilege extends to all knowledge obtained 
 
 proCeSBionally 158, 159 
 
 State of document m possession of client. . 159 
 Communications to or from strangers or oppo- 
 site party 159 
 
 Proposal of compromise 159 
 
 Communication of client to obtain informa- 
 tion as to facts, not privileged— Brarawell v. 
 Lucas 159, 160 
 
 SECTION II.— Op the Exclusion of Evidence, 
 
 WHEBE TPIE DISCLOSUKE WOULD BE PREJUUl- 
 
 ciAL TO Public Interests IfiO 
 
 Information given fo government Kil 
 
 From spies- From a^ ent of police 161 
 
 Party advising disclosure 163 
 
 Result of cases 163 
 
 Informer in Exchequer cases 163 
 
 Information where government not concerned 
 
 — R. v Blackman 163 
 
 Accuracy of tovernmeut plan 164 
 
 Official communications 164 
 
 Rule does not apply to acts? done in consequence 
 
 of such communications 165 
 
 Or to private commnnicaiicns to official per- 
 sons 165 
 
 Proceedings in Parliament— Plunkett v. Cob- m 
 
 bett 165' 
 
 Rule applies to judge— Arbitrator— Counsel- 
 Attorney acting as advocato in inferior court, 
 
 165. 166 
 
 To grand juryman Kifi 
 
 But he may start; who appeared as prosecutor, 166 
 Whether witness may be questioned as to his 
 
 evidence before grand jury .' 167 
 
 Affidavit of grand juryman reftised 167 
 
 Not permitted to explain indorsement on in- 
 dictment 167 
 
 Affidavit of petty juryman, or of stranger as to 
 
 their conduct, not permitted 163 
 
 Evidence objectionable a^ being indect-nt 16S 
 
 Evidence of husband or wife as to non-access . . 16S 
 
 CHAPTER VIII. 
 
 GBXERAL EULE^ RELATING TO THE EXCLUSION OP IIEAESAY EVIDENCE. 
 
 SECTION I. -Of the Distinction between 
 
 Op.IQINAL AND llE^ARSAY KVIDENCE TOO 
 
 Defluitum of hearsay I(i9 
 
 Ganeral rule as to non-ad iniasibility IfiU 
 
 Letr.erc* a^ proof of iuformatiou given or re- 
 ceived 170 
 
 Reading part of writing 170 
 
 ■Writing's a J proof of c.niateral facts 171 
 
 Leffors of def<i;)d nt admissible to Hhow bona 
 
 fldet 171 
 
 Ljtters fjiind in possession of a person whose 
 sanity is in question— Wriglit v. Doe d. 
 
 Tathatn 171, 172 
 
 Denial of tradesmin bv servant or direction to 
 
 djiiy. admissible 172 
 
 Fajt ofa communication iiaviug been made ad- 
 missible 172 
 
 0.1 q'i3*tion ot reputed ownership, general opiu- . 
 
 ion of uoIgiib;irs iiduiisslbie 173 
 
 Public rumor, or ganer.ii cliaracter— Poiilices v. 
 
 S.lway ISO 
 
 General opinion IH) 
 
 Intention of testator 180 
 
 Jiixoreasioaa used evidence of foeilnga, conduct, 
 
 &c 181 
 
 Eximpius. in action for crim. con 181 
 
 Lattersof wife 181 
 
 Proof of time when letters were written 181, 182 
 
 Expressions of patient as to state of health 182 
 
 Statemeuts fo medical attendant 1,^3 
 
 Statemunts to stfaujjers 1S3 
 
 St:itemeiits as to past symptoms— Aveson v 
 
 Kinuaird ia3, 184 
 
 Evidence of medical man— Gardiner Peerage, llvl 
 
 Recent complaint in robbery 184 
 
 In rape '.' , . i 4 
 
 In other cases of injury— Thompson v. Tre- 
 
 vanion; R. v. Foster 154 
 
 Declarations part of res gestm 1 85 
 
 As proof ot credit given isc, 
 
 Letter inclosing promissory note ]S(i 
 
 or wife when eloping n,7 
 
 At time of dishonor of bill— Perkins v 
 
 Vanghan , 1 j^ 
 
 In executing fraudulent conveyance 1S7, ISH 
 
 What are ren q^stoi 1, s, 203 
 
 In questions of banltrnptcy ' ',' ' 202 
 
 Es-planatory of acts done 2112 
 
 Time of malting declaration mater al 203 
 
 Rnuchv, Great Western Railway Company; 
 
 Bateman v. Bailey; Ridley v, Gyde S04 
 
 Rawson V. Haigh gug 
 
 Declarations of conspirators, when evidence 
 
 against co-conspirators S05 
 
 R. V. Stone; R. v. llardv ' guij 
 
 R. V. Tooke 307 
 
CONTENTS. 
 
 XXUl 
 
 Eolatlne to common object— Tl. v. lord George 
 Gomon : It. V. Vincent 207, 208 
 
 When uot part of ren ge4(B — K. v. Hardy. . . . 208 
 Writings in possession of conspirators before 
 
 or after apprelienaion— 1{. v. \A'atsou 209 
 
 Declarat'Qns of rioters— R. v. Blalve 209 
 
 Common design — It. v. Hardwicke 211 
 
 SHCTIONII.— Of the Edlb kespectins the 
 
 Exclusion OF Hearsay 211 
 
 Principle of tlie rule 211 
 
 History Of ttie rule 212 
 
 Practice in tlie old State Trials— sir W. Ra- 
 
 leifili's Case; Sir R. 'I'hrogmurton's Case; 
 
 Case of the Popisti plot 213 
 
 Extent of the rule 213 
 
 Kule in Scotland .' 214 n. 
 
 On recu ving affidavits in banc 214 n. 
 
 Declaration of attesting witness — Stobart v. 
 
 Dryden 214 
 
 SECTION III.— Exception to the Rule as to 
 
 JlEAKSAr IN MATTEBS OP PUBLIC OR GENERAL 
 
 Interest 217 
 
 Definition of yjuWic matters '217 
 
 1. Examples of matters of public andgeneial 
 
 interest 218-227 
 
 Reputation as to genera' rights 218 
 
 Eight of Common— Weeks V. Sparlie.,.. 227,228 
 
 District modus— Kudd v. Wright 228 
 
 Farm modus 228 
 
 Hearsay as to private prescriptive rights, 
 whether admissible— Morcwood V.Wood.. 220 
 Not admissible as tit private boundaries.. . . 230 
 Except where public and private bound- 
 aries identical — Thomas v. Jenlcins 
 
 230. 231 
 
 Not admissible as to private title 231 
 
 Or private rights 231 
 
 Or of custom as to performance of pub- 
 lic duty— E. V. Antrobus 231, 232 
 
 Or as to presentation— Meath (Bp.) v. 
 
 Belfleld (Lord) 232 
 
 Liabilitv of occupiers to repair road— li 
 
 V. VVavertree ". 232 
 
 Inadmissible as to particular payment of 
 
 a sum as modus 233 
 
 Admissible as to customary payment 233 
 
 Lands given in lieu of tithes 233 
 
 Site of houses 233 
 
 Eatries concerning repair of pews 233 
 
 Containing names of surveyors 234 
 
 Planting tree as boundary 234 
 
 Ripairs to ro.\d 234 
 
 Perambnlatioas 234 
 
 Entries of 235 
 
 2. Of the forms in which hearsay is presented.. 235 
 Old documents- Leases — Composition deeds, 235 
 
 Manorial documents 235 
 
 Maps 23H 
 
 Verdicts. &c--^Reed v. Jackson 237 
 
 Effect of verdicts 237, 238 
 
 Judgment by default, not followed up by exe- 
 cution 238 
 
 Finding of juries under commission, not fol- 
 lowed by decree — Brisco V. Lomax 238 
 
 Judgment on quo warranto , 2-38 
 
 DecL'ces as to customary right. 239 
 
 Decrees and orders of commissioners of 
 
 sewers 230 
 
 Inte.-locutory orders 239 
 
 Order bw Duchy Court of Lancaster— Pirn v. 
 
 Currell 2;M 
 
 Awards 239 
 
 Judgment of tribunal acting without author- 
 ity 239 
 
 Decree on question of jurlsdiation 239 
 
 3. Ot qualincations in receiving hearsay 240 
 
 Caution necessary 340 
 
 Competent knowledge in declarnnt 240 
 
 Distinction between pablicandgeneral rights 241 
 Decree of persons having no peculiar kuowl- 
 
 ejje— Rogers v. Wood 341 
 
 Persons resident in neighborhood 241 
 
 Justices of peace at county sessions 212 
 
 Oa question of boundary, modus, Ac, decla- 
 rations of persons interested admisBlble— 
 
 Crease v. Barrett 242 
 
 Hearsay inadmissible in questions private 
 
 rights 242 
 
 E-ght to wreck— Talbot v. Lewis 343 
 
 Position of parties presumfd to boas stated 
 in ancient documents— Freeman v. Phil- 
 
 lipps 243 
 
 Proof of modem exercise of right 244 
 
 Where acts of enjoyment not required 244 
 
 Opinions not founded on statements of others 245 
 
 Lis mota. rule witii reference to 245 
 
 Lis raota defined 245 
 
 Award— R. v. Cotton ; Evans v. lieea 240 
 
 Presentment by homage 247 
 
 Ancient procei dings, where. the controversy 
 
 different — Freeman v, Pliillipps 247 
 
 Order of Maiiistrates- Newcastle (Duke) v. 
 Broxtowe (Hundred) 247 
 
 SECTION IV.— Exception to the general 
 RULE AS TO Hearsay in questions of Pedi- 
 gbee 248 
 
 Reasons for the admission of hearsay in pedi- 
 gree cases 248 
 
 1. What are matters of pedigree 260 
 
 General kindred 2.50 
 
 Time of birth— Priority of birth 260, 281 
 
 Hearsay rejected where suit does not relate to 
 
 pedigree 252 
 
 Not admissible as to placi- of birth ^62 
 
 Admissible where persons identified with 
 
 particular locality 263 
 
 On questions of setliement 254 
 
 Noi' access 2.54 
 
 2. Various foi ms of hearsay 255 
 
 Entries jn family books, Bible.j. &c.. inscrip- 
 tions, &c 255 
 
 Family correspondence 25li 
 
 Recitals in family deeds 25ti 
 
 In other deeds, not being family documents 257 
 
 Descriptions in wills £58 
 
 Probate— Ledger book £53 
 
 Bills, &c., in Chancery — Banbury Peerage 
 
 Case 2.53 
 
 General rule as recital of fact s SCO 
 
 Engravings on rings ; charts of pedigree, Ac, 2(^0 
 Compilation from registers, &c.— Davies dem. 
 
 Lowndes ten 2f)0 
 
 Place where pedigree found ; Sli3 
 
 Inscription on tombstones.; coffin-plates, &c. Sti3 
 
 Monument in Dissenters' burial ground S(i3 
 
 Foreign monument 205 
 
 Monuments decayed, &c 205 
 
 Credit due to monumental inscriptions 205 
 
 Mistakes on tombstones 205 
 
 Armorial bearings 2(iO 
 
 Heralds' books— Achievement — Chandos Peer- 
 age 2()6 
 
 Valtie of such evidence ^ . . 260 
 
 Armorial shield ; carriage arms 2H7 
 
 Conduct or treatment in family 207 
 
 Declaration upon declaration 2t)8 
 
 Inqnisitions post mortem 269 
 
 3. Of the qualifications with which hearsay is 
 
 received 269 
 
 Knowledge of the declarant 269 
 
 Eelatives 269, 270 
 
 Persons connected with the family 270 
 
 Servants, friends, &c.— Johnson v. Lawson . . 270 
 Limitation of the rnle to persons connected 
 
 with the family by blood or affinity 271 
 
 Principle of the limitation 271 
 
 Declaration of husband as to pedigree of wife, 271 
 
 Limitation of rule in cases oi^afflnity 272 
 
 Illegitimate member of family 272 
 
 Declaration of midwife; of godmother 273 
 
 D aration of clergyman as to marriage— Sus- 
 sex Peerage Case ; Berkeley Peerage Case, 273 
 Special verdict— Neal dem. Athol (Duke) v. 
 
 Wilding 274 
 
 Belationship of declarant to be proved aliunde 
 
 —Banbury Peerage ; Leigh Peerage 275 
 
 In ancient pedigrees 275 
 
 Hearsay need nor be cotemporaneons 37(i 
 
 Declarations post litem motam, not evidence 
 
 —Berkeley Heerage Case 276 
 
 Knowledge of lis mota by declarant 279 
 
 Statement in contemplation of litigation. .. 279 
 
 Made for preventing disputes 279 
 
 Declarations of persons In pari jure 280 
 
 SECTION v.— Exceptions to the General 
 EuLE AS TO Hearsay, with reference to 
 Ancient Possession 281 
 
 Ancient documents, evidence of poBseselon , , , . S81 
 
XXIV 
 
 CONTENTS . 
 
 Oldleases— Licenses— Eent-rolls—Conrt-iollB; 
 
 281, 282 
 Ancient documents whether evidence of boun- 
 dary—Lord Pomfret v. Smith 282 
 
 Maps 282 
 
 Conditions of ndmissibility of such evidence. .. 283 
 
 Proof of acts done respecting documents 283 
 
 Except where . ancient— Clarkson v. Wood- 
 house : Rogers v. Allen ; Bedford (Duke) v. 
 Lopez: Doed. Egremont(Eiirl) v. Pulman.. 283 
 
 Possession under lease 283,284 
 
 Confirmatory proof by payment, &c., when nec- 
 essary 284 
 
 Custody of documents 285 
 
 SECTION VI.— ExcEPTioHS to the General 
 BnLE AS TO Hearsay, in the case of Dy- 
 ing Declarations 285 
 
 Dying declarations, when evidence 285 
 
 LimitationB of admissibility 285 
 
 Declarat on by subscribing witness 285 
 
 In ejectment ; settlement cases 286 
 
 Limitation of the rule in criminal cases 287 
 
 In prosecutions for administering drugs, to pro- 
 cure abortion— Robbery-Perjury 287 
 
 Murder 287 
 
 Declarations favorable to the prisoner 287 
 
 Belief in future state implied 287 
 
 ^Declaration of attainted convict, formerly not 
 
 evidence 288 
 
 Declaration of accomplice— R. v. Baker 288 
 
 Preliminary inquiry as to the state of the person, 
 
 289, 293 
 Prospect of impending death — Woodcock's 
 Case; John's Case; E. v. Bonner; R. v. Spils- 
 
 bury 292 
 
 Interval before death— E. v. Van Butcbell ; R. 
 
 v. Bonner 293 
 
 Expressions of deceased— R. v. Crockett ; E. v. 
 
 Eagent ; E. V. Brrington 293 
 
 Representations to deceased— R. v. Welbom ; E. 
 
 V. Christie ; E. v. Mosely ; E. v. Hay ward 294 
 
 Form of declaration 295 
 
 In answer to questions 295, 29H 
 
 Declarations reduced to writing- E. v. Eeason, 296 
 
 Signed by deceased 296 
 
 Must be only aa to facts 297 
 
 Admissibility of, a. question of law 297 
 
 Effect of S93, 299 
 
 SECTION VII.— Exception to the General 
 Edlb as to Heaksat, where Declarations 
 
 HAVE been made BT PERSONS, SINCE DE- 
 CEASED, aqainst their Interest, 300 
 
 General rule 300 
 
 Principle of admission 300, 304 
 
 Verbal declarations 304 
 
 Declarant must be deceased 304 
 
 Means of knowledge in declarant 305 
 
 Amount of interest 305 
 
 Proof of interest 305 
 
 Entries as to receipt of money— Steward's 
 
 books 306 
 
 Entries in private books 307 
 
 Entry charging the maker 307, 310 
 
 Custody ofbooks 310 
 
 Eate books 310 
 
 Declarations as to right to property 311 
 
 Declarations by occupiers 311 
 
 General rule 312 
 
 Barker v.Eay 312 
 
 Particulars of estate recognized by tenant for 
 
 life 812 
 
 Life interest 313 
 
 Proof of bcoupation 313 
 
 Occupation or possession determined — ^Ivat v. 
 
 Finch 313, 814 
 
 American cases 814-333 
 
 Declarations of persons alive— Walker v. Broad- 
 stock 333 
 
 Form in which declarations may be made- 
 Knowledge uf declarant 333, 334 
 
 Declaration tendiog to incumber estate 334 
 
 Balance of interest— Entry by one under whom 
 
 title is derived— Outram V. Morewood... 334, 335 
 Debtor and creditor account— Clark v. Wilmot, 335 
 
 Entries by executor 336 
 
 By proctor i 336 
 
 Clerical books— Eector's-Vicar's 336, 337 
 
 Collectors of tithes 338 
 
 finpioprlator'a books 338 
 
 Entries against interest need not be contempo- 
 raneous with facts 
 
 Evidence of facts therein stated, immediately 
 
 connected 
 
 Examples- Warren v. Greenville; Stead v. 
 
 Heaton ; Barry v. Bebbington * — 
 
 Higham v. Ridgway : Doe d. Eeece v. Rob- 
 son 
 
 Shipwith V. Shirley; Marks v. Lahee; Da- 
 
 vies V. Humphreys 
 
 Doe d. Galloj) v. Vowles ; Doe d. Haden v. 
 
 Burton 
 
 Whether entry evidence of collateral facts- 
 Chambers V. Bernasconi 
 
 Budd V Wright; Knight v. Waterford 
 
 (Marquis) 
 
 Made by one who would not have been com- 
 petent as a witness 
 
 See Introd. Chap. 
 Where other proof may be had— Middleton v. 
 
 Melton 
 
 Proof of declarant's situation, aliunde- except 
 when he acts in a public character — Short v. 
 
 Lee; Doed. Webber v. Thynne 
 
 Entries need not show for whom moneys were 
 
 received 
 
 Handwriting or signature of entries 
 
 Entries by agent— Proof of agency— De Eutzeu 
 
 V. Farr 
 
 Proof of handwriting dispensed with 
 
 339 
 340 
 311 
 342 
 342 
 343 
 S44 
 
 345 
 
 346 
 
 347 
 343 
 
 SECTION Vin.— Exception to the General 
 Exile as to Hearsay, in cases where Dec- 
 larations OR Entries have been made in 
 
 THE COURSE OF OFFICE OR BUSINESS 347 
 
 Principle of admissibility 347 
 
 Earlier cases on this subject— Price v. Torring- 
 ton (Lord) : Pitman v. Maddox ; Smartle v. 
 Williams ; Evans v. Lake ; Pritt v. Fairclongh; 
 Hagedorn v. Eeid ; Champneys v. Feck ; Dig- 
 by V. Steadman 347-354 
 
 Later cases, which settle the rule — Doe d. Pat- 
 tershall v. Turford ; Poole v. Dicas ; Doe d. 
 
 Walsh V. Langfleld 354,335 
 
 Knowledge of racta necessary— Brian v. Preece ; 
 
 Dftvies V. Lord 356 
 
 Entries of independent matters not within the 
 
 rule— Chambers v. Bernasconi 357 
 
 Meaning of usual course of business- E. v. 
 
 Worth 360 
 
 Entry must be contemporaneous with act done, 
 Clerk V. Bedford ; Champneys v. Peck ; Fyke 
 
 V. Crouch 360 
 
 Corroboration, how far required 362 
 
 Entries admissible, though better evidence at- 
 tainable 863 
 
 Verbal declarations 363 
 
 Proof of declarant's situation, aliunde 363 
 
 Entries not evidence for parties in privity 364 
 
 Indorsements on bonds, as to payment of inter- 
 est— Searle V. Barrington (Lord).. 364 
 
 Indorsement on notes— Bosworth v. Cotchett.. 356 
 Lord Teuterden's act, 9 Geo. IV, c. 14, § 2— 
 
 Gleadow v. Atkin 866 
 
 3 & 4 Wm. IV, c. 43, §§ 3, 5 367 
 
 Proof of time when indorsement made— Smith 
 V. Battens ; Saunders v. Mereditli ; Eose v. 
 
 Bryant 369 
 
 Account signed by bankrupt 369 
 
 Shop books not evidence, in general— Stat. 7 
 
 Jac. 1, c. 12 370 
 
 (American rule as to proof of book accounts) 370-386 
 
 Entry must be by person since deceased 386 
 
 Writings must come fl:om proper custody.. .. 886 
 
 SECTION IX.— Exception to the General 
 Rule as to Hbarsay where Witnesses 
 
 SINCE deceased HAVE GIVEN EVIDENCE ON A 
 FORMER TRIAL 389 
 
 Principle of the exception 889, 400 
 
 How testimony may be proved 889-402 
 
 Extent of proof 401 
 
 Who are considered the same parties 401 
 
 Rule between privies 403 
 
 SECTION X.— ExoBPTiON To the General 
 EuLE AS TO Hearsay, in tBe case of Ad- 
 missions BY Parties to the Suit 402 
 
 Whether this exceptional rule is affected by the 
 admissibility of parties to give evidence un- 
 der the 14 & 15 Vict. c. 99 (Introd. Clup.) 
 
CONTENTS. 
 
 3CXV 
 
 Principle of the exception 402 
 
 1. Of admissions by a party to the suit, or by 
 one for whose beneht the suit i? brought. 406 
 Whole of the admission to be received.. 406-410 
 
 The same rule applies to writing 410 
 
 Answer in Chancery— Claim and counter 
 
 claim 410 
 
 Effect of, as evidence 411 
 
 Documents referred to 411 
 
 Interrogatories— Examination in bankruptcy, 413 
 
 Documents inclosed 413 
 
 Documents referred to, but not connected — 
 
 Long V. Champion 413 
 
 Limits to the general rule 414 
 
 Distinct writings— Series of letters copied 
 
 in a book 414 
 
 Proceedings in bankruptcy— entries In 
 
 corporationbooks 414 
 
 Conversations- The Queen's Case; Prince 
 
 V. Samo 414 
 
 Remarks upon the Queen's Case 415 
 
 Review of authorities 416 
 
 Correspondence by letters 416 
 
 Writ containing return « 417 
 
 - Other parts of judicial proceedings... 417 
 
 Effect of receiving the whole admission 417 
 
 Favorable parts of admi^Bion- Smith v. 
 
 Blandy ; Randle v. Blackburn 418, 419 
 
 Answer in chancery 420 
 
 Bill in chancery 420 
 
 Admission coutaining hearsay— Roe d. Pel- 
 
 latt V. Ferrars 420 
 
 Admissions as to contents of written instru- 
 ments 421 
 
 Copy of agreement— Gobs v. Quinton 421 
 
 Recital of writ— Bessey v. Windham 421 
 
 Verbal admissions, whether receivable as to 
 
 contenfs of written instrument 422 
 
 Authorities in favor of admiseibility:— Doe 
 d. Lowden V. Watson, assignment of lease; 
 Sewell V Stubbs. promissory note ; Earle 
 V. Picken, Newhall v. Holt, agreement; 
 Slatteriev. Pooley, written instrument di- 
 rectly in issue; Howard v. Smith, demise, 
 
 422,423 
 Authorities, against admissibility: Bloxam 
 
 v. Elsee; Lawless v. Queall 423,424 
 
 Remarks upon the authorities 424 
 
 Weight of such admissions 425 
 
 Written admissions 425 
 
 Dissolution of partnership 425 
 
 Admission of holding shares in company.. 425 
 
 Conveyance of land 425 
 
 Where admission will not dispense with call- 
 ing attesting wltnesss 425 
 
 Parol adnrissions contradicting documents... 436 
 
 Parol admissions, relatlng^to record 426 
 
 Admissions made without prejudice, or during 
 
 treaty 426-430 
 
 By whom made 430 
 
 Communications connected with admission, 430 
 
 Limits of rule 431 
 
 Admissions of collateral or indifferent facts 
 
 during treaty 431 
 
 Admiaaions on examinations 432 
 
 Receivable in civil cases 432 
 
 Evidence for strangers 433 
 
 Where not. for assignees of bankrupt 433 
 
 Indirect or implied admissions 433 
 
 Examples , 434 
 
 Of relation or character 434 
 
 Assumption of character 434 
 
 Time when acts were done 435 
 
 Recognition of character 435 
 
 Admission of professional qualification — 
 
 Smith V. Taylor 436 
 
 Where admission does not admit qualifica- 
 tion 436 
 
 Admissions by demeanor, &c 436-442 
 
 Effect of such evidence 437-442 
 
 Acquiescence as an admission 443 
 
 In criminal cases 443 
 
 Receipt of notice to quit, without objec- 
 tion 443 
 
 Contents must be shown to be known 443 
 
 Demeanor of bankrupt 443 
 
 Admission ftom forbearance 444 
 
 Knowledge of party acquiescing 444 
 
 Statement in letter 444 
 
 Account delivered and not objected to 445 
 
 Statement by third ptiraon , 445 
 
 Vol. I. 
 
 Where reply not expected 445 
 
 Party charged before magistrate 445 
 
 Eemarks hy magistrate 446 
 
 Statements hy persons preferring charge, to 
 
 show animus 446 
 
 Statements admissible, if party replies to 
 
 them 446 
 
 Entries in hooks accessible to party ■. . 446 
 
 Entries in manor rolls 448 
 
 Writings in possession of prisoner 448 
 
 Books of assignees 449 
 
 Indorsement on feoffment 44!) 
 
 Corporation books 449 
 
 •Docnment produced hy party— Affidavit— De- 
 position in bankruptcy 449 
 
 Party must he cognizant of contents— Depo- 
 sition in equity — Evidence at trial 450 
 
 Deposition before magistrate 450 
 
 Inscription of name on stage coach 450 
 
 Admission of debt to attorney, not admission 
 
 of delivery of bill 460 
 
 Admissions by treatment of subject 450, 461 
 
 Omission of debt in schedule of insolvent. . 451 
 Bill made out by tradesman to particular 
 
 person 451 
 
 Promise to pay bill of exchange, admission 
 
 of notice of dishonor 461 
 
 Eelief to panper,i;admission of settlement . . 451 
 
 Admiss on of nuisance in business 451 
 
 Admission of demand upon arrest 451 
 
 When tLe matter involves law as well as 
 
 fact 461,462 
 
 Discharge under Insolvent Act 453 
 
 Status of marriage 462 
 
 Admissions of marriage in prosecutions for 
 
 bigamy 453 
 
 Effect of admissions 463 
 
 As estoppels... ^ 453 
 
 Where acts have been done upon faith of 
 
 statements 463-4(i4 
 
 Abandonment of lease by bankrupt 4(j4 
 
 Acquiescence of proceedings in bankruptcy 
 
 or insolvency 464 
 
 By bankrupt— Watson v. Ware 464 
 
 By petitioning creditor 464 
 
 Admission of title in another 465 
 
 Accounting with a person in a particular 
 
 character 465 
 
 Other examples — 
 
 Women held out as married 46.) 
 
 Assumption of name. &c 466 
 
 Person holding himself out as partner 4(:6 
 
 Tenant cannot dispute landlord's title 46/ 
 
 What does not amount to admission of 
 
 title 463 
 
 Effect of acceptance of bill, &c , as an ad- 
 mission J 468 
 
 Agent, when hound by his account 469 
 
 Wharfinger acknowledaing title of bailor. . . 469 
 
 Admissions in criminal cases 469 
 
 Admissions (from conduct), generally not con- 
 clusive 469 
 
 In bankruptcy 470 
 
 Admission on oath 470 
 
 Admissions in answers in chancery 470 
 
 Omissions of debt in insolvent's schedule. . . 471 
 
 Admissions in deeds 471 
 
 Payment of consideration money 471 
 
 Wuere admissions in deeds operate as es- 
 toppels 472 
 
 Where not 473 
 
 In an action not upon deed 472 
 
 Matter of description or recital 473 
 
 Where contract has reference to recital. , . 473 
 
 Binding upon privies a'admission 473 
 
 Admissions in writing not under seal 474 
 
 Eeceipt 474 
 
 Adjustment on policy 478 
 
 Inventory in Ecclesiastical Court- Probate 
 
 stamp 478 
 
 Invoice 478 
 
 Attorney's bill delivered 478 
 
 Parish certificate 478 
 
 Bill in chancery 479 
 
 Verbal admissions 479 
 
 Admissions by strangers 479-433 
 
 Who a party within the rule 480 
 
 i^dmisBion by party suing for anothor'e bene- 
 
 ^ fit— Banerman v. Hadeniui 484 
 
 Aln^r V. George 484 
 
 Guardian or piodMis ami ^. ,. 4S4 
 
 4,t. 
 
XXVI 
 
 CONTENTS. 
 
 AdmiBsionB by persons beneficially interested 
 
 in suit 486 
 
 By cestui que trust 486 
 
 By person to whom money to be paid under 
 
 bond 486 
 
 By debtor, where money deposited with a 
 
 third party to pay creditor 486 
 
 By person entitled to deed 486 
 
 ■Interested in policy - 486 
 
 Infreight 486 i 
 
 By cognizor in replevin— llart v. Horn 486 
 
 By rated parishioners. . , , . 487 
 
 By party iudeninifying— Under-sheriif— 
 
 Bankrupt T 488 
 
 By person whose liability is in issue 488 
 
 By bankrupt, in action by assignees 489 
 
 ■ Not admissible, if made after bankruptcy, 489 
 By debtor, in favor of assignee of pro- 
 perty 489, 490 
 
 By petitioning creditor— Harwood v. Keys, 490 
 
 By party in different capacity . . . .' — 490 
 
 Persona afterwards chosen assignee — Fen- 
 wick V. Thornton: Smith v. Morgan, 
 
 490, 491 
 Admission by one party, evidence against 
 
 another, jointly intersected 491 
 
 Otherwise if not jointly interested 492 
 
 Eule in this country 401, 600 
 
 Answer by several defendants in chancery, 492 
 
 Wliere co-defendants jointly interested 492 
 
 Retired partner 492 
 
 In tort, admission by one defendant not evi- 
 dence against another 493 
 
 By partner, a party to the suit— Gray v. 
 
 Palmer 496, 496, 498 
 
 By partner, when not a party 498, 499 
 
 Statement as to transactions before partner- 
 ship .• :. 500 
 
 Not referring to partnership transaction, 500 
 Part paymen t by parties to negotiable instru- 
 ment — Whitcomb v. Whiting 501 
 
 Admission must relate to joint debt 502 
 
 ■i. Ot admissions under a j udge' s order 603 
 
 Notice to admit 503 
 
 Foreign documents : 503 
 
 Timeof notice ' 504 
 
 Effect of order as admission 504 
 
 Description of document — Counterpart of 
 
 lease 604 
 
 Execution of deed : 504 
 
 Auttiority of agent to accept bills — Wilkes 
 
 V. Hopkins 505 
 
 Order does not preclude objection to admis- 
 sibility 505 
 
 Variance between order and document 506 
 
 Inspection of document 506 
 
 Identitj; of document 506 
 
 Admission available on new trial 506 
 
 Effect of disobedience of order 506, 507 
 
 By whom order to be made 507 
 
 8. O f admissions by au agent of the party 507 
 
 Objections to this kinif of evidence 607 
 
 Generalrule 507 
 
 Declaration must be made in course of busi- 
 ness, in scope of the agent's authority^ 507-513 
 Where not so made, not evidence — Fairlie v. 
 
 Hastings , 513 
 
 Warranty of horse by servant 513, 614 
 
 . Letter of agent— Maester v. Abraham; 
 Kahl V. Janson ; Langhorn v. Allnut, 514, 515 
 
 Letter adopted by principal 516 
 
 Agent's authority 516 
 
 Attorney— Eeferee— Arbitrator ■. . . 516, 517 
 
 Miners' jury 517 
 
 Admissions of wife, not generally binding on 
 
 husband 517 
 
 Otherwise where he sues as her representa- 
 tive 518 
 
 Or where her authority can be inferred 518 
 
 Lord Tenterden's Act [9 Geo. IV, c. 14] . . 518 
 
 When authority interred 518 
 
 When not inferred 519 
 
 Interpreter employed as agent— Fabrigas v. 
 
 Mostyn 519 
 
 Admission of agent, in criminal cases 520 
 
 Instructions to agent 520 
 
 4. Ofadmissionsbyundor-sheriffs, bailiffs, attor- 
 neys, c unsel, &c 520 
 
 Admissions, not charging party making them, 52% 
 
 By under-sheriff or baulff. 520 
 
 Declarations accompanying official acts 521 
 
 By guardian °fi 
 
 By attorney °J* 
 
 Direct admissions o^ 
 
 Indirect admissions 52d 
 
 Extent oi admission 523 
 
 When made " without prejudice " 523 
 
 Proof Of being attorney 523, 524 
 
 Bv clerk to attorney 524 
 
 Admissions on former trial 524 
 
 Not admissible in criminal cases 524 
 
 By counsel ^^ 
 
 In conduct of cause 525 
 
 Statements to jury 625 
 
 On former trial 525 
 
 Admissions by principal not evidence against 
 
 surety |^ 
 
 Entries by deceased principal 5* 
 
 Admissions, evidence against privies 526 
 
 In blood— in law— in estate 527 
 
 Admission by proprietor or occupier of 
 
 land B27 
 
 When not evidence 528 
 
 Other examples -628 
 
 Surveys and maps, in case of privity of 
 
 estate 528 
 
 Entries by steward 629 
 
 When privity of estate determined, declara- 
 tions not admissible 529 
 
 Rule applicable in cases of personalty 629 
 
 Declarations of assignor 629 
 
 When not evidence 580 
 
 Admission by prior holders of negotiable secu- 
 rities 530 
 
 Limitation of the rule in such cases 531 
 
 When person making the admission need not 
 be called 531 
 
 SECTION XI.— Exception to the Pbneral 
 Rule as to Heabsat, in cases op Confes- 
 sions MADE BT PEISONEES 532 
 
 General principle of the rule 532 
 
 Confessions made in examinations taken before 
 
 magistrates 534, 5.36 
 
 Whole confession to be produced 537 
 
 Effects of parts favorable to prisoner 539 
 
 Statement inculpating another 540 
 
 Inference from demeanor of prisoner 541 
 
 Effect of confession 541 
 
 Admission of previous marriage, in bigamy. . 542 
 
 Confession must be voluntary 542 
 
 Admissibility of confession, question forjudge, 543 
 Nature of inducement that will exclude confes- 
 sion 644 
 
 Held out by persons having authority 544 
 
 Or in their presence— E. v. Pountuey : E. v. 
 
 Taylor 544r^48 
 
 Inducement by persons without authority will 
 
 not exclude confession 548 
 
 E. V. Row ; E. v. Spencer ; E. v. Taylor 548 
 
 E. V. Simpson 649 
 
 Eemarks upon that case 649, 550 
 
 Eeward offered by government 551 
 
 Approver refusing to give evidence 551 
 
 Suspicion of inducement must be removed. . . 551 
 Confession after inducement, made at su'se- 
 
 quent time 551, 552 
 
 Caution after inducement 552-554 
 
 Property found in consequence of confession — 
 
 E. v. Gould 554,556 
 
 Discovery of property, and cotemporaneous 
 
 expros8ioiis--R. v. Griffin ; E. v. Jones 556 
 
 Discoveries after a confession, implicating 
 
 others — R. v. Jenkins 556 
 
 Nature of inducement that will exclude — 
 
 Examples 557 
 
 Where language ambiguous 557 
 
 What will not exclnde confession!" 
 
 Exhortation to tell truth 55s 
 
 Inducement having no reference to subject of 
 
 confession 558 
 
 Spiritual inducement 568 
 
 Favor not connected with charge 658 
 
 Deception used in obtaining confession 669 
 
 Confession by prisoner when drunk 559 
 
 ■ Obtained By questions 659 
 
 During illegal custody 560 
 
 Before magistrates 600 
 
 Eemarks made before magistrate 660 
 
 Statement by person, under charge, examined 
 on oftth... BOO 
 
CONTENTS. 
 
 xxvii 
 
 statement by 'person, under suspicion, examin- 
 ed on oatli as witness— E. v. Lewis ; E. v. 
 
 DaTis 561 
 
 Examination on oatli before coroner 663 
 
 Statement by person, not under cliarge, or sus- 
 picion, on oatli, as witness against another.. 563 
 
 General rule on this subject 563 
 
 Deposition taken on oath, by mistalie, but after- 
 wards destroyed 563 
 
 Bxaminatiori before House of Commons 563 
 
 In prosecution' for perjury. 564 
 
 Confession relating to separate offense 564 
 
 Confession nut evidence against others 564 
 
 Former" Pracflce-^Toiig'B iJase 564 
 
 Principal and receiver 564 
 
 Statements of co-donspirators. B65 
 
 Confession in case of high treason 565, 566 
 
 Proof of collateral facts 566, 667 
 
 CHAPTER IX, 
 
 EXCLUSION OF SKCONDAET EVIDENCE; AND OF THE EULE WHICH 
 EEQUIEES THE BEST EVIDENCE TO BE GIVEN. 
 
 Best evidence to be given 567 
 
 Principle of the rule 568 
 
 Eule explained 669 
 
 Examples 570 
 
 Copy of written instrument B70 
 
 All possible proof not required 570 
 
 Proof of execution of deed by one of several 
 
 witnesses 571 
 
 Further illustrations of the rule 671 
 
 Proof of negative, when not necessary 572 
 
 Williams v. East India Company 573 
 
 Best proof of negative 573 
 
 Eule relates to the quality, not the quantity of 
 
 evidence 574 
 
 Parol evidence of writing, when not admissible, 576 
 Where the writing is the subject of dispute. . 575 
 Eule in cross-examining as to contents of let- 
 ters 575 
 
 Proof of allotments by minutes of commis- 
 sioners 576 
 
 Rule as to substituting oral evidence 576 
 
 Where there is a lease, &c 576 
 
 Where fact of tenancy to be proved 578 
 
 Where terms of tenancy to be proved 578 
 
 Collateral writings need not be produced 579 
 
 Reference to unstamped document 579 
 
 Proposals 579 
 
 In action to recover document 579 
 
 Rule as to substitution of secondary ttfHWe?^ evi- 
 dence. . ; 580 
 
 Insurance Company's books 580 
 
 Memorial of deed 580 
 
 Printed copy of manuscript 580 
 
 Printed papers 580 
 
 Newspaper 530 
 
 Machine copy, 581 
 
 Entries in judicial proceedings 581 
 
 Order of Court of Chancery : 582 
 
 Discharge of insolvent 582 
 
 Examination of prisoner before magistrate, 582, 583 
 
 Examination on oath. , ' 584 
 
 Informal examination 584 
 
 Note of evidence ; 685 
 
 Eule as to admission of hearsay 686 
 
 Secondary written evidence, refreshing memory 586 
 
 Duplicate originals 586 
 
 Writings not excluding oral evidence 686-688 
 
 Proof of marriage... 589 
 
 Where writing itself inadmissible 689 
 
 Written memorandum 590 
 
 Resolutions at a public meeting — E. v. Hunt . . 590 
 
 Inscriptions on flags, &c .' 590 
 
 Eesolutions read at a meeting 591 
 
 Cases excepted out of the general rule 592 
 
 1. Proof of records 592 
 
 Public books 592 
 
 2. Appointment to a public office 592 
 
 Justice-^Constable — Revenue officer — Sur- 
 rogate — Commissioner — Sheriff —Upder- 
 Sheriff— Vestry clerk 592-594 
 
 In legal proceeding by or against officer 594 
 
 Persons acting under private authority 594 
 
 3. Inquiry as to general mode of dealing, &c., 594 
 Impression produced by correspondence.. . 695 
 Substance of old records 595 
 
 4. Where original evidence not attainable 596 
 
 5. Notices 596 
 
 6. Examination on voir dire 596 
 
 Where document lost, &c 696 
 
 Negotiable seonritylost or destroyed.. 596, 697 
 
 CHAPTER X. 
 
 OF PRESUMPTIVE EVIDENCE, AND OF PEESUMPIONS. 
 
 Presumptive evidence defined 598-612 
 
 Nature of presumptions 612-618 
 
 SECTIONI.— OFMATTEBSjni>I0IAI.LTJJOTI0ED, 618 
 
 Matters of government 618 
 
 Accession of sovereign, &c 619 
 
 London Gazette 619 
 
 Proclamations 619 
 
 Articles of war, &c 630 
 
 Commencement, &c., of Parliament 620 
 
 Foreign states 620 
 
 War 620 
 
 Public statutes 620 
 
 General customs 031 
 
 Customs of London 621 
 
 Lawoflreland 621 
 
 Ecclesiastical laws, &c B31 
 
 Proceedings of superior courts, &c 622 
 
 Of courts of general jurisdiction 632 
 
 Not of proceedings of courts of different juris- 
 diction 623 
 
 Chancery, &c 623 
 
 Sheriff's book, &c 623 
 
 Foreign laws 633 
 
 Laws of Scotland, &c 633 
 
 Seals 623 
 
 Of superior courts 624 
 
 Of London 624 
 
 Not of other corporations 624 
 
 Inferior courts 634 
 
 Mentioned by statute 624 
 
 Almanac, &c 625 
 
 Divisio*of kingdom into counties 625 
 
 Not extent or division of counties 625 
 
 Ports— EiVer Thames (i25 
 
 Coin— Weights— Measures 635 
 
 Meaning of words 625 
 
 Events happening in course of nature 625 
 
 SECTION n.— Op Pbbsumptions made by 
 
 Courts and Jukibs 625 
 
 Presumptions of law 626 
 
 Presumptions as to facts 627 
 
 Effect of premmptim, compared with direct 
 
 evidence /. . 627, 622 
 
 Several kinds of presumptions at law 628 
 
 As to prescriptione, 629 
 
 With respect to age 639 
 
 As to legitimacy 630 
 
 As to marriage 6.31 
 
 Strict proof required in certain cases 631 
 
 As to intention 632 
 
 Of malice 632 
 
 Presumption of negligence 633 
 
 In case of publication of libels 6.33 
 
 Selling unwholesome food a 634 
 
 As to nuisance 634 
 
 Of theft, from possession of stolen goods, 634-638 
 
 Contra spoliatorem 639 
 
 From fabrication of evidence 639 
 
 Of death 640 
 
xrvm 
 
 flONIEWie. 
 
 Of survivorship 641 
 
 Of loss of ship 642 
 
 Of rejular appointment to office 642 
 
 Omnia rite acta 643 
 
 OMcial acts ^ 642 
 
 Proceedings in inferior coarts 642 
 
 Private formal acts 643 
 
 Negotiable security 643, 644 
 
 Date of dooiiment 644 
 
 Proceedings in bankruptcy 644 
 
 Wife's letters in action for crim. con 644 
 
 Letter producing answer .644 
 
 From course of public office 645 
 
 Of private office 645 
 
 Underwriters 645 
 
 From course of events 645 
 
 Of property from possession 646 
 
 As (to btmndanes 647 
 
 As to nature of tenancy 648 
 
 Incorporeal rights— (2 & 3 Wm. IV, c. 71), 
 
 648, 649 
 
 Ofpublioway 660 
 
 From user 651-658 
 
 Ofact of Parliament 659 
 
 Of writ of ad quod damnum 659 
 
 Of grant from the crown 660-672 
 
 Of private conveyances 672 
 
 Of conveyance from trustees 673 
 
 of surrender of term .' 673 
 
 Restriction of presumption 673, 674 
 
 Of licenses 674 
 
 Presumption of by-law- 674 
 
 Of payment 676-703 
 
 Of reputed ownership 703 
 
 By the law of treason 704 
 
 Circumstantial evidence 704-730 
 
 Nature of human testimony 717-730 
 
 SECTION III.— Of the Eelsvanot of Pek- 
 suMPTivE Proofs, and of the Rule which 
 CONFINES Evidence to the Points in Issde, 732 
 
 Generalrule 732-748 
 
 Proof of other contracts, &c., when admissible, 748 
 
 Res inter alios 74S 
 
 Proof of other transactions, to show knowledge, 750 
 Evidence of transaction with strangers, when 
 
 admissible 753 
 
 Proof of customs in other manors, &c 753' 
 
 Rule, on question of tenure 753, 764 
 
 Champion v. Atkinson ; Somerset (Duke of) 
 
 V. France 754 
 
 Rule, on question as to custom of the country, 754 
 
 As to particular customs 755 
 
 liights of tenants 755 
 
 Course of particular trade 755 
 
 Proof of acts of ownership in other lands 756 
 
 Stanley v. White 756 
 
 CrosB-exrtmining as to other customs— Blundell 
 
 V. Howard 757 
 
 Evidence of character 757 
 
 In civil suits 75T, 759 
 
 In criminal prosecutions 759 
 
 Where character is in issue in civil suits . . 758, 759 
 
 In action for adultery, or seduction *. . . 760 
 
 For defamation 760 
 
 General reports as to character 761 
 
 General good character 7(il 
 
 For malicious prosecution, dfcc 761 
 
 In criminal cases, evidence as to character of 
 
 prosecutor, when admitted 761 
 
 As to good character of prisoner 762 
 
 Upon what points 763,764 
 
 General character 764 
 
 Particular acts 764 
 
 Cross-examininff witnesses to character 765 
 
 6 & 7 Wm. IvTc. Ill (Introd. Chap, xxx), 765 
 
 Evidence of bad character 7()5 
 
 General disposition to commit offense not 
 
 admissible 765 
 
 In criminal cases ; evidence to be confined to 
 
 the charge 765 
 
 Examples— Treason ; Burglary 760 
 
 Where tlie felony charged is connected with 
 
 others 766, 767 
 
 Where indictment for separate offense, 767, 768 
 Proof of other criminal acts to show intention, 768 
 Uttering or possessing other forged notes or 
 
 counterfeit money 768-770 
 
 Statements by prisoner as to former transac- 
 tions 771 
 
 Proof of subsequent faets 778 
 
 In cases of mallciouB shooting; threatening 
 letter ; libel ; receiving stolen goods, &c., 772 
 
 Of conspiracy to cheat 772 
 
 Of murder 773 
 
 Rule as to conspiracy and riot 773 
 
 General evidence as to conspiracy 773, 774 
 
 Acts and declarations of prisoner, when evi- 
 dence for him— Walker's Case 774 
 
 When theyrefer to transactions proved against 
 him — Lord George Gordon's Case 775 
 
 Hanson's Case ; Home Tooke's Case 775 
 
 Hardy's Case 776 
 
 SECTION I'Vr.- Of Evidence in Matters of 
 Opinion 778 
 
 Opinion admissible in matters of skill 778 
 
 Medical men 773 
 
 Engineers— Polkes v. Chadd 779 
 
 Other examples 779 
 
 Ancient writings — Seals 780 
 
 Forged notes — counterfeit coin, &c 730 
 
 Postmark 780 
 
 Forged writing 780 
 
 Rule confined to matters of science and skill. . . 780 
 
 Kxamples 781 
 
 Evidence of underwriter, as to materiality of 
 
 facts concealed 781 
 
 Where rejected— Carter v. Boehm : Durrell 
 
 V. Bederley; Campbell v. Rickards.. 781, 782 
 Where admitted— Berthon v. ^.onghman ; 
 Rickards v. Murdock ; Chapman v. Wal- 782 
 
 ton 782 
 
 Remarks upon these cases 782, 783 
 
 In cases of collision at sea, or on land 784 
 
 Handwriting.. , 784 
 
 Foreign laws 784 
 
 SECTION v.— Op Admissions on the Record, 785 
 
 1. Of the effect of judgment by default or upon 
 
 demurrer 785 
 
 What judgment by defaplt admits 785 
 
 What judgment on demurrer admits 786 
 
 2. Of the effect of payment of money into court, 787 
 
 Must be pleaded 787 
 
 Effect as an admission 787 
 
 Where money paid in upon general counts. . . 787 
 
 Upon special contract 7S7 
 
 Effect as admission of contract 788 
 
 Upon both special contract and general 
 
 counts 783 
 
 In action on policy 789 
 
 In case of a sale by sample 791 
 
 In trover 791 
 
 Where plea of Statute of Limitations 791 
 
 Admits signature on note or bill 791 
 
 Sufficiency of stamp 791 
 
 Execution of deed , 791 
 
 Contract in writing 791 
 
 Jurisdiction of court 791 
 
 Title of plaintiff' in suing, &c 792 
 
 Gives no eifect to illegal contract 792 
 
 As to matters collateral to contract — Clay v. 
 
 Willan 792 
 
 In action for negligence 797 
 
 Effect of summons for leave to pay money in, 793 
 
 3. Of the effect of pleading over 793 
 
 General rule 793 
 
 Effect of special demurrer ; . . . 793, 794 
 
 Admits only material facts 794 
 
 Not allegations which are not traversable 794 
 
 How far admission operates 794 
 
 As to facts material to issue 795 
 
 Facts admitted not to be proved 7;i5 
 
 Cannot be disproved 795 
 
 Examples 795, 796 
 
 How far admission before jury 796 
 
 Edmunds v. Groves ; Benuion v. Davison; 
 Smith V. Martin ; Carter v. James ; Bing- 
 ham v. Stanley ; Robins v. Maidstone ; 
 
 Fearn v. Pilica 796, 797 
 
 Remarks upon these cases 797-799 
 
 4. or the effect of a particular of demand 799 
 
 Where credit given for sums paid 800 
 
 Admits payment by defendant SOO 
 
 Where plaintiff sues for balance 800 
 
 Admission as to set-off 800 
 
 How far conclusive SOO, 801 
 
 Particular confined to part of demand SOI 
 
 First particular enlarged by second 80^ 
 
COKTIENTB. 
 
 XXIX 
 
 Evidence on special count, tbongh not men- 
 tioned in particular 803 
 
 Particulars not abridged by demasd 803 
 
 When interest need not be particularized 803 
 
 Plaintiff's particular, how far evidence in sup- 
 port of defendant's plea 803 
 
 Errors in particular 804-807 
 
 Indate 807 
 
 Where defendant's evidence Bnpplles other 
 
 items for the plaintiff 803, 807 
 
 Delivery of particular when to be proved 809 
 
 Variance between particular delivered and 
 
 one annexed to the record 809 
 
 Particular not part of record 809 
 
 Particulars of set-off 809 
 
 CHAPTER XI. 
 
 OF THE EULE FOE DETEEMINING WHETHEE THE PLAINTIFF OE DEFENDANT 
 OUGHT TO PEOVE .TIJE ISSUES ON THE EECOED. 
 
 General rule 909-812 
 
 Onus probandi lies on party asserting affirma- 
 tive 807-812 
 
 Tests to ascertain on which side affirmative 
 
 lies 810-813 
 
 Charge of breach of duty involving negative . . 812 
 Not reading the "Wjirty-nine Articles. . . 813-815 
 Putting combustdSes on board vessel with- 
 out notice .^ 815 
 
 Breach of contract 815 
 
 Allegation that work not performed in proper 
 
 manner 815 
 
 That work not performed at all 815 
 
 Breach of covenant stated negatively 815 
 
 Ownership of vessel, in action for loss by 
 
 barratry 816 
 
 Which party to begin 816-820 
 
 Value given for biltof exchange 820 
 
 Where offense involving negative, created by 
 
 statute ,820 
 
 Doing act without consent of owner 821 
 
 Where a fact is particularly within knowledge 
 
 of a party -iff 821 
 
 Want of qualification under the game laws, 821 
 
 Fact alleged in defense 823 
 
 Infancy 828 
 
 Consent of parties in prosecution for bigamy, 
 
 833, 83i 
 
 CHAPTER Xn. 
 
 OF THE EULE THAT THE SUBSTANCE ONLY OP THE ISSUE NEED BE PEOVBD. 
 
 General rule 834 
 
 1. Examples in civil cases 825 
 
 Plea of solvit ad diem — Covenant — Action 
 
 against sheriff 825, 826 
 
 Slander— Eeplevin 827 
 
 Trespass— Case for disturbance of common.. 829 
 
 Other examples 839 
 
 Plea of tender— Payment. ; &30 
 
 2. Examples in criminal cases 830 
 
 Prosecution for libel 830 
 
 False pre tenses — Burglary — Robbery — Murder 
 
 (Manner of death) 830, 831 
 
 Charge of being principal in first degree.— 
 
 Proof of being in second 831 
 
 Accessory 832 
 
 Murder of officer in execution of duty — ^Mack- 
 alley's Case 832 
 
 3. Of material and immaterial variances in 
 
 civil suits 835 
 
 General rule 835 
 
 Examples— In action on tort 836 
 
 In action on contract 837 
 
 In cases of prescription 837 
 
 Averment, mere inducement needs not be 
 
 proved strictly 837 
 
 Averment that cannot be struck out must be 
 
 proved— Bristow v. Wright 838, 839 
 
 Averment that maj^ be struck out needs not 
 be proved— Williamson v. Allison; Glad- 
 well v. Steg^ll 841, 842 
 
 4. Of material and immaterial averments in in 
 
 dictments 843 
 
 Immaterial averments — Examples 843 
 
 Material averments— Examples 844 
 
 5. Of variances in civil suits 885 
 
 Variances in statement of contract 845-849 
 
 Where contract is stated in action on tort, 849, 850 
 
 What parts of contracts need be stated 851 
 
 Joint contracts 861 
 
 Eule as to party sued 851 
 
 As to party suing 852 
 
 Joint torts 853 
 
 Proof oftime 864-836 
 
 Of place 837 
 
 Statement of prescriptive right 859 
 
 Proof of more ample right 859 
 
 Of less extensive right 859 
 
 Right must, be of same nature 859, 860 
 
 Eule of court to amend variances 8li0 
 
 Eight of way 860 
 
 Of common 860 
 
 Variance as to documents stated in plead- 
 ings 861 
 
 Deed set out in substance on the record 861 
 
 Record set out in substance 862 
 
 Averment as to day of acquittal 862 
 
 Date of judgment 873 
 
 Old rule as to variances 862-873 
 
 i. Of amendment in civil suits 873 
 
 Stat. 9 Geo. IV, c. 15 (Lord Tenterden's Act), 873 
 Variances in civil actions and misdemeanors, 
 between the written matter averred and 
 
 the writing proved, may be amended 874 
 
 Cases on this statute 874 
 
 • In civil actions 874 
 
 Subpoena — Masterman v. Judson 874 
 
 Statement of contract— Lamey v. Bishop ; 
 
 Smith V. Brandram 874 
 
 Secondary evidence of writing— Libel 875 
 
 In indictments for misdemeanor — Perjury, 
 
 875, 876 
 
 Stat. 3 & 4 Wm. IV, c. 43, § 23 876 
 
 In what cases amendments may be made . . 776 
 
 Sec. 24 ; as to finding facts specially 877 
 
 General view of the provisions of this act. . 878 
 What proceedings they apply to— What 
 
 variances — Amendment, now made 878 
 
 Power, where the variance not prejudicial, 
 
 &c 878 
 
 Terms of amendment 878 
 
 Where it may be prejudicial 878 
 
 Terms of amendment 87S 
 
 Restriction on amendments 879 
 
 Where court will revise decision of judge 
 
 as to amendments 879 
 
 Where amendment refused 879 
 
 Facts found specially 879 
 
 Power of amendment reserved to court. . 879 
 
 Power of amending exercised liberally 880 
 
 Amendment, when to be made 880 
 
 1. Cases in which amendments have been al- 
 lowed 880 
 
 As to warranty 
 
 False representations as to soundness 
 
 General custom in trade 
 
 Wager 
 
 Tolls in market place 
 
 Contract to prodnce government security.. 88] 
 
 To guaranty payment " 
 
 To build 
 
 As topa'yment 
 
 Legal elfect of contract 
 
 Agreement to refer 
 
 In action against carriers 
 
 As to parties to agreement , 
 
 Members of firm 
 
XXX 
 
 CONTENTS. 
 
 Bills and notes 883 
 
 Misnomer of close 834 
 
 Of parish 884 
 
 Bay of demise In ejectment 884 
 
 In action for Blander 884, 885 
 
 For libel 885 
 
 Amendment "bf adding count 885 
 
 The words. " by statute," to plea 885 
 
 By annexing writ 885 
 
 Allegation of excuse for notice of dishonor, 885 
 
 Plea of gaming 885 
 
 2. Cases m which amendments have been 
 
 refused 885 
 
 Statute does not apply to material omissions, 885 
 
 Extending justification or avowry 885, 8Sti 
 
 Venue — Name of defendant ~ amount of 
 
 damage 886 
 
 New contract and breach— Agreement for 
 
 lease- Eviction 886 
 
 Consideration for guaranty— Breach 886 
 
 New matter 887 
 
 Kecital of deed 887 
 
 Breach of covenant 887 
 
 Where variance may have affected mode of 
 
 pleading— Effect of deed 887 
 
 Claim of watercourse 888 
 
 Demise in ejectment 888 
 
 Year of demise 888 
 
 Inuendoes in action for slander. &c 888 
 
 Where objection would be good in arrest of 
 
 judgment 889 
 
 Agreement to consolidate contracts 889 
 
 7. VarianceB in criminal cases 889 
 
 Proof of time 889 
 
 Of place 890 
 
 Where offense is of local character 891 
 
 Of value 891 
 
 8. Of amendments in criminal cases 891 
 
 Stat. 7 Geo. IV, c. 64 891 
 
 • Sect. 19 ; indictment not to abate by dila- 
 
 ■^ ' tory plea of misnomer 892 
 
 Wrong addition 892 
 
 Sect. 20 ; judgments not to be stayed in cer- 
 tain cases 892 
 
 Stat. 9 Geo. IV, c. 15 ; amendment of varian- 
 ces aa to writings, in misdemeanors 892 
 
 Stat. 11 & 13 Vict. c. 46, § 4 ; in felonies 893 
 
 Stat. 14 & 15 Vict. c. 100, § 1 ; amendment of 
 other variances, not matMial to the merits 
 of the case, in felonies . . ™ff 
 
CONTENTS OF AMERICAN NOTES. 
 
 VOLUMES I AND II AND IH. 
 
 No. PAGB. 
 
 1 Convpeteruiy of mtnesses as affected by interest, old rule, 5 
 
 3 . Burden of proving incompetency, 5, 6 
 
 3 Illustrations of rule as to competency ; in special cases, jurors, arbitra- 
 
 tors, slaves, 6, 7 
 
 4 In case of mental derangement, 9,10 
 
 5 In case of persons deaf and dumb 10, 11 
 
 7 At what age children are competent, 10, 11 
 
 8 Tested by actual knowledge, 10, 11 
 
 9 Form of administering the oath, 16 
 
 10 Competency as affected by religious belief, 16, 17 
 
 11 Mode of showing incompetency on account of, 18 
 
 13 Testimony taken on affirmation, as in note 9, 31, 32 
 
 13 Incompetency from conviction of crime, 33, 33 
 
 14 Not provable by the witness, 33 
 
 15 Competency restored by pardon, 34 
 
 17 Effect of a conditional pardon, 34, 35 
 
 18 Ground of the rule, note on page, 25 
 
 19 Old rule as to parties on the record 39-36 
 
 30 Competency in cases of bastardy and seduction ; as to losses, &c., 40 
 
 31 Competency of members of corporations, charitable, public and private,. 44 
 
 32 Parties, when competent ; discharge of one of several j ointly indicted,. 46 
 
 23 As to parties liable on a joint contract, 47 
 
 24 Parties sued jointly for trespass, 49 
 
 25 Joint trespassers not served with process, 49, 50 
 
 36 One being acquitted, to testify for the others, 54 
 
 27 Parties not compelled to testify under former rule, 56 
 
 28 Plaintiff sworn at defendant's request might testify, 56 
 
 39 Pa/rty injv/red, competent on a pvblie prosecution, 59 
 
 30 Upon indictments for misdemeanors, usury and the like, 59 
 
 31 The party competent whose name is forged, 60 
 
 33 Parties entitled to a reward on conviction, informer, note 30, 60, 61 
 
 33 Party injured competent, unless liable or interested in some way,.. 60, 61 
 
 34 Susiand and wife, not competent for or against each other, 80 
 
 35 Declarations of one not evidence for or against the other 80 
 
 36 Being joint parties, his declarations admissible, 80, 81 
 
 37 Same rule held in case of his letters to her ; or hers to him, to show 
 
 the state of her feelings, 81, 83 
 
 38 A kept mistress, though passing as a wife, is competent, 83 
 
 39 Where the witness became incompetent, under former rule, 82 
 
 37 Where the wife is the real party, 83 
 
 40 Husband and wife admissible to impeach each other, see note 45, 84 
 
 41 Wife may crimihate the husband, where he is not on trial for the crime. 85 
 
 43 The general rule where he is on trial, 85 
 
 44 An exception allowed on indictment for forcible marriage, 88 
 
 45 Declarations in extremis ; general rule and its qualifications, 88 
 
 46 The wife's declarations acting as her husband's agent, 93 
 
 47 The wife competent to prove criminal conversation, 95 
 
 48 Mode of proving incompetency from interest; old rule, 99 
 
 49 Proving release, 104 
 
 50 AdmiimbiUty of accomplices, 106 
 
XXXU CONTENTS OF AMEEICAN NOTES, 
 
 No. I'-ioi'- 
 
 51 Accomplice admitted on an implied promise of pardon, 107 
 
 52 The imBlied promise does not extend to otlier crimes, 107 
 
 53 The accomplice is admitted on motion to testify, 108 
 
 54 Hia testimony not admissible against himself, 108 
 
 55 An accessory may be convicted and punished, though principal be 
 
 pardoned, 109 
 
 56 One of several jointly indicted, is not competent for another ; but may 
 
 be discharged and sworn for the others, 109 
 
 56 and 57 When such parties may be witnesses for each other, '. 112 
 
 58 Witnesses oMowed to impeach their own acta ; illustrations of rule, . 119-127 
 
 59 Competent to prove their own illegal and fraudulent dealings,.. . 127 
 
 60 Subscribing witnesses may impeach deed or will, for fraud or want of 
 
 capacity,. 129 
 
 61 A witness may prove his own wrongful act, 130 
 
 62 Professional confidence, rule relating to ; attorneys, solicitors, physi- 
 
 cians, senators, grand jurymen, &c., 130-134 
 
 63 Rule where attorney acts for two persons, 135 
 
 64 Interpreter between attorney and client 135 
 
 65 Where attorney consulted merely as a friend, 135 
 
 66 The rule does not appty to confidential clerks ; limitations of rule as 
 
 to clerks, priests, physicians, &c., 137 
 
 67 The kind of communications which are privileged, 140 
 
 68 Further illustrations of the rule, 142 
 
 69 Relative to papers, 145 
 
 70 Being a sabscribing witness, the attorney must testify, 156 
 
 71 Must testify as to the person retaining him, 157 
 
 72 Or to his client's handwriting, 157 
 
 73 Or that a deed is in his hands, 157 
 
 74 Rule does not apply to things in their nature public 159 
 
 75 Disclosures leading to arrest, not inquired into on trial 161 
 
 76 Confidential communications to Government by its agent, 164 
 
 77 Orand jurors hound to disclose testimony before them ; see note 62, 167 
 
 78 Hearsay, letters in tlie nature of notice admissible, 170, 173-180 
 
 Inarimissible to create or destroy a title, 173 et seg. 
 
 Decisions on questions of freedom, surveys, loss of papers, declara- 
 tions by former owners, aud the like, 173-180 
 
 79 Declarations as to state of health, wheq,admissible, 182 
 
 80 Declarations, a part of the res gestm, admissible, 185 
 
 80a Plaintiff's instructions to his ship-master, 185, 186 
 
 806 Declarations of misconduct between husband and wife 18'7 
 
 81 What are res gestce ; illustrations of the rule, 188-202 
 
 83 Declarations of a bankrupt, as to state of liis affairs 202 
 
 83 Declarations of one conspirator when admissible against another, 205 
 
 84 No testimony admissible except on oath, 212 
 
 85 Nor in the absence of parties, 218 
 
 85ffl When declarations are admissible, they may be proved without calling 
 
 the speaker 215 
 
 86 Hearsay is admissible in pi-oof of corporate powers, or official 
 
 character, 217, 218 
 
 87 Also on questions of boundaries, 219-237 
 
 88 And in the case of a custom, 231 
 
 89 And in proof of pedigree 249 
 
 90 Entries in family bible, monuments, &c., 249 
 
 91 To prove marriage, pedigree, &o., 251 
 
 92 Under plea of infancy, 253 
 
 93 Not to show place of bifth, 253 
 
 94 Not to bastardize a child born in wedlock, 254 
 
 95 Records and registers of births, marriages, deaths, 255 
 
 96 Recitals in deeds in proof of pedigree 257 
 
 97 Hearsay must be ante litem motam, 259 
 
 98 In proof of death or marriage 263 
 
 99 Dying declarations not admissible in civil actions, 286 
 
 100 Principle on which they are admitted, 289-293 
 
 101 To be weighed with caution 299 
 
 103 Entries by persona since deceased against their interest 301-303 
 
 103 When the acts or entries of the principal bind his surety 307-310 
 
 104 Beclarationa by the owner of property against hia interest, 814-333 
 
 Application of the rule as against the heir, 315 
 
 As between devisor and devisee, 815 
 
VOLUME ONE. XXXIU 
 
 No. PAGE. 
 
 Declarations of grantor, vendor, &c., of real estate as against the grantee, 
 
 wndee. &c... ^. 318-333 
 
 The rule applies to personal property, 333-3-33 
 
 Where the transfer is by operation of law, 333 
 
 Or by act of parties, as in sales, 333-337 
 
 Rule applied to choses iu action 337-833 
 
 Bills of exchange and promissory notes, 338 
 
 105 Entries by deceased agent or person in due course of business, 335 
 
 106 The character of party to be proved, 345 
 
 107 Entries,- affidavits, receipts, accounts of, third persons, dtc, are mere 
 
 hearsay and inadmissible, 348-351 
 
 The general rule and some exceptions to it. 
 
 Entries of notaries and other officers and agents 349-351 
 
 108 Mode of proving book accounts, 370-386 
 
 The rule and its application in tile several states, 370-375 
 
 The oath of the party in sujiport of the account, 375-380 
 
 Proof of sale and delivery of personal property, 377 
 
 Of services performed 878 
 
 Entries to be made at or near the time, 8:^0 
 
 » In a book properly kept ; 3**1 
 
 Must contain original entries, 381 
 
 Form of making them 381-383 
 
 Regarded as secondary evidence, 383, 386 
 
 Evidence of price or value, and of sale and delivery, 384 
 
 Later illustrations 384-386 
 
 109 Some exceptions to the rule excluding hearsay, 387-389 
 
 109a Evidence of a deceased witness given on a former trial, admissible 389 
 
 110 Admissible, thouglr not given in an action of the same tecbnical 
 
 form , 390 
 
 111 The parties must be the same, 391 
 
 lis The point in issue must be the same 393 
 
 113 In the case of incompetent evidence, 393 
 
 114 Admissible only in case of death or incompetency, 393-395 
 
 115 Mode of proving former testimony, 395 
 
 Minutes of trial 395-400 
 
 11-6 Proof of former suit, death of mtness, &c., 405 
 
 IW Party's admissions not evidence in his own fa/oor, 402-40f 
 
 The general rule, 403 
 
 Some exceptions to the rule, j,. . 405 
 
 118 Admissions and confessions must be taken together 406-410 
 
 Oral admissions, 408 
 
 119 Time and weight of admissions 411 
 
 130 Admissions referring to a written paper, ■ 411 
 
 131 Proof of admissions by letter > 413 
 
 133 The different parts of an admission or confession may be entitled to 
 
 different weight, 418,419 
 
 133 Manner of proving verbal admissions, 435 
 
 134 Admissions without prejudice, pending a compromise, 437 
 
 When admissible, and when not, 437-430 
 
 135 Admissions on oath, when admissible 433 
 
 13G Q-eneral admission of a debt, its effect, 433 
 
 137 Implied admissions, 437 
 
 And what amounts to an admission ' 437-443 
 
 138 Entries in Bank books, between whom admissible 447 
 
 139 Effect of admissions, depending upon tlie time and manner of making 
 
 them, 454-464 
 
 J Ad/missions of record or by sti/pulation 454 
 
 Admissions which operate by way of an estoppel in pais, 454-460 
 
 Miscellaneous cases illustrating the rule, 460-464 
 
 130 Recital of one deed in another, its effe'it 473 
 
 131 Receipts an'e open to explanation, '. , 474r-478 
 
 133 A bill of parcels may be-explained, 478 
 
 133 Admissions by a trustee or nominal party, 480-484 
 
 Their effect in Nfiw York 481 
 
 The assignee is protected against acts of assignor, 481-484 
 
 134 Admissions of corporators or their agents, 487 
 
 135 The admission of a co-defendant, or of one jointly indicted with others, 493 
 
 136 Of a pO/rtlioeps criminieoi co^conspirator,-. 494 
 
 137 Admiations by one of several jointly Ham; their effect, 496 
 
 Vol. I. 5a 
 
XXXiv CONTENTS OF AMEEICAN NOTES, 
 
 PAGE. 
 
 In reference to fact of partnerftiip, . ..; ^98 
 
 138 Admission by one partner after dissolution, effect of, 4y» 
 
 139 When made during partnersHp, *^° 
 
 140 By one of several jointly and severally liable, OUI 
 
 141 Admissions hy an agent in'the business of Ms agency, • • ■ om 
 
 They bind the principal only when a part of the res gesta. . SUS-ols 
 145 Proof of agency ; order of proof, ^|* 
 
 143 The agent's authority, hovir proved, ■ '^^ 
 
 144 Not proved by his declaration ; his conduct admissible, 510 
 
 145 Special or conditicml agencies, °V^ 
 
 146 Declarations accompanying official acts ; deputy sheriff, 5^1 
 
 147 And confessions by an infant, ' • 5*~ 
 
 148 Admissions by counsel or attorney, ^rj 
 
 149 As to what will be admitted on a trial, 5^ 
 
 150 Admissibility of confessions ; effect of , °o« 
 
 151 Confessions before a magistrate, redtieed to writing, 5d& 
 
 Under the statute of New York, 5°° 
 
 The three kinds of confession, 5o7 
 
 153 Confessions in conversation, taken together 538 
 
 153 Not sufficient unless the corpus delicti be proved, 543 
 
 154 Obtained under improper influences 543 
 
 155 What inducement will or will not exclude confessions, 544-5^ 
 
 156 Confessions under threats and promises by pr6secutor, 550 
 
 157 Made some time after promises held out, 558 
 
 158 Though the confession be inadmissible, a fact brought to light by it may 
 
 be proved, 555 
 
 159 Illustration of the rule, 555 
 
 160 Testimony in proof of treason, under TI. 8. Con 566 
 
 161 Prisoner's confession admissible, 567 
 
 163 Not sufficient though proved by two imtnesses, 567 
 
 163 Secondary evidence not admissible, if there be better 568 
 
 164 Evidence of an inferior grade not admissiUe if there be evidence 
 
 of a higher grade, . ^ 570 
 
 165 The rule does not require the strongest possible evidence, 573 
 
 ■ 166 It requires the highest, the best evidence, 574 
 
 167 An oral contract not admissible in place of one in writing, 576 
 
 168 Nor can a record be proved by parol, 583 
 
 169 The vrriiten examination of a prisoner, records, &c., not to be supplied 
 
 by parol, 583 
 
 Exceptions to the rule, 584 
 
 170 Entries or writings used by mtnesses to refresli his memory, 585 
 
 171 Written evidence excludes pa/rol, 587 
 
 Seceipts are exceptions ; unless the attempt is made to prone their 
 
 contents, 587 
 
 173 Proof that one is an attorney, 593 
 
 173 Appointments to office ; official character, 593 
 
 174 Presumptive evidence, applicable to corporations, 598 
 
 175 One fact inferred from another, when.. 598 
 
 176 Presumptions open to exiplanaiion, stand till overcome, 599 
 
 177 Theory of presumptive evidence, 599 
 
 Illustrated in actions for divorce and crim. con., 599, 600 
 
 Particular presumptions : 
 1. That a man intends the natural result of his act or conduct, . . . 601 
 3. Guilt from acts that usually accompany guilt, 601 
 
 3. Right from continued enjoyment, 602 
 
 4. Favor to good character,' 603 
 
 5. That events happen in their ordinary course,. . . ." 603 
 
 6. That things are in their legal and rightful state, 603 
 
 7. That a state or condition of things continues, 603 
 
 8. That that which happens naturally, did happen 603 
 
 9. That every one takes car» of his own concerns, 604 
 
 10. That every one governs himself by rules of right reason 604 
 
 That every officer and private man does his duty, 604-608 
 
 11. That men act according to their own interest, .' 608 
 
 13. In favor of title and rights of property, 609 
 
 13. All tilings presumed rightly done and in the accustomed man- 
 
 , nsr , 610 
 
 14. In favor of jurisdiction, 010 
 
 16. Presumptions referable to the policy of the law, 611 
 
VOLUME ONE. • XXXV 
 
 No. PAGE. 
 
 16. From the absence of an opposite presumption, 6U 
 
 17. Irresistible in their very nature, 612 
 
 178 WdgM of presumptions, 613 
 
 179 Adjusted by the discretion of judge and jury, 613 
 
 180 Rules for determining the weight and effect of presumptions,. . . 614^617 
 
 181 Inferences upon inferences ; what are dependent and what independent 
 
 facts, 617 
 
 183 Presumptions as to legitiTnacy 630 
 
 183 Presumptions of guilt ; larceny proved by the possession of stolen goods, 
 
 and the fact of their being stolen, 634 
 
 184 The presumption against crime stronger than tjmt in fawr of life, . . . 640 
 
 185 Presumption that a person is dead from his long absence, 640 
 
 186 Presumption from prior possession, 646 
 
 187 Presumptions from adverse enjoyment ; ancient lights, &c., 649 
 
 188 Bights of way presumed from twenty years' use, 650 
 
 189 Basements, such as right of fsJiery, landing places, right of mining, to 
 
 use running water, dec, acquired by user, 652 
 
 Bights of ripaiian owners, 653-659 
 
 190 Presumption of grants from government, 660 
 
 Of conveyances by deed, &c., 662-678-672 
 
 In favor of title from long possession, 664r-072 
 
 Deeds from trustees presumed, 669 
 
 And deeds according to contract, 671 
 
 191 Presumption from non-demand, &c., of quit rents, 673 
 
 192 Presumptions of payment, 675 
 
 193 Of payment after the lapse of twenty years, ._. 676 
 
 Of mortgages, 678 
 
 When mortgagee in possession 679 
 
 Grounded on the statute of limitations, 679-682 
 
 Judgments, decrees, annuities, legacies, 682-684 
 
 Vendor's equitable lien, trusts, &c 684^687-694 
 
 Where there is a legal and equitable remedy, 687-690 
 
 Presumptive bar removed, by what circumstances, 687-691 
 
 Delay in matters of trust, 691-695 
 
 Eights waived and lost by delay 695-698 
 
 Effect of long delay on legal rights, 698-703 
 
 Note very elaborate, under forty-three heads or sections. 
 
 194 Presumptions of fact from circumstances, 704 
 
 Circumstantial evidence con^dered 704-731 
 
 "The theory of presumptive- proof," The Eleven Cases, 704^710 
 
 In capital cases the body must be found, 711 
 
 Where the weight and effect of oral testimony is settled by law, 
 
 711-714 
 Credit due to conflicting witnesses, 714-731 
 
 195 Irrelevant testimony not admissible, 782 
 
 196 Evidence must be confined to points in issue, 733-748 
 
 The issues are fixed by the pleadings, 733, 737 
 
 Connected and consecutive proofs, 736-739 
 
 Cumulative testimony, 739 
 
 When testimony received as relevant, 740-742 
 
 When rejected as irrelevant, '. 742 
 
 If a party puts himself on one issue, he admits the rest, 743 
 
 Bill of particulars, notice, &c., 744-745 
 
 Evidence under general issue, 745 
 
 Under different pleas, 747, 748 
 
 197 Eddence Mmissible in particular actions 748 
 
 198 Proof of other transactions to show knowledge, 751 
 
 In cases of fraud and bad faith, 751, 752 
 
 199 In ciml suits evidence of cha/raoter is not admissible, 757 
 
 Unless it be put in issue by the nature of the action 757-759 
 
 200 On indictm,ents for rape, character of person injured may be sustained, 763 
 
 201 Tlia prisoner on trial mm/ show his general clmracter, 762 
 
 202 (183) Conclusive effect of good character in certain cases 763 
 
 303 Particular transactions indicating character not admissible, 764 
 
 304_ What is general chan-acter, 764 
 
 205' Evidence on trial for murder, in killing a trespasser, 764 
 
 306 Proof of a felo ny, not admissible on trial for treason, 766 
 
 207 Proof of guilty knowledge, against receiver of stolen goods, 767 
 
 308 Against one who utters a forged note, 769 
 
XXXVl CONTENTS OF AMBEICAN NOTES, VOLUME ONE. 
 
 No. PAGE. 
 
 209 Or passes bogus coin, 770 
 
 310 Bmdence of other acts, in cases of conspiracy and fraud, ._ 773 
 
 A Opinions of witness admissible on questions of value, sam^y, &c., 785 
 
 211 Effect of a default in certain actions, 785, 786 
 
 212 Judgment on bond, distinct breaclles assigned, 786 
 
 213 Effect of paying money into court, 789 
 
 314 Offers to allow judgment 789 
 
 315 Bill of particulars, when delivered and effect of 803 
 
 216 Party furnishing, need not give evidence against himself, 803 
 
 217 Particulars of demand and of the person of the plaintiff, 804 
 
 218 Bill deemed Sufficient, though in some respects inaccurate, 805 
 
 Sufficient if it apprise the opposite party of the nature of the 
 
 demand, 805, 806 
 
 319 Particulars of plaintiff's demand enlarged by the defense, 808 
 
 When to be delivered 808 
 
 230 Which party holds the affirmaiime ; the onus probandi, 810-813 
 
 Determined by the state of the pleadings, 810 
 
 When the onus changes 810-813 
 
 221 A charge of crime or breach of duty, must be proved though it involve a 
 
 negative 813, 814 
 
 222 Proving a negative, in actions of covenant, 815 
 
 338 Which party to begin 816-830 
 
 Proof of authority, or of a condition vphich avoids, 816, 817 
 
 The state of the pleadings regulates the onus, 817, 820 
 
 334 The onus probandi on questions of jurisdiction, 823 
 
 Presumption trom color in a slave state 833 
 
 Where the negative is of peculiar character, 833,833 
 
 335 Proof of infancy to avoid a deed, mu"t come from the defense, 838 
 
 226 The allegations of the complaint must be proved, 834 
 
 337 The essential facts must be substantially proved 835 
 
 338 In slander the plaintiff proves the substance of the actionable words, 827 
 
 239 The party is not to depart from the issue, 838 
 
 330 On indictment for obtaining money undei^ false pretences, proof of the 
 
 pretences, 830 
 
 231 Several being engaged in a felony, all are principals, 833 
 
 233 And are punishable in same manner, 832 
 
 238 Proof of writ and official character on trial for murder in killing the 
 
 officer while resisting service of process, 833 
 
 334 Proof of the issue in criminal cases, 833-835 
 
 Prisoner acquitted as to part and found guilty of residue,. . . 833-S33 
 
 Acquitted of the higher and found guilty of lesser degree, 833 
 
 Proof as to number, magiiitude or value, 834 
 
 Of intent, 885 
 
 235 Immaterial averments ; variances in pleading, ■ gsg 
 
 336 Matters of inducement, need not be strictly proved, 837 
 
 337 Distinction between immaterial and impertinent averments, 839 
 
 Proof required under the first, 840 
 
 238 When an averment need not be proved, 841-843 
 
 239 Material averments in criminal actions 844 
 
 What are such averments, 844 845 
 
 340 The allegations and proofs must correspond, 846 
 
 Questions of variance in cidl actions, 846-849 862 
 
 241 The facts must be proved in substance as alleged ' 850 
 
 Amendments on trial, 851 
 
 343 Defectioe parties plaintiff and defendant, 852 853 
 
 243 Proof in actions for joint torts .'V 853^ 854 
 
 344 Proof of time; in general precise day not material, 855^57 
 
 345 Proof of place ; important only when descriptive 857 
 
 346 Prescriptive right?, proof under allegation ." 860 
 
 247 (240) Variance, when material and when immaterial in civU suits, .' 863 
 
 1 Proof of allegations setting forth written instruments 863-864 
 
 2 When the instrument is described in substance and effect, 864-869 
 
 3 When introduced to support a general allegation, 869-873 
 
 Rules under the code, 873 
 
 248 Proof of time, criminal cases, ."].".',' 890 
 
 Arid of place .'.!!' 890 
 
 349 When the offensu is of a local character, 890 891 
 
 350 Certain omissions in indictments do not vitiate , , ' 893 
 
CONTENTS OF AMERICAN NOTES. 
 
 VOLUME II. 
 
 No. PASB. 
 
 351 Judgment cannot he used to pr^udiee a stranger, 4 
 
 253 None benefited who might not have been prejudiced by it, 7 
 
 353 Judicial proceedings not evidence against a stranger, 7-9 
 
 Sureties with or without notice, 8, 9 
 
 354 Not evidence for a stranger, 9, 10 
 
 355 Admissible between real, though not nominal parties, 10 
 
 386 Continued, 11 
 
 357 Eule as held in ejectment cases 11 
 
 358 Judgments and v&rdicts hind parties and primes 13 
 
 359 Who are not privies in estate, 14 
 
 360 Reversioners, assignees, grantees, 15 
 
 361 Judgment concludes only as to grounds covered iy it, 18 
 
 May conclude though not a bar 18, 19 
 
 363 Concludes only in a matter directly in issue, 18, 19, 30, 61 
 
 Illustrations of rule, 31-23 
 
 Parol proof received to show matters litigated, 81, 33 
 
 363 An award covers matters submitted, 33, 34 
 
 ', concludes as to several causes, when, 34 
 
 Not as to causes withdrawn, &o., 24, 35 
 
 J, As to subsequent damages, 35 
 
 265 When a iierdict and judgment in one action bars another in a different 
 
 form 27, 38 
 
 Conclusiveness of judgment, 38, 39 
 
 Exceptions to rule, 39, 30 
 
 Matters not necessarily involved in former suit, 30, 31 
 
 366 Judgment conclusive only of fact found 33 
 
 Given on ground of defective complaint,[no bar, 33 
 
 Cases inVhich it is no bar, 32, S3 
 
 Premature suits, discontinuance, non-suit, &c., 33, 34, 109 
 
 268 Judgment conclusive, whether pleaded or given in evidence, 36-40 
 
 Keview of the rule in different states, 86-39 
 
 In the state of New York, 40 
 
 269 Facts found hy a special verdict, , 43 
 
 270 Judgment in ejectment conclusive in action for mesne profits, 43 
 
 271 Conclusiveness of former judgment considered with reference to the 
 pleadings 43-46 
 
 The English rule stated in the text, 43 
 
 Not generally adopted in this country, 43-45 
 
 As held in state of New York, 46, 47 
 
 273 Judgments in criminal actions, effect of, 48 
 
 373 Judgment against principal emdence of his conviction against an 
 accessory, 49 
 
 Admissible in evidence of its rendition, 49, 50 
 
 And of its legal consequences, 49, 50 
 
 374 Particula/r facts proved by verdict and judgment in another action,. . 52,54 
 Such as amount of damages, election, title, &c 52-54 
 
 375 Judgment of conviction, on confession 54 
 
 276 Or of acquittal, admissible, '. 54, 55 
 
 878 Decrees in equity, conclusive to the sam^ extent as judgments, 6^-66 
 
 Conclusve between same parties on matters in issue, 60, 61 
 
IXXVIU CONTENTS OF AMERICAN NOTES, 
 
 No. PAGE. 
 
 Cases of dismissal 61, 63 
 
 Not evideuce against strangers to suit, 63-64 
 
 Admissible to show rem ipsam, 64,65 
 
 On questions of title, &c. 64, 65 
 
 Jurisdiction open to inquiry, 65, 66 
 
 In personam, not binding on party not served, 65, 66 
 
 379 Statements in bill as evidence, 67-73 
 
 380 Issues in eqvity ; allegations in pleadings received as admissions, . . 68,69 
 
 May in some cases read a part of bill or answer, 70, 71 
 
 Bill and answer must be read together, 71 
 
 Exceptions to rule 71, 73 
 
 Answer of one defendant not evidence against another, 73, 73 
 
 Allegations admissiUe against privies, 73, 73 
 
 381 Judgments in courts of special jurisdiction, 74 
 
 383 Spiritual courts, 'marriage and divorce, 74, 75 
 
 383 In courts of probate ; decrees in, 75 
 
 384 Granting letters of guardianship, 75 
 
 385 Probate, and its effect •. . . 76 ' 
 
 386 Executors and administrators protected in their action pendente 
 
 lite, 76 
 
 387 Grant of adminstration, probate of will, their effect, 76, 77 
 
 388 Probate, a judicial act, recognized iri another state ,77, 78 
 
 389 Surrogates, their powers and judicial action, 78-85 
 
 Courts of like j urisdiction, and their determinations, 78-80 
 
 Their proceedings in rem, sales, titles, accounts,. ... 80, 81, 83. 83 
 
 Jurisdiction and judicial sales, 83-85 
 
 890 The court being local, its action not recognized beyond territorial 
 
 jurisdiction 85-90 
 
 Representative appointed in one state not recognized in 
 
 another, 85, 86 
 
 Qualified recognition of foreign probate, 86, 87 
 
 The judicial act valid, bona notdiiMa, 87, 89 
 
 Inquiry into jurisdiction, 89, 90 
 
 391 Judgment or sentence may he impeac/isd by strangers for fraud,. . . . 95-98 
 
 Not by parties to the suit or proceeding, 95 
 
 Strangers acting under fraudulent judgments protected, 96 
 
 Sentences of divorce, jurisdiction, 96-98 
 
 Granted in one state, when valid in another, 96, 98, 178 
 
 393 Judgments of inferior courts, their admissibility and effect, 105-135 
 
 What are inferior courts, ; 105, 106 
 
 Jurisdiction open to inquiry 106-108 
 
 Proceedings cannot be attacked collaterally, 106-109 
 
 Concurrent jurisdictions, 108 
 
 ^ Errors, informality and irregularity, 109 
 
 Judgments, nonsuits and dismissals which are not a bar,. . 109-113 
 Judgment concludes only as to issue.and necessary facts,. . 113-114 
 
 Summary applications, effect of, 114^ 115 
 
 Collusive prosecution in a more favorable court ' 115 
 
 Matters once litigated not open to second litigation 115-118 
 
 Litigated by way of defense, \\q 
 
 Or that might have been so litigated, 117-131 
 
 Splitting up demands or withdrawing them, 119-131 
 
 Acquittal of one offense, bars prosecution for another, 131-123 
 
 Admissibility and effect of j udgments, 123 
 
 When aided by parol, '......'. 124 
 
 Judgments considered with respect to parties, privies and s<mn^fra, 134-1,35 
 
 Who are privies, ' 124_]26 
 
 Who parties, real parties, \\\ 126-128 
 
 Admissibility against strangers or in their favor, ........ '. '. '. 138-135 
 
 Public proceedings, with a view to protection of' an officer^! ! 138-130 
 
 Relevancy to show rem ipsam jqq 
 
 Or particular facts against sureties, ". '. 181-134 
 
 Change of title, | _ _ jg^ 
 
 In criminal cases not admissible in civil suits 135 
 
 393 Judgments of inferior courts may be impeached for want of jwis'dic- 
 
 t'ton, 137—165 
 
 Their jurisdiction must be shown .","." 137 130 
 
 May be questioned collaterally, '.".'." 139-141 
 
 1. Jurisdiction mth respect to the subject matter, '. 141-144 
 
VOLUME TWO. XXXIX 
 
 No. PAOS. 
 
 2. Jurkdiction mth respect to tTie person, 144r-146 
 
 3. Jurisdiction mtli respect to process, 146-148 
 
 4. Jurisdiction mth respect to other prescribed modes of proceeding,. . 148 
 
 5. Jurisdiction with respect to time and place of holding the court or 
 
 doing the act, 148 
 
 6. Jurisdiction with respect to the constitution of tlie court, 149 
 
 Military courts, justices, etc., 149 
 
 Effect of want of jurisdiction 150-158 
 
 Protection to an officer, how far, 150-155 
 
 Judicial proceedings must be in writing, 155 
 
 Jurisdiction not presumed 156 
 
 Effect of recital of jurisdictional facts 156-163 
 
 Of the finding of jurisdictional facts, 158-163 
 
 Protection of parties and ofBcers 162-165 
 
 294 Judgments in rem in courts of Admiralty, effect of, 170 
 
 295 Effect on title to property concerned, 171 
 
 296 How far conclusive and upon what points 172, 173 
 
 297 Not on matters of inference, ' » • 173 
 
 298 As to nationality of property, 174 
 
 299 Condemnation as lawful prize, 175 
 
 300 On special grounds not legally valid, 175 
 
 301 Collateral effect of sentence on policy of insurance, 176 
 
 303 Jurisdiction indispensable to the validity of the sentence, 176-178 
 
 1. Of the res or thing condemned, 177 
 
 3. With reference to the national character of the court, 177 
 
 3. With reference to the place where it is held, 177 
 
 4. With reference to the constitution of the court, 177, 178 
 
 303 Foreign sentences confirming marriages or granting divorces 178-180 
 
 How far respected, » 178 
 
 Decisions in this country 179, 180 
 
 304 Foreign sentences in criminal cases, effect of here, 181 
 
 305 Foreign judgments sued on'here, effect of, 183-1 92 
 
 Of courts not of record, 183, 184 
 
 Generally held conclusive 184, 185 
 
 Decisions contradictory on the subject, 185, 186 
 
 Held conclusive when incidentally in question, 186 
 
 Judgments rendered in one state conclusive in the other states, 187 
 
 May be impeached for want of jurisdiction, 1 88 
 
 Or because of fraud in acquiring jurisdiction, 188 
 
 Decisions relating to such judgments, 189-192 
 
 Justices' Judgments of neighboring states, 189, 190 
 
 And decrees in chancery, 189, 190 
 
 Judgments in attachment cases, 190 
 
 Mode of ascertaining effect of judgment in state where rendered, 
 
 190,191 
 
 306 Fm-eign judgments, not valid wh^n the courts had no jurisdiction, 194-203 
 
 1. Unless the court was properly constituted, 195 
 
 3. Nor unless it complied with local law, so as to acquire juris- 
 diction 195 
 
 Distinction between courts of a limited and general jurisdiction, 196 
 3. What measures of jurisdiction a sovereign power can give, 197 
 
 Proceeding in rem or in personam, 197-199 
 
 Proceedings on attachment of property, 197, 198, 199 
 
 Personal judgments without service of process not valid, 197, 198 
 
 Effect of appearing in the action, 198-300 
 
 Proceeding against non-residents, 197-199 
 
 As between the states, 199-303 
 
 307 Proof of non-residence in a particular case, 303 
 
 308 Answers, depositions and examinations, 309-311 
 
 309 Voluntary affidavits or depositions, 211 
 
 310 Depositions obtained without giving an opportunity to cross-examine,. . 213 
 
 311 Some exceptions to rule, 313 
 
 313 In bastardy cases 316 
 
 313 Moving affidavits 317 
 
 314 Examinations on criminal charges, 320 
 
 315 Not admissible unless rendered so by statute, 331 
 
 316 Taken before coroners, 323, 224 
 
 317 Must be taken in presence of the prisoner, 227 
 
 318 Mode of taking, 389 
 
Xl CONTENTS OP AMEEICAN NOTES, 
 
 No. ' ==-^™ 
 
 320 Deposition cannot fte added to ly pa/rol, *"& 
 
 331 Application of statute in Nevy York, 235, 236 
 
 322 May be used by prisoner, 236 
 
 323 Mxamination of witness about to depart from state, 251 
 
 324 Entries and certificates made evidence by statute, 252-261 
 
 Certificates of conviction, _• ■ 253 
 
 Of marriage and their effect, 252, 253 
 
 Of official cbaracter, 253 
 
 Of independent facts, 254 
 
 Of search and of records, 254 
 
 Certificates authorized and unauthorized, 254-257 
 
 Sheriff's certificate of sale, 257 
 
 Certificate of sale of a vessel, 258 
 
 Of register of land office, , 358 
 
 Of commissioners of forfeitures, 258 
 
 Of recording deed 358 
 
 Of canceling mortgage, 258 
 
 Of surveyor of highways 258 
 
 Of trustees of religious sodety, 258 
 
 Of collector of taxes, 258 
 
 Under inspection lavrs '• • • 258 
 
 Of dravfing lottery tickets, 358 
 
 Of a j ustice of the peace, 258 
 
 Otlier-autnorised certificates, , 259-261 
 
 Of protest, &c., 259, 360 
 
 Insolvent's discharge 361 
 
 335 Inquisitions de lunatico inquirendo, and their effect, 366 
 
 326 Other inquisitions 267 
 
 327 Inquisition by sheriff to ascertain title, 268 
 
 338 What are private and what piMic statutes, 373, 374 
 
 329 Journals of Congress, and proceedings of other legislative bodies, proof of, 274 
 
 330 Proof of notice of dissolution of partnership, 276, 278 
 
 331 Examined copy of returns of parish register, 278 
 
 332 Proof of marriage in civil and in criminal cases, 279, 280 
 
 333, 334 Eegister of baptisms, not proof of day of birth, 380 
 
 335 ,v. Registers of marriage, birth, death, burial, 281, 383 
 
 336 B'egister of vessels, log-booki <&c., 285-287 
 
 337 Bankbook as evidence between third persons, 387 
 
 338 Public books as emdence, 287 
 
 339 Lloyd's Eegister of shipping, .' . . . 288 
 
 341 Poll books and registers as emdence, 289 
 
 343 Vestry books of a parish 390 
 
 343 Corporation books evidence as between members, 395 
 
 Books of banking corporations, 296, 297 
 
 Of municipal and other corporations, 396-398 
 
 344 Wlien historical books may be read as evidence, 399, 300 
 
 345 Other public books and documents admissible in evidence, 301,303 
 
 346, 347, 349 ^iqht of prisoner to copy of indictment 305, 309 
 
 348 justices of the peace to give transcript, &c., 308 
 
 350 Eight tb inspect a public book 311 
 
 351 Books of a corporation both public and private 313 
 
 352 Discovery of books granted, 315 
 
 353 Not granted in certain cases and in others granted, 315 
 
 364, 355, 356 Practice in such cases, 318, 330, 321 
 
 357 Title deeds cannot be called for under siibpana duces tecum, 321 
 
 358 Inspection of pampers, when ordered, , 325 
 
 359, 560 When not ordered, 326 
 
 361, 362 When granted and when not, 331 
 
 863, 364 Practice farther considered 333-335 
 
 365 What regarded as a recoi'd ; may be impeached for fraud, 337 
 
 Not impeachable when 338 
 
 Jurisdiction hovf established in special proceedings, 339 
 
 366 Wltat an public statutes ; from what may be read, 389, 840 
 
 367 What are private statutes ; acts public in pan, 340 
 
 868 Proof of private statutes 341, 343 
 
 369, S'70 Proof of the ea^stence of a record, m^de of, .' 343 
 
 371 Exempliflcation or proof of records by certified copies, .' 344, 845 
 
 372 The seals of courts prove themselves, 346, 347 
 
 873 What is a record ; how proved or mpplied, 347-349 
 
VOLXniE TWO. xli 
 
 No. PAGE. 
 
 374 Proof of matters of record, deed, rule of court, 349, 350 
 
 375, 376 Proof of a record or enrolled deed, 351 
 
 Where the record has been lost or destroyed, 351-353 
 
 377 Proof of records by examined or oflSce copies, 358, 354 
 
 378 Of record and papers by office copies, 354 
 
 379 Proof of imperfect records, verdicts, &c. 358-360 
 
 380 When verdict may be proved by itself, 361 
 
 381 Proof of postea, when allowed, 361 
 
 383 Proof of verdict or acquittal, 363 
 
 383 Protection of an officer acting under process, extent of , 363 
 
 Acting under process valid on its face . 363-366 
 
 Proof of judgment and execution necessary, 363, 364 
 
 As a link in title in certain cases, 364-366 
 
 An officer's right to attack a sale for .fraud, 366 
 
 • When his return becomes a record, 367 
 
 When and of what facts his return is evideijce, 367 
 
 1. As to strangers, it is prima fade evidence, 368, 369 
 
 2. As to parties, it is usually conclusive 370-373 
 
 Exceptions to the rule, 371 
 
 3. As to the officer, the return will conclude him, ....", 372-374 
 
 Exceptions to this rule, 373-374 
 
 Prima facie evidence 373, 374 
 
 4. As to purcTiasers, it must appear the law has been com- 
 
 plied with, 374, 375 
 
 Eeturn may not be altered by parol, 375 
 
 5. As to amendments, when return may be amended, 376 
 
 6. As to the mode of proving a return, 376, 377 
 
 3F4 In suits hy an officer against a bailee oi' receiptor, 377 
 
 385, 386 Proof of v>rit"of execution or other process, 377, 378 
 
 Commencement of suit 378 
 
 387, 388, 389 ■ Of records and judicial proceedings 378, 379 
 
 390, 391, 393 Of decree and decretal order in equity, 279, 380 
 
 393, 394 Of an answer in chancery 381 
 
 396, 397, 398 Of depositions in chancery, 383 
 
 399 Of depositions in chancery and in other cases, 384 
 
 400, 401, 402 Of depositions— continued, 385 
 
 403 Becords sent upon certiorari, 386 
 
 Proof of jecord under a plea of nul tiel record, 386, 387, 426 
 
 404 Judgments and their effect as evidence, 387-389 
 
 Evidence only of facts necessary to uphold them, 388 
 
 When jurisdictional facts must be proved, 389 
 
 405 When minutes of court admissible in evidence, 389 
 
 Or transcripts from public offices 389, 390 
 
 406 Entries of inferior courts and judicial officers, when admissible,. . . 390, 391 
 
 Entries by justices of the peace, 391 
 
 1. Proof of the justice's proceedings before himself, 393 
 
 3. Elsewhere, 392 
 
 Transcripts of judgments, 393, 398 
 
 3. His proceedings may be proved by his own oath, 398 
 
 4. Proof of his proceedings after his death, &c., 394 
 
 5. By secondary evidence or by parol, 395-398 
 
 Review of the cases 396-398 
 
 407 A decree in admiralty admitted mthout shovAng prior proceedings, . . . 399 
 
 408 An award concludes the parties like a judgment, 400-418 
 
 It extinguishes the demand, 401 
 
 The conclusiveness of the award depends on the submission, 401, 411 
 The award presumed to be within the terms of the submission,. . 403 
 
 When considered within the terms, 403-404 
 
 Must be final, certain and mutual 404, 405 
 
 Should be made with notice, &c., : 405 
 
 It may be shown that the submission was revoked, 406, 407 
 
 Binds parties and privies only, 407 
 
 Authority to submit to arbitration, 407, 408 
 
 Whether an award should be pleaded, 408 
 
 On matters relating to real estate, 409, 410 
 
 Relating to boundaries, 410, 411 
 
 409, 410 The submission must be proved, 413 
 
 The award cannot be varied by parol, . . . ., 414 
 
 411 Foreign judgment, mode of proving, 416 
 
 Vol. t 6a 
 
xlii CONTENTS OF AMEEICAN NOTES, 
 
 413 Under statutes of New York, 'AiirAln 
 
 Mode of authenticating copy of record, • 41 '-4^" 
 
 Proof of seal of court, & tJMoq 
 
 How proved as "between the several states, aoq 
 
 When proved under the act of Congress, • • ■ 4^° 
 
 1. . The attestation of the cleric, '^^> 4|4 
 
 3. T7ie seal of the cov/rt, if there Se a seal, -. • 4*4 
 
 3. The em-tijicate of the judge, chief justice, or presiding "WW- 
 
 f^p^^Q 434-427 
 
 Proving the existence of the record, 386, ^^'^' j^^^-^l^ 
 
 413 , Foreign laws, mmt be proved, mode of proving, f28-4d5 
 
 Laws of another state, must be proved, Aon aH 
 
 Proof of the imiten laws of a foreign country, 4d0, 4d5 
 
 Of another atji-te 431, 4oa 
 
 Proof of the unwritten laws of another state or country, ff^~foR 
 
 414, 415 Proof of foreign practice and public documents, 435, 43fa 
 
 416 Proof of p'Ubtte writings, of entries in puhhc Hooks, &c., 443, 444 
 
 By office or certified copies, ■ 443, 444 
 
 417 What are not public books, 444, 395-398 
 
 418 Proof of books and records in public offices in other states, • . 445 
 
 419, 420 Pooof of yyills relating to personal property 448, 449 
 
 431 Of -syills relating to real estate, 451 
 
 433 Proof of the issuing of letters tMamentary, or of administration, 453-454 
 
 433 What does the law consider a seaZf, ^^^cl 
 
 In the different states, 455, 45b 
 
 One seal may be used by several persona, 457 
 
 Where the seal is used in another state or foreign country 457 
 
 Seal of a corporation, proof of, 457 
 
 424 Proof of private writings .' 459 
 
 By the 3ui3scribing witnesses, 460 
 
 Wiioaresucii, ■ 460,461 
 
 435 Requisites of a deed, its execution and delivery, 461 
 
 Origin of grants in writing 461, 463 
 
 Tiie origin and early use of the seal, 463-465 
 
 Delivery of the deed, 465 
 
 Eequisites of certain deeds, 467 
 
 436, 42'? When the subscribing witness must be called, 468, 469 
 
 And when he need not be called, 469 
 
 438 Proof of instruments coming in question collaterally, 470 
 
 429 Deeds and instruments executed under a power, the power must be proved, 471 
 
 Public and statutory powers, how shown, , 471 
 
 Illustration by cases 473 
 
 Tax titles, 473, 474 
 
 Other conveyances, 474, 475 
 
 430 Ancient deeds, over 80 years old, proof of, 475-480 
 
 Corroborated by possession under it,,." 475, 476, 480 
 
 Length of possession under it required, 477-4S0 
 
 431 Other ancient writings produced from proper custody, 481 
 
 433 Ancient deed, proof of where it appears to have been erased or inter- 
 lined, 483, V. I, p. 606, 007 
 
 433, 434, 435, 
 
 436 Effect of an apparent erasure or alteration, 483, 484 
 
 437 When a writing obtained from the opposite party must be proved, . . 486 
 
 438 Where the subscribing uMness cannot be called, or is incompetent, 490-493 
 
 Proof in such cases, ■ 490, 491 
 
 Where the witness subscribed by his mark, 492 
 
 439 Where the subscribing uritness becomes incompetent, 490-493 
 
 440 Where the subscribing witness cannot be found, 493-497 
 
 What absence lots in proof of his signature, 493 
 
 What search for him must be made, 493-497 
 
 441 Where tlie instrument purports to be, but was not, attested by a sub- 
 
 scribing witness,. . . , 499-508 
 
 The witness must be called if he can be found, 600 
 
 Resort to collateral circumstances 501-503 
 
 442 Who are not regarded as subscribing witnesses, 460, 503 
 
 Effect of witnegs' failure to prove instrument, 603 
 
 Where he recognizes his signature, but has no other recollection, 604 
 
 443 Handwriting of party need not be proved, 505 
 
 Though thut is the proper mode of corroborating the proof, 506 
 
VOLUME TWO. xliii • 
 
 No. " PASE. 
 
 Proof of *6 identity of the party; 506, 507 
 
 444 No proaf of identity reqmred in the first instance, 507, 509 
 
 445 Party must prodiutee oHginal instrument if in Ms possession, ...'.. 510-514 
 
 Must produce it or account fo* it, 510 
 
 Where it need not be produced, 511 
 
 Where the contents are disclosed on cross-examination, 511, 513 
 
 Cannot prove contents without producing it, ... , 512 
 
 Where it •omes in collateraHy, ; 513, 514 
 
 Objection to parol evidence. When taken,- 514 
 
 446 Contents may be proved where the original cannot he prodticed, 514r-519 
 
 Not always necessary to show its loss or destruction, 514r-516 
 
 Voluntary or fraudulent destruction, 516 
 
 Mode of proving loss, &c., 517, 518 
 
 447 Notice to produce gbren to adverse party, £iji9 
 
 Use of writing so produced, ; 519 
 
 448 Proof of its possession by the adverse party, 520 
 
 Operation of such iiotice, ; 521 
 
 449 The party to be notified, privity vrith others, 523 
 
 450, 451 Subject continued ." 523 
 
 453 The rule the same in criminal as in civil cases, 524 
 
 453, .454 Notice and proof of giving the same, 525, 526 
 
 455 Notice must be reasonable as to time, 528 
 
 456 Service and form of the notice, 539, 530 
 
 457 Effect of a failure to produce on notice, 531, 533 
 
 458 Mode of proving instrument by secondary emdenee, 533, 534 
 
 Proof of its execution, 533, 533 
 
 No degrees of secondary evidence, 533, 568 
 
 Sufficiency of proof, 534 
 
 459 Refusal to produce books and papers, effect of, 536 
 
 Presumptions in aid of proof of contents, 536, 537 
 
 460 Effect of calling for a paper and inspecting it, 537, 538 
 
 461 When no notice to produce is necessary, 589 
 
 The suit itself being notice, 539 
 
 Notice of dishonor, 540 
 
 463 like rule in criminal cases, 541 
 
 463 Where a copy mil be treated as an original, 543 
 
 46,4 Where papers are fraudulently concealed, 543, 544 
 
 465 A counterpart may be proved. 
 
 466 A notice to prdduce a notice not necessary, 544 
 
 Limitation of the rule, 545-547 
 
 467, 468, .469 No notice required to produce certain notices, papers, &c., 547-549 
 
 470 Notice required in the case of ^ deed, 551 
 
 471 What a sufficient search for a lost document, , . 553 
 
 472 Pres.umption .of loss in the case of a useless paper, 554 
 
 473 Proof of loss and of due search 559-566 
 
 Circumstantial proof of loss, 559, 560 
 
 Places to be searched, 560, 561 
 
 Persons to be called, '. 563, 564, 566 
 
 Search must be thorough, 564 
 
 For negotiable securities, 566 
 
 474 Secondary proof, by sworn copies, 568, 569 
 
 475 Of letters 573 
 
 476 By recitals in a deed, 574-576 
 
 How far the recital will bind, , 575 
 
 .477 Testimony from minutes or memoranda, 577 
 
 478 Proof of deed, by examined copy of the registry, 583 
 
 479 Proof of recorded deeds and other instruments, 583-595 
 
 Acknowledgment and recoTCling, 583, 584 
 
 Recorded deeds and other instruments provable by record, 584, 585 
 
 Certificates of acknowledgment, 585-587, 589, 591 
 
 Place of record, 591 
 
 Acknowledgment of instruments other than deeds, 591 
 
 . .Bya. notary, 594,595 
 
 480 Proof of liandmiting, witness must have knowledge, 597 
 
 Degree of toOwledge required, 597,598 
 
 . 481 Knowledge derived from correspondence and authentic papers, 599, 600 
 
 483 No distinction .bet\veen proving and disproving handwriting, . . 604^-609 
 
 The handwrititig may be disproved without "calling writer, 605-607 
 
 Testimpfly pf e.xperts as . to genuineness, 607 
 
>xliv CONTENTS oi" AMEEICAN NOTES, 
 
 No. PAQB. 
 
 As to whether the hand be natural or disguised,. 607-609 
 
 Comparison of hands, 608 
 
 483 How far a comparison of hands allowed, 610-614 
 
 Two papers in evidence may be compared, 611 
 
 Decisions in different States, 611-614 
 
 484 Principle on which comparison is permitted, 615 
 
 485 In reference to ancient writings, ' 618, 619 
 
 486 Pa/rol emdenee admissible to interpret instrument, .» 638-640 
 
 Not to show intent independent of instrument, 638-640 
 
 487 The same rule applies to deeds and wills, 644 
 
 Extrinsic facts may be proved, 644-647 
 
 Parol evidence admissible to show a deed intended as a mortgage, 647 
 
 Such evidence applicable to other instruments, 647-651 
 
 488 Inadmissible to vary the terms of a bond 651 
 
 489 Admissible to siow real consideration of an instrument, 653 
 
 Or failure of such consideration, 653 
 
 Mere receipts may be contradicted or varied, 653, 653 
 
 Not so when they embrace contracts 658, 654 
 
 490 Parol emdence admissible to vary receipt m a deed, 655 
 
 Allowed in certain actions for certain purposes, 656 
 
 Divers other considerations, 657, 658 
 
 491 Injury allowed as between strangers, 658 
 
 493 In regard to date of deed and time of delivery, 600 
 
 Mode and proof of delivery, 660-664 
 
 Acceptance of deed, 663 
 
 Actual delivery presumed, when, 663 
 
 Cannot be recalled 664 
 
 498 Additional compensation, right to, not proved by usage, 665 
 
 494 Parol eiMencenot admissible to contradict or vary written instrument, 
 
 665-673 
 All prior stipulations presumed to have been incorporated in it,- 
 
 665-667 
 
 No terms or conditions can be added, 667-669 
 
 Uncertain or incomplete terms may be explained, 669-673 
 
 A warranty may 'be proved though not in a bill of sale, 673 
 
 May show fraud or purpose of instrument, 673 
 
 495 Parol emdence admissible as to conMder'ation of promissory note, 678-676, 
 
 691 
 To show want of consideration, though given for value received, 673 
 
 That it was not delivered or duly made, 674 
 
 That its delivery was conditional, 674-675 
 
 But not to vary its terms by cotemporary agreement, . . . 675, 676 
 
 496 Not admissible to add warranty to written conditions of sale at 
 
 auction, 679 
 
 497 Nor to vary a contract required to be in Writing, 680 
 
 498 Admissible to show consideration usurious, 683 
 
 Or to convert a deed into a mortgage, 683 
 
 499 Admissible to explain an ambiguity, 683 
 
 Or to add a consistent circumstance, 684 
 
 500 Admissible to show illegality and fraud 684,685 
 
 ■ 501 Admissible to show fraud in execution of instrument, ' 685 
 
 5u3 Strangers to instrument may inquire freely into transaction, 686 
 
 Parties and privies cannot allege their own fraud, 686 
 
 Fraud in execution may be shown, 687 
 
 Or in delivery, 688 
 
 Conditional signing of a joint and several bond, ' 688 
 
 603 How far the considertition of a deed is open to inquiry, 689 
 
 In voluntary and other conveyances 690 
 
 504 Parol evidence admissible to show in what capacity tlie maker signed a 
 
 promissory note, ggj^ ggg 
 
 605 Admissible to show accord and satisfaction of a specialty,. .". ' 693 
 
 Or that it was abandoned or discharged by an executed parol 
 
 agreement, 693, 693 
 
 To extend lime of performance, &c., 694 
 
 506 Terms of statute respecting sale of lands, '.','.'.. 695 
 
 607 Admissible to extend time of performance, .', 698 
 
 By a subsequent agreement, 696 
 
 508 Parol emdence not admissible in eauity to vary, &c., written agree- 
 
 "lents, : 698 
 
, VOLUME TWO. iIt 
 
 No. PAOI. 
 
 Belief against mistakes, 698, 699, 700 
 
 Against fraud, &c., 699-701 
 
 In equity to add to, vary, &c., written instruments in respect to 
 
 purchasers, 701 
 
 To make out a trust, &c 701-703 
 
 Joint purchasers of real estate, 703 
 
 Or for partnersliip purposes, ^ 703, 704 
 
 To fix construction in favor of a family, 704 
 
 To show execution of a covenant to settle real estate, 704 
 
 Or payment of a debt hy a legacy, 704, 705 
 
 Or an advance made on a portion, 705, 706 
 
 Equitable presumptions, legacies, surplus, 706-708 
 
 509 What omissions in an instrument may be supplied 716 
 
 Names, dates and words,? i 716, 717 
 
 510 Pa/rol evidence admissible to identify persona or things, 718-734 
 
 To aid in interpreting wills and other instruments, 719 
 
 To show situation of subject matter, 719-733-736 
 
 To identify persons 733-734 
 
 Of usages or custom to control the meaning of terms, 736-733 
 
 To interpret words and phrases, 736-730, 733, 787 
 
 Extent and nature of the usage, provable, 730-733 
 
 Mercantile and other technical terms, 733, 734, 800 
 
 511 To show subject matter and object 6f devise, 735 
 
 By its description, i 735 
 
 613, 513 In aid of description, 735, 738 
 
 514 Parol evidence where the instrument refers to extrinsic facts, 739 
 
 General application of the rule, 739-743 
 
 Where one writing refers to another, , 739-741 
 
 To a plan or instrument, 741-743 
 
 515 Admissible to explain ambiguities, 747-750 
 
 Distinction between patent and latent ambiguities, 747-749 
 
 516 Admissible to show cotemporaneous circumstances, 751 
 
 Not as direct prgof of intention, 751, 752, 755 
 
 Nor where the instrument is void for uncertainty, 758 
 
 In explanation of particular terms, execution, &c., 754 
 
 Of abbreviations and memoranda, 755 
 
 Where the language applies equally to two things, 756, 761 
 
 To identify the person named as devisee, 756-759 
 
 517 To apply notice of dishonor to note or draft, 761 
 
 518 Parol admissible to apply language to the subject matter, 761 
 
 To show which of two of the same name was intended, 761 
 
 In application of the description, 763 
 
 Declarations, &c., evidence to show intention, 763-766 
 
 519 Parol evidence admissible to show the person meant by particula/r name, 
 
 769-775 
 
 Extrinsic evidence indicating the person, 769-774 
 
 Showing a mistake in the name, 770-774 
 
 Not to fill a blank with a name 774 
 
 520 Extrinsic evidence to apply an inaccurate description, 783 
 
 y Where a part is repugnant to the residue, ' 783, 786 
 
 531 Of usage to interpret meaning of terms; 787, 800 
 
 Not where contract is explicit, 787, 788, 789 
 
 532 Parol evidence annexing incidents to a lease, 791 , 793 
 
 Not where the terms of the lease exclude them, 793, 793 
 
 533 Admitted to fix the term in certain cases, 794, 795 
 
 524 Not admissible to vary plain terms of policy 798 
 
 525 Admissible to explain commercial terms, 800, 801, 787 
 
 536 • Of usage to explain ancient instruments, 803-804 
 
 And rights held under them 803, 804 
 
 537 Of an illegal custom not admissible, 805 
 
 538 Attendance of witnesses, secured by svJbpcena,. 806 
 
 539 Form of the subpoena, service and proof thereof, 806-808 
 
 Attachment, &c., for non-attendance, 808-811 
 
 530 Witnesses' fees for attendance, , 811 
 
 Taxation of witnesses' fees, 813-814 
 
 531 Subpoena duces tecum, service of,. 814 
 
 Obedience to, required, 814, 815 
 
 532 Notice to produce required, as a preliminary, 815, 816 
 
 533 On whom notice to be served,.' 816 
 
Xlvi CONTENTS OF AMBEICAN NOTES, 
 
 No. I'AeK- 
 
 534 Preventing or attempting to prevent attendance of witneBs, 817 
 
 535 Number of witnesses included in subpoena, 818 
 
 536 Manner of serving subpoena, 819 
 
 537 Time of serving , 819, 881 
 
 538, 539 Witness's privilege from arrest -svliile attending, 820, 831 
 
 540, 541 Extent of iis privilege, 831 
 
 542, 548, 544 His privilege and remedy for tte violation of, 832 
 
 545 Where the witness is in custody or under command, 833 
 
 546 Form of the writ in such case, and to whom directed, 823 
 
 547 Affidavit on which to obtain writ, 828 
 
 548, 549, 550 
 
 551 Allowance, form and execution of the writ, 824, 825 
 
 553 Practice to obtain attendance of witness 825 
 
 553 Allowance of writ of habem corpus ad testificandum, 826, 827 
 
 55.4 The witness, though present, need not be sworn, unless his fees be 
 
 paid, 827, 828 
 
 553 May be attached for non-attendance, 829-833 
 
 Proceedings to obtain, 831, 832 
 
 556, 557, 558 An action may be maintained for his non-attendance, 833, 834 
 
 559 Attendance in criminal cases, 834 
 
 560 Security for appearance, 835 
 
 561 Foreign or poor witnesses to be paid,. 836 
 
 5.63 Power of magistrate to compel attendance,. 840 
 
 568 Statutes of New Xork relating to, 841,842 
 
 564 Mode of securing testimony in United States courts, 843-846 
 
 Taking of testimony de bene esse, 844r-846 
 
 Under. the statutes of New York, 846 
 
 1. In perpetuam rei memoriam, 847 
 
 3. Deieneesse, 848 
 
 . 3. Where the witness resides beyond the State, 849, 850 
 
 565 Posponement of trial, practice in relation to, 859-871 
 
 The court exercises a legal discretion in postponing trial, 860 
 
 Practice in respect to, , 861-863 
 
 What deemed a first application, 863 
 
 Exercise of diligence to be shown, 864 
 
 Putting over to the next court, 865 
 
 To await return of commission, 866 
 
 General subject continued, 866-871 
 
 .5.66. Form of oath not material unless objected to, 872 
 
 567 Competency presumed, 873 
 
 5.68 Voir di/re, right to examine upon, 873 
 
 5.69 Eange of the examination upon, 873-876 
 
 570 Order of trial, of introducing testimony, 878-885 
 
 Examination of a single witness, 878 
 
 All affirmative evidence to be first introduced, 879 
 
 And then the same in the negative, followed by rebutting 
 
 proof, 879-883 
 
 Testimony admissible out of its order, when, 882-884 
 
 Witnesses not able to speak English, " 888 
 
 ■ Where defendants appear sepai'ately, 884, 885 
 
 571 When witnesses may be ordered to withdraw .'...' 885 
 
 Practice, how regulated, 886, 887 
 
 573, 578 What are leading questions ' ggj! 
 
 574 When most objectionable, 889 
 
 675 When introductory and admissible,. . .' 890 
 
 576 May be allowed in judge's discretion, 891 
 
 In the exercise of a legal discretion, 892 
 
 577 Leading to contradict former witness, " . | ." 893 
 
 578 Witness compelled to produce loriting or pa/per , \\ 896 
 
 Whether and when so bound, a question for court, '. . . . 896-898 
 
 Not bound in certain cases to^produoe under a subpoena duces 
 
 tecum, ggy^ ggg 
 
 579 May be called to produce papers without being sworn, ' 899 
 
 580 Irrelevant questions inadmissible to lay the foundation for contra- 
 
 dicting witness, ggg 
 
 581 What questions are relevant for such purpose, 902-905 
 
 583 Right of cross-examination, extent of, ."'.".' 90(5 907 
 
 Poes not continue when witness is afterwards called by tlie oppo-' 
 site party, gOg go7 
 
VOLUME TWO. xlvii 
 
 No. PAGE. 
 
 683 Limit to the ■nght of cross-exainijiation, 908 
 
 Mode of conducting it, 908, 909 
 
 584 JRe-examination, rigJit to, 910 
 
 585 Mode of testifying, impressions, 916 
 
 586 Witness may use a diagram, '916 
 
 587 Or a memorandum, 917 
 
 How far lie may use the same, 918-934 
 
 588 Privilege of witness riot to answer when the answer may tend to crim- 
 
 inate him, 939 
 
 589 Application of rule, questions tending to criminate, 930-933 
 
 Tending to degrade liim, 933, 933, 939, 940 
 
 590 In equity need not subject himself to pains or penalties 937 
 
 591 Cannot excuse himself from answering on ground that his answer 
 
 will subject him to civil suit, 938 
 
 593 jSTeed not answer degrading questions, 939 
 
 593 Where they are irrelevant, 940, 943 
 
 But must answer where they are relevant, 940, 941 
 
 594 Irrelevant degrading questions by way of impeachment,. . . . 945, 946 
 
 Need not be answered, , 945 
 
 595 Witness may answer questions tending to degrade Or to criminate, 94B 
 
 It is not the party's, but his privilege to object 946, 948 
 
 596 If iiTelevant impeaching questions be answered, the answer is final, 
 
 960-953,954 
 
 Mode of impeaching witness on cross-examination, 951 
 
 Moral character of witness, 953 
 
 597 Denial by the witness concludes, 953 
 
 598 Impeaching mtneas' general character for mraeity, 956-958 
 
 What is general character, 956 
 
 Mode and extent of the inquiry, 957, 958 
 
 Number of impeaching witnesses and their cross-examination,,. . 958 
 
 599 Illegal testimony not admitted under pretense of cross-examina- 
 
 tion, 963 
 
 600 Witness may le contradicted, so as to impeoBi Mm 975-980 
 
 May be impeached by proof of particular facts,, 975 
 
 Mode of discrediting the witness, 976-978 
 
 Previous contradictory stsJtement, 979, 980 
 
 Corroborating witness 980 
 
 601 Cannot be discredited by party calling him, 983, 988 
 
 602 Party may disprove a fact Sworn to by him, 983 
 
 603 Same rule in criminal cases, 987 
 
 604 The party calling cannot discredit a witness by general evidence, . . 988 
 
 605 Rule when party is misled by the witness, 995 
 
 606 Bill of exceptions, turning case into, 996 
 
 607, 608, 609 Statute on the subject, &c., 996, 997 
 
 610 BiU of exceptions in criminal eases, 997 
 
 611 Not allowed on bastardy proceediilgs, 998 
 
 613 Nor in certain cases specified, 999 
 
 613 In case of feigned issue, 999 
 
 614 Where it lies, 1000-1Q07 
 
 To the charge of the judge, 1000,1001 
 
 Not to matters of pure discretion, 1001 
 
 Time and manner of excepting 1003 
 
 Form of the bill and its contents, 1003-1005 
 
 Signing of and sealing, 1005, 1006 
 
 When it operates as a stay, 1006 
 
 Need not now be signed Or sealed, 1007 
 
 615 Demurrer to emdence, joinder in &c., 1009, 1010 
 
 Refusal of court to require a joinder in, 1011 
 
 616 
 
 617, 618 BiU of exceptions, old practice as to, .'. 1013 
 
CONTENTS OF AMERICAN NOTES. 
 
 ViDLFME in. 
 
 No. Page. 
 
 619 Competency of luitnesses; common law rule 1 
 
 Common law rule not applicable in prize cases, 1 
 
 630 Mere interest or bias does not exclude, 1-6 
 
 631 A legal interest will exclude, 6 
 
 What regariied as sucli, • 6-8 
 
 633 What interest disqualifies a witness, 13, 14 
 
 633 Illustrated by cases, 14-31 
 
 634 Members of corporations are interested for, 31 
 
 635 Guarantors for their principals, 31 
 
 036 When interest balanced, and when not, 31-37 
 
 637 A party's bail is interested for him, 37 
 
 628 Wife incompetent, if husband interested, 38 
 
 639 Bail may be rendered competent, 38 
 
 630 BxtinguisMng.^>r neutraUmig interest, 39-41 
 
 631 One jointly interested not competent for the others, 43-44 
 
 632 Principal not competent for his surety 44, 45 
 
 633 A pa/rty interested in a fund or answerable over, is interested 45-51 
 
 634 Exaniples relating to real estate, 54 
 
 635 A conditional interest, 55, 56 
 
 636 When it will disqualify 55, 57 
 
 637 Witness not competent,, if liable for result, 60 
 
 638 As deputy to the sherifif, 61 
 
 639 Or if he will gain by the event 63-64 
 
 640 Competent if he vyill not gain or lose, 66 
 
 641 An agent when competent for principal, 67 
 
 643 Parties to commercial paper, when competent, 69-74 
 
 643 When an agent not competent, 74 
 
 644 When an attorney is not competent, 75 
 
 Cases of joint liability, 75-78 
 
 645 Competent though morally interested, 81, 83 
 
 An implied interest 83 
 
 ■ 646 When an agent is interested and when not, 86-88 
 
 647 Where he has become liable 88 
 
 648 Effect of witness believing himself interested, 90 
 
 649 Of an honorary obligation, 91 
 
 650 An equal or balanced interest, 91, 92 
 
 651 In parties to commercial paper, 94^95 
 
 653 Inhabitants of town competent, when, ^. ..." 97 
 
 653 Informers entitled to penalty, ?! . . . 99 
 
 654 Inhabitants, interest of, .......! 103 
 
 655 Exc&ptions to rule of interest at common law, '.'.'.'.'...'.'.'..'.. "io6-lll 
 
 From necessity, 106 
 
 Agents as witnesses, 107, 108 
 
 Trustees, '.....' 110 
 
 Servants, ; . . . . ilO 111 
 
 656 Collector of taxes for state, ; ...'............'..'. 'lU 
 
 667,658 Merely citations, ...........,..'...'...,..'. 113 
 
 659 Effect of witnesses' acquiring an interest ' iie-llS 
 
 Mode of objecting on ground of interest, see text, 119, 120 
 
 Of restoring competency, text,.... 120, 121 
 
VOLUME THEEE. 
 
 xlix 
 
 No. PAGE. 
 
 Competency of witnesses under Code of Procedure in New York, text, 
 
 131-134 
 
 Under recent statutes in United States Courts, .134 
 
 In many of tlie states, 135-140 
 
 680 Variances in actions on bills and notes, 141 
 
 681, 682 Instruments not deemed negotiable, 143 
 
 683, 684, 685 Effect of misdescribing com ract, 143, 144 
 
 6f 6 Performance to be averred, 144 
 
 687 Allegation of value received, matter of description, wben, 144 
 
 688 Mode of alleging acts done, papers executed, 145 
 
 689 Time of acceptance 146 
 
 690 Misnomer — what not so regardipd, 146 
 
 691 When held fatal, 147 
 
 693 Mis-spelling does not change name, 147 
 
 693 Stamp required on notes and papers, 151 
 
 694 Effect of an alteration in hill or note, 153, 158 
 
 695,"696 " " ' In bills, notes and other instruments, 153-157 
 
 "697 Alteration with assent 157 
 
 698 Proof of loss or destruction, 157 
 
 699' Proof of condition, when lost '. 157, 158 
 
 700 Recovery upon lost instrument, 158 
 
 701 On bills severed for transmission, 158 
 
 703 English and American remedy on lost instrument 159 
 
 703 Mode of proving loss 159 
 
 704 When consideration of note to be proved, 159-163 
 
 705 Effect of blanks left in it, 163 
 
 When consideration to be proved, 163-165 
 
 706 What calls for such proof. 165 
 
 707 Consideration open to inquiry between original parties 166 
 
 708 Want of, when not available ' 108, 169 
 
 Giving value, evidence of good faith, 169 
 
 709 Order of proof, 170 
 
 710 Want of good faith, proof of, 170 
 
 711 Conditions, guaranty, &c., 171 
 
 713 Indorsement of void note 171 
 
 Illegal in part, 171 
 
 713 Cumulative evidence may be receivedj 172 
 
 714 Mode of proving agency, 173 
 
 715 Partnership paper, 173 
 
 716 Attesting witness to notes, 'wlien need not be coiled, 173 
 
 717 Admissions received to prove 174 
 
 718 Admissions in an offer to settle, 174 
 
 719 Admissions by partners 175 
 
 730 Acceptances to be in writing, 176 
 
 731 A conditional promise to accept, valid, .' 176 
 
 733 Acceptance made by an agent, 176 
 
 723 A promise to accept, when it becomes an acceptance, 177 
 
 734 Payment in counterfeit notes, 179, 180 
 
 735 Conditional acceptances , 180 
 
 726 Payable at a particular place, lol 
 
 727, 728 Demand in such cases, : 181 
 
 729 If the place of payment be closed 183 
 
 730 An unstamped instrument to prove demand, 184 
 
 731 Notes, proof of money had and received 185 
 
 732 Of money paid, 185 
 
 733 Ofmoneylent, 186 
 
 734 Competency of drawer for acceptor, 187 
 
 735 An offer to pay admits making of note 187 
 
 736 Accepting admits drawing 188 
 
 737 Bat does not admit indorsement, 189 
 
 738 Proof of indorsemeni 189 
 
 739 Indorsement by wife or agent 189 . 
 
 740 Possession is proof of title '. 190 
 
 741 An indorsement in blank, effect of, '.,\ 190 
 
 743 When the paper is payable to bearer ! , 191 
 
 743 An agency to draw or indorse, proof of, , 192 
 
 Title from indorsement '. .^,'. ..' ..,'.'.'. 1S2 
 
 744 Title may be deduced through all indorsers ','.,'.'..'..'. 193 
 
 745 A note evidence under money counts,. .. . " . 193 194 
 
 Vol. L 7a "" 
 
1 CONTENTS OF AMERICAN NOTES, 
 
 No PASE. 
 
 • ' 746 Not in favor of indorsee against acceptor • • • 194 
 
 747 Deela/rations of a former owner, -not admissible, , i nir 
 
 748 Not received even as part of res gestce, 19^ 
 
 749 Cites authorities on question of competency, • ■ 198 
 
 750, 751 Do the same, 198, 199 
 
 753 Indorsement of note not negotiable, effect of, ^uu 
 
 753 Action hy indorsee |*^^ 
 
 754 Immediate indorser liahle, though paper void, 301 
 
 Party transferring liable, "01 
 
 755 Proof of demand of payment, 201 
 
 756 Where not necessary, """ 
 
 757 Necessary to charge indorser, 203 
 
 Efiect of removal, 203 
 
 Must he made at place of payment, 303-304 
 
 758 Presentment for aoeeptoMce necessary if bill payable a certain time 
 
 after sight, -.-.;•,,- 304 
 
 759 Payment of note to be demanded when due, 305, 306 
 
 760 Bills payable after sight to be presented without any unreasonable 
 
 delay, 306 
 
 761 Soof checks, 307 
 
 763 Which are payable on demand 307, 308 
 
 763 Presentment at 8 P. M. is good 309 
 
 764, 766 At place named necessary 309 
 
 If practicable, 310 
 
 765 At maker's house, if he has removed, 310 
 
 Unless he is gone out of the state, 310 
 
 767, 768 Notice of dishonor to be given, 211, 313 
 
 Object and requirements of, 311, 313 
 
 769 Who may gime the notice,. .: 313 
 
 770 Not a stranger, 313 
 
 771 Time given for notice from one party to another, 313 
 
 773 'Notice to family or representatives of deceased party 213 
 
 773, 774, 775 Within what time notice should be given, 313, 214 
 
 776 When served by mail, 214, 315 
 
 777 Action after demand and notice, accrues when, 315 
 
 778, 779 Protest and notice, proof of, 216, 217, 218 
 
 780 Memorandums, effect of, 318 
 
 781, 783, 783, 
 
 784, 785 When notice must and when need not be given, 319-221 
 
 786 Diligence required to discover party, 231, 233 
 
 And his place of residence 221, 323 
 
 787 When promise of payment admits notice 333 
 
 788 So does part payment, 224 
 
 789 ^ Protest of foreign bill is necessary 334 
 
 790 Not so of notes and inland bills 225 
 
 791 Form of notice of protest 225 
 
 793 Evidence under money counts 220 
 
 793, 794, 795 Competency of parties as witnesses, 227, 228 
 
 -, 796 Drawer's action against acceptor 229 
 
 797 Receipt on back of bill, eff'ect of, 229 
 
 798 Bill payabTe to drawer's order, 230 
 
 Special indorsement, 330 
 
 799 Drawee of check, 231 
 
 800 Proof of agency, \\ 231 
 
 801 Agency presumed from acting iik such 233 
 
 803 Representations may be proved orallv, 233 
 
 803, 804, 805 . 
 
 806 When mage may be proved to modify policy 234 
 
 807. An insurable interest— what is '. 335 
 
 808 Title papers by assignment of bill ol' lading, "..."...'...'.'..... 386 
 
 809 Proof of interest in cargo, !!."!!.!! 337 
 
 810 When bill is to order of shippers, !!!!!'.!'. 238 
 
 811, 813 Ownership of vessel, proof of, ......'.', 289 
 
 813, 811 Effect of registry, 289 340 
 
 814 Interest in and insurance on froiglil ' 341 
 
 815, 816, 817 Nature and extent of interest,, . .^ !. . 34i,242 
 
 818 Subject continued 343' 344 
 
 819 Change of Interest .244, 245^ 346 
 
 820, 831 Proof of loss insured againM, 347' 349 
 
VOLUME THEEE. 11 
 
 No. rAGB. 
 
 833 Admission by payment into court, ........ 248 
 
 823 Abandonment— proof of, 250 
 
 824 Foreign sentence in admiralty, , 251 
 
 825 Barratry, what is, proof of loss by, 252, 253 
 
 836 Stranding, voluntary, &c., 353 
 
 827, 838 Amount of loss 254, 355 
 
 839 Amount of loss — valued policies, 355 
 
 880 Overvalued, fairly or fraudulently 257 
 
 831 Earning freight under : 257, 258 
 
 832 Abandonment, right of, and its exercise, 258, 359 
 
 833 Subject continued, 359-261 
 
 834 What a total loss 261 
 
 835,836 Abandonment, how made, 261,362 
 
 837 Recovery limited, if loss but partial, 263, 263 
 
 838 Adjustment of loss hy hroker, 363, 264 
 
 839 Adjustment not conclusive, I. 265 
 
 Foreign held conclusive, 265 
 
 840, 841 Warranty, what so deemed 266 
 
 843 Of nationality by description, .- 267 
 
 843 Foreign sentence, effect of, .' 367 
 
 844 Misrepresentation, proof and effect of, 368 
 
 845 Duty to communicate information. 
 
 Affecting peril, 369, 370 
 
 Concealment, 270 
 
 846 Good faith in procuring policy, 370 
 
 847 Opinions admissBU in matters relating to Marine Insurance, 371-274 
 
 Extent to which they are received, i 271, 272 
 
 848, 849 Wltat representations are material 374 
 
 840 Policy presumed to contain contract, &c., 275 
 
 Presumption as to seaworthiness, 275 
 
 Representation, when admissible 375, 376 
 
 851 Subject continued, 377 
 
 853. 853, 854 Evidence on question of seaworthiness, 277-280 
 
 855 Effect of a survey 379 
 
 866 An illegal voyage, proof of, 279 
 
 857 That the voyage was not illegal, 280 
 
 858 Deviation; justifiable if necessary, 380 
 
 859, 860, 861, 
 
 863 Competency of witnesses in insurance suits, 281-283 
 
 863 Captain's protest, effect of, 383 
 
 864 Plaintiff recovers according to case, 384 
 
 865, 866 Use and occupation, evidence to support, 384, 385 
 
 867 Where premises are destroyed by fire, 387 
 
 Assignment, assignee liable, 387, 388 
 
 868 Pledgee of rents— his rights, ; 388 
 
 869 Proof of tenancy — occupation under lease, 289 
 
 870 Holding over, .' 390 
 
 871 Occupation under a writing, proof, 291 
 
 873 The writing must be produced, 292 
 
 873 Action by assignee of landlord, 294 
 
 874 Covenant to pay rent, action on after an assignment, 295 
 
 875,876 Tsnancy determined— proof of, 295 
 
 Eviction— pi^jof of, 295-397 
 
 877, 878 Surrender— proof of, 297 
 
 879 Proof of value, 299 
 
 880 Measure of attorney's compensation, 800 
 
 881 Effect of taxation of costs, 301 
 
 882 What items taxable, 301 
 
 883 Retainer — amount of costs, .' 305 
 
 884 Costs may be ordered taxed 306 
 
 885 Amount recoverable, 307 
 
 886, 887, 888 Unskilful services, 809 
 
 889 When attorney liable for negligence, 310 
 
 890 Common earner — who is such, ' 31t 
 
 Liability of, ! 311 
 
 891 A carrier 'without hire, ' 313 
 
 892 Hirers and innkeepers, , 3I3 
 
 893 The carrier's liability, 313-315 
 
 894 The bailee's action \ 315 
 
lii CONTENTS OF AMEEICAN NOTES, 
 
 Ho. ""•!• 
 
 895 The owner entitled to sue, 316 
 
 896 Carrier not liable unless he receives, 316 
 
 897 Liable if his authorized servant receives, 316, 817 
 
 Carrier of passengers — his liability, 317 
 
 898 Case for negligence, ,. '. 317 
 
 899 Exceptions in bill of lading— how treated, 318 
 
 900 End of the journey material in pleading 818 
 
 901 Proof in action of tort 318 
 
 903 Bill of lading as proof, 819 
 
 903 Delivery to carrier on dock 330 
 
 904 Delivery by carrier at the dock, 330 
 
 905 Malconstniction of coach, 833 
 
 Plaintiff must be without negligence, 333 
 
 906 Demation in 'ooyage — effect of,. 333 
 
 907 Dangers of the seas or rivers — meaning of, 833 
 
 Damages, 323 
 
 908 Owrrier'S notice, effect of, 334 
 
 The carrier is an insurer, 334, 325 
 
 His reponsibility and right to limit it, 335 
 
 909 A doubtful notice of no effect, 327 
 
 910 Communication of, 337 
 
 911 No protection against gross negligence 337, 328 
 
 May not stipulate for privilege of being, 328 
 
 912 Conduct, fairness of party sending by carrier, 338 
 
 913 Application of tlie notice — parcels, 328 
 
 Sl4 Conversion of goods by o xrrier, nature of act, 330 
 
 Carrier's interest in goods, 330 
 
 915 In action on awa/rd — 'proofs, 331 
 
 The submission, mode of, 331 
 
 916 Proof of submission ; when verbal, 331 
 
 917, 918, 919 When an umpire is called in 332, 383 
 
 930 Award to be made witliin time, 333 
 
 Computation of — months 333 
 
 931 Manner of making 334 
 
 923, 923, 924 Subject continued, 335-338 
 
 When the award may be impeached, 835-338 
 
 925 Averment and proof of notice, 838 
 
 926 Indebitatus assumpsit on award 338 
 
 987 The award as effectual as a judgment, ' 339, 341 
 
 938 Implied promise to pay — remedy on, 339, 340 
 
 939 The award admissible as evidence, 341 
 
 930 In various actions 341-343 
 
 931 Going beyond powers 343 
 
 933 Hearing — nofee of meeting, 344 
 
 Belief against award, 344, 345 
 
 933 Cases illustrating effect of, 346 
 
 934, 935 Terms of submission — all demands, 347-349 
 
 Excess of authority, 348, 349 
 
 936 Statute of frauds — license — easement , 850 
 
 937 Party signing, bound by contract 352 
 
 938 Auctioneer, agent of seller and buyer 353 
 
 939 Performance of concurrent acts 854, 355 
 
 940 Enlargement of time, by parol, .-. . ; 855 
 
 941 On sale, vendor to tender deed, 356 
 
 943 Proof of terms of sale 856, 357 
 
 943 Written contract to be produced, 357 
 
 944 Failure of seller to maki title, 357 
 
 945 Or reasonable assurance, 358 
 
 946, 948 False representation, 358 
 
 947 Failure of consideration, 359 
 
 949 Recovery of consideration paid — wlien allowed, 360 
 
 J50 When not allowed 361 
 
 851 Action in principal's name, 363 
 
 953 A uctioneer or agent liable v nless he discloses his principal 863 
 
 953 When interest will exclude witness ,. 804 
 
 9.54 Executory contracts— goods to be made, ', 865 
 
 055 Part perlormanoe— acceptance, 866 
 
 Recent cases • 366. 367 
 
 956 Acceptance— tender of goods, ."..'. 867] 868 
 
VOLUME THEEB. liii 
 
 No. FiLQE. 
 
 957 Possession taken — what is a delivery, 369, 370 
 
 958 Part payment — what so considered 370 
 
 959, 900 What a sufficient aigning—vi\\eD. required 371 
 
 901 Memorandum by seller's clerk 373 
 
 963 Contract alleged in legal effect, 873 
 
 Made by letter 374 
 
 968 Auctioneer's right of action, 375 
 
 964 Factor's right to sell on credit 376, 377 
 
 To meet advances recent cases, 377 
 
 965 The broker or factor's right of action 377 
 
 966 Conditions precedent — what so regarded, 378 
 
 967 Caveat emptor — no warranty implied, 379 
 
 Sale of one thing for another, 379 
 
 968 Fraud — rescinding contract 379 
 
 Accepting goods ordered, effect of, 379 
 
 969 SaZe hy sample; effect of, 380,381 
 
 970 Sale with written description 380 
 
 971 Warranty that goods are of merchantable quality 384 
 
 Not implied in a present sale ; implied of a future sale . . . 384, 385 
 
 973 When property should be returned 385 
 
 973 Accepting stock ; or not accepting, 386 
 
 974, 975 Actions for not delivering or not receiving goods — averments and 
 
 proof, 887,888 
 
 976 Measure of damages — ma/rket price, 389 
 
 977 Warranty in a sale 391 
 
 978 Proof of soundness of a horse, 391 
 
 979 Fraudulent concealment 392 
 
 980 Right to return — wlien to he exercised, 398 
 
 981 Recovery of damages, 398 
 
 982 Fraud — no contract arises out of, 394 
 
 983 Breach of warranty — action on 396 
 
 984 Payment — proof of by bill or note 396 
 
 985 Rights of parties on rescinding, 398 
 
 986 Recovery on implied contract, 400 
 
 987 Not allowed, when 401 
 
 988 Proof of sale and delivery of goods, 401, 403 
 
 989 Of authority to sell 403 
 
 990, 991 Of sale to wife— necessaries, 403, 404 
 
 ! 93 Right to waive tort and recover value of goods 405, 406 
 
 998 On an entire contract, full performance required, 406 
 
 994 A slight or partial failure, effect of, 407 
 
 995 Contract inade on Sunday, valid 408 
 
 996 On a sale for notes, which the buyer refuses to give, 40.) 
 
 997 On a sale for a guaranteed note, 409 
 
 998 Term of credit 409 
 
 999 Action for goods sold, proof to support, 410 
 
 1000 Refusal to receive goods — re-sale 411 
 
 1001 Recovery for work or improvements on land, 411 
 
 1003 For work done under an altered contract, 413 
 
 1003 For wortdone under contract 413 
 
 1004 Against master for repairs on vessel, 418 
 
 1005 Condition precedent — performance 414 
 
 1006, 1007, 1008 Proof in relation to performance, 415, 416 
 
 Illegality 416 
 
 1009 Entries by deceased agent in course ofbusiness, 416,417 
 
 1010 An interested witness, 417 
 
 1011, 1012 Action for money had, after conversion, 417 
 
 1018 Action on a promise to third person 418 
 
 1014 For money received to plaintiff's use 419 
 
 Parties acting under mistake of fact, 419 
 
 1015 Action for money lost in gaming, 420 
 
 1016 For m-oney paid under a mistake of fact, 430 
 
 1017 Not allowed for money paid under process, 421, 433 
 
 Or under an erroneous j udgment, 423 
 
 1018 For money obtained by fraud, 422 
 
 1019 Waiver of tort — action for money, 423 
 
 1030-1033 Action for money paid, _ 424, 425 
 
 1034 When action not sustained .' 425 
 
 1025 Action for money lent ; distinction between the loan and security taken, 436 
 
liv CONTEKTS OF AMERICAN NOTES, 
 
 No. PAOB. 
 
 1036, 1027 Subject continued, 427, 438 
 
 1029 Interest from what time, on a note on demand, 429 
 
 1030 Money counts in Massachusetts, 430 
 
 1031 Action on an account stated 430 
 
 1032 Acknowledgment hy one pa/rtner after dissolution, does not bind other 
 
 partners 433 
 
 1033 Contract, when joint and when not, 433 
 
 Nonjoinder, abatement, present practice, 434 
 
 1034 Contribution, obligation of parties for, 435 
 
 1035 Coverture, plea and proof of, 436 
 
 1036 Non-assumpsit, plea and proof of, 438 
 
 1037 • Want or failure of consideration, 438, 439 
 
 1038 Proof of contract against parties as laid, 439 
 
 Joint, when so alleged, 439 
 
 1039 Accord and satisfaction, 440 
 
 1040, 1041 Application of payments, 441 
 
 1043 New matter in avoidance, pleaded and proved, 443 
 
 1043 &«-02f, pleading and proof of, 443 
 
 1044 Time of commencing action, 443 
 
 1045 Action against partners, 443 
 
 1046, 1047 Plea and proof of tender, 444, 445 
 
 1048, 1049 Tender, pleading and proof of, 446, 447 
 
 1050 Allegation of tender, 447, 448 
 
 1051, 1053 Statute of limitations ; when it commences to run, 449, 450 
 
 10r)3, 1054 A new promise revives the debt, 451, 452 
 
 1055, 1056 A new loritten promise, 453, 454 
 
 1057 Form of action, 456 
 
 1058 Indorsements of payment, 456, V. I, p. 364^-369 
 
 1059, 1060 Disabilities, continuance of, 457, 458 
 
 1061 Partners do not bind each other by deed, 459 
 
 1062 Alterations or erasures, effect of, 461 
 
 1063 Non est factum, plea and proof of, 462 
 
 1064 Infancy not provable under 463 
 
 1065 Fraud, pleading and proof of, 463 
 
 1066 Condition precedent, 403 
 
 1067 Covenant to repair, 464 
 
 1068 Actions of covenant, proof in, 465, 466 
 
 1069 Assignment over 467 
 
 1070 Trustees of bankrupt, assignees 467 
 
 1071 Debt on judgment, proof to support, 468, 469 
 
 1072 Indorsement of payment, presumption as to, 489 
 
 1073 Unjust detention, action for, 489 
 
 1074 Tortious taking — what so deemed, 490 
 
 1075 Replevin, when maintained, 491 
 
 1076 Denial and title 491 
 
 1077 Proof of actual possession, 498 
 
 1078 Purchaser may enter into, 504 
 
 1079 Party executing warrant not a trespasser, 504 
 
 1080 Kemoval of obstructions to light, 505 
 
 1081 License, proof of, , 508 
 
 1082 Duty of adjoining owners, , 508 
 
 1083, 1084, 1085, 1086 Sight of way—endence as to, 510, 511 
 
 1087 Trespass, entering dwelling house 514 
 
 1088 To person, an assault,.. gig 
 
 1089 An imprisonment includes an assault, 516 
 
 1090 Justification of assault under process 519 
 
 1091 Crim, con. proof of marriage in action 523 
 
 1092 Admission of marriage admissible, .goj 
 
 1093 Unsupported adniinsion, inadmissible to prove aduttery, 536 
 
 1094 In crim. con. wife's letters received to prove affection, 527 
 
 1095 Proof in action for seduction, . .- ' 530 
 
 1096 Proof ill action of trover, 534 
 
 1097 Eight to stop in transitu, ". 535 
 
 1098 Transfer of note, ' 535 
 
 1099 Refusal by servant, effect of, ..\ 540 
 
 1100 Detention on a lien 544 
 
 1101 Wharfinger's lien, ' 545 
 
 1102 In action for slander, proof of words spoken, ggO 
 
 1103 Inaction fm' libel, proof, 553 
 
VOLUME THEBE. Iv 
 
 No. PAGE. 
 
 1104 Proof of publication, , 553 
 
 1 105 Proof of sense in which words were spoken, 558 
 
 1106 Malice implied, may be disproved, 560 
 
 1107 Proof of damages, 562 
 
 1108 Matter of inducement, 564 
 
 1109 Proof of plaintiff's bad character, 564 
 
 1110 Repetition of slanderous words, 566 
 
 1111 Malicious prosecution, 568 
 
 1112 General issue in 573 
 
 1113 Pleading and proof in, 575 
 
 1114 Proof of wills, 612 
 
 1115 Title by execution, 616 
 
 1116 Eights of njortgagors and mortgagees, 618 
 
 1117 Recovery ojf mesne profits, 633 
 
 1118 In, bankruptcy, former acts of, 627, 628 
 
 1] 19 Debts owing in a fiduciary character, 6i81 
 
 1120 The assignment relates back to filing petition, 633 
 
 1121 Bankrupt's admissions received when part of res gestae, 638 
 
 1122 Fraudulent preferences in contemplation of bankruptcy, 641 
 
 1133 Admission of contents of deed, effect of, , 643 
 
 1124 Dealings by bankrupt in good faith, 653 
 
 1135 Set-oflf against assignee 653 
 
 1126 Letters of administration, profert of, 663 
 
 1137 Defense by executor or administrator, 667 
 
 1128 Where executor's title accrues, 669 
 
 1129 Plene administravit, plea of, 670 
 
 1130 Payment, plea of and proof, 671 
 
 1131 Admissions by one oAministrator, 673 
 
 1132 Debts barred by statute, not legal demands, 675 
 
 1138 In actions against sheriffs, . .■ 678 
 
 1134 Liability for acts of deputy, 681, 682 
 
 1135 Admissions by deputy or agent, 687 
 
 1136 Attachments for contempt, 687 
 
 1187 When sheriff liable for taMng goods, 688 
 
 1138 Assignments, evidence of fraud in making, .- 689 
 
 1139 Subject continued, 690 
 
 1140 Sheriff's duty in taking bail, 698 
 
 1141, 1143 Liable for money levied, 696, 697 
 
 1143 Arrears of rent, where to be paid, 697 
 
 1144 Where sheriff liable for escape 700 
 
 1145 Not when judgment founded in fraud, 705 
 
 1146 For taking illegal fees, 706 
 
 1147 Sheriff liable for false return, 707, 708 
 
 Justice of peace when liable, 711 
 
 1148 Notice to produce paper, . . '. 718 
 
 1149 Magistrates not liMe for mistakes of judgment, 720 
 
 1150 Actions against the JIundred, towns, viMages, cities, counties 730-782 
 
 1151 For buildings torn down to prevent spread of fire, 733 
 
 Or destroyed by mob or riot, 738 
 
 1153, 1153 Proof of wills, 745 
 
 1154 Execution of — number of attesting witnesses, 746 
 
 Statutes of New York and decisionSj 746, 747 
 
 1155 Attesting witness, competency of, 747 
 
 1156 When interested under will, 748 
 
 1157,1158, 1159 Subject continued, 748,749 
 
 1160, 1161 Statutes and decisions in respect to, 750, 751 
 
 1162 Proof of contents and execution of lost will, 751, 752 
 
 Proof of loss, 752, 753 
 
 1163 Proof of execution of will, 754, 755 
 
 1164 Proof by attesting witnesses, 756 
 
 1165 By all the subscribing witnesses ^ 756, 757 
 
 Unless they are dead or reside abroad, 757 
 
 1166 Proof of signing and publishing 758 
 
 1167 Need not prove will read to testator, 761 
 
 Mode of attesting 761, 763 
 
 1168 Attesting witness need not be called — when, 763, 764 
 
 1169, 1170 When attesting witness denies execution, &c., 764 
 
 1171 An old will, thirty years old, need not be proved, T65, 766 
 
 Circumstances in support of will,. 765-767 
 
TABLE OF THE CASES CITED 
 
 IN THE 
 
 TEXT OF VOLUMES I AND II. 
 
 [THJlJ EES'ERENCE 19 TO THE MARGINAL PAGE] 
 
 [Tho letters 1 and ji denote the volumej 
 
 Abbey v. Lill i 780, ii 458 
 
 Abbot V. Plumbe i 426, ii 4fi8 
 
 Abbott V. Hendricks , ii 670, 691 
 
 V. Massie ii 716, 768 
 
 V. Smith i &52 
 
 Abel V. Potts ii 288 
 
 Abigny V. Clifford i l.> 
 
 Abignye v. Clifton. . ; ii 304 
 
 Atingdon'B Case ; 1 BB4 
 
 Abraham v. Newton ii 852, 856 
 
 Acel-^o V. Petroni ii 890 
 
 A,ckerley v. Parkinson ii 103 
 
 Ackland v, Pearce ii 544 
 
 fckroyd'B Case i 560 
 dams V, Kerr ii 505 
 
 V. Linward i 138 
 
 V. Malkin i 75 
 
 V. Peters i 779, 11790 
 
 V. Power .i 887 
 
 v. ganders i 478, 783 
 
 T. 'Savage (Terre-tenants of) i 623 
 
 V. Wordley ii 637, 673 
 
 A'damthwaite v. Synge i 275, 243, ii 354, 417 
 
 Addington v. Clode ii 312 
 
 Addison v. Overend 1 856 
 
 Adey V. Bridges 1 417 
 
 Aflalo V. Fourdrinier i 63, 57, ii 531 
 
 Aikman v. Conway i 645 
 
 Aitkin, Bx parte i 144 
 
 Alban v. Pritohett 180, 517 
 
 Alcock V, Cooke ii 263, 414 
 
 Alderson V. Clay 11447, 449 
 
 Aldredv. HaUiwell ii 308 
 
 Aldridge v. Haines ii 108 
 
 Alexander V. Bounin i 839 
 
 V. Brown i 439, 450 
 
 V. Gibson i 507, ii 990 
 
 Alivon V. Furnival. . . .i 586, ii 181, 103, 416, 417, 514, 
 
 663, 856 
 
 Allan V. Hayward ii 1018 
 
 V. Hutohina 11994 
 
 v.Tapp 11814 
 
 AJlen'aCase 1 572, ii 360 
 
 V, Denstpne 1514 
 
 AJlen V. linndas ii 75, 76. 449 
 
 V. ToxaU 11838 
 
 Allesbrqpk v. Roach ii 609, 616 
 
 AUottv; Wilkinson 1539 
 
 AUport V. Meek 11 616 
 
 Alner V. George i 474. 479, 484 
 
 Alsop T. Bowtrell i 631, 11 303 
 
 AlstonT.Milla i 792 
 
 AJves V. Bunbuiy ii 410 
 
 Amey v. -Long ii 816, 839 
 
 Amos v.- Hughes,, i 812, 814 
 
 Anderson v. Hamilton i 164 
 
 V, Sannderson i 92, 518 
 
 V.Weston i 369, 6.4 
 
 Ainderton v. Magawley ii 414 
 
 Andrew V. Pledger ii 899 
 
 Andrews v. Askey 11961 
 
 ^ V. Dobson ii 710, 718 
 
 V. Palsgrave : 1 789 
 
 Anglesea (Marq.) v. Hatherton (Lord) . ; 1 235, 
 
 753, 765 
 
 Angus V. Smith . . .- ii 959 
 
 Ankersteiny. Clark 1862 
 
 Anneely v. Anglesea (Lord) .1 141, 270, 273, 
 
 627, 639 
 
 Ansley v. Birch -..ii 859 
 
 Anscomb v. Shore i 230 
 
 Anstey v. Downing 1 571 
 
 Antram v. Chace ii 400 
 
 Apothecaries' Co. v. Bentley i 822 
 
 Appleton V. Braybrook (Lord) ii 417 
 
 Arcangelo v. Thomson ii 294 
 
 Archer v. English i 787 
 
 Afding V. Flower 11821, 822 
 
 Argyle v. Hunt i 621 
 
 Arkle v. Wakemau i 488 
 
 Armitage v, punster 1 827 
 
 Armory v. Dclamorie 1 639 
 
 Armstrong v. Hewitt i 337, 757, ii 270, 448 
 
 Arnfleldv. Bate i 845 
 
 Arnold v, Bath and Wells (Bishop) ii 281, 292 
 
 V. Eevoult 1 862 
 
 Arnott V. Eedfern ii 193 
 
 Arnaby v. Woodward i 444 
 
 Arton V. Booth ■ 1485 
 
 Arundel (Lord), Caseof. ..:: i 337 
 
 Arundel v. Arundel ....... -. - ii 213 
 
 (Mayor) v. Holmes 11314, .324 
 
 V. White....;: il 389 
 
 Arundell v. Falmouth (Lord) 1 285, 236 
 
 Ashby T. Power 1 528, ii 13, 34, 270 
 
 V.White ii 103 
 
 Ashford v. Thornton 1 628 
 
 Ashmore v. Hardy 1 425, 433 
 
 Ashton, Case of, — (See R. v. Ashton) 
 
 V. Pqynter ii 103 
 
 Aspinalv. Keihpson i 674 
 
 Astley V. Youuge i 620 
 
 Athenry Peerage Case i 265 
 
 Atherfold v.Beard ii 311 
 
 Athlone Peerage Case ii 281 
 
 Athol (Dnke) v. Ashbumham (Lord) i 270, 279 
 
 Atkins V. Drake ■; i 310, ii 271, 693 
 
 v. Hatton 11448 
 
 V. Humphreys ii 215 
 
 V. Meredith. ii 527, 631 
 
 V. Palmer. u gsi 
 
 Vol. I. 
 
 8a 
 
Iviii 
 
 TABLE OF CASBS CITED. 
 
 Atkins V. Tredgold ..i 
 
 Atkinson v. Carter ii 
 
 V. Cornieh i 
 
 V. Foster i 
 
 V. Pierrepoint i 
 
 v. Ealeigh 1 
 
 Att. Gen. v. Bond ii 
 
 V. Bovet f ii 
 
 V. Bowman i 
 
 T. Bulpit ii 
 
 V. Clerc ; i 
 
 V. Coventry (City) ii 
 
 V. Davison ii 209, 
 
 V. Donaldson i 
 
 V. Foster i ii 
 
 V. Good i 
 
 V. Griffith i 
 
 T. Grote ii 736, 
 
 V. Hitchcock.. i, ...'. ii901, 
 
 V. King ii 3, 
 
 V. Le Merchant ii 
 
 V. Morgan , ii 
 
 V. Parker ii 
 
 V. Parnther i 
 
 V. Plate Glass Co ii 
 
 V. Eiddle 1 
 
 v. Theakstone i 619, ii 
 
 V. Warwick (Corporation) i 
 
 Aud'ey (Lord), Case of i 
 
 Angustien v. Challis i 
 
 Austin v. Poiner. ii 
 
 V. Ramsay ii 
 
 Avery v. Dickinson ii 
 
 A veson v. Kinnaird (Lord) .... i 78, 183, 187, 314, 
 Avrey v. Davenport ii 
 
 Backhouse v. Jones i 749 
 
 V. Middleton ii 219 
 
 Bacon v. Chesney i 478 
 
 Baddeley V. Gilmore ii 855 
 
 Bagot (Lord) v. WillianiB. ii 21, ^ 
 
 Baikie v. Chandless ii 680, 583 
 
 Baildon v. Walton I 420 
 
 Bailey v. Appleyard 1 589 
 
 Bailey v. Bidwell i 820, ii 485 
 
 Baillie's Case 1134, 166 
 
 Bain v. Case ii 289 
 
 ' V. Mason ii 281 
 
 Baker v. Dewey i471, 472,11 6.'52 
 
 V. Morley i 80 
 
 V. Paine ii 787 
 
 V. Sweet ii 382 
 
 Balcetti v. Serani 1 750 
 
 Baldney v. Eitchie ii 522 
 
 Ballardv. Way 11272 
 
 Balmarino (Lord), Case of i 889 
 
 Bamfleld v. Massey 1 760, ii 9B1 
 
 Bamford, Ex parte i 422 
 
 Banbury Peerage Case 1 243, 266, 258, 268, 275, 
 
 479, MO, 11 215, 265 
 
 Union (Guardians) v. Robinson i 788 
 
 Bank Prosecutions, Case of 1 571 
 
 Barber v. Wood ii 819, 820 
 
 Barclay (Lord), Case of i 754 
 
 Harden v. Keeverberg i 749 
 
 Barford v. Nelson i 450 
 
 Baring v. Roy. Exch. Ass ii 174 
 
 v. Clagett 11173,174, 175 
 
 Baker v. Dixie i 80 
 
 V. Keate 1 643 
 
 v. Ray i 805, 311, 312, 389, 344, 518, 639 
 
 V. Ricnardson i 435 
 
 v. Stead ii 606, 602 
 
 V. Vaughan i 518 
 
 Barksdale v. Moirgan ii 710 
 
 Barlow v. Bishop i 518 
 
 Barne v. Whitmore. 1 006 
 
 Barnes v. Hunt 1 .S29 
 
 V. Mawson 1 819, 230, 285, 281 
 
 V. Trompowsky ii 493 
 
 V. Wenkler ii 165 
 
 Barnett v. Brandao i 621 
 
 Barnstable (Corporation) v. Lathey il 314 
 
 Barough v. White 1 832, 480, 531 
 
 Barraolough v. Johnson 1 845 
 
 Barrett v. AVilson ii 103 
 
 Navigation Co. v. Shower 1 624 
 
 Barron v. QrlUard 1 80, 491 
 
 Barrow Y. Humphreys ii 829 
 
 Barrsv. JackaoB 1183, 98 
 
 Barry v. Alexander ii 321, 323 
 
 V. Beblngton 1 306, 340, 845 
 
 Barrymore (Lord) v. Taylor i 416, 420 
 
 Barstow's Cise i 540 
 
 Bartholomew v. Stephens i 596, ii 652 
 
 Bartlett v. Downes i 674 
 
 V. Pickersgill 159, ii 676 
 
 V.Smith 15, 297 
 
 Barzillai v. Lewis ii 174 
 
 Basan V. Arnold , i 827 
 
 Bass V. Clive i 468 
 
 Bassett V. Bennett ii 85 
 
 Bastard v. Smith i 603, ii 886 
 
 V. Trutch i 642 
 
 Bastenv. Carew ii 108,104, 891 
 
 Batchelor V. Honey wood 11 602 
 
 Batev.HlU 1 760, ii 961 
 
 V. Kinsey i 181, 185, 145, 639, 11 536, 561 
 
 V. Russell . . . . ; 1 62 
 
 Bateman v. Phillips ii 812, 324, 326, 331, 682 
 
 Bates V. Grabham ii 664 
 
 Bateson v. Harteink i 154 
 
 Bath V. Battersea (Earl) 1 410, ii. 215 
 
 Bathwick Peerage Case i 257 
 
 Batthews v. Galmdo 1 82, 465 
 
 Bauerman v. Radenius i 41, 474 
 
 Bayley v. Edwards ii 182 
 
 Baylle v. Wylie ii 384 
 
 Baj'lis V. Lawrence i 632 
 
 Bayne V. Stone 1580 
 
 Baynham v. Guy's Hospital ii 804 
 
 Beadsworth v. Torkington 1 860 
 
 Bealev.Blrd 11 328, 329 
 
 Beamon V. EUice ii 889, 890 
 
 Beard v. Ackerman 1 146 
 
 Beasley V. Magrath i 485 
 
 Beanchamp v. Parry 1 530 
 
 Beaumont V. Dukes ii 688 
 
 v.Fell ii 717. 768 
 
 V. Greathead i 502 
 
 Beaurain v. Scott 1 623, ii 387, 399 
 
 Beaver v. Lane 1 863 
 
 Bebb V. Thomas i 188 
 
 Beckett v. Dutton i 882, 883 
 
 Beckham v. Osborne i 418 
 
 Beckwith v. Bonner i 157 
 
 Becquet v. M'Carthy ii 181, 182, 193, 204 
 
 Bedford (Duke) v. Lopes 1 283 
 
 Bedleand Beard, Case of 1 660 
 
 Beebee v. Parker 1244 
 
 Beech v. Jones ii 678, 917 
 
 V. White 1 887 
 
 Beechlng v. Gower i 102 
 
 Beeman v. Duck 1 408 
 
 Beer v. Ward — (See Bere v. Ward). 
 
 Belcher v. Brake 75, 202, 489 
 
 V. M'Intosh 1 812 
 
 Bell V. Ansley 1 486 
 
 V. Banks 1. 46 
 
 V. Francis ii 524 
 
 V.Smith i486 72 
 
 Bellairs v. Elsworth ii 676 
 
 Bembridge v. Osborn i 703 
 
 Bendyshe v. Pearse i 576 
 
 Bennett v. Francis 1788 
 
 v. (Hundred) Hertford i 15 
 
 v. Taylor ii 492 
 
 V. Watson ii 834 
 
 Bennion V. Davison 1 794, 796 
 
 Beunison v. Jewison i 5 
 
 Benson v. Bennett 1 474 
 
 V. M;arBhaU 1 630 
 
 V. Olive 1 628, ii 13, 84, 818, 262 
 
 Beutv, Baker 1 60 
 
 Bentloy v. Cooke i 88, 94 
 
 Bentzingv, Scott 1874 
 
 Bere v. Ward 1 270, 274, 11 481 
 
 Berosford v. Sasthope ii 865 
 
 Berigan's Case 1 Ml 
 
 Berkeley Peerage Case ii 214, 243, 245, 846 
 
 262, 265, 258, 267, 274, 276, 879, 806 
 
 Berman v. Woodbridge , 1 418 
 
 Bernard! v. Motteux fi 178, 176 
 
 Bernasconi v. Farebrother 1 480, 489, ii 987 
 
 Bernor's Peerage Case i 266 
 
 Berney v. Read 11 400, 467 
 
 Berry's Case i tS47 
 
 v, Banner 1 238, ii IS 
 
 Berrymau v. Wise l 436, B91 
 
 Berthon v. Loughman 1 782 
 
 Bertie v. Beaumont li 293, 489, 480 
 
TABLE OP CASES CITED. 
 
 lix 
 
 Berwick's Case i 561 
 
 Bessey v. Windham i 481, 425, ii 3t)3 
 
 Betliam V. Benson i 507 
 
 Bethell v. Blencowe i 423, 519, ii 571 
 
 Betswortli v. Betswortli ii 85 
 
 Betteley v. M'Leod ii 829 
 
 T. Eeed i 469 
 
 Bevan V.Hill .....i 596 
 
 V. Jones i 861 
 
 V. Waters i 157 
 
 q. t. V. Williams i 485 
 
 Beveridge V. Minter i 79 
 
 Beverley (Mayor, &c.) v. Craven ii 346 
 
 Bevis V. Lindsell i 785 
 
 Biddulph V. Atlier i 280, 237, 882 
 
 Biden V. Loveday i 674 
 
 Billefs V. Bowles ' i 786 
 
 Bingliam v. Stanley i 159. 797. 820 
 
 Binstead V. Coleman ii 676 
 
 Birch V. Depeyster. 11786 
 
 Birmingham, Bristol and Thames Junction 
 
 Railway Co. v. White ii 314, 320 
 
 Birt V. Barlow 1 589, 631, ii 264 880 
 
 V. Eothwell i 620 
 
 Bishop V. Howard 1648 
 
 Blttleston v. Cooper i 506 
 
 Blacls V.Holmes i 164 
 
 V. Brayhrooke (Lord) ii 347 
 
 Blackburn V. Thompson i 620, 026 
 
 I'lackburne v. Hurgreave ii 819 
 
 Blackeln or Blackelor v. Crofts i 341, 370 
 
 Blackett v. Lowes i 229, 231 
 
 V. Roy. Ex. Ass. Co ii 798 
 
 Blackham's Case ii 47, 93 
 
 • Blackie V. Pidding. 1597 
 
 Blacquiere v. Hawkins i 681 
 
 Blake v. Foster i 467, 468 
 
 V. Lawrence i 803 
 
 V. Pilfold : 1 165 
 
 Blakemore V. (31amorganshire Canal Co..ii, 15, 51 
 
 Blakey v. Porter : ii 324 
 
 Bland v. Ansley 1 83 
 
 v. Drake i 632 
 
 V. Swaffham ; . . ii 833 
 
 Blandford v. De Tastet ii 829 
 
 Blewett V. Tregonning i 793, 973 
 
 B'igh V. Wcllesley ii 559 
 
 Blower V. Hollis ii 379, .380 
 
 Bloxam v. Elsee 1 423 
 
 V. Hubbard i S)3 
 
 Bluett V. Bamfield ■ -11207 
 
 Blundellv. Gladstone ii 711, 718, 768 
 
 V. Howard ii 271 
 
 Blunt V. Blount i 266 
 
 V. Clarke 1 643 
 
 V. Cumyns -. ii 787 
 
 BIyth V. Bampton i 851 
 
 Boehtlinck v. Schneider ii 428 
 
 Boilean v. Rutlin i 479. 798 
 
 Bold V. Rayner ii 788 
 
 Boldron v. Widdows 1 749 
 
 Boltman v. Roden (Lord) ii 711 
 
 Bolton V. Liverpool (Corporation) i 134, 142, 
 
 525, ii 315 
 
 V. Gladstone ii 173, 174, 175 
 
 V. Sherman i 535 792 
 
 Bond V. Seawell i 643 
 
 Bonham, Dr.. Case of ii 103 
 
 Bonzi V. Stewart i 793, 795 
 
 Booth V. Howard i 787, 7;9, 80fl 
 
 Boo-hv. Wilson.. i 653 
 
 Bootle V. Blundell Ii 7.37 
 
 Borthwick- V. Carruthers 1823 
 
 Bosanquet v. Anderson i 468 
 
 Boson V. Sahdford. i 852 
 
 Boswell V. Smith... i 703 
 
 Bosworthx Cotchett.; i 344, 864, 366 
 
 Botbam v.^wingler i 103 
 
 Bottings V. Firby . . ' ii 167 
 
 Bottomley v. Forbes ii 805 
 
 V. Usborne i 131, 147 
 
 Boucher V. Lawson ii 182 
 
 V. Murray i 8&3, 886 
 
 Bouchler v. Taylor ii 65 
 
 Bounty, Case of ii 103 
 
 Bourdeaux v. Rowe ii 853 
 
 Bousfleld V. Godfrey ii 338, 332 
 
 Bowditch V. Mawley i 861 
 
 Bowen v. Jenkins 1 829, 859 
 
 Bowers V. Nixon i 882, 887 
 
 Bowles V. Jackson.. v. ■.'.•., ii 819, 827 
 
 Bowles V. Laugworthy i 426, ii 211, 
 
 Bowman v. Bowman ii 
 
 V. Horsey ii 
 
 V. Manzelman ii 
 
 V.Norton 1 135, 
 
 V. Bostron i 
 
 V. Taylor i 257, 
 
 Bowsher v. Cally i 211, 
 
 Boxer v. Robeth ; .'...11 
 
 Boyd V. Moyle i 
 
 Boydell v. Brummond -. ii 
 
 Boyle V. Tamlyn :...! 
 
 Boys V. Ancell f i 
 
 V. Williams. . -. ^ii 
 
 Braddick v. Thompson -. ..ii 
 
 Bradleyv. Arthiir i 680, ii 
 
 V. Ricardo. ii 988, 
 
 Bradshaw V. Bennett ii 488, 
 
 V. Bradshaw ii 
 
 V. Murphy ii 
 
 Brain V. Freece i 
 
 Braithwaite v. Coleman i 615, 
 
 Bramwell v. Lucas.. i 
 
 Brancher v. Molineux i 
 
 Brandon v. Newington i 
 
 Brandram v.' Wharton 1 
 
 Brandreth's Case (See R. v. Brandreth) i 
 
 Brasfield V. Lqe i 
 
 Brashier v. Jackson i 880, 
 
 Branch v. Cradock i 133, 
 
 Brazier v. Bryant ii 
 
 v. Jones ii 
 
 Breckon v. Smith i 
 
 Bree v. Beck 1 306, ii 265, 
 
 Breedon v. Gill ii 219. 
 
 Breeze v. Hawker ii 
 
 Breton v. Cope '. ii 287, 444, 
 
 Brett v. Beale3..i 219, 235, 284, 310, 336, ii 272, 
 
 v. Levett '. i 
 
 V. Ward ii 
 
 Bretton v. Prettiman i 
 
 Brewer v. Palmer i 
 
 Brewster v. Sewell ii 553, 
 
 Briant v. Dormer ii 
 
 V. Bicke........ i 
 
 Brice v. Smith i 
 
 Brickellv. Hulse i 449, 450, 531, ii 
 
 Bridget v. Coyney_ ii 
 
 Bridgraan v. Jennings ■ 1 236, 
 
 Briggs V. Aynsworth. . .- ■. ii 
 
 Bright V. Walker i 
 
 Brindley V. Woodhouse ii 
 
 Briugloe v. Goodson 1 
 
 Brisco V. Lomax i 219, 331, 237, 
 
 Briscoe v. Stevens ii 
 
 Bristow V. Eastman i 
 
 V. Wright i 839, 
 
 British Museum (Trustees) v. Finnis. . .1 650, li 
 
 Brittain v. Einnaird ii 103, 
 
 Broad v. Pitt 1 138, 
 
 Broadhurst v. Baldwin 1 
 
 Brocas v. London (Mayor) -. . . .ii 
 
 Brock V. Kent ; i 
 
 Brodiev. St. Paul ii 
 
 Bromage v. Prosser i 
 
 V.Rice ii 
 
 Bromfleld V. Jones i 837, 
 
 Bromley v. King i 181, 303, 
 
 V. Wallace i 181, 
 
 Bromwich's Case (See R. v. Bromwich). 
 
 Brook V. Willett , i 
 
 Brookbank v. Anderson i 10.3, 
 
 Brookbard v. Woodley ii 610, 
 
 Brooks V. Blanshard i 
 
 V. Warwick i 
 
 Brooksby v; Watts i 
 
 Brough V. Parkings i 
 
 Broughton v. Randall i 
 
 Brounker (Lord) v. Atkins ii 
 
 Brown (or BEOwne) v. Brown i 
 
 V. BuUen ii 
 
 V. Capel ii 
 
 V. Gumming ii 
 
 v.'Dean ii 
 
 V, Pox i 
 
 V. Gatliffe ; : ii 
 
 ■v. Giles. . ii 
 
 V. Hodgson ii 
 
 V. Jacobs.. -.1 
 
 V. Knill i 
 
 V, Murray , , ii 
 
 789 
 6.50 
 165 
 472 
 473 
 638 
 504 
 883 
 743 
 653 
 883 
 7.3B 
 103 
 277 
 984 
 67S 
 780 
 319 
 356 
 639 
 159 
 792 
 830 
 502 
 205 
 625 
 886 
 153 
 103 
 450 
 803 
 270 
 250 
 445 
 469 
 995 
 489 
 278 
 617 
 576 
 655 
 468 
 874 
 643 
 315 
 104 
 539 
 914 
 649 
 576 
 473 
 755 
 165 
 474 
 
 104 
 142 
 793 
 446 
 517 
 743 
 638 
 616 
 841 
 489 
 760 
 
 466 
 618 
 875 
 633 
 467 
 625 
 641 
 13 
 47 
 
 lot 
 
 303 
 305 
 363 
 46 
 805 
 911 
 809 
 881 
 861 
 913 
 
Ix 
 
 TABLE OF CASES CITED. 
 
 Brown v.' Philijot :i 820 
 
 V. Hose.. ii 334, 328 
 
 V. Saybe i 845 
 
 V. Shelley i 2fi8, 270 
 
 V. Tlioi-ntori ii 303, 469 
 
 V. Watts 1 802 
 
 V. Woodman ii 514, 544, 569 
 
 Brownell v. Bonney i 451, 704 
 
 Browning V. Aylwin ii 324 
 
 Brownsword v. Edwards -.ii 51 
 
 Bruce v. Hurley i 187 
 
 V. Wait i 621, ii 136 
 
 Brudenell v. Roljerts i 467, 4K8 
 
 Bruin v. Knott , i 621 
 
 Brune v. Thompson,... i 237, 346, 626, 636, 627 660 
 
 Brunton's Case i 107 
 
 V. Hall i 860 
 
 Bryan v. Wagstaflf ii 531 
 
 V. Winwood i 756 
 
 Brydges V. Chandos (Duke) ii 644 
 
 V. Fisher , ii ai5 
 
 Buchanan T. Hucker i 624, ii 193, 204 416 
 
 Bucher v. Jarret i 580, ii 539 
 
 V. Palsgrave i 789 
 
 Buckler v. Millerd ii 643, 682 
 
 Buckworth's Case i 3S!I 
 
 Bulkley v. Butler ii 60S 
 
 Bullen V. Michel i 229, 235, 306, 338, ii 270, 271, 
 
 292, 414, 481 
 
 Bunbury v. Bunbnry i 136, 146 
 
 T.Matthews 1593,624 
 
 Bunting's Case ii 90 
 
 Burdett V. Colman i 207 
 
 Burdon V. Browning i 59 
 
 Burgess v. Langley i 168 
 
 Barghart v. Angerstein ii 280 
 
 Burleigh v. StiDbs ii 644 
 
 V. Stott i 502 
 
 Burley's Case i 559 
 
 V. Bethune i 633 
 
 Burling v. Paterson i 643 
 
 Burnand v. N^rot 1 621, ii 381, 382, 385 
 
 Burnett v. Lynch , ii 488 
 
 Burr V, Harper. . ". ii 602, 609, 610, 616, 626 
 
 Burrell v. Nicholson ii 317 
 
 r. Nortli ii 540 
 
 Barroughv. Martin ii 926 
 
 V. Skinner 1787 
 
 Barrows v. Jeniin,o ii 207 
 
 Burt V Palmer i 613, 517 
 
 V. Walker ii 497 
 
 Barton, Ex parte... ii 207 
 
 T. Payne ii 623 
 
 V. Pmmmer i 586, ii 678, 917, 926 
 
 Bush V. Ealline i 129 
 
 Bughwood V.' Bond ; . .1 859 
 
 Butcher V. Butcher ii 651 
 
 V. Stewart ii 760 
 
 Butohers' Company v. Jones i 103 
 
 Butler v. Alnutt i 646 
 
 T.Carver i 103 
 
 T.F rd i 594 
 
 T. Moore i 138 
 
 Buxton V. Cornish i 679 
 
 Byamv.Booth ii 883 
 
 Bye V, Bower i 886 
 
 Byerley y. Wjndus i 652 
 
 Byne v. Moore i 862 
 
 Byrne v. Harvey ii 531 
 
 Caddy v. Barlow i 773 
 
 Cadogan v. Cadogan i 627 
 
 Call V. Dunning i 426, 461, 468 
 
 Calleiidar v. Dittrich i 889, ii 170 
 
 C'alliard v. Vaughan ii S61, 859 
 
 Calvert V. Canterbury (Arbp.) i 340,361 
 
 V. Bovll ii 175, 176 
 
 V. Flower ii 637, 966 
 
 Camden v. Anderson ' ii 285 
 
 Cameron v. Farmer i 810 
 
 v.Lightfbot i 449 
 
 Campbell (Major), Case of— (See E, v, Camp- 
 bell),... ; 16, ii311 
 
 V. Hodgson ii 673 
 
 V. Rlckards t780, 782 
 
 V. Twainlow i 83 
 
 V. Webster i 451, 704 
 
 Canning's Case— (See R. v. Cannlig) 1119 
 
 Careless V. Careless ii 778, 780 
 
 Carey v. Adkins i 93 
 
 Carey V. Gerrish 1703 
 
 V. Pitt ii 601, 602 
 
 Carlisle (Mayor) v. Blamire i 473i 11 644 
 
 V. Bady .- j 104 
 
 V. Trears i 845 
 
 Carmarthen (Mayor &c.) v. Lewis 1 881 
 
 Carmichael V. Carmichael 1 28 
 
 Carnarvon (Earl) v. Villebols. , . .i 219, 238, ii 269, 273 
 
 Came V, Horsefall ii 789 
 
 V. NicoU i 312, 333, 334 
 
 Carpenters' Co. V. Hayward 1 3 
 
 Carpenter v. BuUer 1 472 ii 472, 473 
 
 V. Thornton ii 66 
 
 V. Wall ii 956, 9.59, 961 
 
 Carr V. BnrdisB 11487,488 
 
 V, Heaton 1113, 15 
 
 CaVratt v. Morley 1 643 
 
 Carrick V. Vicary I 468 
 
 Carrlngton v. Jones ....1346 
 
 CarrutHers V. Graham 176.11 865 
 
 Carter v. Boehm 1 781, 782 
 
 V. Downish 1 621 
 
 V.James i 793,796,11 47 
 
 V. Murcott 1647 
 
 V. Pryke 1748,763 
 
 Cartridge v. Griffiths 1 861 
 
 Casaidy v. Stenart 1 620 
 
 Castrique v. Bemabo 1 645 
 
 Catea v. Hardacre 11 929, 937 
 
 v Winter il52i527 
 
 Catherwood V, Caslon 1632 
 
 Catt V. Howard i 414, 500, 11 928 
 
 Catteris v. Cowper i 646 
 
 Cavan v. Stewart ii 170, 194, 203, 416 
 
 Cazenove v. Vanghan U 213, 214, 383, 857 
 
 Chad v. Tilsed il 800 
 
 Chadwickv, Bunning 11 454 
 
 Chambers v. Bernasconi 1 340, 343, 367, 361, 449, 
 
 11 213 
 
 v. Chambers 1 627 
 
 Champianv. Terry 1596 
 
 Ohampneys v. Peck 1 353, 361, 645 
 
 Chandler v. Grieves 1 622 
 
 V. Home 11 887. 888 
 
 Chandos Peera;ge Case 1 266, 263, 366, 11 2.91 
 
 Cbannellv Ditchburn 1602 
 
 Chaney v. Payne 11 104, 307 
 
 Chapman V. Beard 1435,307 
 
 V. Cowlan i 217, ^6, 11 291 
 
 V. Davis ; 11 833 
 
 V. Gardner 1 74 
 
 V. Graves 1 60 
 
 V. Pointer 11 827 
 
 V. Smith 1219,310,11271 
 
 V. Sutton 1 879, 883, 886 
 
 V. Walton 1 782 
 
 Charles V. Branker 1 789 
 
 Charlter v. Barrett 1 772 
 
 Charlton V. Gibson 11 791 
 
 Charnock's Case— (See E. v. Charnbck) 1 HI 
 
 V. Lumley 11 326 
 
 Cbarington v. Brown 1 172 
 
 Chafers v. Bell 1 468 
 
 Cbatfleldv. Fryer 1 233 
 
 Chatland v. Thornley 1 622 
 
 Chaurand v, Angerstein 11 788 
 
 Cheetham v. Hampson 1 652 
 
 Chelsea Waterworks (Governor, &o.) v. Coop- 
 er .11 481 
 
 Chesmer v. Noyes 11 302 
 
 Cheaterton v. Farlar 1 642 
 
 Cheyne V. Coops 1 73 
 
 Child V. Chamberlain 1 54 
 
 V. Grace 1 446, 446, 564 
 
 Chippendale v. Thurston 1 601 
 
 Chlsman v. Count 1 445, ■' 03 
 
 Chittv V. Dendv .«. 1 623 
 
 Cholmondeley (Lord) v. Clinton 1 143, B74. 11 219 
 
 Christian v, Coombe 1 478, ii S03, 959 
 
 Christie v. Secretan 11 172, 174 
 
 V. tluwln i 642 
 
 Christy v, Tancred - 11 17 
 
 Chubb V, Westley 1 772 
 
 Churchill v. Day 1 787 
 
 V, Evans 1 652 
 
 v. Wilklns 1 845 
 
 Clanrioarde (Lord) Case of u 278 
 
 Clarldgo V, Hoaru U 930 
 
 V, Mackenzie 1 468 
 
 Clark or Clarke v. Clarke 1 140, 436, 464 
 
 V, Gray 1192,851 
 
TABLE OF CASES CITED. 
 
 Ixi 
 
 Clark V. Horrell i 882 
 
 V. MuUi(51i i 624 
 
 V. Saffrey ii 891 
 
 v.. Wilmot i 336 
 
 Clar&e. In re i 642 
 
 Clarkson V. Hanway 11689 
 
 T. Woodhouse ...1235, 8S7, 281, 282, 283, 
 
 284 
 
 Clay's Case i 694 
 
 V. Langslow 1 489 
 
 v. Stephenson 11 852, 856 
 
 V. Thackray (or Shackeray) 1 5U6 
 
 V. WlUan 1 792 
 
 Clayes v. Sherwin 11 216 
 
 Clayton v. Corby 1 829 
 
 •('. GregSon 11 709, 710, 793, 796 
 
 ■», Nug'ent (Lord) li 761 
 
 Cleevev. Powell 1133,153, 11 32 
 
 Clegg T. Levy 11 428 
 
 ClegEom V. DSsanges 11 3b3 
 
 Clement! v. Golfllng I 620 
 
 Clements' Case (See R. v. Clements.) 
 
 v. ScniJamore 1 621 
 
 Clerk V. Bedford 1352, 361 
 
 Clermont v. Tasbnrgh 11 688 
 
 V. Tullidge 11 609 
 
 Clifford V. Burton 1 92, 518 
 
 V. Hnnier 11 899 
 
 V. Taylor 11 332 
 
 V. Tarrell 11 655 
 
 Clifton V. Walmsley 11644. 804 
 
 Clinan V. Cooke ^.11665 
 
 Clinton Peerage Case 1 267 
 
 . V. Peabody 11 330 
 
 Clothier v^hapman 1 220, 2.30 
 
 Clowes T. Hlgglnson 11 673 
 
 Clunnes v. Pezzy '. . . .1 639 
 
 Clntterbdbk' v. Huntlngtower (Lord) i 41 
 
 CbateS v. Balnbridge 1 516 
 
 T. Birch i 157 
 
 V. Mndge li 524 
 
 V. Stevens t i 800 
 
 Cobbv. Car i 38 
 
 Cobden v. Kendrick 1 140, 141 
 
 Cocker v. Shuttleworth 11 329 
 
 Cockman v. Matber li 299 
 
 Cocks V. Nash 11 324, 327 
 
 V. Purday ii 428 
 
 Cocksedge v. Patishaw ii 1009 
 
 Coe V. westernam 1175,449 
 
 Coggs V. Barnard i 633 
 
 Coghlan v. Williamson ii 493 
 
 Cohen v. Hannam i 845 
 
 V. Hlnkley 1 612 
 
 V. Templar i 164 
 
 Coker v. Farewell i 389 
 
 Cole V. Hadley i 450 
 
 Coleman'^ Case 1 534 
 
 Coles V. England (Bank) i 465 
 
 V. Trecothick ii 743 
 
 Colledge v. Home 1 525 
 
 Collcnridge v. Farqnnrson I 188 
 
 CoUett v.TSelth (Lord) 1 432, 623 
 
 CoUey V. Smith 1 47 
 
 Collier v. Nokes 1 431, ii 906 
 
 Colling V. Treweek li 539, 644 
 
 Collins V. Bayntam ii 489 
 
 V. Carnegie 1 436, 624 
 
 V. Godefroy 11 829 
 
 V. Gresley i 284 
 
 V. Martin 1 644 
 
 V. Manle 1580,11595 
 
 C'olpoys V. Colpoys 11 751 
 
 Colael V. Budd 1 703 
 
 Colson V. Selby i 803 
 
 CoUon V. James 1 «45 
 
 Colvln V. Proc. Gen i 641 
 
 Compagnon V. Martin 1827 
 
 Compton V Chandless i 350 
 
 Connell v. Onrtis i 594 
 
 Conway v Beazley ii 180 
 
 Cooch V. Goodman i 634 
 
 Coode v. Coode ii 281 
 
 Cook (or Cooke) v. Banks i 234, 339, 11 291 
 
 V. Booth ii 804 
 
 V. Green i 648 
 
 V. Hartle 1 791 
 
 V. Heam i 147, 11 551 
 
 V. Lloyd 1 87, 251, 272 
 
 V. Loxley i 467 
 
 V. Manwell i 138 
 
 Cook V. Maxwell 1 164, ii 358 
 
 V. Miinstone i 845 
 
 V. Nethercote 11 887 
 
 V. ShoU i 100 
 
 V. Stratford i 886 
 
 V. Tanswell li 336^489, 533 
 
 Cookes V. Hellier i 643 
 
 Coole V. Brabam 1 489, 490 
 
 Coombs V. Coethler i 219, 235, ii 292, 444 
 
 Cooper V. Amos 1 802 
 
 V. Blandy i 408 
 
 V. Bllck i 78S, 841 
 
 V. Beckett 1 643 
 
 V. Gibbons 1 639, 11 528, 536 
 
 V. Le Blanc 1 469 
 
 V. Marsdtn i 304, 352, 354, 370 
 
 V.Meyer 1468 
 
 V. Smith 1 420 
 
 T. South : ..1285 
 
 V. Turner i 703 
 
 V. Whitebouse 1 886 
 
 Coote V. Lighworth i 466 
 
 Cope V. Bedford 11 278 
 
 V. Cope i 87, 276, 630, 11 281 
 
 V. Tbames Haven Dock Co li 906, 914 
 
 Copelandv. Watts i 154 
 
 Corbett v. Corbet* 11 385 
 
 Cordwent v. Hunt 11 692 
 
 Cornfield v. Parsons 1 6 
 
 Corking v. Jarrard 1 104 
 
 Cormack v. Heathcotc i 139, 144 
 
 Cornish v. Pugh 1 88 
 
 V. Searell, i 468 
 
 Cornwall v. Richardson i 760 
 
 Corsen v. Dubois i 154 
 
 Cory V. Bretton 1 426 
 
 Cossens v. Cossens 1 471 
 
 Cost V. Birbeck 1 237 
 
 Coster V. Innes 1642 
 
 Cotes V. Davis 1 518 
 
 Cotterell v. Cuff 1 851 
 
 Cotterlll V. Hobby i 577, 761 
 
 Cottlngton's Case 11 180 
 
 Cotton V. Godwin i 830 
 
 V. James i 169, 11 294 
 
 Coulishaw v. Cbeslyn 1 793 
 
 Connden v. Clarke ., 11 777, 780 
 
 Cousins V. Brown i 862 
 
 Cow V. Kinnersley i 855 
 
 Cowan V. Abrahams 1 680, 11 539 
 
 V. Braidwood ii 205 
 
 Cowling V. Ely , 1 485 
 
 Cowper V. Cowper 1 639 
 
 Cox V. Alllngham ii 75, 450, 452 
 
 T. Brain 1788 
 
 V. Copping 11 316 
 
 V. Painter i 886 
 
 V. Parry i 791, 792 
 
 V. Read 11385 
 
 V. Walker i 816 
 
 Cozer V. Pilling 1 633 
 
 Crank (or Cronk) v. Frith 11 409 
 
 Craven v. Halllley i 203 
 
 Cray V. Halls 1 469 
 
 Craythorne v. Swinbnme 11 665 
 
 Crease v. Barrett. . .1 217, 219, 233, 236, 241, 343, 344, 
 271, 305, 306, 311, 313, 4O0, 638, 11 1013 
 
 Creevey v. Car ii 899 
 
 Crellln v. Calvert i 794, 799 
 
 Crepps V. Durden 11 104 
 
 Crew V. Saunders 11 311, 313 
 
 Crisp V. Anderson 1 639, 643, ii 671 
 
 Crispin v. Williamson 1 857 
 
 Christy v. Tancred 11 17 
 
 Crltchlow V. Parry 1 468 
 
 Croft V. Pawlet 1 643 
 
 Crook 7. Stephen 1485 
 
 V. Dowling ii 396 
 
 Crooke v. Edwards i 75 
 
 Crosby v.Hethering 1621, 11166 
 
 v. Percy 1 172, 11 498 
 
 Cross v. Eglin ii 799 
 
 v. Fox i 74 
 
 V. Kaye 1 435 
 
 Crosse v. Redingfleld .• . i 492 
 
 Crossfleld's Case i 403 
 
 Crouch V. Drury i 370 
 
 Croughtonv. Blake.' li 440 
 
 Crowley v. Page i 675, 697, 11 960, 969 
 
 Crowther v. Solomoirs ii 571 
 
 Cuffv. Penn ii 677, 680 
 
Ixii 
 
 TABLE OF CASES CITED. 
 
 Cnllen V. Morris ..ii 103 
 
 Cnley V. Doed. TaylerBon ii 1007 
 
 Cundellv; Pratt ii 94() 
 
 Cunliffev. Sei^ton i 426, ii 498, 505 
 
 V. Whitehead ,. 11862 
 
 Cupper ,v. Newarlc 138, 74 
 
 Curlewis V. Corfield ' i 451, 704 
 
 Curling v. Robertson '. ii 385, 856 
 
 Carrie v. Brown ii 467 
 
 V. Child 1 63, ii 493 
 
 Curry v. Walter i 166 
 
 Curtis V. Hunt 1 478 
 
 V. Rickarda 1 649 
 
 Curzon v. Lomax 1 218, 235, 264 
 
 Cussona V. Skinner 11 461, 503 
 
 Cutlerv. Newling i 600, 626 
 
 Cuts V. Pickering 1 140, 157 
 
 I>. 
 
 Da Costa v.kEdmonds i 645 
 
 V. Jones , 1168 
 
 V. Villa Real ii 90 
 
 Dagleishv. Dodd 1 411 
 
 Daintree v. Brocklehurat i 674 
 
 V.Hutchinson 11709 
 
 Dalgleiah v. Hodgson ii 173. 174, 175, 176 
 
 UaliBon V. Stark 1 579, 590, ii 678 
 
 Sarlyraple v. Darlymple , 1 623, ii 428 
 
 DalBton V. Coatswortn 1 639 
 
 Damerell v. Protheroe i 755 
 
 Dance \'. Robeou ii 415 
 
 Dandv. Kingscotc 1 792 
 
 Dandridge v. Corden ii 934 
 
 Dane v. Kirkwall ii 36li 
 
 Daniel v. North i 334 
 
 V. Preece 1 887 
 
 Daniell v. Phlllipps 11 104 
 
 V.Pitt i 517 
 
 Daniels v. Potter i 211, 493 
 
 Darby v. Smith i 792 
 
 Dartmouth (Countess) v. Roberts 1 314. 406, 470, 
 
 628, ii 381, 382, 8-6 
 
 Dartnall v. Howard ii 332 
 
 Davenport v. Daviea 1 801 
 
 Davidson v. Cooper i 643 
 
 Da vies v. Brown ii 308 
 
 V. Daviea ii 385. 966 
 
 V. Kdwarda 1807 
 
 V. Humphreys i 341, ii 311 
 
 V. Lewia i 230 
 
 dem. Lowndea ten i 245, 269, 272, 644. 
 
 ii B7, 630 
 
 V.Lloyd 1356 
 
 V. Morgan i 219, 243, 275, 345, 346 
 
 V. Pierce i 304, 312, 527, 529 
 
 V. Ridge 1 600 
 
 V. Waters 1145 
 
 Davis V. Capper ii 104 
 
 V. Chapman, i 887 
 
 V. Dale ii 896 
 
 V. Dlnwoody 1 83, 486 
 
 V. Dodd i 596 
 
 V. Dunn i 879 
 
 V. Lloyd 1 373, 306, ii 283 
 
 V. Morgan i 4i 
 
 V. Reynolds i 680 
 
 V. Vaas ii 413 
 
 V, Williams ii 444, 454 
 
 Dawson V. Chamncy i (1,33 
 
 V. Gregory ii 294, 389. 308 
 
 V. Macdonald 11328 
 
 V. Remnant i 478 
 
 Day V. Bower i 807 
 
 V. Daviea i 803 
 
 V. Trigg ' ii 643, 7.38 
 
 V. Wiiliama i 674 
 
 De Bertram V. Smith 14(16 
 
 Bode (Baron), Case of ii 215, 428 
 
 Gaillon v. L' Aigle i 7.-6 
 
 Lis'le Peerage— (See Lisle Peerage) i 2.B 
 
 Rutzen v. Furr i 347, ii 9111 
 
 Sailly V. Morgan ii 959. 962, 963 
 
 Whelpdalev. Milbnrn 1 471, 528, ii 15 
 
 Deacle v. Hancock i 233, 342, .310 
 
 Deady v. Harrison i 5,30 
 
 Dean v. James i ago 
 
 Detuie V. Robson 1623 
 
 Delafleld V, Freeman 11399 
 
 Delamotte v. Lane 1 749 
 
 Delany v. Teniaon 1 6.39 
 
 Delugal V. Highley i 772 
 
 Denn v. Barnard 1 449 
 
 d. Lucas v. Fulford ii 347 
 
 d. Peters v. Hopkinson ii 794 
 
 V. Spray 1 236, 11 219, 235, 294 
 
 V. White i 80, 517 
 
 Desborongh v. Rawlins 1 158, 160 
 
 Despard'a Case ^ee R. v. Despard) i 106 
 
 Devenoge v. Bouverie . . . ". ii 326 
 
 Deverell v. Whitmarah 1 471, 472, ii 652 
 
 Devizes 'Mayor v. Clark) 11 1013 
 
 Devon Witchea. Case of ....1534 
 
 Dewdney v. Palmer 1 71, 98 
 
 Dewhurst's Case— (See R. v. Dewhurst). 
 
 Deybel'sCase 1625 
 
 Dicas V. Brougham (Lord) .i 623 
 
 V. Lawson ii 833 
 
 Dicken V. Lodge 1311 
 
 Dickinson v. Coward 1 434, 435, 465 
 
 V. Shee ii 906 
 
 V. Valpy 1 466 
 
 Dickson v. Evans i 821 
 
 Digby V. Steadman i 354 370 
 
 Dike V. Polhill 1 268, ii 93 
 
 Dillon V. Harris 11 744 
 
 V. Parker ii 1013 
 
 Dimond v. Vallance ii 855 
 
 D'Israeliv. Jowett ii 289 
 
 Ditcham v. Bond 1 674 
 
 Ditchburn v. Goldsmith i 168 
 
 Ditcher v. Kenrlck 1 154 
 
 Dixon V. Dixon i 64Q 
 
 V. Hamond i 469 
 
 V. Vale 11 935, 936 
 
 Dobell V. Stevens ii 688 
 
 Dobree v. Eastwood 1 644 
 
 Dobson V. Bell ; i 622 
 
 Dockwray v. Dickinson . ; i 853 
 
 Dodd V. Norris : 1 760, 946, 961 
 
 Doddington's Case i 472 
 
 Doe V. Askew ii 294 
 
 d. Cheppard V. Allen i 444 
 
 d. Small V. Allen , ii 685 
 
 d. Jupp V. Andrews i 156, ii 819 
 
 d. Stansbury v. Arkwright 1 315. ii 291 
 
 d. Manton v. Anstin ^ i 311, 467 
 
 d Bowley v. Barnes '. i 694 
 
 d. Wollaston v. Barnes ii 2T9, 446 
 
 d. Higginbotham v. Barton i 467 468 
 
 d. Bamford v. Barton i 273 
 
 d. Cheney v. Batten i 444 
 
 d. Johnson v. Baytup i 467 
 
 d. Hall V. Benson ii 794 
 
 d. Thomas v. Benyon i 480, 481, 618 
 
 d. Kinglake v. Beviss i 344 
 
 d. Leicester v. Biggs 1 443 
 
 d. Lewis v. Bingham i 69, 643 
 
 d. Nash V. Birch i 444 
 
 d. Willis V. Birchmore i 69, 467 
 
 a. Wetherall V. Bird i 506. 524 
 
 d. Hatch V. Bluck 11350 
 
 d. James v. Brawn 1 693 
 
 d. Warren v. Bray i 589, ii 279 
 
 d. Winnall V. Broad i 801 
 
 d. Brown v. Brown , .ii 643 
 
 d. Bacon v. Brydges i 880, 888, 11 10. .342 
 
 d. Nepeau v. Budden i 467 
 
 d. Spilsbury v. Burdett i 473, 484 
 
 d. Haddea v. Burton i 843 
 
 d. Priestley v. Callaway ii 446 
 
 d. Ash V. Calvert i 443, ii 0.3, 449 
 
 d. Counsell v. Caperton i 632, ii 49.3, 605, 
 
 550, 576 
 
 d. Lord V. Cargo i 578 
 
 d. Suit V. Can- ii 697 
 
 d. liiugliam V. Carlwright 1 579. ii 578 
 
 d. Smith V. Carlwright' i 810, ii 291 
 
 d Davis V. CntiiciT 11281 
 
 d. Udders V. C'iulwullcr 1 444 
 
 d. r.:uik 111 Eusland V. Chambers ii 471 
 
 d. Oxnulmi V. ChiclK'stor ii 643 
 
 d. Wilkiiif V. Clovolniid(Lord>.. 1449. 674, 11 4.«B 
 d. Loecombe v. Clifford. . .i 680, ii 653, 695, 81B, 
 
 d. Higgs V, Cockell ii 531 
 
 d. Bodonham v. Co:combe i 346 
 
 d. Coyle V. Cole 1 528, 593, ii 553 670 
 
 d. Hammond v. Cook i 1173 
 
 d. Harding v. Cook i (i46 
 
 d. Fryer v. Coombs i 643. il 671 
 
 d. Daniel v. Coulthred 1 812, 833 
 
 V. Cox ;.. ii 8S7 
 
TABLE OP CASES CITEI3. 
 
 Ixiii 
 
 Doed. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 
 V. 
 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 (I. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 
 V, 
 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 
 V. 
 
 d. 
 
 d. 
 
 Dunning v. Cranstoun ii 6-18 
 
 Wyndham V. Date ii 816 
 
 Jeakina v. Davies i 6, ii 618 
 
 Davieav. Davia ii 503 
 
 Lloyd V. Deakin i (i40 
 
 Oldnall V. Deakin i 640 
 
 Foater v. Derbv (Earl) . ..i 402, ii 10, 17, 245 
 
 Pritchard v. Dodd i 257 
 
 Dring ii 737 
 
 Sykes V. Dnrnford ii 467 
 
 Laario v. Dyeball i 64l> 
 
 Duncan v. Edwards i 6S4. ii 346 
 
 Marriott v. Edwards i 468, 880, 88) 
 
 Eowcliffe V. Egremont (Earl; ii 935 
 
 Marchant v. Errington i 472 ii 6 
 
 Poolo V. Errington i 879. 885, 888 
 
 Lloyd V. Evans i 481, ii 262 
 
 Fleming v. Fleming , . i 274, 631 
 
 Clarges ,v. Forster 1443 
 
 Derby (Earl) v. Foster ii 216 
 
 Frankia v. Frankis i 445 
 
 Barrows V. Freeman ii 294 443 
 
 Ilandson v. Fyldes ii 73r 
 
 Smith V. Galloway ii 737 
 
 Goaley v. Gosley ii 915 
 
 Nanny v. Gore ii 413 
 
 Kgremont V. Grazebrook i 274 
 
 Green i 334 
 
 Harrop v. Green i 50 
 
 Brown v. Greening ii 643 
 
 Wartney v. Grey ii .531 
 
 Barring v. Griflin 1269, 640 
 
 .GuMim V. Guillim ii 763 
 
 Edwards v. Gunning ii 75, 451 
 
 Davy V. Haddon 11 102 
 
 Wbitaker v.. Hales i 444 
 
 Hall ii 446 
 
 Simpson v. Hall .< i 886 
 
 Harrison v. Hampson i 648 
 
 Uarcourt ii 271 
 
 Eliiav. Hardy 11086 
 
 Barlow ii 11 
 
 Eeed v. Harris i 181 
 
 Shellard v. Harris i 132, 142 144 
 
 Haldane V. Harvey ii 650 
 
 Northey V. Harvey i 371 
 
 Sayer v. Hatton , i 69 
 
 Graham v. Hawkina i 346, 347 
 
 Parsons v. Heather i 885 888 
 
 Tyndale v. Heming ii 488 
 
 Pntland v. Hilder i 622, 674 
 
 Hisoocka V. HisGocks ii 636, 716 769 
 
 Preedy v.' Holtom ii 643 
 
 Huddart ii 11,42, 43 
 
 Chevalier v. Huthwaite ii 735, 780 
 
 Carter v. Jamea i 146 
 
 Pritchard V. Jaunoey i 136. 527 
 
 George v. Jessou i 640 
 
 Caldecott v. Johnson :i 816 
 
 Whittick V. Johnson i 646 
 
 Baggaley v. Jouea i 333, 627 
 
 Katz 1886 
 
 Stirewsbury (Earl) v. Keeling ii 443, 
 
 480 
 
 d. Barrett v. Kemp i 753 
 
 d. Ubele v. Kilner i 580, ii 582, 595 
 
 d. Egremont (Lord) v. LaDgdon..i...i 155, 156 
 
 d. Haghea v. Lakin i 236, ii 282 
 
 d. Walsh V. Langfleld i 213, 353, 646, 
 
 ii 356 
 
 d. Sricerv. Lea ii794, 793 
 
 d. Edwards v. Leach i 885 
 
 d. Mee v. Litherland i 528 
 
 d. How^ell V. Lloyd i 673 
 
 d. Williams V. Lloyd 1623, ii 356 
 
 d. Bennett V. Long i 880 
 
 d. Tyrrell V. Lyford ii 643 
 
 d. Maddook v. Lyne ii 618 
 
 d. Orzel v. Madox ii 281 
 
 d. Martin v. Martin ii 327 
 
 d. Tem pieman v. Martin ii7'5 
 
 V. Mason •• i 244, ii 454 
 
 d. Griffin. v. Mason i 643 
 
 d. Kaaon v. Mason ...;...: i 052 
 
 d. Woodmasv. Mason....... 1 624 
 
 V. Cawthoru v. Mee ii 445 
 
 d. Bassettv.Mew ii 451 
 
 d. Bamford v. Miller i 885 
 
 d. BailBnv. Mills i 467 
 
 d. Waithmanv. Mills i 42S 
 
 d. Start V. Mobbs 1S46, ii 916 
 
 Doed. 
 d. 
 d. 
 d 
 d. 
 d. 
 d. 
 a. 
 d. 
 d. 
 d. 
 d. 
 d.- 
 d. 
 d. 
 d. 
 d. 
 ,d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 
 d. 
 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 d. 
 v. 
 d. 
 d. 
 
 Morgan v. Morgan ii 777, 780 
 
 PhilTips v. Morris 11525 
 
 Wood v. Morris i 378 
 
 Harrison V. Murrell i 40 
 
 Gord V. Needa ii 761, 780 
 
 Knight V. Nepeau 1 MO 
 
 Perry v. Newton 11610,615, 620 
 
 Bengo V. NiohoUa i 73 
 
 Garrodv. Olley 11295 
 
 Weld V. Ormerod ' i 26S 
 
 Bowdler v. Ormerod i 238 
 
 Bowdler v. Owen ii440. 481, 352, H17 
 
 Brimley v. Palmer i 444 
 
 Lloyd V. Passingham 1389 
 
 Wildgooae v. Pearce ii 440, 480 
 
 Pring V. Pearaay i 043 
 
 Shearwood v. Pearson i 578 
 
 Flower V. Peck i 444 
 
 Briatowv. Pegge i 467 
 
 Hallv. Penfold ii 468 
 
 Johnsons V. Pembroke 1 2.58 
 
 Church V. Perkins ii 578, 917 926 
 
 Winter v. Perratt ii 6.S2 
 
 JIumanv. Pettett 1311 527 
 
 Jaooba v. Phillips ii 440 
 
 Smith, v. Pike i 647 
 
 Hardman v. Pilkington i 885 
 
 Blakenell v. Plowman i 622, 674 
 
 Beard v. Powell ii 498 
 
 Oliverv Powell i 468 
 
 Woodhouse v. Powell i 643, 704 
 
 Lewes V. Preeoe ii 11 
 
 Egremont (Earl) v. Pulman i 283 
 
 Wihchley v. Pye 1444 
 
 Jackson v. Eamsbottom i 468 
 
 Futter V. Handall i 230, 268, 271, 273, 
 
 Fenwick v. Eeed i WS 
 
 Pearson v. Ries ii 643 
 
 Hulin V. Eicharda i 323 
 
 Hindly v. Eickarby i 833 
 
 Sutton V. Eldgway i 212, 271, 286 
 
 Willan V. Roberts ii 294 
 
 William IV v. Eoberts ii 444 
 
 Eeeoe v Eobson i 301, 340, .344, 347 
 
 Morris v.Eoe ii 326, 8SS 
 
 Tindalv.Eoe i BC6 
 
 Gilbert v. Eoss ii 350, 552, 569, 816, 817 
 
 Morria v. Rosser '. ii 1C3 
 
 Worceater (Trustees) v. Eowland i 812 
 
 Toilet V. Salter .i 869 
 
 Neale v. Samples i' 440, 4E0 
 
 Blayney v. Savage i 310, ii «6 
 
 Graham v. Scott i 673 
 
 Strode v. Seaton i 153, 468, 528, B'<9, 
 
 ii 11 43, 291 
 
 Poster V. Siaaon 1219,244, 743 
 
 Padwickv. Sldnncr i 357. 360 
 
 Molesworthv. Sleeman ..i 219 
 
 Hanson V. Smith !! 446 
 
 Jersey v. Smith ....■" 73a 
 
 Wright v. Smith i 604, 606 
 
 Knight V. Smythe ..i 4OT 
 
 Fleming v. Somerton " 644 
 
 Curtisv. Spitty i; 527 
 
 Lichfield (Earl) v. Stacey i 346 
 
 Hodsden v. Staple i MS 
 
 Digby V. Steel ■.} 4i0 
 
 Walker v. Stephenson ii 97o 
 
 Clarke v. Stillwell } M4 
 
 Gainafordv. Stone i 4i3 
 
 Mudd V. Suckei-more ii 696, 601, 609, 618 
 
 Bowerman V. Sybourn 1479 673 
 
 Tilman v. Tarver i 281, u 618, 619 
 
 Conrtail v. Thomas 1 140, ^54, 155, 169 
 
 Didabury v. Thomas ..; 231 
 
 Clarke v. Thomaon }} SSi 
 
 Teynham v. Tyler ii 15 
 
 Strode v. Seaton 1} 11 
 
 Marcliant v. Errington ii 6 
 
 Mahtonv. Thrupp } o.i7 
 
 Tooth .' • I „42 
 
 Weijber v. Ths'nne (Lord George) x 340 
 
 Pattershall v. Turford. . . .i 306, 339, 354. 360, 
 362, 643 
 
 1 69, 306, 336, 
 ii 15 
 
 Gallopv. Vowlea ii806, m 
 
 Eowlandson v. Walnwrigbt. . . .1 486, u 488, 
 
 Stephenson v. Walker i 757, ii 875 
 
 d. Teynham (Lord) v. Tyler; 
 
Ixiv 
 
 TABLE OF CASES CITED. 
 
 Doe a. Oiaham v. Walley ii 481, 4S5 
 
 V. Wallinger li 601 
 
 a. Peter v. WatkinB i 142, 1B3, 166 
 
 a. Lowaen v. Watson 1 433, 468 
 
 d. Smitli T. Webber ii 17, 103 
 
 a. Sweetland v. Webber i 313, 529 
 
 a. Norton v. Webster ii 659, 736 
 
 a. Westlake v. Westlalie. ii 781 
 
 d. Briager v. Whiteheaa i 816, 821 
 
 a. Marlow V. Wiggins i 467 
 
 a. Jones T. Wilde i 69 
 
 a. Wooa T. Wilkins ii 447 
 
 a. Armstrong V. Wilkinson i 837 
 
 a. Morse v. Williams ii'17, 569 
 
 a. Foley V. Wilson i 674 
 
 a. Baraett v. Wright i 674 
 
 a. Hanley v. Wright i 673 
 
 a. Hopley V. Young 1 435 
 
 Doker V. Hasler i 79 
 
 Dolbyv. lies i 467 
 
 Doiaer T. Huntingfieia (Ld.) i 630 626 
 
 Domett V. young i 434 
 
 Donaiasonv. Thompson 1630, ii 171, 176 
 
 Doncaster (Mayor) v. Day 1 400, ii 217 
 
 Donellan's Case 1 831 
 
 Bonnison .v. Blsley i 329, 230, 234 
 
 Door T. Geary ii 738 
 
 Dormer v. Fortescue i 50, 66 
 
 Douglas' Case ii 822 
 
 V. Forrest ii 204 
 
 V. Holme i 647 
 
 v. Seougal i 629 
 
 Dover v. Maester i 580 
 
 Dowaen t Fowle i 464, 488 
 
 DOwdeswell v. Nott i 41 
 
 Dowlingv. Ford 1601, 502 
 
 Down's Case i 869 
 
 Downes v. Moreman ii 444 
 
 V. Skrymsher i 854 
 
 D6wning v. Butcher i 761 
 
 Downs V. Cooper 1 468, 517 
 
 Dcwset V. Sweet ii 717 
 
 Dowton V. Gross i 489 
 
 Doxon V. Haigh ii 514 
 
 Drabble V. Donner ii 531 
 
 Drake v. Marryat ii 303 
 
 V. Smith (or Smythe). . .1 337, ii 270, 293, 448 
 
 V. Sykes i 521 
 
 Drant v. Brown i 579, il 578 
 
 Draper v. Crofts i 444 
 
 Draycott V. Draycott ii 281 
 
 Drayton v. Dale i 468 
 
 Dresser y. Clarke i 69, 45 
 
 T. Stansfleia ii 400 
 
 Drew T. Prior ii 603 
 
 Driffleia v. Orrel ii 371 
 
 Drinkwater v. Pater i 233 
 
 Drummond'fl Case i 286, 288 
 
 Dn Barre v. Livette i 133, 136, 133 
 
 Du Bost V. Beresford i IbO 
 
 Ducket T. Williams ii 251 
 
 Ducksworth v. Harrison i 8S2 
 
 V. Johnson i 94 
 
 Dufferin (Lora) Case of ii 275 
 
 Duffln V. Smith 1 142, 157 
 
 Duins V. Donovan ii 280 
 
 Duncan V. Hill i 802 
 
 V. Louch i 859 
 
 V. Scott i 468, ii 363, 379 
 
 Dnncombe V. Daniell i 625 
 
 Dundas v. Weymouth (Lord) i 861 
 
 Dunforav. Trattles 1794 
 
 Dunn V. Aslett ii 093 
 
 ^ V. Murray ii 113 
 
 ' V. Packwooa i 166 
 
 Dunn V. Slee .i 536 
 
 Dunster v. Tresiaer i 795 
 
 D up uy V. Truman .' 11917 
 
 Dupuya v. Shephera i 610, ii 375 
 
 Durham (Bishop) v. Beaumont 1 286, ii 975 
 
 (Corp.) V. Boxburgh puohoss) ii 800 
 
 Dnrrell v. Beaerlcy i 781 
 
 Durston v. Tutbam 1 846 
 
 Dutton V. Colt i 18, ii 318 
 
 Dyke v. AMridge: ; ; '. i 488 
 
 V. Brewer ii 881 
 
 Dyson v. Wooa ii 800 
 
 ^- 
 
 Bagleton y. Kingston ii 596, 002. 610 
 
 Bakins v. Tresham 11 6as 
 
 Eamer v. Merle i 761 
 
 Eardley v. Turnook 1 859 
 
 Earl a. Gooawin v. Baxter i 704 
 
 V. Lewis ii391, 393 
 
 Earle v. Picken i 433, 634 
 
 East Inaia Company v. Glover .-.• • -^ '^^ 
 
 Easlimure v. Lawes ii 36, 35 
 
 Eastwick v. Harman .i 800 
 
 Eaton V. Jervis ii 615 
 
 V. Lyon ii 804 
 
 Eccles V. Hill ii 364 
 
 Eccleston v. Petty (or Speke) 257, 288, 485, 632 
 
 saen V. Blake ii 679 
 
 V. Bute (Lora) ii 735 
 
 •Bagar V. Blick. .1 579 
 
 Eagell V. Curling ii 833 
 
 Eaie V. East India Company i 631 
 
 Edmorids v.-Rowe. i 19 
 
 «. Walter ii 894 
 
 Edmonstone v. Elaisted ii 377 
 
 V.Webb ..i 597 
 
 Edmunds v. Downes ii 745 
 
 v. Greves i 797, 798 
 
 V. Newman i 525 
 
 Bdwaras' Case 1 464 
 
 V. Crock i 92, 181, 644 
 
 V. Lucas i 361 
 
 V. M'Leay ii 688 
 
 V. Kees i 306 
 
 V. Eonaia ii 205 
 
 V. Sharren ii 276 
 
 V. Vesey ii 308 
 
 Egg V. Barnet ij 703 
 
 Ehrensperger v. Anderson ii 527 
 
 Eicke V. Nokes i 157, 450 
 
 EkinB V. Dormer ^ .i 310 
 
 Eiaen V. Keaael 11 452 
 
 Eiaerton's Case 1 619 
 
 Eiaridge V. Nott i 659 660 
 
 Elgar V. Watson i 787 
 
 Elkin V Janson i 816 
 
 Elliott V, Edwards 1623 
 
 Ellis V. CowBe i 370 
 
 V.Hardy i 181 
 
 V. Saltan 1 166 
 
 V. Wall 1 785 
 
 V. Watson 1 470, ii 387, 3b9 
 
 El? am V. Faucett i 181, 700 
 
 Elston V. Wood 1 491 
 
 Elton V. Larkins i. 506, 524, ii 288, 972 
 
 Elwes V. Elwes -- i 627 
 
 Ely (Bishop) v. Bentley ii 102 
 
 (Dean and Chapter), v. Oaldecott . .1 173, 310, 448 
 
 V. Stewart ii 481 
 
 V. Warren i 754 
 
 Emerson v. Blonden i 92. 518 
 
 Emery v. Grocock .i 673 
 
 Emmett v. Butler i 51, 62 
 
 V.Norton 122,787 
 
 England d. Syburn v. Slade i 468,673 
 
 Ennis V. Donuisthorne, i 401 
 
 Entick V. Carrington ii 519 
 
 Eriskine v. Murray i 621 
 
 Ernest V. Brown 1860,886 
 
 Errington's Ca8e~(See R. v. Errington). 
 
 Erskine v. Ruffle 1 743 
 
 Essex (Earl), Case of— (See R, v, Essex). 
 
 Evans v. Beattie i 526 
 
 V. Birch i 675 
 
 ■ V. Evans i 627 
 
 V. Fryer 1 881 
 
 v. Getting ii 800 
 
 V. Lake i 358, 489 
 
 V. Lewis 1 853 
 
 V. Morgan '....i 274,689 
 
 v.NichoU 1469 
 
 V, Ogilvie i 793 
 
 V. PhUlps li 807 
 
 V. Pratt ii 709 
 
 V. Rees, i 219, 386, 237, 239, 247, u 443, B24, 841 
 
 V. Sweet ii 627 
 
 V. Taylor i 286, ii 298, 414 
 
 V. y eatheard 1 73 
 
 Evelyn V. Haynes ii 82 
 
 Bvoringham v. Roundell ii 572 
 
 Everett v. Lowdham ii 885 
 
 Everth v. Bell : i 789 
 
 v.Hannom ii 174 
 
 Ewensv. Gold i 74 
 
 Ewer V. Ambrose ii 881, 962, 991 
 
 V. Preston l 439 
 
TABLE OF CASES CITED. 
 
 Ixt 
 
 3Exeter (Mayor) V. Coletnan 11 815 
 
 V. Warren 1 840, 846 
 
 Bxon V. EuBsell i 845 
 
 Eyrev.Palgrave ...li 464 
 
 Faljrigasv.MoBtyn i 519 
 
 Faohina V Sabine 1 17 
 
 Pa>;an V. Diwson 161, ii 355 
 
 Fairliev. Denton 1170, 173, 444 
 
 V. Hastings 1507, 514 
 
 Fairmaner v. Bndd 1 474 
 
 Faith V. Pearson 11 174 
 
 Falcon V. Benn 1 830 
 
 Falconer v. Hanson 1 411. ii 251 
 
 Falmonth (Earl) v. Moss 1 137 
 
 V. Roberts 11483,498 
 
 Farrar V. Hutchinson 1 474 
 
 Farriugdon V. Clerk , 1469 
 
 Fasset v. Brown i 643, ii 508 
 
 Faulderv. Silk il 2BB 
 
 Fawcett v. Fowlie il 104 
 
 Faznkerlv v. Wiltshire 1 626 
 
 Fellows V. Clay 1 649 
 
 V.Williamson 1 186 
 
 Penn d. Pewtress v. Granger 1 57, 68 
 
 d. Thomas V. Grlflith 1576,578 
 
 Fenwick (Sir .1 ), Case of 1 167 
 
 V.Hall 1784 
 
 v.Eeed 1 185 
 
 V.Thornton 1490 
 
 Ferguson v. Mahon 1 623, 80O, 11 139, 192, 203 
 
 V.Spencer 1 74 
 
 Fermcr v. Loraine 11 270 
 
 Fernley V. Worthington 11556 
 
 Ferrand v. MiUigan ii 1012 
 
 Ferrars V. Arden 11 32 
 
 Ferrer V Oven 11400 
 
 Ferrers V. Shirley 1479,11601,602 
 
 Field V. Beanmont : 11 816 
 
 V.Curtis 1 74 
 
 V Heming or Fleming. i 606 
 
 Fielder V. Ray 1 578 
 
 Flag V. Wedderborne i 2.52 
 
 Pllliter V. Minchin ii 615 
 
 Filmer v. Gott ii 6^8 
 
 Finch V. Messing 1 .'i06 388 
 
 Finden v. Westlake 1171.446 
 
 Firkin v. Kdwards li 5i7 
 
 Firminv i:ruciflx i 794 
 
 Fisher v. Boucher I 172 
 
 V. clement i 6.32 
 
 v. Dudding 113,55 
 
 V. Graves 1 S81 
 
 V. Hemlug 1 147 
 
 V. Kitchingman ii .861 
 
 V. Lane 11 1.86. 389 
 
 V. Ogle li 171 174, 176 
 
 V. Wainwright 1802,808 
 
 Fishmongers' Co. v. Dimsdale 11 48.S 
 
 V. Robertson i 467, ii 463, 488 
 
 Fitch v, Smallbrook ii .861 
 
 Fitz V Rabbitts ii 567 
 
 Fitzgerald v. Blsee ii 604 
 
 V. Fanoonberg i 643 
 
 Fitzj 'mes V. Moys i 15 
 
 Pitzwalter Peerage Case 1 365, 450, ii 61 9 
 
 Flad Owen, Case of ii 176 
 
 'Fleming v. Gooding i 467 
 
 Fletcher v. Braddyfi 1 645, 780, ii 294 
 
 V. Calthrop i 642 
 
 V. Froggatt i 406, 420 
 
 V. Greenwell i 42 
 
 , Filndt V. Atkins ii 416 
 
 Plinn V. Callow ., .^ 11 651 
 
 Flower v. Herbert 1 74, 464 
 
 V. Tonng ii 285 
 
 Folkardv. Hemet 11 312 
 
 Folkes V. Chad 1 778 
 
 Fonnereau v. Poyntz il 737 
 
 Fonsick V. Agar ii 261 
 
 Foote V. Bayne 1 ISi 
 
 Forbes V. Wale... 11480.481 
 
 Ford V. Gay li 213 
 
 V. Tatei ii 680 
 
 Forley d. Canterbury (Mayor) v. Wood il 794 
 
 Porman v^ Dawes 1883,887,11 342 
 
 Fort V. Clarke 1 267. 471 
 
 Fortyv.Imber 1828 
 
 Foster's Case— (See B. v. Foster). 
 
 Foster V. Bank of Engl«nd U 811 
 
 Foster V. Blakelock 1 478 
 
 V.Charles i 633 
 
 V. Cnmpton ii 861 
 
 V. Jolly il 673. 691 
 
 V. Pointer 1886, ii 627 
 
 V. Steele i 629 
 
 Fonlkes v. Sellway 1180, 760 
 
 Fountain v. Boodle i 632, 761 
 
 V. Young i 136 
 
 Fox V. Jones ii 807 
 
 V. Waters 1423 600 
 
 Fradley V. Fradley i fi37 
 
 France V.Lucy 11.526 
 
 Francla's Case i 666, 11 540, 696 
 
 Francis v. Doe i 467 
 
 Francisco v. Gilmore ii ''^51 
 
 Frankv.Frank ii 26l> 
 
 Frankland v. M'Gusty ii IM 
 
 Franknm v. Falmonth (Earl) i 888 
 
 Eraser v. Hopkins ii 21^5 
 
 Freeman v. Arkell i 166. ii 665 
 
 V.Baker ii 289 
 
 V. Phillipps i 236, 243, 247 
 
 Fremonlt V. Dedire 11428 
 
 Friedlander V. London Ass. Co 11992 
 
 Progmorton v. Scott 1 4 7 
 
 Frognell v. Lewelyn 1 431 
 
 Frontlne V. Frost 1821 
 
 Frost v Holloway ii 943, 946 
 
 Proswell V. Welsh 1643 
 
 Fry V.Wood 11480 
 
 Fuller V. Frotch 11101.104 444 
 
 V. Lane i ' 62 
 
 V. Prentice li 827 
 
 Furley v. Newnham ii 82i. 861 
 
 Purneanx V. Hutchlngs i ''63, <54 
 
 KumesB v. Cope i 595 
 
 Pnrsdonv. Clogg 1 804 
 
 Fysoii v. Kemp ii 354 
 
 Gahan V. Mainjay H 135 
 
 Gair sford v. Grammar 1 140, 169 617, 62H, 524 
 
 Galbraith v. Neville ii 136. 182 
 
 GalB v. Half knight.... 1202 
 
 V.Lewis 1 7m 
 
 v. Williamson ii 6? 5 
 
 Ganer v. Lanesborongh (Lady ) i 623, ii 428 
 
 Oanvill V Utting i 594 
 
 Gape V. Handley ; Ij 8( 
 
 Garden v. (.'resswell ii 829 
 
 Gard iner Peerage Case 1 182. 266 479. 630, 631 
 
 Gardiner v. Tadis .-.. i T60 
 
 Gardner v. Merett ii 215 
 
 V. Moult ; 1 449, 450. 517 
 
 Garland v. Scoones 11 36t 
 
 Garnet V. Ball i 617 
 
 Gamett v. Ferrand ii 103 
 
 Garnons v. Bernard i 283 
 
 v. Swift 1570, ii 5';i 
 
 Garrela v. Alexander li 6f 6 
 
 Garrett v. Handlev ii 682 
 
 v.Lister .„ 'i 4£2 
 
 Garrickv. Williams ' "^ 5rU 
 
 tjarthv. Howard 1 oJ . 5:3 
 
 Oartside V. Radcliffe ' 6';9 
 
 Gas Company v. Clarke " °iO 
 
 Gath-.rcote V. Miall ii 654 
 
 Gaunt V. Walnman i 472. ii 6 
 
 Gauntlett v. Whitworth i '!"i'9 
 
 Geach v. Ingall ;! t*''* 
 
 Geery v. Hopkins ii 311 
 
 George v. Surrey i' 596 
 
 V.Thompson 11527 
 
 Gerish v, Chartier 1763,1; 901 
 
 Germain v. Frederick i 852 
 
 Geyer v, Aguilar ii 99 171 
 
 Gibbon V. Coggon .' i 4t.9 
 
 V. Fealherstoneliaugh i 708 
 
 T.Powell li 627 
 
 Gibbons V. Wilcox i 495 
 
 Gibbs V. Pike li 1012 
 
 Gibson v. Hunter 1760.111008 
 
 V. King 1869. 644 
 
 V. M'Carthy 1151,91 
 
 V. Winter 1484 
 
 Gignerv. Bayly ii 328, 828 
 
 Qilesv. Smith ii 659 
 
 T. Powell 11911 
 
 Gilham'sCasB 1534. 568 
 
 GiUv. SheUey UIBB 
 
 VOL.L 
 
 Oa 
 
Ixvi 
 
 TABLE OF CASES CITED. 
 
 Omara.v. Bates ::■/„■} iS, 
 
 QWiea v. Smither u 469, 557 
 
 OilUngham V. Laing i HZ 
 
 Gimblrt v. .Coyney u IM 
 
 Girdle'stone V. M-'Gowan i "0 
 
 Gistome v. Hart ii 400 
 
 Gladstone T.Neale i 851 
 
 Qlanville V. Paine ••;---i °® 
 
 Glavev. Wentworth il 363 
 
 Gleadow v.. Atkin i 344, 347,, 364, 366, 370, 526 
 
 Gleiiister t. Thynne (Lady B.) 1 466 
 
 GIossop V. Pole Ii 268 
 
 Glubb V. Edwards ii 493 
 
 Glyii Y. Houston 11 818 
 
 Glynn v. England (Bank) 1 338, 364, 368 
 
 T. Thorpe 11 2 
 
 G6ater V. Nunnely ii 326 
 
 Goddard's Case 11168,660 
 
 GOddard T. Ingram i 502 
 
 Godefroy T.Jay ii 365 
 
 Godfrey T. Norris 11 492 
 
 V. TnmliuU ii 876 
 
 GOdmanchester. CBailiffs) v. PMllips .... i 39, 103, 648 
 
 Godson T. Smith il 32 
 
 Gbflf v. Mills : ii 889 
 
 Gold V. Canham... 11 181 
 
 Qoldie V. Gunston 1 457, 464 
 
 T. Shuttleworth, 1 583 
 
 Gblning v. Niaa 1 69 
 
 GbWschmidt v. Marryat 11 332 
 
 Goldschmidt.v. Meyer ii 323 
 
 Goldshedev. Swan ii 760 
 
 Gbodacre v. Breame i 73 
 
 Obodered v. Armour 11 541 
 
 Gbddes v. Wheatly .1 829 
 
 Goodinge v.. Gobdinge ii 713, 768 
 
 GoodUff Y. Waller 11 321, 323, 829 
 
 Goodman y. Chase il 760 
 
 Goodrich V. Jones 1 146 
 
 Goodright d. Charter y. Cordwent i 144 
 
 d. Walter v. Davids i 144 
 
 d. Steyens v. Moss. 1 87, 161, 855,869, 863, 
 270, 2T9 
 
 V.Saul _ 1267,630 
 
 Goodtitle d. Pajker v. Baldwin 1 660, 674 
 
 d.. Revett v. Braham i 779 
 
 d. Bridges v. Chandos 0uke) .... 1 339, 704 
 
 d. Bralne v. Dew i 819 
 
 d. Pinsentv.Iiammiman i 859 
 
 d. Baker v. JIalbttm 1 644 
 
 v. Southern . , 11 643, 735 
 
 . d. Bremridge Y. Walter i 859 
 
 Gbodwln v. West ii 819 
 
 Gbrdon v. Austin. I 845 
 
 v. Gordon 1 861 
 
 T. Secretau 11 486, 489 
 
 (Lord George), Case ol (see K. v. Gor- 
 don) 1206 
 
 Qorham Y. Thompson .11 276 
 
 Gorton v. Dyson 11 451 
 
 Goslin Y. Corry il 1012 
 
 Gosling v. Birnie 1 469 
 
 Goss v. Nugent (Lord) 11 637, 665, 692 
 
 Y. Quinton 1 420, 425 
 
 - Y. Tracey li 492 
 
 . . Y, WatUngton i 307, 488, 525, il 291 
 
 Gough V. Cecil ii 565 
 
 Qonld V. Barnes 1 466 
 
 Y. Jones 11 618 
 
 . v. Oliver i 793 
 
 Qotldsworth v. Knight 1 468 
 
 Qraoewbbd v. -^. — 11 326 
 
 Qriflon (Duchess) v. Holt li 997 
 
 Graham, Case of 1 614 
 
 Y. Dyster li 538, 968 
 
 Y. Hopa 11 276 
 
 y..M»x*eU 11 178 
 
 V. Peat i 646 
 
 Y. Bobea-tson 11 852 
 
 Grant v. Gould 11 102 
 
 Y, Jackson 1432,470, 495 
 
 v. Maddox 11 790 
 
 Y. Moser 1 626 
 
 Gravemor y... Woodhouae 1 468 
 
 Graves v. Key 1 453, 474 
 
 Gray's Case 1 869 
 
 Y.Coqkson 11 104 
 
 . v.PaJmei; 1496 
 
 Qreaves.Y. Ashlin 11 679 
 
 Qtten (or Greene) v. Brown '. . .' l 642 
 
 V. Dunn i 480 
 
 Green (or Greene) v.' Gaturk 1 401 
 
 Y. Greenbank i 850 
 
 v. H&me i 785, 793 
 
 . V. Hewett 11264 
 
 V.Jones 1 76 
 
 Y. New Elver Co 11 3, 12 
 
 V. Pronde .11 271, 357 
 
 V. SmitMes.... 1 800 
 
 V. SUttbn 1 47 
 
 V.Waller 1 624 
 
 Y. Warburton 1 78 
 
 Greenlaw v. King i 858 
 
 Greenough v. Gaskell 1 134, 136, 142, 160 
 
 Greenshields. V. Crawford 11 608 
 
 Greenway, Ex parte i 596 
 
 Greenwood V. Woodham 11 276 
 
 Gregg's Case i 666 
 
 V.Wells 1438,454,465 
 
 Gregoiy Y. Christie 11 788 
 
 v. Doldge 1 468 
 
 V.Howard 1427, 431 
 
 v. Parker 1 93, B18 
 
 Grellier v. Neale. i 643, li 504 
 
 Greswold v. Kemp - 11 914 
 
 Greville v. Chapman 1 781 
 
 Grey Y. Sharp , 11 735 
 
 Grierson V. Byre 1 620 
 
 Griffin Y Smythe ii 326 
 
 Griffith V. Davies 1 159, 517 
 
 T. Matthews 1 652 
 
 Y. Williams 1584,11 615 
 
 Griffiths V. Ivory. 11 617 
 
 Grifflts Y. Payne , I 760 
 
 Grigg's Case 1 84 
 
 Grimwadev. Stephens 1269, 11103 
 
 Groenveltv, Burrell 11103,305,308, 320 
 
 Groom v. Bradley i 76 
 
 Grose Y. West 1647, 648 
 
 Grove Y. Ware 11 649 
 
 Grov«s T. Western Canal Co. i 464 
 
 Guest v.Caumont 1 859 
 
 v. Blwes 1 879, ffiS 
 
 Gnldon v. Bobson 1 466 
 
 Gully v. Exeter (Bishop) , 1 470, 529, U 553 
 
 Gunnis v. Erhart 11 678 
 
 Gunpowder Plot, trial for 1 564 
 
 Gunter v. M'Tear 11 855 
 
 Gurford v. Bayley 1 881 
 
 Qiirr V. Butten 1 173 
 
 Gutterldge v. Smith 1 791 
 
 Guy v. Gregory 1 795 
 
 T. West 1 648 
 
 Gullliam v. Hardy 11 386 
 
 (Juinness v. Carroll li 182, 192 
 
 Gwinnet v. Fhillipps 1 837 
 
 Gwynne Y. Sharpe 1 795 
 
 Gyles Y. Hill ii 354 
 
 H. 
 
 Habershaw v. Troby 1 160 
 
 Haddow y. Parry 1 sii 
 
 Hadley V. Green ii 21, 26 
 
 Hadrick v. Heslop 1 50, 66 
 
 Hagedorn v. Eeld i 358, 645, 11 573 
 
 Haigh Y. Brooks 11 760 
 
 Halre v. Wilson 1 632 
 
 Halden v. Glasscock ii 413 
 
 Halifax (LordX Case of 1 815 
 
 Hall's Case 1 jso, 540, 551 
 
 Hall V. Bainbridge 1 604, li 831 
 
 V.Bell 11566 
 
 V. Cazenove. ii 660 
 
 V. Farmer 11 448 
 
 v. Hill 1 sn 
 
 V. Hoddesdeu 11 219 
 
 V. Maulo 1 642 
 
 V. Odber u isi 
 
 Y. Eex 1 74 
 
 Halllackv. Cambridge (tTniv.) 1 642 
 
 Hallett V. Cousens 11894 
 
 v.Mears 1824 
 
 Halse V. Byston 11292 
 
 Haly v. Lane 1 468 
 
 Ham v. Toovey i (Int. Chap.) xvil 
 
 Hamilton v. Aston ^li 75 
 
 V. Dutch East India Co U 173 
 
 Hammerton v. Hammerton 1 627 
 
 Hammond v. Howell 11103 
 
 Y. Stewart Jl 819 
 
 Hamondv. — ■ — il S14 
 
 Hampshire v. Pelrce ii 730 
 
TABLE OjF CASES CITED. 
 
 Ixvii 
 
 Hanbury V. Ella i 882 
 
 HancocKT. Welah 11 11, 32 
 
 Hanford V. Palmer ...i 861 
 
 Hands V. James.,; I 643 
 
 Hankey v. Wilson '. , 1 488 
 
 Hannaford v. Hnnn il 108 
 
 Hansard v. Eobinson 1 596, 597 
 
 Hanson's Case— (See E. v. Hanson). 
 
 Hanson v. Parker i 486 
 
 V. Sbackleton i 625 
 
 Hany V. Broad 1 625 
 
 Hardcastle v. Sclater .■ ii 414 
 
 Hardie v. Grant. '. i (Int. Chap.) xvii 
 
 Harding V. Cretlitfm i 450 
 
 V. Greening 1 683 
 
 V. Jones i 4S1 
 
 Hardman v. Willcock i 469 
 
 Hardy's Case— (See E. v. Hardy). 
 
 Hardy v. Alexander 1 205, 206, 761 
 
 Hare v. Mnnn 1 74 
 
 V. Shearwood ii 676 
 
 Hargest v. Fothergill • ii 527 
 
 Hargravev. Hargrave i 254, 11 SUB 
 
 Harman v. Anderson 1 469 
 
 V. Tappendeii 11 103 
 
 V. Van Hattoii i 427, 431 
 
 Harmer v. Davis i 434, 464 
 
 Harper v. Brooke 1 SOB 
 
 V. Charleswbrth 1 650 
 
 Harratt v. Wise 11 276 
 
 Harrington v. Fry ii 509, 601, 603, 631 
 
 V. SlacmorrlS i 793 
 
 Harris v. Aldrit ii 328 
 
 v. Cook i 859 
 
 V.Hill.... 1154, ii 552, 816 
 
 V. Lincoln (Bishop) ii 735 
 
 V. Mantle...'. i 826 
 
 V. Tippet 11 900, 971 
 
 Harrison's Case i j534,,li 231 
 
 Harrison v. Bevlngton i 827, 955 
 
 v.Blades 1304,310,11499, 853 
 
 V. Douglas .1 792 
 
 V. Duhn : 1 (Int. CUap.) xs; 
 
 V. Harrison ii 505 
 
 V. Heathom-. i 466 
 
 V. Moore 1^26 
 
 V. Tallance 1 486, 631 
 
 V. Williams ii S15 
 
 V. Wood 1 807 
 
 y. Wright i 454 
 
 Harrow v. Eysllp 11 167, IB8 
 
 Hart V. Alexander ii 276 
 
 V. Hart 1 643, ii 559, 571 
 
 V. Horn i 70, 486 
 
 V.Newman 1451, 471 
 
 V. Stephens i 51, 79 
 
 Hartley v. Ifharton i ,883, 11 745 
 
 Hartshorne V. Watson 1 102 
 
 Harvey's Case— (See E. v. Harvey). 
 
 Harvey v. Clayton 1 1.39 
 
 V. Jolmston 1 889 
 
 V. Key 1 425 
 
 V.Mitchell 11 524 
 
 V. Morgan 11 527 
 
 Harwood V. Goodright i 639 
 
 V. Keys. 1490 
 
 v. Sims i 219, 233, 242, 280 
 
 Haslam's Case— (See E. v. Haslam) '. 1 109 
 
 Hastings Peerage Case ii 856, 357, 265 
 
 Hatch V. Blisset li 821 
 
 Hatfield V. Hatfield ii 90 
 
 Hathaway v. Barrow 159,11 50 
 
 Havelockv. Cook 1 435 
 
 V. Eockwood ii 17S 
 
 Hawes v; Watson 1 469 
 
 Hawkes V. Salter 1 645 
 
 Hawkesworth v; Showier 1 51, 88 
 
 Hawkins T. Howard 1 154 
 
 V. Eutt i 645 
 
 V. Warre i 579, 11 578 
 
 Hay V. Fisher i 862 
 
 Haynesv.Hare 11 644 
 
 V. Hayton 1422, ii 363 
 
 V. Holliday ii 788 
 
 Haysleep v. Gymer i 44.3. 444 
 
 Haywocra V. Flrmin 1276 
 
 Head v. Head i 630 
 
 Headlam v. Headley i 647 
 
 Healey v. Thatcher. i 171, 426 
 
 Healy V. Young ii 856 
 
 Heane v. Kogers 1 453, 464, 470 
 
 Heame v. Turner i 72 
 
 Heath v. Sansom , 1 798 
 
 Sebden, V. Freeman :..■,.: ■. . .1 292 
 
 Helyearv.Hawke 4"607, 513 
 
 Semitig V. 'Wilton ii 26 
 
 Hemming v. Parry 1 881 
 
 Hemmingsv. Eobinson 1 468 
 
 v. Smith i 632 
 
 Henderson v. Henderson 11 66, 192 
 
 v.Wild 1498 
 
 Henley v. Soper ii 193, 205 
 
 Hennel v. Lyon ii 381, 382 
 
 Henry v.Adey 1623, 624,11 416 
 
 V. Cole 1 619 
 
 V.Lee or Leigh.. ....... .1570, 11290,680, 925 
 
 Henshaw V. Pleasance ii Itil 
 
 Henson v. Cooper 11 677 
 
 Herbert v. Ashbumer. il 308 
 
 V.Cook... .11165, 182 
 
 V. Plgott 1 485 
 
 V. Eeid .ii 7S6 
 
 V. Tnckal 1250, 265 
 
 V. Walters 11 1011 
 
 V. Wllcocks i 202 
 
 Hereford (Bishop) v. Bridgwater (Duke) 11 3l3 
 
 Hearing 'v. Cloberry i 1S4 
 
 Herveyv. Hervey 1267, 274 
 
 Heskelh v. Fawcett 1 830 
 
 Heslop V. Bank of England ii 311 
 
 Hethorlngton v. Kemp,. ." 1 645 
 
 Hevey's Case i 564 
 
 Hewitt v.Tiggott 1414, 446, il 322 
 
 Hewsoh V. Brown ii 343 
 
 Heyj V. Moorbouse 1 578 
 
 Heysham v. Foster. 11 413 
 
 Hibberdv. Knight 1146 
 
 Hick v. Keats. i 703 
 
 Hiekey v. Burt 1 485 
 
 V. Hayter. i 478 
 
 Hicks V. Beaufort (Duke) 1461, 704 
 
 Higginson v. Clowes ii 678 
 
 Higgs V. Dixon ; .11 467 
 
 V. Taylor i 156 
 
 Higham V. Eabett 1859, 860 
 
 V. Eldgway. . . .1 248, 301, 305, 339, 340, 344, 
 347, 357 
 
 Highfleld v. Peake 11 261, 347, 381, 3^6 • 
 
 Higgins V. Senior li 681 
 
 Hilfyard v. Smith ii 380 
 
 Hillard V. Phaly 1258 
 
 Hill's Case i 559 
 
 Hill V. Aland ii 323 
 
 V. Bateman 11 104 
 
 V. Elliott 1 135, 431 
 
 V. Grange 11633 
 
 v.Kitchlng i 73 
 
 V. Manchester Water Works Co 1 284, 471, 
 
 449, -471, 473 
 
 V. Salt I 886 
 
 V. Saunders . . i 468 
 
 V. White .' i 799, 804 
 
 Hillary v. Waller ...1 673 
 
 gilliardv. Phaley ii 19 
 
 Hillyardv. Grantham 11 91 
 
 Hime v. Dale. ..;.... 1 686 
 
 Hirst's Case— (See E. v. Hirst). 
 
 Hltchln V. Campbell 11 87, 32 
 
 Hoarv.MlU i 187,839, 861 
 
 Hoare v. Coryton i 369, 489, 644 
 
 V. Graham ii 673 
 
 Hobhouse v. Hamilton 11 351, 682 
 
 Hobson V. Parker 11312 
 
 Hockiu V. Cooke 1 845 
 
 Hadenpyl v: Tlngerhoed i 498 
 
 Hodge V. Fillis .'...i 846 
 
 Hddges V. Atkis il 315, 820 
 
 V. Horsfall 11744 
 
 Hodgkinson v. Fletcher i 80, 646 
 
 V. Willis 11 382 
 
 Hodgson V. Fullarton 1 447 
 
 ■ v.Merest 1490 
 
 Hodnett v. Forman. ; ii 493 
 
 Hodsoh v.- Bharpe... ■.■...-. ■ ,1 467 
 
 Hoe V. Nathorpe or Nelthorpe li 93, 4B0 
 
 ■Hoflinanv. Pitt ■... 1 ' 74 
 
 ■Hogg V. Snalth ii 688, 673 
 
 Holcombe V. Hewson 1749 
 
 .Solcroft's Case— (See E. v. Holcroft). 
 
 Holden v. Hartsink \ 1 703 
 
 Soldur v. Coates .- i 648 
 
 Holding V. Plgott: :;. 11 791 
 
Ixviii 
 
 TABtE O? CASffiS CITES. 
 
 HoWsworth T. Bsrtmonth (Major) il 993 
 
 IIoll T. Griffin i 46» 
 
 Holland v. Uopkine i EOl 
 
 V. Reeves i 413, ii BOfi 
 
 Holiiday v. Atkinson 1 844 
 
 Hollisv. Goldfinch 1 766 
 
 HoUoway V. Rakes 1304. DM 
 
 Holman v. Burrow 1 619 
 
 Holme V. Green 1 BOS 
 
 Holmes V. Unstance ii 718, 781 
 
 Iloltv. Miers 11272,301, BS7 
 
 T. Squire i 623 
 
 Honey wood V. Peacock ii 49a 
 
 Hood v. Reeve 1 517 
 
 Hopcroft V. Keys i 468 
 
 Hope V. Atkins 11676, 677 
 
 Hopewell v. He Pinna i 640 
 
 Hopkins V. Neal 1 41 
 
 Horford V. Wilson ii 1012 
 
 Hurue V. Bentinck i 163, 164 
 
 v. M'Kenzie iBs5, ii ftiS 
 
 V. Smith ...^ ii 829 
 
 Tooke's Case— (See R. v. Tooke). 
 
 Horneyerv Lnshington il 176 
 
 Hiirsefall v. Testar i Siil 
 
 Hoskin v. Cooke i 626 
 
 Houldltch v. ( lauty i 147 
 
 V. Donegal (MarauesB) ii 182, 194 
 
 Honlston v. Smith or Smyth 1182, ii 399 
 
 Hoanafleldv. Dniry i63.3, ii 400 
 
 Houseman v. Roberts ii 5'27 
 
 Jlonstman v. Thornton i (Hi 
 
 HivU V. Stephenson 11 492 
 
 How V. Hall 1680. ii 539 
 
 H J .vard de Walden, Peerage Case 1 260 
 
 V. Canfleld 11 917 
 
 V. Duncan i 622 
 
 V. Shipey i 129 
 
 V. Smith i 423 
 
 V. Tremaine ii 213 
 
 V. Wiliams ii 627 
 
 Howell V. Lock i 99 
 
 V. Richards 1 861 
 
 V. Thomas 1 8,'!4 
 
 V. Wilkins 1 622 
 
 Hoylev. Cornwallis (Lord) i 626 
 
 H.ibbard V Johnstone Ii 285 
 
 J I iidsim V. Jones 1 793 
 
 H let V. Le Mesurier 11 2S1 
 
 Highes'sCaee 1 571 
 
 Hughes V. Biddnlph 1 146 
 
 v.Budd 11627, B2K 
 
 V. Cornelius ii 171 
 
 V. Parker 1 837, 845 
 
 V. Hogers ii 618, 994 
 
 Hnlke v. Pickering ■ i 703 
 
 Hull V. Vaiighan 1467 
 
 Hiilton V. Bolton 1 787 
 
 Hnme V. Rundall 1 93 
 
 Humphrey V. Knight ii 269 
 
 Humphreys V. Boyce 179,518. 627 
 
 V. Budd 1 626 
 
 Hungate v. Gascoyne 1 263 
 
 Hunt V. Andrews 11289 
 
 V. Hort 11638, 643 
 
 v, Massey 1644 
 
 Hunter V. Deloralne (Lord) i 620 
 
 V. King i 60 
 
 V. Neek 1 622 
 
 Huntingdon Peerage Case 1 256, 267, 270, il 266 
 
 Huntley Peerage Case 1 256, ii 278 
 
 Hard V. Foster 1471 
 
 V. Marlng !.,..! 167 
 
 V. Martin '. . i i 705 
 
 Hurst V. Watkins 1 107 
 
 Hutchins v. Bernard ii 856 
 
 Hutcaiusoii's Case il 181 
 
 v. Dowker 11710, 789 
 
 V. Piper 1 845 
 
 Hntton, In re i 640 
 
 V. Warren il 790 
 
 Huiham V. Smith 11165.10(1 
 
 Huxley V. Berg 1 B4 
 
 Hyckman v. Sholbolt 1 460 
 
 Uj'do V. Johnson 1 618 
 
 I. 
 
 I'jbett V. Leaver; 1799 
 
 I^sulden V. May 11 804 
 
 lldurton v. Ilderton U 91 
 
 lUlngworth V. Leigh 1888,11208, 883 
 
 Imperial Gas Co. v. Clarke. .it S14 
 
 IngUs V. Spence 1434, 436 
 
 Ingram v. Dade ..;;;....; 1 104 
 
 V. Lawson;i.i 1 794 
 
 v. Lea ..:;.. i '. 1 579, il 578, 679 
 
 Inn ell V. Newman i486 
 
 Ireland V. Powell 1219, 233 
 
 Irish Society v. Derry (Bishop) 11 265. 1007 
 
 Irnham (Lord) v. Child ii 644 
 
 Irving v. Greenwood i 7H0 
 
 v.Motley. 1607 
 
 Isack V. Clarke i 674 
 
 Isquierdo v. Forbes il 181 
 
 Israel v. Benjamin i 791. il 379 
 
 Ivatv. Finch 1304,311, 314, 630 
 
 Ives' Case ii 3, 300 
 
 Iveyv. Young 1882, 8o7 
 
 J. 
 
 Jackson v. Allaway i 841 
 
 V.Allen 11631,632 
 
 v. Benson Ii 957 
 
 ' v.Bull i 38 
 
 V. Carrington 1 886 
 
 V. Cater 11616 
 
 V. Fairbank 1 501 
 
 V. Galloway i 73 
 
 V. Thompson il 400 
 
 Jacob V. Hungate 1820, ii 829 
 
 V. Lee ii 526 
 
 V. Lindsay 1 411, 590, 11 925, 926, 929 
 
 Jacobs V. Humphrey 1 622 
 
 V. Layburn 1 99, 102 
 
 v.Tarleton ii 913 
 
 Jaggers V. ISinnings 1600 
 
 James, Ex parte ^ 1 8:J 
 
 V. Hatfield 1 4). 485 
 
 V. Williams 11 7(iO 
 
 flameson V. Earner 1172 
 
 Janson V. Stuart 1767 
 
 V. Wilson 11 211 
 
 Jardine v. Sheridan i 426 
 
 Jarrett v. Leonard i 443 
 
 Jayer v. Garnet i 203 
 
 Jeans v. Wheedon 1 586, 11 2.32. 237 
 
 Jee V. Hockley 11 270 
 
 Jefferies v. ^ atta i 466 
 
 Jeffery v. Walton ii 679 
 
 Jelfv. Oriel 1 875 
 
 Jelfs v. Ballard 1 821 
 
 Jenkins v. Biddnlph i 680 
 
 V. Harvey i 6v9 
 
 V. Phillips 1879, 886 
 
 Jenklnson V. Pepys ; ii 678 
 
 Jenner V. Clegg 1444 
 
 Jenys v. FawTer „ i 468 
 
 ■lervison v. Dyson 1X00, 755, ii 293 
 
 Jervoiso v. Northumberland (Duke) il 93 
 
 Jessel v. Millinghen ;...li 824, 829 
 
 Jesus College V. Gibbs 11653 
 
 Jewison V. Dyer 11273 
 
 John's Case— ^See R. v. John) 1 95 
 
 V. Cnrne SSB 
 
 Johnson v. Durant 1 106, ii 103 
 
 V. Gilson i 413 
 
 V.Graham l 70 
 
 v. LawBon. 1248, £68, 270 
 
 V. LewelUu il 489 
 
 V. Mason i 69, 11 468 
 
 V. Ward 1 449, ii 2.S9 
 
 Johnston v. Parker 1 251, 255 
 
 Jolley V. Taylor 1 680, ii 640 
 
 Jolley V. Young ii 710 
 
 Jones V. Bow ii 90, 92 
 
 V. Brewer 11499, 851 
 
 V.Brooke 1123 
 
 V. Carrington 1810.527 
 
 V. Clayton l 827 
 
 V. Cowley i 881 
 
 V. Dnnthorpo ii Sl9 
 
 V. Kdwards il 626 
 
 V. Herbert 1 485 
 
 V. Jones 1627,1160) 
 
 V. Littledale li oal 
 
 V.Mars 1846 
 
 V. Mason ii 492 
 
 V. Morrell 1 SO, 446 
 
 V. Newman n 773, 780 
 
 V. Palmer k gjii 
 
 V.Perry i jso 
 
 v.Pritchard i 74 
 
TABMi OF CASES CITED. 
 
 Ixix 
 
 Jones V. Radford 1468 
 
 T. Randall il 275,367, 379 
 
 V. Stevens 1761,11 28i) 
 
 V.Stroud 1885 
 
 V. Tarleton 1696, 11549, 558 
 
 V. Tucker il 737 
 
 V. Turbervillo 1 492 
 
 V. Tumour 1 4H3 
 
 V. Waller 1338, 11 439 
 
 V. While 11 61 
 
 V.Williams 1766 
 
 Jordaine v. Laehbrook 1 117, 128 
 
 Jordan v. Lewis 11 306 
 
 Jory V. Orchard 11 544 
 
 iK. 
 
 Kahl V. Janson 1 614 
 
 Kainv. Old 11688 
 
 Kaines v. Knightley 11 664 
 
 Kay V. Brookman 11 498, 605 
 
 Keable V. Payne ■ il 60 
 
 Keane v. James il 671 
 
 Kearney v. King 1 625, 626 
 
 Keeling V. Ball 11657 
 
 Keene v. Oearden 1 673 
 
 Kell V. Nainby 1 466 
 
 Kellington (vicar) v. Trin. Col 11414 
 
 Kelly V. Powlet 11768 
 
 V. Small 1617 
 
 Kemble v. Farren 1 496, ii 790 
 
 Kemp V.King 1837. ii 816 
 
 Kemplund V. Macauley 1489, 621 
 
 Kempton d. Boyfleld v. Cross 1 624, 11 449. 452 
 
 Kenn's Case il 90 
 
 Kennedy V Casilis (Earl) ii 181 
 
 Kensington V. Inglis 11654,678.917 
 
 Kent V Burgess 1 631 
 
 V. Lowen 1 631 
 
 Kenworthy v. Schofleld 11 743 
 
 Kenyon v. Wakes 1 800 
 
 Kerv. Shedden ii 28S 
 
 Key v. Shaw , 1 172 
 
 Kidney v. Uockbufii 1 250. 256 
 
 KiUmorrey Peerage Case 1 258, ii 447 
 
 Kilmarnock (Lord), Case of 1 889 
 
 Kilner v. Bailey 1 809, ii 26 
 
 Kinder v. Williams il 822 
 
 Kindersley v. Chase ii 173 
 
 Kine v. Beaumont ii 644 
 
 Kingv. Baker 1 288 
 
 V. Carlisle 11 2 
 
 v. Francis 1 760 
 
 V. inhab. of All Saints i 84 
 
 V. Tnhab. of Bathwick 1 85 
 
 V. Inhab of Cliviger 1 84 
 
 V. King il 325 
 
 V. Norman 1793,794, il 12 
 
 V. Keginam 11 356, 362 
 
 V. Waring 1 761 
 
 Kingham v. Robins 1 787 
 
 Klngsmill V. Bnll ,..i 621 
 
 Kingston (Dutchess), Case of 1 136, Ii .3i'47, 92, 
 
 167, 303, 926 
 
 (Mayor') v. Horner 1 660 
 
 Kingworthv. Leigh ii 15 
 
 Kinnernley V. Orpe 1111,278,350 
 
 Kirtland v. Pounsett i 859 
 
 Kirwan v. Cnckbum ii 276 
 
 Kitchen v. Manwaring 1 15 
 
 Knapp V. Haskall ii 913 
 
 Knight V. Clements 1 607, 11483 
 
 V. Danler ii .3.57 
 
 V. M'Douall i 793, 879 
 
 V. MartinF 11489,624 
 
 V. Waterford (Marq ). . . 1 339, 344, 11 486, 525, 
 
 651 
 
 V. Wonre i 860 
 
 Knobellv. Fuller 1 ^](i^• 
 
 Knox V. Walley 1 465 
 
 Koster v. Reed 1 673. 642 
 
 Kuth V. Weston 1 644 
 
 Kynaston v. East India Co 11 315 
 
 Xj. 
 
 Lacon v. Higgins ii 428 
 
 V. Hooper 11 288 
 
 Laing v. Barclay 1 154 
 
 Lainson v. Tremore 1 472 
 
 Lake v. Argyle (Duke) 1 467 
 
 V.King 1 620 
 
 V. Skinner i 310 
 
 Lamb v. Mlcklethwai te 1 800, 801 
 
 Lambe's Case— (See R. v. Lambe). 
 
 Lambert V. Hall 1 816 
 
 V. Oakes i 468 
 
 V. Pack 1 468 
 
 Lamblrthv. Roff i 807 
 
 Lameyv. Bishop 1 874 
 
 Lampon V. Corke 1471,474,11751, 761 
 
 Lancum v. Lovell 1 282. 284 
 
 Lane' B Case 1 622. 623 
 
 V. Mullins i 785 
 
 Langv. Gale i 625 
 
 Langdon v. Hulls Ii 644 
 
 Langhorn v. Allnutt i 514 
 
 Langley v. Fisher 1 77, 91 
 
 v. Oxford (Earl) 1506.624 
 
 Latham v. Rniley 1 84(1 
 
 Latkow v. Eamer 11 267 
 
 Lautourv. Teesdale ii 447 
 
 Lavie v, Phillips 1 621 
 
 Lawless v. Queal i 424 
 
 Lawley (Lady), Case of 1 95 
 
 Lawrence v. Clark ii 627 
 
 V. Dixon ii 281 
 
 v. Hodgson ii 413 
 
 V.Hooker ii 324 
 
 V. Tiatcher i 170. 515 
 
 Lawson V. Mangles 173 
 
 V Sherwood i 639. ii 6*16 
 
 Laybourne v. Crisp 1 238, ii 60, 380. 3 3 
 
 Layer's Case i 106, 164, 11 696. 6l5 
 
 Leav. Wheatley 1 ]S6 
 
 Leach v. Buchanan 1 468 
 
 V.Simpson ii 228. 237 
 
 Leader v. Barry 1 274, ii 281, 448 
 
 Leake v. Westmeath (.Marq.l ii 399 
 
 Leame v. Bray .' i 621 
 
 Leathes v. Newel orNewit 1233. 281 
 
 Le Caux v. Eden 11 99,174 
 
 Xechmere v. Fletcher i 791 
 
 Ledbetter v. Salt 1 434, 464 
 
 Lee'sCase i 107 
 
 V. Barlow ii .328 
 
 V. Birrel 1 139, 164, 167 
 
 V. Gansell 11 361 
 
 V. Huaon 1772 
 
 V. Lee i 370 
 
 V. Meecock ii 2--'3, 365 
 
 V. Paine ii 717, 768 
 
 Leeds V. Cook 1760, 11643,817 
 
 Leery V. Goodson 1 845 
 
 Lees V. Marston 1205 
 
 Leeson v. Holt ii 276 
 
 Lefevre V, Lloyd 11681 
 
 Le.ggatt V. Tollervey ii .106 
 
 Leggett V. Cooper 1791 
 
 LegB V. Legh 1 484 
 
 Leglise v. Champante 1 852, 863 
 
 Le Gros V. Levemore 1 .333 
 
 Leicester (Lord) v. Walter 1 761 
 
 Leigh Peerage Case 1 255, 256,' 266, 267, 275 
 
 Le-ghton v. Leighton ii ,363 
 
 Lemon v. Dean ii 504 
 
 Leonard V Franklin 1757, ii 293 
 
 Lepping v. Kedgewin, ii .32 
 
 Leslie V. De la Terre ii 664 
 
 Lethbridge v Winter 1 650 
 
 Levy V. Pope 1 157, 480 
 
 V. Pyne i 695 
 
 V.Smith ii 887 
 
 Lewis V. Baker ii 316 
 
 V. Hartley ii 537 
 
 V.Marshall 11788,789 
 
 V. Parker i 820 
 
 v.Rogers 1 188 
 
 V. Sapio 11696 
 
 Liebman v. Pooley 1 668, 672, ii 672 
 
 Ligbtfoot V. Cameron ii 820 
 
 Like V. Howe 1 435, 464 
 
 Lincoln (Bishop) V. Ellis 11 15 
 
 Lindenau V Desborough 1 782 
 
 Lingard V. Messiter 1 "JO-I 
 
 Lipscombe v. Holmes i 436, im. 792 
 
 Lisle Peerage Case 1 256, 258,' 263, 266, 11 265 
 
 Lister, q. t. v. Priestley ; 1 434 
 
 Littler V. Holland i 845 
 
 Livett V. Wilson 1 fi73 
 
 Lloyd V. Preshfleld 1 137, ii 917, 925 
 
 V. Key ii 855 
 
 V. Moatyn 1147,11527 
 
 V. PasBingham 11 281 
 
1X3 
 
 TABLE OF CASES CITED. 
 
 Lloyd V. Sandilacds i 703 
 
 V. Wait i 342 
 
 V. Welkey i 793 
 
 V. Willan 1617 
 
 V. Woodall ii 377, 304 
 
 Lobh V. Stanley ii 745 
 
 Locke V. Norbonne i 527, Ii 13, 17 
 
 Lockett V. Nicklin 11 680 
 
 Logan V. AUder ii 510 
 
 LollyeCase ii 180 
 
 London fOity) V. Olerke 1219,237 
 
 (Corporation) v. Long 1 487, ii 800 
 
 (Mayor, &c.) v. I^ynn (Mayor) 11 295 
 
 V. Long 11 800 
 
 and Brighton Eailway Company v. 
 
 Fairclough 1 643 
 
 Lonegan v. Roy. Bxch. Ass. Co 11 829 
 
 Long V. Bailie 1696 
 
 V. Champion i 413 
 
 V. Greville 1 791 
 
 Lopez V. Andrews 1 659 
 
 V. tie Tastet, 1 850, 857 
 
 LotMan v. Henderson U 171, 173 
 
 Lovat (Lord), Case of 1 99 
 
 Peerage Case i 263, 389 
 
 Loveden V. Loveden i 637 
 
 Loverldge v. Botham 1 478 
 
 Lowe v.TIuntingtower (Lord) 11 643, 735 
 
 V. Jolllffe 1 129, 11 982 
 
 y. Manners 11 735 
 
 Lowry V. Doubleday 11828 
 
 'Lowther V. Eadner (Lord) ji 104 
 
 V. Eaw 1764 
 
 Lncas v. De la Court 1 496 
 
 V. Eades 1 103 
 
 T. Godwin. 1508, 616 
 
 V. Novosilieskl 1 675 
 
 Ludlow (Mayors v. Charlton 1 414 
 
 Ludlow V. Chariton 1 583, 640, 11 379, 380, 521 
 
 Lumley v. Quaree 11 103 
 
 Lundie v. Robertson 1 451 
 
 Lunnis v. Rose 1 104 
 
 Lutterpl V. Reynell ^ 11973 
 
 Lnttrel V. Lea 11 343 
 
 Lygon V. Strutt 11 441 
 
 Lynch v. Clarke 1 410, ii 443 
 
 Lynn (Mayor) v. Denton ii 315 
 
 Lyons V. De Pass 1 631 
 
 Lygney v. Selby 11 688 
 
 m:. 
 
 Maberley v. Robins 1 632 
 
 M' Alpine v. Mangnall ii 1007 
 
 "M'Carthy v. De Calx ii 180 
 
 T. Smith 1 801, 809 
 
 Macartney v. Graham 1 696 
 
 M'Combie v. Anton 11 887 
 
 M'Craw v. Gentry ii 503 
 
 M'Culioch V. Dawes 1 503 
 
 M'Daniel v. Hughes 11 166 
 
 Macdougal v. Piirrler 1 665, 704 
 
 V. Toung 11 367 
 
 Macferson v. Thoytes 1 468, 11 610 
 
 M'Gahey v. Alston i 44, 626, 644, 11 666 
 
 M'George V. Egan., i 519 
 
 M'Guire's Case i 571 
 
 M'lver V. Humble 11 286 
 
 Mackalley's Case i 831 
 
 Mackay v. Wood i 468 
 
 Mackenzie v. Prazer ii 481 
 
 V. Yeo il46.158 
 
 Mackintosh v. Marshall 1 646. ii 389 
 
 M'Leod V. Wakley i 773 
 
 M'Namara v. Gibbs i 172, 644 
 
 M'Neil V. London (Sheriffs) 11 364 
 
 Mace V. Cadell 1 466 
 
 Machell v. Ellis 1 625 
 
 MaddlBon v. Nuttall ....^., i 387, 528, ii 293, 448a 
 
 V. Shore 11 819 
 
 Maester v. Abraham 1 514 
 
 Magee v. Atkinson 11 681. 800 
 
 Magney v. Fisher 1' 466 
 
 y. Knight i 578, ii 535 
 
 Magrath v. Hardy 11 43, 166 
 
 Mamgay y. Gahan ii 101 
 
 Mainwarlng v. Giles i 652 
 
 Mainworthy V. Pago 1 791 
 
 Maitland y. Goldney i 837 
 
 Malcolm v Fullarton ; 1 798 
 
 Male y. Roberts 1 823 
 
 Maler v. Eyloe 1 204 
 
 Maley v. Shepherd i 466 
 
 Malkin, Ex parte 1 76 
 
 Maloney V. Eaitley ii 937 
 
 Maltby y. Christie 1 434 
 
 Malton y. Nesbit i 784 
 
 Man y. Rickets 11 481 
 
 Manbyy. Curtis 1304, 349,11441,481 
 
 Manchester Mills, Case of i 237, 11 60 
 
 Manderston V. Robertson 1 602 
 
 Manifold y. Pennington '. i 860 
 
 Manleyy.Shaw i 15 
 
 Mann y. Lang i 478, 732 
 
 y. Owen....... '.\ ii 102 
 
 Manners y. Fostan ......: ; : ii 469 
 
 Manning y. Clement 1 313 
 
 y. Cox i 485 
 
 y. Eastern C6unties Eailway Com- 
 pany . . ./. 1 413 
 
 y. Lechmere 1 306 
 
 uant y. Mainwaring i 47 
 
 Marchmont Peerage Case 1 268, 11 447 
 
 Marks y. Lahee i 305, 341 
 
 Marmyon Peerage Case i 257 
 
 Marriage y. Lawrence 1 287, 336, 11 296 
 
 Marriott y, Marriott ji 76 
 
 Marsh y. CoUnett 11 387, 448, 4g4 
 
 y. Meager i 206, 489 
 
 y. Smith i 49 
 
 Marshall y. Cliff i 517, 524 
 
 y. Griffin j 735 
 
 y. Lamb i 694 
 
 Lynn. .' ii 680 
 
 y. Parker ii 174 
 
 Marston y. Downes ....... 1 146, 166,'ii 662, 817, 935 
 
 Marten y. Barrett i 886 
 
 Martin y. Bell 11 523 
 
 y. Gilham i 826 
 
 y. Nicolls ii 182 
 
 Martin y. Thornton i 166 
 
 Mashy. Densbam i ggl 
 
 Mason y. Mason i 641 
 
 Massey V. Johnson ii 104_ 307 
 
 Masterman V. Judson i §74 
 
 Masters y. Barretts i §20 
 
 V. Masters... ii 716 
 
 y.PoUie i 6-18 
 
 Matte y. Hawkins i 648 
 
 Matthews y. Fort ii 265 
 
 Maudsley'a Case i 540 
 
 Maugham y. Hubbard 1 585, 690, ii 917 
 
 Maunsell y. Ainsworth ii 919 
 
 Mawson y Hartsink "a 955 
 
 Mayy. Gwynne ii 317 
 
 T.May i 251, 589, 11 283 
 
 y. Taylor i 456 
 
 Mayor y. Johnson i 595 
 
 Mead's Case ., i 95 
 
 y. Daubigny i 772 
 
 V. Robineon 1 139, ii 289, 444 
 
 Meagoe y. Simmons ji 971 
 
 Mease y. Mease 11651 677 
 
 Meath (Bp.) y. Winchester, (Marq.). .i^6,Ui 480,' 526, 
 
 \ . Belfield~(Lord) ii 292 
 
 Mee y. Eeid ." ."."'. i "13 
 
 Meekins y. Smith "ii g20 
 
 Meers y. Stourton (Lord) i 15 
 
 Melen y. Andrews 1 171, 445, 446," 541 564 
 
 Melyer y. Humble j 51 
 
 Melyille (Lord), Case of i 619, 639, ii 444 878 
 
 Mendham y. Thompson i 351 
 
 Mercer y. Whall 1 8]o 
 
 „ ^..T'-Wise i435;"464, 470 
 
 Meredith y. Footmer i 93 519 
 
 Meres y. AnsoU '. """ ji 677 
 
 Merle y. More '.".'.'.V.V..i"i34, 155 
 
 Merrick y. Wakley ii 290 
 
 Meyer y. Sefton ".".".".".■.'. '.".'.iKl, 696 
 
 Meyrlck y. Woods li 527 
 
 Michel V. Eabbetts 1 e" ii 441 
 
 Middlesex (Sheriff), Cn»o of ' ' 1 6''0 
 
 Mlddletony. Brewer i 791 
 
 V. Janyerin .'i fisi," ii 428 
 
 V. Melton 1 301,307, 346, 626, 575 
 
 y. Sandford ii 607 
 
 Milbauke y. Grant i 594 
 
 Mildrone's Case i 13 
 
 Miles y. Shewarfl .'. j 851 
 
 Millar y. Helnrloh " "ii 428 
 
 Miller's Case— (See E. y. Miller). 
 
 V.Foster ii 448 
 
TABLE OF CASES CITED. 
 
 Ixxi 
 
 Miller V. Miller ...' ii 498 
 
 V. TraverB U 638, til, 750, 775, 780 
 
 V. Warre ii lou 
 
 V. Williams i 791 
 
 Mills V. Barber... 1813,820 
 
 V. Collett ii 103 
 
 T. Lyne i 785 
 
 T. Oddy 1 135, 166, ii 553, 817 
 
 Millwood V. Walter i 807 
 
 Milman V. Tucker .-. 11 960 
 
 Milson V. May . . ... 1833 
 
 Milward T. Forbes i 432 
 
 V. Hlbbert i 645 
 
 v. Temple i 523, 11 605 
 
 Mmshnll V. Lloyd 11 656, 669 
 
 Mitcboll V. Jenkins i 833 
 
 T. Johnson ii 507 
 
 Mitchell V. Tarbott. ... .1853 
 
 Moilliet V. Bbwell. .1 883 
 
 MoisBsv. Thornton 1 624, ii 303, 454 
 
 Molineanx V. Molineaux ii 743 
 
 Moiling V. Poland 1622 
 
 Molouy V. Gibbons 11205 
 
 Moltoa V. Harris 1680,11695 
 
 Moncrieff v. Bead , i 889 
 
 Mondelv. Steel-...' 1127,866 
 
 Monke T. :^otler 1815 
 
 MonktonT. Attorney General... 1 246, J49, 250, 254, 
 „ „ 260, 263, 269, 271, 276, 280, 281 
 
 Monroe V. Twisleton . 178, 89 
 
 Montagae V. Dndman 11318 
 
 Montgomery V. Kichardson i 794 
 
 Moody V. King.... 1 61 
 
 V. Thurston '....■ 11101,308 
 
 Moone v. Witney IJnion 11 788 
 
 Moons T. De Bernales .. . 11 93 
 
 Moor V. Adams 11 828 
 
 Moore v. Booth ' " ' . . 11 821, 822 
 
 T. Butllu ii 26 
 
 V. Dearden 1 336 
 
 T. Ostler 1761 
 
 T. Strong.... , ....1186 
 
 V. TyrreS 1142, 144, 159 
 
 Maravia V. Sloper . 1633 
 
 Morel V. Harborough (Lord) i 508, 11 103 
 
 Morewood v. Wood i 229, 240, 243, 244, ii 618 
 
 Morgan v. Ambrose I 467 
 
 (or Morgans) v. Bridges <or Brydges) 
 
 1466, il 899 
 
 V. Edwards 1 861 
 
 V.Harris 1 809 
 
 V. Morgan 11 498, 7 r5 
 
 V. SmlQi 1 787 
 
 T. Thome i 485 
 
 V. Tvler : 1 338 
 
 Morley (Lord), Case of 11 230 
 
 Morris V. Davles i 268, 630 
 
 V. Haoser 11 526 
 
 V. Jones 1 800 
 
 V. Lotan.. i 799 
 
 r.Mlller...., 1452,589,631,11 281 
 
 Morrison v. Kelly 11 307 
 
 V. Lennard 1 10 
 
 Morrowv. Sannders. 11328, 328 
 
 Morsev.Eoyal . .. 1492,493 
 
 Moraley y. Keynoldson 11 633 
 
 Mortimer v. MCallan 1 508, 595, Ii 287, 444 
 
 Moseley v. Davles 1 219, 233, 240, 242, 280 
 
 V. Hanford 11 673 
 
 Moses T. Macfarlane . 11135 
 
 Moseley V. Massey 11 643, 735 
 
 Moss V.Smith 1801, 807 
 
 Mostyuv Fabrlgas 1623, ul03, 851 
 
 MottT.Mills 1436 
 
 Mould T. Williams " . 11 104 
 
 Moulin V. Oallson !!.^.!..i!.......!...l 754 
 
 Mounson T. Bourn ...,,....'..*..*.'.",'.. '.'.".".".".'.'.'.1 622 
 Monntford V. Harper......!!.".!!".."".. ...'.. ".'l 703 
 
 Mountstephen v. Brooke 1 485, 846 
 
 Moyser v. Peacock 11 219 
 
 Mnller v. Moss ." ■■■■"' j J73 
 
 Mnllett V. Hunt . ii 833 
 
 Molvany v. Dillon 11 214, 219 
 
 Mnnn v. Baker 11 276 
 
 V. Godbold 11644, 570 
 
 Munro v. De Chemant 1 465 
 
 T. Vandam 1 620 
 
 Mure V. Kaye I 623 
 
 Mnrley •». M'Dermot 11 738 
 
 Murray v. Thomhill 11 318 
 
 Musgravev. Emerson 1 340 
 
 MytinY. Joliffe ,„., 1 144 
 
 Mytton v. Harris 11 293 
 
 N". 
 
 Neal d. Athol (Duke) v, WUdiiig 1 256, 274 
 
 NealeT. Pry 11 299 
 
 V. Parkin i 444 
 
 V. Swlnd 11326, 331 
 
 Needhamv. Fraser '. 1 793 
 
 T. Smith i 99 
 
 Nellan y.Hanny 1 65 
 
 Nelson T. Whittal „ il 507 
 
 (Earl) T. Beaufort (Lord) U 428 
 
 NetteryiUe Peerage Case 1 269 
 
 Newburgh v. Newburgh 1 283, 11 414, 643 
 
 Newbyv. Seed 1 642 
 
 Newcastle (Duke) v. Broxtowe (Hundred), 1 220, 
 
 242, 247, 648 
 
 Newell V. Slmpkln 11 317 
 
 Newhall v. Holt i 422 
 
 Newham v. Eaithby 11 282 
 
 Newland t. Horseman 11 207 
 
 Newman T. Stretch i 204, 422 
 
 Newsam V. Carr, 1 761 
 
 Newsome V. Coles 1466, 11 276 
 
 Newton v. Boodle 11 1013 
 
 T. Constable 11 822 
 
 V. Harland Ii 827, 829 
 
 NichoU V. Wmiams 1 800 
 
 Nlcholls TT. Dowdlng 1495, il 890 
 
 V. Downes 1 451, 471 
 
 V. Osborne 11 768. 
 
 V. Parker 1 219,242, 246 
 
 Nicholson V. Simpson 1 793 
 
 V.Smith 1 431 
 
 Nightlngal V. Devlsme i ii 382 
 
 Nixon Y. Mayoh 1 154 
 
 Noble V. Kennoway 1 645, 753, 755, 11 788 
 
 Nodln T. Murray 1 581 
 
 Noellv. Wels 1624,11 75 
 
 Norden V. Williamson 1 57 
 
 Norman v. Wescombe i 792 
 
 Norrls V. Norris 1 640 
 
 Northv.Mlles 1211,521,522 
 
 Northam v. Latouche 11 400 
 
 Norton V. Melbourne ii833, 855 
 
 Novelllv. Boss! 11 193 
 
 Nugent (Lord) v. Harecourt 1 620 
 
 O. 
 
 Oakley T. Davis 1 792 
 
 Gates (Tltns), Case of 1 119 
 
 Obbard v. Betham 1644 
 
 Oblchlnl T. Bllgh 11 174, 193 
 
 O'Coigley and O'Conner, Case of— (See E. v. 
 O'Coigley) 
 
 O'Connor v. Cook 11 270 
 
 V. Majoribanks i 78, 93 
 
 Oddls V. Domville i 266 
 
 Oddjrv, Bovil 11 176 
 
 Odwin V. Forbes il 205 
 
 Ogllvle V. Foljambe 11 678 
 
 Ogle V. Atkinson '. ..'. 1 469 
 
 Ogle V. Noccllffe 1 622 
 
 Olive V. GulnorGwyn 11346, 582 
 
 Oliver V. Bartlett 1 173 
 
 V. Cooke ii 743, 744 
 
 Omlchund or Omychund v. Barker 1 15, 11 303 
 
 Ongley v. Chambers 11 739 
 
 Orrv. Brown , il 205 
 
 •V. Morlce U 488 
 
 Oaborn V. Thompson 1812, 816 
 
 v.Wlse 11714, 737 
 
 Osborne Ex parte i 76 
 
 Osgathorpe v. Disewbrth 11 168 
 
 Oswald V. Leigh 1 703 
 
 Oughman v. Parish 11 861 
 
 Ougler V. Jennings 11 788 
 
 Outram v. Morewood.. ..1 336, 337, 338, 364, 527, 
 
 11 10, 13, 27, 35, 42 
 
 Ovenston V. Wilson ii 601 
 
 Owen v. Warburton i 168 
 
 Oxlade v. Perchard 1 74 
 
 t 
 F. 
 
 Paddock v. Forrester 1 173 430 
 
 Padley v. Wellesley , i 82 
 
 Pagev. Carew.... ii 833 
 
 V. Faucet 1625,11 294 
 
 V. Hatcbett 1629 
 
 V. Leapingwell !".". .".".'.'.!'. ".'.'.'.".■.!'u 735 
 
Ixxii 
 
 TABLE OP CASES CITED. 
 
 Pago V. Mftnn 11 607 
 
 V.Page 11769 
 
 Palethorp v. Furnish 1 93, 6l8 
 
 Palmer v. Aylesbury (Lord; li 385 
 
 V. Ekins 1467 
 
 V. Sells 1 518 
 
 Palmerston (Lord), Case of 1 401 
 
 Pardoev. I'rice 11442, 55i) 
 
 Parfitt V. Thompson 1 792 
 
 Pargeterv. Harris 1 473 
 
 Parter v. Barker 1 202 
 
 V. Hoskins 11 498 
 
 V. M-William li 887 
 
 V. Manning 1 467 
 
 V. Mltoheir 1 69 
 
 T. Morrell 1492, 498 
 
 V, Palmer 1 845, 861 
 
 V. Potts ; 1 629 
 
 V. Yates 1 148 
 
 Parkhurst V. Lowten 11 029 
 
 Parkin v. Moon 11 888, 910 
 
 Parkins v. Cobhett ' 11 667 
 
 V. Hawkshaw 1135, 523 
 
 Parkinson v. Uollier li, 79S 
 
 Parkev. Edge 1 879 
 
 Parry v. Collis il 362 
 
 V. Fairhurst 1 879, 883 
 
 V. House 1 467 
 
 V.May 11624 
 
 Parsons v. Bellamy 1 337 
 
 V. Wilson 1 807 
 
 Parteriche v. Powlet 11 638, 665, 676 
 
 Parton v. Williams li 103 
 
 Partridge V. Coates li 523 
 
 Pasmore V. Bousfleld 1594. 799 
 
 Paterson v. tiandasequl ii (i82 
 
 Patram's Case 1 10!) 
 
 Patrick, Dr., Case of 11 102 
 
 Patterson V. Becher 1451, 794 
 
 V. Black 1 642 
 
 Paul V. Tliraes ii 8.56 
 
 V. Meek il 644 
 
 Paxton V. Douglass ii 930, 933 
 
 V. Pcpliam ii 682 
 
 Payne v. Eoge s i 480, 484 
 
 Peaceable d. Uncle v. "Watson 1 311, 312, 334, 657 
 
 Peacockv. Bell 1 623, 623 
 
 V. Harris 1 465 
 
 V. Monk ii 6.55 
 
 Pearce V. Davis i 703 
 
 v. Hooper il 486. 487 
 
 V. Morrlce ii 644 
 
 v. Ormsby i 772 
 
 Pearson v. Fletcher 1 164 
 
 V. Isles 11 ,S29, 833 
 
 V. Lemaitre 1 6.S2, 772 
 
 Pease v. Hurst 1 601 
 
 Peckham v. Potter i 5.31 
 
 Padlerv. Paige li 499 
 
 Pedley v. Wellesley 1 90, 80 
 
 Pellati V. Ferrara i 420 
 
 Pendrell v. Pendrell 1 630 
 
 Penn v. Scholey 1 171, 188 
 
 Penncll v. Meyer 1 417, 420, 11 .381 
 
 Penny v. Porter i 845 
 
 Peppm V. Solomons •. 1 8.39 
 
 Perjhardv Hamilton i 626 
 
 Perham v. Rayual 1 601 
 
 Perigal v. Nicholson 1 337, 346 
 
 Perkin v. i.'utlers' (Warden of) Co i 675 
 
 Perry v. Gibson ii 896 
 
 v. Smith i 163 
 
 V. Watts i 888 
 
 Potchv.Lyon i 523 
 
 Petherick v. Turner i 492 
 
 Petov. Hague 1 608, 614 
 
 Petre (Lord) v. Blenooe ..11 802 
 
 Petrie'sCase 1 148 
 
 Pettman v. Bridger 1 662 
 
 Petty V. Anderson :.„, i 518 
 
 Peyton v. St. Thomas's Hospital, or London 
 
 (Mayor) 1 607 
 
 Pflel V. vanbatenberg 1 703 
 
 Philips <^ Bacon 1 862 
 
 V. Shaw i 8H2 
 
 Philipeon v. Chaco il 644 
 
 PMUlps V. Allan 11805 
 
 V. Buokinghom (Duke).'.'.'. .■.".■.".".",'.■.'.■.', 1 41 
 
 V. Bury 11 102 
 
 V. Clnggett I486 
 
 '•Cole i 301, 8»2, 838, 480, 681 
 
 Phillips V. Crawley il Bl 
 
 V. Batter 1188. 11 899 
 
 V. Hunter li 136, 166,170, 181,182 
 
 V. Wlmbum 1583,11246 
 
 Philps' Case 1 641 
 
 Philpotsv. Read 11 205 
 
 Phipps V. Parker 11 604 
 
 V. Sculthorpe 1 467 
 
 Phythianv. White 1 860 
 
 Pickard v. Sears ; 1 463, 465 
 
 Plckford V. Gntch 1 436 
 
 Pickering v. Ely i S55 
 
 V. Noj es 11 324, 328, 662 
 
 Picton (General) Case of— (See R. v. Picton). 
 
 Pierce v. Whale 1 4.36 
 
 Piercey's Case 1 268, il 299 
 
 Piercyv. ii 213 
 
 Pierson v. Hntchlnson 1 596, 697 
 
 Pike V. Badmering ii 9S2 
 
 or Pyke V. Crouch 1362,369,1115,217 
 
 Pilkington v. Cooke 1 652 
 
 Pimv. Curell 1237.2:19 
 
 Pinney v. Pluney ii 75 
 
 Pipe v. Steel i 47 
 
 Piperv. Chappel .• •.* •'^l 
 
 Pirle v. Anderson 11 285 
 
 v. Iron ii 856 
 
 Pltcherv. King 113-17,363, 81(1 
 
 v.Elnter ii 389 
 
 Pitman v. Maddox 1 352, 370 
 
 Pitt V. Chappelow 1468 
 
 V. Greeu 1861 
 
 V. Griffith 11498 
 
 V. Knight 11 343 
 
 Pittam V. Foster 1 603 
 
 Pltton V. Walter ii 265. 361, 36-J 
 
 Plaxton V. Dare i 219, 236, 282, 307, 311, 11 566 
 
 Plumer V. Brieco 1593 
 
 Plummer v. Woodburne 11 193 
 
 Plunkett v. C'obbett 1 165, 772 
 
 Poe. Inre 11162 
 
 Pollard V. Bell 11 173 
 
 V.Smith , i 837 
 
 Pomproy v. Baddeley 11 885 
 
 Pomfret (Lord) v. Smith 1 282 
 
 Pontifex v. Bignold 1 l>-33 
 
 Pool V. Court 1843 
 
 Poole V. Dicas 1 345, 332, 354, 356, 357, 361, 363 
 
 V Palmer i 505 
 
 V. Warren il 489. 632. 66S 
 
 Pooley V. Goodwin i 64;, ii 671 
 
 Pope V. Monk 1 43.3 
 
 V, Skinner i 828 
 
 PopishPlot. Trials for 1 213 
 
 Poplett V. James i 44, 66 
 
 Porter V. Cooper 11356, 398 
 
 Porthouae v. Parker 1468 
 
 Portmore (Lord) V. Goring ii S24, .326 
 
 V.Morris 11676 
 
 Potez V. Glossop i 644 
 
 Pott V. Todhunter 11655 
 
 Potter V. Brown ii 205 
 
 r-otts V. Durant ii 2!I2. 441 
 
 Powell V. Bradbury li 827 
 
 V. Edmvinds , , ii 678 
 
 V. Ford ii 696 
 
 V. Hodgetts 1 214. 217 
 
 v.Hord 1 76 
 
 V. HortOB 11 783 
 
 V. Laytou i 863 
 
 V. Milburn 1815 
 
 Pratt V. Dixon 11 186 
 
 Preston V. Carr 1626 
 
 V. Greenwood ii 7S8 
 
 V. Merceau ii 6H7, 677 
 
 Price's Case 1 109 
 
 Price V. Boultby ii 328, 332 
 
 V. Carter 11 461 
 
 V. Dewhurst 11 170, 182, 113 
 
 V. Fletcher 1 861 
 
 V. Green il 99;) 
 
 V. Harwood 1466 
 
 V. HolUs 1 517, 11 841 
 
 V. Llttlewood 1 229, il 290 
 
 V. Neale 1 468 
 
 V. Page Ii 780 
 
 V. Torrington (Lord) 1 852, .361. .370 
 
 Prideaux v. ColUer 1 188 
 
 Prince V. Blackburn 11 493. 499, 603 
 
 V. Sarao 1416,5.38.11 978 
 
 Pritchnrd t. Dr»p«r 1 492, BOS 
 
TABLE OF CASES CITED. 
 
 Ixxiii 
 
 Pritchard v. Fonlkes 1 168 
 
 T. Hitchcock u 13 
 
 T. Powell i 819 
 
 V. Symonds 11524 
 
 T. Walker i 435, 494 
 
 Pntt v. Fairolough 1 353, 645, 11 572, 673 
 
 Proctor V. Lainson 1488, li 261 
 
 PrOBser v Qwllllm i 530 
 
 Provls T. Eeed 11 975 
 
 Prudham v. Phillips li 48 
 
 Prudhome v. Eraser i 889 
 
 Pullen V. Seymour i 879 
 
 Pulley V. Hilton ii 445 
 
 Pnrcell V. Macnamara 1862, li 382 
 
 Pyke V. Crouch— (See Pike t. Crouch.) 
 
 Q. 
 
 Quarterman v. Cox 1 103 
 
 Queen's Case, i 415, 416, 575, 597, li 386, 910, 969, 973 
 Quelch'B Case— (See E. t. Quelch). 
 
 R. 
 
 Eadfordq. t. T. Kaoklntosh i 436 
 
 Eadnor (Earl) v. Eeeve 11 101 
 
 Eaggett v. Musgrove i 447 
 
 Ealeigh (Sir WJ Case of— (See E. v. Ealeigh). 
 
 Ealph V. Harvey i 466 
 
 Eamadgev. Eyan i 781 
 
 Eambertv. Cohen i 586 
 
 Eamsbottom v. Buckhurst Si 877 
 
 T. Tnnbridge i 576, 679, ii 578 
 
 Eamsden, In re .......'..... i 628 
 
 Eandall V. Gurney ii 820, 821 
 
 V. Lynch... i 791 
 
 Handle v. Blackburn 1 411, 420 
 
 Eandolph V. Gordon 11441, 602 
 
 Hands v. Thomas 1 105, 129 
 
 Eann v. Hughes 11 694 
 
 Eapp V. Latham i 496 
 
 Eatcllffe (Dr.) Case of 1186, 11 50 
 
 V. Bleasby 11324, 337 
 
 V. Chapman i 244 
 
 Haven v. Dunning i 52 
 
 EavenscroflTV. WiBe 1. 788 
 
 Eawson v. Haight« 1 203, 204 
 
 V. Walker 11 673 
 
 Eawstorne v. Gandell i 485 
 
 Eayner v. Hall i 478 
 
 Bead v. Dnnsmore i 881 
 
 V. Gamble 1580, ii 541 
 
 V. James 11 896 
 
 V. Passer 1 274, 589, 11 281 
 
 Eeading V. Menham ii 799 
 
 Eearden v. MInter 11 489 
 
 Eeay v. Eichardson ii 678 
 
 Bedford v. Birley i 207 
 
 Eeece v. Trye t 146 
 
 Eeed v. Deere 1 678 
 
 v. Jackson i 229, 239, 11 2, 55 
 
 V. Prosser 1 631 
 
 Eees v. Abbot i 862 
 
 V. Bowen 11 381 
 
 V. Mansell 11 484 
 
 v. 'Walters 11 443 
 
 Beeves v. Slater 1 466 
 
 Eeid V. Bettee i 675, 579 
 
 V.Coleman 11326,338 
 
 V. Dickons 1 791 
 
 V. Margison 11 364 
 
 Hellly V. Fitzgerald i 246 
 
 Eemmie v. Hall i 419 
 
 Bennie V. Eobinson 1 467 
 
 Eeusse v. Myers 11 385 
 
 Bew V. Pettet i 602 
 
 Bex or Eeg. v. Abergvi-elly, i 174, 218, 254, 287, ii 211 
 
 V, Abraham i 776 
 
 V. Adams 1 639 
 
 V. Adderbury, East (Inhabitants) (Introd. 
 
 Chap, xxl) 157,487,519 
 
 V. Addis 1116 
 
 y- Adey V. ..'.".'. ii 935 
 
 V. Aides 11 289, 540 
 
 V. Akers ...; i 163 
 
 V. Alford 11 362 
 
 V. Alberton i 630 
 
 V. Allen 1 821 
 
 T. Allgood , ii 312 
 
 V. Allison i 689, 631, 11 2a3 
 
 V. Almon 1 633 
 
 V. Aleley i 17 
 
 T. AU Saints 1 275, 648 
 
 Vol. I. 
 
 Bex or Eeg. v. All Saints, i 84 
 
 V. Antrobus 11 316 
 
 V. Anty 11 59 
 
 V. Appleby i 446, 641, 564, ii, 250 
 
 V.Archer 11 58 
 
 V. Arnold .. ., 11 228, 243, 311 
 
 V. Arundel 1 6.39 
 
 V. Ashton 1 295, 297 
 
 V. Aspinall 1 762 
 
 T. Atkins i i 4.35 
 
 V. Atwood -..i 110, 11 6.S1 
 
 V. Aylett li 310 
 
 V. Azire , 1 94 
 
 V. Babb 11 314, 319 
 
 V. Bailey i 844 
 
 V. Balnes .1 643 
 
 V. Ball i 768, 769, 11 994 
 
 V. Baldwin ii 49 
 
 V. Baity ii 892 
 
 V.Banks 11 OO- 
 
 V. Barker 11 307 
 
 V. Barnard i 114 
 
 V. Barnes i 433, ii 75, 449, 839 
 
 V. Bamett ii 59 
 
 V. Barnsley i 451 
 
 V. Barr ; i 650 
 
 V. Bartatt 1 449 
 
 V. Bartlett. i 443,541,560, 11241 
 
 V. Bathwiok i 85, ii 458, 481 
 
 V. Beany 1 626 
 
 V. Beard , 1 682 
 
 V. Beavan .* , ..... i 60 
 
 V. Bedder 1 64, 109 
 
 V. Bedell 1 87, 109, 255 
 
 V. Bedlngham i 451 
 
 V. Beezley 11 910 
 
 V.Bellamy 1861, 11 356, 398 
 
 V. Bellringer ii 800 
 
 v.Bennet 11 246 
 
 V. Benson 1672,642,844,11.382, .386 
 
 V. Bentley 11168, 242 
 
 V. Berenger ii 890 
 
 V. Berrett i 433 
 
 V. Bestland i 643 
 
 V. Birch 1158, 85* 
 
 V. Bffchenough ii 57 
 
 V. Bird 1675, 11 59 
 
 V. Birkett 1 116 
 
 V. Blackman 1 62 
 
 V. Blaney 1 60 
 
 V. Blick i 665 
 
 V. Bliss 1219,233,234, 3.34 
 
 V. Bodle ii 910 
 
 V. Borrett - 1 594 
 
 V. Boston 1 S9, 66 
 
 V. Boswell 1 644, 551 
 
 V. Bourdon 11 356 
 
 V. Bourn i 625 
 
 V. Bowler 11 266 
 
 V. Bowman ii306, .356 
 
 V. Boynes ii 2E9 
 
 V. Bramley 1 96, 261 
 
 V. Brampton 11 447 
 
 V. Brazier i 214 
 
 V. Brecknock, &c., Eailway Co ii .320 
 
 V. Brewer 1131 135 
 
 ■ V. Briggs 1 7.;6 
 
 V, Brlmilow i 62i3 
 
 V. Briscoe (Lady) ii 853 
 
 V. Bristol and Exeter Eailway Co 11 319 
 
 V. Britton 1 564 
 
 V. Bromley 1 274 
 
 V. Bromwioh 1435, 11 2Sq 
 
 V. Brooke ii ffl9 
 
 V. Brookes 1 891 
 
 V. Brougfhton 1 u8 
 
 V. Brown 1681, 625, 660, ii 362 
 
 V. Brownell 11 836 
 
 V. Buckingham 11312,316, 319 
 
 V. Budd i 640 
 
 V. Bull ii 910 
 
 V. Bullock 1 891 
 
 V. Burbage 11 824 
 
 V. Burdett 1573, 599, 821 
 
 V. Burley 1 551 
 
 V. Bury.... 1 264 
 
 v.- Butcher i 554 
 
 V. Butler i 5M 824 
 
 V. Battery li 93 
 
 V. Cadogan CEarl) , 11 819 
 
 T. Cambridge (University) i 623, 623 
 
 lOA 
 
Ixxiv 
 
 TABLE 01" CASES CITED. 
 
 Rex or Reg. v. Campbell i 297 
 
 V. Candey , i 163 
 
 v. Canning i 119 
 
 V. Carllle il H 
 
 V. Carnarvonshire * ,..i 451 
 
 V. Carpenter i 389 
 
 T. Carr i 411 
 
 V. Cass 1543, 557 
 
 V. Castle Careinion .......i 105 
 
 v. Morton 1576, 11 571 
 
 V. Castleton 1 586, 11 514, 567, 570 
 
 V. Oatesby ...1 642 
 
 V. Catterall ii 167 
 
 V. Chadderton 254, 287 
 
 V. Chapman i 61, li 891 
 
 V. Chamock , 1 111 
 
 V. Chatham 1 451 
 
 v. Cheadle , ii 697 
 
 V. Cheater (Bishop) 1794,11102, 308 
 
 V. (Mayor) t.li 800 
 
 V. Christian 1876,11289, 364 
 
 v. Chmstie i 294 
 
 V. Clapham 1252, ii 280 
 
 T. Clark 1180,470,760, 762 
 
 V. Clarke .i 184 
 
 y. Clear 11 320 
 
 v. Clements ■ ., ii 229 
 
 V. Clewes 1.418,540,551,553,664, 562 
 
 V. Cliriger , 184, 85 
 
 V. Cohen ;ii 1014 
 
 V. Cole 162, 765 
 
 V. Coleorton i 451 
 
 V. Colley 11 887 
 
 V. Collins 11 899 
 
 V. Combs 1 815 
 
 V. Connor ;..ii 58 
 
 V. Cook or (Cooke) . .1 65, 632, 771, 875, 11 841, 885 
 
 V. Cooper .- i 552 
 
 T. Cope......... 1 205 
 
 V. Coppard 11 362 
 
 V. Corden i 642, 821 
 
 V. Cornelina ii 319 
 
 V. Corsham-. ii 168 
 
 V. Cottingham ., 11168 
 
 V. Cotton - * . .1 239, 245 
 
 V. Court - •. . .i 64.3, 558 
 
 V. Coveney 11225,226, 238 
 
 V. Creswell ..i 692 
 
 T. Crockett 1293, 297 
 
 V. Crofts ii 356 
 
 V. Crondall i 351 
 
 V. Crossfleld 1667 
 
 V. Crossley ii 289 
 
 V. Crowther 1213,11 226 
 
 V. Cruise 11 306* 
 
 T. Crumpton ii 68, 69 
 
 V. Curtis ii 232 
 
 V. Daman i 642 
 
 V. Daniel ii 246 
 
 V. Dann ii 67 
 
 V. Darkin ii 838 
 
 V. Davis 11 289 
 
 V. Dawbar i 110, 115 
 
 V. Deacon i 766 
 
 V. Debenham 1 336, 11 291 
 
 V. De Berenger 1 620, ii 272, 9^9, 935 
 
 V. Deboragh i 401 
 
 V. Denio i 176, 11 567 
 
 V. Dent 11 435 
 
 V. Despard i 106 
 
 V. Dewhurst ii 246 
 
 V. Derrlngton i 559 
 
 V. Dingier 11 226, 280 
 
 V. Dingley i 561 
 
 V. Dixon „. . .1 149, 632, 634 
 
 V. Doherty { 95 
 
 V. Dolgelly (Guardians) i 628 
 
 V. Doran 1576, 580 
 
 V. Douglas 1 443, ii 929 
 
 V. Dowlin i 401 
 
 V. Dowling 1 890 
 
 V. Downing 1 548 
 
 V. Drew 1 644, 567 
 
 V. Duncombe 11 906 
 
 V. Dunn 1648, 772 
 
 V. Durham , 1 IIQ 
 
 V. Durnell 1689 
 
 V. Dyke 1 117 
 
 V. Eardlsland Ii 85 
 
 V. East Winch 1461,470 
 
 V. Eastern Counties Railway Co 11 319 
 
 Rex or Reg. v. Edgar i 542 
 
 V. Edmoiiton i 648 
 
 V. Edmunds 1446,541,11216, 230 
 
 V. Edwards 1 814, li 232, 968, 987 
 
 V. Edwinstone .1 451 
 
 V. Egertdn. 1767, 772 
 
 V. Eldershaw i 629 
 
 V. Eldridge , i 5^1 
 
 V. Ellicombe 1676,580,11527, 542 
 
 V. Ellis... 161,58,560,755,766,11,68, 241 
 
 V. Ely (Bishop) : 11312, 316 
 
 V. Emmbn ii 838 
 
 V. Enoch . . ; i 544, 557 
 
 V. Entrehman i 17 
 
 V. Erlswell . .1 174, 213, 232, li 209, 211, 430, 250, 
 
 264, 270 
 
 V. Erith 1 253 
 
 V. iErrington i 294, H 2?7 
 
 V. Essex (Earl) i 564 
 
 V. Exeter (Clia"p) 1659, 660 
 
 V. Faber i 771 
 
 V. Eagent i 294, 296 
 
 V. Eagg il 243 
 
 V. Falkner i 641 
 
 V. Parlelgh , . , .ii 554 
 
 V. Farler i 112, IIT 
 
 V. Earr ii 892 
 
 V. Farley 1139 
 
 V. Farfington .1 632 
 
 V. FeamsUre i583, ii 246 
 
 V. Fellows. i 541 
 
 V. Fenton ii 625, 540 
 
 V. Eefry Frystone i 174, 213, 264, 287, 11 211 
 
 V. Finney 11 303 
 
 V. Fisher 1434, ii 246 
 
 V. Fitzgerald ; ii 288 
 
 V. Flaherty 1 642 
 
 V. Fleet (Warden) ii 6 
 
 V. Flemmlng li 228 
 
 V. Fletcher i 65, 540 
 
 v. Tlintsiiire ii 660 
 
 V. Eorbes 11226 
 
 V. Ford ^ ji 968 
 
 V. Eorsyth i 619, 891 
 
 V. Foster i 640, ii 246 
 
 V. France 11238, 232 
 
 V. Franklin ii274, Sns 
 
 V. Frederick { 90 
 
 V. Frost i97, 877 
 
 V. Fuller li 233 
 
 V. Fursey i 595, ii 552 
 
 V. Qadbury i 765 
 
 V. Garbett i 663, ii 244, 936 
 
 V. Gardner 1 434, ii 276 
 
 V. Garner 1544, 664 
 
 V. Gay 1 297 
 
 V. Gazard 1 165 
 
 V. George i 65 
 
 V. Gibbons 1136, 548 
 
 V. Gibney i 659 
 
 V. Gibson ii 93 
 
 V. Gilham i 19, 138 
 
 V. GfllbrasB , . .li 838 
 
 V. Gilson 1676, 680 
 
 V. Gisburn 1 103 
 
 V. GlsBon il 58 
 
 V. Gleed i 85 
 
 V. Glossop i 869 
 
 V. CJoadby ii . 68 
 
 V. Goldshede i 663 
 
 V. Goodere ii 885 
 
 V. Goodwin , 1 594 
 
 V. Gordon i 207, 692, 694, 832, ii 3, 366, 826 
 
 V. Gouche { 643 
 
 V. Gould i 768, 11 60 
 
 V. Grady 11226,226, 238 
 
 V. Grant i 654 
 
 V. Gray 1 287, 583 
 
 V. Great Bolton 11 168 
 
 V. Great Parrington 11 318 
 
 V. Great Westowe il 317 
 
 V. Green or Greene 1 658, 11 243, 272 
 
 V. Greenacre 1540, 11240, 810 
 
 V. Greenaway ii 816 
 
 V. Groonwlck i 264 
 
 V. Griffiths 1 557 
 
 v.. Grimes il 14 
 
 V. Grimwood 11 289 
 
 V, Groombrldge l 629 
 
 V. Grounaell i 831 
 
 V. Grundou ii loa 
 
TABLE OF CASES CITED. 
 
 Ixxv 
 
 Rex or Eeg. v. Gully i 619 
 
 V. -Qutcli i 6S3 
 
 V. GntteiiagB i 10, 11 BS, 831 
 
 V. Qwyn , : . .11 446 
 
 V. Hadaem .11 890 
 
 T.Bagan 11230.232 
 
 V. Hagell .i 642 
 
 V. Haftis 11389,443, 450 
 
 V. Hall 1 12, 6?S, 639, il 246 
 
 V. Hanley ; ;.. ....1 469 
 
 V. Harl)onne 1 640 
 
 V. Harawick 1211,487,493, 548 
 
 V. Hardy '. ...... .1 565, li 907, 917, 949 
 
 V. Hare ...1 622 
 
 V. HaigraveB 1 113 
 
 V. Harrlngwortli 11 461 
 
 T. Harris..-...;...: 1583,11246,247, 910 
 
 V. Harrison.... ..........11239, 317 
 
 T. Harvey i 555, 11 90 
 
 V. Haslam i 109 
 
 V. Haslingfieia 11 413 
 
 V. Hastings.-. 1 110, 11% 
 
 v. Hatflela ..1 648 
 
 V. Hanghley 11 4o4 
 
 T. Hawfana ; 1 S16, ii 527 
 
 V. Ha-worth i 433, 563, ii 540, 541 
 
 V. Hay -. i 641 
 
 v.Haynea 1 889 
 
 T, Hayward i 295 
 
 V. Hazy-.' : i572, 821 
 
 V. Head : i«'f.5;il 442 
 
 V.-Heam 1540,644,567, 668 
 
 v. Hebaen .' ii 13, 14 
 
 V. Helling .1 642 
 
 v.Henderson ii 57 
 
 T. Hendan (Inhabitants) -.1 342 
 
 v.Hensey .-...;...; 11 59G 
 
 V. Hewett 1 544. 558 
 
 V. Hewins '. ,.i 876 
 
 v; Heyaon ii 319 
 
 T.,Heyfora(Lora) .1 342 
 
 V. Hlckllng -.-.-.■ ii 104, 169 
 
 -r.-Higgins i,540,- 11 997 
 
 T,Highfleia ]■::. ..i ms 
 
 v.Higson.. ...... ..-...-.-.■.... 11 244, 416 
 
 T.Hin-.-. -. .- '. .1 632, 830 
 
 T.Efmckley i 042 
 
 v.- Hinks ; 1 65, 62 
 
 v.Hmley :.: 1772 
 
 v: Hiflbcman ii 246 
 
 y: Hirst • ii 246 
 
 ■ v.-Hoage 1 554 
 
 ' v.-Hoagkiss i 765 
 
 T.'Hoagson. .- i 762, 768,11 946 
 
 r. Hogg -.-.'. :ii 230 
 
 T.HoIcroft .-.-.-.■. 1156, 60 
 
 V. Hoia-en ii 9U, 969 
 
 V.Holland 1889,11 307 
 
 V, Hollingshead ;li 246 
 
 V. HoUister. . : ai 320 
 
 vr Holmes ■ ..1558 
 
 v: Holt- :i 620, 843, ii 274, 275 
 
 V. Holtkam: : : :;..... .1 108 
 
 -y; Holy- Trinity.- -...-. ..1578 
 
 T..Hoopor: . ; : . ; ; ii 2, 249, 350 
 
 T.Hopper . : : : . ;..:....; ,iM2, 582 
 
 V. Hdngh-. .-. , ■.-.-.-.-. . . .- J . .-'. 1 769 
 
 V. Howard. .i 592 
 
 v:Howe 11 962 
 
 V. Howell ..... .-..- ..-.■. 1 291 
 
 T, Howes. 1 552 
 
 V. Hnbe ; : 1581 
 
 v.Hncks .■.■;.: ; :. 1 297 
 
 ■v'.Hnet-.v.-.. ■.■.•.•.•..■.■..■.. ..•.-. 158.3, ii 246 
 
 v.Hnglies- :...•.... ..■.•.•...-... ■.1659,11 289 
 
 T. Hnlcot .-.■... .....;. .1 643 
 
 V. Humphries . . .-. . . ■. 11 542 
 
 V. Hnnt .......-.-.■,•...... 1 207, 500, 632, 773 
 
 T.flttrley .-.-. '...iB71, 672 
 
 V, Hntchinson 1 287 
 
 V. lies.;...;.:.;..;..... .113, 362 
 
 V. Ings . . ■ '. . 11 524 
 
 V. Jackson-.-. i 881, 891 
 
 V. Jacobs.;.... 1588, li 246 
 
 V. Jagfeer .....: 1 94 
 
 v.- James- .;...: -. .11 382 
 
 V. Jarv-ls -. . . . . .- 1 110, 821 
 
 V. Jellyman i 94 
 
 T-. Jenk.. 1 844 
 
 V.Jenkins 1544 
 
 V.John..... 195,292, 297, ii 240 
 
 Eex or Eeg. v. Jonaon 1 61, 183, 645, 11 227, 228, 310, 
 
 554,631 
 
 V. Johnstone ;..! 843 
 
 V. Joliffe .-. 1 400, 401, 629 
 
 V. Jones 1 110, 401, 540, 544, 557^ 560-, 594, 11 
 
 --■ 56,241,246,303,469,888,851 
 
 V. Kea ;.. ....187, 855 
 
 V. Eenllworth 11 168, 553, 667 
 
 V. Kcnrick: .- .f ; . . .1 65 
 
 V. Kerne ; 1 435 
 
 V. Kerr 1 559, 560 
 
 V. Kimber 11 244 
 
 V. Kl^g ii 59, 444 
 
 V. Kingston i 548, 557 
 
 V, Klrkwooa 1 768 
 
 V. Knaptoft 1147,167 
 
 V. Knollys 1 620 
 
 V. -Koops 11 414 
 
 V. Lafone 1 65 
 
 V. taindon 1 472, 11 659, 683, 697 
 
 V. Lambe 1 532, 537, 583, 11 246, 248 
 
 V. Lambert : :.■ 1 776 
 
 V. Lancashire (Justices) ii 55 
 
 V. -Land Tax (GommlBBionere) 11291, 308 
 
 v.- Landnlph, .- ..;.i 647 
 
 V. Latchford 1 550 
 
 V. Laugher 1 544, 558, il'244, 697 
 
 ■V. Layer I 11 250, 540 
 
 V. Leake 1 650 
 
 V. Ledgard il289, 444 
 
 V.Lee....- 11 319 
 
 v.Leefe 1861,862 
 
 ■". -Leicester ii 318 
 
 V.Leigh.: 1 219, 233, 236, 239,' 11 66 
 
 v. Levy... 1 889 
 
 V. Lewis . . . .' 1 560, 563, ii i«4, 946 
 
 V. Lincoln . . : ; . . .li 362 
 
 V. Lingate .1 652 
 
 V. Lisle-...-..;. 11 14 
 
 V. Little -..1 642 
 
 V. Lloyd 1 287, 540, 55S, 650 
 
 v.- Lockart .1 654 
 
 V. Locker... 1 90 
 
 T. London (Mayor, liSc.) 11 ^8, 309 
 
 V. Long...: i767,7(j8,li 243 
 
 V. Long Buckby 1 643, 11 571 
 
 V. Lookup... - 1 862 
 
 ■ V. Lovett. .-. 1 632, 633 
 
 V. Low :. .ii 47, 167 
 
 V. Lnbbenham 1 478, 11 280 
 
 V. Lucas . : 11 312, 313, .321 
 
 V; Luckap 1 61 
 
 V. Lufife i 78, 87, 630 
 
 V. M'Carthy -..1583 
 
 -v.M'Naghton .1779 
 
 V. -M'Phanc 11 5.S 
 
 v.M'Eae .11 60 
 
 V. Magill ii 243 
 
 V. MaUinson .i 821 
 
 viMalvey.- 11 247 
 
 V; Mausfleld 1 87, 255, 268, 631, 772 
 
 v.- Marsh ; 1 167 
 
 V. Marshall 11 231 
 
 v.'Martin... 1762,768,1160, 290 
 
 v.- Mattlngley. ii 658 
 
 agora. 
 
 V. -Mead.-.-. 1 287, li 319 
 
 V. Medley i 634 
 
 v. Megsou i 184, 292 
 
 V. Meroeron : .... .i 563 
 
 V: Merchant Tailors' Oe. 11 312, 314, 320 
 
 V. Meredith. ....... . .-. : . . .11 60 
 
 vl Mferthyr Tiavil- . ; 1 579 
 
 v.M-ldaiehnrst-. 1 830 
 
 v. -MldaieSex-(JntiGes), (In re Bowman),. 11 306 
 
 V; Mlddlezoy 11486 
 
 v.Miaiam. il 307 
 
 V. Millard.. 1 768, 770 
 
 v.Miller... ^.i«19,li278 
 
 V. Mills n 544, 657 
 
 V. Milton (Inhabitants) 1236 
 
 V: Minton .-.- i 843 
 
 V. Mogg 1 767 
 
 v." -Montagu .- 1 659 
 
 V.Moore ....;... 1537,767,11249 
 
 v.'-Moores '. 1 116, 591 ii 540, 543 
 
 V. Horan ii 987 
 
 ■ v.-Margan..-. - U 616, 620 
 
 . V. -Mopley 11 2.39 
 
 V. Mor-phew ■ 11 251 
 
 V. Morris ...»,,,..,.-.,,...,..., 1 642. 11 382, 386 
 
Ixxvi 
 
 TABLB OP CASES CITED. 
 
 Eex orEeg. v. Jlortlock iiB39, 
 
 T. Morton 1544, 557, ii 
 
 V. Mosey i 
 
 V. Moseley 1892, 
 
 V. Mothersell ii 295, 
 
 V. Murlis '. ii 
 
 V. Murphy 1294,594, 11885, 
 
 205, 591 
 
 . Neale 1 
 
 . Netherthong 11443, 
 
 . Netherseal .11 
 
 . Neville 1 451, 
 
 . Newcastle ^. . . li 
 
 . Newton 1453,542,592,11 
 
 . NlcholaB 112,184, 
 
 . Noakes i 
 
 . North Bedbnrn 11 
 
 . Norlli Petherton , li 
 
 . Northleach. &c.. Roads (Trustees) 11 
 
 . Northwlngfleld 11 
 
 . Nottingham 1 272, 11 
 
 . Nuneham Courtney 1 174, 213, 254, 11 
 
 . Nunez i 
 
 . Nutt 1 558, 11 
 
 . Nuttey i 
 
 . G'Coigley 11 
 
 . O'Connell 1205, 
 
 . O'Connor 1 
 
 . 01dbu1*y 11 
 
 . Oldroyd 11986, 
 
 . Olney li 
 
 . Orchard 1 892, 11 
 
 •Orgill 1 
 
 . Orton 11 
 
 . Osborne 1 184, 187, il 228,-800, 
 
 . Oulton 1 
 
 . Owen 1 108, 562, 630, 11 
 
 . Packer 11 
 
 . Padstow 1 569, 
 
 . Page 11 3, 
 
 . Paget (Lord) li 
 
 . Pam 1 
 
 . Painter 114, 11 
 
 . Parker 1 583, li 
 
 , Parratt : 1 544, 
 
 .Parry 1157, 
 
 . Partridge 1 557, 
 
 . Payne i 
 
 . Pearoe 1 94, 772, 844, 11 
 
 . Pembridge (Inhabitants) 1 234, 581, 11 
 
 443, 
 
 . Penge 11 
 
 . Perkins i 288, 292, 294, 
 
 . Perry 1 
 
 . Phelps il 
 
 .Philips 1 
 
 . Phillips i 581, 583, 629, 771, li 
 
 .Philp i 
 
 . Picton 1 417, 11 275, 428, 
 
 . PIddlehlnton li 
 
 . Piercy 1 
 
 .Pike 112, 
 
 . Pikesley 1 560, 561, 11 
 
 . Pippet 1 
 
 . Pitcher 11 
 
 . Pl«nt '. ii 
 
 . Plumer 11 240, 
 
 . Plummer 1 
 
 . Pool 11 
 
 . Potter M^ ii 228, 
 
 . Pountney 1 
 
 Powell 1844,11 
 
 . Pressly 11 
 
 . Preston (Inhabs) : ii 
 
 (Lord) 1 
 
 . Pringle 1 
 
 . Purfoy il 
 
 .Pyo,. 1 
 
 . Wielch il 68, 
 
 . Kadburno „ 11 
 
 . Eadford .- I 
 
 . Ealeigh ■ i 
 
 . Eamsden 11 
 
 . Hawden 1 578, 579, 11 
 
 . Eeading 1 87, 680, 11 
 
 . Reason i <m 397^ 
 
 ;. Eeebly 11 
 
 •. Eeed 
 
 '. Rees : 1 560, 
 
 .Eeld Il 
 
 .Eeilly il 
 
 Eex or Eeg. v. Remnant il 
 
 V. Rhodes ii 
 
 V. Eichards 1 548, 657, 
 
 V. Rickman i 
 
 V. Ring 11 
 
 v. Eish worth 1 253. 
 
 V. Rivers 1 560, B61, 684. U 
 
 V. Roberts 1 
 
 V. Robins 1 
 
 V. Robinson i 772. 11 
 
 V. Roche 11 
 
 T. Rodham 11 
 
 v. Eogers i 572, 821, ii 
 
 V. Eook 1 87, il 
 
 T. Eookwood i 106, ii 
 
 V. Eooney 1 
 
 T. Roper i 
 
 V. Rosier i 
 
 V. Rosser 1 
 
 V. Row i 
 
 ^ T. Rowland 1 64, 
 
 V. Eowley 1 
 
 v. Endd— (See Eudd's Case) i 
 
 V. Rudge 11 951, 
 
 v. Eussell .... 1 136, 207, 11 226, 228, 230, 833, 
 
 V. Ryle 1 
 
 V. Ryton 11443, 
 
 V. St. Alban's (Mayor) ii 
 
 V. St. George 11 902, 910, 
 
 v. St. John { 
 
 V. St. Katharine 11 
 
 V. St. Margaret's Westminster , 1 
 
 V. St. Martin's Leicester. . .1 579, 11 578| 917, 
 
 V. St. Mary, Lambeth ii 
 
 T. St. Mary's Nottingham li 
 
 V. St. Marylebone, 11 
 
 V. St. Mildjed's 1 
 
 V. St. Pancras 11 BB, 
 
 V. St. Peter i 
 
 V. St. Peters 1 
 
 V. St. Sepulchre 1254, li 
 
 V. Salisbury 1 
 
 V. Salter • i 
 
 V. Sandys , 1562, il 
 
 V. Sansome 11 
 
 T. Sarratt ii 167, 
 
 T. Savage ii 
 
 V. Scaife i 
 
 V. Scammonden 1 472, 11 658, 683, 
 
 v. Scott 11 
 
 V. Searle 1 
 
 V. Sellers i 
 
 V. Sergeant i84, 
 
 V. Serva i 
 
 V. Sexton 1852, BBS, 
 
 V. Shaftesbury (Karl) , li 
 
 V. Sharpe * 1 
 
 V. Shaw 1 559, 778, 11 
 
 V. Shellard 1209,11235, 966, 
 
 V. Shelley li 312,319, 
 
 V. Shellswell u 
 
 V. Shepherd 1 B44, 
 
 V. Sheppard 1 
 
 V. Sheridan 1 
 
 V. Sherman 161, 
 
 V. ShlUcock 1 583,11 
 
 V. Shipley 1 
 
 v.Sill i 
 
 V. Simmonds il 
 
 V. Simmons 'i 
 
 V. Slmmonsto 1 453 
 
 V. Simons 1 497, 534, ii 225, 
 
 V. Simpson 1294, 544, 
 
 V. Sidney- U930, 
 
 V. Slaughter i 
 
 V. Sloman n 329 
 
 V. Smallpieco a 
 
 V. Smith 1 90, 108, IIB, 218, il 49, 216, 
 
 = ,., , 230,242, 
 
 V. Smithies 1 443 
 
 V. Bparkes Usa 
 
 V. Spearpolnt u 
 
 V. Spencer u ssa, 
 
 V. SpiUsburv- 1 298, 659, 11 
 
 V. Staffordshire .n 
 
 V. Stallard " j 
 
 V. Stamford (Mayor) "."'i 
 
 V. Stamper j 
 
 V. Stanley [ j 
 
 V. Stannard 1 
 
 V. Steel i 
 
 914 
 
 288 
 891 
 768 
 834 
 272 
 242 
 772 
 762 
 
 59 
 255 
 955 
 768 
 843 
 B52 
 
 15 
 543 
 112 
 401 
 112 
 955 
 968 
 3 
 481 
 800 
 971 
 891 
 280 
 626 
 925 
 168 
 936 
 311 
 260 
 101 
 251 
 
 96 
 567 
 768 
 205 
 242 
 244 
 168 
 330 
 287 
 697 
 800 
 779 
 297 
 
 96 
 
 20 
 
 669 
 
 949 
 
 626 
 
 2 
 
 242 
 557 
 632 
 591 
 
 64 
 246 
 632 
 
 91 
 910 
 631 
 642 
 
 64S 
 833 
 318 
 
 997 
 B41 
 138 
 
 249 
 318 
 757 
 B94 
 478 
 461 
 765 
 772 
 
TABLE OI- CASES CITED. 
 
 Ixxvii 
 
 Hex or Heg t. Steptoe 1 540 
 
 V. Stimpson ii 915 
 
 V. Stoke Golding 11 535, 658 
 
 v. Stoke-npon-Trent 11 668, 659, t90 
 
 Y. Stokes 1 108 
 
 T. Stone 160,206, 831 
 
 T. Stoner 11911 
 
 V. Storyer i 167 
 
 V. Stourbridge ii 556 
 
 V. Stourton 1 81 
 
 V. Stowell ii 835 
 
 V. Stratford-upon-Avon (Mayor) 11 800 
 
 V. Stretch ii 829 
 
 V. Summer 1 843 
 
 V. Snddls 11 102 
 
 T. Sunderland i T68 
 
 V.Surrey 11320 
 
 V. Sutton i 15, 219, 238, 621, 630, 11 272, 275 
 
 V. Swallow ; 1 114 
 
 V. Swatkins i 443, 544, 551, 626 
 
 V. Swinnerton .i 564, ii 250 
 
 V. Sykea 11 246 
 
 V. Taverner 1 771 
 
 V. Taylor 1 20, «44, 548, 557, 861 
 
 V. Teal 1 105, 130, 426 
 
 V. Telicote ii 246 
 
 V. Thistlewood 11 524 
 
 V. Thomas i 557, 559, ii 225, 246 
 
 V. Thompson 1 643. 557 
 
 . V. Thornhlll i 524 
 
 V.Thornton 1559,11235 
 
 V. Thring 11362, 398 
 
 V. Throgmorton 1 564 
 
 V. Thruscross . . .•. : ii 295, 448 
 
 V. Thurtell i 91, 554 
 
 V. Tilley i 60 
 
 V. Tilney »..l 150 
 
 v. Tindall ii 1015 
 
 V. Tippet i 541 
 
 V. Tooke i 207, 469, 704, 11 362, 6* 
 
 V. Topham i 435 
 
 v.Tordoft ii 227 
 
 V. Tower Hamlets (Commissioners of 
 
 Sewers) ii 317, 321 
 
 V. Townsend ii 55 
 
 V. Travers i 10 
 
 V. Trehame i 889 
 
 v. Trenwyth i 694 
 
 V. Trowbridge i 451 
 
 V. Trowter 1 297 
 
 V. Tubby i 563 
 
 v. Tucker 1 13 
 
 V. Tuff 1 642 
 
 V. Tum«r 1 445, 821, 11 49, 66, 312, 449 
 
 V.Tyler 1648 
 
 V. Upper Boddington . . .1 135, 140, 145, 154, 
 
 ii 816 
 
 V. ■Dpchurch 1544, 657 
 
 V. Upton 1463 
 
 T. miton Gray i 642 
 
 V. trptou St. Leonards ii 853" 
 
 V. Utterby ii 341 
 
 V. Van ButcheU .1 292, 297 
 
 V Vandercomb i 766, ii 56 
 
 V. Varlo ; ii 800 
 
 v. Vanghan 1 766, li 885 
 
 V Verelst 1605, 592 
 
 V. Vlckery i 67, il 834 
 
 V. Vincent i 307, 11 93 
 
 V. Voke ....'. i 772 
 
 V. Vyse ii 303 
 
 V. Wade 1 12 
 
 T. Wakefleld 1 96, 451 
 
 V. Waltord 11310 
 
 V. Walker i 184, 561, 563 
 
 V. Walkley 1 540, 557 
 
 V. Walter 1 633, 11 249 
 
 V. Ward li 235, 238, 866, 398 
 
 V. Warden, &c 11 6 
 
 V. Wardle 1 843 
 
 V. Wareham 1 254 
 
 V. Warner i 558 
 
 V. WarwlokshaU i 533, 643, 554 
 
 V. Washbrook ii 103 
 
 V. Watkinson i 157 
 
 V Watson 1 97, 110, 163, 164, 205, 207, 
 
 449, 580, 690, 638, 645, ii 294, 303, 458, 
 • 525,877,890,912 
 
 V Webb i 116, 663, li 885 
 
 v! Welbom 1294, 297 
 
 v.Weller 11225,249 
 
 Eex or Eeg v. Wells 1 116 
 
 v. Westbeer il 230 
 
 V. Wheater , 1563,11 935 
 
 V. Wheeley i 561, 562, 5S2, 11 243 
 
 V. Wheelock .11 168 
 
 Y.White .re i 541 
 
 V. Whitchurch i 642 
 
 V. Whiting 1 58, 765 
 
 V.Whitley (Lower) i 487 
 
 V. Wick St. Lawrence ii 168 
 
 v. Wickham 1831,11 697 
 
 V. Wigley 11 820 
 
 T.Wifd 1109, 559 
 
 v.,Wilde 1 620 
 
 V. Wilkes i 116 
 
 V. Wilkinson i 1 248, 249 
 
 V. Williams. . .1 11, 13, 14, 60, 90, 557, 780, 11 609 
 
 V. Willis 1 567 
 
 V. WlllBhaw ii 330, 241, 415 
 
 V. Wilson 1 560, 11 346 
 
 V. Wilts and Berks Canal Co ii 319 
 
 V. Wink i 184 
 
 V. Winkles 11 336 
 
 V. Winkworth 1767, 772 
 
 V. Withal 1 831 
 
 V. Withers i 154, 619, 630, li 277 
 
 V. Woburn (Inhabs.) i 57, 487 
 
 V. Womersley. 11 838 
 
 V.Wood 11863 
 
 V. Woodchester 11 169 
 
 V. Woodcock i 95, 385, 293, 395, 396, 297, 
 
 ii 236, 330 
 
 V. Woodley 1155, 156 
 
 V. Woodward i 636, 890, 891 
 
 V. Wooldale ■. i 466, 11 698 
 
 V. Woolford ii 57 
 
 V. Worsenham ii 319, 327 
 
 V. Worth . .^, 1 306 
 
 V. Wrangle 1579, 11 578 
 
 V. Wright 1 779 
 
 V. Wye 1147, 168, 169 
 
 V. Wylde 11 887 
 
 v., Wylie i 767, 770 
 
 V. Tarwell i 451 
 
 V. Yates 1 69 
 
 T.Telvertoft 1 253 
 
 V. Tend i 541 
 
 v. Teoveley , 11 399 
 
 V. Yewln 11 971 
 
 V. Ynisawdra ii 168 
 
 V. York (Mayor) 11 14 
 
 Eeynell v. Lewis 1 467 
 
 Eeyner V. Pearson 1 514 
 
 Eeynolds v. Penton ; i 623, ii 303 
 
 Elbbans v. Crlckett i 793 
 
 Elcev. Shute i 852 
 
 Eich V. Jackson ii 637, 677 
 
 Eichards v. Bassett i 339, 345, 247, 11 294 
 
 V. Bluck i 887 
 
 V. Frankum. . . . '. 1 172, 411, ii 467 
 
 v. Eichards 1 640, 761 
 
 Eichardson v. Allan ii 982 
 
 V. Anderson li 436 
 
 T. Edmonds il 537 
 
 V. Melllsh 11 288 
 
 V. Watson ii 709, 711, 735, 738, 782 
 
 Elchey v. Ellis 11 380 
 
 Eichmond v. Smith i 633 
 
 Eickarda v. Murdock...-. i 782 
 
 Elckettv. Salwey 1 860 
 
 Eider v. Edwards 1 623 
 
 Eidgway V. Ewbank 1812, 816 
 
 Eldleyv. Gyde 1203,304, 583 
 
 y. Tindall 1795 
 
 Eigg V. Curgenyew i 479 
 
 Eipon v. Daviai 1 169 
 
 Eipper V. Walton 1 809 
 
 Elpniner v. Wright ii 571 
 
 Eisfiton V. Nesbitt i 254, 11 821 
 
 Elvers V. Griffiths i 830 
 
 Eoach V. Garvan 11 178, 182 
 
 Eobbv. Starkey ii 520 
 
 Eoberts v. AUatt ■. . . .ii 937, 943, 949 
 
 V. Barker ii 791 
 
 V. Bradshaw il 644 
 
 v. Carr 1 660 
 
 V. I)03:en 1 595 
 
 V. Eddington ii 303 
 
 V. Blsworth 1 802 
 
 T. Eortnne 11 101 
 
 V. Herbert i 827 
 
Ixxviii 
 
 TABLE OP CASES CITE*. 
 
 KobertB v. Justice i 313, 333, 530 
 
 \. Malston i 760 
 
 V. SHell i 879 
 
 Robertson v. French i 647, li 385, 632 
 
 V-. Jackson. ii 789 
 
 EoTains V. Ma-itlstoue ..1 797 
 
 EobinBon'6 Case. i 491, ii 13, 32 
 
 Eobineoii v. Brown-. li 549 
 
 V. Markis . . .- ii 251, 855 
 
 V. Nahon 1 465 
 
 V. Seareon i 466 
 
 V. Smythe ii 859 
 
 V. Vaughton i 585 
 
 V. Williamson i 319, 340, 387, ii 370 
 
 V. Yarrow i 468 
 
 Robson V. Alexander i 433 
 
 V. Andrade i 486 
 
 V. Att. Gen 1268, 269 
 
 T. Kemp i.l44, 158, 156, 203, 205, 489 
 
 T. EoUs 205, 422 
 
 Eocbe's Case ii 181 
 
 ■V. CampbeU 1 845 
 
 Eocbester (Dean and Chapter) v. Pierce 1 467 
 
 Eoden t. Eyde ii 608 
 
 EodrignezT. Tadmire i 761 
 
 Eoe T. Aylmer ii 312, 319 
 
 d. West V. Davis ii 644 
 
 V.Day 1417, ii 917 
 
 • d.-Pellat V. Ferrers i 406, ii 251 
 
 d.Busbel V. Gore 1 370 
 
 d. Gregson v. Harrison i 444 
 
 V. Harvey ii 536 
 
 V. Ireland i 660, li 371 
 
 v. Jeffery i344, ii 294 
 
 d. Trimleaton (Lord) v. Kemmis — (See 
 
 Trimleston (L'd) v. Kemmis) i 479 
 
 d. Bberall v. Lowe i 643 
 
 V. Minshall t . . .i'444 
 
 v. Parker i 319, 236, ii 394 
 
 V. Rawlings it 480 
 
 d. Brune v. Kawlins. . . .1 250,. 313, 338, 340, 
 
 347, 446, ii 618 
 
 .v. Reading i 264 
 
 ^d. Wilkina v. Wilkins i 448 
 
 Eogiers v. Allen i .282, 283, 284, 306, 869 
 
 T. Brooks i 653 
 
 V. Custance 1 809, ii 696 
 
 V. Jones i 489, ii 104 
 
 V. Payne ii 693 
 
 V. Wood i 319, 239, 241 
 
 -Eokeby Peerage Case ,.{ 263 
 
 Eblf V. Dart ii 364 
 
 Eolt V. Watson i 596 
 
 Eoos Peerage Case i 259 
 
 Rose v.. Bakemore ii 950 
 
 V. Bryant i 364, 368, 369 
 
 Eosoommon Peerage Case i 256, 265, ii 213, 216 
 
 Ross V. Hunter i 816 
 
 Eouch V. Great Weatern Eailway Co i 204, 422 
 
 RoulBton V. Clarke i 861 
 
 Rounds V. Thomas i 426 
 
 Rouse V. Bardln i 626 
 
 V. Redwood 1427, 451 
 
 Eowe V. Brenton i 335, 846, 695, 646, 755, 
 
 ii 263, 369, 278, 293 
 
 V. Grenfell 1633, 646 
 
 V. Hasland i 640 
 
 V. Howden ii .327 
 
 v-Parker.* 754 
 
 Rowland V. Aahby ii 347 
 
 Rowntree v. Jacob i 471, ii 662 
 
 Eucker V. Palsgrave i 7S7 
 
 Eudd'a Case i 107 
 
 Eudd V. Wright i 238, 343 
 
 Ending V. Newell ^ 1 753 
 
 V. Smith .i^. ii 447 
 
 Eugby Charity (Trustees) v. Merryweather i 660 
 
 Eumney v. Beale 1470 
 
 Bundle v. Beaumont ii 389, 324' 
 
 Rush V. Peacock i 637, 11 534 
 
 V. Smith li 896, 899 
 
 Eushton's Caao 110 19 
 
 Eushworth v. Craven ii ggg 
 
 V. Pembroke (Countess) 1 450, ii 16, 
 
 V. Wilson ii 828 
 
 RusseirsCaae 1 266 704 
 
 Russell V. Dickson .V.i623 ii' 363 
 
 (Lord),. Case of (See E. v. Eussell), 1 186, 207 
 
 v^Eider 164,11905 
 
 KuBtv, Baker 1 040 
 
 Eustell.v. Macijuiater i 772 
 
 Eyder V. Malbon i 251, 875 
 
 Eylev.Haggie 1 388 
 
 Rymer v. Cook 1 809 
 
 .S. 
 
 Sadbeverell V. SachevereU. i 449 
 
 Sadler.v. Robins ii,66, 205 
 
 Sage V. Robinson 1 70, 73 
 
 St. George v.. St. Margaret ,,.., 1 824 
 
 Paul (Warden) V. SCorrip ii 15 
 
 Sainsbury v. Matthews i 879, 882 
 
 Saloncciv. Woodmas ii 175 
 
 Salucci v. Johnson ii 175 
 
 Salte V. Thomas i 848, ii 289, 444 
 
 Salter V. Turner ii 381 
 
 Sampson V. Tardley i 312 
 
 Samuel V. Bvang '. ii 341 
 
 Sanderson V. Collman , > 1468, 469 
 
 v., Jackaon ii 744 
 
 V. Laforest i 202, <^ 
 
 Sandford V. Raikes li 739 
 
 V. Remington i 134 
 
 Sands v. Ledger. i 861 
 
 Sangster v. Mazarredo i 496 
 
 Sarum (Earl) v. Spencer ii 219 
 
 Saunders v. Meredith i 368 
 
 V. Pittman ii 859 
 
 V. Wakeleld ii 760 
 
 Sanndersonv. Judge i 644 
 
 Savage v. Smith i 839 
 
 Sawyer v. Birchmore i 156 
 
 Sayer'sCase 1 110 
 
 Sayer V. Garnett i 74 
 
 V. GloBBop i 631,11 447 
 
 • V. Kitchen ii 637 
 
 Schinotti v. Bumatead ii 812 
 
 Scholes V. Chadwlck i 334, 528 
 
 v.. Hilron ..ii 833 
 
 Scholey v. Walsby i 474 
 
 V. Walton i 602 
 
 Schooling V. Lee i 489 
 
 Schutes V. Hodgson ii 929 
 
 Scottv. AUgoQd , ii 34 
 
 V. Chire 1436, 452, 682 
 
 V. Crawford i 469 
 
 V. Jones i 580, ii 539 
 
 V. Lewis ii 383 
 
 v.. Marshall i 632 
 
 . v.. Shearman ii 99 
 
 Serimpshire v.. Scrimpshire i 631, ii 180 
 
 Searle v. Barringtou (Lord) i 344, 364, 367, 368 
 
 Seaton V. Benedict ..., i 737 
 
 Seddon v. Tutop .ii 2I 
 
 Sedgwick v. Watkins 1 77 
 
 Sedgwortb v. Oyerend ' i 863 
 
 Selby V. Harris ii 379 
 
 Sells V. Hoare 119, 31 
 
 Selway V. Chapnel , 1 99 
 
 Selwood V. Mildmay ii 648, 735, 780 
 
 Selwyn's Case i 641 
 
 Senior v. Armitage ii 791 
 
 Sequier V. Hunt i 845 851 
 
 Sergesonv. Sealey ii 265, 266 
 
 Settle Mill Case 1 235 
 
 Severn v. Olive ,ii 838 
 
 Sewell v. Champion i 54, 64 
 
 V. Corp ii 303 
 
 •''■Eyas? ii 608 
 
 .. V. Stubbs.. '. 1103, 422 
 
 SbaCteabury (Lord) v. Digby (Lord) i 15 
 
 Sharp v..NewBbolnie i 203 
 
 Sharpe v. Lamb i 504, 506 
 
 v.Scoging ii 055 
 
 Sbawv. Broom 1530 
 
 V. Holmes 11334, 335 
 
 V. Marlcham n 544 
 
 V. Picton i 4g9 
 
 V. Wilson .', ii 709 
 
 Shearwood v. Hay I 791 
 
 Sheldon v. Whitaker , 1 ggi 
 
 Shelley v. Wright 1 47! 473 
 
 Shelling v. Farmer ii 312! 651 
 
 Shelton v. Xiyius ii 678 
 
 Shepherd v. Chewter i ^^^g 
 
 v. Shorthqnse ii 444 460 
 
 Sheppard v. Gosnold ii 800 
 
 Sheridan's Case (See R. v. Sheridan). 
 
 Sheriff v.. Gadell , i 646 
 
 Sherman v. Sherman i 445 
 
 Sbilcook v. Passman ,,,,.,.,. .'.!!., i 816 
 
TABLE OF CASES CITED. 
 
 Ixxix 
 
 Shipwitli T. Shirley i 341 
 
 Shore T. Bedford 1153 
 
 „v . V. Wilson 1626,11633,709,711, 767 
 
 Short V. Edwards i 803 
 
 y. Lee. . . .1 219, 301, 805, 306, 336, 837, 338, 
 
 339, 344, 346, 594, ii 270, 295 
 
 V.Story .».. {445 
 
 Shortrede v. Cheek ii 744 
 
 Shott V. Streatefleld. .„ i 173 
 
 Shrewsbory v. Blount. . . '. i 38, 186, 363 
 
 S tercets) v. Hart ii 442 
 ock 1508, 511 
 
 Shuttleworth V. Bravo i 75 
 
 Sidaway v. Hay ii 305 
 
 Sideways V. Dyson 11538, 966 
 
 Sidford V. .Chambers i 468 
 
 Sikes V. Marshall 1 370 
 
 SiUick V. Booth 1 640, 641 
 
 Sills V. Brown 1 784, 11 232, 800 
 
 Simpson V. Dismore ii B08 
 
 V. Margitson ii 710, 747 
 
 V. Pickering 11 10 
 
 V. Smith ii 899 
 
 V. Thornton 1 581 
 
 Sims V. Kitchen ii 527 
 
 V. Thomas ii 193 
 
 Sinclair v.. Baggaley i369, 644 
 
 V. Eraser u 181 
 
 V.Sinclair 141,485,11 180 
 
 V. Stephenson ii 528, 624, 017 
 
 Singleton v. Barrett i 590, 807 
 
 Skaife V. Jackson 1 474 
 
 Skilbecky. Garrett 1 645 
 
 Skinner v. BdlanKiht (Lord) i 229 
 
 Skipwithv. Shirley 11 574 
 
 SMpworth V. Green 1 472 
 
 Slack V. Buchanan 1 431 
 
 Slane Peerage Case. . . .1 243, 265, 259, 279, 11 265, 354 
 
 Slaney v.-Wade 1357, 269,280, 472 
 
 Slater v. Hodgson ii 443 
 
 V. Lawson 1 502 
 
 Slatterle v. Pooley ;i 422, 428, 426 
 
 Slegg V. Phillips : 1 74 
 
 Sloman r. Heame 1 155, 489 
 
 Sloper v.. Allen 1 859 
 
 Small v. Attwood 11 688 
 
 Smallcombe v. Bruges :1 202, 489 
 
 Smalt V. WhitmiU 11 819 
 
 Smart v. Prujean ii 748 
 
 V.Williams .1 336 
 
 V. Wolff ii 174 
 
 Smartlev. Williams i 853, 870 
 
 Smethmst v. Taylor 1 520, 800 
 
 Smith's Case 1 534, 566, 572 
 
 Smith V. Battens 1 368, 369, -644 
 
 V. Beadnell i 482 
 
 V. Bird 1 503, 507 
 
 V. Buchanan ii 205 
 
 V. Chester i 468 
 
 V. Cramer 1204, 205 
 
 V. Davies 1816, ii 812 
 
 V. DeWraitz , 1 531 
 
 V. Doe d. Jersey (Earl) ii 751, ■ 760 
 
 V. East India Company 1 164 
 
 v.FeU 1 146 
 
 V. Groom 1 75 
 
 V. Henderson 11 609 
 
 V. .Jeffry.es ii 681, 747, 787, 798 
 
 v.Knowelden 1 886 
 
 V.Lyon 172, 486 
 
 v. Martin 1 796, 820 
 
 V. Maxwell ii 447 
 
 V. Mercer 1 468 
 
 V. Moon 1 444 
 
 v.Morgaji i491,527,u 928 
 
 V. Nicolls ii 181, 193 
 
 V. Prager i 66 
 
 V. Eoyston ii 32 
 
 V. Eummens 1150, 59 
 
 V. Sainsbury 11596, 624 
 
 V. Sleep 1 7,11 524 
 
 V.Smith 1 527 
 
 V. Taylor 1 436, 469 
 
 "v. Truscott ii 829 
 
 V. Veale 11 219 
 
 Vi Whittingham 1 304, 528 
 
 V. Wilkins i 7*9 
 
 V. Wilson 11 709, 710, 790, ,796 
 
 V. Winter 11 329 
 
 V. Toung 1 411, 430, 587, 11 527 
 
 Snellgrove v. Sftevens 11 817 
 
 Snow V. Phillips 1 479 
 
 Snowball V. Goodricke 1 488, 521 
 
 Snowden V. Thomas 1785 
 
 Solita V. Yarrow 11 615 
 
 Solly V. Hinde ii 691 
 
 Solomon V. Turner i 465 
 
 Somsrset 0uke) v. France 1 237, 753, 756 
 
 Soper V. Dible , .1 612 
 
 Sotilichos V. Kemp ii 799 
 
 Southampton (Mayor) v. Graves ii 315 
 
 Sonch d. Ward v. Weirmgale 1 444, 11 444 
 
 Sniithey V. Nash ii 885 
 
 Sbward v. Leggelt 1 810, 815 
 
 Sowerby v. Butcher 11 681 
 
 Spadwellv. 1252, 276 
 
 Spargo V. Brown 1212, 304,480, 486 
 
 Sparke v. Middleton 1 166 
 
 Sparrow v. Earrant ii 619 
 
 Speck V. Miillips i 792 
 
 Spence v. Stuart. 11 821 
 
 Spenceley v. De Willot 1 748, 11 900 
 
 V. Schulenberg 1 159 
 
 Spencer v. Billing .1 595 
 
 V. Harrison i 51, 55 
 
 Spicer v. Cooper. ; 11 790 
 
 Spieres v. Parker 1 821 
 
 Spiers V. Morris 1 336 
 
 Spooner v. Payne ii 498 
 
 SpybeyvlBide 1 830 
 
 Stacey v. Blake 1 525, 793 
 
 Stafford (Lord), Case of : 11958, 972 
 
 V. Clark ii 24 
 
 (Marquis) v. Coyney 1 660 
 
 Peerage Case t 1256, 271, 275 
 
 (Mayor) y. Till 1467 
 
 Stainer v. Droitwltch (Burgesses of) 11 298 
 
 Stammers v. DLson ii 802 
 
 Standage v. Creighton 1 524 
 
 Standen v. Standen 1 278, 11 643, 737 
 
 Stanley v. White i'652, 444 
 
 Stanwlx (Gen.) Case of • i 641 
 
 Stapleton v. Nowell 1 789 
 
 Stapyltonv. Stapylton 1250, 255 
 
 Stead V. Dawber ii 680 
 
 V. Heaton 1 339, 344 
 
 Steadman v. Arden 11 328 
 
 Stearn v. Mills • 1 478 
 
 Steavehsonv. Oliver 1 694 
 
 Stedman v. Qooch 11 399 
 
 Steel V. Prickett 1 219, 648 
 
 Steinkeller v. TS"ewton ii 212, 218, 261, 857 
 
 Stephen V. Gwehiip ..." 1 304 
 
 Stephen V. Pell.: •.. ...1786,793 
 
 Stephens' v/CrichtOn 11 861 
 
 Stevens "v. Berwick^oh Tweed;. 1 787, ii 816 
 
 V. Pinney 1 578 
 
 Stevenson v.' Jones ..', ii 985 
 
 S till V. Halford .:.... 11 379, 413 
 
 V. Hoste , 11 780 
 
 Stobairt v. Dryden 1 285, 286, 838, 11 975 
 
 Stock V. Booth 1 652 
 
 Stockdale v. Hansard 1 620 
 
 Stocken v. Collin ii 294 
 
 Stockfleef V. DeTastet i 482 
 
 Stoddart v. Palmer 1 837, 862 
 
 Stokes V. Mason '. 1 622 
 
 Stonard v. Dunkln 1 469 
 
 Stone V. Ball ii, 660 
 
 V. Blackburn 1 99 
 
 V. Forsyth 11 75, • 449 
 
 Stones V. Byron i 166 
 
 Storace V. Longman 1 626 
 
 Stoi:k V. Denew 11 209 
 
 Storer v. Hunter 1 704 
 
 Stori:v. Scott 1 451 
 
 Stothei:t v. James 1- 530 
 
 Stoveld V. Brewin i 788 
 
 StoweU V. Eobinson ii 678, 679, 680 
 
 Straker v. Grahanl i 168 
 
 Stranger v.' Searle ii 696, 609 
 
 Stratibrd's Case ii 102 
 
 Straton v. EAstall 1 474 
 
 Street v. Brown ii 326 
 
 Streetei* v. Bartlett 11 485 
 
 StricMaiid v. Ward 11 104 
 
 Strode v.EUSSell 11 768 
 
 v; Wiiich^Ster .; i 304 
 
 Stirong v. Dickenson 11 821 
 
 v.Eule 1845 
 
 Strotlier v.Barr i 675, 678 
 
 V. Hutchinson ii 999 
 
Ixxx 
 
 TABLE OF CASES CITED. 
 
 Strother v. Willan ii 237, 303 
 
 Strowd V. Willis i 467 
 
 Strnttv. Bovingdon 1400, iil7, 217 
 
 Stuart V. Greetlall .; . . .ii 293 
 
 T. Lovell i 760, TO 
 
 Stubts V. Sargon ii 739 
 
 Studdy V. Sanders i 157, 470, '11 381 
 
 Stump V. Ayliffe ii 269 
 
 Sturge V. Buchanan i 413, 414, ii B31, 573 
 
 Suffolk Witches, Case of i B34 
 
 Summers v. Moseley ii 896 
 
 Summerset v. Adamson ■, i 453 
 
 Sussex (Barl) t. Temple 1 470, 527, 628 
 
 Peerage Case i 855, 273, 289, 301, 304, 306, 
 
 348, 623, ii 428 
 
 Suster T. Cowell ii 323 
 
 Sutherland t. M'Laughlin 1 37 
 
 Sutton V. Buck i 646 
 
 Swain v. Lewis ; ii 544 
 
 Swallow V. Beaumont i 861 
 
 Swan and Jeffry, Case of i 831 
 
 Sweet V. Lee ii 709, 786 
 
 Swift V. Swift ii 929 
 
 Swinnerton v. Stafford (Marq.) ; . . . . i 6, ii 441 
 
 Swire V. Bell ii 492 
 
 Sy bray v. Whi te 1 517 
 
 Sydenham t. Band ii 820 
 
 Syers v. Jones ii 790 
 
 Sylliran v. Stradling; i 467 
 
 Sydes v. Dunbar i 166 
 
 Symmons v. Blake i 772 
 
 T. 
 
 Talbot V. Hodson i 643, Ii 504 
 
 V. Lewis i 231, 243 
 
 T. Villeboys ii 312 
 
 Tallock V. Dunn i 502 
 
 Tanner v. Taylor 11 917 
 
 Taplin v. Atty il 523 
 
 Tapp V. Lee i 633 
 
 Tarletou v. Tarleton 11 182, 207 
 
 Taverner t. Little i 794 
 
 Taylor V. Barclay 1619, 620 
 
 V. Blacklow 1 1 148, 153 
 
 V. Briggs ii 789 
 
 T. Olemson ii 103 
 
 T- Cole 1 258, 479 
 
 T. Croker i 468 
 
 V. Devey i 234, 285, 11 291 
 
 V. Diploqk 1 641 
 
 V. Poster 1135, 524 
 
 T. Pox 1 310 
 
 V. Hooman i 859 
 
 T. Horde i 643 
 
 V. Jones ii 580 
 
 V. Kinloch 1489, 644 
 
 T. Needham i 467 
 
 T- Parry i 756, it 272 
 
 V. Roy. Exch. Ass. Co 11 851 
 
 V. Willans i 171, 524, 11 1013 
 
 TayntouT. Hannay i 527 
 
 Teed v. Elworthy i 852 
 
 V. Martin ii 285 
 
 Tellardv. Shebbeare 1 232 
 
 Tempanyv» Bernard i 861 
 
 Temperleyv. Scott i414, ii 883 
 
 Tempest T. Kilner 1 841 
 
 Tennant t. Hamilton 1 750, 757, ii 901 
 
 Terry v. Huntington ii lol 
 
 Tewksbury (Bailiffs, &c.)v.Brlncknell..i859, ii 800 
 
 Thanet (Earl) v. Poster ii 265 
 
 V. Patterson ii 380 
 
 Thatcher v. Walker ii 239 
 
 ThelluBon v. Cosling ii 276 
 
 Thody's Case 1 65 
 
 Thomas v. Ansley i 681, ii 362 
 
 V. Counell 1208, 205 
 
 V. David 11 887, 947, 971 
 
 V. Dunn ii 380 
 
 V. Poyle Ifl46,ii 285 
 
 V. Jenkins 1 219, 229 
 
 V. Kettericke ii 85 
 
 T. Magan ;..! 431 
 
 T.Newton U 986 
 
 d. Jones t. Thomas 1 443 
 
 V. Thomas ; ii 717 
 
 T. White 1 471 
 
 Thompson (or Thomson) v. Austen. . .i 406,'426, 4,30 
 
 v.Blackhurst 11137 
 
 T. Bridges i 489 
 
 V. Davenport 1 161 
 
 Thompson v. Donaldson 11 93 
 
 T. Jackson i 737, 792 
 
 T. Moseley 1162, 750 
 
 V. Trevanion 1 184 
 
 Thome v. Eolffe i 640 
 
 Thornton's Case., 1 560 
 
 Thornton v. JojieS 1 851 
 
 V. Lyster 1 866 
 
 v. Place ii 27 
 
 Thorpe v. Barber 1 60 
 
 V. Cooper ii 21 
 
 V. Gisburpe 11 601, 829 
 
 V. Eoy. Exch. Ass. Co i 779 
 
 ThrelfallT. Webster ii 323 
 
 Threshv. Eake ^ ii 680 
 
 Throgmorton, Case of— (See E. v.Throgmorton). 
 
 T.Walton i 640 
 
 Thiirbane's Case i 466 
 
 Thnrlev. Madison ii 580 
 
 Thurston v. Slatford ii 997 
 
 Thwaites t. Eichardson .- i 498 
 
 TichelT. Short i 445 
 
 Tickle T. Brown i 334, 628 
 
 Tinckler's Case 1 288 
 
 TindalT. Whitrow i 527 
 
 Tinker v. Walpole ii 285 
 
 Tinn v. Billingsley 1 504 
 
 Tinney T. Tinney ii 644 
 
 Title T. Grevet 1 130, ii 929 
 
 Todd v. Winohelsea i 389 
 
 Tomkins v. Ashby ; ii 68 
 
 T. Attorney General 11 289 
 
 Tong's Case i 106, 564 
 
 Tooke, Home, Case of— (See E. T. Tooke). 
 
 Tooker t. Beaufort (Duke) i 624, il 267, 846 
 
 Toosey t. Williams 1 645, ii 572 
 
 Topham t. Braddick 1 676 
 
 T. M'Gregor i 595, ii 928 
 
 Toulmin v. Price i 696 
 
 Tovey T. Lindsay ii 180 
 
 Towle's Case i 831 
 
 Towniey's Case i 889 
 
 ■Townsend v. Downing i 74 
 
 (Marq.) t. Norwich (Bp.) i 674 
 
 v. Champf mown 1 694 
 
 Townshend Peerage Case i 263 
 
 Townson t. Jackson i 850 
 
 Tracy Peerage Case i 256, 265, 780, ii 629 
 
 Travis t. Chaloner i 237, 528, ii 18, 34 
 
 v. Collins 11326, 328, 331, 336 
 
 v. Oxter 11 271 
 
 Treganey v. Fletcher i 622 
 
 TrelawneyT. Coleman 192,181, 644 
 
 Tremaine t. Faith 11 828 
 
 TreviTanT. Lawrence ii41, 166 
 
 Trewhitt T. Lambert i 579, 590, ii 578 
 
 Trimleston (Lord) v. Kemmis i 311, 333, 421 
 
 Trlst T. Johnson ii 527 
 
 Trotter T.Blake ii 60 
 
 T. Harris 1 646 
 
 Trowell t. Castle i 643, ii 879 
 
 Trowter's Case— (See E. v. Trowter). 
 
 Trueman's Case 1 452, 642 
 
 Truslove v. Burton .1 624 
 
 Tuck V. Tuck ii 26 
 
 Tucker v. Barrow i 433 
 
 V. Cracklin 1845, 857 
 
 V. Inmau 1 623 
 
 T. Wilkins 11292, 448 
 
 Tufton T. Whitmore ii 218, 251 
 
 Turley T. Thomas i 621 
 
 Turner's Case ; 1541, 564 
 
 T. Crisp { 364 
 
 V. Gethin ii 816 
 
 T. Hardey i 889 
 
 T.Harvey ii 688 
 
 T. Pearte i 71, 99 
 
 V. Eailton 1 159. 437, 431 
 
 v. Turner ,' i 633 
 
 Turquand t. Knight : i 139, 142, 145 
 
 Turton T. Benson. 1 427 
 
 Twemlowv. Oswin i 642 
 
 TwizellT. Alien 11321, 327 
 
 Tyler v. Bland i 830 
 
 Tyrwhitt v. Wynne i 756, 11 1012 
 
 rdallT. Walton 1 75 
 
 tlhde v. Walters ii 664 
 
 Underhill v. Durham ii 269, 271, 414 
 
 V. Witts 1 581 
 
TABLE OF CASES CITED. 
 
 Ixxxi 
 
 ITnderwodd v. Conrtown (Ld) i 427 
 
 Upton V. Curtis i 69 
 
 Utterton v. Eobins ii 468 
 
 Vacherv. Cocks il70,202,ll 489 
 
 VaiUant v. Dodemead i 135, 136, 13t 
 
 Vain V. Whittingtou iB04, 606 
 
 Vaise v. Delaval i 168 
 
 Valentia (^ord), Case of i 280 
 
 Vallance v. Dewar ii 788 
 
 Van Omeronv. Dowick 1619, 645 
 
 Sandau v. Tamer i 623, 794 
 
 WortT. Wolley i 525 
 
 Vane (Lord), Case of i 95, ii 997 
 
 Varioase v. French ii 855 
 
 Vanghan t. Barnes i 793 
 
 V. Fitzgerald '.ii 219 
 
 V. Martin ii 928 
 
 T. Worrall i 99 
 
 Vaughton t. Brice ii 833 
 
 Vaux Peerage Case i 256, 263, 265, 266 
 
 Veitcli V. Bnssell i 465 
 
 Venafra t. Johnson ii 237, 248 
 
 Verryv. Watkins 1760, ii 961 
 
 Vicary's Case 1449, 492 
 
 Vice V. Anson (Lady) ii 531 
 
 Villiers v. Beaumont ii 655 
 
 Villiers v. Villiers ii 572 
 
 Vincent V. Cole i575, 579 
 
 y Prater i 172 
 
 Viney t. Barrs i 75() 
 
 Vooght V. Winch i660,ii36, 42 
 
 Vowles V. Miller i 648 
 
 V. Toimg 1 77, 248, 260, 265, 270, 272, 276 
 
 Vulliamy v. HasMnson i 251, 258 
 
 Waddington v. Cousins ii 616 
 
 Wade V. Beasley i 802 
 
 T. Brouhton ii 631 
 
 V. Simeon i 71 
 
 Wadley v. Baylies iifl02 
 
 Wadsworth v. Hamshaw i 142 
 
 Wagstaff V. Wilson i 524 
 
 Wain V. Bailey i 596 
 
 V. Warlters ii 676, 760 
 
 Walte V. Gale ii 450 
 
 Waithman v. Weaver i 761 
 
 Wakefield's Case i 94, ii 819 
 
 Wakeman v. West i 282 
 
 Waldridge v. Kennison i 430, 431 
 
 Waldron v. Coombe ii 303 
 
 V. Ward i 135 
 
 Walford v. Fleetwood 1 622 
 
 Walker's Case— (See E. v. Walker) i 18 
 
 V. Beauchamp (Countess) 1 245, ii 447 
 
 V. Broadstock 1833, 527 
 
 T. BumeU i 435 
 
 T. Giles i 71 
 
 T. Holman i 337 
 
 V. Eawson 1 788 
 
 v. Wildmau i 135, 142 
 
 V. Wingfleld i 270, ii 283 
 
 v. Witter ii 136, -182 
 
 Wallace V. Cook ii 288 
 
 V. Kelsall i 474 
 
 V. Small i 431 
 
 Waller v. Horsfall ii 571 
 
 Wallis's Case . . . ^ i 831 
 
 V. Delancy ii 493 
 
 Walpole V. Alexander ii 821 
 
 Walatead V. Levy i 486 
 
 Walter V. Gunner 1 652 
 
 V. Haynes i 645 
 
 Walters v. Pflel ii 449 
 
 y. Eees ii 821 
 
 Walton V. Green 1 187 
 
 V.Shelley i 119 
 
 Wandlaas v. Cawthom i 104 
 
 Ward V. Bllayn ii 136 
 
 V. Garnons i 355 
 
 V. Haydon i 48, 50 
 
 V. litann .i 51, 64 
 
 V. Pearson i 882, 883 
 
 V. Pomfret i 338 
 
 V. Wells ii 251, 493 
 
 V. Wilkinson ii 
 
 Warden v. Fermore ii 493, 
 
 Wargent V. Boilings i; 
 
 Warmsley v. Child i 
 
 "Warren v. Anderson .ii 
 
 V. Greenville i339,344. 
 
 Vol. I. 
 
 497 
 559 
 596 1 
 
 llA 
 
 V. Warren i 
 
 Warrender v. Warrender ii 
 
 Warrinerv. Giles ii 
 
 Warwickshall's Case— (See E. v. Warwickshall) 
 
 i 632, 543. 
 
 Waterman v. Soper '... i 
 
 Watkins v. Morgan ; ; i 
 
 V. Towers i 
 
 Watson's Case— (See E. v. Watson).. i 110, 168, 
 
 207, 
 
 Watson v. Bevem -. ii 
 
 V. Clark i 
 
 V. King i 523, 578, 640, 
 
 V. Moore i 
 
 V. Threlkeld i 
 
 V. Wace i 
 
 Watts V. Lawson i 
 
 V. Lyons ii 
 
 V. Thorpe i 
 
 Waugh V. Bussell i 
 
 Wayman v. Hilliard i 
 
 Weall V. King i 
 
 Weaver v. Prentice ....'. .i. ii 
 
 Webby.Fox M 
 
 V. Page ii 
 
 V. Plummer ii 
 
 V. Smith il39, 
 
 V. Taylor ii 
 
 Webber v. Eudd i 49, ii 
 
 Wedrington (Dr.), Case of ii 
 
 Weeks v. Sparke i 217, 219, 228, 229, 234, 240, 
 
 244, 
 
 Weld V. Hornby ii 
 
 Welleker v. Le Pelletier i 
 
 Wells V. Fisher i 
 
 V. Jesus College 1229, 
 
 V. Maccarmick ii 
 
 ,y. Williams , i 
 
 Welsh's Case ; ii 
 
 Welsh V. Nash ii 
 
 V. Eichards ii 
 
 V. Seabone 1 
 
 Welsteadv. Levy i 
 
 West's Case 1 108, ii 314, 936, 
 
 V. Andrews ; i 
 
 V. Blakeway ii 
 
 Westlake v. Collard .1 
 
 Westmoreland v. Huggins ii 
 
 Weston V. Emes ii 
 
 V. Vaughton ii 
 
 Wey V. Talley i 
 
 Wharam v. Eutlege ^ ii 
 
 Wharton Peerage Case ; . . . ii 273, 
 
 Whateley V. Menheim ii 
 
 Wheatley V. Williams 1181, 
 
 Wheeler v. Atkins i 
 
 V. Lowth ii 
 
 V. Senior i 
 
 Wheeling's Case i 583, 
 
 Whitbourne v. Pettifor ii 
 
 Whitcomb v. Whiting i 491, 
 
 White V. Cuyler i 
 
 V. Driver i 
 
 V. Hill 155,64, 
 
 y. Lisle i 219, 229, 244, 
 
 V. Wilson , i 640, 845, ii 
 
 Whitehead v. Scott i 171, 580, ii 
 
 v. Tattersall ii 
 
 Whitehouse's Case — (See E. v. Whitehonsc). . .1 
 
 Whitelock V. Baker 1245,249, 
 
 V. Musgrove ii 
 
 Whitfleldv. Allan ii 
 
 Whitford v. Toting ii 
 
 Whitmorev. Wilks i 
 
 Whitnash v. George i 307, 
 
 Whittaker v. Edmunds i 
 
 Whittingham v. Bloxham ii 
 
 Whiftuckv. Waters 1263,11281, 
 
 Whitwell V. Bennet i 
 
 Whitwill V. Scheer i 879, 
 
 Whyte V. Eose i 
 
 Wickes V. Clutterbuck ii 
 
 Wihen v. Law i 253, ii 
 
 Wild's Case 1109, 
 
 (And see E. v. Wild.) 
 
 Wild v. Williams i 
 
 Wildman v. GlosBop 1 
 
 Wilkins v. Jadis 1 «1, «7, 
 
 357 
 680 
 645 
 180 
 295 
 
 554 
 648 
 886 
 791 
 205, 
 590 
 934 
 629 
 642 
 417 
 465 
 464 
 431 
 901 
 489 
 861 
 431 
 860 
 ^03 
 649 
 829 
 791 
 485 
 831 
 165 
 102 
 343, 
 270 
 801 
 799 
 83 
 233 
 103 
 619 
 319 
 104 
 308 
 703 
 631 
 943 
 
 431 
 855 
 664 
 370 
 623 
 
 157 
 412 
 380 
 
 76 
 642 
 326 
 501 
 
 92 
 640 
 648 
 310 
 665 
 640 
 103 
 
 94 
 270 
 501 
 928 
 624 
 
 41 
 
 915 
 283 
 845 
 882 
 623 
 104 
 280 
 558 
 
 486 
 846 
 704 
 
Ixxxii 
 
 TABL35 OF r'ASEH OITKD. 
 
 Wilkhisv. Wingftte I 467 
 
 Wilkinson tj Lutwidge ; i 469 
 
 ' ■ v. Payne- i 631 
 
 Willaume V. Gorges- i 703 
 
 "Williams v,.Bartnolomew i 468 
 
 v.-Bridges 1489 
 
 vi -Bryant : 1 466 
 
 V. Callender 1 761 
 
 V. East India-Company i 573, 815 
 
 V. GoodchUd i 230 
 
 V. Graves i 335 
 
 V. Innes i 617- 
 
 V. Jolinson i 86 
 
 V. Jones ii 679 
 
 V. Bagot (Lord) ii 136 
 
 V. Mudie , i 140, 142 
 
 V. Mannings ii 552 
 
 V. -Sills- i 794 
 
 V.Stevens ..- i 75 
 
 V. Taylor i 389 
 
 V. Wilcox ii 1012 
 
 V. Williams i 479, 621, 627 
 
 V. TouBghnsband 11 B67 
 
 Williamson v. Allison i 839 
 
 V.Page.,.,..., ii 866 
 
 Willingham v. Mathews ii 822 
 
 Willis's Case 1686 
 
 Willis V. Bernard 1 171, 181, 343 
 
 V. Jemegan i 445 
 
 V. Peckham 11828 
 
 Willmett V. Harmer i 631, 827 
 
 WlUonghby v. Willonghby 1 622 
 
 WUman v. Worrall : .ii 492, 498, 596 
 
 Wilson V. Allen . i 673 
 
 V. Bovrie i 577, 579, ii 578 
 
 V.Gilbert : 1 857 
 
 V, Haanay i 76 
 
 V. Hodges i 640 
 
 V. Eastall. 1 134, 135, 136, 139, 140, 148 
 
 V. Sogers ii 308 
 
 V. Squire ii 710 
 
 V. Tamer 1 523 
 
 Wilton V. Snook, , 1 800 
 
 -V.Webster il82, 644 
 
 Wiltshire V. Sidford i 648 
 
 Wiltzie V. Adamson i 447 
 
 Wimbush v. Tailbois i 793 
 
 Winch V. Winchester ii 678 
 
 Wlnier v. Brett ii 994 
 
 Winter V. Miles i 619 
 
 V. Wroot i 181 
 
 Wlthnell V. Gartham i 231, ii 802 
 
 WoHaston v. Hakewill i 580, ii 595 
 
 Wolley V, Brownhill 1 229, 11 578 
 
 Wood V. Argyle (Duke) 1 466 
 
 V. Braddiok ....: 1498, 602 
 
 V. Cooper 11 928 
 
 V. Dodson i 51 
 
 V. Drury ii 499 
 
 V. Harding i 622 
 
 V. Mackiuson 11 899 
 
 V. Motewood 11 329 
 
 V. Peyton 11 26 
 
 V. Strickland 11 539 
 
 T- Veal 1334, 650 
 
 Woodbridge v. Spooner' -.'. , ii 673 
 
 Woodcock's Gase^(SeeE. v. Woodcock) 195, 285, SSH 
 
 V. -Holdsworth -. .1 7S0, Ii 468 
 
 V. Worthington 11 326 
 
 Woodcraft v. Kinaston 11 386 
 
 Woodford V. Ashley z 861 , 
 
 ' v. Whitely 1596 
 
 Woodgate v. Potts i 88, 589 
 
 Woodhem v. Edwards ..., i 623 
 
 Woodley V. Brown .;; 11 303 
 
 Woodnorth v Gobham (Lord) i 282, 337, 338 
 
 Woodward V. Cotton .-; ii 342 
 
 v. Larking i 473 
 
 Woodyer v. Haddon. 1 650 
 
 Woolett V. Eoberts ; 1 *?9 
 
 Woolway-v. Howe.: .- i 531 
 
 Worlich V; Maesey . . , : i 622 
 
 Worrall -v. Jones ........ (Intro. Chap, xvi) — i 36, 47 
 
 Worsley v. Filisker : . ..i 623, ii 1011 
 
 Wright's Case i 568 
 
 Wright V. Beckett ,. , .ii 982, *8 
 
 V. Court : 1 2H 
 
 d. Clymerv. Littler i 286 
 
 V. Goddard. i-787, 792 
 
 v. Lainson i 369, 644 
 
 V. Netherwood 1 641 
 
 v. Panlin 1 54 
 
 V, Pindar il 1008 
 
 V. Pnlham 11 276 
 
 V. Sarmuda. , 1 642 
 
 V. Sharpe 11 1000 
 
 V. Doe 8. Tatham . .11 72, 401, 571, 675, 11 11, 
 218, 506 
 
 Wrottesley v. Bendert 1 491 
 
 Wyatt V. Bateman 11 498 
 
 V. Gore 1 164 
 
 V. Hertford (Marquis) 1 474 
 
 V. Hodson .- i 601 
 
 V. Eochfort : ii 475 
 
 V. Wilkinson i 74 
 
 Wych V. Meale .. , i 492 
 
 Wyld V. Hopkins 1 467 
 
 Wyn'ne v. Anderson 1 64 
 
 V. Tyrwhitt 1 306, 847, 11 481 
 
 Y. 
 
 Yabsley v. Noble 1 521 
 
 Tate V. Willan i 787 
 
 Tates V. Carhaew 1 412 
 
 Yeates V. Cohnop 1 282 
 
 V. Pliu ii 798 
 
 Yeatmaln, Ex parte i 144 
 
 Young V. Bairher i 74 
 
 V. Brander il 285 
 
 v: Qeiger. 1 799 
 
 V. Homer 11617, 618 
 
 V. Lynch : ii 312 
 
 V. Smith. 1 488, 490 
 
 V.Turing {645 
 
 V. Wright: 1628, 845 
 
 Ynssan v. Clement i 620 
 
 Z. 
 
 Zouch Peerage Case i 256, S59, 281 
 
TABLE OF THE CASES CITED 
 
 IN THE AMERICAN NOTES, 
 
 CONTAINED IX THJ': FIRST AXU aECOND VOLUMBts. 
 
 ■ [THK KEFEltKNCi: IS TO THE MARGINAL PAGE.] 
 
 [The l«tter»^ i auA ii denote tbo voliuue.] 
 
 A. 
 
 Aaroii'SjCase i oii, ,543 
 
 ^bbe T. Goodwin .... .'.■ ii 61, (56, 698, 700, TOl 
 
 Abbee v. Daniels ii 608 
 
 Abbey v. Xill ^.■.■. . .. ..'..■. ii 608 
 
 Abbot T. Mair .'. 1 332 
 
 V. Pike'..'..,... ii 644 
 
 Abdez V. Loveday i C7S, 683 
 
 AbeljT- Porgne i DOl 
 
 Abitno'l y. Bristow '.'. '. i 836 
 
 Aborri V. Bennett ii 649 
 
 Abraliam t. Coates ii 866. 867 
 
 V. Matthewa i 066 
 
 Aeberiyv.Roe i 068 
 
 A<d£er' v. Ledyard ii 115 
 
 Adsprly v. Parkinaon ii 160 
 
 Ac^aiid v> Peai-ce ii 545 
 
 Aekley v. Dygert i 459, 464 
 
 v.Fincb... ii 404 
 
 V. Kellogg i4,,105, 714 
 
 Ackwortb' v! Kemp . , ii 366 
 
 Adiair^s Adm'r v. Eoger'a Adm'r ii 397 
 
 Adair v. Bbaftoe; '.'. i 694 
 
 Adams' T.Balcb ii 52 
 
 >: Barnes iil5, 38, 408 
 
 r. Betz. , ii 387, 343, 347 
 
 V. Brownsoii ..,..., i 499, 501 
 
 V. Butt's ..,...,.. ii 15 
 
 V. Carver . ^ i 126 
 
 v. Davidson.' .'...'. 1 201,320, 332 
 
 v.HUiB '..'.. '....'.'. ..., ii 1004 
 
 v; Field... :...... '.'.'..'... iiOlB, 017 
 
 T. Jacksoii i 218 
 
 V.Kelly: '.■.'..'.. :.'.. iS15, 688 
 
 V. leland. .' ..'.'... i 29, 518 
 
 V. DTa'tt'ocks '. ii 152 
 
 v.'Ofterbabb ii 788 
 
 V. Pearsoii ii 19 
 
 v. Hoct^ell. ii 803 
 
 V. Howe ii 188 
 
 v. Smith ii 53 
 
 V. Spear 1 868 
 
 V. S. & 'W. B. E. Co 11138, 338 
 
 V. Taunton i 609 
 
 V. 'Washington & Sar. E. E.Co. i 227, ii 158, 338 
 
 V. 'Wbrldley ii 265 
 
 . V. 'Wylie i 746, ii 687 
 
 Adamson v. Noel ii 813, 815 
 
 Addi^n V. Siininbns i 385 
 
 Ad?yv. Bridges '., 11374 
 
 Adey V. Jacijueaoii ii 455 
 
 Ad^s V.' Brewer' 1 S22, ii 147 
 
 Adkineon v; Simmons i 885 
 
 .^tna'Iiisiir'aince'Cb.'v, Aldricb ii 285 
 
 Aflalo v.Tb'ufdrinier; i 30, 46, ii 528, 540 
 
 Agawam Bank V, Sears , ,..i 607 
 
 Agawam Bank v. btrever ii 709 
 
 Aggas V. Pickerell ■ 1679, 680 
 
 Agnew; v. Bank of Gettyabiugh ii 54? 
 
 Agry V. Yoijng , , , , , , ii 143, 145 
 
 Amslee V. Wilson i 806 
 
 Ainsworth. v, .Greenlee 1 570, 572, ii 604 
 
 Aitchepon V. Cargey 11402, 403 
 
 Aitkin, BsLParte i 132 
 
 Aikinv.Eldford 1747 
 
 Alban V, Brpwnsall i 651 
 
 Albeev. 'Ward ii 148, 155 
 
 Albera v. .Wilkinson i 38 
 
 Albertson's Leaaee v. Eobeeon 1 252, ii 275, 
 
 435 
 
 Alcock V. AlCQQk i77, .78 
 
 Alden v. Gregory i 691 
 
 'v. Gi-bve , i 311 
 
 V. Murdopk 1 747 
 
 Alder V. Savin i 665 
 
 y. Griner i 867 
 
 Alderman v. FrenQh, i 745 
 
 Aldricb V. Brpwn i 827 
 
 .y.MlEanney 11198, 838 
 
 Aldricka v. Biggjna i 482 
 
 Aldridge v. Bimey '-. 1 610, ii 740 
 
 V. Giles , ii 65 
 
 V. Ireland 1200 
 
 Aleberjy V, W^lby. ,....., i 863 
 
 Alexander v. Alexander ii 325 
 
 V. Bjowii 1 439 
 
 V, Counter ii 335, 526, 540, 541 
 
 v.Dixo'ii .' ii 831 
 
 v.G'buld '. ;. i,322,ii 686 
 
 V. Harris! ....'. -,-i 828, 847 
 
 V. Btpyt , . , . , , ,ii 148, 164 
 
 V. E^err . . , i 665 
 
 V. Maho'n ..'. 1 305, 323, 330 
 
 V. Taylor ii 4 
 
 Alexander's Ex'rs.v. Mann i 696 
 
 Alexander v. Stobkey ii 13 
 
 Alfofdv. auehes,';... ii 209 
 
 Algernon Sidney's Case i 766 
 
 Allaire v.' Ontland, . „ i 841 
 
 V. Preaton ii 473 
 
 Allard v. Labau ii 861. 863 
 
 Allcom V. Ea'tferty ii 862 
 
 Allegre v. Maryland Ins. Co ii 727, 732 
 
 Allen, V. Addlngton 1 633 
 
 V, Allen's Ex'r ii 426 
 
 V. Duncan i 186, 193 
 
 V. Everts ii 688 
 
 V. Gray .'.'..' 11 147, 154, 368 
 
 V. Ilall A..., ....1251, ii 10 
 
 V. llamraond • 11699 
 
 V. Hawks , 11673 
 
 V. UolfciuB ...'.'.., 1125 
 
lixiiv 
 
 TABLE OP OASES CITED, 
 
 Allen v. Hndaou EirerM. las. Co 168, 75,4T1, 
 
 ii 673, 682 
 
 T. Huff i 318 
 
 V. Huntington il 1^^ 
 
 V. Irwin ii 14 
 
 V. JaquiBli ii 693 
 
 V. Kingsbury ii 64B, 784, 785 
 
 V. Luckett 1 476 
 
 V. Martin ii 503 
 
 V. M'Mastere ii 699 
 
 V. M'Neel i 218 
 
 V. Patterson .» 1 826 
 
 V. Pink S ii 672 
 
 V. Portland Stage Co ii 366, 371, 378 
 
 V. Potter i 588 
 
 v. Ehodebaugli il 660 
 
 V. Eostain i 388 
 
 V. Suydam i 811 
 
 V. Thaxter 11420,421,434, 464 
 
 T. The State -....ii 998 
 
 V. Van Meter ii 640 
 
 V. Watson ii 406, 429, 432 
 
 V.Young 1462, 712 
 
 Allen's Leasee V. Lyons ii 80 
 
 V. Parish! 315, 11 517, 682, 684, 588, 884 
 
 Allender v. Eiston i 404, 11 370 
 
 AUesbrookT, Eoacb il 611 
 
 Alley V. Deschamps i 698 
 
 Allison V. Kurtz Si ii 667 
 
 V. Matthieu 1 752, 773 
 
 V. Eankin ii 28 
 
 V. Eayner '. 1 811 
 
 T. Eutledge ii 672 
 
 Almgren v. DutilE ii 666 
 
 Allport V. Meek ii 611 
 
 All Saints v. Lovett i 461, 682, 693, 610 
 
 AUston's Lessee v. Saunders i 660, 701 
 
 Alshire V. Hnlse 11370,783, 784 
 
 Alsop V. Goodwin ii 674 
 
 Alston V. Taylor ....i 335, ii 424 
 
 Alston's Ex'rs v. Jones' Heirs i 126 
 
 Altham's Case ii 750, 767 
 
 Alton V. Qilmanton , i 464 
 
 Alvord T. Baker .'. . i 675, 676 
 
 V. Smith i 846 
 
 Alworth V. Kemp ii 368 
 
 American Fur Company v. U. S 1 494, 510 
 
 Amesburjr V Brown 1 608 
 
 Ames V. Middleton i 252, 340 
 
 Amey v. Long ii 814, 833 
 
 Amherst Academy v. Cowls i 477 
 
 I (Ld.) V. Somers(Ld.) ii 142 
 
 Ammidon v. Smith 1174, 96 
 
 Ammonnett v. Harris i 864, ii 53, 675 
 
 Amory v. Fellows ii 872 
 
 Amringe v. Barnett ii 1004 
 
 Amsden v. Manchester i 769, 773 
 
 Anandale v. Harris ii 675 
 
 Anderson V. Bacon il 699 
 
 V. Bradie i 34 
 
 T. Bullock ii 465 
 
 V. Dudley ii 343 
 
 V. Gilbert ii 688 
 
 V. Hawkins i 177 
 
 V. Hutchinson 11 698 
 
 V. Long i 768 
 
 V. May ii 547 
 
 T. Neff 1 38 
 
 V. Pearson ii 692 
 
 T. Eobson il 616, 565 
 
 V. Turner 11 588, 585, 688 
 
 V. Van Alen i 481 
 
 V. Young 1 104, ii 873 
 
 Andrew v. Wrigley 1 687, 691 
 
 Andrews v. Andrews ii 830 
 
 V. Beecher i 481 
 
 V. Chadbourue i 843 
 
 V. Cleveland 1 808 
 
 V. Dobson ii 758, 772 
 
 V. Dnrant ii 366 
 
 V. Herring .■! 482 
 
 V, Herrioft ii 186, 456 
 
 V. Hooper 11 510 
 
 Lessee v. Fleming i 319, 463 
 
 V. Montgomery 11 187, 188, 200 
 
 V. Pledger 1 748 
 
 V. Smith il 114 
 
 V. Solomon., 1 135, 137, 138 
 
 Andrus v. Harman ii 109 
 
 Angel v. Feltou Ii BI7 665 
 
 Angus V. Smith 11 977 
 
 Ankerstein v. Clarke i 866 
 
 Annesley v. Anglesey (Earl of) i 181, 135, 143 
 
 V.Dixon 11139,143, 161 
 
 Anonymous 1 33, ii 868,.869, 873, 950, 957 
 
 Ansley V. Birch...: ii 868 
 
 Anthione v. Colt 1 404, 439, ii 1001 
 
 Anthony V. Lapham i 664 
 
 V. Smith ii 883 
 
 App V, Driesbacb ii 83 
 
 Appleton V. Boyd. .■ i 321, ii 703, 939 
 
 V. Braybrook ii 420 
 
 Apthorpe v. Comstock 1 206, 495 
 
 Arayo V. Currell ii 439 
 
 Arborgast v. Arborgast i 77 
 
 Arcenau v. Jourdan .; ii 674 
 
 Archer v. Sadler 1 660 
 
 V. Williamson il 402 
 
 Arden v. Arden i 684 
 
 Arderry v. Commonwealth , i 391, 395 
 
 Ardesoif V.Bennett ; 1 695 
 
 Arfridaon V. Ladd ii 691 
 
 Argo(The) ii 844 
 
 Armistead's Case i 636 
 
 Armroyd v. Williams ii 171 
 
 Armstrong v. Burrows ii 733, 734 
 
 v. Carson 11 188, 192 
 
 V. Flora i 483 
 
 v. Ganon ii 372 
 
 V. Green i 398 
 
 V. Harshaw ii 198 
 
 V. Hewitt 1 757 
 
 V. Pearce ii 456 
 
 V. Hussey 11 377 
 
 V. Lear ii 77, 86 
 
 V. Masten ii 401 
 
 V. Short 11 266 
 
 Arms V. Middleton, 1252, 340 
 
 Arnold v. Bell 1 327 
 
 V. Bishop of Bath 11 281 
 
 V. Gorr 1789,11398, 477 
 
 V. Eevoult 1 866 
 
 V. Styles ii60, 65 
 
 V. Tourtelott 11198, 367 
 
 Amottv. Eedfern ii 186 
 
 Arraw v. Tyrawly 1 685 
 
 Arrington v. Short ii 266 
 
 Artisan's Bank v. Treadwell ii 361 
 
 Arthur v. Wells 1 419 
 
 Arundel v. M'Collock 11 143 
 
 V.White ii 389 
 
 Arwin's Lessee v. Bisling i 390 
 
 Aaberry v. Calloway ii 664 
 
 V. Macklin i 696 
 
 Aslietal. V. Fatten 134,442, 463 
 
 Ashley V. Pease 1 666 
 
 V.Bates 1 820 
 
 Askew V. Kennedy .-.. ii 405 
 
 "v. Poyas 11 699 
 
 Aslin V. Parker 11 43 
 
 Aepinwall V. Tousey U 406 
 
 Astley V. Tankerville i 611 
 
 Aston v. Aston 1607, 68S 
 
 Atchison v. M'Cullooh ii 211, 606 
 
 Ateville v. Miller 1 ii 628, 651 
 
 Atherton's Case 11930, 942 
 
 Atherton v. Brown ii 667 
 
 y^Pye 1611 
 
 Atkms V. Owen ii 512 
 
 y. Sanger 1 484, 497 
 
 V. Smith ii 86 
 
 Atkinson V. Carter ii 528 
 
 V. Dailey 11 588 
 
 V. Hawdon u 617 
 
 V. Scott U667, 682 
 
 Atlantic Ins. Co. v. Conrad 1 488 
 
 Attleborough v. Middleborough !l 676 
 
 Attorney-General v. Bowman 1 759 
 
 V. Briant 1 168 
 
 V. Bulpit 11 886 
 
 V. Ct. PI. Glass Co il 733, 801 
 
 V. Clagham 11 711 
 
 V. Davison 11 227 
 
 V. Dudley 1 694 
 
 V. Hitchcock 11 903 
 
 V. Le Merchant 11 539, 816 
 
 V. Parnther i 604 
 
 V. Eandall 1 474 
 
 V.Kay : H 385 
 
 V. Elchards 1 694 
 
 V. Slbthorp , 11 768 
 
 Atwater v. Fowler : 1 6S9 
 
TABLE- OI- CASES CITBD. 
 
 ' Ixxxv 
 
 Atw»ter.T. S(;lienck ii 
 
 Atwpfld's Case i 193, 598, 
 
 Atwood V. Norton .'.■.'. il 
 
 v. .Wei ton..... v.. .v.'. 116, 11900, 
 
 V. Whittlesey ii 673, 
 
 Auburn City B^nk y. Lepnard ii 
 
 Andubon V. Ux. Ins. Co.'.'.'. ....ii 
 
 Ault V. Eawson ii 
 
 Anriol v. Smith , 11 
 
 Austin T. Bostwick .1 
 
 v. Craven 1 
 
 V.Hall i 
 
 v. Meigs 1 
 
 V. Kodman 11 
 
 v. Sawyer i 330, ii 
 
 V. Slade's Administrators 11 
 
 V. Snow's Lessee ii 
 
 V. State 11 
 
 V. Walsh i 
 
 V. Whltlock 11 
 
 Averett v. Thompson i 624, ii 
 
 Averill v. Wilson i 
 
 Avery vi. Bntters ii 
 
 V. Qhappel 1176,639,752, 
 
 V. Fitch -. u 
 
 Ayer v. Hntchjns , 11 
 
 V. SawTer 1 
 
 V. Spring 1 
 
 Ayers v, Covul 11 
 
 V. M'Connell i 
 
 v. Stewart , 11 
 
 Aylifife V. Murray 1 
 
 Aymer v. Astor. ii 
 
 Aynalee v. Eee 1 
 
 Aia V. Etlinger 1 
 
 B. 
 
 Bahb V. Clemson i 198, 206, 827, 494, 11 919 
 
 Babcock V. Beaman ii 692 
 
 V. Booth '. 1 79, 80 
 
 V. Eckler i 608 
 
 V. Thompson i 805 
 
 Bachelder v. Bachelder 11 99 
 
 V. Merriman ii 219 
 
 Bachus V. Fobes il 401 
 
 Bacon V. Brown i 848 
 
 V. Chesney 1 308 
 
 V. Dubarry ii 408 
 
 V. Miller 11 408 
 
 V. Norton il 674 
 
 V. Wllber ii 402, 404, 411 
 
 Badger v. Jones 11 654 
 
 V, Tltcomb 11120, 124 
 
 Badkin V. Powell ii 162 
 
 Badlam v. Tucker 11 650 
 
 Bagley v. Clement Ii 812, 813 
 
 V. Francis ■.- .11 438 
 
 y. Wallace 1 701 
 
 . V. Onehton i 611 
 
 V. WiUiams 1121, 82, 119 
 
 Bailey V. Adaius 1 702 
 
 V. Clay 1 696 
 
 V. Clayton 1801, 332 
 
 V. Corporation of Leominster i 698 
 
 V. Culverwell '. i 609 
 
 V. Delaplaine ii 137 
 
 V. Jalrplay i 857, 11 11, 48 
 
 V.Foster 11 674 
 
 V. Herkes il 706 
 
 V.Jackson 1673, 678, 682 
 
 V. Johnson , U 515, 696 
 
 V. Leohmore ii 401 
 
 V. South Car. Ins. Co 11 175 
 
 V. Taylor 1 607, ii 128, 482, 483 
 
 V. Wakeman '. 1 345 
 
 Baillie v. SlbBald 1 702 
 
 Bailor v. Smithers 1 44I, 127 
 
 Bain v. Case li 289 
 
 V. Hunt 11 106 
 
 Balnbridge v. Clay 11 146 
 
 Balnesv. Higglns Ii 668 
 
 Baird v. Blaigrove 11 455, 694 
 
 V. Coc&an 1 134, li 938 
 
 V. Elce 1 428 
 
 BalBCh V Hoff I 378 
 
 Bakely v. Grant i 841 
 
 Bakeman v. Talbott 1 651 
 
 Baker v. Arnold 1 119, 142, li 976 
 
 V. Blount il 494, 496 
 
 V. Briggs ■ .' 1 308, 501 
 
 Bakerv. Commonwealth ■ '. i 59 
 
 V. Deliessellne jl 369 
 
 V. Dewey •' • "• ii 656 
 
 y. Field 11421, 427 
 
 y.Griffin... .'..; ....i 182 
 
 V. JeweU ; : 1 852 
 
 v.Le Grand...' ...i 696 
 
 V. Lovett ii 407 
 
 V. Matlack ii 673 
 
 y . McDuffle • 11 888 
 
 V. Newbegln .3. . . .1 868 
 
 V. Page 11 396 
 
 y. Preston 11 8,569, 688 
 
 V. Sanderson 1 ,121 
 
 V. Seekrlght ......ii 783 
 
 y. Stackpole i 499 
 
 V. Whiteside 11 693 
 
 Baldwin V. Brdwn ii 785 
 
 v; Calkins 1656, 657 
 
 y.Hale 11 387,420, 431 
 
 V. Hazzleton 1 870 
 
 V. Munn i 855 
 
 V.Norton i 608 
 
 y. Prouty 1394, 395 
 
 V. Stebbms 1 868 
 
 V. West ii 873 
 
 etal. y.Hale 11 420 
 
 Balesv. Proctor i 683 
 
 Balfour y. Chew 1177, 420 
 
 Ballv. Mannin : 11 1003 
 
 V. Storie 11 699 
 
 y. Taylor 1610,11 456 
 
 Ball's Case 1638, 740 
 
 Lessee y. Ball 1748,1161, 68 
 
 Ballard v. Dyson 1 660 
 
 y. 'Walker 1698, 11 695 
 
 Ballenger y. Barnes '. 1398, 400 
 
 Ballowv. Talbot 11 691 
 
 Balsfon v. Bensted 1 666 
 
 Bancroft y. Parker 11 654 
 
 Banert's Lessee y. Day 1 249 
 
 Bangherv. Dupheme 1 98 
 
 Bango, Eeceiver v. M'Intosh 11 400 
 
 Bangs V. Snow ii 143, 717 
 
 Bank v.j|4mer. Tr. Society 11 115 
 
 v.Torter 11 260 
 
 of Alexandria V. Swan 11 649 
 
 Auburn V. Weed 1 746 
 
 Chilicothev. Dodge i 6^, 11 488 
 
 Columbia V. Hagner i 696 
 
 v. Magruder ..... 1 102, 11 649, 728 
 
 Commerce v. Union Bank 1 469 
 
 Commonwealth y. Hopkins 11 34 
 
 Cumberland y. Bugbee 11 467 
 
 England v. Anderson ii 801 
 
 Genesee v. Patchin Bank 1 698, 11 273, 457, 691 
 
 Geneva v. Hewlett li 649 
 
 Havana y. Magee i 825 
 
 Kentucky v. Haggin ii 583, 588 
 
 V. Pursley 1 586 
 
 v. Sheir ii 962 
 
 y. Vance's Adm'r ii 575 
 
 y. Williams 1493 
 
 Middletown v. Huntington ii 199 
 
 Monroe y. Culver 1 336, 361, 449 
 
 V. Field 1 484 
 
 Montgomery v. Walker 1 124 
 
 N. America y. Embury ii 678 
 
 . y. M'Can 11195 
 
 v. Wheeler 11 186 
 
 v. Wycoff 1 99 
 
 Niagara y. Austin 11 812 
 
 , Pennsylvania v. Hadleman 11608, 614 
 
 V. M'Calmont 1126 
 
 v. Union B'k N. T.li 218, 850 
 
 Eochester V. Gould _..il 649 
 
 y. Gray 1 619, ii 253, li 456 
 
 Eomey. Village of Eome ii seT 
 
 S. Carolina v. Gray i 350 
 
 y. Humphreys ii 276 
 
 St. Albans v. Knickerbacker U 869 
 
 ' Tennessee y. Cowan 1 301 
 
 Toledo V. International Bank. . . 1 698 
 
 : U. S. v. Danrldge 1516,604, ii 662 
 
 T-D.™n ii 670 
 
 -'•fi".;:- .-...11516 
 
 ^■°™ita 11 1009 
 
 V. White 11254 
 
 Utica y. Davidson " ii 549 
 
 y.HllIard u 316,'333, 863 
 
 y.Mersereau 1 134 139 
 
Ixxxyi 
 
 TABLE OF CAS;ES CITED. 
 
 Bank of Utica r, PhiUipB ii 549 
 
 V. Sttedes :: 1811, ii 273 
 
 v.'Smitti-.....: ' ii 788 
 
 v.'Wag&'; ;;:■. 11730 
 
 VetgiianeBV. 'Warren:... ■.-.I i 598 
 
 ■ • ■Waaington t; Triplettr ; : . '. ii 728 
 
 Woodstoekv. Clark etal- 1 201! 
 
 " " Pf OSeentlonB (Case of);;; 11 604 
 
 Banks V. Amsr.' Tr.' SDOiety,' . . . ; 11 115 
 
 Banks ads. v.Hatton.. •.■....;;.; i 192 
 
 V. Olegg...* -"-". 1 104 
 
 V. Judat i687, 688 
 
 Banick T. Austin •.■...■..■;.. 1 491; 
 
 Bannerv. Gregg 1 61' 
 
 BaptlBte V. Volubrau 1 192 
 
 Baptist Ch. V. Brooklyn Fire Ins. Co 11 709, 755 
 
 ;Batljery. Barber 1 701 
 
 v; Brace 11 653, 668, 726, 727, 728, 793 
 
 . V. Hartford Bank ii 125 
 
 V. Eoot '..1196 179 
 
 V. WinBlow ....11168,199, 261 
 
 Barbourv. Watts ..jt 11 420 
 
 v.Whitlock i 698 
 
 Barclay v. HoweU's LcBsee. . . ; .1 611, 512, 11 782, 788 
 
 Barclay's AfiBlajiee v. Carson.. i 852 
 
 Barden V. McKinne ........; 11 375 
 
 Barfield V. Hewlett ......11 493, 496, 500, '614 
 
 Bargerv. Caldwell 11,727 
 
 v.MlUer 11478, 584,; 587 
 
 BarUeydtv. Adams 1 690 
 
 Barhydtv. Valk...; li 162 
 
 ■Baring v. Fanning 11 7, ,125, 127 
 
 ■ v.Eeeder 187, 124 
 
 V. SUlppen 124, 124, ii 650 
 
 Barker v. Blnlnger .1 216 
 
 V. Brlggs 1 829 
 
 V. Cassidy 11 260 
 
 V.Clark ...i 193, 651 
 
 T.Hall..... ii 549 
 
 V. Keate 1 610 
 
 V. lees 11 406 
 
 V. M'Clnre ii 387 
 
 V.Miller 11155, 364 
 
 v. N.Y.C.E. E. Co ii 981 
 
 V.Prentiss 1122,11 669 
 
 v.Eay i 301? 348, 351 
 
 v. Elcbardson 1 649 
 
 Bxparte 1183, 90 
 
 Barkittv. Blanchard 1 809 
 
 Barkley V. Barkley 11645, 719 
 
 Barkman v. Hopkins 11 428 
 
 Barksdale V. Brown 11728, 729 
 
 Barlow V. Dupny 11361, 378 
 
 V. Heneage 11 663 
 
 V. Read i 378 
 
 V. Tood 11 24 
 
 Barnard v. Darling .11 693 
 
 V. Edwards; i 664, 695 
 
 BameB, Ex parte li 313 
 
 V.Allen i 419 
 
 V. Comack 1 78, 89 
 
 V. Harris.. 1138,11 158 
 
 V. Mawsou 1220, 225 
 
 V. Mobley 1 188 
 
 V. Perine 11 676 
 
 V. Trompowsky ; 11 460 
 
 V. Winkler. 11107, 119 
 
 Ex'r of Kay V.Kelly 1 419 
 
 Baruet v. Emerson; 1 682 
 
 V. Gilson ..., 11 402 
 
 V. State..... 11 813 
 
 V. Wlilto 11 366 
 
 Bamett V. Bamett . — 11 576 
 
 V.Day 11211, 845 
 
 Barney V. Dewey 1 816, li 
 
 V. Keith i 747 
 
 V. Patterson's Lessee.. 11 63,64,109,128, 186 
 
 BavEhnrst v. Telvorton 11 14 
 
 Barnum v. Bamnm i 570, 741, 11 606, 674 
 
 V. SbieldB ii 657 
 
 Baron v. Abeel , 11 42 
 
 Barough v. Whlto .1 328, 330, 331, 832 
 
 Barrv. Gratz 1 259, il 53, 128, 478 
 
 Barret v. Copland i 621 
 
 Barrett v. Barrett li 87, 698 
 
 V. Bnxton 11 674, 687 
 
 V. Deere i 616 
 
 V. Frenoli 1 321 
 
 V. Eoed i 218 
 
 V. Eogers 1 463, 11 063, 727 
 
 .Tazewell 111004 
 
 Barrett v. Thorndlke 11 483, 617 
 
 V. WrigM: I16S9 
 
 Barrey V. Weefies.. 11 367 
 
 Barrick v. Austin .1 491 
 
 Barringer V. fineed 11 666, 668 
 
 &rrlBgton v; Bank of Wasblngton 11 483 
 
 V. O'Brien i 683, 690 
 
 Baron t. Baltimore ; . .1 i664 
 
 V. Martin , . , , 1 679, 681 
 
 Barrow V. Blspbam ■. 1 483 
 
 ' V. Humphreys 11 834 
 
 Barrows V.' Lane ...-. ■. 11 6*^0 
 
 Barry V. Foyles i 509, 513 
 
 v. Louisiana Ins. Co. 1 178 
 
 V. Morse . ; li 670 
 
 V. State ii 260 
 
 V. Wilboume 11 460 
 
 Barry's Lessee v.- Bhea 11 254, 345 
 
 Barrymore V. Jay ii 660 
 
 Barstow v. Fossett 1 852 
 
 Bartholemy V. People 1 18 
 
 Bartlett v. Delprat i 322 
 
 T.Evarts i T36 
 
 V. Gale ii 69,' 70, 257 
 
 V. Glllard 11 70 
 
 V. Judd •. 11709, 785 
 
 V. Knight ii 188, 197,198, 200 
 
 V. Pickersglll 11 702 
 
 V. Williams li 641 
 
 Hartley v. Elotmeyer i 760 
 
 Barton v. Commonwealth ii 344 
 
 V. Eeith .... 11 460 
 
 v.Morphes 11952,957 
 
 v.-Morris. .- .- ii 61 
 
 ■Bartow's Cases. .. .■ 1 77o 
 
 Barwise v. Eussell 1 786 
 
 BAs etal. V. Steele li 334 
 
 Basket v. Pierce, 1 686 
 
 Baspole'B Ca^e , ii 400 
 
 'BasSv. Cllve 1 460 
 
 V. Williams .-. 1 682 
 
 Bassett v. Marshall 1 583 
 
 Bassler v. Niesley i 315, 11 996 
 
 Batchelder v. Batchelder 11 98 
 
 v. Sanborn i 343 
 
 Batohelor v. Honeywood 11 600, 607 
 
 Bate V. Hill 1 180, ii 946 
 
 V. Kinsey ....■ 1131, ii 897 
 
 V. Lewis^ Ex'rs 11 131 
 
 V; Eussell i 30. 46 
 
 Bateman V. Murray i 698 
 
 V. WiUoe li 29 
 
 Bates V. Bagley ii 108 
 
 V. Barber;. ii 958 
 
 V. Bower; 11 644 
 
 V. Coukling. ; ; i 85 
 
 V. Delavan ii 66, 66, 198, 379 
 
 V. Jenkins ii 109 
 
 v. Loomis i 786 
 
 V. McGully ii 444 
 
 V. New York Ins. Co i 481 
 
 V. Quattlebom ii 25 
 
 V; Stanton ; ii 19 
 
 Vi Thompson ii 149 
 
 V. Todd's Heirs i 698 
 
 V. Watkyhs l 80S 
 
 Bateson v. Green .-.■. i 663 
 
 V. Hartsink u 897 
 
 Batterman v. Pierce a 121 
 
 Battey v. Button [[a 30 
 
 Batthews v. Galindo .' " .' ,i 82 
 
 Battin'B Lessee v. Bigelow 1 640, 823 
 
 Battnrs v. Sellers 1 437 
 
 Binduo's Syndics v. Nicholson 11 171 
 
 Bauerman v. Eadenius i 4so 
 
 v.Baugh iiea, 188 
 
 V. Brassileld ii 612 
 
 v.Eamsey !'ii 698 
 
 Bauni V. Clause i 24 
 
 Baumauv. N. Y. C. E. E. Co '.'"ii 115 
 
 Bauvais v. Wall li 669 
 
 Bavington v. Clarke a 80 
 
 Baxter v. Marine Ins. Co ii 172 
 
 V. Moore ....11 211 
 
 V. New England Market lue. Co li 174 
 
 V. Portsmouth (Earl of ) ii 674 
 
 Bay V. Freazor i jgg 
 
 V-Gnn" '.'.i 828 
 
 V. Law 1 74S 
 
 Bayard V.Malcolm. 11667,1000 
 
 Bayam's Lessee v. Colefax j 60S 
 
TABLE OF CASES CITED. 
 
 Ixxxvii 
 
 Bayer y, Worris ii 600 
 
 Bayleyy. Bates ii 868 
 
 V. Beaumont ii 813 
 
 V. Corporation of Leominster 1 698 
 
 V. Greenleaf i 684 
 
 V. Sneliiam 11 723 
 
 Baylies v. Pettyplace i 847 
 
 Baylia Y- Attorney-General 11 773 
 
 Baylor v. Smlthers .....: 1 395, 508, ii 975, 976 
 
 T. Smither's Heirs 1 137 
 
 Bayne v. Gaylord 11 404 
 
 Baynhamv. Guy's Hospital U 803 
 
 Bayton V. Towles 11666, 678 
 
 Beach v. Abliottt 11 145 
 
 v.Catlin 1178, 321 
 
 V. Fnrman U 153 
 
 V. Mills 1371, 379 
 
 T. Swift I 89, 190 
 
 ■T. Wise 1305, 332 
 
 Beaclicrbtt V. Beachoroft ii 723 
 
 Beake'B Ex'r T. Blrdsall 1789, 11 983 
 
 Beal V. Barclay et al. i 201, 332 
 
 V. BecK. 1 308 
 
 V. Fiiicli. 141,44,64, 98 
 
 T. TBatclier 1751,773 
 
 Beale v. Thompson. 11 844 
 
 Beale's Ex'rs t. Cdmmonwealtli, use of Smed- 
 
 ley •. ii 470 
 
 Bealey v. Shaw. . ." 1 650, 653, 654, 657 
 
 Beallv. Beck i3084i 133 
 
 T.NicltolB 11899,910, 911 
 
 Beajl's Lessee v. Lynn i 667, 668, 669 
 
 Bealle's Adih'r v. SChoaVs Ex'r 11 576 
 
 Bealley T. Barclay .ii 552 
 
 Beals V. Benjamitt 1 851 
 
 V. Guernsey i 390, 393, 402, 454, 11 366 
 
 V. Terry ' 11 730,, 787 
 
 Beaman v. Cnshman i 302, 354 
 
 Beamon v. EIHce 1 441, 516, U 886, 924 
 
 Bean v. Bean. 1 11i6, 127 
 
 v.B'amam 11402, 403 
 
 V. Parker .- 11 369, 370 
 
 V. Quimby 1 138 
 
 V.Smith 11 96 
 
 Bean's Ex'r y. Jenkins. 1 104 
 
 Bearce y. Barstow. 11 682 
 
 Beard y. Bijeanx 1 587 
 
 y. Griggs ■. 1 687 
 
 Beard's Ex'r y. Cowman's Ex'r 1 29 
 
 Lessee y. Talbot. . : i 226 
 
 Beardsall y. Maynard 1 749 
 
 Beardslee y. French i 660 
 
 y. Neal 1 34, 
 
 Beardsley y. Foot 1 18. 
 
 I y. Wright- 11456, 457' 
 
 Bearfleldy. Beattie ,.li 783 
 
 v. Stevens. 1 687 
 
 Bearss v. Copley; ,..'. 1406,419, 785 
 
 Beattlev. Qua i 386 
 
 V. Robin....... U 377 
 
 Vi Tubbs' Adm'i , ii 1004 
 
 Beauchamp y. Cash : . .i 714 
 
 V. Mudd Ii 274 
 
 V. Parry 1328, 331 
 
 Beaugenon V. Turcotte 11 108 
 
 Beanfieuv. Cardigan 1 695 
 
 Beaumont v. Bomtbee, i 692 
 
 V. Fen... 11 752, 763i 769 
 
 y,Field U 751 
 
 V. Mountain 11 340- 
 
 Beck Vi Cole.. .> ....1 644 
 
 Becker v. Vrooman ii 672 
 
 Vi Lomont ...11 691 
 
 Beckfordv. Close.. 1 702 
 
 y. Wade 1 685,. 686 
 
 Beckley v. Ceva .: 1870 
 
 V, Mnnson,.. 11 633 
 
 Beckwith v. Benner. .„ i 131, 11 522 
 
 V. Marryman.-.., 11 62 
 
 V. Union Bank,.. 1 485 
 
 Beoqnet v. McCarthy -.%%. Ii 185 
 
 Beddovi Smith. , ..11 922 
 
 BedeU v. BusseU 1 818 
 
 y. The Com.. Ins. -Co., .1 405 
 
 Bedell'&Adm'rs v.Keethley .-.-.■..■.■, ..11 134 
 
 Bedlngton y,- SouthftU 1 gl4 
 
 Bedle v. Beard ... .•.-....■...•.• ■ 1 651 
 
 Beebe v. Bull ■.■ .11 lit 
 
 v. Tinker I ..11 982 
 
 Beech v. Abbott 11900,-203 
 
 Beecher v. Chester ; i 869 
 
 Beechei v. DesnnistOii J 78o 
 
 Beelonanv. Bemus 1 ''12 
 
 V. BighJEMi 11101, 474 
 
 y. Biigham 1 474 
 
 V. Frost..... -.-.;; U 661 
 
 Beekman's BS'rs v. Beekmaii*B Ex'rs. . . .1671,11 568 
 
 Beeler's Heirs V. BUlUtfS Heirs ..i 814 
 
 Beers v. Botsford i 584; 870 
 
 v. Broome 1 36, 461, 11 652 
 
 y. HaWley ....; 1320, 462 
 
 y. Pinney ii 132 
 
 Beeson V. Hutehlusfln :: iiSOl, 645 
 
 BelBsen v. ShoU .1 664 
 
 Beltz V. Fuller 1 601 
 
 Belch V. Harvey 1 679, 680 
 
 v.Holloman ...H 27 
 
 Belden v. Davis ii 67,-687, 976 
 
 V. Seymour 11 183, 656, 658 
 
 Belknap V. Belknap i 654 
 
 y. Trimble -...1656, 657 
 
 Bell V. AUei's Adm'r i 863 
 
 y. AnSley 1 'i'90 
 
 v.Beemai 1689, 690 
 
 v.COIl 1 89 
 
 v. CominOhwealth 1 603 
 
 v. Cbgw'ell ; 11 490, 506 
 
 y. Davidson 1410, li 845 
 
 y. Halford H 'i'44 
 
 V.Howard i 698' 
 
 V Keely 1 384, 689 
 
 V. McLean 1378.381 
 
 y. Morrison 1 55, 64, 491, 11 844 
 
 v. Morse. 11 645, 735 
 
 y. Nimmon li 212. 
 
 v. Norwood 11 608* 614 
 
 y.Perkins 1849, 360 
 
 V. Eeedetal i 833 
 
 y.Strother •••! 803 
 
 Bell's CaBE.... 1543, 76t, 11 959' 
 
 Bellamyv. Calms H 492 
 
 ;BelJas y. Levan u 301, 
 
 Bellfontalne &c. R. E. Co. v. Bailey ..i W 
 
 Belllhgery. Crague n 121- 
 
 , V. People 11-220,- 336; 454, 930, 976, 978 
 
 Bellowsy. Ingham .U 198 
 
 Belmont v. O'Brien .i 679 
 
 BelOte Ex'rs V. Wynne i 491 
 
 Beltzhooyer v. Blackstock i 132 
 
 V. Commonwealth '. 11 134 
 
 Beman v. Ingroot U 340 
 
 Ben y. Peete 1 32, n 560 
 
 Ben's Guardian. il 188 
 
 Bena-way v. Sayne ij 857 
 
 Benbowv. Townsend . . . . . . u "01 
 
 Bend v. Susqnehamiah Bridge, &c. Co • ii 648 
 
 Bender v. Fi'omberger ill S 
 
 V.Graham-.. li 130 
 
 v. Manning i 849 
 
 Benedict -r. -Lynch-. ; . . : 1 696, 698, ii 668 
 
 Benedict's-Adm'rs-y. Nichols 1 408, 432 
 
 Benhamy. Gary 1736, 773 
 
 v. New..... ...1 830 
 
 Benjamin v. Armstrong-. li 1000 
 
 y.<!oyentry;. 139,34, 133 
 
 V. Garee-. ; ; . ; . li 516 
 
 V. Hathaway li 930, 938 
 
 V. Slnolairi..... li 663 
 
 y. Smith.. ...... ...1484, 493, 508, 519,, 521 
 
 Benn V. Borst ; .if 392 
 
 Bennett v. Burch..... i ^^O, 474 
 
 V. City of N. T. .n 131 
 
 V. Clough. i 006 
 
 V. Fuller H 368 
 
 y.H#lsey.. ,. '■ "825 
 
 V. Hardaway ii 1002 
 
 V. Hethington '■•■■■ iSo 
 
 V. Holmes ..-....- n 388 
 
 V.Howard i ^43 
 
 y. Hubbard h 066 
 
 y.HuU 11 33 
 
 V, Judson i 825, 188 
 
 V. Pierce- ii TBI 
 
 V. Eobtason's Adm'r. ,. .11 460, 468, 480, 491, 
 
 600 
 
 V. Rnnyon .11 480 
 
 V. Smith 1182 
 
 The il WS 
 
 Ex parte 1 692 
 
 Bennock y..Whlpple„ al 740 
 
 Benson- v. BoUes 1 605 
 
 V. Brown i 806 
 
Ixxxviii 
 
 TABLE OF CASES CITED, 
 
 Benson v. Matsdorf il 42 
 
 T. Eice il TO 
 
 T. Schneider ii 813 
 
 V. Smith ii 696 
 
 Bent V.Baker 1 123 
 
 T. Wheeler i 654, 666 
 
 Bent's Ex'r v. Graves ii 119 
 
 Bentley v. Cooke i 88 
 
 V. Columbia Ins. Co 1 466 
 
 V. Morse ii 31, 113 
 
 Benton v. Burgot il 186, 188 
 
 V. Duffy il 82 
 
 Bentzing v. Scott.. ; 1 871 
 
 Benzieii v. Lenoir ;...:.:; 1 686 
 
 Bergen v. Bennett '. . . .1 6B3, 666, 666, 692, 693 
 
 Berger V. Collins ..:....;... : i 373 
 
 Berkle v; Shertnan 11 79 
 
 Berkley v. Paine i 822 
 
 Berks, Ac. v. Hendel 11 337 
 
 Berkshire W. Co. v. Proctor .... .' ....11 789 
 
 Berluchaux v. BetluchaTix 11 430 
 
 Berley V.Taylor iilOOS 
 
 Bermon V. 'WOodteiage 11 892 
 
 Bernard v. Commonwealth .1 308, 345, 785 
 
 V. Elournoy i 463 
 
 v; Sampson, Ii 693 
 
 V. Torrance ;.. 1 389 
 
 Bernard V. 'Vlgnaud ii81, 126, 146 
 
 Bernascdni v. Anderson. 1 433 
 
 V. Argyle (Duke of ) 1841j 856 
 
 Bemham's Adin'r V. Adams i 384 
 
 Berry v. Berry's Heirs.. ii 65 
 
 V. Greenfield .. '... ii 106 
 
 v. WariUg 1178,202,351, 586 
 
 Berrymah V. WiSe i 592 
 
 Bertinev. Varian '..1688, 690, 691 
 
 Bertsch v. Lehigh Coal and Nav. Co 11 666, 721 
 
 Besore V. Potter 11650,699, 791 
 
 Best V. Osborne ii 521 
 
 V. Stow il 699 
 
 V. Strong 1746, 812 
 
 Bethumv. Turner 1652, 668 
 
 Betts V. Badger li 487 
 
 V. Bagley ii 136, 144, 161, 261, 423 
 
 V. Davenport i 318 
 
 V. Death 11186,188, 198 
 
 V. Jackson li 554 
 
 V. Jackson, d. Brown 132, 316 
 
 V. Lockwood 1 764 
 
 V. Starr ii 18, 39, 42 
 
 V. Union Bank of Maryland. . . .11 666, 657, 690 
 
 Bevan V. Waters i 146 
 
 Bhetwind V. Marnell , 11 330 
 
 Bholenv. Cleveland : 1 482 
 
 Bibb V. Picket i 473 
 
 V.Smith : ii 68 
 
 Bibbins v. Noxon ... 1 869 
 
 Bickfordv. Daniels 11 661 
 
 Bickley v. Commonwealth ; ii 835 
 
 Bicknellv. Gough i 691 
 
 Bidden v. Dowse il 414 
 
 Biddis v. James '.'.'. 11341, 432 
 
 Biddle V. Wilkins 1186, 89 
 
 Biddle's Lessee v. Shippen ii 301 
 
 Biden V. Loveday .'... . 1667 
 
 Bidlake V. Arundel . 1684 
 
 Bidwell V. North W. Ins. Co 11709, 721 
 
 Bierne V. Erskine .... L'.. ii 699 
 
 Bigelowv. Grannis . . i 823 
 
 V.Johnston ...; ;;:..; i b72 
 
 v.Newell „......' . 1654 
 
 V. Sanders 1409, 410 
 
 V. Stearns 11 139, 14S, 147, 162, 168, 161 
 
 Bigg V. Roberts .1683 
 
 Bigger's Adm'r v. Alderson i 463, 665 
 
 Biggs V. Lawrence.., . 11 684 
 
 _., V. M'llvaine's Ex'r .....iilOOS 
 
 ™!f«T. Holmes 18, 182 
 
 BiU V. Fourth W. Turn. Co i 746 
 
 V.Scott 1 83 
 
 BilingBly V. Knight 1 137 
 
 Bilson V. Saunders i 699 
 
 Bingham V. Cabbot 1 191 
 
 Blnney v. Merchant i 40 
 
 Tnvi,a„i ^- ^op"-. &<;■> of Huii.'".'.!:.;:::;;.'.".i sis 
 
 Birbeck V. Burrows 1404,588,11 34 
 
 nwr.y, „ ■^v,'^''"'^?' 1 497, ii 285, 620, 623 
 
 Birch V. Alexander ..1660 663 701 
 
 Ri,^ ^-Pepeyster 11 769 
 
 iiira V. Appleton . ii 175 
 
 V. m-p9nt ........".'.".'.'."■■.'.'.■.■■.".■.■■".'.1 862 
 
 Bird V. EandaU n 
 
 V. Kouse 11 813 
 
 Birkhead V. Brovm ...ii 19 
 
 Birtv. Barlow 1631,11279 
 
 Bishop V. Chambre 1 607 
 
 V. Cone 1606,11 297 
 
 V.Ely i 863 
 
 V. Morgan ....i 866 
 
 V. Tucker....... 1892, 394 
 
 of Cloyne v. Young -• il 752 
 
 of Winchester v. I'ourner 1 183 
 
 Bisling V. Graham i 86 
 
 Bissellv. Briggs ii 186, 198, 339 
 
 V. Cornell U 883 
 
 V.Drake 1580, 860 
 
 V.Edwards 11189, 422 
 
 V. L*vln's Heirs 11 614 
 
 V. Kip ....; ; 1 865 
 
 V. Marshall U 997 
 
 V. N. T. C. B. E. Co ii 786 
 
 V. Pearce U 254 
 
 Blven V. McElroy 1 422 
 
 Blxby V. Franklin Ins. Co 11286, 287 
 
 V.Whitney .■ ii 24 
 
 Black V. Braybrook li 386 
 
 V. Crouch ii 938 
 
 V. Bay 11 526 
 
 V. Shooler '. 1 375 
 
 Blackbm-n V. Scholes v .'.... ...1 790 
 
 V. Squib 1676, 677 
 
 Blackeney V. Ferguson .^ 1 493 
 
 Blackett v. EoyalBxch. Ins. Co ii'728, 731, 787 
 
 v.WaU ..1677, 682 
 
 Blackham's'CaBe .:-: 11 13 
 
 Blackley v. Sheldon 11 166, 364 
 
 Blacklock v. Stewart -11 174 
 
 Black Elver and U. E. E. Co. v. Clark i 682 
 
 Blackstock V. Leidy 1104, 492 
 
 Blaokwell v. Bull ... , u 723 
 
 Blade, v. Noland. I 603, 639, ii 617 
 
 Bladen's Lessee V. Cockey 1 222 
 
 Blagg V. The Phcenis: Ins. Co 1 124, ii 866 
 
 Blair v.Hnnn i 620 
 
 V. Miller 1 478 
 
 V. Seaver ..: ii 953 
 
 V. Valllant ii 587 
 
 Blakev. Dougherty; ii 720 
 
 V.Foster i 680 
 
 V.Hall ii 386 
 
 V. Pelfleld ; 1133, 165 
 
 V. Eay ii 526 
 
 Blake's Case ii 693 
 
 ■ Ex'rs V. Quash'sEx'rs.. i 502, 677 
 
 Blakely V. Grant i 841 
 
 Blakeney V. Ferguson i 492 
 
 Blanchard V. Goss ii 129 
 
 V. Hilliard ii 728, 730 
 
 V.Kenton ...i> 11648, 698 
 
 V. Noyes ' i 675 
 
 ^, , , V.Eichley ii 395, 812 
 
 Bland V. Moseley . . i 649 
 
 V. Swafford ii 834 
 
 Blandy v. Widmore . . ii 704 
 
 Blankley V. Winstanley 11 802 
 
 Blannernasset V. Day a.i 690 
 
 Blanque V. Peytavin ". . 11172 
 
 Blanton v. Miller 1 33, ii 518 
 
 Blasdale V. Babcock , 1816, ii 9 
 
 Blatch V. Archer i 615 
 
 Bleecker v^Bond .■.■..■.■.■.'..■.." .".".■.'li' 266, 801 
 
 g^Jghj-.W^ellesley ii 664 
 
 Bleightv. M'Bvoy ii 61 
 
 Blesdoe y. Conunonwealth ii 860 
 
 Bhght V. Ashley { 407, 509, 611, 11 638 
 
 v.Fishor , ii 821 
 
 Blight's. Heirs v. Banks 1 685, ii 72, 574, 584 
 
 Lessee v. Atwell , ii 514 
 
 v.Eochester 1666 
 
 Blin v. Campbell 1120,143, ISO 
 
 V. Trimble , ii 404 
 
 Bliss, JIatter of 11187 
 
 V.Bali ', ,,,, 1 814 
 
 V. Branham il 739 
 
 V. Cutter i 616 
 
 V.Negus ii 674 
 
 Blodget &CO.V. Farmer i 785 
 
 V. Jordan 11123, 1S9, 422 
 
 Bloggv.Kent ii 825 
 
 Blood V. Harrington 1587, 589, li 533, 625 
 
 Bloodgood V. Bruen , l 679 
 
 V. OvMBecrs of JitmRicA i 48 
 
TABLE OF CASES CITED. 
 
 Ixxxix 
 
 Bloomer V. Jnbel 1 74S 
 
 V Sherman 11401,408,408 
 
 Bloss T. Kittridge 11 lOOl 
 
 Blossom V. Caanon 1 6i')fi, 11 148 
 
 V. Griffln 11 e66, S03 
 
 Blount V. Darrach 11 4, 20, 74, 81 
 
 V. Starkie's Adm'r 1 675 
 
 Blowers v. Sturtevant 1 518 
 
 Blow V. Mayuard 1 321 
 
 Bloxam v. Blseo 11 512 
 
 Bloxham V. Oldham 11 3fi8 
 
 Blue V. Kibby 11 950 
 
 Blant'a Lessee v. Smith 11 1001 
 
 Blythe v. Sutherland 1223, 224 
 
 Board of Justices, &c., v. Fennlmore 1 43 
 
 Boardman v. De Forest 1 677, 682 
 
 V. Keeler 1 378 
 
 V. Keed 1 222, 391, 11 782, 784 
 
 Boatner v. Henderson 1 655 
 
 Bob T. The State il 1003 
 
 Bockenborough v. Ward's Adm'r r 696 
 
 Bockford v. Close i 679 
 
 Bodge V. Parsons 11 583 
 
 Bodley v. M'Ohord : 11 699 
 
 Boehm v. Great W. K. Co 1 785 
 
 Bogardus v. Clark 11 74, 79 
 
 V. Trinity Church 11 273 
 
 Bogart T. Brown 11 530, 532, 816 
 
 Bogertv. Bogert.. 1 131, 11 907 
 
 V. Caaman 11 665 
 
 V, Hestell 1 697 
 
 V.Morse 1732 
 
 V. Moss 1 810 
 
 Bohannas v. Lewis 11456. 457 
 
 Bohun V.Taylor 1 49 
 
 Boles V. M'AUlater 11 667 
 
 Bold V. Rayner 11728,787 
 
 Botdron v. Wlddowa 1 749 
 
 Bolln V. MilUden 11 219 
 
 Boiling V. Boiling 1 699 
 
 V. The Mayor of Petersburgh 1 661, 747 
 
 Bollinger v. Thurston 1 746 
 
 B Jlman, Ex parte i 567 
 
 Bolten V. Gardner 1 693 
 
 Bolton V. Brewster 1 611 
 
 V. Corporation of Liverpool 1 1.32, 134 
 
 Boltz V. BuUman i 176. 677 
 
 Boman v. Plnnkett li 613 
 
 Bonafous v. Walker 1 826 
 
 Bond V. Brown 1 687 
 
 V. Dimes il 209 
 
 V.Haas 11667 
 
 V. Hopkins i 688 
 
 V. Lathrop 1 491 
 
 V. Seawell 1 610 
 
 V.Ward 118, 9 
 
 Bond's Lessee V. JECunter 11 865 
 
 Bone V. Hillen ...1646 11 861 
 
 Bonesteel v. Flack ii 672 
 
 V. Lynde ; li 815 
 
 Bonner v. McPhail i ,S35 
 
 Bonnet's Lessee v. Davebaugh 1 224, 568, 11 676 
 
 Bonney v. Bidgard 1 687, 691 
 
 V. Seely 1806 
 
 Bonningtonv. Walthall 1 683 
 
 Bonser v. Curtlss 1 54 
 
 Bookerv.Bell ii 8, 128 
 
 V.Bowles 11496,503 
 
 V. Lastrappes 11 6'(4 
 
 Boomer V. Lane 11 119, 369, 393 
 
 Boon V Dyke's Legatees i 569, ii 611, 515 
 
 Boorman v. Johnson li 132, 666, 726, 787, 793 
 
 Bootle V. Bluodell 11763 
 
 Booth y. Booth i 605 
 
 V. Bunce 1 4(i5 
 
 V. Grove 1 868 
 
 V. Smith ii 813 
 
 V. Swezey 1 .332 
 
 V. Warrington (Earl of) ii 687 
 
 Borden v. Borden ii 86, 8S 
 
 V. Fitch, 11 20, 91, 95, 96, 180, 187, 188, 197, 339 
 
 Bordereau V. Montgomery.. 11210 
 
 Borland v. Stewart ii 165 
 
 Borst V. Corey 1 6S4 
 
 V. Bmpie 11 261, 591 
 
 V. Griffln 1 872 
 
 Borwell et al. v. Blackman 1 491 
 
 Bosanquet v. Dashwood 11 682 
 
 Bosley V. Farquar il 268 
 
 Bostlck's Case ii HI 
 
 Boston V. Boylston 11 86 
 
 Boston Hat Co. v. Messinger.l 308, 442, 462, 497, 783 
 and Worcester E. B. Co. v. Dana . .1 445, 466 
 
 Bostwlck V. Lewis .'4 49, 495 
 
 V. Munger • ii 868 
 
 Boswell et al. v. Blackman 1 492, 11 958 
 
 Bosworth V. Bryan " 1 578 
 
 Bothomley V. Usbome 1131, 11 897 
 
 Botifeurs v. Weyman 1 690 
 
 Bott v. Bumell li 368, 371 
 
 Bottings V Pirby 11 123 
 
 Bottsford V. Burr 11 667, 695, 701 
 
 Boudereau v. Montgomery. . .1 222, 249, 269, 391, 392, 
 
 11 610, 846 
 
 Bondinot v. Bradford ii 707 
 
 Boughton, Caee of 1 562 
 
 V. Boughton 11 663 
 
 Boalden v. Hebel i 482 
 
 Bound V. Lathrop i 499, 501 
 
 Bourke v. Granberry ii 173 
 
 Bourne v. Church 11 864 
 
 Bours V. Tuckerman 11 821, 822 
 
 Bousfleld V. Godfrey 11 332 
 
 Boutelle v. Codwln 11 674 
 
 Bovard v. Wallace 1 484 
 
 Bow v. -Parsons 1 18 
 
 Bowditch M. F. Ins. Co. v. Buffum 11 999 
 
 Bowenv.Bell i 477. 685 
 
 V. Douglass il 867 
 
 V. Edwards .* i 681 
 
 V.Hall 11219 
 
 V.Jackson 11729 
 
 V. Newbold i 624 
 
 V. Newell. .1 624, 11 428, 435, 728, 788, 800, 805 
 
 Bowerhan's Case 1 46. 543 
 
 Bower V. Smith 1 38B 
 
 Bowers v. Dunn i 378 
 
 v.Hurd i378, 11 674 
 
 V. Jewell ii 483 
 
 Bowes v. Heape 1 694 
 
 Bowie V O'Neale 1391,398 
 
 Bowles V. Bingham i 254 
 
 V. Johnson il 828 
 
 Bowlinv. Pollock 1 388 
 
 Bowman v. Blttenbender 11 698 
 
 V. Barle 1 804 
 
 v.Earl 18,2, 182 
 
 V.Norton 1131,133 
 
 V. Buss i 822, 11 20, 144 
 
 V. Sanborn 1 212, 214, il 598, 615 
 
 Bowne v. Boston ^. li 651 
 
 V.Douglass 11691 
 
 Boxer V. Babeth 11503 
 
 Boyce V. Foster 11335. 525, 666 
 
 V. Grundy il 699 
 
 V. Walton 1 600 
 
 V. Watson 1498. 600 
 
 Boyd's Appeal 11 95 
 
 Boyd V. Brotherson 11 717 
 
 V. Commonwealth 11 353 
 
 V. Hitchcock 1 475 
 
 V Ladson 1 372 
 
 V. M'Lean li 701, 702 
 
 et al. V. Howard 1 848 
 
 Boydell v. Drummoud ii 741 
 
 Boyden v. Moore 1 191, 789 
 
 Boyer v. Norris 11 600, 503 
 
 Boylev.Boyle 11 48 
 
 V. Coleman 11 630 
 
 V. Lysaght 1 698 
 
 V. Bowand 1 895 
 
 V. Wiseman 11 935 
 
 Boylston V. Boylston i 482 
 
 Boynton V. Eellogg 1 764 
 
 V. Rees i 651, 656, li 610 
 
 V. Willard ii 115, 128, 370, 372 
 
 Brace v. Barclay 1 465 
 
 V. Benson ii 165 
 
 Brackenbury v. Breckenbury 11 685 
 
 Brackettv. Norton il 428, 434 
 
 V. Walt ii 660, 690 
 
 Bracy V. Kibbe » i 759 
 
 Bradbury V. Grinsell 1653 
 
 V. White il 698, 699, 700 
 
 Braddick v. Thompson 11 405 
 
 Bradford v. Boudlnot 11 70 
 
 V, Boylston Fire and Marine Ins. Co.! 751 
 
 V. Bradford 11 22, 42, • 44 
 
 V. Bryan ii 403 
 
 Bradford's Case ^ 1 706 
 
 Bradish V. Schenck tT. i 854 
 
 Bradley V. Anderson.: ' 11 076 
 
 Vox. L 
 
 12a 
 
xc 
 
 TABLE OF CASES CITKI). 
 
 Bradley v. Bentley ii 666, 676 
 
 V. Blodget ii 658, 669 
 
 V. Bradley ii 54, 674 
 
 V. Camp i 852 
 
 v.Fieia....* i 739 
 
 V. Goodyear i 378 
 
 V. James i 344 
 
 V. Eicardo i 714, ii 892, 984 
 
 V. Root i 33 
 
 Bradsey v. Clyaton ii 404 
 
 Bradshaw v. Bennett ii 460, 486 
 
 V. Bradsliaw ii 815 
 
 V. Heath . . .il 91, 97, 180, 188, 190, 195, 198 
 
 Bradetreet v. Clarke ii 63, 136, 480 
 
 T. Huntington 1 314 
 
 Bradt t. Koon i 481 
 
 Bradwin v. Harper ii 769 
 
 Brady v. Hennion ii 783 
 
 Bralie t. Kimball 1 389 
 
 Brainard v. Buck et al i 201 
 
 Braintree V. Hingham i 177j 253 
 
 Braithwaite v. Coleman i 615 
 
 Braman v. Bingham i 679 
 
 V. Howk ii 134 
 
 BramwellT. Lucas i 181 
 
 Brandon v. GoTVing i 143 
 
 V. Grimke i 646 
 
 Brandon's Case i 495 
 
 Brandt, ex d. Walton v. Ogden^ i 220 
 
 Brannan & Smith v. Forbes' Aom'rs i 355 
 
 Brant v. Klein i 145, 157, 496 
 
 BrarnauT. Howk ii 109 
 
 Brashear v. Burton ii 469 
 
 Brashier v. Gratz i 698 
 
 Braughe v. Cradock i 133 
 
 Braxton v. Winslow ii 8 
 
 Braydon v. Goulman ii 879 
 
 Brazill v. Isham i 747, ii 401 
 
 Breardcn v. Searcy's Heirs i 677, 673 
 
 Brearley V. Brearley ii 640 
 
 Breck v. Cole 1 844 
 
 Breckenridge v. Churchill 1 688, 691 
 
 T. Duncan ii 639 
 
 Breckenridges v. Todd •. i 605, 610, ii 588 
 
 Breed v. Pratt .-^ i 785 
 
 Breeding v. Taylor ii 644 
 
 Breedlove v. Turner i 811, 826, ii 126 
 
 Brehmv. The Qt. West, E. E. Co i 633 
 
 Brennan V. People i 113, ii 984 
 
 Brent's Ex'rs v. Metropolis Bank ii 670 
 
 Bret V. Eidgen.« .ii 753 
 
 Breton v. Cope i 676 
 
 Brett V. Beales ii 274, 898, 340 
 
 Brewer V. Palmer 1577 
 
 Brewster v. Brewster i 695 
 
 V. Countryman i 132, 568, 666, 696 
 
 V. Doane 1 136, 361, 414, 449 
 
 V. Hardman i 491 
 
 T. Silence ii 676, 681 
 
 V. Stryker 1452, 464, 470 
 
 Brewton's Ex'rs v. Cannon's Ex'r i 678 
 
 Briant v. Eicke i 871 
 
 Brice v. Smith i 610 
 
 V.Stokes i 700 
 
 Brickhouse v. Hunter 1 448 
 
 Brick's Estate ii 448 
 
 Bridge v. Austin i 847 
 
 V. Eggleton 1 132, 818 
 
 V. EUiston ; ii 686 
 
 V. Ford ii 166 
 
 V. Gray i 491, ii 134 
 
 V. Hubbard ii 674 
 
 V. Payson 1 786 
 
 V. Sumner ii 83 
 
 V. Wellington 1 101 
 
 Bridges v. Hyatt i 68 
 
 V. Mitchell : 1 689, 700 
 
 Brldgettv. Coyney 1 406,11 155 
 
 Bridgman V. Green il 689 
 
 Brier v. Woodbury il 887 
 
 Brlggs V. Dorr i 481, 744 
 
 V. Murdock il 288 
 
 V. Eichmond 11 118 
 
 V. Smith i 166, 11 402 
 
 T. Warden 11 148 
 
 Brigham v. Peters 11 603 
 
 V. Sogers 11 666 
 
 Bright V. Currle ii 87 
 
 Brighton, &£„ B'k v. Philbrlck 11 678 
 
 V.Walker 11 219 
 
 Brill V. Flagler i 785 
 
 Brill V. Lord ii 865 
 
 V. Neele i 786 
 
 Brindle v. M'Hvalne i 321, 322, 482, il 962 
 
 BrinkerhofFv. Dip ii 721 
 
 Brintnall v. Foster ii 33, 34, 109 
 
 Brisbane v. Parsons ii 672 
 
 Brisby v. Shaw i 761, 827 
 
 Bristol V. Wait ii 617 
 
 V. Warner i 412 
 
 Bristoll V. Dan 329, 330 
 
 Bristow V. Le Sequeville ii 436 
 
 V. Wright i 838 
 
 Brittain v. Kinnaird ii 167, 158, 162 
 
 Brittingham v. Stephens i 440, 509, 803, 806 
 
 Brittonv. Cole ii 363 
 
 V. Turner 11117, 121 
 
 V. Williams' Devisees ii 407 
 
 Broadwell V. Stiles ii 516 
 
 Brock V. Sturdivant 11 696 
 
 V. Thompson ii 670 
 
 Brocket V. Foscue i 477, ii 477, 685 
 
 Brockaway V. AUen ii 691 
 
 V. Kinney ii 24 
 
 Brodess v. Thompson > ii 105 
 
 Brodie v. Bickley 11 f6, 88 
 
 V. St. Paul ii 741 
 
 Brody V. Barry i 683 
 
 Broeck v. Livingston i 653 
 
 Brogden v. Walker's Ex'r i 607 
 
 Brogy V. Commonwealth i 394 
 
 Broly V. Taylor i 609 
 
 Bromage V. Eice ii 611 
 
 Bromaghin V. Thorp ii 145 
 
 Bromley v. Smith Ii 168, 392 
 
 Bromster v. Dana ii 1010 
 
 Bronson v. Mann ii S69 
 
 V. Wyman i 773, ii 273 
 
 Matter of ji 831 
 
 Brook V. Thompson ii 649 
 
 Brookbard v. Woodley ii 611 
 
 Brooke v. Milliken ii 160 
 
 V. Thompson il 548 
 
 V. White i 846 
 
 Brooks V.Adams iil49, 166 
 
 V.Bali 1 619 
 
 V.Barrett i 810, 877 
 
 V. BemiSB i 864 
 
 V. Chaplin 11586, 588 
 
 V. Chesley ii 821 
 
 V. Lowrle i 848, 849 
 
 V. Maltbie i 647, 650,666, 667, 658 
 
 V. Marbnry i 609, ii 586, 587 
 
 V. Oriental Ins. Co ii 732 
 
 V. Powers ii 650 
 
 V. Wheelock ii 70O 
 
 V. Wilcox Ii 912 
 
 Brookshire v. Brookshire." 11 813 
 
 Bronner V. Frauenthal i 461 
 
 Brotherson v. Hodges i 854 
 
 Brotherton v. Wright 1 392 
 
 Broughton v. Randall . . .11 435 
 
 Brousaard v. Bernard ii 63, 124 
 
 V. Sudrigue li 762 
 
 Brown v. Abeel 11 42 
 
 V. Adair 11 593 
 
 v. Anderson i 586, ii 503 
 
 V. Austen 164S,ii 661 
 
 V. Babcock 1 121 
 
 V. Beebe 11 676 
 
 V. Belches i 862 
 
 V. Bellows 11 603, 988 
 
 V. Best 1 654 
 
 V. Betts ii 661 
 
 V. Bowen i 466 
 
 V. Brown 84 Barb. 638, ii 647 
 
 V. Brown i 349, 656, ii 647, 930 
 
 V. Cady i{ 392 
 
 V. Campbell 11734, 1001 
 
 V. Carter i 701 
 
 V. Chadsey 1826 
 
 V. Cobb 11 645 
 
 V. Cowoll ii 883 
 
 V. Crowl il 143 
 
 V. Cummlng il 305 
 
 V. Curtlss il 676 
 
 v.DeSeldlng 11 608 
 
 V. Denlson i 805 
 
 V. Feeter 1 744 
 
 V. Galloway 1 664 
 
 V. GetchBll li 821 
 
 V. Gibson 1701,1190,75, 79 
 
TABLE OF CASES CITED. 
 
 BrowuT. Giles ii 880 
 
 V. Gilman i 684, U 716 
 
 r. Gtoodman ii 694 
 
 V. Goodwin ■ 1 855 
 
 V. Gracey ii 429 
 
 V. Hanliersoii 11403, 405 
 
 V. Harmon i 855 
 
 V. Harrison 1 336 
 
 V. Haven ii 698, 719, 720 
 
 V. Howard i 55 
 
 V. Ins. Co. of Penn ii. 173 
 
 V.Jackson ii 729 
 
 V. Keacli 1 502 
 
 V. Kimball ii 492, 493 
 
 V. Langley ii 752 
 
 V. Lanman ii 19, 78, 79 
 
 V. Littlefleld ii B30 
 
 v.Lusk 1186, 216 
 
 V. Lutterloh i 867 
 
 V. Maeller i 329, 333, 527 
 
 V. Marsh 1 127 
 
 V. May i 4 
 
 V. McCune 1 459 
 
 v. M'Donald ii 701 
 
 V. Mclntyre i 826 
 
 V. Mims 1 592 
 
 V.Montgomery i 759 
 
 V.Moore ii 812 
 
 V. Murray 1 817, 11 863, 866, 868 
 
 V. Payson 1131, 132 
 
 V. Saltonstall 11 045, -756 
 
 V. Scofleld ii 373 
 
 V. Selwyn 11 753 
 
 V. Swan ii 103 
 
 v.The LP.Con 1 697 
 
 V. Thomdike 11719,722, 7.38 
 
 V. Union Ins. Co 11 172 
 
 V. Van Deuzer 11 379 
 
 V. Waters ,...11 528 
 
 V. Watts 1 823 
 
 V. Wiiafe ii 47 
 
 V. Williams 1 806 
 
 V.Wood il552, 985 
 
 V. Woodman 11 534, 573 
 
 V. Wright 11 352, 649 
 
 V. Wyncoop ii 62, 108 
 
 Brown's Case 1712 il 362 
 
 Lesaeev. Galloway i 665, ii 846 
 
 Brownell v. Brownell 1 700 
 
 V. Wlnne 1 853 
 
 Browning v. Hanford 11 388, 363 
 
 V. Hnff 1177, 453 
 
 V. M'Manus ii 405 
 
 V.Morris 11683, 685 
 
 Brownrigg v. Downing 1 134 
 
 Broxdale v. Speed 1 6110 
 
 Brahaker V. Poage i 197 
 
 Brace V. Dyall 1 404, 405, u 367 
 
 V. United States 11 390 
 
 Brace's A dm'r v. Smith ii 587, 693 
 
 Bruen v. Hene 1 451 
 
 Bragin v. Charauct i 343 
 
 Bnmi, Matter of 11 137 
 
 Brommell V. Prothero ii 753 
 
 Brammer v. Wilkes. . . . V i 136, 139 
 
 Bronskill v. James ii 850 
 
 Brunswick V. M'Kean 1665, 667 
 
 Brash T. Gibbon ii 333 
 
 V. Scrihner ii 429 
 
 V. Taggart ii377, 513 
 
 V. Wflkins il 433 
 
 Bruton V. Braton ii 471 
 
 Bryan V. Jackson 1875,376, 380 
 
 V. M'Gee 11 88 
 
 V. Wagstaff 11 328 
 
 V. Watts il 905 
 
 Bryant v. Commonwealth Ins. Co ii 780 
 
 V. Hunters ii 704 
 
 V. Kelton 11 416 
 
 V. Klttenbush i 125 
 
 Bryden V. Taylor 1318,11 360 
 
 Buchanan V. Curry 11 407 
 
 V.Moore 1233, 483 
 
 V. Eucker 11194 300 
 
 V. Stewart ii 645 
 
 V. Taylor 1457,482, 483 
 
 Bnckv. Appleton i 126 
 
 V. Buck ii 24 
 
 Y.Pike 11 702 
 
 Buckingham v. Banks il 863, 866 
 
 v. Hannah ii 388 
 
 Buckingham V. M'Leau 1 203 
 
 Buckinghamshire (Earl of) v. Hobart i 608 
 
 Bucklandv. Conway ii402, 407 
 
 r. Tankard i 122 
 
 Buckle v. Luce i 526 
 
 Buckley V. Smith i 633 
 
 V. State 11 971 
 
 V. Wells i 619 
 
 Bucklinv. Thompson 1 714 
 
 Buckmlnster v. Perry i 819 
 
 Buckworth's Case 1 397, ii 521 
 
 Bach ads. O'Conner i 26 
 
 Budv. MUward ii 868 
 
 Buddicum v. Kirk ii 844 
 
 Budlong V. Van Nostrand 1 405, ii 892 
 
 Buell V.Cook 1 576 
 
 V. Cross ii 108 
 
 V. Trustees, &c ii 165, 339 
 
 Buford V. Bnford 11187 
 
 Buffalo & P. E. E. Co. v. HRtch 1 598 
 
 Bngg V. Norris' Lessee 11 60 
 
 Buhols V. Boudouskle 1 667 
 
 Bulkley V. Landon 1328,482, 849_ 
 
 V. Smith 1633,11 490 
 
 V. Smith i 601 
 
 V. Stewart ii 401, 405 
 
 Bull V. Hopkins 11 117 
 
 V. Loveland 11815,838, 896 
 
 Bull's Adm'r V. Price ii 86 
 
 Ballard v. Billings 1 S26, 646 
 
 V. Briggs ii 656, 686, 690 
 
 V.Wilson .'. 11 920 
 
 BuUen v. Arnold 1 98 
 
 V. Eunnels 1 656, 657 
 
 Bullock V. Beach i 441 
 
 V. Koon ....... ; 1 511 , 872 
 
 Balstrod V. Letchmore ^ 1 138 
 
 Bumgardner V. Allen 11698 
 
 Bimce V. Wolcott 1679,680,687, 
 
 694 
 
 Bunchv.Hurst 11512,516, 562 
 
 Bunn V. Morris i 852 
 
 v.Winthrop 11663,721 
 
 Bunnell v. Butler il 958 
 
 V. Pinto 11 25, 401, 412 
 
 V. Taintor's Adm'r 1847 
 
 .Buquet v. Watklns 11 142 
 
 Burbrldge v. Jakes 1 858 
 
 Burchet v. Palkner .Ii 18. 118 
 
 Burchfleld v. M'Cauley 11 149, 301 
 
 Burd v. Danedale 11 1000 
 
 V. Seabole il 301 
 
 Burden v. Burdell 11 251 
 
 Burdett v. Sims 11 700 
 
 Burdick v. Green 11 665 
 
 V. Post 11 19 
 
 Burdittv. Grew 1 689 
 
 Burrldge v. Geauga Bank 1 35 
 
 Burgess V. Lane et al 11 54 
 
 Bnrgh v. Wolf 1 682 
 
 Burghardt v. Turner ii 587 
 
 Burghart V. Angersteln i 353 
 
 Burnans v. Van Zandt 11 14, 41, 69 
 
 Burk's Ex'rs v. Tregg's Ex'rs il 343 
 
 Burke v. Crosble i 701 
 
 V. Granberry 11 4 
 
 V. Hale 1 467 
 
 V. LJnch i 681 
 
 Burke v. Young's Lessee il 1001 
 
 Burkhalter v. Edwards ii 983 
 
 Burkholder v. M'Eerran 11 405 
 
 Burkle v. Luce 1 669, 11 363 
 
 Burlington v. Calais i 508 
 
 Burlingame v. Bobbins 1 196, 334 
 
 Burnand v. Nerot .11 354, 385 
 
 Burnap v. Partridge : i 475 
 
 Burnet v. Minot il 408 
 
 Burnet v. Dennlston 1 608 
 
 v. Lynch 1 574 
 
 Burnett v. Commonwealth 11 106, 111, 113 
 
 V. Higglns 11 473 
 
 V. Phalon 11 709 
 
 Burnham v. Webster ii 373 
 
 V. Wilbur ii 669 
 
 V. Wilbur i 643 
 
 Burnley ads. Whitaker ii 507 
 
 Burnley's Adm'r v. Duke ii 86 
 
 Bums V. Burns 11 869 
 
 Bnrnslde v. Miskelly 11 124, 132 
 
 Bmr V. Byers 1 386 
 
 Y, Beers i 457 
 
XCll 
 
 TABIiB or CASES CITED. 
 
 Burr V. Qratz ii 479 
 
 V. Shearman 1463, ii 816 
 
 Burrell V. Nicholson 11 315 
 
 Burrill V. West il4. 8 
 
 Burroughs v. Nettles ii 674 
 
 T. Richman ii 674, 687 
 
 Burrowes v. Locke 1 610 
 
 Burrows v. Jemino ii 184 
 
 V. Smith ii 257 
 
 Bursley v. Hamilton '. ii 654 
 
 Burtv Palmer i 513 
 
 V Place 1 836, 825, ii 30, 44 
 
 V. Sternburgh ii 21, 46, 112 
 
 V. Walker.., ii 496 
 
 Burtch V. Nlckerrion '. 111004 
 
 Burton v. Anderson ii 428 
 
 V. Baker 1 853 
 
 V, Dees ii 126 
 
 v. Payne ii 523 
 
 V. Pettibone ..«u 11346 
 
 V. Scott i 496 
 
 V. Stewart ii 673 
 
 V. Wilkeson 11377 
 
 Bury V. Hartman i 482 
 
 Bushv. Bradey i 680 
 
 V. Byvanks 11337 
 
 V. Hewett 1452 
 
 V. Sheldon ii 78, 79 
 
 V. Western i 656 
 
 Bush's Heirs v. Williams 1 605 
 
 Bushell's Case ii 142 
 
 Buster's Bi'r V. Wallace ii 211 
 
 Butcher and Aldworth's Case ii 386 
 
 Butler V. Butler i 101, ii 337, 874 
 
 V "R-'Tisou ii 503 
 
 V. Cox ii 25 
 
 V. cuiuwall Iron Co ii 8H5 
 
 V. Damon 1122, 329, 484 
 
 V. Gale ii 644 
 
 V. Haskell i 694 
 
 V. Mayor of N. Y 11 103, 402, 405 
 
 V. Miller i 693 
 
 V. Monre 1 138 
 
 V. O'Hear i 698 
 
 V.Patterson 1 68 
 
 V. Potter ii 130, 143 
 
 V. Suddeth ii 670 
 
 V. The State ii 65, 515 
 
 V. Tufts i 102 
 
 V. Tucker 1 517 
 
 7. Wa'rren i 32 
 
 V. Wright i349, 350 
 
 V. Young 1 586 
 
 Butler's Case 11 540, 946 
 
 Ex'r V.Brown i 29 
 
 Bntley v. Gale ii 644 
 
 Butrlcke V. Broadhurst 1695 
 
 Butterworfh v. Pecare 1 829 
 
 Buttonv. Hudson River R. E. Co 1517.811, 813 
 
 Buttrick v. Allen 11 186, 339, 419 
 
 Butts V. Blunt ii 210 
 
 V. Francis ii 371 
 
 V. Swartwood 116, .18 
 
 Butz V. Ihre i 695 
 
 Buxton V. Lawton .•. 11861, 863 
 
 Byers et al. v. Fowler i 201 
 
 V. McClenahan ii 662 
 
 V. Van Dusen ii 402, 404 
 
 Byne, Ex parte ii 823 
 
 Bynum v. Bostick i 8 
 
 Byrd v. Commonwealth i 106 
 
 V.Ward i 603 
 
 Byrne v. Byrne ii 705 
 
 Byrnes v. National Ins. Co ii 7.32 
 
 Byass V. Sullivan, ii 940 
 
 V. Smith 11 940 
 
 Byxbiev. Wood 1 825 
 
 O. 
 
 Cabarga v. Leeger il BftS 
 
 Cabblness v. Brown i 842 
 
 Cable v. Cooper ii 143 
 
 Cabtcm v. Porter 1 701 
 
 Cadogan v. Cadogan i 600 
 
 Cady V. Shepard i 491, 493, BOO, 11 457 
 
 CahiU v. Dolph ii 119 
 
 Caines v. Grant's Lessee ii 708 
 
 Caldwell v. Benedict 1 608 
 
 V. M'Giuipsey 11 B74 
 
 V. Murphey 1 183, 737, 11 1004 
 
 V, Murphy U8S, 201, 11 1007 
 
 Caldwell V. Stewart I 89 
 
 Caldwells v. Harlan 1 476, ii 368, 939 
 
 Caldwell's Heirs v. White 1 697 
 
 Calhoun v. Ins. Co. of Pennsylvania ii 176 
 
 Calhoun's Lessee v. Dunning ii>Jl, 409 
 
 Calkins v. Falk ii 711 
 
 V. Lee i 138 
 
 Callan v. Gaylord ii 614 
 
 Callendar V. Marsh 11514 
 
 Caller's Ex'r v. Baykin i 868 
 
 Callis V. Tolson i 4 
 
 V. Waddy 1702 
 
 Calloway v. Willie's Lessee ■ 1 126 
 
 Calvert v. Fitzgerald 1 196, 11 593, 931 
 
 V. Flower ii 537 
 
 Calvin v. Hamilton 1 484 
 
 Cambioso's Bx'rs v. Maffett's Assignees i 884 
 
 Camden v. Cowlej i 200 
 
 Cameron V. Bell ii 108 
 
 V. Montgomery i731, ii 904 
 
 Camley v. Stanfleld ii 709 
 
 Camp V. Camp i 609, 668 
 
 V. Mosely 1 465 
 
 V. Root 11401 
 
 Campbell Y. Baker 11691 
 
 V. Beckford i 681 
 
 V. Belts ii 40 
 
 V. Commonwealth i 46 
 
 V. Consalus i 391, ii 108 
 
 V. Day 1 485 
 
 V. Hall ii 135 
 
 V. Hodgson 1 675 
 
 V. Hoyt ii 261, 591 
 
 V, Ineraham ii 882 
 
 V. M'Clenahan 11 650 
 
 V.Phelps 11 53 
 
 V. Rawdon 11714 
 
 V. Roarden ii 714 
 
 V. Eickards 1 486 
 
 V. Roberts 1 603 
 
 V. Roe 1608 
 
 V. Sheldon 11 86, 87 
 
 V. Smith 1654 
 
 V. State 15, 289, 396, 297, ii 904, 939 
 
 V. Tousey il 86, 87 
 
 V.Walker 1692 
 
 V. Wallace ii 510, 525, 717 
 
 V. Western i 166 
 
 V. Williamson 1510,51173, 176 
 
 V. Wilson i 651, 659 
 
 Campbell's Lessee v. Sproat ii 865 
 
 Canaan v. Greenwood T. Co 11 19, 39, 71 
 
 Canal Bank v. Bank of Albany i 469 
 
 Co, V. E. Eoad Co 11 374, 429, 433 
 
 Canby v. Ridgway 1 482 
 
 Cancemi v. People i 76B 
 
 Cane v. Allen i 693 
 
 V. t'owper 11761 
 
 Canfleld V. Maher i 323 
 
 V. Munger ii ; 
 
 Canning v. Pinkham i 43 
 
 Cantey V. Piatt , 11613 
 
 Canton v. Bentley 1 78 
 
 & Eedding's Case i 705 
 
 Canty v. Sumter ; 1 126, 32, 139 
 
 Canue v. Sagory ii 360 
 
 Capehart v. Huey's Adra'rs i 34, 89 
 
 Capron v. Austin .11 146, 147 
 
 Cardigan (Lord) Case of ii 938 
 
 Carey V. Pitt ii 599, 604 
 
 V. Wilcox Ii 409 
 
 Carhampton v, Carhampton ii 477 
 
 Caril V. Beekman 1 608 
 
 Carleton v. Whitclier 1 135 
 
 Carlin v. Dnmartrait i 483 
 
 Carlisle V. Perkins ii 850 
 
 v, Trears 1 84B, 855 
 
 Carl V. Butmau i 608 
 
 Carl V. Hart 1 679 
 
 Carlisle's Lessee v. Longnorth ii 472, 473 
 
 Carlton v. Bickford 11 338 
 
 Carlylo v. Long i 786 
 
 Carmack v. Commonwealth ii 8, 52 
 
 Carman v. Dunham's Adm'r i 374 
 
 Carmichaol v, Abraham i 684 
 
 Carniichael's Case ii 976 
 
 Carnaghon's Case ii 948 
 
 Oarnaii V. Turner 11 64 
 
 Carneal's Heirs v. Day 1 602 
 
 Games v. Field 1457,402, 483 
 
 Carnleyv. Stanfleld 11644, 709 
 
TABLB OF CASES CITED. 
 
 xom 
 
 Carpenter v. Groff 13M, ii 210 
 
 V.Jones i B4 
 
 V.Nixon .... 123 ii 940 
 
 V. Payne i 87S 
 
 V. Roe 1 608 
 
 V. Sheldon 1 494 
 
 V. Shilwell 1 465 
 
 V. Taylor il 813 
 
 V. Tucker i 676 
 
 V.Ward 11903,950 
 
 et al. Whitman i 746 
 
 Carrv. Cornell i 376 
 
 V. Gale 1 188 
 
 Carrlngton V. Bennett 111002 
 
 V. Carnock ii 210 
 
 Carroll v. Llewellen 11 587 
 
 V. Norwood il 476, 505, 506 
 
 V. Peake ii 543 
 
 V. State 1658, 559 
 
 V. Tyler 1 303 ii 587 
 
 V. waring 1 682, 702 
 
 Carshore v. Hayek ii 394, 444 
 
 Carson V. Blazer 11 192 
 
 Carter V. Bellamy ii 653 
 
 V. Bishop 11 62 
 
 V. Buchanan i 173 
 
 V. Carter ii 179 
 
 V. Chandron 11 480 
 
 V. Commonwealth 1742, 763 
 
 V. Connell 11 597 
 
 V. Graves 11 815 
 
 V. Gregory i 179, 403 
 
 V. Hope 1 850 
 
 V. Jon- s 1 820 
 
 V. Murcott i 701 
 
 V. People 11981 
 
 v.'Stenipson il 364 
 
 V. Uppington 11 862 
 
 V. Whalley il 277 
 
 V.Wilson ii426<'427 
 
 Carter's Heirs v. Cutting' 11 88 
 
 Carfwright v. Godfrey 11 68 
 
 Carnth V. Allen i 747 
 
 Caruther v. Eldridge il 480 
 
 Carver v. Jackson i 319, 473, 667, ii 574, 576, 592 
 
 V.Tracy 1 408 
 
 Gary v. Campbell 11 512, 517 
 
 V. Hotaling i 773 
 
 Case oftheMarshalsea 11 148 
 
 of Sargeam et al Ii 114 
 
 of Weil's Will Ii 75 
 
 Case V. Berry 1 379 
 
 V. Boughton 1693, Ii 652 
 
 V. Gerrash 11 674 
 
 V.Potter i 379 
 
 V. Kedfleld ii 130 
 
 V. Eeeves il 4, 6, 10 
 
 V. Shepherd ii 148 
 
 Caskeyv. Lewis i 820 
 
 Castellanos v. Jones ii 198 
 
 Caslinv. Smith ii 789 
 
 Cassels v. Vernon ii 74, 76 
 
 Castellano v. Pelllon . .1 23 
 
 Castledon v. Turner ii 752 
 
 Caatlehaven V. TJnderhill i 690 
 
 Castlemain (Lord), Case of. ii 955 
 
 Caaton's Ei'rs v. Ballard 1 126 
 
 Cates V. Loftns' Heirs il 61 
 
 V. Woodson ii 63, 64 
 
 Cathcart V. Robinson 11699 
 
 Catlett V. FacUc Ins. Co. . .1 852, ii 286, 418, 419, 724 
 
 Catlin V. Bell 11 684 
 
 V. Gunter i 826, 836, 874 
 
 V. Guntcr 1851 
 
 V. Underbill ii 192, 347, 427 
 
 V. Ware 11585, 687 
 
 V. Washburn 11554, 688 
 
 CatoSt. Conspiracy i 111 
 
 Catonv. Lenos 1395, 397 
 
 Cator V. Stakes Ii 367 
 
 Catt V. Howard, 1410, 11 923 
 
 Catteries v. Cowper 1 646 
 
 Canfman v. Pres. Cong, of C. S 1 224, 11 663 
 
 CaujoUe v. Ferrie i 631 
 
 Cavalier V. Collins 1 370 
 
 Cave V. Coleman i 848 
 
 V. Davis ii 116, 118 
 
 Cayford'a Case ii 280 
 
 Caymev. Watts 11 403 
 
 Cayuga Co. Bank v. Warden ii 742, 761 
 
 Cecil's Lessee V. Lebenstone ii 867 
 
 Cells V. Oriol ii 281 
 
 Center v. Patterson ii 268 
 
 Central City Bfe. v. Dana ii 19, 124 
 
 Central Bk. of Georgia v. Veazie 11 427 
 
 Tarnp Co. v. Valentine ii 563 
 
 Cesar V. Chew 11 752 
 
 Chain V.Kelso i 178 
 
 Chairman of Mecklenburgh v. Clark ii 8 
 
 of Wash. Co. Ct. v. Harramond i 308 
 
 Chalmer v. Bradley i 693, Ii 268 
 
 Chamberlain v. Seller 1 693 
 
 V. Day 1 481 
 
 V. Gorham 132,745, 11 518 
 
 V. Martin i 693, 11 268 
 
 V. People i 835 
 
 V. Thompson ii 700 
 
 Chambers v. Halsted i 818 
 
 Chambers v. Handley 11 32, 863. 864 
 
 V.Hunt 1390,392,11212, 652 
 
 v.Patton 1182, 116 
 
 V Spencer -. i 89 
 
 V. Waters i 693 
 
 Champion v. Brooks 11 999 
 
 V. Rigby 1687 
 
 V, Terry ii 516 
 
 V. White ii 686. 687 
 
 Champlaln v. People 11 220 
 
 Champlin v. Butler 1 459, 11 647 
 
 V. Laytin ii 699 
 
 V. Tilley i 186, 403, 404, 413, 
 
 746, ii 86 
 
 Chance v. Hine i 100, 11 874 
 
 Chandler v. Herrick ii 117 
 
 V. Morton 1125, 11 682 
 
 V. Thompson i 640 
 
 Chandos (Dutchess oO v. Browulow i 688 
 
 Chanoine v. Fowler 11 4,30 
 
 Chant V. Brown i 154 
 
 Chapel v.Dann 11651, 669,681,691 
 
 V. White 1 87 
 
 Chapin v. Coleman i 499, 500, 11 72 
 
 Chaplin V. HartsUorn , 1110 
 
 Chapman v. Allen 11698, 700 
 
 v.Carolin i 826 
 
 V. Beard 1 649 
 
 V.Brooks ii 969 
 
 V, Chapman 1259, ii 4. 7 
 
 V. Doe ii 783 
 
 V. Graves 1 49 
 
 V. Lathrop 1 696 
 
 V. Murch i JB48 
 
 V. Searle 1 466 
 
 V. Wilbur 11 273 
 
 V. Wilbur i 621, 625, ii 273 
 
 Chappel V. Avery 11 639 
 
 V. Spencer i 853 
 
 Chappel V. Dann 11 681, 691 
 
 Charv. Keckelly i 127 
 
 Chardon v. Calder T. Co i 499 
 
 Charity Jackson's Case i 551, 655 
 
 Charles v. Delpux ; 1 586 
 
 V. Scott ..1 870 
 
 Charleston v. Allen ii 298 
 
 Ordinary v. Stedman i 677 
 
 Charlotte Hall School v. GreenweU 1 249 
 
 Charlton V. Lawry i 378 
 
 Charnelly V. Winstanley 11 406 
 
 Charter v. Stevens 1 693 
 
 V.Otis 11 766 
 
 Chase V. Hathaway 11266, 449 
 
 V.Lincoln 1 32 
 
 V. Loverlng i 49 
 
 V. Manhardt 11 699 
 
 V. Smith 1 301, 348 
 
 Chasteen V. Ford ii 63 
 
 Chateanv. Thompson i 104 
 
 Chatteris v. Young 11 706 
 
 Chautauqua Co. Bk. v. Rlsley 1 598 
 
 Chautauqua Co. Bk. v. Rlsley il 575 
 
 Chave V. Farrant 11 705 
 
 Cheasley T. Bumes 11 366 
 
 Cheetham v. Lewis i 855 
 
 Cheeve V. Powell i 133 
 
 Cheeverv. Merrick 1 747 
 
 Cheffel V. Purday ■ 383 
 
 Chelseyv. Frost 11483 
 
 Cheminant v. Pearson u 285 
 
 Chemung Canal Bank v. Judson, ii 106, 158, 339, 387 
 
 Chenango (Supervisors of) v. Birdsall i 29 
 
 il 1001 
 Cheney v. Arnold 1 5S9, 632, ii 872, 892, 928 
 
TABLE OF CASES CITED. 
 
 Cheney v. Watkius il B83, 587 
 
 Cheney's Case... ii 688,752. 762 
 
 Chenie v. Watsofi i B69 
 
 Cherriot v. Barker ; . . .ii 798 
 
 V. Fouseat ii 171, 178, 195 
 
 Cherry v. Boyd i 222 
 
 v.Holly 11653,727, 793 
 
 V. Slade i 178, 199 
 
 Chesapeake Ins. Co. V. Allegre ii 727 
 
 Chesby V. ProBt 11483,517 
 
 Chess V. Chess. . . .1 323, 394, 395, 400, ii 210, 596, 662 
 
 Chester v. Bank of Kingston 11 647 
 
 V. Eockin^ara 1 43 
 
 Chew V. B'armers' Bank of Maryland 1 140, 148 
 
 V. Keck 11 347, 418 
 
 Chewnlng v. Proctor 1 675, 11 575 
 
 Cheyney's Case 11 780 
 
 Chichester v. Vass' Adm'r ii 704 
 
 Chidleyv. Lee 11 705 
 
 Chldsey v. Porter 1 515 
 
 Child T. Chappell . .• 1 464, 11 785 
 
 V. Chamberlain 1 35 
 
 V. Grace i 438 
 
 V. Wells ii 645 
 
 Childerston v. Hammond 11 503 
 
 Childress v. Cutter 11 390 
 
 Chiles V. Conley's Heirs 11 62, 63 
 
 Chilson V. Philips i 51 
 
 Chilton V. Wilson 11 454 
 
 Chine V. Fepass 1 8 
 
 Chinn v. Eussell 11 268 
 
 Chinowith v. Haskell's Lessee 11 783 
 
 Chippendale v. MassOn ii 885 
 
 Chirac v. Eelnlcker 1 143, 157, 249, il 301 
 
 Choate v. Burnham Ii 803, 804 
 
 Cholmondeley v. Clinton 1 685, 686, 701 
 
 v. Oxford i 699 
 
 Chouteau V. Suydam 1 643 
 
 Christ V. Armon 1 732 
 
 V. Devebaugh 11 650, 698 
 
 Christian V. Hoover ii 134 
 
 V. Scott il 401 
 
 Christie v Secretan 11 173 
 
 Matter of ii 266 
 
 Christine et al, v. Whitehall 11 344, 650 
 
 Christopher v. Garr 1 680 
 
 Christopher, &c., v. Elizabeth, &c i 683 
 
 J V. Sparke 1678,879 
 
 Christy v. Minor ii 473 
 
 Chunn v. McCarson ii 652 
 
 Ctiurch V. Brown ii 676 
 
 V. Burgharst 1 196 
 
 V. Church 1645, 698 
 
 V. Gillman i 609, ii 661, 662 
 
 V. Hills 11 657 
 
 V. Hubbart ii 253, 346, 417. 419 
 
 ■V. Landers 1 603 
 
 V. Leavenworth 11 22, 39, 44 
 
 V. Steele's Heirs 1 430 
 
 etal.,Bx parte 11280, 594 
 
 et al. V. Jaques i 419 
 
 Churchill V. Bailey 11 860 
 
 V. Day 1 790 
 
 V.Hunt 1842 
 
 V. Speight's Ex'rs 1 610 
 
 V. Suter 15, 106, 129, 11 674 
 
 V. Wilkins 1846 
 
 Cilly_ V. Jennea , 1 745 
 
 Cincinnati, &c., E. E. Co. v. Wayne 11 186 
 
 Clples V. Alexander's Adm'r 1 483 
 
 Cist V. Ceigler ii 19, 21, 28, 36, 44, 116 
 
 City of Oswego v. Oswego Canal Co 1 228 
 
 City Bank of B, V. Dearborn 11158 
 
 v. M'Chosney 11 277 
 
 City Bank v. Bangs 1 80, 88, ii 72 
 
 V. Barnard 11 673 
 
 v. Bateman 1 487, 510, 518, il 938 
 
 V. Poucher il 614 
 
 V. Smith 1 698, 697 
 
 City Council v. Hayward 1 61 
 
 V. King 1 42, 480 
 
 City Savings Bk. v. Bklwell i 732 
 
 Claflln V. Farmer's Citizens Bk i 468 
 
 Claiborne v. Parish 1 176 
 
 Clapham v. Bower .i 679 
 
 Clapp V. Cofran '.'ii 352 
 
 v. FuUerton i 735 
 
 V. Wilson . . . il 971 
 
 V.Wilson '.'.■."11652 
 
 Claremont v. Carleton 11 720 
 
 Clargesv. SUerwin U 53 
 
 Clark v. Bryan 11 392 
 
 V. Arnold , I 319 
 
 V. Baird 1785, 11 803 
 
 V. Baird 1426, ii 383, 785 
 
 V. Beach 1 736 
 
 V. Belman ii 375 
 
 V. Bogardus 11 705 
 
 V. Boyd 1 483 
 
 V. Brown ii 856 
 
 V. Capp 11 602 
 
 V. Cleveland 1 826 
 
 V.Cleveland 11220 
 
 V. Dearborn .1 811.11 511 
 
 V. Dearborn i 577, 811 
 
 V. Dew il 89 
 
 V. Dibble il 385 
 
 V. Dutcher 11 899 
 
 V. Faunce 1 861, 664 
 
 v. Fisher i 785 
 
 V. Freemen 11 599 
 
 V. Gifford 11 688, 754 
 
 V. Gilbert ii 683 
 
 V. Gleason et al 1 499 
 
 V. Grant 11 822 
 
 V. Henry 11 649 
 
 V. Hunt i 885 
 
 V. Irvln 11 48 
 
 V. Janesville 11 433 
 
 V. Lipon 1 119 
 
 V. Longworth U 512 
 
 V. Lowe i 843 
 
 V. Magruder 1 348 
 
 V. Manstone 1 847 
 
 V. M'Millan 11645,668 
 
 V. Montgomery 1 526, ii 41, 4 
 
 V. Owens 11 480, 264 
 
 V. Pinney .' 11 632 
 
 V. Pratt 1 624 
 
 V. Eay 11 603 
 
 * V. Eogers 1 482 
 
 V. Sanderson 11 460, 493, 494, 497, 499, 506 
 
 V. Shields 1 457 
 
 V. Sigourney 1 491 
 
 V. Todd 1 847 
 
 V. Vorce 1 390 
 
 V. Wallace 11 599 
 
 V. Webster 1 741 
 
 V. Wethey 11 803 
 
 Clark's Adm'r v. Van Eiemskyk 11 72 
 
 Ex'rs V. Carrington 11 9, 187 
 
 V. Hopkins i 682 
 
 Lessee v. Courtney 1 823, 11 460, 478, 
 
 480, 500 
 
 Lessee v. Hall 1 23, il 181 
 
 Clarke v. Accosta i 620, 798 
 
 V.Clarke 1 458 
 
 v. Cnmmings 1 641 
 
 V, Gaslight and Coke Co i 177 
 
 V. Meigs 1 620 
 
 V. Spencer ii 333 
 
 V. 'VValte i 321, 322 
 
 Clarke's Adm'r V. Day 11 188, 190 
 
 Clarkson v. Carter : .1 696 
 
 V. Hanway il 689 
 
 Clason V. Morris i 702, ii 69 
 
 Clay V. Clapperton 11 363 
 
 V. Johnson 1 467, 483 
 
 V. Langslovv 1 601 
 
 V. Oakley ii 549 
 
 V. Smith ii 1B4 
 
 V. Williams i 140 
 
 Clayton v. Anthony i 206, 327, 494 
 
 V. Gregson il 726, 787 
 
 V. Per Dun ii 119 
 
 V. Warden 1 589, 11297 
 
 V. Warden ii 279 
 
 Cloaland v. Huey i 392 
 
 Cleaton v. Chambllss 114,37, 44 
 
 .Clegg V. Fields '. 1 785 
 
 Clelaud v. Waters Ii 640 
 
 Clement v. Durgln 1 218, 11 402 
 
 Clements v. Hunt 1 250 
 
 Clerk V. Withers ii 373 
 
 Clermont v. Tullidge ii 611 
 
 Clove V. Jones 1 144 
 
 Cleveland v. Boerum l 732 
 
 V. Rogers 1120,162, 863 
 
 V. Union Ins. Co ii 17s 
 
 V. Whlton ii 448 
 
 Clifford V. Parker 1 807 
 
 Clifton v.Hftlg'sBx'r i 684 
 
TABLE OF CASKS CITED. 
 
 XCV 
 
 Clinan v. Cooke , ,.li 741 
 
 Cline V. Caldwell ii 1002 
 
 Clinton T. Hooper i 611 
 
 V. Howlanfl 1 409 
 
 CllntBmSin t. Northrop 11 268 
 
 Cloberry V. Symond 1 681 
 
 Close y. Olney 11 936 
 
 v. Stewart 11 110 
 
 Clothier v. Chapman i 220, 221 
 
 Cloud T. Patterson 11 611 
 
 T. Sledge ■. 11 405 
 
 Cloughy. Little 1 385 
 
 Cloverlng v. Clorering 11 663 
 
 Clowes V. Hawley 1 481 
 
 Cloyes V. Thayer ■ 11 940 
 
 Cluggage's Lessee T. Swan ; 1302,11 256 
 
 Clum V. Smith 1 168 
 
 Clute V. Fitch i 449 
 
 V. Pitch 11211 
 
 V. Small 11516,677, 717 
 
 Coale V. Harrington i 325 
 
 Coalter v. Hunter i 654 
 
 Coaa V. Osgood i 526 
 
 CoatesT. Bainbrldge 1 510 
 
 T. Hughes ii 78 
 
 Coates y. Eoberts 11 74, 116, 132 
 
 Cobb V. Curtiss...,„ 11 31 
 
 V. Lucas ii 301 
 
 V. Lnnt 1483, 616 
 
 Cobum V. Hopkins 11 366, 821 
 
 y. Odell ii929, 935 
 
 Cochran v. Cochran i S3 
 
 Cockey's Lessee v. Smith i 669 
 
 Cocks V. Nash 11326, 898 
 
 Coddington v. Davis 11 632 
 
 V.Hnnt 11 277 
 
 Codman T. Caldwell 1 385 
 
 v.Kogers 1639 
 
 Codwise y. Field 11 371 
 
 Coe V. Harvey 1 678 
 
 V. Hutton 1437, 743 
 
 V. Knlffen 1 315 
 
 Coe's Case 1 601 
 
 Coffey's Case 1 769, 11 600, 612 
 
 Coffin V. Coffin 11 603 
 
 V. Cooper 1 696 
 
 V. Cross 1 380 
 
 V. Tracy 11 164 
 
 CogblU V. Cogbill 1 31 
 
 Coggill V. American Exchange Bank i 469 
 
 Coggs V, Bernard 11 141 
 
 Cogswell V. DoUlver 1 380, 382 
 
 V. Meech 1 684 
 
 Coghlan v. Dlnsmore 1 811 
 
 Cohen's Adm'r v. Thompson's Ex'rs 1 602 
 
 Colt V. Beard ii 33 
 
 y. Commercial Ins. Co 11 727 
 
 V. Howard i 202, 332 
 
 V. Milllkan ii 456 
 
 V. Starkweather 11 720, 762 
 
 V. Tracy 1491,1118, 61 
 
 V. Wella 11 254 
 
 Coker y. Farewell 1 397 
 
 Colbumy. Ellis 1 583 
 
 y. Bichards • i 654 
 
 Coldenv. Hendrick r...l 141 
 
 Cole V. Anderson 1 374 
 
 V. Blunt i 166 
 
 V.Cole 1411, 431 
 
 V. Dial i 336 
 
 V. Goodwin 11 731 
 
 V. Moffltt.- 1 264 
 
 V. Scott 1 685 
 
 y. Smith i 672 
 
 V. Stone 11 423 
 
 V. Trull 1 192 
 
 V. Wendell 11 750, 767 
 
 Cole's Lessee v. Cole 1 23, 11 181, 874 
 
 Colegrove v. N. T. & N. H. K. E. Co 11 1009 
 
 y. N. Y. & N. H., N. Y. & H. Co's. .11 1009 
 
 Coleman v. Allen 11 1000 
 
 v. Anderson 1 666, 11 142 
 
 V. Casey ii 588 
 
 V. Crumpler 11 561 
 
 V. Gmbb 11709, 710 
 
 y. Hess ii 868 
 
 V. Parish U 116 
 
 y. Sonthwiok 1 189, 215, 216, 608 
 
 y. Wade i 401 
 
 V. Wolcott i 4, 32, 11 518 
 
 Coles y. Carter ii 46 
 
 Coles V. Coles ii 703, 873 
 
 V. Trecothlc h 741 
 
 CoUam V. Hocker 11 660 
 
 CoUenridge v. Farquharson 1 329, 331 
 
 Collet V. Keith 11 87, 197 
 
 Collier T. Collier 11 714 
 
 V. Moulton 1 733 
 
 v. Slate 1297,11 221 
 
 Colling v. Treweek 11 646 
 
 CoUmgs V. Hope ii 728 
 
 CoUlngwood V. Irwin ii 132, 646 
 
 Collins V. Archer 1 688 
 
 V. Batterson 11 150 
 
 V. Blantem 11 684 
 
 V* Ferris 11 147 
 
 V. Qodefroy 11 813 
 
 V. Hare 1 350 
 
 V. Lemasters 11603, 919 
 
 V. Lowrle 11 210 
 
 V. Matthews 11 387, 420, 426 
 
 V. State , ii 415 
 
 <>v. Torry 1 678 
 
 V. Turner 11 89, 90 
 
 Collin's Case • 1 535, 735 
 
 Collinson v. Gill i 804 
 
 Colman v. Anderson i 666 
 
 Colpoys V. Colpoys 11 721, 738, 748 
 
 Colson V. Bonzey ii 285, 286 
 
 Colson V. Nichols 11 873 
 
 Colt V. People 11 981 
 
 V. Root 1 848 
 
 Colton V. Beardsley i 693, 669 
 
 V. Smith 1 660 
 
 Columbia Bank v. Southerland 1 789 
 
 Ins. Co. v. Catlett 11 1009 
 
 v. Lawrence 1 610, 570 
 
 Columbian Manf. Co. v. Dutch 1 34 
 
 Colvert V. Millstead's Adm'r. 11 211 
 
 Colvinv. Carter 1 604 
 
 V. Corwln ii 120, 392 
 
 V. Currier i 46S 
 
 V. Luther 11 130 
 
 Colwell V. Lawrence 1 785 
 
 v.«I/awrence 11 709, 755 
 
 v.^oods ii 740 
 
 Colyer y. Jackson 11 575 
 
 v. M'Gee ii 700 
 
 Comber v. Hill 1 611 
 
 Comber 's Case 1 682 
 
 Combs V. Bateman i 98 
 
 V. Boswell 11 68 
 
 V. Tarlton'a Adm'r 11 14, 63 
 
 Comfort V. Gillespie ii 143, 147 
 
 Commander v. Bussell 11 696 
 
 Commercial Bank v. Clapier 11 743, 777 
 
 of Penn v. Union Bank of 
 
 N. Y ......11 818 I 
 
 Commissioners of Bucks Co. v. Eoss 11 503 
 
 &c. v. Butt ii 62 
 
 V. Canan 11 134 
 
 V. Greenwood 11 725 
 
 V. Hanion 11 746, 597 
 
 V. Jarvls 1 441 
 
 V. M'Calmont 11 669, 741 
 
 v.Muse 1 867 
 
 V. Plank Eoad Co i 484 
 
 V. Boss 11 444 
 
 Commonwealth v. Alburger 11300, 301 
 
 V. Alderman 11 115 
 
 v. Andrews i 891, 11 123 
 
 V. Bailey 1 835 
 
 v. Balrd: i 42 
 
 V. Belton 11 305 
 
 V. Bolkom 11 288, 389 
 
 V. Bowden li 111 
 
 V. Boyer 1 495, 553, 739 
 
 ii 884, 982 
 
 V.Brady 1 835 
 
 V. Brenneman i 732 
 
 V. BrlggB : 1 81 
 
 V.Carey 1296,11 606 
 
 y. Carter 1 636 
 
 V. Chabbock i 179, 389, 543 
 
 V. Chapin 1 609 
 
 V. Charleston Ii 143 
 
 V. Cheltenham, &c. Turnp. 
 
 Co .il 389 
 
 V. Churchill 11 337 
 
 V. Clue 11 111 
 
 V.Cole i 40 
 
 V. Omba 11 143 
 
XCTl 
 
 TABLE OF CASES CITED. 
 
 Cbmmonwealtli v. Commias. of PMladelphia.ii 811 * 
 
 V. Connelly i 95 
 
 V. Cook ii 111 
 
 V. Cooper ; ii,114 
 
 T. Crowninehield i 494 
 
 V. Cullens i 891 
 
 V. Cunningham ii 132 
 
 V. De LongehampB. ii 874 
 
 Y.Dillon 1543, 553 
 
 V. Drake i 137, 432 
 
 V. Dudley ii 617 
 
 v. Eastland i 85 
 
 V. Bberle et al i 176, 179, 495, 
 
 , ii 975 
 
 T. Elieha ii 48 
 
 T. Emery ii 651 
 
 V. Fowler ii 594 
 
 V. Frazier i 605 
 
 V. Freely il 817, 830 
 
 V.Frost 159, 127 
 
 V. Fuller jl 863, 871 
 
 V. Goddard .m 111 
 
 V. Gore 182, 61 
 
 V. Green i 28, Ii 181, 187, 189 
 
 v. Griffin ii 466 
 
 V. Griffltli ii 87 
 
 V. Hambright il 822 
 
 V.Hardy 1762, 763 
 
 V. Hargeslieinier i 59 
 
 V. Harrington 1 890 
 
 V.Hart il73, ii 734 
 
 V. Haskins ; ii 905 
 
 V. Hawkins ii 905 
 
 V. Hoover i 646 
 
 V. Horton 1461,11 54 
 
 V. Hoxey 1 844 
 
 vV. Hunt 1 844 
 
 V.Hutchinson 1 10 
 
 V. Jacksuu 11 34, 116 
 
 V. James 1 568, 674 
 
 V. Junes 11 830, 840 
 
 V. Judges of C, P ii 1000 
 
 v. Keighler i 43 
 
 V. Kimball S....i 604 
 
 V. Kinney 11 121, 127 
 
 V. Kinnifion i 674 
 
 V. Knapp . . .1 109, 462, 643. 546, 547 
 556, 612, ii 181, 313, 870, 942 
 
 V. levy il 598 
 
 V. Levy's Adm'r 1 683 
 
 V. Littlejohn ii 253, 280 
 
 V. Lond ii 66 
 
 V. Loud ii 56 
 
 V. Low 1 660 
 
 V. Marsh 129,30 
 
 v.M'Ohord ii 113 
 
 V. M'Curdy , il 273 
 
 v. Messenger 11 541 
 
 V. Millard i 735, ii 871 
 
 V. Miller i 95 
 
 V. Moore 1 61, ii 956 
 
 V. Morey i 537, 552, 658, ii 244 
 
 V. Morse i 647 
 
 V.Mortimer ii 32 
 
 V. Monlton i 59 
 
 V. Murphy ii 956 
 
 V. Murtagh 11 279 
 
 V. Norcross . . .i 584, il 253, 279, 280 
 
 V. Oliver i 61 
 
 V. Pendleton ii 641 
 
 V. Phillips 11 245 
 
 V. Pike 1133,186,11 50 
 
 V.Pope ii 784 
 
 V. Purchase ii 111 
 
 V. Quann 11 113 
 
 V. Bobbins i 81 
 
 V. Bobinson 1 85 
 
 V. Boby ii 66, 111, 114, 150 
 
 V. Boby i{ 56 
 
 V. Bodes 11 836 
 
 V. Bogers 1 604, 833 
 
 V. Eogers 1604 
 
 V. Bowan ii 734 
 
 V, Samuel 1 818 
 
 V. Searle 1 886 
 
 V. Selden 11135, 661 
 
 V. Shaw , il 936 
 
 V. Shepherd 196,680 
 
 V. Shriver 161, 80 
 
 T. Slmonton 11 407 
 
 T. Smith .11 607, 614, 878, 968 
 
 Commoh wealth v. Snell , . . .i 5, ii 616, 543 
 
 V. Somerville ii 113 
 
 v. Springfield .11 273 
 
 V. Stevens 1752, 835 
 
 V. Stewart 1 763 
 
 V. Stow 1 813, 863 
 
 V. Strieker :; i fl5 
 
 V. Taylor 1 537, 553, 11 244 
 
 V. The Pejepscut Propri . .ii 88, 575 
 
 V. Tilden i 142, 167 
 
 V. Trimmer i 845, ii 845 
 
 V. Waite i 100 
 
 V. Ward i 830, ii 152 
 
 V. Wentz 195, 630 
 
 v.Wheeler 11 110 
 
 V. 'Williams 11811 
 
 V. Wilson 1778,11895, 910 
 
 V. Wrelper 11 295 
 
 V. Wood ii 813 
 
 V. Wolson et al 1 206 
 
 V. York .1 604 
 
 Comstock V. Beardsley 11 473 
 
 V. Hadlyme i 316, 817, 820, ii 752, 765 
 
 V. Van Dnsen. . .i 651, il 645, 647, 719, 721 
 751, 803 
 
 Conant v. Bajmiond ii 118, 115 
 
 Conard V. Atlantic Ins. Co ? 1 746 
 
 Concord v. M'Intyre ii 514 
 
 It. E. V. Greeley i 779 
 
 Condlct V. Stevens ii 670, 666 
 
 Cone V. Colton ii 145, 189, 195, 198, 489 
 
 V. Tracy 11 656 
 
 Congregational Society V. Perry i 43 
 
 Conklln V. Barton 1466 
 
 ■ V. Stamler i 870 
 
 Conlay v. State ii 844 
 
 Conn et al v. Penn 1 827 
 
 Conn's Adm'r v. Gano's Es'r i 840 
 
 Connecticut v. Bradish 1 43 
 
 V. De Wolf ii 883, 979 
 
 V. Parmelee i 384 
 
 v.Shepherd .■ 1384 
 
 V. Watkins i 736 
 
 V. Weston .1 634 
 
 Connell V. Brown 11483 
 
 Connelly V. Bowie 11583,584. 584 
 
 V. Connelly ii 177 
 
 Connelly's Heirs v. Chiles 1 455 
 
 Conner's Case i 687 
 
 Connor v. Bradey 11 939 
 
 V. Commonwealth ii 162 
 
 Conolly V. Pardon il 769 
 
 Conover v. Bell •. ii 938 
 
 V. Ins. Co. of Albany ii 298 
 
 Conrad v. Atlantic Ins. Co 1 746, 11 460 
 
 V. Farrow ii 494, 601 
 
 v. Giffrey ii 905 
 
 v. Keyser i 33 
 
 Conry V. Jacob 11 879 
 
 Consequa v. Willings il 481 
 
 Constable v. Steibel 11 608 
 
 Converse v. Converse 1 466 
 
 V. Symmes 1 854 
 
 Conway V. Skrimpton 1 6S1 
 
 Cookv. Com ii 938 
 
 V. Brockway i 785 
 
 v. Eaton il 673, 682, 709 
 
 v.Bllis i 760 
 
 V. Graham's Adm'rs 1 868 
 
 V. Grange i 78 
 
 V. Green 1 609 
 
 V. Hearn 1 181 
 
 V.Holmes 11818 
 
 V.Howard il 99 
 
 V.Hull 1654 
 
 V. Hosted 11 394 
 
 V. Kelly i 469 
 
 V. Litchfield 11 761 
 
 V. Moseley 11117,121 
 
 V. Paruham 1 779 
 
 V. Preston il 700 
 
 V. Swan 1292. 881 
 
 V. Vimont ii 118 
 
 V. Whiting ; 1 644, 709 
 
 V. Wilson's Adm'r i 60S 
 
 V. Wood il 858 
 
 Cook's Adm'r v. Hendricks 1 697, 11 661 
 
 Cooke V. Banks 1 820 
 
 V. Booth 11 803 
 
 V. CurtlBS ii 979 
 
 V. Hull 1 664, 66G 
 
TABLE OF CASES CITED. 
 
 XCV-11 
 
 Cooke V. Maxwell i 164, ii 347 
 
 V. Soltau i BTl 
 
 V. Whorwood ii 85 
 
 ■ V. Woodrow 11 495 
 
 Cooke'a Lessee v. Hunter ii 6S1 
 
 Cookson V. Slmpaou 11 862, 866 
 
 Oooley V. Norton 1 188 
 
 Coolidge T. Learned 1 650,662, 657 
 
 V. New York Mremen Ine. Co 11 286 
 
 Combs V. Coether •. ii 288 
 
 Coon V. Congdon ii 152, 863 
 
 V. State 1 419 
 
 Coons V. Chambers ii 666 
 
 Cooperv. Amos ; 1805 
 
 V. Bockett il 612 
 
 V. Dedrlcti 1 640 
 
 V. Gibbons ii 636 
 
 V. Johnson 11 406 
 
 V. Jones i 611 
 
 V. Martin 11 29, 61, 63 
 
 V.Miller : .:.... 1127 
 
 V. Morrell 1 508, 588 
 
 V. Purvis '. 11 787 
 
 ' V. Smith 1656 
 
 V. Thornton 1 699 
 
 V. Wakley i 818 
 
 V. Watson 1584, 747 
 
 Cooper's Lessee v. Galbralth il 365 
 
 Cope V. Arberry 1 569,11511, 573 
 
 V. Cope i 254 
 
 V. Dodd 1 232 
 
 V. Sibley 11 212 
 
 Copeland v. Copeland 1 463 
 
 V. Mercantile Ins. Co 11 691 
 
 Copens V. Kauffman 1 88 
 
 Copes V. Pearce i 250 
 
 Copp V. M'Dugall 11 8 
 
 V. tTpham 1322,11 938 
 
 Corbettv. Barker i 679 
 
 Oorbln V. Dawson 11 863 
 
 V. Jackson ex dem. Gamsey. .11 471, 517, 632 
 
 Corbitt V. Corbitt 11 714 
 
 Corey v. Corey i 682 
 
 Corlies v. Cummlngs 11 849 
 
 Corlla V. Little ii 256, 259 
 
 Corneal V. Blckley il 607 
 
 Cornelius v. Commonwealth Ii 839 
 
 V. State.... 1 85 
 
 Cornell v. Cook i 403, 405, 11 373 
 
 V. Green 1 395, 398, 399 
 
 v. Hope Insurance Co 1 745 
 
 V. Masters •. i 825 
 
 v^ykes „ 1 679 
 
 vTTbe State 11 1002 
 
 Corning v. Ashley 1 386 
 
 v. Corning 1 851 
 
 V. Smith 11 126 
 
 V. Sontherlaud (Sheriff) 1 521 
 
 V. Troy Iron & N. F i 463, 656 
 
 Cornish v. Pugh 1 89 
 
 Comogg V. Cornogg's Ex'rs 1 867 
 
 Cornwall v. Richardson i 757 
 
 Cornwell V. Isham 1 42 
 
 Corporation v. Field 1 702 
 
 o( Col. V. Harrison i 632, 11 919 
 
 Corps V. Robinson 1137,439, 499 
 
 Corse V. Patterson 1 88 
 
 Coraer v. Craig 1 482 
 
 Cort v. Delaware Ins. Co 1 178 
 
 Cortelyoiiy. Van Brunt 1733, 11 803 
 
 Corven's Case i 659 
 
 Corweln v. Hames i 42 
 
 Cossens, Ex parte 11929 
 
 CoBtelanos v. Jones 11 198 
 
 Coster V. Mersey 1 329 
 
 V. Murray 1684,688, 689 
 
 V. Symons i 328 
 
 Cotchett V. Dixon i 100 
 
 Cote V. Miller li 390 
 
 Cotes V. Mitchell ; 11 151 
 
 Cotterell v. Dutton i 680 
 
 V. Hobby i 577 
 
 y. Myrlck 11 607 
 
 V. Purchase 1 679 
 
 Cottlngton V. Fletcher li 702 
 
 Cottle V. Paine i 677 
 
 Cottle's Case 11 89, 90 
 
 Cottom V. Cottom il 20, 129 
 
 Cotton V. Beasley 1 32, 11 20, 512 
 
 T. Hasklns li 884 
 
 V.James 1571,744,818 
 
 Cotton V. Lane 1 742, 11 675 
 
 V.Ward 1 f»7 
 
 Cottrell V. Conklln i 829 
 
 Cottv. People ii 981 
 
 Couch V. Ingersoll 1 696 
 
 V.Meeker 11674,676, 741 
 
 Coulson V. Walton ii 478, 480 
 
 Coundeuv. Clarke .- 11757, 761 
 
 Countz V. Gelger ii 68, 70 
 
 Courcier v. Graham 1 661, 747, 786, ii 467 
 
 Court C. C. v. Newport i 227 
 
 Courteen v. Touse 11 888 
 
 Courtney v. Baker 11 814, 828, 833 
 
 V. Commonwealth 1 685, 11 296, 920 
 
 Cousins V. Brown i 865 
 
 Covanhovan v. Hart 11 910 
 
 Coveney v. Tanahill 1 139, 157 
 
 Covdnheren v. Hart 11 910 
 
 Coventry v. Barton 11 8 
 
 Coward v. Odingsale .1 698 
 
 Cowden V. Reynolds t .. 11 503, 982, 983, 989 
 
 Cowdln V, Stanton 1 747 
 
 Cowles V. Carter 11 47 
 
 V. Coe 1 665 
 
 V. Harts 114, 7, 44 
 
 V. Wilcox : 1 127 
 
 Cowling V. lilgginaon i 651 
 
 Uowne V. Douglas 1 680.^ 
 
 Cowper v.>Cowper i 638, 701, 11 564 
 
 Cox V. Alllngham 11 514 
 
 V. Balrdt 1323 
 
 V. Bennett 11 666, 694, 6f6 
 
 V. Bowman's Lessee 11 688 
 
 V. Davis 11 493 
 
 V. Fenwlck 1 685 
 
 v: Gordon i 185 
 
 V. Jagger 11 401. 409 
 
 v. Matthews i 664 
 
 V. Morrow 1 624 
 
 V. Norton 1 396, 11 922 
 
 V. Pearce's Trustees 1 390; ii 213. 224 
 
 V. Reld 11286 
 
 V. Strode : ii 128 
 
 V. United States li 301 
 
 v.Way 1 43 
 
 V. White 11 74, 109 
 
 V. Williams i 125, 131 
 
 Cox's Adm'rs v; Hill ii 938 
 
 Coxe V. Ewing i 85 
 
 v. Field 111003 
 
 V. Gullck 1 666 
 
 V. Lundy 11 410 
 
 Coxon V. Lyon ;i 868 
 
 Cozzens v. Stephenson il 650 
 
 V. Whitaker ii 666, 672 
 
 Crabtree V. Clark 1 607 
 
 Craft V. Webster 11 687 
 
 Craib et ux, y. D'Aeth 1 480 
 
 Craig V. Bagby li 115 
 
 V, Baker 1 442, 462 
 
 V. Brown i 868, 11 420, 424 
 
 V. Craig 1520 
 
 V Feland 11 266 
 
 V. Martin 1 697, 698 
 
 V. Ward 1 826, 11 15 
 
 Craig's Lessee v. Vance 11 587, 588 
 
 Cram v, Morris' Lessee ii 500 
 
 Cramer v, Bradshaw 1 848 
 
 Cranburn's Case ..-.-. 11 965 
 
 Crane v. Astor 1 613 
 
 V. Dygert 1 865 
 
 V. Gough 1517 
 
 V. Morris' Lessee, . . ,i 819, 478, 667, 11 575, 676 
 
 V. Prather 1678, 690, 691 
 
 Cranes v. Field i 462 
 
 Cranston v. Kenny's Ex'rs 11 405 
 
 Crary v. Hall 1 405 
 
 V. Spragne i 206, 330, 390, 391, 393, 394 
 
 Craven v. Shaird 1 374 
 
 Cravens v. Booth .1 466 
 
 Crawford V. Andrews ..1 778 
 
 V. Jarrett'B Adm'r ■ • li 724 
 
 et al. V. Morrell . . .■ i 848 
 
 V. Spencer 11 714 
 
 V. The State 11584, 687 
 
 V. Ward i 390, 391, 392, 393 
 
 ■ Crawley v. Jackson ,...,■.. i 332 
 
 Cray V. Hall.-. 1405, 539 
 
 Crayton V. Collins i. 1328, 331 
 
 Credit v. Brown , 1 408 
 
 Creed v. Hartman i I82 
 
 Vol. I. 
 
 13a 
 
XCVUl 
 
 TABLE OF CASB8 CITED. 
 
 Creed V. White i57S, ii 552 1 
 
 Creery V. Holly ii 668, 687 
 
 Creigv. Talbot ii 694 
 
 Crenshaw v. TennesBce (State of) ii 1 13 
 
 Crepps V. Burden ii 160, 159 
 
 Crerar v. Socio ii 885 
 
 Cringnm v. Nicholson ii692, 695 
 
 Crips V. Talavande , ii 25 
 
 Crisp V. Bellwood 1 660 
 
 V. Walpole ii 609 
 
 Crocker v. Pierce i 464 
 
 T. Whitney i 483 
 
 Crockett v. Lashbrook i 468, ii 114 
 
 V. Morrison 1423, 462 
 
 V. Eouton ii 115, 116, 124 
 
 Crofoot V. Allen ii 404 
 
 Croft V. Arthur i 126, 130 
 
 V. Kirkland's Syndic ii 106 
 
 V. Pawlet 1 610 
 
 Croftonv. Ormsley i 698 
 
 V. Poole i 435 
 
 Cromwell V. Selden 1666, ii 139 
 
 Crooker v. Bragg i 654, 657 
 
 Crosby v. Bergen 1140, 148, 158 
 
 T. Percy ii 494, 497 
 
 V. Wood ■. Ii633 
 
 Cross V. Cross „i 254, ii 254, 630 
 
 V. Johnson i 818 
 
 T.Lewis 1649, 653 
 
 T. Lewis 1650 
 
 V. Norton i 701 
 
 Cross* Adm'rs v. Terlington . . . rT i 457 
 
 Crossland's Ex'rs v. Murdock ii 79 
 
 Crossman v. Fuller ii 675, 676 
 
 CroBwell V. Byrnes ii 337, 349 
 
 Crotzer V. Bussell ii 22 
 
 Crouch et ux. v. Evoleth i 641 
 
 Crousden v. Leonard ii 173, 186, 187 
 
 CrouBden v. Clarke ii 762, 773 
 
 Crouse v. Duffield ii 49.3, 496, 500 
 
 V.Miller 1215, ii 961 
 
 Crousillatv. Ball ii 174 
 
 Cfounse V. Wemple i 650 
 
 Crow's Case i 706 
 
 Crowder v. Hopkins ii 480 
 
 Crowell y. Kirk ii 490, 492 
 
 Crozer v. Leland i 44, 983 
 
 Crozierv. Hodge ii 429 
 
 Crummen v. Cavenah ii 69 
 
 Cubitt T. Porter i 646 
 
 GucuUu T. Louisiana Ins. Co Ii 172 
 
 Cuff V. Penn ii 680 
 
 Calbreathv. Gracy ii 176 
 
 Culver v. Haalem i 785 
 
 Cull v. Sarmlne ■ i 863 
 
 V. Stowell i 695 
 
 Cumberland v. Codringtou i 609 
 
 Bankv.Hall i 607 
 
 Pumborland (Duke) v. Graves i 640 
 
 Cumming v. Sibley i 865 
 
 CummmgB V. Fisher i l'.;0, 361, 686 
 
 Cummins v. Leeds ii 813 
 
 Cundell v. Pratt ii 933, 940 
 
 CunlifFev. Setton 11494, 496 
 
 Cunningham v. Pii"'r~[itii~ ii 583, 588 
 
 v. Bucklin 11 20, 129 
 
 v. Freeborn li 69 
 
 V.Kimball 1 850 
 
 V. Knight 1 783 
 
 V. Mitchell 11 371 
 
 V. MorroU 1 696 
 
 V.Tracy iiSlO, 569 
 
 V. Warden ii 675 
 
 Cnpit V. Jaclfeon 1 683 
 
 Curatory. CuUion 1 33 
 
 Curie V. Moor 11 86 
 
 Curley V. Dean 1847,848, ii 401 
 
 Carren V. Connery 11 882 
 
 V. Crawford i 379, 880, 881, 383 
 
 Currie V. Bircham 11 88 
 
 V.Donald 1 129, li 455 
 
 Currier V. Green i 692 
 
 V. Hodgdon , 1 483 
 
 Curry v. Lyles ii 655 
 
 V. Prtnglo 11147 163 
 
 Cnrties v. Fitzpatrick i 682 
 
 Cnrtls V. Belknap 11470 
 
 v. Cisna's Adm'ra ii 117, 132 
 
 V.Cole ii 28 
 
 V. Gibbs 11186, 188 
 
 V. Leavltt 11466 
 
 Curtis V. Groat ; 1153,116, 883 
 
 V.Hall 1610,11603, 663 
 
 V. Ingham i 93, 511, 613, 515 
 
 V. Klesler 1 227 
 
 V. Patton 1 262,361, 5S9 
 
 V. Perry 11 685, 703 
 
 V. Strong 116, 18 
 
 V. Swearlngen Ii268, 365 
 
 V. Wakefield 11 654 
 
 V.Wheeler 1818 
 
 CurtisB V. Barker. .' 11 868 
 
 V. Fay 1 669 
 
 V.Jackson 1627 
 
 Cusack V. White 1 605 
 
 Cushing V. Eice 11 669 
 
 Cushingham v. Philips 11 147 
 
 Cushington V. Phillips 11147 
 
 Cushman v. Bean ii 33 
 
 V. Loker 15, 23 
 
 Cusse V. Ash 1 684, 700 
 
 Cutbush V. Gilbert 1 302, li 256, 882 
 
 Cuthbertv. Lawton 1660, 661 
 
 V. Peacock 11 705 
 
 Cutler V. Carpenter ii 916 
 
 V. Cox 1121, 25 
 
 V. Newlin 1 308 
 
 V. Wright 1 732, ii 4,S0 
 
 Cutter V. Davenport 11 86 
 
 V. Moore i 605 
 
 Cutts V. Haskins 11 89 
 
 V.King ii 44 
 
 V. Spring i 646 
 
 V. United States ii 483 
 
 Cnyler v. Bradt 11 703 
 
 Cuyler V. McCartney i 494 
 
 V. McCartney 1205, 320 
 
 V. Nellis ii 549 
 
 V. Trustees of Rochester 11 144, 164 
 
 r>. 
 
 Da Costa v. Pym 11 498, 615 
 
 V. Villa Eeal il 148 
 
 Da Costar v. Jones 1134 
 
 Dade's Adm'r v. Madison ii 72 
 
 Daggett V. Tallman i 677, 682, 11 904, 905 
 
 Dagley V. Tolferry 1699 
 
 Dam V. Wyckoff 1 759 
 
 Dains v. Prosser i 818 
 
 Daire v. Wycoff 1 760 
 
 Dakln v. Hudson „ il 79, 105 
 
 V. Williams f. 1 696 
 
 Dale V. Livingston 1146, ii 897 
 
 V. Pope li 675, 698 
 
 V. Roosevelt 1 745, 747, ii 454, 684, 6ST 
 
 Daley v. Atwood 1 872 
 
 Dalgleish v. Hodgson ii 173 
 
 Dalzell V. Timrod 11750 
 
 Damon v, Bryant ii 863, 366 
 
 Dan et al. v. Brown i 189, 496, 11 560, 661, 565 
 
 Dana v. Fielder. ii 709, 755 
 
 V. Hall il 110, lis 
 
 V. King 1 691, 696 
 
 V. Tucker i 168 
 
 Danby v. Rector 1 465 
 
 Dance v. Eobson li 860 
 
 Dandridge v. Corden ii 931 
 
 Dane V. Slallery 11 354 
 
 Dangerfleld's Bx'rs v. Thurston's Heirs li 86 
 
 Daniel V. Ballard ii 73 
 
 v. Bratton 11 688, 661. 663 
 
 v.Gny 1 174 
 
 V.Hill , 1 503, 579 
 
 v. Lnker ii 87 
 
 V. M'Eae ii 670 
 
 V. North 1 649, 659 
 
 V. Potter 1 493 
 
 V.Ray 11 675 
 
 Daniels v. Ball i 646 
 
 V. Conrad il 876, 903 
 
 V. Patterson 1 787, 11 1004 
 
 Darby V. Farrow 1873 
 
 V. Callaghan 1 519 
 
 Darby's Adm'r v. Rice 1 193, 194 
 
 Lessee V. Mayer 1179, 461 
 
 Darden v. Allen 1 686 
 
 V. Geary U 771 
 
 Darling v. Bryant i SAi 
 
 Darnell V. Dickens 11458 
 
 Darst V. Eoth 11 471 
 
 Darmouth v. Roberts 1 814 823, 826 
 
 Darwin v. TJpton [i 649 
 
TABLE OF CASE3 CITED. 
 
 xcix 
 
 DaBhlell v. Attomey-Qenoral ii 749 
 
 Daterv. Wellington 1 166 
 
 Dave V. Mallory U S54 
 
 Davenbagh V. M'Kinnie ii 749 
 
 Davenport v. Gilbert i 502 
 
 V.Mason ii S33 
 
 V. Oiais i 611 
 
 v. Russell i 759 
 
 et al. V. Wheeler i 460 
 
 Davia.v. Eeed 1460, ii 706 
 
 V. Sittig i 174. 252, 259 
 
 Davidson v. Brown ii 864, 867 
 
 V. Gardner i 693 
 
 Davie V. Beardsham '. i 095 
 
 Daviea v. Brown ii 325 
 
 V. Barton 1 440, 454 
 
 V. Cram i 68 
 
 V. Morgan ii 295 
 
 V. Williams p ii 77 
 
 Davis V. Allen i 407 
 
 V. Barr i 102 
 
 V. Baxter ii 304 
 
 V. Benbow i 35, ii 518, 660 
 
 V. Bryan ii 398 
 
 V. Calvert ii 086 
 
 V. Carter i22, 24 
 
 V. Clements 11258,307, 308 
 
 V. Crawford i 696 
 
 V. Cummins 11 S22 
 
 V. Dale 11 896, 899 
 
 V. David 1404, 460 
 
 V. Davis' Ex'rs 1 463 
 
 V. Denbow ii 565 
 
 v. Dinwoody i 83 
 
 V. Estey ii 83 
 
 v. Hall i 470 
 
 V. Havard ii 409 
 
 V. Houston 1 35 
 
 V. Hunt ii 63 
 
 V. Johnson ii 874 
 
 V. Louisiana Tow-Boat Co ii 133 
 
 V. Marlborough (Duke of) i 694 
 
 V. Mason i 603 
 
 V. Maynard ii 375 
 
 V. Melvin ii 813 
 
 V. Moody ii 850 
 
 v. Morgan i 33, 43, 658, ii 295, 298 
 
 V. Nest ii 150 
 
 V. Newklrk i ISO 
 
 V. Oliver i 698 
 
 V. Pierce i 318 
 
 V. PrevoBt ii 510, 512 
 
 V. Reynolds 1537 
 
 • V. Russell i 712 
 
 V. Sherman i 196 
 
 V. Simpson i 687 
 
 V. Spooner. .1 32, 190, 319, ii 519, 643, 505, 560 
 
 V. Spurting ii 70 
 
 V. State i 393 
 
 V. Talcot ii 121 
 
 V. Talloott ii40, 121 
 
 V. Verdrier i 400 
 
 V. Whitesides 1 100, 175, 212, 303 
 
 V. Williams ii 77, 54!l 
 
 V. Wilson ii 1006 
 
 V. Wood 11 4, 13, 123 
 
 Davison v. Bloomer ii 490, 505 
 
 V. Franklin i 457, 483 
 
 v.Minor 168, 73 
 
 DavUn v. Hill ii 070, 740 
 
 Davol V. Davol ii 991 
 
 Davoue v. Fanning i 092 
 
 Davy V. Faw ii 403. 409 
 
 V. Tumor ii 585 
 
 Dawes V. Hoylston 1482, ii SO 
 
 V. Head ii 88 
 
 Dawning v. Gallagher il 587 
 
 Dawson V. Coles i481. ii 126 
 
 v. Kittle ii 653, 720, 755 
 
 V. Norfolk (Duke of) i (i.-)9 
 
 Dayv. Alverson i0"16, 647 
 
 V. Ridley i 633 
 
 v. Sampson ii 863 
 
 V. Trigg ii733 765, 782 
 
 Dazy V. MTlTs i 180, 485 
 
 Deaking V. Hollis ii 060 
 
 Daalty's Heirs v. Murphy ii 701 
 
 Dean V. Carnahan ii 631 
 
 v.Dean i 685, ii 649, 701 
 
 V. Dazey 1393 
 
 V. Qridley 1218,111005 
 
 Dean V.Hall ii 670 
 
 V. Maspn 11066, 607 
 
 V. Thornton . . .'. 1 65 
 
 V. Williaais ii 81 2 
 
 &c. of Ely V. Caldecott i 173 
 
 Dearborn V. Cross 11093,695, 696 
 
 Deardorf V. Hildebrand i 190 
 
 Deasv. Darby 1 372, 380 
 
 De Benger's Case ii 891 
 
 De Bennoville v. De Benneville ii 806. 812 
 
 Debezev Mann ii 700 
 
 De Bow V. People ii 301, 341 
 
 De Camp v. Feay i 697, 698 
 
 De Caters V. Le Bay de Chaumont i 692 
 
 Decker v. Furniss ii 804 
 
 V. Livingston i 675, 854 
 
 V. Matthews 1 603, 580 
 
 De Conche v. Savatier 1 080, 686 
 
 Dedrich v. Sewall i 475 
 
 Deering v. Sawtel i 124 
 
 De Forest v. Bacon i 323 
 
 V. Fnlton Fire Ins. Co ii 726 
 
 V. Hunt i 602 
 
 V. Parsons ii 73 
 
 V. Strong iil31, 164 
 
 De Freest v. Bloomingdale 1 676 
 
 De Graff V. Amer. Linen T. Co i 598 
 
 De Graffenreid v. Mitchell i 603 
 
 De Haas' Lessee v. Galbreath 1 391 
 
 De Haven v. Henderson ii 512. 517 
 
 Dehuffv. Turbett 1 33 
 
 De Kentland v. Somers 1 869 
 
 De La Courtier v. Bellamy i 868 
 
 Delacroix v. Bulkley ii 693 
 
 Delafleld V. De Granw ii 1004 
 
 V. Hand ii 340, 418, 420 
 
 V. Parish i 785 
 
 Delahoussaye v. Delahoussaye i 177 
 
 Delamater V. Pearce i 406 
 
 De La Mott's Case i 955 
 
 Delancey's Lessee V. M^Keen 1061,604, 667 
 
 Deland v. Richardson ii 137 
 
 De Lane v. Moore i 578, ii 351 
 
 Delesline v. Greenland i 619 
 
 De Lisle V. Priestman 11983, 988 
 
 Delmarc v. Rebello ii 752 
 
 Deloach v. Turner i 602 
 
 Deloah V. Worke ii 361 
 
 Delogny v. Rentonl i 430 
 
 V. Smith 11 375 
 
 Delong V. Stanton ii 33, 609 
 
 Deloralne (Earl of ) V. Browne 1691,694, 703 
 
 Demarest V. Darg 11144 
 
 V. Wynkoop 1 668, 679, 080 
 
 Demeyer v. Legg ii 575 
 
 Demeyn v. Legg 1 673 
 
 Demilt V. Leonard ii 20i> 
 
 Deming's Case i 34 
 
 Demmmg v. Bullitt ii 456 
 
 Dempsey v. Ins. Co. of Pennsylvania ».ii 172 
 
 Demyer V. Souzer 1457, 713 
 
 Den dem Peters V. Hopkinson ii 795 
 
 Den V. Ayers ii 79 
 
 V. Clark ii 206, 687 
 
 V. Dovvnam ii 149, 164, 337, 349, 800, 
 
 475, 535 
 
 V. 'Herring i 704 
 
 V. M'AUister ii 633, 568 
 
 V. M'Sham ii 43 
 
 V. Page ii 764 
 
 V. Pond .1588, ii 301, 513, 517 
 
 V. Van Cleve i 10 
 
 V. Houten ii 493, 505 
 
 V. Vreelandt ii 340 
 
 V. Wright li 365 
 
 ex dem. Baker v. Webb il 634 
 
 Belk v. Love ii 783 
 
 Bickham v. Pissant i 348 
 
 Blair v. Miller i 330, 345 
 
 Brookinc v. White ii 749 
 
 Burgess V. Wilson ii 588 
 
 Chews v. Driver 17, 167 
 
 Colden v. Cornell ; ii 639 
 
 Ely V. Jones ii 875 
 
 Farrar v. Hamilton ii 988 
 
 Gaston v. Mason 1 610, ii 482,. 503 
 
 Hivnks V. Tucker 1 660 
 
 Hattan v. Drew ii 743 
 
 Hunter v. Bryan ii 686, 588 
 
 M'Lindon v. Winfree ii 683 
 
 Mordecai's Heirs v. Oliver 1 468 
 
TABLE OF CASES CITED. 
 
 Dean.ex dem Newcomb V. Downam iiSTS, 976 
 
 Osborn v. Conward ii 645 
 
 Park V. Cochran il 867 
 
 Pickett V. Pickett 1 105, 321, 327 
 
 Popinov. Cook 1 671 
 
 V. M-Alliater i 523 
 
 Proctor V. Leggat li 785 
 
 V. Pool. ii 732, 785 
 
 Eeed v. Schenck ii 783, 804 
 
 Eiddick v. Leggat il 783, 785 
 
 Eidley v. M-Geliee 11 488 
 
 Eobinson v. Barfleld il 586, 588 
 
 Sasaer v. Herring 1 331 
 
 Stevens v. Vancleve 1 315, 604, 
 
 749 
 
 Stith V. Barnes ii 749, 752 
 
 Tate v. Southard i 221 
 
 West V. Pine ii 473, 614 
 
 Lessee of Rogers v. Deaderick's Heirs T. -ii 145 
 
 Deneale v. Archer ii 14 
 
 Deneall v. Stamp's Ex'rs ii 64 
 
 Denison V. Wurtz ii 734 
 
 Denn V. Allen ii 707 
 
 T. Cornell ii 574 
 
 Dennett v. Chick ii 134 
 
 T. Crocker ii 512 
 
 Denning v. Corwin ii 65, 105, 146 
 
 V. Roome ii 296 
 
 Dennis V. Barber 1409,412, 413 
 
 V. Jones i 100 
 
 v.Nonrse... : 1682 
 
 Dennison v. Barber ii 673 
 
 V. Brown ii 674 
 
 V. Hyde ii 39, 44, 198, 339, 429 
 
 T. Otis ii 394 
 
 Denny v. Smith 1 6112 
 
 Denslow V. Fowler ii 333 
 
 Denton V. Hill 11515, 666 
 
 V. Livingston ii 373 
 
 V. M'Kenzie ii 701 
 
 V. Perry 1 820 
 
 Depuyster v. Col. Ins. Co il 883 
 
 De Reimer v. Cantillon ii 698 
 
 De Eosne v. Fairlie 1 127 
 
 Derwort v Loomer i 623 
 
 Descadillas V. Harris i 128 
 
 Deshazo v. Lewis li 694 
 
 Deshon v. Merchants' Bank i 785 
 
 De Sobry v. DeLaistre 1 806, ii 346, 418, 434 
 
 V. Terrier ii 976 
 
 Despard v. Waldbridge 1 464, li 647, 682, 709 
 
 Despeau v. Swindler ii 259 
 
 Deveauz v. Barnwell ii 705, 722 
 
 Devenoge v, Bouverie ii 325 
 
 Devese v. Pontet ii 704 
 
 Dgvon Peerage Case i 256 
 
 Devonshire v. Lodge. ii 726 
 
 Devour v. Johnson ii 128 
 
 Devoy v. Mayor, &c., of N. Y ii 254 
 
 Devoy's Lessee v. Burke 1 135, 166 
 
 Dewdneyv Palmer i 98 
 
 Dewey v. Greene ii 137 
 
 V. Hotchkiss 1 348, 886, 410 
 
 v. Osborne ii 15, 42 
 
 V. Eeed i 607 
 
 De Whelpdale v. Milbnrn i 471, 528 
 
 Do Witt v. Baldwin i 328 
 
 v. Yates ii 706 
 
 De Wolf V. Johnson i 80, 746, ii 682 
 
 V. Eabaud i 74B 
 
 Dewz V. Green i 516 
 
 Dexter v. Adams i 827 
 
 V.Clark li 33 
 
 v. Clemans ii 674 
 
 Dey V. Dox ii 117 
 
 Dibble V. Rogers ii 590 
 
 V. People i 770 
 
 Dibblee V. Best :. 1 867 
 
 Dicasv.Jay 11406 
 
 Dickv. Balch 11583, 584, 587 
 
 Dickey V. Schrelder ii 1009 
 
 Dickenson v. Dickenson ii 649 
 
 V. Kincaid ii 819 
 
 Dickens v. Jones ii 699 
 
 V. McGraw li SO, 452 
 
 Dickerman V. Graves 1 78 
 
 Dickinson v. Smith i 647 
 
 Dickson v. Fisher i 866, il .3.37 
 
 Dieffedorf v. Jones ii 792 
 
 Dietrick v. Dietrick i 768 
 
 Dikev.Lewis ... .11187 
 
 Dillenback v. Jerome. , i 647 
 
 Dillingham v. Estill li 740 
 
 V. Snow i 217, 660, ii 129, 142, 362 
 
 V, United States i 869 
 
 Dillon V. Harris 11 741 
 
 T. Parker ii 1013 
 
 Dilly V. Polhill ., . . ii 414 
 
 Dingle v. Bowman ii 688 
 
 Dingler's Case i 292 
 
 Dinsmore v. Dinsmore .'. . .i 491 
 
 Dismnkes v. Musgrove 1 327, ii 53, 344. 507 
 
 Ditchbum v. Goldsmith 1 134 
 
 Ditcher v. Kenrick ii 815 
 
 Divoll v. Leadbetter 1455 
 
 Dix V. Otis ii 688 
 
 Dixon V. Barclay ii 469 
 
 V. Parker ii 649 
 
 V. Parmelee i 137, 140, 142, 143 
 
 V. Sinclair li 83 
 
 V. Swiggett 1 477, 686 
 
 V. Thatcher ii 42^ 
 
 V. Vaj3 » li 930 
 
 Dixon's Ex'rs V. Eamsay's Ex'rs ii 86 
 
 Lessee V. Mprehead ii 409 
 
 Doane v. Badger 1 826 
 
 Dob V. Halsey i 862 
 
 Dobbs V. Justices ii 519 
 
 Dobbins V. Watkina. 11525, 815 
 
 Dobson V. Laval i 350 
 
 v. Murphy ii 576 
 
 V. Pearce 1 619, li 41, 104, 188 
 
 v. Racey i 693 
 
 V. Waterman ii 782 
 
 Doddv. Norris ii932, 940 
 
 Doddrington's Case ii 782 
 
 Dodge V. Bank of Kentucky ii 603, 611 
 
 V. Israel ii 849 
 
 V. Manning i 484 
 
 V. Morse 1 376, 377 
 
 V. Potter ii 640, 644, 709 
 
 V. Strong ii 108 
 
 Dodge's Adm'r V. Wetmore ii 86 
 
 Dodson V. Simpson i 692 
 
 Doe V. Andrews ii 810 
 
 d. Bacon v. Brydges ii 10 
 
 V. Benyon ii 714 
 
 V. Catamose i 607 
 
 V. Greenlee il 352 
 
 V. Hardy i 577, ii 686 
 
 V. Harris i 858 
 
 V. Holtom i»«719 
 
 V. Jesson i 680 
 
 V. Kett ii 753 
 
 V. Newton ii 611 
 
 V. Perkins 1685, ii 921 
 
 V. Reagan 1 "785 
 
 V. Eoberts ii 766 
 
 V. Eoe il 783, 785, 952 
 
 V. Eosser ii 184 
 
 V. Seaton i 283 
 
 V.Smith 11364 
 
 V. Suckermore ii 699 
 
 V. Wallinger ii 699 
 
 ex d. Arden v. Thompson ii 783 
 
 Ashforth v. Bower ii 735 
 
 Baggelly V. JOnes i 312 
 
 Banning v. Griffin i 263 
 
 Barnes v. Provoost ii 719 
 
 Barrett v. Kemp i 755 
 
 Batten v. Murless i 666 
 
 Beauland v. Hurst i 672 
 
 Bowerman v. Sybourn 1 6'TO 
 
 Burden V. BurviUe i 611 
 
 Burrow v. Eeade i 647 
 
 Campbell v. Eoe 1 607 
 
 Carr v. Billiard 1 646, 664 
 
 Chalder v. Ford ii 658, 084 
 
 Chevalier v. Huthwaite ii 762 
 
 Chichester V. Oxenden 11775 
 
 Church V, Perkins il 918 
 
 Clinton v. Campbell, i 663, 667, ii 471, 476 
 
 V. Phelps ii 471, 476 
 
 Courtail v. Thomas 1 137, il 815, 897 
 
 Curtis V. Spitty ii 629 
 
 Daggett V. Snowdon ii 793, 795 
 
 Davidson v. Barnard ii 682 
 
 Davy v. Haddon i 218, 360, ii 106 
 
 Eberall v. Lowe i 666 
 
 Byre v. Lambly 1 459 462 
 
 Fenwick v, Eeed 1 662, 668 
 
 Fisher V. Prosser , .,..■ 1 662 
 
TABLE OF CASES CITBD. 
 
 CI 
 
 Doe ex d. Fleming v. Fleming i 251 
 
 FraaciB v. Jesppn i 680 
 
 Fatter V. Kaudall 1^9, 259 
 
 Gamona v. Knight ii 661, 662 
 
 George v. Jesson i 263 
 
 Gordv Needs ii719 757 
 
 Gore V. Langton ii 782 
 
 Gorges T. Webb i 611 
 
 Gwyn et al. v. Stokes et al 1 126 
 
 Hall T. Benson ii 794 
 
 Harding v. Cooke i 646 
 
 Harrop v. Cooke i 668 
 
 V. Harvey i 577 
 
 Hayter v. Joinville ii 723 
 
 Hemming v. WiUetta ii 400 
 
 HiggB V. Cockell . . . : 1 43, II 632 
 
 Hobbav. Cockell i 43 
 
 Hogg v. Tindale ii 885 
 
 Howell V. Lloyd i 670 
 
 Hughes v. Dyball i 646 
 
 Human v. Pettet i 194, 196 
 
 Ingram v. WatMns 1 104 
 
 Jackson y, Comm'rs, &c i 43 
 
 Jacocks V. Gilliam i 366 
 
 James V. Price 1 813 
 
 Jersey T. Smith ii 748 
 
 Johnson v. Johnson ii 49T 
 
 Jones V. Fulgham i 7l4 
 
 Reams v. Sherlock ii 658 
 
 Knight V. Nepean ii 209 
 
 Lemon v. Church ii 472 
 
 Lewis V. M'Farland ii 86 
 
 Lloyd V. Bvans i 433, ii 309 
 
 V. Passingham i 392, 734 
 
 Marstou y. Butler i 609, 668, 671 
 
 Milner v. Brightwen i 668, 670 
 
 Morgan v. Morgan ii 757, 778 
 
 Mudd V. Snckermore ii B97, 611 
 
 Oldham V. Wolley ii 484 
 
 Oxenden v. Chichester ii 765 
 
 Patteshall T.Turford 1348,598, 603 
 
 Pearson V. Ries ii 544 
 
 Peters v. Hopkinson ii 794 
 
 V. Watkina 1133,133 
 
 Preedy V. Holtom ii 736 
 
 Putland V. Hilder i 650, 651 
 
 Eiley v. Million. . . ; i 603 
 
 Roberts v. Roberts ii 685, 689 
 
 V. Hannaway ii 689 
 
 Smith V. Cartwright 1 310 
 
 T. Galloway ii 738, 782 
 
 Spicer v.iea ii 794 
 
 Stansbury V. Arkwright i 194, 198 
 
 Stroder v. Seaton i 133 
 
 Sutton V. Ridgway ii 150, 976 
 
 Tarrant V. Hellier i 699 
 
 Taylor V. Roe 1 236 
 
 Templeman v. Martin ii 719 
 
 Teynham v. Tyler ii 1001 
 
 Thanet v. Gartham ii 146 
 
 Thompson v. Gibson i 817 
 
 Trustees of N. C. University v. Roe, i 409 
 
 Tucker y. Tacker i 818 
 
 Dbele v. Kilner ii 582 
 
 Warren V. Bray 1256, ii 288 
 
 Waymiin v. Naylor ii 588 
 
 Westlake V. Westlake ii 762 
 
 Wheeldon V. Paul ii 507 
 
 Wilkins v. Cleveland i 667 
 
 Wood v. Morris i 576, 577. 
 
 i Woods T. Kennedy ii 1002 
 
 ' . Wyndham v. Grazebrook 1 284 
 
 Dogan V. Seekright ii 645, 783 
 
 Doily V. Joliffe ii 366 
 
 Doke V.James 1166,11103, 414 
 
 Dolbier v. Wing ii 402 
 
 Dole V. Lyon i 761 
 
 Dolfus V. FroBch ii 115 
 
 Dolman v. Orchard i 193, 200 
 
 , Dominick v. Sayre ii 714 
 
 Donaldson v. Jude ii 361 
 
 v. Philips ii 464 
 
 y, Thompson 11 172 
 
 v. Winter 41 SO, 352, 461 
 
 Doncaster (Mayor of) v. Day .i 897 
 
 Donelson v. Taylor 1 4, ii 618 
 
 ijonnelly v. Whitney ., ii 1002 
 
 Donohoo V. Brannon ii 355, 443, 444 
 
 DooUttle V. Blakesley ii 719 
 
 V. Doolitttle 11 139 
 
 V. Bddy i 786 
 
 Doolittle V. Lewis .-..-.u 86 
 
 Doorv. Geary "'73?, 782 
 
 Doran v. Shaw ■- .".•Ail' SS„ 
 
 Doran's Lessee v. Kehoe u 87b, 96S 
 
 Dorian V. Sammis -.--.iJ' ??" 
 
 Dorlon v. Douglass i406, 409 
 
 Dormer v. Fortescue i "90 
 
 Dorr V. Munsell il b86 
 
 V. Osgood 11 875 
 
 ■ V. Union Ins. Co ill8,ii 178 
 
 Dorrity V. Russell i 785 
 
 Dorsetv. Manchester ii 127 
 
 Dorsey v. Dorsey 1 819, 11 517, 532, 597 
 
 y. 'Eagle 11 791 
 
 V. Gassaway 1142, 62, 63, 666, 683 
 
 Doss V. Cooper , 1697, 698 
 
 Doty V. Brown i 581, 11 21, 40, 124, 144 
 
 v. Gorhametal 1 693 
 
 Dougal y. Wilson 1 649 
 
 Dougherty v. Campbell ii 1010 
 
 y. Dorsey i 49 
 
 V. McWorter ii 401 
 
 v. Snyder ii 430 
 
 Dougherty's Case 11 942 
 
 Doughty V. Fawn ii 426 
 
 y. Hope V 1611,11137, 257 
 
 Douglass V. Davie : 1433, 434 
 
 V. Eyre ii 286 
 
 y. Forrest ii 200 
 
 V.Hart 1 377 
 
 y. Holbert i 33 
 
 y. Howland i 528 
 
 V. M'Allister ii 1000 
 
 y. Tousey 1 764 
 
 v. White i 475 
 
 V. Wickwire i 681, ii 40 
 
 V. Tallop ii 351 
 
 Douglass' Lessee v. Sanderson 1 33, 349, 260 
 
 Dow V. Hinesman ii 298 
 
 v. Sawyer 1 336 
 
 y.Tuttle ii 675 
 
 y. Warren ii 28 
 
 Dowdall V. Lenox 11 682 
 
 Dowell V. BurrUl's Adm'r ii 1005 
 
 v. The SteamTT. Co i 812 
 
 Dowling V. Finnigan 11 923 
 
 Donnery. Button 1 516 
 
 V. Eowell 11 916 
 
 Downer y. Button i 516 
 
 Dovmes y. Grazebrook i 893 
 
 Downey y. Mech. & Farm. Bank ii 134 
 
 V. Young i 789 
 
 Downing y. Baldwin ii 996 
 
 y. Gallagher 11 586, 686,- 687 
 
 Downing's Estate 11 78, 81, ' 83 
 
 Downs V. Lyman 1 197, 318 
 
 ' y. Webster ii 675 
 
 Dowrey y. Logan i 678 
 
 Dowsetv. Sweet ..11761, 771, 773 
 
 Dowsy. Perrin 1 616 
 
 Doyle V. Blake 11 753 
 
 y. Sleeper i 322, 11 68, 701 
 
 V. Wiley ,11 653 
 
 Dozier V. Doyce ii 903 
 
 y. Joyce ii 903 
 
 Drabble v. Donner , . . ii 538 
 
 Drake v, Drake ii 725 
 
 v. Henley i 136 
 
 V.Mitchell 11 134 
 
 v. Rogers i 701 
 
 V. Watson 1 851 
 
 Drake's Adm'rs v. Vaughan 1 34 
 
 Case i 863 
 
 Drane v. Hodges ii 409 
 
 Drangnetv. Prudhomme 1 713, 816 
 
 Draper V. Arnold 1713,11 53 
 
 V. Garratt i 842 
 
 V. Snow ii 716 
 
 Drayton v. Drayton ii 723 
 
 v. Marshall , ii 63 
 
 y. Wells i 179, 394, 395, 396, ii 172 
 
 Dreeback v. McArthur ii 474 
 
 Drewv. Drew ii 640, 709 
 
 y. Dumborough ii 621 
 
 V. Wadleigh ii 469 
 
 v. Wood il 904 
 
 Drewry v. Twiss i 858 
 
 Driggsy. Rockwell i 131 
 
 Drown v. Smith i 456, 843, 868 
 
 Drowne y. Stimaon i 40 
 
 Druce V. Davison u 782 
 
Cll 
 
 TABLE OB" CASES CITED. 
 
 DramT. Simpson's Tjesseis 1 32 
 
 Driimmond V. Hyams i 330 
 
 V. Magruder ii 42B 
 
 Dr. Sherard's Case i i ti04 
 
 Da Belloix v. ..d. VVaterpark i Ii(i2, S82 
 
 Daberly V. GunainK i 181, ii S61, S()2 
 
 Dublin V. Chadbourn ii 79 
 
 Case ii 640 
 
 Dubois V. Baiter 1785, ii 613, 755 
 
 V. Beaver i 843, 854 
 
 V. Dubois ii 78. 81, 371 
 
 Dubois' Lessee V. Newman i 177 
 
 Diiclier V. Gray i 1)85 
 
 Duckham v. Smitb i 825 
 
 V. Wallis i 329, 330 
 
 Dnooign v. Shreppel i 379. 384 
 
 Duddinprton v. Uilson i 128 
 
 Dudley v. Grayson i 263, 6l)4, ii 29S, 443 
 
 V. Staples ii 144 
 
 V. Sumner 1 747, ii 494, 506, 585, 587 
 
 Duerv. Boyd ii 409 
 
 Duerhagan v. U. S. Ins. Co ii 1009 
 
 Duff V. Ivy ii 667 
 
 Duffy V. People i 553 
 
 Dnffleldv. Brindley il 588 
 
 V. Creed _. . i 682 
 
 V. Cross i 44, 419 
 
 V. Orrell i 310 
 
 Duguid V. Ogilvie i 675 
 
 Duins V, Donovan ii 280 
 
 Duke of C. v. Graves i 264, 040 
 
 Dumas v. Powell 11560, 664 
 
 Dunbar v. Bcale i 434 
 
 V. Jumper i 863 
 
 V. Parks 1 134 
 
 v. Tredennick i 690, 691 
 
 Duncan v. Beard ii 470, 478, 499, 600, 618 
 
 V. Duboys ii 273, 342, 4.33 
 
 V. Duncan ii 752, 755 
 
 V. Heimes ii 4 
 
 V. Lyon ii 108 
 
 V. M'Callongh i 463, ii 882 
 
 V Spear i 646 
 
 V. Thomasin ii 862 
 
 Dnnckel v. Wiles ii 1006 
 
 Dancunmon v. Hysinger* ii 427 
 
 Dunham v, Balcer ii 666 
 
 V. Baxter ;...i 712 
 
 V. Daniels i 621 
 
 V. Dey ii 73D 
 
 v.Riiey ii 334 
 
 V. Simtnons i 785 
 
 V. Williams 11783, 786 
 
 Dnnhi n's Appeal i 785 
 
 D.umpv. Bill i 678 
 
 V. Patterson i 713, ii 1000 
 
 V. Thompson ii 549 
 
 V. Waldo ii 234, 316, 331, 419, 434, 513 
 
 Dunlop V. Muuroo ; i 826, ii 549 
 
 Dunn V. Dunn ii 193 
 
 V. Hewitt i 669, 579, 539, ii 511, 672 
 
 V. Murray ii 411 
 
 V. People i 565 
 
 V. Slee 1301, 3J3, 536 
 
 V.Thomas i 81)6 
 
 Dinning v. Say ward i 433 
 
 Danravjn (Birli v. Llewellyn i 237 
 
 Dupleijis V. Kennedy ii 281 
 
 D,lpru3 V. M' Donald li 700, 737, 747 
 
 V. State ii 223 
 
 Dupuy V.Gray '. 11663 
 
 Diirantv. Starr i 21) 
 
 D.ir^ n V. Ireland ii 672 
 
 Dirlian (Bishop) v. Hunt ii 392 
 
 Dark3^ V, L-jland ii 333, 52:), 891 
 
 D itc^Bss Cotton Manufactory v. Davis i 5S3 
 
 Duttoa V. Tracey i 7'i3. il S'ij 
 
 V. Woodman iiS)n, i)ll 
 
 Duval v.nibl) 1 633, ii Ojll, (W!i 
 
 V. r..-33n ii III 
 
 v. Medrart ...1 407 
 
 ct iix. V, Coveahoven 1 520, ii 585, ri92 
 
 Duval v. Ellis ii 192, 317 
 
 V. Waters .-.. ii 6^6 
 
 Dwightv, nrowu i 31, 331, 37T, .38T, 301 
 
 v. Pomroy ii 633, '(OO 
 
 V. St. John ii 108 
 
 Dwiuelle v. Larabio... ii 53D. 653 
 
 Dwinel v. Pottlo 1 833 
 
 Dwycr V. Collins 1 157 
 
 V. Lysaght 11706 
 
 Dyerv. Cady 1403 
 
 V.Dyer i 611 
 
 v. Flint i...il 273 
 
 V. Hargrave i 697 
 
 Dygert v. CopernoU ii 395 
 
 V. Platts ii 783 
 
 Dj'kemau v. Mayor. &c ii 136, 339 
 
 Dykers V. Townsend 1815, 825 
 
 Dvose v. Dyose ii 763 
 
 Dyson v. West's Ex'r i 3'i2 
 
 V. Wood ii 393 
 
 B. 
 
 Eager v. Atlas Ins. Co ; ii 728, 7-31 
 
 V. Commonwealth i 680 
 
 Eagle Bank v. Chapin ii 545 
 
 V. Rigney i 831 
 
 Eagle Fire Go. v. Lent ii 126 
 
 Eagleton & Coventry v. Kingston ii 597 
 
 Eakin V. Brown ii 8a3 
 
 Earl V. Camp ii 363, 364. 374 
 
 V. Reed i 386 
 
 V. Sawyer 1 336. 386 
 
 ex d. Goodwin v;* Baxter i 666 
 
 Early V. Bowman i 790 
 
 Earthman's Adm'r v. Jones.. il 188, 192, 193, 196, 197 
 
 Easly V. Eakin i 373, 378 
 
 East V. Chapman ii 930, 9.36 
 
 Eastbnrn V. Stephens i 749 
 
 Easterbrookv. Hapgood.. 11370 
 
 Easterday V. Kilbom i 17 
 
 Eastman v. Burleigh ii 407 
 
 V. Monlton: i 6, 376, 380, 381, 383, 383 
 
 V. Tuttle '. i 436 
 
 V. Winship i 82 
 
 Eastmore v. Curtis ii 368, 371, 374 
 
 Easton v. Calender ii 129. 142 
 
 Eastportv. East MacMas ii 390 
 
 Eaton v. Aspinwall i 598 
 
 v. Benton ii 705 
 
 V. Campbell 11513, 587 
 
 V. Honghton ii 1001 
 
 v. Lyou 1698 
 
 V. Sanford i 630 
 
 Eaves v. Henderson ii 675, 676 
 
 Bocleston v. Petty i 522 
 
 Eckford V. De Kay i 34 
 
 Eddy V. Faulkner ii 301 
 
 Edgar ads. Brown ii 507 
 
 V. Robinson ii 511 
 
 Ed^e V. Salisbury ii 713, 752, 773 
 
 Bdgell V. Bennett i 83 
 
 Elgerton v. Page i 643 
 
 Edgillv. Stanford ■ ii 743 
 
 Edginton v. Nixon ii 331, 543 \ 
 
 Edle V. The East India Company 11 729 
 
 Bdmiston v. Schwartz :ii 341 
 
 Edmonds V. Pearson ; ii 8^3 
 
 V. Rowe 116, ii 873 
 
 Edmunds v. Downes 1 633 
 
 Edmundson v. Hartley i 702 
 
 Edmonstone v. Hartshorno ii 533, 849 
 
 Edrington V. Harper 11632. 719 
 
 Edson V. Watson i 469 
 
 Edward Althnm's Case ii 763 
 
 Edwards V. Bibbler 1 671 
 
 V, CiirroU i 09D 
 
 V. Cooper ii 350 
 
 V. Dick i 119 
 
 V. Etheriugton 1441 
 
 V. Hundley i 697, ii 687 
 
 V. M'Counell ii 40 
 
 V. Morgan L693 
 
 V. Nichols T 35 
 
 V. Piiriiy ii 492 
 
 V. Pitt.« 183, 86 
 
 V. Ricliird ii 636. 749 
 
 V. Sherrntt 1 730 
 
 V. Stewart ii 121 
 
 Eels V. Finch i 481 
 
 Efiior V. Shiw il 66!) 
 
 R;l)srt V. Wicker i 874 
 
 E;g V. Baruett i 676 
 
 Ejgloston V. Speko i 523 
 
 Rickev.Nokos 11.33,142,143 
 
 Eisenhart v. Slaymaker ii 343, 330, 5 14, 815 
 
 Eilns v. Hadley ii 531, 343 
 
 Ellv.mk's Ex'rsv. Burt i .327 
 
 Eld v. Gon-hiim ii 342, 428 
 
 Eldorv. Elder ii698, 700 
 
 V. Morrison il 154 
 
TABLE OP CASES CITED. 
 
 cm 
 
 Elder v. WarfieW i 447 
 
 Eldred v. Sexton i 21s 
 
 Eldridge v Knott i 0(il 
 
 Elliot V. Carneal i hub 
 
 V. PiersoU i 1S8, 250, ii 53, 129, 161 
 
 Elliot's Lessee v. Bonnet ii 67li 
 
 EUiottv. Crisp ii 803, 8U4 
 
 V. Armstrong ii 702 
 
 V. C:ro()lc'8 Adm'r ii 361, 3B4 
 
 V. Gibbons i 485 
 
 V. Merrymm i Hill, li!l!), 700 
 
 V. llay ii CG, 100, 201, 274, 42(i, 420 
 
 Ellis V. Ellis ; 1584, ii 853, 270, 700 
 
 V. Francis ii 158, 30J 
 
 V. Hatfield ii 490 
 
 V, Saltan 1134, ii 039 
 
 V. Willard 1475, ii 663 
 
 Ellison V. CooksoQ ii 705 
 
 V. Mofl'at i 584 
 
 V. Stevenson ii 813 
 
 Ellmalcerv. Bnckley ii S7S, 900 
 
 Elmore v. Mills ii 421, 43^ 
 
 Ellsworth V. Buclcmyer ii 722 
 
 Ellworthy V. Bird i 604 
 
 Elmendorfv. Carmiciiael ii 274 
 
 V. Harris ii 405 
 
 V. Taylor 1687, 688 
 
 Elmore v. Austin ii 700 
 
 Elms V. Olieves i 330, 331, 376, 884 
 
 Elseev. Smith ii 130, 147 
 
 Eiaey v. Metcalf ii (iijl 
 
 V. Metcalf i 64;J 
 
 Elthingv. Scott , i 441, 508 
 
 Elton V. Larkins ii280, 903 
 
 Eivin V. l>rammond , 1 865 
 
 Elweev. Sutton ii 607 
 
 Elwell V. ])odgo i 598 
 
 V. Dodge 1737, ii 1004 
 
 V. M'Queen ii 33, 34, 109 
 
 Elwood V. Deifendorf i 484 
 
 V. Klock ii 691 
 
 Ely V. Adams ii 668, 719 
 
 V. Ely i 607 
 
 V. Thompson ii 129 
 
 Embree v. Kills i 463 
 
 V. Hanna ii 186 
 
 Embnry v. Connor 1581, ii 40, 144 
 
 Emeric'k v. Barley 1 120 
 
 Emerson v. Fish '. ii 529 
 
 V. Thompson i 483 
 
 V. Towle ii 375 
 
 V. TTptou il 377 
 
 V. Wiley 1 651 
 
 Emery V. Berry ii 428 
 
 V. Chase 1477, 11656 
 
 V. Graycock 1 671 
 
 V. Hildreth ii 76 
 
 V. Hitchcock ii 403, 405 
 
 V. Miner 1 827 
 
 Emriev. Gilbert ii 653 
 
 Knfleldv. Hills ii 906 
 
 Englandv. Bourke-^ ii 55 
 
 exd. Sybnm V. Slade i 670 
 
 Engleman's Ex'rs y. Engleman^ ii 24, 413 
 
 Eugles V. Brnington 11493, 500 
 
 English V. Hannah 11 236 
 
 V. Lane ii 649 
 
 v. Sprague ii 444 
 
 Ennis V. Smith ..11423, 435 
 
 V. Smith Ii 417 
 
 Eno V. Brown 1 432 
 
 V.Del Vechio 1 98 
 
 Enoav. Tattle 1135,323,331. 404 
 
 Ensign V. Webster 1 475 
 
 Bjpes V. Randolph ii B56, 686, 690 
 
 Erbeu v. Lorillard 1 405 
 
 Erskine v Murray i 621 
 
 Erwiu V. Martin ii 806, 818, 869 
 
 V. Maxwell 1 843 
 
 V. Sanndera ii 675, 676, 69B 
 
 V. Smaller 177, 83 
 
 Esmond v. Van Benschoten Ii 693 
 
 Esseltyne v. Weeks i 679 
 
 Eater. Strong ii4, 62 
 
 Estep V. Hutchmau ii4, 13 
 
 Estill T. Patrick 1 637 
 
 v. Tanl il 33, 40, 110, 124 
 
 Estrella (The) 11 886 
 
 Etharidge v. Oaborn 11 116 
 
 Etle V. Sparka ii 645 
 
 EtUss T. Unitsd States Bank U 719. 734 
 
 Etna Ins. Co. t. Aldrich ii 2f5 
 
 Eubank v. Postou i 685 
 
 Eure V. Pittman ii 653, 564, 662 
 
 Eustace v. Gaskins 1 677 
 
 Eustis V. Parker i 43 
 
 Evans v. Beattio i 3C8 
 
 V. Clieshire i 694 
 
 V. Curtis ii 494 
 
 V. Eaton i 99, 858, ii 844, 874, 903 
 
 V. Edmonda i 474 
 
 V. Getting ii 300 
 
 V. Gray i 104. ii 674 
 
 V. Green ii 889, 893 
 
 v.llallock. i 9 
 
 V. Hettick ii 845 
 
 V. Lake i 343 
 
 V. M'KiLsey ii 401, 407 
 
 V. Myers ii 7.S8, 790 
 
 V. Smith i 81, 427, 866, il 952, 950 
 
 V. Sweet ii 522 
 
 V. Tantem 1188,188,192. 426 
 
 V. Thompson ii 094 
 
 V. Tripp ii 783 
 
 Eveleth v. Crouch ii 646 
 
 Evelyn V. Haynea ii 36, 43 
 
 Everitt V. Bveritt 11563, 1 570 
 
 V. Loudham ii 886 
 
 v. Youeils. • ii 110 
 
 Everington v. Langton i 373 
 
 Everly V. Stoner 11476, 480 
 
 Evert V. Barr i 851 
 
 Evertson v, Sutton ii 103, 148 
 
 V. Tappen 1 692 
 
 Ewing V. Ewing ii 1001 
 
 V. Gray 1 813 
 
 V. Sparks i 380 
 
 Ewing's Heirs V. Handley ii 722 
 
 V. Savarv 1263 
 
 Exchange Eire Ids. Co." v. Del. & Hudson Canal 
 
 Co .4 S12 
 
 Ex parte Bollman i 576 
 
 Faber v. Hilliard ii 599, OOS-- 
 
 Eager v. Campbell ii 256. 367 
 
 Fairbanks v. Metcalf ii 060 
 
 Fairchild v. Holly ii 114, 127, 134 
 
 Fairfax v. Montague '. 1681 
 
 Fail-field v. Baldwin ii 95 
 
 Fairlie V. Denton 1 173. 483, 608 
 
 V. Ejastings i 513. 572 
 
 Fairman v.'^acon 132,ii 61 
 
 Fairmauer v. Budd ii 652 
 
 Fakev. Edgerton , ii 868 
 
 Falconer v. Garrison ii 666, 669 
 
 V. Hansen ii 519 
 
 V. Montgomery ii 405 
 
 Pales V. Eeynolda ii 649 
 
 V. Ruaeell ii 565 
 
 Fallia v. Griffith ii 516 
 
 Fallon V. Murray ii 4 
 
 Falls V. Belknap i 43 
 
 V. Torrance 1684,685,686,687, 688 
 
 Falkner V. Gonld .' ii 147 
 
 V. Guild ii 147 
 
 Falmouth v. Moss ii 893 
 
 V. Thomj'a ii 681 
 
 Fanning V. Pritchett ii 72 
 
 V. State : .' 1 297 
 
 Fanny v. Montgomery ^ ii 259 
 
 Fanshaw v. Heard i 826, SW 
 
 Faribault v. Ely ii 540, .545 
 
 Fanners' Bank v. Whitehill 1 348, 349, 350, 5^'6, 
 
 ii 311, 614 
 
 Farmers' Loan & T. Co. v. Curtis 1 598 
 
 Farmers' & Man. Bank v. Ilaight ii 456, 691, 755 
 
 Farmers' & Mech. Bank v. B. & D. Bank. .1 513. 46B 
 
 v. Boraef ii 296, 919 
 
 V. Israel ii 519 
 
 v. Jarvis .11 273. 341 
 
 V. liayner 1 746 
 
 Farmer v. Samuel ii 701 
 
 Farmingham M. Co. v. Barnard 1 350 
 
 Farnam v. Brooks i 685, 688, 688, 691, 692, 693 
 
 Farnandiav. Henderson..... 1 17 
 
 Faruham V. Ingham ii 675. 676 
 
 v. Phillipa ii 70G 
 
 Farnaworth v. Briggs . . .ii 430, 453, 468, 492, 499, 505 
 
 v. Chase ii 788 
 
 V. Sharp 1 607 
 
 Pariinano V. KoigUt .....I 181 
 
CIV 
 
 TABLE OF CASES CITED. 
 
 Farr v. Hemmingway i 482 
 
 Farrand v. Bouofiell ii 860, 865 
 
 Y. Gage 1 379 
 
 Farrar V. Ayi-ea ii 639, 752 
 
 v. Farrar ii 517, '763 
 
 T. Merrill 1 663 
 
 Farrar's Case i 660 
 
 Farrell v. M'Olea i 418 
 
 Farren v. Sherwood i 825 
 
 Farrington et al v. Payne ii 26 
 
 Farwell v. Hilliard ii 53 
 
 Fasaett v. Dorr i 808 
 
 Fathergill's Lessee v. Stover « ii 301 
 
 Fatherly v. Waggoner i 334 
 
 Faulkner, In Matter of ii 137 
 
 Faunce v. Gray i 385 
 
 Faure V. Martin ii 699 
 
 Faw V. Martaeller ii 645 
 
 Fawcett v. Fowles i 405, il 157 
 
 V. WhltehouBe ii 701 
 
 Faxon t. Hollis i 380, 382 
 
 Fay V. Green i 104, 373 
 
 T. GriBwold ii 47 
 
 V. Richardson ii 683 
 
 Fearing v. Ball's Ex'rs ii 86 
 
 Fearn v. Taylor ii 533 
 
 'Feeter v. Hath 1 586, ii 919, 921 
 
 ' Fehl^s Lessee T. Good 14, 714 
 
 Fellowes v. Will^mson i 186, 193 
 
 Fellows V. Hyring ii 254 
 
 V. Fellows i 202 
 
 T. Fellows i 201, 692 
 
 V. Wilson il 940 
 
 Fellows' Lessee V. Pedrick ii 125, 588 
 
 Felter v. MuUiner ii 34, 109, 156, 361, 391 
 
 Feltou V. M'Donald '....'...: ii 310 
 
 Penly v. Stewart i 73, ii 669 
 
 Fennexdem. Thomas v. Griffiths i 677 
 
 Fenn v. Timpson 1 811 
 
 Fenner v. Lewis i 92, 308, 408, 609 
 
 Benton v. Garlick ii 198, 339 
 
 V. Heed i 251, ii 279 
 
 V. White ii 674 
 
 Fentum V. Pocoke ii 692 
 
 Fenwiok v. Floyd's Lessee il 865, 375 
 
 V. Eatliff il 683 
 
 V. Eeed i 668, 681 
 
 V. Sears' Adm'ra ii 86 
 
 V. Thornton i 483 
 
 Feree v. Strome ii 830 
 
 Ferguson V. Broome ii 14 
 
 ¥. Harwood i 863, 867, ii 359, 424, 426 
 
 V. Mahen ,..0 ii 195 
 
 Ferguson's Case i 637, 712 
 
 Fermor's Case ii 95 
 
 Ferrellv. Finch ii 158 
 
 V. Underwood : ii 124, 398 
 
 Ferrer v. Oven ii 414 
 
 Ferrias v. Bush i 692 
 
 Fetter v. Beale ii 26 
 
 Fidler v. Cooper i 166 
 
 Field V. Banker i 520 
 
 V. Biddle i 482 
 
 V. Baton ii 752, 765 
 
 V. Field i 867, ii 68 
 
 V. Gibha ii 187, 192, 194 
 
 v. Gorham ii 674 
 
 V.Hitchcock 1181, 83 
 
 V.Holland ii 72, 73 
 
 V. Mayijr, &c„ of New York i 826 
 
 V. Sanda ..ii 62 
 
 V. United States ii 368 
 
 Field's Assignees v. Moulson i 439 
 
 Filbey v. Talbot ii 563 
 
 Filkina v. Whyland ii 672 
 
 Filliter v. Minchin 11 528, 598 
 
 Filmerv. Gott ii 686 
 
 Filter V. Byre 1 385 
 
 Fllton V. Maccleslleld i 600 
 
 Finch V. Cleveland i 44 
 
 V. Ely ..: ii 811 
 
 V. Grldley ii 803 
 
 V. Keebridger i 656, 658 
 
 Pink V. Cox il 673 
 
 Finlay v. Kirkland il 211 
 
 -Finnv. Commonwealth 1390,894 
 
 Pihney'a Case ... ii 979 
 
 Finney's Ex'rs V. Miller "..11406 
 
 First V. Miller 11 367 
 
 First Baptist Church v. Brookiyn f! liis.'c'o .'.' ' i 787, 
 • ■ iil004 
 
 Firat Baptiat Church &c. v. U. & S. E. E. Co . . 1 572 
 
 Fiachli V. FiacMi ii 120 
 
 Fiah V. Copeland i 601 
 
 V. Dodge i 785 
 
 V. Hubbard's Adm'ra ii 726 
 
 T. Skirt 1 647 
 
 V. TraverB...V i 818 
 
 V. Weatherwax ii 1000 
 
 Fiahbackv. Woodford 11698, 699 
 
 Fisher v. Bailey i 405 
 
 V. Beecker ,t ii 155 
 
 ■TT. Hamden ii 187, 188, 195 
 
 T.Fredendall i 829 
 
 T. Kean Wa, ii 503, 663 
 
 V. Lane 1 .T ii 136, 201 
 
 T.Larick ii 1004 
 
 v. May'sHeira ii 699 
 
 T.Ogle ii 112, 173. 175 
 
 V. Eeynolda ii 929 
 
 T.Willard "... ilOO, 99 
 
 Fiaher's Ex'ra V. Duncan 1 4 
 
 v. Tucker 1499, 688, ii 701 
 
 Flak v. Anderaon ii 65 
 
 V. Gerard i 605 
 
 T.Weston ii 4 
 
 FiBkev. Anderson ii 65, 198 
 
 Fitch V. Hill i 80, 84, 122 
 
 v. Hyde 1390,433, 608 
 
 T. Sutton i 475 
 
 Jitchhom v. Bowyer ii 457 
 
 fFitler t. Byre i 385 
 
 T. Probaaco ii 149 
 
 Fitzgerald t. Fauconberge , i 606 
 
 T. Garwin i 747 
 
 T. Peck ii 699 
 
 T. State 1 55 
 
 Pitzhugh T. Crogan. . . .1 609, 667, 671, 679, 681, ii 127, 
 ^ 128,461 
 
 T. Everiugham ii 333 
 
 V. Hellen ii 375 
 
 T. Love's Ex'r ii 260 
 
 T. Eunyon ii 675 
 
 V. Wilcox ii 266 
 
 T. Wiman ii 653 
 
 Fitzpatriok y. Smith ii 649 
 
 Fitzaimmons v. Newport Ina. Co ii 176 
 
 Flack V. Green ii 549 
 
 Pladong V. Winter i 677 
 
 Flagg V. Mann ii 663 
 
 Flagler v. Pleiea ii 699 
 
 Flanders T. Merfitt 1 640 
 
 T. Thompson ii 146 
 
 Flatbush ATenue, Matter of ii 137 
 
 FlecknerT. U. S. Bank i 516 
 
 Fleetv. Youngs ii 269 
 
 Fleming V. Gilbert ii 693 
 
 T. Kenney i 610 
 
 T. Mulligan i 126, 129 
 
 T. People i823, 462 
 
 V. Slocum i813, ii 672 
 
 V. Wallace .« ii 295 
 
 Fletcher V. Braddyl ii 608 
 
 V. Cavalier ii 281 
 
 T. Jackson ii 563 
 
 V. Pollard i 448 
 
 Fleurot T. Durand i 803, 805 
 
 Flint v. Sheldon ii 649, 682 
 
 Flood T. Thomas I 713, ii 904 
 
 FlowerT. Bolingbroke 1 682 
 
 T. Herbert i 467 
 
 T. O'Connor i 442 
 
 T.Parker ii 186, 197, 198 
 
 Floyd V. Breckenridge i 746 
 
 V. Brown ii 68 
 
 V. Mansell 1679, 680 
 
 V. Mintsey ii 4 
 
 T. Eicks ii 390 
 
 T. Woods 1 175 
 
 Floyd's Helra V. Johnaon'a Heira i 690 
 
 Floyerv. Lavington 1 681 
 
 Floyer'a Lessee v. Simpson i 249 
 
 Foersch v. Blackwell 1 478 
 
 Fogal V. Pirro Ii 476 
 
 Fogler's Leasee V. Simpaon 1 249 
 
 Foggv. Child i 215 
 
 Fohsay v. Ferguaon 1 826 
 
 Foley V. Moeaon 11789, 878 
 
 V. Vantuvl 11662, 668 
 
 Folger V. Hoogland ...ii 881 
 
 Folkard v. Hemmett 1 663 
 
 Folkes v. Chadd i 650, 688, 761 
 
TABLE OF CASES CITED. 
 
 cv 
 
 FollettT. Jeffteys 1 14fi 
 
 Folgom V. BrowQ il 004 
 
 Founercan v. Peyntz ii 752 
 
 Foot V. Tracy i 181 
 
 T. Wiswall ii 1013 
 
 Foote V, Cobl) ii 4!B 
 
 V. I olvin ii 701, 702 
 
 V. Hayne 1 137, 13S, 143 
 
 Footman v. Pendergrass i 83 
 
 Foquet V. Hoadly i SSo 
 
 Forbe3 V. Church ii 1009 
 
 V. M offatt i uns 
 
 V. Perrie's Adm'r i. 142 
 
 V. Wale i! 478 
 
 V.Walker ' 471 
 
 Force v. Craig ii 455i (i(i3 
 
 V. Gowen ii 05, 19S 
 
 V. Gower ii 05 
 
 V.Smith 1732, ii 1003 
 
 Ford V. Campfleld ii 004 
 
 V. Hale 1136, 11493, BOO 
 
 v.Niles 11012 
 
 V. Travis ii 83. 89 
 
 V. Walsworth ii 80 
 
 V. Williams i 401 
 
 Fordyce v. Ford i Ii03 
 
 Forester V. Piffoii ii 491 
 
 Forley ex d. Mayor, &c., v. Wood ii 7».'> 
 
 Forman v. Stebbins i 474 
 
 V. btebi-ins i 732 
 
 Forney v. Uallagher i 300, 11 279 
 
 Forrest v. Forrest i 7.59 
 
 v. Shores ■:.■. . ; ii 056 
 
 V. Trammel .-.".. 1 332 
 
 Fotaaith v. Clark i U. ii 351 
 
 Forayth v. ^.mson i 497. 500 
 
 V. Kreakbanm 1 325 
 
 Fort V. Burch i 379 
 
 V.Gooding 129, 44 
 
 Fort et nx. v. Metayer etal 1818 
 
 Forty V. Imber i 828 
 
 Fos^ate V. Herkimer M. & H. Co i 204 
 
 Foster V. Beals 1079, 332 
 
 V.Brown : — ii 70 
 
 V. Cherry i 577 
 
 V. Davenport ii 2,s:, 
 
 V. Dean i 338 
 
 V. Evans ii 703 
 
 V. Frost . . . ; ii 574 
 
 V. Hall i 132 
 
 V. Hazen ii 392 
 
 V. Hodgson 107!) 
 
 V. Hooper i 852 
 
 V. Jolly ii 675 
 
 V. Jones 11 28 
 
 V. Ross i S08 
 
 V. Shaw, i 391, 393, 390, ii 52. 34ii, 567 
 
 V. Sinckler i 3T2. 3T6, 334 
 
 V. Trull 11 SOU, 377 
 
 V. United States ins. Co 11724 
 
 v. Wood ii 108 
 
 Fotherby v. Hartridge i 634 
 
 Fonke v. Kemp ii B39, TXi 
 
 Foiihtleroy v. Lyle ii 133 
 
 Fowke V. Darnell 1 603, ii 683 
 
 V. Haughtier i 701 
 
 Fowlbe V. Kaybngh 11 377 
 
 Fowle V. Bigelow i 683, 719, 804 
 
 V. Common Council, &c i 1(100 
 
 V. Stevenson i ISli, 403, 463 
 
 Fowler v. Atlantic M Ins. Co . : i 853 
 
 V. lioebe et al i 593, 604 
 
 ' V.Coaler 1 818 
 
 V. .aitna Fire Ins. Co i 714, 759 
 
 V. Fowter 11 703 
 
 V. Leo ii 1004 
 
 V. Macomb ii 1010 
 
 V. Mailer i 450 
 
 V.Norton ..'. i 130 
 
 ads. People I 830 
 
 V. Eayberg ii 376 
 
 V. Savage 1139, 68, 171 
 
 V. Shearer ii 31 
 
 Fox V. L»mbson..i 175, 419, 063, 323, ii.565, 684, 538 
 
 V. Macreth i 092 
 
 V. Palmer i' 000 
 
 v.Eeil ii 409 
 
 V.Whitney i29 128 
 
 V. Wood ii 180, 149, 154, 102, 512 
 
 Fox's Lessee v. Palmer i 129 
 
 Toxcroft V, Nsvlns i WB 
 
 Foyev. Lcighton .-.--■ii fZ 
 
 Franco V. Lncy "816, MS 
 
 Frances v. Ley ™';.i.^ - ' 
 
 Franchot v. Leach n 686, 087, 004. 7b3 
 
 Francis v. Hazelrlsrg's Ex'rs i <i85, ii 62. 07 
 
 V. Ocean Ins. Co 11175,520,534. 561 
 
 V. Washburn 'i *9 
 
 Francis' Case n 'Mi 
 
 Lessee V Washburn .- "474 
 
 Francis & Jones' Case i 84. 135 
 
 Franklin Bank v. Cooper 1 407, 485 
 
 V. Brownson ;i 582 
 
 V. Creyon ii 510 
 
 V. Long ii 654, 066 
 
 V. Pendleton 1 474' 
 
 V. Tallmadge i 870 
 
 Fraryv.Dakin ii 105, 143 
 
 Fraux V. Fraux 1746, ii 526 
 
 Frazer v. Byug ii 706 
 
 V.Moor i679 701 
 
 Frazier v. Carter i 684 
 
 V. Cuehman ? ™i 
 
 V.'.Drayton i 872 
 
 V. Frazier's Ex'rs ii 4, 62 
 
 Frean v. Cmikshanks ' ''^ 
 
 Krear V. Evertson 130, 328, 48S, 4S5 
 
 Frederick v. Gray ii ^^ 
 
 Freejack v. Woodruff 'i ^^^ 
 
 Freelandv. Heron 1439, 451 
 
 V. Howell li ^'-^ 
 
 Freeland's Case 1 703 
 
 Freelovu V. Penuer ii 5E8. 014 
 
 Freeman v. Adams 1 ^^° 
 
 V.Baker ii 2K8 
 
 V. Blevviit ii '*' 
 
 V. Boyle i 898 
 
 V. cornwaii il 130 
 
 V. Heath ' tS 
 
 v.Luckett 1 i?" 
 
 V. Paul 1608, il '■'" 
 
 V. -paulding . 
 
 68 
 
 Freeman's Banlc v. Rollins ., . - . \ li". 
 
 Frecmantle v. Bankea 1' ;°f, 
 
 Freemoult V. Dedln . 11429 
 
 French V. Carhart 1783 ii '}] 
 
 V. Carhart '.... ij °^* 
 
 V. French H f''l 
 
 T. Milliard i' ^°° 
 
 V. Shotwell il' ™* 
 
 V. Sturdivant i! /*' 
 
 Frenkhonser v. Pogne . . i ;;1^ 
 
 Frets V. Frets Ii ^™ 
 
 Freytagv. Powell ..:.. ij fSi 
 
 FriesBV. Rider.. i' , „ 
 
 Fridge V. The Stale ;i 004, 11106, '"-J 
 
 Friedlander v, London .;ibs. Co ii ilL, 
 
 Friend (Mr J.), Case ii,^, S 
 
 Frier V. Jackson . ii ii? 
 
 Frisby v. Hoffufigle ii „,'? 
 
 V. M'Carty 11661,602. °'i* 
 
 Frith v. Barker. . li '^9 
 
 V. Grav i S57 
 
 Frost V. Commonwealth 1 541 . B64 
 
 V. Everett ii '™ 
 
 V. McCari^cr 11 081. 884 
 
 V. Shepleigh 1 684, 11 «ij 
 
 Frostburgh Mining Co. v. N. E. Glaae Co ii 681 
 
 Fry V. Bennett 1601, 793, ii25l, 385, 825 
 
 V. Fry 1 78 
 
 V. Slyfleld 1 37S, 379 
 
 V. Whittingill i 733 
 
 Frye v. Barber i 375 
 
 Fryer v. Bennett 1 001, 820 
 
 Fubber V. Hllllard i 60 
 
 Fuhrman v. Loudon ii 586, 588 
 
 Fuller V. Crittenden 11 662 
 
 V. Fotch 11 129, 157 
 
 v. Hampton (Town of) 1 43, 429, il 981 
 
 v.Holden ii 373 
 
 V. Mattice il .S12 
 
 V. M'Donald ii 670 
 
 V. Prentice 11 823 
 
 V. Roosevelt 1 802 
 
 V. Wheelock 1 32 
 
 FuUiTton V. Harris il 153, 239, 602 
 
 Fnlsom V. Mnssey ... 11 674 
 
 Fnlthorpe V. Foster 1 681 
 
 Fulton V. Heaton ii 1.37, 156 
 
 Bank V. Benedict U958, B58 
 
 V0I.L 
 
 Ua 
 
CVl 
 
 TABLE ©F eASB&. CITBB. 
 
 Fulton Bank v. PUcenix Bank ii 673 
 
 V. Stafford i 739, ii 907, 988 
 
 Funk V. Arnold i 857 
 
 V. M'Keoun i 685 
 
 Fnrmau T. Peay 1 375, ii 512 
 
 Farness v. Cope; ii 287, 289 
 
 FumiBB V Hone ii 728, 732 
 
 Fury V. Smitk 11620,532,562, 897 
 
 Fye V. Greeg ii 383 
 
 Fysonv. Kemp ii 364 
 
 v.Kitton ii 681 
 
 G-. 
 
 Gabayv. Lloyd , 11728,729 
 
 Gadd'v. Bennett i 864 
 
 Gage T. Brewster 11 126 
 
 V. Carrier 11145 
 
 V. HiU 11 20, 124, 165 
 
 V. Smith 1 194 
 
 Gahaganv. People. i96, 452, 632, 542 
 
 Gahan V. Mairigay.. 11 20- 
 
 Gains V. Ann ../ i 174 
 
 Gaines v. Patterson ii 611, 513 
 
 V. E'elf: 1589,11192, 253 
 
 Gajnsford v. Grammar i 132, 138 
 
 Gaither V. Brooks ii 128 
 
 V. Martin 11 653 
 
 T. Welcli ii 64, 126 
 
 Galbraitli v. Black 11 267 
 
 V. GalHraith 1 102 
 
 V. Green 1 407 
 
 T. JTeville ii 184 
 
 Galbraith's Lessee v. M'Gaw ii 107, 124 
 
 Galbrant's Case.... 1 601 
 
 Galbreath v. Eile. 1 733 
 
 Galbreath'B Lessee v. Eicbelberger ii 940 
 
 Gale V. Lindo 11 685 
 
 V. Kemper's Heirs 11 261, 724 
 
 Galen v. Brown ii 709, 721 
 
 Gallagher's Ei'ra v; Eoberts ii 112, 546, 549 
 
 Leasee v. Eogers i 176 
 
 Gallaker's Case 1 752 
 
 Gallatan v. Cunningham 1 608, 692, ii 146, 156 
 
 Gallatin V. Bradford 11 731 
 
 Galloway v; Hughes ii 728 
 
 Galloway's Lessee v. Ogle i 179 
 
 Gait V. Galloway 11 301 
 
 Galtra v. Wolcott i 143 
 
 Galusha v. Hitchcock 11 669 
 
 T. Sinclear 11 586, 688 
 
 Galway v. Barrymore i 707 
 
 Ganaway v. State 11 305 
 
 Gannon v. Anderson ii 401 
 
 Gans V. Frank 1 680 
 
 Gardeuier v. Marcy ii 301 
 
 GardenhireT. M'Daniel ii 688 
 
 V. Parks 11587, 961 
 
 Gardere v. Columbia Ins. Co 11 399, 418 
 
 Gardiner v. Callender ii 676 
 
 Bank,v. Wheaton 11 701 
 
 Gardner v. Astor i 608 
 
 V. Bedford Ins. Co 1 853 
 
 V. Bnckbee ii 19, 21, 40, 45, 116 
 
 V. Campbell ii 366 
 
 V. Clark 1 747 
 
 v; Collins 11662, 662 
 
 V. Corson i 696 
 
 V. Gardner 1466, 746 
 
 V. Heyer 11 723 
 
 V. Hoamer 1521,11372, 377 
 
 V. Lewis ii 428 
 
 V. Newburgh , 1 654 
 
 . V. Preston 1761,778 
 
 V. Tonsey 1 498 
 
 V. Vidal 11 613 
 
 V. Walsh i 863 
 
 Manufacturing Co. y. Heald 11 666 
 
 Qarfleld v. DonglasB 11 124 
 
 Garland v. Goodhue 1 32, 11 669 
 
 V. Harrison 1 188, 832 
 
 V. Elves ii 131 
 
 Garlick v. Eeece ii 108 
 
 V. Sangster ii 867 
 
 Garlock V. Geortner 1675, ii 589 
 
 Garner V. Carroll .. .ii 168 
 
 V. Smith 1^ i 173 
 
 Garner's Adm'r v; Strode 1161, 66 
 
 Lessee v. Johnston . . .1 441 
 
 Qamett V. Ferrand.; 11129 
 
 v._MTOOn;. ■....■.■.".'.. '.it CO, 64 
 
 Garr v. SelSen 1 166 
 
 Garrells v. Alexander 11 597 
 
 Garrett v. Jull ii 692 
 
 , V. Stewart 11656,658, 687 
 
 Garsoh v.' Green' : i 684. 
 
 Garth V. Howard 1 613 
 
 Garvey v. FoWler 1 i 793 
 
 Garvin V. Dawson 1137, 115 
 
 Garwood v. Dennis i 667, ii 569, 674, 684 
 
 Gaskill V. King 1 79- 
 
 Gass V. Stlnson ii 513 
 
 Gates V. Gough 11 14 
 
 V. Winslow ii 674 
 
 Gaugh V. Henderson 1 812 
 
 Gavit's Adm'r v. Chahibers , i 664 
 
 Gay V. Bowen i 500 
 
 v. Gary 1 806, ii 806 
 
 V. Monroe Gen. Sessions ii 105 
 
 V. Wells 11 20 
 
 Gayetty v. Bethune 1 651 
 
 Gayle v. Turner ii 397 
 
 Gaylordv. Gaylord '. 11402, 404 
 
 Gazaway v. Moore ii 666, 675 
 
 Gazely v. Price i 696 
 
 Geachv. Ineersoll 1 820 
 
 Gearing v. The State i 823 
 
 Gebhardt v. Shlndle 19,33 
 
 Geer v. Wmds ii 752 
 
 Gelston v. Hoyt 1 646, ii 55, 178 
 
 V.Marshall li 323 
 
 Gerry v. Post 1 264 
 
 Genter y, Morrison 1 644 
 
 Genetv. Tallmadge ii 699 
 
 Geoffl-y v. Thorn i 678 
 
 Geohegan v. Eckles 11 397 
 
 George v. Bartlett 11 709 
 
 v. Harris 11 676 
 
 V. Joy ii 710, 916, 926 
 
 V. Lbnsley 11 403 
 
 v.Eadford; ii 880 
 
 V.Surrey 11698 
 
 German V. Machin 11700 
 
 German's Lessee v. Gabbald. 1 686, 700 
 
 Germon v. SWartWout ii 130 
 
 Gernonv. Tilder 11 427 
 
 Gerrisb v. Sweetser'. 1 430 
 
 V. Washburn ii 671 
 
 Gerrisb v. Cummings 1 98 
 
 Gervin V. Meredith 1 223 
 
 Gervis v. Grand Western Canal Co ii 378 
 
 Gestv. ESpy..: 1 126 
 
 Geter v. Martin i 372 
 
 Getman'B Ex'rs v. Beardsley 11 701 
 
 Gettman V. Eitz; 1 861 
 
 Geyerv. Agullar 11 172 
 
 Geyger's'Lessee v. Geyger ii 334, 815 
 
 Ghishelen v. Ferguson 1 684 
 
 Gibbes V. Mitchell 11 868 
 
 Gibblehouse v. Mitchell 1 319, 323, 324, 331 
 
 Gibbon v. Featherstonhaugh i 675 
 
 Gibbons v. Livingston ii 187 
 
 v.Morse 1666, 822 
 
 Gibbs V. Champion 1 697 
 
 v. Cook i 698 
 
 V. Osborn 1 607 
 
 Gibson v. Bailey i 385 
 
 V. Chappel i 169 
 
 V. Clark 1 651 
 
 v. Commonwealth 1 290, 291 
 
 V. Crehore 1 608 
 
 V. Culver U726,729 
 
 V.Gibson ; 1786 
 
 V. Gibson 11214 
 
 V. Minet ii 496, 501 
 
 V.Nicholson ...li 127 
 
 V. Peebles ..i 405 
 
 V. Piersoll . ...1 251 
 
 V. Watts i 669, 698. 699 
 
 Giddinga v. Munson 11 653 
 
 Qidnev V. Blake ' ' 1827 
 
 Giffordv. Glfford li 534 
 
 Gigner v. Bayley tl 826 
 
 Gilbert v. Columbian Turnpike Co ii 626 
 
 V.Gilbert :,. 1183 
 
 V.Sheldon 11968 
 
 Gilbreth v. Browne et al 1 593 
 
 Gilchrist v. Cunningham ii 647 
 
 V. Mann 1 848 
 
 Giles V. BAremore i 678 
 
 V.Powell. ' ■ ' ii 880 
 
 Matter of 11 266 
 
 Giles V. OomstOClC ..,.. ' ,'.,U 606 
 
TABLE OF CASBS- eiTBD. 
 
 crii 
 
 Gfleffr. O'Toolo 1 785 
 
 Gilham'sCase i 654 
 
 Gill v; Cole: 11 42 
 
 v; PhllUpB i 264 
 
 T.Shelley ii 639, nfU, 723 
 
 Gillespie T. Moon ,. 11 700 
 
 GjUeapy v. Alexander ii 706 
 
 GlUet V. FaiTChilii , . .11 400 
 
 V. Philips :..ii 400 
 
 V. People 1 165 
 
 Gildersleeve v. Mahoney i 747 
 
 Gilliam's Adm'r t. Perldnson. . .ii 492, 499, 600, 505 
 
 Gilliam v. Moore 1 732 
 
 Gilliland v. Failing i *?1 
 
 GllUland's Lessee v. Hanna 1 647 
 
 GlUigham v. Tibhetts i 485 
 
 Gilly V. Henry i 848 
 
 Gilunan v. Brown 1 684 
 
 T. Honseley ii 188 
 
 T. raton : .le54;.657, 658 
 
 Oilman's Case i 137 
 
 Gilmore V. Bowden 134, 35 
 
 V. Carr 11 53 
 
 V. Holt et al i 814 
 
 T.Morgan i 462 
 
 TWale 11539 
 
 Gllpms V. Consecpia. . .1 461, 733, 739, ii 666, 845, 882 
 
 Gilston T. Marshall ii 323 
 
 Gjnn v. Commomyealth ii 940 
 
 Girting v. Alders ii 130 
 
 Gist T. Cattell'B- Heirs i 683, 685 
 
 V.Wilson il 185 
 
 Gist's Adra'r v. Cockey ii 81 
 
 Gltting's Lessee T.Hall 1-667, 11 476, 583, 645 
 
 Givens t Bradley 1 759, 763, ii 1003 
 
 T. Calder.. 11 741 
 
 T.Mans 132,11518, 588 
 
 T. Peake ii 28, 113 
 
 t: -Reynolds 1688, 589 
 
 Glann V. Tomnglove i 519, 611, 732 
 
 GlSnville v. Paiire 1 607 
 
 Glasgow T. Eidgley ii 460, 469 
 
 T.-Smith 11 475, 588, 594 
 
 Glass T.- Beach ......; i 389 
 
 v; Ther Betsy. 11 177 
 
 Glassell V. Thomas .-. 11 698 
 
 Glasserv. iReno.... i 511, 513 
 
 Glazier t. -Ere 11 364 
 
 Glenn v. -Grover i 188, 471, 644 
 
 T.Eapff.. -.;..... 1106, 729 
 
 V. -Rogers ; . : .11 653 
 
 T. Smith 1186 87 
 
 Glettn's Ex'r t. M'Cullotigh 1 847 
 
 Glory T. -State. . . ; i 306, 565 
 
 Glover v.- Hmmewell...-. 11 922 
 
 t;. Shields 11 785 
 
 v/W'hittenhaU ii 374 
 
 Goblet V. Beechey. 11 709, 733, 763 
 
 Gochenaur T. Good ii 297 
 
 GodardT. Benson ii 14 
 
 Goddard V. Bnlow ii 728 
 
 V. -Charles -.11 758 
 
 V. Cntts 11 673, 674 675 
 
 V. Glonlnger il 256, 301 
 
 V. -Pratt ......-..- ii 734 
 
 T. The State ii 216 
 
 Godefroy t. iToy 1 812, 817, ii S58 
 
 Godfrey, ex d. -^— v. Hudson i 670 
 
 t: City of Alton i 237 
 
 V. Godman i 885 
 
 t; Norris - 11 490 
 
 ' ' T; Saniiders 1 848 
 
 GodsallT. Baldero; ; i 790 
 
 Godson v: Smith ii 21 
 
 Gogel T. Jacoby i 740 
 
 GoitV. N. Pro.- Ins. Co 11 664 
 
 Goix T. Low. 11 175 
 
 Gold T. Bissell 11147, 151 
 
 V. Eddy 1 394, 11 210 
 
 V.' Hotchkiss il 870 
 
 V. Jones ii 631 
 
 Goldhawk v. Duane .1 677, 678 
 
 Goldle V. Qnnston i 468 
 
 T. Shuttleworth 1 866 
 
 Goldsby's Case i •! ''62 
 
 Goldsmith v.- Bane 11 600, '613 
 
 Qoldth-waite t. Dent 11 119 
 
 * GoUghtly t; Jellicoe ii 23, 412 
 
 Gonsales T. Beavens ii 404 
 
 Goodall V. Little i 146 
 
 V. -McAdam 1 466 
 
 Goodall T. Stnart il 368, 372 
 
 Goodenouffh v. Alway ii 210 
 
 Gobdell v.Plerce .- 11 661 
 
 Goodhay v.- Henry ■ i 104 
 
 Goodhawk v. Dnane. ...-..-..- i 678 
 
 Goodhue V. Bartlett ,11630 
 
 Goodinge v. -Gooding. ..-. ii 753 
 
 Goodman t. Edwards : il 722 
 
 V. Grlerson i 681 
 
 Goodman's- Adm'r v. -Armistead 11 807 
 
 Goodrich v. Do-wns ii 1006. 
 
 v. James 1 808 
 
 V. Jenkins II 186, 188 
 
 V. Knapp i 657 
 
 V. Pendleton 1 686, 689, 702 
 
 T. People 1 601, 634 
 
 V. Thompson ..1119, 81 
 
 T-Walker ;ii661, 662 
 
 Goodright ex dem-. -Grosvenor v. Bwymmer i 670 
 
 QoodseU r. Myers . . . .- i 748 
 
 Goodsoh V. -Goldsmith i 842 
 
 Goodtitle v. Ghandos (Ihike of ) 1 612, 666, 668 
 
 - - V. SavUle : ii 620 
 
 V. Sonthern .....-....■.■ ii 782 
 
 V. Tombs ..;...-. -. 11 42 
 
 ex dem.- Jones- v. Jones i 670 
 
 - - Parker- V. Baldwin 1 669 
 
 - Eevett-v; Bralsam . . i 819, 11 604, 
 607 
 
 Goodwin v. Gilbert ii 666 
 
 V. Goodwin 11 364 
 
 V. Harrison i 182 
 
 V. Hubbard ii 649, 686, 702 
 
 Y. -Jones 11 85, 86, 88 
 
 v.-Mussey . . .- j ii 209 
 
 V. -Richardson ii "tOS 
 
 V. Sheldon 1 665 
 
 V. West ii 828 
 
 v.-White ii 865 
 
 Goodyear T Ogden ....- 11653 726, 787 
 
 Gordon v. Arnold 1 372 
 
 V. Bowen ; i 98 
 
 V. Browne's Ex'rs. 1 868 
 
 T.P-inlay .;:....;.:..... 1 692 
 
 V. Hobart 11 685 
 
 V. Little 11210, 726, 732 
 
 V. Miller .-. ii 493 
 
 T. Ogden -. ....-..-. 11 144 
 
 V. Overton ;.;.•..;-..: ii 588 
 
 V. Payne...... ..-.-.-.■ ii 493 
 
 V; The Pe(fple 1 616 
 
 V. Price ii 601 
 
 V: -Ryan ..■....■.-.■.■. ii 1 002 
 
 Gore V. Gibson 1 785 
 
 V. Harris 1144,169 
 
 - v. -Summersall 1 693 
 
 GOrham v. Canton. .- 1 198 
 
 -T. Garrol-..- .-.-...- 1126, ii 938 
 
 v-.Gale. .-.•. 1 531,, ii 529, 539 
 
 Gorrill v.-Wh-ittier ii 20, 74 
 
 Gorton v.Dyson ii '420, 449 
 
 Goshen v. Stonington .- i - 593 
 
 Gosling v.- Bimie 1411,4.56, 11 377 
 
 Goss v-.Lord Nugent Mi 666, 680 
 
 V. Watlington -...-. .-.-.■ 1 207 
 
 Gottsberger ViRadway... 1 644 
 
 Gould V. Ohase 1457, 675 
 
 V. Chase 1 676 
 
 V. Glass.;.. 1 227 
 
 v-.-Gould-etal 11405,692 
 
 V. Hudson River K. R. Co i 662 
 
 V. Jam«s 1 43, 743 
 
 V. McCarty :il 322, 334, 818 
 
 v. Norfolk Lead Co 11 905 
 
 V.Webb 11 199 200, 208 
 
 V. Weed .-... 1 749 
 
 Gonlding et al. v. Skinner i 847 
 
 Gonpy V. Harden ii 670 
 
 Gourdine ads. Barino's Heirs i 218 
 
 Gouverneur v. Elliott 1 740 
 
 V. Lynch ...i 672 
 
 Gove V. Richardson. 11 803 
 
 Gover V. Hall.. i 689 
 
 Governor V. Barkley- — .-. i 176, ii 517 
 
 ■ T Bell . . . . il 256 
 
 V. Jeffries. 11 255 
 
 - - V. M'A-ffee : Ii 264, 265 
 
 V. Roberts i 668, 570 
 
 V. Twitty i 808, ii 368 
 
 Governors of L. School v.- Scarlett ii 802 
 
 Gower v. Sterner-. ...,-. H 699, 700 
 
cvm 
 
 TABLE OF CASES CITED. 
 
 Gowland v. De Faria i 691, 694 
 
 Grace v. Mercer i 4fi5 
 
 Bx parte i 693 
 
 Gracy V. Bailee i 441 
 
 Grady v. Sharron ii 468 
 
 Graeme v. Harris li 85 
 
 Graff V. Castleman i 692 
 
 Graftoa Banlc v. Kent ii 692 
 
 V. Woodward 1 488, 512, 734 
 
 Graham V. Alien 1746 
 
 V. Camman ii 1000 
 
 T. (iraham ii 1000 
 
 V. Pennsylvania Ins. Co i 3.-8 
 
 Grahams v. Morton ii 861 
 
 Gram v, Seton ii 471 
 
 Granger v. Biseell ii 1001 
 
 y. George ii 378 
 
 V. Parsons ii 148 
 
 Grangiac V. Arden 1463 
 
 Grannis v. Branden i 734, 75(1, ii 929 
 
 Giantv.Beall 1128.688 
 
 V. Bell i (i88 
 
 V.Bledsoe ii lt9 
 
 V. Brooklyn i ,S2o 
 
 V. Button ii 30 
 
 V. Da Costal i 867 
 
 V. Jackson ii 69 
 
 V. M'l.aohlin li lS(i 
 
 T. Morse i 520. 798 
 
 V. Naylor ii 072, S46 
 
 V. Spann ii 76 
 
 V. T'hompson i 7S5 
 
 V. Thompson .' 1741, ii 674. (iS7 
 
 V. Townsend ii 6.57 
 
 V. Vaughan 1811,825 
 
 Orasscr v. Bekart ii 707 
 
 Grath v. Howard 1 199, ii 199 
 
 Gratz V, Gratz ii 1004 
 
 v. Lancaster Bank ii 19 
 
 Graves v Boston Mar. Ins. Co i 852, ii 700 
 
 V. Carter i 477 
 
 v. Joice ii 42 
 
 V. Key ii 652 
 
 V. M'Canl i cm 
 
 V. Merry ii 27(i 
 
 Gravier'H Curator v. Cul'ion i ;^3 
 
 Gray v. Bond i 053 
 
 v Brown ii 212 
 
 V. CooksOn ii 157, 158, 160 
 
 V. Farris ii eg 
 
 V. Gardner i 005, S17 
 
 V. Goodrich 1174,212. 286 
 
 V.Gray ii ijii 
 
 V. Halton ii s(i2 
 
 V. Ilandkinson 11687 
 
 V. Harrison i 322 
 
 V. ralmers et al "i 400 
 
 V. Pentland 11.33,164, 11305. 515 
 
 V. Smithyes 1688 
 
 V. State of Ohio i h 
 
 V. Swan ii 173, 174 
 
 Gray's Ex'rs v. Kernahan 1 400, ii 630.' 643 
 
 Grayable v. York, <S:c., Co i 4.1! 
 
 Grays v. Turnpike Company ii 29.^ 
 
 Greathead V. Bromley ii u) 
 
 Greathouse v. Brown , -ii 10111 
 
 Great Western Turnpike Co. v. Lewis ii 940 
 
 Greaves v. Hunter ii 600, 611 
 
 Green v. Aspinwall i 759 ii goi 
 
 T.Bliss i 108 
 
 V. Brown i giio 
 
 V. (^ornwell ii 332 
 
 V. Darling i 483,11 407 
 
 V. Fisher 1 129 
 
 V. Proud i liliO 
 
 V. Gardiner i (mo 
 
 V. Gill 1 688 
 
 V. Green i 860, lion, 210 
 
 V. Oreenbank i 838 
 
 v. Hart i 08 
 
 V. Howard ii 752 
 
 T.Jiidith li 1010 
 
 V. Lundv ii 407 
 
 V. Merchant's Ins. Co i li03 
 
 V.Miller ii 404 
 
 a^vington ii837. .343 
 
 ■Wroude i (inn 
 
 r. Heynolds 1(1% 
 
 V. Sarmleuto ii 187, isk 202 
 
 v.Stnto 1(1. 113 
 
 V.Stephene i UU 
 
 Green v. Stone „ .U J81 
 
 V. Thompson ii 44 
 
 v. Vardinlaii 11 68 
 
 V. Winter... .'. .. ..' v i 693 
 
 (County of) v. Blesdoe. ii 212 
 
 Koel v. State of Missouri i 298 
 
 Green's Ex'r v. Anderson .*. ii 908 
 
 Bx'x V. Johnson ; i 323, 688 
 
 * Heirs v. Breckenridge's Heirs i 69i) 
 
 I'rustees v. Boblnson ii 660 
 
 Greenleaf V. (;ook 11674 
 
 Greenleaf 's Lessee v. Birth 1 823 
 
 Greenongh v. Gaskell i 132, 134 
 
 Greenslade v Halliday 1 657 
 
 Greenup v. Brown ., ii 108 
 
 V. Lyne's Heirs i 784 
 
 Greenwade v. Greenwade ii 429. 430 
 
 Cfreenwood v. Curtis i 350, ^13 
 
 Gregg V. Sayre's Lessee ii 1003 
 
 Gregory v. Baugh, i 174, 369, 11 299, 499, 500, 500, 633 
 
 V. Dodge ii 874 
 
 v. Gregory i 687, 693 
 
 v. Molesworth 1702 
 
 V. 'I liomaa i 758 
 
 Gregory's Ex'rt; v. Forrester 1 700 
 
 Greton v. Smith i 648 
 
 Grew v. Burditt ii 074 
 
 Grey v. Smith i 413 
 
 V. Smithyes i 688 
 
 V.Young 1 1S2 
 
 Grlerv. Grier ii 402, 404, 716 
 
 V. Shackleford 111.30 
 
 Griffen v. Marquant i 320. 471 
 
 Griffin v. Brown : ii 52. 916 
 
 V. Mitchell ii 130 
 
 v. Pratt ii 472 
 
 V. Wanllaw ii 63 
 
 Griffith V. Black ii 687, 693 
 
 V. Davis i 1,32 
 
 V. Depeu i 685 
 
 V. Dicken n 473 
 
 V. h rasier li 83, 89 
 
 . V. Ketchum's Adm'r i 409, 413 
 
 v. Keford i 124 
 
 Griffith's Lessee v. Evans iij 3(11 
 
 Griffith's Lessee v. Tnnckhouser ...li 301 
 
 Griffiths V. Williams '.'.'n 611 
 
 Griggsv. Howe 1829, 851 
 
 Griggs V. Dickinson 1199^ 179 
 
 V. Mannell { 744 
 
 Grimes v. Smith ' . ' .1 4|]8 
 
 V. Talbot 11 517, 6(j(j 
 
 Grinnell v. Stewart 1 7(31, 826 
 
 Grlswold V. Blgelow i{ 474 
 
 V. Haven ■■".'.i 46ij 
 
 V. Messenger 1477 
 
 V. Pltcalrn ii 186, 418, 419 
 
 V, Sedgwick n sag, 424 
 
 V.Stewart 11164 
 
 Groe-vclt v. Burrell ji 129 
 
 Groenvelt's (Dr ) Case ' "u ifih 
 
 Groff V. GroSf '.'..M 80 
 
 Gronlng v. Union lus. Co ' . li 170 
 
 Grose v. West ."."..., 1 609 
 
 (Trnnnx V. Abat's Ex'rs ".'.'.. '.'..ii 81 
 
 Grout V. Chamborlin '.'....!!ll 14 
 
 Grove v. Ware *.".'.'ii 545 
 
 Grover v. Green [ ' n r23 
 
 Grubbes v, Hcyser .. i 827 
 
 Grubbs V. M'Clatchy 11610 
 
 V.Nye .•.■..i 431 
 
 Grumon v. Haymoud 11 146, 151, 152 164 
 
 Grylls V. Davies i i(X) 
 
 Guernsay v. J'almer ' "ll (i47 
 
 Guernsey v. Kodbridges ' ,',', n bsk 
 
 Guest V. HomfVay 1 osb (jijg 
 
 Guidry v. Grivot .- ,".'1 ijis' 320 
 
 Gnignard V. Mayrant ' i{ 705 
 
 Guinness V. CarcoU ii 185 
 
 Gnllck V. Loder 11186 188 
 
 Gully V. Blsbop of Exeter 1 s70, 11 73 
 
 v.Grubba i 477, ii 666 
 
 Qunn V.Howell ii 109 
 
 „ . V. Scovil ::,ii lib 
 
 Gunton v. Nourso ij 40;) 
 
 Gurnee V. Dessies \ {5 
 
 Qurney v. Kenny '. 'n ggl 
 
 V. Lanulands ,'ii"t|04 60T 
 
 Gurnsey V Carver nxa, 120 
 
 V. Palmer n (J47 74Q 
 
 Guthrie V. GartUaer .','.... 11703 
 
TABLE OF CASKS CITED. 
 
 CIS 
 
 GnllyT. SauDders u 868 
 
 Guy V. Hall i 126, 326 
 
 V. Sharp ii70ii, 719 
 
 Gny V. Mead ii 918, i 849, B8li 
 
 Gnyon v. Lewis ii 849 
 
 Gwinne v, Poole 107, 139, 140, 143, 150, 151, l(i2 
 
 Gwinnett V. Phillips ...^ i 838 
 
 Gwynn v. Jones' Lessee ii 687 
 
 Gyfford v. Woodgate ii 307 
 
 HC. 
 
 Haakv. Breidenback i 836 
 
 Hacker V. Hardy ii 863 
 
 V. Yonng : ii 386 
 
 Hackett V, Martin 1 34 
 
 Hackley v. Patrick . „ i 496 
 
 Hackney V. Williams ii 593 
 
 ) laddock v. ICaleey ii 234 
 
 Haddon v. Mills .; i 328 
 
 Haddix's Heirs V. Davidson 1687, 688, 090 
 
 Uadduck V. Wilmarth i 123, 129 
 
 Hadileldv. Jameson ii 299, 417 
 
 Hadley V. Green ii 121 
 
 Hagaman v. Stafford , i 218, 345, il 976 
 
 Haaraman'a Case i 333 
 
 Ha^edon v. Laing i B96 
 
 Hagedorn v. Eeid i 348 
 
 Hagerv. Hager ii 285, i 607 
 
 Haggardv. van Amringe , i 696, ii B48 
 
 Haggart V. Morgan i 166 
 
 H'liigin V. Squires ii 421 
 
 Hazood V. Swords ii 675 
 
 Hagthorpv. Hook ii 701 
 
 Hagae V, Frencti i 868 
 
 Haig V. Newton i 126, 129, S86, ii 919 
 
 Haight V. Day 1 693 
 
 V. Child i 697 
 
 V. Price i 656 
 
 Hailev. Lillie i 522 
 
 Hain v. Martin i 33 
 
 Haines V. Beach ii 63 
 
 Haines Barley's Case i 066 
 
 Hainor v. Groves ii 709 
 
 Hair v. Glover 1 333 
 
 Haire v. Baker ii 40 
 
 V. Wilson.' i 601 
 
 Hairstone V. Cole 111004 
 
 Halbert v. Skyles ii 273. 341 
 
 Hale V Andrus i 739, ii 21, 2,3 
 
 v. Qoned i R75 
 
 v. Uenrie ii 135, 645 
 
 V. Hills 1743, ii 663 
 
 V. Inhab. of Portland — 16'!) 
 
 V. Jewell .".11649,632, 740 
 
 V. Ruas ii 4S3 
 
 Haley V. Caller •. 1747 
 
 V. Hickman's Heirs ii 8S3 
 
 Halifax's (Lord; Case 1 605 
 
 Uallv. Barton 11660, 722 
 
 V. Benner 1 (ill 
 
 V. Bynura il 490 
 
 V. Carruth 1 64, 128 
 
 V.Dana 11108, 110, 118 
 
 V. Fisher '. 1 464. 463 
 
 V. Griffin 11377 
 
 V. Gitting'B Lessee, i 4, 126, 225, 668, ii 1.35, 583 
 
 V. Graham ii 129 
 
 V.Hall 1587, 693,1199,537, 700 
 
 V. llallett i 692 
 
 V. Hamlin ii 03 
 
 V. Honghton ii 984 
 
 V. Howd 11 152, 154, 156, 472 
 
 V. Hnse i 463. ii 613 
 
 V. Leonard 11 749, 753, 761, 772 
 
 V. Luther - 11 503 
 
 V. Maccubin 11 671. 684 
 
 V. McLeod 1 tH" 
 
 V. Moore ii 132 
 
 v.Mott Ii 670 
 
 V. Mullin 1 8 
 
 V. Noyes 1 694 
 
 V. Odher i 870 
 
 V. Perkins 1 693 
 
 V. Phelps 1 426, 571, 11 426, 400. 469 
 
 V. Rogers ii 147 
 
 V. SpriTg ii 701 
 
 V. Slryker iil46, 198, 3(:G 
 
 V. Wiioox ii 692 
 
 V Williams. ii 98, 186, 188. 192. 197, 426 
 
 Hall's Case 1535,542, 641 
 
 Hall et ux. T. White i 458 
 
 Hallett V. Hare il S3 
 
 Hallidayv. Martinet i 389 
 
 v.McDongal 1 349,360.389 
 
 V. Noble ii 137 
 
 Halloway v. Lawrence 11 409, 600 5<il, 503 
 
 Hallowell Bank v. Hamlin 11 297. 443 
 
 Halsey V. Brown ii 730 
 
 V. Carter ii US 
 
 V. Fairbanks 1 609 
 
 V. Flint i 791 
 
 V. Jarvis 11 !)U3 
 
 V. Slnsebaugh ii 918, 924 
 
 V. Stenard il 8 il 
 
 Ham V. Ham 1 625 
 
 V. Schuyler 1 662 
 
 Hamblettv. Hamblett 1 103 
 
 Hamilton v. Averill 1 '747 
 
 t.. V. Burnm 11 156. 153 
 
 v. Cawood ii (i43 
 
 V. Cutts 118, 1 816 
 
 (Lady) V. Donegal (Marquis of) i li65 
 
 V. Mareden 1 394, 11 490, 492. 500, ,305 
 
 V. Menor 1 225. ii lOOO 
 
 V. M'Guires i 477, 685, ii 495 
 
 V. Neei ii 755 
 
 V. Knssell ii 1001 
 
 V. Sheppard 1 691. 503 
 
 V. Thomas ii 702 
 
 V. Wagner 11 f:67 
 
 V. Williams , ii .34, 115, 490 
 
 V.Wright iil06, lis, 398 
 
 Hamilton's Lessee v. Van Swearingen ii 534 
 
 Hamlin V. Fitch 1 501 
 
 Hamlin's Adm'r V. Atkinson 1441. 587 
 
 Hammett v. Wyman ii .375 
 
 Hammick et ux. v.' Bronaon 1 251 
 
 Hammltt v. Bullitt's Ex'r 1 S6i> 
 
 Hammon v. Hicks 1 (iR6 
 
 v. Huntley 1 497 
 
 Hammond v. Fuller 1 654 
 
 V. Holbrook ii 540 
 
 V. Hopping il 521, 529, 563, 673, 674 
 
 V. Norris ii 518 
 
 V. Plank ii639, .343 
 
 V. Ridgely 1 6ii9. ii ISO 
 
 V. Zehuer 1 666, 658 
 
 Hammond's Case 11599, 613 
 
 Hammoodsporb & B. Plank R. Co. v. Brumage. 
 
 11257 
 Hampden (Town of) v. Windham (Town of), 
 
 ii 1010 
 
 Hampshire v. Pierce 11 762, 782 
 
 Hampton v. Garland 1 129 
 
 v. M'Connell 11 97, 187, 189, 193, 3.39 
 
 Hand V. Baldwin ii 101, 2.38 
 
 V. Ballon ii 101, 238 
 
 Y. Hoffman 11 638, 749 
 
 V. Shipman ii ,394 
 
 Handley V. Call 1 lEG 
 
 V. Fitzhugh ii 515 
 
 Hands V. James 1 (ilo 
 
 Handy T. Johnson 1186 
 
 . . V. The State ii 400, 499, f 03 
 
 ..fcTallv, Johnstone 1201 
 
 Hanks V. M'Kee ii 672 
 
 1 . ,v. Roberts • ii 1000 
 
 Hannaford v. Hunn., ii 123 
 
 Hannah v., Wardsworth.. , ii (i66 
 
 Hannum v. Askew ii 822 
 
 Hanover v. Turner 1197, 179 
 
 Hansard v. Hardy 1 (i81 
 
 Hansborongh Ex'r v. Thom ii 7.34 
 
 Hansen v. Bryant 1 320 
 
 Hanson v. Barnes' Lessee 1 605 
 
 V. Haight 1 523 
 
 V. Kelly ii 889 
 
 Harden v. Gorden 1 475 
 
 Hardin v. Baird's Heirs 1 605, ii 7-3. 702 
 
 V. Kretsinger 1 696. ii 540 
 
 Harding v. Aldei 11 96, 188, 190, 196 
 
 V. Barney 1 5 
 
 V. Brooks 1 425 
 
 v. Carter 1 4S6 
 
 V. Craigle ii 493 
 
 Hardway v. Monson 1 4 
 
 Hardwick v. Mynd 1 694, 699, 700 
 
 Hardy V. Reeves.... 1 681. 703 
 
 Harev. Hare : il 99 
 
 • v. SInnn 1 819 
 
 Hargest v. Fothergill 11 628 
 
 Harget v. BlacksUear, , , ii 363, 364 
 
ex 
 
 TiBLB OP CASES CITED. 
 
 Hargett et ux v. — ii 353 
 
 Hargravev. Shewin et al i 829 
 
 HarSey v. -Powell i 679 
 
 Harlan v. -Harlan. i 465 
 
 - . v.Eeid ii 674 
 
 ^Harland v. Trigg ii 723 
 
 Barley v. .Cook .ii 290 
 
 T. Emerick i 126 
 
 Harlon v. Pike ii 47B 
 
 Harlow V. Humlston ii 1005 
 
 V. Thomas ii 646, 64T, 721, 739, 758 
 
 Harmer V. Davis ii 211 
 
 Harmon v. Arthur i 127 
 
 V. Brotherstou Ii 108 
 
 V. Gould ii 154 
 
 V. WatrouB Ii 146 
 
 Harmony v.Brigham i 874 
 
 ■V. Bingham i 825 
 
 Harper v. Baker i 747 
 
 V.Butler ii 87 
 
 V. Cook. .....: ii 543, 561 
 
 V. Distirelian i 746 
 
 V. Hampton ii 429 
 
 V. Scott 16, 214, ii 653 
 
 Harpending v. Shoemaker i 825 
 
 Harrell v. ward ii 552 
 
 Harrington v. Brown et al i 869, ii 90 
 
 V. Cole : ii 82 
 
 V. Commissioners, &c ii 130, 163 
 
 V. Fry ii 699 
 
 V. Hall i 384 
 
 V. Lincoln. Ii 953 
 
 V. Macmorris .i 744, 745 
 
 V. Eieh ii 402, 403 
 
 V. Slade ii 15 
 
 V. Wheeler i 698 
 
 Harris v. Aldritt Ii 326 
 
 V. Barber ii 836 
 
 v. Bennett i 71 
 
 V. Bishop of Lincoln ii 762 
 
 T. Caston ii674, 676 
 
 V.Clark 1301 
 
 V. Cooke i 625, 868 
 
 ' v.-Dinkin8 ii 701 
 
 V. Hamond. ii 115 
 
 ■ v.-Harris ■-...: 1140, 665 
 
 V. Hill , ii 897 
 
 V. .Horwell ii 649 
 
 V. Hadeon i 855 
 
 V. Johnson i 478, ii 672 
 
 V. Kent i 820 
 
 V. Lawrence i 863 
 
 V. Nettleship ii 108 
 
 V. Nicholas ii 726 
 
 V. Panama E. E. Co 1 786 
 
 V. Paynes , i 736 
 
 V. Powell's Heirs i 226 
 
 V. Eichardson i 841 
 
 V. Tippett ii 961 
 
 V. Tremenheere 1 692 
 
 V. Warner il 692 
 
 V. Wilson i 4, '498, 742, ii 90.? 
 
 Harris' Case i 706 
 
 Harrison V. Brock ii 1010 
 
 V. Burgess i 483, ii 483 
 
 V. CloBe 1 475 
 
 V. Cordell 1 434 
 
 V. Courtauld 1 100 
 
 V. Harrison 1 685, 686, ii 99, 196, 763 
 
 V. Hollias i 600 
 
 V. Jameson ii 700 
 
 V. Lagow i 870. 375 
 
 V. Lucas. i 685 
 
 V. M'Kimney i 433 
 
 V McMennomy ii 701 
 
 V, Middleton ii 916, 926 
 
 V. Park i 747 
 
 V. Eowan i 783, 11 79, 210, 461, 907 
 
 V. Talbot ii 698, 609, 700 
 
 V. Taylor i 696 
 
 V. Trustees ot Philips' Acad ii 650, (iliO 
 
 V. Vallanoe i 826 
 
 Harrison's Devisees v. Baker i 441, 508 
 
 Heirs V. Johnson ii 72 
 
 Harrison v. Eowan 1 786 
 
 V.Wood ii 33 
 
 Harrisons v. Baker ii 1004 
 
 v.-Panama E. E. Co 1 785 
 
 Harrod v. Barretto 11 196 198 
 
 Harger v. Edmonds 1 785 
 
 parshaw v. Moore i 333 
 
 Hart v. Blaight ii 6 
 
 V. Brooklyn i 825 
 
 V. Chalkner i 652 
 
 V. Deamer ii 266 
 
 V. Harrison ii 71 
 
 V. Hawkins , ii 701 
 
 V. Heilner i 3, 31 
 
 V, Horn 1326 
 
 V. Lodwick iil26, 198 
 
 V ^^fl,rlcR ii 640 
 
 v!Newland!'.;!!!]!''.'.!'.i598,'598,"6id,'6i7, 7.33 
 
 V. Prendergast i 602 
 
 v. Wilson i 349, 350 
 
 V. Yunt : ii 612 
 
 Harteau v. Harteau ii 96, 179 
 
 Hartford V. Palmer 14, 9 
 
 Bank v. Barry i 123 
 
 V.Hart i 487 
 
 Bridge Co. v. Granger i 429, 741 
 
 Pro. Ins. V. Harmar i 779 
 
 Hartley v. Cook ii 290 
 
 V. Harrison i 457 
 
 V. M'Anulty ii 668 
 
 V. Tatham i 457, 608 
 
 Hartman v. Stahl ii 131, 664 
 
 Ha,rtness V. Thompson i 46 
 
 Hartpole V. Walsh 1 681 
 
 Hartshome V. Johnson 11 28 
 
 Hartung v. People i 537 
 
 Hartwell v. Eoot 1 604. 814 
 
 Hartwright v. Badham i 650 
 
 Harvey v. Alexander ii 656, 686, 690 
 
 V. Anderson 1 527 
 
 v. Ashley ..." i 695 
 
 v: Brown 11 360 
 
 V. Grabham ii 666, 681 
 
 V. Holland i 822 
 
 v.Huggins 1166,143, 165, 163 
 
 V. Jones ii 493 
 
 V. Morgan ii 630 
 
 V. Newton ii 645 
 
 V. Eichards ii 18 
 
 V. Eickett i l68 
 
 V. Snow's Lessee ii 404 
 
 Harwood v. Goodrlght. , 1 602 
 
 V. Oglander , i 6S6 
 
 V. People 1 181 
 
 V. Eawling's Heirs ii 64 
 
 Hasbrouck v. Baker i 582, 11 378, 814, 833 
 
 V. Tappan i 855, 11 695 
 
 V. Van Dervoort 177, 83 
 
 Haskell v; Qreely i 650 
 
 V. Haven ii 269 
 
 V. Keen 1 677 
 
 V. Sumner 11 129 
 
 Haskins v. Stuydevant ii 612 
 
 Haslett's Adm'r v. Glenn ii 81 
 
 Hassam v. Griffin.'. il 824, 827 
 
 Hastings v. Blue Hill Turnp. Cor. . . .11 258, 349, 587 
 
 V. Farmer 11 148 
 
 v. Lowring i S46 
 
 V. Palmer ii 912 
 
 V. Vaughn ii 456 
 
 Haswell v. Bussing i 24 
 
 Hatch V. Cobb i 698 
 
 V. Dwlght 1 664 
 
 V. Hatch. . . .1 691, 694, ii 483, 517, 600, 661, 719 
 
 Hatch's Lessee v; Barr il 468, 474, 691 
 
 Hatcher v. Hatcher 1 684 
 
 V. Eocheleau i 218, 11 425, 509 
 
 Hatchet v. Marshall { 805 
 
 Hately V. State i 113 
 
 Hatfield V. Montgomery 11 460 
 
 Hathaway v. Goodrich il 254, 258, 367 
 
 V. Power i 282 
 
 v. Spencer 11 533 
 
 V. Spooner i 441, ii 587 
 
 V. The Sun M. Ins. Co. 1 629 
 
 Hatter v. Etenaud ii 649 
 
 Hatton V. Banks i 463 
 
 V. McClish ii 860 
 
 (Lady) v. Jay i 682 
 
 Hautz v. Bought ii 494, 506 
 
 Hauxhurst v. Hovey ii 850 
 
 Hauxhurst's Case ii 975 
 
 Haven v. Brown i 612, ii 804 
 
 V. Foster ii 274, 428, 699 
 
 Haviland v. Cook i 468 
 
 Havraes v. Bradshaw 11 861 
 
 Hawes V. Barker Ii 645 
 
 v. Hathaway U 28 
 
TABLE OF CASES CirE'Dj 
 
 CXJk 
 
 Hawes v. Leader ,,ii 686 
 
 V. Watson i 466 
 
 Hawkes V. Baldwin ii 370 
 
 Hawkins v. Barney's Lessee i 823 
 
 V. Craig. ii 106 
 
 V. Gathercole 1 153 
 
 V. Hanson ii 783 
 
 V. Hatton i 81 
 
 V. Bawkina 1 33 
 
 V. Van Wickle i 732, ii 884 
 
 Hawkins' et al. Case i 706 
 
 Ex'rs V. Sumpter .- ii 897 
 
 Hawley V. Beman ii 674 
 
 V. Cramer i 687, 689, 692 
 
 V. Griswold i455, 508 
 
 V. Mancius i692, ii 28 
 
 Hawn V. Norris ^ ii 650 
 
 Hayv.Hay i 80 
 
 Hayden v. Mentzer ii 657 
 
 V. Nott i 825 
 
 V. Wescott ii 583, 585, 586, 588 
 
 Haydock v. Cobb ii 339 
 
 Hayes v. Caryl i 698 
 
 T. The People i 631 
 
 V. Eeese ii 40 
 
 Hayman's Ex'r v. Miller ii 188 
 
 Haynes, Ex parte ii 137 
 
 V. Ratter ii 498 
 
 v. Small 1 521 
 
 Hays V. Lusk i 812 
 
 V. Eichardson i 102 
 
 V. Riddle 1 580 
 
 Hay's Ex'r v. Jackson ii 707 
 
 Hayward V. Carroll ii 72 
 
 V. Middleton ii 728, 729 
 
 Haywood v. Bath, ii 144 
 
 T. Perrine ii 676 
 
 Hazard v. Martin 1 665 
 
 T. Robinson 1 656, 659 
 
 Hazletine v. Page ii 1003 
 
 Hazzard T. N, England Mar. Ins. Co ii 728 
 
 V. Smith .. i 704 
 
 Head v. Hartford i 332 
 
 T. Perry ii 126 
 
 V. Taylor ? 1 742 
 
 Head's Reps. v. McDonald ii 128 
 
 Hcaden V. Rosher i 694 
 
 Heagy V. Umberger ii 645 
 
 Healdv. Cooper 11719^26,793 
 
 V. Heald .:TT1B84 701 
 
 V. Thing i 785 
 
 Healy v. Jacobs i 177 
 
 v.Moul ii 476 
 
 Heane V. Koeers i 458 
 
 Heaphy v.Hill i 698 
 
 Heartt v. Corning i 448 
 
 Heath v. Henley I 688 
 
 Heath's Cases i 441 
 
 Heathfleia, Ex. Parte i 700 
 
 Heaton v. Findley 1 144 
 
 Heatonv. Hugell i 679 
 
 Hebert V. Landry ii 674 
 
 Hebron v. Marlborough il 439 
 
 Heck V. Shener i 745 
 
 Hecker V. Jarrett 1521 
 
 Heckerman v. Hummel ii 480, 488 
 
 Heckert v. Haines 1 29, 687, ii 468, 521 
 
 Hedden V. Overton ii 301 
 
 Hedge v. Clapp ii 905 
 
 Hedger v Horton i 329 
 
 Heeley v. Barnes ii 873 
 
 Heermans v. Williams ii 393 
 
 Heflelfinger v. Shutz 1 607, 11 488 
 
 Hegden v. Heard ii 929 
 
 Heicksv. Person ii 616 
 
 Heilner V. Imbrie ii 650, 699 
 
 Heinmanv. Waterbury il 361 
 
 Heister V. Dayis i 142 
 
 V. Fortner ii 583, 585, 588 
 
 T. Lynch i 714 
 
 Helflnchv. Btearn., ii 214 
 
 Hellain v. Maurin ii 125 
 
 Helen v. Handley ii 988 
 
 Hellman, use of Hellman il 587 
 
 Helm Y. Handley ii 907, 938 
 
 •v.SmaU ii783 
 
 Helm's Case i 601, 769 
 
 Ex'rs V. Jones ii 514 
 
 Lessee T. Howard i 599 
 
 Hehn^ley v- Lpa4Qr i 868 
 
 HelTete Y. Ifepp il 155 
 
 ■Hemenway v. Gates i 685, 6SS 
 
 V. Stone 1 811, 817 
 
 Homing v. Gurney ii 706 
 
 Hemiup, Matter of ii 80, 83 
 
 Hemphill v. City of Boston i 651 
 
 Hempstead v. Bird ii 493 
 
 V. Reed ii 429 
 
 Hempsted v. N. Y. Central Railroad i 839 
 
 Henarie v. Maxwell i 82 
 
 Henderson v. Brown 11 142 
 
 v. Calms i 11 888 
 
 V. Hackney ii 444, 615, 709, 711 
 
 V. Hamilton i 677 
 
 V. Henderson i 179, ii 195 
 
 V. Moore ii 1001 
 
 .11 9 
 
 Henderson's Adm'r v. Clark i 746 
 
 Hendray v. Spencer i 865 
 
 Hendricks v. Robinson i 693 
 
 HendrickBon V. Beers i 477 
 
 V. People i 184, 773 
 
 Hendriokson's Adnrr v. Miller.'' i 434, 437 
 
 Henman v. Dickinson i 89, 606, 607, ii 483 
 
 HennicLuin v. Nayler i 759 
 
 Henroy t. Kerr ii 903 
 
 V. Van Pelt i 785 
 
 Henry V. Bishop 1426,11460,461, 469 
 
 V. Brown 1 863 
 
 V. Cleland 1846, 866 
 
 v; Henry 1 848 
 
 V. Lee ii 924 
 
 V. Milham ii 118 
 
 V. Risk ii 729 
 
 Y. Root i 459 
 
 Henry's Lessee v. Morgan ii 873 
 
 Henshaw V. Davis 1336, 385, 386 
 
 T. Pleasance 11160, 184 
 
 Henson v. Henderson ii 90O 
 
 Henthom v. Doe ...ii 426, 429, 444,478, 484, 593 
 
 Henwoodv. Cheeseman ii 1000 
 
 Hepburn V. Auld 1664,671, 698 
 
 v. Cassell 1 124 
 
 Y. M'Dowell i 658 
 
 Herbert V. Cook ^ 11106,107, 141 
 
 Y.Wise 11 783 
 
 Hercy v. Dinwoody 1 683,669, 701 
 
 Heridia V. Ayres ii 340 
 
 Herlock's Adm'r v. Riser i 372, 378, 384 
 
 Herman v. Drinkwater i 40 
 
 Herndon V. Givens i 102, ii 352, 876 
 
 Herndon's Ex'rs v. Bartlett's Ex'r 1 682 
 
 Herrv. Slough i 428 
 
 Herrick v. Blair i 214 
 
 v. Malin 1 607 
 
 Herring v. Boston Lron Co ii 744 
 
 V.Levy 1348,370, 384, 11 146 
 
 V. Selden il 874 
 
 V. Tylee ii 808 
 
 Herringtoh v. Bradford ii 672 
 
 Hersey Y. Barton i 445 
 
 Hershfleld Y. Dexel i 624 
 
 V.Harris i 624 
 
 Hertford V. Boore 1697, 698 
 
 Hess V. Beekman .1134,109, 391 
 
 Y.^ox 1805,838, 873 
 
 v.Heeble 11 21 
 
 V. The>State ii 337, 605, 607 
 
 Hethv. Toung 1 390 
 
 Hetherington v. Kemp ii 549 
 
 Heupertv. Beun i 684 
 
 Hewes v. WisweU 11533, 588 
 
 Hewes' Lessee v. M'Dowall Ii 301 
 
 Hevritt v. Piggott u 71, 331. 331 
 
 V. Prime i 138 
 
 Hewlett Y. Cook 11476, 478 
 
 Hewson v. Henderson 11672 
 
 Heydon's Case ii 726 
 
 Heyward V. Middleton ii 730 
 
 Heywood v. Perriu il 740 
 
 Hlbba Y. Blair . . . ; ii 444 
 
 Hibshamv. Dulleban ii 76 
 
 Hice Y. Cox ii 983 
 
 Hickes V. Cooke 11691, 693 
 
 Hlckey V. Toung 11 68 
 
 Hickman V. Boffinan i 605, 814 
 
 V. Skinner. 1604,11473,474, 574 
 
 Hickox v. Talman ii 474 
 
 Hicks etux.. v. Martin i 818 
 
 Hicks' Case i 638 
 
 Higbee v.. Elce. 1 747 
 
 Higden Y.Heard ii 929 
 
cxu 
 
 TABLE OP CASES CITED. 
 
 Higdonv. Higrlon i 33, ii 660 
 
 V. Thomas 1635, 1; 666 
 
 Higgius V. ChesBm*tn i 461 
 
 V. Crawford 1 633, 634 
 
 V. Hayward ii 1008 
 
 V. Scott i 701 
 
 V. Solnraan i 51 1 
 
 HigginBon v. Martin ii 151 
 
 V. Mein i 678 
 
 otal. V. Airetal i 4!I9 
 
 Higgs V. Shehe* 1336 
 
 High V Stainback. . ,- i 4 
 
 V.Wilson .»..., ii 155, 366 
 
 Ilighfleld V Peake 11 354, 331, 385, 076 
 
 Highland Turrip. Co. v. M'Kean ii 295, 207 
 
 Highly V. Bidwell 1 301 
 
 Highmore v. Primrose 1 867 
 
 Hightower v. Ivy 11 666 
 
 V.Joy 11670, 674 
 
 Hightowcr'B Lessee v. Wells ii 588 
 
 Highlander v. Fluk« i 193, 320 
 
 Higley v. Bidwell 1 221, 222 
 
 Hildreth V. Sands 11600 
 
 Hildyard v. Cressey i 702 
 
 Hill V. Bateraan ii 153 
 
 V. Bnokminster i 477,433, ii 671 
 
 V. Cockford il 448 
 
 V. (Jhapman 1 690 
 
 V. Cox .ii 984 
 
 V. Crockford 7. .11 449 
 
 V. Crosby i 650, 051, 669 
 
 V. Crosby i 6.50 
 
 V. Draper i 473, 575 
 
 V. Draper 11575 
 
 V. Elliott i 131, ii 636 
 
 V.Ely 11670 
 
 V. Hill ii 5.S3, 707 
 
 V. Manchester & S. Saltworks , 1 460 
 
 V. Owen 1 633 
 
 V. Packard ii 36.3, 410 
 
 V. Payson 1121, 180 
 
 V. Phillips ii 496 
 
 V. Scales ii 501 
 
 V. Scott i 385 
 
 V. State ii 387 
 
 V. Stocking ii 137 
 
 V. Unett 11607 
 
 V. Wait 11140,155 
 
 Hill's Case 1569,106 
 
 Hillary v. Waller 1 651, 659. 670 
 
 Hilliard V. Kearney 11640 
 
 Hilliker v. Loop 1 374 
 
 Hills v. Bannister ii 691 
 
 v. Elliot 11 686 
 
 Hilts V. Colvin 1 23, 58.3, 604, 814, 11 349, 533 
 
 Hiucksman v. Smith i 604 
 
 Hincle V. Carrutb ii 361 
 
 Hinckley v. Bridghnm ii 286 
 
 Hind V. Willis 11 143 
 
 Hind's Lessee v. Longworth i 608 
 
 lllnde v. Vatticr ii 429, 434 
 
 Hiude';' Lessee v. Longworth 1 608, 11 690 
 
 Hindmarsh's rase 1 711 
 
 Hine V. Robbins il 688 
 
 Hiuesv. Oldham ii 65, 129, 146 
 
 Hinman v. lireese ii 373, 634 
 
 Hinson v. Henderson ii 900 
 
 Hintou V. Pox 1 638 
 
 v. Locke ii726, 7S4 
 
 V, Townes 11 188 202 
 
 Hinxman's Case i 535 
 
 Hiram (The) ii 700 
 
 Hitchcock V, Aicken ii 136, 187 200 
 
 V. Harris ii 667 
 
 V. Tyson 1701 
 
 Hitchcock's Case i 778 
 
 Hitchin V. Campbell il 21 
 
 Uitev, Long 1125, 115 
 
 V. The State 11 7)5 
 
 Hi t-i's Helr.^ v, Shrader ii 674 
 
 Hizerv. State 11 27.') 
 
 Hiiag's Case 1 706 
 
 Hoaro V, Allen ,' 1 187 
 
 V. Graham il 676 
 
 Hognn V. Baker 11147 
 
 Hobbs V. Middleton 11 1.33 
 
 Hobson V. Blackburn 11 122 
 
 V. Doe ex d. Harper 1 804 
 
 Hobby V. Dana 1 778 
 
 Hoddy'a Leasee v. Harryman 11 476, 588, 587 
 
 Hocl|j9 V. Owlngs, . . ,-, i 688 
 
 Hodgdon V, Wight ii 890 
 
 Hodgden V. White ii 390 
 
 Hodges V. Crutcher 1 137 
 
 V. Deadricks ii 145 
 
 V. Drakeford i 677 
 
 V. Hodges ii 24 
 
 V. Holder i 818 
 
 V. Horsefall ii 741 
 
 V. Maine and Fire Ins. Co .... ii 647, 683, 700 
 
 V. MuUikin. 1181 
 
 Hodgkinson V. Marsden 1 786 
 
 Hodgson V. Hancoek ii 700 
 
 V. Hodgson ii 762, 771 
 
 Hndle v. Healey i 679 
 
 Hodson V. Cooke ii 139, 151 
 
 Hoe v. ^^anborn..-. 11.361 
 
 Hoe's Lease • 11366 
 
 Hoffv.Myers ii 25 
 
 Hoffman v. Coster 11 24. il 645 
 
 V. Porter ii 723, 761 
 
 V. Ravage 1 651 
 
 v. Smith i 135 
 
 Hoffnagle v. Leavitt 1 850, 872 
 
 Hogv.Terry 1158.8,688 
 
 Hogau V. Delaware Ins. Co ii 700 
 
 V, Mahon.... 1 751, ii 129 
 
 Hogev.Hoge, 11701 
 
 Hoge's Lessee v. Fisher i 604 
 
 Boggart v. Scott 1 697 
 
 Hogland v. Sebring ii 460 
 
 Uoitv. Maloney • ii 144 
 
 V. Moreton ii 952 
 
 Holbrook v. Blodget ii 663 
 
 V. Gsy i 344, .886 
 
 V. Murray ii 188, 193 
 
 'V. L'ticaandS. E. E. Co i 811, 312 
 
 Holcomb V. Cornish ii 397 
 
 Hblden v. Curtiss et al ii 30 
 
 Holding v. Plggot ii 792 
 
 Holdman v. Brassfleld ii 367 
 
 Holman v. Eimball i 138 
 
 Holdridse v. Gillespie i 692 
 
 Hothead v. Abrahams i 871 
 
 Holiday v. Mann 1 737 
 
 Holker v. Parker ii 407 
 
 HoUaday v. Marsh ii 910 
 
 Ex'r V. Littlepage 1 303 
 
 Holland v. Dnffin ii TJ3 
 
 ,^,Hopkins i 870 
 
 Hollenheck v. F.eming ii 461 
 
 Holley's Adm'r V. Christoper 1408 
 
 Hollingshead v. Allen 1 38.5, 618 
 
 Hollingshead's Case 16,89, 702 
 
 HoUingaworth V. Barbour 11 53 
 
 V. Duane ii 830, 832, 882, .866 
 
 V. Dunbar i 828 
 
 V. Ogle i 745 
 
 Hollis' Case 1 (i83 
 
 HoUisterv. Bonder i 813 
 
 V. Hollister ii 47 
 
 V. Johnson 1 456 
 
 Holloway v Collins i 624 
 
 Holman v. Borough .' 1 861 
 
 V. Collins i 621 
 
 Holme v. Carpser 11674 
 
 V. Smith ii 819 
 
 Holmes v. Anderson ii 973 
 
 V.Avery ii 30 
 
 V. Broughton . . i 611, 624, ii 187, 188, 197, 423 
 
 V. Comegys i 137 
 
 v. Davis il 43 
 
 V. D'Camp 11565 
 
 V. Kimball i 133 
 
 v. Marden 1 377, 11 568 
 
 V. Meyuel 1611 
 
 v. Nuucaster , ii 165. .368 
 
 V. Remsen , 1161, 108, 186 
 
 V. Simons '. ii 645, 700 
 
 iv. Williams i 119 
 
 et al V Ketlingor i 413, 497 
 
 Holridge V. Gillespie 1 23 
 
 Holroydv. Liddle U 325 
 
 Holt V. Alloway ii 188, 201 
 
 V. Commonwealth 11 860, 871 
 
 V. Crume 1733,739,740 
 
 V. Holt i 692 
 
 V. Squire 1 440, 509 
 
 Holtou V. Gloason 11 193 
 
 Holtzapple's Lessee v. Phillibaum .... 1 177. 869, 671 
 
 Holyoke v, Haskins 1690, ii S9 
 
 HomauT, Tbomion 4... 1 103 
 
TABLE OF CASES CITED. 
 
 CXUl 
 
 HomeT. Smith ii 82S~ 
 
 Homer v. Cilley ii 480 
 
 T. Dort; ii 730 
 
 T.FIsh 1702, ii29, 30 
 
 ^ T. WaHis 11461,493,500, 618 
 
 Homes V. Aery ii 401 
 
 Honsee v. Hammond i 659 
 
 Hony T. Hony 1 688 
 
 Hood v. Beaucliamp i 256 
 
 V. Eeeve 1349, 508, 515 
 
 Hooev.Pierce -..ii 171 
 
 Hook V. Paige 1 823 
 
 Hopke V. Grave ii 704 
 
 Hoaker v. Eogers 11 861, 865, 866, 867, 868 
 
 MoomesT. Elliott 11 73 
 
 V. Smock ii 68 
 
 Hooper, Ex"parte 11 644 
 
 V. Edwards 1 186 
 
 T. Smith 11 808, 814 
 
 v: Stewart 1 464 
 
 Hoose V. SheriU 11363, 389 
 
 Hoover v. Jennings ii 209 
 
 Hope's Case 1 542 
 
 Hopewell v.Amwell..; 11455 
 
 Hopfv. Myers 11 121 
 
 Hopkins v. BankJB 1 30, 66, 481, 499 
 
 V. De Graffenreid ii 507 
 
 V.Hopkins ii 179, 366 
 
 T.Lee..: 1118,19,20,44, 61 
 
 V. Maggulre ii 697, 617 
 
 V. Smith 189, 408, 749 
 
 v. Stump ■ ii 211 
 
 and Gannon's Case 1 495 
 
 Hopkins' Ex'rs v. Mazyck ii 699 
 
 Hopper V. Commonwealth 11 839 
 
 V. Hackett..... ii 403 
 
 Hord V. Dishman ii 588 
 
 Horfordv. Wilson it 1001 
 
 Homeyer V. Lnshlngton ii 173 
 
 Hort V. Jones 11 867 
 
 Horrisv. Badger 1 806 
 
 Horton v. Anchmoody ii 103 
 
 V. Hagler's Ex'r 11 588 
 
 V. Morgan 1 520 
 
 Hosack V. College of Physicians i 488 
 
 V. Rogers i 88 
 
 Hosford v. Eoote ii 120, 577 
 
 v. Nichols ii 430 
 
 Hosklns V. Miller ii 452 
 
 Hosley v. Black. 1 737, 836, 825, 11 1004 
 
 Hotchklss v. Lyon i 308 
 
 V. Nichols ii IS, 62 
 
 Honck V. Grouse : 1 746 
 
 Honghv. Doyle 1 381 
 
 V. Patrick 1 87 
 
 Houghtailing v. Kelderhouse 1 23 
 
 Houghton V. Gilbart ■ ...ii 733 
 
 V. Page 1 125 
 
 V. Townsend ii 47 
 
 V. Ex parte ii 702 
 
 HouHston V. Smith 1 81, 187, ii 389 
 
 Hourqiieble v. Girard 11 399 
 
 House V. Low i 475 
 
 T. Young 1 856 
 
 HoTjseman- V. EobertB 11528, 529 
 
 Hovenden v. Annesley 1 685, 687, 690, 703 
 
 Hovey v. Hovey 1 437, 438, 440, ii 210 
 
 ' V. Newton 11 646, 660 
 
 V. Sljnmway ii 674 
 
 HoviU V. Stephenson 1 82, ii 490, 491 
 
 How's Case' ,' 1 616 
 
 Howard v. Aiken 1 669, 6S5, 686 
 
 Howard V. City Fire Ins. Co 11 940 
 
 V. Cobb 1 501 
 
 V. Harris 1 681 
 
 V. Holbrook 11 509 
 
 V. Mason 1 656 
 
 V. Mitchell ii 38 
 
 V. Peete , 1 842 
 
 V. Eogers ii 645 
 
 V. Sexton 1 835 
 
 V. Smith ii 134 
 
 V. Sueton 1 761, 827 
 
 V. Taylor 1 71 
 
 V. Thompson 1 165 
 
 V. Tucker 1460, 462 
 
 Howe v. Bass ii 783 
 
 V. Lawrence. .'. 1 523 
 
 V. Starkweather U 375 
 
 Howell V. Baker i 693 
 
 y. Barden i 316, 318, 378, 379 
 
 Howell V. Commonwealth ii 935 
 
 v.'Delancey i 4 
 
 V. Hooks ii 698 
 
 V. House i 664 
 
 V. M'Coy i 654 
 
 V. Price i 681 
 
 V. Eichards i 806 
 
 Howell's Lessee v. Tilden 1 223 
 
 Howes V. Barker ii 658, 669 
 
 Howland v. Leach i 696 
 
 V. Lenox 11 811 
 
 V. Sheriffof Queens Co ii 925 
 
 V. Wijletts i 68, 521, 737, ii 9, 1004 
 
 Howson V. Hancock ii 685 
 
 Hoxie V. Carr ii 703 
 
 V. Wright ii 186, 137, 190, 198 
 
 Hoyatt V. Phifer ii 574 
 
 Hoye V. Penn ii 686 
 
 Hoytv. Dillon i 474 
 
 v. Gelston ■. i 454, 11 28 
 
 V. Hudson ii 373 
 
 V. MOlony 11 105 
 
 V. Thompson i 516, 11 575 
 
 Hubbard v. Briggs i 633 
 
 V. Elmer 1 512 
 
 V. Goodwin 11 701 
 
 V. Hobson 11 118 
 
 V. Martin ii 699 
 
 V. Eussell 11 511 
 
 V. Spencer ii 145 
 
 Hubbellv. Coudrey 11 186 
 
 V. Eussell 11 511 
 
 Hubby v. Brown 1 120 
 
 Hueheson v. Pope 11 661 
 
 Huckstep V. Matthews i 695 
 
 Hudgius V.Wright: 1 832 
 
 Hudson V. Gnestier ii 177 
 
 V. Hudson's Ex'r 1 699 
 
 V. Hulbert i 126 
 
 V. Isbell il 649 
 
 V. Swift : 1 696 
 
 Huet V. Fletcher 1 699 
 
 Huff V. Bennett 1 166, 390, 400, 11 416, 926 
 
 V.Bennett i 166 
 
 V. Huff ii 119 
 
 Huger's Adm'rs v. Osbom ii 374 
 
 Hugh v. Eobinsou 1 622 
 
 Hi^hes V. Alexander : 11 19 
 
 V.Blake 1120, 33 
 
 V. Cornelius ii 172 
 
 V. Fasten ii 511, 661, 662, 663 
 
 V. Edwards 1 678, 679, ii 649 
 
 Exparte 1 693 
 
 V. Hampton 1 383 
 
 V. Harrison ii 511 
 
 V. James 1 460, 594 
 
 V. Moore 1 744 
 
 V. Smltli 11 7S6 
 
 Adm'rs V. Stokes' Adm'rs i 92 
 
 V. Wynne 1 694 
 
 Hughes' Case ii 604 
 
 Huidckoper v. Cotton 1 133 
 
 Hulbert v. Carver 11709, 755 
 
 Hulin v. Eichards i 523 
 
 Huling V. Foote's Adm'r ii 89 
 
 Hulke V. Pickering 1 6S2 
 
 Hull V. Blake ii 33 
 
 V. Commonwealth 1 641 
 
 V. Hull 1 196 
 
 V. Turner 1 872 
 
 Hulsecamp t, Teel 11 144 
 
 Hultz V. Wright 11650 
 
 Himibert v. The Mcth. Episcopal Church ii 74.3 
 
 Hume V. Burton ii 20, 79, 112, 150 
 
 V. Gillespie 1 747 
 
 V. Lang's Eeps 1 603 
 
 V. Scott ii 956 
 
 Humphrey v. Cottellyou 1 804 
 
 V. Humphrey i 758, 763 
 
 V. McCraw i 186 
 
 V. Persons 11 394 
 
 Hunscomb v. Hunscomb i 16, ii 953 
 
 Hunt T. Adams ii 483, 968, 669, 669, 675, 717 
 
 V. Bennett i 166 
 
 V. Bloomer ii 996 
 
 V. Boylan ii 378 
 
 V. Bridgham 1 308 
 
 V. Edwards 1 126 
 
 V. Fish- ii 983 
 
 V. Freeman ii 700 
 
 V. Gist. ■ 11 749 
 
 Vol. I. 
 
 15a 
 
CXIV 
 
 TABLE OS- CASES CITED. 
 
 Hnnt T. Hapgood ilTO, S3 
 
 V. Hort ii 765 
 
 V. Johnson 1 281, il 591 
 
 V. JolinBon i 281 
 
 T. Livermore 1696, ii 576, 740 
 
 V. Lyle ii 60, 66, 188, 190, 202, 426 
 
 v. Maybee ii 509 
 
 V. Moultrie 1 470 
 
 V. Owings ii 588 
 
 V. Eouomanier il 68, 699, 700 
 
 V. United States ii 692 
 
 T. mter 1812 
 
 V. White ii 640 
 
 V. Wicldiffe i 690 
 
 V. Wilson 11 406 
 
 Hunter T. Bryson 11 86 
 
 V. Commonwealth 1 541, 564, 565, 11 260 
 
 T. Davles i 684 
 
 V. Glenn 11 501 
 
 V. Graham ■. ii 687 
 
 V. Hudson Elver Iron and M. Co 1513 
 
 T. Hunter 11 661, i 29 
 
 V. Jones 1 327, 11 69 128 
 
 T. Kehoe 11 909 
 
 T. Kirk .11 37 
 
 V. Kice ii 408 
 
 T. Smith i 348 
 
 V. Stevenson i 126 
 
 V. Trustees Sandy Hill 1 40, 227, 334 
 
 etalv. SpotBwood i 688 
 
 Huntingdon's (Ld.) Case 1611, ii 140 
 
 Huntington V. Amer. Bank i 747 791 
 
 V. Conkey 1 820 
 
 Hurd V. Morlng 1 142 157 
 
 V. Pendright 1 519 
 
 V. Swan 1 814, 828, 8.33 
 
 V. West 1 326, 330 
 
 Hum's Lessee v. Soper 11 587, 667 
 
 Hurst V. Beach li 763 
 
 V. Dippo il 301 
 
 V. Watkins 1 808 
 
 Hurst'sCase 11821, 822 
 
 Lessee v. M'Nell 1 668, 810, 11 6 
 
 Hussey y. Allen 11 286 
 
 v. Jewett 11 674 
 
 V. Man. and Mech. Bank 1 602 
 
 Huson V. Henderson 11 672 
 
 Huston V. Noble 11 699 
 
 Hutcheson y. M'Nutt's Heirs 11 699, 700 
 
 Hutchms V. Eden 11 813 
 
 V. Fitch 11 33 
 
 Hutchina' Case 11 612 
 
 Hutchinson v. Coleman 1 654 
 
 V. Sandt et al 11 266 
 
 Hutchinson's Adm'r v. Sinclair 1 477, 11 656 
 
 Hutt, Bx parte 11 313 
 
 Huttemelr V. Albro ii 785 
 
 Hutton V. Warren ii 792 
 
 Huxham V. Smith 11 107 
 
 Hyam v. Edwards 11 281 
 
 Hyde v. Henry 11 124 
 
 V. Stone 1 427 
 
 HyerS y. Green il 1010 
 
 V. Wood 11 1010 
 
 Hyers' Case 11 349 
 
 Hyltou's Lessee v. Brown 11 334, 538 
 
 Hynev. Campbell 11 650, 656, 658 
 
 Hyskillv. Given 11 368 
 
 Icehour v. Martins ii 839 
 
 Iddings v. Iddings 11645, 752 
 
 Iggulden V. May 11 803 
 
 Inflay V. Kogers 17,167 
 
 Imperial Gas Co. v. Clarke 11 316, 331 
 
 Impey v. Taylor 1 866 
 
 Incmquin (Earl of) v. Burnell 1 698 
 
 Independence v. Pompton 1 253 
 
 Ingails V. Lord 11 907 
 
 IngersoU v. Sawyer 11 367, 375 
 
 Ingham V. Crary 11344, 860 
 
 Inglee V. Bosworth 11 142, 145 
 
 Inglehart v. Jernlgan 11 889, 926 
 
 Ingles V. Ingles' Bx'r 1 482 
 
 Ingraham V. Baldwin 1464, 679 
 
 V. Bockins 1 879, 380, 381 
 
 V.Hall 1668,11 26 
 
 V. Hutchtason 1 666 
 
 V.White ilBll, 512 
 
 Ingram v. Hall i 668, 11 25, 460, 407, 483, 494, 501 
 
 V. Lea ii 670 
 
 Ingram v. Milnes ii 403 
 
 V. Webb 11 402 
 
 Ingram's Heirs v. Cocke ii 195 
 
 Inhabitants of Augusta v. Inhab. of Windsor. .1 349 
 
 Knox V. Waldoborongh 11 34 
 
 Sumner v. Lebee 11 282, 684, 687 
 
 Worcester v. Eaton i 122 
 
 Inlin V. Commonwealth 11 661 
 
 Inman v. Jackson 11 474 
 
 . V.Jenkins 1147, 397 
 
 Innis V. Campbell i 603, 641 
 
 V. Miller il 402 
 
 V. Eoane 11 110 
 
 Inacoe v. Proctor 11 698, 699, 700 
 
 Insleev. PraU 1336,358 
 
 Irby V. Little's Adm'r 11 649 
 
 V. M'Klssack ii 64 
 
 Ireland v. Kip 1 738 
 
 V. PoweU 1 175, 219 
 
 Irish T. Smith 11 975 
 
 Irvine v. Buckaloe 1 511, 514 
 
 V. Campbell i 685 
 
 v.Dlvlne 1160, 61 
 
 V. Robertson 1 700 
 
 Irving V. Greenwood i 190 
 
 V. Irving il 493, 501 
 
 V.Motley i 508 
 
 Irwin V. Conklin 1 464 
 
 V. Deyo ii 813 
 
 V. Knox 1124, 119 
 
 V. Potter' il 674 
 
 V. Eeed 1 394 
 
 V. Simpson 11 352 
 
 V. United States 11 709 
 
 Isaacs T. Camplin ii 472 
 
 Isham V. Wallace li 481 
 
 Isles V. Tucker 1 215, 405 
 
 Ivat V. Pinch ,.1189, 200, 324 
 
 Ives V. Commissioners of Insurance li 62 
 
 V. Lynn i 605 
 
 V. Picket etal 1 867 
 
 V. VanEpps 11 121 
 
 Ivey V. Orchard ii 511 
 
 Izzard v. Izzard; ii 722 
 
 J. 
 
 Jack V. Dougherty ii 656, 668, 686, 690 
 
 V. Martin i 621, li 300 
 
 Jackson v. Allen 11 632 
 
 V. Ambler ii 405 
 
 V. Anderson il 366 
 
 V. BaUey 11 813, 224 
 
 V. Barringer li 785 
 
 V. Blount U 649 
 
 V. Boueham 1 214, 250, 11 301 
 
 V. Boweu ii 373 
 
 V.Brooks 1 474 
 
 V. Browner 11 393 
 
 V. Caldwell 11 365, 366 
 
 V. Cuerden i 455 
 
 V. Davis 11 407 
 
 V. Belong li 402 
 
 V. Dickenson 1 168 
 
 V. Etz 1 214 
 
 V. Gager ii 409 
 
 V. Grfiwoia 11 8 
 
 V. Hammond ii 851 
 
 V. Hart 11 69 
 
 V. Hasbrouck 11 864 
 
 V. Heath 189, ii 674 
 
 V. Henderson 11 1002 
 
 V. Hesketh i 818 
 
 v.Hills 11 43 
 
 V. Humphrey 11 940, 1 7 
 
 V. Hunt li 402 
 
 V. Jackson 11 90, 96, 180, 188 
 
 Y. Jefllles il83, 86 
 
 V. Jones ii 393 
 
 V. Kip 11 618 
 
 V. Knlffen 1 815 
 
 V, Leek, . : 11 210 
 
 V. Mann 11 830 
 
 V. Martin 11 259 
 
 V. Mason 11 862 
 
 V. McConnell 11 785 
 
 V, McLeod 1 648 
 
 V. McVey i 201 
 
 V. Miller 11 268 
 
 V. Morse ii 474 
 
 V. Moore ii 785 
 
 V. Osborn i 607 
 
TABLE OP CASES CITBB, 
 
 CXV 
 
 Jackson v. Pierce i 678 
 
 T. Pratt ii 347 
 
 v.Eaudall ii 42 
 
 V. Bice ii 318 
 
 V. Roberts' Ex'rs ii 36B 
 
 V. Sobineon ii 19, 452 
 
 V. Eowland ii 393 
 
 V. Seager it 819 
 
 V. Seward : a (i08 
 
 V. Smitlj.." ii808, 810, 831 
 
 V. Stacey i 650 
 
 V. Stetson i 745 
 
 V.Stone iil5, 42 
 
 V. Summerville i 188,' 471 
 
 V. Vanderheyden i 466 
 
 V. Vedder ii 4, 7 
 
 V. Wotlierell i 848 
 
 V. WMte i 474 
 
 T. Wincliester i 890, 437 
 
 V. Wood ii 40, 46, 53 
 
 ex dem. Ballon v. Campbell 1461, 604 
 
 Barclay v. Hopkins ii 592 
 
 Barton v. Crissey i 392 
 
 Bates V. LawBon i 392, 402 
 
 Beekman v. Witter i 179, 221 
 
 Benson v. Matsdorf ii 701 
 
 Bogert V. King|. . .i 256, ii 283, 443, 
 606 
 
 Bond V. Eoot ii 494, 505, 554 
 
 Bonnel v. Foster ii 645 
 
 Bowman v. Cl^iBtman, ii 470, 477, 
 488, 490 
 
 Boyd T. Lewis ii 506, 952 
 
 Bradt v. Brooksi, 474, 670, ii 476, 
 
 477, 574, 618 
 
 Brown v. Betts. . . .i 662, 743, ii 518 
 
 Burbans V. Blanshaw ..11475, 477, 
 
 484 
 
 Bm-r V. Shearman, 1197, 463, ii 631, 
 
 533, 530, 815 
 
 Busb V. Hasbrouck, ii 560, 661, 562 
 
 Butler V, Widger ii 783 
 
 Caldwell T. Hallenbeck i 604 
 
 V. King.. 1604, 608, ii 687 
 
 Ohnrcb T. Hills ii 16 
 
 Clarlrv. Morse ii 472, 473 
 
 Clarke V. Eandall ii 78 
 
 Clowes V. Vanderheyden ii 646 
 
 Coe et al. v. Kniflfen, i 286, 315, 317 
 
 Golden v. Moore i 670 
 
 Collier V. Jacoby 1607 
 
 Constantino v. Warford i 664 
 
 Cook T. Shepard ii 473, 475 
 
 Craigie v. Wilkinson ii 783 
 
 De Mont v. Sackett ii 869 
 
 Dickson v. Stanley ii 771 
 
 Donaldson v. Lucett ii 660 
 
 Donnally v. Walsh i 179, 699, 
 
 ii 295 
 
 Dox V. Jackson i loO, 
 
 ii 647, 651, 657 
 
 Dnnbar v. Todd ii 661, 693 
 
 Duncan v. Harder i 646 
 
 Eames v. Phipps i 661, 663 
 
 Eden v. Eathbone i 786 
 
 v.Varick 11907,988 
 
 Edson V. Gager ii 407, 460, 493 
 
 Ellice V. Britton ii 460, 783 
 
 Erwin T.Moore ....11661, 668, 671, 
 . 783 
 
 Feeter T. Sternberg ii 646 
 
 Feller v. FeUer ii 702 
 
 Finch T. Hoagland ■. . .ii 812 
 
 Fowler v. Loomis i 714 
 
 Gansevoort v. Lunn i 663 
 
 Gibbs T. Osbom. . .1606, 11587, 590 
 
 GUlespy v. Woolaey i 390, 393, 
 
 397, 665, 670, 11 520, 533, 573 
 
 Glover v. Winslow i 603 
 
 Goodrich v. Ogden i 56, 483 
 
 Goose V. Demarest i 699 
 
 Gould T, Gould ii 683 
 
 Gratz V. Catlin ii 601 
 
 Green v. Kent ii 826, 848 
 
 Griswold v. Bard 1 314, 318 
 
 Hardenburghv. Schoonmaker, 
 
 ii 587, 590, 060 
 Havens V. Sprague.. 11739,783, 785 
 Haverly v. French. . .i 135, 137, 138 
 
 Hill v. Streeter ii 476, 743 
 
 HlJlB y, Tattle 1441 
 
 Jackson ex d. Hoogland v. Vail 1 496, u 533 
 
 Hooker v. Mather 1 757 
 
 Hopkins v. Leek i 126, ii 660, 983 
 
 Houseman v. Hart 11 772 
 
 Howell V. Delancey ii 658 
 
 Hnngerford V. Baton ..11687,690, 692 
 
 Hunt V. Luquere ii 476 
 
 Hunterv. Page 11165, 366 
 
 Jenkins v. Bobinson ii 78, 79 
 
 Johnson v. Tahnadge li 883 
 
 Kane v. Stembergh 11 375 
 
 Kellogg V. Vickory ii 686, 592 
 
 Kincard v. Scott ii 812 
 
 King V. Burtis i 146 
 
 Kip V. Murray 1 179, 671 
 
 Klock V. Eightmyre i 603, 665 
 
 Krom v. Brink x 663 
 
 Lansing v.. Chamberlain 11 494 
 
 Lewis V. Larroway . . . ii 476, 477, 869 
 Livingston v. Barringer .... 11 783, 785 
 
 V. Burton 11 480, 494 
 
 V. Delancy i 701 
 
 V. Frier ..132,11517, 532, 
 
 560, 730 
 
 v.Neely...ii 516, 633,561, 
 
 674 
 
 V. Shutt i 663 
 
 V. Ten Broeck ii 803 
 
 Loop V. Harrington i 474 
 
 Low V. Beynolds i 465 
 
 Lowell V. Parkburst 11 719, 872 
 
 Mackay V. Slater 1 679 
 
 Malin V. Malin ii 483, 861, 867 
 
 Mancius v. Lawton ii 772 
 
 Mapes V.Frost 1 130 
 
 Martin v. Pratt i 678, 11 475, 743 
 
 Marvin v. Hotchkiss 1 678, 682 
 
 McCarty v. Van Dalfsen i 693 
 
 McCrea v. Dunlqp ii 661, 664 
 
 M'Donald v. McCall 1 315, 665 
 
 Merritt v. Gumaer 11 686, 693 
 
 T.Staunton 11585 
 
 M'Fail V. Crawfords ii 79 
 
 Miller v. Hixon 11 78 
 
 V. Porter i 603 
 
 Miner v. Boneham ... 1 356, 364, ii 383, 
 770 
 
 M'Lellan v. Mather ii 806, 849 
 
 M'Naughton v. Loomis ii 782 
 
 Montgomery v. Chapin ii 592 
 
 Montressor v. Bice ii 310, 683 
 
 Munroe v. Parkburst ii 674 
 
 Murphy v. Van Hoesen ii 722, 738 
 
 Murrayv.Denn 1646, 
 
 V. Hazen 1 646 
 
 Myers v. Elsworth 1 699 
 
 Neilson v. M'Vey ... .1 145, 486,11 536 
 
 Norris v. Smith 1 465, 748 
 
 Norton v. Sheldon u 301 
 
 OTcracker t. Cole ii 784 
 
 Parker t. Phillips ii 461, 593, 612 
 
 People T. Btz i 174, 363, 264, 763, 
 
 11 978 
 
 T. Pierce i 678 
 
 T. Wendell ii 783 
 
 T.Wood i 678 
 
 Pintard t. Bodle 11 661, 662 
 
 Potter T. Bailey . . .1 390, 391, 393, 395. 
 
 Putnam v. Bowen 11 545, 
 
 Eamson V. Shepard u 
 
 Eandall V. Davis ii 
 
 Eieley v. Livingston 11 
 
 Bogers v. Clark ii 
 
 V. Gardenier ii 
 
 Boberts V. Ives ii 
 
 Boosevelt v. Stackhouse i 
 
 Boss V. Cooley i 350, 367, 
 
 Bounds V. M'CheBney..i 319, 478, 
 
 Bussell V. Croy ii 
 
 Sackett v. Sackett. . . .1 678, 683, 11 
 
 Saunders v. Caldwell ii 
 
 Sclienck v. Wood ii 
 
 Schuyler v. Bussell . .i 357, 663, ii 
 560, 
 
 Selye v. Morse il 
 
 Shav? V. Spear i 
 
 Shultz V. Goes ii 606, 761, 
 
 Sinclair v. Bailey i 
 
 Sitzer v. Waltermire ii 
 
 SMnner v. Packard ii 
 
 785 
 
 785 
 783 
 784 
 671 
 359 
 685 
 645 
 675 
 646 
 803 
 618. 
 663 
 701 
 455 
 773 
 872 
 78 
 
OXVl 
 
 TABLi; OF CASES CITED. 
 
 JackBonexd. Smith v. Marsh ii 782 
 
 V.Pierce i 671 
 
 T.Stewart i 699 
 
 Southampton v. Cooley i 455 
 
 Sparlcham v. Porter i 647 
 
 Staring t. Defendorf li 783 
 
 Sternberg v. Shaffer i 814 
 
 Stewart t. Kingsley ....'.. .li 483, 487 
 Suffern t. M'Connell . .ii 783, 786, 803 
 
 Swain t. Ransom ii 784, 739 
 
 Swartwout v. Cole. ...i 440, ii 518, 561 
 
 V. Johnson i 680 
 
 Taylor v. Oullum ii 352, 516, 534 
 
 Teed V. Salstead i 473 
 
 Ten Eyck v. ttost ii 788, 784 
 
 V. Perkins li 660, 847 
 
 V. Klchards 1 177 
 
 Titns T. Jones ii 333, 686 
 
 V. Myers 1 34, 318, 319, 32B, 
 
 11 687 
 
 Tr^cyV. Hayner 11587, 590 
 
 TrilStees, iSfcc., v. Plumhe i 746 
 
 Tiittl'e v. Gridley 110, 16 
 
 Van Alen v. Ambler 11 402 
 
 VanBiiskirk V. Claw 1 351 
 
 Van Dusen v. Scissam 11 319, 455 
 
 V. Van Duaen 1 604, 
 
 11 598, 612 
 
 Van Rensselaer v. Clark 11 963 
 
 Van Schaick v. Davis 1 32, 319, 
 
 11 47t) 
 
 V. Vincent 1 669 
 
 Van Slyck v. Son 11 876, 963 
 
 V. Vedder i 463 
 
 Van Vechten v. SiU . . .11 639, 719, 735, 
 749, 752 
 
 Van Vred?jy>iirgh v. Marsh ii 132 
 
 Varlck v. midron ... .11 460, 493, 494 
 
 Walsh V. Colden ii 587, 690 
 
 Walton v. Leggett ii 298 
 
 Watson v. Cris 1 176, 322 
 
 V. Bsty. 11473,475 
 
 Webb V. Roberts' Ex'rs. . .11 472, 473, 
 475, 574, 645, 646, 743 
 
 Webber v. Harsen z 663 
 
 Weidman v. Hnbblo 1 646 
 
 Whttlocke V. Mills 11 701 
 
 Wllklns V. Lamb 1 667, 11 477 
 
 Willianis V. Miller 1 603, 660, 664, 
 
 11 301, 701 
 
 Wltherill v. Jones 1 412, ii 743 
 
 Wood V. Harrow 11 217, 686, 592 
 
 WoodruflF T. Cody . . .i 364, ii 301, 494, 
 612, 773 
 
 v. Gilchrist ii 592 
 
 V. Tibhits 11 414 
 
 Wyckoff V. Humphrey. . .1 139, 11 587, 
 590, 930 
 
 Tates X. How li 592 
 
 Young V. Camp ii 783 
 
 Youngs v. Vredenburgh 1179, 195, 
 
 286 
 
 V. Young :i 872 
 
 Zimmerman v. Zimmerman 11 785 
 
 Jacob V. Lindsay j 11 918, 932 
 
 V. Pierce 11 8, 9 
 
 V. United States 11 149 
 
 Jacob's Case 11 447 
 
 Jacobs V. Alexander 11 661 
 
 V. Benson 11 711 
 
 V. Farrall 1 409 
 
 V. Hall 11 339 
 
 V. Hill 11 8 
 
 V. Hull 11 188, 300 
 
 V. Putnam 1 179 
 
 V. Sayborn or Layborn i 98 
 
 Jacobson's Case 1 613, 615 
 
 Jacoby v. Guler 1 740 
 
 Jacoby et al. v. Lanssat i 180 
 
 Jacock'a Lessee V; Gilliam 11 282 
 
 James V. Allen li 186 
 
 V. Botz i 665 
 
 v.Blou 1 484 
 
 V. Bostwick i 23 
 
 v. Chalmers 1 811, 830 
 
 V. Conway i 422 
 
 V. Goodrich 1 805 
 
 V. Gordon 11 510, 583, 588 
 
 V. Hackley 1 497 
 
 V. Johnson 1 608, ii 649 
 
 T. Morey 1 608, 11 592 
 
 James v. Richmond 1 873 
 
 V. Stonebanks - i 9 
 
 V. Walruth 1 866 
 
 Bx parte 1 692 
 
 Jaines' Case — ■. i 1763 
 
 Adm'r v. Neal's Adm'r 11 108 
 
 Lessee v. Gordon : 1 517 
 
 V. Stookey 1 515, ii 4, 135, 344 
 
 Jameson v. Conway 1 432 
 
 V. Drinkald 1 786 
 
 Jamln v. Norton ii 406 
 
 Jane v. Price '. .i 647 
 
 Jannin v. Scammon ii 939 
 
 Jauson V. Ostrander 1 866 
 
 January v. Goodman 1 870, 11 468 
 
 Jarman v. Humphrey 1 174 
 
 Jarvis v. SewaU u 30, 196 
 
 Jason V. Byres - S§2 
 
 Jauncey v. Thorne ^ ii 503 
 
 Jeacockv. Falkner 11 738 
 
 Jeckerv. Montgomery 1199, 171 
 
 Jefferson Ins. Co. v. Cotheal 1 786 
 
 Jeffrey v. Parsons ii 616 
 
 V.Walton ii 669 
 
 Jeffrey's Heirs v. CoUis 11 685 
 
 Jeffries v. Duncomb i 858 
 
 V. Harris 1 769 
 
 Jelt V. Oriel i 871 
 
 Jencks V. Alexander 1 732 
 
 Jenison v. Graves ii 701 
 
 V. Hapgood 1 687, 693, 11 81 
 
 Jenkins v. Blddnlph 11 582 
 
 V. Bisbee 1 261 
 
 v. Bvans i 364 
 
 V. Hogg i 460 
 
 V. Hopkins i 683 
 
 V. Jenkins i 693 
 
 v. Kinsley 11 421 
 
 V. Putnam 11 171, 177 
 
 v. Tom et al 1 174 
 
 V. TTnion T. Co ii 273 
 
 V. Waldron 11 103 
 
 Jenks V. Stebblns 11 168 
 
 Jenne v. Ward 1 602 
 
 Jenner V. Jollffe -. .1 582,11 878 
 
 V. Tracey 1 679 
 
 Jenner's Case 1 11 
 
 Jennings v. Blocker's Adm'rs 1 201, 332 
 
 V. Carter ii 165, 396 
 
 V. Chenango Co. Ins. Co 1 188, 782 
 
 V. Griffith 11 285 
 
 V. Sherwood 1 654, ii 734 
 
 V. Webster 1 177 
 
 V. Whitaker 1 466, 459, 460 
 
 Jennings' Case..,...: 1 705 
 
 Jennings, Bx parte i 609 
 
 Jennison v. Graves ii OS, 702 
 
 Jenny v. Alden 11 649 
 
 Jermain v. Denniston .1 332, 410 
 
 Jermalne v. Denniston 1332, 414, 447, 11 289 
 
 V. Worth 1 433 
 
 Jermy v. Best 1 701 
 
 Jervis v. White 11 382 
 
 Jessel V. Mlllingen 11 325, 338 
 
 Jessup V. Cook i 439 
 
 Jestons V. Brooke 11 G82 
 
 Jewell v. Center i 624, ii 340 
 
 V. Schroeppel 1855, li 694 
 
 Jewett V. Banning 1 438 
 
 V. Miller 1464 
 
 V. Reid li 649 
 
 V. Warren 11 660 
 
 Jim, a Slave v. State 1 637 
 
 Joce's Lessee v. Harris U 476 
 
 Jocelyn V. Donnel 11 406 
 
 Joe V. Hart's Ex'rs 1 683, 684 
 
 John V. John 11 336, 6.34, 665, 897 
 
 Johns V. Church 11 654, 690, 713 
 
 Johnson V. Avery 11 86 
 
 V. Beardslee 1 496 
 
 V. Blrley 1 804 
 
 V. Blackman ,1 33, 11 650, 668, 666 
 
 V. Bloodgood 1 481 
 
 V. Bourn 1129,il 4, 7 
 
 V. Brockelbank ii 672 
 
 V. Carter 1 826 
 
 V. Chase 1 568 
 
 V. Crocker i 825 
 
 V. Crowley 11 466 
 
 V. Daverne 1 143, 157, ii 600 
 
 V. Dilllard U 603 
 
TABLE OP CASES CITED. 
 
 GXVll 
 
 Johnson V. Durant 1134, ii 939 
 
 V. Emmons ii 124 
 
 V. EaiTuers' Bank i 131 
 
 V. Fowler- i 588, 593 
 
 V. Gilson ii 519 
 
 r. Goss ii929, 932 
 
 V. Gunn i STS 
 
 V. Haight ii 545 
 
 V. Hoclter ii 255 
 
 V. Hudson E. E. E. Co i 040, 811 
 
 V. Jebb ii 997 
 
 V. Johnson i 133, 476, 095 
 
 V. Lemons il 128 
 
 T. Kerr -.i 482 
 
 V. Marlborough (Dulie of ) i 606 
 
 Y. Mason ii 469 
 
 V. Miln ii 666, 673, 687 
 
 V. Pait i 827 
 
 V. Parker i 250, ii 27 
 
 V. Patterson i 335, ii 9S0 
 
 V. Eandall ii 148 
 
 V. Eannels ii 77, 86, 87, 420 
 
 V. Eeed i 696 
 
 V. Scribner ■. i 713 
 
 V. Slater i 83 
 
 V. Smith ii28, 361, 378 
 
 V. State i 83, 287, ii 230, 887. 888 
 
 V. Stedman i 218 
 
 V. Taber il78o, 786 
 
 V. TaUmadge ii 883 
 
 V. Thompson 1085, ii 131 
 
 V. Weed i 475 
 
 T. Whitlock 11 996 
 
 V. Wygant i 696 
 
 Johnson's Legatee v. Johnson's Ex'r .... .1 251, 630 
 
 Syndics v. Breedlove 1 370 
 
 Johnston V. Columb. Ins. Co 1 789 
 
 V. Bickson 11 674 
 
 V. Humphreys 1 688 
 
 V. Irwin 1 701 
 
 V. Rnight 11469, 491 
 
 V. Ludlow il 173 
 
 Johnston's Lessee v. Haines il 583, 585, 588 
 
 Jolifl'e V. Collins ii 850 
 
 JoUey V. Taylor 1 5S0, ii 539 
 
 Jones V. Bache ; 11 301 
 
 V. Becker 1 608 
 
 T. Blount •. 11500, 505 
 
 V.Boston Mill Corp 11 409 
 
 V. Brick 1 374, 379 
 
 V. Brig Phoebe ii 286 
 
 V. Brinkley ii 605 
 
 V. BuUock 1 83, il 73 
 
 v. Caswell il 674 
 
 V. Conoway 1 690, 702 
 
 V. Cook 1 865 
 
 V. Coolldge 1 122 
 
 V. Coopraer 11487,493, 494 
 
 V. Cowley 1 847 
 
 V. Crawford IL 137, 14^ 
 
 V. East Society, &c., Eochester 1 68 
 
 V. Bdney s 11 678 
 
 T.Edwards 11 530 
 
 v.Pales 11534,568, 730 
 
 V. Einch i 785 
 
 V. Port 11 8f?4 
 
 v.Hake 11 674 
 
 V. Hayes 1 621 
 
 V. HUton ,...11 530 
 
 V. Hoar 1 790 
 
 V. Hnggins 1404, ii 618 
 
 V. Hughes 11 164 
 
 v.Huflbnrt 14, 206, 497 
 
 V. Jennings 1 173 
 
 V. Jones. . . .1 186, 259, 264, 384, 408, 418, 11 99, 
 143, 492, 663 
 
 V. Laney i 624 
 
 V. Lanier 11938 
 
 V. Logwood 11 455 
 
 V. Maffet ii 431 
 
 V.Mason 122, 11 705 
 
 V. M'NeU i 186, 11 27, 28 
 
 V. Morgan ^ — 1 608 
 
 V. Murrav 1 811 
 
 V. Neale il 846 
 
 V. Newman 11 762 
 
 V. North Am. Ins. Co 11 1002 
 
 V. Norton i 83 
 
 V.Osgood 1737,111004 
 
 V. Pengree 1702 
 
 T. Percival.... i 661 
 
 Joj^jes V. Person i 685, 686, 687 
 
 v. Phoenix Bank ii 407 
 
 V. Phcenix (The) ii 886 
 
 V. Porter il 587 
 
 . V. Price 1697 
 
 V. Eandall 1611 
 
 V. Euffin 11 587 
 
 V. Sasser il 656, 657 
 
 V. Seward 1 825 
 
 V. Sluby ii 68, 71, 649 
 
 T. Scriven ii 28 
 
 V.Stroud 11577, 926 
 
 V. Tevis i 100 
 
 V. Tuhberville 1 683, 684 
 
 V. Underwood 11 469 
 
 V. VanEanst 11 818 
 
 V. ■Walker 11 110, 166, 390, 398 
 
 V. Watkins 11 699 
 
 V. Williams 11 210 
 
 V. Witter 1 482 
 
 V.Wood 1 
 
 V. Yeates ii 
 
 V. Zolllcoffer 11 
 
 Jones' Case 1 710, 
 
 Jones, q. t. v. Boss ii 
 
 Jonesboro v. M'Kee 1 
 
 V. Roe i 
 
 Joralimon v. Pierpont 1 
 
 Jordaine v. Lashbrooke 1 
 
 Jordan v. Cooper 1 32, 477, 686, 855, 11 526, 
 
 v. Hyatt 11 
 
 V. James ii 
 
 V. Stewart 1 
 
 V. White 1 
 
 V. Wilklns ii 
 
 Joy V. Hopkins .' i 778, 
 
 V. Wartz , 11 
 
 Joynes V. Statham ' 11 
 
 Judd V. Wilson ii 
 
 Judge V. Morgan i 
 
 Judge of Probate V. Briggs ii 362, 
 
 Judson V. Blanchard 1 40, 
 
 V. Eslard 11 
 
 V. Lake 11 78, 
 
 V. Waas i 
 
 Jnlia(The) ii 
 
 Juniata Bank v. Brown 1 178, 379, 384, 
 
 K. 
 
 Kachlln v. Mulhallon 1 739 
 
 Kane v. Bloodgood 1 684, 685, 687, 688, 689, 702 
 
 v. Pisher ii 116 
 
 V. Hamilton 1 698 
 
 V. Sanger 1 745, 746 
 
 V. ScoSeld 1867 
 
 Kanfelt v. Baver 1 685 
 
 Karpser v. Smith 1 376, 11 376 
 
 Karthaus v. Perrer ■ 11 402, 437 
 
 Kaughley v. Brewer i 380, 381 
 
 Kay V. Brookman ii 496, 607 
 
 V. Waghorne 11 693 
 
 Kay's Ex'r v. Kelley 1 419 
 
 Kazer v. The'State 11 6, 754 
 
 Kean v. Elce il 188, 341, 426, 427, 432 
 
 Kearney T. Smith ii 108 
 
 Keams et al. v. Keams' Bx'rs 1 449 
 
 Keating v. Price 11 696 
 
 Kecherly v. Cheer 1 126 
 
 Keck v. Appleback 11 397 
 
 Keecb,v. Sanford 1 692 
 
 Keefe v. Archdeken i 187 
 
 Keel V. Herb 1 4 
 
 Keeler v. Bartine i 744 
 
 V. Buzenbery 11 847 
 
 V. Salisbury 1 475, 520 
 
 Keeling v. Ball ii 633 
 
 Keely v. Keely 11 705 
 
 V. Ord 1 588 
 
 Keene v. Beardon i 670, 681 
 
 V, Lownshury 11 301 
 
 V. M'Bonough „ 11 33, 109, 110 
 
 V. Meade 1587, 11845 
 
 Keln V.Taylor 1 29 
 
 Kelsselhrack v. Livingston il 700 
 
 Keith V. Jones 1 825 
 
 V. Taylor 1 749 
 
 Kellar's Ex'rs v. Beolor ii 81 
 
 Keller v.Nulz 1249, 250 
 
 V. N. T. C. E. E. Co 11 1004 
 
 V. prd i 884, 589 
 
 v.Phillips 1518 
 
 1 390, 393, 400 
 
 361 
 770 
 256 
 43 
 43 
 856 
 118 
 650 
 402 
 106 
 607 
 448 
 537 
 785 
 695 
 649 
 401 
 842 
 450 
 978 
 662 
 79 
 696 
 544 
 586 
 
CXVUl 
 
 TABLE OP CASES CITED. 
 
 Kelleran v. Brown i. 
 
 Kelley V. Dimlap ii 
 
 Kelley's Case i 
 
 Kello V. Maget il 533, 
 
 Kellogg V. Kellogg i 139( 
 
 V. Krauaer i 
 
 V, Mauney : ii 
 
 T. Eicliaras Ii 664, 
 
 Ex parte H109, 
 
 Kelly V. Brookg i 
 
 v.Holdslip 1311, 
 
 V. fiooper'p Bx'rs ii 14, 66, 164, 
 
 V. Hurlburt ii 
 
 V. Jackson i 
 
 V. Powlett lirai, 
 
 V. Eoss ii 
 
 V. Thompson 1 650_, 
 
 Kelsey v. Bushi i 
 
 V. Dickson ii 671, 
 
 Kemble v. Earren i 
 
 Kemp V. Baltimore Eire Ins. Co i 
 
 V. Commonwealth i 
 
 V. MackrlU ii 604, 
 
 v. Wamack i 
 
 Kempe's Lessee v. Kennedy ii 105, 129, 143, 
 
 Kemper v. Kemper ii 
 
 V. Turner ii 
 
 Kendall v. EuBsell ii 728, 729, 
 
 T. Talbot 11 
 
 Kendrick v. State i 890, 391, 
 
 Kenedy y. Eairman i 351, 379, 
 
 V. Gregory i 
 
 V. Phillipps , i 
 
 V. Woolfolk 1 
 
 Kenneheck Bank v. Hammatt ii 
 
 V.Page 11728, 
 
 Kennedy v. Fowke ii 
 
 v. CasBilis ii 178, 
 
 V. Denoon's Ex'rs i 
 
 V. Lowry i 
 
 V. Newman , ii 
 
 V. Niles i 
 
 V. Wacksmuth ii 80, 
 
 Kenner v. Creditors ii 
 
 Kenney v. Brown i 
 
 V. Lowry ; i 
 
 Kenny v. Clarkson il 
 
 V. Van Home ii 433, 
 
 Kei^ick V. Taylor i 
 
 Kensington v. Inglis i 917, 
 
 Kent V. Garvin 1 336, 
 
 V. Harconrt 1216,570, ii 
 
 V. Kent ii 
 
 V. Lowen i 
 
 V. Waite i 
 
 V. Walton i 175, 305, 329, 
 
 V. Weld ii 610, 562, 
 
 Kentland v. Bissett i 
 
 Kentucky Bank T. Vance's Adm'r i 
 
 Kenworthy v. Scofield .-. 11 
 
 Kenyon v. People i 
 
 Kercheval v. Swqpe i 
 
 Kernochan v. N. B. Eire Ins. Co ii 
 
 Kerns v. Swope ii 609, 583, 
 
 Kerr v. Gilmore ii 
 
 V. Love i 378, 
 
 V. Moon's Devisees ii 
 
 V. Shedden ii 
 
 Keealer v. M'Conachy i 379, 380, 
 
 Ketchum v. Clark ii 
 
 Ketland v. Bissett il 
 
 Key V. Lynn ii 
 
 V. Walker ii 
 
 Keyes v. Keyes 1 
 
 Keys V. Powell ii 
 
 Keyser v. M'Kissan i 
 
 Keyton's Adm'x v. Bradford ii 
 
 Kibho V. Kibbe ii 188, 108. 
 
 Kibby v. Rucker ii 
 
 Kidd V. Alexander ii 
 
 V, Cromwoll Ii 
 
 v. Eiddle i 33, ii 
 
 Kidder v. Lovell 1 186, 187, 
 
 Kiddie v. Dobrutz ii 
 
 Kidney v. Coussmaker i 
 
 Kierau v. Johnson ii 
 
 Kilburu v. Woodworth ii 107, 2OO, 
 
 Kilheffer v. Herr ii 20, 32, 37, 
 
 Killingsworth v. Bradford i 
 
 Kimball v. Huntington i 
 
 V. Keys i 
 
 Kimball v. Lamaon i 29, 4R 
 
 V. Lopez ii 375 
 
 V. Monell ii 514 
 
 V. Morrell 1197,11532. 755 
 
 V.Walker 1 672 
 
 Kimmell v. Kimmell i 764, ii 953, 066 
 
 Kincaid v. Purcell i 29, 46 
 
 Kine v. Beaumont ii 540, 546 
 
 King v. Antrobus 1 231 
 
 V.Baker , ■. i 35 
 
 V. Bath wick (Inhabitants of) i 85, ii 379 
 
 V. Blackman i 163 
 
 V. Bonner i 292 
 
 V. Bozarth ii 114 
 
 V. Bridge ii IDS 
 
 V. Buckingham ii 315, 318 
 
 V. Chilverscoten, (Inhab.) ii 473 
 
 V. Commonwealth i 290 
 
 V. Colton i 232, 246 
 
 V. Cope i 363 
 
 V. Culpepper ii 611 
 
 V. Danser ii 139 
 
 V. Davis i 561 
 
 V. Dudman, ii 384 
 
 V. Foster 1 184 
 
 V. Puller il 117 
 
 V. Gilder ii 186 
 
 V. Gould i 555 
 
 V. Griffin i 556 ■ 
 
 V. Harris i 835 
 
 V. Horsley ii 809 
 
 V- Inhabitants of Wareton i 232 
 
 V. Jenkins i 566 
 
 V. Jones i 556, ii 866 
 
 V. King ii 645 
 
 V. Kinny ii 1001 
 
 V. Lewis 1 561 
 
 V. Lowry i 74, ii 548 
 
 V. Luckup i ii 867 
 
 V. Madux's Ex'rs i 348, 410 
 
 V. Mawbey ii 435 
 
 V. Miller ii 802 
 
 V. Moorcritchell (Inhab.) ii 472 
 
 V. Morphew ii 865 
 
 V. Myers ii 649 
 
 V. Newman 11 649 
 
 V. Paddock i 641 
 
 V. Phillips i 759 
 
 V. Pountney i 544 
 
 V. Eatcliffe ii 862 
 
 V. Simpson i 549 
 
 V. Sims ii 810 
 
 V. Smith ii 468, 469 
 
 V. Spencer i 548 
 
 V. Spilsbury i 293 
 
 V. Stubbs ii650, 698 
 
 V. Tiffany i 654, 657 
 
 V. Trustees of Northleach, &c ii 321 
 
 V. Vanbilder ii 189, 422 
 
 V. Vaughan ii 810 
 
 V. Wardens of Merch. Tail. Co ii 321 
 
 V. Washbrook (Inhab. of) ii 411 
 
 V. Williams ii 865 
 
 V. Witherly ii 561 
 
 V. Woodruff ii 666 
 
 of Spain v. Oliver ii 864, 867 
 
 Kingsland v. Eoberts 1 689 
 
 v. Tirconnell i 685 
 
 Kingsley v. Vernon i 466, 465 
 
 Kingston V. Kincaid ii 404 
 
 V. Lesley i 664, 11281, 301 
 
 V. Phelps ii 401, 408 
 
 Kingston's (Duchess of) Case ii 40, 76 
 
 Kingwood v. Bethlehem . . . .ii 460, 469, 501, 633, 666 
 
 Kinloch v. Palmer i 605, ii 904 
 
 Kinne v. Kinne i 785 
 
 Kinney v. Plynn ii 402 
 
 Kinnoul (Earl of) v. Money i 611 
 
 Kinsey v. Ford ii 195 
 
 Kinsman v. Crooke ii 209 
 
 V. N. Y. Mutual lus. Co 1 815 
 
 Kip's Case 1 43, ii 937 
 
 Kip V. Brigham ! . il 8, 9, 53, 361 
 
 V. Denniston i 476, ii 656 
 
 Matter of ii 847 
 
 Kirby, Ex parte il 939 
 
 V. Hewett i 889 
 
 Kirk V. Eddewes ii 638 
 
 V. Nowill i 745 
 
 Kirkham v. Smith « i 608 
 
 Klrkland V. His Creditors il 106 
 
TABLE OF CASES CITED. 
 
 cxix 
 
 Kirkland v. Smith ii 424 
 
 Klptland t. Wenzer et al li 260 
 
 Klst V. Atkinson ii 29, 30 
 
 Kitchen t. Bartsch ii 802 
 
 Y. Place i GOT 
 
 T. Tyson iSTO, ii 950 
 
 Kittle V. Van Dyck ,' i 732 
 
 Kittles T. Kittles i 188, 332 
 
 Kittridge v. Bellowes ii 373, 374, 376 
 
 Kitty V. Fitzhngh ii 125 
 
 Heine v. Catara ii 403 
 
 Klinefelter's Lessee t. Carey i 690 
 
 Knappy. Hanford 323, 503 
 
 T. Harden ii 670 
 
 V. Haskall li 879 
 
 V. Knapp ii 617 
 
 v. Smith 1519,785 
 
 KnifiFenv. McConnell :.i 760 
 
 Knight V. Adamson i 666 
 
 ¥. Clements i 607 
 
 T. Martin ii 521 
 
 T.Mitchell i 835 
 
 T. New England Worsted Co i 412 
 
 V. Packard i 129, 32 
 
 Knight's Case ii 337 
 
 Lessee v. Pechen ii 807 
 
 Knights T. Putnam i 123 
 
 Knower T. Wesson i 689 
 
 Knowles v. Connecticut i 844 
 
 V. Don i 232 
 
 T. McCamly 1 823 
 
 V. Spence i 679, 680 
 
 Knox T. Jenks i 666 
 
 v. Silloway ii 476, 480, 484, 620 
 
 y. Waldoborough ii 33 
 
 V. Work i 854 
 
 Kolh T. Whitely i 203 
 
 Kooglery. Huffman ii 64, 128 
 
 Koop V. Handy ii 672 
 
 Kraft T. Wickey ii 86, 160 
 
 Krider v. Lafferty ii 650, 725 
 
 V. Nargong ii 587 
 
 Kngler v. Wiseman i 386 
 
 Knhn v. Miller ii 186, 189, 422 
 
 Kuhtman v. Brown ii 319 
 
 Kuncle v. Knncle ii 402, 405 
 
 L. 
 
 Labar v. Koplen i 44, 65 
 
 Labron v. Woram ii 1004 
 
 Lacey, Ex parte 1 693, 693 
 
 Lacon v. Briggs i 682 
 
 V. Higgins i 817, ii 428 
 
 Lacy V. Kenley ii 147 
 
 Ladbroke v. Giles et al i 833 
 
 T. James ii 148 
 
 Ladd V. Blunt ii 346, 373, 374, 386 
 
 Lade v. Holford i 670 
 
 T. Shepherd i 610 
 
 Ladson v. Ward ii 705 
 
 Laduev. Tan Vechten i 44 
 
 La Farge v. Kneeland i 402, 439 
 
 T. Lnce ii 812 
 
 T. Morgan ii 268 
 
 T. Eickert ii 668, 694 
 
 Lafon's Ex'rs v. Dessessart ii 106, 108 
 
 Ex'x T. Gravier ii 861, 862, 868 
 
 La Frombois t. Jackson i 192 
 
 Lagow V. Patterson ii 530 
 
 La Grille's Case i 769 
 
 Laing v. United Ins. Co ii 173 
 
 Lake v. People i 287, 778 
 
 V. Tysen i 675 
 
 v. Tlumas i 681 
 
 Lallon V. Jones i 697 
 
 Lamalere v. Caze ii 903, 975, 976 
 
 Lamar v. Jones i 679 
 
 Laub V. Buckmiller ii 785 
 
 Lamb v. Hart i 372 
 
 v. Moberly i 588, ii 511 
 
 V. Stewart ii 975 
 
 Lambert v. Sandford ii no 
 
 T. Seely i 477 
 
 V. State i 297, 298 
 
 Lamey v. Bishop i 871 
 
 Lammat T. Browby li 699 
 
 L' Amoreaux v. Vischer i 464 
 
 Lamott T. Hudson K. Ins. Co ii 664 
 
 Lampman v. Milks 1 656 
 
 Lampen v. Kedgewin ii 33 
 
 LampBon v. Fletcher i 482 
 
 Lamptou v. Jones '. ii 725 
 
 V. Lampton's Ex'rs i 39 
 
 Lanauze t. Palmer ii 513, 540, 544 
 
 Lancaster v. Laire ii 18, 66 
 
 Canal Co. v. Pamaby 1 812 
 
 Lance v. McKenzie i 383 
 
 Lancum v. Lovell i 43, ii 131 
 
 Landis v. Urie i 870 
 
 Landsdale x. Brashear i 671 
 
 Lane v. Cook ii 35 
 
 V. Cole ii 814 
 
 V. Harris ii 340 
 
 V.Harrison ii 32 
 
 V. M'Kenzie i 372 
 
 V. Padleford i 136 
 
 V. Shears i 604 
 
 V. Stanhope (Earl of) ii 722, 762 
 
 Laney v. Bishop i 871 
 
 Langdon v. Buel i 693 
 
 V. Hulls ii 545 
 
 T.Potter ii 86 
 
 T. Strong ii 474 
 
 Langendyck V. Burhans ii 42 
 
 Langer v. Felton i 124, 130 
 
 Langham t. Sandford ii 753, 762. 
 
 Langley v. Chute i 659 
 
 Langslow v. Cox ii 325 
 
 Langworthy v. Smith ii 694 
 
 Lanning's Lessee v. Case i 55 
 
 T.Dolph 11364,366,587 
 
 Lannnm v. Brook's Lessee ii 58S 
 
 Lansdale v. Brashear ' 1 689 
 
 Lansing v. Coley ii 260 
 
 T. Gaines et al i 442, 474, ii 574 
 
 V. Gale & Ten Eyck ii 276 
 
 V. Lansing ii 109 
 
 T. M'KiUip i 849 
 
 V. Montgomery i 746, 853, ii 6 
 
 V. HuBseil ii 343 
 
 T. Starr i 689 
 
 Lanuse t. Barker ii 1003 
 
 Lany v. Bishop i 871 
 
 Laralde v. Derbigny ii 8 
 
 Larkin v. Kobbins ii 401 
 
 Larrat v. Carlier ii 865 
 
 Larrimer's Lessee v. Irwin ii 83 
 
 Lartigiie v. Baldwin ii 133 
 
 Larue v. Rowland 16, 386 
 
 Las Caggas v. Larionda's Syndics ii 253, 588, 594 
 
 Lasher's Lessee v. Lewin ii 663 
 
 Lasselle v. Brown i 517, 578 
 
 Latapie v. Gravier i 463 
 
 Latham v. Edgerton ii 20, 148 
 
 Lathrope v. Blake ii 664, 714 
 
 Latimer v. Eglin ii 433 
 
 Lattlmore v. Harsen ii 693 
 
 Lattin v. Tail ii 674 
 
 Laughlin v. State i 184 
 
 Laughton v. Atkins 11 75," 78 
 
 Lautermilch v. Kneagy ii 490, 492, 505 
 
 Laverty V. Moore ." i 464 
 
 Law V. Jackson ii 1006 
 
 V. Merrills i 463, U 879, 1001 
 
 V. Scott il33. 164 
 
 Lawall v. Eeeder ii 744 
 
 Lawless v. Jones ii 783 
 
 Lawley v. Lawley i 685 
 
 Lawrence v. Baker ii 903 
 
 V. Bali i 679 
 
 V. Barker. . .i 375, 825, 847, ii 903, 904, 920, 
 
 982 
 
 V. Beanbin ii 699 
 
 T. Blow ii 674 
 
 V. Brown i 464 
 
 V. Campbell ii 9 
 
 T.Dixon ii 281 
 
 V. Fox ^. i 457 
 
 V. Hooker ii 331 
 
 v. Hopkins i 428 
 
 V. Houghton li 395, 872 
 
 T. Hunt i 391, ii 9, 40, 44 
 
 V. McCready i 828 
 
 V. M'Gregor ii 727, 728, 793 
 
 V. Obee 1 649 
 
 T. Ocean Ins. Co. . . .ii 69, 70, 316, 332, 334 
 
 V. Schuylkill Nav. Co 1 476 
 
 v. Sebor ii 724 
 
 T. Stonington Bank ii 728 
 
 T. Swan ii 210 
 
 V. Tucker ii 647 
 
 T. Trustees, &c i 500 
 
cxx 
 
 TABLE OP CASES CITED. 
 
 Lawrence v. WiUiams i 832 
 
 V. yan Horn ii 536, B38, 724 
 
 T. Visclier i 464 
 
 Ex Parte ii 373 
 
 Laweon v. Scott ii 1002 
 
 V. State i 445 
 
 Lawther v. Chappel i 491 
 
 Lawton T. Eivers 1 651 
 
 Lay T. LawBon ^ i 104 
 
 Layfield's Case ii 332 
 
 Lay Grae y. Peterson i 484 
 
 Layten v. Haygood i 40 
 
 Laythoaip y. Bryant ii 460 
 
 Layton v. Menard's SyndicB 1 825 
 
 LazaruB' Case '....■ i 601 
 
 Lessee y. Bryson i 692 
 
 Lazell y. Miller ii 31 
 
 Leacli y. Beardslee ii 789 
 
 T. Kelsey i 98 
 
 y. SlieparS. 1 378 
 
 LeafF y. Butt ii 527 
 
 Leake y. Gilchrist ii 86, 87, 88 
 
 y. Eandall ii 753 
 
 Lear y. Yarnell ii 673, 674, 682 
 
 Learned y. Bryant ii 373 
 
 Leary v. Dearbome ii 893 
 
 Leary's Case ii 979 
 
 Leatlier y. Poultney 11 8 
 
 Leayeiiwortli y. Plielps i 384 
 
 Leayitt y. Elatcliford ii 466 
 
 V. Sims ii 640, 545, 728 
 
 Leazure y. Hillegas li 346, 588 
 
 Le Baron v. Crombie ...'.'..', i 394, ii 310 
 
 y. Kedman ...'.".'."...' i 98 
 
 Le Cesne v. Cottin ii 86 
 
 Lee V. Adklns ii 155 
 
 y. Andrews , ii 864, 868 
 
 y. JBank qf England ii S(i 
 
 V. Biddis ii 667 
 
 V. Brown i 699, 700 
 
 y. Clark li 4 
 
 y. Cooke i 605, 814 
 
 V. Curtiss ii 109 
 
 y. Hayens ; ii 86, 87 
 
 V. MassachusettB Fire Ins. Co ii ,660 
 
 V. Tapscot 14, 321, 222, ii 588 
 
 y. Tinges '. ii 889 
 
 y. Ware ii 432, 674, 687 
 
 y. Wharton ii 480 
 
 y. Woolsey i 748 
 
 Lee's Heirs y. Lee's Ex'rs i 604 
 
 Leech y. Armitage ji 337 
 
 Leeds y. Cook ; . . .ii 521 
 
 y. Mar. Ins. Co i 511, ii 73, 73 
 
 Lees y. Nuttall ii 701 
 
 y. Whitcomb 1 849 
 
 Le Farrant v. Spencer ii 721 
 
 Le Fehure y. Warden i 353 
 
 Leteyer v. Lefeyer i 759 
 
 Le Feyre y. Le Feyrc ii 692 
 
 Leffert V. De'Mott i 73 
 
 Lefflngwell v. Elliot ii 645, 722 
 
 Le Force y. Robinson i 442, 463 
 
 Leftwich y. Berkley i 853 
 
 Leger y. Doyle i 202, 264 
 
 Legg y. Legg i 611, ii 274, 428, 439 
 
 V. McNiel 1 57 
 
 V. Kobinson i 717 
 
 Legget y. Banlc of Pennsylyania ii 1003 
 
 Leggett y. Boyd i 256, 256, 351, 866, 833 
 
 y. Dubois ii 701 
 
 ■Leghy. Legh i 480 
 
 Legrand v. Hampd. Sid. College ii 273 
 
 y. Eedinger ii 830 
 
 Le Gueu v. Gouverneur ii 29 
 
 Lehman y. Brooklyn i 572 
 
 Leigh y. Ward . . . „ 1 623 
 
 Leland v. Cameron i 349, 669, ii 553 
 
 y. Stone ii (il7, li5i;, 719, 731, 753 
 
 V. Willnnson ii 433 
 
 Leman V. Nownham i 078 
 
 Lomaster v. Buokhart ii 098, 700 
 
 Leug V. Wheeler ii 612 
 
 Lenox y. Dehaas i .33 
 
 Lenty. Hodgman ii 070 
 
 y. Paddletord i 869 
 
 Lentz V. Stroh i 127 
 
 Leonard y. Franklin i 757 
 
 V. Iluntingtou .' ii 286 
 
 y. Leonard i 785, li 75 
 
 y. Pituoy i 703 
 
 Leonardayille Bank y. Willard i 582 
 
 Lepiot y. Brown ii 761 
 
 Lesley y. Ehoades i 692, 693 
 
 Lester y. Jenkins 11378 
 
 y. Jewett i 843, 854 
 
 y.McDowell 1 98 
 
 y. Thompson ii 116 
 
 y. Wright i 823 
 
 Letcher v. Armstrong '. . . ii ^01 
 
 y. Letcher ii 703 
 
 Lethbridge y. Phillips '. i 127 
 
 Lethulier's Case ii 727, 788 
 
 Letts y. Brooks i 264 
 
 Leyan's Lessee y. Hart. . , i 32 
 
 Levenworth y. Phelps i 384 
 
 Leyeringe y. Dayton. . ; i 374, 382, ii 359, 421 " 
 
 Leyezey y. Gorgas ii 404 
 
 Leyingsworth y. Fox 1 605. 
 
 Leyy y. Ballard ii 504 
 
 y. Burley i 33 
 
 y. Cadet 1 491 
 
 y. Gadsby i 739, ii 274 
 
 y. Hampton i 677 
 
 y. Pope i 483 
 
 V. WJlBon ; i 808 
 
 Lewin y. DUle; i 343, 385, li 219 
 
 Lewis y. Beatty li 512, 515, 588 
 
 y. Blair,. . . * ii 373 
 
 V. Brackenndge ii 133 
 
 y. Brooks ii 118 
 
 y. Clark ii 144 
 
 y. Few ii 1009 
 
 y. Fort ii 343 
 
 V. Hawley ii 1001 
 
 y. Knox ii 138, 131 
 
 T. Kramer; -.! ^01 
 
 V. Lewis ii 503 
 
 V. Long i 481 
 
 y. Manly i 170 
 
 y. Marshall i 264. 688, ii 281 
 
 V. Morgan 1 745 
 
 y. Nangle i 611 
 
 y. Paine i 603 
 
 y. Price i 649 
 
 y. Eobards ii 649 
 
 V. Sapio ii 598 
 
 V. Spencer ii 119 
 
 y. Smith - ii 126 
 
 y. Smith ii 126 
 
 y. Trickey i 785 
 
 y. Teynham I 684 
 
 V. Thatcher ii 798 
 
 V. Wildman li 405 
 
 y. Woodworth 1 491, 500 
 
 Lewis and Herrick y. Chapman 1 166 
 
 Lewis's Ex'r y. Bacon's Legatee i 384 
 
 y. Norton 1 348 
 
 Heirs y. Lewis's Ex'rs ii 81 
 
 Libby y. Burnham ii 129, 143 
 
 Libbeyv. Waffle i 474 
 
 Liebman y. Pooloy i 508, ii 535, 569 
 
 Lies y. Stubb i 83 
 
 Life and Fire Ins. Co. y. Mcch. Fire Ins. 
 
 Co i, 602, ii 520, 536 
 
 Liggins y. Inge i 460 
 
 Llghtner y. Martin ,..i 331 
 
 y. Wike i 199, 391, 895, 398, 484 
 
 Ligon y. Orleans Nay. Co 1 403, ii 386 
 
 Like V. Howe 1 435, 458 
 
 Lilly's Lessee v. Kitzmillcr i 233 
 
 Liuborgor y. Latourettc i 374 
 
 Line v. Mack ii 483 
 
 Lincoln y. Barr . , i 779 
 
 V. Snratcioia E. R. Co i 785 
 
 V. Batlolir i 619, ii 339,«41, 854, 41S 
 
 V. OraiuU'll i 520, ii 691 
 
 Liudaury. Dol Ins. Co ii 214 
 
 Lindenberger y. Boall ii 545 
 
 y. Eosscau * 424 
 
 Lindley y. Crayens ii 118 
 
 y. Sharp ii 6-19, 6S2 
 
 Lindsay v. Commonwealth ii 33 
 
 V. Scroggs ii 3itl 
 
 V. Williams i 69t 
 
 Lindsey y. Miller i 701 
 
 Liugany. Henderson ii ('..Vi, 656 
 
 Lining y. Bentham ii 129, 142 
 
 Linnoll y. Suthrrland i n, 37."> 
 
 Lining v. Crawford ii 5SS 
 
 Linscott y. Fernald 11, 646, 720, 784 
 
 Liusleyy. Keys ..i 7.15 
 
TABLE OF CASES CITED. 
 
 CXXl 
 
 BiUBley V. Loveley il04, ii 709 
 
 IdSny. BnrtiB i 812 
 
 lApe T. Mitchell's Lessee ii 166, 389 
 
 Iii^pincdtt V. Barker 1 609 
 
 LlpscoimbeT. Holmes i 460 
 
 List V. Woodruff ii 428 
 
 List's Case 11631 
 
 Liston V.Hardy i 98 
 
 Litchfield V. Burwell 1 486 
 
 Litchfield v. Farmlngton 1 741 
 
 Little V. Allison 1 201 
 
 V. Clark ' ii 277 
 
 V. Belancey 11 371,511, 520 
 
 V. Hasey <..ll 146 
 
 V. Holland I 855 
 
 T. Moore 11 145 
 
 T. C'Brian ii 674 
 
 T. Wyatt i 385 
 
 Littleljnry v. Wright i 822 
 
 Littlefield v. Getchell 1 201 
 
 v. Story i 481 
 
 Littlejohn t. Gnrley i 820 
 
 Liitlejohu t. TJnderhiU's Bx'r ii 143 
 
 Littleton v. Cross. U 360 
 
 V. Moses ii 1001 
 
 Litton V. Litton 1 690 
 
 Livermorev. Badgley ii 372 
 
 V. Herschell i 831, ii 28 
 
 Llyett T. Wilson i 650, 659, 669 
 
 Livingston v. Bishop i 854, 11 53 
 
 V. DeLancey i 701 
 
 V. Flnkle ii 47 
 
 V.Harris 11 937 
 
 V. Kiersted 14^ 9 
 
 V. Livingston ii 701 
 
 V. Maryland Ins. Co 11 433 
 
 V.Peru Iron Co 1603 647 
 
 V. Eodgers U 617, 533, 534, 554, 560 
 
 V. TenBroeck 11 803 
 
 , .V.Tompkins 11937 
 
 Livingston's Ex'rs V. Livingston 599, 673, 702 
 
 LlaVelock v. Cheyely 1 808 
 
 Llewellyn v. Mackworth i 685, 686 
 
 Lloyd V. Anglin li 375 
 
 V. Collet 1 698 
 
 v.Freshfield 1137, 11577, 918 
 
 V. Ingliss 11649 
 
 . V. Jewell 11 674 
 
 V. Keanh 11 674 
 
 V. Sandiland 1 676 
 
 V. Scott ii 682 
 
 V. Spillet ii 702 
 
 T..Tavlor 11 635 
 
 Lock V. Whiting ii 645 
 
 Lockey v. Lockey i 688, ii 688, 690 
 
 V. Schrieher 1336, 385 
 
 Lockridge v. Carlisle ii 688 
 
 Loekvrood V. Ewer 1679 
 
 V. Sturdevant i 608, ii 472, 474 
 
 V. Thorn 1 451 
 
 Loder v. Phelps ■ ■ .11, 147, 164 
 
 Lodge V. Berrier ' ii 588 
 
 V. Pipher i 35, ii 608, 614 
 
 Lodgson V. Koljerts' Bx'rs ii 40l, 409 
 
 Lofiiand V. Ewing i 742 
 
 V. EusseU 11 774 
 
 Lottinv. Higgins. ii 373 
 
 Lofts V. Hudsdn 1 427, 441 
 
 Logan V. Slggerton li 146 
 
 V. State 1 289 
 
 V. Steele's Heirs 1466, ii 64 
 
 V. Watts 11 78 
 
 Lohmanv. People 11940, 980 
 
 Lokerv. Haynes 1122, 130 
 
 London Packet (The) ii 844 
 
 Lonergan v. EoyalExch. Insurance 11813 
 
 Long v. Bailie 11 938, 939 
 
 V. Beaumont ii 749 
 
 V. Champion ii 73 
 
 V. Colburn ii 691 
 
 V.Davis ....i 392,393,394, 11 383 
 
 V. Depuy 11 68 
 
 V. Hitchcock 11 889 
 
 V. Lamkln 11904, 975 
 
 V. Long 1 33 
 
 V. Eamsay ii465, 1001 
 
 V. Slelger ii 989 
 
 Long's Case 1 542 
 
 Usseev. Pellet., 
 ineck 
 
 LogenSEfcer V. Hyde i 176, 302, 308 
 
 Logue V. Link i 519 
 
 Loguev. GiUich , 1 TOl 
 
 Lonsdale v. Brown 1 126, ,11 670, 846 
 
 Looker v. Halcomb 1 752 
 
 Loomisv. Pulver liSO, 674 
 
 ,v. Wadhams i 568 
 
 .SJacksonv. Levins 1485,491 
 
 Loopy. Summers H 02 
 
 Lppes V. De Tastet .1838,857,11 812 
 
 Lopez T. Andrews '. 1 660, 669 
 
 Lordv. Cook 11864, 866 
 
 V. Sutcliffe ii 706 
 
 V. Wardle ......ii 685 
 
 Buckhurst's Case ii 521 
 
 Loring v. Bridge ii 28 
 
 v.Gnmey U 728 
 
 V.Mansfield ii 32 
 
 V.Woodward , }} 640 
 
 Lorenz v. King ii 147 
 
 Lorton V. Gore 1 688, 11516, 561 
 
 Losee v. Losee : i 215 
 
 Lottv. Burrill....... ii 873 
 
 Louisiana State Bank v. Eowel ii 549 
 
 Lounsbury V. Purdy 1 825 
 
 Lowenstein V. Mcintosh i 464 
 
 V. Mcintosh ii 402 
 
 Louth V. Eobinson 1 519 
 
 Louw V. Davis ii 119 
 
 Love V. Braxton ii 68 
 
 V. Buckner 11 684 
 
 V. Cofer 11 669, 700 
 
 V. Palmer 11 674 
 
 V. Payton '. ii 493 
 
 Lovedon v. Lov*den 1 600 
 
 Lovell V. Arnold ii 53 
 
 V. Briggs 1693, 693, 751 
 
 V. Field 11 1003 
 
 Lovelace (Lord) Case of ii 457 
 
 Lovett V. Eobinson 1 519 
 
 Lowv. Mnmford 1853, 864 
 
 V.Payne 1 410 
 
 V. Price 11 149 
 
 V. Treadw6U ii 675, 680, 696, 700 
 
 Lowe V. Boteler et al .1 496 
 
 V. Lord HUntingtower ii 722, 764 
 
 Payne 1343,386 
 
 Lowell V. Parkhurst ii 739 
 
 Lower V. Winters 1847,11904, 958 
 
 Lowfieldv. Stoneham -,-.n 763 
 
 Lowndes V. Campbell ,..■...11 405 
 
 V. Chisliolm ii 699 
 
 Lownds V. Remsen .ir 349 
 
 'Lowry V. Brooks i'849 
 
 V. Cady 11 35?, 369, 373, 377 
 
 V. Mountjoy ' ii 1009 
 
 V. Pinson .11,511 
 
 Lowther v. Lowther i 692 
 
 Loyd V. Freshfield ii 918 
 
 Lozier V. Commonwealth.. '.■ 1 55 
 
 V. Westcott ....i 607, ii 196, 417 
 
 Lucas V. Curry's Bx'rs ii 82, 118, 133, 
 
 V. State 1 -80 
 
 V. Wirson ii 405 
 
 Luce V. Sinvely , ii 560 
 
 Luciani v. Ainer. Fire Ins. Co ii 694 
 
 Lucking V. Denning 11 107 
 
 Lucy V. Pumfrey 11 717 
 
 Ludden v. Leavltt 1 647 
 
 Ludlpw V. Simons. 11 467 
 
 V. Union Ins. Co ii 286 
 
 Ludwick V. Croll i 467, 483 
 
 Luflborough v. Parker ii 586, 588 
 
 Lum v. Kelso et al 11 354, 366 
 
 Lunningv. State ,1 779 
 
 LunsforJ v. Smith 11 510, &1% 563 , 
 
 Lurton v. Carson 11 1002' 
 
 Lush V. Druse i 200, 11 606, -783,,. 
 
 V. McDaniel i 779' 
 
 Lusk V. Colvin 11 884 
 
 Luttrell v. Eeynell ii 978 
 
 Lyford v Coward i 666 
 
 Lyles V. Brown 11 83, 133 
 
 V. Caldwell 11 83,133 
 
 V. Lyles ..'. .' 1 689 
 
 V. Eobinson 11 90, 163 
 
 Lyman v. Lyman ii 377 
 
 V. United States Ins. Co 11 700 
 
 Lynch v. Bischoff 1 697 
 
 V.Hugo i 381 
 
 v. Postlethwaite ii 493, 500 
 
 Lynch's Adm'r ads. Petrie 1 372. 383 
 
 Lynde v. Judd '. .' 1 146, 11 363 
 
 Vol. I. 
 
 16a 
 
exxii 
 
 TABLE OF CASES CITED. 
 
 tynden T. Blythe ilS4 
 
 Lyne, Ex parte ii 823 
 
 Lynn V. Eiaberg 11716 
 
 Lyon V. Chalker 11 124, 127 
 
 V.Clark 1843,804 
 
 V. Lymaa 11 599, 604, 606 
 
 V. Manley 11 394 
 
 V. Eichmond 11 699 
 
 v.Sandford ii 63 
 
 Lyons v. Gregory 11 3B1, 352 
 
 LyBon V. BlObSom 11 414 
 
 Lyster v. Lyster 1 692 
 
 m:. 
 
 Macarty v. Bond's Adm'r 11 686, 946 
 
 Macclesfield's Case .... , 11 929 
 
 Macterson v. Tlioytes ii 611, 614 
 
 Machlr T. M'Dowell u 698 
 
 Mackaboy v. Commonwealtli . . .1 142, 161, 162, 11 267 
 
 Mackay v. Bloodgood 11 457 
 
 Mackee v. Calmes 11 188 
 
 Mackenzie v. Hudson ii 868 
 
 V. Mackenzie ii 706 
 
 Macker'a Heirs V. Thomas 11 996 
 
 Mackey t. Brownfield . . .'. 11 650 
 
 Maoleod v. Wakely 1 443, 603 
 
 Maclin t. Wilson ii 830 
 
 Macnally's Case 11 389 
 
 Macomber V. Parker Ii 732 
 
 Macon v. Cook 11 129 
 
 V. Crump 1 866 
 
 Macretb v. Marlar 1 698 
 
 (Sir R.) Ex parte 1 701 
 
 M' Adams v. Stilwell 1 390, 391, 893 
 
 Maddison v. Andrew 11 703 
 
 V. Nuttall 1 337, 528 
 
 Haddock v. Bond ' 1 702 
 
 Maddox v. Maddox 1 133 
 
 Maeill v. Hinsdale ' 11 691 
 
 y. Kauffman 1 394, 395, 488 
 
 Magee V. Osborn 11597,657 
 
 Magill V. Lyman 11 1001 
 
 Magne v. Seymour , — 11 268 
 
 Magniac v. Thompson ii 1000 
 
 Magow's Case ,. 1 608 
 
 MagrathT. Muskerry i 698 
 
 Magruder v. Peter , 11 472 
 
 Maguarin v. Patterson 11 32, 44 
 
 Mahoney v. Ashton 1 174, 11 42 
 
 Mahurin T. Bicktord 11 189, 417, 4S3 
 
 Maigley V. Hauor 11656, 658 
 
 Main v. Hewson 11 875 
 
 T. Stevens 1 77 
 
 Maingay v. Gahan ii 74, 107, 129 
 
 Malnwaring v. Giles 1 659 
 
 Major V. Deer 1 107, 127, 129 
 
 Makepeace v. Bancroft ii 756 
 
 Malcolm v. Bay ii 808, 831 
 
 Male V. Roberts li 430 
 
 Malev V. Shattuck ii 173 
 
 Malinv. Malin 1463, 713, ii 701 
 
 M'Allister v. Marshall 1 609 
 
 V. Montgomery ii 708 
 
 V. Eeab 1 375, 379, 603, ii 131 
 
 M'Allister' s Lessee V. Williams .., ii 874 
 
 Mallory V. Aspinwall 11 663 
 
 V. walls 11787 
 
 Malone'sCase ii 942 
 
 Malone v. Georgia i 564, , 565 
 
 V. Home 1 130 
 
 V. Malone i 699 
 
 V. Stephens 11 538 
 
 I V. The Mary ii 286 
 
 Maloney r. Qibbons ii 199 
 
 Malpioa v. M'Kown ii 420 
 
 Mauby v. Lodge i 310 
 
 Manchester Iron Co. v. Sweeting i 82 
 
 Mandeville v. Perry 111003 
 
 V.Welch 1 483 
 
 Mandaloy V. Le Blank 1 108 
 
 Manhattan Co. v. Ledyard i 807 
 
 V, Lodig 1447,401, 509 
 
 V. Osgood 1 502 
 
 Mankin v. Chandler ii 62, 171 
 
 Mann v. Eckford ii 684, 686 
 
 V. Givens ii 588 
 
 V. Mann 11 639, 702, 749, 763 
 
 v. Marsli i 466 
 
 V. Pearson ii 783 
 
 V. Swan i 120 
 
 Manning v. Monaghan i 693 
 
 Manning v. Norwood 1 456 
 
 v. Smith 1 656 
 
 V. Wheatland 1 132 
 
 Ex parte ii 836 
 
 Mannup v. Beekman Ins. Co... ii 683, 790 
 
 Manny v. Harris 1123, 46 
 
 Mansel V. Price ii 752 
 
 Maples y. Wightman i 822 
 
 Marbury v. Madison 1 164, li 929, 9.39 
 
 March v. Harrall 11 974 
 
 Marchand v. Grade ii 81 
 
 Marclay v. Shultz 1364, 11 918 
 
 Marclyv. Shults 11 918 
 
 Marcy v. Stone 1 201 
 
 Marine Ins, Co. v. Hodson .ii 108, 798 
 
 T. Young 11 1001 
 
 MarlDer v. Saunders il 553 
 
 Markham V. Gonaston ii 483 
 
 V. Middleton li 120 
 
 Markley v. Amos ii 406 
 
 Marks v. Barker 1 322 
 
 V, Harriot ii 23, 404 
 
 v. Pell 1681,11649 
 
 V. RobiDscn ii 694 
 
 Marley V. Rogers i 319 
 
 Marquand v. Webb 11 1001 
 
 Marriott v. Hampton ii 29, 31, 116 
 
 V. Shaw il 150 
 
 Marsack v. Reeves i 694 
 
 Marsden v. Goble i 650 
 
 V. Stansfleld 15,43,812 
 
 Marsh v. Bulteel ii 406 
 
 V. Bnttesly 11 406 
 
 V. Gold , i 430 
 
 V. Hague 1 684 
 
 V. Hyde 11 680 
 
 V. Jones : 1390, 400 
 
 V. Lawrence 1 604 
 
 V. Pier 11 37, 47, 115, 124, 126 
 
 , v.Eulifson 111006 
 
 V. Smith 1 49 
 
 Marshall v. Craig 1 696 
 
 V. Currie ii 783 
 
 v. Haney 1578, li 553 
 
 V. Lester 11 148 
 
 V. Lewis i 005 
 
 V, Riley ii 937 
 
 V. Sheridan i 411 
 
 V. Union Ins. Co ii 399 
 
 Marston v. Downes 1 131. ii 898 
 
 Martendale V. EoUet 11488, 516 
 
 Martens v. Adcock ii 134 
 
 Martin V. Ballon il 639 
 
 V. Bigelow 1 655 
 
 V. Commonwealth ii 606 
 
 V. Curtis i 325 
 
 V. Dwelly 1 823 
 
 V.England il 152 
 
 V. Gunby li 282, 297 
 
 V. Hawks i 481 
 
 V, Hcathcote 1 700 
 
 V.Hitchcock 11403 
 
 V. Hafltoth 11 403 
 
 V. Eanouse i 865 
 
 V. Marshall 11 140, 146, 152 
 
 V. Marshall & Key ii 146 
 
 V. Martin's Heirs i 589, ii 63. 126 
 
 V. Maverick - 1 740 
 
 V. Mayo ii 674 
 
 V. Moss ii 145 
 
 V. Mott ii 161 
 
 V. NichoUs ii 184 
 
 V. Reeves i 198, 820, 327 
 
 V. Rodger , li 366 
 
 V. Root i 407, 337, 440, 499 
 
 V. Scarls li 277 
 
 V. Simpson 1 196 
 
 V. Taylor ii 144, 613 
 
 V. Thornton ii 23 
 
 V.Walton 11276 
 
 V. WillJimB 11402 
 
 Martz V. Hartley ii 301 
 
 Marvin v. Keeler i 741, ii 975 
 
 V. Richmond 1 431 
 
 V. Stone ii 753 
 
 Mary Lace's Case 11 795 
 
 Maryland v. Ridgley 1 191. 291 
 
 V. Wayman 11 352, 564 
 
 • Ins. Co. v. Wood il 176 
 
 and Phoenix Ins. Co. v. Bathurst. . ^i 178 
 Mason v. CUambers 1697, 698 
 
TABLE 01' OASES CITED. 
 
 CXXUl 
 
 Mason v. Hill i 610, 654 
 
 V. Tallman i B53 
 
 V. Wash ii 429 
 
 Mason's Devisees v. Peter's Adm'rs ii 14, 64 
 
 Massey v. Bagle Bank i 466 
 
 V. Learning , ii 705 
 
 Mastcn v. Hasten ii 9S, !)!) 
 
 Master's Lessee v. Shute ii 301 
 
 Masterman v. Jndson i 871 
 
 Masters v. Masters ii 733 
 
 V. Varner i 811 
 
 Mather v. Clark i 522 
 
 V. Crawford i 463 
 
 V. Goddard i BSD, ii 512 
 
 V.Hood i405, ii 143, 161 
 
 V. Phelps i 508, 609 
 
 V. Trinity Church . / i 660 
 
 Mathews v. Dragand i 092 
 
 V. Haigh ■. ; ii 378 
 
 V. Mathews ii 704 
 
 V. Eice i 60S 
 
 Matilda v. Crenshaw ii 112 
 
 Matson v. Trower ii 414 
 
 Matter of Kip ii 847 
 
 Matthews v. Aikin 1 732 
 
 Matthewson v. Moore ii 309 
 
 Mattison V. Banons i 693 
 
 Mattock V, While ■. . .ii 456 
 
 Mattocks V. Owen 1376, ii 073, 931 
 
 Matton V. Nesbit i 749 
 
 Mattoxv. Helm ii 112 
 
 Maugham v. Hubbard ii 504, 918, 923 
 
 M'Auley v. Earnhart ". .ii 863 
 
 Maupin v. Compton ii 8 
 
 Mauran v. Lamb i 30, 4S3, ii 938, 939 
 
 Mauri v. HefFernan ii 510, 532, 595 
 
 Maury v. Cooper i 604 
 
 Mans' Lessee v. Montgomery i 1S7, ii 1009 
 
 Maxwell v. Carlisle ii 588 
 
 v. Chapman ii 258 
 
 V. Hardy ii 975 
 
 V. Harrison i 201, 3S2 
 
 V. Light -. ii 683, 688 
 
 V. Martin i 811 
 
 V. Montacute ii 049 
 
 V. Montague ii 79 
 
 V.Ward i 698 
 
 Ex parte i 701 
 
 May v. Babcock 1470, ii Ii' 
 
 V. Gilbert i (m 
 
 V. Harding ; il 717 
 
 v. Hill ii 554 
 
 V. Jones.. ., i 197 
 
 V. May ' ii 515 
 
 Maybankv. Brooks ii 763 
 
 Maybee v. Avery .ii 0, 10, 48 
 
 v.Flsk..- i S27 
 
 v. -Sniffen i 449, ii 311 
 
 Maybin V. Virgin ii 166 
 
 .Mayelston v. ralmerston i 868 
 
 Mayer v. Foulkrod ii 126 
 
 Mayfleldv. Comeau ii 106 
 
 V. Seawell ii 700 
 
 Mayhewv. Thatcher ii 136,187, 19-3, 198, 427 
 
 Maynard V. Maynard ii 669, 661, 662 
 
 V. Thompson i 405, ii 392, 395 
 
 Mayo V. Gray ii 876 
 
 Mayo's Heirs v. Chiles. .- ii 114 
 
 Mayor V. Butler i 166 
 
 V. Humphreys : i 826 
 
 &c.v.Cunliff 1780 
 
 V. Franklin i 2\;T 
 
 V. Knowler ii 143 
 
 V. Mabie i 648 
 
 V. Russell ii 706 
 
 V.Wright i 43 
 
 of N. T, V. Exchange Fire Ins. Co., i 188 
 
 V. Pentz i 785 
 
 Ma3n'ant V. Guignard i S3 
 
 Maysville v. Shutz i 43 
 
 Maze V. Miller • i 476 
 
 M'Bridev.Hagan ii403, 407 
 
 V. Thompson ■. i 201 
 
 M'Bumey v. Cutler i 670 
 
 M'Bride's Ex' x v. Watts i 373, 377, 384, 4.37 
 
 M'Butt V. Hoge ii 273 
 
 M'Call V. Boalwright ii 301 
 
 V. Gillespie ii 040 
 
 V. Sybert..... 11301 
 
 M'Cally's Lessee v- Franklin ii 534 
 
 M'Candlesa v. Eock ii 319 
 
 M'Cann v. Beach ii 850 
 
 M'Cann's Case 11 979 
 
 M'Cants v. Bee -.1 693, 693 
 
 M'Carroll v. Weaks 11 158, 474 
 
 M'Carthyv. Marsh ' 1140,156 
 
 M'Cartie v. Carrol i 684 
 
 M'Carty v. Carmell i 641 
 
 V. DeCaix U 179 
 
 v.Marsh i581,ii40, 339 
 
 V. Patten's Bx'rs ii 860, 868 
 
 V. Sherman ii 393, 443 
 
 V. State 1 113 
 
 M'Caugheyv. Smith i 853 
 
 M'Caulay v. Thorpe ii 865, 866 
 
 M'Cay V. Hugus ii 753 
 
 M'Clay's Lessee v. Work 1 440 
 
 M'Clean V. Hertog 11525, 539 
 
 M'Clelland v. Quarles ii 676 
 
 M'Clemens v. Graham 11 301 
 
 M'Clenachan V. Scott i 32 
 
 et al. V. M'Carty i 186, 11 198 
 
 M'Clenahan v. Chambers 11 112 
 
 M'Cluny v. Lockhart 1 603 
 
 M'Clung V, Eoss i 822, ii 389 
 
 M'Clure v. Bennett ii 691 
 
 V.Hill....; 1650, 660, 661 
 
 M'Combs V. Dunbar ii 80 
 
 V. Wright i 641, 642 
 
 M'Oonhay V. The Center, &c. Turnp. Co ii 533, 
 
 654, 560 
 M'Connell V. Bowdry'sHeirs..i 178, 455, 667, ii 67, 
 
 370, 471 
 
 V. Brown ii 460, 469, 470, 490, 513, 583 
 
 588, 662 
 
 V. M'Coy 1 627 
 
 V. Pike 1 100 
 
 V. Smith ii 209, 211 
 
 McCoon V. Smith i 522 
 
 M'Corkle v. Binns ii 502, 503. 614 
 
 V State ii 112 
 
 M'Cormick v. Bamum 1 315, 511, 512 
 
 V. SisBon i 825 
 
 V. MulvihlU ii 511 
 
 V. Ganett ii 192 
 
 V. Gibson 1 702 
 
 V. Miller ii 363 
 
 V. M'Murtrie ii 301 
 
 V. Smith . ; i 483 
 
 V. SuUivant ii 86. 89, 105 
 
 M'Coy V. Curtice 1218, 593 
 
 v. Hyde .-ii 148 
 
 M'Coy's Lessee v. Galloway i 326 
 
 McCotter v. Hooker J 215, ii 847 
 
 M'Orain's Bx'rs -v. Clark .1 483 
 
 M'Crea v. Purmont ii 656, 658 
 
 M'Creary v. McCreary ii 671, 684 
 
 M'Credy v. Schuylkill Nav. Co 11 517, 332 
 
 M'Creedy v. Freedly 1 497 
 
 M'CuUoch V. Girard ii 669, 670, 693 
 
 v.- State of Maryland ii 278 
 
 M'Cullock y. McKee 1 515 
 
 V. Myres ii 583, 588 
 
 M'Cullough V. Montgomery i 520, 684 
 
 V. Young 1178, 88 
 
 M'CuUum V. Cox 1 482 
 
 V. Gourlay .11 684, 685 
 
 McCnlly v. Burr i 177, 192 
 
 McCurdy V. Breathitt .ii 700 
 
 M'Curtie v. Stevens ii 693 
 
 M'Cutchen v. Keith 1 483 
 
 M'Daniel'B Will i 32 
 
 M'Dermott v. U. S. Ins. Co 11 404, 646, 749 
 
 M'JDiarmid v. M'Diarmid i 693 
 
 M'Dlll V. M'Dlll 11465,457,587 
 
 M'Donald v. Bdgerton i 633 
 
 V. M*Call i 315, 663 
 
 V. Christie 1 785 
 
 V. Christie ii 119, 131 
 
 V. Fisher 11 1003 
 
 V. Hobby 11 316 
 
 V. Eainor ii 33 
 
 M'Donald's Adm'rs v. Pickett ii 134 
 
 M'Dougal V. Fleming ii 1001 
 
 M'Dongal V. Pnrrier i 665 
 
 M'Dowall V. Beckley ii 666 
 
 V. Halfcenny 1684, ii 705 
 
 M'Dowel r. Charles i 703 
 
 M'Uowellv.Hall ..;..;...:...,; u 740 
 
 T. Lemaitra i 443 
 
 v.M'CuUongh 1677,682 
 
 M'Dowell's Case it 942 
 
CIXIT 
 
 TABIE OP CASES CITED. 
 
 M'Ewenv. Gibbs 1 33 
 
 Mead v. Boston li 48 
 
 V. Golyer 11674 
 
 V. Lansing 11 699 
 
 T. Steger ii 656, 657, 666, 669, 686, 690 
 
 Meade v. McDowell 1 308, 601, 60? 
 
 E.M.v.E.E.K 11844 
 
 Meads t. Lansing 11 646, 698, 69§ 
 
 Meagoe V. Simmons 11904, 923 
 
 Mealor v. Kimble 1 692 
 
 Means v. Brickell 11 672, 673, 687 
 
 V. Osgood ii 377 
 
 Mechanics' Bank v. Bank of Columbia- 11 691, 733 
 
 Mechanics' BankBrooklyn v. Townsend 1 463 
 
 V. Hazzard i 475 
 
 V. W. T. & N. H. E. E. Co. . .1 464 
 Mechanics' Bank Asso.t. Spring Valley S. & L. Co. 
 
 i 598 
 
 Mechanics' & Farm. Bank t. Gibson 11 273 
 
 V. Smith... 1447, 461, 609, 
 616, li 904 
 
 Mede V. Earl of Bandon 1 679 
 
 Medbury v. N. T. & Brie E. E. Co i 616 
 
 MedUcott V. O'Donfel 1 685, 687, 690, 691, 694 
 
 Meek's Heirs V. Ealy's Heirs 1 685 
 
 Meeker v. Jackson 1 32, 11 518 
 
 V. VanEensselaer 11 166, 390 
 
 Meeug v. Thellason '.11 186, 194, 199 
 
 Meghan V. Mills..'. i 481 
 
 Mehelm v. Barnet ii 668 
 
 Meigs v.'Dimock ...'. _ i 685 
 
 Melaqcon's Heirs v. Duhamel 11 130, 166 
 
 Mejchart T. Halaey ii 33 
 
 Meleu V. Andrews 1 437, 438, 440 
 
 Meller v. Lees ■ 1 681 
 
 . Mellor V. Baddely li 30,65, 134 
 
 Melville's (Ld.) Case ii 938 
 
 Melvin V. 'Whiting 1662, 11 44 
 
 M'Blwee v. Sutton 11 951, 975 
 
 Mems V. Stnrdevant, et ux 1201 
 
 Mendenhall v. Smith 11 405 
 
 Mehdura v. Commonwealth i 396, 736 
 
 Menendez v. Larlonda''8 Syndics 1 323 
 
 Mpnzles v. Breadalbane i 663 
 
 Mercer V. Blair ii 649 
 
 . V- Sayre 1804,11 860 
 
 T. 'Whall 1820 
 
 T- Wise ....i 468 
 
 Merchants' Bank v. Spicer 1 903 
 
 M. Ins. Co. V. Wilson.- ii 789 
 
 Mer. Safety Ins. Co. v. Hone 11 787 
 
 Mercien r. People ii 144 
 
 Meredith r. Hinsdale ii ise 467 
 
 V. Hodges i 459 
 
 V. Kennedy i 508, 611, 512 
 
 V. Shewell li 368, 371 
 
 Meredith's Leasee v. Macoss' i 615 
 
 Merle v. Moore i 135 
 
 Merriam v. Hartford & N. H. E. E. Co. ! . ! ! ! ! 1 77 
 
 Merrifleld v. Eobblns 11 483 
 
 Merrill v. Berkshire ii 9;,7 
 
 V.Emery 1 609 
 
 V. Ithaca, &c., Eaikoad Co. . .11 288, 503, 577, 
 
 694 
 
 V. Pnnce ii 148 
 
 T.Sawyer 1 403, 405 
 
 Merrills v. Law i 731 ii 883 
 
 Merrltt v. Brinkerhoff 1 655 
 
 v. Cornell .'i 643 
 
 V. Lyon 1 814 
 
 v. Parker 1 664 
 
 V. Eead ii 103 
 
 v. Seaman 1785 
 
 Mersereaii v Pearsall 11 7 10 
 
 Mersey, &c., Nav. Co. v. Douglass i 857 
 
 Meaerole v. Archer 1 4oS 
 
 Messerve v. Hicks 11 390 
 
 Messlnger v. Hagenbuch 11 578 
 
 v. Kinter ii 20, 80, 83 
 
 Motcalf V. Harvey ii 334 
 
 V. Van Benthuysen 1 216, 334 
 
 Metcalfe et al. v. Conner 1 493 
 
 Methodiet Church of Cincinnati v. 'Wood.. 135, 43, 
 
 ii 70 
 
 Eplso. Church v. Jaques et al. i 419, ii 663, 
 
 701, 937 
 
 Bplsc. IT. Church v. Pickett. .1 603, li 273 
 
 Metropolitan Bank v. Van Dyck li 667 
 
 Metzgar v. Metzgar i 483 
 
 Metzner v. Bolton 1 886 
 
 Meizer, Matter of 11 137 
 
 Meyer v. Sefton 11 513 
 
 Mezzara's Case i 193 
 
 M'Eadden v. Geddls 11 83 
 
 V. Gill 11139 
 
 T. Hayley 1 854 
 
 V. Kingsbury ii 297, 513, 646 
 
 T. Maxwell i 120 
 
 M'Ball's Case. . .' 11 813 
 
 M'Barland v. Commissioners, &c i 43 
 
 v. Kerr i 662 
 
 V. Shaw 1 286 
 
 M'Barlane v. Griffith 1 483 
 
 V. Moore 11 666, 672 
 
 M'Eerran v. Powers 1 124, 11 506 
 
 V.Taylor li 698 
 
 M'Gauntenv. 'Wllber 1 696 
 
 M'Geev Denipban ii 611 
 
 M'Gennis v. Allison 11476, 480, 496 
 
 M'Glffert v. M'Giffert 11 96 
 
 M'Gowen v. Hay il 366 
 
 V. Leavenworth i 71 
 
 M'Grath ads. Isaacs 11 519 
 
 M'Gregor v. East India Co 1 689 
 
 V. Hall 11 588 
 
 M'Guinty v. Herrick ii 163, 388 
 
 M'Guire V. Kouns 11475 
 
 V. M'Gowen 11 701 
 
 M'Gulre's Case 11 604 
 
 Miami Exportation Co. v. U. S. Bank II 649 
 
 Michaels v. Shaw 11 398 
 
 Mlcham V. 'Wyatt ii 4 
 
 Mlchll V. Mullen's Lessee 11 473, 476 
 
 Mickels v. Hasklna 11 373 
 
 Mldberry v. Collins il 1002, 
 
 Mlddleborougb v. Eochester 11 75 
 
 Middlebrobk v. Merchants' Bank li 87 
 
 Mlddlebury College v. Cheney il 688 
 
 Middlesex Bank v. Butman 1 464 
 
 Middleton v. Frost 140, 42 
 
 V. Heyward li 730, 732 
 
 V. Manucaptors of Sylvester 11 379 
 
 V. Mass 11 476 
 
 V. Melton 1307, 351 
 
 V. Perry ii 783 
 
 V. Price 11 366 
 
 v.Shelly 1 688 
 
 Bankv. Jerome 1 119 
 
 Middletown Savings Bank v. Bates 1 35, 44 
 
 Mifflin V. Bingham 1 101, 384, ii 210, 874 
 
 Milan (Overseers of) v. Dutchess.- 11 108 
 
 Mllbankv. Dennlstoun i 620 
 
 Mllesv- Dawson .' 11 898 
 
 v. Ervln 1 692 
 
 V- O'Hara 1 390, 395, 396, 397, 398, 399 
 
 Miles' Case 1706,711 
 
 Milfax V. Baker 1 6, 9 
 
 Milford v. Belllngbam — , 1 189 
 
 gnhab.) v. 'Worcester (Inhab.) 11 263, 279 
 bristle ■ 11 632 
 
 MlUarv. Thompson : ».l 604 
 
 Millerv. Bagwell 11575,657, 6.58 
 
 V. Bear 1 698 
 
 V. Brinkerhoff U 104 
 
 V. Covert li 85 
 
 v.Decker 1 647 
 
 T- Drake 1 696 
 
 V. Gable il 711 
 
 V. Hackley 11 649 
 
 V. Henshaw 11586, 68S 
 
 V. Holt ■ 11 583,587, 688 
 
 V. Hower 11 700 
 
 V. Johnson 1 803 
 
 V. Maither ii 323 
 
 V. Mauice *. 11 47 
 
 V. Mariner's Church 1 103 
 
 V. Mather u 333 
 
 V. M'Clenahan i 33 
 
 V. Miller 1 448, 497, 837, 11 100, lOT 
 
 V. People ii 143 
 
 V. Eace l 885 
 
 v.|The Eesolution 1 577, 640, 812 
 
 V. Russell 1 395 
 
 T. South Carolina Ins. Co 1 510 
 
 V. Starks 14, SO 
 
 v-Travers 11728,723,756, 774 
 
 V. Webb 11 518 
 
 v. Weeks 1 148 
 
 V. Williamson 1 88 
 
 V. Yablo 11 70 
 
 Miner's Estate 11 601, 504, 663 
 
 Heirs T, M'Intyre. i 687, 690, 691 
 
TABLE OF CASES CITED. 
 
 CXXV 
 
 Millick V. Peterson 1471,512 
 
 Milligan & Welohman's Case i 543, 546, 653, 556 
 
 Miffigau's Lessee T, Dickson ....ii585, 686, 688, 873 
 
 Milling V. Crankfleia.-. : ii 645 
 
 Millinsou v. Howell , ii 687 
 
 Millman v. Tucker 11 946, 948 
 
 Mills V. Brownell 1 ' . . i 378 
 
 V. Comstock 1 608 
 
 V. Duryee 11 97, 187, 189, 191, 339, 427 
 
 V. Griswold 1 138 
 
 V. Hall 1 658 
 
 V. Martin 1 822,1120,105, 145, 151 
 
 V. Oddy i 131, 133, 196, 11 897 
 
 V.Pierce 1747 
 
 V. St. John 1 378 
 
 V. Twist 11 495, 497 
 
 V. United States Bank ii 728, 738 
 
 V. Wyman 1 477 
 
 Mills' Case 11 942 
 
 Heirs v. Bodley 1 687, 690 
 
 Milne v. Cnramings ii 576 
 
 Milner v. Milner ' ii 638 
 
 Milnor V. Tillotson 1568, 11 560 
 
 Milsom V. Day 11 807 
 
 Milton, V. Ellmore 1 869 
 
 Milward v. Thanet 1 697, 698 
 
 Mima Queen v. Hepburn 1 173, 231, 253 
 
 Mimms v. Sturdevant ; i 412 
 
 Mims T. Mime 1 679, 11 69 
 
 V. Whlddon ii 674 
 
 Miner v. Clark.. ii 526 
 
 Mlnklaer v. Kockfeller 1 604 
 
 Minnis v. Echols ii 210 
 
 Minor v. Erving's Es'r i .378 
 
 V. Tillotson 11 663 
 
 V. Walton 1x18,31, 118 
 
 M'lustry v. Tanner 1 693 
 
 M'lntlre v. Young ii 903 
 
 M'Intire'B Heirs v. Funk's Heirs ii 542, 554, 916 
 
 M'lntoek v. Ward . . : ; 11 586, 688 
 
 M'Intyre v. Clapp 1 737, ii 1004 
 
 V. Oommonwealtli 1 541 
 
 V. Oliver 1 491 
 
 V. Patton 1 467 
 
 V. People 1 641 
 
 Mitcliell V. AUen 11 114 
 
 V. Bush 11 406, 409 
 
 V. Clarke 1 378 
 
 V. Cook i 791, ii 33 
 
 V. Dall 1 610 
 
 V, De Graffenreid 1 747 
 
 v.Ehle 1 168 
 
 V. Georgia Banking Co 11 633 
 
 V. Hawley • ii 166 
 
 V. Hinman 11 876, 963, 976, 978 
 
 T. Johnson 11 490, 607 
 
 V. Kingman ii 687 
 
 V. Upe : ii 875 
 
 V. Maupin 1 178, 473, 676, ii 574 
 
 T. Mitchell ii 517, 563, 583, 688, 594 
 
 V. Mitchell's Lessee 11 640 
 
 V. Osgood ii 188 
 
 V. Owings 1 668 
 
 V. Preston 11 674, 683 
 
 V. Eoulstone '.,1404, 497 
 
 V. Stayeley ii 403 
 
 V. Walker 1 666, 667, 662 
 
 V. Wright 1 805 
 
 Mitchum v. State 1 184, 200, 287 
 
 M'lver's Lessee v. Walker 11 739, 783 
 
 Mix V. Brisban 11 869 
 
 Mixer v. Reed 11 714 
 
 M.'Kane'8 Ex'r v. Bonner 1 326, 327, ii 908 
 
 McKavlin V. Bresslin.. .; 1 448 
 
 MoKavlin v. Bresslin 1 447 
 
 M'Kay v. Mar. Ins. Co ii 861, 864 
 
 V. Treadwell i 617 
 
 M'Keev. Myers's Ex'r 1672, ii 471, 604 
 
 V.Nelson .....1736, 786 
 
 V. Eeiflf .11 612 
 
 M'Keen v. Delancy's Lessee 11 583, 686, 688 
 
 V. Gammon .' 1 432 
 
 M'Kellar V. Bowell ii 6, 8 
 
 M'Kelllp r. M'llhenny 11 520 
 
 M'Kelrye v. Gilleland 11 301 
 
 M'Kenna's Case 1 535 
 
 M'Kennati v. Henderson ii 666 
 
 M'Kenney V. Dingley 1761, 773 
 
 M'Kensey v. Gaylord ii 699 
 
 .M'Kenzie v. Hamsay . ii 137 I 
 
 M'Keon v. Lane ii 3?^ ' 
 
 M'Kerras v. Gardner 11 118 
 
 M'Kewn ads. Barksdale 1 378 
 
 M'Kle V. Eeynolds . . ■. ii 881 
 
 M'Kimv. Odom: 11 426 
 
 M'Kln V. Soniers 11 981 
 
 M'Kineson v. Bliss ii 536 
 
 M'Klnley v. Bob i 864 
 
 M'Klnster v. Babcock ii 647 
 
 M'Klnney v. Crawford 11 19, 28, 116 
 
 V. Leacock 11 210, 512 
 
 V. Newcomb ii 405 
 
 V. Ehoades 11 662 
 
 M'Klnnonv. Bliss.. ii 300, 575 
 
 ■V. Bliss i 242, 473, ii 299 
 
 M'Kinstry v. PearsaU 1 476, 477, ii 656 
 
 M'Knight V. Dunlap ii 1012 
 
 • V. Lewis i 349 364 
 
 V. Wheeler 1 119 
 
 M'Kyi-ing v. Bull 1 748 
 
 M'Laughlin v. Hill 11 110, 121, 124 
 
 M'Lanrin v. Talbot ii 617, 533 
 
 M'Lean v. Hugaren ii 117, 388, 396 
 
 V. Jagger ; 1 513 
 
 T. State. 1 287, 297, 298, 779, ii 887 
 
 M'Lellan v. Cox i' 20?, 492, 500 
 
 V. Longfellow ' 1 144 
 
 T. Eichardson i 133 
 
 M'Leod V. Johnston 1 740 
 
 M'Mahan v. M'Grady i 587, ii 468, 633 
 
 M'Mahon v. Harrison .1 603, 640 
 
 V. N. T. & Erie E. E. Oo ;.i 517 
 
 V. Spanger .' .11 251, 698, 699, 700, 988 
 
 M'Managil v. Ross 1 4 
 
 M'Mechen v. M'Laughlin's Ex'rs 11 867 
 
 M'Meen V. Owen - 11 667 
 
 M'Mlcken V. Beauchamp 1 607 
 
 V. Brown.. 1 735 
 
 V. Fair 1 104 
 
 r. Mlllandon 11108 
 
 M'Millan v. M'Mlllan 1 689 
 
 M'Mullen v. Brown 11 616, 661, 569, 584, 588 
 
 V. Wenner .1 457 
 
 M'Murtry T. Campbell 1 746. 
 
 V. Frank ii 460, 471' 
 
 M'Nair v. Commonwealth 11 602, 615 
 
 V. Gilbert 1806, li 565 
 
 V. Eagland 1 689 
 
 M'Namara v. Glbbs 1 172 
 
 M'Namee v. Tenny 1 502 
 
 M'Naughton's Case 1 604, 785 
 
 M'Neil V. Bright 11 28 
 
 V. Magee i 698, 11 68 
 
 V. Phfllp 1 466 
 
 etal. V. Coleman '. i 810 
 
 M'NelU V. Blam 1349,360 
 
 M*!Ni6l V. M'CUntock 1 32, 11 518 
 
 M'Niel's Case 11 821 
 
 M'NMF's Case 1 106, 712, 740, 11 942 
 
 Mbbley V. Hemmet ii 956 
 
 Moehring v. Mitchell 1 642 
 
 Moers v. Martens i 494 
 
 Moffat V. Witherspoon i 525 
 
 Moffatt V. Sacketfj 1 748 
 
 V. Moffatt 11 671 
 
 Mohawk Bank v. Atwater 1 700 
 
 Mollere v. Pennsylvania Ins. Co 11 699 
 
 Mbllnenx v. Molineux ii 741 
 
 Monahan V. Colgln 11 700 
 
 Moncure V. Hanson i 465 
 
 Monell V. Colden ii 672 
 
 V. Lawrence 1 476 
 
 Monk V. Butler i 605 
 
 Monroe v. Culver 1 414 
 
 V. Douglass 1 624, 11 192, 328, 433, 429 
 
 V. M'Micken 11 108 
 
 Montague V. Smith 11 404 
 
 Montefiorl v. Montefiori 11 685 
 
 Montford v. Hunt 11 61 
 
 Montgomery V. Clarke ii 79 
 
 V. Dorian 11 588 
 
 V. Montgomery 1 631, ii 91 
 
 County Bank v. Marsh 1 67 
 
 Montgomery's Lessee v. Dickey i 233, ii 211 
 
 V. Snodgrass 1 391 
 
 Montressor v. Rice j 1 104 
 
 Monnmoi v. Sogers 1665, 11 296 
 
 Moody v. Baker .1 177 
 
 • V. BomeU 11 618 
 
 V. Fulmer 1 81 
 
 V. Gobde i 87 
 
 T. Eowell ii 604, 608, 618, 892 
 
OXXVl 
 
 TABLE OF CASES CITED. 
 
 Moody V. ThnrBton ii 29, 183 
 
 T. Towle i 483 
 
 Moody's Lessee v. Tan Dj'ke i .692, ii 660 
 
 Mooers v. White i 483, 502, ii 79 
 
 Moona V. BernaleB ii 76 
 
 Moor V. Amos ii 129 
 
 V. Foley ii 803 
 
 v.Eisdell ii 337 
 
 Moore v. Andrews i 386 
 
 V. Bickham-'a Lessee ii 483. B83 
 
 v.iBIake i 693 
 
 T.lpiirrowB i 897 
 
 T. Cable i 679 
 
 V. Collins...: ii B88 
 
 V. Oommonwealtli ii 541, 606 
 
 V. Edwards' Ex'rs ii 698 
 
 V. Farrow ii 585, 588 
 
 V. Hitchcock 1 442, 463 
 
 V. Holland..... ii 913 
 
 V. Houston ii 149, 512 
 
 V. Jackson ex d. Erwin i 670, ii 639 
 
 V. Janner's Adm'r ii 76 
 
 V. Kay ii 682 
 
 V. Livingston i 570 
 
 V. Miller ii 734 
 
 V. Meachiim 120), 357 
 
 V. Rawson .: 1 649,650, 6B1 
 
 y. Sheredine ii 873 
 
 V. Smith 1 438, ii 52, 448 
 
 V. Sparkman , ii 186, 198 
 
 V. Tanner's Adm'r . .' ii 76, 83, 86, 89 
 
 V. Terrell i 132 
 
 V. Traoey i 127 
 
 V. *Viele ii 904 
 
 V. Watts ii 27 
 
 v. Westervelt i 785 
 
 Moore's Lessee v. Vance ii 588 
 
 Moorehousev. Matthews i778, 785 
 
 Moran v. Dawes 1 1006 
 
 Moravia v. Sloper i 822, ii 141, 152 
 
 More V. White '. . . , 1 483, 683 
 
 Moredoll v. Marshall of K. B ii 825 
 
 Moreheadv. State i 537 
 
 Moren v. Killibrew ii ISS, 195, 197, . 198 
 
 Morewood v. Wood i 244 
 
 Morey v. Farmers' Loan & Trust Co i 679 
 
 Morford V, Mastin i 696 
 
 Morgan V. Bealle ii 583, 588 
 
 V, Bennett ii 890 
 
 V. Bliss ii 33 
 
 V. Boone i 745, 747 
 
 V. Curtis 1059 
 
 V. Dyejf i 822 
 
 V. Edwajds i 838 
 
 V. Frees ii 953,962, 970 
 
 V. Livingston i 124 
 
 V. Morgan ii 474 
 
 V. Plumb ii 109 
 
 V. State ii 273 
 
 Morgan's Heirs v. Fatten ii 61 
 
 Case 117, ii 611 
 
 Morisey v. Bunting .^ i 412 
 
 Moritz v. Brongh i 317 
 
 Maroney V. O'Dea i 691 
 
 Morrell v. Bickey ' 1 699 
 
 V. Cook ii 644 
 
 V. Dickey i 699 
 
 V. Dixfleld i 202 
 
 Morris v. Briggs 1 .385 
 
 V. Bulkley ii 1003 
 
 v. Corson i 747 
 
 V. Creel ii 830 
 
 V. Dabigny. . . , i 49 
 
 V. Danlelaon i 814 
 
 V.Davis., i 630 
 
 V, Dnane . . .' i 180 
 
 V. Bdwardfl ; ii 300, mi, 098 
 
 V. Flora ...".. i 83 
 
 V. Fort i 868 
 
 v; Hurst i 409 
 
 V. Lessee of Harmer's Heirs. . . i 170, ii 300, 
 
 801 
 
 V. Miller ii 279 
 
 V. MorrisB , 1 462, ii 698 
 
 V. Patchin : ii 425 
 
 V. Pngh. . ., 11878 
 
 V. Wadsworth ii 690 
 
 V. Whitcher ii fiflo, 693 
 
 Morris' Lessee v, Vanderen i 179, SIB, 411, 667, 
 
 11 301, 354, 574, 576, 587 
 Morrison ads. Barksdalo ii 800 
 
 Morrison v. Daane i 189 
 
 V. Leonard ii 883 
 
 V. M'MlUian 1 605 
 
 MorrlBon's Adm'r V. Beckwlth i467, 483 
 
 Morse V. Coyle ii 212 
 
 V. Crawford j i 785 
 
 V. Farrow ' ii 583 
 
 V. James et al 1822,11144,152 
 
 V. Royal i 692, 693 
 
 V. Shattnck i 477, ii 656 
 
 Morton v. Beall's Adm'r ii 873. 825 
 
 Morton v. Chandler ii 687 
 
 v. Le Grand , ii 674 
 
 V. Morton i 482 
 
 V. Rogers ii 674 
 
 Morton's Adm'r V. Smith 1175, 350 
 
 Moscati V. Lawson i 12'i' 
 
 Mo^eley v. Armstrong ii 72, 73 
 
 V. Davies 1223 
 
 V. Garrett 1 685 
 
 V. Hanford ii 675 
 
 Moser v. Libenguth ii 645, 650, 699, 700 
 
 Moses V. M'Farlan ii 183 
 
 Mosley v. Massey ii 765 
 
 Moss V. Livingston ii 692 
 
 V. Jerome i 466 
 
 Mossey v. Mead ii 696 
 
 Mostyn v. Fabrigas ii 4.33 
 
 Moth V. Atwood i 691 
 
 Mothland v. Wireman ii 86, 87 
 
 Mott V. Comstock 1 518 
 
 V. Dorrell i 126, 129, ii 674 
 
 V. Doughty ii 505 
 
 V. Hicks i 101 
 
 V. Hudson River R. R. Co i 783 
 
 V. Kip i 543, 521 
 
 V. Petrle i 853 
 
 Motz V. Bolard 11 301 
 
 Moulton V. Moulton i 127 
 
 Mount V. Bogert i 428 
 
 V. Larkins : 11 813 
 
 Mowatt V. Howland ii 276 
 
 V. Lounsborough ii 693 
 
 Mowry v. Schroeder ii 535, 553 
 
 Moyes v. Brumeaux i 448, ii 975 
 
 Movie V. Roberts i 677 
 
 M'Peake v. Hutchinson i 319, 407 
 
 M'Pherson v. CunlMF ii 19. 62, 65, 74, 79, 84 
 
 V. Eathbone . . .1 200, 388, ii 460, 489, 493, 
 499, 501 
 
 M'Queen v. Fargiihar 1 610 
 
 M'Quig V. M'Quig ii 97 
 
 M'Eae v. Ins. Bank Columbus i 432 
 
 V. Mattoon ii 188, 201, 483 
 
 M'Reynolds v. M'Cord ii 55^ 
 
 M'Tavish v. Denning i 143, 159 
 
 M'Teer's Adm'r V. Snephard 11 686 
 
 Mndd V. Beauchamp ii 424 
 
 Muckleroy V. Bethany 11 456 
 
 Mnggah V. Greig ii 610 
 
 Mulcahy v. Kennedy i 687 
 
 Mulder V. Cravat .- ii 405 
 
 Mulhado v. Brooklyn City E. E i 811, 785 
 
 Mulheran's Ex'rs V. GiUespie ii 705 
 
 Mulliner v. Wilkes i 743 
 
 Mumford v, Ai'mstrong ii 872 
 
 V. Bowne ii613, 545 
 
 V. Church 11825, 848 
 
 V. Hallett ii731, 798 
 
 V. Hawkins i 598 
 
 V. M'Pherann ii 667, 672 
 
 MundeU's Lessee v. Clerkleo 1 671 
 
 Mundell v. Hugh ii 783 
 
 Mundine v. Crenshaw ii 724 
 
 Munford v Overseers ii 4, 8 
 
 Munn V. Godbold 11 508 
 
 MunnB V. Dupont i 179, 865, ii 661 
 
 V. Nemours i 825 
 
 Mnnro v. Allaire 1 692, 693, ii 34, 403, 404 
 
 V. Chemant i 455 
 
 V. Gardner i 603 
 
 V. Merchant ii 265 
 
 Munroo V. Cooper 1 811 
 
 V. Perkins ' ii 093, 693 
 
 V. Stutts i 2i>2 
 
 Munson V. Hegeman ..i 44 
 
 Muratl V. Luciani ii 61S 
 
 Murcock V. Hunter ii 505, 506 
 
 V. Phillips Academy ii 461 
 
 Murfeyv. Brace i 77s 
 
 Murletta v. Wolfehaven ii 608 
 
TABLE OF CASES CITED. 
 
 CXXVU 
 
 Marie's Case ii 806 
 
 Murphy V. Guion's Ex'rs il 361 
 
 T. Hagennan 11 608 
 
 V. Hubert 1 201, 618 
 
 • V. Kipp 1802, 804 
 
 T. Tngg 11 649, 682 
 
 Murphy's Case 11 111 
 
 Murray v. Bethune 1 183 
 
 V. Bossier 1 745 
 
 V. Columbia Ins. Co 11 724 
 
 v.Coster 1407,429,689,11 71 
 
 V. Genl. M. Ins. Co 1 71 
 
 T. Gregory 1 482 
 
 T.Hatch 11799 
 
 V. Jnflah 111000 
 
 V. Oliver 1 201, 332 
 
 T. Palmer 1 694 
 
 V. Smith 111012 
 
 V. The Ins. Co 11 848 
 
 V. Toland 1 439, 700 
 
 V. Walker 11 647 
 
 Murray's Case 1 635 
 
 Murrell v. Johnson's Adm'r 1 851, 11 27 
 
 v. Smith ; 11 149 
 
 Musev. Donelaon 1 491 
 
 Musgrove v. Gibbs l i 861 
 
 Mutchlnaon v. Allcock 11 611 
 
 Mntloe V. Smith 1 695 
 
 Mutrle V. Harris 1 675 
 
 M'Vicar v. Wolcott 11 108 
 
 M'Willlams V. Long 1 697 
 
 V. Martin 11 645 
 
 T. Smith 1 842 
 
 T.Willis 1 867 
 
 Myerv. Barker 11 566 
 
 T. M'Lean 1 733 
 
 Myers v. Baker 1 462 
 
 V. Brownell i 60S, 658 
 
 V. Davis 11 118 
 
 V. Ellsworth 1 699 
 
 V. Gemmel 1 660 
 
 V. Palmer i 121 
 
 V. Skrine 1683, 684 
 
 V. Toscan il 614 
 
 Mygatt V. Washburn 11 142 
 
 Mylne V. Geatrix 11 406 
 
 Mynn v. Joliffe 1 132, 144 
 
 Myrlck v. Bishop 1 646 
 
 N". 
 
 Naha v. Qarlin i 747 
 
 Nal's Reps. v. Penwiok i 666, il 473 
 
 Nancanon v. Weatherstaee , 11 472 
 
 Nantz V. Bailey 11 586, 588 
 
 V. M'Pheraon il 72 
 
 Nase V. Peck -. ' 1 665 
 
 Nash V. Gllkeson 1 758 
 
 V. Van Swearingen 11 938 
 
 Nashville Bank v. Bennett 11 549 
 
 Naaou v. Dillingham 1 593 
 
 V. Thatcher 1 29, 42 
 
 T.Whitney 11 148 
 
 Nations v. Johnson 11 158 
 
 Navigation Co. v. N. Orleans 11 938 
 
 Naylorv. Moffatt 11 76 
 
 T. Moody 11 86 
 
 v. Semmes 11 369, 938, 939 
 
 T. Wench ii 699 
 
 Neafle'9 Case i 136, 145 
 
 Noal V. M'Comb il 4, 14, 64 
 
 T. Shields ii 405 
 
 Neale v. Isaacs 11 261 
 
 V. The Overseers 11 149 
 
 Neathway V. Ham ii 753 
 
 Neave v. Jenkins i 745 
 
 Neave's Estate, Case of 11 707 
 
 Needhamv. Ide i 785 
 
 Negro John Davis v. Wood i 173, 249 
 
 Nen V. Cheves ii 696 
 
 Neil V. Tillman ii 694 
 
 Neilson v. Columbian Ins. Co ii 976 
 
 V. Mott ii 268 
 
 Neimcewlcz t. Gahn 1 611 
 
 Nelius v. Brickell 11 490, 492 
 
 Nellis v. McCann , i 785 
 
 Nelson T. Blight i 609 
 
 T.Carrington 1695, 697 
 
 T.Dubois 1869 
 
 T.Evans 1148, 1-33 
 
 y. Ivereon 1 188 
 
 v. McGiffert Ii 503 | 
 
 Nelsop T. Oldfleld i 816, 817 
 
 T. State il 887 
 
 T. The United States ii 845 
 
 V. Whittal ii 507 
 
 Nereide(The) il 976 
 
 Netherwood v. Wilkinson ii 830 
 
 Nettles T. Harrison 1175,495, il 900 
 
 Neville V. Robinson ii 82 
 
 V. Wilkinson ii 685 
 
 Nevins V. Dunlop il 700 
 
 Newbold v. Lamb 1 610, 11 466 
 
 Newbnrg v. Bickerstaffe i 690 
 
 Newburgh v. Newburgh ii 705 
 
 (Lady's) Case ii 638, 752 
 
 Newbury v. Bulkeley ii 650 
 
 Newcastle (Duke of J t. Broxtowe 1 220 
 
 T.Cleyton 1 682 
 
 V. Kinderly 1 639 
 
 Newcomb v. Bonham 1 680 
 
 V. Clark ii 669, 691 
 
 V. Drummond 11 352 
 
 V. Griswoia i 24, 11 900, 940 
 
 Newcombe's Lessee v. Smith ii 472 
 
 Newdigate v. Davy ii 20 
 
 NewelTv. Newton ii 187, 198 
 
 v. Sammons i 74 
 
 v. Simpkin ' ii .313 
 
 T. Wright 1 712, .731 
 
 New England Bank v. Lewis ii 33 
 
 Mar. Ins. Comp. v. Chandler,"ii 660, 
 
 686 
 
 V. De Wolf..i 515, 
 
 11 691 
 
 Newhal v. Wadhams ii 953 
 
 Newham v. Raithby i 256, 264 
 
 iNew Haven Bank V. Mitchell ii 917 
 
 New Haven Co. Bank v. Mitchell ii 294 
 
 Newland V. Douglass i 166, ii 24 
 
 V.White 1 699 
 
 Newman v. Bennett i 749 
 
 V. Bradley i 418 
 
 T. Chapman 11 471 
 
 v. Cordell i 608 
 
 V. Jenkins 1641, 11 76 
 
 V. Macken i 467 
 
 T. Newman i 677 
 
 T.Otte i 793 
 
 V. Rogers i 698 
 
 T. Tiernan ii 139 
 
 V. Tiernan i 593 
 
 Newport v. Cooper ii 127, 266 
 
 Newson v. Adams ii 433 
 
 V. IJufFerlow ii 700 
 
 V. Luster , ii 493 
 
 V. Lj'can , ii 63 
 
 V. Pryor's Lessee 11 783 
 
 Neweom's Adm'r v. Douglass i 348 
 
 Newstadt v. Adams 1 811 
 
 Newton v. Ayacough i 699 
 
 T. Bronson ii 680 
 
 V. Harris ; ii 904, 953. 970 
 
 T. Higgins 1377, 378, 11 860 
 
 V. Lucas ii 722 
 
 T. Newell ii 198 
 
 T. Pope.; ., 1 712 
 
 T. Preston ii 702 
 
 T.Verbeke i 804 
 
 New York Annual Conference t. Clarkson ii 638 
 
 Belting and Packing Co. t. Washing- 
 ton Eire Ins. Co li 765 
 
 C. R. E. Co. T. MarTin ii 102 
 
 &ErieR. R. Co. T.Cook i 68 
 
 Exchange Bank t. De Wolf li 295 
 
 Exchange Co. t. De Wolf 1 478 
 
 T. De Wolf li 295 
 
 Firem. Ins. Co.t. Bennett etal.i 608, 811 
 
 V. DeWolf 11173, 691 
 
 T. Sturges i 606 
 
 V. Walden i 4 
 
 Gas Light Co. t. Mech. E. Ins Co.ii 666 
 
 Ice Cq. t. Parker i 439 
 
 Ins. Co. t. Thomas ii 798 
 
 Life Ins. & Trust Co. v. Beebe 1 516 
 
 Life Ins. and T. Co. T. CoTert i 679 
 
 & N. H. R. R. Co, y. Schuyler i 593 
 
 & N. H. E. R. Co. T. Schuyler i 463 
 
 Oil Co. T. Richmond i 463 
 
 NicholT. Ridley il 366, 374, 377 
 
 Nicholas v. Lansdale i 263 
 
 v. Pinner i 759 
 
 Nicholls T. Dovras 1 461 
 
CXXVUl 
 
 TABLE OP CASES CITED. 
 
 KichoUs T. Hodges ii 79 
 
 V.Webb i348,;349, 350 
 
 Nichols v. Alsop' i 461, ii 503 
 
 T. Artman — i 126 
 
 V. Fletclier i 816 
 
 V. Goldsmith i 349, 350, 712, ii 549 
 
 V. Hblgate : ;. 1 104, 135 
 
 V. Hotchkiss 1 136, 331, 333 
 
 Y. Johnson ii 483, 483 
 
 V. -Osborn. , 11 753 
 
 T. Parker i 219 
 
 T. Pinner. i 513, 759 
 
 T. Smith...... 1 693 
 
 , V. Walker : ii 140, 143, 145 
 
 Hicbolson v. Hillia;rd. . . . .' 11 530, 531, 535, 662 
 
 V. May 1 128 
 
 T. Withers . . .' 1 375, 384, 11 920, 923 
 
 V. Wordsworth i 609 
 
 Nicholson's Lessee v. Mifflin i B16 
 
 Nicklih V. Morrow 11 813 
 
 NicoU T. Mumford 1609,11 88 
 
 Niles V. Brackett 1 100 
 
 V. Patch i 196, 201 
 
 V. Totman ii 394 
 
 Nixon V. Mayoh 1 133 
 
 y. Palmer 1 640, ii 251, 826 
 
 ,v. Palmer 1 640 
 
 Noble V. Holmes 11 265 
 
 T. Hojmes 11 366 
 
 V. Martin 1 395 
 
 V. Smith 1 834 
 
 Noel V. Bewley 1 671 
 
 T. Dickey ii 966, 958 
 
 V. Murray i 477 
 
 N: O. Gc. L. Banking Co. v. Dudley 1 851 
 
 Nokea v. Shaw i 857 
 
 Nolan V. Bolton ii 640 
 
 Noland t. State 1 109 
 
 Norberg'B Case 11 873 
 
 Norfleet v. Southall 11 404 
 
 Norman y. Morrell 11 733 
 
 V. Wells i785,il B90, 607 
 
 Norris y. Badger i 740, 806 
 
 V. Beach 11 821, 822 
 
 V. LeNeve 1690, 693 
 
 V. Smith 1 455 
 
 North V. Drayton 1 678, 11 517, 575 
 
 Northana y. Latouche 11 261 
 
 Northampton Bank V. Allen ji 673 
 
 V. Ward 11 131 
 
 y. Whiting 11649 
 
 Northrop v. Jackson 11 512 
 
 y. Speary 11 658, 669 
 
 Northumberland (Duke of) v. Hggremont 1 695 
 
 (Earl of) y. Granby 1 696 
 
 North Eiyer Bank v. Aymar i 450 
 
 Norton v. Cook 11 164 
 
 y. Ladd 1 16 
 
 V. Lewis 1 841 
 
 y. Norton 1464 
 
 V. People 1 647 
 
 y. Pettibone 1 318, 321 
 
 V. Eelly •. . . .1 693 
 
 T.Sanders 1 86 
 
 V. Savage ii 414 
 
 V. Turville 1 686 
 
 V. Warner 1 759 
 
 V. Wells 11 667 
 
 y. Woodruff 11 666 
 
 V. Woods 1 33, 34, 108, 11 119 
 
 Norton's Adm'r v. Smith. .' i 406 
 
 Ndrvell V. Camm 11 1010 
 
 Norwood V. Green 11 532, 563, 688 
 
 Norwoods^s Lessee v. Owings 11 867 
 
 Nott v. Doumlng, ,, 11 376 
 
 Nottbocfc y. Wilks 11 661 
 
 Nouallle v. Grishwood i 671 
 
 Nourse v. Gregory ii 09, 70 
 
 y. M'Cay 1 349 
 
 NovelU y. Eossl ii 185 
 
 Nowlan v. Nelllgan ii 733 
 
 Noyov.Eead 1609 
 
 Noyes v. Butler 1 186 
 
 V. Bvans ; 1 117 
 
 v. Ward. ....... 1 1S6, 301 
 
 Nueva Anna & Licbro (The) 11 177, 106 
 
 Nnldred v. Gilman ii 603 
 
 Numlin y. Westlako i 488 
 
 Nunnery v. Cottbn i 607 
 
 Nurse' V. Bond. .'. ii 70 
 
 Nuasear V. Arnold i 484, 753 
 
 Nye y. Otis i 837 
 
 O. 
 
 Oakes V.Hill ....;. 11254, 398 
 
 Oakley v. Aspinwall 11 65, 198, i 29, 46 
 
 y. Morton ii 633 
 
 Oates V. Jackson . , 11 722 
 
 Oatfleld y. Waring ,1 174 
 
 Obert V. Whlthead 1 f<48 
 
 Obichiniy. Bligh ii 176 
 
 O'Brien V. Davis 1 126 
 
 Ocean Ins. Co. v. Francis . .11 171, 173, 176, 176, 177, 
 
 429 
 
 O'Connelly. Seybert ii 393 
 
 Odam V. Beard 11 608, 669 
 
 O'Dee V. M'Crate -.1 684 
 
 Odlorne V. Bacon 11916 
 
 V. CoUey i 646 
 
 v. Wade 1651 , 
 
 V. Wlnckley 11 903 
 
 Oechs y. Cork 1 793, 794 
 
 Oehler v. Walker i 686 
 
 Offleyv. Offley 1 683 
 
 Offatt'9 Adm'r V. Offutt ii 109 
 
 Ogden y. Miller's Bx'r 1 380 
 
 V. Parsons i 786 
 
 v. Payne 11860,861, 865, 867 
 
 , , v. Peters 1184,186,202 
 
 Ogilvie V. Hull 1648 
 
 Ogley. Peleskie 1 393 
 
 OlHara v. Hall 11 645, 648, 667 
 
 Ohio Ins. Co. v. Bdmondson 11 1008 
 
 Olcott V. Tioga E. E. Co i 516, 693 
 
 : v. Wood ii 410 
 
 Oldham v. Slater ii 763 
 
 V.Woods 1697,11311 
 
 Olding V. Smith.. 1516 
 
 Olds y. Commonwealth ii 865 
 
 Olin V. Chlpman 1 863 
 
 Oliphant y. Taggart 11 507 
 
 Oliver V. Court i 691 
 
 V. Gray 1 408 
 
 y. Gum 1 624 
 
 V. The State 1 289 
 
 Oliver, Lee, & Co's Bank v. Waldrldge ■. 1 851 
 
 Olmstead y. Stewart 11 612 
 
 Olmsted V. Hoyt 11 612 
 
 V. Loomls 1 656 
 
 Omerod v. Hardman i 696 
 
 Omichund v. Barker i 20, 17 
 
 Oneale v. Lodge i 477 
 
 O'Nell V. Morris 1 698 
 
 Onondaga M. Ins. Co. v. Minard 11 997, 1006 
 
 Ontario Bk. v. Hallett ii 373 
 
 Openhelmv. Wolf 1365, ii 273 
 
 Orange V. Spiingfleld i 43 
 
 Co. Bk. V. Wakeman Ii 373 
 
 Orby V. Trigg 1 695 
 
 Orcutt V. Orms ii 115 
 
 Ord V. Heming 1 681 
 
 y. Smith 1680, 681 
 
 Ordinary v. McUlure ii 85 
 
 V. Eoblnson 11 133 
 
 Ordoneax v. Prady ii 1002 
 
 Ordronaux v. Chegaray 11 86 
 
 Orlabarv. Harrison 11 686 
 
 Orme v. Young ii 693 
 
 Ormond v. Hutchinson 1 693 
 
 Ormsby's Ex'ra v. Bakewell 1 84 
 
 Orne V. Townsend 11 286 
 
 Orphan's Court v. Goff ii 19 
 
 Orrv. Hadloy i 392 
 
 Orr'sCase ,...! 713, 11 948 
 
 Orser v. Orscr 11 503 
 
 Osborn v. Bell 1 390, 392, 393 
 
 v. Danvcrs (Inhabitants of) 11 143 
 
 V. Eobblua 1 316 
 
 Osborne V. Bromar i 693 
 
 y. Moss 11 95, CS6 
 
 y. Wise 11 721, 725 
 
 Osgood y. Manhattan Co .... 1 496, 603, 077, 1114 04 
 
 v. Coats 1 196 
 
 Osterhout v. Eoberts 11 3S, 53 
 
 y. Shoemaker i 79, 11 266 
 
 Oswego y. Oswego Canal Co i 229 
 
 OtisT. Sell 1465 
 
 y. Spencer 11 996 
 
 Otsego Co. Bk. v. Warren 11 800, 305 
 
 Ottv. Scbroeppel 11403, 611 
 
 Ottiiiger v. Ottinger i 390, 392, 395 
 
 Ougton v. Sepplngs 1 646 
 
TABLE or CASES CITED. 
 
 CXXIX 
 
 Onterloney T. Powis 1 GS2 
 
 Outlaw V. Henflle ii 616, 912 
 
 Oiitram V. Morewood :....... li-338, ii 10, 38S 
 
 Oiitwaterv Neilson ii 709, 7S7 
 
 V. Nelson ii 755 
 
 Overstreet V. Bate. 1686 
 
 Overaeera of Berlin v. Norwich ii 650, 163 
 
 (jfermantown v. Overaeera of Liv- 
 ingston i 176, 197 
 
 Milan v. Sup'rs of Dntohesa. . ii 106, 103 
 Oranse v. Overseers of Briring- 
 
 fleld ..i 42 
 
 Overton v. Tracy ii 734 
 
 Owen V. Adams ii 578 
 
 V. Bartholomew i 812, ii 756, 803 
 
 ' T. Boeram ii 404, 611 
 
 V. I rudsoa River E. E. Co i 81 1 
 
 v. Jones ii .514 
 
 V. O'Keily ii 913 
 
 V. Simpson ii 376 
 
 V. Toiilkes i 692 
 
 Owens V. Collinson ii 81 
 
 V.Dawson ii 67 
 
 V.Starr 11863,866,867 
 
 Owen's .Case ii 687 
 
 Owings V. Beal ii 9(1, 453 
 
 v. Emery i 23 
 
 V. Qrubli's Adm'r ii 660, 691 
 
 V. Henderson 1.33 373. ii 920 
 
 V. Hall ii 125, 429, 453 
 
 V. Ives ii 474 
 
 V. Law ii B83 
 
 V, Nnrwood ii 476, 483 
 
 V. Owings ..; ii 701, 705 
 
 V. Patterson i 810 
 
 v. Soeed ii 296 
 
 V. Wyant 1 584 
 
 V. et al. V. Low 1 743 
 
 Owlsey V. Woolhofter i 516 
 
 Owners. &o.'v. Mayor. &c. of Albany ii 102. 145 
 
 Oxenden v. Palmer i 43 
 
 Oystead v. Shed i 154, 366 
 
 Pacific Ins. Co. v. Catlett ii ZU 
 
 Pack V. Mayor. iSsc, of New York i 67 
 
 JPackard v. Hill ii 344, 416, 418, 430, 433, 825, 84.1 
 
 ■f? V. Eichardson 1123 
 
 Packer's Lessee v. Gonsalus i 322, ii 980 
 
 Pacy V. Knollia , , ii 761 
 
 ■ Padgett V. Lawrence i 334 
 
 Pagev. Cagwiu 1216, 303, 332. 343 
 
 v.ChHok i 829 
 
 V. Bennison i 254 
 
 V. Leapingwell ii 752' 
 
 V.Lennox li 177 
 
 V. Mann ii 5117 
 
 V. Pa^e 134,11518,662 
 
 V. Parker i 785 
 
 V. 'Woods i S64 
 
 Paige's Case .11 344, 345 
 
 Paige V. Hazzard i 7S5 
 
 Paine v. Benton ii 960 
 
 V. Cntler ii 671 
 
 v. I'rench ii 6,S8 
 
 V. M'Intyro ii 645 
 
 v. Packard ii Ii92 
 
 V.Wilson 1869 
 
 Palethorp v. Famish i 613 
 
 Palfrey's Syndic v. Francois; i 177 
 
 Palister v. Little ii 368, 369 
 
 Palmer v. Avery 1 825 
 
 V. Fogg ii 860 
 
 V. Green i 384, ii 669 
 
 V. Qarnaey 1 673 
 
 V. Hamilton i 693 
 
 T. Hioka 1 6B9- 
 
 V. Jackson. ...; i 631 
 
 V. Manning 1 571 
 
 V. Milligan 1 635 
 
 V. Palmer ii 79 
 
 V. '(fan Doren 1 34 
 
 V. Wetmore 1 650 
 
 v. Whettonhall i 702 
 
 Palmer's Bx'r v. Dubois' Adm'r 1 678 
 
 Palmeraton v. llaxford i 475, 477 
 
 Panooast's Lessee v. Addison i 174, 263 
 
 Panton v. Holland i 842 
 
 Parcels v. Oohegan ii 700 
 
 Pardee v. Bobertson 11 363 
 
 Pargoad v. Morgan ii BIO- 
 
 Vol. I. 17a 
 
 Parish V. Parish ii 97 
 
 Park V. Cochran i 32, ii 618, 6f8 
 
 V. Halsey ii 401, 418 
 
 V.Hopkins... .: 1187,11112 134 
 
 Parker v. Ash 1 6f4 
 
 V. Bodley ii 7C2 
 
 V. Bradey i BSD 
 
 V.Carter 1138, 1<0 
 
 V. City of Syracuse i 8S5 
 
 V. Cortclyou ii 811 
 
 V. Blkina ii 108 
 
 V. Farr ii 210 
 
 V. Fassit 11 !)03 
 
 V. Foot 1 660 
 
 V Hanson i 122 
 
 V. Lovejoy 1 122 
 
 V. Marston 1332 
 
 V. Merrill i <9t 
 
 v. M'AIlister i 631 
 
 V. M' Williams .' ii 886 
 
 V. Parmele i 696, ii nfA 
 
 V. Piitten ii 366 
 
 V. Philips i 695 
 
 V. E & S. E. 1{. 10 1 829 
 
 V. Sedgwick ii 213 
 
 V. Ptrtudish ii 45 
 
 V. State i ISO 
 
 V. Thompson 1121, 22 
 
 V. Van Rensselaer ii 473 
 
 V. Walrod ii 363 
 
 V Way i87, 95 
 
 V. Yates 1 133, 145, 11 815 
 
 Parker's Lessee v. Gonsalus i 391 
 
 Parkes V. White i 693 
 
 Parkhnrsi v. Lowten ii 932, 9.57 
 
 V. McGraw i 143 
 
 V. Van Coui Hand 11666,741 
 
 Parkins V. Cobbet 11662 
 
 Parkiat V. Alexander .1699 
 
 Parks V. Jackson 1 (.71 
 
 V. Jacksou ex d. Hendrick ii (>2 
 
 V. The Gen. Interest Assurance Co. ii 739_, 756 
 
 Parmelee v. Hitchfock ii 3C3 
 
 V, Thompson ii S74 
 
 Parmeterv. Attorney-General i 694 
 
 Pavrattv Thatcher ii 733 
 
 Parry V. olmond ii 930 
 
 V May 11815 
 
 Parsons V. Aldrich ii402, 405 
 
 V. Bridgham ii 892 
 
 V. I'ain i 786 
 
 V, De Forest i 497 
 
 V. Hosmcr ii 700 
 
 V. Huff ii 8.50 
 
 V.Lyman ii 87 
 
 V.Miller 11731,803 
 
 V. Parsons ii 738, 773 
 
 V. Pearce i 44 
 
 Partheriche V. Mason i 669 
 
 Partridge v. Coates 1 851 855 
 
 I'assmore's Heirs v. Moore i 696 
 
 Piistal v. Wards ii 14 
 
 Pasteur v. Parker i 511 
 
 Pastorions v. Fisher i 656 
 
 Patch V. Hoyt i 49 
 
 Patchen v. Wilson ii 87 
 
 Patchiu V. Astor Mar. Ins. Co ii 906, 969, 969 
 
 V. Pierce 11647. 649, 657 
 
 Paton V. Lent 11 540, 545 
 
 V. Westevelt ii 847 
 
 Patrick v. Hailett ii 1009 
 
 V. Ludlow ii 1009 
 
 Patridge, Ex parte ii 323 
 
 Patterson Bank v. Butler 11 549 
 
 V. Ackerson ii li53 
 
 T. Blosa ii 610 
 
 V. Brown i 689, 701 
 
 V. Oobb i 29 
 
 V.Evans ii 813 
 
 V. Maryland Ins. Co i 350, ii 211, 238, 
 
 260 
 
 v. Mayfleld's Ex'ra ii 201 
 
 V. Patterson i 741 
 
 V. Tucker ii 603 
 
 V. Winn ii 301. 618, 560 
 
 Patteshall v, Tui ford i 599. 7(:4 
 
 Patteson v. Leavitt ii 404 
 
 I'attison v. Hull ii 668, 698. 700 
 
 Patton V. Brown ii 688 
 
 V. Caldwell ii 8 
 
 V. Ei'win's Lessee .^...ii 868 
 
cxxx 
 
 TABLE OP CASES CITED. 
 
 Patton T. Freemsn et al . , . . 1 351, 495, 537, 548, 686, 
 
 588 
 
 V. GoldBtorogli i 319, 82S, 407 
 
 • T.Halsted ... .• i 100 
 
 T.Miller......... ii337, 343 
 
 Patton's Adm'r v. Aeh et al i 676 
 
 V. Craig's Aiim'ra 1349 
 
 Paul T. Meek ii 544 
 
 V. "Van Kirk.... 11 164 
 
 T. White ii 875 
 
 Paull T. Lewis ii 728, 733 
 
 T. Mackey ii 356 
 
 Pawlet V. Belaval- .;;......• i 695 
 
 Pawling V. Bird's Ex'r ii 96, 180, 198, 339 
 
 v. The ITnited States ii 1009 
 
 Paxtsn V. Gobi).-. ii 95 
 
 T. Popham ^ 11684 
 
 v. Stickles i 621 
 
 Paxton's Lessee v. Price i 257 
 
 Payne T. Dudley. i 682 
 
 v.Bden ii 674 
 
 v: Hathaway i 685, 690, 702 
 
 T. Ladue. ii 674 
 
 V. Rogers i 480 
 
 . T. Trezevant.;;; i 126, 129, ii 674 
 
 Paynes v.- Coles.-. ii 4, 6, 63 
 
 Payton's -Lessee-v. Dixon i 462 
 
 Peabody v. Denton ii 565 
 
 ■ T. Peters ii 332 
 
 Peace v. Pearson .- ii 812 
 
 Peacock v. Bell i 823, ii 198 
 
 V. Glascock ii 704 
 
 T. Rhodes i 811 
 
 V. Watson ,....! 301 
 
 Pearce v; Atwood ii 144, 149, 151 
 
 V. -Hooper ii 486 
 
 v. Jenkins i 300, 304 
 
 V. Newlyn . . . .i 695 
 
 Ti Whale i 892, ii 592 
 
 Pearl v. AUen ii 373, 341, 460, 468 
 
 V. Howard ii 587, 688 
 
 V. M'Dowell ...ii 266 
 
 V. Wells il 117 
 
 Pearson v. Dwiglit ii 273, 430 
 
 Pearson v. Belchier i 700 
 
 T. lies ii 810 
 
 V. Pearson ii 673 
 
 V. Pulley 1 679 
 
 V. Wightman i 586, ii 603 
 
 T. Wright ii 919 
 
 Peas V. Morgan i 867 
 
 Pease v. Howard ii 396 
 
 • Peaslee v, Staniford 11 132 
 
 Peay v. Picket 11 516, 560, 588 
 
 Peck V. Botsford i 442, 483 
 
 v.- Harrington 11 302, 443 
 
 V. Gale 11 258, 844 
 
 V. Hnl)liard ii 192 
 
 V. Jones i 378 
 
 V. Wilson ii 402 
 
 V. Woodbridge ii 28, 65, 95 
 
 Pecker v. Hqyt 1 411 
 
 Peckham v. Potter i 328 
 
 Peddicord v. Hill i 460, 474, 476, ii 687 
 
 Pedley v. Wellesley 1 80 
 
 Peebles V. Porter i 745 
 
 V. Reading ii 660 
 
 Peet V. Couvenhaven .ii 115 
 
 Pegg V. Walford ii 873 
 
 Pegram v. Isabel il74, 893, 395, 897, 402, ii 126 
 
 PeiBchv. Dickson 11724,727, 747 
 
 V. Ware ii 406 
 
 Peiepscut Propri. v. Ransom 1 666 
 
 Pelham v. Picfeersgill 1 600 
 
 Pelleoat v. Angel 11-684 
 
 Pelletreau v. Jackson 11 493, 494, 499 
 
 V. Moore ii 1006 
 
 V. Rathbone 1689 
 
 Pelzor V. Cranston 1 372, , 879 
 
 Pemberton v. Bellington i 806 
 
 Peuder v. Pobes il 667 
 
 Pendleton v. Bank of Kentucky i 808 
 
 V. Button 11374, 583,686 
 
 V. Commonwealth il 654, 665 
 
 V. Weed i 386, 410, il 838 
 
 Peney y. Gilliland ii 394, 897, 443 
 
 Penllold T. Carpenter i 4, 405 
 
 V.Cook 1 36 
 
 Penn v. Meeks ii 149, 164, 300 
 
 Pennell V. Hinman i 466 
 
 Penn's Lessee v. Hartman 11 301 
 
 Penn's Lessee y, IngMm , , . , , .,.di401 
 
 i,y.,Ingrahani ... , .J^il846 
 
 Pennimaji.T. ISattemore. 11 680, 716 
 
 . .V. Pachin .:ii 40? 
 
 PenningtouT. Scott ..,.,,,., ii 867 
 
 Pennockv. Dialogue ii 1004 
 
 Penobscott B. Co, t. WilMns i 464 
 
 Pernisylvaniav. Bell 16, 844 
 
 Y. Parrel i 60 
 
 V. Haldeman ii614 
 
 V. Huffman ii 111 
 
 -V. Leach I 47 
 
 v.'M'Fall 1-, 5 
 
 v.M'Kee ii 614 
 
 y. Myers 1634,636,638 
 
 Y. Stoops i 88, 288, 289, 537 
 
 Penny v. Corwithe , . . .ii 483 
 
 V. Martin .....ii 108 
 
 Penrose v. Grifath i 473, ii 574 
 
 V. King 1677, 678 
 
 Penticosty, Lee 11782 
 
 Pentlandy. Somers., i 668 
 
 Pentz V. Stanton'. ii 691 
 
 v. Wintei-bbttom 1426, 571 
 
 Penwarden V. Ching - 1649 
 
 People V. Abbott .ii 940 
 
 V. Albertson i 835 
 
 V. Allen , ii 149 
 
 v., Anderson i 290 
 
 V. Anthony i 833 
 
 V. Badger ii 607 
 
 V. Badgley 1 537 
 
 V. Banker 11 243 
 
 V. Barrett 11118,111 
 
 V. Bill. ' 1 85 
 
 v.; Blakely; . . . : 1 301, 332, ii 900 
 
 V. Bleeckeret al i 773 
 
 V. Bodiiie i 615, ii 900, MKM 
 
 V. Br/idfora. . . ; .If ,601 
 
 V. Breese i 621, 625, 11' 273 
 
 v.Bridge 11223, 224 
 
 V. Brighani '. ii 871 
 
 V. Broad il 871 
 
 V. Brooks . . . .' i 672 
 
 T. Brush 1 786 
 
 V. Bryaii : . . i 602 
 
 V. Buctland ii 48, 55,-*27 
 
 ■V. Burden 1835 
 
 V. Burke i 891 
 
 T.'Bush U 871 
 
 V. Call ii 66 
 
 V. Carpenter i 604, 611 
 
 T. CasDorous .' 11 111 
 
 t. Olty 'of Brooklyn i 611 
 
 V. Christie ii 910, 948 
 
 V. Chrystal 11219, 230 
 
 V. Clenients 1 770 
 
 T. Cochrane ; 1601, 602 
 
 V. Colbern i 80, 85 
 
 V. Collins 1593,11223. 224 
 
 v. Columbia Com. Pleas i 168 
 
 V. Colt 1 831 
 
 V. Cook i 593, ii 261 
 
 V. Cooper ii 154 
 
 V. Costello 1 665 
 
 V. C. P. of New York 11 814, 860 
 
 V. Croucher ii 904 
 
 V. Cunningham ,..ii 998 
 
 V. Cutting ii 135 
 
 V.Davis 1505, 604, 770 
 
 V. Dean { 60 
 
 v. Demott il 883 
 
 V. Denton ii 111 
 
 V. Deyst 11269 
 
 V. Dowelle ii 886 
 
 V. Dunning ii 166 
 
 V. Dyle i 616 
 
 V. Eastwood 1785 
 
 V. Bills ii 111 
 
 V. Btz 1 174 
 
 V. Ferguson i 6 
 
 V. Ferris 11809 
 
 V. Fishkill and B. P. R. Co ii 257 
 
 V. Foote i 871 
 
 V. Frazler i 735 
 
 V.Fultou Fire Ins. Co 1286, 269 
 
 V. Gardner i 599, 601, 891 
 
 V. Gay ii 939, 958, 980 
 
 V. Genung 1 375, 736, 11 904, 1005 
 
 V. Gilbert .'.1 605 
 
 V. Gilchrist i gis 
 
TABL5 OP CASKS CITED. 
 
 CXXXl 
 
 People v. Goodwin ii 56, 111, 112 
 
 , V.Green i 183, 888, 449, ii 88 
 
 T. Qrinzig ; i 289 
 
 V. Harris ii 253 
 
 v.Hartnng i 785 
 
 V. Haynes 1432,830, 834 
 
 V. Hendrickaon i 562, ii 223, 242 
 
 V. Hennesy i B37 
 
 V. Herkimer ii 273, 1006 
 
 T. Herrick i 23, 834, ii 319, 946, 957 
 
 V. Hetticfc ii 871, 980 
 
 V. Hewitt ii 604 
 
 V. Hicks ii 840 
 
 V. Hoag i 835 
 
 y. Holbrook ii 525, 541, 997 
 
 V. Holmes i 747 
 
 T.How iTlO, 773 
 
 V.Howell 160, ii 673 
 
 v.Hulbut ;,..il67 
 
 V. Hnlae ii 981 
 
 V. Humphrey i 96, 452, 542, ii 279 
 
 V. Irving i 30, ii 939 
 
 V. James i 21 
 
 V. Jameson ii 692 
 
 V. Jolinson i 536, 638, ii 18, 61 
 
 V. Jerdine i 404, 538 
 
 V. Judges of N. Y ii 110, 111 
 
 V. Judges of Wasliington ii 1006 
 
 V. Judges of "Westclieater ii 1006 
 
 V. Justices of Clienango ii 105 
 
 V. Kelly ..ii 870 
 
 V. Kennedy i 614 
 
 V. Kceber ii 137 
 
 V.Lake i 7S5 
 
 V. Lee ii 871 
 
 V. Leonard i 64G, 647 
 
 V. Lyncli i 567 
 
 V. Manhattan Co i 603 
 
 V. Maeon i 299 
 
 V. Mather 11878, 888,889, 891 
 
 V. Matteson ,- i 16, ii 9o'2 
 
 V. Mauran ii 301 
 
 V. Maxwell — i 536 
 
 V. McGann 1604, 611 
 
 V MeKinney i S35 
 
 V. M'Collister i 547 
 
 V. MoWhorter i 615 
 
 V. Mead i <)fl2 
 
 V. Medical Society i TOl 
 
 V. M'Garren i IS, ii 5fi 
 
 V. M'Gee i 5, 10 
 
 V. M'Henry ii 508 
 
 V.Miller i S, ii i:)7 
 
 V. Minck ii 259, 311 
 
 v.M'Leod i 633 
 
 v.M'Mahon 1432, ii 'ii-r 242 
 
 V. M'Mair i 11 
 
 V. M'Morray ii 904 
 
 V. Monroe . . . .' i 805 
 
 V.Moore ii ii9. 236 
 
 V, Mott ii 320 
 
 V.Newman i 390 
 
 V. Niagara C. P ii 673 
 
 V. Nivens : ii 273 
 
 .Norton ..i 747 
 
 . Ontario .:.i 95 
 
 .Olcott ii HI 
 
 . Orcutt i 601 
 
 ■. Overseers of Ontario i 87 
 
 -.Parish 1118, 205, ii 998 
 
 . Pease i 24, 693, il 130. 259 
 
 '. Peck ii 258, 290 
 
 .Pentz - ii 904 
 
 .Pierpont i 752 
 
 .Pollyou ii 305 
 
 . Porter i 632 
 
 . Powers i 581, ii 252 
 
 .Preston i 638 
 
 . QuackenhoBs i 601 
 
 . Quoteau i 884 
 
 . Bando i 767 
 
 . Rankin i 551, ii 651 
 
 . Eathbun 1770, ii 998 
 
 . Keeder ii 942 
 
 .Hector i 785 
 
 . Eederer i 464 
 
 . Restel.... .11220,227, 849 
 
 .Riokert i 741 
 
 . Robertson 1551 
 
 .Robetaille - ii 871 
 
 .Rogers 19,548,601, 773 
 
 V. ( 
 v. ( 
 
 People V. Rowland 1571, 11493, 498 
 
 V. Ruloif 1632, 537 
 
 , v.teyder.. 1 854 
 
 V. Safford ,Ii 982 
 
 V. Sanders ii 112 
 
 V. Saunders ii 212 
 
 V. Saxton 1608, 785 
 
 V. Schuyler ii 268 
 
 V.Scott 1283,401,405,406, 539 
 
 V.Shaw 1834 
 
 V. Slater 1 845 
 
 V. Smith 1536, 710 
 
 V. Spooner 11604, 620 
 
 V. Stout 1138, 773 
 
 V. Sturtovant -ii 3 
 
 V. Superior Court of N. T. . .1 678, 714, 11 860 
 
 V. Supervisors of Columbia 1 701 
 
 V. Teal ,.:....! 601 
 
 V. Teft ; ,. 11832 
 
 V, Thayers ii 662 
 
 V. Thoms 1 770 
 
 V. Throop :: ii 313 
 
 V. Tilton 1635 
 
 V.Travis i 835 
 
 V.Tripp i 532 
 
 v.Tnrrell 1 638 
 
 V. Vane 1763,11980,988,1000 
 
 v. Van Nostrand i 647 
 
 V, Van Steenburgh i 832 
 
 V. VanWyck 11807, 819 
 
 V. VermUyea . . ..u 807, 860, 861, 863, 864, 871 
 
 Y.Ward 1 637 
 
 V. Watts 11975, 976, 978 
 
 V. Weeks i538, 539 
 
 V.Wendell i 713 
 
 V. Whighsaa 11 916~ 
 
 V.Whipple 123,106.547. 565 
 
 V. White 11 223 
 
 V. Wiley 1 845 
 
 V. Willey Ii 952 
 
 V. Williams 1112,565, 574 
 
 V. Witness J... ;. ii 809 
 
 V. Wynehamer ii 998 
 
 ex rel. Ordronaux v. Chegaray i 89 
 
 Van Valkenbergh v. Recorder of 
 
 Albany 11 137 
 
 Pepoon V. Clarke ;.>. 1 463 
 
 V. .Jenkins 11187, 421 
 
 Peppin V. Solomons 1 836 
 
 Percival v, Jones ii 144, 153 
 
 Perigal V. Nicholson 11 874 
 
 Perine V. Van Note 1 214 
 
 Perkin V. Proctor ii 143,144,151, 160 
 
 Perkins V. Bumford li 674 
 
 V. Burnet 1608, 509 
 
 V. Catlin 11670 
 
 V. Fairfield 1128, 80 
 
 V.Kent ' 1 682 
 
 V.Parker 1482, il 186 
 
 V. Williams ii 86 
 
 V. Wing 11404, 405 
 
 Pernam V. Weed ii 783 
 
 Perrie V. Williams i 404 
 
 PeriUat V. Puesch 1 177 
 
 V. Peuch 11 109 
 
 ' V. Tiffany 11862,863 
 
 Perrinv. Broadwell 11 660 
 
 Perrine v. Cheeseman ii 455, 666, 672, 696 
 
 Perringv. Tucker 1440, 11885 
 
 Perron.v. Maillan 11 688 
 
 ■Perry V.Aaron 1838, 850 
 
 ■ V. Botsford et al 1811,817, 855 
 
 V. Gebreau 1462 
 
 V. Gibson ii 896 
 
 V. Head 11 701 
 
 V. Marston 1 i'681 
 
 V. Massey ii 983 
 
 Perry V. Smith. 1327, 11975 
 
 V. Walker i 854 
 
 Ferryman v. Steggal ii 875 
 
 Persons V. Jones 11 4 
 
 Peru Iron Co. Ex parte 1 606 
 
 Peryv. White ; 1611 
 
 Petapsco Ins. Co. v. Southgate ii 845 
 
 Peter v". Bealls 11873 
 
 V. Cocke 1 866 
 
 v. Hancock i 134 
 
 Peters V. Anderson ii 123 
 
 V. Newkirk li 405 
 
 v.Plerce 11402 
 
 Peter's Lessee v.CoBdron ii 460, 587 
 
cxxxu 
 
 TABLE OF CASKS CITED. 
 
 Petersen v. The Chem. Bfc. ; ii 76. 86 
 
 Peterson V. Willing i 133 
 
 Petit V. Beshler ii 588 
 
 V. M'Adam ii 460 
 
 Petman v. Eridger i 659 
 
 Petrie v. C^hristy ii 672, 674 
 
 V, Woodwortli ; . . . . i 460 
 
 Pettibone v. Derringer ii 845. 84H 
 
 Pettigru V. Sanders ii 514 
 
 Pettingal V. Brown : i 59 
 
 Pdttit V. Shepard ii 785, 803 
 
 Pettiward v. Prescott i.690, 695 
 
 Petle- V. Gale ii 767 
 
 Pew V. Lividais ii 679 
 
 Peyravin v. Winter ii 118 
 
 Peyton v. Gov of St. Thomas' Hospital i 616 
 
 V. Ballet ii 545 
 
 V. Stith 1690, ii II-.' 
 
 Phealing v. Kenderdine ii 929 
 
 Pbebe v. Prince i 9 
 
 Phalan'aCase ii 883 
 
 Fh^ps V. Decker ii 686 
 
 v.Poot 1188 
 
 T. Hartwell 1484,498,810, 819 
 
 V. Holker 11193,198, 339 
 
 T. Prew 1 146 
 
 V. Riley i 868, 11 938, 9.39 ' 
 
 V. Sage 1 671 ' 
 
 Phenix V. Baldwin '. ii 213 
 
 V. Ingraham's Assignees i 333 11 73 
 
 V. Prindle .1 375,,378, .379 
 
 PhiladelpWa Bank v. Craft ,. . .11 165 
 
 V. Officer 1 348, 351. Ii 397 
 
 Philadelphia, Wilmington and Baltimore Rail- 
 
 ' road Co. v. Howard 1 390, 391, .392, ii .390 
 
 Philips V. Biron 11151, 686 
 
 Phillips V. Barber 1 827 
 
 V. Berrlck ii 31, 34, 25, 120 
 
 V. Berryman , 11 116 
 
 V. Crammond ! 11 701 
 
 V. Davies 1 8.^8 
 
 V. Flint li 260, 688, 594 
 
 V.Ford 1442. 812 
 
 V. Hall 1 456 
 
 V. Hunter ...„ 11 83 
 
 V. Hyde ii .3ii9 
 
 V. Keener 11 667 
 
 V. Lyous ii 416 
 
 V. Moseley etal -. 1 788 
 
 V. Paget i 699, 700 
 
 V. Rnble ii 586, 588 
 
 V. Thompson 1 176, 470, li 69 
 
 et al. V. Hose 1 855 
 
 Phillips' Ex'r V. Morrison's Ex'r 1 684 
 
 Lessee v. Robertson 1 605 
 
 Phillipson v. Chase li 648 
 
 Philpott V. Dobbinson 1 839 
 
 Phlnney V. Earle 11 118, 119, 388 
 
 Phipiird v. Mansfield i 611 
 
 Phosbe V. DIgnum ii 286 
 
 Phcenix v. Ingraham's Assignee 1 3i2 
 
 Ina. Co. V. Gnrnue .11 700 
 
 v. Waldeu 1 868 
 
 Phyfo V. Wandell 1 693 
 
 Pickard v. Bailey. 1 778, 779, ii 185, .347, 416, 563 
 
 V. Collins 1 432, 11 893, 900, 937, 963, 932 
 
 Pickering v. Meyers 11 535, 529, 589, 543 
 
 v. Noyea ; ii 8il7 
 
 v. Stamford 1684. 699 
 
 Pickett V. Clairbono ii 21 
 
 V. LogGcon 1 690. 694 
 
 Picijuet V. M'Kay 11 .39 
 
 V. Swan ii 76, 86. 197 
 
 Pidge V. Tvler ii 583 
 
 Pierce v. Chase 1 100 
 
 V. nindsall 1 126 
 
 v. Kimball li 340 
 
 V. Myrick 1 753 
 
 V. PicRens i 856 
 
 V. Pierce 1 477, 478 
 
 V, Tho-nson ii 118 
 
 Plerpont v, Shaplantl li 831 
 
 Plerrepnnt v. Biirnard ii 6!I4 
 
 Piersou V. Balrd 1 6-21 
 
 V. Catlin 11 119 
 
 v. Hooker ii 654 
 
 PIgean et al. v. Commean i 870 
 
 Pigot V. Davis 11 109, 375, 877 
 
 Pigot's Case 11 483 
 
 L'lgot 
 
 Plgottv. Uolloway 1610,11 603 
 
 Pike V. Croiicll 1 397 
 
 Pike V. Dyke S 407. 410 
 
 V.Hayes 179,80,246. 301 
 
 V. Street .- 11 670 
 
 V. Warren , i 491 
 
 Pilie V. Mollere „. 1 868 
 
 Pillow V. Bushnell i 77. SO 
 
 Hincke v. Cartels 1 69li 
 
 PInkham v. Gean i 646 
 
 Pinney v. Gleason 11 9 
 
 V. Pinney 11 77 
 
 Pinson V. Ivey ii 761 
 
 Pintard v. Tackington 11 665 
 
 Pipherv. Lodge .« 1685, 686, 742 
 
 Pitcherv. 'IheN. Y. and Brie E. E. Co. ...1228, 229 
 
 Pitkin V. Brainerd 11 798 
 
 Pitts V. Temple 11 296 
 
 V. Wilder .1196, 3.34 
 
 Pixloyv. Clark 1 829 
 
 Plank Eoad Go. v. Bruce ii 914 
 
 Plant v. M'Ewin 1 488, 743 
 
 Planter's Bank v. George 11 988 
 
 V. Lauuase 1 323 
 
 Plato V. lieynolds li 940 
 
 Plat's Case ' ii 148 
 
 Platner v. Best • li 24 
 
 Piatt V. Johnson i 655 
 
 V. yherry 11 268 
 
 V. Smith ii 403 
 
 V. Storer 11 34 
 
 V. Walworth i 475, ii 870 
 
 Plattekill V. N w Paltz 1 68 
 
 Platta V. Walrath 1 475 . 
 
 Plaxton V. Dare 1 219, 807 
 
 Pleasants v. Clements ii 18, 62, 66 
 
 V. State 11 887, 911, 929. 9.39, 961 
 
 V. I'emberton 1 123,11 667 
 
 V. Ex parte 11 79 
 
 Pllquo V. Labranche 11 501, 697. 614 
 
 Plumb V. Cattaraugus M. Ina; Co i 188, 465 
 
 Plnmer V. Smiih 11 67.3 
 
 Plummer v. Devet 1 366 
 
 V.Lane 1126 
 
 V. Plnmmer 11 97 
 
 V. Woodburn .... ^ 11 185 
 
 Plumsted's Lessee v. Eudebagh 1 515 
 
 Plunketv. Bowman ii 507 
 
 Plunket'8 Case 1 598. 635 
 
 Poague V. Allen i 683 
 
 Poague V. Richardson 1 7-33 
 
 Pocock V. Billing 1 ,328 
 
 Pococke V. Lee 1611 
 
 Pogue V. Shotwell 11108 
 
 Poignard v. Smilh 11518, 5116. 667 
 
 Poindexter V. Davis 11937 
 
 Poindexter's Ex'rs v Barker ii 421, 433 
 
 Pointet V. Basinirstoke 11 314 
 
 Pole V. Somers (Lord) 11 705 
 
 Police Jury V. Haw 11688 
 
 Pol k's Lessee v. Eobertson 1 442, 462, 463 
 
 I'ollardv. Bell ii 175 
 
 V. Dwight 11 511 
 
 Pollen V. LeEoy i 786 
 
 Pollock's Lessee v. Gillespie 1 100 
 
 Pomeroy v. Winshlp 1G79 ii 656 
 
 Pomfret V. Windsor 168.3, 6£6 
 
 Pomroyv. Preston 11 1006 
 
 Pondv. Negus ii 149 
 
 V. Sage 1 43 
 
 Ponaonhy v. DebalUon 1 188, 190, 192, 215 
 
 Pool V. Bridges 1 186,189, 197 
 
 V. Brooks 11 201 
 
 V. M'Crtllum 11898 
 
 V. Symond 1 647 
 
 Poole V. (^abanea 1701 
 
 V. Richardson 1 129 
 
 Pooler V. Maples ,,.11 849 
 
 Pooly V. Longuevill i 828 
 
 Poorman v. Crane 11 186, 201, 351 
 
 v. Smith's Kx'r 11 1000 
 
 Pooser Y. Tyler 11 Ii45 
 
 Pope V. Barret i 848 
 
 v. Hush 1 703 
 
 V. Lemasier 1698 
 
 V. St. Leger 11 6S4 
 
 Popham V. Desmond 1 682 
 
 V. Eyre 1 698 
 
 Porter v. Cole 11 9 
 
 V, Cooper 11 ,348 
 
 v. Ferguson , i 186 
 
 V. Harris U 1006 
 
 V, Hundred of Eegland 1 S5 
 
TABLE OF CASES CITED. 
 
 CXXXIU 
 
 Porter T. I/lddle i 737 
 
 V. Luther i 21S 
 
 v. Pill8bury li 212, 214 
 
 V. Rose 1 69li 
 
 V. Stewart 1 (iSB 
 
 V Tftlcott i 818 
 
 V. Warner i 221, 222 
 
 V. Wilson ii 663 
 
 Porter's Adm'i s v. Kenut i 440, 748 
 
 Portier v. Barclay i 589 
 
 Porttnore v. Goring ii .S2(> 
 
 Portsmouth Li v. Co. v. Watson ii 273 
 
 Posson V. Briiwn ii 393, .396 
 
 Postmaster Gen U. S. v. Norvelle ii efi2 
 
 Postou V. Eubank i 685 
 
 Potter V. Barclay .1 589 
 
 V, Bailey i 397 
 
 T. Deyo i 822 
 
 V.Hopkins ii 053, 670 
 
 V. Hyndman ii 474 
 
 V. State ii 887 
 
 V. Thompson i 827, 854 
 
 T. Titcomb i 604, 677 
 
 V. Wcbb> ii 81 
 
 v. Yale College ii 686 
 
 Potts V. Ward ii 406 
 
 Poultney v. Fairhaven ii 89 
 
 V. Koss i 379 
 
 Povall Ex parte ii 418, 421, 4ii4 
 
 Powell V. Biddle ii 773 
 
 V.Clark ii 7>'5 
 
 V. Ford ii 598 
 
 V. Godsale i 676 
 
 V. Hanfcey i 683 
 
 V. Hodgotts ; i 49.i 
 
 V Horton ii 726 
 
 V. Jones i 820 
 
 V. Milbank i 605, 641, 660 
 
 V. Milburn i 005, 660 
 
 V. Monson, &o. Man. Co ii 701 
 
 V. Waters i 120, 391, 393, 394, 395 
 
 Power V. Butcher i 806 
 
 V. Kent r i 137 
 
 Powers V. M'Ferran ii 1001 
 
 V. People (The) ii 137, 144, 148 
 
 V. Rassell 11660,662,663, 764 
 
 Prall V. Feet's Curator ii 128 
 
 Prandt ex dem. Van Cortlandt v. Klein i 30 
 
 Prather v. Johnson i 303 
 
 Pratt V. Carroll i 098 
 
 v.Foot 11298.410 
 
 V. Haokett ii 404 
 
 v. Jackson ii 721 
 
 V. Malcolm ii 1002 
 
 V. Northam ii 81, 83, 88, 118 
 
 V. Peckham ii 393 
 
 V. Sladden ii 707 
 
 V. W'eyman i 700 
 
 Pray v. Pierce i 747 
 
 Prentice v. Achorn ii 687 
 
 Prpscott V. Fisher il 343 
 
 v. Hutchinson 1 747 
 
 V. Petl.ee ii 375 
 
 V. Phillipps i 654, 659 
 
 President &c. V. Goff ii 19 
 
 V. Hamlin ii 355 
 
 of Bucks and Dauphin Turnpike 
 
 Co. V.Myers.. 11467. 603 
 
 Prest V. Mercereau i 379 
 
 Preston V. Boston ii 164 
 
 V. Christmas ^ .ii 693 
 
 V. Dayton ii 549 
 
 V.Harvey ii 39 
 
 Preston's Heirs v. Bowmar ii 783, 785 
 
 Prevost V. Gratz i 607, 686, 687, 690, (i93 
 
 V. Simeon i 734 
 
 Prcwett V. Marsh i 33 
 
 Prewitt V. Kenton ii 8 
 
 V.Tilly i 43 
 
 Price V. Booltby . ; ii 332 
 
 V.Boyd ii28, 62, 108 
 
 V. Branch Bank of Decatur 1 332 
 
 V. Bym i 693 
 
 V. Oopner i 630, 681 
 
 V. Edmonds ii 692 
 
 V. Gregory i 30 
 
 V. Harwood 1 4.59 
 
 V. Higgins ii 198 
 
 V. Jnstrobe 1675, ii 860, 868 
 
 V. Lyons Bank 1 861 
 
 V. Marsh i 516 
 
 Price V. Page ii 769 
 
 V.Powell 1 180,215, 778 
 
 V. Price I 702 
 
 V. State ii 305 
 
 V. Torrington i 350 
 
 V. Warren ii 862 
 
 V. Wood ii 492, 939 
 
 Matter of ii 827 
 
 Price's Bx'r V. Fuqua'sEx'r i 676 
 
 Prigg V. Adams ii ISO 
 
 Prime v. Stebbins ii 7C4 
 
 Matter of ii 137, 166 
 
 Primm v. Stewart i 250. 641 
 
 Prince V. Heylin i 684, 6f3 
 
 v. Smith i 377, 379, 381, 383, 364 
 
 V. Bwett i Sra 
 
 V. Thomas ii 164 
 
 Prindle v. Glover i 741 
 
 Pring V. Pearcy i 609 
 
 Prlngle v. M'Clenachan i 387 
 
 Pritchard v. Brown i 477, 656, 657. 701 
 
 V. Hicks ii 701 
 
 V. Jauncey i 527 
 
 V. M'Owen i 378 
 
 V. Scott ii 549 
 
 V. Symonds ii 522 
 
 Proctor V. Cowper i6.fl 
 
 V. Newhali ii 83 
 
 V. Dates i 079, 681 
 
 Profflt V. Williams ii 1001 
 
 Proprietary's Lessee v. Kalston i 404 
 
 Propri. of Braintree v. Battles ii 516, 560 
 
 Kenn. Pur. v. Call i 746. ii 342 
 
 Prouty V. Eaton i 139, 143 
 
 Providence Hat Manufacturing Co. ads. Emer- 
 son 11691 
 
 Provis V. Eeed i 317, ii 978 
 
 Psvche V. Paradol ii 81 
 
 Pugh V. State ii 273 
 
 Pngh's Heirs v. Bell's Heirs i 6S6, 690, il 701 
 
 Pugsley V. Anderson ii 2.59 
 
 Pnkiird V. Bliss ii 164 
 
 Pullen V. Eianhard ii 407 
 
 Puller V. Puller t ii 724, 755, 762 
 
 Pullman v. Conning ii 633 
 
 Puntlerson v. Shaw i 376, 879 
 
 Pnnshon's Case ii 384 
 
 Purcell V. M'Namara i 694 
 
 Pardon v Linton's Exr's ii 648 
 
 Purdy V. Delavan ii 404 
 
 V. People ii 301, 341 
 
 V. Vermilyea ,i 805 
 
 Pnrringtou v. Loring ii 366, 372, 375 
 
 Purvis V. Robinson ii 583 
 
 PufiRy V. Desbouvere i 695 
 
 Putnam v. Churchill i 695 
 
 Y.Hall ii 377 
 
 V. Lewis i 475 
 
 V.Mann 11368,372. 374 
 
 V. Shelop ii 119 
 
 V. Tillotson i 2.92 
 
 V. Wise :i 825 
 
 Pyle V. Beckwith 1691, 702 
 
 V. Moulding i 89 
 
 Pyttv. Griffith ii 497 
 
 V. Moore ii 496 
 
 Q. 
 
 Qnackenbnsh v. Ehle ii 705 
 
 Qnarles' Adm'r v. Littlepage 1 433 
 
 Quay V. Eagle Fire Ins. Co ii 978, 981 
 
 Queen v. Averey i 150 
 
 V. Farley i 151 
 
 V. Hawkins i 152 
 
 V. Hayward i 150 
 
 V. Inhabitants of North i 360 
 
 V. Matthews ii 160 
 
 V. Soley ■. i 845 
 
 V. State ii987, 988 
 
 V. Tilney et al i 151 
 
 Query v. Brindlinger i 847 
 
 Querryv. White ii 653 
 
 Quesnel v. Woodlef ii 698 
 
 Quick V. Johnson 1418 
 
 Quigley v. Furlong i 866, 867 
 
 Quin V. Astor i 805 
 
 V. Reynolds ii 403 
 
 Qnin's Case l 769, 770 
 
 Quince's Adm'rs v. Koss' Adm'rs i (i78 
 
cxxxiw 
 
 TABLE OV CASES CETED. 
 
 J R. 
 
 Kaborg's Adm'x v. Hammond's Adm'r i 264, 
 
 ii.79, 83, IBS, 163 
 
 Eabun v. Shoctridge ii 117 
 
 Eachfleld V. Careless il T53 
 
 EadcliffT. Ship iiS, 436 
 
 Eaddiffe v. Pemberton ii CDS 
 
 V. United Ins. Co ii 173, 275, 4,31 
 
 Eaganv. Uargill i.iiSlS, 214 
 
 V. Kennedy ii 361 
 
 Eaggett V. Musgrave i 447 
 
 Eaikea v. Eicliards i 742 
 
 Eaines V. Phillips ii 492 
 
 v.Towgood ii 930 
 
 Ratestraw V. Brewer 1679 
 
 Kalston v. Miller i 222 
 
 Eamadge V. Eyan i 785 
 
 Eambler v. Tryon 1316, 785 
 
 Eamsbottom v. Cooper ii 332 
 
 V. Tunbridge 1577 
 
 Bamsbottom's Case ii 453 
 
 Eamseyr. Johnson ii 512 
 
 Eamsey's Appeal 11135,155 
 
 ■Hand v..Eand 1 869 
 
 ■Kandall v., Errington i 692, 693, 694 
 
 T.Phillips 11666,686,703 
 
 V. Eandall 11 402 
 
 V. Eich i 806 
 
 V. Van Techten ii 691 
 
 EandaU's Case .il 164 
 
 Eandel v. Ches. and Del. Canal Co i 35, ii B38 
 
 Eandolph v.. Perry ii 696 
 
 Eandolph's Ex'r v. Eandolph's Ex'rs i 700 
 
 Bank v. Shewey ■. . .ii 512 
 
 Eankin v.. American Ins. Co 11729,731, 798 
 
 v. Blackwell i 606, 607, 751 
 
 y. Bradford i 686, 691 
 
 V. Cooper ii 210 
 
 T. Hudson ii 514 
 
 v: MaxweirB.HeirB .11 67 
 
 ' Eanny V. Church i 35 
 
 Eanson v. Keyes i 474, ii 675 
 
 Eapelje V. Emery ii 187 
 
 Eapp V, Le Blanc , ii 984 
 
 Eappelye t. Prince ii 4 
 
 Eatclifle v. Allison •. . .ii 698, 699 
 
 v.Blshop 11402 
 
 T. BJeasby ii 326 
 
 V.Wales 1 78 
 
 Eathbun v. Emigh i 374 
 
 V. Martin ii 145 
 
 V. Eathbun 11 661, 643 
 
 Eavee v. Parmer li 23, 412 
 
 Eawdon v. Shadwell 11 682 
 
 Eawle T. Skipwitb ii 867 
 
 Eawlings v. Commonwealth i 749 
 
 V.Hall 11929, 930 
 
 Eawlins v. Timberlake 1 483 
 
 Eawls v. Amer. M. h. Ins. Co i 486, 785, 820 
 
 EawBon v. Adams i 208, 509, 511 
 
 V.Turner 11 53 
 
 Eawstome v. Bentley i 698 
 
 V. Parr ii 699 
 
 Bay v. Bush 1 390 
 
 V. Mariner ii 876 
 
 V. State i 106 
 
 Raymond V. Rowland 11 128 
 
 V. Johnson i 481 
 
 V. Roberts ii 663 
 
 T. Selllck ii 512 
 
 V. Smith ii 661 
 
 Eaymond v. Squire i 481 
 
 V. Wheeler 1 747 
 
 Eayner v. Pearsall 1 684, 699 
 
 Raynham v. Canton 1 251, ii 428, 431, 432 
 
 Eaynor v. Robinson ii 706 
 
 Eea V. Gibbons 11 404 
 
 V. M'Eachron ii 84 
 
 Eeab v. M'Allleter 11 117, 670, 673 
 
 Read v. Barlow 1 378, 384 
 
 V. Duncan 11 667 
 
 V. Goodyear i 666, 066 
 
 V. Smith 1 144 
 
 Reade v. Livingston 1 608 
 
 V. Reade 1 033, 633, 690 
 
 Beading v. Price 11 150 
 
 V. Weston . . , i 197, il 048, 040, 658, 0S2, 740 
 
 Eearden y. Searcy's Heirs 1 677 
 
 Beay v. Richardson 11 670 
 
 Bedden V. Spruance 1186, 384 
 
 Bedding's Lessee v. M'Cubbin 1 223 
 
 Bedford's Adm'r v. Peggy ii 597, B93, 613 
 
 Bedhead v. Cator li 691 
 
 Redington v. Eedington 1 608, ii 708 
 
 Bedmanv. The State i 89 
 
 Bedwood V. Eiddick 1685, 686, ii 701 
 
 Eeed v. Bullock ." i 690 
 
 V. Chambers 11 681 
 
 V.Clarke 11 698 
 
 T.Davis ii 366 
 
 V. Dickey .; 1.318, 322 
 
 V. Gillett i 593, 11 397 
 
 (T. Hooper ii 343 
 
 V. Jewett ii 650 
 
 T. M'Grew 11694,695 
 
 V. People i 778 
 
 •V.Price 1 670 
 
 V. Pruyn : 11 674 
 
 V. Reed i 186 
 
 V. Eocap 1432, 508 
 
 V. Bobs 11187, 474 
 
 V. Schenck ii 784, 785, 803 
 
 T. Wilmot ii 140 
 
 V. Wood U666, 667 
 
 Beeder v. Barr ii 475 
 
 Eeeks v. Postlethwaite 1 679, 681 
 
 Eeels T. Knight i 741 
 
 Bed's Bx'r v. Beel i 316, 317, ii 316, 317 
 
 Eees V. Berrington ii 692 
 
 T. Bowen ii 3S1 
 
 V. Lawless 1 316, 11 63, 67, 72, 517, 6.32 
 
 v: Lloyd i 667 
 
 T. Overbaugh .....1873,11 843 
 
 V. Eogers i 818 
 
 V. Smith 1817, il 914 
 
 Reeves V. Burton 1131, 142 
 
 V. Middleton i 441 
 
 V. Eeeves 11 701, 763 
 
 T. Towles 11 474 
 
 Regan v. Kennedy ii 63 
 
 Regina v. Beeston ii 216, 230 
 
 v.Blrd 1390, 400 
 
 V. Carnage 1 890 
 
 v. 'Greenwood i 113 
 
 T. Mears 1 206 
 
 V. Moreau ii 48 
 
 V. Murray i 630 
 
 V. Perkins i 11 
 
 V. Sherman 1 537, 538, ii 243 
 
 V. Sleeman ,..,11 243 
 
 V.Wheatland i 835 
 
 Reichart v. Beidleman 11 650, 963 
 
 Eeld V. Borland 11 75 
 
 v. Colcock u288, 520 
 
 T. Coleman ...;..ii 325 
 
 V. Gifford •- i 654 
 
 T. Eeld ii 653 
 
 Reigart t. Ehler ii 674 
 
 V. Ellmaker i 189 
 
 Reigne v. Dewees i 786 
 
 Reitenbach v. Reltenbach i 494, 741 
 
 Eelph V. Gist ii 455 
 
 Belyea v. Beaver i i 843 
 
 V. Eamsay ii 148, 405, 406 
 
 Bembert v. Brown i 344 
 
 Eemer v. Bank of Columbia 1 670 
 
 Bemmle v. Hall.' '.i 406,- 639 
 
 Eemon v. Hayward ' ii 733 
 
 Benalds v. Smith 1 870 
 
 Eenard v. Fuller i 643 
 
 V. Sampson ii 693 
 
 Benn v. Contributors, &c ii 1000 
 
 Eemier v. Bank of Columbia. . . .ii 516, B60, 665, 728, 
 
 788 
 
 Beno v. Crane 1 .448 
 
 V. Davis ii 724 
 
 V. Piuder il IBS, 392 
 
 Renwick v. Williams 11 873 
 
 Repeau v. Budden ,i 455 
 
 Rcpsher v. Shane ; . .i 837 
 
 Eequa v. Holmes ii 14 
 
 Berick v. Kern i 658 
 
 Eespublica v. Davis 1 199, 807, 309, 11 4, 8 
 
 V. Duane ii 830 
 
 V. Glbbs 11 939 
 
 V. Goss 11 sea 
 
 V. Hervlce i 88, 96, 740 
 
 V.Keating i 60, 61 
 
 V. Malln i 766 
 
 V. M'Carty 1 538, 567 
 
 V. Mulatto Bob 1 8 
 
 v.Newell i 844 
 
TABLE OF CASES CITED. 
 
 cxxxv 
 
 Bespnbllca v. Oswald , .ii 8S1 
 
 V. Hoberts i 567, 753, il 114 
 
 v.EoSB i60, 123 
 
 V. Shriver i 69 
 
 V. Wright 1 60 
 
 Eenbena v. Joel li 366 
 
 Eevere v. Leonard i 131, ii 645 
 
 Eewaltv. Ulrlch ii 640 
 
 Eex T. Abergwilly^ 1 174 
 
 V. Adama ^^ i 636 
 
 ■V. Addis ^m 1 116 
 
 V. Allen ^TT! 1 636 
 
 V. All Saints i 610, il 67, 157 
 
 V. Appleby i 487, 438, 440 
 
 V. Atwood il 538 
 
 V. Baokler i 570 
 
 V. Bagg ii 873 
 
 V.Baker i 68 
 
 V. Barber 1 391, 394 
 
 V. Barker ii 904, 953, 956 
 
 V. Barnard ii 943 
 
 V. Bamsley i 666 
 
 V. Barr.. 1 659 
 
 V. Beardmore ii 809, 810 
 
 V. Beaven j i 59 
 
 V. Beezley. ., 11788, 903 
 
 V.Bell ^....11 918 
 
 V. Bellamy ■. ii 344, 347 
 
 V. Bembridge i 753 
 
 V. Berry i 835 
 
 V. BevMly .,, ii 314 
 
 V. Bingbam .,,., li 350 
 
 V. Bishop Auckland i 43 
 
 Vj Bispbam .■. ii 967 
 
 T. Bliok .• i 495 
 
 V.Bowman i 149, 156, 349 
 
 V. Brewer 1 131 
 
 V. Brown ii 886 
 
 V. Burbage ii 837 
 
 V. Batterworth i 883 
 
 V. Carpenter 1 660 
 
 V. Carty .....,, i 533 
 
 V. Castlemorton i 577 
 
 V. Oatesby 1 610, il 379 
 
 V. Oator. .■ ii 604, 608 
 
 V. Chadwick , ii 516 
 
 V. Chapman ii 911 
 
 V. Charnock 1 111 
 
 V. Cheadle if 668 
 
 V. Clapham i 353, 363, 366 
 
 V. Clarke i 180, ii 133, 904 
 
 V. Clean ii 330 
 
 V. Clewes i 406, 588, 539, 736 
 
 V. Cliviger 1 85 
 
 V. Colley ii 886 
 
 V. Coppard i 869 
 
 V. Crawley i 763 
 
 V. Crockett 1 290, 291 
 
 V. Croke ii 473 
 
 V. Orutchley i 191, 193 
 
 V. Danser ii 144 
 
 V. Dawbar , i 110 
 
 V. Dawson 1 835 
 
 V. Denio 1 176, ii 617 
 
 V. D'Eon. ii 864, 870 
 
 V. Derrlngton i 547, 548 
 
 V. Despard i 113 
 
 V. Dawn 1646, 767 
 
 V. DuTham i 110 
 
 V.Edmunds ii 330 
 
 V. BUicombe 11 538 
 
 v.EUis i 536 
 
 v.Bly .■ ii 311 
 
 v. Eriswell 1 174 
 
 V. Evam ii 510 
 
 V. Evans 1 835 
 
 V. Fagg i 586 
 
 V. Fearshire . : i 814 
 
 V. Perry Frs'stone 1 174 
 
 V. Finny ,. 11 867 
 
 V. Fletcher 1 46, 538 
 
 V. Ford ii 511 
 
 V. Gibbons ; i 646 
 
 V. Gilham 1 433, 547, 834 
 
 V. Gilkes ii 157 
 
 V. Gray 1 127 
 
 V. Hadden.'. li 891, 934 
 
 V.Hall 1814 
 
 V. Hanks ii 384 
 
 v.Hardwick ^.. i 546 
 
 V, Hargraves i 113 
 
 Kexv. Harris ..ii 3SB 
 
 V.Harris 11335, 32S 
 
 . v..Hastings 1 110 
 
 V. Hawkins i 6C6 
 
 V. Haworth 1 143, il 641 
 
 V. Haydn 1143 
 
 V. Hazy i 635 
 
 V. Heame 1 538 
 
 V. Helsham 1 441 
 
 v., Hemp Ii 963 
 
 V. Hempstead .1 833 
 
 V. Higgms 1405,406, 539 
 
 V. Hodgson 11 904, 933, 940, 952 
 
 V. Hogg il 330 
 
 v. Holden 11 910 
 
 V. Hollingshead 1 488, 635, 637 
 
 V. Holy Trinity :..i 677 
 
 v.Howarth ii 539 
 
 V. Hudson i 658 
 
 v.~Hughes ii 126 
 
 v.Hnlcott 11 158 
 
 V. Holme 1 61 
 
 V. Hunter.... ii 623, 641, 668 
 
 V. Hutchinson i 387 
 
 V. . Inhabitants of Upper Boddington 1 140 
 
 V. Jacobs i 585 
 
 V. James 11 381, 384 
 
 V. Jehka i 884 
 
 v., Jennings ii 122 
 
 v. John 1 i99, 11 121 
 
 V. .Jones 1 405, 406, 537, 539, 545 
 
 v. King i 570 
 
 v.. Kingston i 545 
 
 V. Knaptoft 11 44 
 
 V. Knight 1 604 
 
 V. KnlU 1835 
 
 V. Lafone 1 46 
 
 V. Laindon • il 683 
 
 V. Lancashire i 834 
 
 V. Leicester il 631 
 
 V. Llangnnnor 11 658 
 
 V. Lloyd 1 287, 660 
 
 y. Long 1 762 
 
 V. Long Bhckby 1 673 
 
 V. Longnor (Iiihab. of) 11 471 
 
 v. Lyon ,. 1 834 
 
 V. Marsden ii 865 
 
 V. Mattingley ii 668 
 
 V.May r 1 863 
 
 V. Mead 1 387 
 
 V.Meade i &33 
 
 V. Mellor 1 114 
 
 V. Merceron 1 433 
 
 V. Merthyr Tldvil 1 677 
 
 V. Micholas 1 184 
 
 V.Millard 1769 
 
 v.Mlnton i 391 
 
 V. M'Lean. i 95 
 
 V. Mogg.. 1 752 
 
 V. Montague 1 660 
 
 V. Moores 1 116 
 
 V. Morris i 865 
 
 V. Morton ii 663 
 
 V. Moaely 1 891 
 
 V. Munton i 753 
 
 V. Murlis.- 1899 
 
 V. Mutineers of Bounty i 64 
 
 V.Nate 1543, 547 
 
 V. Neale i 114 
 
 V. Netberseal 11 77 
 
 V. Netherthong il 899 
 
 V. Nichols i960 
 
 V. Noakes i 114 
 
 V. Northamptonshire 1 735 
 
 V. North.Wingfleia H 658 
 
 V. Nnneham Courtney i 174 
 
 V. Oakley ii 166 
 
 V. Olney .il 658 
 
 V. Orchard ^„ il 910 
 
 V.Owen ^ 1604, StO 
 
 v., Padstow i 569, 577, il 611 
 
 V. Page ii 362 
 
 v.. Pancrass ii 45 
 
 V. Parker ii 978, 9';9 
 
 V. Parkins 11 835 
 
 V. Painell 11 319 
 
 V. Parratt 1 545 
 
 V. Pearce i li 523 
 
 V. Pegler .11 932 
 
 V, Perrott , .1 880 
 
 V. Picton , ,, 11 71 
 
CXXXTI 
 
 TABLE OF CASES CITED. 
 
 Eex V. Pike 1 n 
 
 V. Pitcher ii 933, 945 
 
 V. Plestow 1 830 
 
 V. Plunliett il MO 
 
 V. Povey ii 436 
 
 V. Powell i 835 
 
 V. Rtimeden ii 032 
 
 V. Eawden ii 611, 517, 664 
 
 V. Katcliflfe ii 88(i 
 
 V. Heed i 635 
 
 V, Eoddam ii 827 
 
 V. Rogers i 635, 822 
 
 V. liose Kelly i 10 
 
 V. Rowland i 110 
 
 V. Rowley ii 916 
 
 V. Riidd i 547 
 
 V. Riidge ii 946, 951, 953 
 
 V.Sadler ii 827 
 
 V. Savage ii 209 
 
 V. Soammonden ii 650, 658. 683 
 
 V. Serjeant i 88 
 
 V. Sexton i 645 
 
 V. Sheen ii 112, 113 
 
 •V. Sheriff of Herefordshire ii 120 
 
 V. Shipley 1601, 733 
 
 V. Simmondfl ii 908 
 
 V. Slaney ii 180, 699, 930, 931 
 
 V. Slavery i 180 
 
 V. Smitli ..i 89, 190, 767, 770, ii 106, 113. 123, 
 
 124, 349 
 
 V. Soloman i H35, 884 
 
 V. Steptoe 1405,589 
 
 V. Stimpson ii 879 
 
 V. St. James i 604 
 
 V. St. Lawrence i 60-1 
 
 V. Stoner ii 910 
 
 V. Stourbridge (Inhab. ofj ii 601 
 
 V. St. Paul i 676 
 
 V St. Sepulchre i 257, 351, ii 510 
 
 V. Surry ii 626 
 
 V. Sntton 1838, 885 
 
 V. Swallow i 114 
 
 V. Swatkins i 637, 646, ii !)I8 
 
 V. Taverner i 769 
 
 V. Taylor il 111 908 
 
 V. Thompson i 646 
 
 V. Thornton 1533, 648 
 
 V. Thring 11348 
 
 V. Thruscross .• ii .352 
 
 V. Thurtell i IIO 
 
 V. Trowbridge 1 743 
 
 V. Twyning 1606,640. 813 
 
 V. Tyler et al i 646 
 
 V. Van Butchell i 291 
 
 V. Vanderoomb il 114 
 
 V. Verelst i 605 
 
 V. Wade ii 367 
 
 V. Waters i 683 
 
 V. Ward ii 343 
 
 V. Watkins 1637,11 918 
 
 V. Watson 16.37,766,11 525 
 
 V. Webb i 536. il 886 
 
 V. Wedge .- '..i 252 
 
 V. Wells i 263, ii 943 
 
 V. Whitbread ii 908 
 
 V. Whitchurch 1 680, ii 379 
 
 V. White i 890 
 
 V. Whitehead j. i 193 
 
 V. Wickham ii 658 
 
 V. Wilkes 1 lie 
 
 V. Wilkinson ii 343 
 
 V. Williams ill, 59 
 
 V. Winkles ii 331 
 
 V. Winkworth 1763, 767 
 
 V. Woburn ii 939 
 
 V. Woodley ". .,1133 
 
 V. Woodward i 890 
 
 Eeynjlds v. Bedford 11 lOlO 
 
 V. Brown... («_ 11394, 444 
 
 V. Dnuklik (Estate Line R. R. Co..ii 681 
 
 V. Lonnsberry ii S7S 
 
 V. Manning 1 349 
 
 V. Mitcheir ii 103 
 
 V. Moore 11153 
 
 T. Orvis ii 1411 
 
 V. Reynolds 1 403, ii 108, 117 
 
 V. Rogers' E'rs 11 1001 
 
 V. Soarborough. il 85 
 
 V. Scott 11692 
 
 Eeynoias' Case 1 oqi c93 
 
 llsynoldson v. Perkins 1 680 
 
 Ehind v. Wilkinson 1 833 
 
 Bhoades' Lessee v. Selin. .1 143, 145, ii 80. 85, 486, 621 
 
 529, 585, 845 
 
 RhoadesT. Gnul 1378, 383 
 
 Rhodes v. Bunch .- i 758 
 
 v. Haigh ii 406 
 
 Rhodes' Case 1 601 
 
 Eicard v. Williams i 603, 647, 665, 686 
 
 Eicev. Bancroft ^. i 190. 215 
 
 V. Cannon -ff^ il 62 
 
 V.King j^ ii 27, 115 
 
 V. Mead yf. 11 273 
 
 V. Peat ii 674 687 
 
 V. Spotwood's Heirs -. 11 699 
 
 V. Withers 1408 
 
 Rich v. Broadfleia i 609 
 
 V. Hasson i 44 
 
 V.Rich 11720.784 
 
 V.Trimble "493 
 
 Richard v Swan i 240, 259 
 
 Uichards v. Bennett 1 660 
 
 V. Dutch ii 88, 753 
 
 V. Poulke i 173, 761 
 
 V.Howard 1372, .380 
 
 V. Killam 11 645 
 
 V. McDonald 1870 
 
 . V. M'Kle i 609. 871 
 
 V. Swan 1269 
 
 Richardson v. Anderson 11 431 
 
 V. Carey i 349 
 
 v.Cots i 188 
 
 V. Denison il 1004 
 
 V. Duncan 11 687 
 
 V. Emery i 384 
 
 V. Field .' ii 682 
 
 V. Freeman i 44 
 
 V. l-iolden ii 845 
 
 V. Hooper 11 696 
 
 V. Humphreys i 447 
 
 V. Jones 1 693 
 
 V. Kimball ...\ i 336 
 
 V. Learned i 8.3 
 
 V. Provost ii 553 
 
 v. Richardson 11 179 
 
 V. Scott ii 1->1 
 
 V. Stewart's Lessee 1 395, 11 981 
 
 V. Strong 11 26ii 
 
 V. Thomas 1 602 
 
 * V. Watson 1 723, 7,33, 738. 762, 761 
 
 V. Wilklns 11900, 910 
 
 Richardson's Lessee v. Parsons ii 361 
 
 Richer V. Fitzsimmon il 80 
 
 Hichey v. Ellis 11 335 
 
 Elohmond v. Hays 11 44, 47, 888 
 
 V. Paterson 11282 
 
 V. Vassalborough 1 740 
 
 Ricketts v. Livingston ii 705 
 
 V. Snlway i 860 
 
 Eiddell v. Sutton il 4115 
 
 Riddle v. Stevens ii 2SI.S 
 
 Rider V. The Union India E. Co 1 463 
 
 Eidgleyv. Spencer ii 361 
 
 Eldgley v. Johnson i 264, 343, 357, ii 4?0 
 
 Rldgway v. Farmers' Bank i 343, il 296, 297 
 
 Ridgly V. Campbell : 11 867 
 
 Riggings v. Brown 1 400 
 
 ,Elley V. Suydam 1 613 
 
 Ripley V. ivfason i 484 
 
 Rinchey v. Stryker 11 193, 866 
 
 Eldont V. Bristow 11 675 
 
 V.Lewis 1683 
 
 Riegel V. Eothrock 11 83 
 
 Rigden v. Martin ii 405 
 
 Eigdon Heirs v. Eigdon Devisees i 38 
 
 Rigglns V. Brown i 400, 11 4 
 
 Eiggs V. Dennlston 1 i 135, 143 
 
 V. Lindsay i 734 
 
 V. Tayloo 11516,618,633,654. 916 
 
 Eight's Lessee v. Mifflu i 615 
 
 Eiley V. Oonrley i 743 
 
 v.Eiley 1185,86, 87 
 
 V. Suydam 1 92 
 
 Ellsv. Questl 11 80 
 
 Einaldl V. Rives ii BU) 
 
 Ring V. Prauklin 11 285. 647 
 
 v.Groiit 1 218 
 
 Elnggold V. Galloway i 349 
 
 V. Tyson 1 126 
 
 Ripon V. Davis H31, 137 
 
 Elpple V. Ripplo 1 611, ii 78, 420, 437, 429 
 
 Risden V. Ingfet 11403 
 
TABLE OP CASES CITED. 
 
 CXXXVU 
 
 Eison v. Berry H 
 
 Kitchie v. Lyne i 
 
 V. Putnam i i 
 
 River's Case ii 
 
 Rixey v. Bayae. . . ; '.'. .ii 9S2, 
 
 Roach V. CoBine ii 
 
 Roads V. Symmes !".".".!!.*.*.!*. *.ii 
 
 Rob V. Montgomery i 
 
 Robards v. Wolfe ii 
 
 Robb V. Hackley ■. ii 
 
 Robblna v. Abrahams i 
 
 V. Bacon i 
 
 V. Bntler ii 
 
 T. Coryell ii 
 
 V. Harvey i40a, 
 
 V. HoUey i 
 
 V. Otis 1847, 
 
 V. Willard 1 
 
 Robera v. Morgan i 
 
 Robert v. Andrews '...'.'.'.',. A 
 
 Roberts v. Allatt ii ___ 
 
 V. Anderson ii 209, 
 
 V. Barker ii 
 
 V. Bradshaw ii 
 
 V. Barks i 
 
 • V. Bnrtia .,, .i 
 
 V. Clark . ..i 
 
 V. Cafflu i 
 
 V. Downes ii 
 
 V. Dozen ii 
 
 V. Gee i 407, 
 
 v. Grealey i 514, 
 
 V. Hai'nage i 514, 
 
 ads. Jacliaon ii 592, 
 
 V. Morgan i 
 
 V. Peake i 
 
 V. Price i 
 
 V. Salisbury 1 
 
 V. Simpson i 897, 
 
 V. Sykes i 
 
 V. Tennell i 669, ii 69, 460, 468, 472, 
 
 Roberts' Widow v. Stanton ii 
 
 Robertson v. Allen ii 
 
 V. Archer i 410, 
 
 V. Barbour ii 78, 
 
 V. Campbell ii 
 
 V. Crockett i 175, 321 
 
 V. Dunn ii 
 
 V. French ii 726, 
 
 V. Lynch i 586, 849, ii 673, 
 
 V. M'NeU ii 406, 409, 411, 
 
 V. Mills i 
 
 V. Robertson i 
 
 V. Smith i 
 
 Eobetaile's Cases i 192, 432, 
 
 Robey V. Howard i 
 
 Robinson v. Batchelder i 
 
 V. Blakeley ii 
 
 V. Bullock ii 
 
 V. Clifford ii 254, 363, 480, 
 
 V. Craig ii471, 
 
 V. Crandall ii 
 
 V. Cropsy ii 
 
 V. Fisher i 
 
 v. Howes ii 
 
 V. Jones ii 173, 
 
 V. Morgan i 
 
 V. Nahon i 
 
 V, Neal 12.9, 49, ii 
 
 V. Prescott ii 186, 189, 
 
 v. Stewart • i 
 
 V. Ward's Bx'rs ii 197, 198, 
 
 V. Weeks ii 
 
 V. Whitley : ii 
 
 V. Wiley ii 
 
 Ex parte ii 
 
 Robinson's Adm'rs v. Devone i 
 
 Eobison v. Eaton ii 
 
 Robson V. Alexander i 
 
 Roche V. O'Brien i 690, 691, 
 
 Eochell ads. Holmes ii 516, 561, 
 
 Rochelle's Heirs v. Bowers ii 
 
 Rochester v. Anderson 1 
 
 City Bank V. Snydam i 
 
 V. Toler ii 
 
 Rockfeller V. Hoysradt i 
 
 Rockhold V. Barnes ; 
 
 Rodgers v. Kneeland ii 
 
 Rodman v. Forman .} 
 
 V. Henry ii 
 
 v. Hoop's Ex'r 1382, 
 
 Vol. I. 
 
 938, 941 
 
 Rodwell V. Redge i 606 
 
 Roe V. Clayton i 611 
 
 V. Greenfel i 610 
 
 V. Harvey i 615, ii 636 
 
 ex dem. Pellett v. Ferrars i 668 
 
 Rogers v. Berry i 8, 603 
 
 V. Briley i 4 
 
 V. Coleman ii 188, 1E7 
 
 V. Colt 1 4';l 
 
 V. Dare ilil 
 
 T. Dibble 1 ICO 
 
 V. Estia i 847 
 
 V.Goodwin ii 801 
 
 V. Haines ii 10, 11 
 
 V. Jackson „; ii 257 
 
 V.Jennings .; i il 875 
 
 V. Jones i 323, '405, ii 166, 167 
 
 V. K. and P. Railroad Co ii lOCl 
 
 V. Moor i 379 
 
 V. Mnlliner ii 147, 151 
 
 V.Murray ii 701 
 
 V. Old i 383 
 
 V. Pitcher i 468 
 
 V. Rogers ii 131, 812, 919 
 
 V. Shaler ii 612 
 
 V. Van Hoesen ii 626, 534, 816 
 
 V. Wilson i 412, 734, 768 
 
 V. Wood ii 65 
 
 Rogers' Case ii 273 
 
 Rogerson v. Neai ii 616 
 
 Roget's Case ii 942, 976, 9f0 
 
 Ronun v. Hanson i 8S0 
 
 Rohrer V. Morningstar i 29, 52 
 
 Roll V. Raquet ii 674 
 
 Romayne v. Duane i 687 
 
 Romig V. Romig i 404 
 
 Ronkendorf v. Taylor's Lessee ii 296 
 
 Roop V. Brubacker i 746 
 
 Roosevelt v. Carow ii 661 
 
 V, Gardinier i 806 
 
 V. Mark i 688, 689 
 
 Root V. French 1 769 
 
 V. King i 746, ii 276 
 
 V. Lounds i 7H 
 
 V. Puff ii 7S5 
 
 Roper V. Bartholomew ii 704 
 
 Rosav. Brothereon ii 6':4 
 
 Roacarrick v. Barton i 6t 
 
 RoBcoe, Ex parte ii 8X7 
 
 Rose V. Bakemore ii 9<8 
 
 V. Bartlett il 7S2 
 
 V. Himely ii 171, 177, 194 
 
 V. Kllnger i 662 
 
 V. Lamed ii 675 
 
 V. Oliver 149, 853 
 
 V. Rose ii 658 
 
 V. Turnpike Co Ii 387 
 
 Roaeboom v. Billington 14, 364, 403, 406, 677 
 
 V. Moaher i 732 
 
 Rosenberger v. Biting 1 385 
 
 Rosevelt's Case ii 935 
 
 Rosevelt v. Fulton 11700, ]0( 6 
 
 V. Post 1 6'. 
 
 V. Stackhouae ii 666, 61 9 
 
 Ross V. Anstill 1 6J5 
 
 V. Bank of Burlington i 1! 2 
 
 V. Barker ii 311 
 
 V. Bedell 11 4: 6 
 
 V. Bruce .• ii 641 
 
 V. Bughler i 8 
 
 V. Clore ii 583 
 
 V. Darby i 675 
 
 V. Gould 1 810, 812, ii 505 
 
 V. Knight 1 389 
 
 V. M'Clung ii 687, 683 
 
 v.Norvell ii 649, 698 
 
 V. The State ii 113 
 
 V. Winners i 81 
 
 V. Woraop .1698 
 
 Ross' Lessee v. Cuthshall ii 301 
 
 V. Eason Ii 1009 
 
 Rossiter v. Downs 1 865 
 
 V. Marsh i 867, 863 
 
 Roth V. Enniskillen (Earl of; 1176 
 
 V.Miller i 745 
 
 V. Palmer 1 825 
 
 Rothmabler v. Myers ii 749, 763, 753 
 
 Rothschild T. Schuberth 1 612 
 
 Rounds V. Baxter 1 696 
 
 Rouae v. Whited 1 416 
 
 Rousseau v. Henderson Ii 868 
 
 18a 
 
CXXXVUl 
 
 TABLE Olf CASES CITED. 
 
 Kowan v. Merritt i 808 
 
 Rowcrolt V. Bassett i 138 
 
 Howe V. Brenton i 335, 441, 646, il 69, Tl, 880 
 
 r. Greenfll i 610 
 
 V. Howden il 336 
 
 T. PMllips i 861 
 
 V. Smith i392,ii31, 210 
 
 - Eowlac v. White i 182, 186 
 
 Eowlanfl v. Ashley i 688 
 
 V. Best i 690 
 
 V. Dowe i 742 
 
 V. Veile il 366 
 
 V. "Walker i 182 
 
 Eowletts v.. Daniel ii 584, 588 
 
 Eowley v. Ball ii 565 
 
 Eowt'B Adm'r v. Kile's Adm'r. . i 736, 11 613, 618, 1004 
 
 . Eoxbury v. Huston '. i 072 
 
 Eoy V. Targce .■ i 732 
 
 Eoyce V.Burt 1147,124 
 
 Eoyston v. Howie 1 465 
 
 Euanv. Perry .- i 769 
 
 Eucker v. 'Harrison 11 376 
 
 T. Pasgrave 1 789 
 
 Euckman v. Cowell i 747, 748, 11 339 
 
 Eudd v. Hanna I 810 
 
 V. Johnson i 605, 611 
 
 V. Thomas 11 1000 
 
 Endesill v. Lesesene 1 786 
 
 Euggles V. Alexander i 388, ii 124, 254, 353, 360 
 
 V. Bricknor ii 845 
 
 V. Ives ii 369 
 
 V. Lamson 11 661 
 
 V. Patten 1 852 
 
 V. Sherman 1 785 
 
 ' Eiigley v. Davidson 11 674 
 
 -Euloff V. The People i 532 
 
 Eumbold v. Eumhold i 695 
 
 Eumsey v. Leek ii 407, 408 
 
 V. Lovett 1759, 773 
 
 Euuey v. Edmunds 11 701 
 
 Eundle v. Beaumont ii 286, 326 
 
 v. Ettweln ■ i 482 
 
 Eundler v. Jordan 11 72 
 
 Eushv. Smith ii 896 
 
 Eushforth v. Hadfleld 11 729 
 
 Eushworth v. Craven ii 288 
 
 V.Wilson 11813 
 
 Eusk V. Sowerwine i 8, 11 595 
 
 EuBsell V. Allen 11 134 
 
 V. Coffin 11 461, 503 
 
 V. Conn i 874 
 
 V. De Grand 11 674, 684 
 
 V. Frlsbee 1186 
 
 V. Guy .... ii 288 
 
 V.Hudson E. E. E. Co ii 678, 918 
 
 v.Eogers 11652,672 
 
 V. Schuyler i 259 
 
 V. Scott i 657 
 
 V. South Britain Soc i 849 
 
 V. Stocking 1646 
 
 V. Woodward i 609 
 
 Bust V. Boston Mill Corp i 663, ii 297 
 
 V. Frothingham :, '. ..ii 168 
 
 Eutland Bank V. Thrall 11 134 
 
 Eutland (Countess) Case of. ii 644 
 
 Eutton V. Button 1 680 
 
 Eyckman v. Delavan i 827 
 
 V. Haight 1 805 
 
 Eyder V. Malbon 1871 
 
 Eyer v. Atwater il 4, 9, 22 
 
 Eyerss v. Wheeler .■ ii 72] 
 
 Eymer v. Cook i 440, 500, ii 886 
 
 Eyves v. Braddell 11 668 
 
 S. 
 
 Sabin v. QUman 11 80 
 
 Sackett v. Andross ii 158 
 
 V. Sackett i 680 
 
 V. Spencer i370, 785 
 
 Sacridev v. Beers i 654 
 
 Saddler v. Houston 1 88 
 
 V. Murrah 11 890 
 
 V. Slabaugh 11 124, 127, 134 
 
 Saffordv. Lawrence i 29 
 
 V. People i 180 
 
 , V. Stevens , . . . i 739 
 
 V. Wyckoff 1 698 
 
 Sage V. Miudleton Ins. Co , 11 826 
 
 Salem Bank (The) v. The Gloucester Bank .'1460, 403 
 
 Sales' Case 1 tjS8 
 
 Salisbury V. ConnoQticut Ii 59 
 
 Sallours V. Guiling 11 404 
 
 Salmon v. Feinour. ii B97 
 
 T. Eance.. 11301,384, 884 
 
 Saloucl V. Woodmas ii 176 
 
 Salter v. Kirkbride i 870 
 
 V.Tobias 1 582 
 
 SaltUBv. Genin i 829 
 
 Saltonstall's Case 11932 
 
 Salucciv. Johnson ii 176 
 
 Sample V. Boot ii 201 
 
 Sampson v. Hart 11 20 
 
 V. Overton il 355, 443 
 
 V. Sampson ii 703 
 
 Samuel v, Bond .^. i 734 
 
 V. Withers 1391,393,11383 
 
 (The) 11844 
 
 Sanhom v. JlfeilBon i 181, 430 
 
 Sanders v. Hamilton ii 8, 9 
 
 V. Leigh i 376 
 
 V.Meredith i 676, 677 
 
 V. Palmer 1 857 
 
 Sanders' Case ii 722 
 
 Heirs v. Buskirk ii 116 
 
 Sanderson v. Closse. i 692 
 
 V. Jackson ii 742 
 
 V. Nestor ii 110 
 
 Sandford v. Bnrrell ii 848 
 
 V. Bennett i 166 
 
 V. Eighth Ave. E. E. Co 1 811 
 
 V. Handy i 188 
 
 V. Hunt , 1 747 
 
 V. Nichols ii 152 
 
 v.Eemlngton > i 131 
 
 V, Sajidford ii 186 
 
 Sandwell V. Sandwell 11918, 920 
 
 Sanford v.Chase 11821, 823 
 
 V. Eackes ii 741 
 
 v.-Sanforfl i 186, 97 
 
 V. Washburne 11 700 
 
 Sargeant v. Pettibone i 378, 379, 383 
 
 et al. V. Southgate i 332 
 
 Sargent v.. Ballard. i 651 
 
 V. Dennis i 872 
 
 V. Towne ii 719 
 
 V. -.-i 168 
 
 Sarlesv. Hyatt ii 997 
 
 Sartorius v. State ii 887 
 
 Saul v. His Creditors ii 108 
 
 Saunders V. Hord i 679, 702 
 
 V. Newman i 654, 655. 656 
 
 V. Pittman ii 864 
 
 Savacool v. Boughton ii 139, 147, 151, 154, 363 
 
 Savage V. Davis 1 748 
 
 V. Gulliver ii 999 
 
 V. Murphy 1 197, 320, 343 
 
 V, Smith 1 840 
 
 Savery V. Spaulding : i 203 
 
 SavjUe V. Parnam i 712 
 
 Sawry v. Murrell ii 975 
 
 Sawyer v. Adams ii 588 
 
 V, Baldwin ii 298 
 
 V. Maine Fire Ins. Co il 176 
 
 V. Merrill 135,54,11876, 975 
 
 V. Murrell ii 988 
 
 V. Proctor i 379 
 
 et al. V. Steele. i 593 
 
 Sawyer's Lessee V. Shannon ii 164 
 
 Saxton V. Boyce i 4 
 
 V. Chamberlain ii 81, 83 
 
 V. Johnson i 842, 867 
 
 V. Nimms 11288, 367, 369 
 
 Sayer v. Garnett - 1 6 
 
 Sayer'e Case , i no 
 
 Sayre v. Eeynolds '. ! ^ ! !i 606 
 
 Scanlan v. Cowley i 76I 
 
 V. Wright 11687, 773 
 
 Schanber v. Jackson 1 660, 665, 668 
 
 Bchnppert v. Glllraan ii 640 
 
 Scheiick V. Corahen 1 43 
 
 V. Dart ii 81 
 
 V. Hutcheson i 42, 190 
 
 V. Warner i 301. 382 
 
 Schermerhorn V. Negus.. 1474,11 676 
 
 V. Schermerhorn 1 30, 46, 403 
 
 V. Tripp il 149 
 
 V. Vanderhyden J..ii 666 
 
 V. Van Volkenburgh 1 603 
 
 Scliillinger V. M'Cann ii 656 
 
 Sohlatterv. Elter... 1 745 
 
 Schloiickor V, Moxer H 89"! 
 
 Schmidt V, Blood i 605 
 
TABLE OF CASES CITED. 
 
 cxxxix 
 
 Schmidt v. Livingston ii 699 
 
 V. Quin i 3S3 
 
 Schnertzell v. Young ii 355, 443 
 
 Scliooling v. M'Gee i 483, ii 64 
 
 Scliooixer Reeside ii 726 
 
 Schoonmaker v. Boosa ii 673 
 
 Scliroeppel T. Coming 1690. 825 
 
 Sclraltz V. Halsey i 1G6, ii 414 
 
 V. Lindeli i 785 
 
 v. Pulver il 88 
 
 Schnmaclc.v. Lock i 511 
 
 ScUnman v. Weatlierhead ' ii 19 
 
 Schnreman v. Palmer i 182 
 
 Schuyler v. Eusb .' ii 721, 758 
 
 V. Van Depveer ii 402, 404 
 
 Schuykill Nav. Co. v. Diffeback i 34 
 
 Scoby V. Blanchard ii 657, 701 
 
 Scott v.. Blanchard 11424, 4?5 
 
 ' v. Burch'8 Adm's 1 693, ii 82, 100 
 
 V. Cleveland 11 189, 422, 511 
 
 V. Coleman 1 321, 3S7, ii 186, 188 
 
 V. Cox's Adm'rs 1 836 
 
 T.Crane ;,.. 1514, 615 
 
 V. Dorsey's Ex'ret ii 81 
 
 V. Doualass ii 574 
 
 V. Gallagher i 686 
 
 V.Hancock /Iv u 80 
 
 V. HuU 1810,817, 820 
 
 V. Lewis ii 674 
 
 V. Lllienthal 1 785 
 
 V.Lloyd 1 127, S3 
 
 V. M'Lellan 1 183 
 
 V. Elvers 11 688 
 
 V. Seller ii372, 877 
 
 V. Sheakley 11 719 
 
 V. Shufeldt 11 01 
 
 V. Simpson i 449 
 
 V. WilBams i 603, 822 
 
 V. Wilson i 610 
 
 V. Woodward ii 881 
 
 V Young 11 64 
 
 Scott's Bx'rs V. Oaborne ii 705 
 
 Lessee v. Leather 11 587 
 
 V. Eatcliffe i 204 
 
 Scotton V. Scotton ii 706 
 
 Scoville V. Griffith ii 665 
 
 Scrlmshire V. Scrimshire 1631, 11179 
 
 Scrngham V. Wood il662, 663 
 
 Scull V. Wallace Er'rs 1404, 405 
 
 Seaborn V. State 1 637 
 
 Sealgrove V- Eadman 1379 
 
 Seaman v. HOgeboom ii 709, 714, 755, 786 
 
 V. Low : 1 806, 825 
 
 V. Price i 825 
 
 V. Vawdry ;■. . . i 694, 507 
 
 V. Ward ii 34 
 
 Seaman's Friend Society v. Hopper 1 60"! 
 
 Sears v. Billlngham i 29 
 
 V. Shafar 1 691 
 
 Seaton v. Benedict i 789 
 
 V. Cordray ii 359 
 
 Seaver V. Eohinson 11 821 
 
 Seay's Heirs v. Walton : ii 773 
 
 Sebreev. Dorr i 868, 11 511 
 
 Secor V. Low 1620 
 
 V. Sturgis 1185,26, 33 
 
 Seddon v. Tutop...: .ii21, 412 
 
 Sedgwick V. Cleveland rt. 11 15 
 
 Seed V. Bradford ; ii 705 
 
 Seekright v. Bogan i 32, 11 518 
 
 Seeley v. Engell i . - 1 98 
 
 V. Eugla ii 668, 873 
 
 V. Hudson E. E. E. Co i 215 
 
 Seeright v. Craighead 1 491 
 
 S-elby V. Gnnby .ii 81 
 
 V. Hills ii 821, 822 
 
 Seldeu v. Delaware and Hudson Canal Co 1 643 
 
 Selectmen of Bennington V. M'Gennes 1 35 
 
 Sellnv. Snyder ; ....i 189, ii 80, 158 
 
 Sellen v. Norman i 603 
 
 Sellers v. Carpenter 1 653 
 
 Selllck V. Adams 11 84, 404, 409 
 
 V. Brown ii 148 
 
 V. Starr i 663 
 
 SeUy V.Clark ii 293 
 
 SeiwoodT.Mlildmay 11752, 762 
 
 Semple v. Bird •■ i 685 
 
 Senatv. Porter il 420 
 
 Senior v. Armytage ii 792 
 
 Sentleger v. Chartres i 698 
 
 Bentneyv. Oyertoii ii 493 
 
 Serapum v. La Croix ii 131 
 
 Sergeant v. IngersoU i 201, 385 
 
 V. Pettlbone .ii 813 
 
 V. Eeed ii 733 
 
 et al., Cjse of 11 114 
 
 of Court of Appeals v. George ii 368 
 
 Sergeant's Lessee. y. Biodle ; ii 844 
 
 Sergent V. Essex EaUw. Corp i 483 
 
 Serjeant v. Holmes ii 117 
 
 Service v. Heermance 11 148 
 
 Sessions v. Barfleld ii 669 
 
 V. Gilbert ii 663 
 
 Seton V. Delaware Ins. Co ii 431, 433 
 
 V. Slade 1 696 
 
 Settle V. Allison i 332, ii 347, 427, 464 
 
 Sewall V. Gibbs ii 726, 
 
 V. Eussell ii 549 
 
 Sewell V. Bridge 1 700 
 
 V. Parker 1 762 
 
 V. Stubba..., ilOS, ii 512 
 
 Sexton V. Brock 11 895 
 
 V. Pickering ii 688 
 
 Seymour V. Beach , 1 4 
 
 V. Delancey 1667, 698,11 667 
 
 V. Mintum : i 475 
 
 V. Van Slyck i 605 
 
 V. Van Wyck il 508 
 
 Kecaiver v. Wilson i 471, ii 367 
 
 Seymour's Adm'r. v Beach 14, 126, ii 462 
 
 Shackiaford v. Purkat ii 401, 408, 410 
 
 Shaddick's Case ii 813 
 
 Shadvpell v. Hutchinson ii 85, 113 
 
 Shaeffer v. Kreitzer ii 361 
 
 V. Landis 11 1001 
 
 Shaferv. State i 96, 589 
 
 v. Stonebreaker ii 36, 40 
 
 Shafterv. Eichards....- ii 211 
 
 Shaffer V.Snyder 11276 
 
 Shaltar V. Brand 1409,412,11586 
 
 Shambm'gh V. Coipmagera i 125 
 
 Shankland v. Corporation of Washington ii 691 
 
 Shanks V. Eenwick i 4 
 
 Shannon v. Commonwealth 11 875 
 
 Sharp V. Blngley .1 586 
 
 V. EccJes i 483, ii 919 
 
 V. Lamb ii 520 
 
 V. Lipsay ii 669, 696, 7?^ 
 
 V. Morrow 1 31 
 
 V. Mayor, &c. - 138, 188 
 
 V.Pratt ii 146 
 
 V. Sharp ...11334, 697 
 
 V, Smith ■ . .1 201, 333 
 
 V. Spier 11137 
 
 V. Thatcher , i 29 
 
 V. United States Ins. Co 11 285 
 
 V. Wickliffe ii 588, 865 
 
 Shaver v. Bhle 1426, ii 469 
 
 V. Kadlay 1687,11701 
 
 Shaw V. Broom i 328, 331 
 
 V. Levy 1 375, 376 
 
 v.Lord il 749 
 
 V. Markham 11 645 
 
 V. Staughton ii 86 
 
 V. Stine i608, 785 
 
 V. Wallis 1 128 
 
 V. Wriglay '. i 857 
 
 Shaw's Case i 706 
 
 Shaaff V. Seventy Hogsheads ii 177 
 
 Shearer v. Clay i 253 
 
 Shed V. Shed ii 661 
 
 Shaehy v. Mandeville i 862, 868, ii 134 . 
 
 Sheeky v. Prof. Life Ins. Co 11 808 
 
 Shaalar v. Spear ii 889, 898 
 
 Sheets v. Hawk ii 19 
 
 Sheffield V. Mulgrave ; 1696 
 
 V. E.&S.E. KCo 11907 
 
 V. Sheffield i 541 
 
 Shaftall'B Adm'r v. Clay's Aflm'r 1 483 
 
 Shaidv. Stamp ii 681 
 
 Shelby v. Governor i 308 
 
 V. Smith's Heirs 1 33 
 
 Sheldon v. Atlantic Fire & M. Ins 11 647 
 
 V. Benham i 755, 612 
 
 V. Buchanan 1 349 
 
 V. Capron 11 679 
 
 V. Clark i 823 
 
 V. Frink ii 359 
 
 V. Hopkins ii 189, 190, 196, 274, 433 
 
 V. Payne , . . . . i 521, jl 388 
 
 V. Stryker. ii 261, 691 
 
 V. Yan.Busljirk. ii 139 
 
cxl 
 
 TABLE OP CASES CITED. 
 
 Sheldon v. Van Slyke 1 334 
 
 v. Wood i 835, ii SIT 
 
 V. Whittaker 1866 
 
 T. Wrigllt 1 611, 11 80, 33D, 473 
 
 fihelUtoe v. Horsefall 1 676 
 
 Shelly V. Nash 1 694 
 
 Bhslmaker v. Thomas 1 508 
 
 Shelton v. Alcox 11 408, 410 
 
 V. Barbour .-. 11 13 
 
 et al V. Braithewate 11 742, 761 
 
 T. Cocke 1 498 
 
 V. Livlue 11 679 
 
 V. Shelton • 11 707, 719 
 
 ads. Cureton 1182, 133 
 
 Schenck v. Hutcheson 1 190 
 
 Shepard T. Eowe 11 373 
 
 V. Eyera 11 409 
 
 Shepard'B Bx'rs. v. Cook's JEx'rs 1 862 
 
 Shephard v. Little 1 477, 685, 11 666 
 
 Shepherd V. Currle 1 676 
 
 V. Goss 11 494, 506 
 
 T. Lloyd 11 321 
 
 V. M'Evers 1 609 
 
 T. Murdock 1 679 
 
 V. Temple 11 670 
 
 T. Thompson 1 222 
 
 V. Watrous 11 405 
 
 V. Watson 11650 
 
 T. ■Willis 1 786 
 
 Shepherd's -Heirs V. Totmg 1 699 
 
 Shepley v. Waterhouse 1 491 
 
 Sheppardv. Glddings i 6, 11 662 
 
 T. Hamilton 1 463 
 
 V. Sheppard 11 148 
 
 V. Willis 11 219 
 
 Shergold v. Holloway 11 162 
 
 Sheriden v. Smith 1 390 
 
 Sherman v. Atkins 1 303 
 
 T. Ballon li 20 
 
 T. Crosby 1 178, 302, 508, 510, 813 
 
 V. Garfield i 823 
 
 V. Sherman i 137, 438, 700 
 
 Sherman's Lessee v. Dill i 391 
 
 Sherrill v. Hopkins 11 429 
 
 Sherrington v. Smith 1 690 
 
 Sherron v. Wood 11 405 
 
 Sherwood v. Burr i 656, 667 
 
 V, Mitchell 1 814 
 
 Shewell v. Pell ii 372 
 
 Sheweu v. Vanderhorst i 688 
 
 Shewn t. Barr il 347 
 
 Shied V. Stamps ii 681 
 
 Shielv. Kandolph 1 790 
 
 Shields v. Arnold 11 1010 
 
 V. Buchanan 11 583 
 
 V. Cunningham 11 900, 903, 975 
 
 V. Prlngle 1 677 
 
 Shelld's Lessee v. Buchanan 11 585, 688 
 
 V. Miller i 66, 11 907, 982 
 
 V. Stover il 301 
 
 Shilknecht v. Eastburn's Heirs 1 606, 610, 
 
 - 11 472 
 
 Shillaber V. Bingham 1372, 377 
 
 Shlnn V. Whipe 1 606 
 
 Bhinnie v. Coil 1 405 
 
 Shipbrooke (Lord) v. Lord Hitchingbrooke 1 700 
 
 Shipherd v. White 11 1006 
 
 Shippen's Lessee v. Wells ii 830 
 
 Ship Portland v. Lewis i 186, 192, 510, 516 
 
 Shirley V. Todd 1 333 
 
 Shirras v. Craig ii 647 
 
 Shitler v. Brewer 11 597 
 
 Shivers V. Wilson 1746,11105, 187 
 
 V. Shoemaker 1 698 
 
 Shoemaker V. Benedict 1 679 
 
 V. Kellog 1 385 
 
 Shoenberger v. Hackman i 568 
 
 ShoUy V. TJiller 11 76 
 
 Shortreede v. Cheek 11 741 
 
 Short Staple (The) i 608 
 
 Shortz V. Quigley ii 1003 
 
 3hotwell V. Murray ii 609 
 
 Showbridge v. Clark i 242, 11 804 
 
 Shrewsbury (Countess of) v. Earl of Shrews- 
 bury 1 608 
 
 V. Hart . .■: 11 297 
 
 Shrlver v. Cominouwealth 11 19, 80 
 
 Shropshire V. Stevenson 11 850 
 
 Shrowdars v. Harper 1 34, 11 517, 518, 633 
 
 Shrunk v. President, &c., S. Nav. Co 1 655 
 
 Shuat T. Taylor 1 693 
 
 Shudall V. Jekyll li 706 
 
 Shufeldt v. Kowley ii 812 
 
 Shumway V. Simons i 656, 657, 659 
 
 V. Stillman 11 136, 188, 196, 198 
 
 Shury V. Plggott 1 654 
 
 Shute V. Ogden 1 374 
 
 Shuttleworth V. Pilkington 1 866 
 
 Sias V. Badger 11 372,' 374, 377 
 
 Sibley V. Wafile 1 135, 474, ii 473 
 
 Slbson V. Pletcher 1 678 
 
 Sicard v. Cecil ii 566 
 
 Sicard's Lessee v. Davis 11 533, 662, 663 
 
 Sidewell v. Roberts 11 734 
 
 Sidney, Algernon, Tri«l of li 305 
 
 Sieur BoulTlerot de Vivantes (Case of) 1 264 
 
 Sigfried v. Levan 11 493, 601 
 
 Siglar v. Van Eiper i 857 
 
 Sigourney V. Drury i 491 
 
 v. Mann il 703 ' 
 
 Sikes V. Paine , 1 779 
 
 V. Eansom 11 1002 
 
 Silkworth's Case il 607 
 
 Silver V. Hesseltine i 846 
 
 .- v.Hendrick i850, 863, 867 
 
 Lake Bank v. Harding il 96, 186, 
 
 189 422 
 
 Simkinsv. Cobb 1182,116', 133 
 
 Simmons V. Law 1 640, 812 
 
 y. Parsons 1 126, 319 
 
 v. The State il 460, 468, 605 
 
 Simms v. Alcorn ii 860 
 
 V. Slacum il74, 96, 129 
 
 Simon V. Barber ii706, 763 
 
 Simons v. Monier i '^85 
 
 V. Payne ii 938, 989 
 
 Simonton's Assignees v. Boucher i 309 
 
 497, 499 
 
 Simpkins v. Eogers 1 332 
 
 Simpson v. Downing ii 1004 
 
 v. Hart ii 108 
 
 v.Henderson 11668, 724, 758 
 
 V.Hyatt 1 672 
 
 V. M'Million ii 119 
 
 et al. ads. Jeddes i 499 
 
 Sims^v. De Graflenreld 11 506 
 
 V. Given 1176,11873, 874 
 
 V. Kirtley 1 44s 
 
 iv. Kitchen ii 528 
 
 V. Lyle il 699 
 
 V. Meachum i 319, 11574, 575 
 
 V. Saunders i 326 
 
 V. Sims i 32, ii 518, 565 
 
 Sinard V. Paterson il 644 
 
 Sinclair V. Praser ii 183 
 
 V. Jtckson ii64, 65, 138, 647 
 
 V. Sinclair ii 179 
 
 V. Stevenson 11 922 
 
 Singleton v. Bremar li 502, 674 
 
 V. Millett 1 747 
 
 'v. Smith ii 653 
 
 Sinks V. English i 33 
 
 Sinnotv. Davenport ii 285 
 
 Sintzenickv. Lucas 1123, 46 
 
 Sipperly v. Baucus ii 448 
 
 Sisson V. Barrett ii 1013 
 
 Sissonsv. Dixon 1 606 
 
 Slvett V. Wilson i 660 
 
 Sizer v.^Burt 11883,1578 
 
 Skekling v. Warren i 120 
 
 v. Whitney ii 388 
 
 SkoUinger v. Howell 11 982, 983 
 
 Skelton v. Tomlinaon 1 42 
 
 Skett V. Whittemore ii 702 
 
 Skillern's Ex'rs v. May's Ex'rs ii 105 
 
 Skinnerv. Conant i 379 
 
 V. Dayton ii 471 
 
 V. Miller ii 682 
 
 V. Perot i 23 
 
 V. Eobeaon li 1000 
 
 V, Skinner i 700 
 
 Slrinnon v. Kelly ii 158 
 
 Skipwith V. Shirley ii 675 
 
 Slack V. Moss 1 127 
 
 V. Waloot 11 87 
 
 Slacum V, Simms ii 149 
 
 Slade V. Teasdale i 372, 11 87 
 
 Slasson v. DavlB 1 378 
 
 Slaughter V. Cunningham il 165 
 
 V. Haram 1 476 
 
 Slaymakerr. Bond ii 597 
 
 T. Qundacker'B Bs'rs 1 502 
 
TABLE OF CASES CITED. 
 
 cxli 
 
 Sleeper v. Van MidcHeworth .'.i 640 
 
 Slee V. Manhattan Co 1 679, ii 649 
 
 Siege V. Philips 1 46 
 
 Sleght V. Rhinelander 1 789 
 
 Sleight V. Hartshorne ii 627, 733 
 
 Sleyton v. Chester (Inhab.) il 370, 371 
 
 Sloane v. Ehle 1 B71 
 
 Slocum v. Marshall ii S9 
 
 V. Perkins i 428 
 
 T.Wheeler .1120,339 
 
 Slone V. Thomas 11622 
 
 Sluhy T. Champlln i 411, ii 493, 494, 505 
 
 Slttte V. Jennings i 491 
 
 Sly V. Finch j 11 373 
 
 Small V. Allen 11 6S6 
 
 v. Hodgden 11 S69, 370 
 
 T. Qnincy 11 666, 667 
 
 Smalley v. Anderson ii 863, 866 
 
 Smallman Y. Hamilton 1 683 
 
 Small wood t. Mitchell i 100, ii 287, 543 
 
 Smart v. Hnnt { fe'81 
 
 Smart v. Prujean 11 741 
 
 Smead V. Williamson 1 7S 
 
 Smete v. Williaros il 144 
 
 Smith T. Amis' Ex'rs i 477 
 
 T. Barber 142, ii 670 
 
 T. Barker .-^ 1848,11861, 868 
 
 V. Bartram 11433 
 
 V. Blagge 11 426, 428 
 
 T. Blandy u.i40o, '406, 539 
 
 V. Bonsall 11 75, 78 
 
 V. Bouchier 11 147, 151, 686 
 
 V.Brady 1517 
 
 V. Bromley 11682, 685 
 
 V. Brown i 476, ii 588, 663 
 
 T. Brush i 851 
 
 V. Bumam i 696 
 
 V. Cap t. ii 867 
 
 V. Carrlneton 11573, 1000 
 
 V. Case of Judge ii 275 
 
 V. Castles 11 850, 900, 939 
 
 T. Chamberlain 11467, 505 
 
 V. Cheatham i 168 
 
 T.Clarke 11 68 
 
 V. Clay i 688, 690, 701 
 
 T. Collins 11 301 
 
 V. Commonwealth i 552, 11 244, 860 
 
 T. Compton , 11 394 
 
 V. Coney 11771 
 
 T. Crooker ii 483 
 
 T. Cutler 11405 
 
 V.Daniel 11376 
 
 T. Darvers ii 704 
 
 v.DeWruitz 1328, 331 
 
 V. Dobson 11 863 
 
 V. Elder 11 431 
 
 V. Penner 1 316, 317 
 
 V. Fowle lilOS, 158 
 
 T. Frost 11 392 
 
 T. Goddard ii 667 
 
 T. Grant 11 1007 
 
 V. Gregory 1 739 
 
 V. Griffith 1 389 
 
 V. Hall . . .-. 11125, 407 
 
 V. Harrathy 1 410 
 
 V. Harris '.i 130 
 
 V. Hawthorn 11 545, 548 
 
 V. Henry 11 902 
 
 V. Helmer 11 390 
 
 T. Hicks 1 806, 806 
 
 T. Hiscock 11 673 
 
 T. Hoff 1177, 11 177 
 
 T.Hubbs i 127 
 
 T, Hunt i 418 
 
 V. Jackson 11 703 
 
 T. Johnson 11 23, 411 
 
 T. Jones 11 25, i 408 
 
 T.Kelly 11117,124 
 
 T. Lane.l 351, 379, 380, 382, 399, 586, 11 211, 921 
 
 V. Lehel i 808 
 
 V.Lewis 1128,186, 188 
 
 V. LevlnuB i 652, 732 
 
 T. Lorillard 1603, 646 
 
 V. Lowry :li28, 108 
 
 V. Ludlow 1496, 499 
 
 T. Lyons i 482 
 
 V. Mabry 11 463 
 
 V. Maine 1 301 
 
 V. Martin 1 844, il 518, 565, 588 
 
 V. Masten i 181 
 
 V, Mayo 11 674 
 
 Smith V. M'Allister 11785 
 
 V. M'Gowan 1 607 
 
 V. M'lver H 108 
 
 V.Montgomery's Adm'rs i 325. 603, 740 
 
 v. Morrow i 196, 405, 428, 11 335, 525 
 
 v.NowellB ....I. i 222, 
 
 T. N. y. C. E. B. Co i 640 
 
 T. New York Ins. Co 11 865 
 
 T. N. &L. E. Co 11 218 
 
 T.Palmer i 422 
 
 T. Parkhurst i 714 
 
 T. Peay i 384 
 
 v. Potter i 90 
 
 T.Powell : 1 186 
 
 T. Powers 1186,234,366, 301, 311' 
 
 V. Quinton 11 96 
 
 T. Ehoades 11 188, 196, 339 
 
 V. Elce V ii 20, 79, 80, 83 
 
 v. Eosewell 1 808 
 
 V. Salnsbury iiijiOO 
 
 V. Sanford i 380 
 
 V. Schenck .1 201, 305, 332 
 
 V. Scndder i 81 
 
 V. Sebrle 1 80S 
 
 V.Shaw 1145,161 
 
 V. Shaw .11 102 
 
 V. Sherwood 1122, 44, 46 
 
 y. Sinclair 11 674 
 
 V. Smith. . . . i 578, ii 89, 406, 463, 699, 700, 753, 
 
 773 
 
 V. Smith ii 95, 785 
 
 V. State 1289, 297 
 
 V. Stlckney 11 974 
 
 V. Steele il 687 
 
 V. SteinbackJ , 11 1009 
 
 T. Strong 11 444 
 
 T. Thompson Ii 1001 
 
 V. Tunno ■ 11 692 
 
 V. Van Loan 11 674 
 
 T. Van Nostrand 11 405 
 
 V. Walt i 464, 474 
 
 V.Walker i 223 
 
 T. Walton 11 598 
 
 V. Webster 11574, 575 
 
 V. Weeks il 19 
 
 V. Weeks (overruled in Binck v. Wood, 
 
 43 Barb. 316) 11 19 
 
 V. Whitaker 11430 
 
 V. White 1 4 
 
 V. Whiting 11 24 
 
 V. Williams 11 186, 665, 667, 672 
 
 V. Wilson ii 518, 525, 688, 726, 733, 787 
 
 V. Wright 1(728 
 
 V. Young ii 525 
 
 Adm'r, Sfc, v. Ludlow 1 746 
 
 & Dougherty's Cases i 770 
 
 Smith's Case 1 137, 7B9, ii 604, 864, 868, 870, 942 
 
 Ex'rs v. Eichardson i 677 
 
 Smock T. Graham 11 110 
 
 Smoot's Adm'r t. Bnnbury's Ex'r 1 873 
 
 Smothers v. Mudd i 314, 260, ii 499 
 
 Smyth V. Banks 11 821 
 
 V. Hawthorn ii 549 
 
 V. Lehle : i 808 
 
 Snavelyv. M'Pherson 1346,349, 361 
 
 Snelder v. Geiss i 40 
 
 Snell T. Allen i 526 
 
 V. Faussatt 11 177 
 
 V. Moses i 398, 425, 751 
 
 Snellgrove v. Hunt i 852 
 
 V. Martin i 839 
 
 Snelling V. Utterback 1462,11701 
 
 V. Watrous 11 820 
 
 Snider v. Croy 11 21 
 
 Snodgrass V. Branch Bk. at Decatur i 679 
 
 Snow V. Frankleyn ii 693 
 
 V. Peacock 1 218, 592 
 
 Snowden v. Phcenlx Ins. Co 11 1009 
 
 V. Warder ii 728, 730, 731 
 
 Snowhill T. Hlllyer 11 109 
 
 Snyder v. Bowman ii 301- 
 
 T. Snyder i 893 
 
 V. Wolfley etal 134, 497 
 
 Snyder's Lessee v. Snyder ii 20, 80, 84, 646, 888 
 
 Society for the Propagation of the Gospel, &c., 
 
 v. Pawlett ' 1 746 
 
 Society for Propagating the Gospel, &c., v. 
 
 Young i 666 
 
 Solarte V. Palmer ii 549 
 
 Solita V. Yarraw ii 611 
 
 SoUers v. Lawreuce et al i 823 
 
cxlii 
 
 TABLE 01" CASES CITEB. 
 
 Soloman v. Evans i ti^, il 660 
 
 Solomon v. Harvey i 748 
 
 V. Kimmel i 482 
 
 V. Jesaiman ii 401 
 
 V. trnderhill ii 868 
 
 Solomons v. Bank of England i 811 
 
 V. M-'Kinstry ii 402 
 
 Somers v. Balabrega. ii 40T 
 
 v. Moaeley ii 896 
 
 Somerville v. Hamilton i 8 
 
 V. Snllivan ii 500, 605 
 
 V. Wlmbish i 621, ii 340, 341 
 
 Somes V. Skinner '..l 749 
 
 Sommerville v. Stephenson ii 606, 668 
 
 Sonv. The People ii 220 
 
 Sontier V. Kellermen ii 790 
 
 Soperv. Veazie ;.i 385 
 
 Sonlden V. Cook 1 690 
 
 V. van Eenaselaer ii 1001 
 
 Sosith V. Tanner i 863 
 
 Southard v. Eexford i 760, ii 940, 948 
 
 V. Steele ii 407 
 
 South Carolina Bank v. Myers ii 684 
 
 Society v. Johnson. . .ii 645, 719, 724, 
 803 
 
 Southcot V. Southcot i 683 
 
 Southerin v.M endum ii 520, 688 
 
 Southgate v. Montgomery ii 108, 126 
 
 South Sea Co. v. ■Wymondsell' 1 687, 690, 702 
 
 South wick V. Hayden i 579, 587, ii 564 
 
 V. Stevens i 837, 838 
 
 Sonverbye v. Arden. 1 661, 663 
 
 Sonzer v. De Meyer j 684, 689 
 
 Spalding V. Brent :i 471 
 
 Spangler v. Eambler ■: ii 78 
 
 Spargo V. Brown 1 302 
 
 Sparin V. Drux ii 72 
 
 Sparrow V. Smith Ii 660 
 
 Spaulding V. Hallenbeck i 188 
 
 V. Vandercook ii 673 
 
 V. Vincent il 192, 347, 416 
 
 Spawn V. Veeder- i 802 
 
 Speake v. United States ii 483 
 
 Spear v. Coate i 225 
 
 V. Myers ii 883 
 
 V. Oakes i 672 
 
 V. Ohio i552, ii 244 
 
 Spedden v. The State ii 81 
 
 Speed V. Braxdell ii 61 
 
 Speers V. Bromlee 1 128 
 
 Spence V. Sanders : 1372, 376 
 
 V. State 1637,11 249 
 
 Spencer v. Babcock 11 709 
 
 V. Billing il 613 
 
 V. Brockway 11188, 201 
 
 V. Cohoon 11 4S3 
 
 V. Mid ii 691 
 
 V. Eoper 1 641 
 
 V. Sloo iil88, 191, 198 
 
 V. Spencer ii78, 666 
 
 V. Tllden 11 666 
 
 V. Tisue 1 93 
 
 V. ■WilliamB r ii 377 
 
 Spiers v. Clay's Adm'r -.1 477 
 
 V. Morris 1303, 330 
 
 V. Wilson il 611 
 
 Spooner v. Davis 11 44 
 
 Spoor V. Holland 1405,11364, 376 
 
 Spotawoodv. Dandridge 1685, 686 
 
 Spragga' Case il 640, 641 
 
 Sprague V. Bernard il 464 
 
 V. Kneeland 1827, 331 
 
 V.Mitchell 1 714 
 
 Sprattv. Spratt iil56, 2.59 
 
 Sprigg V. Preasley 1 326 
 
 Spring V. Lovett 1 126 
 
 V. Miller 1 070 
 
 V. South Carolina Ina. Co i 494, 506 
 
 Springer v. Peterson ' 11 1006 
 
 Springsteen V. Samson 11 804 
 
 Sprineatein v. Schermerhorn 1 671 
 
 Sproule V. Botta 1 83 
 
 Spurr V. Trimble 1 641 
 
 Spurrier V. Hancock 1 698 
 
 Squibbv. Hole 1156 
 
 Squire v. Harder 11 701 
 
 Squiresv. Whipple •. 1121, 47 
 
 Stabler V. Cowman 11456 
 
 Stablea V. Bley 1460 
 
 Staokhouse v. Barnston 1 684, 888, 690 
 
 Stackpole v. Arnold i 474, Ii 666, 670, 691, 749 
 
 Stackpoole v. Stackpoole i 474, 
 
 Stacy V. Graham 11905,912. 
 
 Stafiord V. Eice 1 
 
 V. Van Eenssaeler ■. 1 
 
 (Marquis of) v. Covney 1 
 
 (Lady). v. Llewellyn : 1 
 
 (Lord's) Case ..-. 
 
 V. Williams ii 
 
 Stage's Case , i 543, 555, 
 
 Stahl V. Berger il 483, 
 
 Stable V. Spohn ii 
 
 St. Albans V. Bush ii 186, 187, 
 
 Stalker v. Connecticut ■ 1 769, 
 
 Stamford Steamboat Co. v. Gibbons '- i 
 
 Stamper v. Griffin 11 906, 
 
 Stanberry's Lessee V. Nelaon. i 
 
 Standage v. Creighton 1194_, 
 
 Standard v. Williams ii 
 
 Standen v. Standen 11 722, 
 
 Standish V. Parker 11 43, 
 
 V. Eadley 1 
 
 Stanian v. Dalies i' 
 
 Stanley V. Addison 11 
 
 v. Chappell Ii 
 
 V. Kean 1179, 
 
 V. Milliard i 
 
 V. Stanley i 
 
 V. White i 197, 
 
 Stansfield V. Levy 1 
 
 Stanton v. Button ii 583, 685, 586, 
 
 v. Commonwealth li 648, 650, 
 
 V. Ellis :.. 11 
 
 V. Henry 11 
 
 V. Hodges ii 373, 
 
 V. Holmes li 
 
 V. Wilson 1 
 
 Stanwood V. Scovel 1 
 
 Stapleton v. Crofts 1 
 
 Star V. Bradford 1 
 
 The 11 
 
 Starbuck v. Murray 11 168, 188, 198, 
 
 Starett'a Lessee V. Chambers ■ 1 
 
 Staring V. Bowen ii 
 
 Stark V. Cannady ii 
 
 Stark's Adm'r v. Thomson's Ex'ra 11 
 
 Starke V. Littlepage ii 
 
 Starkie v. Woodward ii 19, 20, 60, 
 
 Starks V. People 11 971, 975, 
 
 Starkweather v. Loomia 11 123, 189, 
 
 Starr v. Anderson 1 
 
 v.EUis i 
 
 v. Knox 1469,11 
 
 V. Peck 1 
 
 v. -Scott ii 
 
 V. Starr ii 129, 
 
 V.Tracy ii 
 
 V. Trustees of Eochester ii 139, 144, 
 
 State V. Aaron i 532, 646, 550, 
 
 V. Adams 1 
 
 V. Alexander i 107, 209, 11 960, 951, 
 
 V.Allen ii599, 
 
 V. Annice 1 
 
 V.Anthony 1 
 
 V. Antonio i 
 
 V. Applegate ii 
 
 V. Arnold 1 297, 
 
 V. Atkins 1 
 
 V. Bailey ii 
 
 V. Barden 1 170, 
 
 V. Barrow i 3, 
 
 V. Benham ii 111, 112, 122, 
 
 V. Bennett 1 61, 634, 636, 637, 
 
 V. Blennerhassett 1 
 
 V. Blodgett 1 
 
 V. Boatwick 1 
 
 V. Boswell ii 952 
 
 V.Boyd 1 
 
 V. Bray 1 96, 
 
 V. Brown 1 
 
 ■ V. Brunson 160, ii 
 
 V. Buchanan ii 
 
 V. Bnrket ii 
 
 V. Caffoy i 
 
 V. Calvin 1 
 
 V. Cameron i 
 
 V. Candler 1 83, 11 181, 
 
 V. Carr 1 47, li 419, 
 
 V. Caeados 1 
 
 v.Catlin 11 
 
 V. Check 11 847, 664, 604, 
 
 V. Chltten; ii 
 
 121 
 685 
 661 
 670 
 953 
 473 
 556 
 503 
 975 
 197 
 770 
 611 
 964 
 
 33 
 199 
 114 
 764 
 
 45 
 68a 
 •822 
 517 
 402 
 461 
 
 653 
 818 
 
 474 
 404 
 374 
 86 
 88 
 867 
 177 
 
 480 
 701 
 108 
 686 
 172 
 981 
 422 
 464 
 60S 
 286 
 682 
 472 
 701 
 938 
 164 
 555 
 636 
 975 
 606 
 106 
 
 85 
 770 
 149 
 298 
 390 
 946 
 176 
 8 
 849 
 638 
 
 61 
 569 
 537 
 967 
 
 111 
 614 
 
 111 
 
 112 
 
 297 
 
 605 
 61 
 
 916 
 49 
 
TABLE 01" CASES CITBD. 
 
 Ciliii 
 
 V. 
 V. ( 
 
 V. 
 
 v.] 
 
 State V. Clark 1 785 
 
 T. Cochran ! ! . . i 888 
 
 T . Colerick ii 8, 9, 53 
 
 T. Collins ii666, 952 
 
 V. Colwell 917 
 
 V.Cooper '..i'is, i'si', 128 
 
 T. Coy il lU 
 
 v. Crane i 199 
 
 T. Crank ii 128 
 
 V. Damon ii 122 
 
 V. Davidson i 43 
 
 v.Dean... 56S 
 
 V. Deliesseline 11 130 
 
 v.DeWolf 1588,762,978, 11 981 
 
 V. DUl ii 814 
 
 ' V. Doherty ,...110, 16 
 
 V. Dore ii 960 
 
 V. Dove 11 960 
 
 V. Dupont 1 495 
 
 V. Edwards ii 929, 982 
 
 V. Evans ii 870 
 
 V. Earlsh 1 186 
 
 V. Fellows i 61 
 
 v.FerOTison ii 821 
 
 v. Fields et al 1 ^1, 545, 560 
 
 V. Foster i 60, 11 935 
 
 V. France i 845 
 
 V. Freeman 17, 167 
 
 V. Fuller i 24 
 
 V. Garrett ii 939 
 
 . Garrignes 11 HI 
 
 . George ■..: 11 960 
 
 . Grayton ii 361 
 
 . Green i 600 
 
 . Greenwell ii 126 
 
 . Gregory i 218 
 
 . Guild 1 522, 532, 543, 545, 551, 553, 
 
 556 
 
 . Gustln 11 525, 541 
 
 .Hall 11 HI 
 
 . Halloway j 19, 98 
 
 . Hamilton i 60 
 
 . Handy 11 500 
 
 . Hanuey i 890 
 
 ■. Hascall ii 384 
 
 ". Hasset i 61 
 
 ■. Hill 11 212, 224, 227 
 
 •. Hooper ii 606 
 
 ■. Ingles i 131, 127 
 
 '. Irwin 1 536, 536 
 
 .Isham 11346, 387 
 
 . Jackson 11429, 434 
 
 . Jenkins i 655, 634, 735 
 
 . Jennings 1 201, 332, 485 
 
 .Jim 1712, 975 
 
 .Johnson 11 142, 403 
 
 .Jones i 713, ii 301 
 
 .K ii 930 
 
 . Klmhrough 11 156, 525, 531, 541 
 
 .King ii 614 
 
 . La Bore 1 96 
 
 . Le Blanc i 11 
 
 . Lewis 11 870 
 
 . Little ; ii 115, 126 
 
 . Long 1 532 
 
 . Lull 11 893, 916 
 
 .Mairs 1 834 
 
 . March .11 900 
 
 .Martin U 845, 890 
 
 . Massey 11 81 
 
 . Mayson 1 845 
 
 .Mills 1 113 
 
 .M'Kee iillO, HI 
 
 . M'Lood 1 395, 571, 11 236, 975 
 
 . Monaquas i 290 
 
 . Moody i 290, ii 221, 239 
 
 . Mooney 1 112 
 
 .Moore i 555, 641 
 
 . Morris Ii 870 
 
 .Mosley 1 537, 565 
 
 . Newport 1 109 
 
 . Norns 11 987 
 
 . Norvell ii 112 
 
 .Odel 1770 
 
 . Osborn 1 569 
 
 .Parish 11 243 
 
 .Patrick 1 174 
 
 . Pearce 1 289 
 
 .Perkins i 438 
 
 .Perry ■ 11666,673, 688 
 
 . Pettaway 1 630 
 
 v.] 
 v.] 
 
 v.] 
 v.] 
 
 v.] 
 
 V. 
 
 Statav.Petty 1770, ii 606 
 
 V. Phelps 1 88, 384, 547, 669 
 
 v.PoIleta! , i291, 495 
 
 v.Pott^ ..1714,11525, 541 
 
 V. Powell, 1 189 
 
 T. Quarlps. 1 112 
 
 V. Bandojph 11 971 
 
 V. Eavelin 11 606 
 
 V. Bawles i 437, 11 504, 919, 921 
 
 V. Eidgely 1 23, li 181 
 
 V. JRiprey , i 206 
 
 v.Eoberts 1545, 553, 655 
 
 V. Eoswell 11-280 
 
 V. Eush 1 288, 267 
 
 V. Samuel 1 88 
 
 V. Scott i 182, 186, 199, 404, 11 162, 163 
 
 V, Shaw 1 110 
 
 y. Simons 1 205, 266 
 
 V.Simpson 11932,939, 946, 978 
 
 V. Sims 1149, 128 
 
 V. Black ...I 193 
 
 V. Smith 11 834 
 
 V. Sparrow 11 886 
 
 V. Spencer 1287, 604 
 
 y. Spurgin 11 111 
 
 V. Squires 1 146 
 
 V, Stade 11 432 
 
 V. Stallings ii 957 
 
 V. Stewart 11 813 
 
 T. Stran i 309 
 
 V. Tackett i 765 
 
 V.Taylor 1519,11 113, 115 
 
 V. . Thawley { 289 
 
 V. Thompson 1 547 
 
 V. Tilletson 11 112 
 
 V. fllgham 16, 209, 396 
 
 v.T'rum'bnll li 808, 839 
 
 V. Turner. 11 166 
 
 V. Tutt ii 606 
 
 V. Twitty 1 769, 770, 11 839, '431, 432, 979 
 
 V. Van Houston i 769 
 
 V. Van Houten 1 770 
 
 V. Vaignuir 1537,555,11243, 349 
 
 V. Vaiighan 1 61 
 
 V. 'Wakeley 11 139 
 
 V. Warner ii 112 
 
 V. Waterhouoe ii HI 
 
 V. Weai-e ii 669 
 
 V. Wehb ii 227 
 
 V. Wells 1 534, 763 
 
 V. Wentworth 1 548 
 
 V. Whisenhurst 11 872 
 
 V. Whitien 11 605 
 
 V. Wier 1 106, 11 943, 980 
 
 V.Wilson 187, 95 
 
 V. Winkley i 589 
 
 V.Wood i 834 
 
 V. Woodruff ii 111 
 
 V. Worthing i 85 
 
 V.Wright 11 138 
 
 V. Yancey 11 115, 123 
 
 V.To'rk 1548 
 
 V. Cellars i 765 
 
 State Baiik v.' Johnson 1 307, 309, '497, 601, 511 
 
 V. Seawell -. .1 214, 11 499 
 
 V. Wilson i 511, 513 
 
 of North Carolina y. Clark 1 604 
 
 V, M'Nell 1 404 
 
 State of Connecticut v. Sheppard 1 834 
 
 V. Walklns...: 1 741 
 
 v; Wilson 1 634 
 
 State Treasurer v. Oswald's Sureties 11 134 
 
 V. Wiggins 1 746 
 
 Stannton v.' "Wiggins 1 746 
 
 Stayton v. Moms i 471 
 
 St. Clair V. Jones 11 570 
 
 St. Clair's Heirs v. Shale i 301, 311 
 
 St. Devereanx v.' Much Dew Church 1 589 
 
 St. John V. Crael 11 253 
 
 St. John V. Dwight 11 144 
 
 St. Mary's Church . . ; ■. 11 468 
 
 Stead V. Salt 11 407 
 
 Stead's Ex's v. Crouse ii 473 
 
 Steamboat Clipper v. Logan 1 778 
 
 Stearns v.'Burnham 1186, 87 
 
 ■ t. Warner 11 1004 
 
 Btebbins v. Cooper 11 511 
 
 V.Eddy 11 698 
 
 V. Jennings li 298 
 
 .!.v. Sackett 1 lOO 
 
 Steel v. Cazeaux . .. ,' , U 185 
 
cxliv 
 
 TABLE 01" CASES CITED. 
 
 Steel V. Duncan i 348 
 
 Steel's Case i 536 
 
 Steele V. Adams 1477,685, ii 656 
 
 T. Barrier _ . .11 723 
 
 V. Curlew 11 457 
 
 V. Hoste 11 76B 
 
 V. Pkoenlx Ins. Co 1 33, 482 
 
 T. Worthlngton 11 656, 686, 690 
 
 Steen v. Ayleswortli 11 457 
 
 Steere v. Steere 11 698 
 
 Stedman v. PatcMn 11 40, 158 
 
 Stegall V. Wyche 11 74 
 
 Steigleman v. Jeffries . .^-rt i 745 
 
 Stem T. State 11 899 
 
 V. Stein's Curator U 263 
 
 Steinbaoli v. Cot Ins. Co il 933, 983, 1009 
 
 Steinbank v. BMnelander 1 119 
 
 Stelnkeller v. Newton 11 926 
 
 Stelnman v. Magnees 1 475 
 
 Stelnmetz v. Logan 11 301 
 
 Stephen V. State 1637,553, 11 243 
 
 V. The State 11 243 
 
 V. Westwood ; 11 446 
 
 Stephens v. Clements 11 264 
 
 V. Balrd 1 466 
 
 V. Jack 11 8, 50, 132 
 
 V. McNeill 1 732 
 
 T. People 11 2.35 
 
 V. Westwood 11 444 
 
 T. White 11 1009 
 
 Stephenson t. Bannister 11 425, 429 
 
 v. Higglnson 1 242, il 804 
 
 V. Stephenson 11 711 
 
 Sterling v, Blair ^ .11 749 
 
 V. Luckett 1 782, 738 
 
 V. Marietta, &c., Co i 488 
 
 V. Plalnfleld 11 429 
 
 V. Vaughan 11 662 
 
 Sterndale v. Hankinaon ; . . .1 691 
 
 Sterret v. Sleeve 11 701 
 
 Sterret's Case 11 822 
 
 Sterrltt'a Bx'rs v. Bull 1 376, 379, 381, 383 
 
 Stetson V. Kemoton 11 142, 143 
 
 Stevelle v. Greenlee -. ..1 377 
 
 V. Read 11 4, 10 
 
 Stevens v. Adams il377 
 
 V. Bigelow 1841 
 
 V. Bomar ii 428 
 
 V. Brown 11 371 
 
 V. Cooper ii 666, 693 
 
 V.Dunbar 1182,109 
 
 V. Gaylord 11 86, 763 
 
 V. Griffith 1 664, 11 588 
 
 V. Lockwood 11 121 
 
 V. M'lntlre 11 673 
 
 V. Mose 1 277 
 
 V. M'Namara ; 1 466 
 
 ■V. Palmer 11 474 
 
 V.Payne 1 21 
 
 V. People 11 223 
 
 V. Pinney 1 577 
 
 V. Elchards 1 373 
 
 V. Robertson 11 473 
 
 V. Stevens '.1 482 
 
 T. Vroman 1406, 411 
 
 V. Wlnship 1 747 
 
 Stevens' Bx'rs v. Smart's Ex'rs ii 189 
 
 Stevenson V. Buxton 1 697 
 
 y. Dunlap 11 487 
 
 Stewart v. Ahrenfeldt 1 475 
 
 v. Allison ,il 260 
 
 V. Cheatham ; 1 325 
 
 V. Hansom 1 183, 186, 201 
 
 V. Harrison 1 183, 186, 201 
 
 V. Huntington Bank 1 488, 738, 11 1002 
 
 V. Button 1 685 
 
 V. Igglehart 11 686 
 
 V. Keteltas i 617, 458 
 
 V: Lake 1 98 
 
 V. Lispenard 1 785 
 
 V. McNeill 1 732 
 
 V. NichollB i 678, 679 
 
 V. Reddlck 1 032 
 
 V. Scudder ii 789 
 
 V. Sherman (Inhab. of) i 407 
 
 V. Smith 1 696, ii 392 
 
 V. State of Ohio 11114 
 
 V. Swanzy.'. ii 416, 428 
 
 V. TheSt,ate ii 703 
 
 V. Trustees of H. College . . 11 295 
 
 V. Warner ii 171, 172 
 
 Stewart V. Wills 1215, 621 
 
 Stewart's Case 1 601 
 
 St. George v. St. Margaret 1 631 
 
 Stien V. Stien's Curator 11 384 
 
 Stiles V. Bradford 11 211 
 
 V. Hooker i 650, 656, 657 
 
 V. Rawlins 1 865 
 
 Still V. Halford 11 360, 414 
 
 V. Rood il 674 
 
 Stllle V. Lynch 1 123 
 
 Stlmmel V. Underwood 1 100, 11 873 
 
 Stinson v. M'Keown ii 648, 649, 699 
 
 V. Snow 11 371 
 
 St. Johnv. Turner i 680 
 
 Stockbridge v. Stockbridge 1 660, 11 362 
 
 Stockdale V. Buehby 11 771 
 
 Stockett V. Watklns Adm'r 1 178, 322 
 
 Stockhamv. Jones 1 49 
 
 V. Parr ii 761 
 
 Stocking V. Sage 1 379 
 
 Stockwell V. Coleman 11 189 
 
 V. Holmes 1 851 
 
 Stoddard v. AUen 11 186 
 
 V. Holmes 1 493 
 
 Stoddart v. Manning 1 4, 349, 11 938 
 
 V. Palmer 1 838 
 
 Stoddert V. Vestry, &c Ii 566 
 
 Stoever v. Whitman's Lessee.. 1 256, 669, 11 281, 356, 
 
 443, 729 
 
 Stokes V. Dawes 1257, li 136 
 
 V.Mason i 622 
 
 V. M'Klbben 1 468 
 
 v.Mowatt 11 892, 983 
 
 Stonardv. Duncan 1 4B6 
 
 Stone V. Bradbury 11 683 
 
 V. Byrne 1 680 
 
 V. Damon 11 266 
 
 V. Denny 1 188 
 
 V. Hayes i 456 
 
 v. Hooker 1816,11 8 
 
 V Hubbard 11604,617,755 
 
 V. Knowlton 1847, 849 
 
 V. Moody ii 108 
 
 V. Ramsay 1 462 
 
 V. Strand 1 259 
 
 V. Sprague 11 693 
 
 V. Swift 1 461 
 
 V.Vance 1 126,11 653 
 
 Stoner V. Ellis 1 607 
 
 Stones V. Byron or Bacon 1 166 
 
 Stoney V. M'Nell 1 482 
 
 Storer v. Freeman 11 720, 750 
 
 V. Logan 1122, 11 672 
 
 Storey V. Lovett 11 469 
 
 Storke V. Storke ii 752 
 
 Storrs T. Barker 1701,11 699 
 
 y. Wetmore 1501,11 938 
 
 Story V. Kimball 11894,895, 398 
 
 V. Perry i 872 
 
 V. Strettell 1 186 
 
 Stothart V. Burnett 11 108 
 
 Stoufferv. Latshaw 11674, 687 
 
 Stouffers V. C 1 685 
 
 Stoughton V. Baker 1 701 
 
 V. Lynch 11 698 
 
 Stonrton v. Meers 1 696 
 
 Stout v. Rassel 1 856, 11 946 
 
 V. Wood 11 274, 429, 874 
 
 Stow V. Converse 1 178, 751, 754 
 
 Stoycl v. Westcott 11 339 
 
 St. Paul v. Lord Dudley i 608 
 
 Stranger V. Searle 11698, 604 
 
 Stratford v. Marshall 11866, 866 
 
 V. Powell 1 695 ■ 
 
 v. Sanford 1 175 
 
 V. Sandford ii 891 
 
 y, Twyniim 1 693 
 
 Straughan V. Wright 1689 
 
 Streator v, Jones ii 649 
 
 Street v. Smith 1 672 
 
 Strieker v. Mott 11 164 
 
 Strickland v. Hudson 1 689 
 
 v.Ward 11157, 160 
 
 Strickland's Lessee v. Poole 1 249, 259 
 
 Strickler V. Todd 1190,656, 892 
 
 Strike V. M'Donald 11 60 
 
 Strike's Case ii 686 
 
 Striker v. Kelly 1 474, 11 187, 474 
 
 Stringer v. Young's Lessee 1 734, 11 782 
 
 Stringer's Case 1 700 
 
 Striugfellow v. The State i 537 
 
TABLE OF CASES CITED. 
 
 oxiv 
 
 Strode V. Chnrchill il 
 
 V. Rnssell ii 752, 
 
 Strong V. Benedict ; i 
 
 v. Blisa ii 
 
 V. Brewer i 
 
 V. Stewart ii'eis, 
 
 T. Strong 1483, ii 
 
 T. Tompkins ii 
 
 V. Wlieeler i 
 
 V. Williams ii 
 
 Stron?fellow v. State i 637, 543. ii 
 
 Strotlier v. Barr i 568, 
 
 V. Lucas ii 438, 600, 
 
 Stront V. Berry i 
 
 Strui;?le (Tlie) v. United States i 
 
 Strutt V. BoYingdon ii 
 
 Stujrt V. Binsse ii 
 
 T. Eissam i 
 
 Stub V. Lets i 
 
 Studebacker v. Moore ii 
 
 Studdyv. Sanders... ii 364. 381, 
 
 Stadstillv. State of G*rgia 1564,565, 1149, 
 
 Stultz V. Dickey ii 
 
 Stump V. Huglies ii 494, 
 
 V. Napier j 1 
 
 V. Roberts ^ . '., 1 
 
 StuTdivant'B Case ; ii 
 
 Sturgeon's Lessee v. Waugb i 
 
 Storges V. Beach ii 
 
 V. Maitland i 
 
 S turt v. MelliBh .' . , . ; 1 688, 
 
 Stortevant v. Orscr , 1 
 
 r. Slurtevant ii 647, 
 
 StntevilleT. Miles : 1 
 
 StuyveSant V. Dunhani ii 
 
 V. Mayorof N. T ii 
 
 V. Tompkins et al i 
 
 Styles V. Caldwell ii 
 
 V. Donaldson* i 
 
 Sulger V. Dennis Ii 
 
 Sallivan V. Magi 1 ii 
 
 V. M'Kean ii 
 
 V. Parke i 
 
 v. Stradling i 
 
 Sullivant v. Alston i 
 
 Sully V. Engle ii 674, 
 
 Summer v. Summer i 
 
 Summers v. M'Kim 1 
 
 Summerset v. Adamson i 582, ii 
 
 Sumner v. Child i 661, 
 
 V. First Parish ii 
 
 T. Glancey ii 
 
 V. Parker'. ii 20, 
 
 V. Steward i 
 
 V. Tileston 1654, 657. 
 
 Snrlott V. Fratt ii 
 
 Susquehannah BSdge & Bank Co. v. Evans.. ii 
 
 Sutphen v. Hardenturgh 1 
 
 Sutton V. Horn ii 
 
 V. Uxbridge .11 390, 
 
 Suydam V. Jones * ii 
 
 v.Keya iil32,146, 
 
 V. Moffatt i 
 
 T. Suydam • ii 
 
 Swain V. Cheney i370, 
 
 V. Stafford i 
 
 Swallow V. Beaumont 1 
 
 SwamsGott Machina Co. v. Walker ii 
 
 Sw^n T. Saddlemeyer ii 
 
 Swan's Ltoee V. Hughes ii 
 
 Swantou v. Raven 1 
 
 Swartz V. Moore 1 
 
 Swasey v. Vanderheyden's Adm'r ii 
 
 Swayze v. Hull ii 
 
 S wearingen v. Pendleton's Bx'x ii 
 
 Sweet V. Clinton (Overseers of) 11 
 
 V. Colgate i 
 
 T. Tuttle 1 391, ii 
 
 Sweeting v. Turner 1 
 
 Sweetzer v. Lovell ii 604, 
 
 SweigartV. Berk's Adm'r ii 
 
 V. Frey ii 
 
 v. Lowmarter ii 564, 
 
 Swett v; Green 1 
 
 Swick V. Sears ; ii 
 
 Swift V. Dean i 
 
 V. BdSon ii 
 
 V. Hawkins i 
 
 V.Perry ,. — i 
 
 V. Stevens 11518, 
 
 Swing V. Sparks 1378,379, 
 
 Vol I. 
 
 693 
 
 762 
 657 
 805 
 332 
 649 
 118 
 674 
 322 
 705 
 889 
 677 
 611 
 651 
 763 
 
 11 
 891 
 
 88 
 
 33 
 407 
 385 
 250 
 792 
 505 
 127 
 136 
 883 
 228 
 7 
 741 
 700 
 609 
 067 
 696 
 786 
 161 
 196 
 283 
 6B8 
 666 
 862 
 373 
 465 
 467 
 665 
 873 
 
 33 
 378 
 361 
 664 
 145 
 631 
 
 83 
 483 
 826 
 674 
 670 
 606 
 404 
 393 
 693 
 153 
 166 
 849 
 386 
 
 Swire v. Bell ii 492 
 
 Swisher v. Swisher's Adm'r ii 666. 684 
 
 Swisher's Lessee v. Williams' Heirs, ii 1)87 
 
 Sword V. Adams 11753, 755 
 
 Sykes V. Dunbar i 133, 166 
 
 Sylvester v. Crapo .. J' 11674 
 
 Syme v. Saunders ■ ,. i 468 
 
 Syme's Leasee v. Irvine ii 862, 865, 868 
 
 Symington V. M 'Linn ii 536 
 
 Symmona v. Mortimer i 701 
 
 Symonds v. Carr i 848 
 
 T. & E. R. Co. V. Kerr ii 345 
 
 Taber v. Bradley 1 658 . 
 
 V. Perrott ii 4 
 
 Tacketv. May 1 88 
 
 Taft V. Brewster ii 691 
 
 Tagiasco V. Molinari's Heirs ii 607 
 
 Tail V. Goodtitle ii 358 
 
 Talbot V. Clark i 100, ii 868 
 
 V. Cook i 483 
 
 V.David ..; 11274, 39r., 429 
 
 V. l^ebree's Heirs ii 68 
 
 V. Seeman 11428,431, 436 
 
 V. Simpson 11 683, 686, 688 
 
 V.Talbot i 4.38 
 
 Talcottv. Delaware Ins. Co ii 418 
 
 V. Goodwin ii 588 
 
 V. Wilcox 1 197, 327 
 
 Tallmadge V. East River B'k ii 7f5 
 
 Tallman V. Bigelow ii 147 
 
 V. Gibson 11673 
 
 V.White ii 474 
 
 Talman v. Emerson ii 471 
 
 V. Franklin.... ij 681 
 
 Taney v. Kemp ii 9:^8 
 
 Taniatry, Case of ii 7.30 
 
 Tanner v. Allison ii 90 
 
 V. Bean i f 39 
 
 V. Smart i 6C2 
 
 V. Taylor 11 918, H2O' . 
 
 Tannis V. St. Cyre ii 663 
 
 Tappan v. Brneu ii 134 
 
 V. Nutting ii 164 
 
 Tarleton v. Briafoe ii 190, 274 
 
 V.Johnson 1104,11873 
 
 V. Tarleton •. ii 9, 184 
 
 Tarrant's 1 .essee v. Terry i 460 
 
 Tarver V. Tarver , ii 77 
 
 Tasburgh v. Echlin i 681 
 
 Tate v. Austin 1 (ill 
 
 V. Greenlee's Adm'r i 683, t)84 
 
 V. Pariah 1656 
 
 V. Penne..; ... 1 264, 630, ii 660 
 
 Tatum's Bx'rs v. Lofton et al ii 938, 939 
 
 Taunton Bank v. Richardson 1 32, 841, ii 5l6, 517, 661 
 
 &c. Bankv. Whiting ii 617 
 
 Taw V. Berry: ii 662 
 
 Tawney v. Crother . . . '. ii 741 
 
 Tayloe v. Adrms , 1 686 
 
 V. Riggs ii 517, 634, 660, 673 
 
 Taylor v. Bank of Illinois 1 746, ii 432, 645 
 
 V. Bates 1 481 
 
 V. Beavers ii 765 
 
 V. Beck i 134 
 
 V. Blacklbw . . ; i 132, 138, 148 
 
 V. Boardraan 1 624 
 
 V. Briggs ii 728, 769, 787 
 
 V. Brooke 1 8.58 
 
 V. Bryden ii 186 
 
 V. Church i 166, 171, 6.33, 761 
 
 V. Dnndae ii 378 
 
 V. Porster i 1 37 
 
 V. Gilks ii 865 
 
 V. Glasser ii 455 
 
 V. Harris i 804 
 
 V.Hawkins i 351, 252 
 
 v.Heat" il 1-37 
 
 V. TIehderson i 498 
 
 V.Henry ii 259. 297 
 
 V. Herring i 448 
 
 V. Hickman i 847 
 
 V. Homan . . : 11 868 
 
 V. Horde i 610 
 
 V. King :..: ii 687 
 
 V. Knox's Heirs ii 68 
 
 V. Lawedn ,'.' ii 887 
 
 V. Luther i 126 
 
 v.MnrshaU 1 179 
 
 V. M' CrabKin iilia 
 
 19a 
 
cxlvi 
 
 TABLE OF CASES CITED. 
 
 Taylor v. Meekly ii 493, 501, 503 
 
 T. Moffatt ii 149, 389 
 
 T. Monnot 1 781 
 
 V. Moaeley ii 483 
 
 V. Phelps 1189, ISe 
 
 V. Boblason i 589 
 
 V. Bogera 1863 
 
 T. Savage 11 693 
 
 T. Shields ii 583, 588 
 
 V.Smith 11975 
 
 V. Sutherland 11 598 
 
 V. Swett 11 433 
 
 V.Taylor i 4 
 
 V. Teif 1 466 
 
 V. Trask 1 151, 153 
 
 V.Tucker 1385 
 
 V. Willans 1 735, 11 1003 
 
 V. ■WlUlama 1 858 
 
 Ex parte „ 11 281 
 
 ex dem. AtkynWv. Herd 1 610 
 
 Taylor's Adm'r v. Bank of Alexandria 433, 434 
 
 Ex'rs V. M'Donaia i 403 
 
 Teague v. Griffin 1 603 
 
 Teallv. Barton 1 785 
 
 V. Yan Wyck ii 493, 652 
 
 Temperly v. Scott li 210 
 
 Temple, Bx parte 11 821 
 
 Ten broeck v. Livingston i 663, 673, 694 
 
 Tenbroke v. Johnson 1 380 
 
 Ten Eyck v. Vanderpool 11 673 
 
 V. Walker 11 368, 376 
 
 Tennant V. Strachan li 868 
 
 Tenny v. Evans 1 485 
 
 V. Eiler 11 145 
 
 Tepton V. Harris 11 821 
 
 Terpenlng v. Skinner 11 640, 749 
 
 Terrlll v.^eecher 1 371, 375, 376, 378 
 
 V. Herron i 661 
 
 Territory v. Barrant 1 78 
 
 (The) V. Nugent ii 684 
 
 Terry v. Bleight i 604 
 
 V. Bufflngton ii 266 
 
 V. Chandler 1426,11 803 
 
 V. Huntington 11 139 
 
 V. Mayor of N. T 1 633 
 
 V. Wheeler -. 11 672 
 
 Tevis V. Tevls i 869, 11 401 
 
 Tewkesbury (BaillfiS of) v. Brlcknell 11 802 
 
 Texier v. Genin I 829 
 
 ThaUhlmer v. Brinokerhoff. .1 215, 478, 608, 510, 512, 
 
 686, 11 649, 573 
 
 Thames Man. Co. v. Lathrop ii 147 
 
 Tharpe v. Glsburne li 699 
 
 Thatcher v. Binsmore 11 674 
 
 V. Gammon's Ex'r 11 30 
 
 V. Goflf 11 699 
 
 v.MlUer ii 376 
 
 • V. Morris 1 843 
 
 V. Powell 11 105, 197 
 
 Thayer v. Boyle i 9 
 
 V. Mid. Fire Ins. Co ii 623, 625, 536 
 
 Thayer v. Stearns 11 148, 288, 369 
 
 Theriott v. Bagloll i 518 
 
 Theti'ord's Case 11 442 
 
 Thomas v. Beebe 1 38, 881 
 
 V. Bennett 1 683 
 
 V. Breedlove '. 11 146 
 
 V. Brockenborough 1 688, 690 
 
 V. Brown i 126, 139 
 
 V. Catheral i 89 
 
 V. Degraffenried 1 301 
 
 V. Denning 1 328, 482 
 
 V. Dyott 1 372 
 
 V. Ferqueran 1 29, 81 
 
 V. Fleury 1 517 
 
 V. Harding ii 533 
 
 V. Horlocker ii 618 
 
 V. Hubbell 1 308 
 
 V. Hubble 11 4, 41 
 
 V. Kinsley 1 393, 432 
 
 V. Murray 1 120 
 
 V. Mueser 11 433 
 
 V. Newton 11 930, 948 
 
 V. O'Hara 11 728, 733 
 
 V. Robinson 11 189, 190, 196, 374, 423 
 
 V. Roosa 1 843 
 
 V. Southard 11 171, 177 
 
 V. Stevens 11 769, 774 
 
 y. Tanner 1 746, 11 77, 418, 423 
 
 V. Thomas ... .1 178, 301, il 534, 760, 761, 762 
 v.Turvey 11 876 
 
 Thomas v. WUte 1 683, 685, 689, 691, ii 89 
 
 V. Woods .1 747 
 
 Thomas' Lessee v. Horlocker ii 480 
 
 Trustees v. Brashear ii 63 
 
 Thomassou V. Driskell ii 347 
 
 V. Tucker's Adm'rs 11 78 
 
 Thomequex v. Bell i 373, 375 
 
 Thommon v. Kalbach i 412, 418 
 
 Thompson v. Blair i 685, 688, 687 
 
 V. Blanchard i 44, 450, ii 982, 983 
 
 V. Brothers il 726 
 
 V.Bullock... 11476, 478 
 
 V. Catholic Soc. &c 1 825 
 
 V. Chandler i 608 
 
 V. Chauveau 1 515, 11 128, 344, 365 
 
 V. Clay il61, 63 
 
 V. Crocker i 653, -655 
 
 v. Crosthwalte 11 382 
 
 V. Gumming 11 1004 
 
 V. Faussat.... 1 475 
 
 V. Gray «. il 645, 660, 783 
 
 V. Halle .T ii 850 
 
 V. Hamilton 11 729 
 
 V. Hammond ii 108 
 
 V. Haskell 11 273 
 
 v.'Hauser i 665 
 
 V.HIU ,... ii 108 
 
 V. Hodge li 812 
 
 V. Hoskins i 864 
 
 V. Jameson i 869 
 
 V. Ketchnm il 429, 430, 467, 668, 675 
 
 V. Lady Lawley ii 722 
 
 V. Leach 1 609 
 
 V. Lockwood J .11 687 
 
 V. Manrow li 347, 427 
 
 v.M'Gaw.. ii 83 
 
 V. M'Kelvey 11 381 
 
 V. Moseley ii 897 
 
 V. Musser 11 341 
 
 V. Patton il 649 
 
 V. Peake , 1 672 
 
 V. Peters 1 483 
 
 V. Philadelphia (The) 11 286 
 
 V. Porter 1 343, 386 
 
 V.Potter 11 682 
 
 V. Proprietors, &c 11 112 
 
 V. Sherrard 11 42 
 
 V. Sloan ii 726, 788 
 
 V. Stevens 1 301, 335 
 
 V. Stewart 15, 194, 196, 11 419 
 
 V. Tolmlo 11 SO, 83, 89, 186,187, 188 
 
 V. Wblte 11645,649, 650 
 
 V. Wilson il 86 
 
 V. Young ii 125 
 
 Thorn v. Blanchard 1 164 
 
 Thorn's Case 1 547, 653 
 
 Thornbury v. Directors of the Poor i 43 
 
 Thome v. White 1 474 
 
 Thornton v. Carson 11404 
 
 v. Moody 11 510, 625 
 
 V, Bobinson 11 269 
 
 Thorpe v. Gisbourne 11 808, 829 
 
 Thrasher v. Everhart . . . ,, ii 434, 455, 467, 663 
 
 V. Haynes 11 402 
 
 Threadgillv. White 11525, 536 
 
 Thresh V. Rake 11 693 
 
 Thrust v. West 11 38, 63, 134 
 
 Thurber v. Blackbonrne ii 195, 198 
 
 Thurman v. Durham li 108 
 
 V.Wells 1 516 
 
 Thurston v. Little ii 148 
 
 V. Martin 11 145 
 
 V. M'Kown 11 674 
 
 V. Murray 11 420 
 
 V. Percival 11 430 
 
 V.Whitney 1 18 
 
 Tlbb's Helra v. Clark 1 678 
 
 Tibbets V. Dowd 1451 
 
 Tibbits V. Tlbbits i 695 
 
 Tibbitts V. Percy 11 666 
 
 Ticev. Norton 1 828 
 
 Tickel V. Short 1 439 
 
 Tlckout V. Chilly 1 482 
 
 Tier V. Pennell 11 733 
 
 Tlermau v. Jackson 1 483 
 
 Tiffany v. Drlgga 1 855 
 
 Tilgham v. Tllgham 11 700 
 
 Tilfc V. Parsons 1 177 
 
 TilUnghast v. Nourse 1 492 
 
 TlUotson Bx narte 11 888 
 
 V. Race ; 11640, 749 
 
TABLE OF CASES CITED. 
 
 pxlvii 
 
 Tilson V. ThompBon 1 611 
 
 Tilton V. Gordon ii 30 
 
 T.Nelson 1438, 454 
 
 Timberlake v. Cobbs ii 72 
 
 v. Parish ...iiGgs, 704, 705 
 
 Tindal v. WMtrow i 441 
 
 Tinear's Case i 770 
 
 Tinkham v. Arnold i 068 
 
 v.Borst ii 14 
 
 Tipton v. Fietner i 7.32 
 
 V. Mayfleld'B Ex'ra ii 188. 199, 426 
 
 T. The State i 538, 539 
 
 Tisdale v. Harris ii 670 
 
 Tisloe V. Graeter ii 854 
 
 Titcomb v. Union Marine Ins. Co ii 375 
 
 Titford v. Knott ii 599, 612 
 
 Titus v. Ash ii 90S, 971 
 
 T. Bnllen ii 869 
 
 v. Myers ii 688, 754 
 
 Tobey v. Barber i 476 
 
 Todd V. Moore's Adm'r i 6'4 
 
 V. Philhower ii 644 
 
 T. Elvers' Ex'rs ii 649 
 
 V. Stafford i 127 
 
 Todd's Lessee v. Ockerman ii .301 
 
 Toflfani V. Jennings ii 863 
 
 Tole et ux. v. Hardy ii 639 
 
 Tolenv.Tolen ii 99 
 
 Tolman v. Emerson ii 297, 471, 475, 476 
 
 V. Franklin ii 681 
 
 Tolson V. Collins ii 704 
 
 Tom V. Goodrich i 862 
 
 Tomkins T. Mitchell i 686 
 
 Tomlin v. Brookes i 804 
 
 Tomlinson T. Borst 1370 
 
 T. Borst 16, 386 
 
 Tompkins v. Ashby i 440, 609, ii 69 
 
 T. Hail .". i 646 
 
 T. Ladbroke i 695 
 
 V. Saltmarsh i 191 
 
 V. Wiley ii 210 
 
 Tomson T.Ward 11483,517 
 
 Tongue's Case i 111 
 
 Toofv. Bentley 1 865, ii 147, 165 
 
 ToogoodT. Scott ii 125 
 
 Tooke's Case ii 349 
 
 Toomer v. Gadson 1 385 
 
 Toosey v. Williams ' i 603. ii 573 
 
 ToplisT. Baker 1073, 679 
 
 Topper T. Taylor i 814 
 
 1'opping v. Hoot i 696 
 
 TorbertT. Beulah ii 762 
 
 V. Twining ii 762 
 
 Torre t. Summers ii 948 
 
 Torrington's (Lord) Case i 848, 349, 350 
 
 Torry's Lessee T. Beardsley ii 301 
 
 Totbill T. Hooper 1 43 
 
 Touisant t. Hartop ii 406 
 
 Toulman t. Austin ii 588, 656 
 
 Tourton T. Flower ii 86 
 
 Tousley T. Barry 1201, 216, 332 
 
 Tovey v. Lindsay ii 96, 179 
 
 Tower T. Wilson ii 645 
 
 TownT. Jaqnith. 11404 
 
 .y. Needham 1 100 
 
 Towns T. Wilcox ii 401 
 
 TownleyT.Wooley i 380 
 
 Townsend v. Atwater 1 587, ii 512, 516 
 
 T. Bush i 126 
 
 T. Case ii 393 
 
 T. CoTingtoiI ii 468, 507 
 
 V. Graves i 769 
 
 T. Hubbard ii 467 
 
 V. Johnson t 318 
 
 V. Kerns. ii 95 
 
 T. Lawrence ii 333 
 
 T. M'Donald . . ; 1656 
 
 T. Olin 1 621, 11 367, 372 
 
 T. Phillips ii 268 
 
 v. Eiddle ii 692 
 
 T. The State ii 4 
 
 v. Tickell i 609 
 
 V. Townsend 1686, (186 
 
 V. Weld ii 646 
 
 Townsleyv. Springer ii 549 
 
 Tracy V. Hasklns 1827 
 
 V. Jenks i, ii 687 
 
 V. Williams ii 154 
 
 Train V. Brown ,... .1 409 
 
 T. Gould ii 8 
 
 Trant'sCase , «. i 890^299 
 
 Ttaquair t. Eedinger 11 405 
 
 Trash v. Wbitc i 687, 679 
 
 Traver t. Traver 11 "VT 
 
 Treadwell v. Bladen 1 127 
 
 V. Buckley ii 645 
 
 Treadway v. Nicks et al i 867 
 
 Treasurers v. Bates 1 309 
 
 Treat v. Barber i 176, 348 
 
 V. Bunn ii 948 
 
 V.Browning 11948,978 
 
 Trecothic v. Austin ii 86 
 
 Trelawney v. Colman .^ i 785 
 
 Tremaine V. Edwards ii 386 
 
 Trevivian v. Lawrence ii 36, 408 
 
 Tribble v. Frame ii 115 
 
 V. Oldham ii 666, 687, 689 
 
 Triebneri?. Soddy i 127 
 
 Trigg T. Lewis Ex'rs ii 370 
 
 Triroble V. Coons ii 471 
 
 Trimby v. Vigftier 11 430, 434 
 
 Trimmer v. Bayne ii 706 
 
 V. Larrison ii 310 
 
 Trinder v. Wilson i 326 
 
 Tripler v. Olcott ii 701 
 
 Triplet v. Bradley 1 483 
 
 Tripp v. Hathaway ii 651 
 
 Trippe v. Frazier ii 751 
 
 Trisler v. Williamson i 475 
 
 Triston V. Hardy 1 46 
 
 Trott V. Gordon ii 375 
 
 Trotter v. Blake ii 380 
 
 v. Harri s i 646, 66C 
 
 etal. V.Mills il 387 
 
 Troup V. Haight 11 586, 592 
 
 v» Smith... ^ .i 703 
 
 Troupe v. Harebut ii 480 
 
 Trow V. Vt. Central E. E. Co 1 813 
 
 Trowbridge v. Baker 1 441 
 
 Trowel v. Castle i 606 
 
 Truby v. Seybert 1 433 
 
 Truett V. Chapin 1 741 
 
 Trumbo v. Blizzard '. ii 683 
 
 V. Cartwright. 1 ii 696 
 
 Trescot V. Carpenter . . . .' ii 107 
 
 Truscott V. King ii 647 
 
 Truslove V. Burton 1 534 
 
 Trustees of First Incorporated Preshjjterian 
 
 Congfegation in Salem v. Williams, i 459 
 
 of Lansihgbnrgh v. Willard ii 674 
 
 of Qnaker Soc. v. Dickenson ii 084 
 
 ofV. Society v. Hills 1 598 
 
 of Watertown f. Cowen 1 43, 67 
 
 V. Stetson ii 675 
 
 Truwhitt v. Depree ' .i 604 
 
 Tubb V. Madding '. il 74, 394, 397 
 
 Tnberville v. Patrick i 818 
 
 Tucker v. Barrow.>4 i 432, 806 
 
 V. Cracklln.: i 857 
 
 V. Maxvvell I 476 
 
 V. Eandall 1 843 
 
 v.Eankin , 1611 
 
 V. Sanger i 690, 695 
 
 T. Seaman's Aid Society ii 755 
 
 v. Smith ii 674, 685 
 
 T. Welch ii 612, 978 
 
 et al Ex'rs v. Seaman's Aid Society. . .ii 765 
 
 Tucker's Case i 655, 882 
 
 Tudorv. Terrel ii 749, 753, 770, 774 
 
 Tufton v. Wentworth i 701 
 
 Tufts V. Hays i 465, 467, 460 
 
 TuU V. Partlett ii 668 
 
 Tumey v. Knox 18, 182 
 
 Tunno T. Flood ii 687 
 
 T. Eogers i 351 
 
 Turburt v. Beulah 11 766 
 
 Turley v. Seybert i 432 
 
 Turnhull V. Martin i 813 
 
 V. Elvers 1 661, 
 
 et al. v. O'Hara i 61? 
 
 Turner V. Burrows ii724, 731 
 
 v. Child 1409, 418, 419 
 
 V. Coe 1 81 
 
 V. Eyles i 864 
 
 v.,Fendall 1 593, 736, 739 
 
 V. Felgate ii 151 
 
 V, Holman ii 73 
 
 V. Jenkins i 408 
 
 v. Eailton i 438 
 
 V. Eoby ii 168 
 
 Turner v. Stip il 583, 588 
 
 y. WadaiDgton ii 434 
 
cxlviii 
 
 TABLE OB' CASES CITEI). 
 
 Tiirner v. Tatea i 407, 516 
 
 Tilrney v. Wilson ii T27, 731 
 
 Turnip v. Brannon i 196 
 
 V. Thomas ii 4, 8 
 
 ^umipseed v Freeman ii 688 
 
 V. Hawkins i (i65, ii BBS, 699, 618 
 
 Turpin v. Brannon i 196 
 
 v. Tliomaa ii 4 
 
 Turpin'a Adm'rs v. Markaberry i 331 
 
 Tnthill V. Davia i lai, ii 256, 359 
 
 TBttle V. Beebe i 481 
 
 V. Busk -. i 818 
 
 V. Cooper i 498 
 
 V. Hunt i405,ii 368 
 
 V. Jaokeon ii 392 
 
 V. Maeton ii liu 
 
 V. EuBsell Mi 950, 962 
 
 Twambly v. Henley : ii 4, 7 
 
 Tweddellv-. Tweddell- i 701 
 
 Twiaa V. Baldwin •. I 655, 842 
 
 Tyler V. Strong :. i 471 
 
 V. Ulmer -. 1421, ii 8, 52, 378 
 
 V. Wilkinson. .- i 653; 655, 656 
 
 V. Willis ii 115 
 
 Tymason v. Bates ii 645, 783 
 
 Tyree V. Williams 1697, 698 
 
 TJ. 
 
 TJfford v. Lucas i 457 
 
 Uhl V, Commonwealth i 112 
 
 Ulrich V. Litchfield ii 752 
 
 Ulzere v. Poeyfare ii 125 
 
 I'mbehockerv. RuBBell i 857 
 
 Umbragio v. Bligh „ . .ii 195 
 
 Underbill V. Van Cciiftlandt .'...ii '114 
 
 V. Crawford i 7.32 
 
 V. Reiner i 560 
 
 tJnderwood v. Hart i 432 
 
 V. Lane ii 560, 663 
 
 linger v. Wiggins i 440, 510 
 
 Ungles V. Graves ■.., ii493, 506 
 
 Union Bank v. Knapp i 349, 351, 372, 414, 448 
 
 V. KoBter i 364 
 
 V. Mott i 389, 575 
 
 v.Eidgly i34,44T, 748, ii 662 
 
 Union Academy of Stone Arabia v. Plumb 1 746 
 
 Unisv. Charlton's Adm'r ii850, 905 
 
 United States V. Amedy ii 419 
 
 V. Arredondo ii 726 
 
 V. Bacheldor i 814 
 
 V. Barker's Adm'x i 177 
 
 V. Battiste... i 4 
 
 V. Benncr ii 253 
 
 V. Breed ii 801 
 
 V. Bri tton ii B2B, 633, 534, 541 
 
 V. Brockina 1 23 
 
 V. BulTord ii265, 301 
 
 V. Burnham ^, ii, 1004 
 
 V. Burr i, 495, ii 931 
 
 V. Caldwell 1 ii 830 
 
 ■ V. Case of Pencils 199, ii 845 
 
 V. Coffin ii 465 
 
 V. Cooildge i 16, 21, ii 111 
 
 V. Cooper ii 830 
 
 V. Craig i 193, 752, 766, ii 613, 948 
 
 V. Crane i 109 
 
 V. Dayton ii 858 
 
 V.Dodge ii 810, 831 
 
 V. Doebler ii 616, 541, 554. BOO 
 
 V. Dickinaon ii 903 
 
 V. Duane ..: ii 866 
 
 V. Dunn i 119 
 
 V. Edmi ii 821 
 
 V. Freeman 16, 763 
 
 v.'Friuk ii 871 
 
 T. Furlong ii 285 
 
 V.Gilbert ii 286 
 
 V. Gooding i494, 813 
 
 V. Hanway i Bl)7 
 
 V. Hayward i 813, 822 
 
 V. Henry i 106 
 
 V, Hoar ii 701 
 
 V. Holtsclaw ii 6(16 
 
 V. Horrendo ii 732 
 
 V. Hox-le i 567 
 
 V. Hutching a ii 419 
 
 V. Jacobaon i 709 
 
 V. Johns i 608, 012, 613, 710, 741. 
 
 11 341, 419, 613 
 
 V. Johnson ii 484 
 
 V.Jones 11836, 9131 
 
 United States V. Lakeman... 1 860 
 
 V. Lea i 107 
 
 V. Leffler 1 127, 643, ii 688 
 
 V, Leveringe ii 368 
 
 V. Liddle 11253 
 
 V. Mitchell i 178, 510, 667, 766, 
 
 ii 256, 287, 542 
 
 V. McGIue 1 779 
 
 V. McNeal i 869 
 
 V. Monroe ii 700 
 
 V. Moore '. . . ii 806, 812, 866, 870 
 
 V. Moses. .- i 161, 752 
 
 V. Nourse ii 60 
 
 V. An Open Boat i 812 
 
 V. Ortega ii 263 
 
 V. Palmer ii 286. 419 
 
 V Patterson ii 301 
 
 V. Perchman 264, 351, 444 
 
 V.Perez ii 111 
 
 V. Philadelphia i 621 
 
 V. Porter....! 834,844. 845, ii 510, 612 
 
 V. Pryor i 567 
 
 V. Eaffldenbuab ii 113 
 
 V. Reyburn i 568, ii 616, 544. 896 
 
 V. Eeynea 1 621 
 
 V. Eipley .i 67K 
 
 V. Robeson i 617 
 
 V. Saline Bank ii 334 
 
 V, Sharp et al 1 199, ii 286 
 
 V. Sherman ii 568 
 
 V. Slade 1374, 375 
 
 V. Smith ii 846,849, 933 
 
 V. Tardy i 634- 
 
 T. Thompson ii 645 
 
 V. Tom Jones i 24 
 
 V. Turner i 621 
 
 V. Twenty-eight Packages: ii 834 
 
 v.Vigol i 567 
 
 V. Wayne ii 831 
 
 V. Wilson 161,11 301, 662 
 
 V. Wood i 391, 395, 397, ii 421 
 
 V. Woods i 835 
 
 U. S. Bank V. Binney ■ 1 448 
 
 V. Corcoran 1 7.38, 743 
 
 V. Danbridge 1593 698 
 
 V. Haskins ii 273 
 
 V. Stearna .^ i 698 
 
 V.White....' ii 724 
 
 University, <fcc., v. Johnaton 1 641 
 
 V. Beynolda Ex'r i 6U 
 
 Urtetiqui v. D'Arcy ii 217 
 
 UticaBank v. Hillard i, 5, 121 
 
 V. Kibbe. ii 824 
 
 V. Smalley i 746 
 
 Utica Ins. Co. v. Badger ii 598 
 
 V. Caldwell ii 529, BliO 
 
 V. Kip i 441 
 
 Utter T. Walker's Adm'r ii 114 
 
 Vaoherv. Cocka i 170, 202, ii 486 
 
 Vail V. Adams & Rice i 232 
 
 V. Rice ii 730 
 
 V. Nickerson i 36 
 
 V.Smith ii .'»6 
 
 Valen v. Schermerhoru ii 661 
 
 Valentine V. Spier ii 493 
 
 Vallance V. S.ivage \ 1826 
 
 Vallett V. Parker li 073, 674 
 
 Val8ainv.,Cloutler ii 17 
 
 Valten v. National L. F. L. Aa'nce Co ii 905 
 
 Van Aernam v. Van Aeruam i 631 
 
 Van A leu v. Rogers i 857, it 42 
 
 Van AlBtyne v. Erwine ■ ii 193 
 
 Van Amringe v. Barnett i 737, ii 1004 
 
 Van Antwerp V. Stewart ii 403 
 
 Van Benthuysen v. Crapaer i 6II6 
 
 Van Bergen v. Van Bergeu 1 654, 657 
 
 Van Bramm V. Isaacs i 701 
 
 VauBuren v. Cockburn 1 S32 
 
 V. Cockburn i 607 
 
 V. State i 687, 563, ii 248 
 
 Vanblaricnm V. Yeo ii 456 
 
 Vance v. Oommonvealth 1 C04 
 
 V. Fttiris i 3S0 
 
 T. Fearlsa 1 880 
 
 v. Eeai'don ii 844, 845 
 
 V. VanCB ii 81 
 
 Van Cleef v. Fleet ii S68 
 
 VanOourtlandv. Tozer ii 592 
 
 VanDeuzenv, Young 178B, 8SB 
 
TABtB OF OASES CTEED, 
 
 cxUi 
 
 Van Deuzen v. Howe i 4S8 
 
 v. Sciaaam i 465 
 
 Vanflerkemp v Shelton ii 120 
 
 VanderbiU v. Downing ii 145 
 
 V. Mathia 1825 
 
 Tandercomb's Case ii 121 
 
 Vanderdonck v. ThellUBOn ii 486 
 
 Vanderheuvel v: Union Ina. Co ii 171, 178 
 
 Vandervoort v.Col.Ius.Co 11417,418, 798 
 
 Tan-derpool v. Van Valkenburgli i 448 
 
 V. Van Valkcnburgn ii 449 
 
 V. Smith i 212, 254, ii em 
 
 VanDerzee v. McGregor i 165 
 
 Van Deuaen V. Turner ,.,,1221 
 
 V. Van Slyck „i 55 
 
 Vandine v, Burpee i 779 
 
 Van Duaen V. Frink i 89 
 
 V. Worrell i 75 
 
 VanDyckv Hewitt ii 685 
 
 * V. Van Beuren i 670 
 
 Van Dyke v. Ttiompaon ii 587 
 
 Tan Dyne V. Thayer ii 493, 497 
 
 Van Btten v. Hurst ii 366 
 
 Vaneman v. Herdman » iil84 
 
 Van KVonr v. The State. i 61 
 
 Van Gleaen v. Van Gieaen i 748 
 
 Van Gordon v. Jackaon ii 1000 
 
 Van Heusen v. Hadoliff ii 336 
 
 Van Hook T. Whl tlock i 688, 689 
 
 Van Horn v. Brady i 35 
 
 T. Fonda i 692 
 
 T. Prick , ii 610 
 
 Van Houtou's Caae, 1 770 
 
 Van Kenren V. Parmlee i491, BOO 
 
 Van Neas v. Facard ii 726, 728, 792 
 
 VanNorden V, Striker 130, 46 
 
 Van Orden'a Case i 47 
 
 Van Orsdell v. Hazard ii 102 
 
 Van Oatrand v. Heed ii 607 
 
 Van Pelt V. MoGraw i 601, 6.32 
 
 T. Van Vel t i 10 
 
 Van Eenaaelaer v. Hamilton 11 869 
 
 V. Kearney i 1 464 
 
 V. Morrie 1 345 
 
 V. Witbeck ii 139 
 
 Van Eenaaelaer's* Heir's v. Penniman i 665 
 
 Van Bihyn v. Vincent i 685, 6S6, 689 
 
 Van Sant v. Boilean » . .1 29, ii 999 
 
 Van Shaack v. Stafford i 126 
 
 Van Steenhorgh V. Bigelow iil29, 158, 267 
 
 T. Eortz li 147 
 
 Van Stophoust v. Maryland ii S44 
 
 Van' Volkenbureh v. Houk ii 687 
 
 Van Wart V. Wolley 1 525 
 
 Van Wick V. Riat ii 76 
 
 Van Winkle v. Ketchnm ii 674 
 
 Van Wormer v. Mayor, &c., of Albany i 35, 43 
 
 67, li 108, 146, 166 
 
 Van Vechten v. Graves i 481 
 
 Van Vuorhia v. Hawes i 438 
 
 Van Wyck v. Seward 1 608. ii 109 
 
 T. Seward ...i 608 
 
 V. Howard 1 811 
 
 V Aspinwall i 166 
 
 V. McTntoshi ii 612 
 
 VanZandtv. Cobb • ii 323 
 
 Varick v. Jackaon ii 9117 
 
 V. Tallman ii 137, 257 
 
 Valleau v. Vallean 1 6.31 
 
 Varnon v. Moore i 786 
 
 Vass 7. Commonwealth i 292, ii 889 
 
 Vasaev. Mifflin i 216, 571, ii 530 
 
 Vaaaee v Ball ^ ii 174 
 
 V. Smith ii 1004 
 
 Vaugban V. Barrett ii 87 
 
 V. Commonwealth ii 44 
 
 V. Ha vena i 745 
 
 V. Ferine ii 940 
 
 V. Phebe .^ ii 125. 359 
 
 V. Rhodes 1 630 
 
 Vaughn v. Biggers .* ii 5.53 
 
 Vaux -v. Nesbit ii 159, 260 
 
 Veaook v. M'Call ii 665, 666 
 
 Veale v. Hamer ii 405 
 
 Veazie's Case 1 836 
 
 Vedder v. Wilklna ii 553 
 
 V. Vedder i 477 
 
 Venable v. Martin ii 813 
 
 v.M'Donald ii719, 788 
 
 Venafra v. Johnson ii 248 
 
 Vermfl7ea, Ex parte ii 860 
 
 Vernon v. 3etliell " M9 
 
 V. East Hartford i B93 
 
 v. Hammett ii 603 
 
 V. Vawdry } TOO 
 
 Vernamv. Smith • i 463 
 
 Vernorv. Henrv ii 749, 762 
 
 Verplanck v. Sterry ii 061, 662, 664 
 
 Very V. Levy 1,516 
 
 Vibbard v. Staats 1 408 
 
 Vicary v. Moore ii694 
 
 Vice v. Anson i 602, 528,; 540 
 
 Vickroy v. McKnight ii 668, 583, 587 
 
 V. Skelley ii 618 
 
 Vic'oire v. Moulin i 847 
 
 Vidai's Heirs v. Dnplantier ii 354 
 
 Vieliev. Troy & B E R. Co i 697, ii 407 
 
 Vllaav. Jonea ii 9.S7 
 
 Vinal V. Burrill ,. . . . ..i 498, ii 513, 717 
 
 Vincent v. Cole i 677 
 
 V. Grooni i ii 673 
 
 V. Huff's Lessee i 437, ii 378, 875, 1001 
 
 Vining'a Leaaee v. Wooten i 100 
 
 Vinyard V. Brown. i 32 
 
 Viacher V. Conant i 804 
 
 V. Vischer 191,98, 208 
 
 Volant V. Sawyer i 154^ 
 
 Vooght V. Winch i 668, 701, H 36, 123 
 
 Vooi-heea v. Bank of U. S ii 139. 156 
 
 Voria V. McCredy i 520 
 
 V.Smith ii 344 
 
 Voabnrgbv. Barne ii 407 
 
 V. Teator ii 803 
 
 V.Thayer 16,375,379 
 
 v. Wfilch ii 147 
 
 Vosburgh'a Caae i 801 
 
 Vose V. Handy ii 783 
 
 Vowlea V. Miller i 841 
 
 Vrooman v. Pbelpa ii 684, 686 
 
 Vroom v. Ditmars .i 851 
 
 ■ "W". 
 
 Waehter v. Quenzer : i 820 
 
 Waddams v. jBurnhara ii 186 
 
 Waddell V. Blmendorf i 677 
 
 Waddington v. Cousins : ii 611 
 
 Waffev. Birmingham ii 864 
 
 V. Howard ; i 608, ii 755 
 
 V. King i 392 
 
 V. Odeneal ii 358 
 
 V. Wade 1578, 11188, 192 
 
 V. Work ii 563 
 
 Wadleigh v. Sutton li 117, 121 
 
 Wadav.Banks i 186 
 
 Wadsworth v. Alcott ii 709, 730, 765, 787 
 
 V- Griswold i 482 
 
 V. Sharpsteen ,..ii2(6 
 
 V. Sharpateeii,& Moffatt i 786 
 
 V. Sherman . . » ii 266 
 
 Wadsworth'a Caae i 666 
 
 Wadworthville School.v. -Metz i 672 
 
 Waggoner v.ffiells i 748, 766 
 
 V. Waggener .; ,i 670 
 
 Waggoner v. Gray\ Adm'rs ' i 31, *08 
 
 Wasstaff v. Wilson i 199 
 
 Waning V. Toll i 408, ii 674 
 
 Wainwrightv Read ii 679 
 
 Wait V. F airbanka ii 726 
 
 V.Maxwell ii 866 
 
 V. Whitney ii 848 
 
 Waite V. Barry ii 402, 404 
 
 V. Harper ii 674 
 
 V. Templar ,. ii 763 
 
 Wake V. Lock i ii 875 
 
 V. Tinkler : i 481 
 
 V. Wake i 695 
 
 Wakefield v. Croaamann i 202, 407, 411, 452 
 
 V. Gall ii 807 
 
 v.EoaS il6, 18 
 
 V. Stedman ii 664 
 
 Wakely V.Hart i4?, 55 
 
 Wakeman T. Lyon iilOOS 
 
 V. Marquand i 409 
 
 V.Sherman 1502, 679 
 
 Walbridge V. Hall ii 109, 162 
 
 Walcott V. Canfleld i 838, 860 
 
 Waldenv. Daviaon ii 156, 363, 630 
 
 V. Sherburne 1 409, 418, 498 
 
 Waldo V. Long ii 9, 361 
 
 Waldridggv. Kenniaon i 428 
 
 Waldron i. Rensselaer and Sar. E. E. Co 1 633 
 
 V. Tuttle 1669, 11474, 47ff 
 
cl 
 
 TABLE OF CASES CITED. 
 
 Wales V. Cerlew i 374 
 
 T. WillariJ ii 20, 89 
 
 Walford V. Anthony 1858 
 
 Walker v. Ames ii 116 
 
 V. Bank' of State of N. Y 1 Sll 
 
 V. Beaucliamp (Countess of) ii 279, 564 
 
 V. Commonwealtli i 767 
 
 V. Cousins ii 873 
 
 V. Devereaus i 693 
 
 V. Duberry i 498, 499 
 
 y. Dunspaugh 1426,484 
 
 V. Ferrin 11132 
 
 V. Forbes.... 1 526 
 
 V. Maxwell . . . .i 611, ii 187, 188, 197, 274, 430 
 
 V. M'Mahan ^ 1350,11288 
 
 T. Parkham i 376 
 
 V. Scott i 623 
 
 V. Symonds ., i 700 
 
 V.Todd ii 662 
 
 V. Walker i 391 , 392, 393, 685, 686, 698, 
 
 i 210, 649 
 
 V.Wells ii 669 
 
 V. Wildman i 131, 132, 140 
 
 V. Wilson i 858 
 
 V. Wingfleld ii 288 
 
 V. Witter 1864,11 183 
 
 Walker's Case i 604 
 
 Walknp V. Pratt i 174, 197, 315, 502 
 
 Wall V. Buffalo W. Works {748 
 
 V. East River Ins. Co i 782, 11 788 
 
 Wallace v. Duffleld i 685, 686, ii 701, 702 
 
 V. Maxwell i 599, 604 
 
 V. Mease 11210 
 
 V. Pomfret (Lord) ii 705 
 
 V. Rogers ii 672 
 
 V. Small i 427, 431 
 
 Wallace's Lessee v. Miner ii 577 
 
 Waller v. Eleventh School District 1 6, ii 653 
 
 Wallls V. Anderson i 805 
 
 V. Murray 11 326, 333 
 
 V. Squire 1822 
 
 y. Truesdell i 466 
 
 V. Wallis ii 658 
 
 Wallsworth v. M'CuUough ii 147 
 
 Walmsey V. Booth 1 692 
 
 Walmsley y. Reed 11 78 
 
 Walpole V. Cholmondeley 11 750, 752 
 
 V. Ewer ii 431 
 
 Walsh y. Gilmore i 361 
 
 V. Texada's Syndics ii 647 
 
 y. Washington Ins. Co 1 630 
 
 Walston V. White ii 640 
 
 Walter V. Bennett 1 829 
 
 y. Glanville i 702 
 
 y. Perry 11 164 
 
 y. School District ii 553 
 
 Walters y. Gilbert 11390, 415 
 
 v. Pfell .«. ii 77 
 
 Walthol V. Johnson i 325 
 
 Walton y. Cronly's Adm'r 11 647 
 
 v. Green « i 187 
 
 V. Shelly i 122, 129 
 
 V. United States ii 1002 
 
 Walworth's Case i 742 
 
 Wambough v. Schanck 1 640 
 
 Wamburzee v. Kennedy 1 690 
 
 Wamsley y. Commonwealth i 339, il 416 
 
 Wandless v. Cawthorne 1 104 
 
 Ward y. Davidson ii 72 
 
 v. Forrest i 735, 825, 826 
 
 y. Fuller il 687 
 
 v. Green ii 64, 131 
 
 V. Haydon i 49 
 
 y. Hearn il 454 
 
 V. Howell et al i 497 
 
 V. Johnson ii 63, 127, 134 
 
 V. Lattenier 11 709 
 
 V. Lewis : ii 663, 688 
 
 y. Oxford 1199, 253 
 
 V. People 1537, 552,846,11000, 936 
 
 y. Reeder i 684 
 
 y. Smith i 692 
 
 V. State i 897 
 
 V. The People ii 94() 
 
 V. Tucker ii 699 
 
 V. Van Bokkelln 1 687 
 
 V. Vanduzer i 442, 712 
 
 V.Ward 11603 
 
 V. Whitney, .1 98, 11 212, 218, 261, 4!)2','b53, 828 
 
 v.Winshlp 11 076 
 
 Warde y. Warde 1 146 
 
 WardeUv.Bden ., 481 
 
 V. Fermor ii 470 
 
 y . Hughes iilOOl 
 
 Warden v. Bailey n 143 
 
 Wardsworth v. Hamshaw i 142 
 
 V. Euggles ii 722 
 
 Wardwell v. Patri& 11 288 
 
 Warev. Gayetal 1812, 826 
 
 v. Harbin i 865 
 
 V. Juda ... 1 850 
 
 y. Key i 482 
 
 V. Polhill i 608 
 
 V. Richardson 11 844 
 
 V.Ware 11 979 
 
 Warfield v. Castlemain i 695 
 
 Warhus v. Bowery Savings Bank ■ i 447, 448 
 
 Waring v. Warren. . .1 103,322, 323. 325, 330, 331, 58 S 
 
 ii 625, 815 
 
 Warmly v. Commonwealth i 393 
 
 Warner v. Commonwealth ii 280, 429, 432 
 
 v. Payne i 166 
 
 V. President of Jacksonville i 229 
 
 y. Price 1301, 497 
 
 V. Shed ii 153 
 
 Warren y. Flagg 11186,189,422 
 
 y. Greenville i 666 
 
 V. Hall's Ex'r ii 198, 201, 685 
 
 v. Leland i 647 
 
 V. Lynch ii 454, 456 
 
 y. Merry i 121 
 
 V. Paff i 684 
 
 V. Stagg ii 680 
 
 v. Wheeler ii 668 
 
 Warrington v. Early i 607 
 
 Washburn v. Cooke i 166 
 
 y. Cordis 11 666 
 
 y. Merrills i 681, ii 649, 698 
 
 y. Picot ii 674 
 
 Washington v. Brymer i 676, 678 
 
 V. M'Gee ii 407 
 
 Bank v. Palmer i 67 
 
 Insurance Co. v. Slee ii 14 
 
 Watchman v. Crook 11 694 
 
 Waterman v. Johnson ii 720, 756 
 
 V. Robinson i 647 
 
 Waterbury v. Sturtevant i 608 
 
 Waters v. Lilley i 609, 11 730 
 
 V. Tifivis i 698 
 
 Watervliet Bank v. White ii 692 
 
 Watkins v. Baird ii 687 
 
 y. Harwood 1 688 
 
 V. Hodges i 696 
 
 V. Stockett's Adm'r i 607, 11 649, 700 
 
 v. Watkins i 34 
 
 Ex parte ii 105, 143 
 
 Watrous v. ^uthworth i 609 
 
 Watson v. Bevern ii 939 
 
 v. Bigelow i 373 
 
 V.Blaine 11656,734 
 
 V. Boylston ii 668, 749 
 
 y. Oris i 322 
 
 y. Poxon i 611 
 
 V. Gilday i 399 
 
 V. Lincoln (Earl of) ii 706 
 
 V. Osborne i 404, 860 
 
 V. Reed ii 706 
 
 y. Threlkeld i 455 
 
 V. Toone i 700 
 
 v. Walker 11 410 
 
 V. Ware 11 211 
 
 V. Watson il 139, 154, 371. 472, 474, 475 
 
 V. Williams i 175, 321, 326 
 
 et al. V. Ins. Co. of N. America 1 178 
 
 Watson's Case ii 891 
 
 Watt v. Grove 11689 
 
 Wattles v. Hyde ii 472 
 
 v. Marsh 11 824, 827 
 
 Watts V. Garcia 1 814 
 
 V. Garrett 1 5 
 
 V. Kilbonrn ii 492 
 
 V. Lawson . *. i 427 
 
 V. Waddle 1 695, 698. ii 699 
 
 Waugh y. Bussell 186.3,866 
 
 V. Wnngh ii 785 
 
 Wftyman v. Taylor ii 654 
 
 Waymell v. Read ii 684 
 
 Wayne and Ontario C. I. v. Devinney 1 598 
 
 Weall V.King 1838 
 
 Weatherford v. Weatherford 1 589 
 
 Weaver v. Clifford il 148 
 
 V. M'Corklo i 457, 483 
 
TABLE OP CASES CITED. 
 
 cli. 
 
 Weaver v. Shyrock il 
 
 Webb V. Alexander . . . i 215, 508, 511, 584, 869, ii 
 
 V. Bowman's Ex'rs 1 
 
 V. Danforth i 
 
 V. Joy ■. ..il 
 
 V. Peele ii 656, 
 
 v. Pell i 691, ii 68, 
 
 V. Plummer ii 
 
 v. Potts i 
 
 V. Price ii 
 
 V. Rice ii 647, 
 
 T. Roberta' Ex'ra il 
 
 V. Smith i 137, 
 
 V. Warren ii 
 
 TOlJbb'a Heirs v. Webb's Adm'r Ii 63, 7S2, 
 
 Weber v. Kingsland ii 879, 
 
 Webley v. Lanstaff ii 
 
 Webster v. Atkineon ii 719, 749, 
 
 V. Clark 11651,916, 
 
 V. Lee i 811,- 817, ii 24, 907, 
 
 V. Webster i 
 
 V. Woodford ii 
 
 Wedgwood's Case ii 279, 
 
 Weed V. Bishop i 375, 
 
 V. Carpenter i 
 
 T. Ellis ii 
 
 Weeks v, Lowerre i 390, 
 
 T. Lyon i 171, ii 
 
 V. Sparke ; i 
 
 Weem's Lessee v. Disney i 222, 224, 
 
 Weidler v. Farmers' Bank i 732, 
 
 Weidman v. Hnbbell i 
 
 V. Kohr i 318, 322, ii 
 
 V. Schweigart i 
 
 V. Wietzel ii 368, 
 
 Weidner v. Foster ii 
 
 Weigley's Adm'r v. Weir i 477, 
 
 Welbury v. Lister ii 
 
 Welch T. Barrett i 348, 
 
 V. Carter i 
 
 V. MandevUle i 
 
 V. Seaborn ~ i 
 
 Weld V. Gorham ■. ii 728, 
 
 V. Hornby i 654, 
 
 Welden v. Bock i 
 
 T. Burch ii 
 
 Welland Canal Co. v. Hathaway . .i 454, 461, 468, 
 
 Weller v. Foundling Hospital i 
 
 Welles V. Fish ii 
 
 T. Hatchinson ii 
 
 Wellington v. Gale ii 
 
 Wells V.Baldwin ii 651, 
 
 V. Battelle ii 288, 
 
 V. Drayton i 
 
 V.Fisher i 
 
 V. Fletcher i 82, 
 
 V. Hodge. .".^ ii 
 
 V. Lane ii 401, 
 
 V. Middleton i 
 
 V. O'Beal i 
 
 V. Padget 1 
 
 V. Pierce i 
 
 V. Porter 1 147, 
 
 V. Smith i 
 
 V. Tucker 1 
 
 V. Washington's Adm'rs i 
 
 V. Wilson 11582, 
 
 Harbor Case i 751, ii 
 
 Wells' Will, Case of ii 77, 
 
 Welsh V. Crawford ii 394, 397, 
 
 V. Dusar ii 
 
 • V.Nash 11169, 
 
 Welton V. Divine i 
 
 Welty V. Zentmyer ii 
 
 Wendell v. Blanchard i 
 
 V. George 1 126, 
 
 V. Jackson ex d. People ii 
 
 V. Mayor, &c., Troy 1 
 
 V. Moreton i 
 
 V. Van Rensselaer i 
 
 Wendover v. Hogeboom ii 
 
 Wenter v. White ii 
 
 Wentworth v. Chase ii 
 
 V, Crawford ii 
 
 Werely r. Persona i 
 
 Wernwagv. Pawling ii 188, 
 
 Wesley v. Thomas il 649, 698, 
 
 Wesson v. Carroll ii 667, 
 
 V. Chamljerlln, Sheriff, &c ii 
 
 Westv. Andrews 1 
 
 V. Bolton i 
 
 650 
 
 West V. Emmons 1 
 
 V. Hughes 11 
 
 V. Price i 195, 
 
 V. Tilgham i 
 
 Boylston Mann. Co. V. Searle .-.ii 
 
 Westbrook v. Harbeson 1 176, 178, 11 
 
 West Cambridge v. Lexington i 
 
 Westcott V. Bradford 1511, 
 
 V. Cady .^ il 
 
 Westerhaven v. Clive ."■ ii 
 
 Western V. Cartright i 690, 691, 693, 
 
 Tr. Co. V. Schea ii 
 
 Westfleld v. Warren i 
 
 Weston V. Alden i 
 
 V. Barker 1 609, ii 
 
 V. Foster 11 
 
 V. Hatch i 
 
 V. Weston ii 20, 83, 
 
 Westropp's Lessee v. Moore 1 664, ii 664, 
 
 Wetherbeev. Ezekial i 
 
 Wetherston v. Eoington ii 
 
 Wetmore v. Jlill '. 1 
 
 V. White ii 
 
 Weyerv. Zane 1 
 
 Weyland V. Tipton 11 
 
 Whaley v. Banks i 
 
 V. The State il 
 
 Whalley v. Whalley 1 687, 
 
 Wharf V. Howell ii 649, 
 
 Wharton v. Lewis 11 
 
 Wha.te\y v. Meinheim ii 
 
 Whatley v. Johnson '. 1 
 
 Whattonv. Toone 1690,693, 
 
 Wheatley v. Slade il 
 
 V. Williams 11 
 
 Wheaton v. Cross ii 
 
 V. Leyton ii 
 
 V. Wheaton 11 699, 
 
 V. Weed , i 
 
 V. Wilmarth i 
 
 Wheeler v. Hambright .' i 513. 
 
 V. Hatch ii 
 
 V. Hughes i 
 
 V. Lampman 11 
 
 V. Newbold i 730, 
 
 V PfliCk6r ^k i 
 
 V. Raymond .'.'.,'.'.". .'.'.'.11 186, 188, 196, 
 
 V. Van Houten i 21, 
 
 V. Wheeler 1 
 
 Wheelock v. Hall 1 
 
 Wheelright v. Wheelright 11 
 
 W heelwright v. Depeyster i 854, ii 171, 
 
 Whelan v. Whelan 1 
 
 Whelpdale V. Cookson 1 
 
 Whetcroft v. Dorsey » ii 
 
 Whichcote v. Lawrence i 692, 
 
 Whipple v. Stevens ii 
 
 Whit-tler v. Webster 1 
 
 Whitacre v. M'llhaney ii 354, 379, 568, 
 
 Whitaker v. Brown i 329, 
 
 V. Freeman 1 
 
 V. Salisbory ii 460, 493, 600, 603, 
 
 V. Smith 1 
 
 V. Sumner ii 369, 370, 372, 375, 
 
 V. Tatham ii 707, 
 
 Whitbeck v. N. T. Central R. E. Co i 
 
 V. Whitbeck 11650, 
 
 Whitchnrch, Ex parte ii 
 
 Whitcomb V. Minchin 1 
 
 V. Stewart i 3'Jl, 
 
 V. Williams ii 
 
 White V. Ambler i 414, 447, 449, ii 
 
 V. Atkins 11 
 
 V. Carpenter ii 
 
 V. Casanove i 
 
 V. Chouteau i 
 
 v. Coatsworth 1 631, ii 40, 
 
 V.Crawford i 
 
 V. Bgan ii 
 
 V. Everest / ii 
 
 V. Ewer / '. i 
 
 v.Foljambe 1 
 
 V. Gerock 1 
 
 V. Hale et al i 
 
 V, Helms i 
 
 V. Hicks ii 639, 
 
 V.Jones ii 
 
 V. Kibling i 120, 390, 393, 897, 4(K, 
 
 V. Lobre ii 
 
 V. Lord ii 
 
 V. LyncU 11 
 
 42 
 197 
 464 
 666 
 600 
 195 
 513 
 78 
 662 
 700 
 257 
 251 
 665 
 609 
 756 
 68 
 90 
 699 
 143 
 486 
 411 
 700 
 106 
 366 
 805 
 243 
 694 
 734 
 881 
 64 
 33 
 694 
 
 700 
 186 
 
 86 
 521 
 603 
 482 
 371 
 787 
 743 
 198 
 
 23 
 481 
 606 
 6(il 
 177 
 693 
 692 
 273 
 694 
 212 
 695 
 588 
 3S0 
 745 
 663 
 847 
 719 
 <t>2 
 785 
 656 
 
 916 
 633 
 701 
 685 
 3U1 
 144 
 661 
 783 
 939 
 679 
 666 
 870 
 497 
 8 
 640 
 405 
 454 
 106 
 400 
 
clii 
 
 TABLE OF CASES CITED. 
 
 WWte V. MadiSQn ii 7, ai 
 
 T. Merritt ii 2 
 
 V.Miller 1411 
 
 V. Mosely 1858, il 25 
 
 T. PhUbrick. ii 53 
 
 V. Skinner ii471, 691 
 
 V. Story i 466 
 
 V. Union Ina. Co 1 4!)9 
 
 T. Van Kirk ii 733 
 
 V. Waller ii 914 
 
 V. Ward ii 30 
 
 V. Weeks ii 658 
 
 V. White ii 135 
 
 V. VVillard ii 367 
 
 T. Williams , ii 752 
 
 V. Wilson i 604 
 
 White's Case 11867 
 
 White W. & Canal Co. v. Dow i 98 
 
 Whiitehead v. Clinch 1 851, ii 251 
 
 Whlteman etal. y. Neptune i 475 
 
 ■Whitesdos V, Meredith 11731,738 
 
 Whitfield V. Walk 1 351, 379, 586 
 
 Whitford y, Tntjn ; ii 522 
 
 Whiting y. Parney i 135, 139, 143 
 
 V.Bradley ii368,370, 373, 376 
 
 V. Cochran .,..,.,.,.. ii 337 
 
 V. Corwin i 364, 373, 376, 379 
 
 V, Daniel ii 488 
 
 V. Johnson , i 337, 743 
 
 V. White i 681 
 
 Whiiiock V. Crew ii 309 
 
 V. Heard i 693 
 
 V. Ramsey's Adm'x 1 866 
 
 Whitraar v. Napier ii 588 
 
 Whitmarsh v. Cutting 11 798 
 
 Whitmashv. George .„■. ii 407 
 
 Whitmore v. Napier , ii 6S8 
 
 v. Wilks ,, i 30 
 
 WMtnash v. Gifford 1 307 
 
 Whitney v. Allaire i 188 
 
 V. Bigelow ilf)3, 403 
 
 V. Ferris i 496, 497 
 
 y. Hitchcock 1 760 
 
 V. Holmes ii 409 
 
 V. Peckham ii 30, 65 
 
 V. Shufolt ,, iil37, 158 
 
 V. Slauson .it 1640 
 
 V. Sterling i 388, 467, 498 
 
 y. Thomas ii 474 
 
 1 V. Walsh ii 171 
 
 Whittaker v. Bank of England i 171 
 
 V. Williams i 302, 465 
 
 Whittemore y. Brooks ii 490, 494, 499, 500, .505 
 
 V. Whittemore .ii 84 
 
 Whlttiok V. Kane ii 649 
 
 Whittier v. Smith 1 847 
 
 Whittingham v. Bloxham ii 880 
 
 Whittingtou v. Christian ii 1010 
 
 V. Farmers' Bank i 746 
 
 v. Wrisfht. 1 465 
 
 et al. v. Roberts 1 825 
 
 Whittlesey v. Starr i 604 
 
 Whittony. Russell ii 753 
 
 Whittnck y. Waters . 1 262, 264 
 
 WJjitwell v. Wyer i 408 
 
 Whymon y. Qath , ii 519 
 
 Wickesv. Caulk 1608, 607, ii 149 
 
 y. Clutterbnck 11 473 
 
 Wickhamy. Belknap 1 667 
 
 V. Freeman i 646 
 
 Wickliffe v. Hill ^ ii 301 
 
 Wickwttre v. Bryan ii .308, 443 
 
 Widgery y Munroe i 122, 11 728, 730 
 
 Wider V. Schilezzi ii 709 
 
 Wier's Case ii 178 
 
 Wiggen V. Busll ii 674 
 
 V. Damrell 1 457, 483 
 
 Wiggins y. Holman 11 960 
 
 y Prior il 513 
 
 V. Wallace i 779 
 
 Wlgglesworth v. Steers '. . .11 687 
 
 Wight V. Small's Lessee il 1001 
 
 Wightmah v. Wightmau Ii fll 
 
 Wightwick V. Banks Ii 854 
 
 Wigle V. Wigle ii 764 
 
 Wigley V. JonoB •. i 864 
 
 Wike V. Lightiier ii 950 
 
 Wilbur V. Brown i sso 
 
 V. Seldon 1 349, 351, 390, 392, 394, 896 
 
 V, Stri'dElaiia' 1337, 494 
 
 V. TttfflM '.■." i 811, 817 
 
 Wilburn V. Hall ii 42T 
 
 Wilcox V. CoUoway , .i 685 
 
 y. Philips ii 428 
 
 V. Bay ii 264, 345, 353 
 
 V. Sheldon i 622 
 
 V. Singletary ii 407 
 
 y. Smith : .i 318, 593, ii 153 
 
 V. Wood ii 732, 793, 795 
 
 Wildv. Vinoir ii 406 
 
 ■Wilde V. Fort 1 698 
 
 Wilde's Case ii 722 
 
 Wilder v. Case ii 387, 388 
 
 Wiles V. Peck ii 410 
 
 Wilhite V. Roberts ii 682,684 
 
 Wilkes v. Jackson i 854, ii >3 
 
 Wilkinson y. Adam ii 733 
 
 y. Leland ii S3 
 
 v. Scott 1477, 685,11 666 
 
 V. Vorce ii 392 
 
 V. Wilkinson ii 698, 699 
 
 Willansv. Taylor i 178 
 
 Willard v. Harvey ii 390 
 
 y. Sperry ii 26 
 
 Willaume v. Gorges i 682 
 
 Willbonrn v, Parkham i 125 
 
 Willesv. Battelle 1 683 
 
 Willets y. Phoenix Bk". ii 711 
 
 Willett V. Winnell i 681 
 
 Williams v. Allen i 805, 808 
 
 V. Allison i 840 
 
 y. Amory ii 374 
 
 V. Armroyd , 11171, 177 
 
 V. Bacon ii 680 
 
 V.Baldwin 1 89 
 
 V. Bank of Michigan i 746 
 
 V. Banks .' ii 313 
 
 v.Beard... i 33 
 
 V. Blincoe. i 8 
 
 y Blunt' ii 144 
 
 V. Brace ii 143 
 
 V. Brocketf V ii 375 
 
 V. Oarr .:;...:. ; 11368. 371 
 
 V. Chapman , ii 962 
 
 V. Cheesborough' , . . .ii 367, 371 
 
 V. Christie '..'i 669 
 
 V, Crarey 11483,516, 684, 705 
 
 V. Cummins i 476 
 
 y. Davis ii 468 
 
 v. East India Co i 605, 635, 704, 822 
 
 V. Ensign i 196 
 
 V. Fitch i 139 
 
 V. Gale i 654 
 
 V. Oilman 11720, 729 
 
 V. Hayes ii 793, 883 
 
 V. Hodgson i 600, ii 72 
 
 V. Kelley et al 1 459 
 
 V. Kelly and Halstead i 202 
 
 V. Kinnard i 847 
 
 V.Lowndes i 460,11 368, 288 
 
 V. Matthews i 841, ii 873 
 
 v. Mattocks i 697 
 
 V. Merle ii 256, 258 
 
 V. M'Fall ii 184 
 
 y. M'Gee .. 1 668 
 
 V. Morland i 653, 654, 655 
 
 y. Mundie ii 523 
 
 V. Ogle i 863 
 
 V. Payton's Lessor 11473, 475 
 
 V. Preston , ,■ ii 65 
 
 y. Price , 1 428 
 
 V. Rogers ii 376 
 
 V. Shaw 1 804 
 
 V. Sheldon i 610, ii 301 
 
 V. Starr ii 456 
 
 V. Storrs i 699, ii 86 
 
 V. Taylor : il 1013 
 
 V. Thomas i 818 
 
 V. Thorp 1 101, 433 
 
 V. Trepaignier li 134 
 
 V. Walbridge i 131 
 
 y. Welch i 747 
 
 V. Wilkes .ii 847 
 
 V. Willard i 890, 400 
 
 V. Williams , .1 351, 393 
 
 y. Wood i 461, 683 
 
 y. Woodhouse ii 30 
 
 V. Woodman i 761 
 
 Williams'- Case i 543, 550 
 
 Heirs V. Wilson 11 58S 
 
 Lessee v. Burnet ! ii 296 
 
 V. Henderson Ii 813 
 
TAHLE OP CASES OIXKI). 
 
 cliiL 
 
 WiUifimson v. Commonwealth i 205, 265 
 
 V. Dillon 1 178, 200 
 
 V. Farrow ii 84 
 
 V. Goold 1 701 
 
 V. Henley i 440, 791 
 
 V. Johnson ii 614 
 
 V.Morton i 92 
 
 V. Patterson i 350 
 
 V. Perkins ii 375 
 
 V. Thompson i 229 
 
 V. Tnnno ii 174, 175 
 
 V. Williamson i 631, 701 
 
 Williamson's Case i 738 
 
 Willies V. Farley i 198, 206, 320, 327, 494 
 
 Willinck v. Miles i 593, ii 585 
 
 Willing V. Perot ii 88 
 
 WillingB V. Conseqna i 81, 743, ii 538, 698, 726 
 
 Willis V. Bailey ii 316, 333 
 
 V. Bernard i 81, 181 
 
 V. Brown i 32 
 
 V. Farley i 320 
 
 V. Jernegau i 439 
 
 V. Peckham ii 813 
 
 V. Snelling i 517 
 
 V. Willis ii 702 
 
 Willoughby v. Carleton ii 460, 545 
 
 V. Kaymond i 847 
 
 Wills V. Tucker i 4 
 
 Wilmarth V. Monntt'ord i 65 
 
 Wilmer v. Harris i 175. 502, ii 512 
 
 v.Israel i 379 
 
 Wilmington v. Burlington i 253, 811 
 
 Wilmot V. Munson i 851 
 
 V. Smith i 516 
 
 Wilmot's Lessee v. Talbot i 89, 126 
 
 Wilson V. Allen i 666, 670 
 
 V. Betts i 281, ii 480 
 
 V. Boerem i 280 
 
 V. Bowie i 577 
 
 V. Codman's Ex'rs i 842 
 
 V. Collins ii 868 
 
 V. Conine ii 365. 379 
 
 V. Daniel ii 114, 1000 
 
 V. Gale i 605, ii 530, 539 
 
 V Graham i 685, il 198 
 
 V. Hamilton ii 21, 25 
 
 V. Hanson ii 666 
 
 V.Harding i 173 
 
 V. Herkimer Co. M. Ins. Co i 782 
 
 V. Hirst , ii 134 
 
 V. Hurst's Ex'rs ii 370 
 
 V.John' ii 1*9 
 
 V. Larmouth ii 117 
 
 V. Lenox i 119 
 
 V, Lozier ii 428 
 
 V. Mawson 1865 
 
 V. McCullogh ii 895 
 
 V. Myers i 654 
 
 V. People i 785 
 
 ads. Eobertson 11721 
 
 V. Simpson i 186 
 
 V. Smith ii 429, 430, 588 
 
 V. Stoner ■ i 652, 668, ii 301 
 
 V. Troup 1 140 
 
 V. Wadleigh i 523 
 
 V, WallaCB i 852 
 
 V. WcUer ii 157 
 
 V, White ii 870 
 
 V. Wilson i 374, 378, .379, 881, 382, ii 707 
 
 V. Witherby 1 671, 678 
 
 V. Woodhall et al ii 765 
 
 Wilson's Adm'rs v. Bowen i 736 
 
 V. Hinos 1438. 431 
 
 Heirs v. Bodley i 690 
 
 Wilt V. Franklin 1609,11656, 686 
 
 Wilton V. Girdlestone ii 378 
 
 Witmarflli v. Genge 1 307 
 
 Wimraer'B Appeal ii 81, 83 
 
 Winautsv. Sherman 16,343,409, 410 
 
 Winans v. Dunham ii 61, 66, 379 
 
 V.Huston 11117 
 
 Winchecomb v. Hall — i 691 
 
 Winchell v. Hicks i 519, 502 679 
 
 V Latham i 714, 739, ii 869, 908 
 
 Winchester V, Evans 11108, 186 
 
 V. Union Bank i 746 
 
 Winder V. Little i 249 
 
 Windham V. Lord Evrcmont ,...i 608 
 
 Winsmore v. Greenbank i 91, 802 
 
 Winfleldv. Bacon ii 121 
 
 WJnford v. Powell i 833 
 
 Wing V. Bnrgis ii 719, 773, 
 
 V. Chase ii 
 
 Wingfleld v. Whaley i 
 
 Winfock V. Hardy i 732, 736, ii 5.83, 685, 
 
 Winn V. Patterson ii 854, 505, 669, 
 
 Winship v. Baas ii 
 
 Winslow V. Commonwealth i 
 
 V. Grindall ; ii 
 
 Winstanley V. Savage 1677, 
 
 Winston v Mosely ii 907, 
 
 Winter v. Thibodeaux's Ex'rs Ii 64. 
 
 Winters v. January ii 
 
 Winthrop's Survivors v. Lane ii 
 
 Winthrop v. Myer i 
 
 V. Union Ins. Co ii 
 
 Winton v. Saidler i 
 
 Wirnwa? V. Pawling il 
 
 Wise V. Hilton ; 1 
 
 V. Tripp i 
 
 V. Wilcox i 
 
 V. Withers ii 146, 150, 161, 164, 
 
 Wiseman v. Eisinger ii 
 
 Wishart v. Cosby ii 
 
 'V.Downey i 587, ii 
 
 Wlsncr V. Barnet 1 684, 
 
 V. Ogden 1684, 
 
 Wistar V. Walker i 
 
 Witherell V. Swan i 
 
 Witherington v. Eveleth ii 
 
 Withers v. Atkinson i 400. ii 578, 
 
 V. Gillespy i 410, ii 519, 
 
 V. Hichardson 1 
 
 Witherspoon's Heirs v. Witherspoon's Ex'rs . . ii 
 
 Witmer V Schlatter ii H, 9, 
 
 Witter v. Brewster li 
 
 V. Cazalet ii 
 
 V. Latham i 
 
 W. Lake Co. V. Young 11 
 
 Wogan V. Small i 
 
 Woli' V. Carothers i 
 
 V. Gonland ii 
 
 V. Howes ii 683, 
 
 V. Rodifer i 
 
 V. Wyeth 1396, 
 
 Wolfe V. Horton ii 
 
 V. Washburn ii 117, 254, 390, 
 
 WoUenweber v. Kiterlinus i 
 
 Wolley V. Brownhill 1 
 
 Wolverton v. Commonwealth ii 352, 
 
 Womach v. Hughes ii 683, 
 
 V. Wilson il 
 
 Wood V. Ambler i 
 
 V. Bank of Kentucky i 
 
 V. Beach 11 
 
 V. Briant i 684, ii 
 
 V. Bulklcy i 
 
 V. Bylngton 11 14, 
 
 V. Chapm i 474, ii 267, 
 
 V. C;onnell il 521, 
 
 V.Davis 114,13, 
 
 V. Fitz i 
 
 V. Grundy 11 
 
 V. Hickok ii 
 
 V. Jackson ii 21, 40, 44, 
 
 V. Jefferson Co. Bank ii 
 
 V. Lee ii 
 
 V. Little 11 
 
 V. Ludwig i 
 
 V. Mann ii 
 
 V. M cCliesney ii 
 
 V. Perry ii 653, 
 
 V. Pleasants ii 257, 
 
 V. Stephen '. 11 4, 7, 
 
 V. The Auburn & R. R. E. Co 11 
 
 V Toney ii 
 
 V. Wallbridge i 
 
 V.Wilcox ii 
 
 V. Williams ii 
 
 V. Wiant ii 
 
 V. Winant ii 
 
 Wood's Lessee v. Pindal i 
 
 Woodard v. Paine i 176, 215, 305, 11 143. 
 
 v. Speller 1 
 
 Woodbeck v. Keller i 
 
 Woodbridge v. Austin i 814, il 
 
 v. Spooner ii 
 
 Woodbury V. Northy : i 
 
 Woodcock V. Bennett i 713, ii 
 
 Woodcock's lose 1 
 
 Wooden v. Shotwell i 
 
 Woodford's Heirs v. Pendleton 1 
 
 457 
 
 584 
 753 
 853 
 125 
 684 
 982 
 474 
 
 72 
 608 
 
 68 
 729 
 119 
 429 
 403 
 126 
 '180 
 163 
 147 
 783 
 5.36 
 689 
 685 
 482 
 .343 
 146 
 924 
 .587 
 408 
 754 
 
 63 
 337 
 323 
 4 
 278 
 786 
 327 
 940 
 684 
 827 
 
 393 
 346 
 649 
 897 
 588 
 583 
 586 
 686 
 658 
 705 
 863 
 879 
 058 
 896 
 125 
 218 
 128 
 726 
 110 
 296 
 724 
 405 
 
 33 
 105 
 474 
 727 
 417 
 
 13 
 405 
 373 
 471 
 730 
 361 
 691 
 591 
 
 34 
 161 
 262 
 
 675 
 7 
 646 
 292 
 471 
 746 
 
 Vol. I. 
 
 20a 
 
cliv 
 
 TABLE OF CASES CITED. 
 
 Woodhou^elee v. Dalrymple ii 723 
 
 Woodhull V. Holmes i 120, 811, ii 674 
 
 Woodman v. Coolbrotli ii B88, 661, 664 
 
 Woodmas v. Mason ' ii 346 
 
 Woodroffe v. Williams ii 360 
 
 Woodruff V. Cook ; i 197 
 
 V. MiT. Bk. of N. T ii 728, 788, 805 
 
 V. Whittlesey 1 326, 327, 758 
 
 Woods V. Courier ■. ii'286 
 
 V. Morrell ii 937 
 
 V. M'Pheran ii 886 
 
 V.Woods 1641 
 
 V. Young ii 1062 
 
 Wodson V, Buford i 604 
 
 Woodward V. Larking..^ i 473 
 
 V. Paine 1 176, 215, ii 139 
 
 V. Spiller ii 613 
 
 V. Tremere ii 198 
 
 Woodworth v. Van Buskirk ii 108 
 
 Woolenweber v. Ketterlinua i 386 
 
 V. Morris i 346 
 
 Wooley V. Brownhill i 239 
 
 Woollam V. Hearn ii 700 
 
 Woollaston'8 Case i 680 
 
 Woostur V. Parsons i 822 
 
 V.Perry 11870 
 
 Wooten V. Heed's Ex'rs 11640, 088 
 
 Worcester V. Green ii 6 
 
 (Inhab. of) v. Eaton 11 685 
 
 Worman V. Boyer 1379, 616 
 
 v. Leagarder 11 640 
 
 V. Commonwealtli ii 383 
 
 Wormley v. Commonwealtb ii 383 
 
 Worrall v. Jones '. i 29, 30, 47 
 
 V. Munn 1 643 
 
 V. Parmelee 111012 
 
 Worrell v. Munn ii 471, 661 
 
 Worswick v. Beswick i 7.33 
 
 Worth V. Mumford 11 287 
 
 Wortham v. Commonwealth 11 110 
 
 Worthington V. Bicknell i 126 
 
 _ V, Hylyer 11783,786 
 
 Worton V. Smith 1 864 
 
 Wray v. C. >mptroller-aeneral i 686 
 
 V. Field 11706 
 
 V. Steele ji 701 
 
 Wren v. Wardlow 11 667, 672 
 
 Wright V. Butler iiig, 40 
 
 V.Cooper 1853 
 
 V. Court i 493 
 
 V. Crookes 11688 
 
 V. Decklyue 1 176 
 
 V. Freeman 1 650, 657, 659 
 
 V. Hicks i 87 
 
 V. Howard 1 653, 656, 657 
 
 V. Jacobs ii 618 
 
 V. King 11 644 
 
 V.Latham 11670 
 
 V. Lathrop 11 53 
 
 V. Littler 121,214,11208 
 
 V. Matthews ii 875 
 
 V. Mott 11 337 
 
 V. Nichols 11006 
 
 V. Patton 11274, 434 
 
 V.Phillips 1 021 
 
 V.Sharp 1880,384 
 
 V. Weakley 11 669, 691, 692 
 
 V. Williams 1328, 872 
 
 V.Wood 11850 
 
 V. Wright 1 460, 475, ii 81, 403, 888 
 
 Ex pane 11 401 
 
 Wright's Lessee v. Deklyne 1 176, 510, 11 18, 19, 
 
 „ 62, 679 
 
 Wroe V, Washington 1 849 
 
 Wusthoff V. Dracourt 11 640, 738 
 
 Wyatt V. State i 637, 11 249 
 
 Wyche v. MackUn 11 687 
 
 Wyckoff V. Remaen 1 732 
 
 Wyman v. Farrar 11 714 
 
 Wyman v. Mitchell i 822, ii 
 
 V. Winslow 11 
 
 Wynanta v. Sherman 16, 
 
 Wynehamer v. People ii 
 
 Wynham V. People 11996, 
 
 Wynkoop v. Burger ii 755, 
 
 Wynn v. Williams 1 
 
 Wynne y. Anderson i 
 
 V. Waring i 
 
 Wynatanley v. Lee 1 
 
 144 
 694 
 343 
 
 54 
 677 
 
 Yale V. Dederer i 466. 611 
 
 Yallop V. Holsworthy 1 690 
 
 Ex parte 11703 
 
 Yarborough v. Beard ii 471, 583, 588 
 
 V. Hudson .1 578 
 
 V. Monday ii 457 
 
 Yard v. Cramond ii 124 
 
 Yatev. Mosely 1 695 
 
 Yates V. (;arnsew ..." i 407, 762 
 
 V. Hamble i 681 
 
 V. Lansing 11 103, 141, 156, 162 
 
 V. People i 614 
 
 V. St. John & Van Alstyne ii 364 
 
 Yeateman V. Woods ii 708 
 
 Yeates v. Pirn ii 726, 731 
 
 Yeatman V. Brwin ii 549 
 
 Ex parte i 132 
 
 Yea ton v. Bank of Alexandria ii 726 
 
 V. Fry 11 419j 814 
 
 Yeoman V. Chatterton ii 674 
 
 Yewin's Case ii 951 
 
 Yordanv. Hess 1136,142,11 159 
 
 York and Md. Line E. E. Co. v. Winans i 619 
 
 York Buildings Co. v. Mackenzie 1 692, 694 
 
 York's Case 1 532 
 
 YOrkv. Pease ii 892, 912 
 
 Yoter V. Sanno 11 515 
 
 Youds V. Lefavour i 491 
 
 Youle V. Brotherson ii 107 
 
 Young V. Baimer 1 819 
 
 V. Bank of Alexandria ii 273, 341, 429 
 
 V. Black ii 21, 40, 47, 1002 
 
 T. Brovm 11608 
 
 v.Bushnell 11670 
 
 V. Bushnell 1455,464, ii 670 
 
 V, Catlett ii 918, 920 
 
 V. Chandler 11 427 
 
 V. Commonwealth 1593 
 
 V. Craig ii 699, 700 
 
 v.Dearbom iS90, 400 
 
 V. Gregory ii 417 
 
 V. Grundy 11 674 
 
 V. Hadley 1 478 
 
 v.Hlgliland i 820 
 
 V. KingfThe) i 831 
 
 V. Mackall ii 212, 214 
 
 V Mason 1 734 
 
 V. N. Y. C. R. B. Co 1 464 
 
 V. Overacker 11 34, 109, 391 
 
 V. Price 1 682 
 
 Y. Eenben 11 404 
 
 V. Bingo ii 588 
 
 V. Stockdale; 11 507 
 
 V. Wiseman i 689 
 
 V. Young i 872 
 
 V. In re ii 644 
 
 Yonter v. Sanno 1 133, 164, 11 554 
 
 Yrlsarri y. Clement ii 195 
 
 Z. 
 
 Zabriskio v. Smith il 1006 
 
 Zane's Devisee v. Zane 1 686 
 
 Zeno V. Louisiana Ins. Co 11 172, 178 
 
 Zerbe v. Schall ii 301 
 
 Zerby V. Wilson 11468, 469 
 
 Ziele V. Campbell's Bx're 1 86S 
 
A TREATISE 
 
 THE LAW OF EVIDENCE 
 
 VOLUME THE FIRST. 
 
 "With a view to assist the proceedings of Courts of Justice in the inves- 
 tigation of facts submitted for their decision, general rules have been laid 
 down respecting the admissibility and effect of evidence, and the order in 
 which the several proofs are to be adduced. These rules constitute the Law 
 of Evidence, and are the subject of the following Treatise. In inquiries 
 upon this subject, the great end and object ought always to be the ascer- 
 taining of the most convenient and surest means for the attainment of 
 truth. The end sought is truth ; the rules laid down are the means used 
 for the attainment of that end. 
 
 The evidence adduced before juries upon controverted questions of fact is 
 of two kinds ; Parol Evidence, consisting of the viva voce examination of 
 witnesses, and Written Evidence. In treating of these subjects, the follow- 
 ing work will be divided into three parts. In the first part, it is proposed 
 to consider the subject of proof by witnesses, and the principal rules rela- 
 tive to evidence in general; in the second part, to consider the subject of 
 written evidence ; and, in the third part, it is proposed to consider certain 
 branches of the law of evidence, chiefly of a practical nature — such as the 
 
 means of enforcing the attendance of witnesses, the mode of examining 
 Vol. I. 1 
 
2 Introduction. 
 
 witnesses, bills of exceptions and demurrers to evidence ; and the conse- 
 quences generalljt of the improper admission or rejection of evidence by a 
 judge at the trial. 
 
 There are, moreover, certain matters which do not require proof; such as 
 those which the judge or jury are presumed to be already acquainted with ; 
 these are said to be noticed judicially. Matters, also, that are admitted on 
 the record or under a judge's order, do not require proof. These subjects 
 will be treated of in the appropriate divisions of the following work. 
 
PART THE FIRST. 
 
 CHAPTEK I. 
 
 01" THE PEOVIKCB 01" THE JUDGE TO DECIDE TTPON THE ADMISSIBILITY OP ETI- 
 DENCE ; AND OF THE SEVEBAL CAUSES OP INCOMPETENCY OP WITNESSES. 
 
 The parties to a suit are not permitted to adduce every description of 
 evidence which, according to their own notions, may be supposed to eluci- 
 date the matter in dispute; if such a Jp,titude were permitted, evidence 
 might he often brought forward which would lead rather to error than to 
 truth, the attention of the jury might be diverted by the introduction of 
 irrelevant or immaterial evidence, and the investigation extended to a most 
 inconvenient length. In order to guard against these evils, certain rules for 
 limiting and regulating the admissibility of evidence have been established, 
 from time to time, by the judges ; few of this description of rules are the 
 result of positive legislative enactment, (l) 
 
 It is the province of the judge presiding at the trial, to decide all ques- 
 tions on the admissibility of evidence ; it will be for the judge also to decide 
 any preliminary question of fact, however intricate, the solution of which 
 may be necessary for enabling him to determine the other question of 
 admissibility. Upon this subject, it has been said by Buller, J., (2) 
 *5 that *whether there is any evidence is a question for the judge, but 
 whether the evidence is sufficient is a question for the jury. (3) 
 
 (1) See by Ld. Abinger, C. B., in E. v. Byle, 9 M. & W. 339, and by Parke, B.^ Ibid. 244. 
 
 (3) Carpenter's Company v. Hayward, 1 Doug. 875 ; B. N. P. 397. 
 
 (Under recent statutes, in England and in this state, fewer objections are now allowed 
 to the competency of witnesses than were permitted under the common law rule ; but 
 the former decisions are still important in many respects, and will therefore be cited as 
 usual, especially where the principle to be illustrated applies with equal force to other 
 cases of incompetency.) 
 
 (3) See also Bennison v. Jewison, 13 Jur. 485, Exch. 
 
 Note 1. — In Pennsylvania, if, when a witness be offered, it be perfectly cUa/r from the 
 testimony given in relation to him, that he is interested, the court may reject him as 
 incompetent ; but if his interest be in the least degree doubtful, the court should permit 
 him to be sworn, instructing the jury that if, in their opinion, he is interested, they are 
 to pay no regard whatever to his testimony. Hart v. Heilner, 3 Rawle, 407. 
 
 Where a summary proceeding is instituted by statute to be conducted on proof, the 
 law will hold the tribunal to the same rules of competency as prevail in the common law 
 courts, unless a contrary rule be declared by the statute. The State v. Barrow, 3 Murph. 
 121. 
 
 Evidence received by a judge on the trial of a cause, as preliminary to the intro- 
 *4 duction of other evidence, (e. g. that one is a partner, so as to let in Jiis admissions 
 as evidence against another partner,) is not to be submitted to a jury. It is the 
 province of the judge, and not of the jury, to pass on its sufficiency. Harris v. Wilson, 
 7 Wend 57. (Jones v. Hurlburt, 39 Barb. 403.) See also Hartford v. Palmer, 16 John. Rep. 
 143 ; Livingston v. Kiersted; 10 John. Rep. 363 : Lyon v. Daniels, 14 Penn. State R. 197. 
 
 That the jury are to decide on the sufficiency of evidence, there are many cases, among 
 which these are a few : Wills v. Tucker, 3 Binn. 370, 372, 373 ; Hardway v. Monson, 3 
 Munf. 230 ; Stanks v. FenWick, Id. 487 ; 1 Wash. Virg. Rep. 90 ; Hoseboom v. Billington, 
 
4 Of the Province of the Judge [ch. i. 
 
 17 John. Rep. 183 ; Fisher's Ex'r v. Duncan, 1 Hen. & Munf. 563 ; Keel v. Herb, 1 "Wash. 
 Virg. Rep. 203 ; New York. Firem. Ins. Co. v. Walden, 13 John. Rep. 513 ; Lessee of 
 Fehl V. Good, 3 Binn, 495 ; Rogers v. Briley, 1 Haywood, 356. Whether or not the evi- 
 dence on one side tends to establish a particular fact, is a question of law for the court, 
 while its weight and convincing force are questions for the j ury ; and hence an exception 
 will always lie to an erroneous charge or ruling as to the legal tendency of the evidence. 
 Per Johnson J., in Tuttle v. Buck, 41 Barb. 4.17. 
 
 Incompetent evidence should always be withheld from the jury. Lee v. Tapscott, 3 
 Wash. Virg. Rep. 376 ; Brown v. May, 1 Munf 391 ; Penfield v. Carpender, 13 John. Rep. 
 350 ; Miller v. Starks, Id. 517. 
 
 Competency is presumed till the contrary is shown. And see the following cases : Hall 
 V. Sittings, 3 Harr. & John. 113, 120 and iSl, and the cases cited by Chase, C. J., at the 
 last page ; Stoddard v. Manning, 2 Harr. & Gill, 147 ; Callis v. Toison's ex'rs, 6 Gill & 
 John. 80, 91 ; Saxton v. Boyce, 1 Bail. 66 ; Smith v. White, 5 Dana, 382, 388 ; Savage, 
 C. J., in Jackson ex. dem. Howell v. Delancy, 4 Cowen, 437, 430. 
 
 But the interest once being established, it should be clearly removed ; and the witness 
 leaving the question doubtful on the facts stated, and the judge at N. P. rejecting him, 
 the court in bench refused to grant a new trial. Seymour v. Beach, 11 Conn. Rep. 275, 
 381, 383 ; McManagil v. Ross, 30 Pick 99, 103. These cases, in short, with many others, 
 (see Witter v. Latham, 13 Conn. Rep. 393, 400, and the cases there cited, especially Don- 
 elson V. Taylor, 8 Pick. 390 ; see Coleman v. Wolcott, 4 Day, 388, contra^ hold, that it is 
 for the court alone to try and determine the question of competency, both as to the law 
 and the fact, wherein ic comes in place of a jury ; and a new trial will not be granted 
 where there is a fair conflict of evidence, even though the court may find against a slight 
 preponderance. The rule here does hot apply, that the court shall decide the law, and 
 the ju'ry find the facts. All this was afeo fully considered and expressly determined, in 
 Townsend v. The State, 3 Blackf 151, 162, and see High v. Stainbaok, 1 Stew. Rep. 24. 
 And above all, error does not lie for a finding, one way or the other, upon the facts. 
 Taylor v. Taylor, 2 Watts, 357, 358. After the court has determined the question, it is 
 not proper to submit it to the jury._ Witter v. Latham, swpra. Though it is said that 
 where the point depends on the decision of an inti:i6ate question of fact, judges occasion- 
 ally, in practice, take the preliminary opinion of the jury. 8th ed. Phil. Ev. by Amos 
 and Phillips, p. 3, and note there. 
 
 It is no ground for a new trial, that, on a preliminary examination as to the compe- 
 tency of a witness, the judge allows, in order to prove interest, improper evidence to be 
 given in the presence of the j ury ; he, in the end, properly receiving the witness on the 
 merits, and submitting his credit to the jury. Ackley v. Kellogg, 8 Cowen, 233. It 
 being shown prima fade that a witness Is incompetent, he cannot be offered to contradict 
 the prima fa^ie proof so given. Prall v. Hiuchman, 6 Duer, 351. 
 
 Under what qualifications it shall be said that the jury are, on the merits, to find the 
 law and fact, either in civil or criminal cases, was much and ably inquired, in Townsend 
 V. The State, supra. The trial was on an indictment under the excise law, for selling 
 spirituous liquor without license. A license was offered in evidence ; but appearing on 
 its face to be in consideration of a sum less than the statute required, (50 cents Instead of 
 $5,) the court pronounced it void, excluded the evidence, and directed the jury that it 
 was not their province to determine the law. Onerror, it was held, that the jury are 
 j udges of the fact, both in civil and criminal inattel's, on such evidence as the court shall 
 submit to them as Competent ; but they are not, in general, either in civil or criminal 
 cases, judges of the law. They are bound to find the law, as it is propounded to them 
 by the court. They may, indeed, find a general verdict, including both law and fact ; but 
 if, in such verdict, they find the law contrary to the instructions of the court, they thereby 
 violate their oath. 
 
 The same thing was lately held by Story, J., in a capital case. United States v. 
 Battlste, 2 Sumn. 340, 343. He stated it as the opinion of his whole professional life, 
 that the jury are no more judges of the law in a capital or other criminal case, upon the 
 plea of not guilty, than they are in every civil case, tried upon the general issue. He 
 said, that in each case, they had the physical, but not the moral right to decide the law 
 according to their own notions or pleasure. That it is the duty of the court'to instruct 
 them as to the law ; and of the jury to follow such instruction. That if the jury were 
 to decide, it would render the law uncertain ; it would be almost impracticable to learn 
 what they did decide ; the court would have no right to i-eview their decision ; that 
 every person has a right to be tried according to the fixed law of the land. If he thought 
 the jury wcre'judges of the law, he should hold it his duty to abstain from stating the 
 law to them. And to this it may be added, if the law give the right to the jury, why 
 should it run into the inconsistency of requiring the court to determine the admissibility 
 of evidence ? But all the leading arguments and authorities on the question will be 
 found fully and ably considered by Holman, J., in Townsend v. The State, 3 Blackf 156, 
 et aeq. He cites Addison, J.'s charges. Suppl. Add. Rep. 53 to 63, No. 6 ; and Pennsyl- 
 vania V. Sell, Add. Rep. 156 : and The Same v. McFall, Id. 255, which go strongly to 
 uphold the same doctrine. The learning of the question is perhaps exhausted in charge 
 
CH. I.J As to the Admissibility, of Mvidence. 5 
 
 This rule applies to the admissibility of every kind of evidence, written 
 as well as oral ; and in all cases, both civil and criminal. 
 
 There are certain conditions precedent whicli are required to be observed 
 before evidence is to be submitted for the consideration of a jury. Thus an oath 
 or its equivalent, and competency in a.witness, are conditions precedent to ad- 
 mitting viva voce evidence ;(1) so the fact of a person's expectation of immedi- 
 ate death, previously to the admission of proof of his dying declaration ; 
 *6 (2) so, also the proof of requisite search, *previously to the admis- 
 sion of secondary evidence of lost writings; (3) and the proof of a 
 stamp, prior to the admissibility of certain written documents ; (4) and the 
 proof of consanguinity or afSnity in the declarant, prior to the admission 
 of declarations of deceased relatives. (5) The judge alone has to decide 
 whether such condition precedent has been fulfilled. If proof is oifered by 
 witnesses, he is to decide on their credibility. If counter evidence is pro- 
 posed, he must receive it before he decides ; and he has no right to ask the 
 opinion of the jury on the fact as a condition precedent. (6) 
 
 No. 6 of Judge Addison, p. 57, et seq., and his arguments are Buch as it is difacult for the 
 legal mind to resist. 
 
 Note 2. — The burden of making out that a witness is incompetent, lies on the party 
 •who makes the objection (per Bayley, J., in Marsdeu v. Stansfleld, 7 Barnw. & Cress. 815 ; 
 S. C, 1 Mann. & Ryl. 669, and md. Watts v. Garrett, 3 Gill. & John. 855) ; yet the case of 
 a banlirupt, called in respect to the foundation of the commission, seems to form an excep- 
 tion. He, it is said, cannot be examined either to support or defeat the commission ; for 
 he often has an interest to do either, and is excluded, for that reason, in general prac- 
 tice. Sayer v Garnett, 7 Bing. 103. 
 
 Note 3.— Utica Bank v. Hillard, 5 Cowen's Rep. 153 ; Cushman v. Loker, 2 Mass. Rep. 
 108 ; Commonwealth v. Snell, 8 Id. 83 ; Churchill v. Suter, 4 Id. 162. A witness is never 
 holden incompetent merely on the ground that t]ie fact that he is called to prove is ef 
 Buch a nature that he cannot be convicted of perjury should he swear falsely. The People 
 V. Ferguson, 8 Cowen's Rep. 102. Nor is it an objection to his competency that the facts 
 to which he swears positively, are of such a nature that they could not be within his 
 knowledge. Tliompson v. Stewart, 8 Conn. Rep. 171. Seamen are considered in law 
 credible as well as competent witnesses, and their testimony is to be weighed by the j ury 
 like that of other witnesses. United States v. Freeman, 4 Mason, 505. 
 
 (1) See infra, eh. 3. 
 
 For this reason the declarations of a person of weak and feeble understanding, who 
 cannot talk, cannot be received in evidence. He must be capable of testifying and sworn 
 as a witness, otherwise his account of the trahsaction cannot be shown in evidence. The 
 People v. McGee, 1 Denio Rep. 19. The witness must speak directly to the facts : if he 
 states that he told a certain person certain facts, such statement is not to be taken as 
 evidence of those facts. Harding v, Barney, 7 Bosw., 853. , 
 
 (2) Major Campbell's Case.cited by Parke, B., in Bartlett v. Smith, 11 M. & W. 486. 
 Qy. S. C. cited by Lord EUenborough, in R. v. Hucks, 1 Stark. R. 523. In R. v. Wood- 
 cock, ILeach C. C. 504; S. C, cited 1 Stark. R. 533, in notis, Eyre, C. B., is said to have 
 left the question to the j ury. 
 
 To render the dying declarations of deceased admissible- in evidence, it must be shown 
 that he was actually in a dying condition, and conscious of the fact, when they were made. 
 Campbell v. The State, 11 Geo. 353. It is the apprehension of immediate death which 
 renders his declaration competent evidence. The State v. Tilghman, 11 Ired-. 518. Such 
 testimony is admissible, notwithstanding the " prisoner's right to be confronted with the 
 witnesses against him." Green v. The State, 13 Mis. 382. 
 
 (3) See by Alderson, B., in Bartlett v. Smith, ut supra, 486. 
 
 The party seeking to prove, the contents of a lost paper must exhaust all the means of 
 discovery which are accessible to him, and suggested by the nature of the case. Harper 
 v. Scott, 13 Geo. 125. The necessary preliminary evidence of loss depends very much 
 upon the nature of the instrument as well as the circumstances of the case. Waller v. 
 The Eleventh School District, &c., 22 Conn. R. 326. When it is in the possession of a 
 third person residing out of the jurisdiction of the court, its contents may be proved 
 without previous notice to produce it, where it cannot be presumed to be in the possession 
 of the opposite party. Shepard v. Giddings, 22 Conn. R. 383. 
 
 (4) Bartlett v. Smith, ut supra. 483. 
 
 (5) Doe d. Jenkins v. Davies, 10 Q. B. 314. 
 
 (6) Per Cur. 10 Q. B. 323. 
 
 In like manner where the plaintiff seeks to establish his case by introducing Ma books 
 of aceoimt, he must first prove by witnesses who have dealt and settled with him, that he 
 
6 Of the Province of the Judge [ch. i. 
 
 The question, whether an ancient document is produced from the proper 
 custody, is a preliminary question to be decided by the judge. (1) In like 
 manner, where it is proposed to give in evidence declarations or admissions 
 made by a party to the suit, and a question arises as to the identity of the 
 party making such declarations, that question is a preliminary one for the 
 decision of the judge. (2) 
 
 Neither the admissibility nor the effect of evidence will be altered by 
 the circumstance that the fact which the judge is to decide as a condition 
 precedent, is the same fact that is to be decided by a jury on the 
 *7 issue : *as, where the declarations of an agent are admissible, he may 
 first prove to the satisfaction of the judge that he is an agent, and 
 his evidence therefore admissible, though the question at issue turns upon the 
 fact whether he be agent or not, and the jury have ultimately to decide that 
 question. (3) 
 
 The law excludes some descriptions of evidence as wholly improper to be 
 submitted to the jury, and rejects the testimony of certain persons, who are 
 on this account termed incompetent witnesses. Where the question as to 
 the admissibility of evidence depends upon oral testimony, such testimony 
 must necessarily be given in the hearing of the jury ; but where it depends 
 upon written evidence, the proper course appears to be, that the writing 
 should not be read aloud, but that it should be handed to the judge for his 
 consideration. (4) 
 
 The rules respecting the incompetency of witnesses are chiefly founded on 
 the consideration, that, in the generality of instances, the testimony of those- 
 witnesses, whom the law deems incompetent, would mislead juries ; and it is 
 obvious that the propriety of the exclusion in each particular case must be 
 judged of, according to the constitution of the tribunal to which the evidence 
 is submitted, and with reference to the mode of proceeding before it. For 
 this purpose, it is necessary to refer to the difference which exists between 
 judicial investigations and the ordinary transactions of life, more especially 
 with regard to the space of time allowed for decision, the temptations to 
 deceive, the facilities of deception, and the consequences of deciding in- 
 correctly. 
 
 There are three cases, in which a witness is deemed incompetent to give 
 any evidence at all, viz: 1st, When the witness labors under a defect 
 of understanding ; 2dly, Where he refuses to take an oath, or from defect of 
 religious principles does not acknowledge its sanction ; and 3dly, Where he 
 is interested in the. matter in issue, either as a party to the action, or as being 
 the person in whose immediate behalf the action is brought or defended. 
 
 keeps honest and fair books of account, that the book presented is a book of original 
 entries, that some of the articles charged have been delivered, and that he kept no clerk 
 at the time the account was accruing. Vosburg v. Thayer, 12 John. Rep. 461 ; Linnell v. 
 Sutherland, 11 Wend. 568. This preliminary evidence being given, the books must bo 
 offered without condition (Winants v. Sherman, 3 Hill R. 74), must be Scrutinized with 
 care, and received with great caution. And this preliminary or introductory evidence is 
 addressed to the court, to enable it to determine whether the books of account shall be 
 received as evidence at all. Larue v. Rowland, 7 Barb. R, 107. If the books are im- 
 peached, as unworthy of credit, it is the duty of tlie court to reject the evidence as 
 incompetent. Coggswell v. Dolliver, 3 Mass. R. 217 ; Eastman v. Moulton, 3 N. Hamp. R. 
 156. The ground on which books are received in evidence, namely, from the necessity 
 of the case,, renders it questionable whetlier they are now admissible, since the passage of 
 the act allowing parties to the suit to be sworn as witnesses in their own behalf. 
 
 See Conklin v. Stamler, 3 Hilton R. 443 ; overruled, holding books of account admissi- 
 ble as formerly, in Tomlinson v. Borst, 30 Barb. 43 ; and see ^osj, note 108. 
 
 (1) Swinnerton v. Stafford (Marq.), 3 Taxxnt. 91 ; Michell v. Rabbetts, cited Ibid. Meath 
 (Bp.) V. Winchester (Marq.), 8 N. C. 188, 198. 
 
 (2) Corfield v. Parsons, 1 C. & M. 730. 
 h) By Brie, J., 10 Q. B. 830. 
 
 (4) Smith V. Sleap, 1 Car. & Kir 48. 
 
CH. I.] As to the Admissibility of JEhidence. 7 
 
 Every person not affected by any of these objections, will now be competent 
 to give evidence. (1) 
 
 *8 *Until a very recent period, there were two other causes of incom- 
 petency in a witness, viz : 1st, Where his character was infamous 
 
 in consequence of conviction of some criine; and 2dly, "Where he was 
 
 interested to any extent, no matter how trifling, in the matter in issue. 
 
 This latter class included the one thirdly above enumerated, which is still 
 incompetent. The expediency of the rule establishing these two 
 
 *9 causes of incompetency, *that namely, arising from conviction of 
 crime and that arising from general interest in the cause, has been 
 
 from time to time, and especially of late years, much questioned ; but both 
 
 these grounds of incompetency have been at length entirely abrogated by 
 
 the statute 6 & 7 Vict. c. 85, (Lord Denman's Act,) the provisions of which 
 
 will be more fully adverted to hereafter. 
 
 (1) Note 3. — There is still another class of cases where an objection to competency will 
 lie, grounded upon principles of policy. 
 
 A juror is incompetent to prove the misconduct of his fellow jurors, in order to impeach 
 the verdic'r. State v. Freeman, S^Conn. Rep. 348. So, a grand juror, to prove that a 
 witness, who has been examined before the petit jury, swore differently before the grand 
 jury. Imlay v. Rogers, 3 Halsted, 347. But a juror may be admitted to prove improper 
 attempts, by a party, to influence the minds of the jury. Denn ex dem. Chews v. Driver, 
 Coxe, 166. And in New York, by statute, a grand j uror is bound to testify as to any con- 
 sistency or inconsistency between what a witness swore before the grand and petit jury ; 
 and to disclose testimony given laefore the grand j ury, on a complaint against or trial of 
 a witness for perjury ; but is expressly restrained as to the manner in which he or any of 
 his fellows voted, or what were their exprgssed opinions. 2 R. S., paTt 4, ch. 2, tit. 4, 
 § 31, p. 724. 
 
 A judge of this State, who takes the acknowledgment or proof of a deed in Canada,^ 
 competent to prove where it was done, though not compellable to answer a question iinS 
 peaching his conduct as an officer. Jackson v. Humphrey, 1 John. R. 498. 
 
 An arbitrator is a competent witness to show the time when and the circumstances in 
 which he made his award. Woodbury v. Northy, 3 Greenl. Rep. 85. See post p. 166. 
 
 Whether slaves were witnesses at common law does not seem settled. In this country 
 they are generally incompetent by statute. 
 
 In the Duke of Norfolk's Case (1 St. Tr. 113) the duke objected to the Bishop of Ross 
 and others as incompetent witnesses against him, they being strangers, and cited Braeton. 
 Oallin (who was then chief justice of England) answered: " Braeton, indeed, is an old 
 writer of our law, and by Braeton he may be a witness ; a stranger, a bondman may be a 
 witness. Ask you all the judges here." The book proceeds : " And the judges aiBrmed 
 that he may." They were all present, as this was a trial before the lord high steward. 
 So it seems to have been declared, or at least assented to, by men who had deliberated 
 upon and understood the subject, and that too in the 14 Eliz., when villenage was but 
 recently if yet entirely done away, that a bondman (slave) may be a witness at the com- 
 mon law. Macnally's Ev. 156, S. P. But in Respublica v. Mulatto Bob (4 Dall. 145, note 
 1), M'Kean, Ch. J., said it was a settled point at common law that a slave could not be a 
 witness, because of the unbounded influence of his master over him, which was at least 
 equal to duress ; that the act of assembly was in aid of the common law. Formerly there 
 was a statute of New York forbidding a slave to be a witness, except for or against 
 another slave in criminal cases. 2 R. L. 307, sess. 36, ch, 88, § 19. But slavery is now 
 abolished in this state (1 R. S. 659, § 16), and all slaves coming here, except fugitives from 
 anoRier of the United States, are declared free. I R. S. 835, 1836, 3d ed. There is now, 
 however, no statute regulation as to the competency of slaves to testify — at least, none 
 which the editor has found in the new statutes. This is left as at common law. A free 
 black man was always competent to prove facts happening while he was a slave. Qurnee 
 V. Dessies, 1 Johh.'Eep. 508. So a slave manumitted by an infant, for such act is not 
 void, but voidable only on the infant coming of age — a contingency which shall be 
 allowed to go only to his credibility. Rogers' Ex'rs v. Berry, 10 Id. 133. But in Mary- 
 land a free black man is an incompetent witness in a suit between free white Christiana 
 Rusk V. Sowerwine, 3 Har. & John. 97. So in South Carolina. White v. Helmes, 1 
 M'Cord, 430. 
 
 The condition of the American slave seems to be quite different from the villein, or 
 English slave, who might exercise many of the powers -of a freeman. Vid. 4 Reeve's 
 Hist. 309, 2d ed. 'I hey were considered as persons. The American slave is considered as 
 a thing. Vid. Chinn v. Repass, 1 Monroe, 25, 28. He is on the footing of the Greek or 
 Roman slave. Per Ch. Dessaussure, in Bynum v. Bostick, 4 Des. 267. The condition of 
 the Roman slave may be seen in Tayl. Elem. Civ. Law, 429, which is transcribed in Coop 
 
8 Of Incompetency [cH. II. 
 
 CHAPTEK II.' 
 
 OP INCOMPBTENCT FEOM DEFECT OE trjSrDEESTANDINQ. 
 
 It is proposed now to examine separatelji the several causes of incompe- 
 tency which have been mentioned. And l8t,.of incompetency from defect 
 of understanding. 
 
 Persons who have not the use of reason are from their infirmity utterly 
 incapable of giving evidence, and are therefore excluded as incompetent 
 witnesses. Incompetency from defect of understanding may arise, where 
 there is a natural deficiency of the intellect, as in the case of idiots ; or 
 where the intellect has become disordered, as in the case of insane persons ; 
 or where the intellect is immature, as in the case of children. 
 
 An idiot is one who, from his nativity, is by a perpetual infirmity non 
 compos mentis ;(\^ such a person is wholly incapable of giving evidence. 
 But persons born deaf and dumb, (although it has been said that in pre- 
 sumption of law they are to be considered as idiots,) (2) are not on 
 *10 this *account incompetent: and if it appear, that they have suffi- 
 cient understanding and know the nature of an oath, thepmay give 
 evidence by signs, through the medium of an interpreter; (3) or if they 
 
 Juat. 411, wliere the author also notices the condition of the Greek slave. It is said, 
 however, by Johnson, J., in Hall v. Mullin (5 Har. & John. 193), that the condition of 
 slaves in Maryland depends neither on the civil nor feudal law exclusively, but may per 
 haps rest in part on both, subject to changes in the state law. 
 
 A man charged as putative father of a bastard child, by a mother of the mixed blood, 
 
 cannot be convicted by her testimony, as she is excluded from testifying by a proper con- 
 
 ""^liruction of the North Carolina statute. The State v. Barrow, 3 Murph. 121. And see 
 
 Williams v. Blincoe, 5 Litt. 171 ; Tumey v. Kjiox, 7 Monroe, 91 ; Gray v. The State of 
 
 Ohio, 4 Hamm. Ohio Rep. 353. 
 
 (But it has been held, that the declarations of a slave in respect to his health are 
 admissible, to show the effects of a blow upon his head (Biles v. Holmes, 11 Ired. 16) ; 
 and the general rule undoubtedly is that slaves are not competent witnesses.) 
 
 It may also be proper to mention here another case, which does not range itself under 
 any of the heads in the text. It lias been seriously questioned whether, where a single 
 judge constitutes the court, his testimony is receivable ; and it would seem not to be. 
 Ross V. Bughler, 3 Mart. Lou. Rep. (N. S.) 312. See also People v. Miller, 2 Parker 
 C. R. 197. 
 
 (1) Co. Lit. 247, a. 
 
 Note 4. — Livingston v. Kiersted, 10 John. Rep. 362. When a witness is objected to as 
 incompetent on the ground of mental derangement, the party objecting has the right to 
 call witnesses and prove the fact. The want of reason renders the person incompetent ; 
 but this incapacity must be shown to the court by proof, like any other charge of incom- 
 petency. But when a person is called as a witness, who is at the time in a state of 
 intoxication, the court have the power to decide from their own view of the situation of 
 the witness offered, whether he be intoxicated to such a degree that he ought not to be 
 heard. Hartford v. Palmer, 16 John. Rep. 143. 
 
 A person totally deprived of memory or understanding, or who is suffering under a 
 temporary privation of them when produced to be sworn, is not an admissible witnijps. 
 Not having the present use of his faculties, he is not capable of retaining in his memory 
 the facts or events in relation to which he is called to testify, nor is he capable of taking 
 upon himself the obligation of an oath. But if he have a present capacity, he is not 
 incompetent, though he has been judicially declared an habitual drunkard, and his estate 
 committed to trustees. Gebhard v. Shindle, 15 Serg. & Rawle, 235. It is enough if he be 
 competent at the time of examination. Id. 238. And it is sufficient to exclude him, if 
 he be at the time drunk, insane, an idio*;, or a lunatic. Ellis, J., in Phebe v. Prince, 
 Walk. Rep. 131. The party objecting must, in general, prove the incompetency of the* 
 witness (Tlie State v. Holloway, 8 Blackf. 45) ; and it has been held that he cannot prove 
 the witness's intemperate habits in order to impeach him (Thayer v. Boyle, 30 Maine R. 
 476) ; and that it is no objection to the competency or credibility of a witness that he is 
 subject to fits of derangement, if he is sane at the time of giving testimony. Evans v. 
 Hallock, 7 Wlfeat. 453 ; James v. Stonebanks, Code Rep. 257. 
 
 (3) 1 Hale P. C. 34. 
 
 (3) Rushton's Case, 1 Leach. C. C. 455. 
 
CH. II.] From Defect of Understanding. 9 
 
 are able to write, their testimony will be taken in writing, as the more 
 certain mode.(l) A person, however, who is born deaf, dumb and blind, is 
 still looked upon by the law as in the same state as an idiot, being supposed 
 incapable of any understanding, as wanting all those senses which furnish 
 the human mind with ideas. (2) 
 
 Persons who have become p^manently deranged in intellect, are incom- 
 petent ; but lunatics,: and persons afflicted only with occasional fits of 
 insanity, although incompetent while under the influence of their malady, 
 may yet be witnesses in their lucid intervals, if it be satisfactorily shown 
 that they have sufficiently recovered the use of their understanding. (3) 
 
 There is no precise age fixed, at which children are excluded from giving 
 
 evidence. At one time, indeed, their age was considered as the criterion of 
 
 their competency, and it was a general rule that none could be admitted 
 
 under the age of nine years, very few under ten; (4) which in 
 
 *11 *some cases would operate to deprive them of the protection of 
 
 Note 5. — Though the person cannot talk, he may be sworn as a witness if it appear 
 that he is able to communicate facts and circumstances by arbitrary signs and motions, 
 and has sufficient understanding. But the declarations of an injured female, of sufficient 
 age (on an indictment for rape), who cannot talk, but communicates her ideas to others 
 by signs, and Is a competent witness though of weak understanding, cannot be given in 
 evidence by the prosecution to prove the offense committed. The People v. McGee, 1 
 Denio Rep. 19. Declarations made by her immediately after the alleged offense may be 
 proved, aftfer she has been sworn and given her testimony ; not as confirmatory of the 
 truDh or falsity of her evidence, but as affecting the credibility of her testimony. The 
 rule is, that when the person upon whom the offense is charged to have been com- 
 mitted, is incompetent, by reason of infancy, idiocy, insanity and the like, to be sworn 
 and give evidence as a witness, no evidence of the assertions or declarations of such • 
 person, descriptive of the offense or the offender, can be received In evidence. Reg. v. 
 Guttridge, 9 Cffirr. & Payne, 471 ; Reg. v. Megson, Id. 438 ; 1 Denio R. 34. 
 
 (1) Morrison v. Leonard, 3 Car. & P. 137. 
 
 (3) 1 Bl. Com. 304 ; 3 Steph. Com. 530. 
 
 (3) Com. Dig. tit. Testmoigne, A. 1. 
 
 (4) R. V. Travers, 3 Stra, 700, and cases in Kast P. C. 442 ; 1 Hale P. C. 802; 3 Hale- P. 
 C. 3T^. See infra. 
 
 Note 7. — There is no particular age at which a witness must have arrived to render 
 him competent to testify ; if he appear, on examination by the court, to have a sufficient 
 sense of the wickedness of false swearing, he may be sworn, although of never so tender 
 an age, and the jury are to judge of his credit. Commonwealth v. Hutchinson, 10 Mass.. 
 Eep. 235 ; The King v. Rose Kelly, Macnally, 154 ; Swift's Ev. 46. In order to test the 
 capacity of infants to give evidenct, and their understanding of the nature and obligation' 
 of an oath, the cotot may examine them as to their religious knowledge or belief. 
 Jackson ex dem. Tuttle v. Gridley, 18 John Rep. 98 ; 3 Rev. Stat, of N. Y. 408,. § 89. If 
 the witness be fourteen years of age, he is not interrogated respecting his capacity, but 
 is presumed to have sufficient knowledge and discretion to be sworn, unless some circum- 
 stances creating suspicion be shown. Den v. Van Cleve, 3 South. Rep. 589; State v. 
 Doherty, 2 Tenn. Rep. 80. But if he is under that age, it is a subject of discretion in the 
 court to admit him or not. Van Pelt v. Van Pelt, 3 Penning Rep. 657. The testimony 
 of an infant seven years old, corroborated by circumstances, has been held sufficient to 
 justify a conviction for a capital offense. State v. Le Blanc, 1 Const. Rep. 354. But a 
 child only four years old cannot have that idea of a future state which would make it 
 a competent ^vitness. Rex v. Pike, 3 Carr. & Payne, 598. The credit of a witness, which 
 is greatly impaired by his age, is to be judged of by the jury from his manner of testify-, 
 ing and other circumstances. Commonwealth v. Hutchison, 10 Mass. Rep. 325 ; State v. 
 Doherty, 3 Tenn. Rep. 80. ' 
 
 Note 8. — In one case, where a child nine years old, though very intelligent, did not 
 understand the nature of an oath nor the moral penalty of false swearing, the court 
 instructed her on the spot, and then allowed her to be sworn. Jenner's Case, before 
 Radcliff, Mayor, 3 C. H. Rec. 147, 148, 149. 
 
 A child eight years old being called, it appeared that, to within sixteen weeks of the 
 trial, she had never heard of a God, or of a future state of rewards and punishments ; 
 that she never prayed or knew the nature of an oath ; but since, » clergyman had twice 
 visited and instructed her in the nature of an oath. Patteson, J., rejected her, saying he 
 must be satisfied that she felt the binding obligation of an oath from the general course 
 of her religious education ; that the effect of an oath upon the conscience of the child 
 should arise from religious feelings of a permanent nature, and not merely from inetruC- 
 
 VOL. I. 2 
 
10 Of Incompetency [cH. rr. 
 
 law against acts of violence. (1) A more reasonable rule has since teen 
 adopted, and the competency of children is now regulated, not by their age, 
 but by the degree of understanding which they appear to possess. In 
 Brazier's Case, on an indictment for assaulting aa infant five years old with 
 intent to ravish her, all the judges agreed, that children of any age might 
 ^e examined upon oath, if capable of distinguishing between good and evil, 
 and possessing sufficient knowledge of the nature and consequences of an 
 oaffi'i but that they could not in any case be examined without oath. (2) 
 This % now the established rule, as well in criminal as in civil cases, and it 
 applies equally to capital offenses and to offenses of an inferior nature. It 
 may be presumed, however, that this rule, that a child cannot be examined 
 without oath, would not be strictly applied in cases where the legislature 
 has permitted evidence to be given upon affirmation, as in the instances of 
 Quakers, Separatists, and some other non-conformists. In such cases it 
 cannot be doubted that a child, if shown to have been duly educated in the 
 religions tenets of its parents, would be permitted to make affirmation, upon 
 the same principle as* the parents themselves. 
 
 According to this rule, the admissibility of children depends not merely 
 upon their possessing a competent degree of understanding, but also, in 
 part, upon their having received such a degree of religious instruction as 
 not to be ignorant of the nature of an oath, or of the consequences of 
 *12 *falseliood. In one case, where a child aged eight years was called 
 as a witness, who, up to the time of the event to which she came to 
 speak, had received no religious instruction, nor had ever even heard of a 
 God ; and who, in the interval before the trial, a period of about sixteen 
 weeks, had been twice visited and instructed by a clergyman as to the 
 nature and obligation of an oath, yet, at the time of the trial, appeared still 
 to have no real understanding on the subject of religion or a future state, 
 Patteson, J., rejected her testimony. (3) 
 
 In criminal cases, where a child, who is a necessary witness for the pros- 
 ecution, appears not sufficiently to understand the nature and obligation of 
 an oath, it is competent to the judge to postpone the trial, that the child 
 may be in the mean time properly instructed. (4) But an application to 
 postpone the trial upon this ground ought properly to be'made before the 
 child is examined by the grand jury ; at all events before the trial has com- 
 menced ; for if the jury are sworn, and the prisoner is put upon his trial 
 before the incompetency of the witness is discovered, the judge cannot dis- 
 charge uhe jury, but should direct an acquittal. (5) 
 
 The postponement of a trial for this purpose rests entirely in the discre- 
 tions confined to the nature of an oath recently communicated for the purpose of the trial. 
 Rex V. Williams, 7 Carr. & Payne, 320. (But in this case, it appeared clearly that the 
 cluld did not comprehend the nature of an oath, nor rightly apprehend what was meant 
 by a future state. In Regina v. Perkins, (88 Eng. Com. Law Rep. 168,) the dying declara- 
 tioas of a boy a little over ten years of age were received in evidence, it appearing he was 
 aware that he would be punished if he stated what was untrue, and that he was not 
 likely to live till morning. 9 Carr. & P. 895. The age of the child is immaterial ; but if 
 ho be of tender years, it is the duty of the court to examine him aa to his knowledge of 
 the nature and obligation of an oath. The People v. McNair, 81 Wend. 608.) 
 
 (t) B. N. P. 293. 
 
 (2) 1 Leach C. C. 199 ; 1 East P. C. 443 ; B. N. P. 293. See also R. v. Perkin, 2 Moo. C. C. 
 139 
 
 (8) R. V. Williams, 7 C. & P. 330. 
 
 (4) 1 Lsach, 480, n. 
 
 The judge may, in his discretion, postpone the trial, in order that the witness may be 
 instructed as to the nature of an oath ; but where the child is wholly destitute of religious 
 education, he cannot be rendered competent by being superficially instructed just before 
 a trial, with a view to qualify him ; and the current opinion is against the practice 
 Powell's Law of Ev. 19. 
 
 (5) R. V. Wade, 1 Ry. & Mo. C. C. 86. In this case the witness was an advU ] 
 of Bufflciout intellect, but wholly without religious instruction. 
 
CH. II.] From Defect of Understanding. 11 
 
 tion of the judge. In a recent case,(l) where a prisoner was indicted for 
 committing a rape upon a girl under six years of age, Pollock, C. B., refused 
 to postpone the trial in order that the child, who appeared to be wholly- 
 unacquainted with the nature of an oath, might receive proper r^igious 
 insti-uction, saying, "I can conceive that there may be ^ cases where the 
 intellect of the child is much more ripened, as in the case of children of niijif, 
 ten or twelve years old, for example, where their education has been so 
 utterly neglected that they are wholly ignorant on religious subjects. * In 
 those cases a postponement of "the trial may be very proper ; but where the 
 infirmity arises from no neglect, but from the child being too young to have 
 been taught, (2) I doubt whether the loss in point of memory would not more 
 than countervail the gain in point of religious instruction. I lay down no 
 general rule, as there may be cases where a postponement would be proper." 
 In a still later case, (3) where a father was charged with the violating of his 
 daughter, aged twelve, Alderson, B., refused to postpone the trial for the 
 purpose of her being taught the nature of an oath, stating that all the 
 *13 judges were now *of opinion that it was an incorrect proceeding ; that 
 it was like preparing or getting up a witness for a particular purpose, 
 and on that ground was very objectionable. (4) 
 
 Where a child is unfit to be sworn, it follows, as a necessary consequence, 
 that any account of the transaction, which it may have given to others, 
 ought not to be admitted. On an indictment, therefore, for a rape on a 
 child five years old, where the child was not admitted as witness, but an 
 account of what she had told her mother about three weeks after the trans- 
 action, was given in evidence by the mother, and the jury convicted the 
 prisoner, principally, as was supposed, on that evidence, the judges, in a 
 case reserved for their opinion, thought the evidence clearly inadmissible, 
 and the prisoner was accordingly pardoned: (5) for the principle of the 
 admissibility of such a statement is, that it is confirmatory of the testimony 
 of the witness. In Brazier's case, (6) a different rule was laid down, but at 
 that time the law was not so well settled as it has since been. (7) 
 
 With regard to the weight and effect of the testimony of children. Sir 
 W. Blackstone observes,(8) " that when the evidence of children is admitted, 
 it is much to be wished, m order to render the evidence credible, that there 
 should be some concurj-ent testimony of time, place and circumstances, in 
 order to make out the fact ; and that a conviction should not be grounded 
 on the unsupported accusation of an infant under years of discretion." In 
 many cases, undoubtedly, the statements of children are to be received with 
 great caution ; but it is clear a prisoner may be legally convicted upon such 
 
 (1) R. V. Nicholas, 2 C. & Kir. 246. 
 
 (2) See R. v. Pike, 3 C. & P. 598. 
 
 (3) R. V. Hall, 0. B., 30 Nov. 1849. 
 
 (4) The prisoner was in consequence acquitted. By the strict application of this rule, 
 a parent by neglecting his moral duty as to the education of his child, may thus obtain 
 an immunity for the commission of a heinous crime. 
 
 (5) R. V. Tucker, 1808, MS. ; R. v. Guttridge, 9 C. & P. 472 ; R. v. Megson, Ibid. 430 ; R. 
 V. Nicholas, 2 C. & Kir. 436. 
 
 Declarations as to the health or physical condition of the child may be admissible. 
 Biles V. Holmes, 11 Ired. 10. But such declarations cannot be proved to establish the 
 oflense. The People v. McQee, 1 Denio R. 19. 
 
 (6) 1 Leach C. C. 199 ; Svpra, p. 11. 
 
 (7) See by Parke, B., in R. v. Guttridge, ut supra. 
 
 (8) 4 Com. 214. i 
 Whether the child should be received as a witness, is for the court to decide ; but the 
 
 weight and credibility of his testimony is to be determined by the jury, as in other cases. 
 And since no religious opinions will disqualify a person to be sworn as a witness in this 
 state, the true inquiry is whether the child understands the nature of an oath, or has 
 sufficient intelligence to understand the consequences of false swearing. If that appears 
 affirmatively, the child should be sworn, and his evidence submitted to the jury. See 
 Constitution of N. Y., Art. 1, § 3. 
 
12 Of Incompetency: [ch. in. 
 
 evidence alone and unsupported ; and whether the account of a child requires 
 to be corroborated in any part, or to what extent, is a question exclusively 
 for the jury, to be determined by them on a review of all the circumstances 
 of the ease, and especially of the manner in which the evidence of the child 
 has been given. 
 
 , It may be observed, the preliminary inquiry, usually made for asoer- 
 *14 *taining their competency, is not always of the most satisfactory 
 nature, and sometimes is of such a description that, merely by a very 
 slight practicing of the memory, a child might be made to appear compe- 
 tent and qualified as a witness. The inquiry is commonly confined to the 
 ascertaining of the fact, whether the child has a conception of Divine punish- 
 ment being a consequence of falsehood ; it seldom extends so far as to 
 ascertain the child's notions of the nature of an oath, and scarcely ever 
 relates to the legal punishment of perjury. It has been held, however, that 
 the effect of the oath on the conscience of a child should arise from religious 
 feelings of a permanent nature, and not merely from instructions confined 
 to the nature of an oath, which have been communicated with reference to 
 the trial. (1) Independently of the sanction of an oath, the testimony of 
 children, after they have been subjected to cross-examination, is often 
 entitled to as much credit as that of grown persons ; what is wanted in the 
 perfection of the intellectual faculties, is sometimes more than compensated 
 by the absence of motives to deceive. 
 
 In a late case, (2) Wilde, C. J., is reported to have said, that it would be 
 always desirable, where a person of weak intellect is examined before a 
 magistrate in a case of felony, that the magistrate's clerk should take down in 
 the depositions the questions put by the magistrate, and the answers given 
 by the witness, as to the capacity of the latter to take an oath. In that case^ 
 the witness, who was twenty-eight years old, was of weak intellect, and a t 
 the trial appeared not at all to understand the nature of an oa,th^ nor to have 
 an idea of a future state ; but the depositions were in the usual form, and 
 did not show that any inquiry had taken place into the competency of the 
 witness in point of intellect. 
 
 CHAPTER in. 
 
 OF INCOMPETENCY PEOM DEFECT OF KELIGIOUS PEINCIPLB. 
 
 Witness must he sworn. It is an established rule, that all witnesses who 
 are examined upon any trial, civil or criminal, must give their evidence 
 under the sanction of an oath. This rule is laid down as an acknowledged 
 
 proposition by some of our earliest writers; (3) and it appears to be 
 *15 of universal application, *except in the few cases in which a solemn 
 
 afiirmation has been allowed by statute in the place of an oath. No 
 exemption from this obligation can be claimed in consequence of the 
 rank or station of a witness. A peer cannot give evidence unless 
 sworn; (4) and the same appears to be the case in regard to the king him- 
 
 (1) R. V. Williams, 7 C. & P. 330. 
 
 (2) R. V. Painter, 3 C. & Kir. 319. 
 
 (3) Shep. Abridg. tit. Tryal. 
 
 (4) Ld. Shaftesbuiy v. Ld. Digby, 3 Keb. 631 ; R. v. Ld. Preston, 1 Salk. 278. See also 
 How. St. Tr. 773, n.; 7 Id. 874, 1458 ; 11 Id. 459 ; 16 Id. 1352. But a peer may put in his 
 answer to a biUin chancery upon his honor (Meers v. Ld. Stourton, 3 Salk. 512 ; 8. C, 1 
 I^. Wms. 146) ; in the same manner as he gives his verdict in the House of Lords ; 3 Inst. 
 49. 
 
CH. III.] From Defect of Beligious Principle, 13 
 
 self,(l) although in one case King James the First certified to the cTiancellor, 
 under his sign manual, the substance of the promise made by the defendant to 
 the king, and the certificate was admitted without objection. (2) But Willes, 
 C B.,(3) states that, except in that case, the king's certificate, under his sign 
 manual, has always been refused. (4) The rule also holds even in the case of a 
 judge,(5) or juryman,(6) who happens to be cognizant of any fact material to 
 be communicated in the course of a trial. And although the jury are entitled 
 to use that general knOwldge, which any man may bring to the subject, (as in 
 the instance of the value of any article,) yet if any one of the jurors has any 
 particular knowledge on the subject, arising from his being in a certain trade 
 pr otherwise, he ought to be sworn and examined as a witness. (7) 
 
 A striking exception to .this rule formerly prevailed in the case of witnesses 
 for prisoners accused of treason or felony, who were not permitted to give 
 evidence upon oath ; but this unreasonable and unjust distinction was 
 abolished soon after the revolution. (8) 
 
 At one time it was thought that a child, who was incapable of understand- 
 ing the nature of an oath, might be examined without being sworn, (9) but 
 it IS now settled, as shown in the preceding chapter, that the stateriient of a 
 child cannot be received except upon oath, and that where the child is inca- 
 pable of understanding the nature and obligation of an oath, its testimony 
 will be rejected. 
 
 A witness in taking an oath, must be understood to make a formal and 
 soletnn appeal to the Supreme Being for the truth of the evidence 
 *16 which *he is about to give, and further, to imprecate the Divine ven- 
 geance on his head, if what he shall say be false. (10) 
 
 (1) 2 Roll. Ab. 686. 
 
 (S) Abigny v. Clifford, Hob. 313. 
 
 (3) In Omichund v. Barker, Willes' Hep. 550. 
 
 (4) See further upon this subject, Lord Campbell's Lives of the Chancellors, Vol. 2, pp. 
 SIO, 511. J 
 
 (5) Kel. 12, Trial of the Regicides. See also 5 How. St. Tr. 1181, n. 
 
 (6) Bennett v. Hertford (Hundred), Sty. 233 ; Fitzjaraes v. Moys, 1 Sid. 133 ; Kitchen v. 
 Manwaring, cit. And. 331, and see R. v." Sutton, 4 M. & S. 533, 537, n.; 6 How. St. Tr. 
 1612, n.; 18 Id. 133. 
 
 (7) B. V. Rosser, 7 C. & P. 648. See also Manley v. Shaw, C. & Marsh. 361. 
 
 (8) See 7 & 8 Wm. Ill, c. 3; 1 Ann. st. 2, c. 9. See 3 Inst. 79 ; 2 Hale P. C. 388 ; 4 Bl. 
 Com! 359. 
 
 (9) 1 Hale P. C. 684. 
 
 (10) By Lord Hardwicke, 1 Atk. 49. For the definition of an oath by our old writers, 
 Bracton, Britton, Fleta and others, see 1 Atk. 33. 
 
 Note 9. — A witness who declines swearing on the New Testament, though he profess 
 Christianity, may be allowed to swear oh the Old Testament, if he considers that mode 
 binding on his conscience, Edmunds v. Rowe, By. & Mood. N. P. Rep. 77. In New York, 
 the legislature have made the following provisions in regard to the ceremony, or form of 
 administering an oath : 1. The usual mode of administering an oath shall be by the per- 
 son who swears, laying his hand upon, and kissing the Gospels. 3 Rev. Stat. 407, § 83. 
 2. Every person who shall desire it, may be per4nitted to swear in the following form : 
 " Ton do swear in the presence of the ever living God ;" and while so swearing, such 
 person may, or may not, hold up his hand, at his discretion. Id. § 83. 3. Every person 
 who shall declare that he has conscientious scruples against taking any oath, or swearing 
 in any form, shall be permitted to make his solemn declaration or affirmation, in the 
 following form : " You do solemnly, sincerely, and truly, declare and affirm." Id. § 84. 
 4. Whenever the court Is satisfied that the witness has any peculiar mode of swearing, 
 connected with, or in addition to, the laying of his hand upon the Gospels, and kissing 
 the same, which is more solemn and obligatory in the opinion of the witness, the court 
 may adopt such mode of swearing him. Id. §.85. Every person believing in any other 
 than the Christian religion, shall be sworn according to the peculiar ceremonies of his 
 religion, if there be any such ceremonies, instead of the modes above prescribed. Id. 
 408, § 86. The court may interrogate the witness as to the form. Id. § 89. See Vail v. 
 Nickersou, 6 Mass. Rep. 263, and United States v. CooUdge, 2 Gall. Rep. 364. 
 
 Note 10. — This subject came before the Supreme Court of the state of New York, in 
 the case of Jackson ex dem. Tuttle v. Gridley, (18 John. Rep. 103.) In that case it was 
 
14 , Of Incompetency [ch. iil 
 
 An examination upon, oath implies that the witness should go 
 *17 *through a ceremony of particular import. But the particular form 
 
 or ceremony, which is quite distinct from the substance of the oath 
 itself, varies in different countries, and according to different forms of 
 religion. In England, the customary form in which an oath is adminis- 
 tered to Christians consists, as is well known, in calling upon the witness 
 to declare the truth, the whole truth and nothing but the truth, as he may 
 be helped by Go.d, and, requiring him to touch with his right hand and to 
 kiss the four Gospels. 
 
 Form not material, if oath binding on conscience. If the same form of 
 oath were required in all cases, without reference to the religious opinions 
 of witnesses, some might refuse to comply with it from conscientious 
 scruples, and their evidence would be excluded, while others might 
 attach no binding force to the prescribed form ; thus the object of 
 the law in requiring a religious sanction would be entirely defeated. The 
 rule of our law, therefore, is, that witnesses may be sworn according to 
 the peculiar ceiremonies of their own religion, or in such manner as they 
 
 H- 
 
 proved that a person offered as a witness, had within three months before the trial, often, 
 deliberately and publicly, declared his disbelief in the existence pf a God, and a future 
 state of rewards and punishments, and the rule adopted by the court was, that all who 
 did not believe in a God, or if they did, did not think that he would either reward or 
 punish them in the world to come, were incompetent witnesses, in any case, or under any 
 circumstances, because an oath could not be any tie or obligation upon them. In a sub- 
 sequent case, the true test of a witness's competency, on the ground of his religious 
 principles, is said to be, " Whether he believes in the existence of a God who will punish 
 him if he swears falsely.'' Butts v. Swartwood, 2 Cowen's Rep. 431. Within this rule 
 are comprehended those who believe future punishments not to be eternal. In The Peo- 
 ple V. Matteson, tried before Walworth, circuit judge (2 Cowen's Rep. 432, in note as), and 
 in an anonymous case, before Williams, circuit judge (3 Cowen's Rep. 572), it was held, 
 that all persons who believe in the existence of a God, and in future punishments by 
 him, either in this world, or in that to come, are competent witnesses. The same doctrine 
 is held by the Suj;reme Court of Massachusetts. Hunecomb v. Hunscomb, 15 Mass. Rep. 
 184. And this is the rule now established in New York by statute. 2 Rev. Stat. 408, § 87. 
 In Connecticut and Tennessee, a person who does not believe in the.obligation of an oath, 
 and in a future state of rewards and punishments, or any accountability after death, is 
 inadmissible as a witness. Curtis v. Strong, 4 Day, 51 ; S. C, Swift's Ev. 48 ; State v. 
 Doherty, 2 Tenn. Rep. 80 ; State v. Cooper, Id. 96. And within this rule a Universalist 
 is incompetent. Atwood v. Wetton, 7 Conn. Rep. 66. One witness had often declare(i he 
 did not believe in the existence of a God or a future state ; another had declared that 
 he did not believe in the latter, had read Tom Paine's works, and did not know whether 
 he (the witness) believed anything. Story, J., rejected both as incompetent. Wakefield 
 V. Ross, .5 Mason, 16, 18, 19, note. See Christian's n^Ote to 3 Bl. Com. 369, and Swift'p 
 Ev. 49, 50. 
 
 We have noticed, ante, the characjer of religious belief essential to a witness, and 
 the mode of proof. The courts in New Hampshire cited and adopted the principle of the 
 New York cases, cited in Norton v. Ladd, 4 New Hamp. Rep. 444. It was in proof by 
 third persons, that the witness had several times, and shortly before the trial, deliber- 
 ately disavowed his belief in the existence of a God. He was rejected as incompetent. 
 It was doubted in Ohio, whether a defect in religious belief should go to the competency 
 or merely the credibility of the witness. The objection ^as raised, and it was shown by 
 third persons, that the witness's creed, so far as collectible from his conversation, was as 
 follows : he said he did not believe in the existence of a God ; but added that he saw God 
 in trees, bushes, herbage, and everything he saw ; that a man would be punished for 
 falsehood by his conscience, and in this life only ; that a man is bound to speak true at 
 all times, and an oath imposes no additional obligation. The court held, that it was 
 unnecessary to inquire whether, in Ohio, the same rule should prevail as in England ; for 
 if it should, the witness was competent. Wright, J., said, the court thought his declara- 
 tions equivalent to an avowal of belief in the existence of a God. " He sees him in all 
 created nature." Easterday v. Kilborn, 1 Wright, 845, 846. A person who does not 
 believe in future rewards and punishments, but that our evil deeds will all be punished 
 in this world, and that we shall exist immortal in a future state, exempted from punish- 
 ment for deeds done in the body, is a competent witness. Parnandis v. Henderson, in 
 chancery before Ch. Desaaussure, Aug. 1827, South Car. Law Journal, 202. In New York 
 no witness is now incompetent on account of his religious belief. Const. Art. 1, § 3. 
 
CH. III.J From Defect of Religious Principle. 15 
 
 consider binding on their consciences. (1) Jews have accordingly heen 
 sworn in our courts, from a very early period, on the Pentateuch, and they 
 take the oath with the head covered. (2) A Mahometan is sworn upon the 
 Koran.(3) The deposition of a Gentoo has heen received, who touched 
 with his hand the foot of a Bramin. (4) A Chinese has been sworn by the 
 ceremony of his breaking a saucer, and declaring that if he did not speak ' 
 
 the truth his soul would be cracked like the saucer. (5) A Scotch 
 *18 *covenanter, and a member of the Kirk, have been allowed to take 
 
 the oath, by holding up their hands without kissing the book. (6) 
 Whatever be the form, the meaning of the oath is the same. It is 
 an appeal to God, calling upon him to witness what we say, and invoking 
 his vengeance, if what we say be false. (7) 
 
 The'same_ indulgence that is allowed in the case of different religions and 
 sects of religion, has also been extended to the conscientious scruples of 
 individuals, who have objected to be sworn in the manner usually adopted 
 by persons of their own religion or sect. Thus, in an old case, where 
 a witness, who was vice-chancellor of Oxford, refused to be sworn in the 
 usual form by laying his right hand on the book and kissing it, Glin, C. J., 
 
 (1) This was so at common law (see Omychund v. Barker, 1 Atk. 21), and it is now 
 expressly so enacted by stat. 1 & 2 Vict. c. 105. 
 
 (2) 1 Atk. 40, 43 ; WiUes, 543 ; Cowp. 389. 
 
 (3) Morgan's Case, 1 Leacli C. C. 64, by Gould, J., delivering tlie opinion of all tbe 
 judges ; Cowp. 390 ; Fachina v. Sabine, 2 Stra. 1104. 
 
 (4) See Omychvind v. Barker, 1 Atk. 21. 
 
 (5) K. V. Entrehman, C. & Marsh. 249 ; R. v. Alsley, O. B. Sess. 1804 ; Peake Evid. 141, 
 n. (oth. ed.) 
 
 (6) By Gould, J., in Mildrone's Case, 1 Leacli C. C. 459 ; Walker's Case, Id. 498 ; Mee v. 
 Beid, 1 Peake N. P. C. 22. 
 
 (7) Forma jusjurandi verbis difiert, re convenit; hunc enim sensum habere debet, ut 
 Deus invocetur. Grotius, L. 2, c. 13, § 10. ■ 
 
 Note 11. — (A person who does not believe in the existence of a God is an incompetent 
 witness. Thurston v. Whitney, 2 Cush. 104. But the objection to his competency should 
 be taken before he is sworn ; though his disbelief may be shown after he has testified, to 
 affect his credibility. The People v. M'Garren, 17 Wend. 460. And the incompetency 
 of the witness from defect of religious belief, may be shown by proving his conversations 
 or declarations on the subject. Barthelemy v. The People, 2 Hill R. 248. 
 
 It is not necessary that a person should believe in a future state of rewards and pun- 
 ishments to render him a competent witness. It is enough if he believes in the existence 
 of a God who will punish him if he swear falsely. Butts v. Swart wood, 2 Cowen R. 431. 
 And hence an infidel who believes in a God, and that he will reward and punish him 
 in this world, but does not believe in a future state, may be examined upon oath. 
 Omichund v. Barker, Willes, 550 ; 2 Cowen, 431.) 
 
 A witness cannot be compelled to declare. his belief (2 Revised Statutes of N. Y. 408, 
 § 88), but this may be proved by other witnesses. Id. Jackson ex. dem. Tuttle v. Gridley, 
 18 John. Rep. 98; Butts v. Swartwood, 2 Cowen's Rep. 431 ; Curtis v. Strong, 4 Day, 51 ; 
 Beardsley v. Foot, 2 Root's Rep. 399 ; Bow v. Parsons, 1 Id. 480 ; State v. Cooper, 2 Tenn. 
 Rep. 96. Slight or unguarded expressions will not, however, be sufficient to exclude a 
 witness. State v. Cooper, 2 Tenn. Rep. 96. After the incompetency of the witness 
 from defect of religious belief, is satisfactorily established, i)y proof of his declarations out 
 of court, he will not be permitted to deny or explain such declarations or his opinions, or 
 to state his recantation of them, when called to be sworn. But he may be restored to 
 his competency, on giving satisfactory proof of a change of opinion before the trial, bo as • 
 to repel any presumption, arising from his previous declarations of infidelity. Jackson 
 ex. dem. Tuttle v. Gridley, 18 John. Rep. 98 ; Curtis v. Strong, 4 Day, 51. In Wakefield 
 V. Boss, the defendant made out a case of defective religious belief against two witnesses, 
 when the plaintiff's counsel suggested that they might be personally examined ; but 
 Story, J., said the defendant's counsel were not bound to rely on the testimony of these 
 persons for proof of incompetency. Wakefield v. Ross, 5 Mason, 19, note. "The above 
 doctrines are, in substance, adopted by the Revised Statutes of New York. 2 R. S. 408, 
 § 88. But a person, apparently of weak understanding, may be examined as to the 
 extent of his religious knowledge. Id. § 89. See Swift's Bv. 49, 50, and Christian's note 
 to 3 Bl. Com. 369. 
 
 (In this State, no person is now rendered incompetent to be a witness on account of his 
 opinions on matters of religious belief. Art. 1, § 3 of the Constitution of 1846. And the 
 same rule has been adopted very generally in the other states.) 
 
16 Of Incompetency \c^ iii. 
 
 ruled, that he might be sworn by having the book laid open before him, 
 and holding np his right hand,(l) "In my opinion," said the chief 
 *19 *justice, "he has taken as strong an oath as any other witness." In 
 one case, a witness who professed Christianity, but objected to be 
 sworn on the Gospels, was allowed to be sworn on the Old Testament, on 
 his stating that he considered an oath so administered to be binding on his 
 conscience. (2) A Jew who has made no formal renunciation of Judaism, 
 but professes himself to be a Christian, may be sworn on the Gospels. (3) 
 And in a case where a new trial was moved for, on the ground that a 
 witness, who had been sworn on the Gospels in the usual manner, had since 
 been discovered to be a Jew, the Court of Common Pleas refused the rule, 
 and were unanimously of opinion that the oath taken was binding on the 
 witness, both as a moral and religious sanction. (4) 
 
 Religious belief. The law requires that the witness should acknowledge 
 the force of an oath in imposing a religious obligation upon him to speak 
 the truth. It is therefore essential to the admissibility of a witness, that 
 he should believe in the existence of a God, by whom truth is enjoined 
 and falsehood punished. Without such belief, one sanction, which the law 
 regards as a material security for truth, namely, the fear of Divine pun- 
 ishment invoked by the witness upon himself, is wanting. It is not suffi- 
 cient, that a witness believes himself bound to speak the truth from a 
 regard to character or to the common interests of society, or from a fear of 
 the punishment which the law inflicts upon persons guilty of perjury. (5) 
 Such motives have indeed their influence, but they are not considered as 
 afibrding a sufficient safeguard for the strict observance of truth : our law, 
 in common with the law of most civilized countries, requires the additional 
 security afforded by the religious sanction implied by an oath, and, as a 
 necessary consequence, rejects all witnesses who are incapable of giving this 
 security. 
 
 Atheists, therefore, and such infidels as profess not any religion that can 
 bind their consciences to speak truth, are excluded from being witnes- 
 ses. (6) Doubts formerly existed with respect to Jews and the inhabit- 
 ants of countries professing religions different from Christianity. Lord 
 Coke says generally, that it is an objection to a witness if he be an infi- 
 del, (7) under which denomination he intended to comprise Jews as well as 
 heathens. (8) And Sergeant Hawkins thought, that a witness who 
 *20 believed *in neither the Old nor the New Testament, was incompe- 
 tent. (9) But Lord Hale was of a different opinion, and strongly points 
 out the unreasonableness of excluding indiscriminately all heathens from 
 giving evidence. (10) All doubts on this subject have long siace been set 
 at rest, and it may now be considered as an established rule, that not only 
 Jews, but infidels of any country, believing in a God -who enjoins truth and 
 
 (1) Dutton V. Colt, 2 Sid 6. 
 
 (3) 1' dmonds v. Rowe, Ry. & Mo. N. P. C. 77. 
 
 (3) R. V. Gilham, 1 Esp. N. P. C. 285. 
 
 lA) Sells V. Hoare, 3 Bro. & B. 232. 
 
 (5) Rusliton's Case, 1 Leacli C. C. 455. 
 
 (6) Bui. N. P. 362 ; Gilb. Evid. 139 ; 1 Atk. 40, 45, 48. 
 
 (7) Co, Lit. 6, 6. 
 
 (8) 2 Inst. 500 ; 8 Inst. 165 ; 1 Atk. 43 ; Willes, 541. It was formerly laid down, on the au- 
 thority of Sir E. Coke, that excommunicated persona were not competent ; on the ground 
 that being excluded from the church, they could not be under the influence of any 
 religion. Att. Gen. v. Griffith, 2 Bulstr. 155. See B. N. P. 392 ; Gilb. Evid. 130, (6th ed.) 
 But this disability, if it ever existed, has been entirely removed by stat. 58 Geo. Ill, c. 
 137, S§ 2, 3, vifhich enacts that persons excommunicated shall in no case incur any civil 
 penalty or disability. 
 
 (9) Hawk. P. C. b. 2, c. 46, § 143. 
 
 (10) 3 Hale P. C. 379. 
 
CB- ni.] Mom Defect of Bdigims JPrinciple. 17 
 
 punighes falsehood, ought to be received as Adtnesses;{l) and they are to 
 be sworn, as we have already seen, according to the form -which is author- 
 ized by their country or their religion. 
 
 The only means of ascertaining the competency of a witness with refer- 
 ence to religious principle, is by examining the party himself The proper 
 mode of examining for this purpose, it is said, is not to question the witness 
 as to his particular opinions, but to inquire generally whether he believes in 
 the existence of a God and in a future state. (2) In a case before Buller, J., 
 where it was proposed to ask a witness, who had been sworn in the usual 
 way, whether he believed in the Gospels on which he had been sworn, the 
 question is said to have been overruled. (3) So in a recent case, where a 
 negro called as a witness stated that he was a Christian and had been bap- 
 tized, the judge would not allow any further questions to be put to him. (4) 
 But although a witness may not be questioned as to his particular religious 
 opinions, he may be asked, whether he considers the form of administering 
 the oath to be such as will be binding on his conscience. 
 
 The most correct and proper time for asking a witness whether the form 
 of administering the oath is such as will be binding upon his conscience, 
 is previous to the administration of the oath. But as it may occasionally 
 happen that the oath is administered in the usual form, unobserved by the 
 court or the counsel, the question in such case may properly be asked after- 
 wards. And if, in answer to the question, the witness shall declare in thte 
 affirmative, namely, that he considers the oath, taken by him, to be binding 
 upon his conscience, it would be irrelevant to ask further whether there be 
 any other mode of swearing that would be more binding than that which . 
 
 has been used. (5) If the witness says he considers the oath to be 
 *21 *binding upon his conscience, he affirms in effect, that in taking that 
 oath he has called the Supreme Being to witness that what he shall 
 say will be the truth, and that he has imprecated the Divine vengeance 
 upon his head if what he shall afterwards say is false ; and when this is 
 done, it would be perfectly unnecessary and irrelevant to ask any further 
 questions. (6) Such an acceptance of the oath not only imposes upon the 
 witness all its religious obligation, but, should he violate its sanctions, sub- 
 jects him also to the temporal penalties consequent on the crime of perjury. 
 And the fact of a witness having assumed a false name, and swearing m 
 the common form upon the Gospels, but discovered after the trial to be a 
 Jew, is therefore not a ground for a new trial. (.7) 
 
 The evidence of Quakers and members of other sects who refused to takfe 
 a formal oath in any shape, was for a long time held inadmissible. Before 
 the revolution, Quakers, who refused to take a legal oath, were treated as 
 obstinate offenders and subject to penalties. (8) These hardships were 
 removed by the Toleration Act, (9) which first allowed them to make a 
 declaration of their fidelity to the state, instead of taking an oath of alle^ 
 giance, and exenipted them from all pains and penalties on their making, if 
 required, certain other declarations there prescribed. And by another 
 
 (1) See Omiehund v. Barker, 1 Atk. 21 ; S. C, 1 Wils. 84 ; Willes, 538. 
 
 (2) It seems, however, that an infidel who believes in a God, and that he will reward 
 and punish him in this world, though he does not believe in a future state, may be ex- 
 amined upon oath. By Willes, C. J., Omiehund v. Barker, Willes, 530. 
 
 (8) R. V. Taylor, Peake N. P. 0. 11. 
 
 (4) R. v. Serva, 2 C. & Kir. 53, 56, before Piatt, B. 
 
 (5) Resolution of the judges, delivered by Abbott, C. J., in the proceedings on the Bill 
 of Pains and Penalties, August 34, 1820. In the case of the witness Qargiulo, p. 116 of 
 the printed evidence. 2 B. & B. 384. 
 
 (6) By Abbott, C. J., on the same occasion. 
 
 (7) Sells V. Hoare, 3 B. & B. 333. 
 
 (8) 13 Car. II, c. 1. 
 
 (9) 1 Wm. & M. c. 18, § 13. 
 
 Vol. I. 3 
 
18 Of Incompetency^ [cam. 
 
 statute, which passed about six years after,(l) their solemn affirmation in 
 courts of justice was admitted, in civil cases, to have the same effect as an 
 oath ; but they continued to be excluded from giving evidence in criminal 
 .cases(2) until a very recent peripd. This disability has now been entirely 
 removed by the legislature, (3) and Quakers and Moravians are now allowed 
 
 to give evidence upon their solemn affirmation in all cases, criminal 
 *22 *as well as civil. Their affirmation is to be of the same force and 
 
 effect as an oath in the usual form, in all cases where an oath is by 
 law required. (4) A similar statutory provision has been made in favor of 
 a religious sect called Separatists. (5) A still more recent statute(6) pro- 
 vides, that any person who has been a Quaker or Moravian, and who 
 entertains conscientious objections to the taking of an oatli, shall be allowed 
 to make solemn affirmation and declaration : in liea of taking an oath, as 
 fully as he might be allowed to do in case he still remained a member of 
 either of these denominations of Christians, and this affirmation or declara- 
 tion is made of the same force and effect as if an oath had been taken in. 
 the usual form. , 
 
 In a late case,('7) where a special juryman objected to be sworn, upon the 
 ground that he was of the pursuasion of a Quaker, though he was not a 
 member of the Society of Friends, Lord Abinger, C. B., allowed him to 
 affirm ; and it is to be presumed, he would have adopted a similar course in 
 the case of a witness. (8) 
 
 (1) 7 & 8 Wm. Ill, c. 34. 
 
 (2) See 8 Geo. I, c. 6 ; 23 Geo. II, c. 46, § 36. 
 
 (3) 9 Geo. IV, c. 33. 
 
 Note 12. — Under this statute, Quakers and Moravians are now competent in all cases, 
 on the same affirmation as is allowed in New York. One who was not a Quaker, refusing 
 to be sworn, on the ground of conscientious scruples, arising from a declaration formerly 
 made, that he would not take an oath, was committed for contempt, the liberty to affirm 
 being strictly confined to Quakers, by the laws and practice of Massachusetts. United 
 States V. Coolidge, 2 Gallis. 364. 
 
 (By 17 and 18 Vict. c. 135, § 20, it is enacted, " If any person called as a witness, or 
 required to make an affidavit or deposition, shall refuse or be unwilling, from alleged 
 conscientious motives, to be sworn, it shall be lawful for the court or j udge, or other pre- 
 siding officer or person qualified to take affidavits or depositions, upon being satisfied of 
 the sincerity of such objection, to permit such person, instead of being sworn, to make 
 his or her solemn affirmation or declaration." And this affirmation begins by declaring 
 the opinion of the witness that the taking of an oath is not lawful, and. concludes in very 
 nearly the same language used in this state. By another section of the act, a false affirma- 
 tion is declared the crime of perjury, to be punished in the same manner. § 89.) 
 
 (4) 3 & 4 Wm. IV, c. 49. 
 
 (5) 3 & 4 Wm. IV, c. 82. 
 
 (6) 1 & 3 Vict. c. 77. See Doran's Case, 3 Moo. C. C. 37. 
 
 (7) Emmett v. Norton, 8 C. & P. 506. 
 
 (8) Op Incompetency prom Conviction op Crime. — The former edition of this work 
 contained a chapter on this subject, laying down the general rule in these terms: The 
 conviction of an infamous crime, followed by j udgment, disqualifies a person from giving 
 evidence in our courts of justice ; and persons rejected for this cause, are said to be 
 incompetent on account of the infamy of their character. Vol. I, p. 14. Of the crimes 
 which incapacitate, the general description includes treason and felony, and every species 
 of the crimen faUi. . Thus, a conviction for forgery will disqualify, as will also all offenses 
 tending to pervert the administration of justice, by falsehood or fraud. Of this nature 
 are perjury, and subornation of perjury ; attaint of false verdict ; bribing a witness to 
 absent himself in order that he may not give evidence ; conspiring to procure the absence 
 of a witness ; conspiring to accuse another person of a capital offense ; barratry. Id. 17. 
 See also 1 Greenl. on Ev. § 873. 
 
 But in order to exclude the witness as incompetent, his incapacity must be established 
 by the production or proof of a jvidgment of a court of competent jurisdiction ; for it is the 
 judgment which is received as the legal and conclusive evidence of his guilt. Id. § 375. 
 
 Having attested a written instrument as a subscribing witness before conviction, his 
 handwriting may be proved afterwards, the same as if he were dead. Jones v. Mason, 
 1 Stra. 833. And though the general rule is that in actions between third persons his 
 testimony must be excluded (In re Sawyer, 3 Ad. & El. (N. S.) 721), he is allowed in cases 
 where he is a party, to make affidavits in exculpation or defense of himself, or for relief 
 
CH. HI.] From Conviction of Grime. 19 
 
 against an irregular judgment. Davis and Carter's Case, 3 Salk. 461 ; Eex v. Gardiner, 
 2 Burr. 1117. 
 
 The competency of the witness may in general be restored, hy reversal of the judgment, 
 or by a pardon. The feversal of the judgment is proved in the same manner as the judg- 
 ment itself ; and the pardon is proved by its pToduction under seal. 1 Phillipps on Ev. 31, 
 6th Amer. from 9th London ed. If the pardon be conditional, the performance of the 
 condition must be shovrn. Brevidge's Case, 3 P. Wms. 485. 
 
 The pardon restores the party to all his rights, and is said to make the witness a new 
 creature and give him a new capacity. And this is clearly so, where the incompetency 
 is the consequence of the conviction and judgment ; but where the disability is annexed 
 to the conviction of a particular offense by the. express words of a statute, the general 
 rule is that a pardon will not restore his competency. Thus, if a man be found 
 *33 guilty on an indictment for perjury at *common law, a pardon will make him a 
 good witness : but if he be convicted of perjury, or subornation of perjury, on tlve 
 statute of 5 Eliz. c. 9, he will not be rendered competent by a pardon ; for the statute 
 expressly provides that he shall never be admitted to give evidence in any court of record, 
 until the judgment be reversed. 1 Phillipps on Ev. 21. The same statute has been 
 adopted in New York. 2 K. S. 681. See'Holridge v. Gillespie, 2 John. Cli. Rep. 35, note. 
 A pardon does not render a witness competent who has been convicted of perjury. 
 Houghtailjog «. Kelderhouse, 1 Parker Cr. 241. 
 
 The present edition of this work, coming out as it did after the passage of Lord Den- 
 man's Act (6 & 7 Vict. c. 85), leaves out the former-chapter on the subject ; for by that act 
 it is declared that no person offered as a witness shall hereafter be excluded by reason of 
 incapacity from crime or interest. In this state, the.statute provides that no witness can 
 be excluded by reason of Im interest in the event of the suit (Code of Procedure, g§ 398, 
 399), leaving the disqualification of persons sentenced upon a conviction for felony as-it 
 stood under the former statute. 2 E. S. 788, (3d ed.) See Carpenter v. Nixon, 5 Hill, 260, 
 as to what crimes come within the statute. Sb that with us, as well as in this country 
 generally, the law remains as it stood before, and the former decisions still continue per- 
 tinent. Greenl. Ev. §§ 372-378. 
 
 Note 13. — It is the nature of the crime, and not the punishment, which determines 
 whether a convict is an admissible witness. A conviction of treason, felony, or any of 
 the crimen falsi, renders the witness incompetent. People v. Whipple, 9 Cowen's Rep. 
 707; Clark's Lessee v. Hall, 2 Har. & M'Hen. Rep. 378 ; People v. Herrick, 13 John. Rep. 
 82 ; Cushman v. Loker, 2 Mass. Rep. 118. All persons convicted, and adjudged guilty of 
 perjury, or subornation of perjury, are, by statute in New York, absolutely disqualified 
 from giving testimony, in any matter or cause whatever, until the judgment be reversed. 
 2 Rev. Stat. 081, §§ 1, 4. And no person, sentenced upon a conviction for felony, shall be 
 competent to testify in any cause, matter or proceeding, civil or criminal, unless he 
 be pardoned by the governor, or the legislature, except in special cases which are pro- 
 vided by law ; but no sentence upon a conviction for any offense, other than a felony, 
 shall disqualify a witness. Id. 701. §§ 23. A felony by the same statute, is defined to 
 be an offense for which the offender shall be liable to be punished by death, or by 
 imprisonment in the state prison. Id. 703, § 30. Offenders against the act to prevent 
 duelling, are declared to be competent to testify against any other person offending in 
 the same transaction, and are compellable to testify in the same manner as other persons. 
 Id. 686, § 3. Convicts imprisoned in the tetate prison are competent to testify against any 
 other convict, for any offense committed v^hilst the accused and witness are both confined 
 In prison. Id. 774, § 8. It is no objection to the competency of a witness, that he has 
 .been convicted of an assault and battery, with intent to commit murder, and has been 
 sentenced to fine and imprisonment. United States v. Brockins, 3 Wash; C. C. Rep. 99. 
 Otherwise in New York ; for there it is a felony. 3 R. S. 666, § 39, in connection with 
 Id. 703, § 30, cited svpra. A person convicted of forgery, or other infamous crime, in one 
 state, was held incompetent in another, within the provisions of the constitution of the 
 United States, and the act of Congress declaring the effect of the records of one state in 
 every other. State v. Candler, 3 Hawks, 393 ; State v. Ridgely, 3 Har. & M'Hen. 120 ; 
 Clark's Lessee v. Hall, Id. 378 ; Cole's Leasee v. Cole, 1 Har. & John. 378. But it should 
 appear that the foreign offense would disqualify at common law, or by some statute of 
 the country. Clark's Lessee v. Hall, 3 Har. & M'Hen. 378. The above cases from the 
 Maryland Reports, Har. & M'Hen. and Har. & John., hold the same as to any foreign 
 conviction. A different doctrine prevails in Massachusetts, even as to a neighboring 
 state. Commonwealth v. Green, 17 Mass. Rep. 514. At common law, a conviction of 
 petit larceny disqualified ; hut whether this is so under the peculiar enactments of Ohio 
 in 1832, quere. James v. Bostwick, 1 Wright, 142, 143. It does not disqualify in this 
 State. Shay v. The People, 23 N. Y. Rep. 317, and the conviction can only be proved by 
 producing the record. Newcomb v. Griswold, 24 N. Y. Rep. 298. 
 
 Note 14. — The conviction for an infiimous crime, cannot be proved by the witness, on 
 his voir dire, he not being bound to answer, nor would his answer be the best evidence of 
 which the case is susceptible. People v. Herrick, 13 John. Rep. 82. Nor is parol testi- 
 mony of the conviction admissible in any case, but the party objecting must have a copy 
 
20 Of Incompetency "by reason of Interest. [ch. rv. 
 
 *24 *CHAPTER IV. 
 
 OF IKCOMPETENCT BT REASON' OF INTEEBST. 
 
 The third ground of incompetency is by reason of the -witness being 
 interested as a party to the action, or as the person in whose immediate 
 and individual behalf the action is brought or defended. 
 
 It was formerly the general rule that all persons interested, to however 
 
 small a degree, in the event of a cause, should be excluded from giving 
 
 evidence in favor of that party to whom their interest inclined them. 
 
 *25 *This rule was founded upon a presumed want of impartiality in the 
 
 interested witness. f 
 
 The exclusion of witnesses on account of interest was, under the old state 
 
 of the record of conviction, ready to produce in court. Id. ; Hilts v. Colvin, 14 John. 
 Eep. 182. And it is not only necessary to Show the conviction, but also the judgment, in 
 order to disqualify the witness. People v. Whipple, 9 Cowen's Hep. 707 ; Castellano v. 
 Peillon, 2 Mart. Lou. Bep. (N. S.) 466 ; Cushman v. Loker, 2 Mass. Eep. 108 ; Skinner 
 V. Perot, 1 Ashm. Rep. 57. But wheife a witness admitted, on his cross-examination, that 
 he had heen convicted of a felony, the court charged the jury that if he had not been cor- 
 roborated, they should reject the evidence entirely. Orr's Case, before Golden, Mayor, 5 
 C. H. Rec. 181. It was also held, in Maryland, to be incumbent on the party objecting 
 t« show that the witness did not serve the full term for which he was sentenced, such 
 full service being adjudged to restore his competency. Cole's Lessee v. Cole, 1 Har. & 
 John. ,'i72 ; State v. Ridgely, 2 Har. & M'Hen. 120. It should be noted that these decisions 
 have reference to the English statutes cited in the text. The court, in The State v. 
 Ridgely, cited supra, and in Clark's Lessee v. Hall (2 Har. & M'Hen. 378), also determined, 
 that parol evidence was admissible to prove the conviction and sentence, as well as all 
 other circumstances necessary to render the witness incompetent. But a witness, though 
 convicted and attainted, is not incompetent to make an affidavit to resist a motion (Davis 
 V. Carter, 2 Salk. 461), or to found a motion. Skinner v. Perot, 1 Ashm. Rep. 57. So, it 
 seems, his oath is admissible on a charge of assault and battery, and for surety of the 
 peace, &c., or to hold to bail, or he would be utterly out of the protection of the law. 
 Skinner v. Perot, 1 Ashm. Rep. 57 ; see Vol. II, p. 189. 
 
 Note 15. — Competency may be restored by pardon, after the witness shall have served 
 out the term of his imprisonment in the state prison ; ySt no credit is due to him, unless 
 he be corroborated by others, or by the circumstances of the case. United States v. Tom 
 Jones, 3 Wheel. Cr. Cas. 451, 454, 455, 460, 461, before Thompson, J., case of piracy. 
 Though a pardon restores his competency as a witness, his crime still affects his credit. 
 Baum V. Clause, 5 Hill, 196, 360. Where the pardon is defective in describing the crime, 
 it may be shown by parol that it applies to the felony proved. Buck ads. O'Conner, 5 
 N. Y. Leg. Obs. 19. 
 
 The effect of a pardon is to acquit the offender of all the penalties annexed to the con- 
 viction, and to give him a new credit and capacity. Matter of Deming, 10 John. Rep. 233. 
 
 A person having been convicted of forgery, and sentenced to the state prison for life, 
 was pardoned by the governor. The pardon contained a proviso, that nothing in it 
 should be construed " so as to relieve the prisoner of and from the legal disabilities to 
 him, from the conviction, sentence and imprisonment, other than the said imprisonment." 
 
 This proviso was held to be repugnant to the pardon itself, and was rejected, and it 
 was held that the prisoner was freed from all legal disabilities, a'nd was a competent wit- 
 ness. The People v. Pease, 3 John. Cas. 333. 
 
 Note 17. — Where a prisoner had been pardoned on conditioij of leaving the state for a 
 specified time, and the condition was not complied with, the cburt, after the expiration 
 of the time, held the pardon to be void, and passed sentence. State v. Fuller, 1 M'Cord, 
 178. But where, in such case, it appeared that the prisoner had been insane, after the 
 conditional pardon was granted, the court, upon his behig seized and brought up for sen- 
 tence, discharged him, upon condition of his departing within the same period originally 
 limited in the pardon. The People v. James, 3 Gaines' Rep. 57. For form of pardon, see 
 Hoffman v. Coster, 2 Whart. 453, 468, 469. 
 
 Note 18. — " It does uDtseem clear whether the restoration to competency, by suffering 
 a sentence, has proceeded on the ground of incompetency being in the nature of 
 })uni8hment, or on the ground of a regenerating effect of punishment upon the moral 
 feelings of the offender; in either point of view, the principle is not justified by sound 
 reasoning or experience. On the general subje6t of incompetency of witnesses from 
 infamy, see a treatise on the incompetency of witnesses by R. Whitcomb, Esq., A. D. 
 1824." Phil. Ev. 8th ed. 25, note 1. 
 
 See Cole's Lessee v. Cole, 1 Har. & John. 572 ; State v. Ridgely, 3 Har. &. M'Hen. 130. 
 
CH. IV.] The Old Law as to Interest. 21 
 
 of our law, mucli more frequent than for any of the other grounds of 
 incompetency. The policy of the law on this subject was for a long time 
 considered very questionable. It was the opinion of many eminent jurists 
 that the pretended principle of the rule was neither just nor sound, and they 
 insisted that there was no just ground for inferring that, in the generality 
 of instances, persons interested in the subject in controversy would be dis- 
 posed, from a mere regard to their interest, to violate the duties of morality 
 and religion, or to incur the penalties of the law by committing perjury ; and 
 that, if they should be so disposed; they would probably not be successful 
 in imposing upon the judge and jury, after strict cross-examination, before , 
 the public in open court ; especially if the judge and jury acted upon that 
 supposed principle of human nature, which is said, by Chief Baron Gilbert, 
 to be the foundation of the rule, namely, that " there is more reason to 
 distrust such biased testimony, than to believe it;"(l) for where jealousy 
 
 (1) Gilb. Ev. 723, (3d edit.) ' ' 
 
 The changes lately made in the law of evidence have been similar in this state to those-^ 
 made in England ; and as they have been effected here and there also by degrees, asi 
 experience seemed to call for and justify them, it will be sufficient to note a few of the 
 decisions on the several statutes, in the order of their passage, concluding with a sum- 
 mary of the common law rule. 
 
 The rule of incompetency, on the ground of interest, was swept away in this states 
 some ten years ago. N. Y. Session Laws of 1848, p. 560. 
 
 § 351. "No person offered as a witness, shall be excluded, by reason of his interest im 
 the event of the action. , 
 
 § 352. " The last section shall not apply to a party to the action, nor to any person for- 
 whose immediate benefit it is prosecuted or defended, nor to any assignor of a thing in 
 action, assigned for the purpose of making him a witness." See amendment to this 
 section in 1851. See §§ 398, 399 of present Code. 
 
 The codifiers, proposing the above sections, make the following remarks in respect to 
 the principle adopted by them, in their report to the legislature ; " The abrogation of the 
 rule which excludes a witness who has an interest in the event of the action, has been 
 frequently proposed and discussed in this state. We think the time has come for effect- - 
 Ing it. The rule appears to us to rest upon a principle altogether unsound ; that is, that, 
 the situation of the witness will tempt him to perj ury. The reason strikes at the 
 foundation of human testimony. The only just inquiry is this; whether the chances of 
 obtaining the truth are greater from the admission or exclusion of the witness ? Who 
 that has any respect for the society in which he lives, can doubt that, upon this principle, 
 the witness should be admitted? The contrary rule implies that, In the majority of' 
 instances, men are so corrupted by their interest, that they wiU perjure themselves for it,, 
 and that besides being corrupt, they will be so adroit as to deceive courts and juries,. 
 This is contrary to all experience. In the great majority of instances the witnesses are- 
 ho'nest, however much interested, and in most cases of dishonesty the falsehood of the 
 testimony is detected, and deceives none. Absolutely to exclude an interested witness,, 
 is, therefore, as unsound in theory as it is inconsistent in practiop. It is inconsistent, 
 because the law admits witnesses, far more likely to be biased in favor of the party, than 
 he wlio has merely a pecuniary interest. A father may testify for his son ; a child living- 
 with his father, and dependent upon his bounty, may appear as his witness, nay, as his- 
 only witness, without question. Is the immediate gain of a dollar, by the result of a. 
 cause, so potent to outweigh integrity, while affection, consanguinity, dependence, are 
 put down as dust in the balance? There is not another rule in the law of evidence so 
 prolific of disputes, uncertainties, and delays, as that we are considering. Not a circuit 
 is held, but question after question is raised upon it ; nor a term where exceptions grow- 
 ing out of it are not debated. Some of the foregoing reasons apply also to the exclusion 
 of a person sentenced tor felony. It is wiser, we cannot doubt, to place the witness on 
 the stand, and let the jury judge of his testimony." See sections of Code as they now 
 Btajid, Vol 3. 
 
 Following out this reasoning, the legislature of 1857 has declared even parties to the- 
 action competent witnesses in their own behalf. If a third person, not a party to the suit, 
 such as a stockholder in a bank which is plaintiff in the action, may be permitted to 
 testify, notwithstanding his interest in the event of the suit, why, it was said, should not 
 a member of a firm be permitted to testify in its behalf? See Montgomery County Bank 
 V. Marsh, 3 Seld. 481, If the interest of the witness does not disqualify him, why should he 
 be excluded on the ground th^t he is named as a party to the action ? Finding no 
 answer to these questions, the Parliament of England, by an act passed in 1851 (14 & 15 
 Vict. c. 99), declared parties competent and compellable to give evidence ; as we have, 
 already noticed on a former page. 
 
22 Lord Benmari's Act, 6 & 7 Vict. c. 85. [ch. iv. ' 
 
 *26 and distrust were likely to be so strong, the *danger of being deceived 
 would not be' great. It was urged, also, that it was not reasonable, 
 and scarcely consistent, to exclude some witnesses on account of a trifling 
 pecuniary interest, so small, perhaps, as not to be supposed capable of pro- 
 ducing a bias on their minds, when others were admitted without objection, 
 though subject to the powerful influence of relationship, friendship, passion 
 or feeling ; and that, at all events, the possibility of occasional risk in judi- 
 cial inquiries, from the admission of interested witnesses, was a much less 
 evil than that of counteracting and frustrating, in a multitude of cases, the 
 great object to which all rutes of evidence ought to be directed, namely, 
 the discovery of truth. In proportion as the means of inquiry and informa- 
 tion are shi^t out, the discovery and enforcement of truth becomes more 
 difficult. The inconveniences, also, necessarily arising out of the application 
 of such a rule, were not, it was said, to be overlooked. Of this nature were 
 the diflioulties and uncertainty occasioned by frequent reference to a great 
 variety of decisions, which required considerable research, abounded with 
 many subtle distinctions, and occasionally by their contrariety created much 
 legal doubt. It was also ];emarked that the numerous exceptions to the 
 general rule which had been introduced (especially in the administration of 
 criminal justice, where offers of reward on conviction, though a very strong 
 pecuniary interest, would not disqualify a witness for the prosecution), were 
 arguments against the policy of such restrictions, and were not reconcilable 
 with the principle of the rule itself For these reasons, it was strongly 
 pressed, as the wiser and better course, to admit the evidence of interested 
 witnesses without exception, and to allow the objection to be used against 
 their credit, not against their competency. 
 
 "This view has at length been adopted by the legislature, and carried into 
 effect by Lord Denman's Act ;(l) of which it may be truly said that, of all 
 the acts in our statute book, it contains in the smallest compass the greatest 
 amount of good. It settles the law upon an intelligible, reasonable and 
 *27 satisfactory basis ; puts an end to some of the most intricate *perplex- 
 ities of the law, and rejects a principle which was unsound in theory, 
 and in practice often led to results most unfavorable to the due administra- 
 tion of justice. 
 
 This statute, after reciting that " the inquiry after truth in courts of justice 
 is often obstructed by incapacities created by the present law and it is desira- 
 Me that full information as to the facts in issue, both in criminal and in civil 
 'Cases, should be laid before the persons who are appointed to decide upon 
 them, and that such persons should exercise their judgment on the credit of 
 the witnesses adduced, and on the truth of their testimony ; proceeds to 
 enact, (2) "that no person offered as a witness shall hereafter be excluded, 
 by reason of incapacity from crime or interest, from giving evidence, either 
 in person or by deposition, according to the practice of the court, on the trial 
 of any issue joined, or of any matter or question, or on any inquiry arising in 
 any suit, action or proceeding, civil or criminal, in any court, or before any 
 judge, jury, sheriff, coroner, magistrate, officer or person having by law or 
 by consent of parties authority to hear, receive and examine evidence ; but 
 that every person so offered may and shall be admitted to give evidence on 
 oath, or solemn affirmation in those cases wherein affirmation is by law receiv- 
 
 (1) 6 & 7 Vict. c. 85, Lord Denman's Act. 
 
 (2) Sect. 1. 
 
 The first proviso to this act is repealed by seotlon 1 of 14 & 15 Vict. c. 99, excepting the 
 last clause, or the husband or vdfe of such persons respectively. And the second section of tliat 
 act, 14 cSi 15 Vict. c. 99, declares parties competent witnesses, with certain exceptions therein 
 specified, and previously noticed. And now, by 16 & 17 Vict. c. 83, husbands and wives 
 are competent and compellable to give evidence in all civil cases, except in cases of adultery, 
 provided that neither shall be competent or compellable to disclose any communication 
 made to liim or her by the other during marriage. 
 
%< 
 
 CH. iv.J Persons not rendered Competent. 23 
 
 able, notwithstanding that such person may or shall have an interest in the 
 matter in question, or in the event of the trial of any issue, matter, question 
 or inquiry, or of the suit, action or proceeding in which he is offered as a 
 witness, and notwithstanding that such person offered as a witness may have 
 been previously convicted of any crime or offense : Provided that this act 
 shall not render competent any party to any suit, action or proceeding indi- ' 
 vidually named in the record ; or any lessor of the plaintiff, or tenant of 
 premises sought to be recovered in ejectment ; or the landlord or other per- 
 son in whose right any defendant in replevin may make cognizance ; or any 
 person in whose immediate and individual behalf any action may be brought 
 or defended, either wholly or in part ; or the husband or wife of such persons 
 respectively : Provided, also, that this act shall not repeal any provision in 
 a certain act passed in the session of Parliament holden in the seventh year 
 of the reign of his late Majesty, and in the first year of the reign of her 
 present Majesty, intitule* ' An act for the amendment of the laws with respect 
 to wills :' Provided that, in courts of equity, any defendant to any cause 
 pending in any such court may be examined as a witness on the behalf 
 28 of the plaintiff or of any co-defendant in any such cause, *saving just 
 exceptions; and that any interest which such defendant so to be 
 examined may have in the matters, or any of the matters in question in the 
 cause, shall not be deemed a just exception to the testimony of such defend- 
 ant, but shall only be Considered as afiecting or tending to affect the credit 
 of such defendant as a witness." 
 
 This statute renders competent every person whose testimony would 
 formerly hare been excluded upon the ground of his having an interest in 
 the matter in question, or in the event of the suit.(l) But it does not ren- 
 der competent certain persons, therein enumerated, with respect to whose 
 competency the rule of law continues the same as it was before this act 
 passed. It is material to remark the form in which the act is drawn ; it 
 contains no exception of persons who are not to have the benefit of the act ; 
 for instance, it does not except parties individually named in the record ; 
 but it provides that they are not thereby rendered competent. Thus, with 
 regard to parties to a suit individually named in the record, it leaves the 
 law as it was before ; but parties not individually named in the record, •^ 
 however they may be substantially interested as parties, are within the 
 beneficial clause, and are not to be excluded by reason of interest. 
 
 The persons particularly mentioned in the provision, are as follows : 
 
 1st, Any party to any suit, action or proceeding, individually named in 
 the record. But with regard to these, it is provided, that in suits in equity 
 any defendant, may be examined as a witness, saving just exceptions ; any 
 interest, however, which such defendant may have in the matters in ques- 
 tion, is not to be deemed a just exception, but only as tending to affect his 
 credit as a witness. (2) 
 
 2dly, Any lessor of the plaintiff in ejectment. 
 
 3dly, Any tenant of the premises sought to be recovered in ejectment. 
 
 4thly, The landlord or other person in whose right, any defendant in 
 replevin may make cognizance. 
 
 5thly, Any person, in whose immediate and individual behalf any action 
 may be brought or defended, either wholly or in part : and 
 ^ Lastly, The husband or wife of any such persons respectively. 
 
 It is proposed to consider the question of competency as to these persons, 
 in the following order : 
 
 (1) See Cupper v. Newark, 2 C. & Kir. 34. 
 
 (2) See Carmichael v. Carmichael, 3 Coll. 1. The several sections of the Codfopf New , 
 York relating to the competency of witnesses will be considered together post ; for the 
 law as it stppd when the last edition of this work was issued in England, see the introT 
 ductory chapter. 
 
24 Of the Incompetency of Parties on the Mecord. [ch. it. 
 
 1st, As totll^ parties to the suit, action or proceeding individually named 
 in the record. 
 
 2dly, As a subdivision of this head, the rule as to parties in criminal pro- 
 ceedings will be considered. 
 
 3dly, As to the persons in whose immediate behalf an action is brought 
 or defended. This class will comprehend the several persons specified in 
 the second, third and fourth classes above mentioned. 
 
 4thly, As the husband or wife of any such person. 
 
 *29 *SECTIO]Sr I. 
 
 Of the Jiule of Incompetency Considered with reference to Parties Indi- 
 vidually Named in the Record in Civil, Proceedings. 
 
 The general rule formerly was, that a party to the record, in a civil 
 suit could not be a witness at the trial, for himself or for a joint suitor, 
 against the adverse party. (1) The late act of 6 & 7 Vict. c. 85, for 
 
 (1) 1 Vernpn, 230 ; 1 P. Wms. 596 ; Gilb. Evid. 116. 
 
 Note 19.^It is a general rale in all common law courts, that a party on the record 
 cannot be received to testify, either in his own favor, if objected to by the opposite 
 party^ or against himself, if he object. Haswell v. Bussing, 10 John. Rep. 128 ; Sharp 
 V. Thatcher, 2 Dall. 77 ; Supervisors of Chenango v. Birdsall, 4 Wend. 453 ; Nason v. 
 Thatcher, 7 Mass. Rep. 398; Fox v. Whitney, 16 Id. 118; Adams v. Leland, 7 Pick. 62; 
 Sears y. Dillingham, 13 Mass. Rep. 358 ; Hunter v. Hunter, Charlton's Rep. 303 ; Lamp- 
 ton V. Lampton's Executors, 6 Monroe, 616, 617; Robinson v. Neal, 5 Monroe, 512, 214, 
 315 ; Thomas v. Ferqueran, 3 J. J. Marshall, 28 ; Worrall v. Jones, 7 Bing. 395 ; Butler's 
 Ex'r v. Brown, 4 M'Cord, 24 ; Kimball v. Lamson, 2 Verm. Rep. 143 ; Commonwealth v. 
 Marsh, 10 Pick. 57, 58. 
 
 Whether, in the common la,w courts, he shall ever be received to testify upon the mer- 
 its, even after all interest is removed, or where he is willing to testify in favor of the 
 opposite side, on being caUed for the latter purpose, depends mainly on the question 
 whether the rule of exclusion go upon the mere abstract objection that he is a party, or 
 that he must have some interest connected with that relation. 
 
 (Parties to the record are held incompetent witnesses on the general ground that they 
 are interested in the event of the suit ; and the, practice has been to exclude nominal as 
 well as real parties, even where they have no personal interest in the result of the 
 action. Benjamin v. Coventry, 19 Wend. 853 ; Fort v. Gooding, 9 Barb. Rep. 371 ; 
 Owings V. Emery 7 Gill, 405 ; Patterson v. Cobb, 4 Florida, 481. But a person who is a 
 party to the suit, but not a party to the issue on trial, is a competent witness. SaflFord 
 V. Lawrence, 6 Barb. R. 566. And it has been held, that a naked trustee, not responsible 
 for the costs of the suit, and having no interest in it, is a competent witness ; it appear- 
 ing that the action might just as well have been brought in the name of }.he real parties. 
 Keim v. Taylor, 11 Penn. State Rep. 163. So, where one of two defendants puts in no 
 defense, he has been held a competent witness for the plaintiff in the action. Kincaid v. 
 Purcel, 1 Smith, 164. And in an action on a joint contract, where a plea of infancy 
 interposed by one of the defendants has been found in his favor, he is a competent wit- 
 ness. Rohrer v. Morningstar, 18 Ohio, 579. But the common law rule as held in this 
 state, does not permit one of the parties to the record to give evidence for another. 
 Oakley v. Aspinwall, 3 Sand. R. 7 ; 4 Wend. 453.) 
 
 On this question, different courts have had their different views. Lampton v. Lamp- 
 ton's Bx'rs, 6 Monroe, 617, per Mills, J. They all seem to concur that though the party 
 be an administrator, executor, trustee, guardian, prochein ami, or otherwise stand in 
 autre d/rmt, he is not competent to testify in favor of the interest he represents, because, 
 on failure, he is liable for costs ; and the most complete and certain remedy over to reim- 
 burse himself, has not yet in any case been considered as countervailing his interest. 
 Bears v. Dillingham, 13 Mass. Rep. 358 ; Fox v. Whitney, 16 Id. 118 ; Durant v. Starr, 11 
 Id. 537 ; Butler's Ex'r v. Brown, 4 M'Cord 34 ; 3 Day, 404 ; Beard's Ex'r v. Cowman's Ex'r, 
 2 Har. & M'Henry, 153 ; Van Sant v. Boileau, 1 Binn. 444 ; Heckert v. Haine, 6 Binn. 16. 
 And see next note. No; not even if he resign his trust during the pendency of the 
 action ; for he is still liable for costs. Adams v. Leland, 7 Pick. Rep. 62. And though 
 the party be misnamed, or (in actions arising ex contractu, against several) one of the 
 defendants be returned non est inventus, still, in the first case his real name may be 
 shown, and in the latter he shall be deemed a party, and in both excluded. Rob- 
 »30 inson v. Neal, 5 Monroe, *214, 215; Van Norden v. Striker, 9 Wend. 286. 
 
BEG. I.] Of the- Incompetency of Parties on the Record. 25 
 
 Sq a lessor of the plaintiff in ejectment, whether he have any interest in the land 
 or not. Prandt ex dem. Van Cortlandt v. Klein, 17 John. E. 335 ; Robinson v. Neal, 5 
 Monroe, 213, 314. So the assignee of the chose in action on which the suit is brought. 
 Frear v. Everston, 20 John. Rep. 142 ; The People ex rel. M'Call v. Irving, 1 Wend. 
 20, 31 ; Mauran v. Lamb, 7 Cowen's Rep. 174, 178. 
 
 In New York, the rule excludes the party as a witness on either side, without regard to 
 the question whether he be interested or not. It is enough that he be a party, in all 
 cases except where defendants, in actions for torts, are without cause brought into court. 
 Supervisors of Chenango v, Birdsall, 4 Wend. 453, 457 ; Schermerhorn v. Schermerhorn, 
 1 Wend. 119, cited and explained by Marcy, J., 4 Wend. 457 ; Mauran v. Lamb, 7 Cowen's 
 Rep. 174, 177 ;-Hopkin8 v. Banks, 7 Cowen's Rep. 650 ; Fres;r v. Everston, 20 John. Rep. 
 143 ; The People ex rel. M'Call v. Irving, 1 Wend. 20, 31. So in Massachusetts. Fox v. 
 Whitney, 16 Mass. Rep. 118, 121. This doctrine is also strongly insisted on in De Wolf 
 v. Johnson (12 Wheat. 367, 384, 385), even as to a court of chancery. Quere. This case 
 is stated infra. 
 
 ■ In England the doctrine of the jurists has certainly fluctuated as to the reason of the 
 rule. Starkie, in his treatise on evidence, considers the reason a mixed one — partly 
 founded on interest, and partly on policy — as where the party is called in his own favor, 
 being interested, and tempted to cominit perjury; and on policy, as where the party 
 refuses to be sworn, being called bjtthe other side. 3 Stark. Ev. 1061. And it will be 
 seen, by the cases cited in the text of Phillipps, that they can hardly be sustained with- 
 out the aid of this double principle. Indeed, in a stilMater case, a plaintiff on record, 
 though a mere trustee, and plainly destitute of all interest, was excluded by Lord Ten- 
 terden, C. J., at Nisi Prius. Whitmore v. Wilks, 1 Mood. & Malk. 314, 220, 321. But a still 
 more recent case seems much to have shaken that principle, and to have approximated to 
 the doctrines of the Court of Chancery and of some American courts of law. It under- 
 went much consideration by the Common Pleas ; and seems to put the question of policy 
 entirely out of the case, provided the party consent to be examined ; and to rest the whole 
 inquiry upon interest alone. The action was against Jones and his sureties W. B. and J. 
 J., on a bond conditioned that Jones should pay rent pursuant to a certain agreement. 
 Jones andJ. J. suffered judgment by default, but W. B. insisted by plea that the tenancy 
 under the agreement had ceased at a certain time, up to which all the rent had been paid. 
 On the trial the plaintiff offered Jones, one of the defendants, as a witness, to negative 
 the plea of W. B., his co-defendant ; and, though objected to by W. B , he was received. 
 On motion for a new trial the court, after taking time to consider the question, refused 
 the Aotion. Tindall, C. J., said that Jones was not interested in favor of the plaintiff; 
 for, being the principal debtor, he could not call for contribution from the other defend- 
 ants, but must himself be ultimately liable both for damages and costs. He did not 
 object to being examined. No case had been cited, nor can any be found, in which a 
 witness has been refused upon the objection, in the abstract, that he was a party to the 
 suit. On the contrary, many have been brought forward in which parties to the suit, 
 who have suffered judgment by default, have been admitted as witnesses against their 
 own interest ; and the only inquiry seems to have been, in a majority of the cases, 
 whether they were interested in the event or not. He insists that the party can be 
 excluded on the ground of interest only, and adds: " That a party to the record should 
 not be compelled against his consent to become a witness in a court of law, is a rule 
 founded in good sense and sound policy. It forms the point in the decision in the case of 
 The King v. Woodburn (10 East, 395) ; and the decision of that case leads to the neces- 
 sary inference that, if the party consents to be examined, he is then an admissible wit- 
 ness." Worrall v. Jones, 7 Bing. 395. 
 
 In Massachusetts and New York the objection to a party being sworn is rested on 
 policy, and he cannot be sworn even by his own consent if his co-defendants object. Per 
 Wilde, J., in Commonwealth v. Marsh, 10 Pick. 58 ; Supervisors of Chenango v. Birdsall, 
 4 Wend. 453, 456, 457 ; Schermerhorn v. Schermerhorn, 1 Wend. 119. But guere. See 
 Miller v. Starks, 13 John. Rep. 517, and Hopkins v. Banks, 7 Cowen's Rep. 650, 653. This 
 ground of policy, in the exclusion of parties, was also disregarded in Bate v. Russell (1 
 Mood. & Malk. 333), and Affalo v. Fourdrinier (Id. 334, note ; S. C, 6 Bing. 306), where a 
 bankrupt co-defendant was, in the first case, on being acquitted by the jury and 
 •81 released by his co-defendants, and in the last, on his *releasing his surplus and a 
 noUe prosequi being entered as to him, received as a witness for his co-defendants. 
 
 In New York the plaintiff is compellable to testify against himself, where the chose in 
 action on which the suit is brought has been illegally assigned for prosecution to an 
 attorney, counselor or solicitor, in order to prove such fact. 2 R. S. 288, 389. 
 
 The cases which follow will exhibit farther the views of the American courts on this 
 qudstion. 
 
 One joint appellee cannot be received as a witness for his co-appellees, either upon his 
 releasing to them his interest in the subject in controversy, or upon his or their deposit- 
 ing with the clerk a sufficient sum of money to cover the costs. Coghill v.' Coghill, 3 
 Hen. & Munf. 467. The reason assigned by one judge was that he was still liable to his 
 adversary for costs. Id. 479, 482. But a majority of the court seemed to think that had 
 
 Vol. L 4 
 
26 Of the Incompetency of Parties oh the, Record. [ch. iv. 
 
 this difficulty been obviated, still he would not have been competent. Id. 483 to 484., 
 And where a bill for the foreclosure of a mortgage was filed against the mortgagor, his 
 assignee of the equity of redemption, and a purchaser in possession from the assignee, it 
 appeared that the mortgagor was insolvent, and no relief could be had against hira; 
 held, that though he was not necessarily made a party, yet being a party to the record, 
 he could not be examined as a witness. De Wolf v. Johnson, 10 Wheat. 367. Yet, in 
 chancery, a party totally disinterested is constantly received as a competent witness. 
 Sharp V. Morrow, 6 Monroe, 304, 305. But see Thomas v. Ferqueran, 2 J. J. Marsh. 28. 
 One partner is not a witness for another on a bill by a third partner for an account. 
 Sharp V. Morrow, 6 Monroe, 304, 305 ; Waggoner v. Gray's Adm'rs, 2 Hen. & Munf. 603. 
 But after he is dismissed as a party, he maybe a witness. Id. Till dismissed, he ia 
 interested as a party ; for the decree will affect his rights. Id. , 
 
 W., F. and K. brought an action against C. to recover damages for breach of a contract 
 to deliver goods of a certain description and quality. After the commencement of the 
 suit, but before the trial K. executed to W. and F. an assignment of all his interest in 
 the claim against the defendant, for which the suit was brought, and of whatsoever sum 
 might be recovered in the action, with a power to them to use his name in prosecuting 
 the action. W. and F. also released him from all claims on him for the costs which, had 
 or might accrue, and for any claims for contribution to any sum which the defendant 
 might recover, and also executed to him a covenant tio indemnify him against all costs, 
 charges and damages, which might accrue in prosecuting the snit. On the trial, W. and 
 F. paid to the clerk all costs wliich had accrued, and made a deposit sufficient to cover 
 all costs which could accrue during the progress of the cause, and offered to deposit with 
 the clerk such further sum as the counsel of the defendant might require, and to give 
 satisfactory security for the payment of all the costs of the suit. The action was marked 
 in the clerk's docket, to be for the use of W. and P., who then offered to introduce K. as a 
 witness. By the court, Washington J, The general rule of law certainly is, that a party 
 to a suit cannot be a competent witness. But it Is equally so, that the interest which that 
 party has in the event of the suit, both as to costs and the subject in dispute, lies at the 
 foundation of the rule, and when that interest is removed, the objection ceases to exist. 
 In this case, the assignment has terminated the interest of K. in _the subject for which 
 the suit is brought. As to the costs, they are paid by the assignees, now the only real 
 plaintiffs on record. Willings v. Consequa, 1 Pet. C. C. Eep. 801. tJpon this question, 
 whether interest is the foundation of precluding the party, see the remarks of Mills, J., 
 in Lampton v. Lampton's Ex'rs, 6 Monroe, 617, 618. He concludes that it is. • 
 
 In South Carolina, where a third person brings a suit on an administration bond in the 
 name of the ordinary, indorsing liis name on the record, and acknowledging himself 
 liable for costs, the ordinary is a competent witness to prove the bond. Price v. Gregory, 
 4 M'Cord, 261. Said, as the reason, that the plaintiff is a public officer, and his name 
 made use of only to enable the real plaintiff to sustain the action. He is not liable for 
 costs, nor is the record evidence to affect him in his individual rights. Id. 262. 
 
 In Pennsylvania, two plaintiffs brought assumpsit as indorsees of a promissory note; 
 and one of them assigned all his interest in the note to the other, who paid into court all 
 the costs of suit, and the' assignor was then allo\yed as a competent witness for the 
 plaintiff to whom he had assigned. Hart v. Heilner, 3 Rawle, 407. But this decision is 
 put by the court on the ground that in Pennsylvania there is no court of chancery ; 
 *32 and that courts of law have followed the *rules of chancery. Drum v. Simpson's 
 Lessees, 6 Binn. 481. And see Steele v. Phoenix Ins. Co., 3 Binn. 806 ; M'Clenachan 
 V. Scott, 2 Dall. 182, note ; M'Ewen v. Gibbs, 4 Dall. 137. 
 
 In Connecticut, all parties are witnesses on a matter of accounting in a court of probate. 
 Fairman v. Bacon, 8 Conn. Rep. 418. And in Massachusetts, referees may examine wit- 
 nesses who would be incompetent in court, on the ground of interest. Fuller v. Wheelock, 
 10 Pick. 135. In New York, parties are examinable by referees in the action of account. 
 2 K. S. 885, § 50. 
 
 In South Carolina, aerrO). a nominal plaintiff is a witness in a cause. Canty v. Sumter, 
 2 Bay, !)3. But in Knight v. Packard (3 M'Cord, 71), this is denied, and it is there said 
 that Canty v. Sumter must have been misreported upon this point. 
 
 Parties and persons' interested are competent to prove the loss of a written instrument, 
 or that it is in the power of the other party, and notice to him to produce it on the trial, or 
 other circumstances necessary to authorize the introduction of secondary evidence of 
 its C3ntents ; and to prove the death of a subscr'ibing witness, or other facts, in order to 
 the admission of proof of his handwriting. Such preliminary testimony is addressed 
 to the court, upon a collateral point, and it is not a subject on which the jury are to pass. 
 This is the law in New York. Jackson ex. dem. Livingston v. Frier, 16 John. Bep. 193 ; 
 Chamberlain v. Gorliam, 20 Id. 144 ; Butler v. Warren, 11 Id. 57, overruled ; Schermerhoru 
 V. Schermerhoru, 1 Wend. Rep. 119; Jackson ex dem. Van Schaack v. Davis, 5 Cowen's 
 Eep. 122 ; Betta v. Jackson ex dem. Brown, 6 Wend. 173. So in New Hampshire. M'Neil 
 v. M'Clintock, 5 N. H. Rep. 345. So in Massachusetts. Davis v. Spooncr, 3 Pick. Rep. 
 284 ; Chase v. Lincoln, 8 Mass. Rep. 236 ; Taunton Bank v. Richardson, 5 Pick. Rep. 406 ; 
 Adams v. Leland, 7 Id. 62. So in Pennsylvania. Douglass' Lessee v. Sanderson, 2 Dall. 
 
SKC. I.J Of the Incompetency of Parties on the Record. 27 
 
 116. Meeker v. Jackson, 3 Yeates, 442 ; Jordan v. Cooper, 3 Serg. & Kawle, 575 ; Kidd v. 
 Riddle, 3 Yeates, 444 ; 1 Yeates, 15 ; Levans' Lessee v. Hart, cited 1 Yeates, 16 ; Lenox v, 
 Dehaas, 2 Yeates, 37. So in North Carolina. Blanton v. Miller, 1 Hayw. 4 ; Seekright 
 ex dem. Wright v. Bogau, Id. 178, note ; Park v. Cocheran, Id. 410 ; Id. 54, note a ; GarJ 
 land V. Goodloe, 2 Hayw. 351. But see Cotton v. Beasley, 1 N. Car.-Law Eepos. 239. So , 
 in "Virginia. Ben v. Peete, 8 Rand. 539 ; Givens v. Mans, 6 Munf. 201. In Pennsylvania] 
 it has been held, that the party may be sworn as to a witness's inability to attend, Sxu, 
 order to let in his deposition taken de tens esse. Morris v. Flora, cited 2 Dall. 117, 1 
 Yeates, 16. Otherwise In North Carolina. Willis v. Brown, Mart. Rep. 52 ; Anon vj 
 Brown, 1 Hayw. 227. In South Carolina and Connecticut, the testimony of the party has 
 been denied to prove the loss of a material paper and the proper search. Sims v. SimsJ 
 2 Rep. Const. Court, 225 ; Coleman v. Wolcott, 4 Day, 388. In Imw York, where one 
 party is received to prove the loss of a paper, the opposite party maj^e sworn to disprove 
 the loss, and account for the paper. 2 R. S. 406, § 74. 
 
 A party to the record cannot be a witness, even when he is a mere nominal party hav^ 
 ing no interest, without the consent of the real party in interest. Thus, where an actioiil 
 was brought by the assignee of a chose in action, in the name of the assignor, the defend^ 
 ant offered to call the nominal plaintiff as a witness to prove his set-off. Held, that h^ 
 was inadmissible. His being a party to the record, was sufficient to exclude him, withouj 
 the consent of the real papty in interest. Frear v. Evertson, 20 John. Rep. 142. And ses 
 The People ex rel. M'Call v. Irving, 1 Wend. 20, S. P. 
 
 An executor cannot be a witness in an action against him ; for the record would be 
 evidence to charge him personally in an action for a devastavit. Lampton v. Lampton^ 
 Ex'rs, 6 Monroe, 616, 619. But he was received to testify on probate ; for in that he hts 
 no interest. M'Daniel'a Will, 2 J. J. Marsh, 332. 
 
 An executor plaintiff, on an issue of demaamt ml non, was not allowed to testify, thougli 
 he took nothing under the will. Vinyard v. Brown, 4 M'Cord, 34. 
 
 But though in general, neither a party in interest, nor a party merely nominal, cm 
 either be received as a witness in his own favor nor in favor of others on the same side, 
 nor compelled to testify against himself, or against others on the same side, many excep- 
 tions have been made by the courts of law ; and still more by courts of equity — soiie- 
 times where a party proposed as a witness is interested, at others, where he is either f:ee 
 from interest, in the same sense with any other witness, or where his interest is remoTed 
 at the trial. We shall consider most of the additional cases respecting his restoratior to 
 competency, which in some states has become as common an expedient, as a similar 
 restoration of other witnesses. The general doctrine that a party, nominal or leal, 
 *33 is incompetent, with some of its qualifications, has already been considered, to *wliich 
 may be added several cases not before cited. Higdon's Heirs v. Higdon's Devisees, 
 6 J J. Marsh. 53 ; Duncan, J., in Gebhardt v. Shindle, 15 Serg. & Rawle, 339 ; BuUare, J., 
 in Gravier's Curator v. Cullion, 11 Lou. Kep. (Curry) 376 ; Bill v. Scott, Kirby, 63 ; Hawk- 
 ins V. Hawkins, 3 North Car. Law Repos. 637 ; Williams v. Beard, 8 Dana, 158 ; Levy v. 
 Burley, 2 Sumn. 355, 361 ; Scott v. Lloyd, 12 Pet. 145, 149 ; Bradley v. Root, 5 Paige, 638, 
 639 ; Norton v. Woods, 5 Paige, 249 ; Jones v. Bullock, 2 Dev. Eq. Rep. 638, 639 ; Davis 
 V. Morgau, 1 Tyrwh. 457; 1 Compt. & Jerv. 87. * 
 
 The doctrine extends to a prooliein ami. Sproule v. Botts, 5 J. J. Marsh. 162, 163. 
 
 The courts in Pennsylvania are very liberal in allowing the restoration of the compe- 
 tency of a party to the record. But his interest must be fully extinguished. An executor 
 plaintiff in trover, on his own possession, was excluded, though he offered to pay all past 
 costs, and to deposit what the court should think sufficient to cover the residue ; for the 
 costs may be recovered back. In this case, they were not paid and relini|uished absolutely. 
 Besides, he did not release his right to commissions. Gebhardt v. Shindle, 15 Serg. & 
 Rawle, 235, 239, and 340. So, generally, of an executor plaintiff, though he sue in mere 
 right of the intestate. Cochran v. Cochran, 1 Yeates, 134 ; Aiiderson v. Neff, 11 Sei-g. & 
 Rawle, 208. An executor or administrator defendant cannot be rendered competent, as 
 if he were plaintiff, by paying costs, releasing, &c. ; for the verdict is evidence to charge 
 him in various ways, e. g. for a devastavit, and this especially if he has admitted assets 
 by his plea. Conrad v. Keyser, 7 Serg. & Rawle, 370, 371. See also, per Duncan, J., in 
 Wood v. Ludwig, 5 Serg. & Rawle, 447. A fortiori without a release, &c. Dehuff v. 
 Turbett, 3 Yeates, 157 ; Sinks v. English, 3 Blackf. 138. A garnishee in a foreign attach- 
 ment, being liable for costs, if he contests the plaintiff's claim, is not a competent witness 
 agaiilst the plaintiff, even though he pay the debt due from him into court. Wood 
 v. Ludwig, 5 Serg. & Rawle, 446, 447. A party defendant sued with others as a partner, 
 is not competent f&r the jtlaintiff, to prove the partnership, though willing to be sworn ; 
 for his testimony discharges himself for so much as he throws upon the other defendants. 
 Miller v. McClenachan, 1 Yeates, 144. One of several defendants in chancery, conveyed 
 all his interest pendente lite, taking an indemnity from his grantee against the costs in 
 the cause, and was then offered as a witness for the defendants ; but was held incompe- 
 tent. Shelby v. Smith's Heirs, 2 A. K. Marsh. 504, 507. Where a judgment confessed 
 was opened, at the instanceof junior judgment creditors, and atrial awarded, the defend- 
 ant was held admissible for either party. Summer v. Summer, 1 Watts, 303. In debt by 
 
28 Of the Incompetency of Parties on the Record. [ch. rv 
 
 a vendor against both his vendee and the assignee of the latter, brought in on notice as a 
 terre-tenant, in order to fix him veith the original purchase-money, as being an equitable 
 lien on the land, the defendant, the vendee, was held incompetent for the plaintiff, because, 
 though a defendant, and in that sense a witness against himself, yet he might throw the 
 ■vhole upon his assignee, who it appeared had no remedy over. Long v. Long, 1 Watts, 
 S65, 370. In a case in Pennsylvania, it was held that one defendant was inadmissible 
 for the other, the plaintiff objecting, even though his interest in amount were against 
 me party calling him, and in favor of the plaintiflF. The action was ejectment. Leis v. 
 Stub, 6 Watts, 48, 51. The court say no such interest could countervail the immediate 
 one which he had to testify in his own favor. Id. 51. In such case, though he disclaim 
 md abandon the possession, and all costs to be paid to the time of disclaimer, he is still 
 lable to a suit for men|e profits, in which the record will be evidence against him. There- 
 fore he is not competefet for his co-defendant. Stub v. Leis, 7 Watts, 43- In Connecticut, 
 it has recently been-held, after much consideration, by the Supreme Court of Errors, that 
 t nominal plaintiff being willing to testify, was admissible for the defendant, although 
 the real plaintiff, the assignee, objected. Johnson v. Blackman, 11 Conn. Eep. 343, 346. 
 go of a real plaintiff, not named as such, c. g. a lessor in ejectment, may if he will, be 
 Bceived, and.testify for the defendant, the other lessors objecting. Stanberry's Lessee v. 
 Felsou, 1 Wright, Ohio, 766. But he cannot be compelled. Id. And such is the general 
 rile in regard to a real or nominal party plaintiff or defendant, not being interested to 
 testify in favor of the opposite party. And if he be willing, the right to object does not 
 lis with any nominal or real party on the same side. Per White, J ., in Whatley v. John- 
 sen, 1 Stew. Eep. 488, 489 ; Prewett v. Marsh, 1 Stew. & Port. 17, 18, 19 ; Owings v. 
 lijnderson, 5 Gill & John. 134,"l46 ; Albers v. Wilkinson, 6 Gill & John. 358 ; Hajn v. Mar- 
 tii, 5 Watts, 179, 180 ; Gravier's Curator v. Cullion, 11 Lou. Rep. (Curry) 369, 376. 
 
 The rule is about the same in chancery. Douglass v. Holbert, 7 J. J. Marsh. 2 ; 
 *3i O'Neall, J.,' in *Capehart v, Adm'rs of Huey, 1 Hill's Ch. Eep. 408. Even there, 
 a party cannot be compelled to be a witness against himself independent of his 
 aniwer. A decree against him cannot be founded, in whole or in part, on his testimony 
 before an examiner. Palmer v. Van Doran, 3 Edw. Ch. Eep. 193. One of several com- 
 planants, though disinterested, cannot be a witness for the complainants. The only way 
 to nake him competent, is, if the nature of the proceedings will admit of it, to obtain an 
 order to strike out his name as a complainant, and make him a defendant. Neither a 
 sole nor joint complainant can be examined as a witness against the defendant. Eckford 
 V. De Kay, 6 Paige, 365. 
 
 Tie general rule we have spoken of, which receives a party in a court of law, must of 
 course be understood as not extending to those courts which absolutely exclude parties as 
 witnesses on the merits, irrespective of their interest. That there are several such courts 
 we lave already seen. Other cases may be added. Page v. Page, 15 Pick. 368, 373 ; 
 Norton v. Woods, 5 Paige, 249 ; Gilmore v. Bowden, 3 Fair?. 413, 413 ; Kennedy v. Niles, 
 3 Shepl. 54 ; Jackson ex. dem. Titus v. Myers, 11 Wend. 533, 537, per Savage, C. J. And 
 see per Shaw, C. J., in Columbian Manuf. Co. v. Dutch, 13 Pick. 127 ; Benjamin v. Coven- 
 try, 19 Wend. 353. The rule, however, seems to be undergoing a course of relaxation in 
 Massachusetts. Beardslee v. Neal, 16 Pick. 501. In Jackson ex. dem. Titus v. Myers 
 (eupra,), the landlord of a defendant in ejectment was said to be a real party within the 
 rule which would preclude the right of the plaintiff to call him. Therefore, his declara- 
 tions were received against the defendant. In Page v. Page {supra), an executor plaintiff, 
 though indemnified by his cestui que trust against costs, and though released by the de- 
 fendant, was still held incompetent for the latter. 
 
 The sturdy rejection of a party, though entirely disinterested, by the courts in New 
 York, has operated to extend the jurisdiction of chancery there. In a cause by three per- 
 sons as nominal plaintiffs, though only one was interested, tried before Cowen, J., at the 
 Washington circuit, the defendant offered B., one of the plaintiffs, who was willing to be 
 sworn as a witness, against the real plaintiff. The latter objecting to this, and the wit- 
 ness being rejected, the chancellor sustained a bill, filed with the view to be relieved 
 against the rule ; and, in his court, gave the defendant the benefit of the more liberal 
 rule which prevails there. Norton v. Woods, 5 Paige, 249, 351. 
 
 If a party be, in truth, interested, all the books agree that he cannot, if objected to, be 
 received in favor of his interest, even under the more liberal rules of a court of equity. 
 As if he be offered in a cause wherein he has properly been made a party, and therefore 
 may be subject to costs, even though he be not interested in the subject matter. Orms- 
 by's Adm'rs v. Bakewell, 7 Ham. Eep. pt. 1, p. 112 ; Dwight v. Brown, 9 Conn. Rep. 83. 
 
 In Tennessee, the rule sanctioned by many cases in Pennsylvanj,a, that a nominal plaint- 
 iff, who assigned before suit brought, is competent to prove the demand, is denied, 
 though there is a statute in that state expressly exempting the assignor from all liability 
 for costs in such a case. Anderson v. Bradie, 7 Yerg. 397. 
 
 A party may, of course, be made a competent witness by statute, either in his own 
 favor or against himself; as to prove usury, &c. Watkins v. Watkins, 2 Stew. Eep. 485; 
 Laws of N. Y„ BOSS, of 1837, p. 487, ch. 430, § 2. 
 
 In assumpsit, in the name of the assignor of a chose in action, for the benefit of the 
 
BBC. t] 0^ the Incompetence/ of Parties on the JRecord, 29 
 
 •swgnee, the nominal plaintiff teing offered as a witness by the defendant, the Supreme 
 Judicial Court of Maine held him incompetent, and said : " The common law rule is, that 
 a party to the record cannqLbe a witness, unless in actions of tort. In no other case can a 
 party to the record give evidence to go to the jury on the merits of a cause." Hackett v. 
 Martin, 8 Qreenl. 77, 79. 
 
 A party or interested witness is competent to give evidence, preliminary to the intro- 
 duction of secondary evidence. Shrowders v. Harper, 1 Harringt. 444 ; Schuylkill, &c., 
 Navigation Co. v. Diffeback, 1 Teates, 367 ; Woods' Lessee v. Plndall, 1 Wright, 507 ; 
 Drake's Adm'rs v. Vaughan, 6 J. J. Marsh. 145. An administrator was received to show 
 that the book of his intestate was a book of original entries, it appearing that no other 
 evidence of that fact could be obtained. Ash v. Patton, 8 Serg. &^ Rawle, 300, 303. The 
 plaintiff, in an action to recover a lottery prize, was received to show the loss of the 
 ticket (Snyder v. Wolfley, 8 Serg. & Rawle, 328) ; but not till he had proved possession of 
 the ticket in himself by other evidence, which, it was said, might, however, be inferred 
 from hie purchasing it. Id. 330, 331. A stockholder was held competent for his bank, to 
 show that he was the depositary of the corporate muniments. Union Bank, &b., 
 *35 V. *Bidgely, 1 Har. & Gill, 424, 408. In an action against a bank, on its notes, 
 held that the plaintiff might himself testify to their loss by fire ; but not to their 
 contents. Burridge v. Geauga Bank, 1 Wright, 688. A clerk, who has kept the books 
 of the plaintiff's testator, though interested in favoT of the plaintiff, was yet received to 
 state the circumstances, in order to let in the books themselves as secondary evidence. 
 Van Home's Ex'j v. Brady, 1 Wright, 452. 
 
 But this exception to the general rule, which precluded a party, does not prevail in 
 Vermont, where the court refused to receive the plaintiff as a witness to prove the loss 
 of a bond (Penfield v. Cook, 1 Aik. 79) ; nor in South Carolina, where he was rejected as 
 incompetent to prove the loss of a note. Davis v. Benbow, 2 Bail. 427. The court said 
 that chancery, which possesses the power to decree an indemnity, is the best jurisdiction 
 to be resorted to in such cases. The evil of the former practice, in a court of law, has 
 been felt in New York, as to negotiable paper ; and power accordingly given to the courts 
 of law to require indemnity, before permitting the party to recover on his own oath of 
 loss. 2 E. S., 327, 328, §§ 95, 96, (2d ed.) 
 
 It was said in Drake s Adm'rs v. Vaughan (6 J. J. Marsh. 145), that the party's testi- 
 mony of loss of a paper should be confined to such as are in his possession, or under his 
 control. But of this, guere. 
 
 There are two cases in Pennsylvania, in one of which the party in ejectment, and in 
 another an interested witness, were received to testify to the jury as to what were called 
 collateral facts, viz : to identify a certificate of marriagS (Davis v. Houston, 2 Yeates, 289), 
 and to identify the blocks cut from marked trees. Coxe's Lessee v. Ewing, 4 Yeates, 
 429. But the testimony of .a party was denied to prove that he found a paper produced, 
 in a certain place, though said it would have been otherwise, if the court had required 
 information of the place, as a warrant or preliminary to receiving the paper in evidence. 
 Lodge V. Phipher, 11 Serg. & Rawle, 333, 385. And to the latter point, see Union Bank, 
 &c. V. Ridgely, 1 Har. & Gill, 824, 408 ; Edwards v. Nichols, 3 Day, 16 ; and Seekright v. 
 Bogan. 1 Hayw. 178, note. See also Porter v. The Hundred of Regland, P^ake's Add. 
 Cas. 208. 
 
 A person is not disqualified as a witness merely because he happens to be a party to 
 the cause in his corporate capacity, as if he be mayor, president, alderman, director, 
 trustee, or one of the company or commonalty of the corporation suing or sued. But he 
 is still competent, even though interested as a corporator, if the corporation -be public or 
 municipal, and equally so as to a private corporation, if he had no interest, but stands as 
 a mere trustee. In short, he comes within the reason of the rules illustrated by many 
 cases in these xxotea, passim, in respect to receiving corporators, independent of the ques- 
 tion whether they be parties to the record or not. Randel v. The Chesapeake and 
 Delaware Canal Company, 1 Harringt. 233, 895 ; Middletown Savings Bank v. Bates, 11 
 Conn. Rep. 519, 592 ; Van Wormer v. The Mayor, Aldermen and Commonalty of the City 
 of Albany, 15 Wend. 262, 263 ; Methodist Church v. Wood, 1 Wright, 12. And see 
 Selectmen of Bennington v. M'Gennes, 1 N. Chipm. 45. 
 
 The rule has been considered, that one of two joint wrongdoers, against whom nothing 
 is proved, may be acquitted and sworn for his co-defendants. There is no dispute of the 
 rule. Eigdon's Heirs v. Eigdon's Devisees, 6 J. J. Marsh. 58. And some books hold that 
 the courts are bound, in a proper case, to direct an acquittal, even where the defendants 
 have joined in a plea, unless it be one of justification. Bates v. Conlvling, 10 Wend. 389, 
 392, and the cases there cited, though others say it is matter of discretion. Weston, C. J., 
 in Qilmore v. Bowden, 3 Fairf. 412, 414, and the cases there cited ; Sawyer v. Merrill, 10 
 Pick. 18 ; Labar v. Koplin, 4 N. Y. Rep., 546. See post, 48-55. 
 
 But there was some difficulty as to the time when the acquittal should be directed — 
 whether at the close of the plaintiff's proof, or not till the other evidence for the defense 
 be closed. The English judges have recently adopted the former stage. Child v. Cham- 
 berlain, 6 Carr. & Payne, 213. In a trial of replevin under distinct cognizances as to 
 several defendants, the plaintiff having consented that one defendant should be acquitted. 
 
30 Of the Incompetency of the Parties on the Record. [ch. rv. 
 
 *36 *improving the law of evidence (Lord Denman's Act), expressly pro- 
 vides, that it shall not render competent any party to any suit, action 
 or proceeding, individually named in the records The rule, as to the 
 competency of such parties, remains therefore the same as before that act 
 passed ; if they were incompetent then, they are not now rendered competent. 
 
 Ground of incompetency. The incompetency of the parties to the record 
 to give evidence in their own behalf, appears to have been founded upon the 
 sole ground of their being interested in the event. Thus Gilbert, C. B., after 
 stating the general rule, as it formerly stood, that no man interested in the 
 matter in question could be a witness for himself, observes that it is a corol- 
 lary to be deduced from this rule " that the plaintiff or defendant cannot 
 be a witness in his own cause, for these are the persons who have a most 
 immediate interest."(l) And Tindal, C. J., in delivering the judgment of 
 the Court of Common Pleas in Worrall v. Jones, (2) said : " No case has been 
 cited, nor can any be found, in which a witness has been refused upon th.e 
 objection, in the abstract, that he was a party to the suit. On the contrary, 
 many have been brought forward, in which parties to the suit, who suffered 
 judgment by default, have been admitted as witnesses against their own inter- 
 rest : and the only inquiry seems to have been, in a majority of cases, whether 
 the party called was interested in the event or not: the admission or rejec- 
 tion of the witness has depended npon this inquiry." The Court of Common 
 Pleas decided that case, upon the principle that a party to the suit, who has 
 suffered judgment by default, and consents to be examined, and who is 
 called against his own interest. Is competent : " There is no ground," said 
 Tindal, C. J., " either on principle or authority, for rejecting him." 
 
 The parties to the record in civil suits being in general interested both in 
 the question at issue in the cause, and in the question of costs, which com- 
 monly depends upon the event of the cause, it was considered that if they 
 were interested, in either point of view they were incompetent wit- 
 *3'7 *nesses; itiseldom, therefore, happened, that they were competent to 
 give evidence ; and the general rule, as it used to be laid down, was, 
 that a plaintiff or defendant could not be a witness in his own cause. 
 
 As a corollary to this general rule, it follows that statements made by 
 a party are not admissible on his own behalf, as proof of the facts thereia 
 stated. 
 
 It might often be much safer for the purposes of justice to allow a party 
 to be called as a witness for himself, than to admit his statements out of 
 court as evidence in his own favor. 
 
 this was considered equivalent to an actual acquittal of the person under whom the cog- 
 nizance was made, and he was received as a witness for the defendant. King v. Baker, 
 
 2 Adolph. & Ellis, 333. In tort against three, the jury found two guilty and acquitted 
 one. On a motion for a new trial by the two, on the ground of a newly acquired witness 
 in A., by reason of his acquittal, the court allowed that he would be competent on the 
 new trial, though the plaintiff moved for a new trial against him. Ranny v. Church, 
 
 3 Boot, 420. Though one of several defendants sued for a wrong be acquitted in a 
 justice's court, yet, if the opposite party appeal, the former is not therefore a competent 
 witness in the trial of the appeal. Bates v. Conkling, 10 Wend. 389. 
 
 Whether a witness competent as to part of the matter in dispute, should be rejected 
 *)r the whole, the cases are conflicting. And see also per Hosmer, C. J., in Beers v. Broome, 
 
 4 Conn. Rep. 256. The plaintiff called a witness, and by him proved a fact for which he 
 was competent. The defendant then proposed to prove a distinct fact in his own favor, 
 to show which, the witness would have been, if originally introduced by the defendant, 
 incompetent, by reason of interest. The plaintiff objecting, the court held him incompe- 
 tent. Shields' Lessee v. Miller, 4 Harr. & John. 1, 6, 9. Quere. A witness was offered 
 for the defendants, without excepting any of them, and acknowledging that he was not 
 competent for all, being interested in favor of some, was rejected. Held proper. Norton 
 V. Sanders, 1 Dana, 18. ra 
 
 (1) Gilb Evid. 132, (3d edit.) See also by Lord Hardwioke, 3 Atk. 401. 
 
 (2) 7 Bing. 895, 898, 399. 
 
SEC. I.] Of Statements by a Pa,rty. 31 
 
 It has always been considered a strict, rule, of evidence, that statements 
 made by a ' party to a suit, having a direct interest therein, cannot be 
 admitted as proof of the facts stated, against the adverse party, either for 
 himself or for a party jointly sued or suing with him. The reason for this 
 rule mus't be, that reliance cannot safely be placed in the statements of the 
 party, and that they are not free from the suspicion of their having been 
 made for his own use, and in support of his own interest. When a party 
 has not a direct interest, in a suit, so as not to be within the proviso of 
 Lord Denman's Act, he is an admissible witness, and may be called to give 
 evidence : but his statements made out of court would not be admissible ; 
 his evidence on oath being preferable, and a higher species of proof. 
 
 The recent case of Sutherland v. M'Laiighlin, (1) affords a good illustra- 
 tion of this branch of the rule. That case was as follows : A. had brought 
 an action against B., to recover compensation for an injury occasioned by 
 B.'s carriage, and on the trial called C, a surgeon, as a witness to prove the 
 extent of the injury ; C. afterwards sued A. for compensation for his profes- 
 sional services. Cresswell, J., ruled, on the trial of this action, that what 
 C. had stated as a witness in the former trial was not admissible as evidence 
 in his own favor in the pending trial. It was possible that his statement 
 might have been made in contemplation of a suit to be brought by himself; 
 it was, at least, strongly for his own interest. The learned judge con- 
 sidered the statement to be inadmissible, on the ground that a party should 
 not be allowed to make evidence for himself by what he might say in 
 another suit. In this case, it will be observed, the statement made by the 
 plaintiff on the former occasion was held to be inadmissible, though it had 
 been made upon oath. 
 
 It may be material in some cases to prove the demeanor or conduct, the 
 design or intention, of one party to another : in such cases the statement of 
 a party may be admissible as indicative of the mind ; not as proof of any 
 fact which he may have mentioned in his statement — for as such it could 
 not be admitted, — but merely as tending to show what was the disposition, 
 intention or mind of the party. In that point of view, statements by 
 
 parties have been admitted in many cases, civil as well as criminal. 
 *38 *The case of Shrewsbury v. Blount and others (2)will supply an illus- 
 tration upon this subject. That was an action against several 
 defendants for false and fraudulent representations alleged to have been 
 made by them as directors of a joint stock company; on the trial, a conver- 
 sation between two of the defendants, and another conversation between one 
 of the defendants and a third person, were held to be admissible in evidence, 
 for the purpose of showing the iona fides of the defendants. An objection 
 being taken to this evidence, Erskine, J., said, that if the only question 
 between the parties were whether the representations stated in the plead- 
 ings were made by the defendants, and whether they were true, then any 
 conversations between the defendants would be inadmissible ; but that the 
 plaintiff was bound to show that the representations were fraudulent, and 
 that another main question in the cause would probably be the bona fides 
 with which the representations were made ; and he was of opinion that 
 every information which the defendants received before. they made such 
 representations, would be matter to be taken into consideration with refer- 
 ence to that point. Upon this ground he admitted the proposed evidence : 
 and the Court of Common I*leas afterwards, on a motion for a new trial, in 
 which the point was briefly mentioned, confirmed his opinion. 
 
 (1) Gar. & M. 429. 
 
 (3) 2 M. & G. 475 ; S. C, 8 Scott, 588. So a conversation between tlie parties imme- 
 diately after the transaction may be shown to establish the want of good faith in the sale 
 or leasing of property. Thomas v. Beebe, 25 N. Y. 244; Bennett v. Judson, 21 N. Y. 
 238 ; Sharp v. Mayor, &c., of N. Y., 40 Barb. 256 ; post, p. 188. 
 
32 PUrly not named on the Jlecord. £ch. it. 
 
 The statements made by the third person to one of the defendants appear 
 to be admissible, as tending to show that he believed, or at least that he had 
 some ground for believing, that the representations made by them (which 
 agreed with these statements), were true: and the statements majde by the 
 defendant to his co-defendant were admissible, in the same point of view, 
 on behalf of the latter. If it could be inferred from the conversations that 
 the defendant actualVy believed the statements to be true, it would be clear 
 that they were admissible : it could only be from some doubt as to their 
 actual belief, that the evidence was at all questionable. 
 
 In an action for a malicious prosecution before a magistrate, charging the 
 plaintiff with a felony, a deposition made by the defendant, the prosecutor, 
 would not be admissible in his defense as proof of a felony committed, or 
 as J)roof of any facts sWorn to by the defendant ; but it might be admissi- 
 ble as showing the grounds on which he acted, aiid that he was not acting 
 from malice. Thi^ seems to have been the opinion of Tindal, C. J., in the 
 case of Jackson V. Bull,(l) which was an action of that description. The 
 chief justice is, there reported to have said : " In prosecutions, the party for 
 the purpose of public justice is bound to give his evidence on oath, and in 
 such an action as this, such oath is evidence for him, as showing the grounds 
 on which he aoted." And so it is laid down in BuUei-'s Nisi Priu8,(2) 
 *39 that " In an action for a malicious prosecution, for the *purpose of the 
 defendaMs showing a probable cause, ■proof of the evidence given by 
 the defendant oh the indictment is good." 
 
 In connection with this subject the case of Jones v. Morrell(3) may be 
 mentioned. That was an action for false imprisonment, in which the 
 defendant pleaded a justification, that the plaintiff, being his servant, had 
 been guilty of embezzlement. The plaintiff had been taken before a magis- 
 trate on this charge, and the defendant and his witnesses had made deposi- 
 tions, and the plaintiff had made a statement in answer ; and it was ruled 
 that these depositions were receivable in evidence, as being matters stated 
 in the presence of the plaintiff, to which he made an answer ; but that they 
 were not proof of any fact therein stated. 
 
 A few examples will now be given of cases formerly decided, which 
 under Lord Denman's Act would be decided differently ; as well for the 
 purpose of contrasting the present with the past state of the law, as also to 
 show the operation of the new act. 
 
 M&mbers of corporations and others. The same principles, which render 
 parties to the record incompetent, when suing or sued in their "'individual 
 capacities, were formerly held to apply to members of a corporation suing 
 or sued in its corporate name. Thus, in ejectment for lands of a corpora- 
 tion, a member of the corporation was deemed an incompetent witness, if 
 interested either in the lands sought to be recovered, or in the general 
 funds of the corporation which were liable to the costs of the action. (4) 
 But as Lord Denman's Act provides that the operation of this act is not 
 to extend to any party to a suit individually nam^d in, the record (the 
 words are, "such person shall not be rendered competent"), it impliedly 
 
 (1) 2 M. & Rob. 176. 
 
 (3) P. 14, citing Cobb v. Oar, Midd. Mioh. 1746. In p. 15, of the same book, it is said 
 that 8uch evidence may be given to prove Vie felony. But, it should seem, this would not 
 now be admitted. 
 
 (3) 3 C. & Kir. 266. 
 
 (4) Doe V. Tooth, 3 Y, & J. 19 ; Godmanchester (Bailiffs) v. Phillips, 4 A. & E. 550. In 
 Weller v. Foundling Hospital (Governors) (Peake N. P. C), an action against parties sued 
 in a corporate capacity, Lord Kenyon admitted several persons as witnesses for defend- 
 ants, not having an individual interest in the question, and who were not peraonaUy liable 
 to costs. If they had been so personally liable. Lord Kenyon would have rejected them. 
 But under Lord Denman's Act they would be admissible. 
 
SEa l.J Party not named on the Hecord. 33 
 
 enacts, that all parties not individually named are within the beneficial 
 clause, and shall not be excluded by reason of interest. There can be no 
 doubt, therefore, that members of a corporation, although interested, if 
 not individually named in the record, are now rendered admissible. It 
 was probably with a view to cases of this nature that the provision referred 
 to in the statute is limited to parties individually named in the record ; 
 a provision which will not apply where the members of a corporate body 
 sue, or are sued, in its corporate or aggregate name. 
 
 In proceedings against the inhabitants of parishes and other districts, 
 
 relative to settlements or repairs of highways and bridges, and in other 
 
 cases affecting the rates of jfarticular districts (the proceedings being 
 
 *40 *nominally by or against all the inhabitants of the district, and not 
 
 against any individually), rated inhabitants nvere formerly adjudged 
 
 to be incompetent, by reason of their interest in the event of the 
 
 *41 suit ;(l) though *inhabitants not rated were considered competent. 
 
 (1) See Doe d. Harrison v. Murrell, 8 C. & P. 124. 
 
 Inhabitants of an incorporated village are competent witnesses at common law, in an 
 action against the corporation, to recover real property ; their interest as corporators is 
 too remote and contingent to disqualify them. Hunter v. Trustees of Sandy Hill, 6 Hill 
 R. 407. 
 
 Note 30. — On a complaint by a woman agaj£st a man, pursuant to the statute, charg- 
 ing him with being the father of a bastard chSl^ of which she had been delivered, the 
 complainant is a competent witness, although interested ; but as a prerequisite to her 
 admission, her credit must be fortified by her having charged the defendant in the time 
 of her travail, which is a time of distress and danger, when it may be supposed she would 
 speak the truth ; and it is not sufficient that she charge him about the time of her travail ; 
 she must also have continued constant in her accusation, or at least it must not appear 
 that she has been inconstant ; and she must have been examined on oath before a j ustice, 
 on the several circumstances of her complaint, necessary for the discovery of the truth. 
 But, in such cases, the complainant is not a competent witness to prove that these prere- 
 quisites have been complied with ; for her testimony cannot be received to facts equally 
 within the knowledge of other persons, who are disinterested. Drowne v. Stimson, 2 
 Mass. Rep. 441 ; Commonwealth v. Cole, 5 Id. 517. 
 
 In Connecticut, a female may (by statute) maintain an action for seducing and getting 
 her with child, and is admissible as a witness to support it. Vide 6 Conn. Kep. 44. And 
 on this statute, it being stated by one of the defendant's witnesses that she had admitted 
 that the defendant was not the father of her child, she was received as a witness to con- 
 tradict him. Judson v. Blanchard, 4 Conn. Rep. 55. It is essential that she should be 
 sworn in this action, though otherwise of a suit in behalf of the town. Chaplin v. Harts- 
 home, 6 Conn. Rep. 41. 
 
 An inhabitant of the place is a witness against the surety of the collector, ex necessitate, 
 though liable to be reassessed if the surety should fail. Middleton v. Frost, 4 Carr. & 
 Payne, 16. 
 
 In an action against an innkeeper for money lost in his house, it was doubted whether 
 the plaintiff was competent to prove the contents of the bag delivered to be kept for him. 
 Sneider v. Geiss; 1 Yeates, 34. Though the court strongly inclined to receive the evidence 
 on the authority of 13 Vin. 34, pi. 34 ; and in Herman v. Drinkwater (1 Greenl. Rep. 37), 
 the owner of goods was received to prove the delivery of his trunk and its violation, in a 
 similar action by him against the master of a vessel. 
 
 The case above cited from 13 Vin. 24, pi. 34, is thus stated : "On a trial at Bodmyn, 
 Coram Montague, B., against a common carrier, a question arose about the things in a 
 box ; and he declared that this was one of those cases where the party himself might be 
 a witness, propter necessiiatem rei. For every one did not show what he put into his box. 
 
 By a statute in South Carolina, the defendant's testimony is received to prove the 
 defense of usury, unless the plaintiff will deny on oath the facts to which the defendant 
 proposes to depose. Layten v. Haygood, 3 Bay, 177. So by a statute in Massachusetts, 
 the usury may be proved by the defendant's oath against the original creditor. Binney 
 V. Merchant, G Mass. Rep. 190. 
 
 * * Provision has been made, by statute, in New York, for examining parties to the 
 record, as witnesses, in a variety of cases. A party may be called by his adversary to 
 prove xisury. Laws of N. Y., sess. of 1837, p. 487, § 3. By another statute (Laws of N. 
 Y., sess. of 1847, p. 680, § 1), " Any party in any civil suit or proceeding, either in law or 
 equity, had before any court or officer, may require any adverse party, whether complain- 
 ant, plaintiff, petitioner or defendant, or any one of said adverse party, and every person 
 who is beneficially interested in said suit or proceeding, though not nominally a party, to 
 
 Vol. I. 5 
 
34 Party' sued as Thistee. [ch. iv. 
 
 Under Lord Denman's Act, they ■would not have been excluded on the 
 ground of interest. But, before the act, rated inhabitants had been rendered 
 competent by statute. (1) 
 
 W here the party to an action was sued as a mere trustee for another person, 
 though he had no interest in the question in dispute, he was, nevertheless, 
 liable to costs ; and on that ground was, before Lord Denman's Act, con- 
 sidered incompetent as a witness. (2) Thus a prochein ami, or guardian, 
 suing for an infant, was incompetent upon this ground. (3) But it has been 
 decided, since Lord Denman's Act, that a prochein ami suing for an infant 
 is admissible, (4) It was contended that he came within the provision 
 therein, as being a party to the action individually named in the record ; the 
 court, however, decided that he was not a party to the suit, any more than 
 the attorney on the regard in an ordinary case ; and that any objection to 
 him as a witness, on the ground of liability to costs, was removed by the 
 general enactment of Lord Denman's Act. 
 
 In a case which occurred before Lord Denman's Act, (5) where parochial 
 trustees were empowered by statute to sue in the name of their treasurer or 
 clerk, and the act contained a provision for reimbursing such treasurer 
 or clerk his costs out of the rates, Lord Tenterden, C. J., appears to have 
 considered that, in an action brought in the name of the treasurer, a 
 *42 *trustee was an incompetent witness for the plaintiff, although the 
 trustees took no benefit under the statute, and rated parishioners 
 were thereby made competent witnesses. The ground of this opinion seems 
 to have been, that the trustees were the substantial plaintiffs. But it would 
 now be an answer to such an objection, that the trustees were not individu- 
 ally named as parties in the record, and therefore were not to be excluded 
 
 give testimony under oatli in such suit or proceeding ; and suet adverse party may be 
 examined orally, or under a commission, in the same manner as persons not parties to 
 Buch suit or proceeding, and who are competent witnesses ' thereip." But v. still more 
 sweeping change has recently been made by the legislature, upon ttie recommendation of 
 the codifiers of the Pleadings and Practice. Laws of N. Y., sess. of 1848, p. 559, 560, §§ 
 343 to 850, both inclusive. Suits for a discovery, " in aid of the prosecution or defense of 
 another action," are abolished. A party may call and examine his adversary "as any 
 Qther witness, to testify, either at the trial, or conditionally, or upon commission ;" and 
 the adverse party may be examined, prior to the trial, on a five days' notice, before a 
 county judge, or judge of the court where the cause is pending. " A party examined by 
 an adverse jjarty, as in this chapter provided, may be exanjined on his own behalf, in 
 respect to any matters pertinent to the issue. But if he testify to any new matters, not 
 re-sponsive to the inquiries put to. him by the adverse party, such adverse party may offer 
 himself as a witness on his own behalf, in respect to the new matter, and shall be so 
 received." Id. § 349. " A person for whose immediate benefit the action is prosecuted or 
 defended, though not a party to the action, may be examined as a witness in the same 
 manner, and subject to the same rules of examination, t^s if he were named as a party." 
 Id. g 350. 
 
 (And a party may be examined on behalf of his co-plaintiff or co-defendant as to any 
 matter in which he is not jointly interested, or liable with such co-plaintiff or co-defend- 
 ant, and as to which a separate and not joint verdict or judgment may be rendered. 
 Amendments of 1851 & 1853 ; Beal v. Finch, 1 Kernan R. 128. And now by chapter 353 
 of the law of 1857, the parties to the suit are made competent witnesses in their own 
 behalf, due notice having been given of the intention to examine them. This puts an 
 end, in this state, to all questions of competency i« I'egard to interest, and is a much 
 more sweeping provision than that made by the English statutes.) See post as to 
 decisions under the Code of N. Y. 
 
 (1) The incompetency of rated inhabitants was removed, partially, by the 54 Geo. Ill, 
 c. 170, § 9, and some other statutes, and entirely by the 3 & 4 Vict. c. 26. 
 
 (2) Per Our., Dowdeswell v. Nott, 3 Vern. 317 ; Davis v. Morgan, 1 Tyrwh. 457 ; S. C, 
 1 C. & J. 87 ; Bauerman v. Radenius, 7 T. R, 668 ; Phillips v. Buckingham (Duke), 1 Vern. 
 230. See also the cases cited 13 Price, 512. 
 
 (3) Clutterbuck v. Huntingtower (Lord), 1 Stra. 605; James v. Hatfield, 1 Stra. 548; 
 Hopkins v. Neal, 2 Stra. 1025 ; Gilb. Evid. 107. 
 
 (4) Sinclair v. Sinclair, 13 M. & W. 640. 
 
 (5) Whitmore v. Wilks, M. & M., N. P. C. 214. 
 
8BC. I.] Parochial Trustees. 35 
 
 by reason of interest. In a case in the Court of Exchequer,(l) -which 
 *44 was *also before Lord Denman's Act, it was decided, that a parochial 
 
 (1) FletcUer v. Greenwell, 5 Tyrwh. 316. 
 
 Note 31. — So the trustees of a charitable society are Competent witnesBes in support 
 of a will under which they take as legatees or devisees in trust for the benefit of the in- 
 stitution. Nason v. Thatcher, 7 Mass. Rep. 398 ; Corn well v. Isham, 4 Day, 85. In England 
 there seems to be no general rule adopted when the members of corporations shall be 
 admitted or refused as witnesses in actions for or against corporations ; but every .ease 
 seems to stand upon its own circumstances ; that is, whether the interest be so valuable 
 that it may be presumed to occasion partiality. Swift's Ev. 57. But in Connecticut this 
 general rule has been adopted ; that in all cases where the corporations which are of a 
 public nature, and comprehend the divisions of the state, such as counties, towns, societies 
 and school districts, are parties on record, or interested in the suit, the members of the 
 corporations are competent witnesses ; for they are not considered as having a personal, 
 but a corporate interest, which ought to go to the credit, and not to the competency, and 
 there are many instauces where, if they were excluded, no testimony could be obtained. 
 Id.; Smith v. Barber, 1 Root, 307. But with regard to corporations of a private nature, 
 instituted for special purposes, as banks and turnpike companies, their interest is so direct, 
 and there being no necessity that they should be witnesses, they have not been allowed 
 to testify. Swift's Ev. 57. And see Skelton v. Tomlinson, 8 Root, 133. It will be seen, 
 probably, to be the result of the cases there cited, that members of public corporations 
 are receivable, while those of corporations, whose main object is private, shall be excluded. 
 
 It has accordingly been holden in New Jersey, that the inhabitants of a town are good 
 witnesses, in a cause in which the town is interested and virtually a party. Schenck v. 
 Corshen, 1 Coxe's Rep. 189 ; Overseers of Orange v. Overseers of Springfield, 1 South. 
 Rep. 186. And see Schenck v. Stevenson, 1 Penning. Rep. 387. 
 
 In Pennsylvania a distinction was made in one case between a taxable inhabitant of a 
 public corporation, and one actually rated; the former being held competent, the latter 
 not. Commonwealth v. Baird, 4 Serg. & Rawle, l4l. An inhabitant of the place is a 
 witness against the surety of the collector, ex necessitate, though liable to be re-assessed if 
 the surety should fail. Middleton v. Frost, 4 Carr. & Payne, 16. 
 
 Upon an issue whether a certain messuage is situated within a cliapelry, a person who 
 occupies ratable property within the chapelry, is a competent witness to prove that it is. 
 Though his testimony might increase the number of contributors, yet it might also in- 
 crease his burden by increasing the number of claimants for seats and sepulture. But it 
 was held to be a case also within the statute 54 Geo. Ill, c. 170, § 9. Marsdon v. Stans- 
 field, 7 Barnw. & Cresw. 815 ; S. C, 1 Mann, & Ryl. 669. On a justification in trespass, 
 that the loeus in quo is a free wharf for the inhabitants of 0., one of those inhabitants is 
 not competent for the defendant, unless the justification be waived. Prewitt v. Tilly, 1 
 Carr. & Payne, 140. 
 
 In New York, it was held that the interest arising from being a ratable inhabitant, is 
 too remote to prevent his being a witness for the town, as in actions on bastardy bonds 
 (Falls V. Belknap, 1 John. Rep. 486), or for penalties in qui tarn actions. Corwein v. Hames, 
 11 John. Rep. 76 ; Bloodgood v. Overseers of Jamacia, 13 Id. 385. And see particularly, 
 The City Council V. King, 4 M'Cord, 487. It will be seen by these notes that we stand, 
 by common law, very nearly on the footing of England upon the statute 54 Geo. Ill, c. 
 170, § 9, cited in the text, and which is given at lengih in a note to Marsdon v. Stansfield, 
 supra, 1 Mann. & Ryl. 670 ; 6 Hill, 407. 
 
 An inhabitant of a state, where the state is a party, is a competent witness for the 
 Btate,notwithstandingany interest he may have, as such inhabitant, in the event of 
 *43 the suit. The State *of Connecticut v. Bradish, 14 Mass. Rep. 396. And see James, 
 6 Gould V. Cowen's Kep. 369, S. P. 
 
 By a decided balance of the cases it will be perceived that a corporator of a state, county, 
 town village, or other corporation formed for municipal purposes, is a competent witness 
 in be,half of his corporation, in respect to corporate claims, or liabilities of all kinds, if he 
 have no personal interest beyond that of a corporator. The rule is well expressed, with 
 its principle, in Willcock on Municipal Corporations, p. 146, § 350. And see per Wal- 
 worth, C, In the Matter of Kip, 1 Paige, 601, 613. The doctrine has been applied, by the 
 following cases, to the corporator of a town : Canning v. Pinkam, 1 N. Hamp. Rep. 353 ; 
 Smith V. Barber, 1 Root, 307, 308; Eustis v. Parker, 1 N. Hamp Rep. 273, which refers to 
 and considers numerous English and American cases ; to an inhabitant of an incorporated 
 village (Trustees of Watertown v. Cowen, 4 Paige, 510, 518) ; again, to a corporator of a 
 town (Orange v. Springfield, 1 South. 186 ; Schenck v. Corshen, County Collector, 1 Coxe, 
 189 ; Fuller v. Hampton, 5 Conn. Rep. 416 ; Pond q. t. v. Sage, 1 D. Chipm. 350 ; Mayor 
 and Aldermen of Jonesboro' v. M'Kee, 3 Yerg. 167 ; Doe ex dem. Jackson v. Commission- 
 ers of Hillsborough, 1 Dev. & Batt. 177) ; to members of charitable corporations (Methodist 
 Church V. Wood, 1 Wright, 13) ; of a civil district charged with the support of the poor 
 (State V. Davidson, 1 Bail. 35) ; to inhabitants of a county (Board of Justices of Burlington 
 
36 Parochial Trustees. [ch. rv. 
 
 director was competent, under circumstances similar to those of the pre- 
 ceding case; and this decision was upheld in a later case.{l) 
 
 V. Fennimore, late county collector, 1 Coxe, 190) ; to the inhabitants of a city (Mayor, &c. 
 V. Wright, 3 Porter, 230 ; Maysville v. Shultz, 3 Dana, 10 ; Van Wormer v. The Mayor, 
 &c., of Albany, 15 Wend. 262) ; and to corporators of Irishes and school districts. Con- 
 gregational Society, &c. v. Perry, 6 N. Hamp. Rep.' 164. The contrary doctrine was 
 formerly held in Vermont. Chester v. Eockingham, Brayt. 239. 
 
 In consequence of the doctrine being left questionable by the cases at common law, as 
 in Pennsylvania (Commonwealth v. Keighler, Whart. Dig. 330, pi. 710, (2d ed.) ; Common- 
 wealth V. Baird, 4 Serg, & Rawle, 141), it is sometimes declared by statute. Thornbury 
 V. Directors of the Poor, &c., 13 iSerg. & Rawle, 110 ; M'Farland v. Commissioners of 
 Moyamensing, 12 Serg. & Rawle, 397 ; Van Wormer v. The Mayor, &c., of Albany, 15 
 Wend. 262, 263 ; 1 R. S. 376, (2d ed.) § 4 ; Doe ex dem. Higgs v. Cockell, 6 Carr. & Payne, 
 525. 
 
 In an action by a road commissioner, in his own name, on a bond for work given to his 
 predecessor, the latter was held a competent witness for the plaintiff. Cox v. Way, 8 
 Blackf. 143, 145. 
 
 The general result of the cases is well expressed by the Supreme Court of Ohio, in 
 Methodist Episcopal Church of Cincinnati v. Wood (5 Ham, 583,' 584.) "In cases where 
 corporations of a publiD rwture, comprehending the divisions of the state, or institutions 
 for charitable or pious purposes, such as counties, towns, school districts, religious or 
 charitable societies, are parties to the record, or interested, the members of the corpora- 
 tion, having no individual interest, are competent witnesses." And see per Hitchcock, J., 
 in Mayor, &c. v. Wright, 2 Porter, 235. Those adjudged cases which present any diffi- 
 culty in reaching this result, are well considered by Johnson, J., in State v. Davidson (1 
 Bail. 35, 36 to 38.) See also Lancum v. Lovell, 6 Bing. 465, though the English cases are 
 by no means to be considered as going the length of the above doctrine. Bated inhabit- 
 ants or members of municipal corporations, are still excluded there independently of 
 certain statutes. Tothill v. Hooper, 1 Mood. & Rob. 392 ; Oxenden v. Palmer, 2 Barn. & 
 Adolph. 236 ; Rex v. Bishop Auckland, 1 Adolph. & Ellis, 744 ; Davis v. Morgan, 1 Tyrwh. 
 457. They are, as heretofore, admissible if not actuaMy rated ; but merely liable to be so. 
 Per Bayley, J., in Marsdon v. Stansfield, 7 Barn. & Cress. 815 ; Doe ex dem. Hobbs v. 
 Cockell, 4" Adolph. & Ellis, 478. 
 
 If the corporation be for private purposes, as a bank, turnpike company, &c. (Robertson, 
 C. J., in Maysville v. Shultz, 3 Dana, 13, 14 ; Methodist Church v. Wood, 1 Wright, 12), 
 or the corporator be offered to establish some private right, beneficial to himself, he is 
 incompetent in behalf of his corporation. See the cases in the same noteS above cited, 
 passim. Per cur. in Euatis v. Parker, 1 N. Haijap. Rep. 375 ; Williams, J., in Mayor of 
 Jonesboro' v. Roe, 2 Yerg. 167, 169. This doctrine was applied to the corporator of a 
 turnpike company, though he had sold his stock, for he had guaranteed that it should 
 bring thenar price to the vendee. Grayble v. York, &c., Co., 10 Serg. & Rawle, 369. It 
 was held generally applicable to the stockholder of a bank, though held that he might be 
 sworn to prove himself the past or present depositary of the corporate muniments. 
 Union Bank, &c., v. Ridgely, 1 Harr. & Gill, 334, 408. So the rule is applicable to the 
 incorporated society of Shakers, for whom the deacons are trustees. Yet to disqualify a 
 member, the act in respect to which he is called to testify must have been performed by 
 them as trustees. And in a case where they are sued as sureties for one member of the 
 Society for her private debt, another may be a witness for them. Richardson v. Freeman, 
 6 Qreenl. 57, 58, 59. A mere trustee of a savings bank, not being either a stockholder or 
 depositor, was held a competent witness for the Institution. Middletown Savings Bank 
 V. Bates, 11 Conn. Rep. 519. But the trustee and corporator of a private incorporation 
 for embanking meadows, was held incompetent for the plaintiffs in an action to recover 
 an assessment. Crozer v. Leland, 4 Whart. 18. 
 
 The result of the cases, as to the competency of private corporators, is well summed 
 up by the Supreme Court of Ohio in Methodist Church of Cincinnati v. Wood, supra. 
 " Where corporations of a private nature instituted for special purposes and private 
 emolument, such as banks, insurance, turnpike and canal companies, bring suit, the 
 interest of the corporators is direct, and they are incompetent to testify in support of 
 their claim." Of course, it is the same where the corporation is a defendant. 
 
 (The following decisions under our code, permitting a co-plaintiff or co-defendant to be 
 called and sworn as a witness in the cause in cases where a separate j udgment might be 
 rendered, may be referred to as illustrating the common-law rule, as well as the princi- 
 ples of construction applicable to statutes of this kind — enabling statutes : Thompson v. 
 Blanchard, 4 Comst. 303 ; Labar v. Koplin, 4 Comst. 540 ; Ladue v. Van Vechten, 8 Barb. 
 664 ; Parsons v. Pierce, 8 Barb. 655 ; Fort v. Gooding, 9 Barb. 371 ; Rich v. Husson, 4^ 
 Sand. 115 ; 11 Barb. 615 ; Munson v. Hegeman, 10 Barb. 113 ; Finch v. Cleveland, 10 Barb. 
 290 ; Beal v. Finch, 1 Kernan, 138.) See post where the recent decisions under the code 
 are collected. 
 
 (1) M'Gahey v. Alston, 2 M. & W. 206. 
 
SEC. I.] Party named in Recoi-d hut not used. , 37 
 
 _ In an action of tort, -where a particular person is named in the declara- 
 tion, as having been engaged, together with the defendant, in committing 
 the alleged injury, but has not been made 'a defendant in the suit, he will 
 be a competent witness. This was so decided at Nisi Prius under the old 
 law.(l) And it is clear that he would be competent under the new act. 
 For though the person offered as a witness is individually named in the 
 record, he is not individually named therein as party to the suit, and there- 
 fore is within the enacting clause of the new act. 
 
 The effect of a judgment by default, of a nolle prosequi and of a separate 
 verdict, will now be considered. 
 
 Questions with regard to the competency of parties on the record have 
 frequently arisen in actions against several defendants, one of whom has 
 been placed in a different situation on the record from that of his co-defend- 
 ants, in consequence of a judgment by default, or nolle prosequi, or a 
 separate verdict on the trial. In these cases the inquiry has been, whether 
 the effect of the particular proceeding with regard to the party offered as a 
 witness, has been to remove his interest at the trial ; if such appeared to be 
 the case, he was considered competent : but if he still appeared to have an 
 interest in the determination of the cause in favor of the party on whose 
 behalf he was offered as a witness, he was rejected as incompetent. The 
 competency of these parties, who are individually named in the 
 *45 record, is nat affected by Lord Denman's Act, and the law *respecting 
 their admissibility is not altered. For that statute, as has been 
 before observed, enacts, " that no person offered as a witness shall hereafter 
 be excluded by reason of incapacity from interest ; and afterwards provides, 
 that the act " shall not render competent any party to any suit, &c., indi- 
 vidually named in the record." The statute does not enact that parties to 
 the suit shall not be competent, but, by the enacting clause, which abolishes 
 the general incapacity- on the ground^f interest, merely that they shall not 
 be rendered competent. Consequently, where, by the rule of law as it 
 existed before the passing of that act, such parties were competent, they 
 still are so : the new act with respect to them having made no alteration 
 of the law. (2) 
 
 First, Of the effect oi a judgment by default. 
 
 There has been heretofore much contrariety of opinions and decisions 
 upon the effect of a judgment by default, respecting the admissibility of a 
 co-defendant. But, within a few years, some well considered judgments 
 have been delivered upon these questions, and the law is now in a more set- 
 tled state. The points to be considered relate, first, to the admissibility of 
 
 (1) Poplett V. James, B. N. P. 286. 
 
 (2) This has been so ruled by Cresswell J., at Nisi Prius (Dresser v. Clarke, 1 C. & Kir, 
 569) J and though a bill of exceptions was tendered to this ruling, the case does not seem 
 to have been carried further. The judge subsequently granted a certificate for speedy 
 execution notwithstanding the bill of exceptions.- Id. p. 753. 
 
 , Under the statute of this state allowing co-plaintiffs and co-defendants to be called as 
 witnesses for each other, in cases where a separate ludgment might be rendered, it has 
 been held that in an action for a tort — i. e., an assault and battery — the defendants having 
 put in separate answers, are each of them competent witnesses for the others. Beal v. 
 Finch and others, 1 Kernan R. 138 ; Parsons v. Pierce and others, 8 Barb. 655. But a 
 party was not held a competent witness for his co-plaintiff or co-defendant in an action 
 on a joint contract, though he was held competent in cases where the contract was both 
 joint and several. Ladue v. Van Vechten, 8 Barb. 664. In other words, the statute obvi- 
 ated the technical objection to the witness arising from the fact of his being a party to 
 the record ; but did not make him competent, where he was otherwise disqualified. Rich 
 V. Husson, 4 Sand. 115. And therefore it was held that one of several defendants sued 
 for a tort and offered as a witness, must be sworn, and the objection to his evidence made 
 when offered. 4 Duer Kep. 53. 
 
 Under the 6th and 7th Victoria, the testimony of a defendant in favor of a co-defendant 
 was rejected as inadmissible where it proved his own defense^ Triston v. Hardej;^, % Eng, 
 Law and Eq. K. 204. 
 
3§ Eff'ect of Jiidgment by Default. ^ [ch. it. 
 
 defendants for or against co-defendants, in actions on contract ; and secondly, 
 to their admissibility for or against co-defendants in actions on tort. 
 First, of the admissibility of 3, co-defendant in an action on contract. 
 
 Action on contract. In an action against two defendants on a joint con- 
 tract, it was ruled by Lord Kenyon, C. J., that one of them who had sujffered 
 judgment by default was incompetent as a witness for the other, for the 
 purpose of negativing the contract ; for if negatived as to one, the contract 
 failed as to the other, and the plaintiff could make no use of his Judg- 
 *46 ment by default *against the witness, who was consequently inter- 
 ested in obtaining a verdict for the defendant. (1) 
 
 (1) Brown v. Fox, MS. Ex. Ass.. 1789; cited by Dallas, J., 8 Taunt. 141. See also in 
 Bell V. Banks, 3 M. & G. 261. 
 
 See Triston v. Hardey, mpra, 7 Eng. Law and Eq. E. 204 ; under our code see Ladue v. 
 Van Vegliten, 8 Barb. 664. The plaintiff may, it seems, in an action of assumpsit, call a, 
 defendant who has put in no defense, and has no interest in favor of the plaintiff, on the 
 trial of the issue raised by his co-defendant (Kincaid v. Puree), 1 Smith, 164); and where 
 one of the defendants pleads infancy, the court may allow the court to pass upon that 
 issae first, and then, it being found in his favor, allow him to be sworn and examined as 
 a witness in the cause. Rohrer v. Morningstar, 18 (3hio, 579. But a^efendant sued on a 
 joint contract or liability is not in general a competent witness in tlie action. Oakley v. 
 Aspinwall, 3 Sand. R. 7 ; Slegg v. Phillipps, 31 Com. Law R. 874. 
 
 Note 22. — Where, in an action on a promissory note, it appeared that J. and K., two 
 of the defendants, had been discharged under the insolvent act, and u, release from the 
 other defendants was produced, releasing J. and K. from all claims that might arise out 
 of the prosecution of this suit, the defendants moved that the jury be directed to acquit 
 J., so that the other defendants might have^the benefit of his testimony ; it was held, 
 that in cases arising on contract thia-could not be done, and that there was no rule of 
 evidence which permitted a party to the record in such cases to testify. Woodworth, J., 
 who delivered the opinion of the court, said the objection rested on his being a party to 
 the record, an(J. argued that the rule excluding a party did not depend wholly on interest, 
 but that motives of policy were called in foif the purpose of resisting the testimony in 
 Buch cases, and thereby prevent the consequences supposed to result from its admission. 
 Schermerhorn v. Schermerhorn, 1 Wend. 119. But in Affalo v. Fourdrinier (6 Bing, 806), 
 and Bate v. Eussell (1 Mood,''& Malk. 832), the decisions were directly opposed to the 
 above New York case, though the latter case was sanctioned in Supervisors of Chenango 
 V. Birdsall (4 Wend. 453). The amount of the two English cases last cited is, that where 
 the defense is matter of personal discharge for the co-defendant, and is fully made out, 
 and he stripped of his interest, he may be received the same as in tort. In one of these 
 cases, the witness was first acquitted by verdict, and in the other a noUe prosequi was first 
 entered as to him. Kimball v. Lamson (2 Verm. Rep. 138, 143) sanctions the principle of 
 these cases. .And see Hartness v. Thompson, 5 John. Rep. 160. In the case just cited 
 from 2 Verm. Rep., it was held that one defendant in assumpsit, having suffered a default, 
 could not be called as a witness for the other. So In a suit against two on contract, 
 though one be misnamed (George for Gabriel F.) and returned non est inventtis, he is not 
 admissible for the other. Van Norden v. Striker, 9 Wend. 286. Whether, in an action 
 ex contractu against several defendants, some of whom plead matter negativing the action 
 with respect to all, and the other pleads his bankruptcy only, on which the jury find a 
 verdict for him, ho is a competent witness, after that verdict returned, to prove the plea 
 of the other defendants. Quera. Bate v. Eussell, 1 Mood. & Malk. 333. 
 
 And see the case of The People v. Bill ; also per Wilde, J., in Commonwealth v. Marsh, 
 10 Pick. 57, 58, and Campbell v, The Commonwealth, 3 Virg. Cas. 314. 
 
 The first case seems rather to question Rex v. Fletcher, and to sanction Rex v. Lafone, 
 cited in the-text ; the second to recognize Rex v. Fletcher, and to deny Eex v. Lafone. The 
 last, without questioning Rex v. Fletcher, recognizes Rex v. Lafone. 
 
 Eex V. Lafone has been disregarded in practice in Massachusetts. Per Wilde, J., 10 
 Pick. 58. 
 
 The defendant was indicted jointly with another person for an assault and battery. 
 The defendants pleaded separately, not guilty. One defendant elected to be tried 
 separately, and his trial came on first. The prosecutor and the two defendants were the 
 only persons present at the time of the fray. After the testimony for the prosecution 
 had been produced, the defendant now on trial offered to prove his defense by the other 
 person named in the indictment. Per Curiam It appeors to be a technical rule of 
 evidence, and one well settled, that a party in the same suit or indictment cannot be a 
 witness for his co-defendant, until he has been first acquitted, or at least convicted. 
 ■\Vliether the defendants be tried jointly or separately, does not vary the rule. It. is hia 
 
SEC. I.] ^ect of Judgment by Default. 39 
 
 *47 *It has 136611 held, however, that a defendant who had suffered judg- 
 ment by default was competent to produce, on behalf of a co-defend- 
 ant, a partnership deed under which they had been acting in their dealings 
 with the plaintifi:(l) " 
 
 In the cases of Brown v. Brown, (2) Green v. Sutton, (3) and Mant v. 
 Manwaring,(4) it was decided, in actions against several defendants on a 
 joint contract, that one defendant who had suffered judgment by default 
 was not competent as a witness for the plaintiff agairist his co-defendants ; 
 because if the plaintiff should succeed in the action, the witness would be 
 entitled to contribution from his co-defendant ; but if the plaintiff should 
 fail, the witness would himself be liable for the whole demand. But in the- 
 later cases of Worrall v. Jones,(5) and Pipe v. Steel,(6) the decisioue have 
 been different; it was adjudged that a defendant in that situation was 
 admissible, and the older cases, above mentioned, are overruled. 
 
 In the case of Worrall v. Jones, (5) which was an action on a bond 
 against a principal and two sureties, the Court of Common Pleas decided 
 that a defendant, the principal in the bond, who had suffered judgment by 
 default, would be a competent witness against the other defendants. In 
 giving judgment in this case, Tindal, C. J., said, no objection could arise 
 on the ground that the witness was interested to procure a verdict for the 
 plaintiff, inasmuch as, being the principal debtor, he could not call for con- 
 tribution from the other defendants, but was himself ultimately liable 
 to all the damages and costs recovered in the action ; and that there 
 *48 *was no case which decided that a witness would be disqualified 
 merely from being a party to the suit, if he was not interested in giving 
 his testimony. 
 
 In the other case of Pipe v. Steel, (6) the. question whether one defendant 
 who had suffered judgment by default was a competent witness for the 
 plaintiff, in an action upon a contract, was decided by the Court of Queen's 
 Bench. Lord Denman, C. J., in delivering the judgment of the court, said : 
 "The objection of his being, a party to the record, has been deliberately' 
 overruled in "Worrall v. Jones, a case of great authority, in which Lord' 
 
 being A party to the record which, renders him incompetent ; and the practice is, when 
 nothing appears tigainst one of the defendants, for the court to direct his immediate 
 acquittal, so that the other defendant may use him as a witness. People v. Bill, 10 John. 
 Rep. 95 ; Campbell v. The Commonwealth, 2 Virg. Cas. 314, S. P. on the authority of 
 People V. Bill, among other cases. See State v. Carr, 1 Coxe, 1 contra. But, to warrant 
 his acquittal, no evidence whatever should appear against him. Bowerhan's Case, 4 G. 
 H. Bee. 136, before Colden, Mayor ; Pennsylvania v. Leach, Addis. 353. 
 
 Where two were jointly indicted for uttering a forged note, and the trial of one was 
 postponed; held, that he could not for that cause be called as a witness for the other.- 
 Commonwealth v. Marsh, 10 Pick. 57. 
 
 Where, by mistake, the name of one of two criminals intended to be indicted by the 
 grand jury, was omitted in the body of the indictment, but his name was in the indorse- 
 ment of the title beneath, which was written "a true bill," and the jury was sworn to 
 try both ; held, that the one whose name was so omitted was not of course competent for 
 the other ; but no evidence coming out against him, he is competent. Van Orden's Case, 
 IC. H. Rec.62. 
 
 (1) Colley V. Smith, 4 N. C. 285. 
 
 (2) 4 Taunt. 752. 
 
 (3) 2 Moo. & Bob. 270. 
 
 (4) 8 Taunt. 139. 
 
 Note 23. — Kimball v. Lamson, 2 Verm. Rep. 144, recognizes Brown v. Brown, cited inr 
 the text. The case of Mant v. Manwaring; is placedmuch on the ground of non-consent- 
 by the co-defendant. As to this objection, it is entirely overruled by Worrall v. JoneS' 
 (7 Bing. 395), which is in every particular the very reverse of Mant v. Manwaring. And' 
 see several cases cited in the text, where the admission of the party seems to stand on 
 the ground of interest alone. 
 
 (5) 7 Bing. 395. 
 (6)i 2 Q. B. 733. 
 
40 Effect of Judgment hy Default. [ch.- rv. 
 
 C. J. Tindal gave the unanimous judgment of the Court of Common Pleas, 
 that a party to the record may be examined as a witness; provided he be 
 disinterested. In the case of Green v. Sutton, (1) Lord Abinger rejected a 
 perSon so situated, on the express ground that, having admitted himself 
 liable by suffering judgment by default, he would be directly ipterested in 
 throwing a part of that burden on another ; which was also the ground of 
 the decision \fi Brown v. Brown. (1.) And if the joint liability were an 
 established fa«t, at the time when the witness is called, this argument 
 would be conclusive ; but, on the contrary, it is the very fact in issue,_and 
 the witness's interest is that it may not be established, because, unless it is, 
 no judgment can be had against him in this action. He may, indeed, after 
 suffering judgment by default, have little ground to expect ultimately to 
 escape the consequences of a joint liability ; but his conduct even in that 
 respect might admit of explanation. Upon the whole, it appears that the 
 reason for excluding the witness fails, and that he ought to be received." 
 Secondly, of the admissibility of a co-defendant in an action on tort. 
 
 Action on tort. In the case of Ward v. Hay don, (2) it was ruled by Lord 
 Kenyon, C. J., at Nisi Prius, that a defendant in an action of trover, who 
 had suffered judgment by default, was a. competent witness for his co-de- 
 fendant, who had pleaded not guilty. His Lordship observed that, by 
 reason of the judgment by default, the case was at an end, with regard 
 to the witness ; that he was not liable to the costs of the issue tried 
 against the other defendant, and was not himself released, whatever might 
 be the event of that issue. The same point appears to have been ruled in 
 
 the same way in an action of trespass. (3) 
 *49 *But it may be remarked, that according to the ordinary practice, 
 
 there is but one assessment of damages in cases of this nature, and 
 the same jury that try the issue between the plaintiff and the defendants 
 who have pleaded, also assess the damages both against the defendant who 
 has suffered judgment by default, and the other defendants if they are 
 found guilty ; and it is obvious that a defendant who has suffered judgment 
 by default, has an immediate interest in reducing the amount of damages, 
 and consequently, could not, upon general principles, be called for this pur- 
 pose. Where a defendant, therefore, who had suffered judgment by defeult 
 m an action of trespass, was called as a witness for two co-defendants, who 
 had pleaded,(4) Best, C. J., was of opinion, that the witness was incompe- 
 
 (1) Supra, p. 47. 
 
 Under the decisions in this state a party to the action, founded on a joint contract, is not 
 at common law a competent witness, even where he interposes no defense, or has been 
 discharged from liability as an insolvent. Sohermerhorn v. Schermerhorn, supra ; and 
 Supervisors of Chenango v. Birdsall, 4 Wend. 453 ; Oakley v. Aspinwall, 2 Sand. R. 7. 
 In some of the states the English rule prevails. Eohrer v. Morningstar, supra; Kincaid 
 V. Purcel, supra. 
 
 (H) 3 Esp. N, P. C. 553 ; S. C, Peake's Add. Ca. 136. 
 
 (8) Anon, 3 Camp. 834, n. by Wood, B. See also by Le Blanc, J., 2 Camp. 383 n. 
 
 (4) Marsh v. Smith, 1 C. & P. 677. See also Webber 'v. Budd, Ex. Sum. Ass. 1826, cit. 
 Kosc. Ev. 119. 
 
 Note 34. — One of two defendants sued jointly for the same trespass, if he suffer a 
 default, cannot be a witness for his co-defendant. The reason is, that although one 
 defendant suffer a default, and the other plead and go to trial, the damages are to be 
 assessed against both defendants by the same jury that try the issue. Bohun v. Taylor, 
 6 Cowen's Rep. 313 ; Marsh v. Smith, before Best, C. J., 1 Corr. & Payne, 577, S. P. and 
 same reasons given ; Chase v. Lovering, 7 Foster, N. H. 295. Ward v. Hayden, before 
 Lord Kenyon, and Chapman v. Graves, before Le Blanc, J., cited in page 50, notes 1 and 
 3 of the text, seem tb be overruled, and for the soundest reasons. In Marsh v. Smith, 
 Best, C J., said : " If this man's evidence is to be admitted to give a complexion to the 
 -case, it may go to reduce the damages against him j and therefore I am of opinion he is 
 ■clearly interested and ought not to be received." Tlw cases contra seem to have been 
 very hastily decided. See also per Tilghman, C. J., 6 Biun. 819, and Bostwick t. Lewb. 
 
SEC. 1.] Eff'ect of Judgment by Default. 41 
 
 tent ; for if his evidence were admitted on behalf of the other defendants, 
 it might give such a complexion to the case as to operate in reduction of the 
 damages against himself. 
 
 Whatever may have been the doubts that have previously existed upon 
 this subject, relative to the admissibility of a defendant for a co-de- 
 *50 fendant *in such cases, they seem to be now removed by the recent 
 decision of the Court of Common Pleas, id the case of Thorpe v. 
 Barber,(l) where it was decided that a defendant in an action of tort, who 
 has suffered judgment by default, is not a competent witness. for his co-de- 
 fendant where the jury are summoned as well to try the issues against the 
 one, as to assess the damages against the other. 
 
 On the question of admissibility of a defendant as a witness for the 
 
 Elaintiff against co-defendants, it was held, in the case of Chapman v. 
 rraves,(2) by Le Blanc, J., in an action of trespass against three, that one 
 of the defendants who had suffered judgment by default, could not be admit- 
 ted a witness against the others, who had pleaded, and he distinguished the 
 case from Ward v. Haydon,(3) observing, that there the witness was called 
 to exculpate his co-defendant, but that here he was called to inculpate the 
 others. But the better opinion seems to be that laid down in the late case 
 of Hadrick v. Heslop,(4) where one of two defendants in an action for a 
 malicious prosecution had suffered judgment by default, and it was held 
 that he was a competent witness against the other. 
 
 In an action of ejectment, one of several defendants, in possession of part 
 of the premises, who suffers judgment by default as to such part, will be 
 competent to give evidence for a co-defendant who pleads. , In BuUer's Nisi 
 Prius, it^is said,(5) that if a material witness for the defendant in ejectment 
 be also made a defendant, the right way is for him to let judgment go by 
 default ; but if he plead, and by that means admit himself to be tenant in 
 possession, the court will not afterwards, upon motion, strike out his name. 
 "In such a case," adds Buller, J., "if he consent to let a verdict be given 
 against him for so much as he is proved to be in possession of, I see no reason 
 why he should not be a witness for another defendant. "(6) 
 
 A defendant, who has suffered judgment by default in an action of eject- 
 
 1 Day, 33. (Where one of several trespassers is not sued, he is a competent witness 
 against his co-trespasser without being released by plaintiff. Morris v. Daubigny, 16 
 Com. Law Rep. 402 ; Kennedy v. Phillipy, 18 Penn. State R. 118, 408 ; Patch v. Hoyt, 
 20 Conn. R. 334.) •. 
 
 * * In the present (the 9th) edition of the text the author has embodied the greater 
 part of this note. ^^^ 
 
 Note 25. — Where process was issued against three joint trespassers, two of whom 
 were taken and the other returned not found ; held, that the defendant not arrested was 
 a competent witness for the other two (Stockham v. Jones, 10 John. Kep. 21) ; for he, in 
 truth, was not to be deemed a party, as he would had the action been upon a joint con- 
 tract. Id ; Rose V. Oliver, 2 John. Rep. 365 ; Van Norden v. Striker, 9 Wend. 286. In 
 Stockham v. Jones, the cases cited in the text were commented upon and overruled. 
 And in Wakeley v. Hart (6 Binn. 316), it was held, that where all the joint wrongdoers 
 are arrested, but the plaintiff goes to issue with some and takes no steps to compel the 
 others to plead, the latter are admissible, the same as if they had never been named as 
 parties. But if the suit be upon contract, though the witness be misnamed — as George, 
 instead of Gabriel P. — he shall be excluded as a party. Van Norden v. Striker, 9 Wend. 
 286. So the lessor of the plaintiff Elijah, by mistake inserted Elisha, was excluded as a 
 party. Robinson v. Neal, 5 Monroe, 214, 215. In these two cases of misnomer, the wit- 
 ness said he supposed he was the person intended, which was held sufficient to exclude 
 him. Two defendants in trespass, though they sever in their defense, cannot demand 
 separate trials, so as to be witnesses for each other. Dougherty v. Dorsey, 4 Bibb, 207. 
 
 (1) 5 C. B. 675. 
 
 (2) Campb. 333, n. 
 (8) Supra, p. 48. 
 
 (4) 17 L. J. (N. S.) Q. B. 313 ; S. C, 13 Jur. 600. See also a case cited by V. WilliamB, 
 J., 5 C. B., 676. 
 
 (5) P. 285. 
 
 (6) B. N. P. 286, citing Dormer v. Fortescue, 9 Geo. II, Willes, 343, n. 
 Vol.! 6 
 
42 JEffect of a Separate Verdict [ch. iv. 
 
 ment against two defendants has been' considered a competent "witness for 
 the plaintiff, to prove the other defendant in possession. (1) In that case. 
 Lord Ellenborough, C. J., held, that a verdict for the plaintiff would not 
 prevent him from suing the witness for mesne profits ; and that the only 
 supposed interest imputable to the witness was the possibility that the 
 plaintiff would sue the other defendant alone, but that this remote aud 
 possible interest would not render the witness incompetent. 
 
 Secondly, of the effect of a nolle, prosequi. 
 *51 *It has been decided, in several cases, that if a nolle prosequi is 
 entered as to one of several defendants, such defendant will be a 
 competent witness for or against his co-defendant, and this both in criminal 
 and civil proceedings. (2) In a case where this point arose in an action 
 against two persons who had been partners, upon a bill of exchange 
 accepted during the partnership, Tindal, C. J., in delivering the judgment 
 of the Court of Common Pleas, said, that the only question in the case was, 
 whether^the defendant, who had pleaded, would be entitled to sue the wit- 
 ness, either at law or equity, for contribution ; that it was .clear, he might 
 have done so before the stat. 49 Geo. Ill, c. 121, § 8 (the then existing, 
 Bankrupt Act), but that since that statute, the solvent partner was entitled^ 
 and consequently obliged to prove under the commission, and that the 
 certificate would be a bar to any action for contribution; the bankrupt,, 
 therefore, being discharged from all liability, was a competent witness for 
 the defendant. (3) 
 
 In such cases, the effect of the vholle prosequi is entirely to put an end to 
 the proceedings in the action, as far as the particular defendant is con- 
 cerned, and it follows that, although he was originally one of the parties 
 to the suit, he cannot be cojjisidered as a party at the time of the trial. At 
 all events, upon the nolle prosequi being entered as to him, he ceases to 
 have any immediate interest in the action, and the question of interest in 
 the event could only arise in respect of a liability over to the other defend- 
 ant, for whom he is called as a witness. (4) 
 
 Where a plaintiff intends to enter a nolle prosequi against a defendant 
 for the purpose of making him a witness, he must make his application to a 
 judge at chambers; a judge at Nisi Prius cannot grant the application. (5) 
 
 'It may be here mentioned, that an unsealed issue roll with a nolle prosequi 
 entered thereon, not being a record of the court, is not the proper evidence 
 of a nolle prosequi, (G) 
 
 Thirdly, of the effect of a separate verdict. 
 
 Where no nolle prosequi is entered as to a defendant, his situation is 
 obviously different. In an action of assumpsit oh a joint contract against 
 two defendants, one of whom had pleaded non-assumpsit, and the- other 
 had pleaded bankruptcy, issue having been joined on both pleas, the coun- 
 sel for the defendants proposed to call the defendant who had pleaded 
 *52 *bankruptcy, as a witness, but Lord Keny<!m, C. J. refused to admit 
 him, although it was proposed to give releases from the defend- 
 ant who had so pleaded, to the bankrupt, and from the bankrupt to the 
 
 (1) Doe d. Harcop v. Green, 4 Esp. 188. 
 
 (2) Said by Park, J. in Emmett v. Butler, 7 Taunt. 607, to have been so ruled by Ls 
 Blanc, J. See, also, Moody v. King, 2 B. & C. 558 ; Melver v. Humble, 16 East, 171 ; 
 Affalo V. Fourdrinier, 6 Bing. 806 ; R. v. Shearman, Ga. temp. Hardw. 303 ; E. v. Ellis, 1 
 Macually Ev. 55 ; Ward v. Mann, 2 Atk. 229. 
 
 (3) AflalQ V. Fourdrinier, 6 Bing. 306. See as to the effect of the 49 Geo. Ill, c. 121, 8 8„ 
 in restoring competency. Moody v. King, 2 B. & C. 558 ; Ex parte Young, 2 Eose B. C. 40 ; 
 Wood V. Dodson, 2 M. & S. 195. The provisions of this statute are contained in sect. 52 
 of 6 Geo. IV, c. 16, the present Bankrupt Act. 
 
 (4> See by Lord Abinger, C. B., and by Alderson, B., in Hawbesworth v. Showier, 12 M. 
 & W. 45. 
 
 Spencer v. Harrison, 2 C. & Kir. 439. 
 Fagan v. Dawson^ 4 M. & (J, 711. 
 
 (6) 
 
SKC. I.] ^Efect of a Separate Verdia. 43 
 
 assignees ; as tHe witness stood as a defendant on. the record, and was liable 
 to the costs of the action, and that this, therefore, was an interest which 
 could not be released. (1) 
 
 In a subsequent case of the same description, before Lord Ellenborough, 
 C. J., the ceitificate of the bankrupt was put in, and it was proposed that a 
 verdict should be taken in his favor, and that he should then be called as a 
 witness for the other defendant, but th# judge refused to permit this course 
 to be taken, and the witness was rejected. (2) So in a later case,(3) in which 
 two out of five defendants in an action of assumpsit pleaded bankruptcy, 
 and the plaintiff had proved under their commission, thereby electing to 
 take the benefit thereof, it was held, by the Court of Common Pleas, that 
 these defendants, having substantiated the plea, were not entitled to a sepa- 
 rate verdict in their favor, in order that they might be called as witnesses 
 on behalf of the other defendants, who had pleaded the general issue.. It 
 was contended in this case, that the proposed witnesses were disinterested, 
 inasmuch as they were entirely discharged both from contribution and from 
 costs, by the then existing Bankrupt Act,(4) and that having proved their 
 plea, they were entitled to a verdict ; but the court held otherwise : Gibbs, 
 C. J., said he knew no rule of law which required a judge to stop in the 
 middle of a cause, to consider separately the case of certain of the defend- 
 ants, in order that they might be made witnesses for the other defendants. (5) 
 
 But in the more recent case of Bate v. Russell,(6) at Nisi Prius, where one 
 defendant had pleaded bankruptcy, and the other to the merits of the action, 
 and it was proposed that on proof of the bankrupt's certificate, a verdict 
 should be taken for him, in order that he might appear as a witness for his 
 co-defendants. Park J., permitted this course to be adopted, and the witness 
 was admitted. Upon the preceding cases of Raven v. Dunning, Currie v. 
 Child, and Emmett v. Butler, being cited as authoiities against the admissi- 
 bility of the witness, his Lordship observed, that they were no longer directly 
 in point, in consequence of the altered state of the bankrupt laws, with 
 reference to costs, but that he would give no opinion on the competency of 
 the witness, and would admit him, giving leave to move ; no motion, how- 
 ever, was made on this point. 
 
 The question as to the competency of the witness in Bate v. Russell, 
 *53 *after the verdict had been entered in his favor,, would appear to be 
 the same as that in Aflalo v. Fourdrinier ;(7) as the effect of a separate 
 verdict seems to be the same as that of a nolle prosequi, in putting an end 
 to the proceedings, so far as the bankrupt is concerned, and in depriving him 
 of all immediate interest in the result with regard to the other defendants. 
 It will be seen, presently, that one of several defendants has been frequently 
 made a competent witness for his co-defendant, by the effect of a separate 
 verdict in an action of tort, but the case of Bate v. Russell appears to be 
 the first, in which this course has been allowed to be taken in an action on 
 a contract. It would, however, appear to be difficult to assign any good 
 reason for not permitting the like practice to be adopted in actions of con- 
 tract, and it is manifest, that if it were not allowed it would be in the plaint- 
 iff 's power to deprive the defendant who had pleaded to the action, of the 
 benefit of the evidence of the bankrupt, by joining, issue on the plea of bank- 
 ruptcy, instead of entering a nolle prosequi, although there might be no 
 pretense for questioning the truth of the plea. It may be observed, how- 
 ever, that the question can rarely arise in actions of contracts, except in 
 
 (1) Raven v. Dunning, 3 Esp. 25 ; Rohrer v. Morningstar, 18 Ohio, 579. 
 (2V Currie v. CUld, 3 Campb. 283. . 
 
 (3) Emmett v. Butler, 7 Taunt. 599. 
 
 (4) 49 Geo. Ill, c. 131. 
 
 (5) 7 Taunt. 606. 
 
 (6) M. & M. 882. 
 
 (7) 6 Ring. 306; Bypra.p. 51. 
 
44 Effect of a Separate Verdict. [ch. rv. 
 
 cases where one of several defendants pleads a plea of personal discharge, 
 such as bankruptcy and certificate, or insolvency and discharge. 
 
 The next subject for consideration comprises the cases in which a defend- 
 ant in an action of tort may be rendered a competent witness for his 
 co-defendants, by the efiect of a separate verdict at the trial. 
 
 The general principle, which governs the decisions on this subject, is laid 
 down by Gilbert, C. B., as follows : "If any person be arbitrarily made a 
 defendant, to prevent his testimony in the cause, the plaintiff shall not pre- 
 vail by that artifice, but the defendant, against whom nothing is proved, 
 shall notwithstanding be sworn ; for here the defendant does not swear in 
 his own justification, but in justification of another with whom he was 
 unnecessarily joined; and if this were not allowed, the plaintiff might turn 
 all the several witnesses into defendants, and thus might be able to prove 
 what he pleased, without contest.'l- (1) 
 
 This rule must be understood to apply to those cases only where there is 
 no kind of evidence against such defendant ; for if there be ^ny evidence 
 against him, though not enough in the judge's opinion to convict him, he 
 cannot be called as a witness, but his guilt or innocence must await the 
 event of the verdict, the jury being; judges of the fact. 
 
 In order to render a party who is unnecessarily sued, competent to give 
 evidence, the jury are directed to find a separate verdict in his favor, and, 
 the cause being then at an end with respect to him, he may be called as a 
 witness on behalf of a co-defendant. Some contrariety of practice hg,s pre- 
 vailed with respect to the particular stage of the cause at which the 
 *54 *separate verdict may be taken in favor of the party or parties 
 unnecessarily sued. In some cases the rule laid down has been that 
 one of several defendants is not entitled to a verdict separately from the rest 
 immediately at the close of the plaintiff's case, but must wait until the 
 whole of the case of the other defendants, exclusive of the evidence, which 
 he may have to give, is entirely finished. (2) In Child v. Chamberlain, (3) 
 however, Parke, B., said, it had been settled, by the unanimous opinion of 
 all the judges, that a defendant against whom the plaintiff has adduced no 
 evidence is entitled to a separate verdict immediately upon the close 
 of the plaintiff 's case. But in the later case of Sewell v. Champion,(4) the 
 
 (1) Gilb. Ev. 117. See, also, B. N. P, S85. 
 
 (3) Wright V. Paulin, B. & M. 138 ; Huxley v. Berg, 1 Stark R. 98 ; Wvnne v. Ander- 
 son, 3 C. & P. 596. 
 
 (3) 6 C. & P. 315 ; S. C, 1 Mo. & Rob. 318. And see by Bosanquet, J., Russell v. Ryder, 
 6 C. & P. 416. 
 
 (4) 6 A. & E. 407. 
 
 Note 26. — The cases of Warn v. Bourne and Wright v. Paulin, cited in the text, on a 
 former page, do certainly bear out the position that the testimony on both sides must be 
 cloSed before the defendant can be acquitted and received to testify, and with these will 
 be seen to agree a still later English case, infra, though it will also be perceived, infra, 
 that the rule is not without its exceptions. And in Bonser v. Curtiss, Sitt. after Mich. T. 
 1830, cited in a note to Winne v. Anderson, 3 Carr & Payne, 596), Abbott, C. J., observed 
 that it is a matter of discretion with the j udge, whether tlie j ury shall, in the middle of 
 the cause, acquit a particular defendant, against whom there is no case made out, to 
 make him a witness for the others. And again, in Carpenter v. Jones (1 Mood & Malk. 
 198, note, Sitt. after T. T. 1838), the same learned judge (now Lord Tenterden), again 
 distinctly asserted this doctrine of discretion ; and acted upon it, by directing an acquittal, 
 and receiving the defendant as a witness, at the close of the defendant's opening speech. 
 In Massachusetts, it is a matter of discretion, in trespass against several, to permit one to 
 be tried before the other, in order that if acquitted, he may be a witness. But if they be 
 tried together, and one acquitted and the other convicted, a new trial will not be granted 
 in order to let in the testimony of the one acquitted. Sawyer v. Merrill, 10 Piclc. 16. In 
 England, it was lately held, where there was a joint action of trespass against six defend- 
 ants, and tlie plaintiff proved a joint trespass committed by all, and then went on to 
 prove another act of trespass by three of them, expecting to connect the other three with 
 this also, but failed in so doing, that the other tliree were entitled to ba acquitted before 
 the defense was opened, as the plaintiff must be taken to have elected to waive the joint 
 
SEC. 1.J Effect of a Separate Verdict. 45 
 
 *55 *Court of King's Bench held, that this was discretionary with the 
 judge. Lord Denman,C. J., in delivering the judgment of the court 
 in that case, said : " The application to a judge, in the course of a cause, 
 to direct a verdict for one or more of several defendants in trespass, is 
 strictly to his discretion ; and that discretion is to be regulated, not merely 
 by the fact that at the close of the plaintiff's case no evidence appears to 
 affect them, but by the probabilities whether any such will arise before the 
 whole evidence in the cause closes. There is so palpable a failure of justice, 
 where the evidence for the defense discloses a case against a defendant pre- 
 maturely acquitted, that such acquittal ought never to take place, but where 
 there is the strongest reason to believe that such a consequence cannot fol- 
 low." And in a still more recent case,(l) his Lordship remarked: "The 
 more usual practice certainly is to let the whole case go on. Where one 
 party is acquitted, he might be called for the defense, and prove that he, 
 and not any of the other defendants, was the real wrongdoer. I know of no 
 meeting of the judges at which any such resolution has been come to as 
 that spoken of in Child v. Chamberlain." 
 
 The matter then rests entirely in the discretion of the judge ; and in a 
 case, where it clearly appeared at the close of the plaintiff's case, that a 
 party had been made defendant with no other object than to exclude his 
 testimony, Wilde, C. J., after animadverting upon such a practice, directed 
 a verdict to be entered at once for that defendant. (2) 
 
 trespass, and to have gone on as against those three for the second act of trespass only. 
 The trespass proved against the six was that they all assisted in taking the goods ; and 
 that the other three only were concerned in the sale, which was the other trespass ; but 
 in the ordinary case, where several are sought to he fixed with a single act of trespass, 
 and there is a failure to fix this single trespass against all, the whole evidence on both 
 sides, for the defense as well as for the plaintiff, must he gone through with, before an 
 acquittal will be ordered, with a view to let in those defendants who are not touched by 
 the evidence. Wynne v. Anderson, 3 Carr. and Payne, 596. The distinction is a very 
 nice one. And see Dougherty v. Dorsey, 4 Bibb, 207 ; and see Wakeley v. Hart, 6 Binn. 
 316, and ante, note 35. 
 
 In an action for a malicious prosecution against M., W. and C, the plaintiff proved that 
 the defendant M. procured and put into the hands of a constable, a^.warrant against him. 
 for larceny, upon which the plaintiff was arrested, and taken before a magistrate ; and on 
 the examination of M. and W., he was bound over to the Mayor's court, to answer to the 
 charge of larceny. M. was recognized to prosecute, and W. to testify. He also proved 
 that the grand jury returned the indictment against him ignoramus. The plaintiff 
 having rested his case on this proof, the defendant's counsel moved that the jury should 
 be directed immediately to find a verdict in favor of W. and C, against whom there was 
 no evidence, in order that they might be examined as witnesses for the other defendant. 
 The court directed the jury to find these two defendants not guilty, which being done, 
 they were sworn as witnesses. Wilmarth v. Mountford et al., 4 Wash C. C. Kep. 79. 
 And in Lanning's Lessee v. Case et al., it was ruled, that if there be no evidence what- 
 ever, to prove possession in one of the defendants in ejectment, the jury may find a 
 verdict in his favor at the bar, so as to authorize the other defendants to examine him as 
 a witness. 4 Wash C. C. Rep. 109. So, in an action against two defendants for an 
 assault and battery, both defendants joined in pleading the general issue, and no evi- 
 dence having been given against one, it was moved that he be discharged and admitted 
 as a witness for the other defendant. The plaintiff objected that this could not be done, 
 because they had joined in their plea of not guilty. Held, that this made no difference, 
 and that he ought to be discharged. Van Deusen v. Slyck, 15 John. H. 338, and Scher- 
 merhorn v. Schermerhorn, 1 Wend. 119. There being some .evidence against one of 
 several wrongdoers, who are sued jointly, he cannot be discharged on the trial for the 
 purpose of being improved as a witness. Brown v. Howard, 14 John R. 119. (If there 
 be little or no evidence against him, he is entitled to be discharged for the purpose of 
 making him a witness. Labar v. Koplin, 4 Comst. 546) ; and the same rule is followed 
 in criminal prosecutions. Fitzgerald v. The State, 14 Miss. 418. Thus, where two per- 
 sons are jointly indicted, but tried separately, one of them is a. good witness for the 
 other (fjozier v. The Commonwealth, 10 Gratt. Va. 708) ; and in an action of trespass, 
 the testimony for the plaintiff having been closed, the jury will be permitted, to retire 
 and determine on the guilt or innocence of one of the defendants, so that if innocent, he 
 may be sworn as a witness. Bell v. Morrison, 37 Miss. (5 Cush.) 68. 
 
 (1) White V. Hill, 6 Q. B. 487. 
 
 (2) Neilan v. Hanny, 2 C. & Kir. 710. 
 
46 Party not compellable to give Eoidence. [ch. rv. 
 
 In the ease already referred to,(l) in -which it was ruled that a ; 
 prosequi could not he entered at Nisi Prius as to one of the defendants, the 
 counsel for the plaintiflf proposed to oifer no evidence against that 
 *54 defendant, *and to have a verdict taken in his favor ; hut the counsel 
 for the defendants, who stated that he was instructed by one attor- 
 ney to appear for all three defendants, objecting to such a course, the judge 
 refused the application. 
 
 Where a material witness for the plaintiff is by mistake made a defendant, 
 the court will, on motion, suffer his name to be struck out of the record, 
 even after issue joined, and then he may be examined. (2) 
 
 In an action of ejectment, if a material witness for the defense has been 
 made a co-defendant through mistake, it has been said that, if he has 
 pleaded, the court will not, upon motion, strike out his name. (3) It 
 has been shown that he will be a competent witness if he suffer judgment 
 by default. (4) 
 
 Of the rule that a party is not [compellable to give evidence 'Against 
 himself. 
 
 The general rule, respecting the incompetency of parties as witnesses in 
 
 civil suits, has been before laid down ; namely, that a party individually 
 
 named in the record is in general not competent to give evidence for himself 
 
 cr for a joint suitor against the adverse party. (5) By the general 
 
 *57 *rule, also, a party to the suit is not compellable to give evidence 
 
 against himself 
 
 A party to the suit who is excluded by reason of interest from giving 
 evidence against the adverse party, is not compellable to give evidence for 
 the adverse party against himself. Inconvenience froln the exclusion of 
 evidence of this description is not extensively felt in practice ; as, notwith- 
 standing the ordinary tests to which the testimony of witnesses is subjected, 
 
 (1) Spencer v. Harrison, 3 C. & Kir. 429 ; Swpra, p. 51. 
 
 (2) 1 Sid. 441 ; B. N. P. 285. It would seem such a course could not be adopted at Nisi 
 Prius. See Spencer v. Harrison, ut swpra. 
 
 (3) B. N. P. 285, cUing Dormer v. Fortesoue, Willes, 343, n. 
 
 (4) Id. and see svifia, p. 49. 
 
 (5) Supra, p. 28. 
 
 ifoTB 27 — At the hearing of an appeal from an order for the removal of a pauper 
 from the town of P. to the town of N., the appellants called one of the overseers of 
 the poor of P. as a witness; to which it was objected, that he was a, party, and not 
 compellable to testify ; and it was so held by the Supreme Court ; and on certiorari, his 
 testimony was struck out of the case, he having been compelled to testify by the court of 
 sessions who heard the appeal. Plattekill v. New Paltz, 15 John. Rep. 309. 
 
 A party can in no case be compelled to testify against himself Worrall v. Jones, 7 
 Bing. 395. But not being interested in favor of the plaintiif, the defendant (being willing 
 to testify) was received as a witness against his co-defendants, even in an action arising 
 ex contractu,. Id. And where one party calls on the other as a witness who is sworn 
 without objection, this cannot afterwards be made an objection. Miller v. Starks, 18 John. 
 Rep. 517; Hopkins v. Banks, 7 Cowen's Rep. B50, 653. 
 
 Neither the party on record nor the partyin interest can be compelled to testify ; as 
 where in an action on a check, it was admitted that the plaintiff had no interest in the 
 check, but sued for the benefit of Mrs. R., with her consent ; the defendant set up usury 
 as a defense, and offered to call R. to prove the usury ; but held, that she could not be 
 compelled to give evidence, unless by hei assent. Mauran v. Lamb, 7 Cowen's Rep. 174. 
 Nor can a lessor of the plaintiff in ejectment be compelled to testify for the defendant, 
 though no interest is shown in the witness. Robinson v. Neal, 5 Monroe, 213, 314, 315. 
 On the trial of an action of ejectment, the defendant called one of the lessors as a witness, 
 and offered to prove by him on his voir dire that he had no interest in the land, and dis- 
 claimed all connection in the suit. But he was rejected by the court. If his name had 
 been used without his consent, it might be struck out on application for that purpose. 
 Jackson ex dem. Goodrich v. Ogden, 4 John. Rep. 140. See ante, note 19. 
 
 Note 28 — Where the plaintiff was sworn as a witness, at the trial of a cause, at the 
 particular request of the defendant, it was held that he could not afterwards object to his 
 testimony. Miller v. Starks, 13 John. Rep. 517. And see Hopkins v. Banks, 7 Cowen's 
 Rep. 650, 653 ; and Legg v. McNeill, 3 Texas, 428. 
 
SEC. II.] Competency of Parties in Criminal Proseeuiions. 47 
 
 parties would, perhaps,Tarely venture to avail themselves of the testimony 
 of their adversaries. This rule seems to have originated from some appre- 
 hension of vexation or inconvenience -which might ensue, if a person were 
 bound to prejudice or accuse himself 
 
 On questions of settlement, it was formerly determined, (1.) that the rated 
 inhabitants of either parish, being in reality parties to the proceedings, 
 could not be compelled to give evidence against their own parish. This 
 decision was before the statute of 54 Geo. Ill, c. 170 which rendered such 
 parties competent in certain cases. The incompetency of rated inhabitants 
 was, as has been seen, (2) entirely removed by the 3 & 4 Vict. c. 26 ;(3) but 
 it seems that such parties, although thereby rendered competent, are not 
 compellable to give evidence ; and, therefore, it has been held, in an indict- 
 ment against the inhabitants of a township for non-repair of a bridge, that 
 declarations of ratable inhabitants, whether actually rated or not, might be 
 given in evidence for the crown. (4) 
 
 In an action of ejectment, on the several demises of two lessors, one of 
 them is not compellable to give evidence for the defendant, though no title 
 has been proved under his demise. (5) The lessors of the plaintiff are sub- 
 stantially the parties on the record ; all are jointly liable ; that lessor, upon 
 whose title the recovery proceeds, is generally the trustee of the other ; and 
 there are the same reasons for protecting them from being examined, which 
 have produced the general rule of law that the parties on the record cannot 
 be compelled to give evidence against themselves, and are not permitted to 
 swear in their own favor, (6) 
 
 In the case of several plaintiffs or defendants, the privilege is personal to 
 each plaintiff and defendant. Where one of several co-plaintiffs comes 
 forward voluntarily to disprove the defendant's liability to the demand 
 made upon him, it has been held, that he may be called on the part of the 
 defendant, and admitted to give evidence, though he defeats the claim 
 *t% of *those who jointly sue with him: (7) for, if the plaintiff were to 
 make a declai-ation against his interest out of court, evidence of that 
 declaration would be admissible ; and how is the proof less credible, said 
 Mansfield, C. J., if, with the consent of the defendant, who waives all objec- 
 tion to his testimony, he declares the same thing upon oath at the time of 
 trial ? 
 
 SECTION n. 
 
 Of the Rule of Incompetency Considered with reference to Parties Prose- 
 cuting for Offenses^ and to Defendants in Criminal Proceedings. 
 
 In treating of the subject of the 'present section, we shall, in the first 
 place, consider the competency of a prosecutor, or person aggrieved by an 
 offense, who is generally, though not necessarily nor always, the prosecutor : 
 and secondly, the competency of defendants in criminal proceedings, as to 
 whom a nolle prosequi has been entered, or against whom a separate verdict 
 has been taken. 
 
 The general rule is that a prosecutor, or party aggrieved by an offense, is 
 a competent witness on the part of the prosecution. This was so before 
 
 (n R. V. Woburn (Inliab.), 10 East, 403. 
 
 (2) Bupra, p. 41, u. 1. 
 
 (3) See R. v. Viokery, 12 Jut. 581, Q. B. 
 
 (4) R. V. Adderbary, East (Inliabs.), 5 Q. B. 187. 
 
 (5) Fenn d. Pewtress v. Granger, 8 Campb. 177. 
 
 (6) By Lord Ellenborough, C. J., 3 Campb. 178. 
 
 (7) Norden and another v. Williamson, 1 Taunt. 378, by Mansfield, C. J., and Chambers, 
 J., who were the only judges present. And see Worrall v. Jones, 7 Bing. 895 ; supra, p. 
 48. 
 
48 Competency of Parties in Criminal Proseeutions. [ch. it. 
 
 Lord Denman's Act. An indictment, though commonly set in motion and 
 carried on at the instance of the party aggrieved, is in fact a proceeding 
 instituted in the name and on behalf of the Crown ; and its object is iiot 
 the reparation of individual injury, but the satisfaction of public justice. 
 The single question, upon which the jury pronounce their verdict, is the 
 innocence or guilt of the prisoner. It may be observed, that the prosecutor 
 or party aggrieved has, in general, no direct and certain interest in the 
 event of the prosecution, by reason of liability to costs ;(l) in which respect 
 he differs from parties in a civil suit, who are commonly liable to costs, and 
 against whom this liability is the most frequent objection. There are some 
 particular cases, in which a prosecutor may be considered as having a direct 
 pecuniary interest in the event of the prosecution ; these will be presently 
 noticed. 
 
 It was formerly supposed that a prosecutor was incompetent, in certain 
 cases, by reason of an indirect interest which might arise from the use of 
 the record of conviction in his favor in a subsequent civil suit. (2) But it 
 
 was afterwards decided, and became an established rule, that a verdict 
 *59 in *a criminal prosecution could not be used as evidence in a civil 
 
 suit, either at law or in equity, on behalf of the party who had him- 
 self been called as a witness on behalf of the prosecution: (3) so that the 
 supposed indirect benefit or interest would not any longer exist. 
 
 (1) The general power of awarding costs in criminal trials, depends iipon the stat. 7 
 Geo. IV, c. 64, §§ 22, 23, which gives a discretionary power to the court, but only to 
 award the expenses of the proceedings. 
 
 (2) R. V. Whiting, 1 Salt. 283, prosecution for fraud. This case was overruled in E. v. 
 Broughton, 2 Stra. 1229. See also E. v. Ellis, 2 Stra. 1104 ; B. v. Nunez, 2 Stra. 1042, 
 prosecution for perjury. 
 
 (3) Bartlett v. Pickersgill, 4 East, 577, n. (c) ; E. v. Boston, 4 East, 572, 581 ; E. v. Yates, 
 C. & Marsh. 132, 187 ; Smith v. Eummens, 1 Campb. 9 ; Hathaway v. Barrow, 1 Camgb. 
 151 ; Burdon v. Browning, 1 Taunt. 520. 
 
 Note 29. — Per Bayley, J., in Eex v. Williams, post, note 30. And see Baker v. The 
 Commonwealth, 2 Virg. Gas. 353. A person from whom goods have been stolen is a 
 competent witness, in a prosecution against the offender, as to all pertinent facts within 
 his knowledge ; notwithstanding, he will be entitled, on conviction, to a restoration of 
 the goods, if they can be found, or to a satisfaction out of the future earnings of the con- 
 vict, in case the goods be not restored; and also to a recompense out of the county trea- 
 sury, for his labor and expenses in the prosecution. And where a party, from whom 
 goods were stolen, was bylaw entitled to recover treble the value, he was always received 
 as a competent witness against the offender. Commonwealth v. Moulton, 9 Mass. Eep. 
 30. The party injured was admitted as a witness in a state prosecution, in Connecticut, 
 on the ground that no j udgment for treble value can in such form be rendered from him. 
 Salisbury v. The State of Connecticut, 6 Conn. Eep. 101. And the inkeeper, from whose 
 inn the goods of another were stolen, was a fortiori, held admissible. Id. 
 
 Note 30. — Upon an indictment for takinajfcxcessive usury, the borrower is a competent 
 witness for the prosecution, if he be not eWtled to a part of the penalty as informer, 
 notwithstanding he have never repaid the money borrowed. Commonwealth v. Frost, 5 
 Mass. Eep. 58. And see Pettingall v. Brown, 1 Caines' Eep. 168. On the trial of an 
 indictment for a forcible entry and detainer, the prosecutor's wife was received in Penn- 
 sylvania, as competent for the state to prove the force. Respublica v. Sliriver, 1 Dall. 68. 
 Qtiere ; for in England upon the trial of a like indictment, the tenant, whose land is 
 alleged to have been entered upon or holden, is not competent for the prosecution ; for 
 the land is to be restored to him on conviction. Rex v. Beavan, Ey. & Mood. N. P. Rep. 
 242 ; The King v. Williams, 9 Barnw. & Cress. 549. See the Stat. 21 Jac. I, c. 15, and S. 
 H. 6, c. 9, corresponding to many American statutes. Bayley, J., who delivered the 
 opinion of the court, in the last case, went much into questions of a like character. He 
 seems to concede that it would be otherwise of an indictment for a forcible entry or 
 detainer at common law. He says that rewards given by the legislature for prosecuting, 
 are founded on public policy, to stir up great vigilance. To allow these to disqualify, 
 would defeat the very end of them, the apprehension of offenders. As to private rewards, 
 nothing that private individuals can offer shall disqualify a public witness. The clause 
 of restitution in the 21 H. S., c. 11, is, that the subject of a robbery shall be restored on 
 conviction by reason of evidence given by the party robbed, &c., thus implying that he is 
 to be sworn notwithstanding. He considers several cases where informers, entitled to a 
 
SEC. n.] Competency of Prosecutor. 49 
 
 An exception to the general rule prevailed for a very long time in prose- 
 cutions for forgery, in which cases it was the settled doctrine, that the 
 person aggrieved, being prosecutor, was incompetent to prove the instru- 
 ment forged, although it was clear that he could riot use the conviction as 
 evidence in his own favor, in a civil suit upon the forgfed instrumfent. This 
 was often productive of great inconvenience in excluding thfe most satis- 
 factory evidence that could be given, and the exception was certainly 
 *60 *an anomaly in the law of evidence.(l.) But the law in this particu- 
 lar was altered by the statute 9 Geo. IV, c.-32, § 2, the effect of 
 which is, to place the law of evidence in prosecutions of forgery upon the 
 same footing as in other criminal proceedings ; and now the party aggrieved 
 by an alleged forgery, whether prosecutor' or riot, is in all cases a coriipetent 
 witness in support of the prosecution. (2) 
 
 Prosecutor when formerly incompetent from, interest. There are cases, in 
 which a prosecutor or party aggrieved is entitled, by statute, to some partic- 
 ular benefit or advantage from the conviction of the party accused. In these 
 cases, if the benefit or advantage would immediately result to the prosecutor 
 upon conviction, he Ivas clearly interested in the event, and was formerly held 
 to be incompetent, unless his competency were restored by the statute in ques- 
 tion, or by some other statute, or on some principle of public policy. (3) Thus, 
 upon an indictment for a forcible entry, upon the statutes 8 Hen. VI, c. 9, or 21 
 Jac. I, c. 25, where the effect of a conviction is to entitle the tenant to an imme- 
 dikte award of restitution of the lands; such tenant was considered incompe- 
 tent by reason of his immediate interest in the event of the prosecution. (4) 
 And in cases of summary convictions, where a penalty is imposed by statute, 
 and the whole or part is given to the informer, who becomes entitled to receive 
 it immediately upon the conviction, the informer was considered an incompe- 
 tent witness, unless he was made competent by statute. (5) 
 
 An exception was made in prosecutions for robbery or theft, where the 
 party injured was competent, although entitled to restitutiori of his prop- 
 erty immediately upon conviction of the offender. (6) 
 
 reward, have been remitted, as exceptions arising out of the secret nature of the trans- 
 action, or an implication from the statute that they should, notwithstanding, be sworn. 
 
 An informer under the act to punish vice and immorality, who is entitled to a share of 
 the penalty, was held incompetent on a summary proceeding, though he had executed 
 an assignment of all his rights to' the penalty to a third person. Such right is not 
 assignable. Commonwealth v. Hargesheimer, 1 Ashmead's Rep. 415. 
 
 (1) See by Lord EUeuborough, C. J., 4 Bast, 582 ; by Abbott, C. J., 4 B. & A., 310. This 
 doctrine was confined to criminal prosecutions, and did not apply where' the question of 
 forgery arose in a civU suit. Hunter v. King, 4 B. & A. 209. 
 
 (3) Note 31. — The old English doctrine has been adopted by some of the American 
 courts (State v. Brunson, 1 Root, 307 ; Same v. Blodget, Id. 534 ; Swift's Ev. 70 ; but see 
 Day's note 1, 3 IC. R. 96; State v..A. W., 1 Tyl. 360; The State v. Hamilton, 3 Hayw. 
 288) ; doubted by others (Coe's Case'," 1 C. H. Rec. 141) ; but a majority have gone the other 
 ■way. Fubber v. Hilliard, 3 N. H. Rep. 481 ; Pennsylvania v. Farrel, Addis. 346 ; Common- 
 wealth V. Snell, 3^Mass. Rep. 83 ; Same v. Wait, 5 Id. 361 ; State v. Foster, 3 M'Cord, 443 ; 
 Respublica v. Keating, 1 Dall. 110 ; Same v. Ross, 3 Id. 339 ; Same v. Wright, 1 Yeates, 
 401 ; Same V. Ross, 3 id. 1. An apparent first indorser was received to prove his name a 
 forgery. Territory v. Barran, 1 Mart. Lou. Rep. 208. So the alleged drawer of a check 
 (People V. Howell, 4 John. Rep. 296), and the maker of a note. People v. Dean, 6 Cow- 
 en's Rep. 37. And see United States v. Johns, 4 Dall. 413. But the instrument must be 
 produced to the party, before he shall be allowed to swear as to its genuineness (Com- 
 monwealth V. Hutchinson, 1 Mass. Rep. 7 ; Same v. Snell, 3 Id. 83), unless it has been 
 secreted to protect the offender. Commonwealth v. Snell, svjira. 
 
 (3) See the judgment of the Court of K. B. in R. v. Williams, 9 B. & C. 549, 555. 
 
 (4) R. v. Williams, 9 B. & C. 549 ; R. v. Beavan, Ry. & Mo. 243. 
 
 (.5) R. v. Tilley, 1 Stra. 316 ; R. v. Stone, 3 Ld. Raym. 1545 ; R. v. Piercy, Andr. 18 ; R. 
 V. Blaney, Andr. 340. 
 
 (6) See 3 Bing. 300, 301 ; by Park, J., 9 B. & C. 550, and by Bayley, J., Id. 557. As to 
 the evidence of persons entitled to a penalty under the excise laws, see 7 & 8 Geo. IV, c. 
 53, 8 75 ; under the custom laws, see 8 and 9 Vict. c. 87, § 183. ■ 
 
 VOL.L V 
 
50 Gomp^eney Qf Prosecnaor. < [ch. it. 
 
 *61 *0n an indictment on the statute 9 Ann, c. 14, § 5, for fraudulent gam- 
 ing, the loser of the money was considered competent to prove the 
 _loss ;(1) for the pecuniary penalty imposed by the statute is not immedi- 
 -ately recoverable upon a conviction, but is given by the express words of 
 the statute to such parties as shall sue for the same by a separate action ; 
 and the oonvictiqn would, not be admissible evidence in an action by the 
 j)arty to 'recover the penalty. (2) So in a prosecution for seducing artificers, 
 under the, statute; 23 Geo. 11, c. 13, § 1, which subjects oflEenders to a pen- 
 alty ofSOOi., the progecutoT was held' to be a competent witness ;(3) for the 
 rStatute.rimplied'ly renders a separate action necessary for the purpose of 
 ■obtaining the; penalty,, and in that action he could not use the conviction in 
 evidence. .Cases of this nature were not, therefore, to be viewed as excep- 
 tions to the rule respecting interestgd witnesses ; for in none of them 
 *62 *had the witness any direct and certain interest in the event of a 
 ■ J)roSei3tit'ion. 
 
 Informer competent where, fine or imprisonment discretionary. Even 
 in cases, where by "statute a pecuniary penalty may be immediately recov- 
 jerable Uipou; the event of , a criminal prosecution, and where the prosecu- 
 tor 01" informer is entitled to part of the amount, it had been held, before 
 Lord Denman's Act, that he was not an incompetent witness, if it were in 
 the discretion of the court to punish the ofiender either by fine or imprison- 
 ment. (4) iThis was on the ground that a witness would not be incompetent 
 from interest lunlgss the interest were certain.: and in cases where a fine is 
 made, to depend u-pon the discretion of the court,, it is not certain, until the 
 
 NolE 32.— ^That pereons entitled to a Teward on cdnviction, are competent witnesses 
 for lihe ptoaeCtttion, See Macnally's Ev. 61, 63, and the Casestliere cited; United States v. 
 l^ilson, 1 Balftwin's Bep. 90, S. P. An attorney who,iby arrangement with the trustees 
 of a corporation, was.to.have 10 jper cent., on all, fines collected -in their, .tehalf, i»as held 
 incompetent ai^.aivitness. for tjie colnmonwealth, in a pjrosecution for a fine belonging to 
 the cbrpppation. Commonwealth v. .Moore, 5 J. J.;Marsh, 6S5, i556. 
 
 N6te 38.-4-The party injured is a coinpetent witness tor the stite, in a criminal pros- 
 ecution. The cases are geherallly vmiform tb this'effeot, on the ground which prevails in 
 
 .civil causes, that the record cannot be used as evidence either for or against the witness. 
 State V. Hasset, l.Tayl. 53 ; Commonwealth v. Oliver, 3 Bibb, 474. But they are conflict- 
 ing afl to his competency in thpse cases where he may, by special provision, derive actual 
 
 •ibenefltfrom a o<|iiviction. 
 
 The rule that he is competent, was applied to a suit qui tatn, io'c usury. Banner v. 
 Gregg, 1 Sarringt. 513. And to a i)rosecUtion for playing with false dice. The King v. 
 Chapman, stateoTby McKean, C. J., in KespUblica v., Keating, 1 Dall. 111. The general 
 f ule was held not rto be altered even by, a Statute making the prosecutoir liable for costs. 
 Commonwealth v. Shrivel-, Whart. Dig. 381, pi. 734, (2d ed.) 'Qw*e. Yid. Common- 
 wealth v. 'Gore, 3 t)ana, 475. Wljere a statute made him liable only in the event of a 
 prosecution appealing to be 'frivolous or malicious, he was received as but contingently 
 liable. The State v. Blennerhassett, Walker's Rep. 7, and 15, 16. The prosecutor in 
 forcible entry under the statute, is not competent for 'the state, for he is enfltled to resti- 
 
 .tution. Sliate v. Fellows, 2 Hayw. 340.; AnU, note 30, p. 59, S. P. The rule, that the 
 injured .party is competent, , Ac, was applied to'tllie person who owned, and from whom a 
 bank bill was stolen, tlipugh a conviction wonld entitle him to a restitution of the prop- 
 erty. State V. Cassados,.! tfott & McCord, 91, 99. "But this was denied of the party 
 swindled, against the alleged swindler; for a Statute gave the former double Value, on 
 Gonviction. State v. Vaughau, IBay, 283, 283. So of an iufortner, 'Who is entitled to a 
 share of the penalty. City Council V. Haywood, 2 Nott, & SldCord, 808 ; Van Evour,v. 
 The State, ^d. 309, note a. But see State v. Bennett, 1, Root, '249. 
 
 On trial of Sfft, ipttiqtme'nt for perjury committed , by A. on trial of an action against B. 
 jind others, B. is Hot, rendered incompetent as a vf ithess for the prosecution, merely on the 
 ground ihat he has hot paid the debt and costs, ahd has filed a'bill iniquity. But seiribU, 
 that if B. espeot A. will be a witness against him in a siiliilar action, coming on for trial 
 soon after flie indictment^ that is such an iihnjecliate interest in B, as *ill d&qualify Mm 
 from being ja wiljness. Rex j-v.-Hulme, 7 Cair. & Payne, 8. 
 
 (1) K. V. Luckup, Willes, 425, n. 
 
 (2) See -Per OV. 9 B. & C.5?7,658. 
 
 (3) R: V, iTohnsph, 'Willes, 425, and see 9 B. &'C. 557, 558. 
 
 (4) B. V. Cole, 1 Ssp. l'B9, overriiling R, v. Bkckman, 1 Esp. 96. 
 
sfic. II. J Defendant in Jhroseoutifin. 61 
 
 judge pronounces his sentence, whethter the inforimer Tvill deriv^eany henefit 
 from the event of the prosecution. 
 
 From this review of the law, it appears that the i|)roseoutor in criminal 
 cases was considered incompetent onlj in those instances ^here the teSult 
 of a conviction would lead to aij. immediate and necessary benefit to hiia- 
 self ; as in the case of an indictment for a forcible 'entry where he would 
 be entitled to a restitution of the land, or in the case of an information laid 
 by a common informer, where he would be entitled to the whole or a portion 
 of the penalty. 
 
 In these last mentioned cases, namely, of indictments Tot forcible eriti-y 
 and information by common informers, the objection to the competency of 
 the witness Seems now no longer maintainable. This would'appear'to'be so 
 updh a careful consideratibn of Lord Denman's 'Aet;(l) 
 
 _ The rule df incgmpetency, in the ciases ^-eferted to, was foupded updn the 
 direct interest of tne prosecutor or informer in procuring, a conviction. 
 But this statute has abolished the incompetency which was founded upon 
 interest, subject to certain exceptions, within hohe 6f which do the cases 
 under consideration appear to range themselves. 
 
 In the case of the informer, for instance, it cannot justly be said that he 
 is "a party'to the proceeding individually named in theteccird."(2) He iS 
 certainly individually named in the conviction, as the party upon whose 
 information the defendant has been brought before the "magistrate, 
 *63 which *con"viction is the record of the proceedings befdre him. But it 
 may be questioned whether he can be said to be a party to the prdceeding 
 any more than any prosecutor is in an ordinary case. In almost every Case, 
 the party who lays an information or Complaint is named in the conviction, 
 although not entitled to any penalty, and though, where the information is 
 laid by an informer entitled to the penalty, or part of it, that 'feet is stated Jn 
 the convictidn ;(3) yet, it seems, that wduld only Show in whkt manner he 
 was interested and would not render, him more a party to the p'foceeding, 
 or more particulariy nahled, than any other persdn laying an information or 
 comjjlaint. It iriay, pei-haps,' also be doubted, whether the term "record" 
 in the act is not confined in' its application to procieedings in the superior 
 courts. It seems to' be clear that' an informer would hot Come within the 
 succeeding part of the ^proviso as a "person in "whose immediate and. 
 individual behalf any action " may be brought or defended • that clause being 
 expressly limited to actions ; that is, actions prdperly Sd called. 
 
 It must be observed, however, that by a teCent statute j (4) ^atesed to 
 facilitate the performance of th* duties of justices of the peace out of -ses- 
 sions, with respect to summai^y convictions ^nd orders to be made upon any 
 information or complaint laid before thpm,,it-is enacted, (5) "that every 
 ■prosecutor of any such information, not having any pecuniary interest in 
 the 'result of 'the same, and every coniplainant in any such complaint, what- 
 
 (1) It Is to 1)6 observed that Lord^ Deiiiriaii's Act.j;6'& 7 Vict. c. 85), declares ttal no 
 person offered as a witness shall hereafter be excluded by reason of incapacity from crime 
 or interest, from giving evidence either in person or by deposition, according to the 
 practice of the c6urt, oh the trial of any Issue joined, or of any nlatter orrqueslion, or on 
 any inquiry arising in aiiy suit,' action, or proceeding, civU or erimiriai. Our code, on the 
 other hand, does not attempt to alter the law of evidence in criminal cases, but declares 
 briefly and In gehgraltefnls that no person Offered as a witness sha,ll be exclijded by 
 reason of his interest in the event of the action. New York Cpde of 1848. So that not- 
 withstanding the material alteration of the',!^aV of feVidehce in this state,' the competency 
 of witnesses in criminal cases is to be determined by the' rule established at common law. 
 
 (2) See'R. v.'fliiiks,2'C. &Kiir. 4l53,|)()s«,'p.65. : 
 
 (3) Generally in this form : — "Be it remembered that on. Sic., A. B., of, &c., who aa 
 well for our Sovereign Lady the Qdeen as for liimself, doth prosecute," &c. 
 
 (4) 11 ■& IS Vict. c. 43. 
 
 (5) Sect. 15. 
 
52 Defendant in'Prosecution. [ch. It. 
 
 ever his interest may be in the result of the same, shall be a competent 
 witness to support such information or complaint respectively." 
 
 In this partipular class of cases, therefore, that is, in summary convictions 
 out of sessions, the statute appears to contain' a recognition of the old rule, 
 that an informer who has a pecuniary* int^est in the result of the informa- 
 tion, is an incompetent witness to support the same, notwithstanding the 
 provisions of Lord Denman's Act.(l)' 
 
 Defendant in criminal prosecution incorkpetent. With regard to 
 *64 ., the competency of parties defending in criminal *prosecutions, it is 
 scarcely necessary to observe, that as they are generally most strongly 
 interested in the event, it seldom happens that they can be called as wit- 
 nesses. But as in civil actions against several defendants, a co-defendant 
 may sometimes be so circumstanced as to be a competent witness : so in 
 criminal prosecutions, one of several persons jointly indicted maybe ren- 
 dered competent to give evidence either for the prosecution or for his co- 
 defendants. Thus, upon an information by the crown against two or more, 
 if a nolle prosequi be entered by the attorney-general, either before or at 
 the trial, as to one of the defendants, such defendant may b.e called as a 
 witness for the crown against his co-defendant. (2) So where, upon a joint 
 indictment against two, one had pleaded in abatement, and for want of 
 replication, judgment had been entered that he should be dismissed and dis- 
 charged, he was a,dmitted, without objection, as a competent witness for 
 the other defendant, being himself no longer interested in the event of the 
 prosecution. (3) 
 
 In lite manner, one of several defendants- may be rendered competent in 
 some cases by a separate verdict at the trial. Thus, where several persons 
 were jointly indicted for a conspiracy. Lord Tgnterden permitted a verdict 
 df acquittal to be taken 'in favor of two defendants, at the request of the 
 prosecutor's counsel, before the case was opened, in order that they might 
 be called as witnesses against the others. (4) And where, upon an indict- 
 ment against several, it appears at the close of the case for the prosecjition, 
 that there is no evidence against one of the defendants, it is usual to take 
 a separate verdict of acquittal as to him, and he inay then be called as a 
 witness on behalf of the other. (5j . Tliis is upon the same principle that is 
 commonly acted upon in cases of tort against -several defendants where no 
 evidence is adduced against one or more of them. But it would seem, from 
 analogy to these cases, that it is entirely in the discretion of the judge 
 
 ; \ ^ , , It 
 
 (1) It may lie remarked, tliat under the provisions of the Metropolitan Police Courts' 
 Act (3 & 3 Vict. c. 71), a power is given to the metropolitan police magistrates to lessen 
 the portion of any penalty to be paid to an informer not being the party aggrieved, or to 
 deprive him of it altogether (§ 68); so that in that district it seems, clear upon the 
 authority of R. v. Cole (1 Esp. 169, iwpra, p. "63), that any informer is a competent wit- 
 ness, by reason of his not having a certain interest in the event of the prosecution. 
 
 Again, there are cases under that act in which the magistrate, exercises a civil juris- 
 diction (as e. g, under sect. 40; by which he is empowered to order the delivery to the 
 owner of goods to the value of £15 which are unlawfully detained ^ being a proceeding 
 in the nature of an action of detinue) ; in such a case, it would appQjir, that the com- 
 plainant would be a competent witness under the provisions of the .11 & 12 Vict c. 
 48, § 15. 
 
 &) B. N. P. 285 ; by Lord Hardwickfe, Rep. temp. Hardw, 163, and see per eunA. in Ward 
 V.Mann, 3 Atk. 229. 
 
 (3) R. V Shearman and others. Rep. temp. Hardw. 803. 
 
 , V. Rowland and others, Ry,& Mo. 401. 
 
 The same was done in Bell v. Morrison (27 Miss. 68) ; and where the defendants are 
 tried separately, they have been held competent witnesses for each Other, though indicted 
 jointly. Lozier v. The Commonwealth, 10 Gratt., 708. 
 
 (5) R. V. Mutineers of the Bounty, cit. 1 East, 313 ; E. v. Bedder, 1 Sid. 237 ; Hawk. P. 
 C.C.46, §98. 
 
SEC. II.] Defendant in IVosecution. 53 
 
 whether or not a Terdict of acquittal is taken at the close of the case for the 
 
 prosecution. (1) 
 *65 *In the case of B.. r. Lafone,(2) as reported, some deffendants, "who 
 had suffered judgment by default to an indictment for a misdemeanor, 
 in obstructing an officer in the execution of his duty, were Rendered as wit- 
 nesses at the trial on behalf of another defendant who had pleaded, but 
 Lord Ellenborough, C. J., said, he had never known such evidence admitted, 
 and rejected the witness. " To allow this evidence," said his Lordship, 
 " would go to every criminal case ; for if two were indicted, one by suffer- 
 ing judgment by default, might protect thte other : there is a community of 
 guilt ; they are all engaged in an unlawful proceeding ; the offense is the 
 offense of all, not of a single individual only." 
 
 But it h£is been held, in a recent case, (3) that a prisoner who has pleaded^ 
 guilty to an indictment is a competent witness against other defendants 
 joined in the same indictment. It was contended in this case that the^ 
 defendant was not admissible as a witness against two other prisoners 
 included in the same indictment, because he was a party to the record; but 
 Alderson, B., observed that he was not a party to the issues; the only issues,, 
 being whether the two other prisoners were guilty or not, 
 
 Upon an indictment against two defendants for an assault, where one o£ 
 them pleaded guilty, and was fined, and paid the fine, it was decided,, that 
 he might be called as a witness on behalf of the other defendant,' who had 
 pleaded not guilty; the trial being at an. end with respect to the witness. (4) 
 
 And in a later case, upon an indictment against two prisoners for house- 
 breaking, where one of them pleaded guilty, it was ruled, that he might be 
 called as a witness by the other prisoner. (5). 
 
 Some difficulty might, perhaps, arise in cases where one of several defend- 
 ants has pleaded guilty to a charge where the; gist of the offense lies in its 
 joint commission by all or a certain number of the parties charged: e. ff.. 
 in an indictment against A; and B. for a conspiracy, in such cage if A 
 had pleaded guilty, and were called as a witness for B., he would have a 
 direct interest in procuring the acquittal of B. ; as, in that event, it seems 
 doubtful whether any valid judgment could be pronounced.. against the 
 defendant who had pleaded guilty. (6) Nevertheless, it appears, the wit- 
 ness could not be objected to on the score of interest alone; that would 
 be a matter affecting merely his credibility* and though he would undoubt- 
 edly be a party to the proceeding individually; named in the record, 
 *66 he *would not be more so than in other cases where a defendant 
 similarly situated has been admitted as a witness ; (7) in the language 
 of Mr. Baron Alderson,(8) he would not be a party to the issue. The witness, ' 
 
 (1) See Sewell v. Champion, 6, A. & E. 407, Wtite v. ffiUi 6;Q. B. 487. 
 
 Where there is &hj doubt, on the evidence, in respect to the innocence or guilt of one of 
 the parties, it is clear, from the analogy suggested that the court ought to permit the; jury to 
 pass upon the question, and thus giyo to the.other parties an opportunity to produce aJl 
 the testimony that can be fairly obtained. In a ciril action, such parties are in this state, 
 competent witnesses for each other and for themselves, and there is much more reason in- 
 permitting persons prosecuted in.behalf of the people, as for assault and battery, to testify 
 for each other. See Beal v. Finch, I Kernan, 128. But where the defendants are sued for 
 trespass in'ciittiiig and carrying away timber, one of tiem is not a competent witness, even 
 uhd^r our'cbde, for the other to prove a purcliaSe of the timber (Dean v. Thorntbi, 2 
 Kernan K. 266)'; a^d in similar cases prosecuted in the name of the people, it is very pialn 
 that one. of the pendants could not be called as a witiiess for the otheta, until the jury 
 liaa TiBRSpdutKii the question of his innocenpe or guilt. 
 
 ms E^ 134^ ■ See Hadrick v. Hesldp, 17 L. J. (N. S.) Q. B. 313 ; Ante, p. 50. 
 
 (g> B r. ifinks, 3 C. & Kir. 463. 
 
 (4) R. v. Fletcher, 1 Stra. 633. 
 
 (5) S V. George, C. & Marsh. 111. ! .■ ' 
 •6)' See 'Y.>B., 8 HeuvIV, fij 9, Hen;. IV, 9 ; Thody's C^se, 1 Yent. 334 ; R. v. Cooke; 9 B. 
 
 3. 588 ; E- ▼• K«°'^"=^' ^ Q- ^- *®- 
 
 7) See R. v. George, C. & Marsh. Ill ; Supra. 
 
 '8) In R. V. Hinks, 8 C. & Kir. 462 ; Ante, p. 65. 
 
 &C. 
 (8 
 
5^1^ Of the, JRuleeanoertimg Interest. [ch.it. 
 
 iBt,facJ,wQuld,Beem to stand in the, same position as if he were not. joined 
 in the indictment, but the other defendants were indicted alone for conspir- 
 ing with him, the witness;, in which case. there seems to be no. doubt but 
 that he would be, competent, (il) 
 
 SECTION" ni.' 
 
 Of th&. Rule of Incompetency, Considered with. Refevethce' to I%rsons in 
 whose ^ehaif an Action is Brought or Defended. 
 
 Former rule as to direct interest. Under the former state of the law, it 
 frequently happened that the nominal plaintiff on the record had no real 
 interest in the question 'at issue, and the action was prosecuted solely for the 
 bfenefit , of a thir,d person who was not. a party to the record : and if, at 
 the .triali such person were-, tendered as a witness for the plaintiff on the 
 record, he would obviously have a direct interest in obtaining a verdict for 
 the plaintiff, for such verdict, when obtained, would immediately inure to 
 his own benefit, and the witness, therefore, would have a much stronger 
 interest than the plaintiff' himself, in obtaining a favorable termination of 
 the .cause. 
 
 Indime(st. interest. And a direct and immediate benefit or disadvantage 
 from the result of the suit was not the only species of interest which, at 
 one time, rendered a witness incompetent to give evidence. For, until the 
 passing of the statute 3 & 4 Wmi IiV, c. 42, §§ 26, 27, which effected a mate- 
 rial i alteration inj the law in this respect, witnesses who were neither parties 
 tO- the reoord, nor had any direct interest in the event of the suit, were 
 ofiien rendered incompetent, by reason of an indirect interest in the record 
 mthi regaard to some subsequent suit ; although they could derive no imme- 
 diate benefit or disadvantage from the termination of the particular suit. 
 
 Thesei were the only grounds upon which a witness became incompetent 
 fconi interest,, and it. was fully settled by many decisions, that all other 
 objections, on the' ground of a supposed interest would not affect his com- 
 petency, althougli', they might affect his credit. (2) 
 
 A maiterial alteration in the la-# of evidence was effected by the last-named 
 statute,(3) with regard to witnesses, who were once considered 
 ♦e^' *inoompetent on the ground of an indirect interest, which might accrue 
 from the use of. the record as evidence for or against them in'some sub- 
 Bsquent. suit. By sectu.n 26, it was provided, that in cases where witnesses 
 were objected to upon that ground, they should nevertheless be examined 
 but that m such cases a verdict or judgment, for or against the party for 
 whom the witness should be examined, should not be admissible in^vidence 
 for or against the witness, or any person claiming under him. The effect of 
 this enactment wag to remove the objection lo the competency of the wit- 
 ;ness, in. civil suiits, by removing the interest out of which &e objection arose ; 
 and the principle upon which the statute was -founded, appeai-s to be in 
 8ome degree analogous to that of the rule adverted to in the precedintr sec- 
 tion yith reference to criminal. proceedings; namely, that a witness" in a 
 cnmmal prosecution shall, in no case, be allowed to avail himself of a con- 
 viction, where he has himself been called as a witness in svipport of the 
 indictment. The supposed interest of the witness was removed by putting 
 an end to all possiblte interest in the record, and by preventing his. deriving 
 
 ay See Poplott V. James, B. N. P. 288 ; Awli, p. 44. 
 
 r}s o^® ?«? '■ Bater, &T..B. 27 ; SmUh V. Piugor, 7 T: R. 03; B. v; Boston, 4 East. 5M 
 (o} o » 4 Win. iV, c. 4!0. ■■ - 
 
SEC. III.] A» to Persons not JParties to a /Sfetft' 59- 
 
 any benefit or sustaining any loss with reference to the use of the recotd', 
 and the termination of the suit in fevor of either party. 
 
 Having thus briefly stated the general condition of the law upon this sub- 
 ject before the passing of Lord Denman'^s Act,(i) we will now revert to 
 the provisions of that important statute. 
 
 We have seen that it has abolished generally the inconipeteney of wit- 
 nesses who were considered undter the old rule as objectionable upon the ' 
 ground of their interest in the suit ; but it provides that the enactment shall- 
 not render competent, not only the parties who are individually naiaed in 
 the record, but also, in ejectment, any lessor of the plaintiff, and any tenarit 
 of the premises sought to be recovered ; also, in replevin, the landlord or 
 other person in whose right the defendant may make cognizance ; and gen:'' 
 erally any person in whose immediate and individual behalf an action is' 
 brought or defended either wholly or in part. The law as^to the incompe- 
 tency of these parties remains, therefore, the same as before the passing of* 
 the act. (2) • 
 
 (1) 6 & 7 Vict. c. 85. 
 
 (3) The provision of the code, that no person offered as a witness shsill be excluded by' 
 reason of his interest in tlie event of the action (§ 398), accompaaiifid' witli the declamtiibn 
 that such provision should not apply to a.party to the action, nor to any person for whoaa 
 immediate benefit it was prosecuted or defended, has given rise to many decisions proper , 
 to be noticed in this connection. In the first place,, then, ' a corporator, tliough also an ! 
 officer of the corporation, is not a party for whose immediiftt&benefit the action is broilght; ' 
 and therefore) where the aotaon is against the " mayor, aldermfen and commonalty'' of a 
 city, an alderman is competent (Pack v. The Mayor; &C:, of N. Y., 3 Cqnjst, '488); and was 
 so at common law. Van Wormer v. The Mayor, &c., of Albany, 15 Wend. 263; The 
 Trustees of Watertown v. Cowen, 4 Paige, 510. And' a stockhoMer in the plaintiff's 
 bank is not a party to the action, nor a person for whose, itiimecliate benefit it is prose- 
 cuted, and iS therefore a oom-peten-t witness for' the bank. Moiitg*omery Co. Bank- v. 
 Marsh, 3 Selden E. 48t ; Washington Bank v. PalmSr, Z Sand. 686. So is a stock- 
 liolder of a railroad company a good witness for the compjinyi N. Y., and' Erie R. B. v. 
 Cook, 3 Sand. 782,. 
 
 In like manner, the next of kin to the intestate, one of those among whom the fund 
 arising from the estate of the deceased is to be distributed;'is a competent witness for the 
 administrator iii an action to recovera demand due to' the estate ; be is not the party for 
 whose immediate \3eaeSX the action ia- brought. Butlerv. Patterson, 3 Eernan R. 3S2. 
 For the same reason a residuary legatee is also, competent. Freeman v. ' Spauldjng; 3. 
 Kernan, 373; Weston v. Hatch,. 6 How. Pr, B. 443. So also, one who has assigned' his 
 property for the benefit of Creditors is a competent' witness; he is n6t a party to the 
 suit brought by his assignee, and is not the party f6r Whose imuifidiate benfefit' the action 
 is brought. Jones v. TheEast' Society, &c., of Boehester, 21 Barb. 161;; Davies V. Crajn^ . 
 4 Sand. 355. See, also, ADen, v. Hudson River Mutual Ins. Co., IS Barbi 442; 
 
 In short, there were but few cases under the code, which requires all actions to be 
 brought in the name of the real party in interest, in which a third person, could be excluded 
 on the ground that he was the person for' whose immediate benefit the action was bl^ii^ht 
 or defendedV The pfaintiff in an execution, who had indemiiified the shenff for maki'hg; 
 the levy, was held to be the person for whose' immediate benefit the suit wis defended, in 
 an action against thei sheriff for taking the property. ttoWand v. Willeits, cited' 1 Dner, 
 335> But the assignor of a cause of actioh, who had taken fVom^ the. ftasigiiee an agree- 
 ment that the latter should pay him'fifty diolTars when the deniand Should' be collected, ' 
 was held a competent witness in Davison v. Miner, 9 How. Pif. R. 534. So White the 
 assignor'of a cfes« in action had covenanted that the fdlT amount tif the claim ■was due, he 
 was, notwithstatldiag, held a competent witness in. an Action theteon, because he had no 
 immediate interest in the event of the suit. Wihthrop v. Myer, 1 Abb. Pr. B. 385 ; Bridges 
 V. Hyatt, 3.1d. 449. . 
 
 It is to be observed that the lan»ttage-emph>yed1n Lord'Denman'is Act is slight^ diffferen t 
 fronl that used in our, code. In that act it, is declared that the provision shall' ijot render 
 competent " any person in^ whose immediate and indlridual iehaif any action may be. 
 brouglit' or defended; eithet'whoIlyoriipaTt," while the lanft'aftge used in out 'statnte 
 was that the provision should " not apply to a patty to. the nclibti, hot to kny. jieiton for 
 whose immediate benefit the suit is prosecuted br"dBfehded'." 'This lattfeUage, rettd ?n 
 connection with sectioij., Ill, shows clearly that hut few cases could occui in ■which a b^r- 
 son not a party could be escluded; " Ever^ action must be 'preBecA:ted ih. tlie liaine of the 
 real party in interest, except as otherwise provided in section 113," which allows an execu- 
 tor or administrator, a trustee of an eiprSss trust, or' a "peTik)!! 'expressly ttuthotiied by 
 
gg What Interest disqualifies a Witness. [ch. iv. 
 
 *68 *In ejectment, the lessor of the plaintiff was always considered as 
 substantially a party on the record ;(l) and hy«Teason of his direct 
 and immediate interest in the action was generally incompetent as a witness. 
 Where the name of a person is used, without his concurrence, as a lessor of 
 the plaintiff, and a verdict has been entered for the defendant upon his 
 demise he may be a, witness in support of other counts ;(2) for he has ceased 
 to be a party to the suit oj: to have any interest therein. It has been seen 
 that, by the statute 3 & 4 Vict. c. 26, where parish officers arethe nominal 
 parties to an action, they are not on that account disabled from 
 *69 *giving evidence. In a very recent case,(3) where an action of eject- 
 ment was brought in respect to parish lands in which the church- 
 wardens and overseers of the parish were the lessors of th^ plaintiff (under 
 the 59 Geo. Ill, c 12, § IT, empowering parish officers to sue in respect of 
 Buch lands), it was held, that the 3 & 4 Yict. c. 26, was not repealed by 
 Lord Denman's Act. For that act does not positively render the lessor of 
 the plaintiff incompetfin* as a witness, but merely provided that, its general 
 enactment, abolishing incompetency on the ground of interest, should not 
 have the effect of rendering a lessor of the plaintiff competent where he 
 was not so before. (4) 
 
 The tenant or other party in possessioii was also held incompetent as a 
 witness for the defendant, as having an immediate interest in the event of 
 the suit,(5) for the verdict and judgment would have the effect of turfiing 
 him out of possession immediately. (6) 
 
 It has already been remarked, that if one of several defendants in eject- 
 ment, who is in possession of part of the premises, suffer judgment by 
 default as to such part, he appears to be competent to give evidence for a 
 co-defendant who has pleaded. (7) 
 
 In replevin the conusor, that is, the landlord or other person under whom 
 the defendant made cognizance, was, in general, an incompetent witness 
 for the defendant, being the person really interested in the event of the 
 cause, and in truth the substantial defendant. And the law remains 
 the same under Lord Denman's Act. , 
 
 In a case, before that statute, where there were two cognizances, one 
 under the party beneficially interested, and the other under a trustee for 
 him; the evidence of the latter was rejected, notwithstanding the absence 
 of any beneficial interest on his part in the premises. (8) The principle 
 here seems to have been that one under whom cognizance is made, and who 
 is prima facie the party, shall not be deemed competent merely because 
 the legal estate in respect of which he distrained was held by him as a 
 trustee for others. (9) . _ 
 
 In the case of Upton v. Curtis,(lo) it appears that a party, under whom 
 
 statute, to sue without joining with him the person for whose benefit the action is prose- 
 cuted. But it is not necessary to dwell longer upon this point, since both parties and 
 persons in interest are now rendered competent witnesses in their own behalf; but " such 
 examination shall not be had, nor shall any other person, for whose immediate benefit 
 the same is prosecuted or defended, be so examined, unless the adverse party or person in 
 interest is living, nor when the opposite party shall be the assignee, administrator, execu- 
 tor, or legal representative of a deceased person." Amendment of 1857 to § 399. 
 
 (1) Sea Fenn d. Pewtress v. Grange, 3 Campb. 177. 
 
 (3} See Per Cm. in King v. Baker, 2 A. & E. 389. 
 
 ^) Doe d. Sayer and others v. Hatton, Q. B. 19, Ap. 1849, before Patterson and Erie, J'g. 
 
 (4) See Dresser v. Clarke, ante, p. 45. , 
 
 (5) Doe d. Jones v. Wilde, 5 Taunt. 183 ; by Tindal, C; J., in Doe d. Teynham v. Tyler, 
 6 Bing. 394 ; Doo d. Lewis v. Bingham, 4 B. & A. 672 ; Doe d. Willes v. Birchmore, 9 A. & 
 B. 633 ; Parker v. Mitchell, 11 A. & B. 788. 
 
 (6) See 5 Taunt. 183; 6 Bing. 394; 3 N. C. 671. 
 r7M?l<e, p50. 
 
 (8) Golning v, Nias, 5 Esp. 273. See Johnson v. Mason, 1 Esp. 89. 
 
 (9) See 2 A. & E. 850. 
 
 (10) 1 Bing. 210; S. C, more fully reported 8 % Moo. 53. 
 
SBC. III.] What Interest disqualifies a Witness. 57 
 
 cognizance was made, was considered incompetent for the defendant, 
 although that particular cognizance had been abandoned. But it was 
 afterwards decided by the Court of King's Bench, in the case of 
 *70 King V. *Baker(l) that where distinct cognizances are made under 
 different parties, who do not appear to be in any manner connected 
 in interest, if one of the cognizances be abandoned at the trial, the party, 
 under whom it is made, is a competent witness for the defendant. Lord 
 Denman, C. J., in delivering the judgment of the court, after observing that 
 there was reason to suppose that the facts of the case of Upton v. Curtis 
 were not reported with perfect accuracy, said, the court were of opinion, 
 that the offer to abandon the issue joined on the cognizance uneler the wit- 
 ness, was tantamount to consenting that a verdict should be found for the, 
 plaintiff on that issue. (2) In Upton v. Curtis, the defendant had pleaded, 
 first, an avowry for rent due from one P. as tenant to the defendant, land, 
 secondly, a cpgnizance by the defendant as bailiff to P. for rent due to him. 
 The plaintiff, in fact, being tenant to P. was tenant to the defendant. The 
 court held, that P. was not a competent witness for the defendant, to prove 
 the amount of the plaintiff's rent, although the cognizance was abandoned ; 
 and this may have been because the proposed witness had an interest in 
 reducing his own rent by raising that of his tenanti(3) 
 
 Both these cases occurred before Lord Dienman's Act. Li the recent Nisi 
 Prius case, however, of Girdlestone v. M'Gowan,(4) which was tried after 
 that statute, where two defendants made cognizance, first, as bailiffs of A.' 
 and B., and secondly, as bailiffs of A. alone, it was ruled that B. could not 
 be called as a witness to sustain the second cognizance, though the defend- 
 ants gave no evidence to support the first and offered to abandon it. Ald- 
 erson, B., before whom the cause was tried, after consulting with Lord 
 Denman, C. J., who sat in the Crown Court, said : " I have consulted the 
 best authority on the construction of this act, and he is of opinion that I 
 ought to reject the witness. The defendant has put upon the record a cog- 
 nizance, in which he justifies as bailiff under the proposed witness, and the 
 case is therefore within the exception referred to. It is too late now to 
 abandon the first cognizance. That should have been done before the trial." 
 The defendants obtained a verdict and the point, therefore, was not raised 
 in the court above. 
 
 It does not appear that the case of King v. Baker was brought at the 
 time under the notice of their Lordships. The decision in that case cer- 
 ^tainly appears to be at variance with the ruling in Girdlestone v. M'Gowan j 
 and if the law is correctly laid down in the former case, it does not appear 
 to have been altered by Lord Denman's Act, which does not render a conu- 
 sor in replevin positively incompetent as a witness, but merely 
 *71 provides *that the general removal of interest as a cause of incompe- 
 tency shall not have the effect of rendering such a party competent. 
 
 In the still more recent case of Walker v. GileSj(5) tried before Wilde, 
 C. J., where- there were several cognizances, his Lordship held that a person 
 under whom one of such cognizances was made was a competent witness to 
 prove matters distinct from and independent of that particular cognizance. 
 The report of this case . unfortunately does not state what these matters 
 were. 
 
 <1) 2 A. & E. 333. 
 
 (2) 2 A. & E. 339, 340. In Hart v. Horn (3 Campb. 93), it -was ruled that tlie decla»ation» 
 of a party under Whom cognizance had been made, were inadxaissible in evidence: &>i that 
 plaintiff. 
 
 (3) See 2 A. & B. 340. 
 
 (4) 1 C. & Kir. 702. 
 
 (5) 2 C. & Kir. 670. 
 
 VOL.L 8 
 
58 JPersons in whose behalf [ch. it. 
 
 Persons ifi whose behalf action brought or defended. In the foregoing 
 instances the application of the new statute is comparatively easy ; but 
 questions of difficulty are likely to arise with reference to the parties who 
 still remain incompetent to give evidence as being the persons " in whose 
 immediate and individual behalf any action is brought or defended, either 
 wholly or in part." 
 
 In a case which occurred before the passing of the statute, where the 
 plaintiff's attorney had been examined as a witness oh his behalf, and it was 
 afterwards discovered that the plaintiff had previously assigned to him all 
 his interest in the event of the suit, the Court of Common Pleas set aside a 
 verdict found for the plaintiff and granted a new trial, (l) It was urged 
 that the mere fact of a witness havmg been examined, who turned out to 
 have an interest in the event, was not a ground for granting a new trial ;(2) 
 hut Tindal, C. J., said, the court made the rule absolute, on the ground of' 
 mala praxis; the witness, the attorney on the record, being the teal plaintiff. 
 
 Person substantiaMy interested. "When an action is brought by or against 
 a person as a trustee for another, the person substantially interested in the 
 action, though not nominally a party, was always considered incompetent 
 by reason of a direct interest ; and he will still continue so, as the action is 
 brought in his immediate and individual behalf. One test whether a witness 
 stands in that situation, seems to be^ whether his admissions would be 
 *72 evidence against *the party on whose behalf he is called; (3) another 
 test is, whether the witness would have been rendered competent 
 under the old law by release ; if he would, he will: now be competent with- 
 out one.(4); 
 
 In an action on a policy of insurance, (5), where the declaration averred 
 that the policy was made in the- names of the plaintiffs as agents for the 
 sole use and benefit of A. and B., who were interested in the goods insured^ 
 it was held, before the statute, that neither of the persons so interested was 
 a competent witness for the plaintiffs ; and that even their release to the 
 plaintiff of all actions for any sums to be recovered by them on the policy, 
 would not restore their competency ; for it must be presumed, until the 
 contrary be shown, that, as they were interested in the policy, the action 
 had been brought by their authority, and they were liable to the attorney 
 for the costs of the action. And the circumstance that the nominal plaitit- 
 iffs in the action had received an indemnity from other persons was held 
 not to make any difference, the witness still remaining liable to the attorney 
 in respect of costs. In this case, the action appears to have been brought in 
 the immediatei and individual behalf of the persons who were interested 
 in the insuranoej and consequently they would remain incompetent under 
 Lord Denman's Act, 
 
 Ws.de V. SiJneon, 2 G. B. 340. 
 
 , See Dewdney v. Palmer, 4 M. & W. 664; Turner v. Pearte, 1 T. R; 717. 
 
 Where the plaintiff transfers bU interest in tite caussiof action, pending the' suit, the. 
 court n>a^ and will, under proper circumstances and conditions, order the assignee to 
 ■fae substituted as plaintiff in the action. Howard v. 'Taylor, 11 How. Pr. R. 809. Bat the , 
 court will' not make such an order for the purpose of rendering the plaintiff a witness in 
 the cause ; nor will they, as a general rule, make the order of substitution, except 
 upon the condition that, the present plaintiflf shall not be examined as a witness in 
 the suit. Harris v. Bennett, 1 Code Bep. (N. S.) 203 ; Murray v. Genl. Mut. Ins. Co. 3 
 Duer, 607. The order in such a case can only be made upon the application of or notice 
 to the assignee, pending the suit. M'Gowan v. Leavenworth^ 2 B. D; Smith's K. 24 ; 
 Howard v. Taylor, «iM)tv>, ThO' assignee in such a case, t^kottgh not> substituted^ as plaintiff' 
 in tlie action, is clearly the party for whose immediate benefit the action is prosecuted. 
 
 (3) By Parke, B., in Sage v. Kobinson, 18 L. J. (N. S.) Exch. 81; S» C, not S. P., 8 
 ExeKB. 142. 
 
 (4) By Pollock, C. B., Id. 3 Exch. R. 145. 
 
 (5) Bell V. Smith, 5 B. & C. 188. See also Smith t. Lyon, 3 Campb. 465. 
 
 (1) 
 (3)! 
 
SEC. ni.] Action brought or defended. 50 
 
 But in an action of trover for two promissory notes,(l) wtere the defend- 
 ant pleaded that, before the plaintiff was possessed of the notes, one M. was 
 lawfully possessed thereof as of his own property ; that they had been 
 fraudulently obtained from M., and wrongfully delivered to the plaintiff; 
 whereupon the defendant, as the agent of M., and by his authority, took the 
 notes out of the possession of the plaintiff; and the replication traversed 
 the property in M'. : the defendant called M. as a witness to support the 
 affirmative of this issue ; and he stated, on the voir dire, that he had not 
 indemnified the defendant, and that he had nothing to do with the action ; 
 it was held that he was an admissible witness, at least under Lord Denman's 
 Act, even if he were not so at common law;(2) inasmuch as he had no 
 immediate interest ia the event of the suit, and the verdict could not be 
 available for him in any subsequent action. In this case, Maule, J., observed, 
 "If on the voir dire the witness had said, 'I directed the defendant to 
 obtain possession of the notes for use, and agreed to indemnify him against 
 the consequences of any action that might be brought against hjm for so 
 doing,' then he would have been the person in whose immediate behalf the 
 action was defended." For it seems, in the case suggested by the learned 
 judge, although a verdict for the defendant would have left the 
 *73 *note8 in his possession, he would, upon his own plea, have been 
 possessed of them as trustee and not merely as agent for the witness. 
 
 So, in an action by a ship-broker against the owner of a ship for com- 
 mission in procuring a charter for the ship, (3) where a witness was called 
 for the plamtiff and stated, on the voir dire, that he had introduced the 
 defendant to the plaintiff, that he had nothitig to do with the negotiation 
 and had no claim on the former, but that Ije was to receive half' the com- 
 mission from the plaintiff if he recovered, pursuant to an agreement between 
 them to that effect, and the custom amongst brokers; it was held, that the 
 witness was competent under Lord' Denman's Act. 
 
 And in a later case, (4) where a witness stated on the voir dire that he 
 had agreed to pay half the defendant's costs, and that he defended the 
 action jointly with him, it was held, that he was nevertheless a competent 
 witness for the defendant under Lord Denman's Act, as not being a person 
 in whose immediate and individual behalf the action was defended either 
 wholly or in part ; even if he were not admissible under the stat." 3 & 4 
 Wm. IV, c. 42, § 26. Parke, B., observed, in that case, "the plaintiff is to 
 show that the witness is disqualified ; but that has not been done. At 
 present, it appears only that the defendant has been indemnified by the 
 witness. It is often difficult to ascertain the dividibg point between the 
 case of one who has indemnified, and one who is a party to the suit." 
 
 So, on the trial of an ejectment between devisees claiming under difr. 
 ferent wills of the same testator, a person to whom a legacy (charged upon 
 the land, the subject, of the action)' had been given by the will, under 
 which the defendant claims, is now a competent witness for the defendant, 
 
 (1) Hearne v. Turner, 2.C. B. 535. 
 
 (2) But see Gteen v. Warburton, 2 Moo. & Rob. 105. 
 
 (3) Hill V. Kitcbing, 3 C. B. 299 ; S. C. at N. P., 2 C. & Kit. 278. 
 
 Where a party executes a contract in bis own name, wherebj; be sells a. certaiB,. 
 quantity of goods or grain, and the vendee brings an action thereon, oral proof is not 
 admissible to show that the party so executing the contract in his own name did so ^ 
 an agent, and .thereby charge the defendant or person not named in thp instrument 
 as prindpal. Fenby v. Stewart, 6 Sand. B. 101. 
 
 (4) Sage V. Robinson, 3 ExAh. R. 1.4a. 
 
 The same rule has been substontlilly adopted under our statute; thus a party entitled- 
 to a sum certain de^yending upon the success of th6 action, and an assignori wlio ha^ 
 co\>enanted' that the whole smount of thp claim io suit ig due, ure competent witnesses, 
 though as strongly Interested' in the event of' the suit as a party Who has; agreed. to^pay a 
 portion of the costs. Davison v. Miner, 9 How. Pr, 524 ; Winthjop v. Myer, 1 Abb, Pr. 
 385; Sid. 449. 
 
60 Persons in whose hehalf ' [ch.it. 
 
 as the action is not defended for the -witness's immediate but only for his 
 mediate benefit. (1) 
 
 Before the passage of Lord Denman's Act, in general, a partner, (2) 
 *74 *a co:contractor,(3) a joint maker of a promissory note, (4) and a co- 
 ■ obligor in a bond, (5) were held not to be competent witnesses for the 
 parties sued with whom respectively they participated in interest. 
 
 In each of these cases the witness was held incompetent as being inte- 
 rested in the event of the suit ; but now, upon that ground, such an objec- 
 tion would no longer prevail ; and it does not seem that in any instance it 
 could successfully be argued that the person tendered as witness was one 
 in whose immediate and individual behalf the action was defended, either 
 wholly or in part. 
 
 In a-late case, (6) where a partner who had already had a judgment against 
 him, was called as a witness to prove the same debt against his copartner, 
 but it did not appear by the record that he was an interested party, it was 
 ruled by Tindal, C. J., that he was a competent witness under Lord Den- 
 man's Act. " 
 
 And in an action against one of two part owners of a vessel upon a 
 charter party made by him alone, it was held, that the other part owner, 
 who was no party to the action, and did not authorize the defense, was a 
 competent witness for the defendant. (Y) ^An opinion was intimated by 
 Maule, J., during the argument, that the witness was competent at com- 
 mon law; (8) audit was admitted, that at any rate he might have been 
 rendered so under the statute 3 & 4 Wm. IV, c. 42, § 26. 
 
 In actions brought by or against the assignees i of a bankrupt, the rule was 
 formerly well established that the bankrupt cojild not be called as a witness 
 either to support or defeat the commission, or fiat ; (9) and this rule was 
 considered as resting; not entirely upon the ground of interest, but partly 
 upon considerations of policy and convenience. (10) 
 
 Before the passing of the 6 <fc 7 Vic. c. 85, however, it was ruled 
 
 *V5 by *Lord Denman, C. J., at Nisi Prius, in an action against the 
 
 assignees of a bankrupt for seizing goods alleged to have been 
 
 assigned to the plaintiff by the bankrupt before his bankruptcy, (11) that the 
 
 (1) Doe d. Bengo v. Nicholla, 18 L. J. (N. S.) Q. B. 81. ' ~~ 
 
 (2) Goodacre v. Breame, Peake N. P. C. 174 ; Evans v. Yeatherd, 2 Bing. 133. See also 
 Cheyne v. Koops, 4 Esp. 113 ; Jackson v. Galloway, 8 C. & P. 480. 
 
 One of a firm not sued,' is, at common law, a competent witness for Ms copartners in an 
 action against them, for a debt alleged to be due from the firm, on being released by his 
 partners from all liability to contribute ; though the English rule required also a release 
 from him to the firm of his interest in the assets of the firm, so far as respects the demand 
 in controversy. Lefferts v. De Mott, 21 Wend. 136 ; 3 Cowen, 84 ; 3 Wend. 240. 
 
 (3) Hall T. Rex, 6 Bing. 181 ; Young v. Bairner, 1 Esp. 103 ; Hare v. Munn, Mo. h M. 
 241, n. as, 
 
 Where a defendant has n6 separate defense in an action on a joint contract, a co-defend- 
 ant called as a witness could prove nothing that, would not inure to his own benefit, as 
 well as to the benefit of his co-defendant ; and as to such matters, he was therefore held 
 incompetent. King v. Lowry, 20 Barb. 532. 
 
 (4) sJegg v. Phillips, 4 A. & E. 853. 
 
 Where an action was brought against two defendants, upon a joint and several pronjis- 
 sory note, neither of them was allowed ^o testify for the other, to prove a payment 
 thereon ; on the ground that such testimony would go for the benefit of the witness, as 
 well as of his co-defendant. Newall v. Salmons, 32 Barb. 648. 
 
 (5) Townsend v. Downing, 14 East, 565. 
 
 (6) Cupper v. Newark, 2 C. & Kir. 24. 
 
 (7) Atkinson v. Foster, 1 C. B. 712. 
 
 (8) Id. 714. But see Jones v. Pritchard, 2 M. & W. 199. 
 
 (9) See Field v. Curtis, 2 Stra. 838 ; Ewens v. Gold, B- N. P. 46 ; Oxlade-v. Perchard, I 
 Esp. 288 (commented upon in Sayer v. Qarnett, 7 Bing. 104) ; Hoffman v. Pitt, 5 Esp. 25 : 
 Wyatt V. Wilkinson, Id. 187 ; Cross v. Fox, 3 H. Bl. 379, n. a; Flower v, Herbert, Id. ; 
 Chapman v. Gardner, Id. ; Ferguson v. Spencer, 1 M. & G. 987. 
 
 '(10) Seel4M..& W. 256. 
 
 (11) Smith V. Groom. 2 Mo. & R. 388. 
 
SEC. lii.J Abtion brought or defended. 61 
 
 bankrupt was a competent witness for the plaintiff,, to prove that the 
 assignment was made for a valuable consideration' and in consequence ot 
 pressure, although the defendants relied on the assignment to the plaintiff 
 as constituting in itself an act of bankruptcy. 
 
 And sin de that statute, it has been held by the Court of Exchequer,(l) 
 that a bankrupt is a competent witness, in an action by his assignees against , 
 parties claiming under an execution to prove notice to them of a prior act 
 of bankruptcy. And the court intimated a strong opinion that he would 
 also be competent, since Lord Denman'S Act, to prove the petitioning 
 creditor's debt, or the act of banki-uptcy, or any fact which tended to 
 support the fiat, "r * 
 
 In the case of bankruptcy or insolvency, the interest of the bankrupt or 
 insolvent in the fund is of the nature of a residuary interest, being subject 
 to the rights of Creditors, who are the persons primarily interested in any 
 fund realized by the assignees. The amount of the creditor's dividend 
 must depend upon the amount of the fund, and a creditor was, therefore, 
 before the statute, held to be an incompetent witness for the purpose of 
 increasing the estate, on account of this direct interest in the event of the 
 suit. He could not, therefore, give evidence to deprive the bankrupt of his 
 allowance. (2) And since the statute it has been ruled in an action by the 
 assignees of a bankrupt to recover money paid by the bankrupt, by way of 
 fraudulent preference, (3) that a creditor under the fiat is inadmissible as a 
 witness for the plaintiff, as being a person in whose immediate and indi- 
 vidual behalf the action was brought. 
 
 The creditor of a bankrupt is also interested in supporting the bankruptcy, 
 the effect of the bankruptcy being to appropriate the whole estate and effects 
 of the bankrupt towards the immediate satisfaction of his creditors. A 
 creditor was, therefore, before the statute, held an incompetent yitness to 
 support the fiat, and it was considered immaterial, whether he had or had not 
 availedhimself of the right, of proving under the bankruptcy. (4) The 
 *'76 petitioning creditor was, a fortiori, incompetent to *support the fiat, 
 for (independently of the objection just riientioned,_ which applied 
 to other creditors) he gives a bond to the chancellor, conditioned to estab- 
 lish the fact upon which the validity of the. fiat depends, (5) ' And this rule 
 was held to apply even though the petitioning creditor had assigned over 
 his debt to a third person. (6 j But bfefoi-e the passing of Lord Penman's 
 Act, it was ruled, in ah action of trespass against assignees, (Y) in which 
 the plaintiff relied upon an assignment by the bankrupt to him before the 
 bankruptcy, and, where no notice hadibeen given of disputing the bank- 
 ruptcy, that the petitioning creditor, having assigned his debt and executed 
 a release to the assignees, was a competent witness for them to prove an act 
 of bankruptcy ^prior to that on which the adjudication took place, for the 
 purpose of overruling the alleged assignment to the plaintiff. 
 
 (1) Udal V. Walton, 14 M. & W. 254. • 
 
 (3) Shuttleworth v! Bravo, 1 Stra. 507. , ; '" 
 
 On the same principle, one wlio has made an assignment for the benefit of creditors is ' 
 a competent -witness in an action by the assignee. His interest is residuary, and subject 
 to the rights of the creditors, who are primarily interested in the fund to be realized 
 from the assigned property. Allen v. Hudson River Mut. Ins. Co. 19 Barb. 442. A 
 different rule has, been held in the case of an involuntary assignment, without any good 
 reason, since the relation of the parties does not depend upon the form in whiqh it is 
 created. Vaniiuzen v. Worrell , 18 Barb. 409. 
 
 (3) Belcher v, Brake, 2 C. & Kir. 658. 
 
 (4) Adams v. Malkin, 3 Cauipb. 543 ; Crooke v. Edwards, 3 Stadc. 303, overruling 
 Williams v. Stevens, 2 Campb. 301. And see 1 Rose, 393, n. ; Ex parte Malkin, 2 Rose, 
 Z7 ; Ex parte Osborne, 2 Ves. & B. ViT. 
 
 (5) Green v. Jones, 2 Campb. 411. 
 
 (6) Carruthers v..Qralmm, 3 Mo. & E. 368 ; S. C, C.& Marsh. 5. 
 
 (7) Smitli T. Groom, 2 Mo. & B. 388. 
 
62 Of Incompetency of Husband or Wife of Forty. [ch. it. 
 
 And since the act, it has heen held,(l) that the petitioning creditor is a 
 good witness to support the fiat. 
 
 Before the passing of Lord Denman's Act^ in an action against a sheriff 
 by the assignees of a bankrupt, (8) to recover the proceeds of the bankrupt's 
 .goods which had been sold under an execution, it was ruled by Coltman, J., 
 'that the sheriff's officer, who had given the usual indemnity bond to the 
 sheriff, was not a competent witness for the defendant, even though his 
 name were indorsed iipon the record under the 3 & 4 Wm. IV, c. 42 ; his 
 Lordship observing, that the officer was substantially the defendant in the 
 action. But since the statute, in an action against the sheriff,(3) for not 
 taking a party upon a capias ad satisfaciendum, it was ru^ed that the officer 
 to Avhom the warrant upon the writ had been granted, was a competent 
 witness for the defendant, notwithstanding that he had given the bond of 
 indemnity ; it appearing that he had given no instructions to defend the 
 action. i 
 
 These cases are mentioned as illustrating the principle established by Lord 
 Denman's Act, and showing what parties are or are not to be considered as 
 persons in whose immediate and individual behalf an action is brought or 
 defended. 
 
 *n ' *SECTION IV. 
 
 Of the Rule Considered with Reference' to the Musbttnd Or Wife Of itn 
 
 Inc()mpetent Party. 
 
 As a party to a suit is not a competent witness, so neither at common 
 law is the husband or wife of the party conipetent' to give evidence for or 
 against the party. (4) And this rule reraains the same under Lord Den- 
 iman's Act, both as to the husband or wife' of the actual party to the suit 
 or of the.pei'son in whose behalf the action is broijght or defended. The 
 Tule is the same in equity. (5) , i 
 
 (1) Jdlinsbh v.iQraham, 8 C. & Kil'. 808. 
 ' (2) Gf oom v: Bra,dl6y,; 8 C. & P. 50. See also PoWell v. Hord, 2 Li' Baym. 1411 ; ' S. C, 
 1 Stra. CoO. 
 
 (3) Wilson V. Magnay, 1 C. & Kir. 291 ; Wheeter v.rSenior, Id.^293, n. 
 
 (4) Co.' titt. 6 6; Hawk. b. 2; c. 46. § 70 ; Gilb. Ev, 119 ; B. Ni »P. 286. 
 
 (5) Sefe 'Sedgwick 'v. Watkins, 1 Ves. 49 ; ToWlesV. Young;, 13 Ves. 144; Langls^r v. 
 Fisher, 5 Beav.' 448. 
 
 The parties to the action were by the alct'toamend the Law of 'Evidence (14 & 16 Viot. ' 
 c. 99), passed in Augjist, 1851, randered Competent and compellable to give evidenco on 
 behalf of either or any of the parties to the siiit, aiction ol- other prdoeeding. The same 
 act contained the following exceptions : " § 3. Nothing ]ierein contained shall render any 
 petadu'WhO, in'any iCriminaVpWcteeding, is chared with thb cOinniiSsib'tt of SiBy indibtable 
 offense, or any offettSe iptinish'tkble On summary cOnvictlOn, Competent or compelltible 'to 
 give evidence for or against himself or heraelf, or shall render any person compellable 
 to answer any question tending to criminate himself or herself, or shall in any criminal 
 proceeding render any husband competent or coipjiellable to give evidence for or ^glainst 
 his wife, or. any wife competent or compellable to give evi'dence^fol: or against her hus- 
 band." '"§ 4. Nothing herein contained dhall apply to any action, suit, proceeding or bill 
 in any coutt of common law, or in any ecclesiastical court, or in either house of Parlia- 
 llient, instituted ill consequence of aiiulteify, or to any action for breach of Jirdmise of 
 inarriage." 
 
 Under the ftbove plroVisiDhs, it Was adj u'dged tliat a wife is not a competent witness for 
 her husband. Who is a party to the suit. ' 'The; tliird section seenls to imply that she is 
 competent in civil cases; but it was expressly 'held in Stoipletoh v. ferofts, that She'was 
 not thereby rendered coftijieteut— -her exclusion under the cOnimon-law rule being 
 foilrid^d, not bh thfe interest of iliepal-ty, but on reasons of public policy. 83 Eng. Cbm. 
 Law'Rep. 385; S.-'C, 18 Adiil. & Ellis (N. S.) 367; Alooiik v. AlCbik, 12 Eng. Law & 
 Eq. 854. 
 
 Under a still later statute (16 &,17 Vict, c, 83), hjisbahds ariii wivesare rendered Com- 
 petent and compellable.'ln all iMl cases, to give evidence •' On behalf of toy or eitller of 
 
SEC. IV.] Of Incompetency of Susband or Wife of Party. 63 
 
 *78 *No other relation, however, is excluded :(1) a father may give evi- 
 dence for his son, or the son for his father ; although the relation 
 between them may influence his testimony, it will not render him incom- 
 petent. 
 
 _ The reason for excluding the hysband and wife from giving evidence 
 either for or against each other, is founded partly on their identity of inter- 
 est, and partly on a principle of public policy, which deems it necessary to 
 guard the security and confidence of private life, even at the risk of an 
 occasional failure of justice. 'Hiey cannot be witnesses for each other, 
 because their interests are absolutely the same ; they are not witnesses 
 against each other, because this is inconsistent with the relation of marriage, 
 and the admission of such evidence would lead to disunion and unhappj- 
 ness, and possibly to perjury. (2) 
 
 This general rule of evidence, which has been adopted for the purpose of 
 promoting a perfect union of interests, and of securing mutual confidence, 
 IS so strictly observed, that even after a dissolution of marriage by divorce, 
 the wife is not admitted to give any evidence of what occurred during the 
 marriage, which would have been excluded if the marriage had continued. 
 (3) This, as Lord Ellenborough, C. J., has said, (4) is on the ground, that 
 
 the parties to the said suit, action or proceeding ;" but this provision does not extend to 
 criminal cases, nor to cases of adultery ; and neither husband nor wife is competent or 
 compellable to disclose any eotmriuifticaUon made to Mm or her by the other during mar- 
 riage. 
 
 Our code (§ 890) declares that a party to an action may be examined as a witness, at the 
 instance of the adverse. party, or of any one of several adverse parties ; but it has been 
 Ixeld that the defendant cannot, under this provision, be called and examined as a witness 
 ■for the plaintiff in an action for a divorce for adultery (Arborgast v. Afbdrgast, 8 How. 
 Pr. B. 1^7) ; nor where the husband and "wife are both sued for work, labor and materials 
 furnished to the wife (Main v. Stephens, Voorhies' Code, 549) ; or for assault and battery. 
 Pillow V. Bush»ell,.5 Barb. 156. 
 
 The codfe (§398) provides that no persoli offered as a witness shall be excluded by rea- 
 son of his interest in the eiVent of the actifin ; but it has been adjudged that a married 
 woman cannot be compelled to testify as a witness in ah action against her husbaUd ; her 
 incompetency at common law being placed on grounds of public policy, as well as inter- 
 est. Ervfin v. Smaller, 2 Sand. 340. Nor is the husband a competent witness in an 
 action where the wife sues alone for her separate property. Hasbrouck v. Vapdervoort, 
 4 Sand. 596. . -- ,. 
 
 The wife ia a comt)etent Witness for her husband, under a late statute in the Bta;te df 
 Connecticut. Merriam v.Hairtford & N. H.E. E. Co., 30 Conii', R.'354. 
 
 (1) 1 Hale, P. C. 303 ; 2 Id.'276 ; Hawk. b. 2, c. 46, § 76 ; 'B. N. P. 287 ; 1 Wils. 332. 
 
 (2) See by Tindal, C. J., in'O'Coiinor v. Majoribanks, 4M. & G. 443. 
 (8) Monroe v. Twisleton, Pea. Add. Ca. 321. 
 
 (4) In AVeson v. KinnaiJd, 6 East, 192. 
 
 Barnes v. ComaCk (1 Barb, '392) is to the same effect, holding that the rrile excluding^ 
 the wife frorH giving testimony against her husband, continues to ilpply after a dissolu- 
 tion of the, marriage contract, as regards transactions that took place previous to the 
 divorce, and tomitig.to her knowledge in, consequence of the mutual trust and confidence 
 arising out of the maririagerelation. She canUot prove acontradt made by her husband. 
 Cook V. Grange, 18 Ohio, 536. But the're are "exceptions to the rule. Thus, ih bastardy Cases, 
 where the i&other is a maiWed woman, l!hol%h not competent to prove the non-access of 
 the huSband, Shbi%,'fr6in,il):enee6ssity dfihe wirig, constantly admitted to^rove the crim- 
 inal .intercourse by which the child was begotten. The King v. Luffe,'8 East, 193 ; The 
 King V. Inhabitants of Kea, ll Id. 132; CttritOa v. Bentley, 11 Mass. 441. Apd in an 
 action for criminal camersation with plaintiff's ,wife, the plaintiff has beSh pelf ttiitted, after 
 Showing a divorce a'eiiiMto matrirncihii, to prove the adultery by her ; the giving of such 
 testimony, sifter a'divorfce, does not'betra;y any trust or, confidence arising out of the former 
 relation. Rattillff v. "Wales, 1 Hill R. 6Z ; Dickerman v. Graves, 6 Cush. 808. 
 
 Under the cofle, BebtibnS 397,'398, and 899, as they now stand, husband and wifeare com- 
 petent Witnesses in theirown behalf, when co-plaintiffs or co-defendants ; and in'like cases 
 competent for. each other ; while in actions between one of them and a third person, 
 neither, ife cotnpetent for or against the other, nor can they be cklled upon to diScloSe com- 
 nmniCatioBs passjng between them, 30 iarb, 506. They are not now excluded bn the 
 ground of interest but on tlhe ground of pdWic policy. 2 Sand. 340 ; 4 Id. '596 ; 8 How. 
 Pr. 297 ; 5 Sold. 153. In an action against thetti df Slainder, for words uttered by'the wife, 
 or in an action brought against them to get aside a conveyance to.the wlfb in fiattd'oif his 
 
64: ' Of tncorrvpetehcy of Husband or Wife of Party. [ch. ly. 
 
 the confidence which suhsisted Ibet-ween them at the time, shall not be vio- 
 lated in consequence of any future separatidn. Thus one great cause of 
 distrust is retnoved, by making- the confidence, which once subsists, ever 
 afterwads inviolable in courts of law. 
 
 Upon the same principle, where the marriage has been terminated by the 
 death of either party, the survivor will not be permitted to give evidence 
 of transactions that occurred during the marriage. Thus, in an action by 
 an executor, it has been held, tha1i,the widow of the testator cannot 
 *V9 *be allowed, on the part of the defendant, to give evidence of a con- 
 versation between herself and the testator. (1) 
 
 In one case, (2) indeed. Lord Tenterden, C. J., had ruled that a widow 
 was a competent witness for the plaintiff in an action brought against the 
 executors of the husband on his promise ; but this case must be considered 
 as overruled by a more recent decision, (3) where, in an action of trover 
 for certain goods brought by the representative of the husband, it was 
 held, that his widow was not admissible- as a witness for the purpose of 
 showing that she pledged the goods with the defendant by her husband's 
 authority. (4) 
 
 Rule not confined to confidential communications. This rule,"which con- 
 siders the intimate relation subsisting between married parties as not 
 dissolved by divorce or death, so as to let in the evidence of either party, 
 as to transactions occurring during their joint lives, is not confined to cases 
 where the communications between the husband and the wife are of a 
 confidential nature. Such a limitation of the rule would very often be 
 extremely difficult of application ; and would introduce a separate issue in 
 each cause, as to whether or not the communications between them were of 
 a confidential nature. (5) 
 
 But where a fem,e sole, being the payee of a promissory note, married, 
 and her husband survived her, it was held, in an action by her administrator 
 against the maker, that the husband was a competent witness to prove 
 
 creditors, each of them is a, competent witness on the trial of the cause, 30 Barb, 506 ; 19 
 How. Pr.! 86 ; 37 Barb. 44. So where they unite in bringing an action to cancel and 
 restrain the foreclosure of their bond and mortgage on the ground of usury, the husband is 
 a competent witness, notwithstanding the wife's interest, by reason of her inchoate right 
 of dower, in the event of the suit. Babbott and wife v. Thomas, 31 Barb, 277. 
 
 After laying do*n the rule in genera! terms, our authors proceed first to consider the 
 incompetency of husband and wife against each other {Post p. 83) and second their incom- 
 petency /ur each' other, p. 87. Under the former practice xn equity, in suits between 
 husband and wife, the complaint and answer were made under oath. Fry v. Fry, 7 Paige 
 ch. 461. But they are not admissible as witnesses in such an action, unless it be by 
 virtue of the provisions of the code. Alcock v. Alcock, 12 Eng. Law sthd Eq. 354 ; 5 Seld. 
 153 ; see 37 Barb. 44. The husband being incompetent on the ground of interest, his 
 wife was also held incompetent. Smead v. Williamson, 10 B. Mon, 402. 
 
 (1) Doker v. Hasler, 1 Ry, & Mo. 198, by Best, C. J. 
 
 (3) Beveridge v. Minter, 1 C. & P. 364. It is remarked in a note in 4 M. & G. 439, e, 
 that the verdiiit in this case being for the defendant, the objection could not be brought 
 before the court. 
 
 (3) O'Connor v. Majoribahks, 4 M. & Q. 435. 
 
 (4) Soft Humpl)(feys v. Boyce, 1 Mo. & R. 140,jpM<. 
 
 Where the husband or wife is dead, the- other may, it seems, give evidence of facts 
 affecting the estate of the deceased, that did not come to his or her knowledge through 
 the relation of confidence existing between them. Pike v. Hayes, 14 N. Hamp. 19. The 
 late English statute, rendering them competent and compellable, in all civil cases, to give 
 evidence on behalf of either of the parties, expressly declares that they shall not be com- 
 petent to disclose any communication made to him or her by the other during marriage. 
 16 & 17 Vict. c. 83, § 8. The husband being dead, the wife has been held' competent to 
 show the execution of a deed to a third person. Gaskill v. King, 12 Ired. 211. But she 
 is not permitted at common law, after his death, to disclose communications made to her 
 hy her husband, concerning his affairs, when no other person was present. Baboock v. 
 Booth, 2 Hill R. 181 ; Osterhout v. Shoemaker, 8 Hill E. 619. 
 
 (5) By Tindal, C. j:, 4 M. & G. 448. 
 
SEC. IV.] Of Incompet&icy of Bksband or Wife of Party. 65 
 
 payment of the interest to him iduring coverture, so as to take the case out 
 of the Statute of Limitations. (1) This case was decided Upon the ground 
 that the husband had not, by the receipt of the interest, reduced the note 
 into possession, and that he was not the person in whose behalf the action 
 was brought. ■ , 
 
 In a case before Lord Hardwicke, he would not suffer a wife to be a 
 *80 *witnesg, though her husband consented. (2) "The rule," he said, "is 
 
 for the peace of families, and such consent should never be encour- 
 aged." But in another case,(3) Best, C. J., expressed his willingness to 
 receive the evidence of the defendant's wife, if the defendant had consented ; 
 but there he refused his consent. Where a party consents that his wife 
 shall be examined as a witness against himself, there can be no violation of 
 confidence, which is a principle ground of the rule of exclusion; but the 
 probability, that if such evidence were generally admitted, family dissen- 
 sions might be increased, is not altogether obviated by the circumstance of 
 consent. ' : : 
 
 The same reason applies to the declarations of the husband or wife. 
 Where an action is brought by or against the husband, or by the husband 
 and wife jointly, in right of the wife, the general rule is, that the declara- 
 tions of the wife are not evidence against or for the husband. (4) In an 
 action of trespass against a husband and wife, the wife's confession of a 
 trespass, committed by her, cannot be given in evidence against the hus- 
 band. (5) In an action for goods supplied to the ' defendant's wife, who, as 
 it appeared, lived separate upon an allowance from him, it was held, that 
 her declarations as to the .receipt of the allowance could not be admitted 
 in his favor. (6) A discourse between the husband and wife, in the 
 
 (1) Hart V. Stephens, 6 Q. B. 937. 
 
 (2) liarker v. Dixie, Bep. temp. Hardw. 264. ^ 
 
 (3) Pedley v. Wellesley, 3 C. & P. 558. 
 
 Note 84. — Where the husband is a party, the wife cannot be a witness either for or 
 against him. Fitch v. Hill, 11 Mass. Rep. 286 ; Commonwealth v. Shriver, Quarter Ses- 
 sions, Phila:. 1820, MS. ;. City Bank v. Bangs, 3 Paige, 36. 
 
 She shall not be examined against her husband, on his trial for murder, even by 
 consent of the parties. Randall's Case, before Van Ness, J., 5 Cit. H. Recorder, 141, 153, 
 154. Nor can she be examined for the plaintiff, though the defendant married her after 
 the plaintiff had subpoenaed her in the cause. Pedley v. Wellesley, 3 Carr. & Payne, 558i 
 
 In one case, the court refused to hear the husband as a witness against one indicted for 
 larceny jointly with his wife, though she was not taken, and the district attorney entered 
 a nolle prosequi^ as to her ; for, perhaps, her husband might disclose enough to require 
 that a bench warrant should' issue against her. The People v. Colbern, 1 Wheel. Cr. 
 Cas. 479. 
 
 (But where two persons were jointly indicted for an assault, and one of them was 
 defaulted on his recognizance, his wife was held a competent witness for the other. The 
 State V. Worthing, 81 Maine, 62.) 
 
 (4) Winsmore v. Greenbank, Willes, 577 ; Alban v. Pritchett, 6 T. R. 620 ; Barron r. 
 Grillard, 3 Ves. & B. 165 ; Baker v.-Morley, B. N. P. 28. 
 
 (5) Denn v. White, 7 T. R. 112. 
 
 (6) Hodgkinson v. Fletcher, 4 Campb. 70. 
 
 The husband being dead, the wife is not incompetent to prove a fact coming to her 
 knowledge by the open declaration of her husband "in the presendei of other persons. 
 Pike V.' Hayes, 14 N. Hamp. 19 ; Hay v. Hay, 3 Rich. Eq. 384. But she cannot disclose 
 communications made to her alone. Babcoek v. Booth, swpra. Neither the husband nor 
 wife is a competent witness against the other, much less can the declarations of one be 
 proved as against the other. > Pillow v. Bushnell, 5 Barb. 156 ; where it was held that in 
 an action, brought by the husband and wife for an assault on the wife, the latter could 
 not be c&Ued as a witness. 
 
 Note 35. — See The City Bank v. Bangs, 3 Paige, 36. On the trial of an indictment 
 against' husband and wife for receiving stolen goods, the deolara,tion of the wife respecting 
 the goods, which were found in the husband's house, were offered in evidence ; and 
 though the declarations tended to criminate the husband, held that they must, notwith- 
 standing, be received, in order to show the guilt of the wife; and the jury must take 
 care that they did not operate to the prejudice of the husband. ^ Commonwealth v. 
 Briggs; 5 Pick. 439. 
 
 Vol. L 9 
 
]66 Of Inc()mpetmoy 6f JIusbanfl or TVi/f of Party. [cp, iv. 
 
 *81 *presence of a third person, may be given in eyidpnce against the hus- 
 band, like any other conversation in whjch he may have been concerned. 
 Letters written by the husband or wife are subject to the same rule as 
 their declarations. In general, letters writtpn by the huBbg,nd to the wife 
 may be read as evidence against him, but her letters to hirp wUl not be 
 evidence for him. (1) 
 
 This rule is intended for the protection of persons who have entered into 
 the relation of husband and wife ; and dQe§ not extend to those, who, not 
 being married, have lived together and cohabited as man and wife. 
 *82 Where *a woman, called as a witness by the defendant, had in fact 
 been married to the plaintiff, and lived with him as her husband 
 during the time of the transactions to which she was called to speak, but 
 had ceased to live with him when her former husband (who had been absent 
 from this country upwar4s of thirty years, and was supposed to be dead) 
 returned from abroad, it was held, that there was no objection to her evi- 
 dence. (2) Though a person has represented a woman to the world as his 
 wife (to whom he was never- married), it has been decided, that she is not, 
 therefore, incompetent to give evidence in any legal proceeding to which that 
 person is a party, (3) although this seems to have been doubted formerly. (4) 
 
 ■ # ~ 
 
 Declarations of a wife, made in the alDsence of the husband, are not evidence against 
 him, though she be a party to the suit, which is brought to recover land in which she is 
 jointly interested in her own right. Moody v. Fulmer, Whart. Dig. (3d ed.) 308, pi. 439 ; 
 Turner and wife v. Coe, 5 Conn. Jlep. 93. (The wife's adipission during coverture, of a 
 4ebt due from her before marriage, is not admissible as evidence against her husband. 
 Ross V. Winners, 1 Halst. Rep. 3(56 ; Hawking v. Hattoii et ux., 2 Nott & M'Cord, 374, 
 S. P.) 
 
 Note 36. — On the other hand, the learned author seems to have erred in laying down 
 the rule as general, that the declarations of the husband shall not be received to affect 
 the wife. It is believed that where they are joint parties, as they must be if both are 
 alive, either as plaintiffs or defendants, even in respect to matters which, independent of 
 the coverture, would concern the wife alone, the husband's declarations should be received 
 against both. Accordingly, it has been adjudged that, in an action for a wrong done to 
 the wife (e. g. slander), brought, as it must be, in their joint naiftes, his admissions (a. g. 
 that the slander did not originate with the defendant) are admissible against both. Evans 
 V. Smith, 5 Monroe, 363, 364. Otherwise where she is a sole party claiming under a right 
 paramount to the husband's, after his death, though his admission may have been made 
 during coverture. Thus, an admission of the deceased husband, in respect to his widow's 
 claim of land in her own right, are not admissible against her, for her claim is not 
 through, but independent of him. Smith v. Scudder, 11 Serg. & Rawle, 335. 
 
 Where the wife is indicted for a crime, living the husband or after his decease, the pro- 
 priety of the, exception is still more striking. Thus, on trial of an indictment against a 
 married woman for larceny, where evidence that her husband had deposited a sum of 
 money for the use of the person whose property she was alleged to have stolen, to be 
 paid over to him in case he should not appear at the trial to testify against her, which 
 sum was afterwards paid over to him, he not having appeared according to his recogni- 
 zance — was received as evidence against her; and the jury were told they might infer 
 her privity with and consent to the husband's acts ; and she was convicted ; a new trial 
 was granted, the court saying' that acts done by the defendant's husband, without her 
 knowledge, were improperly admitted. Commonwealth v. Bobbins, 3 Pick. 63. 
 
 (1) B. N. P. 28. 
 
 Note 37. — Such letters are admissible, whether written to the husband or others, to 
 show the state of the wife's feelings, altliough they may also state a fact which would 
 not strictly be evidence. Willis v. Bernard, 8 Bing. 376. 
 
 So, in an action against the husband for necessaries furnished the wife, upon an allega- 
 tion that she had left his house on account of his cruel treatment, her letters, written in 
 affectionate terms, are admissible to rebut such tiUegation. But it must be proved at 
 what time they were written, or they are not so admissible. Their dates are not suffi- 
 cient proof of the time, when they are offered in favor of the husband, on account of the 
 danger of collusion, though it is generally otlierwise. Houliston v. Smyth, 2 Carr. & 
 Payne. 22. 
 
 (2) Wells v. Fisher, 1 Mo. & B. 99 ; S. C. vi Wells v. Fletcher, 5 0. & P. 12. 
 
 (3) Batthews v. Qalindo, 4 Bing: 610. 
 
 (4) See Anon, cit. 1 Price, 83 ; Campbell v. Twamlow, Id. 81. 
 
 Note 38. — CThe legal relation of husband and wife must exist, in order to make it the 
 
SEC. IV.] Ineompetency against each other. 67 
 
 In these cases, the parties at the time were not ?ictually husband and 
 wife; but where that relation does exist at the trial, the rule is so strictly 
 applied as to rqpder a wife incompetent against her husband, altjjough the 
 marriage took place after the wife was served with a, subpoena to give 
 
 evidence in the suit.(l) 
 *83 *It is now proposed to illustrate the rule by a reference to some 
 particular cases ; tp sho\\r first, that a husband and wife are not 
 competent witnesses against each other ; and secondly, that they are not 
 competent for each other. 
 
 1. Husband and wife not competent against each other. First, it is a 
 general rule, that husband and wife cannot be witnesses against each other, 
 either in civil or criminal proceedings. In an action brought by a woman 
 as feme sole, the defendant cannot call the plaintiff's husband to firove her 
 married, thereby to nonsuit her. (2) And the wife of a bankrupt cannot be 
 examined to prove his bankruptcy. (3) 
 
 In an action brought by a trustee under a marriage settlement, to recover 
 back the value of certain goods which had been sold by the defendant as 
 sheriff, under an execution against the husband of the cestui que trust, the 
 husband was not admitted to prove, on the part of the plaintiff, that the 
 goods had been conveyed in trust to the plaintiff for the separate use of his 
 (the witness's) wife. (4) In thisycase, as the witness's debt would have been 
 discharged by a sufficient execution, Kis evidence would have been in that 
 
 ground of excluding them from giving testimony for or against each other. Thus, a 
 slave who cohafeits with a free woman of color, as her husband, is a competent witness 
 against her on the trial of an indictment for leasing a house to be kept as-a^iawdy-house. 
 Coleman v. The State, 14 Miss. 157.) And it is now settled that a kept mistress, who has 
 passed as the party's wife, is competent for him ; though it may be otherwise if he 
 habitually allow her to pass as his wife. Several of the judges recognized the opinion of 
 Lord Kenyon, G. J., cited in the text, as sound law ; though Best, C. J., thought the wife 
 should be so dejure, in order to be excluded. Batthews v. Galindo, 4 Biug. 610 ; B. C, at 
 N. P., 3 Carr. & Payne, 338 ; S. C, 1 Moore & Payne, 655. And see Randall's Case, 5 C. 
 H. Kec. 141, before Golden, Mayor, and Jay, Beeorder. In a case where the woman was 
 sued, a witness who lived with her as her husband was received as competent in her 
 behalf. Meunier v. Couet, 2 Mart. Lou. Rep. 56. 
 
 (1) Pedley v. Wellesley, 3 C. & P. 558. 
 
 Note 39. — Vyhere a party shall lose his witness where the latter voluntarily acquires 
 an interest after the former had a right to his testimony, will be more fully considered 
 in a future note. Where he has attested a paper, his handwriting may sometimes be 
 proved. Ford, J., in Henarie v. Maxwell, 5 Halst. 398. But in general the only way iu 
 which the difficulty can be obviated, is still to admit him as competent. Commonwealth 
 V. Gore, 3 Dana, 474 ; Den ex dem. Rem v'. Jackson, 2 Dev. 187, 189, 190. This was 
 refused where the witness had married a wife who waS interested. Van Home's Ex'r v, 
 Brady, 1 Wright. 453. 
 
 The commonwealth in u, case where it is not bound to prosecute without securityj 
 acquires no interest in the witness's testimony till the indictment be found. Therefore, 
 where a witness agreed before that, to indemnify the prosecutor, he was lieW incompetent 
 for the commonwealth. Commonwealth v. Gore, 8 Dana, 474. 
 
 Several courts also require, in addition to the fact that subsequent interest has been 
 acquired, that a want of bona fides in its acquisition should also appear. If honestly 
 incurred in the usual course of business, and without any intent to deprive the party of 
 his testimony, either in the witness or opposite party, he may in this way, render himself 
 incompetent. Eastman v. Winship, 14 Pick. 44, 46, 47. See Manchester Manufact. Iron 
 Co. V. Sweeting, 10 Wend. 162, 164, S. P., per Savage, C. J. 
 
 If the party introducing the witness have assented to his, taking an interest, he is 
 incompetent. In Hovill v. Stevenson (5 Bing. 493), the plaintiff having assigned an 
 interest in the charter party on which he sued, to the subscribing witness, and the latter 
 refusing to release, evidence of his handwriting was precluded, and the action in conse- 
 quence failed. 
 
 (3) Bently v. Cook, 3 Dougl. 442. 
 
 (3) Ex parte James, 1 P. Wms. 611. See infra, as to examination before commissioners. 
 
 (4) Davis Y. Din woody, 4 T. R. 678. 
 
68 Incompetency against each other. [ch. it. 
 
 ■respect against his personal interest :(l) but, on the other hand, it was the 
 wife's interest to have the property secured for her separate use ; and though 
 the action was between third persons, yet it directly affected her inte- 
 *84 rest, the action being brought by her trustee for her benefit, *and 
 the real point in issue being whether the goods belong to her or her 
 husband. 
 
 The husband and wife are not allowed to be witnesses against each other 
 in criminal proceedings, except in certain cases which will afterwards be 
 mentioned. In a prosecution for polygamy, the first husband or wife can- 
 not be admitted to prove the former marriage against the prisoner; (2) such 
 evidence would directly criminate, and, therefore, is not admissible for the 
 reason before mentioned. On a trial for murder, the wife of the prisoner 
 cannot be a witness against him. On a prosecution against a woman and 
 others, for a conspiracy in procuring a marriage between her and her hus- 
 band, the man is not a competent witness against her in support of the 
 prosecution. (3) It seems also to be the better opinion, that a wife is not 
 compellable to give evidence against her husband on a charge of high 
 treason. (4) 
 
 In collateral proceedings. Although the husband and wife are not 
 allowed to be witnesses against each other, where either is directly and 
 immediately interested in the event of a proceeding, whether civil or crim- 
 inal, yet, in collateral proceedings, not immediately affecting their mutual 
 interest, their evidence is receivable, notwithstanding that the evidence of 
 the one tends to contradict the other, or may subject the other to a legal 
 demand, or even to a criminal charge. 
 
 The rule laid down in the case of The King v. The Inhabitants of 
 CHviger(5) (namely, that a husband or wife ought not to be permitted to 
 
 (1) See Bland v. Ansley, 2 N. R. 331. 
 
 Note 87. — The case of Davis v. Dinwoody (4 T. E. 678), can hardly Ije supported upon 
 a question of interest ; but in another view, it may be easily sustained. The wife was 
 the real party, like a lessor in ejectment {ante, note 27), or the assignee of a chose in 
 action. Id. These, it will be seen, by the cases there cited, of Robinson v. Neal, and 
 Mauran v. Lamb, are to be deemed the real parties. So in this case of Davis v. Dinwoody, 
 the wife being the real party, though the suit was in the name of her trustee, the husband 
 could not be sworn ; not because of his interest, for that appears to be balanced ; but as 
 Tiuaband his vyife being a party. The action could not properly be said to have been 
 between third persons. 
 
 In this view, the case of Richardson v. Learned (10 Pick. 361, 267, cited also in note 
 42), is quite questionable, as I had occasion to mention in the note referred to. 
 
 Independent of the strong interest wliich the husband has in the recovery of his wife's 
 trustee, according to Davis v. Dinwoody, she was the cestui que trust of the plaintiff, who 
 was suing for her money — yet the husband was held competent to testify for her. 
 
 (It is clear from the later decisions, that the husband is not a competent witness in an 
 action involving either the legal or equitable estate of his wife ; nor the wife against her 
 husband in an action involving his interests. Erwin v. Smaller, 2 Sand. 340 ; Robbins v. 
 Abrahams, 1 Halst. Ch. (N. J.) 475 ; Footman v. Pendergrass, 2 Strobh. Eq. 817 ; Edwards 
 V. Pitts, 3 Strobh. 140 ; Mayrant v. Guignard, 3 Strobh. Eq. 112 ; Hasbrouck v. Vander- 
 voort, 4 Sand. 596 ; Miller v. 'Williamson, 5 Md. 219 ; Johnson v. Slater, 11 Gratt. (Va.) 
 331 ; Jones v. Norton, 10 Texas, 120. And it is evident that letters or declarations writ- 
 ten or made by either «)f them cannot in such cases be used as evidence against the 
 other.) 
 
 (2) Mary Grigg's Case, Sir T. Raym. 1. 
 
 (8) R. v. Serjeant and others, 1 Ry. & M. 352, before Abbott, C. J. 
 Fitch V. Hill, 11 Mass. 286 ; City Bank v. Bangs, 3 Paige, 36 : The People v. Colbern, 
 1 Wheel. Crim. Cas. 479. 
 
 (4) H'. P. C. 801 ; Brownl. 47, contradicting Sir T. Raym. in Grigg's Case, dted Gilb. 
 Bv. 19. B.N. P. 259. / 66 . 
 
 (5) 2 T. R. 268. 
 
 Note 40.— See Fitch v. Hill, 11 Mass. Rep. 286. 
 
 On the traverse of an indictment for subornation of perjury, where two witnesses on 
 the part of the prosecution swore that the testimony given by them on a former trial was 
 
SEC. IV. J Incompetency against each other. 69 
 
 give any evidence that may even tend to criminate each other), is now 
 considered as having been laid down in terms much too general and 
 undefined. 
 
 This rule was much discussed in the cases of The King v. The Inhabitants 
 
 of All Saints, "Worcester,(l), and The King v. The Inhabitants of 
 *85 *Bathwick;(2) where the Court of King's Bench was of opinion, 
 
 after much argument, that the rule laid down in . the case of The 
 King V. Cliviger, was too large and general. It was decided, in The King 
 V. Bathwick, upon a question respecting a female pauper's settlement, where 
 a man had been called to prove his marriage to her, that another woman 
 was a competent witness to prove her own previous marriage with the same 
 man ; for although, if the testimony given by both witnesses were true, the 
 husband had been guilty of the crime of bigamy, yet nothing that was said 
 by the wife in that case, nor any decision of the Court of Quarter Sessions, 
 founded upon her testimony, could afterwards be received in evidence to 
 support an indictment against him for that crime ; it being altogether res 
 inter alios acta ; neither the husband nor the wife having any interest in 
 the decision of the question. 
 
 In The King v. Grleed,(3) however, upon an indictment for larceny, 
 
 false, their wives' testimony was held not admissible to impeach that of their husbands, 
 either directly or collaterally. New York Gen. Sessions, before HadcliflF, Mayor ; Francis 
 & Jones' Cases, 1 Cit. H. Rec. 121. (guerre. Indeed, it would seem now to be the settled 
 doctrine, both on authority and principle, that husband and wife may be received to con • 
 tradict or criminate each other in a collateral matter, i. e. in all cases except where one is 
 called to contradict or criminate the other as a party to some cause. 
 
 (1) 6 M. & S. 194. 
 
 (2) 2 B. & Ad. 639. 
 
 Note 41. — The mse of Eex v. Cliviger was still farther questioned in The King v. The 
 Inhabitants of Bathwick (3 Barnw. & Adolph. 639), where the doctrine in the text seems 
 to be fully confirmed. In that case, on a question of settlement, the husband, C, swore 
 to his marriage with the pauper, but did not say, nor was asked whether he had not been 
 before married to M. She was called and allowed to prove her previous marriage with 
 C, for this is not contradicting her husband, though the court intimate she might do so. 
 As to criminating her husband, within the case of Rex v. Cliviger (2 T. R. 263) ; the court 
 doubt that case much ; say it was shaken by Rex v. The Inhabitants of All Saints (6 M. 
 & S. 194) ; and strongly insist that the wife may be received to . prove facts which might 
 go to show the criminality of the husband, provided her testimony now would not be 
 evidence to affect him in a prosecution against him. 
 
 (3) 2 Russ. Cr. & M. 983, ed. by Greaves. 
 
 Note 42. — During the trial of five defendants on an indictment for an assault and 
 battery, the counsel for the defendants moved that the wife of one of them might be 
 examined as a witness for the other four ; but the court ruled unanimously that she could 
 not be examined. To have had the benefit of her testimony they should have moved to 
 be tried separately from the husband, which the court would have granted, had thfs been 
 assigned as a reason for the motion. Commonwealth v. Easland et al., 1 Mass. B. 15. 
 But quere of this ; for where they severed it was holden that one was not competent for 
 the other. The People v. Bill, 10 John. Rep. 95. It follows that the wife would not be 
 competent. For where Colbern and Elizabeth, the latter being the wife of Wier, were 
 jointly Indicted, and Colbern alone was taken and put upon his trial, the husband was 
 held incompetent for the people, because the wife was so, within the case of The People 
 V. Bill. The People v. Colbern, 1 Wheel. Cr. Cas. 479. On this decision being made, 
 the district attorney entered a noUe prosequi in her favor and oflfered her husband again, 
 but the court still rejected him as incompetent, because his testimony might still affect 
 his wife, the noUe prosequi not being final. He might disclope enough to require that the 
 court should issue a bench warrant against her. To warrant the testimony of the hus- 
 band she must first have been tried and acquitted, by the jury. Id. 481. But see State 
 V. Anthony (1 M'Cord, 385), that the wife may be a witness for one indicted jointly with 
 her husband for murder, but tried separately from him. 
 
 (Where parties jointly indicted are tried together, the wife of one of them is not a 
 competent witness for the others. The Commonwealth v. Robinson, 1 Gray (Mass.) 555. 
 But she has been held competent for the others, where her husband, jointly indicted with 
 them for an assault, has been defaulted upon his recognizance. The State v. Worthing, 
 31 Maine, 63. And where her husband has been examined _ for the state, she may be 
 called on the other side to prove that he testified under a bias against the defendant, 
 though not to contradict him. Cornelius v. The State, 7 Eng. 782. 
 
70 Iticothpetehcy against each other. [ch. IV. 
 
 *86 *-where a womftn was called, on the part of the crown, to pr<)TiB that 
 her husband, who had EtbSconded, had been present when the article 
 was stolen, and that she saw him deliver it to the prisoner, Taunton, J., 
 after cotisulting with Littledale, J.,- rejected the witness. His Lordship 
 said : " The evidence of the wife here would directly charge the husband 
 with being a principal, and although there is no prosecution pending, her 
 evidence cannot but facilitate an accusation against her husband. Now, 
 the law does riot allow the wife to give evidence against her husband, and 
 it is quite consistent with that principle that this evidence should not be" 
 received." 
 
 It may be doubted, however, whether this ruling was correct. It would 
 certainly appear not to be so upon the principles laid dowii in R. v. Bath- 
 wick (which was cited in the case) ; for if the husband were indicted for the 
 theft, the wife could not be a witness on that trial, nor cottld anything she 
 had said on the former trial be in any way adduced in evidence against 
 him. 
 
 Although a wife is not to be rejected as a witness because her evidence 
 has a tendency to criminate her husband, yet it seems she cannot be com- 
 pelled to give such evidence. (1) 
 
 In like manner a wife may be a witness in an action between third per- 
 sons not immediately affecting the interest of the husband, though her evi- 
 dence may possibly expose him to a legal demand : as, in an action between 
 third persons for goods sold and delivered, to prove that the goods had 
 been sold, not on the credit of the defendant, but on her husband's credit. (2) 
 This evidence, it may be said, was in some measure against the husband, 
 though he was not a party to the suit. On the other hand to reject her 
 evidence in such a case would be a hardship on the defendant, who may 
 have no other means of defending himself against an unjust demand : and, 
 though upon her testimony the defendant might have a verdict, and an 
 action might afterwards in consequence be brought against- the husband, 
 she would not then be admitted as a witness, nor could her evidence in the 
 first suit be produced against him. (3) 
 
 *87 * Neither party competent to prove non-access. It is settled, that 
 either a husband or a wife is incompetent, as well after as before the 
 death of the other party, to prove non-access during wedlock, that is to say, 
 the absence of the fact of sexual intercourse, or of the opportunity of sexual 
 intercourse, whatever may be the form of the legal proceeding, or whoever 
 may be parties to it. (4) This rule is established, independently of any 
 possible motives of interest in the particular case, upon principles of public 
 policy and decency. (5) Nor can either party be examined as to any colla- 
 
 It was held in one case, that in an action by the wife's trustee to recover money in trust 
 to h6r sepaiEvte use, the husband was a witness for her trustee. Richardson v. Learned, 10 
 Pick. 281. But qwre ; she was the real party. Suppose a suit by her husband's trustee ; 
 could the wife be a witness for him ?) 
 
 (1) By Bayley, J., in-B. v. All Saints, Worcester, 6 M. & S. 200. 
 
 m Williams v. Jo^inson, by King, C. J., 1 Stra. 504 ; S. C, B. N. P. 287. 
 
 (3) If the husband's interests are involved in the action, as where it is brought against 
 his trustee, the wife is not a competent witness. Edwards v. Pitts, 3 Strobh. 140. But 
 in general, where the action is between third persons, the wife is a competent witness 
 where the husband is competent ; thus, where the husband, the payee of a note, indorses 
 it over to a third party, his wife is renclored a competent witness for the holder, on his exe- 
 cuting to the husband a release from liability thereon. Bisbing v. Graham, 14 Penn. 
 State B. 14. The release renders tho husband competent (Wheaton v. Wilmarth, 13 
 Mete. 433), which also renders his wife competent. So where the wife is interested, her 
 interest must be removed before her husband can be sworn as a witness in tho cause. 
 Hough V. Patrick, 26 Vt. (3 Deane), 435. See also Barihg v. Beeder, 1 Hen. & Munf. 154. 
 
 a^ R. V. Book, 1 Wils. 340 ; R. v. Lufife, 8 East, 208 : IC^r. Kea, 11 East, 132. 
 
 (5) See by Lord Mansfield, C. J., in Goodright v. Moss, Cowp. 494. See also Copo v 
 Cope, 1 Mo. & B. 874, and B. N. P. 113 ; Bep. temp. Hardw. 83. ^ 
 
SEC. rv.] IwcompeWMy for bach other. 71 
 
 teral fact, for the purpose of proving non-access : thiis, the hlishand cannot 
 he asked -whether, at a particular time, he did not live at a distance from 
 Ms wife and cohabit with another woman. (1) Nor is the evidence of either 
 admissible to prove directly the illegitimacy of children born during mar- 
 riage; (2) although it has been said that the parents may bastardize their 
 issue by any evidehce except that of non-aeceSs. (3) Thus a wife will not 
 be permitted to prove that the children, whose legitimacy is in question, 
 are the issue of another man to whom she had been married during her firstr 
 husband's lifetime. (2) But on the other hand, a wife may prove the fact of 
 her own adultery. (4) So, in an earlier case, where the question was as.tO 
 the legitimacy of a party, his mother was called as a witness, to prove that 
 she was not married to the father of the child until after its birth. (5) 
 
 2. Husband and wife not competent for each other. Secondly, it is 
 *88 a general rule, that neither the husband nor the wife *will be allowed 
 
 f to give evidence for each other, in civil or criminal proceedings. 
 
 Where the defendant pleads coverture, the person alleged in the plea to 
 be husband is not a competent witness to prove his marriage with the 
 defendant. (6) A husband is incompetent to give evidence in support of 
 the interest of his wife, who takes a reversion in fee in the property in 
 dispute. (7) 
 
 In the case of Hawkesworh v. Showier and Boyce,(8) which was an action 
 
 (1) R. V. Stourton, (InTiabs.) 5 A. &E. 170. 
 
 The non-access 6f the husband cannot he proved by the wife, though she may testify 
 to the fact of criminal intercourse, and designate the person with whom such intercourse 
 took placfe. From motives of public decency she is not allowed to bastardize her offspring. 
 The illegitimacy of the child being shown by proper evidence, she is in certain cases per- 
 mitted, ex necessitate, to testify with whom she has had sexual intercourse, and who is 
 the father of the child. RatclifF v. Walesi 1 Hill B. 63, 65 ; The People v. Overseers of 
 Ontario, 15 Barb. 386 ; Parker v. Way, 15 N. Hamp. 45. The presumption is that a child^- 
 born during lawful .wedlock is legitimate, and this presumption must be overcome by 
 positive testimony. Wright V. Hicks, 12 Geo. 155. Proceedings in cases of bastardy arei 
 generally regulated by statute (Chapel v. White, 3 Gush. 587) ; aijd in some cases the evi- 
 dence of the mother is made presumptive proof of tfie pkternity of the child, which is to 
 be disproved by the defendant. Moody v. Goode, 10 Ired. (N. C.) 49. See, also. The 
 State V. Wilson, Id. 131. 350. 
 
 (2) B. V. Mansfield, (Inhabs.) 1. Q. B. 444. 
 
 (3) By Patterson, J., in B. v. Stourton, 5 A. & E. 186. 
 
 (4) E. V. Reading, Bep. temp. Hardw, 82 ; B. v. Bedell, Andr. 8 ; R. v. Luffe, 8 Bast, 308. 
 
 (5) Cooke V. Lloyd, Peake Ev. App. xxviii. In this case declarations of the father and 
 of the son himself were admitted to prove the bastardy of the latter. As tothis see, post, 
 Hearsay in Questions of Pedigree. 
 
 (6) Woodgate V. Potts, 2 C. & Kir. 457. 
 
 Note 44. — In tie case of Perry, tried on an indictment for a forcible marriage, the wife 
 was received as a witness for her husband to prove that the elopement and marriage were 
 voluntary. Bristol assizes, 1794; Macnally's Ev. 181 ; S. C, 3 Hawk. P. C. c. 46, § 77 
 (Curwood's ed.). This case was tried before Qibbs, C. J., when hfe was recorder of Bristol. 
 Per Abbott, C. J., in Bex. v. Serjeant, 1 By. & Mo. N. P. Rep. 354. 
 
 On an indictment for a conspiracy in inveigling a young gii-1 from her mother's house,' 
 and procuring the marriage ceremony to he recited between her and one of the defend- 
 ants while she was intoxicated, the girl was held to be a competent witness to prove the 
 facts. Eespubliea v. Hevice, 3 Yeates, 114. The court said they were not competent to i 
 determine whether there Was a real marriage ; therefore, receiving the evidence, they left 
 it to the jury, with instructions that if they found a marriage, they should disregard the) 
 testimony. S. C, 3 Wheel. Cr. Cas. 505, 506. Quere. 
 
 (7) Cornish v. Pugh, 8 D. & R. 65. 
 
 (8) 13 M. & W. 45. 
 
 (In an action brought by the husband and wife in relation to her separate estate, he is 
 not a competent witness, nor are his acts and declarations evidence against her. Stuart v. 
 Eissam, 3 Barb. 493. Nor is she a competent witness against him, where she is not a 
 party. Copous v. Kauffraan, 8 Paige, 583. Neither is the husband a competent witness 
 in favor of his wife. Hosack v. Rogers, 8 Paige, 239. But in an action between third 
 parties, she may be examined, where her husband has a collateral interest in opposition 
 to the party calling her. Tlie CilAPank v. Bangs, 3 Paige, 36.) 
 
72 Incompetency of JBksband or Wife, &c. [ch.,iv. 
 
 ■ Note 45. — The declarations (depoBitiom) of a wife in extremis, are admissible against 
 the husband, charged with her murder. Pennsylvania v. Stoops, Addis. 381. Macnally 
 says, that in the researches which he had made,' he had not discovered any trial for high 
 treason in which the wife was examined as a witness against her husband. Macnally 's 
 Ev. 181. ' ' ' ' 
 
 It is well stated that, in general, neither husband nor wife is admissible as witnesses for 
 or against each other. Corse v. Patterson, 6 Harr. & John. 153 ; Tacket v. May, 3 Dana, 
 80. per Robertson, Ch. J. ; Rigdon's Heirs v. Rigdon'g Devisees, 6 J. J. Marsh. 54 ; Sadler 
 V. Houston, 4 Porter, 308. Some cases go so far as to maintain the rule though they have 
 been divorced a nneulo. State v. PhelpS, 2 Taylor, 374. ■ But see State v. J.N. B., 1 Id. 
 86, oontra. la cases of book account, where the party is a witness, quere, whether his 
 wife may be received ^also ? Stanton v. Wilsbn, 3 Day, 37. But she is competent in a 
 prosecution against her husband, for a personal outrage to herself. State v. Boyd, 3 Hill, 
 388 ; Per Bronson, J., in The People ex rel. Ordronaux v. Cliegaray, 18 Wend. 642. 
 
 In an action by a woman as &fem6 sole, her husband is an incompetent witness to prof e 
 a marriage. Bentley v. Cooke, 3 Doug. 423. But though each supposed they were mar- 
 ried, if in fact the marriage was void, as where the wife had a former husband living, she 
 was held competent as a witness agaiiist him, even to prove conversatioi)s of her supposed 
 husband during cohabitation. Wells v.i Fletcher, 5 Carr. & Payne, 12 ; S. C. nom. W^ls 
 v. Fisjier, 1 Mood. & Rob. 99. The marriage of slaves in North Carolina is void ; there- 
 fore the husband or wife, (slaves) may be witnesses against each other, even in a capital 
 
 case. The State v. Samuel, 3 Dev. & Bat. 177. 
 *89 •. *The ca'ses, cited ante, in note 41, and the text, will be found to qualify the 
 proposition that the husband or wife are not receivable to make statements con- 
 tradictory of each other. And even the wife is receivable to show the criminality of the 
 husband, except in cases ■yvhere her evidence would influence a suit or prosecution against 
 him. See also per Park J., and Best, C. J., in Henman v. Dickenson, 3 Moore & Payne, 
 28!), 291 ;■ S. C, 5 Bing. 183; Corse v. Patterson, 6 Harr. & John 153 ; Wilmot's Lessee 
 V. Talbot, 3 Harr. & M'Henry, 2; Redman v. The State, 1 Blackf 439, 430, 431'; The 
 People ex rel. Ordronaux v. Chegaray, 18 Wend. 637; Capehart v. Adm'rs of Huey, 1 
 Hill's Ch. Rep. 409 ; Bell v. Coil, 3 Id. 110. The notion of such testimony being inadmis- 
 sible from policy seems to be pretty much given up in England, though several American 
 cases have gone on that ground. See also Poultney v. Fairhaven, Brayt. 185. These cases 
 are quite uniform that the wife shall not be received to disclose, conversations of the hus- 
 band, even though.he.be dead when she is examined. Per "Williams, J., in Edgell v. 
 Bennett, 7 Verm. Rep. 537. But the rule is confined to conversations, and does not extend 
 to distinct facts. Williams v. Baldwin, 7 Verm. Rep. 503, 506 ; Wells v. Tucker, 3 Binn. 
 866. It seems, however, that, to be admissible, the fact must be of such a nature, that it 
 cannot bs supposed the wife learned it in consequence of confidence reposed. In assumpsit 
 for board of the defendant's child,'his wife was refused as a witness against him to prove 
 his promise to pay while she was his wife, though now divorced by act of Parliament. 
 It was said that her knowledge might have been acquired in consequence of confidence 
 reposed in her by her husband. Monroe v. Twistleton, Peak. Add. Cas. 319, 221 ; and see 
 note a, at the last page, for several English cases. The reasoning of Lord Alvanley in 
 the principal case is very strong. The rule does not extend to those who have cohabited 
 as husband and wife without being married, especially after they have separated. Wells 
 v. Fletcher, 5 Carr. & Payne, 22. 
 
 It was said by Lord Mansfield, in Goodright v. Moss (Cowp. 594), that it is a rule founded 
 in decency, morality and policy, that a husband or' wife shall not be permitted to say, after 
 marriage, that they have had no connection, and therefore that the offspring is spurious ; 
 more especially the mother, who is the offending party, and that the point had been 
 Bolemuly decided at the iDelegates. See Cope v. Cope, 1 Mood. & Rob. 274. In Bull. N. 
 P. 113, a case is referred to as showing that the wife might be examined after her hus- 
 band's death, to prove the child a bastard, which is inconsistent with the principle adopted 
 by Lord Mansfield. Lord Hardwicke (Rep, temp. Hardw. 83) puts the incompetency of 
 the wife to give evidence of non-access upon the ground of interest, a ground which would 
 only apply in particular instances, as in orders of filiation. It does not appear clearly 
 how the circumstances of the wife being an offending party can affect the question. 
 
 That the wife's competency in point of interest follows bar husband's see Corse v. 
 Patterson, 6 Harr. & Johnson, 153 ; Stanton v. 'Wilson, 3 Day, 37 ; Beach v. Swift, 2 Con- 
 necticut Rep. 269 ; Wilmot's Lessee v. Talbot, 3 Harris & M'Henry, 2 ; Williams v. Baldwin 
 7 Verm. Rep. 508, 506, 507 ; Jackson v. Heath, 1 Bailey, 355, 856 ; Pyle v. Maulding, 7 j'. 
 J. Marshall, 203, 308 ; Chambers v. Spencer, 5 Waits, 404 ; Van Deusen v. Frink, 15 Pick! 
 449 ; Thomas v. Catheral, 5 Gill & John. 28 ; Cornish v. Pugh, 8 Dowl. & Ryl. 65 ; Rex v' 
 Smith, Mood Cr. Cas. 289 ; Capehart v. Adm'rs of Huey, 1 Hill's Ch. Rep. 409 ; Bell v. Coil] 
 2 Id. 110. But this rule ceases to apply after his death. It is, therefore, no objection 
 then, that he was interested during his lifetime in the fact now sought to be proved by 
 his widow. Edgell v. Bennett,- 7 Verm. Bep. 584; Caldwell v. Stewart, 2 Bail. 574- 
 ■Chambers yv. Spencer, 5 Watts, 404. ' 
 
 The wife may testify against the interest of the Ij^band in a cause between third 
 
SEC. IV.] , Incompetency of Bk^band or Wife, tJbc. 7^ 
 
 of trespass for taking t|ie plaintiff's goods under a distress for rent, 
 *90 *the case haying been clearly proved against 1;]ie defendant Boyce, 
 who was the broker employed to make the distress, the other defend- 
 ant. Showier, for the purpose of showing that he had not authorized the 
 taking of the gqods by Boyce, tendered the wife of the latter, as a witness. 
 Lord Abinger, C. B., however, before whom the cause was tried, was ot 
 opinion that she was incompetent; and the Court of Exchequer upheld this 
 decision, and refused a rule for a new trial. Lord Abinger said, upon that 
 occasion, he w^s clearly of opinion that the wife was interested ; she had an 
 interest in giving evidence, tc? fix Showier and acquit her husband, as in such 
 a case execution migjit. be taken out against Showier alone. On the other 
 hand, if Showier obtained a verdict, execution would go against her husband 
 alone ; if, therefore, she gave, evidence to acquit Showier altogether, she 
 would give evidence against her husband. 
 
 Upon a prosecution' against several persons for a conspiracy. Lord Ellen- 
 borough, 0. J., refuser^to admit the wife of pne of the defendants to be a 
 witness for the others; a joint offense being charged, and an acquittal of all 
 the other defendants being a ground of discharge for the husband.(l) 
 
 On the trial of an indictment against two prisoners for burglary, in which 
 each of them set up the defense of a distinct alibi, it was proposed, on the 
 part of one of .the prisoners, in proof of his alibi, to call the wife of the other 
 prisoner; but her evidence was rejected, on the ground that it tended to 
 show that the witness for the prosecution was mistaken as to one of the 
 pl'isoners, which would weaken the effect of that witness's testimony as to 
 the other prisoner, her husband. And it was decided, by a majority of the 
 judges, that the witness had been properly rejected. (2) 
 
 Where, however, of two or more parties indicted, one of them is not upon 
 his trial at the time when the others are being tried, the wife of the party 
 not upon his trial is admissible as a witness. Thus, in the case of the 
 King agt. Williams, (3) where another person, although a defendant on the 
 record,(4) had been tried and convicted at the previous assizes, and conse- 
 quently the only issue which the jury were bound to decide by their verdict 
 was whether Williams was or was not guilty, (4) the wife of the other 
 person was admitted to give evidence : as neither the wife nor the 
 *91 *husband was interested ; he had already been found guilty, and was to 
 suffer the same judgment whether the other defendant upon the record 
 
 persons, if he, being present, do not himself object. Jackson v. Heath, 1 Bail, 355 ; 
 Pedley v. Welleslej, 3 Carr. & Payne, 558. She cannot be a witness for the defendant in 
 a suit against her husband's surety, without a proper release from the surety to the hus- 
 band. Thomas v. Catheral, 5 Gill. & John. 23. The husband being the beneficial, though 
 not the nominal plaintiff, his wife is not an admissible witness for him. Pyle v. Maulding, 
 7 J. J. Marsh. 303. Nor is the husband a witness for the wife's trustee in an action 
 (trover) by him for her use. Hopkins v. Smith, 7 J. J. Marsh. 263. 
 
 * * And see State v. Phelps, 2 Tyler's R. 374 ; Ratclifif v. Wales, 1 Hill R. 63 ; and 
 Barnes v. Comack, 1 Barbour's Supr. C. R. 392. In the case last cited, Barculo, J., lays 
 down the rule that " the testimony of the wife can never be received against her husliand, 
 except in proceedings instituted against him on her behalf. This rule holds not only 
 during the coverture, but also continues to apply after a dissolution of the marriage con- 
 tract, as regards transactions whic^l took place previous to such dissolution. * The only 
 safe and correct practice is, to adhere to the rule, that whatever passes between husband 
 and wife in confidence shall forevei remain sacred." In this case, the wife, who had been 
 divorced, a mnculo, for the adultery of her kusband, had been examined as a witness 
 against the husband as to a transaction which occurred during the marriage, and her 
 testimony was suppressed. * * (Lucas v. State, 23 Conn. 18 ; Smith t. Potter, 1 Wms. 
 Vt. 304.) 
 
 (1) R. V. Locker and others, 5 Esp. 107 ; R. v. Frederick and another, 2 Str. 1094, S. P. 
 
 (2) R. V. Smith and another. Moo. C. C. 289. 
 
 (3) 8 C. & P. 284, cit. by Alderson B., 12 M. & W. 49. 
 
 (4) From the report of the case, it does not appear that the hnsband was jointly 
 indicted with the .defendant, tWilliama; indeed the' contrary would rather appear; but 
 Bee by Aldereon, B., tit supra. 
 
 Vol. L 10 
 
74 Xiette^s, Admissions, i&b. of Wife of Party. [ch. li: 
 
 was found guilty or ndt. So, in the case of the King agt.Thurtell, where 
 Prbbert was admitted a witness for the crown, the wife of Pro'hert was also 
 allowed to be a witness, because her husband could not be at all affected by 
 her evidence. In the same Hianner, if Probert had not been apprehended, 
 and Thurtell only had been on trial at the time, it seems that the Vife would 
 have been capable of bfeing examined, as the question would have been, 
 whether Thurtell was guilty, aiid iiot whether Thurtell and Probert were 
 guilty. (1) 
 
 In the case of the Queen agt. Sill and others, (2) however, tried before 
 Tindal, C. J., where A. and B. were indicted for burglary and stealing, and 
 evidence was given to sho* that a' part of the stolen propferty was found in 
 the house of each of the prisoners, it was propo'sfed to Call the t^ift of A. as 
 a witness for B., to prove that she brought to B.'s housfe that part of the 
 stolen property that was found there ; and his Lordship said, h6 thought she 
 was a competent witness for that purpose. 
 
 It may be questioned whether this point was suifeciently considered. If 
 the witness was competent at all, she might have sworn that she also took 
 to her husband's house the stolen -ptopeiij that'Was found there, having 
 received it from a third party. It may be doubted, also, whether the very 
 fact which she was called to ptove, might not infbrentially be evidence 
 against her husband. It seems indeed to be a hardship upon the prisoner 
 B., if the fact was in truth as suggested, that by a technical rule h* should 
 be debarred from calling the only witness who could establish his innocence^; 
 but the hardship would haVe beeh the same supposing A, himself had taken 
 the goods to B.'s house. Perhaps the dilBculty might have been got over 
 by taking a separate verdict aga&st A., supposing the evidence wovild have 
 Warranted such a course. 
 
 In a late case before the master of the l-olls,(3) it was held that a husband 
 could not be examined as a witness against his wife in a suit affecting her 
 separate estate, although there were other defendants in respect of whom he 
 would be competent. 
 
 It has been seen that, in general, letters written by the husband to the 
 wife are not evidence for the husband, though letters written by the hus- 
 band to the wife may be evidence against him. (4) 
 
 Action for orim. con. In an action for criminal conversation with the 
 plaintiff's wife, the wife's letters to the defendant are not evidence 
 *92 ibr the defendant against *the husband, nor is her confession evi- 
 dence for the husband against the defendant ; but conversations 
 between her and the defendant are evidence against him. (5) Evidence of 
 the manner in which the husband and wife used to live together, before her 
 connection with the defendant, is clearly admissible for the purpose either 
 of increasing or diminishing the damages ; and upon this principle it has 
 been determined, that where the husband and wife have lived apart from 
 each other, the letters of the wife to her husband, written before any sus- 
 picion of criminal intercourse, are admissible in evidence, as showing their 
 demeandr and conduct to each other, and whether they were living on terms 
 of mu^al affection ; but, on account of the obvious danger of collusion, it 
 ought to, be strictly proved, that the letters, which are offered in evidence, 
 were written at a time when the wife was not suspected of misconduct. (6) 
 
 (1) By Alderson, B., ut supra. 
 
 h) 1 C. k Kir, 494. 
 
 (5) Langley v. Fisher, 5 Beav. 443. 
 
 (4) Supra, p. 81. 
 
 (5) B. N. P. 28; Winsmoro v. Greehbank, Willes, B77. 
 
 (6) Edwards v. Cifock, 4 Est). 39 ; Ttelawney V. Coleman, 1 B. & A. 80 ; S. C, 3 Stark. 
 B. 191. 
 
SEC. IV.] AdinUsiohi of 'Wife cts Agent. 75 
 
 ' Ad'thiisiofhs of ihife dcting as affeVit for Mtshand. The rule in ques- 
 tion has no application: to cases where the teiffe has acted for the husband 
 in his business, and by his authority and consent.; hfe thereby adopts her 
 acts, and will be bound by any admission oi acknowledgtnent madfe by 
 her respecting that business ; the wift in such cases being considered his 
 agent. Thus, where the wife has made a contfact for her husband, which 
 has been adopted by him, her acknowledgn^ht as to the amount of the 
 money due will be evidence againt him. (1) in an action by a servant for 
 wages,(2) the plaintiff was allowed to give in evidence a deed executed by, 
 the wife of the defendant at the time of the hiring, which, though void as a 
 deed, was admitted in order to show the terms of the contract. And in an 
 
 action for goods sold and delivered at the defendant's shop, (3) an 
 *93 offer by the wife to settle the diemand was *adniitted in evidence, as 
 
 she used to serve in the shop, and was in the ha;bit of transacting the 
 business in his absence. Upon the same pririciple, the wife's acinowledg- 
 ment, as to a debt being due for goods furnished with her husband's consent 
 for her accommodation, or for goods purchased by her for the husband and 
 used by him, has been held sufficient to take the case out of the Statute of 
 Limitations. (4) In an action against a police oflBcer,(5) to recover money 
 which he had taken from the plamtiff's wife on suspicion of her having got 
 it unlawfully, Lord Ellenborough, C. J.,, admitted the account given by her 
 respecting the money on her examination before a magistrate, to be given 
 in evidence on behalf of the defendant: "The money," said Lord Ellen- 
 borough, "appears never to have been in the husband's possession, and, 
 as the wife had the exclusive custody and management of it, he must be 
 bound by what she said concerning it." 
 
 Such statements and admissions are receivable in the same manner as 
 declarations or admissions made by any other agent with reference to a 
 transaction which is within the scope of his authority. (6) There is, how- 
 ever, this difference, that in the latter case, where the agent is living he 
 may be called as a witness, although it is not necessary that he should be 
 so called ; whereas we have seen, the wife can in no such case be called. 
 
 (1) Emerson v. Blonden, 1 Esp. 143 ; 1 Str. 537 ; B. N. P. 387 ; Anderson v. Saun^rson, 
 Holt N. P. C. 591. 
 (3) White V. Cuyler, 6 T. R. 176. 
 
 (3) Clifford v. Burton, 1 Bing. 199. 
 
 Where the wife acts as agent for her husband, her acts, declarations and admissions are 
 evidence against her husband, like those of any other agent. Fenner v. Lewis, 10 John. 
 K. 38 ; Riley v. Suydam, 4 Barb. 333 ; Williamson v. Morton, 3 Md. Ch. Decis. 94. 
 
 Note 46. — The declarations of the vi'ife, who managed her husband's business as tavern 
 keeper, he being incapable of managing his affairs through insanity, were received in an 
 action on a bill for boarding the defendant's intestate, to show payment ; on the authority 
 of Str. 537. Hughes' Adm'rs v. Stokes' Adm'rs, 1 HayW. 373. So it would be of her 
 admissions in her course of agency in any particular transaction. Curtis v. Ingham, 3 
 Verm, Eep. 389. 
 
 In an action of debt, the question was put to the jury on contradictory testimony of 
 agency in tbe plaintiff's wife, whether a considerable payment to her should be credited 
 to the defendant ; and the court remarked to the jury that " There are many occasions 
 on which a wife, as agent for the husband, appears as the principal. The cares of matri- 
 mony, the duties of management are divided ; the. husband assumes some parts, and 
 submits other parts to the care of the wife. Where he either acts or submits, he is hound. 
 A husband is often from home. Nothing is more common than to pay the wife, in his 
 absence, a debt due to the husband. That is for the convenience of both parties, and 
 seems to be considered an implied agency. If the defendant made this payment in the 
 usual way, it seems proper to consider it as a payment to the husband on a presumed 
 agency, with which, in their common concerns, every wife is presumed vested. Spencer 
 V. Tisue, Addis. Rep. 31G, 319. See the text and notes, post, on tlie admissions of an agent 
 generally 
 
 (4) Gregory v. Parker, 1 Campb. 394 ; Palethorp v. Furnish, 2 Esp. 511, n. ; Anderson 
 V. Sauiiderson, Holt N. P. C. 591 ; S. C, 3 Stark. R. 304. And see W Yes. 159. 
 
 (5) Carey v. Adkins, 4 Campb. 94. 
 
 (6) See pott. 
 
76 JEkoeptions to the GeneraZBule, [ch. iv. 
 
 In O'Connor v. Majoribanks,(l) the widow was not admissible to prove the 
 fact of her agency ; but if that fkct had been shown aliunde, any admis- 
 sions made by her in that character would have been receivable in evidence. 
 
 The agency of the wife, as that of any other agent, may be inferred from 
 circumstances. Some facts must be shown, however, from which the wife's 
 agency may be inferred with, reference to the particular transaction to which 
 the admission relates. Thi:j^ where it was proved, upon the trial of an 
 action of replevin, (2) that th^touse in respect whereof rent was claimed by 
 the defendant was occupied by the plaintiff's wife, who carried on a trade 
 therein, and it was admitted that, the husband being generally absent, she 
 carried on the business by his authority, and attended to all the receipts 
 and payments relating thereto, it was held that a statement made by her 
 to the landlord, that she would pay the rent of the shop, admitting 
 *94 its amount, on a future day, was not evidence against the *husband 
 of the terms of the tenancy, the wife not being shown to be the 
 agent of her husband with respect to the payment of rent. 
 
 In an action for goods sold, (3) in order to show that the defendant was 
 not liable, a witness cannot be asked whether the plaintiff's wife had said 
 anything to him as to the person whom her husband had trusted for the 
 goods, and to whom he looked for payment. 
 
 There are also several exceptions to the general rule upon this subject, 
 where, from the natu.re of the inquiry, the information to be expected is 
 peculiarly within the knowledge of the husband or wife, and where to 
 exclude such evidencS' would occasion insecurity to that relation of society, 
 which it is the object of the rule to protect. 
 
 In cases of personal injuries. In all cases of personal injuries committed 
 by the husband or wife against each other, the injured party is an admissible 
 witness against the other. (4) The evidence is admissible in such cases upon 
 the principle of necessity ; not a general necessity, as where no other witness 
 could be had, but a particular necessity, as where, for instance, the injured 
 party might be otherwise exposed without remedy to personal injury. (5) 
 
 Thus a wife may be a witness on the prosecution of her husband for 
 aiding in a rape committed on her person by another man; (6) or upon a 
 charge against her husband for committing an unnatural offense upon 
 her. (7) And on a prosecution against a man for beating his wife, she is 
 allowed to give evidence. (8) 
 
 On the trial of an indictment against a man for shooting at his wife, (9) 
 the evidence of the wife was ruled by Garrow, B., after consulting with 
 Holroyd, J., to be admissible against the husband ; but Holroyd, J., thought 
 that the wife could only be permitted to prove such facts as could not be 
 proved by any other witness. 
 
 Although the wife is admissible in all such cases, she is not an indispen- 
 sable witness. (10) 
 
 A wife is permitted to exhibit articles of the peace against her husband : (1 1) 
 
 (1) 4 M. & G. 435 ; Ante, p. 78, 79. 
 
 (2^ Meredith v. Footmer, 11 M. & W. 203. 
 
 (3) Duckworth v. Johnson, 1 C. & Kir. 584. See further as to cases where the declara- 
 tions of the wife are admissible on behalf of the husband as being part of the res gestm, 
 post. 
 
 (4) E. T. Jagger, 1 Bast P. C. 455, by BuUer, J. See also by Hullock, B., in Wakefield's 
 Case, Murray. 257. 
 
 (5) By Lord Mansfield, C. J., in Bentley v. Cooke, 8 Doug. 424. 
 
 (6) Lord Audley's Case, 3 How. St. Tr. 418. See also Hutton, 116 ; 1 Hale P. C. 301 ; 
 Eep. temp. Hardw. 83 ; B. N. P. 287. 
 
 (7) R. V. Jellyman, 8 C. & P. 604. 
 
 (%\ E. V. Azire, 1 Str. 683 ; B. N. P. 287 ; R. v. Jagger, 1 East P. C. 454. 
 
 (9) WhitehoUae'B Case, 2 Russ. C. & M. 984, (8d edj See also B. v. Jagger, ut supra. 
 
 (10) R. V. Pearce, " " " 
 
 (11) B. N. P. 287. 
 
SEC. rv.] As to the Husband or Wife of a Party. 11 
 
 ' and the jiourt will not receive affidavits on the part of the'^defendant 
 
 *95 to contradict the truth of the articles exhibited against him, and "'pre- 
 vent his giving surety. (1) So an affidavit of a married woman has 
 been admitted to be read, on an application to the Court of King's Bench 
 for an information against her husband, for an attempt to take her away 
 by force after articles of separation : (2) and it would be strange, said Buller, 
 J., to permit her to be a witness to ground a prosecution, and not afterwards 
 to be a witness at the trial. (3) 
 
 On the trial of a man for the murder of his wife, her dying declarations 
 are evidence against him. (4) 
 
 Bpeaial cases. By the Bankrupt Act, (5) commissioners in bankruptcy are 
 empowered to examine the wife of the bankrupt for the discovery of his 
 estate. A similar power had been given by the 21 Jac. I, c. 19. Before 
 that statute, the commissioners could not examine the bankrupt's wife. (6) 
 
 Upon an appeal against an order of bastardy, Ci!) in the case of a married 
 woman, Lord Hardwicke and the other judges held that she was a com- 
 petent witness to prove her criminal connection with the appellant, though 
 her husband was interested both in the question and in the event of the 
 appeal ; because such a fact, so secret in its nature, can scarce ever be 
 proved by other evidence. And by a parity of reason, Lord Ellenborough, 
 C. J., said, (8) if she be admitted, as a witness of necessity, to speak to the 
 fact of the adulterous intercourse, it might also perhaps be competent for 
 her to prove that the adulterer alone had that- sort of intercourse 
 *96 with her *by which a child might be produced within the limits of 
 time which nature allows for parturition. 
 
 On an appeal against the removal of a woman, as the widow of A. B., 
 deceased, prima fade evidence of the marriage having been produced on 
 the part of the respondents, the Court of King's Bench determined, that the 
 woman was a competent witness, on the part of the appellants, to disprove' 
 the marriage. (9) 
 
 It may be remarked here, that in proceedings before justices under the 
 Vagrant Act, (10) against a husband for neglecting to support, or deserting 
 
 (1) Lord Vane's Case, 2 Str. 1203, more fully stated from Ford's MS. in 13 East, 171, 
 n. a ; S. P., R. v. Dolierty, lb. 
 
 (3) Lady Lawley's Case, B. N. P. 386 ; Mary Mead's Case, 1 Burr. 548. 
 (8) B.N. P. 387, 
 
 (4) Woodcock's Case, 1 Leach Cr. C. 500 ; John's Case, 1 Bast P. C. 357. 
 h) 6 Geo. IV., c. 16, § 37. See also 8 & 9 Vict. c. 48, § 1. 
 
 (6) Anou., 1 Brownl. 47. 
 
 (7) R. v. Beading, Rep. temp. Hardw. 83 ; R. v. Bedell, Andr. 8 ; Gilb. Ev. 139 : Cope v. 
 Cope, 1 Mo. & Rob. 373, n. 
 
 (8) In R. V. Luffe, 8 East, 303. 
 
 Note 47. — On similar principles, upon the trial of an indictment for fornication and 
 bastardy with a married woman, she was held competent to prove the criminal connec- 
 tion. Commonwealth v. Wentz, 1 Ashm. Rep. 369, and the cases cited infra from Browne 
 and Binney. But not to prove the non-access of her husband. Commonwealth v. Miller, 
 cited 1 Browne, App. Hi; Commonwealth v. Strieker, 1 Browne, App. xlvii- Common- 
 wealth v. Connelly, 1 Browne, 384 ; Commonwealth v. Shepherd, 6 Bin. 283 ; The King 
 V. M'Lean, cited 6 Bin. 290. But if the court permit her to be asked a question, from the 
 answer to which non-access may be inferred, as "how long it was since she last saw her 
 husband," and afterwards direct the jury that they are not to consider anything which 
 fell from her as evidence of non-access, and there is strong evidence of non-access from, 
 other witnesses, the verdict will not be disturbed. Commonwer.lth v. Shepherd, 6 Bin. 
 383. (The mother, in such cases, cannot testify to the absence, non-access of the husband,, 
 nor to any other fact capable of proof by other evidence. The People v. Ontario, 15 Barb. 
 386 ; Parker v. Way, 15 N. Hamp. 45. There is, as we have seen, a presumption in favor- 
 of a child born during lawful wedlock, that it is legitimate. Wright v. Hicks, 13 Geo.. 
 155. See also Chapel v. White, 8 Cush. 537 ; and Moody v. Goode, 10 Ired. 49 ; and Thft 
 State V. Wilson, Id. 131. 350.) 
 
 (9) R. V. Bramley, 6 T. R. 330 ; S. P., R. v. St. Peter's, Burr. Sett. Cas. 35. 
 
 (10) 5 Geo. IV., c. 83. See sect. 3 and 4. 
 
78 Of the Ti'Ti}? of Objecting to CQmpetencj/. [ch. y. 
 
 his ■wife and family, it is believe^ to be the uniyersal prjietice, as also at 
 sessions in the case of an appeal, to adpiit the wife as a'witness. This 
 practice is presumed to have arisen from the necessity of the case, for 
 ai,lthoiigh instances frequently may apii must arise where all the f^cts neces? 
 sary to insure a conviction might be proved by other -(vitniesses, yet it must 
 often happen that some of the circumstances, such as the husband s ability to 
 support his family^ or the act fif desertion, could be prpved only by the wife. 
 
 On an indictment for a second marriage during the continuance of a 
 former marriage, thpugh the woman first married by him cannot be a wit- 
 ness, (1) yet, after proof of the first marriage, the second wom&n he married 
 may be a witness, (2} not being legally the wife of the prisoner. After 
 such proof, she would be competent to give evidence for as well as against 
 the prisoner. (3) 
 
 Upon the same principle, on a prosecution for forcible abduction and 
 marriage of a woman, she is a competent witness against (4) or for the 
 prisoner; (5) as she is not legally his wife. (4) And the better opinion seems 
 to be, that the rule is the sanie, though the woman afterwards voluntarily 
 cohabits with the prisoner. (6) 
 
 The exception as to the admissibility of the wife is confined to cases 
 
 *97 of ''^personal injuries effected by violence or coercion. Therefore, 
 
 upon an indictment for a conspiracy in procuring a young female 
 
 who was a ward in chancery, to marry, she is not admissible either for or 
 
 against the husband. (7) 
 
 The restrictions upon the admissibility of the evidence of parties to the 
 suit and of their wives, which it has been seen are relaxed in the case of 
 defendants in equity, have been entirely removed by the recent statute 
 establishing the courts for the recovery of small debts, (8) with regard to all 
 actions brought in those courts ; the 83 d section of that statute enacting, 
 that "on the hearing or trial of any action, or on any other proceeding 
 under this act, the parties thereto, their wives and all other persons, may be 
 examined either on behalf of the plaintiff or defendant." (9) 
 
 CHAPTER V. 
 
 OP THE TIME OP OBJECTING TO THE ADMISSIBILITY OP A WITNESS. 
 
 It remains now to consider what is the regular time for making an objec- 
 tion to the admissibility of a witness ; for though the grounds of incom- 
 
 (1) Mary Grigg's Case, Sir T. Haym. 1 ; Hawk. b. 2, c. 46, § 71. 
 
 (2) 1 Hale P. C. 393 ; B. N. P. 287 ; 1 East P. C. 469. 
 
 (3) See 1 By. & Mo. 354. 
 
 In prosecutions for bigamy, the marriage must be alleged and proved distinctly (The 
 State Y. Bray, 13 Ire4. 298'; f he People V. Humphrey, 7 John. E. 214) ; and it is necessary 
 to allege directly the tinjp aijd place of the first marriage. The State v. La Bore, 26 Vt. 
 (8 Deans), 765. The confessions of the defendajit and proof of cohabitation and repu- 
 tation aie not enough to establish the fact of marriage on an indictment for bigamy. 
 Oaha^an v. The People, 1 Parker C. If. S'TS. Where one of the parties are under the age 
 of consent at tl}e time of the marriage, jind tl^e marriage is not confirmed by cohabitation 
 after coming to full age, neither of them is liable in Ohio to prosecution for bigamy. 
 Shaf her vTrhe State, 20 Ohio, 1. ^ 
 
 (4) (Jilb. Ev.136 : 1 Hale P. C. 301 ; 2 Hawk. P. C. c. 46, § 78 ; B. N. P. 286. 
 (■5) R. y. Perry, cited by A^Dbott, C. J., in R. v. Serjeant, Ry. & Mo. 354. 
 
 (6) By Hullock, B!, ia Wakeflelcl's Case, Murray, 257 \ S; C., 3 Lewin, 1, 379. See also 
 4 Bl. Com. 309 ; 1 East P. C. c. 11, § 5 ; Hawk. P. C. c. 41, § 13 ; S^vlnden's Case, 4 How. 
 St. Tr. {!75. Gontm, T Hale P. C. 303 ; Respublica v. Hevice, 2 Ypates, 114. 
 
 (7) E. V. Locker, 5 Esp. 107 ; il.V. Serjeant, By. & Mo. S54.' 
 
 (8) 9 & 10 Vict. c. 95. ' ' 
 
 _ (9) See also H & 13 Vipt. c. 43, § 15, mpra,, as to the adjuissibility of complainants befQre 
 justices. See also, Introductory chapter. 
 
CH. V.J 19/ the Time c^ O^Jepti^ff tp Oempeteney. 79 
 
 petency h^ye bepp vprjr much reduc.^^ in nwfjfl^'f f p7 t^^ operation of l 
 Denman^ Act, sjtijl the mpde pi" nja,kiiig the ohjeetipp in C9.ses which 
 
 Lprd 
 
 may 
 
 occur, reji^ains the same. 
 
 Before proceeding tp the c^^es on this sul^ject, it may be couveni]Bnt first 
 to poliiee ouje ia which tjj,^ objection to the adfliissibility of a T^tness is of a 
 merely technipal; natu^^. An objection" to a witness, oi^ the ground of hip 
 misdescription in the list of y^itnesses, which is require^ previously to a trial 
 for high treason, must be t9,k^n iii the flrgt instance; and itf is too late tp 
 tajie such objectipii 9,fter tiie wit jips,s has begi^ examined in ehief.(l) This is 
 an objection merely formal a^^ tephnical, apd should be taken, if at all, at 
 the s|irictly regular time. 
 
 Witness to be examined, on voir dire before he is sworn. The strict and 
 regular method of raisjhg an objection to the competency of a witness, is by 
 examining him on the ■^o^V dire;{2). that is. he should be'swprn tp answer all 
 
 such questions as the" court shall demand of him, (3) the inquiry as to 
 *98 the competency of a witness being conducted, as has *already been 
 
 shown, (4) by the judge,' and what'the witness states on such exami- 
 nation not being evidence in the cause to be laid before the jury. And in 
 strictness, also, this examination, being of q, preljminafy nature, ought to be 
 taken before t)je witpes? is examined, or even s'Vforn in, chief. And this was 
 the rule formerly. (^) 
 
 (1) R. V. Watsofl, 3. Stark. K. 138; S. C, 33 How. St. Tr. See g. v. Frost, 9 C. & P. 165, 
 183. 
 
 (2) Veritatem dicere : Vrai dire. 
 
 (3) See by Rolfe, B., 11 M. & W. 689. 
 
 (4) Siipra, p. 3. 
 
 (5) See 1 T. E. 717. See alpq D?;ntc(oey y. Palmer, 4 M. & W. 664. 
 
 The party 4»t^eii(iing to c)|)jec{ to tlie cpropetency of a, witne?p may either intaodac^ 
 proof shpwjng that he is inpompetent, or have Wm sworn upon tlie voir dire, an^ take 
 his evidence in relation to the questioi;! of competency, Afld it rests upon, the party 
 objecting tq prove the incompetency of the wit^es^ (The, State v. ]E[ollpwq,y, 8 Blackf. 45) ; 
 and he must point out to flie court the ground of his incpmpeteijcy. White Water Valley 
 C^nal Co. V. Dow, 1 Smith, 63 ; ^ach v. Kelspy, 7 Barb. 466. 
 
 If the p£|.rty pbjectipg.tp the competency of a witness chooses to have him sworn on the 
 voir dire, ^.nd examines hip. he cannot afterwards intrpducp o|iier eyidepce to establisl^ 
 his incompetency; so held whpre the witpess was objected to oji ijie grpund of interest. 
 Le Barron v. Redman. 30 Maine (17'Shep.), 536 ; S:tewart v. Lake, 33 Maine R. 87 ;'(3or4PB 
 V. Bowen, 16 Penn. State R. 336. 5;nQwi^g that the witness is incompetent, the party- 
 entitled to object must do eo promptly. Bangher v. Duphern, ^ Gill, 314. If it appear 
 that the party entitled to pia|ie the objection knew or ought to have known that the 
 witness was incompetent, a.nd he cj-os^examines tlje witness befpre raising thp phj,eqtion, 
 this will be deemed a waiver of the, incompetency. Liston v. Hardy, 7 Eng. \jaw. &. Eq. 
 R. 204. But when he does not know, and has no means of knowing pr supposing the 
 witness to be incompetent, hp may take the objection and h;|ve the testinipny strick,en 
 out, if it appeajTat any time during the examination of the witness thg.thje is incqmpetenti 
 JacpBs-^. Laybpm, 11 Mees. & Welsh. 685.- ' 
 
 Having reason to believe the witness incompetent, the regular course \a to take the 
 objection at the earliest opportunity ; and though the (^eption ipay ill othe^ qapes he 
 made at any time, as soon as the incompetency appears on the exfimin^'tion, the party 
 against whom the witness is called \s9 the right to require him to. lie swpm on bis -?(>«• 
 dire, preliminary to the general oa,th, Seeley v. EngelJ, 3 ^efnan R. 548. ' And'nptvith- 
 ptanding the objection to the competency of the wi|tne^s is iiMiAe and overruled befp^.he 
 is sworn in chief, his testihiony itil,! be exijlfi^edPi; gt^ric^genif*?^ 'T^S casp, if it ftppestf on 
 his cross-examination that he is incompetent! Lester v. McDoweir, 18 Penn. St^te B- SI. 
 Gontroi, Dewdney v. Palmer, 4 M. & W. 66|4, since overruled- And it appears tp be npw 
 held in Eaglivnd that t)ie incoinpetency may be shown ^y px^Miination pf the witness ip 
 the first ins!9.n'ce, or by other and independent evidence, or in lJPt|i o( wPPfi Vw^- H M- 
 & W' 693. , ' ' ■'■■",■ 
 
 There are many o^es of incompetency fln^pr tUp oontm^n-lftW , i;ij|lp^ p^ p;p4sflpe ip 
 which the witpess may Ije gendered coinpetej^t ; ofl whiere h^s inepUig^ten^'S' Wf? W? ^^ 
 his interest in the event of the, suit, yhjch iji^;^ be released. In tnesp cageif, j'f toe piijeci- 
 tion be not made ia iime, it, | is ^eemett to Jia^ei heein WAiyeji- CRiUfe? '"• B^teinWn IQ 
 Barb. 573. 
 
80 Of the Tithe of Oljeoting to Competency. \pn. t. 
 
 *99 *But this strict . and , ancient practice has 1)6611 much modified; as 
 appears hy authorities which can bfe traced back in our Law Reports 
 beyond the last century.. There is. no doubt but that so far back'as that 
 period our ablest judges have allowed such' .objections to be freely taken, 
 after the witness has been sw6rn, and after his examination in chief, m cases 
 where the adverse party was not previously aware of the incompetency of 
 the witness.. And in such cases, if this course wei-fe not permitted, it is 
 obvious that tlie rule,s as to the inoonlpettocy of witnesses might be entirely 
 , evaded ; as it might turn out 'upon the cross-examination of a witness, that 
 he was in truth the party to the caused of, in the words' of Lord Denman's 
 Act, the person in whose immediate and individual behalf the action was 
 brought or defended. , 
 
 The practice, therefore, may now be considered as fully; established 
 (notwithstanding what has been said, by a high authority as to its irregu- 
 larity), (1) that the objection to the competency- of, a witness may be raised 
 after the witness has been examined in chief, (2) and this appears always to 
 have been the rule in eqjijity,(3) where there is no examination upon the 
 voir dir6.{^) ! ; , 
 
 Formal exanrtinatioii on voir dire nJot necessary: And. although the 
 examination of- the witness in the cause may be stopped at any tinie, in 
 order that he may be sworn upon the voir dire and examinefl By the judge 
 as to his competency ; (5) yet this formal proceeding is not necessary, and if 
 it should appear, while the witness is still under examination, that he is 
 incompetent, the objection may be taken, and the judge will strike out his 
 evidence from his notes. (6.) 
 
 When one party attfempts to prove the execution of a contract/without calling the 
 attesting witness, the opposite party must object to the competency of the proof at the 
 first opportunity. If thfi contract be proved on a commission, no objection being made, it 
 is too late to make the objection at the trial. Ward v. Whitney, 3 Sand. R. 403. If the 
 testimony of a co-defendant ia offered oh behalf of the other defendant, he should be 
 sworn ; because the ^relevancy or competency of the evidence proposed to be given by him 
 must be determined when it is offered. So held under the Code of 1851, in Eno v. Del 
 Vecchio and Snyder, 4 Duer R. 53. Each defendant is a competent witness for his 
 co-defendant, in an action of tort, under section 397, as amended in that yeat. Beal v. 
 Ftnch, 1 Kernan R. 138. And under the Code of New York as amended in 1857, the 
 partips to the action are competent witnesses. 
 
 Where a, release is handed to the witness, and he is permitted to testify without objec- 
 tion to its sufficiency, the opposite party is presumed to have waived any objection 
 founded on the insufficiency of the relejise. Bullen v. Arnold, 31 Maine R. 583. If inter- 
 ested in the event of the suit, lie is incompetent to testify ia respect to a fact which does 
 not affect his interest. Gerrish v. Cummings, 4 Cush. 391. 
 
 (1) See by Parke, B., 10 M. & W. 145. 
 
 (2) Needham v. Smith, A. D. 1704 ; by Lord Keeper King, assisted by Holt, C. J., and 
 Powell, J. ; Lord Lovat's Case, 18 How. St. Tr. 596 ; Jacobs v. Layborn, 11 M. & Wa685. 
 
 (3) Needham v. Smith, ut tupra; Vaughan v. Wbrrall, 2 Madd. 323; Selway v. Chap- 
 pell, 12 Sim. 113. 
 
 (4) By Lord Abinger, C. B., 11 M. & W. 691. 
 
 (5) By Rolfe, B., 11 M. & W. 688. 
 
 (6) Tarner v. Pearte, 1 T. R. 730 ; Stone v. Blackburne, 1 Esp. 37 ; Howell v. Locke, 2 
 Campb. 14. And see by Lord Abinger, C. B., 11 M. & W. 690. 
 
 Note 48.— (The decisions in respSct to the mode of proving the incompetency of the 
 ■witness, on the ground of interest, remain valuable illustrations of the doctrine stated in 
 the text.) 
 
 ■ Fisher V. Willard, 18 Mass. Rep. 379, 381; Bank of North America v. Wickoff, 2 
 Teates, 39 ; Evans v. Katon, 1 Pet. C. C. Rep,, 333. Objections to the competencir of p, 
 witness, whose deposition is taken under the 80th section of the United Sthtes Judiciary- 
 Act, should be made at the time of tt^king the deposition, if the party attend and cross- 
 examine, and the facts constituting the incompetency be known to him at the time of the 
 examination, in order that the objections taay be removed by release or otherwise ; and 
 'v. "S' ^^^^ made, the, party will be presumed to have intended to waive them. But if 
 the facts were then iinknown to him, the objection maybe made at the time of read- 
 ing the deposition. United States v. One case of hair pencils, 1 Paine's Rep. 400. 
 
CH. T.] Of the Time of Objecting to Competency. 81 
 
 100* But in Massachusetts the objection need not be taken till the trial in any *oaBe. 
 Talbot V. Clark, 8 Pick. 51. Ordinarily, at whatever stage of the cause the witness 
 is discovered to be interested, in law or equity, his testimony must be rejected (Swift v. 
 Dean, 6 John. Rep. 523 ; Fisher v. Willard, 13 Mass. Eep. 379) ; and the admissibility of 
 evidence, if not objected to, at the trial, cannot be questioned on a motion for a new trial. 
 Jackson ex dem. Dps v. Jackson, 5 Cowen's Rep. 173. Otherwise, if the incompetency of 
 the witness was not known at the trial. Niles v. Brackett, 15 Mass. Rep. 378. 
 
 It is a good test of competency, where the witness is examined as to interest, in any 
 stage of the cause, to suppose him examined on his voir dire, and see how the matter 
 would then stand. This examination on the voir di/re is a mode often omitted, yet well 
 to adhere to. Thus, in trover against a servant, the defense was, that he got the article of 
 the plaintiff for his master, to be returned if not approved, or otherwise, purchased and 
 paid for. On the master being introduced for the defense, to prove the authority, 
 and that he had kept it, the objection was made by the plaintiff, that he was interested, 
 as the verdict might subject him to claim over by his servant. He was admitted, and 
 proved tlie authority, and keeping of the article by himself, though it was never 
 purchased. Parke, J., suggests that the whole was to be taken as if the witness had 
 deposed on his voir dire ; in which view his interest would appear to be balanced i. «., if 
 the servant was subjected, he might be liable over on the ground of a supposed fraud 
 in the message, or if the defense succeeded, then he would \b liable to the plaintiff. 
 Qrylls V. Davies, 3 Barnw. & Adolph. 129. 
 
 The objection on account of interest in chancery, should be made as soon as the 
 interest is discovered. If known while before the examiner, it should be made there ; 
 if not appearing there by pleadings, testimony, or otherwise, it may be made whenever 
 it shall appear, or be first known. Rogers v. Dibble, 3 Paige, 238. If not made the first 
 opportunity, it is waived; for the party should have a chance to release or otherwise 
 avoid the objection. Id. The objection may be made at the commencement of the 
 examination, and afterwards established by other evidenpe. Id. A cross-examination 
 does not waive the objection, where it is made as soon as the interest is discovered, 
 though such cross-examimtion be had after the examiner overrules the objection, or 
 reser»es the question, or the party calling the witness insists on proceeding against the 
 decision of the examiner. Id. A motion may still be made to suppress the deposition, 
 or the testimony may be objected to at the hearing. Id. And see Harrison v. Courtauld, 
 Buss & Mylne, 438 ;. and Swift v. Dean, cited supra. 
 
 Where the interest of the witness is releaseable, and the party knowing of his interest, 
 raises no objection till the proofs are closed, it is then too late to object. Town. v. 
 Needham, 3 Paige, 553. 
 
 In Vermont, it was held that an objection before auditors against the bail being a 
 witness, which was a fact appearing upon the record of the court, though it was not 
 verified any way to the auditors, was well made ; and on the coming in of the report, 
 this should have been rejected by the court for that reason. The witness on his i)oir dire 
 had forgotten it. M'Connell v. Pike, 8 Verm. Rep. 505. 
 
 A witness is said to be examined on a voir dire when he is sworn and examined, 
 whether he be not a party interested in the cause, as well as the person for whom he is a 
 witness. Termes de ley, 581. 
 
 Smallwood v. Mitchell, 2 Hayw. 145 ; Davis v. Whiteside's Adm'r, 4 J. J. Marsh. 116, 
 117 ; Cotchet v. Dixon, 4 M'Cord, 811 ; Stebbins v. Sackett, 5 Conn. Rep. 258 ; Rogers v. 
 Dibble, 3 Paige, 238 ; Chance v. Hine, 6 Conn. Rep. 381 ; Jones v. Tevi's, 4 Litt. 25, 28. 
 
 It may be proper to observe here, that what a witness who is called shall have been 
 heard to say, shall not be received to show his interest ; for it is mere hearsay. Com- 
 monwealth V. Waite, 5 Mass. Rep. 261 ; Pierce v. Chase, 8 Mass. Rep. 487 ; Vining's 
 Lessee v. Wooten. 1 Cooke, 127 ; Jones v. Tevis, 4 Litt. 25, 38 ; Pollock's Lessee v. 
 Gillespie, 3 Yeates, 129 ; Cotchet v. Dixon, 4 M'Cord, 311 ; Stimmel v. Underwood, 3 Gill 
 & John. 283 ; Freeman v. Luckett, 3 J. J. Marsh. 390 ; Davis v. Whiteside's Adm'r, 4 
 J. J. Marsh. 116. Contra, Dennis v. Jones, 1 Coxe's Rep. 46. And see Patten v. Halsted, 
 Id. 377. But what the party who offers the witness said, may be received. Pierce v. 
 Chase, 8 Mass. Rep. 487. And see 5 Id. 361. But where the defendant, having objected 
 to the competency of the plaintiff's attorney called as a witness, in order to show his 
 interest, offered to prove by a person that he called on the plaintiff and told him that he 
 was authorized by the defendant to ascertain on what terms he, the plaintiff, would 
 *101 settle the suit ; *and that the plaintiff referred hinj to the attorney, saying that ho 
 owned a part of the demand against the defendant, which was a jiromissory note^ 
 held, that this statement of the plaintiff, being made during a negotiation for a settlement, 
 was not admissible in evidence, even to show the interest of the witness. Williams v. 
 Thorp, 8 Cowen's.Rep, 301. Quere. See post, as to confessions made during a negotiation 
 to compromise. 
 
 Most of the American cases have strictly followed the old English rule laid down in 
 the text (former edition), that where you resort to the voir dire you a¥e concluded ; and 
 if you fail to show incompetency in this mode, you cannot do it by other evidence of any 
 kind in the course of the same trial. MiBlin v. Bingham, 1 Dall. 373, 375, per M'Kean, 
 
 Vol. L 11 
 
82 Of the Time of Objecting.to Gompet^ncp. [cm V. 
 
 C. J..; WeWen v. Buck, Anth. N. P. Rep. 9, 10 ;. Stebbius r: Sackett, 5 Conn. Eep. 258, 
 261, per Hosmer, C. J. ; Butler v. Butler, 3 Day, 214, 218 ; ChaHce v. Hine, 6 Conn. Rep. 
 331; 232, per Lanman, J. So, if you inquire of the wilnees as to his interest, on his gen- 
 eral oath, this is equivalent to an inquiry upon the voir dire, and equally prevents a 
 resort to any other mode. Butler v. Butler, 8 Day, 314, 218. But this waB denied ill 
 Mifflin V. Bingham (supra), -where it is said, though you croBS-examiue the -witness thus 
 to show his interest, and fail, you may yet show it othervrise. And if was said in Steb- 
 bins V. Sackett (svpra), that if you inquire on the voir dire of one set of facts, and fail on 
 these to establish incompetency, you may still go to other evidence in order to show 
 incompetency from another state of facts. See this case infra, stated more at large. 
 
 Tlie cases are still more strongly and directly to the' point, that after you have attempted 
 to show i,ncompetency by evidence derived from any other source than the witness, you 
 Shall not. afterwards put him on his voir dire. Bridge v. Wellington, 1 Mass. Rep. 219, 
 221, 222 ; Mifflin v; Bingham, 1 Dkl!. 272, 275, per M'Keau, C. J. : Stebbins v. Sackett, 5 
 Conn. Rep. 258, 261. Nor can you cross-examine him to the point of interest when he 
 comes to be sworn in chief, in consequence of your failure in your first attempt to prove 
 him incompetent by testimony other than his own. Chance v. Hine, 6 Conn. Eep. 231^ 
 And it was held he could not be cross-examined under such circumstances, even to 
 impeach his credibility. Id. 
 
 But where you have failed in your attempt by other testimony to show one set of facts 
 upon which you rely for incompetency, you may still show his interest on another set of 
 facts, even on his wir dire. Thus, where it appeared by the plaintiff's general evidence 
 that the witness was interested to testify in favor of the plaintiffs, the witness having 
 iiidorsed the note in question after the defendant, the plaititiffs released the witness. The 
 defendant then insisted, that the witness was interested, as having made a general 
 assignment of the note in question to the plaintiffs, with all his other property, to pay 
 his creditors, so that this note, if recovered, would'go to increase the fund for payment; 
 and if the suit should fail, the fund would be diminished — an interest not touched by the 
 release. And to prove the assignment, the defendant offered to have the witness sworn 
 oil his voir dire. Held admissible. Stebbins v. Sackett, 5 Conn. Rep. 258, 261. 
 
 It was held in Bridge v. Wellington (1 Mass. Rep. 219, 222), that where a party offers a 
 witness against yon, and you object upon the party's own evidence that the witness is 
 interested, and your objection is overruled, thig is not such an attempt to prove the inter- 
 est by evidence aliunde as comes within the rule precluding a resort to the voir dire. 
 
 The defendant objected to the competency of a witness offered by the plaintiff, on the 
 ground that it appeared from the testimony already given in the case, that the witness 
 was interested. The judge permitted the witness to be sworn, reserving the question of 
 His competency. Held, that the question should have been decided when the objection 
 was made; but having reserved the question, the judge could not, in deciding afterwards 
 on the competency of the witness, take into consideration his testimony, given while the 
 question remained undetermined ; but that the decision must be made on the other facts 
 of the case, without regarding such testimony. Mott v. Hicks, 1 Cowen's Rep. 513. 
 
 Evans v. Eaton, 1 Peters' C. C. Rep. 822. A question arose in this cause whether, 
 when a witness is sworn on his voir dire, any other evidence could be given to prove his 
 interest, except such as might arise from his own testimony. The court decided it could 
 not; but said, if it should appear in any subsequent stage of the examination, by other 
 evidence, that he was not a competent witness, the court would set him aside. A wit- 
 ness on her voir dire, states that she was the wife of the party ; semble, she may restore 
 her competency by stating that she had fceen divorced a vinculo, though it was objected 
 that the record should have been produced. Wells v. Fletcher, 5 Carr. & Payne, 12. 
 Though the witness on his voir dire, being offered for the defendant, answered that he 
 was not liable to pay the costs of defense, the plaintiff's counsel was allowed to show Mm 
 a letter of his own, to the defendant's wife, and then repeat the question. Homan v. 
 Thompson, 6 Carr. & Payne, 614. 'The court said, that after an examination on the voir 
 aire, other evidence to show interest could not be produced. But yet, if it come out in 
 the course of the witness's examination in chief, that he is interested, he maybe rejected. 
 Da;vis V. BaiT, 9 Scrg. & Rawle, 138. Said, you may offer direct proof of interest after 
 foiling to show it by the voir dire. Hamblett v. Hamblett, C N. Hamp. Rep. 351. Ri an 
 action by the indorsee against the indorser of a note, the maker, on his voir dire, 
 expressed his doubts whether he was interested, stating his interest to depend on the 
 question whether a demand he had against the defendant, was barred by the Statute of 
 Limitations, in case he should he sued by the defendant on a recovery against him,tn the 
 pending cause. Held a competent witness for the defendant, this not being either a dec- 
 laration that he was interested, or that he believed himself to he so. Bank of Columbia 
 v. Magruder, 6 Harr. & John. 172 ; Galbraith v. Qalbraith, 6 Watts, 112, 122, S. P. It 
 was said, the judge may, in his discretion, allow a resort to the voir dire, after other 
 tnodes of impeaching the witness have failed of effect, though it is doubtful whether he 
 is bound to allow' it. Butler v. Tufts, 1 Shepl. 303. On the voir dire, a witness may bo 
 required to verify his signature to an instrument, which may then be read iu proof of his 
 interest. Hamblett v. Hamblett, 6 N. Hamp. Bep. 333, 851. 
 
CH, V.J Of the Time of OlQebting to Competency. 83 
 
 *102: *If^ however, the objection has Hot been raised belbie the witness 
 has left the box, he cannot be. recalled for the purpose: of examining 
 him. as to his competency. (1) 
 
 The result appears to be, that in ordinary cases, that is, where the incom* 
 peteney of a witness is unknown to the adverse party, the objection need 
 not be raised by an examination on the voir dire, either preliminarily to his 
 examination in chief, or after such examination has comme'nced. or con- 
 cluded ; but it will be sufficient to raise the objection as soon as the party 
 becomes aware of it, provided it be done before the witness leaves the box. 
 But after he has left the box, he cannot be recalled fpr the purpose of 
 starting the objection. 
 
 It has been thought, however, that where,, from- the commencement of 
 an examination in chief, the opposing counsel know-s of a. witness's incom- 
 petency, he ought, not to be allowed to lie by and take the chance of the 
 evidence being in his favor, and when he finds it to be unfavorable to him^ 
 then to take the objection. (2) Lord Abinger, C. B., referring to this opin^ 
 ion, thought differently,, observing, that a counsel who knows of an objection 
 to the competency may very fairly say, " I will lie by, and see whether he 
 will speak: the truth ; if he does npt, I will exclude his evidence." But this 
 reasoning seems not quite satisfactory ; and, on further consideration, it 
 may perhaps be thought, that with a view to fair practice^ and for 
 *103 the ends of justice, the safest and least inconvenient course would *be, 
 to require the counsel, if he knows, or has reason to suspect, the 
 incompetency of a- witness, before the examination in chief commences, to 
 make inquiry on that point in the first instance. 
 
 If the proposed witness should be the party substantially interested in 
 the suit, or, in the words of Lord Denman's Act, the party in whose imme- 
 diate and individual behalf the action is brought or defended, and the 
 adverse party should know that such a person (who is in reality his adver-, 
 sary in the suit) is about to be called as a witness against him, he may, if 
 he thinks fit, openly waive the objection and allow the examination t6 
 proceed. But if he allow him to be sworn and give evidence without 
 raising the objection, it seems reasonable that he should be deemed equally 
 to have waived his power of objecting. 
 
 The objection to a witness's competency may be supported either by the^ 
 examination of the witness, or by independent evidence. It was at one, 
 time thought that a party could not resort to both these methods ;(3) but 
 there appears to be no good reason for this restriction, and the rule is now 
 otherwise. (4) 
 
 Where the incompetency of the witness would appear from some written 
 instrument which is not produced, he may be examined as to the contents 
 of it. The general rule, which requires the production of the instrument 
 itself, or that a notice to pioduce it should be given before a witness can be 
 examined as to its contents, (5) does not apply to such a case; for the 
 objecting party may be ignorant of its existence befpre the examination of 
 
 He may be examined respecting contracts, records or documents. Miiler v. Mariners' 
 Church, 7' Greenl. 51, 63; Hays. v. Richardson, 1 Gill & John. 366. And see Seewell v. 
 Stubbs, 1 Carr. & I^yne, 73, and the note to this case. See also Herndon v. Givens, 
 16 Ala. B. 673. 
 
 (1) Beeching v. Gower, Holt Nj P. C. 314 ; Dewdney v. Palmer, 4 M. & W. 667. In tha 
 first-mentioned case the judge had recalled the witnessi for the purpose of asking him a 
 queslion oonneoted with the cause ; but he would not permit him to. be re-examined as 
 to his competency. 
 
 (3) By Park, B., in Jacobs, v. Layborn, 11 M. & W. 685. See aJso Hartshorne v. Wat- 
 son, 5 N. C. 477. 
 
 (8). See 10 Mod. 151 ; Ambl. 593: Ca. temp. Hardw. 358. 
 
 (4). See tJie opinion of Lord Abinger, C. B., 11 M. & W. 693, and Lord Hardwicke's in 
 Lord Lovat's Case, supra, p. 09. 
 
 (5) Post, Chap. On the'SxckiMim of Secondmry JEvidmeei 
 
84 Of the Time of Objecting to Competency. [oh. t. 
 
 the witness, and he cannot be supposed to know that this particular witness 
 would be called on the other side. If, howeves, the witness himself pro- 
 duces the instrument, it ought, of course, to be read as the best proof of 
 the witness's situation. (1) And if the instrument is in court, the opposite 
 counsel is entitled to have it produced, and to make any objection that 
 may exist as to its admissibility for want of sufficient stamp. (2) 
 
 When the objection arises from a witness's examination or from inde- 
 pendent evidence, it may be removed by a further examination of the wit- 
 ness. (3) Thus, in an action brought by a chartered company,(4) where a 
 witness for the plaintiif admitted, on the voir dire, that he had been 
 a freeman of the company, but added that he was then disfranchised, 
 *104 Lord *Kenyon ruled, that it was not necessary to prove the dis- 
 franchisement by the regular entry in the company's books, and that 
 the witness was competent. So, in an action by an administrator, (5) where 
 a witness called for the plaintiff admitted that he was next of kin, and was 
 objected to on this ground, but answered, on re-examination, that he had 
 released all his interest, this was held by Lord Ellenborough to remove the 
 objection. 
 
 Where a party calling a witness, who has been objected to, attempts' to 
 remove the objection, not by a further examination of the witness, but by 
 other independent proof, he will be subject to all the ordinary rules of 
 evidence, and the best proof will be required according to the nature of the 
 case. (6) 
 
 (1) Butler V. Carver, 3 Stark. R. 434. See also Qodmancliester (Bailiffs, &c.) v. Pliillips, 
 4 A. & E. 550 ; Lucas v. Eades, 1 Dowl (N. S.) 434. 
 (3) Quartennan v. Cox, 8 C. & P. 97. 
 
 (3) See Brookbank v. Anderson, 7 M. & G. 395; 313. 
 
 (4) Butchers' Company v. Jones, 1 Esp. 163. See also Botham v. Swingler, Peake N. 
 P. C. 214 ; S. C, 1 Esp. 164. Another example may be seen in R- v. Gisburn, 15 East, 57. 
 
 (5) Ingram v. Uade, Lond. Sitt. after Mich. T. 1817 ; S. C, 1 C. & P. 335, n. See also 
 Wandless v. Cawthorne, Mo. & Ma. 331, n. ; Carlisle v. Eady, 1 C. & P. 334 ; and Lunnis 
 V. Rose. 10 A. & E. 606. 
 
 (6) Coiking v. Jarrard, 1 Campb. 37. 
 
 (In Pennsylvania, a witness is not allowed to remove an appearance of interest, shown 
 by other evidence, by his own testimony. Anderson v. Young, 31 Penn. 443 ; Banks v. 
 Clegg, 14 Penn. State E. 390. And if it appear from his testimony on the voir dire that 
 lie is incompetent, and'he be allowed to testify notwithstanding, his examination in chief 
 cannot be looked into to cure the error. Lay v. Lawson, 28 Ala. 377.' The incompetency 
 of a witness on the ground of interest may be waived ; and where a witness incompetent 
 on the ground of interest, is sworn in chief, and examined in relation to the interest of 
 another witness merely, the opposite party has a right to examine the witness so sworn 
 on the merits of the case ; the party calling him thereby waives the objection grounded on 
 his interest. Linsley v. Lovely, 26 Vt. 128 ; Kelly v. Brooks, 35 Ala. 523. And such a 
 waiver cannot be recalled. Chateau v. Thompson, 3 Ohio, (N. S.) 434. 
 
 If the witness answers on his voir dire that he is interested in the evtnt of the suit, this 
 is prima facie sufficient to exclude him ; but the party calling him may follow up the 
 examination and show by him that he is not in fact interested. Blackstock v. Leidy, 19 
 Penn. (7 Harris) 385 ; Tarleton v. Johnson, 25 Ala. 300.) 
 
 Note 49.— In an action by the assignees, the bankrupt was called for them, and stated 
 that he had obtained his certificate, but did not produce it. His release was in court. 
 Held, that both must be produced, or their absence accounted for ; that it was not like 
 the case of an objection raised by secondary evidence on the vmr dire, which may be 
 removed by it. Qoodhay v. Henry, 1 Mood. & Malk. 319, 320 ; Wandless v. Cawthorne, 
 Id. 821, note, S. P. ; Anonymous, Id., S. P. ; and see Jackson ex dem. Montressor v. Rice, 
 8 Wend. 180. And so in all cases where the incompetency of the witness appears not on 
 the voir dire, but aliunde, as if it be shown from the face of a paper produced in the cause, 
 the witness cannot himself be examined to remove it. Evans v. Gray, 1 Mart. Lou, Rep! 
 (N. S.) 709 ; Mott. v.. Hicks, 1 Cow. Rep. 518. But a witness examined in chief, stating 
 facts which create an interest, and following this with facts which do it away, is compe- 
 tent. McMicken v. Fair, 6 Mart. Lou. Rep. (N. S.) 515. 
 
 We stated ante, some cases as to the manner, other than by the wnr dire, of proving 
 the discharge of a witness's interest when it appears that he is incompetent. The amount 
 of those cases seems to be, that if his interest appear otherwise than by his own exami- 
 nation, he himself is incompetent to testify to the facts by which it was removed. And 
 
CH. Yi,] Of the Competency of Accomplices. 85. 
 
 *105 *CHAPTER VI. 
 
 OF THK COMPETENCY OF ACCOMPLICES, INFOEMEES AND SELP-DISCEBDITING 
 
 WITNESSES. ■• 
 
 In connection with the question of incapacity of persons to give evidence, 
 may be considered another class of persons, whose testimony, although by 
 law admissible, is still regarded with some suspicion, and generally requires 
 more or less confirmation. 
 
 SECTION I. 
 Of the Competency of Accomplices. 
 
 Before the passing of Lord Denman's Act, a person who had been con- 
 victed of any infamous crime could not be received as a witness ; but even 
 then a witness was not incompetent from infamy of character, unless a con- 
 viction and judgment were proved against him;(l) not even though he 
 might admit himself to have been convicted. (2) And it was also a settled 
 rule of evidence, that a witness in a criminal prosecution was not incompe- 
 tent on the ground that he had been an accomplice with the prisoner at the 
 bar in the particular crime which was the subject of the indictment. 
 
 With respect to any objection that might be made against the reception 
 of the evidence of accomplices, on the ground of the admitted infamy of 
 their character, there appears to be no distinction between an accomplice, 
 who acknowledges that he has participated in the commission of the crime 
 with which the prisoner at the bar stands charged, and any other witness, 
 who admits that he has been guilty of a similar crime on a difierent occa-' 
 sion. But the testimony of an accomplice is usually given under an 
 *106 *express or implied promise of pardon ; sometimes, in the expecta- 
 tion of receiving a reward on the prisoner's conviction; and this 
 peculiarity in the situation of an accomplice appears to furnish a much 
 stronger ground of suspicion against his evidence, than exists with regard 
 to witnesses whose conduct has been equally guilty, but who do not give 
 their evidence from the same interested motives. It had been, however, 
 long . settled, that an unconvicted accomplice was not an incompetent wit- 
 so is the case of Fay. v. Green, 1 Aik. Verm. E. 71. Otherwise, if the objection arise out 
 of his own examination, though in chief. 
 
 In Bean's Ex'r v. Jenkins' Kx'r (I Harr. & John (Maryland,) 135), hoth the declarations 
 of tlie party offering the witness, and the out-door declarations of the witness hioiBelf, 
 were received to prove liis incompetency. That the former were correctly, and the lattec 
 improperly received, by many books, and even on the later Maryland cases, see per Skin- 
 ner, (;hancellor. in Nichols v. Holgate, 3 Aik. Ii38, 140; Doe ex dem. Ingram v. Watkins, 
 I Dev. & Batt. 44J, 443. Two persons being offered as witnesses for the plaintiff were 
 objected to, and a witness for the defendant stated he heard the iilaintiff say he was not 
 to pay the costs of this suit if he lost it, as he had somebody between him and danger, 
 which the witness understood to mean the two witnesses offered. This was held insuffi- 
 cient to establish their incompetency by reason of liability for costs. High v. Stainbacfc, 
 1 Stew. Eei» 24. 
 
 Sim'). Tliough the judge should receive the declarations of the witness as to interest, 
 in presence of the jury, it would not be cause for a new trial, if he receive the witness as 
 competent, and submit his credit to the jury. Ackley v. Kellogg, 8 Cowen, 298. 
 
 (1) R. v. Castle Careinion, 8 East, 78. 
 
 (2) lb. ; B. V. Teal, 11 East, 309 ; Rands v. Thomas, 5 M. & S. 244. 
 
 Tlie English statute declares that no person offered as a witness shall hereafter bo 
 excluded by reason of incapacity from crime or interest. 6 & 7 Vict, c. 85. Ouf statute, 
 on tke other hand, declares that no person offered as a witness shall be excJuded by rea- 
 son of his interest in the event of the suit (Code of N. Y., § 398), thus leavjflg tlie question' 
 of incompetency, arising from the conviction of infamous crime, as it stood before the 
 Code. 
 
86 Of the Competency of Accomplices. [oh. vi. 
 
 ness, although he might have had a promise of pardon or reward, on 
 condition of giving evidence against the prisoner. (1 J 
 
 The evidence of accomplices has been at all times admitted, and its 
 admission has been supported on the ground of public policy and hecessity, 
 from its being scarcely possible to detect conspiracies, and many of the 
 worst crimeSj without their information. In Chamock's Case, (2) Lord Holt, 
 
 in his address to the jury, said : " Conspiracies are deeds of darkness 
 *10,7 *as well as of wickedness, the discovery whereof can properly come 
 
 only from the conspirators themselves ; and the evidence of accom- 
 plices has been allowed good proof in all ages ; and they are the most proper 
 witnesses ; for otherwise, it is hardly possible, if not altogether impossible, 
 to have full proof of such secret contrivances." In answer to an objection 
 of the prisoner, that " although an accomplice was a legal witness, he was 
 not a good one," Lord Holt added, " the credit of what he says, as in all 
 other cases, must be left to the jury, who are judges of the matter of fact, 
 and of the credibility of witnesses." 
 
 Object of admitting accomplices. The object of admitting the evidence 
 pf accomplices is, in order to effect the discovery and punishment of crimes, 
 which cannot be proved against the offenders without the aid of an acc;om- 
 plice's testimony. In order to prevent this entire failure of justice, recourse 
 IS hai to the evidence of accomplices, and they are admitted to give evi- 
 dence for the crown, either under an express promise of pardon, offered 
 upon certain conditions by special proclamation, in the Gazette, or other- 
 
 (1) Tongue's Case, Kel. 17 ; S. C, 1 Halo P. C. 303 ; Layer's Case, 19 How. St. Tr. 373 '. 
 S. C, fiawk P. C. b. 2, c. 46, § 135 ; Willes, 433, 425 ; 4 Bast, 180.; Say. 289 ; E. v. Eook- 
 wood, 4 St. Tr. 681. 
 ' (3) 13 How. St. Tr. 1454, reiferred to by Lord EUenborougli in Despard's Case, 28 How. 
 St. Tr. 488. 
 
 Note 50. — The doctrine of the text in regard to the a.dmissibility of accomplices, has 
 been recognized in several, and, it is presumed, in most of the United States, in its fullest 
 ejcterit. The People v. Whipple, 9 Cowen's Rep. 707 ; Byrd v. The Commonwealth, 2 Vir. 
 Gas. 490 ; Bean v. Bean, 13 Mass. Rep. 20 ; Churchill v. Suter, 4 Mass. Rep. 156 ; M'Niff 's 
 Case, 1 C. H. Rec. 8 ; The State v. Wier, 1 Dev. 363 ; United States v. Henry, 4 Wash. C. 
 C. Rep, 428. The evidence of accomplices has been at all times admitted, although from 
 a principle of public policy, or from judicial necessity, or from both. They are no doubt 
 Requisite as witnesses in particular cases, but it has been well observed, that in a rpgnlar 
 system of administrative justice, they are liable to great objections. "The law," says 
 one of the most useful modern writers on criminal jurisprudence, "confesses its weakness, 
 by calling in the aid of those by whom it has been broken. It offers a premium to 
 treachery, and destroys the last virtue which clings to the degraded transgressor. On 
 the other hand, it tends to prevent any extensive agreement among atrocious criminals, 
 makes them perpetually suspicious of each cither, and prevents the hopelessness of mercy 
 from rendering them desperate." People v. Whipple, 9 Cowen's Rep. 707. As in a 
 criminal case, a parUoeps criminis is admitted as a witness, so in a civil case, a particeps 
 fraudis may be, either to prove or disprove the fraud. Churchill v. Suter, 4 Mass. Rep. 
 156 ; Bean v. Bean, 13 Id. 30 ; Major v. Deer, 4 J. J. Marsh. 586, 587 ; Glenn v. Kapff, 3 
 Gill & John. 138. 
 
 But it has been held in Vermont, that on the trial of an indictment for adultery, a 
 particeps eriminis is not a competent witness, on the ground that no person shall be 
 allowed to testify his ovra guilt or turpitude, to convict another. State v. Annice, N. 
 Chip. Rep. 9. Oftfenders against the act to prevent duelling are competent (in New York) 
 to testify against any other person offending in the same transaction ; indoad, are com- 
 pellab\« to testify the same as any other witnesses. 2 R. S. 686, S 8. The thief is 
 oompeteu to prove an indictment for buying stolen goods of him. M'Niff's Case, 1 C. H. 
 *ec. 8; HUl's Case, Id. 57, 59. In the latter case, it is assorted that conviction may 
 fiMow, though the testimony of the accomplice stand uncorroborated. Per Radcliff, 
 Major, in his charge. Id. 50. Quere. An accomplice. Separately indicted, is competent 
 OB a witness foi or against another indictpd for the same offense. To constitute an 
 accompUoB, Uie person charged as such must have an intention of committing the crime. 
 Mere apparent concurrence is not enough. United Slates v. Henry, 4 Wash. C. C. ftep. 438. 
 (An accomplwe is only admitted from the necessity of the case, and where there is no 
 other person by whom- the crime or offense can be .proved. Bay v. State, 1 Iowa 
 (Greene), 316.) 
 
SBC. I.] Of the Competenqi/ of Accompliees. 87 
 
 wise ; or, more commonly, under an implied promise of pardon, on condition, 
 of their making a full and fair confession of the whole truth. (1) In the 
 former case, acconiplices who comply with the proposed conditions are 
 entitled to pardon as a matter of right ; in the latter case, they have ..an; 
 equitable title to be recommended to mercy, on a strict and ample perforjn-' 
 ance of _ the condition on which they are admitted as witnesses, to the 
 satisfaction of the presiding judge. This equitable right cannot be pleaded 
 in bar, or in any manner set up as a legal defense to an indictment charging 
 them with the same ofiFense, though it may be made the ground of a motion 
 for putting off their trial, in order to allow time for an application to the 
 proper quarter. (2) With regard to other offenses with which the prisoner, 
 at the bar is not charged, an accomplice can derive no advantage from such ! 
 equitable claim to a pardon : the claim must be considered as limited to the 
 particular offense for the prosecution of which bis testimony is admit- 
 ted. (3) 
 
 *108 * Application to court to admit accomplices. It is not a matter of 
 course to admit a person, charged with the commission of a crime, 
 as a witness against his associates, not even after he has been allowed to 
 give evidence before the committing magistrate: but if his evidence is 
 deemed to be absolutely necessary in support of the prosecution, the proper ' 
 course is to apply to the court for permission to send him as a witness 
 befor^ the grand jury;- and it is in the discretion of the judge, under aU 
 circumstances of the case, whether he will grant or refuse an order. Where 
 it is intended to make this application, the accomplice ought not to be 
 included in the indictment ; but where he has been included with his con- 
 federates in a joint indictment, he may still be used as a witness in some 
 cases with the consent of the court. Thus, in a prosecution for a conspiracy, 
 a vei'dict of acquittal may be taken against some of the defendants before 
 the openinw of the case ; and the defendants so acquitted may be called as 
 witnesses tor the prosecution. (4) And the same course may be adopted, 
 with the permissioa of the court, in cases of felony. (5) In such case, how- 
 
 (1) See Rudd'a Case, Cowp. 339. 
 
 (2) See, Eudd's Case, Cowp. 339. 
 
 Note 51. — Accomplices are admitted to give evidence under an implied promise of 
 pardon, on condition of Jbeir making a full and fair confession of the whole truth ; thalt 
 is, of ail the offenses about which they might be questioned, and of all their associates in 
 guilt. This implied promise arises from the consideration that the witness, who is not 
 bound to criminate himself, does so to discover greater offenders ; and upon performance 
 of the condition to the satisfaction of the court, he acquires an equitable title to a pardon. 
 People V. Whipple, 9 Cowen's Rep. 707, (If he acts in good faith, and is admitted by the 
 court as a witness, the government is honorably bound to discharge him. United States 
 v. Lee, 4 McLean, 103.) 
 
 (3) Lee's Case, Kuss. & Ey. C. C. 361 ; Brunton's Case, Id. 454. It is entirely in the dis- 
 cretion of the judge in these cases, wh.ether he will recommend the accomplice to mercy. 
 As the accomplice is entitled to no protection in respect to other offenses, he is not bound 
 to answer questions relative to such offenses on his cross-examination. West's Case, 0. 
 B. Sessions, 1831. See post, MlxaminaHon of Witnesses. It is not usual to admit accom- 
 plices who are charged with other felonies. 
 
 Note 52. — An accomplice admitted to testify of one crime may, though he behave well, 
 be prosecuted for another crime, the implied promise of pardon not extending to that ; and 
 if it appear that he is charged with any other felony than that in relation to vvliich th» 
 prosecutor moves for his admission as a witness, this fact, of itself, will be sufficient 
 ground for rejecting liim. People v. Whipple, 9 Cowen'sRep. 721, note a, also resolved 
 in several cases, 2 Carr. & Payne, 411 ; Maudslay v. Le Blanc, 12 Eng. Com. Law Rep. 643. 
 
 (4) E. V. Bowland, Ey. & Mo. N. P. C. 401. See E. v. Fletcher, 1 Stra. 683. 
 
 (5) B. v. Owen, 9 C. & P. 83. 
 
 Note 53. — For several cases sanctioning this practice, see 3 Carr. & P. 411, and the 
 note there. 
 
 A motion should be made to the court for the admission of an accomplice to testify, by 
 the public prosecutor, and the court, under the circumstances of the case, will admit, or 
 disallow the evidence, as may most effectually answer the purposes of justice. Tiiug, 
 
88 Of the Competency of Accomplices. [ch. tl 
 
 ever, the witness stands wholly absolved from the charge, and can no. 
 longer be considerecT in the light of an accomplice. 
 
 If an accomplice, after having confessed the crime, and after having been 
 received as a witness against his associates, breaks the condition on which 
 he has been admitted, by refusing to give full and fair information, the court 
 may direct a bill to be presented forthwith to" the grand jury against him, 
 or, if they are discharged, may commit him to prison, and he may be tried 
 
 and convicted on his own confession. (1) 
 *109 *0n the trial of a person for a misdemeanor in receiving stolen goods 
 (under the repealed statute 22 Geo. Ill, c. 58), which authorized jpro- 
 ceedings against the accessory, notwithstanding the principal felon might 
 not have been con^'icted or might not be amenable to justice, the party who 
 had committed the theft, but had not been convicted, was held to be a com- 
 petent witness for the prosecution, (2) and the same doctrine would be 
 applicable to the case of a receiver, prosecuted for a substantive felony 
 under the provisions of the statute now in force on this subject. (3) 
 
 As an accomplice is not an incompetent witness for the prosecution, it 
 follows that he will be also a competent witness on behalf of the prisoner, 
 notwithstanding he may be himself charged on a separate indictment. (4) 
 And upon a joint indictment against several prisoners, where there is either 
 no evidence whatever, or very slight evidence against one of them, the 
 court, in the exercise of its discretion, sometimes will direct a verdict to be 
 given for him, and upon his ' acquittal admit him as a witness for the other 
 prisoners. (5) 
 
 where one, against ivliom a verdict had been given for murder, was offered as a witness 
 against an accessory before the fact, but appeared to have been the leader in perpetrating 
 the crime, he was rejected. People v. Whipple, 9 Cowen's Rep. 707. 
 
 (On the motion to admit the accomplice as a, witness, it should be shown that his 
 testimony is absolutely essential to prove the commission of the crime by the party 
 indicted or on trial, and that the person proposed to be admitted is not more guilty than 
 the^other. Ray v. State, 1 Iowa B. 316.) 
 
 (1) See Moore's Case. 3 Lew. 37; B. v. Smith; B. v. Stokes; R. vyHoltham, cit. 2 Rubs. 
 Cr. & M., by Greaves, 058, n. d. 
 
 Note 5-1.— rit seams that what an accoirfplice states under oath against his associate, 
 would not b3 admissible evidence against himself, on account of the implied promise of 
 the court to recommend him to mercy. See the remarks of Duer, Circuit Judge, in the 
 People V. Whipple, 9 Cowen's Rep. 716. But where an accomplice received a promise 
 from the attorney-general that he shpiild not be prosecuted if he would become state's 
 evidence and make a full disclosure, and upon such promise he made a confession, but 
 afterwar;]>< refused to testify, he was put upon his trial, and this same confession was held 
 admissible in evidence against him. The Commonwealth v. Knapp, 10 Pick. 477, 489 
 to 495. 
 
 (3) Haslam's Case, 1 Leach C. C. 467 ; Price's Case, Id. 463, n. 1 ; Patrara's Case, 2 East 
 P. C. 733. See also Wild's Case, 2 East P. C. 783 ; and 7 & 8 Geo. IV. c 29, § 58. 
 
 (3) 7 & 8 Geo. IV, c. 39, § 54. 
 
 Note 53. — The statute of New York provides that an accessory may be indicted, tried, 
 convicted and punished, notwithstanding the principal felon may have been pardoned, or 
 otherwise discharged, after his conviction. 1 R. L. 490 ; 3 R. S. 737, § 49. Under this 
 statute, it is held that the accessory may be proceeded against, if the principal has been 
 cinvicted, although he have not been sentenced, and that, in such case, the principal 
 felon is a competent witness against the accessory. People v. Whipple, 9 Cowen's Rep. 
 707, 709, 710. 
 
 (A. confession, mado by a principal, cannot bo given in evidence against an accessory. 
 State v. Newport, 4 Harring. 567. Whore the statute makes the aiding and abetting the 
 cimmission of a crime a distinct and substantive offense, it is not essential that the prin- 
 cipal should be first tried and convicted, Nolan v. The State, 19 Oliio R. 131. But in 
 general, the acquittal of the principal discharges the accessories. United States v. Crane, 
 4 McLean, »17.) 
 
 (4) 2 Hale P. 0. 380 ; 3 Boll. Abr. 085 ; Fortesc. 246. 
 
 (5) 2 Hawk. P. C o. 48, § 98 ; B. v. Bedder, 1 Sid. 337. See supta, p. 64. 
 
 Note CX— Where saveral persons are jointly indicted; one is not a competent witness 
 for another, without being first acquitted, or convicted; and it makes no difference 
 whether the defendants pleod jointly or separately The People v. Bill, 10 John. Rep. 
 flB ; Campbell v. The Commonwealth, 3 Virg. Cas. 814. Et mde The State v. Alexander, 
 
BEC. II.] Of the Confirmation of Accomplices. 89 
 
 *110 *SECTIQN" II. 
 
 Of the Confirmation of Accomplices. 
 
 Since accomplices are competent witnesses, it appears to follow, as a 
 necessary consequence, that if their testimony is believed by the jury, 
 a prisoner may be legally convicted upon it, though it be unconfirmed 
 by any other evidence. It is the peculiar province of the jury to determine 
 upon the degree of credit to be attached to any competent evidence sub- 
 mitted to their consideration ; and it has accordingly been laid down in 
 many eases as a settled rule, that a conviction obtained upon the unsup- 
 ported testimony of an accomplice is strictly legal. (1) 
 
 2 Bep. Const. Ct. So. Ca. 171. Thus, where two being jointly indicted for an assault and 
 battery, pleaded, and were tried separately; and after the testimony for the people 
 against one had closed, he offered to prove his defense by the other, it was held that the 
 witness offered was incompetent before trial and acquittal, or conviction. People v. Bill, 
 10 John. Rep. 95. So where two were jointly indicted for larceny, and being separately 
 arraigned, pleaded and were tried separately, it was held that a party in the same indict- 
 ment cannot be a witness for his co-defendant, until he has been first acquitted, or, in 
 some cases, convicted, whether the defendants be jointly or separately tried. Campbell 
 v. The Commonwealth. 3 Virg. Cas. 314. 
 
 If any evidence is given against one of two jointly tried, the court will not strike his 
 name out of the indictment for the purpose of malting him a witness for the other ; and 
 where there is no evidence against one of several defendants, it seems that the motion to 
 Btrike out his name can only be legally granted by consent of the attorney for the state, 
 and by considering It equivalent to a motion on his part for leave to enter a nolle prosequi 
 as to such defendant. State v. Alexander, 2 Bep. Const. Ct. So. Ca. 171. Accordingly, on 
 trial t)f an indictment for larceny, the attorney-general not consenting, though noevidency 
 appeared against one of the prisoners, the court refused to swear him as a witness for tho 
 others. State v. Carr, 1 Coxe, 1 . But of this, quere ; for the attorney-general may thus 
 wrongfully withhold evidence from the defendants ; and in another case, persons joined 
 in a complaint, against whom there was no evidence, were, on motion in behalf of tho 
 other defendants, admitted for them. State v. Shaw, j Root, 134. But if circumstances 
 are proved from which it is possible for the jury to presume guilt, a co-defendant in an 
 indictment cannot be a witness for the defense. Pennsylvania v. Leach, Addis. 353. 
 For the general doctrine, see also Rex v. iJbng, 6 Carr. & Payne, 179. 
 Where one is indicted jointly with his accotnplices, it is in the discretion of the state's 
 attorney to try the prisoners separately, and use the accomplice, or not, on trial, as a wit- 
 ness ; but the prisoners have no such right of election for such a purpose, because the accom- 
 plice jointly indicted is not competent for them though they sever. State v. Calvin, E. M. 
 Chart. 151, 169. And it was said generally, that the state may use the accomplice as a 
 witness, but the prisoners not. Id. 16D. Quere of this, independent of their being joined 
 as parties? He is competent for either party, if not indicted. MiA qutre, whether the 
 accomplice, so long as he remains on the record as a joint indictee, can be received as a 
 witness for either party, though his associates be tried separately ? Rex v. Eowland, By. 
 & Mood. N. P. Bep. 401, and n<)te. 
 
 (Where the statute makes the aiding' and abetting in the commission of a crime a dis- 
 tinct offense, and one is indicted for the crime, and another for aiding in its commission, 
 the former is a competent witness on the trial of the latter. Noland v. The State, 19 
 Ohio, 131. And it is held in Virginia that where the indictment is joint, and the prisoners 
 are tried separately, one of them may be a witness for the' otlier. Lozier v. The Common- 
 wealth, 10 Gratt. 708. And though tried together, if there be but little evidence against 
 one of them, the court will submit his case first to the jury, so that if he is found not 
 guilty, he may be sworn as a witness for the other. Fitzgerald v. Tlie State, 14 Mis. 413.) 
 (1) B. V. Atwood, I-isach C. C. 521 ; B. v. Durham, Id. 538 ; 1 Hale P. C. 303 ; li. v. Daw- 
 ber, 3 Stark. R. 34 ; R. v. Jarvis, 2 M. & Rob. 40. See also by Lord EUenborough. C. J., 
 in R. v. Jones, *2 Campb. 133 ; 81 How. St. Tr. 325 ; 7 T. R. 600. S. P., by Lord Denman, 
 C. J., in R. V. Hastings, 7 C. & P. 15.2, and by Alderson, B.. 7 C. & P. 373. On tho general 
 subject, as to the evidancs of accomplices, with reference to the point of confirmation, 
 see Sir T. Withorington's argument, 5 How. St. Tr. 176 ; Discussion in Sayer's Case, 16 
 How. St. Tr. 153 ; Sir B. Atkyn's remarks, 9 How. St. Tr. 731, as to the evidence of an 
 indicted acoarap'ics ; Murph^f's Case, 19 How. St. Tr. 703 ; Sir J. Copley's remarks in , 
 Watson's Case. 33 How. St. Tr. 513 ; L^rd Ellenborough's charge in Watson's Case, 33 
 How. St. Tr. 533 ; Lard TjnderJan's charge in the oases of the Cato street Conspiracy, 33 
 How. St. Tr. 689. 
 (Tha formjr note, embracing an extract from Amos & Phillipps, editors of the eighth 
 Vol. I. 12 
 
90 Of the Confirmation of Accomplices. [ch. vi. 
 
 *H1 *But great injustice would result, if it were the practice of juries to 
 convict upon the unsupported evidence of accomplices, whose testi- 
 mony, though admitted from necessfty, ought always to be received with 
 great jealousy and caution. For upon their own confession they stand 
 contaminated with guilt ; they admit a pai'ticipation in the very crime 
 which they endeavor, by their evidence, to fix upon the prisoner; they are 
 Sometimes entitled to a reward upon obtaining a conviction, and always 
 expect to earn a pardon. Accomplices are therefore of tainted character, 
 giving their testimony under the strongest motives to deceive ; and a jury 
 would not, in general, be justified in giving to such witnesses credit for a 
 conscientious regard to the obligation of an oath. Sometimes they may be 
 tempted to accuse a party who is wholly innocent, in order to screen them- 
 selves or a guilty associate ; and if the prisoner has "been their participator 
 in crime, they may be disposed to color and exaggerate their statement 
 against him, with a view to hide their own infamy, or by obtaining his con- 
 viction, to protect themselves from his vengeance, and secure the expected 
 benefit. (1) The doctrine, therefore, of a conviction being legal upon the 
 unsupported evidence of an accomplice has been greatly modified in prac- 
 tice ; and it has long been considered, as a general rule of practice, that the 
 testimony of an accomplice ought to receive confirmation ; and that, unless 
 it be corroborated in some material part by unimpeachable evidence, the 
 
 presiding judge ought to advise the jury to acquit the prisoner. (2) 
 *112 *The practice of requiring confirmation has been stated not to 
 extend to cases of misdemeanors; (3) but such distinction, for which 
 there appears to be no sound reason, if it ever prevailed, no longer 
 exists. (4) 
 
 edition of tliis work, has been embodied in the text. See Note 35, Part I, Cowen & Hill's 
 Notes, 3d edit. ; the latter part of the note follows on a subsequent, page. 
 
 It is certainly the province of the jury to determine the weight and credibility of the 
 evidence submitted to them (State v. Brown, 3 Strobh. 508 ; and it is as clearly the duty 
 of the court to instruct them that the testimony of an accomplice, requires confirmation. 
 Eay V. State, 1 Iowa, 316.) 
 
 . (1) See Lord Hale's remarks on Tongue's Case, 1 Hale P. C. 304. In the earlier state 
 trials, the protection and countenance afforded by the judges to accomplices, spies and 
 informers was carried to a shameful length. The language of Lord Holt, as reported in 
 the trials for the Assassination Plot, ma.Y probably be thought, at the present day, too 
 favorable to accomplices. See particularly Charnock's Case, 13 How. St. Tr. 1454. 
 
 (3) Se3 the cases collected and statedin the text, infra. On the subject of the Evidence 
 of Accomplices, see a tract written by an eminent Irish judge, and published in 1886, 
 ■which contains an elaborate examination into the origin and history of this practice. 
 According to the view of this learned writer, the practice of requiring confirmation 
 cannot be tracedback more than half a century. And he observes, that in the earlier 
 cases which have been referred to as authorities for the practice, nothing can be found 
 which leads to the inference of any general regulation on the subject, and that the 
 credibility of an accomplice, whether confirmed or unconfirmed, appears to have been 
 treated as a question for the jury. See Tongue's Case, C How. St. Tr. 336 ; by Sir 0. 
 Bridgman, 1 Hale P. C. 334. See also E. v. Charnock, 12 How. St. Tr. 1454. In this 
 case, almost the only material witnesses were accomplices. The observations of Lord 
 Holt, as to their competency have been cited in the text, ante, p. 90; they were said by 
 Lord Ellenborough, C. J., in R. v. Despard, 28 How. St. Tr. 488, to comprise in a few 
 words »he good sense and sound law on the subject. In R. v. Rudd (Cowp. 339), Lord 
 Mansfield, C. J., said " the single testimony of an accomplice is sMomoi sufficient weight 
 with the jury to convict the offender." 
 
 Note 57. — (If the court refuse to instruct the jury that the unsupported testimony of 
 an accomplice is not sufficient to justify a conviction, or if the jury find the prisoner 
 guil ty upon such testimony, tliis is a sufflcieilt ground for a new trial. Kay v. State, 
 »mra^ 
 
 In Hill's Case (1 C. H. Roc. 57, 59), it is said a conviction may follow, though the 
 testimony of the accomplice stand uncorroborated. Quere. And see United States v. 
 Tom Jones, 3 Wheel. Cr. Cas. 451 to 401. A case of piracy before Thompson, J. 
 
 (3) By Gibbs, A. O., in B. v. Jones, 31 How. St. Tr. 815. 
 
 (4) See R, v. Farler, 8 C. & P. 106. 
 
 The testimony of an accomplice requires confirmation, because he stands before the 
 
SEC. II.] Of the Confirmation of AceompUces. 91 
 
 *H3 *It has been laid down, that tMs practice of requiring some Gonfirm- 
 ation of an accomplice's evidence, must be considered in strictness as 
 resting only upon the discretion of the presiding judge.(l) And this, 
 indeed, appears to be the only mode in which it can' be made reconcilable 
 with the doctrine already stated, that a leffal conviction may take place 
 upon the unsupported evidence of an accomplice. But it may be observed, 
 the practice has obtained so much sanction from legal authority, that a 
 deviation from it in any particular case would be justly considered as of 
 questionable propriety. Although the judge does not in express language 
 declare, that a case depending on the unconfirmed evidence of an accomplice 
 is insufficient in la,w to warrant a conviction, but merely advises the jury 
 not to place credit on the evidence ; yet, as it is not likely an instance 
 should arise in which the jury would disregai:d the advice so given, and 
 convict the prisoner, the substantial result appears to be nearly the same-as 
 if the practice bad depended upon a rule of law, instead of being only the 
 exercise of the discretion of the presiding judge. The only distinction 
 appears to be, that if the judge were to submit a case of this nature to the 
 jury without any such recommendation, and a conviction ensued — or if 
 a jury were to convict in opposition to the recommendation of the judge 
 — it could not properly be said in ejther case, consistently with the author- 
 ities on the subject, that the conviction would be illegal. 
 
 The necessity for confirmation will depend in some measure upon the 
 
 court a discredited witness ; but there is an evident distinction between a witness who is 
 self-discredited as guiHy of an infamous crime, and one who is only guilty of a misde- 
 meanor that subjects him to a moderate fine. The State v. Quarles, 8 Eng. (13 Ark.) 
 307. A man may be convicted of petit larceny, and still remain a competent witness. 
 5 Hill, 360. And a conviction for that offense in another state, will not render the convict 
 incompetent. Uhl v. The Commonwealth, 6 Gratt. 706. And where two persons are 
 indicted and tried separately for a misdemeanor, there does not seem to be any reason 
 for excluding. them as witnesses on the trial of each other. 
 
 Note 56. — When parties jointly indicted may be mtnesses, for or against eacli other. — 
 It seems to have been assumed, in one case, that though an accomplice and his associates 
 be jointly indicted, yet, if the latter be separately tried, tlie accomplice may be a witness 
 for the state, though nOt for the prisdners ; and it was held, that the State's attorney, 
 but not the prisoners, may elect to try separately with a view to use the accomplice as a 
 witness. State v. Calvin, R. M. Charlt. 151. But before the state's attorney can in such, 
 case use the accomplice as a witness, ought not the attorney to .move, and have him 
 acquitted, or at least enter a noUe prosequi against him 1 See Rex v. Rowland, Ry. & 
 Mood. N. P. Rep. 401, and the note. Does not the case come within the general rule, 
 tbat 80 long as the witness's name stand on the record, he being thus designated as a 
 joint party and subject to be tried as such, he is incompetent? In respect to" the 
 prisoner's right to have one jointly indicted with him sworn as a witness in his behalf, 
 he must in all cases, whether he be tried jointly with, or separately from, the witness, 
 who has not even been arraigned, wait for a conviction or acquittal of the witness. The 
 People v. Williams, 19 Wend. 377 ; State v. Blennerhassett, Walker's Rep. 7, 16, 17. If 
 there be no evidence against him, the court may direct an acquittal, or order the defend- 
 ant to be discharged. 3 R. S., 616, § 19 (2d ed.) ; State v. Blennerhassett, Walker's Eep. 
 7, 16, 17. But, until that be so, the rule of exclusion applies, even where the trials are 
 ordered for different counties. State v. Mills, 2 Dev. 420 ; Carter's Case, cited Id. 422. 
 And it makes no difference that the defendants have pleaded separately. State v. 
 Mooney, 1 Yerg. 431. It is put in the text that, unless acquitted, he should not only be 
 convicted, but fined, before he is competent. The American cases usually put the case 
 of a conviction ' merely as restoring competency, without its being followed by the 
 sentence of the court. But Buffin, J., in State v. Mills (3 Dev. 423),. says the practice in 
 North (/'arolina has accorded with the English strictness. 
 
 In Amos and Phillipps' ed. of Phil. Ev., p. 70, note 3, the case of Rex v. Lafone 
 (5 Esp. 160), is examined, and several arguments urged in favor of receiving one joint 
 indictee as a witness for another, after he has suffered. judgment by default. 'The learned 
 editors urge, what it seems difficult to deny or explain away, that there exists no 
 objection beyond what goes to his credit, any more than in the case of an accomplice. 
 The same reasoning would seem to apply where the witness pleads guilty, especially in 
 sU those courts which do not exclude witnesses solely on the ground of their being 
 pbixties. 
 
 (1) By Lord EUenborougU, C. J., in R. v. Jones, 3 Campb. 132. 
 
92 Of the Confirmation of Aceomplices. [pa. vi. 
 
 nature and circumstances of the crime. (1) Upon an indictment against a 
 man for committing an unnatural oifense with his own wife, if it appears 
 that she consented to tie act, she becomes an accomplice, and her evidence 
 will require confirmation. (2) In a case where the prisoner was indicted for 
 manslaughter at a fight, it was objected, that all pefsons who had been 
 present were principals in the second degree, and that their evidence ought 
 to receive confirmation, as in the case of accomplices, but the judge was 
 clearly of opinion they were not such accomplices as would require any 
 further evidence to confirm them. (3) Such persons are manifestly not in 
 the situation of accomplices. 
 
 The practice of requiring confirmation, when the case for the prosecution 
 is supported by an accomplice, applies equally when two or more accom- 
 plices are brought forward against a prisoner. In a case in which 
 *114 *two accomplices spoke distinctly to the prisoner's guilt, the judge 
 directed the jury, that, if their statement were the only evidence 
 against him, he could not advise them to convict ; observing that it was not 
 usual to convict on the evidence of one accomplice without confirmation, and 
 that, in his opinion, it made no difierence (with respect to the practice and the . 
 propriety of convicting), whether there were more aceomplices than one. (4) 
 
 It appears to have been held, in one c^se, that a confirmation by the wife 
 of an accomplice would be insufiicient : it was said, that the wife and the 
 accomplice must be considered as one for this purpose. (5) In that case, 
 the circumstances of the case might have been such as to warrant this 
 decision. But it may often happen, that the evidence of the wife is so free 
 from all suspicion, so independent of the evidence of the husband, so 
 manifestly unconcerted and uncontrived, and so undesignedly corroborative 
 of his evidence, that it might be proper not to consider the accomplice and 
 his wife as one, but to act upon her evidence as sufiicient confirmation. 
 
 Extent of confirmation. From the anomalous nature of the rule of 
 practice which requires confirmation, more especially from the circumstance 
 that the rule is considered as resting upon the discretion of the presiding 
 judge, and that it appears in fact to have originated in the exercise of such 
 discretion, it might be expected that some difference of opinion would arise 
 as to the nature and extent of the necessary confirmation. It is clearly 
 unnecessary that the accomplice should be confirmed in every circumstance 
 which he details in evidence^ for there would be no occasion to use him at 
 all as a witness, if his narrative could be completely proved by other 
 evidence free from all suspicion. (6) The rule upon the subject which has 
 generally been laid down, is, that if the jury are satisfied that he speaks 
 truth in some material part of his testimony, in which they see him con- 
 firmed by unimpeachable evidence, this may be a ground for their believing 
 that he also speaks truth in other parts, as to which there may be no con- 
 firmation. (7) So far all the authorities agree; the only point on which any 
 
 (t) See R. V. Jarvis, 2 Mo. & R. 40, 42. 
 
 (2) R. V. Jellyman, 8C. & P., GO I. 
 
 (3) R. V. Hargraves, 5 '). & P., 170. by Pattcsfin, J. 
 
 If the parties present are confederates and engaged in a common deeigrn, tliey are all 
 equally guilty. Green v. State, 18 Miss. 382 ; Kegina v. Greenwood, 9 Eng. Law & Eq. 
 R. 535. If they aid and encourage the commission of the crime, they arc gtilty as acces- 
 sories, though not present. Hately v. State, 15 Geo. 340 ; Brennan v. Thb People, 15 Ills. 
 511. And if they come together on a common design to assist in the perpetration of tho 
 crime, tliey are guilty. McCarty v. State, 26 Miss. 299. ' 
 
 (4) R. V. Noakes, 5 C. & P. 830, before Littledale, Holland and Alderson, J's. 
 
 (5) R. V. Neale, 7 C. & P. 168, by Park, J. 
 
 (0) See report of the Trials at York, on Special Commission, 1813, pp. 16, 17, 50, 150, 
 165, 201, particularly the charges of Thompson, C. B., in R. v. Swallow, and of Le Blanc, 
 in R. V. Mellor. . 
 
 (7) Sae authorities cited in the preceding note, and Despard's Case, 28 How. St. Tr. 488, 
 and by Lord EUunborough, C. J., 31 How. St. Tr. 325 ; R. v. Barnard, 1 C. & P. 88. 
 
SEC. jxj Of the Confirmation of Accomplices. 93 
 
 difference of opinion has been supposed to exist, relates to the particular 
 part or parts of the accomplice's' testimony, which ought to be confirmed. 
 
 In some cases it has been considered, that the confirmation ought to be 
 such as affects the individual prisoner, and connects him immediately and 
 directly with [the crime; in other cases, this description of confirma- 
 *115 tion has *been considered unnecessary, and it has been held, that 
 confirmation of the accomplice in some parts of his testimony, which 
 do not connect the prisoner directly with the crime, may be suflioient to 
 entitle the accomplice to credit, and to warrant the judge in leaving the 
 ca;e to the jury without a recommendation to acquit. 
 
 In the first case in which this question appears to have been expressly 
 raised, two prisoners had been convicted on the evidence of an accomplice, 
 who was confirmed as to the circumstances attending the' offense, but not 
 as to the identity of the prisoners, and the judges were unanimously of 
 opinion, that the conviction was good, upon the general ground already 
 mentioned ; namely, that a prisoner may legally be convicted upon the 
 unconfirmed evidence of an accomplice. (1) In a case occurring shortly 
 afterwards, a similar decision took place, and, as it appears, on the same 
 ground. At the trial, the court observed, that the practice of rejecting an 
 unsupported accomplice was rather a matter of discretion with the judge 
 than a rule of law, and the case having been left to the jury, and the pris- 
 oner convicted, the judges afterwards held the conviction good.(2) It was, 
 however, said in this case that the witness (a receiver) was rather an acces- 
 sory after the fact than an accomplice in the fact. 
 
 The same general doctrine was laid down in the case of the King agt. 
 Jones, (3) by Lord Ellenborough, C. J., who th^re referred to a case in which 
 the judges were of opinion, that four prisoners had been properly convicted 
 upon the testimony of an accomplice, whose evidence had been confirmed as 
 to three of the prisoners, but not as to the. fourth. And in the report of the 
 York trials under a special commission, it is laid down by Thompson, C. B., 
 that confirmation need not be of circumstances which go to prove, that the 
 accomplice speaks truth with respect to all the prisoners (when several are 
 tried), and with respect to the share they have each taken in the trans- 
 action; for if the jury are satisfied that he speaks truth in those parts in 
 which they see unimpeachable evidence brought to confirm him, that is a . 
 ground for them to believe that he speaks also truly with regard to the 
 other prisoners, as to whom there may be no confirmation. (4) 
 
 Again; in the later case of The King agt. Dawbar,(5) where an accom- 
 plice was confirmed as to one of several prisoners jointly indicted, but not 
 as to the others, Bayley, J., told the jury that if they were satisfied, from 
 the confirmation, that the accomplice was a credible witness, they might 
 act on his testimoney with respect to the prisoners as to whom he 
 *116 had not '*been confii-med, and they were convicted. In Birkett's 
 Case, (6) the judges were of opinion that an accomplice did not 
 require confirmation as to the person charged by him, if he were confirmed 
 in the other particulars of his statement. And m the case of The King agt. 
 Hastings, (7) at the Old Bailey, before Lord Denman, C. J., Park, J., and 
 Alderson, B., when the counsel for the prosecution stated that he sliould not 
 be able to confirm an accomplice, who was to be called as a witness, with 
 regard to the persons of the prisoners, but only as to the general circum- 
 
 (1) R. V. Atwood, Leach C. C. 521, cit. 7 T. R. 609. 
 ""■ (3) B. v. Durham, Leach C. C. 'j38. See, also, R. v. Smith, reported in a note to the 
 last case. 
 
 (3) 2 Carapb. 133 ; 81 How. St. Tr. 335. 
 
 (4) R. V. Swallow, afe ante, p. 114. 
 
 (5) 3 Stark, R. 34. And see B. v. Barnard, 1 C. & P. 88, bj HuUock, B. 
 
 (6) Russ. & By. C. C. 252. 
 
 (7) 7 C. & P. 152. 
 
94 Of the Gonfirmcaicmiof \4^ccompliaes. [en. vi. 
 
 stances of the case, Lord Denman said he considered, and' he believed his 
 learned brothers concurred with him, that it was altogether for the jury], 
 who might, if they pleased, act on the evidence of the accomplice without 
 confirmation ; but observed, that' a person so situated would not be likely 
 to receive any great degree of credit. 
 
 In the case of The King, agt. Addis, (1) an accomplice, who was the 
 principal witness, was corroborated as to collateral facts, none of which 
 tended to connect the prisoner with th« accomplice or with the transactioni 
 Patteson, J., observed that the corroboration ought to be as to some fact 
 or facts, the truth or falsehood of which would go to prove or disprove the 
 offense charged against the prisoner. And in the later case of The King 
 agt. Wilkes,{2) on an indictment against two persons, Alderson, B., pointed 
 out the distinction between confirmation as to the circumstances of the 
 felony, and confirmation affecting the individuals charged; the former only 
 proves that the accomplice was present at the commission of the offense; 
 the latter shows that the prisoner was connected with it. In summing 
 up, the judge observed that confirmation merely as to the circumstances of 
 the felony was really.no confirmation at all; that it was true, the jury might 
 legally convict on the evidence of an accomplice only, if they could safely 
 rely on his testimony; but that he always advised juries not to act on the 
 evidence of the accomplice; unless confirmed as to the particular person 
 charged with the offisnse. After adverting to the facts of the case as affects 
 ing the two prisoners, the same judge stated to the jury, that if they 
 thought the accomplice was not sufficiently confirmed as to one, they would 
 acquit that one ; and that if they thought, he was confirmed as to neither, 
 they would acquit both. 
 
 Where a thief and receiver were jointly iadicted,(3) the same learned 
 judge expressed his opinion that confirmation as to the thief did not advance 
 the case against the receiver. And in a former, case of a similar descrip-. 
 *117 tion,(4) where there was a slight confiirmation as to thfi receiver, *but 
 none as to the principal felon, Littledale, J., thought the case failed 
 altogether, and that the accomplice ought to be confirmed as to the princi-. 
 pal before the jury could be asked to believe the witness's testimony as to 
 the guilt of the receiver. 
 
 In the case of The King agt. Farler,(5) Lord Abinger, C. B., said : It is 
 a practice which deserves all the reverence of law, that judges have uni- 
 formly told juries, that they ought not to: pay any respect to. the testimony 
 of an accomplice, unless the' accomplice is corroborated; in some material 
 circumstance. Now, in my opinion, that corroboration ought to consist ins 
 some circumstance that affects the identity of the party accused. A man, 
 who has been guilty of a crime himself wSk always be able to relate the^ 
 facts of the case, and if the confirmation be only on the truth of that history, 
 without identifying the persons, that is really no corroboration at all. The 
 danger is, that when a man is fixed, and knows that his own guilt is detected, 
 he purchases impunity by falsely accusing others."(6) 
 
 On a review of the cases above cited, the result that may be deduced from 
 them seems to be, "That, on the trial of a prisoner against whom an accom^ 
 plice appears as witness, there should be (in order to, warrant a judge ift 
 advising the jury to give credit to such a witness, and to warrant the jury' 
 in convicting) some confirmatory evidence ; that is, some proof independent 
 of the evidence of the accomplice, from which it may be reasonably inferred 
 
 (1) 6 C. & P. 388. 
 
 (3) 7 C. & P. 271. See, also, B. v. Webb, 6 C. & P; 595. 
 
 (3) R. V. Moores, 7 C. & P. 270. 
 
 (4) R. V. Wells, M. & M. 826. 
 
 (5) 8 C. & 1'. 106. 
 
 (6) See, further, K. v. Dyke, 8 C. & P. 261 ; R. v. Birkett, Id. 732. 
 
SEC. ni.] Of the Euidence of Informers, dc. 95 
 
 that the prisoner was concerned mth the accomplice in the commission of 
 the crime. And on the trial of several prisoners charged as being jointly 
 concerned in a crime, for warranting the jury in convicting all the prisoners 
 there should he some unimpeachable independent evidence, from -which the 
 jury may reasonably be satisfied that the accomplice speaks truly as to all 
 the prisoners, and^ that they were all jointly concerned with him. But it 
 would be going- much too far, to bind the discretion and judgment either of 
 a judge or a jury by any fixed, rigid rule as to the quantity or kind 
 of confirmatory evidence which ought to be given. This, however, is set- 
 tled — that the confirmation required should not be a confirmation merely 
 of those parts of the narrative which implicate the accomplice alone, and 
 which may be true without involving the prisoners in any share of the 
 transaction ; but such a corroboration, by unimpeached evidence, as may 
 satisfy the jury that those persons whom he charges with a participation 
 in the crime were, in truth, as he represents, his confederates and associates in 
 guilt. It appears to be settled also, by the authorities before cited, that the 
 question, whether evidence brought forward to confirm, the accomplice is a 
 satisfactory and sufficient confirmation, is a question which the jury, and 
 the jury only, are to dfetermine. 
 
 *118 *SECTION m. 
 
 Of the JEvidence of Informers and Self-Discrediting Witnesses. 
 
 1. Informers.. There is another class of witnesses who cannot properly 
 be considered as coming within the description of accomplices, or as par- 
 taking of their criminal contamination — namely, persons who have entered- 
 into communication with conspirators, with an original purpose of discover- 
 ing their secret designs, and of disclosing them for the benefit of the public. 
 (1) The existence of such original purpose on their part is best, evinced by 
 a conduct which precludes; them from wavering or swerving from the dis- 
 charge of their duty, if they might otherwise be disposed so to dio ; as when 
 the witness voluntarily makes an early disclosure, and thenceforth acts in 
 pursuance of directions given to hiin as to the part which he is to bear 
 in the general confederacy. Such a witness is not to be considered in the 
 light of an accomplice, although, perhaps, on other grounds, no small degree 
 of prejudice of disfavor may attach to him ; for certainly, no man of honor 
 or right feeling would continue to associate with his companions, apparently 
 forwarding the purposes of a conspiracy,, with the intention aftGrwards of 
 betraying and giving them up to justice. Whatever may be the merit; or 
 demerit of this species of conduct on other grounds, such a witness is not, 
 strictly speaking, an accomplice. 
 
 The objection to the competency of informers, on the ground of being 
 entitled to a penalty on the conviction of the ofiender against whom they 
 give infortoatfion, has been considered in another part of this work. (2) 
 
 2. Witness alleging his own dishonesty. Mr. Justice Lawrence observes,, 
 (3) that the constant practice of examining accomplices shows that the mere 
 
 (1) See Lord EUenborough's address to the jury in Despard'a Case, 28 How. St. Tr. 489. 
 
 On the trial of an indictment against the prisoner for a conspiracy to procure property 
 under false pretenses, the act*and representations of a supposed agent or joint conspirator 
 Cannot be given in evidence until it is first shovrn that he acted by the procurement of the 
 prisoner, or at his instigation. But though such testimony be improperly received", 
 the error will be cured by a subsequent direction to the jury to disregard such evidence. 
 The People v. Parish, 4 Denib R. 153, 
 
 (3) Supra, ch. 4 § 2. 
 
 (3) Jbrdaine v. Lashbrooke, T T. E. 601. 
 
96 .Of the Miidence of Informers and [ch. vi. 
 
 circumstance of a man's having represented himself as having done things 
 inconsistent with common honesty is not sufficient to reject his testimony, 
 however it may weaken and impeach it. The maxim of the civil law — 
 nemo allegans suam turpitudinem est audiendus — would not admit of such 
 
 a practice. (1) But this maxim is of a nature so exclusive in its 
 *119 operation, and at the same time *so vague and undefined, that our 
 
 courts of law have properly rejected it as a rule of evidence, although 
 in some old cases it appears to have been acted upon. (2) 
 
 In the case of "Walton v. Shelly, (3) which was an action upon a bond, 
 given by the defendant in consideration of the plaintiff's delivering 
 
 (I) " Testes qui adveraus fidein suam testationis vacillant, audiendi non sunt," was also 
 the maxim of the civil law. Domat, Book 3, tit. 8, § 6, art. 12. 
 
 (3) See Titus Gates' Case, 10 How. St. Tr. 1185 ; Canning's Case, 19 How. St. Tr. 633. 
 
 (3) 1 T. R. 396. 
 
 (A person who transfers a negotiable note or draft as good business paper, whether by 
 indorsement or delivery, is precluded, is estopped from setting xip the defense of usury to 
 an action brouojht on the instrument, or for the recovery of the money received on it. 
 McKnight v. Wheeler, 6 Hill, 493 ; Edwards v. Dick, 4 Barn. & Aid. 313. But it has been 
 held that the drawer of a bill payable to his own order and accepted for his accommo- 
 dation, who transfers it by indorsement usuriously without representing it to be business 
 paper, may interpose the defense of usury, and that the acceptor may also set up that 
 defense. Clark v. Lisson, 4 Duer, 408. In Edwards v. Dick {supra), it did not appear 
 that the defendant, the drawer of the bill and payee named in it, who transferred it by 
 indorsement after acceptance, made any representation in regard to it except what was 
 implied by the transfer for a good consideration ; and so in McKnight v. Wheeler, it did 
 not appear that the payee who transferred the note by indorsement made any represen- 
 tation except what was implied by the transfer for value, for the face of the note ; and in 
 each of those cases the court treated the transfer as a new contract, not within the 
 statutes of usury and gaming. The statute pronounces void all notes, bills and other 
 securities given for an usurious consideration ; but the law does not allow the maker of 
 a note, who has represented it to bo good business paper and thereby induced another 
 person to purchase the same, to interpose the defense of usury. Middletown Bank v. 
 Jerome, 18 Conn. 443. And when the holder and apparent owner sells negotiable paper 
 at an under-value representing it to be good 'ousiness paper, the transaction is not usurious ; 
 if sold without indorsement, the vendor is liable thereon for the money given therefor ; 
 and if sold by indorsement, the indorser is precluded from setting up the defense of 
 usury. Holmes v. Williams, 10 Paige Ch. R. 336. The case of Clark v. Lisson, holds 
 that the vendor is not estopped, unless he has made some positive representation that the 
 security was business paper ; but it seems clear that the vendor is liable for money had 
 and received where he sells worthless paper for value, concealing the fact rendering it 
 valueless.) 
 
 Note 58. — The decisions upon this subject in the United States are far from being 
 uniform. Not only have the different courts divided upon the question whether the loose 
 maxim adopted in Walton v. Shelley should be applied in any case, but those who have 
 applied it have differed in measuring the extent of its application, and have sometimes 
 been inadvertently, and sometimes confessedly inconsistent with themselves. The only 
 way, therefore, in which the character of these decisions can be presented, would seem to 
 be by a consideration of them as they began and have gone forward in each distinct 
 court. 
 
 In the United States courts, the case of Walton v. Shelly has been followed, and still 
 maintains its ground. United States v. Dunn, 6 Peters, 51. See per Chase, J., in Wilson 
 V. Lenox, 1 Cranch, 201. 
 
 The following collection of the decided cases, arranged in chronological order for each 
 state will exhibit the opinions of the courts of the several states, so far as they are 
 ascertained, and the various modifications which the doctrine has received : 
 
 New York. The payee and indorser of a promissory note', who had been discharged 
 under the bankrupt law of the United States, and had released all his interest, was held 
 to be an incompetent witness for the maker, or a subsequent indorser, to prove that the 
 note was g^ven for an usurious consideration. Winton v. Saidlor, 3 John. Cas. 183. And 
 see Steinback v. Rhinelander, Id. 369. But an indorser of i^ promissory note was held a 
 good witness for the maker, in a suit against him by the indorsee, to prove the indorse- 
 ment was made after the note became due, with a view to let in proof impeaching it. 
 Baker v. Arnold, 1 Caines' Hep. 358. 
 
 A. made a promissory note, payable to C, who indorsed it for the accommodation 
 
 *130 of A., which *uoto A. subsequently negotiated to S. at an usurious rate of interest. 
 
 To pay this note, when it became due, A. drew two other notes payable to C. and 
 
SEC. in.] Self-Discrediting Witnesses. 97 
 
 indorsed by him, wliich A. by the order of S. delivered to R. & H., who were acquainted 
 ■with the previous transactions. These notes were protested in the name of R. & H. for 
 non-payment. C. tlien made two other notes, paya;ble to R. & H. or order, for the pur- 
 pose of taking up the protested notes. In an action by R. & H, against C. on one of 
 the notes last made, A. was offered by the defendant as a witness to prove the facts, and 
 was released by C, the defendant. Held, that he was not a competent witness to inval- 
 idate the note of which he was maker, and that it was immaterial whether the suit was 
 directly on the note alleged to have been usurious, or whether it comes in question 
 collaterally, the cases being considered by the court as the same, because they involve in 
 them the validity of the original notes. Coleman v. Wise, 2 John. Rep. 165. And see 
 Cummings v. Fisher Auth. N. P. Rep. 1, 7, and note a, at p. 9. 
 
 A party to negotiable paper may be a witness to prove facts subsequent to the due 
 execution of the instraraent, which wUl destroy the title of the holder, or which will cast 
 on him the burden of showing himself a hona fide holder. Thus, where a note wag 
 drawn by H". payable to M., and M., after indorsing it, delivered it t6 a third person to be 
 presented to the bank for discount, who, instead of offering it at the bank, fraudulently 
 put it into the hands of a broker, it was held that M., the indorser, was a competent wit- 
 ness to prove these facts. WoodhuU v. Holmes, 10 John. Rep. 331. So where a note, 
 before it became due, was paid to the payee by the maker, who took a receipt in full, and 
 the note was afterwards, before it became due, indorsed by the payee and by the indorsee 
 to the plaintiff, who was informed of the payment before receiving the note, it was held 
 that the plaintiff took it subject to such payment, and that the first indorsee was a 
 competent witness to prove the payment of the note. White v. Kibbing, 11 John. 
 Rep. 128. 
 
 The payee of a note having indorsed it to the plaintiff upon an usurious consideration, 
 he was held an incompetent witness, in an action against the maker, to ^ prove the usury, 
 and it was held to make no difference , that the plaintiff knows the fact of usury, or was 
 a party to it. Mann v. Swann, 14 John. Rep. 270. (Thomas v. Murray, 32 N. Y. 605.) 
 
 A note was indorsed by the defendant for the accommodation of the makers, who were 
 theii in good credit. Before negotiating the note, they became insolvent, and the defend- 
 ant then directed them not to part with it, which they promised. They afterwards 
 passed it to the plaintiffs, with fall notice of all the circumstances, in satisfaction of a 
 debt due from them to the plaintiffs. The plaintiffs having brought an action on the 
 note against the indorser, held, that the plaintiffs were not bona fide holders, and could 
 not support the action ; and that as the defense rested on matters arising subsequent to 
 the execution of the note, one of the makers was a competent witness to defeat the 
 recovery. Skelding v. Warren, 15 John. Rep. 270. See Hubby v. Brown, 16 Id. 70. 
 Such subsequent fact, however, must not . involve the moral turpitude of the witness. 
 The meaning of the rule that a party to a negotiable instrument cannot be a witness to 
 invalidate it, is, that one whose name appears on the paper shall not be admitted to say 
 that it was tainted with illegality or fraud when it passed from his hands. Agreeably to 
 this rule, it was held that a second indorser is competent to prove that the third indorser 
 had said that he had received and discounted the note on usurious interest. Powell v. 
 Waters, 17 John. Rep. 176. But where an agreement was made between the maker 
 and payee, at the time of the execution of the note, that it should be deemed void and 
 returned if the maker did not take certain goods of the payee for which the note was 
 given, and the payee immediately indorsed the note to the plaintiff to secure a debt, at 
 the same time informing him of the condition upon which the note was given ; in an 
 action against the m^ker, the indorser was held competent to prove that the plaintiff had 
 notice of the conditions, and that the maker did not take the goods of the payee, so that 
 the note became void ; because, the indorser was not called to prove the note void at its 
 inception, but to show that it became so by the subsequent determination of the defendant 
 not to take the goods. M'Fadden v. Maxwell, 17 John. Rep. 188. 
 
 The plaintiff requested the defendants and R., to lend him their names to a note for 
 2,000 dollars, for the purpose of rising money for the accommodation of the plaintiff, 
 and it was agreed that R. should make the note payable to the defendants, to be indorsed 
 by them ; and the defendants accordingly indorsed a blank paper and delivered it to the 
 plaintiff to be iilled up by R. with a note for 2,000 dollars, which the plaintiff, 
 *121 without the privity or consent of the. defendants (the indorsers), procured R. to 
 iill up with a note for 4,000 dollars ; held, that D., a subsequent indorser, and E., 
 the maker, were competent witnesses to prove the fraud in the filling up of the note, the 
 reason and policy of the rule being to guard ai4d protect bona fide holders of negotiable 
 paper, which they have honestly received in the usual course of businjMs, and not for the 
 benefit and protection of the party who is the very person that committed the fraud in 
 the inception of the note. Myers v. Palmer, 18 John Rep. 167. So where S. made a note 
 to C, who indorsed it to the plaintiff on which the plaintiff received five per cent, above 
 the legal interest, and on the note becoming due, C. procured D., the defendant, to make 
 another note payable to him, which he indorsed to the plaintiff to take up the former 
 note ; in a suit by the plaintiff against D., the maker of the last note, it was held that C, 
 the indorser of both notes, was a competent witness to prove the usury, the plaintiff 
 Vol. I. 13 
 
9$ Of the M}idence of Informers and [ch. vi. 
 
 heihg himself th* usurter, aud of course having notide that the origSBftl note was'lnfected 
 •when he received it, and the mere change 6f seicurities nt)t purging the original Illegal 
 Consideration. Tuthill v. Davisi, SO'Jolm. Rep. 285. 
 
 In an action by the holder against the mater of a promissorj- note, the defendant 
 Offered to prove by the payee that he, the payee, had no interest in the note, but took it 
 for the benefit and on behalf of the plaintiff, and immediately delivered it to the plaintiff, 
 advising him of all the facts relative to the making of the note, and upon what con- 
 sideration it was made ; held, that the payee vraS a competent witness to prov^ the note 
 Void for Usury, and that the case of Winton v. Saidler (cited suprcf), was not law. Staf- 
 ford V. Rice, 5 Cowen's Rep. 23. And so Whefe, in an action on a pTomisBory note by the 
 indorsees against the indorser, the defense was that the note was discounted by the plaint- 
 iff, computing the interest by the standard of thirty days to a moilth, and 360 days to a 
 year, it Was held that the maker was a competent witness to provb that fact. Utica Bank 
 V. Hillai-d, 5 Cowen's Rep. 153. 
 
 The rule formerly held by the Supreme Court, that one whofe name appears on nego- 
 tifible paper should not be received to testify that it was void ab initio, did not apply to 
 one who held the pjtper mold flde. Powell v. Waters, 8 Cowen's Rep. 669. 
 
 Where a member of a copartnership, without tlie knowledge or assent of the' other 
 partners, drew a note in the name of the firm, and having procured the indoi^ement of 
 the defendant, passed it to the plaintiffs for a debt due from him to the plaintiffs, it was 
 held that the indorser was not liable to pay the note, and that the partner who dre'^f the 
 note was a competent witness for the indorser to prove the defense. Williams v. Wal- 
 bridge, 8 Wend. Rep. 415. 
 
 Massachusetts. A grantor is not a competent witness to explain a latent ambiguity in 
 his own deed, even when he is not interested. Revere v. Leonard, 1 Mass. Rep. 91. But 
 see Baker v. Sanderson (3 Pick. Rep. 348), where it was decided that the grantor was a 
 competent witness to establish a collateral fact, as the situation Of the premises at the 
 time of the grant. * 
 
 A party to a negotiable security shall not be permitted to testify that at the time he 
 gstve it Currency, it was void. But he may testify to any facts happening afterwards. 
 Thus where, in an action by the indorsee against the indorser of a promissory note, the 
 defendant offered the maker as a witness to prove that before the note became due, he 
 paid to the plaintiff fifty dollars on account thereof, and gave him a, new note for the 
 balance, which was received in full satisfaction, the defendant having released the witness 
 from all demands on account of the note, it was held that he was competent. Warren v. 
 Merry, 3 Mass. Rep. 87. 
 
 A witness who had indorsed'his name in blank on a bill of lading, was called to prove 
 that he acted as agent for the "plaintiff, and it was objected that He should not be per- 
 mitted to falsify or invalidate his indorsement ; but the court said that the rule was con- 
 fined to negotiable instruments, and even if it extended to a bill of lading, the witness 
 was not called to invalidate his indorsement, but to explain it, aud held him competent. 
 Brown v. Babcock, 3 Mass. Rep. 29. 
 
 Where the grantee of land was called as a witness to prove that the conveyance was 
 made without consideration, and so void as to creditors, and was objected to on the 
 ground that he was incompetent to impeach a deed to which he was a party, the court 
 said that the Common law principle never Went further than to exclude a witness from 
 testifying to invalidate a security to which he had given a credit by his signature ; that 
 the late cases confined the rule to parties on negotiable pajier, who had by their own acts 
 given it a credit and currency, and held the witness to be Competent. HiJI v. Payson, 8 
 Mass. Rep. 559. 
 
 In an action by the indorsee of a note against the maker, whd offered the payee and 
 indorser as a Witness to prove that the note was made on an usurious contract, the 
 *122 court, on a full *consideration of the cases of Walton v. Shelley (1 Term Rep. 
 296), and of Buckland v. Tankard (5 Id. 578), ruled that the indorser could not be 
 admitted as a witness to prove the note usurious, it being to destroy his own contract. 
 Parker v. Lovejoy, 3 Mass. Rep. 565. The defendant made a promissory note payable to 
 C, who indorsed it in blank, and which, to raise money, they delivered to B., a broker, 
 who also indorsed in blank, and sold it to the plaintiff for an usurious consideration ; 
 held, that the indorsers were incompetent to prove the usury. Churchill v. Suter 4 Mass 
 Hep. 156. And see Putnam v. Churchill, Id. 516. 
 
 A bill of exchange was indorsed by the payees to A. B. as their agent for collection only ; 
 A. B. Indorsed it vyithout recourse to C. D. in trust for the payees ; in an action by C. D. 
 against the drawls, A. B. was received as a competent witness to prove the trust, and its 
 revocation by the payees, in order to defeat the action, these facts being subsequent to 
 the due execution of the note. Baricer v. Prentiss, 6 Mass. Rep. 430. 
 
 C. made a promissory note payable to the defendant, who indorsed it for the accommo- 
 dation of C, to enable him to raise money on it ; C. delivered the note to a broker, who 
 negotiated it to tlie plaintiff at an usurious rate of interest ; held, that C, although 
 released by the defendant, was not a competent witness to prove the usury, and thus 
 impeach a negotiable security to which he was u party. Widge'Ty v. Monroe, 6 Mass. 
 
SEC. m^] Sdf-Biscrediting Witnesses. 99 
 
 Rep. 449. And in an action by tlia indorsee of a note against Ime of two jioint makers, 
 the other maker was offered as a witness to prove the note usurious, the defendants hav- 
 ing released him ; but the court refused to admit him to impeach the note he had signed. 
 Jones V. Coolidge, 7 Mass. Eep. 199. 
 
 But where the payee of a note, who had indorsed it with a saving of his own liability, 
 was offered by the defendant, in an action by the indorsee against the maker, to prove an 
 alteration of the. note tvbsequent to its execution, lie was admitted. Parker v. Hanson, 7 
 Mass. Rep. 470. And where the drawer of a bill of exchange, at the time of dvawing the 
 bill, exhibited to the payee an absolute engagement on the pa*t of the djawee to accept 
 the bill, and at the same time communicated to him certain conditions sod restnctions to 
 which the engagement was subject ; in an action by the payee against the drawee, held, 
 that the drawer was a competent witness to prove such communication, and tlmt the con- 
 ditions mentioned were not performed, these circumstances not affecting the validity of 
 the bill in its inception. Storer v. Logan, 9 Mass. Hep. 55. 
 
 The defendant made a negotiable promissory note, payable to W., who indorsed it to 
 the pl^ntiff ; in an action on the note, the defendant offered to call the indorser to prove 
 usury in the transfer of the note by him to the plaintiff; held that hoiwas incompe- 
 tent to ppjve the usury. Manning v. Wheatland, 10 Mass. Rep. 502. 
 
 Where the maker of a note, before it became due, paid the sum due thereon to the 
 pa yee, who subsequently indorsed it to the plaintiff, held in an action by the plaintiff as 
 indorsee against the maker, that the indorser was a competent witness to prove such pay- 
 ment. Fitch V. HiH, 11 Mass. Rep. 286. 
 
 Where a deed of conveyance was alleged to have been made to compound a felony, it 
 was held, that the grantor was a competent witness to prove that fact, and that the rule 
 that a party to a paper is incompetent to invalidate it, applies only to negotiable instru- 
 ments. Inhabitants of Worcester v. Eaton, 11 Mass. Rep. 368. See al^, to the same 
 point, Loker v. Haynes, Id. 498, and Bridge v. Eggleston, 14 Id. 845. 
 
 It would seem from the remarks of the court in pronouncing judgment iu the case of 
 Butler V. Damen, that an indorser of a note could not be a witness to prove it to be 
 merely an accommodation note, and not given for any value. The court said, " the princi^ 
 pie of the case of Churchill v. Suter, is applicable here ; a party to a negotiable security 
 shall not be permitted to show facts antecedent to the transfer, whereby the holder is to 
 be defeated of his recovery." Butler v. Damen, 15 Mass. Rep. 32-?. 
 
 If the instrument, although negotiable in form, has not in fact been negotiated, but the 
 contest is between the original parties to the illegal transaction, the rule of exclusion 
 does not apply. Thus, in an action by the administrators of the payee of a note against 
 the administrators of the maker, a person who was a several promisor on the note as 
 surety was held to be a competent witness to prove that the note was given for an usuri- 
 ous consideration. Fox v. Whitney, 16 Maes. Rep. 1 18. 
 
 In assumpsit by the indorsee of a promissory note against the indorser, the defense 
 *133 was, that *the note was indorsed for the accommodation of the maker, and that, 
 subsequent to the indorsement, the maker procured theiiote to be discounted by 
 the plaintiff at a greater than the legal rate of interest, and the maker was offered by the 
 defendant to prove the usury ; but he was rejected by the court, on the ground that the 
 note was, for all substantial purposes, made at the time it was discounted and put into 
 circulation, and that therefore the usury was not a fact subsequent to the execution of the 
 note. Hartford Bank v. Barry, 17 Mass. Rep. 94. 
 
 One who had signed a negotiable promissory note, as agent for the prcnnisors, was held 
 to be incompetent, in an action by the indorsee against the promisors, to prove the note 
 usurious, chief Justice Parker, in delivering the opinion of the court, says : " The wit- 
 ness, although not answerable on the note, by reason of the signature, was the party who 
 gave it currency and put it into circulation. He must be considered as having declared, 
 by his signature, that the note was good and valid at the time it was made, for aught he 
 knew lo the contrary ; and he ought not to be allowed afterwards to say that his declara- 
 tion was false, and that the note was void, on account of facts known to bim at the time 
 it was signed." Packard v. Richardson, 17 Mass. Rep. 133. 
 
 Assumpsit on a promissory note made by the defendant, payable to W. P., and by him 
 indorsed to the plaintiff. The defendant offered the indorser as a witness, to prove that 
 the consideration of the indorsement was usurious ; but he was rejected, on the authority 
 of Manning v. Wheatland (dted mpra), as incompetent. Knights v. Putnam, 3 Pick. 
 Rep. 184. 
 
 In the same case, it was held that the indorser was not a competent witness to prove 
 that the note was pledged to the plaintiff as indorsee, as collateral security for a debt less 
 than the amount of it, although he had released all claims on the note^ 
 
 On a motion for a new trial, the court seem to question the correctness of the principle 
 as laid down in Manning v. Wheatland. Wilde, J.,'said, " the authority of that case had 
 been questioned, and the objection to the doctrine, as there laid down, was entitled to 
 great consideration. The witness was held to be incompetent, not because he was inter- 
 ested, but on the ground of legal policy, which will not permit one who lias transferred 
 a negotiable security as valid, to invalidate it by his testimony. But in that case, as in 
 
100 Of the Evidence of Informers and [ch. vi. 
 
 this, there was no illegalily in the original contract, and no usury except in the transfer, 
 in which the plaintiff himself was the gviilty party. No deception was, therefore, prac- 
 ticed on him." The case finally was decided on a different ground, the court holding that 
 the facts, when proved, did not constitute a defense to the action. See the case of Fo^ v. 
 Whitney (cited- »t<pr<»)i where the doctrine laid down in Manning v. M^heatland, seems to 
 be overruled. 
 
 PennsyUania. One who has signed an instrument in writing cannot be permitted to 
 give testimony to invalidate it. Thus, where in an action brought by the indorsee of a 
 promissory nota,.against the drawer, the pay^e, who had indorsed it, was called to prove 
 that the note was given without any consideration, it was held that he could not be a 
 witness to invalidate an instrument which he had signed. Stille v. Lynch, 2 Dall. 194. 
 And see Respublica v. Ross, Id. 339. 
 
 But this rule is confined to negotiable instruments ; and where a witness was offered 
 to explain a receipt which he had given, M'Kean, C. J., admitted him, and said, " The 
 general expression in Walton v. Shelley, must be limited as explained in Bent v. Baker 
 (3 Term Bep. J3, 36), and, therefore, since the witness is disinterested, he must be admit- 
 ted." Pleasants v. Pemberton, 3 Dall. 196. 
 
 The defendant, on the 6th March, 1776, gave a promissory note to A., payable on 
 demand, which he afterwards Indorsed to the plaintiff. On the 4th April, 1776, A drew a 
 bill gn the defendant for the amount of the note, payable at sight, to C, who immedi- 
 ately indorsed it to the plaintiff, and which the defendants afterwards accepted. In an 
 action on the bill against the defendant as acceptor, he offered the testimony of A. to prove 
 that the consideration of the note and the bill were the same, and that the note had been 
 previously paid. The court declared their opinion that this case was within the rule as 
 restrained in Bent v. Baker (3 Term Rep. 33, 36), but avoided giving any decided judg- 
 ment thereon, and declared that in the case of frauds they *ould go great lengths in the 
 admission of evidence. Shaw v. Wallis, 3 Yeates, 17. ' 
 
 A mortgagor was offered to prove that a mortgage which was given to A.^ was, in fact, 
 intended for the security of B., and he was held to be competent. Peterson Vi Willing, 3 
 Dall. 506. A party to a fraud Is competent to prove it ; and within this principle a grantor 
 who had acknowledged the receipt of the consideration money In a deed, was held compe- 
 tent to prove that the acknowledgment was a fraud upon the grantee's principal, as 
 *134 intended to show that his *agent had paid over the money intfusted to him for the 
 purpose by the principal, when in truth it was not paid, but the agent had 
 taken a deed in his own name, and secured the money by mortgage on the same 
 land. Langer v. Pelton, 1 Rawle, 141. And where the defendant executed a bond pay- 
 able to C, who assigned it to the plaintiff, it was held that C, the assignor, was a 
 competent witness for the defendant to prove -fraud in the execution and assignment of 
 the bond, and that although a bond was assignable by a statute of Pennsylvania, yet it 
 was not a negotiable secnrity within the meaning of the rule which excludes a party to 
 an instrument from giving testimony to invalidate it. Baring v. Shippen, 3 Binn. 154. 
 So the master of a vessel is competent to Impeach the validity of an invoice and bill of 
 lading, in an action by the owner against the underwriters. Blagg v. The Phoenix Insur- 
 ance Co., 3 Wash. C. C. Rep. 5. So a grantor in a deed was held to be a competent 
 witness to prove that it was obtained by misrepresentation, and without any considera- 
 atlon. M'Farran v. Powers,- 1 Serg. & Rawle, 103. So to prove he had no title to the 
 land when he conveyed. Brownrlgg v. Downmg, 4 Serg. & Rawle, 494. 
 
 D , who was a member of the ten of C. & D,, made a promissory note in the name of 
 the firm, payable to M. or order, who indorsed it in blank and delivered it to the plaintiff 
 after it became due. The process was served on C. alone. On the trial, C. offered D. as a 
 witness, to prove that the note was given, not for a partnership debt, but for a private 
 debt of D. Held, that the exclusion of a party to paper is confined to such negotiable 
 instruments as are negotiable in the usual eowru of biuineas ; that the note not being 
 negotiated until the day of payment was past, was out of the usual course of business, 
 and that the witness was competent. Baird v. Cochran, 4 Serg. & Rawle, 397. And 
 where the names of the payee and several others appeared on the note as Indorsers, but* 
 the action was brought by the payee, one whose name was on the paper as a subsequent 
 indorser, was admitted as a witness to prove that the note was given without considera- 
 tion. Hepburn v. Cassel, 6 Serg. & Rawle, 113, 
 
 But where the defendant drew a note payable to G. & W., who indorsed it to the 
 plaintiff, it was held that the indorsers were "not competent witnesses to prove the note 
 was made without consideration, for the accommodation of the indorsers and that this 
 was known to the plaintiff when ho took the note. Bank of Montgomery v. Walker, 9 
 Serg. & Rawle, 239. 
 
 In an action by the indorsee of a promissory note, against the indorser, the maker, 
 although released, was held not to be a competent witness to prove the consideration of 
 the note usurious. GriflSth v. Beford, 1 Rawle, 196. 
 
 Virginia. The only case which has arisen on this subject in Virginia is that of Taylor 
 V. Beck, which was an action brought by the indorsee of a promissory note against the 
 maker and indorsers, under a statute of that state. One of the indorsers confessed a 
 
SEC. in.] Self-Discrediting Witnesses. 101 
 
 judgment, and was offered by the other defendants to prove that the note was given for 
 an usurious consideration.. The witness was excluded, and the defendants appealed. In 
 the Court of Appeals the case was twice argued with great learning and ahility ; and the 
 court, in pronouncing judgment, examined the cases bearing oh the subject at great 
 length, and decided that a party to paper, whether negotiable or not, was competent to 
 invalidate it. The witness, however, was excluded on the ground that he was a party to 
 the suit. Taylor v. Beck, 3 Rand. Rep. 316. See, also, what was said in Baring v. 
 Reeder, 1 Hen. & Munf. 154. * . 
 
 " Maine. A party to a negotiable promissory note is not a competent witness to impeach 
 it, and the rule applies, not only to actions directly on the note, but to all others where 
 its validity comes collaterally in question. Thus in a writ of entry, brought upon a 
 mortgage deed, by the assignee of the mortgage, against the grantee of the mortgagor, 
 the tenant pleaded that the note, to secure which themortgage was given, was usurious, 
 and offered tli^ mortgagor, who was the maker of the note, to prove«the usury ; but he 
 was held incompetent. Deering v. Sawtel, 4 Greanl. Hep. 191. 
 
 The rule extends to the maker of an accommodation note, and is applied where the 
 note has been delivered up to the debtor, on his giving a recognizance to the creditor for 
 the amount. And its application is not restricted to the case of an innocent indorsee, but 
 is admitted where the usurer is himself a' party. Thus, where in a writ of entry 
 the tenant pleaded that the demandunt levied upon the premises an execution, issued 
 upon a recognizance entered into by tlie tenant, in which usury was included and taken, 
 and offered as a witness the maker of an accommodation note, made for the tenant's 
 *125 benefit, which the tenant Indorsed to the demandant, *and which afterwards 
 formed a part of the consideration of the recognizance, to prove that the note so 
 made and indorsed was usurious. This testimony, so far as it went to show the note to 
 have been detained with Usuiy, was excluded, and the witness held to be incompetent. 
 Chandler v. Morton, 5 Qveerti. Rep. 374. 
 
 Vermont. In Vermont the rule of exclusion is not adopted. Thus, in a suit between 
 the assignee of a juorCgage and the grantee of the mortgagor, the defendant offered the 
 mortgagor to prove that the notes made by him, and which the mortgage was given to 
 secure, were usurious; after having released him from all liability on his covenants con- 
 tained in the deed ; and he was held to be a competent witness. Nichols v. Holgate, 3 
 Aik. Rep. 138. 
 
 Jfew SomvpAwe. In an afttion by the indorsee of a promissory note, against the 
 maker, "the 'only question was, whether the indorser was a competent witness to prove 
 the note usurious, and the court said, that the rule that a party who has put his name 
 to 8 negotiable instrument cannot be a witness to show it was originally void, even in 
 a suit Jietween the original parties to the instrument, was too well settled to be ques- 
 tioned. ' Houghton V. Page, 1 N. H. Rep. 60. And see Hadduck v. Wilmarth, 5 N. H. 
 Eep. 187, per Richardson, Ch. J. ; and Carleton v. Whitcher, 5 N. H. Rep, 196, 200. 
 
 But an indorser may be a witness to prove payment before the indorsement. Thus, in 
 an action by the indorsee against the maker of a note, the indorser was held to be a com- 
 petent witness to prove that the maker paid the note to him before he indorsed it to the 
 plaintiff, and that the plaintiff was apprised of that fact when he took the note. Bryant 
 V. Ritterbush, 3 N. H. Rep. 313. 
 
 Connecticut. In an actioif of trespass qiuire damsum fregit, the plaintiff offered in 
 evidence a lease of the premises in question, from M., dated in 1796. The defendant 
 claimed under a deed and lease from M., dated in 1797, and offered M. as a witness, to 
 prove that the lease to the plaintiff was void. He was rejected, and the court said, that 
 the rule laid down in Walton v. Shelley, that ' no man should be admitted to swear 
 against his own deed, was sound law, and ought to be adhered to. Allen v. Holkins, 1 
 Day, 17. See Swift's Bv. 96, et seg. 
 
 The plaintiff brought an action of ttover against tl* defendants, for one undivided 
 half of a vessel, and claimed under a bill of sale from K. The defendants claimed also 
 under.a bill of sale from K., made subsequent to the plaintiff's bill of sale, and offered 
 K. as a witness to prove, That after the execution of the bill of sale to the plaintiff, and 
 before the execution of that to the defendants, the plaintiff made K. his fa<Jtor or agent 
 to sell and dispose of the vessel, and left the same in K.'s possession for that purpose : 
 and that, in pursuance of this arrangement, K. sold to the defendant. K. was adj udged 
 to be a competent witness, on the ground that a party to an instrument may be a 
 witness to prove facts subsequent to its execution, which tend to defeat it. Webb v. 
 Danforth, 1 Day, 301. 
 
 A party to a negotiable instrument, who is divested of his interest, is a competent 
 witness to prove it void in its creation. This was an action on a bill of exchange, drawn 
 by E. and A. T., payable to the plaintiff or order, and accepted by the defendants. The 
 defense was usury, and on the trial the defendants offered E. and A. T. as witnesses to 
 prove the usury, they having been divested of their interest. The question being 
 reserved for the opinion of the judges, it was held, that the witnesses were competent. 
 The remarks of the judges in Allen'v. Holkins, and Webb v. Danforth (cited mpra), 
 adopting the rule ia the case of Walton v. Shelley, as law, were said to be obiter, dicta, 
 
102 Of the Miioknce of Informers and ^\csb.. ti. 
 
 and after a full examination of the authorities, the decision of the court in Joidaine v. 
 Laahbrooke, was declaared to be sound daw. TowMsend v. Bush, 1 Conn. Bep. 260. 
 
 Lotdsianeb. In an action by the indorsee against the seocmd indorser of a promissory 
 note, the first indorser is a ctxmpetent witness to prove an a,lteration in the note subse- 
 quent to his ix>do\!8em«iit. In givdng judgment in this case, the court intimate the 
 opinion that the law is settled that a party to paper is incompetent to prove nny fects to 
 invalidate it at the time it passed from his hands Shamburgh v. Commagere, 10 Ma«t. 
 liou. Kep. 18. The defeidant, maker, called the payee and indorser to prove that he took 
 the note as the mere agent of the indorsee and the plaintiff, in ord«r to let in proof of 
 want of cansideration. Hsld admissible ; and said that the rule is of modern date, and 
 not settled, which would precljidb a party to negotiable paper from impeaching it by his 
 evidence. Admitting the rule to exist, however, the court denied its application to the 
 case in question. Cox. v. Williams, S Mart. Lou. Rep. (N. S. 159.) 
 
 Sovith OaroHna. In this etato, tlie parties or witnesses to negotiable or other 
 *136 paper, being free *of iatereSt, are receivable to impeach it in any way and on any 
 ground, the doctrine of Walton, v. Bbelley, or any of its kindred cases, never 
 having been recognized or acted upon rince Canty v. Sumter, 2 Bay, 93 ; Willbourn v. 
 Parham, 1 Harp. 375, 379 ; Knight v. Packard; 3 M'Cord, 71 ; Kecherly v. Cheer, 4 Id. 
 397, 401. And md. Nichols v. Artman, 1 Barp. 395 ; Croft v. Arthur; 3 Dessauss. Eq. 
 Eep. 223 ; Pajs^ne v. Trezevamt, 3 Baiy, 23 ; Haig v. Newton, 1 Rep. Const. Ct. 423 ; Mott 
 V. Dorrell, 1 M'Cord, 350 ; Thomas v. Brown, Id. 557 ; Fleming v. Mulligan, 2 Id. 173 ; 
 and Brummer v. Wilkes, Id. 178. Canty v. Sumter is misieported. 3 M'Cord, 71, Jiote. 
 
 Ma/ryland. In an action on a promissory note, drawn by the defendant, payable to W. 
 or order, and by him indorsed to the plaintiff, the defendant offered W., the payee and 
 indorser (W. and the defendant having executed mutual releases), to prove that the 
 defendant drew the note in question, and delivered it to W. to laige money upon it, for 
 the benefit of the defendant ; that the plaintiff discounted the note at the rate -of three 
 per centum per month ; and that W., as the agent of the defendaatjihad paid the amoimt 
 of the note to the plaintiff; held, that W. was a competent vrttness to prove both the 
 payment and the usury. Ringgold v. Tyson, 3 Har. & John. 172. 
 
 So, where'a promissory note was drawn by B., payable to H., and by him indorsed to 
 C, who indorsed it to E. ; held, in an action on it by E. against H., that B. was a compe- 
 tent witness to prove that the note was given on an usurious consideration, Hunt v, 
 Edwards, 4 Har. & John. 283. 
 
 North CaroTma. The plaiiutiff claimed the property in question by gift and delivery 
 from his father. The defendant alleged that the father afterwards conveyed the property 
 to him by bill of sale. The plaintiff introduced the wife of the father to prove the gift. 
 Taylor, Judge : — " She cannot be admitted ; the father himself could not be a "witneBq, 
 because he shall not be suffered to defeat his own deed ,' and if he could not, neither can 
 the wife, for she is not competent to prove a fact which he could not be permitted to 
 prove." Anonymous, 3 Hayw. Rep. 127. 
 
 M'Kay, Judge : — " No doubt can be entertained that decisions have been made in this 
 state, which reject the evidence of a man who is offered as a witness to detract from an 
 instrument himself has given. Here, however, the instrument was given by the witness 
 as an attorney ; ' Samuel Landrum, attorney,' &c., is stated in the deed. He is therefore 
 admissible, and is not subject to the rule insisteid on." Executors of Alston v. Jones's 
 Heirs, 2 Hayw. Rep. 298. 
 
 ■ In an action of ejectment, the lessors of the plaintiff claiming title undera deed from C, 
 the defendant offered C. to prove circumstances showing the deed to be invalid ; held, 
 that he was competent, and that the rule excluding a witness from impeaching his own 
 instrument, did not apply, at least to an instrument not negotiable. Doe ex dem. Gwyu 
 & Waugh V. Stokes & Welburn, 2 Hawks, 235. 
 
 Kentucky . In an action on atpote drawn by the defendant, payable to K., which was 
 indorsed, without Recourse by K. to R., by him to A., and by A. to the plaintiff, it was held, 
 that K. was a competent witness for the defendant to prove the note void for usury. 
 Gorham v. Carrol, 3 Littell, 221. Vid. Ford v. Hale, 1 Monroe, -23. 
 
 The following cases, in further illustration of the extent of the rule, that one shall not 
 be received to impeach an act to which he was a party, may be consulted. In some cases, 
 the rule has been very extensively applied, being extended to deeds, and even oral sales. 
 Pierce v. Hindsall, 1 Tyler, 153 ; Plummer v. Lane, 4 Harr. & M'Hen. 72. But it has been 
 generally denied as to these. Jackson ex dem. Hopkins v. Leek, 19 Wend. 889 ; Nichols 
 v. Hotchkiss, 2 Day, 121 ; Caston's Ex'rs v. Ballard, 1 Hill, 406 ; Hunter v. Stevenson, Id. 
 415 ; Hudson v. Hulbert, 15 Pick. 433, 426 ; Simmons v. Parsoijs, 1 Bail. 62 ; Calloway v. 
 .Willie's Lessee, 3 Yerg. 1 ; Wilmot's Lessee v. Talbot, 8 Harr. & M'Hen. 3 ; W'orthington 
 V. Bicknell, 3 Harr. & John. 58 ; Hall v. Gittings, 2 Id. 380, 386, and note at the last page ; 
 Stump v. Roberts, Cooke, 350 ; Guy v. Hall, 8 Murph. 150 ; Taylor v. Luther, 2 Sumn. 
 228, 235 ; Seymour's Adm'r v. Beach, 4 Verm. Rep. 500, 602, 503 ; Wise v. 'Tripp,*! Shepl. 
 9, 13. Though it is often allowed as to negotiable paper, subject to certain restrictions 
 and qualifications. Drake v. Henly, Walker's Rep. 541 ; Lonsdale v. Brown, 8 Wash. C. 
 C. Rep. 404; Adams v. Carver, ,6 Greenl. 890.; Lane v. Padelford, 2 Bhepl. 94; Story, J., 
 
SEC. Ill:] ■ Se^'Discrediting Witnesses^, 103 
 
 in Taylor v, Luther, 2 Sumn. 285 ; Buck v. Appleton, Shepl. 284 ; Wendell v. George, R. M.= 
 Clwrl. 51 ; Freeman's Pank v. Rollins, 1 Shepl. 202 ; Van Schaack v. Stafford, 12 Pick. 565 ; 
 Spring V. Lovett, 11 Pick. 417 ; Wood, J., in Stone v. Vance, 6 Ham. 248 ; Harley v. Emerick, 
 Miles, 36 ; Bank of Pennsylvania v. M'Calmont, 4 Rawle, 307, 311 ; Gest v. Espy, 3 
 »ia7 Watts, 365 ; O'Brien v. Davis, 6 Id. 498 ; Emerick v. Harley, 2 Wharton, 50 ; *United; 
 States V. Leffler, 11 Pet. 86 ; per M'Lean, J., in Scott v. Lloyd, 13 Pet, 149 ; and by 
 many of the American courts without restriction, even to avoid negotiable and other paper, 
 unless the witness be interested. Robertson v. Mills, 2 Har. & Gill, 98, in connection 
 with other Maryland cases ; per all the judges, in Billingsly v. Knight, 2 'f-ayl. 104, often 
 cited as 3 N. Car. Law Repos., though several cases are cited from the North Carolina 
 reports wliich go strongly the other way. This stood with a quere in Connecticut (Cowlea 
 v. Wilcox, 4 D^, 108), but it is now no longer so. The party even to negotiable paper 
 is received. to impeach it, in Georgia (Slack v. Moss, Dudley, 161), though this was 
 formerly doubted. Wendell v. George, R. M. Charlt. 51. So he is received in Alabama 
 (Todd V. Stafford, 1 Stew. 199, 200), and various other states. Johnson v. Blackman, 
 11 Conn. Eep. 343, 348; Harmon v. Arthur, 1 Bail. 83 ; Per Johnson, J. in Char v. Kecke- 
 ley, 1 Bail. 48 ; Stump v. Napier, 2 Yerg. 35. Gibson, C. J. (in O'Brien v. Davi?, 6 Watts,, 
 498, 499, 500), anticipates tlie abolition of all restriction in Pennsylvania, except the 
 interest of the witness, as in England and most of the American states. See the case of 
 Keefe v. Archdeken (1 Vern. & Scriv. Irish Rep. 195, 196, and note), which recognized 
 Walton v. Shelley as law, though we suppose the courts in that country have since, like 
 the English courts, repudiated it. 
 
 Note 59. — Persons, other than the parties in' the cause, guilty of offenses against tha ' 
 provisions of the act to prohibit betting and gaming, are competent witnesses, and may 
 be compelled to testify; but their testimony cannot be used in any prosecution against 
 ^em. 1 Rev. Stat, of N. Y. 663, § 18. And in civil and criminal suits, persons may be 
 witnesses against their accomplices, because their testimony tends to suppress fraud and 
 injustice ; and for the same reason, witnesses, whether subscribing witnesses or others, 
 may disclose a fraud. Churchill v. Suter, 4 Mass. Rep. 156 ; Bean v. Bean, 13 Id. 30. , On 
 trial of an indictment for usury, the borrower is a competent wifnesa for the common- 
 wealth, if he is not entitled to a moiety of the penalty as informer, notwithstanding he 
 has never paid the money borrowed (Commonwealth v. Frost,^ Mass. Eep. 53) ; and in 
 all cases an alleged particeps fraudis may be a witness to prove or disprove the fraud. 
 Major V. Deer, 4 J. J. Marsh, 586, 587 ; Glen v. Ka{)ff, 2 Gill & John. 132 ; Moore v. Tracy, 
 7 Wend. 229. The last case was that of a co-coaspirator to obtain goods. 
 
 A witness standing in the same situation with a party, is not, on that account, dis- 
 qualified. For additional cases on this head, see Lentz v. Stroh, 6 Serg. & Rawle, 34, 41 ; 
 Bailor v. Smithers' Heirs, 1 Litt. 110; West v. Bolton, 4 Verm. Rep. 558; Moulton v. 
 Moulton, 1 Shepl. 110 ; Smith v. Hubbs, 1 Fairf. 71 ; Moscati v. Lawson, 7 Carr. & Payne, 
 33 ; Lethbridge v:*PhilUps, 3 Stark. Rep. 544. 
 
 So of an alleged several wrongdoer, whose claim depends on the same question as the 
 one in issue. Maus' Lessees v. Montgomery, 15 Serg. & Rawle, 331, 233. 
 
 The case of Cooper v. Miller (1 Browne app. 68), that one is not competent for th© 
 defendant in replevin, because he went with him and gave countenance to the distress, is 
 contrary to almost, if not quite, the whole current of authority. It was said in one case, 
 that the tortious vendor of the wrongdoer defendant, was not competent for the plaintiff,, 
 because a verdict against ttie defendant would be a bar to an action against the witness. 
 Pierce v. Hindsall, 1 Tyl. 153, 155, The case itself, as well as the reason given, seems to ' 
 stand almost alone against a host of authority. 
 
 The ison being sued in trespass for driving away the plaintiff's cow, the father, who 
 directed his son, the defendant, to drive her away, was held competent for the defendant. 
 West V. Bolton, 4 Verm. Rep. 558. In case against one conspiring with B. to defraud the' 
 plaintiff, B. is a competent witness for the plaintiff. Brown v, Maush, 8 Verm. Rep, 310,- 
 312, 313. 
 
 The appearance of an attorney generally for three wrongdoers, one not being sum- 
 moned, will still not make them parties, if the plaintiff proceed against those only wjio 
 were summoned, and so the third is competent for the others. Lentz v, Stroh, 6 Serg. &■ 
 Rawle, 34, 41. 
 
 In trover. A, was called and held competent for the plaintiff to show that he (A,) bought 
 the goods of the plaintiff fraudulently, without the means or intent to pay for them, and 
 sold them to the defendant. Triebner v. Soddy, 7 Carr. & Payne,. 718. In separate 
 informations of guo warranto against separate members of a corporation, on the trial of 
 one, the other parties are competent for the de/eudant. Rex v. Gray, 3 Selw. N. P. 1148 
 (6th ed.) In an action for infringing a patent, the purchaser from the plaintiff of a 
 license to use the patent, is yet a competent witness for him. Derosne v. Fairlie, 1 Mood. 
 & Rob. 457. And see Treadwell v. Bladen, 4 Wash. C. C. Rep, 703, 704. In an action on 
 the case for waste, by the reversioner against a stranger, the tenant, though jointly con- 
 cerned in committing the waste, was held to be a competent witness for the plaintiff, 
 Speers v. Broomle, 2 Huds, & Brooke, 432. But the case in fact seems to have been no 
 more than that of DuddiKgton v. Hudson, cited and stated in the text. In Lethbridge v.. 
 
104 Of (he EoiMnce of Ihformeri, die. [ch. ti. 
 
 *128 up *certain promissory notes, the Court of King's Bench held that 
 the indorser of one of the notes ought not to be allowed to prove the 
 consideration of the note usurious, on a supposed principle of public policy, 
 that no party who has signed a paper or deed, and has, byWe signature, 
 given it credit, shall ever be permitted to give testimony to invalidate that 
 instrument. But the contrary principle is now fully established. 
 
 In the later case of Jordaine v. Lashbrooke,(l) this subject was very fully 
 discussed ; and the court there determined, tl^at in an action on a bill of 
 exchange against the acceptor, the payee, who was also indorser, was a com- 
 petent witness for the defendant to prove that the bill, which was unstamped, 
 and purported to be drawn at Hamburgh, was in fact, drawn in London,, and, 
 therefore, void for the want of a stamp. Nor is there any distinction, with 
 respect to negotiable or unuegotiable securities, when the point to be con- 
 sidered is the competency of the witness :_ for, supposing what he has done, 
 in putting such instruments into circulation, to be ever so great a fraud and 
 ever so mischievous, he still is a witness not more devoid of principle than 
 many who have been before mentioned as admissible. (2) 
 
 This rule applies to all cases, civjl as well as crimiual, in which a witness's 
 character is open to objection from the turpitude or irupropriety of his 
 conduct. Thus, in an action under the statute 2 Geo. 11, c. 24, for 
 bribery at an election," a person who has received a bribe may be a 
 *129 *competent witness against the defendant. (3) And one who has set- 
 Ms name as subscribing witness to a deed or will, is admissible to 
 impeach the execution of the instrument ;(4) although his evidence is to be 
 received with all the jealousy necessarily attaching to a witness, who, upon 
 his oath, asserts that ip be false, which he has, by his solemn act, attested 
 as true. (5) 
 
 Phillips (3 Stark. Rep. 544), the action waB for injuring a picture, and the man who bor- 
 rowed it of the plaintiff, and without his leave sent it to the defendant, was received for 
 the plaintiff to prove his case. 
 
 In an action against the owner of a ship, for goods supplied, the master is competent 
 for the plaintiff to prove the ownership. Le Blanc, J., said he was liable in respect to his 
 contract ; but the owners were liable from their character. Rowcroft v. Basset, Peak. 
 Add. Cas. 199. He is equally a witness for the defendant. DescadiUas v. Harris, 8 
 ■Greenl. 298. In one case, the owner was received as a witness for the plaintiff, in an 
 action to charge another with work done on the schooner at the defendant's special request. 
 Nicholson v. May, 1 Wright, 660. In an action for use and occupation of land, the defend- 
 ; ant's tenant of the same land, who had paid all the rent to the defendant, was held to be 
 . a competent witness for the plaintiff. Grant v. Beall, 4 Har. & M'Hen. 419. In assumpsit 
 . against the owner of a ship, for money advanced to the master in a foreign port, for 
 which he drew his bill on the owner, he waS'^eld a competent witness for the plaintiff. 
 DescadiUas v. Harris, 8 Greenl. 3984 And said, he was indifferently liable to the plaint- 
 'iff or the owner, for the principal only ; not, as in Scott v. McLellan (3 Greenl. 19!'), 
 liable to the party calling him for principal, &c., and costs, and to the other party for 
 ■principal only. 
 . (1) 7 T. R.6, 601 ; Ashurst, J., contra. See Jones v. Brooke, 4 Taunt. 464. 
 
 (2) 7 T. R. 611. By this case of Jordaine v. Lashbrooke, the cases of Walton v. Shelley, 
 -Adams v. Lingard, 1 Peake N. P. C. 117, and some other case of the same kind, are overruled. 
 
 (3) Bush V. Railing, Say. 289, cited by Lord Mansfield, C. J., Cowp. 199 ; Mead v. Robin- 
 .son, Willes, 433, and n. c. Id 425 ; Howard v. Shipley, 4 East, 180. 
 
 (4) Lowe V. Joliffe, 1 Black. Bep. 365. See 7 T. R. 604, 611 ; 6 East, 195. 
 
 (5) 1 Ves. & B. 308. i ■ 
 
 NoTF. 60.— See Fox's Lessee v. Palmer, 3 Dal. 314, and Currie v. Donald, 3 Wash. Virg. 
 Rep. 63. So a judge who has taken a proof of a deed is a competent witness to invaUda;te 
 isuch proof:. Jackson ex dem. Wyckoff v. Humphrey, 1 John. Rep. 498. 
 
 The doctrine in the text has often been held in this country. See Glenn v. Kapff, 3 Gill 
 .& John. 133, Blad. per Robertson, C. J., and in Major v. Deer, 4 J. J. Marsh. 587. 
 
 A subscribing witness to a will iS competent to disprove the sanity of the testator at the 
 •time of the execution of the will. Hampton v. Garland, 3 Haywood, 147. Et vide Poole 
 ■V. Richardson, 3 M^ss. Rep. 330. As the law abhors fraud, its rules are framed so as to 
 prevent, by detecting and punishing it. For this reason, witnesses, whether subscribing 
 witnesses, or others, may disclose a fraud. Per Parsons, C. J., in Churchill v. Suter, 4 
 .Mass. Rep. 161, 163. A witness to a deed is competent to prove it a forgery. Major v. 
 
CH. Til.] Of the Mule as to Communications, d;c. 105 
 
 In an action to recover the price of goods supplied to a ship, against a 
 party whose name appeared on the register as a part ovner,{l) it was 
 decided that a witness, upon whose oath the register had been obtained, 
 was Competent to prove that he had inserted the defendant's name therein 
 without his privity or consent ; and the objection, that the witness's evidence 
 wa« at variance witV his oath, would only affect his credit, A person who 
 has joined in an assignment of a ship, is a competent witness to prove that, 
 
 in point of fact, he had no property in the vessel at the time of the 
 *130 assignment. (2) A vendor of property is competent to prove that *he 
 
 had no title in the lands pretended to be sold and conveyed. (3) And 
 a witness, .who admits that, upon a former proceeding, he swore falsely with 
 regard to the matters upon which he is examined, is not incompetent, how- 
 ever the objection may affect his credit. (4) 
 
 CHAPTER VII. 
 
 OP THE EXGLTTSION OF EVIDENCE, WHERE THE DISCLOSUEE WOULD BE IS 
 VI0LA.TI0N OP PEOPESSIONAL CONFIDENCE, OR PEEJUDICIAL TO PUBLIC 
 INTERESTS. 
 
 The preceding chapters have treated of the grounds of incompetency, 
 from want of understanding, from defect of religious principle, and from 
 immediate and individual interest in the event of the suit ; and of the con- 
 firmation requisite in the cases of accomplices and others. The objection 
 to testimony from these causes depends upon one principle, the supposed 
 want of personal credit attaching to the witnesses. Two other grounds for 
 the exclusion of evidence are now to be considered : where the disclosure 
 would be of matters communicated under professional confidence ; and 
 where the disclosure would be prejudicial to public interests. These grounds 
 of exclusicin will be the subject of the two following sections. 
 
 Deer, 4 J. J. Marsh. 587. And it is no objection to his testimony that it goes to invalidate 
 a title derived by deed from him. Hadduck v. Wilmarth, 5 N. H. Rep. 181, 187. 
 
 It was once held in South Carolina, on the authority of Walton v. Shelley, that the 
 obligee in a bond, who had assigned it, in an action by the assigaee against the obligor, 
 was not a competent witness to prove payment. Canty v. Sumter, 3 Bay, 93. In this 
 case, the witness was also a party on the record ; but no objection appears to have been 
 made on that ground. In Croft v. Arthur (3 Dessauss. Eq. Rep. 223), however, it was 
 held that the rule in Walton v. Shelley is confined to negotiable instruments. Canty v. 
 Sumter was misreported (3 M'Cord, 71, note), and the case of Walton v. Shelly has been 
 repeatedly overrulecl in South Carolina. Knight v. Packard, 3 M'Cord, 71 ; Payne v. 
 Trezevant, 2 Bay, 23 ; Haig v. Newton, 2 Rep! Const. Court, 423 ; Mott v. Dorrell, 1 
 M'Cord, 350 ; Thomas v. Brown, Id. 557 ; Fleming v. Mulligan, 3 Id. 178 ; Brummer v. 
 Wilkes, Id. 178. 
 
 (1) Rands v. Thomas, 5 M. & S. 244. 
 
 (3) By WiUes, J., 1 T. R. 301. ., ♦ 
 
 Note 61J — The same has been repeatedly held in this and the like cases. Johnson v. 
 Bourn, 1 Wash. Virg, Rep. 187. A factor having pledged goods wrongfully to several 
 persons, is competent for the plaintiff, his principal, in trover by him to recover the goods ; 
 for he stands but in the light of a joint wrongdoer. Ctreen v. Fisher, 1 Carr. & Payne, 
 190. So in an action against one for committing waste contrary to his agreement, the 
 person who committed the waste by the defendant's authority is a competent witness 
 against him. Maloue v. Home, 1 Hudson & Brooke, 344. A pwrUceps fraudAs is a com- 
 petent witness to prove or disprove the fraud ; as the grantor in a deed to show that it 
 was fraudulent (Jackson ex dem. Mapes v. Frost, 6 John. Rep. 135 ; Loker V. Haynes, 11 
 Mass. Rep. 498 ; Langer v. Felton, 1 Rawle, 141) ; or the grantee to show Ijiat the grant 
 was without consideration, and so fraudulent as to creditors. Hill v. Payson, 3 Mass. 
 Rep. 559 ; Croft # Arthur, 3 Dessauss. Eq. Rep. 223. But see Fowler v. Norton, 2 Root, 
 331, contra. In an action on the case for a false affirmation, the person concerning whom 
 the affirmation was made was held a competent witness for the plAintiff. Wise v. Wilcox, 
 1 Day, 23 ; Smith v. Harris, 2 Stark. Rep. 47. 
 
 (3) Title V. Orevett, 2 Ld. Raym. 1008. See 7 T. R. 609. 
 - (4) ». V. Teal, 11 East, 309. 
 
 Vol* L 14 
 
106 Of the EuU as to Commtmications [cH. m. 
 
 SECTION L 
 
 Of the Mechisioij, of Miidence, where the Disclomre woiMd be in Violcaion 
 cf Professioncd Confidence. 
 
 Comummeations, made on the faith of that professional confidence, which 
 a client reposes in his counsel, attorney or solicitor, are not alloived to be 
 revealed in a court of justice to lie prejudice «f the client. (1) 
 
 (1) Note 62. — In Louisiana, a statute enacts that attsrnejs shall not give evidence in a 
 cause where they are employed. This is intended to preclude them onfy when they are 
 offered for their clients. They may, therefore, he called on and compelled to 
 *131 testify against their cliaits, in *respect to matters not confidential. Cox v. Wil- 
 liams, 5 Mart. Lou. Rep. 139 ; Reeves v. Burton, 6 Id. 383. 
 
 The curious reader, who would look at the ancient foundations of this rule, may consult 
 Gary, 88, 89, 126, 143, and Toth. 177, where he will find principles by which we are still 
 governed, though less broad than those upon which some of our courts proceed. The 
 cases in Gary are stated at large in the Arn. ed. of Starkie's Bv. of 1828, pt. 4, p. 395, 
 note 1. 
 
 An attorney's clerk is privileged to the same extent as the attorney. Mills v. Oddy, 6 
 Carr. & Payne, 728 ; Bowman v. Norton, 5 Carr. & Payne, Vll ^post, note 66. 
 
 As to the subject matter of the privilegjfe, an attorney refusing to produce his client's 
 papers on notice, is not admissible as a witness to prove their contents. Bottomley v. 
 Usborne, Peak. Add. Cas, 99, 101 ; Mills v. Oddy, 6 Carr. & Payjie, 728, and note .a to that 
 case, citing per Lord Lyndhurst, C. B., in Bate v. Kinsey, 1 Crompt. Mees. & Rose. 38 ; 
 Marston v. Downes, 6 Carr. & Payne, 381. See, also, Walker v. Wadman, 6 Madd. 47, 
 and Cook v. Heam, 1 Mood. & Rob. 301. A bankrupt went to an attorney's Clerk to con- 
 sult him as to the state of his affairs. In an action by the assignees, they called the 
 clerk to prove the conversation. The offering counsel, conceding that the clerk was 
 privileged, and that the conversation was in its own mature so, insisted that the privilege 
 ■followed the right of suit, which having passed to the assignees, they UHght waive it. 
 Be^de, he added, that the assignees represented the bankrupt's person, and might waive 
 the privilege for him. But the offer was disallowed. Tindal,C. J., put the case «f the 
 commission being set aside, and asked — "Are the man's secrets, told to his solicitor, to 
 be let out ?" Bowman v. Norton, 5 Carr. & Payne, 177. 
 
 But the attorney, &c., to protect the communication, must be consulted strictly in his 
 professional character. See Rex v. Brewer, 6 Carr. & Payne, 363 ; and Hill v. Elliott, 5 
 Id. 436 ; Farquano v. Knight, 3 Mees. & Welsh. 100. In Annesly v. Ld. Anglesea (17 
 How. St. Tr. 1221), the attorney of the prosecutor of an indictment was allowed to state 
 what his client had observed to him, pending the proceedings on the indictment, viz : 
 that he would give a large sum of monej to have the prisoner hanged. In the note post, 
 68, may be seen various instances in which the communications, though made to an 
 attorney, &c., were holden unprotected because not made with a view to professional 
 advice. The books furnish additional illustrations of tlie kind. Thus, though we have 
 just seen tliat a bankrupt's communications shall not be disclosed, if he go to consult the 
 attorney on the state of his affairs, yet in another case, although thecommunication was 
 made to his acting attorney retained in his affairs, and though it related to them, it was 
 holden not to be privileged. The attorney suggested to his client, that a meeting of his 
 creditors should be called ; and the client asking him if he could safely attend without 
 being arrested, was advised to remain behind in the attorney's office till it could be as- 
 certained whether his creditors would give him a safe conduct. This was offered in 
 evidence as an act of bankruptcy, and the attorney was allowed to disclose it. Abbott, 
 Ch. J., said the privilege must be confined to questions asked with a view to legal advice 
 which it was a part of the duty of the attorney to give as attorney ; but a question asked 
 with a view to obtain information as a matter of fact, being addressed to an attorney 
 where it might have been addressed to any other person, and being addressed to 
 him where his character and office of attorney is not called in action, has never been held 
 to be within the protection. Bramwell v. Lucas, 4 Dowl, & Byl. 367, 372 ; S. C, 2 Barn. & 
 Cress. 745. So he may be asked by whom he was employed in the cause (Brown v. Pay- 
 son, 6 New Hamp. Rep. 443), and in what capacity liis clients employed him, whether as 
 executors (Gurney, B., in Beokwith v. Benner, 6 Carr. & Payne, 681) ; when the instru- 
 ment in question was put into his hands, for collection or suit (Walwortli, C, in Driggs v. 
 Rockwell, 11 Wen. 504, 507, 508), though he cannot be compelled to sti^o its situation or 
 appearance at tlmt time. Brown v. Payson, 6 N. Hamp, Hep. 443 ; Wheatley v. William^ 
 1, Mees. & Welsh. 538. He was compelled to state the fact of giving a check to his client 
 for money collected for him ; and what he then said as to being in funds. Johnson v. 
 Farmers' Bank, 1 Harringt. 117, 118, 119. So of the execution of a deed by his client in 
 his presence (Saudford v. Remington, 2 Ves. juu. 189), and he compellable to disdose any 
 
SEC. l] In Fi-ofesdongi Confidence. 107 
 
 (»ther iprirate communjcaitiagi or transaction independent of Ms characteT as attorney. 
 Hodges V. Mullibin, 1 Bland, 509 ; Bogert v. Bogert, 2 Edw. Ch. Rep. 399, 403 ; Rogers v. 
 Dare, 1 Wright, 136, 187. On this principle, he is bound to disclose a statement made 
 by request of his diient, to the adverse party. Eipon v. Davis, 2 Nev. & Mann. 
 *132 ^310. And Oainsford v. Grammar (3 Camp. 9 contra), was qijiestioned, and sembU, 
 overruled as there reported. Id. ; Qrii^th v. Davis, 5 Barn. & Adojph. 603, S. P. 
 
 Whether the communications to an attorn^, &c, in order to be privileged, must relaite 
 to a suit depending or at least prospective, as will be seen post, note 67 ; the authorities 
 are conflieting. And see Brown v. Payson, 6 N. Hamp. Bep. 445, and the cases there 
 cited, by Parker, J. That either is necessary was denied in Beltzhoover v. Blackstockj 
 (3 Watts, 30, 22, 27, 38). And this seems to be now the settled doctrine of Westminster 
 Hall, besides being sustained by a decided preponderance of American authority. See 
 Taylor v. Blacklow, 8 !Kng N. C. 235, and tihe cases there cited by the counsel and the 
 court ; Doe dem. Peter v. Watkina, Id. 431 ; Wnlker v. Wildman, ,6 Madd. 47. 
 
 The question arose in Foster v. Hall (13 Pick. 89) where it was much considered. Mr. 
 B., an attorney, was consulted by and gave advice' to a grantor concerning u, proposed 
 deed. He knew nothing but what tihe .grantor communicated in a eonversatiou and 
 consultation held in relation to the making of the conveyance, whicl^ was now assailed 
 as fraudulent. Mr. R. had been recently licensed as attorney, and felt that he was entitled 
 to a fee for the directions he gave ; but had never received one. The counsel for the 
 grantor objected to his being examined, though his advice had not been given in respect 
 to any 'pending suit ; nor with express reference to a prospective one. The objection was 
 allowed ; and on motion for a new trial, it was denied. The question was debated and 
 decided on the assumption, that the advice had no connection with a present or pros- 
 pective suit. Shaw, C. J., delivered the opinion of the court. He examined the Englisb. 
 cases very fully (A. D. 1831), cited in the 6th ed. of Phillipps, p. 134 (A. D. 1834), repeated 
 in the seventh edition at pp. 143, 144, which he approved, and concluded as follows : " On 
 the whole, we are of ojpinion, that, although this rule of privilege, having the tendency 
 to prevent the full disclosure of the truth, ought to be construed strictly ; yet stUl, whether 
 we consider the prindiple of puMic policy upon which the rule is founded, or the weight 
 of authority by wMch its extent and limits are fixed, the rule ia not strictly confined to 
 communications made for the purpose of enabling an attorney to conduct a cause in court, 
 but does extend so as to include communications made by one to his legal adviser, whilst 
 engaged and employed in that character, and when the object is to get his legal advice 
 and opinion as to legal rights and obligations, although the purpose be to correct a defec- 
 tive title, by obtaining a release, to avoid litigation by compromise, to ascertain what 
 facts are necessary to constitute a legal compliance with an obligation, and thus avoid a 
 forfeiture or claim for damages, or lor other legal and proper purposes, not connected 
 with a suit in court." In this case, the well known limits of the rule in most other 
 respects are noticed by the learned Ch. J. on English authority (13 Pick. 93 to 89), not 
 differii^ materially from those already pointed out in the text ,or notes. See also a 
 learned examination of the same head of evidence upon the English and many of the 
 American cases, by Parker, J., in Brown v. Payson, 6 N. Hamp. Rep. 444 to 449. 
 
 To Foster v. Hall, may now be added the still later cases of Bolton v. The Corporation 
 of Liverpool, 1 Mylne,& Keen, 88 ; and Greenough v. Gaskell, Id. 98 (A. D. 1833); Moore 
 v. Terrell (same year), 4 Bam. & Adolph. 870). The reporter's note to Greenough v. Gas- 
 kell is thus : " And generally, it seems, that a solicitor cannot be compelled, at the instance 
 of a third person, to disclose matters which have come to his knowledge in the con- 
 duct of professional business for a client, even though such business had no reference 
 to legal proceedings, either existing, or in contemplation." In Moore v. Terrell, Parke, 
 J., said, " In Greenough v. Gaskell, the lord chancellor consulted with Tindal, C. J., Lord 
 Ijrndhurst, and myself; and we all thought the client's privileges extended much beyond 
 communications in respect of a suit." The language of the lord chancellor is also given 
 in a note to Moore v. Terrell. An attorney for A. lending money to B. peruses the abstract 
 of B.'s title. He is not admissible as n witness concerning them. Doe dem. Peter v. 
 Watkins, 3 Bing. N. C. 421. So of anytlfing communicated by a client in respect to the 
 sale or purchase of an estate. Mynn v. Joliffe, 1 Mood. & Rob. 327. And see Ex parte 
 Aitkin, 4 Bam. & Aid. 47 ; and Ex parte Teatman, 4 Dowl. Pr. Cas. 308 ; per Iiittledale, 
 J. See also Hare on Discovery, ch. 3. In Doe ex dem. Shellaid v. Harris (5 Car. & Pa,yne, 
 593), Mr. Justice .J. Parke extended it to a knowledge acquired on an application to an 
 attorney to draw a deed in fraud of creditors, and he refused to make an exception, 
 because the advice might relate to an unlawful transaction, repeating what he said in 
 Moore v. Terrell, as to to the decision of the lord chancellor. He concluded by 
 •133 saying, " I am of opinion that the privilege applies to all cases *where the client 
 applies to the attorney in a professional capacity .; and an application to draw a 
 deedis, 1 think, of that description." He said, in the course of the trial, that he con- 
 sidered the cases to the pontrary» as overruled. He said : " There is a great deal of 
 difficulty in the witness's disclosing whether the conference between him and his client, 
 was for a lawful or imlawfal purpose, without our being told what it was. It might be 
 that the party asked if a pa^icular thing could legally he done." See also Bowman 
 
108 Of the RvM as to Communications [ch. tii. 
 
 V. Norton, and Mills v. Oddy, supra, "wbidii are also substantially that the retainer need 
 not relate to a suit. 
 
 The consequence is, that where no suit is pending, an attorney may be employed for 
 both parties as in conveyances, and, therefore, cannot disclose the secrets of either, with- 
 out his consent. Dae dem. Peter v. Watkins, 3 Bing. N. C. 431. See, also, Taylor v. 
 Blacklow, Id. 235 ; Doe ex. dem. Stroder v. ^at»n, 3' Adolph & Ellis, 171. 
 
 The privilege is that of the party, who maly waive it. If the attorney in the cause 
 submit to be examined, his assent, it seems, shall be taken for that of the client. Bishop 
 of Winchester v. Fourner, 3 Ves. sen. 445 ; Maddox v. Maddox, 1 Id: 61, 63. But as we 
 saw in Bowman v. Norton (supra), the assignees of a bankrupt have no power, as such, 
 to waive his privilege. 
 
 An attorney making a communication between two parties, is compellable by either to 
 disclose them. Cleeve v.. Powell, 1 Mood. & Rob. 338 ; Braughe v. Cradock, Id. 183. A 
 party assignor may waive his privilege, and let in the testimony of his attorney against 
 his (the party's) assignee, as to what the assignor said previous to the assignment. Ben- 
 jamin V. Coventry, 19 Wend. 353. 
 
 Whether, under the New York statute, the privilege of concealing knowledge acquired 
 professionally, as a physician or surgeon, be that of the patient, and waivable by him ? 
 Quere. Johnson v. Johnson, 14 Wend. 637. Savage, Ch. J., at p. 641, said it was undoubt- 
 edly that of the party, not the witness. S. C, 4 Paige, 460, 468, and see S. C, but not S. 
 P., in 1 Edw. Ch. Eep. 439. 
 
 All the cases seem to agree that the privilege continues after the particular suJt is ter- 
 minated, and extends to causes with which the client has no concern. See Parker v. 
 Yates, 13 Moore, 530. It extends to the professional advisers of a stranger to the suit. 
 Though if the judge improperly receive the evidence, it has been held that the party to 
 the cause cannot avail himself of the objection. Yet counsel may arg^e as to the admis- 
 sibility at the trial. Rex v. Woodley, 3 Mood. & Rob. 391. Quere-; for the privilege is 
 not allowed out of regard to the interests of the parties. But see Doe dem. Peter v. 
 Watkins, 3 Bing. N. C. 421. ■ ■ 
 
 In respect to the production of papers, the privilege of the attorney seems to be 
 co-extensive with that of the client ; but not more so. Post, note' 69. But he is :not 
 bound to produce a case made for his client, a stranger, and submitted to counsel. Rex 
 v. Woodley, 1 Mood. & Bob. 390. 
 
 The court will direct at the trial, as to the attorney's privileges. Nixon v. Mayoh, 1 
 Mood. & Rob. 76. 
 
 As to incompetency or privilege, on the ground of policy, from disclosing knowledge 
 acquired in the course of state, judicial, or other oflBcial duty, see notes to chapter on the 
 examination, of witnesses. A senator was held admissible to disclose facts which trans- 
 pired in secret session, after he had' applied to have the injunction of secrecy removed, 
 and that was refused. Law v. Scott, 5 Harr. & John. 438. "The court refused a subpoena 
 duces tecum to compel a state governor to produce a paper filed with him, containing 
 charges alleged to be libelous. Gray v. Pentland, 3 Serg. & Rawle, 23, commented on 
 and approved in Youter v. Sanno, 6 Watts, 166. The county attorney is inadmissible as 
 a witness to disclose the proceedings before tbe grand jury. McLellan v. Richardson, 1 
 Shepl. 82, 86. The court say the object of the grand juror's oath of secresy, is to prevent 
 escapes, and promote freedom of deliberation, by preventing timid jurors being over- 
 awed. In another case, a grand juror was received to prove who was the prosecutor. 
 Huston J., argues that the oath, " The commonwealth's counsel, your fellows and your 
 own, you shall keep secret," restrains merely from all voluntary disclosure, because that 
 may affect the prosecution, or jurors, or witnesses, injuriously; but not disclosilres on 
 oath to promote justice. Huidekoper v. Cotton, 8 Watts, 56, 57, 58. He cites Wheat. 
 Selw. as in point. And so it is. See that page of the 3d Am', ed. The case is Sykes v. 
 Dunbar. 
 
 Communications, though made to official persons, are not privileged, when they are 
 not made in the discharge of any public duty ; |ib a letter •written by a private indi'vidual 
 to the secretary of the postmaster general, complaining of the conduct of the guard of 
 the mail. Blake v. Pilfield, 1 Mood. & Rob. 198. 
 
 When the purposes of public justice require that certain evidence should be given, 
 which the court, from a regard to decency, would be disposetf to suppress (whether upon 
 indictment for crimes, or on questions of private right or private wrong), the evidence, 
 however inconvenient, must be disclosed. It has, therefore, been considered that Mr; 
 Justice Burnet was wrong in refusing to try an action of defamation, in which a woman 
 charged a man with proclaiming to 9ie world that she had a secret defect in her person, 
 and the defendant, by plea, justified that it was true that she had such defect. Per Lord 
 Mansfield, in Da Costar v. Jones, Co'wp. 733. But the courts have frequently refused to 
 try wagers, on the ground of their leading to the admission of indecent evidence, or as 
 unnecessarily injuring the feelings of third parties. Id.; Dirchburn v. Goldsmith, 4 
 Camp. 153. 
 
 SenibU. An arbitrator is pri'vileged from disclosure out of protection to hie situation. 
 Note to Johnson v. Durant, 4 Carr. & Payne, 337, cited Ellis v. Saltan. 
 
SEC. I.] In Professional (Jofijiiknce. 109 
 
 *134 *The expediency of this rule must depend, not on the impropriety of 
 violating the confidence repQsed, but on a consideration that the col- 
 lateral inconvenience, which would ensue if no such confidence were reposed, 
 would preponderate over the direct mischief produced by a chance of the 
 failure of justice, resulting from the exclusion of evidence. If, in the cases 
 within the operation of the rule, the only confidence reposed were a confes- 
 sion of guilt or dishonesty, the rule would be obviously detrimental to the 
 interests of justice ; but it is conceived that, in a multitude of instances, a 
 person possessed of just rights would be materially impeded in vindicating 
 them, if every communication, made to his professional adviser, might be 
 used against him ; if such were the law, it would be necessary, in self- 
 defe)ise, to accompany all communications made to a professional adviser, 
 Witll a statement of the several circumstances and explanations, which, 
 however unnecessary for the purpose of the communication, would be 
 requisite to prevent it from being unfairly used. And it is to be observed, 
 that the evidence in question, being generally a species of hearsay evidence, 
 is open to much objection upon that ground, especially as it would generally 
 be delivered either by a very favorable or a very hostile witness. (Ij 
 
 Privilege is that of client. The privilege is that of the client and not of 
 the professional adviser ; an attorney will not be allowed, against his client's 
 will, to disclose matters of professional confidence, though himself willing 
 to do so. (2) The client, however, may waive his privilege j(3) in 
 *135 which case the court will compel *the legal adviser to discover what 
 he knows. (4) But he is not to be considered as waiving it, by calling 
 his attorney as a witness, unless he examines him as to confidential com- 
 munications. (5) ^ 
 
 With respect to the character and situation of the persons receiving the ' 
 communications, it is to be observed that this professiona/1 privilege extends 
 to the three cases of counsel, attorney, and solicitor. (6) 
 
 A petit juror may, of course, be examined to any material fact, thougli it come to hia 
 knowledge in the course of duty as juror,* Dunbar v. Parks, 2 Tyl. 217. And in crim. 
 con. the executor of the defendant's uncle was compelled to answer what amount of prop- 
 erty the defendant had acquired by his death, this being material to the question of 
 damages. Abbott, C. J., said ; " I do not say that an executor is boun(J to answer all 
 questions ; but I do not see why you should not answer this." Peter v. Hancock, 1 Carr. 
 & Payne, 375. 
 
 (1) See the remarks of Lord Brougham, C, in GreenoUgh v. Gaskell, 1 Myl. & K. 103. 
 See also Bolton v. Liverpool (Corporation), Id. 94, 95. 
 
 (2) B. N. P. 284 ; Wilson v, Eastall, 4 T. R. 759 ; Sandford v. Remington, 2 Ves. jun. 
 189 ; by Lord Lyndhurst, CTin Herring v. Clobery, 1 Phil. 96. 
 
 (3) Merie v. More, R. & M. 390 ; Baillie's Case, 31 How. St. Tr. 341, 358, 408. 
 f4) By North, C. J., in Lea v. Wheatle'y, cited 20 How. St. Tr. 574, n. 
 
 Note 63. — But whether, where the attorney is retained by two persons, he can be 
 absolved by one so as to disclose information to the prejudice of the other? Quere. 
 Devoy's Lessee v. Burke, 2 Fox & Smith, 191. (It is now held that he cannot be absolved 
 by one of two persons consulting him ; Whiting v. Barney, 38 Barb. 393.) This privi- 
 lege is personal to the client, and if he consent, it does not lie with a third person to 
 object. Merle v. More, 2 Carr. & Payne, 275 ; S. C, cited in the text from By. & Mood. 
 The subject of waiver was much discussed in the case before the House of Lords con- 
 Ifierning the abuses in Greenwich Hospital,, and in three instances, the clients, after 
 objection by their former counsel, were allowed to waive their privilege. Howell's 
 State Trials, Vol. 21, pp. 341, 358, 408, and see note to Merle t. More, By. & Mood, 
 391. The consent of one who acted as counsel with the attorney on a former cause, 
 where the attorney obtained his knowledge, without the client's consent, will not warrant 
 the attorney's disclosing such knowledge as a witness. Francis and Jones' Case, 1 C. H. 
 Rec. 121. 
 
 (5) Waldron v. Ward, Styl. 449 ; Vaillant v. Dodemead, 2 Atk. 524. See also Bate v. 
 Kinsey, IC, M.«£R,38. 
 
 (6) Wilson V. Rastall, 4 T.-R. 759 ; Waldron v. Ward, Styl. 449. 
 
110 Of the MuU as to Oanmmmi6aiions [ch. tii. 
 
 A persoa vt)xo acts as iuterpreter(l) or ageiit,(2) a§ the orgah of commu- 
 nication between an attorney and his client, staads precisely in the same 
 situation as the attorney himself; he is coiieid«red as the organ of the attor- 
 ney, and is under the same conditions of secrecy. Aa attorney's elerk(3) 
 cannot be called to prove a confidential communication. A barrister's 
 clerk cannot be called to prove the date of his master's retainer. (4) It 
 seems also that the jprivilege extend* to the personal representative of a 
 professional adviser. (5) 
 
 But a person by profession an attorney, if he be not so employed in th« 
 particular business which is the subject of inquiry (as, where he is- under- 
 sheriff at the time), is not precluded from giving evidence, though he may 
 
 have been consulted confidentially. (6) So a commanication with an 
 *138 *attorney's clerk, who is not acting in that capacity on behalf of his 
 
 principal, is not privileged. (7) And it has been ruled, that a person 
 who was consulted confidentially, on the supposition of his being an attor- 
 ney, when, in fact, he was not one, is compellable to answer. (8) 
 
 Medical and other advisers. The professional privilege is confined to the 
 cases above enumerated, of counsel, attorney, and solicitor. (9) There are, 
 indeed, eases, said BuUer, J., in the case of Wilson v. Rastall,{10) to which 
 it is much to be lamented that the law of privilege is not extended : those 
 in which medical persons are obliged to declare the information which they 
 have acquired by attending in their professiomal character. (11) This point 
 
 (1) 0u Barre v. Livette, Peake, 78, recognized 4T. B. 756. 
 
 Note 64. — All the reasons whicli apply to the attorneir, applytoan interpreter between 
 the client and attorney, of whom- he is merely the organ. Andrews v. Solomon. 1 Pet.C 
 C. R. 356. Et mde I'arker v. Carter, 4 Mimi. B. 273 ; and Jackson d. Haverly v. French, 3 
 Wend. B. 337. 
 
 (2) Parkins v. Hawkshaw, 3 Stark. E. 339 ; Btmhury v. Bunbury, 2 Beav. 173; Walker 
 V. WHdman, 6 Madd. 47. 
 
 (3) Taylor v. Foster, 2 C. & P. 195 ; Bowman v. Norton, 5 C. & P. 178 ; MiUs v. Oddy, 6 
 C. & P. 731 ; R. V. Upper Boddington, 8 D. & B. 733 ; Sibley v. Waffle, 16 N. Y. Ben. 183. 
 
 (4) Poote V. Hayne, R, & M. 165 ; S. C, 1 C. & P. 545. 
 
 (5) See Fenwick v. Beed, 1 Mer. 114. 
 
 (6) Wilson T. Bastall, 4 T. B. 753. See HiU v. Elliott. 5 C. & P. 436 ; R. v. Brewer, 6 
 C. & P. 383. 
 
 Note 65. — Annesley v. The Earl of Anglesea, Macnally, 341. TIius, where the party 
 cousulted the attorney confidentially as a friend, but not in the character of an attorney 
 or counsel for him, it was held not to come within the rule. Hoffman v. Smith, 1 Cain. 
 Rep. 157, 159. So where the fact communicated had no relation to the action. Biggs v. 
 Demiiston, 3 John. Cas, 198. So where the confidential communication to the attorney, 
 in respect to a cause of the client, was repeated by him to the same attorney, but after the 
 relation of attorney and client had ceased. Yordau v. Hess, 13 John. Eep. 492, 494. 
 Otherwise if it appear to be drawn out by artifica, with the view of being made evidence. 
 Id. ^ 
 
 D. delivered a note to his attorney, indorsed by N. & H., against whom the attorney 
 obtained separate judgments. N. paid the judgment against him, and requested the 
 attorney to collect that against H., for his (N.'s) benefit. It afterwards becoming material, 
 oil a proceeding against N., to have the note in evidence, it was held that the attorney 
 must produce it on a subpoena duces tecum, notwithstanding N.'s objection ; for this wit- 
 ness did not receive the note as N.'s, but as D.'s attorney. Neafie's Case, 4 C. H. Rec. 168, 
 before Golden, Mayor. 
 
 (7) Doe d. Pritohard v. Jauncey, 8 C. & P. 99. ' 
 
 (8) Fountain v. Young, 6 Esp. 113. The witness was clerk of the papers in Newgate, 
 and had formerly been cler^ to an attorney. In the Jurist for 1837, the propriety pf this 
 decision is doubted. And it may be observed, that if the principle of the case were 
 carried out, it might extend to the case of a communication made to an attorney who had 
 omitted to take out his certificate. See infra, pp. 138, 143. 
 
 (9) 4 T. E. 758; Vaillant v. Dodomead, 2 Atk. 524; 3 Swanst. 331. It was formerly 
 thought that a trustee was privileged. B. N. P. 184. » 
 
 (10) 4 T. E. 759. See also E. v. Gibbons, 1 0. & P. 97 ; B. v. Sparkes, cited in Du Barre 
 V. Livette, Peake, 77. 
 
 (11) See also the remarks of Lord Brougham, C, in Qreenough v. Gaskell, 1 Myl. & K. 
 108. See note 66. e . -e 
 
SEC. I,] In Professional Cor^olenee. Ill 
 
 was much considered in the Duchess of Kingetoii's Case,(l) -where Sir G. 
 Hawkins, who had attended the duchess as a medical man, was compelled 
 to disclose what had heea committed to him in eonfidence.i2) Comfideiitiai 
 communications to a friend are not privileged : in cases cnnmial as well as 
 civil, he is compellable, when required by courts of justice, to disclose what 
 has been impacted to him in conMeii(se.(3) Such evidence was received 
 against the prisoner in Dr. Ratcliffe'fe Case,(4) and in Lord Russell's 
 
 Case. (5) 
 *13'7 *In an early case,(6) where the defendant, in an action of debt on a 
 
 b9nd, pleaded the statute against buying and selling of offices, and 
 called a witness to show on what occasion the bond was given, Lord Hoit 
 is said to have refused his evidence, , because it' appeared, that he was 
 privately intrusted to make the bargain, and to keep it secret. But the 
 principle and authority of this case must be considered as having been 
 overruled by the case of ^ilson v. Rastall, and the later decisions on this 
 subject. 
 
 The bankers of one of the partiesi in a cause are bound to answer as to 
 the amount of the bala^nce of sudb party on a particular day. (7) And a 
 steward is not, like the legal adviser of a party,- protected by- his relative 
 situation from the disclosure of his knowledge of tha affairs of his employer, 
 or of the existence and contents of instruments, -with which he has become 
 acquainted in consequence of his employment. (8) 
 
 (1) 20 How. St. Tr. 613, fil4. 
 
 (2> By the Revised Statutes of New York (Vol. 2, p. 406, ,§ 78), and of Missonri (p. 633, 
 § 17), physicians and surgeons are not allowed to dieclose any information they may have 
 acquired fa attending a patient professionally, where such information was necessary to 
 enable them to do any profesraonal act for the patient. Greenl. Evid. 361, note 4, (3d edit) 
 
 (3) See Lord Kenyon, in Wilson v. Kastall, 4 T. B. 758. 
 
 (4) 18 How. St, Tr. 438. 
 
 (5) 9 How. St. Tr. 599. 
 
 (6) B. N. P. 284. 
 
 (7) Lloyd V. Freshfleld, 2 C. & P. 339. 
 
 (9) Falmouth (Earl of) v. Moss, II Price, 455. See also VaiHant v. Dodemead, 3 Atk. 
 6S4 ; by Buller, J., 4 T. H. 756. 
 
 Note 66. — The head or confidential clerk in a mercantile establishment is not privileged 
 from being examined as a witness in respect to the affairs of his piineipal. Corpgv. 
 Bobinson, 3 Wash. C. C. Rep. 388. Nor an attorney's clerk in respect to the private and 
 personal affairs of the latter, though his articles bind him to keep his master's secrets. 
 Webb. V. Smith, 1 Carr. & Payne, 837. So a confidential ageftt or factor must give 
 evidence of matters confidentially communicated to him (Holmes T. Comegys, 1 Dallas, 
 439); and a banker of one of the parties is bound to dis(9ose what such party's l>alasce 
 was on a given day. Lloyd v. Freshfield, 3 Carr. & Payne, 335. See post p. 16ff. 
 
 The privil^e does not extend to the clerk or student of the attorney or counsel, and 
 he is bound to testify to fiacts of which he acquired a knowledge while in the office of the 
 attorney, though such as the attorney himself could not disclose. Andrews v. Solomon, 
 1 Pet. C. 0. Rep. 356. But in Power v. Kent (1 Cowen's Rep. 173), it was decided that 
 the clerk represents the attorney, during his absence, as to all the ordinary proceedings 
 of the office, and has power to bind the attorney by waiving the usual ftirmalities of 
 practice, as entering a rule to amend. It would seem to follow that the clerk should be 
 under the same restrictions in regard to the business of the attorney as the attorney 
 himself; and in Jackson ex dem. Haverly v. French (3 Wend. 337), the opinion was 
 intimated by the court that the rule was appKcable to the clerk as well as to the attorney. 
 In a late English case, it was ruled at Nisi Prius, by Beat, J., that the privilege of not 
 disclosing confidential communications extends to the clerk of the attorney employed in 
 a cause, on the ground that attorneys are under the necessity of employing clerks, before 
 whom such communications must be made. Taylor v. Forster, 3 Carr. & Payne, 195. 
 And see Fbote v Hayhe, infra. And in a still later ease, it was held that the clerk of an 
 attorney, who had been employed by a mortgagee to make an abstract of the mortgage 
 deeds, was not a competent witness to prove the contents of the deeds (the mortgagee 
 having refused to produce them), Mr. Justice Bayley sjiying that the clerk stood precisely 
 in the same situation as his' toaster. The King v. The Inh. of Upper Boddihgton, 8 Dowl. 
 ft By. 726; 16 N. T. R. 183. Otherwise if the deeds form no part of the client's title. 
 Doe dem. Courtail v. Thomas, 9 Barn. & Cress. 288. 
 
 The privilege does not extend to other professional men. ^ Dixon ▼, Parmelee, 3 Verm. 
 
112 Of the Rule as to Commuhicationa [ch. vii. 
 
 ,*138 A confession to a clergyman, (1) or to a popish priest,(2) is not priv- 
 ; ileged. But in one case, (3) Best, C J., said, that he would never 
 
 bompel a clergyman to disclose communications made to him hy a prisoner; 
 
 but if he chose to disclose them, he should receive them in evidence. (4) 
 *139 Bentham, *who is well known as the uncompromising advocate for the 
 
 abolition of nearly all the rules of English law relating to the exolu- 
 
 Rep. 185. A physician is bound to testify to, facts which were communicated in confidence 
 to him in his professional capacity. Sherman v. Sherman, 1 Root. 486. So confessions 
 made to a Protestant divine will be received in evidence. Smith's Oase, 3 N. Y. C. H. 
 Eec. 77 ; Oilman's Case, Carr. Suppl. 61, also cited in Broad v. Pitt, 3 Carr. & Payne, 518, 
 S. P. So penitential confessions, made in confidence to members of the same church of 
 ■which the prisoner is a member, are not privileged. Commonwealth v. Drake, 15 Mass. 
 Bep. 161. But it was held by Clinton, Mayor, in the New York Court of General Sessions, 
 that confessions made to a Roman Catholic clergyman in confidence, and whose duty it is 
 to receive auricular confessions according to the canons of that church, will not be received 
 in evidence. Smith's Case, cited supra, and note to that case, 2 N. Y. C. H. Eec. 80 ; 
 Butler V. Moore, Macnally, 253, contra. 
 
 Whether, where a clerk or servant is bound by articles to keep his master's secrets and 
 is called on to disclose a communication prejudicial to his master, or a matter expressly 
 confided in him as a secret, he will be holden to testify? Quere, The inclination of 
 Littledale, J., seemed to be that he would not, in Webb v. Smith (1 Carr. & Payne, 337). 
 In Foot V. Hayne (Id. 545), IBcarlett complained that his clerk was compelled to attend on 
 a subpoena duces tecum to produce his retainer book, in order to fix the time of his 
 retainer ; and Abbott, C. J., seems to have expressed himself very decidedly that the 
 counsel's clerk should not be received to prove such a communication between the counsel 
 ^nd his client. And md. Eicke v. Nokes, 1 Mood. & Malk. 303. 
 
 And now, by statute in Ne^ York, no minister of the gospel, or priest of any denomi- 
 nation, is allowed to disclose any communication made to him, in his professional 
 character, in the course of discipline enjoined by the rules or practice of his denomina- 
 tion. 2 R. S., 406, g 72. And no practitioner of physic or surgery, duly licensed, shall 
 be allowed to disclose any information which he may have acquired in attending any 
 patient in a professional character, if the information was necessary to enable him to 
 prescribe for his patient as a physician, or do any act as a surgeon. Id. § 73. People v. 
 Stout, 3 Park. Cr. 670. 
 
 A physician consulted by the defendant in an action on the case for seduction, as to the 
 means of producing an abortion.is not privileged from testifying, by the New York stat- 
 ute forbidding a, disclosure of information received by a physician to enable him. to 
 prescribe for a patient. Hewitt v. Prime, 21 Wend. B. 79. 
 
 Communications made to a confidential friend in confidence are not privileged ; and such 
 friend is bound to disclose them when called upon as a witness, although made under an 
 injunction and promise of secrecy. Mills v. Griswold, 1 Root, 383 ; Calkins v. Lee, 2 
 Boot, 363. This was once made a grave question. Bulstrod v. Letchmere, 2 Freem. 5. 
 So a person in no way connected with the attorney, who is present at a communication 
 iijade to the attorney by the client, is bound to testify to such communication. Jackson 
 ex dem. Haverly v. French, 8 Wend. Rep. 337 ; Gainsford v. Grammar, 2 Campb. 10 S. P. 
 
 But the same reasons which apply to an attorney apply equally to an interpreter 
 between the client and attorney, of whom he is merely the organ. Andrews v. Solomon, 
 1 Pet. C. C Rep. 356 ; Parker v. Carter, 4 Munf. 273 ; Jackson ex dem. Haverly v. French, 
 3 Wend. Bep. 337. 
 
 In New Hampshire, the privilege is not confined to communications with professional 
 men, but extends to any person employed to manage a cause as counsel. Bean v. Quimby, 
 5 N. H. Rep, 94. The court put this on the construction of a local statute, authorizing a 
 man to manage his cause by agent, whether he be licensed or not. Id. 97. 
 
 (A different rule prevails in Vergiont, where it is held that communications made to a 
 person who is not an attorney, nor clerk to an attorney, but is pursuing the study of the 
 law, are not privileged, though made in reference to the management of a suit. Holman 
 v. Kimball, 22 Vt. .{7 Washb!) 555. So in Massachusetts, if a person goes to the office of 
 an attorney to obtain advice and consults with a student at law, his statements to him 
 are not privileged. Barnes v. Harris, 7 Cush. 576.) 
 
 (1) R. V. Sparkes, cited in Du Barre v. Jjivette, Peake N. P. 77 ; R. v. Qilham, R. & M. 
 186. 
 . (2) Butler v. Moore, Macnally, 263. 
 
 (3) Broad v. Pitt, 3 C. P. 519; S. C, Mo. & M. 234. 
 
 (4) By the laws of New York (Vol. 2, p. 406, § 73), and of Missouri (p. 623, § 16), no 
 minister of the gospel or priest of any denomination is allowed to disclose any confessions 
 made to him in his professional character, in the course of discipline enjoined by the 
 rules or practice of such denomin«tion. Greenl. Evid. 861, n. 8. 
 
SBC. I.] InProfessional Confidence. 113 
 
 sion of evidence, makes an exception with regard to confessions made to a 
 Catholic priest, which, he contends, the priest ought not to he compelled to 
 disclpse, upon the ground that confession, in the Roman Catholic church, is a 
 religious duty, and that to compel the disclosure, by means of punishment, 
 would be in effect to punish the party for religious opinions. He gives 
 other cogent reasons for the propriety of excluding such testimony. (1) 
 
 In a case at Nisi Prius, where a clerk to the commissioners of the prop- 
 erty tax was called to prove the defendant a collector, and refused to give 
 evidence, on the ground of his having taken an oath of oflEice not to disclose 
 what he should learn as clerk, respecting the property tax, except with the 
 consent of the commissioners, or by force of an act of Parliament, the court 
 held that this oath would not exempt the witness, and that it must be con- 
 strued as containing an implied exception of the evidence which he might 
 be called to give in courts of justice, m obedience to the writ oi subpoena. {2) 
 And an articled clerk to an attorney, who is bound by his articles to keep 
 his master's secrets, is at liberty to give in evidence siiatements of his master 
 not made under a charge of secrecy, nor affecting the interests of the mas- 
 ter's client, though the disclosure may tend to support a civil action against 
 the master. (3) 
 
 It appears that communications, made to a merely licensed conveyancer, 
 would not be privileged; (4) but they would be if made to an attorney in 
 that capacity, (5) or in the capacity of a scrivener to raise money, (6) 
 provided the attorney was consulted as the party's own professional 
 adviser. (7) u 
 
 When privilege commences and ends. With respect to the nature of 
 *140 the communications which are privileged, *the cases may be divided 
 into those which have reference to some suit, and those in which no 
 suit was in contemplation. 
 
 It was observed by Lord EUenborough, C. J., in Gainsford v. Grammar,(8) 
 that it had been established in Cobden v. Kendrick,(9) and Wilson v. 
 Rastall,(10) that communications by a party to a witness, if not made in 
 confidence (whether prior or subsequent to the relation of client and attor- 
 
 (1) See Rationale of Judicial Evidence, Bk. 9, pt. 3, qh. 6, and the remarks by the editor 
 (Mr. John Mill), appended to Bk. 9, pt. 3, oh. 5, commenting upon the misrepresentations 
 of Bentham's doctrine by a writer in the Edinburgh Review. 
 
 (2) Lee q. t. v. Birrel, 3 Campb. 337. 
 
 (3) Webb V. Smith, 1 C. & P. 337 ; S. C, Ry. &. M. 106. 
 
 (4) By Parke, B., in Turquand v. Knight, 2 M. & W. 100. Sir D. Evans, in his edition 
 of Pothier, suggested that it followed from Wilson v. Rastall, that communications to a 
 conveyancer were not privileged, though he might happen to be a counsel or an attorney, 
 
 (5) Cromack v. Heathcote, 2 B. & B. 4. 
 
 (6) 3y Lord Abinger, in Turquand v. Knight, 3 M. & W. 100. See also Harvey v. Clay- 
 ton, 221, n. ; Anon, Skinn. 404. 
 
 (7) See R. v. Farley, 2 C. & Kir. 313, 318, post. 
 
 (Where an attorney is employed professionally to draw an instrument, the instructions 
 given to him for that purpose are under the seal of professional confidence. The Bank of 
 Utica v. Mersereau, 3 Barb. Ch. 528. The same doctrine was held in Williams v. Fitch, 
 18 N. y. R. 546, 551 ; a conversation with two persons in respect to an usurious agree- 
 ment between them, is privileged, and cannot be disclosed without consent of both. 
 Whiting V. Barney, 38 Barb. 393. He may be called upon to prove the existence of a 
 paper, and that it is in his possession, but cannot be compelled to produce it, or prove its 
 contents, it being iatrusted to him by his client in his professional character. Coveney v. 
 Tannahill, 1 Hill R. 33 ; Kellogg v. KeUogg, 6 Barb. 116.) 
 
 In Prouty V. Eaton (41 Barb. 409, 416,) the court, per Johnson J., comments upon 
 the decision in Whiting v. Barney, and holds that the attorney of one of the parties, the 
 mortgagee cannot be prevented from testifying to the terms of the agreement between 
 the mortgagors and mortgagee, on the ground that it was in the nature of a privileged 
 communication. 
 
 (8) 2 Campb. 10. 
 
 (9) 4 T. R. 431. 
 
 (10) Ibid. 753, and see Cuts v. Pickering, 1 Ventr. 197. 
 
 Vol. I. 15 
 
1\^ Of the Hule as to Communications [ch. vii. 
 
 ney subsisting between them), are not privileged; but that this confidential 
 relation might be formed before the commencement of any suit.' An attor- 
 ney may be retained and confided in as such before the commencement of 
 any suit, and, in such a case, he is not bound to disclose whatever has been 
 revealed to him previous to the suing out of the writ. In Clark v. Clark,(l) 
 Lord Tenterden, C. J., observed, " Suppose a party to consult his 
 *141 attorney whether or no he should bring or resist an action, *it could 
 not be doubted that such a communication would be privileged, 
 though no suit was pending at the time : " and he held, that where a matter 
 was in dispute and controversy, although no cause was in existence with 
 respect to it, the communication was privileged. 
 
 But, although a suit be pending or recently terminated, comniunications 
 made to a counsel or attorney by his client are not privileged if they are 
 not ma,de to the person in his capacity as counsel or attorney, or for the 
 purposes of the suit. Thus, in the great case of Annesly v. Lord Anglesea,(2) 
 where the question of privilege was very fully discussed, the attorney of a 
 prosecutor of an indictment was allowed to state what his client had observed 
 to him pending the proceedings on the indictment, viz : that he would give 
 a large sum of money to have the prisoner hanged. 
 
 Where a person (who had brought an action on a promissory note, which 
 was afterwards compromised by the defendant) had informed the attorney, 
 after the compromise and in the interval between the time when a warrant 
 of attorney was given and the time when the money was to become due, 
 that there never had been any consideration for the note, the Court of 
 King's Bench held that the attorney was compellable to disclose that 
 circumstance in an action brought to recover back the money. " The com- 
 munication," said Lord Kenyon, C. J., "was not here made in contemplation 
 
 (1) 1 M. & Ro. 5. In this case, Lord Tenterden says, that the doctrine reported to have 
 been laid down by him in Williams v. Mudie (Ry. & M. 34 ; S. C, 1 C. & P? 138), was too 
 narrow, and it would seem that a formal retainer is not essential. 
 
 Note 67.^ — Kent, J., in Riggs v. Denniston (3 John. Cas. 198, 203), says that, to be 
 privileged, the communications must be made as instructions for conducting the cause ; 
 not as mere gratuitous and irrelevant remarks. And communications, though they 
 do not respect a suit, if they are made with a view to professional assistance by the client, 
 to the attorney, counsel or solicitor, are protected. Walker v, Wildman, 6 Madd. 47. 
 
 A licensed counsel or attorney, employed as such to draw a deed, must be considered 
 as acting in the line of his profession, and bound to conceal the facts disclosed by the 
 person who employs him. Parker v. Carter, 4 Munf. Rep. 373. 
 
 Whether the evidence of a person employed by both persons as attorney or scrivener, 
 to write a bond for a fraudulent purpose, is admissible to prove the fraud ? Q^ere. Clay 
 V. Williams, 2 Mumf. Rep. 105. 
 
 Commlmications made to an attorney employed to foreclose a mortgage by advertise- 
 ment and sale under the statute of New York, concerning mortgages, such communications 
 having relation to the business of the foreclosure, are considered as confidential com- 
 munications between attorney and client, and are entitled to the protection of that 
 relation. Wilson v. Troup, 7 John. Ch. Rep. 35 ; S. C. alflrmed in the Court of Errors, 
 3 Cowen's Rep. 195. 
 
 It was held, in a late case in England, that an attorney who had been employed by a 
 mortgagee to make an abstract of the mortgage deeds, could not be at liberty to produce 
 them, or the abstract, or give evidence of their contents. The King v. The Inhabitants 
 of Upper Boddington, 8 Dowl. & Ry. 726. Otherwise, if they do not relate to his client's 
 title. Doe dem. Courtail v. Thomas, 9 Barn, & Cress. 288. 
 
 In New York, the farthest our courts have gone, is to protect communications made in 
 the course of a summary foreclosure. Wilson v. Troup, supra. Virginia goes even to the 
 draft of a common deed. Parker v. Carter, supra. Vermont seems to confine herself to 
 a suit pending or in contemplation. Dixon v. Parmelee, post, note 68. While Ireland 
 extends the rule to a consultation upon the legal effect of a newspaper article. 
 
 (In order to render communications from a client privileged, they must come directly 
 from the client, orally or by papers given to him. And the privilege in some cases termi- 
 nates with the death of the client. Crosby v. Berger, 4 Edw. Ch. 354. Qwere. Whether 
 the seal of confidence can ever be removed except by the act of the party, or his implied 
 consent 1 Chew v. Farmers' Bank of Md., 3 Md. Ch. Decis. 231.) See notes 68 and 69. 
 
 (2) 17 How. St. Tr. 1331. 
 
SEC. I.] In Professional Confidence. 115 
 
 of a suit ; on the contrary, the purpose in view had been already obtained ; 
 and what was said by the client was from exultation, in having before 
 deceived his attorney as well as his adversary."(l) 
 
 So, where an attorney brought an action for his professional services, (2) 
 and the defense was that he had b^pn employed by another party, and not 
 by the plaintiff, it was held that the plaintiff's agent, an attorney, might be 
 asked whether the plaintiff had not said, upon introducing that party to 
 him, thdt he (the plaintiff) had been employed by that party. It was said 
 by the court: "This is in no respect a privileged communication. It is 
 something said by the plaintiff to his agent on introducing an individual 
 who was to be the plaintiff in another action. The privilege does not attach 
 to everything which the client says to his attorney ; the test is whether the 
 communication is necessary for the purpose of carrying on the proceeding 
 in which the attorney is employed; if it is necessary, it .becomes privileged." 
 
 The privilege of professional confidence is not, however, limited to cases 
 in which a suit is in contemplation. This is manifest from the authorities 
 which will be presently noticed, in which the attorneys of parties not con- 
 nected with the suit have not been allowed at the trial to reveal mat- 
 *142 ters of which they have acquired knowledge through the *professioj(ial 
 confidence of their clients. But, as between the parties to a suit, it 
 is only lately that the law has been relieved from much perplexity in tho^e 
 cases where professional confidence has existed unconnected with the imme- 
 diate suit. , Upon a consultation on this subject between Brougham, C, 
 Tindal, 0. J., Lyndhurst, C. B., and Parke, J., they ! considered that the 
 privilege was not confined to cases where the communication related to the 
 bringing or defending an action. (3) 
 
 It seems that the privilege extends to all, cases where a corrimunication 
 
 is made to an attorney or other legal adviser in his professional capacity ;(4) 
 
 2.~\ that the rule is correlative with that which governs the summary 
 
 jurisdiction of the courts over attorneys. (5) That rule has been 
 
 (1) Cobden V. Kendrick, 4 T. R. 432. 
 
 (2) Qillard v. Bates, 6 M. & W. 547. 
 
 (3) Greenough v. Gaskell, 1 M. & K. 98. And see 4 B. & Ad. 876 ; 5 C. & P. 593. See 
 also Bolton v. Liverpool (Corporation), 1 M. & E. 88 ; Moore v. Terrell, 4 B. & Ad. 870 ; 
 Doe d. Shellard v. Harris, 5 C. & P. 594. The authorities for restricting the privilege 
 were Williams v. Mudie, Ry. & M. 34 ; S. C, 1 C. & P. 158 ; Broad v. Pitt, M. & M. 233 ; 
 S. C, 3 C. & P. 518 ; Duffin v. Smith, Peake, 108 ; Wadsworth v. Hamshaw, 3 B. & B. 5, n. 
 
 (4) Doe d. Shellard v. Harris, 5 C. & P. 598 ; Walker v. Wildman, 6 Madd. 47 ; Doe d. 
 Peter v. Watklns, 3 Bing. P. C. 421 ; by Lord Brougham, C, in Greenough v. Gaskell, 1 
 M. & K. 101. 102. 
 
 (5) By Alderson, J„ in Turquand v. Knight, 2 M. & W. 101. 
 
 Note 68. — The secrets of his clipnt, which an attorney or counselor is bound to keep, 
 are the oommanjpations and instructions of his client relative tp.ih^ management or 
 defense of his cause, and not any extraneous or impertinent communicationB. Dixon v. 
 Parmelee, 2 Verm. Hep. 185. Thus, that the client had concealed himself to avoid being 
 served with process, was held not to be a privileged communication. Biggs v. Denniston, 
 3 John. Cas. 198. , , 
 
 An attorney may be called to testify to a, collateral f?,ct within his own knowledge, or 
 to a fact which he might know ysfithout its being intrusted to him by his client. Vid. 
 Bieeves v. Burton, 6 Mart. Lou. Rep. (N. S.) 283, 284. As that a bond was lodged witli 
 his client by w;^y, of indemnity, or that he expressed himself satisfied wHjh a certain 
 security. Heister y. Davis, 3 Yeates, 4. /So where, without any communication from his 
 client on that subject, he acquires a knowledge of his client's handwriting, he may be called 
 to testify to its identity (Johnson v. ttaverne, 19 John. Rep. 134), thougli it be by seeing 
 him sign a bail bond in the caiiae. Hurd v. Moring, 1 Carr. & Payne, 545. See note 72. 
 So he may be examined as to, a particular paper being received from his client (Eicke Vi 
 Nokes, 1 Mood. & Malk. 303), and whether a note, put, into his iian(}s,for pollectjon, was 
 indorsed or not. Baker v. Arnold, I Caii;ie's Rep. g58. So an attorney or coimselor is 
 competent to prove that an administrator, for whom he acts as a,ttorney or counsel, 
 directed an exhibit to be filed in the Court of Chanpery, in which he acknowledged a debt 
 as due by the intestate, which was adjudged to take thecase out oif the Statute of Limit- 
 ations. Forbes v. Perrie's Adm'r, 1 Har. & John. 109. So that he has a paper in court 
 
llg Of the Mule as to Gomrmlhications [dh. vii. 
 
 relating to tlie cauBe, in order' that a notice to produce it immediatelyi may be sufficient. 
 Khoades' Lessee T. Seljn, 4 Wash. C. C. Eep. 715, 718 ; P()S«, notes 69, 71. 
 
 It is held that if, after the relation of attorney and client has ceased, the latter volun- 
 tarily repeat what he had cotamunicated while the relation existed, the attorney is not 
 privileged from disclosing it. Yordan v. Hess, 13 John. Rep. 493. 
 
 In Mafisachusetts, it has heen ruled by Putnam, J., that the attorney for the common- 
 wealth could not be called, upon to testily to what passed in the grand jury's room. The 
 Commonwealth v. Tilden, Peb., 1838, Np;tfplk county. 
 
 The counsel of F. gave as such counsel a notice to B. of a deed. In an action by D. 
 against P., this'notice being material to P.'s defense ; held, that the counsel was bound to 
 swear to it as a witness, though the act was in the line of his profession. The court 
 seemed to consider this act not privileged in its own character, and they confine the privi- 
 lege to communications , made intermediate the retainer aafl the termination,, of the 
 suit, citing 4 T. E,431 ; to facts delivered from the information of the client, citing 7 East, 
 357 ; and as to Erections in the course of a suit, though given by the attorney, if privileged 
 iui any ^ase, yet being such as ahy common person o? ordinary prudencd would give, they 
 hold that they would liot come within the rule, citing 9 . Com. Law Rep. 233, and Bull. N. 
 P. 384. . Dixon v. ParmeleeJ 3 Verm. Rep. 185, 188, 189. They remark that where an 
 attorney is retailed generally, and a conversation is had on a subject which afterwards 
 gives rise to a suit, the attprney i8,boui}d to disclpse it, :there being no suit: inrcontempla- 
 tion when the conversation was had; citing for this,' Anhesly v. The Earl of Anglesea, 
 Macnally; 341. ' FVd. 3 Verm'. Rep. 180. So counsel was held to answer as to a proposi- 
 tion of compromise made by him in behalf of hjs debtor' to his creditors, as not being 
 confidential in its nature, but published to the creditors. M'Tavish v. Denning, Cor. 
 Spencer, J., Anth. N. P. Rep. 113. Yet, if confidential, the communication would have 
 been privileged, whether made in, respept to a suit commenced or to be commenced. Id. 
 On trial of an itldictment for a libel against the Lord Lieuteiant of Ireland, R. VT. swore 
 that the traverser asked him professionally whether it was tafe to publish a cer^tain paper. 
 The communication did not in, any manner irelate to any cause pending or Ibl coritempla- 
 tion. Qn,E.V^^. being afike(J.as to the contents of the paper, held that the communication 
 was privileged, as the traverser was seeking advice rather hqw to avoid, than, to commit a 
 crime. The communication, to be privileged, need no£ necessarily concern a cause. Should 
 one confide to Pbunsel a treasonable design, and wish to know how he inight execute it 
 BO as to escape punishment, semble, as concealment would be a misprision, the communi- 
 cation would not be, privileged ; but, if a man meditates an act whichj exceeding certain 
 limits, would become criminal, and confined lyithin certain boi^nds, would be perfectly 
 justifiable, the person asking advice must be considered as seeking how he may avoid, 
 and not how he may commit a crime ; and such a communication is privileged. Kei v. 
 Haydn, 2 Fox & Smith, 379. But see casep contra, ante, of the text, in note, that the 
 communication, must relate tf> a suit commenced or in contemplation. See note 67. 
 Counsel may^bp examined as to the mere fact of being retained, but not as to the capacity 
 in which the client retained him. Thus, in an action of trespass for mesne profits, the 
 plaintiffs had recovered possession of the premises in an ejectment, in which C. had ob- 
 tained leave to be made defendant as landlord of the premises. At the trial of the present 
 suit, the plaintiff introduced H & D., and asked them whether they were retained by 
 the present defendant to conduct the ejectment suit for his benefit, as landlord of 
 the premises. Held, that the counsel might answer as to tlie mere fact of retainer, but not 
 whether the retainer was for the benefit of the defendant, as landlord of the premises, as 
 the answer would involve a disclosure of the nature and extent of the title and claim set 
 up by the defendant to the premises, for the purpose of conducting the defense of the 
 suit. Chirac v. Bemicker, 11 Wheat. 380. See note 71. An attorney or his clerk cannot 
 be compelledHo tesufy on the trial in respect to the time when he was retained. Foote 
 V. Hayne, 1 Carr. & Payne, 545. But he may as to the person who retained him See 
 notes 67, 71, 73. 
 
 (Privileged communications include all statements and writings made or given by a 
 client to his attorney or counselor for the purpose of obtaining professional advice or 
 assistance on the subject of his rights or liabilities. Wetherbee v. Bzekiel 25 Vt 47- 
 Parkhurstv. McQraw, 84 Miss. 134 ; Swift v. Perry, 13 Geo. 138; Miller v' Weeks 33 
 Penn. (10 Harris) 89 ; Whitiiig v. Barney, 88 Barb. 398, qualified in respect to a like 
 usurious agreement in Prottty v. Eaton, 41 Id. 416, Communicatipns made to an attor- 
 ney as a: friend are kiot privileged. Galtra v. WalcOtt, 14 111 89. Nor are communications 
 made by a client to his attorney privileged Unless the latter is acting as such in the 
 matter to which the communication relates. Brandon v. Gowipg, 7 Rich. (S. C.) 459.) 
 They are not privileged when made to an attorney acting under a general retainer, and 
 also as agent or factor, relating to the client's demands, and other property in a particular 
 place ; BUPh facts consisting mainly of instructions in regard to the management of the 
 business, given from time to time. ' And the rule itself yields, where a disclosure becomes 
 necessary to protect the attorney's personal rights. Rochester City Bank v. Snydam, 5 
 How. Pr. 254. 
 
SEC. I.] In I^ofessional Gonfidfmce. 117 
 
 *143 *thus laid down : " Where aii attorney is employed in a matter wholly 
 unoooneotedj with his professional character, the court will not inter- 
 fere in a summary way to compel him to execute faithfully the trust reposed 
 in him. But when the employment is so connected with his professional 
 • character as to afford a presumption that his character formed the 
 *144 ground "fof his employment by the client, there the court will exer- 
 cise this jurisdiction. (1) 
 A comtQunication made to a solicitor, if confidential, • is privileged, in 
 whatever form it is lioade., If it would he privileged when communicated 
 in words spokw orwritteuj it wUl be privileged' equally when conveyed by^ 
 means of sight instead of words, Thus, an attorney cannot give' evidence 
 as to the fact of the destruction of an. instrument which he has been admit- 
 ted in wnfidenoe to see destroyed. (2) . . 
 
 It has been held that communications mjade between a client and his 
 attorney, respecting the sale and purchase of estates, are privileged, although 
 no suit be either existing or expected^ (3) And wheije instructions had been 
 given to an attorney fo^ drawing a deed, which the attorney refused' to draw, 
 apd the, deed, was drawn by another person — the validity of the deed being 
 afterwards questioned on the' ground • of iraud, in an action against the 
 sheriff, in which the attorney .first applied to: was not employed ^7 the Court 
 of Common J?leas refused a rule ni^i for a new trial, ion the ground that the 
 evidence of the attorney, as to the instructions he had received for drawing 
 the deed, had been rejected. (4) An attorney will not be allowed to make a 
 statement, derived from a knowledge of his client's title, that. his client has 
 no power to grant freehold leases. (5) ' '' 
 
 In an action of trover for a lease,, brought by the assignees of a bankrupt, 
 it was pleaded 'that before the bankruptcy the bankrupt deposited the lease 
 with the defendant as a collateral- security. At the trial .the plaintiffs 
 endeavored to show that the lease was deposited after an act of bankruptcy, 
 and they proposed tO ask a witness, who had been the attorney for 
 *145 th« bankrupt after the act of bankruptcy, and who had been *applied 
 to by him to raise the money, whether the bankrupt had not the 
 lease in his possession at that time, and whether he had not brought it to 
 him for the purpose of raising money upon it; it was held that the witness 
 could not be allowed to answer the question. (6) 
 
 JVoduction of documents. The principle of protection afforded to pro- 
 fessional confidence, in regard to communications made by a client, must 
 obviously preclude an attorney from producing or disclosing the contents of 
 
 (1) E» parte Aitken^ 4 B. & A. 49. See also, Ex parte Yeatman, 4 Dowl. P. C. 309. 
 
 (2) Bobsonv. Ketop, 5 Esp. 54. 
 
 It is not necessary that the client or person seeking the advifce of an attorney or sounsel, 
 should enjoin secrecy, or should be aware of his right to demand prOfesaiOnal confidence, 
 to render his statements and communications privileged. McLellan v. Longfellow, S3 
 Maine Reports, 494. Preliminary conversations, wiere no suit is brodght, are also privi- 
 leged. ■ Bead v. Smith, 3 Carter, 160. But the attorney is not restrained from stating 
 facta communicated to him by a person seekingto engage him, which are stated to show 
 that his cause does not conflict with the. interests of a client for whom the attorney is 
 already employed. ' Heaton v. Findlay, 13 Penn. Sta,te E. 304. Nor are communications 
 between the attorneys or solicitors of opposite parties privileged. Gore v. Harris, 8 Eng. 
 Law & Eq. 147. But if the attorney of the plaintiff acquires, documents from the wife of 
 the defendant, on; the understanding that, they are to be used fox her husbandj they are 
 privileged. Cleve v. Jones, 8 Bng. Law & Bq. 554. ' ' 
 
 (3) Mynn v. Joliffe, 1 MoJ & B.' 336. See also a case cited lb. tried before Parke, J. 
 And see by Richardson, J., in CJonnack v. Heathcote, 2 B. & B. 6. ■ ■ m i 
 
 Bank of Utica v. Mersereau, 3 Barb. Ch. R. 528. In EeUogg v. Kellogg; the counsel 
 was excused from producing deeds in his possesaion, received by him in his character as 
 counsel, and from speaking of their contents. 6 Barb. 116 ; 18 N. Y.Eep.i 546. 
 
 Cormack v: Heathcot«, 2 B. & B. 4 ; and see Doe d. Shellard v. Baixis, 5 C. & P. 594. 
 
 Moore v. Terrell, 4 B. & A. 878. i : / . 
 
 Turquand v. Knight; 2 M. & W. 98. 
 
118 Of the Rule as to Communications [ch. tii. 
 
 deeds or other papers deposited with hun confidentially, in his professional 
 character. "The names, times or dates, contained in a -written instrument," 
 said Lord Ellenborough, C. J., (1) "though not known from the communi- 
 cation of the client, yet ' come to the knowledge of the attorney from the 
 delivery of the instrument by his client." An attorney cannot be compelled 
 to produce a will which he holds as attorney for a devisee claiming unde* 
 it; although it be suggested that it ought to be deposited in the Ecclesias- 
 tical Court, as being a will of personalty as well as realty.' (2) Nor is the 
 attorney for a party in a cause bound to state the contents of a document, of 
 which he first obtained a knowledge by having read it at the suggestion 
 of his' counsel, in the course of a consultation in the cause. (3) In 
 *146 this case, *Rolfe, B., doubted whether the information obtained bjr 
 the attorney was obtained in such a manner as to render it privi- 
 leged ; but he Concurred with the rest of the court (Alderson, B., and 
 Gurney, B.), that as the witness held the document in question as trustee 
 for the defendant, and upon that ground had properly refused to produce 
 it, he could not be compelled to state its contents. (4) 
 
 But though an attorney cannot be compelled to disclose the contents of a 
 client's deed in his possession, without the client's consent, yet if he do so 
 willingly, with such consent, the evidence may be received, provided the 
 proper foundation has been laid for the reception of it, by a notice to pro- 
 duce, or a subpoena duces tecum,.{5) 
 
 (1) In Beard v. Aekerman, S Esp., 119. And see Bate v. Kinsey, C., M. & B. 43. 
 
 (2) Doe d. Carter v. Lames, 3 Mo. & R. 47. 
 
 (3) Davies v. Waters, 9 M. & W. 608. 
 
 Note 69. — ^Where it appeared that a paper had been delivered to a, counsel by his 
 client, with instructions not to make use of it in court, it was held that he was not bound 
 to produce it in evidence in another cause, in which he was also counsel. Lynd v. Judd, 
 3 Day, 499. Much less is he bouiid to produce it in the action depending, or to testify to 
 its contents. Dale v. Livingston, 4 Wend. 558. An attorney or counselor is not obliged 
 to produce a paper intrusted to him by his client, in order that the grand jury may 
 inspect it on a charge of forgery against the client. Anon., 8 Mass. Eep. 370 ; State v. 
 Squires, 1 Tyl. Rep. 347. 
 
 ' An attorney retained to obtain an insolvent's discharge, and coming to the possession 
 of a receipt under the retainer, was held within the rule stateid in the text. Parker v. 
 Yates, 13 Moore 521. 
 
 An attorney having been intrusted with certain papers by his client, which, after the 
 termination of the suit, were left with the attorney by his client for the benefit of a party 
 to another cause for whom he was also attorney, it was held tljat he was not bound to 
 produce them in evidence. Jackson ex dem. King v. Burtis, 14 John. Rep. 391. But an 
 attorney or counsel may be compelled to testify whether a deed of other instrument was 
 delivered to him by his client, or is in his possession or not, and whether it is in court, so 
 as to enable the adverse party, on his refusing to pioduce it after notice for that purpose, 
 to give parol evidence of its contents. Eicke v. Nokes, 1 Mood. & Malk. 304 ; Sevan v. 
 Waters* Id. 335 ; Brandt v. Klein, 17 John. Rep. 335 ; Jackson ex dem. Nelison v. M'Vey, 
 18 John. Rep. 330 ; Bhoades' Lessee v. Selin, 4 Wash.'C. C. Rep. 715, 718. See notes 71 
 66,73,68. 
 
 An attorney receiving a paper of his client, D., and obtaining judgment upon it, and 
 who then proceeds to execution by the direction of N., is yet the attorney of D. in respect 
 to the paper, and bound to produce it against N. Neafie's Case, 4 C. H. Rec 168, before 
 Golden, Mayor, stated more at large, ante, note 65. 
 
 (Where a solicitor is employed as counsel, in a proceeding, neither the documents nor 
 consultations in reference to it can be called for. Follett v. Jefferyes, 1 Eng. Law & Eq. 
 173 ; Goodall v. Little, 3 Id. 79. But where a solicitor acts as counsel for a husband and 
 wife, in the execution of a deed releasing her jointure, and the latter afterwards files a 
 bill in equity, and asks for the production of the document, cases and opinions submitted 
 and taken in the transaction, the solicitor is deemed to have been counsel for both hus- 
 band and wife, and the documents must be produced. Warde v. Warde, 5 Id. 317. 
 
 In Phelps V. Prew, the attorney for the defendant subpoenaed an attorney to produce a 
 deed in his possession, which he declined to do ; then offered parol evidence of its con- 
 tents, and the court directed the attorney to allow the witness to look at the indorsement 
 upon the deed, as a means of identifying the instrument. 34 Eng. Law & Bq. 96.) 
 
 (4) See also B. v. Upper Boddingto'n, 8 D. & R. 736. 
 
 (5) Hibberd v. Knight, 3 Exoh. B. 11, explaining Marston v. Downes, 6 C. & E. 881. 
 
SEC. I.] In Professional Confidence. 119 
 
 _ As the same rule prevails in the courts of equity(l) and the ecclesias- 
 tical courts, (2) motions for the production of documents are refused in 
 those courts, where such documents are in the nature of professional com- 
 munications; (3) such as cases laid before counsel, with the opinions thereon, 
 (4) or books containing entries made by a solicitor relating to the drawing 
 the will of a deceased client. (5) 
 
 And it appears that the rule is applicable, where the legal adviser has 
 received the information not directly from his client, but from a third party 
 who had been directed by the client to communicate such information to 
 the legal adviser: thus in a case in an ecclesiastical court, (6) it was held 
 that letters were privileged which were written to the principal solicitor by 
 another solicitor who was employed by the client to collect evidence in the 
 matter, with directions to communicate it to the principal solicitor. 
 
 If the copy of a deed deposited confidentially with an attorney has been 
 obtained out of his hands for the purpose of being produced in evidence by 
 
 another witness, it seems doubtful whether such secondary evidence of 
 *147 its contents can be received, where the client refuses to produce *the 
 
 original. The question, whether such evidence can be given seems 
 to depend rather upon the principle which regulates the admissibility of 
 secondary evidence generally. (7) It may be sufficient to observe in this 
 place, that there seems never to have been any doubt, but that where an 
 attorney after receiving a proper notice to produce, or a subpoena duces 
 tecum, refuses to produce the document, secondary evidence of its contents 
 may be given, where the knowledge of such contents have not been derived 
 from the attorney himself, (8) for in such a case it would be the same thing 
 as if the client refused to produce the document. In a case tried before 
 Bayley, J., (9) the plain tiif's counsel having proved a certain deed in the 
 possession of the defendant, and the defendant refusing to produce it, 
 though he admitted having received notice, the counsel for the plaintiff 
 offered in evidence a copy of the deed, which had been obtained from one 
 who, many years ago, acted as attorney for the person under whom the 
 defendant claimed, and who had been intrusted by him with the original 
 deed in his professional character. The counsel on the part of the defendant 
 objected that this evidence ought not to be received, as the original deed 
 had been deposited confidentially wi4h the attorney ; and Bayley, J., refused 
 to admit it. He said : " The attorney could not give parol evidence of the 
 contents of the deed which had been intrusted to him ; so neither could he 
 furnish a copy. He ought not to have communicated to others what was 
 deposited with him in confidence, whether it was a written or verbal com- 
 munication. It is the privilege of his client, and continues from first to 
 last." But on a recent occasion, (10) Parke, B., said, with reference to that 
 case, " I have always doubted the correctness of that ruling. Where an 
 attorney intrusted confidentially with a document communicates the eon- 
 tents 01 it, or suffers another to take a copy, surely the secondary evidence 
 
 (1) See Bunbury v. Bunbury, 3 Beav. 173. 
 
 (2) See Smith v. FeU, 2 Curt. Ecc. B. 667. 
 
 (3) See Hughes v. Biddulph, 4 Russ. 190. 
 
 (4) Keece v. Trye, 9 Beav. 316; Bunbury v. Bunbury, 2 Beav. 173. See also Hare on 
 Discovery, ch. 3. 
 
 (5) Goodrich v. Jones, 2 Curt. Ecc. K. 671. 
 
 (6) Mackenzie v. Yeo, 2 Curt. Ecc. R. 866. 
 
 (7) Vide post. * 
 
 (8 See by Tindall, C. J., in Houlditch v. Cauty, 1 Am. C. P. R. 165 ; S. C, not S. P., 4 
 N. C. 411. See also Bottomley v. Usbome, Peake Ad. Ca. 101 ; Hibberd v. Knight, 2 
 Exch. R. 11. 
 
 (9) Fisher v. Heming, Leic. Lent Ass. 1809. See Bottomley v. Usborne, Peake Ad. Ca 
 101 ; Cook v. Hearn, 1 Mo. & R. 201. 
 
 (10) In Lloyd v. Mostyn, 10 M. & W. 481. 
 
120 Of the Rule as to Professional Confidence [ch, vn. 
 
 so olbtained may be produced. Suppose the instrument were even stolen 
 and a correct copy taken, would it not be reasonable to admit it ?" 
 
 It may be remarked, however, that in the case put of the document being 
 stolen, it may fairly be presumed that there was no breach of trust ; 
 whereas, in the case of an attorney giving a copy of a document intrusted 
 to him professionally, there would not only be a clear breach of trust, but 
 the principle of the inviolability of professional confidence would appear to 
 be infringed. The rule, it is to be remembered, is established for the benefit 
 of the client. Without the client's consent, the attorney will not be 
 allowed to produce papers which he has received professionally from 
 *148 *his client; in other words, he will not be permitted to divulge his 
 client's secrets. But if he may enable others to divulge those secrets, 
 the privilege of the client may easily be defeated. (1) 
 
 The case of Lloyd v. Mostyn (2) in which Parke, B., made the remark 
 just cited, was an action upon a bond of indemnity, which was in the pos- 
 session of one W., an attorney, who held it as the representative of a former 
 attorney of the obligor, and who was himself the defendant's general attor- 
 ney (though not the attorney upon the record), and he had undertaken 
 to produce the bond at the trial, if the judge should think he was bound to 
 do so : before the assizes, the bond had been sent by W. to the defendant's 
 attorney in the action, in London, for the purposes of inspection and admis- 
 sion under a judge's order ; and the plaintifi''s attorney had there taken a 
 corrept copy of it. It was held that, though W. might properly object to 
 produce the bond at the trial, the copy taken by the plaintiff's attorney 
 was, upon proof of notice to produce, admissible as secondary evidence of 
 the contents of the bond. 
 
 In this case, however, there was clearly no breach of trust, and no viola- 
 tion of confidence. The plaintiflT, upon principles that will be fully explained 
 hereafter,(3) was clearly entitled to an inspection of the bond, which was in 
 fact sent up to London for that very purpose, and having been inspected by 
 the plaintiif 's attorney, he was competent to prove its contents, either 
 by the copy he had taken, or from memory. 
 
 Privilege continues after confidence has ceased. When once the privilege 
 has attached, it continues forever, even though the confidential relation 
 between the parties may have ceased. Thus, where confidential communi- 
 cations have been made to an attorney with reference to a suit, the attorney 
 will not be at liberty to divulge them when the suit is determined ; his 
 mouth is closed forever. (4) And the confidence continues, though the 
 attorney has ceased to act for the party, and another attorney conducts 
 the suit, (5) or though the attorney has been struck off the roll. (6) 
 
 Rule in criminal prosecutions. Questions have sometimes arisen whether 
 the obligation to secrecy between attorney and client should be 
 *149 maintained, in criminal prosecutions. *There can be no doubt that 
 an attorney could not be compelled in a criminal case to disclose any 
 matter communicated to him professionally by his client with reference to 
 his defense. But how far the obligation to secrecy should extend in a 
 criminal case, where the attorney is in possession of any information or 
 
 (1) An action would lie against the attorney, for a breach of duty in so divulging his 
 •client's secrets. See Taylor v. Blacklow, 8 N. C. 385. 
 
 (2) 10 M. & W. 478. 
 (8) Post, Vol. II. 
 
 (4) By Buller, J., in Wilson v. Bastall, 4 T. R. 753. 
 
 Crosby v. Berger (4 Edw, Ch. 254), allows that the privilege may terminate, in some 
 icasos, after tlio death of the client. But the rule is generally stated, as in Chew v. Far- 
 mers' Bank of Maryland, and in the text. 2 Md. Ch. Decis. 281. 
 
 (5) Parker v. Yates, 12 B. Moore, 520 ; Petrie's Case, citoU 4 T. R. 756. 
 (8) Cholmondeley (Earl) v. Clinton (Lord), 19 Ves, 268. 
 
SEC. I.] In Criminal Cases. 121 
 
 document which he has obtamed jnthout reference to the prosecution, 
 appears to be doubtfuL > 
 
 In the case of The King agt. Smith, (1) which was a prosecution for the 
 forgery of a promissory note, an attorney, who had the note in his- posses- 
 sion, refused to produce it before the clerk of arraigns. Who required it for 
 the purpose of setting it out in the indictment ; for this he was summoned 
 to appear before the judge, and show cause why he shotild not produce the 
 note. He accordingly attended, together with the counsel for the prosecu- 
 tion, and the counsel for the prisoner. Holroyd, J,, iaquired minutely into 
 the circumstances by which he 'had the note in his ■ possession ; when it 
 appeared, on the statement of the attorney, that he had' been consulted by 
 the prisoner on the note in question, and that by his direction he had com- 
 menced an action to recover the amount of the note against the person in 
 whose name it was now supposed to be forged : that a short time afterwards 
 he. had been summoned tsefore a magistrate, tke prisoner having been 
 apprehended on a charge^ of forgery, 'and he was then desired to produce 
 the note : upon this, he inquired of the prisoner, who was present, Whether 
 he would consent to its being produced : the prisoner consented, asserting 
 his innocence, and the note was accordingly produced. The magistrate, 
 after taking the depositions of witnesses, -remarked that he thought it 
 would be proper to deposit the note in the hands of the high constable : on 
 which the attorney saidj that as the note had come into his hands profes- 
 sionally from his client, he expected to have it restored to him, at the same 
 time asking the prisoner whether he would consent to its being deposited 
 with the high constable, and the prisoner replied he wished it to be placed 
 in the hands of his attorney. The magistrate returned the note to the 
 attorney, observing that he would doubtless, have notice to produce it at 
 the trial. The attorney (who was not, however, einployed professionally 
 for thei prisoner in the ensuing triaH had 'been, subpoenaed to produce the 
 note, which was still in his possession; but, before he was subpoenaed, a 
 demand of the note had been made tipon him by the attorney now employed 
 in the prisoner's defense. On these facts, the question was argued by the 
 counsel for the prosecution and the counsel for the prisoner ; and Holroyd, 
 J., said he would consider the point. On the following day the subject was 
 again mentioned, when he refused to make an order upon the attorney to 
 produce the note, or to give a copy of it to the clerk of arraigns. A bill 
 charging the prisoner with forgery was prepared, and found by the 
 *150 grand jury. At the trial, the *same attorney was called on the part 
 of the prosecution for the purpose of producing the note ; and, on 
 his re-stating the facts above detailed, the learned judge declared his 
 opinbn, that he ought not to produce it. Secondarjr evidence of its con- 
 tents was not offered ; the prosecution consequently failed ; and the prisoner 
 was acquitted. 
 
 In the case of The Queen agt. Avery, (2^ however, Patteson, J., is reported 
 to have held the case of The King agt. Smith not to be good law. In The 
 Queen agt. Avery, it appeared' that the prisoner ' applied to 'a solicitor to 
 procure for him a loan of money on mortgage, the solicitor being employed 
 by another person to put out money on mortgage security ; in proof of his 
 title to freehold lands, he delivered to the solicitor a will, for the forgery of 
 which he was then to be tried ; the solicitor, upon this,' advanced the money 
 of his client, and prepared the mortgage deed ; the question was, whether 
 the solicitor could produce the willj and give in evidence what had passed 
 between him and the prisoner as to the advance of the money. And Pat- 
 teson, J., ruled in the affirmative. 
 
 There appears to be an obvious distinction between this case and that of 
 
 (1) Derby Sum. Asa. 1832. See, also, R. v. Diioh, 8 Burr. 1687. 
 
 (2) 8 C. & P. 596. 
 
 Vol. I. 16 
 
122 Of the Hule as to Professioncd Confidence [ch. vn. 
 
 The King agt. Smith. In The Queen agt. Avery, the prisoner deposited 
 the instrument in the hands of his solicitor, not with reference to a suit, nor 
 with reference to any transaction resting solely between themselves, but for 
 the purpose of a money transaction between himself and a third person, and 
 to be disclosed and communicated to that third person. In The King agt. 
 Smith, on the contrary, the instrument was deposited with the attorney for 
 the purpose of a suit, in which he consulted him professionally, as a matter 
 in confidence between him and his attorney, and solely for his own inter- 
 ests. The two cases, therefore, are not inconsistent, and the one does not 
 overrule the other. For these reasons, and from regard to the high author- 
 ity of the late Mr. Justice Holroyd, who was remarkable for the scrupulous 
 and singular care with which he decided every question that came before 
 him, and to this particular case gave more than ordinary time and atten- 
 tion, the case is still retained in the text. In a recent case,(l) Patteson, J., 
 said that, in The Queen agt. Avery, he was reported to have said something 
 too strong about The King agt. Smith, tvhich was certainly distinguishable 
 from The Queen agt. Avery. 
 
 In The Queen agt. Hay ward, (2) where a party, having possessed himself 
 of some title deeds of a deceased person, placed a forged will among them, 
 and sent them to his attorney, for the ostensible purpose of askmg his 
 advice upon them, but in reality, as it pretty clearly appeared, that the 
 attorney might find the will among the deeds, and act upon it, which he 
 did; and the client was tried' for the forgery of the will, and the attorney 
 produced it in evidence, although the prisoner's counsel objected to 
 *151 its *being read ; it was afterwards held by the fifteen judges that 
 the will was properly read in evidence, not having been put into the 
 hands of the attorney in professional confidence; and, according to 
 the report, it was added, even if that would have made any difference. 
 
 If this last remark is correctly reported, it would imply that the judges 
 thought the decision in The King agt. Smith (which had been quoted at 
 the trial) could not be sustained. Yet, from the circumstances of The 
 Queen agt. Hay ward, it would be difficult to say that the will was placed 
 in the hands of the attorney in professional confidence, any more than the 
 passing away a piece of bad money by a client to his attorney could be said 
 to be an act of professional confidence : while in The King agt. Smith, the 
 promissory note, for the forgery of which the prisoner was indicted, had 
 been placed by him in his attorney's hands for the purpose of bringing an 
 action upon it ; it was, therefore, imparted to him strictly in professional 
 confidence, and the possession of it by the attorney was to be considered as 
 the possesion of the client. * 
 
 In the «ase of The Queen agt. Farley, (3) the wife of A. went to an attorney, 
 who had never acted in any way professionally for her husband, and pro- 
 duced a forged will to the attorney, asking him to advance her husband 
 some money upon the property mentioned in the will ; she left the will with 
 the attorney, who took a copy of it, and afterwards returned the original 
 to the husband, declining to advance any money upon it. It was decided by 
 the fifteen judges, that upon the trial of A. for forging the will, the conver- 
 sation between the prisoner's wife and the attorney was not a privileged' 
 communication, and that the copy of the will was admissible as secondary 
 evidence, a foundation having been properly laid for the admission of such 
 evidence. 
 
 In this case, it will be remarked that the attorney had never acted in that 
 capacity for the prisoner — a circumstance to which several of the judges 
 adverted in the course of the argument — and the attorney was resorted to 
 
 (I) R. V. Tilney, 18 L. J. (N. S.) Mag. Ca. 38. 
 (3) 2 G. & K. 234. 
 (3) 3 C. & K. 313. 
 
SEC. I.] In the Case of Third Parties. 123 
 
 on this occasion not at all in that character, but simply as a money lender. 
 There was nothing of professional confidence, therefore, in the transaction, 
 which was in fact, a hare attempt to defraud the attorney by means of the 
 forged will. 
 
 In the recent case of The Queen agt. l^ey and others,(l)' tried before 
 Coltman, J., where several parties were indicted for forging a will, it 
 appeared that one of the prisoners, a female, had gone to an attoriiey, whom 
 she had on a previous occasion consulted professiolially, and that she 
 brought with her the will in questibn ; that he judged, from what she said, 
 that she came to consult hitn as to that document; and that it was for the 
 purpose of ienforcing it. The witness said — "She did not come to coBsult 
 me as to, what her rights were, but that I might ' enforce her rights 
 *152 under *it." All the cases above mentioned were cited at the trial ; 
 and the learned judge considered the efiect of the attorney's evidence 
 to be, that the document was committed to him by the prisoner, not to be 
 kept as a confidential deposit, but in -order that it might be exhibited in 
 court for the purpose of enforcing her rights, and thought it, under the 
 dircumstances, advisable to receive the document in evidence, with the view 
 of obtaining the opinion of the judges on the point. 
 
 The case was afterwards argued before eleven of the judges ; but no 
 decision was come to upon this point, as it appeared that there was no evi- 
 dence of an intention to defraud any one so as to support the indictment. 
 But in the course of the argument, t'arke, B., said: "Suppose it were given 
 for the purpose of being sh'ov^n to the tenant in possession, would it be 
 privileged'? And on the other hand, if title deeds are given to an attorney 
 to use for the benefit of the party giving them, can he be required to 
 produce them against him?" Wilde, C. J., added: "If title deeds are 
 mtriisted to an attorney, can it be doubted that he is not at liberty to pro- 
 duce them?" Lord Denman, C. J., then saiS: "But if a forged and false 
 instrument is given to an attorney, ought not he take it to a magistrate ?" 
 To which Wilde, C. J., answered : " I apprehend that the magistrate could 
 not receive the statement." 
 
 If the principle upon which the document was admitted in this case be 
 the correct one, it would certainly apply to. the facts in The King agt. 
 Smith, (2) as in that case the promissory note had been intrusted to the 
 attorney to enforce the prisoner's supposed rights under it. 
 
 In the still more recent case of The Queen agt. Haw]dn8,(3) where a 
 defendant was indicted for perjury committed in the county court in respect 
 of a paper which had been 'produced at the trial there, the defendant's 
 attorney was subpoenaed to produce the paper on the trial of the indictment ; 
 he stated that he had received it from his client (the then defendant) for 
 the purpose of conducting the cause in the county court as his attorney, and 
 he claimed a lien upon it ;(4) and Coltinan, J., ruled that he ought not to 
 produce it, as his possession of the paper was the possession of the defend- 
 ant ; and secondary evidence was given of its contents. 
 
 Where attorney acts for two parties. Where a deed or other paper is 
 intrusted to an attorney by two persons, the attorney must, as against 
 strangers, keep it according to the nature of his original employment, and 
 subject to the rights of both the persons by whom he is employed. There- 
 fore, when a vendor had a draft of a conveyance made by his own 
 *153 attorney, from which title deeds were' *aft'erwards prepared, and the 
 attorney was paid for his business by the vendor and purchaser in 
 
 (1) 18 L. J. (N. S.) Mag. Ca. 36. 
 
 (2) Ante, p. 149. 
 
 (3) 2 0. & K. 833. 
 
 (4) As to this, see Thompson v. Moseley, 5 C. & P. 501. 
 
124 Of the Hulejos to JProfessiondl Qonfidence [oh. vn. 
 
 moieties by agreement, but tbe latter emplpyed arf attorney on ibis own part 
 to look oyer the draft, and the draft; remained afterxs^ards witb the vendor's 
 attorney ; it was held thaj; such dra^ was confidentially deposited with th^ 
 vendor's attornfey by the purchaser as well as by the vendor, and, that it 
 could not be produced^at the trial against theintereists of the purchaser's 
 devipees, though with the consentipf, the; vendor and his attorney.(l) 'So; 
 an attorney who, beii;ig , resorted to by a, borrower to raipe money for him, 
 peruses, on the part of the proposed lender, the abstracts of the borrower, 
 is not allowed 1;.o give evidence concerning thepi H,g3.inst th^ borrower. (2)' 
 An attorney employed by cpnsen^, of tw-o parties ip, preparing, a deed-frow 
 one to the other, cannot , be;, examined as to what he so became informed of 
 in the, preparing of i^he deedj, when the. action is brought by ithe assignees 
 of one agamst the other, suggesting fraud in the deed. (3) •. < ■■, y 
 . ', But the privilege attaches to such commun.ipatipns ionly as are made by 
 each party ,tb , the attornpy in, the character of his own professional adviser.. 
 Thus, wlfpre the S9,me attorney was acting both -fpr the vendor and pur-' 
 chaser of an estate, a communication from the,lp,tt'er, asking for (tinie to pay-, 
 the purchase money, w;as .held not to be privileged,; as beipg made to him in, 
 his character of attorney for the; vendor. (4). , ,. ,; 
 
 So where A., having a claim against B., they both went together to the 
 office pf A.'s attorney, who had never aqted as the a,ttorney for B., and B. 
 made a statement relating to A.'s claim,, E^nd, it was arranged that ithe attor- 
 ney, stould, on behalf of B., write to a third party in respect pf the subject 
 matter of the plaim; it AV^as beld, in an action by A. against B., that the 
 statement of , the latter in the, presence of the attorney was not a privileged- 
 communication. (5) 
 
 Where attorney' is of one not' a party. The protection afforded- to pro- 
 fessional confidence applies not only to the professional advisers of 
 *154 the parties to a suit, but also to the prpfe'ssional *advisers of strangers 
 to the .Suit. (6) Though it is con,venient to collect the cases respecting 
 professioilal. cotifldehce in the' same chapter, the 'prote'6tion afforded tp such 
 disclosures, when made by strangers, is founded on principles which are 
 resei-ved for consideration m the chapter which treats of the examination of 
 witnesses. ' 
 
 Question^ of thik nature can seldom OciCiir in I'egard to verbal cbminuni- 
 cations, in consequence of the rule which exCltides hearsay evidence. But 
 they have not unfrequently arisen, wbere an attorney ,lias been called upon 
 to produce the title deeds of a stranger to tlie suit, which have been confi- 
 dentially deposited with him. 
 
 (1) Doe d.' Stroder v. Seatop, 2 A. & B. 171. 
 
 (3) Doe d. Peter v. Watkins, 3 N. C. 421. And see Taylor v. Blacklow,- Id. 235. 
 
 (3) EobSon V. Ketop, 4 Esp. 285; ' ' ■ 
 
 In Warde v. Warde, the Solicitor who acted for the husband and hls" wife in the prepar- 
 ation and execution of a deed of release of the wife's jointure, was required in equity to 
 produce the documents taken and used in the transaction ; the soliiator having acted for 
 them both. .5 Bng. Law & Bq.; 217. ; , So, in Hawkins v. Oathercole (3 Id. 109), the person 
 who acted as solicitor for fcoth thci borrower, and lender of money on ,the security of 
 certain property, was held in equity (a bill having been idled by the lender /lUegmg the 
 insufficiency of the property, and fraud and collusion between the soljcitorand the bor- 
 rower), (bound to produce the letters that paSBftd' between him and the borrower. 2 Id. 
 109. ,,,;.,, : , 
 
 (4) Perry v. Smith, 9 i/l.. & .W. 681. See, also, Braughe v. Cradopk, 1 Mo. & E. 183 ; 
 Cleeve v. Powell, Id. 2?8.; 
 
 (5) Shore v. Bedford,'5 M. & Q. 371. 
 
 (6) R. V. Withers, 2 Campb. 578. 
 
 A person holding a document prepared by him as solicitor for the person under whom 
 both plaintiffs and defendants claim, and for a third party, a mortgagee, is held not bound 
 to produce it ; it is otherwise where no third person isinterested m tjie preparation of the 
 document. Chant v.' Browne, 12 Bng, Law & Bq> 299. i 
 
SBC. I.] In the Case of Third Parties. 125 
 
 Where an attornejf is called upon to produce deedfe or papers belonging 
 to Ms client, who is riot a part j to the suit, the court will inspect the docii- 
 ments and pronounce upon their admissibility, according as their production 
 may appear to bie prejudicial or not to the client, in like manner as where a 
 witness objects to the production of his own title deeds.(l) And, notwith- 
 standing ' some conflicting opinions, the same rule appears to be held in 
 respect of the proceedings or documents in the cust6dy of solicitors for 
 assignees of bankrupts. (2) 
 
 It would seem that, in the case of a strangier to the suit, the iattpmey's 
 privilege is not more extensive than that of the client, which seems to be 
 confined to the non-production of documents of title. (3) 
 
 On a question of settlement^ it was held that a mortgagee, a rated inhabit- 
 ant of the appellant ^avish,- eitibpclmioied by the respondent piarish, was not 
 compellable to produce the title deeds of the mortgagors ; and that his 
 attorney was not at liberty to produce an abstract of the deeds, or to give 
 parol evidence of their contents. (4) In like manner it has been held that 
 the solicitor of one of the parties to a deed of composition is not compella- 
 ble to produce it in an action between strangers. (5) 
 *155 *But where by an order of the Court of Chancery, made in a suit 
 depending between a lessor and lessee, a lease was deposited in the 
 hands of the lessor's -attorney, and the lessee was at liberty to inspect 
 the same, it was held, in an action of ejectment brought by the lessee 
 against the tenant in possession, that the attorney of the lessor was bound 
 to produce the lease, as it wa* not part of the lessor's title. (6) 
 
 In an action 'of ejectment by the reversioner against the lessee of the 
 tenant for life, (7) notice to produce certain deeds had been ^iven b;^ 
 the defendant to the lessor of the plaintiff; these Were not produced at the 
 trial, but an abstract of them, which had been compared with the deeds, 
 was in court, in the hands of a- solicitor for a third party, who had been in 
 negotiation with the lessor of the pla;intiff for an Exchange of the ptoperty; 
 it was proposed^ on the part of the defendant, to produce this' abstract as 
 secondary evidence of' the contents of the deed ; the solicitor stated that he 
 had not received permission from his client to* produce it, but he was ready- 
 to do so if the judge thought he was at liberty to do it. The judge ruled 
 that the abstract might be received in evidence, although the counsel for the 
 lessor of the plaintiff objected to its production ; and the Court of Queen's 
 Bench upheld this ruling., -Lord Deninan, G. J., observed in this case: "I 
 think this pjivilege is o? a strict nature, and, not to be encouraged. , Why 
 am I to be deprived of the benefit of* a fact which a witness knows, because 
 he may iancy that his client may be a loser by its disclosure ?''. 
 
 The attorney of a, stranger to $he cause cannot l^e, compelled to produce 
 a case witb :the opinjon of counsel, wh^ch he holds confidentially for his 
 client.(8) 
 
 (1) Copeland v. Watts, 1 Stark. R. 95 ; Hawkins y. Howard, Ry. & M. 64. 
 
 An attorney called upon to produce a document at' a trial, iiiay refuse, alleging that it 
 was intrusted to him by his client ; and he is not bound to'state the nature? of the docu- 
 ment, nor to produce it ; and it seems that the court ought not to examine the paper for 
 the purpose of determining whether or not it ought to be 'vrithheld. Volant v. Soyer, 16 
 Eng. Law & Eq. 426. 
 
 (2) See Laing v. Bar6lay, & Str.'38 ; Bateson v. Hartsink, 4 Esp. 43 ; Corsen v. Duboitsj 
 Holt, 239 ; Cohen v. Templar, 2 Stark. R. 360 ; Nixon v. Mayoh, 1 Mo. & H. 76 ; Hawkins 
 V. Howard, Ry. & M. 64. In- Pearson v. Fletcher (S Esp. 9j; Lord Ellenborough, C. J., con- 
 sidered the production of bankruptcy proceedings a matter of public d-utyi 
 
 (3) See Doe d. Courtail ■y,'Thomas,l9 B. & C. 288. See -also,' Ditcher v. Kenrick, 1 C. & 
 P. 161. It does not appear whether the deed in that case was a document of title. 
 
 (4) R. V. Upper Boddington, 8 D. & R. 726. 
 
 (5) Harris v. HUl, 3 Str. 140. 
 
 (6) Doe d. Courtail v. Thomas, 9 B. & C. 288. 
 
 (7) Doe d. Egremont (Lord)'v. Langdon, IS L. J.' (N. S.) Q. R 17. 
 
 (8) R. v; Woodley, 1 Mo.'& R. 390. 
 
126 JExamination of Attorney [ch. vn. 
 
 In an action against tjie sheriff for ^n escape, it has been, held that the 
 attorney for the original defendant could not be called to prove the debt, 
 where he became acquainted with the business only from the information 
 of his client. (1) . So in an action by the assignees of a bankrupt, commu- 
 nications made by him to his attorney cannot be given in evidence for the 
 purpose of showing his motives, (2) unless, with the consent of the bank- 
 rupt, in which case the defendant cannot object to the disclosure. (3) 
 
 An action for breach of promise of marriage had been brought by A, 
 against B. The cause was referred under an agreement in two parts, one 
 of which signed by A.'s attorney but unstamped, was in the possession of 
 B.'s attorney ; the other part signed by B.'s attorney and stamped, was in 
 the possession of A.'s attorney; the expense of the sita,mping having 
 *156 been *borne by B. B. brought an action against his attorney for 
 negligence in conducting the reference. It was ruled (4) that the then 
 plaintiff (B.) was entitled to the prQd,Tiction of the stamped part of the 
 agreement by A.'s attorney, although he was, directed by A. not to produce 
 it. (5) It was also ruled that A.'s- attorney was not bound to produce letters 
 written by the tben defendant as attorney for B. to the witness as attorney 
 for A. ; but that if, after notice to produce, t^e letters, written by the wit- 
 ness as attorney for A. to the then defendant ag attorney for B., were not 
 produced, the witness was bound to giye secondary evidence of their con- 
 tents, althoiighj desired by the defendant A. not to do so. . 
 
 It has been held that the counsel, in a cause have a right , to argue the 
 admissibility of this kind of evidence which relates to the rights of persons 
 not being parties to the cause: (6) but it has been said in argument(7) that 
 this, right is limited to cases, where the attorney objects to produce the 
 document, and does not extend to cases where tljie attorney makes no 
 objection. (8) 
 
 There are conflicting cases upon the question whether the improper admis- 
 sion or rejection of this kind of evidence is a sufficient ground for a new 
 trial In Marston v. Downes,(9) the Court of King'S; Bench decided that, 
 even supposing the judge acted erroneously m admitting such evidence, the 
 parties to the action ha,d no right to insist upon the objection, and a rule 
 for a new trial was refused. But in the later case of Doe d. Peter v. Wat- 
 kins,(10) the Court of Cqmnion, Pleas, granted a new trial, on the ground that 
 such evidence had been improperly received. , ; 
 
 Where attorney is examined as to collateral fa^ts not in confidence. The 
 attorney of a party in the cause may be examined, like any other witness, 
 as to any collateral fact, with which he has become acquainted otherwise 
 than from a disclosure or confessioh by his client. (11) Thus, if he is the 
 subscribing witness to a deed, he may b* examined concerning its execu.- 
 tion.(12) If there be a question about an erasure in a deed or will, he 
 
 (1) Sloman v. Home, 2 Esp, 696. 
 
 (2) Bowman v. Norton, 50. & P. 177. , „ 
 
 (3) Merle v. More, By. & M. 390 ; S., C, 2 C. & P. 375. 
 (4i Hlggs V. Taylor, 1 C. & Kir. 85. 
 
 (6) This was upon the ground that that part of the. agreement tfippeared to have l>een 
 stamped for the mutual benefit of A. and B., upon the same principle that the court will 
 compel the production of documents for inspection in which other parties are interested. 
 Vide post, Vol, II. 
 
 (6) R. V. Woodley, I Mo. & R. 390. See, also, Mills v. Oddy, 6 C. & P. 733; Higgs v. 
 Taylor, 1 C. & K. 85. 
 
 (7) In Doe d. Bgremont (Lord) v. Langdon, 18 L. J. (N. S.) Q; B. 19. 
 
 (8) But see Doe d. Peter v. Watkins, BN. Q. 421. 
 
 (9) 1 A. & E. 31, A. D. 1834. 
 
 (10) 3 N. C. 421, A. D. 1837. 
 
 (11) See Sawyer v. Brickmore, 3 M. & K. 573. ■ 
 
 (13) Doe d. Jupp V. Andrews, Cowp. 846 j Bobson v. Kemp, 4 Esp. 335. 
 
 NoTB 70. — Devoy's Lessee v. Burke, 3 Fox & Smith, 191, 199, 8. P. This case holds 
 
SEC. I.] As to Collateral Facts. 127 
 
 may be asked whether he had ever seen the instrument in any other 
 *157 *state.(l) But this doctrine must be limited to a case where the 
 attorney has his knowledge independently of any communication 
 from the client ; it does not mean that where the attorney, coming to the 
 client for a confidential purpose, obtains some other collateral information 
 which he would not otherwise have possessed, he can be compelled to dis- 
 close it. (2) If an attorney were present when his client was sworn to an 
 answer in chancery, he might be a witness, on an indictment for perjury, to 
 prove the fact of taking the oath, which is not a fact peculiarly within his 
 knowledge as an attorney, and not communicated to him in secrecy. (3) In 
 one case, an attorney was admitted by Lord Kenyon, C. J., in an action of 
 debt upon a bond, to prove that the bond had been given on an usurious 
 consideration. (4) This appears to have been done upon the assumption that 
 the attorney had made himself a party to the transaction ; but it is doubt- 
 ful whether the facts of the case would sustain that assumption, and 
 whether the decision would be now acted upon. (5) 
 
 An attorney, conducting a cause in court, may be called as a witness by 
 the opposite side, and asked as to his employer, in order to show the real 
 party, and let in his declarations. (6) He may be called to prove the ident- 
 ity of the defendants to a suit, though, except from his intercourse with 
 them professionally, he knows nothing of them.C?) He may prove his 
 client's handwriting, (8) and may be required to state whether he is himself 
 in possession of a particular document, so as to let in secondary evidence 
 of its contents, after a notice to produce, although he obtained the posses- 
 sion from the client. (9.) 
 *158 *A bill in equity, filed by the insurers of a life against the insured, to 
 which the solicitor of the insured was a party as a defendant, stated 
 that on a particular day, an agent of a company with whom the insured 
 wished to efiect an insurance, came to the office of the insured, and told 
 their agent that the life was bad, handing to him at the same time an 
 unfavorable medical report upon the life. The solicitor of the insured was 
 present at this interview, but in his answer to the bill he refused to state 
 what passed, because he was then " the solicitor and attorney and the pro- 
 fessional adviser " of the iasured, and was present at the said interview as 
 such solicitor, &c., " and acquired his information touching the matters " 
 
 that he Ib bound to testify, having witnessed the deed, although he obtained his knowl- 
 edge as attorney. i j 
 
 (1) B. N. P. 384; Cuts v. Pickering, 1 Ventr. 197. 
 
 (2) By Lord Abinger, C. B., in Wheatley v. Williams, 1 M. & W. 451. 
 
 (3) B. N. P. 284 ; by Lord Mansfield, C. J., in Cowp. 846. 
 
 (4) Duffin V. Smith, Peake, 108. 
 
 (5) See the remarks of Lord Brougham, C, in 1 M. & K. 109. 
 
 (6) Levy v. Pope, M. & M. 416. 
 
 Note 71. — An attorney was compelled to testify as to the person who retained him in 
 the cause, in order to let in the confession o.f the real party as evidence. Levy v. Pope, 1 
 Mood. & Malk. 410. But see Chirac v. Reinicker, 11 Wheat. 280, cited supra. 
 
 (7) Studdy v. Sanders, 3 D. & R. 347. For other examples, see Beckwith v. Benner, 6 C. 
 & P. 681 ; Hurd v. Moring, 1 C. & P. 372 ; Eicke v. Nokes, M. & M. 303 ; B. v. Watkinson, 
 2 Str. 1122, with the gicere of the reporter. 
 
 (8) 2 Hawk. c. 46, § 89. 
 
 Note 72. — Johnson v. Daveme, 19 John. R. 134. The attorney may prove his client's 
 handwriting, having acquired knowledge of it without any confidential communication in 
 respect to it ; even though this be by seeing his client put his name to a bail bond in the 
 very cause. Hurd v. Moring, 1 Carr. & Payne, 545. 
 
 (9) B evan v. Waters, M. & M. 235 ; Coates v. Birch, 2 Q. B. 252. 
 
 Note 73. — So an attorney is compellable to testify that a deed delivered to him as attor- 
 ney is in existence and in his possession, in order to let in secondary evidence of its 
 contents under a notice to produce it. Brandt ex dem. Van Cortlandt v. Klein, 17 John. 
 Rep. 335. (He may be called upon to state whether a document so received by him is in 
 court, or in his possession. Dwyer v. Collins, 12 Eng. LawA Eq. 532, note 537; Coveney 
 V. Tanahill, 1 Hall B. 33, reviewing the authorities on the subject at length.) 
 
128 What Commvnications FriiiiUged [ch. vii. 
 
 whicli lie refused to answer, '« solely from the fact of his being present at 
 the time in his capacity of such solicitor and attorney and professional and 
 confidential adviser;" it was held that this answer was insufficient. (1) 
 Lord Cottenham, C, after some ver^ limportant ohservations upon the 
 general priaciples on. which communications are entitled to be considered as 
 privileged, and having stated that the privilege only_ applies to cases in 
 which the client makes a communication to ms solicitor with a view of 
 his legal advice^ remarked: «*Such being the rule, the only question is, 
 whether the defendant (the solicitor) ' in the present case has used^ such 
 words in his. answer as clearly; and distinctly to bring himself within it." 
 And then, after stating the facts as set forth in the, defendant's answer, his 
 Lordship, continued: "It may.be that the defendant was present acci- 
 dentally, and so heard what passed: but at all events, those who claim the 
 privilege are bound to bring .their case within it. I cannot say till I have 
 learned how the defendant came to be present, who sent for him, and so 
 forth, whether the communication was privilegfed."(2) 
 
 iSo, where a, motion ih the . Ecclesiastical Court for the production of 
 certain ,papers,' referred to by a witness in his deposition ^the witness being 
 the solicitor of the party in the cause opposing a codicil), was resisted 
 on the ground, of privilege, it was held that information collected by the 
 solicitor from a stibscribing witness ,to the codicil, was not privileged ; 
 though it would have been otherwise if such information had been com- 
 municated by the client to the solicitor; and it was also held, that letters 
 written by the testator to the samp solicitor, with regard to a bond executed 
 by the former in favor of the party propounding the codicil, were not 
 privileged communications as between that solicitor and his client, the 
 party opposing the codicil. (3) 
 
 The privilege, .however, extends to all-knowledge obtained by the 
 *159 *attorney, which he would not have obtained if he had not been con- 
 sulted professionally by his client. And it has accordingly been 
 held that an attorney is not compellable to state whether he has seen a 
 document in the possession of his client; (4) or whether a document, shown 
 to him by his client, in the course of a professional interview, was in the 
 same state as when produced on the, trial ; , as, for example, whether it was 
 Stamped or not. (S) . 
 
 It is obvious that communications by an attorney to the opposite party 
 or to, strangers, and communications between a plaintiff and defendant in 
 the presence of an attorney, do not fall within the principle or terms of the 
 rule which protects private communications between parties and their pro- 
 fessional advisers.'(6) So, communications from the opposite party to the 
 attorney, or to the client, in his presence, are not within the rule.('7) Thus, 
 the attorney of one of the parties may be examined as to the contents of a 
 
 (1) pesborouffh V. EawlinB, 3 Mylne & Cr. 515. 
 
 (3) 3 Mylne & Cr. 525. See, alBO/ Pritchard v. Foulkes, 1 C. P. Coop. 14; Greenlaw v 
 King, 1 Beav. 137. 
 
 (3) Mackenzie y. Yeo, 3 Curt. Bco. B. 866. 
 
 The communication must come to the attorney or Bolicitor directly from Ma client, or it 
 will be not privileged. Crosby v. Berger, 4 Edw. Ch. 254. 
 
 (4) Bingham v. Stanley, 9 ,C. & P. B84i Sw, also, Mqore v. Terrell, 4 B. & A. 878. 
 
 (5) Wheatley v. Williams, 1 M. & W. 533. 
 
 (6) By Parke, J., and Patterson, J., in Griffith v.^Davis, 6 B. & A. 503, questioning the 
 authority of Gainsford v. Grammar, 2 Campb. 9. See, also, Blpon v. Davis, 2 N. & M. 
 210 ; Turner v. Railton, 2 Esp. 274. 
 
 Note 74. -h Spencer, J., held, that terms of compromise, offered by an attorney to his 
 client's creditors, were not to be considered confidential, as he had already published 
 them. M'Tavish v. Denning, Anthon's N. P. Cas. 118 ; Post, note 152, S. C. And see 
 Yordan v. Hess, 13 John. Rep. 493. (Nor are communications that pass between the 
 attorneys of opposite parties privileged. Gore v. Harris, 8 Eng. Law & Eq. 147.) 
 
 (7) See Desboraugh v. Bawlins, ut mpra. 
 
SEC. I.} As made in Professional Confidmce. 129 
 
 wntten notice, -which had been received by him from the adverse attorney, 
 requiring him to produce papers."(l) 
 
 The rule is also inapplicable to admissions or proposals of compromise 
 made by counsel or attorneys ; these will be considered afterwards, in that 
 part of the work which treats of admissions by agents. 
 
 Communications made by a client to. his attorney, not for the purpose of 
 asking his legal advice, but to obtain information concerning' a matter 
 of fact, are not. privileged. "A question for legal advice," said Tenterden, 
 C. J., in Bramwell v. Lucas,(2) "may come within the description of 
 *160 a *confidential communication, because it is part of the attorney's 
 duty, as attorney, to give legal advice ; but a question for informa- 
 tion as to matter of fact, regarding a communication which the attorney 
 has made to others, where the , communication might have been made by 
 any other person as well as an attorney, and when the character and office of 
 attorney has not been called into, action, has never beep held within the pro- 
 tection, and is not within the principle uponwhich.the privilege is founded." 
 
 The rule here laid down by the Court of Queen's Bench has never been 
 questioned; but its application to the particular, facts of that case has been 
 much doubted both by Lord Brougham, C.,(3) and Lord Cottenham, C.(4) 
 " Undoubtedly," observed the latter, " looking at the facts of that case, it 
 is not very easy to come to the conclusion to which the court there came in 
 point of fact. The question was, whether the client had committed an act 
 of bankruptcy on a particular day. On that day, the client inquired of his 
 solicitor whether he could safely attend a meeting of his crieditors without 
 being arrested for debt. The solicitor advised him to stay in his office ; 
 and he accordingly did stay th^re for upwards of two hours to avoid being 
 arrested. The question was, whether what passed between the solicitor and 
 his client was receivable in evidence. That looks undoubtedly very like a 
 professional communication for the purpose of obtainiag advice ; and the 
 court said, if it was a professional communication it was privileged. If, 
 therefore, the client asked the solicitor his advice in point of law, whether 
 he could with safety attend the meeting of his creditors, the communication 
 would be privileged ; but the court said that, in its nature, it could not be 
 privileged, but tjiat it was merely an inquiry of fact, whether the client's 
 creditors, because they had clearly all their legal rights, would arrest him ; 
 and that the only question was, whether they had agreed not to do so ; and 
 the court held the question was one of fact and not of law," (5) 
 
 (1) Spenceley v. Schvilenburgh, 7 East, 357. 
 
 (3) 3 B. & C. 744. 
 
 Communicationa to an attorney or legal adviser, are held privileged ,for the protection 
 of the client, wiho may ■w;aive the privilege ; and in the case of a stranger to the suit, it is 
 laid down in the text that the attorney's privilege is not more extensive than that of his 
 client. Doe d. Courtail v.Thomas, 9 B. & C. 388. Under recent statutes, making parties 
 to the suit competent and compellable to testify in the same manner as other witnesses, 
 qTiere, whether many communications between client and attorney, fonnerly considered 
 privileged, can be any -longer so regarded? If the party himself may be called upon to 
 answer a question or produce a document, there would seem to be no good reason why 
 his attorney should be held.privileged from answering it, or producing it. In such a case, 
 the legal adviser cannot be said to have betrayed the professional confidence reposed in 
 him, because the sat^ect matter of the communication might have been inquired into by 
 calling and examining tlie party himself. In effect, the law rendering a party compellable 
 to testify, declares, that in civil cases, the parties shall have no secrets pertinent to the 
 issue on trial that may not be inquired into. Perhaps, however, it is as well to permit 
 the privilege to cover confidential communications between client and attorney, leaving the 
 opposite party at liberty to call and examine his adversary. Our notion of good faith, 
 and the very idea of professional confidence, requires that it be kept inviolate, while the 
 right to examine an opponent on oath, gives a &ir opportunity to search out the whole 
 truth. ' 
 
 (3) In Greenough V. Gaflkell, 1 Mylne & K. 98. 
 
 (4) In Desborough v. Bawlins, 3 Mylne & Cr. 515. 
 
 (5) 3 Mylne & Cr. 515. 
 
 Vol. L 17 
 
130 ^f t^^ Meclusion of JEkidence [ch. vn. 
 
 SECTION" n. 
 
 Of the Meclusion of Evidence, where the Disclosure would he I^ejudicial 
 
 to Public Interests. 
 
 The discovery of truth in iaquiries necessary for the aidministration of 
 criminal justice, as also where the rights of private individuals are 
 *161 *concerned, is an object, ■vvhich, however desirable in itself, may 
 nevertheless be counterbalanced by serious inconveniences from dis- 
 closures prejudicial to public interests. And the danger of such disclosures 
 has been deemed, in particular instances, an adequate ground for the exclu- 
 sion of evidence. (1) 
 
 Information given to government. Witnesses are not to be examined 
 respecting information given by them to government for the discovery of 
 offenders, against the law. The names of persons who are the channels by 
 which detection is made, are not to be disclosed. This is not the privilege 
 of the witness, but may be justly called a public privilege, on account of 
 its importance to the public ; it is observed by courts of justice on a prin- 
 ciple of public policy, and from regard to public interests. 
 
 On the trial of Hardy for high treason, a man who had been employed by 
 an oflScer of the executive government to collect information at a meeting 
 of one of the corresponding societies, was not allowed to disclose the name 
 of his employer, or the nature of the connection that had subsisted between 
 himself and the officer. (2) 
 
 Another witness, in the course of the same trial, had made reports from 
 time to time of the proceedings of some corresponding societies, and had 
 made these reports by the advice of a third person, and under the impres- 
 sion that the information contained in the reports would be transmitted to 
 another quarter -for the purpose of disclosure ; the witness was asked 
 whether he had communicated his reports to a magistrate of any descrip- 
 tion; Eyre, C. J., considered this a proper question. (3) The witness, on 
 answering in the negative, was asked to whom he had made a communica- 
 tion. This question was objected to ; Eyre, C. J., upon this said : " It is 
 perfectly right, that all opportunities should be given to discuss the truth 
 of the evidence given against a prisoner ; but there is a rule which has 
 universally obtained on account of its importance to the public for the detec- 
 tion of crimes, that thosp persons who are the channel by means of which 
 that detection is made, should not be unnecessarily disclosed. If it 
 *162 *can be made appear, that it is necessary to the investigation of the 
 truth of the case, that the name of the person should be disclosed, I 
 should be very unwilling to stop it : but it does not appear to me that it is 
 vpithin the ordinary course to do it, or that there is any necessity for it in 
 this particular case." 
 
 The cross-examination of the same witness then proceeded, and he admit- 
 
 (1) Note 75. — On trial of an indictment for counterfeiting, and having possession of 
 counterfeit bank notes, &c., a question, on cross-examination, was put to a witness for the 
 prosecution, whether one Johnson, at whose house the prisoner was apprehended, had 
 told the witness tha^, if he would come to his house on a certain day (being the day on 
 which the prisoner was arrested), he would have the prisoner there. Washington, J., 
 would not allow the question to be answered. He took tli6 ground that such a disclosure 
 could be of no importance to the defense, and might be highly prejudicial to the public in 
 the administration of justice, by deterring persons from making similar disclosures of 
 crimes which they knew had been committed. United States v. Moses, 4 Wash. C. C. 
 Rep. 736. 
 
 (3) 24 How. St. Tr. 753, on cross-examination of (Jroves. The same principle was acted 
 upon in the prosecution of Homo Tooke for high treason ; in the prosecution of Walker 
 and others for a conspiracy ; and in the prosecution of Watson for high treason. Gurney's 
 Report, 159. See, also, 32 How. St. Tr. 100. 
 
 (3) 24 How. St. Tr. 808 ; on the cross-examination of Lynam. 
 
SBC. ii.J Mom Regard to JPublic Interests. 131 
 
 ted that he had related what he knew to a friend, who advised him to 
 communicate his reports of the proceedings to another person. He was 
 then asked whether that friend was a magistrate ; this he answered in the 
 negative ; then came the question, who was the friend? This was objected 
 to;(l) the objection was, that the person by whose advice the information 
 was given to a person standing in the situation of a magistrate, was, to all 
 intents and purposes, the informer, and that his name, therefore, could not 
 be disclosed. (2) The judges differed in opinion upon this point ; Macdon- 
 ald, C. B., and Buller. J., were of opinion that the question was proper ; 
 but the majority of the court, consisting of Eyre, C. J.,, Hotham, B., and 
 Grose, J., were of the opposite opinion. Eyre, 0. J., said: "Those ques- 
 tions, which tend to the discovery of the channels by whom the disclosure 
 was made to the officers of justice,. are not permitted to be asked. Such 
 matters cannot be disclosed, upon the general principle of the convenience 
 of public justice. All persons in that situation are protected from dis- 
 covery. It is no more competent to ask who the person was that advised 
 the witness to make the disclosure, than it is to ask to whom he made the 
 disclosure in consequence of that advice, or than it is to ask any other ques- 
 tion respecting the channel of information, or what was done under it." 
 Grose, J., considered the adviser of the witness to be substantially in thp 
 situation of an informer, and that his name, therefore, ought not to be 
 revealed. Hotham, B., also considered the person to be an informer ; the 
 witness, he said, had made the communication to hi* friend, under an 
 impression and full persuasion that through him the intelligence might be 
 conveyed to a magistrate; and there was no distinction, he added, between 
 making a disclosure to the magistrate himself, or making it to another per- 
 son who was to communicate it to the magistrate. The judges who were 
 of opinion that the question might properly be asked, admitted the . general 
 rule, and differed only in the application of that rule to the particular facts 
 of the case. Macdonald, C. B., said : " If he were satisfied that the friend 
 to whom the witness disclosed this matter, was in any way a link in the 
 communication, he should certainly agree that the rule applied to him ; but 
 this person not being connected either "with the magistracy or the executive 
 
 government, the case did not appear to him to fall within the rule." 
 *163 Buller, J., *admitted the rule with respect to the, informer to the 
 
 utmost extent : " If the name of the informer," he said, " were to be 
 disclosed, no man would make a discovery, and public justice would , be 
 defeated." He admitted, also, that if a middle man is made the channel of 
 communication, he ought to receive the same protection as the first person 
 to whom it was mentioned. But he differed in opinion only as to the situa- 
 tion of the friend respecting which this question arose ; in his view of the 
 evidence, he considered that the witness had communicated the information 
 to another man, not for the purpose of prevailing on him to make the dis- 
 closure to a magistrate, but merely to consult him for the purpose of 
 making up his own mind whether he should himself make the discovery ; 
 he was, therefore, of opinion that the witness ought to be allowed to answer 
 the question. 
 
 JResult of cases. Hence, it appears that a witness who has been employed 
 to collect information for the use of government, or for the purposes of the 
 police, will not be permitted to disclose the name of his employer, or 
 the nature of the connection between that employer and himself, or the 
 name of any person to whom he may have conveyed the inforination for 
 the purpose of being transmitted. And, as it would not be proper to 
 inquire to what officer of government the information had been given, so 
 
 (1) 24 How. St. Tr. 711, 
 
 (2) 84 How. St. Tr. 814. 
 
132 • Of the, Mcclusion of Evidence [ch. tii. 
 
 neither can it be asked whether the information has been made by that 
 officer to the government; (1) 
 
 The same rule applies to cases of information in the Exchequer for 
 breaches 'of the revenue laws : thtis, in such a case, a witness of the crown 
 cannot be asked, in crOss-examination, whether he was himself the informer. 
 (2) But the rule does not seem to apply in cases where the witness is 
 obviously put forward as the informer. (3) 
 
 It may be questionable also, whether it is applicable in cases of Ordinary 
 prosecutions, in which the government is not directly concerned. (4) In 
 The King agt. Blaekman,(5) on an information under the 17 Geo. II, c. 40, 
 § 10, for possessing naval stores, a witness was asked on the voir dire if any 
 officer or other person had given information to the admiralty respecting 
 the stores in question. Upon this case being cited in argument, (6) as an 
 authority that such questions might be pnt. Pollock, C. B., remarked, it 
 did not appear that that was a prosecution by a government officer. (7) 
 *164 It *does not appear either that the question was objected to, which 
 perhaps was the real reason why it was allowed to be asked. (8) 
 
 Upon the trial of "Watson for high treason, a clerk of the works in the 
 ordnance department, who had resided many years in the Tower of London, 
 was called, on the part of the prosecution, to prove that a plan produced was 
 part of the interior of the tower. He was afterwards asked, upon cross- 
 examination, whether another printed plan, which was shown to him, was a 
 correct plan of the tower ; this was asked, with a view of proving after- 
 wards, that such maps might be purchased without difficulty in the shops 
 of L'ondon. But the court held, that the evidence could not be received, on 
 the ground that it would be attended with public mischief, to allow an 
 officer of the tower to be examined as to the accuracy of such a plan. (9) 
 
 Official communications. On a like principle of public ,policy, official 
 communications between the govern-or and law officer of a colony respecting 
 the state of the colony ;(10) orders given by the governor of a colony to a 
 military officer ;(11) a correspondence between an agent of government and 
 a secretary of state ; (1 2) or between the Court of Directors of the East India 
 Company and the Commissioners of the Board of Control (pursuant to the 
 .statute 3 & 4 Wm. lY., c. 85) ;(13) the report of a military court of inquii-y 
 respecting an officer whose conduct the court had been appointed to 
 examine ;(14) the offlciai correspondence between the commissioners and an 
 officer of the customs ;(15) a letter from a secretary of state to a person 
 acting under his authority; (16) all these are confidential and privileged com- 
 munications, which courts of justice will not allow to be disclosed. 
 
 (I) See further upon this point, Home v. Bentinck, 2 B. & B. 130 ; R. v. Akers, 6 
 Esp. 135. 
 
 (%) Att. Gen. v. Briant, 16 M. & W. 169. 
 
 (3) R. V. Caudey, 15 M. & W. 175. See, also, Watson's Case, 33 How. St.. Tr. 98. • 
 
 (4) By Pollock, C. B., 15 M. & W. 181. 
 
 (5) 1 Bsp. 95. 
 
 (6) In Att. Gen. v. Briant, ut supra, 
 h) 15 M. & W. 180. 
 
 (8) See 15 M. & W. 175. 
 
 (9) R. v. Watson, 3 Stark. R. 148. 
 
 (10) Wyatt V. Gore, Holt's N. P. C. 399. 
 
 (II) Cooke V. Maxwell, 2 Stark. R. 183. 
 
 (13) Anderson v. Sir W. Hamilton, 2 B.^ & B. 156, n. 
 
 ' Note 76.— A former secretary of state Is not bound to disclose confidential communica- 
 tions made to him in the line of his office (Marhury v. Madison, 1 Cranch, 144 ; nor senib. 
 the president of the United States, to disclose communications made to him officially. 1 
 Burr's Tr. by Robertson, 186, 187- 
 (tS) Smith V. East India Co., 1 Phil. R. 50. 
 
 (14) Home v. Bentinck, 2 B. & B. 130 ; Lee q. t. v. Birrel, 3 Camp. 355. 
 
 (15) Black V. Holmes, Fox & Smith's Rep. 28, K. B. in Ireland. 
 
 (16) Case cited 3 Stark. R. 185. As to minutes taken before the Privy CouncU, see 
 Layer's Case, 6 T. R. 281. 
 
SBC. II. J From Regard to Public Interests. 133 
 
 *165 *But although the orders given by the governor of a colony to a 
 military officer cannot, as we have seen, themselves he produced; 
 yet the witness may be asked in general terms, whether he did not do a 
 certain act under the direction of the governor. (1) And communications, 
 though made to official persons, are not privileged, if they had not been 
 made in the discharge of any public duty. Thus, a letter written by a 
 private individual to the secretary of the postmaster-general, complaining 
 of the conduct of the guard of a mail, h,as been held not to b6 within the 
 principle of the rule justifying the exclusion of the evidence. (2) 
 
 Proceedings in Parlid'hne'M. In the case of Plunkett v. Cobbett, (3) 
 which was an action against the defendant for publishing a libel reflecting 
 on the conduct of the plaintiff as a member of the Commons' House of 
 Parliament in Ireland, the counsel for the defendant in cross-examination, 
 inquired of the speakfer of the House of Commons, who was called as a 
 witness, as to the expressions and arguments which the plaintiff had used in 
 Parliament on a particular subject, when Lord Ellenborough, C. J., inter- 
 posed and stopped the examination, observing that it would be a breach of 
 duty in the witness, as a member of the Irish Parliament, and a breach 
 of his oath, to reveal the councils of the nation. But his Lordship said, 
 that as to the fact of the plaintiff having spoken in the debate, the witness 
 was bound to answer ; as that was a fact containing no improper disclosure 
 of any matter then under discussion in Parliament. (5) 
 
 In Court. Upon the same principle of public policy, as it seems, a judge 
 cannot be compelled to state what occurred before him in court. Thus, the 
 chairman of quarter sessions cannot be called ' upon, on an indictment for 
 perjury alleged to have been committed in a trial at the sessions, to give 
 
 evidence as to what the defendant swore at, that trial. (3) 
 *166 *Nor can an arbitrator be compelled to disclose what took place upon 
 the reference before him. (6) But as this is rather to be considered 
 as the privilege of the arbitrator, he may waive it and be examined with 
 his own consent. (7) 
 
 It has been held, that a senator ■will be admitted to disclose facts which transpired in a 
 secret session, after Ijaving applied to have the injunction of secrecy removed without 
 avail. Law v. Scott, 5 Harr. & John. 438. But where papers were filed with a governor, 
 containing charges alleged to be libelous, the court refused a subpoena ducm tecwm to 
 compel him to produce them. Gray v. Pentland, 2 Serg. & Eawle, 28 ; approved in Touter 
 V. Sanno, 6 Wa,tts, 166. The same principle has .been repeatedly recognized and acted 
 upon in this state, on the ground that such communications are privileged, and cannot be 
 made the foundation of an action for libel. Thorn v. Blanchard, 5 John, 508 ; Vapderzee 
 V. McGregor, 12 Wend. 545 ; Howard v. Thompson, 21 Wend. 319. 
 
 (1) Cooke v. Maxwell, 2 Stark. R. 186. 
 
 (2) Blake v. Pilfield, 1 Mo. & R. 198. 
 
 Such communications are privileged, in regard to the writer ; so that he is not liable to 
 an action for libel in making them. But the party to whom they are made has no privi- 
 lege to conceal them, where the ends of justice require a disclosure. Howard v. Thompson", 
 supra; Thorn v. Blanchard, 5 John. 508. 
 
 (3) 29 How. St. Tr. 71, 72 ; S. C, 5 Esp. 136. 
 
 (4) 5 Esp. 137. 
 
 (5) B. V. Gazard, 8 C. & P. 595. 
 Jud_ 
 
 them. Huff v. Bennett, 4 Sand. 120. Though it is well settled that they cannot be called 
 in question collaterally for the manner in which they have conducted the trial. The 
 forms of a suit or trial cannot be employed to slander or defame. Gillett v. The People, 1 
 Denio, 41. And where this is attempted, there is no reason why the justice or jury should 
 not be called as witnesses to prove what did take place. 
 
 (6) Habershaw v. Troby, 3 Esp. 38 ; S. C, Peake Ad. Ca. 181 ; Johnson v. Durant, 4 C. 
 & P. 327 ; Ellis v. Saltan, lb. n. 
 
 (7) Martin v. Thornton, 4 Esp. 181. 
 
 The general rule is that an arbitrator cannot be admitted as a witness to impeach the 
 award ; he cannot be sworn to prove a mistake in making it up. Newland v. Douglass, 
 2 Johns. 62. Having signed it, he cannot be permitted to say that he did not concur in it 
 
 (4) 5 Esp. 137. 
 
 ^5) B. V. Gazarc, 
 
 udges are frequently called and examined as witnesses in relation to proceedings before 
 
134 ■ Of the Exclusion of Moidence [ch. vrr. 
 
 On the same ground it has been ruled that a counsel cannot he com- 
 pelled to relate what was stated hy him in making a motion before the 
 court. (1) 
 
 "Where a party has conducted a cause as an advocate, such as an attorney 
 
 Campbell v. Western, 3 Paige, 124. But where an Timpire is called in, one of the arbitra- 
 tors (whose functions thereupon cease), who did not concur in the award, may be received 
 as a witness to show that the umpire exceeded his authority. Maypr, &c., of N. Y. v. 
 Butler, 1 Barb. K. 336. The submission a;nd award being in writing, cannot be explained 
 or contradicted by parol ; but oral evidence may be given to show that the arbitrators 
 exceeded their powers, thereby invalidating their award. S. C, 1 Hill, 489 ; 7 Hill E. 329. 
 So, where an award signed by two of three arbitrators contains a recital stating that the 
 matters in controversy were heard and decided by them, it may be proved by parol evi- 
 dence that the three were present. Such evidence does not contradict nor alter the award 
 in any respect. Schultz v. Halsey, 3 Sand. 405. The rule, however, is general and well 
 settled that the award of arbitrators cannot be shown by parol testimony to mean some- 
 thing different from what it plainly declares; and that not even the testimony of the 
 arbitrators can be received to contradict or impeach it. Doke v. James. 4 Comst. R. 568 ; 
 Fidler v. Cooper, 19 Wend. 284 ; Dater v. Wellington, 1 Hill R. 319. The report of an 
 agent employed by an association of merchants in New York, to ascertain the pecuniary 
 standing and credit of merchants and dealers in other places, cannot be deemed a privileged 
 commujiication when made to all the members of the association, some of whoin have no 
 interest in the standing of such merchants and dealers. Taylor v. Church, 4 Seld. 453. 
 But a communication made by an agent to his principal,'in regard to the conduct of a 
 third person connected with the business of the agency, is held to be privileged. Wash- 
 bum V. Cooke, 3 Denio, 110. And a communication by letter from a banker in the country 
 to a mercantile house in New York, explaining a week's delay in remitting the proceeds 
 of a note sent to him for collection, in these words, " GonfideniiaZ. Had to hold over for a 
 few days for the accommodation of the makers," is regarded aS privileged. Lewis & 
 Herrick v. Chapman, 16 New York Rep. 369. The rule as sanctioned by the Court of 
 Appeals is this, " that a communication made, bona fide, upon any subject matter in which 
 the party communicating .has an interest, or in reference to which he has a duty, is 
 privileged, if made to a person having a corresponding interest or duty, although it con- 
 tain criminatory matter which, without this privilege, would be slanderous and actionable." 
 The rule was applied in a case where the trustees of the College of Pharmacy in New 
 York appointed a committee to investigate complaints in respect to the importation of 
 spurious and adulterated drugs, and the committee made and presented their report to the 
 Secretary of the Treasury, charging the examiner and inspector of drugs with gross 
 violation of his official duty. Van Wycfc v. Aspinwall, 17 N. YrRep. 190. The rule does 
 not protect a communication to the public through a newspaper in respect to a candidate 
 for an office, the appointment to which is to be made by the Common CounoU of a city. 
 Hunt V. Beimett, 19 N. Y. Rep. 173. Nor to the speech of a convict made at the time of 
 his execution. Sandford v. Bennett, 24 N. Y. Rep. 30. 
 
 An arbitrator is competent to prove that matters were included in the award not con- 
 "tained in the submission, but not competent to contradict the terms of the award or to 
 •prove errors or mistakes made by the arbitrators. Biiggs v. Smith, 20 Barb. 409. He is 
 mot competent to show the misconduct of himself or his associates, by testifying to what 
 ■ occurred in their intercourse with each other or in their deliberations ; but he is compe- 
 tent to prove the time of the last hearing, which was beyond the time limited in the 
 i submission, and what occurred openly at a previous hearing, fixing the time for the final 
 ..summing up and submission of the cause. Cole v. Blunt, 2 Bosw. 116. In Haggart v. 
 Morgan (1 Seld. 422), the umpire was called as a witness, and testified without objection 
 "that he united with one of the arbitrators in making an award, after the time limited by 
 rthe submission ; and the arbitration having failed without the fault of either party, an 
 /action was sustained on the contract which itself provided for a settlement of any disputes 
 sunder the same by arbitrators. 
 
 Every reasonable intendment will be made to uphold an award ; it will be held good, 
 though in its terms less comprehensive than the submission, unless it appears that matters 
 ; submitted were brought before the arbitrators which are not embraced In the award. Ott 
 ^v. Schroeppel, 1 Seld. 482. 
 
 (1) Curry v. Walter, 1 Bsp. 456. See Sparke v. Middleton (1 Keb. 505), where the 
 .-counsel for the defendant was called by the plaintiff and was allowed to tsLe a special 
 oath. See also Baillie's Case, 21 How. St. Tr. 358, 861. 
 
 What -an attorney or solicitor said on the trial may be proved, where it is essential to 
 Tthe ends of justice ; but if pertinent to the issue, it cannot be made the foundation of a 
 suit for libel. Warner v. Payne, 2 Sand. 195 ; Garr v. Selden, 6 Barb. 416 ; Suydam v. 
 Moffat, 1 Sand. 459. In an action by an attorney for libel, it is not admissible for any 
 purpose to show that his application for admission as an attorney was denied. Huff v. 
 Bennett, 2.Sald. 337. 
 
SEC. 11.] From Regard to Public Interests. 135 
 
 in a cause before the under-sheriff, he will not he permitted to give evidence 
 as a witness in the same cause. (1) 
 
 Before grand jury. A grand juryman may he questioned as to matters 
 laid before the grand jury in the course of a criminal proceeding ; where the 
 question was whether a defendant in an action for a malicious prosecution 
 was the prosecutor, Lord Kenyon, C. J., allowed the counsel for the plaintiff 
 to make that inquiry of a grand juryman ; being of opinion that this inquiry 
 did not infringe upon the official oath taken by the witness. (2) And the 
 
 same course has been adopted in a later case before Park, J. (3) 
 *167 *0n the trial of Watson for high treason, a witness was questioned 
 by the counsel for the prisoner, as to his having produced and read a 
 certain writing before the grand jury : this being objected to by the solicitor- 
 general, Lord EUenborough, C. J., said: "He had considerable doubt upon 
 the subject : he remembered a case in which a witness was questioned as to 
 what passed before the grand jury, and though it was a matter of consider- 
 able importance, he was permitted to answer." ^The solicitor-general then 
 intimatmg, that if such a case had not occurred, he should have thought 
 that " what passed before the grand jury could not properly be inquired 
 into, as they are sworn to secrecy," Lord EUenborough, 0. J., added, that 
 " He had doubts, and that mariy very eminent men at the bar had enter- 
 tained doubts upon the point ;but that he remembered the case perfectly. "(4) 
 Here the matter seems to have dropped; and the question as originally put, 
 was not repeated. 
 
 The Court of King's Bench have refused to receive an affidavit from a 
 grand juryman as to the number of the grand jury who concurred in find- 
 ing a bill. (5) And where the grand jury had found a bill of indictment 
 containing ten counts, with the mdorsement " a true bill on both counts," 
 the last three words being smeared, so that it seemed doubtful whether 
 they were not meant to be blotted out, Patterson, J., would not, after the 
 grand jury had been discharged, allow any of them to be called to explain 
 their finding. (6) 
 
 The principle upon which a gtand juryman is not allowed to give evi- 
 dence to certain matters sworn to before him, would rather seem to rest 
 
 (1) Stones V. Byron or Bacon, 4 Dowl. & L. S93 ; S. C, I B. C. R. 248, S. P. ; Dunn v. 
 Packwood, 1 B. C. R. 313. 
 (3) Sykea v. Dunbar, 3 Selw. N. P. 
 
 (3) Freeman v. Arkell, 1 C: & P. 137. 
 
 (4) 83 How. St. Tr. 107. And see the discussion in Sir J. Fenwick's Case, 5 Harg. St. 
 Tr. 73. In a case cited 13 Vin. Ab. Ev. 5, the evidence of the derk of the grand jury was 
 rejected. 
 
 Note 77. — Grand jurors are bound to testify whether the testimony of a witness before 
 the grand jury was different from his testimony in court ; and to disclose the testimony 
 given before the grand jury by one who is afterwards prosecuted for perjury in such oath, 
 both upon the complaint and trial ; but he wiU not be allowed -to testify in what manner 
 any grand juror voted, or what opinions he expressed. 3 N. Y. R. S. 724, § 81. The 
 attorney of the commonwealth shall not be required to disclose whut passed in the grand 
 jury room. Commonwealth v. Tilden, 1823, before Putnanj, J., cited in a note to the Am. 
 ed. of 3 Stark. Ev. 400. So of a clerk to a grand jury. Vin. Abr. Bv. 106, and Id. 400. 
 A grand juror cannot be called to impeach the conduct of the juiy ; to show, for instance, 
 upon the trial of an indictment that it was presented by the grand jury without testimony, 
 or upon insufficient testimony. People v. Hulbut, 4 Denio, 133. 
 
 (At common law, a juror has been held incompetent to prove misconduct in his fellow 
 jurors to impeach the verdict. State v. Freeman, 5 Conn. R. 348. And a grand juror 
 incompetent to prove that a witness sworn before the petit jury swore differently before 
 the grand jury. Imlay v. Rogers, 2 Halsted, 847. But a juror has been admitted to prove 
 improper attempts by a party to influence the minds of the jury, Denn ex dem. Chews 
 V. Driver, Coxe, 166.) 
 
 (5) R. V. Marsh, 6 A. & E. 236. • 
 
 (6) R. V. Cooke, 8 C. & P. 584. See, further, Vin. Abr. Evidence, H ; 4 Bl. Com. 126, and 
 note by Christian. 
 
j,36 Of the. Exclusion of Msicknce, &c. [ch. tu. 
 
 upon general grounds of public policy, than upon the fact that he is sworn 
 to secrecy, as suggested in Watson's Ca8e.(l) 
 
 *168 '^Conduct of petty, jurymen.. The courts also are constantly in the 
 habit of rejecting affidavits, sworn by petty jurymen for the purpose 
 of showing that their verdicts ha,ve been decided by lot;(2) or the affida- 
 vits of strangers, stating an'admission by a juror to that efFect ;(3) or that 
 a similar decls^ration had been made by pne of the jury in open court in the 
 presence and hearing of Ms . fellows. (4) And these decisions must rest 
 entirely upon the ground of public policy, as the petty jury are not sworn 
 to secrecy. , , , ^i ' i 1-1 
 
 When the purposes of public justice require that certain evidence should 
 be given, whi^h the court from regard to. decency would be disposed to_ sup- 
 press (whether upon indictments for crimes, or on questions of private rights 
 ,or private wrongs), the evidence, however inconvenient, must be disclosed, 
 it has therefore been considered, that Mr. Justice Burnet was wrong in 
 refusing to try an action of defamation, in which a woman charged a man 
 with proclaiming to the wft-ld that she had secret defect in her person, and 
 the defendant by plea justified, that it; was true that she had sUch defect. (5) 
 But the courts have frequently refi^sed to try wagers, on the ground of their 
 leading to admission of indecent evidence, or as unnecessarily injuring the 
 feelings of third parties : such as a wager respecting the sex of a third per- 
 son, (6) or whether an unmarried woman had had a child. (7) 
 
 We have seen before that, upon principles of public decency and policy, a 
 husband or wife shall not be permitted to say, after marriage, that they have 
 had no connection, and therefore, that the offspring is spurious. (8) 
 
 (1) TJt swpra. And see Lee q. t. v. Birrill, 3 Campb. 337. 
 
 (2) Vaiae v. Delaval, 1 T. R. 11 r Owen v. Warburton, 1 N. E. 336. 
 See State v. B'reeman, 5 Conn. R. 348, mpra. 
 
 (3) Straker v. Graham, 4 M. & W. 721. 
 ' (4) Burgess V. Langley, 5 M. & G. 723. 
 
 (5) By Lord Mansfield, in Da Costa v. Jones, Cowp. 733. 
 
 - But it was lield in' tliis case that the court would, not, on a wager as to the sex of a 
 particular person, allow witnesses to be examined on the subject, such as servants and 
 physicians of that person. 
 
 (6) Da Costa v. Jones, ut xuipra. 
 
 (7) Ditchbum v. Goldsmith; 4 Campb. 153. By the 8 & 9 Vict. ch. 109, § 18, no wager 
 is now recoverable either at law or in equity. 
 
 (8) AnU, ch. 4, § 4. 
 
 The aflBdavits of jurors are not receivable to impeach their verdict for mistake or error 
 in respect to the merits, nor to prove irregularity or misconduct on their own part, or on 
 that of their fellows. Glum v. Smith, 5 HilJ, 560 ; Green v. Bliss, 12 How. Pr. 438. See 
 ante,, note 63. It is not admissible to show by their affidavits or by their declarations, on 
 a motion to set aside their verdict, that the foreman left his fellows to ascertain what 
 amount of damages would carry costs ; 5 Hill, 560 ; in Dana v. Tucker (4 Johns. 487), 
 the affidavit of two of the jury was received in support of their verdict, to show that they 
 did not first agree that each of them should mark down such sum as he thought fit to 
 find, and that the Bum total being divided by twelve, the quotient should be the verdict ; 
 which mode of determining the amount of the verdict is irregular, because it does not leave 
 ^ach juror free to adopt or reject the average sum named. Smith v. Cheetham, 8 Caine's 
 R, 57 ; Harvey v. Eickett, 15 Johns. 87 ; 1 Cow. 338. In principle, it is like an agree- 
 ment between the jurors that the verdict shall be determined by casting lots or by a 
 majority of the jury. Mitchell v. Bhle, 10 Wend. 595. 
 
 The ground of their verdict cannot be shown by the affidavits of a part of the jurors, nor 
 can it be shown by their affidavits, that they intended something different from what they 
 found. People V. Columbia Com. Pleas, 1 Wend. 297 ; nor to show a mistake in making 
 up their verdict, unless the mistake is produced by circumstances passing at the trial, 
 which are equivalent to a misdirection of the judge (6 Cowen, 53), or in entering their ver- 
 dict (Jackson v. Dickenson, 15 John. 309), or a misconception of the rule of damages, 
 derived from the charge of the judge in connection with the argument of counsel. Sar- 
 gent V. , 5 Cowen, 131, IttS. 
 
CH. Tin. J Jiules as to the Exdvsion of Searsay Moidence. 137 
 
 *169 *CHAPTER Vm. 
 
 GENEBAL RULES RELATING TO THE BXCLTJSIOW OF HEARSAY EVIDENCE. 
 
 Havtug investigated several rules for the exclusion of evidence, as regard- 
 ing the peculiar character or situation of a witness, or the peculiar subject 
 of his testimony, we proceed to consider some rules of a more general 
 nature, which have been adopted principally with a view to provide against 
 the danger of juries being, perplexed or misled by evidence of doubtful 
 credibility. 
 
 The first general rule of this description which will be treated of, is the 
 rule relative to hearsay evidence. In the first section it will be convenient 
 to consider the distinction between original and hearsay evidence ; and, in 
 the second section, to treat of the rule, which excludes hearsay. The excep- 
 tions to the rule will afterward be considered in separate sections. 
 
 SECTION I. 
 Of the Distinction between Original and Searsay Evidence. 
 
 When a witness, in the coursei of stating what has come under the cog- 
 nizance of his own senses concerning a matter in dispute, states the language 
 of others which he has heard, or produces papers which he identifies as 
 being written by -particular individuals^- he offers what is called hearsay 
 evidence. This evidence may sometimes be the very matter in dispute, or 
 something from which a pertinent inference, relative to the matter in dis- 
 pute, may be drawn ; or, on the other hand, it may consist of a verbal or 
 written narrative of facts, received by the witness from some other person, 
 which he delivers at second hand to the court. The term, hearsay evi- 
 dence, is used with reference both to that which is written and to that which 
 is spoken. But, in its legal sense, it is confined to that kind of evidence 
 (whether spoken or written) which does not derive its credibility solely 
 from the credit due to the witness himself, but rests also in part on the 
 veracity and competency of some other person from whom the witness may 
 have received his information. 
 
 It may be here stated that the general rule is, and it is a rule of very 
 extensive influence, that hearsay evidence is not receivable. (1) 
 
 *1'70 *Letters as proof of information given or received. In some cases 
 the words or writings offered in evidence are transactions, concerning 
 which the only inquiry instituted is whether they have taken place or not, 
 and in that view they are receivable. For example, letters written to a 
 bankrupt before his bankruptcy, containing matters material to an act 
 of bankruptcy, are admissible, without calling the writer of them, as evi- 
 dence against the bankrupt that he received intimation of certain facts ; 
 but not to prove that the facts were true. (2) So letters written to a person 
 
 (1) As to the principle and policy of this rule, see infra. 
 
 (2) Cotton v; James, 1 M. & M. 273. 
 
 Note 78 — The rule that hearsay is no evidence, is obviously not viol&ted by introducing 
 letters, conversations, &c., of third persons as merely collateral, introductory or incidental 
 to, or in illustration of the testimony -which the -witness gives. 1 Chit. Cr. Law, 368, 369, 
 and authorities there cited. It was accordingly held, that -where a -witness prefaced the 
 facts he swore to -with an account of letters from third persons, -which induced him to take 
 the steps he related, though the story of the letters was objected to, that its admission 
 ■was not improper. The question was on the solvency or insolvency of a distant debtor. 
 To show his solvency, the witness was caUed, and stated that he was a creditor ; that 
 letters excited his suspicion that the party was not insolvent as he pretended. He, there- 
 fore, proceeded against him and collected his debt. Otherwise, if the story of letters had 
 been received as evidence of the fact. Lewis v. Manly, 2 Yeates, 200. So of any other 
 Vol. L 18 
 
138 Distinction between Original and Hearsay Miidence. [ch. viii. 
 
 a short time previous. to fais bankruptcy, and containing a refusal to advance 
 money, are evidence of the fact of such refusal. (1) 
 
 Where letters are admissible in evidence as transactions, it is customary 
 for the judge to allow only that part to be read which relates to the par- 
 ticular transactions. (2) It is, however, an established rule, that letters, 
 which are admissible for one purpose, will not be rejected merely 
 *171 because *they contain hearsay evidence of the truth of facts; but 
 the jury will be directed in the proper use of them as instruments 
 of evidence. (3) » 
 
 In like manner, in an action for a malicions prosecution, (4) a letter and 
 an affidavit were received in evidence, not as proving the facts therein stated, 
 but as proving some collateral fact to be inferred from them ; the first, as 
 showing how the plaintiff came to be bailed ; the latter, as showing a step 
 taken by the persons conducting the prosecution. The evidence, as Lord 
 Tenterden, C. J., observed, was admissible for one purpose, but not for 
 another. 
 
 In an action for libel, evidence that the publisher of the alleged libel 
 followed it up by a charge, the particulars of which corresponded with the 
 imputation in the alleged libel, is admissible on the part of the defendant, 
 not as evidence of the facts contained in the charge, (5) but to show that 
 the defendant, in publishing the alleged libel, acted bona fide and without 
 malice. (6) 
 
 On an issue to try whether a testator had, at any period between the time 
 
 merely introductory inconsequential matter, as that another by certain conversations, not 
 stating any fact which would he evidence, drew the witness's attention to the subject. 
 Morriss v. Lessee of Harmer's Heirs, 7 Pet. Hep. 554. To prove a larceny of cotton, the 
 witness stated that a negro telling him the cotton was in the prisoner's house, he searched 
 and found it there. This not being objected to, was held well. And Henderson, J., 
 inclined that it would have been well with an objection, in order to show the witness's 
 motive for searching. But quere, unless called out by cross-examination as to the motive. 
 State V. Barden, 1 Dev. 518. 
 
 (So a letter written by a person who is not a party to the suit, may be proved as evi- 
 dence of an act done, though its contents may be inadmissible. Lawrence v. Thatcher, 
 35 Com. Law Kep. 631 ; 6 C. & P. 669.) 
 
 (1) Vacher v. Copks, 1 M. & M. 353. 
 
 (2) Ibid. ; Fairlio v. Denton, 3 C. & P. 103. 
 
 So, in Healey v. Thatcher, an action for an assault, the plaintiff having proved the 
 assault, proposed to give in evidence a letter written by his attorney to the defendant, in 
 which the attorney stated that he had known the plaintiff for more than twenty years, 
 and that he was a person of the highest respectability, &c. ; and the court refused to 
 allow that part of the letter extolling the plaintiff to be read. The following passage 
 was then read from the letter: "I am authorized to say, without prejudice, that if you 
 forthwith make a suitable apology . . . ." Qurney, B. This is not receivable in 
 evidence. It is written without-prejudice. If you write without, prejudice, so as not to 
 bind yourself, you cannot use the letter against the other party. 8 C. & P. 388 ; 34 Eng. 
 Com. Law, 443. 
 
 (3) "Willis V. Bernard, 8 Bing. 376. See, also, Whitaker v. Bank of England, 6 C. & P 
 700 ; Whitehead v. Scott, 1 Mo. & R. 3 ; but such letters must be proved in the usual 
 manner Weeks v. Lyon, 18 Barb. 530. 
 
 (4) Taylor v. Willans, 3 B. & A. 845. In Penn v. Scholey (6 Esp. 243), an affidavit 
 made by a stranger was read in evidence. 
 
 (5) 
 (8) 
 
 Finden v; Westlake, M. & M. 561. 
 So, in Taylor v. Church (4 Selden E. 452), it was held, that what the defendant said to 
 the printer, in directing the publication complained of as libelous, was admissible in 
 evidence foi the purpose of disproving actual malice. Jewett, J. : — •' The terms and con- 
 ditions on which the defendant requested the printing and publication to be done, and on 
 which the witness agreed to do it, were admissible in evidence as a part of the res gestm 
 given in evidence by the other side. The evidence called for was pertinent and material 
 in respect to the motives of the defendant in procuring the publication. It tended to dis- 
 prove that the defendant was influenced by actv/jl malice to inj ure the plaintiffs by the 
 publication, and was therefore pertinent upon the *question in respect to the amount of 
 damages to be given beyond a full compensation for the injury, by way of punishment or 
 example." 
 
SBC. I.] Hearsay — Proof of General Opinion. 139 
 
 of his attaining his ftill age and, the time of his death, possessed ordinary 
 powers of understanding, letters written and sent to him during this inter- 
 val, by persons acquainted with him and since deceased, and found among 
 other papers of the testator in his room after his death, are not receivable 
 in evidence to show that he was rational and intelligent at the several times 
 when he was addressed as such by the writers, without som.e previous proof 
 that the testator did some act upon the letters, or with reference to them, 
 that is, some act of an intelligent man. Such previous proof is indispen- 
 sably necessary ; without it, the letters could only be produced in evidence 
 as showing that the deceased correspondents wrote to him as possessing 
 understanding, or in other words, as showing their opinion of his sanity ; 
 
 and in that point of view they would be clearly inadmissible. This 
 *1'72 rule was settled in the case of Wright v. Doe *d. Tatham,(l) which 
 
 underwent frequent discussion. All the judges agreed as to the 
 principle of the rule, though there was a difference of opinion among them 
 on the question, whether certain letters, which had been rejected, ought not 
 to have been admitted under that rule. Tindal, C. J., who disapproved of 
 the rejection of one particular letter, laid down the principle of the rule 
 very clearly and fully in the following terms : (2) " I consider such treat- 
 ment only of a person by his friends or others to be admissible in evidence, 
 upon a question concerning his competency, as appears to have come home 
 to his understanding, and upon which he has been shown in some degree to 
 have acted; for, after all, it is not the treatment itself which is of any value, 
 but the mode in which the party conducts himself, when such treatment 
 takes place. It is not what the third person does, or says, or writes, which 
 furnishes of itself any indication of the state of mind of the party I'espect- 
 ing whom the inquiry is made, buj what such party himself does, or says, 
 or writes, or how he conducts or bears himself on the occasion." And in 
 the latter part of his judgment he said : " The question which the judge 
 had to determine with respect to this letter, was whether there is reasonable 
 evidence to satisfy his mind that it came to the testator, and that he exer- 
 cised upon it some act of judgment or understanding, though in ever so 
 small a degree." 
 
 Proof of a denial of a person at his residence by a wife or servant is 
 original evidence. "Whether the denial is true or false in fact, that is, whether 
 the party denied was or was not at home at the time, may be proved or 
 inferred, if necessary, from other circumstances. The fact of the denial 
 itself may clearly be proved by the party to whom it is made ; and nothing 
 could be added to the credibility of that fact, by calling the person who 
 made it, even supposing that the witness were perfectly disinterested; 
 although the jury may draw an inference from that fact, they are not 
 required to attach credit to the statement of any person not before them. 
 (3) And, clearly, all verbal instructions (as of a bankrupt ordering him- 
 self to be denied to creditors) are in their nature original evidence. (4) The 
 same is to be said of communications of various kinds, where the object of 
 
 giving them in evidence is not that their truth may be inferred solely 
 *173 from the fact of the communication having been made, and from *the 
 
 (1) 7 A. & E. 313-408 ; S. C, 4 Bing. 489. 
 
 (2) 7 A. & E. 403. See, also, the judgments of Bosanquet, J., and Parke, J. 
 
 The general rule is, that letters written to a person and unanswered can only be proved 
 against him as evidence of a notice, or of a demand made. Fairlie v. Denton, 3 C. & P. 
 103 ; M'Namara v. Glbbs, 41 Eng. Com. Law K. 237 ; Richards v. Frankum, 9 C. & P. 231. 
 And where the letters are expressly written " without prejudice," they cannot be given in 
 evidence against either party. Paddock v. Forrester, ^ Eng. Com. Law, 470. 
 
 (3) Att. Gen. v. Good, M'Clel. & T. 286. See, also, Key v. ShaW, 8 Bing. 320 ; Charing- 
 ton V. Brown, 1 B. Moore, 341 ; Crosby v. Percy, 1 Taunt. 364. 
 
 (4) Jameson v. Eamer, 1 Esp. 281 ; Gillingham v. Laing, 6 Taunt. 532 ; Fisher v. Boucher, 
 10 B. & C. 710 ; Vincent v. Prater, 4 Taunt. 603. 
 
140 Searsay — Proof of General Opinion. [ch. Tin. 
 
 credit of the person making it, but merely to establish the fe,ct that the, 
 communication had been inade.(l) 
 
 Reputed ownership: Upon an inquiry respecting reputed ownership under 
 the bankrupt laws, hearsay evidence of the opinion of neighbors is admissi- 
 ble, either to prove or disprove the reputed ownership of the bankrupt. 
 In one case, Gibbs, O. J., observes : "What is reputed ownership ? It is 
 made up of the opinions of a man's neighbors — it is a number of voices 
 concurring upon one or other of ' two facts." (2) The existence of a 
 
 (1) Shott V. Streatefield, 1 Mo. & R. 8 ; Whitehead y. Scott, Id. 3. 
 
 (3) Gurr v. Rutten, Holt's N. P. C. 327. See Oliver v. Bartlett, 1 B. & B. 369 ; S. C, 
 2 B. Moore, 592 ; MuUer v. Moss, 1 M. & S. 335. 
 
 NoTB 78. — (Hearsay evidence is inadmissible to create Or destroy a title to property, 
 thougli admissible for other purposes. Carter v. Biicbanan, 9 Geo. 539. For instance, 
 in an action by C, for property seized on execution against A., it was held improper to 
 admit evidence that it was notorious that the property belonged to A. Jones v. Jennings, 
 10 Humph. 428. But declarations accompanying the delivery of property made by owner 
 or by the bailee, may be proved to show or rebut the fact of a gift. Garner v. Smith, 7 
 Gill, 1.) The position of our author, that hearsay of a fact is inadmissible as evidence of 
 that fact, is still adhered to with very great strictness. The general rule has been repeat- 
 edly advanced and vindicated by the American courts, and the various aspects in which it 
 is maintained very clearly presented by our reports, as well as by several English cases 
 decided since our author wrote. See Commonwealth v. Hart, 1 Ashm. Rep. 77, 78, 79 ; 
 Dean and Chapter of Ely v. Caldecott, 7 Bing.'433; Wilson v. Harding, 2 Blackf. 
 Eep. 241. 
 
 The leading American case on the subject was before the Supreme Court of the United 
 States, February 5, 1818, upon a writ of error. The suit in the court below was by a 
 black woman and her child against one who claimed them as slaves. The issue was upon 
 the freedom of the plaintiffs. On the trial, they offered a witness to a fact respecting 
 their ancestors, which the witness heard his mother say she had frequently heard from 
 her father. This was overruled. The plaintiffs also offered another witness to prove 
 what he had heard the ancestor of the plaintiffs say respecting her (the ancestor's) 'jplace 
 of birth and residence. This was also overruled. The plaintiffs then . read a witness's 
 deposition to what he had heard respecting the manner of the importation of the ancestor 
 of the plaintiffs ; and the court instructed the jury, that if they should believe from the 
 evidence, that the existence of the report was not stated by the deponent from Ms own 
 knowledge, but from what had been commiunicated to him respecting the existence of 
 such a report many years after the ancestor's importation, without its appearing by whom 
 and in what manner the same was communicated to him, then the evidence was incompe- 
 tent to prove either the existence of the report', or the truth of it. Exceptions were taken 
 on all these points ; and the verdict being against the plaintiffs, on error brought, Mar- 
 shall, Gh. J., said several exceptions depended on one general principle; that hearsay 
 evidence is incompetent to establish any specific fact which is, in its nature, susceptible of 
 being proved by witnesses who speak from their own knowledge. It is a rule of evidence 
 that "hearsay ." is, in its own nature, inadmissible. That this species of testimony sup- 
 poses some better testimony, which might be adduced in the particular case, is not the 
 sole groimd of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind 
 of the existence of the fact, and the frauds which might be practiced under its cover, 
 combine to support the rule that hearsay evidence is totally inadmissible : the general 
 rule supports the case ; and the case is not within any exception heretofore recognized. 
 This court is not inclined to extend the exceptions further than they have already been 
 carried. Mima Que~en and child v. Hepburn, 7 Crancli, 290, Duvall, J., dissented. But 
 in Negro John Davis v. Wood (1 Wheat. 6, 8), Marshall, Ch. J., said the court had 
 *174 revised its decision in *the case of Mima Queen and child v. Hepburn, and con- 
 firmed it. In the first case the court approved of the reasoning of Lord Kenyon, 
 Ch. J., and Grose, J., in Rex v. The Inhabitants of Eriswell, 3 T. R. 707, against the 
 ex parte deposition of a pauper (though the pauper had become insane after the deposition 
 had been taken officially before magistrates), being received as hearsay evidence in respect 
 to a hiring, in order to constitute a settlement. Vid. 3 T. R. 708, 709 Id. 723. "This 
 reasoning, they said, had been afterwards adopted. We suppose they alluded to Rex v. 
 The Inhabitants of Nuneham Courtney, 1 East, 373 ; Rex v. The Inhabitants of Ferry 
 Frystone, 2 East, 54 ; and Hex v. The Inhabitants of Abergwilly, Id. 63 ; all which go 
 clearly to exclude hearsay or ex parte depositions in respect to facts constituting a pauper's 
 settlement, though he be absent or dead. 
 
 The decisions in Maryland formerly stood in conflict with Mima Queen v. Hepburn. In 
 one case the plaintiff, in a suit for freedom, was allowed to prove by the witness that she 
 (the witness) had heard her mother-in-law say, "Just so they served Ann Joice's family" 
 (of which the plaintiff was a member). " By all accounts they are in confinement now, 
 
sfic. I.] Hearsay — JProof of General Opinion. 141 
 
 and they ought to have been free long ago." Mahoney v. Ashton, 4 Har. & M'Hen. 295, 
 At p. 309, Johnson arg. mentions six cases decided In the same state, in which the like 
 hearsay evidence had been admitted to prove freedom. And in ejectment, the lessor to 
 the plaintiff was allowed to prove by hearsay from deceased memhers of the family, 
 that some of the ancestors of the lessor of the plaintiff emigrated from England, and that 
 another had been kidnapped in England, and sold in Maryland. Pancoast's Lessee v. 
 Ad<Mson, 1 Har. & John. 350. It was also held, that hearsay and reputation in the lessor's 
 family, that one imder whom the . lessor claimed as heir, died possessed of land, and that 
 this land was held by the family in which he lived, was admissible. Id. 'J hese cases, 
 however, are all shaken, and those in respect to freedom directly overruled, by a subse- 
 quent case in that state, which adopts the principle of Mima Queen v. Hepburn. The 
 plaintiff was descended from a black woman named Violet, who was his grandmother. 
 He offered a witness to show that he had lived in Violet's neighborhood, where it was 
 reputed that she was entitled to her freedom. This was held admissible. Walkup v. 
 Pratt, 5 Har. & John. 51, 56. 
 
 In Virginia, too, the authorities at one time looked much like receiving this kind of 
 evidence. By two early cases, hearsay and reputation derived from deceased persons 
 seemed to have been admissible, in order to show the freedom of a person, though it 
 related not merely to his pedigree, but also to the particular quality or character of his 
 ancestor ; as that he was an Indian, and had the appearance of an In dian, and was so 
 called ; and was said to have been imported at such a, time. Jenkins v. Tom et al., 1 
 VTash. Rep. 123 ; Pegram v. Isabell, 2 Hen. & Munf 193. In a latej ease one of the judges 
 expressly adopted Mima Queen v. Hepburn, with the general reasoning of that case. 
 Gregory v. Baugh, 4 Hand. 611, 615. The court decided that a belief in the neigborhood, 
 some 50 or 60 years before, that the female ancestor of the plaintiff was entitled to her 
 freedom, was not receivable. Id. On the case coming again before the court, they were 
 equally divijied on the question decided in Mima QuJen v. Hepburn. Gregory v. Baugh, 
 2 Leigh, 665. 
 
 (Under the latter decisions, it has been held in the slaveholding states that the fact of a 
 person's being black raised a presumption that he was a slave. Brookfield v. Stanton, 6 
 Jones Law (N. C), 156 ; Boulware r; Hendricks, 23 Texas, 667: This presumption -which 
 arose only in respect to the African or negro race, extended to persons less than on& fourth 
 negro. Daniel v. Guy, 19 Ark. 121; Gaines v. Ann, 17 Texas, 211. 
 
 Evidence that a person of color had been treated and regarded as a free person for over 
 thirty years, by the community and tflao by his former owner, was held to raise every pre- 
 sumption in favor of a legal and actual emancipation. Jarman v. Humphrey, 6 Jones 
 Law (N. C), 28, 156. Proof that " he was generally reputed to be free, and had acted and 
 passed as a freejnan," was also admitted in evidence against him. State v. Patrick, Id, 
 308. The conduct of the claimant, in connection vrith the general repute, was held admis- 
 sible to establish a qualified or defeasible title. Shue v. Turk, 15 Qratt. (Va.) 256. In 
 this state, while a remnant of slavery remained in it, a manumission by two of three 
 joint owners of a slave, was held to make him a free man ; since he could not be partly free 
 and partly slave ; and the conduct of the third joint owner in suffering the slave to act as a 
 free man, was held to authorize the inference of manumission by him. Oatfield v. Waring, 
 14 John. 188.) 
 
 On a proposition to prove by hearsay, that the body of a particular man was found, and 
 was buried at a particular time and place, this was held inadmissible. Sutherland, J., said 
 that particular and isolated facts cannot be proved by hearsay or general reputation. The 
 evidence of such facts is not supposed to exist only in general reputation and hearsay, as 
 it is in cases of pedigree, presciiptipn and custom. Jackson ex dem. The People v. Etz, 5 
 Cowen's Rep. 319, 320. 
 
 In one case, the declaration of a father as to the age of his son, was received to support 
 the defense of infancy, the father, according to the Ux loci (which was the civil law), not 
 being a competent witness for his son. But this was where the declaration was in nature 
 of the proof of pedigree, and therefore admissible in itself as secondary evidence. David 
 V. Sittig, 1 Mart. Louisiana Rep. (N, S.) 147, ' 149 ; S. C, 'post. It is, in general,- however, 
 no argument for receiving the hearsay of a person, that he is dead, or otherwise disquali- 
 fied, under the notion that it is the best evidence the nature of the case admits. And 
 where a justice received evidence of what a deceased witness present at an exchange of 
 horses, said as to the terms of the bargain, the judgment was reversed 'for the error. Gray 
 V. Goodrich, 7 John. Bep. 95. Indeed this was held iis to the judicial ea; yorte exaniina- 
 tion of a pauper on oath, who afterwards died. Rex v. Perry Fryston, 8 East, 54 ; Rex v. 
 AbergwiUy, Id. 63. So the letters of an agent to his principal, giving an account of 
 *175 his agency, are not admissible for the principal even after the agent's death. ■ *Mor 
 ton's Adm'rs v. Smith, 4 Monroe, 314. See also Kent v. Walton, 10 Wend. 256, S. 
 P. ; and Westbrook v. Ha*beson, 2 M'C!ord's Ch. Rep. 112, 117, S. P: ■ Nor can the declar- 
 ations of the deceased, that he was ageiit, be received. Floyd v. Woods, 4 Terg. 165. A 
 fortiori where the witness is alive, though he has become insane (Res v. -Erisw«ll, 7 T. B. 
 797), or where he is absent and cannot -srtth any diligence be pToeui>ea (Rex v; Nuneham, 
 1 East, 873), or -where he keeps out of the way to avoid a flubpcenar-(Woodw»rd v. Paine. 
 
142 Hearsay — Proof of General Opinion. [ch. vin. 
 
 15 John. Eep. 493). In trespass, for seizing and selling the plaintiff's horses at auction, 
 the defendant set up, to mitigate damages, that they were in truth purchased by one H., 
 with money which the plaintiff himself furnished H. for that purpose. This he offered to 
 show by H.'s declarations. And it appeared that H., who had bid off the horses, lived in 
 the plaintiff's family at the time, and was very poor, and had first kept out of the way to 
 avoid being subpoenaed ; and that finally being subpoenaed, he had absented himself from 
 the trial. His declarations were, however, rejected ; and on motion for a new trial, held 
 well. Woodward v. Paine, 15 John. Rep. 493. 
 
 Under what qualifications the above doctrine, that death creates no exception, is to be 
 received, we shall see when we hereafter come to notice the memoranda of deceased per- 
 sons, made in the course of their office or business, &c. These are many times admissible 
 on the ground of death. 
 
 So, though a witness be excused from answering, on accoimt of his privilege, as to a 
 fact (his having promised marriage for instance) wMch might affect his rights, what he 
 was heard to say on that question, is not, therefore, admissible for proof of the fact. 
 Nettles V. Harrison, 3 M'Cord. 330. 
 
 Nor is it a reason for receiving the declaration of a third person, that he is a slave, and 
 therefore an incompetent witness. Fox v. Lambson, 3 Halst. 375. 
 
 Nor is it a reason for receiving such a declaration against the party, thftt the witness is 
 interested to testify in favor of the party ; as if he claim under the same wUl, or is bail 
 or security for costs. Walkup v. Pratt, 5 Har. & John. 57. Accordingly, on trial of 
 freedom, the defendajit claimed the plaintiff as a slave, under a residuary clause in one 
 Ruth's will and the plaintiff offered as evidence in his favor the declarations of Ruth's 
 widow, who had an interest in part of her deceased husband's estate ; but held inadmissi- 
 ble. Id. 51, 57, 58. 
 
 Upon the same principle, in an action against two surviving obligors, on a bond exe- 
 cuted by three persons to the plaintiff, the confession of a judgment by the executor of 
 the deceased obligor on the same bond, was rejected as incompetent evidence' against the 
 survivors. Wilmer v. Harris, 5 Har. & John. 1, 9. 
 
 Nor is the abstract reason that the admission is against the interest of the party making 
 it, an argument for receiving it against another. Thus, the admission of the indorser of 
 a note, that the indorsement is in his handwriting, is no evidence to charge the maker. 
 Robertson v. Crockett, 1 Terg. 303. See Watson v. Williams,' 1 Harp. Eep. 447. The 
 admission of creditors and others, that they had been paid money, in favor of the person 
 paying as surety or on request, and to charge the principal in an action for money paid, 
 has been received ; but with how much propriety, is brought under examination. 
 
 So, though we shall see hereafter, that hearsay may be received as to boundaries, yet it 
 cannot be extended to questions in respect to other characteristics of the property or 
 jurisdiction. Thus, on a question. as to the boundaries of a town, Chambre, J., rejected 
 hearsay evidence from aged persons since deceased, that there had formerly been houses 
 where none now stood, observing that this was evidence of a particular fact, and not of 
 general reputation. Ireland v. Powell, Salop Sp. Ass. 1830 ; Norris' Am. ed. Peak. Ev., 
 from 5th Lond. ed. 37. See Stratford v. Sandford, 9 Conn. Eep. 375, 384, 385. 
 
 So, though we have seen that the declarations of an agent are receivable when part of 
 the rm gestm, yet we also noticed that when made subsequent to the act of agency, and 
 in the past tense, they must be taken as mere hearsay. In pursuance of this principle, 
 the chancellor suppressed that part of the answer to an interrogatory which stated the 
 declarations of agents that they had made the agreement in question between the parties 
 in the cause. Phijlips v.' Thompson, 1 John. Ch. Rep. 131, 137, 138. And see Morton's 
 Adm'rs V. Smith, stated supra. An agent to collect an account, acknowledged that he 
 had collected it ; and this was received. by the court below as evidence against the plaintiff 
 his principal ; but held error. Davis v. Whitesides, 1 Dana's Eep, 177. See notes 80, 81. 
 The declarations of third persons as to the loss, &c., of papers which they had 
 *176 possessed, *cannot be received in order to let in secondary evidence of the contents. 
 Jackson ex dem. Watson v. Cris, 11 John. Rep. 487 ; Governor v. Barkley, 4 Hawks, 
 20 ; Rex v. Denio, 1 Mann. & Byl. 394. These cases are all stated infra, passim. 
 
 It the hearsay evidence be received without objection by the other side at the time, it 
 is of course too late afterwards to raise any objection upon the abstract ground of incom- 
 petency. State V. Barden, 1 Dev. 518. 
 
 That the declarations of a witness as to his interest, or other questions as to his com- 
 petency in a cause, not under oath, are objectionable, we saw ante, note 48, with the cases. 
 The same point has been recently held in Indiana. Sims v. Qivan, 2 Blackf. Rep. 461. 
 
 Other instances and aspects, in which hearsay testimony has been presented, but quite 
 uniformly rejected, will appear by the following short notes of the cases. 
 
 Where the question, on the trial of an action of trespass, de bonis asportatis brought by 
 A. against B., was whether a previous sale of the goods from C. to A. was bona fide and 
 for valuable consideration ; A. claiming that the consideration was a debt due by note to 
 her from a manufacturing company, which note C. had received of her, promising to 
 account with her for it, offered D. to testify that he had seen on the note book of the com- 
 pany, kept by C. as their agent, and from time to time exhibited to them, an entry of such 
 
SEC. I.] Searsay — What is such and Inadmissible. 143 
 
 note, particularly describing it ; held, that the testimony of D. and the books themselves 
 were inadmissible, both being in the nature of hearsay, besides being secondary evidence. 
 Treat v. Barber, 7 Conn. Rep. 274. Where land had been devised by A. to his widow for 
 life, remainder to B., evidence of declarations by the widow that the will was made by 
 her under undue influence and imposition practiced on the testator, was ruled to be 
 inadmissible against the remainderman, in. an action brought by him to recover the estate. 
 Gallagher's- Lessee v. Rogers, 1 Yeates, 390. The declaration of the widow of an obligee 
 in a bond, who had possessed herself of the bond against the consent of the executors, 
 and who was not interested in the bond, were ruled to be inadmissible to prove that the 
 bond was discharged. Boltz v. Bullman, 1 Yeates, 584. In an action against A. for 
 having falsely represented B. as a, man of property and integrity, thereby inducing the 
 plaintiff to trade with him, a, letter from B. to the plaintiff, acknowledging the receipt of 
 merchandise from him, is inadmissible as evidence against the defendant. Longenecker 
 v. Hyde, 6 Bin. 1. Declarations of a witness cannot be given in evidence, except in answer 
 to other declarations of the witness, inconsistent with what he had before sworn to. 
 Wright V. Decklyne, 1 Pet. C. C. Rep. 203. Where a German party conspired against an 
 English party in a church, to prevent the use of the English language there ; on trial 
 of the conspiracy, held, that what a witness who had been examined for the common- 
 wealth had been heard to say as to the views and intentions of the prosecutors, was not 
 evidence, it not appearing that he was connected with the prosecutors, and the evidence 
 not being offered to discredit him. The Commonwealth v. Eberle and others, 3 Serg. & 
 Rawle, 9, 16, 19. Whether it is evidence on any ground except to discredit him, as he 
 might himself be examined in respect to their views and intentions — quere. Id. 9, 17. 
 
 In ejectment, the plaintiff was permitted, in the court below, in order to impeach a sur- 
 vey, to prove what a chain bearer said showing his misconduct and want of fairness in 
 carrying the chain ; but this was held clearly inadmissible on error, and the judgment 
 was reversed for that cause. Claiborne v. Parish, 2 Wash. 146. Note. This was probably 
 what he said after the service was completed. If at the time, we shall see in a future note 
 that the declaration would have been receivable as a part of the res gestm. On appeal 
 from an order of two justices, Tespecting the settlement of a negro, the sessions admitted 
 the declaration of R., in behalf of the respondents, that the negro was formerly his slave, 
 and was manumitted by him, and decided against the appellants ; but the order of the 
 sessions was reversed by the Supreme Court, though they said it might have been different 
 had B.'s declaration been made while he was in possession of the negro. Overseers of 
 Germantown v. Overseers of Livingston, 2 Caines' Rep. 106. See post, where we speak of 
 declarations constituting part of the res gestm. In ejectment, where the defendant derived 
 his title frpm A., who derived from B., it was held that he could npt give in evidence the 
 declarations of A. and B. as to the loss of the deed from B. to A. Jackson ex dem. Watson 
 V. Cris, 11 John. Rep. 437. An ejectment was brought by M. to contest a will ; and, in the 
 course of the trial, her counsel admitted that he had a letter written by the testator to T. 
 This letter was alleged to be material by the defendant's counsel, who said that its mate- 
 riality would appear by the letter from T. in reply ; that this letter in reply disclosed 
 *177 the contents of *the testator's letter, and showed that it was important on the point 
 of mental capacity. On a subsequent trial between other parties as to the validity of 
 the same will, the admissions of the counsel and the letter of reply were offered as evidence 
 to prove the contents of the testator's letter. Held inadmissible ; for both the admission 
 and the letter of reply were mere hearsay. M'Cully v. Barr, 17 Serg. & Rawle, 445, 451. 
 Hearsay evidence is inadmissible to prove a sale ; e. g., the sale of a slave. Walkup v. 
 Pratt, 5 Harr. & John, 51, 58, 55, 56. So of what two settlers said as to one having sold 
 his right to another. Lanning's Lessee v. Case, 4 Wash. C. C. Rep. 169, marginal note ; 
 but the point is not mentioned in the report of the case. So, on a question of settlement, 
 the declaration of a pauper that he was warned to leave the town. Braintree v. Hing- 
 ham, 1 Pick. 245. The plaintiff in ejectment deduced a title by descent from V. The 
 defendants then proved a deed of V. in 1800, by which she conveyed the premises in ques- 
 tion to her mother. The plaintiff then proved the mother's certificate, executed in 1824, 
 that the deed was never delivered to her- Held, mere declaration of a third person, and 
 not admissible. Jackson ex dem. Ten Eyck v. Richards, 6 Cowen's Reports, 617. In slan- 
 der for accusing a baker for using adulterated flour, per guod A. B., &c., discontinued tak- 
 ing his bread, witnesses cannot be asked what reason A. B., &c., assigned for not taking 
 the plaintiff's bread. They should be sworn. Tllk v. Parsons, 2 Carr. & Payne, 201. So 
 in slander, per guod, the plaintiff lost her marriage with B., the declarations of the latter, 
 that he did not refuse to marry by reason of the words, were held inadmissible in evi- 
 dence for the defendant. Moody v. Baker, 5 Cowen's Rep. 351, 357. In an action on a 
 note given for the price of a negro sold as a slave, the defense was, that he was not a slave. 
 Held, that proof of his claiming to be free, and being liberated from confinement by the 
 police of New York as a free negro, were not evidence against the plaintiff. Smith v. 
 Hoff, 1 Cowen's Rep. 127. Whether his declaring that he was a slave would be evidence 
 against the defendant ? Quere. Id. To prove the loss of a constable's bond, in order to 
 let in oral evidence, the plaintiff offered the declarations of B., administrator of W., 
 deceased, to whose hands the bond was traced, that on search among his papers, it cpuld 
 
144 Hea/rsay — Inadmissible^ when. [ch. viii. 
 
 not be found. Held inadmissible. Govenlor v. Barkley, 4 Hawks, 20. So showing an 
 instrument in A.'s hands, who, when asked for it, said it was with' others, whose succes- 
 sors had searched for it, but could not find it, is mere hearsay, and no proof of loss. The 
 parties who possessed it should have been subpoenaed. Eex v. Denio, 1 Mann. & Ryl. 
 294. The plaintiff claimed that the defendant had guaranteed a bank bill, passed by the 
 latter to the former, on which point the proof was balanced. The defendant then offered 
 to show, that just before the bill was passed to the plaintiff, he, in ofifering it to another 
 refused to guarranty. Held inadmissible. Anderson v. Hawkins, 1 Dev: 445. E. being 
 indebted to J. and also to W., delivered to the former certain staves, which he was to sell 
 and make both debts, pursuant to an agreement between all three. The sale took place. 
 Held, that any subsequent agreement between J. and R. could not affect W.'s rights ; nor 
 could any declarations on the subject, made by J. and R. Jennings v. Webster, 7 Cowen's 
 Rep. 256. Third persons are not bound by the recitals in an act of sale. Delahoussaye 
 V. Delahoussaye, 7. Mart. Lou. 'Rep. (N. S.) 199. The declarations of the vendor and ven- 
 dee, to support a sale alleged to be fraudulent in respect to ci'editors, made after such sale, 
 are inadmissible. Palfrey's Syndic v. Francois, 8 Mart. Lou. Eep. (N. S.) 360, 263. The part 
 of a witness's testimony relating to what he heard others say, must be rejected. Perillat v. 
 Fuesch, 8 Mart. Lou. Rep. (N.S.) 671. A statute declared that the proceedings of a company, 
 entered in their books, should be evidence, and read in all courts, &>c:; yet quere, whether they 
 shall be so against a stranger. Clarke v. The Imperial Gas Light and Coke Co., 4 Bam. & 
 Adolph. 315. Statements of facts made by a board of propertyy are not evidence. Holt?- 
 apple's Lessee V. PhUlibaum, 4 Wash. C. C. Eep. 356, 357. The letters of an agent to his 
 principal cannot be read in evidence against a third person. United States v. Barker's Adm'x, 
 4 Wash. C. C. Rep. 464, 465, 466. Where the of&cial certificate of a fact is receivable, yet 
 if it certify on hearsay (e. g., a draft of land said to have been surveyed); this is not admis- 
 sible. Dubois' Lessee v. Newman, 4 WasMngtbn's C. C Eep: 74, 75, The defendant 
 made a promissory note payable to the plaintiff in the plaintiff's absence ; and would 
 have proved what a third person standing by at the time said as to the consideration. 
 Held inadmissible, being mere hearsay. Healy v. Jacobs, 3 Garr. & Payne, 616. What 
 witnesses swore on trial of an indictment cannot be shown by a third person, in an action 
 against th« prosecutor for malicious prosecution, they being alive and capable of being 
 
 produced. They should themselves be sworn ; and a Short-hand writer's oath, aided 
 *178 by his notes, was rejected in *such a case. Willans v. Taylor, 3 Moore & Payne, 
 
 850 ; Richards v: Foulke, 3 Hamm. Eep. 52, S. P. 
 In an action by one surety against another for contribution, the declarations of the 
 person to whom they became surety are inadmissible to show which of them paid the debt, 
 or indeed for any otVjr purpose. Thomas v. Thomas, 2 J. J. Marsh. 60, 64. But see 
 Sherman v. Crosby, 11 John. R. 70. In assumpsit against the defendant for use and 
 occupation of negroes and land, it appeared that S., deceased, had conveyed them to the 
 plaintiff; that after this (S. still continuing in possession) he died, leaving L. his widow 
 his sole devisee and sole executrix, who continued the possession till her death. She made 
 the defendant her executor, who acted, and he also took out letters of administration de 
 bonis nan to S., and entered arid took possession of the Same land and negroes, avowedly 
 taking them as administrator de bonis non. Held, tha^ the widow's declarations were not 
 evidence against the defendant ; for though he might take and hold under her, being her 
 executor, yet the whole was subject to S.'s debts in the defendant's hands. Stockett v. 
 Watkins' Adm'rs, 2 Gill & John. Eep.' 826, 343; 344. That a grantor proposed to the 
 witness to convey him in fraud of creditors, that the witness declined to receive a convey- 
 ance, but said the defendant would do it, to whom the grantor did in truth afterward 
 convey, but not in the witness's presence, was denied as evidence against the defendant. 
 Beach v. Catlin, 4 Day, 384. Quere. • See note, post, as to admissions of vendors to affect 
 vendees. On justifying a Blander charging that the plaintiff had sworn falsely as to the 
 residence of A., his declarations as to his residence in the absence of the plaintiff, are not 
 admissible against him. Cherry v, Slade, 3 Hawks, 400. Deeds made by others to one of 
 the parties, and introduced in evidence to operate on another of the parties to the suit, but 
 who is not a party to the deed, though they are evidence that such a deed was executed, 
 are, if evidence at all, very weak as to thefacts they recite. Mitchell v. Maupin, 3 Monroe, 
 185, and see M'Gonnell v. Bowdry's Heirs; 4 Monroe, 394. Where it became material for 
 the defendant to show that C. & C; as partners, had a claim against the plaintiff, the books 
 of C. & C, charging the debt in favor of themselves as partners, were held inadmissible as 
 evidence to show their connection. Juniata Bank v. Brown, 5 Serg. & Eawle, 236. Public 
 reputation that' the Bthosian was an infidel club was rejected as inadmissible to prove 
 the fact. Stow V. Converse, 4 Conn. Rep. 17, 40 to 43. On a bill filed to correct a mistake 
 in a deed, the dedlai-ations of a deceased magistrate, who superintended its execution, are 
 inadmissible. Westbrook v. Harbeson, 2 M'Cord's Ch. Rep. 113, 117. In assumpsit for 
 work, the defense Was that the plaintiff had not done the work according to contract. He 
 answered that the defendant had not furnished materials according to contract. To 
 rebut this, the defendant offered letters from thUd persons to him, and his answers. Held 
 inadmissible. Chain v, Kelso, 7 Mart. Lou. Rep. (N. S.) 268. In an action on a policy to 
 recover a loss by the barratry Of the master, the defense was, that this master was the 
 
SKC. I.] Hearsay — Inadmissible, when. 145 
 
 owner, of whom barratry could not be predicated ; and his declarations that he was owner 
 were offered to prove it. Held inadmissible, teing mere hearsay. Barry v. Louisiana Ins. 
 Co., 13 Mart. Lou. Eep. 193, in connection with S. C, 11 Mart. Lou. Rep. 630. The 
 plaintiffs, in an action against underwriters on a. policy upon a vessel, and in reply to 
 the deposition of a surveyor, to discredit him on the point of seaworthiness, offered his own 
 certificate in evidence. The court told the jury they were not to regard the survey aa 
 proving any facts contained in it. Watson & Hudson v. The Ins. Co. of J^orth America, 
 2 Wash. C. G Rep. 480 ; U. States v. Mitchell, Id. 478, S. P. conceded, viz : that a survey 
 is not per se evidence ; Cort v. The Delaware Ins. Co., 2 Wash. C. C. Rep. 375, S. P. Again ; 
 in an action on a policy of insurance, the defense wag unseaworthiness. To prove sea- 
 worthiness, the plaintiff offered a report of survey. Held admissible to show that a 
 survey was made ; but not to prove the facts stated in it. Watson v. The Ins. Co. of North 
 America, 2 Wash. C. C. Eep. 152. In assumpsit for work and labor, the defense was, that 
 the plaintiff being an infant, his mother and only surviving parent sent Mm to work for the 
 defendant, for his (the plaintiffs) victuals and' clothes. The mother's declarations to this 
 fact were held inadmissible. Berry v. Waring, 2 Har. & Gill, 103. In an action for not 
 delivering the kind of flour contracted for, a witness was interrogated on its value, under 
 a commission ; and answered, " that he was called on in the spring of 1817 to state the 
 difference usually allowed on the sale of flour, between fine, superfine, &c. ; that he then 
 stated the difference was as follows," &c. Held, no more than hearsay, and not admissible, 
 It might be true, and yet the witness have no knowledge of the facts. Williamson v. 
 
 DUlon, 1 Harr. & Gill, 444. Though the prisoner, on trial of an indictment for lar- 
 *179 ceny, may *prove that another stole the property, this cannot be shown by the 
 
 other's declarations. Commonwealth v. Chabbock, 1 Mass. Rep. 144. But it is 
 suggested, that another confessing the crime, and surrendering himself to justice, would 
 be admissible. 3 M'Cord, 238, note. Quere, upon what principle ? It becoming material 
 for the lessor of the plSintiff in ejectment to show that liis ancestor had paid for the locus 
 in quo, he offered for that purpose a memorandum of the payment in his ancestor's hand- 
 writing, which had been found among the title deeds of the estate. Spencer, J., overruled 
 the evidence, saying it was ex parte ; and being so found, could not make it evidence. 
 Jackson ex dem. Kip v. Murray, Anth. N. P. Cas. 105 ; and vid, Jackson ex dem. Beekmau 
 V. Witter, 2 John. Rep. 180. Letters written by a person in no way connected with the 
 title, are not evidence to prove that a person, under whom a party in ejectment claims, was 
 in possession at a particular time. Morris' Lessee v. Vanderen, 1 Dall. 66. The statement 
 of facts by the judges, on granting a new trial, is not evidence in the cause. Drayton v. 
 Wells, 1 Nott & M'Cord, 409. In ejectment, against a tenant who claimed under a cor- 
 poration, an entry, by direction of the trustees, in the' corporate book, was held to be 
 inadmissible, as evidence in favor of the defendant; nor were their oral declarations 
 allowed in proof. Jackson ex dem. Donally v. Walsh, 3 John. Rep. 326. In ejectment, 
 the plaintiff claimed under one Cookson, who and whose execiitor were dead. To show 
 that Cookson had acquired the right of one M., who took title by a land warrant, a list of 
 Cookson's lands, indorsed as such by the executor, which mentioned the warrant to M. 
 and a deed poll from him to Cookson, was offered in evidence. The original deed referred 
 to could not be found. The evidence was holden inadmissible, as mere hearsay without 
 oath. Galloway's Lessee v. Ogle, 2 Binn. 468, 472, per Yeates, J. The declarations of a 
 warrantor in a deed of land, made after the deed given, are not evidence to support the 
 title of his warrantee. Jackson ex dem. Youngs v. Vredenburgb, 1 John. Rep. 159. A 
 constable seized Ward's horses in execution, 'riie plaintiff, M., brought trover against 
 him, the constable ; and proved that in the conversation between him and Ward, they 
 agreed that some time before. Ward had sold the oxen to the plain iff, who recovered; 
 but, on error, held wrong. "The court say enough appeared to satisfy them that the 
 conversation proved was after the judgment and execution. Taylor v. Marshall, 14 John. 
 Eep. 204. 
 
 In de homine replegiando, the plaintiffs claimed their freedom, on the ground that the 
 defendant had made an attempt illegally to export them from New York, a statxite of 
 which state makes them free in such a case ; and offered evidence that when the writ da 
 Tiamine, &c., was served, the officers, in whose custody the plaintiffs then were, and who 
 were acting in behalf of the defendant, were just proceeding from the shore ; and confssaed 
 that the defendant was then about to proceed to New Orleans with the plaintiffs as her 
 slaves. But Thompson, J., overruled the evidence. Aza v. Etlinger, Anth. N. P. Rep. 73. 
 The reporter adds a quere, whether these declarations were not admissible as a part of the 
 res gestoe, within the cases in 1 Campb. Rep. 339, and note ; and 10 John. Rep. 478. See 
 ed. of 1820, of Anth. N. P. Rep. 74, note a. Where the defendant, being sued for debt. 
 Bet up for defense, that, by «■ new contract with him, the plaintiff accepted a third person 
 as his debtor in place of the defendant ;''an indorsement of the amount of the debt made, 
 without the privity of the plaintiff, on a note held by the defendant against such third 
 person, is not admissible to prove such new contract, not being a part of the res gesta but 
 res inter alios acta. Jacobs v. Putnam, 4 Pick. 108. A note was made by a failing debtor, 
 on which the payee made an immediate attachment of the debtor's property. Part of the 
 alleged consideration of the note was an acceptance made by the payee of an order drawn 
 Vol. L 19 
 
146 Hea/rsay — Froof of General Opinion. [ch. vin. 
 
 *180 public rumor has *l)een allowed to be proved in the same Way. 
 
 Thus, in an action for keeping a mischievous dog, by which the 
 plaintiff's child was bitten,(l) Lord Kenyon, C. J., allowed a witness to be 
 asked respecting a report in the neighborhood, that the dog had been bitten 
 by another dog. And of this nature is evidence respecting general char- 
 acter, which, as will be seen in the course of this work, is relevant to various 
 inquiries.(2) The case of Foulkes v. Sellway,(3) is a strong example of this 
 kind of evidence. That .was an action for breach of promise of marriage, 
 where the defense was that the plaintiff was a woman of bad character ; 
 and a witness, who had gone to the place where the plaintiff lived, was 
 £illowed to give evidence of what he there heard. 
 
 General Opinion. In like manner, in an action for destroying a picture, 
 (4) where the defense was that it was a libel, and the subject of inquiry was 
 as to the impression produced by the picture on the minds of the public, 
 the declarations of spectators in looking at it were admitted in evidence ; 
 what was said by the spectators was the effect produced by the picture ; it 
 was not received as evidence' of the painter's design, upon credit given to 
 assertions of persons not before the court, , but to show that the public 
 generally understood, by looking at the picture, that certain individuals 
 were there intended to be portrayed. The declarations of a testator have 
 
 been held to be receivable in evidence, to show his intentions, when 
 *181 *his will is impugned on the grounds of either Traud, circumvention 
 
 or forgery; (5) or to show the state of his mind. (6) 
 
 on him by tlie debtor in favor of another creditor. A subsequent attaching creditor being 
 admitted, under the statute, to defend, the plaintiff offered evidence of his own declarations 
 made on the day when the note was given, that he had agreed to pay the debt secured by 
 the order, to show the acceptance was made before the attachment. Held inadmissible, 
 as this declaration was of a past independent fact, and not a part of the res gestm. Carter 
 V. Gregory, 8 Pick. 165, 168, 169. In a case where it became material to inquire whether 
 one party had not seduced a man from the service of the other, a letter from the man, 
 denying that he had been persuaded away, was rejected as inadmissible evidence for the 
 man to whom the seduction was imputed. It is put on the ground of not being the best 
 evidence. Yet, plainly, it could not be admitted if the writer had been dead. The true 
 ground seems to be, that it was not a part of the res gestm. Munns v. Dupont, 3 Wash. C. 
 C. Rep. 41, note. Trover for silks. Jacoby purchased coffee of the defendant at Philadel- 
 phia on a credit, and gave his notes. He sent the coffee by sea to Marseilles, under his 
 letter of instructions to the supercargo who was also consignee, and went out with the 
 vessel, to invest the proceeds in silk, which was done ; and Jacoby assigned the silks to 
 the plaintiffs in trust for his creditors. The supercargo sent the silks to Philadelphia, 
 consigned to the defendant for the use of Jacoby. The defendant insisted that these were, 
 by agreement of Jacoby when he purchased the coffee, to remain with him as security for 
 his notes ; and he refused to deliver them to the plaintiffs. The supercargo, a Tiitness, 
 swore to the agreement ; but Jacoby, a witness, denied it. Then the defendant offered 
 his letter of instructions, delivered to the supercargo at the time the ship sailed with the 
 coffee, reminding him of the agreement. Held inadmissible The court said Jacoby's 
 letter was properly received, being instructions to the consignee touching his own goods. 
 The defendant's letter was offered to show that he had a special property in the goods of 
 another person. It is not a letter of instructions, but a paragraph thrown into a letter of 
 instructions to answer his own purpose. Jacoby et al, v. Laussat, 6 Serg. & Bawle, 
 800, 307. 
 
 fl) Jones V. Perry, 3 Esp. 483. 
 
 (3) See infra, respecting ReUiianey of Proofs. 
 
 On an indictment for rape, the character of the prosecutrix for chastity may be im- 
 peached by general, though not by particular evidence. Rex v. Clarke, 2 Stark. 341. So, 
 ia seduction cases, where the character of the person seduced has been assailed on the 
 cross-examination, it may be supported by showing her general good character. Bate v. 
 Hill, 1 C. & P. 100 ; Safford v. The People, 1 Parker C. R. 474. 
 
 (3) 3 Esp. 336. 
 
 (4) Du Bost v. Beresford, 3 Campb. 513. 
 
 So, on an indictment, where a placard alleged to be libelous refers to letters, and is not 
 intelligible without them, the letters may be given in evidence without proving the hand- 
 writing of them.' Rex v. Slavey, 5 C. & P. 313. 
 
 (5) Ellis V. Hardy, 1 Mo. & B. 535. 
 
 (6) Doe d. Reed v. Harris, 7 C. & P. 850. 
 
SEC. 1.] ' Searsay — Proof of Feelings^ Conduct, d;c. 147 
 
 .Expressions iised, evidence of feelings, conduct, &e. In cases where it is 
 material to inquire into the demeanor, the conduct and mental feelings of 
 an individual at a particular period, the expressions used by the individual 
 at the period in question are, in their nature, original evidence. For they 
 are the thing its^f which is inquired into, as far as outward behavior is 
 important ; and as evidence of existing inward sentiments, they are unlike a 
 statement of past occurrences ; for they derive their credit from being 
 usually identified with, and naturally resulting from, particular correspond- 
 ing feelings. (1) 
 
 Accordingly, in actions for criminal conversation, where it is material to 
 inquire into the terms upon which the husband and wife lived together, 
 before the connection of the wife with the defendant, it is usual to give 
 evidence of what the husband and wife have said to or of each other, in 
 order to show their mutual demeanor and conduct, and whether they were 
 living upon better or worse ternis.(2) With the same object, evidence has 
 been given of the anxiety expressed by the wife about her husband, and of 
 her mode of speaking of him in his absence. (3) On the other hand, it is 
 admissible, in reduction of damages, to give general evidence that the wife 
 had complained of her husband's treatment.(4) The letters of the wife to 
 the husband, (5) or even to a third person with reference to her husband,(6) 
 are evidence to show what her feelings were towards him. And such letters 
 to a third party are less open to exception or suspicion^ than if they were 
 to the husband. Letters also written to the defendant, before the criminal 
 facts are proved to have been committed, are receivable. (7) In such 
 *182 cases the jury do noi substitute the knowledge of *an absent person 
 for their own, but they reason as from an effect to a cause. 
 
 It is, however, always required that proof should be given that the 
 declarations or letters of a wife, purporting to express her feelings, were of 
 a time antecedent to the date of any facts calculated to raise suspicion of a 
 criminal intercourse, and when there existed no ground for imputing col- 
 lusion. (8) It has been held, that the letters of the wife are inadmissible, if 
 written after an attempt to commit adultery by the defendant. (9) The 
 letters of the wife are not, in general, evidence for the defendant. (10) 
 
 Expressions as to state of health. The expressions of a person afflicted 
 with bodily pain or illness, relative to his health and sensations, have been 
 
 (1) On a trial of an individual for keeping a bawdy house, evidence is admissible of 
 frequent arrests of girls at the house, at late hours of the night, who had been convicted 
 as prostitutes — that such persons were frequently found there: Harwood v. People, 26 
 N. Y. 190. 
 
 (2) Trelawney v. Coleman, 3 Stark. B. 191 ; S. C, 1 B. & A. 90. 
 
 (3) Trelawney v. Coleman, ut supra. 
 
 (4) Winter v. Wroot, 1 Mo. & R. 404. 
 
 (.5) Trelawney v. Coleman, ut supra; Edwards v. Crock, 4 Esp. 39. 
 
 (6) Willis V. Bernard, 8 Bing. 376. 
 
 (7) Elsam v. Faucett, 2 Esp. 562. 
 
 If it appear that the plaintiff in an action for criminal conversation with his wife, con- 
 sented to the adulterous intercourse, such consent is a bar to the action ; and negligence 
 on his part, and loose and improper conduct, may be shown in mitigation of damages. 
 Duberley v. Gunning, 4 T. R. 656 . Smith v. Hasten, 15 Wend. 270. The scope of the 
 inquiry permitted in such cases is very broad ; the moral character and conduct of the 
 husband himself may be inquired into ; the previous relations subsisting between himself 
 and his wife, and his habits and course of Ufe. Bromley v. Wallace, 4 Esp. N. P. Gas; 
 257; Sanborn v. Nelson, 4 N. Hamp. 501 ; Foot v. Tracy, 1 John. 61. So also in an action 
 for enticing away and harboring the plaintiff's wife, character and conduct of the plaintiff 
 may be shown, and the declarations of the wife may be proved, expressive of her wishes 
 in relation to living with plaintiff as his wife ; and in such cases the intent with which 
 the defendant has acted, is a material point of inquiry. Schureman v. Palmer, 4 Barb 
 225 ; Bennett v. Smith, 21 Barb. 439. 
 
 (8) Edwards v. Crock ; Trelawney v. Coleman, Ut supra ; Houliaton v. Smith, 3 C. & P 34. 
 
 (9) Wilton v. Webster, 7 0. & P. 198. 
 
 (10) B. N. P. 28. 
 
148 Hearsay as to State of Health. [ch. viii. 
 
 considered to be in their nature original evidence ; such expressions being 
 ordinarily the natural consequence and the outward indication of co-existing 
 sufferings. " It is every day's experience," said Lawrence, J., in Aveson v. 
 Lord Kinnaird,(l) "that what a man has said of himself to his surgeon is 
 evidence to show what he suffered by reasQp of an assauj^t." 
 
 The representations of a patient to his medical attendant, who has an 
 opportunity of observing whether they correspond with the symptoms to 
 which they refer, appear to be entitled to greater weight than if made to an 
 inexperienced person, and to afford a stronger presumption that they 
 *183 *are genuine :(2) but though the representations have been made to 
 another person, not a medical attendant, they are still admissible in 
 evidence. Thus, in a case of poisoning, (3) a witness who was not a medical 
 man, was admitted to prove a conversation between himself and the deceased 
 a day or two prior to his death, in order to prove the state of health of the 
 latter at the time. 
 
 When a patient enters into a history of his complaint, and relates some 
 earlier symptoms experienced at a former period, he is giving a narrative 
 from memory, rather than yielding to the impressions forced upon him by 
 his situation ; and it would seem, upon principle, that what he says respect- 
 ing the earlier symptoms ought not to be received in evidence. The case 
 of Aveson v. Lord Kinnaird,(4) as to this point, appears to have been 
 decided on its peculiar circumstances. That was an action upon a policy of 
 insurance, by which the plaintiff had insured the life of his wife. The 
 
 (1) 6 East, 188. 
 
 Note 79. — In an action for breach of warranty of the soimdneas of a slave, his declara- 
 tion that he had a pain in his side, by which the disease Was detected, were holden 
 admissible against the defendant. Grey v. Toung, 4 M'Cord, 38. This evidence was put 
 on the ground of its being mere inducement and as admissible from necessity ; but it also 
 plainly stands on the doctrine of the res gestce, within several cases mentioned in the text. 
 See, too, the note of the learned reporter, Id. 41, 42. But see Tumey v. Knox, 7 Monroe, 
 88 contra ; for the negro would not be a competent witness. Yet held that they may be 
 received in connection with and as the foundation of the opinion of a physician, the 
 communication being made to him. Id. In case for giving the plaintiff (a female) a doso 
 to intoxicate and inflanie her passions, her declarations the next morning after the dose was 
 administered, made to her mother, were held admissible. Goodwin v. Harrison, 1 Root. 
 80. But this was treated as an exception from the general rule, founded in the necessity 
 of the case. Conduct and declarations the morning after the homicide were denied as 
 evidence to establish mental disease, in State v. Scott, 1 Hawks, 24. 
 
 (The declarations of a slave in reference to a disease under which he is laboring, are 
 admissible in evidence, whether made to a physician or to any other person. Rowland v. 
 Walker, 18 Ala. 749. So, where an action is brought for fraud in the sale of a slave, 
 the declarations of the latter are from the nature of the case admissible to show the state 
 of his health at the time of making them. Rowlac v. White, 9 Ired. 63. For the same 
 reason they are admissible to show the effects of a blow upon the head of the slave ; 
 though he is in general held not to be a competent witness against a white man. Biles 
 V. Holmes, 11 Ired. 16. The doctrine of the text was applied in a late case in the Court 
 of Appeals of New York, in an action for assault and battery, the plaintiff's complaint of 
 pain and soreness, made at the time of and soon after the injury, being held admissible. 
 Werely v. Persons, 28 N. Y. 344 ; Caldwell v. Murphy, 1 Kern. 416 ; Creed v. Hartman 
 8 Bosw. 123 ; Baker v. Griffin, 10 Bosw. 140.) 
 
 (2) See the observations of Copeley, A. G., in the Gardiner Peerage Case, p. 79. 
 (8) R. V. Johnson, 2 C. & K. 354. 
 
 Where a person that had been just wounded and was still bleeding, declared that the 
 defendant stabbed her, her declaration was received iu evidence, after her decease, as a 
 part of the res p'eato. The Commonwealth v. Pike, 3 Cush. 181. 
 
 (4) 6 East, 188. 
 
 When the declarations of a third person are made in the performance of an act which 
 is admissible in evidence, snch declarations may be proved as explanatory of the act. 
 Stewart v. Hanson, 85 Maine R. 506. If the act cannot bo proved, the explanations cannot 
 be given. Gilbert v. Gilbert, 22 Ala. 529. 
 
 A letter addressed to and found in the hands of a prisoner, unanswered, cannot be read 
 in evidence against him. The People v. Green, 1 Parker C. R. 11. But his examination 
 taken before the coroner is evidence against him (Hendi-ickson v. The People, Id. 406), if 
 he testifies voluntarily ; but not otherwise, 15 N. Y. State Rep. 384. 
 
SEC. I.] Hearsay as to fact of making Complaint. 149 
 
 plaintiff produced a surgeon, who had given a certificate upon which the 
 policy had been effected, to prove that the wife was in good health on a 
 particular day ; and he swore at the trial to his belief of the fact. On cross- 
 examination, he stated that his opinion was formed principally from her 
 answers given at the time. The defendant, in order to meet this evidence, 
 produced a witness who had been an intimate friend of the wife, and had 
 called accidentally upon her within a week after the day to which the certifi- 
 cate related, and found her in bed with the appearance of being ill ; and the 
 wife related to this witness that she had not been well from a time which 
 included the day specified in the certificate. This evidence of the defend- 
 ant's witness was allowed ; first, on the ground that it was the declaration 
 of a patient on the subject of her own health at the time ; and secondly, 
 that it was a species of cross-examination of the surgeon produced by the 
 plaintiff, who had formed his opinion principally in consequence of the wife's 
 answers. It is to be observed, however, that a part of the wife's conversa- 
 tion with the defendant's witness, which was material to the case, did not 
 relate to her cotemporary sensations, but to the state of her health at an 
 earlier period ; an objection which does not appear to have applied to the 
 answers given to the surgeon. 
 
 *184 * Medical evidence. In the Gardiner Peerage Case, where the inquiry 
 turned upon the ordinary period of gestation, the medical witnesses 
 were not allowed to state what they had been told by women whom they 
 had attended in their .confinement, as to the date of their conception. It 
 was held to be an objection to the evidence tendered, that it related to a 
 circumstance which took place before the medical men were consulted. (1) 
 
 Where a party who had been robbed went within a few hours after the 
 robbing to a constable and mentioned the name of the person who 
 had robbed him, Patteson, J., ruled(2) that the prosecutor might be asked 
 whether he named any person to the constable, but not what name he 
 mentioned ; but, he added, the constable might be asked whether in con- 
 sequence of the prosecutor mentioning a name to him he went in search of 
 any person, and, if he did, who that person was. However, upon a late 
 occasion,(3) Cresswell, J., commenting upon this case, said he was not con- 
 vinced as to the latter part of it, and that it seemed to him to be rather too 
 refined a distinction to prevent the name from being mentioned, yet 
 to permit a question to be asked whether, in consequence of what was said, 
 the witness apprehended a particular person. 
 
 In prosecutions for rape, or for assault with intent to commit a rape, 
 proof of the fact that the prosecutrix made a complaint soon after the 
 commission of the alleged crime, is admissible, and indeed is generally 
 required ; but the particulars of the complaint made cannot be admitted in 
 evidence as to the truth of her statement. (4) The particulars stated as to 
 the violence used, or the person who committed the violence, cannot be 
 received. The evidence should be confined to the bare proof of the fact 
 that a complaint of personal violence was made, and that an individual 
 was charged, without mentioning his name. (5) 
 
 (1) Gardiner Peerage Case, pp. 79, 136, 170. 
 (3) B. V. Wink, 6 C. & P. 397. 
 
 (3) In E. V. Osborne, 2 Car. & M. 634. 
 
 (4) R. v. Clarke, 2 Stark. B. 342 ; E. v. Walker, 2 Mo. & E. 313 ; E. v. Wink, 6 C. & P. 
 397 ; R. V. Megson, 9 C. & P. 420 ; E. v. Osborne, 3 Car. & M. 632 ; E. v. Mioholas, 3 C. & 
 K. 348. 
 
 (5) E. v. Osborne, vJt mpra. 
 
 The statements of the female, made immediately after the transaction, may be proved 
 to corroborate her testimony. Laughlin v. The State, 18 Ohio, 99.* So in a civil suit, the 
 declarations of b wife aoeompanjang the act of acknowledging a deed, made during 
 se&ral hours before and after the acknowledgment, objecting to it, are admissible as a 
 pairt of the transaction. Lynden v. Blythe, 16 Penn. State E. 532. See also ^den.v. . 
 
150 Declarations part of Hes Gestae. [ch. viii. 
 
 In the case of Thompson and Wife agt. Trevanion, (1) -what the 
 *185 *wife said immediately on receiving an injury was admitted in 
 
 evidence : And in The King agt. Foster, (2) in a prosecution for man- 
 slaughter, what the person killed had said immediately upon receiving the 
 fatal injury, as to the cause of the injury, was admitted as part of the res 
 
 Declarations, part of the res gestm. Verbal and written declarations are 
 often said to be admissible, as constituting a part of the res gestm. As such 
 they are most properly admissible when they accompany some act, the 
 nature, object, or motives of which are the subject of inquiry. In such cases, 
 words are receivable as original evidence, on the ground that what is said 
 at the time affords legitimate, if not the best, means of ascertaining the 
 character of such equivocal acts as admit of explanation from those indica- 
 tions of the mind which language affords. For where words or writings 
 accompany an act, or where they indicate the state of a person's feelings or 
 bodily sufferings, they derive their credit from the surrounding circum- 
 stances, and not from the bare expressions of the declarant. And the 
 language of persons at the time of their doing a particular act, in the same 
 manner as their demeanor or gesture, is more likely to be a true disclosure 
 of what was really passijag in their minds, than their subsequent statements 
 as to their intentions, even if such statements would not be excluded on 
 other grounds. (3) 
 
 Peters, 15 Barb. 560. To render the declarations a part of the tm gestm they must be 
 cotemporaneous with the maiii fact. Mitehmn v. The State, 11 Geo. 615. 
 
 (1) Skinn. 403, cit. 6 East,. 188. 
 
 The declarations of a person injured by stabbing, made while yet bleeding, are admis- 
 sible after her death. The Commonwealth v. Pike, 3 Cush. 181. And the declarations of 
 the person inflicting a wound, made directly after it, are admissible. Mitchum v. The 
 State, supra. 
 
 (a) 6 C. & P. 325. 
 
 (3) Note 80. — To be a part of the res gestm, the declarations miist have been made at the 
 time of the act done which they are supposed to characterize, and well calculated to unfold 
 the nature and quality of the facts they were intended to explain, and so to harmonize 
 with them as obviously to constitute one transaction. Per Hosmer, C. J., in Enos v. Tut- 
 tle, 3 Conn. Bep. 350. ' Suppose, for instance, that goods consigned by A. to B. are injured 
 by the defendant whilst they are in the hands of the carrier, in an action for the wrong, 
 brought either by A. or B., according to the circumstances, it would be competent to either 
 of them, being plaintiff, to establish his right of property in the goods, by proof of such an 
 agreement between them as either left the right of property and action in himself, or 
 vested it in him by the delivery to the carrier. This would be, it is true, nothing more 
 than an agreement between A. and B., to which the defendant was not privy ; but it would 
 be evidence against him, not as concluding any right of his without his assent, but as 
 affecting the nature of the transaction itself, and showing to whom the injury was done. 
 1 Stark. Ev. 53. See per Sutherland, J., in Murry v. Bethune, 1 Wend. Rep. 196. In the 
 example put, it may be material to see the letters which had passed between A. and B., 
 the direction of A. to his clerks or to the carrier, from which to infer the terms of the 
 agreement and the identity and destination of the goods. In a late case the plaintiff sued 
 out a foreign attachment against B., summoning the defendant as garnishee. The sum- 
 mons was served in November, 1838. On the 31st of the previous July, the garnishee had 
 thirty barrels of B.'s gin in his hands, which, by letter of that date, he was firected by B. 
 to hold, with the proceeds of that sold, if any, subject to the order of G. ; and, by letter of 
 the August following, the garnishee had acknowledged that he held the gin and proceeds 
 on account of G. These letters were at first excluded as not being evidence of the garni- 
 shee, under the notion that they were naked declarations ; but on appeal, the Supreme 
 Court held them clearly admissible, as evidence of the agreement by which the gin was 
 transferred to G. Cox v. Gordon, 3 Dev. 513. See per O'Neall, J., in Jones v. M'Neil, 3 
 Bail. Kep. 471. On the other hand, the holder of a check went into the bank, and when 
 he came 9))t, said he had demanded its payment. This declaration was held inadmissiblo 
 to prove f), Remand, a{9 being no part of the res gestm. The demand was the fact to be 
 proved. Bypi^n v. Iijisk, 4 Yerg. 310. 
 
 It is dilflcvilt, however, as remarked by Shaw, C. J., in Allen v. Duncan (11 Pick. 809, 
 310), to lay down any precise general rule as to the cases in which declarations aro 
 admissible as part of the res gfistm. And see Pool v. Bridges, 4 Pick. 878. We have 
 adopted the rule of Hosmer, Cb. J., as the best. It is, perhaps, sufficiently comprehensive 
 
SEC. I.J Declarations part of Res Gestae. 151 
 
 *186 *Thiis, in an action on the case for fraudulently representing the 
 
 solvency of a person, whereby the plaintiffs trusted him with goods, 
 
 (1) their declarations at the time they were applied to for the goods are 
 
 admissible, to show that they gave trust in consequence of the 
 
 *187 representation. A letter, *inclosing a promissory note, has been 
 
 admitted to show for what purpose it was sent. (2) 
 
 In an action for'' criminal conversation, where the defense was that the 
 
 plaintiff had connived at his wife's elopement, evidence was received, on 
 
 the part of the plaintiff, of the wife's declarations as to her intentions and 
 
 purposes in going. (3) And in Aveson v. Lord Kinnaird,(4) Lord 'Silen- 
 
 But after we have the rule, it will be found, like all other legal generalities, to present 
 the main difficulties in its application. As in other instances, so in this, we shall find 
 ourselves in the way of useful instruction, only by looking at the principle, and then 
 proceeding to examine its experimental operations in the hands of the learned judges; 
 which we shall endeavor to do in several of the ensuing notes. 
 
 (The following are some of the recent authorities, explanatory of the rule : Russell v. 
 Frisbie, ID Cdnn. R. 205 ; Price v. Powell, 3 Comst. 322 ; Davis v. Newkirk, 5 Denio, 92 ; 
 Rowlac V. White, 9 Ired. 63 ; Jones v. Jones, 3 Strobh. 315 ; Wheaton v. Weld, 9 Humph. 
 773 ; Parker v. The State, 8 Blackf 293 ; Noyes v. Ward, 19 Conn. R. 350 ; Humphries-v. 
 McGraw, 4 Eng. 91 ; Redden v. Sprnance, 4 Barring. 417 ; Wilson v. Simpson, 9 How. 
 (U. S.) 109 ; Handley v. Call, 30 Maine, 39 ; Kidder v. Lovell, 14 Penn. State R. 314 ; 
 Smith V. Powers, 15 N. Hamp. 546 ; Porter v. Ferguson, 4 Florida, 103 ; Ogden v. Peters, 
 15 Barb. 560; Stewart v. Hanson, 35 Maine, 506; Handy v. Johnson, 5 Md. 450; Hooper 
 V. Edwards, 25 Ala. !)28.) 
 
 Note 80 a. — See an instance which we put ante, of directions by a consignor of goods. 
 Such declarations are, as we shall notice more at large in a subsequent note, evidence in 
 favor of the party who makes them. Where, in a suit on a policy of insurance upon a 
 ship, it becomes material to inquire what instructions the plaintiff gave to the master, he 
 may give his own written instructions in evidence, to limit the power of the master. 
 Story V. Strettel, 1 Dall. 10. Otherwise, if his letters or instructions are not a part of the 
 resgestm. Fowle v. Stevenson, 1 John. Cas. 110; Champlin v. Tilley, 3 Day, 303, 306. 
 And his declarations, without being a part of the re» geatm, are not evidence for him., 
 even to show his insanity. State v. Scott, Ruffin, 24 ; 1 Hawks, 24 ; S. C, ante, note 79. 
 
 In a mercantile dispute, the plaintiffs were allowed to prove a letter of instructions; 
 which they had written to the master of the vessel in respect to which the controversy 
 arose. It does not appear on what ground the letter was received. The plaintiffs' counsel 
 put it, on the ground that it was written before the controversy arose. Most likely it 
 related to the powers of the master derived from the plaintiffs, in respect to the matter in 
 litigation ; and so a part of the res gestes. M'Clenachan et al. v. M'Carty, 2 Dall. 51.. 
 See, also, Ship Portland v. Lewis, stated ^os<, note 81. 
 
 (1) Fellows V. Williamson, M. & M. 306. And see Moore v. Strong, 1 N. C. 441 ; 
 Shrewsbury v. Blount, 3 M. & G. 503. 
 
 Between the.jiarties to the suit, the declarations of the opposite party may be given as-- 
 evidence of the contract between them, or to show the amount due. Reed v. Reed, 13 
 Penn-. State R. 117. Such declarations are in the nature of an admission; and though, 
 made by an agent, acting within the scope of his authority, they bind the principal. The= 
 State V. Farish, 23 Mississippi Rep. (1 Cush.) 483. But a nominal plaintiff, having no 
 interest in the suit, cannot bind the real party by his admissions. Dazey v. Mills, 5 
 Oilman, 67. And the declarations of a person who is not a party to the suit cannot be 
 given in evidence, unless they are really a part of the res gestae, or accompany and serve 
 to qualify the transaction in -question. Wads v. Banks, 14 N. Hamp. 101. 
 
 (3) Bruce v. Hurley, 1 Stark. R. 24. 
 (8) Hoare v. Allen, 3 Esp. 376. 
 
 Note 80 6. — A husband, in defending an action against him for the board, &o., of hi»- 
 wife, may show her declaration, confessing adultery, made immediately before he turned 
 her off; and also letters from men found about that time in her desk. Walton v. Green, 
 1 Carr. & Payne, 631. He may also show her letters, to rebut the allegation of cruel treat- 
 ment ; but if they are not postmarked, the time must be fixed by proof, and the dates are 
 not proof; for on a reconciliation, they might combine to defeat the plaintiff. Houliston 
 v. Smith, 3 Carr. & Payne, 23. In an action against the defendant and his wife, for the 
 act of the latter in dissuading the plaintiff's wife to live with him, declarations made by 
 the defendant's wife in the presence of the plaintiff's having a tendency to such dis- 
 suasion, are admissible against the defendant. Park v. Hopkins et ux., 3 Bail. Rep. 408. 
 
 (4) 6 East, 188. And see Walton v. (Jreen, 1 C. & P. 621, as to a confession by a wife 
 of adultery immediately previous to being turned out of doors ; and letters found in her 
 writing desk. 
 
 But where the husband brings an action for conspiracy to entice his wife away, her 
 
152 Declarations part of Res Gestae. [ch. vin. 
 
 borouo-h observed, that if a wife, upon quitting her husband's home, declared 
 at the" time that she fled from immediate terror of personal violence, he 
 should admit the evidence ; though not if it were a collateral declaration as 
 to some matter which happened at another time. 
 
 A strong exemplification of this principle was afibrded in the case of 
 Perkins v. Vaughan,(l) in an action for false imprisonment. The defendant 
 justified on the ground that the plaintiff had forged the acceptance of A. B. 
 to a bill of exchange. The plaintiff" called a witness who proved that on 
 the day after the dishonor of the bill, he went in company with the plaintiff 
 and the defendant to A. B., when the defendant reminded the latter, that, 
 on the presentment of the bill for payment, he had stated that the plaintiff 
 had forged his acceptance, and that A. B. neither admitted nor denied that 
 he had made such a statement. ^The defendant then called a witness, who 
 stated that A. B., when he dishonored the bill, did say, that the acceptance 
 was forged by the plaintiff; and the court held, that this statement was 
 admissible in evidence, in mitigation of damages. Tindal, C. J., said, 
 " Even if the inquiry before us had depended on the determination of the 
 point, whether evidence, on the part of the defendant, of the dishonor 
 of the bill, and of the circumstances attending such dishonor, was rele- 
 vant to the question, then before the jury, of the forgery of the (2) 
 *188 *acceptance by the plaintiff, it would have been difficult altogether 
 to exclude such evidence on the score of its irrelevancy ; but, upon 
 the trial, the plaintiff had made it part of his own evidence. 
 
 In an action against a sheriff for a false return, (3) where the defense was 
 a fraudulent bill of sale, declarations by the party executing the bill of 
 sale, made by him at the time of the execution, were held to be admissible, 
 but not those made at another time. Where a trader, being in embarrassed 
 circumstances, executed an assignment for the benefit of his creditors, it 
 was held, in an action after his death against the assignee, treating him as 
 executor de son tort, that a list of creditors made out about the time of the 
 execution of the assignment, by the direction of the assignor, was evidence 
 as part of the transaction for the purpose of disproving fraud. (4) 
 
 declarations as to former differences are not admissible, tliougli made only the day before 
 :Blie left. Kidder v. Lovell, 14 Penn. State R. 214. 
 
 (1) 4 M. & G. 088. See also E. v. Osborne, Car. & M. 622. 
 
 (2) These words in italics are omitted in the report ; but they seem necessary for the 
 fflense of the passage. 
 
 ([Declaratiions that accompany the act done, and qualify it, are admissible ; thus, where 
 ;a person has possession of a bill, and assigns it in the name of the payee, as his agent ; 
 his declarations made at the time of assignment are admissible, while his declarations 
 ■made subsequently are mere hearsay. Kichardson v. Cots, 10 Humph. 138 ; Garland v. 
 Harrison, 17 Mis. 282. See also Cooley v. Norton, 4 Gush. 93. So also, the declarations of 
 ithe party in possession of personal property in regard to the title to it, made in the act 
 .of .bailing it to another for hire, are admissible in evidence in an action by the owner to 
 Tecover the property, the declarations being to the effect that the property belonged to the 
 plaintiffs. Barnes v. Mobley, 21 Ala. 232. So, where the character of plaintiff's posses- 
 ision is in question, her declarations made in respect to the possession are admissible. 
 Nelson v. Iverson, 24 Ala. 9.) 
 
 ffl) Phillips V. Eamer, 1 Esp. 357. 
 
 rt) Lewis V. Rogers, 1 C, M. & R. 48. For other examples of this principle, see Penn 
 V. Bcholoy (5 Esp. 243), as to an affidavit to explain an execution on a judgment ; Bebb v. 
 'Thomas (2 W. Bl. 1043). as to cotemporary declarations, explaining the equivocal act 
 lof canceling a wiU; CoUeuridge v. Farquarson (1 Stark. R. 259), as to a distinction 
 T)etween an entry in an account book made after the transaction, and » cotemporaneous 
 i«ntry ; Prideaux v. Collier (2 Stark. R. 57), as to declarations by a drawee on presentment 
 of a bill ; Ryle v. Haggle (1 Jac. & W. 234), for declarations as to property being parted 
 with by way of gift. 
 
 (So, declarations made on a sale of land, may be proved in an action to recover back the 
 land on account of fraud in the sale, though made by one of the two parties to the fraud 
 in the absence of the other. Jackson v. Summerville, 13 Penn. State R. 359. See Carr 
 V. Gale^ 3 W. & M. 38. In general the declarations of a party, made subsequent to the 
 
SEC. I.] Declarations part of JRes GestcB. 153 
 
 execution of an Instrument, are inadmissible to defeat or to support it, Kittles v. Kittles, 
 4 Rich. 432 ; Gleu v. Grover, 3 Md. 313 ; Garland v. Harrison, mpra. 
 
 If, in the negotiation of a sale of lands lying in another state, the vendor makes 
 positive statements so minutely descriptive of the land as to import a knowledge of 
 the faots, thereby inducing the purchaser to act upon his representations, it is not 
 material whether he knew the statements so made to be false, or makes them without 
 knowing whether they are true or false ; making misrepresentations of the facts, he is 
 liable therefor. Bennett v. Judson, 21 N. Y. 338 ; Stone v. Denney, 4 Mete. 161. An action 
 lies for a fraudulent representation, made on the leasing of property, as to the territorial 
 extent of the premises, a water lot and wharf Whitney v. Allaire, 1 Comet. BOS. The 
 lessee may show that the agents of the lessor falsely represented the premises for which 
 he was negotiating a lease to embrace the entire slip, a ferry slip in New York, while in 
 fact they embraced only a part of it ; that if the representations had been true, the lease 
 would have covered the slip ; and may recover the damages sustained by such false repre- 
 sentations. Sharp V. Mayor, &c., of New York, 40 Barb. 356. So the purchaser or party 
 entering into an agreement (among other things and with other persons) to purchase real 
 estate, may show that he was induced to enter into the contract by fraudulent and false 
 representations as to the cost of the property, and the location and iialue thereof made by 
 an agent. Such proof does not go to vary the terms or conditions of the contract, but to 
 show that the party signing it was induced to do so through fraudulent representations, 
 Sandford v. Handy, 33 Wend. 260. Where a deed of lands is given upon condition that 
 the grantee shall maintain and support the grantors during their natural lives in a man- 
 ner specified, such support and maintenance being the consideration of the deed, the 
 declarations of the grantor who was an original party to the record, his heirs having been 
 substituted as plaintiffe after his death, were held admissible as a part of the res gestas, as 
 tending to establish the consideration for the deed by showing a fulfillment of the con- 
 dition. Spaulding v. Hallenbeck, 39 Barb. 79, 84. (The consideration of the deed, which 
 was equivalent to a life annuity, was adjudged one of value. S. ('., 30 Barb. 293.) Where 
 in a written application for insurance, the building was described as a stone dwelling 
 house, without any reference to a wooden kitchen which was attached to and formed a 
 part of the establishment, and the application referred to the by-laws of the company, 
 and by its terms provided that a misrepresentation or suppression of material facts should 
 distroy any claim for loss or damage', it was held that the misdescription was fatal to 
 plaintiff's claim for loss by fire, the application being a warranty forming a part of 
 the contract. Chase v. Hamilton Ins. Co., 30 N. Y. 52. The company's knowledge of the 
 facts through its agent does not relieve the assured from the consequences of the breach. 
 Jenning v. Chenango M. Ins. Co., 3 Denio, 75 ; Brown v. Cattaraugus, M. Ins. Co., 18. NY. 
 887. Bat if the agent makes a survey and fills up the application which is signed by the 
 applicant without examination, the insurer will not be allowed to show that the appli- 
 cation was false. Plumb v. Same Defendant, 18 N. Y. 392. Fonner insurances by the 
 defendant of the same building may be proved as tending to show that defendant knew 
 the purposes for which the premises were used. Mayor, &c., of N. Y. v. Exchange Fire 
 Ins. Co., 9 Bosw. 434.) 
 
 No. 81. — (The following note may serve to show more at large the application of the 
 rule, admitting hearsay evidence as a part of the res gestae. See rule as laid down by Ch. 
 J. Hosmer in Enos v. Tuttle, 3 Conn. K. 250.) 
 
 On a question whether a deputy sheriff acted negligently or unfaithfully in not making 
 an arrest of one S., evidence was received that he inquired at S.'s place of residence, called 
 at his shop, inquired of a man and boy, who told him S. was at his house, where he wei t 
 and inquired for him of a woman whom he learned was S.'s wife, mentioning to her h's 
 business. She told him that her husband was then at work at the Bhop. 'The evidence 
 of these answers was objected to as hearsay, and excluded ; but a new trial was granted. 
 The court said it was a material point whether the officer made due search and inquiry. 
 It was his duty to inquire at all proper places ; and search wherever it was probable S. 
 would be found. .To show this, it was necessary he should state the inquiries and the 
 answers made; and that he had made search accordingly. Such answers are part of the 
 transaction. They are facts, and do not stand on the footing of hearsay evidence. 
 *189 Phelps v. Foot, I Conn. Rep. 387, and md. Ponsonby v. Debaillon et al., 6 Mart. *Lou. 
 Hep. 238, 844, 856. Trover for wool, yarn and hocking. The defendant, as deputy 
 sheriff seized it under an execution against S. as his property. The plaintiff had delivered 
 wool to S. to be manufactured ; and before the seizure, on inquiring of S. at his factory as 
 to his progress, S. showed the plaintiff the wool, yarn and booking, which he said were the 
 plaintiff's, who then examined them. S. afterwards absconded, and the goods were seized. 
 These declarations of S. were offered in evidence, and held admissible. Per Cur. As a 
 mere declaration, this is not evidence ; for thoiigh S. is out of the country, his sayings 
 should be rejected as hearsay. It is a difficult case of the res gestw. The property was in 
 possession. of S., and difficult to be distinguished from other property of the same kind 
 also in his possession. If the saying had been without the parties being engaged in any 
 act, it would have been mere hearsay. But here was an act. It was like labeling the 
 goods with the owner's name. Showing the property to the plaintiff as his wool, on his 
 Vol. L 20 
 
154 Declarations part of Res Gestos. [ch. vni. 
 
 going and inquiring, in difFereut stages of process, was an act or transaction ; and is like 
 an actual separation from the common mass. Pool v. Bridges, 4 Pick. 378. Note. This 
 was moreover a plain case against the defendant, as claiming under S. within the Ivat v. 
 Finch (1 Taunt. 141), and numerous other cases, both in the English and American courts. 
 See note 6, and the. text. Although, on the trial of an indictment for manslaU|ghter, 
 malice prepense cannot be shown on the part of the prosecution, yet declarations made by 
 the prisoner, at the commencement of, and during the fatal ajBTray, as well as immediately 
 before and after it, must be received as constituting a part of the res gest(^ ; and this, 
 although they may incidentally tend to show malice. The State v. Powell, 2 Halst. 244. 
 In this case, the parties being shown together quarreling immediately before the fatal 
 blow, a witness was allowed to state that, in the course of the quarrel, the prisoner threat- 
 ened that he would kill the deceased before he went asleep. Indeed, malice may be quite 
 material; for should plain murder be made out, the court might, in its discretion, dis- 
 charge the jury, and order a higher indictment to be preferred. In an action for a libel, 
 what a third "person told the defendant as to its truth before the defendant published the 
 libel, was offered in proof to mitigate damages, and seems to have been held receivabl e. 
 Coleman v. Southwick, 9 John. Eep. 45. See Kennedy v. Gregory, 1 Binn. 85, and Mor- 
 rison v. Duane, Id. 90, note S. P. In a settlemeht cause, on a question whether C, the 
 grandfather, had made a gift of Bess, a slave, to his grand-daughter, it was proved by 
 the defendants, that he requested her to be brought up so as to be useful to his grand- 
 daughter when married, to whom he intended to give, Bess, and that F., who married the 
 grand-daughter, came and took Bess, saying that she had been given to his wife by her 
 grandfather. Held admissible, as part of the res geit<B. The court said the change of 
 possession was established. The declarations of the parties went to show the intent with 
 which the change was made. This is not. within the notion of hearsay evidence. Mill- 
 ford V. Billingham, 16 Ma,ss, Eep. 108. On aevrefadai, to enforce a recognizance against 
 a house on which, with other real estate, it had been charged by K., the cognizor, the 
 defendant, claiming under K., sought to raise an inference of payment from the fact of 
 the oeatwi que trust of the plaintiff having released some of the land charged ; and especi- 
 ally a tract sold by K. to Fisher. In reply to this, the plaintiff offered K.'s letter in evidence, 
 requesting such release, on the ground th8,t there was other property out of which satis- 
 faction could be obtained. This was objected to as res inter aMos acta, but held admissible, 
 as completely repelling the inference of payment, so far as it was derivable from the cir- 
 cumstances of the release. Eeigart v. EUmaker, 10 Serg. & Eawle, 27. Ejectment for 
 land, brought by the heirs of S., on the ground that his administrator had fraudulently 
 sold them for his own benefit, under a decree of the Orphan's Court. They were bid in 
 by one Selin, under whom the defendants claimed. They offered to prove that Selin 
 said at and just before the sale, that he would not give more than eight dollars per acre. 
 Held, that the declaration should be confined to the time of the sale. But the court received, 
 as evidence for the defendants, his offer after the sale, to take others in as partners in the 
 purchase, at the price he had given. This they held tended to rebut the inference of 
 fraud sought to be made from an imder price. Selin v. Snyder, 11 Serg. & Eawle, 319, 
 323. An act of cancellation by the testator in respect to his will, though slight in itself, 
 may be shown by his declaration at the time to be a revocation. Such declarations are a 
 part of the res gestm. Said in Dan v. Brown, 4 Cowen's Eep. 483, 490, per Woodworth, 
 J. The plaintiff sought, by process of foreign attachment, to charge defendant as the 
 debtor of T.; and proved that the defendant gave his note to B., since deceased. Then, to 
 
 show that these notes were assigned by B. to T., the plaintiff was allowed to use a 
 *190 receipt found among the papers of B., by which T. *acknowledged the assignment. 
 
 Beach v. Swift, 2 Conn. Eep. 269. In an action against a surety on a bond for 
 mpnejr, he insisted that he was discharged by the plaintiff 's laches. The plaintiff, to show 
 that the surety was indemnified, offered to prove mat his principal had delivered a note to 
 a witness, telbng Jiim, it was for Ms surety, and that it was to secure him ; and that the 
 note was delivered to the surety, who collected it. The declarations of the principal 
 were holden admissible in evidence as part of the res gestm. Deardorf v, Hildebrand, 3 
 Eawle, 226. The prosecutor, on his return from search, declared himself satisfied of the 
 prisoner's innocence, having found his watch in his waistcoat pocket ; and directed the dri 
 ver to turn about. The prisoner being accused and on trial, and the prosecutor absent, 
 his declarations were received for the prisoner as a part of the res gestai. Kelly's Case, 3 
 C. H. Eeo. 153, before Colden, Mayor. And see 8 M'Cord, 232 note. In an action for 
 breach of a marriage promise, the defendant may show by a third person, in order to 
 mitigate damages, that his father declared to him his dislike of the match, on account of 
 the plaintiff's bad character. It appeared that the father was an incompetent witness, 
 having employed the defendant's attorney. Irving v. Greenwood, 1 Carr. & Payne, 350. 
 In a writ of entry against a grantee of S., which grantee had notice of a prior deed from 
 S., under which the demandant claimed, it was alleged that S. had fraudulently obtained 
 and suppressed the first deed ; and to show this, it was in proof that he obtained access 
 to the desk of the first grantee, under pretense of searching for other papers. Held, that 
 his declarations, while at the desk, going to identify the deed as one of the papers which 
 he took away, and to show its contents, were admissible in evidence as part of the res 
 
SBC. I.] Declarations part of Hes Gestce. 155 
 
 gestcB against the tenant. Davis v. Spooner, 3 Pick. 384. On a question whether the 
 plaintiff, who exchanged his horse for a horse of A., who purchased of B., an insolvent, 
 to defraud the creditors of the latter, had knowledge of the fraud at the time of the 
 exchange, proof of B.'s declarations, made hefore he failed and before the sale to A., that 
 B. and A. were anxious to procure the plaintiff's horse, was held admissible for the plaint- 
 iff ; and that this might be proved, either hj B. himself, or any other person who heard 
 it. X, Rice V. Bancroft, 11 Pick. 469. Case for obstructing «, stream running through the 
 defendant's land to an ancient mill of the plaintiff. The plaintiff claimed the mill, and 
 exclusive use of the stream, under W., the defendant claimed a few acres on the stream 
 above, from A., who claimed under the same W. After W. had sold the land to A., and 
 while A. was in possession, W. claimed that all the water of the stream belonged to the 
 mill, and forbid A. to divert any part, "This was offered as evidence against the defend- 
 ant, and held admissible. Strickler v. Todd, 10 Serg. & Rawle, 63, 73, 74. Several returns 
 of nuUa boTia, on fi. fa». against one Elliott, were received as evidence of his insolvency, in 
 an action between third persons. Bay v. Freazer, 1 Bay, 66, 69. 
 
 The cases cited so far, and indeed all those we shall bring forward in this note, tend to 
 present the various connections in which these declarations are admissible. While still 
 pursuing the same view, it is proper to observe, that in their very nature they must be 
 evidence, though emanating from the party himself who seeks to use them in his own 
 favor. See, also, to the general proposition, Ponsonby v. Debaillon, 6 Mart. Lou. Kep. 238. 
 A constable being indicted for a forcible entry, he having a search warrant, and searching 
 the house, his counsel were allowed to ask a witness what he said at the time. Rex v. 
 Smith, 5 Carr. & Payne, 201. In trover for a fifty dollar bank note, the plaintiff alleged 
 he had lost the note ; proved he had it in his possession ; and that it was afterwards in 
 possession of the defendant. The plaintiff gave no evidence of the loss except his own 
 declarations ; and that the defendant had been seen hunting for it. Verdict for the plaint, 
 iff. On motion for a new trial, the following question alone was put to the court : Was it 
 proper to receive the declarations of the plaintiff, connected with other circumstances, to 
 prove the loss ? The court thought it was ; as if the party was seen with his friends and 
 servants diligently searching the road. They said, here the circumstances do not appear ; 
 and they considered the question as embracing possible circumstmces. They said, in all 
 cases where a person's acts are evidence for him, his declarations in relation to such acta 
 must necessarily be admitted ; as in the case of a claim, demand or tender. In the first 
 two cases it is the declaration which constitutes the act ; and in the latter they form part 
 of it. Schenck v. Hutcheson, 2 N. Car. Law Repos., 433. In an action by the claimants 
 against the defendant for certain prize property deposited in his hands as the public 
 agent of the United States abroad, held, that his letters written as such agent in respect 
 to the property, it appearing to have been lawfully deposited vsdth him, were a part of the 
 
 res gesta, and as such evidence for him. He was to remain in possession till Congress 
 *191 *should instruct him how to act. He was a public agent ; " and his cotemporaneous 
 
 correspondence on the subject in that character, with the American government, was 
 certainly proper evidence to show the original nature and complexion of the facts in contro- 
 versy." Patterson, J., Bingham v. Cabbot, 3 Dall. 19, 39. On trial for a riot, in destroying a 
 threshing machine, the defendant's witness wjis allowed to state that he and the defendant 
 were compelled to join the mob ; but they had before agreed to run away the first chance^ 
 which they both did within ten minutes. Rex v. Crutchley, 5 Carr. & Payne, 133, and see 
 note a to that case. On a trial for murder, the declaration of the prisoner, made antece- 
 dent to the fact, tending to explain and reconcile his conduct; was receivwi in evidence. 
 Particulars are not given by the case, Maryland v. Ridgley, 2 Har. & M'Henry, 120. The 
 defendant gratuitously received of the plaintiff, in Georgetown, District of Columbia, in a 
 letter to S., at Athens (Bradford county, Pennsylvania), $250, in bank bills, to be delivered 
 to S. ; but the bills were not delivered. In defense to an action for the loss, a valise which 
 the defendant had borrowed for his journey, then whole, was proved to have been cut 
 while in his possession. On his way to Athens, he stopped at an inn in Philadelphia ; and 
 one or two days after he left there, he wrote to his host that he had lost a sum of money ; wrote 
 the same thing to S. A., who asked the host about it. The day of receiving the letter, or 
 the next, the defendant came to his host's house, stated that he been robbed of a sum of 
 money ; and that he thought it had been stolen at the host's house, till he reached New 
 York ; that he should not feel so unpleasantly if it was his own, but it had been sent by 
 another man. He appeared much concerned at the loss, and was anxious to take all means 
 to trace the money. He was not positive l>e had lost the money at his host's house ; but 
 seemed to be of that opinion. He said he had not opened his baggage from the time ho 
 left that house till he arrived in New York. The letter gave an opinion that the money 
 was stolen at the host's house, by servants, on Thursday evening or Friday morning ; and 
 stated that before the defendant reached there, the valise was not long enough out of his 
 possession for any one to have stolen the money ; and it seemed impossible it should have 
 been done on board the boat, from its place there (stating where and near whom it was). 
 The letter requested a look out, and information. The defendant made immediate and 
 diligent inquiry on board the boat in which he sailed for New Yoi-k ; and a statement of 
 the loss, and his conjecture as to the manner of it, the time when, he discovered it, &e. 
 
156 Declarations part of Mes Gestoe. [ch. viir. 
 
 All these acts and declarations, with the letter, were offered in evidence for the defendant, 
 together with what he told S. on his return to Athens, &c. The whole were excluded as 
 inadmissible, and a verdict found for the plaintiff. On error, the Supreme Court held 
 that the evidence was admissible. The court say the action was for negligence. The 
 declaration did not impute embezzlement to the defendant. Being a voluntary bailee, he 
 was liable for gross negligence only, dolo prtxdrmia. He was bound to that care only 
 which the most inattentive take of their own concerns. He might, therefore, show how he 
 conducted himself on his journey, what care he took of this and his own property. " Evi- 
 dence is constantly accommodating itself to the state of society and the concerns of the 
 world ; and, therefore, must accommodate itself to the altered mode of traveling by stage 
 coaches and steamboats, instead of on horseback or in private carriages. Travelers are 
 constantly more exposed to secret stealth in a crowded stage or in a steamboat crowded 
 with passengers, where the traveler cannot keep his eye on his own baggage. Inns in 
 our large cities are generally filled with strangers, and with the utmost circumspection 
 he is certainly more exposed to these risks. To preclude a gratuitous bailee from showing 
 how he conducted liimself, and what care he took of his own property, would be shutting 
 out all defense. The evidence offered was of a time directly after the receipt of the 
 letter. If he had been silent and remained with his arms folded, this would have been 
 evidence against him. The evidence offered is of acts and circumstances immediately 
 preceding and succeeding the theft ; concurrent acts and declarations ; not those which 
 are unknown or not commenced until after a lapse of time and suspicion afloat. As all 
 were before any claim made by S., they were evidence of the whole res gestce, the entire 
 conduct, immediate declaration, and hot pursuit of the defendant." Tompkins v. Salt- 
 marsh, 14 Serg. & Rawle, 275. On a, question whether a vendor of horses had sold in 
 fraud of his creditors, directions given by the vendee (the plaintiff) to the vendor soon 
 after the sale, to take the horses to an innkeeper to be taken care of at the expense of 
 the plaintiff, who promised the innkeeper to pay, were held admissible for the plaintiff as 
 part of the res gestce. Boyden v. Moore, 11 Kck. Rep. 363. In trover for negroes, the 
 
 plaintiff proved that he had married the defendant's daughter : and that some time 
 *193 after the marriage, the *defendant had sent the negroes to the plaintiff, who had 
 
 possessed them two or three years, the neighbors considering them as his. The 
 defendant proved that when the negroes were sent, he called on his son and family to 
 witness that he had sent them as a loan. The judge charged that his declarations should 
 have no weight ; and the verdict was for the plaintiff. But the court granted a new trial 
 on this ground ; holding that the defendant's declarations made a part of the transaction. 
 Banks ads. Hatton, 1 Nott & M'Cord, 331. On a petition of freedom by the slaves of one 
 who fled from the massacre of St. Domingo, bringing the petitioners along with her, on 
 the ground that she was an importer of slaves, coming to reside in the state, where she 
 had continued sixteen years ; held, that her uniform declarations of an intention to return 
 to St. Domingo as soon as circumstances would admit, were receivable in evidence against 
 the petitioners ; being, with the fact that she had never been naturalized, a part of the 
 res gestae, and both together conclusive that she was to be regarded merely as a sojoui-ner ; 
 not a resident. Baptiste et al. v. Volubrun, 5 Har. & John. 86. 
 
 In assumpsit against the bank on their certain notes alleged to have been destroyed by 
 fire, with a steamboat where it was alleged they had been placed for transportation, a 
 witness was allowed to testify that in the evening of the 4th September, he was at the 
 plaintiff's store, who showed him a large packet addressed to the cashier of the Platts- 
 burgh Bank ; aifd said it contained $800, which he was about to send in the steamboat, 
 which was afterwards burnt, in the course of the same ■ night. Ross v. The Bank of 
 Burlington, 1 Aik. 43. In a statute proceeding to recover for labor done on the respon- 
 dent's ship, he insisted that the libelant had been paid by a note of W. & C. former 
 owners. The libelant insisted that the note was not paid, but discounted and renewed ; 
 and the money went to W. & C. He proved that W. & C.'s clerk requested him to renew 
 the note, which he did, giving his own clerk a check for the money payable to W. & C, 
 but ordering him not to deliver the check till he saw the note had been discounted at the 
 bank. This was objected to as hearsay, and as a declaration by the libelant in his own 
 favor ; but held admissible. The clerk's sayings were a part of his acts as agent for W. 
 & C. ; and as to the libelant's directiohs to his own clerk, these were a part of the same 
 transaction, and so admissible. Ship Portland v. Lewis, 3 Serg. & Rawle, 197, 203. The 
 person in possession claiming title, and forbidding a claimant's entry in order to a survey, 
 was recognized as evidence in his own favor of an advei-se holding. Per Jones, Chancellor, 
 in La Frorabois v. Jackson ex dem. Smith, 8 Cowen's Rep. 589. To prove that the defend- 
 ant had paid the plaintiff's intestate a debt, he showed that the intestate was seen 
 coming in a direction from his (the defendant's) store by the witness, who lived within 80 
 or 40 yards of the store ; that the intestate paid the witness money, and the witness 
 immediately paid the same money to the defendant, who said, " you got that money from 
 Darby," (the intestate.) Held admissible as one circumstance to show the payment ; viz : 
 to infer from his knowledge of the bills that ho had just paid them to the intestate. The 
 court say his declarations were admissible to show that he knew the bank bills and that 
 they had been in Darby's possession. Certain facts can only be proved by the declarations 
 
SEC. I.] Declarations part of Bes GestoB. 157 
 
 of a party ; e. g. to prove a man knows the multiplication table, his repeating it is the 
 only evidence. Darby's Adm'r and Adm'x v. Rice, 3 Nott & McCord, 596, 597. In eject- 
 ment, the plaintiff claimed that the defendant's mortgage was taken from his father to 
 defraud creditors, and (inter alia) that the defendant, when he took the mortgage, had 
 not given the mortgagor certain credits. To repel this allegation, the defendant offered 
 his account book, wherein the credits were contained in an account purporting to bo 
 Btated and signed by the parties, mortgagor and mortgagee. The court held the book j 
 almissible. Cook v. Swan, 5 Conn. Rep. 141. In an action on a bond givtn on suing out 
 an attachment against an absconding debtor, for damages, grounded partly on malice, 
 the inquiries by the defendants after the plaintiff, and the answers of third persons as to 
 the plaintiff's absence and its cause, are admissible for the defendants without producing 
 those persons. Ponsonby v. Debaillon et al., 6 Mart. Lou. R§p. (N. S.) 238, 346, 247. A 
 prisoner's declarations at the time he passes counterfeit money, are admissible in his favor 
 as a part of the rea gesta; otherwise if made afterwards. Robetailles' Cases, 5 C. H. Kec. 
 171, 173. A creditor's entry in his book of credit, is evidence of an appropriation of 
 payment. Cole v. Trull, 9 Pickering's Reports, 225, 337. Indeed, such an entry is the 
 res gestCB itself. See Vol. II, and 9 Cowen's Reports, 773, et seq. note. That his indorse- 
 ment or a credit given, is sometimes evidence to take his debt out of the Statute of 
 
 Limitations or rebut the presumption of payment arising from lapse of time, see 
 *193 the subsequent notes. But see Whitney v. Bigelow, 4 Pick. *110, that such an 
 
 indorsement is, in no case, j>er se, evidence for the party who made it. On trial of 
 an indictment for counterfeiting notes, found in the room where the prisoner was, his 
 denial at the time that he had been there before, was received for him, lo repel any 
 unfavorable presumption which might otherwise have risen from his silence ; also his 
 statement, on Ms way, that he was going there to get bail for his brother-in-law. United 
 States V. Craig, 4 Wash. C. C. Eep. 729, 780, 732. But the force of such declarations 
 depends upon their truth as appearing from other parts of the case. Id. That one has, 
 within twenty years from the commencement of the user, plowed up a way claimed 
 through his land by another, on the ground of user for more than twenty years, declaring 
 that uie other had no right, is admissible in evidence against the other, though he was 
 not present, in order to rebut the allegation of aoqujescence. Barker v. Clark, 4 N. H. 
 Rep. 380. Semi, that one partner giving notice to a witness that the partnership had 
 ceased, might be admissible evidence for the defendant. It was offered where it might 
 be material to ascertain whether the defendant, though he had dissolved the partnership, 
 might not stiU have been suffering his name to go out to the world as belonging to the 
 old firm. Dolman v. Orchard, 2 Carr. & Payne, 104. It was denied, however, that his 
 merely stating the fact of the dissolution in conversation, without the view of giving 
 notice, would be admissible. Id. In case for a false representation of the solvency of A. 
 B., whereby the plaintiffs trusted him with goods, their declarations at the time of 
 delivering the goods, more than four months 'after the representation, that they trusted 
 him in consequence of the representation, were held admissible in evidence in their own 
 favor. Fellows v. WUliamson, 1 Mood. & Malk. 306. The prosecutor advertised two lost 
 watches, offering a reward; and the prisoner came with tliem, upon which he was prose- 
 cuted as the thief. Under the circumstances, it was held that what the prisoner said, on 
 bringing the watches, should be received in his favor as a part of the res gestcB. Atwood's 
 Case, 4 C. H, Eec. 91. But see State v. Slack, 1 Bail. Rep. 330, 383. On trial of an indict- 
 ment for a libel by the defendant for the act of adding ass's ears to the prosecutor's 
 portrait, the defendant was allowed to prove his own declaration at the very time of the 
 act, that it was his intention to transform the picture into a Midas, this being considered 
 as part of the res gestcB ; and being a circumstance to show a want of malice. Mezzara's 
 Case, before Radcliff, Mayor, 3 C. H. Rec. 113. On trial of an indictment against W. & B. 
 for conspiring to defraud C. by misrepresenting the value of certain estates of B., W. 
 offered in evidence certain lettera between himself and B., to prove that he had 
 been deceived himself by B., and was thus led into his share in the misrep- 
 resentation ; and these were received as part of the res gestae. Rex v. Whitehead, 
 1 Carr. M Payne, 316. "The declarations and conduct of a party to explain his 
 acts, are often extremely material in cases of mutiny on board ships, as it frequently 
 happens that when the mutineers have deposed their captain, they find that none of 
 them are able to navigate the ship, and they then force one of the officers to assume the 
 command of her ; and he is, in many cases, brought to trial because he appeared to be act- 
 ing with and directing the mutineers." Note a to Rex v. Crutchley, 5 Carr. & Payne, 133. 
 In assumpsit, by A. against D., for money paid to G. by A., as the guarantor of the price 
 of goods purchased by D. of G., D. contended that A. and his partner, W., paid the money 
 jointly, so that A. could not sue alone. And G., who proved the purchase of the goods, 
 and that A., for himself, or for A. & W., guaranteed the payment for D., and that A. paid 
 the money to G., was also allowed to state that A., at the time of payment, declared that 
 he alone was the guarantor, and that W., his partner, had nothing to do with it. Allen 
 V. Duncan, 11 Pick. 808, 309, 310. What A. said as to a joint engagement when he 
 guaranteed the payment, was obviously admissible. Per Shaw, 0. J.,-Id. 310. 
 
158 Declarations part of Hes Gestae. [ch. viii. 
 
 When, and how far the return and cotemporaneous conduct of an oflBcer shall be evi- 
 dence in his own favor, we shall see in the subsequent notes in this chapter. 
 
 In one case (trover), the defendant, who claimed the goods under N., offered to show 
 that while N. was in possession, she. claimed them as her own. This was overruled, and 
 on error held well, the declaration ifeing in favor of her interest. Waring v. Warren, 
 1 John. Rep. 340. The argument does not appear to have been well considered, if, as we 
 shall now proceed to show, the declaration was a part of the res geat(B. 
 
 It is not necessary, in order to warrant such evidence, that the aotdone (res gestm), with 
 which the declaration is connected, should be a single effort or a positive transaction in 
 the common sense of the term. It may be continuous for a series of years, and of a 
 passive or negative character. Thus possession of real estate for a long time, may 
 *194 be qualified and e:i^lained *by the declaration of the possessor, the apparent owner 
 in fee being thus cut down to the mere squatter, or the apparent squatter elevated 
 to the owner in fee, as is done every day in our courts. Doe ex dem. Human v. I'ettett, 
 5 Barnw. & Aid, 223. In the same way, the apparent general ovnier of personal property, 
 may be turned into a bailee or trespasser; and e eomoerso. And see the subsequent notes. 
 Long forbearance may, in like manner, be shown to signify absolute title, or temporary 
 tenancy in another ; and an apparent legal resident or citizen reduced to the temporary 
 sojourner. And it makes no difference whether the declarant be alive, and a competent 
 attainable witness, or be dead. The declaration is identical with the act, and may be 
 proved in the same manner as might the hand and seal of the declarant, either by him- 
 self, or any person who saw him sign and seal. 
 
 In case of declarations brought forward to qualify, either temporary or continuous acts 
 of possession, we are first to be satisfied, prima facie, at least, that there is a possession. 
 This may appear by actual occupancy, inclosures, partial occupancy under a deed or con- 
 tract, which carries out a constructive possession commensurate with its terms of local 
 description, acts of ownership, &c., &c., all which will be more fully considered under our 
 future titles of ejectment and trespass in the second volume. In a recent case at the 
 English Nisi Prius, an act, which would be deemed a very slight indication of possession 
 and consequent ownership, especially in the unsettled parts of this country, was held to 
 let in proof of declarations. The -lessor of the plaintiff, to show seizin of a wood lot in 
 his ancestor; proposed to prove that one Brown cut timber there by the ancestor's. permis- 
 sion. Having proved, simply, that Brown was seen in the wood cutting timber, he then 
 proposed to ask what Brown had said as to who was the owner of the wood. Maule, for 
 the defendant, objected. Mr. Justice J. Parke: "He exercised an act of ownership, and 
 he is, therefore, prima facie owner. And what he says as to any one else being the 
 owner, is a declaration to cut down his own title." Maule. " He was a mere workman." 
 Parlie, J., " I do not know that he was only a workman, except from what he may have 
 said." Richards. " Your Lordship will only hear what he said at the time." Parke, J., 
 " Yes, what he said at any time." The latter must have been on the ground, that the act 
 of cutting wood being prima faoie evidence of a continuing ownership and possession, 
 both before and after the act, would thus cbnstructively extend each way, and connect 
 itself as a possession with an/ declaration made before or after. See the case of Doe ex 
 dem. Stansbury v. Arkwright, 5 Carr. & Payne, 575. See Thompson v. Stewart, infra. 
 See Gage v. Smith, 27 Conn. 70. 
 
 The case of Doe v. Arkwright goes to the utmost latitude of constructive possession, as 
 the foundation for letting in proof of the occupant's declarations. And in allowing the 
 tenant to connect himself in this way with the party as owner, by setting up a contract, 
 it goes farther than some of the American courts have been willing to go. In a late case, 
 the defendants, as heirs of Price, claimed to extend their ancestor's adverse possession 
 over the lines of his grant into lands granted to one Greenup previoxis to 1804, which 
 lands Greenup conveyed to the lessor of the plaintiff in 1815. To make out the defense, 
 it was proved, among other things, that in February or March, 1804, Price demised the 
 land contained in his grant to one Haydon, who entered, claiming under one Price And 
 a witness was allowed to state, that about the time Haydon entered, he told the witness 
 that he was to clear ten acres of land for rent, according to the contract with Price ; and 
 some time afterwards, Haydon showed the witness, demarked by blazes on the trees, the 
 ten acres which he stated he was to clear, which ran across the divisidta line between 
 the parties, as pointed out by their grants, and comprehended land lying within Greenup's 
 boundaries. Haydon cleared a turnip patch lying within the ten aeres in the season of 
 1804, and got firewood there. A part of the turnip patch extended across the line ; and 
 in the winter following, the patch was enlarged by a farther clearing, making in the 
 whole two acres cleared within the plaintiff's boundaries, which had been fenced and cul- 
 tivated by Price and his heirs eveV since. The demarkation of trees extended still farther 
 within the plaintiff's boundaries. 
 
 The testimony as to Haydon's declarations having been objected to, but admitted, now 
 came on exception taken, before the Court of Appeals on a writ of error. Underwood J., 
 delivering the opinion, remarked, that " to legitimate the statements made by Haydon to 
 the witness, and to rid them of the character of mere hearsay, they must be considered as 
 part, of the res gestm ; and if they cannot be so considered, they ought to have been 
 
SEC. 1.] Declarations part of Mes GesUe. 159 
 
 rejected. Conversations or declarations, made by the actor or party concerned, 
 *195 at the time an act is done, and which explain the quo aniimo *and design of the 
 performance, may, whenever the nature of the act is called in questioUj be given in 
 evidence as part of the rei geatm. Without tolerating this explanation of the'^ acts of men, 
 by receiving their accompanying declarations, we should be often misled as to their true 
 nature and character, and consequently liable to fall into errors in respect to them. The 
 rule requiring res gestm declarations to be received as evidence, is a necessary and very 
 useful one ; but, in the present case, we think it will not sanction the reception of the 
 testimony objected to. Haydon, as an occupant or tenant of the land, might during his 
 actual occupancy, make declarations which ought to be received whenever offered in 
 evidence, to show the nature and character of his tenancy, whether as claimant in his own 
 right, or right of another, whether as tenant of the freehold, or for years, whether 
 adversely to a particular claim, or not, &c. In cases like these, the occupancy or tenancy 
 is the act ; the declarations to explain its nature and extent, made by the tenant while in 
 possession, are the res gestm. Haydon's declarations, while occupying the land, were very 
 proper to show that he held under Price, and that his possesmon was as tenant to Price ; 
 but Haydon's statements were not confined to this. They have been unwarrantably 
 extended. His mere declaration to the witness was received as evidence of what the 
 contract was between him and Price. By showing the blazes on the trees to the witness, 
 and by declaring that they included the ten acres, he Haydon, was to clear, his statement 
 without oath established a contract between him and Price in relation to these identical 
 ten acres ; and thereby Price, by his tenant, Haydoft, is made the adverse possessor by 
 construction, of another's land, to the extent of the blazed demarkation. The contract 
 between Haydon and Price is one thing, the occupancy of the land by Haydon is another ; 
 and the declarations of Haydon in relation to the nature of his possession, as res gestae, 
 still another. It was as improper to admit proof of the iirst under the idea of res gestm, 
 by receiving as evidence what Haydon had been heard to say, as it would have been to 
 have received the hearsay of Haydon to prove that Greenup, in 1804, had actually con- 
 veyed the land in controversy to Price. 
 
 The judge then goes on to show that, however plain a tenant's possession may be, it 
 does not follow that he can, by his declarations, connect himself with another in a distinct 
 and independent contract, as in this case, the contract for clearing the land ; and that the 
 effect must be merely to qualify the possession in respect to himself. He would not allow 
 that Price could come in and adopt the adverse possession for himself which Haydon had 
 assumed for him, as it seems to have been intimated Stansbury might have done, in the 
 above English case. West v. Price's Heirs, 3 J. J. Marsh. 380, 383, et seq. And see per 
 EulEn, J., in Den ex dem. Pickett v. Pickett, 8 Dev. 6, 7. 
 
 Under the general doctrine above recognized by Underwood, J., it has been held, that 
 the declarations made by the warrantor in a deed, while in possession, going to show in 
 what character and with what intent he entered and continued his possession, are admis- 
 sible in favor of the title derived from him. Jackson ex dem. Youngs v. Vredenburgh, 
 1 John Hep. 158. And on a question of settlement, one party having given in evidence 
 long adverse possession of land by the father-of the paupers, to make out that he had a 
 settlement as a freeholder, held, that the other party might show the father's declarations 
 that he held merely under a contract for a deed, and had no title. West Cambridge v. 
 Lexington, 3 Pick. 536. ' ' 
 
 In this class of cases, it has been made a question, whether, after a prima facie right 
 had been established by proof of an apparent adverse possession for a sufficient length of 
 time to confer title, evidence of thfe possessor's declarations going to cut down such title, 
 were not inadmissible as coming within the Statute of Frauds'. Thus, in trespass, q. c. f., 
 it appeared that the parties owned adjoining lots, and the defendant gave evidence of a 
 possession for thirty years, according to a crooked fence between them. The plaintiff 
 straightened the fence, but the defendant tore the straight fence down. The plaintiff offered 
 to prove acts and declarations of the defendant since the expiration of the thirty years, 
 showing that the' old fence was built for mutual accommodation, without any view to 
 title, and that the occupation was not adverse. Per Gwriaim. " It is urged that a com- 
 plete possessory title was obtained up to the line of the old fence ; and that all evidence 
 of acts or declarations, which took place afterward, are irrelevant and inadmissible to 
 prove the character of the previous possession. If the premises are well founded, the 
 argument is sound, and the conclusion logical. But the very question was as to the nature 
 and character of that antecedent possession ; and the acts and declarations of the parties 
 owning the estates, made after thirty years, which had a tendency to show their 
 *196 motives and *views during the thirty years, were proper to show the nature of the 
 occupancy, and rebut the inference which would otherwise follow from the act of 
 possession. Surely, if a written agreement had been produced, showing that the defendant 
 was allowed to maintain a crooked fence until the plaintiff should choose to have one back 
 upon the true divisional line, it would defeat all claim to the land in dispute on' account 
 of the thirty years' possession. Confessions of the party in possession, claiming under 
 that title, his acts' and dtedarations having a tendency to' show such arrangement atid 
 understanding, are equally competent evidence.'' Church v. Burghaidt, 8 Pick. 837, 328; 
 
160 Declarations part of Res Gestae. [ch. vin. 
 
 See Doe ex dem. Human v. Pettett, 5 Bamw. & Aid. 333. In a precisely similar case, in 
 the state of New York, where the possession exceeded twenty-five years, and appeared to 
 have been adverse, the mere declaration of the defendant that the line should have been 
 a straight 'one, without any express admission showing that his possession had not 
 been adverse, was not admissible^ or rather, not sufficient to entitle the plaintiff to the 
 straight fence which they had built between the two extremities where the defendant said 
 the fence should have run. Stuyvesant v. Tompkins & Dunham, 9 John. Kep. 61. Quere. 
 The declarations of a party in possession of lands are admissible against himself and 
 those claiming under him to show the character of his profession. Pitts v. Wilder, 1 
 Comst. 535 ; 16 Barb. 26 ; see Burlingame v. Kobbins, 31 Barb. 337, as to whether the 
 declarations of a prior owner can be proved against a purchaser for value, to show an 
 incumbrance on the land. (The declarations of a prior owner in respect to the boundaries 
 are also evidence against parties claiming under him. Cansle v. Fite, 5 Jones' Law, N. 
 C, 424 ; Davis v. Sherman, 7 Gray, Mass. 291 ; Niles v. Patch, 13 Id. 354). Such declara- 
 tions are admissible also in disparagement of title, but not to uphold the title ; Osgood v. 
 Coats, 1 Allen (Mass.) 77, 248. 
 
 But to proceed with our direct illustrations. The plaintiff in ejectment claimed under 
 H., on the ground that he (H.) acquired a right by improvement, under the Pennsylvania 
 law ; and offered to show that H., when he entered, said he was settling on the land in 
 dispute as vacant land, and to take it up by improvement. Held admissible. Bennett v. 
 Hethington, 16 Serg. & Rawle, 193, 195. On a traverse of an indictment for a forcible 
 entry and detainer, the defense was that the prosecutor had removed away from the locus 
 in quo, leaving it vacant. He was allowed to give in evidence his declarations of an inten- 
 tion to return and hold possession, made after he had left. A person may be in fact pos- 
 sessed of land, without being in fact upon the land. This must depend on intention, 
 which can only be shown by the party's declaration. Thompson v. Stewart, 5 Litt. 5, 6. 
 In trespass, the plaintiff claimed solely on the ground that he had possessed the locus in 
 quo adversely for fifteen years (the Connecticut limitation). The defendant showed title 
 from Williams, who had the paper title, and was permitted to prove that, during the fifteen 
 years, one Cotton being in personal occupation of the land, and actually taking off the 
 crops, said he held under Williams, and was to give him a part of the produce. 'This was 
 on the ground that the declarations were a part of the res gestCB. Williams v. Ensign, 
 4 Conn. Rep. 456. On a trial for a forcible entry and detainer, the question being upon 
 the relator's entry, and the extent and nature of his possession, he having proved that he 
 was in possession, was allowed to show his own declarations as to its extent, and the per- 
 son under whom he held. Smith v. Morrow, 7 Monroe, 334, 236. 
 
 It was a strong case which allowed the tenant's declarations in his own favor, after he 
 had signed a written acknowledgment that he held under the lessor of the plaintiff. Yet 
 these were allowed as to the manner in which he was operated upon to sign, as that he 
 was assured that he might long continue in possession, &c. This was allowed, he being 
 in possession, in favor of the' defendant, who claimed under him. Turpin v. Brannon, 
 3 M'Cord, 261. Of the right to use such declarations in favor of one claiming under the 
 party, and even the party himself, there is indeed no doubt where they are admissible as 
 relating to the nature of the possession. This was directly held in Martin v, Simpson 
 (4 M'Cord, 262). There, one Nance, who conveyed to the defendant, had, while in posses- 
 sion, cut logs and asserted a claim to a certain line ; and such assertions of right were 
 received in favor of his own grantee. Yet, if such declarations be admissible to impeach 
 a distinct previous act,, as taking a lease or giving a written acknowledgment by the tenant, 
 their force can rise but little above nihility. Indeed, the effect of a long series of adverse 
 acts and claims, for twenty^five years and more, under the Statute of Limitations, may be 
 swept away by a single intermediate conflicting acknowledgment, as we often see at the 
 circuit. Doe ex dem. Human v. Pettett, 5 Barn. & Aid. 223. 
 
 The general doctrine that the declarations of a tenant in possession of land are 
 admissible as a part of the res gestm, for the purposes explained by Underwood, J., supra, 
 has seldom been denied. A few cases have, apparently through inadvertence, gone the 
 other way ; but they have generally been afterwards given up by the very courts in which 
 they were decided. In one case, the defendant in ejectment, claiming that certain tenants 
 in possession held under him, offered to show their acknowledgments to that effect, which 
 Was denied as hearsay, without apparently adverting to the question whether these 
 acknowledgments might not be considered a part of the res gestm. Calvett v. Fitz- 
 *197 gerald, Litt. Sel. Cas, 388, 389. That they might was afterwards *conceded by 
 the same court in another case, where the usual distinction between being in and 
 out of possession is taken. May v. Jones, 4 Litt. Rep. 21, 23, 24. In a subsequent case 
 still, the court denied that the declarations of a possessor were a part of the res gestm, but 
 only what he said at the time of his entry. Brubaker v. Poage, 1 Monroe, 125, 126. fiut 
 we have seen, by West v. Price, ni supra, that they have given up that distinction. 
 
 It is well settled, however, that the tenant's declarations, can in no case be received to 
 shake a clear documental title derived to himself from the owner (Beading v. Weston, 7 
 Conn. Bep. 143, 147) ; or, if by parol, to show title in another which could only arise 
 dooumentally. Either would be a plain violation of the Statute of Frauds. Jackson ex 
 
SEC- I.] Declarations part of Hes GestCE. 161 
 
 dem. Burr v. Sherman, 6 John. Bep. 19, 20, 21. And Bee Kimball v. Morrell, 4 Greenl. 
 368. Rut a distinction should always be made between a possessory and documental title. 
 A deceased widow's admission that she claimed for life only, was received to debut an 
 adverse possession, indicating that she had claimed in fee. Doe ex dem. Human v. Pet- 
 tett, .5 Barn. & Aid. 223. 
 
 Indeed, it is hardly necessary to observe, that hearsay making a part of the res gestm, 
 as well as all other declarations, in order to their being competent, must not only relate 
 to such facts as are susceptible of oral proof, but must also, like other evidence, be rele- 
 vant to the matter in hand, must bear upon the point of inquiry, and come under 
 Buboidination to other general rules which govern in the admission of testimony. All 
 questions of evidence must be considered in reference to the particular circumstances 
 under which it is offered. Per Abbott, C. J., in Doe ex dem. Human v. Pettett, supra. 
 
 In lilie manner, and under similar qualifications, the declarations of persons accompa- 
 nying their acts of forbearance to take possession, may be given in evidence; The plaintiff 
 claimed a right to tlie exclusive felling and converting of trees in a certain belt of wood 
 surrounded by tenants, he founding the right on long usage, and sought from this to have 
 a grant or reservation presumed by the jury ; and he was allowed to give in evidence the 
 declarations that such was his right, made by the surrounding tenants. It was objected 
 that this was hearsay, but answered that it was a part of the res gestm ; for it was accom- 
 panied with forbearance by the various tenants who made the declarations, and their 
 landlords, to exercise their right themselves, and leaving the whole to the plaintiffi 
 Stanley v. White, 14 East, 832, 385, 339, per Bayley, J. ; 340, by the court, and 341, per 
 Ld. Ellenborough, C. J. ; and see post, in the text. In a writ of entry the demandant 
 claimed the premises as part of a mill privilege granted to Ham ; and to show that it was 
 within the grant, proved grants from Ham to several persons, of land which they took 
 possession of as the mill privilege, and built a mill. The defendant claimed that the 
 premises in question did not come within the grant to Ham, and was allowed to prove 
 that when the mill built by the grantees of Ham, was to be rebuilt, some of the grantees 
 refused to join in the re-building, saying it stood on Allen's land, under whom the 
 defendant now claimed. The court say their declarations were admissible as a part of 
 the res gestm. The mere act of abandoning was equivocal as to the motive. Tlie declar- 
 ations removed the doubt, and were admissible to qualify the act, and in that sense made 
 a part of it. Down v. Lyman, 3 N. Hamp. Rep. 486. 
 
 The same rule prevails, in its utmost extent, as to personal property. Thus, on appeal 
 between two towns, contesting the settlement of a negro, it seems, that the declarations 
 of a person, made in respect to his title to the negro, while in possession of the negro as 
 a slave, are receivable in evidence. Overseers of Germantown v. Overseers of Livingston, 
 2 Cain. Rep. 106, 107. On the same principle, a will and inventory of a negro &ii evi- 
 dence that the testator claimed the negro as his slave, and that he was inventoried 'as 
 such. Walkup v. Pratt, 5 Har. & John. 51, 57. See also Pool v. Bridges, supra. (Contra, 
 Woodruff V. Cook, 25 Barb. (N. T.) 205.) 
 
 A majority of the cases are peculiarly clear and strong, that declarations of a debtor 
 who continues in possession of property after a sale or transfer in any way by him to 
 another, showing fraud in the transfer, are evidence against the vendee or transferee, in a 
 contest between him and the creditors. In one case it was denied that such declarations 
 (e. g. an offer by the debtor to sell) could be used in this way, unless shown to have been 
 with the consent or permission of the vendee. Talcott v. Wilcox, 9 Conn. Rgp. 134, 139. 
 But in that case the possession of the vendor, at the time of the declaration, was put in 
 doubt by the evidence ; and the court consider the jury as having found against it. Id. 
 p. 140, (cited with approbation in Savage v. Murphy, 8 Bosw. 75, 85.) And in trover for 
 stock on a farm and household furniture, the plaintiff claimed under a bill of sale from 
 Pusey, whose creditors had sold the property through the defendant as sheriff, and 
 *198 now set up that the sale was fraudulent. "The vendor ^'professedly ceased to con- 
 trol the property on selling it to the plaintiff, who hired Peter, a former servant of 
 Pusey, to take charge of it, whicli he did till the time of the sheriff's sale ; the property 
 still, however, continuing on Pusey's premises. Various testimony being given on the 
 question of fraud, including some acts of ownership which Pusey had exercised, 
 the defendant insisted on asking a witness as to conversations between Pusey and Peter 
 in the absence of the plaintiff, but wliile Peter so apparently had charge of the property 
 for the plaintiff, in order to determine from those conversations whether he was hired by 
 the plaintiff, or whether her hiring was not colorable, he in truth being still in the employ 
 of Pusey. Peter had left the county. This was objected to and overruled, but on error 
 was held admissible. The court say it was important for the plaintiff in the first instance 
 to prove her possession by the servant Peter. It then became undoubted and very 
 important evidence for the defendant, to show how the matter really was ; to prove that 
 while Peter was employed, he and Pusey both declared that he was the hireling of 
 Pusey. This was not merely hearsay evidence. It was the best evidence the nature 
 of the thing was capable of — the declaration of the master and the servant at the time 
 they were employed about the property. It was not to charge the plaintiff, nor to destroy 
 a contract by a conversation between others ; but the declaration of persons in possessioii 
 
 Vol. L 21 
 
162 Declarations pari of Res Gestce. [ch. vni. 
 
 Btowing in what character they were in possession. It was the res gestm itself. It was 
 very proof of actual possession in Pusey. It destroyed the colorable possession of the 
 plaintiff by means of Peter, and showed the reality of the possession to be Pusey's. 
 Peter had before been in the employment of Pusey in the same way. He continued to 
 act under his orders, at the very time the witness spoke of. It was much stronger evi- 
 dence to show the unaltered course of possession in Pusey, than the evidence of a hiring 
 of the plaintiff, was to show the contrary. 
 
 The declaration of a tenant in possession is constantly received as to whom he held 
 under ; not as evidence of title, but as evidence of possession, and the character of the 
 possession. Babb v. Clemson, 10 8erg. & Rawle, 419, 436, 427, compared with S. C. in 13 
 Id. 338, 330. The same doctrine is held in England. In trover, it was proved that on the 
 13th July, 1837, tlie plaintiff sued out a fi. fa. against J. Willies ; and the defendant, as 
 sheriff, sold the goods under the fi. fa. to the plaintiff, on the 16th July. On the 9th of the 
 next September, the defendant seized the same goods under another fi. fa. against J. Wil- 
 lies, at the suit of Homfray. J. Willies continued in possession till the second Ji. /re. came ; 
 and the defense was, that the first execution was fraudulent. To show this, the defendant's 
 counsel proposed to ask the sheriff's officer what Willies said when Homfray's execution 
 came against the goods. " Curwood, for the plaintiff, objected that what J. Willies said 
 as to the property of the goods was not evidence, as he might be called." Vaughan, 
 Baron : " What J. Willies said as to whose the goods were, he being then in possession 
 of the goods, is evidence." This evidence was received ; and the officer also proved that 
 the plaintiff had said to him that he had sued out the first execution to protect the goods 
 from Homfray. Nonsuit. Willies v. Farley, 3 Carr. & Payne, 395. Such testimony has 
 been held admissible on more grounds than one. The possession is there considered as 
 adequate evidence of a conspiracy between the vendor and vendee to defraud the creditors, 
 and the admission of the debtor let in as that of a co-conspirator. True, there is little need 
 of the latter ground, because, when the conspiracy is made out far enough to let in the 
 declaration, the case may stop as a safe one for the creditors. In Louisiana, the declara- 
 tions of the debtor are always received to show fraud as far as he was concerned, though 
 it is admitted that, unless he be in possession, his vendee cannot be further affected. 
 Guidry v. Grivot, 3 Mart. Rep. (N. S.) 13, 15 ; Martin v. Reeves, 3 Id. 33. And see High- 
 lander v. Fluke, 5 Mart. Rep. (1st series), 443, 449. 
 
 So as to residence. On a question of settlement it became material to ascertain whether 
 the pauper was domiciled in the town of Canton. He resided there with H. about seven 
 years, being off on excursions and journeys about one-third of the time. He being dead, 
 his declarations of an intention to remove, on going out upon excursions and journeys, 
 were received in evidence as part of the res gesta, Gorham v. Canton, 5 Greenl. 366. See 
 also Baptiste v. Volubrun, suprn, S. P. The party's own declarations, to show him a 
 sojourner, were received after sixteen years' residence. And, on a question whether one 
 was a citizen of England or the United States, the court allowed his declaration : that, in 
 going to England, his object was to claim compensation as a loyalist. Doe ex dem. Stans- 
 bury V. Arkwright, 5 Carr. & Payne, 575. The court went very far when they held that 
 an ancient deed and will of the pauper's deceased grandfather, describing himself as 
 *199 of 0., was receivable, as being in the nature of an act to show *that his settlement 
 was there. Ward v. Oxford, 8 Pick. 476. But in an action of slander, for accusing 
 the plaintiff of perjury in respect to A.'s place of residence, A.'s declarations as to his resi- 
 dence are i»t admissible against a party not present ; though, on a mere abstract question 
 as to residence, it depends so much on intent, that declarations explanatory of his bodily 
 presence are admissible as part of the res gestm. Cherry v. Slade, 3 Hawks, 400. 
 
 The state of feeling, of sentiment or sanity, may — nay, must — in general be indicated 
 by the declarations of the individual in respect to whom these things are predicated. That 
 this is so in a question of competency for defect of a witness's religious belief, we saw ante, 
 note 11. And where it was sworn by a witness that a testator made confidential commu- 
 nications to him, the testator's declarations, by which he showed suspicion of the witness's 
 honesty, were admitted in reply. These says Tilghman, C. J., were acts, not merely hear- 
 say. They showed a want of confidence, and the improbability that family concerns of a 
 delicate nature would have been committed to the witness. Lightner v. Wike, 4 Serg. & 
 Rawhs 303, 306, 307. The defense was that the master of a ship was insane, on trial of 
 an indictment for confining him at sea. A journal kept by the master was received in 
 evidence for the prosecution, to show, by the manner of its being kept, that he was not 
 insane ; but held not evidence for any other purpose. United States v. Sharp et al., 1 
 Peters' C. C. Re]). 118. See Darby's Adm'r and Adm'x v. Rice, svpra. But such acts or 
 declarations, even to show insanity, in a criminal defense, must be strictly part of the res 
 gestm. In a case of homicide, by stabbing, the counsel offered in evidence the prisoner's 
 declarations, in connection with his conduct, the morning after the homicide, from which 
 to infer his insanity ; but held not admissiMc. State v. Scott, 1 Hawks, 24. See ante, 
 note 79. Where a prisoner, on trial for murder, produced evidence of declarations by 
 the deceased that he would destroy himself, with a view to raise the presumption that the 
 deceased came to his death by suicide, it was held competent for the state to give evidence 
 of the reasons assigned by the deceased for Ms declarations. State v. Crane, 3 Bail. Rep. 66. 
 
SEC. 1.] Declarations part of Res Gestae. 163 
 
 It is also proper to notice again here, that tte declarations of an agent against Ws prin- 
 cipal, in order to be available, must be a part of the res gesiCB — a matter fully illustrated in 
 the subseqent notes to this chapter. The principle has been followed out by a recent 
 decision that the administration of an attorney, who afterwards appears in the cause as 
 the attorney on record, cannot be received without further proof that he was attorney 
 when he made the admission. Wagstaff v. Wilson, 4 Barnw. & Adolph. 339. But not 
 only what the actual attorney on record for the party admits at any time, in court or out, 
 while the cause is going on, is evidence against his client, if the admission be made in the 
 regular transaction of business in respect to the cause ; but the admission of the attorney's 
 clerk, if intrusted with the management of the cause, shall have the same effect. Accord- 
 ingly, Denman, C. J., allowed proof that the managing clerk of the defendant's attorney 
 had ordered the plaintiff's attorney to pay down £30, with the costs, and secure the resi- 
 dtie by a warrant of attorney. Standage v. Creighton, 5 Carr. & Payne, 406. The admis- 
 sion of a servant must, to make it receivable against the master, be strictly within the line 
 of his master's business. Thus statements made by the shopman of a pawnbroker, who is 
 left in the shop to answer in his master's absence, can only be received against the master 
 when they relate to transactions which are strictly within the business of a pawnbroker ; 
 and are not receiyable, if they relate to an advance of money not wdthin the Pawnbroker's 
 Act. Grath v. Howard, 5 Carr. & Payne, 846. The sale of a libel by, a printer's common 
 clerk is evidence to charge the printer, and, through him, his sureties to keep the peace, 
 llespublica v. Davis, 3 Yeates, 128. 
 
 The declarations of one of several wrongdoers, made long after the injury has been 
 committed, in pursuit of the common object, are received to affect the others on a different 
 ground. It seems to rest on a principle of policy and necessity. And so where the party 
 has been previously indemnified by another, against the commissioij of a particular wrong. 
 In such case he shall be taken as fully accrediting and authorizing his indemnitor to act 
 as his regular agent or attorney in managing the mafter — all his admissions in respect to 
 wliich may, therefore, come in against the guarantee. Indeed, two are joint wrongdoers. 
 But the courts do not agree as to the ground of receiving such declarations, as we shall 
 see hereafter, in respect to indemnities by deputy sherifls, a majority rather inclining to 
 confine the admissions, like those of an agent, to the res gestce. In one shape or the other, 
 however, the notion has been long prevalent. It was strongly acted upon in the 
 *300 time of Lord Mansfield. The King's Bench then held that a sheriff *who levied 
 and paid, over the money to one party, when the goods were claimed by another, 
 should be presumed to be indemnified by the party to whom he had paid ; and the declar- 
 ations of the party receiving were therefore held admissible against the sheriff, in an 
 action against him by the other party. Aldridge v. Ireland, 3 Dougl. 397. 
 
 Various other hearsay matters will suggest themselves, in the course of these volumes, 
 as coming within the doctrines of the res gestce. We have reserved a large number of 
 cases for our projected note to the case of I vat v. Finch (in the text), where they are 
 brought together with a view to see how privies, or persons coming in under the declar- 
 ant, shall be affected by the language of their predecessors. 
 
 Among others, the case of iDolman v. Orchard (3 Carr. & Payne, 104; S. C, supra), 
 which inclines to allow oral notice of the dissolution of a partnership, given to a single 
 individual, as evidence in favor of the partner giving the notice, suggests all that class of 
 cases where newspaper advertisements and other notices of dissolution are admissible ; 
 not to prove the fact of dissolution, but to put the public on their guard, and avoid the 
 claims of individuals on the ground that, although there was a secret dissolution, yet it 
 was unknown to them, the old firm being still held out as a subsisting one, and they, 
 therefore, having a right to take it as continuing, and to insist that it shall still be bound 
 by the credit which they gave. See post, Vol. II, and the notes. See per Savage, C. J., 
 as to proof of a partnership by public reputation. M'Pherson v. Eathbone, 11 Wendell, 
 98. But guere, as to the accuracy of that dictum in its broadest extent. * 
 
 The same thing will occur as to the foundation upon which we allow proof of the 
 usages of trade or business, which are agreed to enter into and make a part of contracts 
 between men. See the title Usage, in the index. These are proved by general hearsay. 
 In other words, the general opinion and understanding of persons concerned in the 
 trade to which the contract relates, though the witnesses may not know of any par- 
 ticular instance in fact upon which the opinion is founded. Camden v. Cowley, 1 Bl. 
 Itep. 417. 
 
 It is obvious that the every-day practice of fixing the price or value of various articles 
 must depend, in a great measure, on the opinion of the witnesses as derived from generally 
 reputed prices in the place with reference to which they speak. Parties generally con- 
 tract in reference to such reputed usages. Tliey are governed, in a great measure, by 
 hearsay, when they contract or deal in any way Avith, or do any act in relation to articles 
 of value ; and hence, hearsay may truly be said to form a part of the res gestce. We 
 sliould not be left to infer, however, that the price of an article in market is provable by 
 the hearsay of a single fact of purchase. 
 
 Accordingly, in an action for the non-delivery of flour, the plaintiff offering to prove by 
 a witness certain purchases of flour in market, at certain prices, by the witness's partner, 
 
164 Declarations part of Hes Gestae. [ch. Tin. 
 
 aa his partner informed him, this was held inadmissible. Williamson t. Dillon, 1 Har. & 
 Gill, 444, 451, 466, 467. But, in a New York case, to prove the price of wheat at a certain 
 day and place, proof was received that the witness inquired of large dealers in wheat at 
 the place, and derived his knowledge from their hooks, knovring nothing of the price 
 himself. Lush v. Druse, 4 Wendell, 313. Such credits were a part of the transactions of 
 Bucli dealers, and as well calculated to exhibit true prices as instances of sales made or 
 Been by the witness himself. 
 
 See post, as to cohabitation, declarations, &c., in proof of marriage being a part of the 
 res gestm. 
 
 Tlie receiving of the opinions of witnesses in any art or science, depends, in some 
 measure, upon the same principles. These will be considered when we come to treat of 
 their examination. Post of the text, and the notes. They speak .not only from their 
 own experience, but also from what they have read and heard ; and the acts of the party 
 whom these opihions are called in to affect, in a degree take their character from, and are 
 influenced by, results thus formed and thus delivered by the experts who are examined. 
 
 Nor is it refining too much to say that the moral characters of parties and witnesses, 
 where they form a proper subject of inquiry, are provable upon the same principles. 
 These characters depend upon the general estimates of their neighborhood. What 
 society have said in making them up is but another name for what they have done. 
 Their individual sayings have contributed to the good or bad character, the thing formed, 
 the act done, the res gestm. See post of the text on the examination of witnesses, 
 *201 with the notes, and Vol. II, title Slander, &c. Indeed, *the moral merit and 
 demerit of some actions are formed exclusively by public opinion. Locke's Essay 
 on the Human Understanding. 
 
 (Mitchum v. The State, 11 Geo. 615. In regard to what are the res gestm, the court say 
 in this case : " Tlie idea of the res gestae presupposes a main fact. With this preliminary 
 remark, I answer, that the res gestm mean the circumstances, facts and declarations which 
 grow out of the main fact, are cotemporaneous with it, and serve to illustrate its charac- 
 ter." See also to the same effect. Handy & TuU v. Johnson, 5 Md. 450. "The rule 
 applicable to the res gestm does not require the circumstance proposed to be given in 
 evidence should have occurred at the precise time when the principal fact happened ; if 
 it arose either at the time or so soon thereafter as to constitute a part of the transaction, 
 then it seems to give color and definiteness to it." Sample v. Bobb, 16 Penn. State E. 
 805 ; the declarations of a former owner or improver of land, accompanied by acts of own- 
 ership, are evidence that he claimed title to same and did not hold under another. So in 
 relation to personal property (Maxwell v. Harrison, 8 Geo. 61); the declarations of a 
 former owner as to the title, while in possession of the property, are admissible against a 
 person deriving title from him. But declarations of a vendor, made after he has parted 
 with the possession, are not admissible. Little v. Allison and others. Id. 201. And so 
 declarations made by a purchaser some two years before the conveyance to him, and not 
 connected with it, are inadmissible to prove fraud in the conveyance. Littlefield v 
 Getchell, 82 Maine R. 390. 
 
 The declarations or admissions of one in possession of property explanatory of his 
 possession, as that he held in his own right, or as a tenant or a trustee of another, are 
 admissible evidence, because it explains the character of his possession , but his declara- 
 tions in regard to the contract by which he came into possession cannot be received in his 
 favor. McBride v. Thompson, 8 Ala. 650 ; Cox v. Eastly, 11 Id. 362 ; 17 Id. 392. Mems 
 V. Sturdevant and wife, 23 Ala. (N. S.) 664. Declarations made by a third person, as in the 
 delivery of a chattel showing the purpose for which the delivery was made or the terms 
 of it, are admissible in connection with proof of the delivery. Stewart v. Hanson, 35 
 Maine, 506. The declarations of a person in possession of land that he occupies as tenant 
 of anothCT person, are admissible to prove possession in that other person in an action 
 between him and a third person ; Maroy v. Stone, 8 Cush. 4. Noyes v. Ward, 19 Conn. 
 250 ; a party removes an ancient fence, and places a stone in a post hole, and the next 
 day declares that he put it there as his boundary ; and the court excluded his declaration, 
 because it did not accompany the act and quality it. Bailey v. Clayton, 20 Penn. R. 295 ; 
 the declarations of the obligee in a bond made after the assignment, are not admissible ; 
 otherwise, if made by holder, as held in Murray v. Oliver, 18 Miss. 405. Neither are the 
 declarations of the payee of a note, made while he was the owner of the note, admissible 
 in this state against a subsequent holder for value. Smith v. Schenck, 18 Barb. New York 
 Sup. Ct. Rep. 344. Neither are the declarations or admissions of the assignor of an account 
 stated, made after an assignment of it, admissible to prove it erroneous. State v. Jennings, 
 use Bettison, 5 Eng. (Ark.) Rep. 428. The same^ule applies in a case of a sale of lands! 
 Beal V. Barclay et al., 10 B. Mon. 261. A written declaration to a purchaser made at the 
 time of a sale of lands, made by the owner of a ground rent thereon, is admissible as a 
 part of the res gestm, and may be proved after his death in an action between that and 
 a prior purchaser. Sergeant v. IngersoU, 15 Penn. State B. 343. See also Murphy v. 
 Hubert, 16 Id. 50. 
 
 In Sharp v. Smith, 7 Rich, (S. 0.) 3, the declarations of the payee of a note, the day after 
 it bore date, he being then in possession of it, that it was given for a gaming consideration 
 
SEC. I.] Declarations, in Questions of Bankruptcy. 165 
 
 *202 * Declarations evidence on questions of bankruptcy. Upon questions 
 of bankruptcy, where the mtentions of the alleged bankrupt are 
 often material to be inquired into, it is usual to give evidence of declara- 
 tions, as furnishing an explanation of transactions in their nature equivocal. 
 (1) Thus, it has been held, that a declaration accompanying a purchase of 
 
 and that he had sold it, were held admissible in an action by bearer against maker. The 
 statement that he had sold the note, was treated as a mere pretense. 
 
 So in regard to cha/ttels, the "declarations of the party in possession disparaging his title, 
 or showing that he did not hold in his own right, have been admitted against a person 
 deriving title from him. Jennings v. Blocker's Adm'rs, 25 Ala. (N. S.) 415. Byers et al. 
 V. Fowler, 14 Ark. 86 ; to render the decla,rations of an agent admissible agajnst his prin- 
 cipal, they must accompany and form a part of the act authorized ; they must be in the 
 nature of a verbal act. 4 Wend. 397. For instance, the declarations of a party paying 
 money are admissible as a part of the rea gestm, because they make the act operate as an 
 application of the payment. Bank of Woodstock y. Clark et al, 85 Vt. Bep. 308. The 
 declarations of a third person in the hearing of a party, which do not naturally call for a 
 reply, are not admissible against him ; as where declarations are made in a judicial pro- 
 ceeding not specially addressed to him. Brainard v. Buck et al.. Id. 571. Under the 
 general rule that declarations to become a part of the res gestcB must accompany the act 
 which they are supposed to characterize, and so harmonize with it as to be obviously one 
 transaction ; it is not competent to allow the party to prove his declarations made whil^ 
 performing or endeavoring to perform his agreement, which had been previously entered 
 into. Moore v. Meacham, 10 N. Y. Bep. 307. In an action against a carrier for injuries 
 caused by the overturning of a stage coach, it may be shown that plaintiflF complained of 
 pain and distress at the time of the alleged injury, in connection with other evidence going 
 to show the extent and nature of lis injury. Caldwell v. Murphy, 1 Kern. 416. See 
 post, 216. 
 
 Declarations by the former owner in possession giving character to the possession, in 
 reference to the boundaries, or to show that the possession was not adverse, are a_dmissible 
 against the heirs or grantees of the party making them. Fellows v. Fellows, 37 N. H. 75 ; 
 Niles v. Patch, 13 Gray, 354; Leger v. Doyle, 11 Bich. Law, S. C. 109 ; 1 Comst. 525 ; 4 
 John. 230. And on the same principle t^e declarations of the assignor of a stock of goods, 
 still in possession, as to the object of the assignment, are admissible against creditors 
 claiming under the assignment ; Adams v. Davidson, 10 N. T. Bep. 309 ; not so where the 
 declarations are made after tie execution of the instrument and the delivery of the goods. 
 Savery v. Spaulding, 8 Clarke (Iowa), 239 ; Ogden v. I'etera, 15 Barb. 560. Declarations 
 of a former owner are not received as evidence of title to real estate ; Jackson v. McVay, 
 15 John. 234 ; 6 Id. 21 ; 4 Cow, 587 ; 4 Wend. 558 ; 12 John. 96 ; to chattels or choses in 
 action ; 5 John. 412 ; 13 Wend. 161 ; 1 Comst. 519 ; 7 Hill, 361 ; 10 Paige Ch. 183 ; Tous- 
 ley V. Barry, 16 N. Y. B. 497. 
 
 Where a party seeks to prove the declarations of an agent, the agency must be first 
 proved ; as where one present paid money for another, and it was sought to show his 
 declarations at the time. Williams v. Kelsey & Halsted, 6 Geo. 365. The proof of the 
 agency is to be passed upon by the court ; that proved, the declarations are to be received 
 and submitted to the jury as a part of the transaction. Munroe v. Stutts, 9 Ired. 49. 
 The moderator of a town meeting is not an agent whose declarations bind the town, 
 where the declarations are made at a general meeting. Morrell v. Dixfield, 30 Maine, 
 157. Coit V. Howd, 1 Gray (Mass.) 547 ; two persons met and negotiated for t)ie purchase ' 
 and sale of a pair of cattle ; witness heard vendor offer them for $100, and the other offer 
 for them $95 ; witness then left, and sometime afterwards met the owner or vendor and 
 heard him say that he had sold the cattle at the time of the previous negotiation, request- 
 ing witness to keep the oxen for him ; and the court refused to permit this subsequent 
 conversation to be proved against the alleged vendor, who was still living, and a compe- 
 tent witness. Wakefield v. Grossman & Trister, 35 Vt. 298 : a party is not bound or 
 estopped by an admission or statement, when made in good faith, or under a mistaken 
 impression of its nature or extent in fact. Whittaker v. Williams, 30 Conn. .98. It is 
 not enough that another acts upon the admission or declaration ; it must be made with a 
 design to have it acted upon. McLellan v. Cox, 36 Maine (6 Bed.) 95 ; the dejendants 
 were general owners, that is, several owners of distinct fractional portions of a vessel, 
 holding the same as tenants in common ; and the evidence tended to show that the vessel 
 had been hired by Hoyt, the master, on shares ; and this action was sought to be main- 
 tained against the defendants for supplies on tie admission of one of them, but the court 
 held that the admissions of one of them did not bind the others. 
 
 (1) Questions on this subject are to be distinguished from numerous questions respect- 
 ing the reception of admissions of bankrupts concerning their trading, or the petitioning 
 creditors' debt, and which are not explanatory of any co-existing motives. See Parker v. 
 Barker, 1 B. & B. 9 ; Bromley v. King, B. & M. 338. Bespecting admissions of trading 
 made before bankruptcy, see Smallcombe v. Bruges, M'Cflel. 45 ; and respecting admissions 
 
166 Declarations, in Questions of Hanhruptcy. [ch. viii. 
 
 goods is admissible evidence, to show whether a person sought his living by 
 buying and selling. (1) Similar evidence has been received to explain a 
 bankrupt's motives, where a payment made by him is sought to be invali- 
 dated as a fraudulent preference. Upon such a question, it is competent to 
 inquire into the bankrupt's declarations as to the state of his affairs, made 
 about the time of the transaction in question, though not accompanying 
 
 or connected with that transaction. (2) Such declarations are 
 *203 *not admissible as proof the fact of his insolvency; and before they 
 
 are received in evidence as proof of his knowledge of the fact, the 
 most correct practice would be to prove alitinde, in the first instance, the fact 
 of his insolvency. (3) It is very common to give evidence of conversations 
 and letters, in order to explain acts, which, according to the intentions of 
 the party at the time, may or may not amount to acts of bankruptcy. (4) 
 In an action of trover brought against the assignees of a bankrupt, where 
 it appeared that the plaintiff at the recommendation of the bankrupt had 
 sent some goods to a dyer, and had told him that the bankrupt would call 
 and give directions about them, it was held, that these directions were 
 admissible in evidence for the defendants, as showing who was dealing with 
 the goods. (5) 
 
 Time of making the declaration, material. Much discussion has arisen 
 with respect to the limits of time (with reference to the date of trans- 
 actions insisted upon as an act of bankruptcy) within which the declarations 
 of the alleged bankrupt ought to be proved to have been made, to render 
 them admissible in evidence. It is a question for the court, in each case, 
 to consider whether the declaration proposed' to be received does or does 
 not come within a reasonable time of the disputed act; and, for this 
 purpose, the court will inquire into the existence of any connecting circum- 
 
 of petitioning creditor's dett, see Sanderson v. Laforest/1 C. & P. 46. j .See Vol. 3 on this 
 subject. 
 
 (1) Gale V. Halfkniglit, 3 Stark. R. 58. 
 
 (3) Vacher v. Cocks, M. & M. 853 ; Herbert v. Wilcocks, Id. 355, ju. See, also. Belcher 
 V. Brake, 3 C. & K. 658. 
 
 Note 83. — The declaration of a bankrupt as to the state of his affairs, and letters 
 received from his correspondents refusing to loan him money, are receivable in evidence, 
 in an action between third persons, to show the state of his affairs at the time. Vacher v. 
 Cocks, 1 Mood. & Malk. 353. Where A. & B., who were partners in trade, becgme embar- 
 rassed about the 17th March, and on the 37th, applied for a discharge under the insolvent 
 law ; and where, as between the permanent trustee of the insolvents and the defendant, 
 the inquiry was, whether a certain transfer of property, made by the insolvents on the 
 19th, to the defendant, then a creditor, was made with a view or under an expectation of 
 being or becoming insolvent debtors ; it was held that, for the purpose of enabling the 
 jury to find when the intent to seek ■ relief under the insolvent laws originated, declara- 
 tions of one of the insolvent partners, made a few days before the 20th, that if certain 
 creditors came on them, they must stop payment, or petition ; that bills of sale of house- 
 hold furniture, executed by them on the 21st, and declarations of one of the insolvents, 
 made at the same time, that the grantee therein (who was not the defendant) had advanced 
 money to the partners, and they wished to secure him in consequence of the situation 
 they were placed in ; and entries in the day-book of the insolvents, dated the 19th, 20th, 
 21st, and 23d, showing a delivery of goods and notes to various persons, and among others 
 to the defendants ; were all competent evidence for that object, as surrounding cu-cum- 
 stances of the transaction and a part of the res gestm. Kolb. v. Whitley 3 QilT & John 
 188, 195 to 199. 
 
 (Under our Bankrupt Act of 1841, securities given " in contemplation of bankruptcy' 
 were rendered void, where it appeared that the debtor contemplated an act of bank- 
 ruptcy, or a decree of court declaring him a bankrupt, at the time of giving the security. 
 Buckingham v. McLean, 13 How. U. S. 151.) 
 
 (3) Thomas v. Connell, 4 M. & W. 269. See, also, Craven v. Halliley, cit. Id. 270. by 
 Parke, B. ; Vacher v. Cocks, M. & M. 858. 
 
 (4) B. N. P. 40 ; Bobson v. Rolls, 9 Bing. 349 ; Jayer v. Garner, 7 Bing. 103. 
 
 (5) Sharp v. Newsholme, 5 N. C. 719. 
 
SEC. I.] . Declarations, in Questions of Bankruptcy. 167 
 
 stances between the declaration and the act of bankruptcy. (1) The rule is 
 not confined to the precise time of the act in question. (2) For, as 
 *204 was remarked by Lord Denman, C. J., in *giving the judgment of 
 the court, in the case of Rouch v. The Great Western Railway 
 Company, (3) "the nature and strength of the connection (of the decla- 
 ration) with the act are the material things to be looked at ; and, although 
 concurrence of time cannot but be always material evidence to show the 
 connection, yet it is by no means essential." 
 
 In that case, which was an action by the assignees of a bankrupt to 
 recover property belonging to him, it was held that a letter written by him 
 during his absence from home, stating that he was absent to avoid two 
 writs that were out against him, was admissible evidence for the jDlaintiffs 
 to show an act of bankruptcy. But, being written during the bankrupt's 
 absenting himself from home, they were in fact cotemporaneous with the 
 act. 
 
 In a leading case upon this subject, Bateman v. Bailey, (4) a conversation 
 with the bankrupt, which had passed on his return home at night, after 
 having been absent nearly two days, was permitted to be given in evidence. 
 And this case has been recognized, and followed by subsequent authorities 
 to the like effect. (5) In one of the latest cases, (6) the trader absented him- 
 self on the 16th of February till the 9th of March; and two letters written 
 by him on the 16th of January preceding, asking for time on two bills of 
 exchange payable in February, were received, as showing that the bankrupt 
 was a needy man, and to give a color to his absence. 
 
 In cases where the act of bankruptcy insisted on is a fraudulent transfer, 
 which is not capable of being proved by any single incident, but depends 
 on the situation of the bankrupt, or his conduct and language with refer- 
 ence to the whole transaction — ^a considerable interval may frequently 
 elapse between the date of a disputed act of bankruptcy, and that of the 
 declarations calculated to explain it. In the case of Ridley v. GydCjC?) a 
 conversation with the bankrupt was, under the peculiar circumstances of 
 the case, allowed to be given in evidence, which had passed twenty-six days 
 after the disputed act of bankruptcy, which was a fraudijlent transfer. And 
 in cases of continuing acts of bankruptcy, as departing the realm, or 
 *205 remaining abroad with intent to defeat or delay creditors, *letters 
 or declarations may be received during the continuance of the act of 
 bankruptcy, and long after the commencement of it. Thus, in Rawson v. 
 Haigh,(8) where the allegecJ' act of bankruptcy consisted in departing the 
 realm with intent to delay creditors, two letters were received — one sent 
 
 (1) See the observations of the court in Eidley v. Gyde, 9 Bing. 349, and in Eawson v. 
 Haigh, 2 Bing. 99. See title Bankruptcy, vol. 3. 
 
 (2) See the last note ; and the ohservations of the court in Eidley v. Gyde, 9 Bing. 349, 
 and in Thomas v. Connell, 4 M. & W. 267. The language of Lord EUenhorough, C. J., in ■ 
 Eobson V. Kemp (4 Esp. 833), confining the inference of intention to previous or cotem- 
 porary declarations, may perhaps be considered as no longer adhered to by the courts. 
 The rule seems to have been formerly confined to cotemporaneous declarations. See 
 Ambrose v. Clendon, Ca. temp. Hardw. 367. 
 
 (3) Q. B. 51, 61. 
 
 (4) 5 T. E. 512. The language of the court is not quite so strong as the effect of the 
 decision. See observations on this case, Eden's Bankrupt Law, 3d edit. p. 360 ; Evans' 
 Pothier, Vol. 2, p. 285. 
 
 (5) Newman v. Stretch, M. & M. 338 ; Eawson v. Haigh, 2 Biag. 99 ; Eidley v. Gyde, 9 
 Bing. 349 ; Eouch v. The Great Western Eailway Co., 1 Q. B. 51. There is also a prior 
 case, Maler v. Byloe, 8 Stark. E. 809. 
 
 (6) Smith V. Cramer, 1 N. C. 585. 
 
 (7) 9 Bing. 349. Park, J., relied much on an intervening circumstance of a fraudulent 
 transfer between the declaration and the act of which the bankrupt, at the time of the 
 
 'declaration, falsely professed a total ignorance. 
 
 (8) 3 Bing. 99. 
 
168 Declarations of Conspirators. [gh. viii. 
 
 from Calais, and the other from Paris — the latter having been written 
 upwards of a month after the time of the bankrupt quitting England. 
 
 In an action by the assignees of a bankrupt, to recover money paid by 
 the bankrupt to the defendant in fraudulent preference, declarations by the 
 bankrupt, made two months before the fiat in bankruptcy, were admitted, 
 for the purpose of showing his knowledge of his own insolvency at the time 
 of his making them. (1) 
 
 The declarations or letters must be connected with the state of the party's 
 mind at the time of doing the act ;(2) and in a case where there was no evi- 
 dence as to the time when declarations explanatory of an act of bankruptcy 
 were made, they were rejected.(3) 
 
 Declarations of conspirators, when evidence against co-conspirators. 
 Another well known example of evidence admissible as part of the res 
 gestae is supplied in the instance of prosecutions which involve a charge of 
 conspiracy. It is an established rule, that where several persons are proved 
 to have combined together for the same illegal purpose, any act done by one 
 of the party in pursuance of the original concerted plan, and with reference 
 to the common object, is, in the contemplation of the law, the act of the 
 whole party ;(4) it follows, therefore, that any writings or verbal expressions, 
 being acts in themselves, or accompanying and explaining other acts, and 
 60 being part of the res gestae, and which are brought home to one conspira- 
 tor, are evidence against the other conspirators, provided it sufficiently 
 appear that they were used in the furtherance of a common design. (5) 
 
 (1) Thomas v. Connell, 4 M. & W. 367. 
 
 (2) See observations of the court in Rawson v. Haigh, 3 Bing. 99. 
 
 (3) Marsh v. Meager, 1 Stark. R. 353. And see Robson v. Kemp. 4 Esp. 233. In Lees 
 V. Marston (1 Mo. & R. 210), Park, J., held that a statement of a bankrupt could not be 
 received, unless it could be proved to have been made whilst he was absenting himself, or 
 immediately on his return. This authority was cited in Smith v. Cramer, 1 N. C. 585. 
 
 (4) Charge of Bayley, J., in Watson's Case, 32 How. St. Tr. 7. See, also, Brandreth's 
 Case, 33 How. St. Tr. 854, 857 ; R. v. Salter, 5 Esp. 125 ; R. v. Cope, 1 Stark. R. 144. 
 
 (5) Hardy's Case, 24 How. St. Tr. 704. What the effect of such evidence will be, must 
 depend on a variety o{' circumstances; as, whether the prisoner was attending to the 
 conversation ; whether he approved or disapproved. By Eyre, C. J., lb ; Cuyler v. 
 McCartney, 33 Barb. 165, 171. 
 
 Note 83. — (The common design must be first shown before the statements or declara- 
 tions made by one of them, in the absence of the others, can be given in evidence against 
 the others. Tlie People v. Parish, 4 Denio, 153 ; Williamson v. The Commonwealth, 4 
 Gratt. 547. Proof of the plot or combination must prtcede proof of declarations made 
 by either of the alleged conspirators, though the conduct, acts and declarations of the 
 separate parties in the planning or execution of the scheme may be shown as evidence of 
 the common design. The State v. Simons, 4 Strobh. 266 ; Regina v. Mears, 1 Eng. Law 
 and Eq. 581 ; State v. Ripley, 31 Maine, 386. And the common design having been 
 proved, the declarations of one of the parties may be shown in evidence against them all. 
 Glory v. The State, 8 Eng. (13 Ark.) .336.) It makes no difference that t!he person who 
 utters the declaration is not a party to the suit which draws the conspiracy in question. 
 Claylor v. Anthony, 6 Rand. 385. On an information in nature of a quo warranto, to avoid 
 the election of usurping vestrymen in a religious corporation, whose election was objected 
 to as being procured by preconcerted tumult and violence, various conversations in 
 respect to the election among the corporators, at their meeting, and at meetings of certain 
 members of the congregation, and at meetings of certain voluntary societies, were received 
 in evidence in behalf of the commonwealth. And held, that it was properly put to the 
 jury whether what they had heard was relevant, and ought to have any influence as being 
 connected with the election. Commonwealth v. Woolser et al., 3 Serg. & Rawle, 29, 81. 
 In case of a fraudulent combination to extort money by C, T., H. and others, which 
 probably continued on foot down to the time of the trial, held that the declarations of 
 one, being part of the res gestm, were admissible to affect the othera. Apthorpe v. Com- 
 istock, 2 Paige, 482, 488. The plaintiff; C, holding a bill of sale of personal property, 
 subject to the levy of an execution, the debtors in the execution, who had given the bill 
 of sale to the plaintiff, conspired with M. to procure a sheriff"s sale, in the plaintiff^'s 
 absence, so as to prevent his redeeming the property ; and it was sold at auction to M. 
 In trover by C. against certain persons who claimed title through M., the declarations of 
 one of the debtors and M,, made about the time of the auction, were held admissible 
 
SEC. I.] "When Evidence against others. 169 
 
 *206 *In Stone's Case,(l) the prisoner was indicted for treason, and was 
 charged with conspiring, together with a person of the name of Jack- 
 son, to collect and communicate intelligence to the French government. 
 After evidence had been given of a conspiracy for this purpose, a letter 
 written by Jackson, containing treasonable information, and which had 
 been intercepted, was received in evidence against the prisoner. 
 
 Upon the same principle, in Hardy's Case, (2) a letter written by the 
 chairman of a meeting in London to a delegate sent by that meeting into 
 Scotland, was received in evidence; the letter containing encouragement to 
 that delegate to proceed ia the cause in which he had been engaged by the 
 direction of the meeting in London ; and that meeting being composed, 
 amongst others, of the prisoner, the writer of the letter, and the person to 
 whom it was addressed. In the same case,(3) evidence was admitted 
 to prove that Thelwall (who was a member of the Corresponding Society 
 with the prisoner) had brought a paper with him to a printer, and desired 
 him to print it ; the paper being considered as evidence to prove a circum- 
 stance in the conspiracy. 
 
 On the same trial numerous letters were read which had been written 
 *207 *by co-conspirators in furtherance of the common object, and tracts 
 and other writings distributed by them were received in evidence ; 
 being in the nature of verbal acts, for which the prisoner, though not 
 personally present when they were spoken, written or published, was never- 
 theless responsible. 
 
 ti like manner, consultations in furtherance of a conspiracy are receivable 
 in evidence,(4) as also letters or drafts of answers to letters, and other 
 papers found in the possession of co-conspirators, and which the jury may 
 not unreasonably conclude were written in prosecution of a common pur- 
 pose to which the prisoner was a party. In Home Tooke's Case,(5) the 
 draft of a letter intended to have been sent by Hardy, as secretary to 
 the Corresponding Society, in answer to another letter, and which was 
 found in Hardy's possession, was admitted. And in the same trial, another 
 letter was admitted, which was written by the secretary of a society at 
 Shef&eld, and was addressed to the prisoner, but was found in Thelwall's 
 possession. 
 
 For the same reason, declarations or writings explanatory of the nature 
 of a common object, in which the prisoner is engaged, together with others, 
 are receivable in evidence; provided they accompany acts done in the 
 prosecution of such an object, arising naturally out of these acts, and not 
 being in the nature of a subsequent statement or confession of them. Upon 
 this principle the expressions of the mob in the Sacheverell riots, that they 
 designed to pull down the meeting-houses, were admitted in evidence. (6) 
 
 against the defendants, as part of the res gestm. Crary v. Sprague, 13 Wend. 41. See 
 Babb V. Clemson, and Willies v. Farley, 3 Carr. & Payne, 395, where a vendor in posses- 
 sion after sale may, by his declarations, affect his vendee, on the ground of the res gestce. 
 Where a sheriff is sued for taking property, and he defends on the ground that plaintiff's 
 title is derived through a fraudulent assignment, the declarations of third persons not 
 parties to the action cannot be proved without showing that they and the plaintiff acted 
 on a common purpose to defraud creditors. Jones v. Hurlburt, 89 Barb. 403. 
 
 The declarations of joint wrongdoers, when received to. affect others, are not always 
 confined to the narrow ground of the res gestce. In most instances, the common objeet 
 being first proved, and the wrong done, admissions hy one made. long after tht injury is 
 complete, may be received to affect the others. 
 
 (1) R. V. Stone, 6 T. R. 527 ; S. C, 1 East, 97 ; 25 How. St. Tr. 1366. 
 
 (2) 24 How. St. Tr. 704. The scruple of Eyre, C. J., in consequence of the letter never 
 having reached its destination, does not appear to have any weight. 
 
 (3) 24 How. St. Tr. 199. 
 
 f4) Lord Russell's Case, 9 How. St. Tr. 578 ; cited in Hardy's Case. 
 
 (5) 25 How. St. Tr. 230. And see the point respecting letters found in the possession of 
 co-conspirators in Watson's Case, infra. 
 
 (6) 15 How. St. Tr. 552. 
 
 Vol. I. . 22 
 
170 Declarations of Conspirators, [oh. viii. 
 
 The same kind of evidence was received in Lord George Gordon's Case;(l) 
 and on the same principle, in other cases, the hissing of a mob, their declara- 
 tions, and inscriptions upon banners, have been held to be admissible, as 
 showing the disposition and character of the mob, in proceedings wherein 
 the prisoner was concerned. ^2) 
 
 Upon the same principle, m "Vincent's Case, (3) on an indictment for a con- 
 spiracy to induce illegal meetings for the purpose of exciting alarm in the 
 minds of her Majesty's subjects, evidence having been given of several such 
 meetings at which the defendants were present, it was ruled that a wit- 
 ness, who was a superintendent of police, might be asked, whet'er 
 *208 *persons had complained to him of being alarmed by these meetings, 
 and that it was not necessary to call such persons themselves. 
 
 Statements of conspirators when not part of the res gestm. But where 
 words or writings are not acts in themselves, nor part of the res gestae, but 
 a mere relation or narrative of some part of the transaction, or as to the 
 share which other persons have had in the execution of a common design, 
 the evidence is not within the principle above mentioned; it altogether 
 depends on the credit of the narrator, who is not before the court, and 
 therefore it cannot be received. 
 
 Thus, on the trial of Hardy for high treason, (4) a question arose as to 
 the admissibility of a letter written by Thelwell, and sent to a third person 
 not connected with the conspiracy, containing seditious songs, which the 
 letter stated to have been composed and sung at the anniversary meeting 
 of the London Corresponding Society, of which society the prisoner and 
 the writer of the letter were proved to be members. The argument in 
 favor of the admission of the evidence was, that the letter was an act done 
 in furtherance of the conspiracy ; that the letter contained language of 
 incitement, not merely a narrative or confession by a stranger, and that in 
 such case " scribere est agere." The objection was, that the letter contained 
 merely a relation by the writer, that certain songs had been sung, which 
 could not be evidence against the prisoner. The majority of the court 
 decided against the admissibility of the letter. Eyre, C. J., Macdonald, C. 
 B., and Hotham, B., were of opinion that the letter could not be received. 
 BuUer, J. (with whom Grose, J., agreed, in thinking it admissible), said, 
 the letter ought to be received in evidence, for the purpose of showing 
 what was the nature and extent of the conspiracy ; that in Damaree's and 
 Purchase's Cases, evidence was received of what some of the parties had 
 done, when the prisoner was not there ; that, on the trial of Lord South- 
 ampton, something said by Lord Essex, previous to the prisoner's being 
 there, was admitted in evidence ; and that, in Lord George Gordon's Case, 
 evidence of what different persons of the mob had said, though he was not 
 there, had been admitted. But Eyre, C. J., and the other judges, consid- 
 ered the letter, not as an act done in prosecution of the plot, but as a mere 
 narrative of what had passed. " Correspondence," said the chief justice, 
 " very often makes a part of the transaction, and in that case the' corres- 
 pondence of one who is a party in a conspiracy would undoubtedly be 
 evidence, that is, a correspondence in furtherance of the plot ; but a cor- 
 respondence of a private nature, a mere relation of what had been done, 
 
 (1) 31 How. St. Tr. 542. 
 
 (3) B. V. Hunt, 3 B. & A. 566 ; Bedford v. Birley, 8 Stark. E. 76. A point was raised in 
 R. V. Hunt, whether the evidence of inscriptions on banners was the hest evidence ; as to 
 which, see infra, On 8eeonda/ry Bmdence. A point occurring in the same trial, as to the 
 admissibility of resolutions at a former meeting, seems to depend rather upon the doctrine 
 of admissions, and properly to belong to that part of the present work which treats of the 
 relevancy of proofs. See further, Burdett v. Colman, 14 East, 183. 
 
 (3) E. v. Vincent, 9 C. & P. 375. 
 
 (4) 24 How. St. Tr. 453, 475. See 32 How. St. Tr. 851. 
 
SBC. I.] WTien JSkidence against others. 171 
 
 appears a different thing." And with respect to the .cases alluded to by 
 Buller, J., the chief justice obseryed: "In the cases of Damaree and 
 
 *209 Lord George Gordon, the cry of the mob at the time made a part *of 
 the fact, part of the transaction, and therefore such evidence might 
 
 properly be received." 
 
 Writings in possession of conspirators, be/ore or after apprehension. 
 It is in consequence of the distinction between writings or declarations 
 which are a part of the transaction, and such as are in the nature of 
 subsequent statements, but not part of the res gestas, that the admissibility 
 of writings often depends on the time when they are proved to have been 
 in the possession of co-conspirators ; whether it was before or after the 
 time of the prisoner's apprehension. Thus, on the trial of Watson,(l) 
 some papers, containing a variety of plans and lists of names, which had 
 been found in the house of a co-conspirator, and which had a reference to 
 the design of the conspiracy, and in furtherance of the alleged plot, were 
 held to be admissible evidence against the prisoner. All the judges were of 
 opinion that these papers ought to be received ; inasmuch as there was in 
 the case strong presumptive evidence that they were in the house of the 
 co-conspirator, before the prisoner's apprehension: for the room in which 
 the papers were found had' been locked up by one of the conspirators. 
 And the judges distinguished the point in this case from a point cited 
 from Hardy's Case, where the papers were found, after the prisoner's 
 apprehension, in the possession of persons who, possibly, might not have 
 obtained the papers till afterwards. 
 
 Declarations of rioters. The principal decisions respecting writings 
 and declarations of conspirators have been pr6nounced on the occasion 
 of trials for high treason ; but similar evidence has been frequently given 
 upon prosecutions for simple conspiracy, or for riot, and, generally, for 
 offenses perpetrated by confederates. (2) Thus where a defendant was 
 indicted for having conspired with one Jones and others to raise an 
 insurrection, (3) and it was proved that the defendant and Jones were 
 both members of a Chartist lodge, and that they were both at the house of 
 
 the latter on a certain day, on the evening of which the defendant 
 *210 directed certain persons, there assembled, *to a race course in the 
 
 neighborhood, whither Jones had gone before with others ; evidence 
 was admitted that Jones, at an earlier part of the same day, had directed 
 other persons to go to the race course ; and it being proved that Jones 
 with an armed party went from the race course to another place, evidence 
 was also received of what Jones had said at this place, it being considered 
 as all one transaction. 
 
 The case of The Queen agt. Blake (4) further illustrates the distinction 
 which has been above pointed out, between declarations made or acts done 
 in furtherance of the common design, and subsequent statements or mere 
 relations of acts stated to have been done. That was an information against 
 
 (1) 32 How. St. Tr. 348, 350 ; S. C, 2 Stark. E. 140. 
 
 (2) Such evidence was repeatedly given upon the trials under the Nottingham Special 
 Commisaion, A. D. 1832^ on prosecutions for demolishing a mill, and for arson, the offenses 
 having been committed hy a riotous mob. Also, in actions against the hundred, arising 
 out of the same disturbances. The like evidence is often given in cases of confederacies 
 for uttering counterfeit coin; and on trials for felcnies of various kinds, involving a 
 charge of conspiracy. See 6 T. R. 528. See also the cases cited 2 Euss. C. & M. by 
 Greaves, 773, and E. v. O'Counell, Armstrong & Trevor's R. (Ir.), 1844. 
 
 (Several persons, acting in concert in the perpetration of an offense, such as going to 
 the prosecutor's stable and shaving his horse's tail, creating a noise and distiirbance, are 
 guilty of a riot. The State v. Alexander, 7 Rich. (S. C.) 5. The parties present aiding 
 and abetting the violence and illegal act, are guilty. The State v. Straw, 33 Maine, 554.) 
 
 (3) E. V. Shellard, 9 C. & P. 277. 
 
 (4) 6 Q. B. 126. 
 
172 Declarations of Confederates, JBioters, <&o. [ch. viii. 
 
 two defendants, Blake and Tye, for conspiring to defraud her Majesty by 
 importing certain goods without paying the proper duties; the former 
 pleaded not guilty, but the latter did not appear. At the trial it was 
 proved that Tye was agent for the importer of the goods in question, and 
 that Blake was a landing waiter at the custom-house; that it was Tye's 
 duty (under the 3 & 4 Wm. IV, c. 52, § 24) to make an entry describing 
 the quantity, &c., of the goods; that a copy of such entry was delivered to 
 Blake, whose duty it was to compare it with the goods, and, if they corres- 
 ponded, to write " correct" on Tye's entry, whereupon the latter would 
 receive the goods on payment of the duty according to his entry. It was 
 further proved that Tye's entry was marked " correct " by Blake, and cor- 
 responded with the copy of the latter ; that payment was made according 
 to the quantity there described, and that the goods were delivered to Tye. 
 Evidence was then offered of an entry by Tye in his day-book of the charge 
 made by him on the importer, showing that the charge was for duty paid 
 on a larger quantity than appeared by the official entry and copy ; and it 
 was held that this was admissible against Blake, as evidence of something 
 done in the course of the transaction, and a step in the proof of the con- 
 spiracy. On the other hand, it having been shown that Blake received the 
 proceeds of a check drawn by Tye after the goods were passed, the counter- 
 foil of this check was offered in evidence, on which an account was written 
 by Tye showing, as was suggested, that the check was drawn for half the 
 aggregate proceeds of several transactions, one of which corresponded in 
 amount with the difference between the duty paid and the duty really due 
 on the above goods ; and it was held, that this was not evidence against 
 Blake, upon the principle that a mere statement made by one conspirator to 
 a third party, or any act of such conspirator not done in pursuance of the 
 conspiracy, is not evidence for or against another conspirator. 
 
 The principles upon which evidence of the description above mentioned 
 
 is admitted, are equally applicable to the trial of civil injuries, in 
 *211 *the commission of which different defendants have concurred.(l) 
 
 But evidence of this description is inadmissible in actions where no 
 common motives or object can be imputed, as in actions for negligence ;(2) 
 at least it ought not to affect co-defendants where such a consequence can 
 be avoided. And it would seem' that the principle upon which the declara- 
 tions of associates are admitted (in civil actions not less than in proceed- 
 ings upon criminal charges) only applies where such declarations are strictly 
 part of the transaction in question. In The King agt. Hardwicke,(3) the 
 rule is incidentally laid down by Lord Ellenborough, C. J., but apparently 
 without proper limitations. He says : — " Although an admission by one of 
 several defendants in trespass will not establish others to be co-trespassers ; 
 yet, if that is proved by other competent evidence, the declaration of one, 
 as to the motives and circumstances of the trespass, ■*ill be evidence against 
 all who are proved to have combined together for the common object." In 
 one case,(4) Garrow, B., admitted the declaration of a co-trespasser as to 
 common motives, in an action for false imprisonment made five weeks after 
 the injury complained of; he was a defendant on the record, and had not 
 suffered judgment by default. But it is probable this case would not now 
 be acted upon. 
 
 (1) By Lord Ellenborough, C. J., in K. v. Hardwicke, 11 East, 585. Bee also Powell v. 
 Hodgetts, 3 C. & P, 432 ; North v. Miles, 1 Campb. 889 ; Bowsher v. Cally, 1 Campb. 391. 
 
 (2) Daniels v. Potter, M. & M. 501. 
 " 11 East, 585. 
 
 Wright V. Court, 2 C. & P. 282. 
 
 (3Mi: 
 (4) Wi 
 
SEC. n.] Of the Uxclmion of Searsay. 173 
 
 SECTION It 
 Of the Rule respecting the jExclusion of Hearsay JEvidence. 
 
 The technical meaning of the term hearsay evidence having been explained 
 in the preceding section, it remains now to consider the rule by which such 
 evidence is generally excluded. 
 
 Principle of the rule. The principle of the rule, according to which evi- 
 dence is rejected as being hearsay, is, that such evidence requires credit to 
 be given to the statements of a person who is not subjected to the ordinary 
 tests required by law for ascertaining the truth of the testimony — the author 
 of the statement not being*' subject to cross-examination in the presence of 
 a court of justice, and not speaking under the religious and penal sanctions 
 of an oath — his character and motives not being investigated, and his 
 deportment not observed. It may be further remarked, that other objec- 
 tions apply to this species of evidence, which are equally applicable 
 *212 to evidence *of oral matter in general, and which seem to render the 
 application of the tests referred to peculiarly necessary. Such evi- 
 dence is very liable to be ftillacious, from the facility by which it may have 
 been imperfectly heard, or from having been misunderstood or inaccurately 
 remembered, or perhaps perverted, or possibly altogether fabricated. It is 
 to be observed, also, that persons communicating such evidence are not 
 subject to the danger of a prosecution for perjury (in which a contradiction 
 by two witnesses is requisite) ; for, where the hearsay statement is said to 
 have been made when no third person was present, or purports to be that 
 of a deceased person, the witness has no cause to be apprehensive of pun- 
 ishment, even though he has entirely fabricated the statement. 
 
 With reference to the necessity of an oath or affirmation, " no evidence," 
 says Buller, J., " is to be admitted but what is upon oath : and if the first 
 speech was without oath, another oath that there was such a speech makes 
 it no more than a bare speaking, and so of no value in a court of justice."(l) 
 The misconstructions to which evidence of oral matters is subject, from the 
 ignorance or inattention of hearers, or from criminal motives, are power- 
 fully adverted to by Mr. Justice Foster, in his Treatise on tiie Laws of 
 Treason. (2) 
 
 History of the rule. The rule under consideration is not- of great 
 antiquity. (3) So late as the year 1790, it does not appear to have been 
 settled with regard to depositions taken before magistrates (whether upon 
 criminal charges or upon other occasions) ; and, as will appear from the 
 following pages, several of the exceptions to this rule have been much nar- 
 rowed within very modem times. 
 
 (1) B. N. P. 294. And see by Bayley, J., and Littledale, J., in Spargo v. Brown, 9 B. & 
 C. 938 ; and by Lord Tenterdon, C. J., in Doe d. Sutton v. Ridgway, 4 B. & A. 55. 
 
 Note 84. — The law requires the sanction of an oath to all parol testimony. , It never 
 ives credit to the bare assertion of any one, however high his rank or pure his morals. 
 
 'er Curiam, in Gray v. Goodrich, 7 John. Rep. 96. See also, Davis v. Whitesides, 4 J. J. 
 Marsh. 116. All translations from foreign languages, to be evidence, must be on oath, 
 otherwise they are not receivable, though made by a consul. VandMvoort v. Smith, 2 
 Cain. Rep. 155. 
 
 (The form of the oath is not essential. And any person who has conscientious scruples 
 against taking an oath, or swearing in any form, may in this and most of the states, give 
 testimony on Ms solemn declaration or affirmation. 2 R. S. 505 (3d ed.) Under a late 
 statute (17 & 18 Vict., c. 125), passed in 1854, the English rule is the same. There are 
 also cases specially provided for by statute, in which certificates have the force of positive 
 testimony under oath, such as apothecaries' certificates, certificates by the clerk of a court 
 of a conviction of crime, certified copies of documents and the like. See 14 & 15 Vict, 
 c. 99.) 
 
 (2) Foster on Treason, 200. 
 
 (3) One of the earliest cases in which the rule was acted upon is Sampson v. Tajdley 
 Pasch. 19 Car. II, Keb. 223, pi. 74. 
 
 t 
 
174 Exclusion of Hearsay. [ch. viii. 
 
 Throughout the state trials before the time of the commonwealth, 
 the worst species of hearsay was constantly received ; such as the 
 *213 *examinations of persons who might have been produced as wit- 
 nesses, or who had been convicted of capital oflfenses, or who had 
 signed confessions in the presence only of the officers of government, and 
 under the torture of the rack. 
 
 On the trial of Sir Walter Raleigh, for example, the only piece of 
 evidence directly affecting him was a paper purporting to be a statement 
 by a third person of the effect and result of Lord Cobham's examination, 
 which that person had signed under threats from the chief justice. This 
 was admitted, as the chief justice observed, lest there should be " a gap 
 opened for the destruction of the king ; " though Sir W. Raleigh urged 
 " that he might see his accuser face to face," adding that " if, being charged 
 on his soul, Lord Cobham affirmed the matter of the examination, he con- 
 sented to be taken to be guilty." And on the trial of 'Sir R. Throgmorton, 
 the principal deposition had been taken from a man who had been convicted 
 of treason, but whose execution had been respited from time to time, in 
 order to induce him to accuse the prisoner. , 
 
 Even during the reign of Charles the Second, though the practice of 
 reading the depositions of persons who might have been produced as 
 witnesses was discontinued, yet hearsay evidence was allowed in many 
 cases in which it. would now be rejected. On the trials for the Popish Plot, 
 the evidence consisted principally of a narrative of the transactions of the 
 supposed conspirators m various countries, collected during a long period 
 of time from a multitude of letters, the contents of which were given from 
 recollection; the witnesses not having taken a note of any part of the 
 letters at the time of reading, not having read them for a great number of 
 years, nor having been required in reading to notice their contents, and not 
 producing one of the letters, or a copy, or even an extract. (1) 
 
 Extent of the rule. The rule under discussion applies, although the 
 account has been given upon oath, and in the course of a judicial proceed- 
 ing ; as, where a pauper has been examined upon oath (unless under 
 particular statutes) by magistrates, respecting his parochial settlement ; (2) 
 or where a deposition has been taken by magistrates upon a criminal charge 
 
 in the absence of a prisoner. (3) 
 *214 *The rule applies also, notwithstanding that -no better evidence is to 
 
 be found, and though it be certain that, if the accovint is rejected, no 
 other C3,n . possibly be obtained: as, where the evidence purports to be the 
 
 (1) The reader is referred to Mr. Phillips's Review of the Earlior State Trials : in par- 
 ticular to the trial of Lord Stafford, Vol. 1, p. 443,, and that of Algernon Sydney, Vol. 3, 
 p. 105. 
 
 (2) E. V. Nuneham Courtney, 1 East, 373 ; R. v. Perry Frystone, 2 Bast, 54 ; R. v. Aber- 
 gwilly. Id. 63. See R. v. Eriswell, 3 T. R. 725. 
 
 (3) See R. v. Crowther, 1 T. R. 135 ; R. v. Smith, 2 Stark. R. 208 ; Holt, 614 ; R. & R. 
 C. C. 339. 
 
 Note 85. — On certiorari, it appeared that after the jury had retired to deliberate, thoy 
 returned into court, and were permitted to re-examino a witness in the absence of the 
 parties. Per Ouriam ; " This is error. No man can be condemned in our law without 
 hearing the yritnesses against him, or having an opportunity to hear them, and to cross- 
 examine them." Judgment reversed. Ferine v. Van Note, 1 South. 146. 
 
 Where arbitrators, after the parties had closed their proofs, and left the arbitrators to 
 deliberate, re-examined a witness without the parties being present, and -svithout their 
 knowledge or consent, upon a material point of testimony upon which they differed, the 
 plaintiff (a party) prayed an injunction against a suit on the arbitration bond against him. 
 Chancellor Kent denied it, saying there was no misconduct ; no now testimony apjicared 
 to have been given, nor that the ^vitnoss deposed differently from what he did on his first 
 examination. It was a mere explanation of his testimony. Herrick v. Blair, 1 John. Ch. 
 Rep. 101. Yet, if it clearly appear that any of the party's witnesses were not examined, 
 and in his ijresence, it will be ground for setting the award aside. Bedington v. Southall, 
 4 Price, 333. 
 
SEC. II.] Maent of the Bute. 175 
 
 narrative of an eye-witness of a transaction, and that witness was the only 
 one, and he is since dead.(l) And, as has ah-eady been seen, where a party 
 is indicted for ravishing a child, who is too young to understand the nature 
 of an oath, a statement made by her is not admissible.(2) 
 
 Doubts were formerly entertained, whether declarations by an attesting 
 witness to a will or other instrument might not be given in evidence after 
 his death, to show that he had forged or fraudulently altered the instru- 
 ment. (3) It was suggested, that as the one party used the declaration of 
 
 the subscribing witness, as evidenced by his signature, to prove the 
 *215 *execution, the defendant might use any declaration of the same 
 
 witness to disjJrove it : and further, that the declaration was a sub- 
 stitute for the loss of the benefit of cross-examination, which might have 
 been had if the witness had been alive and exattiined. But in the case 
 of Stobart v. Dryden, (4) it was held, that such declarations were inad- 
 
 (1) In the Berkeley Peerage Case (4 Camp. 515), Mansfield, C. J., remarked : " In Scot- 
 land, and most of the continental states, the judges determine upon the facts in dispute 
 as well as upon the law, and they think there is no danger In their listening to evidence 
 of hearsay, because when they come to consider of their judgment on the merits of the 
 case, they can trust themselves entirely to disregard the hearsay evidence, or to give it 
 any little weight which it may seem to deserve." 
 
 • In like manner, as the reporter remarks, according to the practice of the English courts, 
 in affidavits \vhich are submitted to the judges only, hearsay evidence is constantly 
 admitted and acted upon. 
 
 In Scotland the rule is, that evidence on the relation of another person is admitted, 
 where tlie relator is since dead, and would, if dead, have been a competent witness. And 
 this doctrine is carried to such an extent, that if the relation has been transmitted to the 
 witness through several successive relators, it is still admissible, if the original and inter- 
 mediate relators are all dead, and would, if living, have been competent witnesses. Tait 
 Ev. pp. 430, 431. 
 
 (The declarations of a deceased person cannot be proved to show the loss of a paper, so 
 as to let in secondary evidence. Harper v. Scott, 13 Geo. 125. Nor can a person's death 
 or absence from the state be shown by hearsay or by general reputation. Smothers v. 
 Mudd, 9 B. Mon. 490 ; State Bank v. Seawell, 18 Ala. 616. And where a person is proved 
 to have been absent, and not heard from for seven years, the presumption arising there- 
 from cannot be rebutted by hearsay evidence that he has been since seen in his own state — 
 the person who saw him must be produced. Smothers v. Mudd, supra. In ordinary cases, 
 however, hearsay evidence may be given of the death of a person (Jackson v. Boneham, 
 15 John. R. 226) ; but not to prove his death in a particular manner. Jaclisou v. Etz, 5 
 Cowen, 314.) 
 
 (2) R. V. Brasier, 1 Leach, 199 ; S. C, 1 East, 443 ; E. v. Nicholas, 2 C. & K. 246 ; Supra, 
 pp. 12, 13. 
 
 (3) See Wright v. Littler, 3 Burr. 1244 ; S. C.> 1 W. Bl. 346 ; Aveson v. Lord Kinnaird, 
 6 East, 193. 
 
 (4) 1 M. & W. 833 ; See infra. Dying Decla/ratiam. 
 
 Though a witness keep out of the way to avoid a subpoena, his declarations cannot be 
 given in evidence. Woodward v. Pa:me, IS John. R. 493. The rule allowing the testi- 
 mony of a witness given on a former trial to be shown in evidence after his death, shows 
 with how much strictness the courts adhere to the rule excluding mere hearsay evidence. 
 In this state, however, it has been held that where the subscribing witness to an instru- 
 ment is dead, and the same is read in evidence on proof of his handwriting, it is competent 
 for the opposite party to prove that the character of the subscribing witness at the date of 
 the instrument for truth and veracity, was bad. Losee v. Losee, 3 Hill E. 609. On the 
 presumption that his character for veracity was good, proof of his signature, after his death, 
 comes in by way of substitute for his oath. Grouse v. Miller, 10 Serg. & Eawle, 155, 158, 
 per Gibson, J. So that proof of his bad character destroys the evidence resulting from 
 proof of his signature ; for the same reason, his declarations have been received inevidence 
 to prove that the instrument was a forgery. See note to Losee v. Losee, 2 Hill, 613. 
 
 Note 85 a.— 3 Wash. C. C. Bep. 135 ; Vassee v. Miffin, 4 Wash. C. C, Rep. 519. In 
 noticing hearsay as evidence we have, so far, forborne to classify the authorities as they 
 relate either to oral or written declarations ; treating letters, memoranda, entries, recitals, 
 &c., as standing on the same footing with what a witness hears in conversation. That 
 they do so in general, will be seen by the instances which we have given in note 78, ante, 
 where the kind of declaration offered is noted in each case, as well as in the instances 
 which will be hereafter presented in the text and notes. If there be cases in which the 
 mere %vriting of a declaration renders it competent, it will be found in memoranda of 
 deceased witnesses and in book accounts, both of which will hereafter be noticed at large. 
 
176 Of the Admissibilitj/ of Hearsay \pB.. vin. 
 
 The present note will be more profitably employed by calling the attention of the stu- 
 dent to the degree of proof by which hearsay is established, where the law recognizes its 
 admissibility. If in writing, the document must of course be adduced, or its absence 
 accounted for ; and then, as in other cases, inferior evidence may be given. Adams v. 
 Kelly, Ry. & Mood. N. P. Cas. 157, and several other cases cited ante. , If there be no writ- 
 ing in the case, but only an objection that the person who pronounced the words should 
 be produced, and the hearer excluded, it is quite obvious that this goes not to the com/pe- 
 teney as founded on grade. It relates merely to the strength or effect of the testimony, 
 which, though, for that reason, open to observation before the jury, can never be excluded 
 as secondary. Our author, in the text, consider* this a matter so well settled as to answer 
 for an illustration. Taking the written declaration of a-third person, which makes a part 
 of the rei gestae, after remarking that the declaration may be proved by the writing itself, 
 he says : " It cannot be more necessary to call the party who wrote than, in the case of a 
 verbal agreement, to call tlie party who apoke the words." That this is so in respect to the 
 declarations of an agent, see infra, as to admissions made by agents. The agent who 
 spoke need not be produced to prove his declarations, though a competent witness for 
 either party. Any one who heard him is a good primary witness. So in all the numer- 
 ous cases of the declarations of third persons, admissible as making a part of the res gestce, 
 which we shall have occasion to consider in the subsequent notes, the objection was never 
 made that the speaker must be sworn, as being able to give evidence higher in degree 
 than that of a hea/re>r. 
 
 We should not for a moment have thought it necessary to make the above remarks, had 
 it not been for the case of Coleman v. Southwick, decided in the late Supreme Court of 
 New York, in 1813. 9 John. Kep. 45. The suit was for a libel. To mitigate damages 
 the defendant offered one North, to prove what one S. told the defendant in respect to the 
 plaintiff before tlje libel appeared. It was not denied by the court that S.'s information 
 went much to extenuate the offense; but the sole objection was, that the hearer's testi- 
 mony was inferior in degree to that of the speaker ; and three of the judges (Kent, 
 Thompson and Van Ness,) whose opinion was delivered by Kent, C. J., contra Spencer and 
 Yates, J.'s, held that it was. The then learned chief justice tells us that this was the 
 established doctrine. He certainly makes a series of remarks, a priori which would have 
 been sound argument to the j ury upon the credibility of the testimony ; but favors us with 
 neither adjudication nor dictum for an application of the rule which excludes such 
 testimony because degraded on the scale of competency. His animated exhortation for 
 adhering to the established rules of evidence would seem most direct in its application to 
 the familiar rule advanced by Spencer, J., in behalf of the dissenting judges, on the 
 plainest authority : that words making a part of the transaction may be proved by any 
 one. The judges all agreed that the represeiftation was part of the res gestm. The doc- 
 trine put forward by the chief justice would disqualify a bystander from speaking to any 
 act done by a third person, as well as a participation in ihat act, so long as the actor him- 
 self continued a competent witness. The direct contrary to the decision of the majority 
 in this cause has recently been held in Rice v. Bancroft, 11 Pick. 469, 471 ; Ponsonby v. 
 Debaillon, 6 Mart. Lou. Rep. (N. S.) 238, 246, 247, S. P. The last case is all fours witli 
 Coleman v. Southwick, The defendant was sued for maliciously taking out an attach- 
 ment, on his oath of belief, that the plaintiff had absconded. To show his motives he 
 offered to prove what he was told, as to the plaintiff's absconding, by a woman. On 
 objection that the woman should be produced as the best witness, the court were at once 
 impressed with Judge Spencer's view o* the question in Coleman v. Sputliwick. Tliey 
 remark : " Whether she told the truth or not, that which she stated was a circumstance, 
 with others, to go to the jury, to show under what impressions the plaintiff acted ; and of 
 her declarations, those who liea/rd her were as good witnesses as she could be." Id. l47. 
 
 An agent's acts are the acts of his principal, and may be proved in the same manner 
 as the party's own acts ; and the declarations of the agent are admissible only when they 
 form a part of the res gestae, that is to say, a part of the contract or transaction : Thal- 
 himer v. Brinckerhoof. 4 Wend. 394. — They are not admissible, if made while the agent 
 is acting beyond the scope of his authority ; Webb v. Alexander, 7 id. 281 ; nor if made 
 by him after his duties as agent had ceased ; Fogg v. Child, 13 Barb. 246 ; Budlong v. 
 van Nostrand, 24 id. 25 ; the court in this case per Welles, J., cites the rule as laid down 
 in 1 Greenl. Ev. §§ 118, 114; Isler v. Tucker. 5 Duer, 893. The declarations of a 
 surveyor, acting as agent, made shortly after his survey relative to the line adopted by him 
 are admissible ; McCormick v. Barnum, 10 Wend. 105 ; and so are the declarations made by 
 the master of a ship, in an action against the owner as a common carrier, when made 
 concerning an injury to goods before he has delivered them : Price v. Powell, 3 Comst. 
 823 ; so are the declarations of an agent in relation to property intrusted to him in the 
 usual course of business, as to the reasons of the delay in the transportation, and even as 
 to the contract made with him in reference to the carriage, admissible, as a part of the res 
 gestm of the particular agency ; the goods being returned and the agent giving an account 
 of them ; McCotter v. Hooker, 4 Seld. 497. In an action against a railroad company for a 
 personal injury, the declaration of the driver after the injury and after the car has 
 Btoppeed, is not admissible ; Seely v. Hudson Eiver R. R. Co., 17 N. Y. Rep. 181 ; nor are 
 the declarations of a deputy sheriff, made sometime after his official act, admissible ; 
 
BEc. III.] In Matters of Public and General Interest. 177 
 
 *216 missible in *evidence. The observations of the court upon the in- 
 convenience, which would result from making an exception to the 
 general rule in such a case, illustrate the expediency of the rule. It was 
 said, that " the rights of parties under wills would be liable to be affected 
 at remote periods by loose declarations of attesting witnesses, which these 
 parties would have no opportunity of contradicting or explaining by the 
 evidence of the witnesses themselves. The party impeaching the validity 
 of the instrument would, it is true, have an equivalent for the loss of his 
 power of cross-examining the living witness ; but the party supporting it 
 would have none for the loss of his power of re-examination."(l) 
 
 It is now proposed to treat of the exceptions to this general rule of the 
 exclusion of hearsay evidence, in the following order : 
 
 Fii'st ; in matters of public or general interest. 
 
 Secondly ; in questions of pedigree. 
 
 Thirdly ; of the exception with reference to ancient possession. 
 
 Fourthly ; in the case of dying declarations. 
 
 Fifthly ; in the case of declarations against interest by persons since 
 deceased. 
 
 Sixthly ; in the case of declarations or entries made in the course of office 
 or business. 
 
 Seventhly ; in the case of testimony given on a former trial by a witness 
 since deceased. 
 
 Eighthly ; in the case of an admission by a party to the suit, or by a 
 partner or agent of a party. 
 
 Lastly ; in the case of a confession by a prisoner. 
 
 *217 *SECTION III. 
 
 Exception to the Rule as to Hearsay in Matters of Public or General 
 
 Interest. 
 It is obvious that the objections to hearsay evidence do not apply with 
 the same force to every species of hearsay ; and that the inconvenience of 
 
 Barker v. Bininger, 14 N. Y. Hep. 270. A deputy is regarded as the agent of the sheriff, 
 and his declarations made within the scope of his authority and while the process is in 
 his hands and in the course of execution, will bind his principal as a part of the res gestm, 
 Stewart v. Wells, 6 Barb. 79. But a letter written by the deputy to the plaintiff in execu- 
 tion, after the property levied upon has been converted by a third party, relating to matters 
 of information concerning the title, is not admissible against the sheriff. Barker v. Biiiin- 
 ger, 14 N. Y. Rep. 270. When the declarations are made after the transaction has closed, 
 being in fact a narrative of a past occurrence, they are inadmissible. Osborn v. Bobbins, 
 87 Barb. 481 ; to constitute a part of the res gestm the declaration must be concomitant 
 with the principal act ; must be made at the time the act was done which it is supposed 
 to characterize. If made after the act is closed, to another party, it is inadmissible. 
 Brown v. Lusk, 4 Yerg. 210. The declarations of an engineer upon a railway while 
 actually engaged upon a work, an embankment, in respect to its proper construction are 
 admissible ; Brehm y. The Great Western R. R. Co., 34 Barb. 256 ; so are the declarations of 
 the grantee at the time of the execution of a deed ; and the contehts and loss of the deed 
 being shown, the grantor's subsequent declaration that his grantee had a deed of the 
 premises is admissible as corroborative of its execution and existence. Kent v. Harcourt, 
 33 Barb. 491 ; Metcalf v. Van Benthuysen, 3 Comst. 424. Conversation immediately 
 preceding and leading to a transaction may \>e shown as a part of the res gestm ; Crounse 
 V. Fitch, 23 How. Pr. 350. But a conversation on the same day after the transaction has 
 closed and the parties have separated is not admissible ; so held where an offer was made, 
 in a suit by the indorsee of a note against the makers, to prove a conversation between 
 the payees and one of the makers after they had left the oflBoe where the note was given. 
 " The note had been given, and the parties had left the office, and the business had been 
 closed ; and whether it had been terminated fifteen min utes or as many months, is not 
 material." Per Allen, J., In Osborn v. Robbins, 37 Barb. 481. The declarations of the 
 payee of a note are not evidence against one who subsequently becomes the holder. 
 Paige V. Cogwin, 7 Hill, 861 ; Booth v. Sweeney, 4 Sel(J. 276 ; Tousley v. Barry, 16 N. Y. 
 Eep. 497. (1) 1 M. & W. 637. 
 .■ Vol. L 23 
 
178 Of the Admissibility of Hearsay [ch. viii. 
 
 rejecting it must be greater in some kinds of inquiry than in others. Hence 
 the courts have established various exceptions to the rule which excludes 
 hearsay evidence. The expediency of this rule of exclusion cannot indeed 
 be satisfactorily judged of, without taking a view of the exceptions. For, 
 on the one hand, the exceptions may be thought to obviate many objec- 
 tions which would exist if the rule were unlimited in its operation, while, 
 on the other, they have themselves occasioned a substantive mischief by 
 that mass of legal decisions which has arisen out of them — decisions which 
 contain many subtle distinctions, and not unfrequently conflicting opinions. 
 It will also probably be thought, that in some instances the rule of exclu- 
 sion has been injudiciously relaxed, and in others unnecessarily maintained 
 in its full strictness. 
 
 It is proposed to treat, i"n the .present section, of the exception to the 
 general rule, in matters of public or general interest, of which the origin is 
 in many cases, from their very nature, antecedent to the time of what is 
 called legal memory, and, in ■ the generality of instances, can be expected 
 only to be found in times beyond the reach of living testimony. 
 
 Definition of public matters. In speaking of matters of public interest, 
 it is to be observed that the term public, as applied to this subject, is not 
 always used in its strict and literal sense, which implies that a}l the queen's 
 subjects are interested in the subject matter — such, for example, as a claim 
 of highway ; but the term is often used as synonymous with general, that 
 is what concerns a large number of persons. (1) It will be seen, however, 
 hereafter that there is a distinction between these cases, as to the extent to 
 which hearsay evidence may be admitted. (2) 
 
 (1) See by Bayley, J., in Weeks v. Sparke, 1 M. & S. 690. 
 
 (2) See Crease v. Barrett, 1 C, M., & R. 919. 
 
 Note 86. — General hearsay, or, in other words, public reputation, is sometimes adduced 
 as ancillary evidence in laying the foundation for presuming a public corporate grant. 
 Thus, the defendant justified in trespass de bonis, &c., as collector, the taking of goods for 
 parish taxes ; and the Massachusetts provincial records having been burnt by tvyo several 
 fires, and no charter of incorporation being found among those subsisting, the defendant 
 was. allowed to prove the incorporation of the parish by general reputation. Dillingham 
 V. Snow, 5 Mass. Rep. 547. 
 
 Another and very common sort of hearsay is general reputation, to prove that a man 
 holds a public ofiice or employment. This is usually introduced in connection with 
 evidence of such acts as the office or employment imputed presupposes his right or duty 
 to perform . The extent to which this doctrine has been applied will be partially seen by con- 
 sulting our prior and subsequent notes, with the text to which they refer. We there spoke 
 of it, with reference to the degree of evidence, as primary or secondary. We shall here add 
 some further instances, which, while they vsall tend to enlarge the illustration under that 
 head, are intended more particularly to test the application and force of hearsay evidence. 
 In Porter v. Luther (3 John. Rep. 431), the court held that public reputation was admissi- 
 ble to prove the defendant a deputy sheriff', which was part of his plea of justification; 
 and they say, " It is a general rule to admit proof, by reputation, that a person acts as a 
 general public officer or deputy." In pursuance of this rule, it was received, in connec- 
 tion with the defendant's acts, to show that he was overseer of a certain road district No. 
 30 (Dean v. Qridley, 10 Wend. 254) ; to show that persons claiming to be trustees or 
 collectors of school districts were in truth such (Ring v. Grout, 7 Wend. 341; M'Coy v. 
 Curtice, 9 Id. 17. And see Doe ex dem. Davy v. Haddon, 3 Dpugl. 810) : that a captain, 
 acting as president of a militia court martial, was really president (indeed his acting as 
 such was alone holdeu sufficient evidence) ; The State v. Gregory, 2 Murph. 69) ; to show 
 that a man is a constable (Adams v. Jackson, 2 Aik, 145 ; Johnson v. Stedman, 3 Hamm. 
 Rep. 94, 96, 97; Barrett v. Reed, 2 Id. 411); the commissioner of a county (Keyser v. 
 M'Ki8sa^, 2 Rawle, 189) ; a justice of the peace (Snow v. Peacock, 2 Carr. & Payne, 215 : 
 Wilcox V. Smith, 5 Wend, 281) ; or a collector (Eldred v. Sexton, 5 Hamm. Rep. 215, 216). 
 And in Adams v. Jackson (2 Aik. 145, 146, 147), Skinner, C. J., said, where tlurd persons 
 are concerned, tht^t the officer is either reputed to be such or acts as such, is sufficient 
 proof. 
 
 The distinction taken, ante, that the acts of an officer de facto, but not de jure, shall be 
 good as to others, but void for himself, is reiterated in Keyser v. M'Kissan, supra. 
 
 This and the like proof was denied to an officer who sued as such for a share of prize 
 money. It was said he must produce his commission, as that was the gist of the actjon. 
 
SEC. III.] In Matters of Public and General Interest. 179 
 
 *218 *In treating of this subject, it is proposed^, ia the first place,, to illus- 
 trate by examples the nature of matters of public and general 
 interest ; secondly, to treat of the forms in which such hearsay evidence is 
 usually piresented; and lastly, of the qualifications with which it is received., 
 1. Examples of matters of public and general interest. 
 
 Reputation as to general rights. On questions respecting the exist- 
 *219 ence of a manor,(l) a manorial *custom,(2) a custom of mining in a 
 
 particular district,(3) a parochial modus,(4) a boundary between 
 counties, parishes, or manors,(5) the Ijmits of a town,(6) a custom of a 
 corporation to exclude foreigners from trading within a town, (7) a right 
 claimed by a corporation to collect tolls on a public road, (8) or by the cor- 
 poration of London to collect from west country barges, (9) a right of com- 
 mon,(10) a prescriptive right to free-warren as appurtenant to a manor,(ll) 
 a prescriptive liability to repair bridges,(12) or sea walls,(13) ratione tenurce; 
 
 or respecting the jurisdiction of a court, whether it be or be not a 
 *22'7 court of record,(14) and the like — on *all these questions in which 
 
 the public are concerned, as having a community of interest from 
 residing in the same neighborhood, or being entitled to the same privileges, 
 or being subject to the same liabilities, common reputation and the declara- 
 tions of deceased persons, asserting or disclaiming the right at issue, are 
 admissible in evidence. 
 
 Allen V. McNeel, 1 Rep. Const. Ct. 459. Qiiere. Sawyer v. Steele, 3 Wash. C. C. Rep; 
 464, stated ante, contra. A ihau doing the single act in question as an officer, e. g. the 
 sale of land for taxes, and giving a deed as sheriff, will not prove his commission. Rock- 
 hold V. Barnes, 3 Rand. 473. And yet It has been holden otherwise as to the act of taking 
 a deposition. And where the person acts in the character of an officer having authority 
 to take it, it will be received though he did not give himself the title (Bryden v. Taylor, 
 2 Har. & John. 396), and his signature proves itself — as where an officer is bound to take a 
 bond. Wood v. Fitz, 10 Mart. Lou. Rep. 196. To warrant receiving a certificate from 
 the deputy secretary, his commission, or any other acts or reputation, need not be proved. 
 Gourdine ads. Barino's Heirs, 1 Harp. Rep. 231. So of the certificate of a commissioner 
 appointed to take testimony in another state. Clement v. Durgin, 5 Greenl. 9. But see 
 Hagaman v. Stafford, 2 Blackf. Rep. 351. See Hatcher v. Roeheleau, 18 N. T. 90. 
 
 But note ; these latter cases of official depositions and the like should be distinguished 
 from the acts of other officers having no connection with the court. There are many such 
 cases in the law ; not only .of depositions, but also of' acknowledgments and certificates 
 which are made proof p&r se ; in all which cases the person officiating is regarded as a 
 gtutn officer of the court ; and his act is recognized, of course, like the return of a sheriff, 
 or a rule certified by the clerk of the court which is to act upon it. Courts take what is 
 called, judicial notice, that the person assuming to act has the proper authority. The 
 commissions and acts of other officers, not acting in the course of the cause pending, nor 
 officially empowered to furnish proofs, are matters in poM; and. must be established 
 according to the general rules of evidence. 
 
 (1) Curzon v. Lomax, 5 Esp. 60 ; Steel v. Prickett, 2 Stark. R. 466. 
 
 (2) Denn & Spray, 1 T. R. 466 ; Roe v. Parker, 5 T. R. 36, 31 ; Doe d. Foster v. Sisson, 
 13 East, 63. And see Chapman v. Cowlan, 13 East, 10. 
 
 (3) Crease v. Barratt, 1 C, M. & R. 919. 
 
 (4) Chapman v. Smith, 2 Ves. sen. 512 ; S. C, 3 Gwill. 854 ; Harwood v. Sims, 1 Wightw. 
 112 ; Moseley v. Davies, 11 Price, 163 ; White v. Lilse, 4 Madd. 314 ; Short v. Lee, 3 J. & 
 W. 464 ; Robinson v. Williamson, 9 Price, 136. 
 
 (5) Nicholls V. Parker; 14 East, 331, n. ; Steel v. Prickett, 2 Stark. R. 466 ; Plaxton v. 
 Dare, 10 B. & C. 17 ;• Coombs v. Coether, M. & M. 898 ; Barnes v. Mawson, 1 M. & S. 77 ; 
 Doe d. Molesworth v. Sleeman, 9 Q. B. 293 ; Brisco v. Lomax, 8 A. & B. 198 ; Evans v. 
 Rees, 10 A. & B. 151 ; Thomas v. Jenkins, 6 A. & E. 525. 
 
 (6) Ireland v. Powell, cit. Pea. Ev. 16. See also R. v. Bliss, 7 A. & E. 555. 
 
 (7) Davies v. Morgan, 1 C. & J. 593. 
 
 (8) "Brett v Beales, M. & M. 416 ; B. N. P. 233. 
 
 (9) London (City) v. Clarke, Carth. 181. 
 
 (10) Weeks, V. Sparke, 1 M; & S. 679 ; Pritehard v. Powell, 15 L. J. (N. S.) Q. B. 166 ; S. 
 C, 10 Jur. 154. 
 
 (U) Carnarvon (Earl) v. Villebois, 13 M. & W. 318. 
 
 (12) R. V. Sutton, 8 A, & B. 516. 
 
 (13) R. V. Leigh, 10 A. & E. 398. 
 
 (14) Goodtitle d. Braine v. Dew, 2 Peafce, 204; Rogers v. Wood, 2 B. & Ad. 245. 
 
180 Of the Admissibility of Sewrsay [ch. tiii. 
 
 Note 87. — Under this head of hearsay evidence in respect to territorial boundary, the 
 attention of the student is directed, first, to the nature of the right in question as -piiMio 
 or private; and if it be private, then to its nature as corporeal, or incorporeal. 
 
 Hearsay, on questions of public right, was in part considered, and its admissibility is 
 80 well established upon authority, that judges, the most fastidious in regard to this kind 
 of evidence, do not pretend to dispute its competency, however widely they may differ 
 upon its force and effect. See per Lord Ellenborough, C. J., in Weeks v. Sparke, 1 Maul. 
 & Selw. 686, 687. It may, therefore, be taken as settled, that where the boundary con- 
 cerns the extent of a public municipal jurisdiction, as whether lands lie, or rights_ are 
 exercisable within its true limits, either public reputation, or the particular declarations 
 of deceased persons, made ante Utem inotam, are receivable. See Nicholls v. Parker, 14 
 East, 331, note. This is well exemplified in a case tried before Mr. Justice Chanabre, at 
 Shrewsbury. The question on the record was, whether a turnpike was erected within or 
 out of the limits of the town of Wem ; that learned judge permitted the plaintiff, who 
 contended that it was within the town, to give evidence of general reputation, that the 
 town extended to a piece of land called the town and piece ; and that old people, since 
 deceased, said that such was the boundary of the town . Ireland v. Powell, Salop Sp. Ass. 
 1820, Am. ed. of Peak. Ev. (5th ed.) as edited by Norris, p. 27. And, on trying the validity 
 of a distress for a poor's rate, by magistrates, on land claimed as part of the parish of B. ; 
 to determine whether it lay there, descriptions of it in ancient leases granted by the 
 ancestor of the plaintiff's landlord ; and old rates made by the parish officers of B. on 
 the occupiers of the land and deceased overseer's accounts crossing out the tax of the 
 occupier, were all received as evidence of reputation upon this question of public 
 *220 boundary. Plaxton v. Dare, 10 Barnw. & Cressw. 17. But see Cooke v. *Banks, 
 3 Carr. & Payne, 478. Orders of justices describing Nottingham Castle as being in 
 the hundred of B.,'and evidence that it had long been reputed to be in that hundred, was 
 received to show that it belonged to that hundred ; and an extract from Domesday Book 
 was received to repel the presumption. Duke of Newcastle v. Broxtowe, 4 Barnw. & 
 Adolph. 373. 
 
 Private rights are entirely another affair. How far hearsay may be brought to bear 
 upon those which are of an incorporeal nature, we shall leave mainly to the discussions 
 in the text. These rights are a branch of learning more peculiarly belonging to England, 
 where they so extensively prevail, and depend so much on ancient usage as often to call 
 for hearsay, which is almost the only remnant of evidence left. It may be set down, 
 therefore, that on this subject the limits of hearsay evidence have been as far enlarged 
 as considerations of safety would warrant. In going beyond them, we should violate the 
 best dictates of experience. 
 
 But in settling the litigated boundaries of corporeal property, no courts have, probably, 
 been more extensively engaged, or upon questions of greater difficulty, than the American. 
 In conducting the inquiry, therefore, how far can hearsay be brought to bear on the 
 boundaries of private property, while the English decisions are doubtless, as usual, 
 very high evidence of the common law ; yet American courts ought not hastily to be 
 condemned, though they may appear to have gone beyond them. It will, we think, 
 be found that England has furnished the principle upon which the American cases may be 
 sustained to a certain extent ; though we have in some respects gone far beyond them. 
 In one of their cases at Nisi Prius, A. D. 1805, the question was whether Street Hill Waste 
 was parcel of Iveythrone farm, and the soil and freehold of one Eooke, or not, the evi- 
 dence offered of the declarations of old persons deceased, as to the ancient boundary of 
 the waste belonging to Iveythrone farm, and that it extended to the inclosure on the 
 north side of the hill, was rejected by Graham, B., because the question was not as to 
 the boundary of a parish or manor; but between one person's private property and 
 another. Clothier v. Chapman, 14 East, 331, note. The verdict being in favor of the 
 party offering the evidence, says the report, the case could not be stirred again. But in 
 another case, A. D. 1813, the defendant prescribed for a right of digging coal in the 
 plaintiff's freehold tenement called Whichwell Slacks, within a tract called the new land, 
 as contradistinguished from another called the old laud ; and to show that Whichwell 
 Slacks, where he dug, was comprehended within the new land, " the chief evidence was 
 that it lay within the known boundary line, and was surrounded by other farms that 
 were within the new land, and was always so called by persons who knew the boundaries 
 of the old anfl new land." The defendant having a verdict, on motion for a new trial, 
 the plaintiff's counsel assailed this hearsay among other evidence. But Lord Ellen- 
 borough, interrupting them, said : " As to the reputation that the estate was always 
 termed new land, the evidence was admissible in the same way as concerning the bound- 
 aries of a manor ; to show what was the boundary of the new land, within thei ambit of 
 which this particular estate [Whichwell Slacks] was included." And there the discussion 
 as to this part of the case ended. But as to this and the hearsay which had been received, 
 touching the usage to dig, his Lordship, when he came to deliver his final opinion, said : 
 " That to which the evidence of reputation was applied, was that to which it always is 
 applied in such cases, namely, as to the limits of the new land, and the general right of 
 the lord ovel it." Barnes v. Mawson, 1 Maule & Selw., 77, 78, 81; 84. The amount of this 
 
SEC. III.] In Matters of Public and General Interest. 181 
 
 decision is, that where a, tract of land is known by a certain name or designation, the 
 extent to which that name has been applied, may be shown by general reputation, and 
 the rights of parties who deal in that tract, may thus be controlled by that kind of evi- 
 dence ; and so of the relation which tract A. bears to tract B., as whether one lies within 
 or adjoining the other. Having reputed names, they are known by them to the parties 
 and the neighborhood, as a ship is known by its name to the mercantile community. 
 
 It will readily be seen by the professional reader that not only certain lots of land, 
 tracts of land, or patents, may thus become the subject of hearsay evidence; but their 
 lines, and objects in their ambit, may be, and very commonly are, dependent entirely on 
 hearsay. A patent or farm is granted to run along the Hudson river. Hearsay or repu- 
 tation comes in to tell us what stream bears that name, and to distinguish it from its 
 tributaries, the Sacandaga or the Schroon. The Kayaderosseras patent was granted run- 
 ning on one line to the north-west-most head of a creek, entitled Kayaderosseras. Public 
 reputation was called in to fis the real head of that cjeek and distinguish it from the 
 head of the Goeaa creek, which had been assumed as the true object of the line in 
 *321 a survey for the defendants. Brandt ex dem. Walton v. Ogden, 1 John. *Rep. 156, 
 157, per Spencer, J. Another object in the same patent was, the third falls of 
 Albany river (Hudson), and reputation for forty years was called in to determine wjiether 
 the third falls were Baker's or Fort Miller Falls, on the Hudson. S. C, SiCain. Rep. 6. 
 In this view of the question, Henderson J., speaks in Den ex dem. Tate v*. Southard (1 
 Hawks, 45, 47) : " Boundaries," says the judge, " frequently exist to common reputation ; 
 and it is for that reason that hearsay is evidence upon the question of boundary. It would, 
 therefore, have been suificient for the defendant to have shown that it was the common 
 reputation and understanding of the neighborhood, that his land was bounded by the 
 lines of surrounding tracts." Evidence was also received in that cause that two different 
 persons now (at the trial) dead, had, the one shown a branch to the witness as one line, 
 and another, a certain place in the road as another line of the land in dispute. And per 
 Peters, J., in Higley v. Bidwell (9 Conn. Rep. 451) : " We are informed by the late Ch. J. 
 Swift, that in this state (Connecticut) the declarations of old people respecting the ancient 
 bounds or monuments between the lands of individual proprietors, who were acquainted 
 with them, have constantly been admitted in evidence ;" citing Swift's Digest, 766, and 
 Swift's Evidence, 133. Accordingly, the declarations of a deceased tenant of the owner 
 in fee were received in evidence as to the boundary of the land temporarily holden by 
 him, even to affect the rights of the landlord. It is deducible, however, from the case, 
 that such declarations must be made aiUe Utem motam, or they are inadmissible. In a 
 previous case, the court put it that the old people, whose declarations were offered, must 
 appear to be dead ; for then, as to ancient bounds, this was the best evidence the nature 
 of the case would admit of Nor would the declarations of a man interested in the ques- 
 tion at the time, be receivable. Accordingly, they rejected declarations which came from 
 a man who once owned and who had sold the land with warranty, according to the 
 boundaries now in dispute, though it did not appear that, at the time he made the declara- 
 tions, there was any Us nwta. Porter v. Warner, 2 Root, 33. The rule appears to be the 
 same in Massachusetts, subject to the qualification that the declaration must be made at 
 the time of the declarant being on the spot, and actually showing the boundary. Van 
 Dasen v. Turner, 13 Pick. 533. In ejectment, tried in 1806, a plat and survey, made in 
 1737, by order of A. & F., under whom the defendant claimed, and according to which 
 the land had since been held, was rejected as evidence for the defendant. Lee v. Tapscott, 
 2 Wash. Rep. 376. But that objection being out of the way, the Supreme Court of New 
 York suggested that a very ancient map of the premises in question, made by commis- 
 sioners, might be evidence to fix the boundary or location. Jackson ex dem. Beekman v. 
 Witter, 3 John. Rep. 180. 
 
 It is obvious, as we have seen, that, to a certain extent, hearsay must be adopted as 
 evidence in the designation of boundaries. They are, many times, the mere creatures of 
 general reputation. 3 Roll. Abr. 186, pi. 5 ; 17 Vin. 86, pi. 5. Where this is the case, all 
 courts must receive evidence of general hearsay. When we come to pa/rHeula/r facts, as 
 that a certain tree is the comer of lot A., and propose to prove this in ejectment for the lot 
 itself, by the declaration of a deceased witness, we are hardly sustained in doing so by any 
 English case directly analogous. Barnes v. Mawson is a case of general reputation. It 
 was also an inquiry into boundary as incident to a prescription, which some of the English 
 cases agree is the subject of hearsay evidence in all its extent. The better opinion is, 
 perhaps, the other way, as will be seen by the text. If so, Barnes v. Mawson will stand 
 as fair authority for receiving general repute in a proper case, upon all boundary questions 
 of real property, corporeal or incorporeal. But it stops there. And the only English 
 adj udication upon particular hearsay (Clothier v. Chapman, Sfwprd), will still stand against 
 us unreversed and unqualified. 
 
 Among the American adjudications, which appear cautiously to have avoided overstep- 
 ping this most restricted view of the English doctrine, we may set down those of New 
 York, Vermont, Maine, and perhaps some others ; but we think it will be found that, in a 
 majority of the states, hearsay, both general and particular, is received. The state of 
 Kentucky began by aidhering to the narrowest limits. In ejectment (A. D. 1800), the 
 
182 Of the Admissibility of Hearsay [ch. tiii. 
 
 court below received evidence of what a deceased surveyor had told a witness in 1775, as 
 to the lines appearing on the land in dispute, said to have been run by him in 1774 for the 
 defendant. On error, the court said that hearsay evidence is legal to prove that land 
 is parcel or not parcel of a certain tract ; but it appeared to them that such evidence 
 had always been confined to cases where the right to land commenced by parol, and 
 depended upon it (auch rights being numerous, in England) ; and that the point to be 
 
 ascertained in every such case was, whether the land in contest had been commonly 
 *233 *reputed to appertain to a tract of land in that predicament. All the rights to 
 
 lands in this state (Kentucky) and their boundaries, at first commenced and still 
 continue to depend on written evidence ; and it seemed to the court, that hearsay evidence 
 could not legally be admitted to prove such rights or boundaries, unless, perhaps, in cases 
 where the name of a water-course, or of some other object which commenced by parol, was 
 to be established. They said, whatever the surveyor who made the lines, oould have 
 related concerning them, must have been particular facts, which could only be proved by 
 hearsay, and that the court below erred. Cherry v. Boyd, Litt. Sel. Cas. 7, 9. But it 
 would seem, by what fell from the court in the subsequent case of Smith v. Nowells, 
 which we have stated infra, and which was decided in 1833, that the earlier case is not 
 considered as maintaining an unshaken ascendancy. Nor are we aware that Tirginia has 
 gone farther than what is indicated by the following case : The complainant filed his bill 
 to be relieved in part against the purchase money of a corner lot in Richmond, which he 
 alleged fell about two feet short of the described width. To show this, he relied on a 
 recent survey of the city surveyor, who, assuming certain other stations to be correct, 
 made it out that the lot in question encroached on one of the streets upon which it 
 cornered. The court said: "If the original survey of the town was erroneous, either 
 because it was made without regard to horizontal distances, or from any other cause or 
 accident, and the property has been sold, and held accordingly to such survey, it is now 
 too late to correct such error. Ancient reputation and possession, in respect to the bound- 
 aries of streets, are entitled to infinitely more respect in deciding upon the boundaries of 
 the lots, than any experimental survey that can now be made. If not, the whole city, 
 and all other towns, would be thrown into the utmost confusion." Ralston &c. v. Miller 
 &c., 3 Rand. 44, 49. Nor are we aware that the courts in New Hampshire have laid down 
 the rule more broadly. The Superior Court of that state, on one occasion, cited the rule 
 from a former edition of our author : " In questions upon a boundary, &c., declarations as 
 to the common opinion of the place, made by deceased persons, who, from their situation, 
 had the means of knowledge, and no interest to misrepresent, have been generally con- 
 sidered as admissible." See Amer. ed. of 1833, p. 189. The offer in this case was, however, 
 to show specific declarations as to a particular fact ; and the court did not deny that this 
 might be done, but rejected the evidence as coming from persons in -pari jure. Shepherd 
 V. Thompson; 4 N. H. Rep. 313, 315. 
 
 On the whole, the doctrine, and reason of the doctrine, as it is now understood in the 
 American courts, is, perhaps, well expressed byM'Lean, J.,inBoardman v. Reed's Lessees, 
 
 6 Pet. Rep. 341. He remarks : " That boundaries may be proved by hearsay testimony, is 
 a rule well settled ; and the necessity or propriety of which is not now questioned. Some 
 difference of opinion may exist as to the application of this rule, but there can be none as 
 to its legal force. Landmarks are frequently formed of perishable materials, which pass 
 away with the generation in which they are made. By the improvement of the country, 
 and from other causes, they are often destroyed. It is therefore important, in many cases, 
 that hearsay or reputation should be received to establish ancient boundaries." See also 
 
 7 Cranch, 396, per Marshall, C. J. 
 
 The qualifications under which particular declarations are received — we do not say uni- 
 formly, but by a decided weight of authority— will appear to be about the same as are 
 attached to the rule admitting hearsay in cases of pedigree and its kindred subjects, as 
 those qualifications are presented in the pages of our author, and the notes we have 
 made. " Such testimony,'' adds M'Lean, J., in the above case of Boardman v. Reed's 
 Lessees, "must be pertinent and material to the issue between the parties. If it have no 
 relation to the subject, or if it refer to a fact which is immaterial to the point of inquiry, 
 it ought not to be admitted." This is the same case which we examined in connection 
 with Boudereau v. Montgomery, in order to see whether the hearsay offered might not 
 have come in as the testimony of a deceased witness on a former trial. In this respect it 
 holds another point of analogy with hearsay as to pedigree. Not being admissible as 
 having before come out between the identical parties now litigating, bxit as hearsay in 
 another view, it is obnoxious to the objection of being uttered posJ hem motam ; which 
 as we shall see (post notes 90 and 97, and page 376 of the text,) would be a fatal obstacle 
 to the admission of a declaration concerning pedigree. We have also seen (Higley v 
 Bidwell, Porter v. Warren, and Lee v. Tapscott, supra) additional countenance given to 
 this objection. 
 A majority of American decisions are, it is true, opposed to the objection that these 
 
 declarations concerning boundary shall be excluded, by reason of being made post 
 "333 htem motam. It *existed, but appears to have been overlooked by counsel in 
 
 Howell's Lessee v. Tilden (1 Ear. & M'Hen. 84) ; and in a subsequent case, hearsay 
 
SEC. III.] In Matters of Public and General Interest. 183 
 
 declarations of D. and his wife, made while they were in possession, and after a dispute 
 had arisen between them and the adverse claimants, were received in favor of one claim- 
 ing under D, and wife, according to the very boundaries to which their previous declara- 
 tions related. These declarations were expressly objected to, as being made after the 
 controversy had arisen. Redding^s Lessee v. M'Cubbin, 1 Har. & M'Hen. 368. But they 
 might, perhaps, have been received as part of the res gesfce, D. being iu possession, accor- 
 ding to the rule — ante, note 81, et seg.; though Shepherd v. Thompson, infra, is contra. 
 In other cases it was held that what one deceased person swore, under a commission to 
 take evidence respecting the boundaries, which commission was irregularly executed, and 
 so the oath not receivable as a deposition, would yet come in as hearsay. Bladen's Lessee 
 V. Cockey, 1 Har. & M'Hen. 330 ; Long's Lessee v. Pellett, Id. 531 ; Weem's Lessee v. 
 Disney, 4 Har. & M'Hen. 156. In another case the court received mere ex parte deposi- 
 tions, showing the declarations of the proprietors and the reputation of the neighborhood 
 as to a certain fence being the division line between the parties litigant. Sturgeon's 
 Lessee v. Waugh, 2 Yeates, 476. So a voluntary affidavit, both parties being present, 
 though objected to, was received to show that a survey made by S. excluded the locus in 
 quo. Montgomery's Lessee v. Dickey, 2 Yeates, 313, The court said it was better than 
 ordinary hearsay or reputation. And see Lilly's Lessee v, Kintzmiller, Id. 38. 
 
 While it must be confessed that these Maryland and Pennsylvania cases have proceeded 
 in utter disregard of the rule repudiating declarations as made post litem motam, yet they 
 were mostly, if not all, made before this rule was well established, even in England. 
 Other and more recent cases come back to that rule. In Spear v. Coate (3 M'Cord, 337), 
 the court received declarations touching boundary made ante, but rejected those made 
 post litem motam by the same witness. Other cases have come back to all the scrupulosity 
 of Porter v. Warren, supra, that the declarations of persons in pari jure shall be rejected ; 
 for, say the court, the declarant being possessed at the time, whether he is in as occupant 
 or owner, he is interested to extend his boundaries. Shepherd v. Thompson, 4 N. H. Rep. 
 213, 215. In Hall v. Gittings (2 Har. & John. 112, 131), it is cautiously put that the 
 declarant was not interested when he made the declaration. In another case, in order to 
 prove a comer tree of the tract claimed by the plaintiff, he offered to prove the declara- 
 tions of W., now dead, of what he heard his father, the patentee of the tract under whom 
 the plaintiff claimed, say as to the corner while he was owner of the land, and while no 
 dispute existed, or was expected, as to the title. This was held inadmissible. The court 
 say they d^ not mean to alter the rule that, on questions of boundaries, permits evidence 
 of common rumor and report, or what deceased persons who were disinterested have said. 
 Nor would they say that no act done by the owner of land should be admitted. But they 
 went on the ground that these were the declarations of one in his own favor. Smith v. 
 Walker, 1 N. Car. Law Repos. 514. Note. It should be remarked that the very question 
 decided by this case was long a vexed one in England, as to customs, public boundaries, 
 &c., insomuch that, on its coming directly before the Court of Exchequer, in 1833, the 
 learned barons felt themselves at an entire loss as to authority, and went on seriatim to 
 argue the point a priori at considerable length. On perusing the case, we are sure the 
 learned reader must feel convinced that, though the declarant be so far interested at 
 the time that he could not be a witness, yet, there being no lis mota, his declaration is 
 admissible. Moseley v. Davies, 11 Price, 163. 
 
 In all the cases where these decWations have been received, it was first made to appear 
 that the declarant was dead ; and several cases have expressly decided that this is an. 
 essential condition. Blythe v. Sutherland, 3 M'Cord, 358. That he is beyond the reach 
 of process of the court is not enough. Gervin v. Meredith, 2 N. Car. Law Repos. 635 ;. 
 Buchanan v. Moore, 10 Serg. aiid Rawle, 275, 381. The latter case pirts it more cautiously, 
 that persons who are living, and may be produced, must be sworn, and their declarations 
 cannot be heard. See also Long's Lessee v. Pellett, 1 Har. & M'Hen. 581. 
 
 It is obvious, however, that in this and all other cases Where hearsay testimony is. 
 admissible, a distinctibn must be made, as to proving the death of declarants, between- 
 particular declarations coming from individuals and general reputation. In the former 
 case death must be proved. In the latter it is never required. The difference is actei 
 upon every day at the circuit, in questions of general reputation upon other sub- 
 *324 jfects ; and the following case exemplifies its *application to boundary : Iu_ 
 ejectment the plaintiff and defendant claimed under interfering grants from the- 
 same source, the plaintiff's being the eldest. The defendant then read in evidence a 
 patent of land to one B., elder than that under which the plaintiff claimed ; and, to short 
 that it co<rered part of the gtound in controversy, asked a witness whether certain lines 
 were, before the commencement of this suit, generally reputed in the neighborhood to be- 
 the lines of B.'s survey. This was objected to, but admitted. On motion for a new- 
 trial the court held it was rightly admitted. " What any one, even a person who had 
 been present at the making of the survey, had been heard to say, would no doubt be 
 inadmissible, iinless the death of such person was first proved ; but there is a difference 
 between hearsay of a particular fact and general reputation. From the nature of the 
 thing, an old boundary cannot in geneifal be proved by direct and positive proof ; and 
 reputation is, therefore, from necessity, admissible. Smith v. Nowells, 3 Litt. Kep. 159. 
 
184 Of the Admissibility of Hearsay [ch. viii. 
 
 ^^ After the practice of receiving particular declarations had gained a foothold at the circuit, 
 it was obvious that the more important class of this kind of posthumous testimony would 
 be sought at the hands of deceased surveyors. To show the latitude with which it has in 
 fact been received, we shall copy the evidence of one Adams, as it was offered before Gail- 
 lard, J., Pendleton circuit. So. Car., spring of 1835, and which was held admissible. The 
 question was one of location^ or boundaries between the parties, and arose in an action of 
 trespass io try titles, whicK is equivalent to a real action at cominon law.' The witness 
 said, " I was well acquainted with the lines of Watt's tract, a short time after they were 
 run, and derived my information from Burnet Crafton, the original surveyor who ran 
 them. He showed them to me four or five weeks after he made the survey. He showed 
 me a poplar station on the north side of the Oslondy river on Riley's line, which he said 
 was a station for both tracts, viz : Watt's and Riley's. He then showed me a stake which 
 he said was the northwestern corner of Watt's tract, and about two feet from it a hickory 
 bush or small tree, now a stump, which he said was the corner of Riley's land. I have 
 lived within a mile of this land ever since, and am well acquainted with it. The said 
 Crafton further told mej that the line commencing at the fallen red oak and running west, 
 was made by him, and intended at first as a boundary ; but when he came to the good 
 flat land. Watt directed him to annul and discontinue it, which he did. He then went to 
 Riley's corner, and placed a stake as a corner for Watt's tract, near the hickory stump 
 aforesaid, and then ran a line sO as to intersect the Widow Criswell's line below." This 
 testimony was rejected at the circuit, because the surveyor's death had not been proved; 
 but on motion for a new trial, the court held it to be obviously admissible as secondary 
 evidence ; and the omission to provide proof of the death appearing to have been inad- 
 vertent, they granted a new trial, with a view that the formality might be supplied. 
 Blythe v. Sutherland, 3 M'Cord, 258. 
 
 The foundation of this proof as to surveyors' declarations, and the qualifications and 
 aspects under which it is to be received, had been examined in several cases before the 
 decision in Blythe v. Sutherlaiid. In ejectment, it became material for the plaintiflF to 
 show a survey by A., pursuant to instructions, for C, under whom the plaintiff claimed ; 
 and the plamtiff offered to show that A., who was dead, and whose papers had been 
 burnt, had declared that he had been instructed in writing to make the survey, and the 
 place where. This was held inadmissible, as not being hearsay in respect to boundary, 
 but in respect to the contents of a paper. Bonnet's Lessee v. Devebauge, 3 Bin. 175. In 
 another case, the plaintiffs claimed to a certain extent, and according to W.'s survey. W. 
 was dead, and to prove the extent of the survey, they offered in proof what he had said. 
 This was received, and held well. Tilghman, Ch, J., said : " When boundary is in ques- 
 tion, what has been said by a deceased person, is received as evidence. It forms an 
 exception to the general rule. It was impossible for the plaintiffs to show the extent of 
 ■their possession without showing the lines run by W. Those lines were the plaintiffs' 
 l)0undaries ; at least, such was their claim. It appears to me, therefore, that what was 
 iSaid by W. comes within the exceptidn vphich admits the words of a deceased person to 
 'be given in evidence in a matter of boundary. Caufman v. The Presb. Congreg. of Cedar 
 iSpring, 6 Bin. 59. Again ; in ejectment, the lessor of the plaintiff claimed a tract called 
 D., In Arundel county (Maryland), according to certain lines ; and was allowed to show 
 ithat the surveyor, appointed for that county, had run the lines, and made certain decla- 
 ■rations as to the boundaries and termination of the linfes, in connection with declarations 
 .from otiiei persons who were dead. Weem's Lessee v. Disney, 4 Har. & M'Hen. 156. In 
 another case, the plaintiff claimed the locjis m q^u> under a survey, &c., in 1785, 
 *335 and the defendant under a survey in 1763. On the trial, the defendant *offered to 
 prove that, in 1786, D., deceased, had shown a boundary line between the locus in 
 iguo, and his, D.'s, tract ; and had also shown a witness a walnut tree, as the common corner 
 .of three suj-veys, one for D. and another for S. and F. This testimony was admitted; 
 .and on error, held well. Tilghman, C. J., said it is not denied that, in general, the decla- 
 ration of a deceased person as to boundary is evidence ; but it is said this declaration 
 went to prove a survey. This objection is too refined. The substance of the evidence 
 was, that, D. showed the bounidary ; but this could not well be expressed without saying 
 of what land it was the boundary. Undoubtedly, a boundary being shown, some 
 implication would arise that a survey had been made ; but this is unavoidable. K is no 
 objection, however, to D.'s declarations. Those declarations are only in proof of a 
 boundary ; and if the jury thought the boundary established, the inference of a survey 
 ■would be drawn directly from the fact of a boundary. The proving of a boundary is one 
 thing, and the consequence of a boundary being proved another. Hamilton v. Meuor, 2 
 Serg. & Rawle, 70. In trespass to try titles, the plaintiff claimed a gum tree as the true 
 corner ; and was allowed to prove that G., deceased, had said he was a chain carrier at 
 t)ie time of the original survey, and that the gum tree was the corner then made. Spear 
 ■V. Coate, 3 M'Cord, 337. In ejecfment, the defendant contended that the land in dispute 
 lay within Granville's line, under which Granville he claimed ; and to show this line, he 
 was allowed to give in evidence various acts of the legislature pointing out Granville's 
 lines as the boundaries of couutiee, from 1753 to 1769 ; and that, in 1773, the same line 
 Jiad been run out and marked by .■coaunissioners as Granville's line ; and had ever since 
 
SEC. III.] In Matters of Public and General Interest. 185 
 
 (down to 1825), teen the reputed line. And though it did not appear how this line was 
 ascertained by the survey, and it was run merely to ascertain county lines, yet this 
 evidence was held admissible. And Henderson, J., said the rule, that common reputation 
 was evidence in questions of boundary, was here much better applied than when we 
 permit a witness to swear that a person since dead, told him that a certain tree in a 
 remote wood, was a line or a corner tree 6f some other person's land. Doe dem. Taylor 
 V. Roe, 4 Hawks, 116, 132. And see Harris v. Powell's Heirs, infra. 
 
 And so vrith regard to others ; " It cannot be doubted at this day that the declarations 
 of deceased persons, who shall appear to have been in a situation to possess the informa- 
 tion, shall, on a question of boundary, be received in evidence." Per Colcock, J., in Spear 
 V. Coate, 3 M'Cord, 239. And there are several cases exemplifying this proposition. In 
 ejectment, the defendant produced a witness who deposed, that eighteen years ago, Charles 
 Ridgely, deceased, told him that an agreement in respect to boundaries between two tracts 
 of land owned by T. and J. respectively, had been before entered into hy them, giving 
 particulars. It not appearing that Bidgely was interested, held his declaration was 
 admissible. Hall v. Gittings.'S Har. & John. Hep. 113, 181. In ejectment, the plaintiff's 
 patent called for a white oak as the beginning. He proved a marked white oak ; and 
 that this was his place of beginning, he was allowed to prove the hearsay of a deceased 
 person, who said he heard a former proprietor, now also dead, say that the white oak was 
 the beginning tree ; and also the hearsay of another, who said he ran out (surveyed) the 
 land for the skid proprietor when he purchased it, and began at the said white oak, in 
 the year 1766. Harris v. Powell's Heirs, decided in 1805, 3 Hayw. 849. 
 
 One matter of observation arising upon the last case is, that the court received what 
 our authbr calls hearsay in the second degree. On similar evidence being received and 
 acted upon at a irial in Tennessee, the Supreme Court of Errors and Appeals in that state 
 had occasion to pass directly upon its admissibility. In ejectment (A. D. 1813), it became 
 necessary for the defendant to show where Julius Sanders and others crossed Elk river, in 
 1781 ; it being the place of beginning called for both in the entry and grant of the 
 defendant. The defendant introduced Joseph Greef to prove what Alexander Greer told 
 him had been said by Sanders on that subject ; both Sanders and Alexander Greer being 
 dead. The court allowed this, though it appeared that another witness, still alive, was 
 present, and heard what Sanders said ; and per Cur. : " We admit that every remove 
 which is made from Julius Sanders renders the testimony weaker ; but it is still compe- 
 tent. The object is to prove wliere Sanders crossed the Blk river. Wo doubt exists but 
 what this may be done from evidence of what persons now dead have been heard to say. 
 The same rule applies to all cases of pedigree, prescription, or ancient landmarks. If 
 Alexander Greer were living and present, it would be competent for him to prove what 
 Sanders had said ; and he being dead, Joseph Greer may be permitted to prove what Alex- 
 ander Greer told him had been said by Sanders. It is equally competent, though 
 *336 weaker testimony. The reason why, in *cases of pedigree, prescription, and 
 ancient boundary, the party may prove what persons, then dead, have been heard 
 to say when living, is, that in such cases the party claiming the benefit of the evidence, 
 shall not be deprived of it by the death of the witness, if he can in anywise show what 
 knowledge the witness had on the subject. What he has been heard to say, is pretty 
 strong evidence of what he knew." The court admitted that perhaps the statement of 
 the witness who heard Sanders would be more satisfactory ; but it might be contended, 
 with the same propriety, that evidence direct of what Sanders had said, would not be 
 admissible testimony, because other persons were along with him when he crossed Elk 
 river, who are now living anid capable of being produced. Beard's Lessee v. Talbot, 1 
 Cooke's Rep. 142. 
 
 But no oral evidence, much less hearsay, can be received to change the objects mentioned 
 in a deed, entry or survey, or, in other words, to substitute one object for another. When 
 corners in a deed are lost, they may be proved by reputation ; but not to contradict the 
 deed ; as where the deed sets up a sugar and ash tree as the southeast, and two beeches 
 for the northeast corner, reputation is not admissible to substitute a hickory, oak and 
 beech tree for the first, nor two hickories for the other. M'Coy's Lessee v. Galloway, 3 
 Hamm. Rep. 382, 388. 
 
 The admissibility and influence of hearsay and reputation, in respect to boundaries, 
 was much considered by Judge Washington, on a question which arose as to the extent 
 of a tract of laiid called the manor of Springetsbury, in the State of Pennsylvania. 
 William Penn, the patentee of the whole state (province) from Charles the First (in 1668), 
 and his descendants, the proprietors, established and kept on foot a land-oflSce, and issued 
 regulations whereby settlers might, by locations and surveys, to be made according to the 
 rules of the office, acquire equitable rights to conveyances of the lands so designated by 
 them ; the proprietors reserving a right to appropriate to themselves one-tenth of the 
 state, by the like surveys. These regulations continued, and were recognized by the gov- 
 ernment as valid, from the time of the original grant down to 1776. Under them, in 
 1723, a survey was made by the government, and recognized by the proprietors, of about 
 70,000 acres, reserved lajids, under a warrant to surveyors, pointing out the precise metes 
 and bounds of the tract. 'This tract was surveyed for the use of Springet Penn, one of 
 Vol. L 24 
 
186 Of the Admissibility of Searsay [ch. ttii. 
 
 Might of common. A leading authority upon this subject/ is the case 
 of Weeks v. Sparke,(l) -which was an action for a trespass on the 
 
 the proprietors. But it did not appear whether the survey was made in fact on the land, 
 by marks, designation or admeasurement ; or whether it might not have been a mere 
 paper survey, drawn out into a map from calculations made under the warrant. After- 
 wards, from this time to 1768, various contracts or licenses of sale, and warrants of survey, 
 &c., were granted by the proprietors of this manor to settlers as within the manor ; and 
 others claimed to have located upon territorial lands without the manor ; but the latter, 
 as the proprietors claimed, had located, in truth, within the manor. There had been a 
 re-survey by the proprietors in 1768, in consequence of the one in 1722 having been 
 destroyed. This last comprehended all the settlers whose rights were in question in the 
 suit. That of 1722 comprehended only a part. A bill in equity was filed by all those 
 settlers against J. and W. Penn, the now legal proprietors, to compel a specific execution 
 of the several contracts made by those under whom they claimed ; and it became quite 
 material, in respect to the different interests of the complainants, to ascertain the true 
 bounds of the manor. 
 
 It appeared most abundantly from the acts of the proprietors intermediate 1722 and 
 1768, such as licenses to take up, and grants of specified tracts of land, and a warrant for 
 laying out a town ; warrants to agree for laud, and warrants to adj ust differences among 
 settlers, &c., that they all along supposed the manor to comprehend the lands covered by 
 the last survey. A letter was received in evidence respecting the boundary, directed to 
 one of the proprietors. The actual settlements and improveinents made, by licensed set- 
 tlers within the manor, and the surveys and settlements made around and adjoining the 
 different lines of the manor, were also in evidence. All these were intermediate the survey 
 of 1723 and 1768 ; and they all had reference to, or accorded with the boundaries in the 
 last survey. These things together showed the putative boundaries of the manor to 
 agree with the last survey as early as 1736, and from that time to 1814 ; and this although, 
 as Judge Washington expresses it, the two surveys varied extravagantly. He could find 
 in the proof no intermediate survey to account for this. And he supposes that the loca- 
 tions being made in such utter disregard of the first survey, might have arisen from the 
 lines of that survey not being actually measured, but guessed at, or some of the courses 
 only being run. On the subject of such surveys, followed by reputed and practical boun- 
 daries which conflicted with them, and the evidence receivable on this head, he proceeds : 
 " No gentleman of the profession, who is at all conversant with land trials, can be igno- 
 rant that the courses and distances laid down in a survey, especially if it be ancient, are 
 never in practice considered as conclusive ; but, on the contrary, they are liable to be 
 materially changed by oral proof, or other evidence tending to prove that the documentary 
 lines are not those actually run. How often have we known reputed boundaries, proved 
 by the testimony of aged witnesses, and even by hearsay evidence, established in oppo- 
 sition to the most precise calls of an ancient patent ? Such evidence has been constantly 
 received ; and distances have been lengthened or shortened without the slightest regard 
 to the calls of the patent. The reason is obvious ; it is not the lines reported, but the 
 lines actually run by the surveyor, which vests in the patentee the area included within 
 these lines. The survey returned, or the patent, is the evidence of the former ; natural 
 marks of reputation is, in almost all cases, the evidence of the latter. The mistakes com- 
 mitted by surveyors and chain carriers, more particularly in an unsettled country and 
 wilderness, have been so common, and are so generally acknowledged, as to have gived 
 rise to a principle of law, as well settled as any which enters into the land titles of this 
 country ; which is, that, when the niistake is shown by satisfactory proof, courts of law, 
 as well as courts of equity, have looked beyond the patent to correct it. It will readily 
 be admitted, that such evidence should be cautiously received, if it should have a prepon- 
 derating influence in determining the question of boundary. Subsequent locators look, 
 in the first instance, to the survey as made and returned, for a demarkation of the tract ; 
 with which they must not interfere. But if a mistake is apparent upon the face of the 
 survey, taken in Connection with the niitiiral and artificial marks on the ground, if. 
 the reputation of the neighborhood has assigned to the tract of land so surveyed, boun- 
 daries different from those delineated oh the survey returned, a subsequent location is so 
 far affected by notice of the real boundaries of the tract on which it would adjoin, that a 
 claimaut under it cannot, even in a court of equity, set up his posterior equitable title 
 against the legal or equitable title of the first locator. In short, he cannot assert that he 
 was a purchaser without notice, in the face of strong evidence to the contrary." Conn 
 and others v. Penn, 1 Pet. C. C. Rep. 496. 
 
 (1) 1 M. & S. 679. 
 
 The dedication of lands to a public use, presents a case in which the acts of the owner 
 and his declarations are allowed in evidence, so as to preclude him from exercising his 
 original rights over th6 dedicated premises (Hunter v. The Trustees of Sandy Hill, 6 Hill 
 E. 407) ; and the manner in which the premises have been used, may be proved to show 
 the fact as well as the character of the dedication. The acts and declarations of the 
 
SEC. in.] In Matters of Public and General Interest. 187 
 
 *228 plaintiif's close, parcel of a *common, <fcc. ; the defendant justified 
 for a j)rescriptive right of common at all times over the place, and 
 the plaintiff in his replication prescribed to use the place for tillage, &o., 
 qualifying the defendant's general right. To support this prescriptive 
 right of tillage, the plaintiff offered evidence of reputation, which was 
 received at the trial ; and the Court of King's Bench were of opinion, 
 that it had been properly received, on the ground that the right claimed 
 by the plaintiff, although claimed by prescription, was yet an abridgment 
 of the general right of common over the waste, and affected a large 
 number of occupiers within the district. Dampier, J., in delivering his 
 judgment observed : " It is not to be disputed, that in questions of public 
 rights reputation is admissible ; and the rule has been extended to other 
 rights which cannot be strictly called public, such as manors, parishes, and 
 a modus. A modus is, strictly speaking, a private right, but it has been 
 considered as public, so far as regards the admissibility of this species of 
 evidence, because it affects a large number of occupiers within a district. 
 Here the right claimed goes to abridge the rights of all the persons con- 
 cerned over a large district of common ; and, therefore, I think evidence 
 of reputation is admissible." 
 
 District modus. In the case of Rudd v. Wright,(l) on a motion for a 
 new trial of an issue from the Court of Exchequer, to try the validity of 
 a modus which was claimed in respect of a district (not being a legal 
 division of the country, as a hundred, parish, vill, or hamlet). Lord Lynd- 
 hurst was of opinion that evidence of reputation in favor of the modus 
 was properly received on the trial, upon the authority of the case of 
 Weeks v. Sparke ;(2) the district comprising a great number of farms, 
 
 owner are sufficient to complete the dedication, ivithout any writing on the subject ; for 
 the Statute of Frauds does not apply to the transaction. Godfrey v. City of Alton, 13 lU. 
 29. Once made, the dedication cannot he revoked so long as the premises are used for 
 the purpose for which the dedication was made (Adams v. Saratoga and Washington 
 RaUroad Company, 11 Barb. 414) ; but as soon as the public use of the premises ceases, 
 the owner's right to re-occupy them revives, the title remaining all the while in him. 
 C. C. Court V. Newport, 13 B. Mon. 538 ; Curtis v. Keesler, 14 Bafb. 511 ; The Mayor, &c., 
 of Macon v. Franklin, 12 Geo. 239. See also Gould v. Glass, 19 Barb. 179, 428 ; 18 Id. 
 222 ; Warren v. The President, &c., of Jacksonville, 15 111. 336. Where the owners of a 
 tract of land upon which there is a valuable water power, already improved by the con- 
 struction of aqueducts or races, lay out the premises into lots for mill sites and other 
 lots, with alleys between the lots and on the sides of the mill-race, with certain yards for 
 the accommodation of the business of the mills, and covenant with each other to make a 
 ■basin for the common use of such mill lots, and afterward divide the property ; and one 
 of the mill lots is conveyed with a reference to the map the purchaser acquires an ease- 
 ment in fee upon the undivided lands constituting such alleys, basin and wharf. The 
 transaction takes effect upon the principle of dedication in favor of the grantees of the 
 miU sites. Child v. Chappell, 5 Seld. 346. The same rule applies where lands belonging 
 to the state are laid out into streets and lots, and the lots transferred to individuals. City 
 of Oswego V. Oswego Canal Co., 2 Seld. 357. See note 520, vol. 2. In cases like these ' 
 the title does not ripen by user ; the conveyances under the circumstances operate as an 
 estoppel, upon the principle that to retract the promise implied by such conduct and upon 
 which the purchasers have acted would disappoint thfeir just expectations. 5 Seld. 356. 
 A dedication of land in a dty for use as a public square leaves in the owner a mere naked 
 fee, and vests the easement acquired by the public, in the city, wlrich becomes the trustee 
 of a use. Anderson v. The Rochester L. & N. F. R. R. Co., 9 How. 558. But the convey- 
 ance of land by a municipal corporation with reference to a map on which an opposite or 
 adjoining parcel is designated as a market, is not an irrevocable dedication of the parcel 
 so described for a market ; it is a mere reservation (Pitcher v. The N. T. & Erie R. R. Co., 
 6 Sand. 587), it cannot be converted into a dedication for use as a public square, though 
 used in that manner for over twenty years. 
 
 The case of Weeks v. Sparke, cited in the- text, has been much shaken by a late cage. 
 Earl of Danraven v. Llewellyh, 19 L. J. 388, Q. B. 
 
 (1) Before Lord Lyndhurst, C. B., in Bq. Ex. 11 July, 1833. 
 
 (2) Supra, p. 227. 
 
188 Of the Adniissihility of Hearsay [cH. viii. 
 
 and extending over more than two thousand acres, and the questions 
 applying to a great number of persons. (1) 
 
 Farm modus. On questions of farm modus, relating to individual occu- 
 piers, and strictly private interests, it should seem that hearsay evidence 
 of reputation in favor of the modus is not receivable. But there has been 
 some difference of opinion upon this point. It has generally been under- 
 stood in the Exchequer, that the evidence is inadmissible. (2) In an ancient 
 case(3) it was received ; and also in some modern cases, where, 
 *229 however, *the point was not much considered. (4) The weight of 
 authorities seems to be against the adihission of such evidence. (5) 
 
 It is to be observed, that the receiving of hearsay evidence is founded on 
 a principle of necessity, in consequence of the antiquity frequently belong- 
 ing to isarticular inquiries, and that although a custom must necessarily.be 
 immemorial, it is assuming the question in dispute, to say that a private 
 right of way, or common, and the like, is prescriptive and immemorial. 
 Even supposing a private right to have necessarily originated, if at all, 
 before the reign of Richard I, yet it may reasonably be expected, that in 
 the instance of any private right, the case should be sufficiently established 
 by modern use, without recourse to evidence of reputation ; whereas a 
 greater latitude may be allowed in the instance of public rights, which it is 
 not the interest of any individual in particular to guard from encroachment. 
 
 Hearsay as to private prescriptive rights, whether admissible. The 
 authorities in favor of the admission of this evidence are as follows : In 
 the case of Morewood v. Wood, (6) where the question related to a prescrip- 
 tive right, annexed to a particular estate, of digging stones on a waste, (7) 
 the Court of King's Bench was equally divided upon the point. 
 
 And a book of authority (8) lays it down broadly, that in questions of 
 
 (1) See also Williamson v. Thompson, 9 Price, 186, a township modus ; Donnison v. 
 Elsley, 1 M'Clel. & Y. 1, a modus for a district consisting of 374 acres. 
 
 (2) See by Lord Lyndhurst, C, in Wright v. Rudd, vM supra. In Wells v. Jesus 
 College, 7 C. & P. 384, such evidence appears to have been rejected by Alderson, B. 
 
 (a) Webb v. Potts, Noy, 44. In White v. Lisle (4 Madd. 314), this case was said to 
 stand alone, and to be too loose to be relied on. 
 
 (4) In Donnison v. Elsley (3 Eag. & Y. 1396, n.), evidence of reputation in the case of a 
 farm modus was read de bene esse; and similar evidence appears to have been received in 
 Wooley V. Brownhill, 1 M'Clel. 317. In Bullen v. Michel (3 Price, 399), which related to 
 a farm modus, much documentary evidence was adduced, and was treated as evidence of 
 reputation ; but most of the documents were of a public nature. 
 
 (5) See by Lord Kenyon, C. J., and Ashurst, J., in Morewood v. Wood, 14 East, 329, n. 
 In Reed v. Jackson (1 East, 356), Lord Kenyon appears to confine the admissibility of 
 evidence of reputation, to cases of public prescription. In Blackett v. Lowes (3 M, & S. 
 500), where evidence of reputation was tendered as to the right of the tenants of a par- 
 ticular copyhold estate to cut and sell wood. Lord EUenborough, C. J., said, that reputation 
 was out of the question, because the tenants right could only arise by some grant or deed. 
 In Richards v. Bassett (10 B. & C, 663), Littledale, J., said, that it was by no means clear 
 that evidence of reputation was admissible in matters of prescriptive right. He thought 
 it was not admissible to determine whether an individual had a right to the soil itself, or 
 only a right of common over it. In Weeks v. Sparko (1 M. & S., 691), Dampier, J., inti- 
 mates that reputation would not be evidence of a private right of way over a particular 
 field. In White v. Lisle (4 Madd. 314), the vice chancellor said, that in late times evi- 
 dence of reputation had not been teudeied in cases of prescription as to individual rights, 
 except as to rights of way. 
 
 (6) 14 East, 837, n. Lord Kenyon, C. J., and Ashurst, J., against the evidence ; Buller, 
 J., and Grose, J., for it. 
 
 (7) It did not appear whether the prescriptive right claimed was in derogation of the 
 right of common in the copyholders ; in which case it would seem from Weeks v. Sparke 
 (ut supra), that evidence of reputation was admissible. 
 
 (8) B. N. P. 295, citing Skinner v. Lord Bellamont, Worcester, 1744. And see th6 
 opinions of Buller, J., and Grose, J., in Morewood v. Wood, 14 East, 330, n. ; also of Grose, 
 J., 3 T. B. 709. In Price v. Littlewood ^3 Camp. 288), Lord EUenborough, C. J., admitted 
 proof of entries in a parish book, as evidence of the reputation of the parish respecting 
 the private right of pew. But he also assigned as a reason for admitting the evi- 
 
SEC. III.] As Evidence of Private and Prescriptive Rights. 189 
 
 *230 *preseription it is allowaMe to give hearsay evidence to prove general 
 reputation; and therefore that where the issue was on a right of 
 way over the plaintiff's close, the defendants were admitted to give evi- 
 dence of a conversation between persons not interested, then dead, wherein 
 the right to the way was acknowledged. 
 
 Hearsay not admissible as to private boundaries. Where a title to a 
 private right is not prescriptive, the principles upon which evidence of repu- 
 tation is admitted seem more completely to fail ; it cannot be said, in the 
 generality of such cases, there is a necessity for resorting to hearsay 
 testimony. The authorities confirm this opinion. Although evidence of 
 reputation is received of the boundaries of parishes or manors, which are 
 generally of remote antiquity, such evidence has been held to be inadmissi- 
 ble for the purpose of proving the boundary of a private estate. (1) The 
 boundaries of private estates are as likely to have been of recent as of 
 ancient date ; and are not so likely to have been publicly notorious. 
 
 In the case of Thomas v. Jenkins,(2) an action of replevin, where the 
 question was strictly as to the line of boundary between two adjoining 
 estates, the court held that evidence of reputation had been properly admit- 
 ted. But this was under peculiar circumstances, and in consequence of the 
 course of inquiry allowed by the counsel on both sides ; it having been 
 settled by admissions between the parties, that the only question to be 
 raised at the trial should be, of which of two sheepwalks the land in dispute 
 was parcel. A witness for the defendant, after speaking to the way in 
 which he used to keep cattle on one of the estates, said that the boundary 
 of the estate was the same as that of the hamlet. This was not objected to. 
 He was then asked whether he had heard from old persons, since deceased, 
 what was the boundary of the hamlet. The question was 
 *231 *objected to as an attempt to prove the limits of a private 
 estate by reputation ; but the evidence was received. It seems to 
 have been admitted by the counsel, and therefore assumed by the court as 
 an established fact, that the boundaries of the farm and the hamlet 
 were the same. The admission was unwarily made, and strongly 
 pressed ; but clearly, upon such an admission, the inference must 
 necessarily be, that any legitimate mode of proving the boundary of the 
 hamlet, was allowable for proof of the boundary of the farm, ; and, there- 
 fore, that reputation, which is proper evidence of a hamlet boundary, must 
 be admitted in this case as evidence also of the farm boundary. Patte- 
 Bon, J., said, "On this precise question" (meaning the issue settled 
 between the parties), " evidence of reputation was clearly not admissible ; 
 but such proof is receivable to show the boundary of a hamlet ; and that 
 
 dence, that the entries were made by church-wardens, upon a subject within the scope of 
 their ofHcial authority. See 'post. Vol. II, On the AAmissMlity of Fvhlic Writings, not 
 judicial. It may be observed that the right in question affected the general rights of 
 parishioners. In Davies v. Lewis (2 Chitt. R. 538), hearsay evidence was admitted in a 
 question of private right, as to the point whether a particular place was parcel of a sheep- 
 walk. But that case was compromised and not much argued. In Barnes v. Mawson (1 
 M. & S. 77), evidence of reputation was received as to what was new land within a manor. 
 In Rogers v. Allen (1 Camp. 310), judgments were admitted in a case of prescriptive right. 
 But the evidence was in the nature of acts in possession, and the like observations may 
 apply to the evidence of court rolls, and the judgments and allowances in Eyre, in Bid- 
 dulph V. Ather (2 Wils. 23). In Williams v. Goodchild (2 Eagle on Tithes, p. 440), Leach, 
 V. C., allowed as evidence in support of an exemption from tithes, claimed for a particular 
 estate, a catalogue, and particulars of sale, and also a map. His Honor said, that every 
 fact which is to be carried beyond time of memory may be proved as matter of reputation, 
 on account of the principls, that it is impossible to bring direct evidence as to such a fact ; 
 a proposition (it is conceived) much too large. In Anscombe v. Shore (1 Taunt. 262), the 
 right was prescriptive, but related to a matter of general interest to commoners. 
 
 (1) Clothier v. Cliapman, 14 East, 331, n. And see Donnison v. Elsley, 3 Eag. & Y. 1396. 
 
 (2) 6 A. & E. 535. 
 
190 Of the AdmissibiUty of Secmsay [ch. Tiii. 
 
 being so, I do not see how it could be excluded in the present case, when it 
 was established that the boundaries of the hamlet and of the /an» were the 
 same."(l) 
 
 Hearsay not admissible as to private title. The objection to receiving 
 hearsay testimony upon matters of private right, applies with still greater 
 force to those cases which are unsupported by any analogy to matters of 
 public or general interest ; as where the fact sought to be proved is not 
 matter of prescription or of boundary. Thus, in an ejectment, (2) where the 
 lessor of the plaintiff claimed the land as tenant in tail under a will, by 
 which the testator gave his son an estate for life, and the defendant claimed 
 as devisee of the ' son, the question was, whether the land in dispute was 
 part of the entailed estate, or had been purchased, by the son ; evidence of 
 reputation, that the land had belonged to Sir J. S., and had been purchased 
 of him by the father, the first testator, was held to be clearly inadmissible. 
 
 Private right or public duty. In like manner, evidence of reputation has 
 been rejected upon a question as to the usage in electing a schoolmaster, as 
 it related to a private right. (3) 
 
 So reputation has been rejected upon a question whether the tenants of a 
 particular copyhold estate had the right of cutting and selling wood,(4) or 
 whether the lord of a manor had a prescriptive right to all wreck within 
 the boundaries of the manor. (5) 
 
 In The King agt. Antrobus,i[6) on the trial of an information against 
 *232 a *sheriff of a county, for not executing a convict sentenced to death, 
 it was held, that a witness could not be asked whether he had heard 
 that it was the custom for the sheriff to be exempt from performing, or for 
 another person to perform the duty in that particular county, although 
 it had been proved that such other officer had in fact always performed it 
 within living memory. It was said that this was not a matter of public 
 interest, the public not being interested in the question, which officer was to 
 perform the duty. 
 
 It has been said that in the case of the Bishop of Meath v. Lord Belfield,(7) 
 in a quare impedit, after the plaintiff had given in evidence an entry in the 
 register of the diocese of the institution of one K. (in which entry there 
 was a blank where the patron's name was usually inserted), parol evidence 
 of the general reputation of the country was offered, that JK. was in by the 
 presentation of one under whom the defendant claimed ; and, on a bill of 
 exceptions, the evidence Was adjudged to be admissible, on the ground that 
 a presentation may be by parol, and that what commences by parolmay be 
 transmitted to posterity by parol ; and that this creates a general reputation. 
 But Lord Kenyon, C. J., adverting to this case,(8) said he admitted that 
 
 (1) See also Brisco v. Lomax, 8 A. & E. 198. 
 
 (2) Doe d. Didsbury v. Thomas, 14 East, 323. 
 
 (3) Withnel v. Gartham, 1 Esp. 324 
 
 (4) Blackett v. Lowes, 2 M. & S. 494, 500. 
 (5); Talbot V. Lewis, 1 C, M. & E. 495. 
 
 (6) 2 A. & E. 794. 
 
 Note 88.— Hearsay is admissible in the case of a-custom. Per Marshall, C. J., in Mima 
 Queen v. Hepburn, 7 Cranch, 296. (A custom or usage is a fact to be proved by testimony, 
 by persons who are acquainted with the locality or business to which it relates. Putnam 
 V. Tillotson, 13 Met. 517 ; Cope v. Dodd, 13 Penn. State R. 33; A present custom of busi- 
 ness manifestly must be proved by persons engaged in or acquainted with the business. 
 Isolated instances will not establish it (Gppe v. Dodd, m,pra) ; there must be a general 
 concurrence of action. Knowles v. Dow, 2 Foster (N. H,), 387. The mode of proving its 
 existence, and the number of witnesses necessary to be called, must depend upon the 
 circumstances of the case (Vail & Adams V. Rice, 1 Selden^ 151), and upon the object for 
 which it is sought ito be proved.) 
 
 (7) B. N. P. 295, cited by BuUer J., in E. v. Briswell, 3 T. E. 719 ; S. C, reported 1 
 WUs. 215. 
 
 (8) In B. V. Briswell, 3 T. E. 723. See also Tellard v. Shebbeare, 2 WUs. 366. 
 
SEC. iiij As Eoidence of Private and Prescriptive Mights. 191 
 
 a presentation might be by parol, and might be proved by parol— ^ that is, 
 by a witness who was' present and heard it ; but he denied that in such a 
 case common reputation could be given in evidence. " If it can," he added, 
 " why might not such evidence decide titles to estates, at least before the 
 Statute of Frauds, when no written instrument was required to make a good 
 feofiment of the greatest landed property in the kingdom." 
 
 There appears to be a conilict of authority upon the question' whether 
 evidence of reputation is admissible as to the- liability of the occupiers of 
 certain land to repair a road, ratione tenuroe. In The Kingagt. Gotton,(l) 
 it seems to have been assumed that such evidence was admissible, although 
 the particular evidence tendered was rejected upon ^mother ground. But 
 in the later case of the King agt. The Inhabitants of Wavertree,(2) similar 
 evidence was rejected. It was tendered on behalf of the defendants, 
 *233 but, as the verdict was returned in their favor, there was no *opportunity 
 of carrying the question any further. It is to be observed that, 
 although such evidence would establish a private liability, it wQuld, at the 
 same time, disprove the liability of the public. It is not, therefore; a ques- 
 tion of private liability per se, in which the, public are not interested. And, 
 as reputation is admissible equally ;to disprove a, public right as to establish 
 one, (3) so it would ^csem such evidence should be admissible to disprove a 
 public liability, in the same manner as to establish it. And, there seems to 
 be no good reason, why reputation should not be as gpod evidence to estab- 
 lish a liability to repair a road t^atione tem^ce, as it is in the case of a bridge 
 or a sea-walL(4) 
 
 Hearsay is, in .general, inadmissible to prove particular facts, unless 
 where such facts have become matter of general reputation. Thus, on a 
 question of parochial modus, hearsay evidence that a particular person, 
 since deceased,, paid a certain sum in lieu, of tithes, would not be admissi- 
 ble : but if the ■v\ritness says he has heard froifl old inhabitants that so much 
 per acre was always paid in lieu of tithes, or that it had always been the 
 custom to make such payments, that will be gpod evidence, for it does not 
 consist of hearsay of a particular fact,, but comes within the general rule of 
 evidence of reputation. (5) MacDonald, C. B,, said in one case : (6) -— " The 
 essence of reputation is, that if you prove a fact — as,, for instance, payment 
 of a sum of money — it must be accompanied with this, that, it was so paid 
 in consequence of a reputation, . If evidence is confined to the fact of pay- 
 ment, it is inadmissible, unless the tradition that came with it was a 
 reputation thatitihad g,lways,been the case." 
 
 But though hearsay of a custom to make certain payments is evidence, 
 hearsay that certain lands were formerly given to the vicar in lieu of tithes, 
 is not admissible ; (7) this being evidence of a particular fact, and being 
 confined to a particular occasion. Again, though reputation is good evi- 
 dence of the boundaries of a town, it is not admissible to prove that. houses 
 once stood where no^v: there are none. (8) 
 
 Upon a question whether a part of Lincoln's Inn was part of the parish 
 of St. Andrew Holborn, an ancient book of antiquities, relating to the 
 parish and collected by a churchwarden, was produced, and several entries 
 
 (1) 3 Camp. 444, before Dampier, J. 
 
 (2) 2 Mo. & R. 353, before Maule, J. 
 
 (3) See Drinkwater v. Pater, 7 C. & P. 181. ' 
 
 (4) See B. v.^ Sutton, 8 A. & E. 516 ; R. v. Leigh, 10 A. & E. 398. 
 
 (5) Harwood v. Sims, 1 Wightw. 113, 169 ; Mpseley v. Davies, 11 Price, 162 ; Qamons 
 V. Bernard, 1 Anstr. 298 ; Deacle v. Hancock, 13 Price, 226 ; Wells v. Jesus College, 
 Oxford, 7 C. & P. 284. 
 
 (6) In Harwood v. Sims, ut supra. 
 
 (7) Chatfield v. Fryer, 1 Price, 253. And see Leathes v. Nfewel, 4 Price, 355 ; 8 Price, 
 562 ; Crease V. Barrett, 1 C, M. & R. 919. 
 
 (8) Ireland v. Powell, Peake Ev. 14, cited in Chatfield v. Fryer, 1 Price, 256 ; and in R. 
 V. Bliss, 7 A. & E. 555. 
 
192 Of Searsay of PaHimlar Acts done [ch. tiii. 
 
 were tendered in evidence concerning the repairs of pews and the 
 *234 glazing *of windows. Ahbott, C. J., refused to receive this as evi- 
 dence of reputation, as it related only to particular facts. (1) But 
 entries in an old parish book, in which the names of the surveyors of the 
 highways were stated, have been admitted, upon the principle that it would 
 be° difficult to give other proof of persons being surveyors at the time in 
 question. (2) 
 
 Where the question is whether a road be public or private, the declara- 
 tion of a deceased person as to a certain fact having been. done (as the 
 planting of a tree) for the purpose of showing the boundary of the road, is 
 not admissible as evidence of reputation, or as a , statement accompanying 
 an act.(3) It might have been shown that a tree was planted on the sppt, 
 and that persons were accustomed to keep within the line pointed out by it ; 
 but a declaration that it was planted with a particular motive and object is 
 not evidence. (4) In like manner, declarations by deceased persons that they 
 had seen repairs done upon the road, will not be admissible upon such a 
 question. (S) 
 
 Perambulations. Perambulations, although they consist of particular 
 acts done (as the making of an ambit, digging turves, putting down posts, 
 &c.), and though they give rise to much hearsay evidence, are, j)roperly 
 speaking, only the exercise of a right. The custom of perambulating par- 
 ochial boundaries is notorious in all parts of England, it is recorded by all 
 text writers and has been confirmed by high judicial sanction. (6) It is usual 
 and perfectly consistent with principle, to admit what old persons since 
 deceased, who accompanied the perambulations, were heard to say on such 
 occasions respecting the boundaries. But there does not appear to be any 
 authority for admitting hearsay of particular acts done, as conducive to the 
 proof of boundary, even though it be delivered on the occasion of a peram- 
 bulation. In Weeks v. Sparke,(7) IliOrd EUenborough, C. J. observed, upon 
 the subject of perambulations, that they are in the nature of hearsay evi- 
 dence, not of particular acts done (as that such a turf was dug, or such a 
 post put down in a particular spot, — for that would amount to evidence of 
 ownership), but evidence of the ambit or survey of a particular place or 
 parish, and of what the persons accompanying the survey have been 
 *235 heard to say *and seen to do on such occasions. Le Blanc, J., 
 observed, in the same case, that the evidence of perambulations might 
 be considered in a certain degree as evidence of the exercise of a right, yet 
 that it had been usual to go further, and admit the evidence of what old 
 persons, since deceased, had been heard to say on those occasions. Entries 
 in parish books recording the fact, that perambulations had taken a particu- 
 lar line, have been held inadmissible. (8) 
 
 2. Of the forms in which hearsay is usually presented, in matters of 
 public or general interest. 
 
 In the next place it is proposed to consider the diiferent forms in which 
 evidence of reputation, upon matters of public or general interest, is usually 
 presented to the courts. 
 
 (ij Cooke V. Banks, 2 C. & P. 478. 
 
 (3) R. V. Pembridge (Inhabs,), Car. & M. 157. 
 (8) R. V. Bliss, 7 A. & E. 550. 
 
 (In this country the declarations of a deceased person have been frequently admitted, on 
 questions of boundary involving private rights, where the witness appeared to have had 
 the means of knowledge, and no interest in making them. Smith v. Powers, 15 N. Hamp. 
 546. See ante, note 87.) 
 
 (4) R. v. Bliss, 7 A. & B. 550. 
 
 (5) By Patteson, J., Id. 553. 
 
 (6) Per Cur. in Taylor v. Devey, 7 A. & E. 409, 415. 
 
 (7) 1 M. & S. 687, 689. 
 
 (8) Taylor v. Devey, 7 A. & E. 409. 
 
SEC. in.] As Proof of a General Right. 193 
 
 Old Documents. Reputation respecting public rights may be shown by 
 old deeds or other old documents, even though of a private nature, as well 
 as bjr the oral declarations of deceased individuals. (1) Thus where the 
 question was whether certain land was in the parish of A., or in that of B. 
 where the land was tithe free, ancient leases granted by the jincestors of 
 the plaintiff's landlord describing the land as being in the parish of B., 
 were held admissible as evidence of reputation, notwithstanding that such 
 ancestor had a direct interest in describing the land to be situated in that 
 parish. (2) 
 
 In the case of Cambridge Tolls, (3) a composition deed between the cor- 
 poration of Cambridge and the University, regulating the amount of payment 
 of tolls, was received as evidence of reputation of the existence of the tolls. 
 It appeared that the deed had not been exactly followed in practice ; but it 
 was held that this objection did not apply to its admissibility. So deposi- 
 tions in ancient suits have frequently been produced to prove reputation. (4) 
 
 Manorial Documents. A customary of a manor delivered down with the 
 court rolls from steward to steward, and purporting to be ex assensu omnium 
 tenentium, although not signed by any person, has been held to be good 
 evidence to prove the course of descent within a manor. (5) So the 
 *236 presentment of a custom of *a manor by the homage, entered on 
 the rolls of the manor, is receivable. (6) So ancient answers of con- 
 ventionary tenants of a manor, stating the rights of the lord of the manor, 
 and made to interrogatories put to them by commissioners, but which inter- 
 rogatories were lost, have been received in evidence. (7) 
 
 A presentment in a manor court, setting forth the boundaries of a manor, 
 has been adjudged to be admissible evidence of boundary ; although a part 
 of the document, but not connected with the subject of the particular 
 boundary, appeared to have been cut off. (8) 
 
 In an action by a copyholder against a freeholder of the manor, for the 
 disturbance of the plaintiff's right of common, (9) by reason of the defend- 
 ant surcharging the common (the plaintiff setting up a restricted right), 
 parchment vrritings produced on the part of the defendant from among the 
 muniments of the manor, purporting to be signed by many persons, copy- 
 holders, and stating an unlimited right of common in the commoners (which 
 had been found inconvenient, and they had therefore agreed to stock it in a 
 restricted manner), were held admissible as evidence of reputation respect- 
 ing the general right at that period, and in disproof that the restricted right 
 originated in prescription ; there being no evidence that the plaintiff's tene- 
 ment had belonged to any of those who had signed the writings, so as to 
 render them admissible against him on that ground. 
 
 Maps. It would seem that maps, stating the boundaries of manors or 
 parishes, would be receivable in evidence to prove such boundaries, provided 
 it appeared that they had been made by persons having adequate knowl- 
 
 (1) This subject will receive further illustration in that part of the work which treats 
 of documentary evidence. 
 
 (2) Plaxtou V. Dare, 10 B. & C. 17. See also Arundell v. Falmouth (Lord) 2 M. & S. 443 ; 
 Freeman v. Phillipps, 4 M. & S. 486 ; Coombs v. Coethier, 1 M. & M. 398 ; Barnes v. Maw- 
 son, 1 M. & S. 78 ; Anglesea (Marq.) v. Hatherton (Lord), 10 M. & W. 218 ; Bullen v. 
 Michel, 4 Dow, 397 ; Clarkson v. Woodhouse, 5 T. R. 412, n.; S. C, 3 Doug. 189. 
 
 (3) Brett v. Beales, 1 M. & M. 416. See also Curzon v. Lomax, 5 Bsp. 60. 
 
 (4) Freeman v. Phillipps, 4 M. & S. 493. And see the cases of the Settle and Leeds 
 Mills, cited by Lord EUenborough, C. J., Id. 
 
 (5) Denn v. Spray, 1 T. R. 466. 
 
 (6) Roe V. Parker, 5 T. R. 26. See Lord Kenyon's remarks as to the credit due to such 
 presentments. See also Arundell v. Falmouth, (Lord), 2 M. & S. 441. 
 
 (7) Crease v. Barrett, 1 C, M. & R. 923. See Evans v. Taylor, 7 A. & E. 617. 
 
 (8) Evans v. Rees, 10 A. & E. 151. See also E. v. Leigh, 10 A. & E. 398, 400, 404, 411, 
 
 (9) Chapman v. Cowlan, 13 East, 10. 
 Vol. L 25 
 
294 Of the Admissibility/ of Ancient Documents [ch. tiii. 
 
 edge. In the cases, however, where maps have been admitted in evidence, 
 their admissibility has depended on the ground of their being public docu- 
 ments, or of their being in the nature of admissions. Where they relate 
 merely to the boundaries of private property, there is no ground for receiv- 
 ing them, however ancient. (1) 
 
 In a late case of an indictment against a parish for the non-repair of a 
 highway, (2) in order to show that the highway was not within the parish, 
 a map was produced, which had been made, about thirty years before, by a 
 surveyor from information derived from an old parishioner, who had pointed 
 out the boundaries to him ; and Erskine, J., held, that if proof were 
 *22Y given of the informant's death, the map would be admissible as *evi- 
 dence of reputation, although it was produced from the chest of the 
 parish that was indicted. 
 
 In an older case, (3) upon a question of highway, Lord Kenyon, C. J., 
 rejected the evidence of a copperplate map, purporting to have been made 
 by the direction of former churchwardens. But there does not appear to 
 be any valid objection to the reception of such evidence. 
 
 Verdicts, dkc. On questions of immemorial customary rights, and on 
 questions of public or general interest, it seems to be settled that verdicts, 
 judgments and decrees in suits in which the same right was in litigation, are 
 admissible in evidence, although the suits were between other parties. (4) 
 
 In the case of Reed v. Jackson, (5) where, in an action of trespass, issue 
 was joined on a plea of public right of way, the plaintiff was allowed to 
 give in evidence a verdict found in his favor against a different defendant, 
 upon an issue joined as to the existence of the same right of way. Law- 
 rence, J., is reported to have said in this case: — "Reputation would have 
 been evidence of the right of way in question; a fortiori the finding of 
 twelve men upon their oaths." 
 
 Formerly, when juries were summoned de vicineto, as being cognizant of 
 the facts in dispute, and when their functions were less limited than at 
 present, (6) their verdicts would be entitled to greater weight on the score 
 of reputation than they are now. Still, it has been established by a long 
 course of authorities, (7) that verdicts, as well as judgments and decrees 
 (which latter would not have the same weight in this respect as verdicts), 
 are admissible as evidence of reputation. If not amounting to reputation 
 itself, they are as good evidence as reputation. (8) And in all eases involv- 
 ing a general right, where reputation is evidence (as in cases in which all 
 the queen's subjects are concerned), a verdict or a judgment — although 
 between other parties —is evidence ; not, indeed, of any specif o fact existing 
 at the time, but as evidence of the most solemn kind of an adjudication of 
 a competent tribunal upon the state of facts, and the question of usage, at 
 that time. (9) 
 
 In an early case, (10) where the question discussed was concerning the 
 right of the city of London to take certain tolls upon malt brought 
 
 (1) With respect to private maps, see Doe d. fluglies v. Lakin, 7 C. & P. 481 ; Sir J. 
 Bridgman v. Jennings, 1 Ld. Raym. 734 ; Donnison v. Elsley, 3 Baglo & Y. 1396, n. 
 
 (2) R. V. Mflton (Inliabs.), 1 C. & K. 48. 
 
 (3) Pollard v. Smith, Pealie, 18. 
 
 (4) See Brune v. Thompson, Car. & M. 34. 
 
 (5) 1 East, 'inQ. 
 
 (6) See by Alderson, B., in Pim v. Curell, 6 M. & W. 254. 
 
 (7) See by Lord Denman, C. J., in Evans v. Rees, 10 A. & E. 156. 
 
 (8) Bv Littledale, J., in Brisco v. Lomax, 8 A. & E. 211. 
 
 (9) Bv Lord Abinger, C. B., in Pim v. Curoll, 6 M. & W. 268. 
 
 (10) City of London v. Clerlce, Carth. 181. See also Cost v. Birkbcck, 1 Doug. 318 ; The 
 case of the Manchester Mills, 1 'Doug. 221, n. ; Somerset (Duke of) v. Prance, 1 Str. 659 ; 
 Clarkaon v. Woodhouse, 5 T. R. 412 ; Travis v. Chaloner, 2 Eag. & Y. ; Biddulph v. Ather, 
 2 Wils. 23. 
 
SEC. in.] As Proof of a General Eight. 195 
 
 *238 to *London Ky west-country barges, it was held that verdicts 
 against certain owners of barges were admissible in evidence against 
 other owners who were neither parties nor privies to the former records. 
 The like evidence has been received upon a question respecting the right of 
 electing church-wardens. (1) 
 
 It does not affect the admissibility of such evidence, though it may 
 diminish its weight, that a judgment has been suffered by default, and 
 does not appear, though of recent date, to have been followed up by execu- 
 tion or the payment of damages,(2) or even that the verdict has not been 
 followed up by a judgment or decree. 
 
 Thus, in the case of Brisco v. Lomax,(3) on a question as to the boundary 
 between the manors of A. and B., the finding of a jury under an ancient 
 commission from the Duchy Court of Lancaster, for the purpose of deter- 
 mining the boundary between the manors of B. and C, on a petition of the 
 owners of the two last-mentioned manors, representing that the boundary 
 was uncertain, and that suits were likely to arise between them, was 
 adjudged to be admissible evidence; it appearing that the three manors of 
 A., B., and C. were so situated with reference to each other, that the ascer- 
 taining of the boundaries between B. and C. would throw light upon the 
 boundaries between A. and B. ; although the verdict of the jury did not 
 appear tcS have been followed up by a decree or judgment. "For," as 
 Coleridge, J., said, "on a question of manorial boundary between two 
 owners, reputation is admissible ; and verdicts are evidence, where reputa- 
 tion is admissible, between third parties. The necessity of a decree or 
 judgment to render the verdict admissible, exists only where it is sought to 
 bind the parties conclusively by the finding ; but here the verdict is not 
 offered as conclusive evidence, but as evidence m the nature of reputation." 
 
 Judgments, decrees and orders. In an action by the lord of a manor 
 against a copyholder for trespassing on his free warren,(4) a judgment on a 
 quo warranto brought against a former owner of the manor, wherein the 
 then defendant pleaded, and the attorney-general confessed a prescriptive 
 title to the franchise of free warren as appurtenant to the manor has been 
 held to be evidence for the plaintiff in support of the right of free warren 
 by prescription; as being the judgment of a competent court upon a matter 
 of a public nature, which concerned the crown and the subject. 
 
 On the trial of an issue, whether the deputy oyster masters of the city of 
 London have an immemorial customary right as claimed by them, (5) 
 *239 a *decree of the Court of Exchequer, relative to the matter in issue, 
 has been held to be admissible in evidence, upon the same footing as 
 a verdict is admissible on a question of custom. If the decree has a ten- 
 dency to prove any fact material to the issue, it is admissible. 
 
 In like manner, decrees and orders of other competent tribunals are 
 admissible as evidence of reputation. 
 
 Thus, orders of commissioners of sewers requiring landowners to repair 
 sea-walls, will be evidence upon an issue as to the liabilityof a party to 
 make such repairs ; and, if they are of ancient date, it will be presumed 
 that they have been duly acted upon. (6) 
 
 But a decree or order, to be admissible, must be final ; mere interlocutory, 
 orders will not be evidence. 
 
 Thus, in the case of Pim v. Curell and others,('?) in an action for the 
 
 (1) Berry v. Banner, Peake N. P. C. 157. 
 
 (2) Carnarvon (Earl of) v. Tillebois, 13 M. & W. 318, 329, 833. 
 
 (3) 8 A. & E. 198. 
 
 (4) Carnarvon (Earl of) v. Villebois, 13 M. & W, 813, 331. 
 
 (5) Laybourne v. Crisp, 4 M. & W. 330, 837. 
 
 (6) R. V. Leigh, 10 A. & E. 398. 
 
 (7) 6 M. & W. 384, 366. 
 
196 Of Qualifications for Admissibility of Hearsay. [ch. viii. 
 
 infringement of a right of ferry, ancient proceedings in the Court of 
 Chancery of the duchy of Lancaster, containing orders made by the court 
 in the matter of an information relating to the ferry (the ultimate result of 
 which proceedings did not appear), were offered in evidence on the part 
 of the plaintiff, and received at the trial; but the Court of Exchequer 
 adjudged the order to be inadmissible, inasmuch as it was a mere inter- 
 locutory order, and did not involve any judgment upon the facts or on the 
 rights of the parties. 
 
 But this rule as to the admissibility of verdicts and other judicial docu- 
 ments as evidence of reputation, does not extend to awards, even in cases 
 where the cause has been referred by order of a judge at Nisi Prius ; as the 
 authority of an arbitrator is entirely derived from the consent of the parties 
 to the reference ; and the award is but the opinion of the arbitrator, formed 
 upon the result of evidence laid before him, generally in private. (1) 
 
 Nor will a verdict or other judicial document be receivable, unless it 
 appear that the tribunal was acting under legal authority. 
 
 Thus, upon a question respecting the jurisdiction of the Court of Session 
 of the county of Chester,(2) an order and decree upon the subject by the 
 Lord High Treasurer and certain other public functionaries of the kingdom 
 (not forming any court known to the laws), was held inadmissible as evi- 
 dence of reputation, because (as was said by Lord TenterdSji, C. J.) 
 declarations are only evidence of reputation, when made by those who 
 have a personal knowledge of the fact ; whereas, in the case in question, 
 the persons acting as judges had no knowledge of the fact, except what 
 
 was derived in .the course of the proceedmg. 
 *240 *3. ' Of the qualifications with which hearsay is received in matters 
 of public and general interest. 
 
 It is, in the next place, proposed to consider the qualifications under 
 which evidence of reputation is receivable upon matters of public and 
 general interest. 
 
 Caution necessary. It may be remarked, that judges have differed in 
 opinion concerning the weight to be given to evidence of reputation. There 
 are several judicial remarks of a very strong nature to be met with, which 
 show, at least, that such evidence is open to much observation calculated to 
 weaken its effect. Lord Ellenborough, C. J., has observed : (3) " Reputation 
 is, in general, weak evidence ; and when it is admitted, it is the duty of the 
 judge to impress on the minds of the jury how little conclusive it ought to 
 be, lest it should have more weight with them than it ought to have." 
 And Grose, J., has also remarked, (4) that this kind of evidence ought 
 to be very cautiously admitted. On the other hand, Wood, B., on one 
 occasion(5) expressly dissented from Lord Ellenborough's opinion, and said 
 that upon questions of moduses, reputation was entitled to great weight ; 
 and Richards, C. B.,(6) has spoken of reputation as having great weight and 
 effect. The force of these observations, as well as the value of the evidence 
 itself, must of necessity vary according to the peculiar circumstances of 
 each case. 
 
 The first qualification to be noticed, with respect to receiving evidence of 
 reputation upon matters of public and general interest, is, that the state- 
 ments should have been made by persons likely to possess a competent 
 knowledge of the facts to which their statements relate. It has been sup- 
 posed, that this qualification must necessarily be satisfied, where the matter 
 
 (1) Evans v. Bees, 10 A. & E. 151, 155. See also B. v. Cotton, 3 Camp. 444. 
 
 (2) Bogers v. Wood, 2 B. & A. 245. 
 
 (8) In Weeks v. Sparke, 1 M. & S. 686. 
 (4^ In Morewood v. Wood, 14 East, 830, 
 (6) In Bobinson v. Williamson, 9 Price, 136. 
 (6) In Moseley v. Davies, 11 Price, 162. 
 
SEC. III.] Competent Knowkdge of Witness to Hearsay, 197 
 
 is of public interest, because, as Lord Kenyon, C. J., has observed, (1) all 
 mankind being interested therein, it is natural to suppose that they raay be 
 conversant with the subject, and that they should discourse together about 
 it, having all the same means of information. And Lord Ellenborough, C. 
 J., has stated it to be the general understanding upon ■which the decisions 
 of the courts have proceeded, " that upon questions of public right all are 
 interested, and must be presumed conversant with them."(2) 
 
 *241 ^Distinction between public and general rights. In a modern case,(3) 
 the court observed, it was clear that hearsay evidence upon some 
 subjects could not be received, unless with a qualification that it came 
 from persons who had a special interest to inquire ; that in cases of pedi- 
 gree the line was clearly defined ; and that in cases of rights or customs, — 
 which are not, properly speaking, public, but of a .general nature, and con- 
 cern a multitude of persons (as questions with respect to boundaries and 
 customs of particular districts), though the rule is not so clearly laid down, 
 it seems that hearsay evidence is not admissible, unless it is derived from 
 persons conversant with the neighborhood. The court further observed, 
 that where the right is really public (a claim of highway for instance, in 
 which all the king's subjects are interested), it seemed difficult to say that 
 there ought to be any such limitation, and the court were not aware that there 
 was any case in which it had been laid down, that such a limitation existed ; 
 that in a matter in which all were concerned, reputation from any one 
 appeared to be receivable ; but of course it would be almost worthless, unless 
 it came from persons who were shown to have some means of knowledge, 
 as, by living in the neighborhood, or frequently using the road in dispute. 
 And in that particular case, which related to a custom, in which all the 
 king's subjects had not an interest, but only such as chose to become adven- 
 turers in mines within a certain district, it was said that hearsay from per- 
 sons wholly unconnected with the place in which the mines were found would 
 be of no Rvalue, and pr.obably altogether inadmissible. But it was held, 
 that the hearsay of persons under whose estates the minerals lay, with res- 
 pect to which the custom existed, was admissible ; inasmuch as they were 
 sufficiently connected with the subject, though not concerned in mining, nor 
 receiving the dues of mines. 
 
 In Rogers v. Wood, (4) before cited, it has been seen that a document, 
 purporting to be a decree of certain public functionaries who had no 
 authority as a court, was held to be inadmissible as evidence of reputation, 
 on a question whether the city of Chester, before it was made a county of 
 itself, formed a part of the county palatine ; because those persons from 
 their situations had no peculiar knowledge of the fact. 
 
 In one case, (5) Le Blanc, J., lays stress upon the circumstance that the 
 evidence of reputation in that case proceeded from persons who had been 
 conversant with the neighborhood where the waste lay to which their state- 
 ments referred ; and that no evidence was received, except from persons 
 connected with the district then in question. However, actual inhabitancy 
 
 in the place of which the boundaries are in dispute is unnecessary. 
 
 *242 *In another case,(6) justices of the peace, at the sessions of the county 
 
 within which the district was alleged to be, were considered, on 
 
 account of the character and nature of their office, without proof of their 
 
 being residents, to have sufficient connection with the subjects in dispute to 
 
 (1) In Morewood v. Wood, 14 East, 339, u. 
 (3) In Weeks v. Sparke, 1 l\f . & S. 688. 
 
 (3) Crease v. Barrett, 1 C, M. & B. 937. 
 
 (4) 3 Bing. 86 ; Bupra, p. 339. 
 
 (5) Weeks v. Sparke, 1 M. &«. 688, 689. 
 
 (6) Newcastle (Duke) v. Broxtowe (Hundred), 4 B. & A. 273. 
 
198 Competent Knowledge of Witness to Hearsay. [ch. tiii. 
 
 render the statements in their orders (as to the locality of Nottingham Cas- 
 tle) admissible evidence of reputation. 
 
 On a question of parochial or manorial boundary, the declarations of old 
 persons, deceased, are admissible, though they were parishioners, and 
 claimed rights of common on the wastes, which their declarations had a 
 tendency to enlarge, (ij And on a question of parochial modus, it was 
 allowable to give in evidence the declarations of deceased parishioners and 
 occupiers of lands in the parish who were liable to pay tithe. (2). In Crease 
 V. Barrett,(3) certain answers of conventionary tenants were objected to, as 
 not being admissible against the freeholders of a manor, to whom it was 
 said they had an adverse interest, and if'was contended that all the cases 
 in which the hearsay of copyholders had been received, related to questions 
 between lord and copyholder, or copyholder and copyholder. The answers, 
 however, were held to be admissible evidence. 
 
 Hearsay inadmissible in questions of private rights. The probable want 
 of competent knowledge in the person whose hearsay is admitted, is usually 
 alleged as the ground for rejecting such evidence, respecting matters of 
 private interest. "How is it possible for strangers," said Lord Kenyon, 
 C. J., "to know anything of what concerns only private titles?" (4) Even 
 if the evidence were confined to statements of persons immediately inter- 
 (5sted in the private rights in question, it may be observed, that in cases of 
 private right, incorrect statements would be less likely to be checked and 
 contradicted at the time, than where (as in matters of general interest) they 
 are supposed to be addressed to persons conversant with the subject, who 
 have an interest to inquire into it, with the means of investigation in their 
 
 power. (5) 
 *243 *In Talbot v. Lewis, (6) the answer of tenants of a manor to a com- 
 mission issued by the lord of the manor, in which answer it was 
 stated that the lord was entitled to wreck, was rejected, on the ground that 
 the right was a private right, of which the parties making the declarations 
 possessed no pecviliar means of knowledge. 
 
 Position of parties presumed to he as stated in ancient documents. Where 
 proceedings in an ancient suit are produced as evidence of reputation upon 
 matters of public or general interest, it may generally be presumed that 
 the parties to the suit and the witnesses were actually in the respective 
 capacities which they. purport to have been, without proving this by evi- 
 dence dehors the proceedings themselves. (7) Thus, in Freeman v. 
 
 (1) NichoUs V. Parker, 14 East, 331, n. 
 
 (2) Harwood v. Sims, 1 Wightw. 113 ; Moseley v. Davies, 11 Price, 162, 180 ; Deacle v. 
 Hancock, 13 Price, 226. See what is said ty Graham, B., in 13 Price, 236. 
 
 (3) 1 C, M. & B. 927. 
 
 (4) By Lord Kenyon, C. J., in MorewoOd v. Wood, 14 East, 339, n. Lord Kenyon applies 
 this observation also to private customs. Lord Ellenborough, C. J., in Weeks v. Sparke 
 (1 M. & S. 686), observes : " It is said that, npon questions of public right, all are inter- 
 ested, and must be presumed conversant with them ; and that is the distinction taken 
 between public and private rights." 
 
 (5) It will be seen afterwards that no objection arises from the circumstance of the 
 declarant being in pcm jure with the party who nses the declaration. It seems that 
 the loss of letters patent for the Royal Grant, a tract of many thousand acres now occu- 
 pied by many thousand persons, may be proved by tradition, by witnesses possessing 
 competent knowledge. McKinnon v. Bliss, 31 N. Y. Rep. 306. 
 
 Evidence from ecclesiastical courts and old documents may be consulted and received 
 In evidence for the purpose of ascertaining the pecuniary rights of persons holding official 
 places. Stephenson v. Higginson, 18 Eng. Law & Eq. 50 ; Show bridge v. Clark, 32 Id. 435. 
 
 (6) 1 C, M. & R. 497. 
 
 (7) A stricter rule has been laid down in some pedigree cases, vide infra, sect. 3, tho 
 Banbury and Berkeley Peerage Cases, The same point occurs in regard to declarations 
 against interest, infra. See Davies v. Morgan, 1 C. & J. 591 ; AdamtUwaite v. Synge, 1 
 Stark. B. 183, 189 ; S. C, 4 Camp. 872 ; Slane Peerage, 5 01. & Fin, 33. 
 
SEC. III.] As to Proof of Modern Use. 199 
 
 Phillipps,(l) an action by a copyholder against the lord of a manor, in 
 which the defendant gave in evidence the proceedings in a suit in equity 
 in the time of King William III, brought by a copyholder of the same 
 manor against the then lord, it was held that no evidence aliunde was 
 requisite to make the proceedings admissible. Bay ley, J., said : " We must 
 assume at this time of day, that the bill was not a mere fabrication, but 
 was really filed by such a copyholder against the lord, and that the trial was 
 had, and the depositions made between such parties as were really liti- 
 gating their rights in the characters claimed and disclosed on the record." 
 And with respect to the depositions the same judge observed: "These I 
 do not look upon merely as the declarations of persons unconnected with 
 the subject, but as the depositions of persons, made by them in the charac- 
 ter of witnesses brought forward by the copyholder, whose interest it was 
 to put foremost such witnesses as were best able to depose to the matter in 
 dispute. Why am I to assume that the copyholder brought forward wit- 
 nesses who were ignorant ? I do npt agree that it was necessary to prove 
 the witnesses to have been copyholders, in order to let in their testimony. 
 The plaintiff's witnesses in the last trial do not all appear to be copyholders, 
 yet as they were present at the holding of courts, and therefore knew what 
 passed, they were competent to speak to that. So in the former suit I can- 
 not infer that they were incompetent to have a knowledge of the facts they 
 deposed to ; on the contrary, it is to be presumed they had a competent 
 knowledge, being brought forward as witnesses by a copyholder." Lord 
 Ellenborough, C. J., in the same case, observed : " Considering the depo- 
 sitions as made in a suit, which may now be said to be lost in remote 
 
 antiquity, we should give this record but very little effect, if we 
 *244 did not attribute to it verity in many of the particular *matters 
 
 which it contains; such as, that the parties litigant were clothed 
 with the rights in which they profess to stand, and were agitating the 
 claim, put forward on the record." 
 
 Proof of modern exercise of right. Another qualification, or cautionary 
 rule, in receiving hearsay evidence in matters of public or general interest, 
 has been supposed to be, at least where the nature of the case admits of it, 
 that a foundation for it should be laid by proving acts of modern enjoy- 
 ment. Le Blanc, J., in speaking of the manner in which matters of this 
 nature are to be proved, says,(2) "First they are to be proved by acts of 
 enjoyment within the period of living memory ; and when that foundation 
 is laid, then inasmuch as there cannot be any witnesses to speak to acts of 
 enjoyment beyond the time of living memory, evidence is to be admitted 
 from old persons of what they have heard other persons of the same 
 neighborhood, since deceased, say respecting the right." Again, " After a 
 foundation is once laid for the right by proving acts of ownership, the 
 evidence of reputation becomes admissible." And Buller, J., in another 
 case, observed, (3) "Thus far I agree with Lord Kenyon and Mr. Justice 
 Ashurst, that in no case ought evidence of reputation to be received, 
 except a foundation be laid, by other evidence, of the right." 
 
 But in a later case, (4) in answer to an observation, that all evidence 
 of reputation was inadmissible, unless confirmed by proof of facts, it was 
 said that such proof was not an essential condition of its reception ; but, 
 
 (1) 4 M. & S. 495. 
 
 (2) In Weeks v. Sparke, 1 M. & S. 688. 
 
 (3) In Morewood v. Wood, 14 East, 330, n. And see Ratcliff v. Chapman, 4 Leon. 843, 
 commented on in 5 T. R. 33. In White v. Lisle (4 Madd. 314), the vice-chancellor said, 
 that evidence of reputation was only admitted in confirmation of actual enjoyment, and) 
 not against it. 
 
 (4) Crease v. Barrett, 1 C, M. & B. 937. 
 
200 -4s to Hearsay post litem motam. [ch. viii. 
 
 that it was only material as affected tlie value of the evidence when 
 received. (1) 
 
 Where the subject matter of the question does not, from its nature, 
 admit of acts of enjoyment, as in a question of parochialty, proof of 
 reputation, though unaccompanied by evidence of acts done, is admissible. 
 On a question respecting the custom of descent within a manor, it has 
 been held that reputation is admissible, without showing any instances 
 of its having been put in use : (2) for were it otherwise, if no instances were 
 to happen within the memory of man, and the old court rolls were to be 
 lost, the custom itself would be entirely destroyed. (3) And in one case, 
 Lord Tenterden, C. J., intimated an opinion that the existence of a manor 
 might be proved by reputation alone, without evidence of the exercise of 
 
 any manorial rights. (4) 
 *245 *And it does not seem to be necessary that statements of opinion 
 
 upon any subject by deceased persons, should expressly appear to be 
 founded upon reputation derived from others ; thus, on an issue whether or 
 not certain land, in a district repairing its own roads, was a common high- 
 way, it has been held to be admissible evidence of reputation (though 
 slight), that the inhabitants held a public meeting to consider of repairing 
 such way, and that several of them, since dead, signed a paper on that occa- 
 sion, stating that the land was not a public highway; there being at the 
 time no litigation on the subject. (5) 
 
 Rule with reference to the lis mota. The next qualification in receiving 
 hearsay evidence of matters of public or general interest is, that declarations 
 made by persons since deceased are not receivable, if they were made post 
 litem motam,. 
 
 In the Roman law the term lis mota appears to have been applied strictly 
 to the commencement of a suit ; but in the English law the term Us is not 
 so confined in its application, but is taken in its primary meaning of a dis- 
 pute or controversy. (6) In our law therefore, declarations of deceased per- 
 sons, made after a controversy has arisen touching the matter to which they 
 refer, are inadmissible. (7) 
 
 The admissibility of such traditionary evidence at all, is founded upon 
 the presumption that the statements given in evidence are the natural 
 effusion of the party, upon an occasion when his mind stands even, without 
 bias to exceed the truth or fall short of it. (8) But this foundation fails 
 where a controversy concerning any matter has already commenced. State- 
 ments connected with such matters are then considered as made under a bias, 
 and even though made under the sanction of an oath, they are not free from 
 suspicion, the absence of which is necessary to insure their admissibility. (9) 
 
 In one case, which was an issue out of chancery,(10) Alderson, B., consid- 
 ■ered that the commencement of the controversy must be taken to be the 
 larising of that state of facts on which the claim is founded, without any- 
 
 (1) There was, however, sufficient proof of enjoyment given in that case. 
 
 (2) Beebee v. Parker, 5 T. R. 26, 81 ; Doe'd. Foster v. Sisaon, 12 East, 02. 
 
 (3) By Grose, J., 5 T. R. 32 ; Roe v. Jeffery, 2 M. & S. 92 ; Doe v. Mason, S Wils. 63. 
 
 (4) 2 Stark. R. 466. This was ruled also by Lord Kenyon, C. J., in Curzon v. Lomax 
 .'6 Esp. 60. 
 
 f5) Barraclough v. Johnson, 8 A. & E. 99. 
 
 (6) By Lawrence, J., in the Berkeley Peerage Case, 4 Camp. 411. " PhUosopU mtatem 
 in lilibua conterunt." Cic. cit. Ibid, in, not. 
 
 (7) See by Mansfield, C. J., in the Berkeley Peerage Case, 4 Camp. 417. By Lord 
 Brougham, C in Monckton v. Att. Gen., 3 Russ. & M. 161. 
 
 (8) By Lord Eldon, C, in Whitelocke v. Baker, 13 Ves. 514. See also R. v. Cotton, 3 
 *Camp. 446, by Darapier, J. 
 
 (9) See the cases cited in the last two notes, and Richards v. Bassett, 10 B. & C. 657. 
 
 (10) Walker v. Countess Beauchamp, 6 C. & P. 553, 561. This was a case of pedigree. 
 
SEC. III.] As to Hearsay post litem motam. 201 
 
 thing more; and his Lordship said on another occasion, (1) that his 
 *246 *ruling had been upheld by Lord Cottenham, C. But it seems 
 doubtful -whether this is a correct exposition of the doctrine as to 
 lis mota.{2) 
 
 It was laid down by Lawrence, J., (3) with regard to declarations of persons 
 deceased, respecting questions of right of way, rights of common, and other 
 matters depending upon usage, that, according to his experience, whenever 
 a witness had admitted, that what he was going to state he had heard 
 after the beginning of the controversy, his testimony had been uniformly 
 rejected. (4) This qualification applies equally to hearsay evidence in mat- 
 ters of pedigree : and as almost all the cases, in which the qualification has 
 been discussed, have been on questions of pedigree, the subject will be more 
 conveniently considered in the next section, which treats of the admissibility 
 of hearsay evidence in that class of cases. 
 
 It has been seen (5) that an award is not admissible as evidence of repu- 
 tation, upon the ground that it is the mere private opinion of the arbitrator. 
 It seems that its admissibility is also affected by the consideration of its 
 being a proceeding held post litem motam. 
 
 In the case of the King agt. Cotton, (6) where the question was whether 
 the occupier of a particular farm was liable to the repair of a public road, 
 and to prove the aflEirmative an award was produced, which had been made 
 some years before, when the same question was the subject of dispute 
 between a former occupier and the township where the lands were situated, 
 the evidence was rejected as inadmissible. The very submission, observed 
 Dampier, J., shows that the question was then agitated between the town- 
 ship and the occupier ; and as the account which deceased witnesses might 
 have given to the arbitrator on that occasion could not have been received, 
 because the declarations were made post litem, motam,, so the opinion of 
 the arbitrator formed upon such testimony could be entitled to no more 
 
 credit. 
 *247 *In the case of Evans v. Rees,('7) where also an award was held to 
 be inadmissible as evidence of reputation, Lord Denman, C. J., after 
 observing that a verdict was equally open to the objection of being given 
 post litem m,otam,, said : " It is suflBcient to say that the admissibility of a 
 verdict as evidence of reputation is established by too many authorities to 
 be now questioned, but that the principle of these authorities is not clear 
 enough to embrace an award." 
 
 (1) In Davies v. Lowndes, in error, 6 M. & Q. 517. 
 
 (2) See by Lord Denman, C. J., in S. C, 6 M. & G. 528. See also Reilly v. Fitzgerald, 1 
 Drury Ch. E. (Ir.) temp. Sugden, C, 120, 140; S. C, 6 Eq. E. (Ir.), 335, 344. 
 
 (8) In tlie Berkeley Peerage Case, 4 Camp. 411. 
 
 (4) In NichoUs v. Parker (14 East, 331, n.), upon a question of Ixnmdmry between two 
 parishes and manors, declarations were admitted, although the boundary had been long 
 in dispute between the respective parishes and manors, and intersecting perambulations 
 had been made both before and after the declarations, there being no Utigation actually 
 pending at the time. The rule respecting lis mota, does not, however, appear to have 
 been well settled at that time. 
 
 (Declarations made by a deceased person in his lifetime, ante litem rhotami, i. e., before 
 the litigated point has become the subject of controversy, afford a reasonable presumption 
 in relation to remote transactions, and are held admissible. Jones v. Jones, 3 Stfobh.'315. 
 When such declarations are made in derogation of his own interest and before any dispute 
 arose, they are justly considered strong evidence of the truth. Eichards v. Swan, 7 Gill, 
 366 ; Pike v. Hayes, 14 N. Hamp. 19. On the other hand, when made by a person to 
 extend the limits of his possession, or when made post litem motam, they are uniformly 
 excludad. Smith v. Powers, 15 N. Hamp. 546; Matter of Hall, Wallace, jr. 85. The 
 declarations of the decedent, on application for letters of administration, are admissible 
 to prove her former marriage, being connected with a question of pedigree, and not being 
 made post litem motam. Caujolle v. Ferrie, 26 Barb. 177, S. C, 23 N. Y. Sep. 90.) 
 
 (5) Supra, p. 186. 
 
 (6) 3 Camp. 444. 
 
 (7) 10 A. & E. 151. 
 
 Vol. L 26 
 
202 Exception in Questions of Pedigree. [ch. viii. 
 
 In a case where an ancient presentment of a homage was produced, 
 according to which, the jurors purported on their oaths to have considered 
 and negatived the claim of a freeholder of the manor after hearing the 
 evidence produced by him, the presentment was held to be inadmissible, on 
 the ground that it appeared upon its face to have been made post litem 
 motani.{l) 
 
 In the case of Freeman v. Phillips, (2) an action was brought by a copy- 
 holder against the lord of a manor, in which the copyholder relied upon a 
 custom, that the lord could not assess a fine on filling up lives in copyholds 
 held for life without the intervention of the homage. The lord gave in 
 evidence the proceedings in an ancient suit brought by a copyholder against 
 the then lord, in which the copyholder insisted on a particular custom rela- 
 tive to the filling up of lives, not being that which was in dispute in the 
 latter suit, and throughout the former suit no mention was made of the appro- 
 bation of the homage being necessary. The court held, that there was no 
 good reason for not admitting the proceedings in evidence, on the ground 
 of the objection that the litigation was not on the very same point ; and that 
 the proceedings were not evidence of anything affirmed by the witnesses, 
 but were material on account of what the witnesses omitted to affirm, that 
 is to say, that where a dispute existed concerning the copyholder's right to 
 renew on some terms, it was never made a term that the fine should be 
 assessed by the homage. 
 
 In the case of the Duke of Newcastle v. The Hundred of Broxlowe,(3) 
 orders of magistrates at sessions were received as evidence of reputation 
 whether Nottingham Castle was situated within the hundred ; for although 
 they were made upon controverted matters, there was no controversy upon 
 that particular question. 
 
 *248 *SECTIO]Sr IV. 
 
 Exceptions to the General Rule in Questions of Pedigree. 
 
 Another subject, whereon statements are receivable upon the credit of 
 deceased persons, who have neither been sworn to the truth of those state- 
 ments, nor been cross-examined respecting them, relates to matters of 
 pedigree. 
 
 Peasons for the admission. Hearsay statements of deceased persons are 
 allowed to be received in matters of pedigree, subject however to various 
 qualifications. This exception appears to be founded on the considerations, 
 that the facts which are the subject of inquiry are frequently of an ancient 
 date, and that the knowledge of them is usually confined to few individuals. 
 By limiting the exception to the statements of deceased persons, a resort to 
 this kind of evidence is precluded, where the hearsay tendered indicates the 
 existence of more satisfactory proof, and it is only admitted on failure of 
 the ordinary channels of information. According to the qualifications under 
 which evidence of pedigree is received, provision is made that the statement 
 should be derived from a person likely to be well informed upon the subject 
 on ^hict he was speaking, and free from any apparent motive for perverting 
 the facts. 
 
 The exception in question is framed upon general principles adapted to 
 circumstances of frequent occurrence. It may happen that these principles 
 will fail of application in many instances to which the exception might seem 
 to extend. The exception is not confined to ancient facts, but extends also 
 
 (1) Richards v, Bassett, 10 B. & C. 657. 
 (3) 4 M. & S. 493. 
 (3; 4 B. & Ad. 279. 
 
SEC. IT.] Mcception in Questions of Pedigree. 203 
 
 to matters of pedigree which have recently transpired ; and the hearsay of 
 deceased witnesses is admitted as to facts which have occurred in the 
 presence of living witnesses. * 
 
 It would be impossible to prove descents according to the strict rules for 
 establishing contracts, or for regulating rights of property, which require the 
 proof of facts from witnesses who had personal knowledge of them.(l) On 
 inquiring into the truth of facts which happened a long time ago, the courts 
 have A'aried from the strict rule of evidence applicable to facts of the same 
 description happening in modern times, on account of the difficulty or 
 impossibility (by lapse of time) of proving those facts in the ordinary way 
 by living witnesses. (2) On this ground hearsay and reputation (which latter 
 
 is no other than the hearsay of those who may be supposed to be 
 *249 acquainted with the fact handed down from one to another), *have 
 
 been admitted as evidence in particular cases. (3) On that principle, 
 in cases of pedigree, stands the evidence of declarations of deceased mem- 
 bers of the family, of monumental inscriptions, and of entries made in 
 family Bibles. Such evidence is admitted on the principle, that it is the 
 natural effusion of a party who must know the truth, and who speaks upon 
 
 (1) By Erskine, C, in Vowles v. Young, 13 Ves. 143. And Bee bv Best, C. J., in Jolin 
 Bon V. Lawson, 2 Bing. 86 ; S. C, 9 B. Moore, 188. 
 
 (2) By Le Blanc, J., in Higham v. Ridgway, 10 East, 120. 
 
 (3) Note 89. — Per Best, C. J., in Doe ex dem. Fatter v. Randall, 2 Moore & Payne, 15. 
 And see 2 Ev. Poth. 290, wlio recognizes tlie same principle. All the cases which we 
 shall have occasion hereafter to cite, in respect to hearsay of pedigree, recognize the 
 general proposition that it is admissible. See, also, per Marshall, C. J., 7 Cranch, 296 ; 
 Strickland's Lessee v. Poole, 1 Dall. 14 ; Negro John. Davis v. Wood, 1 Wheat. 6. The 
 vexed questions are, in what form, and under what qualifications? for which, mainly, 
 consult the ensuing pages of the text and notes. 
 
 Ex parte aflBdavits made abroad, out of the United States, may be received to prove 
 pedigree, as well as the identity of persons married, but not to establish an independent 
 fact. Fogier's Lessee v. Simpson, 1787, cited 2 Dall. Rep. 117 ; Douglas' Lessee v. Sander- 
 son, 1 Yates, 15 ; Winder v. Little, Id. 152 ; Lessee of Lilly v. Kintzmiller, Id. 28. Though 
 other\vise, it seems, of an aifidavit made in another state. Douglas' Lessee v. Sanderson, 
 2 Dall. 116, 118. Yet it has again and again been held, that depositions of deceased 
 witnesses, taken between other parties, arid with whom the new parties are in no way 
 privy, may come in as hearsay of pedigree, in whatever court taken. Boudereau v. 
 Montgomery, 4 Wash. C. C, Rep. 186 ; Banert's Lessee v. Day, 3 Wash. C. C. Rep. 243. 
 So may the declarations of the decedent, 23 N. Y. Rep. 90. See ante p. 246. 
 
 These are merely ex parte aa to the persons immediately concerned, though they axe 
 not in every sense extra-judicial. The cases cited from the Pennsylvania Reports relate 
 to those which were entirely extra-judicial, as well as, probably, post litem motam. Those 
 decisions were doubted in a subsequent case (Keller v. Nutz, 5 Serg.' & Rawle, 251), and it 
 was held, that where the deponents reside in the state, within, the jurisdiction of the 
 court, such depositions would, clearly, not be admissible. Id. If that objection were out 
 of the way, the capital one in the Berkeley Peerage Case would still be left, that they are 
 not ante litem motam, but probably concocted for the very purpose of turning the cause ; 
 a most dangerous sort of evidence. 
 
 In ejectment, the plaintiflF had proved his pedigree under a commission to France ; and 
 the substance of the depositions, on the point of pedigree, had been copied into a bill of 
 exceptions in the same cause ; but the originals were lost. Judgment being for the 
 plaintiff, in an action for mesne profits, ajgainst the landlord of the defendant, the /ormer 
 having retained counsel to defend the ejectment, though not a formal defendant on the 
 record, the bUl of exceptions was received in evidence. Chirac v. Reinecker, 2 Pet. S. C. 
 Rep. 618, 620, 621. 
 
 A conversation of the deceased ancestor, in which he and another, now living, reckoned 
 up their descents ; and the ancestor observed, if that be so, we are second cousins ; is 
 inadmissible as a declaration of the ancestor, that they were related within that degree. 
 But proof that he afterwards explicitly admitted that connection, though the credit of the 
 admission may be weakened by the former conversation, is admissible. Charlotte Hall 
 School. V. Greenwell, 4 Gill & John. 407. 
 
 The proof of hearsay to make out pedigree, is not confined to questions in respect to 
 descent or other claim to real estate ; but extends to all questions of relationship for other 
 purposes ; as to show the degree of relationship with a view to claim as the distributee of 
 an intestate. Charlotte HaU School v. Greenwell, 4 GiU & John. 407. 
 
204 What are Matters of Pedigree, [ch. viii; 
 
 an occasion where he stands in an even position, without any temptation to 
 
 exceed or fall short of the truth, (l) 
 *250 It will be convenient in the present section, to consider in order, first, 
 
 what are matters of pedigree ; secondly, the different forms of hear- 
 say evidence in cases of pedigree ; thirdly, the qualifications under which 
 hearsay evidence is received in cases of pedigree. 
 1. What are matters of pedigree. 
 
 First, pedigree, with reference to the subject under consideration, consists 
 of general evidence of descent or relationship, evidence of particular facts 
 (as births, marriages and deaths) and of the time when such events occurred, 
 either absolutely or relatively to each other. (2) 
 
 Thus, general kindred, as that a person was heir to another, being his 
 cousin or relation, is matter of pedigree, and declarations to that eflfect 
 appear to be receivable in evidence. (3) So the identity of a party is a 
 matter of pedigree, and may be proved by hearsay evidence. (4) 
 
 And not only may relationship in general be proved by the hearsay of a 
 family, but particular facts also may be proved, such as the ages of persons, 
 dates of death or birth. There are several authorities for admitting hearsay 
 as to dates. (5) Thus upon a question whether a testator at the time of 
 making his will was of full age, a written memorandum by a deceased 
 
 parent, stating the time of his birth, has been admitted to be good 
 *251||evidence.(6) In like manner, the declarations of parents are *admis- 
 
 sible to prove, that a birth took place before marriage, as well as to 
 
 (1) By Lord Eldon, C, in WMtelocke v. Baker, 13 Ves. 514. These observations are 
 adopted by Lord Brougham, C, in Monektdn v. Att. Gen., 2 Russ & M. 163. See, upon 
 the subject of hearsay and relaxations of the old rules of evidence, Burke's Works, Vol. 
 XIV ; Report from Committee appointed to inspect the Lords' Journals. 
 
 Note 90. — A leaf torn from an old family Bible, belonging to the father, was admitted 
 to prove that those persons vrere his sons under vrhom the lessor of the plaintiff claimed. 
 Douglas' Lessee v. Sanderson, 1 Yeates, 15 ; S. C, 2 Dall. 116. See note 92. Many of the 
 American judges have mentioned family Bibles and inscriptions on monuments as familiar 
 and well settled media of proof in cases of pedigree. Indeed, every variety of hearsay 
 mentioned may be considered as receivable upon American authority. Per Thompson, J., 
 in Jackson ex dem. Ross v. Cooley, 8 John. R. 131 ; Per Duncan, J., in Keller v. Nutz, 5 
 Serg. & Rawle, 251 ; (Copes v. Pearce, 7 Gill. 347 ; Primm v. Stewart, 7 Texas 178. Declar- 
 ations by deceased members of the family, in regard to pedigree, are of equal weight as 
 writing made in the family register. Clements v. Hunt, 1 Jones' Law (N. C.) 400 ; but 
 such declarations are not admissible, if they appear to have been made ipost litem motam. 
 Matter of Hall, 1 Wallace, Jr., 85.) 
 
 (2) See Monckton v. Att. Gfen. 2 Russ. & M. 161. 
 
 (See, as to proof of marriage, Copes v. Pearce, 7 Gill. 247 ; 23 N. Y. Rep. 90 ; of death, 
 Primm v. Stewart, 7 "fexas, 178; Jackson v. Boneham, 15 John. R. 226; but not of death 
 in a particular manner, 5 Cowen, 314 ; nor that a person who is shown to have been 
 absent and unheard of for more than seven years, has been since seen in the state. 
 Smothers v. Mudd, 9 B. Mon. 490.) 
 
 (3) Doe d. Putter v. Randall, 2 M. & P. 34. And see by Lord Erskine, C, 13 Ves. 147 : 
 by Lord Brougham, C, 3 Russ. & M. 158. 
 
 (4) R. V. St. Mildred's, Canterbury, 2 Jur. 46 Q. B. 
 
 (5) Entries in family Bibles, made by parents, as to births and deaths of their children, 
 with the dates respectively, are admitted after the decease of the parents, without objec- 
 tion. In Kidney v. Cockburn (2 Russ. & M. 167), it is reported that Tindal, C. J., at Nisi 
 Prius, rejected the evidence of inscriptions on a tombstone and monumental tablet, and 
 also of declarations, and of a letter stating the ages of individuals ; on the ground, that 
 although relationship in general might be proved by hearsay, particular facts, such as the 
 ages of parties, could not. Lord Brougham, C, however, expressed a contrary opinion, as 
 also did Park, J., and Littledalu, J., to whom the point was submitted. "The Lord Chan- 
 cellor granted a case for the opinion of the court of K. B. But the case was compromised. 
 In R. V. Eriswell (3 T. R. 707), although the declarations of deceased persons were held 
 inadmissible relating to a, question of settlement, the court seemed to admit that such 
 declarations would be receivable In a case of pedigree. 
 
 (6) Herbert v. Tuckal, T. Raym. 84, recognized by Lord EUenborough, C. J., in Roe d. 
 Brune v. Rawlings, 7 East, 290. And see Johnson v. Parker, 3 Pliill. 42 ; by Lord Mans- 
 iield, C. J., in Goodright d. Stevens v. Moss, Cowp. 693. See also Ryder v. Malborne, cit. 
 3 Russ. & M. 169 ; VuUiamy v. Huskisson, 3 Y. & Col. 83. 
 
SEC. IT.] What are Matters of Pedigree. 205 
 
 disprove the fact of marriage entirely. (1) Upon a question, whicli of three 
 children, all born at a birth, was heir, evidence was admitted, on one side, 
 of declarations by the father stating which was the eldest son, and that he 
 called them Stephanus, Fortunatus, and Achaicus (according to the order 
 of names from St. Paul's Epistle), for the purpose of distinguishing their 
 seniority ; on the other side, the court received declarations by a relative, 
 
 who was present at the bu-th, and who, upon the birth ol the second 
 *252 and *third child, took some string and tied a piece round their arms, 
 
 to know them from the eldest. (2) A variety of illustrations of what 
 is deemed in law to be matter of pedigree, wUl be found under the subse- 
 quent heads of this subject. 
 
 In an action of assumpsit, (3) in which there was a plea of infancy, and 
 
 (1) Goodright d. Stevens v. Moss, Cowp. 591 ; Lord Valentia's Case and Stapylton v. 
 Stapylton, cited lb., 593 ; E. v. St. Peter, Burr. Sett. Cas. 25 ; B. v. Bramley, 6 T. E., 330 ; 
 May V. May, B. N. P. 113. See, also, Cooke v. Lloyd, Peake Ev. App. xxviii. 
 
 NoTB 91. — A distinction is taken in some of the cases between pedigree, where sucli 
 declarations are admissible, and other cases where it is not allowed. Thus, in a settle- 
 ment case where a legal residence was claimed fpr the wife on the simple ground that 
 she had married a freeholder of the town, the declarations of the freeholder as to. his 
 previous marriage with another woman living at the second marriage, and his reception 
 of that woman on presenting herself as his wife, were refused in evjdence. Westfield v. 
 Warren, 3 Halst. 249. The cases cited in the text are those of settlement in right of 
 parentage, and therefore present questions of pedigree. It is so likewise with most of the 
 cases cited infra. The distinction is ably and satisfactorily supported by Ewing, C. J., p. 
 250 to 253, though it is certaintthat the rule is in the other cases laid down without that 
 distinction ; and the direct action of our courts upon it has been, we believe, pretty much 
 confined to this case of Westfield v. Warren. In that case, it is to be observed, that the 
 acknowledgment was of a former marriage in the abstract, the supposed husband and 
 wife having been long separated. It was different from their declarations while they are 
 living together. In the latter case, their condition, whether in marriage or concubinage, 
 would seem to be deducible from their declarations as a part of the res geatw, within the 
 rules as to possession, forbearance, domicile, &c. {ante, notes 80 and 81). After all, this 
 may be the true sense of the cases which sanction cohabitation, reputation, reception in 
 the family, hearsay of the parties, &c. 1 Stark. Ev. 58, 59. Such matters have often 
 been received entirely independent of pedigree, and even in favor of the parties them- 
 selves, claiming as husband and wife. Hammick et ux. v. Bronson, 5 Day, 290, 293, So 
 on a claim of a widow, for her dower. Whitehead v. Clinch, Hayw. 3, 4 ; Jackson ex. 
 dem. Van Buskirk v. Claw, 18 John. Eep. 346. And see Jenkins v. Bisbee, 1 Edw. Ch. 
 Eep. 377, 378. Another court acted upon a principle more firmly fixed, when in a settle- 
 ment cause involving pedigree, they rejected such hearsay, because the parent was alive 
 and adducible as a witness, his corporal oath being evidence of a higher grade. Eaynham 
 V. Canton, 3 Pick. 293, 296. As the courts had heretofore apparently shaped this matter, 
 the rule was, that except in prosecutions for bigamy, or incest, and indictments or actions 
 for adultery, the acknowledgmeut of the parties, the father or mother, was admissible to 
 prove or disprove a marriage, even against third persons not claiming under them. Fen- 
 ton V. Eeed, 4 John. Rep. 52, 54 ; Allen v. Hall, infra. A fortiori, where the claim is 
 under the declarant. Johnson's Legatee and Ex'x v. Johnson's Ex'r, 1 Dessauss. Eq. Rep. 
 595 ; Allen v. Hall, 2 Nott & M'Cord, 114, 115, 117, 118. And general reputation was 
 allowed even though the father was alive. ' Doe dem. Fleming v. Fleming, 12 Moore, 500 ; 
 S. C, 4 Bing. 266. Common reputation alone was held suflicient. Id. But it was denied 
 in another case, that mere rumor of a previous marriage to a wife living at the time of 
 the second marriage, in order to invalidate the latter, would be suflBcient. Williams v. 
 Williams, 1 J. J. Marsh. 105. The declaration in an imputed father's wUl, casting doubt 
 on the legitimacy of the claimant, though admissible, may be overcome by cohabitation 
 and reputation in the neighborhood a long time agp, the parties being dead, and no 
 adverse heir appearing. Johnson's Legatee and Ex'x v. Johnson's Ex'r, 1 Dessauss. Eq. 
 Rep. 595. In a recent case, on application for letters of administration, the declarations 
 of the decedent were received in proof of marriage, in favor of the applicant's legitimacy. 
 26 Barb. 177 ; 23 N. Y. Rep. 90. 
 
 (2) Vin. Ab. Ev. T. b. 91: referred to by Lawrence, J., in Spadwell v. , in the 
 
 Berkeley Peerage Case, 4 Camp. 401, 410. 
 
 (3) Figg V. Wedderborne, 6 Jur. 218. 
 
 Note 92. — Where in actions on contract a plea of infancy is interposed, hearsay of age 
 coming from the plaintiff's father has been refused ; but the case mentions no reason. 
 Albertson's Lessee v. Bobeson, 1 Dall. 9. In another case a passport, signed by the father 
 as consul, stating his son's age, was received, it having been made before the controversy 
 
206 What are Matters of Pedigree. [ch. vm. 
 
 the question was -whether, in support of this plea, letters -written by the 
 deceased father were admissible to show the age of the defendant, Patteson, 
 J., upon a motion for a new trial in the Bail Court, intimated a strong 
 opinion against their admissibility. And in an action for use and occupa- 
 tion of certain property, which had been demised to the defendant for a 
 term determinable on three lives,(l) Parke, J., rejected hearsay evidence 
 of the death of one of the cestuis que vie, upon the ground that it was not 
 a question of pedigree. 
 
 Hearsay not admissible, as to place of birth. It has been held that the 
 declarations of a deceased parent, though they are good proof of 
 *253 the time of a child's birth, are not admissible as evidence *of the 
 place of the birth. (2), "The point in dispute," said Lord Ellen- 
 borough, C. J., in a case where the admissibility of such evidence was 
 discussed, " turns on a single fact involving no question but of locality, and 
 therefore not falling within the principle of, or governed by the rules appli- 
 cable to, cases of pedigree."(3) In this case, the declaration of a deceased 
 father as to the birthplace of his illegitimate child was rejected. And this 
 distinction between the time and place of birth, as matters of pedigree, has 
 been recognized in a recent case. (4) 
 
 arose, tliougli it did Hot appear that the father -was absent. But in Louisiana, -where this 
 case -was decided, lineal ascendants or descendants are not witnesses for each other. 
 Da-rid V. Sittig. 1 Mart. Lou.' Hep. (N. S.) 147, 149. In general, the notion of primary and 
 secondary evidence is closely adhered to in the admission of these declarations as to age. 
 Per Colcock, J., in Taylor v. Ha-wkins, 1 M'Cord, 165. They cannot be received where 
 the father, mother or other declarant is present in court, or within reach of process. Id. 
 Thus the mother's entry in the family Bible was properly rejected, she being in court. 
 Per Marcy, J., in Leggett v. Boyd, 3 Wend. 376, 379. In Woodward v. Spiller, (cited ' 
 post), the father was dead. The deceased father's original entry in the Bible should be 
 produced, or its absence accounted for. In the latter case only can a copy be received, 
 though it be a transcript by direction of the father from one family Bible into another. 
 Curtis V. Patton, 6 Serg. & Eawle, 135. But this is only where you seek to prove the 
 contents of the memorandum itself; for the entry in the family Bible is but a memoran- 
 dum, and not superior in degree to any other proof admissible in itself. It is not, 
 therefore, superior to the recollection of a witness, which may be adduced, although it 
 appear that the age be entei-ed in the family Bible. Berry v. Waring, 2 Har. & Gill, 103 ; 
 Taylor v. Hawkins, 1 M'Cord, 164. (Entries "by a physician, in the usual course of his 
 practice, showing the time of a child's birth, are competent evidence after the death of 
 the physician making them. Arms v. Middleton, 33 Barb. 571.) 
 
 A parish register was denied as evidence of age, Ld. Tenterden, C. J., saying it was 
 only evidence of baptism. Bex. v. Clapham, 4 Carr. & Payne, 29. Where, on trying the 
 charge of rape, it was material to show that on the 5th of' February, 1832, a female (jhild 
 was under ten years of age, its father proved that on his return after an absence from 
 home for a few days, on the 9th of February, 1832, he found that the child had been born, 
 and was told by her grandmother that she had been born the day before. The register 
 of baptism showed .that the child had been baptized on the 9th of February, 1832. The 
 mother was dead ; but the court held the testimony insuflBcient, as the grandmother was 
 alive and might be called. The whole depended on what she told the father. Hex v. 
 Wedge, 5 Carr. & Payne, 208, 
 
 (1) Whittuck V. Waters, 4 C. & P. 875. 
 
 (3) R. V. Erith (Inhabs.), 8 East, 539. 
 
 (3) Ibid. p. 542. 
 
 (4) R. V Rishworth (Inhabs.), 3 Q. B. 476, 483, 485, 487. See also R. v. Telvertoft 
 (Inhabs.) 6 Q. B. 801. 
 
 Note 93. — Tho American cases are uniform in denying declarations to prove the mere 
 place of birth. They have, accordingly, been denied on trying a petition of freedom as 
 to the place of birth and residence of a black woman (Mima Queen v. Hepburn, 7 Cranch, 
 291); in ejectment, where the plaintiff asked one of his witnesses if it was not reputed, 
 in 1784 or 1785, that Tanner, the patentee under whom the plaintiff claimed, was a native 
 of North Carolina (Shearer v. Clay, 1 Litt. 260, 366 ; S. C, 3 Marsh. 649, 550, S. P.) ; and 
 on hearing a settlement case before the general Quarter Sessions, where the appellees 
 offered a witness to prove the pauper's pZace of birth by what he had heai'd his deceased 
 parents say concerning it. Independence v. i'ompton, 4 Halst. 309. Although pedigree 
 may be proved by hearsay, the place of birth cannot. Jackson ex dem. People v. Etz, 5 
 Cowen's Rep. 330, per Sutherland, J. Tho declaration of a pauper is not evidence as to 
 he place of his birth ; nor is a man's declaration that he was born in Germany, on trial 
 
6EC. iv.J What are Matters of Pedigree. 207 
 
 It may indeed be obseryed, that the fact where a child was born is seldom 
 provable except by the evidence of relations, and that they are quite as 
 likely to remember accurately the ^^ace as the time of the birth, if not more 
 so. But the reason of the distinction appears to be that pointed, out by 
 Lord EUenborough, C. J., namely, th^t the place of birth is not a question 
 of pedigree, or at least not necessarily so, — whereas, the time of birth is so, 
 as showing the age of a party. (1) 
 
 Locality, however, may be so involved in a question of pedigree, as to 
 fall within the general rule, and render hearsay evidence admissible on the 
 subject ; as, where the object is to identify certain persons connected 
 *257 *with a particular place, as belonging to a family. Thus, where it is 
 important to show that a family had relatives living at a particular 
 place, A., a declaration by a deceased member of the family that "he 
 was going to visit his relatives at A.," may be given in evidence — not, 
 indeed, of the fact that the declarant did go to that place, or that any one 
 of the family name was living there — but as showing a tradition in the 
 family that they had relations living there ; and in the event of its being 
 shown by other evidence that there were persons of that name living at 
 that place, the declaration in question might be referred to, for connecting 
 those persons with the family. (2j In like manner, evidence has been received 
 of a tradition that a particular mdividual had died in India, for the purpose 
 of connecting that individual with a certain family. (3) 
 
 On questions of settlement. Formei-ly, it was the practice to admit the 
 declarations of deceased persons as to particulars concerning their settle- 
 ments, though not relating to matters of pedigree. (4) But it is now settled 
 that all such evidence is inadmissible. (5) 
 
 Non-access. It has been stated as a ground for rejecting the evidence of 
 a father or mother, as proof of want ot access (in order to bastardize a, child 
 born during wedlock), (6) that the want of access, implying the continued 
 separation of the parties, must be notorious to the whole neighborhood 
 where they resided, and is therefore capable of more satisfactory proof iC?) 
 
 of a question of citizenship. Braiiitree v. Hinglian, 1 Pick. 345, 247. On a question 
 Tvliere T. was born, in a suit respecting tlie settlement of his descendants, evidence as to 
 the declaration of persons who brought him to their house while he was an infant, that 
 he was brought from M., was held inadmissible. Wilmington v. Burlington, 4 Pick. 174, 
 26 Barb. 177. 
 
 But in a case respecting a settlement derived from the deceased grandfather, it being 
 material to show that he was settled in Oxford, a deed, vrith his last will executed by 
 him, describing him as of Oxford, was held admissible. And the court distinguished 
 this from a, mere case of oral declaration of a pauper as to his residence ; the evidence 
 coming from a more solemn and a more disinterested act, and being in the nature of a 
 fact rather than a declaration. Ward v. Oxford, 8 Pick, 476, 477, 478. 
 
 (1) Entries of baptism in parochial registers are not evidence of the place, or even of 
 the time of the child's birth ; but this is on the ground that it is not the duty of the 
 minister to enter such matters. R. v. Clapham, 4 C. & P. 29 ; Biirghart v. Angerstein, 6 
 C. & P. 696 ; Wihen v. Law, 3 Stark. R. 63. See this subject more fully treated post, 
 Vol. II : On the Admissibility of Public Writings, not judicial. And see ibid, as to registers 
 made under the Registration Act (6 & 7 Wm. IV, c. 86, § 88). 
 
 (2) Rishton v. Nesbitt, 2 Mo. & R. 554, 
 
 (3) Monckton v. Att. Gen., 3 Russ. & M. 147, 151. 
 
 (4) R. v. Greenwick, Burr. Sett. Ca. 243 ; B. v. Nuttey, Id. 701 ; R. v. Wareham, Cald. 
 141 ; R. v. Bury, Id. 486 ; R. v. St. Sepulchre, Id. 547. 
 
 (5) B. V. Eriswell, 3 T. R. 707 ; B. v. Nuneham Courtney, 1 East, 373 ; R. v. Chadder- 
 ton, 2 East, 39 ; R. v. Ferry Frystone. Id, 55 ; R. v. Abergwilly, Id. 63. 
 
 (6) As to which see supra, cb, 4, § 4, and ch. 7, § 2. 
 
 (7) B. N. P. 113, citing Roe v. Reading, Rep. temp. Hardw. 79. 
 
 Note 94. — The defendant admitted, in his answer to a bill in chancery, that he had 
 always insisted that H. (in whose right the plaintiff claimed property, the' title to which 
 depended on his establishing H.'s illegitimacy), though born in wedlock, was not his child. 
 Held insufficient to establish her illegitimacy. Bowles v. Bingham, 3 Munf. 443. It was 
 said, on a question of bastardy, that the condition of a child born during marriage cannot 
 
208 Forms of Proof in Matters of Pedigree. [ch. viir. 
 
 and this objection would apply to their declarations, if hy the term non- 
 access is meant the want of opportunity for sexual intercouse. If by 
 
 *255 that *tenn is meant the fact of sexual intercourse, it should seem that 
 the declarations could be rejected only on the ground of interest or 
 
 public policy. Expressions of the paxents tending to bastardize their issue 
 
 have, however, been held admissible. (t) 
 
 2. Of the various forms in which the hearsay may be presented in matters 
 
 of pedigree. ' 
 
 Entries, inscriptions. The hearsay evidence which is admissible in mat- 
 ters of pedigree may be supplied in various forms. One class of proofs 
 seem to rest principally on the credit due to the authors of the statements ; 
 such as entries made by members of the family in family Bibles or other 
 family books, family correspondence, descriptions in wills, recitals in 
 deeds, statements in bills or answers in chaincery. There is another 
 class, apparently resting not so much upon the credit due to 'the authors 
 of the statements as upon the adoption of the statements by the 
 family, such as inscriptions on tombstones or on coflB.n plates, engravings 
 on rings, pedigrees hung up in a family mansion, or the like. The author- 
 ities, however, do not admit of being arranged with much precision accord- 
 ing to these classifications. The distinction is here noticed, because it will 
 afterwards become important to advert to the examples about to be detailed, 
 according to this view of them. 
 
 An entry in a family Bible has been considered to derive credit jfrom the 
 circumstance of its being entered, in a book which is kept as the ordinary 
 register of families, and as admissible, therefore, on account of its publicity 
 in the family, without proof that such entry was made by a member of the 
 family. (2) But memoranda inserted in other books, as an almanac, (3) a 
 missal,(4) a prayer book,(5) and in other family documents or papers,(6) 
 
 be affected by the declaration of one or both of the spouses. Tate v. Penne, 7 Mart. Lou. Rep. 
 (N. S.) 548, 555, citing 3 Toullier, lib. 1, cli. 2, no. 859 ; Cross v. Cross, 3 Paige, 139, 141 ; Cope 
 v. Cope, 5 Carr. & Payne, 604. The greal; case of the Sieur Bouillerot de Vivantes (2 Ev. 
 Poth. 450 to 469), decided by the French Chancellor D'Aguesseau, presents a splendid dis- 
 cussion upon .the maxim Pater est is quern nuptim demonstrant, as opposed to the uniform 
 acts and declarations of the father, mother and adulterer, all conspiring to bastardize the 
 appellant. (See also Page v. Dennison, a recent case decided in the Supreme Court of 
 Pennsylvania ; Amer. Law Reg. for June, 1857, p. 469, and cases there cited by Knox, J.) 
 ! (1) Hargrave v. Hargrave. 2 C. & K. 701. And see Stapylton v. Stapylton, Rep. temp. 
 Hardw. 277 ; Goodright d. Steven v. Moss, Cowp. 598 ; R. v. Luffe, 8 East, 203 ; R. v. Kea, 
 11 East. 133 ; R. v. Rook, 1 Wils. 340 ; R. v. Bedell, 2 Str. 941, 1076 ; E. v. Mansfield, 1 Q. 
 B. 444 ; Cope v. Cope, 1 Mo. & R. 269 ; S. C, 5 0. & P. 604. 
 
 (3) By Lord Ellenborough, C. J., and Lord Redesdale C, in the Berkeley Peerage Case, 
 4 Camp. 431. And see Johnston v. Parker, 3 Phill. 83 ; by Lord Mansfield, C. J., in Good- 
 right d. Stevens v. Moss, Cowp. 594 ; Lord Erskine, C, 13 Ves. 514 ; Le Blanc, J., 10 East, 
 120. See also by Lord Brougham, C, in Monckton v. Att. Gen., 3 Russ. & M. 162 163 
 
 (3) Herbert v. Tucknal, T. Raym. 84. 
 
 (4) Slane Peerage, 5 CI. & Fin. 41 ; Print. Min. part 3, p. 4i). 
 
 (5) Leigh Peerage, Print. Min. p. 310 ; Sussex Peerage, 11 CI. & Fin. 85, 98. 
 
 (6) Berkeley Peerage (3d quest.), 4 Camp. 401. See also Vin. Ab. tit. Evidence, b. 87, 
 pi. 5 ; by Lord Mansfield, C. J., in Goodright d. Stevens v. Moss, Cowp. 591 ; Monckton v. 
 Att. Gen., 3 Russ. & M. 164. 
 
 Note 95. — In ejectment, a sworn copy of the records of the town of Stonington, in Con- 
 necticut, which contained the date of the marriage- of the parents of the lessors of the 
 plaintiff, and the time of their birth, was held properly receivable in evidence to prove 
 their pedigree, Jackson ex dem. Miner v. Boneham, 15 John. Rep. 236. The register of 
 births and deaths kept by a religious society is evidence of death, but at common law it 
 must be proved. A copy, under the seal of the corporation, is not evidence. Stoever v. 
 Whitman's Lessee, 6 Bin.. 416. But when the original is of a public nature— «. g., the 
 records of the Reformed Dutch Church in the city of New York — a sworn copy is admis- 
 sible. Jackson ex dem. Bogert v. King, 5 Cowen's Rep. 237. A register book of baptism 
 was refused as evidence of legitimacy, because tlie entry was made more than a year after 
 it took place, by a minister, from the information of the parish clerk, the person making 
 the entry not being minister whe^e the baptism took place ; for he was recording a fact 
 
SEC. IT.] Forms of Proof in Matters of Fedigfee. 20d' 
 
 have laeen adrfiitted in evidence, to show the fact- or date of 
 *256 *the birth, marriage or death of a child or other relative of the family. 
 
 This latter class of entries, however, should be shown either to have 
 been made by some member of the family, (1) or to have been acknowledged 
 or treated by a relative as a correct family memorial; (2) or, in the case of 
 ancient writings, at least that they were made at the period when they 
 purport to have been written. (3) 
 
 Family Correspondence. Correspondence between members of the family, 
 addressing each other as relatives and making statements of pedigree, have 
 been admitted in several claims of peerage. (4) 
 
 Recitals. Recitals in family deeds, as marriage settlements and the like,' 
 have been admitted on the footing of declarations of relatives. (5) Perrott,' 
 R, is said to have rejected a slip of parchment, found in a shoemaker's 
 *257 shop, *and marked Mr. A. B.'s measure, which purported to be twO' 
 lines of a deed, and contained a recital of descent, but the Court of 
 King's Bench granted a new trial, on the ground that the evidence ought 
 to have been admitted. (6) 
 
 In an early case, where viva voce evidence was offered on the part of the 
 plaintiff, that on a former trial in ejectment against the same defendant, a 
 deed had been produced on the part of the defendant, having a clause in it 
 relating to a pedigree, the court held such proof to be admissible, on the 
 ground that the defendant had the deed in his custody, and might disprove 
 the witness if he swore falsely. (7) 
 
 Recitals in deeds which are not family documents are receivable, if it be 
 shown that the deeds were executed by some member of the family to 
 which the statements have reference. (8) In two modern cases in chancery 
 it has been considered, that recitals in deeds were not evidence of pedigree 
 against persons who were strangers to the deeds. (9) It may be observed, 
 
 not within his own knowledge ; and though the clerk made a memorandum at the 
 time, thia was no part of his duty as clerk, but a mere private entry. Doe dem. 
 Warren v. Bray, 8 Barn, k Cress. 818. The copy of a register of a dissenting chapel was 
 denied as evidence, the register being a mere private memorandum, and not a '^blio 
 document in oflSeial custody. But the original would be admissible. Newham v. Raithby, 
 1 Phill. Rep. 315. When such an unoiBcial register or memorandtmi is signed by a 
 deceased parent, it is admissible as a declaration of the parent. Ssdd in Doe dem.Warreu 
 V. Bray, 8 Barn. & Cress. 813. A parish register of marriages, births and deaths, kept 
 pursuant to the N. Car. Act of 1715, is evidence to prove pedigree, and that the several 
 persons whose pedigree is thus proved are within the savings of the Statute of Limita- 
 tions. Den ex dem. Jacocka v. Gilliam, 3 Murph. 47. A parish register stated th« day of 
 baptism and the day of birth, and was produced to show the defendant was of age. But 
 Lord Tenterden would not allow that part respecting the birth to be read, saying the regis- 
 ter was only evidence of baptism. Rex. v. Clapham, 4 Carr. & Payne, 29. ' 
 
 (Declarations by members of a family, after they or their relatives have set up a claim 
 to an estate, are not admissible ; nor are recent entries in a fainily Bible, where there is 
 a better witness who may be called. People v. Fulton File Ins. Co., 25 Wen4. 205 ; Leg- 
 gett V. Boyd, 3 Id. 276.) ^ 
 
 (1) Tracy Peerage, cit. Hubbiick Ev. Success. 673. ^' 
 
 (2) Hood V. Beauchamp, 8 Sim. 26. 
 
 (3) Tracy Peerage, 10 CI. & Fin. 154. 
 
 (4) Berner's Peerage, Collins on Baronies, 355, 356, 361 ; Leigh Peerkge, Print. Min., 
 part 2, p. 140 ; Huntingdon Peerage, Rep. by Att. Gen., p. 357 ; Hastings Peferage, Print. 
 Min. 196. See also Kidney v. Cockbum, 2 Ru?a. & M. 168. 
 
 (5) B. N. P. 233 ; Neal d. Athol (Duke) v. Wilding, 3 Str. 1151 ; Chandos Peerage, Print. 
 Min. p. 27 ; Stafford Peerage, Print, Min. p. 110 ; Zonch Peerage, Print.Min. p. 275 ; Lisle 
 Peerage, Print. Min. pp. 116, 127; Banbury Peerage, Print." Min. PP 6, 117; Devon. 
 Peerage, by Nicholas, App. pp. 44, 48 ; Vaux Peerage, Print. Min. p. 44 ; Huntley Peerage, 
 Print. Min". p. 15 ; Roscommon Peerage, Print. Min. p. 36. 
 
 (6) Cited by Thompson, B., Peake Add. Ca. 204 
 
 (7) Eccleston v. Petty, Carth. 79. 
 
 (8) Marmyon Peerage, Print. Min. p. Ill ; Hastings Peerage, Print. Min. p. 200 ; Bath- 
 wick Peerage, Print. Min. p. 62. 
 
 (9) Fort V. Clarke, 1 Russ. 604, Slaney v. Wade, 1 MyL & C. 338. On the effect in 
 Vol. L 27 
 
210 Forms of Proof in Matters of Pedigree. [ch. viii. 
 
 that recitals are frequently in the nature of conventional admissions between 
 the parties to a deed, by which they agree to be bound, without reference 
 
 to the real state of facts. 
 *258 *A description in the will of a member of the family is also admis- 
 sible on the same ground, (1) and this even thpngh the will is found 
 canceled and not known to have been proved or acted upon, if it appears 
 to have been treated as a paper relating to the family. (2) In the Lisle 
 Peerage Case,(S) a description, in a will of certain individuals, as being the 
 next " heirs in blood," was relied upon as showing that a particular person 
 was illegitimate. 
 
 It may be observed that, upon the principles applicable to the proof of 
 documentary evidence, a probate would not be evidence even of the fact 
 of relationship in an action for the recovery of real estate ; though it would 
 be otherwise with respect to the ledger-book of the Ecclesiastical Court or 
 a copy of it. (4) 
 
 In the cases respecting the admissibility of bills, answers and depositions 
 in chancery as evidence of pedigree, some confusion occurs, attributable 
 chiefly to a difiiculty in determining in what particular cases these sources 
 of evidence are open to the objection of being post litem motam.{5) Lord 
 Kenyon, C. J., held the opinion that a statement in a bill in chancery by an 
 ancestor was evidence to prove a family pedigree stated therein, in the 
 same manner as an inscription on a tombstone or entry in a Bible. (6) And 
 although, before this, answers and depositions were held inadmissible as 
 proofs of pedigree, there appears always to have been some other ground 
 of rejection peculiar to the case— r as that the answer was made by an 
 
 general of recitals, see infra, chap. On Admissions, and Doe d. Pritchard v. Dodd, 2 Nev. 
 & M. 45 ; Bowman v. Taylor, 2 A. & E. 278. 
 
 Note 96. — The following case may serve to illustrate the rule, as it has been held In 
 this country. In ejectment, the lessor of the plaintiff claimed under the heirs of Charles 
 Sparks ; and gave in evidence a deed of the premises, purporting to be from divers 
 persons, said to be children of Sparks, and containing a covenant that his youngest son 
 should convey, when of full age. This was held admissible as evidence of their pedigree. 
 Paxtqp's Lessee v. Price, 1 Yates, 500. The same description of evidence, under similar 
 circumstances, was recognized as correct, for a like purpose, in Jackson ex dem. Ross and 
 others v. Cooley, 8 John. Rep. 128. In ejectment, the plaintiff claimed under a provincial 
 governor (Crosby, of New York), through one of his two devisees. A deed executed by 
 W. as the attorney of persons styling themselves, in the power of attorney (which was 
 dated thirty years before the trial), heirs of the governor, which deed recited the seizin of 
 the governor, the death of his devisee, and the descent of the estate from him, the devise, 
 to Elizabeth, and the heirship from her to those who gave the power, was received in 
 evidence for the plaintiff, as part of the proof of pedigree ; and, connected with other 
 slight proof, was holden sufficient, Jackson ex dem. Schuyler v. Russell, 4 Wendell's 
 Rep. 543. In a writ of entry sur disseisin, the tenant (defendant) claimed under one 
 Daniel Mountjoy, the son of Daniel Mountjoy and Rebecca Stokes, the latter ot whom he 
 alleged was the daughter of Benjamin Stokes, whose seizin was proved. To show the 
 pedigree of the younger Daniel, the tenant first proved a marriage in Sept. 1739, between 
 one Daniel Mountjoy and Rebecca Stokes ; and then a deed, dated Sept. 1765, from one 
 Daniel Mountjoy, expressed to be " of all his right and title in and to the real estate of his 
 grandfather, Benjamin Stokes, or his mother, Rebecca Stokes." Possession had gone 
 according to the deed, which, at the time of the trial, was sixty years old. This statement 
 in the deed was holden prima facie evidence of Daniel Mountjoy, the grantor's descent 
 from Benjamin Stokes. Stokes v. Dawes, 4 Mason's Rep. 278. 
 
 (1) Vulliamy v. Huskisson, 8 Y. & Col. 82. 
 
 (2) Doe d. Johnson v. Pembroke (Earl), 11 East, 504. See also 7 East, 279. 
 
 (3) Rep. by Nicholas, 51, 53 ; Print. Min. pp. 203, 206. 
 
 (4) Roll. Abr. 678 ; B. N. P. 246 ; Doe d. Weld v. Ormerod, 1 Mo. & R. 466 ; Dike v. 
 Polhill, Ld. Raym. 744 ; Marohmont Peerage, p. 5 ; Kilmorrey Peerage, Print. Min. p. 10. 
 
 For the purpose of raising a presumption or of proving a pedigree by the recitals con- 
 tained in an ancient instrument, the probate of a will before the proper officer, or the 
 record thereof in the office as required by law, has been held admissible. Russell v. 
 Schuyler,22 Wend. 277. 
 
 (5) Vide infra, where the subject of the lis mota is considered. » 
 
 (6) Taylor v. Cole, 7 T. R. 8, n. 
 
SEC. IV.] Forms of Proof in Matters of Pedigree. 211 
 
 infant through his guardian,(l) that the party making it was alive,(2) or 
 that the depositions were not accompanied by the answer. (3) The judges, 
 however, held, upon a question put to them by the House of Lords in the 
 Banbury Peerage Case, (4) that a bill or depositions in chancery, in a suit 
 to perpetuate testimony, could not be received as evidence in the courts 
 below, on the trial of an ejectment against a party not ftlaiming or deriving 
 in any manner under the plaintiff in the chancery suit, either as evidence 
 of the facts therein deposed to, or as declarations respecting pedigree. 
 They added (though the question does not appear to have been put 
 *259 *to them) that it would not make any difference in their opinion, if 
 the bill had been a bill seeking relief. 
 
 But the judges, in their answer to the question put to them by the House 
 of Lords, appear to consider the existence of a controversy {lis mota) as 
 invalidating the deposition ; and it certainly has been the practice of the 
 House of Lords, both before and since the opinion was delivered, to admit, 
 as evidence of the pedigrees of claimants of peerage, bills and answers in 
 chancery made in suits where the facts of the pedigree were not in dispute, 
 but only incidentally stated. (5) 
 
 In the report of the attorney-general (Sir Arthur Pigott) on the claim of 
 Charles Augustus Ellis to the barony of Howard de Walden, in 1806, he 
 stated that part of the evidence offered to him in support of the claimant's 
 pedigree, was a bill and answer in chancery with the decree thereon, which 
 
 (1) Eccleston v. Petty, Garth. 79 ; S. C. as Eccleston v. Spoke, Comb. 156 ; 13 Vin. Ab. 94. 
 
 (2) Hilliard v. Phaly, 8 Mod. 180. 
 
 (3) Piercey's Case, Jones, 164. 
 
 (4) 3 Selw. N. P. 759 ; S. C, 1 Sim. & Stu. 153 . Le Marcliant's Gardiner Peerage, App. 
 411. And see the opinions of the judges in the Berkeley Case, 4 Camp. 412. 
 
 (5) Roos Peerage, Print. Min. 1804, pp. 293, 294 ; Zouch Peerage, Print. Min. 1804, p. 
 221 ; Slane Peerage, Print. Min. 1830, part 1, p. 32 ; part 2, p. 42 ; Netterville Peerage, 
 Print. Min. 1837, p. 43. 
 
 Note 97. — Concerning the quality of being ante litem motam, which the English court 
 still consider essential to the character of hearsay evidence (see per Lord Tenterden in 
 Doe ex dem. Fatter v. Randall, 2 Moore & Payne, 35), the American cases are not uniform, 
 though, perhaps, there is little difficulty in seeing to what they must finally come. After 
 the rule admitting these declarations had been put with great caution in an early case in 
 Pennsylvania, which says that hearsay, a great while ago and before any dispute stirred, 
 was received (Strickland's Lessee v. Poole, 1 Dall. 14, A. D. 1765) ; a cause came to a 
 hearing in the same state before Washington, J., sitting as chancellor (U. S. C. C, A. D. 
 1831), which brought the rule into direct discussion, as it was presented by the Berkeley 
 Peerage Case, stated in the text. Depositions taken in another cause, in relation to the 
 title now in question, depending on pedigree, were offered by the plaintiffs as hearsay to 
 prove the pedigree, which was necessary to making out their case. This was objected 
 to on the ground that the declarations were made post litem motam, and the cases in the 
 text were cited against their admission. Washington, J., did not consider himself bound 
 by those cases ; and he admitted the evidence, after a very full examination of ancient 
 and modern authorities. He strongly inclined to think that the rule of post litem, motam 
 had never been recognized in the United States, though he had not had time to examine 
 the American cases. He mentioned, however, Jackson ex dem. Ross v. Cooley (8 John. R. 
 128), and cited 1 Teates, 17, 152, and Swift's Law of Evidence, 133. These were in 
 addition to the books and cases cited by the plaintiff's counsel, which were 4 Dall. 128 ; 
 Bar V. Gratz, 4 Wheat. 330 ; 2 Hen. & Munf. 167 ; 1 Wheat. 6 ; 7 Cranch, 390 ; 1 Wash. 
 133 ; 2 Id. 146, 148. He said he would receive the depositions, the death of the deponents 
 being first proved. Boudereau v. Montgomery, 4 Wash. C C. Rep. 186. It is doubtless 
 true that, at this time, the point had not been distinctly passed upon and denied or 
 recognized by any American court, whose reported decision had appeared. It had, how- 
 ever, been incidentally noticed in Chapman v. Cliapman, 2 Conn. R. 347, A. D. 1817 ; and 
 afterwards in Elliott v. Peirsol's Lessee, 1 Peters' R. 338. In David v. Sittig (1 Mart. Lou. 
 R. (N. S.) 147, 149), the passport of the father, used to prove the age of the son, was very 
 cautiously put as having been made ante litem, motam. See also Gregory v. Baugh, 3 
 Leigh, 665, recognizing the general doctrine of the lis mota. (As usually stated, the rule 
 allowing hearsay evidence in cases of pedigree, implies that it cannot be invoked to let in 
 declarations made post litem m,otam. The People v. Pult(m Fire Ins. Co., 35 Wend. 305 ; 
 Jones V. Jones, 3 Strobh. 815 ; Matter of Hall, Wallace, jr., 85; Richards v. Swan, 7 Gill, 
 366 ; Stone v Strand, 6 Rich. 806.) 
 
212 Forms of R-oof in Matters of Pedigree. [ch. viii. 
 
 he considered as adequate evidence ; because the bill having set forth the 
 pedigree to show an heirship, the answer did not controvert such 
 
 *260 *heirship ; and the decree, after giving leave to the plaintiffs to bring 
 an ejectment to try the title, directed the defendant to admit the 
 
 heirship. (1) This evidence had been admitted by the House of Lords in 
 
 an earlier claim to the same barony, (2) and was again admitted in the claim 
 
 upon which this report was made. (3) 
 
 General rule. The general rule upon this subject may perhaps be 
 thus stated — that recitals of facts, which are not in dispute, may be 
 admitted as ordinary declarations : but recitals of facts in controversy are 
 inadmissible. 
 
 Engravings upon rings, (4) and charts of pedigree, either made by mem- 
 bers of the family,(5) or found among family documents,(6) or hung up in 
 family mansionSjC?) have been received in evidence. Pedigrees that have 
 been thus hung up are admissible, even without proof of their having been 
 made by the directions of the family, on the ground of being acknowl- 
 edged by the family ; their publicity in the family supplying the defect 
 of proof in not showing that they were declarations made by members of 
 the family. (8) 
 
 In the case of Davies and Lowndes, (9) upon the trial of a writ of right 
 a pedigree was tendered in evidence, at the foot of which was the followipg 
 memorandum : — " Collected from parish registers, wills, monumental inscrip- 
 tions, family records .and history. This account is here presented, as 
 correct and as confirming of \sic\ the tradition handed down from one 
 generation to another, to Thomas Lloyd, Esq., of Cwm Gloyne, this 4th 
 day of July, A. D. IVSS, by his loving kinsman, '&c., William Lloyd." 
 The signature was shown to be in the handwriting of William Lloyd, who 
 was one of the ancestors of the demandant. On the back of the docu- 
 ment was an indorsement in the handwriting of Thomas Lloyd, in these 
 words : — " A true account of my family and origin ; Tl^omas Lloyd, Cwm 
 Gloyne." 
 
 This document was insisted upon by the counsel for the demandant as 
 being altogether admissible ; but the Court of Common Pleas rejected it, 
 as being upon its face a mere compilation from existing documents, which 
 ought to be produced as the primary evidence. It was then tendered as 
 admissible in part, viz : as evidence of the pedigree of certain 
 *261 branches *therein named, or as evidence of who were the relations 
 of certain parties living at the time. The court, however, rejected 
 it upon every ground, considering that no part of it was legally admissible. 
 
 A bill of exceptions having been brought, the Court of Exchequer 
 Chamber held, that the document had been improperly rejected, it being 
 at all events admissible to show the relationship of those persons who were 
 described by the framer of the pedigree as livmg, and who might be pre- 
 sumed to be personally known to him. (10) 
 
 The reasons given m the judgment of the court as delivered by Lord 
 Denman, C. J., are so important, and throw so much light upon the general 
 
 (1) Rep. by Att. Geo. 1806, p. 85. 
 
 (2) Claim of Sir John Griffin in 1781, Min. reprinted 1806, p, 15. 
 
 (3) Howard de Walden Peerage, 1806, Print. Min. p. 25. 
 
 (4) Vowles V. Young, 13 Ves. 144. 
 
 (5) Monclcton v. Att. Gen., 2 Russ. & M. 161. ,i 
 
 (6) De Liale Peerage Case, Rep. by Nicholas, p. 45. See also Berner's Barony Case, 
 Collins on Baronies, 838. 
 
 (7) Goodright d. Stevens v. Moss, 2 Cowp. 594. 
 
 (8) By Lord Brougham, C, in Monokton v. Att. Gen., 2 Russ. & M. 161. 
 
 (9) 5 N. C. 161, 166. 
 
 (10) S. C. (in error) 6 M. & G. 471. 
 
SBC. IV.] Forms of Proof in Matters of Pedigree. 213 
 
 question of the admissibility of such evidence, fhat no apology is necessary 
 for transcribing them here. 
 
 " It does not admit of any doubt that this pedigree, if it had been signed 
 by William Lloyd, with the date of 1733 and without any memorandum of 
 his, and had borne the memorandum indorsed by Thomas, would have been 
 altogether admissible. The signature of William Lloyd, one of the family 
 of the demandant, would have been equivalent to a declaration of the rela- 
 tionship of the persons therein mentioned. And the signature of Thomas 
 Lloyd, of Cwm Gloyne, would have amounted to a similar recognition by 
 another member of the same family. But it is argued that the memorandum 
 6f William Lloyd places this pedigree upon a different footing, and renders 
 it E.ltogether inadmissible. If this were so, there would still be a question 
 what the meaning of Thomas Lloyd's indorsement, coupled with the fact of 
 its preservation by him, was. If the words ' A true account of my family 
 and origin,' were written on the back of the document, merely as denoting 
 what its contents were — . a sort of index to it — the indorsement would not 
 amount to a recognition by Thomas of its correctness, and would not render 
 it admissible on the footing of its being equivalent to a declaration by 
 Thomas. If the words intended to convey, that the writer had satisfied 
 himself of the correctness of William's statement from independent sources 
 of information, that is, from his own knowledge of the traditions prevailing 
 in his own branch of the family, then the whol^ pedigree would have been 
 admissible as a declaration by one of the family of Cwm Gloyne. There is 
 some evidence of such a recognition to go to the jury for their considera- 
 tion : but passing by that objection, and adverting to the memorandum of 
 Wiluam only, the question is, whether that memorandum destroys the effect 
 of his recognition, and renders it wholln inadmissible in evidence, as the 
 lord chief justice and the judges of the commonjpleas have decided. 
 
 "The ground of that decision appears to have been that the memorandum 
 bore upon the face of it, a sort of certificate, that the statement in the 
 pedigree was merely secondary evidence of existing originals from 
 *262 *whieli it Tvas compiled, and that the absence of those originals was 
 not accoimted for ; and that if any part of the pedigree was derived 
 from legitimate sources, viz : personal knowledge or family tradition, it did 
 not appear distinctly which was such part, and therefore the whole was inad- 
 missible. We think this view of the case is not correct. 
 
 " A pedigree, wl^ether in the shape of a genealogical tree or map, or con- 
 tained in a book, or mural or monumental inscription, if recognized by a 
 deceased member of the same family, is admissible, however early the period 
 from which it purports to have been deduced. On what ground is this 
 admitted ?_ It may be, because the simple act of recognition of the docu- 
 ment, and consequent acknowledgment of the relationship stated in it, by a 
 member of the family, is some evidence of -that relationship, from whatever 
 source his information may have been derived ; because he was likely, from 
 his situation, both to inquire into the truth of such matters, and from his 
 means of knowledge to ascertain it. 
 
 If this be a correct view of the law, the pedigree in question was admis- 
 sible ; because it was certainly acknowledged by W. Lloyd to be correct. 
 " But the reason why a pedigree, when made or recognized by a member 
 of the family, is admissible, may be that it is presumedly made or recognized 
 by him in consequence of his personal knowledge of the individuals therein 
 stated to be relations, or of information received by him, from some deceased 
 member, of what the latter knew or heard from other members who lived 
 before his time. And if so, it may well be contended, that if the facts 
 rebut that presumption, and show that no part of the pedigree was derived 
 from proper sources of information, then the whole of it ought to be rejected ; 
 and so also if there be some, but an uncertain and undefined part, derived 
 
214 Forms of Proof in Matters of Pedigree. [ch. yiii. 
 
 from improper sources. But -where the framer speaks of individuals whom 
 he describes as living, we think the reasonable presumption is, that he knew 
 them and spoke of his own personal knowledge, and not from reference to 
 registers, wills, monumental inscriptions, and family records or history ;(l) 
 and consequently, to that extent, the statements in the pedigree are derived 
 from a proper source, and are good evidence of the relationship of those 
 persons. "(2) 
 
 *263 *Place where pedigree found. In the Chandos Peerage Case,(3') a 
 pedigree found in the Ashmolean Library at Oxford, unaccompanied 
 by any proof that it was made by a member of the family, or by any person 
 connected with it, was rejected. (4) 
 
 3Ionum,ents, inscriptions on tombstones. Inscriptions on tombstones are 
 constantly received in evidence in questions of pedigree, both in courts of 
 law and by the House of Lords, in claims of peerage; (5) and inscriptions on 
 coffin plates in family vaults and graves have also been given in evidence, 
 on the same ground, in several peerage cases. (6) Examined copies of those 
 inscriptions are admitted for the sake of convenience, the case forming an 
 exception to the rule, which does not admit copies except when the originals 
 are public books. The admissibility of this evidence is clearly not afected 
 by the circumstance of the originals being in a church or churchyard. 
 
 In the case of the Barony of Say and Sele, in 1781, part of the evidence 
 for the petitioner was an inscription on a tombstone in the burial ground 
 for Dissenters at Bunhill Field; (7) and in another case at Nisi Prius,(8) 
 
 (1) la the course of the argument, Alderson, B., had remarked : " The pedigree is Stated 
 to have been ' collected from parish registers, &c., and as confirming of the tradition han- 
 ded down from one generation to another ;' it is, therefore, derived from both sources. 
 Suppose a person to say, ' There is a certain tradition in my family, and I have looked 
 into history, parish registers, &c., and I am satisfied that such tradition is correct ;' is not 
 that the same, in effect, as whaj is stated here ?" 6 M. & G. 513. 
 
 (3) Id. pp. 534-539. In the same case, Parke, B., said, that the ground upon which 
 inscriptions on monuments, &c., were receivable, was, that they are presumed to have 
 been put up by a member of the family cognisant of tlie facts, and not on the ground of 
 recognition. But see Monckton v. Att. Gen., 2 Russ. & M. 161, cit. supra. 
 
 (3) Print. Min. p. 11. See infra, where the proper custody of documenls is more par- 
 ticularly considered. 
 
 (4) See also the Vaux Peerage, 5 CI. & Fin. 526. 
 
 (5) Goodright d. Stevens v. Moss, Cowp. 594. See also Vin. Ab. tU. Evidencei, T, b 87 ■ 
 13 Ves. 144, 514; B. N. P,233,- 7 T. K. 3, n.; 10 East, 130; Duncomb Tr. per puis, 434- 
 1 Lilly's Pract. Reg. 552 ; Sty. 208 ; Monckton v. Att. Gen., 2 Russ. & M. 163, ani cases 
 there cited ; Lisle Peerage, by Nicholas, 50, 173 ; Vaux Peerage, 5 CI. & Fin. 526 ; and 
 Peerage claims, passim. 
 
 (6) Chandos Peerage, Print. Min. p. 10 ; Rokeby Peerage, Print. Min. p. 4 ; Lovat Peer- 
 age, Print. Min. p. 77. 
 
 ,(7) Mr. Seijt. Hill's Collections in Line. Inn Library, Vol. 26, p. 173. 
 
 (8) Whittuck v. Waters, 4 C. & P. 376. 
 
 Note 98. — Hearsay of death seems to be receivable, under the same restrictions as that 
 respecting other matters connected with questions of pedigree. In those courts where 
 you may go out of the family, to general reputation, to the particular hearsay from 
 domestics and other acquaintances, where you take hearsay indifferently from the living 
 and dead, &c., on other questions of pedigree, you may do so as to death. On the other 
 hand, where, as in the English rule, you are tied up to the deceased members of the 
 family for hearsay, it is presumed that proof of death is to be similarly restricted. 
 
 The repute of the deceased's family, that he died at a certain time, was received in Doe 
 ex dem. Banning v. Griffin, and Doe ex dem. George v. Jesson, cited in the text. The 
 same thing was allowed in Pancoast's Lessee v. Addison (1 Harr. & John. 350, 356, 357), 
 and in Ewing's Heirs v. Savary (8 Bibb, 235) ; though, in the latter case, it was added as 
 an excnse. that tlie deceased resided abroad in a foreign jurisdiction. In another case, the 
 court say that the declarations of relatives, neighbors, and perhaps of intimate acquaint- 
 ances, have been received, but not so of a mere stranger ; and they refused the declaration 
 of one in Missouri, as to the death of a resident in the same state, it not appearing that 
 the speaker was even an acquaintance of the deceased. Dudley v. Grayson, 6 Monroe, 259, 
 263, 363. And in a previous case, it was held that neither loose neighborhood hearsay or 
 
SEC. TV.] Forms of Proof in Matters of Pedigree, 215 
 
 report, nor even common report, •will be received, where it appears that the deceased has 
 relatives in the state, or in an adjoining state. Hicholas v. Lansdale, Litt. Sel. Cas. 21. 
 
 »Biit a witness has been received to testify that, in 1811, being at the city where 
 *264 the deceased "resided in his lifetime, the witness was then and there told of his 
 death, without saying by whom she was told. Scott's Lessee v. Ratcliffe, 5 Pet. 
 81, 85, 86. The register of burials in Christ Church (Philadelphia) was received to show 
 the fact of death, and the time (Ijewis v. Marshall, 5 Pet. 470) ; and an entry in the 
 deceased's father's Bible, to show the death of his son, and the time when he died. Id. 
 Both the two last cases came on error from the state of Kentucky. 
 
 The certificate of an officer having charge of the state prison, was rejected as evidence 
 of the time when » prisoner died, though semb. if it were his legal duty to register the 
 death, a sworn copy, or the original, would be evidence. GUI v. Philips, 6 Mart. Lou. 
 Rep. (N. S.) 298, 300, 301. 
 
 "The proof was, that the witness heard that her relative was with the New York troops 
 in 1776 ; but she never heard anything more of him till fourteen years after, when 
 she was told he had been killed ; and the general opinion of her family was, that he 
 was dead. The court said, hearsay of his being killed in the army was admissible, for the 
 purpose of showing his death, and the place where he was killed. Jackson ex dem. 
 Miner v. Boneham, 15 John. Rep. 236. The fact that a soldier, or any other individual, 
 was missing at a particular time, accompanied with a report and general belief of his 
 death, must he, in many cases, not only the best, but the only evidence which can be 
 supposed to exist of his death. It is, perhaps, reasbnable that it should be held prima 
 facie sufficient. Jackson ex dem. People v. Btz, 5 Cowen's Bep. 319, per Sutherland, J. 
 " But a report that the body of a particular individual was found, and buried at a particu 
 lar time and place, carries, on the face of it, an admission that, if it is well founded, it is 
 not the best evidence which exists in the case ; for the body must have been found and 
 buried by human agents, who are presumed to be competent and capable of testifying to 
 the facts, especially if they did not occur at a very remote period." Hearsay and repu- 
 tation were therefore held inadmissible to prove such facts. Jackson ex dem. People v. 
 Btz, 5 Cow. Rep. 319, per Sutherland, J. 
 
 Proof that a witness went from his residence more than twenty years ago (as the witness 
 testifying understood), to New Orleans, or somewhere to the southward, and the wit- 
 ness testifying had since heard he was dead, was received without objection, to let in 
 secondary evidence of the dead or absent witness's attestation, by showing his hand- 
 writing. Jackson ex dem. Woodruff v. Cody, 9 Cow. Rep. 140. 
 
 In replevin, the plaintiff claimed that his intestate (A.) had title to a certain negro, 
 under a bequest to A. in a will of T. To show that A. survived the testator, the plaintiff 
 proved by a witness that the testator and A. died and were buried on the same day at their 
 father's ; that the witness was well acquai^ited with their respective families, was at their 
 funeral, and there heard from their father and one of their sisters, both father and sister now 
 being dead, that the testator died a few hours before A. Another sister, who also gave 
 him' the same information, was still alive and resided in Baltimore (within reach of pro- 
 cess). This hearsay evidence as to the time of the death was objected to, but admitted so 
 far as it respected the information from the deceased father and sister. On appeal, held 
 well. The court said it did not appear that the living sister saw the deaths ; nor if she 
 did, would the court ei%n intitnate that the hearsay was not still admissible. Raborg's 
 adm'x V. Hammond's Adm'r, 2 Har & Gill, 48, 53. 
 
 In a late English case, it became necessary to show the determination of a life estate, by 
 proving the death of a cestui que vie. The register of a.dis3enting chapel was repudiated 
 as incompetent, though after considerable hesitation, a tombstone inscription was received 
 for that purpose. But hearsay iji the deceased's family was denied. Park, J., saying, " this 
 is not a question of pedigree, where hearsay in the family is admissible." Whittuck v. 
 Waters, 4 Carr. & Payne, 375. Quere. If the proof did not rest on the same principle as 
 it would in a case of pedigree, how can the proof by the inscription be sustained, which 
 is equally hearsay ? The decisioa .was at Nisi Prius, and seems not to have been fully- 
 considered. See Newham v. Raithby, 1 Phill. 315. As to hearsay of marriage, see notes 
 89, 91. 1# in action of ejectmenll, the recent death of one of the heirs at law cannot be 
 established by hearsay evidence, that soon "after his father's death he left this state and 
 went to reside first in the Sourthern states, and afterwards in Texas, dying at Victoria in 
 tHSit state. " The ground upon which the admission of secondary evidence, in cases of 
 pedigree, rests, is that from the great lapse of time, remoteness of the occurrence, or 
 other circumstances, the law presumes for the ends of justice, that original or direct evi- 
 dence is not attainable ; that all memorials of the fact are lost ; and that there are no 
 witnesses living." So where the death occurred recently, and proof of the fact is neces- 
 sary to show that plaintiffs succeeded to deceased's shai:e in the premises sought to be 
 recovered, the death must be proved directly. Fosgate v. Herkimer Man. & Hydraulic 
 Co., 13 Barb. 353 ; 2 Kern. 580. A newspaper announcement in this state of a death in 
 Texas, is no evidence of the death. S. C, 9 Barb. 387. And it is not competent to prove 
 the death of the mortgagor by hearsay, in support of a recent statute foreclosure. Cole 
 V. Moffitt, 30 Barb. 18. So where, in the case of a conveyance by trustees, it became 
 
216 Forms of Proof in Matters of Pedigree. [ch. Tin. 
 
 *265 *Parkj J., admitted, though with some hesitation, an inscription on a 
 tombstone in a Dissenter's burial ground, for the purpose of proving 
 the death of a cestui que vie. There does not appear, however, to be any- 
 good ground for the learned judge's doubts upon this subject; as the 
 admissibility of the inscription depends on a totally different principle from 
 that of the admissibility of registers. 
 
 An inscription on a foreign monument has also been received jn a peerage 
 case ;(1) and where monuments have been decayed by time, or surreptitiously 
 destroyed or removed, evidence of the recollection of witnesses respecting 
 them, and as to the inscriptions they bore, has been admitted by the House 
 of Lords. (2) But in such cases the prior existence of the monuments and 
 the genuineness of the inscriptions are required to be established in the 
 Strongest manner that the circumstances of the case will admit. (3) 
 
 The credit due to monumental inscriptions must necessarily depend much 
 upon the circumstances, whether they are cotemporaneous with the events 
 to which they relate, and whether they are set up in the view or with the 
 knowledge of surviving relatives. (4) It is to be observed that this species 
 of evidence often trenches upon the rule which rejects secondary evidence ; 
 
 necessary to show that one 'of the persons named as such, was dead when thj conveyance 
 was executed, it was held that & memorandum on the fly-leaf of the hook of records of 
 the town of Eochester, made by some unknown person, could not be received as evidence 
 of ps death ; and that a memorandum of such death made by a surveyor upon his field 
 book of a survey, is not admissible even after his death, it being no part of his duty to 
 make such an entry. The alleged death occurred in 1778. Ridgeley v. Johnson, 11 
 Barb. 537. 
 
 There is a presumption in favor of the continuance of life. Letts v. Brooks, Hill & 
 Denio, 36. The presumption of death arises only where the party alleged to be dead left 
 the place of his domicile and has not been heard from for seven years or more. Duke 
 of C. V. Graves, 9 Barb. 595. Joseph Leo Wolf left New York in the steamship Presi- 
 dent, March 11, 1841, and nothing being ever heard of the vessel, passengers or crew, it 
 was presumed that he died before the first of May, putting an end to a power of attorney 
 given by him to his agent. It was presumed that the vessel was lost, within the longest 
 usual duration of the voyage. Oppenheim v. Leo Wolf, 3 Sand. Ch. 571. The same 
 presumption was made in respect to the commander of the United States sloop-of-war 
 Albany ; he left Aspinwall in the sloop September 29, 1854, for New York, and nothing 
 was ever heard of the vessel, officers or crew, and the court presumed liis death prior to 
 November 37th, the usual voyage being eighteen days. Geny v. Post, 13 How. 118. 
 
 In Munro v. Merchant (36 Barb. 383), the plaintiff in order to prove the death of Isaac 
 Van Dam and Thomas Moone, introduced and read in evidence exemplified copies of 
 their respective wills, one dated 10th November, 1749, and proved 7th May, 1750, and the 
 other dated Ist August, 1756, and proved 16th September, 1756, 4ind letters of adminis- 
 tration granted to the respective executors ; and the testimony having been objected to. 
 was held prima facie evidence; of the deaths of the persons named. 22 Wend. 377. 
 Admission of the will, to probate proceeds upon proof of the death of the testator, and 
 is therefore an adjudication upon {he fact. In an action by the lessor to recover possef- 
 sion of lands wliiclji had been leased to three persons during the life of the longest liver 
 of them, the death' of two of the lessees was distinctly j^roved, and it was shown that 
 the third, if living, would be eighty years old, that he had not been heard from for fifty 
 years, and that for over forty years he had been reported, among his family and connec- 
 tions, to be dead ; and this evidence was held admis^ble. Clark v. Owens, 18 N. Y. 
 Kep. 434. 
 
 In a recent case, a parish register stating the fact of marriage, at a private house, 
 signed by the parties, was received, though the license was not produced, to connrm evi- 
 dence of cohabitation and general repute. Doe d. Wyndham v. Qrazebrook, 45 Eng. 
 Com. Law, 406. So, a declaration made by the party, that a . certain paper was tlia 
 mother's marriage certificate, it having been made before any controversy on the subject 
 had arisen. Jenkins v. Bvans.. 59 Id. 313. 
 
 (1^ Hastings Peerage, Print. Miri. p. 197. 
 
 (3) In the Roscommon and Leigh Peerage Cases. The latter case turned wholly on the 
 existence of a monument, alleged ,to have been surreptitiously removed from Stonely 
 Church. Numerous witnesses were examined for and against its existence. See the 
 printed evidence, 1839. 
 
 (3) See Tracy Peerage, 10 CI. & Fin. 154, 181, 183, 189, 193. 
 
 , (4) See Athenry Peerage, Print. Min. p. 45 ; Vaux Peerage, Print. Min. p. 139 ; .,S. C, 
 6, CI. & Fin. 526 ; Fitzwalter Peerage, Print. Min. p. 34. , 
 
SBC IT.] Forms of Proof in, Matters of Pedigree. 217 
 
 inasmuch as the author of the evidence may be alive. In Monckton v. The 
 Attorney-Generi,l,(l) Lord Brougham, C., considered such inscriptions to 
 stand upon the same footing as rings, pedigrees hung up, and family Bibles, 
 and as admissible on account of their publicity, without connecting them 
 ■with the family. Such inscriptions, ho-wever, njiay always be impeached, and 
 their evidence seems peculiarly open to attack, not only on account of the 
 great facility of forge/y, but also because the preparation of them is often 
 committed to uniertakers, executors, or other persons not members of the 
 family, or because perhaps the inscription has been delayed, till a period 
 when the facts arc but imperfectly remembered. In the claim of Katherine 
 Bokeman to the Barony of Berners, an inscription upon the tombstone of 
 a person who was one of the links in the pedigree, was given in evidence ; 
 but it appeared from the entry of her burial in the parish register, and from 
 her will, that there was a mistake of a year on the tombstone as to the time 
 of her death; and the mistake is said to have arisen from a delay in laying 
 down the stone. (2) 
 
 *266 *Armoriaf Bearings. Armorial bearings have sometimes been relied 
 on in questions of pedigree. Lord Coke speaks of its use to the 
 bearers in "manifesting of what families they be;" (3) and Siderfin says: — 
 " Arms serve to distinguish family from family, and to prevent branches of 
 the same family interfering with one another." (4) So long as the heralds 
 possessed and exercised the power of punishing usurpations, some credit 
 may have been due to this evidence, jyobably on the ground that, by the 
 assumption of a particular bearing, the party must have meant to affirm 
 that he was connectejd in that manner with the family to which it belonged. 
 The claim of Sir Michael Blount to the barony of Mountjoy, in the time of 
 Queen Elizabeth, turned almost wholly on the arms in a window at Iver, in 
 Buckinghamshire, set up in the reign of Henry the Seventh ; and elaborate 
 arguments of the heralds have been preserved, (5) as to the credit due to 
 this evidence, in support of the claim of Sir Michael as heir male of the body 
 of Walter, fii'St Lord Mountjoy, in contradiction to the books in the herald's 
 office, which deduced his descent from Thomas, a brother of this Walter. 
 
 In the modern case of the Barony of Chandos,(6) where the claimant 
 alleged that he was descended from the third son of the first Lord Chandos, 
 he was allowed to give in evidence the arms of his family in the herald's 
 visitation books, and upon seals of deeds, delineations on parchment, and 
 other family papers ; which arms a herald proved were those of the Chandos 
 femily, with the mark of the third branch. An achievement with the same 
 arms was likewise produced, which the mother of the claimant proved to 
 have been hung up in the family mansion when she first married, and that 
 she had heard her husband say it had belonged to his grandfather. (7) 
 
 The value, if not the admissibility, of this evidence, depends upon its 
 antiquity; and therefore the attorney-general, in the Chandos Peerage 
 Case,(8) cross-examined the herald, to show that, at the time when it 
 
 . (1) 2 Rnss. & M. 163. See also by Lord Erskine, C, in Vowlos v. Young, 13 Ves. 144. 
 
 (2) Collins on Baronies, 363, and note. There are several well known instances of 
 similar mistakes. In the epitaph upon Spenser's monument in Westminster Abbey, there 
 is a misstatement as to the time of his birth of no less than forty years, and as to that of 
 his death of three years ; the monument was erected by the Countess of Dorset thirty 
 years after the poet's death. See Biog. Brit. nom. Spenser. The time of death is erro- 
 neously stated on the monument of Sterne, See Biography, prefixed to his Works, ed. 
 1816 ; and the time and place of birth on that of Goldsmith, see BosweU's Johnson, Vol. 
 3, p. 69, Oxford ed. 1826. See also Aikin's Mem, of Goldsmith. 
 
 (3) Co. Litt. 27, a. 
 
 (4) 1 Sid. 354. 
 
 (5) Had. MSS. 1386, 6141. 
 
 (6) Chandos Peerage, Print. Min. pp. 6, 24, 37. 
 
 (7) Ibid. pp. 40, 49. 
 
 (8) Print. Min. p. 40. The date of the first visitation was 1528. See Hnbbsck Ev. of 
 Vol. L 28 
 
218 Forms of Proof in Matters of Pedigree. \ [oh. vm. 
 
 *267 was *proved that the achievement before mentioned was in the 
 family of the claimant (about 1699), there was no aiJthority in exist- 
 ence to correct usurpation. The year of the last herald's visitation (1686) 
 seems to have been thought the time when this authoritj,j|pr at least the 
 exercise of it, ceased. When evidence of this kind is required, it is usual, 
 and indeed necessary, to call some officer from the Herald's College to 
 explain the meaning of different armorial bearings. (1)* 
 
 In the Huntingdon Peerage Case, (2) the attorney-general admitted in 
 evidence an armorial shield, carved upon oak, which had ]been given by the 
 late Earl of Huntingdon to the father of the petitioner, aad which was pro- 
 duced from a family chest. So, in support of the presumption of a marriage, 
 evidence has been adduced, that the husband impaled Ms wife's arms. with 
 his own on his plate, seals and carriage. (3) 
 
 Conduct or treatment in family. It may be convenient to mention, in 
 treating of the subject of pedigree (though it perhaps more properly belongs 
 to the head of presumptive evidence), that the conduct of parties to each 
 other, the disposition of property, the devolution of property and title, and 
 similar circumstances, are frequently received in questions of pedigree on 
 the footing of hearsay. They are properly /acfe, from which an inference as 
 to tjtie opinion and belief of families is drawn ; and, therefore, they ultimately 
 rest upon the same basis as hearsay evidence of family tradition. Lord 
 Mansfield, C. J., speaking of a father bringing up a son as legitimate, said : 
 "This amounts^to a daily assertion that the son is legitimate." (4) And in 
 Goodright v. Saul, (5) Ashurst, J., observes, that in that case there were 
 strong circumstances to show that the son was a bastard ; amongst others, 
 a very forcible one occurred, namely, that the son had taken a different 
 name from his birth — the name of the person with whom his mother was 
 living at the time, which had been retained by him and his descendants ever 
 since ; this was a very strong family recognition of Jiis illegitimacy." In 
 the Leigh Peerage Case, (6) much stress was laid upon the alleged fact that 
 an ancestor of the claimant, in indigent circumstances, had once paid a visit 
 to Lord Leigh, which he used to boast of among his neighbors, and that his 
 Lordship had given him a suit of clothing. And in the Clinton Peerage 
 
 Case,(7) part of the evidence for the claimant was, that the sole 
 *268 *descendant of an elder branch of the family, who died unmarried, 
 
 had bequeathed several family pictures to a person who was the 
 claimant's undoubted ancestor; and that the sole descendant of another 
 elder branch had limited certain estates to the right heirs of his maternal 
 grandfather, which estates were then in the possession of the claimant as 
 such right heir. 
 
 In the' Banbury Peerage Case, (8) the illegitimacy of the claimant was 
 principally established by inferences arising out of the conduct of the 
 parties ; as that the birth was concealed, and that the child took the name 
 of Vaux ; and that Lord Banbury accepted dignities from the king, and 
 made a disposition of his property inconsistent with the idea of his know- 
 Success. 543. And see further as to the authority of the Herald's Visitation Books, Rus- 
 sell's Case, 4 Mod. 128 ; Oddis v. Domville, Show. Ca. Pari. 66 ; Blunt v. Blount, 1 Atk. 
 295. As to the Earl Marshal's Book, see Lisle Peerage Case, p. 12 ; Vaux Peerage, 5 CI. 
 & Fin. 526. With respect to the evidence of the Herald's books, mde infra, where the 
 subject of public documents is more particularly considered. 
 
 (1) See the Chandos Peerage Case, ut supra, and the other cases above referred to. 
 
 (2) Huntingdon Peerage by Bell, p. 380 ; Attorney-General's Report, p. 359. 
 
 (3) Hervey v. Hervey, 2 W. Bl. 877. 
 
 (4) In the Berkeley Peerage Case, 4 Camp. 416. See post, note 182, p. 630, 681. 
 
 (5) 4 T. R. 356. 
 
 (6) Print. Min. p. 298, et seq. 
 
 (7) Claimant's Case, Mr, Serjt. HilVs Collections, Vol. 30, p. 331. 
 
 (8) 1 Sim. & Stu. 153 ; S. C, App. to Le Marohant's Report of tho Gardiner Peerage, n. e. 
 
SEC. IV.] Mrms of Proof in Matters of Pedigree. 219 
 
 ing that he had any children. And in the Gardiner Peerage Case,(l) 
 where a great deal of evidence was adduced as to the conduct of the parties 
 concerned, Lord Eldon, C, says that evidence of conduct, and of declara- 
 tions connected with conduct, were to be considered in order to come to a 
 just 'determination upon the subject of the claim. 
 
 In the Tracy Peerage Case, where the question was, whether A., from 
 whom the claimant traced his descent, was the son of B., the fact that all 
 the members of B.'s family appeared to have been mentioned in his will, 
 but that no notice was taken of A., was considered strong evidence, either 
 that he was not the son of B., or at least that he had- died without issue 
 before the date of the will. (2) So, where the object was to show that a 
 man had died without issue, the production of his will, in which no notice 
 was taken of his family, and whereby he left his property to collateral 
 relations or strangers, was considered cogent evidence to show that he died 
 without children. (3) 
 
 Peclaration upon declaration. Thei;e appears to be no objection, in 
 questions of pedigree, to receiving hearsay in the second degree, when 
 both declarants are within the family. Accordingly, it has been held; that 
 the declarations of a deceased lady, that her first husband was accustomed 
 
 to make certain statements respecting the pedigree of the family, 
 *269 were receivable in evidence. (4) And the *same principle has been 
 
 recognized in a case in chancery. (5) Indeed common reputation 
 in the family is admissible in evidence, if proved by a member of it. (6) 
 Thus, in order to prove a person to have died unmarried, a relative was 
 allowed to state, that according to the repute of the family he had died in 
 the West Indies, and that she had never heard in the family of his being 
 married. (7) Kor is it necessary to show that the declarations were cotem- 
 poraneous with the events to which they relate. (8) 
 
 Inquisitions post mortem. Evidence of pedigree is frequently presented 
 in other forms, and derived from other sources, besides those which have 
 been enumerated ; and particularly from public documents, as inquisitions 
 post mortem, parish books, parish and marriage registers. But the admissi- 
 bility of these documents and ot heralds' books, which have been incidentally 
 noticed, depends upon principles differing in some respects from those which 
 have been treated of in the present section, and which require a separate 
 consideration. (9) In the same part of the work will be more conveniently 
 considered the cases relative to various kinds of unauthorized registers 
 containing evidence of pedigree. 
 
 (1) See the speech of Copley, Att. Gen., in the Gardiner Peerage Case, p. 285. 
 
 (3) By Lord CampbeU, 10 CI. & Fin. 190. See also Eobson v. Att. Gen., Id. 498 — 500. 
 
 (3) Hvmgate v. Gascoyne, 2 Phill. 25. See farther upon this subject, Morris v. Davies, 5 
 01. & Fin. 163, 241. et seq; Townshend Peerage, 10 CI. & Fin, 289 ; R. v. Mansfield, 1 Q. 
 B. 444. 
 
 (4) Doe d. Futter v. Randall, 2 M. & P. 20, by Best, C. J. In the earlier case of Johnson 
 V. Lawson (2 Bing. 88), his Lordship observed that " hearsay two deep" never could be 
 evidence. But in the case his- Lordship aUuded to (Brown v. Shelley), the evidence con- 
 sisted of statements made by a deceased phyacian of declarations by a deceased relation. 
 Common repute in a family may often arise from hearsay more than "two deep." 
 
 (5) Monckton v. Att.-Qen., 2 Russ. & M. 165. See also Athol v. Ashburnham, B. N. P. 
 295 ; Slaney v. Wade, 7 Sim. 611 ; S. C, X Myl. & C. 355 ; Bobson v. Att.-Gen., 10 CI. & 
 Fin.' 500-503 ; Davies v. Lowndes, 6 M. & G. 535-527. 
 
 (6) See Grimwade v. Stephens, cit. B. N. P. 294 ; Doe d. Barring v. Griffin, 15 East, 293 ; 
 Stafford Peerage, Print. Min. p. 145. 
 
 (7) Doe d. Barring v. Griffin, ut supra. 
 
 (8) By Lord Brougham, C, in Monckton v. Att.-Gen., 3 Buss. & M. 157, 158. See also 
 Lovat Peerage, Print. Min. p. 89. 
 
 (9) Vide post. Vol. II, where the subject of public and official documents is more par- 
 ticularly treated of. Parish books frequently afford evidence on matters of pedigree. 
 Thus the date of Caxton's burial was fixed by a charge of twenty pence for two torches 
 
220 From, whom such Hearsay is receivaMe. [ch.. viir. 
 
 8. Of- the qualifications with which the hearsay is received in matters of 
 pedigree. 
 
 In matters, then, of pedigree, as defined by the preceding illustrations, 
 hearsay evidence in the Various forms that have been mentioned is receiva- 
 ble. But it remains to be stated under what qualifications it is received. 
 
 Requisite knowledge. As to qualifications — it is obvious that the value 
 of declarations in matters of pedigree, as indeed of all hearsay evidence, 
 must gresttly depend upon the knowledge which the declarant possessed of 
 the facts spoken to by him. It was long unsettled whether any, and what 
 kind of connection should have subsisted between the party making the 
 declaration and those to whom it referred. Forfaerly there seems to 
 *270 have been *no limitation to any particular class of persons; and 
 evidence of the reputation of the country or neighborhood, and* of 
 general tradition, as to the facts of descent or relationship, was in some 
 cases admitted. (1) Afterwards it was thought necessary that the hearsay 
 should proceed from those whose connection with the family afforded them 
 peculiar means of knowledge. " The doctrine of Lord Mansfield, C. J. — 
 that tradition is sufficient evidence in point of pedigree (2) — must," said 
 Lord Eldon, C, in the case of Whitelocke v. Baker,(3) " be understood as 
 it has been practiced and acted upon. The tradition must be from persons 
 having such » connection with the family, that it is natural and likely, from 
 their domestic habits and connections, that they are speaking the truth, and 
 that they could not be mistaken." 
 
 The nature of this connection was, however, undefined, though it does 
 not appear to have been thought requisite that the declarant should be 
 related to the family by blood or affinity. Upon several occasions at Nisi 
 Prius, the declarations of servants, phj'^sicians, and intimate friends have 
 been admitted; (4^ and the practice was countenanced by obiter dicta of 
 Lord Kenyon, C. J., Buller, J., and other judges. (5) But at a later 
 period. Lord Eldon, C, speaks doubtfully upon the point; (6) and after- 
 wards, in the case of Beer v. Ward,(7) Abbott, C. J., received the 
 declarations of servants and acquaintances, subject to further discussion, 
 expressing at the same time an opinion against their admissibility. The 
 question remained thus undecided, when it came before the Court of 
 Common Pleas, in the case of Johnson v. Lawson,(8) upon a motion 
 
 and four tapers used at his funeral, entered in one of the parish books of St. Margaret's 
 
 (1) Annesly v. Anglesea (Earl of), 17 How. Tr. 1160, 1195. Claim of Sir Michael 
 Blount to the barony of Mountjoy, temp. Elizabeth, where " common fame" was relied on 
 as evidence of ■ his descent ; Harl. MSS. 1386, 6141. And see as to general tradition, by 
 Lord Mansfield, C. J., in Goodright d. Stevens v. Moss, Cowp. 594. See also 2 W. Bl. 
 1099; 14 East, 330. In the Huntingdon Peerage Case, the attorney-generar admitted 
 affidavits of persons resident in Leicestershire, as to the reputation of the county : 
 Attorney-General's Report, 359. According to the Scotch law, fame is admissible in 
 questions of propinquity of blood ; Stair Inst. lib. 4, c. 42 § 16. And in the disputed 
 election of Scotch peers, 1790, the House of Lords admitted evidence, that it was the 
 general belief of the country, that a claimant was lineal descendant and lawful heir 
 mule, and that he was " habite and repute as sach," Prin. Min. of Evidence, p. 136. 
 . (2) In Goodright d. Stevens v. Moss, Co'Wp. 594. 
 
 (3) 13 Ves. 514. And see Vowles v. Young, infra. 
 
 (4) Athol (Duke) v. Ashburnham, (Lord), E. 14 Geo. II, B. N. P. 290 ; S. C, Gilb. Ev. 
 1\2. See a different statement of this case from a MS. of Mr. Wegg, in 2 Selw. N. P. 
 734, (5th edit.), and 9 B. Moore, 193 ; Uoe d. Bashnell v. Gore, Lane. Sum. Ass. 1768 ; 9 
 B. Moore, 187, n. ; Brown v. Shelley, E. 1776 ; 9 B. Moore, 187, n. cit. 2 Bing. 88, by 
 Buller, J., 3 T. R. 719. See also Walker v. Wiufrfield, 18 Ves. 446. 
 
 (5) By Lord Kenyon, C. .J., and Buller, J., in R. v. Eriswell, 3 T. R. 719. Buller, J., 
 cites an authority for admitting declarations of persons not of the family. See by Le 
 Blanc, J., in Weeks v. Sparke, 1 M. & S, 679. See also 13 Vos. 514. 
 
 (6) 18 Ves. 446. 
 
 (7) Printed report of second trial, pp. 189, 193, cited 9 B. Moore, 188 j 3 Bing, 87, 89. 
 
 (8) 2 Bing. 86; S, 0., 9 B. Moore, 183. And see Whitelocke v. Baker, 13 Ves. 514; 
 Goodright d. Stevens v. Moss, Cowp. 594. 
 
SEC. IT.] Fcom whom such Hearsay is receivable. 221 
 
 *271 for a new trial, *on account of the rejection of the declarations of -a 
 deceased housekeeper, that a certain person, under -whom the plaintiff 
 claimed was the heir of her master. The court were unanimous in thinking 
 the evidence properly rejected. Best, C. J., in delivering judgment, 
 observed that the admission of hearsay evidence in these questions must be 
 subjected to some limits, otherwise great uncertainty would ensue : that 
 the limitations to the declarations of relatives or members of the family 
 connected by blood or affinity afforded a certain and intelligible rule ; and 
 if that were passed, it might be necessary, on every occasion, to enter into 
 a long and almost endless inquiry as to the degree of intimacy or confidence 
 which subsisted between the family and the party who had made the decla- 
 ration. (1) 
 
 This authority has been recognized in later cases, as having established a 
 clear and definite rule upon the subject. Thus, in Doe d. Sutton v. Ridg- 
 way,(2) the dying declaration of a servant of a family concerning the 
 family pedigree was rejected. And in Crease v. Barrett, (3) it was said by 
 the court, that in cases of pedigree the hearsay must be derived from rela- 
 tives by blood, or from the husband with respect to his wife's relationship, 
 and that it was not admissible if it proceeded from servants or friends. (4) 
 
 Principle of limitation. The principle upon which the declarations ot 
 relatives only are to be received, was pointed out in the case of Vowles v. 
 Young ;(5) namely, that the law resorts to the hearsay of relatives upon 
 the principle of a feeling of interest, in the relation from whom the descent 
 is made out, to know the connections of the family ; and, therefore, that 
 the opinion of the neighborhood of what passed among acquaintances, 
 would not be admissible. (6) 
 
 Upon this principle, chiefly, the declarations of a deceased husband 
 respecting the legitimacy or descent of his wife, seem to be admissible, 
 though he was not related to her by blood ;(7) it may be remarked, also, 
 that the husband is interested in the succession of his wife to real property 
 (to which he might become tenant by the curtesy) j. as well as to personal 
 property (to which he would be wholly entitled). (8) An objection is said 
 to have been taken in one case, that the husband's declarations were inad' 
 missible, because made after the death of the wife when he was no longer 
 connected with her family ; but it was ovemil^i, upon the ground 
 *272 that *his knowledge must have been acquired at a time when he was 
 married to her. (9) 
 
 It may be observed, that there seems to be no limitation to -the rule as to 
 the admissibility of declarations made by relations by blood ; but with 
 regard to relationship by aflBnity it is different ; the rule in this last case 
 seems to be confined to the instance just mentioned, of declarations by a 
 husband as to his wife's relations. (10) 
 
 Illegitimate member of family. This principle has been carried so far, 
 that the declarations of an illegitimate son relating to one of his natural 
 
 (1) 2 Bing. 89 ; 9 B. Moore, 188, 
 (3) 4 B. & A. 53. 
 
 (3) 1 C, M. & K. 928. 
 
 (4) See also Monckton v. Att. Gen., 2 Buss & M. 159 ; Stafford Peerage^ Print. Min. p. 4. 
 
 (5) 13 Ves. 14a 
 
 (6) Id. 147. 
 
 (7) Ibid. ; Doe d. Nortbey v. Harvey, 1 By. & M. 297 ; Doe d. Futter v. BandaD, 2 Moo. 
 & P. 20. 
 
 (8) 13 Ves. 147. 
 
 (9) Vowles V. Toung, as cited by Burrough, J., who was counsel in the cause ; 2 Bing. 
 92 ; 9 B. Moore, 194. This statement does not appear in the report in Vesey. That a per- 
 son need not be connected with both the branches of the family, touclung which his 
 declaration is tendered, see 2 Buss. & M. 156. U 
 
 (10) By Parke, B., in Davies v. Lowndes, 7 Scott N. B. 188. 
 
222 From whom such Hearsay is receivahU. [ch. viii. 
 
 brothers has been ruled to be inadmissible. (1) In an earlier case, (2) where 
 the question was, whether a certain party deceased, through whom the 
 defendant claimed, was illegitimate by reason of his having been bom 
 before the marriage of his parents, evidence was tendered, on the part of 
 the plaintiffs, of declarations, made by the party, after he had conveyed 
 to the defendant's father, that he was a bastard ; that all the world knew he 
 was such, and that that was the reason of his selling the land so cheap to 
 the defendant's father, who might fight it out with the declarant's brother 
 (who was born after wedlock). Le Blanc, J., said, that a declaration made 
 under such circumstances was entitled to very little credit, and would avail 
 nothing of itself, but that he thought it admissible as the representation of 
 one of the family of the degree of relationship he bore to it. It would 
 appear, from the case just before cited, that this decision could not be sup- 
 ported upon that ground, for if the declarant were illegitimate, he would 
 bear no degree of relationship to" the family. But the ruling of Le Blanc, 
 J., may, perhaps, be upheld upon the ground that it was a declaration of 
 the status of the party making it, not referring it to any other member 
 of the family ; and the declarant may have learned the fact of his illegitimacy 
 from his own mother, whom the law would recognize, though but to a 
 certain extent, as his only relativ,e. (3) In the same case evidence was 
 
 given of the declarations of the parents as to the date of their mar- 
 *273 riage; of opprobrious epithets applied by the father *to his wife and 
 
 to the children alleged to have been born before the marriage, by 
 calling them bastards, and of declarations of the father on his death-bed, 
 who pointed to a younger son as his heir. It would seem, however, that 
 such declarations of the father as to the illegitimacy of his offspring are not 
 properly admissible ; for if the offspring were illegitimate, the alleged father 
 would bear no relationship to them. (4) 
 
 Declarations hy other persons. In the case of Annesly v. The Earl of 
 Anglesea,(5) to prove the birth of a child, the declaration of a midwife that 
 she had delivered the mother of a child, was offered in evidence, but was 
 held inadmissible. -In the same case, the declaration of a deceased lady, 
 that she had stood godmother to the child, was also after argument 
 rejected. (6) 
 
 On a question of legitimacy depending upon the validity of a marriage. 
 Lord Kenyon, C. J., in one case,(7) admitted evidence of a declaration by 
 the clergyman, that a friend of the wife had forbidden the bans ; the evi- 
 dence seems to have been received, on the ground of its being a confession 
 by the clergyman, that he had married the parties, without the bans 
 having been duly published ; and therefore made against his interest ; but 
 it has since been decided in the Sussex Peerage Case, (8) that, in a declaration 
 
 (1) Doe d. Bamford v. Barton, 3 Mo. & R. 28. 
 
 (2) Cooke V. Lloyd, Peake Ev. App. xxviii. 
 
 (3) In R. V. Nottingham (13 East, 57, n.). Page, J., said, a bastard being of years of dis- 
 cretion might upon an application for an order of bastardy, properly be examined as to 
 some circumstances relating to her illegitimacy, such as whether the putative father ha(f 
 acknowledged her to be his daughter, and whether she were constantly reputed to be his 
 daughter, and such like. As to general reputation on such a subject, it seems doubtful 
 whether it would be admissible ; but the acknowledgment of the putative father would of 
 coarse be admissible in such a case, as an admission against himself. See farther as to a 
 statement of illegitimacy made by the party himself, B. v. Bishworth, 2 Q. B. 476, 480. 
 
 (4) In the same case the mother was examined, to prove that the son, whose legitimacy 
 was in question, was born before wedlock. This evidence was admissible upon a different 
 principle. Vide aupra, Of the incompetmoy of the hmband or mfe. 
 
 (5) 17 How. St. Tr. 1157 
 (4 17" ~ - -- 
 
 \ 
 
 (8"ll CI. & Fin. 103, 
 
 h\ 17 How. St. Tr. 1160. 
 (7^Standen v. Standen, Peake, 45. 
 
SBC. lY.] From whom such Hearsay is receivable. 223 
 
 against interest, the interest must be of a pecuniary or proprietary nature. 
 (1) And therefore in that ease statements made by a deceased clergyman, 
 "who had married the Duke of Sussex and Lady Augusta Murray at Rome, 
 were rejected, although it was urged that they were clearly against his 
 interest, as they related to an act either rendering him liable tq , a prosecu- 
 tion while living, or which at any rate he believed to be an illegal act. 
 Lord Lyndhurst, C, remarked: "It is not true that the declarations of 
 deceased persons are in all circumstances receivable in evidence, when in 
 some way or other they might injuriously affect the interest of the party 
 making them. Nor is it true, that because, while living, a party would be 
 excused from answering as to certain facts, his declaration as to those facts 
 become evidence after his death." (2) And Lord Brougham, C, observed : 
 " To say, if a man should confess a felony for which he would be liable to 
 prosecution, that therefore, the instant the grave J^Joses over him, all 
 *274 that was said by him is to be taken as evidence *in every action and 
 prosecution against another person, is one of the most monstrous and 
 untenable propositions that can be advanced." 
 
 In the Berkeley Peerage Case, (3) where it being proposed to give in 
 evidence declarations of a deceased clergyman, who was the domestic 
 chaplain of the Earl of Berkeley when the claimant was bom, that he had 
 married the Earl of Berkeley and the claimant's mother in the parish 
 church of which he (the clergyman) was vicar, and also his declaration that 
 the claimant was legitimate, the opinion of the judges was taken on the 
 admissibility of such evidence, and all the judges present agreed that 
 the evidence could not be admitted. 
 
 In the case of Neal d. Duke of ^thol v. Wilding, (4) the majority of the 
 judges would not allow a special verdict to be given in evidence to prove a 
 pedigree, on the ground that it was res inter alios acta, and because the 
 same evidence might possibly be produceable before the second jury as 
 before the first. 
 
 It has been thought that, notwithstanding the rule laid down for exclud- 
 ing declarations not made by relatives, the evidence of strangers as to 
 general reputation is receivable in matters of pedigree ; but the evidence 
 must be of a general nature ; as that A. was commonly reputed to be the 
 son of B. or the father of C. ; or that A. and B. were married. There does 
 not appear, however, to be any suflBcient reason for excepting such evidence 
 from the rule under consideration. For the evidence usually produced in 
 such cases, cannot properly be called hearsay evidence, as it consists of 
 original evidence of facts and circumstances : thus, in the case of general 
 reputation as to parties being married, it consists of evidence that they 
 were received in society as man and wife, or that respectable families in the 
 neighborhood visited them, or that the woman was churched after child- 
 birth, and the like ; all which circumstances show that the parties acted or 
 demeaned themselves as if they were married, and not as living in a state of 
 concubinage ; and thus the ground of a presumption is afforded, that they 
 were actually married. (5) 
 
 (1) See also Davis v. Lloyd, 1 Car. & K. 276. 
 
 (2) 11 CI. & Fin. 110. 
 
 (3) Print. Min. 1811, p. 655. See also 1 Car. & K. 277, n. 
 
 (4) 2 Str. 1151, Wright J., dissent. See B. N. P. 233. 
 
 (5) See infra, On Presumptive EMdence. See also the smnming up of Ahbot, C. J., in 
 Beer v. Ward, Report of the Second Trial, p. 294. And the case of Mr. Twisleton claim- 
 ing the barony of Say and Sele ; where, in proof of the marriage of his father and mother 
 he relied on the fact of their having been visited by Chief Justice Willes and several 
 families of respectability ; Serjt. Hill's Collection, Vol. 26, p. 169. See also Read v. 
 Passer, 1 Esp. 213 ; Leader v. Barry, 1 Doug. 174 ; S. C, 1 Esp. 353 ; Hervey v. Hervey, 
 2 W. Bl. 877 ; R. v. Bromley, 6 T. R. 330 ; Doe d. Fleming v. Bing, 266 ; Evans v. Morgan, 
 2 C. & J. 453. 
 
224 From whom such Hearsay is' receivahlei [ch. nil. 
 
 In a case of ejectment, (1) the lessor of the plaintiff, in order to estahlislj 
 his pedigree, gave evidence of the cohabitation and reputation of marriage 
 between his alleged father and mother. He also produced, a parish register 
 signed by them, stating the performance of a matriage ceremony at a 
 *275 *private house, and the archbishop's fiat for a Special license, with the 
 affidavit upon which the fiat Was obtained; ISTo search had been made 
 for the license ; but it appeared that there was no Tegular place of custody 
 for such documents. It was admitted by the counsel for the defendant that 
 the marriage might have been sufficiently proved by cohabitation and recep- 
 tion alone, but that the other evidence was inadmissible'; but the court held 
 that the affidavit, fiat and register were admissible, without production of 
 the license, to confirm the evidence of cohabitation and reception, and as 
 showing that parties bearing the name of the alleged father and mother had 
 been engaged in taking measures for contracting a marriage. 
 
 In one case(2) an entry in a baptismal register,(3) in which a child was 
 described as illegitimate, was received as some evidence of that fact, on the 
 ground that it might be regarded as evidence of reputation in the neighbor- 
 hood. (4) 
 
 Relation,ship of declarant to he proved aliunde. It has been decided, 
 that before the declaration of a relative can be admitted in evidence, his 
 relationship with the family must be proved aliunde, that is, must be estab- 
 lished by extrinsic proof, and not out of the declaration itself Thus, in 
 the Banbury Peerage Case, (5) the judges held, upon a question put to them 
 by the House of Lords, that a bill in Chancery, purporting to be filed by 
 the next friend of an infant styling himself the uncle of the infant, and 
 depositions in the same cause made by persons styling themselves relatives,- 
 servants and medical attendants of the family, were not evidence to show 
 that the parties were in fact what they styled themselves, so as to let in the 
 bill and depositions on the footing of declarations (supposing, them in other 
 respects admissible), in a case where legitimacy of the infant was in ques- 
 tion. And in the Leigh Peerage Case,(6) where a witness proved that he 
 had heard the declarant say he was a member of the family, the House of 
 Lords ruled the evidence insufficient, holding that the relationship between 
 the family and the party making the declaration must be first proved upon 
 oath, and that a mere statement of the fact by the party himself was not 
 evidence. 
 
 It would seem, however, that in proving ancient pedigrees, the rule 
 *276 *which these authorities appear to establish would be too exclusive, as 
 
 the relationship of the declarantwith the family is often a fact as old 
 and as difficult to prove as the relationship itself, which is the subject of the 
 declaration. Still some degree of evidence will be required, otherwise a 
 mere stranger, by claiming alliance with a family, might assume the power 
 of materially altering the rights of its several branches by making state- 
 ments in his lifetime respecting them. (7) And where a person is connected 
 
 (1) Doe d. Egremont v. Grazebrook, 4 Q. B. 406. 
 
 (2) Cope V. Cope, 1 Mo. & R. 269, 271, 276 ; S. C, 5 C. & P, 604. 
 
 (3) As to which, see post, Vol. II, On tlie AdmissibiiUy of Writings, not jitdicial. 
 
 (4) See further as to this, post, Vol. II, 
 
 (3) 2 Selw. N. P. 754. See also by Lord Eldon, C, in the Berkeley Peerage Case, 4 
 Camp. 419. The Banbury and Berkeley Peerage Cases upon this point were referred to 
 by Bayley, B., in Davies v. Morgan, 1 C. & J. 591. See also Stafford Peerage, Pyint. Min. 
 p. 5;' by Bayley, J., in R. v. AH Saints, 7 B. & C; Monckton v. Att. Gen., 2 Knss. & M., 
 156 ; by Best, C. J., In Doe d. Futter v. Randall, 2 M. & P. 24. See also Adamthwaite v. 
 Synge, 1 Stark. R. 188, that the custody of records is not to'l)e proved ex macerilmajudicii. 
 
 (6) Print. Min. p. 307: 
 
 (7) See by Best, C. J., in- Doe d. Putter v. Randall, 2 M. & P. 24. See also Vowles v. 
 Young, 13 Ves. 147. Upon other matters it is common to admit the declarations of copy- 
 holders, stewards, collectors, and persons in other capacities, upon the assumption that 
 they stood in the situation in which, upon the face of particular instruments, they purport 
 
SEC. IV.] Mule as to Declarations post litem motam. 225 
 
 with A. by evidence dehors, his declaration touching relationship between 
 A. and B. is admissible, without connecting the declarant with B.; other- 
 wise the declaration would be manifestly superfluous, as only proving the 
 very fact already established. (1) 
 
 It is not necessary that hearsay evidence upon questions of pedigree 
 should be cotemporaneous with the facts to which the evidence relates. 
 This would prevent the evidence from ever going back beyond the lifetime 
 of the person whose declaration is to be adduced in evidence. And the 
 rule, if it were so limited, would not answer the exigency for which it was 
 established. (2) 
 
 Another important qualifieation, under which hearsay evidence in matters 
 of pedigree is received, is that such evidence is not receivable if the declar- 
 ationSj &c., have been made^os^ litem motam. 
 
 The definition of what constitutes lis mota has already been given ; it 
 remains to show in what manner that doctrine is applicable in cases of 
 pedigree. 
 
 Declarations post litem motam, not evidence. The first case, in which the 
 precise time of making the declarations became the subject of particular 
 inquiry and consideration, was the Berkeley Peerage Case. (3) This case 
 came before the House of Lords, A. D. 1811 ; the only matter of controversy 
 depended on the reality of the first marriage alleged to have taken place 
 between the parents of the claimant. A question was, on that occasion, 
 proposed to the judges, in the following terms: (4) " Upon the trial 
 *277 of an ejectment respecting blackacre between *A. & B. (in which it 
 was necessary for A. to prove that he was the legitimate son of J. S.), 
 A., after proving by other evidence, that J. S. was his reputed father, offered 
 to give in evidence a deposition made by J. S. in a cause in chancery, 
 instituted by A. against C. D., in order to perpetuate testimony to the 
 alleged fact (disputed by C. D.), that he w&,s the legitimate son of J. S., in 
 which character he claimed an estate in remainder in whiteacre, which was 
 also claimed in remainder by C. D. ; B., the defendant in the ejectment, did 
 not claim blackacre under either A. or C. D., the plaintifi^ and defendant in 
 the chancery suit. According to law, could the deposition of J. S. be 
 received in evidence upon the trial of such ejectment against B., as evidence 
 of declarations of J. S., the alleged father, in matters of pedigree ?" The 
 judges who were present afterwards stated their opinions at length, and 
 with only one dissentient voice, agreed in considering the deposition of J. 
 S. to be inadmissible. 
 
 Lawrence, J., delivered his opinion in the following terms: (5) "The 
 declarations of members of the family, in matters of pedigree, are generally 
 admitted, from the necessity of the case; but the administration of justice 
 would be perverted, if such declarations could be admitted, which have not 
 a presumption in their favor, that they are consistent with truth. Where 
 the relator had no interest to serve, and there is no ground for supposing 
 that his mind stood otherwise than even upon the subject (which may be 
 
 to stand. Vide infra, declarations respecting general rights; and declarations against 
 
 (1) Monckton v. Att. Gen., 3 Russ. & M. 157. 
 
 (2) Monckton v. Att. Gten., Id. ; where the example is put, that the declaration of a 
 person as to the maiden name of his grandmother would be receivable, 
 
 (3) 4 Camp. 401. The earlier cases on the subject were contradictory. But the question 
 cannot be considered as having been fully discussed before the Berkeley Peerage Case. 
 
 The authorities prior to that case were Spadwell v. , Exeter Spring Ass. 1730 ; 
 
 Haywood v. Firmin, Sitt. after Trin. T. 1766, cited by Lawrence, J., in the Berkeley Peer- 
 age Case, 4 Camp. 410. In Ooodright d. Stevens v. Moss, Cowp. 594, Lord Camden ruled 
 for receiving the evidence ; Reynolds, C. B., and Eyre, J., for rejecting it. 
 
 (4) May 3, 1811, MS. ; S. C, 4 Camp. 403. 
 
 (5) 4 Camp. 409. 
 
 Vol. L 29 
 
226 Hule as to Declarations post litem motam. [ch. viii. 
 
 fairly inferred, before any dispute 'upon it has arisen), we may reasonably 
 suppose, that he neither stops short, nor goes beyond the limits of truth, in 
 his spontaneous declarations respecting his relations and the state of his 
 family. The receiving of these declarations, therefore, though made without 
 the sanction of an oath, and without any opportunity of cross-examination, 
 may not be attended with such mischief as the rejection of such evidence, 
 which in matters of pedigree would often be the rejection of all the evi- 
 dence that could be offered. But mischievous indeed would be the 
 consequences of receiving an ex parte statement of a deceased witness, 
 although upon oath, procured by the party who would take advantage of 
 it, and delivered under that bias which may naturally operate on the mind 
 in the course of a controversy upon the subject. Notwithstanding what is 
 said in the case of Stevens v. Moss(l), I cannot think that Lord Mansfield 
 would have held, that declarations in matters of pedigree, made after the 
 controversy had arisen, ought to be submitted to the jury. They stand 
 precisely on the same footing as declarations on questions of rights of way, 
 rights of common, and other matters depending upon usage ; and although 
 I cannot call to mind the ruling of any particular judge upon the subject, 
 yet I know that, according to my experience of the practice (an experience 
 of nearly forty years), whenever a witness has admitted, that what 
 *27Y he was going to state he had heard after the *beginning of a contro- 
 versy, his testimony has been uniformly rejected. If the danger of 
 fabrication and falsehood be a reason for rejecting such evidence in the 
 cases of prescription, that will equally apply in cases of pedigree, where 
 the stake is generally of much greater value." 
 
 Then, after referring to the decided cases, the learned judge added : 
 " The authorities being thus balanced, I think the point must be considered 
 as without any decision, and we must resort to principle and the uniform 
 practice which has obtained in questions of prescription. Hardships may 
 arise in rejecting declarations made between the commencement of the suit 
 and the time of trial • but such hardships are not confined to the case of 
 pedigree. In other cases, if witnesses die before the trial of the cause, the 
 party who relied upon their testimony must sustain the loss. For avoiding 
 uncertainty in judicial proceedings, general rules must be laid down and 
 adhered to, without regard to our feelings or our wishes on particular 
 occasions. Besides, the hardship may generally be avoided by a bill to 
 perpetuate testimony. Although the exclusion of declarations made in the 
 course of the controversy may prejudice some individuals, it is better to 
 submit to this inconvenience than expose courts of justice to the frauds 
 which would be practiced upon them if a contrary rule were to prevail. 
 That this is not an imaginary apprehension, will appear from what happened 
 in the Douglas and Anglesea causes ; in the first of which, fabricated letters 
 were given in evidence ; and in the second, false declarations. Notwith- 
 standing the danger of incurring the penalties of the crime of perjury, there 
 is scarce an assize or sittings in which witnesses are not produced, who swear 
 in direct contradiction, the one to the other : and it may be feared, that 
 persons, who have as little regard to truth, may be induced to make false 
 declarations, when they run no risk of punishment in this world, as no use 
 can be made of their evidence till after their death. We know that pas- 
 sion, prejudice, party, and even good will, tempt many who preserve a fair 
 character with the world, to deviate from the truth in the laxity of conver- 
 sation. Can it be presumed that a man stands perfectly indifierent upon 
 •an existing dispute respecting his kindred? His declarations post litem 
 motam — not merely after the commencement of the lawsuit, but after the 
 dispute has arisen, for that is the primary meaning of the word lis — are 
 
 (1) Cowp. 594. 
 
SEC. iv.J Hule as to Declarations post litem motam. 227 
 
 evidently more likely to mislead the jury than to direct them to a ri^ht con- 
 clusion, and therefore ought not to be received in evidence. I am likewise 
 of opinion that no deposition can be received in evidence as a declaration, to 
 prove a fact which it was the object of tjiat deposition to establish. A 
 deposition is the answer of the witness to such interrogatories as it is 
 thought expedient to put to him to establish certain facts which the plaint- 
 iff alleges, and on which the case depends. Consequently, a deposition is 
 considered a partial representation of facts, as to all persons who have no 
 opportunity of bringing out the whole truth by cross-examination ; and on 
 
 that account .all admit that, against a stranger, it cannot be received 
 *2Y9 in evidence as a deposition. How *then shall it be received as a 
 
 declaration ? In that case the circumstances of its being upon oath 
 cannot be regarded. To consider it a declaration on oath would be to 
 receive it as a deposition. As a declaration it is still subject to the same 
 vice and infirmity of being an answer to particular questions artfully put, 
 with an interested view, by one party behind the back of another." 
 
 Lord Mansfield, C. J., in his judgment in the same case, after giving the 
 same definition of lis mota, saying that the line of distinction was the origin 
 of the controversy and not the' commencement of the sidt, expressed his 
 opinion that all declarations are to be excluded after the controversy has 
 originated, whether it was or was not knovm to the witness ; he said, if an 
 inquiry were to be instituted in each instance, whether the existence of 
 the controversy were known at the time of the declaration, much time 
 would be wasted and great confusion produced. (1) 
 
 Statement in contemplation of litigation. In a late claim of peerage,(2) 
 a private pedigree, compiled by the father of the claimant with a view to 
 support a claim to certain estates, and laid before counsel for that purpose, 
 was held inadmissible by the House of Loi ds, as not being a spontaneous 
 effusion, but made for a particular object and in contemplation of litigation. 
 The peerage in this case was claimed through the mother of the claimant, 
 and not only were the controversies therefore different, but the father, who 
 compiled the pedigree, never could have had an interest in the present 
 claim. It also appeared, that when the claim was made to the estates, the 
 descent was taken for granted on both sides ; but their Lordships held that 
 this made no difference in the cases, as it might be equally for the interest 
 of each to admit a particular statement though contrary to truth. 
 
 Declarations are not to be rejected because made for the express purpose 
 of preventing disputes in a family. Vhus Lord Mansfield, C. J., observes : 
 (3) — " I have known advice given to a father and mother to make attested 
 declarations in writing under their hand, of the precise time of the birth 
 of the bastard eigne and the subsequent marriage, to prevent controversy 
 in the family touching the inheritance." And the judges, in their answer 
 to the third query in the Berkeley Peerage Case, say that, " an entry in a 
 Bible or any other book, or any other piece of paper, would be admissible 
 notwithstanding it was proved that such entry was made by a parent for 
 the express purpose of establishing the legitimacy of his son and the time 
 of birth, in case the same should be called in question afber his 
 *280 father's death." They add that the particularity of the entry *would 
 be a strong circumstance of suspicion ; but still it would be receiv- 
 able, whatever the credit might be to which it was entitled. (4) 
 
 Upon this subject Lord Brougham, C, observes forcibly, in Monckton v. 
 
 (1) 4 Camp. 417. 
 
 (2) Slane Peerage, Print. Min. 1830, part 2, p. 35, and part 3, p. 6 ; S. C, 5 CI. & Fin. 23. 
 (8) In Goodriglit d. Stevens v. Moss, Cowp. 591, 594. And see Monckton v. Att.-Qen., 
 
 2 Bass. & M. 164. 
 (4) 4 Camp. 418. 
 
228 JRule as to Declarations post litem motam. [ch. viii. 
 
 The Attorney General, (1) that Lord Mansfield's remarks in Goodright d. 
 Stevens v. Moss sanction the doctrine, that the having a distinct object in 
 view in making a declaration, by parol or in writing, even though the 
 object can only be gained by afterwards using the declaration in evidence, 
 is not sufficient to exclude the declaration. If the father or mother make 
 a pedigree for the purpose of preventing disputes' in the family, Lord Mans- 
 field, C. J., said in effect, that he would admit that pedigree in evidence, 
 even when those very disputes arise ; because it was not made with a view 
 to their own interest, but to preserve a constat, as it were, on record, of 
 facts peculiarly within their knowledge (which is one of the main grounds 
 of admitting such hearsay evidence), and that the observation — that it was 
 made for the purpose of settling family disputes, and may not have been 
 so spontaneous and natural as some of the dicta of the judges would seem 
 to require — shall only go to its weight and credit with the jury, and shall 
 not preclude its admission by the court. 
 
 It is not a valid objection to this kind of evidence that the party making 
 the declaration may have stood, or thought he stood, in pari jure with the 
 party tendering the declaration, and therefore might be under a bias. 
 Although the party, if he had been living, might have stood in the very 
 situation of the person who tenders his declaration in evidence, that circum- 
 stance is not sufficient to exclude it. (2) The reason of admitting the evidence 
 in these cases appears to be, that since competent knowledge is required to 
 make hearsay receivable in matters of tradition, and a probability also of 
 the declarations having occurred naturally in the course of familiar inter- 
 course ; it would almost dry up such sources of information, to require 
 further an absence of all bias on the subject of the declarations. It has 
 been thought to be some safeguard, sufficient at least to warrant the admis- 
 sibility of the evidence upon points where no better evidence can commonly 
 be expected, that the declarant could derive no advantage from his own 
 statements, and that there was at the time no exciting cause to induce him 
 to depart from the truth. (3) 
 
 Thus the declarations of a person entitled in remainder, stating the 
 extinction of the issue of persons standing in the line of entail between her 
 
 and the then possessor of the estate, were held admissible for the 
 *281 *plaintifF claiming through her.(4) And in a peerage case before 
 
 the House of Lords, a widow was allowed to prove the declarations 
 of her deceased husband in support of her son's title ; though the husband, 
 if living, would have had the right -fliich the declaration tended to estab- 
 lish. (5) But in the claim of Sir Cecil Bishopp to the barony of Zouch, 
 some private papers, purporting to be the pedigree of Lord Zouch, which 
 had been in the possession of a deceased lady, who was a branch of the 
 family, were held inadmissible by the House of Lords, it appearing that 
 this lady had conceived herself entitled to the peerage which the petitioner 
 claimed. (6) It is probable, however, that the true ground of rejection was 
 that the pedigree was compiled in contemplation of a claim. 
 
 (1) 3 Russ. & M. 164. In Slaney v. Wade (1 Myl. & C), supra, copies of a mural 
 inBoriptlon were held not objectionable, on the ground that, because at the time they 
 ■were made, the possibility of a controversy at some future period was contemplated. 
 ■ (2^ By Lord Brougham", C, In Monckton v. Att.-Gen., 2 Russ. & M. 159, 160. 
 
 (3) It is said by the court, in Harwood v. Sims (Wightw. 112), that the rejecting of 
 evidence of persons in pari jure, would cut up entirely all evidence of reputation. And 
 see the reasons of the Court of Exchequer in Moseley v. Davies, 11 Price, 163, and of 
 Graham, B., 13 Price, 236. 
 
 (4) Doe d. Tilmau v. Tarver, Ry. & Mo. 141. 
 
 (5) By Lord Tenterden, C. J , Ry. & Mo. 143. See the remark of Lord Brougham, C, 
 in this case, and in Monckton v. Att.-Gen., 3 Russ. & M. 160. 
 
 (6) Zouch of Haryngworth Peerage, Print. Min. 1804, p. 307. 
 
SEC. v.] Sear say with regard to Ancient Possession. 229 
 
 SECTION V. 
 
 Exceptions to the General Bule as to Hearsay, with reference to Ancient 
 
 Possession. 
 
 Ancient documents, evidence of possession. It has been seen that hearsay 
 evidence, in matters of private interest, not affecting any public or general 
 interest, is inadmissible, especially where the matters do not involve any 
 prescriptive right. But the admissibility of ancient documents, purporting 
 to constitute a part of transactions themselves (as being acts of ownership 
 or an exercise of right), stands upon a different principle. Such documents 
 are often the only attainable evidence of ancient acts of possession, which 
 may be of great weight in the investigation of titles, and they naturally 
 accompany and constitute a part of such acts. 
 
 Ancient documents, therefore, purporting to be a part of transactions, 
 and not a mere narrative of them, are, under certain qualifications which 
 will be noticed, receivable as evidence that those transactions really occurred. 
 And, in this sense, the documents may be called hearsay evidence of ancient 
 possession. Such evidence is very commonly adduced in practice to cor- 
 roborate modern use or possession. 
 
 Thus, upon a question as to the right of a lord of a manor to hold certain 
 land within the manor free frgm common, several counterparts of leases 
 found among the muniments of the lord of the manor, from which it 
 appeared that the land had been demised by the lord free from common, 
 
 were held to be receivable in evidence. (1) 
 *282 *In an action of trespass, (2) upon issue joined on a plea of justifica- 
 tion by virtue of a prescriptive right of fishery appurtenant to a 
 manor, old licenses on the court rolls, and leases granted by the lords of 
 the manor, in consideration of certain rents, to fish in the locus in quo, were 
 held to be receivable evidence. Heath, J., in this case, observed, that he' 
 could not distinguish the licenses from old leases, which were always, 
 received in evidence in favor of those claiming under the lessors. Rent 
 rolls, where payments have been made, are good evidence to prove fee-farm\ 
 rents,(3) or for other purposes. (4) Old court rolls have been admitted to. 
 prove a prescriptive right to wreck in the lord of a manor. (5) 
 
 It has been questioned, however, whether ancient leases are proiper- evi- 
 
 (1) Clartson v. Woodhouse, 5 T. R. 413, n. ; S. C, 3 Doug. 189. See also Barnes v.. 
 Mawson, 1 M. & S. 118, supra; Leathes v. Newit, 4 Price, 355 ; 8 Price, 563; Fisher v. 
 Graves, 3 Bag. & Y. 1180. To show the practical location of a boundary line and acqui- 
 escence in it, between the town of Rochester and the Hardenburgh patent, a line some 
 fifteen miles long, ancient deeds and agreements between parties interested in the line 
 and statements in the town records of Rochester, are competent evidence, if made aTvte 
 litem motam. Under the same limitations, a survey of the line and an agreement to abide 
 by it, adhered to for many years, though not legally binding upon the parties, are com- 
 petent evidence to establish the line thus agreed upon. Hunt v. Johnson, 19 New York' 
 Rep. 379. 
 
 The authority of an ancient deed is not established by producing it from the proper 
 custody and showing it to have existed for even sixty years, unless it be also shown that 
 possession has been taken or some unequivocal act done under it, or that its validity lias 
 been admitted by parties having an adverse interest. Wilson v. Betts, 4 Denio, 201. Thirty, 
 years uninterrupted possession under a deed will entitle it to be read in evidence without' 
 proving its execution. Clark v. Owens, 18 N. Y. Rep. 434. See note 430, vol. 3, p. 480. 
 
 (3) Rogers v. Allen, 1 Camp. 309. 
 
 (3) Newburgli v. Ncwburgh, 13 Vin. Ab. T, b. 43. 
 
 (4) Woodnorth v, Cobham (Lord) Bund. 180 ; 1 Bag. & Y. 803. In 13 Vin. Ab. A, b. 66, 
 it is said, a rental is but weak evidence, unless payment is also proved, and not sufficient 
 per se; and by Comyns, B., 13 Vin. Ab. 90. pi. 14, rentals, without money received and. 
 paid upon them, are nothing. In Lancum v. Lovell (6 C. & P.. 441),. an ancient counter- 
 part of feoffment produced from corporation muniments was rejected, because no rent had 
 been received in respect of the property. 
 
 (5) Biddulph V. Ather, 2 Wils. S3. 
 
230 Documentary Evidence of Ancient Possession. [ch. viii. 
 
 dence against strangers, of the boundary of the property conveyed. In 
 Olarkson v. Woodhouse,(l) Lord Mansfield, C J., said that the case before 
 him differed from the case of Lord Pomfret v. Smith, f 2) where Lord Pom- 
 fre£ offered a lease by himself or his predecessor, describing the premises in 
 dispute as lying within the limits of Lord Pomfret's estate, the question 
 being on the boundaries. But On reference to the report of that case, it 
 would seem that no part of the lease, upon the admissibility of which the 
 principal question arose, applied to the place in dispute, but only the words 
 of an exception contained in it, and therefore it was contended that the 
 lease, not containing a demise of the lands in question, was not evidence of 
 an act of ownership, but only showed that the lands were excepted by a 
 description injurious to the rights of a stranger, against whom that descrip- 
 tion was attempted to be used. 
 
 An old map of lands annexed to a deed seems to stand on the same foot- 
 ing as a description contained in the deed itself, and to be admissible in 
 evidence, where it is part of the act by which property is to be conveyed. (3) 
 
 But where a map or survey is not connected with any act of owner- 
 *283 ship, it appears to be inadmissible evidence to prove the parcels *of 
 
 an estate ; at least so far as respects the principle of evidence under 
 consideration. (4) 
 
 Conditions of admissibility. Evidence of the description above men- 
 tioned can only be received subject to several qualifications. 
 
 In the first place, some act done with reference to the documents is 
 required to be shown, if the nature of the case admits of it. Where, how- 
 ever, this cannot be done, from the antiquity of the document, it will be 
 admissible without such proof. Thus, in the case of Clarkson v. Wood- 
 house(5), the trial of which took place A. D. 1'782, several leases were 
 produced in evidence; the oldest of which was dated in 1680; and the 
 latest of those admitted in evidence was dated in 1702 or 1703. A lease 
 dated in ,1730 was rejected. No evidence of enjoyment under these leases 
 was given ; and as to the two older leases, the court ruled that their 
 antiquity rendered it unnecessary to prove acts done, becatise it was impos- 
 sible to give evidence of enjoyment under such old leases. In Rogers v. 
 Allen,(6) licenses were produced, which bore date from the year 1661 
 downwards to the end of the seventeenth century, and the cause was tried 
 A. D. 1808: Heath, J., ruled that it was not necessary to prove payment 
 under the licenses, because, as they were of such an ancient date, it could 
 not reasonably be supposed that evidence of such payments was still pre- 
 served. So in the case of The Duke of Bedford v. Lopes, (7) which was 
 an action brought to try the title to the bed of a river, after proof of a 
 grant by Henry VIII, two counterparts of leases were produced from the 
 duke's muniment room, comprehending the soil in question. No payment 
 by a tenant was proved, nor any modern act of ownership ; but the docu- 
 ments were ruled by Lord Denman, C. J., to be admissible. And in the 
 recent case of Doe dem. The Earl of Egremont v. Pulman,(8) in order to 
 
 (1) 6 T. R. 418, n. avpra. Parochial descriptions in leases are evidence upon questions 
 of public right, where reputation is admissible. Plaxton v. Dare, 10 B. & C 17 
 (3) 6 Bro. B. C. 440. 
 
 (3) Gilb. E\r. (3d edit.) 78, citing Yeates v. Connop, Hil. Ass. 1702. See also 1 Stra. 95, n. ; 
 4 N. & M. 303 ; 1 Lord Raym. 734 ; Doe d. Hughes v. Lakin, 7 C. & P. 481 ; Waljeman v. 
 West, 7 C. & P. 479 ; Jackson v. Marsh, 6 Cow. 281 ; Hathaway v. Power, 6 Hill, 453. 
 
 (4) Anon., 1 Stra. 95 ; Bridgman v. Jennings, 1 Lord Raym. 734 ; B. N. P. 283 ; by Lord 
 Kenyon, C. J., in Pollard v. Scott, Peake, 18. See Wakeman v. West, 7 C. & P. 479 ; 
 Doe V. Seaton, 4 N. & M. 81 ; Donnison v. Blsley, 3 Bag. & Y. 1396, n. : 12 Vin. Ab. 90 
 pi. 12. 
 
 !5) 3 Doug. 189 ; S. C, 5 T. R. 413, n. 
 6) 1 Camp. 311. 
 7) Tried at Exeter, March, 1838, cit. 3 Q. B. 833. 
 8) 3 Q. B. 622. 
 
SEC. v.] . Documentary Emdence of Ancient Possession, 231 
 
 prove that the land in question was part of the estate of the earl's ancestor, 
 a counterpart of a lease,- purporting to demise that land, was produced 
 from the ancestor's niuniment room : it was dated in the ancestor's lifetime, 
 and appeared to have been executed by the person named as lessee, but by 
 no one else ; no proof was given of actual possession under the lease, 
 and no privity appeared between the lessee and the defendant in ejectment; 
 but the court held that the document was admissible. 
 
 There appears to be a material distinction between evidence of posses- 
 sion by lessees under leases, and evidence of payment of rent. This 
 *284 *distinction is sometimes very important, where subsequent inquiries 
 are made respecting the parcels of the lease. Thus, where leases of 
 rectories include tithes claimed by the vicar, it seems to make an important 
 difference, whether the lessee has enjoyed the tithes claimed by the vicar, 
 or whether he has only paid rent generally on his lease. For it would be 
 the interest of the lessee, as well as of the lessor, to have the parcels stated 
 as amply as possible ; and where the rights are often so intermingled as 
 those of rector and vicar, the leases of the rectory may often, in general 
 terms, include vicarial tithes, without any imputation of fraud, especially 
 where common forms and precedents ai"e often followed, as in leases of 
 crown rectories. In tithe suits, however, ancient leases of rectories have 
 frequently been admitted as evidence of the parcels, merely upon proof of 
 rent being received, as appearing by the minister's accounts. (1) 
 
 Where unexceptionable evidence of possession, referable to the docu- 
 ment, may reasonably be expected to be found, it is required to be shown. 
 And proof of acting with respect to the documents which are produced as 
 evidence of acts of ownership, is always scrupulously required (even in 
 cases where traditionary evidence is receivable), if the document purport 
 to have been made post litem motam. Thus, upon a question concerning 
 the right of the corporation of Cambridge to receive toll, an award, whereby 
 the freemen of Northampton were discharged of toll at Cambridge, in con- 
 sideration of an annual payment by the corporation of Northampton to the 
 corporation of Cambridge, was considered to be inadmissible in evidence, 
 on the ground that payment of the composition had not been proved. (2) 
 
 Where it cannot be expected by reason of the antiquity of the docu' 
 ments, that any acts cotemporaneous with them should be afforded, it ia 
 still requisite, at least as far as respects the weight, if not the admissibility 
 of the evidence, that some acts in modern times with reference to similar 
 documents, should be proved, or that modern possession or user should be 
 corroborative of the ancient documents. In the case of Clarkson v. Wood- 
 house, (3) before mentioned, other evidence of title was given besides the 
 leases. And in Rogers v. Allen, above stated, (4) Heath, J., observed, that 
 to give any weight to the licenses produced in that case, it must be shown 
 that, in latter times, payments had been made under licenses of the same 
 kind, or that the lords of the manor had exercised other acts of ownership 
 over the fishery, which had been acquiesced in. 
 
 *285 * Cicstody of documents. Another qualification, to which the admis- 
 sibility of this species of evidence is subject, relates to the custody 
 or depository of documents. This will be more properly considered in 
 treating of the proof of written instruments. (5) 
 
 (i) Collins V. Gresley, by Park, J., Derby Sum. Ass. 1833 ; by Lyndhurst, C. B., on 
 motion for a new trial. 
 
 (2) Brett v. Beales, 1 M. & M. 418. 
 
 (3) 5 T. R. 413, n. ; S. C, 3 Doug. 189 ; Supra, p. 283. 
 
 (4) 1 Camp. 309 ; Supra, p. 383. As to the point that entries in ancient corporation 
 books are not generally evidence against strangers, see Att. Gen. v. Warwick (Corpora- 
 tion), 4 Russ. 232 ; Lancum v. Lovell, 6 C. & P. 441' ; Marriage v. Lawrence, 3 B. & A. 
 143 ; Hill V. Manchester W. W., 5 B. & A. 875. 
 
 (5) Post, Vol. II, and see Index, tit. OuMody. 
 
232 Hearsay in case of Dying Declarations. [ch. viii. 
 
 I SECTION VI. 
 
 Mcceptions to the General Mule as to Hearsay, in the Case of Dying 
 
 Declarations. 
 
 The rule which excludes hearsay evidence has been relaxed, in certain 
 cases, where a statement has been made by a person, since deceased, under 
 the immediate apprehension of death. The admission of what isr called a 
 dying declaration is an exception "to the general rule of evidence, inasmuch 
 as it has not been made under the sanction of the judicial oath, and has 
 not been subject to the power of cross-examination. It has been considered 
 that such evidence is admissible on the ground that the circumstances, 
 under which the information is given, are such a guaranty of its truth, as 
 to make it safe for juries to act upon it. 
 
 "Dying declarations," said Eyre, C. J., (1) "are made in extremity, 
 when the party is at the point of death, and when every hope of this world 
 is gone, when every motive to falsehood is silenced, and the mind is 
 induced by the most powerful considerations to speak the truth : a situation 
 BO solemn, and so awful," he observed, " is considered \)j the law as creating 
 an obligation equal to that which is imposed by a positive oath adminis- 
 tered in a court of justice." 
 
 In prosecutions for murder it has been the common and ancient practice 
 to admit as evidence the dying declarations of the person with whose mur- 
 der the prisoner stands charged. 
 
 Limitations of admissibility. It is obvious that the principle, above 
 laid down, would apply, though with unequal force, whatever may be the 
 subject matter of the declarations, whether of a civil or criminal nature. 
 But according to the more recent authorities, it is established, that dying 
 declarations are receivable only upon some particular subjects of inquiry. 
 In a modern case, (2) in the Court of Exchequer, where it was held that 
 proof could not be admitted of the declarations of a subscribing witness to 
 a deed, tending to show that he had forged or fraudulently altered the 
 deed, the authorities for admitting dying declarations, as to a similar fact, 
 were much considered. These authorities are two only in number, 
 *286 and although they had been *spoken of by judges occasionally with 
 approbation, they do not appear to be supported by the deliberate 
 judgment of any court. In one of these cases the declarations of a sub- 
 scribing witness to a bond, who, in his dying moments begged pardon of 
 Heaven for having been concerned in forging the bond, were admitted by 
 Heath, J., (3) as evidence of the forgery, on the authority of Wright dem. 
 Clymer v. Littler,(4) (the other of the two cases above referred to), where 
 similar evidence ot a^ying confession by a subscribing witness to a will 
 had been received by W illes, C. H., and afterwards approved of by the Court 
 of King's Bench. Th^se two cases must be looked upon as at least much 
 shaken, if not virtually overruled, by the case of Stobart v. Dryden above 
 mentioned ; and it may be doubted whether dying declarations would be 
 receivable in , any civil case : except, perhaps, where the inquiry involved 
 the cause of death of the declarant. (5) 
 
 In an action of ejectment, (6) it was determined that the dying deolara-^ 
 
 (1) In Woodcock's Case, 1 Leach, 503. See also Drummond's Case, Id. 338. 
 (3) Stobart v. Dryden, 1 M. & W. 615. 
 
 (3) Cited by Lord EUenborough, C. J., in Aveson v. Kinnaird (Lord), 6 East, 195 ; and 
 in Durham (Bp. of) v. Beaumont, 1 Camp. 311. See also by Bayley, J., in Doe d. Sutton 
 v. Ridgway, 4 B. & A. 55. 
 
 (4) 3 Burr. 1344 ; S. C, 1 W. Bl. 846." See 4 B. & A. 54. 
 
 (5) M. g. in an action of a policy of insurance, where the defense was that the deceased 
 had laid violent hands upon himself. 
 
 (6) Doe d. Sutton v. iRidgvvay, 4 B. & A. 53. 
 
 Note 99. — The American cases have undergone thQ same fluctuations as the English, 
 
SBC. vi.J Of the Admissibility of Dying Declarations. 233 
 
 tions of a person as to relationship between the lessor of the plaintiff 
 *287 and *the person last seized of the premises in question (the deceased 
 not being a relation of the parties), could not be received. In settle- 
 ment cases, dying declarations have for a long time been adjudged to be 
 inadmissible. (1) 
 
 The admissibility of dying declarations has been limited even in criminal 
 cases ; and a rule has been laid down, that such declarations are generally 
 admissible only where the death of the declarant is the subject of the 
 inquiry, and where the circumstances of the death are the subject of his 
 dying declaration. (2) 
 
 Where a prosecution was for administering drugs to a woman pregnant, 
 but not quick with child, with intent to procure abortion, her dying decla- 
 rations were held inadmissible, upon the ground that the death of the party 
 was not the subject of inquiry, though the declaration might relate to the 
 cause of the death. (3) So in trials for robbery, the dying declarations of 
 the party ribbed have been rejected. (4) And in a prosecution for perjury, it 
 has been held that the dying declarations of the prosecutor (who had been 
 shot by the defendant), could not be used in showing cause against a motion 
 for a new trial ; nor could they have been received in evidence at the trial. 
 (5) In one case in Ireland, upon an indictment for murder, the dying 
 
 with regard to the particular question which dying declarations may be brought forward 
 to elucidate. So long as the principle of adnussion was thought to rest merely upon the 
 substitution of the fear of death, of spiritual punishment, and the absence of motive to 
 falsehood, for the obligation of an oath, no reason could be given why the testimony 
 should be tied up to the homicide on trial. It came in, as secondary evidence generally 
 does, upcn the broad ground that the primary is lost by an accident which should never 
 deprive the party of what is left. Accordingly, it was put with a quere, whether "such 
 declarations mav not be received to support a deed (Jackson ex dem. Youngs v. Vreden- 
 burgh, I John.tlep. 159) ; and they were actually received from the daughter, to support 
 an action for her seduction, at the suit of her father. M'Farland v. Shaw, 2 N. Car. Law 
 Kepos. 103, 105. 
 
 So long as the testimony was left to stand on the broad abstract notion that it was 
 secondary, the analogy was too imposing to be resisted in any case. It never was, how- 
 ever, complete. The strongest resemblance was to depositions and ihe mva voce testimony 
 of deceased vidtnesses on a former trial. But here the secondary evidence was carefully 
 restricted, in such a way as to secure to the party, against whom it was presented, the 
 important right of cross-examination, and the prevention of all abuses in the mode of 
 obtaining it. On the whole, it is plain that the rule as to dying declarations, is one of 
 policy and necessity, arising in the particular case. It shall not be allowed to the ofiender 
 to commit a homicide, and by the same act, put to silence the only witness at whose 
 mouth he may be condemned. 
 
 Upon the latter view, it has now long been settled, by a series of cases, that decla- 
 rations in extremis are restricted to the trial for the identical homicide which occasioned 
 the death of the person who makes the declarations. They are not admissible in a civil 
 action (Wilson v. Boerem, 15 John. K. 286 ; S. C, Anth. N. P. 174, ; Jackson ex dem. Coe 
 V. Kniffen, 3 John. K. 35, per Livingston, J. ; Gray v. Goodrich, 7 Id. 95, 96, per Curiam ; 
 and see Anth. N. P. 176, n. a) ; and, as expressed in another case, they can be received 
 " only where the death of the deceased is the subject of the charge, and the circumstances 
 of the death the subject of the declarations." Kex v. Mead, 3 Barn. & Cress. 605 ; S. C. 
 cited in the text. They are not receivable on trial of an indictment for adniinistering to 
 a woman in order to procure an abortion, though this might have been the cause of her 
 death, for her death was not the subject of the charge (Rex v. Hutchinson, note to the 
 last case ; S. C. cited in the text) ; nor on trial for a robbery, thpugh the party robbed died 
 of the violence exerted against him in its commission. Eex v. Lloyd. 4 Carr. & PajTie, 
 238 and note a to that case, citing two cases also referred to in the text. 
 
 (On the same ground, dying declarations are not evidence of the prisoner's insanity 
 (The State v. Spencer, 1 New Jersey, 196) ; Lake v. People, 1 Park, Cr. 495 ; nor is any 
 statement, made by the deceased in regard, to an independent fact, disconnected from the 
 circumstances or cause of the death, admissible. Johnson v. The State, 17 Ala. 618.) 
 
 (1) R. v. Ferry Frystone, 3 East, 54 ; R. v. Chadderton, Id. 27 ; R. v. Abergwilly, Id. 63. 
 
 (2) By Abbott, C. J., in R. v. Mead, 3 B. & C. 607. 
 
 (3) R. v. Hutchinson, 2 B. & C. 608, n. a, by Bayley, J. 
 
 (4) By Bayiey, J., on the Northern Spring Circuit, 1833 ; by Best, C. J., on the Midland 
 Spring Circuit, 1832 ; and by BoUand, B., in E. v. Lloyd, 4 C. & P. 233. 
 
 (5) R. v. Mead, 3 B. & C. 605. 
 
 Vol. I. 30 
 
234 Of the. Admissibility of Dying Declarations. [ch. viii. 
 
 declarations of another party, confessing that he had committed the^ crime, 
 were rejected. (1) 
 
 The dying declarations of the deceased persons in favor of a prisoner 
 charged with his death, seem to be as admissible for him, as they would be 
 against him if unfavorable. (2) 
 
 Belief of future state, implied. Upon the ground that dying declarations 
 are said to be receivable, as having (from the circumstances under which 
 they are delivered) something of the sanction of an oath taken in a court of 
 justice, the dying declarations of persons who, if living, would have 
 *288 been incompetent to *take the judicial oath, from, defect of religious 
 principle, are not to be admitted. Thus, if it appear that the 
 deceased had no idea of a future state, his declarations will be inadmissible ; 
 for a principle ground of the admissibility of such evidence is the supposed 
 deep impression of having shortly to render up an account to his Maker. (3) 
 Accordingly, the dying declaration of a child, aged four years, was rejected, 
 because it was considered that at that age the child could not possibly have 
 any idea of a future state. (4) But when the statement is made by a child 
 of intelligent mind, impressed with the nature of an oath, and expecting to 
 die, the statement may be received. (5) 
 
 Upon the same principle, the dying declarations of an attainted convict 
 were formerly rejected, as he could not, if living, have been examined upon 
 oath; (6) but since Lord Denman's Act, (7) this would no longer be a ground 
 of objection to their admissibility. 
 
 The dying declarations of a woman, who took part in an act which caused 
 her own death, were received in evidence upon an indictment for murder 
 charging the prisoner both as principal and accessory before the fact; (8) 
 and it was decided, that the fact of her being particeps crim,inis, in the act 
 which caused her own death, was not a valid objection to their admis- 
 sibility, for the declarations of a particeps criminis are admissible against a 
 person indicted for a crime in which the declarant participated. 
 
 The case of the King agt. Baker, (9), appears not to be quite conformable 
 with the rule abovS mentioned, that dying declarations are admissible only 
 where the death of the declarant is the subject of inquiry. A prisoner was 
 indictfed for poisoning J. K. The poison was administered in a cake, imme- 
 diately after eating which the deceased was taken ill. His maid servant, 
 who was present and had made the cake, ate some of it herself, and died of 
 the poison. Her dying declarations (made after she knew of her 
 *289 master's death) as to the manner in which she had made the *cake, 
 
 (1) R. V. Gray, Ir. Cir. Rep. 76, by Torrens, J. 
 
 (2) R. v. Seaife, 1 Mo. & R. 551. 
 
 (3) By Park, J., in R. v. Pike, 3 C. & P. 698. 
 
 (4) R. V. Pike, 3 C. & P. 598, by Park, J., and Parke, B. 
 
 (5) R. V. Perkias, 2 Mo. C. C. 135 ; S. C, 9 C. & P. 395, 397 ; the child was ten years old. 
 
 (A child who has not arrived at years of discretion, is not supposed capable of under- 
 standing the nature of an oath, or of entertaining such views of a future accountability 
 as, in the prospect of present dissolution, are deemed equivalent to an oath ; and, there- 
 fore, he is not received as a competent witness on the stand, and his dying declarations 
 are not allowed in evidence. Pennsylvania v. Stoops, Addis. 381. On the other hand, 
 the wife being a competent witness against her husband on an indictment against him 
 for violence to her person, her dying declarations may be received against him in like 
 cases ; as, where the husband is indicted and tried for the murder of his wife. The Peo- 
 ple v. Green, 1 Denio, 014. If her dying declarations are irrelevant, as where she admitted 
 herself to have been guilty of adultery, they are excluded for that reason. State v. Rash, 
 12 Ired. 382.) 
 
 (6) Drummond's Case, 1 Leach, 887. 
 
 (7) 6 & 7 Vict. c. 85. 
 
 '. <8) Tinckler's Case, 1 East, 854. 
 
 ^9) 2 Mo. & R. 53. This point was reserved for the consideration of the judges, but the 
 prisoner was acquitted. 
 
SEC. VI.] Inquiry as to State of Deceased. 235 
 
 and that the prisoner was present at the time she made it, were tendered 
 in evidence on the part of the prosecution, and objected to on behalf of 
 the prisoner, upon the ground that the inquiry related not to the death 
 of the servant, but to that of J. K. But Coltman, J., after consultation with 
 Parke, B., expressed himself of opinion that, as it was all one transaction, 
 the declarations were admissible. Upon this decision it may be observed, 
 that although, with respect to the master and the maid servant who were 
 both poisoned, the circumstances stated in the dying declaration formed one 
 transaction, yet with respect to the prisoner they consisted of two separate 
 criminal acts, which might have been the subject matter of two prosecutions 
 for murder : and it is with respect to the prisoner more especially, and to the 
 bearing which the evidence may have against him, that the question ot 
 the admissibility of the declarations is to be considered. On a trial of the 
 prisoner for the poisoning of the maid servant, her dying declarations would 
 unquestionably be good evidence against him ; but it seems doubtful whether 
 they are admissible against him on a charge of poisoning the master, which, 
 though involved in the same transaction with the other poisoning, must be 
 treated, in the course of judicial inquiry, as a matter entirely distinct and 
 unconnected. 
 
 Inquiry as to the state of the deceased. Before dying declarations can be 
 received in evidence, inquiry must be made, whether the deceased appre- 
 hended that he was in such a state of mortality as would inevitably oblige 
 him soon to answer before his Maker for the truth or falsehood of his asser- 
 tions, or as laid down by Lord Denman, C. J., in a late case,(l) there 
 *290 must be actual danger of death, and a *full apprehension at the time 
 of such danger, in order to render such declarations admissible after 
 the death of the party. 
 
 (1) Sussex Peerage Case, 11 CI. & Fin. 108, 113. 
 
 (In order to render the dying declarations of a deceased person admissible, it must be 
 first shown that they were made under the present apprehension of impending death, or, 
 as it is sometimes expressed, under the consciousness of almost. immediate dissolution. 
 Smith V. The State, 9 Humph. 9 ; Logan v. The State, Id. 34 ; The State v. Thawley, 4 
 Harring. 568. Where, it is shown that the declaration of the deceased was so made, it 
 will not be rendered inadmissible by showing a subsequent revival of strength in the 
 dying person. The State v. Tilghman, 11 Ired. 513. The deceased's state of mind, in 
 regard to his consciousness of impending death, is to be ascertained from the circum- 
 stances, as well as from what he said at the time, or what was said to him. McLt'an v. 
 The State, 16 Ala. 672 ; Campbell v. The State, 11 Geo. 353. Though a man live fifty-two 
 days after receiving a mortal wound, his declarations made three days before his death are 
 admissible, it being shown that he had been informed by the physician, and had himself 
 expressed the belief, that his wound was mortal. Oliver v. The State, 17 Ala. 587. If it 
 appear clear that the deceased had given up all hopes of recovery, the circumstance that 
 the physician gave her hopes will not exclude her dying declaration. The People v. Grun- 
 zig. 1 Parker C. E. 399 ; Id. 11, 303 ; The State v. Peace, 1 Jones's Law (N. C), 351. 
 
 Note 100. — For the general position that declarations in articulo mortis are admissible, 
 see Pennsylvania v. Stoops, Addis. 381. 
 
 The deceased was robbed, and stabbed in several places, one of which was his bowels. 
 He became so weak that he was brought into the city on a litter, where a surgeon dressed 
 his wounds, and he died in a few days after. The surgeon deposed that one of the wounds 
 received by the deceased was such as generally proved mortal. The expressed opin- 
 *290 ion of thedeceased *a8 to his expectation of death, was not in evidence ; nor the 
 opinion of his surgeon, as gii^en to him ; yet, from the palpable danger of the case, 
 the court inferred his apprehensions of death, and received his dying declarations giving an 
 account of the robbery. State v. Monaquas, Charlt. Kep. 16. But in anotb er case, although 
 the wound was quite dangerous, and plainly so, a large portion of the entrails being out, 
 which were badly cut and wounded, the surgeon believing from the first that the deceased 
 could not live, the court hesitated to receive the declarations of the deceased until a wit- 
 ness had deposed to his expression of an opinion that he should not live. King v. The 
 Commonwealth, 3 Virg. Cas. 78, 80, 81. And in another case, where the deceased was 
 wounded and died the next day, nothing appearing as to his opinion of his own danger 
 before the declarations were made, they were held inadmissible. The court said : " Decla- 
 rations of a. dying man have sometimes been received; but then they must be the 
 
236 Joying Declarations. [ch. viii. 
 
 declarations of a dying man — of one so near his end that no hope of life remains ; for 
 then the solemnity of the occasion is a good security for his speaking the truth, aS' much 
 BO as if he were under the obligation of an oath. But if, at the time of making the decla- 
 ration, he has reasonable prospects and hope of life, such declarations ought not to be 
 received ; for there is room to apprehend he may be actuated, by motive of revenge and 
 an irritated mind, to declare what possibly may not be true." The State v. Moody, 3 
 Hayw. 31. In another case, the deposition of the deceased was taken immediately after 
 he had received a dangerous wound ; but he did not plainly mention, even to his most 
 intimate friends, that he thought there was no chance for his recovery, till three days 
 after. The court deeming it doubtful, on the testimony, whether, within the three 
 days, he felt morally certain that he must die, refused to hear any of his declarations, 
 except those made after that time. The People v. Anderson, N. T. O. & T., Edwards, C. 
 Judge, presiding, A. D. 1824; 3 Wheel. Cr. Cas. 390, 398. It is put by Evans, that the 
 despair of the deceased may be inferred from his declarations cotemporary or previous to 
 the statement proposed as evidence to the j ury, or from his situation being such as neces- 
 sarily to induce that impression.- 3 Ev. Poth. 293, 294. And see Trant's Case, Macnally's 
 Ev. 385. 
 
 Before the judge decides, he hears all the deceased said respecting the danger in which 
 he considered himself ; and he should be satisfied that the declaration was made under an 
 impression of almost immediate dissolution. It is not enough that the deceased thinks he 
 shall ultimately never recover. Thus, the deceased being operated upon by a quack sur- 
 geon with a rectum bougie (May 10th), by which he received an injury, took to his bed, 
 and died in about a week (May 17th). On the evening of the 10th, he had declared to 
 L., a regular surgeon, that he had had such an injury in the bowels that he should 
 never recover. The surgeon endeavored to encourage him, really thinking him not 
 in danger of dying; but he persisted in saying he felt satisfied he should never 
 recover. Hullock, B., rejected the proposed declaration as evidence against the quack, 
 who was indicted on his trial for manslaughter. Rex v. Van Butchell, 3 Carr. & Payne, 
 629. And see Rex v. Callaghan, Macnally's Ev. 385. On the trial of an indictment for 
 the murder of Jane White, by administering corrosive sublimate, her surgeon testified 
 thus : " I had told the deceased she would not recover, and she was perfectly aware of her 
 danger. I told her I understood she had taken something. She said she had, and that 
 damned man had poisoned her. I asked her what man ,- and she said Crockett. She said 
 she hoped I would do what I could for her, for the sake of her family. I told her there 
 was no chance of her recovery." Bosanquet, J.: " This shows a degree of hope in her 
 mind. To render a declaration of this kind admissible, she must have had the impres- 
 sion on her mind of an almost immediate dissolution." Eex v. Crockett, 4 Carr. & Payne, 
 544. The surgeon was clear that the deceased was mortally woimded, on first seeing him ; 
 and the deceased told the surgeon he thought so, and expressed a consciousness that he 
 should not recover to several witnesses, and was constantly at prayer in the intervals of 
 being easier from pain. His declarations, after this proof given, were received against 
 the prisoner, though, to the witness who heard them, the deceased made use of expres- 
 sions indicating an expectation of surviving ; as that if his brother (the prisoner) would 
 go ofl", where he would never more be heard of, he, the deceased, would forgive him ; and 
 the witness thought the deceased then expected to live. The declarations received 
 against the prisoner were made a few hours after the surgeon had dressed the wound and 
 given the deceased his opinion that he would die, and after the deceased had expressed 
 the same opinion to another witness. Gibson v. Commonwealth, 2 Virg. Cas. Ill, 110, 
 
 117. Immediately and on the evening after being wounded, which was eleven 
 *391 days before his death, the deceased declared to his nurse that *he was robbed and 
 
 killed, and could not get the better of it, and persevered in these and the like decla- 
 rations to her till his death, though a surgeon was called to him the evening after the 
 wound, who gave him hopes of .life till just before his death : but he told him there was 
 danger. He did not express a consciousness that he must die, to the surgeon. Held, that 
 his declarations as to the facts attending the homicide, made eleven days before his death, 
 after his declarations to the nurse, and his declarations as to the homicide made subse- 
 quently, were admissible in evidence, though they were made before the surgeon told him 
 his Slate was hopeless. Rex v. Mosley, Ry. & Mood. Cr. Cas. 97. On the trial of an 
 indictment against Poll, a domestic of S. Skinner, for poisoning him, it was in evidence 
 that he died on Thursday; and his declarations from the Sunday previous up to his death, 
 were offered in evidence for the state. During that interval, he was evidently sick from 
 the effect of poison ; and stated his belief that he should die, though he was occasionally 
 better. He said he was poisoned ; and, as he believed, by Poll, who gave him something 
 in his food and drink. His declarations were held admissible, being made at times when 
 he despaired of a recovery. State v. Poll & Lavinia, 1 Hawks, 443, 518, 519. But the 
 court do not mean to be understood as sanctioning the declaration of heli^ as to the per- 
 son poisoning, as proper evidence. 
 
 It will be perceived that most of the doctrine stated in the text is thus re-asserted in a 
 definite form by these cases. We see that competency is a question of fact for the court, 
 as in other cases. They arc to find upon it as the jury do upon the main cose, taking into_ 
 
SEC. VI.] Inquiry as to State of Deceased. 237 
 
 In this inquiry, as to the admissibility of the proposed evidence, it is not 
 necessary that the deceased should have explained by any expressions, 
 whether he thought himself likely to live or die. In Woodcock's Case,(l) 
 it was deemed sufficient, for giving credit to the declarations, to show that 
 the deceased had been mortally wounded, and was in a condition which 
 rendered almost immediate death inevitable ; and that she was thought by 
 every person about her to be dying. It was considered a proper inference 
 from these circumstances, that she must have felt the hand of death, and 
 must have considered herself as a dying woman. The same doctrine was 
 
 view all the circumstances calculated to prove and disprove that despair of life which 
 shall be equivalent to a sworn obligation. In determining this, it will be seen that much 
 confidence has usually been, as indeed from the nature of the question it must be, placed 
 in the declarations and conduct of the deceased. The surgeon and third persons may look 
 upon the case as desperate, while the mind of the deceased is still buoyant with hope. 
 Levity and thoughtless profanity, as in Rex v. Crockett, is contrasted with seriousness 
 and prayer, as in Gibson v. The Commonwealth. The apprehension must be of almost 
 immediate death, as held in Rex v. Van Butchell, not a mere despair of ultimate recovery, 
 after lingering for a long time. One eminent writer calls it the apprehension of " impend- 
 ing death." 2 Ev. Poth. 393. 
 
 " Have I not hideous death within my view. 
 Retaining but a quantity of life ; 
 Which bleeds away, even as a form of wax 
 Eesolveth from his figure 'gainst the fire ? 
 What in the world should make me now deceive, 
 Since I must lose the use of all deceit 1 
 Why should I then be false ; since it is true 
 That I must die here, and live hence by truth ?" 
 
 [King John, Act V, Scene IV. 
 
 The above lines from Shakspeare have been more than once quoted (see 3 M'Cord, 331), 
 as presenting the true standard of a witness allowed to testify through his dying declara- 
 tions. The supposed speaker (Count Melun) is represented as in truth mortally wounded, 
 and shortly after dying. In the mean time he is not only certain of ultimate death — this 
 is not enough ; every valetudinarian, every person in health is conscious of that ; — but he 
 is strongly persuaded that death is rapidly approaching. It is so near that all motives to 
 falsehood are superseded by the strongest inducements to strict veracity ; and hence he 
 urges an implicit belief of the disclosures he had made, although they pointed to a 
 most diabolical conspiracy. See, also. Swift's Ev. 134. 
 
 Upon this question of fact, no rule can be adopted which will reach every variety of 
 detail. The court try the competency of the deceased as the jury do his credibility ; and 
 the decision in either case, on a conflict of testimony, must be final. 
 
 In one case, the deceased, though she had not expressly intimated a word of apprehen- 
 sion to her aunt, who attended her, or any other person, yet detailed shocking circum- 
 stances concerning a rape which had been committed upon her ; and soon after died of the 
 injury. It appearing that she had, previous to this detail, confessed, been absolved, and 
 received extreme unction from a priest, this was considered sufficient evidence that she 
 had given herself up to die soon ; and the declarations were received. Rex v. Minton, 
 Macnally's Ev. 386. 
 
 These declarations, made antecedent to the stroke which caused the death, are, of 
 course, not admissible. Maryland v. Ridgley, 3 Harr. & M'Hen. 120. 
 
 Various other questions of competency may doubtless arise, after the court shall have 
 determined favorably upon the witness's condition. If the statement come from the 
 deceased as mere matter of opinion or belief (State v. Poll, gupra ; 3 Ev. Poth. 393 ; 4 
 Stark. Ev. 461 ; Post, of the text, and the note), it would be inadmissible. So if the 
 deceased be disqualified by conviction of an infamous crime, his declarations cannot be 
 heard. Indeed, he is to be treated, not only in respect to competency, but (as we shall 
 see) credibility, the same as a witness proposed to be sworn upon the stand. But it has 
 been held not an unqualified ground for excluding the declarations, that they are answers 
 to leading questions. Where the deceased lay, the greater part of the interval between 
 the wound and his death, unable to spfeak at all, and when able, only to utter a word or 
 two, he was asked, Did P. V. (the prisoner) strike you first? to which he answered, yes, 
 sir ; Did P. V. stab you 1 to which he answered, yes, sir : these declarations were' held 
 admissible. Vass v. The Commonwealth, 3 Leigh, 786. He was immediately asked 
 a fourth question, which he was unable to answer ; but it not appearing that the other 
 answers were intended to be qualified by him, in which purpose he was interrupted, they 
 were received, though it would have been otherwise had this appeared. Id. 
 
 (1) 1 Leach, 503. 
 
238 Inquiry as to State of Deceased. [ch. viii. 
 
 held in John's Case,(l) the court being of opinion, that if it: might reason- 
 ably be inferred from the wound or state of illness of a dying person, that 
 he was sensible of his danger, his declaration would be good evidence. In 
 The King agt. Bonner,(2) Patteson, J., said, that it is not necessary to prove 
 expressions of apprehension of immediate danger. 
 
 In the case of The King agt. Spilsbury,(3) it was proposed to give in 
 evidence the dying declaration of a deceased person, and it was proved that, 
 about the time of making the declaration, the deceased was asked, if he 
 thought he should recover, and how he was; to which he answered, that 
 he thought he should not recover, as he was so very ill. He had been pre- 
 viously insensible, but remained sensible for an hour, and died the next day, 
 The evidence was rejected by Coleridge, J., on the ground that he did not 
 feel fully convinced, that the deceased had no hope of recovering. (4) 
 
 *293 ^Interval before death. With respect to the interval of time which 
 may have elapsed between the uttering of dying declarations and the 
 moment of death, there appears to be no rule founded on this circumstance 
 alone : nor is it consistent with the principle upon which dying declarations 
 are received in evidence (which, as we have seen, depends upon the state of 
 the declarant's mind), that such declarations should be excluded, if not made 
 within any precise limits of time. It ought, however, to appear that the 
 deceased believed his dissolution to be impending. And unquestionably 
 the length of time may be a material consideration, in forming an inference 
 as to the state of mind of the deceased, with respect to his expectation of 
 death at the time of making a declaration, especially if the deceased has 
 not expressed his sense of his own situation. 
 
 In Woodcock's Case, (5) Eyre, C. B., lays stress on the circumstance that 
 the deceased was in a situation which rendered almost immediate death 
 inevitable. And in The King agt. Van Butchell,(6) Hullock, B., rejected 
 a declaration made on the 10th of May, the deceased having died on the 
 I7th, and having stated, before making the declaration in question, that he 
 felt satisfied that he should never recover. Hullock, B., is reported to have 
 said, that " the principle on which declarations in articulo mortis are admit- 
 ted in evidence, is that they are under an impression of almost immediate 
 dissolution. A man may receive an injury, from which he may think he 
 shall ultimately never recover, but still that would not be sufficient to dis- 
 pense with an oath."('7) In The King agt. Bonner,(8) dying declarations 
 of a person were received, which were made on a particular day, when the 
 deceased thought he might have died, and it was said, that the circumstance 
 of his having lived three days longer did not alter the state of things on 
 the day when the statement was made. 
 
 Expressions of deceased. Upon an inquiry as to the admissibility of a 
 dying declaration, it is necessary to hear all that the deceased has said 
 relative to his situation, in order to ascertain whether he had that impres- 
 sion upon his mind, which will make his declarations admissible in evi- 
 dence. (9) In The King agt. Crockett,(10) notwithstanding a surgeon told 
 
 (1) 1 Bast, 357. See, also, Dingler's Case, 1 Leach, 604, n. 
 
 h) 6 C. & P. 386. See, also, R. v. Van Butchell, Id. 631 ; R. v. Mosley, 1 Mo. C, C. 97. 
 
 (3) 7 C. & P. 187. See also R. v. Megson (9 C. & P., 418), where the statement was 
 rejected, the aljandonment of all hope of recovery not being proved satisfactorily to the 
 judge. 
 
 (4) See also R. v. Perkins, 9 C. & P. 39S ; S. C, 2 Mo. C. C. 135. 
 
 (5) 1 Leach, 503. 
 
 (6) 3 C. & P. 631. 
 
 (7) The expression, " almost immediate," is used by Bosanguet, J., in R. v. Crockett, 4 
 C. & P. 544. 
 
 (8) 6 C. & P. 386. 
 
 (9) By Hullock, B„ 3 C. & P. 681. 
 
 (10) 4 C. & P. 544. 
 
SEC. VI.] Inquiry as to State of Deceased. 239 
 
 the deceased that there was no chance of her recovery, yet, as she said that 
 she hoped the surgeon would do what he could for her for the sake of her 
 
 family, the judge rejected the declarations of the deceased, saying, 
 *294 that her expressions *showed a degree of hope in her mind. In The 
 
 King agt. Fagent,(X) it appeared that the deceased had expressed an 
 opinion that she should not recover, and after that, she made a declaration, 
 but subsequently, on the same day, she asked her nephew if he thought she 
 would "rise again." It was considered that the declaration was not 
 receivable, because the subsequent question showed that she entertained 
 hopes of recovery. In Errington's Case,(2) the deceased, before making a 
 declaration, had said he thought himself in great danger ; but Patteson, J., 
 considered this expression did not necessarily exclude the supposition, that 
 the deceased might nevertheless have entertained some hopes of recovery, 
 and the declaration was consequently rejected. (3) 
 
 JRepresentations to deceased. Representations made to the deceased are 
 often of importance, in inquiring as to the opinions he entertained of his 
 own danger. In the case of The King agt. vVelborn,(4) upon the trial of 
 the prisoner for the murder of a woinan, by inducing her to take poison, the 
 declaration of the deceased was made to an apothecary within an hour of 
 her death, in consequence of the apothecary telling her that he must know 
 what she had done, and that she would not live twenty-four hours, unless 
 proper relief was afforded. The majority of the judges were of opinion that 
 the declaration was inadmissible, because the deceased was given to under- 
 Btand, that if she told what was the matter with her, she might have relief 
 and recover. So in the case of The King agt. Christie, (5) where the 
 deceased asked his surgeon if the wound was necessarily mortal, and was 
 told in answer, that persons had recovered under like circumstances, but 
 that the case was one of extreme danger : a statement made immediately 
 after this conversation was rejected by Abbott, C. J., and Park, J., on the 
 ground that the language of the surgeon was calculated to keep up in 
 the mind of the deceased some expectation of recovery. 
 
 In the case of The King agt. Mosley,(6) the deceased received the injury, 
 of which he died, on the evening of the 30th of September, and died on 
 the evening of the 10th of October following. On the first evening, and 
 every day until his death, he complained to the nurse who attended him, 
 that he should never get better. But during his illness he never 
 *295 expressed *any opinion, either of hope or apprehension, to his sur- 
 geon. The surgeon informed him that his case was hopeless, for the 
 first time, on the morning of the 10th of October. The surgeon did not 
 himself consider the case quite hopeless till that day, and had always pre- 
 viously told the deceased that there was no danger, but there were hopes 
 of his being better. The judges were unanimously of opinion that the decla- 
 rations of the deceased, made by him after he was brought home the first 
 evening, after he had said that he should not get better, and also at different 
 times during his illness, and previous to the surgeon's communication to 
 him of his hopeless state, were properly received in evidence. It may be 
 observed, this case is distinguishable from the two preceding, on the ground 
 
 (1) 7 C. & P. 238. 
 
 (2) 3. Lew. C. C. 148 ; S. C, 3 RuSs. by Greavea, 756. 
 
 (■3) See E. v. Simpson, before Bayley, J., (1 Lew. C. Q. 78), where a declaration made 
 under nearly similar circumstances was admitted. This case was cited in Errington's 
 Case. For other instances in which declarations have been rejected upon the ground that 
 the expressions used by the deceased did not indicate an utter abandonment of hope, see 
 B. V. Howell, 1 Car*. & K. 689 ; R. v. Murphy, Ir. Cir. Rep. 38. 
 
 (4) 1 East, 358. 
 
 (5) See a brief report.of this point in 2 Russ. Cr. & M. by Greaves, 754. See also R. v. 
 Perkins, 9 C. & P. 395, 397 ; 2 Mo. C. C. 135. 
 
 (6) 1 Mo. C. C. 27. 
 
240 As to the Form of making the Declarations. [en. Tin. 
 
 that there was positive evidence that the conviction of the deceased, as to 
 his own impending death, had not been altered by the representations of 
 the surgeon. 
 
 In the case of The King agt. Hayward,(l) after a surgeon had examined 
 the wound of the deceased, the deceased inquired whether he was in 
 danger; to which the surgeon answered that he was, and that the only- 
 chance of his living was keeping himself quiet ; upon which it was con- 
 tended, that the declarations made by the deceased, were not made at a 
 time when every hope in this world was gone, and when the party was 
 aware that he must inevitably answer soon for the truth or falsehood of his 
 statements ; but that, upon the surgeon's statement, he must be taken to 
 have had some hope of recovery. On this, Tindal, C. J., observed, that 
 any hope of recovery, hower slight, existing in the mind of the deceased at 
 the time of making the declarations, would undoubtedly render the proof 
 of such declarations inadmissible. But upon the further examination of 
 the surgeon, it appeared that before the declarations were made on the 
 following evening, the deceased knew that he must die, and that the magis- 
 trate, previous to the receiving of his declarations, desired him, as a dying 
 man, to tell^ the truth ; and that the deceased replied, he would. TJpon 
 this further evidence, the declarations of the deceased were held to be 
 admissible, and were laid before the jury. (2) 
 
 Form, of declaration. With regard to the manner in which a dying 
 declaration may become the subject of legal evidence, it may be observed, 
 that an examination taken on oath by a magistrate, and signed by the 
 deceased and by the magistrate, has been received in evidence as of the 
 same effect, in point of admissibility, as declarations not made with the same 
 solemnity. (3) 
 
 It is no objection, in point of law, to a dying declaration, that it was 
 *296 *made in answer to questions. (4) It appears, from "Woodcock's 
 Case,(5) that the declaration is not inadmissible, though obtained by 
 pressing and by questions. The same appears from The King agt. 
 Reason. (6) But such solicitations must naturally weaken the effect of the 
 evidence. 
 
 Dying declarations have been admitted in evidence, although it appeared 
 that the deceased made a subsequent statement, which had been taken in 
 writing before a magistrate, but which written examination was not ready 
 to be produced at the trial. This point was much discussed on the trial of 
 Reason and Tranter,(6) under the following circumstances. The deceased 
 stated the particulars of the injury which occasioned his death, at three 
 several times in the course of the same day, with an interval of about an 
 
 (1) 6 C. & P. 160. 
 
 (2) See also Ashton & Thorneley's Case, 3 Lew. C. C. 147. 
 
 (3) R. V. Woodcock, 1 Leach, 502. 
 
 (4) B. V. Pagent, 7 C. & P. 238. 
 
 (5) R. V. Woodcock, 1 Leach, 503. 
 
 (6) 16 How. St. Tr. 31 ; S. C, 1 Stra. 499. 
 
 (In several of our states the organic law gives to any person accused of crime the right 
 to confront the accusers and witnesses, and impliedly confers upon him the right to cross- 
 examine such witnesses. Under this elementary principle of law, the question has been 
 raised whether dying declarations can be proved against the accused, who has had no 
 opportunity to examine the person in relation to them ? And it has been adjudged that 
 the admission of such evidence is not in conflict with the provision in question : the 
 witness proving the dying declarations is confronted with the accused, and the decla- 
 rations of the deceased, which are in many cases the only evidence of the crime, are 
 proved as facts, like the execution of a written instrument. State v. Tilghmnn, 11 Ired. 
 513. So, also, the provision of the U. S. Constitution, declaring that " in all criminal 
 prosecutions, the accused shall be confronted with the ^^-itnesses against him," is satisfied 
 if the witness swearing to the declarations of the deceased is confronted with the accused. 
 Campbell v. The State, 11 Geo. 853 ; Commonwealth v. Carey, 13 Cush. Mass. 346.) 
 
SEC. VI.] TTieir Admissibility, a Question of Law. 241 
 
 hour between, each ; the^first and last account had not been written ; the 
 second was reduced into writing in the presence of a magistrate hy the same 
 person to whom the former account had been given j this written statement 
 was retained by the magistrate, but as he had removed to a distant part of 
 the country, and it was not known to what place, the original was not 
 produced, and an examined copy was rejected. An argument then ensued 
 with respect to the admissibility of the first and third statements of the 
 deceased. Pratt, C. J., was of opinion, that evidence of the first and third 
 statements ought not to be received, considering all of them as statements 
 to the same effect, and forming .one entire narration, of which the written 
 examination was the best proof But the other judges were of a different 
 opinion ;(1) they held that the three accounts given by the deceased were 
 distinct facts, and that there was no reason to exclude the evidence as to 
 the first and third declarations, because the prosecutor was disabled from 
 giving an account of the second. The witness was therefore directed to 
 repeat his evidence, leaving the examination before the justices out of the 
 case ; and the first as well as the third statement was admitted. 
 
 When the declaration has been taken down iu writing and signed by 
 the deceased, it has been held, that neither a copy of the writing, nor parol 
 evidence of it, can be received. (2) 
 
 Declaration only as to facts. The statement made by the deceased must 
 be such as would be receivable, if he were alive and could be examined as 
 a witness ; any declaration, therefore, upon mere matters of opinion, as dis- 
 tinguished from facts, would not be receivable. (3) 
 
 It has been previously stated, (4) that the question, whether a dying 
 declaration is admissible ia evidence, is a question exclusively for the con- 
 sideration of the judge ;(5) upon the principle that the question, whether 
 any particular piece of evidence be admissible, is always to be determined 
 by the judge. It has been thought by some, that as the solution of this 
 
 (1) See 1 Stra. 500., The report in 16 How. St. Tr. differs in some respects upon this 
 point. 
 
 (3) R. V. Gay, 7 C. & P. 330 And see Trowter's Case, 13 Vin. Ab., 118 ; B. v. Reason, 
 ut swpra. The correctness of these decisions will be better examined after a considers^ 
 tion of the authorities in the chapter upon Secondwry Mridenee, to which they more 
 properly belong. 
 
 (Where the statement of the deceased is taken down in writing, it is of course more 
 reliable, more accurate, than the memory of most men ; but it is of no higher grade than 
 unwritten testimony. It may be received in evidence (11 Geo. 353) ; and where the state- 
 ment is not reduced to writing, the witness may state the circumstances, and detail the 
 exact language of the deceased ; or, if he cannot do that, he may state the substance of 
 what he said. Ward v. The State, 8 Blackf 101. If the witness reduced the dying 
 declarations to writing at the time, manifestly the writing should be produced and read. 
 The State v. Cameron, 3 Chand. (Wis.) 173. If not made at the time, it is in the same 
 case £3 any other memorandum made by witness to assist his memory. And when 
 reduced to writing and signed by the deceased, it is admitted in evidence on the same . 
 principle and under the same circumstances as verbal declarations. Collier v. The State, 
 8 Eng. (13 Ark.) 676 ; Campbell v. The State, 11 Geo. 353. Though the statement of the 
 deceased be written and signed, and sworn to ex parte, it is not received in evidence 
 against the prisoner, unless it was made in artiaiUo mortis. Collier v. The State, supra.) 
 
 (3) R. V. Sellers, Car. Cr. L. 333. 
 
 (4) Supra, p. 5. 
 
 (5) See by Lord Ellenborough, C. J., in R. v. Hucks, 1 Stark. R. 533 ; by all the judges 
 in John's Case, 1 East, 357 ; and in Welborn's Case, 1 East, 366. And see R. v. Van 
 Butchell, 3 C. & P. 631 ; R. v. Crockett, 4 C. & P. 544, and all the more modern cases. 
 
 (As in other cases, the question as to the admissibility of the evidence is addressed to 
 the court. Smith v. The State, 9 Humph. 9 ; Lambeth v. The State, 33 Miss. (1 Cush- 
 man), 333 ; State v. Bash, 13 Ired. 383. Proof of an incidental fact, in dispute between 
 the accused and the deceased, may be given (Lambeth v. The State, 33 Miss. (1 Cushman), 
 322) ; so in regard to an attempt to break jaU. Fanning v. The State, 14 Mis. 386. The 
 court decides whether the testimony is cojnpetent, is admissible ; and the jury are to 
 determine what credibility the evidence is entitled to. The State v. Arnold, 13 Ired 184 • 
 McLean v. The State, 16 Ala. 673.) 
 
 Vol. L 31 
 
242 Eff'ect of Dying Declarations. [ch. viii. 
 
 question depends on a preliminary investigation of facts, it would be much 
 more within the ordinary province of juries than of judges. (1) If the jury 
 
 were to decide the question, whether the statement or the deceased 
 *238 *be what is called a dying declaration, it is probable that they would 
 
 most commonly decide it in the affirmative ; there being generally a 
 strong feeling of sympathy for the deceased, against the prisoner, excited 
 by the circumstance of the declarations of a dying man, brought forward 
 against the person standing before them, charged with his murder. But 
 the judge is free from that feeling ; his sympathy is engaged for the attain- 
 ment of truth, and the equal administration of justice. The question, 
 therefore, is more likely to be well and truly decided by the judge than by 
 the jury. It is often an anxious, some feel it a painful, question, which the 
 judge has to decide :(2) but that very feeling is iavorable to a right decision, 
 and may be used as an argument for the soundness of the existing rule. 
 
 This species of proof has been spoken of as an anomaly, and contrary to 
 all the general rules of evidence, yet as having, where it is received, the 
 greatest weight with juries. It is an exception to the general rule, inas- 
 much as the declaration was not made upon oaith, and not subject to 
 cross-examination. But when it is considered against whom it is produced 
 as evidence, under what circumstances it must be made, and the limits as to 
 its admission ; and, further, that the unconditional exclusion of this kind of 
 evidence would often be the exclusion of truth, it will perhaps be thought, 
 that the exception which has been made is as sound and just as the general 
 rule itself. 
 
 Eff^ect of dying declarations. With respect to the effect of dying decla- 
 rations, it is to be observed, that although there may have been an utter 
 abandonment of all hope of recovery, it will often happen that the particu- 
 lars of the violence to which the deceased has spoken, were like to have 
 occurred under circumstances of confusion and surprise, calculated to pre- 
 vent their being accurately observed. . The consequences also of the 
 *299 violence may *occasion an injury to the mind, and an indistinctness 
 of memory as to the particular transaction. The deceased may have 
 stated his inferences from facts, concerning which he may have drawn a 
 wrong conclusion, or he may have omitted important particulars, from not 
 
 (1) The question was left to the jury by Eyre, C. B., in Woodcock's Case, 1 Leach, 502. 
 But the judge so far decided the point of admissibility, as to receive the evidence, direct- 
 ing the jury to reject it, if they came to a particular conclusion respecting certain facts. 
 See remarks of Sir D. Evans, 3 Pothier, 293. And see Campbell's Case, cited by Parke, 
 B., in Bartlett v. Smith, 11 M. & W. 486 ; Swpra, p. 5. See also the observations of Alder- 
 Bon. B., in Ashton's Case, 2 Lew. C. C. 147. 
 
 (2) See by Coleridge, J., in R. v. Spilsbury, 7 C. & P. 190. 
 
 Lambeth v. The State, 1 Cushman R. 322. " The awful sense of the party making the 
 declarations, and his belief in his immediate and impending dissolution, are considered by 
 our law as equivalent to the sanction of an oath. If the declarant, by reason of infancy, 
 or imbecility of mind, tender age, or a disbelief in a future state of accountability, would 
 have been excluded as u, witness while living, his dying declarations would, for like 
 causes, be rejected by the court." 23 Mississippi, 322. In Noel Green v. The State of 
 Missouri, this instruction, given to the jury on the trial, was held correct : " The dying 
 declarations of a person who has been killed, if made with regard to the circumstances 
 which produced his death, are to be received with the same degree of credit as the testi- 
 mony of the deceased would be, if examined under oath as a witness." 18 Missouri, 383. 
 It would bo more accurate to say that such testimony is admissible in evidence, and that 
 it is for the jury to weigh the testimony before them. Thus, if it be. proved that the 
 deceased said "A. B. has shot me or has killed me;" it is for the jury to And from that and 
 the other testimony in the case, whether the deceased intended to state a fact within his 
 own personal knowledge, or a mere inference from other facts. In the latter case the 
 declaration should have no weight whatever with the jury. The State v. Arnold, 18 Ired. 
 (N. C), 184. 
 
 Or(£narily, the declarations must concern the transaction and constitute what is consid- 
 ered a part of the res geatm to render them admissible in evidence. McLean v. The State, 
 16 Ala. 672 (N. S.) 
 
SEC. VI.J Effect of Dying Declarations. 243 
 
 having his attention called to them. Such evidence, therefore, is liable to 
 be very incomplete. He may naturally also be disposed to give a partial 
 account of the occurrence, although possibly not influenced by animosity or 
 ill will. Nor is it to be forgotten, that animosity and resentment are not 
 unlikely to be felt in such a situation. The passion of anger, once excited, 
 may not have been entirely extinguished, even when all hope of life is lost. 
 Such considerations show the necessity of caution in receiving impressions 
 from accounts given by persons in a dying state, and the importance also of 
 
 inquiring into their manner and deportment at the time.(l) 
 *300 *The remark^before made on verbal statements, heard and reported 
 
 by witnesses, applies equally to dying declarations, namely, that 
 
 (1) Note 101. — After the testimony shall have been received as competent, its credibility 
 is yet fully open to the observations of the. counsel and the court, and the consideration of 
 ■the jury. An Irishman and his wife were seen riding in a wagon, lie striking her with a 
 stick. On stopping after a few mUes, the wife was taken ill, and died within a few hours, 
 having declared that her husband had, by flogging her, caused her death. She expressed 
 a confidence that she must shortly die, and an anxiety that the husband should be pursued 
 and punished. The declarations of the deceased were received against the husband on 
 the trial, for the murder of his wife, and the jury convicted him. On his case being pre- 
 sented to the governor CPhroop), and on his excellency conferring with his judicial council, 
 the prisoner's sentence was, on a question of law, commuted for punishment in the state 
 prison, as for manslaughter in the first degree. But the council also expressed themselves 
 dissatisfied with the declarations, as probably indicative of a quarrel, hard feeling, and 
 perhaps malice on the part of the deceased, and would, most likely, have recommended an 
 absolute pardon, had it not been for other strong evidence in the cause, which was nearly 
 able to sustain the conviction of itself The People v. Mason, Sairatoga Oyer and Terminer, 
 Nov. 1831, Cowen, C. Judge, presiding. 
 
 In making up their minds on the credibility of these declarations, the jury have been 
 allowed to travel over the same ground which the court had occupied in seeing whether 
 it was competent. Trant's Case, Macnally's Ev. 385. Sir W. D. Evans (2 Bv. Poth. 394), 
 supposes that in John's Case (1 East's P. C, c. 2, § 24), the judges meant to deny this 
 right, when they declare that it ought not to be left to the jury to say whether the 
 deceased thought she was dying or not. Perhaps that was said, though the expression is 
 certainly quite general, with a view to the question of competency merely. It was very 
 strong to say that the jury might not finally conclude, and the deceased labored under no 
 apprehension of death, when they came to measure her credibility ; and we should think 
 with the learned commentator (2 Ev. Poth. 295), that it is without the support of analogy. 
 Though the court should receive a witness as competent in his religious principles, yet he 
 might, it is presumed, be so far impeached as to destroy all credibility, and warrant the 
 jury finally in saying that he was destitute of religious principle. So should the expecta- 
 tion of death appear, on the whole, to have been affected for the purpose of revenging a 
 quarrel in the pursuit of the oflender, might not the jury make great deductions from 
 credibility, though competency had before been prima facie made out ? Other consider- 
 ations are also due to this question of the declarant's credibility. " Strongly as his 
 situation is calculated to induce the sense of obligation, it must also be recollected that it 
 has often a tendency to obliterate the distinctness of his memory and perceptions ; and, 
 therefore, whenever the accounts received from him are introduced, the degree of his 
 observation and recollection is a circumstance which it is of the highest importance to 
 ascertain. Sometimes the declaration is of a matter of judgment, of inference and con- 
 clusion, which, however sincere, may be fatally erroneous ; the circumstances of confusion 
 and surprise, connected with the object of- the declaration, are to be considered with the 
 most minute and scrupulous attention; the accordance and consistency of the fact related, 
 with the other facts established by evidence, is to be examined with peculiar circumspec- 
 tion, and the awful consequences of mistake must add their weiAt to all the other 
 motives for declining to allow an implicit credit to the narrative, on the sole consideration 
 of its being free from the suspicion of willful misrepresentation." 2 Ev. Poth. 293. 
 
 Mr. Starkie, after quoting these remarks of Sir Wm. D. Evans, with approbation, adds, 
 " that this seems to be the only instance in which evidence is admissible against a prisoner 
 who has not had the power to cross-examine, an anomaly, which in itself calls for great 
 caution and circumspection in the use and application of such evidence. Finally, it has 
 never been received except in cases of murder, where if the dying person were certain as 
 to the author of the violence ; yet, in the case of a quarrel and conflict, he might be under 
 a strong temptation to give a partial account of the transaction, although all motives of 
 personal hostility had ceased. In other cases, it is far from improbable that he would 
 attribute the fact to some person whom he suspected to be his enemy, when if his grounds 
 for supposing so could have been investigated, they might have turned out to be very 
 Tinsatisfactory." 4 Stark. Ev. 461. 
 
244 Meception, when against Interest [ch. vni. 
 
 they are liable to be misunderstood and misreported from inattention, from 
 misunderstanding, or from infirmity of memory. 
 
 SECTION vn. 
 
 Exceptions to the General Rule as to Hearsay, in cases where Declarations 
 have been made hy Persons, since Deceased, against their Interest. 
 
 Another exception to the rule excluding hearsay evidence has been estab- 
 lished in modem times, in the case of certain declarations and entries made 
 by persons since deceased. This exception applies to a description of facts, 
 the evidence of which, being usually confined to the knowledge of a few 
 persons, would frequently be lost, if the strict rule, which excludes hearsay 
 evidence, were enforced. And it will be seen, that by the qualifications 
 under which this kind of evidence is admitted, many of the general objec- 
 tions to hearsay evidence are obviated. This subject will be conveniently 
 discussed, by considering, first, those declarations and entries which are 
 receivable on the ground of their operating against (the interest of the per- 
 sons making them; and, secondly, those which are receivable on the ground 
 of their 'being cotemporaneous entries in the ordinary course of duty or 
 employment. The two divisions, however, are intimately connected with 
 each other. 
 
 General rule. It is a rule of evidence clearly established, that the decla- 
 rations of persons since deceased (under which term of declarations, all 
 written statements and entries are intended to be comprehended), are 
 admissible, where those persons are to be presumed conusant of the subject 
 matter of the declarations, and where their declarations apparently 
 *301 operate against their own *intere8t, whether pecuniary or proprie- 
 tary. (1) It is presumed, where declarations are made under these 
 
 (1) By Plumer, M. B., in Short v. Lee, 2 J. & W. 464 ; by Bayley, J., in Doe d. Keece v. 
 Robson, 15 East, 34 ; by Parte, J., in Middleton v. Melton, 10 B. k C. 338. See also Hig- 
 ham V. Bidgway, 10 East, 109 ; The Sussex Peerage Case, 11 CI. & Fin. 103, 114. 
 
 Note 103. — (And in thin country ; Pike v. Hayes, 14 N. Hamp. 19 ; Smith v. Powers, 15 
 Id. 546 ; 4 Id. 213 ; Highley v. Bidwell, 9 Conn. B. 447 ; St. Clair's Heirs v. Shale, 20 Penn. 
 State B. 105 ; Pearce v. Jenkins, 10 Ired. (N. C.) 355 ; Thomas v. Degraffenreid, 17 Ala. (N. 
 S.) 603, 616. As acted upon in this State, the exception to the general rule of evidence as 
 to hearsay testimony is, that where the declarant is deceased, and where it appears that 
 he possessed competent knowledge of the facts, and that his declarations were at variance 
 with his interest, they are admissible in a suit between third persons, and such declarar 
 tions need not be in writing. White v. Chonteau, 10 Barb., 303, per Edwards, J., citing 
 Ivat V. Finch, 1 Taunt. 141 ; Peacock v. Watson, 4 Id. 16 ; 1 Greenl. Ev. § 147. The pre- 
 cise point adjudged in White v. Chonteau was this, that the declaration of the owner of 
 goods that he had made a sale of them and received the purchase money upon the plaintiffs' 
 guaranty, was admissible after his death, being clearly against his interest; since it was 
 an admission that his debt had been satisfied by the plaintiffs'. Higham v. Ridgeway, 10 
 Bast, 109 ; Middleton v. Melton, 10 B. & Cr. 317. So as to an admission of indebtedness. 
 Pearce v. Jenkins, 10 Ired., N. C. 355 ; or of part payment ; Schenck v. Wariw, 37 Barb. 
 258 ; or that a signature was genuine ; People v. Blakely, 4 Park. Cr. 176. On the 
 authority of Ivat v. Finch, supra, and of Smith v. Smith, (3 Bing. N. C. 29) it has been 
 held that the declarations of an intestate accompanying the delivery of notes to the 
 maker of them, "take them and do what you are a mind to with them," and his prior 
 and subsequent declarations of his intention to give them to the plaintiff, are admissible to 
 establish the gift, in an action by the donee against the administrators of the deceased ; 
 such declarations show the intent with which the delivery was made. Smith v. Maine, 
 25 Barb. 83. Strictly speaking, the declarations accompanying the delivery are a part of 
 the rea gestm, and admissible on that ground ; while the prior^and subsequent declarations 
 are admissible to explain the ambiguity of the language used in the act of delivery, on the 
 principle stated in^the text. See poet p. 386. There must be a delivery of the thing 
 given, iti order to render the gift valid. There is no distinction in this respect between a 
 gift inter vivos and a donatio mortis causa. Harris v. Clark, 3 Comst. N. Y. Bep. 98.) 
 
 The general principle that the entry of a deceased person, whereby he charges himself, 
 
SEC. VII.] Or in the Course of Duty. 245 
 
 with the extension of that principle by the courts, was considered by Baylies, J., in Chase 
 V. Smith, 5 Verm. Rep. 558, 559. 
 
 We propose here to notice a few cases on the subject of receiving as evidence the entries 
 of third persons, whereby they discharge demands due to them from others. Where 
 such third persons are dead, the English authorities cited by our author are pointed and 
 uniform that the entry shall be received ; and have been, and doubtless will be, followed 
 vrith equal uniformity by the American courts. Thus, in an action for money paid by the 
 plaintiff as surety for the defendant on their joint note, it appeared that both parties had 
 been sued on the note, and a judgment obtained in favor of the payee, by Mr. Taylor, as 
 attorney. He having died a few days before the trial of the present action, his certificate 
 was received, showing what part of the judgment was paid by the principal, and what by 
 the surety. Thompson v. Stevens, 3 Nott & M'Cord, 493. 
 
 The turning point in the admission of the entry in these and the like cases is, that the 
 person who made the entry is dead. Being dead, the entry in discharge proves not only 
 the simple fact of payment, so as to extinguish the debt, but may be received to every 
 incidental matter stated in the declaration. Thus, the entry in the books of the midwife, 
 stated in the text, proved not only the payment, but the time of the birth. The entry of 
 Mr. Taylor (in Thompson v. Stevens, gupra,) proved not only the payment but by whom 
 it was made, and on what account, distitiguished between the principal and the surety. ' 
 And see Mr. Heald's brief in note 6 to the case of Barker v. Bay, 2 Russ. Rep. 31. 
 
 Far different is this matter where the declarant is alive. Thus, in an action by one 
 surety against another, for contribution of money paid by the plaintiff on a bond to West 
 and others, after the plaintiff had proved thepayment, the defendant insisted that, before 
 the plaintiff had paid, the principal had discharged the debt, so that the plaintiff had 
 paid in his own wrong. To show the previous payment, the defendant proved that the 
 principal had paid money to the obligees, and then offered to prove the admission of 
 West, one of the obligees, that such payment had been made on account of the bond. It 
 was objected that West should be called, and the objection sustained. Parke, J., remarked, 
 that what West said at the time of the payment, might be received as a part of the res 
 gesta; but any declaration made after payment, upon what account he received the money, 
 is no evidence against the plaintiff. His unsworn declaration cannot bind any interest of 
 the plaintiff. Dunn v. Slee, Holt's N. P. Bep. 399. And a mere oral declaration of this 
 character, coming from the creditor, even after his decease, would be inadmissible. In a 
 like action for contribution, the defendant offered to prove, by the creditor's adiinowledg- 
 ment, she being dead, that the defendant had paid |300 of the money as surety. This 
 was offered in order to reduce the amount of contribution. The fact of payment, or by 
 whom, or on what account made, was not offered to be proved in any other way. The 
 evidence was rejected as hearsay. The court said such admissions ought not to be received 
 at all, except against the party making them, or those claiming under him. Thomas v. 
 ThoBMLS, 2 J. J. Marsh. 60, 64, 65. In a similar action, a receipt for the moneys, signed by 
 the attorney on record, of the creditor who had sued and obtained judgment against the 
 sureties, was denied as evidence between the latter, though offered merely to show the pay- 
 ment of the money, the attorney being still alive. Warner v. Price, 3 Wendell, 397, 398, 
 400. The receipt was obviously no better evidence than if made by the party instead of 
 his attorney; it would be ^ma/acie evidence against the former, but as between the 
 sureties, or between them and their principal, was no more than a written statement, 
 *302 without oath. As we said on another occasion, when a *letter of the alleged receiver 
 of goods on commission was produced against the defendant (who was sued for 
 having fraudulently recommended the receiver as credit worthy) acknowledging the deliv- 
 ery of the goods, " collusions might be formed between plaintiffs and their witnesses, who 
 might easily be induced to make declarations in letters, which they would be afraid to 
 verify on oath in open court. Per Tilghman, C. J., in Longenecker v. Hyde, 6 Bin. 1, 2. In 
 assumpsit, for goods sold to the defendant's wife, who was entitled to a separate mainte- 
 nance payable by the defendant to trustees, the material question was whether the main- 
 tenance had been regularly paid. To show this, the receipts of the trustees were offered in 
 evidence by the defendant. Held inadmissible ; and per Owna/m, " A man's receipt is not 
 evidence to prove a payment against a-*hird person. Those who gave the receipts should 
 have been called."_ Cutbush v. Gilbert, 4 Serg. & Rawle, 551, 556. In trover, for goods 
 distrained, the plaintiff insisted that he was tenant of John Brown, and not of the defend- 
 ant, Hugh Brown ; aiid showed that the payment of rent had always been to John. To 
 show tlmt John had received the money as the defendant's agent, the latter offered John's 
 account of the payments rendered by him to the defendant. Held, that John being alive, 
 should be called ; and the account was rejected. Sparge v. Brown, 9 Barnw. & Cress w. 935! 
 
 In another action, it appeared that Beaman had, with three others, signed a note to the 
 Bank of Rutland. He insisted that he was their surety ; and to prove that he paid 
 the money, produced and offered in evidence the receipt of the cashier, indorsed on the 
 note, stating that he (Beaman) had paid the money. The judge refused to receive this, 
 as evidence either of payment or of the person who paid, there being no proof that the 
 cashier was dead ; indeed, it was admitted that he was living, and but a little way off. 
 And afterwards, on motion for a new trial, the judge refused it. Beaman v. Cuslmian et 
 
246 Maception, when against Interest [ch. viri. 
 
 al., Waslungton Circuit, June, 1833, before Cowen, Circuit Judge, wlio refaeed the motion 
 for a new trial, at his next term, August, 1833. 
 
 The general rule, therefore, is, that certificates, receipts, or other admissions of pay- 
 ments, made by persons other than the party to the suit in which they are offered, cannot 
 be received ; but such payments mutt be proved by a witness. Cluggage's Lessee v. 
 Swan, 4 Binn. 150, 154. Accordingly, the certificate of a living surveyor, that he had 
 received his fees of survey, being offered to affect a party in a suit with which the sur- 
 veyor had no concern, was held inadmissible. Id. And the admission of the plaintiff's 
 agent to collect the money, that he had made the collection, is no evidence against his 
 principal. Davis v. Whitesides, 1 Dana's Bep. 177. 
 
 It cannot be denied, however, that the rule has been avowedly departed from in one or 
 two cases. Thus, where one Sherman authorized Crosby to settle a suit brought against the 
 former by Bennet, and pay the money to be found due on the settlement; in a suit 
 between the two former, wherein Crosby claimed the money as paid by him on the set- 
 tlement, a receipt for the money as paid on the judgment in the cause signed by Bennet, 
 was admitted as evidence of the settlement and payment, to charge Sherman. Sherman 
 v. Crosby, 11 John. R. 70. The court say the receipt was prima facie evidence of the 
 demand and payment ; and it lay with Sherman to impeach it. Of this case it should be 
 remarked that there was no pretense that Bennet was not alive, and within the jurisdic- 
 tion of the court. He stood as creditor, and Crosby paid the money to him at the request 
 of Sherman. The amount of the decision is, that in all actions for money paid, the 
 receipt of the payee, though he be alive, shall be admissible to charge the defendant with 
 the fact of payment. Beimet was not an agent, hor a joint party with Sherman, either 
 on the record or as having a common interest ; the receipt might or might not have been 
 a part of the res geatm, but the latter did not appear, for no act was shown to which the 
 written declaration would attach. To put. it on the latter ground, would, therefore be a 
 plain instance of the petitio prineipii. In a word, there seems to he no Instance, if we 
 except the next case infra, within which Sherman v. Crosby can be brought. It would 
 operate to reverse tlie entire rule laid down in Tilghman, C. J., by Cluggage's Lessee v. 
 Swan, supra. Receipts and certificates of private persons would become substitutes for 
 their sworn testimony. In actions for money paid, this new kind of written evidence 
 would be the universal, because the ready medium of proof ; which may, according to 
 Tilghman, C. J., supra, be collusively introduced ; and, we may add, amended, like a notary's 
 certificate to charge an indorser, or a justice's exemplification of his proceedings, till it 
 shall be full and plain to the purpose. It would be a convenient mode of proof for fraud- 
 ulent purchasers of property, under pretense of having paid large debts for the insolvent, 
 or paying him a large consideration. Both the, time and the amount of payments are 
 generally of great consequence in such cases ; and the strictest rules of evidence can with 
 difliculty guard against imposition. We make these remarks, not only because the case 
 of Sherman v. Crosby is imposing in itself, decided as it was by a tribunal of acknowl- 
 edged ability ; but because we think it does not stand alone. In, another case the plaintiff 
 sued for passage money to Eiirope, paid for the defendant's testator, and the captain's 
 oral admission made about the time the testator sailed, was received as proof of the pay- 
 ment. The captain was dead, and the court below put it on this ground. On error, the 
 Court of Appeals repudiated that principle, and said, whether the captain was dead or 
 alive the testimony was admissible, being made by one able to bind himself by a receipt 
 or acquittance, and made too about the time of the testator's sailing. If it were to stand 
 on the ground of the captain's death, perhaps the court would require that it should have 
 been in writing. Holladay, Ex'r, v. Littlepage, a Munf. 314. This is doubtless a safer 
 case than Sherman v. Crosby. The captain being dead, it wants only the form of a writ- 
 ten entry to bring it within the English rule. But whether dead or living, the oath of 
 the hearer could fix the time when the declaration was made ; and prevent imposition in 
 that particular. This case, however, fails as to any support from the declaration being a 
 part of the res gestm. Proof aliunde, that money was paid, and that the declaration was 
 cotemporaneous with the payment, would alone give it that character, so as to bring it 
 within the suggestion of Parke, J., in Dunn v. Slee, svpra. It seems also to fail in sup- 
 port from any adjudged case founded on the declarant's death ; for we believe not one has 
 yet gone the length of saying that oral declaration of a person, however much it may 
 militate against his interest, shall be received merely upon the ground that he is dead. 
 But see the next note. Not only must the declaration be written, but we believe its intro- 
 duction has generally been accompanied with circumstances. calculated, affirmatively, to 
 repel suspicion that it may have been simulated. In the latest English case which we 
 have seen (Spiers v. Morris), stated posi, 336, the executor's account appears to have been 
 brought from what is called the proper custody (probably the clerk's office of the Ecclesi- 
 astical Court), and from the account so found, the entry was read. Such precautions are a 
 safeguard against both collusion and forgery. 
 
 In Prather v. Johnson (3 Har. and John. 487), there is a gratia dictum of the court, in an 
 opinion delivered after an expa/rte hearing of the cause, in these words : " If A., as surety 
 for B., pays a debt due to C, on the proof of the payment, A. could recover of B. He 
 could recover gn C.'s saying A. had paid, and of course, if C. vyrote that A. had paid, surely 
 
SEC. vn.] Or in the Course of Duty. 247 
 
 *303 circumstances, that they are entitled to *credit, because the regard 
 ■which men pay to their own interest, may safely be considered as a 
 *304 sufficient guaranty ' against their prejudicing *themselves by any 
 erroneous statement, and the assumed tendency of the declarations 
 precludes the probability of any fraudulent statement. Indeed the appre- 
 hension of fraud in such cases is in a great measure removed, without 
 reference to the fact of the declarations being against interest, when it is 
 considered that declarations are not receivalble during the lifetime of the 
 authors of them; and that it is always competent for the party against 
 whom they are produced, to point out any sinister motive for making them. 
 It is true, the great tests of the fidelity, accuracy and completeness of judicial 
 evidence are here wanting. But the inconveniences which would result 
 from the exclusion of evidence are considered as outweighing, in the 
 generality of cases, the inconvenience of admitting such hearsay declarations, 
 under the limitations and securities above mentioned. 
 
 Verbal Declaration. It will be seen that the greater number of cases 
 decided upon this subject refer to written entries, but there seems to be no 
 reason why the admissibility of such evidence should be limited to state- 
 ments in writing ; and in fact, in several cases verbal declarations have been 
 admitted without objection, when they were clearly against the interest of 
 the party making them.(l) 
 
 Such verbal declarations will, of course, be entitled to less weight than 
 written statements, as being more carelessly made, often unfaithfully 
 reported, ahd less frequently connected with any course of business ; but 
 this objection will not aifect their admissibility. Tljie question whether 
 such verbal statements are admissible, was much discussed in the case of 
 Fursdon v. Clogg;(2) but the court do not appear to have expressed any 
 opinion on the point, and gave their judgment upon another ground. (3) 
 
 Declarant must he deceased. The declarations of a living person, how- 
 ever much against his interest, cannot be received, (4) unless in the case of a 
 
 it is evidence, whetlier the writing was in a book or a letter." p. 490. We sliall only say 
 that this dictum is fully sustained by the above cases of Sherman v. Crosby and Holladay 
 V. Littlepage, which do go the length of saying that what a third person speaks or writes, 
 if it be prima fctcie evidence of a fact against his own interest, may, provided it be rele^ 
 vant to the rights of another, be brought in as hearsay evidence to bind those rights, 
 although the declarant be alive, a perfectly competent witness, within reach of process, 
 and able to attend the court ! See farther, several cases of the like import examined, 
 post, in these notes. 
 
 In taking the accounts of guardians or trustees, receipts for disbursements are admis- 
 eible on proving the receiptor's handwriting, without producing the persons who gave 
 the receipts. Held in favor of guardians who sued for moneys they had received and 
 applied, on the sales of land for their ward,, the title to which had failed, and the consid-^ 
 eration for wliich they were obliged to refund. The receipts were from creditors for 
 money paid them in behalf of a spendthrift, for whom the plaintiffs were appointed 
 guardians ; and they were required by the referee to produce those receiptors as witnesses 
 who were alive and within the commonwealth. Sernble, by the opinion, that even this 
 would hardly be required. Sherman v. Akins, 4 Pick. 383, 384, and 393. This seems to 
 be an exception in favor of trustees, in accounting before a master, auditor, &c. In an 
 action by an agent for an administratrix, to recover for his services rendered in settling 
 the estate of her intestate, receipts by the distributees, acknowledged according to a 
 statute of the state of Maryland, for the dividends, were held receivable without farther 
 proof of them, as'evidence of service done. Carroll v. Tyler, 3 Harr. & Gill, 54. 
 
 (1) See Ivat v. Pinch, 1 Taunt. 141 ; Davies v. Pierce, 3 T. E. 53 ; Holloway v. Eakes, 
 cited Id. 55 ; Strode v. Winchester, 1 Dick. 397 ; Sussex Peerage Case, 11 CI. & Fin. 103, 
 114. 
 
 The declarations of a deceased person against his interest, such as a verbal statement 
 that he was at a given time Indebted to another, are admissible. Pearce v. Jenkins, 10 
 Ired. (N. C.) 355. 
 
 (3) 10 M. & W. 573. 
 
 (3) But see 1 Stark. R. 613. 
 
 (4) Spargo v. Brown,'9 B. & C. 935 ; PhiUips v. Cole, 10 A. & E. 106, 111 ; Smith v. 
 Whittingham, 6 C. & P. 78. 
 
248 Mcception, when against Interest [ch. vin 
 
 party to the suit, or of a person individually and immediately interested 
 therein ;(l) even where a person has absconded and gone ahroad under 
 apprehension of a criminal charge, and though it be altogether out of the 
 power of the party to the suit to produce him as a witness, his declaration 
 will not be admissible. (2) 
 
 *305 * Means of knowledge in declarant, his interest. The decisions of the 
 judges do not Seem to require any peculiar means of knowledge in 
 the declarant, (3) or that the declarations should be connected with the facts 
 to which they relate. Nor does it seem necessary that the declarations 
 should have been made by persons in the course of any business or employ- 
 ment ; or that declarations against interest should be cotemporaneous with 
 the facts to which they relate. (4) 
 
 In many of th^ decisions respecting the rule under consideration, it will 
 perhaps be thought that the interest of the party was so slight as to pro- 
 duce little, if any effect. And it would seem that the judges, from an 
 apprehension of shutting out the truth by the rejection of evidence have, 
 in many instances, been contented with very unsatisfactory presumptions 
 as to the fact of the party's interest being opposed to his declaration. 
 
 In some cases, the courts appear to have considered declarations to be 
 admissible, without proof that the party making them had any actually 
 existing interest, which could be thereby lessened or endangered. (5) Hence, 
 a declaration, accompanied by an admission, apparently against interest, 
 was formerly held to be receivable, although, in point of fact, the declarant 
 did not compromise his interest at all, but only made an admission appa- 
 rently against interest, and without any real transaction to which it could 
 relate. In several of the cases formerly decided upon this subject, the 
 inference, that the declarations were against interest, apj)ears to have been 
 on the unwarrantable assumption of the existence of real facts as a founda- 
 tion for the statement; and the accuracy of the declarations has been 
 inferred from a supposition, that the persons making an entry must have 
 Tjeen particularly cautious in the statement of all its details, as thereby 
 precluding themselves from afterwards attempting to set up an unfounded 
 demand. In a few cases, indeed, where the facts admitted of it, the 
 ■*306 judges have laid stress on the circumstance that the *entry was 
 proved by extrinsic evidence to have been made against interest. (6) 
 
 It may, however, be considered as finally settled, that a declaration of this 
 nature, in order to be receivable in evidence, must be against the interest of 
 
 (1) ViM infra. Sect. 10, On Admissions. 
 (2)- ■ - •----■ 
 
 J, y., Stephen v. Gwenup, 1 Mo. & R. 120. And see Harrison v. Blades, 3 Camp. 437 ; 
 TManby v. Curtis, 1 Price, 283 ; Cooper v. Marsden, 1 Esp. 2. 
 
 Alexander v. Mahon, 11 John. R. 185 ; Woodward v. Paine, 15 Id. 493. See also Beach 
 V. Wise, 1 Hill "R. 612 ; which was an action on a negotiable note transferred to the 
 plaintiflF by the payee after it became due, where an offer to prove declarations of the 
 payee made while he remained the owner of the note, and before it was transferred to 
 the plaintiff, the payee being since dead, was rejected. Kent v. Walton, 7 Wend. 256. 
 In these two last cases, the rule established in this state, that the declarations of a former 
 owner of a chose in action cannot be shown in evidence against a person deriving title 
 from him, was held applicable notwithstanding the death of such former owner. See 
 Smith V. Schenck, 18 Barb. 344 ; Paige v. Cagwin, 7 Hill, 361 ; 2 Selden, 309. 
 
 (3) See by Bayley, J., in Higham v. Ridgway, 10 East, 122 ; by Tindal, C. J., in Marks 
 v. Lahee, 3 N. C. 419 ; by Park, J., Id. 430 ; by Vaughan, J., Id. 431 ; by Lord Eldon, C, 
 in Barker v. Ray, 2 Russ. 76. See also Crease v. Barrett, 1 C., M. & R. 925. 
 
 (4) By Parke, J., in Doe d. Patteshall v. Turford, 8 B. & A. 890: by Plumer, M. K., in 
 Short V. Lee, 2 J. & W. 464 ; where it is said that it is not necessary, in the case of coUect- 
 <jrB' books, to produce the very paper by which they collected. 
 
 (5) See the cases collected in Barker v. Ray, 2 Russ. 67, n. 
 
 (6) Higham v. Ridgway, 10 Bast, 109 ; Doe d. Gallop v. Vowlos, 1 Mo. & R. 261 ; Crease 
 V. Bairett, 1 C, M. & R. 919. 
 
SEC. vii.J Or in the Course of Duty. 249 
 
 the party who made it, and also that such interest must he of a pecuniary 
 or proprietary nature. (1) 
 
 In a late case (2) from sessions, a book was produced, in which a deceased 
 person had kept minutes of his contracts with his servants, and which con- 
 tained the following entries in his writing : " April 4th, W. came ; and to 
 have for the half year 40s. September 29th, paid this 21. ;" and it was held 
 that these entries were not admissible as declarations made against the 
 writer's interest. (3) Lord Denman, C. J., remarked : "The memorandum 
 could only fix upon him (the master) a liability, on proof that the services 
 referred to had been performed : and whether, on dispu'te, a jury would 
 have found him liable for the sum entered, or more or less, we cannot say." 
 
 Entries as to receipt of money. The cases in which the exception to the 
 general rule, now under consideration, has been most commonly made, are 
 where the proposed evidence consists of entries of the receipt of money, 
 whereby the person who made them, has charged himself as accountable for 
 the money received. Entries, so made, are evidence of the fact of the 
 receipt of the money. Thus the acknowledgments by deceased stewards, 
 reeves and bailiflFs, in their books, of the receipt of money for which they 
 have been accountable, are very frequently adduced in evidence by their 
 employers, or those claiming under them, or even by strangers. (4) Such 
 entries often acquire additional credit from the circumstance that they 
 would, in the ordinary course of business, be expected to be kept. And 
 such accounts seem to be of greater credit than entries in private books, 
 inasmuch as they are usually subjected to inspection, and are the foundation 
 of transactions between the steward and his employer. 
 
 *307 *Mitries in private books. But entries made in a private book, kept 
 by the receiver of the money for his own convenience, whereby he 
 has charged himself with the receipt of sums of money, are nevertheless 
 admissible to prove the fact of their having been received, even though 
 there may exist no privity between the deceased and the party against 
 whom the evidence is tendered. Thus, where an entry was made by a 
 deceased collector of taxes, in a private book kept by him for his own 
 convenience, whereby he charged himself with the receipt of sums of 
 money, the entry was held to be admissible evidence to prove the fact 
 of the receipt of the money in an action between third persons, agreeably 
 to the general principle above stated. (6) 
 
 (1) Sussex Peerage, 11 CI. & Fin. 103, 108, 109, 111. See also the Berkeley Peerage, 
 Print. Min. p. 655 ; Davis v. Lloyd, 1 Car. & K. 376. And see nipra, as to hearsay evi- 
 dence in matters of pedigree. 
 
 (2) R. V. Worth (Inhabs.), 4 Q. B. 1 33. 
 
 (3) They were also held to be not admissible either as being written in the course of 
 business, or as embodying a contract. 
 
 (4) See Barry v. Bebbington, 4 T. R. 514 ; Edwards v. Rees, 7 C. & P. 340 ; Manning v. 
 Lechmere, 1 Atk. 453. That this is a usual mode of proving payments under old leases 
 and licenses, see Rogers v. Allen, 1 Camp. 309. See further Wynne v. Tyrwhitt, 4 B. & 
 A. 376 ; Manning v. Lechmere, 1 Atk. 453 ; by Lord EUenborough, C. J., in Higham v. 
 RidgwayyfclO East, 116 ; Harper v. Brooke, 3 Woodeson's Lect. 333 ; Vin. Ab. tit. Evidence, 
 A, b. 15 ; Bullen v. Michel, 3 Price, 413 ; Pinch v. Messing, cited in Short v. Lee 3 J & w' 
 464 ; Bree v. Beck, 1 Younge's Ex. Ca. 23S, 339 ; Doe v. Tyler, 6 Bing. 563. 
 
 (5) Middleton v. Melton, 10 B. & C. 317 ; overruling Qoss v. Watlington, 3 B. & B. 138 ; 
 and Whitnash v. Geoige, 8 B. & C. 556 ; S. C, nom. Whitmarsh v. Genge, 3 M. & R. 43! 
 
 Note 103. — This case of Goss v. Watlington, does not decide whether the receipts, or 
 entries, or marks of the principal were evidence against the surety, on the ground that 
 the whofe or any, were a part of the res gestae, though this is plainly hinted ; but the 
 court seem to balance between that principle and the one which receives the entries of a 
 third person against his interest, he being dead at the trial. In the former case, death 
 would be immaterial, in the latter essential. The same doubt was left by Whitmarsh v. 
 Genge, 3 Mann. & Ryl. 43 ; 8 Barn, & Creps, S. C, by the title of Whitnash v. George! 
 That was the case of a bond for the fidelity of a clerk to the plaintiffs in payine over 
 V01.L 32 
 
250 When Declarations of Frincipal [cH..vin. 
 
 moneys, and all Jaa duties. It was his duty to keep their hooks, which he did, and 
 therein entered moneys received by him as their clerk ; and died. Lord Tenterden, C. J., 
 and the court, admit they were entries within the scope of his duty. Tet they lay much 
 stress on his death, which could not be necessary if these entries were well identified as 
 a part of his acts, and the rea gestm, and were received on that ground. The same matter 
 as in Qoss v. Watlington, came again to be considered in Middleton v. Melton (10 Bam. & 
 Cress. 317), a case of a collector's private book, by which he collected and ticked off the 
 sums paid. Several receipts, too, given by the collector to private persons, for taxes paid 
 by them, were produced, and the whole duly proved, the private bookS' being seen with 
 his family at the time of his death. All the entries and receipts were shown to have 
 been in the usual line of business of the deceased in his oflElce of collector. The whole 
 were received against his surety ; and all the judges put the evidence on the ground of 
 the entries being made by a deceased person against his interest. And see Plaxfon v. 
 Dare, 10 Barn. & Cress. 17. 
 
 Several of the American cases take up the idea thrown out by Dallas, C. J., in Goss v. 
 Watlington, that the declarations of the principal may bind in the same sense that those 
 of an agent would, both being within the scope of their business. And is there anything 
 more plain ? The words or declarations then are the acts or parts of acts ; and it is for 
 the acts of the principal that the surety is bound. In such a view, the principal need 
 not be dead. You prove his entries or declarations the same as you do his other acts by 
 a third person ; aB.d no matter that he can be produced as a witness. In Respublica v. 
 Davis (3 Yeates, 138, 130), the defendant was surety for the good behavior of Cobbett, the 
 editor. It was shown that a libel (a voliJme of " Porcupine") was paid for to Cobbett'a 
 common clerk, and this was admitted as the act of Cobbett. This case shows the prin- 
 ciple. Here was the act of Cobbett by his agent. On this distinction the entries of 
 a teller of a bank in a book kept in the bank, by which he daily stated his account, as 
 teller, were received against him, to show his default in a suit against his surety. But 
 his admissions, made in writing, after he was dismissed from his office, were denied, by 
 several of the judges. The former were likened by Cheves, J., who delivered the opinion 
 of the court, to the declarations of an agent within the scope of his authority, which are 
 a part of the rea geatm ; the latter to an agent's admission after he had ceased to act for 
 his principal. State Bank v. Johnson, 1 Eep. Const. Ct. 404, 409. The court, of course, 
 
 did not stop to inquire whether the teller was dead or alive. On the same prin- 
 *308 ciple, a jailer's receipt for a prisoner, was held receivable *against his surety. 
 
 Bernard v. The Commonwealth, 4 Litt. 148, 151. So, a statement of an account vrith 
 the bank by a cashier, explaining its receipts and defaults, made before his office termi- 
 nated ; for, per Our., the sureties " were bound, not for themselves, but for Mm : and Jiia 
 acts and sayings of course bound them ; and they must stand or fall by them." Pen- 
 dleton V. Bank of Kentucky, 1 Monroe, 171, 181. So, the return of a sheriff that a fi. fa. 
 is satisfied, is a declaration concluding his sureties in an action on their bond. Governor 
 V. Twitty, 1 Dev. 153. And so on the same principle the inventory of an administrator is 
 evidence in an action against his sureties. Chairman of Wash. C. Court v. Harramond, 4 
 Hawks, 339. Several of these declarations are obviously parts of the transactions for 
 which the sureties are bound ; and that is the true point of inquiry. They are like a part 
 payment by the principal on a promissory note, which has been held to take it out of the 
 Statute of Limitations, or to repel the presumptive bar of twenty years' delay, in respect 
 to the surety, who is jointly bound to pay. Hunt v. Bridgham, 3 Pick. 581. The surety 
 is bound that he shall do the very act which he is performing, to wit, payment, as the 
 sureties were that the cashier should do his duty by passing accounts at the bank. 
 Whereas, the mere acknowledgment of the principal with whom a surety is bound in a 
 promissory note, has been held not to affect the latter ; for such acknowledgment cannot 
 be placed within the scope of the suretyship. The case of joint debtors, where both are 
 principals, stands on a different footing ; for they bind each other in respect to their joint 
 interest, as quasi partners. Baker v. Briggs, 8 Pick. 123, 138. The same distinction was 
 suggested in Boston Hat Manufactory v. Messinger, 2 Pick. 223, 340, per Parker, C. J. 
 And see Longenecker v. Hyde, 6 Binn. 1. After the lapse of six years, the admission of 
 the principal cannot be received against the surety, even to take the case out of the 
 Statute of Limitations. Meade v. M'Dowell, 5 Binn. 195. And where the plaintiff took 
 one Burnett in as a partner in the business of tanning, and the defendants covenanted 
 with the plaintiff that Burnett should faithfully discharge his duty, as such partner, for 
 two years from the 11th of January, 1838, in an action on the covenant, assigning breaches 
 in 1838, admissions made by Burnett in 1825, that certain books offwed by the plaintiff in 
 evidence were the books of the firm, were held inadmissible against his sureties. 
 True, says Hodman, J., delivering the opinion, " That while the principal is acting, his 
 declarations may be so interwoven with his acts as to stand in direct connectfon with 
 them, and form a part of the res gestm; but when he ceases to act, his subsequent decla- 
 rations have no direct connection with his preceding acts, so as to bind his sureties." 
 Hotchkiss V. Lyon, 8 Blackf. Eep. 333. So to implicate the surety of a sheriff, his 
 acknowledgment that he had collected money, was deaied as evidence; though, per 
 Holman, J., " If this had been while he was officially acting in relation to the receipt of 
 
SBC. VII.J £md a Surety. 251 
 
 the money, the statement would have formed a part of the res gestcR. But declarations at 
 any subsequent period are inadmissiWe. It is his acts, and not his admissions or declara- 
 tions, for which the sureties are bound." Shelby v. Governor, 3 Blackf. Rep. 289. And 
 see Beal v. Beck, 3 Har. & M'Hen. 342 ; and also the examination we have bestowed on a 
 somewhat [similar question, ante, note 103. In Evans v. Beattie (5 Esp. 27), in a suit 
 against a guarantor of the sale of goods, the- admissions of the principal that he had 
 received the goods, were rejected by Lord EUenborough, C. J., who said that the stipula- 
 tion was to pay for goods received, not for goods acknowledged to hav^been received. 
 The same thing was held by him in Bacon v. Chesney (1 Stark. Rep."92), where his 
 Lordship remarked that the principal was not the general agent of the surety, so that he 
 could bind him by subsequent acknowledgments respecting the goods furnished. And in 
 another Nisi Prius case, eor, Holroyd, J., he refused the admission of the principal against 
 his surety in an indemnity bond, going to show the amount of damage. Cutler v. Newlin, 
 Mann. Dig. Evidence, H. (c) pi. 253, p. 171 (Am. ed. 1833 ; S. C, 3 Stark. Ev. 1387. (A 
 judgment against a sheriff for the misconduct of his deputy, is of no more effect in a suit 
 by the sheriff against the surety on the bond given to him by his deputy, than it is 
 against a mere stranger ; the surety having no notice of the suit against the sheriff, may 
 prove any facts which would have constituted a good defense in the suit against the 
 sheriff. Thomas v. Hubbell, 15 N. T. Eep. 405.) 
 
 So far, joining the English and American principles of action on this question, they 
 seem to result in a, comprehensive, and, at the same time, a rational and safe rule of 
 evidence. The American cases admit, as will be seen, considerable latitude in defining 
 what declarations shall be considered as a part of the res gestOB. 
 
 There are, however, a few American cases which have departed altogether from both 
 of the above grounds — thus giving to the principal all the power of a joint contractor or 
 partner, and making him more than an agent. In one case (Meade v. M'Dowell, 5 Binn. 
 195), before cited to another point, the defendant had written to ihe plaintiff, offering to 
 stand jointly bound with Wilson for any contractSi. he might make. This was 
 *309 August 13, 1798. April 33, 1799, W. sent *a letter to the defendant, giving a state- 
 ment of what he had purchased under the guaranty, and the plaintiff relied on this 
 as evidence to prove the contract and fix the amount. It was received, though objected to ; 
 and Tilghman, C. J., lays down a very broad proposition : — " Meade having confided 
 to Wilson the making of the contract, confided to him likewise the power of furnishing 
 evidence of the contract. The contract having been made by parol, without witnesses, 
 it was impossible to prove it in any other manner than by subsequent declarations of 
 the party." (p. 197.) Had the remark been confined to the time of sale, and the cotem- 
 poraneous act of acknowledging the sale by a bill, receipt or other memorandum, it 
 would he clearly within the principle of the res gestce ; but the actual contract had been 
 made some time since. The principle had ceased to deal on the credit of the defendant ; 
 and, on the whole, the decision seems founded on such a comprehensive construction of 
 the contract of guaranty as to render it more perilous than it has been generally 
 esteemed. For if the vendee of goods, under a continuing guaranty, has power at any 
 time to furnish evidence of his purchases by his declarations, why not any other principal 
 to furnish the same kind of evidence in regard to his acts, whether at the time or after 
 they are done? Surely the chief justice did not mean to make the competency depend 
 oti what he incidentally mentions, the probable want of legitimate proof; for this would 
 be a still broader opening to hearsay. Yet other and very learned tribunals have certainly 
 gone the full length of Meade v. M'Dowell ; and even the wife's admissions against her 
 surety in favor of the husband were in one case received and deliberately sanctioned. 
 He agreed with her and the defendant that she should live separate, and that he would 
 deliver her certain articles, in consideration whereof the defendant, her trustee, engaged, 
 as her surety, to pay ; and in an action against the surety, her admissions that she had 
 received the articles were held evidence for the husband, the plaintiff. Fenner v. Lewis, 
 10 John. Rep. 38. In this case, the court use terms quite as broad, indeed broader, than 
 those of Tilghman. C. J., supra. They treat tBe wife as the mutual agent to receive the 
 property; and infer that therefore her confessions would be admissible. Quere; see 
 post, as to admissions by parties and agents. " No principle," they say, " would seem to* 
 be more clear than that the person to whom performance of the act is agreed to be made 
 is competent to acknowledge such performance. If she is competent to receive, she is 
 competent to give a receipt for them ; and if her receipt would have been good evidence 
 of the delivery, her parol admission must be equally so." Several cases of admissions 
 by general agents are there cited. No doubt admissions of the person entitled to receive 
 are evidence against him. How far they are so in regard to third persons, we examined 
 ante, note 103. But this case would seem to be clearly defensible, on the principle that 
 the admission was made by the party really in interest against the nominal party, as 
 will be mentioned in regard to the same case, post. For the cases supporting this last 
 view, see our notes as to admissions by parties and others. 
 
 In South Carolina, too, the distinction advanced by some of the judges in State Bank 
 V. Johnson (supra), has been reconsidered, and the acknowledgments of the principal, 
 mt^de at any time, indefinitely let in upon the surety. This was done in an action 
 
252 Mxceptionj when against Interest [ch. viii. 
 
 *310 *It ought clearly to appear, that the effect of the entries was to charge 
 ■ the person making them. Thus, in an action for copyhold fines, the 
 hook of a deceased steward of a manor was tendered in evidence, contain- 
 ing entries of assessment of fines ; as well those paid as those not paid ; and 
 it appeared that the steward made up a book at the end of each year, in 
 which book he put down the fines that had been actually paid. The former 
 book was rejfbted, on the ground that it did not appear to contain any 
 evidence that the steward had charged himself. (1) 
 
 As to custody of these books. Accounts of this nature are commonly 
 produced from the muniments of the persons to whom the accounts were 
 rendered : and when this is the case, the amount of proof that the person 
 rendering them has actually put it into the power of his employer to use 
 them against him, as evidence of money had and received to the employer's 
 use. This circumstance appears to entitle them to much greater credit 
 than is due to entries in private books, which have never passed into the 
 custody of persons interested to make use of them against the makers of 
 the entries. The custody from which receipts are produced will materially 
 affect the question of their admissibility. When found among the papers 
 of the party who has paid the money, they are receivable as an admission 
 by the other party, if proved to be in his handwriting, that he received the 
 money, and are not open to the objection that they might have been fabri- 
 cated by the latter as evidence in his own favor ; but if they came from the 
 custody of the other party, they might be open to that objection, and might 
 not therefore, be receivable in evidence. (2) 
 
 The occupation of premises by a particular individual at a certain period 
 has been allowed to be proved by entries in a land tax collector's book, 
 stating that individual to have been rated for the premises in question, and 
 to have paid the rate, on the ground that the entry of payment was made 
 
 against the interest of the collector. (3) Upon a question whether 
 *311 premises were situate in a particular parish, the accounts of *deceased 
 
 overseers, in which there were crosses made agaiust the sums for 
 
 against the sureties of tlie sherifls. Treasurers v. Bates, 3 Bail. Bep. 362, 380, et seg. 
 The State Bank v. Johnson seems to be the only authority cited, and that contains no 
 reference to any of the numerous point blank cases the other way. In Treasurers v. 
 Bates, the court say the surety is a privy in law with the principal, and what binds the 
 latter binds the former. In a word, they are put exactly on the ground of joint principals. 
 In Simonton's Assignees v. Boucher and others (3 Wash. C. C. Rep. 473), acknowledgments 
 were also received by the principal against his sureties. The nature of the acknowledg- 
 ments, or the ground on which they were received, is not mentioned. It is a meager 
 case. These cases, which go to receive acknowledgments, are also sustained by a general 
 dictum, which fell from the court, on the trial of Respublica v. Davis (3 Yeates, 128). 
 
 Such are the the conflicting authorities upon hearsay of the principal, as evidence 
 against the surety ; the first cautiously excluding everything while the surety is alive, 
 which does not make a part of the res gestae ; or, if he be dead, receiving other declarsr 
 tions as being in writing, and against his iiiterest, and therefore coming in like those of 
 any third person disconnected with the aJrety ; the second, either placing him on the 
 footing of a general agent, or the authoritative ground of a privy in law. Among these 
 <!ases, there seems to be no doubt that those which deny to naked acknowledgments of 
 the principal any influence whatever upon the surety, come nearest to the fundamental 
 character of that relation — which is an obligation on the part of the surety to answer 
 for some act of the principal, in case of his failure, Theobald's Law of Pr. aad Sur., 
 1, 3. The obligation being precisely commensurate with that of the principal, to place 
 the surety within the reach of these admissions or declarations, would at least be 
 multiplying the means of evading that strictness in the mode of inquiry, which' the 
 surety has a right to demand. 
 
 (1) Ely (Dean and Chapter) v. Caldecott, 7 Bing. 434. And see Brett v. Beales, 1 M. & 
 M. 418. 
 
 (2) Doe d. Blaney v. Savage, 1 Carr. & K. 487, 493 ; by Atoherley, Sergt., before whom 
 the cause was tried, after consulting with Tindal, G. J. 
 
 (3) Doe d. Smith v. Cartwright, R. & M. 63. A tax gatherer's receipts, after his death, 
 are receivable to prove a person occupier of premises. See by Lord Ellenborough, C. J., 
 
SEC. vn.] Or in the Course of Duty. 253 
 
 which the tenants of the premises had been assessed, where held to he evi- 
 dence of actual payment of the rates. (1) 
 
 Declarations as to right to property. Not only declarations of the receipt 
 of money, but declarations of a variety of descriptions, made against inter- 
 est, have been received in evidence. (2) Thus, upon a questidn whether A. 
 B. died possessed of certain farming stock, it has been held, that evidence 
 might be given of a conversation, in which A. B. stated that she had 
 retired from business, and had given up her farming stock to her son-in- 
 law. (3) A bill of lading signed by a master of a vessel, since deceased, for 
 -goods to be delivered to a consignee or his assigns, on payment of freight, 
 has been held to be admissible evidence of the Sonsignee having an insur- 
 able interest in the goods. (4) 
 
 In several cases the declarations have been made by tenants, who have 
 stated that they paid rent to particular persons. In these cases, the decla- 
 rations have been considered as made against interest, inasmuch as possession 
 is prima facie evidence of a seizin in fee, and, therefore, the declaration of 
 the possessor, that he is tenant to another. Makes against his interest. (5) 
 And the rule is, that all statements by a deceased person, while in possession 
 of property, are in themselves original, and not merely secondary evidence, 
 if their eflFect would be to cut down his interest in it. (6) Such decla- 
 *312 rations are admissible, (7) not only against *all parties claiming under 
 the declarant, but also as evidence for or against strangers. (8) 
 
 Upon a question whether the place in dispute was parcel of a particular 
 tenement, the declarations of deceased persons, during their occupation of 
 the place in dispute, that they paid rent for the premises to a particular 
 individual, were held to be receivable in evidence. (9) 
 
 In an action of ejectment,(10) brought for the recovery of a garden, where 
 the question was, whether the ground in dispute was parcel of certain free- 
 in Harrison v. Blades, 3 Camp. 453. Tlie principal cases respecting tithe receipts are Lake 
 V. Skinner, Gwill, 1931 ; S. C, 8 E. & Y. 976 ; Jones v. Carrington, 1 C. & P. 327, 329, 497 ; 
 Ekins V. Dormer, 3 Atk. 534 ; Chapman v. Smith, 2 Ves. 511 ; White v. Lisle, 4 Madd. 
 214 ; Duffield v. Orrel, 7 Price, 324 ; Deacle v. Hancock, M'Clel. 18 ; Taylor v. Fox, 4 
 Wood, 322 ; Chapman v. Smith, 2 E. & Y. 141. On discrepancies . between early and late 
 receipts, see Manby v. Lodge, 9 Price, 231 ; on receipts of churchwardens for a tributary 
 modus, see Atkins v. Drake, 1 M'Clel. & Y. 217. 
 
 (1) Plaxton V. Dare, 10 B. & C. 17. Vide Id., as to the necessity of proving payment in 
 such a case. 
 
 (2) See the cases collected in the note to Barker v. Eay, 2 Russ. 67. See also the next 
 section for cases lespecting indorsements of payment of interest upon bonds and notes. 
 
 (3) Ivat V. Finch, 1 Taunt. 142. 
 
 (4) Haddow v. Parry, 8 Taunt. 303. In general, an invoice is only evidence against 
 parties privy to the contents. Mendham v. Thompsoil, 1 Stark. E. 316 ; Dicken v. Lodge, 
 Id. 226. 
 
 The master of a vessel, acting within the scope of his authority, binds the owner, as an 
 agent binds his principal : his contracts are those of the owner, as well as his own. In 
 other words, under certain circumstances, he has power to make contracts in relation to 
 freight, binding the owners (Edwards on Bailm, 439, 440) ; and in such cases, his acts may 
 be proved as a part of the res gestm. 4 Wend. 394. 
 
 (5) By Mansfield, C. J., in Peaceable v. Watson, 4 Taunt. 16. See also Orease v. Barrett, 
 1 C. M. & R. 931. 
 
 (6) Per Oimarn, 16 M. & W. 514. 
 
 (7) See Doe d. Human v. Pettett, 5 B. & A. 223 ; Doe d. Manten v. Austin, 9 Bing. 41 ; 
 Trimleston (Lord) v. Kemmis, 9 CI. & Pin. 780, 784, 785. 
 
 Declarations of a party in possession are evidence against those claiming under him, on 
 the ground that the latter stands in the place of the former, having taken the estate with 
 its burdens (St. Clair's Heirs v. Shale, 20 Penn. State R. 105 ; Alden v. Grove, 18 Id. 377) ; 
 but are not evidence in favor of the party deriving title from him. Smith v. Powers, 15 
 N. Hamp. 546 ; Masters v. Vamer, 5 Qratt. 168. See ante, p. 305, note. 
 
 (8) See Doe d. Baggaley v. Jones, 1 Camp. 367 ; Peaceable v. Watson, 4 Taunt. 16 ; 
 Came v. Nicoll, 1 N. C. 430 ; Doe d. Daniel v. Coulthred, 7 A. & E. 285. 
 
 (9) Davies v. Pierce, 2 T. R. 53. 
 
 (10) Doe d. Baggaley v. Jones, 1 Camp. 367. 
 
254 Mseeption, when against Interest [ch. viii. 
 
 hold property, or of a certain copyhold tenement, a paper signed by a 
 deceased owner of the copyhold tenement (who was also in the occupation 
 of the ground in dispute), in which paper he stated that no part of the 
 garden was copyhold, and that he paid rent for it, was held to he admissible 
 evidence to prove that the garden was not copyhold. Lord EUenborough, 
 C. J., observed that the representation was against the interest of the maker 
 of it, as he charged himself with the payment of rent, to which he would 
 not have been liable, had the garden been parcel of his own tenement. 
 
 In the case of Barker v. Ray,(l) the declarations of a wife during cover- 
 ture were tendered in evidence, after the death of her husband ; they were 
 to the effect that her husband was not seized in fee of certain premises in 
 dispute, of which he was then in possession ; and that upon a certain event 
 they were to go over to another branch of the family. The declarations 
 were rejected at Nisi Prius, and it was contended, upon appeal to the Lord 
 Chancellor, that the declarations were against interest, as their tendency, 
 by showing that the husband was not seized in fee, was to prejudice any 
 claim that the wife might make to dower. The Lord Chancellor refused a 
 new trial, not expressing any decided opinion as to the admissibility of the 
 evidence. 
 
 Particulars of estate recognized hy tenant for life.. Upon a question 
 whether the lease of a tenant for life, having a limited power of leasing, was 
 void, in consequence of the ancient rent not being reserved, the particulars 
 of a certain" estate were received in evidence under the following circum- 
 stances. The contents of the paper containing the particulars showed, that 
 it had been written by a person having an intimate knowledge of the prop- 
 erty in question, and who was in the confidential employ of the person to 
 whom the paper was addressed. The paper was in some degree recognized 
 as authentic by the person to whom it was addressed, by his indorsement 
 written upon it, " a particular of my estate in Cornwall." It showed 
 *313 the existing rent of a particular *tenement, the ancient rent of which 
 was the subject in dispute. The paper was addressed to the person 
 who was tenant for life of the property with a leasing power upon condition 
 of reserving the ancient rent, being the like power to that under which the 
 lease in question had been made. The paper was preserved among the muni- 
 ments of the estate by the person to whom it was addressed, and from 
 him it came to the tenant for life whose lease was in question, and upon his 
 death it passed with the other muniments of the estate to the succeeding 
 proprietor, who questioned the validity of the lease. Lord EUenborough, 
 C. J., in delivering the judgment of the court, said, the contents of the 
 paper were adverse to the tenant for life to whom it was addressed, and 
 who had authenticated it, and preserved it among his muniments, — for it 
 diminished his interest in the renewal, in the same proportion as it r.aised 
 the rent to be reserved, — and it could not have been evidence in his favor ; 
 he could not, therefore, have had any undue motive for preserving it ; con- 
 sequently it was proper evidence, to be left to the jury, of the amount of the 
 ancient rent reserved. (2) 
 
 A declaration by a party in possession, that his interest was for his own 
 life only, would be primary evidence that it ceased to exist at his death ; 
 but it would not be so, if he merely declared that he held " for life interest," 
 that statement being consistent with one or more life interests coming into 
 existence after his death ; and it does not therefore necessarily admit, that 
 the right of possession would immediately at his death accrue to the rever- 
 sioner. (3) 
 
 (1) 2 Rubs. 77. 
 
 (2) Roe d. Brune v. Rawlins, 7 East, 279. 
 
 (3) Doe d. Welsh v. Langfield, 16 M. & W. 497. 
 
SEC. vir.J Or in the Course of Duty. 255 
 
 Proof of occupation. It seems necessary, in order to render admissible the 
 declaration of a deceased person, as being an occupier of land, to prove 
 the fact of his ocQupation at the time the declaration was made ; it is not 
 enough that the declaration purport to be against the interest of the maker. 
 (1) But slight evidence (as of felling timber) has been held sufficient. (2) 
 
 The declarations of a person who has parted with his interest in land (as 
 by executing a settlement), cannot therefore be adduced for the purpose of 
 impairing the rights of persons acquired., under the settlement, merely 
 because they affect the title of the land (3) " II; is clear," said Lord 
 Denman, C. J., " that a person who has parted with his interest in property 
 is not to divest the right of another claiming under Mm, by any statement 
 
 which he may choose to make." (4) 
 *314 *In the case of Ivat v. Finch,(5) it has been seen that a declaration 
 
 (1) Crease v. Barrett, 1 C, M. & R. 931. 
 
 (2) Doe d. Stansbury v. Arkwright, 5 C. & P. 575. 
 
 (3) Doe d. Sweetland v. Webber, 1 A. & E. 733. 
 
 (4) 1 A. & E. 740. See Roberts v. Justice, 1 Car. & K. 93 fS Bosw. 102. 
 
 (5) 1 Taunt. 142 ; Supra, p, 311. 
 
 Note 104. — This case of Ivat v. Finch suggests another class of hearsay, admissible 
 upon the sole ground that it emanates from the owner of property at the time, and would 
 therefore be evidence against him, were he the immediate party to the suit. His estate 
 or interest in the same property, afterwards coming to another, by descent, devise, right of 
 representation, sale, or assignment, in a word, by any kind of transfer, whether it be the 
 act of law or the act of the parties, whether the subject of the transfer be real or personal 
 estate, corporeal or incorporeal, choses in possession or chosefl in action, the successor is 
 said to claim under the former owner ; and whatever he may have said affecting his own 
 rights, before departing with his interest, is evidence equally admissible against his successor , 
 claiming from him, either immediately or remotely. And in this instance, it makes no 
 difference whether the declarant be alive or dead ; for though he be a competent witness, 
 and present in court, his admissions are receivable. This doctrine proceeds upon the idea 
 that the present claimant stands in the place of the person from whom his title is derived ; 
 has taken it cum onere ; and as the predecessor might have taken a qualified right, or 
 sold, charged, restricted or modified an absolute' right, and as he might furnish all the 
 necessary evidence to show its state in his own hands, the law will not allow third persons 
 to be deprived of that evidence by any act of transferring the right to another. Declara- 
 tions made by the predecessor are a part of the res gestce, whether accompanied with acts 
 of possession or forbearance, so much so, indeed, that, as we saw ante note 81, p. 188, 
 et aeq., they might for many purposes be evidence in his oSvn favor to fortify his claim ; 
 but, above all, to weaken or contract it. The extent of this doctrine will, however, be 
 better understood by a leading English case decided in the King's Bench in 1812. The 
 action was debt, by the executors of Earl Dartmouth against the defendant, as owner of a 
 fann in Batley parish, for not setting out the tenth of the hay grown on the farm as the 
 tithe belonging to the plaintiffs ; and the question of course was : 1. Whether the farm 
 was charged with the tithe ; and 2. Whether it was due to the plaintifis' testator. The 
 defendant purchased the farm of one Leathley ; and while he was in possession, and before 
 he sold to the defendant, the vicar of Batley had claimed that tlie tithe of this farm was 
 due to him, and filed a bill in equity against Leathley to enforce the claim. Leathley 
 answered, denying that the tithe belonged to the vicar, and insisting that it was due to the 
 plaintiffs' testator. Here the chancery cause stopped, and then Leathley sold to the defend- 
 ant. On the trial of the new action against the defendant, the plaintiffs offered in 
 evidence the confessions of Leathley in Ms answer. They were objected to as res inter 
 eUioa acta, but received by Thompson, B., at the circuit, where the verdict being for the 
 plaintiffs, a motion was made by the defendant for a new trial, mainly on the objection to 
 the answer. The motion was denied. Lord EUenborough, said : " It appears to me that 
 this was not res inter alios acta, but inter eosdem acta, and was not only evidence, but 
 strong evidence against the defendant, who stood in the same place by derivation oi 
 title and by legal obligation as Leathley ; and Leathley, upon his oath, in a suit against 
 him by the vicar, has declared that the tithe is due to the rector and not to the vicar ; and 
 now that same person, in effect, is deraigning the tithe of the rector in favor of the 
 vicar. The reading of his answer, therefore, operates as a contradiction to him." Lady 
 Dartmouth v. Roberts, 16 East, 544. The other judges expressly concurred. in the same 
 view. See a similar view of the question, a few years before, by the Supreme Court of 
 New York in Jackson ex dem. Griswold v. Bard, stated infra. In a late case, Conkling, J., 
 on deciding that such an answermade by S., the tenant in fee, admitting a resulting trust in 
 the land, was receivable to charge such trust upon the same land in the hands of the 
 
 tfendant, who derived title from S., remarked : " I understand it to be a settled rule 
 
 d|fe: 
 
256 Declarations by Owner [ch. viii. 
 
 that the declarations of a tenant in possession adverse to his title, and relative to facts 
 ■which may be proved by parol, are evidence, not only against himself, but also against 
 those claiming by subsequent conveyance under him." In Bradstreet v. Huntington, 
 tr. S. C. C. North. Dist. N. Y., May term, 1834, Pamphlet, p. 31. That an answer, made 
 by the grantor before the date of the deed, shall be evidence as an admission against 
 the grantee, though the answer was made at the sviit of one totally discoimected 
 *315 *with the plaintiff in the suit wherein the answer is offered, was also held in Bees 
 v. Lawless, 4 Litt. 218, 319. 
 
 We propose to consider and exemplify this doctrine, first in its application to real, and 
 seeondly, to personal property. iA 
 
 Mrst, in its application to real estate. 
 
 1. The declarations of the ancestor are evidence against the heir. This was allowed 
 on a question of boundary. The ancestor's admissions, while in possession, that the land 
 was limited to a certain line, were received against the heir in ejectment by him. Jack- 
 son ex dem. M'Donald v. M'Call, 10 John. Eep. 377. So on a bill filed against the heir to 
 enforce the specific performance of a contract, alleged to have been made by his ancestor, 
 for a sale of the land, his admissions are receivable that he made the contract. Bassler 
 V. Niesly, 8 Serg. & Eawle, 853, 354. And the admissions of the ancestor of the defend- 
 ant's landlord were held evidence against the defendant ; his landlord claiming as heir of 
 that ancestor, and having as such, demised to the defendant. Morris' Lessee v. Tanderen, 
 1 Dall. 64. 'The declarations of the ancestor were received against the heir, to show the 
 contents of a deed given by the ancestor, conveying, away the premises, the loss of 
 the deed being first shown. Allen's Lessee v. Parish, 3 Hamm. Rep. 107, 111. And, on a 
 question whether the plaintiff was bound by prescription to maintain a partition fence 
 between himself and the defendants, evidence was received in behalf of the latter without 
 objection, that fifty-six years before, the ancestor, under whom the plaintiff claimed, then 
 being owner of the land, said that himself and his ancestors had always maintained the 
 fence. Binney v. The Proprietors, &c., of Hull, 3 Pick. 503, 504, 505. On trial of a peti- 
 tion of freedom by negro, who claims emancipation, in right of and as under a free 
 ancestor, the declarations of the ancestor, as that the petitioner was a slave, are evidence 
 against him. Walkup v. Pratt, 5 Har. & John. 51, 58. 
 
 2. As between devisor and devisee. The latter claiming under the former, it would 
 seem to follow that all those circuriastances resting in parol, and usually examined on viva 
 voce testimony, calculated to invalidate the will, might equally be shown by the declara^ 
 tions of the devisor at any tiipe. Among these are mental alienation, fraud, duress, 
 undue infiuence, &c. Yet, it is not to be disguised that there is a considerable weight of 
 authority limiting such evidence to a time anterior to or at the execution of the will. If 
 after, it is considered by several courts as contravening the statute regulating the solem- 
 nities required in the revocation of wills. A strong case for receiving such evidence came 
 before the Supreme Court of New York, in 1806. In ejectment the lessors of the plaintiff 
 claimed as heirs of K., and the defendant claimed under his will. The plaintiff gave evi- 
 dence tending strongly to show threats and duress in obtaining the will by the defendant 
 K.'s second wife, and offered to follow this up with the testator's declarations — some of 
 them made in extremis — that threats and duress had been exerted upon him, by means 
 of which the will was obtained. Held by three judges against two that the evidence was 
 inadmissible. Jackson ex dem. Coe et al. v. Kniffen, 2 John. Eep. 81. Thompson, J., 
 delivered the leading opinion, and which doubtless contains the only argument upon 
 which the decision can be rested. " It could not," says the learned judge, •' if^laced in 
 the strongest possible terms, amount to a revocation without a direct violation of the 
 statute, which declares that no will (of land) shall be revoked or altered except by writing, 
 executed with all the requisites of a will, or by canceling the same. If these declarations 
 were not to operate as a revocation, I am at a loss to see in what manner they could affect 
 the will. To say that they were proper, in order to show that the Instrument in question 
 was not duly executed, by reason of its having been signed under duress, is assuming the 
 very point which was to be proved." Kent, C. J., and Livingston, J., concurred ; the latter 
 addressing himself mainly to the point that the declarations, being in articulo mortis, 
 could add nothing to the argument for their admissibility. Spencer and Tompkins, J's, 
 dissented ; and their reasoning is very strong, both upon principle and authority. It is 
 cl^ar, as they insist, that the will was ambulatory till death ; and the defendant had no 
 vested right to be overreached by the proposed declaration. She claimed under the 
 testator, and within almost all the cases was bound to abide his declarations. Waiving 
 the inquiry whether the declaration was admissible, as being made in extremis, the 
 rule that I am liable to be affected by the declaration of one who conveys to 
 me, made before my right vests, is at this day sustained by a force of authority 
 not to be resisted. The argument advanced, that the declaration was in the 
 
 nature of testimony to establish a revocation, and so would violate the Statute 
 *316 *of Frauds, would preclude all evidence of duress or undue influence, which is cer- 
 tainly a very common head of objection against wills. The objection that such 
 evidence contravenes the Statute of Frauds would apply equally to a deed of lands. Yet, 
 can it be doubted that a grantor declaring, before the title to the land passes by his de^d. 
 
SEC. Til.] JBind the Heir or Devisee. 257 
 
 that he shall convey (but it is to save his life, threatened by the grantee), would be evi- 
 dence to affect the latter? You cannot, by parol, contradict a bond or mortgage, yet your 
 declaration that your bond or mortgage was given on a usurious consideration, would be 
 a most fatal one for your subsequent assignee. If the fact of duress or undue influence 
 be provable, then every kind of proof adapted to its establishment is competent, and goes 
 for what it is worth. Such an objection was not even thought of in Nelson v. Oldfield, 
 2 Vern. 76. And see Reel's Ex'r v. Heel, and Howell v. Barden, infra. Declarations 
 strikingly similar were once received and acted upon in Pennsylvania, in aid of other proof, 
 to establish the mental imbecility of the testator, and to show that this was wrought upon 
 by his wife and father-in-law. " The declaration of the testator," says Duncan, J., " that 
 his wife and father plagued him to go to Lebanon ; that they wanted him to give her all, 
 or he would have no rest ; that he did not want to go to Lebanon " — this would be evi- 
 dence of a weak mind, operated upon by excessive and undue importunity. It forms no 
 objection to it that these murmurs of a weak mjnd were made in the absence of the devisee. 
 We should be surprised to hear that they were made in the presence of that devisee, an 
 importunate and teasing wife. Bambler v. Tryon, 7 Serg. & Rawle, 90, 93, 94. The 
 declarations of a testator are also receivable to support or repel the presumption that a 
 will executed by him, but not found at his death, had been destroyed by him animo revo- 
 eandi. Betts v. Jackson ex dem. Brown. 6 Wend. 173, on error, per Walworth, C. Such 
 declarations, however, are not incompatible with Jackson v. Kniffen, supra. In Rambler 
 v. Tryon they were evidently admissible, as a part of the res gestm, to show the state of 
 the testator's mind ; and in Betts v. Jackson, as developing an intent from the actual or 
 apparent destruction of the will. And such declarations have been received upon this 
 distinction in other cases. Thus, where the testatrix had devised the greater share of her 
 property away from her relations and friends to the Hadlyme Presbyterian Society, in order 
 to show importunity and undue influence, her declarations, made about the time of exe- 
 cuting the will (whether before or after did not appear), were given in evidence, viz ; that 
 the Hadlyme Society, or the Presbyterians, were about her as thick as bees, to get her prop- 
 erty ; and held that these declarations might be received between them and the heirs, as 
 evidence to show her state of mind, as sane or insane, but not of the facts stated. Com- 
 stock V. Hadlyme, 8 Conn. Rep. 254, A. D. 1830. In another case, to show that the tfestator 
 was fraudulently prevented from revoking his will, his declarations to that effect were 
 offered in two classes r 1. Those made before and at the time of making the will, and 
 immediately afterwards ; 3. Others made afterwards, at several times during the seven 
 last years of his life. Story, J. Those " made before and at the execution " are admissible ; 
 and so those " made after, if so near the execution as to be considered a part of the rea 
 gestm, or necessarily connected with it. But I shall not admit any other subsequent 
 declarations, because they are of the nature of hearsay, and have never been held admis- 
 sible in any case within my recollection." Smith v. Penner, 1 Gallison, 170, 171, 172, A. 
 D. 1812. In another case, Washington and Pennington, J's, repudiated evidence to sus- 
 tain the capacity of the testator, that his declarations had often expressed an intention 
 to dispose of his property according to the will. Tliis was offered to infer that a smaller 
 grade of memory would be required at the time, if the disposition was consistent with a 
 previous and long settled purpose. Washington, 3., said : If the testimony were received 
 at all, the otlier party might show opposing declarations ; and " thus a door would be 
 opened to an inquiry in no respect pertinent to the main subject of investigation, but 
 mischievously calculated to perplex and mislead the jury." 'He admitted that such evi- 
 dence had been given in cases read by counsel, but it was without Objection. Den ex 
 dem. Stevens v. Van Cleve, 4 Wash. C. C. Rep. 262, 265, 266, A. D. 1832. The difficulty 
 seems to lie in acting upon the distinction between declarations going to develop the 
 operations of the mind and those containing merely the assertion of a distinct fact. The 
 former are admissible ; the latter not. The doctrine was much considered in a recent 
 case, where the will, executed by a man of competent understanding, was sought to be 
 impeached by his declarations, ma,de before and after its execution, that he intended 
 differently, but was importuned by his wife ; and that the will was made through much 
 
 importunity and fear of violence from her. These declarations being received in 
 *317 evidence, came up on error *brought. None of the above cases were cited, except 
 
 Nelson v. Oldfield ; but the j udgment below was reversed, on the ground that it 
 was against the spirit of the Statute of Revocations. Moritz v. Brough, 16 Serg. & Rawle^ 
 403, A. D. 1837. This subject has also recently been somewhat examined by the C. P. in 
 England, A. D. 1829. In a writ of entry the demandants claimed as heirs, and the defend- 
 ant as devisee of H. S. The demandants gave evidence to show that the will, at the 
 time, was executed in presence of only two witnesses, three being necessary, and that 
 another was fraudulently added after the devisor's death. This was answered by proving 
 the high character of the attorney who drew and witnessed the will. The demandants 
 then offered to show the devisor's written declarations, that the defendant should not have 
 his property, and had got him to sign a will which was not worth a farthing. Held inad- 
 missible, as contravening the spirit of the Statute of Wills. Provis v. Reed, 5 Bing. 435. 
 It is proper to say of Comstock v. Hadlyme {supra), which was decided by the Supreme 
 Court of Connecticut, with all the other cases above cited before them, that some general 
 Vol. I. 33 
 
258 Declanitions against Interest, [sec. vm. 
 
 expressions fell from the court to restrict this kind of evidence within narrower limits 
 than the case itself required, and probably than that learned court would itself deem 
 necessary on a question directly before them. As to declarations of a testator cotempora- 
 neous with his will, to create a trust in the devisee, see 1 Watt's Rep. 163. 
 
 Such has been the course of decision against this sort of evidence. In 1831, fifteen 
 years after Jackson ex dem. Coe v. Kniffen, and nine years after Smith v. Fenner, the 
 question involved in these cases was presented to the Supreme Court of North Carolina, 
 who expressly adopted the opinions of Spencer and Tompkins, J's, in the first case, thus 
 repudiating the decisions of both -the Supreme Court of New York and Judge Story. 
 Both these cases were before them, appear to have been some time in the hands of 
 counsel, and were followed by the judge at Nisi Prius. At the bar, great research and 
 high forensic talent were exhibited in the discussion, both upon principle and authority, 
 the main ground for the evidence being the admitted one of which we are treating, that 
 declarations made by the owner, follow from him to all who claim under him, along with 
 descents, devises or sales. The evidence proposed was of repeated declarations made 
 after the execution of the will, and consisted in stating its contents to be materially and 
 utterly different from what they were. They were offered in connection with conflicting 
 testimony upon the point of testamentary capacity. The evidence was resisted as in New 
 York, among other arguments, on the ground that it would violate the spirit of the 
 North Carolina Statute of Revocations, which also required certain specified solemnities. 
 On both sides, the English authorities then extant, were fully cited and applied. On the 
 whole, the arguments were learned and useful, and must have saved the judges great 
 labor upon this vexed controversy. The conclusion of the court is strongly expressed : 
 " To reject the declarations of the only person having a vested interest, and who was 
 interested to declare the truth, whose fiat gave existence to the will, and whose fiat could 
 destroy, and in doing the one or the other, could interfere with the rights of no one, 
 iuvolve.5 almost an absurdity ; and (with due deference to the opinions of those who have 
 decided the contrary, we say) not upon the ground of their being part of the res gest(e, for 
 whether they accompany an act or not, whether made long before or long after making 
 the will, is entirely immaterial as to their competency. Those circumstances only go to 
 their weight of credit, with the tribunal which is to try the fact." After the further 
 examination of the question, they add ; " For these reasons, and those given by Judge 
 Spencer, who, together with Judge Tompkins, dissented from the opinion of the court, 
 and because of the doubt which rested for some time on Judge Livingston's mind, we 
 think we are bound to disregard the opinion of a majority of the court in 2 John. 31, and 
 also the case in 1 Gall. 170." Reel's Ex'rs v. Reel, 1 Hawks, 347, 268, 369. Again, in 
 1832, on trial of an issue of demsa/ait ml non, Judge Martin, at Nisi Prius, rejected the 
 testator's declarations, made after the execution of the will, and tending to show that it 
 was obtained by fraud and undue influence of the principal legatee. On moving for a 
 new trial, the question was treated as open and unconcluded by Reel v. Reel, because 
 there the testator died before the North Carolina Statute of Revocations passed, which 
 was not till 1819. The statute being before the former decision, though after the will, was 
 a distinction not adverted to. Provis v. Reed (which we stated above), was now cited by 
 counsel, in addition to Jackson v. Kniffen, and Smith v. Fenner, as an authority for 
 excluding the proof The court declared that they had " deliberately considered the 
 
 question anew ;" and concluded that the object of the statute is an act of revocation, 
 *318 going " wholly to chsinge the mind of the testator, and not to the *original want 
 
 of the animus disponendi." The proof offered was relevant to the latter point. 
 The objection that it may mislead the mind of the jury, is applicable to all evidence 
 submitted to them, especially if it be competent for one purpose and not for another. 
 There is no instance in which the legitimate and illegitimate purposes of introducing 
 evidence are more distinct or more obvious to a common understanding, than the one 
 before us. The one is to determine whether a will was made, and fairly made : the other, 
 whether the operation of such an instrument, not destroyed, has been recalled. The 
 court inquire as to the application and force of Provis v. Reed, and insist that the statute, 
 in leaving great latitude of evidence upon the point of original testamentary capacity, 
 adopts the only practicable legislation which the nature of the subject admits ; and they 
 demonstrate the general safety there is in receiving such evidence, by presenting the 
 ordinary tests of strength or fallacy. We refer particularly to the perspicuous and 
 masterly opinion of Ruffin, J., with whom Henderson, C. J., concurred in more general 
 terms. Both adhered to the opinion in Reel v. Keel. Daniel J., dissented, mainly on the 
 three authorities of Jackson v. Kniffen, Smith v. Fenner, and Provis v. Reed. Howell v. 
 Barden, 3 Dev. 443, 444 to 451. A direct act of revocation, and avowedly such, of course 
 cannot be by parol. Allen v. Huff, 1 Yerg. 404. 
 
 _ 3. The declarations of the grantor, bargainor, vendor, &c., of real estate, such declara- 
 tions being made at any time before the act of granting, bargaining, vending, &c., are 
 admissible against the immediate grantee, bargainee, vendee, &c., and all who claim more 
 remotely under the same title. This has been hoi den of the grantor's declarations tending 
 to show that the deed was a fraud upon creditors (Bridge v. Eggleston, 14 Mass. Rep. 245) ; 
 such as that he expected to be ruined, thought it best to pay as few of his debts as possi- 
 
SEC. vn,] When aclmissible against Grantee or Vendee. 259 
 
 He, and intimating an intention to submit to imprisonment, pp. 346, 349. So the 
 admission of the debtor's grantee in possession, that he himself purchased with a view to 
 defraud creditors, was received against his grantee, the admissions being made before the 
 date of the last deed. Norton v. Pettiboile, 7 Conn. Rep. 319. And per Daggett, J. : 
 " That such declarations so made are admissible, I had supposed to have been too long 
 • and too well settled to be doubted. It has been so ruled more than twenty times within 
 the last forty years. Declarations of a person while in possession of the premises, against 
 his title, are always admissible, not only against him, but against those who claim under 
 him," p. 333. And see per Gould, J., 3 Conn. Rep. 473, 473 ; per Buller, J., in Davies v. 
 Pierce, 3 T. R. 55 ; per Richardson, C. J., in Downs v. Lyman, 3 N. H. Rep. 487 ; per 
 Rogers, J., in Reed v. Dickey, 1 Watts' Rep. 154 ; and per Savage. C. J., in Jackson ex 
 dem. Titus v. Myers, 11 Wend. 536. In ejectment, the defendant claimed the locus in quo 
 under S , who claimed under a deed of the same premises from D., which the lessor of the 
 plaintiff insisted was ante-dated in order to overreach his mortgage of the same premises 
 against D. On the trial, the plaintiff was allowed to prove S.'s admissions made before 
 lie sold, and while he was in possession, that his deed had been ante-dated ; and other 
 expressions tending to show that. This was allowed, though it was objected that they 
 were the unsworn declarations of a third person. 'The court said, on motion for a new 
 trial ; " These declarations would have been good against S., and are also competent evi- 
 dence against all who claim under him. This principle has been repeatedly recognized 
 both in our own and the English courts." Jackson ex dem. Griswold v. Bard, 4 John. 
 Rep. 330. See post, p. 334, note. So a confession by the grantor that his warrant and 
 survey did not cover the land in question, made before he conveyed, was received against 
 the grantee. Weidman v. Kohr, 4 Serg. & Rawle, 174. So, where in an action for 
 obstructing water by a dam, the defendant who obtained his title fromCarr, who built the 
 dam, set up an adverse possession for fifteen years (the Conn. Stat, of Limitations), as his 
 defense, the plaintiff was allowed to show the declaration of Carr, before he conveyed, 
 that his holding was not adverse. Betts v. Davenport, 3 Conn, Rep. 286. So the plaintiff in 
 ejectment was allowed to prove that the defendant's grantor, before he conveyed, showed 
 a certain maple tree as his place of beginning. Townsend v. Johnson, 3 Penningt. Rep. 
 706. At Nisi Piius, in ejectment, the defendant claimed by a deed from Hughey. A 
 serious question was made upon the evidence, whether this deed had ever been delivered 
 to the defendant • and, among other evidence, the plaintiff offered to prove that Hughey 
 acknowledged, before he conveyed to the defendant, that he had not paid the purchase 
 money ; and had no title. Judge Hall rejected the evidence, because it would affect a 
 third person. But the reporter thought this a hasty decision. He says : " An admission 
 
 made relative to the land in question, by one who afterwaids sells to another, is 
 *819 certainly as much evidence against the *puxchaser as it was against the vendor 
 
 before the sale. Otherwise the person who was entitled to the evidence (which 
 might be decisive evidence too) might be wholly deprived of it by the alienation of the 
 owner." He puts several instances by way of illustration. He says : " Nothing is more 
 common in our practice, than to give evidence (with respect to tjie extent of boundaries) 
 of what the foi-mer owner said, if it operates against him." Clark v. Arnold, 8 Hayw, 287, 
 288. Accordingly, where, in ejectment, the lessors (3f the plaintiff 'claimed under Van 
 Schaick, and a person under whom the defendant claimed, through a number of successive 
 purchasers by deed in fee, had acknowledged, while in possession, and before he had con- 
 veyed, that he held by lease from Van Schaick, the court said that the defendant was as 
 much affected by the acts and acknowledgments of his predecessors, as if they were his 
 own ; and the acknowledgment was received as available against him in that view. 
 Jackson ex dem. Van Schaick v. Davis, 5 Cowen's Rep. 123, 139. And see Simmons v. Par- 
 sons, 1 Bail. Rep. 63. So where the person under whom the defendant claimed had 
 acknowledged that he went into possession under the lessors of the plaintiff (Jackson ex 
 dem. Van Duzen v. Scissam, 3 John. Rep. 499) ; or admitted the plaintiff's title ; and 
 requested leave to remain. Andrew's Lessee v. Fleming, 3 Dall. 93. In chancery a bill 
 was filed by a csalwi que trust to set aside a sale of his lands by his trustee to one Godman, 
 who took a deed, as was alleged, for his, the trustee's benefit. He afterwards conveyed 
 to the trustee. Held that Godman's-declarations that he purchased for the trustee's bene- 
 fit, made before the deed was executed from Godman to the trustee, were admissible 
 against the latter. The court say, by Buchanan, J., the declarations would have been 
 good againstjhim (Godman) " as admissions respecting his title, and are competent evidence 
 against those claiming under him, who stand in his place, and hold the land subject to 
 any imperfection of title which attended it in his hands." Dorsey v. Dorsey, 3 Harr. & 
 John. Rep. 410, 436. In a late case, the declaration of one holding the legal estate by a 
 deed in fee, that he was in truth a mere trustee for another, who had paid the purchase 
 money, the declaration being made before such holder of the legal estate had conveyed to 
 a third, was offered in evidence against his grantee, the legal owner being in full life and 
 capable of being examined as a witness, and within the reach of process. The question 
 was very fully discussed whether he must not be produced and sworn ; but held not ; that 
 his declarations were admissible on the general principle that the admissions of the 
 grantor are equally admissible against the grantee as they would be against himself. 
 
260 Declarations against Interest, [ch. Tin. 
 
 Qibblehouse v. Strong, 3 Rawle, 437. And see M'Pheake v. HutcTunson, 5 Serg. & Bawle, 
 395. See also Sims v. Meaclium, 1 Bail. Rep. 101, and Patton v. Goldsborough, 9 Serg. & 
 Eawle, 47, 53, 54, 55. So recitals in a deed to A., are evidence against a subsequent 
 purchaser from A.'s grantor. Carver v. Jackson, ex dem Astor, 4 Pet. 1 ; Crane v. Morris' 
 Lessee, 6 Id. 598. The declarations of a landlord, while in possession, are evidence against 
 his tenant who comes in after the declarations made. Jackson ex dem. Titus v. Myers, 
 11 Wend. 533,. 536. And so, if before, it appearing that the landlord had placed him 
 under a bond of indemnity against the claim of a third person. Marley v. Rogers, 5 Yerg. 
 217,220. 
 
 It is sometimes a matter of nicety to determine whether the declarant' and the party 
 shall be said to hold the relation of predecessor and successor, so as to make the admis- 
 sions of the former evidence against the latter. This difficulty has arisen mainly under 
 the registry acts. In a writ of entry for White farm, both parties claiming under a deed 
 from S., the d«ed by which the demandant claimed being the oldest, but not recorded. 
 The.tenant (defendant), however, purchased with actual notice of the first deed. This 
 being shown, and that the grantor had fraudulently obtained and suppressed the first 
 deed, held that his declarations were admissible to prove its existence and contents, as 
 coming from one under whom the tenant claimed. Davis v. Spooner, 3 Pick., 284. In 
 ejectment the plaintiff claimed the locus in quo under G., by deed, in which G. acknowl- 
 edged payinent of the consideration in the usual form. Before this, G. had given V. a 
 mortgage of the same premises ; but it was not registered when V. conveyed, nor had his 
 grantee any notice. It being material to show that G.'s grantee paid the full considera- 
 tion, held that the acknowledgment in the deed was evidence pf this in favor of G.'s 
 grantee, and all claiming under him, and that, too, as against V., the holder of the unreg- 
 istered mortgage. Jackson ex dem. Rounds v. M'Chestney, 7 Cowen's Rep. 360. Minor 
 and Wright each had a separate mortgage from the same mortgagor on the same premises. 
 Minor's being recorded a few minutes before Wright's. Minor then admitted in 
 *320 writing that this was a mistake, and that *neither mortgage had preference. Then 
 the plaintiff acquired Minor's interest. Held that Minor's admission was evidence 
 against the plaintiff. Beers v. Hawley, 2 Conn. R. 467. 
 
 To warrant an exclusion of these declarations as evidence against the successor, the 
 transfer must appear to have been complete before they were made ; and accordingly, 
 though the declarations were made after the date and signing of the deed, yet, being 
 before the grantee's acceptance of it, they were received to affect him with fraud against 
 creditors. Denton v. Perry, 5 Verm. Rep. 382. (In an action brought to set aside a con- 
 veyance as fraudulent, the declarations of the grantor made after his grant, were proved 
 in evidence, under objections, to impeach his testimony ; and being thus proved in the 
 case the court gave effect to them as competent testimony to prove his fraudulent intent 
 in making the grant, as appeared by its opinion accompanying its decision ; and on appeal 
 the court did not consider the opinion evidence of the error which called for a reversal 
 of the j udgment on that ground ; Savage v. Murphy, 8 Bosw. 75. The decision assumes 
 the rule established in other cases, viz : that the declarations of the grantor made while 
 in possession are admissible ; Adams v. Davidson, 10 N. Y. 309 ; Hansell v. Bryan, 19 
 Georg. R. 167 ; Willis v. Farley, 3 Carr. & Payne, 395 ; ante, p. 198, 201, 206, and post, 
 p. 327, 494. In the case of a fraudulent combination between the grantor and grantee, 
 established by competent evidence, the declarations of the grantor may be proved as 
 against the grantee, though made after the conveyance ; and this rule applies to assign- 
 ments in trust for the benefit of creditors ; Cuyler v. McCartney, 83 Barb. 165. It is not 
 necessary that the assignee should harbor the intent to defraud, in order to render the 
 assignment void ; GriflBn v. Marquardt, 17 N. Y. 28.) 
 
 In Louisiana the vendor's admissions are received, even after the sale is fully consum- 
 mated, to affect him with the fraud, though it is held they shall not be extended to show 
 fraud in the vendee. The courts proceed on the ground that an intention to defraud must 
 be fixed on both, in order to make out such a case as shall nullify the transfer, and that 
 the vendor's declarations are pertinent to the scienter or intention in himself, though not 
 in the purchaser ; or, as Porter, J., expresses it, " the acts and declarations of the first are 
 surely as good and as high evidence as any other that can be given, to prove fraud in 
 him. They are of course not sufficient to show that the vendee acted from the same 
 motive." Quidry v. Grivot. 2 Mart. Lou. Rep. (N. S.) 13, 15, A. D. 1823. The same learned 
 court which made this decision had several years before, rejected an offer to prove such 
 declarations of the debtor, even to show that he was in debt and insolvent. And they 
 would not allow this, though the vendor had remained in possession of the property, up 
 to the time of the declarations ; thus being more strict, as we shall see by Willies v. 
 Farley, and other cases cited infra, than even the English or other American courts. 
 Highlander v. Fhike, 5 M. L. (1st S.), 442, 449, A. D. 1812. The court thus apparently 
 standing in confiict with itself, on a similar question afterward coming before them, in 
 1824, the year after the decision in Guidry v. Grivot, and the case of Highlander v. Fluke, 
 being cited, Martin, J., delivering the opinion of the court, remarked, that what was said 
 in the latter case must be taken with the qualification that the debtor's admissions of 
 insolvency were not to be taken as showing fraud in his vendee ; not as denying that they 
 
SBC. vn.] When admissible. 261 
 
 were receivable to prove fraud in tie vendor who made them. The case of 1824 was a 
 suit by the vendee of land, against a purchaser under a sherifTs sale, upon a.fi.fa. against 
 the vendor. The defendant set up the common defense of fraud against creditors, in the 
 first sale; and the acts and declarations of the vendors, after sale, were received against 
 the plaintiff. The court said, " There cannot be fraud in the vendee unless there be fraud 
 in the vendor. The defendants have, therefore, to establish the fraud of the latter. For 
 this purpose they gave evidence of the vendor's continued possession and contract of the 
 premises, his hiring and selling part of the property conveyed ; his acting and holding 
 himself out as the real owner of tlie premises. Fraud is seldom established by direct 
 evidence. The proof of it, in most cases, results from numerous grave and concordant 
 presumptions. For this purpose, the conduct of one of the parties and his declarations 
 are part rerum gestarum ; all proper evidence to establish fraud in him. They are not, 
 however, evidence of fraud in the vendee. The existence of creditors to be defrauded 
 may, and in many cases must be established by the admissions of the vendor, or by judg- 
 ments obtained against him, which are pri/ma facie, though not conclusive evidence 
 against the vendee." Martin v. Reeves, 3 Mart. Lou. Rep. (N, S.) 23. These cases in 
 Louisiana should be considered in connection with Willies v. Farley and others, cited 
 infra. The Louisiana cases are given here, because they mainly relate to fraudulent sales 
 of real estate. But two of them (Highlander v. Fluke and Martin v. Reeves) present the 
 very case in which such declarations are receivable by the other courts as evidence 
 directly against both vendor and vendee. That is to say, they are plain cases of posses- 
 sion by the vendor after Sale, and up to the time when his declarations were made. 
 These declarations are thus adducible as a part of the res gesta, as Martin, J., himself 
 remarks in the decision of 1824. How it may have been with Guidry v. Grivot, in respect 
 to the vendor's possession, the case does not state. If there was none, it certainly goes 
 farther against the vendee than any other adj udication. If fraud in the vendor were 
 essential, as Porter, J., observes, to avoid the conveyance, the vendee stands protected 
 until that fact is proved ; as completely so as if nothing were made out. He cannot be 
 touched, except by the declarations of a third person, who cares nothing for his rights. 
 That person may come into court, and, without oath, admit a fact which takes away the 
 vendee's farm. But, with deference, is it not a confounding of distinctions, to call such a 
 declaration proof even of intention in tlie vendor ? A concurrence of intention on his 
 part would be equally necessary to make out the sale. Would it therefore be com- 
 *321 petent for him to declare that he had *sold ? If such ex post facto declarations be 
 admissible, two concurring admissions of vendor and vendee would be sufficient to 
 overreach the rights of creditors or any third persons. In Watson v. Williams (1 Harp. 
 Rep. 447), the defendant offered a letter from one Smith, admitting a sale; but the judge 
 said Smith might as well have been brought into open court, to sign certificates, as the 
 exigencies of the defense might require. 1 Harp. 450. And see Robertson v. Crockett, 
 1 Yerg. 203. To hold the contrary would seem to be the substituting a naked declaration 
 for the fact which it declares to have existed. It may as well be false in stating a previous 
 intention, as in stating any other particular fact. It is not made before the sale, so as 
 to affect the vendee under the notion of privity ; nor at the sale, nor during possession, so 
 as to make a part of the res gestm; nor do we perceive how it can be taken from the 
 
 Another distinction has recently been held in favor of creditors ; that the recital in a 
 category of mere naked hearsay. 
 
 post-nuptial settlement, setting forth the consideration of the deed, though e\'idence 
 against others claiming under the settler, is not so against a creditor of the settler con- 
 testing the fairness and validity of the deed. Blow v. Maynard, 2 Leigh, 29. See also 
 Dwight V. Brown, 9 Conn. Rep. 83. 
 
 That the declarations of the grantor remaining in possession at the time, even though 
 after sale, are evidence against his vendee, especially to establish fraud in favor of his 
 creditors, we shall see infra, in connection with the same rule as applied to personal pro- 
 perty. Before such declaritions can be received, however, it must appear distinctly that 
 the declarant is an occupier at the tiine. Den ex dem. Pickett v. Pickett, 3 Dev. 6. 
 
 Very few cases conflict with the general doctrine which we have been considering. In 
 one it was held that the admission of usury by a mortgagee, though made before the 
 assignment, should not affect the assignee ; but the point passed very hastily, and has 
 evidently been since given up by the court who decided it, as wUl be seen by several 
 decisions supra. Appleton v. Boyd, 7 Mass. Rep. 131. And see Brindle v. M'llvaine, 10 
 Sergeant & Rawle, 282, 284, and Scott v, Coleman, 5 Litt. Rep. 349, that the admissions of 
 the assignor before assignment shall bind the assignee ; and jjo«<, in these notes, that an 
 admission, even after assignment, will affect the assignee, if^made before notice to the 
 debtor, and, by some strong authorities, even after notice. Clarke v. Waite (12 Mass. Rep. 
 439), which semb. denies admissions even before the deed, to affect the grantee, wag 
 reconsidered and qualified in 14 Mass. Rep. 351. In ejectment, the plaintiff claimed that a 
 mortgage given to the defendant by his father was a fraud on creditors, because the father 
 was not indebted to his son. Held, that the declarations of the father, though before the 
 mortgage given, that he was a debtor, were inadmissible evidence for the mortgagee, 
 though such declarations, at the time of a settlement and etriking a balance between 
 
262 Declarations against Interest, [ch. viii. , 
 
 them, would be admissible as a part of the res gestw. The plaintiff claimed by an attach- • 
 ment against the father and a sale of the premises in question, both being subsequent to ; 
 the mortgage. Cook v. Swan, 5 Com, Eep. 140. Here, both claiming under the father ; 
 and the plaintiff by a junior title, the case, in order to be consistent with other authorities,; 
 should have received any of the father's declarations made before the attachment levied. ,; 
 In another case, the creditors of an insolvent offered to impeach his deed to the defendant, 
 on the ground that just be.fore the execution of the deed, the insolvent had proposed to 
 another to make a fraudulent conveyance of the same premises to him, who directed the 
 insolvent to apply to the defendant. This was rejected as being res inter alios acta. 
 Beach v. Catlin, 4 Day, 384. The learned reader will perceive, that according to acknow- 
 ledged authority, even in the courts of the same state where this case was decided, the 
 declaration was res inter eosdem acta. In ejectment, the plaintiffs and defendants both 
 claimed under Anna French, a feme covert ; the former as heirs, the latter under a deed 
 executed by her and her husband. The plaintiffs offered to prove, by repeated declara- 
 tions of hers, both before and after the execution of the deed, but which were made in the 
 absence of her husband, that she was coerced to execute by the threats and maltreatment 
 of her husband. The court say : "It has been uniformly decided that the declarations of 
 the grantor, made when the grantee is not present, prior or subsequent to the execution 
 of the deed, cannot be admitted in evidence to invalidate the deed." Barrett v. French, 1 
 Conn. Rep. 354, 365. This was in 1815. A judge of the same court, fourteen years after, 
 we have seen supra, in Norton v. Pettibone, on Barrett v. French, and some other of the 
 above cases being cited to him, spoke of the opposite rule as too well settled to 
 *333 admit of question. It will be seen, before we *get through with real and personal, 
 property, that he was more than borne out in saying the contrary had been ruled 
 twenty times within the last forty years. 
 
 The following case is treated as an exception to the rule. In an action of debt, to 
 recover the statute penalty for maintenance in buying land of p. and his wife, while 
 they were out of possession, it was held that their admissions that they were so out of 
 possession, though made before sale to the defendant, they being alive and capable 
 of being produced, were inadmissible. The court admitted the rule, that the confessions of 
 a man are evidence in many cases against those who claim under him, but thought this 
 case did not come within the rule. Nichols v. Hotchkiss, 3 Day, 131. But quere. For 
 their admission of claimer or disclaimer before the sale, might form a material ingredient 
 in the question of possession. The admission seems, therefore, to have been a part of 
 the_res gestae. 
 
 All the cases agree that declarations, made by the person under whoin the party claims, 
 after the declarant has departed with his right, are utterly inadmissible to affect any one 
 claiming under him. Gray v. Harrison, 3 Hayw. 393 ; Weidman v. Kohr, 4 Serg. & Eawle, 
 174; Fatten v. Goldsborough, 9 Serg. & Rawle, 47, 53, 54, 55; Jackson ex dem. Watson 
 V. Cris, 11 John. Eep. 437; Chess v. Chess, 1 Pennsylv. Eep. 33. Thus declarations by 
 the grantor, that he had not made the deed, were rejected. Bartlett v. Delprat, 4 Mass. 
 Rep. 703. So the admission of a mortgagor that the money is unpaid, made after he has 
 assigned the equity of redemption, cannot be received against the assignee (Copp v. 
 Uphara, 3 N. H. Rep. 159) ; nor the admissions of the grantor that he had not taken the 
 incipient steps necessary to his title, the admissions being after he had conveyed to 
 the grantee (Packer's Lessee v. Gonsalus, 1 Serg. & Eawle, 536, 536, 539) ; nor to show in 
 what character the grantor held the land (Brindle v. M'llvaine, 9 Serg. & Eawle, 74, 77) ; 
 nor to show fraud in the deed as to creditors (Alexander v. Gould, 1 Mass. Eep. 165 ; 
 Clarke v. Waite, 13 Id. 439 ; Phoenix v. Ingraham's Assignees, 5 John Eep. 413, 415, 436) ; 
 even though they be sworn admissions in answer to a bill in chancery. Doyle v. Sleeper, 
 1 Dana's Kep. 531. The propriety of the testimony depends upon two matters ; first, that 
 the declarations were made while the declarant has an interest ; and secondly, that the 
 party to be affected claims under him. Per Rogers, J., in Eeed v. Dickey, 1 Watts' Eep. . 
 153, 154. Even if it be doubtful whether the declaration was before or after the deed, 
 they cannot be received. Stockett v. Watkins' Adm'rs, 3 Gill & John. 33S, 343, 344. An 
 exception is, as in case of a will supra, whore the subsequent declarations are resorted to 
 purely as indicative of the sanity or insanity of tlio grantor, the grant being impeached , 
 on tlie ground of insanity. Here, the declarations being relevant, though after the deed, 
 may be received. Chess v. Chess, 1 Penn. Eep. 33. 
 
 Secondly. The same rule, which we have considered in its application to real estate, , 
 extends to personal property, whether in possession or in action. The admissions or 
 declarations of the assignor, vendor or holder of personal property, made before the sale, > 
 assignmtnt, or other departure with his interest, are evidence against his vendee, assignee, 
 or other persons claiming under him, immediately or remotely, either by act and opera- 
 tion of law or by the acts of the parties. And his declarations with regard to his rights 
 and liabilities are, in like manner, evidence against any one coining, after such declara- 
 tions made, into his place, or representing him in resi^eot to such rights and liabilities. 
 
 1. By act and operation of law. The defendant claimed the goods by his marriage. 
 ■with N. In trover for goods the plaintiff was allowed to prove that, before the marriage, , 
 N., admitted the goods belonged to him, the plaintiff. This was received against tLe:j 
 
SEC. VII.] When admissible. 263 
 
 defendant, on the express ground that he claimed the goods under N. Waring v. War- 
 ren, 1 John. Rep. 840. The admission was assimilated by Spencer, J.,- to one made by 
 the vendor of real estate, which might be used against the vendee in ejectment. So, 
 where the defendant attached goods which had before been attached by the plaintiff, to 
 satisfy a note given him by the debtor, the defendant insisted that the note was given 
 to defraud him and other creditors. Held, that the debtor's admissions, that the note was 
 on a fair consideration, should be received against the defendant. And in this case, on 
 the construction of the statute which allowed the defense, such admissions were received, 
 though made after the defendant had commenced his suit by a levy. Strong v. Wheeler, 
 5 Pick. 410. So, the acknowledgments of a bankrupt, made before he becomes such, are 
 evidence against his assignees. Marks v. Barker, 1 Wash. C. C. Rep. 185, note a. But in 
 trover by the sheriff, for goods of Churchill, against the defendant who had distrained 
 
 the same goods, the latter offering Churchili's admissions to prove the demise upon 
 *323 which the defendant distrained, *the sheriff objected, and the court allowed the 
 
 objection, because Churchill was a competent witness. Alexander v. Mahon,'ll 
 John. Rep. 185. The case is defective, in not stating whether the admission was made 
 before or after the levy, though the reasoning of the court certainly leaves it to be 
 implied that whether prior or subsequent would make no difference. Kennedy, J., in 
 speaking of this case (Gibblehouse v. Strong, 3 Rawle, 451), thinks the admission must 
 have been made after the levy by which the sheriff's rights attached ; and a majority of 
 the court agree in repudiating the competency of Churchill as any objection to the testi- 
 mony. Id. 438, 451. According to this last view of the case, in trover for goods, founded 
 on an assignment of them to the plaintiffs by one Judson, in trust to pay the plaintiffs' 
 debt and others, the defendant having attached them on the ground that Judson did not 
 owe the plaintiff as he pretended, and that the assignment was therefore fraudulent, to 
 prove the debt, entries in Judson's shop-book, made before the assignment, was received 
 against the defendant, he claiming under Judson by liis attachment. And per Swift, Ch. 
 J. (with whom the other judges concurred) : " The shop-book of Judson would have been 
 proper evidence between the plaintiff and Judson to prove the state of their accounts ; 
 and, of course, was proper evidence in this action to show the indebtedness of Judson to 
 the plaintiff." De Forest v. Bacon, 3 Conn. Rep. 633, 638. It is observable that this case 
 of personal property is put on the same ground as Lady Dartmouth v. Roberts, the case of 
 vendor and vendee of real estate mentioned at the beginning of 'this note. Both assume, 
 as the premises, that the declaration would be evidence against the declarant himself. It 
 is then made to follow that it is therefore so against the party claiming in his right. In 
 Lord EUeuborough's phrase, the admission is 7-c3 inter eosdem acta. In neither case is it 
 put on the ground that the declarant is dead or an incompetent witness. The rights and 
 liabilities of an executor are subject to be affected by the declarations of his testators. 
 Cox V. Baird, 5 Greenl. 105. And so are those of the executor of an executor by the 
 declarations («. g., the inventory) of the iirst executor as to goods which he held, both as. 
 executor and gjiai-dian. Green v. Johnson, 3 Gill & John. 389. Otherwise as to the assets 
 which he held as executor merely ; for the last executor is in law the immediate repre- 
 sentative of the first testator, and so cannot be said to claim under, or represent the 
 second, in respect to the rights or obligations of the first. Knapp v. Hanford, 6 Comt. 
 Rep. 170, 174, 175. and note. The law that the executor of an executor shall administes- 
 on the estate of the first testator is now abolished in New York, and letters of admiois- 
 tration, cum, testameiito annexo, are substituted. 3 R. S. 71, 73, § 17. In assumpsit foi- 
 use and occupation by an executor, his testator's admission that the defendant was to pay. 
 no rent, and the reason, were received against the executor. Cox v. Baird, 5 Greenl. 105^. 
 And the acknowledgment of a debt, made by the debtor even after his arrest, if before 
 his escape, is evidence against the marshal in an action for the escape. Per Bailey, J., in 
 Rogers v. Jones, 7 Barn. & Cress. 86. So the admissions of an absconding debtor, made 
 before suit brought, are evidence in favor of the garnishee, and against the plaintiff, in a 
 proceeding by foreign attachment. This is on the ground that the plaintiff stands in the 
 absconding debtor's right. De Witt v. Baldwin, 1 Root, 138. And per Hosmer, Ch. J., 
 in Enos v. Tuttle, 3 Conn. Rep. 250, the plaintiff, " to use an expressive phrase, stands in 
 his own shoes." But the reverse of this is not true. The declarations of the absconding 
 debtor are not evidence for the plaintiff, for the very reason that they are evidence against 
 him. Enos v. Tuttle, 3 Conn. Rep. 347, 350. By the civil law, in case of an insolvent, 
 neither his acts, writings, books, nor declarations, whether before or alter Ms assignment, 
 are evidence to prove a debt due from him, either in a litigation between creditors or 
 between them and the assignees. The reason is, because the law presumes fraud in every 
 bankrupt, and that his acts, writings, entries or declarations, going to prove a debt, are 
 done or made with intention to give a fraudulent preference. Menendez v. Larionda's 
 Syndics, 3 Lou. Rep. 707 ; The Planter's Bank v. Lanusse, 13 Mart. Lou. Rep. 157 ; 0^- 
 field V. Maher, 4 Mart. Lou. Rep. (N. S.) 174. 
 
 2. The same rule holds where the transfer is by the act of the parties. The more usual 
 and familiar instance is that of sale. In this case, such declarations of the Vendor, made 
 before sale, as would be evidence against himself, are also admissible against his vendeoi 
 And this, without regard to the question whether the vendor be a competent witness 
 
264 Declarations against Interest, [ch. viii. 
 
 alive, capable of attending court, and within reach of a snbpoena, or not. The case is 
 exactly in pa/ri raiione with that of land, or other real estate. This we have, in part, seen 
 
 by Waring v. Waorren {m/pra), decided by the Supreme Court of New York. Let 
 *324 us pursue the argument from that case a little farther. *The defendant there 
 
 claimed the goods as those of Mrs Nocus, with whom he had intermarried. She 
 was his quad vendor ; and the court below received her admissions, made before the mar- 
 riage, that the goods belonged to the plaintiff, but rejected her admissions made after the 
 marriage had been solemnized. Mr. Bverston, arguing in support of that distinction, 
 says, "Mrs. Nocus had married Waring" (the defendant), "who thus derived title to the 
 goods from her, and which he held adversely to Warren" (the plaintiff), from whom Mrs. 
 Nocus derived her right. It is precisely the same as if the action was against Mrs. Nocus." 
 He then argues against the admission of her subsequent declarations, and adds, " The 
 declarations of a party holding adversely, are never received to support the title under 
 which he claims : though they may be received when against it." Spencer, J. : " In 
 actions of ejectment, that rule is constantly' adopted." And when the whole court came 
 to speak, they adopted the same distinction. 1 John. Bep. 343, 343. We cite so far to 
 show the analogy between the doctrine, as applied, either to real or personal property. 
 In the elaborate case of Gibblehouse v. Strong (3 Rawle, 437), none of the judges thought 
 of making a distinction, but although it was a question of ejectment, they drew their 
 arguments mainly from cases of the like declarations, as they affected the rights to per- 
 sonal property. There David Johnson, before he sold the land, had acknowledged that 
 though he had taken a deed in his own name, E. J. had paid the purchase money, thus 
 charging the land with a resulting trust, in favor of E. J. David Johnson then conveyed ; 
 and though he was alive, and attainable as a witness, yet his declaration was admitted. 
 The only objection made was David Johnson being alive. The general rule, that the 
 party must abide the declarations of the person under whom he claims, was admitted ; 
 but it was insisted that if the person making the declarations were alive, this was an 
 exception. Rogers, J., says : " I have examined all the cases, and I cannot perceive a 
 trace of any such exception. In most cases, it is true, the party was dead ; and this is 
 usually the case in fact ; for it is the declarations of an ancestor, that are most commonly 
 offered in evidence. It has in no case, however, been made a subject of inquiry whether 
 the person was dead or alive, a competent witness or otherwise ; and this surely would 
 have been the case, had any such qualiiication of the general rule existed. The reason 
 of the rule is at war with the exception. The point falls within the well-established 
 principle, that although a man's declarations are not evidence for him, they are strong 
 evidence against him. Suppose this declaration had been in writing, can David Johnson, 
 by a subsequent conveyance, prevent the party in whose favor the declarations were 
 made, from giving it in evidence against the party who claims under him ? And where 
 is the difference between written or parol testimony, except in the certainty ; and par- 
 ticularly m cases of personal property, which may pass by pa/rol, and to which the principle 
 also applies ?" Id. 438, 439.' Kennedy, J., said, the testimony " is not of ^that character 
 which, in a technical and legal sense, comes under the denomination of hearsay. It 
 comes under what is considered the declarations or admissions of the party to the suit, or 
 his privies ; that is, those under whom he claims ; in respect to which the general rule of 
 law is just as well settled that they shall be received in evidence, as that hearsay shall 
 not. The rule admitting the confessions or declarations of the party, extends not only to 
 the admission of them against himself, but against all who claim or derive their title 
 from him, in other words, between whom and himself there is a privity." And he con- 
 siders the privity between vendor and vendee, assignor and assignee, &c., as within the 
 definitions of Coke. Co. Litt. 271, 4 Rep. 123, 124. The learned judge then proceeds to 
 a commentary on Ivat v. Finch, stated in the text, and upon which we are now annota- 
 ting. There " the declarations of Mrs. Watson, a former owner of the property, which 
 consisted of three mares, made by her while in possession of the mares, were held to be 
 admissible evidence to show that she had transferred and parted with her right to them. 
 It is true that she was dead, and, therefore, could not be produced as a witness ; but, from 
 the opinion of the court, it is evident that that circumstance formed even no part of the 
 ground upon which her declarations were decided to be competent evidence. For 
 the court say, ' the admission supposed to have been made by Mrs. Watson, was against 
 her own interest, and had the action been between Mrs. Watson and the plaintiff, then 
 her acknowledgment that the property belonged to him might clearly have been given in 
 evidence, and therefore it ought to have been received in that instance ; because the right of 
 the lord of the manor depends upon her title.' The defendant, in this case, claimed under 
 her, as being the owner of the property, at the time of her death ; but her declarations 
 
 were held to be admissible evidence, to show that she had parted with her right to 
 *325 it before." 3 Rawle, 446, 447. We have just now (mtpra), compared the *language 
 
 of Lord Ellenborougli,and Swift, C. J. ; let us now connect them with the views of 
 the judges in the above cases of Ivat v. Finch, Waring v. Warren, and Gibblehouse v. 
 Strong ; and we shall find ourselves justified in the remark we have made, that the 
 admissibility of these declarations, whether in respect to real or personal property, 
 
SEC. Til.] When admissible. 265 
 
 stand in pari ratione. We may repeat, in respect to all of them, they are not inter alios 
 but inter eosdem. 
 
 We now, therefore, shall proceed more directly to show with what degree of uniformity 
 this rule has been acted upon, in respect to choses in possession. The defendant pur- 
 chased of the mortgagee of a slave. In detinue for the slave, the declaration of the 
 defendant's vendor, that the mortgage was paid in full, made before the sale (though 
 nothing said of the vendor's death), was held admissible against the yendee. Walthol v. 
 Johnson, 3 Call, 275, A. D. 1800. In another case, the defendant claimed a horse, by sale 
 from Bailey. In trover, the plaintiff claimed that Bailey had merely hired the horse of 
 him, and therefore could not make title to the defendant. Bailey swore for the defendant, 
 that he had got the horse of the plaintiff on exchange. And the plaintiff was iheu 
 allowed to show that before Bailey sold to the defendant, he had admitted the hiring; 
 and this not only to contradict Bailey, but more especially as the decHwration of a vendor 
 in possession, made hefore the sale, against the title. Johnson v. Patterson, 3 Hawks, 183, 
 185, A. D. 1833. In trover for a heifer purchased by the plaintiff, of B., the court denied 
 declarations of B. to affect the plaintiff, which were made after the sale ; but those 
 made before were received without objection. Woodruff v. Whittlesey, Kirby, 60. In 
 trover for slaves, the plaintiff claimed them by bill of sale from D. of the 10th of April, 
 1812 ; but D. continued in possession for a long time after, and finally manumitted the 
 slaves by a deed executed in 1831. The defendant interfered, to assert their freedom, 
 and for this the action was brought. The plaintiff was allowed to prove that intermediate 
 the date of the bill of sale and the deed of manumission, D., \,\e vendor of the plaintiff, 
 had often admitted the plaintiff's right, under the bill of sale : and this, though D. was 
 alive. Coale v. Harrington, 7 Harr. & John. 147. See Sprigg v. Negro Presley, 3 Harr. 
 & John. 493. The plaintiff claiming slaves by purchase, from the son-in-law, as given 
 by his father-in-law to him, the declarations of the latter, before parting with the slaves 
 to the son-in-law, that he did not intend them as a gift, were received in evidence against 
 the plaintiff. Stewart v. Cheatam, 3 Serg. 60. In detinue, for slaves, the plaintiffs 
 claimed them as a gift by the defendant to his daughter, at her marriage, in whose right 
 they claimed ; and the defendant was allowed to prove his own declaration, before his 
 daughter's marriage, that he would never give any slaves to his after-married daughters 
 during his life. Smith v. Montgomery's Adm'rs, 5 Monroe, 503. In a like action the 
 defendant purchased the slave of the father. In trover, by the daughter, she was 
 allowed to prove, that before the sale to the defendant, her father had, by a writing, 
 declared that the slave was a present to the daughter, from her grandfather ; besides 
 having often admitted this by parol. The whole was objected to by the defendant as 
 res inter alios acta ; but the court decided that it was admissible. They remark as to 
 the parol acknowledgments, that they were proper ; and the defendant claiming under the 
 father, was bound by his acts and acknowledgments before the sale. Forsyth v. Kreak- 
 baum, 7 Monroe, 97, 100, A. D. 1888. And see Martin v. Curtis, 3 Mart. Lou. Rep. 
 (N. S.) 105. . 
 
 The rule, as laid down in the case of Forsyth v. Kreakbaum, was very thSroughly 
 discussed by the Supreme Court of North Carolina in 1819. The action was trover, to 
 recover tile value of a negro, both parties claiming under one Hall, the plaintiff by a bill 
 of sale, dated December 15, 1817, and the defendant by a like bill, dated the 5th of the 
 same month. The plaintiff, to obtain priority over the bill of the 5th, then offered in 
 evidence Hall's declarations made before that day, that he had in truth already sold the 
 slave to the plaintiff; and that the sale was to be consummated between them by a bill 
 of sale on the 15th. Hall was in full life, and his attendance might have been obtained 
 by a subpoena. On this ground, he being » competent witness, the testimony was 
 objected to, and rejected at Nisi Prius. The verdict being for the defendant the plaintiff 
 moved for a new trial on this as the sole ground of his application. Henderson, J., 
 delivered the opinion of the court:' — "The declarations or confessions of the person 
 making them are evidence against such person, and all claiming under him by a sub- 
 sequent title, and for the plainest reasons. Truth is the object of all trials, and a person 
 interested to declare the contrary is not supposed to make a statement lees favorable to 
 himself than the truth will warrant : at least there is no danger of overleaping the 
 bounds of truth, as against the party making the declarations. It is, therefore, 
 *326 evidence against him ; and his subsequent purchaser stands in his *situation ; for 
 he cannot better his title by transferring it to another, or thereby affect the rights 
 of those who have an interest in his confessions. But it is said that the person whose 
 declarations are offqfed is entirely disinterested, and within the process of the court, and 
 therefore should himself be sworn. There would be some weight in this objection, if 
 they were offered as the declarations of a disinterested individual, in those cases where 
 such declarations are admissible, to wit : in cases of pedigree and boundary ; for then 
 the declarations would be inadmissible if the higher evidence, the oath of the party, 
 could be had. In all cases, except those of pedigree and boundary, the declarations of 
 disinterested individuals are inadmissible — for they are nothing but hearsay. In this 
 case, they are offered as coming from a prwg in estate, and therefore, in law, from the 
 party himself; for the privy completely represents him, so that the question whether 
 Vol. I. 34 
 
266 Decla/rations against Interest, [ch. Tin. 
 
 the person be now disinterested to declare the truth, and is amenable to the process 
 of the court, does not affect the point now under consideration. It is asked^why not 
 swear Mm? The answer is, the party likes his declarations better. He may, from some 
 motive, vary his statement ; and the party offering this evidence is alone to judge. It is 
 true, if he be now disinterested, either party may, if he choose, call him as a witness. - 
 The evidence was improperly rejected ; and the rule for a new trial must be made 
 absolute." Guy v. Hall, 3 Murph. 150, 151, 152. We have had occasion before to notice 
 how distinguished jurists have fallen, not only into the same channels of thought, but 
 almost of expression, on this subject. In Lady Dartmouth v. Roberts, Lord BUenborough 
 considered the vendor and vendee of land so completely identical, as to say of the latter, 
 when he denied the right which the former had acknowledged, now that srnne person is, 
 in effect, deraigning the title, &c. ; and in Guy v. Hall, per Henderson, J., the declarations 
 are offered as coming from &prvey in estate, and therefore in lam, from the pcwty himself. 
 The English courts have been for years removing the difficulties which lie in the way of 
 an unreserved application of this doctrine. In Hart v. Horn (2 Campb. 92), Heath, J., 
 was of opinion that the declarations of a person under whom the defendant made 
 cognizance in replevin were not evidence against Mm, and in favor of the plaintiff; and 
 that case was said, a/rguendo by counsel (7 Moore, 307), to have been afterwards acted 
 upon at Nisi Prius, in Trinder v. Wilson. But in trover for a deed, which the defendant 
 had received of W. B., and held for Ms benefit, it was decided' that W. B's declaration 
 might be received against the defendant. Harrison v. Vallanee, 7 Moore, 304 ; S. C, 1 
 Bing. 45. On Hart v. Horn being cited as contra. Park, J., said that case was a mere 
 Nisi, Prius decision, and had never been considered as an authority. Id. 310. In Jackson, 
 ex d'em. Titus v. Myers (11 Wendell, 237), Savage, C. J., refused to recognize the objection 
 that the vendor may be called, as a reason why his declarations are not receivable to 
 impeach his sale. "A party," says the chief j ustice, " is not compelled to call a party in 
 interest, merely because he may do so." 
 
 The cases which have arisen upon this question in the state of New York, Hurd v. West, 
 and others, will be considered infra, in connection with those in the same state, relative 
 to the admissibility of the declarations of the holders of bills and notes against their 
 indorsees. 
 
 Where a case of doubt is made by the evidence, whether a paity has established a gift, ■ 
 &c., to Mmself from the alleged donor, a party claiming adversely by a plain article of 
 sale fronj the same donor may give evidence of the donor's declarations calculated to 
 negative the gift, though they be made subsequent to the time alleged, and claimed by the 
 donee as the true date of the gift. It would be otherwise, if the gift were clearly made 
 out to have been made at the time ; but, so long as that remains open, the declarations of 
 the alleged donor shall be let in to oppose the gift. Sims v. Saunders, 1 Harp. Rep. 374, 
 A. D. 1824; M'Kane's Ex'rs v. Bonner, 1 Bail. Rep. 113, 116. To affect a vendee clearly 
 shown to be such, the vendor's declarations must appear, affirmatively, to have been made 
 before the sale. Bullard v. Billings, 2 Verm. Rep. 309, 312. 
 
 But it will have been seen, as part of the rule, that it must appear, before *uch declara- 
 tions of a vendor can be let in, that the party against whom they are offered does in truth 
 claim under Mm. And where the plaintiff claimed a negro, Jim, by possmeion, the 
 defendant would have made out a sale to himself by a letter from one Smith, admitting 
 that he. Smith, had sold Jim to the defendant. But this was denied, inasmuch as the 
 plaintiff had not deduced his title from Smith. The letter was written after the suit was 
 brought ; and the court said Smith might as well have been brought into open court, to 
 sign certificates as the exigencies of the defense might require successive expedients. 
 
 Watson V. Williams, 1 Harp. Rep. 447, 449, 450. 
 *327 *It will also have been seen as implied in all the cases to which we have adverted, 
 *that the same rule which receives these declarations of the vendor, donor, assignor, 
 &c., when made before the declarant has departed with his right, shuts them out, as we 
 noticed in respect to real estate, where they appear to have been made afterwards. To 
 this the cases are numerous, and almost every one of them, wMle standing to prove that 
 branch of the rule which operates exclusively, may be adduced as establishing the first or 
 inclusive clause. Otherwise the cases would stop by saying unqualifiedly the vendor's 
 declarations are inadmissible. They do not say so ; but almost every one of them give as 
 the reason, that such declarations being made after the declarant has parted with hia 
 interest, cannot operate ex post facto in the divestment of a right which he himself has 
 created, or at least a right over which he had no control and could not touch at the time. 
 Phoenix v. The Assignees of lugraham, 5 John. Rep. 412 ; per Spencof, J., p. 426 ; Perry 
 V. Smith, 4 Yorg. 323, 325 ; Elbauk's Ex'rs v. Burt, 3 Hayw. 380 ; Robinson's Adni'rs v. 
 Devone, Id. 154 ; Arnold v. Bell, 1 Hayw. 396, and 397, 398,, note; Babb v. Clemsou, 13 
 Serg. & Rawle, 328, 329 ; Dismukes v. Musgrove, 8 Mart. Lou.' Rop. (N. S.) 375 : M'Kane's 
 Ex'rs V. Bonner, 1 Bail. Rep. 113, 115 ; per Savage, C. J., in Sprague v. Kneeland, 13 
 Wend. 164 ; Woodruff v. Whittlesey, Kirby, 60. See also Wolf v. Carothers, 3 Serg. & 
 Rawle, 240, 245 ; and Whiting v, Johnson, 11 Id. 328, 829. 
 
 But to bring himself within the last clause of the rule, the vendee, donee, assignee, &c., 
 must see that the sale, gift, or assignment is consummated, and plainly so by a delivery 
 
spa VII.] Wh&n, admissible. 267: 
 
 of possession. Mere words or writings will not do ; and it has been repeatedly held, as 
 we have before noticed, ante, note 81, and as will be seen in the subsequent notes in the 
 chapter, that a vendor or former owner remaining in possession after a bargain and sale, 
 or other transfer, absolute in its terms, will, where creditors are concerned, either be 
 deemed such evidence of a conspiracy to affect their rights, that the judge will let in the 
 vendor's declarations as a co-conspirator, with the person pretending to claim under him, 
 and this too where he is in colorably as a servant ; or at least it will be deemed such a 
 connection with the property, as to warrant the receipt of the declarations as a part of the 
 res gestcB. Babb v. Clemson, 10 Serg. & Eawle, 419, 426, 427 ; S. C, 12 Id. 328, 329, 330 ; 
 Willies V. Farley, 3 Carr. & Payne, 395 ; per Carr & Green J's, in Clayton v. Anthony, 6 
 Rand. 285 ; Wilbur v. Stickland, 1 Rawle, 458 ; Martin v. Eeeves, 3 Mart. Lou. (N. S.) 23, 
 24. But see Talcott v. Wilcox, 9 Conn. Eep. 134, 139. But in these oa§es it should 
 appear affirmatively that the possession continues in the vendor at the time of the decla- 
 rations before they can be received. Den ex dem. Pickett v. Pickett, 3 Dev. 6, ante, p. 320. 
 
 We considered the cases in Louisiana to the last pointy when speaking of the declara- 
 tions of the vendor of real property. See gwpra. To these we shall not again recur 
 particularly. Suffice it to say, they will be seen in the main practically to agree with 
 Willies V. Farley, and the corresponding cases just cited. We also noticed the' difficulty 
 of going on any principle other than those recognized in these last citations. 
 
 In one case, it was held that the declarations of the vendor, though made after sale and 
 delivery, were admissible against the vendee, if they accorded with his own declarations 
 previously made. But this seems to have been the acknowledgment of facts, which the 
 vendee admitted he had full notice of from the vendor at the time of the purchase, and a 
 mere repetition of such facts by the vendor. They appear to have been undisputed by 
 the parties, except as to their legal construction. Hunter v. Jones, 6 Rand. 541. 
 
 3. As to choses in action. The admissions or declarations of the assignor of a chose in 
 action made while he is the holder, are evidence against his assignee and all claiming 
 under him. With What qualifications these admissions are to be taken, when made after 
 assignment by a previous holder, will be very fully considered in the subsequent notes. 
 When made before assignment, the rule is universal ; and the only qualification lies in 
 bills of exchange or promissory notes, which pass from the hands of the declarant before 
 due to a iona fide holder in the course of trade. 
 
 Accordingly, on a feigned issue to try whether a judgment assigned to the plaintiff was 
 a valid lien on the debtor's land, the admissions of the assignor before he had assigned, 
 going to show that the judgment was paid, were received for the debtor. Kellogg v. 
 Krauser, 14 Serg. & Rawle, 137, 141 ; Scott v. Coleman, 5 Litt. Rep. 349. But we forbear 
 to cite cases to a point so clearly settled in respect to all choses in action, that the only 
 doubt entertained and difference among the cases are, whether such admissions shall not 
 be received against the assignee even after the assignment was made, and notice 
 *338 to the debtor. Upon this strongest possible case against the *assignor's admission, 
 two such tribunals as the Supreme Courts of New York and Connecticut are directly 
 at issue. The former holds that admissions after notice are not, the latter that they are 
 Btill admissible. Frear v. Evertson, 30 John. Rep. 143 ; Bulkley v. Landon, 3 Conn. Eep. 
 76. And see also Thomas's Ex'x v. Denning, 3 Har. & John. 343, which is directly the 
 reverse of Frear v. Evertson. 
 
 The same rule applies, with all its rigor, to admissions made by the holders of bills of 
 exchange and promissory notes, which are overdue or dishonored in their hands, or where 
 the plaintiff is not an innocent holder in the fair course of trade. For, in Shaw v. Broom 
 (4 Dowl. & Ryl. 730) : the court seem to concede that, in sach a case, the bill stands upon 
 the footing of any other chose in action, and that the declarations of the indorser, though 
 made even after indorsement, are evidence against the indorsee. Ry. & Mood. 213, note to 
 Smith v. De Wruitz. Be that as it may, the almost unbroken drift of the cases is, that all 
 admissions made before are admissible. The declarant must, however be the holder of 
 the bill at the very time of the declaration made. Pocock v. Billing, 3 Bing. 269. When 
 this case of Pocock v. Billing was on trial, which was before Ch. J'. Best, he likened it to 
 that of declarations made by the owner of the estate during his possession. Pocock v. 
 BiUing, Ry. & Mood. N. P. Rep. 137. Thus, in Peckham v. Potter (1 Carr. & Payne, 232), 
 which was an action by indorsee against acceptor, it appearing that the plaintiff had 
 notice of the fraud between the drawer and the defendant, the indorser's declarations, 
 acknowledging the fraud, were received by Lord Gifford, Ch. J. Again, in Coster v. 
 Symons (1 Carr. & Payne, 148), the action was against the acceptor on a bill indorsed by 
 Shaw to Akers, and by Akers to the plaintiff. The defense was that the bill had been 
 accepted without consideration, and had, besides; been satisfied by a substituted arrange- 
 ment while Akers held it, to show which Akers' letter to Shaw was offered. Qazelee, for 
 the plaintiff, objected, " Akers is in existence, and may be called. I admit we are bound . 
 by any act of Akers, but not by what he says." Abbott, Ch. J.: " I think, in a case at the 
 last pittings, I admitted evidence of a similar description ; and I believe the question is 
 now before the court on a motion for a new trial. 1 will take a note of the objection." ■ 
 The letter was then read, when Abbott, Ch. J., said in conclusion : " I think I ought to 
 receive this evidence. ItUa declaration of tlie poffty under whom the plaintiff claims title, j 
 
268 Declarations by Solder [ch. viii. 
 
 shiomng thai, he had no title at aU." Verdict for defendant. This case, it ■will be perceived, 
 and the principle upon which it goes, harmonizes wi-th the whole doctrine that the decla- 
 ration of the owner shall be received against one in privity with and coming after him, as 
 we have seen it applied to real and personal property in all its variety, in all the relations 
 of privity, whether of blood, of legal representation, estate or contract ; and it has again 
 and again been recognized in respect to bills and notes. In Haddan v. Mills (4 Carr. & 
 Payne, 486), it appeared that one Rigby had indorsed the bill to Mills when overdue, and 
 it was proposed to show Rigby's declarations against his indorsee, made while the former 
 was in possession, going to establish the want of consideration. Storks, sergeant, objected. 
 Tindal, Ch. J.: '' You derive title under this party, and what he says is evidence against 
 you." And the testimony was received. Crayton v. Collins, 3 M'Cord, 457, S. P. These 
 are cases, too^in which. the declarant was alive and capable of being produced ; and, in 
 Coster V. Symons, he was in the end actually produced, and failed to explain away his 
 admissions. In Barough v. White (6 Dowl. & Ryl. 379), the action was on a promissory 
 note, payable to Arnett and indorsed by him to the plaintiff. It was payable on demand. 
 Arnett's declarations, while holder, being offered by the defendant at Nisi Prius, were 
 excluded, because the note had not lain long enough in his hands to be dishonored. On 
 motion for a new Itrial, per Bailey, J.: " Had the plaintiff been identified with Arnett," 
 who was alive, " by showing that he had taken the note without consideration, or after it 
 was due — when it might be deemed or treated as a dishonored note — the case would stand 
 upon a very different footing" (p. 381, 382). He then goes on to show that it was not to 
 be deemed overdue. Holroyd, J., was of the same opinion, "there being nothing to iden- 
 tify Arnett with the plaintiff." Littledale also agreed that such identity would have 
 authorized the proof (p. 388). The court denied a new trial, on the ground that the note 
 could not be deemed to have been overdue when Arnett parted with it. The same point 
 was presented and ruled the same way in Beauchamp v. Parry (1 Barnw. & Adolph. 89), 
 though, per Lord Tenterden, Ch. J., " if the indorsement had been made to plaintiff after 
 the note hadbecome due, the case would have been different." And Bailey, J., said; "To 
 
 make the declaration of the payee evidence, the indorsee must be identified in 
 *339 interest with the *payee, as by taking the note without consideration or after it was 
 
 due." Accordingly, in Snelgrove v. Martin (2 M'Cord, 341), which was an action by 
 the indorsee against the maker of a note, the defendant proved the declarations of the 
 payee (though he was alive), while holder, that the note was on a gaming consideration. 
 On motion for a new trial the court denied the motion, saying, by Richardson, J.: "At 
 common law the acts, declarations and confessions of a party to a suit have been always 
 received as the highest evidence against such party ; and, in like manner, the declarations, 
 acts, &c., relating to the matter in dispute, made by a person while he is interested, are 
 good evidence against a party claiming subsequently under such person. Were this not 
 the rule, a debtor could not be safe in taking the receipt of his creditor. For instance, 
 the obligee of a bond might give loose receipts, or acknowledge the bond paid in full ; 
 but, if he afterwards assigned, the assignee -would hold, independent of the receipts. I 
 take the general rule of the common law to be, that wherever the act or declaration of a 
 party then interested would be evidence against himself, such will be evidence against his 
 subsequent assignee, or party claiming under him." The learned judge prefaced these 
 remarks by saying that, as a gaming consideration made the note void in the hands even 
 of an innocent indorsee, the question was governed by the general rules of evidence, and 
 not by any doctrine peculiar to notes, &c. In was on this latter principle that the letters 
 of the payee were received against the indorsee in Kent v. Lowen (1 Campb. 177), going 
 to show that the note stood upon an usurious consideration ; for, in that case also, it would 
 be void ; and hence, both ofithe last cases seem to proceed in disregard of the inquiry 
 whether the notes passed in the fair course of trade or not. In Coster v. Mersey (7 Moore, 
 90), Park, J., says of Kent. v. Lowen, that it was more than a Nisi Prius authority, for he 
 had moved for a new trial, which was denied because it appeared that the letters were 
 contemperaneous with the note. Indeed, Coster v.Mersey itself appears to sanction the 
 case of Kent V. Lowen! Again, in CoUenridge v. Farquharson'(l Stark. Rep. 259), the 
 bill falling due while the indorser P. held it, an entry in his book was offered in evidence 
 by the defendant against the plaintiff, a subsequent indorsee of P. It was not denied that 
 any entry or declaration made by P.. accompanying an act, while in possession of the note, 
 would be receivable ; but the entry was rejected on the sole ground that the time when it 
 was made was not shown. Lord EUenborough said the entry might have been made for 
 the very purpose of being used in evidence. In Kimball v. Huntington (10 Wend. 675, 
 681), the admissiotis of an assignor, made before he had given a release to the debtor, 
 were received to defeat that release, on the usual ground. Nelson. J., said they were 
 binding on the assignor (the releasor), and hence he inferred that, being before the release, 
 they equally bound the releasee, who claimed under the former. 
 
 There are certainly several decisions which have been made without any regard to these 
 distinctions. The admissions of the holder have been rejected, when offered against the 
 subsequent indorsee or bearer, without its being looked to that they were made before or 
 after the indorsement or delivery ; in some cases, because the declarant could not be heard 
 to impeach his own paper, within Walton and Shelly (Butler v. Damen, 15 Mass. Rep. 
 
SEC. VII.] Of NegotiabU Paper. 269 
 
 233, 235) ; in otier casea, because he vrss a competent -witness, and his declarations, those 
 of a mere third person, naked hearsay. Ross v. Knight, 4 N. H. Rep. 336 ; Bristol v. 
 Dann, 12 Wend. 143 ; Whitaker v. Brown, 8 Wend. 490 ; Hedger v. Horton, 3 Carr, & 
 Paine, 179, Cor. Gaselee, J. ; per Parker, Ch. J., in Barker v. Briggs, 8 Pick., 137. And 
 this was held in Duckham v. Wallis (5 Esp. 351), though the declarations were made 
 while the bill lay dishonored in the hands of the holder, and before the indorsement. 
 Lord Ellenborough said he must be produced. His declarations were those of a third 
 person, and not tie beat evidence. If this be so, the Supreme Court of New York were 
 certainly right in deciding aa they did in Kent v. Walton (7 Wend. 256), in a similar case, 
 that the declaration would not be admiaaible, even though the declarant be dead at the 
 time of the trial. See Page v. Cagwin, 7 Hill, 361, and Brown v. Mailler, 2 Kern. 118, and 
 16 N. Y. Rep. 497. 
 
 The only doubt lies in the principle. Is the purchaser in privity with the rights of the 
 seller? Does the vendee take subject to the vendor's defect of title? Does the donee 
 take subject to the donor's acts ? While the vendor is in poaaession, are his declarations 
 the same as his acts? See ante, note 81. Does the indorsee stand in privity with the 
 indorser, or is his claim paramount as an innocent holder? If the latter, his indorser's 
 previous declarations do not affect him, for he claims a right, not under, but superior to 
 his indorser, directly from the law merchant. Mr. Justice Gaselee was much stag- 
 *330 gered for want of adverting to this latter distinction in Hedger v. *Horton, supra. 
 He at first inclined to receive the indorser's declarations, without regard to the 
 innocence of the plaintiff. The marginal abstract of Barough v. White being produced, 
 he did not think even that case in the way ; but he finally withheld the testimony upon 
 the ground taken by Lord Ellenborough in Duckham v. Wallis, that the declarant was 
 alive, and a competent witness ; and even goes so far as to suggest that this rule was uni- 
 versal in regard to real as well as personal estate. 3 Carr. & Payne, 179. But we believe 
 the great principle which lets in these declarations, wherever a strict privity haa been 
 made out, has never been broken in upon by the Engliah courts, except at Nisi Prius. 
 The Supreme Court of the state of New York has pursued a divided course ; sometimes 
 letting in these declarations on the ground of privity, and sometimes rejecting them as 
 mere naked, independent hearsay. In Waring v. Warren (1 John. Rep. 340) also stated 
 swpra, (A. D. 1806), they received the declarations on the ground of privity. In Alexander 
 V. Mahon, A. D. 1814 (11 John. Rep. 185), they rejected them as naked hearsay; In a sub- 
 sequent case (A. D. 1827), trespass for taking the plaintiff's sheep, which he had bought 
 of Dayton, the court below received evidence of Dayton's admiaaions while in possession 
 and before the sale, that the sheep were the property of the defendant. Indeed they were 
 not objected to. But on error, the Supreme Court said they were inadmissible, and could 
 not be taken into the account as proof, citing Alexander v. Mahon ; and taking the ground 
 that Dayton was a competent witness. Hurd v. West, 7 Cowen's Rep. 752, 759. In a 
 subsequent case (A. D. 1838), they resume the ground of privity. The case was 
 this : Austin brought trespaaa against Sawyer for taking away the plaintiff's growing 
 crop of wheat. In October, 1825, Austin had given a quitclaim deed of his land, where 
 the wheat was growing, to one Wilcox, without any written reservation ; so that the 
 wheat passed by the deed to Wilcox. Some time afterwards, but before the wheat was 
 ripe, Wilcox stated to the defendant that the wheat had been reserved to Austin, and 
 belonged to him. This was at the time when Wilcox contracted by parol to convey the 
 same land to the defendant. Wilcox shortly after conveyed, telling the defendant, then 
 again, that the wheat was reserved and belonged to the plaintiff. But the defendant cut 
 and carried it away. The Supreme court held that any oral reservation of the wheat by 
 the plaintiff, when he conveyed it to Wilcox, was unavailable as contradicting the deed, 
 which carried the wheat on the face of it ; but that the declarations of Wilcox that the 
 wheat was reserved and belonged to the plaintiff, might be viewed by the jury in the 
 light of an admission that he had sold the wheat to the plaintiff intermediate his convey- 
 ance to Wilcox and that of the latter to the defendant. The verdict, which was for the 
 plaintiff, was in this way sustained. Austin v. Sawyer, 9 Cowen's Rep. 39. In a subse- 
 quent case (A. D. 1833), Sutherland, J.., re-asserts and strongly advocates the doctrine of 
 Hurd V. West (supra). Whitaker v. Brown, 8 Wend. 490, 491, 492. And on the authority 
 of this last case. Savage, C. J., in Bristol v. Dann (12 Wend. 142), lays down the rule aa 
 settled, " that a party who can call a witness shall not be permitted to prove his declara- 
 tions." And see per Parker,, C. J., 8 Pick. 127. Nor does he even concede fully, that one 
 claiming real estate under another can be affected by his declarations, though he admits 
 that this is said to be an exception. Id. 143. And indeed there can be no doubt, that if 
 we take the principle of Alexander v. Mahon. Hurd v. West, and Whitaker v. Brown, 
 that because a man is a competent witness, his declaration is to be excluded, the conclu- 
 sion, and more than the conclusion of the chief justice, must flow from it. Declarations 
 admissible from privity must all go — the vendor's to affect his vendee in respect to land 
 as well as everything else ; for the former is competent ; the agent's declarations, made 
 within the scope of his a,uthority ; for they are no more part of a r«« gestw than those of 
 the vendor in possession ; and the agent is always a competent witness. Cc-conspirators are 
 equally competent, and all those who participate in riots or other offenses, have a common 
 
270 Declarations against Interest, [ch. vni. 
 
 object, &c. The same learned court had but a few days before decided that, on a question 
 of fraud in the sale of property, the declarations of all the actors engaged in the common 
 object are evidence against the immediate parties. Crary v. Sprague, 12 Wend. 41. That 
 case is not law within the rule ; for no one will pretend that they are not competent wit- 
 nesses. In that very case, too, the declarations of M'Gregory, and others under whom the 
 defendants claimed, were received in evidence against the.latter, although M'Gregory was 
 alive and was afterwards actually introduced as a witness by the defendants themselves. 
 Full effect was allowed to these declarations in the opinion of the court. Tet that opinion 
 cannot be law in this respect, if the rule be that the declarations of a man shall be shut 
 out because he is a competent witness. It cannot be denied that such a rule must 
 *331 *displace several of the best settled and most comprehensive principles of evidence, 
 overturn large and ancient superstructures, if it do not subvert the most important 
 lights. Taken in its fullest extent, the declarations of all that class of floating popula- 
 tion, who intrude into our wild lands as naked possessors, quitclaim to others and 
 emigrate to,ward8 the Rocky Mountains, are no longer evidence for the lawful claimant, 
 to destroy the apparently adverse character of their possession. They too are compe- 
 tent witnesses. Indeed the consequences of the rule suggested in Bristol v. Dann, 
 appeared to be so general, that only a few days after, when a like question arose in 
 Sprague v. Kneeland (13 Wend. 161, 164)), the chief justice lays down the rule more cau- 
 tiously; and as it is recognized by the strong current of authority. At the conclusion of 
 that case, his words are : " That the declarations of the former owner of personal property 
 cannot be given in evidence to affect the title of the succeeding owner, where such decla- 
 rations are made after he had p a/rted with his interest in the chattel, has been decided in 
 several cases." 
 
 That we have not enlarged the dimensions of the rule of Hurd v. West beyond its 
 necessary import, is evident from the course of Gibblehouse v. Strong, (3 Bawle, 487). 
 An effort was there made to shut out an acknowledgment of the legal owner in fee that 
 he held subject to a resulting trust ; an acknowledgment made while he was in posses- 
 sion, and before he had conveyed. This was attempted mainly on the rule of Hurd v. 
 West. All the judges saw at once that it comprehended laud as well as chattels ; and 
 that the only alternative was an exclusion of the evidence, or a dissent from the rule. A 
 point blank authority, emanating from such a high source, when added to the counte- 
 nance which the same rule had derived from English judges, was calculated to stagger 
 any tribunal upon a question which remained at all unconoluded by a long and jinbrokeu 
 line of adjudication. Nor were the Supreme Court of Pennsylvania unanimous. A 
 majority, Rogers and Kennedy, Judges, against Huston, J., expressed their dissent from 
 the New York case. 
 
 The distinction, that although the party who acquires a bill or note by indorsement, 
 delivery or other-wise, after it is due or dishonored, or with notice or without considera- 
 tion, or in any other manner whijoh deprives him of the character of a iona fide holder, is 
 so far identified with the previous owner that his declarations, while owner, may be 
 received against such party ; yet, that where the latter is a iona fide holder in the course 
 of trade, he cannot be touched by such declarations, not only harmonizes with various 
 other legal consequences growing out of that character, but the cases all speak directly 
 and uniformly upon this branch of hearsay evidence. The principle is, that the bona fide 
 holder is not a mere privy in title or estate with the preceding owner, except with regard 
 to certain grounds of defense which we have noticed. Among them are usury o r gaming, 
 or the like vice, which nullifies the bill or note absolutely in the hands of the holder, 
 whether bona fide or maia fide. Even this now is qualified by statute in several coun- 
 tries. And, independent of statute, the declarations do not seem admissible, unless made 
 at the time of creating the paper, so as to constitute a part of the vicious act itself. 
 Beauchamp v. Parry, 1 Barnw. & Adolph. 89. But in other cases, the bona fide holder by 
 his purchase of the bill or note, stands, in a great measure, independent of the former 
 holder, who indorsed or delivered the paper to him. The law disconnects him Arith the 
 previous title, and takes him into its own charge, as deriving a right from itself And 
 hence, among other privileges, while it cuts him clear of all the previous hostile acts of 
 his predecessor, it forbids that his declarations shall be used in derogation of those rights 
 which he professed to confer. To the latter point, we shall merely cite the cases, 
 among which there is nothing like discordance. Barough v. White, 6 Dowl. & Ryl. 379 ; 
 S. C, 4 Barn. & Cress. 325 ; Smith v. De Wruitz, Ry. & Mood. N. P. Rep. 213 ; Beauchamp ' 
 V. Parry, 1 Barn. & Adolph. 89. Above all, the declarations should appear to have been 
 made previous to the transfer. Shaw v. Broom, 4 Dowl. & Ryl. 730; Collenridge v. 
 Farquharson, 1 Stark. Rep. 259; Anon., K. B. Tr. T. 1834, 3 Stark. Ev. 42; Lightner v. 
 Martin, 3 M'Cord, 414 ; Turpin's Adm'rs. v. Marksberry, 3 J. J. Marsh. 622, 627 ; Craytou 
 V. Collins, 3 M'Cord, 457. An admission by an indorser that the indorsement on the 
 paper, is in his handwriting, is, of course, no evidence against the maker. Robertson v. 
 Crockett, 1 Yerg. 303. 
 
 It will have been obvious, upon the principles we have been considering, and we also 
 add, is plain upon authority, that, in no case are the declaration s-of the grantor, vendor, 
 &c., as declarations, evidence for those claiming under him. Den ex dem. Sasser v. 
 
SEC. VII.] WTien admissible. 271 
 
 Herring, 3 Dev. 340, 342 ; Waring v. Warren, 1 John. Rep. 340, 343 ; Enos v. Tuttle, 3 
 Conn. Rep. 347, 350. Our previous note, 81, will show the distinction between naked 
 declarations, and those mailing a part of the res gestae, when offered as evidence for the 
 party. These latter declarations, like those against interest, do, in the same manner as a 
 covenant real, if we may be allowed the expression, run with the land, or other property, 
 into the hands of all persons coming in as privies to the former owner. One instance 
 arose in an action of dower, where the widow was allowed to show her husband's declara- 
 tions, while in possession, to prove the extent of his claim. Forrest v. Trammel], 1 Bail. 
 Eep, 77. 
 
 (Declarations by the assignor or vendor of an account or of property, made after the 
 transfer, are not admissible. The State v. Jennings, 5 Eng. 438 ; BeaJ v. Barclay, 10 B. 
 Mon. 361 ; Settle v. Alison, 8 Geo. 301 ; Price v. Branch Bank at Decatur, 17 Ala. 374 ; 
 Kittles V. Kittles, 4 Rich. 423 ; Stewart v. Reddit, 3 Md. 67 ; Garland v. Harrison, 17 Mis. 
 (2 Bennett), 283 ; Simpkins v. Rogers, 15 111. 397. 
 
 Such declarations are admissible, if made before the transfer, and calculated to affect or 
 qualify the title (Maxwell v. Harrison, 8 Geo. 61); or to impeach the transfer for fraud 
 (Harshaw v. Moore, 13 Ired. 347 ; Head v. Halford, 5 Rich. Eq. 128) ; or to disparage the 
 title. Parker v. Marston, 34 Maine, 386 ; Darling v. Bryant, 17 Ala. 10, 314 ; Strong v. 
 Brewer,' 17 Ala. 706 ; Crawley v. Tucker, 4 Rich. 560 ; Jennings v. Blocker, 25 Ala. 415. 
 
 The dedarations of tlie obligee in a bond made while he was the owner of It, showing 
 it to have been ^ven for an illegal consideration, may be shown in evidence against his 
 assignee (Murray v. Oliver, 18 Miss. (3 Bennett), 405) : but are not admissible when made 
 after he has transferred his interest in the bond. Bailey v. Clayton, 20 Penn. (8 Harris) 
 395. The same rule applies in the case of a note not negotiable (Abbott v. Muir, 5 Ind. 
 444) ; and to a negotiable note or bill after the same has been dishonored, when it passes 
 to the indorsee, subject to all the equities. Shirley v. Todd, 9 Greenl. (Me.) 83 ; or where 
 the indorsee takes an illegal note with notice. Sharp v. Smith, 7 Rich. (S. C.) 3. To 
 render the declarations of a former owner admissible, it is first necessary to show that this 
 plaintiff acquired the negotiable note or bill under such circumstances that he holds it 
 subject to all the prior equities. Philips v. Cole, 10 Adol. & KUis, 335 ; Barough v. White, 
 4 B. & C. 335 ; Peabody v. Peters et al., 5 Pick. 3 ; Sargent et al. v. Southgate, 5 Pick. 
 312. In the common course of business, the purchaser of negotiable paper, taking it 
 before due and for value, does not stand in the place of the previous holder ; the law, on 
 the contrary, clothes him with a new right, and frequently vests him with a better title 
 than his indorser possessed. But this is not the case after the paper has been dishonored, 
 or where the purchaser takes it chargeable with notice of the invalidity of the instru- 
 ment or the infirmity of his title to it. 
 
 In this state, the declarations of the payee of a negotiable note cannot be shown in evi- 
 dence against a subsequent holder, though made after it was due, and before it was 
 transferred to the plaintiflT; and the rule is the same, though the payee be since deceased. 
 Kent V. Walton, 7 Wend, 356 ,■ Beach v. Wise, 1 Hill, 613 ; Smith v. Schenck,' 18 Barb. 
 844. In Paige v. Cagwin (7 Hill R. 361), the question was much discussed, and Senator 
 Lott, who delivered the prevailing opinion of the court, maintains the doctrine that the 
 declarations of a prior holder are not admissible against the plaintiff where his title or 
 interest is not identical with that of the declarant ; and that the identity of interest, spoken 
 of in the books, is found to exist only where the rights of the assignor or indorser continue, 
 and are represented by the assignee or indorsee ; so that, in the ordinary case of a sale or 
 transfer for value, the declarations of a fonner owner cannot be Shown in evidence in pre- 
 judice of the purchaser's rights. Brown v. Mailler, 3 Keman R. 118 So, m a late case, 
 it was held, that where a sale of personal property is shown, the prior declarations of the 
 vendor cannot be proved to show a previous sale of ^the same property. Coit v. Howd, 1 
 Gray, 547. 
 
 Though the declarations of a former owner of a chattel or chose in action cannot in this 
 state be given in evidence against an assignee or subsequent purch^er for value, it 
 appears to be conceded that in an action by the administrator of a deceased person, the 
 declarations of the deceased are admissible against him, on account of the privity suiisist- 
 ing between the deceased and his representative; but the declarations of the intestate are 
 not admissible to show that he was a partner of another, a plaintiff in an action against 
 third persons, even where they allege title to property in question in the administrator of 
 the deceased. BroWn v. Mailler, 3 Kern, 118. The note as held here excludes the declara- 
 tions of former owners of chattels or choses in action against subsequent pure/iasers or 
 assignees for value;. Schenck v. Warner, 37 Barb. 358 ; it does not exclude declarations by 
 a deceased person against his interest, when these are offered in evidence by the plaintiff 
 in ejectment to prove payment of a mortgage under a foreclosure, of which the defendant 
 alleo'es an outstanding title, without connecting himself with it. Id. People v. Blakely, 
 4 Park. Cr. 176. 
 
 A written receipt signed by the mortgagee is not admissible in evidence against the 
 assignee of the mortgage, though it bears date prior to the assignment, there being no 
 evidence to show when the receipt was given. Foster v. Beals, 31 N. Y, Rep. 347. The 
 receipt is of no greater force than the declarations of the mortgagee, which are also inad- 
 
272 Exceptions, when against Interest. [ch. tiii. 
 
 by a deceased party^ that she had given up her stock in trade to her 
 *332 son-in-law, *was held to he admissible' in evidence; but there, the 
 
 party against whom the declaration was admitted, claimed adversely 
 to the declarant. (1) That was an action of trespass for taking three mares. 
 The defendant justified as lord of the manor under a heriot custom, and the 
 
 only question was, whether the deceased tenant was possessed of 
 • *333 the mares at the time of her *death. At the trial at Nisi Prius, 
 
 Lord EUenborough, C. J., rejected the evidence of her declaration 
 that she had parted with the mares, on the ground that the declaration was 
 not accompanied by - any act relative to the management of the farm. 
 Upon this it may be remarked, that although declarations accompanying 
 acts may be explanatory of such acts, they do not derive additional credit 
 from, that circumstance as to matters totally unconnected with the acts 
 which they accompany, except so far as they may be thought more delib- 
 erate. The Court of Cfommon Pleas held that the declaration was admissible, 
 as being made against interest ; and Lord Mansfield, C. J., concluded his 
 judgment by saying, " it ought therefore to have been received, because 
 the right of the lord of the manor depended upon her title." This case 
 may perhaps, therefore, in some measure, be considered as resting on the 
 doctrine of admissions on account of the privity between the lord of 
 the manor and the tenant. 
 
 Declarations of persons alive. In the case of Walker v. Broadstock, (2) 
 it was stated by Lord Kenyon, C J., that the declarations of occupiers 
 were evidence against their own rights. This case may be supported (5n 
 the ground of the declarations of occupiers being admissible as explanatory 
 of the fact of possession, or perhaps, more satisfactorily, on the ground of 
 the admissions being made by privies in estate. (3) It seems difiicult to 
 support it on the broad principle stated by Lord Kenyon ; for one of the 
 declarants was alive. (4) The question was concerning the existence of a 
 prescriptive right of common, and a deceased occupier of the plaintifi''s 
 property had, during his occupation, said that his cattle had been impounded 
 on the place in dispute ; and a living occupier had, during his enjoyment, 
 declared he believed that no right of common belonged to the property. 
 In a late case, (5) Lord Denman, C. J., in delivering the judgment of the 
 court, says : " It is clear that declarations of third persons alive, in 
 the absence of any community of interest, are not to be received to afiect the 
 title or interests of other persons, merely because they are against the inter- 
 est of those who make them." 
 
 Such declarations, derogatory to the declarant's title, are admissible, 
 whether made verbally, (6) or in writing, (7) or by deed, (8) or in an answer 
 
 missible against Ms assig;nee. Booth v. Swezey, 4 Seld. 276. In Tousley v. Barry (16 N. 
 Y. Rep. 497) the same rule was applied, th« action being brought in the name of the assig- 
 nee of the executors of the mortgagee. The assignment in this case was made pending a 
 suit in favor of the executors, manifestly in order to exclude the declarations of the mort- 
 gagee. There is a distinction between the declarations and the acts of a former owner ; 
 for it is held, that entries in the books of a bank; and in the pass book of the maker of a 
 promissory note, payable at, and held by the bank, made while the bank was owner of the 
 note, are admissible to show that the note was paid to the bank, in a suit brought by a 
 party taking the note after it became due ; the note being payable at the bank, and the 
 maker having funds there when it became due, charging the note to the maker, was pay- 
 ment of tho note. Jermaine v. DenniBton, 2 Seld. 276. As to the effect of declarations by 
 a (former owner legally admitted to impeach his testimony ; See Savage v. Murphey, 8 
 Bosw. 75 ante, p. 820. 
 
 (1) See by Wightman, J., in Roberts v. Justice, 1 Car. & K. 94. 
 
 (2) 1 Bsp. 458. 
 (8) Vide infra. 
 
 (4) As was the case also' in Doe d. Hindley v. Rickarby, 5 Esp. 4. 
 
 (5) Phillips V. Cole, 10 A. & B. 111. 
 
 (6) Carne v. NiooU, 1 N. C. 480. 
 
 (7) Doe d, Baggaley v. Jones, 1 Camp. 367. 
 
 (8) Doe d. Daniel v. Coulthred, 7 A. & E. 235. 
 
BEc. VII.] Form of Declaration. 273 
 
 to a bill in chancery (1) ; but they must appear to relate to matters which 
 
 are within the declarant's own knowledge, or at least upon which he 
 
 *334 has *formed an opinion of his own. Where, therefore, a defendant, 
 
 in his answer to a bill in chancery, set forth what he had heard from 
 
 another person with respect to his title, without adding that he believed 
 
 such statement to be true, it was held by the House of Lords, confirming 
 
 the unanimous opinion of the judges, that the statement was inadmissible. (2) 
 
 In Peaceable v. WatsoUj^S) it was held, that in order to prove seizin of 
 
 certain premises in a particular individual, it was competent to ask a 
 
 witness, whether a deceased person, in occupation of the premises, had been 
 
 heard to say of whom he rented them. (4) 
 
 Declarations tending to incumber estate. There is another important 
 distinction to be borne in mind between those declarations which cut down 
 the title of the declarant, as in the instance of a party in possession stating 
 that he occupied as tenant, and those which would tend merely to incumber 
 the estate, such as the declaration of an occupier that the land was subject 
 to a particular easement. In the latter (jase, the declaration would not be 
 evidence against the owner; (5) upon the same principle that the acquies- 
 cence of a tenant in an easement enjoyed by another party, without the 
 knowledge of the landlord, would not be evidence against the' latter ; (6) 
 and it might be that the particular easement would be beneficial to the 
 occupier during his term, as in the case of a disputed right of way, if 
 the tenant kept a public house to which it led. (7) 
 
 (1) Trimelston (Ld.) v. Kemmis, 9 CI. & Fin. 779, 780. 
 
 (2) Id. 780, 784, 786. 
 
 (3) 4 Taunt. 16. 
 
 (4) See, also, HoUoway v. Rakes, cit. by Buller, J., 3 T. E. 55 ; Doe v. Green, 1 Gow. 
 227 ; Came v. NicoU, 1 N. C. 430. 
 
 (5) Soholes V. Chad wick, 2 Mo. & R. 507. And see by Patteson, J., in Tickle v. Brown, 
 4 A. & E. 378. 
 
 (6) See Daniel v. North, 11 East, 872 ; by Leblanc, J., Id. 375. ' See also Wood v. Veal, 5 
 B. & A. 454. 
 
 (7) By Lord Denman, C. J., in R. v. Bliss, 7 A. & E. 551. The declarations of a party in 
 possession under an agreement, are admissible against those claiming under him to show 
 the character of his possession and by what title he claims. Pitts v. Wilder, 1 Comst. 
 525. Where one of two tenants occupies under the other, his .declarations especially 
 when accompanied by acts while in possession, are admissible to show the character of 
 the possession which they both had in the premises. Sheldon v. Van Slyke, 16 Barb. 26. 
 In Burlingame v. Bobbins, (21 Barb. 327), which was an action to enforce the vendor's 
 lien upon land for the unpaid purchase money, the declarations of the deceased grantee 
 ■whUe in possession that he had given the plaintiff, the grantor, a note for a part of the 
 purchase money, were received in evidence against the defendant to whom the title had 
 been conveyed without consideration ; but the court per Marvin, J., intimate an opinion 
 that such declarations are not admissible to establish an incumbrance upon land conveyed 
 to a bona fide purchaser for value. See note 104, ante p. 314, 318 ; 4 John. K. 230 ; 1 
 Greenl. Ev. § 109. In Padgett v. Lawrence, (10 Paige 170), the chancellor holds the rule 
 well settled that no declarations of a former owner of property made after he had parted 
 with his interest therein or which are overreached by the purchase of the party claiming 
 through or under him, can be received in evidence to affect the legal or equitable title to 
 the premises ; and he excluded the declarations made in that case because they were 
 made after the docket of the judgment against him mider which the premises were pur- 
 chased. In Corbin v. Jackson, (14 Wend. 619), the declarations of the owner of lands 
 were admitted to show that he had given a power of attorney to convey the lands in ques- 
 tion, that its contents were as get forth in a deed of them and that it was afterwards 
 canceled, lost or destroyed. See note 446 and also Metcalf v. Van Benthuysen, 3 Comst. 
 424. 
 
 So, in regard to a question of dedication, the acts of a previous owner may be shown to 
 establish the fact of dedication ; and the use made of the premises may be shown to limit 
 and qualify the public right or easement acquired over the premises. Hunter v. Trustees 
 of Sandy Hill, 6 Hill R. 407 ; 18 Barb. 222 ; 19 Id. 179, 438 ; 19 Penn. 64 ; 7 Rich. 435 ; 
 2 Ohio (N. S.), 107. In the case of a lost deed, parol evidence may be given to establish 
 its existence, its contents, and the character of the possession clUmed under it ; but its 
 existence and execution must be clearly proved before such parol evidence can be received. 
 
 Vol. I. 35 
 
274 Debtor and Creditor Aoeount. [oh. viii. 
 
 It seems not to be sufficient that a declaration, in one or more points of 
 view, may he against interest, if it appear upon the whole that the interest 
 
 of the declarant would be rather promoted than prejudiced by the 
 *335 *declaration. Thus, in Outram v. Morewood,(l) which was an action 
 
 of trespass for breaking and entering a particular close, it became 
 material to identify the close (in which the dispute concerning the right of 
 digging coals arose), as being parcel of an estate, out of which certain rents 
 had been reserved in an ancient conveyance. The party who sought to do 
 this, produced the books of a person under whom he derived title to those 
 ancient rents, in which that person acknowledged the receipt of rents from 
 the person who had conveyed the close to the plaintiffs, which last men- 
 tioned rents corresponded with the rents that had been anciently reserved. 
 This evidence was held to be inadmissible by the Court of King's Bench. 
 It may be observed, even supposing, according to the authorities, that there 
 was reasonable probability of the entry being used against the maker, for 
 the purpose of proving the payment, still if it could be used by the repre- 
 sentative of the maker to prove title to the land, the entry might, upon the 
 whole, be in favor of the maker's interest. 
 
 Debtor and creditor account. But it is no objection to the admissibility 
 of a book containing an account, in which a deceased party has entered the 
 sums received by him, that on the opposite side he has entered payments 
 made by him, (2) even though it should appear .that the balance of the 
 account is in his favor, (3) for if the party who made the entries had been 
 alive, those entries in which he charged himself with receipts would have 
 been evidence against him, while those by which he discharged himself, 
 though as a portion of the whole account they could not have been 
 altogether rejected, would have been entitled to very little weight ; upon 
 the same principle that in a bill of particulars delivered by a plaintiff in a 
 cause, the items in which he gives credit are evidence against him, while the 
 items he puts forward as the ground of his claim do not at all operate in his 
 favor. 
 
 In the case of Clark v. 'Wilmot,(4) entries in the books of the deceased 
 
 and before it will be allowed to override a well establislied written title. Metcalf v. Van 
 Benthuyaen, 3 Comst. 434. So in the case of a lost will ; its execution having been proved, 
 it is competent for the party claiming under it to prove its contents by parol, and show 
 that it was read at a meeting of the heirs on the death of the testator, and acquiesced in 
 by the plaintiff's ancestor as a valid wUl. Fatherly v. Waggoner, 11 Wend. 599. See, 
 also, Dwight v. Bi-own, 9 Conn. 91-98. 
 
 (1) 5 T. R. 121. 
 
 (3) Rowe V. Brenten, 3 M. & R. 268. 
 
 (3) Williams v. Graves, 8 C. & P. 593. See, also, Doe d. Teynham (Ld.) v. Tyler, 4 M. & 
 P. 377. 
 
 (4) 1 y. & C. 53. 
 
 NoTB 105.^-The written receipt for money due on a judgment, signed by the deceased 
 attorney on record, was received between third persons (Thompson v. Stevens, 3 Nott & 
 M'Cord, 493) ; and to prove a party's diligence in collecting bonds, receipts for them signed 
 by a deceased counselor at law, were held admissible. Alston v. Taylor, 1 Hayw. 381, 395 ; 
 Hair v. Glover, 14 Ala. 500. We ^all see, post, note 107, that this rule, confining the 
 receipt of entries to the ground of tlfeir being against interest, is, except in South Carolina 
 and some few other states, swallowed up in the broader ground, letting in any entry made 
 in the usual course of the deceased's business. 
 
 But a mere charge for services in the book of the deceased, though a long time may 
 have since elapsed, cannot be used as evidence of payment. It seems that the evidence of 
 payment must be an actual entry ; and cannot, for the purposes of this kind of evidence, 
 be inferred from the lapse of time. Star v. Bradford, 2 Pennsylv. Rep. 384, 896, 397 ; 
 Richardson v. Kimball, 38 Maine, 468. See also Jermain v. Denniston, 2 Seld. 376. 
 
 (The entries of a deceased agent, made in the usual course of business as required by 
 his duty, his handwriting in the book being proved, and the book appearing, to the court, 
 on inspection, to have been fairly kept, are evidence of the facts stated. , Dow v. Sawyer, 
 89 Maine, 117. So, entries made by a clerk, since deceased, are admissible in evidence in 
 proof of the facts as stated ; they are received from the necessity of the case, and are. 
 
SEC. VII.] Mitries by Meeeutors, d;c. 276 
 
 *336 *solicitor of the defendant were admitted as evidence for the plaint- 
 iff in a hill of foreclosure, the entries heing to the effect that he 
 had received the mortgage money and paid it oyer to the defendant. It 
 appeared that by taking these items into the account between the defend- 
 ant and his solicitor, the latter would be to a slight amount a creditor of the 
 former; by rejecting them, he was a debtor. (1) 
 
 Entries of receipt of rent, made by a deceased executor, who had an 
 interest in land, have been held admissible evidence for a person claiming 
 the land under him, where the rent has been received and accounted for 
 by the deceased in his capacity of executor, the entries not having been 
 made by him in his character of landlord. (2) 
 
 Where certain entries of receipt of money, made by proctors, who were 
 members of an ecclesiastical corporation, were adduced in evidence by that 
 corporation, in a suit commenced by thera for tithes, it was held that the 
 proctors were interested against the entries, because they charged them- 
 selves with the whole amount, whereas, as members of the corporation, 
 they had only an interest in a proportionate share of the moneys 
 receivable. (3) 
 
 There is a very remarkable class of cases, according to which entries made 
 by a deceased parson, of the receipt of ecclesiastical dues, have been 
 *3 3 7 *received in favor of parties claiming the same interest which the maker 
 of the entries had. Thus, the books of a deceased rector or vicar have 
 beien frequently admitted as evidence for his successor. (4) After it had 
 been determined that evidence might be admitted of receipts of payment 
 entered in private books by persons not obliged to keep such books, nor to 
 account to any one for the sums received, it does not seem to have been 
 
 consequently, not admissible where that necessity does not exist. Brewster v. Doane, 3 
 Hill, 587 ; Bank of Monroe v. Culver, Id. 531. Preliminary proof must, of course, be given 
 to establish the necessity. Brown v. Harrison, 17 Ala. 774. The entries must be shown to 
 have been made in the course of his employment. Lockey v. Schreiber, 17 Mis. (3 Ben- 
 nett) 146. And they must appear to be proper matters of a book account ; they are not 
 evidence of a loan of money. Cole v. Dial, 8 Texas, 547 ; luslee v. Prall, 8 Zabr. 457. Nor 
 of three months' service, charged as one item. Henshaw v. Davis, 5 Cush. 145. ' See, also, 
 Earle v. Sawyer, 6 Cush. 143. And the books must appear to have been properly kept. 
 Kent V. Garvin, 1 Gray (Mass.), 148. Such preliminary proof is necessary to render the 
 evidence competent. See Den ex dem, Blair v. Miller, 3 Dev. 361. See notes 107, 108. 
 
 (1) In the marginal note to the case, it is stated that the entries were admitted as being 
 madjB in course of business, though not against the interest of the solicitor: but in Moore 
 v. Deardee (3 T. & C. 359, n.). Knight Bruce, V. C, said, that he had received the evidence 
 of the entries, on the ground that, upon the whole, they were against the interest of the 
 party who made them, and that the mere circumstance of some portion of them being in 
 the party's favor, would not render the evidence inadmissible. 
 
 (3) Spiers v. Morris, 9 Bing. 687. 
 
 (3) Short V. Lee, 3 J. & W. 464'. and a MS. ruling of Lord EUenborough, C. J., there 
 cited. Bursars' books have been received : Anon., Lord Raym. 745 ; by Holt, C. J., in 
 Smart v. Williams, Comb. 349 ; 13 Vin. Abr. 88. The general rule is, that corporation 
 books are not evidence for the corporation. Marriage v. Lawrence, 3 B. & A. 143 (which 
 related to an entry of payment). See also R. v. Debenham (Inhabs.), 3 B. & A. 185. See 
 Brett V. Beales, M. & M. 416 ; supra, as to where corporation deeds are receivable as evi- 
 dence of reputation. 
 
 (4) Armstrong v. Hewitt, 4 Price, 316 ; entries of payments for tithe hay : the books 
 are spoken of by the court as strong evidence. Parsons v. Bellamy, 4 Price, 190 ; where 
 the memorandum contained a long detail of facts incident to a receipt of payment of a 
 demand with costs, and the court said that the memorandum was admissible, bepause it 
 had the effect of making the vicar charge himself with the receipt of money, ^'alker v. 
 Holman, 3 Price, 171 ; where the receipts showed that the nloney payments were regu- 
 lated by the poor's rate. Perigal v. Nicholson, Wightw. 68 ; where a rector's entry in a 
 parish register was received. The entry was not of the receipt of money, buHTit was con- 
 sidered as abridging the vicar's rights, being a statement of moduses due. Lord Arundel's 
 Case, 13 Vin. Abr. 355, pi. 3 ; Drake v. Smith, 5 Price, 369 ; receipts of tithe money signed 
 by a vicar, in an entry purporting to be a terrier, contained in a book kept in the parish 
 chest. The evidence appears to have been admitted principally on the grpund of the 
 credit due to public books. 
 
276 Entries, Evidence of Facts [ch. vm. 
 
 contrary to principle to admit evidence of rectors' or vicars' books. For 
 the entries cannot be used by the parsons themselves, and there is no legal 
 privity of interest between them and their successors. Still there is, in 
 point of fact, commonly a strong leaniag in favor of the rights of the 
 church, and often a disposition to state those rights most favorably for 
 themselves (as indeed may be said of all declarants) in their own books. 
 It is rare, for example, to ^A a payment set down as for a modus, in the 
 books of , incumbents. In Parsons v. Bellamy, (1) the chief baron said, 
 •' As to vicars making evidence for their successors, that is what I cannot 
 listen to. This court knows they do not do so, and the books of a vicar 
 are as good evidence as the books of a steward." In Robinson v. William- 
 son, (2) it was said by Wood, B., that vicars' books, which are made by 
 and remain in the power of the party himself, are liable to a suspicion, 
 which cannot attach to receipts made by the person against whom they are 
 to be used. Although there be no privity between an incumbent arid his 
 successor, yet they stand in pari jure ; and in the case of admissions and 
 judgments, which are only evidence against parties and privies, successive 
 incumbents are, as far as concerns the admissibility of the evidence (though 
 not for the purpose of estoppel) regarded as privies. (3) The admission, 
 however, of the books of rectors and vicars, has been ttought an anomaly in 
 the law <j)f evidence, and various grounds have been assigned for it — such 
 as, the peculiar nature of tithes, the protection due to the clergy, and the 
 eursus scaccarii;{4:) and one learned judge has intimated an opinion, 
 *338 that *this species of evidence falls within the rule by which old leases, 
 rent-rolls, surveys, &c., were admitted. (5) General observations 
 have been occasionally used respecting the admission of rectors' or vicars' 
 books, which might be supposed to authorize the admission of any kind of 
 statement contained in them. But such books are not admissible, except 
 where the entries contain receipts of money or ecclesiastical dues, or where 
 they are in other respects apparently adverse to the interests of the makers, 
 in like manner as entries are so considered in analogous cases. (6) 
 
 The entry of a deceased lessee of an impropriate rectory, whose interest 
 had expired, has been held to be receivable in evidence. (7) And it is mani- 
 fest, that the entries of collectors of tithes stand upon the same footing as 
 those of other receivers and bailiffs. (8) 
 
 According to some authorities, though not of very great weight, the 
 doctrine, according to which entries in rectors' or vicars' books have been 
 held to be admissible in evidence, has been extended, by a supposed analogy, 
 to the case of the books of a lay impropriator. (9) The analogy, however, 
 
 (1) 4 Price, 190. 
 
 (2) 9 Price, 186. 
 
 (3) See by Tindal, C. J., in Madison v. Nuttal, 6 Bing. 226. 
 
 (4) See by Plumer, M. R., in Short v. Lee, 2 J. & W. 464 ; by Lord Kenyon, C. J., In 
 Outram v. Morewood, 5 T. K. 123 ; by Wood, B., in Perigal v. Nicholson, Wigbtw. 63 ; by 
 Price, B., in Woodnorth v. Cobliam (Lord), 2 Gwlll. 653 ; by King, C. J., Vin. Abr. tit. 
 Evidence, T, b. 73, in the first trial of the case of Le Gros v. Levemore, Qwill. 59 ; 1 E. & 
 Y. 521. Lord Ellenborough, C. J., in Roe d. Brune v. Rawlins (7 East, 290), puts the admis- 
 sibility of vicar's books simply on the ground of absence of interest. In Short v. Lee 
 (2 J. & W. 464), the master of the rolls refers to the analogous dcciaions respecting pre- 
 scriptions in non decimandOj when set up against lay impropriators. See also by Lord 
 Hardwicke, in Glynn v. The Bank of England, 3 Ves. 43. 
 
 (5) By Parke, B., in Stobart v. Dryden, 1 M. & W. 617. As to the admissibility of these 
 last mentioned document^ mde supra. 
 
 (6) See Ward v. Pomfret, 5 Sim. 475. 
 
 (7) Illingworth v. Leigh, Gwill. 1615 ; 3 E. & Y. 1385. 
 
 (8) Jones v. Waller, Qwill. 847; Short V. Lee, 2 J. & W. 490; Woodnorth v. Cobham 
 (Lord), Bunb. 180 ; BuUen v. Michel, 2 Price, 399 ; Morgan v. Tyler, cited in Short v. Lee, 
 a J. & W. 464 ; Finch v. Messing, cited Id. 
 
 (9) Anon.i Bunb. 46 ; Anon., Vin. Ab. tit. Evidence, T, b. 73, T, b. 117. See observations 
 on these cases by Plumer, M. R., in Short v. Lee, 2 J. & W. 464. It has been suggested, 
 
BEc. vii.J Immediately connected therewith. 277 
 
 entirely fails, so far as the doctrine in question may be considered as depend- 
 ing on the circumstance that the entries are against interest ; inasmuch as 
 they are available for the representatives of the party making them.(l) In 
 the case of Short v. Lee,(2) the master of the rolls was of opinion, that 
 entries in the books of an ecclesiastical corporation aggregate, entitled to a 
 rectory, were admissible evidence for the corporation in suits for tithes 
 brought by them. (3) • 
 
 Ihtries against interest need not be cotemporaneous with facts. Entries of 
 this description, namely, such as are against the interest of the party 
 *339 making them, are not necessarily required to be made *cotemporane- 
 ously with the fact of which the entry is made ; but they are admis- 
 sible though made at a subsequent period. (4) And in this respect it will 
 be seen they differ from those entries which are admissible as having been 
 made in the course of any duty or employment. (5) 
 
 It is a question of considerable importance, how far declarations against 
 interest are receivable in respect of matters forming a part of the declara- 
 tions and connected therewith, but npt in themselves affecting the interest 
 of the declarant. 
 
 Where declarations of deceased persons, acknowledging the receipt of 
 money, have been admitted, it appears that they have often been, admitted 
 as evidence, not merely of the fact of the deceased having received the 
 money, but also of the circumstances stated as the occasion of the pay- 
 ment. (6) 
 
 In Warren v. Greenville,(^) upon a question whether a surrender to a 
 recovery could be presumed, the book of a deceased attorney was produced, 
 which contained a charge of a sum for suffering a recovery, two items 
 of which related to the drawing of a surrender; and it appeared by the 
 book that the bill was paid. The court held that the entries were admis- 
 sible evidence, and material Upon the inquiry into the reasonableness of 
 presuming a surrender. 
 
 In Stead v. Heaton,(8) the principle of the admissibility of declarations 
 aga,inst interest, for the purpose of proving everything contained in them, , 
 was carried still further, and it has been said, to the extreme verge of the 
 law. (9) In that case, \yhich respected the existence of a customary pay- 
 ment for the reparation of a parish church, churchwardens' accounts were 
 produced, in which were the following entries : "Received of Haworth, who 
 this year disputed this our ancient custom, but after we had sued him, paid 
 it accordingly ; 8l. and II. costs ; " and, at the head of the same page, was 
 written : "It is an ancient custom thus to proportion church-lay ; 1st. The 
 chapelry of Haworth pay one-fifth, Bradford a third of the remainder, and 
 
 Id., that the oases in Bunbury and Viner relate to the same suit, — that the case in Bun- 
 bury is the report of the trial at Nisi Prius, — and the case in Viner a note of the hearing 
 in the Exchequer. 
 
 (1) They fall precisely witlun the rule laid down in Outram v. Morewood, iupra, p. 335. 
 
 (2) iaJ. &W.464. 
 
 (3) The master of the rolls expressed himself strongly in favor of another ground, 
 which was sufficient for the admission of the evidence. 
 
 (4) By Parke, B., in Doe d. Patteshall v. Turford, 3 B. & A. 898 ; by Plumer, M. R., in 
 Short V. Lee, 3 J. & W. 475. 
 
 (5) Vide infra. 
 
 (6) See the cases collected in the note to Barker v. Ray, 2 Russ. 67. 
 
 (7) 2 Str. 1129. Independently of the credit due to the collateral statement, there was a 
 presuniption that the surrender must have been made before the money was paid. See 
 observations on this case by Lord Mansfield, C. J., in Goodtitle v. Chandos (Duke), 2 Butt, 
 1071 ; and remarks of Lord Ellenborough, C. J., upon both cases, in Higham v. Ridgway, 
 10 East, 117. 
 
 (8) 4 T. R. 669. See further, concerning entries in churchwardens' books, Cooj^e y. 
 Banks, 2 C. & P. 481. 
 
 (9) By Alderson, B., in Knight v. Waterford, 4 T. & C, Exch. 294. 
 
278 MUries, M)idence of Fotcts [ch. vui. 
 
 the rest to be legally divided according to the churchwardens of the several 
 other townships in the parish." The court were of opinion, that the entry 
 of payment was clearly admissible, because the officers thereby 
 *340 charged themselves with the receipt ; and that the *other entry was 
 admissible, because immediately referred to ; and that both of them, 
 being written on the same page and on the same subject, must be taken into 
 consideration together; that they were both parts of one and the same 
 transaction, each explaining the other. (1) 
 
 In Barry v. Bebbington,(2) upon a question of the soil and freehold of 
 the defendant, entries by a deceased steward, of a person under whom the 
 plaintiff claimed, acknowledging the receipt of moneys on account of tres- 
 passes committed on the place in dispute, were held to be admissible 
 evidence to disprove the defendant's title, and to establish that of the 
 plaintiff. 
 
 In Higham v. Ridgway, (3) which is considered as a leading case upon 
 this subject,(4) upon a question respecting the age of a person, an entry, 
 made by a deceased accoucheur in his book, of having delivered a woman 
 of a child on a certain day, referring to his ledger,' in which he had made 
 a charge for his attendance, and marked the charge as paid, was held 
 admissible evidence of the time of the child's birth. Lord EUenborough, 
 C. J., said : " It was idle that the word paid only should be admitted in 
 evidence, without the context, which explains to what it refers. We must, 
 therefore, look to the rest of the entry, to see what the demand was, which 
 he thereby admitted to have discharged. By the reference to the ledger, 
 the entry there is virtually incorporated with, and made a part of the other 
 entry, of which it is explanatory." Lord Kenyon, C. J., in another case,(5) 
 in speaking of the evidence of stewards' books, observes, that " such books 
 may be read, not only to charge the steward with the amount, but to show, 
 on behalf of the tenants, that rents have been received, and also to show, 
 in cases where it might become a question, what kind of rents were payable 
 out of particular estates." 
 
 In Doe d. Reece v. Rob8on,(6) on a question whether a lease had really 
 been granted in possession, and not in reversion, entry of charges in an 
 attorney's book, showing the time when a certain lease was prepared, and 
 which charges were shown (as it would seem by the same book) to have 
 been paid, were held to be evidence, after the attorney's death, that the 
 lease was prepared subsequently to the time when it bore date, and at a 
 period when it would have been a lease in possession. It has been observed, 
 that in such cases of entries in the books of deceased attorneys, the entries 
 do not deserve much additional credit from the circumstances of the 
 *341 fact of payment being added. For it would not be probable that *ficti- 
 tious instructions would, without an assignable motive, be inserted 
 in the attorney's book ; or if such motive existed, the adding of the fact of 
 payment would not remove the suspicion attached to the entry. In Ship- 
 with V. Shirley, (7) where an attorney's book was adduced, along with other 
 evidence, in proof of a lost deed, it does not appear that the charges were 
 entered as paid. (8) 
 
 (1) See also Exeter (Mayor, &c.) v. Warren, 5 Q. B. 778 ; Musgrave v. Emerson, L. J. 
 (N. S.) Q. B. 176. 
 
 (2) 4 T. B. 514. 
 
 (3) 10 East, 109. For other instances, see Eoe d. Bruue v. Rawlins, 7 East, 291 ; Doe 
 d. Powell v. Hill (cited by Taunton, J., in Chambers v. Bernasconi, 1 C., M. & R. 847). 
 
 (4) See 2 Smith Lea. Ca. 194. Anns v. Middleton, 23 Barb. 571. 
 
 (5) Calvert v. Canterbury, (Abp.), 2 Esp. 646. 
 
 (6) 15 Bast, 33. 
 
 (7) 11 Ves. 65. 
 
 (8) See also Blackelor v. Crofts, Comb. 348 ; 13 Vin. Abr. 85. 
 
SEC. VII.] Immediately connected therewith. 279 
 
 In the case of Marks v. Lahee,(l) an entry of tender and refusal of money, 
 made by a deceased clerk of an attorney, in a day-book, kept for the pur- 
 pose of entering hia •daily transactions, was held to be admissible evidence 
 to prove the tender ; its admissibility was rested on the ground of its 
 showing that the clerk had received the money and had not disposed of it 
 according to his instructions, — so that it rendered him subject to a pecuniary 
 demand. 
 
 In the later case of Davies v. Humphreys, (2) E. H., W. D. and J. H. had 
 given their joint and several promissory notes to J. E. for 300?. W. D. 
 having afterwards paid J. E. 280?. on account of the note, the latter made 
 the following indorsement iipon it : — '^Received of W. D. the sum of 280?. 
 on account of the within note, the SOOl. having been originally advanced; to 
 E. W An action having been brought by W. D., who had paid the 
 whole amount due, against J. H., to recover contribution from him "as a 
 co-surety," it was held that the indorsement was admissible in evidence, to 
 prove not only the payment of the 280?., but also that the money was 
 advanced to E. H. as principal. Parke, B., lq giving the judgment of "the 
 court, said : " Certainly, if this point were now for the first time to be 
 decided, it would seem more reasonable to hold that the memorandum oi 
 a receipt of payment was admissible only to the extent of proving that a 
 payment had been made, and that it would have the same eifect that jiroof 
 by parol of like payment would have had. In the case of stewards' books, 
 the receipts of money as rent would be equivalent to the proof of payment 
 of money as rent, and establish the title of the person receiving it, and the 
 like. But the authorities have gone beyond that limit, and the entry of a 
 payment against the interest of the party making it, has been held to have 
 the effect of proving the truth of other statements, contained in the same 
 entry and connected with it." His Lordship, after referring to Higham v. 
 Ridgway, Doe d. Reece v. Robson,(3) and other cases, continued: "With- 
 out overruling those cases (and we do not feel ourselves authorized to do 
 so), we could not hold the memorandum in question not to be admissible 
 evidence of the truth of the whole statement i^i it, and consequently 
 *342 to be evidence, not merely that 280?. were paid by the *plaintiff 
 (W.. D.) to the payee (J. E.), as for a debt due from E. H. as prin- 
 cipal, but also of the fact that the debt was due from E. H. to him. (4) 
 
 It has been held also, that an entry made by a parish sexton in a book, 
 which, under a private act of Parliament, he was required to keep, for the 
 purpose of entering burials and the burial fees, was admissible in evidence 
 in order to prove the residence of a party at the time of his decease. (5) 
 
 There are two Nisi Prius cases, however, which appear to be in opposition- 
 to this current of authorities. In Doe d. Gallop v. Vowles,(;6) Littledale,. 
 J., refused to admit a deceased tradesman's bill for repairs, with his receipt 
 thereon, as evidence of the work having been done for the person charged, 
 though the document was found among the other papers of the latter. His 
 Lordship said the cases had gone quite far enough, and there would be no 
 limit, if such a paper as tHe one under discussion were admitted. And in 
 Doe d. Haden v. Burton, (7) Gurney, B., rejected entries in the books of a 
 deceased tradesman, contaming charges for building a cottage, and showing 
 that they had been paid by the lord of the manor. 
 
 (1) 8 N. C. 408. 
 (3) 6 M. & W. 153. 
 
 (3) TJt mpra, p. 340. 
 
 (4) 6 M. & W. 166. 
 
 (5) Lloyd V. Wait, 1 Phill. 65. 
 
 (6) 1 Mo. & R. 261. 
 
 (7) 9C.&P. 354. 
 
280 Entries as to Facts. [ch. viii. 
 
 On the other hand, Lord Denman, C. J.,(l) and Parke, B., (2) on two 
 different occasions, appear to have admitted similar entries ; and the latter 
 learned judge is reported to have said, that he considered the case of Doe 
 d. Gallop V. Vo-wles(3) to be contrary in principle to Higham v. Ridgway. 
 (4) It may also be remarked, that receipts appear to be much less objec- 
 tionable testimonies than entries in private books, from the circumstance 
 of their having been given to persons interested to preserve them as evi- 
 dence against the makers. With regard to the case of Higham v. Ridg-way, 
 however, it is to be observed, that the work, done, for which the entry of 
 charges was marked " paid," was proved by other evidence than the entries, 
 and that this fact is relied on by Lord Ellenborough, C. J., in giving judg- 
 ment. (5) 
 
 Entry, whether evidence of collateral facts. But there is a distinction 
 between cases where the admission against interest is part of one entire 
 transaction with the rest of the declaration (as in the instance of stewards' 
 entries, where the entry would have no meaning, unless the whole of it was 
 read), and cases where declarations embrace matters perfectly colla- 
 *343 teral. This point was discussed in the case of *Chambers v. Bernas- 
 coni,(6) where one of the questions was, whether the certificate of a 
 capture by a sheriff's officer, stating the place of arrest, was evidence that 
 the plaintiff had been arrested at the place stated. Bayley, B., expressed 
 his ojpinion, that supposing the certificate was admissible for any purpose 
 (as being a declaration against interest, or rather as made in the course of 
 official duty), it was not admissible to prove t\i& place of arrest. 
 
 In the case of Rudd v. WrightjC?) a survey was tendered in evidence, 
 which had been made for the use of Trinity College, Cambridge, the 
 impropriators of a living, of which the plaintiff was vicar, and in this 
 
 (1) In E. V. Hendon (Inliabs.), cited 9 C. & P. 255. 
 
 (2) In E. V. Lower Heyfoid (Inhabs.), cited 2 Smith Lea. Ca. 194, n. 
 
 (3) lit supra. 
 
 (4) Ut supra, p. 340. 
 
 (5) See 1 Mo. & E. 262, n. 
 
 (6) 1 C. & J. 456. See the decision on the same case in the Court of Errors, infra. See 
 also Manning v. Clement, 7 Bing. 393 ; Willis v. Bernard, 8 Bing. 376. And the cases of 
 confessions of prisoners put by Park. J., 8 Bing. 484 ; Salte v. Thomas, 8 B. & P. 188 ; 
 where a prison-book was held admissible to prove the period of commitment and discharge 
 of the prisoner, but not the cause of commitment. 
 
 (Though entries be admissible in evidence, as to prove a book account, they do not 
 supersede the necessity of proving such collateral facts as will render them sufficient to estab- 
 lish the disputed allegations. Thompson v. Porter, 4 Strobh. Eq. 58. In ejectment, surveys 
 are admissible to prove the extent of possession (Brugin v. Chevanet, 9 B. Mon. 385) ; but 
 a memorandum indorsed on a field-book by the surveyor, it not being made by him in the 
 discharge of his duty, is not admissible to prove tKe death of a third person at a given 
 time. Eidgetey v. Johnson, 11 Barb. 537. Nor are tie minutes of a surveyor of lumber, 
 who is under no obligation to keep a record of his sorveys, evidence of the facts stated in 
 them (Ayer v. Sawyer, 32 Maine, 163) ; though such minutes may be used by hiin in estab- 
 lishing his claim for the scirvices. Witherell v. Swan, 33 Maine, 247. But the account 
 books of a party cannot be used by the party producing them to prove collate*a facta 
 (Batchelder v. Sanborn, 3 Foster (N. H.), 325 ; though they may be used by the opposite 
 party to prove payment and other collateral matters. Lewia v. Dille, 17 Mis. (2 Bennett) 
 64 ; 15 Mis. 105 ; Winants v. Sherman, 8 Hill, 74 ; 7 Barl?. 107 : Low v Pavne 4 Comst 
 247 ; Dewey v. Hotchkiss, 30 N. Y., 497. ■ J > 
 
 In the case of a negotiable note, we have seen that the declarations of a prior holder 
 «annot in this state be shown in evidence against a party taking the same after its 
 maturity (Paige v. Cagwin, 7 Hill, 384) ; but where a bank is the holder of a note payable 
 at its counter, the maker being a customer of the bank, and having on deposit a sum more 
 than sufficient to meet the note, and the note is actually charged to the maker when it 
 becomes due, and charged against him on writing up his pass-book, these entries of 
 acts done may be shown in evidence against a person taking the note after it became due. 
 Jermain v. Worth, 5 Denio, 342 ; S. C, 2.Selden E. 27C), as to the effect of declarations of 
 * former owner admitted to impeach his testijacaiT ; See Savage v. Murphy, 8 Bosw 75 
 
 (7) 4 Y. & C, Exch. 294. 
 
SEC. VII.] Declarations where other Proof Attainahle. 281 
 
 Burvey certain closes were stated as being titheaWe to the vicar. ^ Lord 
 Lyndhurst, C. B., observed, that although this document would be evidence 
 against the college in a suit between them and the vicar, it would admit of 
 some consideration whether it was admissible in evidence against a third 
 person ; but that it was unnecessary to decide that question, because the 
 object of producing the survey in evidence arose out of a marginal note to 
 the survey. He thought the marginal note could not be received in evidence, 
 inasmuch as it was in the nature of a collateral and incidental observation, 
 made by the person who framed the survey ; and that it did not follow, 
 because a document is received in evidence, in which there are entries 
 *344: against the interest of a party, that therefore collateral and *inde- 
 pendent matter, which is not a necessary part of such entries, ought 
 to be received. 
 
 In the case of Knight v. The Marquis of Waterford,(l) the accounts of a 
 deceased steward were tendered in evidence, for the purpose of showing the 
 liability of former lords of the manor to pay poor-rates on the tithes. On 
 one side of these accounts, the steward had acknowledged the receipt from 
 a tenant of rent for tithes ; on the other side was an entry in discharge of 
 the former item, by allowing the tenant a certain sum for poor-rates on the 
 tithes. This second entr^ was rejected, on the ground that it was not 
 directly connected with the first ; but Alderson, B., added, that if the amount 
 charged had been stated to be a sum less the deduction of the sum on the 
 opposite side of the account, it might then possibly have been admissible, 
 on the authority of Stead v. Heaton.(2) 
 
 In order to render declarations against interest available, it is not essen- 
 tial that the deceased person, who made the entries, should have been a 
 competent witness, whilst living, to prove the facts contained in the decla- 
 ration. (3) This was expressly ruled in the case of Short v. Lee, (4) where 
 the entries of a deceased member of an ecclesiastical corporation were 
 admitted on behalf of that corporation in a suit brought by them for tithes. 
 In that case the person who made the entries would (before Lord Denman's 
 Act) have been incompetent to have been examined in favor of the corpora- 
 tion, on the ground of being a party to the suit. 
 
 The declarations of deceased persons against their own interest are not 
 
 the less admissible in evidence, because the facts to which the decla- 
 
 *345 rations *relate, may be proved by evidence of another kind — as, 
 
 (1) 4 Y. & C. 283. 
 
 (2) JJt mpra, p. 339. See also Doe d. Kinglake v. Beviss, 18 L. J. (N. S.) C. P. 128. 
 
 (3) In Warren v. Greenville (2 Str. 1129, cited supra, p. 339), it was said by the court, 
 as a reason for receiving an attorney's bookS; that he inight have been examined if living, 
 and his books were, after his decease, the best evidence. A similar qualification of the 
 rule is reported to have been laid down by Bayley, B., in Higham v. Ridgway (10 East, 
 109) ; but none of the other judges advert to it. And in Gleadow v. Atkin (I C. & M. 433), 
 Bayley. J., repudiates the doctrine that declarations cannot be received, except where the 
 declarant might*liave been examined in his lifetime, and doubts whether he ever used 
 the expressions attributed to him in Higham v. Ridgway. His Lordship refers to Searle 
 V. Barrington (Lord), 2 Stra. 836 ; S. C, 8 Mod. 279 ; 2 Lord Raym. 1370 ; Bosworth v. 
 Cotchett, infra; Doe d. Reece v. Robson, 15 East, 32 ; and Middleton v. Melton, 10 B. & 
 C. 336, as showing that no such qualification exists. See the observations of the master 
 of the rolls in Short v. Lee, 2 J. & W. 464. See also an argument relative to this point 
 in Barker v. Ray, 2.Russ. 71. 
 
 (4) 2 J. & W. 464. 
 
 The rule admitting entries in evidence is not foimded upon the ground that the party 
 making them would, if living, be a competent witness to prove the facts so entered ; for 
 such entries are often admitted, as in proving an account where the party mailing them 
 was not a competent witness. And such entries have been admitted where the person 
 making them has become insane. Holbrook v. Gay. 6 Cush. 215. In case of death. 
 Rembert v. Brown, 14 Ala. 360. See. also, Bradley v. James, 22 Eng. Law & Eq, 14. But 
 a list of debts, made by deceased, and purporting to contain them all, is not evidence to 
 show that he did not owe a particular debt not named. Harrison v. Cordle, 22 Ala. (N. 
 S.) 457. 
 
 Vol. L 36 
 
282 Froof of Declarants Situation. [ch. viii. 
 
 for instance, by a living -witness. This rule may he founded, partly on 
 the great credit due to declarations against interest, and partly on the incon- 
 venience of proving the failure of other evidence. It was held, in Middleton 
 V. Melton,(l) that the entry made by a deceased collector was proof of the 
 fact of the money having been paid, without calling the persons who. paid 
 it, or showing that they were dead. And it appears from the facts of earlier 
 cases, that the same understanding of the courts as to this point is to be 
 implied from them. (2) 
 
 In order to use in evidence entries made by agents .for others, on the 
 ground of having been made against interest, it will, in general, be neces- 
 sary to show, by testimony dehors the entries, that the person making the 
 entry was in the situation in which he purports to be. The character, of 
 the party making the entry must be established before the entry is read. (3) 
 But there is a distinction where the office of the party making the entry is 
 of a public character — in which case the law will presume that a party 
 acting in that capacity has been properly appointed (4) — and where the 
 entry is made by an agent of a private individual ; in this case, proof of 
 the agency will be required before the entry can be admitted. 
 
 Thus, in the case of Short y. Lee,(5) account-books from the possession 
 of a corporation entitled to an impropriate rectory, purporting to be 
 accounts of their collector of tithes, were received, without proof aliunde, 
 - that the accounting party was really the collector^ on the ground that, by 
 the charter of the corporation, it was their duty to appoint proctors to 
 receive the tithes, and a corporation could not have received the tithes 
 themselves. The point was said to be dissimilar to that decided in regard 
 to collectors of incumbents in general, they being persons whose, character 
 depends on the pleasure of a private individual, who might or might not 
 appoint. But in the same case, where the accounts of a tithe col- 
 *346 lector to *au incumbent were produced in evidence, it was held to 
 be necessary to prove aliunde, that the person whose book was 
 produced was authorized to collect the tithes. (6j And it seems that the 
 mere antiquity of the book in which the entry is made will not dispense 
 with the necessity for this preliminary proof of agency,(7) although where an 
 account-book is produced from the proper custody, very slight proof, that the 
 party filled the alleged character, will be sufficient, and where the internal 
 evidence is very strong, suchj proof may be altogether dispensed with. (8) 
 
 (t) 10 B. & C. 317. And see Poole v. Dicas, 1 N. C. 653, infra. 
 
 Where a clerk and agent dictates a letter to accompany a consignment of goods, iho 
 letter may be shown in evidence without calling the clerk, though he be present in court. 
 WoUenweber v. Ketterlinus, 17 Penn. State E. 389. It is a part of the transaction. Van 
 Eensselaer v. Morris, 11 Paige, 13. 
 
 (2) See observations of Parke, J., in Middleton v. Melton, 10 B. & C. 838. In the case 
 of Barry v. Bebbington (4 T. R. 514), which was tried in 1791, one of the memoranda was 
 a receipt of a sum of money in 1785. 
 
 (3) See by Lord Lyndhurst, C, and Bayley, B., in Davies v. Morgan, 1 C. & J. 590. 
 Note 106. — So, where the receipt, entry, &c., is given in evidence as part of the res 
 
 gestm, by the principal, to charge the surety, it must be proved to be genuine, in the usual 
 mode of proving papers. Bernard v. Oommonwealth, 4 Litt, 148, 151. See Hagaman v. 
 Staiford, 3 Blackf. Rep. 351 ; Den ex dem. Blair v. Miller ; Suavely v. M'Pherson, 5 Har. 
 & John. 150, 151, 154. 
 
 (The agency must be first shown, and after that, the acts of the agent in the execution 
 of the business intrusted to him are the acts of the principal. 3 Hill, 531. But the acts 
 must appear to be a part of the transaction. Bailey v. Wakeman, 2 Denio, 330 ; S. C, 3 
 imi, 379.) 
 
 (4) Vide Post, ch. 9, § 1. 
 
 (5) 2 J, & W. 464. 
 
 (6) See also Carrington v. Jones, 3 Sim. & Stu. 135, 140 ; Perigal v. Nicholson, Wightw. 
 63. 
 
 (7) Manby v. Curtis, 1 Price, 325 ; Davies v. Morgan, 1 C. & J. 590 ; Short v. Lee, 3 J. 
 & "W,. 464, 466. 
 
 (8) See Brune v. Thompson, C. & Marsh. 84. 
 
SEC. VIII.] Mitries made in the Course of Business. 283 
 
 In Doe d. Webber v. Lord George Thynne, (1) upon a question whether 
 certain ancient books, produced from the archives of the Dean and Chapter 
 of Exeter, were the books of receivers debiting themselves with the receipt 
 of money, and on that account admissible in evidence, it was held, that the 
 similitude which the entries bore to the books of receivers of the Same body 
 in modern times, was not a safe and adequate ground for presuming that 
 the ancient books were kept by persons of the same character and descrip- 
 tion, and accounted upon as such. But, on its appearing that some of the 
 entries in the ancient books (not relating to the matter in question) imported 
 that one A. B. was therein accounting to the dean and chapter for money 
 paid to himself, with the receipt of which he therein debited himself in 
 such forms as solvit mihi, solvit per n^, the court thought that this was 
 strong internal evidence that the books ^ere actually receivers' books. (2) 
 
 Mitries, when sufficient. It will be no objection to the admissibility of 
 an account in which a deceased person charges himself with the receipt 
 of money, that such account does not show for whom the money was 
 received, provided that fact can be established by other(,proof.(3) 
 
 Entries against interest will be admissible if wfitten wholly or in part by 
 the party charged, though not signed by him; (4) so if they are signed 
 by him, though written by another person,(5) or even if they were neither 
 written nor signed by the party himself, provided it can be proved that they 
 were made by his authorized agent, or were adopted by himself, as in the 
 case of accounts delivered by a steward at an audit. (6) And even 
 *347 *if the party who actually made out the accounts be alive, it is not 
 necessary that- he should be called as a witness, though his non-pro- 
 duction may be matter of observation to the jury. (7) 
 
 But in the absence of some proof of agency, entries charging a deceased 
 party will not be receivable. Thus, in the case of De Rutzen v. Farr,(8) it 
 was held, that accounts of rent, signed by a person styling himself clerk to 
 a steward, but not shown to have been employed by such steward, otherwise 
 than by the accounts themselves, were not evidence to prove that the rent 
 had been received. 
 
 The handwriting of a deceased party, charging himself, need not, however, 
 be proved, after the lapse of thirty years, provided the book containing the 
 entries be produced from the proper custody. (9) * 
 
 SECTION vm. 
 
 Eceeption to the General Ride as to Hearsay, in Cases where Declarations 
 or Entries have been made in the Course of Office or Business. 
 
 From the observations of several judges on various occasions, it might 
 seem that where there is a competency of knowledge, or at least peculiar 
 means of knowledge in an individual making a declaration, and a total 
 absence of interest to pervert the facts to which he has spoken, his declara- 
 tions would be admissible evidence after his death, even though the decla- 
 
 (1) 10 East, 208. 
 
 (2) See also Exeter (Mayor) v. Warren, 5 Q. B. 773. 
 
 (3) Bowe v. Brenton, 3 M. & R. 268, 370. 
 
 (4) Barry v. Bebbington, 4 T. R. 514 ; Rowe v. Brenton, 3 M. & R. 367, 369 ; Doe d. 
 Bodenham v. Colcombe, C. & Marsh. 15.1 
 
 (5) Doe d. Litchfield (Earl) v. Stacey, 6 C. & P. 139. 
 
 (6) Doe d. Graham v. Hawkins, 3 Q. B. 313 ; Exeter (Mayor) v. Warren, 5 Q. B. 773 ; 
 Doe d. Sturt v. Mobbs, C. & Marsh. 1. 
 
 (7) See by Patteson, J., in Doe d. Graham v. Hawkins, 3 Q. B. 217. 
 
 (8) 4 A. & E. 53. 
 
 (9) Wynne v. Tyiwhitt, 4 B. & A. 376. See also Exeter (Mayor) v. Warren, 5 Q. B. 773. 
 
284 Entries made in the [en. viii. 
 
 ration did not operate against his interest. (1) But these observations are 
 too loose, and too much at variance with the principle of the cases which 
 have been just considered, to be regarded as establishing any rule less rigid 
 than that above laid down, which requires the declaration to be against the 
 interest of the person making it, before it can be received in evidence. 
 
 Declarations, Entries, &c., made in the ordinary coierse of btisiness. There 
 can be no doubt, however, that a rule exists, which allows of written entries 
 made by deceased persons being received in evidence, even though not 
 
 made against their interest, provided that, in addition to a peculiar 
 *348 and personal knowledge of ,^he facts, and the absence of all *intereBt 
 
 to pervert them, the entries appear to have been made in the ordinary 
 course of official, professional, or otner business or duty, and to have been 
 immediately connected with the transacting or discharging of such business 
 or duty, and to be cotemporaneous with the transaction to which they 
 relate ; and it appears that upon general principle there is no sound distinc- 
 tion between written entries and verbal declarations made under such cir- 
 cumstances. (2) 
 
 (I) See by Lord Bllenborough, C. J., in speaking of vicars' books, in Roe d. Brune v. 
 Rawlins, 7 Bast, 390 ; by Bayley, B., on the principle of this case, in Qleadow v. Atkin, 1 
 C. & M. 420. See also by Lord Ellenborongh, C. J., in Doe d. Reece v. Robsou, 15 East, 
 34 ; by Le Blanc, J., in Higham v. Ridgway, 10 Easti 130. But subsequent authorities 
 have treated the case of Higham v. Ridgway, as decided on the ground of interest ; by 
 Littledale, J., and Park, J., 10 B. & C. 326, 337 ; by Lord Lyndhurst, C. B., and Bayley, B., 
 1 C. & J., 456, 457 ; by Bayley, B., 1 C. & M. 420. 
 ' (8) Vide swpra, p. 304. And see by Lord Campbell, C, in the Bussex Peerage Case, 11 
 CI. & Pin. 1 13. 
 
 Note 107.^ We have seen, by various cases in note 78, ante, and in other pla<!es, and 
 may see farther, by cases which we shall here cite, that all memoranda, entries, ex parte. 
 affidavits, certificates, receipts, accoants stated, or other papers framed by private persons, 
 are of themselves mere naked hearsay. They are, therefore, never allowed to possess any 
 intrinsic force, as proof against third persons (Steel v. Duncan, 2 Yeates, 113 ; Den ex 
 dem. Bickliam v. Pissant, 1 Coxe, 220; Newson's Adm'r v. Douglas, 7 Harr. and John. 
 417,, 438 ; Treat v. Barber, 7 Conn. Rep. 274, 278; Philadelphia Bank v. Officer, 12 Serg. 
 & Rawle, 49 ; Ridgway v. Farmers' Bank of Bucks Co., 12 Serg. & Rawle, 256 ; Chase v. 
 Smith, 5 Verm. Rep. 556) ; though we have also often had occasion to see that these, or 
 any other declarations, may be made evidence by the intervention of some extrinsic cir- 
 cumstance. We come now to consider how far the written declarations of third persons, 
 who are merely indifferent and totally disconnected with the party, may be received to 
 affect hipa upon the mere circumstance that the writer is dead at the time when the 
 declaration is offered. Heretofore we have seen that the receipt of such papers turned 
 much upon the notion that the entry was at the time against the interest of the party 
 making it. And the last case stated in the text, takes the distinct ground that the entry 
 would not charge the servant ; and therefore it was not within Lord Torrington's Case. 
 With how much propriety that ground can be retained by the English courts, as being 
 consistent with Lord Torrington's Case, will be seen by the remarks of our author, as weS 
 as by Evans v. Lake, and some other kindred cases stated in the text. One of them 
 (Hagedorn v. Reid), surely maintains no such principle ; and this is not the only Jinglish 
 case allowing the entry of a deceased person as evidence, merely because it was done in • 
 the usual course of his business. In Doe ex dem. Patteshall v. Turford (3 Barnw. & 
 Adolph. 890), the indorsement of a memorandum of service upon the tenant, on the 
 duplicate of a notice to quit, appeared to be in the handwriting of a deceased attorney. 
 And, it being proved that such indorsement was in conformity to the usual practice of his 
 office ; that he prepared it himself, and took it with him on going out with two similar 
 notices prepared at the same time, and returned, having indorsed the two other cor- 
 responding duplicates in the same way; and that the other two notices were served on 
 the same occasion ; although such services were usually performed by his clerks, the 
 memorandum on the duplicate of the notice in question was allowed, with the other 
 circumstances, as sufficient proof that it had been also served. See also per Parker, C. J., 
 in Welch v. Barrett, 15 Mass. Rep. 384 ; and the remarks of the Lord Chancellor in Barker 
 V. Ray, 3 Kuss. 63. 
 
 But however Lord Torrington's Case may have been considered by the English courts, 
 it has generally been treated by our own according to its more obvious principle ; not only 
 as letting in all books of account kept by a deceased clerk, but all other entries or memo- 
 randa made in the course of business or duty, by any one who would at the time have 
 
SBC. viii.J Course of Business. 285 
 
 been a competent witness to the fact which he registers. Welch v. Barrett, 15 Mass. Eep. 
 3fi0 ; NichoUs v. Webb, 8 Wheat. 326 ; per Duncan, J., in Farmers' Bank of Lancaster v. 
 Whitehill, 16 Serg. & Rawle, 90. Accordingly, it has been held in a series of cases that, 
 in the common action by a merchant for goods sold, the entries of his deceased clerk in 
 the shop- books are admissible for the plaintiff. Lewis Ex'rV. Norton, 1 Wash. Rep. 76; 
 Hunter v. Smith. 6 Mart. Lou.-Rep. (N. S.) 351, 353. Herring v. Levy, 4 Mart. Lou. Rep. 
 (N. S.) 383 ; Clarke v. Magruder, 3 Har. & John. 77 ; King v. Maddux's Ex'ra, 7 Id. 467 ; 
 per Parker, C. J., in Welch v. Barrett, v 15 Mass. Rep. 386. And see per Baylies, J., 
 *349 in Chase v. Smith, 5 Verm. Rep. 559. So of a like entry by the deceased *clerk of 
 an administratrix, to prove the payment of money by her (Brown v. Brown's 
 Adm'x, 3 Wash. Rep. 151) ; or of a deceased bank clerk, to show that a depositor has 
 overdrawn. Union Bank v. Knapp, 3 Pick. 96 ; Patten's Adm'rs v. Craig's Adm'rs, 7 Serg. 
 & Rawle, 126. And a surviving clerk may be sworn to explain the meaning of an entry 
 of a deceased fellow clerk. Hood v. Reeve, 3 Carr. & Payne, 583. On the same general 
 ground , the memorandum of a re-survey, made by a deceased surveyor and indorsed on 
 the original 'survey, is receivable. Snavely v. M'Pherson, 5 Har. & John. 150, 151, 154 ; 
 Ilinggold V. Galloway, 3 Id. 451, 455, 456, 457, contra. But, to be admissible, it must be 
 particular, definite, and certain. Where it was made up of opinions and loose statements, 
 it was rejected. Stoddard v. Manning, 2 Har. & Gill. 147, 156, 157. The field notes of 
 3jord Halifax's surveyor (he being dead) were received. Richardson v. Carey, 3 Rand. 87. 
 The entry of a deceased commissioner to take acknowledgments of deeds, charging for 
 certain acknowledgments, were received in evidence, on a question upon the genuineness 
 of certain deeds. Nourse v. M'Cay, 2 Rawle, 70. 
 
 It should be observed that, in the two last cited Maryland cases, the notes of deceased 
 surveyors, in proper form, are distinctly recognized as within the general principle. Thus, 
 this highly useful and important class of entries come in by a double title ; that of boun- 
 dary, noticed ante, note 87, added to the one we, are now upon, which is evidently the 
 most comprehensive of the two. 
 
 Tlie entries of surveyors, engineers and commercial agents, are obviously destined to 
 Very great variety and importance, as a branch of documental testimony. 
 
 The most common application of this principle has been made to the entries of notaries 
 and others, intended as memoranda of what they have done in demanding payment, and 
 giving notice of non-payment upon promissory notes, in order to fix indorsers. In these 
 cases, as we shall see at large in our second volume, time and other circumstances being 
 objects of minute attention, often demanding a variety of conduct, nicely, skillfully and 
 promptly adapted to particular exigencies, prudence always dictates a full and careful 
 entry of every step ; and such is the usual course. A great majority of this kind of 
 paper, with which the United States is almost literally flooded, is payable at incorporated 
 banks. There its notarial management is generally confided to particular persons, who 
 keep regular registers of what they have done upon each note. Sometimes they act per- 
 sonally, and sometimes through their clerks ; and hence, the death of either leaves a good 
 many instances of this kind of secondary proof. Sometimes the notary acts himself, and 
 the entry is made by a clerk or amanuensis, retained for the occasion. But in whatever 
 form, it is now settled that these entries are admissible in evidence on the death of the 
 person who is alone able. personally to speak. The leading case on this question is that 
 of Welch V. Barrett (15 Mass. Rep. 380, A. D. 1819), in which the court ground themselves 
 expressly upon Lord Torrington's Case, and advance the general rule with which we 
 began this note, as the true ground of that case. Welch v. Barrett was followed by the 
 Supretne Court of the United States, in NichoUs v. Webb (8 Wheat. 336, A. D. 1833), by 
 the Supreme Court of New York, in Halliday v. Martinet (30 John. Rep, 168, A. D. 1832), 
 by the Supreme Court of Tennessee, in Bell v. Perkins (Peck's Rep. 361), and M'Neill v. 
 Elam (Id. 368). both A. D. 1833, and it has since been treated as the settled law. Per 
 Duncan, J., in Farmers' Bank of Lancaster v. Whitehill, 16 Serg. & Rawle, 89, 90 ; Wilbur 
 v. Selden, 6 Cowen's Rep. 163 ; Butler v. Wright, 2 Wend. Rep. 369, 870, 375 ; Hart v. 
 Wilson, Id. 513 ; Nichols v. Goldsmith, 7 Wend. 160. Finally, several states have passed 
 statutes regulating this notarial evidence. How many we know not. As to New York, 
 see 3 R. S. 383, § 46 ; Id. 384, § 47 ; sess. 56, p. 395, 396, act of 1838, § 8. Our informa- 
 tion, as to the statutes of other states, is derived incidentally through their reports, from 
 which we find there is something in Kentucky (7 Monroe, 555, 557), something in Tennes- 
 see, (Peck, 361), and as to South Carolina, see infra. 
 
 The principle is, of course, not confined to official acts by notaries ; but extends to any 
 other, acting in the line of the same business. If the notarial business and entry be done 
 by a runner or messenger of the bank, it is the same thing (Welch v. Barrett, 15 Mass. 
 Rep. 380), or by a cashier. Nichols v. Goldsmith, 7 Wend. 160. So, if the duty be done 
 by the deceased notary, and the entry made by another, as by his daughter, under his 
 direction. M'Neill v. Elam, Peck's Rep. 268. But in such case, though the person doing 
 the service be dead, the clerk or amanuensis must be produced, if alive. It is not enough 
 that he be out of the jurisdiction of the court. Wilbur v. Selden, 6 Cowen's Rep. 163. 
 (In Sheldon v. Buchanan (4 Hill, 139), the entry of a teller of a bank since deceased, made 
 while acting in the usual course of his employment, was held admissible in evidence ; the 
 
286 Entries made in the [ch. vrii. 
 
 entry was in fact made by him as clerk of the notary who was also dead, but the court 
 held the entry admissible whether made by him as teller or as such clerk. See also 
 M'Knight v. Lewis, 5 Barb. 681 ; and Arms v. Middleton, 33 Barb. 571 ; and Inhabitants 
 of- Augusta V. Inhabitants of Windsor, 19 Maine, R. 317. An attorney being dead, his 
 entry of the issuing of an execution may be read as proof that it was issued, proof of its 
 loss having been previously given. Leland v. Cameron, 31 N. Y. 115. But the entries 
 of a clerk made in the usual course of business, cannot be given in evidence on the ground 
 that though still living he is beyond the jurisdiction of the court. Brewster v. Doane, 
 3 Hill 537 ; 16 Wend. 595 ; contra, Reynolds v. Manning, 15 Md., 510. If the clerk of 
 party making the entry or memorandum, being called as a witness, testifies that he made 
 it at or about the time the fact occurred and knew it to be correct when made, it may bo 
 
 read to the jury. Guy v. Mead, 33 N. T. R. 463). 
 *350 *The forms of these entries are as various as the modes which may strike the fancy of 
 the person who does the business. But if significant and certain to a common intent, 
 they are receivable. They have been considered under different modifications in several 
 cases. NichoUs v. Webb, 8 Wheat. 336 ; Halliday v. Martinet, 20 John. Rep. 168 ; Bell v. 
 Perkins, 1 Peck's Rep. 361 ; M'Neill v. Elam, Id. 368 ; Butler v. Wright, 2 Wend. 369 ; 
 Hart V. Wilson, Id. 513 ; Nichols v. Goldsmith, 7 Id. 160. In Bell v. Perkins, the entry 
 was quite general : " duly notified in writing, 9th July, 1819, the last day of grace being 
 Sunday, the 18th;" and so it will be seen of Nicholls v. Webb and several other cases. 
 
 The courts in South Carolina seem not to have gone so far as to receive such entries in 
 evidence. Thus, a deceased jailer's original entry in his prison-book, offered to prove the 
 time during which a prisoner was in custody, was denied. Walker v. M'Mahen, 4 Const. 
 Rep. 139. So, the usual entry of a deceased notary to prove demand and notice upon a 
 proinissory note. Williamson v. Patterson, 3 M'Cord, 133. Though this has been reme- 
 died by statute. Id. note a. And see Dobson v. Laval, 4 M'Cord, 57, and Bank of S. Car. 
 V. Green, 3 Bail. 830 ; in which cases this statute is referred to, and the extent of a notary's 
 territorial j urisdiction, and the form of his certificate under the statute, considered. Some 
 of our courts seem to have been embarrassed with the restricted notion of entry against 
 interest, which is still often imputed by the English courts as the principle of Lord Tor- 
 ringtoh's Case. We think it vrill be seen by the remarks of our author, and the examina- 
 tion bestowed upon the question in Nicholls v. Webb, not only that no such principle is 
 to bfe found in Lord Torrington's Case, but that the English courts themselves, especisilly 
 at Nisi Prius, have several times acted upon the more liberal construction of that case. 
 Indeed, in receiving one kind of this evidence, the learned court of South Carolina have 
 been more liberal than the courts of our other states. The former receive evidence of 
 mercantile accounts between vendor and vendee, not only by proving the entries of a 
 deceased clerk, but those of one absent from the state. Elms v. Cheevis, 3 M'Cord, 359. 
 
 In general, the cases agree that the entry, or other memorandum of the deceased, must 
 appear to have been made at or about the time, as a memorandum of the transaction, and 
 not be a mere subsequent declaration of what had been done, in the past tense. Farmers' 
 Bank of Lancaster v. Whitehill, 16 Serg. & Rawle, 89. Accordingly, the letters of a 
 deceased agent or friend, stating what he had done as such are not receivable. The court 
 say, " such evidence is not like entries in the usual and accustomed mode of business and 
 dealing like Price v. Lord Torrington (1 Salk. 285), or in the ordinary course of official 
 duty, as in the case of Nicholls v. Webb (8 Wheaton) ; nor within the principles or ana- 
 logies of any of the intermediate cases, where the books or copies from books regularly 
 kept by deceased persons in the usual course of business, have been admitted upon proof 
 of the death, handwriting and usual course of dealing and transactions by them. It is 
 no part of the res gestm, but a mere ex parte statement, not on oath, res inter alios acta. 
 Morton's Adm'r v. Smith, 4 Monroe, 313, 314. So on a question of the defendant's dili- 
 gence, the letters of his deceased agent, who resided abroad, were denied as evidence 
 against the plaintiff. Farmingham Manufacturing Co. v. Barnard, 2 Pick. 533. The court 
 take about the same range of remark as we have given from Morton's Adm'r v. Smith. 
 On the same principle, and accompanied by the same distinctions, the ex parte afiidavit of 
 a notary's deceased clerk was rejected as evidence, to prove a notice of non-payment. 
 Farmers' Bank of Lancaster v. Whitehill, 16 Serg. & Rawle, 89. In an action on a policy, 
 the protest of the deceased captain was held inadmissible to prove the loss. Patterson v. 
 Maryland Ins. Co., 3 Har. & John. 71, 74, 77. Chase, J., dissenting. Yet an extreme case 
 was allowed to furnish an exception. AJad letters from an agent, who afterwards died, to 
 prove a demand made of a debtor on a distant barbarous coast, were received, the court 
 putting their admissibility on the ground of a necessity arising from the peculiar and 
 extraordinary circumstances. Greenwood v. Curtis, 6 Mass. Rep. 358. And a still more 
 extraordinary piece of testimony has been recently acted upon in England. A merchant 
 had made a voluntary assignmemt to his confidential clerk. On his death, a letter or 
 written declaration was found with his will, showing the assignment to have been obtained 
 by undue influence on the part of the clerk. This was received, in connection with other 
 circumstances, as evidence sufficient to set the assignment aside. Collins v. Hare, 8 Dow 
 & Clark, 139, 145, 149, on appeal from the Irish chancery to the House of Lords. In Doe 
 ex dem. Davy v. Haddon (3 Doug. 310), the oral declaration of a judicial officer (since 
 
SEC. Tni.] Course of Business. 287 
 
 *3S2 *It appears to be a legitimate ground for admitting sueh entries oj- 
 declarations in evidence, that it would be contrary to the experience 
 of mankind, if, in the generality of instances at least, they were not exempt 
 from the suspicion of fraud or carelessness ; it .is of course presumed that 
 no temptation to deceive can be suggested ; and it is no unimportant guar- 
 anty against fraud, that the declarations cannot be available for the author 
 
 -*" 
 
 dead), tending to show that he had been guilty of corruption in making an adjudi- 
 *351 cation, was received as evidence *to impeach his act. But whether the usage of the 
 sessions to receive the declarations of a deceased husband as to his place of settle- 
 ment, could be sustained, was doubted ; though Willes, J., thought that it might. Bex v. 
 St. Sepulchre, 4 Doug. 336, 338. 
 
 The rule does not extend to mere-oral declarations of the deceased. Per Parker, Ch. J., 
 in Farmingham Manufacturing Co. v. Barnard, 2 Pick. 534. But see what was said by 
 the Lord Chancellor in Barker v. Ray, 2 Rues. 63. 
 
 In no case, where, owing to some extrinsic circumstance, such as the death of the per- 
 son making the entry, memorandum or other paper, or his being alive, and able to swear 
 that it accords with the truth, it may be received 'in connection with that circumstance, 
 is this any ground for tl^ exclusion of oral evidence, as inferior in degree. Thus, though 
 the deceased father may have registered his child's age in his family Bible, this does not 
 preclude testimony on the same point from any one having the requisite knowledge ; nor 
 is it necessary to account for the absence of the memorandum. Berry v. Waring, 2 Har. & 
 GUI,- 103 ; Taylor v. Hawkins, 1 M'Cord, 164, ante, note 92. And a memorandum of a 
 prisoner's confession, made by a district attorney, need not be produced. He may give 
 oral evidence of the admission. Patton v. Freeman, Coxe's Rep. 113. The use of memo- 
 randa made by a witness, and for which he testifies in court, and the extent to which it 
 becomes evidence, we have already partially seen, and shall have occasion to consider 
 more at large, when we come to the title of the examination of witnesses. But the serious 
 question, when the degree of this kind of testimony is looked to is, whether it be not itself 
 inferior and secondary, so long as the ordinary oral proof appears to remain within the 
 power of the party ; not whether the latter shall give way to the former. And accordingly 
 the original entries of the deceased clerk of auctioneers, were denied as evidence of sales 
 by him, made for the plaintifls to the defendants. The point was contended, and seems 
 to have been holden, on the ground that the auctioneers were alive, and competent wit- 
 nesses, and their evidence, therefore, the best. Chase, Ch. J., and Nicholson, J., dissented, 
 holding the testimony admissible. They thought it was not inferior in degree to that of 
 the auctioneers. Walsh v. Gilmore, 3 Har. & John. 383. The learned judges, who dis- 
 sented, will find themselves fully sustained, by a late case in the King's Bench, which 
 we stated for another purpose, ante, note 103 ; Middletoil' v. Melton, 10 Bamw. & Cressw. 
 317. That court held, unanimously, that difference in degree is not predicable between 
 testimony coning from a personal observer of the matter, and an entry of the same mat- 
 ter by a deceasedobserver. It will be seen, that there, the proof was of entries, showing 
 money paid to, and ticked off by a deceased collector of taxes made by him, and accom- 
 panied with various receipts for the money, in order to charge his sureties ; both the 
 ticked and receipted payments, of course, being provable by those who made them. The 
 objection was distinctly raised, that their testimoney would be higher in degree, and as 
 distinctly overruled. Here, too, secondary evidence was given of the book itself, contain- 
 ing the entries which the defendant had refused to produce, on notice ; yet held equal in 
 degree with the testimony of an eye-witness. In looking over the cases relating to this 
 kind of testimony, it wiU be perceived that the courts must, in a great variety of cases, 
 have acted in total disregard of this distinction ; uniformly allowing the party to make 
 his election between an entry and a living witness of the fact. 
 
 But if you seek to prove the contents of the paper, it must be produced, or its absence 
 accounted for. Curtis v. Patton, 6 Serg. & Rawle, 135 ; Middleton v. Melton, gwpra. AnJi 
 in all cases the handwriting of the person making the entry must be proved in the usual 
 way. Suavely v. M'Pherson, 5 Har. & John. 150, ante, note 106. 
 
 Before the entry, &c., is entitled to be used, the person who made it must be first shown 
 to have died. Kenedy v. Fairman, 1 Hayw. 458 ; Whitefield v. Walk, 2 Hayw. 24 ; Wil- 
 bur V. Selden, 6 Cowen's Rep. 162. It is not enough that he be beyond the jurisdiction of 
 the court, or beyond the reach of process. Kenedy v. Fairman, 1 Hayw. 458 ; WTiitefield 
 V. Walk, 2 Hayw. 24 ; Wilbur v. Selden, 6 Cowen's Rep. 162 ; Cummings v. Fisher, Anth. 
 N. P. Rep. 1. A fortiori, if he be within process (Tunno v. Rogers, 1 Bay, 380 ; Philadel- 
 phia Bank v Officer, 12 Serg. & Eawle, 49 ; Smith v. Lane, 12 Serg. & Rawle, 80. %T) ; and 
 present in court. Weem's Lessee v. Disney, 4 Har. & M'Hen. 156 ; per Marcy, J., in Leg- 
 gett V. Boyd, 3 Wendell, 376, 379. But insanity has been holden an excuse equivalent to 
 that of death. Union Bank v. Knapp, 3 Pick. 96. See aiite, note 92. And several cases 
 have holden that permanent absence from the state is the same thing. EUms v. Cheevis 
 2 M'Cord, 350 ; Tunno v. Rogers, 1 Bay, 480. 
 
288 Eni/ries made in the [ch. tiii. 
 
 of them during his lifetime. By the restriction which requires that the 
 declarations should have been made in the course of ordinary husiness, and 
 liot only connected with the transactions to which they relate, but also 
 ootemporaneous with them, a reasonable ground is laid for presuming that 
 they are accurate. An additional reason for the admissibility of such evidence 
 is, that the weight attached to the evidence is not founded merely on the 
 presumption of the credit due, under the circumstances, to the authors of 
 the declarations, but also on the presumption, that in the ordinary course of 
 business such declarations would have been made, if the principal fact to be 
 proved had really taken place. Further, it niay be thought, that as trans- 
 actions in business are frequently confined to the knowledge of a few 
 persons, there is some reason, on the ground of general convenience, for 
 enlarging the rule, as far as can safely be done, and for adapting it to the 
 exigencies of the community. (1) 
 
 In the case of Price v. Lord Torrington,(2) which was one of the earliest 
 reported upon this subject, the plaintiff, who was a brewer brought an action 
 for beer sold and delivered ; the evidence given to charge the defendant 
 was, that, according to the usual course of the plaintiff's dealing, the dray- 
 men came every night to the clerk of the brew-house, and gave him an 
 account of the beer they had delivered out, which he set down in a book 
 kept for that purpose, to which the draymen signed their names in the 
 presence of the clerk; (3) the drayman, whose name appeared to be signed 
 to an entry stating the delivery of the beer in question, was de£id ; and the 
 signature was proved to be his. It was ruled, that this was good evidence 
 of a delivery. 
 
 In Pitman v. Maddox,(4) in an action on a tradesman's bill, a shop-book 
 
 was admitted by Holt, C. J., as evidence to prove the delivery of goods, it 
 
 being proved that the servant who kept the book was dead, (5) that 
 
 *353 the *entries were in his handwriting, and that he was accustomed to 
 
 make the entries. 
 
 In Smartle v. "Williams, (6) where the question was, whether mortgage 
 money had been really paid, the book of accounts of a deceased scrivener 
 was held to be good evidence of payment. In this case it does not appear 
 that the scrivener charged himself by the entry. 
 
 In the case of Evans v. Lake,('7) upon an issue out of chancery to try 
 whether eight parcels of Hudson's Bay stock, bought in the nafhe of Lake, 
 were in trust for. Sir Stephen Evans, the plaintiffs (the assignees of Sir 
 Stephen Evans) showed, first, that there was no entry in the books of Lake 
 relating to the transaction ; secondly, six of the receipts were in the hands 
 of Sir Stephen Evans, and there was a reference on the back of them, by a 
 deceased bookkeeper of Sir Stephen Evans, to a certain shop book of Sir 
 Stephen, in which there was an entry for the payment of money for the 
 whole of the goods. The question, upon the trial at bar, was, whether 
 
 (1) See by Tindal, C. J., in Poole v. Dicas, 1 N. C. 658. 
 
 (2) 1 Salk. 385 ; S. C, 2 Lord Baym. 873 ; Holt, 800. See, also, 1 Smith Lea. Ca. 139. 
 In Massachusetts, an account-book that appears to have been copied every Saturday 
 
 night by a clerk from the delivery-book of the drayman, accompanied by the oath of the 
 clerk that the entries were correctly made and compared by him and the drayman, is not 
 receivable in evidence ; the drayman living must be called. Kent v. Garvin, 1 Gray, 148. 
 
 (3) See by Lord Raymond, C. J., in Clerk v. Bedford, B. N. P. 283, infra. 
 
 (4) 2 Salk. 690 ; S. C, Lord Baym. 732. 
 
 (5) See, also. Cooper v. Marsden, 1 Esp. 1. 
 
 The rule in most of the states allows the party's ovfn entries and account books to be 
 received in evidence in his favor, under certain circumstances : as to which see subsequent 
 note. 
 
 (6) B. N. P, 283. The case appears to be the same as that of Smart v. Williams (Comb. 
 257), of which a note is given in 12 Vin. Abr. 88, A, b. 15. 
 
 (7) B. N. P. 282, referred to by Lord Hardwicke, C, in Glynn v. Bank of England, 3 Ves. 
 43 ; and in Lefebure v. Warden, 3 Ves. 54. 
 
SEC. Yni.] Course of Business. 289 
 
 entries of the payment of the money, contained in the book referred to, 
 should he read. The Court of King's Bench admitted entries from the book 
 in qviestion to be jead, as well such as related to the above mentioned six 
 receipts, as also some which related to two other receipts in the possession 
 of the son of Lake. 
 
 In Pritt V. Fairclough,(l) an entry by a deceased clerk, in a letter book, 
 professing to be the copy of a letter of the same date, made according to 
 the course of business, was received in evidence. 
 
 In Hagedorn v. Ileid,(2) a memorandum of a deceased clerk, written on a 
 copy of a license, stating that the original had been sent to a particular per- 
 son, was held to be evidence of that fact, upon proof of the course of business 
 followed by the clerks in the office. 
 
 In Champneys v. Peck,(3) upon a question whether an attorney's bill had 
 been delivered within a month before the commencement of the action, an 
 indorsement upon the bifl, ii^ the handwriting of a deceased clerk, was 
 received in evidence. The indorsement was in these terms : " March 4th, 
 1815, delivered a copy to Mr. Peck." Upon this indorsement being pro- 
 duced, and evidence being given that it was the duty of the particular clerk 
 to deliver the bill, and that such an indorsement was usually made in the 
 common course of business upon the copy kept, Lord Ellenborough ruled, that 
 the indorsement was prima facie evidence of the delivery of the biU. 
 *354 *The case of Digby v. Steadman(4) is sometimes considered as 
 belonging to this class of cases. There, in an action of trover, the 
 plaintiff's shopman, who proved the delivery, was allowed by Lord Kenyon 
 to produce the shop-book, containing an entry of the delivery in the hand- 
 writing of his master, and seen by himself within a short time after it was 
 made. It would seem, that-«in the present day, a question of this kind 
 could only arise upon the faestion as to the means by which a witness 
 might refresh his memory. (5) , 
 
 The more recent cases of Doe d. Patteshall jv. Turford, and Poole v. 
 Dicas, next to be mentioned, have settled the principle upon this subject. 
 
 In Doe d. Patteshall v. Turford, (6) the question was, whether a notice 
 to quit had been served on a tenant by an attorney. It was shown to be 
 the usual practice in the attorney's office, for the clerks to serve notices 
 to quit on tenants, and to indorse on duplicates of such notices the fact 
 and time of service. On one occasion, the attorney himself prepared a 
 notice to quit to serve on a tenant ; took it out with him, together with 
 two others prepared at the same time, and returned to his office^ in the 
 evening, having indorsed on the duplicate of each notice a memorandum 
 of service on the tenant ; two of them, were proved to have been delivered 
 by him on that occasion. (T) The question at the trial was, whether the 
 indorsement made by him on the duplicate of the third notice, could be 
 received, after his death, as evidence to prove the service of that notice. 
 Littledale, J., received it ; and the Court of King's Bench held, that it had 
 been properly received. The cases before cited were referred to as author- 
 ities for the admissibility of the evidence. Lord Tenterden, C. J., first 
 adverted to the practice in the office as to service of notices by the clerks, 
 and observed that though they were regularly served by the clerks, and 
 not by the principals, yet, that a principal might occasionally serve . such a 
 notice, and that the court must assume, that when a principal served 
 
 (1) 3 Camp. 307. 
 
 (2) Id. 379. 
 
 (3) 1 Stark. E. 404. The cause was undefended. 
 
 (4) 1 Esp. 327. 
 
 (.■5) See Ciooper v. Marsden, 1 Esp. 1. 
 
 (6) 3 B. & A. 890. 
 
 (7) This statement of the facts of the case was made by Tindal, C. J., in Poole v. Dicas 
 1 N. C. 653. 
 
 Vol. L 37 
 
290 Mitries made in the Course of business. [ch. viii. 
 
 the notice, he would do what he required his clerk 'to do. "The indorse- 
 ment, then" (added the Lord Chief Justice, in conclusion), "having been 
 made in the discharge of his duty, is, according to the authorities cited, 
 admissible evidence of the fact of the service of the original." Littledale, 
 J., said : " If the notice in question had been served by a deceased clerk, 
 his indorsement on the duplicate, coupled with proof of the practice of 
 the office, would have been sufficient evidence of the service. Then, is the 
 indorsement of the attorney tantamount to a clerk's ? _ I think it is ; for it 
 must be assumed, that he would do what he required his clerk to do." 
 *355 Parke, J., pointed out the several facts of the case, *which were strong 
 '• circumstantial evidence, that the notice in question had been deliv- 
 ered at the time stated in the memorandum indorsed on the duplicate. Then 
 adverting to the practice of the office as proved, he remarked that it must 
 be presumed that the attorney (one of the principals in the office) observed 
 the rule of the office as well as the clerks. 
 
 The case of Poole v. Dicas(l) recognizes and confirms the last mentioned 
 case of Doe v. Turford to its fwll extent. The question there was on the 
 admissibility of an entry in a notary's book, as evidence of the dishonor of 
 a bill. A notary's clerk stated at the trial, that when the bill became due 
 (in June, 1833), it was left by the plaintiff with the notary, to demand 
 payment. A copy of the bill was made in a book kept by the notary for 
 that purpose, and one of his clerks (since dead) went out on a Saturday 
 evening to demand payment of the acceptor : in a short time he returned, 
 and in the margin of the book, containing the copy of the bill, wrote by 
 the side of the copy " No effects." This entry was produced, and proved 
 to be in the deceased clerk's handwriting.;' Another clerk made a similar 
 entry from the deceased clerk's dictation in a separate book, which contained 
 the protest for non-payment. All this was doHe in the regular course of the 
 notary's business. The entry was received by Tindal, C. J., at the trial, 
 and, as the Court of Common Pleas determined, properly received. After 
 argument, the chief justice said : " We think -the evidence in question was 
 admissible, on the ground that it was an entry made at the time of the 
 transaction, and made in the usual course and routine of business by a 
 person who had no interest to misstate what had occurred. This does not 
 carry the law further than the principle established in Doe v. Turford. 
 The entry was made at the time : and all was done in the ordinary course 
 of business. The clerk had no interest to make a false entry : if he had any 
 interest, it was rather to make a true entry : — a false entry would be likely 
 to bring him into disgrace his with employer." Parke, J., was of the same 
 opinion, and rested the admissibility of the entries on the ground that 
 they were made in the ordinary course of business, and at the time when 
 the act recorded was done. (2) 
 
 It is further to be observed, that in this case the deceased clerk charged 
 himself with the noting of the bill; (3) and, therefore, in that sense, it was 
 an entry against interest. 
 
 In the }ate case of Doe dem. Welsh v. Langfield,(4) it appeared that, by an 
 
 inclosure act, claims to allotments were to be made in writing, and sent to 
 
 the commissioners. The claims made were entered by the clerk 
 
 *356 *in a book, though not required by the act to be so kept. The claims 
 
 allowed by the commissioners were marked in the book " allowed," 
 
 ,649. 
 , also, Ward v. Garnons, 17 Ves. 134 ; Pickering v. Ely (Bp.), 2 Y. & C. 349. 
 It was lately held in Kentuclcy, that the entries of a deceased merchant, stating the 
 giving of a note and its payment, are not admissible in favor of his partner in an action 
 upon the note. Braunin & Smith v. Force's Adm'r, 12 B. Mon. 506 : 3 John. Cas. 198 
 
 (3) See by Parke, B., 16 M. & W. 513. 
 
 (4) 16 M. & W. 497. 
 
 (1) 1 N. C. I 
 
 (2) See, als( 
 
SEC. viii.] Knowledge of Facts necessary. 291 
 
 and attested by their initials affixed thereto. The entries were made in 
 the course of business and at the time they purported to bear date ; and the 
 court intimated a strong opinion (although the point became immaterial for 
 the decision of the case), that these entries were admissible in evidence, 
 upon proof of the clerk's death, and of a negative search for the original 
 claims in the proper repository. 
 
 Knowledge of facts necessary. The courts, however, have shown an 
 indisposition to carry the doctrine of these cases further than they will 
 strictly warrant.(l) It appears, therefore, to be an essential condition of 
 the rule, that the party making the entry should have a personal knowledge 
 of the facts. Upon this principle, it seems, the case of Brain v. Preece(2) 
 was decided. It was proved there to be tide course of business for one of 
 the workmen at a coal , mine to give notice to the foreman of the amount 
 of coal sold in the course -of the day, and the foreman, not being able to 
 write, employed another person to make entries of the sales in a book at 
 the time, from the information of the workman : the foreman and workman 
 were both dead ; but it was held, in an action for the price of the coal, that 
 such entries were not evidence. In answer to the objection urged against 
 the admissibility of these entries, that they were made from the information 
 of another party, the case of Poole v. Dicas(3) was relied upon as showing 
 that the mere fact of the entry not being in the party's own hand made no 
 difference. But Lord Abinger, C. B., said that that was the case of entries 
 made in the course of business of a public officer ; and that the case of 
 entries not of that character, and not written by the party himself, but at 
 his supposed dictation by another man, was widely different. 
 
 In the recent case of Davies v. Lloyd, (4) which was not a case of pedi- 
 gree, in order to show the age of a Jew, it was proposed to give in evidence 
 an entry made by the chief rabbi, who was dead, in a book kept at the 
 Synagogue, it being proved that it was the duty of the chief rabbi to per- 
 form the rite of circumicision, which, by the law of the Jews, takes place on 
 the eighth day after the birth of the child, and to make an entry of the fact 
 at the time. But Lord Denman, C. J., after conferring with Patteson, J., 
 ruled that the evidence was not receivable, but without giving any reasons 
 for its rejection. It may probably stand upon the same principle as the 
 last-mentioned case ; inasmuch as the entry made by the rabbi would 
 *357 only show the performance of the rite, and any knowledge *which 
 he might be supposed to have as to the age of the child, would be 
 derived from the information of others. 
 
 In a late action of ejectment, (5) in order to show that the lands sought 
 to be recovered were identical with those included in an ancient lesise, to 
 which a former Earl of Arundel was a party, a book found in tlie muniment 
 room of the Duke of Norfolk, the heir of the Earl of Arundel, was tendered 
 in evidence, purporting to be that of one Spiller, a deceased steward of a 
 former Earl of Arundel, in which was entered a copy of a lease of the lands 
 in question to one Henslow, and a minute to the effect that " Henslow's 
 widow had assigned to Sir E. Cresswell, who yet claimeth ten years to 
 come ;" — ^Sir E. Cresswell being the ancestor under whom the defendant 
 held possession. But the court held that the minute was not evidence in 
 the cause, as an entry made by a deceased party in the discharge of his 
 duty ; as not being an entry of anything done by the steward, but merely 
 
 (1) See by Lord Abinger, C. B., in Brain v. Preece, 11 M. & W. 775. 
 
 (2) 11 M. & W. 773. 
 
 (3) Ut supra, pp. 354, 355. 
 
 (4) 1 Car. & K. 375. 
 
 (5) Doe d. Padwick v. Skinner, 18 L. J. (N. S.), Exoh.-107; S. C, 3 Exoh. R. 84. 
 
292 Mitries of Collateral Matters. [ch. vm. 
 
 of a matter of hgarsay, which he might think it important for his master's 
 interest for him to note.(l) 
 
 Mitries of independent matter not within rule. The principle of this rule 
 extends only to entries which ate made in the ordinary and regular course 
 of duty or business. And it does not extend to entries which, though made 
 in the course of business, include independent matters, which are not neces- 
 sary to the performance of the duty by the person who makes the entry. 
 
 In this respect the entries now under consideration differ materially from 
 those which have been .^made against the interest of the party making 
 them, which, it has been seen, are admissible not only as evidence of the 
 facts which are directly against the interest of the declarant, but ' also of 
 other independent facts contained in the same entry, and immediately con- 
 nected with the other facts. (2) 
 
 But in the instance of entries made in the course of. business, it has been 
 laid down by a very high authority, (3) that "whatever effect might be due 
 to an entry made in the course of any office, reporting facts unnecessary to 
 the performance of a duty, the statement of other circumstances, however 
 naturally they might be thought to find a place in the narrative, would be 
 no proof of those circumstances." 
 
 This branch of the rule will be well exemplified by the case of 
 *358 *Chambers v. Bernasconi,(4) in which the question was, whether the 
 plaintiff had committed an act of bankruptcy, and that principally 
 depended upon the place where he had been arrested on the 9th of Novem- 
 ber, 1825 — whether at his residence at Paddington, or in South Molton 
 street; the alleged act of bankruptcy being the keeping house by the plaint- 
 iff and denying himself to his creditors at his residence at Paddington. 
 To prove the place of arrest, the deputy under-sheriff produced a certificate, 
 signed by a sheriff's officer (since deceased) who made the arrest, and after- 
 wards sent the certificate to the sheriff's office : the witness stated at the 
 trial (which took place in 1831), that the officers were always required to 
 give in such certificates immediately after the caption ; that the certificates 
 were the foundation of the writs, and that the officers were charged by 
 their certificates of the caption, and were required to insert in the certifi- 
 cates the place of arrest ; but, in the course of the argument for a new trial, 
 the deputy under-sheriff informed the court, that at the trial his attention 
 had been directed to the practice of the sheriff's office at that time ; and 
 that he thought that in 1825 the practice of requiring the officer to 
 make a return of the place of arrest had not been adopted. (5) The certifi- 
 cate in question was as follows: "9th November, 1825, arrested A. H. 
 Chambers in South Molton street, at the suit of William Brereton>" (Signed) 
 " Thomas Wright." Lord Lyndhurst, C. B., who tried the cause, received 
 the evidence ; but upon a motion for a new trial, the Court of Exchequer 
 thought the question of the admissibility of the evidence of such import- 
 ance, that they wished the parties to have an opportunity of putting it on 
 the record ; Bay ley, B., expressing his opinion that, supposing the entry 
 admissible- at all, on the groupd that it was the duty of the sheriff's officer 
 to make the return, still that the return was not evidence as to the place of 
 
 (1) The entry waB also held not to be admissible as evidence of reputation of the extent 
 of the manor, or as being made against the steward's interest, or as professing to be a 
 copy of a deed seen by the writer ; Moore v. Meacham, 10 N. Y. E. 207, 
 
 For a similar case, with like ruling, see Ridgeloy v. Johnson and others, 11 Barb. 527. 
 
 (8) See Warren v. Greenville ; Higham v. Ridgway, and the class of cases cited supi-a, 
 p. 339, et seq. 
 
 (3) By Lord Denman, C. J., in giving the judgment of the Court of Exchequer Chamber, 
 in Chambers v. Bernasconi, 1 C, M. & R. 868. 
 
 (4) 1 C. & J. 451 ; S. C. 1 Tyr. 385 ; 8. C. in error, 1 C, M. & R. 847. 
 
 (5) 1 C. & J. 452, n. 
 
SEC. VIII.] Entries in Course of Business. 293 
 
 arrest; it not being (at least at the time when the arrest was made), a 
 necessary part of the officer's duty to state the place of arrest. 
 
 The Court of Exchequer granted a new trial, and the cause was again 
 tried before Lord Lyndhurst, C. B., who rejected the evidence before men- 
 tioned, which was again offered ; upon which a bill of exceptions was 
 tendered, and the exceptions came on for argument in the Exchequer Cham- 
 ber. (1) The bill of exceptions stated, among other things, that the 
 under-sheriff proved that it was part of the course of the sheriff's oiBce to 
 require a return in writing of the arrest, and of the place where the arrest 
 is- made, (2) under the hand of the sheriff's officer making the arrest; that 
 the sheriff acted on these certificates in making the return ; that the certifi- 
 cate produced was annexed to the writ issued against the plaintiff, &c. 
 *359 *Lord Denman, C. J., dislivered the judgment of the court, and 
 observed, that the ground upon which the argument was first rested, 
 viz : that the certificate was an admission against the interest of the party 
 making it, because it made him liable for the body arrested, was not much 
 relied on,; but recourse was had to a much broader principle, viz: that an 
 entry written by a person in the course of his duty, where he had no interest 
 in stating an untruth, is to be received after his death as evidence of the 
 fact stated in the entry, and of every circumstance therein described, which 
 would naturally accompany the fact itself. But that all the terms of that 
 legal proposition were manifestly essential to render the certificate admis- 
 sible ; and the statement of circumstances which were not necessary to the 
 performance of a duty, however naturally they might be thought to find a 
 place in the narrative, would be no proof of those circumstances. " Admit- 
 ting, for the sake of argument," continued his Lordship, " that the entry 
 tendered was evidence of. the fact of arrest, and even of the day when the 
 arrest was made (both which facts it might be necessary for the officer to 
 make known to his principal), we are all clearly of opinion, that it is not 
 admissible to prove in what particular spot within the bailiwick the caption 
 took place, that circumstance being merely collateral to the duty done." 
 
 In a later case,(3) Tindal, C. J., and Parke, J., both intimated an opinion,(4) 
 that the case of Chambers v. Benasconi was decided on the ground that it 
 was no part of the officer's duty to certify as to the place of arrest ; conse- 
 quently, the certificate was not entitled to credit as an entry made in the 
 regular course of business ; that he was going beyond the sphere of his 
 duty in making an entry of the place of arrest, and the entry therefore had no 
 claim to be received as evidence of that fact. (5) It will be seen, however, that 
 although some doubt seems to have been raised upon the point in the court 
 below, (6) that it was expressly stated in the bill of exceptions, (7) which 
 statement was referred to in the judgment of the court,(8) that the officer 
 was, by the course of the office, required to return the place where the 
 arrest was made. It cannot, therefore, in strictness, be said, that it was no 
 part of his duty to certify the place of arrest ; but the ground upon which 
 the decision rested was this — that the entry, to be admissible, should be 
 confined to facts necessary to the performance of the duty — and that the 
 spot wbere the arrest took place was merely collateral to th? act of duty, 
 which was the making the arrest. 
 
 *360 *Meaning of usual course of business. It may be observed here 
 that the expression, " usual course of business," is applied in contra- 
 
 (1) 2 C, M. & R. 347. ~ ~ 
 
 (2) But see 1 C. & J. 452, n., smpra. 
 
 (3) Poole V. Dicas, 1 N. C. 649. 
 
 (4) Id., pp. 651, 655. 
 
 (5) See, also, by Parke, B., 16 M. & W. 612. 
 
 (6) SeelC. &J. 452, n.- 
 
 (7) See 1 C, M. & R. 348. 
 
 (8) Id., p. 367. 
 
294 Entries in Course of Business [ch. viii. 
 
 distinction to what is out of that course; and that where the course of 
 business varies from time to time, nothing can he inferred from it.(l) 
 
 In the case of The Queen agt. The Inhabitants of Worth,(2) in order to 
 show that a contract for service had been for less than a year, proof was 
 given that the deceased master had made a practice, when he hired farm 
 servants, of entering the time and terms of such hiring in a book kept by 
 him for that purpose ; but the court held the book was inadmissible, as the 
 entries were not made in the course of any duty or employment. 
 
 In a late case of an ejectment, to recover some land as parcel of a certain 
 manor, (3) the lessor of the plaintiff, who sought to trace his title through 
 one Sir E. C.,.in order to prove a lease to one H., and assignments, by him 
 to P., and by P. to Sir E. C, offered in evidence an old book, found in the 
 muijiment room of the family to whom the manor belonged. This book, 
 among other entries and receipts in the handwriting of the then steward, 
 contained an entry of the lease in question, and a minute to this effect : 
 " H.'s widow hath assigned to Sir E. C, who claimeth ten years to come." 
 It was held that this entry was not receivable in evidence, not having been 
 made in the course of any duty or employment. 
 
 Entry must he cotemporaneous with act done. Another term in the 
 definition of the principle before stated is, that the entry or written memo- 
 randum, offered in evidence, must have been made cotemporaneously with 
 the doing of the act therein recorded ; that is (it is conceived), made in 
 point of time so nearly after the act done, as to be reasonably considered a 
 part of the same transaction, according to the ordinary and regular course 
 of business. And this forms another difference from entries in declarations 
 made against interest, which, as has been observed, are not required to be 
 cotemporaneous with the facts to which they relate. (4) This distinction is 
 pointed out by Parke, J., (5) as follows : " It is to be observed, that in the 
 case of an entry falling under the first head of the rule, as being an admis- 
 sion against interest, proof of the handwriting of the party, and of his 
 death, is enough to authorize its reception ; at whatever time it was made 
 it was admissible; but in the other case (i. e., of an entry made in the 
 
 course of business or duty), it is essential to prove that it was made 
 *361 at the time it purports to bear date ; it *must be a cotemporaneous 
 
 entry." (6) In Price v. Lord Torrington, the entry was made at 
 night, in the usual course,— the delivery of goods (for the proof of which 
 
 (1) By Alderson, B., 16 M. & W. 508. 
 
 (3) 4 Q. B. 132. 
 
 f3) Doe d. Padwick v. Skinner, 3 Exclt. R. 84. 
 
 (4) Vide supra, p. 339. 
 
 (5) In Doe d. PatteshiU v. Turford. 3 B. & Ad. 897, 898. 
 
 (6) See, also, by Parke, J., in Poole v. Dicas, 1 N. C. 654. 655. 
 
 The rule, as stated in New York, is,' that entries and memoranda, made in the usual 
 course of business by notaries, clerks and other persons, may be received in evidence after 
 the death of the person who made them. If living, he must be called ; if absent, he 
 must be examined on commission. Brewster v. Doane, 2 Hill, 537. And such entries, 
 verified by the person makmg them as having been so made, are admissible, though the 
 witness have no present recollection of the transaction. Bank of Monroe v. Culver, 2 
 Hill, 531. The belief of the witness, based upon the entries, renders them competent 
 evidence. Bank of Tennessee v. Cowan, 7 Humph. 70. If, however, the entry be made 
 by a person having no actual knowledge of the transaction ; as where a notary makes an 
 entry in his book from a statement made to him by his clerk ; the entry is not admissible 
 in evidence, though the clerk testifies to the accuracy of the entries in the book, from the 
 fact that they were made each day truly and exactly according to the facts, he having no 
 personal recollection of this particular entry or of the facts stated in it. Lewis v. Kramer, 
 8 Md. 265. When the person doing the act makes the entry, it is not essential that he 
 should be able to recollect the transaction, provided he can testify that, from the manner 
 in which the business was done, he has no doubt that he gave the notice or made the 
 demand accordina: to the entry. 6 Cowen, 90 ; 15 Conn. R. S06 : 8 Ala. 590 ; 1 Gill, 127 : 
 86 Maine, 45 ; 4 Barring. 463 ; 22 N. Y. R. 462. 
 
SEC. VIII.] Must be Cotemporaneous. 295 
 
 the entry -was wanted) having taken place, if at all, in the same day. In 
 Doe V. Turford, the entry (an indorsement on a duplicate of notice) was 
 made after the conclusion of the business, at the latest in the evening of the 
 same day, if not earlier. In Poole v. Dicas, the entry was made in the regu- 
 lar mode, on the return of the clerk from the business in which he had been 
 employed. In Chambers v. Bernasconi, the entry would have been made 
 (according to the usual course) immediately after the caption. There was 
 no difficulty in any of these cases upon the point whether the entry 
 was made regularly in point of time, and cotemporaneously with the trans- 
 action recorded. But in-Clerk v. Bedford,(l) there was an entire failure 
 with respect to that term of the definition, which requires the entry to be 
 cotemporaneous with the fact recorded in the entry. In that case the 
 plaintiff, to prove delivery of wine to the defendant, produced a book 
 belonging to his cooper (since dead), whose name was subscribed to several 
 articles ; after proof of the handwriting, it was proposed to read the arti- 
 cles so subscribed j but Lord Eayinond, C. J., would not admit the 
 evidence, saying it difiered from Lord Torrington's Case, because there 
 the witness saw the drayman sign the book every night. (2) In Champneys 
 V. Peck, (3) Lord Ellenborough, C. J., was not satisfied with the evidence of 
 the indorsement of a deceased clerk for proof of the time of the delivery 
 of an attorney's bill, until it had been shown by extrinsic evidence, that 
 the indorsement existed at the time when, according to its purport, the bill 
 
 had been delivered. 
 *362 *In the case of Pyke v. Crouch, (4) on a trial at bar, it was resolved 
 
 that if the duplicate of a will be written by the direction of a testator, 
 and be sent to him by a stranger to keep it safely, and the stranger sends 
 back a letter to the testator, in which he makes mention that he has received 
 the will, such letter may be read after the death of the stranger as circum- 
 stantial evidence, to prove that such a duplicate of a will was sent by the 
 testator to the stranger. It does not appear in this case (which was decided 
 at a time when the principle applicable to cases of this description had not 
 been well considered), that the transaction was according to the ordinary 
 and regular c.ourse of business: from the nature of the transaction the 
 contrary might be inferred ; and if so, the case could not be brought within 
 the principle above stated. 
 
 Corroboration, how far required. It would appear from what is reported 
 to have been said by Taunton, J., in the case of Doe d. Patteshall v. Tu& 
 ford, (5) that another limitation was annexed to the rule under consideration ; 
 namely, that entries made in the course of duty or business, require to be 
 corroborated by other circumstances which render it probable that the fact, 
 of which the entry is made, in reality occurred. His Lordship's words, as 
 reported, are : " A minute in writing like the present, made at the time 
 when the fact it records took place (that is, the fact of delivery of notice), 
 by a person since deceased, in the ordinary course of his business, corrobo- 
 rated by other circumstances which render itprobahle that that fact occurred,. 
 is admissible in evidence. "(6) Corroborating circumstances (it is conceived) 
 were not necessary for proving that tlje fact, the delivery of the notice, 
 occurred : but to prove that the making of the entry was cotemporaneousr 
 with the fact of delivery, circumstantial evidence would be necessary ; — 
 this was very clearly shown by Parke, J. The entry was in itself evidence 
 of the fact of the notice having been delivered, and needed no corroborating - 
 
 (1) B. N. P. 382. 
 
 (2) See Calvert v. Canterbury (Abp.), 3 Esp. E. 646. 
 
 (3) 1 Stark. B. 404. 
 
 (4) Lord Kaym. 7i,0. 
 
 (5) a B. & Ad, 890. 
 
 (6) 3 B. & Ad. 898. 
 
296 Verbal Declarations. [ch. viit. 
 
 circumstances as to that fact; corroborating evidence might add to the 
 eff'ect or value of the entry, as proof of delivery, but could not be essential 
 to its admissibility, and might not be wanted even for confirmation. It is 
 not improbable, that two or three words may have dropped out of the 
 report : it is conceived that if the proposition had been written thus : " A 
 minute in writing like the present, made at the time when the fact it records 
 took place, by a person (since deceased) in the ordinary course of his busi- 
 ness, corroborated by other circumstances, which render it probable that 
 the entry was made when that fact occurred, is admissit^le in evidence," — it 
 would have been more in accordance with the opinions of the other judges, 
 
 none of whom require the limitation as expressed by Taunton, J., 
 *363 *in the language of the report. The expression was, however, 
 
 referred to by Lord Denman, C J., in the case of The King agt. 
 Cope,(l) without disapprobation. 
 
 Entries adm,issible though better evidence attainable. It has been con- 
 tended also, (2) that entries of this nature are not admissible when better 
 evidence is attainable ; but this limitation of the rule was repudiated by 
 Tindal, C. J., who observed : " It has been argued that the decision in 
 Doe V. Turford can only be supported on the supposition that no other 
 evidence could have been given but that which was received. But that is 
 carrying the case further than the facts warrant : for there might have been 
 persons present when the notice was served. In the present case, it would 
 operate as a great hardship to require the testimony of persons who might 
 have been present. The clerk who presented the bill could scarcely, at the 
 distance of two years, point out who it was that answered his application : 
 and if it were necessary to call the persons who resided at the place of pre- 
 sentment, the expense and inconvenience would be enormous." In this 
 respect, therefore, entries of this description stand upon the same footing as 
 entries or declarations made against interest. (3) 
 
 Yerbal declarations. It appears alsof'that the rule is not confined to 
 Twritten entries, but, as in the case of declarations against interest, (4) a 
 ■verbal statement, made in the course of duty and under the other conditions 
 •expressed in the rule, will be admissible in evidence. In the Sussex Peer- 
 ;age Case, Lord Campbell remarked, " where a declaration by word of 
 mouth, or by writing, is made in the course of the business of the individual 
 .n^aking it, then it may be received in evidence, though it is not against his 
 iiiiterest."(5) 
 
 In order to lay a foundation for the admission of entries made in the 
 'Course of business, it must, as in the case of declarations by an agent made 
 Against his interest, (6) be first shown that the party was employed in that 
 busine^ ; and it has therefore been held, that books in the handwriting of 
 a party, sent by him after he had ceased to be an agent to a joint stock 
 company, were not admissible in evidence against the directors of the com- 
 pany, unless it could be shown that the books were kept by him as such 
 agent. (7) ^ 
 
 *364 Entries not evidence for parties in privity. Entries and memoranda, 
 
 of the nature under consideration, seem not to be admissible for 
 
 parties in privity with the pers,ons who made them. For although the 
 
 principle on -which such declarations are received, does not depend on 
 
 ' (1) 7 C. & P. 720, 737. 
 
 (2) In Poole v. Dicas, 1 N. C. 649, 651, 
 
 (3) Vide supra, p. 3 A ! 
 
 (4) Vide supra, p. 304, where cases on the subject are cited, 
 
 (5) 11 CI. & Fin. 113. 
 <6) Vide supra, p. 345. 
 
 ,(7) .Bho-ewsbury v. Blount, 2 M. & G. 476, 
 
SEC. VIII.] Indorsements on Instruments. 297 
 
 the future use of the declaration, still the actual event of its being made 
 available for persons in privity with the maker would, it is conceived, in 
 general, be regarded as proof of an existing motive of interest, suiScient, 
 according to the terms of the rule, to exclude the evidence. It has been 
 seen, in the case of Outram v. Morewood,(l) that entries, admitting a fact 
 adverse to the interest of the person making them, were not allowed to be 
 used for the benefit of persons claiming under the maker. Although no 
 general rule has been laid down by the courts on the subject, even as regards 
 declarations against interest, and although the admissibility of that species 
 of evidence rests on a diiferent kind of presumption from the evidence under 
 consideration, yet it is conceived that, in both instances, the declarations 
 can only be made use of by strangers in interest. 
 
 Itidorsements on bonds. There are two remarkable decisions respecting 
 indorsements of interest on bonds and notes, in which it has been held that 
 indorsements, by the obligee or payee, of the payment of interest or part 
 payment of the principal, as having been made in the course of business, 
 were admissible in evidence for a party claimiug under the obligee or payee, 
 in order to rebut the presumption of entire payment, which would arise 
 from lapse of time ; though it did not appear by negative evidence, but 
 that the declarations might have been made at a time when they would 
 have promoted the interest of the representatives. It is proper to observe, 
 however, that the indorsements in these cases have been represented, by 
 great authorities, simply as declarations against interest. But as they may 
 be considered perhaps as falling within the principle of both rules, it has 
 been thought advisable to defer their examination until those rules had 
 been each separately discussed. 
 
 In the case of Searle v. Lord Barrington,(2) which was an action on a 
 
 bond, brought by the plaintiff as administrator of the obligee against 
 *365 the *defendant as administrator of the obligor, the defendant insisted 
 
 on the length of time that had elapsed between the date of the bond and 
 the commencement of the action, which was about twenty-seven years, as 
 raising a presumption that the money had been paid ; in answer to this, the 
 
 (1) 5 T. R. 121 ; Ante, p. 335. 
 
 (In McKnight v. Lewis (5 Barb. N. T. E. 681), the certificate of a notary, showing the 
 protest of a note and notice to the indorser, made by him while he was not interested in 
 the note, was held competent evidence of the facts stated in it, in an action on the note 
 brought by the administrator of the notary, the note liaving been purchased by the latter 
 some time after its dishonor and protest.) 
 
 (3) 2 Stf..l26 ; S. C, 8 Mod. 279 ; 2 Lord Raym. 1370 ; 3 Brown P. C. 535 ; 3 P. Wms. 
 397 ; 2 Eq. Ca. Ab. 414, u. to Ca. 16 ; 12 Vin. Ab. 85. With reference to this case, see 
 Glynn v. Bank of England. 2 Ves. sen. 42 ; Turner v. Crisp, 2 Str. 827 ; Rose v. Bryant, 3 
 Campb. 323 ; Bosworth v. Cotchett, and Gleadow v. Adkin, i^ifrfls, deepest, note 117. 
 
 In this State an indorsement on a bond or note made by the obligee or promisee, with- 
 out the privity of the debtor, is not admitted as evidence of payment in favor of the party 
 making such indorsement, unless it is shown that it was made at a time when its opera- 
 tion would be against the interest of the party making it ; if such proof be given, it is 
 admissible for the consideration of the jury. Roseboom v. Billington, 17 John. 182. 
 When the indorsement is made by the oflBcer of a bank in the usual course of business, it 
 is sufficient evidence to take the case out of the statute of limitations. Union Bank v. 
 Foster, 14 La. An., 159. Greenleaf states the rule of evidence as laid down in the text ; that 
 the time of the indorsement is material ; but that " if there is no evidence to the contrary 
 the pfesumption is, that the indorsement was made at the time it purports to bear date ;" 
 BO that the burden of proving the date to be false lies on the other party. Vol. 1. §§ 121, 
 122. In Guy v. Mead, where the time when the last of two indorsements was made on a 
 promissory note was the point in issue, a paper containing a computation of interest made 
 by a witness who testified, that when he made it the note bore but one indorsement, was 
 received in evidence to show that the second indorsement was not made at the time it bore 
 date, though the witness coald not recollect the date of the computation independent of 
 the paper. 22 N. Y. R., 462. Such paper or memorandum is rendered admissible by the 
 testimony of the witness, that he made it at or near the time when the fact occurred, 
 and that he made it correctly. Marcly v. Shults, 29 N. Y. R. 346. 
 
 Vol. L 38 
 
298 Mitries in Course of ^Business. [ch. viii. 
 
 plaintiff offered in evidence two indorsements on the bond(l) in the hand- 
 writing of the obligee, one dated December, 1699, the other in March, 1707, 
 purporting that the whole of the interest had been paid up to the time of 
 these dates. (2) Pratt, C. J., before whom the action was fii^t tried, rejected 
 the evidence(3), on account of the inconvenience which would arise from 
 allowing the obligee, in whose custody the bond always remains, to make 
 such indorsements, whenever he might think proper. The plaintiff was 
 accordingly nonsuited. But after an argument in the Court of K-ing's 
 Bench, on a case stated for the opinion of that court, the other three judges 
 held (4) that the indorsements in question ought to have been left to the 
 consideration of the jury; "for the jury (as the report in Strange states) 
 might have reason to believe that it was done with the privity of the obligor ; 
 and the constant practice is for the obligee to indorse the payment of interest 
 — and that for the sake of the obligor, who is safer by siich an indorse- 
 ment than by taking a loose receipt." The report in 8 Mod. is full and 
 strong to the same effect. " It is the daily practice (says that report) to 
 make such indorsements on bonds, and generally at the request of the 
 obligor ; and this is the best and surest evidence of the payment of 
 the money, because acquittances and notes may be lost, whereas indorse- 
 ments will continue as so many brands on the bond, intb whose hands soever 
 it falls, as long as the original, which creates the charge, shall continue." 
 The nonsuit was not set aside, because at that time there was a prevailing 
 notion, that as the plaintiff had been put out of court by the nonsuit, the 
 court could not order a new tl-ial. The plaintiff afterwards "brought a new 
 action, which was tried before Lord Raymond, C. J. ; and the same indorse- 
 ments were again offered in evidence, to repel the presumption of payment 
 of the principal. The counsel for the defendant objected to the evidence, (5) 
 on the ground that it did not appear when those indorsements were made, 
 otherwise than by the indorsements themselves. But Lord Raymond 
 
 was of opinion that the indorsements were evidence to be left 
 *366 *to the' consideration of the jury, and therefore allowed them to be 
 
 read ; and (as one report states) other circumstantial evidence being 
 given to induce the jury to believe that the bond had not been satisfied, (6) 
 the plaintiff had a verdict. The defendant's counsel tendered a bill of 
 exceptions, which was sealed by the chief justice ; and a writ of error was 
 brought in the Exchequer Chamber. The errors were twice argued in the 
 Exchequer Chamber, and the judgment of the Court of King's Bench was 
 aifirmed. (7) A writ of error was then brought in the House of Lords ; and 
 after counsel had been heard on this writ of error, and the judges had 
 delivered their opinions seriatim, the House of Lords affirmed the judgraent 
 of the Exchequer Chamber. The grounds of the decision in the Exchequer 
 Chamber, and in the House of Lords, do not appear in any of the reports. (8) 
 
 (1) See 3 Brown, P. C. 593, and 3 Lord Raym. 1370. 
 
 (3) The dates will be found to be as follows : The bond was dated in June, 1697 ; the 
 first indorsement was in December, 1699 ; the second in March, 1707 ; the obligor died 
 in 1710; the plaintiff's letters of administration were obtained in July, 1738; the first 
 action was tried before Pratt, C. J., in 1724 ; the second action before Lord Raymond, C. 
 J., in 1726. The writ of error in the Exchequer Chamber was in 1739 and the "judgment 
 of the Exchequer Chamber was affirmed, on appeal to the House of Lords, in 1730. See 
 the reports in Strange and Brown. The time of the obligee's death is not stated in any of 
 the reports. * 
 
 (3) See the reports in Strange, and 8 Mod. 
 
 (4) See the report in Strange. 
 
 (5) See the report in Brown. 
 
 (6) Ibid. 
 
 (7) According to the report in Strange, five judges thought the evidence admissible ; 
 two were of a contrary opinion. The report in Brown states that the judgment was 
 affirmed by the opinion of all the judges. 
 
 (8) Upon the argument in the case of Bosworth v. Cotchett, Lord Eldon directed the 
 record in Searle v. Barringtou to be examined, and it appeared that there was no mention 
 
SBC. viii.J -Indorsements on Instruments. 299 
 
 Indorsements on note. This case has been foUojv^ed by that of Bosworth 
 V. Cotchett(l), determined in the House of Lords. In that case the payee 
 of a promissory note had written indorsements of the half-yearly payment of 
 interest, from the time of making the note till his death (jphich happened 
 ■within six years of the date of the note), and the like indorsements had been 
 written by his executor (who died before the commencement of the action) ; 
 and it was adjudged, that these indorsements were admissible in evidence, in 
 answer to a plea of the Statute of Limitations; though there was no 
 extrinsic . evidence offered of the time when the indorsements were made, 
 and though more than six years had elapsed between the death of the 
 maker of the note, and that of the executor. 
 
 But now by the stat. 9 Geo. IV, c. 14 (commonly called Lord Tenterden's 
 Act), § 3, it IS, enacted, that "no indorsement or memorandum of payment, 
 written or made upon any promissory note or bill of exchange, by or on 
 behalf of the party to whom such payment should be made, shall be deemed 
 sufficient proof of such payment, so as to take the case out of the Statute 
 
 of Limitations." (2) 
 367* *In the case of Gleadow v. Atkin,(3) it was held, that an indorsement 
 
 upon ^ bond in the handwriting of the obligee, which appeared to 
 have been made at or about the time when the bond was executed, but 
 which was not proved to have been ever seen by the obligor, stating that 
 the bond was given to the ot)ligee in trust for a third person, was admissible 
 in evidence to connect the payments of interest with the bond, the bond 
 being upwards of twenty years old, but interest having been paid within 
 twenty years by the obligor to the third person. The authorities of Searle 
 v. Barrington and Bosworth v. Cotchett were relied on, and the court 
 appears to have considered these two decisions, as well as the case before 
 them, to fair within the principle, that the declarations of a person having 
 peculiar means of knowledge, having no interest to misrepresent, and mak- 
 mg a declaration against his interest, are admissible in evidence after his 
 death. 
 
 Since the decision in this case, it has been enacted by the statute 3 & 4 
 Wm. IV, c. 42,(4) § 3, that all actions for debt, for rent upon an indenture 
 of demise, all actions of covenant or debt upon any bond or other specialty, 
 and all actions of debt or scire facias upon any recognizance, &c., shall be 
 commenced and sued within twenty years after the cause of such actions or 
 suits ; and -by § 5, it is provided, that if any acknowledgment shall have 
 been made, either by writing signed by the party liable by virtue of such 
 indenture, specialty or recognizance, or his agent, or by part payment or 
 part satisfaction, on account of any principal or interest being then due 
 thereon, the person entitled to such action may sue for the money remaining 
 unpaid, and so acknowledged to be due, within twenty years after such 
 acknowledgment, by writing or part payment or part satisfaction ; and the 
 plaintiff in any such action may by way of replication state such acknowl- 
 edgment, and that such action was brought within the time aforesaid in 
 answer to a plea of the statutg. 
 
 of any circumstances to show that the indorsements were made before the presumption of 
 payment could have arisen. But in Gleadow v. Atkin (1 C. & M. 410, 431), Bayley, B. 
 said that he had discovered, by his own research, that evidence was given of the tiHi& 
 when the indorsements were made. It appears from a note in Brown's Reports^ that 
 C!omyns, B., was for revising the judgment in Searle v. Barrington, and that Lord Eay- 
 mond, C. J., Eyre, J., and Probyn, J., were absent. 
 
 (1) Tried at Leicester Sum. Ass. 1819, before Richards, C. B. ; judgment in the House of 
 Lords, 6th May, 1834. 
 
 (2) It has been suggested that this act was passed in consequence of the decision in 
 Bosworth V. Cotchett. See by Vaughan, B., 1 C. & M. 428. 
 
 (3) 1 C. & M. 410. 
 
 (4) See the corresponding Irish act, 3 & 4 Vict. c. 105, §§ 82, 34. 
 
300 Entries in Course of JSusiness. [ch. viiIs 
 
 This statute does not contain any provisions corresponding with those in 
 Lord Tenterden's Act, that an indorsement of payment made by the payee 
 shall not be proof of the fact of payment, so as to take the case out of the 
 operation of the statute. The law, therefore, with respect to indorsements 
 upon specialties remains as before ; and if the question is properly raised 
 by the pleadings, that is where to an action upon a deed the defendant has 
 pleaded the Statute of Limitations (3 & 4 Wm. IV, c. 42), and the plaintiff 
 has replied a part payment wT.thin twenty years after the cause of action, 
 an indorsement on the deed of such part payment will be admissible as 
 evidence of the fact, even though the indorsement were made by the party 
 to whom the payment was made, whether the plaintiff be himself that 
 party or claim under him. 
 
 *368 *Proqf of time when indorsement made. It may be questionable, 
 however, whether some evidence will not be required to show that 
 the indorsement was in fact made at the time when it bears date. It has 
 been held, that where indorsements of receipts of part of a bond debt were 
 proved to have been made after the presumption of payment had taken 
 place, they are inadmissible ;(1) Pratt, C. J., saying, that it differed from the 
 case of Searle v. Barrington, where the indorsemfents appear to have been 
 made, before they could be thought necessary to be made use of to encoun- 
 ter the presumption. Generally speaking, a presumption will be raised that 
 a document or memorandum was written at the time when it bears date, (2) 
 and before Lord Tenterden's Act this presumption was held, in the case of 
 Smith V. 'Battens, (3) to apply to an indorsement of part payment made by 
 the payee upon a promissory note. That case was decided at Nisi Prius 
 by Taunton, J., upon the authority of Searle v. Barrington, (4) and Bos- 
 worth V. Cotchett.{5) But it has already been stated, that in the former of 
 these cases evidence was given of the time when the indorsement was 
 made. (6) In the latter case the argument, that unless extrinsic evidence 
 was given to show when the indorsements were made, they could not be 
 received, appears to have been urged without success. (7) In the case of 
 Saunders v. Meredith, (8) where a receipt for the payment of interest within 
 twenty years was indorsed upon a bond, there was also direct evidence of 
 the payment of the interest. In the earlier case of Rose v. Bryant, (9) 
 where the defendant produced direct evidence of payment of the principal 
 eum and interest at a certain time within twenty years, the plaintiff was 
 not allowed to encounter that evidence by an indorsement in the hand- 
 writing of the obligee, purporting that interest and, part of the principal 
 were paid at a subsequent time ; on the ground, that supposing the fact to 
 be true that the bond had been satisfied by payment, it would obviously be 
 to the advantage of the obligee to make such an indorsement, which might 
 afterward be used as evidence in an action on the bond. Lord Ellen- 
 borough, C. J., in this case observed, he was at a loss to see the principle 
 on which such receipts in the handwriting of a creditor had some- 
 *369 times been admitted as evidence against the debtor ; and *that he 
 was of opinion they could not properly be admitted, unless they 
 
 (1) Turner v. Crisp, 2 Str. 837. And See by Lord Hardwicke, in Glynn v. Bank of 
 England, 3 Ves., sen. 43. 
 
 (3) Vide post, chapter on Presumptions. 
 ?3) 1 Moo. & K. 341. 
 
 (4) Supra, p. 364. 
 
 (5) Supra, p. 366 ; cited in Smith v. Battens as Parr v. Crotohett, from Stark. EV. (3d 
 ed.) p. 1085. 
 
 (6) Supra, p. 866, n. 3j by Barley, B., 1 C. & M. 421. 
 
 ) See by Vaughan, B. (who had been counsel in the case), 1 C. & M. 428. 
 ;) 3 M. & Ry. 116. 
 ) 2 Campb. 321. 
 
SEC. VIII. J Time when Indorsement made. 301 
 
 vrere proved to have been written at a time when the effect of them was 
 clearly in contradiction to the writer's interest. (1) 
 
 It may, therefore, perhaps be doubted, whether the general doctrine, tljfit 
 a memorandum will be presumed to have been written at the time when it 
 bears date, would be held now to apply to the case of an indorsement or 
 part payment upon a bond, when such indorsement is relied upon by the 
 party who made it, or by those claiming under him ; although it must be 
 admitted that the case of Smith v. Battens,(2) would support such an appli- 
 cation of the rule; and that case has been. cited by the Court of Common 
 Pleas as an example of the doctrige.(3) Rut besides the strong opinion 
 expressed by Lord EUenborough, C. J., in Rose v. Rryant,(4) such an 
 indorsement made by the creditor himself would appear to bear a close 
 analogy to the case of an account signed by a bankrupt charging himself 
 with a balance ;(5) or of an I. O. U. given by a bankrupt,(6) where, though 
 such documents may bear date before the bankruptcy, if they are put 
 forward in support of a petitioning creditor's debt, some evidence besides 
 the date will be required to show that the instrument produced for that 
 purpose was in existence before the act of bankruptcy took place. (7) The 
 ground for requiring such proof is, that as a proceeding in bankruptcy is 
 retrospective, and the object of it is to invalidate all transactions which 
 have taken place between the act of bankruptcy and the time when the 
 fiat takes effect, it becomes necessary, in order to support such an instru- 
 ment, bearing date before the act of bankruptcy, to give evidence in 
 addition to the date. (8) It is the interest of the petitioning creditor 
 to support the commission, and the practice has been established owing to 
 the jealousy which the law feels of a collusion between him an^ the 
 bankrupt. (9) 
 
 This reasoning appears to apply with equal, if not greater force, to the 
 case of an indorsement of part payment made by the payee himself Such 
 an indorsement would, at first sight, appear to fall within the princi- 
 *3'70 pie *which admits declarations that have been made in the course of 
 business or against the interest of the party making them. But 
 when it is put forward by the party as evidence for himself, in order to take 
 his claim out of the Statute of Limitations, it is upon general principles 
 open to some suspicion, and would seem to require corroborative proof to 
 show that it was really made at the time it purports to have been made. 
 
 The rule as laid down by Vaughan, R., in the case of Gleadow v. Atkin,(10) 
 is perhaps the most unexceptionable in such a case, namely, that where a 
 document appears to be made at a certain time, it may go to the jury to 
 say if it were really so made. 
 
 Shop-hook. The first section of the statute 7 Jac. I, c. 12, enacts, that 
 the shop-book of a tradesman shall not be evidence in any action for wares 
 deli-^ered, or work done, above one year after the bringing of the action, 
 
 (1) Lord EUenborough appears to have considered that such indorsements were only 
 evidence as declarations against interest. 
 (3) 1 Moo. & R. 341. 
 
 (3) In Anderson v. Weston, 6 N. C. 296, 803. 
 
 (4) Supra, p. 368 
 
 (5) Hnare v. Coryton, 4 Taunt. 560. 
 
 (6) Wijght V. Lainson, 3 M. & W. 739. 
 
 (7) In Sinclair v. Baggaley (4 M. & W. 312), it was held that a statement of accounts 
 between a creditor and a bankrupt, by whom it was signed, and bearing date previous to 
 the bankruptcy, showing a balance due to the creditor, was prima fa/yie evidence as 
 against the assignees, in an action iJy them against the creditor, that it was written at the 
 tSne it bore date. But the decision in this case has been greatly doubted. See by Alder- 
 son, B., in Gibson v. King, Car. & M. 458. 
 
 (8) Per Cur. in Anderson v. Weston, 6 N. C. 303. 
 
 (9) By Lord Abinger. C. B., in Sinclair v. Baggaley, 4 M. & W. 318. 
 
 (10) 1 C. & M. 410, 4S6 ; Supra, p. 307. 
 
302 Entries in Course of Susiness. [ch. vin. 
 
 except the tradesman or executor shall have obtained a bill- of debt or obli- 
 gation of the debtor for the said debt, or shall have brought against him 
 seme action, within a year next after the delivery of the wares or work done. 
 And the second section provides, that nothing in the act shall extend to the 
 mutual trading and merchandise between tradesman and tradesman. At 
 the time of making that act of Parliament, there was an opinion growing 
 up, that after a certain length of time, a man's shop-books would be evidence 
 for him ; to prevent which thfe act was made.(l) But it appears by several 
 authorities, that shop-books alone, unless under the circumstances which 
 have been noticed, are not admissible evidence, either within or after the 
 year. (2) 
 
 (1) By Lord Hardwicke, C, 2 Ves. 43. 
 
 (2) B. N. P. 233 ; Pitman v. Maddox, 2 Salk. 69 ; Price V: Lord Torrington, 1 Salk. 285 ; 
 S. C, Ld. Eayiu. 732, 745 ; Sikes v. Marshall, 2 Bsp. 705, 745. See further, respecting 
 shop-books, 12 Vin. Ah. tit. evidence, 88, A, b. 15 ; Smartle, v. Williams, Comb. 249 ; 
 Blackeln v. Crofts, Comb. 348 ; Lee v. Lee, Keb. 27 ; Gary's Kep. 45 ; Crouch v. Drury, 
 Keb. 27, pi. 78 ; Digby v. Steadman, 1 Esp. 328 ; Cooper v. Marsden, 1 Esp. 1 ; Ellis v. 
 Cowne, 2 C. & K. 719. 
 
 Note 108. — This is also the law of Alaham/t, Indiana, Kentuehy, Loumana, Mississippi, 
 Missouri and Virginia. 3 and 4 Griffith's Law Reg. U. S. pp. 362, 585, 467, 670, 696 and 
 1139. As to Virginia, shop-hooks were formerly evidence for the party, but the law is 
 altered. Griff. Law Reg. U. S. 362. Farther, that they are not evidence in Louisiana, 
 Bee Civ. Code, 2244 f Cavalier v. Collins, 3 Mart. Rep. 188 ; Syndics of Johnson v. Breed- 
 love, 2 Mart. Rep. (N. S.) 508 ; and Herring v. Levy, 4 Mart. Rep. N. S. 383. Farther, as 
 to Kentucky, see 1 Monroe, 80. Whether books are not evidence in Indiana to the same 
 extent as in New Jersey and New York, for which see infra ? Quere. Harrison ■^. Lagow, 
 1 Blackf Rep. 307. And see this case at length stated infra. (Under the Code, rendering 
 the party a competent witness in his own behalf, the New York Court of Common Pleas 
 held that the rule admitting his books as evidence had ceased with the necessity of resort- 
 ing to that kind of proof ; that though the party may refer to them as a means of refreshing 
 his recollection as to the items, or testify to their accuracy and that he made the entries 
 and knows them to be correct, even where he has forgotten the facts, he could not rely 
 wholly upon his books and the preliminary proofs formerly required ; that he must go 
 upon the stand as a vritness, resorting to his books only where it was necessary. Conklin 
 V. Stamler, 2 Hilton, 422. But the Supreme Court has overruled that decision, holding 
 that the practice of admitting books of account as evidence under the rules adopted by 
 the courts, has become too thoroughly engrafted upon our system of jurisprudence, to 
 justify its being broken up and destroyed by judicial legislation ; admitting that practi- 
 cally the statute may supersede the use of such books as evidence, because being regarded 
 as of the weakest and most suspicious kind, no man vidll be willing to rest his case on 
 such proof, when he can make a better one by his own oath. Tomlinson v. Borst, 30 Barb. 
 42, 45. See also Swain v. Cheney, 41 N. H. 232. He may refer to his books to refresh 
 his recollection, but it seems he cannot after having sworn positively from memory refer 
 to them for the purpose of corroborating his testimony ; Sackett v. Spencer, 29 Barb. 180 ; 
 see post, p. 386.) 
 
 In several of the states, the party's books containing his original entries, may be 
 adduced as evidence, and supporteid by his own oath. This is so in Connectiput, a state 
 which we refer to as resting her practice on the same principle which is common to 
 several others. Although Connecticut has a statute alluding to the party's oath, and 
 giving an action denominated debt on book, which is, in some respects, peculiar to 
 »371 this state (8 Griff. Law. Reg. U. S. 77, 78, Swift's Ev. 81), yet the *statute, in its 
 terms, rather presupposes than enacts that the parties are to be sworn ; referring, 
 evidently, to a former practice in the courts, of receiving such testimony ; and still leaving 
 the limits within which it is to be received, to remain as matter of judicial regulation ; 
 and the statute has always been treated as bearing that construction. 2 Swift's System, 
 186, 167. " Pex'haps it is safe to aflBrm that no action of book debt can be sustained, unless 
 it be for articles, the sale and delivery of which may be proved by the testimony of the 
 parties." Per Daggett, J., in Terrill v. Beeoher, 9 Conn. Rep. 349. Original entries, as 
 evidence, are restricted in this state to charges in book account, of personal property sold 
 and delivered, of services performed and materials found, and the use of any personal 
 chattel hired and returned. 2 Swift's System, 167 ; SVift's Ev. 83. 
 
 Although the rules as to competency are not so strict, in respect to this proof, as in most 
 other states, yet the following prerequisites are laid down as the law of Connecticut, in 
 order to secure full credit. " The book ought to be kept in a fair and regular manner, 
 and the articles truly entered at the time of the delivery or the performance of the service, 
 so as to be consistent with, and support the oath of the party ; for the book is to be con- 
 
SEC. VIII.] Mitries in BooJcs of Account. 303 
 
 sidered as the essential part of the evidence, and the oath of the party as supplementary 
 to it. The entries should he without rasure, alteration or interlineation. Merchants and 
 traders ^ould produce their day-books and ledgers, and so of mechanics whose business 
 requires that mode of keeping accounts. The entries should also appear to be fairly 
 made frqim day to day, in the usual course of their business. Where people make single 
 entries only, the account should be fair, and properly dated. Where the books are not 
 regularly kept ; where there appear to be rasures, alterations, interlineations and additions ; 
 and where the accounts are made out after the dispute has arisen, there is a strong pre- 
 sumption againsi their truth, and the party must have other proof to corroborate his 
 testimony, to entitle him to recover. When a demand is made for the original books and 
 entries, and it is refused, if the party refusing canntit assign a good reason for it, every- 
 thing is to be presumed against him, that the nature of the transaction will warrant ; 
 and the fact ought<to be taken to be as contended by the other party, unless the contrary 
 can be proved by disinterested testimony." Swift's Ev. 81, 82. 
 
 Speaking of the origin and reason of this practice, a learned judge has remarked, that 
 It is " founded on a kind of moral necessity. The whole civilized and commercial world 
 has, in substance, the same thing. The principles of it, I believe, were introduced into 
 this country from Holland by the first settlers of New England. Its origin, doubtless, 
 was in commercial transactions ; but its use became necessary in the common intercourse 
 of life between man and man. That, in this common and necessary intercourse, there 
 should always be witnesses either of the delivery or payment of an article, could not be 
 expected. Hence, a mutual confidence and an interchange of recollection became neces- 
 sary, to furnish testimony founded on means of knowledge common to both." Per 
 Brainard, J., in Beach v: Mills, 5 Conn. Rep. 496, 497. 
 g i The same general practice prevails in Illinois. 3 Griff. Law Eeg. V. S. 423. 
 
 We give, from the same writer, a summary of the practice of the state of Maine,which. 
 will be seen by the authorities from Massachusetts and New Hampshire, to be cited 
 when we come to treat of the subject in a more general way, to coincide with the practice 
 of thqse states. " In actions of assumpsit, for articles delivered, or for work and labor 
 performed, the admission of proof by the hook of the plaintiff himself, appearing to be 
 in his own handwriting, and supported by his suppletory oath, is practiced in this state. 
 It is essential to this kind of evidence, that the charges appear to be in the handwriting 
 of the party, and in such a state that they may be presumed to have been his daily min- 
 utes of business and transactions, in which regard is had to the degree ' of education of 
 the party, the nature of his employment, and the manner of his charges against other 
 persons. When this appearance has been wanting, and the presumption cannot be made, 
 the evidence has usually been rejected as incompetent. The book of the plaintiff, though 
 supported by his oath, is wbolly incompetent to prove the payment of money to third 
 persons, by order, or charges of rent ; for better proof of such demands may be obtained. 
 The books of deceased persons, the charges appearing in their handwriting, are admitted 
 in evidence, although they cannot be verified by oath." 4 Griff. Law Eeg. V. S. 1005, 
 1006. As to MassaohvMtts, see also Griff. Law Reg. U. S. 518. The law of Pennsyhania 
 is the same as Maine. Id. 264. The cases will be given under our general heads. And 
 see Kelly v. Holdship, 1 Browne, 86. As to New Hampshire, see Griff. Law Reg. U. S. 
 
 47, 48, and 3 N. H. Rep. l.'ie. 
 *372 *By statute, in Massachusetts, the plaintiff's account must be copied verbatim, and 
 filed by the time his writ is sprved ; and if the defendant would set off an account, 
 he must copy and file it so early as to give the plaintiff a reasonable time for inspection. 
 8 Dane's Abr. 818, 319. The practice of allowing the party's oath to small money charges, 
 is also peculiar to this state. Cash charges, not exceeding six dollars and sixty-six cents, 
 may be thus supported. Shillaber v. Bingham, 3 Dane's Abr. 321. Per Putnam, J., in 
 Union Bank v. Knapp, 3 Pick. 109. This is equivalent to forty shillings, and evidently 
 arose from the analogous practice of allowing the party to support his charges to that 
 amount in chancery, on accounting before a master. 
 
 In Rhode Island, there is no statute on the subject ; but, by a long and continued 
 practice, it has now become a kind of common law that account-books are evidence. The 
 party offering the books must be first put upon his voir dire, and swear that the books 
 produced are his regular account-books, that the entries therein are the original entries, 
 and were made at or about the time purported by the dates. All articles sold and deliv- 
 ered in the regular course of trade, and all kinds of service, and work and labor done, are 
 considered proper charges in book account. 3 Griff. Law Reg. U. S. 116. Mr. Angell, an 
 eminent lawyer of that state, confirms this account, by saying that the law, with its 
 history, is the same there as in Massachusetts, whose decisions are generally followed by 
 the courts of Rhode Island. Money charges, however, are not admissible. 3 U. S. Law 
 Intelligencer, 237. 
 
 In Sovih Cwrdlina, the account-book containing the original entries is received in evi- 
 dence when accompanied with the suppletory evidence of the oath of the party, clerk or 
 other person making the entries, that they are true. 4 Griff. Law Eeg. U. S. 864, and 
 note 1. There is a statute recognizing, but not expressly authorizing, this kind of 
 evidence. Boyd v. Ladson, 4 M'Cord, 76, 77 ; Slade v. Teasdale, 3 Bay, 173 ; Lamb v. 
 
301 Entries in Course of Business. [ch. viii. 
 
 Hart, 3 Bay, 363. The books of merchants, tradesmen and shopkeepers are conceded 
 evidence. Foster v. Sinkler, 1 Bay, 40; Herlock's Adm'rs. v. Riser, 1 M'Cord, 481. But 
 a struggle was made to exclude mechanics' books. They were, however, held ajso admis- 
 sible, with the books of some few others, whose accounts appeared to come within the 
 same reason. Slade v. Teasdale, 3 Bay, 173 ; Lamb v. Hart, 3 Bay, 363 ; Gordon y. Arnold, 
 1 M'Cord, 517; M'Bride v. Watts, 1 M'Cord, 1. But the courts appear to be unwilling to 
 extend the practice. Foster v. Sinkler, 1 Bay, 40 ; Lynch's Adm'r ads. Petrie, 1 Nott & 
 M'Cord, 130. And a case which allowed the books of a ferryman to prove charges of 
 ferriage (Frazier v. Drayton, 3 Nott & M'Cord, 471), was afterwards questioned (per Nott, 
 J., in Boyd v. Ladson, 4 M'Cord, 77, 78), because ferrymen are not in the habit of giving 
 credit. Upon the general principle, as adopted here, a carpenter's books have been 
 received (Slade v. Teasdale, 3 Bay, 178) ; and a bricklayer's were said to be admissible 
 (Lynch's Adm'r ads. Petrie, 1 Nott & M'Cord, 130, commented upon \tg Nott, J., 4 M'Cord, 
 77) ; especially if it include materials famished (Id.) ; on the same ground, a printer's 
 (Thomas v. Dyott, 1 Nott & M'Cord, 186 ; Richards v. Howard. 3 Nott & M'Cord, 474) ; a 
 tailor's (Deas v. Darby, 1 Nott & M'Cord, 436) ; a seine maker's (8emJ>. Story v. Perrin, 3 
 Rep. Const. Ct. 330); a miller's (Gordon v. Arnold, 1 M'Cord, 517); a physician's (M'Bride 
 V. Watts, 1 M'Cord, 1 ; Lane v. McKenzie, 3 Bail. 449 ; Spencer v. Sanders, 1 Bay, 119) ; a 
 miller's who saws and sells lumber (Darby v. Farrow, 1 M'Cord, 517 ; Boyd v. Ladson, 
 4 M'Cord, 77). See a review of several of these cases, by Nott, J., in Boyd v. Ladson, 4 
 M'Cord, 77, 78. But a scrivener's books, charging for services and commissions, cannot 
 be *eceived ; nor a planter's (Note to Slade v. 'Teasdale, 3 Bay, 173, citing Watson v. 
 Bigelow, for the first, and Geter v. Martin, MSS. for the second) ; nor a schoolmaster's 
 (Pelzer v. Cranston, 3 M'Cord. 328) ; nor a billiard table keeper's charging for games 
 (Boyd V. Ladsqn, 4 M'Cord, 76). Besides, they are immoraJ. Per Nott, J., Id. 78. He 
 compares such charges with those of showmen, rope-dancers and gamblers of every 
 description, and denies that they are evidence, because the subject is immoral. 
 
 Books of original entries of the party are not evidence in this state without his oath. 
 EveHngham v. Langton, 3 M'Cord, 157. 
 
 It has been strongly intimated that original entries in a book are equivalent to a memo- 
 randum in writing ; and will take the case of services performed for, or goods delivered 
 to, a third person, out of the Statute of Frauds. M'Bride v. Watts, 1 M'Cord, 384. 
 
 We come now to the States wherein the admission of this evidence rests upon statute. 
 
 In Delaware, the oath or affirmation of the party, together with his book regularly and 
 fairly kept, is allowed in all cases to charge the opposite party for goods, wares 
 *373 and mercliandise, sold *and delivered, and in respect to other matters properly 
 chargeable in account. The oath or affirmation must first prove that the book con- 
 tains the original entries, made at the time they bear date, and that it is the book of 
 original entries of the party producing it, kept either by himself or his clerk. This is all 
 by statute. 4 Griff. Law Reg. U. S. 1068. 
 
 In Maryland, a book account is provable by the creditor's oath only where it is ten 
 pounds {£, 10) currency or less. A statute provides a summary mode in which accounts, 
 both of non-resident and resident merchants, tradesmen and manufacturers, may be proved 
 by the deposition of such witnesses as would be competent to prove them at common law ; 
 to which the creditor's oath must be added, that he has received no payment or security, 
 &c. 4 Griff. Law Reg. U. S. 943. The statutes give the form of the probate oath, and 
 must be strictly followed. Smoot's Adm'r v. Bunbury's Ex'r, 1 Harr. & John. 136, 137, 
 and note a ; Dyson v. West's Bx'r, 1 Harr. & John. 567. The mere filing an account in 
 bar is no proof of its truth in favor of the party filing it. Berger v. Collins, 7 Harr. & 
 John. 218. The courts do not recognize book accounts as evidence on any other ground 
 than the statute, and refused to receive them under the qualification allowed by the cases 
 in the state of New York. Owings v. Henderson, 5 Gill & John. 134, 143, 143. 
 
 In North Carolina, books of account (by the act of 1756, ch. 4, § ) are to be received 
 as evidence for goods sold or services performed, for all charges witliin two years, on 
 the oath of the plaintiff that the account is just, and that he cannot otherwise prove the 
 delivery, &c. ; and so for executors or administrators, on oath of their belief, &c., (ind that 
 they cannot otherwise prove the account. A copy of the book, on the like oath, may be 
 received, unless the defendant, at joining issue, requires the original book to be produced. 
 The like rule takes place between executors and administrators where both the original 
 parties are deceased, the executors or administrators, being plaintiffs, making oauv as 
 above. But no such oath is allowed, to prove any article or articles, the aipount of which 
 exceeds thirty pounds (£30). The defendant may contest the account by any lawful evi- 
 dence in his power. No book account is admitted at all (upon any evidence) for goods 
 sold or services done, &o., but within five years before suit brought, except in cases of 
 persons out of the government, or where the account is settled and signed. 8 Griff. Law. 
 Reg. U. S. 324. Within the equity of this statute, a set-off may be sworn to. Thomequex 
 V. Bell, Mart. N. C. Rep. 44. 
 
 As to Tennessee, the account given by Mr. Griffith, of the statute, shows it to be a literal 
 transcript from that of North Carolina {supra). The additions mentioned are provisions 
 for summary proof of accounts coming from another state; and defendants are allowed to 
 
8 EC. Yni.] Mitries in Books of Account. 305 
 
 prove their aecountB offered in set-off, in the sartie form as if they were plaintiffs. 4 Griff. Law 
 Reg. U. S. 795, 796. This statute is partially noticed in Easly v. Eakiu (Cooke's Rep. 388). 
 
 In Ohio, on all book accounts, if not of more tlian eighteen months' standing, the party 
 himself may be examined under oath ; and of his testimony the jury are to judge. The 
 courts hold that the eighteen months are to be calculated from the date of the last charge ; 
 and that all kinds of books of account are admissible with the party's oath. 3 Grif. Law 
 Reg. U. S. 403 ; James v. Richmond, 5 Hamm. Rep. 387, 238. But the courts will inquire, 
 and see that the accounts are continuously and fairly kept, and not with a view to evade 
 the limitation. An account so kept is esteemed an entire thing, li^e the evidence of any 
 other chose in action. James v. Richmond, 5 Hamm. Rep. 237, 238. 
 
 In Vermont, a statute gives the action of book account, directing that if the defendant 
 plead any plea which shows, if true, that he ought not to account, the issue shall be tried 
 by a jury. If found for the plaintiff, the court is to appoint auditors. Original books of 
 entries, and the oaths of the parties, each being a competent witness, are admissible evi- 
 dence before the auditors ; and perhaps on any question arising on the acceptance of their 
 report before the court. 3 Grif. Law Reg. TJ. S. 32. Both may be sworn and examined 
 relative to their respective accounts, and cross-examined with respect to each other's 
 accounts. This examination is general, and goes to all the circumstances in support of and 
 defense against the accounts (Stevens v. Richards, 2 Aik. 81 ; Fay v. Green, 2 Aik. 386) ; 
 though it is not a matter of course, that a party may testify respecting a mistake, after 
 the 'tooks are closed and balanced. Whiting v. Corwin, 5 Verm. Rep. 451. But the 
 defendant may testify to a warranty of the goods delivered to him (Stevens v. Richards, 3 
 Aik. 81) ; or that he paid for the goods, or received them for a pre-existing debt (Fay v. 
 Green, 2 Aik. 386) ; and the parties may either of them testify as to the non-joinder 
 *374 of *the proper plaintiffs, where that inquiry is admissible before the auditors. 
 Hilliker v. Loop, 5 Verm. Rep. 116. And so to a settlement, or to payments and 
 items in the party's account from which a settlement may be inferred. Wales v. Corlew, 
 4 Verm. Rep. 12. 
 
 We come now to several states wherein books are receivable for the party who keeps 
 them, without his oath, upon certain preliminary proof, derived from other sources, being 
 first presented. 
 
 In Georgia, merchant's books containing the original entries, with proof of the delivery 
 of the article by the clerk, or, if he be dead, of his handwriting, are evidence. If there 
 was no clerk, then, on proof of that fact, inspection of the books, and the reputation of 
 the merchant for keeping correct accounts, they are evidence of goods sold, but not of cash 
 charges. 3 Grif. Law Reg. U. S. 445. 
 
 The following account of New Jersey, is given by Mr. Griffith, himself an eminent lawyer 
 at the time, residing in that state. Books of account are admitted as evidence of debt for 
 goods and articles sold, work and labor performed by a man, his servants, &c., as also 
 for materials found and provided in the ordinary course of a man's business and employ- 
 ments. The book must contain the original entries ; and be first proved to be such book 
 of the party producing it. A ledger, or book in which the original entries are posted up, 
 is not evidence, nor admissible, otherwise than as used to facilitate, on trial, a reference to 
 the original entries. If, however, the book of the party is kept ledgerwise, containing the 
 original entries, and this is proved to be the manner in which he keeps his accounts, it is 
 admissible. But books so kept are always received with suspicion ; and if, on the face of 
 the account, it appears to contain fabricated entries, or such as are not original, or are 
 evidently altered, it would be rejected. As to items in a book account for cash lent, money 
 paid for another, &c„ whether such charges in a man's account can be considered as proved 
 by an entry in his book, or, in other words, come within the legal acceptation of a book 
 account, has not been determined by the courts. As to entries of special contracts, orders 
 paid, &c., and in all cases where, from the natute of the transaction, there must exist 
 higher evidence of the charges, than a man's own entry of them, such entries would be 
 rejected as not the proper subjects of a book account. But, in reality, there is no settled 
 law on this head ; and books regularly proved seem to be admitted with little restriction, 
 subject, however, to be examined and weighed as to their truth and credit by the jury, 
 with the advice of the court in point of law ; and open to be disproved in whole or in 
 part by all legal testimony on the part of the defendant. The oath of neither party la 
 admitted. 4 Griff. Law Reg. U. S. 1299, 1300. And see Cole v. Anderson, 8 Halst. 68. 
 
 Whether a charge for money lent be receivable, the judges differed in Wilson v. Wilson 
 (1 Halst. 94). They thought it might, and appear so to have held in Craven v. Shaird (2 
 Halst. 345) But the latter case was much questioned in Carman v. Dunham's Adm'rs 
 (6 Halst. 189), where, the charge standing alone against the party, it was rejected. An 
 entry of cash paid for the defendant to a third person is not admissible. Jones v. Brick, 
 3 Halst. 369. The judges also disagree as to receiving original entries kept ledgerwise. 
 By Kirkpatrick, C. J., in Wilson v. Wilson (1 Halst. 94), they have been received ; per 
 Rossel, J., in Leveringe v. Dayton (4 Wash. C. C. Rep. 698), they have been disallowed.; 
 and he and Washington, J., disallowed them in that cause. 'The books are sufficiently 
 identified, by proving that they are in the party's handwriting ; and that in one of them 
 (the waste-book) the witness now sees a charge which was true, and which the witness 
 
 Vol. L 39 
 
306 Entries in Course of Business. [ch. vin. 
 
 Ijad settled, though he never saw the books Before the time of the trial. Shute v. Ogden. 
 2 Penningt. Rep. 931. But it is not enough that the witness sees two or three charges in 
 the books, now produced, of articles which the witness had of the party. Here is nothing 
 to show that it was a book of original entries made as the transactions occurred. It might 
 have been a copy made just before the trial. Cole v. Anderson, 3 Halst. 68. Nor is it 
 . enough to warrant the reception of the books by a justice, that'' they were proved before 
 him on a former trial. Linberger v. Latourette, 3 South. 809. 
 
 In New York, as in New Jersey, this kind of evidence is not restricted to any particular 
 class of citizens. See the remarks of Savage, C. J., in Kathbun v. Bmigh, 6 Wend. 407, 
 409. The party is not admissible as a witness. To make the books competent, it must 
 appear : 1. That there wafe a regular dealing between the parties ; not merely a single charge ; 
 2. That the bookkeeper had no clerk ; 3. That some of the articles charged were delivered ; 
 4. That the books produced are the books of account of the party ; and 5. That he 
 *375 keeps fair and honest books, to *be shown by those who have dealt and settled with 
 him. When all this is shown, the books are competent evidence ; and the judge 
 may submit them to the jury. Vosburgh v. Thayer, 18 John. Rep. 461. And see Linnell 
 V. Southerland, 11 Wend. 508. It seems to be no objection, that part of the entries are 
 made by the party, and part by his clerk. M'AUister v. Reab, 4 Wend. 483. And proof 
 that a mechanic had delivered two of the articles charged in his book. Was held to satisfy 
 the third requisition, in V(5sburgh v. Thayer. Linnell v. Southerland, 11 Wend. 568. See 
 also per Sutherland, J., in the People v. Genung, 11 Wend. 21.. In this state, too, though 
 the courts adhere in other cases strictly to the rule that a witness must remember ordinary 
 facts, independelitly of his memorandum made cotemporaneously, yet account-books for 
 goods sold and delivered being proved by a clerk, are memoranda which become in a 
 degree evidence of themselves. Though the clerk can remember only from seeing the 
 charges, yet the original entries made by him maybe produced, and then they become 
 evidence. Benib. per Savage, Ch. J., in Lawrence v. Barker, 5 Wend. 306. 
 
 The following is the whole of the only reported case in Indiana, which we find in the 
 books of that state upon this subject. But we have none of its reports before us later 
 than November, 1881 : " In assumpsit for goods sold and delivered, the plaintiflfe, Lagow 
 a;nd others, to prove their demand, offered in evidence certain books of account, proved to 
 be those of the Steam Mill Company. Held, that the books not being proved to be the 
 plaintiffe', were inadmissible." Harrison v. Lagow, 1 Blackf Rep. 307, Nov. 1824. 
 
 We have thus, as far as our materials would admit, kone through with the several 
 states which receive the party's entries in proof, and noted the local peculiarities of each 
 as they arise, either upon statute or a difference in the application of the general principle 
 upon which the party's books are receivable. We have seen that among these, Georgia, 
 New Jersey, New York, and perhaps Indiana, though they receive the entries, reject the • 
 party's oath ; while Connecticut, Illinois, Maine, New Ham/psMre, Massachusetts, Pennsyl- 
 vania, Rhode Island, South Carolina, Delaware, Maryland, North Carolina, Tennessee, 
 Ohio, and Vermont, admit both. In respect to the last fourteen states, there are certain 
 rules in common growing out of this mixed proof, which' we next propose to notice ; pre- 
 mising that where, as in Maryland, or Vermont, the statute may have fixed the forms of 
 probate, or prescribed the extent to which parties may testify, or given any other direction, 
 our remarks will be so far inapplicable. 
 
 With regard to the suppletory oath, the following particulars are to be considered : 
 
 1. Wherever a man's supplfetory oath, were he plaintiff, would be receivable, it is equally 
 so when the account is offered as a set-ofl'. Thomequex v. BeU, Mart. N. C. Rep. 44. 
 
 2. The objection that witnesses are interested, does not lie in respect to matters whereof 
 the party's suppletory oath is allowed. For as he, having the greatest interest, is received 
 all others may be. Swift's Syst. (ed. of 1776), p. 171. And so though the merchant be 
 called to prove his account in anothA cause wherein he is interested, this cannot be 
 objected (Black v. Shooler, 2 M'Cord, 398) ; as if he become insolvent, and be called to 
 prove tliem for his assignees. Id. But it does not follow that because the party may be 
 a witness, his wife may, though so far as interest goes, they would stand in pari ratione. 
 But the wife is excluded, for th« reason that her admission may interrupt the harmony of 
 the matrimonial connection. Carr v. Cornell, 4 Verm. Rep. 116. 
 
 3. The oath must, it seems, in all cases, be administered in court ; and cannot be received 
 in the form of a deposition. Frye v. Barber, 2 Pick. 65. The party must be sworn, and 
 produce his books in court ; and his testimony cannot, like that of another witness, be 
 taken in commission. Nicholson v. Withers, 3 M'Cord, 428. His entries cannot be proved 
 unless his book be present ; and a distant residence from the district affords no excuse for 
 their non-production. Furman v. Peay, 2 Bail. 894. 
 
 4. The form of the oath, which is the voir dire, shows that the party Is not a general 
 witness. Shaw v. Levy, 17 Serg. & Rawlo, 99, 100. And see Dodge v. Morse, 8 N. H. 
 Eep. 233. But being allowed to testify concerning the principal subject, he may do so in 
 respect to all collateral circumstances necessarily connected with it ; as the price, quantity, 
 quality, time, delivery, performance of services, and generally in support or confutation 
 of all articles properly charged, freely and fully. Swift's Ev. 83 ; Bryan v. Jackson, 4 
 Conn. Rep. 292; per Ellsworth, J., in Phenix v. Prindle, Kirby, 209; per Daggett, J., ia. 
 
SEC. Till.] Entries in Books of Account, 307 
 
 Weed V. Bishop, 7 Conn. Eep. 131 ; and in Terrill v. Beecher, 9 Conn. Rep. 349 ; 
 376* Shaw v. Levy, 17 Serg. & Rawle, 99, 100. He may *aocordingly prove the admis- 
 sions of his adversary, or facts whence to infer an admission. 'Johnson v. Gunn, 3 
 Hoot, 130 ;. Bryan v. Jackson, 4 Conn. Eep. 292. He "is permitted to state, in the first 
 instance, only that the book produced is his book of original entries, that the charges are 
 in his handwriting, that they were made at the times they purport to have been made, and 
 at or near the time of the delivery of the articles, or the performance of the services. He 
 may, however, be cross-examined by the other party, in which case his answers become 
 evidence, and he is entitled to give a fuU explanation of any matter in relation to which 
 an inquiry is made on the cross-examination.' But a cross-examination does not authorize 
 him to testify to independent facts, not necessary to the explanation of the facts respecting 
 which he may have been questioned upon the cross-examination. It does not make him 
 a witness in chief in the cause." Eastman v. Moulton, 3 N. H. Rep. 156. If the parties 
 settle, but in terms except all articles omitted in the credit, as to these the account is still 
 open, and the party's oath may be received. Austin v. Meigs, 3 Verm. Rep. 58. And this 
 though a note be given for the supposed balance. Id. But the parties are not unlimited 
 witnesses. The plaintiff cannot testify to any special agreemejit of the defendant (John- 
 son V. Qunn, 2 Root, 130) ; and it is said not even to a promise to pay interest on the debt 
 as it stands charged upon the book (pei Ellsworth J., in Phenix v. Prindle, Kirby, 209) ; 
 nor to a charge of a double credit {8emb. Whiting v. Corwin, 5 Verm. Rep. 451) ; nor, per- 
 haps, as to a mistakbn omission of a charge on settlement, though he might as to the 
 fact of the delivery. 5 Verm. 457. By Punderson v. Shaw (Kirby, 150), he shall not be 
 a witness in such a case. Whether he can testify to a special agreement in any case, 
 quere. See Kirby, 209 : 2 Aik. 83, 889 ; 4 Conn. Rep. 292. But where any matter is 
 pleaded in bar, or where, in any other way, a matter entirely collateral arises, the party 
 cannot testify as to that. 2 Swift's Syst. 171 (ed. of 1796). Thus he cannot testify to a 
 release or a tender. Per Daggett, J., in Weed v. Bishop, 1 Conn. Rep. 132 ; and in Terrill 
 v. Beecher, 9 Conn..Rep. 349. And in replevin,,where a party's entries were in question, 
 it was held, that he might be interrogated on cross-exa,mination as to the books being 
 his, and the time of the entry ; but that he could not be even cross-examined as to other 
 matters, aside from and entirely disconnected with the books, which arose and were 
 drawn in question by that action. Shaw v. Levy, 17 Serg. & Rawle, 99, 100, Nor is the 
 party's oath receivable to take the case out of the Statute of Limitations. Weed v. 
 Bishop, 7 Conn. Rep. 128. 
 
 The party claiming the account on his oath must answer all pertinent questions, even 
 if the answer go to criminate him, or the account will be disallowed. Mattocks v. Owen, 
 5 Verm. Rep. 6. 
 
 5. The party's general credit may be impeached, the same as that of any other witness ; 
 «. g. it may be shown that he is unworthy of belief on his oath. Kitchen v. Tyson, 3 
 Murph. 314. So of his particular credit ; if he swears corruptly false as to one item, the 
 whole testimony shall be rejected. Otherwise, if he merely mistake, or is not corrupt. 
 In this, as in other cases, fcUsus in uno, falaus in mn/nJSym. Sanders v. Leigh, 2 Har. & 
 M'Heu. 380. 
 
 6. The entry must be made by the very party who takes the oath. Eastman v. Moulton, 
 3 N. H. Rep. 156. If by a clerk, the party caimot be received till the death of the clerk 
 be shown, or that he is at least beyond the power of the court. Sterritt's Ex'rs v. Bull, 1 
 Binn. 234. Nor indeed, then, can the party's oath be received ; but there must be other 
 proof of the handwriting ; and this was held where the entries were made by the party's 
 daughter, who had died. Marpser v. Smith, 1 Browne, app. 43. This is plain ; because 
 the party has the usual common-law proof at command, which is better than his own 
 oath. Aiid so where there are two parties partners, and the entries are made by one, he 
 must be sworn, and he only, unless he be dead or absent from the state ; and then, when 
 this is clearly shown, the other may be received. Foster v. SUnkler, I Bay, 40 ; Walker v. 
 Parfcham, 3 M'Cord, 295. So if the sole party be clearly shown to be out of the jurisdic- 
 tion of the court, his handwriting may be proved. Spence v. Sanders,* Bay, 119. But 
 farther the courts will not go ; and though the party-enterer reside out of the state, if he 
 be within it while the court is in session, his oath shall not be dispensed with. Walker 
 V. Parkham, 3 M'Cord, 295. Even his absence fromi the state was afterwards denied as 
 an excuse, and proof of his hemdwriting and a book was refused. It is always in his 
 power to attend, and it is his own fault if he do not. It is otherwise with a clerk, as in 
 
 Elms V. Cheevis, (2 M'Cord, 349) ; and the three cases of Foster v. Sinkler, Spence 
 *377 V. Sanders, and Walker v. *Parkham, were all on executing writs of inquiry. 
 
 Such secondary proof is never allowed where the party appears and regularly con- 
 tests the cause. Douglass v. Hart, 4 M'Cord, 257. 
 
 But the books of deceased persons are considered as sworn to ; and come with the same 
 force as books supported by the oath of living parties. Swift's Ev. 83 ; per Hosmer, C. J., 
 in Dwight v. Brown, 9 Conn. R. 93 ; Prince, Adm'r v. Smith, 4 Mass. Rep. 455, 458, sejraft* 
 And the course, where the party has died, is to prove his handwriting, which tlien» shall 
 be received as prima facie evidence of the services performed (where it is a case of ser- 
 vice), and the materials delivered, and the retainer of the plaintiff to perform the services, 
 
308 JSntries in Course of Business. [ch. tiii. 
 
 just as it would be evidence both of the sale and delirery of goods. M'Bride v. Watts, 1 
 M'Cord, 384. The personal representative may be sworn to identify the book and prove 
 the deceased's handwriting. Dodge v. Morse, 3 N. H. Rep. 333. And where he proved 
 that the entries were in the hand of a third person, who had not, as he thought, after dili- 
 
 fent inquiry, been heard of for seven years, and that he knew of no other who could prove 
 is hand, the account was allowed to go to the jury. Stevelie v. Greenlee, 1 Dev. 317. 
 Where the books were burnt, it was held that the party might give secondary evidence 
 of their contents ; but not by a copy from the party's account, verified only by his own 
 oath. He should prove the original by evidence other than himself, as he would any other 
 paper. Prince v. Smith, 4 Mass. Rep. 455 ; Holmes v.' Harden, 13 Pick. Rep. 169. 
 
 We come now to the consideration of this evidence in its connection with the principle 
 of " moral necessity," as it has been recognized in at least seventeen, and perhaps eighteen 
 states of the confederacy, if not, as remarked by Brainard, J., in Beach v. Mills (supra), 
 through "the whole civilized and commercial world." For the extent to which it pre- 
 vails on the continent of Europe, the learned reader may consult the references by Mr. 
 Angell, in 3 U. S. Law Intelligencer, 187, and in Mr. Wheaton's note, in the 3d Vol. of his 
 reports, pp. 117, 118. 
 
 In the eye of the English law, the party's books are less than secondary evidence for 
 him. They are no evidence, being hearsay, of his own fabrication. And it will be seen 
 by all the American decisions, that their departure from that rule gives no higher character 
 to this sort of evidence than a secondary one. It is received upon the presumption that 
 unless this can be received, there will be a total failure of proof. And whenever 
 that presumption is repelled by its appearing, in any way, that the ordinary common-law 
 proof does in truth exist, in relation to all or any of the items charged, the book proof is 
 rejected as inadmissible. The reason for the exception then ceases ; and the party can no 
 more be entitled to introduce his entries than he would be a copy of documental evidence, 
 because he had neglected to obtain the original. He must, in such a case, first restore the 
 presumption, by proving that what appears to be plainly in his power, is in fact placed 
 beyond it. We are then to look, and see to what class of dealing the law has prima fade 
 ascribed a destitution of the iisual means of proof ; and we shall find a general concur- 
 rence among the several statutes, adjudicatioils and dicta, in pointing to the daily sale and 
 barter of merchandise and other commodities, and the performance of services and letting 
 of articles to hire : circumstances so frequent in succession, and generally so trivial in 
 their individual amount, that the procuring of formal proofs would not compensate for 
 the time bestowed. In relation to these things, all mankind, with few exceptions, have 
 fallen into the line of daily and brief memoranda, called accounts ; and the strong pre- 
 sumption always is, that entries in that form have been made, and that no other proofs 
 exist. Such a presumption from the general and usual course of business, is a common 
 act of the law. But whether that law will hazard facilities to fraud, by letting in book 
 proof as the consequence of this particular presumption, is a question for its own wisdom 
 to determine. 
 
 1. The mpre usual and important test by which to indicate the competency of this 
 proof, is the subject matter of the book account. This is briefly said to be property sold 
 and delivered, services performed, and materials found and provided, and the use of prop- 
 erty hired and returned. It is not considered an objection to entries of any charges 
 proper in account, that the price was specially agreed on. 3 Swift's Syst. 188 ; Newton v. 
 Miggins, 2 Verm. Rep. 366, 369. 
 
 Property sold amd delivered. This is of course confined to personal property (Swift's 
 Ev. 83) ; and though the rule intended generally was of smaS values, and many items, it 
 cannot be practically governed by a distinction of a number and magnitude ; and two 
 articles only — one 78 bushels of salt, and the other 132 gallons of rum — were allowed as 
 proper subfects of this proof. Shillaber v. Bingham, 3 Dane's Abr. 321. So a single 
 *378 item of 2,088 lbs. of t^ooI. Leach v. *Shephard, 5 Verm. Rep. 368. It may be of 
 articles suj^plied to the defendant's wife or children, where he has turned them 
 away and neglects to provide for them (Swift's Ev. 84) ; or articles for which the deffend- 
 ant agrees to pay in a particular mode, e. g., in goods or produce, or part in goods, and 
 part in a note at the bank. Swift's Ev. 84. So of lottery tickets, sold and delivered. 
 Mills V. Brownell, 3 Verm. Rep. 463. Entries were allowed in proof of necessaries 
 advanced by a guardian to his ward. Mills v. St. John, 2 Root, 188. And a shopkeeper's 
 charges for spirituous liquors in small quantities were allowed in evidence, though he 
 showed no license. Herlock's Adm'rs v. Riser, 1 M'Cord, 481. But to warrant a charge 
 the goods must be delivered in all cases (per Henderson, J., in Howell v. Barden, 3 Dev. 
 449) ; and, accordingly, the right to charge was denied where the articles were not deliv- 
 erable till paid for in a particular way. Read v. Barlow, 1 Aik. 145, 148 ; S. C, 1 Verm. 
 Rep. 97, by the title of Barlow v. Read. Entries were made after the goods were ordered 
 absolutely, yet, being before they were actually delivered, the book was disallowed in 
 evidence. Rhoades v. Gaul, 4 Rawle, 404. 
 
 The right to charge must exist at the moment of delivering the article, not arise after- 
 ward, in consequence'of some special circumstance or contract. Money delivered, to be 
 applied by the defendant, but which is misapplied, cannot be charged. Bradley v. Good- 
 
SEC. vm.] Entries in Account Boohs. 309 
 
 yeai', 1 Day, 104 ; Slasson v. Davis, 1 Aik. 73, 74. So money advanced in consideration of 
 an agreement to deliver goods. Peck v. Jones, Kirby, 289. And where an infant agreed 
 to work for the plaintiff, who furnished him with clothes, &c., but the infant left him in 
 violation of the agreement, held that the plaintiff could not therefore charge, and give 
 his charges in evidence, to maintain book debt for the advances. Terrill v. Beecher, 9 
 Conn. Rep. 344. 
 
 Services performed Swift's Ev. 83 ; Newton v. Higgins, 2 "Verm. Rep. 366. This head 
 includes an attorney's bill, which may be proved by his original entries (Charlton v. Lawry, 
 Mart. N. C. Rep. 26); work done by the plaintiff's slaves for the defendant (Mitchell v. 
 Clark, Mart. N. C. Rep. 44 ; a postmaster's charges for postage, and a justice's charges 
 for official services (Sargeant v. Pettibone, 1 Aik. 355) ; work by the month, at a fixed 
 price, payable at a future day (Fry v. Slyfield, 3 Verm. Rep. 246) ; services in making 
 betterments on the defendant's land, being done at his request (Minor v. Erving's Ex'rs, 
 Kirby, 158) ; repairs done by one joint owner of a ship for another (Bowers v. Dunn, 2 
 Root, 59) ; and services as a counselor at law (Bell v. M'Lean, 3 Verm. Rep. 185). But 
 work and labor must, in general, be executed before it is charged. Per Henderson, C. J., 
 in Howell v. Barden, 3 Dev. 449. 
 
 Entries are proof of the use of anything hired and returned, e. g., oxen, horses, &o. 
 (Swift's Ev. 83 ; Easly v. Eakin, Cooke's Rep. 38) ; intwest on book debt, where the prom- 
 ise is implied or express (Phenix v. Prindle, Kirby, 207) ; and freight, where the amount 
 is left to be implied or is agreed upon (Boardman v. Keeler, 2 Verm. Rep. 65). 
 
 Every one sees, in the above list of items, that direct, frequent and simple kind of deal- 
 ing which is, of course.committed to the book account, and which may be presumed to 
 rest in the exclusive kntowledge of the parties. ' 
 
 On the other hand, the authorities exhibit several instances not coming within that 
 reason, and which they, therefore, put to common-law proof Entries in the following 
 cases have been held inadmissible, as not presenting the usual subjects of book charge : 
 The claim by one town against another, for keeping a pauper, on the mere ground that he 
 is chargeable to the defendant town, there being no actual privity of contract (Swift's Ev. 
 83) ; and a special unexecuted contract, as an agreement to receive goods, and a refusal 
 (Swift's Ev. 84). The charge should not be of a tort, nor any consequence of it (Swift's 
 Syst. 168 ; Swing v. Sparks, 2 Halst. 59) ; but only of such things whereof the prices can 
 be ascertained in market (Swing v. Sparks, 2 Halst. 59) ; nor of a bond, note, receipt, nor 
 special agreement (per Ford. J., in Wilson v. Wilson, 1 Halst. 94). In an action for clocks 
 sold, the defendant's entry, that he received them on commission, was rejected, the court 
 saying that an agency could not be so established. Baisch v. Hoff, 1 Yeates, 198. Nor 
 can a special contract be contradicted by a book entry. Pritchard v. M'Owen, 1 Nott & 
 M'Cord, 131, note a. Nor can it be shown, by the defendant's entry, how much time the 
 plaintiff's slave lost while engaged at work for the defendant. M'Kewn ads. Barksdale, 
 
 2 Nott & M'Cord, 17. Nor where the plaintiff goes on his original entries will the defen- 
 dant be allowed to give in evidence his own counter entries of the same work. Summers 
 V. M'Kim, 12 Serg. & Ravvle, 405. Under no circumstances can a charge that goods were 
 
 delivered on bailment, e. g., on commission, be supported by the party's book. Kerr 
 *379 V. Love, 1 Wash. Rep. *172. Nor is a special agreement to pay interest chargeable 
 
 (Phenix v. Prindle, Kirby, 207, 209 ; quere, vid. 2 Aik. 88, 389) ; nor a mistake in 
 a former settlement. Punderson v. Shaw, Kirby, 150 ; Rogers v. Moor, 2 Root, 58. But 
 see Whiting V. Corwin, 5 Verm Rep. 451, 457. Work and labor must, in general, be 
 executed before it can be charged. The party cannot make valid entries of a special con- 
 tract to employ him, and in this form claim damages for non-performance (per Henderson, 
 C. J., in Howell v. Barden, 3 Dev. 449) ; nor of a special collateral promise by A. to pay 
 for goods delivered to B. (Poultney v.^Ross, 1 Dall. 238) ; nor of a charge against an attoi^ 
 ney for attending as a witness in behalf of his client, for the latter is primarily liable; 
 the attorney only in consequence of an express personal engagement (Sargeant v. Petti- 
 bone, 1 Aik. 355) ; nor of a demand due from an indemnitor (Stocking v. Sage, 1 Conn. 
 Rep. 75) ; nor any collateral undertaking, as that "if A. employ you I will see you paid" 
 (Skinner v. Conant, 2 Verm. Rep. 75) ; nor any mere claim for damages for any tortious 
 act or neglect, or for any breach of contract (per Hutchinson, J., in Fry v. Slyfield, 3 Verm. 
 Rep. 249) ; nor of money lent (Case v. Potier, 8 John. Rep. 211 ; Vosburgh v. Thayer, 12 
 John. Rep. 462 ; Ducoign v. Schreppel, 1 Teates, 347); nor money had and received on 
 notes delivered, to be collected and applied, but wMch were collected and not applied 
 (Farrand v. Gage, 3 Verm. Rep. 326) ; nor of a balance struck, as of ten dollars for a tres- 
 pass (per Ford, J., in Wilson v. Wilson, 1 Halst. 94) ; nor a settlement or balance struck 
 on book account (Prest v. Mersereau, 4 Halst. 268 ; and see Worman v. Boyer, 14 Serg. & 
 Rawle, 212 ; per Ford, J., in Wilson v. Wilson, 1 Halst. 94) ; nor of money paid to or for 
 the persons sought to be charged (Ducoign v. Schreppel, 1 Teates, 347 ; Prince v. Smith, 
 4 Mass. Rep. 455 ; per Tilghman. C. J., in Juniata Bank v. Brown, 5 Serg. & Rawle, 231 • 
 Sargeant v. Pettibone, 1 Aik. 355 ; Sawyer v. Proctor, 2 Verm. Rep. 580 ; Jones v. Brick] 
 
 3 Halst. 369) ; yet particular necessity has been received to create an exception, as where 
 the disbursements related to a distant commercial transaction, and were charged by the 
 remote agents and consignees against the owners of a vessel (Seagrove v. Redman, 2 
 
310 Entries in Course of Business. [ch. viii. 
 
 Yeates, 354 ; S. C, 4 Dall. 153) ; nor of rent (Prince v. Smith, 4 Mass. Rep. 455) ; nor use 
 and occupation of a wharf, or any other real estate (Wilmer v. Israel, 1 Browne, 357 ; 
 Beach v. Mills, 5 Conn. Rep. 493 ; Swing v. Sparks, 3 Halst. 59 ; Case v. Berry, 8 Verm. 
 Rep. 333). 
 
 3. As we noticed on introducing these instances, even though the case be prima faeie a 
 proper one for proof by entries, if it appear either on the face of the charge, or in any 
 other way (e. g. by the party's oath in states where that is receivable), that there is, in 
 fact, living or attainable proof of the item, independent of the entries, the latter are then 
 inadmissible ; for it being apparent that the ordinary common-law proof exists, which is 
 superior in degree, that must be produced. It can only be dispensed with, and the entries 
 received, where it is shown to be in truth beyond the reach of the party. The common 
 case in New York is where the party has a clerk (Vosburgh v. Thayer, 13 John. Rep. 
 462) ; though one case seems to hold that the entire entries may be received, though part 
 were made by the clerk, and the rest by the party-. M'Allister v. Reab, 4 Wendell, 488. 
 But quere as to such entries as appear to be made by the clerk ; for other cases have, with 
 a laudable jealousy of such sell-fabricated evidence, adhered closely to the rule that 
 where the entry is made by the clerk, nothing shall excuse his absence except his death. 
 Kenedy v. Fairman, 1 Hayw. 458 ; Whitefield v. Walk, 3 Hayw. 84. In the first of these 
 cases, the clerk was absent in the West Indies, and in the other at South Carolina ; yet 
 held no excuse in either case. Some cases, however, allow the excuse that the clerk is 
 permanently beyond the power of the court. Sterritt's Ex'r v. Bull, 1 Binn. 334. Upon 
 the same principle, a 'schoolmaster's original entries are no proof; for he has usually 
 many witnesses by whom to prove his services ; and he must'^Lvail himself of them. 
 Pelzer v. Cranston, 3 M'Cord, 328. Thfe analogy of these cas*8 has been carried by 
 authority into a variety of transactions; and the courts very judiciously appear deter- 
 mined to act on the same principle in regard to all matters fonuing the subject of 
 evidential account-books, "rrue, in one case, a lime burner and vendor's book was 
 received to prove large sales of lime delivered out by servants and agents, where the party 
 was generally present, either at the kiln, when the loads were placed in wagons, or else 
 saw the delivery ; and this, though he was absent on a very few occasions (Curren v. 
 Crawford, 4 Serg. & Rawle, 3) ; and in another case, entries made by the party from a 
 memorandum of a servant were received (Ingraham v. Bockius, 9 Serg. & Rawle, 385) ; 
 yet the subsequent cases of Smith v. Lane (13 Serg. & Rawle, 80, 83), and Kessler 
 *380 V. M'Conachy (1 Rawle, 441), *both stated infra, manifest a strong tendency to 
 greater strictness, and a conformity with the other cases in the state of Pennsyl- 
 vania and elsewhere. But see Kaughley v. Brewer, 16 Serg. & Rawle, 133, 134, stated 
 also infra. In a former case in that state, charges for work done by a servant were dis- 
 allowed as evidence, the court saying such evidence was allowed from necessity, and 
 where the work has been done by a third person, the necessity does not exist. He can 
 prove it. " Cessante ratione, cessat ipsa lex." Wright v. Sharp, 1 Browne, 344. So, 
 charges for work done by servants; for they are competent witnesses. Wright v. Sharp, 
 1 Browne, 344. If the goods were delivered to a third person on account of the vendee, 
 the books are not evidence (Kerr v. Love, 1 Wash. Rep. 172) ; not even though they were 
 the vendee's servants. Eastman v. Moulton, 8 N. H. Rep. 156. So, though the books of 
 a printer be receivable, they are no farther so than to prove the retainer to do the work ; 
 for the files may be produced to show the qv-antum, and the price may be proved by 
 others (Richards v. HowaTd, 2 Nott & M'Cord, 474) ; nor are a tailor's books receivable to 
 prove goods delivered to the defendant's ward by the order of the defendant. Here they 
 are' mere proof of the delivery. Books are, in general, not allowed to prove a direction 
 or instruction to deliver to a person other than the defendant. Deas v. Darby, 1 Nott & 
 M'Cord, 436. The charge on its^face, purporting to be of goods delivered to another on 
 the defendant's order, it was rEgected as incompetent. Tenbroke v. Johnson, 1 Coxa's 
 Bep. 288 ; Townley v. Wooley, 1-Coxe's Rep. 877. And where goods were delivered on 
 written orders, an account was excluded as evidence, for that reason among others. The 
 orders should be produced, or otherwise proved on accounting for their absence. Smith 
 V. Lane, 13 Serg. & Rawle, 80. Where the goods are delivered out by another or by 
 others, the account kept by them, or by one on their information, cannot be received ; for 
 the party has other proof by those who delivered the goods, and they must be produced, 
 or their absence accounted for. Smith v. Lane, 13 Serg. & Rawla, 81. Where the charge 
 was for medicine and attendance on an aged menial servant of the defendant, the 
 plaintiff's book wos received as usual ; but it was held that the defendant's agreement to 
 pay must be proved by evidence oHunde. Coffin v. Cross, 3 Dane's Abr, 333. 
 
 Yet, charges for goods sold and delivered to, and services performed for one on account 
 of another, nave been sustained by the claimant's original entries in Connecticut, without 
 showing the death or absence of the witnesses. But the question was not presented in 
 the above points of view ; and some reliance seems to have been placed on the statute of 
 that state as controlling the case. Bryan v. Jackson, 4 Conn. Rep. 388, 393 ; Swift's Ev. 84. 
 
 3. To bo admissible at all, the entries should be made at or near the time of the trans- 
 action. The law fixes no precise instant. They are not to be registers of a past 
 transaction ; but memoranda of transactions as they occur. Per Duncaji, J., in Curran v. 
 
SEC. Yiii.J Mitries in Account Books. 311 
 
 Crawford, 4 gerg. & Rawle, 5 ; Cogswell v. Dolliver, 3 Mass. Eep. 217 ; Eastman v. Moul- 
 ton, 3 N. H. Rep. 156 ; Ewlng v. Sparks, 2 Halst. 59 ; Kesgler v M'Conachy, 1 Eawle, 441. 
 And where some were made at the time, and others some months after, without distin- 
 guishing which, or assigning a good reason, the whole were rejected as incompetent. 
 Vance v. Peariss, 1 Teates, 321 ; S. C, 2 Call. 217, by the title of Vance v. Pairis. The 
 party saw his lime, in general, either loaded at the luln or delivered to the vendees, but 
 not always, and trusted to his wagonera for some of his charges'^ yet, his book of charges 
 for the lime was allowed to go to the jury. Cu^rran v. Crawford, 4 Serg. & Rawle, 8. A 
 butcher's servant, carrying out meat, uniformly marked in pencil the quantity delivered, 
 which his master copied into his book on his return. The book was held receivable. 
 Ingraham v. Bockius, 9 Serg. & Rawle, 285. And see Curren v. Crawford, supra. But 
 see Smith v. Lane, 12 Serg. & Rawle, 80 ; and Kessler v. M'Conachy, infra. So, where 
 one of two butchers (partners) customarily marked the scores of meat with chalk on a 
 cart, and the other, before thp cart went out again, copied the scores into the book, it was 
 held receivable, on the oath of both partners. Smith v. Sandford, 13 Pick. 139. 
 
 It is no objection to the book though the entries be first made on a slate and then trans- 
 cribed by_ the party, if done in the ordinary course of his making such entries (Faxon v. 
 Hollos, 13 Mass. Rep. 437 ; Kessler v. M'Conachy, 1 Rawle, 441) ; though properly they 
 should be transcribed daily ; and where it was left in doubt whether a day or two after, 
 they were rejected (Ogden v. Miller's Bxr's, 1 Browne, 147) ; and they will, of course, be 
 rejected, if it do not appear that the party made the entries on the slate — but it is left to 
 
 be inferred that they were made by a servant, who could attest to them himself. 
 *381 Drummond v. Hyams, 1 Harp. 368. And see *Kessler v. M'Conachy, infra. And 
 
 where the journeymen made the entries, some of them on a slate, whence they were 
 copied by the master — some in a day or two, some in a week, some perhaps not short of two 
 weeks, without distinguishing which was longer or shorter, the book was held altogether 
 inadmissible. And much stress was laid on there being better evidence, the journeyman 
 himself , they should at least have been boKh made and transcribed at or about the time 
 the work was done ; and the party should distinguish the entries so made from those made 
 more loosely, or the whole must be rejected. Kessler v. M'Conachy, 1 Rawle, 441. A book 
 is receivable as evidence though the work be charged while in progress, and before it be 
 completed ; as where a tailor made his charges on the work being cut out and delivered 
 to his journeymen, who worked in the same house with him. Such mode of keeping 
 books as is usual and known to all tradesmen cannot safely be declared bad by the court. 
 In some trades the work is in hands for several days, and goes through more than one 
 hand ; and the entry may be made during the period of its manufacture, or at a stated 
 time when it has progressed a certain length. The court would not say a shopkeeper 
 could charge goods not yet measured or weighed off ; nor a tradesman work not yet 
 begun ; but they hesitated to say that a blacksmith who has prepared and weighed iron 
 work, and then charges before he puts it on the wood, which might take him a week, or 
 a chairmaker who makes and paints the chairs and charges them before sent to be gilt, 
 shall not read his book. Kaughley v. Brewer, 16 Serg. & Rawle, 133, 134. 
 
 4. The entry must be in the book of the party, kept by him for the purpose of his daily 
 accounts, generally, with all those persoris wlio may have dealings with him ; and must 
 be made in conformity to the prevalent manner of his keeping the book ; and in a regular 
 course with the other charges. If they stand insulated on the front leaf of the book, 
 and not falling into a regular order with the other charges, they will be rejected. Lynch 
 V. Hugo. 1 Bay, 33. So, if on a separate sheet, especially when it appears that the party 
 in fact keeps an account-book. Prince v. Smith, 4 Mass. Rep. 455. Bo of a mutilated 
 piece of paper, which appears to have been torn out of a book, in which the name of 
 neither party appears, which contains no charges against the defendant, and which is 
 unintelligible without explanation by the plaintiff. Hough v. Doyle, 4 Ra^le, 291. 
 Where six charges, amounting to six hundred and fifty dollars, were on one of the last 
 leaves of the book, separated from all the entries by intervening blank leaves, and dated 
 during the same period with thirteen other charges made in the body of the book; 
 apparently regular, the six charges were held properly to be no part of the book, and 
 inadmissible, the same as entries on a separate leaf. Per Kirkpatrick, C. J., in Wilson v. 
 Wilson, 1 Halst. 94 ; Rozell, J., contra. Charges on several disconnected pieces of paper 
 were rejected. Thompson v. McKelvey, 13 Serg. & Rawle, 136. After the defendant's 
 demand accrued against the plaintiff, the latter caused a series of charges to be continu- 
 ously written down in Ms regular book against the defendant, ranging through 1816, '17, 
 '18, '19 and '20, without a single intervening charge. The book was held clearly inadmis- 
 sible as evidence of such charges. Swing v. Sparks, 3 Halst. 59. But in Vermont, an entry 
 of a service as counselor at law on a separate slip of paper, filed according to the party's 
 usual practice, was received. Bell v. M'Lean, 3 Verm. Rep. 185. 
 
 5. To make the book admissible for any purpose, it must contain the original entries of 
 the party made by himself; and must be an account of his daily transactions. Per 
 Duncan J., in Curren v. Crawford, 4 Serg. & Rawle, 5 ; Sterritt v. Bull, 1 Binn. 237 ; Prince 
 V. Smith, 4 Mass. Eep. 455 ; Eastman v. Moulton, 3 N. H. Rep. 156 ; Swing v. Sparks, 2 
 Halst. 59. And one reason why they must not appear to be made by another is, beeausa 
 
312 Entries in Course of business. [ch. viii. 
 
 he is then prima facie a witness, and must be produced. Eastman v. Moulton, 3 N. 
 Hamp. Eep. 156. But regard is had to the party's degree of education, and senib., if he 
 cannot write so as to make entries, they may be made by another. Prince v. Smith, 4 
 Mass. Eep. 455 ; Eastman v. Moulton, 3 N. Hamp. Rep. 156. If it clearly appear that the 
 entries are not original, either upon inspection or from extrinsic testimony, tbey are to be 
 withheld as incompetent evidence. Cogswell v. DoUiver, 2 Mass. Rep. 222 ; Curren v. 
 Crawford, 4 Serg. & Rawle, 8; Prince v. Smith, 4 Mass. Rep. 455; Swing v. Sparks, 
 2 Halst. 59. 
 
 6. Being original entries, the question then arises upon the form in which they are to be 
 kept. Among the European continental nations, which have adopted the civil law as the 
 basis of their own, this proof by book account also prevails. If we may be allowed to judge 
 of its form from the French Code, and the more approved French writers on juris- 
 *382 prudence, who coriSne it to *merchants of good standing, we shall have reason to 
 believe that the avenues to abuse are partially closed by the cautious manner in which 
 accounts must be arranged and checked, in order to give them the character of competent 
 proof. Code de Com. Liv. 1, tit. 2 ; des Livres de Commerce, art. 12 ; Poth. des Obi. nos. 
 719, 720. Yet the book itself is not such evidence as will warrant a sentence in favor of 
 the party producing it. 1 Dom., p. 444, b. 3, tit. 6, § 3, art. 9. It is but semi-proof which 
 may be rendered perfect by the suppletory oath of the party. Poth. ut supra. But in 
 many of the United States, where this kind of evidence is left to be framed by citizens of 
 every occupation and every variety of language and character, and that, too, in their own 
 way, and considerable degree of safety derived from the forms of bookkeeping is the last 
 thing to be expected. Yet books are rarely rejected for a defect of form, even in those 
 states where they are not brought down to semi-proofs, and where, in the hands of 
 inexperienced tribunals, it is almost of course that, being received, they should reach the 
 eifect of prima facie evidence. Frail as such proofs must be, however, perhaps the law 
 can hardly be censured for thinking they would be but little fortified by the suppletory 
 oath of an interested and excited party. So^ong as such books are admissible, whatever 
 guards the law may throw around them by way of testing their credibility, must be little 
 more than naked theory, banded against the devices of interested trickery. Nothing, 
 perhaps, short of the ban of incompetency, would afford an adequate security against 
 partial simulation, and occasionally, in a long run of heedless security on the side of the 
 debtor, the most ruinous and oppressive interpolations, as the satirist has it, in 
 " Those unpaid bills, which time has taught to grow, 
 Faster than poplars on the banks of Po." 
 
 But, to proceed with the judicial treatment of this evidence. Being the original or 
 first entries of the party in his own hand, these books are the least suspicious when kept 
 in the form of daily entries in a single journal or day-book, of the debts and credits of 
 the different persons with whom the party deals, in the order of dates, without blanks, 
 chasms or marginal references. In France, if any of these requisites are wanting, the 
 book is not competent evidence. Code de Com. tit. 2 ; De Livres de Commerce, art. 8, 10. 
 This is the most perfect form, and one which has never been questioned in the American 
 courts, where book accounts are received in any way. But generally they do not require 
 anything like these formalities, in order to render books competent. We have seen ante, 
 in "our quotation from Judge Swift's Treatise of Evidence (pp. 81 82), what is necessary 
 to insure credibility, according to the judicial experience of Connecticut, which, if not 
 greater, has probably been recorded with more care than that of any other state. And, 
 considering the suspicious nature of this evidence, in itself, there can be no doubt that 
 the party should be put to common-law proof, should the entries come short of the char- 
 acter which Swift has demanded. At least, the entries should be, in all such cases, 
 ^strongly ^nd clearly confirmed by common-law evidence, even where the oath of i he party 
 is requirsiid. Still, however, they are competent, that is to say, they stand something 
 above zero, though they may come short of the standard of credibility. One striking 
 instance is in receiving entries kept ledgerwise ; that is to say, where the account of 
 each man dealing with the party is kept by itself, in a separate department of the book ; 
 thus affording every facility for undetected interpolation, either ante or post litem motam. 
 Yet such books are receivable. Swift's Ev. 81, 82 ; Rodman. v. Hoop's Ex'rs, 1 Call. 85 ; 
 Faxon v. Hollis, 13 Mass. Rep. 427 ; per Kirkpatrick, C. J., in Wilson v. Wilson, 1 Halst. 
 94 ; Cogswell v. Dolliver, 2 Mass. Rep. 217 ; Griff. Law Reg. U. S. ut supra, of New Jersey, 
 amte. This was denied of New Jersey, in Leveringe v. Dayton (C. C. U. S., N. J. Sittings, 
 cor. Washington, J., and Rossel, Dist. Judge, 4 Wash. C. C. Rep. 608) ; but the weight of 
 authority seems to be the other way. even in New Jersey ; and decisively so when con- 
 nected with the decisions of the neighboring states. Books thus kept were received, 
 though the entries in question were intermixed with various charges, notes, receipts and 
 memoranda relating to the party's dealings vrith others, in whatever blank spaces he 
 happened to find, without any regard to the order of dates or pages. Cogswell v. DoUiver, 
 2 Mass. 217. 
 
 But whether in a day-book or ledger form, the entries must appear to have been made 
 daily, or they cannot be admitted. Eastman v. Moulton, S N. H. Rep. 156 ; Smith v. Lane, 
 
8KC. VIII.] Entries in Account Boohs. 313 
 
 12 Serg. & Rawle, 80. If it appear, at any stage or in any way, that charges arising at 
 different dates were in fact made at the same time, the book is not evidence. Eastman 
 
 V. Moulton, 3 N. H. Rep. 156. 
 *383 *It must also be apparent that the entries were intended as book charges, in 
 account with the identical party against whom they are offered in evidence. 
 Rhoades v. Gaul, 4 Rawle, 404 ; Rogers v. Old, 5 Serg. & Rawle, 404 ; Smith v. Lane, 12 
 Id. 80. If they are kept merely as a memorandum between the party and another, they 
 are inadmissible. Smith v. Lane, 12 Serg. & Rawle, 80. Arbitrary marks fixed to the 
 entries, not intended te charge the vendee, but merely to inform the porter and prevent 
 a delivery of similar articles twice, cannot be used to aid in the evidence of delivery, 
 especially if not always made by the same person making the residue of the entry, nor 
 by the party nor his clerk. Rhoades v. Gaul, 4 Rawle, 404. So a book kept by a forge- 
 man to settle by with his customers, though it name the vendees, and sometimes the 
 price, is not evidence against the latter. Rogers v. Old, 5 Serg. & Rawle, 404. 
 
 It is not an insurmountable objection to the competency of the book, that there be 
 erasures and corrections. Its character is not thus destroyed as «, book of original 
 entries. The alteration is open to explanation ; and the objection goes to the credit only. 
 Sargeant v. Pettibone, 1 Aik. 355. But it is a serious objection against its credit ; and if 
 gross, suspicious, or unexplained, it will destroy the competency of the book. Swift's 
 Ev. 81, 83 ; Eastman v. Moulton, 3 N. H. Rep. 156. And so of any other fraudulent 
 appearances. Eastman v. Moulton, 3 N. H. Rep. 156. 
 
 Not only the day-book, but if it be posted, the ledger must be produced, that it may be 
 Been what credits there are. This was held where post.marks appeared on the day-book. 
 Prince v. Sweet, 2 Mass. Rep. 569 ; Eastman v. Moulton, 3 N. H. Rep. 156. And it is the 
 same in whatever way the fact of posting may be made to appear. Eastman v. Moulton, 
 3 N. H. Rep. 156. 
 
 The book being competent as a whole, almost any series of figures, abbreviations and 
 words, which can be explained into a signification, will do for particular charges. The 
 following is a specimen of charges for lime, allowed in Curren v. Crawford, 4 Serg. & 
 Rawle, 3 : 
 
 " 1 15 B. Marpol. 
 
 60 Themerty Coren." 
 And regard, as we have seen, is always to be had to the party's degree of education, the 
 nature of his employment, and the manner of his charges against others. Prince v. 
 Smith, 4 Mass. Rep. 455. But the charges must be specific ; that is to say, they must 
 denote the particular work or service charged, as it arises daily, and the quantity, num- 
 ber, weight, or othe* distinct designation of the materials or articles sold or furnished, 
 and attach the price or value to each item. Hughes v. Hampton, 2 Const. Rep. 745 ; 
 Lance v. M'Kenzie, 2 Bail. Rep. 449 ; Lync^'s Adm'r ads. Petrie, 1 Nott & M'Cord, 130, 
 cited 4 M'Cord, 77 ; Hagaman's case, 1 South. 370. Acpordingly, a bricklayer's charge of 
 " 190 days' work," was rqected ; it should be placed in the book daily, being entered at 
 the time as it occurs (Lynch's Adm'r ads. Petrie, 1 Nott & M'Cord, 130, and see S. C, 4 
 M'Cord, 77 cited) ; and a physician's charges " for medicine and attendance ;" and another 
 thus : " 13 dollars for medicine and attendance on one of the general's daughters in curing 
 the hooping cough" (the charges were against Gen. Wade Hampton) ; were also rejected 
 as too indefinite (Hughes v. Hampton, 2 Const. Rep. 745) ; and a" like general charge was 
 rejected in Lance v. M'Kenzie, 2 Bail. 449. But this is a matter which must reside very 
 much in the discretion of the judge, to be exercised according to the nature of the sub- 
 ject, and its susceptibility of being precisely charged. Where, within this rule, to be 
 applied on the examination of witnesses and otherwise, the charge is sufficiently specific, 
 it will be received ; and such was the course in judging of a physician's bill and admits 
 ting it, in Schmidt v. Quin (1 Rep. Const. Ct. 418) ; and rejecting it in Lance v. M'Kenzie, 
 supra. The rules of the medical society in South Carolina fix specific rates, as far as 
 practicable, to the services of the medical profession ; and physicians generally adhere to 
 them in their charges. Per Johnson, J., 2 Bail. 450. And see the evidence detailed 
 in the case. A receipt in the account-book, purporting to be signed by the vendee, is 
 not receivable in proof as an original entry. Sterritt's Ex'rs v. Bull, 1 Binn. 234. If the 
 prices be not carried out, the books are imperfect ; and, if admissible at all, prove nothing 
 as to the price, and the jury cannot guess at that ; so the charge goes virtually for 
 nothing. Hagaman's Case, 1 South. 370. 
 
 7. We have already seen that, so far from being primaiy evidence, superior in degree 
 to the mere oral testimony of disinterested witnesses, books are treated by the cases, 
 according to their true character; as evidence secondary to common-law proof. It was in 
 one case hastily holden, that the party's book must be produced like any other written 
 evidence, as standing higher upon- the scale, or that its absence must be accounted 
 *384 for, before proof by witness should be received., *Kelly v. Holdship, 1 Browne, 36. 
 But this, beside being contrary to various other cases which we have cited, supra, 
 is contrary to Wright v. Sharp, in the same book. p. 344. The book is, no doubt, essen- 
 tial where the suppletory oath is resorted to ; otherwise, where witnesses are called ; a 
 distinction which, in the haste of a trial, was overlooked in KeUy v. Holdship. Where 
 Vol. L 40 
 
314 Mifries in Course &f business. [ch. viir. 
 
 the party is sworn, tlie book must be produced, for there it is the principal evidence 
 (Nicholson v. Withers, 3 M'Cord, 438) ; and if it be lost, the party loses his oath, as we 
 saw supra, by Prince v. Smith. 4 Mass. Rep. 455. In such a case, the contents of the 
 book may be proved ; but this must be by common-law evidence, though the party made 
 the entry himself. Id. If proved by another who made the entries, the book must be in 
 court, or its absence accounted for ; and so where the entries of a third person, deceased, 
 are the subject of proof. In such case, the contents of the paper itself being in question, 
 they must be proved like those of any other paper, by itself, if it can be had. Nor vrill 
 the excuse that the party resides at a great and inconvenient distance, be received. Smith 
 V. Peay, 3 Bail. 394. The rule as to showing the contents of documents by themselves 
 only, has been applied to account-books by several cases. Keller v. Ord, 1 Dall. 310 ; 
 Herring v. Levy, 4 Mart. Lou. Kep. (N. S.) 383 ; Smith v. Peay, 3 Bail. 394 ; Nicholson v. 
 Withers, 3 M'Cord, 438. But extracts from the books of foreign merchants, verified by 
 the oaths of their clerks, were received, the court saying it would be unreasonable to 
 require the books themselves. Bell v. Keely, 3 Yeates, 355. And see Lewis's Ex'r v. 
 Bacon's Legatee, 3 Hen. & Munf. 89. Quere. See Elms v. Cheevis, 3 M'Cprd, 349, also 
 stated supra. 
 
 It is perfectly well settled, by a series of adjudged cases, that a party may, in his dis- 
 cretion, waive his books altogether, and rely upon his common-law proof, by witnesses or 
 otherwise. Levenworth v. Phelps, Kirby, 71 ; per Washington, J., in Cambioso's Ex'rs 
 V. Maflfett's Assignees, 2 Wash. C. p. Rep. 101 ; Nich«lson v. Withers, 3 M'Cord, 438 ; 
 Read v. Barlow, 1 Aik. 145, 147, 148, per Skinner, Ch, J. ; Palmer v. Green, 6 Conn. Rep. 
 14, 17 ; Bernham's Adm'r v. Adams, 5 Verm. Rep. 313 ; Whiting v. Corvrin, 5 Verm. Rep. 
 451. The party may take his account and proof from his adversary's book. But the 
 non-production of his own book would many times, and especially if called for by his 
 adversary, be a heavy circumstance against him. Swift's Ev. 82 ; Palmer v. Green, 6 
 Conn. Rep. J.4, 17. A very ordinary expedient of the common law is, to prove the entries 
 of a deceased clerk as mentioned ante, note 107. 
 
 8. Books are evidence, both of the items charged and the price or value carried out, 
 subject to inquiry on other evidence. Ducoign v. Schreppel, 1 Yeates, 347. Properly 
 attested, they are prima facie evidence of the delivery of articles of merchandise (Foster 
 V. Sinkler, 1 Bay, 45, per Pendleton, J.) ; indeed, both of sale and delivery ; and in case of 
 services, they are evidence of retainer to do the service, the doing of it, and the delivery 
 of materials in the course of the service. M'Bride v. Watts, 1 M'Cord, 384. Nor need 
 entries of charges for spirituous liquors sold in small quantities be followed with proof of 
 a license to sell. Herlock's Adm'rs v. Riser, 1 M'Cord, 481. The book is to be taken 
 together, with its charges and credits, especially where laoth are of ?he same date. Har- 
 rington V. Hall, 3 Aik. 175. 
 
 9. Semb. The party's books would be adm^sible on a collateral point in a cause, as if 
 in an action to recover money from the defendant, it should be material to determine the 
 state of his accounts with another. Mifflin v. Bingham, 1 Dall. 273, 276. But it was 
 afterwards held that; the third person being himself a witness, and his oath better evi- 
 dence than his books, he should beproduced. The case would not then come within the 
 necessity on which this kind of proof is founded. Juniata Bank of Pennsylvania v. 
 Brown, 5 Serg. & Rawle, 336. 
 
 10. We noticed, supra, the tests of credibility arising from the face of the account, and 
 from various other collateral circumstances, while speaking of the law of Connecticut. 
 Their good sense will commend them to all persons engaged in the judicial investigation 
 of accounts, which are always, though the books be received, open to objections as to 
 their credit, Irom unfair appearances or other evidence. See per Sewall, J., in Prince v. 
 Smith, 4 Mass. Rep. 455. i 
 
 (The subject may be further illustrated by some of the more recent decisions : Jones v. 
 Jones, 1 Foster (N. H.), 219 ; entries made upon loose sheets of paper are not to be pre- 
 sumed to have been made as daily minutes of the parties' business transactions, and are 
 not admissible in evidence. To render a book evidence, it must appear to have been regu- 
 larly kept in such a manner as to afford a strong presumption of its accuracy ; in other 
 words, the charges in the handwriting of the party must appear in such a state that they 
 may be presumed to have been 'his daily minutes of his transactions and business. 
 *385 Richardson v. Emery, 3 Id. 230. But if the book *accouut appears to have been 
 regularly kept, and the charges were made at or about the time the work was 
 done, or materials found, it will not be rejected merely because it is proved by the party's 
 suppletory oath that the entries were not invariably made on the same day the work was 
 done, or articles furnished. Morris v. Briggs, 8 Gushing, 843. Neither the manner nor 
 the form in which the book is kept is material, so that it appear to have been fairly and 
 honestly kept ; thus, an account for work, entered on one leaf of a book with no inter- 
 vening charges is admissible; suppoHed by the suppletory oath of the party, though the 
 entry be in pencil. Gibson v. Bailey, 13 Met. 587. 
 
 Clough V. Little, 3 Rich. 353 ; when the party offering his book in evidence is support- 
 ing it by his own oath, he may be cross-examined like any other witness ; and if on his 
 examiliation he show that the entries were made by himself from the statement of his 
 
SBC. Tin.] Entries in Account Soohs. 315 
 
 derk in regard to the sale, the evidence is insufficient. On the other hand, if the party 
 offering show that the book, or even separate sheets of paper, contain the original entries 
 of the account made by the party, and the usual additional facts, the evidence is admis- 
 sible ; and the credibility both of the book and of the party is to be weighed by the jury. 
 Taylor v. Tucker, 1 Kelly (Geo.), 331. 
 
 Where goods are sold on an order, or where they are entered in a pass-book, and deliv- 
 ered to a third person, the order or the pass-book must be produced ; in other words, the 
 books of the party are not evidence of the agency of the person to whom the delivery was 
 made. Thompson v. Porter, 5 Strobh. Eq. 58. When the defendant calls for the plaintiff's 
 books and introduces them in evidence for one purpose, as to prove the goods charged to 
 another person, the plaintiff may read from the books for another purpose. Lewin v. 
 Dille et al., 17 Mia. (2 Bennett), 64. Loose memorandums made by a party's clerk, not 
 in the course of his employment, are not evidence against his principal. Lockey v. 
 Schreiber, Id. 146. 
 
 Books of original entries are not evidence of the casual sale of an article (such as a horse) 
 not in the course of the party's business, and of which it is usual to take other pro»f or 
 evidence of sale. Shoemaker v. Kellogg, 11 Penn. State E. 310. Nor are they evidence 
 of a collateral fact. Little v. Wyatt, 14 N. Hamp. 23. 
 
 In Maine, where a party relies upon his book of original entries suppsrted by his oath, 
 only, he must swear that he made them at or about the time they purport to have been 
 made ; that they are his original entries of the transaction ; and that the articles and ser- 
 vices were respectively delivered and performed as charged. Durnel v. Pottle, 31 Maine, 
 167. An attorney may prove his. entries for services rendered in same way. Codman v. 
 Caldwell, Id. 560. 
 
 In the case of a sale, if the party shows a delivery to a third person, the book is to be 
 excluded unless there be other evidence showing the latter's authority to receive. Soper 
 V. Veazie, 32 Id. 132. The delivery must be proved. Godfrey v. Codman, supra. So, 
 nnder the book-debt law of North Carolina the party must testify to the delivery of the 
 articles sold. Adkinson v. Simmons, 11 Ired. 416. 
 
 The book offered must be one of original entries. Toomer v. Gadson, 4 Strobh. 193. 
 
 It is no objection to a book of original entries that part of them are written in pencil ; 
 so held where the party offering them was a vendor of coal, at his coal bank, and the 
 book offered in evidence was the original entries of the coal sold and delivered. Hill v. 
 Scott, 13 Penn. State R. 168. Such books are commonly used as evidence of a sale and 
 delivery of goods, but may be verified by a witness and used as memoranda to designate 
 them. Filler v. Eyre, 14 Id. 392. And they may be used to show the consideration given 
 by the indorsee of a note, the note and other items being credited in an account between 
 the parties, and the whole being verified by a clerk and shown to be a part of the res 
 gestm. Kosenberger v. Bitting, 15 Id. 278. So, in a remote transaction, the books of a 
 broker may be used to determine in what character and for whom he acted in the sale of 
 real estate. Sergeant v. Ingersoll, Id. 343. So a trustee's books may be used to show the 
 character in which he held certain real estate ; as where he held the premises by a con- 
 veyance in trust, and conveyed them to the daughter of the grantor in fraud of creditors. 
 Hollingshead v. Allen, 17 Id. 375. 
 
 Though the book offered in evidence contain entries which are not original, that does 
 not form any objection to its being received as to those entries which are original and 
 properly entered. WoUenweber v. Ketterlinus, 17 Id. 389. 
 
 Books of account are not evidence of money lent. Henshaw v. Davia, 5 Cush. 145. Nor 
 of money paid to a third person. Faunce v. Gray, 31 Pick. 243 ; hialee v. Prall, 3 Zabr. 
 N. J. 457. Nor of three months' service, entered as one item. Henshaw v. Davis, 
 supra. Nor of the making of stairs, the work being done under a special contract. 
 Earle v. Sawyer, 6 Cush. 1^. Nor of expenses incurred in search of a slave. Redden 
 V. Spruance, 4 Harring. (Del.) 317. But a book of account is evidence of meals 
 furnished to the defendant and his servants from day to day. Tremain v. Edwards, 7 
 Cush. 414. 
 
 The account-book of the payee of a note ib not evidence to prove that the note was given 
 for necessaries ; but Is compotent to show the delivery of the articles charged. Barle v. 
 Reed, 10 Met. 387. 
 
 In Arkansas, the original entries of a merchant in books kept by himself and a clerk, 
 now absent from the state, are not evidence in his favor, though he offer to verify its 
 accuracy by his oath ; entries by a clerk may be proved in this manner on showing that 
 he is dMid, but not otherwise. Burr v. Byers as Ad., 5 Eug. 898. So in Alabama, there 
 being no statute admitting books in proof of an account, the entries of a tradesman by 
 himself, stating the delivery of goods, are not evidence in his favor. Moore v. Andrews, 
 6 Porter R. 107 ; Scott v. Coxe's Adm'r, 20 Ala. (N. S.) 394. In Florida, the books of a 
 party having a clerk cannot be used as evidence of a merchant's account by proving that 
 they were correctly kept, and that part of the articles were delivered. Higgs v. Shehee, 
 4 Florida, 382. In Kentucky, books of account are, under certain circumstances, admitted 
 in evidence ; but are not admissible to prove payment of a note. 13 B. Mon. 506. 
 
 In Georgia, books of original entry kept by the party himself, are admissible in evi- 
 
316 Entry by Person Deceased. [ch. viii. 
 
 *38t) * Entry by person deceased. It will appear that in the cases before 
 
 mentioned, relative to declarations against interest, and in the cases 
 
 which have been considered in this section, that the declarations w^ere those 
 
 of persons deceased ; the necessity of proving the declarant's death will be 
 
 considered more particularly in that part of the work which treats of the 
 
 subject of primary and secondary evidence. It is also requisite, where 
 
 the declarations are in the nature of written entries, that they should be 
 
 produced from the proper custody. This circumstance, which is 
 
 *387 essential for their *authentication is particularly considered in that 
 
 part of the work which treats of written evidence. (1) 
 
 dence, if they appear on inspection to have been fairly kept,- and it be shown by the 
 party's customers that he keeps correct books ; and though there be interlineations in 
 the books made in a different ink, the circumstances may be explained, and though unex- 
 plained, should go rather to the credit than the exclusion of them. Bower v. Smith, 8 
 GkiO. 74. In 0M(^ a party is entitled to sustain his book account by his own oath ; and if 
 he omits to do so, his book cannot be received in evidence (Kughler v. Wiseman, 20 Ohio, 
 361) ; but if the party be incapable of testifying, having become insane, his guardian may 
 verify the books by his own oath. Holbrook v. Gay, 6 Cush. 615. 
 
 In New York, books of account are received with great caution ; they are allowed in 
 evidence upon preliminary proof that the books offered contain original entries, made by 
 the party himself ; that they are fairly kept ; that the party had no clerk, and had deal- 
 ings with the person charged. Larue v. Rowland, 7 Barb. 107. The fact that plaintiff 
 keeps honest books may be suflBciently prpved by one witness (Beattie v. Qua, 15 Barb. 
 133) ; and the fact of regular dealings between the parties may and must be established 
 like any other fact — one transaction is not enough. Corning v. Ashley, 4 Denio, 354. 
 The preliminary proof being given, the books are admissible from the necessity of the 
 case, to prove an account for goods sold, or services rendered ; they are not evidence of 
 cash lent. Lowe v. Payne, 4 Comst. 247. 
 
 Where the plaintiff proves his account, containing two charges for cash lent, by 
 his book, and the defendant avails himself of the credits appearing in the account in his 
 favor, he is bound to take the whole account together ; unless he disproves the items so 
 charged as cash lent. 4 Comst. 247. And if one party gives in evidence entries in some 
 of the books of account of two mercantile firms having dealings together, in respect to the 
 matter of the entries, the opposite party may give in evidence cotemporaneous entries on 
 the same subject in any of the books of either firm essential to a complete system of book- 
 keeping. Pendleton v. Weed, 17 N. ¥. 72. The party introducing or using the books in 
 evidence, thereby makes them evidence for the opposite party. Dewey v. Hotchkiss, 30 
 N. Y. 497 ; see post, p. 410. The books of a party are admissible in evidence now on the 
 same conditions as before the Code, which permits a party to testify on his own behalf. 
 Tomlinson v. Borst, 30 Barb. 43 ; so held, also, in Swain v. Cheeney, 41 N. H. 232. 
 
 (1) Note 109. — Tlipse entries in books by the party against himself belong to the class 
 of admissions (Pringle v. M'Clenachan, 1 Dall. 486), which we shall consider, post, when 
 we speak of entries in books, &c., made by the party against himself, and. how far his 
 whole entries shall be taken together. See, also, several cases, post as to what shall be 
 considered the party's..books by redeon of his being concerned in them as a member of the 
 club or partnership which keeps them, or having access to them, &c. ; and as to the effect 
 of entries in these and the like books, which are made there for or against him. The 
 instance of entries by a bankrupt being evidance, put by our author in the text, will 
 occur to the reader as an exception to the rule that n, party's declarations shall not be 
 received as evidence in favor of one claiming under him. The bankrupt not being a wit- 
 ness, his former entry, made at the time against himself, but which, by a change of 
 circumstances, turns out now to be favorable, fey sustaining a suit which may be beneficial 
 to him, is, notwithstanding, received. The reader will see a similar turn recently given to 
 entries and balances struck, by a father in favor of his son, to prove that the former was 
 indebted to the latter. These entries were against the interest of the father at the time. 
 Now a bill is filed by his creditors, accusing both father and son of combining to create 
 fictitious debts from the former to the latter, in order to withdraw funds due to creditors. 
 The books kept in common between them, ante litem motam, were received in their favor 
 to show that the debts were bona fide. Dwight v. Brown, 9 Conn. Eep. 83, 90, 91, et sea. 
 
 Having now gone through with those matters which seemed to connect themselves with 
 our author's distribution of hearsay evidence, we shall conclude this head by a brief notice 
 of some particular^, appearing to form exceptions additional to those which he has 
 mentioned. 
 
 1. It has recently been held that common r^utation is the best evidence of the state of 
 a man's property, when the question arises collaterally. On an indictment for passing 
 counterfeit bills, with a guilty knowledge of their character, the eciejiter finally becoming 
 
SEC. VIII.] Entries, Hearsay Evidence. 317 
 
 the only question, tlie prisoner's counsel proposed to repel that fact, which is so often 
 entirely inferential from circnmstances, by showing the competent state of the prisoner's 
 fortune, as an argument for the improbability that a man, so situated, would resort to the 
 practices imputed by the indictment. The prisoner had recently removed from North 
 Carolina to Georgia ; and the counsel proposed to inquire of the sheriff " whether it was 
 not generally understood and believed, by the neighbors and acquaintances of the pris- 
 oner, that he was a moneyed man, and that he carried considerable money with him on 
 his removal to Georgia." This being overruled, on objection, and the prisoner being 
 convicted, error was brought, and the judgment reversed for that reason alone. Hender- 
 son, J., who delivered the opinion of the court, said the facts offered to be shown " tended 
 to throw light upon the subject the jury were then trying, viz : the defendant's know- 
 ledge that the notes were bad. And this seemed to be admitted from the manner in 
 which the case is stated. The objection seems to be to the mode of proof, to wit, com- 
 mon reputation. I think it the best, and almost the only, proof by which such facts can 
 be established. They exist in reputation ; for, although proof may be had that a person 
 had much property in his possession, yet, when the question arises collaterally, recourse 
 must be had to common reputation as to his being the owner, and not to the title deeds, 
 and especially whether he is a moneyed man. Such a character consists of so many dis- 
 tinct facts, as how much had he — was it his — would not his necessities compel him to 
 use it. and not keep it — could he soon replace it — what were his habits, that of keeping 
 and dealing in money or realizing it — that I think it almost impossible otherwise to 
 prove it. Besides, it is of such a character that it is almost impossible for it to become 
 reputation unless the fact be so. There is, therefore, very little danger of imposition in 
 receiving it, and the prisoner certainly had a right to the benefit of it before the jury. 
 For, upon a question of sdenter, there is more probability that a vagabond, found in pos- 
 sesion of one thousand dollars in bad money, knew it to be bad, than if such a sum is 
 found in the possession of a moneyed man. In the first case, we cannot well account for 
 
 the vagabond's having so large a sum, otherwise than by its being bad, or of his 
 *888 knowledge of it, unless he shows how he got it ; whereas, in the *other case, the 
 
 reverse may happen. And if it weighed ever so little, the prisoner was entitled to 
 its weight before the jury." State v. Cochran, 2 Dev. 63. 
 
 3. It has been suggested by a learned writer, that, where a person comes forward and 
 confesses the crime of which another is accused, and surrenders himself to justice, such 
 confession would be admissible evidence in favor of the accused. 3 M'Cord's Bep. 333, 
 note. But quere. The confession merely of a third person, that he was the guilty man, 
 has been held no evidence for the accused, any more than any other hearsay. Common- 
 wealth V. Chubbock, 1 Mass. Rep. 144. And if an actual surrender should make the 
 declaration admissible, it would at once throw open the door for fraudulent testimony, 
 even in exculpation of the most atrocious criminals. The self-accuser is yet to be tried ; 
 and he may act under the full consciousness of having such clear proofs of his own inno- 
 cence, an alibi, or some other evidence, that he would be risking but little by doing the 
 whole as an act of solemn trickery in behalf of his friend. The surrender would not 
 estop him. Even should the people prosecute, convict and execute him as the sole male- 
 factor, the ■♦erdict would not conclude them, nor by any evidence whatever against the 
 first accusation. It would be res'inter alios acta. - 
 
 4. In Graham v. The Pennsylvania Insurance Company (2 Wash. C. C. Rep. 113, 134), 
 which was an action on a marine policy of insurance upon a cargo, the invoice was offered 
 in evidence by the plaintiff, but objected to. Washihgton, J., said that, " according to the 
 general rules of law in other cases, it would, by itself, be inadmissible. But in commer- 
 cial cases, it is uniformly admitted, if it carries with it the proof of its fairness. It is 
 not known to have ever before been questioned. It is prima facie evidence of value, and 
 no more." 
 
 5. At common law, the certificate of an oflBcer having the legal custody of papers, that 
 he had searched, and failed to find any paper pertaining to his files. Is mere hearsay, and 
 no evidence of its loss or absence. Bowlin v. Pollock, 7 Monroe, 26, 43, 44. But by the 
 usage in Pennsylvania, the certificate of a prothonotary, that a writ, declaration or state- 
 ment cannot be found in his office, is admissible to prove the loss. Ruggles v. Alexander, 
 1 Rawle, 233. So of an officer of the land office, that a warrant or return of survey can- 
 not be found ; or a recorder of a county, that a deed is not recorded. Per Huston, J., Id. 
 336. And in New York, " wherever any office*, to whom the legal custody of any docu- 
 ment or paper shall belong, shall certify, under his official seal, that he has made diligent 
 examination in his office for such paper, and that it cannot be found, such certificate 
 shall be presumptive evidence of the facts so certified, in all causes, matters and- proceed- 
 ings, in the same manner and with the like effect, as if such officer had personally testified 
 to the same in the court, or before the officer before whom such cause, matter or proceed- 
 ing may be pending. 3 R. S. 553, § 13. 
 
 6. General reputation has been, in two instances, received, and expressly recognized by 
 the Supreme Court of New York, as auxiliary evidence that the defendants were part- 
 ners, in order to charge them aU jointly in a suit upon a contract made by one. Whitney 
 V. Sterling, 14 John. Rep. 315 ; M'Pherson v. Rathbone, 11 Wend. 96. No objection to 
 
318 M)idence on Former Trial, [ch. viii. 
 
 *389 *SECTIO]Sr IX. 
 
 Exceptiolfis to the General Rule as to Sea/rsay, where Witnesses, since 
 Deceased, have Given Evidence on a former Trial. 
 
 It has been held, that the testimony of a deceased witness, who has heen 
 examined upon oath on the triaf of a former action, between the same 
 parties, and where the point in issue was the same as in the second 
 
 the evidence was taken in the first case ; and in the last it is quite questionable whether 
 any exception was taken which would reach the point. It does not appear to have been 
 made on argument ;. and there was enough in the case without it ; for written articles 
 were proved. In the first case the court doubted whether reputation alone would impli- 
 cate the defendants. In the last, the learned chief justice said : " It was undoubtedly 
 competent to have proved the partnership of all these defendants by general Teputation." 
 Upon such authority, this must be taken as the settled law of New York. That it con- 
 stitutes one of the most striking exceptions to the rule denying, hearsay as evidence, is, 
 however, equally obvious. No authority is cited in either case going to maintain the 
 exception. And we believe that British authority has gone no farther than to look into 
 the act of the party, and declare ithat if his conduct be such as to lead the public to a 
 belief of his being a partner, he, thus drawing credit to the firm, when he comes to be 
 sued by a creditor whom he may have led to becortje such, shall not be heard to gainsay 
 his own virtual admissions. The question turns upon his assent, which must be shown, 
 not by general repute, but by .witnesses who know the fact, or by circumstantial evidence. 
 This is the farthest that the British law has gone. Roscoe's Ev. 212. See recent cases, 
 Kirby v. Hewitt, 26 Barb. 607 ; Brahe v. Kimball, 5 Sandf. 237 ; general reputation is not 
 alone sufficient; Halliday v. McDougall, 20 Wend. 81. Smith v. Griffith, 3 Hill. 333; 
 Conklin v. Barton, 43 Barb. 435 ; Pnion Bank v. Mott, 39 Barb. 180. Nor are we aware 
 that any American authority beside New York, has ever recognized mere hearsay as ade- 
 quate proof of a partnership ; though Tilghman, C. J., said, in one case, it was corrobora- 
 tive evidence. Allen v. Rostain, 11 Serg. & Rawle, 378. This point, however, did not 
 here arise upon the bill of exceptions ; and we believe that to this day nothing to sustain 
 this evidence can be found which will amount to an express adjudication, going even 
 thus, far. We are aware of Bernard v. Torrence (5 Gill & John. 383, 405), but understand 
 that the evidence was received merely upon the point of notice to the plaintiflf ; not as 
 proving or disproving the fact of partnership. Yet the evidence is constantly received at 
 the circuits in New York ; and where would it not be under such imposing dicta ? Look- 
 ing to this matter a (priori, we find a contract of the nicest frame, which, when carefully 
 analyzed, has puzzled the closest inquiries, both of the common and civil law, in fixing 
 its character, referred for proof of its details and its legal effect, to the loosest of all testi- 
 mony : " surmises, jealousies, conjectures," excited and confirmed by interested creditors. 
 There is scarcely a question upon which common reputation is more liablento be misled 
 by appearances, or abused by sinister misrepresentation. 
 
 7. Another exception to the rule that hearsay is not evidence, has been adopted upon 
 summary inquiries into the validity of elections to the legislature, on complaint that votes 
 were obtained by bribery. The declarations of voters may be received as evidence of the 
 bribery. This is, however, only to annul votes but not to sustain a charge of bribery 
 against the candidate with the view to disqualify, or affect him, otherwise than by vacating 
 Ms election. See the cases of Milborne Port, 1 Doug. Election Cases, 67 ; of Ivelchester, 3 
 Id. 76 ; Petersfield, Id. 6 ; Worcester, Id. 129 ; and Shaftesbury, Id. 150. See post p. 
 692 — 594. 
 
 In this last case, money to the amount of several thousand pounds had been given 
 among the voters, in sums of twenty guineas a man. The persons who were intrusted 
 with the disbursement of this money, and who were chiefly the magistrates of the town, 
 fell upon a very singular and absurd contrivance, in hopes of being able to conceal the 
 channel through which it was conveyed to the electors. A person concealed under a 
 ludicrous and fantastical disguise, and called by the name of Punch, was placed in a small 
 apartment,: and through a key-hole in t^e door, delivered out to the voters parcels con- 
 taining twenty guineas ; upon which they were conducted to another apartment in the 
 same house, where they found a person called Punch's secretary, and signed notes for the 
 value ; but which were made payable to an imaginary character, to whom they had given 
 the name of Glenbucket. Two of the witnesses, called by the counsel for the petitioner, 
 swore that they had seen Punch through the hole in the door, and that they knew him to 
 be one Matthews, an alderman of Shaftesbury ; and, as the counsel for the petitioner had 
 endeavored to prove, an agent for the sitting members. 
 
 On the part of the petitioner, witnesses were called to prove declarations of voters, who, 
 at the poll, had taken the bribery oath, that they had received Punch's money. This 
 was objected to by the counsel on the other side ; but the evidence was admitted. See 3 
 
SEC. IX.] Miidence on Former Trial. 319 
 
 action, is admissible on the trial of the second action. (1) This kind of 
 *400 *evidence, though classed among the exceptions to the rule respect- 
 ing hearsay, is of a different character from any which has been 
 before mentioned ; for not only is it free from the objection of being extra- 
 judicial, or of being without oath, but the party also, who is to be affected 
 by it,' had the power of cross-examining the witness under the same circum- 
 stances as on the subsequent trial. 
 
 M'Cord, 333 ; note of the learned reporter there, to whom the editor is indebted for the 
 above remarks and references. 
 
 (1) R. V. Carpenter, 3 Show. 47; Buckworth's Case, Sir T. Raym. 170; Vin. Ab. tit. Evi- 
 dence, T, b. 88, pi. 4 ; Coker v. Farewell, 3 P. Wms. 569 ; Pike v. Grouch, 1 Lord Raym. 
 730 ; Todd v. Winchelsea, 3 C. & P. 887 ; Doe d. Lloyd v. Passingham, 3 C. & P. 440. 
 That the shorthand writer's notes of the evidence of living witnesses is not receivable, see 
 Williams v. Taylor, 3 M. & P. 350. 
 
 Note 109 a. — All the cases agree that the decease of a witness will let in testimpny 
 of what he swore to on a former trial. Glass v. Beach, 5 Verm. Rep. 173 ; Swift's 
 »390 Ev. 135 ; Jackson *^ dem. Potter v. BaUey, 3 John. R. 17 ; Miles v. O'Hara, 4 Bin. 
 108, 111 ; White v. Kibling, 11 John. R. 138 ; Beals v. Guernsey, 8 Id. 446; Jackson 
 ex dem. Gillespy v. Woolsey, 11 Id. 446 ; Wilbur v. Se'den, 6 Cowen R. 162 ; Crary v. 
 Sprague, 12 Wend. 41 ; Clark v. Vorce, 15 Wend. 193 ; S. C, 19 Id. 333 ; Sheridan 
 V. Smith, 3 Hill, 538 ; People v. Newman, 5 Hill, 295 ; Osborn v. Bell, 5 Denio, 370 ; Green v. 
 Brown, 3 Barb. 119 ; Marsh v. Jones. 21 Vt. 378 ; McAdams v. Stilwell, 13 Penn. State R. 
 90 ; Regina v. Bird, 2 Eng. Law & Bq. 429 ; Philadelphia, Wilmington & Baltimore Rail- 
 road Co. V. Howard, 18 How. U. S. 807 ; Williams v. Willard, 33 Vt. 369 ; Huff v. Bennetty 
 2 Sand. 130 ; Weeks v. Lowerre, 8 Barb. 530 ; Chambers v. Hunt, 3 New Jersey, 552 ; 
 Jones V. Wood, 16 Penn. State R. 25 ; Crawford v. Ward, 7 Geo. 445 ; Kendrick v. The 
 State, 10 Humph. 479 ; Heth v. Young, 11 B. Men. 278 ; Young v. Dearborn, 2 Poster 
 (N. H.) 372. 
 
 Note 110. — The former testimony of the deceased witness is admissible in another trial 
 of the same cause, either upon repleader, appeal or new trial. Swift's Ev. 135 ; Marsh v. 
 Jones, supra. Nor is it necessary that the former testimony should have been given on 
 the trial of a cause in the exact technical shape of an action. It is enough that the 
 point was investigated in a judicial proceeding of any kind, wherein the party to be 
 affected by such testimony had the right of cross-examination. Accordingly, this doctrine 
 was held of a witness sworn and testifying before commissioners appointed by a statute 
 to settle the title to lands (Jackson ex dem. Potter v. Bailey, 2 John. Rep. 17) ; before the 
 trustees of an absconding debtor (Cox v. Pierce's Trustees, 7 John. Rep. 398) ; before com-, 
 missioners legally appointed to examine into the affairs of an estate represented insolvent' 
 (said in Fitch v. Hyde, Kirby, 258, 359) ; before arbitrators ; Forney v. Hallagher, 11 Serg. 
 & Rawle, 303 ; Arwin's Lessee v. Bisling, 1 Yeates, 400) ; though this was denied as to a 
 former deposition before referees (Staret's Lessee v. Chambers, 3 Yeates, 233, note), on 
 what groimd it is not perceived. The doctrine was lately applied to a proceeding and 
 testimony of a deceased witness, on the caveat against the proof of a ■Wll, in the Regis- 
 ter's Court (Ottinger v. Ottinger, 17 Serg. & Rawle, 142) ; and the Superior Court of 
 Connecticut held the same of a deposition taken on the heaidng of a petition before the 
 legislature. Ray v. Bash, 1 Root, 81, 83. 
 
 What a witness swore as to a credit, on a summary application before a judge, to miti- 
 gate bail, was refused on the trial, as not within the rule ; though the testimony having 
 been given without contradiction by the party, it was held competent within the maxim 
 gui tacet consentire mdetur. Jackson v. Winchester, 4 Dall. 305 ; S. C, 3 Yeates, 529. 
 
 The doctrine has also been denied all application to a criminal cause, whether it relate 
 to felony or a mere misdemeanor. 3 Ev. Poth. 229 ; State v. Atkins, 1 Tenn. Rep., by 
 Overton, 239 ; Finn v. The Commonwealth, 5 Rand. 701, 708. Neither Mr. Evans nor the 
 judges in the first case cite any authority ; but the judges remark that such evidence 
 would violate the clause in magna charta, demanding that the accused should be con- 
 fronted with the witness. In the second case, Peake's Ev. 60, is cited, who refers to 
 Fen wick's Case. That was a proceeding in Parliament by bill of attainder, against Sir 
 John Fenwick, for high treason. Lady Fenwick had spirited away a material witness 
 who had sworn against Cook, on his trial for the same treason. It is true that Peake 
 relies on that case as proving that such evidence is inadmissible in a criminal proceeding ; 
 but he is followed by no other writer ; and the case itself carried the rule even farther 
 against criminals, than was ever done against a party in a civU cause. That case may be 
 seen to this point in 5 Harg. St. Trials, 63 et sequente. The recorder had said the deposi- 
 tion taken before the examining justice, was evidence against the prisoner, he having 
 spirited the witness away. This was treated as something extraordinary ; and said to be 
 without book ; and no lawyer would advance it who was out of his A. B. C. Upon this, 
 Mr. Sloan said he thought Lord Hale was beyond his A. B. C, especially in the Pleas of 
 
320 Miidence on former Trial. [ch. viii. 
 
 the Crown ; and he read from his book, that an ex pa/He deposition, taken under the 
 statutes of Phil. & Mar., might be used against the prisoner, when the witness was dead 
 or withdrawn (and see post, et seg., of the text). The general rales of evidence are the 
 same both in civil and criminal cases. In the latter, the law even allows greater latitude 
 than in the former, by receiving declarations in extremis. As to the constitutional diffi- 
 culty, the criminal is confronted by the witnesses in both the former and present trial ; and 
 we think Macnally tacitly admits (1 Maonally, 390), that the rule under consideration 
 applies as well to a criminal as a civil cause. On trial of an indictment for robbing 
 *391 the mail (a capital oifense), before Washington, J., the objection was not *thought 
 of. United States v. Wood, 3 Wash. C. C. Rep. 440. See also Rex v. Barber, 1 
 Root, 76; where what a witness swore before the grand jury, was received against the 
 prisoner without objection. In Crary v. Sprague (12 Wend. 45), Nelson, J., expresses 
 the opinion that such testimony is receivable in a criminal case. 
 
 It was very proper^ held that such evidence could not be received of what a witness 
 swore on examination before the board of property (or, in the New York phrase, the com- 
 missioners of the land office). The reason given is, that the board could not enforce the 
 attendance of witnesses, punish for contempt, nor even administer an oath. They are, 
 therefore, no court, in any sense of the word Montgomery's Lessee v. Snodgrass, 2 Yeates, 
 330 : De Haas' Lessee v. Galbreath, Id. 315 ; Sherman's Lessee v. Dill, 4 Id. 295. See also, 
 Parker's Lessee v. Gonsalus, 1 Serg. & Rawle, 526, 537, 538, ai^ Poster v. Shaw, 7 Serg. & 
 Rawle, 156, 159, 160, 161. CTestimony given before arbitrators duly empowered, by a wit- 
 ness since deceased, may be proved in a suit between same parties litigating same subject 
 matter. McAdams v. Stilwell, 13 Penn. State R. 90. So may testimony taken before a 
 committing magistrate, in a, criminal case. Kendrick v. The State, 10 Hump. 479. So 
 may depositions taken on a, former trial, or in another action to which the parties to 
 the action on trial were also parties. Philadelphia, &c., Co. v. Howard, 13 How. U. S. 307 ; 
 Crawford v. Ward, 4 Geo. 445 ; Whitcomb v. Steward, 1 Carter, (Ind.) 208 ; Samuel v. 
 Withers, 16 Mis. (1 Bennett), 533. 
 
 Note 111. — The cases all agree that the parties must be the same. See for the general 
 doctrine, Arderry v. Commonwealth, 8 J. .T. Marsh. 183 ; Jackson ex. dem. Potter v. Bai- 
 ley, 3 John. Rep. 17 ; Powell v. Waters, 17 John. Rep. 176 ; Lightner v. Wike, 4 Serg. & 
 Rawle, 205 ; and Bowie v. O'Neale, 5 Harr. & John, 226, 231 ; and indeed almost every 
 case which occurs on this branch of evidence. See also post, of depositions. 
 
 Where the testimony is. offijred as being between the original parties, they must be 
 identically the same with those on the first trial. Though they be the same with the 
 addition of one defendant on the second trial, the testimony is inadmissible. Boardman 
 y. Reed's Lessees, 6 Pet. Rep. 328. The same thing was said where plaintifis were added 
 in the second suit, though the testimony was received as hearsay in respect to pedigree. 
 Boudereau v. Montgomery, 4 Wash. C. C. Kep. 186, 187, 188. The doctrine of these cases 
 is very strict ; for, in both the testimony offered was to prove what a witness swore against 
 parties, all of whom were before the court on the former occasion, with every chance of 
 cross-examination. The objection lay on the single ground, as was agreed, that the par- 
 ties oflering the testimony, were the only persons who had multiplied. The point of 
 inquiry, in both the former and present suits, was exactly the same ; and the additional 
 parties, who alone^could oppose on substantial grounds, were willing to waive the objec- 
 tion to their want of opportunity for cross-examination in the former suits. Qwilibet potest 
 renunciare legipro se introducto. Had the objection emanated from a new party, it would 
 have been another matter. These learned courts have tied up the receipt of this kind of 
 testimony to a greater strictness than appears to be required, even in respect to verdicts or 
 judgments. Lawrence v. Hunt, 10 Wend. 80. (See Sweet v. Tuttle, 14 N Y. 465 ; and 
 Campbell v. Consalus, 35 N. Y. 613, 617.) Where the addition or subtraction of par- 
 ties changes the point or subject matter in controversy, as is often the case, the objection 
 comes under a distinct category. An ejectment for land was brought by G.'s heirs against 
 S., and depositions were taken by S., when the suit came to an end by his death. His 
 children then brought a new action for the same and other land, against G.'s heirs and the 
 children of one J., as joint defendants. S.'s depositions were rejected as evidence in 
 the second action, 1. Because neither J. nor his children were parties to the first suit ; 
 2. The lands in controversy were not identical ; and 3. All the land now in question was 
 never claimed by G. or his heirs, but only a part, the residue being claimed by J. and his 
 children. Walker v. Walker, 16 Serg. & Kawle, 379, 380. 
 
 It is not necessary that the now parties should be literally or nominally the same. If 
 the former cause were one in which they had notice, and might come in and cross-exam- 
 ine, the identity is complete. In assumpsit by Ritchie & Co. agt. Lyne for goods, money, 
 &c., the defendant offijred depositions taken in a former cause between himself, plaintiff, 
 and one Crawford, the factor of the now plaintiffs, involving the same question in respect 
 to the same subject, as the present suit. The first cause had abated by Crawford's death. 
 The depositions were received ; for the two were in fact cross suits between the same par- 
 ties in interest. The factor had due notice of taking the depositions, and might have 
 cross-examined ; and he represented his principals. Ritchie v. Lyne, 1 Call, 489. 
 *893 Again : a caveat was entered against the proof of a will in the Register's *Coutt, by 
 
SEC. IX.] between same Parties and on same Issue. 321 
 
 p., a legatee. : ' A deposition was thereupon taken in that court, to be read on an 
 issue of d&mcmt vd non. The will was admitted to probate ; and now another legatee 
 appealed. On hearing the appeal, the deposition tafcen on the caveat was received-as evi- 
 dence against the appellant, and held wefl — that all the legatees were virtually parties to 
 the proceeding on the caveat, ajid would have been concluded if there had been no appeal; 
 By appealing, too, tbe, appellant had acknowledged himself to be a party. Ottinger v. 
 Ottinger, 17 Serg. & Eawle, 143. The former trial was in Wilbur & Doremus agt. Selden, 
 Bichards & Ogden. The new trial was in Wilbur, survivor of Doremus, agt. Selden, im- 
 pleaded with Richards, survivors of Ogden, Held substantially the same parties. Wilbur 
 V. Selden, 6 Cowen's Rep. 162, 164. 
 
 This sort of testimony is admissible not only against the party in the former cause, but 
 against those who are privy to him, in estate, in blood, or in law ; and especially where 
 they claiin under him by title derived since the former, examination. Said or admitted 
 in Jackson ex dem. Bates v. Lawson, and Jackson ex dem. Barton v. Crissey, infra. 
 
 A. devises a farm to his wife, to hold during her widowhood, remainder to his children. 
 B., claiming under a deed of the land from A., brings ejectment against the widow and 
 another, in which he recovers, on proof of the existence and contents of the deed from 
 A., which was lost or otherwise could not be produced. B. goes into possession under his 
 recovery. After the death of the widow, C, claiming as the grantee of some of A.'s 
 devisees in remainder, brings ejectment against B. ; and, on the trial, B. offers evidence 
 of what had been sworn to on the trial of the former suit by a witness since deceased, 
 ■wrhose testimony went to establish the existence of the deed from A. to B. Held, that the 
 evidence was admissible; the widow and the reinaindermen from whom C. derived his 
 title, and who all claimed, under the will of A., being privies in estate. Jackson ex dem. 
 Bates V. Lawson, 15 John, Rep. 539. And see per Washington, J., in Boudereau v. Mont- 
 gomery, 4 Wash. C. C. Rep. 188, S. P. But this was denied as to the reversioner, of a 
 deposition taken in a suit where the tenant for life was a party. Rowe v. Smith, 1 Call, 
 487. Depositions taken in a suit against one of two administrators, may be read in a 
 subsequent suit against 'both., for they are privies in law ; one represents both. Per 
 Washington, J., in Boudereau v. Montgomery, 4 Wash. C. C. Rep. 186, 188. 
 I But where two persons now claimed separate parcels of land, both of which were once 
 owned by a person from wliom the two separately derived title, what a deceased witness 
 once swore in a separate, ejectment against , one, is not therefore evidence against the 
 other ; for there is no privity of estatej between them in respect to such evidence. Jack- 
 son ex dem. Barton v. Crissey, 3 Wend. 251. And the testimony of a deceased witness, 
 given on the trial of an action brought by one person claiming a separate interest; in order 
 to contest a will, is not receivable; though to the same point, in an action brought by 
 another against a different defendant, also to invalidate the same will. M'CuUy v. Barr, 
 17 Serg. &:Rawle, 445, 431. See Walker v. Walker, supra, and Pegram v. Isabell, 2 Hen. 
 & Munf. 193. 
 
 The defendant in ej ectment having some years before obtained a verdict for the premises 
 In question, the present lessor of the plaintiff, though neither party nor privy to the former 
 ^tion, went ijito evidence of what passed at the former trial, to show that the verdict 
 was an improper one. After this, the now defendant was allowed to show what deceased 
 witness swore on that trial, with a view to establish the correctness of that verdict. Doe 
 ex dem. Lloyd v. Passingham, 3 Carr. & Payne, 440. But que/re. It does not follow that, 
 because one party has.given irrelevant testimony, the others may reply to it. 
 
 (The parties to the action on trial need not be identical with those in the former action, 
 in order to let in the evidence of a witness sworn in the former, and since deceased ; it is 
 enough, if the parties to the present action were also parties to that. Philadelphia, Wil- 
 mington and Baltimore R. R. Co. v. Howard, 13 B[ow. U. S. 307. It is suflBcient, if the 
 plaintiff in, the action on trial is the administrator of a former plaintiff in a suit involving 
 the same interests (Osborn v. BUI, 5 Denio, 370; Clealand v. Huey, 18 Ala. (N. S.) 343; 
 Long V. Davis, Id. 801) ; though the general rule is, that the parties must be the same, 
 Utigating substantially same issues (Crawford v. Ward, 7 Geo. 445 ; Bishop v. Tucker, 4 
 Rich. 178; Orr v. Hadley, 36 N. H. 575); the testimony is admissible if the party against 
 whom it is offered or under whom they claim was a party to the former suit (Wade v, 
 King, 19 lU. 301) ; or if the real parties be the same (Dean v. Dazey, 5 Harring (Del.) 440) ; 
 and the record of the former suit must be produced as a preliminary to the examination. 
 Heth V. Young, 11 B. Mon. 278 ; Chambers v. Hunt, 2 New Jer. 532.) 
 
 Note 113. — ^The point in issue to be the same. Admitted, Jackson ex dem. Bates v, 
 Lawson, 15 John. Rep. 539 ; recognized, .Wilbur v. Selden, 6 Cowen's Rep. 163, 164. 
 *393 See, also Walker *y. Walker, stated amie. . Almost every case upon this branch of 
 evidence agrees that the point of the two issues must be the same. 
 
 It is proper to observe also that, so far as identity of parties and point or subject matter 
 are concerned, the eyidence derivable from former vericts, judgments, &o., and of depo- 
 sitions in a former cause, are considered as resting on the same principle with the former 
 testimony of a deceased witness. And the cases on one head are, as will be seen by the 
 reports, often adverted to by jurists as reflecting light on the others. See those titlespogj, 
 and see especially Bull. N. P. 243. 
 
 Vol. t. 41 
 
322 Miidence on Former Trial [ch. vni. 
 
 (That the point in issue must be the same, see Osbom v. Bill, aupra ; McAdams v. 9til- 
 •well, 13 Penn. Stat. B. 90 ; 13 How. XT. S. 307 ; Heth v. Young, 11 B. Men. 278. Though 
 the issue need not be precisely the same in both suits, the testimony must relate to the 
 same subject matter, must bear directly on the subject of dispute. Crawford, Governor 
 ■ V. Ward, 7 Geo. 445 ; Jones v. Wood, 16 Penn. Stat. B. 35 ; Davis v. The State, 17 Ala. 
 (N. S.) 354 ; Long v. Davie, 18 Id. 801 ; Warmley v. The Commonwealth, 10 Gratt. (Va.) 
 658.) 
 
 Note 113. — ^The Supreme Court of New York have recently decided that the defendant's 
 own witness on a former trial having died, the plaintiff on a second trial of the same 
 cause, could not use his former testimony, because the vritness was interested to testify in 
 his favor. The defendant was allowed oh the last trial to object to the incompetency of 
 the witness, the same as if he had been now primarily introduced by the plaintiff; and 
 the reason given for the decision is, that he would not, on such primary offer and objec- 
 tion, be now receivable. Crary v. Sprague, 13 Wend. 41. 
 
 This is the only case, we believe, which treats this kind of testimony as primary in any 
 point of view. It is introduced in the same cause, or comes in from another between the 
 same parties on the same point, as secondary evidence, upon the ground that the witness 
 is dead or (as we shall see) becomes insane, or has been kept out of the way by the party 
 against whom his former testimony operated ; or, as many cases have it,- simply where 
 the vritness is absent beyond the jiirisdiction of the court. Per Tilghman,C. J., 4 Serg. & 
 Eawle, 319. The primary testimony being competent at the time, it follows in all other 
 cases that upon its loss, the secondary is receivable if the loss b6 not attributable to the 
 willful fault of the party who proposes to ^ve the evidence. Several cases have held, 
 that if the party do not object at the time of the original examination of the witness, by 
 which this kind of secondary evidence is created, he cannot do it afterwards, when it 
 comes to be offered. Answers in a chancery cause to leading interrogatories, were read 
 in a suit at law between privies (the witnesses being dead), though the objection was 
 raised at law. The court Say, the objection to the interrogatories not having been made 
 in the former cause shall not be received now. Williams v. Williams, 4 Maul. & Selw. 
 497. In another case, the plaintiff examined an interested witness de bene esse, whom the 
 defendant cross-examined without objection. On the trial (the witness being absent) 
 the court refused to hear the objection, and received the dSt)osition. Ogle v. Peleskie, 
 Holt's N. P. Gas. 483. Yet, had the witnesses been alive and primarily offered, the objec- 
 tions would have been good in both the above cases. The party not objected to, and a 
 fortiori introducing the witness himself, is the same as if the objection never had exis- 
 tence. In the latter case, he creates the secondary evidence by his own hand, in despite 
 of his adversary, deprives him of all means of restoring competency to and aVailing hitii- 
 self of the evidence in a primary shape ; and then objects that he shall not use the rem- 
 nant thus left to him. The same principle' would apply, had the party sent his witness 
 away, on finding him unfavorable. 
 
 In a word, the decision of Crary v. Sprague seems to be a departure from the analogy 
 of many principles and adjudged cases, which it is presumed, however, the court do not 
 mean to shake. (And the decision has not been followed in similar cases (Thomas v. 
 Kinsley, 8 Geo. 481 ; Jones v. Wood, 16 Penn. State, 35); where' the testimony was taken 
 on commission, notice of its intended use should be given. Whitcomb v. Stewart, 1 Car- 
 ter (Ind.), 208 ; Samuel v. Withers, 16 Mis. (1 Bennett), 633.) 
 
 Note 114. — The circumstance usually mentioned in the cases as depriving the party of 
 his witness in person, and letting in the testimony which he gave on the former trial, is his 
 death. Up to 1836, the New York cases had allowed no other excuse. Jackson ex dem. 
 Potter V. Bailey, 3 John. Bep. 17 ; Beals v. Guernsey, 8 John. Eep. 446 ; White v. Kibling, 
 11 John. Bep. 128 ; Jackson ex dem. Gillespy v. Woolsey, Id. 446. In Powell v. 
 *394 Waters (17 John. Bep. 176, 179), *Spencer, Ch. J., incidentally mentions death as 
 an essential prerequisite ; and finally, in Wilbur v. Selden (6 Cowen's Eep, 163, A. 
 
 D. 1836), the court, on solemn argument, and upon full consideration of the authorities, 
 virtually re-asserted the dictum in Powell v. Waters, and refused the excuse of absence 
 beyond the court. In a still later case (Crary v. Sprague, 13 Wend. 41, 45), they manifest 
 a strong inclination to adhere to their former strictness, although they admit " it is obvi- 
 ous there can scarcely be a shade of difference between death and absence either in prin- 
 ciple or hardship." The same prerequisite is essential in Indiana. Hobson v. Doe ex dem. 
 Harijer, 2 Blackf Eep. 308. 
 
 (The later decisions incline to the same strictness, including the testimony unless it be 
 shown that the witness ie dead or incompetent to testify. Brogy v. The Commonwealth, 
 10 Gratt. (Va.) 722 ; Bishop v. Tucker, 4 Eich. 178 ; Weeks v. Lowerre, 8 Barb. 530. In 
 those cases the testimony was not allowed, though the witness was absent fh)m the state 
 at the time of the second trial. Contra, Long v. Davis, 18 Ala. (N. S.) 801.) 
 
 As far as the courts in Massachusetts have spoken to the question, they have manifested 
 an inclination to the same strictness (Per Parker, C. J., in Le Baron v. Crombie, 14 Mass. 
 
 E. 234, 236), though it will be seen by the text of our author that the learned chief jus- 
 tice errs in that case in supposing that the English courts do not admit the loss of the 
 witness from any other cause as an excuse. Id. 386. He is more accurate In saying (Id.) 
 
SEC. IX.] "Whm Admissible and Mow Proved. 323 
 
 that a supervening interest in the witness will not, in Bngland, be received as an excuse 
 (Chess V, Chess, 17 S. & R. 409, S. P.), though even this is repudiated by the Court of 
 Chancery (see jxwt, of the. text), and in the chief justice's own state and in his own court 
 it was repudiated in a former case. Gold v. Eddy, 1 Mass. R. 1, 4. The point directly 
 decided in Le Baron v. Crombie, was, that incompetency arising from conviction of an 
 infamous crime should not avail. The courts also in Virginia seem inclined to deny the 
 excuse of absence beyond the jurisdiction of the coiintry. Finn v. The Commonwealth. 
 
 5 Rand, 701, 708. 
 
 Other courts allow a much greater latitude of excuse, letting in not only the death of 
 the witness, in which all the cases agree, but any other ground by which the party is 
 permanently deprived of the primary testimony of the former witness. We have seen 
 by the text, th?.t if the witness have been regularly subpoenaed^ and there is slight rea- 
 son for believing that he is kept away by the adverse party, this is one excuse. Bex v. 
 Barber, 1 Root, 76, and per Cheves, J., in Drayton v. Wells, 1 Nott & M'Cord, 411, S. P. 
 An eminent jurist, in England, thinks that residing beyond the jurisdiction of the court, 
 is another. 2 Ev. Poth. 329 ; said also in Drayton v. Wells, 1 Nott & M'Cord, 409, 411. 
 And this was directly adjudged in Pennsylvania, where the witness had gone several 
 years before to the state of Ohio. Carpenter v. ftroff, 5 Serg. & Rawle, 162, 165 ; Magill 
 V. Kauffinan, 4 Id. 317, 319, 320, cited 5 Id. 165. Magill v. Kauffinan was the ordinary 
 case of a witness examined vkia voce, and Carpenter v, Groff, of a deposition taken in 
 another cause. The learned court, however, place each on the same footing as secondary 
 evidence, and receivable upon the same foundation as secondary evidence in any other 
 case. Insanity is another excuse. A person insane is to be considered in the same state, 
 for this purpose, as if he were dead; Per Lord Kenyon, Ch. J., in Rex v. Eriswell, 3 T. 
 R. 707, 733, ; per Cheves, J., in Drayton v. Wells, 1 Nott & M'Cord, 409, 411. If the wit- 
 ness has become interested by being a party to the present euit, such disability to testify 
 has the same eflfect as if he were dead, and his deposition on the former trial may be used 
 (Gold V. Eddy, 1 Mass. Rep. 1, 4) ; though the mere circumstance of liis becoming inter- 
 ested for the party, as by giving a bond of security in the cause, but still being within 
 reach of process, would not have that effect. Chess v. Chess, 17 Serg. & Rawle, 403, 413. 
 The court consider this as the settled doctrine in England, as to the courts of law ; and 
 it is so. Post, of the text. A strong additional reason is, that the witness, if produced, 
 might, if objected to, be rendered competent by an indemnity, and ordinarily in a variety 
 of other ways. Beside, it was the party's own fault in this case, and all the authorities 
 agree tl^at one cannot 'Willfully and purposely create the ground for secondary evidence. 
 Irwin V. Eeed, 4 Yeates, 512, S. P. Yet, in another case, the Supreme Court of Pennsyl- 
 vania had allowed, the handwriting of a witness to be proved, because he had become 
 interested, after his attestation. Hamilton v. Marsden, 6 Binn. 45. .» The strict principle 
 of analogy would seem to warrant the secondary evidence proposed in Chess v. Chess, 
 though the court thought otherwise. 17 Serg. & Rawle, 413. 
 
 The courts of Louisiana Iteve been quite latitudinary in the ground . of excuse. In 
 
 allowing the temporary sickness of a witness, they have not gone beyond the rea- 
 *395 son of receiving a 'deposition de bene esse; and are easily vindicated upon principle. 
 
 The witness had been examined in open court, and notes of his testimony carefully 
 taken. As the court remark, '.' to have examined him again, laboring undfir disease, would 
 have afforded no better evidence, perhaps not so clear, as that which had been obtained 
 from him on the former trial.!' Miller v. Russell, 7 Mart. Rep. (N. S.) 366, 268, citing 
 8 Stark. Ev. 261. But when they come to receive the former viva voce testimony of a 
 deputy sheriff who had been subpoenaed, because absentjpn official duty, we search in vain 
 for any principle or analogy in the learned writer whom they cite (2 Stark. Ev. 262), to 
 justify such extreme liberality. Noble v. Martin, 7 Mart. Rep. (N. S.) 282. Such testi- 
 mony has been often repudiated, where the absent witness was alive and well, and within 
 reach of process, or rather where the contrary did not appear (Baylor v. Smithers, 1 Mon- 
 roe, 6, 7 ; Mendum v. Commonwealth, 6 Rand, 704 ; Richardson v. Stewart's Lessee, 3 Serg. 
 
 6 Rawle, 84 ; Powell v. Waters, 17 John. Rep. 176, 179 ; Arderry v. Commonwealth, 3 J. 
 J. Marsh. 183, 185) ; and especially if the witness be present, and capable of being sworn 
 (State V. M'Leod, 1 Hawks, 344), even though he may now have forgotten the facts which 
 he formerly swore to. Drayton v. Wells, 1 Nott & M'Cord, 409. 
 
 In reviewing the above authorities, it is obvious that those which have come nearest to 
 the liberal principle on which secondary evidence is generally received, are less anoma- 
 lous, and therefore more scientific than the narrower decisions. We were struck, on 
 reading the two cases of Magill v. Kauffman, and - Wilbur v. Selden (supra), with the 
 different influence which the same analogy exerts upon the minds of two learned men. 
 In both they were called to look at the settled doctrine that a subscribing witness being 
 permanently absent from the staie, lets in the proof of his handwriting ; and thence to 
 mfer that similar absence should furnishi similar grounds for the secondary evidence in 
 question. TUghman, C. J., yields at once to the force of such an analogy, one which the 
 New York court admit in 1834 (13 Wend. 45), is scarcely a shade difference from the case of 
 death. Savage, C. J., though he concedes the same analogy as to the ground of excuse, denies 
 it in regard to the degree or strength of the secondary testimony which follows. He con- 
 
324 Mjidence on Former Trial, [ch. tiii. 
 
 aiders an unsworn attestation proved by opinion of handtrating, and which might have 
 heen surreptitiously affixed by the witness after the instrument was executed, as safer 
 than proof of testimony given in public, the only error in respect to which would be a 
 possible misrecollection ; and this, too, much more easy of correction than details of con- 
 versation and hearsay, which are every day received without hesitation. Is it too much 
 to suppose that a simulated attestation might be and is much oftener palmed off upon a 
 jury, than a deceptive history of what a witness had sworn before a crowded court room ? 
 Weadmitthat this jealousy of Chief Justice Savage is not singular. It began with Livings- 
 ton, J., in Jackson ex dem. Potter v. Bailey (3 John. Rep. 31). With him, neither memory 
 nor notes can give the former testimony as it should be ; nothing short of a written deposi- 
 tion. It comes out again in Powell v. Waters, where death alone is to warrant such testimony. 
 And see per Cheves, J., 1 Nott & M'Cord, 411. Then, after taklng^ts turn in Wilbur and 
 Selden, we are finally told by Nelson, J. (13 Wend. 45, citing Livingston, J.), that this tes- 
 timony is to be confined to an impracticable strictness, from its great danger of abuse. 
 All analogy and principle are to be out down, through fear that a sworn relation in pres- 
 ence of the parties, their counsel and the court who take notes, the jury and an assembled 
 multitude who hear, should be perverted beyond the possibility of correction. We have 
 only to say, that if this be so, the faculties of hearing, attention and recollection, in 
 respect to all other conversation, should be stricken out from among the instruments of 
 judicial investigation. 
 
 Note 115. As to the person by whom the former viva wee testimony may be proved, 
 the American cases agree with the English that this may be done by any one who heard 
 the testimony, the judge, counsel, jury or bystander, provided he will, on his oath, under' 
 take to repeat it in such detail as the practice of the courts may require. Miles v. O'Hara, 
 4 Binn. 108 ; Pegram v. Isabell, 3 Hen. & Munf. 193 ; United States v. Wood, 3 Wash. C. 
 C. Rep, 440 ; Lightner v. Wike, 4 Serg. & Rawle, 303 ; Foster v. Shaw, 7 Serg. & Rawle, 
 156 ; Caton v. Lenox, 5 Rand. 36 ; Cornell v. Green, 10 Serg. & Rawle, 16 ; Wolf v. 
 Wyeth, 11 Serg. & Rawle, 149 ; Ottinger v, Ottinger, 17 Serg. & Rawle, 143 ; Chess v. 
 Chess, 17 Serg. & Rawle, 409. And see three cases infra, cited from 8 John. Rep. 446 ; 
 3 Id. 17 ; and 11 Id. 138. 
 
 The copy of a judge's notes, or the notes themsaives, are not, per se, evidence. To 
 make them of any use, he must resort to them^merely as a memorandum to refresh 
 *396 his memory, the same as *any other witness. Held, in a case where Judge Yeates's 
 notes were offered. Miles v. O'Hara (4 Binn. 108), and per Tilghman, C. J. ; " It 
 is no part of his oflicial duty to take notes of the evidence. It is not usual to take down 
 everything that a witness says. In general, the judge takes what he thinks to be 
 material ; he condenses it, and puts it in his own language. In doing this, he may hap- 
 pen to omit things that are very material. If Judge Yeates had appeared as a witness, 
 vpith his notes in his hands, he could have derived no privilege from his official station ; 
 but, if required, must have sworn that he took those notes at the trial, and that they 
 contained, to the best of his knowledge and belief, the^true substance of what was 
 sworn." &c. Id. 110. And per Yeates, J. ; " If a bystander on the trial, who heard the 
 testimony given ten years before, would undertake to state upon oath the testimony that 
 the witness had given, he clearly might be received for this purpose ; but it must have 
 been under the Sanction of an oath or affirmation. His certificate could not be received ; 
 and the certificate of a judge or juror stands on no different foundation. There are 
 grades of credibility; but none of competency. The notes of a judge are no part of the 
 record ; but are his mere private memoranda to assist his recollection. It is sufficient for 
 the judge's purpose, if he commits to paper every material fact stated by the witness 
 which can throw light on the cause." Id. Ill, 113. 
 
 And though the judge may have died, his notes are not therefore evidence for any pur- 
 pose, whether in chief, or to support or discredit a witness. But per Duncan, J.: " I do 
 not give any opinion how far a case of necessity might justify, in a civil action, the admis- 
 sion of a deceased judge's notes ; as a long acquiescence in a former verdict, the death of 
 a jury, a sedulous inquiry without effect, to procure living testimony." Foster v. Shaw, 7 
 Serg. & Rawle, 156, 163, 163. Nor can the judge's statement of the facts, on granting a 
 new trial, be read to show the testimony of the witness on the first. Drayton v. Wells, 1 
 Nott & M'Cord, 409. 
 
 How far the memory must be connected with the notes, see post, notes, several Pennsyl- 
 vania cases in those notes. 
 
 Though the deceased witness refreshed his memory from a day-book, as to time, that 
 book need not be produced on the second trial. You want the witness's former testimony ; 
 not the ground of it, nor the manner in which his memory may have been refreshed or 
 aided. Cox v. Norton, 1 Pennsylvania Rep. 413, 414, 415. 
 
 It would, at this day, be disrespectful toward very able judges, to repeat the sarcastic 
 commentary of our author upon what some have considered Lord Kenyon's impracticable 
 requisition of the witness's very words. Any j udge who ever hold a circuit, nay, the humb- 
 lest smatterer in mental philosophy, must agree with Mr. Phillipps that, if taken strictly, 
 it amounts to a total interdict of what, in the present frame of our judicial system, is by 
 no means an unimportant or unusual branch of secondary evidence. 
 
SBC. IX.] JSow Proved in tfie Present. 325 
 
 _ In some of our courts, hqwever, the interdict has gone forth. At the New York city 
 circuit, Mr. Sedgwick, counsel in the former cause, was sworn to prove the mva wee testi- 
 mony of one Scott, who was sworn in that cause, but was now absent in the State of 
 Pennsylvania. Mr. S. could not state with precision what Scott swore to, and could not 
 recollect the phraseology of the witness. His testimony was therefore objected to; but 
 the judge allowed him to state his recollection of the substance of what Scott swore to ; 
 and he produced his notes of Scott's testimony, but did not pretend that they contained 
 Scott's exact words or phraseology. The Supreme Court held, in the first place, that 
 Scott's being alive was a decisive objection to the evidence. They then observe, " There 
 is yet another difficulty. Mr. Sedgwick could not state tlie words, but only the substance of 
 his testimony." The chief justice then cites the rule of Lord Kenyon with approbation, 
 that words and not the effect, is to be given ; and then relies on Chief Justice 'Tilghman, 
 in Lightner v. Wike, as showing satisfactorily the reason of the rule, and the objection 
 to receiving the notes of counsel ; and he finally concludes that the testimony of Mr. 
 Sedgwick was inadmissible, because he could not give the words. Wilbur v. Selden, 5 
 Cowen's Rep. 162, 165. This was in 1826. In 1834, we are told by the same court that 
 eminent judges have cast a doubt over the soundness of the rule which receives such tes- 
 timony at all. Lord Kenyon is mentioned with apparent approbation, too, as confining 
 the operation of the rule to an almost impracticable strictness (12 Wend. 45), indeed, it 
 should have been said entirely impracticable, if he is to be understood according to the 
 commentary of Wilbur v. Selden. The rule does in truth seem to be pretty much gone 
 in New York. See furtlier to that point, ante, note 114. Hardly any one can present a 
 
 more perfect history of viva voce testimony than was offered by Mr. Sedgwick. 
 *397 *Such testimony had formerly been given by Mr. Pisk, counsel, from his notes, in 
 
 Jackson ex dem. GiUespy v. Woolsey (8 John. Rep. 446) ; by a commissioner, of 
 what a witness swore before the board for settling the Onondaga titles (Jackson ex dem. 
 Potter V. Bailey, 2 John. Eep. 17) ; and by a by-stander, in White v. Kibling (11 John. 
 Rep. 128). These passed, however, without objection as to details. When Lord Kenyon's 
 rule in its stricter sense comes into action, the most experienced stenographer cannot sat- 
 isfy it. On a second trial of the prisoner for robbing the mail, Mr. Bache, who was 
 engaged in reporting, and who published the former -trial, was called to prove what Hare, 
 now dead, swore on that trial. The court said the evidence was admissible, provided the 
 witness could repeat the testimony which Hare gave, and not merely what he conceived 
 to be the substance and effect of it, of which the jury alone were to judge. He may"^ 
 refresh his memory from notes which he took of the evidence at the trial, or from a news- 
 paper printed by himself containing the evidence of Hare, as taken down by the witness. 
 But he must be sure of the accuracy of the statement, from his own recollection jajujjujt. 
 merely from a confidence in the accuracy of the statement to which he refers. The wit- 
 ness acknowledged he could not say that he recollected the words of Hare ; though he 
 felt thejnost entire confidence that Jlb had taken them down aaJhe witness uttsted thejn,^ 
 andTEat they were truly copied into the paper publisEe3^ under his own inspection. TCte 
 court refused tqsijffer_liini to be examined. United States v. Wood, 3 Wash. C. C. 
 Rep. 440. -—-*- -^ ► — — ^ ^ -^ . 
 
 Lord Kenyon's rule has keen imderstood very differently by his most learned commen- 
 tators. Mr. Starkie, understanding the very words to be required, adds, " But quere, 
 whether so great exactness is necessary; even an indictment for perjury sets out the sub- 
 stance only." 2 Stark. Ev. 380, note n. Our author, it will be seen, thinks the words of 
 the rule susceptible of such a construction as shall let in the substance, and requiring 
 certain of the exact words only, as in stating a conversation, where they are requisite to 
 a safe understanding of its substance. In Pegram v. Isabell (2 Hen. & Munf. 193), the sub- 
 stance of a deceased witness's testimony was proved, and received without objection ; and 
 in a subsequent Virginia case, this is shown not to be a departure from Lord Kenyon's 
 meaning. The last case was as follows : A new trial being granted, and one of the wit- 
 nesses on the first trial (Gibson) having since died, the plaintiffs offered, on the new trial, 
 to show by one of the jurors on the first trial, what Gibson swore. It was objected that 
 the juror must give the very words of Gibson; not the substance of what he swore to. 
 The objection was overruled ; and the court allowed him to state the substance, which he . 
 did. On appeal, the leading opinion on this point was concurred in by all the judges 
 present (three out of five). That was delivered by Judge Carr, who reviews the cases. 
 He did not think the dictum, of Lord Kenyon meant that the very words must be given. 
 This was a restriction which, in ninety-nine cases out of a hundred, would prevent the 
 application of the rule he had just recognized, that the testimony of the former witness 
 might be given. He said, a man who has listened attentively to a witness, especially a 
 juryman (as here), may, if called upon within twelve months (as in our case), give sub- 
 stantially a correct detail of what the deceased witness stated. But if you call upon him 
 to repeat the words, and to swear that they are the very words, no man who had the least 
 respect for Ms reputation would venture to do it, unless he had written down the words 
 at the moment of their delivery. In Pyke v. Crouch (1 Lord Eaym. 730), it is said the 
 matter deposed at the former trial may be proved. It is not confined to the words. In 
 Buckworth's Case (Sir T. Raym. 170), and Coker v. Farewell (2 P. Wms. 563), the rule was 
 
32.6 • JSoidence on Former Trial, [ch. tiii. 
 
 admitted without qualification. In Mayor of Doncaster v. Day (3 Taunt. 261), Mansfield, 
 Chi J., said, what the former witness swore may " be given in evidence, either from the 
 judge's notes, or from notes that have been taken by any other person, who will swear to 
 their accuracy ; or the former evidence may be proved by any other person who will 
 swear, from his memory, to its having been given." This case seemed to him (Judge 
 Carr) to lay down the rule as broadly as any of the former. " A judge's notes will furnish 
 proof of the evidence. These notes, we know, never pretend to contain the very words 
 of the witness. The judge notes the substance only of the facts which he deems material. 
 The same doctrine is also distinctly laid down as settled, in White v. Kibbling, 11 John. 
 Bep. 131, and Miles v. O'Hara, 4 Binn. 111. 1 think, on the whole, that it is the doctrine 
 both of reason and authority, that where a witness who has been examined in a cause 
 dies, his evidence may be proved in any subsequent trial of the cause, if the person prov- 
 ing it will swear that he gives the matter mbslantiaUy." Caton v. Lenox, &c., 5 
 *398 Band. 36 to 39. The courts in Maryland and *North Carolina also take a distinc- 
 tion between the susbstance and the effect of the former testimony ; the substance 
 may be given, not the ej'eci y the exact words are not necessary. Bowie v. O'Neale, 5 
 Har. & John. 336 ; Ballenger v. Barnes, 3 Dev. 460. The now witness, say the court, in 
 the first case, must not give Ms own inference from the former testimony; as the jury 
 alone are competent to draw condimons of fact from testimony. The distinction seems to 
 reconcile Lord Kenyon's rule with the common and practicable course in proving all other 
 matters of hearsay. It deserves illustration. A witness says that A., on the former trial, 
 proved the defendant's handwriting. That would be speaking to the effect of A.'s testi- 
 mony. That A. said he had often seen the defendant write, by which he had become 
 acquainted with his handwriting, and he verily believed that the name subscribed to -the 
 note produced was the defendant's hand, would be the substance. This' would give 
 the words themselves with a degree of exactness, which might, therefore, in one sense, 
 be called the very words. Put the witness to repeat all the Very words of A. with the 
 strictest degree of verbal exactness, and he would blunder even in such a short history. 
 The medium exactness is about the same as required in proving oral slander, perjury, oral 
 contracts, admissions, declarations, &c. Even in New York it is expressly holden, that in 
 swearing to an ordinary conversation, the witness may give Ms impressions as to the sub- 
 stance. Snell V. Moses, 1 John. Rep. 99, 103. 
 
 In Pennsylvania, the narrow construction of Lord Kenyon's rule, if It ever prevailed, 
 maintained but a short ascendency. The judges of that state, like those of New York 
 and Mr. Justice Washington, admit that the law of England requires the very words in 
 the strictest sense ; and did not undertake, like our author and the Virginia courts, to 
 give it a practical application. They seem wisely to have seen that, under a system 
 where new trials in land causes are a matter of course, and where also the right to bring 
 error, or appeal, the liberality of courts in granting new trials, and the facility with 
 which juries are discharged for obstinate disagreement, result in such very frequent re- 
 investigation of causes as we witness in the American courts, and consequently where 
 immense tracts of evidence must lie in the viva voce testimony of deceased or absent wit- 
 nesses on former trials of the same causes, truth will be continually obscured, if we allow 
 the suppression of such testimony. The result has been an avowed departure from what 
 they conceived to be the English rule, in a scries of cases, not only establishing a practi- 
 cal mode of communicating such testimony, but which have enlarged the means for the 
 preservation of other evidence, by a judicious combination of memoranda and memory. 
 
 We have already seen in Miles v. O'Hara (supra), that notes of the former testimony 
 are not per se evidence, by whomsoever made. The following cases will show how far 
 they must be connected with the memory. To prove testimony of a witness, counsel on 
 the former trial was called, but did not remember the testimony, even after he had read 
 his notes. His notes were offered. These were held mere private memoranda from which 
 he might refresh his memory, from which, when refreshed, he must swear, and not from 
 hig notes. Tilghman, 0. J., said ; " In general, the taker of notes condenses the words of 
 tiie witness into what he conceives to be the substance. But the partiality of counsel 
 inclines them to view everything in a light favorable to their cause. During the trial, 
 their ideas pass through a medium that diverts them from the right line." Lightner v. 
 Wike, 4 Serg. & Rawle, 208, 305, 206. In another case, Mr. Douglass, of counsel, stated 
 in writing what he could testify of the deceased witness's evidence, on a former trial 
 between the same parties ; and said " this was all he could recollect of what the witness 
 said on his examination in chief" Held inadmissible. Tilghman, C. J., said : " Evidence 
 of what the former witness swore could not be admitted, unless you had the whole of it. 
 To give what he swore on his examination in cJiief, and omit his cross-examination, would 
 be to deprive the opposite party of the benefit of his cross-examination. He recognized 
 the rule in Cornell v. Green (by the title of Armstrong, &c., v. Green), that the witness 
 may be admitted, if he can undertake to give the substance of what the deceased wit- 
 ness swore : but saidJie must give the whole of it ; not the whole of a long examination, 
 iii which the deceased person may have spoken to a variety of facts ; but he must be able 
 to give the whole of what was said on the particular subject he was called to prove." 
 Wolf V- Wyeth, 11 Serg. & Eawle, 149, 150, 151. In another case, M. was called to prove 
 
SBC. IX,] How I\-oved in the Present, 327 
 
 ■what a deceased witness swore. He gkid he could iiot say the exact -woids, but could give 
 the amount and substance ; remember that there was a cross-examination, but not 
 *399 what questions were puf; but if reminded by questions now, he thought he *qould 
 recollect some of them. Held inadmissible. The court say they do not require the 
 very words, as is done in England, but allow the substance to be given ; but in this, there 
 m.ust be no equivocation or ambiguity. Watson v. Gtilday, 11 Serg. & Eawle, 337, 338, 342. 
 The following cases illustrate still further the degree of connection required between 
 notes and memory, while they settle that the substance of the former testimony need only 
 be given ; and, indeed, in some cases where that is not recollected, that the effect alone 
 ■wUl be received. Fisher, of counsel for the plaintiff, was offered to prove what a deceased 
 witness swore on the former trial. He said, &om having been consulted before the suit was 
 instituted, and directing what was to ^pe done, and from what the deceased witness swore was 
 done, from having ftequently recurred to his notes, and from conversation with him before 
 the trial, he had a perfect recollection of what he swore. He was in the habit of taking 
 down the very words of a witness, not the substance; and believed his notes contained 
 every word. Without his notes, he would not undertake to state every word ; but could 
 state the material part without recurring to his notes. He was permitted to testify. On 
 error, upon this point, the court said, by Gibson, J., they could not see any reason for the 
 rule stated in Phillipps, that the witness must undertake to repeat his very words. The rule, 
 applied in that degree of strictness, would be useless in practice ; but there is no man, be 
 his powers of liecollection what they may, who could, in one case picked out of ten thou- 
 sand, be qualified to give such evidence; and if he should undertake positively to swear, 
 to the very words, the jury ought, on that account alone, to disbelieve him. TIm reason 
 assigned, that the jury, and not the vritness, is to judge of the effect, is more plausible 
 tham sound. The truth is, that evidence of what a deceased witness said, being iaferior 
 in its nature to a personal examination, is admissible, on the ground that better evidence 
 does not remain, the jury being left to form their own judgment of the accuracy of the 
 narration. I cannot see why the same necessity, which opens the way for secondary evi- 
 dence of the very words of a deceased witness, should not open the way also for the 
 substance of his testimony when his very words cannot be recollected, or discover the policy 
 of a rule which should shut out the little light that is left, when it is all that is left, merely 
 because it may not be sufficient to remove everything lUie obscurity. Cornell v. Green, 
 10 Serg. & Eawle, 16, 17., "Where written notes of a deceased witness are proved, it is 
 sufficient to prove, by the person who made ihem, that they contain the true substance of 
 what was said." Miles v. O'Hara, 4 Bin. 108. " It seems jingular, that instead of trust- 
 ing to Mr. Fisher's recoUectiqn, the plaintiff did not offer his (Mr. F.'s) notes in evidence, 
 against which, when properly authenticated, there could be no sort of objection." Gib- 
 son, J., in Cornell v. Green, 10 Serg. & Rawle, 17. In another case, per Gibson, J. : " By 
 the English law, a person who is called to prove what a deceased witness swore, must 
 undertake to repeat his very words ; and not merely to swear to their effect. To do this, 
 would require powers of memory which seldom fall to the lot of any one ; and the rule, 
 under this restriction, although it might often produce peq ury, would be of no practical 
 utility ; for no juror of common discretion would believe a witness who should undertake 
 to repeat the very words of another, in relating the manner in which any transaction took 
 place, whether simple or complicated. But this absurdity has been exploded by this 
 court ; and in this state, it is unnecessary to profess to use the language of a deceased 
 witoess, but only to undertake to state the substance of all he swore in relation to the 
 particular transaction." Smith v. Lane, 13 Serg. & Rawle, 34, 35. In another case, Mr. 
 Forward, of counsel for the defendants, was introduced for them, to prove what H. and C, 
 both deceased, swore on the former trial of the cause. He said, " I was counsel for the 
 defendants on the last trial. I took full notes of the trial. I took down the testimony of 
 the witnesses in question. I believe the greater part is in the words of the witnesses. 
 The whole of it may not be in the very words. I don't recollect the testimony independent 
 of the notes, I do not recollect any question put on the cross-examination, nor whether 
 there was a cross-examination. I believe I put down what was stated by the witnesses in 
 reply. I may have omitted to note what I supposed to be Immaterial to the issue trying." 
 On objection, his notes were received in connection with his testimony. On error, held 
 well. The court denied that the former testimony need be given word for word. Swear- 
 ing to his belief that the notes contain the true substance, is sufficient. There was no 
 prpof here of any cross-examination ; much less, that it produced anytliing worth remem- 
 bering. To require the identical words, would destroy the rule which admits this kind of 
 evidence. It was impossible after a lapse of time, for an indifferent person to remember 
 the words, or an advocate or j udge to note down everything, whether pertinent or not. 
 Without notes, one may state substance, but not words. The only chance of approaching 
 the words is by the notes of the j udge or counsel. Even in proving slanderous words, a case 
 of great strictness, all the words are not required. The witness, without pretending to 
 give all, may give what he does remember. In proving a lost deed, or other writing by 
 parol, no one ever heard of a witness being called on to repeat verbdtim. True, counsel 
 may sometimes take notes chiefly to assist their own arguments. They may set down 
 part and trust to memory for part. But if the notes on one side are not trusted, let those 
 
328 Miidence on Former Trial. [ch. viii. 
 
 "iThe exception in question applies to d^ositipns taken in chancery or 
 before magistrates, and receives mucli illustration from the decisions 
 r.especting those kinds of documents. It will, therefore, be further consid- 
 ered in that part of the work which treats of written evidence. 
 
 Sow testimony may be proved. The proof may be given, either by notes 
 made at the time by a party who heard the testimony, provid^ed. he can 
 swear to their accuracy, or from the memory of such party ;(1) or even, it 
 
 has been said, from the judge's. notes. (2) 
 *401 *It has been said, that the person called to prove what a deceased 
 witness said on the former trial, must.undertake to repeat precisely 
 his very words, and not merely to swear to their effect. (3) This, it is con- 
 ceived, can only mean, at the furthest, that he must be able to speak to the 
 identical words of the former witness, when it is essential thfit the very iden- 
 tical words should be known. In gome cases, proof of the substance of the 
 former evidence may be as satisfactory as proof of the identical words, — 
 unless the witness can undertake (what is not possible) to deliver the same 
 words precisely with the same manner and in the same tone. Even on an 
 indictment for perjury, it has been held sufficient, that a witness state from 
 recolle^ion the evidence which the defendant gave, — ^though he cannot say 
 with certainty, that it was all the evidence which he gave, — if he can say wiih 
 certainty, that it was all he gave on that point, and that there was nothing 
 to qualify it. (4) Where a person, who had been sworn on a former trial 
 
 on the other be produced and sworn to, if they can be sworn to, or the notes of the judge, 
 or let recourse be had to the memory of jurors, or other persons present, if it shall be 
 insisted that memory is safer than writing. Chess v. Chess et al., 17 Serg. & Rawle, 409. 
 On the trial of Ballenger v. Barnes (3 Dev; 460), which was a case much like the last, the 
 course here recommended was pursued. The counsel testified for the plaintiff, to the sub- 
 stance, ffom notes ; and the defendant afterwards, when it came his turn to go on with 
 his proof, added evidence of oklier facts, to which the former witness swore. He then 
 moved to shut out the whole as incompetent, because not truly given at first. But this 
 was not allowed ; and the result of the examination on both sides went to the jury. On 
 motion for a new trial, the practice was decidedly approved. Henderson, J., said, " No 
 man can give the words where the testimony exceeds a single sentence." p. 465. On 
 another occasion, a witness testified to what a former deceased witness stated, and remarked 
 that his memory had been refreshed by hearing the notes of the former testimony read. 
 It was held proper, then, to inquire of him whether he had not heard the counsel say on 
 oath, that the notes were taken, not on the former trial, but preparatory to it, and con- 
 sisted of what the counsel expected to prove. Withers v. Atkinson, 1 Watts, 336. 
 
 (The minutes of the j udge who presided on the former trial are not of themselves evi- 
 dence of what the witness testified to ; but if the person making them can swear that 
 they are correct, or that he has no doubt of their being so, they are admissible. Huff v. 
 Bennett, 4 Sand. 120 ; Jones v. Wood, 16 Penu. State K. 25 ; 13 Id. 90 ; Regina v. Bird, 
 mpra. The precise words of the deceased witness need not be given ; but the person 
 called to prove his testimony must state the substance of his whole testimony. Young 
 V. Dearborn, 2 Foster (N. H.), 372 ; Kendrick v. The State, 10 Humph. 479. If he took 
 minutes of the evidence taken on the former trial, and testifies to their accuracy, he may 
 read them. Van Buren v. Cockburn, 14 Barb. 118 ; Riggings v. Brown, 12 Geo. 271. See 
 also Williams V. Willard, 23 Vt. 369 ; and Marsh v. Jones, 21 Id. 378.) In Halsey v. Lin- 
 sebaugh, 15 N. Y. R.. 485, tlie minutes of the counsel taken on a former trial were held 
 admissible, the counsel testifying that he had no doubt of their correctness ; the Court of 
 Appeals, per Selden, J., liolding that the minutes were admissible upon the general prin- 
 cipal "that an original memorandum, made by the yniness vresently after the factg noted 
 in it transpired, and proved by the same witness at the trial, may be read by him, and is 
 evidence to the jury of the facts contained in the memorandum, although the witness may 
 have totally forgotten such facts at the time of the trial." 22 N. Y. R. 462 ; 29 Id. 846. 
 
 (1) Doncaster (Mayor) v. Day, 8 Taunt. 262 ; Strutt v. Bovington, 5 Esp. 57 ; S. C, 1 
 Stark. R. 211, n. See also by Lord Kenyon, C. J., in R. v. Joliffe, 4 T. R. 390. 
 
 (2) By Lord Mansfield, C. J., in Doncaster (Mayor) v. Day, ut supra. See Crease v. Bar- 
 rett, 1 C., M. & R. 919. 
 
 (3) Lord Palmerston's Case, cited by Lord Kenyon, C. J., in R. v. Joliffe, 4 T. R. 396 ; 
 Ennis v. Donnisthorne, Corn. Sum. Ass. 1789, by Lord Kenyon, C. J., citing R. v. Dobbragh 
 from one of his own notes. 
 
 .(4) R. V. Rowley, 1 Mo. Cr. Ca. Ill ; R. v. Dowlin, Pea. R, 170. See also R. v. Jones, 
 Id. 88. 
 
SEC. X.] Admisswns by fairties. 329 
 
 between the same parties on the same issue, and subpoenaed to appear as a 
 witness at a second trial, did not appear in obedience to the writ, the Court 
 of King's Bench seeing reason to believe that he had been kept away by the 
 contrivance of the adverse party, admitted other witnesses to prove what 
 he had sworn on the former occasion. (1) 
 
 Who are considered the same parties. It has also been Iteld, that where a 
 witness has been examiaed as the attesting witness to a will upon an issue 
 of devisavit vel non, in which A. and others were plaintiffs, and B. defen- 
 dant, his examination, after his decease, may be adduced by B. in an 
 ejectment, brought by him against A. alone; for the lessor of the plaintiff 
 is the real party in an enjectment, and A. had the same power at the former 
 trial of objecting to the competency of the witness, and the same right of. 
 cross-examination and- of calling witnesses to contradict or discredit his 
 testimony, as he would have had, if the witness had been alive and sub- 
 poenaed on the second trial. It was also held, that the evidence was pro- 
 ducible m the cause for the same purpose and to the same extent, as if the 
 witness had been alive and had given his evidence ; consequently, that his 
 evidence at the former trial was sufficient proof of the will, and the evi- 
 dence of a surviving witness was not better evidence. (2) 
 *402 *JF^ivies. It seems that the same rule would apply, where the par- 
 ties to the first trial were represented on the second occasion by 
 persons who had succeeded to them by privity of law, of blood, or of 
 estate ; and that the rule upon the subject is in this respect analogous to 
 that which prevails as to estoppels by judgment, the admissibility of ver- 
 dicts, and the effect of admissions. (3) 
 
 SECTION X, 
 
 Meceptions to the General Rule as to Hearsay, in the case of Admissions by 
 
 Parties to the Suit. 
 
 Exceptions to the rule respecting hearsay evidence are made in the case 
 of admissions by parties to the suit, and in the case of confessions by 
 prisoners. The principle on which they are received is founded chiefly on 
 the reasonable presumption in favor of the truth of a statement, when it is 
 against the interest of the person who makes it. (4) 
 
 (1) Green v. Gaturk, B. N. P. 248. 
 
 (2) Wright V. Doe d. Tatham, 1 A. E. 321. 
 
 (3) See Doe d. Foster v. Earl of Derby, 1 A. & E. 790, where the evidence was rejected 
 on the ground that the two trials were not substantially between the same parties. See 
 the decisions as to deposftions, and as to verdicts and admissions, infra. 
 
 Note 116. — Beals v. Guernsey, 8 John. Rep. 446, S. P. The record of the former 
 recovery was produced to lay the foundation for the testimony of a, deceased witness. 
 Jackson ex dem. Bates v. Lawsoh, 15 John. Rep. 589. If no objection be made for the 
 want of the roll. Nisi Prius record, or other preliminary evidence that the former cause 
 was tried, it will be presumed that such was the fact ; and the objection cannot be after- 
 wards made. Beals v. Guernsey, 8 John. Rep. 451 ; White v. Kibling, 11 John. Rep. 128. 
 (As to proof of witness's death, that he was, when he testified, a very old man, and that 
 the now witness believes, though he does not positively know him to be dead, was holden 
 sufficient. Pegram v. Isabell, 2 Hen. & Munf. 193.) 
 
 (4) Note 117. — The learned author has not thought it necessary to observe, that the 
 admission or declaration of a pai"ty shall not be received as evidence in his favor. As a 
 general rule this is most plain. Yet even this rule is by no means universal ; for, as will 
 hereafter be seen, declarations which make a part of the res gestae, entries in book 
 accounts, declarations by officers in their returns, and admissions given in evidence by the 
 opposite party, are many times evidence in favor of the person who makes them. Declar- 
 ations, too, which, when made, are against the party, may sometimes be given in 
 evidence by himself on that ground ; as where he indorses a payment upon a bond or 
 note, which he may sometimes use to repel the Statute of Limitations, or the presump- 
 tion of payment arising from the lapse of time. All these and other like cases will be 
 found to present themselves in the course of this and subsequent notes. So many admis- 
 
 voi;. I. 42 
 
330 Admissions by JPaHies, [cH. Tin. 
 
 sions or declarations have been proposed, as evidence, for tte party making them, upon 
 the above or some other grounds ,'so many American cases have arisen and been reported, 
 pointing out principles upon ■which, they are to be received or rejected ; and, withal, the 
 distinqtions are sometimes so subtle' between those which are admissible and inadmis- 
 sible, that a glance at the latter will be found quite useful towards an understanding of 
 the former. I propose, therefore, to introduce the subject here, by noticing some of those 
 which are not admissible, to be followed by some few wlych are admissible, leaving the 
 latter, however, mainly to subsequent and more appropriate heads of this work. 
 
 First, then, as to the general rule. An admission or declaration is not admissible in 
 favor of the party making it. La Farge v. Kneeland, 7 Cowen's Bep. 459 ; Bobbins ■ 
 *403 V. Hiarvey, 5 Conn. Bep. 335. *And even an indorsement of part payment on a 
 promissory note, is not of itself, and as a matter of course, admissible to take it out 
 of the Statute of Limitations. Whitney v.Bige],ow, 4 Pick. 1 10 ; Boseboom v. Billington, 
 17 John. Bep. 182. When it may be received will be seen infi;a in this note. So of a 
 credit on an account-book, the credit being small in proportion to the account, dated after 
 six years have run, and apparently made with a view to elude the statute. Taylor's Ex'rs 
 V. M'Donald, 3 Bep.. Const. Ct. 178 ; S. C, cited 8 M'Cord, 418, 419, 430. 
 
 It was said in Boseboom v. Billington (mpra), that the indorsement would have been. 
 admissible had it been sliown to have been made at a time when it was against the inter- 
 est of the party who made it. But this principle of receiving admissions is by no means 
 universal, nor is it a sufficient reason that the admission is made before any controversy- 
 has arisen. Thus, in an action for goods sold, the defendant had been charged as trus- 
 tee in respect to the debt in question as due to a third person, and had admitted, this to 
 be so, and had judgment against him. The debt was in truth due to the plaintiff, tho^^h 
 the question was a doubtful one upon the facts. Held, that the deffendant's admissions in 
 the former suit were not evidence for him. Wise v. Hilton, 4 Greenl. 435. So an entry 
 In the party's books, though' at- the time against him, is not afterwards evidence for him.. 
 Thus, in assumpsit on h, note payable to the plaintiff's testator, against five persons as 
 makers, one question was, whether two were not principals, and the other three sureties. 
 To show this, the book of the two crediting the note as their own to the testator at its 
 date, was offered by the defendants. Though the entry was against the interest of the 
 two at the time, yet held that it could not be used in their favor, or in favor of their 
 co-defendants. Schermerhorn v. Schermerhorn and others, 1 Wend. Bep. 119. So, in an 
 action on a note, dated 14th April, 1838, commenced by attaching the goods of the maker, 
 Gregory, on the same 14th day, Peck, a subsequent attaching creditor, was allowed to 
 defend on the alleged ground that the plaintiff's note was a. fraud on creditors. A part 
 of the consideration of the plaintiff's note was two orders drawn by Gregory on, and 
 accepted by the plaintiff, in favor of two other creditors of Gregory, on the same day. 
 To show that the orders were laccepted anterior to the commencement of the suit, the 
 plaintiff offered in evidence his own declaration to B., a witness, made on the same day, 
 but before the attachment, that he had agreed to pay the debts secured by the orders. 
 Held inadmissible. The court, by Parker, C. J., said, " The declarations of a party in his 
 own favor, by the general rule, are inadmissible. A man cannot testify in his own cause ; 
 much less can his declarations not under oath be admitted. There are cases of declara- 
 tions or entries, operating in favor of the party making them, which are admissible ; but 
 in all instances they relate to or accompany some act, and therefore are a part of the rea 
 geatm. The declarations excluded in this case were not of that character, but mere naked 
 assertions of a fact, which do not come within any of the exceptions to the general rule. 
 It is said that the declaration so made is a fact. That is true ; but the fact is also a dec- 
 laration only, made by a party to support his own interest. Now it is true that, at the 
 time of making the declaration, it probably had no reference to any controversy. Yet, if 
 it be admitted that such declarations are good evidence, we shall soon find cases of decla- 
 rations and assertions of a fact as having happened, with a view to support what may be 
 afterwards done, when it is too late to have its effect, and when it may become necessary 
 to ante-date, if we may use the expression, the fact in controversy. I cannot see that 
 anything beyond this is meant by Starkie (Ev. pt. 1, pp. 48, 49), and he cites no authority 
 for some of his positions. Carter v. Gregory, 8 Pick. 165, 168, 169. In Massachusetts, 
 the return and acts of a ministerial officer are denied as evidence in his favor. Thus, in 
 trespass by the plaintiff, a deputy sheriff, he proved that he had attached certain prop- 
 erty of S. on the 17th December, 1835, wnich was afterwards removed by the defendant. 
 The defendant, another deputy, offered in evidence a writ, and his own return upon it, 
 showing that he had attached the same property the day before, and also, that ou the 
 day before, he was seen at work within view of the property, and told a witness he had 
 attached it. Held, that neither the return nor declarations were admissible, not being a 
 part of the res gettm. Merrill v. Sawyer, 8 Pick. 397, 898. But see Cornell v. Cook (7 
 Cowen's Bep. 310, 818), also stated infra, contra, with several similar cases also noticed 
 infra, of the return and records of officers. 
 
 Letters written by a party are not evidence for him. Powle v. Stevenson, 1 John. Cas. 
 110; Champlin v. Tilley, 8 Day, 803, 306. Thus, in ejectment by the proprietor of 
 Pennsylvania, the defendant showed a deed to himself. The plaintiff offered a letter 
 
BEo. X.] General Hule. 331 
 
 •404 from William Penn, the *proprietor, to show that the grant was on a condition not 
 performed. Overruled, oh the ground that a man cannot create evidence for him- 
 self. Proprietary's Lessee v. Ralston, 1 Ball. 18. 
 
 If a party's declarations or admissions, which when taken in one way are evidence 
 against himself, shall not be received for him ; if his letters iff' his own favor are to be 
 excluded, it follows of course that other oral or written declarations, either indifferent at 
 the time or favorable to his own interest, are inadmissible. Accordingly, in an action 
 against A. •& B., as partners, on a contract executed in the partnership name, A. suffered 
 a default, and B. pleaded the general issue. Held, that letters vrritten by A. in the 
 partnership name could not be read in evidence by B. to show that he was not a partner 
 with A, Champlin'sEx'rv. Tilley, 3'Day, 303, 306. 
 
 It is said, the declarations of a party are never evidence for him, unless they accompany 
 acts and he pars res gestm, and are offered as such ; not even to prove insanity. State v. 
 Scott, 1 Hawks, 24. So in trespass against an oVerseer for killing the plaintiff's slave, 
 the defendant offered evidence of an apology which he rendered to the surgeon for not 
 calling in his aid sooner, after beating the slave. Held inadmissible. Perrie v. "Williams, 
 5 Mart. Lou. Eep. (N. S.) 694. The registry of a vessel procured by a party is no evidence for 
 him, though it may be against him. Ligion v. Orleans Nav. Co., 7 Lou. Eep. (N. S.) 682, 
 683. A prisoner has no right to demand that his statements, on examination before the 
 magistrate, be read for him. The People v. Jordin^, N. T. Gen. Sess. Oct.. Term, 1818, 
 Jud. Repos. 107. Nor what he said in conversation when charged with the offense (Peo- 
 ple V. Scott, N. T Gen. Sess. Sept. Term, 1818, Jud; Bepos. 50), unless it be a part of the 
 res gesta, or to discredit sf'witness (Id.), or be introduced by the prosecution. Id. A sur- 
 vey, though ancient, made by direction of the owner of the land, for his own convenience, 
 is not admissible evidence for him or those claiming under him. Jones v. Huggins, 1 
 Dev. 323. On a question whether the plaintiff, to whom cotton was consigned as a factor 
 of the defendant, had sold it in a foreign market ; held, that the plaintiff's letters, aver- 
 ring and inclosing an account of sales of the cotton, among other articles, though offered 
 merely with the view of fixing the defendant with notice and subsequent acquiescence in 
 the correctness of the accounts, and so to infer the sales, were inadmissible. Anthoine v. 
 Coit, 3 Hall's Rep. C. P. N. Y. 40. In an action against alleged partners, the declarations 
 of the defendants, made subsequent to the commencement of the alleged partnership 
 business, are not admissible for them to limit its nature and extent ; as to show it an 
 agency the one for the other; though an agreement between them, at or before its com- 
 mencement, would be. Mitchell v. Eoulstone, 3 Hall's Rep. C. P. N. Y. 351. A written 
 communication, made by the defendant to the plaintiff, in respect to the claim of the latter, 
 was held inadmissible in evidence for the defendant. Birkbeck v. Burrows, 3 Hall's Eep. 
 C. P. N. Y. 51. In an action for fraudtdently passing the bills of a broken bank, the 
 plaintiff was denied liberty to prove that he showed the bills to the witness and stated 
 that he had them from the defendant — even to show how the witness's attention was 
 drawn to the bills, and thus strengthen the inference that he had correctly identified them 
 with bUls which he had before seen in the hands of the defendant. Watson v. Osborne, 
 8 Conn. Rep. 363. An inventory made and returned by an administrator, after an action 
 commenced by him for the recovery of the property inventoried, is not evidence for him. 
 Allender v. Riston, 2 QiU & John. 86. The admissions of a debtor against the garnishee 
 in a foreign attachment are not receivable ; for they go to throw the claim from the debtor 
 on to another. Enos v. Tuttle, 3 Conn. Eep. 247. In an action against a sheriff for not 
 returning an execution within thirty days, his return, indorsed that he omitted to do so 
 by reason of sickness, is not admissible to prove the fact ; for it is no part of his office 
 to make such a return. BruCe v. Dyall, 5 Monroe, 125, 126. Therefore, it is no more than 
 a written declaration by a private person. Id. 
 
 It is the same though the declarant be dead, and his declarations be offered for his 
 estate. Thus, in trover for bonds of the intestate, the defendant (the intestate's son) 
 insisted the intestate gave them to him. The intestate's declarations tending to negative 
 this, made in the defendant's absence, were held inadmissible. Romig v. Romig, 2 Rawle, 
 241 ; ScuU et al., Adm'rs of Irwin v. Wallace's Ex'rs, on error, 15 Serg. & Eawle, 231, 233. 
 
 A corporation is in this respect on ia, footing with natural persons. Thus the North 
 Carolina State Bank, being a mere private corporation, its books of accounts of bank 
 dealing are not, in a suit between the bank and a third person, evidence for the former. 
 The State Bank of N. C. v. M'Neil, 1 Hawks, 36. 
 
 So the statements of a party's agent are not admissible for him, unless a part of 
 *405 the res gestm. *Thus the letters of an agent giving his principal an account of what 
 had taken place in respect to the matter of his agency are inadmissible for his 
 principal, even after the agent's death. Norton's Adm'r v. Smith, 4 Monroe, 314. 
 
 Admitting a party's declaration in his own favor, if objected to, is fatal on error, though 
 the court below direct the jury to disregard it. Tuttle v. Hunt, 2 Cowen's Rep. 436 ; Pen- 
 field V. Carpenter, 13 John. Eep. 350; Fisher v. Bailey, 1 Ashmead's Eep. 309. (The 
 defendant cannot prove a conversation between himself and the plaintiff's agent, to show 
 admissions by the latter after the business of the agency has been closed ; because the 
 agent's declaife.tions bind his principal only when they are a part of the res gestce, and his 
 
332 Admissions by Parties, [ch. vin. 
 
 own declarations could only be admissible as forming a part of the conversation in which 
 the plaintiff participated. Budlong v. Van Nostrand, 24 5arb. 35. In Meserole v. Archer 
 (3 Bosw. 376), the court held it admissible to show the agent's declaration to her principal, 
 in reference to an act done and the reply; and in Bedell v. The Com. Ins. Co. ( 3 Id. 147), 
 evidence of conversations between the agent of the defendants and one West, was admit- 
 ted after it had been proved that the agent had been referred by the insured to West as 
 the person who would settle the whole matter. But the general rule stands firm, that the 
 declarations of a party cannot be received in his own favor. Isles v. Tucker, 5 Duer, 393 ; 
 Brben v. LoriUard, 19 N. Y. Bep. 299.) 
 
 Secondly. It remains to consider some exceptions to the rule that a party's declarations 
 or admissions shall not be received as evidence for him. These exceptions arise in general, 
 when they are connected with some circumstance giving the evidence a force beyond what 
 it can have as a mere naked assertion. Accordingly, a constable's return is evidence for 
 him in an action for taking the goods away under pretense of a previous levy. Cornell 
 V. Cook, 7 Cowen's Rep. 310, 313. Contra, Merrill v. Sawyer, m/pra. But why should 
 this not be so ? Indorsing a return is part of his office. It is an act, not only a part of 
 the res geatm, but the ru gestae itself. On what other principle is it that the record of a 
 justice, drawn up for the very purpose long after the conviction, will protect him against 
 an action ? Fawcett v. Fowles, 7 Barn. & Cress. 394 ; Rogers v. Jones, 3 Id. 409 ; Mather 
 V. Hood, 8 John, Rep. 44 ; Bridgett v. Coyney, Esq., 1 Man. & Eyl. 211, per Ld. Tenderde n, 
 C. J., towariis the close of his opinion.' But to make a return evidence for the officer, it 
 must be strictly withiu his official duty ; for where he indorsed that he had omitted to 
 return within the required time by reason of sickness, this was holden out of his duty, 
 and therefore not admissible for him. Bruce v. Dyall, 5 Monroe, 125, 136. 
 
 A certificate of a justice (authorized as evidence generally by a statute in New York) 
 of a judgment, execution or other proceeding in a cause before him, is evidence for him- 
 self. It may be made out after the expiration of his office. Maynard v. Thompson, 8 
 Wend. 393. Sernh. In an action by an officer for property levied on by him, his own 
 indorsement on the execution of the property levied on, is evidence to identify the prop- 
 erty. Spoor V. Holland, 8 Wend. 445. 
 
 An indorsement of part payment upon a promissory note, everything about it appearing 
 fair, is admissible as evidence to the jury to take it out of the Statute of Limitations, and, 
 will control, unless the defendant impeach it in "some way. Gibson v. Peebles, 2 M'Qord, 
 418. As where the note was large (e. g. four hundred dollars), and the indorsement bear- 
 ing date two years after the date of the note, was of three himdred and fifty dollars, 
 leaving a balance of only fifty dollars. Id. Or where it is proved that the indorsement, 
 was in truth made when it was against the interest of the party who made it. Eoseboom 
 V. Billington, 17 John. Rep. 183. In such case, it will be received to rebut the presump- 
 tion of payment arising from the lapse of time. Id. see note ante, p. 364. 
 
 So where the party's declarations are a part of the rea gestae, they are evidence for him. 
 Smith V. Morrow, 7 Monroe, 334, 236. Thus, though the declarations of a testator of the 
 plaintiffs in general are not evidence for his executors, yet, where he had been adminis- 
 trator of the defendant's intestate, never having brought in his account, and this omission, 
 was urged against him as showing that he knew he had no claim, held, that his declara- 
 tions that the intestate's estate was indebted to him, might be received to rebut the 
 inference sought to be raised. Scull et al., Adm'rs of Irwin v. Wallace's Ex'rs, on error, 
 15 Serg. & Rawle, 331, 233. And it was put that a prisoner's conversation may be evi- 
 dence for, him where it is a part of the res gestw. People v. Scott, N. Y. Gen. Ses., Sept. 
 Term, 1818, Jud. Repos. 50. So, on a trial for forcible entry and detainer, the question 
 being upon the relator's entry, and the extent and nature of his possession ; he having 
 proved that he was in possession, was allowed to show his own declarations as to its 
 extent, and the person under whom he held. Smith v. Morrow, 7 Monroe, 234, 236. And 
 see several other cases to this point, cited in a subsequent note, devoted more particularly 
 to the subject of declarations constituting parts of the res gestae. 
 
 'The question whether, and how far, the introduction of the defendant's confession or 
 declaration in evidence by the plaintiff, et sic e converso, shall make it evidence for the 
 party who made it, has arisen principally upon the confessions of prisoners on trial for 
 crimes. By these cases and others, the following general doctrine seems to be well estab- 
 lished : — A party's declarations are evidence in his favor when introduced by his oppon- 
 ent ; though their truth may be contradicted by contrary declarations of the former, or 
 by other evidence, and the whole shall go together to the jury, wlio are not bound to 
 credit the exculpatory confession. Rex v. Jones, 2 Carr. & Payne, 629 ; Rex v. Higgins, 3 
 Id. 603 ; Rex v. Clewes, 4 Id. 231 ; Rex v. Steptoe, Id. 397 ; Smith v. Blandy, Ry. & Mood. 
 N. P. Rep. 357 ; Cray v. Hall, cited Ry. & Mood. N. P. Rep. 358 ; Remmie v. Hall, Mann. 
 Dig. 464, cited and explained in Smith v. Blandy; People v. Scott, N. Y. Gen. Ses., Sept. 
 Term, 1818, Jud. Repos. 50, note. The above cases of Rex v. Jones and Rex v. Higgins 
 are stated more at large, post,: in the note respecting confessions by prisoners. 
 
 A party's declarations are, of course, inquirable into, in order to test the credit of a wit- 
 ness ; as, if the witness has stated them in a certain way, then the party may contradict 
 him by showing what in truth he did not say at the time, in order to correct or dis- 
 
SEC. X.] Whole Admission to be received. 333 
 
 *406 *It is obvious, that the evidence which is the subject of these excep- 
 tions, is liable to many of the objections attaching to hearsay evidence 
 in general. Other objections are of a peculiar nature, especially in the 
 instance of confessions. And in the instances in -which persons are liable 
 to be affected by the admissions of others, as being identified with them, 
 the principles upon which the exceptions under consideration are founded, 
 lose a considerable part of their effect. Hence, these objections are sub- 
 jected to certain restrictions and qualifications, — ^which it is proposed to 
 treat of, First, as they regard the law of admissions, — Secondly, as they 
 regard the law of confessions. 
 
 The present section treats of admissions ; the following section of con- 
 fessions. 
 
 It is proposed to treat the subject of admissions in the following order : 
 
 First, of general admissions by a party to the suit, or by one for whose 
 benefit the suit is brought. 
 
 Secondly, Of admissions made under a judge's order. 
 
 Thirdly, Of admissions made by a general agent of a party to the suit, 
 and 
 
 Fourthly, Of admissions made by particular agents, such as under-sheriffs, 
 bailiffs, guardians, attorneys, &c. 
 
 1. Of general admissions by a party to the suit, or by one for whose 
 benefit the suit is brought. 
 
 Whole of admission to be received. On the subject of admissions, it may 
 be laid down as a first principle, that the whole of the statement containing 
 the admission is to be received together. (1) This is necessary, in order to 
 enable the court to judge of the true meaning and extent of the admission, 
 wl)ich, when taken entire, will often have a different import from that which 
 a partial account might convey. (2) 
 
 credit the -witness. Conceded in People v. Scott, N. T^ Gen. Ses: Sept. Term, 1818, Jud. 
 Bepos. 50. 
 
 (1) See cases collected in note to Roe d. Pellatt v. Ferrars, 3 B. & P. 548 ; Dartmouth 
 (Countess) v. Roberts, 16 East, 334 ; Barns v. WMtmore, Bac. Ab. tit. Evidence, 623; B. 
 N. P. 337 ; Salk. 286 ; Bearss v. Coply, 10 N. Y. Rep. 93. 
 
 (2) By Abbott, C. J., in Thompson v. Austen, 2 D. & R. 861. See, also, Fletcher v. Frog- 
 gatt, 2 C. & P. 569. 
 
 Note 118. — Gray's Ex'rs v. Kernahan, 2 Nott & M'Cord, 60 ; Davis v. Verdiier, 1 M'Cord, 
 
 320 ; Grimes v. Smith, 1 Marsh. Kent'y Rep. 205, 206 ; post, notes as to confessions; Vib- 
 
 bard v. Staats, 3 Hill, 144 ; Bennett v. Burch, 1 Denio, 141 ; Kelsey v. Bush, 3 Hill, 440 ; 
 
 Delamater v. Pierce, 3 Denio, 315 ; Dorlon v. Douglass, 6 Barb. 451 ; Stephens v. 
 
 . *407 Vrooman, 18 Barb. 250 ; *Turner v. Yates, 16 Ho-w. U. S. 14 ; Franklin Bank 
 
 V. Cooper, 26 Maine, 180 ; Roberts v. Gee, 15 Barb. 449 ; Wakefield v. Crossman, 35 
 
 Vt. 298 ; 10 N. Y. R 93 ; 30 Barb. 663. 
 
 The rule that a confession shall be taken together is correctly laid do-wn in the text, 
 ■with its qualification, that though it shall be received together, yet every part is not 
 always entitled to equal weight. See note 133. The confession intended by the rule 
 comprehends any one entire connected conversation or declaration, oral or -written, or 
 both ; but not several distinct declarations or conversations at diflerent times, though on 
 the same subject (Galbraith v. Green, 13 Serg. & Rawle, 85), and in prosecuting the same 
 negotiation. It is the time, not the subject or nature of the coflversations, that deter- 
 mines their identity. Thus, in a suit by the plaintiff against a to-wn for supporting W. 
 as a pauper, the defendants, to sho-w that W. was not a paiiper, proved that their agents 
 applied to' the plaintiff and negotiated with him to deliver them a note, -which the 
 plaintiff admitted to belong to W. To rebut this, the plaintiff offered to show that 
 in pursuance of the previous negotiation and a, short time afterwards, he delivered 
 the note to the agents, declaring it was not W.'s. This was permitted at Nisi Prius ; but 
 on motion for a new trial, held inadmissible. Ste-wart v. The Inh. of Sherman, 5 Conn. 
 Rep. 344. It has repeatedly been held that -what a party says at one time cannot be used 
 by him to explain what he said at another. Per CJolden, Senator, in Murray v. Coster, 4 
 Cowen's Rep. 630 ; Blight v. Ashley, 1 Pet. C. C. Rep. 15 ; Patton v. Goldsborough, 9 Serg. 
 & Rawle, 55, per Tilghman, C. J. ; Martin v. Root, 17 Mass. Rep. 237. Thus, in dower; 
 where the defense is that previous to the marriage, the lands had been given by the 
 deceased husband to his son, held that the declarations of the deceased that he had not 
 
334 Admissions by Parties. [ch. viii. 
 
 so granted the land, were not admissible to rebut evidence of Ms declarations that he 
 had, unless they were a part of the same conversation given in evidence. Galbraith v. 
 Green, 13 Serg. •& Rawle, 89, 93. Again : on trial of an action of trespass, q. c. /., it be- 
 coming material to ascertain whether the lot in question had been drawn as a proprie- 
 tor's lot, the plaintiff, who claimed it as a drawn lot, read, from their records. The 
 defendant offered to read from the same records the proceedings of an adjourned meet- 
 ing of the same proprietors to explain away the first. Held inadmissible, as not being of 
 a transaction at the same time vrith that first recorded ; and therefore not coming within 
 th« principle that an adrnission or paper shall be taken together. Pike v. Dyke, 3 Greenl. 
 213, 316, 217. But in an action for a fraud in the Bale of ai deceased negro, the defend- 
 ant, to show the plaintiff considered the negro sound, proved that he wrote a letter and 
 Bent it by the negro to C. K., offering him the negro for a sound price. The plaintiff 
 offered to show that the negro had a wife at C. K.'s, and wished to go to him ; and that 
 the plaintiff told a Witness, at the time of writing the letter, that he would fix a price 
 which C. K. would not ^ve, wishing to deceive the negro and prevent him from abscond- 
 ing, through fear of being returned to the, defendant. Held admissible. Duvall v. Med- 
 tart, 4 Har. & John. 14. In ejectment, the plaintiff cla,imed under Smith, against his 
 executors, and gave in evidence his admissions identifying the lot granted to the plain- 
 tiff's ancestor. The defendants, to do. away those admissions, offered in evidence Smith's 
 subsequent admissions (statements on paper) in explanation. Held inadmissible. Fei 
 Tilghman, C^ J; : ; " When a confession is given in' evidence, the whole is to be taken 
 together ; but a confession made at one time cannot be rebutted by a declaration at an- 
 other time, because, :if that were permitted, a man might destroy his confeissiona by sub- 
 sequent declarations to the contrary." Patton v. Goldsborough, 9 Serg. & Rawle, 47, 55. 
 So, in ejectment, the defendant claimed that a warrant for the land which was taken in 
 his wife's, name {the dfl,ughter of H.) was for her use, and proved H.'s acknowledgments 
 that this was so. The plaintiffs offered other conversations of H., asserting that the war- 
 rant was for his own use. Held inadmissible. M'Pheake v. Hutchinson, 5 Serg. & Rawle, 
 395, 297. But where a person was examined . as to his books (they being absent) before 
 commissioners of bankruptcy, as to his dealings with the bankrupt, and by his consent, 
 the accountant to the commission making extracts from them, held that these extracts 
 could not be used as evidence against him, without also reading his examination. Yates 
 V. Carnsew, 3 Carr. & Payne, 99. In an action by a woman for a breach of marriage prom- 
 ise, the defendant, to mitigate damages, asked the plaintiff's physician if hef, in attending 
 her, had not prescribed for a disease other than pregnancy, who answered he had ; and 
 the only knowledge he had of it was from her information ; and here the defendant 
 Insisted on Bt<q>ping. But the plaintiff's counsel were allowed to show that in the 
 *408 same conversations she declared the disease to be the venereal, *which was com- 
 municated to hfir by the defendant himself. Withers v. Richardson, 5 Monroe, 
 94, 95. 
 
 The rule that confessions or declarations shall be taken together is confined to them as 
 such and not where they are themselves the very grievance complained of. Thus, in an 
 action for libel or slander, the defendant's declaration of its truth at the time is not evi- 
 dence ; for so no action would lie for a libel or slander, without, in the first place, show- 
 ing the falsity ; whereas, it lies with the defendant, if he would justify, to show the truth. 
 Bice V. Withers, 9 Wend. 138. 
 
 Where, taking the confession together, the branch making against the party is com- 
 pletely avoided, qualified or explained away by another branch, and there is nothing 
 beside, either intrinnc or extrinsic the latter branch to render it questionable, the first is 
 neutralized ; and the whole is considered by the cases as not Weighing a feather against 
 the party. Thus ill assumpsit for goods sold, the defendant's confession that he had 
 bought the goods, but paid for them, is not sufficient to entitle the plaintiff to recover. 
 Smith V. Jones, 15 John. Rep. 239. So, where the defendant admitted he had received 
 goods, but accounted for them, held the whole should be taken together. Benedict, 
 Adm'r V. Nichols, 1 Boot, 434. So, "I have received a dollar; bat it was my due." Car- 
 ver V. Tracy, 3 John. Rep. 427. " You did services for me ; but I did not employ you, and 
 am under age." (Walling v. ToU, 9 Id. 141) ; so " I want to sell the horses, for I have 
 offered them to F., who refused them ;" the latter being material to do away the effect of 
 a simple offer to sell (Fenner v. Lewis, 10 Id. 88) ; so "I killed your dog ; but it was be- 
 cause ne assaulted me in the night in the highway." (Credit v. Brown, Id. 365) ; so, on a 
 question of nonjoinder of plaintiffs, " I and H. gave our note ; but he signed it as surety, 
 and we were not jointly interested in the subject of the suit." Hopkins v. Smith, 11 Id. 
 161. See poatj note 123. The defendants pointed out twenty-five small hogsheads, less 
 than the usual size, and delivered a bUl of these to the plaintiffs as a performance of a 
 contract before made, to deliver hogsheads of the common size ; but which previous con- 
 tract was void by the Statute of Frauds. The plaintiffs accepted those of the small size, 
 which made a valid contract ; and then would have used the whole transaction as evi- 
 dence to show a previous contract to deliver those of the common size. But, per Our. : 
 " It is not competent, in our opinion, for the plaintiflfe to accept this acknowledgment of 
 the defendants, by a specification of twenty-five hogsheads ready for the plaintifib, as the 
 
SEC. X.] Written Admissions. 335 
 
 performance of the bargain acknowledged on their part ; and then to use this evidence as 
 the means of proving another and different contract. Where you rely upon a confession, 
 you must take it altogether ; and the rule is peculiarly necessary to be observed where the 
 confession is in a form of evidence essential to the establishment of the contract to be 
 proved, as in this case. Whitwell v. Wyer, 11 Mass. Rep. 6, 16. The defendant admit- 
 ted his contract with the plaintiff's intestate, but said it was in writing (a specialty). The 
 action being assumpsit, it was correctly put to the jury, that if they believed the latter 
 part of the confession, they must find for the defendant, for assumpsit would not lie. 
 HoUey's Adm'r v. Christopher, 8 Monroe, 16. In assumpsit for the freight of certain 
 tobacco shipped by the defendants in the plaintiff's vessel, which tobacco the defendants 
 purchased of S. C, to show the quantity, the plaintiffs proved that T., one of' the defend- 
 ants, said they had forty hogsheads of S. C, which were shipped in the plaintiffs' vessel. 
 The defendants offered to show that T. said, at the same time, that the tobacco was dam- 
 aged in the transportation. This being overruled, the judgment was for that reason 
 reversed on appeal. Turner v. Jenkins, 1 Harr. & Qill, 161. In assumpsit, where the 
 plaintiff relies on the defendant's acknowledgment to take his case out of the Statute of 
 Limitations, as if the defendant use words implying that the debt is due, but says he don't 
 consider himself indebted because the plaintiff was negligent in not collectSng certain 
 securities, and ought not to look to him, the whole must be taken together, and the plain- 
 tiff cannot disprove any part, as that thfe debt is due because there was no neglect, &c. 
 Oliver v. Gray, 1 Har. & Qill, 204, 319, 230. See also poet, notes. 
 
 The rule applies to vrritten as well as oral admissions ; a very common illustration of 
 which is found in the accounts of the party. These being used as evidence against him, 
 are also evidence for him. Jones v. Jones, 4 Hen. & Munf. 447. Thus, where on a bill 
 filed by one party against the administrators of another for discovery and accoimt, a bal- 
 ance was allowed against the intestate oh credits taken from his books, without allowing 
 the debits on the same books, for this reason and others, the decree was reversed; 
 and the reversal sustained in the Court of Appeals, who say both sides, credit and debit, 
 ' should have been taken together. Waggotier v. Gray's Adm'rs, 2 Hen. & Munf. 
 *409 603. Again : in assumpsit, the plaintiff had, before suit, delivered a *large account, 
 but on the trial proved only one item, £230. The defendant selected one item of 
 credit in the same account exceeding the £230, relying on it as an admission. The jury, 
 under the direction of the court, that by relying on the credit side the defendant must be 
 holden to admit all the debit sid^, found for the plaintiff; and, on motion for a new 
 trial, the court held that a defendant, being called on to render an account in order to 
 sustain a plaintiff's demand, which the latter is obliged to rely on in order to charge the 
 former, is entitled to be discharged by it. They Saidj if a defendant is called on to state 
 whether a particular sum of money be due, and he state it was to be paid on a condition 
 not performed, you must take the acknowledgment aJI together. An account is composed 
 of items, and they are placed on the debit and credit side. If the defendant produce the 
 account, you can no more take the items on the credit side to charge him, and reject 
 the debits, than, in the case supposed, you can take the acknowledgment of what was 
 agreed to be paid, and reject what he states with respect to the condition. New trial 
 denied. Morris v. Hurst, 1 Wash. C. C. Rep. 483: Again : in assumpsit, the defendants pro- 
 duced an account, in the handwriting of one of the plaintiflB, crediting the defendants 
 vrith $663.37, December, 1817. This was introduced to show a claim of so much in their 
 favor. But the same account contained a charge against them, under date of February, 
 1817, of a balance of $4,405.30, in the plaintifife' favor. Held, that the whole must be 
 taken together ; and so was evidence in favor of the plaintiffe. But it was said the 
 defendants might, notwithstanding, impeach the account, so far as it was in favor of 
 the plaintiffi. But they did not do it. Walden v. Sherburne, 15 John. Jlep. 409, 413, 
 424 ; Turner v. Child, 1 Lev. 134, S. P., per Taylor, Oh. J. Again : in an action on an 
 open account current, originating in New Tork, for cash lent, stock sold, and the balance 
 of an interest account upon the items, the defendant relied on this account to show his 
 credits, and the jury found for the plaintiffs with the interest, though an offer by the 
 plaintiffs to prove that interest was allowable in New Tork on such an account, had been 
 overruled by the court, on the defendant's objection. The defendant appealed ; but th« 
 judgment was affirmed on the ground that, as the defendant relied on a document pro- 
 duced by the plaintiff, it must be taken all together ; and that would warrant the allow- 
 ance of interest. Wakeman v. Marquand et al., 5 Mart. Lou. Rep. (N. S.) 365, 273. " The 
 books of merchants cannot be given in evidence in their favor ; they are good evidence 
 against them ; bnt if used as evidence, the whole must be taken together." Civil Code 
 of Louisiana, 2244. The rule was applied veiy liberally to a sheriff's return, that he had 
 levied of the defendant's goods and chattels $52.03 ; but paid for rent due from the 
 defendant to M. N., and costs demanded by her attorney, $33.87 1-2 ; and that $6.40 had 
 been recovered of him by D. & H., on account of selling the goods. In a suit by the 
 plaintiff in the execution against the sheriff's administrators for the money, he relied on 
 the return ; and it was held, that the sheriff was protected by the matter in avoidance ; 
 and the balance only should be recovered. Griffith v. Ketchum's Adm'rs, 12 John. 879. 
 So in ejectment, a writing introduced by the lessor of the plaintiff, signed by the defend- 
 
336 jidmissions by JParties. [ch. tiii. 
 
 ant, admitting the title of the lessor, but stating that the defendant had been in posses- 
 sion seven years under color of title (the North Carolina limitation), being introduced 
 by the plaintiff, was held evidence for the defendant of title by an adverse possession ; but 
 the court said it would have been otherwise if the admission had been, made before the 
 limitation had completed running ; for then it would have destroyed the chwacter of 
 the adverse possession,; ,but here it asserted a title. Doe ex dem. The Trustees of the 
 University of North Carolina v..Eoe, 3 Hawks, 370. An admission of the plaintiff's 
 account by the defendant, at the same time producing and claiming one of equal amount 
 against the plaintiff, must be taken together ; and is, therefore, per se, no admission of the 
 plaintiff's claim, even to take it out of the Statute of Limitations. Jacobs v. FarraU, 3 
 Hawks, 570. A writing admitting the survivorship of the wife, and that she is stiU alive, 
 but asserting that she has released her dower, being used to prove the former, held, that 
 it must also be taken to disprove her right of dower. Shaller v. Brand, 6 Binn, 435, 438. 
 The defendant offered to prove an extract from the plaintiff's letter, the original being 
 lost. The court would . not permit this, saying the whole letter must be given in evi- 
 dence, though the witness would swear that the extract contained everything pertinent. 
 Dennis v. Barber, 6 Serg. & Eawle, 430, 435, 436. The plaintiffs sued on bills of exchange 
 drawn on them by the defendant, and paid i for his account. The defendant interposed a 
 defense of payment; and to show this, relied on the books of the plaintiffs (produced 
 under a notice), crediting him with various sums received;, but there were also in the 
 same books countervailing charges, debits of money paid, which, however, the plaintiffs 
 could not claim under their declaration, as this went uppn the bills specially, and con- 
 tained no count for money paid. The defendant, therefore, claimed the credits in his 
 favor ; and contended that the debits could not be allowed to affect him. Washington, 
 J., said : " The principle of law is, that if the defendant is not prepared to prove credits, 
 but relies for their proof on the plaintiff !s account, the plaintiff can call on him to admit, 
 prima facie, the debits; but it is competent to the defendant to show, by evidence, that 
 the debits were not properly made. In this action the plaintiffs cannot recover on the 
 .debits, but only on the bills." But he allowed that the credits might be considered as 
 payment applied to the debits, within the rule that payments may be applied by the 
 creditor, if not directed by the debtor at the time ; and so far the credits be rendered 
 unavailable to the defendant. , Bell et al. v. Davidson, 3 Wash. C. C. Rep. 338. 
 
 The cases are by no means uniform upon the extent to which one's book becomes evi- 
 dence for him when.in.trpdu.c,ed,by the opposi/te party,,some of them .taking the whole of 
 the countervailing debits, or statements ,in pfher parts of the books, and others narrow- 
 ing the evidence down to the single charge. In one case, the defendant claimed the 
 benefit of a credit of ten cords, pf wood at $3.50, given in the plaintiff's testator's day- 
 book ; and held, that he could not have this benefit without all the charges in the hand- 
 writing of the testator against the defendant contained in the same day-book, also going 
 to the jury as evidence to prove the charges,, though at other times than the date of the 
 credit. King v. Maddux's Ex'r, 7 Har, & John. 467. In another case, in an action of 
 assumpsit, commenced in May, 1813, fpr work and labor, the defendant produced his day- 
 book on notice, by which the labor was credited to the plaintiff, on different pages, before 
 suit brought. The defendant then insisted on reading,, an entry on a different page of 
 the same book, made in November of the same year, 1813. But this was disallowed, on the 
 ground that the entry was after suit brought ; though the court admitted that ordinarily 
 any entry might be read by a defendant under these circumstances necessarily connected 
 with those used by the plaintiff, which Ms book contained at the time when the suit was 
 brought. Withers v. Gillespy, 7 Serg. & Rawle, 10. Otherwise, it seems, if the plaintiff 
 merely inspects the books, without using them in evidence. Id. In another case, where 
 the plaintiff, read an entry from the defendant's day-book, the latter then insisted on 
 reading other .entries from the same beok, in other parts, and not connected with the one 
 read. Held inadmissible, though Abbott, Ch. 3., said he was entitled to have the whole 
 of the particular entry read. Catt v. Howard, 3 Stark. Eep. 8. And see Pike v. Dyke, 
 supra, cited from 3 Greenl. 313, 316, 317. 
 
 (In Train v. Brown (3i How. Pr. 93), an action brought for the outfit and supplies furn- 
 ished by plaintiff for the bark Valetta, plaintiff's books being called for and produced, the 
 defendant was allowed to ask a witness, called by himself, who had previously seen a 
 book or books of plaintiff, this question : " Against whom was the account made out 1" it 
 being alleged that the goods were originally charged to another party. The general rule 
 undoubtedly is, that if a party makes the books of his adversary evidence in his favor to 
 prove his credits, he is bound to take the whole account together, and to admit the whole 
 of the debit side of the account ; and the rule is the same whether the books are produced 
 by the plaintiff or the defendant (Bigelow v. Sanders, 32 Barb. 147) ; though account 
 bopks are not evidence of items charged as cash lent. Low v. Payne, 4 Comst. 347. A 
 party cannot introduce his books for a specified purpose, so as to prevent the adverse party 
 from using them to prove other matters. Winants v. Sherman, 8 Hill, 74. Being intro- 
 duced in evidence, both parties are entitled to use them, and they cannot be withdrawn 
 from the consideration of the court or jury. Clinton v. Rowland, 24 Barb. 684. They are 
 like any declaration or admission, verbal or in writing ;, if part is used, the whole relating 
 
SBC. X.] i Written Admissions. 33T 
 
 *410 *The same principle applies to statements in writing ; if a portion of 
 
 the statement is used against a party as an admission, the counsel 
 
 for the party may insist on having the whole read. If a part of an answer 
 
 in chancery is read in evidence, the other party is entitled to have the 
 
 whole read;(l) -and if, on exceptions taken, a second answer has 
 
 *411 been put in, the,*defendant may insist on having that also read, to 
 
 explain what he swore in his first answer. (2) If a defendant makes 
 
 out a written statement of what he considers to be the plaintiflf's claim 
 
 upon him, and on the same paper draws out a counterclaim on his own 
 
 part ; if the plaintiff seeks to make use of the statement as evidence against 
 
 the defendant, the latter is entitled to have the counterclaim also laid 
 
 before the jury. (3) 
 
 But although the whole of the document should be laid before the jury, 
 it will be presently seen, that it by no means follows, that they are bound 
 to give the same degree of weight to every portion of it. (4) 
 
 to the same matter is admissible. Pendleton v. Weed, 17 N. Y. Kepr 72. If the plaintiff 
 establish his demand by introducing his books in evidence, and the defendant uses them 
 to prove certain items in his &vor, ^aintiff is at liberty to prove his whole account &om 
 the books. Dewey v. Hotchkiss, 30 N. Y. 497. A bank holding a note nearly due, 
 received a check of one of its customers, agreeing to apply it, if good, in payment of the 
 note when due ; on the day the note became due, the drawer of the check had no money 
 to liis credit in the bank ; soon after his account became good, and the bank charged the 
 check in his account, and credited the note as paid ; and the transaction was held to ope- 
 rate as an absolute payment of the note. Pratt v. Foote, 5 Seld. 463. And such entries 
 may be given in evidence as proof of payment against a subsequent holder receiving the 
 note after it became due. Jermain v. Denniston, 3 Seld. 276. The note in this case had 
 also been charged in the passbook of the maker.) 
 
 We have seen in Withers v. Qillespy (sitpras), that charges, made after suit brought 
 shall not be received. It has also been held, that where one party is bound in duty to 
 furnish an account, the credits may be used against him without regard to the debits. 
 Thus, where a partner called on to account, did so, but made a countervailing charge in the 
 account, of $250, as stock brought into the partnership by him, held that this was prop- 
 erly rejected, there being no proof beside the account. Smith v. Harrathy, 5 Mart. Lou. 
 Rep. (N. S.) 319. So where the administrator of an executor being ordered by chancery 
 to account with legatees/ produced the account-books of his intestate, and insisted that 
 the whole should be taken together debits as well as credits ; and the commissioner 
 took the account on this principle, reporting a balance in his favor, which was confirmed 
 on appeal. This was disallowed on further appeal, and the court said the rule that where 
 a party relies on an account furnished by his adversary, he is bound to take the whole 
 together, does not apply to an account furnished by an executor or other trustee. They 
 are bound to furnish the cestui que trtist with- the means of charging them ; and must 
 discharge themselves by vouchers, or means independent of the account itself. Robert- 
 son, v. Archer, Adm'r, 5 Band. 319. 
 
 (1) By Holt, C. J., in Lynch v. Clarke, 3 Salk. 153 ; Bath (Earl) v. Battersea, 5 Mod. 9 ; 
 Gilb. Ev. 44. The whole of a recital in a deed mvist be taken together. 2 Ventr. 171 ; 
 1 Coni, Dig. tit. Evidence, b. 5. . 
 
 (3) R. V. Carr, 1 Sid. 418 ; B. N. P. 237 . Gilb. Ev. 50. 
 
 (3) Randle v. Blackburn, 5 Taunt. 245. 
 
 (4) Note 119. — It was offered by the plaintiff to prove that, after he commenced his 
 suit, the defendant admitted he was tenant of A. This was objected to on the general 
 principle that evidence of anything that happens after the suit is not admissible. But, 
 per M'Kean, Ch. J, : "I recollect but one case in the books upon this point ; and that is, 
 that an acknowledgment of a debt after suit, takes it out of the Statute of Limitations. 
 Let the witness proceed." The reply of the plaintiff's counsel was, that the acknowl- 
 edgment proposed was of a fact existing premoiis to the suit. Morris's Lessee v. Van- 
 deren, 1 Dall. 64, 65. And see Gosling v. Birnie, 1 Mood. & Malk. 531. The defendant 
 on being arrested, expressed his surprise that the plaintiff's debt had not been paid before 
 by P., and promised to meet the plaintiff and settle the claim if he would give him time. 
 Held sufficient to take the case out of the Statute of Limitations, Sluby v. Champlin, 4 
 John. Rep. 461. In assumpsit on an account stated, the plaintiff acknowledged, after suit 
 brought, that he had reviewed his accounts with the defendant, to whom a balance was 
 found due, for which he gave a note. Held admissible evidence; and that the note 
 was admissible. This was not evidence of a set-off; but proof of an admission, and acta 
 showing that nothing was ever due to the plaintijET. Marshall v. Sheridan^ 10 Serg. & 
 Bawle, 268. See not« 145. 
 
 Vol. L 43 
 
338 Admissions by JParties. [ch. tiu. 
 
 Domiments referred to. If a person, in making an admission against his 
 own interest, refers to a written paper, without which the admission is not 
 complete, the contents of the paper ought to be shown, before the state- 
 ment can be used as evidence against the party. (1) Thus, where a letter, 
 written by the deifendant, was put in by the plaintiff, it was held, that the 
 defendant had a right to have read what had been written on the back by 
 the plaintiff. (2) 
 
 (Statements made by a party after Buit brought, or post litem DWtam, are received with 
 great caution. Wetmore v. Mel], 1 Ohio State R. 26 ; Cole v. Cole, 33 Maine, 370. And 
 there is a wide distinction between an admission of a fact and an admission made under 
 a misapprehension of its extent. The admission is admissible as proof of the truth, and 
 not on the ground that it concludes or estops the party making it. Wakefield v. Cross- 
 man, 35 Vt. 298. Hence he may give testimony explaining it, or showing that the admisr 
 •ion was not true. Pecker v. Hoit, 15 N. Hamp. 143 ; Duffield v. Cross, 13 111. 397 ; 
 Stephens v. Vrooman, 18 Barb. 350.) 
 
 (1) See by Lord Kenyon,C. J., in Jacob V. Lindsay, 1 East, 463. By Lord Ellenborough, 
 C. J., in Smith v. Ypung, 1 Campb. 439. See, also, Falconer v. Hanson (1 Campb. 171), 
 where- a log-book was referred to in a deposition of a witness examined upon interroga- 
 tories. 
 
 (2) Dagleish v. Dodd, 5 C. & P. 238. See, also, Richards v. Frankum (9 C. & P. 221), as 
 ■to an indorsement upon a promissory note. 
 
 Note 120. — The following cases should be compared with what is laid down in the text : 
 that where a confession refers to a written paper, such confession is not complete, and 
 cannot be received without proof of the paper. In the first, it was held that the declara- 
 tion of the party referring to the books, adopted and made them evidence against liim, 
 as a part of the confession. The action was on notes against A. and others, to fix them as 
 partners, and the plaintiff" proved A.'s declaration denying that he was a partner, in 
 respect to the notes in question ; but saying he had at one time been interested, and 
 received a dividend in 1815, when his interest ceased ; that the dividend was entered in 
 the books on that day. The plaintiff then offered the books. Held admissible, and that 
 A. had made them a part of his confession. The court said that the part of the declara- 
 tion denying himself to be a partner might be disbelieved by the jury on testimony 
 aUunde. Beside, the book might show a connection of such a nature that, if the plaintiffi 
 had no notice of the dissolution, A. might still be liable. Thommon v. Ealbach, 12 Serg. 
 &, Rawle, 338 to 340. 
 
 In the following case the principle in the text was held to mean that the confession 
 must, in the first instance and on its face, show the reference to be a writing ; if not, the 
 party cannot himself explain the reference to mean a writing, and then call for its pro- 
 duction. The plaintiff, claiming premises under M., showed the defendant's confession 
 that he held under M. by lease, and rested. The defendant proved that the lease was in 
 writing, and then insisted that the plaintiff should produce it, in order to show that it 
 had expired. Held, that this lay with the defendant ; and this not being done, it should 
 be intended from the omission that it had expired. Jackson ex dem. Witherell v. Jones, 
 9 Cowen's Bep. 183. 
 
 A confession was in one case thus allowed to be connected with a writing by a very 
 loose and remote implication, to explain the equivocal word gift as used in a confession. 
 Thus, in detinue for negroes, tlie plaintiff proved that the defendant said he had given 
 them to the plaintiff's wife, who was the defendant's daughter. The court allowed the 
 defendant to show that he had made his will (whereby he had given them to his daughter) 
 on the very day when the declaration was made, in order to explain what was meant by 
 giving the negroes. Morisey v. Bunting, 1 Devereux, 8. 
 
 In one case at Nisi Prius, it was held that where a party referred to a writ in his con- 
 fession, by which he partially did away its effect against him, he was yet put to strict 
 proof of the writ. This was in Grey v. Smith and another. Sheriff, 1 Campb. Rep. 387. 
 The plaintiff, to charge the defendants with taking goods, gave in evidence a warrant 
 executed by one of the defendants, the sheriff, to his bailiff, as an admission that the 
 bailiff acted as his agent. The same warrant recited the writ, and the defendants claimed 
 ■ that the whole admission must be taken together, and the writ therefore as proved. But 
 Lord Ellenborough denied this, and said the defendants must prove the writ as a part of 
 their justification; and this although it was contended that the writ itself should be 
 •produced by the plaintiff. But the contrary has been holden, and that, even in false 
 imprisonment, proof of the defendant's admission that the plaintiff was arrested and 
 handcuffed by his order, but ho had a warrant for this, must be taken together ; and thus 
 would justify him. Rogers v. Wilson, 1 Alab. 407, 409 And see Shaller v. Brand, 6 Binn. 
 435, 438 ; Dennis v. Barber, Id. ; Griffith v. Ketchum'g Adm'rs, Id. ; Bristol v. Warner, 19 
 Conn. 7 ; Knight v. New England Worsted Co., 3 Cush. 271 ; Mims v. Sturtevant, 18 Ala. 
 (N. S.) 359. 
 
SKC. I.] Documents referred to. 339 
 
 *412 *The same rule applies to an interrogatory referring to a letter; so 
 that if the party producing the interrogatories refuse to produce the 
 letter, he must abandon the whole of the interrogatories, and not merely 
 that one which refers to the letter. (1) Where commissioners in bankruptcy 
 send for a party, and compel him to produce documents and answer ques- 
 tions, it has been ruled that secondary evidence of the documents cannot 
 be given, without proof of the examination which accompanied theii- pro- 
 duction. (2) 
 *413 *If a letter refers to other letters or papers inclosed, and refers to 
 them in such a way, that it is necessary to incorporate them with 
 the body of the letter, in order to make it intelligible, or to complete the 
 sense, the inclosures must be read with the letter. 
 
 But independent papers merely inclosed in a letter and not referred to 
 by it, are not thereby rendered admissible together with the letter. (3) 
 ' And where documents are adduced in evidence, which are referred to in an 
 examination or answer, but are entirely independent and unconnected 
 therewith, this does not render it necessary to put the examination or 
 answer also in evidence. Thus, in the case of Long v. Champion, (4) on a 
 trial of an action at law, a copy of a letter written by the plamtiff's agent, 
 and referred to by the plaintiff in his answer to a bill in chancery, and the 
 original of which letter, instead of being filed in the master's office, had^ 
 by consent of parties, been deposited for inspection with the plaintiff's 
 clerk in court in the chancery suit, was held to be admissible evidence on 
 the part of the defendant at law, without reading the answer in chancery. 
 Lord ' Tenterden, C. J., in giving thfe judgment of the court, observed: 
 *' Whether it is necessary in every instance to read an answer in chancery, 
 for the purpose of making any documents evidence which may be annexed 
 to it, we do not now decide. I should at present think it a very strong 
 proposition to say that the answer must at all events be read, though 
 having no connection with the case Ln which the documents are produced. 
 But here, at least, we think the copy in question was admissible without 
 the answer." 
 
 .But where a bill of discovery had been filed by A. against B., upon 
 
 *414 *which there had been a decree and order that B. should bring into 
 
 court all letters written by A. respecting a certain debt, it was held 
 
 (1) Wheeler v. Atkins, 5 Esp. 246. 
 
 (2) Holland v. Reeves, 7 C. & P. 36. See, also, Yates v. Camsew, 2 C. & P. 99. 
 
 Note 121 . — The proof of an admission by letter, is by proving the letter itself the same as 
 any other instrument in writing. Thus, the defendants in answer to an action against 
 them for transporting whisky, produced a letter to them from one of the plaintiffs, 
 admitting that they had converted a part of the whisky whUe on the road to their own 
 use. The body of the letter was written by one of the defendants himself, but he proved 
 that the subscription was in the plaintiff's handwriting. The court below rejected the 
 letter, because there was no subscribing witness '; and it was not shown that the plain- 
 tiff had heard the letter read or the contents explained. But this was holden erroneous. 
 The court above said a letter must be proved like any paper contract. The proof of sig- 
 nature was enough in the first instance. If there was fraud or mistake, it lies with the 
 signer then to correct it. Holmes et al. v. Ketlinger, 4 Yeates, 532. 
 
 On the trial, the defendant, to show an admission of the plaintiff, offered to prove the 
 extract of a letter from the plaintiff. The original letter was shown to be lost ; and 
 the witness would swear that it was the only part of the letter relating to the matter in 
 controversy. The plaintiff was a merchant, and the matter in dispute was a mercantile 
 transaction. The court said, the plaintiff being a merchant should be presumed to keep 
 a letter-book ; and due notice should have been given to him to produce it. That would 
 have been the next best evidence. The notice for that purpose being short, oral evidence 
 could not be given ; and an extract of a letter cajinot be received. The whole must be 
 regularly proved, or no part is evidence. Dennis v. Barber. 6 Serg. & Rawle, 420,425,426. 
 
 An account-book containing; entries by A. & B., may go to the jury aS evidence of their 
 being partners. Champlin, Ex'r v. Tilley, 3 Day, 303, 307. 
 
 (3) By Lord Kenyon, C. J., in Johnson v. Gilson, 4 Esp. 21. 
 
 (4) 2 B. & Ad. 284. See, also, Sturge v. Buchanan, 10 A. & E. 605. 
 
340 Admissions by Parties. [ch, vhi. 
 
 that these letters could hot be read in an action at law brought by B. 
 against the sheriff for a false return to a fl. fa. against the goods of A., 
 without first putting in the bill and answer ;(1) for, it was said,the answer 
 might contain such a contradiction or explanatian of parts of /the letters, 
 as might wholly neutralize their effect. 
 
 Ziimits to the general rule. It is proposed now td consider what limits 
 have been imposed on the reception of a party's statement in his own favor, 
 upon the ground of its accompanying an admission made against his 
 interest. 
 
 It has been decided, that although a defendant is entitled to have the 
 whole of a particular entry in a book read, where part of it is used against 
 him, yet he cannot insist upon reading distinct entries in different parts of 
 the book. (2) Thus, where the plaintiff gave the defendant notice to pro- 
 duce a letter-book, containing copies of certain specified letters, which was 
 produced accordingly ; it was held that the defendant had no right to read, 
 in his own behalf, other letters upon the same subject, copied in the same 
 book, but not referred to in those read by the plaintiff. (3) Lord Denman, 
 C. J., in giving the judgment of the court in this case, remarked, that the 
 book contained " series of copies of letters written from time to time — in 
 principle exactly the same thing as if they had been kept in a counting- 
 house on file. That the rest of the correspondence may throw light upon 
 these parts of it, is true ; but the light may be a false one. The plaintiff is 
 not bound to know whether it would or not ; nor whether any other state- 
 ments were made as they appear in the book, or, if made, were true."(4) 
 Upon the same principle, where attempts have been made to put in evidence 
 bundles of proceedings in bankruptcy, or all the entries in corporation 
 books, merely because one paper or entry has been read by the opposite 
 party, they have always been rejected. (5) 
 
 Conversations. The same principle applies to admissions made in con- 
 *415 versation ; although *it was at one time laid down, and by very high 
 
 authority, that if part of a conversation was given in evidence against 
 a party as an admission, he was entitled to have the whole conversation 
 repeated. In the Queen's Case, (6) Abbott, C. J., in delivering the opinion 
 of the majority of the judges, that if a witness was asked in cross-examina- 
 tion as to some statement made by him in a conversation with a third party, 
 he could not be re-examined as to the whole of that conversation, took 
 occasion to remark : " I distinguish between a conversation which a wit- 
 ness may have had with a party to the srftt, whether criminal or civil, and 
 a conversation with a third person. The conversations of a party to the 
 suit, relative to the subject matter of the suit, are, in themselves, evidence 
 against him in the suit, and if a counsel chooses to ask a witness as to any- 
 thing which may have been said 'by an adverse party, the counsel for that 
 party has a right to lay before the court the whole which was said by him 
 in the same conversation, not only so much as may explain or qualify the 
 
 (1) Hewitt V. Piggot, 5 C. & P. 75, 77. See, also, Ludlow (Mayor) v. Charlton, 9 C. & P. 
 243. And see Temperley v. Scott (5 C. ti P. 341), as to reading cross-interrogatorieB which 
 are part of a case. 
 
 (2) Catt V. Howard, 8 Stark. K. 5. 
 
 (8) Sturge v. Buchanan, 10 A. & E. 508. 
 
 (4) Id. 605. 
 
 (5) Id. 001. 
 
 The books of a bank are not evidence in its favor, or in favor of its receiver, in a suit 
 brought to recover a balance due on account. White v. Ambler, 4 Seld. 170. The person 
 who made the entries should be called (Monroe v. Culver, 2 Hill, 535) ; unless he be dead 
 or insane. Brewster v. Doane, Id., 557 ; Union Bank v. Knapp, 3 Pick. 97. The pass- 
 book is evidence against the bank. Jerraain v. Dennistou, 3 Seld. 276. 
 
 (6) 3 B. & B. 397, 298. 
 
SEC. X.] Conversations. 341 
 
 matter introduced upon the previous examination, but even matter not 
 properly connected with the part introduced upon the previous examina- 
 tion, provided only that it relate to the subject matter of the suit ; because 
 it would not be just to take part of a conversation as evidence against a 
 party, without giving to the party at the same time, the benefit of the entire 
 residue of what he said on the same occasion." 
 
 This doctrine was much discussed in the CoUrt of Queen's Bench, in the 
 case of Prince v. Samo.(l) That was an action for malicious arrest, on a 
 false suggestion that money was lent by the defendant to plaintiff, when, 
 in fact it had been given. The plaintiff called his attorney as a witness, 
 who happened to have been present at the trial of a pros^pution for perjury, 
 instituted by the plaintiff against a witness in the action wherein he had 
 been arrested. The defendant's counsel inquired of him, in cross-examina- . 
 tion, whether the plaintiff had not, on the trial for perjury, stated, that he 
 himself had been insolvent repeatedly and remanded by the court. This 
 question was not objected to. On his re-examination the same witness was 
 asked, whether the plaintiff had not also on that occasion, given an account 
 of the circumstances out of which the arrest had ariseh ; and what that 
 account was, for the purpose of laying before the jury proof that the arrest 
 was without cause and malicious. This question, expressly confined to 
 tha,t purpose, was, whether the plaintiff did not say, in the course of his 
 examination, that the money was given and not lent ? To this question the 
 defendant's counsel objected, upon the ground that the circumstance of 
 the defendant having proved one detached expression that fell from the 
 plaintiff when a witness, did not make the whole of what he then 
 '''416 said evidence in his favor. Lord Denman, *C. J., at the trial was of 
 opinion, that the witness might be asked as to everything said by the 
 plaintiff, when he appeared on the trial of the indictment, that could in any 
 way qualify or explain the statement as to which he had been cross-exam- 
 ined ; but that he had no right to add any independent history of trans- 
 actions wholly unconnected with it. The court afterwards held that the 
 line had been correctly drawn by his Lordship at the trial. 
 
 In this case, the dictum of Abbott, C J., in the Queen's Case, just 
 referred to, was cited, and Lord Denham, C. J., in giving the judgment of 
 the court, observed, with regard to that dictum : " We forbear from enter- 
 ing into a detailed examination of the doctrine there laid down. We have 
 considered it repeatedly with all the difiidence inspired by such an author- 
 ity, but we cannot assent to it. We will merely observe, that it was not 
 introduced as an answer to any question proposed by the House of 
 Lords, (^) and may, therefore, be strictly regarded as extra-judicial ; that it 
 was not necessary, as a reason for the answer to the question that was 
 proposed; that it was not in terms adopted by Lord Eldon, C, or any 
 other of the judges who concurred ; that it was expressly denied by Lords 
 Redesdale and Wynford ; and that it does not rest on any previous author- 
 ity. We ought to add that, in our opinion, the reason of the thing would 
 rather go to exclude the statements of a party making declarations which 
 cannot be disinterested." (3) 
 
 Upon a review, therefore, of the authorities, the correct rule seems to be 
 as follows : That where a statement, forming a part of a conversation, is 
 given in evidence, whatever was said by the same person in the same con- 
 versation, that would in any way qualify or explain that statement, is also 
 admissible ; but detached and independent statements, in no way connected 
 
 (1) 7 A. &E.627, 
 
 (2) The question had reference to the re-examination of a witness for the purpose of 
 letting in the whole of what he himsolf had stated in a conversation. See 3 B. & B. 394 
 296, and mmra. 
 
 (3) 7 A. & E. 634. 
 
342 Admissions hy Parties. [ch. viii. 
 
 ■with the statement given in evidence, are not admissible, and that there is 
 no difference in this respect between statements made in conversation by a 
 party to the suit, and those made by a third party. (1) 
 
 Correspondence by Letters. It was held in one case, that letters -written 
 by a party are evidence against him without producing copies of those to 
 ■which such are answers; (2) as the adverse party may himself produce the 
 original letters to which those put in are answers, if he thinks them neces- 
 sary to explain the transaction. (3) But in a late case, -where it -was pro- 
 posed on the part of the plaintiff to give in evidence a letter written hj the 
 defendant's attorney, which purported to be an answer to a letter written 
 to him by the plaintiff's attorney. Pollock, C. B., ruled, that if the 
 *417 plaintiff's counsel put *in the first-mentioned letter, he ought also 
 to call for and put in the one to which it was an answer, and not 
 leave it to the defendant to put in the letter of plaintiff's attorney as his 
 evidence. (4) 
 
 A defendant, who puts in evidence a correspondence, consisting of several 
 letters between himself and the plaintiff, has a right to give in evidence one 
 written by him to the plaintiff in reply to the plaintiff's last letter, as form- 
 ing part of the correspondence. (5) 
 
 Writ containing return. "Where, in an action against the sheriff for an 
 e8cape,(6) a copy of the writ is given in evidence by the plaintiff, and the 
 document contains also a copy of the sheriff's return, the defendant is not 
 entitled to have the copy of the return read as part of the document, as the 
 -writ is perfectly distinct from the return. 
 
 Other parts of Judicial proceedings. When an answer in chancery is 
 offered in evidence, as an admission of party upon oath, or for the purpose 
 of contradicting a witness, the interrogatory part of the bill must also be 
 read ; and if the party against whom the answer is produced insists upon 
 it, the narrative part of the bill also must be read. (7) 
 
 Where the whole of admissions are received, it often happens that they 
 contain statements favorable to the party against whom the admissions are 
 used, and in many instances they are found to contain hearsay evidence of 
 facts. The principal ground for receiving the whole admission appears to 
 be, that, by comparison of the several parts with each other, the true mean- 
 ing and extent of the admission may be more clearly understood. On this 
 ground, there does not appear to be any sufficient reasoil why those parts of 
 the admission, in favor of the party, should be applied'to any other pUrpose 
 by the jury than that of explaining the parts used against him. 
 
 But although the princpal ground upon which admissions are received in 
 evidence is, because it may be presumed that a person would not speak or 
 make a statement, if not true, against his own interest, and though the rea- 
 son for receiving the whole admission is only for the purpose of ascertaining 
 whether the person has in fact spoken against his own interest, and, if so, to 
 -\yhat extent, and -with what qualifications : yet, it may be collected from 
 authorities, that the effect of receiving the whole admission amounts 
 *418 to something more. The using in evidence of an admission of *the 
 adverse party, seems to have been considered a waiver of any objec- 
 
 (1) Rouse V. Whited., 25 N. Y. 170, in Court of Appeals, adopts the rule as here laid 
 down. 
 
 (3) Lord Barrymore v. Taylor, 1 Esp. 826. 
 (8) By Lord Kenyon, C. J., Id. 
 
 (4) Watson v. Moore, 1 C. & Kir. 636. 
 
 (5) Roe V. Day, 7 C. & P. 705. 
 
 (6) Adey v. Bridges, 2 Stark. K. 189. 
 
 (7) PennoU v. Meyer, 2 Moo. & P.. 98 ; S. C, 8 C. & P. 470. In general, an answer to a 
 question cannot be read witliout showing the question to which it relates. R. v. Picton, 
 30 How. St. Tr. 466. 
 
BBC. X.] Gorre^ondedce. 343 
 
 tion to his testimony as to all matters contained in it. The presumption or 
 probability that those portions of a party's statement ■which are against his 
 mterest are true, is supposed to give credit to other parts of the same state- 
 ment, with respect to which there is no such presumption, but perhaps a 
 contrary presumption. A statement, therefore received for the purpose of 
 proving facts therein stated by him against his interest, is not to be excluded 
 with respect to other facts stated which are in his favor. (1) It is, however, 
 to be understood, that the several parts of a statement are not necessarily, 
 entitled to equal credit; the jury may believe one, and reject the other. (2) 
 
 (1) See Beckham v. Osborne, 6 M. & G. 771. 
 ■ (2) See by Lord Mansfield, C. J., in Berinan v. Woodbridge, 2 Doug. 788. See also.B. 
 V. Clewes, 4 C. & P. 221. 
 
 Note 132. — We intimated, in the introduction to note 118, that every part of the con- 
 fession is not always entitled to equal weight. This will be found fully illustrated in the 
 cases which we now proceed to state, and still more strikingly when we come to speak of 
 confessions in criminal cases, post, notes. The j ary are not always bound to give implicit 
 faith to the whole or any part of the confession (Smith v. Hunt, 1 M'Cord, 449, and tha 
 cases there cited) ; and said it may be weighed by the character, interest and appearance 
 of the party confessing. Id. And where the party, to substantiate a credit in his favor, 
 produces an account made aut by the opposite party, though he renders it evidence in tha 
 first instance to prove the debits against himself in the same account, yet this is not con- 
 clusive, and he will still be at liberty to disprove the debits (Walden v. Sherburne, 15 
 Jolin. Bep. 409 ; Turner v. Child, 1 Dev. 134, S, P.) ; or impeach them by showing them 
 erroneous on their face. Jones v. Jones, 4 Hen. & Munf. 447. And where, in an action 
 for the price of one-half of a steamboat sold, the defendant admitted he purchased, but 
 said he had paid for it, the plaintiff was allowed to disprove the latter branch of the con- 
 fession by circumstances ; and the jury thinking it was overcome, the court refused to 
 disturb the verdict. And per Onr. : " Confessions must be taken together ; but when 
 extra-judicial, as in this case, the weight of evidence, by which they may be rebutted, 
 depends on all the circumstances of the case, as disclosed by testimony." Quick v. John- 
 son, 6 Mart. Lou. Rep. (N. S.) 532, 583. And see Thommon v. Kalbach, 12 Serg. & Rawle, , 
 238, 240. So, where the evidence in assumpsit for money lent, was that the defendant . 
 «aid, " I borrowed the money, but I paid it -" it was put to the jury that the confessiotti 
 must be received all together ; but they were not bound to credit the assertion of pay- 
 ment ; and they found for tlie plaintiff, owing to some slight evidence which tended to> 
 repel the assertion of payment. Newman v. Bradley, 1 DalT. 240. In an action for wages;, 
 as mate of a vessel against the master, the latter said he was captain, but never engaged, 
 the plaintifl^ who was employed by the owner. Shippen, president, told the jury they 
 must take the whble together, unless the part in his favor was inconsistent or improbable:. 
 The defendant had a right to choose his mate, though employed by the owner ; and th«i 
 mate had a three-fold remedy ; one against the master, the same as a common sailor had ;: 
 and gave the opinion of the court, that if the plaintiff served with the defendant's per- 
 mission, he was liable. Verdict for plaintiff. Parrel v. M'Clea, Id. 882. In assumpsit,, 
 the plaintiff proved that he presented his account to the defendant, who said, " It is just,, 
 but I paid it by a man in Petersburgh ; and had I time I could prove it." Per Cur. ;. 
 " The rule is, that a confession shall be taken all together ; but if there are circumstancesn 
 mentioned in the confession, which when examined into, disprove the matter alleged ini 
 discharge, or where that matter can be disproved, the jury are to reject it, and go upon, 
 the other part of the confession only ; as where he says the account is just, but I paid it 
 before such persons ; and they know nothing of the payment ; or at such time and plta:e„ 
 and it be proved that at that time he was not at the place, but at another, far distant ; orr 
 if he says the account is just, but I will prove it paid if I have time ; and he is allowed 
 that time, and called upon to make tliat proof, and does not ; in such and the like cases,, 
 the matter in discharge will be rejected " Verdict for plaintiff. Barnes, Ex'r of Kay v. 
 Kelley, 2 Haywood, 45. In stating an account, the creditor charged (inter alia) $150 for. 
 a wagon, which was the only item proved, and made the balance due to him $84, after- 
 giving several credits. He at the time of stating the account, admitted that the wagon- 
 had been paid for, which, if he had not been allowed his other charges, would have made 
 a balance the other way. The jury considered the written statement and confession all 
 together, and discredited the latter, allowing the balance as struck. Held well. Th» 
 court said the jury must judge what credit is due to any part of a statement, written op- 
 oral. Turner v. Child, 1 Dev. 133, 134. The defendant confessed he had committed ik. 
 Tiomicide by, shooting at the vital parts of a negro, declaring at the time he intended to 
 hit his legs ; but other proof showed him within ten feet of the negro when he shot, so- 
 that he might have hit his legs if he had chosen. In trespass by the owner of the negro, 
 held that the jury might reject the latter pslrt of the confession jand act on the first, 
 Arthui v. WeUs, 2 Bep. Const. Court, S. C. 314. 
 
344 Admissions hy Parties, [ch. viir. 
 
 *419 *In Smith v. Blandy,(l) in an action for goods sold and delirered, 
 one of the plaintiff's witnesses stated, upon cross-examination, he 
 had heard the plaintiff say, that the goods were sold under a written con- 
 tract, which the plaintiff at the time showed the witness ; a broker's note 
 was then produced by the plaintiff's counsel, which the witness said was 
 the paper spoken of. It was objected, that the broker's note ought not 
 to be received as evidence of the contract, unless the broker was 
 *420 called to prove it. But *the objection was overruled, and it was held 
 by Best, C. J.,' that the whole of what a party says at the same time 
 must be given in evidence, though what he says in his favor must not on 
 that account be taken as true, but must be left, with all the circumstances, 
 for the jury to consider whether they believe it or not. And in Randle v. 
 Blackburn, (2) it was held, that where a person admitted a claim, but at the 
 same time set up a counterclaim, the statement of the counterclaim was 
 admissible to prove not only its existence but also its truth and correctness. 
 
 Answer in chancery. Where in an action by an executflr for money lent 
 by his testatrix, to which the defendant had pleaded the Statute of Limita- 
 ;tions,(3) it was proved that within six years beforg the commencement of 
 the suit the plaintiff filed a bill of discovery against the defendant, and the 
 latter in his answer admitted the payment by him to the testatrix of half- 
 yearly payments down to a period within six years ; but alleged, that they 
 were paid, not as interest upon a debt, but by way of security ; it was held, 
 that the jury were at liberty to reject the latter part of the statement, 
 
 On a reference to take an account, the defendant claimed to have allowed to him cred- 
 its for large disbursements contained in an account produced against him by liis adver- 
 sary. But the account did not say to whom nor for what the payments were made, nor 
 did it give particulars of time ; several items were discredited, and one had been allowed 
 in another and distinct account. Chancellor Kent, on hearing exceptions to the master's 
 report, said: "There is no doubt of the general rule, -that when one party exhibits a 
 paper in proof to charge his opponent, his opponent is entitled to use it in his discharge. 
 But it does not follow that each part is entitled to the same credit. The charge may bo 
 BO clear and specific as to be conclusive, wlrile the discharge is so loose and defective as to 
 deserve no credit. We have seen that those discharges are inaccurate in some instances ; 
 that they have no precision or certainty as to place or circumstance, th»t we have evidence 
 of the allowance of part on other proof, and of the positive injustice of other parts ; and 
 we are justified and bound, upon all sound principles, to reject the whole." Method. Ep. 
 Church et al. v. Jaques et al., 3 John. Ch. Rep. 115 to 117. 
 
 Though, where a confession or declaration is given in evidence, a court and jury may, 
 on suificient ground, believe part and disbelieve another part, yet such parts must be dis- 
 tinct and relate to different matters or facts, as, " I acknowledge that Ihorrmoed tltemoney, 
 but I repaid it." "Whereas, a negro saying, " I was manumitted," is a diflerent case. This 
 cannot be used to show that he was once a slave, and rejected when invoked to show that 
 lie had become free. Fox v. Lambson, 3 Halst. 255, 256, 257. 
 
 (When an account is presented to a party, containing items on both sides, and showing 
 a balance against him, and he answers, " It is correct, but I have an offset ;" this is suffi- 
 cient to authorize a verdict for the balance admitted to be due, no other evidence of the 
 set-off being given. Delamater v. Pierce, 3 Denio, 315. The whole conversation relating 
 to the admission may be given ; that which tends to discharge the party making the 
 admission, as well aJs that which tends to charge him. Dorlon v. Douglas 6 Barb 451 • 
 Coon V. The State, 13 S. & M. 246, 471 ; Duffield v. Cross, 12 111. 397 ; Roberts v Gee 15 
 Barb. 449 ; 1 Parker C. R. 11 ; Id. 241 ; 18 Barb. 250.) But the referee or jury is not bound 
 to give equal credit to every part of the conversation or declaration (Bearss v. Copley, 
 10 N. Y. R., 93) ; and it is proper for the court so to charge the jury. Barnes v. Allen, 8(1 
 iBarb. 663. 
 
 (1) Ry. & Mo. 257 ; Cray v. Halls, cited Id. ; where Abbott, C. J., left the whole of a 
 • conversation to a jury, to consider whether the facts, asserted by a party in his own favor, 
 were not true, as well as those against him. And see Remmie v. Hall, Mannins's N p' 
 .iDig. (2d ed,), 376, oit. 3 M. & G. 834. 
 
 1^(2) 5 Taunt. 255. And see Thompson v. Austen, 2 D. & R. 861 ; Fletcher v. Froggatt, 3 
 -C. & P. 569 ; Green v. Dunn, 3 Campb. 215 ; Smith v. Young, 1 Campb. 439 ; Barrymore 
 ■K.. Taylor, 1 Esp. 825 ; Com. Dig. tit. Evidence, B, 5 ; 12 Vin. Ab. tit. Evidence, A, 28- 3 
 vKentr. 171 ; Cooper v. Smith, 15 East, 108. 
 
 (3) Baildon v. Walton, 1 Exch. E. 617. 
 
BEo. X.] A» to written Documents. 345 
 
 and that the answer might be construed by them merely as admitting the 
 payment of the money, and that the appropriation of it, as interest upon 
 the debt sued upon, might be proved by other evidence. 
 
 iill in chancery. It has been seen, that if an answer in chancery is put ia 
 evidence, the whole of the- bill, if required, must also be put in ;(1) but 
 in that case the jury will be warned by the judge, that the statements in 
 the bill are not to be considered as admissions of the facts so stated ; for it 
 is notorious that allegations, not corresponding with the facts, are frequently 
 introduced into bills for the purpbse merely of eliciting the truth from the 
 other party. (2) 
 
 With respect to the case of an admission containing hearsay evidence, 
 some remarks were made on the subject in the case of Roe on the demise 
 of Pellatt agt. Ferrars,(3) where the defendant gave in evidence an answer 
 in chancery by the lessors of the plaintiff. Chambre, J., observing upon 
 the degree of positive proof which the lessors of the plaintiff had drawn from 
 the' answer in their own favor, expressed himself thus : — " It is true that 
 the answer was introduced into the cause by the defendant, on whose 
 *421 *behalf some parts of it were read: but in those parts on which the 
 lessors relied, they speak only to 'what they have heard as truth.' I 
 think that was not admissible evidence ; for it appears to me, that where 
 one party reads a part of the answer of the other party in evidence, he 
 makes the whole admissible only so far as to waive any objection to the 
 competency of the testimony of the party-making the answer, and that he 
 does not thereby admit, as evidence, all the facts which may happen to have 
 been stated by way of hearsay only, in the course of the answer to a bill 
 filed for discovery. This point, he added, does not indeed appear to have 
 been contested at the trial ; had it been contested, I should have thought 
 the court bound to send the case down for a new trial." (4) 
 
 In discussing the effect of admissions made by a party to the suit, it 
 becomes necessary in some measure to anticipate the consideration of a 
 very important rule, which requires that the best evidence shall always be 
 given. (5) A leading instance of the application of this rule is, that where 
 a writted document is in existence and accessible, it must itself be pro- 
 duced in evidence, and no secondary evidence of its contents, whether by 
 a professed copy or a verbal statement, will be admissible, unless when 
 the opposite party, having it in his possession, does not produce it after 
 notice to do so. 
 
 It must be taken, therefore, as an exception to this rule, that in some 
 cases an admission by a party to the suit, as to the contents of a written 
 instrument, may be given m evidence against the admitting' party without 
 proof of notice to produce the instrument. 
 
 Thus in Goss v. Quintonj(6) the defendant, in his examination before 
 commissioners of bankrupt, admitted having taken property belonging to 
 the bankrupt; upon cross-examination he stated that he purchased th^ 
 property under an agreement, which he produced, and a copy of the agree- 
 ment was entered as part of his answer. In an action by the assignees of 
 the bankrupt to recover tbe property in question, they put in the examina- 
 tion of the defendant to prove that he had taken the property ; and it was 
 held that they thereby made the cross-examination evidence, and that, 
 therefore, there was some evidence of the existence of the agreement, 
 without producing or accounting for the absence of the original document. 
 
 (1) Supra, p. 417. 
 
 (3). By Tindal, C. J., in Pennell v. Meyer, 2 Moo. & R. 99. 
 
 (8> 3 B. & P. 548. 
 
 (4) See also Lord Trimleston v. Kemmis, 9 CI. & Pin. 780, 784. 
 
 (5) PoH. 
 fi) 3 M. & G. 835. 
 
 OL. L *4 
 
346 Admissions by Parties, [ch. vin. 
 
 So in Bessey v. Windham,(l) which was an action of trespass against a 
 sheriff for seizing the plaintiff's goods, the plaintiff having put'in the sher- 
 iff's warrant to his officer, to prove the seizure of the goods, which warrant 
 
 recited a writ at the suit of a judgment creditor, it was held that 
 *422 *this was some evidence of the existence of the writ, so as to show 
 
 that the sheriff acted under legal authority. (2) 
 
 Verbal admissions. Where the admission has been made verbally, and 
 consequently has to be proved by oral evidence, there appears to be a differ- 
 ence of opinion upon the question whether it can be, received as evidence of 
 the contents of a written instrument. 
 
 In the following cases such evidence has been admitted : 
 
 In Doe d. Lowden v. "Watson,(3) Lord EUenborough, C. J., ruled that a 
 declai-ation, made by the lessor of the plaintiff, that he had assigned the 
 lease to a third party, was admissible evidence on the part of the defendant. 
 
 In Sewell v. Stubbs,(4) Gifford, C. J., ruled that a statement made by one 
 of the plaintiffs, as to the contents of a promissory note, was evidence on 
 behalf of the defendant. 
 
 In Earle v. Picken,(5) Park, J., ruled that a statement by the defendant, 
 as to the contents of a written agreement, were admissible on behalf of the 
 
 Elaintiff. His Lordship there said : " What a party says is evidence against 
 im.self, as an admission, whether it relate to the' contents of a written 
 agreement or to anything else." 
 
 In Newhall v. Holt, (6) the Court of Exchequer held that a parol admis- 
 sion of a debt by the defendant is evidence against him under a count for 
 an account stated, though it appears that there was a written agreeinent 
 relating to the subject matter of the goods. And Parke, B., in this case, 
 repeated the doctrine he had laid down in Earle v. Picken. 
 
 In Slatterie v. Pooley,(7) which may be considered as a leading case 
 *423 *upon this subject, the same court laid down the rule that a parol 
 admission by a party to a suit is always receivable in evidence 
 against him, although it relates to the contents of a deed or other written 
 instrument ; and even though its contents be directly in issue in the cause. 
 Parke, B., in that case observed ; " The reason why such parol statements 
 are admissible, without notice to produce or accounting for the absence of 
 the written instrument, is, that they are not open to the same objection 
 which belongs to parol evidence from other sources, where the written evi- 
 dence might have been produced ; for such evidence is excluded from the 
 
 (1) 6 Q. B. 166. 
 
 (2) See also Haynea v. Hayton, 6 L. J., K. B. (0. S.) 231, cit. 6 Q. B. 169. 
 
 (3) 2 Stark. R, 231, A. D. 1817. 
 
 (4) 1 C. & P. 73, A. D. 1824. 
 
 (5) 5 C. & P. 542, A. D. 1833. 
 
 (6) 6 M. & W. 663, A. p. 1840, T. T. 
 
 (7) 6 M. & W. 664, A. D. 1840, M. T. In Newman v. Stretch (M. & M. 338, A. D. 1839) , 
 Park, J., ruled at Nisi Prius, that the declaration of a bankrupt, that he had absented 
 himself to avoid a writ against him, was evidence, of an act of bankruptcy, without any 
 other proof of the existence of the writ. But this case seems to have turned upon tho 
 principle, that statements of a bankrupt are admissible when they are explanatory of an 
 act done; i>id6 supra. The. ruling in this case is supported by the decision in Bouch T. 
 The Great Western railway Company, 1 P. B. 51. See also Ex Parte Bamford, 15 Ves. 
 449 ; Robson v. Rolls, 9 Bing. 648. 
 
 (The parol admission of a party has been held inadmissible to prove a fact directly in 
 issue, where parol evidence is not admissible (Jameson v. Conway, 5 Oilman, 227 ; Biven» 
 V. McElroy, 6 Eng. 28 ; 33 Ala. (N. S.), 539 ; 1 8 Barb. 350) ; or where the admission involves 
 a general conclusion, as that tho suit must go against him. Crockett v. Morrison, 11 Mis. 
 3. The parol admission of a collateral fact, such as the recovery of a judgment in another 
 action, may be proved. Smith v. Palmer, 6 Cuah. 513. The plaintiff, in a suit for work 
 and labor, admits verbally that the claim has been referred to an arditrator who found 
 nothing due to plaintifl'; and thig admission may be proved. Murray v. Qregory, 5 Exch. 
 B. 468.) 
 
sBa X.] As to written Documents. 347 
 
 presumption of its untruth, arising from the very nature of the case, where 
 better evidence is withheM ; whereas, what a party himself admits to be 
 true may reasonably be presumed to be so." And Lord Abinger, C. B., 
 thongh he had not been present at the argument, said he concurred in what 
 was said by Parke, B., and stated that he had always considered it as clear 
 law, that a party's own statements were in all cases admissible against him- 
 self, whether they corroborate the contents of a written instrument or not. 
 The authority of this case has been recognized by the Court of Common 
 Pleas, in the case of Howard v. Smith, (1) where it was held that, upon the 
 issue of a tenancy in replevin, the verbal statements of the plaintiiT as to 
 the terms of his tenancy were admissible in evidence, although the tenancy 
 was created by adopting the terms of a former demise in writing. (2) 
 
 Authorities against admissibility. On the other hand, in Bloxam v. 
 Elsee,(3) Abbott, C. J., distinctly laid it down as a rule, that a witness 
 could not be asked what a party to the suit had said as to the contents 
 of deeds executed by such party, without giving him notice to produce the 
 deeds or accounting for their non-production. . And according to one report 
 of this case, his Lordship added : " I give my opinion distinctly, in order . 
 that it may be reviewed by a bill of exceptions, or in any other mode the 
 counsel for the defendant may think proper." (4) And though a motion 
 was afterwards made for a new trial upon other grounds, it does not appear 
 that this objection was renewed in the. court above. (5) This case, however, 
 was cited in Slatterie v. Pooley, and was referred to by Parke, B., in his 
 judgment ; and it must be considered to be thereby overruled. 
 
 But the principles laid down by the Court of Exchequer, in the case of 
 Slatterie v. Pooley, have since been much discussed by the judges in the 
 Irish case of Lawless v. Queall,(6) and disapproved of in rather strong 
 terms. Pennefather, C. J. observed : " The doctrine laid down in that case 
 is a most dangerous proposition ; by it a man might be deprived of an 
 estate of £10,000 per annum, derived from his ancestors through regular 
 family deeds and conveyances, by producing a witness, or by one or two 
 conspirators, who might be got to swear that they heard the defendant say 
 he had conveyed away his interest therein by deed, or had mortgaged, or 
 had otherwise incumbered it ; and thus, by the facility so given, the widest, 
 door would be opened to fraud, and a man might be stripped of his estate 
 through this invitation to fraud and dishonesty." 
 
 It would seem, however, that these observations would apply to the 
 weight due to such testimony, rather than to its admissibility. It is to be 
 observed that there is no positive law that excludes parol evidence of the 
 contents of a written instrument, except where a written instrument is 
 required by law. Such evidence, in' other cases, is excluded by one of 
 those rules which have been 'laid down by the courts as best calculated for 
 ascertaining the truth. The party against whom such evidence is given 
 may object to it, because oral testimony as to a written document is not 
 the best means of ascertaining its contents. A verbal statement of the 
 contentis of a writing may not be true. But the party who is entitled to 
 the benefit of the rule may waive it, if he thinks proper — as, for instance, 
 when he believes that the witness will state truly the contents of the doc- 
 ument. If the party were in court, by himself or his counsel, to make an 
 admission as to the contents of a document, with the contents of which 
 
 (1) 3 M. & G. 254, A. D. 184i: 
 
 (2) See also Bethell t. Blencowe, 8 M. & G. IID. and Id. 256. 
 
 (3J By. & Moo. 187 ; S. C, 1 C. & P. 558, A. D. 1825. See also Fox v. Waters, 12 A. & 
 
 "(4) By. & Moo. 188. 
 
 (5) S. C, 6 B. & C. 169. See also 1 C. & P. 565. 
 
 (6) 8 It. Law Bep. 382. 
 
348 Admissions by Parties, [gh. vni. 
 
 he must necessarily be acquainted, and upon the production of which he 
 might insist, this would amount to a waiver'^-its production, arid his 
 admission would be taken as true. If he made a Similar admission out of 
 court, but for the' purposes of the cause, it would operate in a similar man- 
 ner. Again, if it can be proved, by clear and satisfactory testimony, that 
 he has made such an admission, though not for the purposes of the cause, 
 although it may not be regarded as a waiver of the production of the doc- 
 ument, it is surely receivable, as a declaration made by him against his 
 own interest, and which, as he knows the truth, he must be presumed to 
 have made consistently with the truth. The credit or weight to be given 
 to such testimony must, of course, depend upon the circumstances of the 
 case. There is, undoubtedly, in the case of verbal declarations, always the 
 possibility of fraud or perjury on the part of the witness who repeats 
 the. declaration. There is the same possibility in every instance where a 
 ■witness speaks to any fact that he professes to have seen. Such testimony 
 is not rejected, but is to be sifted by the best means the adverse party 
 may have in his power. In the case of verbal declarations there is also a 
 possibility — and often a probability — of misapprehension or of inac- 
 *425 curate *recollection on the part of the witness, and the judge will 
 always point out this to the jury. 
 Parke, B., has several times observed that too great weight ought not to 
 be attached to evidence of what a party has been supposed to have said ;(li 
 and the same learned judge observed, in the case of Slatterie v. Pooley :(2) 
 "The weight and value of such testimony is quite another question; that 
 will vary according to the circumstances, and it may, in some cases, be quite 
 unsatisfactory to a jury." 
 
 Written admissions. The foregoing observations have reference merely 
 to verbal admissions of the contents and effect of written documents. 
 When such admissions are themselves in writing, there seems never to have 
 been any doubt as to their admissibility. (3) 
 
 Thus, where a co.partner signed a notice that the partnership had been 
 dissolved, it was ruled to be evidence: against him that it had been dissolved 
 by competent means^ and, therefore, was evidence of a dissolution by deed, 
 if a deed were essential to such dissolution. (4) 
 
 So, letters of the plaintiff, in which he admitted himself to be a share- 
 holder, on a certain day, in a joint stock company , established by deed, 
 were held to be proof of that fact, without proof that he had even executed 
 the deed. (5) 
 
 Where the defendant put in evidence the plaintiff's answer to a bill in 
 equity, in which answer the plaintiff stated that he had conveyed certain 
 property by deeds of lease and release, it was held that the answer was 
 evidence or the conveyance, without notice being required to produce the 
 deeds. (6) 
 
 (1) See 5 C. & P. 543, n., post. 
 . (3) 6 M. & W. 664, 069. 
 
 Note 133. — One word as to the manner of proving verbal confessicois. A witness, one 
 Lenox, called to prove a conversation with a party, said he could not recollect the expres- 
 sions used, but would give his impressions as to the substance of the conversation. This 
 Hiode of gfiving the conversation was objected to, but held admissible. Snell v. Moses, 1 
 John. Rep. 99, 103. 
 
 But though the witness be uncontradicted and unimpeached, if the declarations hap- 
 pened a considerable time before he testifies to them, the precise words being important, 
 and he, though confident, not positive, a new trial will not be granted, because the verdict 
 is'a^inst liis testimony. Harding v. Brooks, 6 Pick. Rep, 344. 
 
 Ci) See Goes v. Quinton and Bessey v. Windham, supra, p. 431. 
 
 (4) Doe d. Waitbman v. Mills, 1 Stark. R. 181 ; S. C, 4 Camp. 373. 
 
 (8) Harvey v. Key, 6 B. & C. 356. 
 
 (6) Ashmore v. Hardy, 7 C. & P. 504. 
 
SEC. X.] Made dvHng 7¥eaty. 349 
 
 Where admission leiE not dispense xoith caUinff attesting witnesses. -It 
 will be seen, hereafter, that it is a rule as to the proof of private writings, 
 
 that if the execution has been attested by a witness, that witness 
 *426 *must be called to prove the execution ;(1) and this rule operates as 
 
 an exception to the principle now under consideration ; for instance,, 
 if it is proposed to prove an actual conveyance, an admission of its execu- 
 tion, even made upon oath in an answer in chancery, will not dispense with 
 calling the subscribing witness ; this, however, depends on the principle 
 upon which that rule is founded, namely : that the subscribing witness may 
 be acquainted with facts not within the recollection of the parties to an 
 instrument. (2) But an admission of the execution of a document expressly 
 made for the purpose of the suit, or under a judge's order, (3) stands upon 
 a different footing, and dispenses with the necessity of ealling the subscrib- 
 ing witness. 
 
 Parol Admissions as to Documents or Hecords. A parol admission ia 
 not receivable for the purpose of contradicting documentary evidence. 
 Thus, where a person was proved to be seized of certain lands, by docu- 
 ments produced in the cause, his declarations to the effect that he had a 
 less estate than a fee-simple, were rejected.(4) 
 
 A parol admission will not dispense with the production of a record ; as 
 where, to prove the discharge of the plaintiff under an insolvent act, it 
 was proposed to give in evidence his admission to that effect ; the evidence 
 was held to be insufficient, and it was thought necessary to call the clerk 
 of the peace, and to give in evidence the order of the Quarter Sessions, by 
 which the discharge was effected. (5) 
 
 Admission made without Prejudice. Another rule, defining the legal 
 nature of an admission, is, that ^n offer ,by a party, either verbal or in 
 writing, expressly stated to be made without prejudice, to pay money by 
 
 way of compromise, and with a view to buy peace, is not evidence of 
 *427 a debt by way of admission. (6) The ground *for the rejection of the 
 
 evidence does not seem very clear. It is generally considered that 
 
 (1) Post. Vol. II. 
 
 (2) By Le Blanc, J., in Call v. Bunning, 4 East, 53 ; Abbot v. Plumbe, Doug. 316 ; Cun- 
 liffe V. Sefton, 2 East, 183 ; Bowles v. Langworthy, 3 T. K. 366. 
 
 (The admission of a party showing the execntion of an instrament, that may be legally 
 executed without a subscribing witness, is admissible without calling such witness ; as in 
 the case of a promissory note. Hall v. Phelps, 2 John. R. 451 ; Shaver v. Ehle, 16 I4. 
 201 ; Henry v. Bishop, 3 Wend. 575 ; Pentz v. Winterbottom, 5 Denio, 51. And the Eng- 
 lish statute of 1854 provides that " it shall not be necessary to prove by the attesting 
 witness any instrument to the validity of which attestation is not requisite ; and such 
 instruments may be proved by admission or otherwise, as if there had been no attesting 
 witness thereto." 17 & 18 Vict. e. 125.) 
 
 (3) Vide infra. 
 
 (4) Harrison and Wife v. Moore, Nott. Spr. Ass. 1837 ; by Littledale, J., who observed, 
 that in the cases where such declarations had been received, the declarant's title had 
 rested merely on the fact of possession. A party cannot make title to land by a parol 
 admission of his adversary. Clark v. Baird, 3 Seld. 188 ; Terry v. Chandler, 16 N. T., 354. 
 Nqr can the title of a school district to its real estate be affected by an admission made by 
 one of its trustees, showing or tending to show an attornment to the party claiming the 
 premises. Walker v. Dunspangh, 20 N. Y. R. 170. 
 
 (6) Scott V. Clare, 3 Camp. 236. So, before Ld. Denman's Act, in order to prove the 
 incompetency of a witness on tjie ground of infamy, his own admission of having been 
 convicted was held not sufficient, and an examined copy of the record of his conviction 
 was required to be produced. R. v. Teal, 11 East, 309 ; Rounds v. Thomas, 5 M. & S. 
 344 ; R. V. Castle Careinion, 8 East, 78. 
 
 (6) Cory v. Bretton, 4 C. & P. 462 ; Healy v. Thatcher, 8 C. & P. 388 ; Jardine v. Sheri- 
 dan, 2 C. & Kir. 24. See also by Lord Kenyon, C. J., in Turner v. Railton, 3Esp. 474, and 
 ini Gregory v. Howard, 3 Esp. 113. As to the application of the rule in equity, see Har- 
 man v. Van Hatton, 3 Vem. 717 ; Turton v. Benson, 1 P. Wms. 497 ; Underwood v Lord 
 Courtown, 3 Sch. & Lef. 67. 
 
360 Admissions by Parties, [ch. vm. 
 
 an admission made without prejudice is not receivable on the ground of 
 policy, in protecting such confidential overtures. (1) 
 
 (1) See B. N. P. 336, where it is said, "If A. sue B. for £100, and B. offer to pay him 
 £20, it shall not be received in evidence, for this neither admits nor ascertains any debt, 
 and is no more than saying he would get rid of the action : " but the reason seems to 
 apply rather to the effect of such evidence, thanto its admissibility/. In Bouse v. Redwood 
 (1 Esp. 155), Lord Kenyon, C. J., rejected an admission, as being made to a bailiff on the 
 arrest of the party. 
 
 Note 124. — The rule as established by all the cases, with one exception, is not that an 
 admission made during, or in consequence of, a treaty of compromise is inadmissible 
 against the party ; but that an offer to do something by way of compromise, as to pay 
 sums of money, allow certain prices, deliver certain property, or make certain deductions 
 and the like, shall be excluded. ' These, cannot be called admissions, which can only be 
 predicated of existing facts ; but are unaccepted propositions to do. They lie in feasance, 
 and rather negative the present existence of what they offer. They might be used, per- 
 haps as implied admissions, were not this effect taken away by the circumstance that 
 they are plainly brought forward with the view to a compromise, and then, in favor of 
 peace and against litigation, they are privileged. Even this privilege seems to be con- 
 strued strictly ; for if the prop'osition is not made expressly without prejudice, or, at least, 
 if it do not plainly carry on its face the character of a peace offering, the privilege is gone. 
 
 Thus a statement and unqualified admission of an account, on being called' on for a set- 
 tlement, is admissible. Hyde v. Stone, 7 Wend. 354. And again, after an action of 
 assumpsit upon a charter ]&rty was commenced, the defendant offered a specific sum to 
 the plaintiffs, and a friefld of the plaintiffs went to the defendants and advised them 
 to increase their offer, which the defendants refused, saying, " We shall lose enough by 
 the charter party as it is." The witness added that nothing was said about this communi- 
 cation being without prejudice; but an objection was made that, as the transaction 
 appeared to have been a negotiation for a compromise, it must be understood to be with- 
 out prejudice. Lord Tenterden received the evidence as prima fade proof of liobility, 
 because it was not said to be witlwut prejudice ; and an offer of compromise may very well 
 be made without any restriction as to confidence. Wallace v. Small, 1 Mood. & Malk. 446. 
 Similar evidence was admitted in Watt v. Lawson (1 Mood. & Malk. 447, note), which 
 was a case for a newspaper libel. The attorneys met for the purpose of adjusting a 
 recanting article, and agreed on one to be inserted in the defendant's newspaper, which 
 was not done. This was allowed as evidence for the plaintiff in aggravation of damages. 
 
 In general, however, both in England and America, the nature of the negotiation has 
 been looked to ; and that the offer was intended to be without prejudice, has been inferred 
 from its being plainly an offer with a view to compromise. As observed by a learned 
 judge (Mills, J.) : " Offers of sums, prices or payments made during an attempt to com- 
 promise, are not admissible, if not accepted." Otherwise, as to the existence of a fact; 
 «. g. in slander, the plaintiff's admission of the fact that the defendant had not originated, 
 but only repeated the slander. Evans v. Smith, 5 Monroe, 363, 364. And it was lately 
 made a question in England, whether an agreement by the defendant in respect to a pend- 
 ing suit, to pay the claim of the plaintiffs, with part of the costs, and actually paying the 
 claim, but omitting to pay the costs, was in nature of a compromise, and therefore inad- 
 missible as evidence against the defendant. Bayley, J., thought it should have been left 
 to the jury to say whether what passed was an offer to purchase peace, or the admission 
 of a general liability. Holroyd, J., said the agreement was with a view to compromise, 
 and he considered it inadmissible for that reason. But a nonsuit was ordered on other 
 grounds; the other judges omitting to express themselves as to the effect of the negotia- 
 tion &r a compromise. Lofts v. Hudson, 2 Mann. & Eyl. 481, 483, 484. "The most, 
 *428 if not all .the American cases, have, like a *]arge majority of the English, gone on 
 the intrinsic character of the transaction, without requiring an express declaration 
 that the communication should be without prejudice. This will be seen, among other 
 distinctions, by the cases which we now come to state. 
 
 In trespass, the defendant offered in support of a motion for a new trial, a paper con- 
 taining an offer by the plaintiff, before suit brought, to accept a certain sura as his 
 damages, which was not acceded to by the defendant. The court said this would not be 
 evidence, even at the trial. Herr v. Slough, 2 Browne's Rep. Ill, 112, and note 6. In a 
 penal action, the plaintiff offered to show that the defendant had sought to have a com- 
 promise proposed. This was rejected as not being competent to prove guilt. Slocum v. 
 Perkins, 8 Serg. & Rawle, 295. A surety, being discharged by the conduct of the creditor, 
 offered to take a loan of money of the creditor, and secure him on his estate, and also for tho 
 sum yet due from his principal, from which ho was discharged in equity. But the proposition 
 was not accepted by the creditor. On bill filed, the proposition being urged against him, 
 the court denied it any weight, saying it was a rejected proposal for' compromise, which is 
 never received as evidence. Baird v. Rice, 1 Call, 18, 26. The defendant wrote a letter to 
 the plaintiff, offering to give up certain property ; but the proposition was not accepted. 
 
8BC. X.] Made during Tk-eaty. 351 
 
 On a bill filed in respect to that property, the court held that the letter tending to a com- 
 promise, it was inadmissible as establishing any claim to the property. Williams v. 
 Price, 5 Munf. 507, 510, 538. A proposition to give the plaintiff twenty-five dollars to 
 settle his demand, was held inadmissible, even to take a case out of the Statute of Limt 
 tetions ; the court aay, because it was a mere peace offering. Laurence v. Hopkins, let 
 John. Bep. 288. It was held that after twenty years' adverse possession, this giving a 
 title, the defendant's offer to purchase of the plaintiff was inadmissible as affecting his 
 title ; but this would rather seem to go on the Statute of Frauds. Smith v. Morrow, 5 
 Litt. Rep. 217, 220. The defendant offered a written statement of the contract, which the 
 plaintiff admitted, for the purpose of having it go to arbitrators then about to be chosen 
 by the parties ; but refused to sign lest it should be evidence against him. The arbitra- 
 tion having fallen through, held not admissible against the plaintiff. Wilson's Adm'r v. 
 Hines, 1 Alab. Bep. 255 ; S. C, post. 
 
 The Supreme Court of the state of New York has gone farthest in excludinfj admis- 
 sions made during a negotiatioBr for compromise. Thus, at the trial, the plaintiffi»ffered 
 his attorney as a witness. To exclude him as incompetent on the ground of interest, the 
 defendant proved that he sent to the plaintiff to leam on what terms he would settle 
 the suit. The plaintiff said he could not propose terms withput seeing his attorney, who 
 was interested, as owning part of the demand. Held inadmissible, as being drawn out by an 
 offer to compromise. Williams v. Thorp, 8 Cowen, 201. This exclusion of an independent 
 fact disconnected with, and not necessarily making any part of a proposition to compromise, 
 is contrary to the whole current of English and American authorities. It seems not sustain- 
 able upon Turner v. Bailton (2 Esp. Bep. 447), or Waldridge v. Kenuison (1 Id. 143), cited 
 and mainly relied upon by the learned judge who delivered the opinion of the court ; 
 though the dictum of Lord Kenyon in the latter cause is certainly broad enough for the 
 purpose. This dictum might have been a better ground of reliance, however, were it not 
 fearfully shaken by the very decision which followed in the same cause, and utterly over- 
 thrown t)y the subsequent decision of the same learned judge in Turner v. Bailton. 
 These two English cases go with the others cited by our author ; and the same thing had 
 been before held by several learned judges in New York, and by the Court of Errors 
 itself in that state. Thus, in an action for a breach of promise of marriage, the defendant 
 sent a witness to compromise with the plaintiff; and in the course of authorizing the 
 negotiation admitted the promise of marriage to the witness, his agent. Held, that the 
 plaintiff might show this ; and per Thompson, C. J., " The communications made between 
 the parties at the time of an attempted compromise, are alone privileged. The witness 
 was not an authorized agent fop both parties ; and there has been an admission of a fact 
 independent of the compromise." Mount v. Bogert, Anth. N. P. Bep. 190 ; 3 S. C, C. H. 
 Bee. 193. It was remarked in the Court of Errors by a senator, " I am not prepared to 
 admit that what a party may state as a fact, though the statement may be made in the 
 course of negotiation for a compromise, or may be connected with an offer to purchase 
 peace, will not be as binding as if the fact had been disclosed in any 6ther way. If a man 
 says to me, ' I do not admit that I owe you anything ; but rather than be sued, I will give 
 you a hundred dollars,' it would be most unjust to suffer me to avail myself of this offer, 
 to recover against 1pm. But if one tells me, ' I justly owe you a hundred dollars, 
 *439 and *I will give you fifty if you will give up your debt,' I apprehend there is no 
 rule of law so absurd and unjust as to prevent my availing myself of my debtor's 
 confession, because he connected with it an offer of compromise." Murray v. Coster, 4 
 Cowen's Bep. 635, per Colden, Senator. In this case, it was held that an answer in chan- 
 cery admitting the debt, but insisting on the Statute of Limitations, did not come within 
 the rule which excludes offers of compromise ; and that, accompanying a plea of the 
 statute, or standing alone, it is unavailable as destroying its own professed object. 20 
 John. Bep. 576 ; S. C, 4 Cowen, supra. , The case as presented in the 20 Johnson, certainly 
 goes farther, and seems to decide most plainly that an admission of a fact, though made 
 in the course of a negotiation for a compromise, is receivable. ' The bill was to recover the 
 plaintiff's share of the proceeds of goods sold by the defendants, being in nature of an 
 action for money had and received, wherein the defendants may have a right to, and in 
 this case did attempt to set up the Statute of Limitations. But it appeared by their 
 answer that they had, in order to avoid litigation, offered to pay the plaintiffs their share 
 without interest ; but reserved the right to plead the statute, if the offer was refused, and 
 insisted they were discharged by lapse of time. Held, " that this was such an Oicktvowlr- 
 edgment and admission of the debt as defeated the operation of the statute." 20 John. 
 Bep. 576. Such is the marginal note ; and that such is a correct abstract will be seen by 
 consulting the opinion of Spencer, Ch. J., at pp. 586 to 590. Here, then, is an admission 
 made avowedly and expressly with a view to compromise, to prevent litigation, and as a 
 peace admission, though not a peace offer or proposition ; and it was held receivable, and 
 not privileged because it was an admission of a fact. We shall now see, by a brief abstract 
 of the other American cases, and comparing them with the English, as presented in the 
 text, that the distinction established in Murray and Coster is sustained by all, with 
 the single exception of Williams and Thorp, supra. 
 
 In an action on an agreement for the defendants with the plaintiffs, to make a draw- 
 
352 Admissions by Parties, [ch. viii. 
 
 ■"430 *Admi88ion8-of this mature are generally made by the attorneys of 
 the parties in negotiations before the commencement of a suit. But 
 they are treated of in this -place because they are considered as the acts of the 
 parties themselves, and may, in fact, directly emanate from them. And 
 the same principle is applicable whether they are made by the parties or 
 their attorneys. (1) 
 
 bridge, the plaintiffs offered to show that one of the defendants admitted to one of the 
 directors of the plaintiffs that the draw was not made pursuant to the contract ; and in 
 the same conversation it appeared the defendant had asked for terms of compromise. 
 Theadmission being therefore rejected, on motion for a new trial, Hosmer, Ch. J , said : — 
 " The law on this subject has been often misconceived ; audit is time that it should'be 
 firmly: eptablished. It is never the intendment of the law to shut out the truth ; but to 
 repel*ijy inference which may arise from a proposition ralwie, not with design to admit 
 the existence of a fact, but merely to buy one's peace. If an admission, however, is made 
 iecame it is a fact, the evidence to prove it is competent, whatever motive may have 
 prompted to the declaration, In illustration of this remark, it may be observed that if A. 
 offer to B. £10, in satisfaction of his claim of £100, merely to prevent a suit or purchase 
 tranquillity, this implies no admission that any sum is due ; and therefore testimony to 
 prove the fact must be rejected, because it evinces nothing concerning the merits of the 
 controversy. But if A. admits a particular item in an account, or any other fact, meaning 
 to make the admission as being true, this is good evidence, although the object of the con- 
 versation was to compromise an existing controversy. The question to be considered is, 
 ■what was the view and intention of the party in making the admission — whether it was 
 to concede a fact hypothetically, in order to effect a settlement, or declare a fact really to 
 exist? There is no point of honor guarded by the court, nor exclusion of evidence, lest 
 it should deter from a free conversation. But testimony of admissions or de<9arationB^ 
 taking facts for granted, not because they are true, but because good policy constrains the 
 temporary yielding of them to effectuate a great good, is not admissible-^truth betng 
 the object of evidence." Hartford Bridge Company v. Granger and others, 4 Conn. 'Rep, 
 14Si. So, in a suit to charge the defendant with the maintenance of a bastard child, it 
 was offered to show that, on the mother charging him with being the father, he told he* 
 that if she would not sue him, but keep the matter secret, he would give her some money, 
 &c., held admissible, within the case in 4 Conn. Rep. 143. Fuller v. The Town of Hamp- 
 ton, 5 Conn. Bep. 416. Vid. p. 426. So, in an action on a promise by the defendants 
 (attorneys) to indemnify the plaintiff against arresting L., who had recovered against hini 
 for false imprisonment in making the arrest, which suit was defended by the defendants 
 as attorneys, the plaintiff offered to show that, while he and the defendants were together 
 trying to effect a compromise, one of the defendants told him that he had charged him 
 nothing for defending the suit brought by L. This was offered as a ground of inference 
 that the defendant was a joint promisor to indemnify. The evidence was held admissible, 
 as tending to the admission of a fact, or item, independent of an offer of compromise. 
 Marsh V. Gold, 2 Pick. 285, 390. So, in an action for money .had and received, it was 
 offered to show that the defendant gave B., who applied to him in behalf of one of his 
 creditors, between whom and the defendant a compromise was pending, a memorandum of 
 the money due to the plaintiff; but it was to be confidential, and not to be shown to the 
 creditors. It was objected that there was a compromise pending. The court disallowed 
 the objection. They said the rule is, that an offer to pay a sum of money to compromise 
 B pending controversy is inadmissible ; but this is confined to the mere offer of com- 
 promise. Any independent facts admitted during the treaty of compromise may be given 
 in evidence as confessions. Gerrish, Adm'r, v. Sweetser, 4 Pick. 374, 377. Again : — 
 " Ellery opposed the introduction of testimony to prove admissions made while a com- 
 promise was in contemplation. Livingston, contra. ' Proposals made while a compromise 
 is on the carpet, do not bind ; but con'versations in which a fact is disclosed may be admit- 
 ted to prove it.' Of this opinion was the court." Delogny v. Rentoul, 2 Mart. Lou. Kep. 
 175. Again : the plaintiffs claimed that the defendant had bonnd himself by his agent, 
 Davis, to convey to the plaintiff's ancestor the legal title of certain land ; and the defend- 
 ant proposed terms of compromise not complied with ; but in the same proposition 
 admitted that Davis was his agent. Though this was the only evidence of the agency, 
 yet the court received it, saying it was the admission of a fact no way connected with a 
 mere offer of compromise, nor necessary to a compromise. Cliurch v. Steele's Heiis, 1 
 Marsh. Ky. Rep. 828. So in crim. con., the defendant, with a view to compromise, admit- 
 ted to the plaintiff that he had been guilty of the imputed intimacy with bis wife, and 
 offered to take and bring up one of his children. Held, thiit intimacy was an independent 
 fact, and might be given in evidence against him ; that the offer, had it stood alone, 
 would not be so ; but following, as it did, the first admission, and appearing to be grounded 
 on it as a consequence, the whole was receivable as a connected admission of the fact. It 
 was like an express admission that $30 are due, and an offer to pay that sum. Sanborn 
 V. Neilson, 8 N. H. Kep. 501, 508, 509. 
 (1) Vide Post. 
 
SKc. X.] Made during Treaty. 3^3 
 
 Where a communication, " without prejudice," had taken place between 
 the attorneys of the plaintiff and the defendant, and the plaintiflfs attorney 
 three months afterwards called on the defendant to explain why an earlier 
 answer was not given to a proposition made in the course of the prior com- 
 munication, it was held that the evidence of what passed on the second 
 occasion was inadmissible. (1) And where a letter has been written " with- 
 out prejudice," the answer to it, though not guarded in a similar manner, 
 will not be admitted. (2) 
 
 The rule under consideration seems to apply to any admission or confes- 
 sion made by a party respecting the subject matter of the action, obtained 
 while a treaty is depending under faith of such treaty, and into which 
 the party may have been led by the confidence of a compromise taking 
 place ;(3) but it does not apply where admissions are made not under 
 *431 *the condition of their being without prejudice, or not under the 
 faith of any treaty for a compromise ;(4) or where an agreement, 
 though purporting to be a compromise, has been finally concluded (as, 
 where it has been signed by the parties and executed), (5) or where the 
 admissions were made before an arbitrator. (6) In this last case, though 
 the proceedings are said to be before a domestic forum, yet the parties are, 
 at the time, contesting their rights as adversely as before any other tribu- 
 nal. (7) The fact of a person having made an oflfer to compromise a suit, is 
 admissible, and may be material, as some evidence of liability,(8) although 
 it may not be proper to inquire into the terms ofiered;(9) but an offer to 
 pay a less sum than that demanded, is not a sufiicient acknowledgment of 
 a debt, to support a count upon an account stated, as it merely amounts to 
 an offer to purchase peace. (10) 
 
 Admission of Collateral or Indifferent Facts during TVeaty. A distinc- 
 tion, also, is to be made on this subject, between an admission of some fact 
 connected with the merits of the cause, and an admission of an indifferent 
 fact. Thus, on the trial of an action, which had been once withdrawn 
 under a treaty between the parties. Lord Kenyon, C. J., allowed proof of 
 the defendant's having admitted his acceptance on a bill of exchange, 
 though the admission had been made during the treaty ;(11) he held, that 
 any admission by the party, respecting the subject matter of the action^ 
 pending a treaty on the faith of which it was made, could not be received 
 
 (I) Collin's Ex'rs v. Wright, Midi. Spr. Cir. 1837 ; hj Lord Abinger, C. B. 
 
 (3) Paddock v. Forrester, 3 Soott N. R. 834. 
 
 (8) By Lord Kenyon, C. J., in Waldridge v. Kennison, 1 Esp. 143, 144. See also by 
 Bayley, J., in Thompson v. Austen, 3 D. & R. 361. 
 
 (4) Wallace v. Small, 1 M. & M. 446 ; HUl v. Elliot, 5 C. & P. 436. 
 
 (5) Frognell v. Lewelyn, 9 Pr. 122, 128. See also Collier v. Nokes, 2 C. & K. 1013. 
 
 (6) Westlake v. CoUard, B. N. P. 236 ; Gregory v. Howard, 3 Esp. 113 ; Slack v. Buch- 
 anan, Peake N. P. C. 5 ; Harman v. Van Hatton, 3 Vern. 717 ; 1 P. Wms. 497. 
 
 (7) Doe d. Lloyd v. Evans, 3 C. & P. 319. The admissions may be proved by the arbi- 
 trator. Gregory v. Howard, 3 Esp. 113. 
 
 When an offer is made to admit facts ■with the view to an arbitration, which falls 
 through, the offer being accompanied with a refusal to sign a written statement of the 
 facts for fear it might be used as evidence, the admission or offer is inadmissible. Wil. 
 son's Adm'r v. Hines, 1 Ala. Eep. 255. No reservation being made in an offer of compro- 
 mise, the offer may be proved, where it takes for granted the execution of a note. Grubbs 
 V. Nye, 13 S. & M. 443. As previously stated, an offer to do or to admit a given thing in 
 a negotiation for a compromise is not admissible, while a statement of a fact relating to the 
 subject matter of dispute may be proved. Cole v. Cole, 33 Maine, 543 ; Marvin v. Rich- 
 mond, 3 Denio, 58. 
 
 (8) Wallace v. Small, M. & M. 446 ; Watts v. Lawson, Id. 447, n. ; Nicholson v. Smith, 
 3 Stark. R. 128. 
 
 (9) Harding v. Jones, 1 T. & G. 135. See also Thomas v. Magan, 2 C, M. & R. 496. 
 
 (10) Wayman v. Hilliard, 7 Bing. 101. 
 
 (II) Waldridge v. Kennison, 1 Esp. 143. See also by Lord Kenyon, C. J., in Turner t. 
 Railton, 3 Esp. 474. 
 
 Vol. I. 45 
 
354 Admissions by \Parties, [ch. viii. 
 
 to hie prejudice; but added, sueh a fact as that of the party's handwriting, 
 not being connected with the merits of the cause, and capable of being 
 easily proved, stood on different grounds, and that an admission of this fact 
 might be received. 
 
 *432 * Admissions on examinations. With respect to the question, whether 
 an admission, to be receivable in evidence, must be voluntary, there 
 appears to be a distinction between civil and criminal cases. It has been 
 considered that, on the trial of civil actions, admissions are receivable in 
 evidence, provided the compulsion under which they are given, be legal : if 
 the party were imposed upon, or under duress, he would not be bound by 
 them.(l) Thus, it has been held, that an examination before commissioners 
 of bankrupt was evidence against the party making it ;(2) arid this, not- 
 withstanding the party might have objected to the questions, as exposing 
 him to penalties; (3) or though the questions have been improperly put 
 to him, and Were unconnected with the interests of the bankrupt's estate, 
 and had even been put with a view to procure evidence in an action pend- 
 ing against him ;(4) or though part only of his deposition was taken down 
 in writing and signed by him. (5) In like manner, testimony given in court, 
 admitting a particular fact, may be used as an admission of the fact, though 
 the person examined was prevented from entering into an explanation of the 
 circumstances under which the feet took place, as being irrelevant to the mat- 
 ter in issue upon the former oe6asion.(6) 
 
 (1) See by Lord EUenborongh, C. J., in Stockfleth v. De Taetet, 4 Camp. 10. 
 : (2) RobBon v. Alexander, 1 M. & P. 448. 
 
 (3) Smith V. Beadnell, 1 Camp. 30. 
 
 (4) Stockfleth v. De Tastet, 4 Camp. 10. The remedy of the party so improperly exam- 
 ined is by application to the Lord Chancellor tohave the examination taken off the file : 
 by Lord EUenborongh, C. J., Id. 
 
 ' (5) Mil ward v. Forbes, 4 Bsp. 171. 
 . (6) CoUett v. Keith (Lord), 4 Esp. 212. 
 
 Note 125. — (Testimony given on a coroner's inquest voluntarily, is admissible against 
 the witness on trial for crime (The People v. Hayers, 1 Parker C. E. 595 ; Id. 406) ; not so 
 when given involuntarily. People v. McMahon, 15 N. Y. Rep. 384. Statements of facts 
 made by a party, or by his counsel with his assent, in one cause, are admissible against 
 liim in another. Truby v. Seybert, 12 Penn. State E. 101. But in general, the remarks 
 Af counsel in the trial of a cause are not to be construed as an admission determining the 
 rights of his client (McKeen v. Gammon, S3 Maine, 187) ; though an admission by an 
 attorney of the amount collected, may be shown in evidence against his client. McEea 
 V. Ins. Bank of Columbus, 16 Ala. 755. See Underwood v. Hart, 23 Vt. 120 ; Thomas v. 
 Kinsey, 8 Geo. 421. The testimony of a party to the suit, given by him on the trial of a 
 former action between himself and another person, in conflict with what he testifies to in 
 ttie second suit, may be proved against him as an admission. Pickaid v. Collins, 23 
 Barb. 444.) 
 
 See Eobetaille's Cases, stated in a subsequent note. Bo where a witness answers ques- 
 tions upon a lega,l investigation before the House of Commons, tending to criminate him- 
 self, and to which he might have demurred, his answers may be used against him as 
 admissions upon his own trial, for the crime which they tend to prove. Kex v. Merceron, 
 Cor. Abbott, J., 2 Stark. Rep. 366. In Eex v. Gilham (Ey. & Mo. Cr. Cas. 203), on Bex v. 
 Merceron being cited. Lord Tenterden said : " I think there must be some mistake in that 
 ease ; the evidence must have^een given without oath, and before a committee of inquiry, 
 where the witness would not be bound to answer." So on a trial (4 Stark. Ev. 39), the 
 examination of one as a witness on oath, is evidence against him in another cause. 
 Benedict, Adm'r, &c. y. Nichols, 1 Eoot, 434. So what he confessed in a criminal prose- 
 cution agaiu t him. Eno V. Brown, Id. 528. So penitential confessions voluntarily made 
 to members'of the same church, in a course, of discipline. Commonwealth v. Drake, 15 
 Mass. Bep. 161. So a confession in respect to an indictment, is evidence against him in a 
 civil cause. Eno v. Brown, 1 Root, 528. So What the plaintiff confessed, on a hearing 
 before commissioners to examine the claims against an estate represented insolvent. 
 Fitch V. Hyde, Kerby, 258, 359. So what the party admitted before the justice, may be 
 proved on the trial upon appeal. Reed v. Rocap, 4 Halst. 346, 852. So what he admitted 
 before arbitrators, may be received against him on trial. Doe ex dem. Lloyd v. Evans, 3 
 Carr. & Payne, 219, stated pfat. So B.'s deposition, on examination upon oath before a 
 magistrate, against A., to prove a forgery, was held admissible against B., on trial of 
 
SBC. x.] Made on Meamitiaiions. 355 
 
 *433 *Adriiisteions of this kind' aire evidence in favor of parties who were 
 strangers to the former proceedings ; thus, in an action on a bill of 
 exchange, an admission in an answer to a bill, filed by other creditors 
 against the defendant, may be read as evidence against him.(l) 
 
 An admission, however, made by a party under examination before com- 
 missioners of bankruptcy, that he had received money, on behalf of the 
 bankrupt, after an act of bankruptcy, has been held not to be evidence of 
 an account stated with the assignees, as it was not an admission of a sub- 
 sisting debt payable to them. (2) 
 
 The admissibility, in criminal triate, of 'adibissiotis made in examinations 
 upon oath or otherwise, will more properly be considered in the next section, 
 which treats of the admissibility of confessions. 
 
 Indirect or implied admissions. ' There is a species of admissions, 
 wherein the existence and truth of the fact to be proved is assnmed in the 
 expressions which are given in evidence. ' The expressions, in such cases, 
 dre received as an admission of the fact, though they were used for some 
 other purpose, and though the admission is only implied ; and, as an admis-' 
 sion, they are allowed to supersede the necessity of producing more explicit 
 
 evidence. (3) 
 *434 *Where an auctioneer advertised for sale the property of J. S., a 
 
 bankrupt, this was held to be evidence of the title of the assignees in 
 an action against the auctioneer. (4) The evidence in this case was said to 
 be conclusive, on the ground that it imported an authority from the 
 assignees ; for the bankruptcy would have put an end to every authority 
 
 a charge of the same forgery upon him,. Bex v. Haworth, 4 Carr. & Payne, 254. So, 
 elaminations' of parties before coirhnissionei'^ of bankrupt iare evidence in actions against 
 them by the assignees, unless such examinations were obtained by imposition, or under 
 duress. Robson V. Alexander, 1 Moor & Payne, 448. And ewie Tucker v. Barrow, 1 Mann. 
 & Ryl. 518. 
 
 In certain cases In New. York, the statute compels witnesses to give evidence tending 
 to criminate themselves ; but it disallows what they say, as after evidence against them. 
 Among these cases, are the testimony of attorneys, solicitors and counsel, as to the illegal 
 purchase by thfem of a chose in action for the purpose of prosecution. 3 R. S. 389. So of 
 persons other than the parties prosecuted under the gaming statutes. 1 R. S. S6S, § 18. 
 , a^ Grant v. Jackson, Pea. N. P. C. 203. See aleo Ashmore v. Hardy, 7 C. & P. 501. 
 
 O^ Tucker v. Barrow, 7 B. & C. 623 ; by Bayley, J. Littledale, J., expressed an opinion 
 that an admission, bbtained under a compulsory examination, is not evidence at all of an 
 axxsount stated. 
 
 (S) Note 136. — The mere admission of a debt shall not charge the defendant with tha- 
 whcje of the plaintiff's demand ; but he must prove the amount. Quarle's Adm'rsL v. Lit- 
 tlepage, 2 Hen. &, Munf. 401. Such an admission will not authorize a jury to find any 
 partfcnlar sum. Douglas v. Davie, 2 M'Cord, 218.' Not even nomiui^l damages, on a 
 count upon an account stated. Bernascom v. Anderson, 1 Mood. & Malk. 183. Aidwhere 
 the defendant, on being arrested, said the debt due the plaintiff was just, and l>e would 
 pay it ; and the jury, on proving this, found for the plaintiff the amount sworn to in the 
 plaintiff's affidavit to hold the defendant to bail, which affidavit was attached to the writ ; 
 the court set the verdict aside, saying the confession was not sufficiently definite to war- 
 rant the finding. Harrison v. M'Einney, 3 Bay, 413. But the confession of a debt is 
 idways considered the best of evidence, so far as it goes. Hendrick^on, Adm'r v. Miller, 1 
 Rep. Const. Ct. 296. And a letter to a creditor. " that four bales of cotton will pay the' 
 amount," was held to admit a debt to the value of such bales. Douglas v. Davie, 2 
 M'Cqrd, 218. Again, in assumpsit for goods sold, a witness for the plaintiff stated that 
 he called upon the defendant to execute a bond to the plaintiJFfor £136. The defendant 
 replied that he expected to receive money for land which he had sold, in about six weeks, 
 when he would go down to the plaintiff and settle the account with him, and pay it off. 
 The witness believed that he showed' the defendant the account (but of this he was not 
 certain), and that the defendant ,did not then examine the account (which was composed 
 of a large nurtiber of items), but made no exceptions to it. On delnurrer to this evidence, 
 the Sfuperior Court gave judgment for the defendant; but on appeal, this judgment was 
 reversed — the Court of Appeals holding the evidence sufficient to sustain the action. 
 Dunbar v. Beale, 5 Munf. 24. 
 (4) Maltby V. Christie, 1 Esp. 340, commented on in 16 East, 198. 
 
356 Admissions hy Parties, [ch. tiii. 
 
 •which the bankrupt might have given to sell the goods. (1) In a case where 
 a defendant had paid money into courts and pleaded that the plaintiff had 
 sustained no greater damages, a judge's summons, taken out by the defend- 
 ant two days before the trial, to allow him to pay a larger sum into court, 
 was admitted in evidence for the plaintiff, although the latter summons was 
 abandoned, and no order made upon it. (2) A statement upon an appeal, 
 that those against whose acts the complaint is made, are justices, is an admis- 
 sion of their jurisdiction. (3) 
 
 There is another species of implied admission — where a party has assumed 
 a particular character, or where, by his conduct or language in the trans- 
 action in question, or in previous transactions of a similar nature, he has 
 I'ecognized the existence of a title, upon which the opposite party relies. 
 In speaking of cases of this latter description, Lord Ellenborough, C. J., 
 observed :{4) " I take it to be quite clear that any recognition of a person 
 Standing in a given relation to others, is prima facie evidence, against the, 
 person making the recognition, that such relation exists." 
 
 On an information against a military officer for making false returns, it is 
 sufficient to prove that he acted in the character alleged in the charge, 
 without direct evidence of his appointment. (5) In an action for penalties 
 against a collector of taxes, proof of his collecting the taxes is sufficient evi- 
 dence of his being a collector, though his appointment is by warrant under 
 an act of Parliament. (6) In an action against a clergyman for non- 
 *435 *reBidence, the acts of the defendant as parson, and his receipt of the 
 emoluments of the church, have been considered good evidence 
 against him of his being parson, without formal proof of his title. (7) Upon 
 an indictment for embezzlement against a letter carrier, proof that he acted 
 as such is sufficient, without proof of his appointment. (8) Proof that A. 
 B., as the proprietor of a newspaper, had given security for the payment of 
 duties on advertisements, and had from time to time applied to the Stamp 
 Office concerning duties on the paper, is evidence of his being the pub- 
 lisher. (9) 
 
 The fact that a party did a particular act in an official capacity may be 
 proved, not only by showing that he exercised the office before or at the 
 period in, question, but also by evidence (limited to a reasonable time) that 
 he exercised it afterwai'd8.(10) 
 
 In an action for penalties under the Post-horse Act, brought by the 
 plaintiff as farmer-general, proof of his appointment was dispensed with, 
 the defendant having previously accounted with him as farmer-general. (11) 
 In an action for subtraction of tithes, proof of the defendant's former 
 acknowledgment of the plaintiff's title to the tithes was thought to be suf- 
 ficient evidence of title, as against the defendant, a wrongdoer. (12) In an 
 action by the clerk of the trustees of a turnpike road, brought against one 
 
 (I) See, also, Ledbetter v. Salt, 4 Bing. 636 ; Harmar v. Davis, 7 Taunt. 577, infra. 
 (3) Domett v. Young, C. & Marsh. 465. 
 
 (3) R. V. Fisher, Cald. 135. As to indirect admissions made hy the attorney in the 
 cause, see infra. 
 
 (4) In Dickenson v. Coward, 1 B. & A. 679, recognized by Lord Lyndliurst, C. B., in 
 Inglis V. Spence, 1 C, M. & B. 436. See, also, James v. Biou, 3 Sim. & Stu. 606. 
 
 (5) B, V. Gardner, 2 Camp. 513. 
 
 (6) Lister, q. t. v. Priestley, Whitow. 67. 
 
 (7) Bevan. q. t. v. Williams, 3 T. R. 635, n. a ; where the evidence is spoken of by Lord 
 Kenyon, C. J., as decisive. See by Chambre J., in Smith v. Taylor, 1 N. R. 210. See also 
 E. V. Kerne, 7 How. St. Tr. 714 ; B. v. Bromwich, Id. 733 ; B. v. Atkins, Id. 728, as to proof 
 of ofiHciating as a Popish i^riest under 27 Eliz. c. 2 ; repealed by 7 & 8 Vict. c. 102. 
 
 (8) B. V. Berrett, 6 0. & P. 124. 
 
 (9) B. v. Topham, 4 T. B. 126. See Cross v. Kaye, 6 T. R. 663, as to a party haying: 
 acted as an attorney. 
 
 (10) Doe d. Hopley v. Young, 8 Q. B. 68. 
 
 (II) Eadford q. t. v. Mackintosh, 8 T. B. 683. 
 
 (13) Chapman v. Beard, 3 Anstr. 493. And see 1 N. B. 210 ; 3 T. B. 635 ; 4 Id. 366. 
 
SEC. X.J Assumption of Character. 357 
 
 of the trustees, the fact that the plaintiff had acted as clerk, and that the 
 defendant had acknowledged him as such, is evidence of the plaintiff's ap- 
 pointment. (1) In an action by the assignee of a bankrupt, proof that the 
 defendant had attended a meeting of the commissioners, and exhibited an 
 account between him and the bankrupt, claiming certain deductions, and 
 that he afterwards made a part payment to the plaintiff was held to be 
 prima facie evidence of the plaintiff's title to sue as an assignee. (2) In 
 like manner, proof that the defendant had written letterg to the solicitor 
 under a commission of bankrupt, acknowledging the title of the plaintiffs 
 as assignees, was held to be prima facie evidence of their title to sue as 
 assignees, even though notice to dispute it had been given by the 
 
 defendant. (3) 
 *436 *In an action against the defendant for slander in charging the plain- 
 tiff with being a swindler, and threatening that he would have him 
 struck off the roll of attorneys, the court was of opinion that the defend- 
 ant's threat amounted to a distinct acknowledgment that the plaintiff was 
 an attorney and dispensed with further proof of that fact. (4) 
 
 Upon the principle of the abovermentioned cases, two of the judges of the 
 Court of Common Pleas were of opinion that the plaintiff was entitled to 
 recover in the case of Smith v. Taylor. (5) That was an action for defama- 
 tion, in which the plaintiff averred that he was a physician, and exercised 
 the profession, and that the words were spoken concerning him as a 
 physician. It appeared that the words did not impute want of qualification 
 by degree, but only want of skill in practice ; and that the defendant called 
 the plaintiff " Dr. S." when he spoke the words ; and, further, the defend- 
 ant, as an apothecary, had followed the directions of the plaintiff as a 
 physician, in the business out ot which the cause of action arose. These 
 circumstances were considered by two of the judges, against the opinion 
 of the other two, as sufficient prim,a facie evidence of the plaintiff's quali- 
 fication. (6) 
 
 On the other hand, if the words imply a charge that the plaintiff was 
 not qualified to act in the particular character which he assumed, it has 
 been held that the qualification ought to be proved, and that it will not be 
 sufficient to show his acting in that capacity. (7) 
 
 In the preceding cases, the admissions were in the form of written or 
 verbal statements made by parties to actions, or of acts done, by them. 
 In some cases, it is allowable to give evidence of written or verbal state- 
 ments made, or of acts done, by others, and then to show how the party 
 
 (1) Pritcliard v. Walker, 3 C. & P. 212. 
 
 (2) Dickinson v. Coward, 1 B. & A. 679. 
 
 (3) Inglis V. Spence, 1 C, M. & E. 433 ; Crofton v. Poole, 1 B. & Ad. 668. See R. v, 
 Barnes, 1 Stark. R. 243 ; Clarke v. Clarke, 6 Bsp. 61 ; Like v. Howe, 6 Esp. 20 ; Mercer v. 
 Wise, 3 Bsp. 219 ; Havelock v. Cook, 5 T. R. 655 ; Pope v. Monk, 2 ':. & P. 112 : Walker 
 V. Burnell, Doug. 303. Sqp, also, Mott v. Mills, 8 C. & P. 197, on the effect of 6 Oeo. IV., 
 c. 16, as to bankrupt petitioning for his discharge. 
 
 (4) Berryman v. Wise, 4 T. R. 366, recognized in Pierce v. Whale, 5 B. & C. 39. 
 
 (5) 1 N. R. 196. 
 
 (6) By Lord Mansfield, C J., and Heath, J. ; but Rock, J., and Chambre, J., were of 
 opinion that the words did not admit the qualification. 
 
 (7) See the judgment of Lord Mansfield, C. J., in 1 N. R. 204, 207; Pickford v. Gutch, 
 8 T. R. 305, n. a. Where the words imply mere negligence or ignorance, without admit 
 ting the plaintiff to be qualified, and the plaintiff avers that he is qualified, he will be 
 bound to prove his qualification. 1 N. R. 304, 207. And see Collins v. Carnegie (I A. & 
 E. 703), where it is said that a person, complaining of slander upon him in a particular char- 
 acter, must prove that he possesses that character, when the slander does not admit it. 
 See also Lipscombe v. Holmes (2 Camp. 441, infra), where, in an action for wort and 
 labor as a surgeon, although the plaintiff had represented himself as a physician, and it 
 was contended that he could not, therefore, maintain an action for his fees, it was held, 
 that the payment of money into court by the defendant was tantamount to an ad uission 
 of the plaintiff's right to sue as a surgeon. 
 
358 Admiaaions by Parties,- [^h. tiii. 
 
 who heard or read the statements, or saw the aetii done, was affected by 
 them, for the purpose of using his cpnduct,. expressions or demeanor, 
 
 *4?7 as *evidence against him by way of admissiqn. The evidence ui 
 such cases is altogether presumptive in its quality and character. (1) 
 
 (1) Note 137. — The cases cited by trar author to illustrate the doctrine of implied or 
 virtual admissions, are, 1. That a bankrupt contesting part of the items of a long account 
 before the commissioners, which contested items are ticked off and' a balance struck, may 
 lie used as an admission against him pf the balance (2 Maul. & Sel. 365),; that.iC a candi- 
 date use hustings ejected by the returning oflScer, a promise on the candidate's part will 
 be inferred to contribute to the iexpense of erecting them (1 Campb. 318) ; that a landlord, 
 by receiving rent, waives the forfeiture of his lease (3 Taunt. 77) ; that the defendant's 
 catalogue of sales as " the property of D." (the plaintiff's assignor), " a bankrupt;^ admit- 
 ted his bankruptcy (1 Esp. Rep. 340, 341, cited 16 East, 193), and that a landlord standing 
 by without objection, and seeing his tenant make alterations beyond his right, is evidence 
 that the landlord means to be bound by his tenant's acts. 1 Esp. Eep. 364. 
 
 The object of this note shall be to inquire what amounts to an admission. The 
 doctrine under this head most familiar with the legal profession is, that " What is asserted 
 in the presence of a party to a suit and not contradicted- by him, is received as evidence 
 against liim, on the grpund tl)at his silence is an implied admission of the truth of what 
 was said." • Per Buchanan, J., in Batturs y. Sellers, 5 Har. & John. 119. Thus, a cash 
 account shown to the' defendseht, ahd not objected to by him, was held sufficient evidence 
 of his admission to go to the jury. Coe v. Button, 1 Serg. & Rawle, 398. ' Again: on 
 -motion for a new trial, the court say, by CheveSi J.:—'" In this case, it was averted by the 
 pisuntiff repeatedly, in the hearing of the defendant, and in conversations addressed par- 
 ticularly to hinj., that he had received money belonging to the intestate, to the amount of 
 $3,000 ; and he did not contradict it. If there had been no other evidence in the cause, 
 if the question had been fairly subniitted to the jury (and on ttiaV head there is no com- 
 plaint), I'shbnld have been at a loss to say on what ground the verdict should have been 
 set aside. If it had been for $3,000, 1 cannot say it ought to have been set aside. I readily 
 admit such testimony may be equivocal, and should somstinies be received on the tri^il with 
 cautious and reluctant credence ; bat at other times it will be acknowledged to be perfectly 
 satisfactory. The discrimination can seldoni be made but at the trial." Hendrickson, Adm'r 
 V. Miller, 1 Eep. Const. Court, 396. The defendants bid off a bale of broadcloth ; and the 
 auctioneers made out and delivered a bill of parcels to them. Hflld, that standing by in 
 silence and seeing their names placed in the bill as purchasers, was an assent that the 
 auctioneers had authority to plivpe it there, which, made oiutu, good note in writing, within 
 the Statute of Frauds^ Batturs v. Sellers, 5 Har. & John. 117, 119. Again: tliat a pur- 
 chaser paid £50 to the seller, saying, " this is the amount of T. tract ; it is mine now," is 
 evidence of payment in full ; that not being contradicted. Vincent v. Huff's Lessee, 8 
 Serg. & Rawle, 381, 389. And so if spoken to another in so loud a voice as tomake it quite 
 certain that, the r^peiyer hefird wl\at was said. Id. So a man being called by and answer- 
 ing to a certain name, or pleading to an indictinent by a certain name,, is evidence against 
 hiiii that Ihe name pronounced is his true name. State v. Eawles, 2 Nott & M'Cord, 381. 
 The plaintiff was present on application by the defendant to a judge at chambers, to Tje 
 discharged on common bail. A witness was sworn, who died ;■ and what he said was pro- 
 posed to be proved on the trial of the same cause, the plaintiff not denying at the hearing 
 what the witness swore. The court received it as they would any other statement in the 
 party's presence, not denied ; saying the maxim, qui tacet, consentire mdetur, applied. 
 Jackson v. Winchester, 8 Yeates, 539. Quere. See Rex v. Appleby; and Melen v. 
 Andrews, infra, contra ; and see, also, Hovey v. Hovey, and Martin v. Root, infra. A 
 physician's _bill'_ for attending a sick seaman was presented to the master of the ship, who 
 made no objection *" '*• This was held evidence against the master in an action to recover 
 on the bill. M'Bride's Ex'x v. Watts, 1 M'Cord, 884. So whefB one asserted the terms of 
 a, contract between him and A., to the latter, who did not contradict them ; held proof of 
 the terras as asserted (Wells v: Drayton, 1 Hep. Const. Court, 111); and the jury depart- 
 ing from this proof in the abpenco of anything to contradict it, a new trial was granted. 
 
 Id. 
 ♦438 *The following cases will show the qualifications under which conversations of this 
 
 kind are to be received. 
 In ejectment, the plaintiff offered to show that the defendant was along as chain bearer 
 for a jury of view between other parties, who held a conversation in his presence relative 
 to the locality of the tract now claimed by him. Held inadmissible. "The court say there 
 is no evidence that he stood so near as of necessity to hear the conversation. He was 
 employed in a business Which required all his attention. The reason why this Species of 
 evidence is ^ven, is because the party, by his silence, is supposed to acquiesce. Qvi tacet, 
 eonsenti/re liidetur. That presupposes a proposition made to him which he is bound either 
 to deny or admit. Such evidence ought never to be received unless it be of direct declara- 
 tions which naturally call for contradiction ; some assertion made to a man with respec 
 
SKC. X.] By Demeanor and Conduct. 359 
 
 to his right, which by his silence he acquiesces in. Moore T. Smith, 14 Serg. & Eawle, 
 888, 393. So, on the question whether tlie defendant had notice of the plaintiff's claim 
 to the land in dispute, the defendant proved that he denied notice to the plaintiff; who 
 did not say he had any, but talked of quieting the dispute. The court said this should 
 not be received as evidence that the defendant had not notice ; as the plaintiff being 
 desirous to quiet the dispute, would in all probability avoid contradiction and irritating 
 language. Rochester v. Anderson, Litt. Sel. Cas. 143, 145. The prisoner did not contradict 
 a statement made by the solicitor for the prosecution, before the examining magistrate, 
 and it was sought to be given in evidence on that ground as an admission of the prisoner. 
 But the witness called to prove the statement, saying he believed it was taken down in 
 writing, it was not received. Rex v. Hollingshead, 4 Carr. & Payne, 242. On this case, the 
 learned reporters suggest that the testimony would not be admissible in any form, merely 
 because not contradicted by the prisoner, no inference arising from his silence under the 
 circumstances ; and they rely on Rex v. Appleby (3 Stark. N. P. Cases, 33), and Melen v. 
 Andrews (1 Mood. & Malk. 336). The first was where A. & B. being charged with a joint 
 felony before a magistrate. A., on his examination before the magistrate, confessed in B.'s 
 presence and hearing that the felony was joint by them, which B. did not contradict; yet, 
 held not admissible against B. ; and, in the latter, a deposition taken before a magistrate 
 on a charge against A., where A. cross-examined the witness, but did not contradict what 
 he said, was denied in evidence against A. See also Hovey v. Hovey'and Martin v. Root, 
 mfra. In trover for a negro boy, the plaintiff offered to show that the defendant being 
 applied to, to exchange the boy, said that the boy belonged to the plaintiff, and advised 
 him to apply to the plaintiff, which he did ; and the plaintiff replied that he would not 
 make the exchange, " that ii wovid Tiot auit him, to exchange the boy for a man." The court 
 rejected this response as inadmissible ; for it could not add to the admission of the defend- 
 ant, and so was not material ; and beside, it would be allowing the plaintiff to manufac- 
 ture testimony for himself. Talbot v. Talbot's Rep's, 2 J. J. Marsh. 4, 5. 
 
 In an action for an assault, what was said by the magistrate to the plaintiff, at a pre- 
 vious investigation of the circumstances before him, is not admissible for the defendant, 
 unless the plaintiff replied ; and per Best, Ch. J., on the question as to what the magis- 
 trate said being proposed : "A man may say,"rhis is impertinent in you. I will not 
 answer your question.' You are driving at the opinion of the magistrate, whereas it is 
 for the jury to form their opinion." Child v. Grace, 2 Carr. & Payne, 193. 
 
 (In an action for an assault, Jewett v. Banning, 21 N. T. 37, evidence was given that 
 plaintiff, a few days after the alleged assault, charged the defendant, in presence of wit- 
 nesses, with having committed the assault, showing the bruises on her arms as evidence 
 of the charge : the defendant denied her allegations ; and, after an interval of half an hour 
 to an hour, other persons being present, plaintiff repeated the charge, with some varia- 
 tion, to which the defendant then made no reply. And the court left it to the jury to give 
 such weight to his silence, when the charge was repeated, as they thought it entitled to. 
 In Van Voorhies v. Hawes (12 How. Pr. 406), which was an action against the defendant 
 for an assault in attempting to kiss the plaintiff, evidence was given, to show a license, of 
 a vote taken in one of the cars occupied by an excursion party, and the court held that 
 plaintiff might show that she and her friends occupying another car were a distinct party 
 from the others. One who omits, while replying to parts of a letter received by him, to 
 deny statements on a subject of which he has knowledge contained in other parts of the 
 letter, is held to furnish some evidence of the truth of such statements. Fenno v. Weston, 
 31 Vt. 345. A party is bound by his silence, where in fairness he ought to have spoken ; 
 as illustrated in cases of estoppel. Tilton v. Nelson, 27 Barb. 595; Gregg v. Wells, 10 
 Ad. & El'. 90.) 
 
 If it be doubtful whether the party heard or understood the proposition to which his 
 silent assent is claimed, the jury maytdetennine this. Thus, where on a trial for an 
 assault and battery on ¥., a female, it appeared that she had in the same room with the 
 defendant, stated her case sufficiently loud for any one there to hear it, and appealed to a 
 third person for its correctness, who said it was correct ; and the defendant being consider- 
 ably intoxicated, said nothing to the statement ; held, it was right to receive tMs in evi- 
 dence against the defendant,. putting it to the jury whether he heard and assented to 
 what F. stated. State v. Perkins, 3 Hawks, 377. 
 
 Another fruitful ground of implied admission is, the receiving an account current of 
 dealings between the parties, and suffering it to lie without objection. The doctrine of this 
 and the like cases may be gathered from the authorities which follow. 
 
 Per Ld. Hutchins : " Amongst merchants, it is looked upon as the allowance of an account 
 current, if the merchant that receives it does not object against it in a second or third post." 
 Sherman v. Sherman, 2 Vern. 276. Again : ' ' There is no absolute necessity that an account 
 should be signed by the parties who have mutual dealings, to make it a stated ac- 
 *439 count. Even *where there are transactions, suppose b«tween a merchant in England 
 and a merchant beyond sea, and an account is transmitted here from a person who 
 is. abroad, it is not the signing which will make it a stated account ; but the person tp 
 whom it is sent keeping it by Yiim for any length of time, without making any objection, 
 Bhall bind him, and prevent .his entering into- an open account afterwards." Per Ld! 
 
360 A.dmissions by Parties, [ch. viii. 
 
 Hordwicke, in Willis v. Jeinegan, 2 Atk. 352. Again : " If one merchant send an account 
 current to anotlier in a different country, on which a balance is made due to himself, the 
 other keeps it by him about two years, without objection, the rule of this court and of 
 merchants is, that it is considered as a stated account." Per Ld. Har^wicke in Tickel v. 
 Short, 2 Ves. sen. 239. " It haa been often held that if a party receives a stated account 
 &om abroad, and keeps it by him for any length of time (one case says two years), with- 
 out objection, he shall be bound by it." Per Kent, Ch. J., in Murray v. Toland, 3 John. Ch. 
 Sep. 575. " When one merchant sends an account current to another residing in a differ^ 
 ■ent country, between whom there are mutual dealings, and he keeps it two years without 
 making any objections, it shall be deemed a stated account ; and his silence and acquies- 
 cence shall bind him, at least so far as to cast the onus probandi on him." Freeland v. 
 Heron, 7 Cranch's Rep. 147, 151, per Cur., by Duvall, J. In an action in behalf of 
 the consignor against the consignee, evidence was given that an invoice accompanied the 
 goods and remained many years without any objection being made by the latter ; and 
 Washington, J., held this to be evidence that all the articles had been received by the 
 consignee ; there being no proof to the contrary. Field's Assignees v. Moulson, 2 Wash. 
 , C. G. Eep. 155. In assumpsit, the question was whether the defendants were dormant 
 pa,rtner8 of B. & A. To prove this, the plaintiffs offered the accounts of B. & A., rendered 
 by them to the defendants, of joint purchases of goods. These, accounts having been 
 retained by the defendants without objection, the court held them admissible. Corps v. 
 Robinson et al., 2 Wash. C. C. Rep. 388. (An admission that a bill for goods sold is cor- 
 rect, is proof of their sale and delivery. N. Y. Ice Co, v. Parker, 21 How. Pr. 302.) 
 
 But this doctrine seems not in practice to have been received with regard to statements in 
 writing, other than accounts, nor in any other than mercantile dealings. Accordingly, 
 in assumpsit for money had and received, the plaintiff called for a letter written by him 
 to the defendant,, and offered it in evidence. He said certain things were stated in it 
 which the defendant might deny by answering it ; and submitted that it was evidence, 
 the same as what might be said in his presence and not contradicted. But, per Ld. Ten- 
 terden, C. J., " I am slow to admit that. What is said to a man before his face, he is in 
 some degree called on to contradict, if he does not acquiesce in it ; but the not answering 
 a letter is quite different ; and it is too much to say that a man by not answering a letter 
 at all events, admits the truth of the statements tliat the lettercontains. I am of opinion 
 that this letter cannot be read. Tou may have that single line read in which the plain- 
 tiff makes a demand of a certain amount ; but not any other part which states any sup- 
 posed fact or facts." Fairlie v. Denton, 8 Carr. & Payne, 103 ; Anthoine v. Colt, 2 Hall's 
 Rep. N. Y. S. C, 40 ; stated ante, note 117, S. P. Again ; the plaintiffs gave in evidence 
 against the defendant their written statement before the New York Chamber of Com- 
 merce, in order, to show that the defendant's answer contained an implied admission of 
 their charge. 'T'his was on a submission of their dispute to the chamber, whose practice 
 was that the party's answer should not be required until after he had seen the claim of 
 his adversary, but held inadmissible, because no direct proof was given that he had seen 
 the charge. La Farge et al. v. Kneeland, 7 Cowen's Rep. 456, 459. Nor, aemble, would it 
 then be admissible except to explain the answer. Id. 
 
 It is scarcely necessary to observe, that where the party himself furnishes an account 
 making against him, it is very satisfactory evidence as an admission. Such account is an 
 express admission, if signed ; and where it was not signed, yet being proved to be in the 
 defendant's handwriting, it was allowed to go to the jury against him. Jessup v. Cook, 
 1 Coxe, 434. So auy paper written by a party is evidence against him, though it be 
 signed by a third person. Best, C. J., said he would receive it as what the party writing 
 it had said. The effect was another thing. Alexander v. Brown, 1 Carr. & Payne, 288. 
 
 The admission of the party is often implied from the state of the pleadings in the cause, 
 
 as we shall see more at large in the subsequent pages, and when we come to treat of the 
 
 rule that the substance of the issue must be proved, which are the more proper places for 
 
 .considering the effect of the pleadings in working a confession or denial. In one case this 
 
 was carried so far, that going to trial without a rejoinder was construed into an 
 
 *440 absolute admission of the facts set *out in the replication ; and a verdict for the 
 
 defendant was set aside on this ground, though the attention of neither judge or 
 
 jury was called to the omission upon the trial. Porter's Adm'rs v. Konul, 1 M'Cordr205. 
 
 But a demurrer or plea to a bill in equity does not so admit the facts charged in it, as 
 
 to be evidence against the defendant in a future action, even between the same parties,' for 
 
 the party may still answer; and the plea merely declines to answer Tomnkins v 
 
 Ashby, 1 Mood. & Malk. 82, 33. i'«.i"s ■». 
 
 The admission of the party is often implied from liis acts, or those of his attorney or 
 
 counsel in the cause, before, pr in preparing for the trial, or from his or their conduct and 
 
 management upon the trial. 
 
 Thus, in an action for moii»y paid in defending a suit at the defendant's request, aver- 
 ring a judgment recovered against tho plaintiff of £42, a ca. sa. imprisonment and 
 payment thereon, the plaintiff &iled to prove any of the facts beyond tho recovery of the 
 judgment. But tho defendant having taken out a summons to be permitted to pay 
 .the above sum in discharge of the suit, this was held an admission whlcu dispensed with 
 
BEc. X.] Sy Demeanor and Conduct. 361 
 
 further proof. Williamson v. Henley, 8 Bing. 229. The defendant offered the plaintiffs, 
 claiming as assignees of a bankrupt, a debt against the defendant, to admit on the trial 
 every fact except the merits, saying all he wished to try was whether he was liable on his 
 undertaking, to which the plaintiffs acceded, and according to a farther stipulation 
 between the parties, forbore as a consideration to hold the defendant to bail. Held, that 
 he could not, on trial, dispute the formal facts necessary to show the plaintiffs to be regular 
 assignees. Davies v. Burton, 4 Carr. & Payne, 166. ■ 
 
 An adndssion.by the defendant's attorney, that the person of whom the plaintiffs claimed 
 to be assignees, had been duly declared bankrupt, precludes any call for the proceedings 
 under the commission, with a view to show that such person had not committed an act of 
 bankruptcy. Perring v. Tucker, 3 Moore & Payne. 557. A bill of particulars, delivered 
 under a judge's order, is an admission; and the defendant was allowed to use it as such, 
 and adopt a credit therein as proof oi part payment. Bymer v. Cook, 1 Mood. & Malk. 
 86, 87, note. But see Brittingham v. Stevens, 1 Hall's Rep. N. T. S. C. 379, contra. In an 
 action against the acceptor of a bill of exchange, where the defendant's attorney had given 
 notice to the plaintiff to produce all papers relating to the bill in question (describing it), 
 " which said bill was accepted by the said defendant," held that such notice was prima 
 facie evidence of the defendant's acceptance. Holt v. Squire, Ry. & Mood. N. P. Rep. 282. 
 
 But one party cannot use, as evidence, his own deposition in another action though it 
 was taken at the request of the other party in this action ; for it cannot be inferred from 
 his procuring the deposition, that he admits the statement it contained, though it was 
 intended to be used, and was filed by the other party in the former suit. Hovey v. Hovey, 
 
 9 Mass. Rep. 216. Nor would it be evidence as an admission against him, though he had 
 used it in the other suit. Martin v. Root, 17 Mass. Ikp. 222, 224, 227. See also Rex v. 
 Appleby and Melon v. Andrews, supra and post, of text. 
 
 On a former trial of this cause, the defendant gave in evidence a letter from the agent 
 of the lessor of the plaintiff which contained facts, the legal effect of which were against 
 the defendant. On a new trial, the plaintiff offered this letter as evidence, but the defend- 
 ant objected. The court held, that an offer of the letter on a former trial was an adniis- 
 sion of the facts contained in it, and received it on this ground. M'Glay's Lessee v. Work, 
 
 10 Serg. & Rawle, 194. So, where a book of field notes had at three several trials of the 
 same cause in the same court, been given in evidence by the plaintiff as the book of Qt., 
 without objection by the defendant that it was not Q.'a book ; but other grounds were 
 taken against its admission. On its being offered by the plaintiff upon a fourth trial, the 
 defendant objected that it should first be proved to be G.'s book. Held unnecessary, as 
 the case came within the rule of practice, that what is not denied is admitted, and to 
 specify some objections to evidence, waives all other objections not mentioned. Unger 
 v. Wiggins, 1 Rawle, 231, 235. So, where the plaintiff claimed under and gave proof 
 of title in C, the defendant insisted that the proof was not sufficient for that purpose ; but 
 then himself gave in evidence an act of attainder against C, by which he contended C. 
 was divested of his title. Held, this was an admission that C. had a valid title, and the 
 force of the attainder being afterwards done away, the plaintiff's title was complete. 
 
 Jackson ex dem. Swartwout v. Cole, 4 Cow. 587. Again ; in ejectment, the defend- 
 *441 ant at the trial claimed title by a *mortgage of the , locus in quo, executed by one 
 G., under whom the plaintiff also claimed. Held, that by the claim under the 
 mortgage, the defendant admitted title at the date of the mortgage. Jackson ex dem. 
 Hills V. Tuttle, 9 Cowen's Rep. 233. So, in ejectment, the plaintiff, in deducing his own 
 title, produced a deed reciting a judgment in virtue of which the defendant had a good 
 defense, and it was held an admission of that judgment, so that the defendant need not 
 produce the record. Qarner's Lessee v. Johnston, Peck, 24, 26. 
 
 But calling on the trial for the defendant's account, for the purpose of proving it incor- 
 rect, and reading it to the jury with that view, is no admission of its correctness. Gracy 
 v. Bailee, 16 Serg. & Rawle, 126. 
 
 After the trial, the case prepared as the ground of motion for a new trial, or the bill of 
 exceptions for a writ of error, are not evidence, it would seem, even on an after trial of the 
 same cause in which they are prepared, much less of another cause (Elting v. Scott, 2 
 John. Kep. 157, 162 ; Harrison's Devisees v. Baker, 5 Litt. 250, 252, 254 ; Bailor v. Smith- 
 ers, 1 Monroe, 6, 7) ; though held, the latter may be used to discredit a witness on a sec- 
 ond trial of the same cause. Bailor v. Smithers, 1 Monroe, 6, 7. 
 
 It remains to state some other acts and declarations which have been considered as con- 
 fessions, or equivalent to confessions, and some to which this character has been denied. 
 
 In a cause by Smith, plaintiff, against Middleton and others, Middleton caused a plot or 
 survey of the land in question to be made and returned favorable to the land claim of one 
 Reeves. The latter brought an action of trespass quare clausum fregit against Middleton, 
 and was allowed to give the plot in evidence as an admission of Middleton. Reeves v. 
 Middleton, 2 Har. & M'Hen. 414. So, in an action against a sheriff for taking insuflicient 
 suroties in a replevin bond, held, that his having assigned it to the plaintiff, dispensed 
 with proof of its execution. Edwards v. Etherington, Ry. & Mood. N, P. Rep. 268. A 
 petition of the corporate stockholders for a statute appointing commissioners, is evidence 
 of their assent to the statute. Com. of the Farm. & Mech. Bank of Shelbyville, v. Jar- 
 
 VoL. L 46 
 
362 Admissions by Pcmties, [cH. vm. 
 
 vis, 1 Mbnroe, 4. And, teriMe, the bond of a, guardian ^vea to his ward on his coming 
 of age, is evidence as a confession of what is due on the fonner bond given by the guard- 
 ian with sureties." Hamlin's Adm'r v. Atkinson, 6 Rand. 574. Answers to lost interroga- 
 'tories, in a bill or otherwise, may be read against the party as admissions, ». «., as some- 
 thing said or written by him, though by the loss, some part of the answer may bo 
 ■■Unintelligible. Howe v. Brenton) 3 Mann. & Ryl. 271 A man living on tract A. takes a 
 deed of another tract, described as bounding on A. ; this is evidence against him, in tha 
 nature of a confession, that tract A. did not cover any part of the last tract. Hathaway 
 Y. Spooner, 9 Pick. 23. Assumpsit for money lent, &c:, was brought more than six years 
 after the loan, but the defendant had given his note for the money to the plaintifis, and 
 within six years indorsed upon this note a promise to pay it. The note was void, as hav- 
 ing arisen out of an illegal discount,' but the loan was valid ; and this indoraemenf on the 
 note was holden a sufficient acknowledgment of the loan to take the case out of the Stat- 
 ute of Limitations. Utica Ins. Co, v.'Kip, 3 Wend. Rep. 369, 373. In an action against* 
 man as toll gatherer of a turnpike road, for improperly demanding toll, his shutting the 
 gate and making the demand, 'is an admission of his office, and sufficient proof of it. 
 Trowbridge v; Baker, 1 Gowen's Rep. 251. A man's confession that he is aBritish sub- 
 ject, is evidence against him to go to a jury that he is a British bom subject. Bex v, 
 Helsham, 4 Carr. & Payne, 438. ' In an action for striking the defendant's carriage against 
 the plaintiff's cart; it was held that what any one (the ladies for instance) in the defend- 
 •ant's carriage answered, on inquiry as to the address of the owner, was admissible 
 ■against him, but not a statement by them that any damage done would be paid for. Bea- 
 mon V. EUice, 4 Carr. & Payne, 585. 
 
 ■ But a naked declaration that oift intends to do an act, without any other proof of hia 
 having acted, is not admissible to show the act done. Bullock v. Beach, 3 Verm. Rep. 73. 
 Nor is a party's admission that heis now m possession of' certain premises, evidence of his 
 pdssessioh at any antecedent day. Tindal v. Whitrow, 1 Carr. & Payne, 32. An agree- 
 ment by the defendant to compromise a suit, by paying £100 and two-thirds of the plain- 
 tiff's costs ; and paying the £100, but omitting to pay the costs, held not to amount to an 
 admission of the original cause of action^ Lofts v. Hudson, 2 Mann. & Ryl. 481. And 
 what is set up as a mere excuse in a prisoner's examination, can never avail to support a 
 ■substantive averment in the indictment. Heath's Cases, 2 C. H. Kec. 54, before Radcliff, 
 M&.yor. An admissiolr that the defendant was the editor of a paper on the day when a 
 certain libel was published, was held not to be evidence of the same fact, continuing even 
 to a few days after. ' Macleod v. Wakely, 8 Carr, & Payne, 311. But guere. This case is 
 not in accordance with the rule, that the proof of a fact or relation, which is in its nature 
 of a continuing or enduring character, shall be prima foide evidence of the existence of 
 the same fact at a future day, and until a change shall be shown by the other side. This 
 rule will be considered and illustrated when we come to the doctrines of presumptive and 
 circumstantial evidence. But to continue. If a prisoner, in speaking of the testimony of 
 a witness who had testified against him on a former trial, say, " what C. (the witness) 
 swore was true, but he did not say all or enough," this is not admissible as a confession 
 of the prisoner, nor does it lay any foundation for proving what C. did swear to. Finn v. 
 The Commonwealth, 5 Rand. 701, On an issue of d,m,samit ml non, the defendants offered 
 proof that one of the devisees had, by various discoiirse, intimated that he had procured 
 the will to be ittade, and that it was read to him, and that he had given a reason why his 
 brothers and sisters got so small a portion. Held too loose an offer in not showing what 
 was said. Testimony could not be given in the form offered. It would not amount to an 
 admission of any'thing material or relevant. Miller v. Miller, 3 Serg. & Rawle, 367. A 
 devise that all the testator's just debts shall be paid, will not take a particular debt out 
 of the Statute of Limitations. Peck v. Bottsford, 7 Conn. Rep. 173. The wife's petition 
 to the Court of Probates, with the authorization of her husband, to be received as bene- 
 ficiary heir to her son, may be received to do away the effect of her plea of coverture to 
 an action against her as such heir for a debt of her son, by proving her acceptance of the 
 heirship with the husband's consent. Flower v. O'Conner, 8 Lou. Rep. (N. S.) 555. 
 
 The confession of a party as to the legal effect of his contract, e. g. that his agency under 
 a certain arrangement continued to such a time, cannot affect him ; and a fortiori, it can- 
 not affect others bound for him in respect of the agency. Boston Hat Manufactory v. 
 Messinger, 2 Pick. 333. So as to his legal rights in any respect. Polk's Lessee v. Robert- 
 son, 1 Tenn. Rep. 468 ; Craig v. Baker, Hardm, 381 ; Leforce v. Robinson, Litt. Sel. Cas. 
 23, 33 ; Moore v. Hitchcock, 4 Wend. 393. 
 
 Whether a man's deed delivered and remaining as an escrow, can be used against him 
 as a confession of the facts recited in it 7 Qusre. Lansing v. Gaine et al., 3 John. Rep. 800. 
 
 Where a cause was sought to be supported by conversations and admissions, so vague 
 and unsatisfactory that a jury would not have been authorized to found a verdict upon 
 them, held, that the court were right in nonsuiting the plointiffi Ward v. Vanduzer, 3 
 Hall's Rep. N. T. S. C. 162. 
 
 But where the declaration is equivocal in its object, the jury may sometimes determine 
 to what it refers. Thus, where a promissory note was signed by the defendant and one 
 A., and A. gave, in renewal of it, a note in wliich the name of the defendant was forged, 
 
&£c, X.J . Sy Acquiescence. 363 
 
 *442 *JSffe(A. of such, evidence. It very cpmmonly Ijappens, that evidence of 
 the description, referred to has the effeet of misleading juries, :who are 
 ^frequently influenced by it, in consequence of giving credit to it aa hearsay 
 testimony, and are unable, notwithatanding .any directions from, a 
 *443 jyidge, to regard it solely as. *exhibiting demeanor and copdupt. In 
 many instances, especially "where no observation, has been made hy 
 ,the party on. hearing ijb, t^e evidence is gartieularly liable to produce 
 erroneous conclusion^. An acquiescence in the truth of the statement is 
 ■frequently inferred, though the inference may, from a variety of, causes, be 
 incorrect. Thus the evi^fence is not only fallacious with reference to its 
 object, but in its cojllatera,l effect is prejudicial to the investigation of truths 
 The acquiescence of a party js still less entitled to consideratiop, .where , he 
 has no means of personally knowing the truth or falsehood of a statemen1/.(l) 
 This spe,cies of evidence is very commonly used in criminalcases, although 
 it appears, to be somewhal; inconsistent to hold, that the prisoner's silence 
 on hearing an accusation is evidence against him, when his denial of the 
 charge upon such an occasion would not be evidence for him. On the prin- 
 ciple that the evidence is received, not on the ground of credit given to the 
 hearsay narrative, but on the ground of its apparent effect in the prisoner's 
 .demeanor, it has been held, that what is said in ;the presence of' a prisoner 
 by a third party, or even by his wjfe, is receivable 'vx evidence against him. (2) 
 . : A notice to ^ quit at a q^rtain time is admissible as evidenqe that the ten- 
 ancy commenced at that period, if the notice was seryed personally on the 
 tenant, aiid if he made no objection to the time of : quitting mentioned in 
 the notice. (3) The circumstance of his not making such an objection has 
 been considered as prima faci6 evidence of admission and, acquiescence. 
 . But if the notice were not served personally, or the tenant did not look 
 i;it the notice, or could not read, there is no presumption of acquiescence. (4) 
 tJpon the same principle, upon an indictment for murder against A., for 
 9C^g as second in a duel, "syherein B. was killedj where.a, card had been 
 gm'en to a witness, either by the deceased or by another person, in the 
 presence of the prisoner, but ^tg conte^its were not shown tO; have been com- 
 municated to him, it was ruled that the card was^not admissible in evidence. (5) 
 The demeanor and conduct of a bankrupt, pending the investigation of 
 his accounts before commissioners of bankrupt, may amount to an admis^ 
 sion of a petitioning creditor's debt, though what was done .before the 
 commissioners did not derive any authority from its being done before 
 them as commissioners or as arbitrators. (6) It has been held that a trader, 
 
 and a suit was brought upon the foEged note, and the plaintiff galvfe in evidence declara- 
 tions and admissions of the defendant, tending to show an adoption of , this note, and to 
 take it ont of the Statute of Limitations, in one of which declarations he spoke of the suit 
 having been commenced ; held„ that the service of the writ did not raise ^'presumptioa 
 that the dec^laration related to the new note rather than the old one, withovrt evidence 
 that the defendant had knowledge of the new one or of the contents of the writ, and that 
 the burden was on the plaintiff to prove such knowledge ; and that it was proper for the 
 jury to determine, upon the whole evidence, to which of the notes the declarations and 
 admissions related. Phillips r. Ford, 9 Pick. 39. So whether a confession im]>orts a 
 joint or several debt. Accordingly, in an action for money as paid for another by one 
 alone, letters from that other are admissible in evidence for the single claimant, although 
 they indicate that tl>e money was paid by him and another jointly ; and it is for the jury 
 to say whether they do not show a debt due to the claimant alone. Ash v. Patton, 8 Serg. 
 & Kawle, 300. 
 
 (1) See by Parke, J., in Hayslep v. Gymer, 1 A..& E. 165, and by Fatteson, J., Id. 
 
 (3) R. V. Smithies, 5 C. & P. 333 ; B. v. Bartlett, 7 C. & P. 832. See B. v. Swatkins, 4 
 d. & P. 548 ; 1 Bast's P. C. 357 ; B. N. P. 28. 
 
 (3) Doe d. Leicester v. Biggs, 2 Taunt. 109 ; Doe d. Baker v. Woombwell, 2 Camp. 559. 
 • ' (4) Doe d. Ash v. Calvert, 2 Camp. 388, explained Id. 648 ; Thomas d. Jones v. Thomas, 
 2 Camp. 647 ; Doe d. Clarges v. Forster, 13 East, 405 ; Doe d. Leicester v. Biggs, 3 
 Taunt. 109. 
 
 (5) B. V. Douglas, C. & Marsh. 193. 
 
 (6) Jarrett v. Leonard, 2 M. & S. 269. 
 
■364 Admissions by Parties. [ch. vin. 
 
 *444 *hearing himself denied and not coming forward, thereby commits 
 an act of bankruptcy, if it be done with an intention to delay credi- 
 tors; but' not if done with a legitimate excuse, as that he was otherwise 
 occupied in impdrtant bu8inesS.(l) . 
 
 A party's forbearing from acts of ownership, and neglecting to interpose 
 whilst another person exercises 'such acts, or incurs expense in buildings or 
 alterations which are inconsistent with a title afterwards claimed, is evidence 
 for the jury in the nature of an admission of his own want of title. (2) But 
 the merely laying by and witnessing, for a length of ' time, a breach of 
 covenant, of which the landlord might avail himself as a forfeiture of 
 the lease, does not of itself amount to a waiver of the forfeiture ; some 
 positive act of waiver, such as the receipt of rent, is necessary for that 
 purpose. (3) 
 
 Although the silence of a party to whom, or in whose presence a stater 
 ment affecting his interests is made by the other party, may not be worth 
 much as evidence of acquiescence in the truth of such statement, still the 
 evidence should not be excluded. Thus, in an action brought to recover 
 bank notes delivered to the defendant by the plaintiff, the plaintiff proved 
 that the dfefendant, who was the executor of a deceased person, having 
 questioned the plaintiff as to her having possession of some property 
 belonging to the deceased, the plaintiff handed over the notes to the defend- 
 ant, stating that the deceased had given them to her; the defendant,' did 
 not deny the statement, but had no means of knowing its truth or falsehood ; 
 it was held, that although such evidence of acquiescence in the truth of the 
 Statement was an admission entitled to very little weight, yet that it was 
 properly submitted to a jury. (4) 
 
 In Fairlie v. Denton, (5) it was ruled by Lord Tenterden, C. J., that if 
 the plaintiff- write a letter to the defendant, which the defendant does not 
 answer, the plaintiff has no right to have the contents read at the trial, as 
 an admission from acquiescenca His Lordship observed, that what is giid 
 to a man before his face he is in some degree called on to contradict, irfte 
 does not acquiesce in it; but the not £^nswering a letter is quite 
 *445 *different ; and it is too much to say that a man, by omitting to 
 answer a letter, admits the truth of the statements which the letter 
 contains. It was held in the same case, that a line of the letter might be 
 read which contained a demand of a certain amount, but not any other part 
 which stated supposed facts. And, in a later case,(6) it was remarked by 
 Lord Denman, C J. : " It is a great def 1 too broad a proposition to say 
 that every paper which a man may hold, purporting to charge [him] with a 
 debt or liability, is evidence against him, if he produces it." 
 
 But if an account has been sent to a party, and kept by him for a length 
 of time without making any objection, it will, in ordinary matters of busi- 
 ness among merchants, raise an inference that the correctness of the account 
 
 (1) Smith V. Moon, M. & M. 460 ; Key v. Shaw, 8 Bing. 320. 
 
 (2) Doe d. Winckley v. Pye, 1 Esp. 864, 366 ; Neale v. Parkin, 1 Esp. 239 ; Stanley v. 
 'White, 14 East, 333. Concerning acts amounting to a recognition of lawful occupancy, 
 such as will be a defense upon an ejectment, see Doe d. Rogers v. CadwaUer, 3 B. & Ad.' 
 473; in which Doe d. Whltaker v. Hales, 7 Bing. 333, is doubted. As to cases between 
 landlord and tenant, where subsequent acts amount to a waiver of a notice to quit, see 
 Souch d. Ward v. Wlllingale, 1 H. Bl. 311 ; Jenner v. Clegg, 1 Moo. & R. 213 ; Goodright 
 d. Charter v. Cordwent, 5 T. R. 319 ; Doe d. Brinley v. Palmer, 16 East, 63 ; 37 Barb. 595. 
 
 (3) Doe d. Sheppard v. Allen, 8 Taunt. 78. See also Roe v. Minshall, B. N. P. 96 (c) : 
 Doe d. Flower v. Peck, 1 B. & Ad. 428 ; Amsby v. Woodward, 6 B. & C. 519 ; Goodright 
 d. Walter v. Davids, Cowp. 803 ; Doe d. Cheney v. Batten,' Cowp. 243 ; S. C, 9 East, 814, 
 n. ; Roe d. Grogsonv. Harrison, 2 T. R. 425; Doe d. Nash v. Birch, 1 M. if W. 402. 
 
 (4) Hayslep v. Gymer, 1 A. & E. 168. 
 
 (5) 3 C. & P. 103. See also Draper v. Crofts, 15 M. & W. 160, 168 : 7 Gray. Mass. 93. 
 
 (6) Doe d. Frankis v. Frankis, 11 A. & E. 796. 
 
SEC. X.] Statements made in their IVesence. 365 
 
 is admitted by the party receiving it.(l) And where an account was shown 
 to a party, who raised an, objection to one item of it, but made no remark 
 with resjiect to the rest, it was held to be evidence of an account stated, as 
 to those items to which no objection was made. (2) 
 
 There appears to be a distinction, also, as to statements made by persons 
 interested in the subject matter, and those made by a mere stranger. It 
 was stated by Best, C. J., (3) that what is said by a party to a suit to the 
 opposite party may be evidence, but not what is said by a third person, 
 unless it draws forth an answer ; and he Baid that the same distinction had 
 been made by Gibbs, C. J. The party before whom such a statement was 
 made might consider that it was impertinent, and that he was not called 
 upon to answer it. 
 
 Where reply not ea^ected. This distinction will apply a fortiori where a 
 statement is made^before a party, upon an occasion where a reply from him 
 could not properly be expected. 
 
 Where the conduct or demeanor of a person is pressed against him as 
 evidence of his admission or acquiescence, the situation in which he stood,, 
 and all the circumstances must be taken into accounts'- When a person is 
 charged with a crime, and hears a deposition made against him, his silence 
 is not evidence against him. In investigations of this nature, the person^ 
 charged has not the same facility of interposing as he -would have in a 
 common conversation, and therefore the same inferences cannot be dr'awn 
 
 from his silence or his conduct. (4) 
 *446 *So in an action of assault, what was said by a magistrate to the 
 plaintiflf, at a previous investigation of the circumstances before him, 
 cannot be received at the trial on the part of the defendant, unless it drew 
 any observations in reply from the plaintiff. (5) 
 
 But in an action for a libel contained in a handbill, offering a reward for, 
 the recovery of certain property, and stating that the plaintiff was suspected 
 of having stolen it, evidence is admissible on behalf of the defendalnt, whc^ 
 had published the handbill, that he had followed it up by preferring "a 
 charge of the same nature against the plaintiff before a magistrate, and the 
 statements made by the defendant on that occasion, in the presence of 
 the plaintiff, are also admissible. (6) "The question," observed Tindal, C. 
 J., "will be, what was the animus of the publication? and this evidence 
 is tendered on the ground that it will show that the defendant, in publish- 
 ing this placard, acted bona Jide, for that he did afterwards prefer a charge 
 of the nature contained in it. Whether the charge preferred will support 
 this inference must depend on the particular nature of it; we must, there- 
 fore, hear its particulars to know how far it corresponds with the imputation 
 in the handbill. It is for this purpose, and for this purpose only, that Ii 
 receive it — not as evidence of the facts contained in the charge, for which 
 purpose it was tendered in Melen v. Andrews."(7) 
 
 It -will have been observed, that the exclusion of statements made in the 
 presence of a party, in the cases just referred to, depends upon the fact 
 
 (1) Willis T. Jernegan, 2 Atk. 253 ; Tickel v. Short, 2 Ves. sen. 239. See also Sherman 
 v. Sherman, 2 Vera. 276. 
 
 (2) Chisman v. Count, 2 M. & G. 307. 
 
 (3) In Child v. Grace, 2 C. & P. 193. 
 
 (4) Melen v. Andrews, M. & M. 337 ; E. v. Appleby, 3 Stark. R. 33 ; Short v. Story, cit. 
 Eosc. Ev. 38 ; B. v. Turner, 1 Moo. C. C. 347, 
 
 Hersey v. Barton, 23 Vt. 685; Lawson v. Tha State, 20 Ala. (N. S.) 65. If a direct stato-, 
 ment of fact is made in his presence by a third person, relating to the matter in 
 conuoversy, and he remains silent, it may be given in evidence against him. Boston it 
 Worcester Railroad v. Dana. 1 Gray (Mass.) 83. 
 
 (5) Child T. Grace, 2 C. & P. 193. 
 
 (6) Finden v. Westlake, M. & M. 461. 
 
 (7) Ut supra. 
 
366 Admissions by Partus: [ce. vin. 
 
 that the party could not reasonably be expeieted to reply to them; >and that' 
 the rule of exclusion is expressed -with the' limitation that the partv does' 
 BOt, in fact, reply to them ; if he does so,' and his reply directly' or indirectly 
 admits the truth of the statietilents, they become, in connection with his' 
 reply, evidence agaiinst him. (1) 
 
 Mipri^. in books accessible to party. In some cases the possession of 
 documents, (2) or thp circumstance that a party Tias access to them, has 
 been considered as a ground for. affecting him with the admission of the 
 facts stated in them. Thus, in an action by a taven keeper, it appeared 
 that the defendant belonged to , a qlub, which was held at the plaintiff's 
 house, and that, in a room where the club met, a book used regularly to, be 
 < kept open, in which the plaintiff's servants entered the articles, as 
 *447,, they were ordered by the memljers of the club, *who had hereby an 
 I ; , opportunity of inspecting and correcting the account. Lord Ken yon, 
 C. J., admitted the book as evidence of the delivery of the articles, though, 
 i^, was not: proved that thp servant^ who made the entry were, dead, nor 
 was their absence accounted for, and only their hand'writing was proved., 
 The daily account in the /book was inrthis case cpnsidered as tantamount to. 
 a, bill , delivered and .admitted by the dtfendaiit.(3) So, after a person was 
 proved to be a member of a society, the entries in a book containing a record, 
 9f the proceedings of the society {the book being produced at the meetings, 
 and open to, the mspection of all the members) -nfere held to be admissible, 
 against him. (4) Apparently, upon the same principle it has been held, that 
 ^n entry in the books of the South Sea Company, of the minutes, of a license 
 granted by them, was admissible, in evidence, without calling as a witness 
 the officer who made thg entry. (5) 
 
 (1) ( Jhild V. Grace, 2 C. & P. 193 ; R. v. Edmunds, 6 C.'& P.164; Jones v. Morrell, 1 C. 
 & Kir. 266. ; ' 
 
 (3) See Hewitt v^ Piggot, 5 C. & P. 77; Roe d, Brune v. Rawlins, 7 East, 290. , ' 
 
 (8) Wiltzie v. Adamson, K.iB.rSitt., after Mich. Terni, 1789. And see Alderson v. Clay,, 
 1 Stark. R, 405. 
 
 ■ (4) Raggett v. Musgrove, 2 C. & P. 556. 
 ' (5) Hodgson v. Pull^rtori, 4 Taunt. 787. 
 
 Note 128.-^ Union' Bank' of Maryland v. Ridg^y, 1 Harr. & GUI, 334, 430, 431. In an 
 action fof money had and received, by. a bank against a depositor .'who hadoverdrawn, tber' 
 books of the bank are coinpetent evidence to show receipts and payments of money ; and, 
 if the clerk who made the entries be dead, or insane, the book in which the entries aro 
 lUade is admissible, on proving his handwriting. The blank bboks are the more proper 
 as evidence, because the bank furnishes copies to its depositors'; and the ofiScers are agentji 
 for both parties, and bound to submit the books to the depositor for inspection at all proper 
 tiines. Union Bank V, Enapp, 3. Pick. 96, 108;, Jermainv, Denniston, 2 Seld. 376. The, 
 officers are clearly agents of the bank, and their , entries of deposits in a dealer's bank 
 book, made at the time of th? deposits, are very strong evidence, if not Conclusive, on the 
 tiank. 'But if the book be sent to be' 'written up afterwards, the entry is not so strong as 
 avideince ;. and may be more freely examiined. In the former case, it is said to be an origin 
 nal entry, and conclusive on the bank. ; Per Spencer, J.,, in Manhattan Co. v. Lydig, 4 
 John. Rep. 389. Bt^t.the officer, though the agent of the bank, is not the agent of the 
 depositor for this purpose, who may, therefore, show a mistakej though the bank have a 
 by-laiT requiring that the payment should be examiheld at the time. This cannot bind 
 strangers. Mechanics and Farmers' Bank in the City of Albany v. Smith, 19 John. Rep. 
 115; White v. Ambler, 4 Selden, 170. And these cases are not incompatible with the 
 Union Bank v. Knapp. The officers may well be considered the depositor's agents for* 
 the purpose of subtaiitting their books to his inspection, but not such in the act of enter- 
 ing the deposit in his book. Because a man is agent for one purpose, it does not follow 
 that he is s<* for another. Nor is an entry, though made by the party hiinself. In general 
 conclusive upon hiin. Thus, though he charge articles on his books as sold to only onef 
 of t'wo partners, he- may yet show that they came to the use of the two as a firm, and 
 recover of both. RieWrdBcin v. Humphreys, 1 Ala. Rep. 383. Again; on a question 
 whether the undertaking of a third person to pay was Original, 'or collateral, and there-' 
 fore within the Statute of Frauds, it appeared that the' plaintiff charged the ^oods in 
 account to B., adding "guarantee of E." (the defendant), who had promised to be respon- 
 sible for goods to be furnished to B. by the plaintiff. Thfe court held this not conclusive 
 that credit was given to B. ; but that it should go to the jury in connection with other 
 
EEC. X.] Miiries in Booha Accessible to Party. 367 
 
 *448 *Tho«gh the rolls of a manor are acces&ible to all the copyholders, ^t 
 in questions between them and the lord of the manor, it would seem 
 that entries on the rolls of the manor are not generally evidence against 
 them by way of admi8sion.(l) But in questions as to manorial customs 
 between copyholders, or between copyholders and striingers, it seems that 
 entries on the rolls of the manor, besides being evidence of reputfition, inde- 
 pendently of any weight they may derive from being' admissions, are, also, 
 upon this ground, entitled to some additional force. (2) 
 
 WHtings in possession of prisoner. The possession of letters and written' 
 
 papers by prisoners may affect them with the imputation of approving 
 
 *449 or acting in the matters contained *in them. But' for this purpose' 
 
 it is necessary that the jury should be satisfied that the letters or other 
 
 drcumBtanceB. Elder y. Warfield, 7 Harris & Johnson Bep. 391. And so, it is pTesmned,. 
 in general of a credit given on book even at the time of the payment. In the Manhattan 
 Co. V. Lydig {supra), Spencer, C. J., agrees that this is generally so, though he puts a 
 simultaneous entry of a deposit in a customer's bank book, as an exception. The history 
 and use of thid bank book is given in the case. The entries seem to be equivalent td a 
 written receipt of the sum and a promise to pay, upon the faith of which the customer 
 draws his checks, &c., or bills of exchange. The dictum isi hotrerer, in any view, a very 
 strong one, when we reflect that even a promissory note may be impeached for mistake 
 between the original parties, and destroyed oir reduced, as the failure of consideration 
 shall appear to be total or partial. The case does not appear to stand exactly on any of 
 the grounds upon which erroneous admissions have been holden to conclude, though 
 placed among that class of admissions, pOat, upon the strength of a dictum emanating 
 from such a distinguished judge. See also, M'Dowall v. Lemaitre (3 M'Gord, 320); as to 
 the force of a party's entry, when it conflicts with his receipt in full. (In an action by the 
 husband against the party to whom the wife's bank account has been transferred, ths 
 books of a savings bank are adiflissible in evidence, the entries therein being made against 
 the interest of the bank. McKavlin v. Bresslin, 8 Gray, Mass. 177 ; Union Bank v. Knapp, 
 S Pick. 96. A savings bank has a right to make a rule requiring the production of the 
 depositor's book when he draws his money ; and in such a case the non-production of 
 the book must be accounted for, or he cannot draw his money, Warhus v. Bo-v^ery Sav- 
 ings Bank, 5 Duer, 67 ; 21 N. Y. 548.) 
 
 Again ; " although the book of an individual is not evidence in his favor against others; 
 yet, from the very nature of the case, the books of a partnership must be evidence between 
 the partners themselves. Their situation is one of confidence. Tliey agree to unite, and 
 as to others to become one person ; and the books of the firm are to speak their language 
 and to record their joint transactions ; and there is an understanding that, these books are 
 to be appealed to, to tell their true situation. To admit them as evidence, then, is only: 
 effectuating their agreement, and using'their own criterion and test, to ascertain the truth. 
 Such books, therefore, kept subject to the inspection of each, must be admitted as correct 
 tm the contrary is shown." Per Judge Mills, delivering the opinion of the court in Simms 
 T. Kirtley, 1 Monroe, 80. These principles have often been acted upon, both in chancery, 
 on taking an account between' partners before referees or masters, where it is holden that 
 the mere entries are prima facie evidence without vouchers or other proof (Fletcher v.' 
 Pollard, 3 Hen. & Munf. 544, 549, 550 ; Jordan v. White, 4 Mart. Lou, Kep. (N., S.) 335, 
 339 ; Heartt v. Coming, 3 Paige, 666) ; and before auditors in an action of account. Biick- 
 house V. Hunter, 4 Hen. & Munf. 363. And in trover for a boat purchased by the plaintiff 
 of a retiring partner, in 1827, against the defendant, the acting partner of the firm, his 
 own entry in the common book, dated in 1836, during the continuance of the partnership, 
 charging himself with the boat, was allowed as evidence in his favor to prove a sale. 
 Bono V. Crane, 2 Blackf. Bep. 817. The ordinary presumption is, that all the partners 
 have access to these books, and know the entries which they contain. Bui this is a pre* 
 sumption from the ordinary course of business.andmay be rebutted by circumstances 
 leading to the contrary presumption, such as a distance of residence, or a peculiar course 
 of business precluding access. United States Bank V. Binney, 5 Mason, 176, 188. See, 
 also, Taylor v. Herring, 10 Bosw. 447. 
 
 In one ca«e, the plaintiff having proved that B. & S. were partners, which was the onljr 
 question, by an out-door clerk of S., who had not made any entries in his book, the defend* 
 ant was allowed to prove the books of^., is order to contradict and impeach the credit of 
 the witness. Moyes v. Brumaux, 3 Yeates, 30. 
 
 (1) Ely (Dean and Chapter) v. Caldecott, 7 Bing. 483. 
 
 (8) See infra, as to the admissions of persons in pari jure. See also GUb. Ev. 235 • 1 T 
 K. 466 ; 3 Id. 162 ; 4 Id. 670 ; 5 Id. 26 ; 13 East, 10 ; 8 M. & S. 92 ; S Wils. 63 ; 10 M. & W. 318." 
 
368 Admissions hy Patties, [ch. tiii. 
 
 writings were in the possession of the prisoners previous to their apprehen- 
 sioni(lj 
 
 Admissions in civil cases In an action by a bankrupt against his 
 assignees, depositions of persons enrolled by the assignees are not evidence 
 against them as admissions by reason of the enrollment. (2) A feoffment 
 having an indorsement of livery of seizin, is not evidence of the fact against 
 the person producing the 4eed from his custody. (3) 
 
 Although partnership books are evidence against partners as their acts 
 and declarations (the books having been under their superintendence,) yet 
 the books of a corporate company are not admissible against a member 
 of the qompany, as evidence of his contracting with the company ; in that 
 reject, he is to be regarded as a stranger. (4) 
 
 It may be laid down in general terms, that if a party for any purpose 
 produces a document containing certain statements, such statements are, 
 as against him, evidence of the facts which they contain. (5) Thus, if a 
 party, on a motion before a judge, use the aflSdavit of another person, such 
 affidavit is, on any subsequent occasion, admissible as evidence against him 
 who so used it ; even upon a trial when the person who swore the affidavit 
 is present in court, and is not called. (6) The affidavit of an agent, used by 
 the defendant for the purpose of putting off a trial, may be used against 
 the defendant. (7) The making use of an affidavit is an admission, which 
 supersedes the necessity of proving that it has been sworn or signed. (8.) 
 
 A deposition, as to an act of bankruptcy, made by a person employed by the 
 
 defendant's solicitor, and upon which the fiat issued, is admissible against 
 
 the defendant (the petitioning creditor) in an action by the assignees of the 
 
 bankrupt. (9) The deposition is evidence, as much as if it had been 
 
 *450 *made by the defendants themselves ; they sent the person for the 
 
 purpose of making it, and they adopted it. (10) 
 
 It must appear, however, that the party who uses an affidavit or deposi- 
 tion was, or might have been, aware of its contents at the time : otherwise 
 they will not be evidence against him. Thus, depositions used by a party 
 in an equity suit, cannot afterwards be produced against him on a trial, if 
 the person making them might be called ;(ll) for a party who uses such 
 
 (1) See R. V. Tooke, 25 How. St. Tr. 130, 131, 133 ; R. v. Watson, 2 Stark. R. 140 ; S. C , 
 32 How. St. Tr. 349, 351 ; R. v. Barratt, 9 C. & P. 387. Letters found on the prisoner 
 were not admitted as evidence against him on the trial in People v. Green, 1 Park. Cr. 11. 
 
 (2) Chambers v. Bemasconi, 1 C, M. & R. 347. 
 
 (3) Doe d. Wilkins v. Cleveland (Lord), 9 B. & C. 870. 
 
 (4) Hill V. Manchester Waterworks Co., 3 B. & Ad. 545. 
 
 See Kearns & al. v. Kearns' Ex'r, 4 Harring. (Del.), 83. The books of a bank are not 
 of themselves evidence against its customers. White v. Abler, 4 Seld. 170 ; Bank of 
 Monroe v. Culver, 3 Hill, 535 ; Brewster v. Doane, Id. 557. 
 
 (5) By Patterson, J., in Brickell v. Hulse, 7 A. & E, 457. 
 
 (6) Brickell v. Hulse, 7 A. & B. 454. See also Sacheverell v. Sacheverell, Bac. Ab. tit. 
 Evidence, 638 ; Vicary's Case, Id. 633 ; B. N. P. 238. 
 
 (7) Johnson v. Ward, 6 Esp. 47. 
 
 (8) Cameron v. Lightfoot, 3 W. Bl. 1190. 
 
 (9) Gardner v. Moult, 10 A. & E. 464. (The affidavit of a party, made in a proceeding 
 to obtain a discharge from his debts as an insolvent, is admissible but not conclusive 
 against him in an action to recover one of the debts included in the schedule so verified 
 by him ; the affidavit will not overcome a prior release of the debt, it appearing that both 
 parties practiced a fraud on the other creditors. Maybee v. Snlffen, 3 E. D. Smith, 1. An 
 affidavit made on an application for an attachment cannot be used as evidence of any 
 fact on the trial between the parties ; it can only be used to give the justice jurisdiction 
 to issue the attachment. Olute v. Fitch, 35 Barb., 438. 
 
 Where the plaintiff in an action for malicious prosecution introduces affidavits made by 
 the defendants, and laid before the Grand Jury, the statements therein favorable to the 
 defendants are rendered evidence in their favor. Scott v. Simpson, 1 Sand., 601.) 
 
 (10) By Littledale, J., Id., p. 468. 
 
 (11) Bushworth v. Pembroke (Countess), Hardr. 473. 
 
SEC. X.J Documents Produced hy Party. 369 
 
 depositions does not know beforehand what they are.fl) In like manner, 
 the evidence of a party called at Nisi Prius does not bmd the party calling 
 him. (^2) 
 
 It has been held, in an action of trespass, that the defendant may use as 
 evidence the deposition of a witness, formerly called by the plaintiff, to 
 prove his possession, in a proceeding before justices for an alleged trespass 
 on the same close, even though the witness is still alive. (3) In this case, 
 however, the witness was abroad, and his previous te^imony would seem 
 to be admissible upon a principle to be discussed hereafter, which regulates 
 the reception of evidence given in a previous investigation of the same sub- 
 ject matter between the same parties. (4) 
 
 The inscription on a stage coach, of the name of the party licensed to 
 use it, is evidence of ownership against the person so named, who uses the 
 coach, as well in an action as on summary proceedings. (5) And, generally, 
 whatever is written by a party may be used as an admission agamst him, 
 though it be not signed by him. (6) 
 
 It has been held that, where a defendant signed an admission of a debt, 
 to enable an attorney to prove it under a commission of bankruptcy then 
 subsisting against him, it was not an admission of the delivery of a signed 
 bill by the attorney, and did not dispense with the necessity? of proof of 
 the delivery of such a bill, in an action subsequently. brought for the same 
 claim,(7) because the bill might have been proved under the commission 
 without being delivered. 
 
 The method in which parties have treated a subject frequently affords 
 evidence, in the nature of an admission, when such treatment is 
 .*-451 inconsistent *with the claims asserted by them, although it be not 
 (as in the cases before noticed) to be taken as an acquiescence in the 
 acts of another person. Thus, in an ^action of debt, evidence that the plain- 
 tiff has taken the benefit of the Insolvent Act, and has not inserted the 
 debt in question in his schedule, is an admission of its not being due. (8) 
 Where a tradesman makes out an account for goods sold, in the name of a 
 particular person, it must be taken that they were furnished upon the credit 
 of such person, unless it be shown, by unequivocal evidence, that the 
 credit was, in fact, given to another. (9) 
 
 A promise by the drawer of a dishonored bill to pay the same,(10) or an 
 acknowledgment of his liability upon it,(ll) is equivalent to an admission 
 that he has received due notice of dishonor, and, in the case of a foreign 
 bill, of its having been duly protested. (12) So, even if the drawer disclaims 
 his liability upon the bill, but does not rest his defense upon want of notice, 
 
 (1) By Lord Denman, C. J., in Brickell v. Hulse, 7 A. & E. 457. See also E. v. Latch- 
 ford, 6 Q. B. 567. 
 
 (2) By Lord Denman, C. J., and Coleridge, J., in Brickell t. Hulse, 7 A. & E. 457, 458 ; 
 By Lord Denman, C. J., in Gardner v. Moult, 10 A. & E. 468. (Thompson v. Blanchard, 
 4 Comst. 303.) 
 
 (3) Cole V. Hadley, 11 A. & E. 807. 
 
 (4) Post, Vol. II, Chap. Of the Admissibility of Depositions. ♦ 
 
 (5) Barford v. Nelson, 1 B. & Ad., 571. 
 
 (6) Alexander v. Brown, 1 C. & P. 288. See Harding v. Crethorn, 1 Esp. 57, as to the 
 effect of a signature as evidence of notice of the contents of a written instrument. 
 
 (7) Eicke v. Nokes, M. & M. 303. 
 
 (8) Nicholls V. Downes, 1 M. & Ro. 13. See Hart v. Newman, 3 Camp. 13. 
 
 (9) Storr v. Scott, 6 C. & P. 241 ; Thompson v. Davenport, 9 B. & C. 78, 86. 
 
 When the party to whom a detailed account is presented makes no objection to it, the 
 account iss under ordinary circumstances, treated as being by acquiescence i a stated 
 account. Freeland v. Heron, 7 Cranch, 147 ; Bruen v. Hone, 3 Barb. 586 ; LockWood v. 
 Thome, 1 Kernan E. 170. As to what evidence is admissible to show a sale on the credit 
 of the defendant, see Bronner v. Frauenthal, 9 Bosw. 350. 
 
 (10) Lundie v. Eobertson, 7 East, 331. 
 
 (11) Hicks V. Beaufort (Duke), 4 N. C. 239 ; BrowneUv. Bonney, 1 Q. B. 39. 
 
 (12) Campbell v. Webster, 2 C. B. 258; Patterson v.Seecher, 6 B. Moore, 819. 
 
 Vol. I. 47 
 
370 Admissions hy Parties. [ch. viii. 
 
 but upon a different ground, this may be taken as an admission that he had 
 received notice. (1) 
 
 Upon the same principle, where relief has been given by a parish to a 
 pauper while resident in another parish, it is evidence of an admission that 
 fc is settled in the relieving parish. (2) But relief to a })auper resident in 
 the relieving parish is no evidence of a settlement therein, for the pauper 
 would be entitled to relief even as casual poor. (3) 
 
 Where a party has acknowledged himself guilty of a nuisance in the 
 carrying on a particTilar business in one place, this is evidence against him 
 as an admission, upon the trial of an indictment for carrying on the same 
 business at another place. (4) 
 
 In one cas4', an admission of a demand, made by a defendant when he was 
 arrested, and when he might be supposed to be ignorant of his rights, or 
 whether he was bound by few to pay the demand or not, was ruled by Lord 
 Kenyon, C. J., not to be sufficient evidence to charge him. (5) 
 
 *452 *Whent?ie matter involves late as well as fact. Where admissions 
 involve matters of law as well as matters of fact, they are obviously^ 
 in many instances, entitled to very little weight, and in some cases they 
 have been altogether rejected. Thus, it has beeii held, that the discharge 
 of a defendant by a court of quarter sessions, under an insolvent act; could 
 not be established by proof of an acknowledgment of the discharge Toy the 
 plaintiff himself, for the discharge might have been irregular and void, or 
 might have been mistaken by the plaintiff. (6) 
 
 The question, whether an admission as to the status of marriage is receiv- 
 able in evidence against the party making such admission, appears properly 
 to depend, not only upon whether the party had means of knowing the fact, 
 but also whether the admission was made deliberately and advisedly. 
 
 Admissions of marriage in prosecutions for bigamy. Thus, upon an 
 indictment for bigamy, (V) it was held that proof of the prisoner's cohabiting 
 with and acknowledging himself married to a former wife then living, such 
 assertion being backed by his producing to the witness a copy of a proceed- 
 ing in a Scotch court, against him and his wife, for having contracted the 
 marriage improperly (the marriage, however, being still good according to 
 that law), was sufficient evidence of the first marriage; and upon such evi- 
 dence, together with due proof of the second marriage, the prisoner was 
 
 (1) Wilkins V. Jadis, 1 M. & Eo. 41 ; Curlewis v. Cornfield, 1 Q. B. 814. 
 Tibbetts v. Dowd, 33 Wend. 379 ; and Edwards on Bills & Notes, 650-655. 
 
 (2) K. V. Barnsley, 1 M. & S. 377, 380 ; E. v. Wakefield, 5 East, 335 ; E. v. Stanley, 15 
 East, 350; B. v. East Winch, 12 A. & E. 697; E. v. Yarwell, 9 B. & C. 894; E. v, Carnar- 
 vonshire, 2 Q. B. 325 ; B. v. Crondall, 2 Sees. Ca. 667. See also E. v. Edwinstowe, 8 B. & 
 C. 671 : E. V. Bedingham, 1 Cess. Ca. 114. 
 
 (3) E. V. Chatham, 8 East, 498 ; E. v. Trowbridge, 7 B. & C. 252 ; R. v. Coleorton, 1 B. 
 & Ad. 25 
 
 (4) E. V. Neville, Peake N. P. C. 91. 
 
 (5) Rouse V. Eedwood, 1 Esp. 155. According to the report. Lord Kenyon, C J., said ; 
 " Such admission shall not be allowed to be given in evidence to charge him ; the marginal 
 note also states that an admission made under such circumstances is inadmissible evidence 
 to charge the defendant; and the case is usually cited as an authority for that position. 
 Bat it appears that the evidence was in fact admitted ; and Lord Kenyon's observation 
 must be understood as applying to its effect, and not to its admissibility. 
 
 (6) Scott V. Clare, 3 Camp. 236 ; Summerset v. Adamson, 1 Bing. 73 ; Morris v. Miller, 
 Burr. 2057 ; Bush v. Hewett, 4 N. Y. Leg. Obs. 884 ; 4 Wend. 292. 
 
 Wakfifield v. Crossman, 25 Vt. 298 ; Crockett v. Morrison, 11 Mis. 8 ; Brewster v. Striker, 
 2 Comst. 19. 
 
 (7) Trueman's Case, 1 Euss., Cr. & M., by Greaves, 217, 218. 
 
 The mere confession of the prisoner is not sufficient evidence of the former marriage 
 (The People v. Humphrey, 7 John. R. 814) ; nor is such confession sufficient when accom- 
 panied by proof of cohabitation and reputation. Gahagan v. The People, 1 Parker C. R. 
 378. See Fleming v. People, 27 W. Y. 829, post, p. 823. As to what evidence ia sufficient 
 to prove a marriage in civil suits, see 15 New York State Rep. 345. 
 
SBC. X.] J^ect of Admissions, Mtoppels. 371 
 
 convicted. The point being reserved for the opinion of the judges, they all 
 (with the exception of two who were absent) held the conviction proper. 
 Two of them observed, that this did not rest upon cohabitation and bare 
 acknowledgment, for the defendant had* backed his assertion by the pro- 
 duction of the copy of the proceeding ; but some of the judges thought that 
 the acknowledgment a.lone would have been sufficient, and that the paper 
 produced in evidence was only a confirmation of such acknowledgment. 
 
 Where, also, it was proved that the prisoner, being charged with bigamy, 
 
 had made a statement before a justice, in which he expressly declared 
 
 *453 that *he had married his first wife, who was then present, Erskine, 
 
 J., admitted the evidence, observing that this was not an incautious 
 
 statement, made without due attention, but that the prisoner's mind was 
 
 directed to the very point by the charge made against him.(l) 
 
 So, in a similar case, the prisoner's declarations, deliberately made of a 
 prior marriage in a foreign iiountry, were held by Wightman, J. (after con- 
 sulting with Creswell, J.),'to be sufficient evidence of such marriage,fP'ithout 
 proving it to have been celebrated according to the law of such country! (2) 
 
 ^E^ect of admissions, estoppels. With respect to the efiect to be attri- 
 buted to admissions, it is to be observed that proof of- a party to the suit 
 having made representations of facts for particular purposes and on particu- 
 lar occasions, may preclude him from relying ■<)n a case which is inconsistent 
 with those representations; thus operating as an estoppel. The kind of 
 representations which' have been held to have this effect, seems, for the 
 most part, to be where, on the faith of them, a court of justice has been 
 induced to adopt a particular course of proceeding, or where other persons 
 have on the faith of the representations, been led to alter their condition. 
 In some of the cases, the courts appear to have considered that the general 
 rules respecting the qualities of estoppels did not apply to representations 
 of the nature in question. In others, the representations have been treated, 
 for some purpose at least, as a branch of estoppels, properly so called, and 
 it has been held that, as being estoppels, they were not receivable in evi- 
 dence, except between parties and privies. 
 
 The rule upon the subject has been laid down in these terms ;(3) "The 
 express admissions of a party to the suit, or admissions implied from his 
 conduct, are evidence, and strong evidence against him ; but he is at liberty 
 to prove that such admissions were mistaken or were untrue, >and he is not 
 estopped or concluded by them, unless another person has been induced by 
 them to alter his condition ; in such a case, a party is estopped from disput- 
 ing their truth, with respect to that person and those clamiing- under him ; 
 but as to third persons he is not bound."(4) In a recent case,(5) Lord 
 Denman, C. J., in giving the judgment of the court, laid down the doctrine 
 as follows : " The rule of law is clear, that, where one, by his words or 
 conduct, willfully causes another to believe the existence of a certain state 
 of things, and induces him to act on ^hat belief, so as to alter his own 
 *454 previous position, the former is concluded from averring *against 
 the latter a different state of thingis as existing at the same time." 
 And on a still later occasion, (ff) his Lordship observed, that the principle. 
 
 (1) R. V. TTpton 1 Ruas.. Cr. & M., by Greaves, 318. 
 
 (2) R. V. Newton, 3 Moo. & R. 503 ; S. C. rum. R. v. Simmonsto, 1 C. & K. 164. See 
 the Chapter on Presumptive Evidence, post. 
 
 (8) In Heane v. Rogers, 9 B. & C. 576, 586. 
 
 (4) See also Graves v. Key, 3 B. & Ad. 318, n. 
 
 (5) Pickard v. Sears, 6 A. & B. 469, 474. 
 
 (6) In Gregg v. Wells, 10 A. & E. 90, 97. See also Harrison v. Wright, 13 M. & W. 830, 
 ' Note 139. — This head of admissions ought not to be dismissed without a more direct 
 
 and enlarged attention to their effect, as depending upon the manner, or the various cir- 
 cumstances under which they are made. 
 ' It will be Observed by looking at different heads of our author in this, his first volume. 
 
372 Admissions by Parties. [ch, viii, 
 
 and the notes to those heads, that an admission is made first, with a view to evidenfce, 
 teeondly, with a view to induce others to act upon the representation, or thirdly, it is an 
 unconnected or casual representation. 
 
 First, the rule hardly admits of an exception, that a party cannot contradict, by evi- 
 dence at the trial, what the pleadings theWaelves admit in the very cause on trial ; nor 
 can the jury find any fact contrary to those admissions. This rule, with cases in which 
 the pleadings are, and are not so framed as to work an admission, are considered, post, of 
 the text, which see in connection with the notes. 
 
 Another very common instance is a stipulation by the attorney on record, to admit cer- 
 tain facts upon the trial of the cause. The mode and effect of such admissions are con- 
 sidered by our author, post. It will be seen there that such an admission is conclusive. 
 Alton V. Gilmanton, 3 N. H. Kep. 520, S. P. And where the defendant offered to the plaint- 
 iffs (at a private meeting) to admit on the trial all the formal proofs to entitle the 
 plaintiffs to sue as assignees, in consideration that he should not be holden to bail, which 
 was acceded to ; held, that he was bound by such accepted offer, and could not, on the 
 trial, retract it. Davies v. Burton. 4 Carr. & Payne, 166. The party, of course, comes 
 unprepared with other evidence of the facts admitted ; and to allow their existence to be 
 controverted would be to entrap him. And it is the same with an oral admission of coun- 
 sel on the trial of the cause. Thus where the action was on a policy upon a ship, war- 
 ranting that the assurers should take all risk of seizure on account of any illicit or 
 prohibited trade, except seizure ire port /or i/josi cause; on the trial, the counsel for the 
 assurers admitted a seizure at sea (out of port), and the verdict was for the plaintiff. 
 Afterwards, a motion for a new trial was made on the alleged discovery of new evidence 
 that the vessel was seized in port ; and it was argued that the admission at the ttjal 
 ought not to conclude. One ahswer given by the court was : " It is expressly admitted in 
 the case that she was seized at sea. jThis admission ought to conclude the party on this 
 point." Vandervoort v. Smith, 3 Cain. Rep. 155. Note. The marginal note to this case 
 is not qualified as it should be. It is thus : " Admissions in a case are conclusive against 
 the party making them ;" whereas it should be, " admissions made at the trial of a cause 
 shall be taken as conclusive in that cause." The effect of such a,dmissions in a case, is 
 considered in notes 127, 141. and 148. In trespass de bonis, &c., the plaintiff's counsel 
 disavowed claiming any damages by way of punishment or smart money ; and the court 
 held that this concluded him. Hoyt v. Gelston, 13 John. Rep. 141. 
 
 Indeed, instances in the reports are almost innumerable, where the mere silence of 
 counsel on the trial, as omitting an objection to a defect in testimony, shall conclude his 
 „ client, even in respect to the existence of records, documents or other testimony of the 
 most important character. This is on the familiar ground that the silent concession has 
 been acted on by the opposite party, or he has omitted evidence which he would other- 
 wise have produced. Vid. among other cases, Beals v. Guernsey, 8 John. Rep. 451, and 
 White V. KiWing, 11 John. Rep. 128. 
 
 Secondly. The larger class of oases arises under the rule we have already partially 
 noticed, that a party is usually concluded by admissions or conduct upon which others 
 have been induced to act ; and where, if he were permitted to prove that such admissions 
 or conduct were false, such permission would operate as an injury to the persons who 
 were misled by them. Such admissions and conduct, although they cannot operate as a 
 technical estoppel, which can be by deed or record only, are yet said to operate by way of 
 estoppel ; an estoppel in pais. Per Nelson, J., in Welland Canal Co. v. Hathaway, 8 
 Wend. 483. They are said in this case so to operate, where they are designed to influ- 
 ence the conduct of another, and to have that effect, and when a denial will injure 
 *455 the latter. In another case the rule is put broader, that the party shall be *estopped, 
 where his intent was to influence the other, or derive a credit or advantage to him- 
 self Tufts V. Hayes, 5 N. H. Rep. 453 ; Kingsley v. Vernon, 4 Sand. 361 ; 21 Wend. 173. 
 But where he has not acted with this view, and there is no breach of faith in receding, 
 he shall not be concluded. Id. The case will, we imagine, be found to satisfy these rules 
 in their broadest construction. See Tilton v. Nelson, 27 Barb. 595 ; Hawley v. Griswold, 
 42 Barb. 18 ; and Young v. Bushnell, SiBosw. 1, 14. 
 
 Accordingly, where a man has cohabited with a woman, and treated her in the face of 
 the world as his wife, he cannot deny this, and claim to be her servant in respect to lier 
 lands, which are taken in execution against him (Divoll v. Leadbetter, 4 Pick. Rep. 320) ; 
 and he cannot object to a creditor who supplied her with goods during the cohabitation, 
 that she was not his wife. Per Mills, J., In Jennings v. Whitaker, 4 Monroe, 52. And it 
 is said in one case, this shall be so, whether the creditor know that she is his wife in fact 
 or not. Watson v. Tlirelkeld, 3 Bsp. Rep. 637. But this is now held otherwise, where 
 the creditor has a clear knowledge that there is no marriage (Robinson v. Nalion, 1 Camp. 
 245), or where the credit is given after she is turned away, even where she has been 
 treated as a wife for seventeen years. Munro v. Do Chemant, 4 Campb. 315. Nor is the 
 fact oven of present cohabitation conclusive, whore the reputed wife is introduced as a 
 witness for her husband, or he for her, for here is no faith to be violated. 
 
 Again ; the levy and sale of land by a sheriff, was left in doubt as to its extent by the 
 terms of the deed ; and L., the purchaser, declared that a certain island and other laud 
 
BBC. X.] JE^ect of Admissions, Estoppels. 373 
 
 was not included ; these Were afterwards purchased by S. Held, that if S. purchased in 
 consequence of L.'s declaration, he and those taking from hijn by a deed siibsequent, 
 ■would be concluded ; otherwise, if the purchase of S, was not made upon the strength of 
 those declarations. In such case. L.'s declarations would be evidence, but not conclusive. 
 Swartz V. Moore, 5 Serg. & Rawle, 257, 259, 361. 262, 265, 266. ♦ 
 
 On the same principle, where a tenant takes a lease of his landlord, and enters and 
 enjoys, he cannot dispute the title of his landlord, either in an ejectment against the ten- 
 ant after the expiration of his term, or in an action for the rent of the demised premises. 
 See Vol. II, and the cases there cited with the notes ; Repean v. Budden, 5 Barnw. & Aid. 
 538. So, though the tenant take the lease while he is in possession. M'Connell v. Bow- 
 dry's Heirs, 4 Monroe, 392, 400. So, if he enter, or continue his possession under a 
 contract to purchase. Jackson ex dem. NorrLs v. Smith, 7 Cowen's Rep. 717 ; Jackson 
 ex dem. Low v. Reynolds, 1 Cain. Rep 444 ; Connelly's Heirs v. Childs, 2 Marsh. Ken'y 
 Rep. 242 ; Logan v. Steele's Heirs, 7 Monroe, 104. Otherwise he would have the advan- 
 tage of obtaining or keeping a possession which would enable him the better to contest 
 the very title under which he takes. He must, therefore, in general, give up his posses- 
 sion, and then, if he have a paramount title, or can obtain one, he may bring it forward. 
 Jackson ex dem. Shaw v. Spear, 7 Wend. 401. This obligation extends both to him and 
 his successors. It was held, accordingly, that an acknowledgment by a person under 
 whom the defendant in ejectment claims to hold the land, that he went into possession 
 under the lessors of the plaintiff, should be conclusive against him as to the tenancy. 
 Jackson ex dem. Vandeuzen v. Scissam, 3 John. Rep, 499. So, though the agreement to 
 purchase be conditional. Thus, in ejectment, it appeared that on the lessor of the plaint- 
 iff telling the defendant that he claimed the land, the defendant bein^ then in possession, 
 admitted that he entered without title and agreed to purchase it of the lessor of the 
 plaintiff, if the Onondaga commissioners should award it to him. This they did. The 
 defendant now offered to show that a dissent had been entered to their award ; but did 
 not pretend any title in himself. The court said he was concluded, by his admissions, 
 which recognized the lessor as his landlord. Jackson ex dem. Low v. Reynolds, 1 Cain. 
 Rep. 444. 
 
 But the great strictness of this last decision, has not been uniformly maintained by 
 the courts. For in another case, where the defendant having been in possession for a 
 number of years, agreed, on a claim being interposed by the heirs of Sir Peter Warren, 
 to take a lease of them ; held that he was not concluded. He was allowed to show a title 
 out of the heirs who were the lessors of the plaintiff, and thus protect himself in his 
 possession. The court said : " It does not appear that the defendant was put into posses- 
 sion by the lessors, nor that he ever paid rent ; and the agreement for the lease appears 
 never to have been carried into effect." Jackson ex dem. Southampton et al. v. Cooley, 3 
 John. Cas. 223 ; Jackson v. Cuerden, Id. 353 ; and Jackson ex dem. Shaw v. Spear, 7 
 Wend. 401,404 S. P. 
 ' *456 *It has been held in numerous cases, that in the action for use and occupation, the 
 possession of the defendant by the plaintiff's permission being made out, the former 
 will not in general be allowed to dispute his landlord's title. Post, Vol. II, and the notes. 
 And several analogous cases have arisen upon dealings in respect to personal property, 
 Thus, it seems that a receiptor of property to the sheriff who has taken it in execution, is 
 estopped to question the sheriff's title, though he have suffered it to remain with another 
 by whom it is eloigned ; otherwise, if he be ousted by title paramount, or by force; Phil- 
 lips v. Hall, 8 Wend. 610. And the statement of value by the receiptor in the receipt thus 
 given is conclusive. Drown v. Smith, 3 N. H. Rep. 299. Again ; the plaintiff in possession 
 of land, was hired by the defendant to depasture his cattle on the land. In assumpsit for 
 the price, the defendant was holden concluded, and could not with a view to invalidate the 
 contract, show the land to be his own, and not the plaintiff's. Eastman v. Tuttle, 1 
 Cowen's Rep. 248. Again ; one takes goods of another to return on a certain event. In 
 trover after theevent, the bailor will not be put to show a legal title. M'Neil v. Philip, 
 1 M'Cord, 392. Indeed, the defendant is estopped to set up title in a third, as he would 
 be in an action for use and occupation. Manning v. Norwood, 2 Rep. Const. Ct. S. C. 374, 
 
 Nearly of kin to the same principle, will be found that which declares, that where the 
 party interested has made statements in respect to the title of property in his hands, or 
 that certain property exists in his hands, or is under his control, or admits both its exist- 
 ence in his hands and the title in another, he shall be holden responsible for the truth of 
 such statements or admissions, though the supposed property had no exisftnce, or the 
 title shduld be altogether different from what he represented it ; and he shall be subjected 
 to an action as if his representations or admissions had been literally true. Thus, a 
 wharfinger, having acknowledged certain timber on his wharf, to be the plaintiff's, know^ 
 incr of an adverse claim of A., in trover for the timber, was held estopped to question the 
 plaintiff's claim by setting up A.'s title. Gosling v. Birnie, 7 Bing. 339. And see Haweg 
 V. Watson, 2 Barnw. & Cressw. 540, S.P. 
 
 (Where an agent, authorized to make sod indorse notes for the benefit of his princi- 
 pal, makes and indorses notes for the accommodation of a third party in his principal's 
 name, and the notes are transferred to a bona fide purchaseir having knowledge of the 
 
374 Admissions by Parties. [ch. vin. 
 
 agency, but no knowledge of its misuse ; the principal is bound by the act of his agent, 
 tnougrh, as between the agent and his principal, the act was unauthorized and fraudulent. 
 The principal is estopped from alleging the fraud of his agent, as against an innocent 
 party. North River Bank v. Aymar. 3 Hill, 262. The same rule has been applied in a 
 case where the teller of a bank certified a check, the drawer, in fact, having no funds on 
 deposit ; Farmers' and Mechanics' Bank v. Butchers' and Drovers' Bank, 16 N. Y. 135 ; 14 
 Id. 623 ; Massay v. Eagle Bank, 9 Mete. 311 ; and, in a case where the drawee accepted, 
 drafts, leaving the amount in blank, and they were filled up and negotiated for a larger 
 sum than was agreed on ; Van Duzer v. Howe, 21 N. Y. 531 ; and, in a case whej-e one of a 
 firm of warehousemen, falsely represented that a certain person had on storage with them 
 a certain quantity of gram, the party to whom the representation was made, having 
 advanced money on the faith of such representation ; the firm was held bound by the rep- 
 resentation. Griswold V. Haven, 35 N. Y. 595. But the agent cannot bind his principal 
 in matters touching his agency, where he has a known adverse interest in himself; Stone 
 V. Hayes, 3 Denio, 575 ; Bentley v. Columbia Ins. Co. 17 N. Y. 433 ; thus, if the president 
 of a bank certifies his own check, the check so certified shows on its face, that the party 
 certifying could not, by his act, estop the bank from showingthat the certificate was false. 
 Claflin V. Farmers' and Citizens' Bank, 86 Barb. 540 ; S. C. 24 How. Pr. 1. 
 
 A volunteer payment in chattels cannot be revoked, after their delivery ; the party 
 making it is estoppei by his own act, and cannot treat the delivery as a sale. Fowler v. 
 Holler, 10 Bosw. 374.) 
 
 The defendant gave L. a bill of parcels of 300 bbls. of beef, with a receipt in full as pay- 
 ment, and a certificate that he had received 300 bbls. of beef on storage for L., who assigned 
 the beef for the benefit of his creditor. In trover by the assignees against the defendant, 
 he would have shoWn tliat in truth tliere was no specific beef which could pass by the 
 sale, and that the beef mentioned as on storage did not exist ; but the court held, that 
 this would not avail him. He was concluded by his acts and admissions. Chapman v. 
 Searle, 3 Pick. Eep. 38. The court distinguished this case from- Austin v. Craven (4 
 Taunt. 644), saying that was the case of a mere executory contract of sale ; and they liken 
 it to Stonard v. Dunkin (3 Campb. 344), where tlie plaintiff advanced £7,500 to K. for malt, 
 and on his order, the defendants wrote an acknowledgment that they held the malt for 
 the plaintiff. They were held to be concluded by this acknowledgment, and could not 
 say the malt was not the plaintiffs. The court also cited Harding v. Carter (Park on 
 Ins., 7th ed. 4), where the defendant's clerk wrote the plaintiff that the defendants had 
 effected two policies of insurance for him. In trover for tlie policies, it was held the . 
 defendants could not gainsay their representation ;, but were concluded, although in truth 
 no policy was effected. Vicie 3 Pick. 44. Again : a constable coming to levy on one 
 Benedict's property, Stephens pointed out lumber, one-fifth of which he said belonged 
 to Benedict, whereupon the constable levied on and sold it. Held, that Stephens, who 
 originally claimed four-fifths, was concluded, and could not set up a right to the whole ; 
 and that Baird. the purchaser of the one-fifth at the constable's sale, might ^recover for the 
 one-fifth of Stephens, who had converted the whole, although in truth Stephens had title 
 to the whole. Stephens v. Baird, 9 Cowen's Rep. 374 ; Wallis v. Truesdell, 6 Pick. Rep. 
 455, S. P. So, though on his execution commanding him that if he cannot find property, 
 he shall take the body, a constable is bound to search, yet, if the defendant in the execu- 
 tion declare that he has no property, this shall bind him, whether true or false ; and the 
 constable, having acted upon it and taken him, shall be protected. Per Sutherland, J., 
 in HoUister v. Johnson, 4 Wend. 643. But where no injury arises from such a repre- 
 sentation, it will not conclude. Thus, on levying an attachment (mesne process), the 
 defendant told the ofiicer that the goods belonged to a third person ; on trial, he succeeded 
 in the attachment suit, and then the officer sold the goods without authority. Held, that 
 the defendant in the.attachment suit was not precluded from recovering against the officer 
 
 for the tortious sale. Wallis v. Truesdell, 6 Pick. Eep. 455. So where the sheriff, 
 *457 having &fi.fa. against Dukes, one Ufford, *who owned a negro, told the sheriff he 
 
 belonged to Dukes, whereupon the sheriff levied upon the negro and sold him, but 
 before the sale, Ufford explained to the sheriff that Dukes had no other title than to sell 
 the negro and pay himself a debt due to him from Ufford ; held, that the latter was not 
 concluded. Ufford v. Lucas, 3 Hawks, 314. And »emJ. should an execution debtor, in 
 ■truth owning but one cow, exempt from execution, tell the creditor or officer that he owns 
 another, the debtor's cow may be taken, though the declaration be not true. Otherwise 
 where the declaration is loose and casual, and made to third persons. Tufts v. Hayes, 5 
 New Hamp. Rep. 453. One who owned a slave stood by, and allowed him to work for 
 another, who believed he had right, and to whom the former knew the slave had been 
 bequeathed by A. as his slave, the owner not giving notice of his claim, was held to be 
 concluded against an action by the owner for the slave's services. Demyer v. Souzer, 6 
 Wend. 436, 437. Again : in trover for goods, which the defendant procured of the plain- 
 tiff by a fraudulent purchase, it appeared that the plaintiff sold the goods, claiming them 
 as the next of kin to a decedent ; but no administration having been taken out, he then 
 had no title ; and the defendant, after sale, took letters of administration himself, and 
 caused the sale to be proved and legistered ; so that he thus had the legal title, which he 
 
SEC. X.] Effect of Admissions, Estoppels. 375 
 
 set up against the plaintiff; but helii, that he was estopped to deny the legal title of the 
 plaintiff; for his purchase of the goods and registry of sale admitted the plaintiff's legal 
 right, and charged himself with the necessary assent as administrator, which should 
 operate by relation to vest the legal title in the plaintiff from the beginning. Cross' 
 Adm'rs. v. Terlington, 2 Murph. 6. So where A. indorsed on a writ in his favor, that the 
 suit was brought for the use of B., this was held conclusive ; and that a payment to B., 
 in any way he chose, bound the plaintiff. Clark v. Shields, 3 Hawks, 461. 
 
 where the assignee of a chose in action purchases it, after a promise to him by the 
 debtor to pay, or his acknowledgment to him, or in his hearing, of the debt, made before 
 or at the time of the assignment, or where the debtor stands by, and silently sees the 
 debt assigned, he shall be estopped to set up any defense as against the assignee. Thus, 
 the debtor shall not be permitted to show that it was before paid. Buchanan v. Taylor, 
 Addis. Rep. 155 ; Ludwick v. CroU, 2 Yeates, 464 ; Carnes v. Field, 2 Id. 541 ; Weaver 
 V. M'Corcle, 14 Serg. & Rawle, 304 ; M'Mullen v. Wenner, 16 Id. 18 ; Morrison's Adm'r v. 
 Beckwith, 4 Monroe, 73. Such an acknowledgment, made after the assignment is taken, 
 shall not conclude. Ludwick' v. CroU, 2 Yeates, 464. But where the admission precedes 
 the assignment, it shall shut out a defense, even on the ground of illegality of considera- 
 tion. Thus, the defendant having given a bond and warrant of attorney, to secure a 
 gaming debt, the bond was offered for sale to S., whose attorney applied to the defendant, 
 who said the debt was good, and would be paid when due ; S. thereupon paid and took an 
 assignment. After this, the defendant moved to set aside the judgment ; but was held 
 concluded on his representation, on which S. had acted. Davison v. Franklin, 1 Barnw. 
 & Adolph. 142. 
 
 (Where mortgaged premises are conveyed subject to the mortgage " which the party of 
 the second part hereby assumes to pay," the holder of the mortgage may maintain a per- 
 sonal action against the grantee for the amount. Lawrence v. Fox, 20 N. Y. 268; Burrv. 
 Beers, 24 Id. 178. But a conveyance subject to a moi^tgage does not bind the grantee 
 personally, nor will it estop him from showing, as against an assignee of the mortgage 
 who could have ascertained the fact, that the mortgage liad been in part paid before the 
 deed had been giijen and accepted. Hartley v. Tatham, 10 Bosw. 273. Had the deed con- 
 tained a statement of the amount due, or had the grantee made a statement in any form 
 admitting the amount due, he would probably be precluded from denying such statement 
 as between himself and a bona fide assignee of the mortgage acting on such admission. 
 10 Bosw. 286 ; Hartley v. Harrison, 24 N. Y. 170.) , 
 
 It was held in one case, that the maker of a note not negotiable, promising after assign- 
 ment to pay the assignee, is concluded, and cannot let off any claim against the payee ; 
 for the assignee might have sued in his own name, when the set-off could not have been 
 received, and ?uing in the name of the payee gives no greater right to the maker ; the 
 difference is merely in form. Wiggin v. Damrell, 4 N. H. Rep. 69. Qaere. In Gould v. 
 Chase (16 John. Rep. 226), a subsequent promise of this kind was holden not conclusive, 
 but only priina fcuM evidence against the set-off, which might still be received on a satis- 
 factory explanation how the promise came to be made, notwithstanding the apparent 
 existence of the set-off ; such a subsequent promise would not clearly shut out any other 
 plain defense, for the promise itself would be tnidum, pactum. See Clay v. Johnson, 6 
 Monroe, 660, 661. 
 
 The voluntary conduct and declaration of a bankrupt, by which persons have been led 
 to act in his affairs as a bankrupt, have often been held to conclude him, on the question 
 whether he was in truth a bankrupt or not ; as where he had voluntarily acquiesced in, and 
 acted under a commission for a year and a half, he himself in the mean time petitioning 
 in the name of a creditor for new assignees. He then brought trover against the assignees 
 to unravel the whole affair, and insisted that he was not a bankrupt. The Lord Chancel- 
 lor enjoined him against proceeding in the action, as he was a party who had drawn in 
 the assignees to act, and had not merely submitted and surrendered himself under pro- 
 test, to avoid the heavy penalties of the Bfinkrupt Law. Flower v. Herbert, 2 Vesey, 326. 
 So where an alleged bankrupt had solicited the creditors to vote for the defendants 
 *458 as his assignees, and then brought an action against them for money had *and 
 received, to disaffirm the proceedings under the commission, it was held by Sir J. 
 Mansfield, C. J., that as the defendants were enabled, by being so chosen assignees, to 
 obtain the money in question, the plaintiff was concluded, whether he was in truth a 
 bankrupt or not ;_ and he nonsuited him. Like v. Howe. 6 Esp. Rep. 20. So where a 
 man was declared'a bankrupt, and his goods put up for sale, and he brought trover against 
 the assignees, insisting that he was iiot a bankrupt.^ In defense, it was proved that the 
 plaintiff had himself introduced the auctioneer to the defendauts, by whom the goods 
 were sold, and recommended him for the purpose. Heath, J. — " How is this a tort or 
 wrongful conversion 1 Why has he acquiesced in it ?" Plaintiff's counsel — " It was an 
 acquiescence he could not help. He was then declared a bankrupt, and bound to sub- 
 mit." Heath, J. — " He might suhmit to the commission, but he need not take any part in 
 anything done under it, nor show his acquiescence in it. The action cannot be sustained; 
 the plaintiff must be called." Plaintiff nonsuited. Clarke v. Clarke, 6 Esp. Rep. 60. See 
 
376 Admissions by Parties. [ch. vin. 
 
 further, Havelock v. Cook,- 5 T. R. 655 ; Goldie v. Qunston, 4 Campb. 381 ; Mercer v. Wise, 
 3 Esp. Rep. 219, and 11 Ves. 409. 
 
 ' But the mere surrender of a bankrupt shall not conclude him ; for this is compulsory. 
 Per Ld. Ellenborough, in Goldie v. Qunston, 4 Camp. 481. So in trover, by an alleged 
 bankrupt, to try the validity of the commission, it appeared that he had assisted the 
 assignees to recover goods which they had sold ; had given them directions as to sales ; 
 had given notice to the lessor of his farm that he had become bankrupt; and was willing 
 to give it up, which was done. Held, that the bankrupt was not estopped to question 
 the commission, as his interference in respect to the goods was equivocal, and might be 
 referred to his care of them ; and the assignees were neither parties nor privies in respect 
 to the surrender of the lease. Heane v. Rogers, 9 Barnw. & Cresw. 577. 
 
 Where an admission is made by a party, which, if true, entitles another, and induces 
 him to bring an action against the party, he shall be bound, whether he spoke true or 
 false ; and the fact, with all its legal consequences, shall be taken exactly as the party 
 stated it to be. A strong case under this rule was in detinue against the defendant, an 
 executor of W., deceased, for deeds and writings. The plaintiflFs' attorneys, Watson & 
 B., applied to ,W., in his lifetime, for the papers, he having formerly had the custody of 
 them, as executor of one H. The defendant wrote to the plaintiffs attorneys, concerning 
 a. proposed interview oh the subject, " I have no objection to submit the deeds to Mr. 
 Watson's perusal, nor to his taking extracts," &c. Another letter prescribed conditions, 
 and said the deeds would not be forthcoming unless the conditions were fully complied 
 with. It was objected, that the defendant was not guilty of a tort, he having had the 
 •deeds for a short time, in order to produce them at a proposed interview. Best. Ch. J. — 
 •" If the defendant said that he had the deeds, and thereby induced the plaintiff's to bring 
 their action against him, I shall hold that they may recover against him, although the 
 assertion was a fraud on his part. It appears by his letter that he did say so ; and there- 
 fore, I am of opinion that the verdict must be for the plaintiffs." His Lordship then left 
 it to the jury, to give such damages as would compel the defendant to deliver up the 
 deeds ; they accordingly found their verdict for £450. Hall et ux. v. White, 3 Carr. & 
 Payne, 243. (In a case where the construction of a contract was in doubt, the employer 
 requested the contractor to go on and do the work, which being done, it was held that 
 the employer could not afterwards refuse to pay for such work. Stewart v. Keteltas, 9 
 Bosw., 261.) 
 
 So, where the defendant in ejectment, in a conversation before suit brought, and with 
 a view to being made a defendant, ar«d trying the title, declared that he was in possession ; 
 and the action was thereupon brought against him ; held that he was concluded, though 
 in truth he was not in possession. Ben ex dem. Mordecai's Heirs v. Oliver, 3 Hawks, 479. 
 So in^eparate ejectments against landlord and tenant for adjacent lands in possession, 
 either of the tenant or both, the landlord by denying his possession, obtained a verdict; 
 but the verdict palssed against the tenant for the Tyliole ; and execution was executed ; 
 when the landlord would have obtained restitution of part, on the ground that in truth 
 ie was in possession ; but held that he should not be heard, on account of his denial in 
 ith^ formfer action, which had gone upon that ground, in his favor. Crockett v. Lashbrook, 
 ,5 Monroe, 530, 544. Though as the trial did not go to the title, it should not conclude 
 him in an'action of trespass ; but should be taken in respect to that, like any other con- 
 fession against liim. Id. 544, 545. Again-; the defendant in ejectment, a tenant, on the 
 bailiff coming to distrain, denied that any sufficient^ distress was upon the premises, 
 whereupon the bailiff immediately served him with a declaration in ejectment, at the 
 jsuit of the landlord, upon the clause of re-entry for non-payment of rent, and insufficient 
 goods for a distress. On the trial, the defendant was allowed to show that there 
 *459 was in truth sufficient goods for a *distres8 at the time when the bailiff came, and 
 the verdict was for the defendant ; but a new trial was granted, though the tenant 
 was a mere holder at sufferance, his lease having expired ; and his immediate lessor 
 would thus be ousted without any fault of his. The Trustees of the Firet Incorporated 
 Presbyterian Congregation in Salem v. Williams, 9 Wend. 147 ; 8 Wend. 583 ; S. C, cited 
 and stated at large by Nelson, J. Again, the claimants and tlieir agents being uninformed 
 as to the commencement of the defendant's tenancy, the agent applied to the latter for 
 information ; and he informed him it began at Lady-day. Thereupon the agent sold the 
 premises ; and gave the regular notice to quit at Lady-day. This not being heeded, 
 the agent brought ejectment, when the tenant set up a holding from a different day. But 
 Lord lienyon would not allow him Ho show that ha was even mistaken in his admission, 
 for he was concluded. No matter whether the misrepresentation was mistaken or 
 designed ; for it had equally the mischief of loading the landlord into an error. He had 
 acted by bringing his suit to recover the term, on information furnished by the defendant 
 himself. Doe ex dem. Eyre v. Lambly, 2 Esp. Rep. 635. 
 
 So where the party holds himself out as being owner of a vessel, he shall be liable as 
 such, though he be, in truth, the mere mortgagee. Thus, where the mortgagee of a ves- 
 sel took out a register in his own name as unconditional owner, and the vessel went to 
 soa with this register as a part of her papers ; hold by four judges against three, that the 
 mortgagee thus mode himself conclusively liable for supplies, disbursements and repairs 
 
SEC. X.] Mg^ect of ^Admissions, Estoppels. 377 
 
 procured by the master. The court put it on the ground that, though in other cases, a,nd 
 as between other parties, the register would be at most, prima faeie evidence of owner- 
 ship, yet, in respect to creditors who might have acted on the register, in furnishing sup- 
 plies, &c., the register should conclude ; and they likened it to the usual case of a man 
 being bound by the character or relation which he puts himself before the world as hold- 
 ing ; and that, if he intended to save himself from such a consequence, he should have 
 indorsed his claim as mortgagee on the register. Starr v. Knox, 2 Conn. Rep. 215. Srie 
 Champlin v. Butler, 18 John. Rep. 169. So the defendants being owners of a vessel in 
 unequal shares, the minor owner chartered his share of the vessel to the major owner, 
 for a voyage, with which.the former would have nothing to do. But the ship's papers 
 stood in both names, and the master, on representing both as owners, procured on their 
 credit funds to prosiecute a claim for the vessel (which was captured) in a foreign court of 
 admiralty. Held, that suffering the ship to go forth with such papers, bound and con- 
 cluded both owners in an action for the funds supplied on their credit. Williams v. Kel- 
 ley & Sanger, 3 Conn. Rep. 318, note a. 
 
 A man is often concluded by allowing his name to go forth and be used as a partner in 
 a mercantile firm, whether this be true or not. 
 
 So one using the goods of the deceased sliall not be allowed to say he is not an execu- 
 tor ; and so it would seem an infant who obtains credit or advantage by representing 
 himself to be of full age, shall not be allowed to set up his infancy. Per Mills, J., in 
 Jennings v. Whitaker, 4 Monroe, 51 to 53. (The contrary doctrine is now settled ; the 
 infant does not estop himself by such a representation. Brown v. McCune, 5 Sand. 234 ; 
 4 Sand. Ch. 37 ; Ackley v. Dygert, 33 Barb. 176, 193. If an infant purchase land, giving 
 his promissory note therefor, and exercise acts of ownership over the property after com- 
 ing of age, he will be deemed to have ratified the contract. Henry v. Root. 33 N. Y. 536.) 
 
 So the act of a man's general agent shall bind, if within the scope of his ajjparent 
 . agency, though contrary to the secret instructions of the principal. 1 Liv. on Ag. 120, et 
 eeq. and the cases there cited. 
 
 A man has often been concluded by his acts and declarations in respect to his name. 
 Thus, a man put in special bail by a wrong name, upon which the plaintiff was proceed- 
 ing against him by that name, when he pleaded a misnomer. The plaintiff replied the 
 act of putting in bail as an estoppel ; and on demurrer, the court said, putting in bail was 
 the defendant's act ; and he was concluded. Meredith v. Hodges, 5 B. & P. 453. Here 
 was a technical estoppel ; biit a nian may, by his admission, equally work an estoppel in 
 pais. Thus, in trespass for distraining the plaintiflf 's goods, on process from an inferior 
 court issued against him by the naipe of John, he proved his name to be WUliam, though 
 he once had a sign up with the name of Jolm. On being asked whether his name was 
 JoJm, with a view to have the process right, he said it was, and they might distrain upon 
 him and be d — d. Lord Ellenborough said, here the party was known as well by one 
 name as the other. "But, besides that, I think the plaintiff is barred, by having said that 
 his name was John, when interrogated before the process was issued. He shall not be 
 allowed to avail himself of the mistake which he himself occasioned. Price v. Harwood, 
 3 Campb. 108. Again, the plaintiff's indorsees declared against the acceptor, on a bill 
 drawn by " Ellis, Needham, Jr. & Co." payable to " our order," and set it forth as, being 
 drawn by several persons, under a firm of that name ; whereas, in truth, it w^s drawn 
 *460 by one person only, who *traded under that name. And the court held the drawer 
 concluded by his acceptance, as an admission that there were several persons, the bill 
 having that appearance and holding tliat language. Bass v. Clive, 4 Maul. & Selw. 13. So a 
 man may be convicted by a false name by which he calls himself; and shall be estopped, 
 though by his conduct he has made it merely doubtful whether it be his true name. He 
 may be sued by the name of his initials, where he is in the habit of using only initials 
 for his Christian name. Gty Council v. King, 4M'0ord, 487; Petrie v. Wood worth, 3 
 Cain. Rep. 219. And if he holds out a false name, by which a sheriff arrests him, though 
 by a writ in truth against another, he cannot subject the sheriff for false imprisonment. 
 Per Lord Ellenborough, C. J., 1 Barnw. & Aid. 650. So' a defendant who allows Ids name 
 tq continue painted on a cart, and over the house of business where the cart belongs, is 
 concluded ; and in an action against him for another's negligent driving and injuring the 
 "plaintiff, cannot set upjlhat he had before parted with all his interest. Stables v. Eley, 
 I Cair. & Payne, 614. 
 
 A man may conclude himself in the same way, as to his calling, profession or office. 
 Tlius, where the plaintiff sued as surgeon, but it appeared on the trial that he was called 
 " doctor," and signed himself M. D., to his prescriptions in the course of the services sued 
 for ; held, that he was concluded by this, and could not deny that he was a, physician ; 
 and therefore, by the law of England, not entitled to sue for fees. But the defendant 
 having paid money into court, was held estopped to deny that he was a surgeon, and so 
 he might recover. Lipsoombe v. Holmes, 2 Campb. 441. So a person acting in a certain 
 office (e. g. as deputy sheriff) is estopped to deny that he is such officer. Hughes v. James 
 8 J J. Marsh, 700. 
 
 The following miscellaneous cases may serve still farther to illustrate the principle we 
 are upon : A man stands by, and suffers his name to be put down at on auction as the 
 
 Vol. I. 48 
 
378 , Admissions hy Paries. [oh. vni. 
 
 purchaser by direction of the bidder ; he is estopped to deny that he is the bidder. Jenkins 
 V. Hogg, 3 Const. Rep. S. C. 821. So a surveyor running land and boundiiig it on one of 
 his own land lines, is concluded against Saying the land surveyed was his, as to one who 
 had built a mill on the tract surveyed. Tarrant's Lessee v. Terry, 1 Bay, 239. A bill of 
 lading signed by the captain, stated that freight was paid at Bengal, and was indorsed 
 by the London consignees to another for value. Held, that the owners were concluded as to 
 the assignee, though the Statement as to freight was a mistake. Howard v. Tucker, 1 
 Barnw. & Adolph. 712. The owner of an ancient mill permitted the defendants to lower 
 the bank of the river on their land, and to make a Wejf above the mill, whereby less 
 water than before flowed to it. Held, that both the owner and his heirs were concluded 
 and could not sue the defendants for that act nor revoke th e license: Liggins v. Ingie, 7 Bin g. 
 683. A sheriff's iadorsisment of the time when he received &ji.fa. is conclusive against 
 him, as between him and the creditor, as to the time. Williams v. Lowndes, 1 Hall's 
 Eep. N. T. S. C. 579. The recital of a fact in a deed is generally an estoppel as 
 between the parties, and especially if the one Who claims the benefit of the recital has 
 acted upon the fact recited, as by paying money, &c. Peddicord v. Hill, 4 Mon. Rep. 370, 
 373 ; Hill v. The Proprietors of the Manchester and Salford Waterworks, 3 Barnw. & 
 Adolph. 544. Tlie plaintiflFs had sold goods to the defendants, who sent them a check 
 for the balance, with an account stated. One of the plaintifis objected that the balance 
 was too small, but received the check; and, having said nothing to the defendants 
 for several months, sued theni for an alleged deficiency. Held, that the plaintiffs were 
 concluded as to the amount of the balance by receiving the money as payment of it. 
 Davenport et al. v. Wheeler et al., 7 Cowen's Rep. 331. The inventory of an executor 
 returned to the ordinary, is conclusive against him as to the amount of assets. Wright 
 V. Wright, 2 M'Cord Ch. Rep. 196, Curia, per Nott, J. If the supposed maker of a forged 
 note pay the money to an innocent holder, aemb. the former cannot recover the money 
 back. Senib. He is concluded by his admissibii, both parties being innocent. The 
 Salem Bank V. The Gloucester Bank, 17 Mass. Rep. 1, 27. 
 
 We have already seen it repeated several times incidentally in the course of the cases, 
 that the estoppel or disability to contradict an act or assertion, prevails only in favor of 
 the person who has acted upon or been drawn in by the jp,lse act or representation : not 
 as to others who could not have been imposed upon. And see per Mills, J., in Jennings 
 v. Whitaker, 4 Monroe, 51 to 53 ; Tufts v. Hayes, 5 N. H. Rep. 453. This may" be farther 
 illustrated by a few cases. Thus, where a party gave his receipt to an alleged corpors^- 
 tion by its supposed corporate name, it was held not to be such an admission as should 
 estop him from denying the corporate character, and putting the coiJipany to strict 
 *461 proof of their cliarter. The Welland Canal Cotdpany v. *Hathaway, 8 Wend. 480. 
 Otherwise, where he accepts an office under the supposed corporation, and obtains 
 money in that capacity. All Saints Church v. Lovett, 1 Hall's Rep. N. Y. S. C. 191. 
 
 The consideration of a few other instances will show that acts or confessions not infiu- 
 encing the conduct of others, or coming within some of the principles which we have 
 been exemplifying, although very deliberately made, are yet not conclusive. Being 
 untrue, this fact may, if there be counter evidence to that eifect, be shown ; and such is 
 the rule in regard to all such confessions as we are to bring forward under the third head 
 of this note. My agent declares that the goods delivered are according to contract, 
 having, according to the custom of the foreign port, examined oply a sample. This shall 
 not conclude me against showing his mistake. Gilpins v. Consequa, 1 Pet. C. C. Rep. 85, 
 88 ; S. C, 3 Wash. C. C. Kep. 184. An offer, or even tender, of the money, will not con- 
 clude as an admission of the tenderee's right, if it be not accepted by the tenderee, nor 
 paid into court by the tenderer, upon an action being brought. Jackson ex dem. Ballou 
 v. Campbell, 5 Wend. 572, 577. An acknowledgment by subscribing an account current, 
 is yet liable to be corrected or rebutted by competent proof ; as that the money advanced 
 for which the balance was struck at $1,500, was in truth only, about $800. Nicliols v. 
 Alsop, 6 Conn. Rep. 477. A plea to an indictment, e. g. for a breach of law relating to 
 retailers, of nolo contendere, though equivalent to a plea of guilty, with a protestation of 
 the defendant's innocence, will not conclude him in a civil action from disputing the 
 facts charged in the indictment, e. g. in sd.fa. on a recognizance, for breach of the same 
 law. Commonwealth v. Horton, 9 Pick. 206. A certificate signed by A. that he had pur-, 
 chased a vessel of B., was held not to conclude A., In an actioa drawing the sale in 
 question ; but held that A. might show an agreement al the timis that a bill of sale was 
 to be executed in order to complete the purchase. Higgins v. Chessman, 9 Pick, 7. In 
 debt for money lent, it was stated that the plaintiff had attempted to obtain the benefit 
 of the Insolvent Act ; and sworn to his schedule of all debts due to him, in which the 
 present one was not inserted, though as the plaintiff now claimed, it must have been then 
 due. Lord Tenterden intimated, at first, that the admission was conclusive against 
 the plaintiff. On further debate, he said that at all events it was strong evidence for the 
 jury ; and some further evidence being given of the plaintiff's admission, that he in truth 
 owed the defendant, a nonsuit was ordered. Nicholls v. Downes, 4 Carr. & Payne, 330. 
 Though the decision of an arbitrator be conclusive, as implying an exercise of judgment, 
 it is not 80 with any fact which he may state or refer to, though appealed to by the par- 
 
BBC. x] .^ect of Admissions, Estoppels. 379 
 
 ties to state the fact, Etnd they agree to abide by his statement. Williams v. Wood, 1 
 Dev. 32. I deliver part of certain goods to one yiho wrongfully claims title to the whol^, 
 ftiis shall not estop me to deny that he has title to the residue. Stone v. Swift, 4 Pick. 
 389. As to admissions by entries of deposits in bank-books : " If the dealer's book accomr 
 pany the deposits, and the credit be then given, when the deposit is made, it. becomes an 
 original entry, and would be conclusive on the bank. If, however, the book is sent to be ' 
 written up afterwards, it is not an original entry, and may be examined into." Per 
 Spencer, J., Manhattan Co. v, Lydig, 4 John. Kep. 389. An entry by a teller or clerk of a 
 bank, of the amount of a deposit in the bank-book of a dealer with the bank, being the 
 set only of the agent of the bank, and not of both parties, is not conclusive. If, there- 
 fore, the dealer can afterwards prove that there was a, mistake in the entry, he may 
 recover, in an action for mopey had and received, the sum not credited, even though the 
 bank have a by-law that all payments made and received must be examined at the time ; 
 for corporate by-laws shall not aflFect strangers. Mech. & Farm. Bank v. Smith, 19 John. 
 Rep. 115. See farther the last head of this note, as to the character of other confessions 
 in point of c(>nclusiveness. ,, 
 
 On the question whether the party can relieve himself by showing a mistake in a con- 
 fession upon which another has acted, the following case has been decided. The plaintiff 
 claimed under Minor, who held 4lmortgage dated at the same time, with a mortgage to 
 one Wright, both from the same mortgagor of the ssime land ; but Minor's was registered 
 five minutes before Wright's. Minor signed a paper agreeing that the registry was a 
 mistake, and that neither mortgage had any preference. Then the plaintiff acquired 
 Minor's rights under the mortgage. Then the defendant having first inquired of and been 
 told, by the plaintiff that there was no preference between the mortgages, and that Minor 
 had stipulated that this was so, took a conveyqfice of all Wright's interest in his mort- 
 gage. Yet, held, that the plaintiff might show that Minor's mortgage, in truth, had a 
 priority of record, and so oust the defendant of his claim under Wright ; it appearing 
 that the plaintiff was mistaken in his admissions. Beers v. Broome, 4 Conn. Rep. 
 *462 *247 ; S. C, 2 Conn. Rep. 467, by the title of Beers v. Hawley. Qmre, whether a 
 mistake could be shown in such a case, and see Howard v. Tucker, 1 Bamw. & 
 Adolph. 713 ; Doe ex dem. Ejre v. Lambly, 2 Esp. Rep. 635 ; Games v. Field, 2 Yeates, 541. 
 
 With regard to oral admisftons in general, and as to the third class of adniiissions in par- 
 ticular, viz : unconnected and casual „representations, they have occasionally met with 
 great disfavor, as a dangerous kind of evidence, receivable with great caution (Myers v. 
 Baker, Hardin, 549), with suspicion, and the jury were admonished to see that it was the 
 intention of the party to admit a fact from being satisfied of its truth (Polk's Lessee v. 
 Robertson, 1 Tenn. Rep. 463), as dangerous when adduced to establish a resulting triist, 
 unless confirnied by circumstances. Per Sutherland, J., in Malin v. Malin, 1 Wend. 625, 
 648, 649, and 653, 654. Again; the judge speaking of an important fact, says : "It was 
 attempted to be proven by the most dangerous species of all evidence ; parol, proof of the 
 admissions of the party." Perry v. Gebreau, 5 Mart. Lou. Rep. (N. S.) 18, 19. The 
 admissions should be received with becoming caution ; and where the judge, while 
 charging the jury, refused to allow' a witness to correct the language in which he had 
 testified of a confession ; and which language left its import doubtful, this was held a 
 right exercise of a discretion which the court possessed in such matter. Law v. Merrils, 
 6 Wend. 268. Even when proved against a party, they are the weakest of all evidence 
 deemed admissible in law. Per Underwood, J., in Qilmore v. Morgan, 2 J. J. Marsh. 65. 
 Again ; admissions, though receivable on questions of boundarj. are yet to be taken with 
 some allowance, and are never conclusive. Loose statements should weigh nothing, 
 especially where much time has elapsed from the making of them. Per Peck, J., in Pay- 
 ton's Lessee v. Dixon, Peck, 148, 150. The confessions of a party is a species of evidence, 
 which of all others, should be weighed with the greatest caution, as proof of a mistake 
 in a bond by one of the Obligora (on bill filed to rectify) coming from strangers only, and 
 made since the bond, when there is a subscribing witness to the bond, whuse evidence 
 might, for anything appearing, be produced, they (the strangers) proving too that the 
 other party understood the contents, especially if there be a discrepancy in their state- 
 ments as to the confessions. Such evidence cannot overcome the express denial of the 
 answer. Stone v. Ramsey, 4 Monroe, 236, 240, 241. In trover for a negro, u witness, 
 whose credit was impeached on bis cross-examination, swore to the defendant's confession, 
 that W. sent off the negro to Texas ; the truth of which testimony was essential to make 
 out the case. On a verdict for the plaintiff, a new trial was granted ; the court saying 
 the species of confession sworn to, is, in itself, the weakest and most unsatisfactory of all 
 testimony, on account of the facility with which it may be fabricated, and the difficulty 
 of disproving it if false. Allen v. Young, 6 Monroe, 136. And see Snelling v. Utterback, 
 1 Bibb, 611 ; and Morris v. Morris, 2 Bibb, 311 ; and per Underwood, J., in Bernard v. 
 Flournoy, 4 J. J. Marsh, 101. 
 
 On the other hand, it is said, that though " evidence of confessions is to be received 
 with great caution, yet when made and satisfactorily proved, they are the best species of 
 evidence, better than the direct testimony of one who should testify that he saw the 
 accused set a lighted torch to the building. In the latter case, doubts may arise as to 
 
380 Admissions 5y Part'ieSi [ch. rnr. 
 
 the identity of the person, or the intention with wliich he did the act, or of the veracity 
 of the witness ; but in the case of a voluntary confession by one of sufficient intelligena|| 
 to know the nature and consequences of his crime, no such doubt can exist." Per Put- . 
 nam, J., in Commonwealth v. Knapp, 9 Pick. 508, adopting the language of Parker, Ch. 
 J., on Clark's trial for arson. 
 
 ■ An admission by a party of what the law is, liaa no effect, and is never noticed. Polk's 
 Lessee v. Robertson, 1 Tenn. Rep. 463. So of the legal effect of his contract, e. g. that 
 his agency under a certain arrangement continued to such a time. A fortiori it cannot 
 affect others bound for him, in respect to the agency. Boston Hat Manufactory v. Mes- 
 singer, 2 Pick. 223. Accordingly, where the complainant applied to the defendant, who 
 admitted the title of the former, which depended on the question whether he had made 
 agood entry within the laws of Kentucky, and on a bill filed, the defendant admitted his 
 former concession, and that he would have abandoned his claim for one dollar, but 
 insisted on a mistake ; and in truth it turned out that there was a mislake, the defendant 
 having a good title ; the court said a better estate could not be defeated, released or 
 extinguished by a mistake of opinion, or confession of law, or expressions of intention 
 not to prosecute the right. Craig v. Baker, Hard. Bep. 281, 283, 384, 289. So, where a 
 man voluntarily and without consideration agreed in writing to convey land to another, 
 and often admitted that the land belonged to rne other. On his filing a bill to 
 *463 compel performance, *these udmissions were held for nothing, for the right 
 depended on a question of law', as to which confessions are not evidence, but only 
 of fact. Leforce v. Bobinson, Litt. Sel. Cas. 22, 23. So admissions of a party under a 
 misapprehension of his legal rights do not affect him ; as where one admitted payment 
 of a debt for him by another ; whereas, that other had merely agreed to pay the debt. 
 So where a mechanic, who made brick for another, admitted that he had no lien on them. 
 Moore v. Hitchcock, 4 Wend. Bep. 293, 298, 299. 
 
 Having said so much in general as to the nature and effect of these admissions, I shall 
 proceed to the more practical task of stating several of the cases calculated to illustrata. 
 their particular nature and effect, when applied to their legitimate subjects, /ac<« and not 
 law. 
 
 The declarations of an intestate that a contract wap madelfeithout fraud, are not con- 
 clusive against his administrator, in an action on the contracC Duncan v. M'CuUough, 4 
 Serg. & Rawle, 483. Letters written by a party are evidence against him. Fowle v. 
 Stevenson, 1 John. Cas. 110. Letters addressed by a debtor to two others, one of them 
 acknowledging the favor they had done him by raising the money in question for him, 
 may go to the jury, to say whether they prove a joint contract to pay the money to both 
 or one,, and which ; but are not conclusive of a contract with the two jointly. Ash et al., 
 Adm'rs v. Patton, 3 Serg. & Rawle, 300. An acknowledgment by a slupmaster by signing 
 a bill of lading, that the articles shipped are in good order, is not conclusive, though it is 
 strong prima /fflcie eviienee that thby were so at the time. But he may show the con- 
 trary in an action against him by the consignees for not delivering them in good order. 
 Otherwise, it seems, where the goods are open to inspection,- and there is no fraud or 
 imposition. Held, in respect to a case Of velvets consigned to the plaintifls from Liver- 
 pool, such cases not being usually opened and inspected by the master. Barrett v. Rogers, 
 7 Mass. Bep. 297. An admission by the maker of a promissory note, that he signed it, is 
 not conclusive against him. To repel such confession, he may go into proof of his hand- 
 writing. Hall et al. v. Huse, 10 Mass. Bep. 39 ; The Salem Bank v. The Gloucester Bank, 
 17 Id. 1. Evidence of admissions can be received in respect to boundaries as well as iu 
 other cases, but they should be clear and unequivocal to have any effect. Polk's Lessee 
 V. Robertson, 1 Tenn. Bep. 450, 457, and 463. Oral admissions were received to show a 
 tenancy. Andrews' Lessee v. Fleiiiing, 2 Dall. 93. And md. Jackson ex dem. Burr v. 
 Shearman, 6 John. Rep. 19. In an action of dower, the defendant admitted that he held 
 the land in question under one who claimed to hold as devisee, under the will of the man 
 who conveyed the land to the complainant's liusband. Held, a recognition of the title 
 under which the demandant's husband claimed. Embree v. Ellis, John. Rep. 119. Origi- 
 nal locations of patents made by tlie proprietors, should have great weight in settling the 
 boundaries. Indeed, where the description in the patent is not precise and certahi, such a 
 location should be holden conclusive. Jackson ex dem. Van Slyck v, Vodder, 3 Cain. Rep. 
 210. A man repeatedly confessing that a girl's mother was free, hut detaining the girl as 
 a slave, was held sufficient to establish her freedom, and entitle her to damages against 
 his estate on his death. Pepoon, Guardian of Phebe, v. Clarke, 1 Rep. Const. Court, 137. 
 Where the execution of a will requiring two witnesses is directly sworn to by only one, 
 the declarations of the testator that he had made a will, given in evidence in order to 
 supply the defect of a second witness, must point directly to the paper spoken of by the 
 first witness, or the will cannot bo allowed. Reynolds v. Reynolds, 16 Serg. & Rawle, 82. 
 The acknowledgment of the maker of a lost note suRicos to prove its execution. Latapie 
 V. Qravior, 8 Mart. Lou. Rep. 316. Though one have a deed conveying negro slaves, yet 
 his admission, made subsequent to the deed, that he did not own them, may be received ; 
 and accompanied with a long adverse possession of the negroes (in this case eleven years) 
 by the grantor, will prove the title of the latter ; for slaves lire a ohsttel, and may pass 
 
SEC. X.] j^ec< of Admissions, JSstoppels. 381 
 
 ■without a deed or writing. Bigger's Adm'r v. Alderson, 1 Hen. & Mvmf. 54, 60. Oral 
 admissions are competent only where the fact admitted is the subject of parol evidence. 
 Thus, a contract with, or receipt to a corporation, naming it, cannot he received to prove 
 the existence of the corporation ; for this can be done ordinarily by record only. Welland 
 Ganal Co. v. Hathaway, 8 Wend. 480, 484. 
 
 Admissions by a father that he had given slaves to his daughter were received as suf- 
 ficient evidence of> a perfect gift, and the word given as implying actual delivery, so as to 
 make the gift complete. Hatton v.. Banks, 1 Nott & M'Cord, 223 note b ; Davis v. Davis^ 
 Ex'rs, Id. 225. So, that he had given a lottery ticket. Qrangiac v. Arden, 10 John. Rep. 283.' 
 
 (For a further illustration of the doctrine of estoppel, see Copeland v. Copeland, 28 
 Maine, 525 ; Middlesex Bank v. Butman, 29 Id. 19, 369, 490 ; Starr v. Anderson, 19 
 Conn. R. 338 ; Smith v. Wait, 4 Barb. 28 ; Averill v. Wiison, 4 Id. 180 ; Id. 495 ; 6 Id 589 ; 
 Brewster v. Striker, 2 Comst. 19 ; 5 Denio, 154, 159 ; 4 Harring. 521 ; West v. Tilghman, 
 9 Ired 163 ; Davis v. David, 1 Iowa, 427 ; Van Rensselaer v. Kearney, 11 How. U. S. 29^ ; 
 20 Conn. 18, 90 ; 1 Rhode Island, 393 . Crocker v. Pierce, 31 Maine, 177 ; Norton v. Norton, 
 
 5 Cu*. 524 ; 7 Gratt. 476 ; 13 How. U. S. 807 ; 32 Maine, 127, 305 ; 4 Cush. 433 ; Hall v. 
 Fisher, 9 Barb. 17 ; Id. 500, 615 ; 9 Geo. 23 ; 4 Florida, 28 ; 3 Texas, 93 ; 10 Humph. 298 ; 
 
 6 Poster (N. H.) 401 ; 1 Gray, 195 ; 17 How. U. S. 437 ; 7 Foster (N. H.) 503 ; Hooper v. 
 Stewart, 25 Ala. 408, 440.) 
 
 The taking of a lease of premises and payment of rent thereon, do not estop 
 the lessee from asserting his right to an easement upon the property, after the expi- 
 ration of the term, the lease being taken by the grantees in ignorance of their rights. 
 Child V. Chappell, 5 Seld. 246. Nor is the lessee estopped from showing that the title 
 under which he entered has been extinguished, or that the lease was assigned by the 
 lessor to plaintiff to secure a debt which has been paid. Despard v. Walbri^e, 15 N. Y. 
 R: 374. The relation of landlord and tenant being established on summary proceedings 
 to recover possession of premises, the tenant cannot dispute his landlord's title. People^ 
 v. Kelsey, 14 Abbott, 373. A lease implies an agreement for quiet enjoyment, and this 
 is a good consideration for the promise to pay rent ; not being evicted, the tenant is bound 
 by his lease. Vemam v. Smith, 15 N. Y. 327 ; 4 Comst. 270. A party in possession who 
 has attorned to the plaintiffs and agreed to pay a certain rent for the premises, is estop- 
 ped from insisting that his lessor had no title, unless he shows that the acknowledgment 
 ■W as procured by imposition, or made under misapprehension. Ingraham v. BaldwiUj 5 
 Seld. 45. 
 
 An infant can do no act to estop himself from asserting his title to premises when he 
 becomes of age ; accepting the money arising from an illegal sale of his interest in the 
 property, will not estop him. Ackley v. Dygert, 33 Barb. 176. The act of an employ^, 
 not acting as a general agent, pointing out property in his charge as that of the defend- 
 ants in execution, will not bind them as a consent to a levy in satisfaction of the debt of 
 a third person. N. Y. C. Oil Co. v. Richmond, 6 Bosw. 213. And it is held that the prin- 
 ciple of estoppel cannot be applied to the unauthorized acts of a predecessor in office, 
 where tli,e action is to charge the successor in his official capacity. Mather v. Crawford, 
 36 Barb. 564, 569. Nor to the case where the landlord remains silent while the tenant for 
 years diverts a stream of water. Coming v. Troy Iron and Nail Factory, 39 Barb. 311. 
 
 When a usurious note is given to take up a valid note, and tlie defendant in an action 
 on the usurious note interposes his sworn answer alleging that the note was usurious and 
 void, he will not be permitted in a second action on the valid note to deny that what ho 
 BO alleged under oath was true. Sheppard v. Hamilton, 29 Barb. 156 ; 5 Seld. 241 ; 1 
 Oomst. 274. But in general a sworn complaint or answer does not estop the party making 
 it. Young V. N. Y. C. R. Co. 80 Barb. 229. 
 
 If the owner of property stands by and acquiesces in a sale of it by another person claim- 
 ing the title, and permits the purchaser to pay the price without notice of Ms rights, he 
 is thereby estopped from asserting his title or claiming the property. Rider v. The Union 
 India Rubber Co., 4 Bosw, 169 ; Thompson v. Blanchard, 4 Comst. 303. So, where the 
 maker of a promissory note, annexes to it a certificate that the note is given for value and 
 will be paid when due, and the same is transferred to a party receiving it in good faith 
 for value, free from any circumstances of suspicion ; the maker will be estopped from 
 showing that the note was given for a usurious consideration. Mechanics' Bank of Brook- 
 lyn V. Townsend, 29 Barb. 569 ; 5 Duer, 237, 379 ; 35 Barb. 437. Indeed, the holder of a 
 usurious note, who transfers it for value, without notice and without indorsement, 
 impliedly warrants its legal soundness apd validity (20 N. Y. B. 226), and would of course 
 be held estopped from setting up the defense of usury, as against the party to whom he 
 thus transferred it ; for, where an assignee takes a chose in action by assignment, made 
 with the debtor's assent, and on the faith of what is said by him at the time, the debtor is 
 estopped to impeach it by any defense inconsistent with the debtor's declaration. L'Amo- 
 reux V. Vischer, 2 Comst. 278. * * The act of an agent of a corporation, illegally issuing 
 certificates of stock, does not bind the principal by way of estoppel ; the act is void, though 
 the corporation is liable for the misconduct of its agents. N. Y. & N. H. R. R. Co. v 
 Schuyler, 38 Barb. 534. 
 
 The requisites to establish an estoppel in pais, are discussed in Lawrence v. Brown (1 
 
382 Admissions by Parties. [ch. vin. 
 
 *464 *of that case might he stated even more hroadly than it was there 
 laid do-wTi. A party who negligently or culpably stands by and- 
 allows another to contract on the faith and understanding of a fact whicb 
 he can contradict, cannot afterwards dispute that fact in an action against 
 the person whom he has himself assisted in deceiving; 
 
 It has been determined that a bankrupt was not estopped from bringing 
 an action against his assignees, by having given up his lease to his lessors, 
 on the ground that the assignees were not parties or privies to the trans- 
 action. (1) 
 
 If a party has taken advantage of, or acted voluntarily under, the bank- 
 rupt or insolvent laws, he will not be permitted afterwards to dispute their 
 vkUdity^ as against parties to the proceedings.' 
 
 Thus, in Watson v. Wace,(2) which was an action of trespass to try the 
 validity tif a commission of bankruptcy issued against the plaintiff, where 
 it was proved by the defendants, that the commission issued against the 
 plaintiff in custody at the suit pf the petitioning creditor, who was one of 
 the defendants, and. that the plaintiff had afterwards applied to the Court 
 of King's Bench, under the 49 Geo. Ill, 121, § 14, on the ground that he 
 had becoftie bankrupt, and that his Retaining creditor had proved under 
 the commission, it was held, that the plaintiff could not dispute the validity 
 of the commission. Abbott, C, J., said that " the estoppel arose by mat- 
 ter of evidence^ and that the question was, whether a party having availed 
 himself of the commission for one purpose, could afterwards be allowed to 
 assert to the same judges, before whom he took the benefit of the commis- 
 
 Seld. 394), and in Jewett v. Miller (6 Id. 402), and in Ford v. Williams (24 N. T. 359), in 
 People V. Eeeder (25 Id. 302), in Walrath v. Redfield (18 Id. 452), and in President, &c., pf 
 Mechanics' Bank v. The N. T. & N. H. B. B. Co. (13 N. Y. 599). The decision in Law- 
 rence V. Brown, was placed upon the ground that (in the offer of evidence) no .authorized 
 represeutatidns were shown to have been niade at the sale, or to have been acted upon by 
 the purchaser ; and substantially the, pame decision was made in Jewett v. Miller, in res- 
 pect to an equitable estoppel. In the People v. Reeder, an action brought against the 
 Bheriff and his sureties, it appeared that the sheriff took on execution, certain chattels Worth 
 more than the amount he was directed to collect, and delivered them to a receiptor, who 
 claimed to be and was the owner of them, but gave the sheriff a written receipt for them, 
 describing them as the property of the defendant in the execution, and promising to 
 re-deliver on demand, or pay the value of them to the sheriff. The receiptor having failed 
 to re-deliver, the sheriff recovered a judgment against him for the amount, their valfte, on 
 the ground that the receiptor was estopped from denying the terms of his written agree-' 
 ment ; and, in the action agajnst the sheriff, it was.held that the former judgment was 
 conclusive on the question of title, though he did not collect the amount on the execution. 
 The officer cannot, in such a case, show the title to have been in another person. Penob- 
 scot Boom Co. V. Wilkins, 27 Maine, 345. The last two cases, that of Walratu v. Redfield 
 and that of the Mechanics" Bank v. The Railroad Company, were not cases of estoppel, 
 though the doctrine is discussed quite at length in both of them. An attorney who issues 
 an execution, attends and directs the sale under it, and refuses to name his principals, 
 challenging an action against himself, is estoppe'fl from denying his personal liability for 
 the tiiklri^ and sale Of the property. Ford v. Williams, 24 N. Y. B. 359. The act of 
 bringing the suit, incurring costs on the invitation of the attorney, changes the situation 
 of the parties towaMs each other. 33 Barb. 176. 
 
 ' Where the principal assigns an award in his favor, made under a submission by a per- 
 son assuming to act as his agent, but acting in fact without authority, and a judgment is 
 recovered on the aWard by the assignee, all the parties and privies are bound by it. Low- 
 enstein v. Mcintosh, 37 Barb. 351. The assignment adopts the act qf submission and 
 renders it valid from the beginning. 
 
 Where adjoining owners of lands under water unite in staking out the line between 
 them; and ohe of tliem fills in his lots to correspond with the line thus established, making 
 valuable and permanent improvements upon the lots, the adjoining owner will be estopped 
 from controverting the line thus located and acquiesced in. Laverty v. Moore, 33 Barb. 
 347. The priijeipfe of estoppel does not apply in the case of a person who is not, but 
 holds himself out, as the member of a firm, unress it appear that the credit was given to 
 the firm on the faith of his representations, or at least after the representations so made. 
 Irvin V. Conklin, 36 Barb. 64. 
 
 (1) Heane v. Rogers, 9 B. & C. 577. 
 
 (2) 9 B. & C. 153. And see Id. 886, 587. 
 
BEC. X.] Admission of Title in Another. 383 
 
 Bion, that the commission was invalid. Lord Ellenborough, C. J., gave his 
 opinion to the contrary,(l) and that has never' since heen questioned. 
 
 A petitioning creditor,' who has sued out a commissic^ of bankruptcy 
 upon an affidavit stating the fact of bankruptcy, has been held to be after- 
 wards estopped from questioning that fact. And it was said by the court, 
 that those who had treated a party as a bankrupt, should not afterwards 
 
 be allowed to gainsay their own assertions. (2) 
 *465 If a person having a right to property, whether real or personal, 
 permit or encourage a purchaser to buy such property of another, 
 the person who has the right is estopped from disputing this title of the 
 purchaser. (3) 
 
 In an action for tolls, where a defendant had accounted with the plaintiff, 
 and received credit from him as collector of certain turnpike tolls, though 
 he had not been legally appointed, it was held that, after su-ch an admission 
 of the plaintiff being a person to be accounted with for the tolls, the 
 defendant should not be permitted to dispute his title to recover the balance 
 of the account. (4) The case was compared by Lord Ellenborough, C. J'., to 
 that of a tenant disputing his landlord's title. (5) But in another case, (6) 
 the court appear to have considered that accounting and paying to a person, 
 in a particular- capacity, was only prima facie evidence of his title. 
 
 A pereon who has described himself as a physician cannot afterwards 
 maintain an action for fees as a surgeon. (7) A vendee of goods, who has 
 given to the vendor a bill of exchange in payment, cannot afterwards dis- 
 pute the reasonableness of the charge. (8) 
 
 If a man hold out a woman as his wife, he cannot set up, as a defense to 
 an action for necessaries, that she was not his wife.'(9) So if a woman 
 
 (1) In Goldie v. Gunston, 4 Camp. 381. 
 
 (2) Ledbetter v. Salt, 4 Bing. 636. And see Groves v. Western Canal C]ompany; 5 M. & 
 S. 76 ; Harmar v. Davie, 7 Taunt. 577 ; Like v. Howe, 6 Bsp. 20 ; Clark v. Clark, Id. 61 ; 
 Mercer v. Wise, 8 Esp. 219 ; Flower v. Herbert, 3 Ves. Ben. 326. In Dowden v. Fowle (4 
 Camp. 38), an admission of a petitioning creditor who was also assignee of a bankrupt, 
 was used againtt himself and his co-assignees, though it was contrary to his affidavit. 
 
 (3) 3 Sug. Vend. & Purch. 428 (10th ed.), cited per Our., 10 A. & E. 476 ; Pickard v. Sears, 
 6 A. & E. 469 ; Gregg v. Wells, 10 A. & B. 90 ; Coles v. Bank of England; Id. 437. 
 
 The American authorities support the same doctrine. Whitaker v. Williams, 30 Conn. 
 98 ; Camp v. Moseley, 2 Florida, 171 ; Id. 207 ; Hall v. Fisher, 9 Barb. 17 i Whittingtori 
 ■». Wright, 9 Geo. 23 ; 18 Barb. 435. To operate as an estoppel, the admission or silence 
 of the party must operate as a fraud upon the purchaser, inducing or permitting him to 
 purchase under a false impression, arid the party remaining silent or making the admis- 
 sion must be aware of his rights. Otis v. Sill, 8 Barb. 102 ; Moncure v. HailBon, 15 Penn. 
 State, 385 ; Harlan v. Harlan, Id. 507 ; Taylor v. Zeff, 14 Mis. 483 ; Danby v. Rector, 5 
 Eng. 211 ; Grace v. Mercer, 10 B. Mon. 157 ; Brace v. Barclay, Id. 361 ; 7 Barb, 407 ; Pen- 
 nell V. Hinman, Id. 644 ; Dyer v. Cady, 20 Conn. 563 ; Sullivan v. Parke, 33 Maine, 438 ; 
 Carpenter v Stilwell, 12 Barb. 128 ; Boyston v. Howie, 15 Ala. 309 ; Stevens v. McNamara, 
 36 Maine, 176. When a third person has acted upon an ailmission, the party making it in 
 good faith is estopped from denying its truth. Wells v. Pierce. 7 Foster (N. H.) 503 ; 
 Kingsley v. Vernon, 4 Sand. 361 ; 3 Hill, 319 ; 21 Wend. 172. An admission made in any 
 intelligent form, acted upon by another person in good faith, will estop the party making 
 it when the party so acting upon it will be prejudiced by allowing the truth of the admis- 
 sion to be disproved. Plumb v. C. C. M. Ins.' Co., 18 N. T. 392. The doctrine was applied 
 where the defendants and their ancestor omitted to assert their title, although they knew 
 the premises belonged to them and that the plaintifis, or one of them, had purchased 
 them, and was making valuable permanent improvements tli*reon, in the belief that they 
 and not the defendants or their father owned them. This silence, this omission to assert 
 title, constitutes an estoppel. Brown v. Bowen, 30 N. Y. 519, and cases there cited ; ante, 
 note 129 ; and Booth v. Bunco, 31 N. Y. 346. 
 
 (4) Peacock v. Harris, 10 East, 106. 
 
 (5) See infra, p. 467. 
 
 (6) Dickenson v. Coward, 1 B. & A. 679. 
 
 (7) Lipscombe v. Holmes, 3 Camp. 441. See Veitch v. Russell, 3 Q. B. 938. 
 
 (8) Knox v. Walley, 1 Bsp. 159 ; Solomon v. Turner, 1 Stark. R. 51. 
 
 (9) Robinson v. Nahon^ 1 Camp. 245 ; Watson v. Thelkeld, 2 Esp. 637 ; Munro -v. De 
 Chemant, 4 Camp. 215. In Batthews v. Galindo (4 Bing. 610), Burrough, J., stated, that 
 
384: Admissions hy Parties. [ch. viii. 
 
 *466 *has deliberately held herself out as married, she cannot afterwards 
 claim goods as her sole property against the assignees of the person 
 for whose wife she had passed herself (1) But in a late case,(2) Coleridge, 
 J., is said to have ruled that a woman who had held herself out to the 
 world as unmarried, and had even declared so to a tradesman, who, upon 
 the faith of that statement, had supplied her with goods, might afterwards, 
 in an action brought against her by the tradesman for the price of the 
 goods, plead and prove that at the time of the contract she was in fact- a 
 inarried woman. It may be doubted, however, whether this decision is 
 reconcilable with sound principle. 
 
 In like manner, a person may sometimes be estopped from taking advan- 
 tage of a misnomer in process ; as where he has assumed the name under 
 which he is sued, but which is not really his right name. (3) So if a party 
 gives another reason to believe that he lives out of the jurisdiction of a 
 local court, he will not' afterwards be allowed to prove the fact to be other- 
 wise. (4) 
 
 Where a person has held himself out as a partner to a particular indi- 
 vidual, or under such circumstances of publicity that the individual may be 
 presumed to have acted on the faith of his being a partner, he will be pre- 
 cluded from disputing his liability as a partner.(5) TIjus, where a person 
 
 if a party were sued for a debt, contracted by a woman whom he had held out as his 
 wife, he might have shown that she was not his wife (p. 612), but Best, C. J., said he could 
 not accede to that position (p. 614), That case decided that a person holding out a woman 
 as his wife might afterwards call her as a witness ; apparently overruling the decision of 
 Lord Kenyon, C. J., in Adey's Case (Leach, 345, cit. 1 Pri. 81), though Park, J., appears to 
 have considered the decisions as reconcilable, inasmuch as, in Adey's Case, the prisoner 
 had called the woman his wife in his address to the jury. See 4 Bing. 612. 
 
 So if a wife make representations in respect to her rights of property, inducing 
 others to trust her husband, she will be bound by them, and estopped from asserting 
 their untruth. Cravens v. Booth, 8 Texas, 843 ; Tale v. Dederer, 21 Barb. 286. 
 
 The wife has a, right to manage her separate property and carry on a mercantile busi- 
 ness, 33 N. Y. 518. Acting within the scope of her powers, her representations or 
 admissions ought to Bind her like those of any other person. Where an action. is brought 
 to charge her separate estate, the question in issue is her intention to make the charge ; 
 1 Comst. 462 ; 15 Barb. 555. The act of signing and delivering, with her husband, a 
 joint and several promissory note for personal property purchased by him, does not 
 charge her separate estatp ; for the law will not infer or imply an intention on her part 
 to make the charge, from the mere fact that she executed the instrument ; Yale v. Dederer, 
 18 N. Y. 265, reversing S. C. in the Supreme Court, 21 Barb. 286 ; or subsequently pro- 
 mised to pay ; White v. Story, 43 Barb. 124. The intention to make the charge must be 
 declared in the contract itself ; if that be in writing, the intention cannot be shown by parol, 
 outside of the written engagement ; Yale v. Dederer, 22 N. Y. 540, reversing S. C, 31 Barb. 
 525 ; while in respect to her separate debts, contracted expressly on her own account, the 
 inference is, that she intends to make the charge ; Gardner v. Gardner ; 7 Paige Ch. 112, 
 S. C, 33 Wend. 538. A debt contracted by her for the benefit of her separate estate 
 may be collected out of her separate property ; 18 N. Y. 265, 277, 282 ; Converse V. Con- 
 verse, 9 Rich. Bq. 535; 7 Paige. Ch. 112; 23 Wend. ^71 ; Goodall v. McAdam, 14 How. 
 Pr. 885 ; Colins v. Currier, 23 Barb. 371. At common law the wife does not estop herself 
 even by a covenant ; Jackson v. Vanderheyden, 17 Johns. 167. Under the statute of 1860, 
 she is clothed with many rights formerly vested in her husband ; among them, rights of 
 action for assaults and batteries, and slander ; Mann v. Marsh, 35 Barb. 68, 72. 
 
 (1) Mace V. Cadell, Cowp. 238, cit. by Gaselee, J., 4 Bing. 613. 
 
 (2) Glenister v. Thynne (Lady E.), Q. B., E. T. 1847; Tayl. Bv. 565. 
 
 (3) Beeves v. Slater, 7 B«& C. 487 ; Gould v. Barnes, 3 Taunt. 504 ; Price v. Harwood, 
 3 Camp. 108 ; Morgans v. Bridges, 2 Stark. R. 314; S. C, 1 B. & A. 650 ; Magnay v. Fisher, 
 
 5 M. & G. 778. See also by Wightman, J , in K. v. Wooldale, 6 Q. B. 566, citing Maley 
 V. Shepherd, Cro. Jac. 640 ; Hyckman v. Shotbolt, Dy. 279, b. ; Williams v. Bryant,- 5 M. 
 
 6 W. 447. See contra, Coote v. Lighworth, F. Moo, 457 ; Thurbane's Case, Hardr. 323, 
 cit. 5 M. & G. 787, u. c. 
 
 The maker of a note is, when sued upon it, estopped from denying that the name of 
 the payee in the note is his true name. Davis v. David, 1 Iowa, 427. 
 
 (4) Jefferies v. Watts, 1 N. R, 153. See also Robinson v. Searson, 6 M. & G. 762. 
 
 (5) By Parke, J., in Dickinson v. Valpy, 10 B. & C. 140 ; by Lord Kenyon, C. J., in De 
 Bertram v. Smith, 1 Esp. 31 ; by Creaswell, J,, in Wood v. Argylo (Duke), 6 M. & Q. 983 ; 
 
SBC. X.] Title of Landlord. 385 
 
 allows his name to remain in a firm, either exposed to the public over a 
 shop door, or to be used in printed invoices or bills of parcels^ or to be 
 published in advertisements, he is estopped from disputing his liability as 
 a partner. (1) 
 
 ♦467 * Tenant cannot dispute landlord'' s title. On the same principle is 
 founded the rule, that a tenant cannot dispute, his landlord's title. 
 Where a tenancy is created by a lease by deed indented, the tenant may be 
 estopped from saying anything repugnant to it, according to the strict law 
 of estoppels as applicable to deeds. (2) Where the lease is not by deed, the 
 tenant, or any person claiming under him, (3) is precluded from objecting 
 to the title of a landlord from whom he has received possession, or to the 
 title of any party claiming under his landlord. (4) Thus, where a tenant, 
 upon being told by a party, that the deceased, landlord had devised the 
 prehiises to him, hS,d paid rent td such devisee, and signed an agreement to 
 hold the premises of him, it was held, in ejectment by the devisee agalinst 
 the tenant, that the defendant could not offer evidence that the devise was 
 void by reason of incapacity' in the testator, no ground being shown for 
 imputing fraud to the devisee in the communication made by him to the 
 tenant. (5) Even tho%h a plaintiff, at the trial, in proving his own case, 
 should disclose that he has only an equitable estate, or that he- is entitled as 
 ieo-executor with others who do not join in the action, the tenant who has 
 paid rent to him as landlord, will not be perinitted to avail himself of these 
 ihatters as a ground of defense. (6) So where a tenant has held premises 
 under a corporation, and has paid rent to them, he will not be allowed to 
 contend that there was no demise by deed. (7.) 
 
 by Tindal, C. J., in Harrison v. Heathorn, 6 M. & G. 133, 134. See also Kell v. Nainty, 
 10 B. & C. 20 ; Guidon v. Kobson, ,3 Camp. 802. Where a party lia^ admitted a partner- 
 ship, though h^ may not have held himself out as a partner to the plaintiff, such 
 admission will be evidence againt him, though not conclusive. Ralph v. Harvey, 1 Q. B. 
 845. See Brookbank v. Anderson, 7 M. & G. 295 ; ante note 129 ; Conklin v. Barton, 43 
 Barb. 435. This case shows that evidence is necessary to charge a party on the ground 
 that he held himself out and obtained credit as a partner, when he was not such in fact. 
 Per Miller J., 43 Barb. 438,-441 ; see also to the same effect. Moss v. Jerome, 10 Bosw. 220. 
 
 (1) By Tindal, C. J., in Fox v. Clifton, 6 Bing. 794. The knowledge and assent of the 
 partner is essential in such cases. Id. ; Newsome v. Coles, 2 Camp. 617. As to parties 
 holding themselves oat as members of a provisional committee of a joint stock com- 
 pany, see Reynell, v. Lewis, and Wyld v. Hopkins, 15 M. & W. 517. See also Lake v. 
 Argyle (Duke), 6 Q. B. 477. 
 
 ', jWhitney v. Sterling, 16 John. R. 40 ; Davis v. Allen, 8 Comst. 168, 173. 
 
 (2) Co. Litt. 47 b ; Strowd v, Willis, Cro. Eliz.,382 ; Brudenell v. Roberts, 3 Wils. 143; 
 Syllivan v. Stradling, Id. 208 ; Wilkins v. Wingate, 6 T. R. 62 ; Parker v. Manning, 7 T. 
 R. 537 ; Blake v. Foster, 8 T. R. 487 ; Cook v. Loxley, 5 T. R. 4 ; Brooksby v. Watts, 6 
 Taunt. 888 ; Frogmorton v. Scott, 2 East, 467 ; Hobson v. ^harpe, 10 East, 350. A lease 
 by deed poll is not an estoppel. Co. Litt. 369 b ; Bac. Ab. tit. Leases, O. A lease from a 
 feme covert, infant, or from the crown, is not an estoppel for want of mutuality. Bac. A4). 
 tit. Leases, ; Co. Litt. 353 ; Cro. Eliz. 36 ; Say, 13 ; Morgan v. Ambrosa, Peake Ev. 242 ; 
 B. N. P. 139 ; 2 Ves. 696 ; 11 Ves. 344 ; Palmer v. Ekins, Ld. Raym. 1552 ; Atkinson v. 
 Pierrepoint, Esp. Dig. 30 ; Phipps v. Sculthorpe, 1 B. & A. 50 ; Parry v. House, Holt K. 
 489. See ante, note 129. 
 
 (3) See Doe d. Knight v. Smythe, 4 M. & S. 347 ; Taylor v. Needham, 3 Taunt. 378 ; 
 Doe d. Bullen v. Mills, 2 A. & E. 17 ; Doe d. Johnson v. Baytup, 3 A. & E. 188 ; Doe d. WiUis 
 V. Birchmore, 9 A. & E. 662. 
 
 (4) Doe d. Manton v. Austin, 9 Bing. 45 ; Doe d. Bristow v. Pegge, 1 T. R. 760, n.; Hull 
 V. Vaughan, 6 Pri. 157 ; Fleming v. Gooding, 10 Bing. 549 ; Rennie v. Robinson, 1 Bing. 
 147 ; Doe d. Higginbotham v. Barton, 11 A. & E. 307. In like manner a copyholder, who 
 has been admitted and done fealty, cannot dispute the title of the lord. Doe d. Nepeaa v. 
 Buddeu, 5 B. & A. 626. 
 
 (5) Doe d. Marlow v, Wiggins, 4 Q. B. 367. , 
 
 (6) Dolby v. lies, 11 A. & E. 335. See also Frands v. Doe,, 4 M. & W. 331. 
 
 (7) Stafford (Mayor) v. Till, 4 Bing. 75 ; Rochester (Dean and Chapter) v. Pierce, 1 Camp. 
 466. And see Fishmongers' Co. v. Robertson, 5 M. & G. 194. 
 
 For authorities that the tenant cannot dispute the landlord's title, see Mclntire v. Patton 
 9 Humph. 447 ; Burke v. Hale, 4 Eng. 328 ; Newman v. Mackin, 13 S. & M. 383 ; Stok«8 
 Vol, I. 49 
 
386 Admissions Sy Parties, [oh. vur. 
 
 !''4'68 * What does not amount to admission of title. But-a mere attoito- 
 ment -without payment of rent^ amounting to a bare assent, does not 
 create an estop;|()eL(l) And ;payment^of rent to another party than him 
 under whom the tenant came originally into possession, may (be shown to 
 have been done under a misrepresentation, or under other circumstances not 
 entitling the party to receive it, (2) The tepaijt is not .precluded from show- 
 ing that his landlord's title is determined! either by act of law, bi- by his 
 own act, or by efflux of time. (3) , ,; 
 
 .Effect of acceptance as an admission. Upon the same prineiplej;it seems 
 a party accepting a 'negotiable instrument, and thereby giving an apparent 
 validity to it, is precluded • from disputing the handwriting of the drawer, 
 or from otherwise invalidating the instrument; (4) and although he may in 
 genelral dispute the handwriting of the indorser;(5) yet' whfere the drawer 
 is a fictitious person,(6) the aQceptoMa bound toi^av-to the signafurq 
 *469 of the same person that signed *for the drawer. In two early oases 
 (7) there was a readiness on the part of the judgesito adiniti evidence 
 of forgery, but subsequent cases have excluded such a line of defense: (8) 
 
 Account rendered. When an agent, who i^ emplpyed, to receive money, 
 bnd bqund by his duty'tt? his principal fr^.^! time to time to coinmunicate to 
 him whether the money is receiyed 01: iio^, renders an account from time 
 to time, containing a statement tHat the money is received, he is bound by 
 that acc.ount, unless he can show that the statement was made unintention- 
 ally, or by mistake. (9) ', 
 
 V. McKibWn, 13 Penn. State E. 267; Id. 317j SyWe v. Satidfers, 4 Strobh. 196; 9 Barb; 
 «lg ; 2 New Jersey, 261 ; 12 Ired. 180 ; 11 Hampli. 313 ; Freeman v;Heath. IS-fced; 498 ; 
 may show it terminated'; 16 Ala. 553; 16 Eng. Law & Eq. 282; the teniant's right, as 
 tenant, is precisely that of' Ms landlord; 13 Geo. 386 ; 7 Rich. S. C. 363;' may sho'W'that 
 be 'was fraudulently or "by some mistake induced tO't9,ke the lease ; 20 Penni (8 Harris), 
 60. 'See fflftte, note 139. 
 
 (1) Shep. Touch. 254 ; Cornish v. Searell; 8 B. & C. 471 ; Gravenor v. 'Woodhouse, 1 
 Bing. 38 ; by Buller, J., in Williams v. Bartholomew, 1 B. & P. 326 ; Doe d. Plevin v. 
 Brown. 7 A. & E. 447. But see Ingraham v; Baldwin, 5 Seld; '45.- •■' ' 
 
 (3) Rogers V. Pitcher, 6 Taunt. 303'; S: C, 1 Marsh, 541 ; Williams v. Bartholomew,! 
 B. & P. 336 ; Gregory V. Doidge, 3 Bing. 474. And see GraTenOr v. Woodhouse, 1 Bing. 
 88; Claridgev. Mackenzie, 4 M. & G. 152; Cooper v. Blarndy, I'N. C. 49. ' 
 
 (3) England d. Sybnrn v. Slade, 4 T. R. 682 ; Doe d. Murriott v. Edwards, B B. & Ad. 
 1065 ; Doe d. Jacksonv. Ram8bottom,'8 M. & S; 516 ; Doe d.Lowden v. Watson, 2 Stark. 
 R. 230 ; Blake v. Foster 8 T. R. 487 ; Brudenell v. Roberts, ? WUs. 143 ; Hill v. SaundeM, 
 2 Bing, 113j. S. C, in error, 4 B. & C. 529 ; Hopbraft v. Keys, 9 Bing. 603 j Doe d. Higgin- 
 ■botham v. Barton, 11 A. & E. 307 ; Downs v. Cooper, 2 Q, B. 256. See also Doe d. Cfliver 
 V. Powell, 1 A. & E. 631 ; GouldswOrth v. K'nights; 11 M. & W. 844; Claridgd v. Mac 
 kenzie, 4 M. & G. 152 ; Doe d. Strode v. Seaton, 2 C, M. & R. 738. 
 
 (4) Sanderson v. Coleman, 4 M. & G. 209. ' ' 
 
 ' (5) Macferson v. Thoytes, Pea. R. 20 ; Bbsanqtiet V. Anderson; 6 Esp. 44 ; Coopfer V. 
 I^eyer, 10 B. & C. 471 ; Beeman v. Duck, H M. & W. 351. 
 
 ■ (6) Cooper v. Meyer; 10 B, & C. 488; Robinson v. Yarrbw, 7 Taunt. 465 (both recognised 
 ■and explained in Beeman v. Duck, 11 M. & W. 253, 256) ; Smith v. Chester, 1 T. R. 664 ; 
 Jenys v. Fa:wler, 2 Str. 946 ; Leach v. Buchanan, 4 Esp. 226 ; Price v. Neale, 3 Bnrr. 1354 ; 
 Smith V. Mercer, 6 Taunt. 76. That the acceptance admits the authority of an agent pur- 
 porting to draw as such, see Porthouse'T. Parker,' 1 Canip. 83 ; Robinson v. Yarrow, «< 
 mpra; Jones v. Tumour, 4 C. & P. 204. That it Admits' the style of a firm, see Bass v. 
 Clive, 4 M. & S. 13 ; and the drawer's capacity to draw, see Taylor v. Croker, 4 Esp. 187, 
 cited 2 B! & C! 299 ; Haly v. Lane, 3 Atk. 183 ; also the competency of the drawer to 
 indorse, see Drayton v; Dale, 3 B. & 0. 393 ; Pitt v. Chappetow, 8 M.' & W. 616 ; Mackay 
 V. Wood, 7 M. & W; 420. Concerning the admission of indorsementB by acceptor or 
 indorser, see further Hankey V. WilSon, Bayer; 333 ; Sidford v. Chambers, 1 Stark. H. 326 ; 
 Hemmings v. Robinson. Barnes, 436 ; Jones v. Radford, 1 Camp. 83 ; Carrick v. Vicary, 
 Doug. 680 ; Duncan v. Scott, 1 Camp. 101 ; Lambert v, Oakes, 1 Ld,. Raym. 433 ; Crltch- 
 low V. Parry, 2 Camp. 183 ;, Chaters v. Bell, 4 Esp, 310; Lambert v. Pacl^, 1 Salk. 137. 
 ' f7) Wilkinson v. Lutwidge, 1 Stra. 648; Cooper v, Le Blanc, 2 Stra. 1061. ' 
 
 (8) See by Tiudal, C. J., in Sanderson v. Coleman, 4 M. & G. 308, 318; 
 
 Canal Bank v. Bank of Albany, 1 Hill, 287 ; Cog^U v. Amer. Ex. Bank, 1 Comst. 113 ; 
 Bank of Com. v. 'Union Bank, 8 Comst. 280 ; Edwards on Bills and Notes, 432, 483, 190. 
 
 (9) Shaw V. Pioton, 4 B. & C. 729. 
 
BBO. r.] In Criminal Case*. ' 387 
 
 * Admission of title. It is an established rule, that where wharfingers and 
 Other bailees acknowledge the title of a person for whom they hold property, 
 it is considered as an attornment, and they are conclusively estopped from 
 disputing such title, whatever may be the claim of a third person, at least 
 if they were fully acquainted with the nature-of such claim, when they made 
 the admissions. (1) 
 
 Tn (Ttminal cases. The pule, that a party is concluded by his deliberate 
 statements, applies equally to criniinal cases. Thus, where a prisoner had 
 been married accoi^ding tp the rites of the Roman Catholic church, haying 
 stated at. the. time that he was a Roman Catholic, upon an indictment for 
 bigamy, he was not. permitted to show that at that, time he was a Protest- 
 ant, in order to invalidate the mai;riage.(2) 
 
 Admissions {jftrom, conduct) ffenerally not conclusive.. But in general^ a 
 person's conduct and language have' not the eflFect of operatingagainst 
 *4'7(y him by way of estoppel. (3) ■ Accordingly we have seen, '''thai; in the 
 instance in which the party has assumed a particular character, or 
 has recognized a particular character as belonging to another person, his 
 conduct and language have,, in general, not been deemed conclusive against 
 him. (4) And admissions generally will be entitled to very little weight, 
 where they appear to have been made under a misapprehension of law or 
 fact.(5) 
 
 A person who had given notice to his landlord that he had become bank- 
 rupt, in consequence of which his landlord accepted possession of the de- 
 mised premises, is not estopped from disputing the fact of his bankruptcy, 
 in an action brought by him agajnst his assignees^ the assignees not having 
 teen parties or privies to, the transaction between himself and his lan<f 
 lord. (6) Nor would a person be precluded from disputing a fiat, by sur- 
 f ehdering thereto, or by petitioning the chancellor to enlarge the time for 
 surrendering. (7) 
 
 Admission on Oat/d With respect , to the relative credit and weight of 
 admissions which are not conclusive, it may be observed, that the admis- 
 sions which may be considered as having the greatest force, are those which 
 are delivered on the oath of the party, although they are not necessarily 
 conclusive against him. Thus, it has been held, that a person is not con- 
 cluded, as to the amount of his property, by an oath . taken before commis- 
 sioners under the Property Tax Acts. (8) A sworn entry at the custom- 
 house in the names of a firm, is not conclusive against the person making 
 the entry, except as between him and the crown. ,( 9) 
 
 (1) Gosling V. Birnie, 7 Bing. 839. The rule is laid down with the limitation in the 
 text by Alderaon, B., 7 Bing. 346. But the other judges lay it down in a more unqualified 
 way. See Stonard v. Dunkin, 2 Camp. 844 ; Harman v. Anderson, Id. 343 ; Hawes v. 
 Watson, 8 B. & C. 540 ; I)ixon v. Hamond, 3 B. & A. 310 ; Anon. cit. 3 Esp. 115 • Farring- 
 don y. Clerk, 3 Doug. 134 ; S. C, 3 Chit. B. 439 ; HoU v. Griffin, 10 Bing. 426 ; Evans v. 
 . Nichol, 3 M. & Q. 614. See further Ogle v. Atkinson, 5 Taunt. 759 ; Hardman v. Will- 
 cock, 9 Bing. 382; n. ; Betteley v Reed, 4 Q. B. 511 ; Scott v. Crawford, 4 M. & G. 1031. 
 And gee Story on Bailments, §103, «««eg'., where this subject is fully and scientifically 
 discussed. 
 
 The bailise may defend himself by showing the goods to have been taken from him by 
 a legal proceeding (Edson v. Weston, 7 Cowen, 378); though he cannot^ as a general rule, 
 set up a right of property in a third person. 1 Duer, 79. The lien of a factor, where he 
 has made a general assignment and delivered the gcxDds, may be discharged by a tender 
 of charges to the assignee. Cook v. Kelly, 9 Bosw. 358; 
 
 {Z)'U. V. brgill, 9 C. & P. 80. See also R. v. Hanley, cit. Id. 81, u. 
 
 (3) By Chambre, J., in Smith v. Taylor, 1 N. E. 310. 
 
 (4) Vide supra. Hunt v. Moultrie, 1 Bosw. 531. 
 
 (5) See R. v. East Winch. 13 A. & E. 697. Brewster v. Striker, 2 Comst. 19. 2 Seld. 64. 
 
 (6) Heane v. Rogers, ft B. & C. 577 ; eupra, p. 464. 
 
 (7) Mercer v. Wise, Esp. 319. 
 
 (8) B. v. Clark, 8 T. R. 330. 
 
 (9) Ellis V. Watson, 3 Stark. B. 453. 23 Barb. 456. 
 
388 Admissions by Parties, [ch. tiii. 
 
 Answers in chancery are very strong evidence, by way of admission, in 
 courts of law.(l) Where a hill was filed by the plaintiff as lessee of the 
 dean and chapter of Carlisle, and the defendant offered in evidence an an- 
 swer of the dean and chapter in a former suit, in which they admitted the 
 existence of a modns, it was held to be not only admissible, but strong 
 
 evidence to prove the modus ; and an issue having been directed, 
 *471 Bayley, J., *at the trial, laid great stress upon the answer, as being 
 
 cogent evidence against the defendant in the issue ; observing that 
 it was much stronger than if it had been the answer of an individual. (2) 
 It has been seen that an omission by an insolvent of a particular debt in 
 his schedule, to the truth of which he was sworn, will operate as an admis- 
 sion that such a debt was not due at the time. (3) In one case, (4) Lord 
 Ellenborough, C. J., treated such an omission as very slight evidence, and 
 said it was not enough to prove that the amount was not then due, as there 
 was positive evidence that the bill, upon which the action was brought, was 
 accepted by the defendant for a full consideration. But in a later case,(5) 
 Lord Tenterden, C. J., held that such an omission was conclusive. (6) 
 
 Admissions in deeds. Admissions of a party by deed, under seal, are 
 entitled to great weight, on account of the deliberation implied by the 
 nature of the instrument, if they do not even exclude any contrary state- 
 ment. Between the parties to the deed, at least, and those who claim 
 under them, they may be pleaded in an action founded upon the deed, by 
 way of estoppel, and, though not so pleaded, would generally, as between 
 such parties, have the effect of an estoppel. (7) 
 
 Thus, where a deed of assignment distinctly stated that the consideration 
 money had been paid, it was held conclusive between the parties, although 
 there were pregnant circumstances of suspicion that the consideration 
 was falsely recited, and that the money was not paid. (8) But it seems 
 
 (1) B. N. P. 236, 237 ; Sussex (Earl) v. Temple, Ld. Eaym. 810 ; Doe d. Bigby v. Steel, 
 3 Camp. 115, where the statement in the answer was as to idief; Dartmouth (Lady) v. 
 Koberts, 16 Kast, 344 ; Rumney v. Beale, Qwil. 1861 ; Gully ". Exetex (Bishop) 5 Bing. 
 171 ; Grant v. Jackson, Peake, 203 ; Studdy v. Sanders, 2 D. & R. 847. 
 
 But not for him. His answer to a cross bill shall not be read as evidence for him, 
 though it may be against liim, even in the very cause in which it is called for. Phillips 
 V. Thompson, 1 John. Ch. R. 131,, 141. Under the present practice, his testimony is ad- 
 missible for or against himself. See Code of New York. 
 
 (2) De Whelpdale v. Milburn, 3 Pri. 585; Wood v, Walbridge, 19 Barb. 136. 
 
 (3) Supra, p. 451 ; 1 Kern. 170. 
 
 (4) Hart v. Newman, 3 Campb. 13. 
 
 (5) Nicholls V. Downes, 1 Mo. & R. 13. 
 
 (6) See, also, Thomas v. White, 1 T. & G; 110 ; Hurd v. Poster, 9 D. P. C. 922. 
 
 (7) See Com. Dig. tit. Estoppel, B. ; Fort v. Clarke, 1 Russ. 604. 
 
 (8) Rowntree v. Jacob, 2 Taunt. 141. It seems that if any imposition had been prac- 
 ticed in obtaining such a deed the relief would be in equity. Diet, arg Id. 143. See, 
 also, Shelley v. Wright, Willes, 9 ; Cossens v. Cossens, Id. 25 ; Lampon v. Corke, 5 B. & 
 A. 606 ; Bak^ v. Dewey, 1 B. & C. 704 ; Hill v. Manchester Wator>yorks Co., 2' B. & Ad. 
 544. See Deverell v. Whitmarsh, 5 Jur. 968, infra. 
 
 The same has been held in New York in regard to the consideration of a mortgage. 
 Gilliland v. Failing, 5 Denio, 308. Fraud in the consideration may be inquired into in a 
 proper action (Rogers v. Colt, 1 New Jer. 704 ; Stayton v. Morris, 4 Harring. 357) ; if 
 obtained by fraud the deed is void. Jackson v. Summerville, 13 Penn. State Rep. 859. 
 The recital in a deed, showing payment of the consideration, is prima facie evidence of 
 the fact, but does not prevent the introduction of other proof showing that nothing was 
 paid. Wliite v. Miller, 23 Vt. 380 ; Glen v. Grover, 3 Md. 212 ; Spalding v. Brent, 3 Md. 
 Ch. Decis. 411 ; Wooden v. Shotwell, 3 Zabr. 405 ; Ayers v. McConnell, 15 111. 280. 
 
 The object of an assignment may be shown by parol (Allen v. Hudson River M. Ins. 
 Co., 19 Barb. 443) ; by creditors, or in support of the claim of creditors, it may be shown 
 to have been intended as a mortgage. Tyler v. Strang, 21 Id. 198 ; 6 Hill, 319 ; 4 Seld. 
 416 ; 15 N. Y. 874 ; 16 Id. 336 ; 26 Id. 878 ; 85 Barb. 151 ; 20 N. Y. 39. The intent of the 
 assignor, in making an assignment for the benefit of creditors, may be shown on his 
 examination as a witness by proof of his actual intent, as that it was his object to make 
 his property pay his debts ; Forbes v. Walker, 35 N. Y. 430 ; to gain time ; Griffin v. Mar- 
 
BBC. x] In Deeds. 389 
 
 that even such a statement may be rebutted by evidence of some sub- 
 sequent and distinct circumstances ; as, for instance, if a check was 
 *472 *given and received as money at the executing of the instrument, 
 and was dishonored on presentment. (1) 
 
 It has been laid down in general terms — apparently without sufficiently 
 adverting to the circumstance of the deed being used by a party to it, or to 
 the fact of its being pleaded by way of estoppel or not — that a party who 
 executes a deed is precluded from saying that the facts stated in the deed 
 are not truly stated. (2) But it seems that a party to a deed may contra- 
 dict it, in an action between himself and a stranger to it ; in such a case it 
 cannot be pleaded by way of estoppel, for there can be no estoppel, as there 
 is no mutuality. (3) 
 
 Where a deed is used as an admission against a party to it by a person 
 who is not a party, it seems material to consider that an admission of a factj 
 not made upon oath, may have been entered into between persons from 
 various causes, besides that of a conviction of the truth of the facts con- 
 tained in it. The evidence may have been of a conventional nature 
 merely. (4) 
 
 So, a party to an instrument is not estopped, in an action by the other 
 party not founded on the deed, and wholly collateral to it, from disputing 
 the facts admitted in the deed. (5) 
 
 Even as between parties to a deed, also, an averment, which is mere 
 matter of description, and not essential, will not be conclusive ;(6) such, 
 for example, as the place where the deed was executed,(7) the nature of the 
 land demised, and the like. (8) 
 
 In general, mere matter of recital is not conclusive as an estoppel,(9) 
 especially where it is not expressly pleaded by way of estoppel. (10) Thus, 
 where a plea contained new matter of justification, upon which issue was 
 joined, and a deed was given in evidence, the recital of which directly con- 
 tradicted the new mattei' alleged in the plea, it was held, nevertheless, that 
 the defendant was not, precluded from submitting matter of defense to the 
 jury, and that the recital in the deed ought not to have been treated as con- 
 clusive upon the trial of the issue, the recital not having been pleaded by 
 way of estoppel. (11) 
 
 But if a distinct statement of a particular fact is made in the recital of 
 *473 *an instrument, whether under seal or not, and a contract is made 
 with reference to that recital, as between the parties to that instru- 
 ment, and in an action upon it, it is not competent to- the party bound to 
 deny the recital. (12) Thus where, in a bond to secure the payment of rent 
 under a lease, it was stated that the lease was at a rent of ;£] 70, it was held 
 
 quant, 21 N. T, 121 ; or negatively, that it was not given to delay or defraud creditors. 
 Seymour v. Wilson, 14 N. Y. 56 ; see Vol. 2, p. 647. It cannot be shown in support of 
 the assignment that there was no agreement when it was executed, that the assignor 
 should retain possession. 2 i N. Y. 439. 
 
 (1) Deverell v. Whitmarsh, 5 Jur. 963, C. P. 
 
 (2) By Bayley, J., .n Baker v. Dewey, 1 B. & C. 707. 
 
 (3) Ck). Litt. 852 a, 363 b; Com. Dig. tit. Estoppel C. And see Doe d. Marchant v. 
 Errington, 6 N. C. 79 ; Gaunt v. Wainman, 3 N. C. 69. 
 
 (4) Slaney v. Wade, 1 Myl. & Cr. 338. And see R. v. Scammonden, 3 T. R. 474 ; R. 
 v. Laindon, 8 T. R. 179. 
 
 (5) By Parke, B., in giving the judgment of the court, in Carpenter v. Buller, 8 M. & 
 W. 213. 
 
 (6) Com. Dig. tit. Estoppel E, 6. 
 
 (7) 1 Rol. 864, 1. 25. 
 
 (8) See further Doddington's Case, 2 Rep. 33 ; Skipworth v. Green, 1 Stra. 610. 
 
 (9) Co. Litt. 352 b ; Com. Dig. tit. Estoppel E, 4. See 14 Abbott Pr. 38. 
 
 (10) See 2 Smith Lea. Ca. 443. 
 
 (11) Bowman v. Rostron, 2 A. & E. 295. 
 
 (12) By Parke, B., in giving the judgment of the court, in Carpenter v. Buller, 8 M & 
 W. 212. 
 
390 Admissions by Parties. [gh. viii 
 
 that the defendant was estbpped- from pleading that it was £140 only, and 
 that such amount had been paid. (1) 
 
 Such a material recital will also be binding upon privies; in estates. Thus, 
 in a late case, A., by deed, reciting that he was seized in fee, mortgaged to 
 B. in fee.- Indorsed on this- deed was a memorandum, signed by C., "that 
 by an indenture of surcharge, bearing date, &o., the within premises were 
 charged by me^ the purchaser of the eqinty of redemption thereof, with the 
 payment of the further sum ofj''- Ae-.^ it' was heldj(2) that this amounted tp 
 an admission by C. that he came in under A., and that he was therefore 
 bound by the recital that bound A. 
 
 A recital in a deed will, howeverj be ^jrM?w»yac*e evidence against a party 
 to it, on behalf of a stranger, as an admission. Thus, it bas been held, in 
 an action of trespass against a sheriff for taking' the property of the plaint^ 
 iff, that the plaintiff may give in 'evidence a deed executed by the sheriff to 
 a purchaser of the property, reciting the writ and the seizure and sale of 
 the property under it, and that the deed so produced is prima facie evi- 
 dence of- the facts recited in it. (3) 
 
 (1) Lainsonv. Tremore, 2 A. &E.'395, cit. by Parke, B., M^Mipya. For otlier instances 
 where recital's have been held conclusive, see Shelley v. Wright, Willea, 9 ; Hill v. Man- 
 chester Waterworks Co., 3 B. & Ad. 544 ; Bowman v, Taylor, 3 A.'& E. 278 ; K. v. Stamper, 
 1 Q. B. 123 ; Pargeter v. Harris, 7 Q. B. 708 ; Bpngloe' v. Goodson, 5 N. C. 739. 
 ' (3) Doe d. Gaisford v. Stone, 3 C. B. 176 ; 24 How. Pr. 505. 
 
 (3) Woodward V. Larkin, 3 Esp. 286; See, alsd, Carlisle (Mayor) v. Blamire, 8 East, 
 493 ; E. V. Neville, Peake R. 91. 
 
 Note 130. — The use of recitals in proof of pedi^ee has been already noticed. 
 
 It is proper, perhaps, to notice here an important distinction which prevails between 
 the English and American authorities, a» to the fbrce and effect of the recital of one deed 
 in' an6ther. In England, where the party to one deed thus' recites another, such recital is^ 
 according to our author, merely secondary evidence of the recited deed, as where the latter 
 is lost, or the ■subscribing witness cannot be produced, or where it cannot be established 
 by the usual primary evidenced In such case, the recital comes in like the oral admissioa 
 of ihe party, oi" other secondiai'y evidence. ThiS will'be seen by the authorities cited in 
 the text ; and it isnOt oiice suggiStled' that it iniiy be teceived as pro6f of a primary char- 
 acter.- Whereas, in the United States, the courts require no higher prftof than the recital 
 itself, though the recited deed and; the subscribing witness be both in court. This has 
 been expressly held, not only by the Supreme Court of the United States, but by several 
 of the state courts, not only as against the party reciting, but against all claiming under 
 him, as firivies in blood, privies in estate, or pirivies in law, Carv6r v. Jabkson ex dem. 
 Astor, 4- Pet. Rep. 1, 83, 83 ; Crane v. Morris's Lessee, 6 Id. 598, 611 ; Den ex dem. West 
 •V. Pine, 4 Wash. C. C. Rep. 691 ; Jackson ex dem. Teed v. Halsted> 5 Cowen's Kep. 316; 
 Penrose v. Griffith, 4 Binu. 231 ; per Mills, J., in Mitchell v. Ifaupin, 3 Monroe, 186, 187 ; 
 Bibb V. tickett, Litt. gel. Cas. 309, 313, 313; Kentucky Bank v. Vance's Adm'rs, 4 Litt. 
 Rep. 172, 173. And such recital contaiaed in a bond, is evidence equally high even against 
 the obligie, and all claiming under him.' ' Jackson 6x dem. Looji v. Harrington, 9 Cowen's 
 Rep. 86. But in such case, the bond must be traced to the possession of the obligee. 
 Jackson ex dem. Bradt v. Brooks, 8 Wend 426, 433. And this class of recitals are recited 
 as primary proof of other instruments, even of records ; a ca. sa. for instance. Ransom 
 V. Keyes, 9 Cowen, 128. (See Jackson v. Brooks, 8 Wend. 426 ; S, C, 15 Id. 11 ; and Fore- 
 man v. Stebbins, 4 Hill, 181, to the same eflfect. It is clear, from recent decisions noticed 
 in the present edition, that the English doctrine is the same in substance as the American. 
 The recital is evidence of the facts recited, though not conclusive, so as to shut out proof 
 of fraud or mistake. Evans v. Edmonds, 24 Eng. Law & Eq. 327.) Whether what is 
 stated by a party in a paper delivered by him as an escrow, shaU be received as an admis- 
 sion V Quere. Lansing v. Gaine, 3 John. Rep, 300, 306, per Kent, C. J.) 
 
 The general rule in regard to recitals in deeds or other instruments is, that they are 
 evidfenCe against the parties executing such deeds or instruments and those who claim 
 under them, but not in their favor. McKinnon v. Bliss, 31 N. Y. 306 ; 31 Barb. 180, The 
 recital in a deed is only evidence of tlie recited facts against parties and privies in blood, 
 in estate and in law ; it does not bind strangers, those who claim by title paramount or 
 persons claiming flfom the parties by a title anterior to the date of the reciting deed. 
 Hill V. Draper, 10 Barb. 454, 463. Recitals in an ancient will or deed may be used against 
 a stranger where possession of the premises has been held and continued under them. 
 21 N. Y. R. 306 ; Schemerhorn v. Negus, 3 Hill, 335. The recital in a comptroller's deed . 
 of lands sold for taxes, of proceedings prior to the sule, is no evidence that such proceed- 
 ings were taken ; it must be made to appear thai the statute has been complied with, by 
 
8XC. x>] : ItecUals in Deeds. 391 
 
 *474 * Admissions in writings not under seal. After admissions undei' 
 oath and by deed, those next in order, with regard to credit and 
 importance, are adnii8sion3 by;Writing nqt under seal. 
 
 : A written receipt for money is an admission of great weight against a 
 party, but not conclusive ; and there is no legal objection to his showings 
 if he can, that the money was not received, or that he gave the receipt 
 Tinder a misrepresentation. (1) A receipt upon a negotiable instrument may 
 l)e explained m the. same manner. (^) An indorsement on a deed of the 
 receipt of, sums of money, not being under seal, cannot amount to an estop- 
 pel, and is only evidence for' a jury,- capable of being rebutted by other 
 circumstances in the case. (3) "* 
 
 proof of the, facta conferring authority to seU. Beekman v. Bingham, 1 Seld. 366. Even 
 under a statute rendering the deed priimafaxie, evidence of the regularity of tlie sale, the 
 prior proceedings ni,u8t be proved. Striker v. Kelly, 3 Denio, 333. See Laws of 1850, 
 Ch. 183. As the statute now stands, the comptroller's deed for taxes is presumptive 
 evidence of the regularity of the sale, and all proceedings prior thereto. 1 R. S. 935. 
 6th ed. ; % Kern S41. Independent of the statute the recital goes for nothing. Hoyt v. 
 Billon, 19 Barb. 644. A recital of jurisdictional facts in an order made by a school 
 superintendent ; Bennett v. Bnrch, 1 Denio, 141 ; in an insolvent's discharge, Stanton v. 
 ^llis, 12 N. Y. 575 ; in a Surrogate's order of salej Libbey v. Waffle, 16 N. Y. 180, is not 
 evi4ence of the facts so recited. . But the general rule is Uiat the recital of facts bind the 
 parties to the Instrument and those claiming under them. Smith v. Wait, 4 Barb. 28 ; 
 9 Cowen, 86 ; 27 Barb. 252 ; 12, Id. 240 ; 11 Wend. 422 ; 6 Cowen, 90 ; Wood v. Chapin, 
 13 N. Y. 509 ; Franklin v. Pendleton, 7 N. Y. 508.) 
 
 (1), Stratton v. Kastal, 2 T. R. 366 ; Att. Gen. v. Randal, 2 Eq. Ca. Ab^, cited and 
 approved of, ?,T. R, 369 ; Bauermau v. Badeaius, 7 T. B. 663 ; Skaife v. Jackson, 3 B. & 
 C. 421 ; Farrar v. Hutchinspn, 9 A. & E. 641 ; Wallace v. Kelsall, 7 M. & W. 273 ; Wyatt 
 V. Hertford (Marq.), 3 East, 146 ; Fairmaner v. Budd, 7 Bing. 574. In Alner v. George (\ 
 Camp. 392), Lord Ellenborough, C. J., says, there can be no doubt that a receipt in fiM, 
 \yhere the person who gave iit,was under no misapprehension, and- can complain of no 
 fraud or imposition, is binding upon liim. See. also, Bristow v. Slastman, 1 Esp. 173 ; S. 
 C, Peake, 223. But a receipt in full, obtained by fraud or misrepresentation, is not bind- 
 ing, Benson v. Bennett, 1 Camp. 394, n. If a man give a receipt for the last rent, the 
 former is. presumed to be paid. Gilb. Ev. 142. 
 
 (2) Graves v. Key, 3 fi. & Ad. 318 ; Scholey v. Walsby, 1 Peake, 34. , 
 
 (3) By Holroyd, J., in Lampon v. Corke, 5 B. & A. 611. See also by Best, J., Id. 612. 
 As to a statement of the ■ receipt , of money, contained in the body of a deed, see »wpxft< 
 p. 471. 
 
 Note 131. — Stackjrole v. Arnold, 11 ..Mass. Rep. 27, 82; Peddicord v. Hill, 4 Monroe, 
 373. "The general doctrine of the text that a mere receipt is inconclusive> has been fol- 
 loWiCd by the American courts, without exception, though it will hereafter be seen that 
 they have differed in its application tn the clause of receipt and acquittance in deeds. It 
 is usually considered as a mere admission not acted upon. Like all admissions, it is of 
 course .liable ,to be set aside, vacated or disregarded for fraud, duress, oi improper prac- 
 tices, as has been often done in favor of sailors by the courts of admiralty. Thus, in 
 answer to a libel for seamen's wages in. the admiralty, a receipt in lull of all debts, dues 
 and demands was produced^ The judge said such receipts were frequently taken, where 
 quarrels had arisen at sea, to repel prosecutiofls ; and seamen were denied their wages 
 often until they signed such receipts. This is illegal ; and no such terms ought to be 
 insisted on. Receipts are only prima fade evidence,,and may be examined into. 'Thorne 
 V. White, 1 Adm. Dec. 128 ; Jackson v. Wliite, Id. 179, S. P. Again, where there ia 
 fraud, duress, misconception or mistake in either party, or any improper practices appear 
 in obtaining a receipt, the yi^hole subject <tf the receipt is opened and inquirable into. 
 Jackson V. White, 1 Adm. Dec. 179. Bjit .where, after having had full time to deliberate 
 and take counsel, sailors received their wages, deducting those for certain days of absence 
 
 from the ship, and then gave a receipt in full, held, that it bound them. The judge 
 •475 said: "Where seamen have heea *hurried into unjust compliances, by fraud, 
 
 deception, threats, or improper conduct, palpably imposing upon, deceiving, over- 
 awing or misleading them, I have disregarded receipts for full payment. But discharges 
 given with due delil>eration, and. full explanation of circumstances, should not be set 
 aside on light , grounds." Whiteman et al. v. The Neptune, 1 Adm. Dec. 180. Yet, 
 seamen receiving only half their wages, under advice that they were entitled to no more, 
 the Court of Admiralty being of opinion they were entitled to full wages, disregarded the 
 receipt. The judge said that a. receipt, like a settled account, is only prime fade evi- 
 dence of what it , pariH>rt8 to be ; and if shown to be obtained by fraud or under mistake 
 of fkcts, or in ignorance of legal riglits, it may be corrected in a court of law or equity. 
 
392 Admissions by Parties, [ch, vni. 
 
 THomps^n v. Faussat, 1 Peter's C. C. Rep. 182. H« added a remark equally applicable to 
 all the business transactions of life, , tbat if the legal rights of a party are doubtful, 
 honestly contested, and opportunity given to satisfy himself in relation to them, a receipt 
 giiven by him for less than he is- legally entitled to, will iiot be set aside. Id. ' 
 
 Receipts are not only impeachable for fraud, but ■ any mistake may be shown, and so 
 may any erroneous or false statement in them, though designed by the parties. In a 
 yrori, they may always be contradicted, varied, or explained by oral tesliinpny, as will 
 abundantly appear by the cases. i . 
 
 With regard to the common receipt in full of all demands, though it shall not be taken 
 as conclusive, yet the natural presumption is in its favor, and shall prevail until it is dis- 
 placed by direct proof or strong circumstances. Per Story, J., in Harden v. Gordon, 3 
 Mason, 561. It will be seen by the cases that it is the same with a receipt in full of any 
 particular demand. Thus, in assumpsit for goods, the defendant shon^ed a receipt in full 
 for them, and insisted it should be conclusive : but the plaintiflF was allowed to do it 
 away, by showing that the payment for the goods was in unavailable securities, repre- 
 sented by the defendant to be good, and that he said he would stand acc<Jlintable for the 
 deficiency. Held well, by the Court of Appeals. Trisler v. Williamson, 4 Har. & M'Hen. 
 219. Again, the plaintiff took a note of $1,177 from the defendant, with an indorser, and 
 gave a receipt as for so much money in full of his judgment. There was no express 
 agreement that the note should be a satisfaction. The note when due was protested for 
 non-payment ; and the plaintiff sued out execution. On motion to set it aside, held, that 
 the receipt was only eMemx of payment, and might be explained by parol or other evi- 
 dence. The note was neither paid nor receivied as satisfaction. To constitute a good plea 
 of accord arid satisfaction, both should be averred. The note proved unproductive, and 
 the execution was right. To make the note a satisfaction it should have been received as 
 ■such, and the party agree to run all risks. Maze v. Miller, 1 Wash. C. C. Rep. 328. So a 
 receipted account Was allowed to be contradicted, and proof received that no money was 
 in truth paid. Burnap v. Partridge, 3 Verm. Rep. 144. And a receipt given on a settle- 
 ment is not conclusive, nor does it preclude evidence to show a mistake in the settlement. 
 Wright V. Wright, 2 M'Cord's Ch. Rep. 193, 205. So, a receipt in full of all demands was 
 allowed to be contradicted, and shown by parol to have been intended for an unliquidated 
 claim, leaving a balance struck still due. Ensign v. Webster, 1 John. Cas. 145. So, that 
 it was agreed by the parties at the time not to be effectual till a certain condition should 
 be performed ; and that it was not performed. House v. Low, 3 John. Rep. 378. So, in 
 assumpsit for medicine and services as a physician, the defendant gave in evidence the 
 plaintiff's receipt of $53.96, "it being in full of all demands" against the defendant's 
 intestate. The plaintiff was allowed to prove that the defendant had given him a note 
 instead of the money, and that this was what the receipt meant ; and on producing and 
 canceling the note on the trial, he had a verdict. Putnam v. Lewis, 8 John. Rep. 289. 
 So; where the plaintiff gave a receipt in full for goods sold, yet he was allowed to show 
 that the defendant had made the payment by an order payable on the return of his ves- 
 sel, which had not returned and was mucli out of time ; and held, that this would invali- 
 date the receipt, unless the defendant proved that the plaintiff was to take the risk of the 
 return. Tucker v. Maxwell, 11 Mass. Rep. 143. So a bill of goods, with a receipt in full 
 at the bottom, was met by showing that the plaintiff had received for the goods a note 
 of a third person from the defendant instead of the maney, under circumstances which 
 did not operate as payment, the note having proved unavailable. Johnson v. Weed, 9 
 John. Rep. 310. (The receipt of a part of an undisputed debt, in satisfaction of the entire 
 debt, is not valid by way of accord and satisfaction ; nor is a release, not under seal, given 
 in consideration of a part payment. Fitch v. Sutton, 5 East, 330; Harrison v. Close, 8 
 John. 448 ; Dederick v. Sewall, 9 Id. 333 ; Mechanics' Bank v. Hazzard, 13 Id. 853 ; Sey- 
 mour V. Minturn, 17- John'.' 169. Additional security furnished by the dsbtor from his ow"n 
 means for the payment of part of the debt, will not extinguish the debt. Platts v. Wal- 
 lath, Lalor's Supp. 59. But if the debtor procure a third person to become surety for him 
 by engaging his personal credit or pledging his property for the payment of the sum 
 agreed to be paid, or by other creditors accepting a similar compromise of their own 
 demands, it is a composition operating by way of accord and satisfaction, to extinguish 
 the original debt. Keeler v. Salisbury, 33 N. Y. 648 ; Steinman v. Magnes, 11 East, 399 ; 
 Boyd v. Hitchcock, 20 Johns. 76 ; Douglass v. White, 3 Barb. Ch. 631. 
 
 In the case of a disputed demand, a receipt in full given on payment of part in satis- 
 faction, binds the creditor. Palmorston v, Huxford, 4 Denio, 1G6, and a security given on 
 the compromise of a doubtful claim, is supported by a sufficient consideration. Stewart 
 V. Ahrenfeldt, Id. 189.) 
 
 A receipt in full, on payment of part to a public agent, of a debt due to a creditor 
 '*476 of the "government, though there be no fraud, is not conclusive. Slaughter v. 
 
 Hamm, 2 Ham. Ohio Rep. 371, 375. 
 ' But though a receipt in full even of a settled account be not conclusive, yet to avoid it, 
 it is not enough merely to show that the items in the account are charged below the 
 standard price. Mistake of fact, or tlio legal rights of the party, or ft-aud should appear 
 Lawrence v. The Schuylkill Nav. Co., 4 Wash. C. C. Rep. 563. 
 
SEC. X.J In Writiriffs not Under Seal. 393 
 
 Other receipts of a more specific character stand on the same ground with receipts in 
 full. In an action for rent, the defendant gave in evidence receipts by the plaintiff indorsed 
 on the lease for so much cash, " 163 dollars on account of the within lease, and in full for 
 the second and third quarters' rent." The plaintiff was allowed to prove that the sum of 
 f 115.68, part of the $163, was in truth the note of C, payable at the bank, cabled money 
 by the Receipt, but not paid, C. having become insolvent. Tobey v. Barber, 5 John. Bep. 68. 
 Again ; the plaintiff, surety for J. on a bond, paid the debt, and took J.'s note for the money 
 including usury, and gave J. a receipt for so much money as his share paid on the bond. 
 J. avoided the note for the usury, but held that he was liable for the original inoney paid ; 
 and the receipt was explainable, and did not conclude the plaintiff in ao action against J. 
 Johnson v. Johnson, 11 Mass. Rep. 339. So, a receipt by the solicitor of a mortgage,, of 
 $3,930.90, from a third person, a junior incumbrancer, under a negotiation concerning a 
 redemption or assignment of the mortgage, was explained (for it is entirely open as to the 
 purpose for which the money was received) to mean a payment in satisfaction, or with a, 
 view to buy the mortgage and take an assignment, or as a mere deposit. ' The Court of 
 Errors in this case fully recognized the doctrine that a simple receipt may be explaine4 
 or contradicted by parol, citing the former cases on this question. Monell v. Lawrence, 
 13 John. Rep. 521. So, a receipt for so much money, by a sheriff on an execution, may be 
 explained by showing that certain agreements and arrangements made between the parties 
 were the basis of the receipt, and considered as equivalent to money, and the indorse- 
 ment made in order to effectuate the arfange|iient. Caldwells v. Harlan, 3 Monroe, 349, 
 350, 851. And see Davis v. Hall, 4 Monroe, 27 ; Peddicord v. Hill, 4 Monroe, 373 ; and 
 Williams v. Cummins, 6 Monroe, 157. 
 
 D. & v., two trustees of K., sold lands, and V. received the purchase-money for the use 
 of K., both trustees giving a receipt for it. In assumpsit for money had and received by 
 K.'b administrators against D., held that D. might show the fact though this contradicted 
 the receipt, and so defeat the claim against him. Kip v. Denniston, 4 Jotin. Rep, 23. 
 ^;aere, unless the administrators were fully undeceived before suit brought ? 
 
 In an action for goods sold, the plaintiff gave in evidence the defendant's receipt of 
 "fifty barrels of provisions, for account of" the plaintiff. The defendant was allcjwed to 
 prove that the provisions were in truth left to sell, and be applied on a debt due from the 
 plaintiff to the defendant as executor of B. M'Kinstry v. Pearsall, 3 John. Bep. 319. It 
 should be noted that this receipt was in truth a written contract, and so it is treated by 
 the court. They say it is equivocal, "for account" might mean for a debt, or on commis- 
 sion, or it might import a sale ; and they rather bring it within the class of written con- 
 tracts which, being doubtful on their face, may therefore be explained by parol. 
 
 A distinction should, of course, be made between a mere receipt acknowledging money 
 paid, and a receipt containing an agreement, condition or stipulation between the parties. 
 The latter is in the nature of a contract, and its stipulations or conditions cannot be varied 
 by parol. Thus, where the parties to a charter party settled, and the owner gave a papej* 
 acknowledging to have received a certain sum from the charter in full for the use of the 
 ship supposed to be lost ; and declaring the conditions on which more was to be paid. 
 Held, that oral evidence was inadmissible in an action against the latter, to show a 
 smaller sum paid than had really become due before the ship was lost, and so to Vary the 
 conditions. Smith v. Brown, 3 Hawks, 580. So a bill of lading though it include a 
 receipt, is not within the rule that a receipt may be explained or contradicted by parol, as 
 to the course which the vessel is to take ; and whether the part acknowledging the receipt 
 of the goods be within the rule. '^uere. May v. Babcock, 4 Ham. Ohio Rep. 334. (Between 
 the parties to the bill, an admission in it that the goods were " received in good order" 
 does not preclude the carrier from showing that they were not received in good order. 
 Ellis V. Willard, 5 Seld. 529. See post, note 489.) And any contract acknowledging a 
 consideration stands on the same footing. The acknowledgment cannot be questioned, 
 for the purpose of defeating the contract, unless there be mistake or &aud. Allen v. 
 Luckett, 3 J. J. Marsh. 164, 166, 167. 
 
 This doctrine is farther illustrated in the instance of deeds, infra, where it will be 
 *477 seen that *though the clause of receipt and acquittance may be inquired into, when 
 the consideration is directly in question, yet this shall not in general be done for 
 the purpose of changing the legal effect of the instrument in the creation or modification 
 of the estate. This distinctioh was incidentally noticed in M'Kinstry v. Pearsall, mpra. 
 It has been often held that the usual clause in a deed of land or other property, 
 acknowledging the receipt and declaring an acquittance of the consideration money, even 
 though it be followed by a recMpt of the same money indorsed on the deed, is not^only 
 inconcluave in an action of covenant, assumpsit, &c., for the purchase-money, or any part 
 of it, but some of the cases say it is evidence of the lowest kind ; that this is a mere 
 formal part of the deed, and such receipts on the back of the deed are given every day, 
 when perhaps nine times out of ten there is not a shilling paid. They are, however 
 prima facie evidence of payment, and conclude unless contradicted. Oneale v. Lodge, 3 
 Har. & M'Hen. 43;-{ ; Hamilton v. M'Quire's Executors, 3 Serg. & Rawle, 355 ; Jordan 'v. 
 Cooper, 3 Serg. & Rawle, 564, 570 ; Weigley's Adm'rs v. Weir, 7 Serg. & Rawle, 309 • 
 Wilkinson v. Scott, 17 Mass. Rep. 259 ; Shephard v. Little, 14 John. Rep. 210 ; Bowen v' 
 Vol. L 50 
 
394 Acifnisaipn^hy J^oftie^. [ch> vni, 
 
 Bell, 30 John. Bep. 338; Pritchar^ v. Brown, 4. IJ. H, Rep.,S97,; lyforse v.iShattpck,; 4 ;N'. 
 H. Rep. 329; Hutchineon's Adm'i- and Heirs y. Sinclair, 7 Monroe, 291, 293 ; Gully v^ 
 Grubbs, 1 J. J. Marsh. 388, 389', ?90. So the attlount may be questipned in an action on 
 the covenant of seizin'; and the true consideration sliowii by parol. Morse y- Shattuck, 4 
 N. H. Bep. 329 ; Qiilly y. Grilbbs, l' J. J. Marsh,' 388,889. But "directly ^^e contrary I9 
 holden in'Worth Carolitia, viz : that, such an acknowledgment is conclusiye, and operates 
 by way oif release, whether in adfeed of real or personal; property. Brocket y,.Fospue, 1 
 Euffin, 54' ; S. C, 1 HaSvk^, Bi ;. Spiers y. tilay's Adm'rs, 4 Hawks, 33 ; Graves v. Owter, 
 2Hawks, 576. But a inistake as to the aihountis a yalid cpnsideratloii for a promise to 
 inake up the residue, in an action in which the whole circunjstances may be. inquired 
 intd.' Smith v. Ami?' Ei'r, 3 Ha^ks, 469. So' in lilaryland, the above clause of r^ieipt 
 and acquittance iii a deed is conclusive between the original parties. Dixon v. Swiggett, 
 1 Har. & John. 252, overrulirigr Orieale V, tiocjge, aupat. So in Maine. Steele v. Adama, 
 1 Greenl. Rep. 1 ; Emery y. Chafee, 5 Greenl. Rep. 232 ; see Vol. 2, p. 656. 
 ' And even where this receipt may be questioned in an action for tl^e purchase-money, 
 or on the covenants in the deed, it cannot, nor can any other fapt stated or recited in the 
 deed be inquired into for'the purpose of defeating the conveyance, either in vesting oi^ 
 extinguishing a right, or in any way altering the effeqt of the depd in other particularg 
 beside the mere receipt (Morse y. Shattuck, 4 N. H. E^p. 239 ; Gully v. Grubbs, 1 J. J, 
 Marsh. 388, 389, 390) ;'th6ugh the inquiry is admissible forthe purpose of creating a 
 resulting trust. Pritchird, y. Browii, 4 N. H. Bep. 3fl|7 ; see notes 487, 490. To this last, 
 the authorities a^e numerous, blit need licit be cited..' It more properly cornes under the 
 head of a well-known exception in the Statute of Frauds. 
 
 But where the deed acknowledged a pecuniary payment of $1,100, in the usual fomii, in 
 full; and t'he: plaintiff (one of tte graptqrs)' brought his actioi^ for the whole consideratioiji 
 money, 'on the! ground that he aid his wife had conveyed, the land to the defendant, with 
 the parol understanding arid trust that he should convey to the wife, which he ha^ 
 tefused to do, held, that the action *puld not lie, ; though nothing had in trutb been paid- 
 The grbund of decision! is nbt stated. It probably proceeded on the fprm of the action. 
 Griswold v. Messenger, 6 Pick. 517. ' jllere Was clearly a resulting use, upon yjhich eject- 
 ike'nt 'woUld lie, under the Statute, of Uses, and before that . stat^^te chancery would have 
 relieved. '■•■ ' ' ' , ' ■ •■ '■ ^ 
 
 Thoagh a proni'ssory note express to be for value receiyed, or cont^n. any othei 
 acknowledgment of consideration, yet parbl evidence is admissible hetween the original 
 parties, to pr6ve tliat In fact there TVps no consideration. ' Mills y. Wyman, 8 Pick. 207; 
 Hill V. Buckmiiuster, 5 Pick. 291 ; Amherst Academy y. Cowls, 6 Pick. 4Z'J. So of the 
 acknowledgment of the receipt of the premium in a pplicy of insurance. Millick v. 
 Peterson, 2 Wash. C. C. Bep. 31. This premium may bp st6;wn,to have been a note^given, 
 which was unpaid. Id. ' ' , j^ 
 
 The usual acknowledgment by the grantor in, the deed conveying the equity of redemp- 
 tipn in land, the mortgage not being re^stered, that the pnrchase-mohey, is paid, is at 
 law, prima facie evidence of actual payment, hot only against the grantor but .also as 
 against the mortgagee, and in favor of the grantee Y?itJ>out notice of thp. mortgage, and 
 all felaiming under Qm. But it wou)d be. otherwise in equity, on a bill filed by the mort- 
 gagee to set aside the conveyance of the equity of redemption as fraudulent. The vendee 
 Or person claiming tinder him, iniist then set up actual payment by, the vendee before 
 notice of the mortgage, and prove it, independent of the acknowledgment of the deed. 
 Jackson ex dem. Bounds v. M'Cbesney, 7 Cowen's Bep, 360. 
 
 One conveys laud as attorney for another, and th.e deed contai^ns tie usual acknowledg- 
 ment that the considPtition money is paid. In an action for the money by the princip^ 
 against the attorney, the deed is pnmafade evidpnce that the money was received by the 
 latter, for the use of the former. Thalhimer v. Brinkerhoof, 6 Cpwen's Rep. 90, 102. 
 
 (In Hendrickson v. Beers, which est'ablishes judicially the nature of the game of faro, 
 it was held that a recieipt by the Ibser in 'the game of " seventy dollars in full of all de- 
 mands," did not preclude proof that the sum lost was $1,73^, and that only $70 of that 
 sum had been repaid, and that the receipt was no defense to the action for the balance. 
 6 Bosw. 639. A receipt of nioney paid is only privta facie evjdpnce of the payment : it is 
 not conclusive. 1 Greenl. Bv. § 305. Tlhcontraditted and , unexplained, it becomes con- 
 clusive. Lambert v. Seely, 17 How. Pr. 432. It may be sl^own that a receipt in full of 
 all demands was given in accord and satisfaction, in settlement of damages for a tort. 
 Vedder v. Vedder, 1 Denio, 257. Where the accura,cy of an account is disputed in good 
 faith; and 9, part of the demand paid, and a receipt is given in full of all demands, it is 
 bindlngas an accord and satisfaction, thbugh the rule is. welj settled that payment of part 
 of an undisputed debt does not have that effect. Pabnerston v. Huxfofd, 4 Denio, 166 ; 
 Pierce V. Pierce, 25 Barb, 243. A receipt for work done under a contract is not a satisfac- 
 tion for damages sustained for a breach of it. Foifsch V, Bluckwell, 14 Barb., 607. 
 
 A receipt in full for a bill of goods,, given pn repeiying the debtor's note for the amount, 
 is not proof of payment ; but a receipt 4n full unexplained, givpn on the purchase of the 
 goods and oh receiving tbe note of' a third person for the amount, is primes facie proof of 
 payment. Noel v. Murray, 1 Duer, 885 ; S Kern. 167 ; Edwards on Bills and. Notes, 192- 
 
SEC. X.J Vtrhqi Admissiom.i 395 
 
 *4'?8. *An adjustment of a loss on a policy, though prima fc^ evidence 
 against a person signing it, doea ,npt bind niib, , unless there was a 
 full disclosure of the. circuHxsljainces; of the case.(l) In cases of fraud, or 
 where the, unde/cwriter is mistaken in the law or in a material fact, tjie ad^ 
 justment has been held not. to be conclusive. (2) 
 
 An inventory exhibited by an executor, for.thep^rppsj of obtaining pro- 
 i)p.te in. the Eccji^siaatical Court, seeifls npt to f^je^ip,, general, preSumptivei 
 evidence of his having received assets; (3) and a probate stamp seems npt 
 to he prima fade evidence of the receipt of ^ssets to the amount covered 
 by the stamp. (4) < " 
 
 lit ha^ been held, (5) that it was competent' tO' show a mistake in atf 
 invoice as to the time of credit, though it was in the same case Considered 
 thatjif it had been delivered with the goods, or under a judge's order, th^ 
 party would have been bound by it. ; ., i . ,- . 
 
 •■A bill delivered by an attorney to his client, for ibusiness done during a 
 certain -period, i& strong- presumptive evidence against any additional item 
 within. the same. .period ■;• but the bill is not like a. deed to ioperate' as an 
 estoppeljand the party will be at liberty to prove-the fact of having trans- 
 acted other business for the defendant. (6) I 
 
 A parish certificate is conclusive upon the parish granting it, with respect 
 tothat parish to which it is granted,' and prima facie evidence A*ith res- 
 pect to other parishes. (7) " -, ■ 
 A bill' in ichaneery-is not evidence of the truth-of any fact stated in it 
 as agsanst "the' party in whose name it- is filed, even though hii^ 
 *47ft privitybe ^shown, the allegations therein being taken merely as the 
 suggestions of counsel; it is admissible only t<> prove that a suit 
 was instituted, and what was the subject matter of it.^8) In the Banbury 
 Peerage Case, (9) a question was pfoposed to the judges, "whether' a bill in 
 chancery can ever be received as evidence, in a court of law, to prove any 
 fsLCta either alleged or denied in such bill as filed in chancery ; to which, the 
 judges an8w:ered that, " generally speaking, a bill in chancery cannot b6 
 received as evidence, in a court of law, to prove any fact either alleged or 
 denied in 8ueh bill as filedi. But vhethe* any possible case may be put, 
 
 207 ; .6 Seld. 440 ; 20 Barb. 332 ;,Yo,ung y. Hadley, 27,Barb, 192. A reopipt of notes to b« 
 fcredited on account for rent, means that the amounts received on them shall be so cred- 
 ited.' N. T. Exchange Co. v. De Wblf, 3 Bos-w. 86, 497. All sich receipts are open to 
 explanation.) ■ ' ' 
 
 (1) Rayner V. Hal], 4 Taunt. .725 ; Shepherd v. .Ghewter, 1 Camp. 274. And see thenote 
 by the learptd reporter, p. 276. - Adams v. Saaders, M. & M. 373. 
 
 ' (3) Christian y. Cooinbe, 2 Esp. 489. In the absence of invalidating circumstances, 
 adjustments have been spoken of by the judges as conclusive ; ty which, it is conceived, 
 is only meant that such would be the natural eflfect of the evidence upon the minds W 
 a jury. 
 
 (3) Steam v. Mills, 4 B. & Ad, 657. But see Hickey t. Hayter, 1 Esp. 313 ; S. C, 6 T. 
 B. 384. 
 
 (4) Mann v. Lang, 3 A. & E. 699. By Littledale, J., and Parke, J in Steam v. Mills (4 
 A & Ad. 657), where it was said that Foster y. Blakelock (5 B. & 0. 328), where the con- 
 trary was held, had not been much considered as to this point. See C^ie v. Hunt, 1 C. 
 & P. 180. 
 
 , (5) Bacon T. Chesney, 1, Stark. B. 192. See ftlso Dawson v. Bemnant, 6 Esp. 24. 
 
 (6), Loveridge v., Bbtham, 1 B. & P. 49. 
 
 Note 182. — A bill of parcels on sale note, delivered by the vendor, B.tating the goods as 
 bought of the vendm- and another, is not conclusive evidei^ce against the vendor , uiat the 
 goods were joint property ;. but the real circumstances may be explained by parol. Harris 
 V. Johnson, 8 Cranch, 311. 
 
 . (7) B. V. Lnbbenham, 4 T, B. 251, .A certiiiciate has been said to be Weighty evidence 
 as to other parishes. See by Buller, J., Id., citing the words of Lord Holt. 
 
 (8) Boileau v. Butlin, 2 Exch. B. 665. And see by Lord Kenyon, C. J., ia Doe d. Bower- 
 man V. Syboum, 7 T. B. 3 ; by Tindal, C, J., in Boe d. Trimleston (Lord) v. Eemmis 9 CI 
 & Fin. 749. 
 
 (9) Le Marchant's Gardiner Peerage, App^l 3 ; S. C, 2 Selw. N. P. 714 And see Fer- 
 rers V. Shirley, Fitzg. 197 ; 1 Wightwr. 335 ; WooUeti v. Eoberts, 1 Ch. C». 64. 
 
396 Adniissions by Parties. [ch. tiii. 
 
 which- would form an exception to such general rule, they cannot undertake 
 to say." It will be observed, that the answer of the'judges does not point- 
 edly negative the admissibility of a bill in chancery when produced by 
 way of an admission ; and there are authorities in favor of such evidence 
 being received. (1) The investigation of truth would probably be best pro- 
 moted by receiving the evidence, subject to such observations as might be 
 called for in regard to the usual manner in which bills in chancery are pre- 
 pared.-' 
 
 Verbal admissions. With respect to verbal admissions, it may be 
 observed that they ought to be received with a great deal of caution. It 
 may be a correct principle, that the statement of a person to the prejudice 
 of his own interest, is so far entitled as to be admissible in evidence against 
 him. Still, the repetition of oral statements is always subject to great 
 imperfections. The party from whom they proceed may have been misin- 
 formed, or may not have correctly expressed his meaning, or he may have 
 spoken lightly, and without consideration; even his meaning, if correctly 
 expressed, may have been misunderstood, or a slight alteration of the words, 
 without any design of intentional misrepresentation, may entirely vary the 
 effect of his statement ;(2) where, however, such admissions are deliberately 
 made and satisfactorily established, they are of course very strong evidence 
 against the party making them. (3) 
 
 Admissions must, in all cases, be brought home to the party in a suit, 
 against whom they are used, or to some person who is identified in 
 *480 interest *with him ; and it is not a sufficient ground for receiving the 
 admission, that it, might have been used to the prejudice of the per- 
 son from whom it proceeds. Thus, in an action of trover, brought to 
 recover the value of gopds distrained, on the ground that the defendant 
 was not the plaintiff's landlord, the plaintiff's case was, that he had paid 
 rent to another person, and it was held that the statement of that person, 
 respecting the receipt of rent, was not evidence without calling him. (4) 
 
 Admissions are clearly evidence against a party to the record who has 
 made them. But some questions have arisen as to what persons are to be 
 deemed parties ; the circumstance giving rise to these questions, being, when 
 one person is named a' party on the record, who is only nominally a party, 
 while another is the pbrson really interested. On this subject, it has been 
 held, that admissions are evidence in favor of the other side, whether made 
 by a nominal party on the record, who sues as a trustee for the benefit of 
 another, or whether made by the party who is really interested in the suit, 
 though not named on the record. (5) The following examples will illus- 
 trate the several parts of this rule. 
 
 (1) B. N. P. 235 ; Snow v. Phillips, 1 Sid. 231 ; Taylor v. Cole, 7 T. R. 3, n. 
 
 (2) See by Parke, J., in note to Earie v. Picken, 5 C. & P. 542 ; by Lord Ellenborough, 
 C. J., in R. V. Whitley Lower, 1 M. & S. 637 ; by Alderson, B., in R. v. Simons, 6 C. & P. 
 540. On the effect Of admissions in the Ecclesiastical Courts, see by Lord Stowell, in 
 Williams v. Williams, 1 Hagg. 304. 
 
 (8) See Rigg v. Curgenvew, 3 Wils. 395, 399. 
 
 (4) Spargo v. Brown, 9 B. & C. 935. See Bernasconi v. Farebrother, 3 B. & Ad. 373 ; and 
 by Holroyd, J., in Barough v. White, 4 B. & C. 325 ; by Littledale, J., Id. 338 ; Phillips v. 
 Cole, 10 A. & E. 108. 
 
 (5) An attorney'conducting a cause in court may be called as a witness by the opposite 
 side, and be asked who employs him, in order to show the real party, and so lot in his 
 declarations. Levy v. Pope, M. & M. 410. 
 
 Note 133. — This position, that a naked trustee, that is, a nominal party, because he is 
 on the record as plaintiff, may confess away the rights of his cestui que trust, or the person 
 for whose benefit he sues, must, at this day, be taken with considorablo qualification, in 
 some of the American courts. The case of Bauerman v. liadenius (7 T. R. 659, 664), cited 
 by the learned author, was, for aught that appears, an admission made by the nominal 
 plaintiffs, before the defendant had the least intimation that the claim was for the benefit 
 of others. In Craib et us. v. D'Mth (Id. 666, note b to Bauerman v. Radenlus), the same 
 
SEC. X.] Verbal Admissions. 397 
 
 court which decided the latter case, -went the same length. They received the sworn 
 admission of the nominal plaintiff, an assignor of the bond in suit, made after he had 
 assigned it, in favor of the defendant. The issue was upon the question whether there 
 was an assignment or not, and whether the defendant had not notice of such assignment, 
 and whether he had not obtained the release in fraud of the assignee who brought the 
 suit. The affidavit of the nominal plaintiff sustained the issue for the defendant, and he 
 had a verdict. It does not appear from the case that an assigninent for value, and notice 
 thereof to the defendant, before the affidavit was made, were proved at, the trial, anterior 
 to its production, nor indeed at any stage of the trial. The language of the coiul; is 
 broad in both cases ; that the confessions of a plaintiff on the record are to be receivedj^ 
 Tet the pleadings in the last case seem to admit, that even the release of the plaintiff 
 would have been void, if the assignment had been hona fide, and the defendant took it 
 with notice. Its validity was put on this question at the |triai ; and to this the affidavit 
 related. In a previous case (Payne v. Kogers, Dongl. 407), the landlord sued in the name 
 of his tenant, for an encroachment on his common ; an action which carried notice to the 
 defendant on its face, that the plaintiff was nominal. The defendant obtained a release 
 from the nominal plaintiff; and the court made a rule, on the motion of the landlord, 
 that it should be delivered up to be canceled. So, in a subsequent case, in the Common 
 Pleas (Legh v. Legh, 1 B. & P. 447), the defendalrt having, after notice, obtained a release 
 from the assignor (nominal plaintiff), the court set it aside. Indeed, the difficulty with the 
 English courts seems to have been as to the mode of interfering ; whether sum- 
 ■*481 marily, on motion, or whether the whole *nught be pleaded or put in issue on 
 the trial, or whether the party must not be turned round to the Court of Chancery. 
 Vide Bauerman v. Radenius, passim, and the other cases above cited, and Salk. 360. Yet 
 the whole stood on the record in Craib v. D'.^th, as mentioned supra, without objection. 
 Vide also the reporter's note a to Legh v. Legh (1 B. & P. 448) ; and see Wake v. Tinkler 
 (16 East, 36), where the King's Bench refused to receive a plea of spt-off of a bond given by 
 the plaintiff to a third person, who assigned it to the defendant before suit brought, ^j 
 
 But in New York all the above questions have long been settled in favor of the assignee or 
 eestui que trust. He is regarded as the real party ; and, if after notice of the assignment 
 or trust, g^ven to the person liable on the chose in action assigned, he take a release from 
 the nominal creditor, or pay him, or procure a set-off against him, or work out an appar- 
 ent defense in any other way, through his instrumentality, the whole will be deemed 
 void ; and will be so declared, either on summary application, or upon pleading, or notice 
 and evidence on the trial, according to the manner in which the fraudulent act is. sought 
 to be enforced. Johnson v. Bloodgood, 1 John. Cas. 51 ; WardeU v. Eden, 2 Id. 121, 158 ; 
 1 John. Rep. 531, note, Col. Cas. 137 ; Littlefield v. Story, 3 John. Rep. 435 ; Van Vechten 
 V. Graves, 4 Id. 408 ; Anderson v. Van Alen, 12 Id. 843 ; Briggs v. Dorr, 19 Id. 95 ; Andrews v. 
 Beecher, 1 John. Cas. 411 ; Raymond v. ^uire, 11 John. Rep. 47, 48 ; Bates v. New York 
 Ins. Co., 3 John. Cas. 238 ; Eels v. Pinch, 5 John. Rep. 193 ; Meghan v. Mills, 9 Id. 64 ; 
 Tuttle V. Beebee, 8 Id. 153 ; Raymond v. Johnson, 11 Id. 488 ; Clowes v. Hawley, 12 Id. 
 484 ; Martin v. Hawks, 15 Id. 405 ; Dawson v. Coles, 16 Id. 51 ; Chamberlain v. Day, 3 
 Cowen's Rep. 353 ; Taylor v. Bates, 5 Id. 376 ; Wheeler v. Wheeler, & Id. 34 ; Mauran v. 
 Lamb, 7 Id. 174 ; Hopkins v. Banks, Id. 650. And an attorney having a lien on the chose 
 in action, 6. g. on a judgment for his costs, shall be deemed an assignee. Martin v. Hawks, 
 15 John. Eep. 405 ; Bradt v. Koon, 4 Cowen's Rep. 416. So, one who takes it merely in 
 pledge as collateral security. Wheeler v. Wheeler, 9 Cowen's Rep. 34 ; Frear v. Evertson, 
 30 John. Rep. 142 ; Legh v. Legh, 1 B. & P. 447, S. P. in principle. The doctrine of the 
 above cases stands now fully recognized by the Revised Statutes in respect to set-off. 1 
 R. S. 234, 385, 355. Upon these principles, which regard the cestui que trust or assignee 
 as the real party, it has been lately decided that he cannot be called on by the party 
 opposed to him to testify against his own interest. Mauran v. Lamb, 7 Cowen's Rep. 174, 
 ante, note 19. And this upon the ground that he is a party, and entitled to the same pro- 
 tection as if technically on the record. The nominal plaintiff is also protected on the 
 principle of being technically there. Frear v. Evertson, 20 John. Rep. 143, ante, note 19. 
 
 The last case, basing itself on the above established doctrines in respect to the rights of 
 assignees, decides (and so far qualifies the broad doctrine of the text), that the confessions 
 of the nominal plaintiff on record, made after he had assigned the subject of the action, 
 and notice given by his assignee to the defendant, were not admissible. The action was 
 general indebitatus assumpsit. On trial upon the general issue and notice of set-o^ the 
 plaintiff proved his demand. The defendant then ofered to prove his set-off, by the plain- 
 tiff's confession, made after the action was commenced. This the plaintiff objected to; 
 and to lay a foundation for excluding it, proved tjiat before the plaintiff made the confes- 
 sion, he had assigned the demand sued for to Thompson, as collateral security for a debt 
 which the plaintiff owed him ; and that also before the confession made, Thompson had 
 given notice of this to the defendant. The judge at the circuit, therefore, overruled the 
 testimony offered, as inadmissible ; and his decision was sustained on motion for a new 
 trial. The text of PhilHpps was cited at bar, and the case relied on by him ; so that the 
 qualification of his doctrine may be considered as finally settled in New York. 
 
 In Lewis v. Long, on appeal (3 Munf. Virginia Rep. at p. 14), Coalter, Judge, expressed 
 
398 Admissions by '■Parties. [ch. nrf; 
 
 a very decided opinion, that .to receive the tmtten or oral dedarationA of thef asdgnior after 
 assignment, against the assignee, would be opening a door to fraadalent combinations 
 ■between, the assignor and his former debtor, which would be of dangerous tendency. The 
 court below had' rejected this eWdencef; and he was of Opinion their diecision should be 
 'sanctioned by the Court of Appeals. Thfe other judges did not find it necessary to pro^ 
 Bounce an opinion on this question. In that case, thetaatter in the County Court stood 
 Binch like the above case of Frear V. EvertSon ; but lio notice of the asragnmeut to the 
 debtor was proved to have been given previous to the nominal plaintiff's admission. On 
 appeal, the. District Court reversed the deci^on of the County Court and remanded the 
 .cause with orders to tte County Court to receive the evidence. On carrying the cause to 
 
 the Court of Appeals, it went off on a question of jurisdiction. 
 *482 *In Thomas' Ext *. Denning (3 Harr. & John. 342), the Court of Appeals retersed 
 a judgment in the Kent County'Court, in a'caUse in which they refused' to adiMt 
 the liquidation of a demand between the assignor Of a bond, and the obUgor, made dfte^ 
 the aingnmenf, as evidence for the executrix of the obUgor, in an action against her by 
 the as^gnee in the assignor's name. Stich is the marginal note ; but the Case itself goes 
 farther. The very paper on which the liquidation between the assignor and obligor- took 
 jpliuie mentioned the assignment. So that the obligor had full and seasonable notice ; and 
 though the Case states that no e^denCe "^as given of the assignment, yet it is plain that 
 'the written liqtudation mentioning the fact, Was per se evidence ' of an assignment. The 
 'marginal note is, therefdre, more than warranted; The case is directly the reverse of 
 !Frear v. Evertson, cited siipra from 20 John;' 142 ; and adopts the doctrine of Bauennau 
 V. Radetiius, witil6ut qualification. This inference is the more strong; ar tha^ was. the 
 tonly case cited by counsel. ' ' 
 
 In Plant v. M'Ewen{4 Conn. Rep. 544), C.J- Hosmer.seems to concede the full doctrine 
 of the text without qilalification, as' to a nominal party on the record. And in the previ- 
 ous case of Bulkle^ v. Landon (3 Ccinn. Rep. 76), the court were unatiimouB in declaring 
 the broad rule laid down in the text, citilig the rule from Phillipps, and the cases which 
 he relies upon; and the^ expressly rejiudiate the gerSeral doctrines of New iTork in favor 
 of assignees. See the vol. last cited, pp. 82, 83 and 84; The courts in Pennsylvania go 
 to the opposite extreme : accordingly, iii debt on a single bill, by the plaintiff) who had 
 'assigned it to Ml, the action was in the plaintiff 'S name and title, as trustee of M. The 
 defendant offered to prove the jftaintiff 's teeeipt in full, given after the asagnment. Held 
 inadmissible, though it did not appear expressly, that the defendant had' notice of the 
 issighmeat when the reijeipt v^as given.' Note. ' In Pennsylvania, the assignor, though a 
 yarty on the. record, is not eveii liable fbir coats, and 'Sjay be a/*ritness. The court said 
 it was ground to suspect fraud upon the assigilee.that the money appeared tp have been 
 paid withpat takihg up the billJi Mortbil v. Mortoh, 13 Serg. & RaWie; 107. In any view, 
 this win be found' a case whjch goes farther in the protection of assignees than any we 
 have before noticed. But *here the plaintiff gave a lease as lessor, and then sued foir 
 lent.'assumiJig to Be trustee of K;, an4 to bring the' suit for his benefit; held, that the 
 I)laintiff 's admissions were, Mbtwithstanding;, evidence against K. It did not appear that 
 the) lease was Inade' by the authority; or with the knowledge Or consent of K. Johnson v. 
 KeiT, 1 Serg. '& Rawle; 35. So the declarktion of the defendant, to identify the land sold 
 on execution' against him while in possession; was received as evidence in favor of 
 the piirchaser, though the defendant had before assigiied the same land to trustees for the 
 benefit of his creditors generally, they not having acted on the trust, nor accepted it, 
 ■Buchanan v. Mobre, 10 Serg;' & Rivrle, 275,' 279, 28&. 
 
 In most of the American courts, where the abo've question of evidence has not been directly 
 Idecided, yet, the general dbctrine ' ^pon which i,t rests, that a chiose in action is assignable, 
 and that the assignee shall be protected against any dealing between the debtor and 
 assignor, after notice to the former, or any set-off acquired after such notice, though not 
 before, will be found to prevail to its fullest extent, being in some of the states partially 
 irianetioned by statute, as well as the authority of their courts. Welch v. Mandeville, 1 
 Wheat. Rep. 233; Mahdeville v. Welch, 5 Id. 277'; Corser v. Craig, 1 Wash. €. C. Rep. 
 424; Bholeii *i^. Cleveland, 5 Mason, 174; Greeh v. Darling, 5 Mason, 201; Wistar v. 
 Walker, 3 Browne, li56; M'Cullum v. Coie, 1 Dall. 139 ; Field vi Biddle, 2 Dall. 173, note ; 
 Steele v. The Phoenix Ins. Co., 3 Biun. 306 ; Canby v. Ridgway', 1 Binn. 496 ; Wheeler v. 
 Hughes, 1 Dall. 33 ;' Ihgltes v. Ingles' Bx'rs, 3 Dall. 49 ; Rundle v; Ettwein, 3 Yeates, 33 ; 
 Solomon v.Kihiihel, Sarin. 283; B\iry v. Hartman, 4 Serg. & Rawlc, 177; Brindle v. 
 M'llvaine, 9 Serg. & Rawle,! 72 ; Buchanan v. Taylor, Addis. 155; Aldricks v. Higgins, 16 
 Serg. &, Rawle, 213 ; Boulden v. Hebel; 17 Serg. & Rawle, 312 ; Metzgar v. Metzgar, 1 
 Rawle, 227; Stevens v. Stevehs, Ashtti, 190; Perkins v. Parker, 1 Mass. Rep. 117; 
 Andrews V. Heyring,' 5 Mass. Rep. 310; Boylston v. Bbylstbh, 8 Mass. Rep. 465 ; Dawes v. 
 Boylston, 9 Mass. B6p. 337 r Crocker v. Whitney, 10 Mass; Kep. 316 ; Jones v. Witter, 13 
 Mass. Rep. 304 ; Set^'ent V. Easei Railway Cbrjjoration, 9 Pick. 303 ; Farr v. Hemming- 
 way, 2 Const. Rep. 753 ; Wadsworth V. Griswold, 1 Hani- Law Rep. 17 ; Ston«y v. M'Neil, 
 i Harp. Law Rep. 156; Smith v. Lyons, 1 Harp- Law Rep- 884 ; 'Ware v. Key, 2 M'Cord; 
 378 ; Strong v. Strong, 2 Aik. 373 ; Lampson v. Fletcher, 1 Verm. 168 ; Tichout v. Cilly, 
 8 Verm. Rep. '415; Clark v. Bogersi 2 ffreenl: Rep. 143; Robbins v. Bacon, 3 Id. 
 
SBC. i.] yerbal Admissions. ' 399 
 
 *483 346 ; Swett v. Green, 4 Id.' 385 ; *Dunning v. Sayward, 1 M. 366 ; Moody y. Towle, 
 1 , ,5 Id. 415 ; Smnmerv. Steward, 13 N. H, Rep. 39 ; Carlin v. Dumarthiit, SMhrt. Lou. 
 Rep, tN. S.) 212.; TTiplet, r. Bradley, 6 Monroe, 365 ; SohoCdiag v. M'Gee, 1 Id. 332, 233 j 
 Robbiijs V. HpUey*, Id. 191,, 195 ;, Talbpt v. Cook, 7 Id. 439, to; Clark v.;BQyd..6Id.294; 
 Rawlins v. Timberlake, Id. 234 ; ^harp v. Eccles, 5 Id. 72 j/Harrison v. Ro;rges8, Id. 420 ', 
 Armstrong v. Flora, 3 Id. 46 ; M'Cof mactr v. Smith,' 3 Id. 432 ; Numlin v. WesUake, 2 
 Ham. Eep. 24, 25; Clark v. Boyd, Id; 60 ; M'Cutchfin v. EeJtK, Id. 262 ; Sheftall's Adm'r 
 V. Clay's Adm'r. Charlt. Bep. 229 ; Barrow v.Bispham, 6 Haist. Eep. 110,116. 
 
 A delator who .promises th^ assignee, to pay hipij may be sued in the name of the latter 
 as plaintiff at the i common law. tliernian v, Jackson, 5 Eel;. Eep. 580 ;, Currier T. Hodgr 
 don, 3 N. H, Rep. '82 ; Fairlie v. Dent6n,'8 BarnW. & Cress. 395 ; Wijggin. v. Damrell, 4 N. 
 Hamp. ,Eep. 69. But such prbriiise, if made S.fter the assignment, will not conclude 
 against a good previoujs defense ; fot it is wudiim 'paetv/tA'. LudWcK" t. Croll; 2 YeateS, 
 464; Clay v. ^ohnson,^ 6 Monroe, 661. . Otherwise, if the assignee he induced to take the 
 chose iu action by the , acknowledgment . or promise of the ^ebf oc. Ludwick v. Cfoll; 2 
 Yeates, 464 ; Games v. Field, 3 Teates, 541 ; Weaver t. M.'Corcle, 14 Serg. & Eawle^ 304,j 
 Morrison's Adm'r v. Beckwith, i Monroe, 73 ; Davison v! Franklin, 1 Barnx< & Aoplpli- 
 142. Or merely stand by aud see it assigned and conceal thfe defense. 'Buchanan v. Tay- 
 lor^ Addis. 155. .■.: .. • ■■: ' 
 , In equity, in one ; case, it v^as held tliat the assignee of a bond, without notice of an 
 original equitable c^fense againsit it, cotjild not be met with that defense ; thatj.lteing an 
 innocent purchaser, he did not take subject to an equity existing at the time of the puTr 
 4hid&,'nOr- indeed- When the' bond waS executed. M'Fariane v. Griffith, 4 'Wash. C. C. 
 Bep. 585, 587. This case was, however, confessedly contrary to all the authorities in 
 JPoimsylvania, both »ti!a.w and iniequity ; and is conceived to be quite anomalous. Bar- 
 row V. Bispham, 6 &ilst. Hep. lip, 116 ; .JiJJetjgaj: y. Metzg^J•, 1 Eawle,;327, with many of 
 the cases ««pra. According to Titshout y. Cilly (3 Verm. Eep. ,415),, an assignor in whose 
 name an action is prosecuted, is acc6\intable for any abuse of the prccess, the same as. if 
 he Were the real party. . 
 
 The^admission of a trustee before he came to the trust, e. ^., the assignee of a bankrupt 
 (Fenwick V. Thornton';! Mood,® Malk. 51), 6r of a now executor, made before he became 
 such, is Sot admissible against him. Plant v. M'Ewen, 4 Conn, Bep. 544 See 3 Band, 
 399, 407,408, 409. "And an 'admihisttator's admission is never receivable against the 
 estate, to charge it del)ohisiraes^(/ris. Ciples v. Alexander's AdiA'r,.3 Cpnst. Bep. 767. 
 But where he is plaintiff, his admission 'shall be received against him. . Hill .. v. Bucfc 
 minster, 5 Pick. 891. And iii another case the stdmission of an executor defendant was 
 received against liim. Cobb vl Lmit; 4 'Greenl, 503, 507. 'In other; cases, it is held that 
 an executor's admission of his testator's death shall not eveii'take it out of the Statute, of 
 Limitations. Peck v. Bottsford, 7 Conn. Rep. 172, 178, «i, My.,' Thompson ir. Peters, 12 
 Wheat. 365. , And see Mooers v. White, 6 John. Ch. Bep; 372. The case of, Emerson V. 
 Thonipson (16 Mass. Bep. .429, 431), is directly coniro a^ to the Statute of limitations,; 
 and indeed recognizes the admissions generally of ah execiitor or administrator, as evi;- 
 dehce against hiin. And it was held i'n ahbther ' case, that his admission was evidence 
 against him on trial of an issue to establish the will. M'Craine's Executor's aud DeviseeB 
 y. Clarke, 2 Murphy, 317.. 
 
 The rule admitting the confessions of the party in interest follows the doctrine which 
 has been partially considered and ill'nstriited, that the cestui: gui tihtst or assignee is the 
 real party In the' suit; his admissions and his acts are those of the party, and are .of 
 course all evidence against him ; he has the complete control and may confess away t^r 
 release the sulgect matter bf the suit, or discharge or impair his claim in any w?,y. Thusi 
 the leteor' of the plaintiff, being the real party, may bind 'himself,, and those claiming 
 under him, by his acts. Jackson ex dem. Goodrich v, Ogden; 4 John. Bep, 140. 
 
 The defendant may, call the plaintiff's attorney in court as a witness.and ask him wlio 
 retained Ijhn, in order to show the real party, and so let in ids declaifetions. (Levy v, 
 Pop^, 1 Mood. & Malk. 410. 
 
 In assumpsit by Kemble, on an agreement purporting to' have been made vrith him on 
 behalf of himself and.the other proprietors bf Covent Garden Thipatire, the admissions of 
 Willett,' another cb-proprietor, were held admissible in evidence against the plaintiff. 
 They are like the admissions of a principal against a broker. Suing on a policy of ii^siiT- 
 ance. Kemble y. Farren, 3 Carr. & Payne, 633: So on a bond-taken by A-> the plaintiff, 
 intrust for B., the admission of payment by the latter, i8 evidence against the plain- 
 tiff. Calvin v. Hamilton, 4 Wash. C; C. Bep. 92. And in an action against the sheriff fqp 
 a false return npon a junior _/i.'/o., on the ground that the senior fi. fa. of E. & H., under 
 which he sold, was dormant and fraudulent, though the declarations of E. & H. were 
 held inadmissible to charge him ;' yet' Marcy, J., said, if thfiy had indemnified the sheriff 
 and thus became parties in interest, their admissions would have been receivable against 
 him. Benjamin v. Smith, 4 Wend. Rep. 3^, 335. ' , 
 
 But the declarations of a person named *s executor and devisfee in a papejr, purporting 
 to be a last will, are not evidence to iinpeach it in a suit to which he is not a nominal 
 party, though the event depend on the validity of the paperas a last will, lightner v. 
 
400 Admissions^ bj/ Parties. [ch. thi. 
 
 *484 * Admission by party suing for benefit of anotker , la the case of 
 ;. Bawerman v. Radenius,(l) which was an action by the shippers 
 of goods against the captain of a ship, for not delivering the goods in 
 pi^oper condition, a letter, written by the plaintiffs, was given in evidence 
 on the part of the defendant, in which they entirely exculpated the defend- 
 ant from all misconduct ; a,nd it appeared, also, from the letter, that the 
 goods were shipped on the risk of third persons, and that the plaintiffs were 
 not really interested in the suit; the counsel on th6 other side contended 
 that the parties really interested ought not to be concluded by the admis- 
 sion of the plaintiffs, who were merely nominal parties in the action; Lord 
 Kenyon, C. J., was of a different opinion, and the plaintiffs were nonsuited; 
 The Court of King's Bench afterwards affirmed the nonsuit. Lawrence, J., 
 on that occasion said : " The persons on whose risk the goods were shipped, 
 are in this difficulty ; the present plaintiffs either have or have not an mter- 
 est ; but it must be , considered that they have an interest, in order to 
 support the action ; and if they have, an admission made by them, that 
 they have no cause of action, is admissible' evidence. I have looked into 
 the bo^ks^ to see if I could find any case in which it has been holden that 
 an a,dmissioh of a plaintiff on the recor^ was not evidence, but have found 
 none." 
 
 In Alner v. George, (2) it was held that a receipt in full, given by the 
 *485 *plaintiff on the record, could not be invalidated at the trial by 
 
 showing that the plaintiff had assigned all his interest, and was a 
 mere trustee, and that the receipt was fraudulently given. It has been seen 
 
 _Wike, 4 Serg. & Rawle, 303 ; Bovard v. Wallace, Id. 499, S. P., as ,to a devisee, On an 
 issue of demscmt vel non, the admissions of a devisee to whoni all the estate was devised 
 for life, except some trifling legacies with remainder over, were offered ia evidence to 
 prove the testator's insanity. The court said the parties here are merely nominal, and 
 the devisees are the real parties, but others are interested, and the testimony was excluded 
 for that reason ; though the court admitted it would have bpen receivable, if the devisee, 
 making the admission, had taken the whole interest under the will. They said the find- 
 ing of the issue would be conclusive on others, as to the personal estate ; thourfi it might 
 . not as to the real. Nussear v. Arnold, 13 Serg. & Rawle, 333, 338, 329. Vide a like 
 point, Phelps v. Hartwell, 1 Mass. Rep. 71. But quere. See Atkins v. Sanger, 1 Pick. 
 192 ; though the court said the latter case did not interfere with Phelps v. Hartwell. In 
 an action by the holder of a negotiable promissory note for $150, pledged to the plaintiff 
 by S. for $50 or $60, against the maker, held," that the defendant could noit give S.'g 
 declarations in evidence to defeat the action. Butler y. Damen, 15 Mass, Rep. 222. 
 
 (The admissions of an executor or administrator, cannot be received in evidence either 
 as against his co-executors or co administrators, or as against heirs and devisees. Elwood 
 V. Deifendorf, 5 Barb. 898, 407. See post note 140. Nor are the admissions of a wife made 
 after her marriage competent to sustain a suit against her husband^ and herself, for her 
 debt contracted before marriage. Lay Grae y. Peterson, 2 Sand. 238 ; Ripley v. Mason, 
 Hill & Denio, 66. But the admissions by a husband during coverture of payment of a 
 legacy which had been bequeathed to his wife, is admissible in evidence as proof of such 
 payment, in a suit by the wife after his death, the husband having the right to receive 
 the legacy. Dodge V. Manning, 11 Paige, 334. 
 
 One of the trijptees of a school district cannot by admissions made without the concur- 
 rence of his co-trustees, relinquish the title of the district to premises occupied as a school 
 house by attorning to a party claiiping title. Walker v. Dunspaugh, 30 N. Y. 170. The 
 Statements of the officers of aggregate corporations, not made while acting officially, are 
 nbt admissible against the corporation. Commissioners v. Plank Road Co., 7 How. Pr. 94, 
 The president of a bank holding a note made by the defendant called upon him for pay- 
 ment, and the maker insisting that it had bepn paid, they proceeded to ei^amine the 
 books of the bank, and during the examination the president declared himself satisfied 
 that the note had been paid, and the court held his declaration admissible against the 
 bank. Bank of Monroe v. Field, 2 Hill, 445 ; 18 Barb. 69 ; 19 N. T. 305. Such admissions 
 or declarations are admissible on the ground that they form a part of the res geata.) 
 
 (1) 7 T. R. 663. See also Craib v. D'^th, Id. 670, n. ; Alner v. George, 1 Camp. 892 ; 
 Gibson v. Winter, 5 B. & Ad. 96. 
 
 (2) 1 Camp. 393. See Gibson v. Winter, 5 B. & Ad. 96. The proper remedy is by appli- 
 cation to the equitable jurisdiction of the coirt; by Lord Ellenborough. C. J., 1 Camp. 
 893. Where a nominal party gives a release, the courts will sometimes order it to be 
 delivered up. Payne v. Rogers, Doug. 407 ; Legh v. Legh, 1 B. & P. 447 ; Innell v. New- 
 
SEC. X.J Pwrties to'the Me^mfi . 401j 
 
 tjiat.it is competent 1,9 a pairty to,^he record, who has giveHia receipt, ta 
 ^fl'tf ^hat it was given iUnderimisi-epresentation or misapm-ehension ;(1) but 
 iq the case under consideration, the eyicjence would ,be offered on behalf, of 
 persons who were npt parties to thp; record, fcir the purpose of showing a, 
 fr^udbetweeiji those who were so. ; , , , 
 
 The rule in question does not apply to cases where an infant sues byhi^ 
 guardian or prochein ami: the deolai-ation. of such, party "w^U not, in gen- 
 eral, b(B a^in^ssible against the infant, (2) fpr the guardian or jorpcheiniami 
 js to be ,C(>nside(red as an crfScer.of the court, specially. ^.ppoipted by them 
 to look after the interests of the infant, (3) and who aotp, in fact, as hi^ 
 attorney. (4) Admissions, hpwever, made by such a party, especially for 
 the. purpose of the cause, would stan^ upon another ground, and,, be con- 
 sidered in the same light as similar ,9,dmissions. made by the attorney in 
 the,«au8e. (5) But it has been held that the answer of the guardian of an 
 infant defetndant in^ chancery, ' cannot be read .against the defendant in 
 another. suit ;(6) though being made by, the guardian 1 upon oath, it may be 
 used against; hiiuBelf,, where he ,?ues or is sued in his private capacity. (7), 
 
 *486 * Admissions by persons beneficially mterested. The second 'branch 
 
 of the rule as to admissions "bj the person really interested in the 
 
 suit, ^hough not a party to the regqrdj is rather more difficult of application. 
 
 In an action by trustees, if it distinctly appears, that the cestui que trust 
 alone is entitled to the benefit resulting from the action, his statements will 
 be admissible in evidence for | th^e defend9.nt ; but in order to render such 
 statements binding iq)on the plaintiff, the nature of his iiiterest in the trust 
 estate must be shown.(8) 
 
 In an action of d^bt upon a, bond conditioned to pay money to L. D., for 
 whose benefit the potion was brought, (9) the defendant proved that L. D. 
 
 inan,4 B. & A'.-419i' Hickey v. Burt, 7 Taunt. 48i; Mountsteplien v. Brookfe, 1 Chit. R. 
 390 ; Manning v. Cox, 7 Moo. 617 ; Barket- v. Richardson, 1 T.i& J. 363. But in Phillips v, 
 Clagett (11 M. & W._93), Parke, B., doubted whether the court had any authority to make 
 such an order, and considered the proper course to be, not to allow the release to be 
 pleaded. See also Crpok v. Stephen, 5 N. C. 688, 691 ;' Wild v. Williams, 6 M. & W. 490; 
 Jones V. Herbert, 7 Taunt. 421 ; Arton v. Booth, 4 Moo. 193 ; Herbert v. Pigott, 3 C. & M. 
 384 ; Raw8torne.v. Gandell, 15 M. & W. 304. 
 
 The fact that a plaintiff sues as a trustee does not ordinarily exclude his admission. 
 (Tenny v. Evans, 14 N. Hamp. 343 ; Franklin Bank v. Cooper, 36 Maine, 180. But thd 
 admissions of a nominal plaintiff, who has parted with his interest in the cause of action 
 are not admissible. Dazey v.' Mills, 5 Oilman, 67. And the rule is well settled in this 
 country, as stated in a previous note, that the admissions of an assignor, made after his 
 assignment, are not receivable in evidence against his assignee. Frear v. Evertson, 20 
 John. R. 142; The State' v. Jennings, 5 Eng. 428; 17'MiS. (2 Bennett) 284; Gilljghan v. 
 Tibb'etts, 33 Maine, 360. A^i what is a Receipt but an admission of payment? The 
 asSignineht divests tlie assignor of Jilt Intetest in or control over the thing assigned. Beck- 
 with V. The Union Bank, 5 Seld. 211: contra, the assignment of ,an account is not com- 
 plete, as against the debtor, until notice is g^ven to him. ' Loomis & Jackson v, Loomis, 
 86. Vt. 198 ; 14 Conn. 141. Till then a receipt by the assignor will be good aa against the 
 asmgnee, Catnpbell v.lDay, 16 Vt. 558. 
 
 (1) Vide aUpra, p. 474. . 
 
 . Cowling V. Ely, 2 Stark: R 366 ; Webl) v. Smith, Ry. & M. 106. See James v. Hat- 
 fieid', 1 Stra. 548, contra. 
 ■ (3) By Parke, B., in Morgan v. Thome, 7 M. & W. 400, 408. 
 
 (4) By Ald'erson, B., Id. And see by P6llock,'C. B., in Sinclair v. Sinclair, 13 M. & W, 
 64e,-646. 
 
 '(5) Infrk. The guardian ad litem cannot admit or waive proof of facts necessary tc a 
 jfecovery against infant defendants. Litchfield v. Burwell, 5 How. Pr. 341. As to the ap- 
 plication of certain payments which were made by a pterson who was adtolnistrator and 
 also guardian of certain minor Children, see Elliott v. Gibbons, 31 N. Y. 67. 
 
 (6) Eccleston v. Spoke, 3 Mod. 2^8; S. C. nom. Bccleston v. Petty, Carth. 79. 
 
 (7) Beasley' V. Magrath, 2 Sch. & Let 34. 
 
 (8) May V. Tayloi-, 6 M. & XJ. 361. ^ee Also Doe d. RoiViatidBon v. Wainwright, 8 
 A.&B. 69i; 
 
 (9) Hanson v. Parkeri 1 Wils. 367. See Davis v. Dinwdody, 4 T. K. 678. 
 Vol. I. 51 
 
402 Admissions by Parties. [oh. vinj 
 
 bad said, in a conversation rekpeeting 'tlys bohd^ that the defendant owned 
 nothing, upon which the jury foufid for the defendklit. On a motion for a 
 new trial, it was argued that the declarations of L. D., who was not a party 
 to the action, ought not to affect the plaintiff; but the court said that the 
 case was to be considered as if L. D. was the plaintiff, the action being for 
 L. D.'s benefit; ' 
 
 Where A. deposited a sum of money with B. to distribute amongst A.'b 
 creditors in proportion to their clairds ; it was held in an action by C. against 
 B.," that A.'s declaration was evidence to show that C. was his creditor to a 
 Specific amount.(l) ■ i , 
 
 In trover for a deed, which the defendant admitted he detained for a third 
 party, and in ihe detention whereof the latter was substantially interested, 
 the declarations of such party were held to be admissible; (2) 
 
 An action upon a policy' may be brbiight'in the name of the person who 
 effected it, though he be not the person interested : yet the persons inter- 
 ested are so far looked upon as parties to the suit, that the declarations of 
 any of them are admissible in evidence against the plaintiff. (3) 
 
 In an action by the master of a ship for freight, the declarations of the 
 owner of the ship are admissible against* the plaintiff, as the action is 
 brought for the owner's benefit. (4) 
 
 In the case' of Hart v. Horn, (5) which was an action of replevin, Heath^ 
 
 J., rejected the declarations of the person under whom the defendant made 
 
 cognizance; but it maybe doubted whether this case would now 
 
 *487 *be acted upon, especially since LordiDeAman's Act, as the conusor 
 
 in replevin is the party Substantially interested in the case. (6) 
 
 With respect to admissions by rated parishioners, it seems that upon an 
 appeal against an order of removal, wfieite the parochial ofiicers are the 
 nominar parties, the declariitions of a rated inhabitant of the appellant 
 parish are evidence against that parish, without calling the inhabitant, and 
 showing that he refused to be examined. (7) 
 
 (1) BobBon V. Andrade, 1 Stark. E. 372 ; S. C, % Clvit. R. 363. 
 
 (3) Harrison v, Vallance, 1 Binjg;. 45, And see by Bayley, J., in Spargo v. Brown, 9 B, 
 &C;938. 
 
 (3) By, Lord Ellenborough, C. J., in Bell v. Ansley, 16 East, 143. See also Bell v. Smith, 
 5 B. & C. 188 (Where a creditor obtains an insurance upon the life of his debtor, the 
 admission of tlie latter, made after th^' issujug of the policy, that bis habits were intem- 
 perate, cannot be received in evidence against the former ; nor, in an action on the policyj 
 can the insurance company show that an intemperate person is not regarded by insurers 
 as an insurable subject ; nor can it show by the examining physician that he would not 
 have regarded the life of such an one as healthy and the risk good. But it is competent to 
 show that the physician's statement on the application was made in good faith. Rawjg 
 V. American M. L. Ins. Co. 27 N. Y, 382 ; 7 Wend. 72, 78, 79 ; Campbell v. Richards, 5 
 Barn. & Adol. 480.) 
 
 (4) Smith V. Lyon, 3 Camp. 464. 
 
 (5) 3 Camp. 93. 
 
 (6) As to the admissibility of declarations, made by the indorser of n bill while he was 
 holder, in an action against a subsequent holder, see Walstead v. Levy, 1 Mo. & R. 488. 
 
 (7) R. V. Whitley Lower, 1 M. & S. 686 ; R. v. Hardwicke, 11 East, 579 ; R. v. Woburn, 
 10 East, 395, 402. Before the 54 Geo. Ill, c. 170, the admissions of rated parishioners were 
 received on account of their being parties to the suit. See also S & 4 Vict. c. 25 ; & 7 
 Vipt. c. 85. The statutes which render parishioners competent witnesses, do not inter- 
 fere with the rule of evidence respecting admissions, as the statutes do not render it com- 
 pulaory upon such persons to give evidence. See R. v. Adderbury (East), 5 Q. B. 187. In 
 the case of London (Corporation) v. Long (I Camp. 32), where the question related to the 
 powers of* a qity officer. Lord Ellenborough, C. J., held, that the declarations of an indiffer- 
 ent individual of the corporn,tion were not admissible, but that he would admit what the 
 officer himself had been heard to say upon the subject. 
 
 Note 134. — The admissions of corporators and quasi corporators. In the United States, 
 are received or rejected upon much the same principle as governs in respect to admissions 
 of agents. We have seen ante, that in quari corporations, or where the corporation has a 
 public object, the corporators are often ooijsicl^red competent witnesses for or against the 
 corporation, or in other words, the civil divisipn of the state. Of course their admissions 
 
BBC. X.] By Bankrupts. 403 
 
 *488 *A creditor who has indemnified a sheriff, for making a seizure under 
 a tmt of execution, is considered as substantially the defendant, in 
 
 are not receivable like those of rated inhabitauts in Engfland, which, as intimated in the 
 text, would not be received even there, since the statute making the corporators witnesses. 
 The cases and authorities which follow are thrown together for the purpose of illustra- 
 ting the principle on which the admissions of private corporators are received. As to 
 their competency to testify, see also ante, note 21. 
 
 In the Hartford Bank v. Hart (3 Day, 491), charging him as indorser to the plaintiff of 
 a note, the defendant offered in evidence the confessions of the president and directors 
 of the bank, that they knew the indorsement to be a forgery when they received the note. 
 The court held, that their confessions were those of individual corporators, and like those 
 of any other stockholders, and therefore not receivable ; though their declarations as a 
 board, while acting on the subject as agents for the bank, would be receivable like the 
 declarations of any other agent which are a part of the res gestm. By a statute of New 
 York, " In suits by or against an aggregate corporation, the admission of any member 
 thereof not named on the record as a party to such suit, shall not be received as evidence 
 against such corporation, unless such admission was made concerning some transaction in 
 which such member was the authorized agent of such corporation." 2 R. S. 407, § 80, 
 ante, note 133, p. 484. But it wiU be perceived by the above and other cases, that the 
 admission of the agent is not then receivable, unless his admission is part of the ret gestcB. 
 For where, in an action of aesumpsit for the money in a bag of dollars, against the Presi- 
 dent, Directors and Company of the City Bank of Baltimore, the court below received 
 evidence of the president's declaration or admission, that a bag of dollars, which was 
 afterwards taken into the bank by one of the directors and converted, was the property 
 of the plaintiff; it was held, on appeal, inadmissible ; not being part of the res gesfce, but 
 an independent disconnected admission of a past transaction ; and this though the presi- 
 dent was a part of the defendant's name on the record ; for this was but a part of the 
 name of the corporation. He was a mere agent, and should have been called as a witness. 
 The City Bank of Baltimore v. Bateman, 7 Har. & John. 104. But in assumpsit .for ten 
 kegs of dollars, against a bank, the plaintiff proved that they, being brought to the bank 
 against the plaintiff's will, were paid out for the debts of the bank by direction of H. & B. 
 president and cashier pro tempore; and this was held admissible, though H. & B. were 
 both within reach of the process of the court ; because a president and cashier of a bank 
 may direct money in the bank to be paid out for the debts of the institution. The City 
 Bank of Baltimore v. Bateman, 7 Har. & John. 104. In ejectment for land claimed by the 
 defendant in behalf of a religious corporation, the declaration (an ex parte affidavit) made 
 by a member and one of the trustees of the corporation, was offered in evidence by the 
 plaintiff against the corporation. Held inadmissible. The court say the evidence was 
 not of an act of the agent of the corporation, or a declaration while transacting the busi- 
 ness of the corporation ; but of confessions made afterwards. An agent is autliorized to 
 act; and therefore his acts explained J)y his declarations during t/ie time of action, are obli- 
 gatory on the principal ; but he has no authority to make confessiona after he has acted. 
 Magiil V. Eaufiman, 4 Serg. & Rawle, 317, 321. A corporation will not be affected by a 
 declaration of one of its members as to what had passed at a meeting of the congregation. 
 This would be but hearsay evidence. What passed should be proved by the oath of some 
 person .who was present, unless it was reduced to writing ; and then that alone would be 
 admissible. Magiil v. Eauffman, 4 Serg. & Rawle, 317, 331. In an action by a bank on a 
 single bill, the defendant offered in evidence the admissions of the officers of the bank, of 
 what they told a witness as to the manner in which the debt was to be discharged. Held 
 inadmissible, it not appearing that such declarations were authorized by the board of 
 directors. Stewart v. The Huntington Bank, 11 Serg. & Rawle, 267, 269. In an action by 
 a bank against an indorser on a note, a receipt given by the president to the defendant, 
 of money received to be deposited in the bank to the credit of the defendant, is evidence of 
 payment, though the president simply signed his name without adding his title as presi- 
 dent ; but not conclusive. It is open to explanation, as if the money was delivered to the 
 president in his private character, to be deposited, and never reached the hank. Sterling 
 V. The Marietta & Susqnehannah Trading Company, 11 Serg. & Rawle, 179, 180, 181. 
 The declarations of the ex-president of a bank that payments had been made to him on a 
 note belonging to the bank, are not admissible evidence against the bank. Sterling v. 
 The Marietta & Susquehannah Trading Company, 11 Serg. & Kawle, 179, 181. An insur- 
 ance company took a respondentia bond. A correspondence between the obligor and a 
 director, by whose letters it was sought to impeach the bond, was held inadmissible. 
 Atlantic Ins. Co. v. Conard, 4 Wash. C. C. Rep. 668, 667. The affidavit of the president 
 made to postpone the trial of the cause, stated facts which made against the corporation ; 
 but held Inadmissible. Kemp v. The Baltimore Fire Ins. Co., 2 Gill & John. 108. The 
 declarations of a cashier, that the directors had given time on a note, were held inadmis- 
 sible against the bank. Grafton Bank v. Woodward, 5 H. H. Kep. 301. See also Hosack 
 V. The Coll. of Physicians, &c., 5 Wend. Rep. 547. 
 
404 Admissiims by 'Arties, [ca. Yiit. 
 
 an action ■brought against the sheriff c*n account of the seizni-e;(l) oh the 
 ground that the sheriff,' by his conduct, substitutes himself for the original 
 defendant. (2) In like manner^ admissions by an under-sheriff, tending to 
 charge himself, are admissible in an action against the sheriff for the mis- 
 conduct of his under-sheriff, as for an escape. (3) So in an action by the 
 assignees of a bankrupt, where it was proved that the defendant had state!d 
 that he had been indemnified by the bankrupt', ,it was ruled that statement 
 made by the latter were admissible on behalf of the plaintiffs. (4) 
 
 Person whose JiabilUy is in issue. Admissions made by strangers to a 
 suit are also sometimes received in evidence, where the question in 
 *489 the suit is whether a particular claim *might have been enforced as 
 against those strangers. " Thus it has been held^ that on a plea in 
 abatement for the non-joinder of A. B. as a defendant, his declarations 
 before action brought were evidence in support of the plea;(6)^on thp 
 ground, that whatever would be evidence in an action brought against him 
 to prove him liable, might be received tO; prove his -liability on this issue. (6) 
 So in an action against a sheriff for not arresting a debtor, or for allowing 
 him to escape, statements made by the debtor acknowledging the existence 
 of the debt, are evidence against the defendant ; (7) the .sheriff in this case 
 also being put in the place of the debtor, as to the creditor who sues him 
 for a breach of duty. (8) 
 
 Apparently on the same principle, the admissions of bankrupts, ;or entries 
 in their books, made before the act of bankruptcy, are receivable in evi- 
 dence, to prove the petitioning creditor's debt, (9) or the state of the, baak- 
 rupt's'affairs,(lG) the assignees having only to prove their title as against 
 the bankrupt. (8) 
 
 But admissions by a bankrupt, made after the act of bankruptcy, are not 
 receivable for this purpose, though they are evidence against himself. (11) 
 
 But these cases are exceptions to the general rule, and their principle is 
 not to be extended. 
 
 ■ (1) Dyke v. Aldridge, cited 7 T. R. 665 ; 11 East, 584, n. ; Proctor v. Lainson, 7 C. & P. 
 639. And see Dowden v. Fowle, 4 Campb, 38 j Toung v. Smith, 6 Esp. 121. 
 
 (2) By Richardson, J., in Goss v. Watlington, 3 B. & B. 136. 
 
 (3) Snowball v. Goodricke, 4 B. & Ad. 451, post; 14 N. Y. 270. 
 
 (4) Arkle v. Wakeman, 1 C. & K. 516. 
 
 (5) Clay V. Langslow, M. &. M. 45. 
 
 (6) See also by Parke, B., in Coole v. Braham, 8 Exch. R. 183. 
 
 (7) Sloman v. Heme, 2 Esp. 695 ; Gibbon v. Coggan, 2 Camp. 188 ; Williams v. Bridgied, 
 2i Stark. R. 42 ; Kempland v. Macauley, Peake, 65 ; by Bayley, J., in Rogers v. Jones, 7 
 
 ■p c_ p on 
 
 (8) By Parke, B:, in Coole v. Braham, 18 L. J. (N. S.) Exch. 106. 
 
 (9) Watts V. Thorpe, 1 Camp. 376 ; Hoare v. Coryton, 4 Taunt, 560 ; Taylor v. Kinloch, 
 1 Stark. R. 175 ; 2 Id. 594 ; Robson v. Kemp, 4 Esp. 334 ; Ewer v, Preston, Rep. temp. 
 Hard. 378. See also Evans v. Lake, B. N. P, 382. 
 
 (10) Belcher v. Brake, 2 C. & K. 658. 
 
 (11) Smallcnmbe v. Bruges, 13 Pri. 138 ; Taylor v. Kinloch, utiupra; Sanderson v. La- 
 forest, 1 C. & P. 46 ; Jarrett v. Leonard, 2 M. & S. 365, In Parker v. Barker (1 B. & B. 0), 
 a bankrupt's admissions that he was in partnership with a trader were received as proof 
 of the trading. !But the propriety of this decision was doubted in Bromley v. Ein^, R. & 
 M. 238. It may be observed, that in an action by assignees, the question as to the J)eti- 
 tjoning breditor's debt is, whether it could have been enforced against the bankrupt, 
 which point the admission clearly establishes. The bankrupt's declarations before the 
 act of bankruptcy may be used against the assignees to show collusion, as part of the res 
 gestm. Thotnpsoa v. Bridges, 8 Taunt. 836. And a bankrupt's delaratjons, that n bill 
 would not be paid, has been admitted, to supply proof of notice, wher6 the ladmissioli 
 was made after bankruptcy and before the issuing of the commission. Brett v. Levett, 
 .18 Bast, 318, cited 1 Stark. R. 176. But at the period of that decision (as appears from 
 the case of Dowton v. Cross, 1 Esp. 168, there cited), a bankrupt's declarations were 
 admitted, to prove the petitioning creditor's debt, if made at any time before the com- 
 mission issued.. See Schooling v. Lee, 3 Stark. R. 151 ; Marsh v. Meager, Id. 353; Ber- 
 nasconi v. Farebrother, 3 B. & Ad. 872. :. 
 
mc. x/] Made in diff&rent CapanMy. 405 
 
 Thus, upon an issue directed under the Interpleader Act, between the 
 
 claimant of certain goods and the execution crtiiitor, where the plaintiff 
 
 claimed the goods under an assignment made to him by the debtor as a 
 
 security for previpus adyjances, it was held that an admission made 
 
 *490 by, the *debtor, before the assignment, in the absence of the defend- 
 
 . ant) was not receivable in evidence for the plaintiff. (1) 
 ,- In one case the admission of a petitioning creditor, as to the amount of 
 his debt, was held to be receivable in evidence against the assignees of a 
 bankrupt. (2) • It does not appear from the report of this case, whether the 
 admission was made befpre or after the commission ; and Patteson, Jj, in a 
 later case (3) observed upon it, that it was Iposely. stated, and that he could 
 not but think that the -declarations must have. been, made before the com^ 
 mission. In cases of this description, the issue appears to be, what were 
 the mutual rights of two persons (one or both being strangers to the suit), 
 at a particular period; which inquiry seems to let in such evidence as would 
 have been receivable Jaetween those persons. In the last example, however, 
 it is not clear that the decision did -not turn on the point that the assignees 
 were liable to be affected by admissions of the petitioning creditor, because 
 he-Tvas a privy iuiestate. In the case of Harwood v. Keys,(4) it was ruled, 
 thatithe.declarationsrof a deceased petitioning creditor, made after. the com- 
 mission, were not evidence against the assignees, in an issue directed to try 
 whether the commission was concerted between the petitioning creditor, the 
 bankrupt, and the attorney ; the petitioning creditor, it was said, could not 
 be taken to be the real party interested in the cause ; and the result of 
 the tria;l, if the verdict were for the plaintiff, would not necessarily be the 
 superseding of the commission, the issue being merely a proceeding to 
 satisfy the chancellor's conscience. 
 
 AdrAission by party in different capacity . An admission may have been 
 made by a party to a record when in a different capacity from that in which 
 he is concerned as regards the suit ; and it seems to have been considered, 
 in' such a case, that his former admission ought not to be evidence against 
 him; for the change which has taken place in his interest, his means of 
 knowledge, and his powers of acting, show that his former admissioix is not 
 a safe, criterion of the truth of the claim or defense which he is at present 
 setting up. And the injustice of allowing his former admission to be used 
 against him may appear to be the greater where, by the change of his situ- 
 ation, he has become the representative of the interest of others, with 
 whom, in his former situation, he had no privity. 
 
 Thus it was ruled by Lord Tenterden, C. J., in the case of Fenwick v. 
 Thornton,(5) that the declarations of a person, made before he became 
 assignee of a bankrupt, are not evidence against him, when suing 
 *491 as such *assignee. In the later case of Smith v. Morgan,(6) how- 
 ever, Tindal^C. J., admitted similar evidence, and observed that such 
 a distinction was new to him, the general rule being that the declarations of a 
 party to the i-ecord are evidence. The case of Fenwick v. Thornton does 
 not appear, however, to have been brought before his Lordship's notice; 
 and it is apprehended that the ruling of Lord Tenterden, C. J., in that case, 
 is the more correct, for the reasons above stated. (7) 
 
 (1) Coole V. Braham, 3 Exch. R. 183. 
 . (2) Young V. Smith, 6 Esp. 121.- 
 
 (3) Harwood v. Keys, 1 Mo. & K. 205. 
 
 (4) Ut supra. 
 
 (5) M. & M. 51. 
 
 (6) 3 Mo. & R. 257, 
 
 (7) As to declarations of a guardian ot^ochein ami, see supra, p. 485. This rule may 
 .be illustrated by the doctrine of estoppels. A woman is not estopped, after coverture, by 
 an admission upon record by her husband and herself during coverture. See Hodgson v. 
 Merest, 9 Ptf .. '66,3 ; Elston v. Wood, 2 Myl. ii K. 678. An. heir claiming as heir of, his 
 
406 Admissions by Parties. [ch. viii. 
 
 Admission iy one party evidence against another jointly interested. It 
 appears to be a general principle, that in a civil suit by or against several 
 persons, who are proved to have a joint interest in the decision, a declara- 
 tion made by one of those persons, concerning a material fact within his 
 knowledge, is evidence against him, and against all ' who are parties 
 with him to the suit.(l) In an action of covenant against two 
 *492 *defendant8, (2) the affidavit of one of them was held to be evidence 
 against both. 
 
 But unless there be a joint interest in the decision, the admission of one 
 defendant will not be receivable against a co-defendant. Thus, in general, 
 the answer of one defendant in chancery is not evidence against his co- 
 defendant ; if it were otherwise, a plaintiff might make one of his friends a 
 defendant. (3) 
 
 But this exception does not apply where the co-defendants have a joint 
 interest in the transaction, as in the case of partners, or where one defend- 
 ant claims through the other, whose answer is offered in evidence. (4) 
 
 Thus, where the obligee of a bond filed a bill against two joint and sev- 
 eral obligors, alleging that the bond had been delivered up to one of them 
 by mistake, and praying that he might recover the amount due on it, an 
 iidmission by the party to whom the bond was given. up, that it had been 
 
 father is not estopped by an estoppel upon him as heir to his mother. A party suing as 
 executor, in an action of debt upon a bond, is not estopped by having been barred by an 
 action on the same bond, *hen lie sued as administrator. Kobinson's Case, 5 Co. 32 b. ; 
 Com. Dig. tit. Estoppel, C. ; Wrotteslev v. Bendert, 3 P. Wms. 337 ; Barron v. GreUard, 
 3 V. & B. 166. 
 
 (1) By Le Blanc, J., 11 East, ,589. See also Whitcomb v. Whiting, 3 Doug. 653. 
 
 The rule in New York is different : the admission of one of two joint debtors, e. g. joint 
 makers of a promissory note, who are not; partners, does not bind the other. Lewis v. 
 Woodworth, 3 Comst. 513. When the joint debtol-s are also partners, they are by such 
 association constituted agents, one for the other, iii relation to the partnership business. 
 1 Greenl. Ev. §g 113, 174. But when they are only jointly liable, it is difficult to see 
 upon what principle the act or admission of one of them should be held binding upon the 
 other. Clearly neither of them has any authority frpm the other to change the character 
 of the debt, or create any new obligation to pay it, riiuch less to make lor him a new con- 
 tract. Accordingly, it is settled in this state that an admission by one of several partners, 
 made after dissolution of the firm, will not revive a debt against the firm that has been 
 barred by the Statute of Limitations. Van Keuren v. Parmelee, 3 Comst. 533. See Barrick 
 V. Austin, 31 Barb. 341. 
 
 The rule stated in the .text has been followed to a limited extent in Massachusetts 
 (Cady V. Shepherd, 11 Pick. 400 ; Bridge v. Gray, 14 Id. 55 ; Sigourney v. Drury, Id. 387, 
 391 ;"Vinal v. Burrill, IG Id. 401) ; in Connecticut (Bond v. Lathrop, 4 Conn.R. 336 ; Coitv. 
 Tracy, 8 Id. 368 ; Austin v. Bostwick, 9 Id. 496 ; Clark v. Sigourney, 17 Id. 511); in Maine 
 (Parker v. Merrill, 6 Greenl. 41 ; Pike v. Warren, 15 Maine, 390 ; Dinsmore v. Dinsmore, 
 21 Id. 433 ; Shepley v. Waterhouse, 33 Id. 497) ; and in Vermont (Loomis and Jackson v. 
 Loomis, 36 Vt. 198). In North Carolina and Georgia, the promise of a partner after dis- 
 solution, if made before the debt was barred by statute, will prevent the operation of the 
 statute. Mclntire v. Oliver, 2 Hawks, 309 ; Brewster v. Hardeman, Dudley, 188. But 
 after the debt has been barred, such new promise will not revive the debt as against the 
 other partners. So held in many of the states. Brewster v. Hardeman, mpra ; Steele v. 
 Jennings, 1 McMullen, 397 ; Lawther v. Chappel, 8 Alab. R. 353 ; Belote's Ex'rs v. Wynne, 
 7 Yerger, 534 ; Muse v. Donelson,.3 Humph, 166 ; Levy v. Cadet, 17 S. & E. 136 ; Seeright 
 V. Craighead, 1 Pen. & Watts, 135 ; Youdes v. Lefavour, 3 Blackf. 871 ; Bell v. Morrison, 
 1 Peters, 351. See Vol. 3, p. 451, 453. 
 
 Where the rule stated in the text prevails, it is necessary that it should appear that the 
 defendants had an existing joint interest when the admission was made, belore it can be 
 received in evidence against the others. Borwell & al. v. Blackman, 12 Geo. 591 ; Blakeney 
 V. Ferguson, 17 Ark. 641. See Tillinghast v. Nourse, 14 Geo. 641. 
 
 (2) Vicary's Case, Gilb. Ev. 51. 
 
 (3) Wvch V. Meal, 3 P. Wms. 311. And see Jones v. Turberville, 3 Ves. 11 ; Morse v. 
 Bflval, 12 Vcs. 355. 
 
 The admission of one of several owners or tenants in common of a vessel does not bind 
 the others (McLellan v. Cox, 36 Maine, 95) ; unless they navigate the vessel together. 
 Blackstock v. Leidv, 16 Penn. State K. 885, 840. 
 
 (4) See Pritchard v. Draper, 1 Buss. & Myl. 191 ; Petherick v. Turner, cit. 1 Taunt. 104. 
 
BEc. X.J By Partners. 407 
 
 delivered to her by mistake, was held to be evidence against the co-obligor, 
 though the joint answer of the defendants had traversed the allegation as 
 to mistake, and simply admitting the delivery of the bond, had stated that 
 the party to whom it was given up had destroyed it.(l) 
 
 . But even where parties have been partners, the answer in chancery of one 
 
 who has previously retired from the firm, and ceased to have any interest 
 
 therein, is not admissible in evidence against the continuing partners, 
 
 although it relates to transactions with the firm which occurred at a time 
 
 when the retired partner was a member! (2) 
 
 *493 *In torts, admission by one defendant not evidence against another. 
 In actions of tort, the admission of one co-defendant will not affect 
 another co-defendant. (3) The rule is clear against the reception of such 
 evidence in the case of persons jointly indicted, except in cases of con- 
 piracy. (4) 
 
 (i) Crosse v. Bedingfield, 12 Sim. 35. 
 
 (8) Parker v. Morrell, 2 C. & K. 589. This was an issue directed by the Lord Chancel- 
 lor. Upon the hearing of the origjnal cause, Knight Bruce, V. C, had allowed the 
 answer to be given in evidence de bene esse. Upon an appeal before Ijord Cottenham, C, 
 his Lordship said, it was contrary to the rule and practice of the court to read the answer 
 of one defendant against the other, and that it appeared that the answer had been so used 
 in the court below, and not as a statement made by a party whose admission would ba 
 evidence against the defendants. His Lordship added, that upon the trial of the issue, 
 which was to try the validity of a warrant of attorney given by the plaintiff to the 
 defendants and the party who had been a co-defendant in the chancery suit, if the answer 
 shpuld be tendered in evidence, its admissibility would be decided upon :by the presiding 
 judge. The issue was tried before Cresswell, J., who rejected the evidenoe. Sea also 
 Petherick v. Turner, cit. 1 Taunt. 104. 
 
 (3) Daniels V. Potter, M. & M. 502, where the lax expressions of Lord EUenborough, 
 C. J., in K. V. Hardwicke, 14 East, 585, are qualified by Tindal, C. J. See also Morse v. 
 Boyal, 12 Ves. 362. 
 
 (4) By Lord Kenyon, C. J., in Grant v. Jackson, Peake, 204. Vide infra, Oonfetgiona ; 
 tu^ra. Declarations, part of tlve res gestm. 
 
 Note 135. — The rule as laid down in the text by Lord Ellenborough, seems to have 
 been fully sustained by the later cases in England, notwithstanding the reasons urged by 
 the learned author in favor of its limitation. Thus, in false imprisonment, it was proved 
 that tli,e three defendants jointly had iniprisoned the plaintiff;, and he was allowed to 
 prove what one said on the subject some weeks after, in the absence of the others ; Garrow, 
 B., said, that after the defendants were connected in the imprisonment, he must receive 
 finything that either of them said as to the trespass, as evidence against all. If this were 
 not law, one going to commit a trespass might proclaim his malice in the market place, 
 fjid yet shut out the evidence of it from the jury, by associating other persons a shade less 
 guilty than himself. 'Wright v. Court, 2 Carr. & Payne, 232. And where the plaintiff was 
 arrested by one of the defendants, and in continuation of the imprisonment delivered to 
 another, who held the plaintiff in custody, the acts and declarations of that other were 
 held to be evidence against the former ; and that, too, thpughby proving a distinct act of 
 imprisonment against the former, disconnected with the latter, the plaintiff precluded 
 himself from recovering against the latter. Powell v. Hodgetta, 2 Carr. & Payne, 432. In 
 the last, Garrow, B., before whom the cause was tried, said, " I take it, that in all cases 
 where one person puts a party into the custody of another, what is said and done by that 
 other is evidence against the person placing the party in custody, though said or done in 
 his absence." This is a remark which would seem to apply by parity of reason, where 
 one party commits a trespass in the wrongful taking of property ,and places it in the hands 
 of another. And where one indemnifies a sheriff against an act which turns out to be a 
 wrong, Marcy, J., said the admissions of the former were receivable to charge the sheriff. 
 Benjamin v. Smith, 4 Wend. Rep. 335. See note 145. 
 
 In ejectment against two, the admission by one, of a fact going to disprove an adverse 
 possession set up in the other, was refused. Bank of Kentucky v. Williams, 2 J. J. Marshii 
 256, 260. Four persons, P., W., & F.^ were sued for putting wine into a cellar in the publie 
 street, the cellar flap being so negligently placed that it fell and injured the plaintiff. F. 
 suffered judgment by default; P., who owned the premises, died before the trial ; and a* 
 to the other three, at the time of letting down a hogshead of wine by them into the cellar 
 the flap fell and did the injury. An offer was made to prove a gtatiement by F., and it 
 was claimed that it should be received as evidence against all three of the defendants. It 
 was admitted that this would be evidence against F. ; but the judge denied that it was ao 
 against the otheiB, there being. here no common intent to do wrong, proved to exist anions 
 
40S Admissions by Parties, [cb. Vni. 
 
 the defendants ; it was a mere case of neglig^nCe. Daniels v. Potter, '4 Carr. &?ftiyne, 375 ; 
 B. C.j 1 Mood. & Mtilk. 501. In an action pf assault and battery against Motcalfei. and 
 several persons who were present when Metcalfe committed rthe assault, the court received 
 evidence of Metcalfe's confession, that they all pame with intention to take a boy from the 
 plaintiff with force ; but nothing appeared that this was in fact_so, nor did the others take 
 i,ny part in the transaction. All being convicted on this evidence, the judgment was 
 reversed. Metcalfe et al. v. Conner, Litt. Sei. Gas, 4S7. In trespass before a justice; oiicf 
 of two defendants, after the cause had been dis(^ntinued, consented to appear for itself 
 Jind.the other,; and th^ declarations of the latter were -give;i in^evidjence agajnst bpth ;. 
 held inadmissible on error, for the latter was not a party. Stoddard y. Holmes, 1 dowen's 
 Eep. 245. Qiiere, whether if 'he had been a pB,rty, his declaratlbiis would have been 
 admissible against the other unless a part of the joint res geitm, or until the tres- 
 *494 pass had been othervidse, shown to have been *the' common purpose of both j- la 
 ; either; of the two latter cases, it seems the declarations would have been evidence, 
 whether the person making them had been a. party on the record or not. : ., / , 
 
 Note 1$6. — The American cases will be found to furnish a very valuable illustration o^ 
 the text as to theScircyimstanoes under which the acts and 'declarations of one who is^air- 
 ticeps crvminis may or may not be received to affect his copartners in guilt. 
 - First, as to the proof of their connection, which is always an -essential- preliminary 
 
 addressed to the court. < ' - 
 
 ' To let in the declarations of a co-conspirator against his fellow, it is «nough that' the 
 Conspiracy be proved by one competent witness. The court will not decide on his credi- 
 bility. Commonwealth v. Crowninshield, 10 Pick. 497. Where it appeared that the 
 prisoner Said to the witness in presence of K., that one F. had offered him a sum of money 
 if he would kill W. ; and the prisoner told F. he would give him an answer at a sulise- 
 quelit tim&; that the prisoner offered the witness a third part of the money if he would 
 coihmit the murder ; that B. proposed a mode of doing it ; that the witness declihed hav- 
 ing anything to do with it, and then the prisoner said he was in jest ; and in a few days 
 after, the murder was actually perpetrated by F. : held sufficient proof that the prisoner 
 and R. entered into the conspiracy, to let in the declarations of R. as evidence against 
 the prisoner. Commonwealth v. Crowninshield, 10 Pick. 497. 
 
 Trespass by the plaintiff" against the sheriff' for levying oh a negro under a Ji. fa. 
 against Trigg, the plaintiff"s brbther-in-law, after he, being insolvent, had conve3rfed the 
 jiegrP,' with eleven others, in triist, to satisfy a debt due to the plaintiff', and they had been 
 sold to the plaintiff' at auction, where there were very few bidders. Thie possession of the 
 negroes was not changed till some time after ; and there were some other circumstances 
 showing fraud in the trust sale. It was, therefore, off'ered by the sheriff to prove Trigg's 
 private request to a bidder at ihe trust sale to forbear, for' the plaiiitiff was bidding for 
 his (Trigg's) benefit. Held admissible, the circumstances showing, to the satisfaction of 
 the court, a community of design between the plaintiff and Trigg to defraud Trigg's 
 creditors ; that this being shown by circumstances of which the court were to judge, the 
 declaration was admissible though the plaintiff' was not present. Per Carr and Green, 
 J's, in Clayton v. Anthony, 6 Band. 285. So where a bond was given by the father to the 
 ■s6n with a confession of judgment ; on an issue to try whether it was not intended as a 
 fraud against creditors, they having proved a combination between the father and the 
 son to defraud creditors ; held that they might then give evidence of declarations of 
 the father, made in the absence of the son, that the bond was given for the sole purpose 
 of keeping off* creditors, and that it Was Without consideration. Reitenback v. Reiten- 
 'back, 1 Rawle, 362. So, where a vendor is left in possessioh of property, and exercises 
 acts of ownership over it after sale, this proves a combination to defraud creditors, and 
 his declarations are evideiice against the vendee. Wilbur v. Strickland, 1 Rawle, 458. 
 See Willies v. Parley (3 Carr. & Paiyne, 896), S. P., on the ground that, being in possession, 
 the declaration is a part of the res geatm. See also Babb v, Clemson, 10 Serg. & Rawle, 
 419, 426, 427, with S. C.,12 Id. 828, 330. 
 
 On trial of an indiotinient against the defendant for prosecuting the slave trade, the 
 proof was that his captain of a vessel owned by him took on board various fitments for 
 the trade at Baltimore (with the defendant's assent), and where he resided ; and that the 
 defendant afterwards declared the Vessel had made him a good voyage in that trade. 
 Evidence was then received that after the vessel had left Baltimore, having cleared out on 
 a voyage and proceeded to St. Thomas, the captain proposed to one Coit to employ him 
 as mate on a voyage to the coast of Africa for slaves, and thence back to Cuba. Held 
 admissible against the defendant, as a declaration coming from his agent in the enter.i 
 tirise, and made in the course of its ptosecvition, as part of the res geatm, and as coming 
 within the general scope of his authority. He htid an implied authority to hire a crew, 
 'and do Other acts necessary for the voyage: United States v. Gooding, 13 Wheat. 460, 
 468 to 470. 
 
 "The combination being established In the above or some other way, the cases are uni- 
 form that the confessions or declarationB are received under the qualifications mentioned 
 in the text. (Cuyler v. McCartney, 83 Barb. 165. The combination or conspiracy should 
 be first shown ; Carpenter v. Slielden, 5 Sand. 77 ; Moers v. Martens, 17 How. Pr. 280.) 
 
BEC. xi] '■ Parties' ih Kegotiaile thsiticments, 409 
 
 *49S *£y pdHrt'er, being a party to the suit. In an action against persotis 
 
 " aS partners, -nrheri the partnei-sliip is first proved, afi admission by 
 
 *496 'one of the defendants .is admissible against iill.'Cl) *Thus, in an 
 
 actionby Several partners against the defendajlit for the non-perfljrm- 
 
 ance of an agreement, a declaration by one of the partners suing, that the 
 
 foods to whicb the agreement, related, were his separate property, is evi- 
 ence against ^11 thq plaintiffs sUing as upon a joint contract. (2)' And'a 
 
 '~ ^'-r— — '"'•-[•' ■ ' ' — ' '^ ' — ^- " ^-^^ --^^ — ' 
 
 Thus on a libel against goods as being forfeited 'by illegal exportati<|)n;l in a. trade with 
 the Indians,, the dedarations ajid actsof the expocteis' agent, or of any one who acted in- 
 conjunction with the exporters in the course of their' business,' Vere held admissible as 
 evidence against the goods. The court declare the principles laid down in the text. 
 American FiirCompany v. The United Slates; 2 Pet. S. C. Rep. 358, 365. ■ So the declara- 
 tions of the second in a duel are evidence s gainst the principal; State v. Dupont, 2 
 M'Cord, 334 The defendants, fifty-nine in number, being indicted for a conspiracy to pre-' 
 Tent the use of the English languagB in the Oerman Lutheran Church; and being proved 
 to have been, e.tgaged in that enterprise, holding meetings, &c., to concert measures for 
 prosecuting their design, with force ; held, that the inflammatory and threatening speeches 
 of a few, were proper as evidence against the whole; , The Commonwealth v. Eberleand 
 others, 3 Serg. & Rawle, 9, 16, 19, ^.' In an action againsti several defendants for.a fraud- 
 tilent conspiracy and obtaihing public securities from the plaintiff' the plaintiff having 
 proved the conapifaey tor that purpose,. Was allowed to give evidence of conversations 
 among several Of the . toiispirators, to affect another who was not present at the time.' 
 Patton V. Freeman and others; Coxe's Hep, 113. On one of several defendants having 
 suffered default agaibst him in 'an action for a conspiracy and fraud upon the pilaintiff,and 
 the others hjavicg pleaded to issue, on executing a tSenin tamgttain, the confessions of th^ 
 formtr were held admissible to aggravate the dalnages. Bostwick v. Lewis, 1 Day; 33. 
 The court said they are evidence against him, he being on trial as to the quantum of 
 damages ; and that they might affect the others, was no reason for their rejectiott. - . 
 
 It may be proper to observe hetfe,.that the admiasioin of.the princii)al(fl.;.jr;ihisijilea of 
 guilty to an indictjnent) is pi-imd jfaeie evidence that hei committed the crime, on 'the 
 trial of the accessory. In this ifespelot, whatever is evidence agadnst the principal, is ad 
 against the accessory. : Hex v. Blick, 4 Carr. & 'Payne; 377. ; 
 
 On the other hand, on the trial of an indictment against two blacks. Poll and Lavinia; 
 for poisoning their master, Samuel Skinner, with white arsenic, a conversation between 
 the prisoners was proved, in which; they spoke of putting some deadly drug into the 
 water he should call fSr, in consequence of their having poisoned his soup, Lavinia 
 adding, " That is the way ?te said do it." She stated before the tnagistrate that he meant 
 John Skinner, who ; gave them something which lodked like lime, but it was heavier. 
 The court then received John Skinner's deciaration in .evidence, that he had just before 
 hOdght arsenic. The prisoners, >eing. convicted, appealed, and the. Court of' Appeal 
 granted a new trial. Taylor.C. J., said J. Skiimer's declarations would be admissible 
 only- against himself ; and Henderson, J., said ; " The rule has never been carried farther 
 ths^ this: that when a common design is proven, the act of one infurtherance of that 
 design is evidence against his associates. It is in some measure the act of all. But the 
 dedaraiiona of one of the parties can be received only against himself."' Hall, J., con- 
 curred. State v. Poll and Lavinia, 1' Hawks, 442. So, on the trial of Ool. Burr for a 
 misdemeanor in setting, on &Qt a .riiilitary expedition against Mexico,- the attorney -general, 
 after giving, proof tending to show that Blannerhasset was a co-conspirator or an accom- 
 plice, themofifered to prove tlie declarations of the latter tending to implicate Col. Burr. 
 The testimony was overruled. Marshall, C. J., delivered the opinion erf the court, that 
 such. a declaration not forming apart of the transaction, and not made in the presence of 
 the accused, could not be received as e-Vidence. It is inferrible from the report,' that the 
 declaration related to some past transaction, and so came -within the mle conceded in 
 Hwdy's Case, cited ia the text. U. States v. Burr, 2 Burr's Tr. by Robertson, 538, 539. 
 And see Apthorpe v, Comalock, 3 Paige, 488, per Walworth, Ch., S. P. See also ante, 
 note 135. . 
 
 ■VVTiere two persons jointly concerned were on trial, held that the separate examinatiod 
 of one before the magistrate was not evidence against the other. Hopkins and Gannon's 
 Case, before RadcUff, Mayor, X C. H. Rec. 173 ; People v. Bleecker, 3 Wheel. Cr. Cas. 
 256. Of course it is not evidence for the other. Brandon's Case, 4 C. H. Rec. 140. See 
 Commonwealth v, Bojer, 3 Wheel.. Cr. Cas. 150. Where a witness was excused from 
 answering a q.ue8tiQ&, because the answer might subject him to a prosecution, it was held 
 that his declarations as to the same facts were not for thait reason admissible, especially as 
 they affected the character of a third person. Nettles v. Harrison, 2 M'Cord, 280. 
 
 (l).NicholIs V. Dowding, 1 Stark. R. 81 ; gibbons v. Wilcox, 2 Stark. R; 43 ; Grant v. 
 Jackson, Peake, 304. . 
 (3).Luca8.v,Del&Cour, 1 M. &a249. .. 
 
 Vol. L 52 
 
4:10 Admissions by Parties. , [ch, tiji. 
 
 representation of any fact, made by one partner with respect to a partnerehip 
 transaction, is evidence against the other partners. (1) Where it appeared 
 tjiat the agreement, which was the subject of the suit, was made py;,the 
 plaintiff, on behalf of himself and the other proprietors of a theatre, 
 declarations of the other proprietors were admitted as evidencp for the 
 defendant. (2) An admission by one defendant, of his partnership with, 
 the co-defendants, who, were sued with Kim as acceptors of a bill of 
 exchange, and who had been outlawed, has been received as proof against 
 him of a joints 'promise by all. (3) 
 
 (1) Bapp V. Latham, 3 B. & A. 795. 
 
 (2) Kemble v. Farren, 3 C. & P. 623. 
 
 (3) gangster v. Mazarreddo, 1 Stark; B. 161. See, also, Ellis v. Watson, 2 Stark. R. 453. 
 Note 137. — The admissions of one or two joint grantors in a deed of land, the grantors 
 
 being both of them lessors of the plaintiff in ejectment, were received as evidence against 
 both as to the existence, contents and effect of the dged ; a foundation having been first 
 duly laid for oral proof of its contents. Jackson ex dem. Hoogiand v. Vail, 7 Wend. 125. 
 The rule that the acknowledgment of one of sevetol parties on the record is evidence 
 against the others, was applied to a suit by a creditor of the ancestor against his heirs and 
 devisees. The acknowledgment and promise of two of these, who were also executors of 
 the ancestor, were received against the others, to take the debt out of the Statute of 
 Limitations. Johnson v. Beardslee, 15 John. Rep. 8. Quere. See infra, in this note. 
 In debt on a single bill, executed by the two defendants, B. & E., to the plaintiff, the 
 admissions of B., respecting the money being due, were held receivable in evidence for 
 the plaintiff against E. as -well as B. Lowe v. Boteler & Eastburn, 4 Har. & M'Hen. 346. 
 In ejectment on several demises, a deed given by one of the lessors to a third person, 
 reciting the will of their common ancestor, by which a title outstanding from all the 
 lessors was shown, was received in evidence against the whole of them. The reason 
 given is, that the one lessor could not be a witness, and they all had a community of inter- 
 est. Brandt ex dem. Van Cortland v. Klein, 17 John. Eep. 335 ; Jackson ex dem. Neilson 
 V. M'Veyi 18 John. Rep. 830. But afterwards, in partition, by several persons claiming as 
 heirs and tenants in common, against defendants, who claimed the premises in question 
 under a devise from the demandant's ancestor, it was held tbat the admission of one of 
 the demandants was inadmissible as against the others, to show the loss of the will and 
 let in oral proof of its contents. This was on the express general ground that one tenant 
 In common cannot admit away the rights of another ; and the instance of lessors (tenants 
 in common) in an ejectment is put by way of illustration. The cases in 17 John. 335, and 
 18 Id. 330, and the latter decision, certainly cannot stand together. Dan and others v. 
 Brown and others, 4 Cowen's Rep. 483. " To warrant the receiving the admissions of one 
 in prejudice of another, they should have a joint interest in possession, not a mere com- 
 munity of interest. Gray et al. v; Palmers et al., 1 Esp. N. P. C. 135 ; Hackley v. Patrick, 
 3 John. Rep. 536 ; Smith v. Ludlow, 6 Id. 267, 269 ; Whitney v. Ferris, 10 Id. 66." Said 
 by Sudain, Senator, delivering the opinion of the Court of Errors, in Osgood v. The Man- 
 hattan Co., 3 Cowen, 623. In a proceeding to prove a will before a court of probate, if 
 the admission of one of several who claim under it be admissible in evidence, it must be 
 one made after the interest accrued, not one before the date of the will. But whether it 
 be admissible : Quere. Burton v. Scott, 3 Rand. 399, 407, 408, 409. See cases in 1 Mood. & 
 Malk. 51, and 4 Conn. B. 544, stated ante, note 133. In an action against R. & H., two 
 makers of a promissory note, H. suiFered judgment, by default. On a trial with R., 
 *497 the written admission of *H. was received in evidence against B., though H. was insol- 
 vent, and though H. & B. had long since dissolved partnership. " It may be doubted 
 whether the joint interest is dissolved until the note is paid." In this case a subsequent 
 counter declaration of H., offered by B., was refused as evidence, though the plaintiff had 
 used the second declaration as evidence in another trial. Martin v. Root, 17 Mass. Eep. 
 222, 227. On appeal from the probate of a will, by the executors and principal legatees, 
 the declarations of one of them, as to the circumstances attending the making of the 
 will, was received in evidence against the validity of the will, and, of oourse, against 
 the other legatees and executors. Atkins v. Sanger, 1 Pick. 192. Vid. in Miller v. Miller, 
 8 Serg. & Bawle. 267, a similar question raised but not decided. But see infra, Phelps v. 
 Hartwell. Quere ; whether, on an issue of devismit Vel non, the admission of one devisee; 
 who is a party, would be evidence against the others. Miller v. Miller, 3 Serg. & Bawle, 
 267. In an action on a bond against the principal and his surety, conditioned that the 
 former should faithfully execute an agency, his admission that his agency continued 
 beyond a certain time, the question being whether it did not then terminate, was offered 
 in evidence by the plaintiff, at Ni>i Prius, and rejected. On a motion for a new trial, the 
 court doubted whether the admission of a principhl, not being a part of the res geata, 
 should be received to affect his surety. But the point went off on another ground. 
 Boston Hat Manufactory v. Mossinger, 3 Pick. 224, 240. Such an admistiou was denied 
 
SBC. X.] 3y Partner. 411 
 
 in State Bank v. Johnson (1 Rep. Const. Gourt, 404), but received in Simonton's AssigBeea 
 V. Boucher (3 Wash. C. C. Rep. 473). In the first, the principal was not a party ; in the 
 latter he was. But no stress seems to ha'^e been laid upon the distinction. 'An acknow- 
 ledgment of a debt barred by the Statute of Limitations, by one of several joint debtors, 
 defendants, takes the case out of the statute as to all. White v. Hale et al., 3 Pick. 291. 
 In assumpsit by two for transporting the defendant's whisky, a letter &om one, admit- 
 ting that they had converted a part of the whisky to their own use, was received as 
 evidence against both. Holmes et al. v. Ketlinger et al., 4 Yeates, 533. In an action 
 against the managers of a lottery, to recover the amount of a prize, the confession of one 
 of the defendants that the plaintiff was the owner of the tifcket, is evidence against all 
 defendants. Snyder v. Wolfley and pthers, 8 Serg. & Rawle, 328 ; see ante, p. 491. 
 
 A joint assumpsit against two defendants not being maintainable without proof, express 
 or implied, that both have assented to the contract in its joint form, although, after 
 establishing that one is liable, the other admits a joint liability, this vfill not support the 
 action. Mitchell v. Roulstone, 2 Hall's Rep. N. T. S. 351. So where, in assum|)sit against 
 two jointly, it was in evidence that each admitted, in their respective answer in chancery 
 that they had respectively (being joint trustees of the plaintiff) received trust funds to 
 the amount of the plaintiff's claim ; held, that the action was not supported, for tliis cre- 
 ated no more than a several liability. Parsons v. De Forrest, 3 Hall's Rep. N. Y. S. C. 
 181. Where two persons, A. & B., covenanted as between themselves to make certain 
 lepairs at their joint expense, yet A.'s admission that he and B. were jointly liable for 
 work done in such repairs on the order of A. alone, is inadmissible in an action at the 
 suit of the workman to charge both. M'Creedy v. Freedly, 3 Rawle, 351 . The admission 
 of several defendants that certain books, which all the defendants had notice to produce 
 were in the possesion of a man who was the alleged agent of them aU, was held not 
 admissible as to another defendant, so as to warrant oral proof of their contents, no joint 
 liability in all being yet proved. Birbeck v. Tucker, 3 Hall's Rep. N. Y. S. c' 121. In 
 assumpsit for money paid by a plaintiff as a surety, against several of his co-makers, on a 
 promissory note, the admissions .of one of the co-makers, a defendant, that the plaintiff 
 was surety on the note for all the others, are inadmissible to affect any one beside the 
 person making the admission. Warner v. Price, 3 Wend. 397. Semb. The admission of 
 one administrator of *is intestate's debt is admissible against another, though both are 
 parties defendants on, the same record. Forsyth V. Oanson, 5 Wend. 558, 561. And the 
 contrary concession in James v. Hackley (16 John. Rep. 377), was questioned. And in 
 Hammon v. Huntley (4 Cowen's Rep. 494), an admission of one of two executors, defend, 
 ants, was not allowed against the other, for it may charge the other with a devastavit, 
 though it was said sufficient to take the claim out of the Statute of Limitations. But 
 even of this last, gtiere ; and see the cases ante, note 133, where it is made a serious ques- 
 tion, whether the admission of a personal representative shall be received against 
 himself, even to take the case out of the statute. On appeal against devisees from an 
 order of probate, confirming and allowing a will, on the ground that the devisor was 
 insane, the opinion of one of the devisees was not allowed to be given in evidence against 
 the whole, as he was not solely interested, but another devisee, joined with him as appel- 
 lee, had an interest. Phelps v. Hartwell and another, 1 Mass. Rep. 71. In an action by 
 the holder against C, Q. & R., partners, on a note signed by R. with the partnership 
 name, payable to himself, and indorsed by him to the plaintiff, the defense was that this 
 was to pay R.'s private debt to the plaintiff. The plaintiff offered li.'s admissions in evi- 
 dence of facts showing the note to be valid. Held inadmissible on this question viz. : 
 whether R. was, quoad hoc, a partner. Tuttle v. Cooper et al., 5 Pick. 414. 
 
 The declaration of one of several defendants, that he and the others were partners, is 
 receivable for the plaintiff. Whitney v. Sterling, 14 John. Rep. 21.5. And so are the like 
 declarations from each of the defendants. Taylor v. Henderson, 17 Serg. & Rawle. 453 
 457. But they are evidence only against the person who makes them, not against the 
 others. Corps v. Robinson, 3 Wash. C. C. Rep. 338. And hence it has been said, if 
 the person making the declaration were not defendant on the record, the declaration 
 could not be received at all. Martin v. Eaffroth, 16 Serg. & Rawle, 150. And in all these 
 cases the testimony should be received with the express qualification that it shall affect 
 him alone who makes the admission. Whitney v. Ferris, 10 John. Rep. 66. And where 
 one of the defendants was defaulted, and on trial of the issue against the other a prima 
 facie case of partnership was made out against both, yet the admissions of the defaulted 
 defendant were refused to implicate the other. Robbins v. Willard, 6 Pick. 464. 
 
 The confession of one partner, after the partnership is. proved, is not received against 
 another on the ground of his being a joint party, but on the ground of unity of interest • 
 and his admissions may be received, though he be not served with process, or a iwUi 
 prosequi be entered against him. Boyce v. Watson, 3 J. J. Marsh. 498, 500. And it lies 
 with the judge, not the jury, to decide whether a partnership is shown, so as to let in the 
 admissions of one against the other. Harris v. Wilson, 7 Wend. 57. (Or whether a 
 common purpose of several parties is shown, so as to let in the declarations of one ao-ainat 
 theothere. Jones v. Hurlburt, 39 Barb. 403.) "S^insi 
 
4]!2 Admi^st&hS by Parties, [cia." vtn,- 
 
 *4'98 *lil Gray v. Palmer, (l) it was Held, fhat wlnere the plaintitf' declared 
 against several defendants opi a joint and several not^, and the 
 defendants ; severed in, their pleas, and one of them by his plea admitted: 
 the handwriting of the note, the handwriting; must, nevertheless, be proved 
 against the other defendants. But this case was apparently decided on thei 
 ground that an admission in, one plea, cann,ot be uses^ to disprove another' 
 plea; , 
 
 ; The rule with regard to the admissions of, partners is .not. confined to, 
 cases whfere they are parties to the same suit. The admission of a partner^ 
 though not a party lio a' suit,- is evidence against ancfther partner, who is 
 sued, as to joint contracts during the partnership; and thjis has been held' 
 to be so, even where the ;adpiissipn is rqiade after the determination of the, 
 partnership. (2) ■ 
 
 (1) lBsp.135. r . 1 ■ 
 
 (3) Wood, v. Braddick, 1 Taunt. 104.- See Thwaitesv. Richardson, Peake; 16; wtere 
 Lord Kenyon, C; J.; thought that th& admissions of a party not a partner to the suit was 
 not receivable in evidence. See also Hodenpyl v. Vingej-hoed.Chitty on Bills, 627, n.,i 
 admission of an acceptance by a partner; Henderson v. Wild, 3 Camp. 563, frauduleid 
 receipts of a partnei^. It seems this rule does not apply to an answer in chancery by^a 
 retired partner, even tlloug^h it relates' to partnership transactions. Parker v. Morrel, 2 
 e. i& K. 599 ; Supra, pp. 481, 493; ■ ,...'. 
 
 ■ Note 138.— Martin V. Boot, 17 Mass. Eep.' 333, 337; Cady v. Shepherd, 11 Kck. 400, 
 407, 408; . ' 1 
 
 But the rule in many of the courts of this cpuitryis directly t^e contrary, by .whichi 
 the power of a partner td bind his copartners by ladmjsslon, is limited, in time to the 
 existence of the copartnership. After dissolution, his admission will not be received, even 
 respecting previous tratisactidns of the firm, so as to affect any other -than himself., 
 Accordingly,' he cannot after dissolution, state an account with a fwrmer creditor of the 
 firm, so as to affect his Co-debtors. Hackley v. Patrick, 3 John. Rep. 536; Waldenv. 
 ' ; ' Shetbnrne, 15 Id..409 i Sheltfain v. Cbcke,. 3 Munf 191 ; Walker v. Duberry, 1 MaWh.. 
 *499 Kent'y Rep. 180, So,' of his affidavit of facts showing *that the debt claimed as ai 
 ' set-off by him and his copartners, is not due. Hopkins v. Banks et al., 7 Cowen'a 
 Kep. 650. Biit the admission of a debt byone of several partners, made after dissolutiorij 
 will take the debt so admitted out. of the Statute of Limitations', though the original debt 
 cannot be so proved. Shelton v. Cocke, 3 Munf. 191 ; Smith v. Ludlow, 6 John. Rep. 367i 
 Entries made, after dissolution, in partnership books, are evidence against liim alone who 
 inade them. Simonton's Assignees v.' Boucher, 3 Wash. C. C. Bep. 473. Action for 
 attorney's fees. The defendants had been partners, but their partnership was dissolved. 
 After this, one of them admitted that he had employed the plaintiff's intestate, an attorney^ 
 to prosecute two suitSs for the partners. Held not sufficient to implicate both defendants. 
 ClArk V. (jleason et al., 9 GowBn's Rep. 57. On a bill filed against two partners for an 
 account of trading voyages,.iji which the complainant was jointly interested with them^ 
 one question respected the amount of the complainant's interest in a certain cargo of 
 cotton, whether'it was limited to the amount of the funds in the defendant's hands belong- 
 ing to him, and which had gr«wn out of certain previous voyages the parties had made ; 
 or whether it was one-half of the whole cargo. The partnership between the defendants 
 had been dissolved befoVe bill filed. ' On a reference to a maStery he received and aoted on 
 the admission of one of the ^lairthers before him, that the complainant's interest in the 
 cargo was limited to the ■ amount of his funds in the defendant's hands, a fact which 
 the other partner denied, insisting that the cdmplainant's interest was one-half of the 
 cargo. There having been a'great loss on the cotton, this admission very much reduced 
 tlie charges against the plaintiff. The partners were therefore interested to make his 
 interest as large as possible. On appeal to the Court of Errors, tlie counsel for the com- 
 plainant sought to taake a distinction between a partner's admitting an account, or a 
 balance of account after dissolution, and his admission of any fact; but the court held 
 there was no difference, and that, though he may bind himself by an admission at any 
 time, a partner after dissolution can make no admission whatever, which shall operate 
 igainat his copartner. Baker v. Stsckpole, 9 Cowron's Rep,' 430, 434. See Chapin v. Cole- 
 man, 11 Pick. 881. i , 
 
 The English rule was once followed in South Carolina ; accordingly in assumpsit for 
 goods sold, ag'&ihst two partnersy a letter from one, written after dissolution, admitting 
 the receipt; of an account current, and that it was correct, was held admissiMe against 
 both. Simpson et al. ads. Jeddes, 3 Bay, 538, This was in 1804; but in 1815 this case 
 Was directly^ overruled by the whole court, and the New York rule adopted. .Chardon v. 
 Calder & Co., 3 Const. Rep. 685. And again; in 1819, the same doctrine was deliberately 
 recognized on the authority of the New York cases. White v. The Union Ins. Co., 1 Nott 
 
SEC. X;]; JParties iQ-,ffeg6ti<i^la JnMniments. 
 
 *6Q0> *iBBt the statei9©nt of pne yhq has. been admitte4i i^'to- gaytney^ip 
 subsequently to the transaction in question, is clearly pot; Ji45ussible in 
 evidence, as to such antecedent transaction, (l) ; 
 
 • It does not follow, however, th^t an admission made by one, partner, or 
 other person jointly interested with; others, will in all cases be binding, on 
 the others. Itiwill not be aQ,.if it is not made with reference |tp a mfitt^ 
 in which one h?i8 power to .bind the; others. An admissipq by; a partner 
 with reference to partnership matters is binding upon th^e firm,, as an admis- 
 sion, by one executor with reference to the testator's estate, is bidding upojn 
 ihis oo-executprs ; but where two persons, are partners,, and alsorpart owners 
 of a vessel, the- adniission of pne as to a subject of po-part-ownership,;but 
 not of co-partnership, will not be binding upon the other. (2) And" in like 
 manner, where two executors were sued upon a covenant by their testatof 
 for quiet iGnjpyment, the breach assigned, being that tiie two defendants had 
 entered and evicted the plaintiff under a lawful title, it was held that a 
 declaration by one «f them, that he bad lawful title throTigh 'the testator, 
 'prior to the Covenant upon which tKe plaintiff sued, was not binding upon 
 the other defendant. (3) An 'admission by oiie trustee will riot bind his co!- 
 trustees, as they are not personally liable.{4) 
 
 & M'Coid, 561. And see Fidier'a Bx'rs v. Tucker's Ex'rs, 1 M'Oord's Ch. Rep. 171, 173. 
 ■But in Kentucky, where the New York rule is fully established (Walker v. Dflberiy, 1 
 Marsh.- 189), where one partner after dissolution, but before notice given, and before it 
 : appeared the plaintiff had any knowledge ' of: the fact, certified a btJance to be'due fro^ 
 the firm to him; held that this' was Qvidence against the old firm. Gtixdnei et al. y. 
 Towsey, 3 Litt. Rep. 425. , 
 
 ' The admission or promise of a surviving partner will not eyen take the debt out of 1:he 
 Statute of Limitations as to the estate of .the, deceased partner ; niuch less would it proye 
 an original debt. Fisher's Ex'rs v. Tuckejf's Representatives, 1 M'Cord's Ch. Rep. 169. 
 And the dictum to the contrary, in Bigginsoni and othersi v. Air and others (1 Dessauss. 
 -437), is overruled.' Id. After the partnership of the defendants was dissolyed, andthat 
 'known to the plaintiffs, one of the defendants ^certified a balance as due from, the Snn. 
 Held not admissible to charge the other partners. Ward v. Howell et al.,i5 Har. i John. 
 Bep. 60. Bat Nott, J., thought contrary to -th^ two last cases, that the confession o{ an 
 oiigiual debt by one partner was admissible against the oth^, though made after disso- 
 lution, Fisher's Ex'rs v. Tucker's Ex'rs, 1 M Cord's- Ch. B^. 190. See notes mpra, in 
 regard to joint debtors. 
 
 - Note 139. -^-ThQ anthorilaes all agree that the. admission of one partner during thp 
 continuance of the partnership is eyidence against all. Per Hosmer, C. J., jn Bound j. 
 Lathrop, 4 Conn; Rep. 338. Thus, entries^ made by one partner during the partnership 
 in the partnership book of accounts are eyidence against the other partners. Walden y. 
 Sherburne, 15 John. Rep. 409. And the acknowledgment of a debt pj one partner will 
 bind theother, because, ea<^ is bound for the whole. Per Cur, in-CorpSjV. Robinson,^ 
 Wash.-C. C. Rep, 390. In an action against a. suryivipg -partner, on a promissory note, 
 alleged to have been signed by the deceased partner witS tjie name of the firm, eyidence 
 of his confession that he fogned was admitted. Adams v. Brpwnson, 1 Tyl. 452. : Semblf, 
 ■that where a partnership between two defendants ia chancery is established by proof 
 aliunde,iiie answer of one partner is evidence against the other, the same as any othe^ 
 admission would, be. WUliams y. Hodgson, 2 Bar, & John. 474, 477! ; -Chapia v. Ctdeman, 
 11 Pick. 831. See flTiie, note 137. , . ..„ . . .. , 
 
 Confessions of one partner to charge the others are not receiyed because both are 
 parties to the record, but because of unity in their interest ; they are eyidence, therefore, 
 though a noUe prosequi be entered against the coofeasing partner. Boyce v. WatBon. 3 J. 
 J. Marsh. 498. 500. 
 
 (1) Catt V. Howard, 8 Stark. R. 5. 
 
 (2) Jaggers v. Binnings, 1 Stark. B. 64 
 
 (3) Fox y. Waters, 12 A. & E. 43. , , 
 
 (4) Davies v. Ridge, 3 Esp. 101, 102. -^5 
 ■The debt of a copartnership is a joint ^ebt, and not joint and severali La-wrenco v. 
 
 Trustees, &c., 2 Denio, 577. It follows that a dissolution of the firm leaves, the partne^ra 
 standing in no other relation- to each other but that of joint debtors, who hf^ve also a joii^| 
 interest in the property of the late firm. See Van Keuren v. Panjaelee et al., 2 Comst. 
 £23, and authorities there cited. , j ', 
 
 The general doctrine is, that an admission by one partner, m.ade after th^ dissolution, of 
 the firm, in regard to the business of the firm, preyjously transacted, is admissible as evi- 
 dence against all the partners. Gay v. Bowen, 8 Mot' 100, and cases cited wpra, in regard 
 
414 Admissions by Parties. [ch. viir. 
 
 *501 ' *In Whitcomb v. Whiting,{l) which was an action on a joint and 
 several promissory note, given by the defendant and others, to which 
 action the defendant pleaded the general issue and the Statute of Limita- 
 tions, the Court of King's Bench determined that proof of payment of 
 interest, and part of the principal, within six years, by one of the others, 
 who was not sued, would take the case out of the statute. Lord Mansfield, 
 C. J., said: "Payment by one is payment by allj the one acting virtually 
 as agent for the rest ; and, in the same manner, an admission by one is 
 an admission by all." Different opinions have been expressed respecting 
 the propriety of the decision in this case, but the doctrine contained 
 in it appears to be now clearly established. (2) And it will apply even 
 \ * 
 
 to joint debtors. The evidence is competent, not conclusive. Cady v. Sheperd, 11 Pick. 
 400 ; Lewis v. Woodworfh & Pratt, 3 Comst. 512. There is a distinction between joint 
 owners and tenants in common ; tlius, one of several owners of a vessel, -each owning a 
 fractional part of her, cannot bind the other, as for sapplies, by his admission (McLellan 
 v. Cox, 36 Maine, 95) ; unless they are jointly engaged in navigating the vessel, which it 
 seems may be presumed in the first instance froiu the fact of ownership (9 Penn. State B. 
 335,340). 
 
 In an action against several executors or administrators, the admission of one may be 
 proved against all, though it is not sufficient to charge all, and must be excluded or ruled 
 out, unless there be other evidence to charge the other parties. Forsyth v. Ganson, 5 
 Wend. 558. And it is, now well settled in this state that the admissions of an executor 
 or administratar cannot be received in evidence either as against his co-executors or co- 
 administrators, or as against heirs and devisees. 3 Cowen, 612 ; 6 John. Ch. 372 ; 4 
 Cowen, 494 ; 14 Wend. 97 ; 5 Hill, 239 ; 5 Barb. 407. Ante note 133. 
 
 (1) 2 Dougl. 661. 
 
 (2) See Pefham v. Raynal, 2 Bing. 306 ; Jackson v. Fairbank, 2 H. Bl. 340 ; Chippendale 
 V. Thurston, M. & M. 411 ; Pease v. Hurst, 10 B. & C. 123 ; Wyatt v. Hodson, 8 Bing. 309 ; 
 Bowling V. Ford, 11 M. & W. 329 ; ante, p. 491. 
 
 Note 140. — See notes above as to the rule in this country. 
 
 Where the defendant gave a letter of credit, engaging to be accountable with W. for 
 goods to be purchased by the latter, in an action against the defendant for goods sold to 
 W. under the letter ; held, that W.'s subsequent letter, admitting the purchase, was evi 
 dence against the defendant. Meade v. M'Dowell, 5 Bin. 195. In an action by a bank 
 against a surety in a bond for the good behavior of a teller, his entries of sums to his 
 <eredit, made while he was acting as teller, were held admissible as evidence against 
 his surety, as a part of the res gestce; otherwise as to his declarations after his dismissal 
 from the bank. State Bank v. Johnson, 1 Rep. Const. Ct. 404. But see Simonton's 
 AsMgnees v. Boucher, 2 Wash. C. C. Rep. 473. 
 
 The admission of one maker of a joint and several note was received against the other, 
 ■who was sued alone (Beitz v. Fuller, 1 M'Cord, 541 ; Bound ,v. Lathrop, 4Conn. Rep. 336) ; 
 and this, though the one not sued had obtained his certificate as a bankrupt, under the 
 law of the United States, and the defendant was his surety ; the court saying he must 
 indemnify his surety. Howard v. Cobb, 3 Day, 309. But the admissions of a co-obligor, 
 not sued, in a joint and several bond, were refused against the defendant. Hamlin v. 
 Fitch, Kirby, 174 ; Abel v. Porgue, 1 Root, 502. And see Baker v. Briggs, infra. On plea, 
 in abatement of a non-jpinder of A., in an action arising ex contractu (t. e. for work and 
 labor), his declarations, made before action was brought, were received in evidence for the 
 defendant, to show him a joifit contractor (t. e. a member of the company for whom 
 the work was done) ; and Abbott, Ch. J., laid down this important general rule : " Wliat- 
 ever, in an action brought against him as a proprietor, could be evidence to prove him 
 one, may be received on this issue to prove him to be one." Clay v. Langslow, 1 Mood &; 
 iitilk.. 45; Storrs V. Wetmore, Kirby, 203, contra. But the party alleged to have been 
 non-joined was received as a witness for the defendant. The direct contrary of Clay v. 
 Langslow was also resolved in Sweeting v^urner (10 John. Rep. 216). After a partner- 
 ship established, what is said by one is evidence against the other, though the former be 
 not a party on the record. Fish v. Copeland, 1 Tenn. Rep. 888 ; Adams v. Brownson, 1 
 Tyl. 452. 
 
 In the following cases the iidmission of a party not on the record, though having a com- 
 mon interest of a certain character with the party to the suit, have been denied ; it was 
 held that the admission of the principal maker of a promissory note was not admissible 
 to affect the surety who was sued alone. Baker Vv Briggs, 8 Pick. 132, 138. See Howard 
 y. Cobb, supra, contra. The plaintiff, with Q. and several others, borrowed money on a 
 note made by the plaintiff, and indorsed by G. and the others, which the plaintiff paid, and 
 »ned G.'s administrator for G.'s aliquot share, and offered the declarations of the other 
 indorsers in evidence, to prove that they were all to share alike. Held inadmissible. 
 
BBC. X.] Under a Jvdg^a Order. 415 
 
 *502 thd'ugh *the payment was made after the six yeaf fe, and -when, there- 
 fore, the statute had commenced to run,'{l) or where the person making 
 the part payment had died before action, so that the joint contract had been 
 determined. (2) And a part payment by one partner of a debt due by a 
 firm, even after the dissolution of the partnership, will have the, sarnie 
 eflEect.(3) 
 
 Admission must relate joint debt. But this doctrine does not apply 
 unless the payment is distinctly made on account of the joipt debt,(4) nor 
 
 Patting their names on- the note as joint indoreers did not make them partners. Slay- 
 maker V. Gnndncker's Ex'rs, 10 Serg. & Rawle, 75, 81. 
 
 In an action by a creditor against the heirs and .devisees pf his debtor, some of yrhom 
 were also executors, who had petitioned the surrogate for a sale of the debtor's real estate, 
 qn the ground of an alleged dejficiency of personal assets ; the admission made by tlie 
 executors in their application to the surrogate, was held by the Supreme Court to be 
 evidence against all the defendants, to show the insolvency of the debtor, with the view 
 to avoid a voluntaryconveyance made by him, and thus repeal the plea of rdng per 
 descent, or ret»« per'devise. Manhattan Co. v. Osgood, 15 John. Rep. 165. But the judg- 
 ment in that case was reversed by the Court of Errors on this single point. Osgood v. The 
 Manhattan Co., 3 Cowen's Rep. 613. Nor will an admission by an heir, or any adt of his, 
 affect a claim against the executor. Blake's Ex'rs v. Quash's Ex'rs, 3 M'Cord, 340. So 
 any acknowledgment or admission made by an executor or administrator, will not bind 
 the real a»seta in the hands of an heir or devisee, or of the people by escheat, or even 
 affect the right of either to plead the Statute of Limitations. Mooers v. White, 6 John. 
 Ch. Rep. 360. The admissions of an executor or administrator of a co-obligor, are not 
 evidence against the surviving obligor in an action against him by the obligee (Wlliner 
 v. Harris, 5 Har. & John. 1), nor are the declarations of one of several representatives of 
 the deceased admissible against another in a suit by him. Walkup v. Pratt, 5 Har. & 
 John. 51. And the executor of an executor cannot be affected by his testator's declajra^ 
 tions, that he had assets of the first testator. Knapp y. Hahfordj 6 Conn. Rep. itO, 
 174, 175, ante, note 133. 
 
 (Statute of Limitations. The language 'of the Code is, that no aekiundedgment or 
 promise shaU be sufficient unless it is made in writing. It does not require a direct promise 
 to pay in writing ; a promise may still be implied from a distinct acknowledgment of the 
 debt. McNamee v. Tenny, 41 Barb. 495. 'The date of the written promise may be sup- 
 plied by parol evidence. Edmunds v. Downes, 2 C. & Mees. 549 ; and its application to 
 the debt proved, will be presumed. Davenport v. Gilbert, 6 Bosw. 180 ; or may be 
 inferred. 41 Barb. 506. 
 
 In th^late case of Winchell v. Hicks (18 N. Y. 558), A1.1.EN J. delivering the opinion of 
 the court, considered these propositions as esta.bl}shed : "1. That the action must be sus- 
 tained upon the new promise, though the brigiiial contract is the cause of action, and the 
 complaint counts upon that as the ground of recovery. 2. That to revive or renew 
 the debt, there must be either ,an express promise to pay, or an acknowledgment 
 of its existence.from which a new proinise may be implied. 3. That this acknowledg- 
 ment or promise must be made by the party to be charged, or by his authorized agent ; 
 ajid 4. That there is no mutual agency between joint debtors, by reason of their joint con- 
 tract, which will authorize one to act for and bind the others, so as. to vary their liability." 
 Payinenl by principal on and after a reference to him, binds the latter. 18 N. Y. 558 ; 
 Hawley'v. Griswold, 43 Barb. 18. To render an acknowledgment sufBoient, it must be 
 so drawn that a promise to pay may be inferred from it. Tanner v. Smart, 9 B. & C. 13 ; 
 Eng. C. L. R. 603 ; Hart v. Prendergast, 14 M. & W. 741 ; Richardson v. Thomas, 13 Gray, 
 381. The acknowledgement, unquahfied, is evidence from which a promise and willing- 
 ness to pay may be inferred. Blpodgood v. Buren, 4 Seld. 368 ; Brown v. Keach, 24 Conn. 
 73 ; Deloach v. Turner, 7 Rich: S. C. 144. The promise or acknowledgment must be 
 made to the creditor, and must be unconditional. Bloodgood v. Buren, supra, and Wake- 
 man V. Sherman, 5 Seld. 85. The absence of a joint debtor from the state suspends the 
 running of the statute against him, although his co-debtor remains in the state. Denny 
 V. Smith, 18 N. Y. 567. See Vol. 3, p. 451, 452.) 
 
 (1) Manderston v. Robertson, 4 Man. & R. 440 ; Channell v. Ditchbum, 5 M. & W. 494. 
 See also, Bew v. Pettet, 1 A. & E. 196 ; Beaumont v. Greathead, 2 C. B. 494. 
 
 ernitra, 2 Comst. N. Y. Rep. 523. 
 
 (2) Burleigh v. Scott, 8 B. & C. 36. 
 
 (3) Goddard v. Ingram, 8 Q. B. 839. And see Wood v. Braddick, 1 Tannt. 104 ; and by 
 Lord Brougham, C, in Pritchard v. Draper, 1 Russ. & M. 191, 199, 200. Story on Partner- 
 ship, g 107. 
 
 (4) See Holme v. Green, 1 Stark. R. 488 ; Brandram v. Wharton, 1 B. & A. 463 ; Dowling 
 V. Ford, 11 M. & W. 829 ; Scholey v. Walton, 13 M. & W. 510. 
 
,41p A^mi0Qm.dy,P(trties, [en. yH% 
 
 jdiese ,th^- payment is mji^ei^by a party. npt^originally ]i3,ble.r TJ^s, after 
 tHe death of one maker of a joint and several promissory no^jfe signed By 
 two, a paymeiit upon it by the Executor of the deceased party -wlU not -take 
 "the ,<iebt out" of the s);atute as against the, survivor ;(!) nor will a paymept 
 by the survivor bind the executor of ^he d.e9ease!d;party.(^2) -.^ndjithVp 
 even been held that ah' express pi-omise by one executor will not operate eo 
 as to take the case out of the Statute of Limitations, as agkihst the 
 fsps others. (3) Where an actioin was brought *against A., and B. ^and 
 - ' ■■ C, his wif*, upon' a joint promissory note mad© by A. and C; foefbf* 
 her marriage, it was held that an acknowledgment of the note by- A., made 
 .after the marriage of C.^eithB., would not i take ; the case out pfithe 
 Statute.(4) ' ' ' 
 
 ■ ' The effect of admissions made by a party to thS suit in the course of the 
 pleadings, which do not require to be proved |iii the' same manner as ordi- 
 nary admissions, will more properly be considered in the chapter which 
 greats of the rule that the substance, only of the issue n©edl8ibe proved. 
 
 2. Of admissions by parties made 'under a judge's order. ■ '" 
 
 It is ' now proposed to ti'eat briefly of admissions , msde by. parties to a 
 suit under, a judge's order. Such admissions are in their effect siniilar to 
 those made by the attorney on the- record for the purposes of. the; suit; 
 which will be discussed! hereafter; but as admissions under a judge's ordej? 
 are calisidprea as made by the party to the suit himself, this appears tobe 
 the proper place to considef them. . ,. 
 
 ' Such admissions relate exclusively towritten documents, and the practice 
 of requiring them has. grown up, of late years, in oonftirmity with certain 
 Tules'of courtj'sanetioned by all the judges with a view of saving expense 
 to suitors in .the '%rmal proof of documents. (5) ,' ' 
 
 If S, party relies upon docttmentary evidence, he will not now, in general, 
 •be '.allowed the costs of proving, the. documents, unless, he has' before the 
 trial given notice 'to the opposite party^ requiring him to admit them. 
 This omission' tO give such" notiOe w;ill not, however, preclude him from 
 giving the documents in evidence, but he cann;ot charge the adverse party 
 with the, expense of sp doing, ^^haitever may, be the result of the, cause. 
 
 A foreign judgment, and other documents abroad, have been held to be 
 within these rules, and an Order may be laade to admit them, if the party, 
 who relies upon them, will pay to the opposite party the expenses of Qx;am- 
 ining them. (6) , . , 
 
 (I) Slater V. Lawson, IB. and Ad, 396. :fi(ee9'.Gep. IV.Vc. 14, as t,oiiewj)roiiiiBe8bxJoiiit 
 oontractors, ,ex;ec,utois or administrator^. . 
 
 (3) A.tkmsy. Tredgold,,aB. &C..23. ]' 
 
 (3) Tallocjc V. Dunij (Ry. & J^I. 416), cited vititi) approbation by Parke, B., in Sclioley 
 V.Walton (:!.3 M., ,& W. 510, 514),, 'S'^l'^re tlie same learned judge, expressed a similar 
 'opinion as to, the operatiqn of a part payment by 9pe of ;sefVPrftl executors., ,A different 
 opinion, as to tlie, effect pf auct q, promise had been, iijtimated by the Court pf King's 
 Bench, in Aikm's v. Tredgold (« B. & C;,33), and M'Culloch v.|Dawep (9 D. &E. it)). See 
 12M.&,W.S14., ..,''. ., ; ■ , 
 
 (4) Pittamv.,Foster, 1 B. &C. 248. , i 
 
 (5) Sfie Beg. & & 7 A.. D. 1838 ; 3 B, * Ad. 3^3, 893 ; Reg. 4ea. K.fc 4 Wm. IV,,r.;20, 
 A. D.;l?3|4; 5B.&Ad. App. 17, 1«. : , 
 
 (6) .Smitli; v. Bird, S.Dpwl. P, C. 641. See Bastard v. Sjnith (lO A. & E. 213), as to the 
 costs pf a witness f translate and explain anpient reconisi; anq. the cost of a^ oQoer of 
 the Court of Chancery to produce affidavits., ,; ■ , .. .' . ! ; 
 
 (Under the C!oid?i,9fi,Ne;W Torh;, ,eitl\er^ ^pftHy ^"'y ^^V'f' ^° the other or Wsf attorney 
 any paper material to the actj,9i}, apd reqijest an admissiop in writing of its genuineness ; 
 and if he refuse or fail to ^ive the admission within four days,^fter ^e request, the paf ty 
 proving it on the trial will be entitled to demand and ;receive frojii the party refusing, the 
 expenses incurred in; majiing tjie. proof, unless the court ip satisfied there were good rea- 
 sons^! the jrefuaal, And the eourt haS|power tc( order either pni;ty tq give to Jih,e otiier 
 an inspection and copy of ahy Ijooks, papers' and documents in his possession or under.'hiB 
 control,, co^^tftinJng evjdpnce relating to the /merits <ff the a()ti9R, or.tlje dejfense therein. 
 And if the party refuses to obey ^he order, the court may, on motion, eipliide the paper 
 
SEC. i.] Under a Judges Order, 41 7 
 
 *S04 *The notice is required to be giveii a reasonable time before the trial ; 
 (1) but, it seems, if the party who received the notice does not object 
 to its sufficiency upon this ground, though he refuses to admit the docu- 
 ments referred to in the notice, the other party, if he succeeds at the trial, 
 ■will be entitled to the costs of the proof (2) 
 
 ■ The order is usually made in the terms of the notice, " saving all just 
 exceptions to the admissibility of the documents as evidence." If an order 
 is so made by consent; it will be taken' as an admission that the document 
 has been properly described in the notice. Thus, where the plaintiff gave 
 the defendant notice that he might inspect, and would be required to admit 
 on the trial, a "counterpart of lease" from T. to S., dated, &c., and a 
 judge's order by consent was made for admitting the same ; the instrument 
 produced at the trial was in the form of a demise from T. to S., of the date 
 Specified, and was indorsed "counterpart," but was executed both by land- 
 lord and tenant ; it was held, that the defendant having consented to admit 
 a counterpart of lease, corresponding in date and parties with that pro- 
 duced. Could not afterwards contend that the instrument produced was a 
 lease, and was inadmissible for want of a sufficient stamp. (3) 
 
 Where an admission was that a document " signed, sealed and executed, 
 as it purports to be," the document, which was produced byiAhe party who 
 took the benefit under it, concluded " as witness the hands and seals " of the 
 parties, bjit the attestation was to signing and sealing only ; it was held, 
 that it was to be inferred that the document had been delivered, and 
 amounted in law to a deed. (4) 
 
 The doctrine that an admission of this nature will preclude the party 
 
 making it from disputing the accuracy of the description of the 
 
 *505 document, *as contained in the, admission, renders it necessary that 
 
 the party making the admission should be careful not to make it 
 
 larger than he intends. 
 
 Authority of agent to accept bills. In the late case of Wilkes v. Hop- 
 Miis,(5) the plaintiff declared upon a bill of exchange for £121 10«., 
 alleged to have been drawn by him upon, and accepted by, the defendants 
 as the Newbridge Coal Company. The plaintiff served upon the defend- 
 ants a notice to admit a "bill of exchange, drawn for £121 10s. by the 
 plaintiff upon, and directed to [thfe defendants as] the Newbridge Coal 
 Company, &c., and accepted by one H. Bishop, for [the defendants as] the 
 Newbridge Coal Company, payable," &c., &c. An order was made by con- 
 
 from being giveii in evidence, or punish the party refusing, or both. §388. Seeposi, 
 note. 
 
 (1) See the Rules of Court, ut supra. 
 
 (2) Tinn.v. Billingsley, 2 C, M. & B. 253. 
 
 (3) Doe d. Wright v. Smith, 8 A. & E. 255. 
 
 (Admissions before trial, in England, are now regulated and required by the Common 
 Law Procedure Act, 1853, which provides that: "Either party may call on the other 
 party by notice to admit any document, saving all just exceptions ; and, in case of refusal 
 or neglect to admit, the costs of proving the document, shall be paid by the party so neg^ 
 lecting or refusing, whatever the result of the cause may be ; unless at the trial the judga 
 shall certify that the refusal to admit was reasonable ; and no costs of proving any docu- 
 ment shall be allowed unless such notice be given, except in cases where the omission to 
 give the notice is, in the opinion of the master, a saving of expense." 15 & 16 Vict o 
 76,8117. 
 
 Under this form of admission, which is the same as that under the previous rules of 
 court, an admission of copies of documents does not dispense with the production of the 
 originals. Sharpe v. Lambe, 11 A. & E. 805. But the admission of a deed is a waiver of 
 abieotion to it oil the ground that it appears to have been interlined (Freeman v. Steggall, 
 19 L. J., 18 Q. B.) ; though an admission of signature to a draft does not waive an object 
 tion to it on account of the insuflSciency of the stamp. Vain v. Whittington 2 Dowl 
 (N. S.) 757.) 
 
 (4) Hall V. Bainbridge, 17 L. J., Q. B. 317. 
 
 (5) 1 C. B. 737. See also Poole v. Palmer, C. & Marsh. 69. 
 Vol. I. 53 
 
418 Admissions by Parties. [ch. viii. 
 
 Bent to admit the drawing and acceptance according to the notice. At the 
 trial, the defendants wished io deny the authority , of H. Bishop to bind 
 the firm by such acceptance ; but it was held, that they were precluded by 
 the terms of the admission from so doing ; and that the admission was not 
 merely to the effect that H. Bishop signed an acceptance purporting to bind 
 the firm. Tindal, C. J., in giving the judgment of the court, observed: 
 "How far this might have been the case {i. e.,,that nothing more was 
 admitted than that the acceptance was in the handwriting of H. Bishop), 
 if the bill had been set out, in the notice to admit, in the precise terms in 
 which it purports to have been drawn ; that is, if it had been described as 
 a bill drawn on the Newbridge Coal Company, and to have been accepted 
 for the Newbridge Coal Company by H. Bishop, we are not called upon to 
 determine ; for the bill is described in the notice to admit, as a bill ' drawn 
 upon, and directed to the defendants as the Newbridge Coal Company,' and 
 to be ' accepted by one H. Bishop, for the defendants, as the Newbridge 
 Coal Company.' So that the facts — that the defendants constitute the 
 Newbridge Coal Company, and that the bill is accepted by H. Bishop for 
 the defendants — facts not appearing on the face of the bill — are plainly 
 and unequivocally admitted under this notice."(l) 
 
 Order does not preclude objection to admissibility. But the party upon 
 whom the order to admit is made, is entitled to rely upon any just excep-' 
 tion against the admissibility of any d-ocument as evidence, even though 
 the saving as to exceptions should be omitted from such order. Thus, where 
 a plaintiff was ordered to admit " a copy of a letter " from himself to one 
 of the defendants, who had suffered judgment by default ; it was 
 *506 held; that this did not authorize the giving in *evidence such copy, 
 without proof of what had- become of the original, though notice to 
 produce had been given to the plaintiff, it not being proved that the plaint- 
 iff had the original. (2) "The judge's order," observed Lord Denman, C. 
 J., " secures the accuracy of the secondary evidence, but does not give it 
 the effect of primary evidence." So where the order was to admit " a bill 
 of exchange for £33, at three months' date, drawn by," &c. ; it was ruled, 
 that this did not preclude the party upon whom the order was made, from 
 objecting that the bill was not admissible, as not being properly stamped. (3) 
 
 A slight variation between the notice or order, and the document itseli, 
 will not prevent the opposite party from availing himself of the admission, 
 if the variation was not one calculated to mislead. Thus, where a promis- 
 sory note was described in the notice to admit, as payable on the 10th of 
 October, instead of November, but in all other respects was correctly 
 described ; it was ruled that the defendant, who had made the admission, 
 could not object to the note being read. (4) So where a judge's order to 
 admit referred to a notice served by the defendant's attorney, dated the 
 4th of March, and the note produced was dated the 1 st ; but the 4)laintiff's 
 attorney stated it was <Aie only notice served in the cause; it was held 
 sufficient. (5) 
 
 It is not necessary to prove that the party, who has admitted a docu- 
 ment, has actually inspected it beforehand. li' he has the opportunity to do 
 Bo, and does not take the trouble, he places himself in the same situation as 
 if he had. (6) 
 
 (1) 1 C. B. 746. The court, however, upon affliiavits tliat the defendants were taken by 
 Burpriee at the extent to which their admiHsion had been carried, and hod thereby been 
 prevented from entering into their real defense, allowed their admission to be remodeled 
 by striking out the words in brackets, and granted a new trial upon payment of costs. 
 
 (2) 1 Sharpe v. Lamb, 11 A. & E. 805. 
 
 (3) Vain v. Whittington, C. & Marsh, 484. 
 
 (4) Field v. Henung, 7 C. & P. 619 ; S. U., in bank {nom. Field v. Flemming), 5 Dowl. 
 P. C. i'iO. 
 
 (5) Bittleston v. Cooper, 14 M. & W. 899. 
 
 (3) By Patteaon. J., in Doe d. Wright v. Smith, 8 A. & E. 264. 
 
SEC. X.] Admissions by Agent. 419 
 
 Nor does ^t seem absolutely necessary to prove that the document 
 produced at the trial was the same as the one produced at the judge's 
 chambers ; to require such evidence would be to multiply proofs so as to 
 defeat the rules of court. (1) But it is usual, and is certainly expedient, 
 to be prepared with some evidence to identify the document. (2) 
 
 An admission made under a judge's order, will be available upon a new 
 trial of the same cause, even though there has been an alteration in the 
 pleadings, provided the alteration does not affect the subject matter of 
 the admission. (3) 
 
 If the party upon whom the order is made, refuses, at the trial, to 
 *507 make *the required admissions, and is successful, the court will gran^ 
 a new trial, and make him pay all preceding expenses. (4) 
 
 The jurisdiction given to the rules of court is confined to a judge at 
 chambers, yet at his desire, the court in bank, though they have no power 
 to make an order, will hear the argument, and communicate their opinion to 
 to him. (5) 
 
 3. Of admissions by the agent of a party. 
 
 It is proposed to consider next the subject of admissions by agents of 
 parties. These admissions appear to be liable to some objections, from 
 which the admissions of the parties themselves are free. Tindal, C. J., has 
 observed: (6) "It is dangerous to open the door to declarations of agents^ 
 beyond what the cases have already done. The declaration itself is evi- 
 dence against the principal, though not given on oath ; it is made in his 
 absence, when he has no opportunity to dispute or correct it by any observa- 
 tion or by any question put to the agent, and it is frequently brought 
 before the court and jury after a long interval of time. It is liable, there- 
 fore, to suspicion originally, from carelessness or misapprehension in the 
 original hearer, and to still further suspicion from the faithlessness of 
 memory in the reporter, and from the facility with which he may give an 
 untrue account. Evidence, therefore, of such a nature ought always to be 
 kept within the strictest rules, to which the cases have confined it." There 
 is less necessity for resorting to such evidence, in the case of living agents, 
 than where proof is given of the admissions of parties who may refuse to 
 be examined ; and, perhaps, the admissions of agents may be considered 
 not so likely, as those of the parties, to contain an accurate and complete 
 statement of circumstances. 
 
 Numerous questions have arisen respecting the point how far the admis- 
 sions of agents may. affect their principals. The general rule may be 
 stated thus : That the statement or representation of an agent, at the time 
 of a transaction which is within the scope of his authority, is evidence 
 against the principal himself, in consequence of the legal relation between 
 
 Erincipal and agent. It is in the nature of original evidence and not of 
 earsay, the representation or statement of the agent in such cases being 
 the ultimate fact to be proved, and not an admission of some other fact. 
 Thus, what an agent says at the time of a sale, which he is employed 
 to make, is evidence as part of the transaction of selling ; and in order to 
 prove what was said, it cannot be necessary that the agent himself should 
 be called. (7) 
 
 (1) By Coleridge, J., Id. 265. "^ 
 
 (2) See Clay v. Thackray, 9 C. & P. 47. 53 ; S. C, not S. P., nom. Clay v. Shackeray, 3 
 Moo & R. 244 ; Doe d. Tindal v. Roe, 5 Dowl. P. C 420. 
 
 (8) Langley v. Oxford (Earl), 1 M. & W. 508. See also Elton v. Larkins, 5 C. & P. 386 ; 
 Doe d. Wetherall v. Bird, 7 C. & P. 6. 
 
 (4) Doe d. Tindal v. Boe, ut mpra. 
 
 (5) Smith v. Bird, 3 Dowl. P. C. 641. 
 
 (6) In Garth v. Howard, 8 Bing. 453. 
 
 (7) See the judgment of Grant, M. R., in Fairlie v. Hastings, 10 Ves. 123, 126, 12T ; 
 Helyear v. Hawke, 5 Eap. 72 ; Betham v. Benson, Gow, 45 ; Alexander v. Gibson, 2 Camp, 
 
420 ji,dmissions by Agent. [en. Tin. 
 
 535 ; Irring y. .Illotley, 7 Bing. 553 ; Peyton v. St. Thomas's, Hospital, 3 C, & P. 
 
 *508 863 ; S. C., nom. Peytdn v. ^Loudon (Mayor, &c,), 9 B. &, t. 725 ; Peto v. Hague, 5 
 
 Bsp. 134 ; Stmnlack v. Lock, 10 B. Moore, 39 ; Morel v. Harborougii (Boi'd), 1 Gale; 
 
 146 ; Ltieas v. Godwin, 8 N. C. 737'; E. v. Hall, 8 C. & P. 358 ;: Mortimer v.M'Callan, 6 
 
 Jtf. &W. 58. ' ,;, : 
 
 Note 141. — The distinctions containe|d in Fairlie \. Hastings, relied on by our author, 
 fl,nd now so fully jeoognized by the Einglish authorities,' have continued to- maintain their 
 ground in England, and ifotmed the grand teixt ilpbti which all the Ainerican coutttf have 
 profceeded, with perhaps leas deviation than the English 'courts theinsfelves. These dis- 
 tinctions have been' often laid down in the abstract ; and ! still oftener illustrated hy ths 
 variety of aspects and relations in which the declarations of the agent have presented 
 themselves. We are, iwthe first place,, after fixing upon him the. character of aa agent, 
 to inquire whether his acts, statements, or declarations proposed to he given in evidence, 
 took' place while he was making the agreement, or otherwise proceeding" within the Sco^ 
 or bounds of the authority which we fijiihe possessed. If ithis be so, they are the acts, 
 Htatemeiits, or declarations of the principal himself ; i and though the party insisting upon 
 them as. such, may call the agent and prove them by him, yet he n:(ay Ije ^passed by, and 
 any third person havjng the requisite knowledge of sucTi acts, statements, or declarations, 
 isequallyadinissible for that purpose. Eawson v. AdaTntf,'17 John. Rep. 130, 131; Sher- 
 man V. Crosby, 11 Id. 70. 71 ; Shelmaker v. Thomas, 7 Serg. & Rawle, 109 ; Meredith 'v*. 
 Kennedy, Litt. Sel. Cas. 516, 517. 518:' Hood v. Reeive, 3 Carr. &.P. 532; per Spencer, J., 
 in Goleman v. Southwick, 9 Jtfhn Repi'54, 55; per Marcy, J., in Benjamin v. Smith, 4 
 Wend. 334 ; Thallhimer v. Brinckerhoff,,4 Wend. 396, 397 ; Burlington, v. Calais, 1 Verm. 
 385 ; Perkins v. Burnet, 3 Root, 30 ; Mather v. Plielps, Id. 150; Irving v. Motley, 7 Bihg;. 
 543 ; Webb v. Alekander,, 7 Welid. 381, 383, 286. Thus, if the agent's declaration he bf^ 
 letter, instfead of calling him, you may call another and prove the signature to be lii his 
 handwriting, as if it were actually a letter of the ,principal ; for it is so in law. Daniel v. 
 Hill, Norris' Peake, 49. But ae^. you must show that it was sent ; and it is not enough 
 to prove a copy from the agent's files, though he be dead, unless the original be accounted 
 for. Davis- v; Masoin, 4 Pick. 156. Nor this, though the copy be properly directed. Id'. 
 Bo copies of invoices made by him caniiot he proved, though the originals remain in his 
 custody. Cooper V. Morrell, 4 Yeates, 341. : 
 
 , We proceed, therefore, to a brief sketch of the cases, as they show,, first, when, the dec- 
 laration of the agent proposed to be given in evidence shall be deemed within his author- 
 ity, or, as it is often expressed, a part of the res gestoe; &iiA secondly, when they are 
 beyond his authority, arid therefore like any declaration of a third person, 'inadmissible 
 without the sanction of his oath. 
 
 , : Ilrst. For the declarations of corporators offered in evidence to affect the interest of the 
 institution to which they belong, we refer generally to the previous note 134, on this sub- 
 ject. The cases as to the admission of joint wrongdoers ante, notes 135 and 136, may also 
 be advantageously consulted, as having an important bearing on the" question whe'ii a 
 declaration shall be deemed a part of the res gesta. 
 
 ' ' The admission of an overseer of the poor that he had tBeceived the requisite notice to 
 charge his town with the expenses of a pauper, such admission being made by hin» while 
 engaged in court as agent, defending the town against the claim as is his o£5ce and duty 
 by law, is admissible in evidence against the tojvn at any time after. Burlington v.'Calais, 
 8 Verm. Rep. 885. Aid note, this admission was made while trying the cause in the 
 court below before the'justice, and was received as evidence against the tijwn on the^rial 
 ,upon appeal, as it would have Ijeen if made by the party himself. . Reed v. Rocap, 4 Halst 
 ,346,352; Fitch V.Hyde, Kirby, 358, 259, stated <Mi<e, note 133. ■ 
 
 It has also been made a question whether the admissions of counsel upon one trial 
 ■would be evidence against the client in another ; for the cbuhsel is equally authorized to 
 make the particular admission as was the overseer. But'he has no such general p6wer, 
 and hence it has been holden that his admissions cannot he received out of the cause 
 (Harrison's Devisees v. Baker, 5 Litt. 250); and that a biU of exceptions is not evidence 
 in or out of the particular cau?e (Baylor v. Smith^ra, 1 Mqh. 6, 7). ; though held, it may 
 be in the same cause, to discredit a -witness (Id.); but qxwn. Nor is a case made for a 
 heV trial evidence in another S'uit, though both suits relate to the same Subject matter. 
 And such cases ought not, perhaps, in any case, to be received as evidence, unless the admis- 
 sion of some fact contained in them be made the Condition of a now trial. Elting v. Scott, 
 3 John. Rep. 157, 163 ; Harrison's Devisees v. Baker, 5 Litt. 350, 252, 354. Nor dpes 
 *509 a demurrer to a plea so ndfnit the facts as to be received in another cause *bet\yeen 
 the same parties. Tompkins v. Ashley, 1 Mood. & Mnlk. 32, 38. But a bill ofpar^ 
 ticulars was held an admission in the, partici^lar cause in which it was rendered. Rymet 
 ■V. Cook, 1 Mood. & Malk. 86, 87, notei But see Brittingliam v. Stevens, I'Hall's E!ep. ^. 
 Y. S. C. 379, cmitva. So a notice from the attorney may be used as an admission in the 
 particular cause. Holt v. Squire, cited in the text. 
 
 When the wife shall be deemed the agent of the husband, and so her admissions 
 received, see antei note 46. 
 
 Of confessions by the under-sheriff, deputy or bailiff, to charge the sheriff, see infra. 
 
SBC. x;] : Admissions by Agent. 421 
 
 The defendant asreed to pay to»the plaintiff a sum of money, iti consideration of the 
 plaintiff suffering uis wife to five separate, and delivering to her certain property. In a. 
 suit for the money, the wife's declarations that she had received the property, were held 
 Admissible against the defendant, she being his agent for this purpose. The Court said 
 her receipt Would havelbaen evidence of the delivery, and her parol aduiission ought to 
 be equally so. Fenner v. Lewis, 10 John. Eep. 38, 44, 45. 
 
 Biit note, this case seems more difficult to support as one of a mere agency admission, 
 than as the admission' of the real party in interest, though not On the reconl, according 
 to the rule, a/nte, in the text, and note 133. ' 
 
 The defendant havihg written to the plaintiff that he would be accountable with W. 
 for any contract he would taiake for the purchase of goods, in an action for goods sold to 
 W., held that a letter from W. subsequent to the purchase, acknow;ledging the purchase 
 of goods from the plairitiff. Was evidenee against the defendant. And Trlghman, C. J., 
 said, the defendant' having confided to W. the power of making the contract. Confided to 
 him, of consequence, the power of furnishing evidence of the contract. Meade v. 
 M'Dowell, 5 Bihn. 195. Bnfrnote, this is more like the case of principal and surety, than 
 principal and agent. Both parties seem to have been liable ; the defendant as surety, on 
 his letter of credit, and the purchaser as a principal. Atite, note 140. Aiccordingly it is 
 said, the letters of au agent cannot be received in evidence to prove facts stated in them, 
 fie is a cOmpfetenl witness, and should be sworn to prove these. But his letters may be 
 received to show what facts he has stated in the course of his business as agent, in order 
 to explain upon what motives and principles the party receiving them acted ; though the 
 facts stated must be proved otherwise. Blight v. Ashley, 1 Peters' C. C. Rep. 15, 21, per 
 Washington, J. 
 
 In assumpsit for money had and received, the plaintiff offered in evidence what the 
 defendant's agent who recciived the money, said. Curia : " What he said and did in that 
 transaction is the same as said and done by the defendant." Perkins v. Burnet, 2 Root, 
 80. To repel a plea of usury to a promissory note, the plaintiff offered to show what the 
 defendant's son had said while acting- as agent in relation to the transaction in question. 
 Held admigsible. Mather v. Phelps, Id. 150. So an e^ntry of deposit by the agent of a 
 bank in a bank-book accompanying the deposit, is a conclusive admission against the'bank ; 
 otljerwisfe, if nlade afterwar^. Manhattan Co. v. Lydig, 4 John. Bep. 389. So the entry 
 in a bank-book of a dealer, oi the amount of his deposit, made by a teller or clerk of the 
 bank, is an entry by the bank agent. He |s not the agent of the diaier, and a mistake may 
 be shown by the latter. Mechanics' and FiiTmers' Bank in the city of Albany v. Smith, 19 
 John. Rep. 115. Accordingly, in assumpsit for the price of hides sold by a butchdr, against 
 the proprietdfs of d tan-yard, their general manager of tjie yard, who had power to buy 
 hides and Sell leather, gave the plaintiff three certiilcates of different dates ; one that 
 $1,640.75 was due the plaintiff on settlement ; one that $2,843.25, and another that 11,297.30 
 worth of hides had been received b^ him from such a day to such a day, mentioning the 
 time in each certificate ; and signed hisname. And these certificates were held admissible to 
 cljarge the defendants. Marshall, Ch. J., said the proprietors themselves might have given 
 such papers ; and their general manager had the same power ; and the court held all the 
 papers receivable in evidence against the defendants, including that which certified the set- 
 tlement or balance struck. Barry v. Foyles, 1 Pet. S. C. Rep. 311. And see Rawson v. Adams, 
 17 John. R. 130. So to prove a loss on an adventure shipped to New York, the account of 
 sales by the factor was rtceived in evidence on proving his signature to the account. Rich v. 
 Broadfield, 1 Dall. 16. And ««/»&. the log book of a ship is evidence for (of course it is so 
 against) the owner ; but it must be proved to have been regularly made. Proof of the mate's 
 handwriting in many parts, and that a sailor saw him writing " log-book of the Lydia " 
 ■*510 (the *name of the ship), during the voyage^ held not enough. United States v. 
 Mitchell, 3 Wash. C. C. Rep. 478. Such strict proof would of course not be necessary 
 where it is used against the owner. So the declaration of a sheriff or auctioneer as to 
 what property is up for sale, e. g., whether it be the whole farm or only a certain parcel 
 of it, is admissible. Wright's Lessee v. Deklyne, 1 Pet. C. C. Rep. 199, 201, 204.. And 
 in assumpsit for ten kegs of dollars, against a bank, the plaintiff proved that the kegS; 
 being brought to the bank against the plaintiff's will, were paid out for the debts of the 
 bank by direction of H. and B., president and cashier pro tempore. And this was held 
 admissible, though H. and B. were both within reach of a subpoena ; because a president 
 and casliier of a bank may direct money in the bank to be paid out for the debts of the 
 institution. But the subsequent admission of the president as to a bag of dollai-s which 
 tad been brought into the l)ank and converted by a stockholder, that this was the plain- 
 tiff's property, was held inadmissible. The City Bank of Baltimore v. Bateman, 7 Har. & 
 John. lOl. So on a libel against goods, as being forfeited by illegal exportation, in a 
 trade with the Indians, the declarations and acts of the exporters' agent, or of any one 
 who acted in conjunction with the exporters in the course of their business, were held 
 •admissible as evidence against the goods. American Fur Company' v. The United States 
 2 Pet. S. C. Rep. 358. So' in a statute proceeding, to recover for labor done on the 
 respondent's ship, ho insisted that the libelant had been paid by a note of W. & C. 
 fornier owners. The libelant' insisted that the note was not paid, but renewed and 
 
422 Admissions by Agtn^. [gh. viil 
 
 (discounted, the money going to W. and C. A witnes% for .the libelant proved that W. 
 and C.'s clerk came to the libelant, and requested him to renew the note, which he did. 
 Objected that this was l^jBarsay ; and that the clerk should be sworn as a witness; but 
 the objection was overruled. The court say, being clerk of W. and C, he was their 
 agent ; and liis sayings and doings were matters of fact. Ship Portland v. Lewis, % 
 Serg. & Kawle, lOf, 203. And though the acts of a deputy surveyor in surveying state 
 lands for A. cannot be given in evidence for him without producing the public authority 
 .under which the deputy acted, yet the unauthorized act of the deputy, done or attempted 
 by the procurement of A., may be given in evidence against him. Unger v. Wiggins, 
 1 Rawle, 331. So in an action by the owners of a vessel on a policy of insurance, the 
 protest of the master and mariners, is admissible evidence for the plaintiffs,, and of course 
 for the defendants. Miller v. South Carolina Ins. Company, 2 M'Cord, 338 ; Campbell y. 
 Williamson, 2 Bay, 237. E. g., as to the cause of deviation, or the. seaworthiness of the 
 vessel. " Id. The plaintiff made an agent to receive certain moneys cqllected for him by 
 the defendant. Held, that the agent's drafts on, and receipts to the defend int for, money, 
 Jiis letters in the course of the business to the defendant, a^d an account and balance 
 struck between them in respect to the money ; and the agent's admission of payment 
 at the time of so settling, were all evidence for the defendant. "The agent need not be 
 made a witness by him. Thallhimer v. Brinkerhoff, 6 Cowen's Rep. 90, 99, 100. And 
 see Sherman v. Crosby, 11 John. R. 70. So a letter from the debtors agent (authorized 
 to do the act), directing the creditor on which of several debts to apply certain moneys 
 paid, were held admissible to prove the application of the payment. Mitchell v. Dall, 
 .3 Har. & Gill, 159, 170. The party had employed Fitch as agent to sell for him a 
 quantity of barilla, who sold part to the defendant, who gave his note. The barilla was 
 in truth worth nothing ; and in an action on the note, the defense being that there 
 was fraud, the defendant proved the declarations of Fitch in respect to the quality of 
 the remaining quantity on hand, after the sale to the defendant. The court thought 
 that as Fitch was agent for selling the whole, his declarations, whUe engaged in that 
 agency, were admissible against the plaintiff. But the cause went off mainly on another 
 point. Welch v. Carter, 1 Wend. Rep 185, 190, 191. 
 
 In an action for money had and received, it appeared that the defendants' agents had 
 directions to receive the money and remit it to the defendants. A letter from the agents 
 admitting they had received it — that letter being answered by one from the defend- 
 ants — was therefore received in evidence against the defendants, as a declaration made 
 in the course of their business as agents. 'I^he object of the letter was to show the 
 money to be in the hands of the defendants' agents. Coates v. Bainbridge, 5 Bing. 58; 
 S. C, 2 Moore & Payne, 143. In assumpsit on a promise to remove certain mud, which 
 the defendant's foreman had asked leave to throw on the plaintiff's land, on cleansing a 
 stream for the benefit of the defendant's mill, the plaintiff offered to prove what the 
 defendant's clerk in his counting-house, and who also had the internal management of 
 
 the mill, liad directed the foreman as to cleaning the stream and taking away the 
 *511 *mud. Held inadmissible. The act of throwing out the mud was not within 
 
 the ordinary business of the defendant as a miller, and the clerk who managed the 
 mill could not, therefore, interfere. Suppose, said Best, C. J., the defendant's house had 
 been out of repair, the repairing would not come within the business of the clerk as 
 agent in the counting-room. Shunlack v. Lopk, 10 B. Moore, 39. The acknowledgment 
 of the cashier of a bank, that a note had been paid, was received and held pHinO. facie 
 evidence against the bank. State Bank v. W^ilson, 1 Dev. 484. no where the wife of 
 the plaintiff, who was shown to be the plaintiff's agent for the purpose, declared that the 
 demand in question had been sold by her to F., this was held admissible as evidence 
 against the plaintiff, and that any one might safely treat with F. concerning it. Curtis 
 v. Ingham, 3 Verm. Rep. 287, 289. Note — the plaintiff had left the state, leaving the 
 whole control of this business with liis wife. On trying a claim as informer against 
 the United States collector, tor the proceeds of goods informed against, the admissions 
 of his deputy, while engaged in the seizure and securing the property, are admissible 
 against the collector as to the fact of the claimant being the real informer, but not after 
 the goods are secured in the store, or the transaction otherwise closed by him. In the 
 first case they are a part of the re» geatm ; in the last, not. Westcott v. Bradford. 4 
 Wash. C. C. Rep. 492, 499 to 501. An attorney-general has power to make admissions 
 favorable to the accused. State v. Fields, Peck. 140. And the declarations of a surveyor 
 authorized by the owner of land to survey and lay out a town, made in reference to 
 matters chielly within the scope of his powers, and while he is acting in his agency, aro 
 evidence against the owner and his grantees. Barclay v. Howell's Lessee, 6 Pet. S. C. 
 Bep. 498 ; M'Cormick y. Barnum, 10 Wend. Uep. 104, S. P. In the latter case the sur- 
 veyor was dead, but this was not relied upon. His declaration was considered within 
 the scope of his power, which wos to make a survey and allotment for the owner, though 
 made just after the close of his survey. But see Meredith v. Kennedy (Litt. Sel. Ca». 
 516, Sn, 518, stated also infra), which holds that such subsequent declarations cannot be 
 receiveid. The declarations of the defendant's supercargo, made while sailing, that the 
 deviation of the vessel from the voyage described in the charter party was by his 
 
SEC. X.] Admissions by Agent. 423 
 
 (the supercargo's) direction, were received in evidence against the defendant. Higgins t. 
 Soloman. 2 Hall's Rep. N. Y. S. C. 483, 487, 488. The defendant gave a written order on 
 the plaintiff ia favor of S., stating that S. wished to trade with the plaintiff for hides 
 to the amount of eighty or one hundred dollars, and that the defendant would be 
 responsible for the engagements of S., and S. indorsed on the order a receipt for the 
 hides " to the amount of one hundred dollars," &c. ; held, that the receipt so indorsed 
 ■was prima /ocie evidence of the delivery of the hides pursuant to the order. The court 
 say that S. was the defendant's agent, having authority to receive, and the receipt was 
 his act as agent. Kawson v. Adams, 17 John. Rep. 180. 
 
 Secondly, we are to present the cases where the declarations or statements proposed to 
 be proved are beyond the scope of the agent's authority, in which case they are not evi- 
 dence to affect his principal, farther than any mere assertion, though they reg'ard acts 
 which were within his authority. Per Cheves, J., in State Bank v. Johnson, 1 Ke'p. Const. 
 Ct. 409 ; Blight v. Ashlev, 1 Pet. C. C. Rep 15, 31 ; Webb v. Alexander. 7 Wend. Rep. 
 281, 283, 286 ; per M'Lean, J., in Barclay v. Howell's Lessee, 6 Pet. S. C. Rep. 404. And 
 this, though they are contained in the agent's sworn answer to a bill in chancery. Leeds 
 V. The Marine Ins. Co. of Alexandria, 2 Wheat. 880. 
 
 In assumpsit for work and labor, the plaintiff was allowed to prove by D. the declara- 
 tion of the defendant's agent concerning buildings erected by the plaintiff on the farm of 
 a third person, with whom it did not appear the defendant had any connection. This 
 was left to the jury, with instructions that, if they believed D., they should find for the 
 plaintiff. Held erroneous, for no connection was shown between the defendant and the third 
 person. Irvine v. Buckaloe, 12 Serg. & Rawle, 85. The defendant, by F., hie agent, pur- 
 chased certain trees of the plaintiff's intestate. Held, that a subsequent written account 
 mad« by F., of the timber cut under F.'s direction for the defendant, was not admissible in 
 evidence against hfni. Pasteur v. Parker, 3 Rand. 458. So in assumpsit for the price of 
 pig iron, the delivery was sought to be proved by the certificate of the defendant's clerk, 
 dated Nov. 1815, that the quantity of pig iron delivered to him by the plaintiff in October 
 and November, 1814, was so much. Held inadmissible, it being a past transaction, and 
 not a receipt given at the time, which, aemble, would have been evidence. The plain- 
 *251 tiff should have sworn the clerk as a witness. Glasser v. Reno, 6 Serg. & *Rawle, 
 206, 207. Again ; in an action for money had and received, the claim arose from 
 the defendant having received money from the treasury for certain rations furnished to the 
 army by one Bradshaw. The plaintiffs claimed that Bradshaw, ijow deceased, was their 
 agent in furnishing the rations ; and the defendant, that he was his agent in furnishing 
 them. The defendant offered in evidence a written statement of facts by Bradshaw, 
 respecting the matter in controversy, made to be submitted to referees in a controversy 
 between himself and one Duncan. Held inadmissible. The plaintiffs then offered in evi- 
 dence Bradshaw's letter denying that the defendant had supplied the rations ; but this 
 was in answer to certain declarations of his to the contrary, which the defendant had given 
 in evidence. Held admissible only in this point of view, but not as proof of an independ- 
 ent fact. TurnbuU et al. v. O'Hara, 4 Yeates. 446, 452, 453. Quere. Action for money 
 paid as a premium in effecting an insurance for the defendant. W., as the defendant's 
 agent, requested the plaintiff to insure, and gave to the plaintiff his (W.'g) own note, but 
 failed. The plaintiff offered to prove the subsequent declarations of W., that the defend- 
 ant would pay the debt. Held inadmissible. The reason given is, that W. was agent 
 only to effect the policy, not to bind the defendant by a subsequent promise to pay. Mil- 
 liek V. Peterson, 2 Wash. C. C. Rep. 31. 
 
 In ejectment founded on an entry and survey, the admission of the plaintiff's agents 
 and surveyors, that they had agreed to a survey which should not interfere with the 
 defendants, were held inadmissible against the plaintiff, not being made in the course of 
 their acts as agents ; but afterwards. Meredith v. Kennedy, Lit. Sel. Cas. 516,517, 518. 
 Quere. See M^Cormick v. Barnum, 10 Wend. 104, and Barclay v. Howell's Lessee. 6 Pet. 
 498, both cited supra. But in the New York case the surveyor was dead, and it was a 
 declaration as to boundaries, and in the case from Peters, the declarations of the surveyor 
 were while he was acting as such. In trover against four, two of them owners, and two 
 agents of the owners in managing a warehouse, the two agents admitted that they, by the 
 owners' ordjrs, converted the plaintiff's whisky which he had at the warehouse. He'd 
 inadmissible, as the admissions were not at the time of their doing the acts complained 
 of. Roberts, &c. v. Burks, Litt. Sel. Cas. 411. The plaintiff appointed an agent to settle 
 with, and receive money from, the defendant for a debt. The defendant, to prove a set- 
 tlement and payment between him and the a^ent, offered in evidence an account current, 
 to which the agent had made an affidavit. Held inadmissible, it being the admission of 
 past acts of the agent, and the admission not within the scope of his authority. Thall- 
 himer v. Brinckerhoff, 4 Wend. Rep. 394. So the declarations of one who had been an 
 agent to make a contract, after he had made it, though he was still an agent to make like 
 contracts for the same party, were held inadmissible to affect his principal in respect to 
 the terms or construction of the former contract ; for such were not a part of the reggeata. 
 Haven v. Brown, 7 Greenl 421. (See rule applied in Rothschild v. Schuberth, 8 Bosw. 
 289, 293, holding, however, that the declarations of a general agent bind his principal • 
 
424 Admissions iy. Parties, [ch. tiii< 
 
 as in Fanners' & Mechanics' Bank v. Butchers' & Droyers.' Bank, 16 N. T., 135.) So the 
 declarations of an agent, that he had given'^license to enter and cut timber, are not admiSr 
 Bible against his principal ; being an admission of what was past. Hubbard t, Elmer, 7 
 Wend. Rep. 446, 448. The maker gave a proposition for time on his note at the bank to 
 the cashier, who, as he promised, submitted the proposition to the directors ; and came 
 and told the maker that the proposition had been accepted. It was proposed, to give this 
 in evidence against the bank, the cashier being their general agent, whict fact Tyas 
 admitted. But held, that notwithstanding, this information was not a part of the rea 
 geatm. He did not himself make the contract for time ;' it was made by the directors. He 
 merely carried the proposal and brought back the answer ; and the information being but 
 hearsay, held, the agent must be sworn. Grafton Bank v. Woodward, 5 N. H. Bep. 301, 
 308, 809. An agent appointed to superintend the execution of a survey in a suit of chan- 
 cery, has no authority to admit the notoriety of any object whose notoriety may.bp 
 material in the cause. Eobinson v. Morgan, Litt. Sel. Cas. 56. In detinue for the^ plain- 
 tiff's goods, pawned without his authority to the defendant, a pawnbroker, the only 
 evidence to charge the defendant with possession, was the admission of the defendant's 
 shopman, made at the house of the plaintiff's attorney. And Tindal, C. J., delivering the 
 opinion of the court, said if the transaction had been one in the ordinary trade and busi- 
 ness of the defendant as a pawnbroker, in which trade the shopman was his agent or 
 servant, a declaration that his master had received the goods might probably have been 
 evidence ; as it might be held within the scope of the shopman's authority to give an 
 answer to an inquiry made by any person interested in gpods deposited with the pawn- 
 broker. But he said this deposit was on an ordinary loan at 'five per cent, out of his lin^ 
 as pawnbroker, a case in respect to which the shopman had no authority. The court 
 recognize Fairlie v. Hastings, cited in the text, as the true and leading authority, an4 
 manifest a great reluctance to open the door for agents' declarations beyond what the 
 cases have already done. Garth v. Howard, 8 Bing. 451. 
 
 It is proper to remark, that the case of Fairlie v. Hastings, as may be seen by the text, 
 was the admission of a special agent, the agent for a single purpose to keep a paper. Had 
 the agency been general, that is, an agency arising from a multitude of instances (15 East, 
 108), we cannot say what the master of the Rolls would have thought of it. Most of the 
 cases above cited make no distinction between the admissions of a general and special 
 agent. But it will be seen by several of them that the powers of a general agent to 
 make admissions, while the agency continues, are put on the same footing as the power 
 of the principal. Sucti are the cases of Barry v. Foyles, State Bank v. Wilson, and Curtis 
 V. Ingham, cited supra ; and such, too, are the cases of Mott v. Kip, 10 John. Rep. 478 ; 
 and Wheeler v. Hambright, 9 Serg. & Rawle, 390, 396, 897, also cited post, note 146 ; 
 while in the City Bank of Baltimore v. Bateman, Westcott v. Bradford, Glasser v. Reno, 
 and Roberts v. Burtis, aupra, the powers of a general agent are ,tied down to admissions 
 which are literally cotemporaneous with the act of agency, like those of a. special agent. 
 
 There is certainly an appearance of incongruity between these sets of cases. In Eng- 
 land the admissions of a general agent concerning the business intrusted to him, has, in 
 several cases, been allowed to be equivalent to the acknowledgment of the principal. 
 Burt V. Palmer, 5 Esp. Bep. 145 ; Palethorp v. Furnish, .3 Esp. Rep. 511, note. 
 
 A remarkable exception to the doctrine of Fairlie v. Hastings was allowed in Greenwood 
 V. Curtis (6 Mass. Rep. .358). The action was on a note payable in slaves on demand, upon 
 the coast of Africa. The agent who made the demand there being dead, his letter was 
 received to prove it. This was placed on the ground that he acted in a country destitute 
 of civil government, without officers qualified to take and certify proofs ; and no cause 
 being then pending, it could not be expected the agent would take with him a cUdimua 
 potettatem. (Where the solvency of a manufacturing company was the principal fact in 
 issue, and it became necessary to show that at the time of a purchase made by the com- 
 pany the agent purchasing the goods knew that the company was insolvent, the admissions 
 and declarations of the agent made to other parties about that time, were admitted in 
 evidence to show that the agent, who was the treasurer of the company and had the 
 general charge of its affairs in that department of its business, knew of the insolvency 
 of the company at the time the purchase was made ; the company being in such a case 
 bound by the admissions and also by the knowledge of its agent. Hunter v, Hudson 
 River Iron & M. Co. 20 Barb. 493. Knowledge of the insolvency Is necessaiy to render 
 the sale void ; 4 Seld. 133 ; and it must appear that the purchaser or his agent was inter- 
 rogated upon the subject, or the purchase will not be regarded as fraudulent. Nichols v. 
 Pinner, 18 N. T, 295, 298 ; 24 N. Y. 139 ; 33 id. 264. The acts and declarations of the 
 agent while acting in the business of hisi agency, bind the principal, 30 Barb. 493, even 
 where the agent acts fraudulently. Farmers' & M. Bank v. Butchers' and Drovers' Bk. 16 
 N. Y. 125. The declarations of a wife, acting as her husband's agent in a business 
 intrusted to her care, bind him Riley y. Suydam, 4 Barb. 333 ; McLean v. Jagger, 13 
 How. Pr. 494 ; Hill & Donio, 66 ; 21 Barb. 439 ; so in respect to the declaratioos of a, 
 carrier's agent, 3 N. Y. 323 ; 8 id. 497. As a general rule, the agent's declarations bind 
 the principal only when they form a part of the rea geata. 17 N. Y. 131 ; 14 N. Y. 370.) 
 
SEC. X.] , JSFoiiH Course of B%mness. ;425 
 
 *513 *But where an agenthas said or -Written anything relative to a trans- 
 '■ action which is past and completed, the question of the admissiMlity 
 of the agent'sf declaration, without calling the agent^ depends on the point 
 whether the making of such a statement was within the scope of the agent's 
 authority. ; Thas, in Fairlie v. Hastings,(l) where the fact sought to-be 
 established was, that a. bond had been executed by the defendant to the 
 plaintiff, which the defendant had got possession of, the master of. the Rolls 
 refused to admit,: as evidence of this fe,ct,thd declaration of the defendamt'S 
 agent, who had been employed to keep, the bond for the plaintiff's benefit, 
 and who, on its being demanded by the plaintiff, informed him that^itihad 
 been delivered to the- defendant. , His Honor there laid down the rule 
 respecting the statements of agents to be, that they are inadmissible, unless 
 made by them either at the time of their; making an agreement , about which 
 they are employed, or in acting within the scope of i their ; authority. . 'But 
 it seems to be a more sample rule with respect, to _ admissions, that they, are 
 only receivable when there was authority to make' them* (2) . 
 
 Warranty of horse by servant. Thus, the declaration of a, servant, 
 *514 employed to sell a horse, is evidence *to charge the master with a 
 
 warranty, if made at the time of sale ; but the servant's admission 
 at any other time, that there had been a warranty, is not receivable. (3) So, 
 the declaratiohs of a pawnbroker's shopman, unconnected Vith the ordinary 
 business of his master, are not admissible against the master. (4) It was 
 said by Tindal, C. J., in this «ase, that if the transaction, out of which the 
 suit arose, had been one in the ordinary trade or business of the pawn- 
 broker, a declaration of the shopman, that his master had received goods, 
 might probably have been evidence against the master, as it might be held 
 within the scope of such agent's authority to give an answeri to such a^ 
 inquiry, made by any person interested in the goods deposited with ,the 
 pawnbroker. But the transaction appeared to have been unconnected with 
 the business of the shop, and there was no evidence to show the agency 
 of . the shopman in such transactions. (5) 
 
 Letter of Agent. In the case of Maester v. Abraham,(6) Lord Kenyon, 
 C. J., refused to admit the letter of an agent (respecting a contract made 
 by him as agent) as evidence of the agreement against the. principal, and 
 
 (1) 10 Ves. 128, referred to by Tindal, C. J., in Gartli v. Howard, 8 Bing; 458, as being 
 the leading case on the subject. 
 
 (2) See Garth v. Howard, 8 Bing. 452 ; Helyear' v. Hawke, S Espt 74. 
 
 (3) Helyear v. Hawke, 5 Esp. 72. See ^eto v. Hague, 5 Esp. 184 ; Allen v. Denstone, H., 
 C. & P. 760. I'J 
 
 (4) Garth v. Howard, 8 Bing. 451. 
 
 (5) Note 142. — Scott v. Crane, 1 Conn. Rep. 255. But the proposition that the agenejr 
 must be proved . before the agent's admission can be received, was taken with some quali- 
 fication in the two following cases. 
 
 In the first it was declared that where the proof of agency is doubtful, it may, with 
 the agent's act or declaration, be submitted to the jury to adopt or reject his act or decla- 
 ration, as they shall find the fact of agency or not. The plaintiff,' to charge the defendant 
 as a party to a receipt given by M., proved by H. that M. had in the same year with th6 
 date of the receipt and the next. year, done business as agent of the defendant, with H. ; 
 and that two years after the receipt, the defendant said M. was liis agent.and did business 
 for him ; and the court charged the jury that if they believed what was sworn by H., 
 they should find against the defendant. Held, that it was wrongly left to the jury ; that 
 it should have been put to them to find the agency or not, instead of inquiring simply 
 whether the testimony was true. Irvine v. Buckaloe, 12 Serg. & Bawle, 35. In the other 
 case, the platotiff wrote two letters to the defendant, 'demanding a debt, which were un- 
 answered. He then wrote to K. as the defendant's agent, who answered the letters, and 
 paid part. Some time after the plaintiff wrote again to K., who promised to pay the resi- 
 due. Lord Tenterden said there was clear evidence that K. was the defendant's agent at 
 one timo, and he put it to the jury on the whole evidence whether he did not continue 
 BO. Roberts V. Gresley, 8 Carr.& Payne, 380. See People v. Parish, 4 Denio, 153. '. 
 
 (6) 1 Esp. 375. 
 
 Vol. I. 64 
 
426 Admissions hy Agmt. [ch. viii. 
 
 ruled that the agent himself ought to be examined. Sir W. Grant, M. R., 
 adverting to this case, (1) said, that if the agreement was contained in the 
 letter, he should have thought it sufficient to prove that the letter was 
 Written by the agent ; but if the letter was offered as proof of the contents 
 of a preexisting agreement, then it was properly rejected. And the Court of 
 Common Pleas determined,' after much argument, in the cases of Kahl 
 
 V. Jansen,(2) and Langhorn v. Allnut,(3) that the letters of an agent 
 *515 abroad *to his principal, containing a narrative of the transaction in 
 
 which he had been employed, were not admissible in evidence 
 against the principal, as the mere representation of the agent. (4) The gen- 
 eral rule on the subject was there fully recognized and confirmed. " When 
 it is proved," said Gibbs, C. J., " that A. is agent to B., whatever A. does, 
 or says, or writes, in the making of a contract as agent of B., is admissible 
 in evidence, because it is part of the contract which he makes for B., and 
 which, therefore, binds him, but it is not admissible as the agent's ac- 
 count of what passed."(5) When the declarations of an agent are admit- 
 
 (1) In Fairlie v. Hastings, 10 Ves. 127: 
 
 (2) 4 Taunt, 565. 
 
 (3) Id. 511 ; S. P., Reyner v. Pearson, 4 Taunt. 663. 
 
 (4) See also Lawrence v. Thatcher. 1 C. & P. 669. See 3 Bosw. 376. 
 
 Note 143.^The defendant, as alleged, authorized his agent C. to guaranty in the 
 defendant's name two promissory notes made by Q. to the plaintiffs, for premiums of 
 insurance. Held, that letters which passed between the defendant and C, the defendant 
 and G., and even between G. and C, in respect to the cause, consideration, and fact of the 
 authority to guaranty, were admissible to prove C.'s authority. The court say it is the 
 transaction itself; the res geatm. New England Marine Ins. Co. v. De Wolf, 8 Pick. 56, 62. 
 
 Two letters of the defendant to the plaintiff respecting an arbitration pending between 
 them, said (one of them) : " Hancock is in possession of my sentiments, and will attend." 
 (Another) : " I have written to my friend, Mr. Hancock, on the same subject, and refer you 
 to him thereon." Held, that this proved Hancock's authority to speak on the subject of 
 the arbitration, and before the arbitrators, for the defendant ; and his admissions there 
 were received as evidence against the defendant. Hood v. Reeve, 3 Carr. & Payne, 532 ; 3 
 Bosw. 147. 
 
 In assumpsit the defendant proved that the plaintiff admitted that his wife had a power 
 of attorney from him to settle or dispose of the demand. Held, suflScient proof of an 
 agency in the wife. And it was said, though the declaration had been of a written 
 power, it was admissible, without notice to produce it. But of this last quere. Curtis v. 
 Ingham, 2 Verm. Rep- 287, 289. 
 
 A party appeared in court to defend another who had trespassed on lands for the party's 
 benefit. Held, that he thus made the trespasser his agent, adopted his acts, and evidence 
 against the trespasser was thus made evidence against him as principal. Thompson v. 
 Chauveau, 7 Mart. Lou. Rep. (N. S.) 331, 333. By sanctioning his conduct, the principal 
 adopts the act. Thurman v. Wells, 18 Barb. N. Y. 500 ; 12 Id. 27 ; 10 Geo. 362. A sin- 
 gular strictness seems to prevail in Pennsylvania as to the competency of an agent to 
 prove his authority in certain cases. It has there been repeatedly decided that an agent 
 is incompetent to prove his own authority to sell lands, even if his written power be lost ; 
 but the power must be proved by other witnesses, and then he may be allowed to show 
 how he had executed his instructions. Nicholson's Lessee v. Mifflin, 2 Dall. 248 ; 3 Yeates, 
 38, and the cases there cited; Meredith's Lessee v. Macoss, 1 Yeates, 200. But the mere 
 loss of the power may be shown by the agent, though he is inadmissible to prove the 
 contents. Meredith's Lessee v. Macoss, 1 Yeates, 200. And a factor may, in some 
 instances, at least, prove his own authority. Said in Right's Lessee v. Mifflin', 2 Yeates, 
 88. See the later decision : Chidsey v. Porter, 21 Penn. (9 Harris) 890 ; McCuUoch v 
 McKee, 16 Penn. State R. 289. 
 
 (5) 4 Taunt. 619. 
 
 Note 144.— Neither the declarations of a man nor his acts can be given in evidence to 
 prove that he is the agent of another. Scott v. Crano. 1 Conn. Rep. 255 ; Plumsted's Lessee 
 V. Rudebagh, 1 Yeates, 502, 505 ; James's Lessee v. Stookey, 1 Wash. C. C. Rep. 330. In 
 an action against a constable for not delivering up goods he had attached* to satisfy the 
 plaintiff's execution, he offered to show that he had delivered them to H., who took 
 the direction of the suit. The court admitted that acts or concessions of an' agent are 
 binding on the principal ; but said, to let in proot of them, the agency must be first 
 proved, which was not done here. Scott v. Crane, 1 Conn. Rep, 2.'J5. But in order to 
 prove the authority of an agent in a particular transaction, it is competent for the party 
 under certain limitations, to give evidence of his conduct, dealings and declarations in 
 
8Ka X.] Letter of AgerU. 427 
 
 *516 ted in evidence, *they are received, not for the purpose of establish- 
 ing the truth of the fact stated, but as representations by which the 
 principal is as much bound as if he had made them himself, and which are 
 equally binding, whether the fact stated be true or false. 
 
 But where an agent's letters have been adopted or acted upon by the 
 principal, they become admissible against him, for the principal's conduct 
 raises the inference that the letters were written within the. scope of the 
 agent's authority. (1) 
 
 Authority of agent. The authority of an agent to make admissions, 
 may be either express or implied from circumstances. (2) ' Thus, if the 
 
 other cotemporaneous affairs of the principal, from which a general agency might bo 
 inferred. Cobb v. Lunt, 4 G.reenh 503. 
 
 (The authority, of the president of a navigation or railroad company to draw drafts may 
 be proved by showing tliat he had repeatedly, as well after as before he drew the draft in 
 question, drawn similar bills and notes which had been paid, and that the sums thus 
 expended entered into the accounts of the corporation which were before its managers 
 for years without objection. Olcott v. Tioga R. R. Co. 27 N. T. 546. Acquiescence in th« 
 exercise of such an agency is as effectual as an express letter of attorney. Bantt of U. S. 
 V. Dandridge, 12 Wheat. 64 ; Hoyt v. Thompson's Ex'r 19 N. Y. 208, 319. The fact that 
 the clerk of a firm of common carriers on the canal who also buy and sell grain on their 
 own account, had sometimes made out and signed the name of the firm to papers relating 
 to the shipment of the property of others, does not authorize the court or jury to infer 
 that he was authorized to cpnvey the property of the firm or contract for its shipment to 
 New York. Dows v. Perrin, 16 N. Y. 325. The authority may be inferred, where the 
 assumed agent has usually done things of the same general character and effect ; thus, if 
 he has been accustomed to draw and indorse his principal's commercial paper, his power 
 to accept may be inferred. Medbury v.' N. Y. & Erie R. K. C!o. 26 Barb. 664 ; 1 Hill, 501 ; 
 17 Barb. 171.) 
 
 In assumpsit for a merchant's account, to show payment, the defendant proved that L. 
 was a brother-in-law of one of tlie plaintiffs, resided near him in the same city, was often 
 at the plaintiff's store, and was in habits of intimacy with them ; and then offered his 
 receipt for money on their account, which the court below received. Held erroneous ; for 
 the above facts did not go to prove an agency. Worman v. Boyer, 14 Serg. & Rawle, 212. 
 
 The teller or clerk in a bank, making an entry in the bank-book of a customer, is the 
 agent of the bank, not of the customer. Mech. & Farm. Bank v. Smith, 19 John. Rep. 
 115. The acts of the cashier of a bank, done in the ordinary course of business usually 
 confided to such an officer, may well be deemed prima fade evidence that they fell within 
 the scope of his duty. Said by Story, J., in Fleckner v. U. S. Bank, 8 Wheat. 357. In 
 an action for striking the defendant's carriage against the plaintiff's cart, it was held that 
 what any one (the ladies for instance) in the defendant's carriage answered, on inquiry as 
 to the address of the owner, was admissible against him ; but not a statement by them 
 that any damage done would be paid for. Beamon v. Ellice, 4 Carr. & Payne, 585. An 
 alteration having been made in the plaintiff's pass-book, by some person at his bankers', 
 he inquired there why it was done, and received an answer from a person acting in tlie 
 banking-house as a clerk ; and he offered this in evidence against the bankers. Held 
 admissible. Price v. Marsh, 1 Carr. & Payne, 60. And md. Barrett v. Deere, 1 Mood. & 
 Malk. 200 ; Wilmot v. Smith, 1 Mood. & Malk. 238. In a case against a corporation for 
 injuring the plaintiff's house by negligently pulling down their own, a letter written 
 to the plaintiff by the defendants' surveyor, who liad the management of their buildings, 
 is to be presumed to have been written by him, in that capacity, and is therefore evidence 
 against the corporation. Peyton v. The Governor of St. Thomas' Hospital, 3 Carr. & 
 Payne, 363. So, the possession of a merchant's note, by his clerk, the note being drawn 
 in the usual form of a note for discount at the bank, is prima fade evidence of the clerk's 
 authority to procure it to be indorsed and discounted. Sliip Portland v. Lewis, 2 Serg. & 
 Bawle, 197, 203. (See, also. Turner v. Yates, 16 How. U. S. 14 ; Thurman v. Wells, 18 
 Barb. 500 ; Bliss v. Cutler, 19 Id. 9 ; Owlsey v. Woolhofter, 14 Geo. 124. 
 
 The declarations or representations of the agent when not expressly authorized by the 
 
 Erincipal, must, in order to bind him, be within the scope of his agency. New York Life 
 as. & Trust Co. v. Beebe, 3 Selden R. 364 ; Olding v. Smith, 11 Eng. Law & Eq. 424 ; 
 Very v. Levy, 13 How. U. S. 345. 
 
 The agent is a competent witness to prove his authority, given to him by parol, and 
 that he acted within its scope. Downer v. Button, 6 Foster (N. H.), 338. 
 (1) Coates V. Bainbridge, 5 Bing. 58. 
 (3) See l-ucas v. Godwin, 3 N. C. 737. 
 
 The authority may be shown by circumstances. Dewz v. Greene, 16 Barb. 72 ; 14 Geo. 
 124. 
 
428 A3m,isiions by Agent. [chI Tri£ 
 
 *6I7 attorney for , one party has *made certain propositions to another 
 ■: upon matters in difference between them,' Such propositions will be 
 
 evidence against the attorney's client, without further proof of 'his authority 
 to make them than tW fact that' he was his attorney! (!)■ So, if 'one party 
 refers another on a disputed fact to a third perSon as authorized to answer 
 for him, he i^' bound by what his referee answers upon the occasion, as much 
 as if the answers had been made by himself. ■ Fbt example, in ati actioii for 
 goods sold and delivered, (2) where it appeared at the' trial, tHat in a cori' 
 yersation between the, plaintiff anddef^a^ant, the former asserted that he 
 ha;d delivered the goods by one C,., and' th^4e;fefl<jlant, replied; "If C. -xi^ 
 say he did deliver the goods, I will pay for them," ..tte plaintiff was allowed 
 to give, in evidence C.'s. answer respectiag the matter referred to him. i '; ■ 
 
 It is upon this latter principle that the decision of arbitrators, whether 
 professional '01' not, are binding upon the patsies. And, in like maTiher, 
 where two parties had agreed, to be, bound, by the opinion of a. counsel upon 
 the construction of an act of Parliament, his opinion was ield.tobe conclu- 
 sive between them. (3). ,. 
 
 ■, In like manner. Where a dispute had arisen in a mining district, and it 
 was proved tliat the defendant had said that, if a miners' jury were called, 
 and they should find a particular fact, he would pay for certain damage, and 
 the jury did find such fact, it was. held that.this finding of the jury, coupled 
 •with the declaration, was evidence against him' in an action' to recover the 
 amount of the damages. (4) . ' 
 
 A husband will riot in general be bound by any admissions., made by his 
 wife, even where he is suing Jwre wai^m/ as where he; is suixig for wages 
 earned by her, even her written receipt will not be evidence against him -,(5!) 
 so, in an action by husband and wife for a debt due to the latter dutn sola. 
 any admission made , by her after marriage is inadmissible ., against thja 
 husband."(6) ' 
 
 (i) Gainsford v. Gframmar, 2 Camp. 9. See also Marshall v. Cliff, 4 Camp. 133. In the 
 former cage, Lord EIlenlDorough, C. J., refused to permit the attorney himself to -give eyi- 
 dence of what he had prdposed to the adverse party, hut allowed it to be proved by a 
 Witness who had been present. But in GrifiSth v. Davis (5 B. & Ad,), it was held, that the 
 'attorney for one party was a competent witness to prov? a propositipa made in his presence 
 ■fay his client to the adyei'ae party ; and Park, J.; and Patteson, J., disseriteii from Lor^ 
 EllenboTough's ruling as to the exclusion of the attorney's testimony. 
 
 (3) DanifeU v. Pitt, 1 Camp. 366, n. ; S. C, 6 Esp. 74. And seq Lloyd v. Willan. 1 Esp. 
 178 ; Williams v. Innes, 1 Camp. 364 ; Brocli v. Kent, Id. 366, n. ; Burt v. Palmer, 5 
 Esp. 14.5 ; Garnet V. Ball, 3 Stark, R. 160 ; Bretlon V. Prettiman, Sir T. Baym. 153 ; Hooql 
 V. Reevii, 3 C. &"?. 533 ; Gardner v. Moult.'lO Ad. & Ell. 404 ; 3 Bosw, 147 ; ? Hill, 502. 
 
 (3) Price v. HoUis, 1 M. & S. 105. See also Downs v. Cooper, 3 Q, B. 356. 
 
 (4) Sybray v. White, 1 M. & W. 435. Under building Contracts, which provide that the 
 work sliAll be done under the supervision and to the satisfaction pf an architept named 
 therein, or that thb payments thereon shall be made as the work progresses, on his cer- 
 tificate that so much of the work has been done, or that the final payment shall be made 
 ■when the work is completed and certified to by the architect, the agreement makes tile 
 certificate pOnclusiye bfetween the parties ,■ Smith v. Brady, 17 N. Y. 173 ; Butler v. Tucker, 
 34 Wend. 447 ; not so where the architect acts in bad faith and unreasonably refuses hip 
 certificate. Thomas v. Pleury, 36 N. Y. 36 ; U. States v. Bobeson, 9 Peters, 319. Honestly 
 made, the certificate is to \>e taken for what it fairly imports., Stewart y. Kcteltas, 9 
 Bosw. 361. Where an engineer, und^r a railroad contract, acts as the agent of the roiwJ, 
 and all iiaeasurements and calciilations are to be macie,, and the quantity and kind Of work 
 determined by hiitt, whose decision is final thereon, the contractor ia entitled to notice and 
 the opportunity to be present when the measurements are made ; he is not bound by .e^c 
 parte measnrements. McMahon v. N. Y. & Erie B. B. Ca 30 N. Y. 463. ; 
 
 (5) Hall V. Itill, -2 Str.' 1094 ; Alban v. Pri'tchett, 6 T.' E. 680 ; , Dem. v. White, 7 f. E. It?. 
 
 (6) Kelly v. Small, 3 Esp. 716. , , , 
 
 See James' Lessee v. Gordon, 1 Wash. C. C. 333, 835 ; Furikhouser v. Pogue, 8 Eng. (13 
 Ark.) 39.5 J McKay v. TreMwell, 8 Texas, 176 ■ Willis v. Snelling, 6 Bich. 380 i Cpne v. 
 Gough, 4 Md. 316 ; Lasselle v. Brown, 8 Blackf. 331. Her acts as his agent may be shown, 
 and her decl|arations acconvpanying thom (Murphy v, Hubert, 16 Penn. State B. 50 ; Id. 
 19S): and her adwissions in regatd to her separate estate. HoUmgahead v. Allen, 17 
 Id. 270. 
 
ssa X.] Authority of Agmt. 429 
 
 *51S,, *Bnt suoii.admjssjqn8 are .qvi4CT(Ce;,»ft!6E her death; in an action in 
 which the husban^i sues oris sued. as her peirspnal repreSentative.(l) 
 por. the party's character, as : husband, has nothing' (to do with such an 
 action ; and a wifCj like any other, per spDj, may Mnd hfer executor oradmiia*^ 
 istratpr. ; 
 
 .„. A wife's admissions will also be binding on the husband, if an authoritjf 
 to make them, can .be prpyed or inferred Thus, where goods had been 
 frfrnished for the 'jyife's accommodation, while. her husband ocoasionailly 
 Tisited. her, it was held that she might be riegarded as her husband's ageiit 
 respecting them; and that a letter from hei', written within six years ftom 
 the supply • of the ; gpods, containing an admigsijon,. that, the goods .were 
 unpaid for, was evidence, (before Lord Tenterden's Aot)tO;take the case 
 out, of the Statute of Limitatioaa. (2) The authority of a wife to, bind her 
 liusband by her admissions, seems' to ihave, been inferred in a more unob- 
 jectionable manner in another case,(3) where it was proved that the wife 
 managed her husband's business,, ajud.gener.ally gave orders and paid for 
 
 goods. ,; „, . 
 
 .-These cases are nientioped as illustrating the -principle of the rule in 
 question ;. but since: Lord Tenterden's, Act, (4) -that principle is not appli' 
 cable to the same state of. factSjibr the first section, of that .statute enacts 
 Iteit no acknowledgment or promise shall be sufficient to. take a easeout of 
 jthe Statute of Limitations, unless it be in writing, " and signed by, the 
 party chargeable thejreby;" nnd, therefore, an acknowledgment of a debt 
 contained in a letter, written by the wife of a defendajit in his name, and 
 even at his request, will now be insufficient, because the statute gives no 
 authority to an agent to inake the ajcknowledgment, (5) 
 
 The authority of a wife to bind her husband generally by jiidmissions^ 
 may be -inferred from- -the- cLreumstance that the business to -which the 
 admissions relate was usually condueted by her. Thus, in a case befSre 
 Pratt, C. J., (6) his Lordship allowed that the -tvife's declaration, that she 
 
 (1) Hnmphreya v. Boyce, 1 Mp! & E. 140. 
 
 (2) Gregory v, Parker, 1 Camp. 395. It seems to be a strong decision, tliat the •wife 
 had an a"atliority to make an admission yeiars after the time when the goods were fur- 
 bished. Where" the husband and wife do not live together and he supplies her with 
 iiecessaries suitable to her condition, the party who sells to her goods on credit after he 
 has been expressly forbidden by the husband to do so, cannot recover for the same in a^ 
 action against him. If the. husband professes to provide for her, it will be incumbent on 
 the party furnishing her supplies after he has been forbidden to do so, to show affirmar 
 tively-'tthd clearly that the' husband did not supply her with necessaries suitable to her 
 condition. Mott. v. Comstock, 8 Wend. 544; Theriott v.' Bagioli, 9 Bosw. 5T8. If the 
 husb^d live separately from his family he i& bound to furnish them with necessaries 
 suitable to their condition, and' his omission to do so is said to furnish thein with a gene- 
 ral credit to that extent. But where he makes arrangements with merchants and others 
 keeping stores and groceries fof their suitable supply, forbidding others to give tliem 
 cremt, he is not liable for necessaries to a person' thus forbidden. Kimball v. Keyes, \\ 
 Wend. 33. In the action against hini for necessaries supplied to her while living separate 
 from him, the plaintiff must show affirmatively that the separation took place in conse» 
 tiuence of his miscondtict. Blowers v. Sturtevant, 4 Denio, 46. In a late action against 
 a man of small means for goods sold to defendant's wife, and children, there being no 
 separation and no proof to show that he did not supply them, it was held in the Fourth 
 District thai the plaintiff could not recover for the goods sold to them, after notice froiri 
 the dfefendant not to sell them on credit. Keller v. PhUips, 40 Barb. 390. See vol. 3, p 
 '403, 404. . ' 
 
 ■ (3) Palethdrp v. Furnish, S Esp^ 511, n., S. P ; Anderson v. Saunderson, 2 Stark. B. 204 : 
 S. C, Holt, 591. And see Clifford v. Burton, 1 Bing. 199 ; Emerson v. Blonden, 1 Esp. 
 141 ; Petty v. Anderson, 3 Bing. 170 ; BarloW v. Bishop, 1 East, 433 ; Cotes v. Davis, 1 
 Camp. 485 ; Barker v. Ray, 3 Bt^s, Ch. C. 70 ; Palmer v. Sells, '8 N. & M. 433 ; BMkex vl 
 ykughan, 4 Jur. 333, Exch. 
 ' See notes above. 
 
 (4) 9 Geo. IV. 0. 14. 
 
 (5) Hyde v. Johnson, 3 N. C. 766. 
 
 ''(6) Anon,, Stra. 527 ; B, N. P. 387. See also Palethorp v. Pumlsh, vt supra. 
 
430 Attthority of Wife. [ch. vm. 
 
 agreed to pay 4g. per week for nursing a child, was good evidence to 
 cnarge the husband, as being a matter usually transacted by women. So, 
 in an action for the education of a childj who had been placed with 
 *619 the *plaintiff by the defendant's wife (who was aunt to the child)i 
 evidence was held to be admissible to show that the wife was in the 
 habit of ordering domestic articles which were paid for by the defendant — 
 it being evidence, though slender, to establish her agency.(l) 
 
 But a wife cannot bind her husband by admissions unless' they fall within 
 the scope of the authority which she may reasonably be presumed to have 
 derived from him. (2) Thus, where a wife, in her husband's absience, carried 
 on the business of a shop, and by his authority attended to all the receipts 
 and payments; still, a statement made by her to her husband'^ landlord, 
 that she would pay the rent on a future day, and admitting its amount^ 
 was held not to be evidence against the husband, of the terms of the ten- 
 ancy.(3) 
 
 In the ease of Fabrigas v, Mostyn,(4) a point arose which may 'serve aa 
 another example to illustrate the rule above laid down. A witness, who 
 had been etnpioyed by the defendant to convey certain proposals to the 
 plaintiff, explained them to him by an interpreter, from whom also he 
 received the answer. The question was, whether the words of the inter- 
 preter could be given in evidence by the witness, as the answer of the plaintitf, 
 or whether the interpreter himself ought to be called, as the witness 
 understood neither the questions put to the plaintiff nor the answer made 
 by him. Gould, J., ruled that the evidence of the witness was clearly 
 admissible and sufficient. Here the interpreter was the accredited agent of 
 the parties, acting within the scope of his authority, and in the exebution 
 of his agency. (5) 
 
 (1) M'George v. Egan, Arn. Rep. C. P. 462; S. C.< 5 N. C. 196. 
 
 (2) By Alderson, B., U M. & W. 304 ; Logue v. Link, 4 E. D. Smith 63. 
 
 (3) Meredith v. Footmer, 11 M. & W. 203. (A purchase by the wife on her own credit, 
 is held prima facie to vest tlie title to the thing purchased in her husband. Glann v. 
 Younglove, 87 Barb. 480 ; Lovett v. Robinson, 7 How. Pr. 105. In an action in the nature 
 of rej)levin brought by a married Woman, for taking cattle claimed by her as her sepatete 
 property; the plaintiff was allowed to testify that her husband was acting as her agent in 
 the mknagement of the farm on which tliey lived. The case a.lso shows the wife of an 
 insolvent may acquire the title to laud on credit, if the vendor will take the risk. Enapp 
 V. Smith, 27 N. Y. 277 ; and to the latter point : Darley v. Callaghan, 16 N. Y. 72. In the 
 recent case of Buckley v. Wells, th6 court held that a married woman may manage her 
 separate property through the agency of her husband, and carry on a mercantile business 
 in his name as agent. " E. Smith, agent ;" 33 N. Y. 518. 
 
 (4) 30 How. St. Tr. 122. 
 
 (5) It was said by Lord Denman, C. J., in R. v. Adderbury, East (Inhabitants) (5 Q. B. 
 187, 196). that if the surveyor of highways to a township has advisedly made statements 
 as to the liability and practice of the township in respect of repairs, such statements will 
 be admissible against the inliabitants of the township, as being made by their authorized 
 official agent, and not merely upon the ground that the surveyor was an inhabitant ; but 
 it may perhaps be questionable, if this dictum rests upon sound principle, as a surveyor of 
 highways can' ha,rdly be considered an official agent on a question of liability ;' unless 
 indeed he had, been specially referred to as such. 
 
 Note 145 — See per Marby, J., in Benjamin v. Smith, 4 Wend. 334. And so the defend- 
 ant may make the plaintiff, himself his agent in the same way ; for where the plaintiff 
 claimed a sum of money of the defendant, who denied it, but said if the plaintiff would 
 Swear to the correctness of the claim he would •p».y it, and the plaintiff made affidavit 
 accordingly ; held a valid promise, and that the defendant was concluded »nd could not 
 show the affidavit untrue. Brooks v Ball. 18 John! Rep. 337 ; Delesline v. Greenland, 1 
 Bay, 458, S. P. (In Hurd v. Pendrigh (3 Hill 503), an action for the value of goods lost 
 by a common cnrrier, the defendant, pending the suit, agreed that if yJaintiff would 
 Bwear to a bill of. the articles lost he would pay for them, and the affidavit being made 
 was held admissible in connection with the defendant's agreement ; that taking the whole 
 together it amounted to an admission that the plaintiff was entitled to recover the 
 value of the goods sworn to. So where a party refers to his agent, the conversation of 
 the latter may be given in evidence on the matter in controversy. 8 Bosw. 147 ; and in 
 Winchell v. Hicks, 18 N. Y. R. 558, where the sureties on a note being called upon for 
 
SEC. X.] Admissions by Vnder-Sheriff'. 431 
 
 *520 *Evidence of facts, by tlie admissions of agents, is receivaljle in 
 criminal as well as in civil cases. Thus, on the impeachment of Lord 
 Melville,(l) the House of Lords decided that a receipt, given in the regular 
 and official form by Mr. Douglas (who, as it was proved, had been appointed 
 by Lord Melville to be his attorney, to transact the business of his oiRce of 
 treasurer of the navy, and to receive all necessary sums of money, and sign 
 receipts for the same), was admissible as evidence against Lord Melville to 
 establish this single fact : that a person appointed by him, as his paymaster, 
 did receive from the Exchequer a certam sum of money, in the ordinary 
 course of business. " The first step in the proof of the charge," said the 
 Lord Chancellor, " must advance by evidence applicable alike to civil and 
 to criminal cases; for a fact must be established by th« same evidence, 
 whether it is to be followed by a civil or criminal consequence ; but it is 
 totally a diiferent question, in the consideration of criminal justice as dis- 
 tinguished from civil, how the noble person now on trial may be affected 
 by the fact when so established. The receipt by the paymaster would, in 
 itself, involve him civilly, but could, by no possibility, convict him of a 
 crime." 
 
 It may be observed, finally, that declarations made or instructions given 
 by a principal to his agent, are not admissible in evidence for the former, 
 
 payment, referred the holder to the principal, who being informed of such reference, 
 made a payment tliereon, it was lield that this was sufiBcient to take the case out of the 
 statute of limitations as against the sureties. The same rule was held in Munro v. Potter 
 (34 Barb. 358) where one of two joint and several makers of a note made a payment 
 therein at the request of the other. But the evidence of a witness called and sworn in 
 a former suit, cannot be proved as an admission by the party calling him. Sheridan v. 
 Smith, 2 Hill 538.) 
 
 T. in a letter to N. uses expressions supposed to amount to a challenge to fight a duel, 
 and by postscript refers N. to H. (the bearer of the letter), if any further arrangements 
 should be necessary. On an indictment against T., held that N. might give testimony of 
 the conversation between H. (the bearer) and himself against the defendant. State v. 
 Taylor, 1 Const. Rep. S. C 107, 108. 
 
 The declarations of a third person, referred to and adopted by a party for one purpose, 
 are not evidence against him for another. Thus, where the defendant said he would pay 
 the interest'of property to Mrs. D., the plaintiff, which her father had left in the defend- 
 ant's hands for her use, provided the father so directed ; held, that this did not authorize 
 evidence of the father's declaration that he had placed the property in the defendant's 
 hands for the support of Mrs. D. Duval and Wife v. Covenhoven, 4 Wend. Rep. 561, 
 564. And where an obligation is to pay A. to the saticfaction of B.; in a suit on the obli- 
 gation the declarations of dissatisfaction by B. are not admissible. B. is n, competent 
 witness to the point, and should be examined. M'CuUough v. Montgomery, 7 Serg. & 
 Rawle, 17. (Where the principal with knowledge of what has been done by an assumed 
 agen*, consents to be bound by it, the act becomes that of the , principal. Keeler v. 
 Salisbury.- 33 N. T. 648. As between the principal and his agent, a broker buying stocks 
 on his account, the true authority and agreement between them may be shown, even 
 where the principal has given written instructions to sell at a g^ven price, the whole 
 arrangement going to sliow that such instructions were only to be acted upon in case 
 the stocks fell below the price named. Clarke v. Meigs, 10 Bosw. 337. In cases like 
 this, where the broker is to advance a portion of the purchase-money and hold the stock 
 as security, he has a right to take the title in his own name. Horton v. Morgan, 19 N. 
 Y. 170, He fulfills his contract if he keeps the stock under his control ; but the 
 broker cannot recover the difFerence, »". e., the fall in the price, where he does not in fact 
 make the purchase pursuant to order. Voris v. McCredy, 16 How. Pr. 87. Where the 
 instructions to a factor intrusts to him a discretion in the sale of flour after the happening 
 of a certain event, all that can be required of him is that he act in good faith and with' 
 reasonable prudence ; thus acting, he is not answerable for an error of judgment. Mil- 
 bank v. Dennistoun, 21 N. Y. 888. It is incumbent upon the plaintiff to show a want of 
 good faith in the sale. S. C, 10 Bosw. 382.) 
 
 Deeds between other parties become evidence, when referred to in a deed between the 
 parties to the suit. Blair v. Hum, 2 Rawle, 104. 
 
 Where one agrees to abide by the decision of another upon a disputed fact, who accord- 
 ingly decides, this is not conclusive, but is evidence for the jury. Craig v. Craig, 8 Bawie 
 472. 
 
 (1) 29 How. St. Tr. 746, 704. 
 
432 Admiisidns^hy Under' Sheriff, [ca vin. 
 
 Tirliere it is sought' to affect a third party, ilnle^s it can he ahcvrn that such 
 declarations or instructions were communicated to that party. Thus, where 
 the plaintiff, through ' his agent, contracted with Kj for the sale of goods, 
 And the question was, whether theyi were sold on the credit of K. or of the 
 defendants, it was held that a letter of instructions from the plaintiff to his 
 agent, on, the subject of the sale, not communicated to the defendants, was 
 not admissible for the plaintiff. (1) 
 
 4. Of admissions' by nilder-sheriff, bailiffj attorney, counsel, &c. 
 \ It has been seen that the admissions of an under-sheriff are admissible' iit 
 evidence against- the sheriff, wjiere they tend to chaTge himself as being the. 
 real party in the cause, as in an action for an escape. (2) But where they 
 'have not that tendency, they are inadmi^ible. Thus, in an action; 
 ?521 ;.*against the sheriff for' taking illegal poundage, deolapations of the 
 under-sheriff, after he was out of office, were iheld not to be admissi- 
 ble to prove that the bailiff, charged with having cominrtted the extortion, 
 was the sheriff's authorized agent. (3) i 
 
 (1) Smethurst v. Taylor, 12 M. & W. 545. Where the defendant's answer interppses a 
 counter-claim, or Bets qp a ratification of an act performed without authority, and the 
 court or referee finds the facts as set forth in the complaint, but makes no finding on 
 the matters set up in the answer, the court, oh review, will Jiresume that he found 
 against the daitns- thus interposed by way of defense. Grant v. Morse, 23 N. Y. 323; 
 Clarke v. Acosta, 9 Bosw. 158. , So in a case of recoupment ; the defendant must make 
 out his case affirmatively. Field v. Banker, 9 Bosw.. 467. Where a party, with whom 
 others are interested in building steamships, signs a contract in his own name, and makes 
 payments on it as if it we're his individual agreement, a referee will be justified in finding 
 against him on the contract on the ground that exclusive credit was given to him. Secor v. 
 Law, 9 Bpsw. 164, The omission of others named in the contract to sign it does not show 
 that he did not intend to be individually bound unless the others signed. Id. ; Parker v, 
 Bradley, 3 Hill, 584. So if parties enter into an individuaL contract under, seal, they are 
 personally bound, though the contract be afterwards adopted by the corporation foir which 
 tljey acted. Lincoln v. Crandell, 21 Wend. 101. 
 ',(2) ^SMjora, p. 488,, , 
 
 (3) Snowball v. Goodricke, 4 B. & Ad. 541. This decision impugns the general doctrine 
 of Lord Kenyon, C. ,J., in Drake v.,Sykes (7 T. R. 117), as to the sheriff being identified 
 ■with the under-sheriff to all intents. 
 
 Note 146. — In an action against the sheriff for a false return, admissions by his deputy 
 were allowed as evidence against him ; viz : a -letter from him to the plaintiff's attorney 
 admitting that he received an execution sent to him. And the court put this on the 
 general ^ound tha.t the deputy who acts, is the real defendant, and answerable over to 
 the sheriff. Tyler v. XTlmer, 12, Mass. Rep. 163 ; per Marcy, J., in Benjamin v. Smith, 4 
 ■Wend. 334, S. P. In Hecker v. Jarret (3 Bin. 404), the admissions of the deputy in respect' 
 to the legality of an arrest made-by him, on which it was sought to charge the sheriff, 
 these admissions being made after the deputy had taken the prisoner to jail, were rejected 
 by Brackenridgel J,, at Nisi Prius ; and on motion for a new trial, the cause went off on 
 Pther grounds. In Mott v. Kip (10 John. Sep. 478), the Supreme Court of New York 
 held, that the admissions of the deputy to the plaintiff's attorney in respect to the busi- 
 ness in progress, are admissible to affect the sheriff if made while the process in question 
 is in the deputy's hands and in a course of execution. The admissions are then to be 
 taken as part of the transaction, as the acts of the deputy, who is to be regarded as the 
 sheriff's agent. In this case, the admission was that the deputy had suffered a voluntary 
 escape.^ On the same ground, an admission by the deputy, e. g. of an escape, though the 
 Sidmission be made after the return day of the writ, e. g. a ca. sa. if while it is in nis 
 hands, is admissible as evidence against the sheriff. Wheeler v. Hambright, 9 Serg. & 
 fiawle, 390 ; (Stewart v. Wells, 6 Barb. 79. And it is held that the sheriff, who has been 
 indemnified by the plaintiff for making a levy, acts for and in behalf of the plaintiff in the 
 executiori, who is the substantial party in interest, in the defense of an action against 
 the sheriff for the property levied on. i&owland v; Willetts, S Selden, 170. . If the plain- 
 tiffin the execution gives the deputy special instructions to act in a particular manner, as 
 to sell the property taken on credit, he thereby makes tlio deputy his agent so far as 
 his instructions ,wl(ich are acted upon imply a deimrture from the line of his legal duty. 
 See Gorham v. Gale, 6 Cowen, 467 ; 7 Id. 789 ; Cprning v. Southland, Sheriff, &c., 8 Hill, 
 522 ; 8 Selden, 458. 
 
 The return to an execution, although made by the deputy in the sheriff's name, is the act 
 of the sheriff, and when the question comes up directly between one of the parties to the 
 execution and the sheriff, the latter is not permitted to gainsay it, or impeach the truth of 
 
sKc; Xi] J)eclarationsac6(fmpan^in.ff Official Acts. 433 
 
 Declarations accompanying official acts. Where, indeed, the declara- 
 tions of the under-sheriff accompany official acts, they are in the nature of 
 original evidence, (1) though the admissions of a bailiff or sheriff's officer, 
 where the authority is limited to the particular duties specified in his war- ' 
 
 rant, are not evidence against the sheriff. (2) What a bailiff says 
 *522 whilst he has a party in custody, concerning the *circumstances of 
 
 the arrest, may be admissible against the sheriff as part of the act for 
 which he is responsible. (3) And it has been held that the relation of • 
 sheriff and officer continues whilst the writ is in course of execution, and- 
 therefore that the sheriff may be affected by the officer's declarations after 
 the return of a, ^fieri facias, and befoi-e a warrant is made for sale, «o long as 
 the goods are in the hands of the officer. (4) In such cases the declarations 
 of the officer are properly original evidence, and not in the nature of hear- ■ 
 say or admission. It has been held, also,(5) that what was said by a 
 bajliffi when asked by the plaintiff's attorney, before the return of the writ, 
 why he did not execute it, was evidence against the sheriff. The action' 
 was for a false return of non est inventus. Lord Ellenborough, C. J., said 
 that the conversation must be considered as part of the act touching the 
 execution of the writ. And he observed, that where a thing is carried on 
 by one as a quasi principal, what he says in the course of the transaction, 
 has been held, on great consideration, to be evidence against those he rep- 
 resents. 1 
 
 It has been seen that, where an infant sues by his guardian, the declara- 
 tions of the guardian are not admissible against the infant. (6) 
 
 £■)/ Attorney. With respect to admissions made by attorneys, they are 
 considered as having an implied • authority to make any admission for the 
 purpose of obviating the necessity of proving any fact upon a trial, as 
 
 the return. Sheldon v. Payne, 3 Selden, 452 ; Townsend v. Olin, 5 Wend. 207 ; Gardner 
 V. Hosmer, 6 Mass. 327 ; Haynes v. Small, 22 Mainej 14 ; Barrett y. Copeland, 18 Vt. 69 ; 
 Paxton V. Steckel, 2 Burr. 93.) 
 
 (1) Yabsley v. Noble, 1 Ld. Raym. 190. See Kempland v. Macauley, Peake 63 ; where 
 it was considered that the circumstance of the bailiff giving a bond of indemnity (which 
 was relied on in Yabsley v. Noble, with regard to the under-sherifl^, did not make a bailiff's 
 admission receivable. See 6 Barb 79. 
 
 (3) Drake v. Sykes, 7 T. B. 117. It was said by Lord Ellenborough, C. J. in North v. 
 Miles (1 Camp. 389), that a bailiff's general conversation, with an indifferent person is not 
 evidence against the sheriff. The bailiff's authority must be proved in every particular 
 case. Id. See Baker v. Binin^er, 1'4 N. T. 270. 
 
 (3) Bowsher v. Cally, 1 Camp. 391,' n. On the subject of the proof of the bailiff's' 
 authority, upon which there have been many conflicting decisions, it has been held 
 sufficient to prove an examinedi copy of the writ on which the bailiff 's name was indorsed, 
 sttid that a person of that name actually executed the writ, and that the course of the 
 sheriff's office was that the name of the baliff to whom the warrant was granted, was 
 usually indorsed on the writ. Scott v. Marshall, 2 C. & J. 288. 
 
 (4) Jacobs V. Humphrey, 2 C. & M. 413. 
 
 (5) North V. Miles. I Camp. 389. 
 
 (6) Note 147. — Eccleston v. Petty (Carth. 79), is' also reported in 3 Mod; 258, by the 
 title of Eccleston v. Spoke, where thfe same point was resolved as in Carthew. The same 
 case is mentioned^ 2 Sid. 76, in a memorandum- at the foot of Leigh v. Ward. The con- 
 fessions of an infant are admissible against him, the same as that of adults. Said in an 
 action against him for bastardy. Mjither v. Clark, 2 Aik, 209 ; Wilcox v. Sheldon, cited 
 Id. 189. But the jury should weigh it with reference to his age and understanding. Id. 
 The capacity to commit a crime necessarily supposes the capacity to confess it ; and « boy 
 only twelve years and five months old was convicted, and executed for murder on his own 
 confession. State v. Guild, 5 Halst, 163, 189. Aaron's case, cited Id. 189. And these 
 decisions appear to be fully sustained by the authorities referrd to in Halstead, 189, viz : 
 Leach's Hawk. b. 1 c. 1; p. l'; 4 Bl. Com. 23 ; Foster, 70. But his confession should be 
 received more cautiously on account of his age. 5 Halst. 189, 190. 
 
 (Thai the admissions of an infant are admssible in evidence against him in civil as well 
 as criminal actions, was distinctly held in Haile v. Lillie (3 Hill E. 149) ; as to the effect of. 
 them, see M'Coon v. Smith (Id. 147). But an infant is not estopped by his odnussion that 
 he was of full age. 5 Sand. 224.) 
 
 Vol. L 55 
 
434 ' Adinissiotis by Attorney. [ch. yni. 
 
 where an attorney gives a direct and formal admission of the execu- 
 *523 tion of a deed, or of *a dishonor of a bill, or where he makes propo- 
 sitions on behalf of his client.(l) Thus,- in an action against the, 
 defendant as, acceptor of a bill, where his attorney had served a tiotice on. 
 the plaintiff to produce all papers relating to a bill, described in the same 
 terms as the one sued upon, end which the notice, stated: to have been 
 "accepted by the defendant" — this was held prima facie evidence of the 
 defendant's acceptance. (2) So, an undertaking by an attorney on the record 
 to appear for two persons, described in the undertaking as joint owners of 
 a ship, is evidence of joint ownership. (3) 
 
 , Admissions by attorneys may also be made indirectly. Thus, it has been 
 held that an attorney's admission of the handwriting ;of the attesting wit- 
 ness to a deed, was tantamount to an .admission, of the due execution of, 
 the instrument. (4) ,, 
 
 But an admission by the defendant's attorney of the du:e execution of an 
 instrument mentioned in the declaration, will not preclude the defendant, 
 from takipg advantage of a variance. (5) And it is not everything that an 
 attorney may happen to state in the course of conversation, which will be 
 evidence in the cause. (6) Thus, in an action for use and occupation, where 
 a witness stated that he had heard from, the plaintiff's attorney that there 
 was an agreement in writings it was held that this was not sufficient evi- 
 dence of the existence of an agreement, so as to render its production 
 necessary. (7) 
 
 Admissions also, that are expressly made by an attorney "without preju- 
 dice," are, as has already been seen, inadmissible in evidence. (8) 
 
 As to the proof of a person being attorney in the cause (so that his 
 admission may bind the party), it will be sufficient, in general, to 
 *624 prove *that he is the attorney upon the record ;(9) yet it has been 
 held, that a letter written to a. plaintiff's attorney before action 
 brought, by t'he attorney who afterwards appears in the cause for the 
 defendant, is not evidence of a fact admitted therein, without further proof 
 that the defendant authorized the communication. (10) 
 
 (1) Gainsford v. Grammar, 2 Camp. 9. 
 
 (2) Holt V. Squire, R. & M. 283. 
 
 (3) Marshall v. Cliff, 4 Camp. 133. 
 
 (4) Milward v. Temple, 1 Camp. 375. 
 
 (5) Goldie v. Slmttleworth, 1 Camp. 70. 
 
 (6) Young V. Wright, 1 Camp. 139, 141 ; Parkins v. Hawkshaw, 2 Stark. K. 239 ; Doed. 
 Hulin V. Rioliards, 3 C. & K.,316 ; Wilson v. Turner, 1 Taunt. 30 ; Fetch v. Lyon, 9 Q. 
 B. 147. 
 
 (7) Watson v. King, 3 C. B. 608. See also Fetch v. Lyon, 9 Q. B. 147. 
 
 . Note 148. — If the client be not present when the admission is made by his counsel or 
 attorney, the current of authority would seem clearly to be that such admission cannot be 
 used against the client out of the particular cause. We had occasion to cite several cases 
 bearing directly and indirectly upon this question, under a head where we thought they 
 more properly ranged themselves, viz : the extent of an agent's authority to make admis- 
 sions binding upon his principal. See note 141. We there, also, had occasion to notice 
 the distinction between such admissions, made under the special authority of the attorney 
 or coun.sel, and the power of the client himself, or his more general agent, while engaged 
 in managing the cause, 
 
 (The attorney in a cause may waive irregularities and informalities in the cause so as 
 to bind his client (Hanson v. Haitt, 14 N. H. 56) ; but cannot waive a substantial right of 
 his client without his consent (Howe v. Lawrence, 3 New Jersey, 99) ; or (compromise and ■ 
 discharge the claim Derwort v. Loomer, 21 Conn. 345 ; Walker v. Soott, 8 Eng. (Ark.) 
 644 ; Wilson v. Wadleigh, 36 Maine, 496. See notes 137, 129.) 
 
 (8) Supra. 
 
 (9) Marshall v. Cliff, 4 Camp. 138 ; Gainsford v. Grammar, 2 Camp- 9. 
 
 (10) Wagstaff V. Wilson, 4 B. & Ad. 339 ; Burgliart v. Angerstoin, 6 C. & F. 695 ; Fope 
 V. Andrews, 9 C. & F. 564. In Marshall v. Cliff (4 Camp. 133), the attorney's letter, relied 
 upon to prove the joint ownership, contained an undertaking to ap| car for them, which 
 was a step in the cause. In Roberts v, Grosley (3 C. & P. 860), the party, whose letter 
 was produced, had already acted as agent for the dofendaat. 
 
SBC. X.] Admissions by Counsel. 435 
 
 When an attorney has been one regularly constituted as the attorney in 
 the cause, admissions made by his managing clerk or agent will have the 
 same effect as if made by himself. (1) 
 
 An admission, for the purpose of the trial of a cause, may be used upon 
 a new trial,(2) even where there has been an alteration in the pleadings, if 
 the alteration does not affect the fact admitted. (.3) -> 
 
 Generally speakina;, admissions made by an attorney are not admissible 
 in criminal cases. Thus, on an indictment for perjury, where it appeared 
 that the attorneys on both sides had agreed that the formal proofs should 
 be dispensed with, and that that part of the prosecutor's case should be 
 admitted. Lord Abinger, C. B., would not permit the case to be tried on 
 these admissions; (4) his Lordship said, in such a case he could not allow 
 any admission to be made on the part of the defendant, unless it is made at 
 the trial by the defendant or his counsel. (5) 
 
 Admissions by counsel. Admissions by counsel stand much upon the 
 same footing as those made by attorneys ; and it has been held, with respect 
 to them, that a special case, signed by the counsel on both sides, for the 
 opinion of the court above, and stating facts proved at the trial of 
 *525 the cause, is admissible as *evidence of those facts on a new trial. (6) 
 And where it appears from the whole conduct of a cause, that a par- 
 ticular fact is admitted between the parties, the jury have a right to draw 
 the same conclusion as to that fact, as if it had been proved in evidence ; 
 and draw such conclusion as to all the issues on the record, though the par- 
 ticular fact admitted goes to support only one issue. (7) 
 
 It seems doubtful how far general statements made by counsel in address- 
 ing the jury, are to be taken as admission of facts, which it may not be 
 necessary for the other party to prove. In an action of libel relating to 
 a check, to which the defendant pleaded a justification, the plaintiff's 
 counsel in his opening made a full statement of the facts as to the check, 
 which he stated had been given by the plaintiff to a third person, and had 
 afterwards been paid by the plaintiff ; but he adduced no evidence on this 
 part of the plaintiff's case ; Lord Denman, C. J., ruled, that the counsel for 
 the defendant was entitled to call for the production of the check, after 
 notice, without showing that it was in the plaintiff's possession in any other 
 
 (1) Griffiths V. Williams, 1 T. K. 710 ; Standage v. Creighton, 5 C. & P. 406 ; Taylor v. 
 Willans, 2 B. & Ad. 845, 856 ; Truslove v. Burton, 9 Moore, 64 ; Taylor v. Foster, 2 C. & 
 P. 195. See Meyer v. Sefton, 2 Stark. R. 274, as to letter of attorney with client's 
 signature. 
 
 Note 149 — Where the town agents of the defendant's attorney gave an admission to 
 the plaintiff's attorney that the printed copy of a private act of Parliament should be 
 receivable in evidence without formal proof: held, that it was not necessary to prove the 
 handwriting of such agents, the admission having been made bona fide, and under 
 the sancticm of the defendant's attorney. Truslove v. Burton, 9 Moore, 64. 
 
 As to the powers of attorneys or counsel to make admissions in the cavise which shall 
 bind or affect their client on other occasions, whether such admissions be oral or in 
 writing, by case, bill of exceptions, bill of particulars, or demurrer, see notes, supra, par- 
 ticularly note 141, at the introduction of the first subdivision to that note. Note 129. 
 
 (2) Elton V. Larkins, 1 Mo. & R. ]96; Doe d. Wetherall v. Bird, 7 C. & P. 6. A sum- 
 mons may be taken out to withdraw the admissions. 
 
 (3) liangley v. Oxford (Earl), 1 M. & W. 508. 
 
 (4) R. v. Thornhiil, 8 C. & P. 575. 
 
 (5) In cases of felony, it is the constant practice of the judge at the assizes to refuse to 
 allow even counsel to make any admission. 
 
 (C) Van Wart v. Wolley, R. & M. 4. See also Edmunds v. Newman, Id. 5. n. In equity 
 a party has been obliged to produce cases submitted for the opinion of counsel, but not the 
 opinions. Preston v. Carr, 1 Y. & J. 175 ; Bolton v. Liverpool (Corporation), 1 P. Coop. 22 ; 
 S. C. 3 Sim. 467 ; 1 Myl. & K. 88. That a statement prepared by an attorney for the 
 opinion of counsel, is evidence against a party, or those identified in interest with him, see 
 Meath (Bishop) v. Winchester (Marq.). 3 N. C. 211. 
 
 (7) Stacey v. Blake, 1 M. & W. 168 ; by Lord Abinger, C. B., in Bolton v. Sherman, 2 M 
 & W. 395, 408. 
 
436 Admissions hy. Principal. \6b. vni. 
 
 way than by the bpening' of- his eounseli and thaty'if the' check was not 
 produced, secondary evidence of its contents was admissible. (!)■ His Lord- 
 ship observed that the opening of very particular circumstances, and then 
 not proving them, was a new practice, and was not correct. But in a later 
 ease, (2) where trover was brought for a colt, and it was essential, in order 
 to entitle the defendant to notice of action, that it should be shown by him 
 that the colt had been distrained, Pollock, C. B., ruled that the opening of 
 the plaintiff's counsel, who had stated that the colt had been distrained, 
 did not dispense with proof of that fact on the part of the defendant. 
 
 Admissions by the defendant's counsel on a foi-mer trial have been 
 rejected as evidence against the client on a new trial. (3) 
 
 Admission by principal not evidence against surety. It is a general rule, 
 founded on principles of justice in regard to the relation of principal an4 
 surety, that the surety ought not to be affected by an admission made by 
 his principal ; although he may be affected by declarations or state- 
 *526 ments made by the principal, when they are connected *wtth the 
 business in respect of which the surety becomes bound, and are made 
 by the principal at the time of transacting that business. (4) 
 
 Thus where a person had become surety by a bond for the faithful con- 
 duct of a clerk, it was held, in an action upon the bond, that an admission 
 by the clerk, made after he' was discharged, of various sums which' he had 
 embezzled, was not receivable in evidence against the surety. (5) So in an 
 action upon a guaranty to pay for goods sold and delivered to a third 
 person, what such person has admitted respecting the delivery of the 
 goods is not evidence to charge the person givmg the guaranty. (6) 
 
 Entries made by a deceased person in the course of duty, or by which 
 he has charged himself with the receipt of money, being admissible as 
 against all the world, (7) are of course evidence against a person who has 
 become his surety that he would keep his accounts faithfully. (8) 
 
 This will be a proper place for referring to admissions: which are receiva- 
 ble as evidence against persons having privity of interest. 
 
 Admissions, evidence against privies. Admissions are not only receiva- 
 ble against the parties who make or authorize them, but also against 
 -persons identified in interest. with those parties. The rules for the admis- 
 sibility of such evidence are analogous to those which are found in the 
 
 (1) Dancombe v. Daniell, 8 C. & P. 223. 
 (3) Machell v. Ellis, 1 C. & K. 682. 
 
 (3) College v. Home, 3 Bing. 119. 
 (Mofflt V. Witherapoon, 10 Ired. 183.) 
 
 (4) See Dunn v. Slee, Holt, 401. 
 
 (Nor is a surety affected by a judgment recovered against his principal, adjudging him 
 to liave been guilty of fraud and misconduct as a general guardian ; the surety not hav- 
 ing been a party to the suit (Clarlc v. Montgomery, 23 Barb. 464; Douglass v. Rowland 
 24 Wend. 33-58. See 15 N. Y. 405 ; Ooan v. Osgood, 15 Barb. 383 ; Snell v. Allen, 1 Swan 
 (Tenn.), 308) ; holding that principal's admissioiv . is not admissible against his surety, 
 unless it be a part of the res g^esto. Walkor v. Forbes, 25 Ala. 139.) 
 
 (5) Smith V. Whittingham, 8 C. & P. 78. In Cutler v. Newlin (Manning's Dig. N. P. 
 137), on the execution of a writ of inquiry on an indemnity bond, an admission by the 
 principal of the amount of damnification was considered by Holroyd, J., inadmissible. In 
 Perchard v. Hamilton (1 Esp. 394), which was an action by a sheriiT upon a bond' to 
 indemnify him against defaults of his bailiff, a written admission by the bailiff of having 
 received levy money, was lield by Lord Kenyon, C. J., to be admissible against the 
 defendant. It was so ruled by him on the ground that the bailiff was in fact the defend- 
 ant in the action : but there seems to have been no evidence to sliow that the defendant 
 was indemnified by the bailiff; and as the bailiff was alive, it would appear that he 
 might have been called as a witness. ' 
 
 (6) Evans v. Boattie, 5 Esp. 36. 
 
 (7) See by Bailey, B., in Gleadow v. Atkin, 1 C. & M. 4?3. 
 
 (8) Gobs v. Watlington. 3 B. & B. 182 ; Wlxitnash v. George, 8 B. & C. 556; Middleton 
 V. Melton, 10 B. & C. 817. See also M'Gahey v. Alston, 3 M. & W. 306. 
 
SBCi x.'J Admissions by. Pnvies. 437 
 
 doctrine of estoppels, and which govern the admissibility of verdicts, judg- 
 ments, and depositions. The reader is therefore referred to the second 
 part of this work, which treats of written evidence, for considerable illustra- 
 tion of the present subject. It has, indeed, been necessary tb anticipate 
 some portion of what would properly belong to the second part of the work 
 (particularly as regards answers in chancery), for the elucidation of the 
 
 points which belong to the present chapter. 
 *527 *Thus, with regard \o privies in blood and privies in law, the 
 
 declarations of a deceased occupier of land, that he rented it under , 
 a certain person, are evidence of that person's seizin against a party 
 claiming as the heir-at-law of such occupier, to explain the nature of the 
 occupation, and to show that it was not adverse.(l) The declarations of 
 an intestate are evidence against his administrator. (2) But in an action 
 by a special administrator, appointed under 38 Geo. Ill, c. 87, during the 
 absence from the country of the executor named in the will,(3) it was held, 
 that the declarations of the latter , made by him while he was the acting 
 executor, were not admissible, against the plaintiff. (4) 
 
 With respect to admissions made by persons who have been privies in 
 estate with those against whom the admissions are used, the evidence, after 
 their decease, is generally admissible on a different principle, as being a 
 declaration against inte^st. And when the persons are alive, the evidence 
 may 1)^ admissible, in some cases, as explanatory of acts done or forborne, 
 or of the fact of possession. But without reference to either of these princi- 
 ples, it would seem that an admission by a proprietor or occupier possessing, 
 any interest, would be evidence as to the nature and extent of that interest, 
 against a party who was in privity of estate with him. (5) The receipts 
 for a modus, given by a vicar's lessee, are evidence against the vicar, by 
 reason of the privity of estate. (6) An answer in chancery is admissible 
 
 in evidence against a privy in estate.(V) A statement in a lease 
 *528 by a landlord has been held admissible against a person who *claim8 
 
 under a subsequent lease of the same land. (8) A letter, written 
 
 (1) Doe d. Human v. Pettett, 3 B. & A. 323. If this case is to be treated as a case of 
 admissions, it would be immaterial that the declarant was deceased. But the evidence 
 may be considered also as a declaration explanatory of possession, or as a declaration 
 against interest. See Peaceable d. Uncle v. Watson, 4 Taunt. 16 ; Doe d. Bagaley v. 
 Jtines, 1 Camp. 367. Thesu iiOints are illustrated by the doctrine -concerning the admissi- 
 bility of verdicts against priviesin law and in blood. See post. Vol. II ; Locke v. Norbonne, 
 3 Mod. 141 ; Outram v. Morevvood, 3 East, 346 ; Co. Litt. 353 a ; Com. Dig. tit. Estoppel, 
 B;3T. R. 365. 
 
 (3) Smith V. Smith, 3 N. C. 32. The plaintiff was regarded ias claiming under the 
 intestat*, though, in fact, he need not have done so. See also Hamphreys v. Boyce, 1 Mo. 
 & R. 140. 
 
 (See also Jones v. Jones, 1 Foster (N. H.), 219 ; Smith v. Morgao, 8 Gill, 133 ; Harvey v. 
 Anderson, 12 Geo. 69 ; Colgan v. Philips, 7 Rich. (S. C.) 3. See Brown v. Mailler, 2 Kern. 
 118, per Denio, J. 
 
 (3) See Tavnton v. Hannay, 7 Ves. 460 ; S. C, 3 B. &. P. 26. 
 
 (4) Rush v". Peacock, 2 Mo. & R. 162. 
 
 (5) See Doe d. Manton v. Thrupp 9 Blng. 41 ; Walker v. Broadstodk, 1 Esp. 458; Davlea 
 V. Pierce, 2 T. R. 53 : Doe v. Rickerby, 5 Esp. 4 . Tindal v. Whitrow, 1 C. & P. 22 ; Doe d. 
 Pritchard v. Jauncey, 8 C. & P. 99. With respect to the amount of requisite interest in a 
 person whosefdeclaratiou can bind another by reason of privity of estate, see post as to 
 
 Verdicts. ■ " 
 
 (This subject, of the admission of evidence against privies, has been considered in a 
 
 former place. Note 130.) 
 (0) Jones V. Carrii^ton, 1 C. & P. 329. It would seem that the receipts Were admissible 
 
 on a more general ground, as being declarations by persons (deceased) against interest. 
 
 (7) Sussex (Earl) v. Temple, Ld. Raym. 310. In this case the court went too far in 
 determining that the answer might be read against persons in occupation of property, on 
 pr.iof that it was the reputation of the county, that the lands had belonged to the person 
 making the answer. 
 
 (8) Crease v Barrett, 1 C, M. & R. 932. See Doe d. Strode v. Seaton, 2 A. & E. 171, 
 
438 Admissions by Privies. [ch. viii. 
 
 by a vicar, in respect of the property of the vicarage, is evidence against 
 his successor. (1.) 
 
 An admission by a tenant in possession, defendant in an action' of eject- 
 ment, is evidence against a co-defendant, who defends as a IandIord.(2) 
 
 But it seems that the mere declarations of tenants will not in general be 
 evidence against their reversioners, (3) and the declarations of a former 
 occupier of the defendant 's land have been ruled not to be admissible 
 against the defendant, upon a question whether the plaintiff had an ease^ 
 ment in the land. (4) A case, stated for the opinion of counsel, touching 
 the right of presentation to a living by a bishop, was held to be evidence 
 against a subsequent bishop of the same see, on a question touching the 
 right of presentation to the same living. (5) An ancient statement, con- 
 cerning the payment of tithes of a parish by a modus, signed by the 
 rector for the time being, is evidence against a succeeding rector.(6) An 
 answer to a bill filed in the Court of Exchequer, in a suit instituted for 
 tithe hay by a vicar against the rector and others (owners of lands in the 
 parish), in which answer the defendants disputed 'the vicar's claim, and 
 declared that the tithes in question belonged to the rector, will be evidence, 
 in an action for tithes by a succeeding rector against owners or occupiers 
 of the same lands, for the tithes of which the former suit was instituted. (7) 
 "It appears to me," said Lord Ellenborough, C. J., " not to be res~inter alios 
 acta, but inter eosdem acta; and was not only evidence, but strong 
 evidence against the defendant, who stood in the same place, by derivation 
 of title and by legal obligation, as (the former owner of the same land) ; and 
 (that former owner), upon his oath, in a shit against him by the vicar, has 
 declared that the tithe is due to the rector, and not to tlie vicar; and now 
 that samatperson, in effect (that is, the present owner, who purchased of 
 the former owner the very lands over which tithes were now claimed), is 
 deraigning the title of the rector in favor of the vicar."(8) 
 
 Although ancient books of survey and ancient maps, when they are 
 *529 not *in the nature of public documents, have been in some oases con- 
 sidered as not being legitimate evidence of boundary, even where 
 they might seem upon principle, to be receivable on the ground that the 
 boundary was a matter of public interest and concern ; yet this species of 
 evidence is frequently available by way of admission, where there is a 
 privity of estate between the person against whoni the survey or map is 
 used and tlie person directing it to be made. Thus it was ruled by Holt, 
 C. J., that if A. be seized of the manors of B. and C, and, during his seizin 
 of both, he causes a survey to be taken of the manor of B., and afterwards 
 the manor of B. is conveyed to E., and afterwards there are disputes 
 between the lords of the manors of B. and C. about their boundaries, this 
 old survey may be given in evidence. (9) In like manner entries of receipts 
 
 (I) Doe d. Coyle v. Cole, (5 C. & P. 359. 
 (3) Doe d Mee v. Lithcrland, 4 A. & E. 384. 
 
 (3) By Patteson, J ,An Tickle v. Brown, 4 A. & E. 378. 
 
 (4) Sclioles V. Chadwick, 3 Mo. & R. 507. . 
 
 (.■)) Meath (Bp.) v. Winchester (Mai-q), 3 N. C. 183. The decision was also rested on the 
 ground of the statement being against interest. There was no personal l*nowledge of 
 the facts contained in the statement, but they were all evidenced by written documents. 
 
 (6) Maddison v. Nuttall, Bing. 326. See also De Whelpdale v. Millhurn. 5 Pri. 485. 
 Receipts of incumbents have been received upon the same ground, though it would seem 
 that in both cases the declaration was admissible, as being against interest. 
 
 (7) Darraoutlj (Lady) v. Roberts, 10 East, 384. The suit was abandoned by the vicar, 
 who from that time had acquiesced. See also Travis v. Chaloner,3 Gwill, 1237 ; Ashby v. 
 Power, Id. 1339 ; Benson v. Olive, 3 Gwill, 701 ; Sussex (Earl) v. Temple, 1 Ld. Eaym. 310. 
 
 (8) 16 East, 339,340. 
 
 (9) Bridgman v. Jennings, 1 I<d. Raym. 734 ; B. N. P. 883. And see Davies v. Pierce, 
 2 T. R. 43 ; AUott v. Wilkinson, 4 Gwill. 1685 ; 2 E. & Y. 393. That such a survey is not 
 evidence against a stranger ; by Holt, C. J., Anon., 1 Ld. Raym. 734. And see 1 Str. 95 ; 
 
BBC. X.] Surveys , Entries. 439 
 
 of rents by a deceased steward have been admitted, in a suit between two 
 persons, who both claimed under the employer of that 8teward.(l) 
 
 But as a person cannot be regarded a privy in estate with a subsequent 
 possessor of the estate, except during the time when the estate was in his 
 own possession, it has been held, that an answer in chancery, respecting 
 the title to an advowson, filed by one who had been formerly- seized of the 
 advowson, but who had conveyed it away twenty years before the answer, 
 was not admissible against a person claiming the advowson through him. (2) 
 And admissions by a mortgagor, made after he had parted with his interest 
 by a settlement, have been held not to be admissible on behalf of a mort- 
 'gS.gee, to show that the money had actually been advanced on the mortgage, 
 the mortgagee seeking to avoid the settlement as being voluntary. (3) 
 
 ; JRiile applicable in Cases of Pfitsonalty. This rule as to privity of estate 
 is generally applied to cases of real property, but the principle is equally 
 applicable in matters relating to personalty, and where a chattel or a 
 personal contract has been assigned, the declarations of the assignor are 
 generally admissible against the assignee. , 
 
 Thus it has been held, upon an issue between two persons, whether a 
 
 third person died possessed of certain personal property, that evidence 
 
 might be given of a declaration, made by that third person, that he 
 
 *530 had *assigned the property, the party, against whom the declarations 
 
 were adduced, claiming under that person. (4) 
 
 But where the question was whether certain goods which had been seized 
 under a Ji. fa. against A. were his property, or the property of the plain- 
 tiff, who claimed under a sale ; and in order to show that the sale was 
 fraudulent, it was proposed to give in evidence a statement made by A., 
 when the execution went in, and while he remained in possession, it was 
 ruled that the evidence was not receivable. (5) So upon the trial of an 
 issue, directed to ascertain whether certain goods which had been seized 
 by the sheriff under a Ji. fa. against a third party, at the suit of the 
 defendant, were the gpods of the plaintiff, who claimed them under an 
 assignment, it was ruled by Wightman, J., that a statement, made by the 
 third party before the execution went in, was not admissible on behalf of 
 the plaintiff, as the execution ci-editor did not claim under the third party, 
 bat adversely to him. (6) And upon a similar issue, Maule, J., rejected 
 the declarations of the debtor, as to the property in the goods, upon the 
 grpi;nd that, if they did not belong to the plaintiff, the defendant would 
 succeed on the issue, whether they belonged to the debtor or to any other 
 person except the plaintiff. (7) An admission by a person who takes a 
 bankrupt's goods in execution, that he knew an act of bankruptcy had 
 been committed, is not evidence against the person who takes the goods 
 by assignment from the sheriff, where the admission is subsequent to the 
 assignment. (8) 
 
 With respect to admissions by persons in possession of chattels or nego- 
 
 5 T. K. 133 ; 13 Vin. Ab. 90, pli 13. It has been said, that an old map has been allowed 
 in evidence' where it came along with the writings, and" agreed with the boundaries 
 adjusted in an ancient purchase. Qilb. Bv. 78. 
 
 (1) Doe d. Strode v. Seaton, 3 A. & E. 171. As to tithe receipts, see 3 E. & Y., Titho 
 Cases 1129, 1131. Cases where the evidence would have been receivable as a declaration 
 against interest, have sometimes been determined on the principle under consideration. 
 
 (3) Gu!ly v. Exeter (Bisliop), 5 Bing. 171. 
 
 (3) Doe d. Sweetland v. Webber, 1 A. & E. 733. 
 
 (4) Ivat V. Finch, 1 Taunt. 141. The judgment also proceeded on the ground of » 
 declaration against interest ; which seems to be a safer ground, as the third person had 
 parted with the possession before the declaration was made. 
 
 (5) Koberts v. Justice, 1 C. & K. !'3. 
 
 (6) Prosser v. GwilUm, 1 C. & K. 95. ' 
 
 (7) Stothert v. James, 1 C. & K. 131. 
 
 (8) Deady v. Harrison, 1 Stalk. E. 60. 
 
440 -Sy Solders of Securities. [ce. vni. 
 
 , liable securities being evidence against gitbseqnent holders, which maybe 
 
 thought analogous to admissions by privies in estate, it appeals to be a 
 
 .rule, that where a person must recpver through the title of another,, he is 
 
 bound by the declaration of the party through whom he claims. Thus,, if 
 
 a person bring an action upon a bill pf excha;ige, the declaration lOf.a 
 
 person, who, at the time when such declaration was made, was holder of 
 
 the bill, and who had not parted with it till after it, was due, is. evidence 
 
 against the plaintiff, being made by one according. to, whose title his own 
 
 must stand or fall.(l) So in an action by the indorsee against the acceptor, 
 
 where the defense is that, the bill wa^ obtained, by fraud, declara- 
 
 *631 tions of *the drawer to that effect are admissible, if it can be shown 
 
 that the plaintiff was privy to the fraud. (2) 
 
 But it seems that the analogy with respect to the admissions of privies in 
 estate is not adhered to, where the title to negotiable instruments is derived 
 from persons who have made admissions, but where there is not any exist- 
 ing identity of interest. In such cases, the right of a person holding by a 
 good title is not to be cut down by the acknowledgment of a former holder, 
 •that he had no title. Thus, in an action by the indorsee against the maker 
 of a promissory note payable with interest on demand, the declarations 
 made by the payee, whilst the note was in his possession, to the effect that 
 he gave no consideration for it to the maker, were held inadmissible for the 
 defendant, on the ground that the plaintiff could not be identified with 
 the payee, the bill not being overdue at the time of the indorseinent.(3) 
 The declarations were not those of a person holding the negotiable seicurity 
 under the same circumstances as the party to the action. 
 
 It has been held, (4) that as the indorsee of a promissory note does not 
 claim by the title of the indorser, but has a title of his own as indorsee, he 
 ought not to be affected by any declarations of the indorser, — the note not 
 being taken without consideration, or after it was due, ^-notwithstanding 
 the declarations were made whilst the indorser was in possession of the note. 
 But where it appears that the indorsee is merely the agent to sue for the 
 indorser, the declarations of the latter, whilst he was holder, are evidence 
 •against the former. (5) 
 
 Admissions respecting the subject matter of a cause, by a person who at 
 the time of making them had the same interest in such matter as one of the 
 parties to the cause, are admissible in evidence against that party, though 
 the person who made the admissions is alive and might be called as a 
 witness. (6) The same rule applies to admissions of agents, which are 
 receivable in evidence against principals, as Being binding upon them. 
 There might seem to be some reason for a distinction between the rule 
 respecting agents, and that which relates to declarations against 
 *532 interest, *inasmuch as in the latter case, the party to the suit is to 
 
 (t) Benson v. Marshall, cited in Shaw v. Broom, 4 D. & R. 781. See also Beauchamp v. 
 Parry, 1 B. & Ad. 89. Ante 1 19-129, S29. 
 
 (2) Peckham v. Putter, 1 C. & P. 332. 
 
 (3) Barough v. White, 4 B. & C. .32.5 ; explained in Woolwav v. Rowe, 1 A. & E. 116. 
 See also Phillips v. Cole, 10 A. & E 106 ; Smith v, De Wruitz.R. & M. 313. 
 
 (4) Beauchamp v. Parry, 1 B. & A. 89. An exception is there made as to declarations 
 .cotemporaneous witli the making of an instrument, and the case of Kent >. . Lnwen (1 
 Camp. 177), was referred to, where letters from the payee to the maker were admitted, 
 which stated an usurious ccmsideration for the note. It was said, that if the declarations 
 had been made (as in the case of Kent v. Lowen) at the time of the contract, the case 
 might be different. It is to be observed, that in Kent v. Lowen, the letters were tlie usu- 
 rious contract itself, and it can make no difference whether an act consist of oral decls^ra- 
 tiona or not. Some confusion is, however, introduced into tlie case by Lord EUenborough, 
 stating that evidence of an act done was admissiible af;ainst persons claiming under those 
 who did the act — whereas the admissibility of the evidence does not appear to depend on 
 the privity of the parties. Ante p. 829. 
 
 ■| Wolstead v. Levy, 1 Mo. & R. 138. See also Harrison v. Vallance, 1 Bing. 45. 
 I Wool way v. Bowe, 1 A. & E. 114 ; Brickell v. Hulso, 7 A. & E. 454. 
 
8EC. XI.] Admissibility of (jOttfiissionSi 441 
 
 be affected by the declaration of a person with whom he has no eommunitj^ 
 of interest, and for whose assei-ti,ops he ia not responsible. 
 
 SECTION XI. 
 
 ■Exertion to the Gerieral Mule as to,, Jleei/rsajfy in Gases pf Confessions 
 I ' made by I^risoners. 
 
 The confessions of prisoners are received in evidence on the same prinr 
 ciple upon which admissions in civil suits are received, viz : the presump- 
 tion that a person will not make an untrue statement against his own 
 interest. In criminal cases, a deliberate confession carries with it a greater 
 probability of truth than an admission in civil cases, the consequence 
 being more serious and penal : " habemus optimum testem, eon/itentem 
 reum."{l) But it is' to be observed, there may not uufrequently be 
 
 (1) See Lambe's Case, 2 Lea. C. C. 554 ; Gilb. Ev. by Loft, 216 ; Warwickshall's Case, 
 1 Lea. C. C. 263 ; S. C, 2 East P. C. 658. ' 
 
 Note 150. — A prisoner may be convicted on his voluntary confession, made to any 
 person, of the greatest crime, although totally uncorroborated by any single circumstance. 
 Such corroboration was holden essential by the older editions of Leach's Crown Law, 
 which was followed by Rozell, J., in State v. Aaron (1 South. 243). But this doctrine 
 stands corrected by the later editions (see that of 1815, Vol. I, p, 311. 'WTieeling's Case), 
 and the correction was followed by Ewing, C. J., in State v. Guild" (.i Halst. 185, 186 ; 2 
 Curwi Hawk. ch. 46, §37, S. P.). Such confession is, in most cases, the highest evidence 
 that can be given. Per Nott, J., in The Corporation of Columbia v. Harrison, 2 Hep. 
 Const. Ct. 215. 
 
 Other cases have, however, manifested great distrust of confessions which are not judi» 
 cial. In one, where a horse was stolen, and two men returned with him,' bringing the 
 "prisoner, who qonf ssed to the owner that he stole the horse, neither of the bringers 
 ■being sworn, the court directed an acquittal, though they said it would have been other- 
 wise had the prisoner stated confirmatory circumstances, which had been proved.- But a 
 baked confession, unattended with circumstances, is not sufficient. The prisoner might 
 have been misunderstood, or his confession perverted, or he might have been operated 
 upon. The smallest mistake might prove fital. A confession, from the very nature of 
 the tiling, is a very doubtful species of evidence. State v. Long, t Hayw. 455. And the 
 ■courts which go against the necessity of corroborating circumstances, yet agree that the 
 corpus delicti must be proved by other evidence, in order to render the confession opera- 
 tive. Thus, in larceny, other proof must be given of the taking of the goods ; or, in 
 murder, the fact of death. State v. Guild, 5 Halst. 185. (On an indictment for murder 
 the corpus delicti must be proved by direct proof of the d>-ath or of the violence or other 
 act of the defendant which is alleged to have produced death. It cannot be proved by 
 circumstaiiees, by presumptive evidence of the most cogent and irrerisiible kind. Ruloff 
 V. The People, 18 N. Y. 179 ; see S. C, 3 Parker Cr. R. 401. A confession on an indictment 
 for blasphemy, is not sufficient proof of the crime ; People v. Porter, 2 Parker Cr. 14 ; nor 
 is the admission of the defendant on an indictment for bigamy sufficient proof of the first 
 marriagp. Gahag:an v. People, 1 id. 378.) 
 
 Confessions by infants are competent, as well as those of adults. Rex v Thornton, Ry. 
 & Mod. Cr. Cas. 27. " He who isa rational and moral agent, and can merit the infliction 
 of legal sanctions, must be able to detail his motives and acts. If, therefore, the prisoner 
 be of an age to be punished, he was of an age to confess his guilt." Per Southard,".!., in 
 Aaron's case, 1 South. 246 ; cited 5 Halst. 189 ; 4 Bl. Com. 24 ; York's Case, Fost. 70. 
 People V. Tripp. 4 N. Y. Leg. Obs. 344. And in one case the confessions of a boy under 
 eleven (State v. Aaron, 1 South. 231), and in another under thirteen years of age (State v. 
 Guild, 5 Halst. 163), were received and acted upon in charges of murder. The latter ver- 
 dict was sustained by the confessions being connected with and fortified by circumstances 
 (Id.) ; but in the former a new trial was granted, for want of such ingredient. 1 South. 
 231, 238, 243. As an infant under seven is not capable of crime { per Kirkpatrick, C. J., 
 in State v. Aaron, 1 South. 238), it follows that his confessions are not receivable. 
 *533 And in *all these cases of extra judicial confession by infants under the age of dis- 
 cretion, it seems desirable, if not essential, that corroborating circumstances should 
 appear.* 'The question of their necessity was much considered in the two cases last cited, 
 as well as their nature, their mode of application, and the cautions under which they are 
 to be received. They are said to be such as serve to strengthen the confession, to render 
 it more probable ; such in short, as may tend tq impress a jury with a belief of its truth. 
 
 Vol. I. S6 
 
442 A-dmissibility of Confessions. [ch. viii. 
 
 Tliey are djatinguished from fiacts which,, independent of the confesmon, will warrant ti 
 Conviction ; for then the verdict ^ould stand, riot upon the confession, but upon those 
 independent circumstances. " To corroborate is to strengtheri, to confirm by additional 
 security, to add strength. The testimony of a witness is said to be corroborated when it 
 is shown to correspond with the representation of some other witness, or to comport with 
 some facts otherwise known and established. In this view of the subject, the evidence in 
 this cause affords circumstances corroborating, in a singular and remarkable manner, the 
 confessions which were proved. I shall briefly state them. The prisoner said he went to 
 the house of the deceased for, the purpose of borrowing a gun. It was proved a gnn had 
 been kept there, and that the prisoner knew it. He said she (the deceased) refused him 
 the gun, and accused him of having done miscjiief to her pig and pigeons. It %vas proved 
 that she had entertained a belief that such mischief had been done by him. He confessed 
 he had struck her with- a yoke. The witness who first saw her after the disaster testi- 
 fied that he found a yoke, and blood on it, lying near her. The prisoner confessed that 
 as h,e was going out, after she had refused his request, he saw the yoke by tlie door, 
 picked it up and went back Jonathan Van Kirk, who resided in the house, testified 
 that when he went out about noon to work, the yoke was by the side of the door. The 
 prisoner stated that she was on the hearth. M'Coy, the first who saw her, found her lying 
 in the corner of the fireplace. He stated that she was starching a cap. A- cap, says 
 M'Coy, lay on the hearth by the side of her. To Philip Knowles he related the story, 
 and confessed he struck her a first, second, third and fourth time. M'Coy testified 
 there were four wounds — one on the top of her head, one on the right temple, one on 
 the right eye, and one on the under jaw. The minute detail of incidents, and the steady 
 uniformity of his relations to a number of persons, are not among the least striking of 
 the circumstances which mark these confessions. One supposed discrepancy only has 
 been pointed out. To one of the witnesses he said the deceased was sitting by the fire, 
 blowing the fire. To another, that she was starching a cap and stooping down on the 
 hearth. No difliculty, however, seems to exist in reconciling these representations, by 
 supposing that lie spoke of different ppints of time." Per Ewing, C. J., in State v. 
 Guild, 5 Halst. 187, 188. Again; Aaron, a colored boy under twelve years of age, a 
 slave, confessed that he had drowned a child by throwing him into the well. He was 
 seen at play with the child, near the well, shortly before the child was missed, no 
 other person being with them ; in searching for the child the prisoner was found up 
 in a cherry tree, he pretended the child had gone up the road, looked round and 
 called for hiin ; weni to bed at night without his supper ; admitted, next morning, 
 he saw the child fall into the well ; gave no reason why he neglected to tell of it, 
 but quietly continued his work. When the child was found and taken out of the 
 well, he came up and (seeing the corpse lying on the earth) said, " so, you have found 
 Stephen." These were relied on by Mr. Justice Southard as corroborating circum- 
 stances. The State v. Aaron, 1 South. 233, 247. But a new trial was granted in this 
 case. Kirkpatrick, C. J. (at p. 340). says the circumstances were not brought out by the 
 confession. The c<mfe3sion itself was pregnant with no circumstances to give it authority, 
 or in any way to corroborate it. In this Rozell, J., concurred. 
 
 Where a confession was made long after the prisoner was arrested and imprisoned, detail- 
 ing several circumstances which were found to be true, and which, if known by tha 
 prisoner at the time of the alleged offence, would tend materially to corroborate his 
 confession, it was held a very laudable caution to submit to the jury whether the cir- 
 cumstances might not have been learned by the prisoner through the information of others, 
 and he enabled in that way to state them, and to charge that, if the jury believed this to 
 be the case, they should disregard the proof of their truth as to any tendency it might 
 have to fortify the confession. The State v. Guild, 5 Halst. 188. 
 
 The oral confessiim to a private person may be received, thou^i the prisoner be 
 examined j udicially before a magistrate, who puts his examination Hi writing. Uex v. 
 Carty, Dublin Oyer and Term ner, 1797, 1 Macnally, 45. Accordingly, on trial for man- 
 slaughter, the state read the written confession of the prisoner, made before the magistrate, 
 and then offered evidence of his conversations on other occasions than the examination. 
 This was objected to, but admitted and held well. " Otherwise, if a criminal had twenty 
 times acknowledged the commission of a fact, and should afterwards refuse to confess it 
 upon an Examination before the justice, for the very purpose of preventing any proof of 
 his former acknowledgments, he would, by his own acts, defeat the ends of justice." State 
 V, Wells. Coxe, 434, 439. 
 
 Where primary evidence cannot be obtained, as by the production of counterfeit money, 
 the confession may be used as secondary evidence of its contents. A confession of the 
 prisoner was accordingly received that he had counterfeit guineas, though the guineas 
 were not produced, being out of the power of the prosecution. The State v. Plielps, 3 
 Koot, 87. 
 
 The following case was decided upon the point of relevancy : On trial for mvwder by 
 poison on the high seas, an offer was made to prove that the prisoner, after his arrival at 
 Philadelphia, and after the alleged crime committed, proposed to the witness to take pas- 
 sage with him to Baltimore, to mingle arsenic with the food of the crew, so that they 
 would vomit, when he, the prisoner, Should be called on to attend them as physician ; and 
 
SEC. XI.] Made in Meaminaiions. 443 
 
 *534 *motiv^s of hope and fear inducing a person to make an untrue 
 ; confession, which seldom operate in the case of ordinary admis- 
 sions, (l) And, further, in consequence of the universal eagerness and 
 zeal which prevail for the detection of guilt, when oflfenees occur of an 
 aggravated character, — in consequence also of the necessity of using testi- 
 mony of suspicious witnesses for the discovery of secret crimes, — ^the 
 evidence of confessions is subject, in a verv remarkable degree, to the 
 imperfections attaching generally to hearsay evidence. It is to be observed 
 also, that words in criminal cases are often misreported through ignorance, 
 inattention or malice, and extremely liable to misconstruction, and that the 
 evidence cannot be disproved by negative evidence, in the same manner as 
 facts. (2) For thtese reasons, the statements of prisoners are often excluded 
 from being given in evidence, in cases where they would be unobjectionable 
 as the admissions of a party to a civil suit. 
 
 Confessions made in examinations. Confessions of prisoners are 
 *535 often made in the course of their *examination before magistrates. 
 
 These examinations are taken in the course of a judicial proceeding, 
 and according to prescribed forms ; consequently the evidence of confessions 
 contained in them is obviously free from many of the objections incident 
 to various other species of hearsay evidence. The principles applicable to 
 confessions in general apply to such as are contained in examinations before 
 magistrates, but as the latter are required to be taken in writing, it has 
 been thought expedient to treat of examinations apart from the general 
 subject. A more particular account of such examinations, and the mode of 
 proving them, will be found in the second part of the work, which, however, 
 IS unavoidably anticipated in some measure in the present section. Various 
 points also, as to the verbal proof of confessions made in the presence of 
 magistrates, will be considered in the chapter on Secondary Evidence. (3) 
 
 he would then administer arsenic again in such quantity as would destroy them, and then 
 he and witness would go off with the vessel — adding, that Tie, had 1mA experience of it. 
 This was admitted ; the conversation in respect to the passage heing necessary to explain 
 what-is italicised, which, 8;> connected, became material ; but otherwise would not be. 
 United States v. Tardy, Peters' C. C. Rep. 458. 
 
 (1) See Fost. Cr. Law, 243; 4 Bl. Com. 357. Instances have occurred of persons con- 
 fessing themselves guilty of crimes of which they were innocent ; and of innocent persons 
 acting under the imputation of crimes in a manner affording a strong- presumjrtion of 
 guilt. See Harrison's 9ase, cited 1 Lea. G. C. 264, n. See also the confessions of witches : 
 Mary Smith's Case, 2 How. St. Tr. 1049 ; Case of the Essex Witches, 4 Id. 817; Case of 
 the Suffolk Witches, 8 Id. 647 ; Case of the Devon Witches, tried by Lord Hale, 8 Id. 
 1017. 
 
 (2) See Fost. Cr. Law. 243. See also the speech of Mr. Adams, in Crossfield's trial for 
 high treason (26 How. St. Tr. 57), where it is observed, that the person relating the con- 
 fession is generally relieved from the apprehension of punishment ; and that what people 
 have said upon a subject shocking or otherwise exciting, is usually repeated with exagger- 
 ation. And see by Alderson, B., in R. v. Simons, 5 C. & P. 540, w^ere a prisoner's con- 
 versation with his wife was repeated differently by the witnesses ; by Parke, B., in Earle 
 V. Picken, 5 C. & P. 542. n. supra; Coleman's Case, cit. Joy on Conf. 108. See further 3 
 Euss. Cr. & M., by Greaves, 824, n. ; Greenl. Ev; | 214. 
 
 (3) Note 151. — A prisoner, being under examination before a magistrate on a charge 
 of felony, a statcnent was made in his presence by the solicitor for the prosecution, which 
 the witness called to prove it said, he believed had been taken down in writing; for this 
 reason oral evidence was refused. Rex v. Hollingshead, 4 Carr. & Payne, 242. And if it 
 appear that the examination of the prisoner was reduced in writing, oral evidence of such 
 examination cannot be received, nor anything which should properly have been inserted. 
 M'Kenna's Case, 5 C. H. Recj 174, 176, before Colden, Mayor. "The written examination 
 must be produced. Eobetaille's Cases, before Colden, Mayor, 5 C. H. Rec. 171. And in 
 one case the same court said, if the' magistrate profess to take the examination according 
 to the statute, oral testimony of it shall not be received. Collins' Case, 4 C. H. Rec. 139. 
 But if it a^ipoar that in fact a confession made before a magistrate was not reduced to 
 writing by him, "it is admissible in evidence. The case in which such testimony was 
 received was one of maiming, a misdemeanor ; but was said to stand on the same ground 
 as a felony. The English practice was admitted to be different, but the court say thera 
 
444 Adrfiissibility of Confessions. [<S!h. viii. 
 
 i^ an impropriety in adinitting a eojifessipn ma^e before a private man. and not one made 
 before a justice because he has omitted to perform his ,d)ity. The statute is only directory, 
 afid the state ought not to be prejudiced by the omission. State v. Irwin, 1 Hayw. 113. 
 The English doctrine was conceded on the authority of two old cases misreported in 
 Leach. Rex v. Jacobs, Leach, 285, and Hinxman's Case, Id. 286 (old edition) But these 
 cases were afterwards corrected by the i learned reporter jn the subsequent editions, by ; 
 which they appear to have all along conformed to the doctrine as laid down in North 
 Carolina. The doctrine of those cases in truth was, that where the confession clearly 
 appears not to have- been reduced,tD writing, oral evidence of it may be received, though! 
 it was before the magistrate oificially. i. This correction may be seen by consulting the .2d 
 ed. of Le.ach, 254, 25S ; and the 3d ed., 849 ; and see Macnally, 49, 50, to the same point. 
 In Hall's Case (Macnally, 40), it, was a so, held that if the confession be not taken in 
 writing, oral evidence of it may be given. S. Cpost, note 153. And so 'if a confession 
 to a magistrate when a prisoner is not before hiin for the purpose of examination. Col, 
 lins' Case, before Colden, Mayor, 4 C. H. Rec. 139. And of acts of the prisoner done 
 before the magistrate, may be proved by parol? though, they took place while the exam-- 
 ination was going on, and were not detailed in writing.. Robetaille' Cases, before Colden, 
 Mayor, 5 C. H. Kec. 171. 
 
 So if the examination be taken in writing before, the comm,itting magistrate,, and by 
 reason of some irregularity, it is inadmissible as a written examination, garol eyidenpe of 
 what the prisoner said at the time of the examination, may be received. In this case the 
 exarainatioti was before the Coroner, who was allowed to state from memory what the 
 prisoner said on the occasion of the examination, as to so much as was inquired for. And 
 the prisoner was found guilty, and afterwards executed. Rex v. Reedi 1 Mood. & Malk. , 
 •103. 
 
 See R. S. of NeW York, pt. 4, ch. 2, tit. 2, § 16, stated post. 
 *536 *Where the cbinplaint oJ the prosecutor was reduced to writing in the police, and 
 the confession of the. prisoner followed, stating that "the charge in the foregoing 
 affidavit is true,;" and further, that he obtained goods by false pretences from several 
 persons not named in the indictpient ;, held that such a confession, so, referring to an affi- 
 davit, which neither was, nor could Jje given in evidence, should have no influence with 
 the jiiiy. Steel's Case, 5 Cit. H. Rec. 5. 
 
 2 R. S. of New York, pt. 4, ch. 2, ^14, stated post. 
 
 But where a prisoner, when before the committing magistrate, was sworn by mistake, 
 being taken for a witness, and as soon as the mistake wa.s discovered, the deposition 
 which was begun was destroyed, and the prisoner cautioned, and after this he made, a 
 statement, this was held receivable in evidence. Rex v. Webb, 4 Carr. & Payne; 564. 
 
 If it be taken in a case of misdemeanor, it is also inadmissible, being first regularly 
 proved ; and it was read in such a case before the now statute (2 R. S 708, stated post), 
 authorizing it. Steel's Ct^se, 5 C. H. Rec. 5. And see State v. Irwin, 5 Hayw. 113, stated 
 ante. 
 
 The following is the statute of New York on this subject. By pt. 4, ch. 3. tit. 2, § 13, 
 persons arrested under a warrant issued for any offense, are to be brought before a magis- 
 trate ; a proper return on the warrant is to be, indorsed and signed, and the warrant 
 delivered to the magistrate. By § 13, the magistrate is then to examine the complainant 
 and witnesses on oath in the prisoner's presence. 
 
 By ^5 14. " The magistrate shall then proceed to examine the prisoner in relation to the 
 offense charged. Such examination shall not be on oath ; and before it is commenced, 
 the prisoner shall be informed of the charge made against him ; and shall be allowed a 
 reasonable time to send for and advise witji counsel. If desired by the person arrested, 
 his coqnsel may be present during the examination of the complainant and the witnesses 
 on the part of the prosecution, and during the examination of the prisoner." 
 
 By § 15. " At the commencement of the examination, the prisoner shall be informed by 
 the magistrate thas he is at liberty to refuse to answer any question that may be put to 
 him." 
 
 By § 16. " The answer of the prisoner to the several interrogatories shall be reduced to 
 writing by the magistrate, or under his direction. They shall be read to the prisoner, 
 who may correct or add to them ; and when made conformable to what he declajes is the 
 truth, shall be certified and signed by the magistrate." 
 
 Under the stat. Of Phil, and Mary, it dpes not appear to be necessary that the magis- 
 trate caution the prisoner, or wnrn him of the effects of his examination as evidence 
 (Macnally, 38), or that he is not bound to confess, or that his confession should be volun- 
 tary, or that it may be used in evidence against him. , People v. Maxwell, before Riker, 
 Recorder, New York General Sessions, 1 Wheel. Or. Cas. 163. But ever; under the Eng- 
 lish St tute of Phil, & Mary, or 7 Geo. IV, his statement ought not to be taken till the 
 evidence against liim is gone through ; and he should then be asked if he has anything 
 to say in answer to the charge. This was strongly suggested as the proper course by 
 Garrovv, B., who, however, received a confeasion made before the evidence had gone 
 through ; but expressed strong doubts of its legality. Rex v. Fagg, 4 Carr. & Payne, 530. 
 
 On one occasion, the confession was drawn out by questions put by the nijigiairate, the 
 
SEC. XI.] The Whole to be l¥t)chtced. 446 
 
 ■*6 a7 * Whole Confession to be Prodneed. As was 'observed' in treating ot 
 ■ admissions, it is necessary that the whole of' what a prisoner has 
 said, on the occasion of making a confession, shotild be related entire. This 
 rule did not prevail in early times,- when it was usual, in state trials, to 
 select arbitrarily from a prisoner's ejdamination any part that might be pre- 
 judicial to him, though the whole examination, if taken together, 
 *538 ' might have had a different effect. (1) It has been seen *that the rule 
 
 prisoner first having been refused professional assistanee, tliough he had requested to be 
 Bllowed the aid of an attorney ; and though the confession was held technically reoeiva- 
 ■ble, Littledale, J., adverted to counsel having -been refused, and thought the case ought 
 not, for that reason, to be further pressed ; and the prisoner was acquitted. Eex v. Ellis; 
 Ey. & Mood. N. P. Rep. 433. 
 
 It has often been ruled by the criminal courts of New York, that a questioning of the 
 prisoner by the justice forms no objection to Iris examination being read. People v. 
 Smith, 1 Wheel. Cr. Cas 54, New York General Sessions, before Eiker, Recorder, Oct; 
 term, 1833. And this was allowed though the whole examination stood by way of ques- 
 tion and answer ; and one question was improper, viz : whether the prisoner had not 
 before been guilty of petit larceny. People v. Smith, before Biker, Recorder, New York 
 General Sessi<m, Oct. term. 1828/1 Wheel. Cr. Cas. 54. The same genJeral doctrine was 
 held before Holroyd, I., at Carlisle spring asHzes, 1834. 3 Stark. Ev. 58, note. 
 See the statute of New York as to this, ante. 
 
 It is not necessary that the examination should be signed by the prisoner, in order to 
 make it evidence. People v. Johnson, before Riker, Recorder, 1 Wheel. Cr. Cas. 193. 
 And Lambe's Case has always been considered a leading one in this country. Id. ; fenn^ 
 sylvania v. Stoops, Addis. 381, 383, S. P. AnU, note 185. 
 
 Where the confession is made to the district attorney, and by him reduced tb writing, 
 he may, notwithstanding, give parol evidence of it. The writing being a mere memo- 
 randum, need not be produced. Patton v. Freeman et al. Coxe's Rep., 113. See Rex v. 
 Hollingshead, 4 Carr. & Payne. 248. 
 
 Where a confession has been signed\ by a prisoner, it is read by the oflScer of the court ; 
 but where the examination has been taken down by some person, and not signed by the 
 prisoner, the person who took it down is called as a witness, and he states what the pris- 
 onel\Baid, refreshing his memory from the paper. This was done by a magistrate in the 
 case 6f Rex v. Jones (Carr. Supp. 1 3), and by a magistrate's clerk, who had taken down 
 what the prisoner said before the committing magistrate, in the case of Rex v. Watkins, 
 tried before Mr. Justice Bosanquet, at the Oxford spring assizes, 1831. See note a to thd 
 case of Rex v. Swatkins, 4 Carr. & Payne, 548. 
 
 (There are three kinds of confession : 1. A confession in opeii court of the prisoner's 
 gcdlt, which is conclusive, and renders any proof unnecessary. 8. The next highest kind 
 of confession is that which is made before a magistrate. 3. The lowest is that Which is 
 made to any other person, and requires to be sustained by proof of corroborating circum- 
 stances. The People v. Hennessey, 15 Wend. 147. A confession to a magistrate, who 
 told him beforehand that - it would he better for him to make a full confession, is not' 
 admissible. The People v. Ward, 15 Wend, 331. Statements made by the prisoner whilei 
 under arrest, are admissible if made voluntarily; Hartung v. People, 4 Park. 319 ; 18 
 How. Pr. 493. In a case of confession out of court, the corpus delicti need not be fully 
 proved ; even slight circumstances will be safflcient to sustain a conviction. The People 
 V. Badglev, 16 Wend. 53. See Ward v. The People, 3 Hill, 395, aid People v. Ruloij; 18 
 N. Y. 179! 
 
 When a confession is induced by threats or by a promise or hope of favor, held out to 
 the accused by a magistrate or by the officer making the arrest, it it is not admissible in 
 evidence against him (Tlie State v. Bostick, 4'Harring. 563 ; Commonwealth v. Taylor, 5 
 Cush. 605); and the effect is the same if the hope of favor be held out to the accused by 
 a third person in presence of the officer. Morehead v. The State, 9 Humph. 635. It is qo 
 objection to the admissibility of the confession that it is made by a servant to her mis- 
 tress (Regina v. Moore, 13 Ehig. Law & Eq. 583 ; Regina v. Sleeman, 22 Id. 606) ; or by a 
 slave to a person in whose charge he is placed by his master tied and bound (Spence v. 
 The State, 17 Ala. 193 : Seaborn v. The State, 30 Id. 15 ; The State v. Vaigneur. 5 Rich. 
 391) : but see as to confessions to a private person induced by hope. Stephen v. The State, 
 11 Geo. 325 ; Van Buren v. The State, 34 Miss. 513 ; The Commonwealth v. Morey, 1 Gray 
 (Mass.), 461 ; Jim, a slave v. The State, 15 Geo. 535 ; Wyatt v. The State, 85 Ala. 9. 
 
 An extra judicial confesaon is not sufficient to uphold a conviction, or an indictment fop 
 murder, unless the death of the murdered person is shown by other evidence.' Stringfet 
 low V. The State, 86 Miss. (4 Cush.) 157. If a confession leads to a discovery of the 
 remains of the deceased, that part of the confession leading to the discovery is admissible, 
 though made in the hope of immunity. The State v. Motley. 7 Rich. (S. C.) 387.) 
 
 (ly See, amongst many other instances, the declaration of Garnet, in hia handwriting, 
 read upon his trial for the Gunpowder Plot. In the original confession, in the Stat4 
 
446 A-dmissibility of Confessions. [ca viii. 
 
 laid down in the Queen's Case,(l) respecting admissions and confes- 
 gionSj requires not only that those parts of a conversation should be 
 received which explain or qualify the language of a confession, but such 
 also as are not connected with the confession, pi-ovided they relate to the 
 subject master of the charge. (2) And though it may, in strictness, be 
 
 Paper Office, there are letters in Sir E. Coke*s handwriting, pointing out to the officer of 
 the court what he was to read, and which produce quite a different effect from that of the 
 whole declaration taken together. 2 Jardlne Ciira. Tr. 357. 
 
 (1) 2 B. & B. 298. 
 
 (2) The ground asfigned by Abbott, C. J., that it would not be just to take part of a 
 conversation as evidenqe against a party, without giving to the party, at the same time, 
 the benefit of the entire residue, seems open to exception. Vide suprd, p. 413, 415, On 
 Admisdons. See, also, Prince -v. Samo, 7 A. & E. 634, 635 ; Supra, p. 415. 
 
 Note 152 — A witness, in giving a conversation with a prisoner, though others are 
 named and implicated in the same conversation, must give the whole, including the 
 names, exactly as it occurred, and if the other persons are on trial and cannot be affected 
 by it, it is for the judge to tell the jury so. Kex v. Hearne, 4 Carr. & Payne, 315. And 
 BO, too, of a prisoner's confession in an examination before a magistrate, it must be read 
 with the other ..names in it just as it is. Rex v. Clewes, 4 Carr. & Payne, 221. So of a 
 letter from one of the prisoners. Kex v. Fletcher, 4 Carr, & Payne, 250. 
 
 This seems to be the only natural place in the text, relating to the confessions of pris- 
 oners, where the doctrine can come in, that their confessions, as well as all others, shall 
 be taken together ; and that, when given in evidence by the proseeutiou, their confessions, 
 like those |of any other party, shall be received as evidence in favor of themselves. 
 
 To the first of these heads the whole doctrine, which we brought forward and illustrated 
 by njany cases, ante, note 1:1 8, of what shall be comprehended as parts of one entire con- 
 fession, the exclusion of declarations made at other times, and in note 122 the comparative 
 weight due to the exculpatory branch of the confession, and how it may be contradicted, 
 with other matters treated in those notes, will be found almost literally applicable ; and 
 we shall, therefore, avoid repeating thosermatters here. 
 
 That the confessions of a criminal shall be taken together, in the ordinary sense of that 
 phrase, is extremely well settled. Per M'Kean, C. J., at the close of his charge, in Kes- 
 publica V. M'Carty, a case of treason, 2 Dall. 86. This has been expressly extended to the 
 examination before the magistrate. Hicks' Case, 1 C. H. Rec. 66;} People v. Weeks. N. Y. 
 Gen. Ses., Oct. 1818, Jud. Repos. 138 ; People v. Johnson, N. Y. Oyer & Term., Edwards, 
 C. Judge, presiding. 2 Wheel. Cr. Cas. 377. Though it was said, in another case, that the 
 district attorney might read such part of the written examination as he pleased, and 
 the prisoner could not demand to have the whole read. People v. Jardine, N. Y. Gen. 
 Ses., Oct. 1818. Jud. Repos. 107, 108. Qiiere. The contrary was declared to be well settled 
 in People v. Johnsnn, supra, 
 
 But per G. J. JjI'Kean, at the close of his charge in Respublica v. M'Carty, supra: 
 " Though the whole confession must be considered together, yet the j ury may, unques- 
 tionably, on this as on every other point of evidence, believe one part and disregard the 
 other." Tu what extent this may be done, will appear by the following cases : The pris- 
 oner was indicted for secreting counterfeit money. He had confessed that it was true he 
 had counterfeit money but he received it from a good man on New River, but would not 
 name the person, and that he had destroyed nine of the dollars. Afterwards, while drunk, 
 he said he was a counterfeiter, or was accused of passing counterfeit money, which, the 
 witnesses did not agree ; but they agreed that he said he had counterfeit ra<mey, and 
 would pass as much as he pleased. Afterwards, he said he had it from one Hart, of New 
 Eiver; afterwards, that 'he had it from a good man, had never attempted to pass it, and 
 would never pass any. He showed thirteen dollars, and threw it into a mud hole. The 
 court charged that confessions, made at the same time, weie all to be taken together, and 
 the jury was to draw such inferences from them as the truth of the case warranted ; that 
 tfiey were not bound to credit the whole. On error upon a bill of exceptions, it was held 
 that the charge was too unqualified ; that no part of the confession could be rejected, 
 unless it was jjroved to be untrue; that the jury could not arbitrarily reject that part 
 which went in discharge of the prisoner, and go upon that part only which criminated 
 him. Tipton v. The State, Peck's Rep. 308. And see infra. Rex v. Jones, and Hex v. 
 lliggins. On trial of an indictment for larceny, the theft was proved, and on examination, 
 the jjrisoner stated that he had the property in his possession, but denied that he bad 
 stolen it. The two sitting aldermen (the mayor dissenting) held this pHma fade suffi- 
 cient, and that the prisoner should be put to account for the possession. The mayor told 
 the jury that, in his opinion, the whole case resting in the prisoner's confession, that 
 must be taken together, and did not make out a case. Verdict not guilty. People v. 
 Weeks, Gen. Sess., Oct. term, 1818, Jud. Repos. 1,S8. 
 
 If U prisoner, charged with murder, say in his confession, which is read in evidence 
 against him, that he was present at the murder, but took no part in the commlsaiou of it 
 
EEC. xi.J The Whole to be Ftoduced. 447 
 
 *539 *doubted whether there is sufficient reason for admitting those parts 
 of a prisoner's statement, Avhich relate to circuriistances or facts in 
 his favor, except in reference to their use for explaining or qualifying his 
 confession, yet in practice such parts are commonly received, together with 
 the other parts, for the consideration of the jury. 
 
 With respect to the effect of what the prisoner may have said favorable 
 to himself in making a confession, the same rule prevails as in the 
 *o40 *ase of *admissions ; the jury may believe one part of the prisoner's 
 statement and disbelieve another. Thus, where a prisoner was indicted 
 for stealing a piece of cloth, and it was proved that he had sold it very soon 
 after it was lost, at a place distant from the residence of the prosecutor, and 
 the prisoner's examination was given in evidence, in. which he stated that the 
 cloth was honestly bought and paid for, Park, J., observed, " that in conse- 
 quence of the prosecutor using what the prisoner had said as part of his 
 evidence, it became evidence for the prisoner as well as against him, but still 
 it was like all evidence given in any case, and it \^as for the jury to say 
 whether they believed it."(l) 
 
 It has been supposed, whei^ a prosecutor uses a prisoner's statement, 
 that he gives to the parts favorable to the prisoner more weight than 
 would properly belong to a party's assertion of his own innocence,, and. 
 
 this is evidence for him as well as against liim ; .but the judge will not direct an aqquittal,) 
 as the jury may believe one part of the confession and disbelieve another. However, if it 
 is meant to be charged that the prisoner did more than is stated in the confession, there 
 ought to be some evidence to show that. Rex v. Clewes, 4 Carr. & Payne, 231. 
 
 On the trial of a larceny of a ram, proved to have been stolen and traced to the prisoner's 
 house, the carcass being found concealed in his bed, where he was himself; it came out, 
 also, in the evidence for the prosecution, that he there said his brother had brought the 
 carcass. Parke, J., told the j ary they were not bound to take the exculpa,tory part of the 
 confession as true, merely because it was given in evidence, but shonld Say, looking at 
 the whole case, wliether they thought the prisoner's statement consistent with the other 
 evidence. Rex. v. Steptoe, 4 Carr. & Payne, 3&7. 
 
 How far a declaration, made by a prisoner, shall be received in his own favor, on the 
 ground that the prosecution have iised it against him, may be gathered from the follow- 
 ing cases, in connection with which see Tipton v. The State, supra. On trial of an 
 indictment for child murder, the prosecution proved by some witnesses that the prisoner 
 confessed she cut the child's throat, and others said she declared it was stillborn. Her 
 counsel insisted on an acquittal being directed, and cited a. case before Garrow, B., in 
 which, on trial fir larceny, in addition to the prisoner's possession of the goods stolen, his 
 statement before the magistrate was put in that he had bought the goods ; upon which 
 an acquittal was directed. Bosanquet, Sergt., said he should hold the same thing in such 
 a case. If a prosecutor uses the prisoner's declarations, he must take the whole together ; 
 and if there be rio other evidence incompatible with it, the declaration so adduced must 
 be taken as true. But. if, after ihe whole of the statement of the prisoner is given in evi- 
 dence, the prosecutor is in a rituation to contradict any part of it, he is at liberty to do so ; 
 and then the statement of the prisoner, and the whole of the other evidence, must be left 
 to the jury precisely as in any other case where one part of the evidence is contradictory 
 to another. And he took that course with this case. Rex v. Jones, 2 Carr. & Payne. 639. 
 A case precisely like the one decided by Garrow, B., came before Parke, J. The prisoner 
 was proved to have possessed and sold the article stolen shortly after the felony commit- 
 ted ; and the |.rosecutor proved his examination, wherein he said the article had been 
 honestly bought and paid for. Parke, J., said the declaration thus became evidence for 
 the prisoner; but he put it to the jury whether they would believe it, and they found him 
 guilty. Rex v. Higgins, 3 Carr. & Payne, 603. See. also, the cases to the same point, 
 cited ante, 117, viz : Rex v. Steptoe. 4 Cam & Payne, 3M7 ; Smith v. Blandy, Ry. & Mood. 
 N. P Rep. 357 ; Cray v. Hall, cited in Ry. & Mood. N. P. Rep. 258 ; Remmio v. Hall, Mann. 
 Dig. 464. also cited and explained in Smith v. Blatidy ; People v. Scott, N. Y. Gen. Sess., 
 Sept. term, 1818.' Jud. Repos. 50 ; and Rex. v. CleWes, 4 Carr. & Payne, 321. 
 
 (I) R. V. Higgins, 3 C. & P. 604. The prisoner was found guilty. The statement might 
 have bfeen adduced by the prosecutor for the purpose of identifying the prisoner as the 
 person selling the cloth. See R. v. Steptoe, 4 C. & P. 397. The point may not unfre. 
 quently arise, where a prisoner admits killing a man, but at the same time states facts, 
 which, if true, would reduce the crime to manslaughter; and, in such a case, different 
 questions will arise, according as there is, or is not, other evidence produced. See H» v. 
 Clewes 4 C. & P. 226 ; R. v. Qreenaore, 8.C. & P. 85. 
 
448 AdtnisstbUityof Confessions. [ch. viii. 
 
 that the facts contained- in such favotanble p&Pt of the' prisoner's 'statement, 
 are to be considered as established until disproved. (1)' It may be doubted, 
 however, whether these opinions are well founded, when it is considered 
 that the original object of introducing the whole of a prisoner's statement 
 is merely to guard against any misapprehension of the prisoner's meaning,j 
 as to the terms which he has used in. his, confession of guilt. (2) It is cle£^l;■ly 
 competent for the- prosecutor to contradict, the parts of a prisoner's state- 
 ment which are favorable to him." (3) , 
 
 Staterhent inculpating another. If the statetnent of an accused party is, 
 given in evidehce, wherein he inculpates atiother person by name, the whole 
 of the statement, including thfe name of such person, must be giVen, but 
 the judge will caution the jury that the Statement is not evidence against 
 
 such person, unless it was made in his pi-esence. (4) ' 
 *S41 *A confession may, in somfe caSeB,'be collected or inferred from the 
 conduct and denieanor of a prisoner, Oh hearing a staternent affecting 
 himself And such evidence is admissible, though the statement be made in 
 the presence of the prisoner by his wife, and whether h6 answer^ or npt.(5) 
 As suteh statements frequently contain much hearsay and other objection- 
 able evidence, and as the demeanor of a person upon hearing a criminal 
 charge against' himself is liable' to great' misconstruction, evidence of this' 
 description ought to be regarded with much caution. It has been decided 
 that the deposition of a witness, or the exaniination of another prisonei*,* 
 taken in a criminal case before a magistrate, is not admissible in evidence, 
 merely because the party affected by it was present, or might have had an 
 opportunity of cross-examining or of i commenting on the evidence. The 
 party is prevented from interposing at his will and pleasure, and, thereforcj 
 the same inference ought not to be drawn from his silence or his demeanor, 
 as is frequently done in the case of conversations. (6) 
 
 Eff'ect of confession. A prisoner's confession, is sufficient ground to 
 warrant a conviction, although there is no corroborating proof of his 
 having committed the offense with which he is charged. (7) But a con- 
 
 (1) See R. V. Jonea, 3 C. & P. 629. It was there said by Bosanquet, Sergt., that if there 
 is not evidence in the case, independently of the prisoner's statement, which is incompati- 
 ble with the parts of it favorable to the prisoner, these must be taken to be true. See 
 Id., a ease before Garrow, B. A similar opinion appears to have been expressed by 
 Littl'edale, J., in K. v. Clewes, 4 C. & P. 336. 
 
 (2) See B. v. Lloyd, cit. 3 Kuss., Cr. & M.; by Greaves, 868. 
 . (3) By Bosanquet, Sergt., in R. v. Jones, 3 O. & P. 639. 
 
 (4) R. v.iHearne, 6 C. & P. 315 ; B. v. Clewes, Id. 831 ; R. v. Fletcher, Id. 250 ; S. C, 1 
 Lew. C. C. lO'Z; R. v. Walkley, 6 C. & P. 175 ; Hall's Case, 1 Lttw. C. C. 110; Foster's 
 Case, Id. But see Mandsley's Case, Id., and Barstow's Case, Id., where Park, J., ruled 
 otherwise, and said he did not like the decision in B. v. Fletcher {supra), as he did not 
 think it the fair way; In R. v. Walktey (ut supra), however, Gurney, B., said the point 
 had been much considered by the judges. 
 
 On a joint presentment of two persons for adultery, the admission of one is admissible, 
 but is not evidence against the other. Frost v. The Commonwealth, 9 B. Mon. 368; 
 Sheffield v. Sheffield, 8 Texas, 79. So, the confession of an accomplice not made in the 
 presence of the prisoner, is inadmissible on an indictment for a felony, notwithstanding 
 a conspiracy is shown between them. Hunter v. Commonwealth, 7 Qratt. 641. Nor is 
 one of two persons jointly indicted for a felony, a competent witness for the other, 
 though tried separately. Mclntyre v. The People, 5 Selden, 38. 
 
 (5) R. v. Bartlett, 7 C. & P. 833 ; B. v. Smithies. 5 Id. 332. 
 
 (6) B. v. Appleby, 3 Stark.; B. 83 ; Melen v; Andrews, M. & M. 836 ; Turner's Case, 1 
 Moo. C. C. 847. In R. v. Kdmunds (6 C, & P. 164), Tindal, C. J,, received a statement 
 upon oath, made by a deceftsed person on the occasion of a summary conviction in the 
 presence of a prisoner, who had made answer to the statement. He said he received it, 
 not as a deposition, but only as a statement which had produced an auswer from the 
 prisoner, like any conversation. 
 
 (7) In R. V. iBldridge (B. & R. C. C. 440), the court thought therewas sufficient evidence 
 to oonlirm the confession. In R. v. Falkner (R. & B. C. C. 481), the only other evi- 
 dence was, that the prisoner had sent a message to the party alleged to have been robbed, 
 
SBO. XI.] I^ect of Confession. 449 
 
 fession is obviously not conclusive evidence against a prisoner, and -when 
 it involves matter of law as well as of fact, is to be received with more 
 
 than usual caution. (1) It would seem, also, upon principle, that 
 *542 some proof must be given that the *offense which the prisoner 
 
 confesses to have committed, has been, in fact, committed. (2) 
 Upon an indictment for bigamy, a deliberate admission made by the 
 prisoner, that he had been lawfully married to the first wife, has been 
 held(3) to be sufficient evidence to establish that fact, without further proof 
 of the actual marriage, even though the first marriage took place in a 
 foreign country; in which case, in the absence of such admission, it would 
 be necessary to prove that the marriage was legal. But in a later case, (4) 
 where there was reason to suppose that the prisoner might, for a particular 
 purpose, have stated an untruth, it was ruled that an admission by him, 
 ■that he had married two wives, and detailing the circumstances of the first 
 marriage in Ireland, was not, of itself, suffiaient. 
 
 ; ' In all such cases there can be no question that such an admission is 
 receivable, and the only question will be as to the degree of weight to be 
 attached to it, which must, of course, depend upon the circumstances in 
 each particular case. 
 
 It has been considered necessary in all cases, previous to receiving 
 a confession in evidence, to inquire whether it has been voluntary. 
 
 and who did not appear, to prevent his appearance. In R. v. White (E. & R. C. C. 508), 
 ■and R. v. Tippet (Id. 509), no person could swear that the property had been actually 
 stolen, though there was strong confirmatory evidence that the theft was probable ; the 
 report states, tiiat most of the judges were of opinion, that without the confirmatory 
 evidence the Jury might have ^convicted on the prisoner's confession. See also R. v. 
 Tend. 6 C. & P. 176 ; R. v. Fellows, 3 Rubs, Cr. & M., by Greaves, 133. 
 
 (1) Vide supra, Admissions of matters ot law. See Philps' Case, 1 Mo. C. C. 371 ; 
 where a prisoner's statement, as to the ownership of a vessel, was negatived by the Ship- 
 registry Act. 
 
 (3j| In Wheeling's Case (Leach, 311, n. a), it is stated to have been ddlermined by Lord 
 Kenyou, C. J., that a prisoner might be convicted on his own confession, though totally 
 uncorroborated by any other evidence ; but this case is too briefly reported to be relied 
 upon. See Gi:eenl. Ev. § 317, n. And see R. v. TufT, 5 C. & P. 167. In R. v. Edgar (3 
 Bubs. Cr. & M- by Greaves, 836), Patteson,. J., is reported to have said: " Could a man be 
 convicted of murder on his confession alone without any proof of the person being killed ? 
 I doubt whether he could." In the United States the prisoner's confession, when the 
 carpus delicti is not otherwise proved, has been held insufficient for his conviction. See 
 Greenl. Ev. i^ 217. Instances have occurred, in cases where a crime has caused great 
 public excitement and notoriety, that persons have actually delivered themselves up to 
 the officers of justice upon a self-accusation of having perpetrated the crime ; though 
 their innocence has afterwards been proved beyond all question. 
 
 Note 153. — It was held, in one case before the General Sessions in the city of New 
 York (Radcliif. Mayor, presiding), that even a full confession of guilt before the magistrate 
 was insufficient to warrant a conviction, there being no other proof of the corpus delicti, 
 i. o , that a felony had been committed ; which it was said must be shown before the exam- 
 ination could be read. Hope's Case, 1 C H. Rec. 150. But in another and subsequent case 
 .in the same court. Dec. 1832, before Riker, Recorder (1 Wheel. Cr. Cas. 107, 108), the doc- 
 .trine in the text is recognized ; though it is said to be very desirable that some evidence 
 other than the mere confession should be adduced. And in Hall's Case (Macnally 40), 
 it was held that a conviction may follow on oral evidence of such confession, the magis- 
 trate having omitted to commit it to writing! and that a conviction may follow though 
 it ba wholly uncorroborated. 
 
 (On a trial for murder, the corpus delicti must be proved by other evidence. String- 
 fellow V. The State, 26 Miss. (4 Cush.) 157. See also Guild's Case, 5 Halst. 163, 185 ; Long'a 
 Case, 1 Hayw. 584 ; 18 N. Y. 179.) 
 
 (3) R. V. Newton, 3 Mo. & R. 503 ; S. C. ut R. v. Simmonsto, 1 C. & K. 164 ; before 
 IWrightman, J. (after consulting vrith Cresswell, J.) See, also, Truman's Case, 1 East P. 
 C. 476 ; R. v. Upton, Gloucester Spring Ass. 1839, cit. 1 Russ., C. & M., by Greaves, 218. 
 Such an admission may be rebutted by proof that the first marriage was void. Asxon., ^^ 
 cit. 3 Stark. Bv. 894, n. m. "7^ 
 
 ■ ■, (4) E. V. Flaherty, 3 C. & K. 783, before Pollock, C. B. 
 
 (The confession is not enough, the marriage must be proved. The People v. Humph- 
 rey, 7 John. 314 ; Gahagan v. The People, 1 Parker Or. 378.) 
 Vol. L 57 
 
450 Admissibility of Oon/essidns. [ch. tiii. 
 
 *543 The *usual questions are, whether the prisoner has been told that it 
 would be better for him to confess, or worse for him if he did not 
 confess, or whether any language to that effect has been used. "The 
 object of the rule relating to the exclusion of confessions is, to exclude all 
 confessions which may have been procured from the prisoner by leading 
 him to suppose that it will be better for him to admit himself to be guilty 
 of an offense which he really never oomlmitted."(l) 
 
 The eases, probably, are rare in which such unfounded self-accusations 
 occur, or at least where a jury would be misled by them ; and certainly the 
 rule occasions, in a multitude of instances, the escape of the guilty. There 
 is a general feeling, not unfounded, that the rule has been extended much 
 too far, and been applied in some cases where there could be no reasonable 
 ground for supposing that the inducement offered to the prisoner was 
 sufficient to overcome the strong and univei'sal motive of self-preservation. 
 The doctrine has also been attended with much iuconvenience, in conse- 
 quence of the nice distinctions, and numerous and sometimes contradictory 
 decisions to which it has given rise. (2) 
 
 Admissihility of confession qu^tion for judge. The question whether a 
 confession has been made under ?uoh circumstances as to be admissible In 
 evidence, being the subject of a preliminary inquiry, is for the decision of 
 
 the judge, and not of the jury. (3) And where a confession has been 
 *544 admitted, and it afterwards turns out that it *was not properly 
 
 receivable, the judge will strike out the evidence from his notes, 
 and direct the jury to dismiss it from their consideration. (4) 
 
 Nature of inducement that will exclude confession. The general rule 
 upon this subject may be thus stated : A promise of benefit or favor, or 
 threat or intimation of disfavor, connected with the subject of the charge, 
 held out by a person having authority in the matter, will be sufficient to 
 exclude a confession made m consequence of such inducement, either of 
 hope or fear. The prosecutcir,(5) or the prosecutor's wife,(6) or attorney, or 
 
 (1) By Littledale, J., in R. v. Court, 7 C. & P. 487. See, also, Eyre, C. B., in Warwick- 
 BhaU's Case, 1 Lea, C. C. 263, 264. 
 
 Note 154.- — Confessions, which are ohtained from the accused by his being improperly 
 operated upon, are, as will be seen by almost all the cases we shall have occasion to cite 
 upon the question of their admissibility, incompetent e\!idence ; and should, as such, be 
 entirely withheld by the court from the jury. They are to be received or rejected by the 
 court upon a preliminary inquiry into the circumstances under which they are obtained. 
 Bell's case, Macnally, 43 ; Commonwealth v. Chubbook, 1 Mass. Rep. 144 ; The same v. 
 Knapp, 10 Pick. 477, 496 ; Rex. v. Nate, cited Chetw. Supp. to Burn, J. 101 ; 6 Petersdorf, 
 82. And on the other hand when received, the jury cannot reject them as incompetent, 
 though they may disregard them as incredible, from the circumstances under which they 
 were obtained. Commonwealth v. Knapp, 10 Pick. 477, 496, 497. 
 
 We are aware that the cases have fluctuated upon the point whether these questions of 
 competency shall go to the court or jury, some allowing that the latter is the course, 
 especially where there is doubt (Williams' Case, 1 Cit. H. Rec. 149 ; Bowerhan's case, 4 Id. 
 136, 188 ; Stage's Case, 5 Id. 178; per Kirkpatrick. C. J., in Aaron's Case, 1 South. 240 ; 
 Commonwealth v. Dillon, 4 Dall. 110) ; others confining them to the court (Milligan and 
 Welchman's Case, 6 C. H. Rec. 69 j Commonwealth v. Kn»pp, 10 Pic. 477; 496, 497 ;) inso- 
 much that a very able tribunal, not long since, considered the question a vexed one. 
 State V. Guild, 5 Halst., 184, 185. It will be found, however, ordinarily to have been 
 .treated like a point of competency in any other case, and, therefore, to have been passed 
 upon by the court. 
 
 (2) See B. v. Row, R, & R. Or. Ca. 153 ; R. v. Thompson, Leaoh, 292 ; R. v. Cass, Leach, 
 293, n. See, also, on this subject Bentham's Rationale of Judicial Evidence, B. v. oh. vl, 
 sect, iii ; Ed. Rev. Vol. 40, p. 166, 169. 
 
 ' (3) Supra, Ch, 1. 
 
 (4) R. v. Boswell, Car. & M. 584 ; R. v. Garner, 18 L. J., (N. S.) Mag. Ca. 1. 
 
 (5) R. V. Thompson, 1 Lea. C. C. 291 ; R. v. Cass, Id. 39»VB. v. Jones, B. & R. 152 ; R. v. 
 Jenkins, Id. 492. 
 
 (6) R, V. Upchuroh, R. & M. C. C. B. 465. 
 
SBC. XI.] Inducermnt held Out. 451 
 
 the prisoner's master or mi8tress,(l) or a constable, or a person assisting 
 him m the apprehension or custody, (2) or a magistrate acting in the busi- 
 ness, or other magistrate, has been respectively looked upon as having 
 authority in the matter. (3) And the same principle applies, if the induce- 
 ment has been held out by a person without authority, but in the presence 
 of a person who has such authority, and with his sanction, either express or 
 implied. (4) Thus, in the case of The King agt. Pountney,(5) a prisoner, 
 being in the custody of a constable upon a charge of felony, was taken by 
 the constable to an inn, where the innkeeper, in the hearing of the con- 
 stable, held out an inducement to confess, whereupon the prisoner confessed 
 in the constable's hearing ; Alderson, B., though he received the evidence, 
 said he entertained a strong opinion against its admissibility, and that, if it 
 had been necessary, he would have reserved the point for the opinion of the 
 judges. (6) In the later case of The King agt. Taylor, (7) the prisoner, who 
 
 (1) R. V. XJpchurch, vt mpra; E. v. Taylor, 8 C. & P. 738 ; R. v. Hearn, Cor. & Mo. 109 ; 
 E. V. Hewett, Id. 534 
 
 (2) R. V. Morton, 2 Mo. & R. 514 ; R. v. Swatkins, 4 C. & P. 548 ; K. v. Mills, 6 C. & P. 
 146 ; R. V. Shepherd, 7 C. & P. 579. A woman placed with a female prisoner by a con- 
 stable, to prevent her escaping, is a person in authority for this purpose. R. v. Enoch, 5 
 C. & P. 539. 
 
 (3) R. V. Drew, 8 C. & P. 140 ; R. v. Cooper, 5 C. & P. 535. 
 
 (4) See R. v. Drew, 8 C. & P. 140 ; R. v. Laugher, 2 C. & K. 225 ; R. v. Simpson, 1 Moo. 
 C. C. 410 ; R. V. Garner, 18 L. J. (N. S.) Mag. Ca. 1. 
 
 (5) 7 C. & P. 303. 
 
 (6) The prisoner was acquitted. ' 
 
 (7) 6 C. & P. 633. 
 
 Note 155. — It wUl be seen by the following cases what inducement is or is not sufBcient 
 to exclude an extra-judicial confession, made either to the person offering the inducement 
 or to another, and to what kind of prosecution the objection applies. 
 
 The captain of a vessel said to one of his sailors, suspected of having stolen a watch : 
 ". That unfortunate watch has • been found, and if you do not tell me who your 
 *545 partner was, I will commit *you to prison as soon as we get to NewQastle ; you are 
 a damned villain, and the gallows is painted in your face ; " on which the sailor con- 
 fessed. Held not admissible against him. Rex v. Paratt, 4 Carr. & Payne, 570. So, 
 where a man said to an accused boy, if you will confess you will probably get clear. 
 State V. Guild, 5 Halst. 163, 167, 168. So where, in the presence of the prosecutor, one 
 stranger told the prisoner if he would confess, being in custody, his confession could not 
 be used against him ; and another stranger told him, that being young, if he would 
 confess, it would be more to his credit. State v. Roberts, 1 Dev. 259. So, where the sur- 
 geon said to a girl who was charged with administering poison with intent to murder, 
 " You are und«r suspicion of this, «nd you had better tell all you know." Rex v. 
 Kingston, 4 Carr. & Payne, 387. So, where the prosecutor said to the prisoner, on his 
 apprehension, " he only wanted the money, and if the prisoner gave him that, he might go 
 to the devil ; " in consequence of which the prisoner said, on delivering part, that it " was 
 all he had left ;" a majority of the judges held such evidence not receivable. Rex v. 
 Jones, C. C. M. & R. 152 ; S. C. cited, 1 Burn J. 565. So, where on a stolen bank bill being 
 found on the prisoner, the prosecutor observed : " Unless you give a more satisfactory 
 account, you shall be taken before a magistrate ; " and the prisoner then confessed having 
 stolen the bill ; the court were of opinion that this amounted to a threat to prosecute ; 
 and therefore the confession was inadmissible. They said he understood that his confes- 
 sion would save him from being taken before a magistrate. Eex v. Thompson, 1 Leach, 
 291. While the prisoner was in custody on a charge of burglary, he said to the officer 
 having him in charge : " If you will give me a glass of gin I will tell you all about it." 
 The officer gave him two glasses of gin, and he made a confession of his guilt. But this 
 was held inadmissible. Nor would the court allow a subsequent confession before the 
 magistrate to be read, the manner of the first confession not appearing to him, and he, of 
 Sburse, having taken no pains to remove its influence. Rex v. Sexton, Cor., Best, J. ; 
 Chetw. Supp. to Burn J. 103 ; S. C. 6 Petersd. 83. 
 
 But mere advice to tell the truth, after a promise so to do, will not exclude the confes- 
 , Bion, Thus where, after the prisoner had offered to confess and tell the truth of a murder, 
 the witness advised her so to do ; and then, going out of the house to confess to the wit- 
 ness, a rude voice followed (in what terms the case does not state^. The confession was 
 held admissible. But the court said : " The evidence of such confessions is liable to a 
 thousand abuses. They are made by persons generally under arrest, in great agitation 
 and distress, when each ray of hope is eagerly caught at, and frequently under the delu- 
 sion, though not expressed, that the merit of a disclosure will be productive of personal 
 
452 AdmissiMlity of Confessions. [ch. viii. 
 
 safety. To disclose tie confession is odious as a breach of confidence, wliich it is at all 
 times. The confession is made, in want of advisers, under cjrcumstances of desertion by 
 the world, in chains and degradation, with spirits sunk, fear predominant, hope fluttering 
 around, purposes and views momentarily changing, a thousand plans alternating, a soul 
 tortured with anguish, aud difliculties gathering into a multitude.' How easy is it for 
 the hearer to take one word for another, or to take a word in a sense not intended by the 
 speaker ! And for want of an exact representation of the tone of voice, emphasis, counte- 
 nance, eye, manner and action of the one who made the confession, how almost impossible 
 is it to make a third person understand the exact state of his inind and meaning. For 
 these reasons such evidence is received with great distrust, and under apprehension^ for 
 the wrong it may do. Its admissibility is made to depend on its being free of the suspi- 
 ciou that it was obtained by any threats of severity or promises of favor, and of every 
 influence — even the minutest. State v. Fields & Webber, Peck's I^ep. 140. 
 
 Nor will the confession which follows be excluded even where undue influence is 
 exerted, if it be left in doubt whether it had no kind of effect on the mind of the prisoner. 
 Francis Knapp having been indicted as principal, with Joseph 3. Knapp and G. C. as 
 accessories, and being on trial for the murder of J. W., the prisoners' confessions were 
 offered in evidence. The facts upon vrhich their admissibility arose were stated by the 
 ■ Rev. H. Coleman, thus : " I went to the prisoner's cell with his brother, N. P. Knapp. 
 K. P. said : ' Well, Frank, Joseph has determined to make a confession, and we want your 
 consent.' The prisoner said, in effect, he thought it hard or not fair, that Joseph should 
 have the advantage of making the confession, since the thing was done for his benefit ; 
 ' I told Joseph, when he proposed it, that it was a silly business, and would only get xis 
 into difiiculty.' N. P., as I supposed to reconcile Frank to Joseph'^ confessing, told him 
 that if Joseph was convicted there would be no chance for him ; but if he (Frank) was 
 convicted, he might have some chance for procuring a pardon. N. P. then appealed 
 *546 to me *and asked me if I did not think so. I told him I did not know. I was 
 unwilling to hold out any improper encouragement." It was now objectied that 
 any farther confessions would be inadmissible, on the ground that a hope of pardon was 
 held out ; aud Wilde and Morton, J's (dissentiente, Putnam, J.), were at first of this 
 opinion ; but all the j udges at this stage supposed that the counsel for the prosecution 
 intended to prove the prisoner's assent. The counsel then disavowed any such object, 
 and stated that the ulterior testimony would be, that he refused his assent to Joseph's 
 confessing. The court then said that, such being the case, it was obvious that the sug- 
 gestions made had, in fact, exerted no influence over the prisoner's mind ; and being free 
 from influence, his confessions were, of course, equally admissible as if the attempt had 
 never been made. The witness, Mr. Coleman, then answered that no assent was given 
 or refused, which, the court said, left the matter in doubt whether the subsequent confes- 
 sions were caused by the inducement held out ; that it lay with the t)ri8oner to bring his 
 confession within the exception. Commonwealth v. Knapp, 9 Pick. 496, 500 to 510. 
 
 The distinction whether the person who seeks to influence the confession held any 
 authority or connection with the prosecution, has not always been strictly attended to. 
 It has been recently noticed with more particularity than usual in England, and the fol- 
 lowing cases give the result : The confession of a prisoner to one person is evidence, 
 though induced by another, if that other had no »uthority. Thus, where a prisoner had 
 made certain confessions to her attending surgeon ; some time after, a woman present 
 saJti to her she had better tell alii On objection. Park, J., and HuUock, B., said that as 
 the surgeon held out no inducement, and the woman had no sort of authority, holding no 
 oflSce of constable, or any other, nor being prosecutrix, it must be presumed the confes- 
 sion was free and voluntary. The case would be different if the inducement had come 
 from any one holding any oflSce or authority. No confession followed the advice of the 
 woman immediately ; but some time after, to another person, the prisoner, without any 
 inducement held out, confesses. The two judges had not the least doubt that the con- 
 fession was admissible. Rex v. Gibbons, 1 Carr. & Payne, 97. To this case the learned 
 reporter adds, in a note. Rex v. Hardwicke, before Wood, B., at Nottingham, 1811 (cited 
 also in the text), where the prisoner's confession before a magistrate, made after the con- 
 stable's wife had told him lie had better confess, was held admissible ; -which, he adds, 
 could only have been on the ground that the constable's wife was a person having no 
 authority or influence. " I believe," he adds, " no case has decided that a confession to a 
 person in no authority, after threat or promise by thai person, is admissible in evidence. 
 Rex V. Dunn, infra aec. And in the subsequent case of Rex v. Tyler & Finch (1 Carr. & 
 Payno, 139), the prisoner Finch, being locked up alone in a room, was told by o man that 
 the other prisoner had told all, and he had better do the same, to save his nick ; and on 
 this Finch confessed to the constable. On objection, HuUock, B., held, that as the promise 
 (if any) was by a person wholly without authority, tho subsequent confession to the cons- 
 table, who had held out no inducement, must be considered as voluntary, and was therefore 
 evidence. See Milligan and Welcliman's Case, stated ante, wherein it was held that a 
 confession to a third person, made after the person who arrested the prisoner had obtained 
 a confession by undue influence, might bo received, if the person who arrested was absent. 
 Q;itere. On trial for stealing a hymn-book, one Fieldhouse testified that, on the prisoner 
 
SBa XI.] Inducement hdd Out. 453 
 
 offering to sell the Ijook to Mm, he told the prisoner he had better tell where he got it. 
 Bosanquet, J., stopped the witness, and said : " You must not tell what he said." Scott, 
 for the prosecution, said the witness was not a person in any authority. Bosanquet, J., 
 said, any person offering an induciement would exclude a confession to that person. If 
 made to another, it often became a nice question. Eex v. Dunn. 4 Carr. & Hayne, 543. 
 
 The prisoner being in custody of constable A., constable B. came in, and A. left, when 
 the prisoner immediately confessed to B. Held, that to prevent collusion between consta- 
 bles in such a case, A. should be called to negative all inducements before the confession 
 should be received, as B. did not caution the prisoner not to confess. But it appearing, 
 on further examination, that the prisoner was not then detained as an accused party, but 
 merely as an unwilling witness, testimony was received without putting the prosecution 
 to call the other constable. Rex v. Swatkins, 4 Carr. & Payne, 548. 
 
 Whether one or more of the j ury of inquest before the coroner, taking the accused boy 
 aside and telling him he had better confess the whole truth, shall be considered undue 
 
 influence? Qmre. State v. Aaron, 1 South. 231, 240. 
 *547 *A confession, obtained by a promise from one concerned in the prosecution, that 
 the prisoner shall be a state's evidence, is inadmissible. Thorn's Case, 4 C. H. Rec. 
 81, 85, 86. So a confession made under a notion derived from u magistrate of being 
 admitted a witness for the crown. Per Lord Mansfield in Rex v. IJudd, 1 Leach, 115. 
 So of any disclosure made to the authority examining, or to the state's attorney, under 
 such circumstances that the prisoner considered hinjpelf a witness (The State v. Thomp- 
 son, Kirby, 345), or when he applied to the state's attorney to be admitted as a witness ; 
 and this on the ground of policy. The State v. Phelps, Id. 282. So semb. of the testimony 
 given by an accomplice received to testify on motion, on account of the implied promise 
 of pardon. Per Duer, Circ. Judge, People v. Whipple, § Cowen's Rep. 707. But in 
 Commonwealth V. Knapp (10 Pick; 477, 489 to 495), where an accomplice was promised 
 by the attorney-general, that if he would testify, he should not be prosecuted, and he 
 promised to testify and make a full disclosure, but afterwards refused to testify, his con- 
 fession was received as evidence against him. So woijld be the confessions of a prisoner, 
 while be is persuading any one to use their influence .to have him examined against his 
 associates. The State v. Thompson, Kirby, 345. 
 
 To work ah exclusion, the influence must have arisen from the assurance of some tem- 
 poral advantage. Urging and obtaining confessions upon religious considerations will 
 not have that effect. That question was mooted in the following case. The prisoner was 
 suspected of setting fire to an out-house. Her mistress pressed her to confess, and told 
 her, among other things, if she would repent and acknowledge her guilt, God would 
 pardon her ; but she concealed from her that she would not forgive her herself. She 
 confessed. The next day another person, in her mistress's sight, though out of her hear- 
 ing, told her her mistress said she had confessed, and drew from her a second acknow- 
 ledgment. Lord Eldon, C. J. (C. P.), allowed the confessions in evidence, and the prisoner 
 was convicted. The jury on having the confessions offered to them, said they thought 
 the first had been made under the hope of favor here, and the second under the influence 
 of having made the first. On a case reserved, the judges held these points were not for 
 the jury ; but if Lord Eldon agreed with the jury, which he did, the confessions were not 
 receivable. But many of them thought the expressions not calculated to raise a hope of 
 favor here ; and if not, the confessions were evidence. Rex v. Nate, cited Chetw. Supp. 
 to Burn, J., 101 ; 6 Petersd. 83. 
 
 This question of religious influence was afterwards directly decided. The prisoner being 
 in custody on a charge of murder, requested the attendance of a chaplain, who hud 
 several interviews with himy and repeatedly urged the importance of his confessing 
 himself to God ; but he was not sure but that he might, at some time have spoken of 
 confession generally, without saying to God. He also urged on the prisoner the importance 
 of making temporal reparation for the injuries he had committed, and satisfying the 
 violated laws of the country. These things were all urged upon religious considerations, 
 and on assurance that such confessions, &c., would be of religious benefit, and tend to the 
 prisoner's acceptance with God. The prisoner appeared to be strongly impressed. And 
 he sent for the jailor, and aftfr being admonished by him, that what he said- would be 
 used as evidence against him, he confessed the murder. He also confessed to the mayor, 
 after the same admonition from him ; and being warned to say nothing but what was 
 right. Held, by the twelve judges, except Hullock, B., absent, that the confession was 
 admissible. They assigned no reasons, but the ground evidently was as stated in the 
 marginal note, that " a confession made in consequence of persuasion by a clergyman, not 
 with any view of temporal benefit, is admissible." The counsel for the crown insisted 
 that if the persuasion would render the confession inadmissible, yet the impression was 
 countervailed by the warning from the mayor. The same thing was contended for at the 
 trial, where Littledale, J., presided; and he refused to put it on that ground, saying any- 
 thing the mayor said could not do away the effect which the chaplain had produced on 
 the mind of the prisoner. Rex v. Gilliam, Ry. & Mood. Cr. Cas. 186 to 205. 
 
 By undue moans of obtaining a confession, the law generally alludes to illegal influence. 
 The abstract objection that the confession was made while the prisoner was in jail, or 
 
454 Admissibility of Confessions. [ch. viii. 
 
 was servant to the prosecutor, made Ms confession, while in custody^ in the 
 presence of the prosecutor's wife, who was present when the inducement 
 
 was made, and expressed no dissent; and Patterson, J., said the mis- 
 *548 tress of the *prisoner, who was present at the time of the inducement, 
 
 must be understood, as she expressed no dissent, to have sanctioned 
 the inducement ; and the inducement must be taken as if held out by the 
 wife, and coming from a person in authority over the prisoner ; for this 
 reason only the evidence was rejected. 
 
 But a confession made in consequence of an inducement held out by a 
 person who has no authority, and cannot reasonably be supposed to have 
 any, is not liable to the suspicion or presumption of being untrue. It is not 
 likely that an inducement, held out by a person having no authority, would 
 have the effect of prevailing on a prisoner to make an untrue confession to 
 him ; on the contrary, he would, probably, be particularly cautious as to what 
 he stated to such person to his own disadvantage. It has been decided, 
 therefore, that a* confession made to a person who held out an inducement, 
 but who had no authority whatever in the matter, is not to be excluded by 
 reason of such inducement, fn the case of The King agt. Row,(l) where 
 some of the prisoner's neighbors, who had nothing to do with his apprehen- 
 sion, prosecution, or examination, had admonished the prisoner to tell the 
 truth and consider his family, it was held, that a confession was receivable, 
 on the ground that the advice to confess was not given or sanctioned by 
 any person who had any concern in the business. This case was followed 
 by other decisions to the like effect. (2) Some doubt was expressed upon 
 this subject in the case of The King agt. Spencer ;(3) a statement was there 
 offered in evidence, which a prisoner had made to a person, who, without 
 
 any authority of any kind, told him it would be better for him to 
 *549 confess ; Parke, B., said, he would receive *the evidence if pressed, 
 
 but that there was a difference of opinion among the judges, whether 
 
 otherwise confined in a legal way, though for the very crime confessed, has never heen 
 recognized as an objection, but expressly denied. Rex v. Derrington, 2 Carr. & Payne, 
 416 ; People v. M'Collister, before Eiker, Recorder, 1 Wheel. Crim. Gas. 393. And it was 
 denied, though the prisoner was a boy only fourteen years of age, who had been confined 
 without food nearly a whole day. Rex v. Thornton, Ry. & Mood. Cr. Cas. 27. 
 
 Nor will the confession be excluded, though disclosed by a palpable breach of confi- 
 dence on the part of an officer, the prisoner being in jail, under his charge. Thus, where 
 a prisoner in jail on a charge of felony, gave a letter, addressed to his father, to the turn- 
 key, who, on the prisoner's request, and before it was delivered, promised to put it in the 
 post-office, but in fact sent it to the prosecutor ; yet the letter was held admissible in evi- 
 dence against the prisoner; ruled by Qarrow B., who said the same thing had been ruled 
 before by Gould, J. Rex v. Derrington, 2 Carr. & Payne, 418. 
 
 (A slight inducement held oUt by the officer having the prisoner in custody, will render 
 the conifession inadmissible, such as is implied in this remark : " If you are guilty, you 
 had better own it." State v. York, 37 N. H. 175. But the inducement must relate to the 
 criminal charge itself, or it will not render the confession inadmissible. State v. Went- 
 worth, 37 Id. 196. It is no objection to the admissibility of a confession that it was made 
 to an officer while In his custody. People v. Rogers, 18 N. Y. 9 ; Hjtrtung v. People, 4 
 Park. Cr. 319.) 
 
 The objection does not apply to a civil prosecution for the recovery of damages, though 
 the injury for which the action is brought be such that on trial of an indictment for the 
 injury, the confession would be excluded. Thus in a civil prosecution for a criminal fraud 
 to recover damages, the confessions of the defendant (objected to because obtained by a 
 promise of pardon from the district attorney) were offered in evidence against him. The 
 court said the promise did not appear ; hut at any rate it would only protect the party in 
 a public prosecution, and they received the evidence, saying it could not be withheld, feven 
 on grounds of public policy. Patton v. Freeman and others, Coxe's Rep. 118. 
 
 (1) R. & Cr. Ca. 153. See R. v. Pountney, and R. v. Taylor, mpra, p. 544. 
 
 (2) R. V. Gibbons, 1 C. & P. 97 ; R. v. Hardwicke, cited Id. 98, n. Nott. L. Ass. 1811 ; 
 where the inducement was held out by the constable's wife some days before the commit- 
 ment. R. V. Tyler, 1 C. & P. 129 ; R. v. Richards, 5 C. & P. 318. 
 
 (8) 7 C. & P. 776. See also R. v. Dunn, 4 C. & P. 543 j R. v. Kingston, Id. 887 ; R. v. 
 Slaughter, Id. 544, a. ; R. v. Downing, 1 Tayl. Bv. 589, n. 
 
SEC. XI.] Inducement held Out. 455 
 
 a confession made to a person who has no authority, after an inducement 
 held out by that person, is receivable. This doubt seems now to be 
 removed. For, in th6 later case of The King agt. Taylor,(l) where the 
 inducement was similar, and from a person who had no authority, the same 
 objection was taken ; two cases were cited as in point, and the case of The 
 King agt. Spencer, was referred to as showing the existing doubt among 
 the judges; but Patteson J., said: "It is the opinion of the judges, that 
 a confession is receivable, unless there has been some inducement held out 
 by some person in authority." It seems settled, therefore, for the present, 
 that under ordinary circumstances, a confession is not to be excluded on 
 account of its having b'een made under an inducement held out by some 
 person who had no authority of any kind in the matter. 
 
 In the case of The King agt. Simpson, (2) the confession of a girl fifteen 
 years old, which had been occasioned by many applications by the prose- 
 cutor's relations and neighbors, amounting to threats and promises, was 
 held by all the judges not to be admissible ; though none of the threats or 
 promises were actually made by, or in the presence of, a person having 
 authority. The girl was charged with setting fire to her master's house ; 
 on the day of the fire, the mother of the prosecutor's wife spoke to the 
 prisoner in the prosecutor's house in the presence of the prosecutor's wife, 
 who was very deaf, and of the prisofier's mother, and held out to her what 
 in law would be considered an inducement to confess. The prisoner denied 
 the charge. On the same day she was taken before a magistrate. On the 
 next morning the prosecutor's mother-in-law saw the prisoner again, on 
 the road to her house ; and again charged her with the offense, which she 
 again denied. Soon after H., a neighbor of the prosecutor's (who had 
 previously charged the prisoner with having set the house on fire), came 
 up and joined them, and said to the prisoner: "Don't be so bold, perhaps 
 you will have to go to S. to-morrow," which was the place where the 
 magistrates met. He also told her that perhaps somebody would come 
 forward to-morrow who saw her do it. He also said, " if you be guilty 
 go along with Mrs. B. (the prosecutor's mother-in-law), and beg your 
 master's and mistress's pardon, and get away, and be better in future, and 
 we shall not seek after you ;" and he added, " never mind your wages, I'll 
 give you a few shillings out of my pocket." He also told her, it would be 
 better for her to confess. After he went away the prosecutor's mother-in- 
 law went with the prisoner to the prosecutpr's house, and talked to her 
 about the fire all the way ; and after they got there they went out of the 
 house, and she said to the priso'ner : " Now, Sarah, you lighted the bunch 
 
 of matches, and put it into the thatch of the house ;" before she 
 *560 said that, *she told the prisoner that, if she went to S. again, 
 
 she would be a great deal worse ofi", and she said to her several 
 times, both going along the road to the prosecutor's house, and also in the 
 house, and also when she spoke to her out of doors, that it would be a great 
 deal better for her if she would confess, and a great deal worse for her if she 
 did not confess. Littledale, J., at the trial, allowed evidence to be given of 
 what the prisoner said, reserving the question as to the admissibility of the 
 evidence, for the opinion of the judges. It appeared that when the prosecu- 
 tor's mother-in-law said to the prisoner : " Now, Sarah, you lighted the 
 bunch of matches, and put it into the thatch ; " the prisoner said, " Yes, I 
 did." The prosecutor's mother-in-law then told her daughter (the prosecu- 
 tor's wife), what had passed, and she then came out, and in the presence of 
 the mother-in-law, asked the prisoner what she did it for ; whether it was 
 for anything against the family? She said, "No." The mother-in-law 
 asked her if any one persuaded her to do it ? She said, '^ No," and that she 
 
 """"' (1) 8 C. & P. 733. 
 
 (3) R. & M. C. C. R. 410. 
 
456 Admissibility of Confessions. \pB. viii. 
 
 had no malice. The prisoner m her defense asserted her innocence, and 
 said that her mistress, had told her that if she would confess to it she 
 should have her liberty, and she added, that she confessed on purpose to get 
 her liberty, and that they frightened her to do it. 
 
 It can scarcely be doubted, that the prisoner was wearied, if not worried, 
 into making a confession, and considering her tender years, and the rela- 
 lationship in which the person who continually pressed her to confess,! stood 
 with regard both to her master and her mistress, there can foe but little doubt 
 that the girl would be under an impression, and not an unreasonable one^ 
 that the threats and promises were held out to her by one who had the 
 
 means of carrying them into execution. (1) 
 *551 * Where a person has made a confession in the hope of obtaining a 
 
 reward or pardon from government, and of being admitted queen's 
 evidence, his confession is admissible against him, unless it appear, that, at 
 the time of making the confession, he knew that a reward had been offered ; 
 if he was aware of the offer, before he made the confession, it would aot be 
 admissible. (2) 
 
 If a party has been admitted queen's evidence, and has ic'onfessed^ and 
 
 (1) See Joy on Conf. 9. 10, and 2 Russ., C. & M. by Greaves, 842, n. 
 
 Note 156. — " As the tuman mind under pressure of calamity is easily seduced, and 
 liable in the alarm of danger to acknowledge indiscriminately a falsehood or a truth, as 
 different agitations may prevail, a confession, whether made upon an official examinatioB 
 or in discourse with private persons, which is obtained from the defendant, either by 
 the flattery of hope or by the impression of fear, however slightly the emotions may be 
 implanted, is not admissible evidence; for the law vrill not suffer a prisoner to be made 
 the deluded instrument of his own conviction." 2 Curw. Hawk. 595, cited from Leach's 
 Hawk, and approved in State v. Aaron, 1 South. 239. And see State v. Fields, stated 
 ante, note 155. 
 
 The prisoner was threatened by the prosecutor, that unless he confessed the larceny 
 changed on him, he would be sent to the state prison ; whereupon he confessed, and 
 repeated the same confession the next day in the police oflice, in the prosecutor's presence, 
 when the magistrate wrote it down. The case went lo the jury without objection ; but 
 Radcliff, Mayor, charged, that although prima /ascie a confession made in the police oiEce 
 should be presumed to have been taken freely and voluntarily, yet should the jury believe 
 from the circumstances, that at the time the confession was reduced to writing the mind 
 of the prisoner was under the influence of f^ar previously excited, it would be their duty 
 to reject such written confession equally with the other. Verdict not guilty. Williams' 
 Case, 1 C. H. Record. 149. A boy twelve years and five months old, accused of murder, 
 was encouraged to confess by a promise of impunity, " If you will confess, you wiU 
 probably get clear," by one among several who were interrogating him. His examination 
 was taken the next day before the magistrate, who cautioned him solemnly and repeat- 
 edly to tell nothing but the truth, but he knew nothing of the previoas practices with the 
 boy. He confessed ; but the examination was rejected, on the presumption that the boy's 
 mind was not clear of the previous influence. State v. Guild, 5 Halst. 163, 167, 168, 178, 
 179. The justice, after the high constable had arrested the prisoner, told his wife in his 
 presence in the afternoon, that if what she had told him was true, it would be better for 
 the prisoner to confess ; and the next morning, before the committing magistrate, he did 
 confess, though then cautioned by him not to expect any favor ; but the court refused to 
 receive the confession aguiinst the prisoner. They said they would presume the influence 
 lasted till the examination. People v. Robertson, before Riker, Recorder, N. Y. Gen. Sess. 
 Nov. Term, 1822 ; 1 Wheel. Cr. Cas. 66. A confession made before the police clerk_ after 
 a threat to the prisoner by one of the marshals while bringing her to the oiflce, t hat if 
 she did not toll all she knew, she would be put into the dark room and hanged, was 
 rejected. People v. Rankin, New York 0. and T., before Van Ness, J. ; 2 Wheel. Cr. Cas. 
 468. 469. 
 
 With respect to a police confession, made after a promise by the prosecutrix to the pris- 
 oner, and before the prisoner's apprehension, the effect of which did not appear to have 
 been counteracted, the New York general session say : " The confession before the police 
 officers, we have ever received as good evidence ; although before the prisoner was 
 apprehended, a promise of favor may have been made by persons not attached to that 
 department." Per Oui-iam, including Radcliff, Mayor, in Charity Jackson's Case, 1 C. H. 
 Rec 38. See note 155, and po«f, 157. 
 
 (2) R. V. Boswell, Car. & M. 584. See also R. v. Dingley, 1 C. & K. 637 ; Berigan's Case, 
 1 Ir. Circ. Rep. 177 ; Joy Conf. 27 ; 1 Russ., Cr. & M., by Greaves, 831. But see Hall's 
 Case, 2 Lea. C. C. 559. 
 
SBC. XI. J Suspicion of Inducement, 457 
 
 upon the trial refuse? to give evi^enqei, his own confession will 1?e evid^nca 
 against himself. (1) 
 
 Suspicion of inducement given, to be removed. Fer the purpose of intro- 
 ducing a confession in evidence, it is unnecessary, in genierdl, to do more 
 than negative any proinise or inducement held out by the person to whoin 
 the confession was made. (2) However, if there be any probable ground to 
 suspect inducement in obtaining the confession, such a suspicion ought, in 
 the first instance, to be removed. In a case where a constable, having a 
 prisoner in custody^ left the room where the prisoner was .detained, when 
 another constable entered the room, on which the prisoner at once made a 
 confession to him, it was held necessary for the prosecutor to call the fif st 
 constable, for the purpose of proving that he had not held out any induce- 
 ment. (3) 
 
 Where an inducement has been held gut to the prisoner by a prose- 
 *552 cutor *or by a person in authority, it seems, in general, that a 
 
 confession made to such persons at a subsequent time would not be 
 receivable; (4) that is,. unless it were clear that by a full explanation and, 
 caution they afterwards put an end to all inducement, and left the prisoner 
 to speak or not, freely and without bias, as if no inducement had ever been 
 made. If a person of authority, such as a magistrate, holds out an induce- 
 ment to confess, a confession afterwards to a person of an inferior authority, 
 as a turnkey, seems not to be admissible. Such a confession has been held 
 not to be receivable, where the inferior officer did not caution the pris- 
 oner, (5) 
 
 , Caution after inducement. Although an indncement has been held out 
 by a, prosecutor, constable, or other person, yet, if the magistrate before 
 whom he is afterwards taken, distinctly warns him that what he says may 
 be given in evidence against him, a confession, made after such caution, 
 will be receivable. (6) In a case, tried before Bayley, J., (7) where it appeared 
 that the prisoner, on being taken into custody, had been told by a person- 
 who came to assist the constable that it would be better for him to confess ; 
 but, on his being examined before the committing magistrate on the follow- 
 ing day, he was frequently cautioned by the magistrate to say nothing 
 against himself; a confession, under these circumstances, before the magis- 
 trate, was held to be clearly admissible. 
 
 In another case, it appeared that a constable told the prisoner he, might 
 do himself some good by confessing ; the prisoner afterwards asked the 
 magistrate if it would be any benefit to him to confess ; on which the magis- 
 trate said he could not say it would, and the prisoner then declined 
 confessing ; but afterwards, m his way to prison, he made a confession to 
 another constable, and he confessed again in prison to another magistrate; 
 the judges were unanimous in holding that the confessions were admissible 
 in evidence, on the ground that the magistrate's answer was sufficient to 
 efiace any expectation which the constable might have raised. (8) 
 
 (1) R. V. Burley, 3 Stark. Ev. 13 ; by Pollock, C. B., in R. v. Dingley, 1 C. & K. 640. 
 , (2) R. V. Clewes, 4 C. & P. 233. ' 
 
 (3) K. V. SwatkinSj 4 C. & P. 550. It was aftRrwards shown that the prisoner was not 
 under any charge at the time, but that the first constable was detaining him as an unwil- 
 ling witness ; and the evidence was received. 
 
 (4) See E. v. Nate, 1 Burn J., by D'Oyly & Wms. 1086 ; 2 Russ., Cr. & M., by Greaves^ 
 832, 833 ; R. v. Sexton, Id. ; R. v. Smith„ Id. And see 2 East P. C. 658. 
 
 (5) R. V. Cooper, 5 C. & P. 535. 
 
 (6) R. V. Howes, C. & P. 404. And see 11 & 12 Vict. c. 42 post, Vol. II. 
 
 (7) R. V. Lingate, Derby Lent Ass. 1815, MS. 
 
 (8) R. V. Rosier, Easter Term, 1821, MS. 
 
 (So, where the prisoner confesses under an inducement, and then makes a confession 
 after he h'as been distinctly apprised by the officer making the arrest that the offense 
 cannot be settled. Ward v. The People, 3 Hill R. 395. Where the confession is not made 
 
 Vol. L 58 
 
458 Admiksihility of Confessions. [cH. vm. 
 
 *S53 *So -where a magistrate had told a prisoner charged vrith murder, 
 that, if he was not the man who struck the fatal blow, and would dis- 
 close all he knew respecting the matter, he would use his influence to 
 protect him ; but on subsequently receiving a letter from the secretary of 
 state, refusing a promise of pardon, he communicated its contents to the 
 prisoner ; it was held, that a confession which the prisoner afterwards made 
 to the coroner, who had also duly cautioned him, was admissible. (1) 
 
 to a person in authority ; as where the prisoner confessed to the prosecutor, after he had 
 been put in jail, the latter saying he thought it better for all concerned for the guilty 
 party to confess, more honorable in all cases ; the confession was received. The Common- 
 wealth V. Morey, 1 Gray (Mass.), 461. To exclude the confession, it must appear to have 
 been drawn from the prisoner by threat, or promise of some advantage, such as escape 
 from, or mitigation of punishme&t. Smith v. The Commonwealth, 10 Gratt. 734. It 
 must be voluntary, not induced by hope or fear. Spears v. Ohio, 2 Ohio (N. S.), 583 ; 
 Stephen v. The State, 11 Geo. 235. If it appear in evidence that the prisoner's hopes or 
 fears had been previously practiced upon, H, must be shown that he was warned of the con- 
 sequences before making confession. Van Buren v. The State, 24 Miss. 513 ; 33 Eng. Law 
 & Eq. 604 : 12 Id. 590 ; Commonwealth v. Taylor, 5 Cush. 605.) 
 (1) B. V. Clewes, 4 C. & P,,221. 
 
 Note 157 — State v. Guild, 5 Halst. 163, 179 to 181, stated iw/ra; Commonwealth v. 
 Boyer, 2 Wheel Cr. Cas. 149, 150. The prisoner was committed for arson, and was 
 visited in the jail by various persons, among whom were the inspectors of the prison ; 
 and various means were used to persuade and terrify him into a confession. A short 
 time after his commitment, he made a full and apparently voluntary confession to the 
 mayor ; nothing, however, having been done to remove the influence of previous prom- 
 ises or threats. His confessions were received, but the jury acquitted him. They were 
 told that they might decide on the credit to be given to the confessions ; and that merely 
 cherishing the hope of mercy would not, though the confessions were mado under such 
 influence, render them inadmissible. Though the prisoner, in this case, was acquitted 
 of the arson, he was afterwards indicted, and convicted on the same facts of a, misde- 
 meanor. The Commonwealth v Dillon, 4 Dall. 116. 
 
 The prisoner, charged with 'conspiring to obtain money from a bank, was arrested on 
 civil process at the suit of the bank, and remained with the arresting officer several days, 
 at the house of the president of the bank, who promised him favors if he would confess. 
 He did so, after a considerable lapse of time from the promise made, and immediately 
 afterwards said the confession was free and voluntary; yet the court presumed the 
 confession, and everything which' followed, were influenced by the promise ; and said it 
 made no difference whether the confession was made to one having a concern in the 
 administration of justice or not. Thorn's Case, before Golden, Mayor, 4 C. H, Rec. 81. 
 
 The prisoner being arrested for a burglary, was told by a stranger, in presence of the 
 prosecutor, that, being in custody, his confession could not be used as evidence against 
 him ; and another stranger told him that being young, if he would confess, it would be 
 more to his credit. He accordingly confessed ; and two or three days after, there being 
 no immediate influence exercised he made a fuller confession. Both held inadmissible, 
 though corroborated by circumstances ; as the latter might have been made under the 
 first influence. This shall be presumed to continue till palpably done away. State v. 
 Koberts, 1 Dev. 259. 
 
 But, as intimated by the last case, the presumption of a continuing influence may be 
 repelled ; and then a subsequent confession becomes admissible. Eex v. Sexton, stated 
 ante, note 155. Thus where the prisoner, being arrested by D., was induced to confess 
 by a promise from D., the court would not receive a subsequent confession made to D., or 
 any one in D.'s presence ; but said that a confession to a third person, D. being absent, 
 would be receivable. Milligan & Welchman's Case, before Riker, Recorder, N. Y. Qen'l 
 Sessions, 6 C. H. Rec. 69, 77, 78. Q;mre. See ante, note 165, and post in this note. 
 
 It will abundantly be seen by the page and note last referred to, that a previous undue 
 influence may be so completely countervailed by a subsequent influence, as to render an 
 after confession admissible. See also arite, note 156. 
 
 Again ; an infant under fourteen had been wrought upon by assurances of favor : " If 
 you will confess, you will probably get clear," to confess a murder, in consequence of 
 which his then confession and the examination before the magistrate were refused as 
 evidence. But, after lying in jail five months, and being told by a stranger, and by a 
 magistrate whom he knew, that he must not expect to escape, but must expect death, he 
 made a full and circumstantial confession, repeating it to various persons. Held admissi- 
 ble in evidence against him. And the court deny what is said in Stark. Ev. pt. 4, p. 49 : 
 " Where a confession has once been induced by such means, all subsequent admissions of 
 the same or the like facts must be rejected, for they may have resulted from the same 
 influence," to be law. The court adopt this rule : " Although an original confession, may 
 
SEC, XI.J Tacts discovered in Consequence. 459 
 
 *554 *It is not a valid objection to a confession before a magistrate, that 
 the prosecutor, who was present, first suggested to the prisoner 
 that he had better speak out, if it appear that the magistrate or his clerk 
 immediately checked the prosecutor, desiring the prisoner not to regard 
 him, but say what was proper. (1) 
 
 If a confession has been received in evidence, and it afterwards appears 
 that it had been made under such an inducement as would render it inad- 
 missible, the judge will strike the evidence of the confession from his 
 notes. (2) 
 
 Property found in consquence of confession. Though a confession may 
 have been obtained by means of undue inducements, yet if, in consequence 
 of the information obtained from the prisoner, any fact relative to the offense 
 is brought to light, such as the discovery of the property stolen, it is com- 
 petent to give in evidence the fact that the property has been discovered 
 conformably with the prisoner's information. The statement as to his 
 knowledge of the place where the property is to be found, being confirmed 
 by the fact of the finding, is thus proved to be true, and not to have been 
 fabricated in consequence of any mducement. It is competent, therefore, 
 to inquire, whether the prisoner stated that the property would be found 
 
 by searching a particular place, and to prove that it was found 
 *555 there. (3) Upon this the jury would have *to consider whether the' 
 
 prisoner, who knew of the concealment of the property, had not 
 himself concealed it or was privy to the concealment. 
 
 In the case of The King agt. Gould, (4) on a trial for burglary, the 
 
 have been obtained by improper means, subsequent oonfesaons of the same, or of like 
 facts, may be admitted, if the court believe, from the length of time inteivening, from 
 proper warning of the consequences of confession, or from other circumstances, that the 
 delusive hopes or fears under the influence of which the original confession was obtained, 
 were entirely dispelled." State v. Guild, 5 Halst. 163, 179 to 181. See ante, note 156. 
 
 Before reading the prisoner's confession to a coroner, it appeared he had been visited 
 by B., who was a clergyman and magistrate. Yet held that the prosecution need not call 
 B., though the prisoner might, before reading the confession, to prove that some induce- 
 ment was held out. On his being called by the prisoner, it appeared that B. told the 
 prisoner that if he was not the person who struck the fatal blow, and would tell all he 
 knew, he (B.) would use all his endeavors and influence to prevent anything happening to 
 him ; and that if he, the prisoner, did not make a disclosure, some one else would proba- 
 bly do so. After this, B. wrote to the secretary of state, who returned an answer that 
 mercy could not be extended to the prisoner, which B. communicated to the prisoner. 
 After this, the prisoner sent for the coroner, and wished to make a statement. The coro- 
 ner told him if he did so, it would be used as evidence against him. The prisoner made 
 the confession. Held, that it was admissible as evidence against him, for all hopes of the 
 prisoner must have ceased, when he made the confession. Bex v. Clewes, 4 Carr. & Payne, 
 321. And see Qilham's Case, Carr. Supp. 61. 
 
 (1) Edward's Case, East. Term, 1803, MS. 
 
 (3) E. V. Gamer, 3 C. & K. 920. 
 
 (8) On this subject see R. v. Warwickshall, 1 Lea. C. C. 263 ; K. v. Butcher, Id. 265, n. ; R. 
 V. Mosey, Id. ; K. v. Lockart, Id. 386; B. v. Grant, and R. v. Hodge, 3 East P. C. 658 ^R. 
 V. Thurtell, Joy Conf. 84. It seems formerly to have been thought that no part of the 
 confession could be given in evidence, but only the acttial discovery of the property. See 
 E. V. Harvey, 3 East P. C. 658. 
 
 Note 158. — Though some have thought otherwise, the latter cases are unifprm to the 
 point that a circumstance tending to show guilt may be proved, although it was brought 
 to light by a declaration inadmissible, per se, as having been obtained by improper influ- 
 ence. Holt's N. P. Rep. 498, note ; Charity Jackson's Case, 1 C. H. Rec. 38 ; Tucker's 
 Case, 5 Id. 164 ; 3 Curw. Hawk. 595, cited and approved in State v. Aaron, 1 South. 335. 
 Conceded by Emmet, arg. in Milligan & Welchman's Case, 6 C. H. Rec. 69, 78. And held 
 in The State v. Motley, 7 Rich. S. C. 337 ; The State v. Vaigneur, 5 Rich. 391. 
 
 (The rule as laid down in the text has been lately reaffirmed and applied in the Court 
 of Appeals, in a case of robbery ; the property, a watch, having been found in conse- 
 quence of a confession which was held ina<inissible. Duffy v. People, 26 N. Y. 588.) 
 
 (4) 9 C. & P. 364. 
 
 NoTB 159. — Though, as we saw in the last note, the fact or circumstance discovered in 
 consequence of a disclosure obtained by improper ii^fltience, be admissible as an indepen- 
 
460 Admissibility/ of -. Confessions. . [ch, yjn. 
 
 statement of the prisoner, that he; had himself disposed of property 
 *556 which *had been in the house, and concealed it in a place named by 
 
 hiin, was held to be admissible in, evideneej although others parts of 
 bis statement (being considered questionable) were not brought forwardi^ 
 The whole of what he said respecting the concealment of the property was 
 admitted. But the jiidge in^uoh a case would .direct the jury — ^and so, it 
 is Understood, did direct; in that case — that his statement must not be taken 
 as proof that he himself had concealed the property, but merely as evidence 
 that he knew of, or was privy to, the concealment — from which, togethei'r 
 with the rest of the evidence, they would consider whether it was probable 
 that he concealed it himself. 
 
 Where inducetnents have been held out, which would render a confession' 
 inadmissible, and the prisoner, under such indufcements, has delivered 
 property to the prosecutor, there may be a question, how far proof may be 
 given of what the prisoner has said on the delivery, in answer to questions 
 put to him, or to a demand made. Words used by him confessing guilt, 
 are not admissible as proof of his guilt : but proof of what he said, on deliver- 
 ing the property, would be admissible for this purpose of showing that he 
 delivered it aS the stolen property. In the case of The King agt. Griffin, (1) 
 a prisoner was charged with stealing a guinea and two promissory notes': 
 after inducements to confess, it was held, that the prosecutor might prove,^ 
 not only that the prisoner brought him a guinea and a note, but that he also 
 gave them up, as the guinea' and one of the notes that had been stolen from 
 
 dent fact, dieconriected with tlie disclpsure, yet there, are very respectable authorities 
 which deny that the disclosure itself may be shown in connection with it, or be in any 
 ■way coupled with it or explained by it. 2 Curw. Hawk. 595, cited and approved in State 
 V. Aaron, 1 South. 235 ; Charity Jackson's Case, 1 C. H.,Ree. 28 ; Milligan & Welchman's 
 Case, 6 C. H. Rec. 69, 77, 78, ae/raft. ; State v. Roberts, 1 Dev. 259. Yet there is a strong 
 current of authority running with the text, that both the disclosure and the fact or cir- 
 cumstance connected with it, and going to its corroboration, shall also be received in 
 evidence, and they go to the jury with their joint force. This was so held where a boy, 
 being threatened, admitted that he stole the prosecutor's bearskin and concealed it in the 
 oven, where it was found. Stage's Case. 5*C. H. Rec. .177, 178, before Colden, Mayor. 
 And similar ground was taken by the same learned judge, charging the jury in Tucker's 
 Case (5 Id. 16'4:, 166). What may be considered corroljorating circumstances, see ante, 
 note 157, cases of State v. Guild, and State v. Aaron, in connection with the foregoing 
 cases cited in this note and those which now follow. On trial for murder, it appeared 
 that two men met the prisoner and he produced some money of tlie deceased They then 
 charged liim with the crime, and beat him because he denied it. They tied him and 
 ordered him to produce the deceased's money. He then led them to a swamp and showed 
 the residue ; acknowledged the murder 'and the manner of it ; viz : striking on the left 
 side with a club, as the deceased rode along the road ; said he dragged the body out of 
 the road, and left the club lying by it ; covered the body with brusli where the old road 
 formerly ran, about ten or twelve yards from the present road. Some time afterwardSj 
 about four miles distant, he pointed out a log, not far from the road, as containing tlie 
 deceased's saddle-bags. All these circumstances were proved to be true, and the deceased's 
 clothes were found with the bags. It was objected that the prisoner's confession, being 
 extorted, could not be received ; that the circumstances showed his knowledge, but his 
 confession alone showed his commission of the crime. But the court said a confession, 
 though extorted, which relates a number of circumstances (established by other proof), 
 with which the prisoner could not well be acquainted but as a perpetrator of the crime, is 
 admissible, and may go to the jury. State v. Moore, 1 Hayw 483. In The State v. Jen- 
 kins (2 Tyl 877), it was said a confession is evidence though extorted, but the jury are to 
 determine its weight ; and if extorted or obtained by promises, it should be disregarded, 
 unless supported by corroborating facts. Where a fact has been ascertained, e. g. the 
 finding of a weapon, in consequence of a prisoner's confession improperly obtained, as by 
 encouragement to hope for a pardon, yet such fact may be shown ; and also that it was 
 ascertained in consequence of such confession, tliough without such ascertainment, the 
 confession would have been inadmissible. Commonwealth v. Knapp, 9 Pick. Rep. 496, 
 611. 
 
 It is hardly necessary to observe, that though the confession be obtained by influence 
 and therefore inadmissible, yet being accompanied with the possession of the stolen 
 goods, such possession must be accounted for by the prisoner in the usual way. Stage's 
 Case, 5 C. H. Rec. 177, 178, before Colden, Mayor. 
 
 (1) R. & R. Or. Ca. 181. 
 
SEC. XI.] Indncmient to Confess. 461 
 
 him. In the case of The Kin^ agt.' Jones,(T) -when the prosecutor asked the 
 prisoner for the money, which the prisoner had taken out of his pack, and at 
 the same time held out inducements to confess, whereupon the, prisoner pro- 
 duced a sum of money, stating that it was all he had left of iit, it was held 
 that this evidence ought not to have been received. The distinction between 
 these cases seems to he, that, in the former, the admission went only to this 
 •point — that the property had been stolen; but in the latter there was an 
 ^implied admission by the prisoner that the property had been stolen by 
 himself. ' I 
 
 If a prisoner's statement (obtained by threat or promise), Of his having 
 concealed property, is not admissible against him as proof of the fact of 
 having himself concealed the property, though' the property is found so con- 
 cealed ; still less is. it admissible algainst other persons to implicate them in 
 the guilt of the transaction. Thus, in the case of The King agt. Jenkins, (2) 
 where a prisoner was induced by a promise from the prosecutor to con- 
 *557 fess his guilt, and after that confession he carried the officer to a /"par- 
 ticular house, as the house where he had* disposed of the property, 
 and pointed out the perspn to whomi he had delivered it ; the person denied 
 knowing anything about it, and the property was never found ; it was 
 'held, that not only the confession, but the fact of the prisoner's carrying 
 the officer to the house in question, were inadmissible in evidences. 1 
 
 Nature of inducement. With regard to the nature of the inducement, 
 which will have the effect of excluding a confession made under its influ- 
 ence, it must contain a threat of some disadvantage, or a promise of some 
 advantage, to the party charged. 
 
 Thus, such expressions as the following have been held to suggest a 
 sufficient inducement: "If you do not, tell who your partner was, I will 
 commit you to prison;" (3) "Unless you give me a more satisfactory 
 account I will take you before a magistrate ;" (4) or, "If.youwijl tell me 
 where my goods are, I will be favorable to you;"(5) "I, only want my 
 money, and if you give me that, you may go to the devil;" (6) "You had 
 better tell all you know." (7) And the same effect has beeii given even to 
 the following expressions, probably under the notion that they were calcu- 
 lated to excite undue alarm or hope in the mind of the party charged : " It 
 is of no use to deny it, for there are the men and the boy who will swear 
 they saw you do it;"(8) "What you say, I shall take down, and it will be 
 used for you, or against you at your trial ;"(9) "You must be very careful 
 in making any statement to me, or any body else, that may tend to injure 
 you, but anything you can say in your defence, we shall be ready to hear, 
 or send to assist you;"(10) You had better not add a lie tp the crime of 
 theft." (11) 
 
 If the words used are ambiguous, but might be considered by the J)arty 
 charged, as a threat or promise, it seems the confession will not be admis- 
 sible ; thus, where a prisoner was told that he ought to tell whatever was 
 
 (1) R. & R. Cr. Ca. 152. 
 (3) R. & R. Cr. Ca. 492. 
 
 (3) R. V. Parratt, 4 C. & P. 570. And see R. V. TJpohnreli, 1 Moo. C. C. 465. 
 
 (4) R. V. Thompson, 1 Lea. C. C. 291. And see R. v. Richards, S C. & P. 318; S. C, 
 iwm. R. V. Griffiths, 2 Russ., Cr. & M., by areaves, 831, 838; R. v. Heam, Car. & M. 109. 
 
 (5) R. V. Cass. 1 Lea. C. C. 293, n. 
 
 (6) R. V. Jones, R. & R. 152. 
 
 (7) R. V. Kingston, 4 C. & P. 387. For further instances, see R. v. Partridge, 7 C. & P. 
 551 ; R. V. Thomas, 6 C. & P. 353 ; R. v. Walkley, 6 C. & P. 175. 
 
 (8) R. V. Mills, 6 C. & P. 146. 
 
 (9) R. V. Drew, 8 C. & P. 140, 
 
 (10) R. V. Morton, 2 Mo. & R. 514. 
 
 (11) R. V. Shepherd, 7 C. & P. 579. See as to this case, Joy Conf. 8, and 3 RusB., C. & 
 M., by Greaves, 829. And see R. v. Enoch, 5 C. & P. >39 ; R. v.' Taylor, 8 O. & P. 733. 
 
462 Admissibility of Confessions. [ch. viil 
 
 the truth, hut he must he very careful, as he was sure to he committed ; 
 and the prisoner thereupon made a statement, Littledale, J., would not 
 
 admit it in evidence. (1) 
 *558 *In a late case,(2) where a married woman was apprehended on a 
 charge of felony, and her husband, in the presence of the constable, 
 told her, if she knew anything about it to tell the truth ; Pollock, C. B., 
 rejected the evidence of the statement which she had made in consequence ; 
 but it appears, his Lordship was partly induced to do so, upon the ground 
 that her statement tended to exonerate the husband, and might be consid- 
 ered as made under his coercion. 
 
 But it seems that a mere exhortation to tell the truth, not conveyed in 
 such a manner as to induce the party charged to suppose that it will be 
 better or worse for him to admit his guilt, or under such circumstances as 
 to imply coercion, will not have the effect of excluding a subsequent con- 
 fession. Thus upon a charge of forgery, where a magistrate had told 
 the prisoner to be sure to tell the truth, on which he made a statement, the 
 statement was received in- evidence. (3) "It can hardly be said," observed 
 Littledale, J., " that telling a man to be sure to tell the truth, is advising 
 him to confess what he is not really guilty of." 
 
 An inducement held out to an accused party with reference to the offense 
 with which he is charged, will not exclude a confession o^ another offense, 
 of which he was not suspected at the time the inducement was held out, (4) 
 unless the two offenses formed part of the same transaction. (5) 
 
 The inducement held out to the prisoner to cohfess must be of a tempo- 
 ral natixre, and have some reference to the charge. Thus, a confession 
 drawn from the prisoner by a clergyman, or other person, by means of 
 spiritual exhortation, is not on that account inadmissible. (6) 
 
 A promise by a constable to a prisoner, that if he would confess, he 
 should see his wife, has been held not to render inadmissible a confession 
 made in consequence of such promise ; no hope of favor being held out as 
 to the charge upon which the prisoner was in custody. (7) 
 
 In one case, (8) where a prisoner in custody had offered to tell the officer 
 
 all about the matter with which he was charged, if he would give him a 
 
 glass pf gin, and having obtained the gin made a confession. Best, 
 
 *559 J., *refused to receive it. But the authority of this case does not 
 
 appear to rest on any principle. 
 
 The circumstances that some deception has been practiced, in order to 
 obtain a prisoner's confession, will not render it inadmissible in evidence : 
 as where a person promised a prisoner, that what he had to say should go 
 no further ;(9) or even took an oath to that effect. (10) Where a prisoner 
 asked the turlJkey, if he would put a letter in the post, and upon his prom- 
 ising that he would do so, gave him the letter ; it was detained by the turn- 
 
 (1) E. V, Williams, 2 Rubs. Cr. & M., by Greaves, 832. 
 
 (2) R. V. Laugher, 3 C. & K. 235. 
 
 (3) R. v. Court, 7 (!. & P. 486. See further Wright's Case, 1 Lew. R. 48 ; R. v. Holmes, 
 1 C. & K. 348. 
 
 The Commonwealth v. Morey, 1 Gray (Mass.) 461 ; Carroll v. The State, 23 Ala. 28 ; Re- 
 gina v. Sleeman, 22 Eng. Law & Eq. 606 ; 12 Id. 583, 590. 
 ■ (4) R. V. Warner, 2 Russ., Cr. & M., by Greaves, 845. 
 
 (5) R. V. Hearn, Car. & M. 109. 
 
 •(6) Gilham's Case, Ry. & M. Cr. C. 186 ; Wild's Case, Id. 452. See R. v. Radford, cit. 
 Id. 186 ; 3 Russ., Or. & M., by Greaves, 852, n. ; E. v. Nutt, 3 Id. 832 ; R. v, Hewett, Car. 
 & M. 536. See also 5 Jur. 473, 495. 
 
 Eegina v. Sleeman, supra. 
 
 (7) E. V. Lloyd, 6 C. & P. 393. In R. v. Green (6 Id. 655), the prSoner's statement was 
 received after his saying, that " if his handcuffs were taken oflF, he would tell." 
 
 (8) R. V. Sexton, Burn, J., D'Oy. & Wms, 1086. ' 
 .' (9) R. V. Thomas, 7 C. & P. 845. 
 
 (10) E. V. Shaw, 6 C. & P, 372. 
 
SEC. XI.] Inducement to Confess. 463 
 
 key, and given in evidence as a confession. (1) In another case, artifice was 
 used to induce a prisoner to suppose that some of his accomplices were in 
 custody, under which mistaken supposition he made a confession, and it 
 was admitted in evidence. (2) In another case, where a constable, in order 
 to extract a confession, assumed the prisoner's guilt, asking her how she 
 came to poison her uncle, a confession made in answer was admitted. (3) In 
 these cases, there was no reason to suppose (which is the main point to be 
 considered), that the inducement held out was calculated to produce an 
 untrue confession, or lead the prisoner to suppose that it would be better 
 for him to admit himself guilty of an offense which he had not in fact com- 
 mitted. 
 
 A confession by a prisoner to a constable in whose custody he is, the 
 prisoner being drunk at the time, is not on that account inadmissible, (it) 
 As to the weight or effect of such evidence, that is a matter upon which the 
 judge will observe. 
 
 A confession, obtained without threat or promise, has been received, not- 
 withstanding it was elicited by questions put by a stranger(5) or a constable. 
 (6) But the practice of putting questions by a constable is reprobated 
 *560 by most of the judges ; and in a case where it appeared that the *con- 
 stable was in the habit of interrogating prisoners in his custody, 
 Patteson, J., threatened to cause him to be dismissed from his oflBce.(7) 
 
 It was ruled in one case, by Holroyd^ J., that the fact of the person 
 being in unlawful custody when he made the confession would render it 
 unavailing. (8) This, however, seems questionable. If the prisoner were 
 to believe the apprehension unlawful, that would make him careful not to 
 disclose anything against himself: if he should suppose it lawful, that also 
 would make him careful not to make his situation worse, nor in any respect 
 to prejudice himself (9) 
 
 Confessions be fore magistrate. The previous cases exemplify the general 
 principles upon which confessions, made by persons charged with offenses, 
 are admissible in evidence ; and they have reference" generally to confessions 
 when made extra-judicially — that is, when the party is not before a magis- 
 trate. Confessions that are made before a magistrate will be treated of in 
 another portion of this work: (10) but it may be proper to remark, in this 
 
 R. Derrington, 3 C. & P. 418. 
 Barley's Case, 1818, MS. 
 
 (3) By Littledale, J., Warwick Ass., MS. 
 Carroll v. The State, supra. . 
 
 (4) B. V. Spilsbury, 7 C. & P. 187. The facts of the case, as reported, do not warrant 
 the marginal note, which is as follows : " Bemble, if a constable give him (the prisoner) 
 liquor to make ti™ drunk, in the hope of his saying something, that will not render th« 
 statement inadmissible, but it will be matter of observation for the judge in his summing 
 up." It is not to be inferred from the case, that a confession — so immorally, not to say, 
 criminally extorted — would be received. See R. v. Sexton, supra, p. 558. 
 
 (5) R. v. Wild, B. & M. C. C. R. 453. And see R. v. Shaw, 6 C. & P. 373 ; where the ques- 
 tions had been put by a fellow prisoner. 
 
 (6) R. V. Thornton, R. StM. C. C. R. 37. The prisoner was a boy, fourteen years old, 
 and the confession was made after he had been without food for nearly a whole day. The 
 constable repeatedly told him, that there was no doubt of his being guilty, and repeatedly 
 asked him who was concerned with him. See also R. v. Kerr, 8 C. & P. 176 ; R. v. Qib- 
 ney, Jebb C. C. 15 ; R. v. Hughes, Id. 39. 
 
 (7) Hill's Case, Liverpool Spring Ass. 1838, cit. Ros. Cr. Bv. 48. See also B. v. Kerr, 
 8 C. & P. 176. In like manner, the examination of a prisoner before a magistrate, con- 
 sisting of answers to questions put by the magistrate, have been received. R. v. Ellis, 
 B. & M. 433 ; B. v. Jones, 7 C. & P. 389 ; R. v. Rees, Id. 568 ; R. v. Bartlett, Id. 833. See 
 R. V. Wilson, Holt, 597, contra; which, together with a case decided by Holroyd, J., were 
 referred to in R. v. Ellis. See 11 & 12 Vict. o. 43, § 18, post. 
 
 (8) Ackroyd's Case, 1 Lew. C. C. 49. 
 
 (9) See Thornton's Case, 1 Lew. Cr. Ca. 49 ; By. & Moo. C. C. 37. 
 (10) Vol. II, Chap. 1, Of ExammatioTia. 
 
 In the state of New York, the statute, as above cited, requires that at the commence- 
 
 s 
 
464 A.dmi&Hbility of Confessions. [en. viii. 
 
 place, that the statute 11 & 12 Vict., C; 42, requires that the committihg 
 magistrate shall, in all cases, caution the accused before' he calls upon him 
 to say anything in answer to the charge. 
 
 Questions frequently arise as tothe admissibility of remarks or statements 
 which are made by the prisoner when before the magistrate, while the 
 evidence is being taken, and which are not committed to writing. The con- 
 sideration of this subject will be resumed in another part of this work ; but 
 it may be stated here, as a general rule, that such remarks or statements 
 are admissible, when there is no' reason to suppose that they have be^n 
 induced by a promise or threat. ' '. " 
 
 Statement by person under charge, examined on oath^ The examination 
 of a prisoner before a magistrate, if taken upon oath and put into writing, 
 
 is not admissible against him on his trial. (1) This rule applies to 
 *561 the case where the prisoner was before the magistrate, *under the 
 
 criminal charge on which he is afterwards tried : , his examination in 
 such a case, taken on oath, is not to be received against him in support of 
 the charge on which he was so examined., As an examination it is irregular; 
 for the modern statutes, which regulate the proceedings of magistrates on 
 criminal charges brought before them, (2) make a distinction between the 
 examination of a prisoner, and the informations of those who make 
 the charge — the informations (but not the examination of the prisoner) 
 being especially required to be on oath. Since the statement upon oath 
 cannot be received as a judicial proceeding or formal examination — it is 
 admissible as a confession? There are objections to it also in that form; 
 .the oath imposed on the prisoner, especially w:hile in custody, is likely to 
 operate 'as a constraint, or, as a kind of compulsion; the statement, there- 
 fore, cannot be considered as completely free and voluntary. And thp 
 objection, would appear to apply with greater force in cases where an 
 'ignorant *itneSs has been examined upon oath, without a distinct previous 
 warning that he was "not bound to answer questions which had a tendency 
 to criminate himself (3) It has been held that a statenient, in the heading 
 of the examination, that the prisoner was sworn, is conclusive, and that 
 proof of his not having been sworn is inadmissible. (4) 
 ■ jThe principle of these decisions has been somewhat extended in some 
 cases, where it has been held that a. statement made upon oath by a party, 
 who has been examined as a witness, with reference to the offense for which 
 he has himself been afterwards tried, is not receivable against him. 
 
 Thus, in the case of The King agt. Lewis, (5) it appeared that the pris- 
 oner, among other persons, was summoned before a committing magistrate 
 upon an inyestigation in a matter of felony, but no person was specifically 
 charged with the offense; the prisoner was t.worn and made a statement; 
 the other persons also were examined, and" made depositions ; at the conclu- 
 sion of the examination, the prisoner was committed for trial on the deposi- 
 tions of the others. This statement was held to be, not receivable against 
 the prisoner. When she was summoned to appear, suspicion attached to 
 her; and the case bears a strong resemblance to that of an individual 
 
 ment of the examination, the prisoner Bhall be informed bythe magistrate, that he is at 
 liberty to refuse to answer any question that may be put to him. 2 R. S. 794 (3d ed). 
 
 (1) B. V. Smith, 1 Stairk. R. 343 ; R. v. Rivers, 7 C. & P. 177 ; R. v. Lewis, 6 C. & P. 163 ; 
 R. V. Pikeslfey, 9 0. & P. 135, 
 
 (3) 7 Geo. iV, c. 64, § 2; U &;i3 Vict. c. 43, §§ 17, 18, post. Vol. II. The old statutes 
 Tvhich formerly regulated their proceedings were to the same effect. 1 & 2 P. & M. c. 13 : 
 2&3P. &M. o. 10. • • 
 
 (8) See Vol. II, Chap. 9, Sect.' 3, Of the' Primlegs of Witnesses in refusing to answer. 
 
 (4) So held by Park, J., in R. v. Rivers, 7 C. & P. 177. See on this case, post, Vol.iII. 
 And see R. v. Wheeley, 8 C. & P. 350 ; R. v. Pikesley, 9 C. & P. 124. 
 
 (5) 6 C. & P. 163. In B, v. Walker (cited by Gurney, B., Id.), an affidavit by a prisoner, 
 made ia a suit in Doctors' Commons, was read against him. 
 
SBC. XI.] Meamination upon Oath. 465 
 
 examined on oath under a charge. The judge said he did not think the 
 examination perfectly voluntary. 
 
 In the case of The King agt. Davi8,(l) one of several persons, -when 
 before the committing magistrate, was examined on oath as a witness 
 *562 *against the others upon a charge of felony, and, after examination, was 
 charged as a prisoner and committed for trial, the judge held that what 
 he said as a witness before the magistrate could not be used against him upon 
 the criminal charge. It does not.appear from the report that this individual 
 was taken as a prisoner before the magistrate ; but there were circumstances 
 sufficient to raise a suspicion of guilt, and sufficient also to show that the 
 statement was not perfectly voluntary. 
 
 So the examination of a party upon oath, taken before a coroner, on an 
 inquest upon the body of a deceased person, has been held to be inadmissi- 
 ble on the trial of the same party for the murder of the deceased. (2) 
 
 In a late case,(3) where a man and his wife were tried for poisoning their 
 child, it appeared that a coroner's inquest had been held upon the body of 
 another child of theirs, and that upon the inquest the mother had been 
 examined upon oath, no suspicion attaching to her at that time, and that 
 she had signed her deposition, and that afterwards she was brought before 
 the coroner, and charged with poisoning both the children, and she was 
 told by the coroner that she might make any statement she liked to the 
 jury, and that what she said would be taken down in writing. Her deposi- 
 tion was then read over to her, and she said she had a further statement to 
 make, which she made, and it was written down and read over to her, but 
 she refused to sign it. Erskine, J., received both the deposition and the sub- 
 sequent statement, reserving the point for the consideration of the judges ; 
 but as the evidence was only received as against the woman, and was 
 expressly so left to the jury, and she was acquitted, their lordships thought 
 it unnecessary to consider whether it had been properly received or 
 not. 
 
 *563 *Statement hy person, not under charge or suspicion, on oath. The 
 principle of the decisions, however, clearly does not apply to a state- 
 ment made by the prisoner, in an examination upon oath before a magistrate, 
 when he was not m custody, but examined against another person on a 
 distinct charge, provided, of course, there has been no inducement given to 
 confess, and no promise of favor or of a reward for information ; a state- 
 ment so made by one in his capacity of witness, who was perfectly free to 
 refuse answering any questions that had a' tendency to expose him to a 
 
 (1) 6 C. & P. 177. ^ ~ 
 
 (3) Anon., 4 C. & P. 355. n. b, by Park, J. ; B. v. Wheeley, 8 C. & P. 350, by Alderson, 
 B. ; R. V. Owen and others, 9 C. & P. 338, by Gumey, B. ; the examination had been 
 received by WilliamB, J., in a previous trial, against the same prisoner, for a rape upon 
 the deceased, and the point was reserved for the consideration of the judges; but the 
 prisoners w^re acquitted. See 9 C. & P. 83. In R. v. Clewes (2 Buss., Cr. & M., by 
 Greaves, 860,' n. w), it appears that the grand jury asked Littledale, J., whether the exam- 
 ination of a prisoner, who was examined on oath before the coroner aa a witness, could be 
 admitted as evidence against the same person, when subsequently indicted for the murder 
 of the person on whose body the inquest was held ; and the judge answered, " Whateve^ 
 any prisoner says, at any time, against himself, is evidence, and, therefore, such a state- 
 ment is admissible." Upon the Anonymous Case (4 C. & P. 355, n.) being mentioned to 
 his Lordship, he seemed to entertain doubts upon the point, but directed the grand jury 
 to receive the evidence, and leave the point for discussion upon the trial. The point does 
 not appear to have been afterwards raised. See 4 C. & P. 221. 
 
 (3) R. V. Sandys, Car. &. M. 845. 
 
 Where the party accused is sworn before the coroner, his testimony is inadmissible the 
 same as if given before any other magistrate ; but if he appears voluntarily, and gives 
 testimony before any accusation has been made against him, his statement is admissible 
 in evidence against him on the trial of an indictment for the crime. The People v. Hend- 
 rickson, 1 Parker C. R. 406; Case of Boughton,- 7 Iredell (N. C), 96; The People v. 
 Thayers, 1 Parker C. E. 595 ; 1 Smith N. Y. State B. 384. 
 
 Vol. I. 59 
 
466 Admiasihility of Confessions. [ch. viii. 
 
 criminal charge, seems to be clearly admissible; And it may be laid do-wn 
 generally, that a statement upon oath by a person, not being a prisoner, and 
 when no suspicion attached to him, the statement not being compulsory, 
 nor made in consequence of any promise of favor, is admissible in evidence 
 against him on a criminal charge. (1) Thus, where a prisoner had been 
 examined upon oath respecting a distinct charge against another person, 
 Parke, B., received the evidence of the examination. (2) 
 
 Where a prisoner, before the committing magistrate, was sworn by mis- 
 take (being supposed to be a witness), but his deposition was afterwards 
 destroyed, and he was cautioned, a subsequent statement which he made was 
 received. (3) 
 
 ' It has been ruled also, that an examination before a committee of the 
 House of Commons was evidence in the trial of a misdemeanor ;(4) though 
 it was 'objected, that the person, against whom the admission was used, had 
 been compelled to appear before the committee, and would have been punish- 
 able, as for a contempt of the House, on refusal to answer the question. But 
 on the other hand, if a witness has been obliged' to answer upon oath qiies- 
 tions tending to criminate himself, after claiming the protection of the 
 judge, (5) what he says must be considered to have been obtained by com- 
 pulsion, and not be given in evidence against him. (6) In a prosecution for 
 forgery, a deposition by the prisoner, taken on oath before commissioners of 
 bankrupt, has been adjudged to be admissible in evidence against him ;(V) 
 and sworn answers in a suit in chancery have been a;dmitted in evidence 
 against the defendants in that suit, who were prosecuted by the plaintiff on 
 a charge of conspiracy. (8) In one case it was held, that the balance 
 *564 sheet of a bankrupt, given on oath under his commission, *was not 
 admissible against him upon a criminal charge for concealing his 
 effects. (9) 
 
 In prosecutions for perjury^ the statements of the party on oath are 
 necessarily used against him. 
 
 When a prisoner is on his trial for, one fejony, a confession relating to a 
 distinct and separate felony will not be receivable. (10) 
 
 Confessions not evidence against others. With respect to the prisoner's 
 liability to be affected by the confessions of others, a marked distinction 
 exists between the branch of law how under consideration, and that which 
 has been considered in treating of admissions. 
 
 In former times, it was usual to admit the confessions of prisoners, even 
 of such as had afterwards been executed, as evidence against others, and 
 this at a period when torture was not unfrequently applied in order to 
 obtain confessions ; as, for example, upon the trials of Sir N. Throgmorton, 
 the Earl of Essex, and Sir W. Raleigh, and upon the trials for the Gun- 
 powder Plot. (11) One of the earliest reported instances of the change of 
 
 (1) R. V. Tubby, 5 C. & P. 530, referred to in K. v. LewiB,.6 C. & P. 161. See also R. v. 
 Walker, cit. C. & P. 163. 
 (3) R. V. Haworth, 4 C. & P. 354. 
 (3) R. V. Webb, 4 C. & P. 564. 
 ?4) R. V. Meroeron, 2 Stark. R. 866. 
 
 (5) See post, Vol. II. 
 
 (6) R. V, Garbett, 2 C. & K. 474, by a majority of the judges. 
 
 (7) R. V. Wheater, 3 Moo. C. C. 45 ; S. C, 2 Lew. C. C. 157. 
 
 (8) R. v. Goldshede, 1 0. & Kir. 657. See also R. v. Highfield, cit. 3 Russ., Cr. & M. by 
 Greaves, 859. 
 
 (9) R. V. Brltton, 1 M. & R. 397, by Patteson, J., and Alderson, B. 
 
 (10) R. V. Butler, 2 C. & K. 331. 
 
 But on a trial of a principal, in the second degree, the confession of the principal in the 
 first degree may be shown in connection with the record of conviction. Studstill v. The 
 State of Georgia, 7 Geo. 3. ' 
 
 (11) See also Abingdon's Case, 3 How. St. Tr. 16 ; Sir M. Foster's Discourse, 334 ; where 
 the practice is justly stigmatized. Prisoners were told, that the trial par gem de Uur 
 
ssa XI.] Inducement to Confess^ 467 
 
 practice occurs in the resolution of the judges in Tong's Case,(l) that the 
 confession of one ; is only evidence against himself, and, cannot he used 
 against any other parties, whoia he may have confessed to have heen 
 engaged with him in the commission of the offense. Even when the con- 
 fession is made before a magistrate, in the presence of another prisoner, it 
 will not he evidence against the latter; (2) < > , i * 
 
 Thus, the confession of a prisoner charged with larceny, made before a 
 magistrate, in the presence of the alleged . receiver, containing statements 
 implicating the receiver as well as the principal himself, is inadmissible 
 against the receiver. (3) In a recent case, (4) upon an indictment against 
 A. for stealing, and B. for , receiving, where A. had pleaded guUtyj 
 *665 *Patteson, J., refused to receive a statement which he had made 
 before the magistrate in the. presence of B. His. Lordship Saidi 
 " When before a magistrate, a prisoner is called upon to answer the 
 depositions taken on oath ; but he is not called upon to make any answer 
 to the statement of another prispner." In one case where the principal and 
 receiver were indicted togetJnerj and the principal pleaded guilty, Wood, B.j 
 refused to allow this, plea to establish the fact of [Stealing against the 
 receiver.(5) But in another case upon an indictment against B. alone, for 
 receiving property alleged to have been stolen by A., the indictment als6 
 stating that A. had been convicted thereof, :Bosanq,uet, J., held that the 
 record. of the conviction of A. was evidence against B., although it appeared 
 thereby that A. had pleaded guilty to the charge. (6) His Lordship said 
 that whatever is evidence against the principal is ,prima facie evidence of 
 the principal felony as against the accessory; and if the principal. is con- 
 victed on his. own confession, that is prima facie evidence of his. guilt as 
 against the accessory, but not conclusive. In this case, it is to be observed, 
 the indictment- contained an averment that the principal had been convicted^ 
 BO that the record of the conviction would be evidence to support that 
 averment, if it was a material one. 
 
 Upon trials for treasonable and other conspiracies, questions have arisen 
 respecting the admissibility of statements made by co-conspirators. These 
 have been adverted to in treating of the distinction between original and 
 hearsay evidence. - Such statements are receivable, when they accompany, 
 or when they are in the nature of acts for which all parties concerned xn 
 the conspiracy are responsible ; but they are not receivable when they are 
 in the nature of narratives, descriptions, or confessions. (?) ^ 
 
 eondiM&n,, meant confessions of accomplices. In Sir W. Raleigh's Gase, Sir E. Coke says, 
 that the law presumes a man will not accuse himself for the purpose of accusing another. 
 With regard to torture, see notes on Fortescue, de laudQms legem, Anglm ; Jardine On: the 
 Use of Torture in England. 
 
 (1) Kel. 18 res. 5, temp. Car. II ; 6 How. St. Tr. 227. And see Hevey's Casej Lea. C. C. 
 232. 
 
 (2) B. v. Appleby, 3 Stark. R. 33. And see Child v. Orace, 3 C. & P. 193 ; Helen v. 
 Andrews, M. & M. 137, supra. 
 
 See, also. Hunter v. Commonwealth, 7 Gratt. 641 ; Frost v. Commonwealth, 9 B. Mon. 
 362. Otherwise as to the declarations. and acts of one acting in concert with prisoner in a 
 homicide. Malone v. State of Georgia, 8 Geo, 408. 
 
 (3) Turner's Case, 1 By. & M. C. C. B. 347. 
 
 (4) R. V. Swinnerton, Car. & M. 593. 
 
 (5) Anon., cit. in Turner's Case, 1 Ry. & M. C. C. B. 348. 
 
 We have seen that where two persons are indicted together for a felony, one of them 
 cannot be a witness for the other, though tried separately ; and a confession js a spepies 
 of testimony. People v. Williams, 19 Wend. 377. As to the credit due to the testimony, 
 of an accomplice, see People v. Davis, 21 Wend. 308; People v. Costello, 1 Denio, 83; 
 People V. Whipple, 7 Cowen, 707 ; Hunter v. Commonwealth, 7 Gratt. 641 ; Dunn t. Peo- 
 ple, 29 N. Y. Eep. 523. 
 
 <6) B. V. Blick, 4 C. & P. 377. 
 
 Studstill V. Georgia, 7 Geo. 2. 
 
 (7) Hardy'a Trial, 24 How. St. Tr. 452, 475, where Thelwall's letter was considered to 
 be a narrative merely. 
 
468 Admissibility 6f Confessions. [ch. vni. 
 
 Confession in Case of TVeason. The statute of 7 Wm. Ill, c. 3, § 2, 
 
 enacts, that no person shall be indicted, tried, or attainted of high 
 *566 treason or misprision of high treason, " but upon *the oaths of two 
 
 lawful witnesses, either both to the same overt act, or one of them to 
 one, and another of them to another overt act of the same treason, unless 
 •Re shall willingly, and without violence, in open court, confess the same." 
 Sir Michael Foster expresses an opinion, (1) that the legislature intended by 
 this section to require two witnesses, to support a conviction, in all cases, 
 except where the prisoner confessed the treason, upon his arraignment in 
 open court ; and that to warrant a conviction there must be proof of the 
 overt acts upon oath, not merely proof of the confession of the overt acts : 
 as the former statutes of treason(2) contained a similar enactment to that 
 of the statute of Wm. Ill, but with the omission of the words " in open 
 court." " But," he adds,(3) " perhaps it may now be too late to controvert 
 the authority of the opinion in 1716 (in Francia's Case)^(4) warranted as it 
 hath been by later precedents." All the judges, on a conference prepara- 
 tory to that case, held, that a confession of the overt acts, if proved by 
 two witnesses, is sufficient evidence to warrant a conviction. The same 
 construction of the statute had been previously adopted in Gregg's Case, (5) 
 by six judges against two ; and was afterwards acted upon in Berwick's 
 Ca8e,(6) by Willes, C. J., and Abney, J., against the opinion of Foster, J. 
 But in all these cases, the confession which was given in evidence had been 
 made upon an examination before a magistrate, or person having authority 
 to take it; and Sir Michael Foster, yielding his opinion to that of the other 
 judges, as to the effect of a confession made under such circumstances, still 
 insists that the rule in Francia's Case should not be extended further than 
 that case warrants, and ought not to be applied to confessions made in the 
 presence of persons having no authority. (7) 
 
 In all cases of high treason, when the prisoner's confession is offered in 
 
 evidence as confirmatory of the testimony of the witnesses, it is 
 *567 clearly *admissible, though proved by a single witness.(8) And 
 
 with regard to all facts merely collateral, which do not conduce to 
 
 Malone v. Georgia, 8 Geo. 408 ; Glory v. The State, 8 Bng, (13 Ark.) 236 ; showing that 
 the declarations of a conspirator may be shown against a co-conspirator, though not made 
 in his presence. Cowles v. Coe, 21 Conn. 220. If made after the commission of the 
 offense, they are not admissible (The State v. Dean, 13 Ired. 63) ; or if made in reference 
 to a former transaction (Kidder v. Lovell, 14 Penn. State B. 214.) See, also, The State v. 
 Simons, 4 Strobh. 266 ; and Williamson v. Commonwealth, 4 Gratt. 547. 
 
 (1) See Fost. Disc. 240, 241, 243; WilUs's Case, Id. 241 ; S. C, 15 How. St. Tr. 623 ; 
 Smith's Case, Fost. 242. 
 
 (2) 1 Edw. VI, c. 12, and 5 Edw. VI, o. 11. 
 
 (3) Fost. Disc. 243. 
 
 (4) See Post. Rep. 11 ; Mr. J. Burnett's MSS., cit, 1 East P. C. 133 ; Kel. 18. 
 • 1 East P. C. 134 ; S C, 14 How. St. Tr. 1375. 
 
 A. D. 1746 ; Post. Rep. 10 ; S. C, 18 How. St. Tr. 370. 
 
 (5) 1 East P. C. 134 ; S C, 14 How. St. Tr. 1375. 
 
 (6) A. D. 1746 ; Post. Rep. 10 ; S. C, 18 How. " 
 
 (7) Post. Disc. 243. See also 4 Bl. Com. 356. 
 
 Note 160. — " No person shall be convicted of treason, unless on the testimony of two 
 witnesses to the same overt act, or on confession in open court." Const. U. S. art. 3, § 3. 
 The statute is to the same effect. 2 Laws U. S. 93. " No person shall be convicted upon 
 any indictment for treason, but by the testimony of two lawful witnesses to the same 
 overt act, or one witness to one overt act, and another witness to a different overt act, of 
 the same treason. But if two or more distinct treasons, of divers kinds, be alleged in any 
 indictment, one witness to prove one treason and another witness to prove a different 
 treason, shall not be deemed two witnesses to the same treason, within the provisions of 
 this section." | 15, 2 R. S. N. Y. 785. § 16 ; " In trials for treason, no evidence shall be 
 given of any overt act that is not expressly laid in the indictment ; and no conviction 
 shall be had upon any indictment for the said offense, unless one or more overt acts be 
 expressly alleged therein." 
 
 (8) R. V. Willis, 15 How. St. Tr. 622, 624, 643 ; Fost. Disc. 241. And see B. v. Cross- 
 field, 26 How. St. Tr. 56, 57. 
 
 Note 161. — Bespublica v, Roberts, 1 Dallas, 89, 40, and Bespublicav. M'Carty, 2 Dallas, 
 86, S. P. 
 
SKa XI.] Of tJie Rule requiring the Best Evidence, 469 
 
 the proof of the overt acts, it may be laid down as a general rule, that 
 whatever was evidence of them at common law is still good evidence tinder 
 the statute of William. (1) Such collateral facts may therefore be proved 
 by a confession on the testimony of a single witness. 
 
 If the overt act of high treason, alleged in the indictment, is the assassin- 
 ation of the queen, or any direct attempt against her life or her person, it is 
 plain, from the provision of the statute 5 & 6 Vict. c. 51(2) (which enacts 
 that in such cases the prisoner shall be tried according to the same order of 
 trial and upon the like evidence as if he stood charged with murder), that 
 a confession proved by a single witness will be sufficient to convict the 
 prisoner. And the overt acts themselves may be proved by a Single wit- 
 ness. In these cases, the rule of the common law is restored. 
 
 CHAPTER IX. 
 
 OF THE EXCLUSION OF SECONDARY BVIDBNCB, AND OF THE RULE WHICH 
 REQUIRES THE BEST EVIDENCE TO BE GIVEN. 
 
 The law excludes such evidence of facts as, from the nature of the thing, 
 supposes still better evidence behind in the party's possession or power. 
 The_ rule has been sometimes expressed in these terms — that the best evi- 
 dence must always be given. (3) Other writers have stated the rule to be — 
 that the law requires the highest evidence of which the nature of the thing 
 is capable. (4) The precise import of the rule cannot be clearly compre- 
 hended without reference to its application in various instances. 
 *568 *The principle of the rule under consideration is founded on the 
 presumption that there is something in the better evidence which is 
 withheld, which would make against the party resorting to inferior evi- 
 dence. Although, in some instances, this presumption may not be very 
 strong, yet the general effect of the rule is to prevent fraud, and to induce 
 parties to bring before a jury the kind of evidence which is least calculated 
 to perplex or mislead them. (5) 
 
 (1) Poit, Disc. 240, 243. 
 
 (2) See also 39 & 40 Geo. Ill, c. 93. 
 
 Note 162.— But per M'Kean, C. J., in Kespublica v. M'Carty, (2 Dall. 88) : " Most of the 
 authorities seem to lean against the admission of the party's confession in the presence 
 of two witnesses, as sufficient for conviction, unless made at the time of committing the 
 criminal act, or Ijefore a magistrate duly authorized." As to wliat constitutes the crime 
 of treason, see \S. States v. Prior, 3 Wash. C. C. 234; Same v. Hoxie, 1 Paine, 265; Same 
 V. Vigol, 2 Dall. 346 ; Same v. Mitchell, Id. 348 ; Ex parte Bollman, 4 Crauch, 75 ; People 
 V. Lynch, 11 John K. 549 ; U. States v. Hanway, 2 Wallace, jr., 139. 
 
 (3) B. N. P. 293. 
 
 (4) Bac. Ab.- tit. Evidence I. 
 
 (5) See Gilb. Ev. 13 ; B. N. P. 293. S^ also what is said by Lord Tenterden, C. S<i^ in 
 Vincent v. Cole, M. & M. 258, as to the imperfection of parol testimony concerning written 
 instruments. 
 
 Note 163. — Legal writers seem entirely agreed that the foundation «f the rule is as 
 stated in the text. Where a party proposes to introduce secondary evidence, under cir- 
 cumstances which clearly presuppose that higher evidence is witliin his power, it is very 
 natural to presume that he does so from some secret and sinister motive, conscious, per- 
 haps, that should the higher evidence be adduced, it would give a complexion to the case 
 by no means favorable, if not directly adverse to his interest. 8 Ev. Poth. 147, 148 • 3 
 Starkie's Ev. 389, 390 ; Swift's Ev. 157 ; Macnally's Ev. 234 ; 1 Chitty's Cr. Law, 566 ; 
 Strother v. Barr, 5 Bing. 399, per Best, C. J. 
 
 And the reason of the rule limits the extent of its application ; consequently, it does 
 not operate where the law itself obviates the presumption of fraud, which would other- 
 wise arise. Hence, in general, to prove that a person is a public officer, it is sufficient to 
 show that he acted as such ; for then, in the absence of evidence to the contrary, it is to 
 
470 Of the RuU requiring ' ![ch, ix. 
 
 bepresiimed that he was duly and legally appointed. 3 Stairki6's Ev. 392, 393. ' So, wheife 
 a doomnent is of a public nature, a copy is sometimes admitted, for the production of the 
 original is dispensed with, on account of the inconvenience resultipff from the frequent 
 removal of such papers, and therefore the absence of the original amrds iio presumption 
 of fraud. 8 Starkie's Ev. 393. And in a variety of cases where the opposite party has 
 admitted' the. facts sought to be established, or by his conduct precluded himself fcom 
 denyipg them, . primary evidence is dispensed with.. Indeed, the whole doctrine as to 
 secondary evidence of written instruments, Tvhen applied to the, common instance of the 
 -best evidence being isroved to be unattainable, resis upon much the same principle ; all 
 prepiimption of fraud is tUere, of coursfe, fepelled, and the rule, after first disarming the 
 parties of the means of imposition, suffers itself to be relaxed as circumstances in justice 
 shall require, by the. admission of tjhe next best evidence. Per Haywood, J., Ingram v. 
 Hall, 1 Hayw. Bep. 193, 306. See, also, 9 Petersd. Abr. 157, note; per Thompson, Z., 
 Milnor v. Tillotson, 7 Peters, 99, 101 ; United g'ates v. Reybum, 6 Id. 353. 
 
 The secondary evidence, how'ever,' roust in all cases be in itself competent ;' for the rule 
 is never so far relaxed as to allow evidence to be given intrinsically illegal, as hearsay for 
 instance, merely because a party happens to be so unfortunately situated, that it is the 
 best of which his case is susceptible. 3 Ev. Poth. 147 ; 3 Ghitty's Bl. 368, note ; Pentland 
 v. Somers, 2 Serg. & Rawle, 33. And see Johnson v. Chase, 1 Tyl. Rep. 449 ; Bonnet's 
 Lessee v. X)evebaugh, 8 Binn. 175. 
 
 And on the other hand, the rule is not to be extended to such a rigorous extreme as to 
 debar a party from justice because he Originally neglected to furnish himself with the 
 highest possible assurance of the disputed facts ; for then two witnesses would be better 
 thah one, a hundred better than two, and so on progressively. A writing' would be 
 better than a paroj contract, a deed better than either, and a record better than all. Per 
 Haywood, J., Ingram v. Hall, 1 Hayw. Rep. 193, 206. See, also, 3 Ev. Poth. 148, and 
 Looniis V. Wadhams, 8 Gray, 557. ■ . 
 
 Nor does the , rule operate in any case to mxlu^ evidence, merely because it is not all 
 nor the most satisfactory which, might be adduced, when the evidence offered and that 
 which is withheld is all of the same geiieral quality or grade (3 Starkie's Ev. 891 ; Lieb- 
 man V. Pooley, 1 Starkie's Rep: 167 ;' Macna,lly's Ev. 342; 9 Petersd. Abr. 155, note; 1 
 Ohitty's Crim.iLaw, 567!'Shoenberger v. Hackmen, 37 Penn. State R. 87) ; but in such 
 case, it in general goes no farther than to forbid that evidence which is, in its nature, 
 merely cirpumstaiitial,!shall be received, when direct and conclusive evidence may be had. 
 Comnionwealth v. James, 1 Pick. 375 ; 1 Big. Dig. 322, § 11. This is forcibly illustrated 
 by Governor v. Roberts (2 Hawks' Rep. 26). There, the secretary of state was called as a 
 witness, to produce certain papers belonging to the office of the comptroller. It appeared 
 that the' comptroller was absent on a visiti, and before his depaxture, he had deposited the 
 keys of the office ,?fith the , secretary, requesting him to attend to any applications at 
 the office during the absence of the former ; the. comptroller had not been summoned to 
 attend court, arid the secretary testified that he attended as the agent, or on behalf of the 
 comptroller, with the papers. Under these ' circumstances, it was held that, though 
 the testimony of the comptroller would be more satisfactory than that of the secretary, 
 yet both being oral, and both, therefore, of the same grade, either was competent to be 
 submitted to the juiy. " If," as is well observed by Henderson, 3.\, who delivered the 
 opinion of the court in the above case, " the rule was that the most full and satisfactory 
 evidence should be produced, it would follow that where it appeared there were others 
 present, they should be also produced ; or where a person, from his situation, had a better 
 view of the transaction, one who had a less favorable position should not be received ; or 
 where it appeared that another could give a more detailed account of the affair, one who 
 could not give so full a one should be excluded, although there may be no doubt as to his 
 knowledge of the facts to which he deposes." 
 
 Particular instances bf the application of the rule under consideration, to cases where a 
 writing of any kind exists, evidentiary of the facts sought to be established, will be found 
 in a subsequent part of this work, and the requisite proof dispensing with the production 
 of the best evidence, the doctrine of notice to produce papers under the control of the 
 opposite party, the kind of evidence admissible, after a foundation has thus been laid for 
 introducing that which is inferior in its character, together with various other matters 
 connected with this head, will there be fully treated of and the illustrations given. 
 
 I It should be observed here, however, that whatever written evidence exists of the facts 
 sought to be proved by parol, whether the existence of such evidence appear on the direct 
 or cross-examination of the witness introduced, makes no difference. Its disclosure, at 
 any period of the trial, brings its importance into view as the best evidence. Hence, 
 though a party may conduct his examination so as to prove the contents of a writing, and 
 keep. its existence out of sight, if it turn out that it. is the highest evidence, and should 
 have been produced by him ; whenever its existence appears, tlie inferior evidence given 
 will be excluded altogetlper. Boon v. Dyke's Legatees, 3 Monroe, 529, 581 ; Bex v. The 
 Inhabitants of Padstow, 4 Barn. &,Adol. 208, S. P. So, though the writing be not the 
 foundation of the action, but comes in question collaterally, the highest evidence of its 
 execution must be produced. Roberts v. Tennell, 3 Monioe, 247, 250. And the original 
 
CH. IX.] The Beat Evidence. 471 
 
 *569 *The present rule is satisfied by the production of, the hest attainable 
 evidence. In requiring the production of the best evidence appli- 
 cable to each particular fact, it is meant that no evidence of a nature merely 
 substitutionary shall be received when the primary evidence is 
 *570 producible. *By substitutionary evidence^is meant such evidence as 
 implies the existence of primary or more original information. 
 If a party oflfer a copy of a deed or -will where he ought to produce the 
 original, this raises .a presumption that there is something in the original 
 deed or will which would make against the party ; and therefore the copy,i 
 in such case, is not evidence. And the rule being general in its application, 
 it would not be sufficient to rebut this presumption in any particular casOj' 
 so as to let in the substitutionary evidence. Thus, it would be of no avail 
 to prove that the copy tendered in evidence was in every respect quite 
 correct, it would still be inadmissible while it was in the power of the party 
 to produce the original. But if he prove the original deed or will to be in 
 the hands of the adverse party, who refuses to produce it after receiving a 
 regular notice for that purpose — or if he prove that the original has been 
 lost or destroyed without his default — no such presumption can reasonably 
 be made, and a copy will be admitted, because such a copy is the best 
 evidence that can be adduced. (1) 
 
 in such cases, as in others, must he shown or its non-production legally excused. Cope v. 
 Arberry, 2 J. J. Marsh. 296. . 
 
 The following decisions may, perhaps, be most appropriately introduced by way of con- 
 cluding this note. Upon an information for passing a counterfeit sixteen penny piece, it 
 was held that, before any evidence of its want of genuineness could be received, the piece 
 itself "must be produced. State v. Osborn, 1 Boot's Eep. 153. So, in ordinary cases of a 
 writing charged to be a forgery. State v. Blodget, Id. 534. But where the information 
 was for counterfeiting only, and the prosecutor had never been able to get hold of the 
 money, he was allowed to prove the defendant's confession respecting his having made 
 counterfeit pieces of the denomination specified in the information, ■without producing 
 them. State v. Phelps, 2 Root's Rep. 87. 
 
 In a case before Lord Kenyon, at Nisi Prius, a witness was asked whether the plaintiff's 
 bushel measure had not been tried and found to correspond with the public Belford 
 bushel. But his Lordship was of opinion that the question could not be asked, inasmuch 
 as " the best evidence the case would admit of was a production of both measures in 
 court, and a comparison of them before the jury." Chenie v. Watson, Peake's Addit, 
 Cas. 123. 8ed quere. 
 
 (As a further illustration of the rule which requires the best evidence to be given, it is 
 held in recent cases that where an officer attempts to justify the taking of personal pro- 
 perty under an execution, the judgment record and executisu must be produced, and a 
 levy and sale shown under it. Underbill v. Reinor, 2 Hilton, 819. That, in an action to 
 charge the defendant, who was sheriff, but not sued as such for the wrongful taking of 
 personal property by his deputy, it is necessary to prove the agency of the latter by pro- 
 ducing the original appointment on file, and showing its execution. Curtis v. Fay, 37 
 Barb. 64. That official character must be shown where defendant justifies the taking of 
 property under process issued by an officer. Colton v, Beardsley, 88 Barb. 29. That an. 
 execution substituted by order of the court in place of one *hich has been lost, may be 
 proved as original evidence without again showing the loss of the original. Buckle v. 
 Luce, 1 Comst. 163. The issue of an execution having been proved by an entry of a 
 deceased attorney, it was shown that search had been made in the clerk's office for the 
 execution which could not be found, that the person then sheriff had had his house 
 burned, removed next, and died, and that on inquiry of the members of his family, it 
 could not be found ; and this was held sufficient evidence of loss to admit secondary 
 evidence of its contents. Leland v. Cameron, 81 N. Y. 115. Where a party seeks to 
 prove a transfer of title to personal property, and it appears on cross-examination, that a 
 bill of sale was given on the purchase, the writing must be proved, and the parol proof 
 of sale previously given vrill be stricken out. Dunne v. Hewitt, 2 Denio, 687.) 
 
 (1) Gilb. Bv. 13 ; B. N. P. 293 ; Garnons v. Swift, 1 Taunt. 507 ; Henry v. Leigh, 3 
 Camp. 499. See post, Vol'. II, Of Secondary Emderwe. In proving a lost deed, its exist- 
 ence, execution aijd delivery must be dearly shown ; Moore y. Livingston, 28 Barb. 543 ; 
 if it appears that there were subscribing witnesses to the de%d, they must be called ; 7 
 Wend. 125 : and its contents must be clearly shown ; McBumey v. Cutler, 18 Barb. 203 ; 
 or so much of its cont^MiS as will enable the court to determine the character of the 
 instrument ; Metcalf v. Tan Benthuysen, 3 Comst. 424 ; Bemer v. Bank of Columbia, 9 
 
472 Q/" *^ JRule requiring [ch. ix. 
 
 Evidence of this nature is usually termed seconcldi-}/ evidence, it not 
 being original or primary. 
 
 Where there is no substitution of evidence, but only a selection of weaker 
 for stronger proofs, or an omission to supply all the proofs capable of being 
 produced, the rule is not infringed: the rule of law does not require 
 the strongest possible assurance of a fact.(l) If a deed, for 
 *671 *example, or a will, is attested by several subscribing witnesses, the 
 execution may be proved by one of them : or, if none of those wit- 
 nesses can be produced, proof of the signature of one witness will be 
 
 Wheat. 581 ; the parties and the premises conveyed ; Kent v. Harcourt, 33 Barh. 491 ; so 
 in a proceeding to establish a lost will ; Everitt v. Everitt, 41 Barb. 385. 
 
 (1) Note 164. — Questions respecting the admissibility of evidence are entirely different 
 from those which respect its suBBciency and effect. Columbian Ins. Co. v. Lawrence, 3 
 Peters' Bep. 25, 44, per Marshall, C. J. And in general, if the distinction bf written and 
 unwritten, or direct and circumstantial, does not exist between the evidence offered 
 and what is withheld, that which is offered will be admitted, though Jess satisfactory than 
 some other which the party might adduce. No rule of law requires aU the evidence, or 
 the strongest evidence of the matter in dispute ; but only that is excluded, which, from the 
 nature of the case, supposes evidence superior in quality or grade beliindf in the power of 
 the party. See per Daggett, J., Barnum v. Bamum, 9 Conn. Rep. 242, 248, 249, and 
 Ainsworth v. Greenlee, 1 Hawks' Kep. 190 ; also the remarks of Henderson, J., Governor 
 V. Roberts, 2 Hawks' Rep. 26, and the authorities cited in connection with that case, note 
 163. See likewise 1 Big. Dig. 322, § 11. Accordingly, where a bill purported to be 
 accepted by S. R., Market Place, Birmingham, it was held that the result of inquiries 
 made at Birmingham by the prosecutor,-^who was not acquainted with the place, was 
 evidence for the jury to prove the non-existence of the party whose name was used, 
 though neither the best nor the usual evidence in such cases. " A banker from Birming- 
 ham, or an overseer," it seems, would have been the most satisfactory witness. Rex v. 
 King, 5 Carr. & Payne, 123. See, also, Rex v. Backler, Id. 118. But even after such 
 testimony has been introduced, the same principle which dictates the rule requiring the 
 best evidence may frequently be advantageously applied in assigning to it its due 
 importance in tlie scale of credibility. ' For, as has been justly observed by Mr. Evans, 
 " when weaker aiW less satisfactory testimony is tendered in support of a fact, the nature 
 of which will admit of elucidation from proofs of a more direct and explicit character, the 
 same caution which rejects evidence of an inferior degree, When higher evidence might 
 be produced, will awaken suspicion ; and it will reasonably he supposed that a more per- 
 fect exposition of the subject would have laid open deficiencies and objections which a 
 more obscure and uncertain representation was intended to conceal. But there is still an 
 important distinction to be attended to : the rules for the admission of evidence are 
 absolute and imperative and will not admit of any relaxation from considerations of 
 inconvenience and expense ; whereas in forming a judgment upon the adequacy of testi- 
 mony, in particular cases, circumstances which remove the cause of suspicion may also be 
 admitted to obviate the eff*t." 2 Ev. Poth. 149. And so they may be, where the rule 
 operates in its utmost rigor. See amie, note 163. But considerations of mere inconven- 
 ience and ex/pens6 would probably have no influence in laying a foundation for secondary 
 evidence, and this is doubtless what the learned writer intends. 
 
 We have already remarked {ante, note 163), that the rule which forbids the substitution 
 of inferior for primary evidence, is never relaxed so far as to authorize the introduction of 
 mere hearsay, or other evidence intrinsically incompetent. Within that principle, letters 
 or private papers written by a third person are excluded, because their contents are infe- 
 rior to the testimony of the individual by whom they were written. Vasse v. MifHin, 4 
 Wash. C. C. Rep. 519. See, also, poii, of the text, and the notes. In Cotton v. James, 
 however (Mood. & Malk. 273), letters bearing post-murks before an act of bankruptcy, and 
 found in the alleged bankrupt's possession after it, containing statements material to the 
 act of bankruptcy, were held admissible against the bankrupt, without calling the writer, 
 as evidence to show that he received intimation of particular facts, though not to prove 
 their truth. The testimony of a witness, taken down in writing by a magistrate, cannot 
 be used as evidence in chief of the facts stated by him ; it may, however, be used to con- 
 tradict and impeach him. State v. M'Leod, 1 Hawks' Rep. 344. Anfl where, in an action 
 for malicious prosecution, the plaintiff introduced the justice, before Whom the complaint 
 charged as malicious was made, who being sworn and examined in chief, was cross- 
 examined by the defendant, and the Common Pleas allowed him to testify on such 
 cross-examination, as to what the witnesses swore to on the complaint bdfore him, though 
 objected to ; upon writ of error brought; the Supreme Court reversed the judgment upon 
 that ground; holding, that to substitute the relation of the justice, under such circum- 
 stances, for the testimony of the witnesses, was a violation of the plainest rules of evi- 
 dence. Richards v. Poulke, 3 Hamm. Rep. 53. 
 
CH. IX.] The Best Eoidence. 473 
 
 sufficient ; for the proof is, as far as it goes, complete, and not inferior in its 
 kind to any that can be produced : nor can it be inferred merely fi-om the 
 absence of further proof of the same kind, that such additional proof would, 
 be inconsistent with that already produced.(l) Even the testimony of a 
 deceased subscribing witness, given on a former trial, if otherwise admis- 
 sible, may supersede the necessity of calling a survivor. (2) 
 
 Upon the same principle, for the purpose of proving handwriting, it is 
 
 not necessary to call the supposed writer himself. (3) So, where a 
 *5'72 notice *had been given %p produce a letter, written by a plaintiff to 
 
 a defendant, it was held, that its contents might be proved by any 
 person acquainted with them, although it was in the plaintiff's power to 
 produce the clerk who wrote the letter. (4) 
 
 JProof of negative, when not necessary. In prosecutions, where it is neces- 
 sary to prove that the act with which the prisoner is charged was done 
 without the consent or against the will of some other person (as upon indict- 
 ments for unlawfully killing deer or taking fish), it is not m general 
 indispensably necessary to call that person as a witness on the part of the 
 prosecution, in order to prove the negative, namely, that he did not give 
 
 his consent. (5) 
 
 1 . 
 
 (1) See Ansty v. Downing, 3 Stra. 1253 ; B. N. P. 364. A different rule prevails in equity 
 ■with regard to wills. See Gresl. Bv. 120. 
 
 (2) Wright V. Doe d. Tatliam, 1 A. & B. 8. 
 
 Under a recent Bnglish statute the attesting witness need not be called, where no attes- 
 tation is requisite ; the instrument may be proved in the same manner as if there were no 
 attesting witness to it (17 & 18 Vict. c. 135, enacted in 1854) ; it may be proved by the 
 admission of the party executing it (Hall v. Phelps, 3 John. R. 451 ; Sloan v. Ehle, 16 Id. 
 201 ; Palmer v. Manning, 4 Denio, 131-; Pentz v. Winterbottom, 5 Id. 51) ; or by proof of 
 the signature of the attesting witness, and that he is beyond the jurisdiction of the court. 
 People V. Bowland, 5 Barb. 449. 
 
 (3) R. V. Hurley, 2 Mo. & li. 473. On a bank prosecution, it was not thought necessary 
 to disprove the cashier's handwriting, by calling the cashier. Hughes's Case, 2 East P. 
 C. 1003 ; M'Guire's Case, Id. ; Case of Bank Prosecutions, R. & R. 378. In an early case it 
 was thought necessary to disprove handwriting, by calling the party whose receipt had 
 been altered. Smith's Case, 2 East P. C. 1000. 
 
 (4) Liebman v. Pooley, 1 Stark. R. 167. On an indictment for perjury, it is not neces- 
 sary to call the clerk who wrote the jurat. R. v. Benson, 2 Camp. 608. See 3 Burr. 1189. 
 
 Note 165. — In an action for a malicious prosecution in North Carolina, the plaintiff, to 
 establish his case, offered the proceedings before the magistrate, had in the prosecution 
 charged as malicious, and verified the same by witnesses who proved the magistrate's 
 handwriting. The Supreme Coiut held this was correct ; for though the best evidence is 
 required, ^et the rule does not require the strongest possible assurance. " Whether a 
 signature is proved by the person who made it, or by one acquainted with the hand- 
 writing, the Mnd of proof is exactly the same. They are both primary, since the knowledge 
 of both is acquired by the same means ; although it may be that the evidence of the writer 
 is in degree stronger than the other." Ainsworth v. Greenlee, 1 Hawks' Rep. 190. But 
 in McKee v. Executors of Myers (Addison's Rep. 31), where the plaintiff sought to prove 
 an order drawn by the defendant's agent, and signed by such agent, with the defendant's 
 name ; held, that the agent must be called, as the best evidence. Per Curiam .\ " This is 
 not the case of a note or order, subscribed by the maker or drawer ; in that case, if there 
 be no subscribing witness, proof of handwriting is sufficient ; here the person who wrote 
 the note and subscribed the name is uninterested, is the best witness, and ought to be 
 here." This case, however, seems anomalous. The fact of the agency was made out ; and 
 where a person who is the acknowledged agent of another, makes a contract by letter or 
 other writing, proof of the agent's handwriting, has, we believe, been very uniformly con- 
 sidered suflScient evidence of the contract without calling the agent. Daniel v. Hill, 
 Norris' Peake, 40 ; Fairlie v. Hastings, 10 Vesey, juu., 136, S. P. 
 
 (5) Allen's Case, 1 Mo. Cr. Ca. 154; R. v. Hazy, 8 C. & P. 458. And see R. v. Hurley, 8 
 Mo. & R. 473. At one time it appears to have been thought necessary to call the owner 
 as a witness. R. v. Rogers, 3 Camp. 654. See Lehman v. Brooklyn, 29 Barb. 334. 
 
 There are several classes of cases to be more fully noticed hereafter, in which the plain- 
 tiff is called upon to allege and prove a negative. Thus, in an action against a common 
 carrier, the plaintiff alleges, among other things, the delivery of the goods to the carrier 
 for transportation to the place named, and that they Jiave not been delivered there. Edwards 
 on Bailments, 566. Or in an action for a penalty, given by statute, unless a general form 
 
 Vol. L 60 ^ 
 
^74 Of the Buh requiring the Best Eoidence. [ch. ix. 
 
 Some misapprehension as to the . nature and extent of the rule has 
 *5V3 been *occasioned by the case of "Williams v. The East liidia Com- 
 pany, (l) where the question was whether the defendants had put on 
 board the plaintiff's ship some articles of a combustible and dangerous kind, 
 witliout giviag due notice of their nature to the master of the ship, or to 
 any other person employed in its navigation. It appeared in evidence at 
 the trial, that the goods were delivered by the officer of the defendants, with 
 a written prder to the plai»tiff to receive them, in which order nothing was 
 said as to their nature; that they were received by the chief mate of the 
 plaintiff's ship, who had since died ; and that no other , person was present 
 ^t the time of the delivery. It was further proved, by the captain of the 
 ship and the second mate, that no communication had been made to either 
 of them, nor, as far as they knew, to any other person on board. Upon this 
 evidence, the plaintiff, who had to prove the negative, was nonsuited, on the 
 ground that he had not given the best evidence of the want of notice, which 
 it was in his, power to produce, by calling the company's officer, who 
 delivered the articles on board. And the nonsuit was afterwards affirmed 
 by the Court of King's Bench. "The best evidence," said Lord Ellen- 
 borough, C. J., in delivering the opinion of the court, "should have been 
 given, of which the nature of the case was capable. The best evidence was 
 to have been had, by calling, in the first instance, upon the persons imme- 
 diately and officially employed in the -delivering and in the receiving of the 
 goods on board, who appear in this case to have been the first mate on 
 the one side, and the military conductor, the defendant's officer, on the other : 
 and though one of these persons, the mate, was dead, that did not warrant 
 the plaintiff in resorting to an inferior and secondary species of testimony 
 (namely, the presumption and inference arising from a non-communication 
 to the other persons on board), as long as the military conductor, the other 
 living witness, immediately and primarily concerned in the transaction of 
 shipping the goods on board, could be resorted to ; and no impossibility 
 of resorting to this evidence, the proper and primary evidence on the sub- 
 ject, is suggested to exist in this case." It is to be observed, that the 
 evidence in this case, which was received, was not secondary in its nature, 
 inasmuch as it would have been admissible, notwithstanding what was said 
 to have been the primary evidence had been produced ; and it is difficult to 
 consider upon what principle it could have been substituted for such piimary 
 evidence, in case of its failure in consequence of the death of witnesses. 
 The case, therefore, appears to be one in which there was a failure of the 
 proper measure of proof, and not a substitution of secondary for primary 
 evidence. (2) 
 
 of declaring is expressly authorized, the complaint must set forth the particular acts or 
 omiasiona which constitute the cause of action. Cole v. Smith, 4 John. E. 193 ; Bigelow v. 
 Johnson, 13 Id. 428 ; 15 Id. 5 ; The People v. Brooks, 4 Denio, 469. So where a statute 
 pronounces certain acts unlawful, such as traveling on the Sabbath, " unless in cases of 
 charity or necessity, '&c.," the plaintiff must in his complaint negative the excepdons 
 (First Baptist Church, &o., v. U . & S. B. E. Co., 6 Barb. 313 ; Street v. Smith, 1 B. & Ad. 
 94) ; and it is a general principle that the plaintiff must prove the allegations in his com- 
 plaint. 1 Greenl. Ev. § 78. 
 
 m 3 East, 192. 
 
 (2) On the subject of ■tvhat is the proper measure of proof in cases similar to that in 
 the text, see Koster v. Eeed (6 B. & C. 19). The strength of proof required will depend 
 materially on the facility afforded to the opposite party for explanation or contradiction. 
 By Lord Tenterden, C. J., in E. v. Burdett, 4 B. & A. 168. See further, on this subject, 
 post, On Presumptions. 
 
 Note 166. — Mr. Starkie considers Williams v. The East India Company, cited In the 
 text, as an instance of mere failure in the measure of proof; he takes for granted that 
 the testimony of the captain and second mate was at all events admissible, and from this 
 endeavors to show, that the case is not one coming strictly within the principle which 
 forbids the substitution of inferior for primary evidence. 8 Starkie's Ev. 396. It is true, 
 the testimony was, received at the trial without objection, as it seems from the report ; 
 
CH. IX.] Writing to bejprqduced. 475 
 
 *574 21he rule relates to the qucdity of evidence, i^ot quantity^ That the 
 
 rule in question relates o'nly to th,* quality, and, not, to the quantity 
 
 or strength of the evidence, is further illustrated by the, cases, in which it 
 
 has been held that the entries or hearsay statements of deceased persons 
 
 are receiva,ble in evidence, notwithstanding the same facts might be proved, 
 
 by living witnesses. Thqiigh all information must be traced to its source, 
 
 if possible, yet, if there are several distinct sources of infornj ation 
 
 *675 *a8 to the same fapt, it is not, in general, necessary to show that they 
 
 have all been exhausted before secondary evidence can be resorted to. 
 
 Thus, an entry made by a deceased collector is proof of the fact of the 
 
 money having been ,paid, without calling thp persons who paid it to him.(l) 
 
 One of the most ordinary occasions to which' the present rule is 
 
 applicable, relates to the substitution of oral for written . evidence. The 
 
 qualifications under; wjiiph oral, evidence may sometimes, be received, notr 
 
 withstanding the existence- of written evidence, will be more particularly 
 
 ponsidered .in the second part of this work ; in the present place, it is only 
 
 material to inquire in what case it is not allowable to substitute entirely, 
 
 the one for the other. 
 
 First, then, oral evidence cannot be substituted for any instrument in 
 writing (which is not merely the memorandum of some other fact), the 
 
 tut the language of the court plainly imports that they fegarded it as not only insuffi- 
 cient, but utterly incompetent. Lord EUenborough, who delivered the opinion, commenceg 
 that portion of it relating to this subject, with a distinct applidli.tion of the rule requiring 
 the best evidence ; after whichit ip remarked, that " the best evidence was to have been 
 had by calling, in the first instancs, upon^the persons immediately and officially employed," 
 &c. ; and throughout the whole, the, testimony of the captain and second mate is spoken 
 of as " inferior and secondary," while that of the conductor is treated as the " proper 
 and primary evidence." Indeed, we understand his Lordship as denying, in unequivocal 
 terms, that the plaintiff had a right to resort to the testimony of 'the former, so long as 
 the impossibility of procuring that of the latter was not shown. 
 
 No good reason is perceived, therefore, for taking this case out of the class in which 
 our author has placed it, as a strong illustration of the rule requiring the highest evi- 
 dence ; for, although that rule does not usually operate by way of exclusion, where the 
 evidence offered and that which is withheld is aJl parol (see ante, note 163) ; yet there are 
 instances of its application to the more or less adequate representation of facts. 2 Ev. 
 Poth. 149 ; Swift's Bv. 157. The testimony of the captain and second mate, under the 
 existing asppct of the case, was nothing more than presumptive or circumstantial evi- 
 dence ; and where that which jp positive and direct in its character, is within the power 
 of a party, the former is secondary (3 Starkie's Bv. 515 ; 2 Ev. Poth. 340) ; and being so, 
 its inadmissibility would seem to follow as an inevitable corollary. 
 
 In Massachusetts, where, upon an indictment for having in possession a counterfeit 
 bank note, it appeared that the note was passed to one P., who suffered it to remain out 
 of his hands for a long time, during which it was lodged with a magistrate, who might 
 have been produced as a, witness ; held, that the testimony of P. and his wife, who swore 
 positively to the note from certain accidental marks upon it, was improperly received, 
 unless they had made a private artifitial mark upon it ; and also, that the testimony of 
 the magistrate was indispensable, upon the general principle requiring the best evidence. 
 Commonwealth v. Eannison, 4 Mass. Kep. 646. Upon an indictment, however, against a 
 miller for stealing, where it appeared that P. sent barilla to the defendant's mill, and after 
 it was ground, a mixture of three-fourths barilla, and one-fourth plaster of paris; was 
 returned by the same truckman who took the barilla to the mill, it was held that the 
 government need not produce the truckman to prove that it was not adulterated in 
 the transportation, although there was merely circumstantial evidence of its having been 
 done by the miller. Commonwealth v. James, 1 I'ick. 875. But note, that the gist of 
 the action was the stealing not the adulteration of the barilla ; whereas, in Williams v. 
 The East India Company, the fact of notice not having been given, was the direct founda- 
 tion of the prosecution. 
 
 In larceny of the wife's wearing apparel, she is not only a competent witness to identify 
 them, but the most proper one. And it seems not necessary to produce the husband, to 
 prove non-consent to the taking in such case ; for, " it is unreasonable to suppose, in the 
 absence of proof, that the husband should sell his wife's clothes ; and still more unreason- 
 able that he should give them away.V The Peoplev. Williams, 3 Wheel. Crim. Oases, 18. 
 
 (1) By Park, J., in Middleton v. Melton, 10 B. & C. 327, 328. The rule as tb the proof 
 of instruments by subscribing witnesses, some of whom are dead, is otherwise, in conse- 
 quence of the intervention of another principle. See Wright v. Doe d. Tatham, 1 A. & B. 8. 
 
476 Of the Hule requiring the Best Evidence. [ch; ix. 
 
 existence of which instFuinent is disputed, and its production material to 
 the issue between parties, or to the credit of the witnesses. One advan- 
 tage, derived from the application of this i-ule, is, that the court acquires a 
 knowledge of the whole contents of the instrument, which may have an 
 effect very different from a statement of a part. " I have always," says 
 Lord Tenterden, C. J.,(l) "acted most strictly oh the rule, that what is in 
 writing shall only be ptoved by the writing itself. My experience has 
 taught me the extreme danger of relying on the recollection of witnesses, 
 however honest, as to the contents of written instruments. They may b.e. 
 so easily mistaken, that I think the purposes of justice require the strict 
 enforcement of the rule." But the same learned judge observed, in another 
 case,(2) that much injustice is frequently done by a rigid adherence to the 
 rule, where a party is turned round for want of a stamp, or put to the unne- 
 cessary expense of the penalty and stamping an instrument, which has 
 nothing to do with the particular subject matter of the action. 
 
 This rule, however, does not apply where the instrument in question is 
 shown to be destroyed or lost, or where the party who relies upon it is 
 otherwise incapacitated from producing it. 
 
 It was decided in The Queen's Case, (3) that it is not allowable, on cross- 
 eiamination, in the statement of a question to a witness, to represent the 
 contents of a letter, and to ask the witness whether he wrote^a letter to 
 any person with such contents, or to the like effect ; because the counsel 
 might thus put 'the court in possession of a part only of the contents 
 *576 of a *written paper. And even if the witness acknowledges the 
 letter to be in his handwriting, he cannot be questioned as to its 
 contents, but the whole letter must be read in evidence. So, where the 
 inquiry was as to the existence of allotments made by inclosure commis- 
 sioners in another mode than in the execution of their award, it was 
 considered that, if such allotments were made, they must be in writing, 
 and therefore the minutes of the commissioners were the primary evidence 
 of them, and no other evidence of such allotments could be given until a 
 search had been made after the minutes. (4) 
 
 Rule as to substituting oral evidence. Oral evidence cannot be substituted 
 for any written conveyance or contract. (5) The written instrument in such 
 cases may in some measure be regarded as the ultimate fact to be proved, 
 especially where the question relates to the proof of deeds and negotiable 
 securities ; and the principal object of committing contracts of every kind to 
 writing is for preserving a memorial of ■ them, more lasting and more 
 authentic than oral testimony. Accordingly a plaintiff is not permitted to 
 recover in an action for use and occupation, or in ejectment, where there is a 
 written contract of tenancy, or upon any contract which is in writing, 
 *5V7 without producing it. (6) If it *comes out upon cross-examination 
 
 (1) In Vincent v. Cole, M. & M. 258. See, also, by Best, C. J., in Strother v. Baxr, 5 
 Bing. 151. 
 
 (2) Reid v. Batte, M. & M. 414. 
 
 (3) 2 B. & B. 286. See, also, Crowley v. Page, 7 C. & P. 789. In the Union Bank v. 
 Mott, 39 Barb. 180, a witness called to prove the existence of a written dissolution of 
 partnership, testified on his cross-examination that the firm was dissolved at a certain 
 time, it was held that this was an affirmative fact and could not be upheld as a cross- 
 examination. The loss of the paper must be first accounted for ; Leland v. Cameron 81 
 N. Y. 115. 
 
 (4) Bendyshe v. Pearse, 1 B. & B. 460. 
 <5)B. N.'P. 246. 
 
 (6) Brewer v. Palmer, 3 Esp. 213, recognized in Ramsbottom v. Tunbridge. 2 M. & S. 
 484 ; Fenn d. Thomas v. Griffith, 6 Binn. 538 ; R. v. Castle Morton, 8 B. & A. 588. As to 
 policies of insurance, see R. v. Gibson, R. & R. 138 ; R. v. Doran, 1 Esp. 127 : R. v. EUi- 
 combe, 1 Mo. & R. 260 ; S. C, 5 C. & P. 522. 
 
 Note 167. — The case of Doe dem. Wt^d v. Morris, cited in the text, simply decides that, 
 in order to exclude parol evidence of a contract, it must appear that the contract was 
 
<3H. IX.] Writing to be produced. 477 
 
 reduced to writing ; there, the landlord who brought the ejectment, proved payment of 
 rent by the defendant, and notice to quit ; but on cross-examining his witness, it appeared 
 that an agreement in writing, relative to the land controversy, was produced on a former 
 trial ; the witness, however, did not know the contents of it, and it was not shown that the 
 agreement related to the existing tenancy between the plaintiff and the defendant. Upon 
 a motion made to set aside the verdict. Lord KUenborough, in giving judgment, makes use 
 of these words : " How can we say that the plaintiff ought to have been non-suited for the 
 want of giving the best evidence of the tenancy, unless it appeared there was other and 
 better evidence of it in an agreement in writing between the landlord and his tenant which 
 the landlord kept back ? Enough ought, at least, to appear, to show that the paper not 
 produced was better evidence of the terms of the tenancy than the evidence which was 
 received." See Dunn v. Hewitt, 3 Denio, 637, and Clark v. Pearborn, 6 Duer, 309, and 
 post, note on p. 648. 
 
 Where, in support of a general couni! for use and occupation, the plaintiff offered to 
 prove the acknowledgment of the defendant, that he had hired'and occupied the premises 
 during the period in question, agreeing to pay therefor a certain sum ; and it appeared 
 that, during such period, there was an outstanding written agreement for a lease of the 
 premises in the hands of the plaintiff,, which, through failure of the event on the happen- 
 ing of which it was to take effect, never became operative ; held, th^ in the absence of 
 evidence to show that such acknowledgment referred to the written agreement, the evi- 
 dence offered was admissible. Buell v. Cook, 5 Conn. Rep. 206. But if the occupation 
 had been founded in fact upon the agreement, though it was defective and authorized no 
 Buch occupancy, it must have been produced as the best evidence. Id., per Bosmer, C. J. 
 And where the plaintiff brought his action to recover the value of certain fixtures, and it 
 appeared that there was a written memorandum respecting the manner in which the 
 value should be ascertained, signed by the plaintiff, but not by the defendant ; held, that 
 Buch writing need not be produced by the plaintiff. Wilson v. Bowie, 1 Carr. & Payne, 8. 
 So in an action for work and labor, the plaintiff having proved the value of the work done 
 and closed his case, one of the defendant's witnesses swore there was a memorandum in 
 vmting, containing an estimate at which the work was to be done ; and produced a copy, 
 unstamped, in the plaintiff's handwriting, not signed by either party ; and held, upon the 
 authority of Doe dem. Wood v. Morris (poat, 578), that the plaintiff was not precluded 
 from recovering, as it did not appear whether the original memorandum was in existence. 
 Stevens v. Pinney, 2 Moore's Bep. 349, cited in the text from 8 Taunton, 328. But iii 
 another case, where the action was for work, a witness for the plaintiff, on cross-examina- 
 tion, stated that the work had commenced under a written contract ; but that certain 
 items which the plaintiff relied on were not contained in it ; and held, that the plaintiff 
 could not recover without producing the written agreement, though a particular item was 
 .proceeded on, after an admission by the defendant that it was an extra. Vincent v. Cole, 
 l,Mood. & Malk. 257. The plaintiff's counsel in this case proposed to Iiord Tenterden, C. 
 J., who presided, that his Lordship should look into the agreement, which was in court 
 unstamped, to see whether it comprehended the item sought to be recovered ; but this 
 was refused, because of the great inconvenience of such a course. And in ejectment, a 
 witness of the plaintiff was called to prove that the defendant succeeded one A. T., who 
 occupied under the plaintiff, and through whom the defendant claimed. On his cross- 
 examination, the witness stated he had drawn an agreement in writing between the 
 plaintiff and A. T., relative to the premises in question, and that he had fiequently heard 
 the latter say he held under the plaintiff, but not that he held under that agreement. The 
 court considered that the existence of a written lease having been shown by the plaintiff's 
 own witness, he was bound to produce it as the best evidence, and so decided. Fenn dem. 
 Thomas v. Griffith, 4 Moore & Payne, 299. See Doe v. Harvey, 8 Bing. 339, stated post. 
 
 So, wherever there is a written lease between the parties, and the terms of it come in 
 question in any way, the lease itself must be produced as the highest evidence. Thus, in 
 Brewer v. Palmer (3 Esp. Rep. 213), Lord Eldon, in an action for use and occupation, non- 
 suited the plaintiff because of the non-production of the written lease. This, though a 
 Nisi PriuB case, is a leading one, and was confirmed by the King's Bench in Ramsbottom 
 V. Tunbridge (2 Maule & Selw. 434). Other authorities are to the same import. See 
 Hodges V. Drakeford, 1 New Rep. 271. In Cotterill v. Hobby (4 Barn. & Cress. 465), the 
 action was case for an injury to plaintiff's reversionary interest ; H. was caUed as a wit- 
 ness, and testified that he was tenant to the plaintiff under a written agreement ; and 
 held, that such agreement must be produced to prove the terms of holding. See Strother 
 V. Barr. 5 Bing. 136. So, to prove a settlement of a pauper pursuant to 6 Geo. IV, c. 57. 
 § 2, by the honafide renting of a tenement for a year at £10 ; if the agreement between 
 the landlord and the tenant was in writing, it must be produced. Rex v. The InhabitantB 
 of Merthyr Tidvil, 1 Bam. & Adol. 29 ; Bex v. The Inhabitants of Pad8tow,.4 Id. 208. See 
 also Rex v. The Inhabitants of Castle Morton, 3 Bam. & Aid. 588 ; sed contra, see Rex v. 
 The Inhabitants of Holy Trinity, 7 Bam. & Cress. 611 ; S. C, 1 Mann. & Eyl. 444. And 
 in trespass for mesne profits, where the plaintiff having proved a judgment in ejectment 
 against P., offered to prove by a son of P. that he put the defendant in possession; 
 it appearing, however, that he had done this under a written agreement ; heid inadmis- 
 
47^ Of the RuU requiring the Best Msidence. [ch. ik; 
 
 of the plaintiff's witnesses, that there is a -written agreeineht, he must piro- 
 duoe it ; but if he makes out a prima facie case, without showing 
 *678 that there was any written contract, the other *party, if he relies on 
 that written contract, will have to produce it;(l) otherwise the plain* 
 tiff might, on a mere assertion of the defendant, be non-suited for the non- 
 production of a written instrument, which, if it had been produced, might 
 turn out not to apply to the contract in question. It is not sufficient for 
 nonsuiting the plaintiff that his witness states there is a written agreement 
 relative to the land. (2) 'Nor is it' sufficient, for necessitating the pl&,intiff'8 
 production of a written agreement, that one of his witnesses has stated, on 
 cross-examjnatioji, tha;t he has heard fro«i the plaintiff's attorney of there 
 being such an agr,eeement.(3) 
 
 In like manner, if the case on the part of the plaintiff has been proved) 
 and it does not appear that the contract was in writing, he is not to be 
 nonsuited by the defendant's producing an unstamped written instrument 
 purporting to contain the terms of the contract, (4) even although the plain^ 
 tiff has had notice to. produce the instrument. (5) 
 
 The question how far the admissions of a party to a suit wiU dispense 
 with the production of written instruments, has been already fully dis- 
 cussed. (6) 
 
 Where the single fact of the occupation of land is in issue, such fact may 
 be proved by payment of rent, (7) declarations of the tenant, or other parol 
 evidence sufficient to establish it, notwithstanding it appears that the holding 
 is under an agreement, in writing. (8) So where a tenant wais to hold lands 
 according to certain rules in writing under which a former tenant held, but 
 the length of his term was agreed on orally, it was held, that it was not 
 necessary to produce the rules, where the object was merely to show the 
 expiration of the term. (9) But where the question is not merely as to 
 the occupation of land, (10) but as to the person under whom 
 *579 *it is held, or to whom the demise was made,(ll) or what amount of 
 
 sible, and that the writing must be produced, to show who was the defendant's landlord, 
 and the terms upon which he occupied. Doe v. Harvey, 8 Bing. 239. See Fenn dem. 
 Thomas v. Griffith, 4 Moore & Payne, 299, supra. '■ 
 
 Where a father had a deed written of certain negroes to his children, and immedi- 
 ately after delivery of the negroes, executed the deed ; in trover, brought by such child- 
 ren for the negroes, held, that they must produce the deed as the best evidence. Foster 
 V. Cherry, 2 Nott & M'Cord, 367. 
 
 (1) R. V. Padatow, 4 B. & Ad. 208; Fennd. Thomas v. Griffith,! 6 Bing. 533; Reed v. 
 Deere, 7 B. & C. 261, 266 ; Stevens v. Pinney, 8 Taunt. 327 ; R. v. Rawden, 8 B. & C. 708. 
 SDenio, 637. 
 
 The terms and existence of a written contract cannot be proved by parol evidence, unless 
 its non-production has been first accounted for or excused. Creed v. White, 11 Humph. 
 649 : Smith v. Smith, 1 Sand. 206 ; Marshall v. Hany, 9 Gill, 251 ; Yarborough v. Hudson, 
 19 Ala. 653. If lost, or if recorded, and the record of it burnt, and the original destroyed, 
 the contents may be proved by parol. Dowrey v. Logan, 12 B. Mon. 236 ; Bosworth v. 
 Bryan, 14 Mis. 575 ; Wade v. Wade, 12 111. 89 ; De Lane v. Moore, 14 How. U. S. 253. 
 The entire contents must be proved. Sizer v. Burt, 4 Denio, 426. 
 
 (2) Doe d. Wood v. Morris, 12 East, 237 ; Doe d. Shearwood v. Pearson, cit. Id. 238, and 
 5 Bing. 150. 
 
 (3) Watson v. King, 8 C. B. 608. 
 
 (4) Fielder v. Bay, 6 Bing. 882. 
 
 (5) Magnay v Knight, 1 M. & G. 944. 
 
 (6) Bupra, Chap. 7, Sect. 12, OfAdmimons hp Parties to the Suit. 
 
 (7) See Doe d. Lord V. Cargo, 6 C. B. 90. 
 
 (8) R. V. Holy Trinity, Hull, 7 B. & C. 611, commented on in Strother v. Barr, 5 Bing. 
 136,138. 
 
 f9) Hey v. Moorhoufle^ 6 N. C. 52. 
 
 (10) Coe V. Harvey, 8 Bing. 241. In Strother v. Barr (5 Bing 136), the Court of Coflimon 
 Pleas were divided upon the question, whether, in an action for injury to the reversion, it 
 is competent to prove the occupier's liolding by parol, when he holds under a written 
 agreement. See CotteriU v. Hobby, 4 B. & C; 465* 
 
 (11) R. V, Rawden, 8 B. & C. 708. 
 
CH. IX.] When Writinff need not be produced. 479 
 
 rent was reserved,(l) or whether any rent was ,due,(2) if there he a lease 
 or a written agreement, showing the fact, it must be produced. 
 
 Collateral writing need not beprodicGed. In like manner, where a written 
 communication or agreement between parties is collateral to the question 
 in issue, it need not be produced; as where the writing is a mere proposal 
 or memorandum, which has not been acted upon; (3) or where, during an 
 employment und^r a written contract, a distinct and separate order is given 
 by parol, (4) But if the work has been commenced under an agreement in 
 writing, and the plaLntLff 's claim is for extra work, and it does not clearly 
 appear that such work was separate from that included in the agreenien|; 
 and done under a distinct order, the plaintiff will be compelled to produce 
 the original agreement ; for it may be of importance with respect to the 
 extra; work, as furnishing some evidence of the rate at which such work 
 should be paid for. (5) 
 
 On the question whether a judge, in such a case, jpiay examine an 
 unstamped agreement, in order to see whether it referred to items claimed 
 independently of it. Lord Tenterden, C. J., has observed, such a practice 
 would be attended with much inconvenience.(6), 
 
 It has been held that written proposals made pending a negotiation, 
 might be admitted, without a stamp, as forming a step in the evidence of 
 the contract. (7) 
 
 Jn action to recover document. Where the action is not brought upon an 
 instrument for the non-performance of its terms, but in tort for its conver- 
 sion or detention, its production is not necessary, and the plaintiff 
 *580 may give parol evidence to show *its identity, without giving notice 
 to the defendant to produce it, (8) or even though the defendant 
 offers to produce it. (9) As was remarked by Sir James Mansfield, C. J., (10) 
 there is no distinction, as to this purpose, between written instruments and 
 other articles, between trover for a promissory note and trover for a wagoh 
 and horses. 
 
 Mule as to substituting written evidence. The instances which occur on 
 the subject Of this rule^ most commonly relate to the reception of oral 
 testimony ; but the principle of the rule applies equally to the substitution 
 
 (1) R. V. Merthyr Tidvil, 1 B. & Ad. 29. 
 (3) Augustien v. Challis, 1 Exch. 279. 
 
 (3) Doe d. Bingham v. Cartwright, 3 B. & A, 336 ; Dalisen v. Stark, 4 Esp. 163 ; Haw- ^ 
 , kins V. Warre, 3 B. & C. 690 ; Wilson v. Bowie, 1 C. & P. 8 ; Kamsbottom v. Tunbridge, 3 
 
 M. & S. 434 ; R. v. St. Martin'p, Leicester, 2' A. & E. 210 ; R. v. Wrangle, Id. 514 ; Ingram 
 v. Lea, 2 Camp. 521 ; Trewhitt v. Lambert, 10 A. & E. 470. 
 
 So as to a written offer of compromise. Snodgrass v. Branch Bk. at Decatur, 25 Ala. 
 161. So a receipt of a mere bill of parcels, receipted, for goods sold, need not be produced 
 to prove delivery or a sale. Southwick v. Hayden, 7 Cowen, 334 ; Dunn v. Hewitt, 8 
 Denio, 63?. 
 
 (4) Reid V. Batte, M. & M. 413. 
 
 (5) Vincent v. Cole, 1*. & M. 357 ; S. C, 3 C. & P. 481 ; Buxton v. Cornish, 12 M. & W. 
 426. 
 
 (6) In Vincent v. Cole, ut supra, overruling the dictmn of Bayley, J., in R. v. Pendleton, 
 15 East, 449. See by Parke, B., in Buxton v. Cornish, 12 M. & W. 430'. 
 
 (7) Drant v. Brown, 3 B. & C. 665 ; Bethell v. Blencowe, 3 M. & G. 119 ; Edgar v. Blick, 
 1 Stark. R. 464. 
 
 (8) Bucher v. Jarret, 3 B. & P. 143 ; How v. Hall, 14 East, 274 ; Soott v. Jones, 4 Taunt. 
 865 ; Read v. Gamble, 10 A. & E. 597. See also Dover v. Maestaer, 5 Esp. 92 ; Bayne v. 
 Stone, 4 Esp. 13 ; Davis v. Reynolds, 1 Stark. B. 115 ; S. C, 4 Camp. 267. 
 
 The action is notice, where the defendant is shown to be in possession. Biseel v. Drake, 
 19 John. R. 66 ; Hays v. Riddle, 1 Sand. 248. See also Decker v. Mathews, 2 Keman R. 
 813. 
 
 (9) Whitehead v. Scott, 1 Mo. & R. 3. 
 
 (18) In JoUey v. Taylor, 1 Camp. 143. These cases overrule Cowan v. Abrahams, 1 Esp. 
 60. 
 
480 Of the Jtule requiring the Best Moidence. [ch. ix, 
 
 of secondary written testimony. Thus, on the trial of a person charged 
 ■with having willfully, with intent to injure an insurance company, set fire 
 to a house, which he had insured at the company's office, it was held not 
 allowable to prove the insurance by the books of the company, without 
 previous regular notice to the prisoner to produce the policy. ( 1) 
 
 So, if it should be material for a plaintiff, in reply to the case of the 
 defendant, to prove the contents of a registered deed, which is in the defend- 
 ant's possession, the memorial of the deed would not be admissible for that 
 purpose, unless there had been previously a notice given to the defendant 
 to produce the original ;(2) and numerous other instances might be cited to 
 the like effect. 
 
 The rule has reference to the substitution of evidence, whether it be of 
 the same or of inferior degree. 
 
 Where it is necessary to show the contents of a manuscript, a printed 
 paper purporting to be a copy of it, is not receivable without notice to 
 produce the manuscript; (3) but with regard to printed papers, all of them 
 worked off at the same impression are originals, in the nature of duplicate 
 originals ; and if one or more can be traced to the possession of a party, 
 another impression will be evidence against him without notice to pro- 
 duce. (4) Thus, when it is wanted to show that a party had notice 
 *581 of what *is contained in a particular newspaper, if it is proved that 
 he had a copy of the paper, the contents may be shown by producing 
 another paper. (5) 
 
 In one case,(6) Lord EUenborough, C. J., ruled, that a duplicate taken 
 from an autograph, at one impression, by means of a copying machine, was 
 not an original, but only a copy, though it was more likely to 'be accu- 
 rate than one taken by successive imitations. (7) In such a case a fac simile 
 is produced, but it is still only a copy ; but there are soma machines by 
 which two or more impressions are taken off at the same time, and of which 
 not any one can be said to be more an original than another ; in these cases 
 it would seem that all the impressions are as much duplicate originals as the 
 impressions from a printing press. 
 
 Entries in judicial proceedings. Where the law requires an entry or 
 memorandum of particular transactions to be made in a court of justice, 
 the official entry or memorandum excludes all independent evidence of the 
 transaction. Thus parol evidence was held not admissible to prove the 
 taking of oaths required by the Toleration Act, as the fact would be recorded 
 in the court where the oaths were taken. (8) In like manner, parol evidence 
 is not admissible of the day on which a cause came on to be tried, because, 
 it is matter of record, and ought to be proved as such. (9) The original 
 
 (1) R. V. Doran, 1 Esp. 127 ; E. v. Gilson, R. & R. 138 ; R. v. ElUoombe, 1 Mo. & R. 360 ; 
 S. C, 5 C. & P. 523. 
 
 (3) Molton q. t. V. Harris, 3 Esp. 548. It would be admissible as secondary evidence 
 against the party by whom the deed was registered, and those claiming imder him. 
 WoUaston v. Hakewill, 8 M. & G. 297 ; Doe d. Loseombe v. Clifford, 2 C. & K. 448. See 
 also Doe d. Ubele v. Kilmer, 2 C. & P. 389 ; Collins v. Maule, 8 C. & P. 552 ; Jenkins v. 
 Biddulph, By. & M. 239. 
 
 (3) By Bayley, J., and Abbott, J., in B. v. Watson, 2 Stark. R. 129, 130, 181 ; S. C, 32 
 How. St. Tr. 83, 86. 
 
 r4J Ibid. Huff v. Bennett, 4 Sand. 120. 
 
 (5) By Lord EUenborough, C. J., B. v. Watson, supra. 
 
 (6) Nodin v. Murray, 3 Camp. 238. 
 
 (7) A copy taken in this manner, worked by the witness, who produces it, is admissible 
 secondary evidence, without showing that it has been compared with the original. 
 Simpson v. Thoreton, 3 Mo. & R. 433. 
 
 (8) R. V. Hube, Peake, 134. See Underbill v. Witts, as to the production of the ward- 
 mote book in order to prove the election of a person as constable. 
 
 (9) B. N. P. 243 ; Thomas v. Ansley, 6 Esp. 80 ; B. v. Page, Id. 83 ; E. v. lies, Hwrdr. 
 118 ; B. V. Browne, M. & M. 319 ; S. C, 3 C. & P. S72. As to the necessity of producing: 
 
CH. IX.] Substitution of Written Eoidence. 481 
 
 appointment of a surveyor of highways, under the hands and seal's of jus- 
 tioes,{l) is the best evidence of such appointment ; and a minute-book kept 
 by the justices' clerk is only secondary evidence. (2) Upon a question 
 ■whether a particular abbey was an inferior one or not, DttgdaWs Monas- 
 ticon was refused, because the original record was to be found in the 
 
 Augmentation Office. (3). 
 *582 *The document delivered out by the registrar of the Court of Chancery 
 
 as the order of the court, is the original order, and it is not necessary 
 to show that it has been compared with any book of the orders of the 
 court. (4) 
 
 It has been seen that the discharge of a defendant, by a court of quarter 
 sessions, under an insolvent debtors' act, cannot be proved by parol evi- 
 dence, nor by proof of an acknowledgment of the discharge of the plaintiff 
 himself; for the discharge may have been irregular and void, or may have 
 been mistaken by the plaintiff; a judicial act of this kind should be proved 
 by calling the clerk of the peace, and giving in evidence the judgment or 
 adjudication of the court for the debtor's discharge. (5) 
 
 the warrant, under which a party has been apprehended, in order to show the fact of the 
 apprehension, see R. v. Phillips, R. & R. 369. 
 
 In like manner a record of a judgment of a competent court naturalizing an alien, 
 reciting the necessary facts, cannot be impeached by parol evidence. McCarty v. Marsh 
 and others, 1 Selden, 263. So a certificate of conviction made by a court of special 
 sessions, and filed in the clerk's office, as prescribed by statute, is evidence of the facts 
 Bleated in it. The People v. Powers, 2 Selden, 50; S. C, 7 Barb. 463. And a judgment 
 upon an issue once litigated is conclusive upon the parties litigating it. White v. Coats- 
 worth, 2 Selden, 137 ; Embury v. Conner, 3 Comst. 523 ; Doty v. Brown, 4 Id. 71 ; Douglkss 
 V. Wickwire, 19 Conn. 489. 
 
 (1) Pursuant to 13 Geo. II., c. 78. 
 
 (2) R. V. Pembridge, Car. & M. 157. 
 
 (3) Salk. 381. 
 
 (4) Ludlow (Mayor, &c.) v. Charlton, 9 C. & P. 343. 
 
 (5) Seott V. Clare, 3 Camp. 336. 
 
 Note 168. — Summerset v. Adamson, 1 Bing 73, S. P. See post, of the text, and a note 
 relating to proof of an insolvent's discharge. 
 
 The admission of a party out of court will not supply the place of a record. Thus, in 
 trover, an admission by the plaintiff that the property in question was taken by virtue of 
 an attachment, does not make out a j ustification for the defendant who justifies under the 
 attachment, but he must produce the record. Jenner v. Joliffe, 6 John. Rep. 9 ; Salters v. 
 Tobias, 3 Paige, 338. So in an action against a person for non-attendance as a witness, 
 the subpoena must be produced, and his confession that he had been served with the sub- 
 poena, does not dispense with the necessity of its production. Hasbrouck v. . Baker, 10 
 John. Rep. 849. And in Vermont where, in an action upon a note, the defense was that 
 the estate which the defendant represented, had been declared insolvent and the claim 
 barred, as not having been presented to the commissioners ; held, that the defendant's 
 confession, that the claim hfwi been exhibited to the commissioners, could not be received, 
 as the commissioners' report to the j udge of probate was the best evidence. Franklin v. 
 Brownson, 3 Tayl. 103. The case of the Welland Canal Company v. Hathaway (8 Wend. 
 480), furnishes a strong illustration of the doctrine on this subject. There, the defendant 
 had entered into a contract with the company, and given a receipt to them, in the name 
 by which they were known ; yet held, that when such company sued as a corporation, the 
 admissions implied by these acts of the defendant, did not relieve them from proving that 
 they were a corporation by the highest evidence. And Nelson, J., delivering the opinion 
 of the court (Id. 486), says : " It may be laid down, I think, as an undeniable proposition, 
 that the admissions of a party are competent evidence against himself, only in cases where 
 parol evidence would be admissible to establish the same facts, or, in other words, where 
 there is not in the judgment of the law, higher and better evidence in existence to be 
 produced. It would be a dangerous innovation upon the rules of evidence, to give any 
 greater effect to confessions or admissions of a party, unless in open court, and the tendency 
 would be to dispense with the production of the most solemn documentary evidence." 
 Bee The Dutchess Cotton Manufactory v. Davis, 14 John. Rep. 338. But where the 
 defendant has accepted an office under the supposed corporation, and obtained money in 
 that capacity, he is estopped from denying its existence as such, and cannot require proof . 
 of their charter. All Saints Church v. Lovett, 1 Hall's Rep. N. Y. S. C. 191. Where a 
 party subscribes for stock, and the agreement recites the formation of plaintiff as a cor- 
 poration, the due filing of its articles of association, with the necessary affidavits, he is 
 
 Vol. L 61 
 
482 Of the Rule requiring the JBest Eoidence. [ch. vs.. 
 
 The rule under consideration may be further illustrated bjr cases relating 
 to examinations of prisoners under charges of felony or misdemeanor, in 
 which cases the magistrate is expressly enjoined to take the examination in 
 writing. Parol" testimony cannot be received of a prisoner's confession 
 before the committing magistrate, unless it be first proved that the confep- 
 sion was not taken in writing ; as it must be presumed until the contrary is 
 shown, that it was so taken, in conformity with the statute, 11 <fc 12 
 *583 *Vict. c. 42. But if it were clearly shown that the prisoner's state- 
 ment was not taken in writing, parol proof of what he said will be 
 admissible. (1) If the written examination of a prisoner is given in evi- 
 dence against him, it will not preclude the prosecutor from giving evidence 
 of other statements made by him when not under examination; (2) but 
 whether it will be competent for the prosecutor to give evidence of other 
 statements made by the prisoner during his examination, and relating to 
 the same matter on which he was examined, but which statement has been 
 omitted by the commifftng magistrate, seems very doubtful ; this question 
 will be more fully considered in a subsequent part of this work. (3) It has 
 been held, that a witness, on cross-examination, may admit not having 
 mentioned a fact in an examination before commissioners of bankrupt, but 
 if he chooses he may ask for the written examination, before he makes any 
 admission. (4) 
 
 estopped from denying the corporate character thus recognized. Black River & TJ. R. R. 
 Co. V. Clark, 35 N. Y. 208 ; 17 Barb. 383. Dealing with plaintiff as a corporation, and 
 praof of the recording of its articles in the county clerk's office, is suflBcient proof of its 
 corporate character. Leanordsville Bank v. Willard. 25 N. Y. 574. 
 
 (1) Decided by all the judges except one, in R. v. Hall, cited in R. v. Lambe, 1 Lea. 559 ; 
 E. v. Fearnshire, Id. 203 ; R. v. Jacobs, Id. 809. And see R. v. Huet, 2 Lea. 821. The pro- 
 per evidence, that the prisoner's statement was not taken down in writing, is by calling 
 the magistrate's clerk, or the magistrate himself. R. v. Harris, Ry. & M,,3,38.;, R, y. Par- 
 ker, 3 Russ., C. & M., by Greaves, 876, n. p ; R. v. Phillips, Id. ; Phillips v. Wimburn, 4 C. 
 & P. 273. See also R. v. Shillcock, 2 Russ., C. & M., vi supra, n. «. 
 
 (2) R. V. M'Carty, Macn. 45 ; E. v. Reason, 17 How. St. Tr. 35. 
 
 (3) See on this subject. Vol. II, Chap. 3, Sect. 7, Of Depositions and Ehxmninations. 
 
 (4) Eidley v. Qyde, 1 Mo. & E. 197. As to dying declarations taken down in writing, 
 see R. v. Gray, 7 C. & P. 231. 
 
 Note 169. — And so of an examination of a prisoner taken before a magistrate, who is 
 required by law to reduce the same to writing ; the minutes of the magistrate must, in 
 such cases, be produced as the best evidence. See ante, note 151. If, in point of fact, 
 however, any particular declaration of the prisoner was not reduced to writing, parol evid- 
 ence may be given of it. The presumption is, that it was taken down, and the onus to 
 show it was not, is upon the party seeking to introduce the parol evidence. Note 151. 
 And in Eowland v. Ashley (1 Ry. & Mood. 231), the same principle was applied to the 
 examination of a party before commissioners of bankrupt. It must appear, however, that 
 what is sought to be added to the written examination, was material to the inquiry before 
 the commissioners; and very strong proof ought to be adduced, that the parties said 
 what the commissioners so omitted. Id. It has been held, however, that parol evidence 
 of what a bankrupt said, on his last examination, cannot be received, though it should 
 appear that no part was taken down in writing. Rex v. Walters 5 Carr. & Payne, 138. 
 
 In Massachusetts, where it was proved that a justice of the peace, before whom a clerk 
 of a militia company was alleged to have been sworn, made no record of administering 
 the oath, the testimony of witnesses present when the oath was administered, was held 
 competent evidence. Bassett v. Marshall, 9 Mass. Rep., 812. The justice was first called, 
 however, in this case, and testified that no record of the oath was made, and though he 
 could not positively affirm that he ever administered the oath, he had some faint recollec- 
 tion of having done so. Id. Where an oath of office has been administered by a justice 
 of the peace, his certificate in that state seems to be the " regular and legal evidence." 
 Colburn v. Ellis, 5 Mass. Rep. 427. See Willes v. Battelle. 11 Id. 477. 
 
 In New York, where a record of conviction was destroyed, parol evidence of it was held 
 nevertheless to be inadmissible, inasmuch as a transcript of the certificate, required by 1 
 R. L. 463, 8 2 (K. & R.), to be sent to the Court of Exchequer, was the next best evidence. 
 Bilts V. Colvin, 14 John Rep. 183. 
 
 Tlie non-attendance of a witness, duly subpoenaed, may be proved by parol ; there is 
 not necessarily any record or memorandum made by any officer of the court of such fact, 
 nor is it the duty of the clerk to enter in his minutes the names of the witnesses called 
 
CH. IX.] Meamination of Prisoners. 483 
 
 *584 *A written examination of a prisoner is not admissible, as has been 
 seen, if taken on oath, or even if purporting to be so taken ;{1) nor 
 can secondary evidence be admitted; the objection in each case is, that 
 as the prisoner was subjected to an oath, the statement is to be presumed 
 not to have been voluntary. (2) 
 
 Where the " confession of a prisoner before a magistrate has been taken 
 down in writing, but the written examination is informal — in not being 
 signed, or from being signed before the evidence was concluded, or from 
 some other informality, so that it cannot be received -;- there is no longer 
 any ground for excluding parol evidence ; for the parol evidence is in such 
 cases adduced, not in substitution of the official document, but according 
 to its effect at common law ; the prisoner's statement may, therefore,, be 
 proved by a witness who heard it made. And the informal examination 
 may, like any other cptemporaneous document, not of an official character, 
 be used, if necessary, by the witness who wrote it, to refresh his 
 *585 memory *in giving the evidence This subject will be more particu- 
 larly considered in the second part of this work, which treats of the 
 admissibility and effect of examinations. (3) 
 
 If upon the preliminary hearing of a charge, the magistrate's clerk takes 
 a note of what the witnesses say, but the note is not signed either by the 
 witness or the magistrate, and the substance of it is not returned with 
 the depositions subsequently taken, parol evidence is admissible of what was 
 said on the first occasion, as the clerk's note is not a deposition taken under 
 the statutes. (4) In like manner, parol evidence is admissible of what is said 
 by the witnesses, upon a charge before a magistrate in a matter of summary 
 
 by the erier, at the request of the party whose cause is about to be brought on, and there- 
 fore there is no presumption of higher evidence. Cogswell v. Meech, 13 Wend. 147. In 
 replevin against an officer for goods attached by Um under a writ that had never been 
 returned, on account of the suit having been settled by the parties ; held, that as the 
 officer's omission to make a return, was excused by the act of the parties in suppressing 
 the suit, he might produce the writ, and then prove by parol that the goods were taken 
 by virtue of it. Prost v. Shepleigh, 7 Qreenl. 236. And if process issues without the 
 intervention of the court, and no record is made of it, the fact of its having issued may be 
 proved by parol. Beers v. Botsford, 3 Day's Rep. 159. Where an officer was authorized 
 to issue a distress against the collector, and on return thereof unsatisfied, to issue another 
 against the selectmen, and on like return of the latter, to issue one against the town ; 
 held, that proof of a distress having issued against the town was prima faeie evidence 
 that the others had been previously issued against the collector and the selectmen. Beers 
 V. Botsford, svpra. 
 
 Evidence of what was proved on a former trial for the purpose of showing the ground 
 of recovery, cannot be received without producing the record of such trial. Cooper v. 
 Watson, 10 Wend. 302. And in New Tork, where it is sought to connect a suit before a 
 justice, dismissed by reason of a plea of title, with a suit subsequently prosecuted for the 
 same cause in the Common Pleas, the written proceedings before the justice must be pro- 
 duced ; the facts cannot be established by parol. Webb v. Alexander, 7 Wend. 281. 
 
 In some cases, where a record exists of the fact, it does not exclude parol evidence. 
 Thus, parol evidence has been held admissible to prove the«iefendant an inn-keeper in an 
 aption against him as such, although his license is on record. Owings v. Wyant, 3 Harr. 
 &' M'Hen. 393. In Massachusetts, parol evidence of marriage is received, although 
 officiating clergymen and magistrates are-by statute required to keep a record of all mar- 
 riages solemnized before them, and to return annually, to the clerk of the town where 
 they reside, a certificate of the names of all persons by them joined in marriage. Com- 
 monwealth V. Norcross, 9 Mass. Hep. 493. And the certificate of a clergyman, in such 
 case, is inferior to his oath, and cannot be received. Ellis v. Ellis, 11 Mass. Rep. 92. See 
 post, of the text, and the notes. And so, parol proof of the age of persons and the time 
 of their death, is constantly received there, though a statute requires that births and 
 deaths shall be recorded by the town clerks ; and parents, householders, &c., are liable to 
 a penalty for neglecting to give notice of births in their families. 4 Starkie's Ev. 1044, 
 note 1. 
 
 (1) Bwpra, Chap. 7, Sect. 11, 0/ Oonfeagione: 
 
 (2) See B. v. Wheeley, 8 C. & P. 250 ; R. v. Rivers, 7 C. & P. 177. 
 
 (3) See Vol. II, Chap. 1, Sect. 7, Of Depositions and Examinations. 
 
 (4) Jeans V. Wheedon, 2 Mo. & R. 486. "* 
 
484 Of the Jiule requiring the Best Moidence. [ch. ix. 
 
 jurisdiction, though the clerk may have taken notes of the evidence, as in 
 such a case the magistrate is not required to take down the depositions 
 in writing, (l.) 
 
 Hearsay and secondary evidence. The suhstitution of the hearsay of a 
 person, in the place of his testimony, falls obviously within the principle of 
 the rule under consideration. It has been before mentioned that where 
 hearsay evidence is admissible, it will be necessary, in compliance with the 
 rule which excludes secondary evidence, to show that the person whose 
 hearsay is offered, is deceased. So depositions are not receivable, whilst the 
 parties who made them are alive, or capable of being produced as witnesses. (2) 
 
 The rule applies not only to the evidence produced in a cause, but also to 
 writings which a, witness may use to refresh his memory; and, therefore, 
 where a cotemporaneous entry has been made, it seems that a copy of such 
 entry, made at a subsequent period, is not admissible for the purpose of 
 refreshing a witness's memory. (3) 
 
 (1) Robinson v. Vaughton, 8 C. & P. 352. 
 
 (2) See Vol. II, Chap. 1, Sect. 7, Of Depositions and Meaminatwns. 
 
 . (3) By Patteson, J., in Burton v. Plummer, 2 A. & B. 344; Jones v. Stroud, 3 C. & P. 
 196 ; Doe V. Perkins, 8 T. B. 749 ; Home v. Mackenzie, 6 CI. & F. 628. And see post. Vol. 
 II, Chap. 9, Sect. 1, Of the Examination of Witnesses. 
 
 ' Note 170. — The English rule, though not explicitly stated in the text, is, that the wit- 
 ness may refresh his memory by any book or paper, if he can afterward swear to the fact 
 from recollection ; but if he cannot so swear, any ferther than as iinding it in the book or 
 paper, it must then be produced. See post, of the text. Maugham v.Hnbbard, 2 Mann. 
 & Byl. 5. 
 
 The American cases are not uniform. They seem agreed, however, that a mere memo- 
 randum, or entry, is in no case evidence, per se, of the facts stated in it, but may in all 
 cases be used by the person making it, when called on as a witness, to refresh his recol- 
 lection. Thus, where an entry on a bank teller's book was offered ; held, not evidence, 
 per se, but proper in connection with the testimony of the teller. Courtney v. The Com- 
 monwealth, 5 Band. Rep. 666. And a memorandum by a notary's derk (e. g. of a notice 
 of non-payment) is of no farther use, than to guide the recollection of the clerk as a wit- 
 ness. The Farmers' Bank of Lancaster v. Whitehall, 16 Serg. & Bawle, 90. In an action 
 on a note by the indorsee against the indorser, the plaintiff offered a memorandum of the 
 notary's clerk to prove search for the maker, and notice to the indorser ; the clerk having 
 left for a foreign port some few days before the trial ; this was held inadmissible, the 
 memorandum being no evidence. The protest of the note, showing due diligence, was 
 also holden to be a mere memorandum, and therefore inadmissible. CummiDgs v. Fisher, 
 Anth. N. P. 1. See also note a to this case. 
 
 In, New York, it is provided by statute that the certificate of a notary, under his hand 
 and seal of office, of presentment and protest of a bill or note, and of the service of notice 
 thereof on any or all the parties to the bill or note, specifying the mode of giving the 
 notice, and the reputed residence of the party and the post-office nearest thereto, shall be 
 presumptive evidence of the facts contained in such certificate, unless the defendant shall 
 annex to his plea an affidavit denying the fact of having received notice. Laws of N. Y., 
 Sess. 56, p. 395, 8 8. So also, it seems, in Kentucky. Bank of Kentucky v. Pursley. 3 
 Monroe, 238, 340. 
 
 Where an action was brovight for goods sold, and the plaintiff offered proof that the 
 entries in his books charging the defendant with the goods, were made by his clerk, who 
 had gone to the West Indies ; held, that such evidence was not competent to establish 
 the claim. Kenedy v. Fairman, 1 Hayw. Eep. 458 ; S. P., Whitefield v. Walk, 2 Id. 34. 
 So where the age of a defendant had been written in a Bible ; held, that this memoran- 
 dum was not the beat evidence, and the age might be proved by parol. v. , 
 
 1 M'Cord's Rep. 164 ; Butler v. Young, 3 Bibb, 530 ; Berry v. Waring, 3 Harr. & Gill, 103. 
 See post, notes. And a memorandum by a district attorney, of the confession of a pris- 
 oner, need not be produced ; but he may give oral evidence of such confession. Patton v. 
 Freeman, Coxe's Eep. 113. And see ante, note 151. 
 
 ' In South Carolina, the testimony of a witness who swears positively from written 
 memoranda, though they do not call to his memory the facts, is held not only admissible, 
 but better evidence than unaided recollection. Pearson v. Wightman, 1 Rop. Const. Ct. 
 344 ; I-Iaig v. Newton, Id. 433 ; Sharp v. Bingley, Id. 373. See Brown v. Anderson, 
 1 Monroe, 198. (The same doctrine is now hold in thia State. Guy v. Mead, 23 N. 
 Y. 462.) 
 
 The general principle, however, deducible from a majority of the cases in this country, 
 will be found, we apprehend, toiha this, that the witness may inspect notes or memo- 
 
CH. IX.J Hearsay and Secondary Evidence. 485 
 
 *586 *It is an established rule that where there are duplicate originals, all 
 the originals must be accounted for, before secondary evidence can 
 be given of any one of theni.(l) 
 
 Where a writing is not the fact itself to be proved, and not made an ap- 
 propriate instrument of evidence by private compact, nor required by law, 
 there is no reason why it should exclude oral or other evidence. It often 
 happens that an oral communication or an act is accompanied by a state- 
 ment in writing to the same effect, yet parol proof of the communication 
 or act may be received, provided it be adduced, not to prove the contents 
 of the writing and in substitution of it, but as independent evidence. 
 Thus, the payment of money, or an admission to that effect, may be proved 
 by oral evidence, though a written 'receipt was given. (2) Where 
 *587 *there is both a verbal and written notice to deliver up property, and 
 the one has no reference to the other, it is not necessary that the 
 written notice should be produced. (3) 
 
 randa to refresh Ms recollection ; and then, if he can, with a safe conscience, swear to the 
 facts independent of the notes or memoranda, he is competent to testify ; but he will not 
 be permittted to read his notes or memoranda to the jury ; nor can they be permitted as 
 evidence to the court or jury in any sense. Juniata Bank v. Brown, 5 Serg. & Eawle, 87 ; 
 Robertson v. Lynch, 18 John. Rep. 451 ; Feeter v. Heath, 11 Wend. Rep. 477 ; Smith v. 
 Lane, 12 Serg. & Rawle, 87. (The witness refreshes his memory by looking at the memo- 
 randum and then swears from recollection. To refresh his memory he may use extracts 
 from his own books, without prodnciug them. Rowland v. Sheriff of Queens Co., 5 Sand. 
 219. To give the entries any force as evidence, the books must be produced, and it. must 
 be shown that the entries were truly made. Wood v. Ambler, 4 Selden R. 170, and cases 
 there cited.) 
 
 (1) By Parke, B., in Alivon v. Furnival, 1 C, M. & R. 293. See also B. N. P. 254 ; R. v. 
 Castleton, 6 T. R..236. 
 
 (2) Rambert v. Cohen, 4 Esp. 213 ; Jacob v. Lindsay, 1 East, 460. 
 
 (3) Smith V. Young, 1 Camp. 439. 
 
 Note 171 — It is in general true, that where written evidence of a fact exists, all parol 
 evidence is excluded, but the rule is not universal. Per Thompson, J., Keene v. Meade, 
 3 Peters' Rep. 1, 7. And see post of the text, and the notes ; 4 Starkie's Ev. 1054. If a 
 note, for instance, has been giv^n as evidence of a loan, the action may be brought for the 
 money lent, and this proved by parol : the note must indeed be produced on the trial ; 
 not, however, as the only competent evidence of the loan, but to be canceled, so as to pre- 
 vent its being put into circulation. Keene v. Meade, supra, per Thompson, J. So, wliere 
 the defendant has made an entry in the plaintiff's book, of a sum of money paid by him 
 to the defendant ; the plaintiff need not produce such book for the purpose of establish- 
 ing the payment, but may prove it by a person who knows the tact. Id. And if the 
 defendant has written a letter to the plaintiff, acknowledging such payment, the same 
 principle obtains. Id. per Thompson, J. 
 
 This doctrine prevails as to all written acknowledgments and receipts ; the transaction 
 ■which they are designed to evince, may be proved by the parol testimony of witnesses, 
 without producing the receipts or accounting for the absence of them ; but if the ques- 
 tion be upon the receipts themselves, by whom signed, what are their contents, or the 
 like, they then become the highest evidence, and must be produced. Southwick v, Hay- 
 den, 7 Cowen's Rep. 334 ; Heckert v. Haines, 6 Binn. Rep. 16 ; Wishart v. Downey, 15 
 Serg. & Rawle, 77 ; Romayne v. Duane, 3 Wash. C. C. Rep. 346 ; Townsend v. Atwater, 5 
 Day's Rep. 298. And whether the receipt be of money or specific articles, makes no dif- 
 ference ; the delivery of the latter may be proved by parol, as well as the payment of the 
 former, though there be a written acknowledgment of the fact in existence. Southwick 
 V. Hayden, supra. 
 
 In Wishart v. Downey (sitpra), Huston, J., intimates a doubt as to the reasonableness 
 and propriety of this exception to the general rule, but he considers the question as set- 
 tled in Pennsylvania, by the previous authority of Heckert v . Haines (supra). At the 
 same time, however, he says that " if notice to produce the recaipts is given, and they are 
 not produced and no reason is given why they are not, it would be matter which ought to 
 affect the defendant's case more or less, according to circumstances." And in Virginia, 
 the Court of Appeals, without deciding whether, if a witness speaks positively as to the 
 date and amount of moneys paid, his testimony woilld be equivalent to the receipts them- 
 selves, held, that where a witness could not so speak, his testimony ought not to be 
 received, unless it was previously shown that the receipts were lost, or out of the power 
 of the party seeking to prove payment. Hamlin's Adm'r v. Atkinson, 6 Rand. Rep. 574. 
 
 If it become necessary to prove the recelptjitself, and it be attested, the subscribing 
 witness must be called. Heckert v. Haines, 6 Binn. Rep. 16, per Tilghman, C. J. So, to 
 
486 Of the Mule requiring the Best Miidpnce. [ch. ix, 
 
 prove the contents of a lost receipt, attested, the subscribing witness mnst be called. 
 M'Mahan v. M'Grsid7, 5 Serg. & Eawle, 314. 
 
 In Louisiana, it seems, if there be a written receipt, it must be produced as the highest 
 evidence, and parol testimony is not admissible of the fact of payment. Beard v. Bijeaux, 
 8 Martin's Lou. Rep. (N. S.) 459. And in Massachusetts, where an administrator, to sup- 
 port his charges in an administration account for payment of taxes, offered witnesses to 
 prove the fact of such payment, held, that the receipts of the collector were better evi- 
 dence, and should be produced. Hall v. Hall, 1 Mass. Kep. 101. But see as to the receipts 
 and written admissions of third persons, the text and the notes on admissions. 
 
 A doctrine similar to that established with respect to receipts, &c., has been applied to 
 bills of parcels; and to prove a purchase of goods^ the bill of parcels, delivered by the 
 vendor to the vendee, need not be produced. Blood v. Harrington, 8 Pick. 553. See 
 Davis V. Reynolds, 1 Starkie's Rep. 115. And a bill of sale of personal property (not being 
 necessary to pass the title) need not be produced by persons claiming under the grantee, 
 in a controversy between them and the grantor, and those claiming under him ; but 
 *588 the former may prove by any other legal *evidence, a title in the person under 
 whom they claim, unless it be alleged that such bill contains other matter than 
 the mere transfer of the property, of which the grantor or those claiming under him 
 could avail themselves, and notice has been given that its production would be required. 
 Givens v. Reynolds, 6 Munf. 191, 200. So, in trover for goods, where a witness was called 
 on the part of the plaintiff, and testified that as deputy sheriff, he took and sold goods 
 corresponding with those claimed by the plaintiff, on an execution against S. N., and 
 produced a paper specifying the goods ; and further that he made a copy from thp paper, 
 which contained an account of the articles purchased by the plaintiff at such sale, and a 
 receipt which was delivered to the plaintiff; and he was then asked by the plaintiff what 
 were the contents of that paper ; on objection taken, which was overruled, and writ of 
 error brought, the Supreme Court held, that it was sufficient for the plaintiff to show 
 that he had purchased the goods at auction, and he need not Have produced the paper. 
 Waring V. Warren, 1 John. Rep. 840. But in an action of assumpsit to recover the value 
 of articles withheld, and to recover back money paid for such as were defective in » pur- 
 chase, made by the plaintiff of the defendant, of a ship and many articles contained in 
 her, it was held that the plaintiff ought to have produced the bill of sale, as the highest 
 evidence of the property conveyed, and the covenants contained in it. Allen v. Potter, 2 
 M'Cord's Rep. 333. 
 
 Parol evidence may be given in Massachusetts of the fact that an executor has posted 
 up notices of his appointment, although there is a provision in the statute for admitting 
 an affidavit made by the executor within a ^ven time ; and the original advertisements 
 or a copy need not be produced. Green v. GiU, 8 Mass. Rep. 111. 
 
 An arbitrator testified that when the parties were before him, a bill was presented spe- 
 cifying the accounts submitted, a copy of which he transmitted to the plaintiff, accompanied 
 by the award ; but the plaintiff denied that the account was received by him ; held, that 
 the plaintiff was not thereby precluded from introducing parol evidence as to the items 
 of his claim, imless the defendant could show that the account came into his possession 
 or under his control. Birkbeck v. Burrows, 2 Hall's Rep. N. Y. S. C. 51. And the sale of 
 a note, given by a third person, may be proved without producing the note. This, how- 
 ever, is only true where no inquiry is made respecting its contents. Lamb v. Moberly, 3 
 Monroe, 179. 
 
 In an action for bribery at an election, it was held that parol evidence was admissible 
 to prove the delivery of the precept to the returning officer, though it appeared that ho 
 had made an indorsement upon the precept, with a view to prove the time of his having 
 received it, and that the indorsement was attested by two witnesses. Gray v. Smithyes, 
 4 Burr. 2273. 
 
 But wherever the contents of any written instrument, as such; are sought to be proved, 
 ' it must be produced. Thus, where the plaintiff in an action for libel, in order to connect 
 ■ the defendant with the publication, introduced a reporter to a public newspaper, who 
 testified that he had given a written statement to the editor of such paper, the contents 
 of which had been communicated by the defendant for the purpose of publication ; and 
 that the newspaper then produced was exactly the same save one or two trifling aJtera- 
 tions not affecting the sense ; held, that what the reporter published in consequence of 
 What passed with the defendant, might be deemed published by the latter, but that the 
 paper could not be road, without producing the written account delivered by the ^vitness 
 to the editor. Adams v. Kelly, Ry. & Mood. 149. And if it become necessary to prove 
 statements made by a deaf and dumb witness, in writing, the written statement itself 
 must be produced, or its absence accounted for. State v. De Wolf, 9 Conn. Rep. 93. But 
 where a statement has been made orally, and taken down in writing by a thini person, as 
 a mere memorandum, the statement may bfe proved independent of the memorandum. 
 See Patton v. Freeman, Coxe's Rep. 113, stated, note 170. Whether a certain book in a 
 public olBce contains deeds and surveys, must be shown by the production of the book 
 itself, and cannot be shown by parol. Denn v. Pond, 1 Coxe, 379. In asurapsit for goods 
 Bold, copies from the invoice book of the'plaintiff's agent residing abroad, and through 
 
CH. IX.] Where Writing Inadmissible. 487 
 
 *689 *Although a parish register is required by law to be made of all 
 marriages, the fact of a marriage may be proved by the testimony 
 of persons who were present at it ; or, where the marriage is not essential 
 to the question in issue, by general reputation. (1) Witnesses are required to 
 subscribe their names to a marriage entry in the register, in order to facili- 
 tate the investigation of proofs of marriages. The mere production of a 
 register, without proof of the identity of the parties married, is insuffi- 
 cient. (2) 
 
 Where a written statement cannot be received on the ground of its being 
 in the nature of hearsay evidence, or for want of a stamp, there is no reason 
 for prohibiting the substance of it from being proved by independent 
 *590 testimony. It has been shown that an informal examination, *taken 
 before a magistrate, will not exclude oral evidence of what a prisoner 
 has stated. For although the witness is allowed to refresh his memory by 
 reading the examination, he is supposed, in notion of law at least, to speak 
 from his memory independently of the written paper. Where a witness 
 read over to the defendant an account in writing, which was signed by the 
 
 whom it waa alleged the goods were delivered, were offered in evidence to prove the sale 
 and delivery; but were rejected. Cooper v. Morrell, 4 Yeates, 341. The day-book, say 
 the court, containing the original transactions as they occurred, proved on oath or admit- 
 ted, must be produced, or parol evidence given of the delivery. Id. The defense being 
 that H. was a joint owner and creditor with the plaintiff, and sold the goods, charging 
 them to the defendant ; it was offered to prove H.'s bpoks by his clerk, without their pro- 
 duction ; on objection, it was held they must be produced, as the best evidence. Keely v. 
 Ord, 1 Dall. 310. Proof that the defendant was an infant, from a family Bible, into 
 which the defendant's age had been copied by his brother from another Bible, where it 
 was entered in the handwriting of the father, by direction of the father, who was dead, 
 was held inadmissible, as not being the best evidence, till the original was shown to have 
 been lost or destroyed. Curtis v. Patton, 6 Serg. and Rawle, 135. But abstracts from the 
 books of the plaintffs, resident out of the jurisdiction of the court, duly verified by the 
 testimony of clerks, have been received as evidence of the reshipment of goods to 
 the defendant. Bell v. Keely, 2 Yeates, 255. 
 
 If it be proposed to establish the contents of a bill of sale, bill of lading, or receipt, it 
 must be produced. Mather v. Goddard, 7 Conn. Rep. 304 ; Givens v. Reynolds, 6 Munf. 
 191, 300. And see the cases before cited in this note, respecting receipts. 
 
 (But a mere bill of parcels, receipted, of the sale of articles, need not be produced to 
 prove the sale ; it is in the nature of a receipt. Blood v. Harrington, 8 Pick. 552. Not 
 so, where a party claims title under a bill of sale. Dunn v. Hewitt, 3 Denio, 637.) 
 
 (1) See B. N. P. 347 ; Evans v. Morgan, 2 C. & J. 453 ; R. v. Allison, R. & R. 109 ; Birt 
 V. Barlow, Doug. 171 ; St. Devereux v. Much Dew Church, 1 W. Bl. 367 ; Morris v. Miller, 
 Id. 632 ; S. C, 4 Burr. 3067 ; Read v. Passer, Peake, 305. See, also, R. v. Durnell, cit. 3 
 C. & K. 459, n. Nor is the evidence of the attesting witness required to prove the hand- 
 writing of the parties in the register. Dong. 174. An entry of a marriage in a day-book 
 is not admissible in evidence, if the entry has been afterwards made in the register. May 
 V. May, Stra. 1073. And see Doe d. Warren v. Bray, 8 B. & C. 813. 
 
 The proof of marriage may be made by circumstances, by evidence sufficient to satisfy 
 the jury. Martin v. Martin, 23 Ala. 86 ; Taylor v. Robinson, 39 Maine, 333. Marriage is 
 a civil contract (Keyes v. Keyes, 2 Foster (N. H.) 553), and must be made according to law. 
 The State v. Bray, 13 Ired. 389. Mutual promises to marry at some future time, though 
 followed by sexual intercourse and the birth of a child, do not constitute a valid marriage. 
 Cheney v. Arnold, 1 Smith (15 N. Y. Rep.), 345. In civil actions, cohabitation raises a 
 presumption of marriage that may be rebutted by showing that the parties afterwards 
 lived separately. Weatherford v. Weatherford, 30 Ala. 639 ; The State v. Winkley, 14 N. 
 H. 480 ; Knower v. Wesson, 13 Met. 148. But cohabitation is not essential to complete 
 the marriage (Potier v. Barclay, 15 Ala. 439 ; Clayton v. Wardell, 4 Comst. 230) ; except 
 in the case of'iin infant, after coming to the age of consent. Shaf her v. The State, 30 
 Ohio, 1. In New York, a certificate of marriage, executed in due form, is made evidence 
 of the fact. 3 R. S. 300, 201 (3d ed.). As to proof by certificate, see Gaines v. Relf 13 
 How. U. S. 473. 
 
 (3) In Woodgate v. Potts (3 C. & K. 457), where, in an action for goods sold, the defend- 
 ant, a female, pleaded her coverture with George Potts. A copy of a register of marriage 
 between George Potts and a female of the same name as the defendant was put in evi- 
 dence, and it was proved that the defendant had cohabited, for several years, with a man 
 whose surname was Potts, but whose Christian name was unknown to the witness. This 
 was held sufficient evidence to go to the jury in support of the plea. 
 
488 Of the Rule re^uirinff the JBest Evidence. [ch. ix. 
 
 defendant, but which could not be used in evidence for want of a receipt 
 stamp, the witness was allowed to refresh his memory by the inspection of 
 the account, and to prove that he called over the items to the defendant, 
 and that the defendant admitted them to be correct. (1) In the same man- 
 ner a verbal admission of a debt is evidence, notwithstanding there may be 
 a written promise to'pay.(2) 
 
 Where an agent for the plaintiff made a verbal agreement with the defend- 
 ant, and afterwards put it down in writing (which was not. signed by the 
 parties), as a memorandum to assist his recollection, such writing is not 
 the best evidence, nor indeed any evidence of the agreement, though it may 
 be used by the agent for the purpose of refreshing his memory. (3) 
 
 In the prosecution of Hunt for a conspiracy, (4) the Court of King's 
 Bench determined that a paper, which had been delivered by the defendant 
 to a person present at a meeting, as a copy of certain resolutions about to 
 be proposed and read, and which was proved to correspond with the resolu- 
 tions afterwards proposed, was properly received at the trial as evidence of 
 those resolutions ; without proof of any previous notice to the defendant to 
 produce the paper from which the resolutions were supposed to be read. 
 This paper was considered, as against the party himself to whom it applied, 
 to be fully as good evidence as any that could be produced. 
 
 In the same case, (5) it was held, that the inscriptions on flags and ban- 
 ners, which had been exhibited to public view, might be proVed by eye 
 witnesses, speaking to what they had seen on the occasion ; and though it 
 appeared that the flags had been seized and taken away by police officers 
 (so that they might have been produced), the evidence was not considered 
 on this account to be less competent ; such inscriptions are, as Abbott, C. 
 J., observed, the public expressions of the sentiments of those who bear 
 them, and have rather the character of speeches than of writings. It may 
 be observed, however, that the oral testimony was in this case adduced for 
 the express purpose of representing accurately the contents of the 
 *591 writing, *and therefore might seem to fall directly within the princi- 
 ple which excludes secondary evidence. 
 Whether resolutions, which have been proposed at public meetings, may 
 be primarily proved by the parol evidence of witnesses, when the person 
 proposing the resolutions appeared to read them from a written paper, was 
 a point much discussed in the prosecution of Sheridan and Kirwan, in Ire- 
 land,(6) who were tried for an ofiense against the Irish Convention Act. 
 The indictment began with averring that divers persons had assembled 
 together, and intending to procure the appointment of a committee of per- 
 sons (of a particular description, -and for a speoiiic object), entered into 
 certain resolutions respecting such committee, the purport and effect of 
 which resolutions were set out at length ; the indictment then proceeded to 
 charge Sheridan with certain acts done by him for the purpose of assisting 
 in forming such committee, and for carrying into effect the resolutions 
 before mentioned. To prove the first averment, the counsel for the prose- 
 cution called a witness, who stated that at a general meeting (at which it 
 was admitted the defendants were not present), the secretary of the meet- 
 
 • (1) Jacob V. Lindsay, 1 Bast, 460. And see Dalisen v. Stark, 4 Esp. 16g. In Maugham 
 V. Hubbard (8 B. & C. 14), a witness, called to prove the payment of money, was allowed 
 to refresh his memory by an unstamped receipt signed by himself. 
 
 (2) Singleton v. Barrett, 3 C. & J. 369. 
 
 (3) Trewhitt v. Lambert, 10 A. & K. 470. See further, on this subject, Vol. II, Chap. 6, 
 Of Private Writings. 
 
 (4) R. v. Hunt, 3 B. & A. 566, 568, 573. See, also, Watson's Case, 33 How. St. Tr. 68, 
 88, 256, 257. 
 
 (5) 3 B. & A. 566. 
 
 (6) A. D. 1811 ; 31 How. St. Tr. 673. And see R. v. Moors, 6 East, 421, n. ; R. v. O'Con- 
 nell. Arm. & Trev. 235, 337. 
 
CH . IX.] Resolutions at Public Meeting. 489 
 
 ing proposed a resolution, and read it from a paper. The proposition was 
 seconded ; the secretary then handed the paper to the chairman, and the 
 chairman read it. The witness was then asked, "What was the resolu- 
 tion ? " This question was objected to on the ground that the absence of 
 the writing itself should be accounted for, before any parol evidence of itS 
 contents could be received. After a very full argument a majority of the 
 court were of opinion, that this was not a case to which the distinction 
 between primary and secondary evidence was strictly applicable : that the 
 proposed evidence was intended to show, not what the paper contained, but 
 what one person proposed, and what the meeting adopted ; in short, to 
 prove the transactions and the general conduct of the assembly ; and that 
 such evidence could not be rejected, because some person present took notes 
 of what passed. The form in which the argument was presented by the 
 solicitor-general was more striking : " A number of persons," he said, 
 " assemble and confer together — they agree to a certain resolution. If it 
 be necessary to prove such a transaction in a criminal trial, would the pro- 
 secutor be bound to produce the resolution in writing ? Would the 
 prosecutor be bound by the manner in which it was taken down by one of 
 the confederates ? If the paper, supposed to contain the resolution, were 
 produced, would that preclude the prosecutor from giving evidence of 
 other matters which took place ? Or suppose, further, that the matter 
 were reduced to writing in such a way as to avoid a criminal imputation, 
 although every sentence of the debate or conversation were criminal, would 
 the prosecutor be bound by the former, and precluded from giving evidence 
 
 of the latter?" 
 *592 *Cases may here be mentioned, which appear at first sight to be 
 
 exceptions to the general rule now under consideration. But in 
 none of these cases, it may be observed, could there be . any ground for 
 presuming that the party offering the proof withheld some better evidence, 
 which, if produced, would make against him. The reason, therefore, 
 upon which the general rule is founded, does not apply to such cases. 
 
 Proof of records. 1. Where it is necessary to prove the contents of 
 any record, or of proceedings of a court of justice, or of entries in court 
 rolls, or in public books or registers, it is sufficient to produce an examined 
 copy.(l) This is on a principle of general convenience, and because it is 
 apparent, that if the contents were misrepresented, there would be obvious 
 means of exposing the fi'aud or error. 
 
 Appointment to 2}ublic office. 2. It is not, in general, necessary to prove 
 the written appointments of public officers ; for this would be attended with 
 general inconvenience ; and a strong presumption arises from the exercise 
 of a public office, that the appointment to it is valid. The cases upon this 
 subject sometimes "appear to be governed by the doctrine of admissions, 
 but it will be seen, by the examples, that the exception is of a more exten- 
 sive nature. In the case of justices of the peace, constables, &c., it is 
 sufficient to prove that they acted in these chara;cters without producing 
 their appointments. (2) And in the case of officers of any branch of the 
 revenue, where the question is whether they are such, proof of being re- 
 puted to be so, or of having exercised the office, is good evidence of the 
 
 (1) See Vol. II, Chap. 3, Sect. 1, Of Records and Judicial Proceedings. 
 
 (2) By Buller, J., in Berryman v. Wise, 4 T. R. 366 ; by all the judges in R. v. Gordon, 
 1 Lea. C. C. 515. 
 
 Note 173.— S. P. Snow v. Peacock, 3 Carr. & Payne, 315, per Best, C. J. In an action 
 by an attorney for fees, an allegation that he is an attorney of the Court of King's Bench 
 is evidenced by showing that he has acted as such. Berryman y. Wise, 4 T. R. 866 ; 
 Pearce v. Whale, 5 Barn. & Cress. 38 ; per Johnson, J., Brown v. Mims, 2 Rep. Const Ck 
 235, 328 ; 4 Starkie's Ev. 373. See note 173. 
 
 Vol. I. 62 
 
490 Of the Rule requiring the Best Evidence, [ch. vs.. 
 
 fact, in any legal proceeding. (1) On an indictment for perjury, committed 
 by the defendant before a surrogate in an Ecclesiastical Court, proof that 
 the person, who administered the oath, acted as surrogate, has been held to 
 be sufficient primal, facie evidence of his appointment and authority. (2) 
 On a like indictment, an affidavit, purporting to be sworn before a public 
 commissioner, was held admissible, without proof of the commission, on 
 
 the ground that a commissioner for taking affidavits was a person 
 *593 acting as a public officer. (3) And proof of *a person's acting as 
 
 sheriff,(4), or under-sheriff, is sufficient proof of his authority to do 
 any act necessary in the course of the office ; as, in the latter case, for 
 
 instance, to make an assignment of a lease, under an execution, in 
 *594 the name of the sheriff. (5) The like proof was held sufficient *on the 
 
 (1) This is expressl5» provided for by stat. 7 & 8 Geo. IV, c. 52, § 17 ; 8 & 9 Vict., c. 87, 
 § 131. And see 8 & 9 Vict., c. 85, 8 7, and c. 93, § 75. 
 (3) E. v. Verelst, 3 Camp. 433 ; S P., R. v. Cresswell, Lond. Sitt. after Mich. 1816. 
 
 (3) R. v. Howard, 1 Mo. & R. 187 ; R. v. Newton, 1 C. & K. 480. 
 
 (4) Bunbury v. Matthews, 1 C. & K. 383. 
 
 (5) Doe d. James: V. Brawn, 5 B. & A. 343. See Plumer v. Brisco, 11 Q. B. 46, as to 
 replevin clerk. 
 
 Note 173. — In Porter v. Luther (3 John. Rep. 431), the defendant justified the taking of 
 property as deputy sheriff under an execution, and, on the trial, offered to prove himself a 
 general deputy of the sheriff by reputation ; the justice rejected the evidence, requiring 
 him to produce his appointment ; and, upon certiorari brought, the Supreme Coiirt reversed 
 the judgment on the authority of Berryman v. Wise (4 T. R. 366), cited in the text. Ante, 
 note p. 569. 
 
 The same principle has been applied to the case of magistrates by the Supreme Court of 
 the United States. Turner v. Fendall, 1 Cranch, 117. In Vernon v. East Hartford (3 
 Conn. Rep. 475), it appeared that W. had been appointed j ustice of the peace, and to prove 
 him duly qualified to act, one P. was offered to show that W., since his appointment, had 
 issued a writ and received the duty on it ; and the Court of Errors held the evidence 
 admissible as primary proof, though the writ was not produced. And where a deed was 
 produced, purporting to have been acknowledged before a person styling himself a justice 
 . of the Common Pleas, this was held sufficient, pri/ma facie, that he was such till the con- 
 trary should appear. Lessee of Willink v. Miles, 1 Peters' C. C. Rep. 429. 
 
 (Where the defendant, sued for false imprisonment, justifies on the ground that he was 
 a justice of the peace and acting in his official capacity, it becomes necessary for him to 
 show that he was not only defacto, but dejure a justice of the peace. In such a case the 
 defendant's official character is put directly in issue, and his title to the office must be 
 affirmatively established. Newman v. Tiernan, 37 Barb. 159. In Colton v. Beardsley, 38 
 Barb. 29, it was lield that such official character might be proved prima facie, by showing 
 that the individual was reputed to be and had acted notoriously as a public officer. The 
 certificate of election is evidence of that fact in actions between the officer and third per- 
 sons, though it is only prima facie evidence in a proceeding to determine the title to an 
 office as between opposing candidates. (People v. Cook, 4 Seld. 67.) Where the proceed- 
 ing or action is in the nature of a quo warranto, brought to try the title to an office, the 
 question is who received the most legal votes ; and upon this issue the certificate of 
 I the board of canvassers establishes only a prima facie case, and it is competent to go 
 behind the certificate and ascertain which of the candidates in fact received the greater 
 number of legal votes. In doing this, persons voting at the election may be called as 
 witnesses and asked for whom they voted, (or the fact may be shown by circumstances) 
 and it may be proved by their own evidence, or otherwise, that they were not qualified to 
 vote. The poll-list is admissible to show who voted, though not signed or filed. People 
 v. Pease, 27 N. Y. 45, and cases there cited.) 
 
 In assumpsit by the officers of a revenue cutter, to recover their proportion of a forfeiture, 
 incurred by a breach of the non-intercourse law, against the collector ; it was held, that 
 the officers need not produce their commissions, for proof that they acted as such was 
 sufficient. Sawyer et al. v. Steele, 3 Wash. C. C. Rep. 464. 
 
 It has been held in Connecticut that a clergyman, in the administration of marriage, is 
 a public officer ; and his acts, as such, in the celebration of marriage, are admitted as 
 prima facie proof of his qualification, without higher evidence. Goshen v. Stonington, 4 
 Conn. Rep. 209. 
 
 Proof that an individual had executed and returned a writ directed to him as coroner, 
 has been held sufficient evidence of his being commissioned as such, without proof of his 
 commission. Young v. The Commonwealth, 6 Binn. Rep. 88. 
 
 The collector and trustees of a school district may be proved such by their acts and 
 reputation. M'Coy v. Curtice, 9 Wend. 17. And persons acting publicly as officers of a 
 
CH. IX.J Acting in Office. 491 
 
 part of a plaintiff of his being vestry clerk ; §nd the rule was said to extend 
 to all public officers. 0) ' « y 
 
 The rule obtains, tTiough the action be brought by a public, officer, as for 
 a libel; (2) or in a criminal prosecution for an injury to him, as for the mur- 
 der of a constable in the execution of his duty ;(3) or even in a criminal 
 prosecution against a public officer for misconduct in his office-— as, upon 
 an indictment against a person employed by the post-office, for stealing or 
 embezzling a letter. (4) ' 
 
 The rule does not, howeTjer, apply with regard tp persons acting under a 
 private authority, such as a tithe collector,(5) or assignees of a bankrupt,(6) 
 or the like. In such cases the appointment must be strictly proved. (Y) / 
 
 Inquiry as to gemeral mode of dealing, <&c. 8. Inquiry has been allowed 
 in some cases, as to a general mode of dealing, or as to the general result of 
 
 corporation are presumed rightfully in office. See United States Bank v. Dandridge, 13 
 Wheat, 70 ; also All Saints Church v. Lovett, 1 Hall's Rep. N. Y. S. C. 191. 
 
 The foregoing will suffice to show the extent to which the doctrine of the text has been 
 carried ,' and it is proper to be observed here, with regard to the effect of this species of 
 evidence, that where the rights of third persons are concerned, it is, in general, enough 
 for them to show that the officer through whom or by whose acts they claim, is ^jich de 
 faetpi'im not being so de jure ^sXbq, is not an objection that can be made available to 
 defeat, or in any way affect, their interests. Doty v. Gorham et al., 5 Pick. Rep. 487; 
 Nason V. Dillingham, 5 Mass. Rep. 170; Fowler v. Beebe et al., 9 Id. 331; Gilbreth v. 
 Brown et*!., 15 Id. 180 ; The People v. Collins, 7 John, Rep. 549 ; M'lnstryv. Tanner, 9 
 Id. 125 ; Reed v, Gillett, 12 Id. 296 ; Wilcox v. Smith, 5 Wend. 331. 
 
 As to what evidence Shall be sufBcient to make out that a person is an officer da facto, 
 and thus preclude an inquiry into the validity of his appointment or election, no precise 
 rule of a general nature can be drawn from the authorities ; for each case must necessarily 
 depend, in some degree, upon its own peculiar circumstances. In Wilcox v. Smith, (5 
 Wend. 331, 234), Sutherland, J., delivering the opinion of the court, says: "The mere 
 claim to be a public officer, and the performance of a single, or even a number of acts, in 
 that character, would not perhaps constitute an individual an officer de facto. There must 
 be some color of an election or appointment, or an acquiescence on the part of the ptiblic 
 for a length ^f time which would afford a strong presumption of at least a colorable 
 election or appointment." Supra, Colton v. Beardsley. 
 
 But where.the person assuming to be an officer in himself a party to the suit, and the 
 only Individual to be injuriously affected by any inquiry into the validity of his official 
 title, proof of acts, &c., is, in his favor, mere prima facie evidence of his being such. Fow- 
 ler V. Beebe, 9 Mass. Rep. 231 ; Commonwealth v. Fowler, 10 Id. 390. As against him, 
 his having acted in a public office will estop him from denying that he is such officer. 
 Hughes V. James, 3 J, J. Marsh. 700. 
 
 So, also, where the ofiicer is not a party, but his act is made the fotindation of an 
 affirmative criminal proceeding, instead of being used as a defense or protection, it may 
 well be that his strict legal title to his office may be inquired into under such circum- 
 stances. Wilcox V. Smith, 5 Wend. 281, 235, per Sutherland, J., remarking upon Rex v. 
 Verelst, cited in the text ; and he refers to 1 Hawk, P, C, c, 69, § 4. 
 
 (1) M'Gahey v. Alston, 3 M. & W. 211. See R, v. Jones, 3 Camp. 131, as to lords of the 
 treasury; Marshall v. Lamb, 5 Q. B. 115, as to masters in chancery ; Butler v. Ford, t C. 
 & M, 663, as to commissioners under a local public act ; Pritchard v. Walker, 3 C. & P. 
 313, as to trustees under a turnpike act ; R. v. Murphy, 8 C. & P, 310, as to commissioners 
 to raise church rates under a local act ; Doe d. Bowley v. Barnes, 8 Q. B. 1037, as to 
 churchwardens and overseers, even in an action of ejeftment brought by them for parish 
 property. And see Ganvill v. Utting, 9 Jur, 1081, Excli,, as to parish officers generally. 
 
 (3) By Parke, B,, in M'Gahey v. Alston, 3 M. & W. 211 ; by Tindal, C. J., in Connell v. 
 Curtis, 3 N. C. 328, 234. 
 
 (3) R. V, Gordon, 1 Lea. C, C. 515. * 
 
 (4) Clay's Case, 2 East P. C. 580 ; R. v. Rees, 6 C. & P. 606 ; R. v. Borrett, Id. 124 ; R, v. 
 Townsend, Car. & M. 178 ; R. v. Goodwin, 1 Lew. C. C. 100, But see R, v. Trenwyth, Ir. 
 Cir. R. 173.. As to the cases where the acting in a particular capacity is proof against a 
 party by way of admission, see supra. Chap, 7, Sect. 10. 
 
 (5) Short V. Lee, 3 J. & W. 468. 
 
 (6) Pasmore v. Bousfield, 1 Stark. R. 296. 
 
 (7) The re-appointment of a town clerk by a corporation, under 5 & 6 Wm. IV, c. 76, 
 being required to be under seal, an .entry of such re-appointment in the minutes of the 
 town council is not primary evidence thereof. R. v. Stamford (Mayor, &c.), 6 Q. B. 433. 
 As to army and navy surgeons, see Steavenson v. Oliver, 8 M. & W. 234 ; Milbanke v' 
 Grant, 3 Q. B. 690. 
 
492 Of the Rule requiring the Best Eoidence. [ch. ix. 
 
 an examination of accounts, and other such matters, where the evidence 
 is the result of voluminous facts, or of the inspection of many books or 
 papers, the examination of which could not conveniently tak# place 
 *595 in court. Thus a witness may be asked *as to a practice of accepting 
 bills drawn in a particular manner, without producing the bills. (1) 
 In this case, Lord Ellenborough, C. J., observed, that parol evidence might 
 be received of one unvaried mode of dealing betwieen parties by means of 
 exchange ; but that if the mode of dealing varied, the bills must be prci- 
 duced. And this rule, it seems, applies only to cases where bills or notes 
 are negotiated by parties in their ordinary course of business ; thus, where 
 A. and B. were in partnership, but not in a commercial business, and it was 
 necessary to show that A. had an authority to indorse negotiable securities 
 in the name of the firm, it was held, that parol evidence could not be given 
 of other securities, indorsed in a similar manner, and paid by the firm, as 
 showing a course of dealing; but that such securities must be produced or 
 accounted for. (2) A witness may give evidence of a general balance of 
 accounts. (3) Where the question is as to the solvency of a party at a par- 
 ticular time, a witness may speak to the general result of his inquiries, as 
 derived by the accounts rendered by a bankrupt of his affairs. (4) 
 
 But a witness who states that he had at one time received a number of 
 letters from one of the parties in the cause, containing statements as to a 
 particular fact, but which letters he had since destroyed, cannoVbe exam- 
 ined as to the general contents of such letters for the purpose of ascertain- 
 ing the impression thereby produced in his mind with reference to such 
 fact. (5) 
 
 A witness may be interrogated as to his examination of old records, and 
 may state that they correspond in substance with a particular record which 
 has been read, without going through the whole in detail, subject, however, 
 to a full cross-examination. (6) 
 
 Where original evidence not attainable. 4. Where the production of 
 evidence indicates the existence of other evidence of a more original 
 character, still if it can be shown that the better evidence is not attainable, 
 the principle of the rule will not apply. Inscriptions on walls and fixed 
 
 tablets do not admit of being proved, Otherwise than by secondary 
 *596 evidence. (7) But where a notice is merely *hung up in an office, not 
 
 fastened to the wall, it must be produced like any other accessible 
 document. (8) 
 
 Notices. 5. Notices of the dishonor of bills, notices to quit, and attor- 
 neys' bills of charges delivered under the statute, may he proved by dupli- 
 cate originals, or by examined copies, without giving notice to produce, or 
 showing the loss of the original evidence. (9) 
 
 Mcamination on the voir dire. 6. It has been already noticed, that the 
 rule is not in general enforced upon examinations on the voir dire, owing to 
 the peculiar circumstances under which those examinations take place. (10) 
 
 (1) Spencer v. Billing, 3 Camp. 310. 
 
 (2) Levy v. Pyne, Car. & M. 453. 
 
 (3) Roberts v. Doxen, Peake, 83. In Furness v. Cope (5 Bing. 114), a bankrupt's ledger 
 was received, to prove that a person had no funds in the bank, without calling the clerks 
 who made tlie entries. 
 
 (4) Meyer v. Sefton, 3 Stark. R. 274. 
 
 (5) Topham v. M'Gregor, 1 C, & K. 320. 
 
 (6) Rowe V. Brenton, 3 M. & K. 312. 
 
 (7) R. V. Fursey, 6 C. & P. 81 ; Doe d. Coyle v. Cole, Id. 880 ; Bartholomew v. Stephens, 
 8 C. & P. 738 ; Mortimer v. M'Callan, 6 M. & W. 53, where Lord Abinger, C. B., mentioned 
 the case of a man who had been convicted of a libel written on the wall of a jail. 
 
 (8) Jones v. Tarleton, 9 M. & W. 675. 
 
 h) gee Vol. II, Chap. 6, Of Private Wntings. 
 
 (10) Swpra, Chap. 5, Sect. 7, Of Vie Mode of Objecting to Competency. 
 
CH. IX.] Substance of Documents. 493 
 
 Where Documents Lost, &c. With respect to the proof of documents, 
 it is, in general, permitted to give secondary evidence of them, where they 
 are destroyed or lost, or where they are in the possession of an adversary 
 who refuses to produce them, or are not available in consequence of some 
 reason of public policy, or of consideration for the interests of witnesses. 
 This subject involves several subordinate questions of great practical im- 
 portance, as, for example, the necessary search after documents, and the due 
 notice to produce them; which will be more particularly considered in 
 treating of written evidence. (1) 
 
 In some cases, however, the mere loss of a document will not be sufficient 
 to enable a party to give secondary evidence of its contents ; as, in the 
 instance of a negotiable security, such as a bill of exchange or promissory 
 note, payable to bearer, or indorsed in blank. In such a case, if the holder 
 pf the bill or note has lost it, he cannot recover against the acceptor, or 
 maker ; for the instrument may be in the hands of an innocent and bona 
 fide holder, who would have the right of action against the defendant. (2) 
 If, indeed, the instrument was not in a negotiable state at the time of the 
 loss, its production wUl not be necessary, and secondary evidence of its con- 
 tents maybe given. (3) So, if it is proved that the instrument is 
 *597 *destroyed, secondary evidence of its contents is admissible (4) ; 
 though this appears formerly to have been doubted. (5) 
 
 With respect to the cases where the more original evidence is to be sup- 
 plied by the testimony of an individual, questions frequently occur in regard 
 to the absence of attesting witnesses, or of persons who have made deposi- 
 tions. Where there is not suiRcient proof that the parties are dead, some 
 difficulty often arises as to whether any, and what, causes' of absence shall 
 be sufficient to allow of the 'admission of secondary evidence. The search 
 after absent witnesses is another point of considerable practical importance. 
 These matters will be more particularly considered in treating of written 
 evidence, in which part of the work it will also be more convenient to 
 examine the cases where the proof of documents by attesting witnesses may 
 be dispensed with, from various other causes besides the inability to procure 
 their attendance. It may be proper, however, to observe in this place, that 
 where it is proposed to discredit a witness — in which case it is proper to 
 give him an. opportunity of explaining his own acts and declarations previ- 
 ously to the proving of them by other witnesses (such inquiry not being 
 irrelevant to the issue), it will be necessary tp examine the witness as to 
 these matters in the first instance, notwithstanding his answers would tend 
 to criminate himself (6) 
 
 Where original evidence is not available, many questions have arisen as 
 . ; 
 
 (1) Post, Vol. II. Proof of lost Instruments. 10 Bosw. 468. 
 
 (3) Davis V. Dodd, 4 Taunt. 603 ; Champion v. Terry, 3 B. A B. 395 ; Hansard v. Robinson, 
 7 B. & C. 90 ; Kersou v. Hutchinson, 3 Camp. 211 ; S. C, 6 Esp. 126 ; Mayor v. Johnson, 
 son, 3 Camp. 324 ; Bevan v. Hill, 2 Id. 381 ; Woodford v. Whiteley, M. & M. 517. Under 
 such circumstances the payee should offer an indemnity to the acceptor or maker, and 
 apply for a new bill or note ; and if this is refused, he must apply for relief to a court of 
 equity, under the 9 & 10 Wm. Ill, c. 17, § 3. and 3 & 4 Anne, c. 9. See Rolt v. Watson, 4 
 Bing. 374. As to the course of proceeding in equity, see Warmsley t. Child, 1 Ves. sen. 
 341 ; Toulmin v. Price, 5 Ves. 238 ; Ex parte Qreenway, 6 Ves. 812 ; Macartney v. Gra- 
 ham, 2 Sim. 285. 
 
 (3) Wain v. Bailey, 10 A. & E. 616 ; Long v. Bailie, 3 Camp. 214. 
 
 (4) Blackie v, Pidding, 6 C. B. 196. And see Piersou v. Hutchinson, and Woodford v. 
 Wliiteley, «< supra. 
 
 (5) See Hansard v. Robinson, ut supra. 
 
 (In this country, it is not in general necessary for the owner of a lost negotiable instru- 
 ment to file a bill in equity ; he may have a recovery on it in a court of law, on giving an 
 adequate indemnity against any future claim to be founded on the bill or note. Edwards 
 on Bills and Notes, 395, 310.) 
 
 (6) The Queen's Case, 3 B. & B. 313. See Edmonstone v. Webb, 3 Esp. 264. See Vol. 
 n, Chap. 9, Of the Bxamination of WUneisea. 
 
494 Of J^resumptive JEkidence, [ch. x. 
 
 to what shall be deemed sufficient secondary evidence. These questions 
 usually occur in the proof of documents, and will, therefore, he more con- 
 veniently treated of in the second part of this work. And to the same part 
 belong the questions, whether particular documents are the best, or second- 
 ary evidence. 
 
 *698 ^CHAPTER X. 
 
 OF PEESUMPTIVE EVIDENCE, AND OF PEEBUMPTIONS. 
 
 In the preceding chapters we have considered the various general rules 
 which have been adopted in our courts of law relative to the exclusion of 
 evidence. In the present chapter it is proposed to treat of the nature or 
 quality of evidence ; more especially with regard to presumptive or circum- 
 stantial proof, as contradistinguished from direct proof. 
 
 IVesumpfive epidence defined. Where the facts proved are not the pre- 
 cise facts in issue, and the jury are to come to a conclusion upon the facts 
 in issue, by an act of reasoning from those other proved facts, the evi- 
 dence in such case is said to be presumptive. (1) 
 
 (1) Note 174. — The rules of presumptive evidence apply lo corporations as well as 
 individuals. Persons acting publicly as officers of the c6rporation, are presumed right- 
 fully in office ; the previous necessary steps are presumed, in order to make a corporate 
 act legally operative ; grants and proceedings beneficial tp the corporation are presumed 
 to have been accepted by it, especially when the presumption is fortified even by slight 
 acts indicating an intention to accept ; a general agent of the corporation may prove his 
 authority by corporate acts contemplating or recognizing it ; a charter may be presumed 
 from the long exercise of corporate rights ; or the acceptance of a new charter, from the 
 acts of the corporate officers ; or a demise from year to year to or from the corporation. 
 So of the extent of their possession, drawn in question by an ejectment. So a surrender 
 of their corporate rights, or a contract or promise by the corporation, or a regular vote of 
 the corporate body. These general positions are advanced and illustrated from various 
 reported cases, English and American, by the Supreme Court of the United States in 
 United States Bank v. Dandridge (13 Wheat., 70 to 76). 
 
 (It need not be alleged in an action against a corporation as the indorser of a promissory 
 note, that they indorsed the note m t/ie course of their legiMntate btisiness; for having 
 power to do the act, it will be presumed to have been done lawfully, until the contrary be 
 proved. Mechanics' Bank Asso. v. Spring Valley, S. & L. Co. 25 Barb. 419 ; 19 N. Y. Rep. 
 313. It will be presumed that the president of a bank suing aa such, acts with authority. 
 Mumford v. Hawkins, 5 Denio, 355 ; 9 Paige, 500 ; 29 Barb. 297. That the assignment of 
 a certificate of sale on execution by the cashier, under seal of the bank, to a redeeming 
 creditor, is done with authority. Bank of Vergennes v. Warren, 7 Hill, 91. That the 
 indorsement of a draft payable to the cashier, on obtaining a discount thereof for the bank, 
 is the act of the bank. Bank of Genesee v. Patchin Bank, 19 N. Y. 312. That con- 
 veyances to a corporation having power to take the same, were legally made. Farmers' 
 Loan & Trust Co. v. Curtis, 8 Held. 466 ; Chautauqua Co. Bank v. Risley, 19 N. Y. 369. 
 That a corporation having power to execute a negotiable security for any purpose, will be 
 presumed to have acted legally in giving such paper. Safford v. Wyckoff, 4 Hill, 443 ; 19 
 N. Y. 383. Or in taking such paper. 12 N. Y. 569. That property acquired and sold by a 
 manufacturing corporation was obtained in the legitimate exercise of its corporate 
 powers. De (Sraff v. Amer. Liaen Thread Co., 21 N. Y. 134. That a note held by an insur- 
 ance company transferred by indorsement in this form, L. G., president, its commercial 
 paper being customarily indorsed in that manner, was so indorsed by authority. Elwell 
 V. Dodge, 33 Barb. 836. In actions by corporations, a general denial does not, under the 
 stattites of New York; piit in issue the jilaintiiF's corporate character; if the complaint 
 desfcribe the plaintiff as a banking association and corporation organized, &c., the plaintiff 
 need not, under a general denial, prove its corporate existence. Bank of Genesee v. 
 Patchin Bank, 13 N. Y. 309. Where plaintiff's corporate character is put in issue, the 
 corporation is sufficiently proved against one who has recognised the corporate character 
 by contracting with it, by showing the existence of a law authorizing its formation, pro- 
 ceedings taken for that purpose in professed compliance with the law, and acts of 
 subsequent user ; so held in an action to recover a subscription towards building plain- 
 tiff's church. Methodist Episcopal Union Church v. Pickett, 19 N. Y. 483. As against 
 
CH. X.] And of JPresumptions, . 495 
 
 A presumption of fact is, properly, an inference of that fact from other 
 *599 facts that are known ; it is an act of reasoning. (1) In drawing an ♦infer- 
 ence from facts proved, regard must always be had to the facility that 
 appears to be afforded for explanation or contradiction. No person is to be 
 required to explain or contradict, until enough has been proved to warrant 
 a reasonable conclusion against him in the absence of explanation or con- 
 tradiction ; but when such sufficient proof has been given, and the nature 
 of the case is such as to admit of explanation of contradiction, human 
 reason cannot do otherwise than adopt the conclusion to which the proof 
 tends, if no explanation or contradiction is offered. (2) 
 
 A presumption, then, is a probable inference, which our common sensQ 
 draws from circumstances usually occurring in such cases. (3) The slight- 
 
 a Btocktiolder sued to enforce his individual liability, proof of filing a certificate of incor- 
 poration in due form under tlie statute, and that defendant participated in acts of user 
 under the corporation, is sufficient. Eaton v. Aspinwall, 19 N. Y. 119. The party dealing 
 with such a body as a corporation has no right to object to any irregularity in its organi- 
 zation. Trustees of Vernon Society v. Hills, 6 Cow. 23 ; U. S. Bank v. Stearns, 15 Wend. 
 314. In some cases the defendant's recognition of plaintifis as a legal body corporate, 
 becomes one of fact. Wayne & Ontario, Col. Inst. v. Devinney, 43 Barb. 380. The sub- 
 6cril)er to the stock of a railroad corporation cannot show that the length of the road 
 differs from that stated in the articles. Buffalo & Pittsburgh E. R. Co. v. Hatch. 20 N. T. 
 157. Recognition and user of corporate franchises under color of an act authorising the 
 incorporation, is sufficient evidence of a corporation de facto. Bank of Toledo v. Interna- 
 tional Bank, 21 N. Y. 542.) 
 
 (1) Note 175. — " A necessary and invariable connection of facts is not required ; it is 
 enough if one fact is ordinarily and usually connected with another." Per Parke; J., in 
 Doe ex dem. Patteshall v. Turford, 3 Barnw. & Adolph. 890. "That the fact to be 
 inferred often accompanies the fact proven, is not snfficient ; it should most usually , 
 accompany it ; and I would say, in the absence of all circumstances, that it should ra/rely 
 otherwise happen." Per Henderson, J., delivering the opinion of the court in Hart v. 
 Newland, 3 Hawks, 123, 123. " The circumstances should be strong in themselves, should 
 each of them tend to throw light upon and to prove each other ; and the result of the 
 whole should be to leave no doubt upon the mind that the offense has been committed, 
 and that the accused and no other could be the person who committed it." Per Wash- 
 ington, J., United States v. Johns, 1 Wash. C. C. Kep. 372. In the last case (p. 372 to 374), 
 the learned judge examines a train of circumstances, pro and con, upon the question of 
 intent to destroy the prisoner's vessel and cargo to defraud the underwriters. It is more 
 usually put to the jury that the circumstances should overcome r easoTwble AoTibt, as being 
 consistent with guilt only, and inconsistent with innocence. Atwood's Case, before Col- 
 den Mayor, N, Y. Gen. Sess., June, 1819, 4 C. H. Rec. 91. And see Plunket's Case, before 
 the same, N. Y. Gen. Sess., Sept. 1818, 3 C. H. Rec. 137, 138. See the charge in the Peo- 
 ple V. Gardner, 1 Wheel. Cr. Cas. 25, and Rowley's Case, 1 C. H. Rec. 47, 49. 
 
 In deceit for the sale of a consumptive negro, the defense was that the plaintiffs wife 
 knew of the disease, whence it was sought to infer that the plaintiff had knowledge of it 
 also. But this evidence was denied by the court, who accompanied the denial with the 
 remarks of Henderson, J., in Hart v. Newlaud, ut supra. See note 177. 
 
 (2) By Abbott, C. J., in R. v. Burdett. 4 B. & Ad. 162. 
 
 Note 176. — StaJntur presumptioni donee probetur in eontrarium. 2 Ev, Poth. 329, No. 
 16, § 14 ; Helm's Lessee v. Howard, 2 Har. & M'Henry, 77 ; Miller v. The Resolution, 2 
 Dall. 23, 23 ; Livingston's Ex'rs v. Livingston, 4 John. Ch. Rep. 287, 393. 
 
 So that there are some assertions which should always be holden true till the contrary 
 be proved, and others that are always holden contrary to truth, until they are proved. 1 
 Dom. b. 3 tit. g 4, art. 7. For illustration of this, see the following note. 
 
 (3) Note 177. — See note 175. 'The ground of all presumptions is the necessary or 
 usual connection between facts and circumstances ; the knowledge of which connection 
 results from experience and reflection. A presumption is, therefore, " an inference as to 
 the existence of a fact not actually known, arising from its necessary or usual connection 
 with others which are known. It is upon this principle that all our knowledge of those 
 relations and existences, which are not perceptible to the human senses, must depend." 
 The force of presumptions is almost intuitively perceived by mankind ; and that principle 
 of the mind which prepares it to expect the future association of circumstances, because 
 it has been accustomed to find them associated, cannot be accounted for, except by setting 
 it down as imposed upon us by the law of nature. It is the same principle which leads 
 us to reason upon cause and effect in all the regions of inductive philosophy ; of which 
 the doctrines of presumptive evidence rank as an important branch. The triors are to be 
 satisfied that one circumstance has always, or at least usually been found in consecutive 
 
496 Of Presumptive Evidence, [ch. x. 
 
 connection with another, the like conduct with the like motive, the fact to be presumed 
 with the fact established by direct proof. See 1 Stark. Ev. 33 to 39, 37 to 39, and 3 Id. 
 493, 494, 1 Dom. b. 3 tit. 6, § 4, art. 3. Poa, of the text, and note 180. 
 
 It was proposed to infer that a surveyor had laid off the land in question twice by 
 actual mmey, because two paper surveys were made by him. The Court of Appeals of 
 Kentucky, by Robertson, f., assumed the fact as common, the large surveys were often 
 made by surveyors on the ground, and subdivided upon paper in their offices. And they 
 denied the result contended for, as being a violation of the principles of circumstantial 
 and presumptive evidence, "which respect the order and laws of moral and physical 
 nature in regard to cause and effect." Wallace v. Maxwell, 1 J. J. Marsh, 447, 451, 453. 
 See also Newland v. White, stated ante, note 175. 
 
 On the other hand, among the various cases where presumptions have been allowed, 
 which are hereafter noticed both in the text and notes of these volumes, the greater 
 variety of illustration will be found in prosecutions for a divorce or for damages, on the 
 ground of criminal conversation ; cases where both the offending parties always 
 *600 seek concealment ; and are usually *successful in placing themselves beyond the 
 reach of direct testimony; and where you are thrq\vn, as the only resource, upon 
 such circumstances " as would lead the guarded discretion of a reasonable and just man 
 to the conclusion." Accordingly, cohabiting together for months or years (Loveden v. 
 Loveden, 2 Hagg. Consist. Rep. 1 ; Cadogan v. Cadogan, Id. 4, n.) ; or the man living at a 
 neighboring inn, and frequently resorting to the woman's house, who lives separately from 
 her husband, the man's clothes being at the woman's house ; he taking his meals there ; 
 his horse being there, though he be absent for a few hours of the night (Cadogan v. Cado- 
 gan, supra) ; sleeping in the house, though apparently in a separate room ; the man being 
 admitted to her bed-chamber under the plea of illness (Rutton v. Rutton, cited in Cadogan 
 y Cadogan, supra) ; are among the strong circumstances upon which courts and juries 
 proceed. In another case (Loveden v. Loveden. 3 Hagg. Const. Rep. 1 to 53), the offender 
 was long received on a footing of hospitality at the husband's house ; and a fondness was 
 observed between the former and the wife, being indicated by their early return from 
 hunting parties, and their solitary rambles, arm in arm, through the garden and planta- 
 tions. Finally suspicion was excited by their indelicate familiarities ; walking in the 
 garden with arms around each other's waist, and once kissing each other ; often retiring 
 to separate rooms without the husband's observation ; the wife's particular attention to 
 the offender's accommodation when he came to the house ; the preparation and ornaments 
 of his room ; her assisting to make the fire there ; addressing him particularly at dinner 
 and meals ; his visits being usually when the husljand was absent ; and, while there, she 
 ordering all others to be denied to her ; and on the husband's return, they separating, and 
 appearing to have met for the first time ; their meeting upon signals to ride together in 
 the park ; he laying his hand on her hip, and on being observed, withdrawing it in con- 
 fusion ; laying his hand familiarly on her shoulder ; her admitting him into her dressing- 
 room, where other gentlemen were scarcely ever admitted ; and on a friend remonstrating 
 with her she taking it ill, and refusing to alter her behavior; and their still seeking 
 opportunities, and apparently meeting upon assignation. On this evidence. Sir William 
 Scott observes, " When an improper attachment is admitted to have existed between the 
 parties ; when it is admitted that indelicate acts have passed between the parties when 
 they were within the reach of observation, shall it not be concluded that those acts were 
 carried much farther when they were out of reach of observation V The case was then 
 followed by proof of written correspondence between the wife and the alleged adulterer, 
 which the judge said would be a circumstance, though its nature might be unknown, but 
 especially where he saw that it avowed an amatory attachment. After this, while the 
 husband was absent, the paramour visits his house, and is alone with his wife three-quar- 
 ters of an hour. He again comes, when she hurries to meet him, shakes him by the 
 hand, presses him into the green dining-room, after which they are seen in one of their 
 solitary rambles. She was much in the habit of going aljout with her open carriage in the 
 streets ; but having on one occasion taken up her paramour, she rode with it close, though 
 on a very warm day ; and on another day, after a meeting in the green-house, he was seen 
 skulking away in disguise, on the return of the husband's c^riage. Other instances are 
 then given of their occasionally being together in the rooms of the house ; and the par- 
 ticular care she took of her dress when her paramour was expected, the perfuming of 
 the rooms, oiling the doors to preserve silence, &c., &c. More direct disclosures were 
 finally made ; but it is evident the case would have been sustained much short of that. 
 Indeed, the opinion of the judge, ranging through fifty pages in the original report, pre- 
 sents a numerous and diversified group of circumstances, and the manner of using and 
 adapting thom to the ends of justice ; and the whole will bo found an able commentary 
 on the general principles of circumstantial evidence. In Cadogan v. Cadogan (supra), the 
 judge remarks, that finding persons in such a situation as generally leads to a presumption 
 of guilt, courts must presume it in all cases attended with the like circumstances. They 
 cannot adopt the extravagant professions of platonism for the principles of their 
 decisions. It is physically possible that persons may be in the same bed together without 
 criminal intercourse. Courts of justice, howeyer, cannot proceed on such ground. 
 
CH. X.] Afid of Prestimptions. 497 
 
 The latter circumstance alone was held sufficient to warrant a jury in finding the 
 defendant guilty. State v. Green, Kirb. 87. 
 
 It may be useful to follow out the general principles with which we started this note, 
 by some of their subdivisions and cases, though we must stand principally indebted for 
 
 them to other heads of these volumes. 
 *601 *1. The law presumes that a man intended the result which naturally followed 
 the means voluntarily used by him. On this principle, a libel injurious in its ten- 
 dency was declared actionable per se. Haire v. Wilson, 9 Barnw. & Ores. 643 ; Rex v. 
 Shipley, 4 Doug. 177, per Wiles, J., S. P. And several persons having caused a plate to 
 be struck calculated for the alteration of bank bills from a lower to a higher denomina- 
 tion, were held to intend the usual consequence, and were convicted of a conspiracy to 
 defraud, though not a bill was altered. Mylone's Case, before Radcliff, Mayor, N. Y. Gen. 
 Sess. Jan. 1817, 3 C. H. Rec. 33. And see The People v. Bradford, 1 Wheel. Cr. Cas. 
 219, 221. (The rule applies in civil cases, for injury to a mortgage security ; Van Pelt v. 
 McGraw, 4 Comst. 110; in an action for libel ; Fry v. Bennett, 5 Sand. 54 ; in an action for 
 malicious prosecution ; Bulkley v. Smith, 3 Duer, 361 ; and in criminal cases, aa in arson ; 
 People V. Orcutt, 1 Park. Cr. 353 ; or sale of meat known to be diseased ; Goodrich v. 
 People, 19 N. Y. 574. As to how far the rule is modified in the case of homicide by a 
 drunken man, see People v. Rogers, 18 N Y. 9. In libel, proof of express malice and 
 other acts going to show a malicious intent on the part of the defendant in the publica- 
 tion is admissible on the question of damages. Pry v. Bennett, 28 N. Y. 324.) 
 
 3. The seeking of opportunities and means to commit a criminal act ; the flight of the 
 accused ; concealing or showing anxiety to conceal, evidence of guilt ; are circumstances 
 for the prosecution. The fabrication of false or contradictory accounts is a familiar 
 instance ; as of the prisoner's residence, or occupation, or acquaintances. Coe's Case, 
 before Kadcliff, Mayor, N. Y. Gen. Sess. Sept. 1816 ; 1 C. H. Rec. 141, 148 So making 
 arrangements to escape. Id. Using or signing a feigned name. Id. So concealing 
 instruments of violence or counterfeit money. See 1 Stark. Ev. 39 to 33, and 3 Ev. Poth. 
 387, No. 16, § 14. Fraudulently passing, or possessing with intent to pass, counterfeit 
 bills, is a crime where guilty knowledge and intent must generally be derived from cir- 
 cumstances. Among these are entries of the purchase of counterfeit bills in cabalistic 
 language used among counterfeiters ; coincidence between false bills found in tlje prison- 
 er's pocket-book and those found in the recesses of his house or residence ; that the 
 prisoner had failed to show a good character ; the possession of large quantities of spuri- 
 ous notes (The People v. Gardiner, Sept. 1822, N. Y. Gen. Sess., before Riker, Recorder, 1 
 Wheel. Cr. Cas. 33, 35) ; paying away the bill without calling for change due on the pur- 
 chase (Rhodes' Case, before Radcliff. Mayor, N. Y. Gen. Sess. Jan. 1816, 1 Cit. H. Rec. 1, 
 2) ; passing a comparatively large bill for a small quantity of liquor'not drank, and imme- 
 diately leaving the store ; a short time after returning with a similar bill, attempting the 
 same practice ; and on being charged, fleeing into the woods, and not accounting for the 
 possession of the bills. Helm's Case, before Riker, Rec, N. Y. Gen. Sess. March, 1816, 1 
 C. H. Rec. 46, 47. So an attempt to conceal or destroy a counterfeit bill, the prisoner 
 refusing to give an account of himself or to tell his name, a large amount of counterfeits 
 being found in his portmanteau (Galbrant's Case, before Radcliff, Mayor, N. Y. Gen. Sess. 
 July, 1816, 1 C. H. Rec. 109, 110); denying that he passed the forged check, and refusing 
 to disclose from whom he obtained it ; held sufficient to convict, no satisfactory account 
 being given. Vosburgh's Case, before Radcliff, Mayor, Aug. 1816, N. Y. Gen. Sess. 1 C. 
 H. Rec. 130. So two persons being engaged in passing the bill, and contradicting each 
 other and giving unsatisfactory accounts on their separate examination. Reynolds' Case, 
 before Radcliff, Mayor, N. Y. Gen. Sess. March, 1817, 2 C. H. Rec. 47. Concealment or 
 attempt to conceal false money (called a strong circumstance in Stewart's Case, before 
 Radcliff, Mayor, N. Y. Gen. Sess. June, 1817, 2 C. H. Rec. 87). In this case one bill was 
 found in the cuff of the prisoner's coat, and, on search at his boarding room, another was 
 found in his pantaloons pocket. So, pretending that the bill was received from S., in the 
 market, without farther account, averring that the note was good, catching up the change 
 in a hurried and confused manner, without counting it ; offering a sum of money to the 
 officer to release him ; and on this being declined, attempting to escape by knocking the 
 officer down, and giving a confused and unsatisfactory account of the transaction. The 
 People V. Quackenboss, before Riker, Recorder, N. Y. Gen. Sess. Dec. 1833, 1 Wheel. Cr. 
 Cas. 91, 93. 
 
 On a charge of receiving stolen goods with knowledge ; finding them secreted in the 
 prisoner's store, in a place convenient for concealment ; considerable stolen property being 
 found up stairs ; the prisoner, on being questioned, giving no satisfactory account of 
 them ; a great quantity of stolen goods being found in his house ; with bad character 
 of the accused ; were allowed as proof of knowledge. People v. Teal, before Riker, 
 Recorder, N. Y. Gen. Sess., March, 1833, 1 Wheeler's Cr. Cas. 199, 301. So, buying the 
 goods at a reduced price, they being of a large amount, receiving them of a stranger ; 
 throwing them into a trunk in a confused and crowded manner ; the trunk being found 
 in a room up stairs in the prisoner's house, though he kept a store. People v. Cochrane, 
 before Riker, Recorder, N. Y. Gen. Sess., Nov. 1833, 1 Wheel. Cr. Cas. 81, 84. 
 
 Vol, L 63 
 
498 Of Presumptive Evidence, [ch. x. 
 
 The falsity of pretences on which goods are obtained, may also be inferred from circum- 
 stances. Lazarus' Case, before Radcliff, Mayor, N. Y. Gen. Sess.. June, 1816, 1 C. H. Bee. 89. 
 On the other hand, in oases of counterfeit bills, circumstances considered favorable 
 *603 to the *prisoner are, his receiving the counterfeit bills as good in the regular conrse 
 of business (People v. Bryan, before Riker, Recorder, N. Y. Gen. Sess., Sept. 1823,- 
 1 Wheel. Cr. Cas. 21. 23) ; passing the note to an acquaintance, and giving a true state, 
 ment of the prisoner's business. So, having been in the state prison before, he might 
 have offered money to procure his escape, though innocent, he knowing the impression 
 to be against him. So, no other spurious bill being found upon him ; and since he was 
 discharged from the state prison, so conducting as to be thought trustworthy by his 
 employers. The People v. Quackenboss, supra. 
 
 In charges for knowingly receiving stolen goods, the following circumstances have been 
 recognized as favorable to the prisoner: Going out to sell the goods in the daytime, 
 stating that he had other goods of the like kind ; and offering to be present at an auction 
 Bale of them ; leaving the original marks on most of the goods ; and after being arrested, 
 aiding in the arrest of the thief, who refuses to answer on examination. People v. Coch- 
 rane supra. So, part of the goods being found in the prisoner's store, open to the view 
 of those who called in ; the original letters on a stolen dressing box being allowed to 
 remain, by which the owner could identify it ; with good character as to honesty. People 
 V. Teal, supra. 
 
 Again : Omnia presumuntur contra spoUatorem ; as if a devisee in the first will destroy 
 a second, it is ground for presuming that the latter contained a revocation of his devise 
 in the first. Admitted in Harwood v. Goodright, Cowp. 93. And an obligor,' obtaining 
 and destroying his bond, affords a presiimption that it was given for a valuable consider- 
 ation. Carneal's Heirs v. Day, Litt. Sel. Cas. 492, 493. So, the mere non-production of 
 written evidence, which is in the power of the party, generally operates as a strong pre- 
 sumption against him (3 Ev. Poth. 336, 337, No. 16, § 14) ; not that, even a refusal, on 
 notice to produce, shall be taken to establish the writing as claimed by the party giving 
 notice ; but every doubt as to its contents, everything equivocal in the secondary evidence 
 to which the party is driven, or imperfect, vague, or uncertain ; as in dales, sums, and 
 whatfever is material, shall be presumed against the party who might remove every doubt 
 by producing the higher evidence. Some general evidence of its material parts must be 
 given before the presumption attaches. Life & Fire Ins. Comp. v. The Mech. Fire Ins. 
 Comp. of New York, 7 Wend. 81. And it may be remarked generally, that on a trial 
 either in civil or criminal cases, the omitting to produce evidence in elucidation, which is 
 in the power of the party or within his peculiar knowledge, shall be holden to turn every 
 doubt against hiin. 1 Stark. Ev. 34. CTlie holder of a note who ■ intentionally burns it, 
 cannot maintain an action thereon. Blade v. Noland, 12 Wend. 173. And a party who 
 wrongfully takes or converts a note to his own use by negotiating it, is answerable for 
 the face of it. Decker v. Matthews, 2 Kern. 313. So if the drawee tortiously destroy a 
 draft presented for acceptance, he is -liable thereon or therefor to the same extent as if he 
 had accepted it. Jenne v. Ward, 3 Stark. 389 ; Edwards on Bills & Notes, 418.) 
 
 3. So in civil cases, the law looks for evidence to long delay or acquiescence in the 
 exercise of an adverse right ; as in the uninterrupted enjoyment of property or privileges. 
 This we shall presently see at large in the subsequent pages, as to the presumption of 
 payment, grants, agreements licenses, &c., founded upon time. 
 
 4. Tlie law looks favorably on the good character of one accused of an infamous crime, 
 where the proof against him leaves the case otherwise doubtful. 1 Stark. Ev. 35 ; People 
 V. Mead, before Riker, Recorder, N. Y, Gen. Sess. Sept. 1823, 1 Wheel. Cr. Cas. 36, 37, 38. 
 This head will also be hereafter more fully considered. 
 
 5. Presumptions may also arise from artificial habits ; as the course of trade ; the course 
 Q.f the post ; the customs of a particular trade, or of a particular class of people. In this 
 way, the time of credit, the time when a letter was received, &c., &c., may be proved, and 
 stand so till rebutted. 1 Stark. Ev. 356. And see 3 Ev. Poth. 334, No. 16, § 14. The 
 reliance on the course of the post is most conspicuous n suits to charge drawers and 
 indorsers of commercial paper, which will be considered in the second volume, and see 
 De Forest v. Hunt, 8 Conn. Rep. 179. The course and custom of trades and classes run 
 through every department of society, giving a construction to their words and conduct, 
 and charging them with notice and knowledge. It was lately held that the officers of an 
 insurance company should be presumed cognizant of the marine intelligence contained 
 in a newspaper taken at the office, especially that which related to their own port. Green 
 V. Meroh. Ins. Co. of New Bedford, 10 Pick. 403. So, that a client, resident abroad, has 
 left all material papers with his attorney, who defends his cause in England ; bat not if 
 he reside in England ; and in no case, i,f the paper be not obviously material. Vice v. 
 Anson, 3 Carr. & Payne, 19. So, that all the partners ipay have access to and know the 
 conionts of partnership books, though this may be repelled by circumstances. United 
 States Bank v. Binney, 5 Mason, 176. So, that a bank stockholder is entitled to a certifi- 
 cate of ownership, as it is the habit of nearly all banks to give this. Hussey v. The Man. 
 
 & Mech. Bank of Nantucket, 10 Pick. 415, 
 *603 *PreBumptions also arise from tlie state of society. In a slaveholding state, a per- 
 
CH. X.] And of Presumptions. 499 
 
 Bon bearing a black complexion was presumed to be a Blave ; though otherwise of a 
 yellow or mulatto. Scott v. Williams, 1 Dev. 336. While in New York, where slavery 
 yet barely lingered, and a majority of blacks were free, the same presumption was 
 denied, even from a plain African color and features. Rogers' Ex'rs v. Berry, Wash. Cire. 
 June, 1812, Oor. Yates, J., MS. ; S. C. but not S. P., 10 J»hn. Rep. 132. The wife, in the 
 husband's absence, was presumed to have been left an agent for the hiring out of his 
 horses. Church v. Landers, 10 Wend. 79, 80. A servant by the year having left her ser- 
 vice a considerable time, the presumption (in England) is that her wages were paid. 
 Sellen v. Norman, 4 Carr. & Payne, 80. A fortion when the service is in a factory, where 
 the custom is to pay weekly. Note a to Sellen v. Norman, awpra. 
 
 The latter ease comes rather to the practice of individuals, concerning which there are 
 various cases. Only some few of the modern ones will be given. A man allowing his 
 friend repeatedly to forge his name upon commercial paper, by submitting to have the 
 paper enforced, was held incapable of defending against subsequent forgeries. Weed v. 
 Carpenter, 4 Wend. 819. The habit of the retailer to charge interest after ninety days 
 was held to bind the customer, who shall be presumed to know the habit. M'Allister v. 
 Reab, 4 Wend, 483, 490 ; S. C, on error, 8 Wend. 109. So, the practice of a porter to a 
 bank as to the time of presenting checks. Merchants' 'Bank v. Spicer, 6 Wend. 443. The 
 practice of clerks in a countirig-house as to mailing letters. Toosey v. Williams, 1 Mood. 
 & Malk. 129. And the habit of an attorney's office, as to the preparation and service of 
 notices to quit. Doe ex dem. Pattesliall v. Turford, 3 Barnw. & Adolph. 890. 
 
 From the custom of parents to furnish their daughters, on marriage, with outfits, the 
 delivery of property, e. g. a slave, by a parent to a daughter, on such an occasion, without 
 explanation, will be presumed to be a gift. Smith v. Montgomery's Adm'rs, 5 Monroe, 
 502. 504; Bell ^. Strother, 3 M'Cord, 207, 210 ; Johnson v. Dilliard, 1 Bay, 232 ; Teague 
 V. ariffin, 2 Nott & M'Cord, 93; De Graffenried v. Mitchell, 3 M'Cord, 506 ; Byrd v. Ward, 
 4 M'Cord, 228. So, if some time after marriage. M'CJuney v. Lockhart, 4 M'Ord, 251. 
 
 See 1 Dom. b. 13, tit. 6, § 4, art. 7, that persons shall be presumed to act according to 
 their principles and customs. 
 
 6. So things are held to be legally and properly in their existing state, until the con- 
 trary be shown ; as if a person be in possession of property, the presumption is that he is 
 the rightful owner. Post, of the text and notes ; 2 Ev. Poth. 338, No. 16, § 14 ; 1 Dom. 
 b. 3, tit. 6, § 4, art. 1 ; per Savage, C. J., in Livingston v. The Peru Iron Co., 9 Wend. 520, 
 521 ; Bell v. The Commonwealth, 1 J. J. Marsh. 550, 553, 554 ; per Lord Ch. of Ireland, 3 
 Ridgw. P. C, 291, note; per Mills, J., in Fowke v. Darnell, 5 Litt. Rep. 319, 320; Per 
 Cur. in Cook v. Wilson's Adm'rs, Litt. Sel. Cas. 439 ; Schermerhorn v. Van Volkenburgh, 
 11 John. Rep. 529 ; Jackson ex dem. Glover v. Winslow, 9 Cowen's Rep. 13 ; Jackson ex 
 dem. Klock v. Rightmyre, 10 John. Rep. 314; Smith v. Lorillard, 10 John. Rep. 338; 
 Kicard v. Williams, 7 Wheat. 59 ; Jackson ex dem. Williams v. Miller, 6 Cowen's Rep. 
 751 ; Campbell v. Roberts, 3 Marsh. Rep, 623 ; Doe ex dem. Riley v. Million, 4 J. J. 
 Marsh. 395, 396. 
 
 7. So the law presumes that a fact continuous in ite character, still continues to exist, 
 until a change be shown ; as a partnership (1 Stark. Ev. 36), 22 Barb. 516 ; or, within 
 certain limits, that a life continues. Id. ; Innes v. Campbell, 1 Rawle, 373. And see 2 
 Ev. Poth. 333, No. 16, § 14. So, that a legal or actual possession continues. Bayard's 
 
 ' Lessee v. Colefax, 4 Wash. C. C. Rep. 38, That a corporation continues to exist. People 
 V. Manhattan Co., 9 Wend. 351. Tliat an entry and ouster by a landlord upon his tenants 
 continues, till a restoration be shown. Lewis v. Paine, 4 Wend. 433, 429. And see Jack- 
 son ex dem. Miller v. Porter, 4 Wend. 672 ; 9 Barb, 271. 
 
 Yet a written admission that the defendant was editor on one day, was held at Nisi 
 Prias no evidence that he was editor on a subsequent day. Macleod v. Wakely, 3 Carr. 
 & Payne, 311. And admitting insolvency at one time was denied as evidence that it 
 existed considerable time after. Hume v. Long's Representatives, 6 Monroe, 116, 119. 
 Qiiere. 
 
 (Bad character is presumed to continue ; 4 Denio, 431 ; and a gambler to continue a 
 gambler ; McMahon v, Harrison, 6 N. Y. 443.) 
 
 8. So, everything which happens naturally and commonly is taken as true; as that a 
 father loves his children. 1 Dora, b. 3, tit, 6, 8 4, art. 7. So of fraternal affection, for 
 where a younger brother entered on the land which descended to the elder brother, in his 
 a.b8ence, this was holden not to be adverse, beeausf of the relation between them. Gilb. 
 
 'ten. 28. and said in Magow's Case, Latch, 68, and see the cases supra, pi. 5, of mar- 
 *604 riage gifts to children. Farther, of things *happen}ng naturally; a collateral 
 
 relation claiming by descent from a decedent advanced in life, must prove that he 
 died mthovi issue, which shall not be presumed. Dudley v. Grayson, 6 M(inroe, 259. 263. 
 So, sanity shall be presumed. 2 Ev. Poth. No. 16, § 14 ; Lee's Heirs v. Lee's Ex'rs, 4 
 M'Cord, 183 : Jackson ex dem. Cadwetl v. King, 4 Cowen's Rep. 207; Den ex dem. Stev- 
 ens V. Van Cleve, 4 Wash. C. C. Rep. 262, 269 ; Attorney-General v. Parnther, 3 Bro. C. C. 
 441, 443 ; White v. Wilson, 13 Ves. 87, 88. 89 ; Jackson ex dem. Van Dusen v.'Van Dusen, 
 5 John. Rep. 144, 158 ; Hoge's Lessee v. Fisher, 1 Pet. C. C. Rep. 163 ; Kinlock v. Palmer, 
 1 Bep, Const, Ct, 235. And on the other hand, so amply have medical science and general 
 
500 Of I^esumptive JSuidence, [ch. x. 
 
 observation borne testimony to tlie obstinacy of a settled or habitual derangement of the 
 intellect, that semel fu/randibus semper furandibus, prcesumitur. Den ex dem. Stevens v. 
 Van Cleve, 4 Wash. C. C. Rep. 262, 369 ; Jackson ex dem. Van Dusen v. Van Dusen, 5 
 John. Rep. 144, 158, 159 ; Jackson ex dem. Cadwell v. King, 4 Cowen's Rep. 307, 216 ; 
 Attorney-General v. Parnther, 3 Bro. C. C. 441, 443 ; White v. Wilson, 13 Ves. 87. 88 ; 
 Hoge's Lessee v. Fisher, 1 Peters' C. C. Rep. 163 ; Vance v. The Commonwealth, 3 Virg. 
 Cas. 183 ; Lee's Heirs v. Lee's Ex'rs, 4 M'Cord, 189 ; Kinloch v. Palmer, 1 Rep. Const. 
 Ct. 225. 
 
 (On a trial for murder where the killing is proved or admitted, and the defense is 
 insanity and evidence received on that point, it is error to charge the jury that the bur- 
 den of proof is on the prisoner and that the defense must be proved beyond a reasonable 
 doubt. The People v. McCann, 16 N. Y. 58. The presumption is in favor of sanity, as 
 shown in the above cases, and as charged by Judge Goold in this case ; and the burden 
 of proof certainly rests upon the party holding the affirmative upon any given issue. Id. 
 65, 66. Proof of the killing is prima facie proof of the murder, but not complete or 
 conclusive proof ; as soon as the prisoner has given sufficient evidence to overcome the 
 prima facie case so made, the burden of proof again falls back upon the prosecution ; and 
 the indictment chaining a killing with premeditation and malice aforethought must be 
 affirmatively established by the prosecution. So that when the jury come to pass upon 
 the case they are to give the prisoner the benefit of a doubt upon the entire evidence 
 before them. Commonwealth v. Kimball, 34 Pick. 366 ; Commonwealth v. Rogers, 7 
 Mete. 500 ; Commonwealth v. York, 7 Boston L. Jl. 510 ; State v. Spencer, 1 Zabriskie, N. 
 J. R. 196 ; McNaughton's case, 47 Eng. Com. L. R. 131. Where the question is as to the 
 validity of a will, courts should be careful not to confound perverse opinions and 
 unreasonable prejudices with mental alienation. Setting aside cases of dementia, or 
 loss of mind and intellect, the true test of insanity is mental delusion. Seaman's Friend 
 Society v. Hopper, 38 N. Y. 619 ; S. C. 43 Barb. 635.) 
 
 Upon the same principle, the law presumes that a child witliin the age of discretion 
 did not act with guilty knowledge. Rex. v. Owen, 4 Carr. & Payne, 336; People y, 
 Davis, 1 Wheel. Cr. Cas. 230, 331. And see Walker's Case, 5 C. H. Bee. 137. 
 
 Innocence, as being the more natural and usual state, is always presumed, till rebutted. 
 
 2 Ev. Poth. No. 16, § 14. And so that a wife accompanying her husband in the commis- 
 sion of crime, acts under liis coercion, and consequently without a guilty intent. Rex v. 
 Knight, 4 Carr. & Payne, 116. So a minor is presum^ to be under the control and pro- 
 tection of the parent, even though such minor be out at hired service. Millar v. Thompson, 
 1 Wend. 447. 
 
 9. So every one is presumed to take care of his oM n concerns. 1 Dom. b 3, tit. 6 § 4, 
 art. 7. Hence the owner and vendor shall be presumed to know of obvious defects in the 
 tilings sold ; e. g. the adverse possession of his land by another. Lane v. Shears, 1 W^end. 
 438. It is also a presumption that he who pays is indebted. 1 N. Y. 337, 1 Dom. b. 3, tit. 
 6, § 4, art. 7, 10 ; James v. Biou, 2 Sim. & Stu. 606. Thus a person accepting and paying 
 a check has, prima facie, funds of the drawer to that amount. State Bank of North 
 Carolina v. Clark, 1 Hawks, 36. A ^ft is not to be presumed. Thus, though payment 
 may be presumed after twenty years, yet that being repelled, the law will not presume 
 the debt forgiven. Potter v. Titcomb, 7 Qreenl. 308. The law presumes, that a pre- 
 bendary de facto had performed the requisites to make him so. Dr. Sherard's Case, cited > 
 
 3 Bl. Rep. 853. 
 
 10. Another fruitful subdivision of presumption from what is natural and usual, sanc- 
 tioned both in the civil and common law, is the rule that every one governs himself by 
 the rules of right reason, and consequently acquits himself of his engagements and his 
 duty. 1 Dom. b. 3, tit. 6, § 4, art. 7.' This rule extends to every man, both iu liis official 
 and private character. Bank of the U. S. v. Dandridge, 13 Wheat. 69, 70. And see 
 Jackson ex dem. Ballon v. Campbell, 5 Wend. 572 ; per Collet, J., in Colvin v. Carter, 4 
 Ham. 354 ; Fridge v. The State, 3 Gill & John. 103; Whiitlesey v. Starr, 8 Conn. Rep. 
 134 ; Trnwhit v. Dupree, 3 Carr. & Payne, 557. 
 
 As to official acts : " The legal presumption is, that the surveyor, register, governor and 
 secretary of State have donn their duty in regard to the several acts necessary to be done 
 by them in granting lands ; and therefore, surveys and patents should always bp received 
 as prima fade evidence of correctness. Per Underwood, J., iu Wallace v. Maxwell, 1 J. 
 J. Marsh. 447, 450, 451. An agreeraenPof counsel made in the course of a cause shall be 
 presumed on proper authority from the client. Ellworthy v. Bird, 1 Tarn. 33. So, that a 
 aheriif selling horses on execution had levied on thorn. Hartwell v. Root, 19 John. Rep. 
 345 ; Marsh v. Lawrence, 4 Cowen's Rep. 461. So, that overseers of the poor have taken 
 the proper steps for the relief of a pauper (Minklaer v. Rockfeller, 6 Cowen'.f Hep. 276) ; 
 that. a board of supervisors have complied with the law in its proceedings to erect a new 
 town (People v. Carpenter, 34 N. Y. 86) ; that officers of government would not twice 
 survey and patent the same lands (Woodson v. Bnffljrd, 7 Monroe, 418); that an assessed 
 tax on certain land was imposed upon the possessor at the time, or other person bonnd 
 legally to pay (Rex v. Inhabitants of St. Lawrence, 4 Doug. 190 ; Rex v. Inhabitants of 
 St. James, 4 Doug. 300) ; that a district attorney has filed the transcript of a conviction 
 
CH. X.] And of Presumptions. 501 
 
 in the Court of Exchequer as required by statute (Hilts v. Colvin, 14 John. Eep. 183) ; 
 that a register's sale was duly advertised (Hickman v. Skinner, 3 Monroe, 211); that a 
 
 sheriff's sale was according to his duty (Terry v. Bleight, 3 Monroe, 371) ; that he 
 *605 returned the execution in due time (Maury v. *Cooper, 3 J. J. Marsh. 226) ; that 
 
 he gave due notice of sale (Hanson v. Barnes' Lessee, 3 Gill & John. 359) ; that he 
 held a ca. sa. the proper length of time to charge bail. Wheelock v. Hall, 3 N. H Bep. 
 310. That a rector in possession had read the thirty-nine articles, will be presumed. 
 Monk v. Butlej-, 1 lioU Rep. 83. And see 2 Anst. 872. So, that a man acting in a public 
 oflSce has been rightfully appointed (12 Wheat. 70) ; e. g., one acting as a surrogate. Rex 
 V. Verelst, 3 Camp. 432. And see Bishop v. Cone, 3 N. H. Rep. 513, and People v. Gilbt*t, 
 Anth. N. P. Rep. 191. So, that entries made in public .books were made by the proper 
 officers (13 Wheat. 70) ; that officers issuing a land patent, had the requisite warrant, plat 
 and certificate (Hickman v. Boffman, Hardin's Rep. 362) ; that a government surveyor did 
 Ms legal duty by surveying on the ground. Philips' Lessee v. Robertson, 3 Tenn. Rep. 
 431. A record stated a tax to have been reported as assessed ; this shall be intended to be 
 the report of the man who was sheriff at the time it was assessed, as the duty belonged to 
 him. Said in Bush's Heire v. Williams, 1 Coke's Rep. 360, 363. It shall be intended of a 
 parson de facto that he had subscribed the thirty-nine articles before the bishop, had pub- 
 licly read and assented to them, and had a license to preach. Powel v. Milbank, 2 Bl. 
 Rep. 851 ; S. C, 3 Wils. 355, by the title of Powell v. Milburn ; Anon., Clayt. 48. So, that 
 the auditor of the exchequer, on his removal, had delivered up the rolls. Lord Halifax's 
 Case, Bull. N. P. 298. So, that a constable delivering an execution for renewal, held it 
 long enough to levy and collect according to law (Wilson v. Gale, 4 Wend. 623, 626) ; that 
 a tax collector sold no more land than was necessary to pay the tax (Ives v. Lynn, 7 Conn. 
 Rep. 505) ; that the certificate of appraisal was in the hands of the sheriff before he set off 
 the land under the^./a. (Booth v. IBooth, 7 Conn. Rep. 350); and that an officer commis- 
 sioned by the governor was duly nominated. Commonwealthv.Frazier, 4 Monroe, 513,516. 
 In one case, where a sheriff received money on a fi. fa. after the return day, having 
 received one installment before, the court were asked to presume that he levied on the 
 debtor's property before the return day, which act alone could give him power officially 
 to receive money afterwards. But they would not presume that ; saying, where a fact is 
 necessary to confer authority, it is not to be presumed, though every proper official step 
 will be presumed after authority is shown. Rudd v. Johnson, 5 Litt. Rep. 19. 
 
 Transactions of a private or unofficial character are interpreted by the same lenient 
 rules of presumption. Odiosa et inhonesta non nuni prcesumenda (10 Rep. 56, a). Injuria 
 nonprmsumuntwr (Co. Litt. 232 b). Omnia prce»umuntur legitime facta, donee probetur in 
 eontrarium (Co. Litt. 233 b), Waus est odiosa, et non prcesumenda (Cro. Car. 550), are max- 
 ims of daily application in our courts, both of civil and criminal jurisdiction, to every 
 diversity of human action which is not itself of such a character as to pronounce its own 
 condemnation. A party having a legal right, enters upon land ; the law presumes that 
 he enters with a view to that right, and not with a wrongful intention. Benson v. BoUes, 
 8 Wend. 175, 181. So, that a deed of a trustee having power to convey upon a certain 
 contingency, was not given till after the condition happened (Morrison v. M'Millan, 4 
 Litt. Rep. 310); and generally that a trustee has faithfully executed his trust. Shilk- 
 necht V. Eastburn's Heirs, 3 Gill & John. 114. And so against every act of immorality. 
 Cusack V. White, 1 Rep. Const. Ct. 283 Equally so against acts of negligence ; for where 
 it was sought to (Sharge the defendant with having placed a dangerous commodity on 
 board a ship, without due notice to the captain, it was held, that the vrant of notice 
 should not be presumed ; but the contrary. Williams v. The East India Co. 3 East, 192, 
 And there cannot be a doubt that negligence in most of the different descriptions of 
 bailees, should never be presumed. Story on Bailm..l52, 153, 190, 230. 231, 270, 271, 296, 
 and the cases and authorities cited at tliese respective pages. Schmidt v. Blood,' 9 Wend. 
 268, 271. So, when a vessel is in her usual business, it will be presumed that the master 
 is on board ; that being his duty. Cutter v. Moore, 6 Halst. 219. And see Co. Litt. 78 b. 
 A fortiori as against any one charged with actual fraud. Kinlock v. Palmer, 1 Rep. 
 Const. Ct. 224; Levingsworth v. Fox, 2 Bay, 520 ; Marshall v. Lewis, 4 Litt. Rep. 140; 
 Hardin v. Baird's Heirs, Litt. Sel. Gas. 346 ; Pisk v. Gerard, 2 M'Cord, 11. The presump- 
 tion is, that a deed bears its true date. Breckenridges v. Todd, 3 Monroe, 54, 55 ; Seymour 
 V. Van Slyck, 8 Wend. 403. 
 
 And after every effort to establish fraud, if it remain doubtful upon the proof, inno- 
 cence is to be presumed. 3 Cas. Ch. 85, 114; Lee v. Cook, 1 Wash. 306, 308; Munroe v. 
 Gardner, 1 Rep. Const. Ct. 308, 309. Et in facto quod »e liabet ad bonum et malum, magis 
 
 de bono quam de malo prceieamendiim est. Co. Litt. 75 b. 
 *606 *So the presumption is against the breach of a positive law. By an English statute, 
 
 letters not sent with, and respecting packages, must be mailed, and cannot be sent by 
 private post: it appearing that a letter was with the package in tlie parcel sent, the court 
 presumed that it had respect to the parcel, inasmuch as the contrary would be to violate 
 the act of Parliament. Bennett v. Clough, 1 Barnw. & Aid. 461. Upon the authority of 
 the last case, it was lately held that an importer shall be presrmsd to liave caused his 
 goods to be entered at the custom-house, according to 46 Geo. Ill, c. 87, § 1. Sissons v. 
 
502 Of Presumptive M}idence, [ch. x. 
 
 Bixon, 8 Dowl. & Ryl. 526, 529 ; S. C, 5 Baraw. & Cress. 758. So strong is this presump- 
 tion, that where a woman married within twelve months after her first husband was last 
 heard of, his death was presumed. Rex y. Inhabitants of Twyning, 2 Barnw. & Alders. 
 386. So, evidence that a theatre has gone on to perform without interruption autliorizes 
 the presumption that it is licensed pursuant to the statute. Rodwell v. Hedge, 1 Carr. & 
 Payne, 230. A candidate for a corporate office shall be presamed to have taken the sacra- 
 ment within the time required by statute (Rex v. Hawkins,'lO East, 211) ; and a corpora- 
 tion, in receiving a contract lor debt, shall be presumed to have acted within its powers. 
 New York Firemen's Ins. Co. v. Sturges, 2 Cowen's Rep. 664. And see 12 Wheat. 69. » So 
 if'Bt buy land at sheriff's sale. Ex parte The Peru Iron Company, 7 Cowen's Rep. 540. 
 
 Upon the same ground, we are to presume that an unexplained interlineation, erasure, 
 obliteration, or other alteration of a yviitten instrument, was made before its executiop. 
 Such would, of course, be the presumption on a criminal prosecution for forgery ; and the 
 range of decision in civil cases, with a few exceptions, follows the same rule. In Fitz- 
 gerald V. Ld. Fanconberge (Fitz-Gl. 207), the interlineation was in a deed of conveyance or 
 settlement of F.'s estate, and tended to enlarge the power of revocation over his estate, 
 which he had received to himself ; and Lord Chief Baron Reynolds (with whom the mas- 
 ter of the Rolls and Lord Chancellor seem to have concurred) said, he must look upon it 
 as if it had been originally incorporated in the body of the deed, " for there was no proof 
 when these words were interlined." Fitz-G. 214. The Lord Chancellor speaks of it at 
 page 223. In.Trowel v. Castle (1 Keb. 22), it was given in charge to the jury, that "an 
 interlineation, without anything appearing against it, will be presumed to be at the time 
 of the making of the deed, and not after." So, in Wickes v. Caulk (5 Har. & John. 41), 
 on objection that the subscribing witnesses' names were erased ; the, court declared that 
 " it is incumbent on a party who wishes to avoid a deed by its erasure to prove that the 
 alteration was made after its execution and dehvery." See note 433, vol. 2. 
 
 Exceptions to this doctrine would seem to be found in the case of bills of exchange, 
 promissory notes and the like commercial paper. Thus, on a question arising whether the 
 date of an acceptance was altered (the alteration appearing on its face) before or after 
 the bill was indorsed, the indorsement being unavailable if made before the alteration, 
 Abbott, Ch. J., refused to presume in favor of an alteration at tlie proper time, observing 
 that the plaintiff must prove the alteration to have preceded the acceptance, otherwise 
 it would be void for want of a Dev/^ stamp. Johnson v. Duke of Marlborough, 2 Stark. 
 313. Here, it will be perceived, was a complete departure from the usual presumption in 
 favor of innocence ; for the judge intends a forgery. If the case went on a general inclin- 
 ation observed among men to evade the burden impend by the stamp laws, it is obvio us 
 that the onus would be changed in respect to various other species of paper, as well as 
 the commercial kind. So, in a subsequent case, where the *ction was by the indorsee 
 against the acceptor of a bill of exchange, an alteration appearing to have been made in 
 the sum, it was held at bar to lie with the plaintiff to prove that it was properly made. 
 Henman v. Dickinson, 5 Bing. 183 ; S. C, 2 Mo. & Payne, 289. 
 
 How far these decisions will be followed by the American courts is quite doubtful. The 
 direct contrary has been holden in New Jersey. Cumberland Bank v. Hall, 1 Halst. 215. 
 And see Sayre v. Reynolds, 2 South. 737. So semi), in kew York. Rankin v. Blackwell, 
 2 John. Cas. 198, 200. But see Jackson ex dem. Gibbs v. Osborn, infra. 
 
 Another exception has been made in case of an appeal bond, though the court do not 
 deny the general presumption in favor of an alteration before execution. They say the 
 presumption may be rebutted ; and they will not pat the appellee to that hazard. Sut- 
 phen V. Hardenbergh, 5 Halst. 288, 2«9 ; Sbinn v. White, 6 Halst. 187, S. P. In the latter 
 case, it is said, a note of the alteration by the attesting witness would have obviated the 
 objection ; and that this might have been subjoined by the witnesses on the motion to 
 dismiss the appeal. 
 
 And it is agreed bjr all the cases, tlmt where the alteration appears to be suspicions 
 *607 on its face, *and is not duly noted, as if the paper have been cut close, or a muti- 
 lated figure be left, or the ink differ, or the handwriting be that of a holder inter- 
 ested in the alteration, &c., tho onus lies with the party who claims that the alteration 
 was genuine. Bishop v. Chambre, 3 Carr. & Payne, 55; S. C, 1 Mood. & Malk. 166; 
 Nunnery v. Cotton, 1 Hawks, 222 ; Jackson ex dem. Gibbs v. Osborn, 2 Wend. 555 ; Jack- 
 son ex dem. Collier v. Jacoby, 9 Cowen's Rep. 125, 126; M'Micken v. Beauchamn 2 
 Miller's Lou. Rep. 290. 
 
 'Upon what internal appearances suspicion may arise, we have a very full enumeration 
 in 1 Shep. Touch. 69. See also, 2 Jac. lj»w Diet. 224, Deed, iii ; 5 Id. 384, 385, Rasure. 
 
 So if the suspicion arise from extraneous circumstances. Doe ex dem. Campbell v. Roe, 
 2 Hawks. 93. And the instrument may, in turn, be sustained by internal evidence of 
 fairness, or external evidence applicable to the transaction. Glanville v. Paine, Biirnard- 
 ist. Ch. Rep. 18, 19, 20. And see Cumberland Bank v. Hall, 1 Halst. 215 ; Eankin v 
 Blackwell, 2 John. Cas. 198. 
 
 Nor is it to be disguised that an unpleasant appearance of contrariety exists among the 
 cases as to the general rule, where no suspicion arises independent of the alteration itself. 
 While various high authorities follow the ancient rule of presumption in favor of an alter 
 
cii. X.] And of Presumptions. 503 
 
 ation Ufore execution (12 Vin. Abr. 57, Evidence Q, a. 2, pi. 5 ; 13 Id. 41, Fails u, pi. 11 ; 
 a Wood's Inst. (lOth ed.) 286, ch.'3 ; 1 Swift's Syst. 310 ; 4 Cruis. Dig. 496, tit. 33, cli. 26, 
 § 10; Rankin v. Blacliwell, 2 Jobn. Gas, 198; Cumberland Banlt v. Hall, 1 Halst. 215; 
 Wickes V. Caulk, sapra; Stark. Ev. pt. 4, p. 476, note h; Prevost v. Qratz, 6 Wheat. 481, 
 502) ; other cases, or at least other dicta of very able judges are diametrically opposed. 
 In Jackson ex dem. Gibbs v. Osborn, (2 Wend. 555, 559), although that case be sustaina,bl9 
 on the ground of a strong suspicion, independent of the mere erasure, yet the reasoning 
 of the court, who speak by Sutherland, J., is general, and would seem to change the onus 
 in all cases. The authorities cited by him apparently relate to one case only, viz : that of 
 an altered deed, the execution of wliich is claimed to be proved by its age and possession 
 under it. In such a case age and possession are not sufficient, but the ordiuary proof must 
 be resorted to. Mr. Phillipps (Vol. 1, 405, ed. of 1823), cited by the learned judge, also 
 adds that the blemish must be satisfactorily explained ; the principle of^ which expression 
 would seem applicable to cases of alteration generally. Tlie dictum of Washington J , in 
 the case of Prevost v. Gratz, in note 6 to the above page of Phillipps, reported in 1 Pet. 
 C. C. Rpp. 364, 369, is to the same effect with tlie doctrine of Sutherland, J. ; and both are 
 sustained by the Nisi Prius decision, and charge to the jury of M'Kean, C. J. Morris' 
 Lessee v. Vanderenl 1 Dall. 64, 67. 
 
 The force of Mr. Justice Washington's decision and dictum, in Prevost v. Gratz, was 
 taken away by a review and reversal of his decree, in the Supreme Court of the United 
 States (S. C. 6 Wheat. 481, 503) ; by which the authority of that high tribunal is turned 
 in favor of the ancient rule. Duncan, J., speaking of that case, in Heffelfinger v. Shutz 
 (16 Serg. & Rawle, 47), calls it a presumption made in favor of innocence, " even where 
 the alteration was in favor of the person in whose handwriting it was." Still, however, 
 if we superadd the late decisions of the English courts upon commercial paper, which, 
 although we have set them down as making an exception, are not directly so treated by 
 the j udges, the discrepancy may be quite eml-arrassing. We called those cases excep- 
 tions, because they do not profess to overrule or question the ancient cases. It is certainly 
 a point of no little interest, how the rule shall finally stand, which must exercise almost 
 a daily influence on important rights. The dictunj of a learned court, proceeding mainly 
 according to the <avil law, also sustains the above departures from what was clearly the 
 ancient rule of the common law. We allude to the late case of M'Micken v. Beauchamp 
 (2 Miller's Lou. Rep. 290). There a contract appeared to be altered in a material part, by 
 different ink. The court disregarded the difference of the ink (which we have seen would 
 have changed the onus under the old common-law rule) ; and, on quotations from the civil 
 law, as construed by Spanish commentators, take the broad ground, "that writings erased 
 or interlined, are presumed to he false." They add that " the rules in relation to this sub- 
 ject, cited from the Spanish and civil law, are in conformity with the law of merchants, 
 and all systems of jurisprudence with wiiich we have anjt acquaintance." Id. 292. 
 
 (Where a deed or assignment is offered in evidence as a link in a chain of title, it is 
 admissible notwithstanding an alteration by erasure and interlineation apparent on the 
 face of the instrument, in a different ink. Smith v. McGowan, 3 Barb. 404. This is 
 sometimes placed on the ground that the law presumes an interlineation in a deed to have 
 been made at or before the time of its execution. Doe v. Catamore, 5 Eng. Law and Eq. 
 349 ; Farnsworth v. Sharp, 4 Sneed (Tenn.), 55 ; Stoner v. Ellis, 6 Ind. 152 ; Bailey v. Tay- 
 lor, 11 Conn 531, 534 ; Crabtree v. Clark. 7 Sheph. 337 ; 1 Greenleaf Ev. § 564. In some of 
 the States no such presumption is raised. Ely v. Ely, 6 Gray (Mass!), 439 ; Jordan v. 
 Stewart, 33 Penn. State, 244. There being no circumstance of suspicion appearing upon 
 the deed, except that which arises from the mere fact of tlie ersisure or interlineation, the 
 court will not presume a forgery of the instrument ; but wlien the alteration of the paper 
 IS such as to change its legal effect in favor of the party producing it, the presumption 
 that it was made before execution i« not very strong ; barely sufficient for its admission 
 in evidence ; and in any case where the alteration is material, the time wlien it was made 
 is a question of feet to be passed upon by tlie jury, and one that naturally calls for some 
 explanation on the part of the person offering the instrument in evidence. Jackson v. 
 Osbom, 3 Wend. 55^ ; Herrick v. Malin, 22 Wend. 388. The refusal to produce a deed 
 alleged to contain a clause fraudulently inserted, which did not appear in the mortgage 
 as recorded in the clerk's office, is a badge of fraud from which the jury may pronounce 
 against the claim under that clause. Hager v. Hager, 38 Barb. 92. In the case of a wUl, 
 ■which bears on its face evidence of having been interlined and added to and altered in a 
 material part, the whole being in the handwriting of the testator, the party producing 
 and claiming under it is bound to explain tlie suspicious circumstances ; evidence being 
 given on both sides, the question whether the deceased executed that will, is one of fact, 
 unembarrassed by any presumption one way or the other. Van Buren v. Cockburn, 14 
 Barb. 118, 
 
 The act of an officer certifying a j udgment and noting erasures, alterations and inter- 
 lineations, will be presumed to have been made at the time the roll was authenticated, 
 truly and in good faith. Lazier v. Westcott, 36 N. Y. 149. 
 
 In respect to bills and notes, it will not be presumed that an alteration by erasure or 
 by interlineation, apparent on the face of the paper, which tends to diminish the rights 
 
504 ^f JPresumptive Evidence, [ch. x. 
 
 of the party to whom it was given, was made after the paper was executed. Bailey v. 
 Taylor, 11 Conn. 531 ; 32 Barb. 647, 650 ; and it has been frequently held, though the 
 authorities are not harmonious, that no such presumption will be raised even where 
 the alteration would enure to the advantage of the payee or holder. Agawam Bank v. 
 Sears, 4 Gray, 95,; 6 Ind. 152 ; 2 John. Cases, 198 ; 2 E. D. Smith, 1. Clearly, not where 
 the payee only fills in a blank in the note. Kitchen v. Place, 41 Barb. 465. The English 
 rule calls for explanation of the alteration of the bill or note from the party producing 
 it. Knight v. Clements, 8 Adol. & Ellis, 215 ; Hgnman v. Dickinson, 5 Bing. 183 ; Clifford 
 V. Parker, 2 Man. & Qr. 909. An alteration of a note so as to make the interest payable 
 semi-annually, made by the maker and payee after its delivery, discharges the surety. 
 Dewey v. Reed, 40 Barb. 16 ; Warrington v. Early, 75 Eng. C. L. 763.) 
 
 But although it be said that fraud, &c., are not to be presumed, the student should be 
 careful to remember that this is predicable of those acts only which stand alone. Not 
 
 ■ that fraud, like crime, may not be made out and presumed from circumstantial testimony. 
 
 Per Lord Hardwicke, in Aston v. Aston, 1 Ves. 268 ; Watkins v. Stockett's Adm'rs, 
 *608 6 Harr. & John. 435 ; Brogden v. * Walker's Bx'r, 2 Id. 292. True, this ought not to 
 
 be slight. Caldwell v. Benedict, 8 Mart. Lou. Rep. (N. S.) 454. Yet strong presump- 
 tive circumstances indicating fraud, will outweigh positive proof against it. The Short 
 Staple, 1 Gallis. 104. Indeed, so common and obvious are these circumstances in some 
 
 ■ cases, as where property is transferred in fraud of creditors, that the professional reader 
 can find ample illustration in his own recollection. The Court of Chancery constantly 
 presumes fraud from certain confidential relations, as that of trustee and cestui que trust, 
 principal and agent, &c., existing between the parties in respect to the subject matter of 
 the contract (Gallatian v. Cunningham, 8 Cowen's Rep. 861) ; a principle which constitutes 
 an important distinction between the jurisdiction of chancery and the courts of common 
 law. Jackson ex dem. Cadwell v. King, 4 Cowen's Rep. 207. 
 
 (A voluntary conveyance by a debtor to a trustee for the benefit of his wife, is deemed 
 fraudulent and void, as against existing creditors : Reade v. Livingston, 3 Johns. Ch. 481 ; 
 to render a deed voluntary, it must he without any the least valuable consideration ; if 
 given for any the least valuable consiaeration, the question whether it be fraudulent as to 
 creditors is one of fact for a jury. Jackson v. Seward, 5 Cow. 67 ; S. C. 8 Cow. 406. Even 
 a voluntary conveyance from a parent to his child by way of advancement, though pre- 
 sumed fraudulent as against existing creditoys, may be upheld where the presumption is 
 repelled by circumstances or by positive evidence. Id. 406 ; Van Wyck v. Seward, 18 
 Wend. 375. The intent to defraud need not be shown by direct evidence : a conveyance 
 by the father to his sou of all his property, in part consideration of an unliquidated indebted- 
 ness to him for several years' labor, and in part to provide for his own and his wife's 
 future support, the sou to pay all his debts except a contingent liability by indorsement, 
 the whole consideration being';nuch less than the value of the property conveyed, is 
 fraudulent and void, as against creditors. Robinson v. Stewart, 10 N. Y. 189. A sale to 
 . an infant partly on credit, made by a firm in embarrassed circumstahces, is not necessarily 
 fraudulent and void as against creditors. Matthews v. Rice, 31 N. Y. 457. To avoid a 
 voluntary conveyance, as against creditors, it is not necessary that the debtor should be 
 insolvent, or believe himself to be so, at the time of the grant; it is sufficient if liis 
 solvency depend upon his success in business, in a pending speculation. Carpenter v. 
 Roe, 10 N. Y. 227. When the conveyance is made by a man in prosperous circumstances, 
 and the gift is only a reasonable provision for his wife or children, whicli leaves him fully able 
 to discharge all his debts, the presumptive evidence of fraud is met and repelled. Babcock v. 
 Eckler, 34 N. Y. 623 ; Hinds' Lessees v. Longworth, 11 Wheat. 199. The fraud which 
 must be alleged and pioved, may be established by facts and circumstances : Newman v. 
 Cordell, 43 Barb. 448 ; 34 N. Y. 633 ; Waterbury v. Sturtevant, 18 Wend. 353 : if not 
 inferable from the circumstances, the conveyance will not be invalidated by a subsequent 
 inability to pay an existing debt; 34 N. Y. 623. 
 
 In an action for damages for inducing plaintiffs to sell and deliver goods by false and 
 fraudulent representations, it seems plaintiff will not be allowed to ^stify in answer to a 
 question by his own counsel, tliat he sold and delivered the goods relying on the truth of 
 defendant's representations : Shaw v. Stine, 8 Bosw. 157 ; his intention and motives are in 
 issue and so are the representations themselves ; liis acts must declare his intent, as in the 
 case of a voter depositing a written ballot. People v. Saxton, 32 N. Y 309. Post, p. 830.) 
 ■ So a conspiracy may be proved by circumstances, among which are the acts of the par- 
 ties in doing the injury which is the alleged object of the conspiracy. Jones v. Becker, 7 
 Cowen's Rep. 445. 
 
 11. Again : men are ])resumed to act according to their own interest. Pinch's Law, 37. 
 A tenant in tail pays off an incumbrance on the estate. .Why? In order to exonerate it; 
 for he can at any time obtain the fee simple in another form, and therefore has no interest 
 in keeping it on foot to protect the estate, or enlarge it, or to reimburse himself. Other- 
 wise of a tenant for life, who has but a temporary interest. He cannot save himself 
 witliout the incumbrancer's place, which chancery will give to him, with all the incum- 
 brancer's rights and remedies, upon the presumption that the tenant intended the apparent 
 payment as an act of purchase. And so of the like cases. Per Lord Thurlow, C, in 
 
CH. X.] And of Presumptions. 505 
 
 Countess of Shrewsbury v. Earl of Shrewsbury, 1 Ves: jun. 227, 333, and the case at large ; 
 S. C, 3 Bro. C. C. 130, 135, 126 ; Kirkham v. Smith, 1 Ves. sen. 258, 260 ; Amesbury v. 
 Brown, 1 Ves. sen. 477, 480, 481 ; Jones v. Morgan, 1 Bro. C. C. 306, 218 ; Ware v. Polhill, 
 11 Ves. 2or, 374, &c. ; St. Paul v. Lord Dudley, 15 Vesey, 167, 173 ; Redington v. Reding- 
 ton, 1 Ball & Beat. 131, 141 ; Earl of Buckinghamshire v. Hobart, 3 Swanst. 186, 199, 300. 
 
 This presumption, like any other, may in various ways be repelled. Per Lord Eldon, 
 C. in St. Paul v. Viscount Dudley, 15 Ves. 173 ; Jones v. Morgan, 1 Bro. C. C. 206 ; Lady 
 Shrewsbury v. Lord Shrewsbury, 3 Bro. C. C. 126 ; Redington v. Redington, 1 Ball & Beat. 
 143 ; Windham v Lord Egremont, Ambl. 753 ; Kirkham v. Smith, 1 Ves. sen. 258, 360 ; 
 Amesbury v. Brown, 1 Vesey, sen. 480 ; Earl of Buckinghamshire v. Hobart, 3 Swanst. 
 186, 199, 200 ; Forbes v. Moffat, 18 Vesey, sen. 384. And see Gardner v. Astor, 3 John. 
 Ch. Rep. 53, 55. 
 
 The modern cases have arisen mainly upon mortgage transactions. Thus, where the 
 equity of rndemption was devised to the mortgagee, it was held that this union of estates 
 should extinguish the mortgage, if that result would be indifferent to the devisee ; other- 
 wise if he had an interest to keep it on foot ; and so of other like cases. Forbes v. Moffat, 
 18 Ves. 384 ; Gibson v. Crehore, 5 Pick. 146 ; Freeman v. Paul, 3 Greenl. 360 ; Starr v. 
 Ellis, 6 John. Ch. Rep. 393; Mills v. Comstock. 5 Id. 314 ; Lockwood v. Sturdevant, 6 
 Conn. Rep. 373. Printafaeie, it is an extinguishment ; and the one who pays must show 
 that his interest was to have the mortgage kept on foot. Gardner v. Astor, 3 John. Ch, 
 Rep. 53, 55 ; Burnet v. Denniston, 5 Id. 35; Starr v. Ellis, 6 Id. 393. Thus, where one 
 owning the equity of redemption in fee, pays off a mortgage in which the mortgagor's 
 wife joined, and wliich payment, if allowed to operate as an extinguishment, would let in 
 her dower against the owner, discharged from the, mortgage, the latter shall be taken as 
 still subsisting. Gibson v. Crehore, 3 Pick. 475 ; S. C. per Wilde, J., 5 Pick. 146. And 
 this would be so, though the owner not only pay, but take a release from the mortgagee, 
 Caril V. Butman, 7 Greenl. 103 ; Thompson v. Chandler. Id. 377. So where the mortgagee 
 took a deed with warranty from the mortgagor, the former was still allowed the benefit 
 of his mortgage, as against a previous attaching creditor of the mortgagor. Myers v. 
 Brownell, D. Chip. Rep. 448. So of the covenants of title in the mortgage. Lockwood 
 V. Sturdevant, 6 Conn. Rep. 373, 388. And though he take a release of the equity of 
 redemption on his prior mortgage, and discharge the debt, this shall not let in a subse- 
 quent mortgage. Baldwin v. Norton, 3 Conn. Rep. 161. But in such a case, the proof of 
 an interest or intent at the time to keep the mortgage on foot, should be clear and precise. 
 Burnet v. Denniston, 5 John. Ch. Rep. 35. Where the intention is declared by the deed, 
 to consider the mortgage paid, this shall conclude. Wade v. Howard, 6 Pick. 492. 
 M'hether considerations of interest prevail or not, all the cases agree that the intent may 
 be declared at the time, or deduced from various circumstances. James v. Johnson, 
 •609 6 John. *Ch. Rep. 417. And this doctrine \vill be found to have been very fully 
 examined in the last cited case, when it came to be reviewed in the Court of Errors, 
 where it appears by the title of James v. Morey , 2 Cowen's Rep. 246. See the remarks and 
 quotations of the learned judges, at pp. 285 to 287, 303, 304, 313, and 318. Hartley v. 
 Tatham, 10 Bosw. 273, 283. 
 
 Upon the same principle, long acquiescence by one in the adverse enjoyment of a 
 right by another, leads to an inference that the former has parted vrith it in a legal form ; 
 and, in time, may lead to the presumption of the necessary instruments of assurance, or 
 of the requisites to make existing assurances valid against him. So of the extinction and 
 satisfaction of demands, and the sanctioning of secondary evidence. See per Robertson, 
 J., in Fitzliugh v. Groghan, 2 J . J. Marsh. 435 to 437, and Bigger's Adm'r v. Alderson, 1 Munf. 
 64.60. But this principle will be illustrated by our subsequent notes on presumptive 
 evidence of grants, payments, extinction, &c. 
 
 Upon the same principle, it is presumed that a man has adopted or accepted an advan- 
 tageous act, offer, gift, bequest, devise or conveyance, &c., until his positive disclaimer or 
 refusal is shown. Per Bayley and Littledale, J's, in Bailey v. Culverwell, 8 Barnw. & 
 Cressw. 448 ; Doe ex dem. Marston v. Butler, 3 Wend. 149 ; Camp v. Camp, :> Conn. Rep. 
 391; Townsendv. Tickell, 3 Barnw. & Aid. 31, and the cases there cited, particularly 
 Thompson v. Leach, 2 Salkeld, 618. See also Nicholson v. Wordsworth, 2 Swunst. 365, 
 372 ; Adams v. Taunton. 5 Madd. Rep. 435 ; and 2 Prest. on Abstracts, 336, et seg. This 
 rule has, of late, mainly been applied to the presumed acceptance by creditors of their 
 debtor's assignment, in trust for their payment, where the assignment requires no release 
 or other disadvantageous terms (NichoU v. Mumford, 4 John. Ch. Rep. 532, 529 ; Halsey 
 V. Fairbanks. 4 Mason, 306. And see Brooks v. Marbury, 11 Wheat, 78; and M'Allistet 
 V. Marshall, 6 Binn. 338) ; or to the assent of the assignees or trustees. Wilt v. Franklin 
 1 Binn. 503. And see Lippincott v. Barker, 2 Binney, 174 ; Shepherd v. M'Evers, 4 John! 
 Ch. Rep. 136 ; Nelson v. Blight, 1 John. Cas. 205 ; Weston v. Barker, 12 John. Rep. 276 " 
 and Cumberland v. Codrington, 3 John. Ch. Rep. 229, 361. But the doctrine of pre^ 
 Bumed assent in these pai-t cular cases is received, if at all, with great caution in Mass- 
 achusetts, where, to warrant it, the benefit must appear to be decided arid unequivocal. 
 Russell v. Woodward, 10 Pick. 408, and the cases there cited. The Supreme Court" of that 
 state, however, applied the principle very strongly in another case, where they presumed 
 the assent of a widow to a testamentary provision in lieu of dower, it appearing decidedly 
 Vol. I. 64 
 
506 Of Presumptive M)iclSnce, [ch. x. 
 
 fidvantageoua. Merril v. Emery, 10 Picli. 507, 510. In England, it has lately been held that 
 pne shall be presumed to have adopted an advantageous act done by another as his assumed 
 Sgent. Per Bayley and Littledale, J's, in Bailey v. Culverwell, 8 Barnw. & Cressw. 448. In 
 Bealy v. Taylor, 5 Hill, 587,vfhere a debtor residing in Baltimore, in failing circumstances, 
 sent goods to Taylor & Co. at New York, to be delivered to plaintiff in part payment of a 
 debt due to him ; at the same time sending to plaintiff a letter apprising him of the fact, 
 and the goods were received by Taylor & Co., and sold within a few days. It was held 
 that plaintiff miglit recover the value of the goods so sent to him ; that the arrangement 
 being beneficial to the plaintiff, his assent might be presumed, on the principle that a, 
 trust created for the benefit of a third person, though without his knowledge, may be 
 subsequently adopted and enforced by him. The acceptance of a deed delivered to a 
 stranger for the use of a grantee, will be presumed. Church v. Gilman. 15 Wend. 656. 
 The question of acceptance is one of fact. 20 Barb. 333. Sturtevant v. Orser, 24 N. Y. 538. 
 
 13. Other presumptions arise from the nature and general incidents of property. To 
 the ownership of lands, certain lights and privileges are annexed de communi jure ; 
 though not so inseparably but that they may be disannexed, and vested in another. 
 Thus the lord of the manor owns the soil of common right ; and on his being proved lord 
 of ttie manor, his ownership of the soil is intended ; and it lies with the opposite side to 
 show that any part belongs to another. Co. Litt. 361 a, note 1, in Harg. & Butl. ed. So 
 the different land holders of a manor have, prima facie, a. right of common on the lord's 
 waste ; and the owner of the surface of the land, to the minerals or inferior strata ; the 
 . .possessor of a several fishery to the ground covered with water (Co. Litt. 122 a, note 7, 
 Harg. & Butl. ed. ; Lofft, 364, title; Separate Fishery ; Parthericlie v. Mason, 3 Chitt. Rep. 
 658) ; and of various other incidental rights, which see enumerated in 3 Ridgw. Irish P. C. 
 333, et seq. ; the lord to the soil of the highway running over the waste of his manor 
 (Lofft, 358 ; 1 Roll. Abr. 393, 1, 5 ; post, Vol. II, and the cases there cited) ; and the owner 
 of inclosed land, to the waste intervening between that and the highway. Pring v. 
 Pearcy, 7 Barn. & Cress. 304. So, where a road passes between the land of A. and B., 
 prima facie, each owns the soil thereof, v^que adjUem mm. Lofft, 359 ; per Gibbs, Ch. J.' 
 in Grose v. West, 7 Taunt. 41 : Watrous v. Southworth, 5'Conn. Hep. 305 ; Cook v! Green, 
 11 Price, 736 ; Post, Vol. II. And see per Bayley, J., in Noye v. Reed, 1 Mann.' & Ryl.' 
 65 ; 3 Kent's Comm. 432, 433, and cases there cited. So two proprietors on opposite sides 
 of a river not navigable, that is to say, above the ebb and flow of the tide, own usque filum 
 aqucs; and the proprietor of both sides owns the whole. Ex parte Jennings, 6 Cowen's 
 Rep. 518, 5Sti,et seq. note a, and the authorities there cited; 3 Kent's Comm. 427, et seq. 
 (3d ed.), and the authorities there cited; to which add 3 Dane's Abr. 693, § 13; 
 *610 Waters v. Lilly, 4 Pick. 145 ; Commonwealth v. Chapin, *5 Pick. 199 ; per Lord 
 Tenterden:, Ch. J., in Mason v. Hill, 3 Barnw. & Adolph. "76 ; Fleming v Kenney 
 4 J. J. Marsh. 158 ; and Scott v. Wilson, 3 N. H. Rep. 321, 325. 
 
 Aa before remarked, these incidental or presumptive rights are not inseparable. The 
 presumption may, therefore, be rebutted. 1 Rol. Abr. 401 ; 16 Ves. 390; Co. Litt. 132 a 
 note of Hargr. & Butl. ; Lade v. Shepherd, 3 Str. 1004 ; Grose v. West, 7 Taunt. 39! 
 Thus the presumption that the right of minerals accompanies the fee, may be rebutted 
 by showing a user by others. Rowe v. Grenfel, Ry. & Mood. N. P. Cas. 396. 
 
 13. Otlier presumptions are founded on the dictates of prudence and discretion ; as that 
 regular and ordinary means are adopted for a given end. Hence, where the means calcu- 
 lated to attain a certain end appear to have been adopted, or the end itself appears, to 
 have been attained, a technical and particular completion in the one case, or all the 
 ordinary previous steps in the other, need not be proved, but will be presumed'; especially 
 if the absence of particular proof be accounted for. Thus proof of sealing and delivery 
 without the signing of a deed, the usual place on the deed for this being mutilated 
 would doubtless warrant the presumption that the deed was signed. So if the deed be 
 lost. So where the attestation says only " sealed and delivered," in a case where you are 
 put to proof of the subscribing witness's handwriting ; or where there is no attesting 
 witness ; but you prove the parties' hand to a paper sealed, with the usual attestation 
 "sealed and delived," the paper being in your hands and for your benefit; or in ttie 
 ordinary case of establishing a contract by simply proving the signature to be in the 
 handwriting of the party to be charged. In all these cases something is wanting in 
 the direct proof; the handwriting in one case, the sealing in another, the delivery in 
 another, yet the facta which are proved lead irresistibly to the presumption that the other 
 acts requisite to ^ive validity to the instrument were, in truth, done, and the law applies 
 4he maxim, omma p^-msu/muntur recte soUeniter esse acta, donee probetur in coiitrarium. 
 See 12 Wheat. 70. This is a maxim of extensive application in the law of presumptive 
 evidence ; and where direct proof is beyond the party's reach, or in cases where it Is not 
 reasonably to be expected, comes in aid of numerous defects. M'Queen v Parquhar 11 
 Ves. 467, 477, 478; Burrowes v. Lock, 10 Ves. 470, 473 ; Pigot v HoUoway, 1 Binn. 436 ■ 
 Rex V. Catesby, 2 Barnw. & Cressw. 814; Den ex dem. Gaston v. Mason, Coxe's Rep. 10- 
 Curtis T. Hall, 1 South. Rep. 148; Newbold v. Lamb, 2 South. Rep. 449- Churchill v' 
 Speight's Ex'rs, 2 Hayw. 838 ; Rex v. Inh. of Whitchurch, 7 Barnw. &' Cressw ■)73' 
 
CH. X.] And of Presumptions. 607 
 
 Whore the bargain and sale for a year, and the release bear date the same day, the former 
 will be presumed to have been first executed, this course having been necessary to give 
 them validity as a conveyance. And so of any other and like modes of conveyaiice. See 
 j)er Lord Keeper North, in Barker v Keate, 1 Preem. 251 ; and per Lord Mansfield, in 
 Taylor ex dem. Atkyns v. Horde, 1 Burr. 106, 107. So wliere a witness attested only the 
 last sheet of a will, all the sheets were presumed to have been in the room. Bond v. 
 Seawall, 3 Burr. 1773 ; S. C, 1 Bl. Rep. 407. Or if all the witnesses be dead, a regular 
 execution is intended from proof of their handwriting. Hands v. James, 4 Conn. Kep. 
 531 ; Brice v. Smith, Willes, 1 ; Croft v. Pawlet, 2 Str. 1109. So a deed shall be presumed 
 to have been delivered on he day of its date. Breckenridges' v. Todd, 3 Monroe, 54, 55 ; 
 Shep. Touch. 72. And having a seal at the trial, will be presumed to have had one when 
 delivered, though the subscribing witness remember no «eal. Ball v. Taylor, 1 Carr. & 
 Payne, 417. A patent from the state will be presumed to have borne the great seal, though 
 the exemplification be marked " L. S." only. Williams v. Sheldon, 10 Wend. 654. And 
 after a few years' possession and exercise of corporate rights by an ecclesiastical corpo- 
 ration, formed under the New York statute, it will be«presumed that the proper officer 
 (e. g. the rector), was present at the formation, though the certificate of the proceedings 
 omit to mention that circumstance. All Saints Church v. Lovett, 1 Hall's Rep. N. Y. S. 
 C. 191. So a judicial confirmation of a sale made under a decree, by a trustee, was pre- 
 sumed. Shilknecht v. Hastburn's Heirs, 2 Gill. & John. 114. A contract by A. to work 
 for B. ; and another bearing the same date, and having the same subscribing witness, by 
 which B. promised to pay A. a certain sum in a certain way^ were intended the one to 
 form the consideration of the other. Aldridge v. Birney, 7 Monroe, 344, 347. 
 
 14. It has been a matter of much litigation, how far this maxim omnia prdsumuntur rite 
 esse acta, shall prevail in establishing the j urisdiction of a court of magistrate. In England 
 it is not admissible as to the facts which constitute a special and limited jurisdiction. Per 
 
 Holroyd, J., in Rex v. All Saints, 1 Mann. & Ryl. 668, and the cases there cited. Though 
 *611 it is otherwise of courts *having general jurisdiction. Id. In the former case, in 
 
 order that the party may avail himself of the proceeding, he must not only plead, 
 but prove the facts which go to the question of jurisdiction, id. And see Budd v. Jolm- 
 Bon, 5 Litt. Rep. 19 ; also stated supra, ph 9 of this note. But in Massachusetts, there, 
 appearing on the files of the Probate Court a record of assignment of dower regular on 
 its face, the Supreme Court intended that a regular application by the widow was made, 
 or her assent given for that purpose. Tilson v. Thompson, 10 Pick. 359,.363. And in 
 Pennsylvania the maxim was expressly applied to support the summary proof of a will 
 in the County Court of Virginia ; the court saying, " To the act of the County Court in 
 holding jurisdiction of the subject of probate, the maxim omnia, &c., is as applicable as 
 the judicial proceedings of our own state." Bipple v. Ripple, 1 Rawle, 386, 389. In New 
 York, as to these foreign proceedings, which are unknown to the common law, the two 
 latest and prominent fiases appear to conflict. The first was the case of a New Jersey 
 attachment of a vess6)[by a material man ; which was sustained on the presumption that 
 the law of that state warranted the proceeding. The Stamford Steamboat Co. v. Gibbons, 
 9 Wend. 327, 331. The other respected a specific delivery of real estate under an execu- 
 tion, in satisfaction of a judgment of Vermont ; a very common proceeding in New 
 England, which was placed by the Supreme Court upon the ground of a strictly foreign 
 proceeding unknown to the common law, jurisdiction of which must be shown by pleading 
 the local statute, and proving it. Holmes v. Broughton, 10 Wend. 75. But by this and 
 several other cases, it agreed that upon a common-law question, that law shall be pre- 
 sumed to prevail in a neighboring slate until the contrary be shown. Walker v. Maxwell, 
 
 1 Mass. Rep. 103 ; Legg v. Legg, 8 Mass. Rep. 99. This subject, however, belongs more 
 properly to the future head which treats of the mode of proving domestic and foreign 
 judgments and other judicial proceedings. (It will be presumed that a commission has 
 been returned by mail as required by statute and opened by the justice issuing it ; Hall 
 V. Barton, 25 Barb. 274; that arbitrators have acted within the time set foi* their award ; 
 Owen V. Boerum, 23 Id. 187 ; on all the matters submitted ; Ott v. Schroeppel, 1 Seld. 482 ; 
 that the three assessors have acted together, though only two of them have signed the 
 report ; Doughty v. Hope, 3 Denio, 249, 594 ; 1 Comst. 79 ; that the three commissioners 
 of highways vpere present in the laying out of a private i;oad ; 8 Barb. 153 ; Tucker y. 
 Rankin, 15 Id. 471 ; that an act shown to have been done was done at the right time ; 
 Sheldon v. Wright, 7 Barb. 39. But the law will not presume a-fact requisite to confer 
 jurisdiction in a special proceeding; People v. City of Brooklyn, 21 Barb. 484; though 
 there is a presumption in favor of the regularity of the proceedings of a board of officers ; 
 People V. Carpenter, 24 N. Y. 86 ; and in favor of the jurisdiction of the surrogate over 
 the estate of a decedent, after a lapse of many years ; Bolton v. Brewster, 32 Barb. 389.) 
 
 15. Other presumptions are referable to the policy of the law. An instance under this 
 head is the presumption in favor of cross remainders when the land is devised between 
 two persons as tenants in common in tail, and the contrary when between more than two. 
 
 2 Bl. Com. 381. This rule is of course confined to devisees, and is subject to various modi'^ 
 fications and exceptions arising from the particular language of the will. See Perry v. 
 White, Cowp. 777. Phipard v. Mansfield, Cowp. 797, 800; Doe ex dem. Burden v. Bur- 
 
508 Of Presumptive M}idence, [ch. x. 
 
 *612 *est presumption is of the nature of probability ; and there are 
 
 almost infinite shades, from the lightest probability to the highest 
 
 moral certainty. (1) If the circumstantial evidence be such as to afibrd a 
 
 ville, 2 Bast, 47, 48, note ; Holmes v. Meynel, T. Jones, 172 ; S. C, T. Raym. 458, 45.T : 3 
 Roll, Rep. 381 ; 1 Wms. Saund. 185, a, note 6 ; Atherlon v. Pye, 4 T. R. 710, 713 ; Cooper 
 V. Jones, 3 Barn. & Aid. 435, 439 ; Staunton v. Peck, 2 Cox's C. C. 8 ; Watson v. Foxton, 2 
 East, 36, 40 ; Roe v. Clayton, 6 East, 628 ; Doe ex dem. Gorges v. Webb, 1 Taunt. 234 ; 
 Green v. Stephens, 17 Ves 64 ; Comber v. Hill, 3 Str. 969 ; Davenport v. Oldis, 1 Atk. 
 579 ; Dyer v. Dyei;, 19 Ves. 613 ; S. C, 1 Meriv. 214 ; and Jones v. Randall, 1 Jac. & 
 Walk. 100. 
 
 Again : the presumption is, that money borrowed by the hushand, on the security of 
 the wife's real estate, is appropriated solely by him, the money being under his absolute 
 control, in virtue of the power conferred by the marital right. Earl of Kinnoul v. Money, 
 3 Swanst. 208, note. Hence, she and her personal representative have a right, in equity, 
 to demand of him and his representatives, that his estate shall be first applied in dis- 
 charge of the incumbrance, so as to relieve her estate. Neimcewicz v. Gahn, 3 Paige, 
 614; S. C, 11 Wendell, 312; Tate v. Austin, 1 P. Wms. 364; Lord Huntingdon's Case, 2 
 Vern. 437 ; per Lord Hardwicke, in Astley v. Earl Tankerville, 3 15ro. C. C 045 ; Earl of 
 Kinnoul v. Money, 8 Swanst. 208. note a. And see Pocoke v. Lee, 3 Vern. 604 ; and' Clin- 
 ton V. Hooper, 1 Ves. jun. 173. This, however, being but an equity, may be rebutted by 
 another equity* which may be set up by parol proof. Per Lord Hardwicke, in Earl of 
 Kinnoul v. Money, 3 Swanst. 308, 208, note a. As if the money were raised to pay off 
 her debts due dum sola (Lewis v. Nangle, Ambl. 150 ; S. C , 3 P. Wms. 664, note ; Earl 
 of Kinnoul v. Money, 3 Swanst. 202, note; Bagot v. Oughton, 1 P. Wms. 347) ; or for her 
 private use (see per Lord Thurlow, in Clinton v. Hooper, 1 Ves. jnn. 188) ; even though 
 she should afterwards make a present of the money to him. Senib. per Lord Thurlow, 
 in Clinton v. Hooper, 1 Ves. jnn. 188. And so, in general, where the money is raised 
 partly for the use of each. Lewis v. Nangle, Ambl. 150. (Where the wife purchases a 
 chattel on her personal credit, and the husband takes it into his possession and uses it, 
 Ifie title is held to vest in him. Glann v. Ypunglove, 37 Barb. 480 ; for the presumption 
 where he buys, and she unites with him in giving a note for the purchase money. See 
 Yale V. Dedeiwr ; 21 Barb. 386 ; 18 N. Y. 265 ; 31 Barb. 535 ; 82 N. Y. 450.) 
 
 16. In some cases, the mere want of presumption on the one side is a sufficient presump- 
 tion in favor of the other ; for wherever the nature of a subject leaves it perfectly indif- 
 ferent whether a given fact does or does not exist, the party who founds nis Claim or his 
 defence upon the existence of it, must remove that indifference ; and the opposite party 
 may rely upon the single argument that nothing appears in opposition to him ; and that 
 de non apparentilms et rum existentibus eadem est ratio. 2 Ey. Potfi. 329, No. 16, § 14. 
 
 17. W here the existence of one fact so necessarily and absolutt?lj* induces the suppos- 
 ition of another, that if the one is true the other cannot be false, as where connection is 
 inferred from pregnancy, the term presumption cannot bi- legitimately applied ; for the 
 nature of presumption is, that it does not require to be substantiated, but that it may be 
 defeated by positive contradiction, according to the maxim stabitur presumptioni donee 
 probetur in contrarium. Vid. Lofft's Gilb. 303. Tha distinction between presumption 
 and proof is, that the one may be false, but until shown to be so, must be regarded as 
 true ; that the other (the facts upon which it is founded being admitted) cannot be other- 
 wise tlian true. 2 Ev. Poth. 329, No. 16, g 14. 
 
 (1) Note 178. — The civil law speaks of strong presumptions and conjectures ; and again 
 of signs, conjectures &nA presumptions (1 Dom. b. 3, tit. 6, § 4, art. 2 and 3) ; and some 
 writers have attempted a still more certain division as to the force and effect of presump- 
 tive proof. Thus, in Co. Litt. 6 b, and Lofft's Gilbert, 803, we find a division into, I. violent, 
 2. merely probable, and 8. weak and ineondusim presumptions. The latter, it is there said, 
 are light and rash, and weigh nothing in judicial consideration. An instance of the first 
 is put of a man suddenly dead in a room, and another running out in haste with a bloody 
 sword, no other person being in the room. This is a violent presumption that he is the 
 murderer, for the blood, the weapon, the hasty flight, are all necessary concomitants to 
 such a horrid fact. Lofft's Gilb. 310, and the authorities there cited. So, continual and 
 quiet possession to prove a deed. Co. Litt. 6 b. Pr<ibablo presumption, it is said, weighs 
 but little. Co. Litt. 6 b. And the third class not at all. Lofft's Gilb. 803 ; Co. Litt. 6 b. 
 It is evident that all those numerous presumptions which stand for proof till overturned, 
 are of the first class. Of the second class, the books give us very few instances. But it 
 would seem to embrace all those circumstantial proofs, the effect of which is not reducible 
 to rules, and must, therefore, goto a jury in order to be weighed upon the force of the 
 circumstances. And this seems to be more properly denominated circumstantial evidence, 
 of which a late writer has made a head distinct from presumptive evidence. 8 Stark. Ev. 
 478. Instead, however, of momng but little in the language of Lord Coke, it is now 
 allowed, in many instances, to be the most satisfactory species of proof, whether in crimi- 
 nal or civil cases. Per Washington, J., in-United States v. Johns, 1 Wash. C. C. Rep. 
 
CH. X.] And of Presumptions. 509 
 
 fair and reasonable presumption of the fact to be tried, it is to be received 
 and left, to the consideration of the jury, to whom alone it belongs to deter- 
 mine upon the precise force and effect of the circumstances proved, 
 *613 and whether they are *sufficiently satisfactory and convincing to 
 warrant them in finding the fact in issue. (1) 
 Presumptive evidence must obviously be as admissible in criminal prose- 
 cutions as in civil cases ; for whether the proceeding be of a civil or criminal 
 nature, the modes of reasoning, and of drawing conclusions from facts, must 
 necessarily be the same. When direct evidence of facts cannot be supplied, 
 
 372 , 3 Stark. Ev. 479. It is in its own nature capable of producing the higliest degree of 
 moral certainty. 3 Stark. Ev. 479, 480. And see the next note. The third class seems 
 to be the mere conjecture of the civil law. As if one has threatened another with death, 
 who is shortly after found dead by violence. Without other proof, a conviction cannot 
 follow. Dom b. 3, tit. 6, § 4, art. 4. So of a tutor (guardian) who begins his ofiHce 
 without any estate of his own ; but in the course, of his administration becomes rich. 
 The ward cannot infer from this that the tutor has enriched himself by despoiling the 
 trust estate, if the account be otherwise true. For the tutor may have acquired his goods 
 in many other ways. 1 Dom. b. 3, tit. 6, § 4, art. 12 ; 3 Ev. Poth. 345, No. 16, § 14 ; Id. 
 338 ; Goodtitle v. Duke of Chandos, 3 Burr. 1065. Yet, " the degrees of probability are 
 very extensive ; and a considerable latitude must be allowed to the judgment, applied to 
 the circumstances of each particular question, which, as it cannot be previously defined, 
 is from its very nature, subject to be atfected by the variety of individual sentiments." 
 2 Ev. Poth. 339, No. 16. § 14. See Hart v. Newland, 3 Hawks, 132. 133. That a man 
 had conspired to commit a murder afterwards perpetrated, was holden not enough upon 
 which to presume his participation. Otherwise, where he, after so conspiring, was pres- 
 ent. In such case, he shall be presumed a participant, unless he show that he was present 
 for an innocent purpose. Commonwealth v. Knapp, 9 Pick. 496. 
 
 (1) 2 H. Bl. 397. 
 
 Note 179. — This is what the civil law means by the discretion of the judge. "Thus 
 when one thing is signified by another, we presume the truth of that which is signified, 
 by the certainty of that which signifies it. And it is out of these different principles that 
 signs, conjectures and presumptions are formed ; concerning which there can be no cer- 
 tain rules laid down ; but in every case it must depend on the prudence of the judge, to 
 discern whether the presumption be well or ill grounded, and what effect it may have 
 to serve as a proof" 1 Dom. b. 3, tit. 6, § 4, art. 8. 
 
 Yet this is a discretion governed, in respect to many things, by rules, as will appear 
 throughout the doctrine of presumptive evidence. " And it is on the prudence of the 
 judge that the use and application of these rules depend, according to the quality of 
 the facts and circumstances." 1 Dom. b. 3, tit. 6, § 4, art. 8. 
 
 " What circumstances will amount to proof, can never be matter of general definition. 
 The legal test is the sufficiency of the evidence to satisfy the understanding and conscience 
 of the jury. On the one hand, absolute, metaphysical and demonstrative certainty, is not 
 essential to proof by circumstances. It is suificient if they produce moral certainty, to 
 the exclusion of every reasonable doubt. Even direct and positive testimony does not 
 afford grounds of belief of a higher and superior nature." 8 Stark. Ev. 514, and aeepost. 
 
 A juror ought not to condemn till reiisonable doubt of guilt is excluded from his mind ; 
 that is to say, unless he be so convinced by the evidence that he would venture to act 
 upon that conviction in matters of the highest concern and importance to his own inter- 
 est. And in no case, as it seems, ought the force of circumstantial evidence where it is 
 adequate to conviction, to be inferior to that which is derived from the 'testimony of a 
 single witness, the lowest degree of direct evidence. 3 Stark. Ev. 514, and see post. 
 
 " The rule, even in a capital case is, that should the circumstances be sufficient to con- 
 vince the mind and remove every rational doubt, the jury is bound to place as much 
 reliance on such circumstances as on direct and positive proof; for facts and circumstances 
 cannot lie." Per Livingston, J., U. S. C. C, New York, Sept. 1817, in Jacobson's Case, 3 
 C. H. Record, 143. And see Judge Washington's observations to the like effect in United 
 States v. Johns, 1 Wash. C. C. Rep. 372. 
 
 No court has a right to direct a jury to disregard presumptive proof, or to view it under 
 a different aspect from that in which it is actually presented. They are to decide on its 
 proper influence, and on the order and manner in which they weigh it ; and any inter- 
 ference with this right would be an invasion of their privilege. Crane v. Astor, 6 Pet 598. 
 
 But presumptive or circumstantial proof of which the jury are the exclusive judges, 
 should be carefully distinguished from what the law calls prima fade evidence. The 
 latter is, in judgment of law, sufficient to establish the fact ; and if not rebutted, remains 
 sufficient. And, therefore, if the jury disregard it, their verdict may be set aside. Kelly 
 V. Jackson ex dem. Morris, 6 Pet. 633, 681, 633. 
 
610 Of Presumptiije Moidence, [ch. x. 
 
 as must continually happen in some of the worst species of crimes, reasoil- 
 able minds will necessarily form their judgment on circumstances, and act 
 
 on the probabilities of the case. " As mathematical or absolute cer- 
 *614 tainty,"(l) to use the words of Lord Mansfield in the Douglas *Ca;use, 
 
 " is seldom to be attained in human affairs, reason and public utility 
 require that judges, and all mankind, in forming their opinion of the truth 
 of facts, should be regulated by the superior number of probabilities on the 
 one side or the other, whether the amount of these probabilities be expressed 
 in words and arguments, or by figures and numbers." The principal differ- 
 ence to be remarked between civil and criminal cases with reference to the 
 modes of proof by direct or circumstantial evidence, is, that in the former, 
 where civil rights are ascertained, a less degree of probability may be safely 
 adopted as a ground of judginent, than in the latter case, which affects lif^ 
 and liberty. In criminal prosecutions, it has been observed, the circum- 
 stantial evidence should be such as to produce nearly the same degree of 
 certainty as that which arises from direct testimony, and to exclude a 
 rational probability of innocence, (2) Doubtless the circumstances ought to 
 be of such a nature as not to be reasonably accounted for on the supposition 
 of the prisoner's innocence, but perfectly reconcilable with the supposition of 
 the prisoner's guilt. (3) 
 
 (1) Cited in Andrew Stuart's Third Letter to Lord Mansfield. And see 16 Pari. Hist- 
 518 — 533. 
 
 (2) Burnet on the Criminal Law of Scotland, p. 533. See, also, the masterly summing 
 up of the lord chief justice in the Court of Kijag's Bench in Ireland, on the trial of Gra- 
 ham, Forbes, and others, for a conspiracy. Printed report, p. 350. 
 
 (3) Note 180. — Various other rules for determining the weight and effect of this kind 
 of testimony, occur in the books. 
 
 Each of the circumstances essential to the conclusion should be fully established, in 
 the same manner and to the same extent as if the whole issue rested upon it. The proof 
 is more cogent where the circumstances are numerous, and derived from many different 
 and independent sources, than where they are few and depend on the credit of one or two. 
 Where they all rest on a single witness, the question is both whether he be faith- worthy, 
 and if so, whether the inference be correct ; thus frequently reducing the evidence below 
 the lowest degree of direct proof. The number of circumstances stated by the witness 
 does not add. to the force of his testimony, unless they admit of contradiction if false. 
 But the number of circumstances, coming from different sources, repel the suspicion of 
 fraud ; andjaliypothesis which consists with and reconciles many circumstances, is more 
 likely to be true than one which depends on but few. The simulation or fabrication of 
 ^acts intended by a party to brea^ the chain of. circumstantial proof, arp exposed to great 
 danger of detection. 3 Starkie's Bv. 503 to 506. 
 
 ("The logic upon which eircumstailtial evidence is basei^ is this: We know from our 
 experience that, certain things are usual concomitants of each other. In seeking to estab- 
 lish the existence of one, where the direct proof is deficient or uncertain, we prove the 
 certain existence of the correlative facts, and thus establish with more or less certainty, 
 according to the nature of the case, the reality of the principal fact. But the reasoning is 
 a perfect fallacy if the defect of proof which renders it necessary to call for the aid of the 
 collateral circumstances, equally attaches, to such collateral circuinstances. It is like the 
 blind leading the blind." Per Deuio, Ch. J., in the People v. Kennedy, 33 N. Y. Rep. 141. 
 In other words, the collateral facts must be clearly proved, and the defendant must be 
 connected with them, before any inference can be drawn from them. But when the fact 
 constituting the body of the crime is clearly proved, as the act of killing by the defend-, 
 ant, on an indictment for the murder of a policeman, it may be shown by circumstances 
 connected with the time and place of the killing, that the prisoner knew or did not know 
 the official character of the deceased. Yates y. The People, 32 N. Y. Rep. 509.) 
 
 "The force and tendency of circumstantial evidence to produce conviction and belief, 
 depend also, on a consideration of the coincidence of circumstances with the fact inferred, 
 that is, with the hypothem; and the adequacy of such coincidences to exclude every other 
 hypothesis." Plunket's Case, 8 C!. H. Rec. 137 ; 3 Stark. Ev. 481 ; Atwood's Case, 4 C. H. 
 Rec. 91. The facts mu^t not only be consistent with the hypothesis— for this leaves it 
 indifferent whether the hypothesis be true or false ; neither is a preponderance of proba- 
 bility enough to make a presumption— but a presumption can only be applied wlien the 
 circumstances are such as to render the opposite hypothesis improbable. 3 Stark. Ev. 506 
 to 510 ; 3 Ev. Poth. 339, No. 16, § 14. If the latter be rendered exceedingly remote and 
 Improbable, and morally, though not absolutely impossible, the hypothesis is established 
 
CH. X.] And of I^esmnptions. 511 
 
 as morally true. 3 Stark. Bv. 483, 509. That A. entered a room whence a watch was 
 found gone on his departure, no agent but A. in the interval having access, would demon- 
 stratively exclude the supposition of the removal by another, and be conclusive against 
 A. 3 Stark. Ev. 483. And see the instance of death and the bloody sword, ante, note 
 178. So the nature and degree of coincidence may often exclude reasonable, doubt, and 
 generate full moral conviction and belief, though it be not of an absolute and demonstrar 
 tivo nature. The probability of the hypothesis is proportioned to the nature, extent and 
 number of the coincidences. 3 Stark. Ev. 483. In the case of A. being found in 
 *615 possession of stolen goods, 'recently after the larceny of them ; and refusing to 
 render any account of them, although the coincidences with the hypothesis of his 
 being the thief be but two, viz : his possession and omission to account for it, yet the lat- 
 ter excludes the supposition of an honest intention. 3 Stark. Ev. 483, note y. 
 
 These connections or coincidences are of a natural or mechanical character, being objects 
 of sense, or of a moral nature. An instance of the first class are proximity in point of time 
 and space, and other circumstances showing means and opportunity. So tlie poBsession 
 of the stolen goods in case of a robbery, burglary or larceny ; or, in cases of homicide, 
 stains of blood upon the person, possession of deadly weapons recently used, and marks of 
 conflict and violence. So, in burglary, the broken blade of a penknife by whicli the win- 
 dow was opened being left in the wood, and found to correspond with a broken knife in 
 the prisoner's pocket. So, again, of homicide, by a pistol shot, the wadding being part of 
 a letter belonging to the' prisoner, and found upon liis person. So, of a correspondence 
 between a patch on the prisoner's knee with impressions on the soil near where the mur- 
 dered body lay. So, where the prisoner was struck on the face by the party robbed, with 
 a key, the wards of which correspond with an iiiipression on his face, and the like. 3 
 Stark. Ev. 485 to 487 and 501. note. So, in a case of larceny, of the perfect coincidence of 
 several threads, between cloth found in possession of a prisoner, and cloth in a loom from 
 which it had been cut. 8 Stark. Ev. 497, note o. In a recent case of arson, where a iire 
 was discovered and extinguished in a grocer's cellar window, beneath another building,, 
 the crime being charged on the grocer, it was found that one of the pine splinters used to 
 kindle the fire, fitted exactly to a larger pine stick lying in another room of the prisoner's 
 cellar, and to which stick another splinter lying by his stove fitted in the same way. 
 People V. Gilchrist, Montgomery Oyer and 'Terminer, November, 1831, before Cowen^ 
 Circ. Judge, MS. 
 
 Again : certain laws of moral conduct are said to operate almost as uniformly as the 
 mechanical laws of the material world, thus affording us certain axioms in the theory of 
 evidence. 3 Stark. Ev. 487. 
 
 One is, that a man will do that which is for his obvious advantage. Thus, if a party 
 be pressed by circumstantial proof, having it obviously in his power to destroy its appar- 
 ent force if unfounded, by testimony on his own side, but he omit to do so, the very 
 omission supplies a presumption against him (3 Stark. Ev. 487, 488) ; or. as it is expressed 
 by another writer, " Imperfect proofs of which the accused, if innocent, might clear him- 
 self become perfect." Beccaria, ch. 14. And see 2 Ev. Potli. No. 16, § 14, p. 340 ; per: 
 Livingston, J., in Jacobson's Case, U. S. C. C, Sept. 1817, 2 Cit. H. Rec. 143. (In Gordon 
 V. The People, a case of circumstantial evidence, the justice presiding on the trial charged 
 th& j ury in these words : "You perceive this is a case controlled by circumstances. If 
 the prisoner was not at West Albany on the day of that transaction, he has had abundant 
 opportunity to show it. He might, in that case, have called witnesses to prove he was 
 not there, but elsewhere, on that day, but he has not done it. He has had abundant 
 opportunity, also, of shovring where he got that money, but he has not done it. Circum- 
 stantial evidence of this sort, when left unexplained, if in the power of the prisoner to 
 explain, if not true, becomes ofaconclusivecharacter." * * " What was before not absolute, 
 then ripens into certainty." But the Court of Appeals held that the omission of the 
 prisoner to show where he was on the day of the homicide, or where he got the money, 
 though strong presumptive evidence against him was not in law conclusive of the facts in 
 dispute. 33 N. Y. 501. Where the prisoner is pressed by the force of accumulated cir- 
 cumstances, as in this case of Gordon, the absence of such evidence, especially when it 
 appears to be in the power of the prisoner to furnish it, creates a strong presumption of 
 his guilt, a strong inference against him, and is a circumstance greatly corroborative of the 
 trutli of the evidence given upon the other side. In a doubtful case, it would justify the 
 jury in resolving the doubt against him. To this elfect are the cases of The People v. 
 McWIiorter, 4 Barb. 438 ; The People v. Bodine, 1 Denio, 281 ; The People v. Dyle, 21 N. 
 Y. 578 ; Braithwaite v. Coleman, 4 Nev. & Man. 654.) This is the main foundation for 
 calling on the possessor of property recently stolen, to account for the manner in which 
 he came by it. In case of a very recent larceny, this is always supposed to be easy. So 
 of marks of blood and violence on the dress and person of the accused, the possession of 
 concealed weapons and the like ; if he omit to explain the cause, he subjects himself to 
 the worst construction. 3 Stark. Ev. 487,488. And yet, if it appear that the only explan- 
 atory testimony is of a suspicions character, as that the witness whose absence is insisted 
 on be interested in the question against him, this takes away the force of the presump- 
 tion. Blatch V. Archer, Cowp. 65, per Ld. Mansfield. 
 
512 Of Presumptive M}idehce, [ch. x. 
 
 So, if a party having conclueive evidBnce in his power, resort to weaker proof, as where 
 the lessors of the plaintiff said they had a deed in court to one of them, but gave oral 
 evidence of it and would not produce it ; Lord Mansfield said he would intend that if 
 they had produced the deed, it would have shown that neither of them had any title. 
 Eoe V. Harvey, 4 Burr. 2484, 3487. Again : orrmia prmmimuntiirr contra spoliatorem. 
 Vid. ante, note 177. So of the fabrication or corruption of evidence, as the forgery of let- 
 ters, subornation of perjury, &c. 2 Bv. Poth. 337, and note a there. No. 16, § 14 ; 3 Stark. 
 Bv. 490, 491 ; 1 Macnally, 580 : Lofft's Gilb. 898. 
 
 From the moral connection between conduct and motive, jurors are often enabled to 
 
 infer motives from acts, and e eonnerso. Although, in criminal cases, mere motive is very 
 
 inconelusive in establishing the corpus delicti, yet, that being established aliunde, the 
 
 motive becomes fair matter of consideration. 2 C. H. Bee. 143, per Livingston, J. So, 
 
 the total absence of apparent motive must always operate strongly as a circumsiance in 
 
 ' favor of the accused ; a fortiori where he had motives adverse to the commission of the 
 
 imputed crime. In a case of conflicting motives, as of infanticide,'where natural feeling 
 
 opposes the desire to avoid detection and shame, the former are entitled to high CDnsider- 
 
 ation. 3 Starkie's Bv. 491, 492, and note n. So, presum])tions of great importance 
 
 *616 may arise out of a connection between the acts of a party and his intentions, *con- 
 
 sciousness and knowledge. He must be taken t,o intend the natural and immediate 
 
 consequences of his own acts. This rule is mainly applied in detecting intention and 
 
 malice. 3 Stark. Bv. 493 ; 4 Id. 739, 740 ; 3 M. & S. 15, per Lord'EUenborough ; 1 Hale's 
 
 P. 0. 398; East's P. C. 513, 514; 4 Starkie's Bv: 739, 906; Kelying, 126; Holt's Rep. 484; 
 
 Cro. Car. 131 ; W. John. 198 ; 1 Hale's P. C. 454 ; Palm. 485 ; Ante, note 177. 
 
 So, we connect the conduct of the criminal with the supposition of his guilt ; as his pro- 
 viding poison or instruments of violence in a* secret manner, the subsequent concealment 
 of .them, attempts to divert the CQurse of inquiry or prevent investigaiion, and other 
 singular measures for security dictated by the restless anxiety of a mind conscious of guilt. 
 3 Stark. Ev. 493, 493. 
 
 A singular combination of both the above, classes of circumstances was exhibited in 
 How's Case, convicted of murder (before Rochester, Circ. Judge, Allegany Oyer and 
 Terminer, February, 1834, 3 Wheel. Cr. Cas. 413) ; a summary of which circumstances 
 are given Id. pages 411 and 412. 
 
 If any of the established circumstances be wholly repugnant to the hypothesis, it cannot 
 be true, notwithstanding the degree and extent of coincidence in other respects. 3 Stark. 
 Ev. 483, 505 ; 2 Ev. Poth. 340, No. 16, S 14. Yet, when a series of facts distinctly and 
 unequivocally proved, manifestly tends to one conclusion, and another fact is proposed in 
 contradiction to that conclusion, the mere inability to account for such opposite fact is not 
 BufiScient to destroy the inference deduced from the others ; but the positive inconsistency 
 should be fully shown. So, where the facts to found a conclusion are fully proved, the 
 oiposite facts may not destroy the conclusion, where such facts are left to probability or 
 inference, unless, indeed, they account for the facts in support of the conclusion, for a con- 
 clusion from certain facts is not sufficiently encountered by another from uncertain facts. 
 2 Bv. Poth. 341, 343, No. 16, § 14. And where facts, tending to a conclusion, agree in 
 their leading features, a slight incidental inconsistency ought not to affect the case. Thus, 
 where A., in company with B., had his pocket picked of three guineas, and B. boasted that 
 he had picked A.'s pocket oi four, the substance is that he picked A.'s pocket, and an 
 accidental inaccuracy of A. or B. as to the number, would not weaken the case. 2 Ev. 
 Poth. 343, No. 16, § 14, and note a. Sometimes circumstances may be so strong as to 
 discredit positive proof to the contrary . e. g. proof of an oliM, which is rendered very sus- 
 picious by a powerful chain of circumstances going to establish the guilt of the accused. 
 8 Bv. Poth. 342, No. 16. § 14. 
 
 The force of concurring circumstances often depends upon the compound probabilities, 
 both that the concurrence is not casual and that another hypothesis, unsupported by cir- 
 cumstances, is not true. Thus, where, the concurring circumstances clearly point out the 
 offender, this proof is strengthened by the total absence of any trace or vestige leading to 
 another agent. 8 Stark. Ev. 494, 495. 
 
 We have before remarked, in this note, that circumstantial proof is not of a conclusive 
 nature in respect to the hypothesis proposttd, unless it also exclude every other inconrfs- 
 tent hypothesis. Thus, a man is robbed in the market of a purse containing one penny, 
 two sixpences, three shillings, four half crowns, five crowns, six half sovereigns and seven 
 sovereigns ; and a person soon after apprehended in the same market is found in posses- 
 sion of the same remarkable combination of coin, and no other; yet this coincidence is 
 per se of a definite and inconclusive nature ( 3 Stark. Ev. 497, note o), though there be a 
 high probability of identity ; and other slight circumstances might Vfarraut conviction. 
 Id. 501. So of the threat followed by death, and the estate acquired by the tutor, wliich 
 are mentioned, ante, note 178. Now, although it seems to have been supposed by Bec- 
 caria (ch. 14), that such imperfect proofs may, by being multiplied, become perfect and 
 conclusive ; yet Mr. Starkie thinks it is generally otherwise in criminal cases. But he 
 admits that the force of circumstances of a conclusive nature may be greatly confirmed 
 by a combination with other independent circumstances, though the latter be, in them- 
 
<3H. I.] Arid of Presumptions. 513 
 
 *617 *Iti some instances, undoubtedly, circumstantial evidence has been 
 found to produce a much stronger assurance of the prisoner's guilt 
 than could have been produced by the most direct and positive testimony. 
 As a general principle, however, it is certainly true, that ■ positive evidence 
 of a fact from credible eye-witnesses is the most satisfactory that can be 
 produced, and the universal feeling of mankind leans to this species of evi- 
 dence in preference to that which is merely circumstantial. Chief Baron 
 Gilbert, therefore, considers the former a higher species of proof. He says, 
 "when the fact itself cannot be proved, that which comes nearest to the 
 proof of the fact is the proof of the circumstances which necessarily or usually 
 attend such facts, and which are called presumptions and not proofs, for they 
 stand instead of the proofs of the factuntil the contrary be proved." ( 1 ) 
 **18 *There are presumptions of law as well as presumptions of fact. 
 Some presumptions of law are considered so strong and conclusive, 
 as not to admit of contrary proof ; but there are fewer instances of this 
 strictness in the present day than formerly. That indocence is to be pre- 
 sumed, till the contrary is proved, may be called a presumption of law, 
 
 selves, of an imperfect and inconclusive nature. And he seems also to concede that cases 
 may be put even in criminal cases, coming up to the combination of imperfect proofs men- 
 tioned by Beccaria. 1 Stark. Ev. 497 to 501, and note o. 
 
 The nature of the crime ought not at all to influence the measure of the proof, after the 
 corpus delicti is established, that is, the commission of the crime, by some one. Till that 
 is done, or where any doubt exists as to the corpus delicti, the proof should be the stronger 
 in proportion to the enormity of the crime impOted ; for the more repugnant it is to the 
 feelings of human nature, the more improbable it is that it has been perpetrated at all. 
 The perpetration being established, then the atrocity of the crime, in the abstract, raises 
 no probability either for or against the accused, although under peculiar circumstances it 
 may. 3 Stark. Ev. 480, note «, and see post. Thus, if the accused appear to be of fair 
 character, and correct general deportment, 'the probability of greit moral depravity is 
 more slight in this case than in one of a, different character and conduct. Other circum- 
 stances are continually occurring in our criminal courts; where the like argument is 
 admitted, " In cases of wanton cruelty, the presumption is always against the accuser ; 
 for no man is cruel without some interest — without some motive of fear or hate." Bec- 
 caria, eh. 13. ,1 
 
 The European continental writers on penal law , adopt a different principle. " Behold 
 their inhuman maxim dictated by the most cruel imbecility : In atroeissimis, leuiores con- 
 jeeturce siiffidunt, et licet judici jitra transgredi. Let us translate this sentence, that 
 mankind may see one of the many unreasonable principles to which they aft ignorantly 
 subject. In the most atrocious crimes, the slightest conjectures are sufficient ; and ihe judge 
 is oMowed to exceed the limits of the la/w." Beccaria, ch. 13. Evans says considerable atten- 
 tion ought to be paid to the consequences of the decision, and to the effect of error as it 
 may be committed on one side or the other ; but this cftution ought not to be suffered to 
 degenerate into excessive timidity. 3 Bt. Poth. 339, No. 16, § 14. 
 
 (1) Gilb. Ev. 142. 
 
 Note 181. — And the probability that the inference rests upon sure grounds, is in general 
 weakened by the number of fcircumstances essential to the ^roof ; for the greater the num- 
 ber of 'such essential cihsumstances, the greater latitude'for mistake or deception. 3 Stark. 
 Ev. 496. And ^here an inference was to be drawn uponan inference, the Supreme Court 
 of North Carolina said that the main fact was, therefore, inadmissible for irrelevancy. 
 The case was deceit for selling a consumptive negro. The defense was, that he was a 
 runaway; and while lurking in the plaintiflTs neighborhood previous to the sale, the 
 plaintiff's wife had relieved him ■vrith food, whence it was sought to infer, first, that she 
 knew of the disease ; awl secondly, that the husband knew it, and so could not be deceived. 
 The court denied the latter inference, even if her knowledge were established directly 
 (see ante, note, 175), but mainly because an inference was sought to be raised upon an 
 inference. Hart v. Newland, 3 Hawks. 132, 123, 184.' The distinction is somewhat novel ; 
 tad perhaps will hardly admit of anything like universal application. See People v. 
 Kennedy, 33 N. T. 141. 
 
 If the facts, A. B. C. D. be so essential tb the particular ihference thai the failure of any 
 one would' destroy the inference altogether, they are dependent facts. But if, notwith- 
 standing the failure of one or More, 'the rest would still afford the game inference, they 
 s,re independent. And where each of a number of independent circumstances, or combina- 
 tions of circumstances, tends to the same conclusion, the probability of the truth of the 
 fact is greatly increased in proportion to the number of those circumstances. 8 Stark. Ev. 
 495. 496 ; 8 Ev. Poth. 343, No. 16, § 14. 
 
 Vol, L 65 
 
514 Of Matters Judicially Noticed. [ch. x. 
 
 founded on th^ universal principles of justice. That a child born during 
 marriage shall be presumed to be legitimate, is another presumption of the 
 same description. That grants and deeds are to be presumed in support of 
 longjundisturbed possession, is also a presumption in law, founded on prin- 
 ciples of public policy and convenience. 
 
 Closely connected with the doctrine of presumptive evidence, or, perhaps, 
 rather as introductory to it, may be considered those subjects of which the 
 courts of law take what is termed judicial notice, and which are not required 
 to be proved.' 
 
 The consideration of these last mentioned subjects will form the substance 
 of the first section of the present chapter ; the presumptions of ordinary 
 occurrence, made by courts and juries, will be considered in the second sec- 
 tion ; in the third, the relevancy of this kind of evidence will be discussed 
 with reference to the points in issue to which it ought to be dii-ectedj and 
 the fourth section will be devoted to the question, how far the production of 
 evidence is affected by the admissions of parties made in the course of the 
 pleadings in a cause. 
 
 SECTION I. 
 
 Of Matters Judicially Noticed. 
 
 The principle upon which certain matters are judicially noticed, without 
 any proof being required in respect to them, appears to be partly, that they 
 are of such general and public notoriety that every subject of the realm 
 may fairly be presumed to be acquainted with them ; and partly, that the 
 matters so noticed are generally quite collateral to, and unconnected with 
 the point in issue, and are of such a kind that there is no risk in dispensing 
 with the strict formal proof, whereas, in requiring it there might be great 
 inconvenience, by reason of the expense, or the difficulties in procuring it. 
 
 Matters of Government. All public matters which affect the goT- 
 *619 ernment will *be judicially recognized ;(l) such as the time of the 
 
 accession or demise of the sovereign, the correspondence of the year 
 of any particular reign with the year of our Lord, (2) the prerogatives of 
 the crown, and the privileges of the royal palaces. (3) In like manner, the 
 courts will take judicial notice of the great and privy seals,(4) and also, as 
 it appears, of the sign manual. (5) 
 
 The courts will also notice the London Gazette., without proof that it was 
 
 If some facts tend to the c-inclusion, and others are ambiguous, the former may be used 
 not only to maintain the conclusion, but give a corresponding exposition to the latter. 
 And sometimes, if all the facts be equivocal, when taken separately, their union may 
 lead to a clear and distinct conclusion, especially where this conclusion is unopposed by 
 other facts. 3 Ev. Poth. 343, No. 16, § 14. 
 
 (1) See Taylor v. Barclay, 3 Sim. 231. 
 
 (2) Holman v. Burrow, 2, Ld. Raym. 79^, 794; S. C, Salk. 658; Henry v. Cole, 2 Ld. 
 Eaym. 811 ; S. C. 7 Mod. 108 ; R. v. Pringle, 3 Mo. & R. 276. 
 
 (3) Elderton's Case, 2 Ld. Raym. 978, 980 ; S. C, 3 Salk. 294. See also Winter v. Miles, 
 1 Gamp. 475, n. ; S. 0., 10 Bast, 578 ; Attorney-General v. Donaldson, 10 M. & W. 117. 
 
 (4) See Lord Melville's Case, 29 How.. St. Tr. 706; Y. B. 24 Ed. 3. 23, cit. 2 Sid. 146. 
 (The court will take notice of the public seal of a foreign state; it proves itself; Lincoln 
 V. Battelle, 6 Wend, 475, 484 ; so does the seal of a fpreign territory, Upper Canada ; 
 Lazier v. Westcott, 26 N. Y. 146 ; so does a notary's seal ; Bank of Rochester v. Gray, % 
 Hill, 327. The public acts, records and judicial proceedings of sister states are proved in 
 the manner prescribed by act of congress. U, S. Con. art. 4, § 1 ; see note 412, vol. 3. 
 And the judg?gent c^ a court rendered in another state is conclusive between the parties 
 on the questions litigated. Dobson v, Pearce, 2 Kern. 156. Ae to what seals are held to 
 prove themselves, see note 373, vol. 3, and as to what the law considers a seal, see note 423.) 
 
 (5) B. V. Miller, 2 W. Bl. 797 ; S. C, 1 Lea. C. C. 74 ; R. v. Gully. 1 Lea. C. C. 98. Sea 
 also Lord Melville's Case, 29 How. St. Tr. 706. 
 
BBC. lJ Of Matters Judicially Noticed. 515 
 
 bolight at the queen's printers, or other proof of the place whence it came.(l) 
 It seems that judicial notice will be taken of royal proclamations as being 
 acts of state; (2) but not of orders of council. (3) ' 
 
 *620 *By the annual Mutiny Acts, (4), the articles of war, in the land and 
 marine service, are required to be judicially noticed. (5) But this 
 does not extend to the book called " Rules and Regulations for the Govern- 
 ment of the Army."(6) 
 
 Upon the same principle, the courts will take judicial notice of the com- 
 mencement of the sessions, prorogations, and dissolutions of Parliament, 
 and of the place where any particular Parliament sat. (7) They will also 
 notice the customs, privileges and proceedings of Parliament, and of each 
 branch of the legislature ;(8) but not the journals of either house, as not 
 being records of Parliament. (9) Nor will they take judicial notice that a 
 party to the cause is a member of the legislature — as in the Case of an 
 Irish Peer. (10) 
 
 (1) B. V. Forsyth, E. & K. 1274. Vide post. Vol. II, Of public writingi, notjvdmal. 
 
 (3) Per Treby, G. J., in Wells v. Williams, 1 Ld. Raym. 383 ; S. C, 1 Salk. 46 ; Lutw. 
 35. See also per Holt, C. J., in Dupuys v. Shepherd, 13 Mod. 316 ; E. v. Oulton, 4 M. & 
 S. 533. 
 
 It would appear from the marginal note to Van Omeron v. Dowick (3 Camp. 44), that a 
 di^rent doctrine had been laid down by Lord EUenborongh, C. J., in that case. The 
 marginal note is as follows : " A judge at Nisi Prius will not take judicial notice of the 
 king's proclamationB." And this has been incorporated into most modem treatises. But 
 upon examination it will be seen that this note is not borne out by the case itself. It was 
 an action upon a policy of insurance against the owners of a ship, on a bill of lading, 
 signed by their captain, for two cases of cutlasses to be carried from England to Surinam. 
 One point of the defense set up was, that cutlasses were contraband of war, for the pur- 
 pose of showing that the contract was illegal, and would not support an action. The 
 report then states, " it turned out, that by 83 Geo. Ill, c. 3, the king is only authorized to 
 prohibit the exportation of implements of war by proclamation ; and the defendant not 
 being prepared with the Omzette containing the proclamation for this purpose, the plaintiff 
 had a verdict." The meaning of this seems to be — not that the judge would not take 
 judicial notice of the proclamation — but merely that he required some evidence to satisfy 
 his own mind as to the contents of the alleged proclamation. When it is said that the 
 court will take judicial notice of any fact, the meaning is^that such facts need not be 
 proved in the ordinary manner ; in trials at law, for inatante, it is not to be laid before 
 the jury ; but in all such cases the judge may require something in the nature of evidence 
 to bring the fact under his immediate knowledge ; as he may refer to the statute-book, to 
 ascertain the enactments of any particular statute. In the ease under consideration, all 
 that Lord EHenborough seems to have required was the production of 1*e Gazette : yet 
 it has just been seen, that of the Gazette itself judicial notice is taken. See also R. v. 
 Withers, infra. 
 
 By the 8 & 9 Viet. c. 113, § 3, all copies of royal proclamations, purporting to be printed 
 by the printers to the crown, shall be admitted as evidence thereof by all courts, &c., 
 without any proof being given that such copies were so printed. 
 
 (The United States courts will take notice of the persons who preside over the different 
 offices of government, such as the patent officer, so that their appointment to the office 
 need not be shown in proving their official acts. York & Md. Line E. Co. v. Winans, 17 
 How. U. S. 30.) 
 
 (3) 6 Vin. Abr. 490 ; Att.-Gen. v. Theakstone, 8 Pri. 89. 
 
 (4J See 11 Vict. c. 11, § 1, and c. 15, § 1. 
 
 (5) But the court will require the production of a copy printed by the king's printer. 
 R. V. Withers, 1 East P. C. 360 ; S. C, cit. by Buller, J., in E. v. Holt. 5 T. E. ^6. 
 
 (8) Bradley v. Arthur, 4 B. & C. 393, 304. 
 
 (7) B. V, WUde, 1 Lev. 396 ; S. C„ 3 Keb. 686. See also 1 Doug. 67, n. ; Birt v. Roth- 
 well, 1 Lord Raym. 310, 343. ^ 
 
 (8) Lake v. King, 1 Saund. 131 a; Astley v. Younge, 3 Burr. 811. Bee also Stockdale 
 V. Hansard, THi. & P. 731 ; S. C, 9 A. & E. 1 . Caae of the Sheriff of Middlesex, 11 A. & E. 
 273 ; Cassidy v. Steuart, 3 M. & G. 437. 
 
 (9) R. V. KnoUys, Lord Raym. 10, 15. See also Hob. 110, 111. 
 
 By the 8 & 9 Vict. c. 113, § 3, all copies of the Journals of either house of P&rliament, 
 purporting to be printed by the printers to either house, shall be admitted as evidence 
 thereof by all courts, &c., without any proof being given that such copies were so printed. 
 
 (10) Nugent (Lord) v. Harecourt, 3 Dowl. P. C, 578. See also Hunter v. Deloraine (Lord), 
 Loffl:,49. 
 
516 Of Matters Judicially Noticed. [ch. x. 
 
 "With reference also to foreign countries^ the courts vdll take judicial <Jog- 
 nizance of the existence of a fpreign state^ which has been recognized by 
 our own government, (1) but not otherwise. (2). 
 
 They will also notice the existence of a war between our own country 
 and another state, where such war has been recognized in acts of Parlia- 
 ment, or royal proclamations, (3) But the existence of a war between 
 foreign states will not be so noticed. (4) 
 
 Public statutes. In matters relating to the administration 6f the law, the 
 judges are bound to take judicial notice of all public statutes, and 
 *621 of all facts therein *recited.(5) They are also bound to take judicial 
 notice of all common-law rights and duties, and of general customs, (6) 
 such as the custom of merchants, where it has Taeen incorporated with the 
 law of the land;(7) the customs of gavelkind and borough English ;(8) but 
 not of any local customs, such as the customs of a particular manor, (9) or 
 the customs of London, except such as have been certified by the recorder 
 to either of the superior courts of record. (10) 
 
 They will also take notice that the common law of England extends to 
 Ireland. (11) 
 
 (1) Taylor V.Barclay, 2 Sim. 231. 
 
 (2) Grierson v. Eyre, 9 Ves. 347. " The existence of unacknowledged states must be 
 proved by evidence. The proof necessary to establish the fact of the existence of such 
 states, is that they are associations formed for mutual defense, who acknowledge no other 
 authority but that of their own government, observe the rules of justice to the subjectB 
 of other states, live generally under their own laws, and maintain their independence by 
 their own force." Per Best, C. J., in Yrissari v. Clement, 3 Bing. 438 ; S. C, 2 C. & P. 
 233, 335. See also Donaldson v. Thompson, 1 Camp. 439 ; Blackburn v. Thompson, 3 
 Id. 66. 
 
 (3) R. V. De Berenger, 3 M. & S. 67; Dolder v. Huutingfield (Lord). 11 Ves. 293. See 
 also Blackburn v. Thompson, ut sn/pra. 
 
 (4) Dolder v. Huntingfield (Lord), vt mp/ra. 
 
 " (5) Anon. Bull. N. P. 332 ; Burnand v. Nerot, 1 C. & P. 578. See also by Lord Ellen- 
 borough, C. J., in E. V. Sutton, 4 M. & S. 542 ; 19 N. Y. 483. 
 
 Under the new Code of Virginia, her courts are required to take judicial notice of pri- 
 vate or local statutes. Somerville v. Wimbish, 7 Gratt. 203. And in Iowa, all acts of 
 incorporation are declared public acts, to be judicially noticed (Dunham v. Daniels, 3 
 Greene, 318) ; and the courts are to take notice of the time when statutes take efi^t 
 (Pierson v. Baird, 2 Greene (Iowa), 235) ; and of public surveys (Wright v. . Phillips, 3 Id. 
 191) ; of the terms of court. Lindsay v. Williams, 17 Ala. 229. So in New York, courts 
 take judicial notice of the Constitution of the United States and of the laws enacted by 
 Congress under it (Jack v. Martin, 13 Wend. 811 ; 14 Id. 507) ; and of the civil divisions 
 of the state created by the constitution or by statute. People v. Breese, 7 Cowen, 439 ; 
 Chapman v. Wilber, 6 Hill, 475. 
 
 (6^ Co. Lit. 89 a. 
 
 (7) Soper v. Dlble, Lord Raym. 175 ; Eirskine v. Murray, Id. 1543 ; Carter v. DovnJsh, 
 Carth. 83 ; Williams v. Williams, Id. 269 ; Edie v. East India Company, 2 Burr. 1236 ; 
 Bamett v. Brandao. 6 M. & G. 630 ; S. C. 3 C. B. 519 ; 13 CI. & Fin. 787. 
 
 (8) Co. lit. 175 b ; Clements v, Scudamore, Lord Raym. 1034. 
 
 (9) 1 Rol, Rep. 106. See also Kiugsmill v. Bull, 9 East, 185. It seems that judicial 
 notice will not be taken of the forest laws. See 3 Leon. 309. 
 
 (10) ArCTle V. Hunt, Stra. 187 ; S. C, Fort. 847 ; Blacquiere v. Hawkins, 1 Doug. 378 ; 
 Bruin v. Knott, 12 Sim. 453 ; Piper v. Chappell, 14 M, & W. 624. 
 
 The following customs have at various times been certified by the Recorder of Lon- 
 don : — foreign attachments, 22 Edw, IV, 30, b ; 1 Bol. Ab. 554, pi. 8, 4. Set- also Bruce v. 
 Wait, 1 M. & G. 39 ; Crosby v. Hetherington, 4 M. & G. 9S3 : — ^that every shop within the 
 city is a market overt, 5 Rep. 83, b ; S. C, Moore, 860 ; Poph. 84. See also Lyons v. De 
 Pass, 9 C. & P. 68 ; S. C, 11 A. &E. 336 : — that married women may be sole traders, Lavia 
 V. Phillips, 8 Burr, 1776; and the custom that regulates the distribution at the property 
 of an intestate freeman, Bruin v. Knott, 12 Sim, 453, 453. 
 
 The general custom known in England as the law of the road, viz. : that horses and 
 carriages should keep to the left side of the road, though it can hardly be said to have 
 been judicially noticed, has been often recognized at Niai Prius. See Leame v. Bray, 5 
 Esp. 18 ; S. C, 3 East, 693 ; Turley v. Thomas, 8 C. & P. 104. The contrary practice pi». 
 vails in most of the continental countries of Europe, 
 
 (11) In re Nesbitt, 2 Dowl. & L. 529. 
 
SBC. I.] Of MaUers Judicially Noticed. 517 
 
 The judges of the courts of common law, will officially notice the 
 *622 *ecclesia8tical,(l) civil(2) and maritime(3) laws, at least so far as 
 
 they have been acknowledged and acted upon by the proper tribu- 
 nals of this country ; the doctrines and jurisdiction of the courts of 
 equity, (4) and the general practice of conveyancers. (5) 
 
 Proceedings of superior courts, ttc Each court is bound to take notice 
 of its own rules and course of proceeding, (6) the general customs of the supe- 
 rior courts of Westminster,(7) and the extent of their jurisdiction; (8) the 
 privileges of attorneys,(9) and of other officers of the superior courts. (10) 
 Each court will notice who are its own officers,(ll) but not who are the 
 officers of the other courts. (12) They are bound, also, by statute,(13) to 
 notice the signature of any of the judges of the superior courts. But they 
 will not judicially notice the time when an order was made by the judges 
 under the 1 Vict. c. 55. allowing a scale of fees. (14) And a court will not 
 notice a consent on a summons, unless followed, in due time, by an order 
 drawn up and served. (15) 
 
 The siiperior courts will notice courts of general jurisdiction, and the course 
 
 of their proceedings — as, the courts of the Counties Palatine, and of the 
 *623 great sessions in Wales,(16) (now abolished) ; also the limits *of 
 
 Counties Palatine,(lV) and of ecclesiastical jurisdiction with reference 
 to granting administration of the effects of a deceased person. (18) 
 
 Proceedings of courts of different jurisdiction. But it seems that no 
 court is bound to take notice of the peculiar practice of another court which 
 
 The courts of the United States take judicial notice of treaties with foreign govern- 
 ments, and of the public acts of such foreign governments carrying them into effect (U. 
 States V. Keynes, 9 How. U. S. 127) ; and of the laws of the several states and territories 
 which they are called upon to administer. U. States v. Turner, 11 How. U. S. 663 ; The 
 Same v. Philadelphia and New Orleans, Id. 654 ; Jones v. Hays, 4 McLean, 521. But the 
 courts of one state do not take judicial notice of the statute laws- of another state at vari- 
 ance with the common law. 10 Wend. 75. Such statute laws, as well as those of a 
 foreign country, may be read from the authorized publications of such states or countries. 
 Code of N. 5". § 426. 
 
 (1) Bro. Abr. tit. Quare Irrvpedit, pi. 12; 1 Roll. Abr. 526; 6 Vin. Ab. 496. See also 
 Atkinson v. Cornish, Lord Raym. 338 ; S. C, Carth. 446 ; 5 Mod. 395 ; Comb. 475 ; 12 Mod. 
 194; Holt, 48. 
 
 (2) See B. v. Cambridge (University), Lord Raym. 1334. 
 (8) Chandler v. Grieves, 2 H. Bl. 606, n. 
 
 (4) Elliott V. Edwards, 3 B. & P. 181 ; Maberly v. Bobbins, 5 Taunt. 625. See also In re 
 Clarke (2 Q. B. 619), as to the recognition by the common-law courts of the jurisdiction of 
 the master of the Bolls. 
 
 (5) By Lord Hardwicke, C. J., in Willoughby v. Willoughby, 1 T. B. 772. See also by 
 Abbott, C. J„ in Doe v. Hilder, 2 B. & A. 793 ; in Doe v. Plowman, 2 B. & Ad. 577 ; and in 
 Bowe V. Grenfel, By. & M. 398 ; and by Lord Eldon, C, in Howard v. Duncan, 1 Turn. & B. 86. 
 
 (6) Dobson v. Bell, 2 Lev. 176 ; Hugh v. Eobinson, 1 T. B. 118. 
 
 (7) Lane's Case, 2 Bep. 16, b ; Wolrich v. Massey, Cro. Jac. 67 ; Mounson v. Bourn, Cro. 
 Car. 518, 526. See also 6 Q. B. 780, 784. 
 
 (8) See by Alderson; B., in Doe d. Counsell v. Caperton, 9 C. & P. 116. 
 
 (9) By Lord Ellenborough, C. J., in Stokes v. Mason, 9 East, 426. See also Chatland v. 
 Thornley, 12 East, 544 ; Hunter v. Neek, 3 M. & G. 181 ; Walford v. Fleetwood, 14 M. & 
 W. 449. 
 
 (10) Ogle V. Norcliffe, Lord Baym. 869. 
 
 (11) Howell V. Wilkins, 7 B. & C. 783. See aJso Bland v. Drake, 1 Chitt. B. 165. In 
 Moiling V. Poland (3 M. & S. 157), Bayley, J., had refused to take judicial notice of the 
 handwriting of any of the masters of the court. 
 
 (12) B. V. Hard, 18 East, 189. 
 
 (13) 8 & 9 Vict. c. 118, § 2. Even before this statute each court would recognize the 
 signature of one of its own judges. B. v. Hare, vl swpra. 
 
 (14) Pilkington v. Cooke, 17 L. J. (N. S.) Exch. 141. 
 
 (15) Wood V. Harding, 3 C. B. 968. 
 
 (16) Peacock v. Bell, 1 Saund. 76, a,. See also Treganey v. Fletcher, Lord Baym. 154. 
 
 (17) 2 Inst. 557. 
 
 (18) Adams V. Terre-tenants of Savage, Ld. Raym. 854, 856,;. S. C, Salk. 40; 6 Mod. 
 134; Whyte v. Rose, 8 Q. B. 493. 
 
518 Of Mailers Jvdioially N'oticed. [ch. x. 
 
 is of a different jurisdiction, and employs a foreign course of procedure ; 
 thus the common-law courts will not take judicial notice of the practice of 
 the Court of Chancery,(l) or of the Courts of Review and Bankruptcy, (2) 
 or of the Ecclesiastical Courts; (3) or of any inferior court. (4) But a court 
 of error will take judicial notice of the authority and powers of the 
 court from which error is brought. (5) 
 
 The courts will not take judicial notice of the sheriff's book ;(6) nor of 
 the rules and orders of the Poor Law Commissioners, made under the 
 authority of the 4 & 5 W. IV, c. 76, § 15. (7) 
 
 Foreign laws. With regard, also, to the laws and customs of a foreign 
 state, they must be proved as facts, as our courts cannot take judicial 
 notice of them.(8) And the same rule applies to the laws of Scotland,(9) 
 
 and of our colonies.(lO) But it has been said that the courts in Eng- 
 *624 land will take judicial notice *that the law of Ireland is the same as 
 
 the law of this country, with regard to the commencement of a suit 
 by a process. (11) 
 
 Seals. It has already been seen that the courts will take judicial notice 
 of the great and privy seals ;(12) there are also other seals of which they will 
 take notice — some on account of the presumed notoriety of their official 
 character — others, by the express enactments of the legislature. 
 
 In the former class may be considered the seals of all the superior courts,(13) 
 
 (I) Dicas V. Brougham (Lord), 1 Mo. & R. 309 ; S. C, 6 C. & P. 249. In this case, an 
 ex-chancellor, Lord Eldon, was examined, among other witnesses, to prove the practice of 
 the Court of Chancery,- the case being tried before Lord Lyndhurst, C. B., who had him- 
 self been Lord Chancellor. See, also, Tucker v. Imnan, 4 M. & G. 1049, 1063. 
 
 In Doe d. Williams v. Lloyd (1 M. & G. 671), the Court of Common Pleas, upon the 
 authority of Worsley v. Filisker (2 Hoi. Eep. 1 19), caused inquiry to be made by their 
 own officers as to the practice in the Enrolment Office of the Court of Chancery, relative 
 to the indorsement of the certificate of enrolment upon a deed. 1 M. & G. 685. 
 
 (3) Van Sandau v. Turner, 6 Q. B. 773 ; In re Ramsden, 1 B C. Rep. 133. 
 . (3) Beaurain v. Scott, 3 Camp. 388 ; Tucker v. Inman, 4 M. & G. 1063. 
 
 (4) See Moravia v. Sloper, Willes, 37 ; R. v. Cambridge (University), Ld. R^ym. 1334 ; 
 Lane's Case, 2 Rep. 16 b, n. d; Peacock v. Bell, 1 Saund. 75 ; Deane v Robson, M. & M. 
 295 ; Rider v. Edwards, 3 Scott N. R. 456. 
 
 (5) Chitty V. Dendy, 3 A. & E. 319, 334. 
 
 (6) Russell V. Dickson, 6 Bing. 443., 
 
 (7) By Patteson, J., in R. v. Dolgelly Guardians, 8 A. & E. 563. 
 
 (8) By Lord Mansfield, C. J., in Mostyn v. Fabrigas, 1 Cowp. 174 ; by Grose, J., in 
 Collett V. Keith (Lord), 3 Blast, 373 ; by Lord Kenyon, C. J., in Ganer v. Lanraborough 
 (Lady), Peake, 17, 18. See, also, Henry v. Adey, 3 East, 331 ; Dalrymple v. Dalrymple, 3 
 Hagg. Cons. R. 54 ; Sussex Peerag-e Case, 11 CI. & Fin. 114. As to the proof of foreign 
 laws, vide post, Vol. II. See Code of N. Y.,. §436. 
 
 (9) Male v. Roberts, 3 Esp. 163 ; Mure v. Kaye, 4 Taunt. 34 ; Woodham v. Edwards, 5 
 A. & E. 771. As to the laws of Ireland, see Ferguson v. Mahon, 11 A. &E. 179; by 
 Maule, J., in Reynolds v. Fenton, 3 C. B. 191. 
 
 (10) Wey V. Yalley, 6 Mod. 194. See, also, 1 Cowp. 174. 
 
 (II) By Maule, J., in Reynolds v. Fenton, 8 C. B. 191, explaining Ferguson v. Mahon, 11 
 A. & E. i79. 
 
 The courts of a state do not take judicial notice of the statute laws of another stateof 
 the Union, at variance with the common law. Jones v. Saney, 3 Texas, 343 ; Holmes v. 
 Broughton, 10 Wend. 75 ; Monroe v. Douglass, 1 Selden, 448 ; Bank of Chillicothe v. 
 Dodge, 8 Barb. 233. The presumption is, that the common law prevails in a neighboring 
 state until the contrary is proved. Averett v. Thompson, 15 Ala. 678. The court will 
 assume the law of the foreign state to bo the same as its own. Cox v. Morrow, 14 Ark. 
 603. The state court does not take notice of the rate of interest established in another 
 state (Clarke v. Pratt, 20 Ala. 470) ;• or of its statute law in any other respect. Holman v. 
 Collins, 1 Carter (Ind.), 34. Such laws are to be proved as facts. Taylor v. Boardman, 25 
 Vt. 581. But see Herschfeld v. Dexel, 13 Geo, 582 ; Same v. Harris, 16 Id. 217. The law 
 merchant is to bo taken notice of without proof (Jewell v. ,Centre, 25 Ala. 198) ; but the 
 particular regulations of another state, such as the allowance of days of grace, may be 
 proved. Bowen v. Newell, 8 Kernan, 390. 
 
 (13) Supra, p. 619. 
 
 (13) Tooker v. Beaufort (Duke), Say. 397 ; Com. Dig. tit. Evidence, A. 2. 
 
SEC. I.] Of Matters Judicially Noticed. 519 
 
 of the Counties Palatine,(l) of the High Court of Admiralty, (2) of the 
 Ecclesiastical Courts. (3) 
 
 Judicial notice is taken of the seal of the corporation of tHie city of Lon- 
 don ;(4) but not of the seals of other corporations,(5) nor of the seals of 
 inferior courts, unless when they are made admissible by statute ; nor of the 
 seals of colonial or foreign courts ;(6) nor of the stamp affixed upon a judge's 
 order by his clerk; (7) nor of the seal of the sheriff. (8) 
 
 As instances falling within the second class, namely, of seals which the 
 
 legislature has required should be recognized, may be specified those of the 
 
 Court of Bankruptcy,(9) of the Court for the Relief of Insolvent debt- 
 
 *625 ors, (10) *of the courts recently established for the recovery of small 
 
 debts,(ll) and of the court of the vice-warden of the Stannaries. (12) 
 
 Judicial notice is likewise required Uo be taken of the respective seals of 
 the Board of Poor Law Commissioners, (13) of the record olSce,(14) of the 
 general register office,(15) and of the office of the registrar of designs for 
 articles of manufacture. (16) ' 
 
 Almanac, d!c. With reference to other matters of public notoriety, the 
 courts will take judicial notice of the almanac, the calendar being estab- 
 lished by act of Parliament ; (17) they will, therefore, notice all feasts and 
 fasts ;(18) the beginning and ending of the legal terms ;(19) the order of the 
 months, and the number of days in each month ;(20) the correspondence of 
 the days of the month with the days of the week,(21) such as, what days 
 fall upon Sundays. (22) 
 
 Division of hingdoms into counties. In like manner the courts will take 
 judicial notice of the general division of the kingdom into counties, because 
 process is directed to the sheriffs of these counties, and because they are 
 mentioned in a great variety of acts of Parliament ;(23) but they will not 
 
 (1) Oliver V. Guin, 3 Sid. 145, 147; S. C, Hardr. 118. 
 
 (2) Green v. Waller, Ld. Raym. 891, 893. 
 
 (3) Id. ; Kempton v. Cross, Bep. temp. Hardw. 108. It may be proved, however, that 
 that the seal of the Ordinary has been forged. B. N. P. 347. See, also, Noell v. WeUs, 
 1 Lev. 336. 
 
 (4) Doe d. Woodmass v. Mason, 1 Esp. 53. 
 
 (5) Moisas v. Thornton, 8 T. D. 807 ; Collins v. Carnegie, 1 A. & E. 695. See, also, 
 Cooch V. Goodman, 2 Q. B. 580. See note 373, Vol, II. 
 
 (6) Henry v. Adey, 3 East, 331. See, also, Buchanan v. Rucker, 1 Camp. 63 ; S. C, 9 
 East, 193. 
 
 In the same manner the seals of our courts are required to be proved in the colonies. 
 Clark V. Mullich, 8 Moo. P. C. R. 353, 280. 
 
 (7) Barrett Navigation Company v. Shower. 8 Dowl. P. C. 173. 
 
 (8) Bunbury v. Matthews, 1 Car. & K. 380. 
 
 (9) 1 & 3 .V m. IV, c. 56, § 38 ; 3 & 3 Wm. IV, c. 114, § 9. 
 
 (10) 5 & 6 Vict., c 116, § 11. See Doe d. Duncan v. Edwards, 9 A. & B. 554. 
 
 (11) 9 & 10 Vict., c. 95, 88 3, 57, 111. 
 (13) 6 & 7 Wm. IV, 0. 106, § 19. 
 
 (13) 4 & 5 Wm. IV, c. 76, 8 3. 
 
 (14) 1 & 3 Vict., c. 94, § 13. 
 
 (15) 6 & 7 Wm. IV, c. 86, § 38. 
 
 (16) 6 & 6 Vict., c. 100, § 16 ; 6 & 7 Vict., c. 65, 5§ 6, 7. 
 
 (17) By Holt, C. J., in Brough v. Parkings, Ld. Raym. 993 ; S. C, 6 Mod. 80. See 2 & 3 
 Edw. VI, c. 1 ; 5 & 6 Edw. VI, c. 1. See, also, 24 Geo. II, c. 33, § 3. 
 
 (18) Brough V. Parkings , ut supra ; 6 Vin. Abr. 493, pi. 8 — 14. 
 
 (19) 6 Vin. Abr. 490, pi. 33. See, also, Bra^field v. Lee, Ld. Raym. 339. 
 (30) Lang v. Gale, 1 M. & S. HI ; R. v. Brown, M. & M. 163. 
 
 (21) 6 Vin. Abr. 492, pi. 6—8 ; Page v. Faucet, Cro. Eliz. 227 ; Hany v. Broad, 2 Salk. 
 626 ; Brough v. Parkings, ut supra. 
 
 (23) Hoyle v. Cornwallis (Lord), 1 Stra, 387 ; Hanson v. Shackleton,' 4 Dowl. P. C. 48. 
 
 (23) By Bayley, J., in Deybel's Case, 4 B. & A. 246. See, also, 3 Inst. 347. They will 
 notice that a particular county is in England. R. v. Sharpe, 8 C. & P. 436. 
 
 So in New York (People v. Breese, 7 Cowen, 439 ; Chapman v. Wllber, 6 Hill, 476) ; and 
 in the other stalea. Ham v. Ham, 39 Maine R. 263 ; Ross v. Austill, 2 Cal. 183. 
 
520 . Of Fresuwptvee M}i(ilence, [ch. x. 
 
 take notice of the extent and boundaries of ,countie8,(l) nor of the local 
 situation of different places in each county, nor of the distances of one 
 county from another ;(2) nor of the divisiops of a county (3) , (unless, 
 
 probably, where, those divisions have been, created by., statute) ; (4) , 
 *626 nor of the local situation of parishes ; (5) or of*any particular 
 
 city, as, for instance, that Dublin is in Ireland ;(6) or that a parti- j 
 cular town is within a certain diocese; (7.) or that a particular place is 
 within a certain city, as that the Tower of London is: within the city of 
 London; (8) or that a particular street is in a certain county; (9) or even 
 that a street is a .thoroughfare, although, the word "street"— r^ia strata— 
 would rather imply a thoroughfare. (10), ■ _, 
 
 But the courts, will .take judicial nptice of ; the extent of ports and of the 
 river Thames. (11) 
 
 In like manner they will take notice of the value of the coin of the 
 realm, (12) and the various legal weights and measures ;(13) and also of 
 the meaning of words in general use in the English language,(14) for which 
 purpose, in a case of doubt, reference may be made to a dictionary. (15) 
 
 Finally, the courts will take judicial notice of events which, from the 
 invariable course of nature, could not have happened otherwise;' as, for. 
 instance, where a husband had no access to his wife till within a fortnight 
 of her delivery of a child, that he could not be the father of such child. (16) 
 
 SECTION IL 
 
 OF PKESUMPTIONS MADE BT COUETS AND JURIES. 
 
 The chief part of the reported cases concerning presumptive evidence 
 relates to presumptions of law. These are of two descriptions: 
 *62V First, *where. the presumption is so conclusive in its nature (as a 
 rule of law) as to . be capable of being withdrawn altogether from 
 the consideration of a jury, and which, if successive juries were to disre- 
 gard it, would be enforced by granting as many new trials, the presump- 
 
 (1) By Coleridge, J., in Brune v. Thompson, 2 Q. B. 791. 
 
 (2) By Best, J., in Deybel's Case, 4 B. & A. 248. 
 
 (3) R. V. Bourn, Burr. Set. Ca. 42. 
 
 (4) See 2 & 3 Wm. IV, c. 64 
 
 (5) Anon., 1 Chitt. 31 a. But the courts will presume that a place in England is paro- 
 chial, unless the contrary appears. R. v. St. Margaret, Westminster, 7 Q. B. 569. In 
 Harris v. Cook (8 Taunt. 539), upon a question of variance as to the name of the parish of 
 St. George, Bloomsbury, Burrough, J., observed : " The court cannot know whether there 
 be not more tlian one St. George." 
 
 (6) Kearney v. King, 2 B. & A. 801 ; S. C, 1 Chitt. 28, 32. 
 
 (7) R. V. Simpson, Ld. Raym. 1379. 
 
 (8) Brune v. Thompson, 2 Q. B. 789. 
 
 (9) Humphreys v. Budd, 9 Dowl. P. C. 1000. 
 
 (10^ By Tindal, C. J., in Grant v. Moser, 5 M. & G. 129. 
 
 ,,/.i^l?°"f o''- ^".'1'°' ^ ^- ^^- ^^^' 3^'^ : ■^"°°- 1 Chitt. 31 a. See, also, Pazakerly v. 
 Wiltshire, 1 Stra. 469. ' 
 
 (12) See Kearney v. King, 2 B. & A. 801. 
 
 (13^ 1 Rol. Abr. 525 ; Hoskin v. Cooke, 4 T. R. 314 
 
 (14) Storace v. Longman, 11 East, 245, n. ; Hrnie v. Dale, 1 Camp. 27. n. ; S. C 11 East 
 244, n. ; Clementi v. Golding, 1 Camp. 25 ; S.,C., 11 East, 244, as to the word " book f. R. 
 v. Woodward, 1 Moo. C. C. 828, as to the word "pulse" in the stat. 7 & 8 Geo. IV. c. 80, 
 8 17 ; R. V. Swatkins, 4 C. & P. 548, as to the words " corn or grain" in the same statute. 
 See, also, R. v. Beaney, Ry. & R. 416. 
 
 (15) Storace v. Longman, ut mpra. Where a word has acquired a peculiar meaning in 
 a particular locality, or among a certain class of persons, evidence of that meaning must 
 be given in the usual manner. See Shore v, Wilson, 9 CI. & Fin. 525, and that class of 
 cases referred to, pott, Vol. II, 
 
 (16) By Lord Ellenborough, C. J., in R. v. Luffe, 8 East, 201, 202. 
 
SBC. II.] And of Fremmptions. 521 
 
 tion being as obligatory upon juries as upon the court. Secondly, where 
 the presumption is not so conclusive in its nature, yet haying, received judi- , 
 cial sanction, ought to be adopted by a jury, and which, if not adopted, 
 might be a ground for a new trial. 
 
 Lord Stowell has observed, that when a criminal fact is ascertained, pre- 
 sumptive proof may be taken to show who did it, in order to fix the crim- 
 nal, there being an actual corpus delicti^ but that to take presumptions, in' 
 order to swell an eqivocal and ambiguous fact into a criminal fact, is an 
 entire misa{)plication of , the doctrme o^ presumptions. (1) However,' on 
 proper occasion*, the same learned judge was accustomed to resort to pre- 
 sumptive evidence for the purpose of testing the truth of positive testimony, 
 especially to that presumption which arises from the conduct of the parties 
 at the time of a transaction — the evidentia rei, as he used to call it — which 
 will generally be found to lead to a conclusion incompatible with direct 
 testimony, Vchere such testimony is. invented or exaggeirated. (2) 
 
 Where it appears that on one side there has been forgery or fraud in 
 some material parts of the evidence, and they are discovered to be the con- 
 trivance of a party to tlie proceeding, it affords a presumption against the 
 whole of the evidence on that side of the question, and has the effect of 
 gaining a more ready admission to the evidence of the other party. (3) 
 
 With respect to the comparative weight due to direct and presumptive 
 evidence, it has been said that proof by circumstances is in many cases of 
 greater force and more to be depended on than direct proof ; inasmuch as ' 
 witnesses speaking directly to a fact may be mistaken themselves, or may 
 intend to deceive others, whereas circumstances and presumptions, naturally 
 and necessarily arising out of a given fact, cannot lie. (4) It may be 
 remarked also, that circumstantial evidence is generally composed of a 
 more extensive and comprehensive assemblage of niots under the Cognizance 
 of a jury, and requires, therefore, a greater number of witnesses 
 *628 than *where the evidence is direct, whereby it is more capable of 
 being disproved if untrue. (5) 
 
 On the other hand, it may be observed, circumstantial' evidence ought 
 to be acted on with great caution, especially where an anxiety is naturally 
 felt for the detection of great crimes ; this anxiety often leads witnesses to 
 mistake or exaggerate facts, and juries to draw rash inferences. Not un- 
 frequently a presumption is formed from circumstances which would not 
 have been noticed as a ground of crimination, but for the accusation itself: 
 such are, the conduct, demeanor and expressions of a suspected person, when 
 scrutinized by those who suspect him. (6) Arid, again, any circumstantial 
 
 (1) In Evans v. Evans, 1 Hagg. Cons. Rep. 105. And see the observations of Abbott, 
 C. J., in R. V. Burdett, 4 B. & A. 161, as to the proof of the corpus delicti. 
 
 (3) Evans v. Evans, 1 Hagg. Cons. Rep. 105, 113. See Lord Stowell's observations on , 
 the drcumstantial evidence leading to the presumption of the fact of adultery, which, he 
 observes, is rarely proved by direct testimony. Loveden v. Loveden, 3 Hagg. Cons. Rep. 
 3 ; Cadogan v. Cadogan, Id. 4, n.; Chambers v. Chambers, 1 Id. 444 ; Williams v. 
 Williams, Id. 294 ; Elwes v. Elvres, Id. 377 ; Hammerton v. Hammerton, 3 Hagg, Ec. R. 8. ■ 
 
 (3) See Mr. A. Stuart's Letters to Lord Mansfield, upon the Douglas case. 
 
 (4) See Annesly v. Anglesea (Lord), 17 How. St. Tr. 1430. It was there said the pre- 
 sumptions in that case, arising from kidnapping and. the prosecution for murder, were 
 stronger than the evidence of a thousand witnesses. 
 
 (5) See Bentham's observations on the probative force of circumstantial evidence. 
 Rationale of Judicial. Evidence, Vol. 3, p. 251. 
 
 (6) Of the suspicious conduct sometimes exhibited by innocent persons under accusation 
 of crime, a remarkable instance is mentioned by Lord Hale, in his Pleas of the Crown, 
 Vol. 3, p. 290. On the dangers of circumstantial proof, see Defence of Donellan, published 
 by his solicitors, A. D. 1781. On the general subject of presumptive evidence, see 7 How. 
 St. Tr. 1529, n.; 14 Id. 1239, 1230, 1346 ; 17 Id. 1341, 14-30 ; 33 Id. 606 ; Burnet Crim. Law 
 Scot.; Harris's Crim. Law Scot.; Paley Mor. Phil.; Evans's Appendix to Pothier, 339 ; 
 Bentham's Rationale of Judicial Evidence, Vol. 5, which contains many valuable sugges- 
 tions on this sub 
 
 Vol. I 66 
 
522 Of Presumptive Eoidence, [ch. x. 
 
 evidence which comes through the medium of -witnesses, may, no less than 
 direct evidence, be discolored, exaggerated, or perverted. 
 
 Kinds of Presumption. — The first species of presumption may he again 
 divided into two kinds, first, when the presumption admits of no proof to 
 the contrary, and secondly, where it only affords a prima facie inference, 
 which is conclusive only in the absence of proof to the contrary. 
 
 In the history of the law, several presumptions which were at one time 
 deemed conclusive by the courts, have, by the opinions of later judges 
 acting upon more enlarged principle?, become conclusive only in the absence 
 of proofs to the contrary, or have been treated as wholly -Rrithin the dis- 
 cretion of juries. In modern times many presumptions have been estab- 
 lished, which convenience or general experience have dictated, and which 
 are binding upon juries until they are rebutted. Several presumptions of 
 this nature have been created by the courts ; others have been made by act 
 of Parliament, and this principally in case's of revenue and penal statutes. (1) 
 
 With respect to those presumptions of law, which are not considered 
 imperative upon juries, the occasions upon which judges have afforded their 
 sanction and authority to them have been various. In same cases, it has 
 been said, a jury ought to have drawn a particular inference which they 
 have not drawn, and a new trial has consequently been granted. In 
 *629 *others, the court has observed, that a jury or inferior court have not 
 improperly acted upon a particular presumption, and that therefore 
 the decision ought i not to be interfered with. It has not unfrequently 
 happened, that the same presumption has been spoken of by some judges, 
 as a rule of law ; whilst by others it has been treated merely as fit to be 
 recommended to a jury, or as one which a jury might properly make. 
 Though the presumptions under consideration are strictly within the pro- 
 vince of a jury, the language of courts- expressed in regard to particular 
 presumptions may, in general be expected to have considerable influence in 
 the determination of future cases, whether by a court or a jury, in which 
 the like presumption may arise. 
 
 The presumption of prescriptive rights or of obligations from modem 
 user, is seldom warranted in point of fact, or really entertained by juries. 
 It is, however, unusual for a judge to leave the presumption to a jury, in 
 cases where modern user is uncontradicted, as one which it is competent for 
 them to make; the jury is generally instructed, that they ought to make 
 the presumption. (2) 
 
 In a case respecting the seaworthiness of a ship, the Court of Common 
 Pleas were equally divided upon the question, whether a second new trial 
 should be granted on the ground that the jury had found their verdict in 
 direct opposition to the presumption of unseaworthiness arising from the 
 ship having become distressed recently ailer sailing, without any adequate 
 
 (1) A remarkable example of a statutory presumption was that -which was founded on a 
 concealment of birth, by the repealed statute of 21 Jac. I, c. 27. See Ashford v. Thorn- 
 ton, 1 B. & A. 405 ; where the nature of those presumptions is considered which were 
 deemed sufficient to support a counter plea to the wager of battle. 
 
 (2) See Jenkins v. Harvey, 1 C, M. & R. 894 ; where Parke, B. and Alderson, B. inti- 
 mated that it was improper for a judge to leave the presumption to a jury in such cases, 
 and that they should be instructed that they ought to make the presumption. The usage 
 had existed for more than seventy years. It was asked by the court, if juries were at 
 liberty to make the presumption or not, at their discretion, what would become of 
 moduses? In K. v. Joliffe (2 B. & C.64), Lord Tenterdcn, C. J., speaks of modern user as 
 affording cogent evidence of prescription ; and he observes that it is fit to recommend a 
 jury to make the presumption. In that case the usage had existed only for twenty years. 
 In Brune v. Thompson (4 Q. B. 548, 552), Lord Denman, C. J., spoke of the doctrine held 
 in Jenkins v. Harvey as being not altogether satisfactory, and said that any person 
 affected by it ought to have an opportunity of tendering a bill of exceptions. See also. 
 Page V. Hatchett, 8 Q. B. 598. 
 
SBC. II.] And of Presumptions. 523 
 
 cause ; a presumption -vrhich had been sanctioned by great legal authorities, 
 and been even called a rule of law. (1) 
 
 Presumptions arising from age. It seems to be a presumption not admit- 
 ting of proof to the contrary, that a person under the age of fourteen is 
 unable to commit the crime of rape ;(2) and also, that an infant under 
 *630 the age of seven years cannot be *guilty of felony. (3) It was form- 
 erly considered a prima facie presumption of law, that a person 
 under the age of fourteen was not guilty of a felonious indention, until evi- 
 dence was produced to show that he was doli capax ; for then, it was said, 
 malitia supplet CBtatem, /(i) but this presumption appears, in a great meas- 
 ure, to be inferentially put an end to, by the recent act for the more speedy 
 trial and punishment of juvenile offenders, (5) which gives a summary 
 power to justices to convict persons not exoeedmg fourteen years of age of 
 certain felonies. 
 
 Presumptions as to legitim,acy. If a child be bom after the marriage of 
 the mother, and during the husband's life, it is presumed to be legitimate. 
 It was formerly an established doctrine of the courts, that this presumption 
 in favor of legitimacy could not be rebutted, unless the husband was incapa- 
 ble of procreation, as from impotency or old age, or was absent beyond the 
 four seas during the whole period of the wife's pregnancy. (6) This doctrine 
 was not, however, conformable to the more ancient legal authorities. (7) And 
 in later times it came to be established, that the presumption, in favor of 
 the legitimacy of the child of a married woman, might be rebutted, if it 
 were shown that the husband had not opportunity for sexual intercourse 
 within such a period of time before the birth of the child, as would admit of 
 his having been the father : and, in the present day, even where a husband 
 and wife have had opportunities for sexual intercourse, at a time when the 
 husband might have become the father of the child, a court or jury are at 
 liberty to infer, from the circumstances of the case, that no sexual inter- 
 course took place. (8) But where a jury believe that sexual intercourse took 
 
 (1) Foster v. Steele, 3 N. 0. 892. See Douglass v. Scougal, 4 Dow. 369 ; Parfier v. Potts, 
 
 3 Id. 23 ; Watson v. Clark, 1 Id. 344 ; Mnnro v. Vandam, 1 Park. Ins. 469. Where evi- 
 dence is given showing that the vessel was seaworthy, and well manned and equipped 
 when she left port, and there is a conflict of evidence as to whether her loss four days 
 afterwards was caused by the perils of the sea ; the presumption that she was not sea- 
 worthy, which arises when the vessel founders sooH after leaving port, without stress of 
 weatlier or other adequate cause, cannot be invoked for the purpose of overturning the 
 verdict of a jury. " It is a mere presumption of fact, which shifts the onus probcmdi, and 
 prevails only where it is unrepelled by countervailing proof. But even to this extent, no 
 presumption of unseaworthiness arises, except from facts which exclude the rational 
 inference of a loss attributable to the perils of the seas." Per Pokteb, J., in Walsh v. 
 Washington Ins. Co., 33 N. Y. 437. The report of a survey is admissible in evidence, 
 Respecting the conduct and good faith of the master ; Hathaway v. The Sun M. Ins. Co., 
 8 Bosw. 33. 
 
 (3) 1 Hale P. C. 630 ; 1 Russ., C. & M. 676 ; R. v. Groombridge. 7 C. & P. 583, where it 
 was held that the presumption was not affected by the statute 9 Geo. IV, c. 31 ; R. v. Jor- 
 dan, 9 C. & P. 118. Nor can a boy under that age be convicted of an assault with intent 
 to commit a rape. R. v Eldershaw, 3 C. & P. 396 ; R. v. Philips, 8 C. & P. 736. But he 
 may be a principal in the second degree. 1 Hale, ut supra; tl. v. Brimilow, 9 C. & P. 
 366 ; S. C, 2 Moo. C. C. 123. 
 
 (3) 1 Hale P. C. 37 ; 4 Bl. Com. 23. 
 
 (4) 1 Hale P. C..3 ; 1 Russ. C. & M. 1—5 ; R. v. Owen, 4 C. & P. 336. And seeR. v. Sut- 
 ton, 3 A. & E. 597, 613, as to misdemeanors. 
 
 (5) 10 & 11 Vict. c. 83. 
 
 (6) Co. Litt. 344 a ; R. v. Alberton, 1 Lord Ray. 395 ; R. v. Murray, 1 Salk. 131. 
 
 (7) See them collected in Le Merchant's Preface to the Gardiner Peerage Case. 
 
 (8) Pendrell v. Pendrell, 3 Str. 925 ; R. v. Reading, Eep. temp. Hard. 83 ; R. v. Luffe, 8 
 East, 193 ; Banbury and Gardiner Peerage Cases, Le Merchant's ed., App., n. E ; S. C, 3 
 Selw. N. P. 759, 760 ; 1 Sim. & Stu. 153 ; Cope v. Cope, 1 Moo. & R. 369, 376 ; S. C, 5 C. & 
 P. 604 ; Morris v. Davies, 3 C. & P. 215, 427 ; S. C, 5 CI. & Fin. 163 ; Goodright v. Saul 
 
 4 T. R. 356. 
 
524 Of JPresumptive M)idence^ [ch. x. 
 
 place between husband and wife, at a .time when it might have led to the 
 conception of the child whose legitimacy is disputed, it would seem that 
 
 they ought not to find the child a bastard. (1) If, however, there was 
 *631 an *opportunity of access, though the wife was notoriously living in 
 
 adultery, it does not necessarily follow that the cliild is not legiti- 
 mate, (fe) Children born during a divorce amensaet thorOf&re presumed 
 to be illegitimate?{3) 
 
 Note 182.^Tl;ie American cases and authorities wiU be found substantially to acqoid 
 witb the English, without furnishing much additional matter for illustration. State v. 
 Pettaway, 8 Hawks. 633 ; Commonwealth v. Shepherd, 6 Binn. 283 ; Tate v. Penne, 7 Mart. 
 Lou. Eep. (N. S.) 548 ; Cross v. 'Cross, 3 Paige, 139 ; Commonwealth v. Wentz, 1 Ashm. 
 269 ; 1 Beck's Med. Jurispr. ch. 9 ; Johnson's Legatee v. Johnson's Executor, 1 DessausB. ! 
 Eq. Eep. 595 ; Vaughan v. Rhodes, 2 M'Cord, 227. 
 
 (1) Cope V. Cope, ut supra. In the report in 5 C. & P. 604, Alderson, B., is stated to 
 have said, " If the husband and wife are living separate, and the wife is notoriously living 
 in open adultery, although the husbajid have an opportunity of access, it would be mon- 
 strous to suppose that, under these circumstances, he would avail himself of such 
 opportunity. The legitimacy of a child born under such circumstances could, therefore, 
 not be established;" But in 1 Moo. & R. 275, the words are reported thus : " Even where 
 the husband is shown to have tad these opportunities of access, and was not impotent, 
 still this presumption also (of sexual intercourse) may be rebutted; as where the wife is 
 living in open and notorious adultery, and the husband on one single occasion only had 
 opportunity of access to her, and then at a time, and under circumstances rendering it 
 extremely improbable that he availed himself of the oppcfftunity, these facts might, per- 
 haps, be urged as a reasonable ground for concluding that sexual intercourse did not take 
 place." See l;his case commented on in R. v. Mansfield, 1 Q, B. 444, 450, 451. See further, 
 Head v. Head, 1 Sim. & Stu. 153,; S. C, 1 Turn. 139. It has, been said, that if a man mar- 
 ries a woman visibly pregnant, it is a conclusive inference of law that the child is legitimate. 
 
 As to the existence of any presumption respecting the length of the period of gesta- 
 tion,' see the evidence in the, Gardiner Peerage Case. Harg. Co, Litt. 123 b, n. 1 and 2 ; 
 Alsop V. Bowtrell, Cro. Jac. 541. As to the presumption, when a widow marries again, 
 and has a child withjn nine months, Harg. Co. Litt. 8 a, n. 7. f- 
 
 (2) By Lord Denman, C. J., in E. v. Mansfield, 1 Q. B. 444. 
 
 (3) St. Geprge v. St. Margaret, 1 Salk. 128. (The legitimacy of all children begotten 
 before the commencement of a suit for divorce, is presumed until the contrary is shown ; 
 and although actual adultery vrith other persons is established at or about t^e commence- 
 ment of the usual period of gestation, yet if access by the husband has taken place, so 
 that by the laws of nature he may be the father of the child, it must be presumed to be 
 his, and not the child of the adulterer. Cross v. Cross, 8 Paige Ch. 139. Courts will not 
 unsettle the title to property or put the status of any one in jeopardy, by specula,tim upon 
 the mere probabilities in favor of the illegitimacy of a child, who might or might not 
 have been begotten by the husband of its mother. The legal maxim that he is the father 
 whom the nuptials show to be so, is founded on reasons of policy and of law, and must 
 prevail until overcome by clear proof which puts the fact beyond a reasonable doubt. 
 Van Aeruam v. Van Aernam, 1 Barb. Ch. 875. 
 
 The legal presumption is, that a child born three months after the marriage is the 
 child of the husband, and this presumption is not overcome by the admission ot another 
 person that he was the father of the child. Montgomery v. Montgomery, 3 Barb. Ch. 183. , 
 
 Where the legitimacy depends upon establishing the fact of a marriage, the contract 
 may be proved by direct or by circumstantial evidence, such as cohabitation of the parties, 
 and their reception among friends as husband and wife ; but such circumstances are very 
 much weakened as evidence, where it is shown that the intercourse betwee» the parties 
 was illicit in its origin. Clayton v. Wardell, 4 Comst. 230. In Cheeney v. Arnold (15 N. 
 Y. Rep. 345), there was no cohabitation between the parties, and they did not hold them- 
 selves out as husband and wife, until after the child was born. There was, however, a 
 mutual engagement between them, to be married at some future time, and after such 
 engagement the plaintiff was begotten, and a formal marriage took place between the 
 parties shortly after plaintiff's birth. And the court held that upon these facts no pre- 
 sumption of a prior marriage could be entertained, commenting upon the case of Starr v. 
 Peck, 1 Hill, 270. 
 
 In Caujolle v. FerriS (23 N. Y. Rep. 90), it is conceded that where the intercourse 
 between the parents was illicit in its commencement, the law will presume that it con- 
 tinued of the same character ; though that presumption may be, as it was in this case, 
 overcome by a contrary presumption arising from the expressed desire of the parties, and 
 the fact that they left their own homes and lived togetlier as husband and wife. " The 
 law is unwilling to bastardize children, and throws the proof on the party who alleges 
 illegitimacy ; and in the absence of evidence to the contrary, a child, eo nomine, is, there- 
 
SBC. II.] And of Premmptions. 526 
 
 Presumptions as to marriage. The fact of marriage is generally con- 
 sidered as suflSciently proved by evidence of cohabitation, or even by 
 general reputation. (1) Even where a marriage between parties is proved 
 to have been illegal, it may be competent for a jury to presume, from the 
 circumstances of the case,' where the parties have cohabited as man and 
 wife, that a subsequent valid marriage has taken place. (2) 
 
 But in actions for adultery, and on indictments for bigamy, an actual and 
 
 valid marriage must be proved. (3) The reason why such strict proof is 
 
 required in "these instances, is in Oonsequence of' their penal nature, and 
 
 - because in cases of alleged adultery, the ' action might be turned to bad 
 
 purposes, if persons could give the name of wife to a woman to whom they 
 
 were not married. (4) It is not suflScient prima facie evidence to show that 
 
 the alleged husband and wife went through a religious ceremony, with the 
 
 bona fide intentions of thereby contracting a valid marriage, and afterwards 
 
 ' lived together as man and wife in the belief that they had thereby 
 
 *632 *contracted a valid marriage, if in law Such marriage was not valid. (5) 
 
 But it seems that proof of a marriage having been celebrated, by a 
 
 person; who was present, is sufficient, without proving expressly the reading 
 
 of the service. (6) 
 
 As to intention. There is a general presumption in criminal matters, that 
 a person intends whatever is the natural and probable consequences of his 
 own actions. (7) Where a prosecutor, on an indictment for forging a receipt 
 with intent to defraud him, swore that he believed the prisoner had no such 
 intent, the judge directed the jury, that the defrauding, being the neces. 
 
 fore, a legitimate child." Id. 107. This general presumption was allowed considerable 
 weight in this case, and a contract of marriage was inferred or held snfRciently proved 
 by the circumstances and the declarations of the deceased mother. S-. C, 26 Barb. 177. 
 
 In prosecutions for bfgamy a marriage in fact must be proved ;' reputation- and cohab- 
 itation alone are not sufficient. But as the contract of marriage may be entered into in 
 this state without any formal ceremony, it is not necessary to prove the ofScial character 
 of the person solemnizing the contract, it being immaterial whether the ceremony be 
 performed by a clergyman, or a person fraudulently personating him. Hayes v. The 
 People, 22 N. Y. Rep. 390. In actions for divorce, the statutes and rules of court specify 
 the causes and the circumstances under which the decree will be granted. A marriage 
 in fact must be provedi and in some cases a marriage within this state. 3 R. S. p. 235, 
 5th ed. Where the husband or wife absents himself or herself for the space of five years 
 without being known to the other party to be living during that period, a remarriage 
 after that lapse of time is voidable merely. The remedy of the former wife or husband 
 is by an action to annul the second marriage ; he cannot maintain an action for divoTGe 
 on the ground of adultery. Valleau v. Valleau, 6 Paige Ch. 207.) 
 
 (1) Doe d. Fleming v. Fleming, 4 Bing. 266 ; Reed v. Prosser, Peake, 333. See, also, 
 Sayer v. Glossop, 2 C. & K. 694. It will not be presumedthat the party tendering a deed 
 pursuant to contract is a married man; it is for the. party objecting to prove that fact. 
 Parker v. McAllister, 14 Ind. 13. 
 
 (3) Wilkinson v. Payne, 4 T. R. 468. 
 
 (As to the effect of aa«illegal marriage, as where the wife married again, suppodng her 
 husband dead, see Williamson v Williamson, 1 Johns. Ch. 488.) 
 
 (3) Morris v. Miller, 4 Burr. 3057 ; S, C, 1 W. Bl. 632 ; R. v. Allison, R. & R. 109. See, 
 also, Scrimshire v, Scrimshire, 3 Hagg. Cons. R. 895, 407 ; Middleton v. Janverin, Id. 437 ; 
 Kent v. Burgess, 11 Sim. 376 ; R. v. Simmons, 1 C. & K. 174 ; Willmett v. Harmer, 8 C. & 
 P. 695, upon a plea of justification to a libel charging the plaintiff with " polygamy." 
 
 (4) By Lord Mansfield, C. J., in Birt v. Barlow," 1 Doug. 171, 174. 
 
 (3) Catherwood v. Caslon, 13 M. & W. 261. It is vaUd here. Hayes v. People. 25 N. 
 T. 390. 
 
 (6) Hemmings v. Smith, 4 Doug. 33. 
 
 (At common law, no ceremony is necessary, nor is it generally required in this country. 
 Starr v. Peck, 1 Hill, 270. See Cheney v. Arnold, 15 N.' Y. Rep. 345.) 
 
 (7) See R. v. Dixon, 3 M. & S. 15 ; R. v. Hunt, 1 Moo. C. C. 93 ; R. v. Beard, '8 C. 4 P 
 148 ; R. V. Hill, Id. 376 ; R. v, Cooke, id. 583 ; R. v. Farringtou, R. & R. 307 j R. v. PhJlp 
 1 Moo. C. C. 263 ; R. v. Lovett, 9 C. & P. 462. 
 
 (So, in a civil action, as where the holder of a mortgage sues the mortgagor or pur 
 chaser of the premises for waste, the law imputes the design to injure, where the acts of 
 a party necessarily tend to the injury of another. Van Pelt v. M'Qmw, 4 Const. 110.) 
 
526 Of Presumptive JEkidence, [ch. x. 
 
 sary effect and consequence of the forgery, was sufficient evidence of the 
 intent of the prisoner to warrant them in convicting, (1) 
 
 Presumption of malice. It seems to be clearly a presumption of law, 
 which ought not to be left to the discretion of the jury, that where an act 
 is done by one person injurious to another, malice (that is, an attempt to 
 ' injure) \s prima, facie to be presumed in the person doing the act. A new 
 trial has been granted, because a judge left it to the jury to say, whether a 
 defendant intended to injure the plaintiff by the publication of a libel, the 
 court determining that the law would presume the intention. (2) Where a 
 communication is prima facie privileged, and therefore not libelous (as, an 
 answer to an inquiry as to the character of a servant), yet if the plaintiff 
 can show that such communication was untrue, and known to be so by the 
 person making it, it will raise the presumption of malice. (3) In actions for 
 
 malicious prosecutions, and the like, malice may be presumed from 
 *633 want of *probable cause ;(4) but the want of probable cause is only 
 
 presumptive evidence of malice, and ought not to be left to the jury 
 as conclusive. (5) In like manner, if a party knowingly makes a false repre- 
 sentation, whereby injury comes to another, the law will presume malice^ 
 whatever his real motives may have been. (6) Sir M. Foster observes, that 
 in every charge of murder, the fact of killing being first proved, all the 
 circumstances of accident, necessity or infirmity are to be satisfactorily 
 established by the prisoner, unless they arise out of the evidence produced 
 against him ; for the law presumes the fact to be founded in malice, unless 
 the contrary appears. (7) 
 
 Of negligence. Where any peculiar obligation is cast upon a person to 
 take care of goods intrusted to his charge, if they are lost or damaged 
 while in his custody, the presumption is, that the loss or damage was occa- 
 sioned by the negligence, that is, the want of care, of himself or of his 
 servants. This presumption will arise with regard to goods lost or injured, 
 which had been deposited in a public inn, (8) or which had been intrusted 
 
 (1) R. v. Sheppard, R. & E. 169. The judges Keld the conviction to be right. See, also, 
 E. V. Mazagora, Id. 291. 
 
 (3) Haire v. Wilson, 9 B. & C. 643. See, also, Fisher v. Clement, 10 B. & C. 475 ; Baylia 
 v. Lawrence, 11 A. & E. 925 ; R. v. Shipley, 4 Doug. 73, 177. The plaintiff may, however, 
 prove malice in fact, with a view to the damages. Pearson v. Lemaitre, 5 M. & G. 700. 
 As to proof thereof, see Edgell v. Francis, 1 M. & G. 222. The distinction between malice 
 in fact and in law is explained by Bayley, J., in Bromage v. Prosser, 4 R. & C. 253. 
 
 (3) Fountain v. Boodle, 3 Q. B. 5. 
 
 (Malice is presumed from the publication of a libel, but the defendant may show that 
 there was no actual malice or intention to injure in the publication. Taylor v. Church, 4 
 Selden E. 452.) 
 
 (4) Burley v. Bethune, 5 Taunt. 583. See further. Turner v. Turner, Gow, 20 ; Brooks 
 v. Warwick, 2 Stark. E. 389 ; Cozer v. Pilling, 4 B. & C. 26. 
 
 (5) Mitchell V. Jenkins, 5 B. & Ad. 588. And see Hounsfield v. Drury, 11 A. & E. 98. 
 (In such actions the plaintiff must prove want of probable cause and malice in fact. 
 
 Bulkier V. Smith, 2 Duer (N. Y. Sup. Ct.), 261.) 
 
 (6) Tapp V. Lee. 3 B. & B. 371 ; Foster v, Charles, 6 Bing. 396 ; 7 Id. 105 : Pontifex v. 
 Bignold, 3 M. & G. 63. 
 
 (The intention to deceive and defraud must be alleged and proved ; but the falsehood 
 uttered in the recommendation is sufficient proof of that intention. Allen v. Addington, 
 7 Wend. 9 ; S. C, 11 Id. 374 ; Williams v. Wood, 14 Id. 126.) Hubbard v. Briggs, 31 N, 
 Y. 518. 
 
 (7) Fost. Disc. 256, 257. See, also, 1 Hale P. C. 455 ; 1 East P. C. 340 ; 3 M. & S. 15 ; B. 
 & K. C. C. 169, 207, 291. People v. Eogers, 18 N. Y. 9. See post, p. 773. 
 
 See, also. The People v. McLeod, 1 Hill E. 877 ; Shorter v. The People, 2 Comst.93 ; 1 
 4 Barb. 460. 
 
 (8) Dawson v. Chamney, 5 Q. B. 164. And see Richmond v. Smith, 8 B. & C. 9 ; Calye'g 
 Case, 8 Sep. 32. 
 
 McDonald v. Edganton, 5 Barb. 560, 564; Hill v. Owen, 5 Blackf. (Ind.) 823. 
 
SKC. II. J And of I*resumptions. 527 
 
 to a common carrier. (1) But such presumption in all such cases is only 
 prima facie, and may be rebutted. (2) 
 
 Various presumptions. Where a libel is sold at a bookseller's shop by 
 his servant, the sale is said to be presumptive evidence of a publication 
 by the master. This is stated to be upon a ground of policy, lest irrespon- 
 sible persons should be put forward, and the person who really produces 
 the publication, and without whom it could not be published, should 
 *634 escape. (3) But the ^evidence is not conclusive, and under the plea 
 of " not guilty " the master may still prove that the publication 
 took place " without his authority, consent or knowledge," and that there 
 was "no want of care or caution on his part." (4) 
 
 In like manner a baker who sells bread containing an ingredient which 
 renders it noxious, is responsible for the offense, if he ordered the ingre- 
 dient to be introduced into the bread, although he gave directions for 
 mixing it up in a manner which would have rendered it harmless. (5) So 
 upon an indictment against the directors of a gas company for a nuisance, 
 it has been ruled that the defendants were answerable for acts done by their 
 superintendent and engineer, under a general authority to manage the works, 
 though they were personally ignorant of the particular plan adopted, and 
 though such plan were a departure from the original and understood 
 method, which the directors had no reason to suppose was discontinued. (6) 
 Lord Denman, C. J., there laid down the rule in very broad terms : " It is 
 said that the directors were ignorant of what had been done. In my judg- 
 ment that makes no difference ; provided they gave authority to (the 
 superintendent) (7) to conduct the works, they will be answerable. It seems 
 to me both common sense and law, that, if persons, for their own advantage, 
 employ servants to conduct works, they must be answerable for what is done 
 by those Bervants."(8) 
 
 On indictments for larceny, proof that part of the stolen goods have been 
 found upon the person of the prisoner, or in his house or possession, is 
 presumptive evidence against him of his having stolen them, so as to call 
 upon him for his defense, and may be sufficient to warrant a conviction if no 
 facts appear in evidence to repel that presumption. (9) The goods are 
 
 (I) Coggs V. Barnard, 3 Lord Raym. 918. 
 
 Day V. Riddley, 16 Yt. 48 ; Brehm v. Gt. Western R. Co., 34 Barb. 256 ; 82 Id. 657. 
 Negligence is not in general presumed any more than fraud ; Terry v. Mayor, &c. of New 
 York, 8 Bosw. 504, 510 ; Waldron v. Rensselaer & Sar. R. R. Co., 8 Bajb. 390. 
 
 (3) See DawBon v. Chamney, vt supra. 
 
 (3) R. V. Gutoh, M. & M. 433. And see Harding v. Greening, 8 Taunt. 43 ; R. v. AJmon, 
 6 Burr. 3686. As to newspapers, see R. v. Walter, 3 Esp. 31. And see further, as to the 
 evidence of publication of a libel, R. v. Lovett, 9 C. & P. 463. 
 
 (4) See 6 & 7 Vict., c. 96, § 7. 
 
 (5) R. V. Dixon, 4 Camp. 13 ; S. C, 3 M. & S. 11. See Att. Gen. v. Riddle, 3 C. & J. 
 493, and see Goodrich v. People, 19 N. Y. 574. 
 
 (6) R. v. Medley, 6 C. & P. 393. 
 
 (7) The superintendent was one of the defbndants indicted. 
 
 (8) 6 C. & P. 297. « 
 
 The principle ^ated in the text does not apply in the case of a sub-contractor. Edwards 
 on Bailments, 317, and cases there cited. 
 
 (9) See 3 & 3 Vict., c. 71, § 34, as to the power vested in the metropolitan magistrates to 
 deal with such cases summarily as a misdemeanor. 
 
 Note 183. — The rule laid down in the text, that proof of a larceny committed, and soon 
 after finding the stolen goods in possession of the prisoner, shall be received as prima 
 fade evidence of his guilt, is so familiar in all its various applications and qualifications, 
 that our author has deemed it unnecessary to cite authorities. Should the student feel 
 desirous to look farther, he will find at least the general rule so well established as to 
 be taken for granted, or used rather by way of illustration, than as requiring any reported 
 case to sustain it. 2 Hal. P. C. 289 ; Russ. on Cr. 1154 ; 4 Stark. Bv. 840. Other English 
 authorities hereinafter cited. Pennsylvania v. Myers, Add. 330, 331 ; State v. Jenkins, 2 
 Tyl. 377,379; State v. Bennett, 3 Const. Rep. 693; State of Connecticut v. Weston, 9 
 Conn. Rep. 587, 539. Other American-authorities, infra. 
 
528 Of .Presumptive M)tdence, [ch. x. 
 
 But it IB always advisable tote well and particularly advised, not only of the condition 
 precedent which lets in the rule, but the time and nature of the prisoner's possession ; 
 and how the prima fade evidence may be sustained and repelled after it has arisen. 
 •635 *1. In all cases, but especially in this, the larceny itself must be proved (Russ. on 
 Cr. 1153 ; per Golden, Mayor, 3 C. H. Rec. 138) by the best evidence the nature of the 
 case admits. Murray's Case, before Riker, Recorder, N. Y. Gen. Sess., Oct. ' 1821, 6 C. H. 
 Rec. 65, 66. This should be by the testimony of the 'owner hiSnself, if the property was 
 ' taken from his iiiimediateposstission, or if from the actual possession of another, though a 
 mere servant or child of the owner, that other must be sworn, so that it may appear that 
 the immediate possession was violated, and this, too, without the consent of the person 
 holding it. Id. Where non-consent is an essential ingredient in the offense, as it is here, 
 direct probf alone, from the person whose non-consent is necessary, can satisfy the rule. 
 You are put to 'prove a negative; and the very person who^ can swear directly to the 
 necessary negative must, if possible, always be produced. Res v. Rogers, 3 Campb. 654 ; 
 Williams v. The East India, Co., 3 East, 193, 301 ; S. C, pest: Other and inferior proof 
 cannot be resorted to, till it be impossible to procure thi^ best evidence. If one person be 
 dead who can swear directly to the negative, and another be living who can yet swear to 
 the same thing, he must be produced. In such cases, mere presumptive, primfi facie or 
 'circumstantial €!videnee, is secondary in degree, and cannot be used till all the sources of 
 direct evidence are exhausted. Williams v. The East India Company, supra, And see 
 jposi, note. , 
 
 Indeed, the rule is general. You shall not be permitted to grope in the twilight of 
 circumstantial evidfence; when the broad daylight of direct atd ^sifiVd proof is attainable. 
 A strong caSe to this' effect occurred in a court to which we are m'dch indebted for mani- 
 fold and various illustrations in the different branches of our criminal law. 
 
 On a charge of stealing a watch from- a lodger (one Dimmiek^, the watch was positively 
 Bworn to as belonging to Diminick.; and was then traced to the prisoner's possession 
 directly after they had lodged together in the same bed. The prisoner had left it in care 
 of one H. P. On being arrested, he told the officer that he had given the Watch to the 
 right Owner; but on their Way- to the police Office, he ofifered money to the constable, if 
 would permit him to escape ; and, after they had arrived, attempted to escape forcibly. 
 Dimmick had been heard, the very morning after the prisoner had lodged with him, 
 to complain that the prisoner had stolen the watch. The prisoner led the police officer to 
 different parts of the city in seia,rch of the watch, and finally to tKe house of H. P., where 
 it was found. It appeared, also, that he had sought to bribe Dimmick not to appear 
 against him ; and his character turned out to be infamous; even from the very witnesses 
 whom he produced in its support. But Dimmick hai left the place on necessary business ; 
 and was not produced. Golden, Mayor, stopped the case, therefore, and directed an acquit- 
 tal. He said Dimmick was the only parson who could positively swear that the watch 
 ■was Stolen. Sometimes the owner coUld not be produced ;' and other evidence was neces- 
 sary; but where circumstances were resorted to in order to establish i^xe felony, they 
 must be such as are reconcilable only with the guilt, and are wholly inconsistent with the 
 innocence of the prisoner. He might in this case have done the acts imputed, in ojtder 
 to avoid the odium of a public prosecution. N. Y. Gen, Sess. Sept. 1818 ; Plunket's Case, 
 3 C. H. Rec. 137, 138. 
 
 " 'SoiihsX it is absblutdy neeesaary,iox the purpose of proving that ' the goods were 
 stolen, to produce the owner ; for cases frequently occur where such proof cannot be 
 obtained." Per Golden, Mayor, in Plunket's Case, vt supra. Thus, where the owner died 
 before the trial, his land steward's oath was received, with other circumstances usually 
 attending a larceny, from which the j ury inferred the non-consent of the owner. Rex v. 
 Hazy, 3 Car. & Payne, 458. But where several persons are owners, or bailees, &c,, the 
 rule would probably not be so strict as to require the oath of all. On trial of an indict- 
 ment for obtaining goods on pretense that the prisoner had been sent for them by Titus 
 & Townsend, the"owners, Townsend swore that he did not seild the prisoner for them ; 
 and he thought his partner was absent at the time, but could not say certainly. The 
 goods not having been delivered to T. & T., this was held ^o cast the onus of snowing 
 consent on the prisoner. The People v; Tilton, before Riker, Recorder, J^^. Y. Gen. Sess., 
 Jan. 1823, 3 Wheel. Cr. Cas. 351, 252. 
 
 And the rule has lately been relaxed in favor of the king, who had his deer stolen from 
 his forest ; and the Prince of Saxe Coburg, whose fish were stolen from a pond in his 
 park ; and one John Greenwood, a Quaker, whose fish had also been stolen from a pond 
 In his yard. The respective agents of these several persons who had the management of 
 the above respective properties were sworn, and their oaths, with the' circumstances of 
 the larcenies, held sufficient by the twelve judges. The particular ground of this 
 •636 departure from the general rule is not stdted ; *but was probably because the king 
 and prince must have been presumed never to trouble themselves with giving or 
 withholding consent in so small a matter. Swearing them would have been an Idle form. 
 Greenwood being a Quaker, could' not be affirmed (an<e), and would not swear ; and so, 
 on the whole, the best available evidence was received. Rex v. Allen, Ry, & Mood, Or. 
 Cas. 154, 155. The court, doubtless, took judicial notice of that dignity and elevation of 
 
SEC. II. J And of Presumptions. 529 
 
 character and employment which disqualify kings and princes to give any information 
 concerning a matter so minute ; while the conscientious scruples of the Quaker worked 
 a disability equally permanent. It was much like the case of an attesting witness, who 
 resides without the jurisdiction of the court, which lets in, as we shall see hereafter, 
 secondary proof to establish .the document ; whereas Dimmick, in Pluncket's case {sv/prd), 
 was a resident of the state ; whose disability, from absence, was temporary. Prisoners 
 must stUl submit to farther delay on bail or confinement, as the case may require, where 
 there is an unavoidable failure to bring forward the essential prosecuting witness from a 
 temporary cause, until this can be removed. Commonwealth v. Carter, 11 Pick. 277. 
 
 2. Due proof of non-consent, with the fact that the property is missing, having made 
 out that a larceny has, in the abstract, been committed, the next step is to fix it on the 
 prisoner ; and the act of taking being generally perpetrated in secret, the possessor is, 
 therefore, sought for by those interested, or by an officer with his proper search warrant. 
 The goods being soon after found, either on the prisoner's person or in his house, &c., he 
 Is, prima fade, deemed guilty. Here, however, we must attend to several things ; and 
 pnt, of the time. Hale says, if the goods be found with the person the day of the theft 
 being committed, this is a strong presumption ; and yet, even in such a case, C, a very 
 subtle horse thief, being pursued, procured B. to lead the horse, under pretence that he 
 (C.) was pressed to go aside ; thus escaping, and leaving the presumption to fall on B., 
 who was, though tried before a very learned and wary judge, condemned and executed. 
 2 Hal. P. C. 389. It is agreed, therefore, that where you rely on simple possession, the 
 
 interval between the time of the taking and finding should be short. Rex v. , 3 
 
 Carr. & Payne, 459 ; Rex v. Adams, 3 Carr. & Payne, 600. Where sixteen months had 
 elapsed, Bay ley, J., directed an acquittal (Rex v. , 2 Carr. & Payne, 459) ; and after- 
 wards, where three mouths had elapsed. Rex v. Adams, 3 Carr. & Payne, 600. 
 
 The reason for desiring a short time is. that otherwise the goods may have changed 
 hands often ; or the diflSculty of the prisoner be rendered greater, in accounting for the 
 manner of obtaining them ; or their identity may be rendered more doubtful. But all 
 these considerations depend much on the nature of the property. 2 East's P. C. 656 ; 4 
 Stark. Ev. 841. Light, pocket articles, or those wMch are portable in a small compass, 
 especially if they be common or cheap, would of course be purchased, or received with 
 less probability of the transaction coming under the observation of others who could be 
 witnesses,, than ponderous, large, rare, curious or expensive things. A horse being stolen 
 on the 10th, and found on the l(5th of the same month, at sixty miles distance from the 
 place of taking, in the prisoner's possession ; this was holden to raise the presumption. 
 State V. Adams, 1 Hayw. 463. So where notes were mailed the 17th April, possession of 
 them by one employed in the post-oflice on the 21st, was held evidence of secreting the 
 letter, under the stat. 7 G. Ill, c. 50. 4 Stark. Ev. 841. And in another case two months 
 were held not to rebnt the presumption. State v. Bennett, 2 Const. Rep. 693. But note : 
 there were concealment and other circumstances in this case. In State v. Adams (iupra), 
 the prisoner gave an improbable account; and in the case, 4 Stark. 841, the man was 
 employed in the very office where the money was deposited. See and note the next para- 
 graph, infra. 
 
 But posseasion of the goods is always competent evidence, be the time longer or shorter ; 
 however insufficient it may be, per se, after a considerable lapse of time. In such a case 
 some circumstances additional to the possession, are necessary to raise the presumption, 
 which may be the prisoner's conduct or language before or after the larceny ; or his 
 proximity to the time and place of the taking. 2 East's P. C. 655; Russ on Cr. 1154. 
 Among these are filse or improbable representations, to account for the possession. Armi- 
 stead's Case, 1 C. H. Rec 174, before Riker, Recorder, 4 Stark. Ev. 841 ; Ball's Case, 4 C. H. 
 Kec. 157, 158, before Riker, Recorder. As where he said he had purchased the horse at 
 E., when there was not time to have done that and reached the place where the horse was 
 found with him. State v. Adams, 1 Hayw. 464. So the prisoner's readiness or unwilling- 
 ness to meet the charge, may be considered (4 Stark. Ev. 841) ; his selling the article 
 *637 for an inferior price. Pennsylvania v. Myers, Addis. 320, 321 ; *Armistead's Case, 
 1 C. H. Rec. 174, before Riker, Recorder. So the prisoner first consenting to a 
 search by a police officer ; then questioning his authority ; first saying she was a vridow ; 
 then that she had a husband ; first saying she bought the property at P., a distant city ; 
 then that it was brought to her house by A., an insolvent, to conceal it from his creditors. 
 Kiley's Cases, N. Y. Gen. Sess. before Radcliff, Mayor, Feb. 1816, 1 C. H. Rec. 23. So 
 where the prisoner secretes the property. State v. Bennett, 2 Const. Rep. 692 ; Rex v. 
 Watson, 2 Stark. Rep. 137. 
 
 Seccmdly, as to pkice. No doubt, as suggested in the text, a finding at the prisoner's 
 house, is equally competent in evidence as a finding upon his person. In Rex v. Watson 
 (2 Stark. Rep. 139), Abbott, J., observed, that an assize had scarcely ever occurred, where 
 it did not happen that a part-of the evidence against the prisoner consisted of proof that 
 the stolen property was found in the house after his apprehension. 
 
 So it may be shown that the goods were found where the prisoner had been seen, or 
 nf^ar were he had been seen. In Rex v. Watson (supra), Lord Ellenborough cited this 
 case from recollection : " a butler to a banker at Malton, had been taken up upon suspic- 
 
 Vol. L 67 
 
530 ^f J^esumpHve JEkidence, [ch. x. 
 
 ion of having committed a great robbery. The prisoner had been seen near the privy, 
 and this circumstance having excited suspicion in the minds of the counsel who consid- 
 ered the case during the assizes at York, at their instance, search was nfSxie, and in the 
 privy all the plate was found. It was produced, and the prisoner was in consequence 
 convicted. He had been separated from the custody of the plate, since he had been con- 
 fined in York castle for some time, but no doubt was entertained as to the admissibility 
 of the evidence." So on the tri^l of an indictment for having in possession counterfeit 
 bills, with intent to pass them, it need not be proved that they were found on the person ; 
 it is enough that they Appear to have been under the control of the prisoner. Connor's 
 Case, 5 C. H. Hec. 115, before Golden, Mayor, N. Y. Gen. Sess. Sept. 1820. But it should 
 be remembered that although a finding even in the prisoner's house is admissible ; yet, 
 where there is not a more direct possession shown, and there are no other inmates in the 
 house capable of stealing the goods, this finding, per se would not raise the presumption. 
 Other circumstances should be shown. 4 Stark. Ev. 840, note z. And the reason is 
 stronger of a finding in the prisoner's open shop. A blacksmith secretly deposited a piece 
 of iron in a heap of coal which lay in the coal-house of a neighboWng blacksmith (a Mr. 
 Lamb, Moreau, Saratoga county) ; then swore out a search warrant on which he found 
 the iron, to Lamb's great astonishment ; and was proceeding to convict Lamb before a 
 special session. He would probably have succeeded, had not a boy of Mr. H. Billings, 
 who resided within a few rods of the shop, accidentally seen the prosecutor, a few morn- 
 ings beforej passing with something into the shop about daylight, and returning in an 
 unaccountable manner. This led to a suspicion that the whole affair was simulated ; 
 resulted in a thorough investigation ; and the prosecutor afterwards suffered the penalty 
 of his fraud and perjury. Lamb was a man of excellent character. This, to be sure, was 
 not the case of a genuine circumstance ; but it proves that an open shop of this character 
 may too easily be perverted to the ruin of an innocent man, to warrant a reliance upon 
 the finding alone, as a full foundation for the usual inference. 
 
 Thirdly. All this presupposes the goods to have been duly identified, which may be by 
 marks, or the witness's confident general knowledge of the particular goods. 2 East's P. 
 C. 656, 657 ; 3 Ev. Poth. 249, 350. A witness may safely be relied on as to his acquaint- 
 ance with a specific article of familiar use (as his mun clothes), though he can give no 
 reason for his means of identity, or give, as he often may, a false or absurd reason. 2 Ev. 
 Poth. 349, 350. But where, as it often happens, the goods stolen cannot be thus identi- 
 fied, as if the charge relate to grain in a barn, sugar in a ship or on wharves and the like, 
 the identity must then be made out by circumstances. These may be the detection of 
 the prisoner in the very act of leaving the place, vrith the grain, or sugar, &c., upon him, 
 which is found to be missing, 3 East's P. C. 657 ; Russ. on Cr. 1155. The prisoner con-, 
 cealing the property is corroborative. Id. Silk being missed from a strfre package lying 
 open for sale, the same kind of silk was traced to the possession of three persons (squalid 
 looking negroes) who had labored about the store the same day, and who had sold this 
 silk to S. as coming from a venture at sea. Some buttons stolen at the same time were 
 identified directly, and traced to one of the prisoners. The identity was holden to be well 
 made out by these circumstances. Case of Ferguson et al., before Radcliff, Mayor, N. Y. 
 Gen. Sess. April, 1810, 1 C. H. Rec. 65. So, where an habitual laborer about a store, well 
 acquainted with the premises, was indicted for stealing bank bills and silk ; the proof was 
 that the bills and the silk were purloined through a secret approach from the cellar to the 
 store ; and bills, some of them of the same denomination with those taken, were after- 
 wards found on the laborer, which the clerk thought were the same as those taken from 
 a desk in the store. The laborer had sold silk of the same description as that which was 
 missed. The circumstances were left to the jury as suflBcient to show the identity ; and 
 they found the prisoner guilty. Williamson's Case, before Radcliff, Mayor, N. Y. Gen. 
 Sess. July, 1816, 1 C. H. Rec. 115. 
 
 3. The presumption arising from the possession or other circumstances, may, of course, 
 be explained away or repelled by opposing circumstances. The better opinion seems to be 
 that the presumption arising from possession alone is completely removed by tlie good 
 character alone of the prisoner. This was denied by Radcliff, Mayor, in Ferguson's Case 
 (mi/pra) ; but he considered that a very strong case. In another, where the goods were, 
 soon after the larceny, found on the prisoner (a female), though her own account was not 
 entirely satisfactory, yet the court directed her to be acquitted on proof of her good 
 character. People v. Turell, 1 Wheel. Cr. Cas. 34, 35, before Riker, Recorder, N. Y. Gen. 
 Sess. Sept. term, 1833. And in anotlior case, in the same term (People v. Preston, Id. 41), 
 the recorder said to the jury : " Where stolen property is found in possession of the pri- 
 soner, and he is unable and refuses to give a satisfactory account how lie came in posses- 
 sion of it, and proves no good character, it is always taken as evidence of his guilt." 
 
 The possession of the goods may also be accompanied with circumstances (such as 
 unsuspicious conduct) repelling the presumption. Sales' Case, 5 C. H. Rec. 178,179. The 
 prisoner may also show that he was ail accessory after the fact ; and thus rebut the infer- 
 ence of stealing arising from the possession. But if his statements be (on ^ving an 
 account of the property) false and inconsistent, this may be relied on to rebut the proof 
 
SEC. n.] And of Presariiptions. 531 
 
 *638 *Bometimes found in the prisoner's' house before his ap;{)rehension, 
 frequently found afterwards; and there can be no ol^ection to |ii-oof 
 of their being found at one time or the other. (1) This kind of evidence is 
 frequently strengthened materially by other circumstances — as by proof 
 that about the time of the offense the prisoner -was near the spot from 
 which the goods were taken — or that he gave some false account respecting 
 the goods on being charged with the crime — or endeavored to conceal 
 them, or, perhaps, tried to prevent an inspection — or by some other proof 
 of suspicious circumstances in his behavior. On the other hand, the infei^ 
 ence arising from the mere fact of possession, will be much weakened, if any 
 considerable time has elapsed between the loss of the property and the find- 
 ing of it again, or if the property was from its nature likely to pass in the 
 interval through many hands ; especially where the prisoner betrayed no 
 appearance of guilt at the time of his apprehension ; nor will the mere dis- 
 covery of stolen property in the house of the Accused be of itself sufficient 
 to raise the presumption against him, if there were other inmates capable of 
 
 committing the larceny. (2) 
 *639 *Where a person is proved to have suppressed any species of evi- 
 dence, or to have defaced or destroyed any written instrument, a 
 presumption will arise that, if the truth had appeared, it would have been 
 against his interest, and that his conduct is attributable to his knowledge 
 of this circumstance. The general rule is, Omnia proesumuntur contra spo- 
 liatorem.iZ) Where a testator made a will, and devised premises to A.; 
 afterward^ he made another will, which was lost, and which the jury stated 
 in a special verdict to be different from the former will, but they did not 
 find in what particular the difference consisted ; the court decided that the 
 devisee under the first will was entitled to the estate; (4) but Lord Mans- 
 field, 0. J., said, that if the devisee under the first will had destroyed the 
 second, it would have been a good ground for a jury to find a revocation. 
 It has been considered that, upon a charge of robbery, it is not necessary 
 that actual fear should be strictly proved, because, as it is said, the law, 
 in odium spoUatoris, will presume fear, where there appears to have been a 
 just ground for it. Accordingly, an indictment for robbery has been sus- 
 
 that he was a mere accessory. Ball's Case, 4 C. H. Kec. 157, 158, before Golden, Mayor, 
 N. Y. Gen. Sess. Nov. 1819. See also Pennsylvania v. Myers, Addis. 330, 331. 
 
 That finding part of the goods is proof of stealing the whole, see ^st, and note. 
 
 In these cases the judge is not precluded from giving his opinion to the jury upon the 
 evidence as well as the law ; which are often so blended that it is difficult to take a dis- 
 tinct and disconnected view of each separately. State v. Bennett, 3 Const. Rep. 693. 
 
 (1) See by Lord Bllenboroixgh, C. J., and Abbott, J., in R. v. Watson, 3 Stark. R. 139. 
 
 (2) See the observations on this presumption, 3 East P. C. 656, 665 ; 3 Hale's P. C. 289 ; 
 1 Russ., C, & M., by Greaves, 123. As to, the interval elapsing bef^veen the loss and dis- 
 covery of the property ; see Anon., 2 C. & P. 459 ; R. v. Partridge, 7 O. & P. 551 ; R. v. 
 Adanis, 3 C. & P. 600 ; R. v. Cockin, 2 Lew. R. 335. As to property being found in the pris- 
 oner's house, see R. v. Hall, 3 Cowp. 738. It may be observed that this presumption is 
 frequently as strong in favor of receiving stolen property, as of stealing it. See as to the 
 possession of stolen property being evidence of another felony, post. 
 
 (3) Evans* Poth. Obi. 292. ArUe, notes 177 and 180. 
 
 (4) Harwood v. Goodright, Cowp. 86. For other examples of this presumption; see 
 Aunesly v. Anglesea, 17 How. St. Tr. 1430, where the presumption arose from the plain' 
 tiff being kidnapped and sold for a slave. Sir S. Romilly's argument on Lord Melville's 
 trial, 29 How. St. Tr. 1194, where most of the cases are Collected. Cowper v. Cowper, 3 P. 
 Wms. 730, 748, 752 ; Gartside v. Radcliffe, 1 Ch. Ca. 303 ; Delany v. Tenison, 3 Br. P. C. 
 659 ; Dalston v. Coatsworth, 1 P. Wms. 731 ; Anon., 1 Ld. Raym. 731 ; Newcastle (Duke) 
 V. Kinder)y, 8 Yes. 363 ; R. v. Arundel, Hob. 109, cit. 2 P. Wms. 748 ; Barker v. Ray, 2 
 Buss. 78 ; Clunnes v. Pezzy, 1 Camp. 8, n. ; Braithwaite v. Coleman, 4 N. & M. 654 ; Armory 
 V. Delamorie, 1 Str. 505. As to the inferences to be drawn from withholding books, 
 after notice to produce, see Cooper v. Gibbons, 3 Camp. 363 ; Lawson v. Sherwood, 1 Stark. 
 R. 314 ; Crisp v. Anderson, Id. 35 ; Bate v, Kinsey, 1 C, M. & R. 41. 
 
 So where a party shows that he has burnt up an instrument, he must go further and 
 show that it was done under circumstances that repel all inference of a fraudulent design 
 on his part. Blade v. Newland, 12 Wend. 173. 
 
532 Of IVesuTfiptwe Miidenoe, [en. x. 
 
 tained, where the party robbed sought out the robber and submitted to be 
 robbed by him, purposely with the view of bringing him to justice. (1) 
 
 The fabrication of evidence is calculated to raise a presumption against 
 the party who has recourse to such a practice, not less than when evidence 
 has been suppressed or withheld. Legal experience, however, has shown 
 that false evidence has sometimes been resorted to for proving facts which 
 are true. (2) In the Douglass Peerage Case, the successful party had 
 *640 to *contend with a presumption against him, arising from the fabri- 
 cation of several letters. (3) 
 In general, there is a presumption in favor of the continuance of what is 
 once proved to have existed. (4) In questions concerning the duration of 
 human life, there is a presumption which has been much sanctioned and 
 acted upon (if it be not obligatory upon juries), that where a person has 
 been absent abroad for seven years, he is to be presumed to be dead. This 
 period has been adopted as the gro^ind of such presumption, from analogy 
 to the statute 1 Jac. I, c. 11, § 2,(5) relating to bigamy, and to the statute 
 1 9 Car. II, c. 6, relating to the con^nuance of lives on which leases are 
 held. (6) Lord Denman, C. J., has said, (7) that there was no rigid rule of 
 
 (1) Fost. Dis. 138 ; 2 East P. C, c. 16. § 128. i 
 
 (3) See a remarkable instance, 3 Inst. 333. 
 
 (8) See Appendix to Evans' Pothier, respecting the four letters of Lamarre, the surgeon, 
 fabricated by Sir J. Steivart. ' 
 
 (4) Wilson V. Hodges, 2 East, 312 ; Throgmorton v. Walton, 2 Roll. K. 461 ; Att. Gen. 
 V. Parnther, 3 Br. Ch. Ca. 35 ; Exp. Holyland, 11 Ves. 10; White y. Wilson, 13 Yes. 88 ; 
 Hargr. Co. Litt. 185, n. ; White v. Driver, 1 Phillim. 100 ; R. v. Budd, 5 Esp. 259 ; Ludlow 
 (Mayor, &c) r. Charlton, 9 C. & P. 243. 
 
 Note 184. — S. P., Lessee of Battin v. Bigelow, Peters, C. C. Rep. 453. And see ante, 
 note 177. But where this presumption necessariiy involves in its consequences the com- 
 mission of a crime by another person, the rule is otherwise; for the presumption against 
 crime is stronger than that which ordinarily exists in favor of life. Rex v. The Inhabit- 
 ants of Twyning, 2 Barn. & Aid. 386. CRtle to property, such as a vessel, is presumed to 
 continue. Flanders v. Merritt, 3 Barb. 201 ; so where a person is shown to have been a 
 resident of another State at a givea time, his continued residence there will be presumed. 
 Nixon V. Palmer. 10 Barb. 175, 178; the existence of a partnership two or three years 
 since being proved, it will be presumed to continue. Cooper v. Dedriek, 33 Barb. 516 ; so 
 in respect to bad character ; Sleeper v. Van Middlesworth, 4 Denio, 431 ; gambling habits ; 
 McMahon v. Harrison, 6 N. T. 443 ; adulterous intercourse ; Smith v. Smith, 4 Paige, 432 ; 
 and adverse possession, 4 Sand. Ch. 633 ; but a continuance of fact will not be presumed, 
 so as to establish an Bet of conversion ; Whitney v. Slauson,, 30 Barb. 276 ; a continuance 
 of life is presumed ; Duke of Cumberland v. Graves, 9 Barb. 595 ; HUl & Denio, 36 ; a man 
 between thirty and forty years of age, in good health, is presumed to have a reasonable 
 expectation of life, for at least twenty years more ; Johnson v. Hudson River K. R. Co., 6 
 Duer, 633. 
 
 In Smith v. The New York Central R. R. Co., (48 Barb. 225), it appeared that plamtiff 
 delivered goods, in a good condition to the Western Railroad Company in MassachusettSy 
 whose road connected with that of the defendant, to be carried by rail and delivered at 
 Rochester ; and the goods having been delivered at Rochester in a damaged condition, 
 the court held that they would presume or infer that tlie goods were delivered to the 
 Central road in the same condition aa they were when deUveiEed to the Western road, on 
 the principle that things once proved to have existed in a jiarticular state are to he pre- 
 sumed to continue in that state until the contrary is shown by evidence ; thus casting the 
 burden of proof on the defendant to show if it could that the goods came into its posses- 
 sion in a damaged condition. Where certain damages are excepted in a bill of lading, 
 proof of non-delivery casts upon the carrier the burden of showing a loss by the excepted 
 dangers; the bill of landing cannot be varied by parol evidence; Simmons, v. Law, 8 
 Bosw. 318.) 
 
 (5) See also 9 Oeo. IV, c. 31, § 33. 
 
 (6) In Doe d. George v. Jesson, 6 East, 85, the presumption is spoken of as a rule of 
 law. See also Doe d. Uoyd v. Deakin, 4 B. & A. 433 ; Rowe v. Hasland, 1 W. Bl. 404 ; at 
 the period of which laat-naentioned derasion the presumption does not appear to have 
 heen so definite as to time. The presumption of death, from absence for seven years, waa 
 formed, however, previous to the statute of bigamy, in Thome v. Bolffe, Dyer, 185 ; 
 Bendl. 86. See Hopewell v. De Pinna, 3 Camp. "118 ; "where in a plea of coverture, thft 
 defendant was held to be bound to prove her husband aliva within seven years. 
 
 (7) In R. V. Harbonne. 2 A. & E. 544. 
 
SBC. II.] And of Presumptions. 533 
 
 presumption upon such questions of fact, without reference to accompanying 
 circumstances, as, for instance, the age or health of the party. (1) The fact 
 of absence for seven years raises no inference as to the exact time of the 
 death, or that the death took place at the end of seven years. (2) Death, 
 without issuo, may be presumed, where marriage and issue are two affirma- 
 tive facts to be proved. (3) 
 
 *641 * Presumption of survivorship. By the civil law,(4j and in foreign ' 
 codes, (5) several rules are laid down for the direction of courts, in 
 ascertaining the fact of survivorship, where several persons have perished 
 by the same calamity. No very definite rule has been adopted in this 
 country upon the subject ; but there appears to have been a leaning to con- 
 sider the person possessed of the property in dispute, to have survived ; 
 and some regard appears to have been paid to the probability of the sur- 
 vival of the stronger party. (6) In the Ecclesiastical Courts, the presump- 
 
 (1) See Watson v. King, 1 Stark. R. 131 ; S. C, 4 Camp. 272 ; where it was held, that 
 the time of death of a person, sailing on board a missing ship, was to be judged of accord- 
 iug to the special circumstances. See also Norris v. Norris, Rep. tem. Finch, 419 ; Dixon 
 V. Dixon, 3 Bro. Ch. Ca. 510 ; Sillick v. Booth, 1 Y. & Col. 117 ; In re Button, 1 Curt. 595. 
 
 (2) Doe d. Knight v. Nepean, 5 B. & Ad. 86 ; S. C. in error, 2 M. & W. 894 ; where the 
 lessor of the plaintiff sought to place the period of death at the end of seven years, in 
 order to avoid an adverse possession. 
 
 (3) Doe d. Oldnall v. Deakin and Wooley, or Wolley, 3 C. & P. 402 ; S. C.,8 B. & C. 22. 
 And see Doe v. Griffin, 15 East, 293 ; Richards v. Richards, Id. 294, n. ; Rust v. Baker, 8 
 Sim. 443. 
 
 Note 185. — In New Jersey, the statute attaching on the fact of seven years' absence 
 from the state raises the presumption of death, which, however, may be rebutted by 
 proof that the absentee has been alive within that period. Wambough v. Schank, 1 
 Penn. Rep, 229. So iu South Carolina, seven years' absence from the state is reasonable 
 ground for presuming death. Woods v. Woods' Adm'r, 2 Bay, 476. Ifl Kentucky, to 
 justify the presumption of death after seven years' absence, the person must be proved 
 absent for that period out of the country of his residence. Spurr v. Trimble, 1 Marsh. 
 Ken. Rep. 378 ; Hull v. Commonwealth, Hardin's Ken. Rep. 479 ; Amer. Ch. Dig. 176. 
 In Pennsylvania, proof that a person has not been heard of for seven years is sufficient 
 to rebut the presumption of life ; and the lapse of twenty-four years, without proof of 
 inquiry or other circumstances, is enough to warrant the presumption that a person, 
 of whom nothing has been heard for that length of time, is dead. Innis v. Campbell et 
 al., 1 Rawle, 373. In Massachusetts, also, the mere absence of a person from the state 
 without being heard from f )r seven years, is sufficient to raise the legal presumption of 
 death ; but absence for a shorter period is not so. Where letters of administration, how- 
 ever, have been granted, it is different; for then the fact of death does not rest on 
 presumption, but on an adjudication of the Probate Court. Newman v. Jenkins, 10 Pick. 
 615. Ignoratice in a family of the existence of one of the children, who had gone abroad 
 at the age of 22, unmarried, and had not been heard of for upwards of forty years, is 
 sufficient, with other circumstances, to warrant the presumption of his death mthmit 
 iisue. McGomb v. Wright, 5 John. Ch. Rep. 263. See Crouch et ux. v. Eveleth, 15 Mass. 
 Rep. 305 ; University of North Carolina v. Johnston, 1 Hayw. Rep. 373. In New York, 
 it is provided by statute, that "if any person, upon whose life any estate or tenements 
 shall depend, shall remain beyond sea. or shall absent himself, in this state or elsewhere, 
 for seven years together, such person shall be accounted naturally dead, in any action 
 concerning such lands or tenements, iu which his death shall come in question, unless 
 sufficient proof be made in such case of the life of such person." 1 R. S. 749, «5 6 ; 1 R. 
 h. 108. § 1. See Clarke v. Cummings, 5 Barb. 354. In King v. Paddock (18 John. Rep. 
 141), Spencer, C. J., delivering the opinion of the court, seemed to think, in this case, that 
 the facts authorized the jury also to presume the death of the husband, from the wreck 
 or foundering of the vessel in which lie left.) 
 
 (The presumption of death from absence beyond sea or elsewhere for seven years in 
 succession, vrithout having been heard from, is very general. Primm v. Stewart, 7 Texas, 
 178 ; Forsaith v. Clark, 1 Foster (N. H.), 409 ; but the only presumption is, as stated in 
 the text, that he is then dead, not that he died at any particular time. Spencer v. Roper, 
 13 Ired.'(N. C.) 333 ; McCartee v. Qarmel, 1 Barb. Ch. 455 ; The State v. Moore, 11 Ired. 
 160. No presumption of death arises from mere lapse of time and the previous bad 
 health of the party. Matter of Hall, Wallace, jr. 85. 
 
 (4) See Dig. 1. 34, t. 5 ; 1. 9, t. 1, 3 ; 1. 16, t. 22, 33. 
 
 (5 See Code Civ. (Fr.), §§ 720-722. 
 
 (6) See SilUok v. Booth, 1 Y. & Col. 117, 126. See ante, note 98. 
 
534 Of IVesumptive JEkidence, ^ [ch. x. 
 
 tion appears to be adopted, that all the sufferers perished together, and 
 could not, therefore, transmit rights the one jto the other. (1) 
 
 *642 *JPresumption as to loss of a ship. With respect to the presumption 
 of the' loss of missing ships, a practice is said to prevail among under- 
 writers, that a ship shall be deemed lost, if not heard of for six months 
 after her departure for any port in Europe, or in twelve months after 
 departure for any greater distance. (2) 
 
 As to appointments and official acts. It has been seen, that it is a rule 
 that all public officers, who are proved to have acted as such, are presumed 
 to have been duly appointed to the office, until the contrary is shown, and 
 that the force of this presumption is so strong as to supersede the rule which 
 excludes secondary evidence. (3) 
 
 Where acts are of an official nature, or require the concurrence of official 
 persons, a presumption arises in favor of their due execution ; it has been 
 said on such occasions, " Omnia proesumuntur rite esse acta." Thus, in 
 order to support a parish certificate, a custom was presumed, contrary to 
 the common law, of the parish having only one churchwarden, and it was 
 also presumed that a party to the instriinient had died within a vqry short 
 period, — on the ground that the certificate had been sanctioned by 
 justices.(4) 
 
 With regard to judicial proceedings in inferior courts and before magis- 
 trates, the maxim " Omnia rite acta" will apply in support of an order of 
 justices, provided their jurisdiction appear on the face of the order, (5) but 
 it. does not apply to convictions, which, being proceedings of a summary 
 nature, are always watched with jealous vigilance by the superior courts ;(6) 
 still, though they can intend nothing in favor of convictions, they will 
 intend nothing against them.(7) The max;m, however, will not 
 *643 *apply so as to give jurisdiction (8) therefore where an examination 
 of a soldier, taken before two magistrates, was tendered to prove his 
 settlement, but it did not appear by the examination itself, or by other 
 proof, that the soldier, at the time he was examined, was quartered in the 
 
 (1) See Taylor V, Diplock, 3 Plullim. 261 ; Colvin v. Pfoc. Gen., 1 Hagg. Ec. R. 93 ; B. 
 V. Hay (Case of General Stanwix), 1 W. Bl. 640. See also Pearne's Postnamous Works, 
 88 ; 3 Phillim. 368, n. ; 5 B. & Ad. 91, 93. And see Selwyn'a Case, 3 Hagg. Ec. R. 748 ; 
 In the goods of Murray, 1 Curt. 596 ; Mason v. Mason, 1 Mer. 308, n. ; Brougliton v. 
 Randall, Ci-o. Eliz. 503; Wright v. Netherwood, 2 Salk. 593, n. ; S. C. nonj. Wright v. 
 Sarmuda, 2 Phillim. Ec. R. 366, 377, n. c, a question of revocation of a tvill, a father, wife, 
 and child dying by shipwreck. 
 
 (See, also, Moehring v. Mitchell, 1 Barb. Ch. 364 ; McComb v. Wright, 5 Johns. Ch. 
 363 ; King v. Paddock, siwpra) 
 
 (3) Park Ins. 106, 107 ; Patterson v. Black, Id. 433 ; Newby v. Reed, Id. 148 ; Green v. 
 Blown, 3 Str. 1199 ; Cohen v. Hinkley, 2 Camp. 51 ; Coster v. Innes, R. & M. 333 ; Twem- 
 low V. Oiswin, 2 Camp. 85 ; Houstinan v. Thornton, Holt, 342 ; Koster v. Reed, 6 B. & C. 
 19 ; Watson v. King, 1 Stark. R. 131. See ante, note 98. 
 
 (3) Supra, Chap. 9, Of the Rule Requiring the Best Evidence. Ante, p. 593. 
 
 (4) R. V. Catesby, 3 B. & C. 830. And see R. v. Hinckley, 13 East, 361 ; R. v. Bestland, 
 
 I Wils. 138 ; R. v. Benson, 3 Camp. 508 ; B. v. Whitchurch, 7 B. & C. 573 ; R. v. Upton 
 Gray, 10 B. & C. 807 ; Bastard v. Trutch, 3 A. & E. 451. Ante, note 177. 
 
 . (5) R. V. Morris, 4 T. R. 553. As to the presumption in favor of the regularity of the 
 proceedings in the Ecclesiastical Courts, see Chesterton v. Farlar, 7 A. & E. 713 ■ Hall v 
 Maule, Id. 731 ; Hallack v. Cambridge (Univ.), 1 Q. B. 593, 614. 
 
 (6) See R. v. Morris, ut mma ; K. v. Baines, 2 Lord Raym. 1265, 1269 ; R. v. Little 1 
 Burr, 613 ; B. v. Corden, 4 Id. 2281 ; R. v. Pain, 7 D. & R. 67S ; R. v. Daman, 3 B. & A. 
 378 ; Fletcher v. Calthrop, 6 Q. B. 890, 891. 
 
 (7) By Lord EUenborough, C. J., in B. v. Hagell, 13 East, 141 ; Paley Conv. 74 — 77. 
 See, also, by Pratt, C. J,, in E. v. Helling, 1 Str. 8 ; by Coleridge, J., in Christie v. Unwin, 
 
 II A. & E. 879 ; by Lord Denman, C. J., In re Clarke, 2 Q. B. 630. 
 
 (8) By Holroyd, J., in R. v. All Saints, Southampton, 7 B. & C. 790 ; B. v. Hulcot, 6 T. 
 R. 583 ; B. v. Helling, 1 Str. 8, overruling, R. v. Gouohe, 3 Salk. 441. 
 
SKC. ii.J And of Presumptions. 535 
 
 place where the justices had jurisdiction, it was held that such an examina- 
 tion was not receivable in evidence. (1) 
 
 Private formal acts. This presumption has been extended to the acts 
 of private individuals, especially when they are of a formal character, as 
 writings under seal. Thus, in an action in which the plaintiff's title was 
 founded on the assignment of a term to secure an annuity, it was objected 
 that there was no proof of the annuity being enrolled ; but Lord Ellen- 
 boi-ough, 0. J., held that proof of the want of enrollment should come from 
 the 'other side, and that he would presume the security to be valid, till the 
 contrary was shown. (2) Where there was proof that a party had signed a 
 deed which purported to have been sealed and delivered, it was held, that 
 the judge at Nisi Prius had not done wrong in leaving it to the jury to 
 infer that the deed had been sealed and delivered. (3) 
 
 Upon a similar principle, and in accordance with the law of mer- 
 *644 chants, *a negotiable security will be presumed ^rwna facie to have 
 been made for a valuable consideration. (4) 
 
 It may also be stated as a general rule, that a document will be presumed 
 
 (1) R. V. All Saints. Southampton, 7 B. & C. 789. In Carratt y. Morley (1 Q. B. 18), it 
 was held that the jurisdiction of commisaioners of a local court of requests could not be 
 inferred merely from their having acted. 
 
 (3) Doe d. Griffin v. Mason, 3 Camp. 7. And see Doe d. Lewis v. Bingham, 4 B. & A 
 672 ; London and Brighton Rail. Ck). v. Fairclough. 3 M. & G. 674. 
 
 (3) Talbot V. Hodson, 7 Taunt. 351. And see Fasset v. Brown, Peake, 33 ; Grellier v. 
 Neale, Id. 146 ; Burling v. Paterson, 9 C. & P. 570; Davidson v. Cooper, 11 M. & W. 784; 
 R. V. St. Paul, Covent Garden, 7 Q. B. 338. As to the presumption that a deed was duly 
 stamped, see Doe d. Fryer v. Coombs, 6 Jur. 930, Q. B. See, also. Crisp v. Anderson, 1 
 Stark. R. 35 ; R. v. Long Buckhy, 7 East, 45 ; Pooley v. Goodwin, 4 A. & E. 94 ; Hart v. 
 Hart, 1 Hare, 1. The illustrations of this presumption are very numerous. For example : — 
 Necessary priority of conveyances of the same date. Barker v. Keate, 1 Freem. 251 ; Tay- 
 lor v. Horde, 1 Burr. 107: — Sheets of a. will present in a room. Bond v. Seawell, 3 Burr. 
 1773 ; S. C, 1 W. Bl., 407, 433, 454 : — Subscription in testator's presence. Hands v. James, 
 Com. 531 ; Brice v. Smith, WUles, 1 ; S. C, Com. 538 ; 3 Eq. Ca. Abr. 317 ; Croft v. Paw- 
 let, 2 Str. 1109 : — Interlineations Ijefore sealing, Trowell v. Castle, 1 Keb. 23 ; Hargr. Co. 
 Litt. 235, b, n. 1 ; Glanville v. Paine, Barn. 19 ; Fitzgerald v. Fauconberge, Fitz. 304. But 
 see Cooper v. Bockett, 4 Moo. Pri. Coun. R. 419 : — Consecration of chapel, 3 Hagg. Ec. R. 
 50 : — Confirmation of conveyance of glebe, Cro. Jac. 456 : — Sanction of right of presenta. 
 tion to a chapel of ease, 3 Eden, 360 ; Ambl. 538 ; 4 B. & C. 455 : — Confirmation of modus, 
 2 P. Wms. 573 : — Composition real, 3 Anstr. 373: — Consent to inclosure, 1 Vern. 32 ; 5 
 Vin. Ab. 8. pi. 32 : — Republication of will, 8 Ves. 129 : — Induction, Chapman v. Beard, 3 
 Anstr. 332 : — Enrollment of charitable use, 3 B. & A. 152 : — Surrender of copyhold, 1 J. & 
 W. 630 ; 10 East, 409 :— Copyhold advittance, Blunt v. Clarke, 2 Sid. 61 ; Froswell v. 
 Welsh, 1 Roll. Kep. 415 ; Roe d. Eberall v. Lowe, 1 H. Bl. 446 ; Watkins on Copyholds, 
 269, n ; 7 East, 21 ; Dyer, 293, a ; Cooks v. Hellier, 1 Ves. 234. See, also. Doe d. Wood- 
 house V. Powell, 8 Q. B. 579, and cases there cited. See Merritt v. Cornell, 5 N. Y. Leg. 
 Obs. 300. The delivery of a bond will be presumed from its being found in its proper 
 place. Selden v. Del. & Hudson Canal Co., 29 N. Y. 634. 
 
 On an agreement being produced and the signatures proved genuine, the defendants 
 may show that they never delivered the agreement, but signed it on the express condition 
 that it was not to be delivered as an executed instrument, until it was signed by certain 
 other persons. Burnham v. Wilbur, 7 Bosw. 169 ; U. States v. Leffler, 11 Pet. R. 86. It 
 depends upon the circumstances which may be proved by parol, whether those who have 
 executed a written instrument are bound, where it is not executed by others named in it 
 as parties. Chouteau v. Suydam, 31 N.jY. 179. The agreement will bind the parties sign- 
 ing, if there be nothing in its terms and nothing shown to prevent its taking effect as an 
 ■'Executed contract. Id. 179. So in the case of a compromise agreement signed by only 
 part of one's creditors. Renard v. Fuller, 4 Bosw. 107. A delivery in escrow is not pre- 
 sumed ; and a delivery to a stranger in behalf of the grantee takes effect immediately, if 
 made without any condition. Brown v. Austen, 35 Barb. 341. Leaving a deed at the 
 clerk's office for record is not a delivery (Jackson v. Phipps, 12 John. 48), unless it be left 
 with the clerk for the grantee's use. Elsey v. Metoalf, 1 Denio, 333 ; Rathbun v. Rath- 
 bun 6 Barb. 98. A delivery in escrow can only be made to a stranger. Worrall v. Muun 
 5.N. Y. 329. 
 
 (4) Collins V Martin, 1 B. & P. 651 ; Holliday v. Atkinson, 5 B. & C. 501. 
 (13 Wend. R. 484; 13 Id. 557; 9 Cowen, 77.) 
 
536 (^f -Presumptive Miidence, [ch. x. 
 
 to have been made at the time when it bears date.(l) There are some 
 exceptions, however, to this rule ; as, where an instrument is produced for 
 the purpose of proving a petitioning creditor's debt, to support a pro- 
 ceeding in a bankruptcy; in that case some evidence besides the date is 
 necessary, to show that the instrument had its existence before the act of 
 bankruptcy. But the ground for requiring that proof is, that a proceeding 
 in bankruptcy differs from an ordinary suit. The effect of a proceeding in 
 bankruptcy is retrospective, and the object of it is to invalidate all transac- 
 tions which have taken place between the act of bankruptcy and the time 
 when the commission takes effect. And as it is the interest of the petition- 
 ing creditor to support the fiat, the courts feel a reasonable jealousy of 
 collusion between him and the bankrupt. (2) Upon the same principle, 
 where, in an action for criminal conversation, the letters of the wife are 
 given in evidence, for the purpose of showing the terms upon which she 
 was living with her husband, some other evidence besides their date is 
 required, to show the period when they were written. (3) 
 
 In a case where a defendant gave in evidence a letter of the plaintiff, 
 dated the 1 7th of January, purporting to be an answer to one written by 
 one W., and the plaintiff in reply proposed to put in a letter, proved to be 
 written by W., and dated the 16th of January, as that to which the one of 
 the IVth was an answer, it was ruled to be inadmissible, without further 
 evidence to show that it was the letter to which the plaintiff's was written 
 in answer, or, at least, that it was in existence before the date of the plain- 
 tiff's answer. (4) 
 
 *645 * Presumption from course of public office. Presumptions are fre- 
 quently made from the regular course of a public office. Thus, 
 where it was proved that the custom-house would not permit an entry to 
 be made, unless there had been an indorsement made upon a license, it was 
 held, after proof that the license had been lost, that the indorsement might 
 be presumed from the entry. (5) If a letter is sent by the post, properly 
 directed, (6) there is a. prim,a facie presumption, from the usual course of a 
 department of the public service, that it reached its destination, till the 
 contrary is proved. (7) And presumptions are frequently drawn from 
 
 (1) As to deeds, see Davies v. Lowndes, 6 M. & G. 52. And see 6 N. C. 300 : Awards, 
 Doe d. Clarke v. Stillwell, 8 A. & E. 645 ; Bills of exchange and promissory notes, Ander- 
 son V. Weston, 6 N. C. 396; Obbard v. Betham, M, & M. 486 ; Smith v. Battens, 1 Mo. & 
 R. 341 ; Accounts, Sinclair, v. Baggaley, 4 M. & W. 313 : Letters, Hunt v. Massey, 5 B. & 
 Ad. 902 ; Goodtitle d. Baker v. Milburn, 3 M. & W. 853 ; Anon, 2 Chitt. R. 294 ; Potez v. 
 GloBSop, 3 Exch. R. 191, 
 
 Wherever fraud or mistake is alleged, it may be shown that the instrument was not 
 made at the time it bears date. Breck v. Cole, 4 Sand. 79. But the instrument is pre- 
 sumed to have been executed on the day of its date. Glenn, v. Grover et al , 3 Md. 212. 
 The presumption does not arise in respect to deeds in fee unacknowledged and unattested ; 
 Genter v. Morrison, 31 Barb. 165 ; presumption where the agreement of a surety bears date 
 subsequent to the lease ; Gottsberger v. Radway, 3 Hilton 342. 
 
 (2) Pe/r Our., in Anderson v. Weston. 6 N. C. 301, 302. And see Hoare v. Coryton, 4 
 Taunt. 560 ; Wright v. Lainson, 3 M. & W. 739, 743 ; by Lord Abinger, G. B., in Sinclair 
 v. Baggaley, 4 M. & W. 318. The case of Taylor v. Kinloch (1 Stark. R. 175) is overruled 
 by these decisions. See, also, Gibson v. King, Car. & M. 458, where Alderson, B., said the 
 decision of the Court of Exchequer, in Sinclair v. Baggaley, vt supra, had been greatly 
 doubted. 
 
 (3) Edwards v. Crock, 4 Esp. 89 ; Trelawney v. Coleman, 3 Stark. R. 191 ; S. C, 1 B. & 
 A. 90 ; Wilton v. Webster, 7 C. & P. 198. 
 
 (4) M'Namara v. Gibbs, Car, & M. 412, 
 
 (5) Butler v. Alnutt, 1 Stark. R. 232. 
 
 (6) See Walter v. Haynes, R. & M. 149. 
 
 Butler V. Alnutt, 1 Stark. R. 232. And see Van Omeron v. Dowiok, 2 Camp. 44. 
 
 See Walter v. Haynes, R. & M. 149. 
 (7) Saunderson v. Judge, 2 H. Bl. 509 ; Kufh v. Weston, 3 Esp. 54 ; Dobree v. East- 
 wood, 3 C. & P. 250 ; Warren v. Warren, 1 C, M. & R. 250. A similar presumption arises 
 if a letter is delivered to a postman. Skilbeck v. Garrett, 7 Q. B. 846. But see Hawkins 
 V. Rutt, 1 Feake, 186. Post marks are evidence that the letters were in the office at the 
 
SBC. II.] And of Presumptions. 537 
 
 the usual course of private offices, that letters have been sent by the post, 
 or notices delivered, where the persons are dead, who alone could give 
 direct evidence of the fact.(l) • 
 
 In like manner, underwriters are generally presumed to know the con- 
 tents of Lloyd's Shipping List, as being a document to which, in the 
 ordinary course of business, they have access ; but this presumption will 
 not bind an underwriter, if it should appear that, owing to a false repre- 
 sentation by the assured, he did not in fact look at the list. (2) So, the 
 underwriters, upon a foreign ship, or a foreign voyage, are presumed to 
 know the usages and laws of foreign states, which affect that ship or that 
 voyage. (3) 
 
 Course of events. Where two things are proved to have been done on 
 the same day, that which ought to have been done first, will be presumed 
 to have been done so ;{4) but, where there is a doubt which took place first, 
 the party who is to act upon the assumption that they took place in a par- 
 ticular order, ought to make the inquiry. (5) 
 
 *646 ^Presumption from Possession Several presumptions are made with 
 reference to persons in possession of property. A person in posses- 
 sion of land, is prima facie presumed to be seized in fee. (6) This 
 
 times which the dates specify. R. v. Plumer, R. & R. 264 ; Fletcher v. Braddyl, 3 Stark. 
 R. 64 ; R. V. Johnson, 7 East, 65 ; R. v. Watson, 1 Camp. 215 ; Colton v. James, M. & 
 M. 276. ' 
 
 (1) See Doe d. Patteshall v. Tiirford, 3 B. & Ad. 890, 895, as to service of a notice to 
 quit. As to the effect of the course of business, in proving that letters have been sent 
 by the post, where the clerks of an office are dead, see Pritt v. Pairclough, 3 Camp. 305 ; 
 Hagedorn v. Reid, Id. 377 ; Toosey v. Williams, M. & M. 129 ; Champneys v. Peck, 1 
 Stark. R. 404. As to the effect of the like course of business, where the clerks are living, 
 see Hetheringtoh v. Kemp, 4 Camp. 193 ; Hawkes v. Salter, 4 Bing. 715. See as to the 
 mode of serving notice on the indorser by mail. Edwards on Bills and Notes, p. 601-608. 
 
 (2) Mackintosh v. Marshall, 11 M. & W. 116. 
 
 (3) Per Cur., in Young v. Turing, in error, 2 M. & Q. 593, 603. And see Noble v. 
 Kennoway, 2 Doug. 513 ; Da Costa v. Edmonds, 4 Camp. 142. As to knowledge of a 
 particular custom, where the jury have expressly negatived notice, see Milward v. Hib- 
 bert, 3 Q. B. 120. 
 
 (4) By Alderson, B., in Aikman v. Conway, 3 M. & W. 72. Ante, p. 602. ' 
 
 (5) By Lord Denman, C. J., in Castrique v. Bernabo, 6 Q. B. 500. 
 
 (6) See the cases (supra), of declarations against interest by persons in possession of 
 property, which depend on this presumption. And see Doe d. Welsh v. Langfield, 16 M. 
 & W. 497. As to presumptive right to minerals, see Rowe v. Qrenfel, R. & M. 396 ; Rowe 
 V. Brentou, 8 B. & C. 737 ; Hodgkinson v. Fletcher, 3 Doug. 31 ; of quit rent, Doe d. 
 Whittick V. Johnson, Qow, 173 : of property in mines, B. N. P. 33. See, also. Trotter v. 
 Harris, 2 Y. & J. 285, as to possession of the franchise of a ferry. Doe d. Laurie v. Dye- 
 ball, M. & M.- 346 ; S. C, 3C. & P. 610; Doe d. Harding v. Cooke, 7 Bing. 346, as to 
 possession of title in ejectment against a wrongdoer. See further, as to presumptions 
 from possession, Sutton v. Buck, 2 Taunt. 302 ; Thomas v. Foyle, 5 Bsp. 88 ; Catteris v. 
 Cowper, 4 Taunt. 547 ; Graham v. Peat, 1 Bast, 244 ; Sheriff v. Cadell, 2 Esp. 617. 
 
 Note 186. — See note 177. The mere prior possession of property, however recent, will 
 enable the occupant to recover or defend against a stranger, in ejectment, trespass, 
 trover, &c. 
 
 A plaintiff in ejectment recovered on prior possession. Doe ex dem. Carr. v. Billiard, 3 
 Mann. & Ryl. Ill ; Doe ex dem. Harding v. Cooke, 5 Moore & Payne, 181 ; Day v. Alver- 
 son, 9 Wend. 223 ; Doe ex dem. Hughes v. Dyball, 3 Carr. & Payne, 610 ; a brief posses- 
 sion by the plaintiff 's tenant ; S. C, 1 Mood. & Malk. 346; Jackson ex dem. Weidirian 
 V. Hubble, 1 Cowen's Rep. 613 ; Jackson ex dem. Murray v. Hazen, 2 John. Rep. 22 ; 
 Jackson ex dem. Duncan v. Harder, 4 John. Rep. 202 ; Allen ex dem. Harrison v. Riving- 
 ton, 2 Saund. Ill ; Jackson ex dem. Murray v. Denn, 5 Cowen's Rep. 200 ; Catteris v. 
 Cowper, 4 Taunt. 548 ; Smith ex dem. Teller v. Lorillard, 10 John. Rep. 338, 350, and cases 
 there cited at the last page. (In an action of trespass for cutting timber on plaintiff's 
 land, after plaintiff had proved title to and constructive possession of the premises, and 
 that defendant knew that plaintiff was the owner and that he was cutting upon plaintiff's 
 land ; the defendant offered to show title in a third person ; and the evidence was objected 
 to, and excluded because the defendant, being a mere intruder, did not propose to con- 
 nect himself with the title ; but it was held that the defendant might mve evidence of 
 
 Vol. L 68 
 
538 Of Presumptive Miidence, [ch. x. 
 
 *647 presumption, however, may be rebutted by a *8tronger presumption 
 i3.rising from circumstances — as, from subsequent possession by a 
 daughter, while the heif at law was living ; and it is not conclusive evidence 
 of a seizin, which can only be divested by deeds. (1) The possession of 
 personal property affords a prima facie presumption of ownership. (2) 
 Thus, although a documentary title is essential to the ownership of ships, it 
 is sufficient, in an action upon a policy, for the plaintiff to rest upon the 
 mere fact of possession, unless further proof be rendered necessary by the 
 contrary evidence being adduced. (3) So the possession, by the plaintiff, of 
 
 possession by another person by way of rebutting plaintiff's case based on a constructive 
 possession. Miller v. Decker, 40 Barb. 238.) 
 
 So in tTeap&sa giiwre, daiisum fregit. Myrick v. Bishop, 1 Hawks. 485, a case of con- 
 structive possession under a deed covering the whole ; Wendell v. Blanchard, 2 N. H. Rep, 
 456.457, overruling Wickham v. Freeman, contra, 12 John. Rep. 183 ; Brandon v. Qrimke; 
 I Nott & M'Cord, 356 ; Cutts v. Spring, 15 Mass. Rep. 135. 
 
 In trespass, as to personal property, the plaintiff was allowed to recover on possession. 
 Qelston v. Hoyt, 13 John. Rep. 861, 378. See Ougton v. Stoppings, 1 Barnw. & Adolph, 
 341, S. P. Though form of action was for the money received for the goods. And 
 Odiprne v. CoUey, 2 N. Rep. 66, 67. 
 
 So in assumpsit on the defendant's receipt of a raft for sale, which the plaintiffs found. 
 Bone v. Hillen, 1 Rep. Const. Ct. 197, 199. 
 
 So in trover on the plaintiff's possession. Rowe v. Brenton, 8 Barnw. & Cress. 737 ; 
 Pinkham v. Gear, 3 N. H. Rep. 404 ; Duncan v. Spear, 11 Wend. 54 ; Daniels v. Ball, Id. 
 57, note. But in trover, the plaintiff having shown ownership, a short possession of the 
 defendant, without the plaintiff's knowledge and acquiescence, was held no proof that 
 the property was changed. Tompkins v. Haile, 3 Wend. 406. 
 
 So, possession is ^nma/dcie sufficient to maintain an indictment for a forcible entry 
 and detainer, averring a fee in the relator (The People v. Leonard, 11 John. Rep. 504) ; 
 or on an indictment for cutting timber or wood contrary to the statute (Commonwealth v. 
 Hoover, 1 Browne's Rep. 35, Appendix); or on a claim of property in a prize court. 
 Miller v. The Resolution, 2 Dall. 5. 
 
 , So, possession of an incorporeal hereditament, e. g. an exclusive right of fishery, was 
 allowed as the ground of a plaintiff's recovery in trespass against a mere stranger. Rus- 
 sell V. Stocking, 8 Conn. Rep. 236. So of a ferry. Trotter v. Harris, 2 Younge & Jervis, 
 285. So of the joint use of a party wall. Cubitt v. Potter, 8 Barnw. & Cress. 257. 
 
 A long possession and adverse use of personal property, as for two or three years, may 
 also be shown as auxiliary evidence of title against the former owner. Bullard v. Bil- 
 lings, 3 Verm. Rep. 309. 
 
 The presumption derivable from possession is, tjiat the possessor owns absolutely. Thus, 
 possession with permanancy of the profits, or claim of title, is evidence in respect to land, 
 of a seizin in fee ; but this may be rebutted or qualified by possession or other opposite 
 evidence. Jayne v. Price, 5 Taunt. 336 ; per Savage, C. J., in Livingston v. The Peru Iron 
 Co., 9 Wend. 530, 521 ; People ex rel. Gault v. Van Nostrand, 9 Wend. 50, 53 ; People v. 
 Leonard, 11 John. Rep. 504, 510 ; Day v. Alverson, 9 Wend. 223 ; Ricard v. Williams, 7 
 Wheat. 59 ; Jackson ex dem. Sparkman v. Porter, 1 Paine's Rep. C. C. U. S. 457. 
 
 It was agreed that the defendant might defend in ejectment on a prior possession. Doe 
 ex dem. Burrough v. Reade, 8 East, 353, 356 ; Qilliland's Lessee v. Hana, Addis. 851. 
 
 It was denied that the goods can be laid as belonging to the sheriff's receiptor, in an 
 indictment for larceny, because the latter is a mere servant. Commonwealth v. Morse 
 14 Mass. Rep. 217 ; Norton v. The People, 8 Cowen, 137 ; Dillenback v. Jerome, 7 Id' 
 294, 399. 
 
 Nor has he such a possession as will maintain trover or trespass against even a wrong- 
 doer. Dillenback v, Jerome, 7 Cowen's Rep. 294 ; Ludden v. Leavitt, 9 Mass. Rep. 104 ; 
 Warren v. Leland, 11 Id. 265 ; Whittier v. Smith, Id. 211 ; Waterman v. Robinson, 5 Id! 
 803. But see Pool v. Symonds, 1 N. H. Rep. 289, contra. (The late cases hold the same 
 presumption of title to real estate from possession ; Dickinson v. Smith, 35 Barb. 102 ; 
 Hill V. Draper, 10 Id. 454 ; Hall v. MoLeod, 3 Met. (Ky.) 98 ; and title to personal property 
 (chattels) from possession ; Fish v. Skirt, 21 Barb. 833 ; and title to choses in action, i. e., 
 negotiable notes and drafts properly indorsed, is also presumed from possession ; 1 Hill 
 387 ; 1 Kern. 404 ; 4 Ad. & El. 870 ; in particular, a note payable to bearer, or to A. B. or 
 bearer, is presumptively payable to the holder ; 5 Pick. 536 ; 4 Ad. & El. 870 ; 17 Wend. 
 214, and a note payable to A. B. or order, and indorsed by him in blank, is after that pre^ 
 Bumed to bo the property of the party in possession.) 
 
 (1) Jayne v. Price, 5 Taunt. 836. As to rebutting the presumption arising from pos- 
 session, by showing that an ancestor has not conveyed by true recovery, see Doe d Smith 
 V. Pike. 8 B. & Ad. 738. 
 
 (3) Webb V. Fox, 7 T. R. 897. 
 
 (3) Robertson v. French, 4 East, 180. 
 
SBC. 11.] And of JPresumptionSi 539 
 
 an "I. O. U.," signed by the defendant, but not addressed to any one, is 
 prima facie evidence that it was given by the defendant to the plaintiff;(l) 
 In like manner, where a letter is given in evidence, with the direction torn 
 off", it will be pieaumed prima facie that it was addressed to the party who 
 produces it. (2) 
 
 There are certain -prima facie presumptions in respect to the ownership 
 of property, which seem not to have the force of rules of law, though a 
 jury are to draw the conclusion which is derived from them. Thus, the 
 ownership of a road, ad rnedium flum, vice, presumptively belongs to the 
 owiier of the adjacent land; (3) and there is t^e like pi;esumption in respect 
 of tie property and right of fishing in unnavigable rivers. (4) It is a pre- 
 sumption also, that strips of waste land, which adjoin a road, belong 
 *648 to the owner of the adjoining inclosed land, whether he be *a free- 
 holder or a copyholder, and not to the lord of the manor, unless the 
 strips communicate with open commons, or larger portions of land.(5) 
 This presumption has a reasonable foundation, since, if the road was out of 
 repair, travelers might go upon the adjacent land, which would be a reason 
 for the owner not inclosing up to the margin of th^ road. (6) In speaking 
 of this presumption, Bayley, J., has said,('?) it is very desirable, that there 
 should be one certain and definite rule applicable to all cases of this descrip- 
 tion ; and Holroyd, J.,remarked,(8) that it was of considerable importance, 
 that the prima facie presumption should be constant and uniform. The 
 presumption in question may, however, always be rebutted by evidence tend- 
 ing to raise a contrary presumption. (9) Where the lord of the manor has 
 conveyed land to A., and afterwards other land to B., and it appears that a 
 narrow strip of land passed by one or other of the conveyances, but it was 
 doubtful by which, no presumption arises in favor of A., from the fact that. 
 a strip of land lies between a highway and land indisputably comprised in 
 the conveyance to A. ;(10) for the presumption that the ownership of the 
 land extends up to the middle of the road does not apply, when the whole 
 has belonged to one party, who has granted a part to one grantee and a 
 part to the other.(ll) Lord Denman' C. J., said in this case, that he always 
 thought presumptions of this nature were put too widely. 
 
 IVesumption as to nature of tenancy. Upon proof of payment of rent, 
 in respect of premises J;hat are ordinarily let from year to year, it will be 
 presumed, especially if such payments are made quarterly, that the party 
 making the payments hold under a tenancy from year to year. (12) 
 
 (1) Curtis V. Rickards, 1 M. & G. 46, recognized in Douglas v. Holme, 13 A. & E. 641. 
 
 (2) By Tindal, C. J., in Curtis v. Hickarda, ut supra. 
 
 (3) Berry and Goodman's case, 3 Leon. 148 ; by Gibbs, C. J., in Grose v. West, 7 Taunt. 
 40. • See Hedlam v. Hedley, Holt N. P. C. 463. 
 
 (4) Hale de Jure Maris, part 1, ch. 1 ; Carter v. Murcott, 4 Burr. 3163. As to navigable 
 rivers, the presumption is that the soil is in the crown ; see the same authorities. And 
 see R. V. Landulph ; 1 M. & Rob. 393. as to the boundaries of parishes divided by a river. 
 
 (5) Doe d. Pring v. Pearsay, 7 B. & C. 304; Steel v. Prickett, 2 Stark. R. 463 ; Gi-ose v. 
 West, 7 Taunt. 40 ; Cook v. Green, 11 Pri. 736. 
 
 (6) The presumption appears not to exist where the road is defined for the first time 
 under an inclosure act. R. v. Hatfield, 4 A. & E. 165 ; R. v. Edmonton, 1 Moo. & Rob. 33. 
 
 (7) In Doe d. Pring v. Pearsay, 7 B. & C. 304. 
 
 (8) Id. As to presumptive ownership of walls, see Newcastle (Duke) v. Clark, 8 Taunt. 
 613 ; Wiltshire v. Sidford, cited 8 B. & C. 359 ; Matts v. Hawkins, 5 Taunt. 30 ; Callis on 
 Sewers, p. 74. As to presumptive ownership of trees, see Masters v. PoUie, 3 RoU. R. 
 141 ; Holder v. Coates, M. & M. 113 ; Waterman v. Soper, 1 Ld. Raym. 737 ; 3 Roll. R. 
 265 ; B. N. P. 85. Of materials of public bridge, see Hamson v. Parker, 6 East, 154. As 
 to presumptive ownership of soil in separate fishery, see Loflfl, 364 ; Vowles v. Miller, 3 
 Taunt. 138 ; Guy v. West, 3 Selw. N. P. 1318. See also Godmanchester (Bailiffs) v. 
 Phillips, 4 A. & E. 556. 
 
 (9) Doe d. Harrison v. Hampson, 4 C. B. 367. 
 
 (10) White V. Hill, 6 Q. B. 487. 
 
 (11) By Patteson, J.; Id. 
 
 (12) Bishop y, Howard, 3 B. & C. 109 ; Jackson v. McLqod, 13 Johns. 182 ; 13 Abbott's 
 
540 Of Presumptive Evidence, [ch. x. 
 
 By the Prescription Act, 2 & 3 Wm. IV, c. 71, various presumptions, 
 which juries had been ordinarily recommended, if not directed, to 
 *649 make *from modern user, as to the existence of- immemorial rights, 
 or of modern rights founded on supposed non-existing grants, have 
 been converted into positive rules of law. Previous to this act, a technical 
 effect was given to the evidence of enjoyment of certain incorporeal rights 
 for the period of twenty years, which, though in theory only presumptive 
 evidence, was in practice and effect a bar. The statute does not prevent a 
 jury from presuming a grant from possession with other circumstances, if 
 they believe one to have been actually made ; but it precludes the presump- 
 tion from possession alone for a less period of enjoyment than that pre- 
 scribed. (1) 
 
 B. 103. A tenancy from year to year will be implied in favor of the landlord against one 
 entering into possession under a parol demise, void under tlie statute of frauds. Greton 
 v. Smith, 33 N. Y. 345. But if the landlord chooses to repudiate the relation, he will not 
 be entitled to recover on the contract that would otherwise be implied in his favor ; thus 
 where the plaintiff suffered the defendants to go into possession under a verbal agreement 
 that they should have a lease for ten years, and then refused to give them such a lease, 
 it was held that the defendants were justified in abandoning the premises, and were not . 
 liable for any rent for the time they actually occupied. Qreton v. Smith, 83 N. Y. 245. 
 If the tenant remains in possession of the demised premises, his obligation to pay rent 
 continues, notwithstanding wrongful acts of the landlord impairing the value of the 
 occupation. Edgerton v. Page, 20 N. Y. 281 ; Ogilvie v. Hull, 5 Hill, 52. Under a sealed 
 lease for a term not exceeding three years, a covenant by the lessor for quiet enjoyment 
 will be implied since as well as before the revised statutes. Mayor of N Y. v. Mabie^ 3 
 Kern. 151. And see Doe d. Lord v. Cargo, 6 C. B. 90, as to how this presumption may be 
 rebutted. 
 
 (1) By Parke, B., in Bright v. Walker, 1 C, M. & E. 212. See 3 & 3 Wm. IV, c. 100, 
 Amended by 4 & 5 Wm. IV, c. 83, as to tithes. And see Fellowes v. Clay, 4 Q. B. 313. 
 
 Note 187. — See also Wolley v. Brownhill, M'Clel. 317. So fifteen years' possession of 
 a benefice was held presumptive evidence that the incumbent was regularly inducted, and 
 had read the thirty-nine articles. Chapman v. Beard, 3 Anst. 942. v 
 
 See also 3 P. Wms. 573 ; 1 Bq. Cas. Abr. 367, 368. 
 
 The cases on lights and ways, are mixed in the text. The following is a summary of 
 the cases on lights^ They relate mainly to the enjoyment of open, unobstructed, windows 
 overlooking another's land. This right is often purchased ; but though it originate in 
 temporary permission of the adjoining owner, or mere usurpation of the party claiming 
 the right, yet an enjoyment for twenty years affords presumptive evidence of an agree- 
 ment, license or grant (Lewis v. Price, 3 Williams' Saund. 175 a, 175 b, note 2 ; 1 Vin. 
 Suppl. 163; S. C, Esp. N. P. 636 ; S. C, 2 Esp. N. P. (Gould & Banks' ed. of 1811), 268; 
 Dougal v. Wilson, 2 Williams' Saund. l75 b, note 3 ; Darwin v. Upton, 2 Williams' Saund. 
 175 b, c and d ; Moore v. Rawson, 3 Barnw. & Cressw. 333, 335, 6t seq. ; Penwarden v. 
 Ching, 1 Mood. & Malk. 400) : and this though the messuage requiring the light be erected 
 somewhat within the boundary of the owner's premises ; but so near that the light is 
 sensibly diminished by a subsequent obstruction. Cross v. Lewis, 3 Barnw. & Cressw. 
 686. Nor can the inference be rebutted by evidence that the right claimed had no exist- 
 ence previous to the commencement of the twenty years. Darwin v. Upton, 3 Williams' 
 Saund. 175 b, c and d. But it may, by the reversioner showing that the acquiescence 
 was by his lessee ; for this could not be prevented by the reversioner, unless his knowledge 
 be shown, so that he could interfere ; and though it may conclude the lessee, who is not 
 incommoded, and would not naturally give notice to his landlord, it ought not to bind the 
 latter. Daniel v. North, 11 East, 373. And see also Cross v. Lewis, 2 Barnw. & Cressw. 
 686. So, that the adjoining proprietor was an infant or under coverture, or other personal 
 incapacity to grant, when the user began. So, that he was absent from the kingdom ; and, 
 therefore, ignorant of that fact, and incapable of resisting, or the party alleged to have 
 authorized the easement, had only a particular interest, as a life estate ; and could not 
 bind the reversioner. Barker v. Richardson, 4 Barnw. & Alders. 579. So a particular 
 local usage or by-law ; as in London, authorizing the stopping of adjoining lights at any 
 distance of time.» Wyngtanley v. Lee, 3 Swaust. 833. But see Bland v. Mosely, cited in 
 Alfred's Case, 9 Rep. 58. So non-user or abandonment will occasion the loss of the ease- 
 ment claimed, nor is twenty years necessary for this. Thus, pulling down a wall of 
 ancient lights, and substituting a plain wall, is enough, unless some cotemporary act be 
 done, to show an intention of resuming the former right. Moorev v. Rawson, 3 Barnw. & 
 Cressw. 333. The presumption in such case is, that the right has been relinquished as 
 needless, or released for a valuable consideration. Lawrence v. Obee, 3 Campb. 514. See 
 also 12 Ves. 265. 
 
 m 
 
SBC. II.] And of Presumptions. 541 
 
 *650 * Of public way. With respect to the presumed creation of rights of 
 way, it is to be observed, that notwithstanding the statute, the dedi- 
 cation of public ways is still a matter to be presumed by juries ; and in 
 making a presumption in such cases, numerous circumstances require to be 
 taken iato consideration, the effect of which has, in different instances, been 
 more or less clearly defined by legal authorities. The question is generally 
 affected by other stronger circumstances than mere lapse of time.(l) 
 
 The right tp enjoy light, is not absolute and unqualified in degree ; but is limited by 
 tlie extent and manner of usage ; so that one cannot demand more room for his windows, 
 or an increase of light ; and if he enlarge his window, this will not protect him from its 
 being partially covered by the adjoining building, provided the ancient quantity of light 
 yet remain to him. Chandler v. Thompson, 3 Campb. 80. See also per WiHnot, 0. J., in 
 Dougal V. Wilson, 2 Williams' Saund. 175 b, note 2. And so where the house lighted 
 was a malt-house, but was changed into a parish worli-house, requiring, and at first having, 
 more light than the qjalt-house ; a fence built so as to reduce the light to its former quan- 
 tity, was held not actionable, though it diminished the necessary light of the work-house. 
 Marsden v. Goble, 1 Camp. 320. A new trial was granted ; but not on this point. And 
 see Bealey v. Shaw, 6 East, 208, S. P., as to diverting water from a mill ; and Ballard v. 
 Dyson, 1 Taunt. 279, that a way is limited by user to the kind of carriage or passage, 
 whether by cattle, carts, &c. Jackson v. Stacey, 1 Holt's N. P. Rep. S. P. As to raising a 
 mill-dam claimed to a certain height by user for twenty years so as to flow land above, 
 beyond the user, see Stiles v. Hooker, 7 Cowen's Rep. 366 ; and other cases to this and the 
 like effect, post, notes, 188, 189. 
 
 (A right, by grant or otherwise, to easements and incorporeal hereditaments, is pre- 
 sumed from an adverse enjoyment uninterrupted for the period of twenty years. 3 Bast, 
 294 ; 11 Id. 873 ; 4 B. & Aid. 579 ; 2 Pick. 466 ; 9 Id. 251 ; 16 Id. 341 ; 8 Wend. 149. The 
 user must be under an assertion of right, with the knowledge and acquiescence of 
 the owner — strictly an adverse enjoyment. In respect to a right of way, the presumption 
 of a grant arises ; but it is one of fact for the jury. Livett v. Wilson, 8 Bing. 115 ; Hill v. 
 Crosby, 3 Pick. 466. In regard to an ancient light, the presumption is in favor of some 
 covenant or agreement not to obstruct the light. Cross v. Lewis, 2 Barn. & Cress. 638 ; 
 Moore v. Rawson, 8 Id. 333. But the English doctrine of ancient lights, whjch is of quite 
 modern origin, forms no part of our law ; it cannot be applied in the growing cities and 
 villages of this country, and has been distinctly repudiated in this State. Parker v. Foote, 
 19 Wend. 309 ; Myers v. Gemmel, 10 Barb. 537. It is not founded in principle ; one builds 
 his house on the line of his lot, opening a window so as to overlook his neighbor's land, 
 without doing any act that implies a right or control over the premises. The mere fact 
 here that the neighbor does nothing, is not such an acquiescence as can be made the basis 
 of a right grounded on adverse enjoyment. 19 Wend. 817, 318. If he choose, he may 
 build up a fence on the line so as to obstruct the light from entering the wiiidow ; Mahar 
 V. Brown, 13 Id. 261 ; or he may build along side of the house, though he has himself 
 demised it for a term, and by building on the adjoining lot does darken the windows of 
 the demised premises. Palmer v. Wetmore, 3 Sand. 316. See dictum of Vice-Chancellor 
 Sandford, 4 Sand. Ch. 464.) 
 
 (1) See B. v. Lloyd, 1 Camp. 363 ; British Museum (Trustees) v. Finnis, 5 C. & P. 460 ; 
 Rugby Charity (Trustees) v. Merryweather, 11 East, 376, n. See further as to the effect 
 of a bar, Roberts v. Carr, 2 Camp. 263, n. ; Lethbridge v. Winter, 1 Id. 268, n. ; as to 
 limited dedications, Stafford (Marq.) v. Coyney, 7 B. & C. 257 ; Woodyer v. Haddon, 5 
 Taunt. 135 ; as to the persons, whether tenants or trustees, competent to dedicate, E. v. 
 Leake, 5 B. & Ad. 469 ; Wood v. Veal, Id. 454 ; R. v. Barr, 4 Camp. 16 ; Harper v. Charles- 
 worth, 4 B. & C. 574. 
 
 Note 188. — The presumptions which respect both public and private ways, as presented 
 upon English authority, are very fully collected {post) ; and, for want of a proper head 
 here, we shall reserve the American authorities as to the former for that place ; inserting 
 now those only which relate to private ways, with the English cases on the same subject 
 reported since our author wrote ; and perhaps some others not cited by him. 
 
 In a recent Massachusetts case, a way was prescribed for in pleading, as appurtenant to 
 a wood lot ; and the prescription was maintained by proof of forty Jrears' user ; and held 
 that the way would pass as appurtenant to the lot by a conveyance neither mentioning the 
 way nor containing the usual words, " privileges and appurtenances." Kent v. Waite, 
 10 Pick. 188. 
 
 Twenty years' peaceable enjoyment or possession of a private way, confers a presump- 
 tive title. Per Lord Mansfield, C. J., in Folkes v. Chadd, 8 Doug. 343. The inference 
 from such a long user is, that the right passed to the person using it by a regular grant. 
 Livett v. Wilson, 3 Bing. 115 ; S. C, 10 Moore, 409 ; per Abbott, C. J., in Doe dem. Put- 
 land V. Hilder, 3 Barnw. & Aid. 791 ; Wright v. Freeman, 5 Har. & John. 497 ; Hill t. 
 Crosby, 3 Pick. 466 ; Commonwealth v. Low, 3 Pick. 408 ; per Wilde, J., in Coolidge 
 
542 Of Presumptive Miidence, ; [ch. x. 
 
 V. Learned, 8 Pick. 509. And evidence of the use of a' way for a sufficient length of time, 
 6. g. forty years and upwards, by the owners of a farm, and any other persons having an 
 occasion to use the way, will sustain the allegation of a presftriptive right in the owners 
 of the farm, notwithstanding it shows a right by custom in other persons. Kent v. Waite, 
 10 Pick. 138. 
 
 A town may, by user, like an individual, acq^uire a private way for itself, under peculiar 
 circumstances ; though not for the public at large. M'Clure v. Hill, 3 Bep. Const: Ct. 433, 
 434, per Cheeves, J. < j , ' ' i ' 
 
 Evidence to rebut the inference of a grant, sought to be raised, is, of course, admissible. 
 It may be shown that the usage suffered interruption (Hartwright v. Badham, 1 1 Price, 
 383, 394, 397 ; Sargent v. Ballard, 9 Pick. 251) ; or was allowed by the me^ ueglect, per- 
 mission or indulgence of the owner (per Richards, Ch. B., in Hartwright v.' Badham, 11 
 Price, 397) ; or had formed the subject of perpetual contest (Livett v. Wilson, ut supra) ; 
 or it may be accounted for on the ground of leave,' favor or otherwise, than as a claim or 
 assertion of 8ght. Per Le Blanc, J., in Campbell v. Wilson, 3 East, 294, 302 ; Lawton v. 
 Rivers, 3 M'Oord, 445 ; Hill v. Crosby, 3 Pick. 466 ; Sargent v. Ballard, ut supra. So it 
 may be shown that the party was merely allowed to pass like other neighbors, without 
 being coniined to any particular track. TurnbuU v. Rivers, 3 M'Oord, 131 ; Lawton v. 
 Rivers, 2 Id. 455, 451. So the obstruction of the way, for only oa§ year of the time, will 
 defeat it. Cuthbert v. Lawton, 3 M'Cord, 194. So it may be shown that the way began 
 short of twenty years before the trespass (the act of user) complained of (Strout v. Berry, 
 7 Mass Rep. 385) ; or short of twenty years before the action commenced. Gayetty v. 
 Bethune, 14 Mass. Rep. 49;- 53. So, that the identity of the way is not fixed ; but that the 
 user has been fluctuating and ambulatory ; changing with fields and fences (Alban v. 
 Brownsall, Yelv. 163 ; Jones T. Percival, 5 Pick. 485 ; Lawton v. Rivers, 2 M'Cord, 445, 
 451 ; Turnbull v. Rivers, lif supra) ; or has been interrupted at any time within the twenty 
 years (Odiorne v. Wade, 5 Pick. 431)'; as where the owner of the soil plowed up the way, 
 declaring that there was none, though the claimant of the way was not present. Barker 
 V. Clark, 4 N. H. Rep. 380. So where he has not used the way for a long time. Com- 
 stock V. Van Dusen, 5 Pick. 163. The right of way should have been exercised with the 
 owner's knowledge, or he cannot be affected. Sargent v. Ballard, ut supra. The public 
 use of a way for several years, for all purposes except carrying coals, is either a limited 
 dedication or no dedication at all ; and, if none, it is at most a license revocable ; and so it 
 would be trespass to carry coals along thei way, after notice from the Bwner of the soil not 
 to do so. Marquis of Stafford v. Coyney, 7 Barnw. & Cress. 357. An agreement for a way 
 by parol is a mere license, revocable at the pleasure of the grantor. Wright v. Freeman, 
 
 5 Har. & John. 467, 468. A right of way can be only by prescription or grant at the com- 
 mon law. Id. "The use, by a man, of a way to his land for less than twenty years ; when 
 his land is confiscated and granted to another, who continues the use till both make out 
 the time ; will not warrant the inference, because of the interruption by the confiscation. 
 Though it would be otherwise if the twenty years were made out by the successive enjoy- 
 ment of ancestor and heir, vendor and vendee, &c. Sargent v. Ballard, ut supra. To 
 establish a user, it may be shown; among other thiilgs, that the commissioners of high- 
 ways allowed plaintiff to perform his highway labor on the alleged road ; a slight Variation 
 of the way through a swam^; will not defeat the easement as to the part of the road actually 
 used over 30 years. Crounse v. Wemple, 29 N. Y. 540. 
 
 Non-user for a long time (probably twenty years) affords a presumption that a right of 
 way has been released or surrendered. Per Abbot, C. J., in Doe ex dem. Putland V. Hil- 
 der, 3 Barnw. & Aid. 791 ; and per Littledale, J., in Moore v. Rawson, 3 Barnw, & Cress. 
 339 ; peir Lord Erskine, C, in Hilliary v. Waller, 13 Ves. 365 ; Wright v. Freeman, 5 Har. 
 
 6 John. 467, 477 ; Hoffman v. Savage, 15 Mass. Rep. 130, 133, per Cur. Indeed, this point 
 was directly adjudged in Maryland in 1833. Wright v. Freeman, 5 Har. & John. 467, 476, 
 477. But notj if the non-user be short of twenty years. Emerson v. Wiley, 10 Pick. 810. 
 Nor if reserved or granted expressly, and so not dependent on user, would a non-user of 
 twenty years work a loss of the way. White v. Crawford, 10 Mass. Rep. 183. But see 
 Wright V. Freeman, supra, contra. So where a way had existed from 1769 to 1800 ; "but 
 after that, for more than twenty years, had not been used much, and been obstructed 
 three or four times in different years, and some wide deviations made from its original 
 course ; yet held that it was not destroyed, as it had before been perfected by twenty 
 years' possession. Cuthbert v. Lawton, 3 M'Cord, 194. Nor will the exclusive use and 
 occupancy of the land by the' owners, for agricultural purposes, destroy the claim ; for 
 this may not be inconsistent with the right of way. If the latter be entirely interrupted 
 for twenty years, that will work a bar. Wright v. Freeman, 6 Har, & John. 467, 475, 476. 
 An agreement by parol to discontinue an old way is but a license, and may be revoked. Id. 
 
 If there be a written grant, and this appear on the trial, it must be produced or other- 
 wise proved, though the user have been more than twenty years ; for perhaps the grant 
 may show a qualification of the proposed way. Boynton v. Rees, 8 Pick. 329, 333. 
 
 (A right of way given under a partition decree across lands to a wood lot, which is used 
 otily occasionally, is not obstructed by the erection of fences with bars that may be easily 
 opened ; though it is admitted that the party whose land is burdened by the easement ia 
 
SEC. n.] And of JPresumptions, 543 
 
 *651 *"With respect to the presumption of incorporeal rights from user not 
 included within the statute, many presumptions may continue to be 
 *652 formed *by juries, and will, it is conceive"d, be recommended to them 
 in deference to legal authority, and in consonance with the justice of 
 a case, though contrary to their opinion of the real facts ; as, when difficul- 
 ties are presumed for regulating the right to pews or vaults. (1) The like 
 may be said of copyhold customs, (2) and the liability to repair fences. (3) 
 Various other instances mighte be added, resting as well upon modern as 
 immemorial title. (4) 
 
 bound to furnish reasonable facilities for its enjoyment. Bakeuian v. Talbott, 31 N. Y. 
 366. What are reasonable facilities is to be determined as a question of fact. Id. ; and 
 Hemphill v. The City of Boston, 8 Cush. 195 ; Cowling v. Higinson, 4 Mees. & Wels. 345.) 
 So the lapse of time, in order to form a presumptive bar of an action to try the riglit of 
 advowBon, must be very great ; and, in general, strengthened by other circumstances. St. 
 1 Mar. Sess. 2, c. 5 ; 3 Bl. Comm. 251 ; Bedle v. Beard, 12 Rep. 4 ; Powel v. Milbank, Cow- 
 per, 108, note ; Gibson v. Clarke, 1 Jac. & Walk. 159, 162 ; 6 Ves. 673 ; per Eyre, C. B., 1 
 Jao. & Walk. 161 ; per Ld. Eldon, 8 Ves. 130, note. 
 
 (1) Rogers v. Brooks, cited 1 T. R. 431, n. ; Pettman v. Bridger, 1 Phillim. 323 ; Puller 
 V. Lane, 2 Adams, 425 ; Walter v. Gunner, 1 Hagg. 314 ; Com. Dig. tit. Eglise ; Byerley v. 
 Windus, 5 B. & C. 1 ; Mainwaring v. Giles, 5 B. & A. 360 ; Stock v. Booth, 1 T. R. 430 i 
 Griffith V. Matthews, 5 T. T. B. 296. 
 
 (2) A single entry upon the rolls may aflFord evidence from which a copyhold custom 
 may be presumed. Doe d. Mason v. Mason, 3 Wils. 63. . 
 
 (3) Boyle v. Tamlyn, 6 B. & C. 329 ; Cheetham v. Hampson. 4 T. R. 318 ;• 2 Wms, 
 Saund. 285, n. 4 ; 290, n. 7 ; Booth v. Wilson, 1 B. & A. 59 ; Churchill v. Evans, 1 T'. B, 
 529 ; Vin. Ab. tit. Fences ; Com. Dig. tit. Action on the Case for Negligence. 
 
 (4) Note 189. — Beside the several easements enumerated by our author, there are 
 various others acknowledged by the law ; and which look, for the evidence of their exist- 
 ence, to the like ground of presumption. 
 
 1. Thus we shall see directly, that a right of fishery in the land of another may arise 
 from user. 
 
 2. Again : where the acknowledged proprietors of a fishery, and their lessees, had, for 
 above twenty years, publicly landed their nets on land belonging to another, and had, at 
 various times, repaired and improved the landing place ; it was held that the jury might 
 presume a grant of the right so exercised, though there was no direct evidence in the case 
 to show that the owner of the land knew of the encroachment. Gray v. Bond, 2 Brod. & 
 Bing. 667 ; Hart v. Chalker, 5 Conn. Rep. -311, S. P. But to warrant this presumption, the 
 right m^ust be exercised by certain known persons, who can be clearly designated as taking 
 the presumptive grant, and who have exercised it not only without interruption, but exclu- 
 sively of the owner, and also accompanied such exercise with a claim of title. Otherwise, 
 and especially where there is a general usage of the country for every person to occupy 
 this and the like places, the use would more naturally be referable to some other cause than 
 a grant. The place occupied must also, like a way, be definite in its limits. Nor is it any 
 aid to the claim, that the town authorities have laid it off; for they, as such, have no 
 authority in the matter. These things were held of a landing ground for lumber on 
 the Eastern River, which had been occupied for more than twenty years by the inhabit, 
 ants of Pittson, being accessible to them through an ancient path or cartway. Bethum 
 V. Turner, 1 Greenl. 111. Yet there is no doubt that the right to a public or private 
 landing place may be sustained by plain evidence of ancient, definite and exclusive usage. 
 Id. ; Coolidge v. Learned, 8 Pick. 504, 509. Under what qualifications such evidence is to 
 be received by us, was practically and very sensibly shown by Mellen, C. J., in Bethum v. 
 Turner (1 Greenl. 115), and they are applicable to more than one description of easement; 
 "Generally speaking, the cases in the books relating to this subject, cannot be safely 
 applied to lands a great portion of which has never been improved ; where the proprietors' 
 reside at a distance ; where settlements are made on small portions of large lots, vrithout 
 the knowledge of the owners, or any claim of title on the part of the settler ; or where 
 the usages of the country are such as to coll ect people near the margin of the river, for the 
 more easy transportation or more ready sale of their lumber, and wfiere the persons thus 
 resorting have no intention to appropriate the banks of the river to any other than a 
 temporary use, on account of the facilities thus furnished. In England where the decisions 
 alluded to were made, the lands generally are under improvement, under the inspection 
 of some landlord or his agent, where any encroachment on the land, or improper appro- 
 priation of it, must be known." And see the remarks of Duncan, J., on a kindred subject, 
 in Wilson v. Stoner (9 Serg. & Eawle, 43), given also in note 190. 
 
 (The people of the state, in their corporate capacity, own the beds of all navigable 
 waters (Smith v. Levinus, 4 Sold. 472), and their title extends to high water mark (Gould 
 V. Hudson River R. Co., 2 Seld. 522) ; hence, under a deed bounding premises by a navi- 
 
544 Of J^esumptive Miidence, [ch. x. 
 
 gable river, the grantee obtains no claim of title upon which to found an adverse 
 posBession of the space between high and low water mark, and the assessment and pay- 
 ment of taxes thereon by such grantee does not estop the city holding the title from 
 asserting its right of property therein ; nor will the fencing of the premises down to low 
 water mark, accompanied with use of the same to cut sedge or catch fish thereon, be con- 
 strued an adverse possession. McFarland v. Kerr, 10 Bosw. 349. See Rose v. Klinger, 8 
 
 Watts & Berg. 178, 180.) 
 *653 *3. Eights to open and work mines ; to dig clay or soil ; or to cut or carry away 
 timber, on the land of another ; so, in the lord of a manor to make occasional 
 approvements without the consent of the commoners,'have been sustained upon the same 
 principle of long and exclusive user. A grant or reservation may be presumed, accord- 
 ingly as the circumstances point to either ; simple adverse user in the land of another, 
 inferring a grant; but if such user be continued by a former owner of the land, after hav- 
 ing conveyed to another, then a reservation. Stanley v. White, 14 Bast, 333, 336, 337, 348 ; 
 Polkad V. Hemmett, 5 T. R. 417, note a; Bateson v. Green, 5 T R. 411. Upon ground 
 somewhat similar, the Court of Errors presumed that the conveyance from a former owner 
 had excepted a drain of ten feet wide for a collect. Bergen v. Bennett, 1 Cain. Cas. Err, 1, 
 3, 18, 19. And the presumption of a release or other discharge of these and the like 
 rights (even though created by a written grant shown in evidence directly) will be gene- 
 rated by long neglect or disuse. Said of a right to cut timber and graze, per Kent, C., in 
 Ten Broeck v. Livingston, 1 John. Ch. Rep. 363. 
 
 4. Much the most important and difficult class of presumptive easements have grown 
 out of the conflicting use of running water. This, presented in the form of brooks, creeks 
 and rivers, is appropriated in a great variety of ways to domestic, agricultural and manu- 
 facturing purposes. A single and inconsidprable stream, perhaps, ranges through many 
 leagues, touching or intersecting the lands of fifty or a hundred successive proprietors, 
 affording to many of these, falls of water, and other facilities for manufacturing estab- 
 lishments. At this point the law declares that the natural purity and course and flow of 
 the stream shall not be so changed or modified by the act of one, as to injure any other 
 proprietor, or impair his natural advantages. The common wants of all must be sub- 
 served, and an advantage given to no one at the expense of any other. The civil law is 
 not more strict than our own in this respect. " One cannot do anything to make the cur- 
 rent of the water slower or more rapid, should this change be any way prejudicial to par- 
 ticular persons." Again : " although one may divert the water of a brook or of a river, to 
 water his meadows or other grounds, or for mills and other uses ; yet every one ought to 
 use this liberty so as not to do any prejudice to neighbors who should liave a like want 
 and an equal right." Dom, Supp. b. 1, tit. 8, § 3, art. 11 ; 3 Kent's Comm. (3 ed.), 441. 
 Even the strict doctrine of Pothier, cited at the last page, and slightly qualified by the 
 learned commentator, would yet seem to be literally supported by the two cases of Wil- 
 liams V. Morland, and Thompson v. Crocker, hereinafter cited. The language of the com- 
 mon law is equally pointed : " Every man has a right to have the advantage of a flow 
 of water in his own land, without diminution or alteration." Per Lord Ellenborough, in 
 Bealey v. Shaw, 6 East, 314. " The old course of the flood stream being along certain 
 lands, it is not competent for the proprietors of those lands to obstruct that old course, by 
 a sort of new water way. to the prejudice of the proprietor on the other side." Per Lord 
 Chancellor, in Meuzies v. Breadalbane, 3 Bligh (N. S.), 418. And such is the law of Scot- 
 land. Id. " A stream of water is, at first, the property of each person through whose 
 land it flows." Per Holroyd, J., in Cross v. Lewis, 3 Barn. & Cress. 686, 690. " Every 
 proprietor has an equal right to use the water which flows in the stream ; and, conse- 
 quently no proprietor can have the right to use the water to the prejudice of any other 
 proprietor. Without the consent of the other proprietors, who may be affected by his 
 operations, no proprietor can either diminish the quantity of water, which would other- 
 wise descend to the proprietors below, or throw the water back upon the proprietors 
 above." Per Sir J. Leach, Vice Chancellor, in Wright v. Howard (1 Simons & Stuart's 
 Reports, 303), in giving judgment on the very point, thus stated, " Every proprietor 
 has a right to the use of water flowing in its natural current, without diminution or 
 obstruction. No proprietor has the right to use the water to the prejudice of another. It 
 is wholly immaterial whether the party be a proprietor above or below, in the course of 
 the river ; the right being common to all the proprietors on the river, no one has a right 
 to diminish the quantity which will, according to the natural current, flow to a proprietor 
 below, or throw it back upon a proprietor above. The true test of the principle and 
 extent of the use is, whether, it is to the injury of the other proprietors or not." Per 
 Story, J., in Tyler v. Wilkinson (1837), 4 Mason, 401, declaring these positions to be sup- 
 ported by a very strong and controlling current of authority. Again : " mere priority of 
 appropriation of running water, confers no exclusive use." Id. 401. In a late case (1833) 
 in the King's Bench, the defendants, proprietors above, having appropriated most of the 
 
 water of a small stream to the use of their factory, the plaintiff, a proprietor below, 
 *654 afterwards requiring for his own use the water thus diverted, for *some works of 
 
 his, erected subsequent to the defendant's works, brought his action, showing that 
 the previous appropriation of the water above, impaired the use of his works now newly 
 
SEC. II.] And of IVesumptions. 545 
 
 set up below ; a full and adequate supply of water not being afforded. A verdict being 
 given for the defendants, by the Erection of the judge, on the authority of what 
 was said by some of the judges in Williams v. Morland (sitpra), upon a motion for a new 
 trial, the English cases and dicta were fully gone into on the argument ; and the court 
 took time for advisement. They finally granted a new trial, after reading, as their own 
 opinion, that of Leach, V. C, above stated ; and added : " We all agree in the judgment 
 thus delivered ; and upon the authority of that decision, and the reasoning of the learned 
 judge, we are of opinion that the defendants did not acquire a right, by their appro- 
 priation, against the use which the plaintiff afterwards sought to make of the water." 
 Mason v. Hill and others, 3 Barnw. & Adolph. 304. The same point was solemnly decided 
 by the Supreme Court of New Hampshire, two years before (1830), saying : " Every man 
 has a right to the use of the water flowing in a stream through his own land ; and if 
 any one divprt the water from its natural channel, or throw it back, so as to deprive him 
 of the use of it, the law will give him redress." Qilmau v. Tilton, 5 N. H. Kep. 331 ; 
 King v. Tiffany, 9 Conn. Rep. 153, S. P. The Supreme Court of New York have recently 
 placed this doctrine on the plainest and strongest ground. The defendant having, on his 
 side of the stream, a large surplus of water for his mills, the plaintiff, who had not enough, 
 claimed the right to divert a portion, but no more than was necessary, to his mill on the 
 other side, leaving still sufficient for tlie defendant, with a tight dam, and prudent use of 
 the remaining water. For this purpose, the plaintiff erected a dam, above the defendant's 
 mills. The defendant tore away the dam ; and for that the action was brought. The court 
 held, that the action was not sustainable. They say, " the defendant was entitled to all 
 the natural advantages which the place he occupied afforded him. We cannot take from 
 one party a right for the sake of the coni)emenc6 of another. A person through whose 
 farm a stream naturally flows, is entitled to have the whole pass through it, though he 
 may not require the whole, or any part of it, for the use of machinery. Upon any otlier 
 principle, this right to the stream, which is as perfect and indefeasible as the right to the 
 soil, would always depend upon the use, and the party who did not occupy the whole for 
 special purposes, would be exposed to have the same diverted by his neighbor above 
 him, without remedy." Crooker v. Bragg, 10 Wend. 260 ; and per Nelson, J., who deliv- 
 ered the opinion of the court, 264, 265. Many other cases are directly or remotely to the 
 same effect. King v. Tiffany, 9 Conn. Rep. 163 : Weld v. Hornby, 7 East, 195 ; per Hale, 
 J., in Cox V. Mathews, 1 Veutr. 337 ; Prescott v, Phillips, cited a/rg. in Bealey v. Shaw, 6 
 East, 313 ; S. C. 3 Bv. Poth. 136 ; Beissell v. ShoU, 4 Dall. 311 ; Colburu v. Richards, 13 
 Mass. Rep. 420 ; Cook v. Hull, 3 Pick. 269 ; Brown v. Best, 1 WUb. 174 ; Gardner v. New- 
 burgh, 2 John. Ch. Rep. 162, 164 ; where the ancient authorities are cited by Kent, C. ; 
 Belknap v. Belknap, Id. 463 ; Merritt v. Parker, 1 Coxe's Rep. 460, 466 ; Coalter v. Hunter, 
 4 Rand. 58; Hammond v. Fuller, 1 Paige, 197; Hutchinson v. Coleman, 5 Halst. 74, 78 to 
 81, p-r Ford and Drake, J's ; Campbell v. Smith, 8 Halst. 139, 149 ; Barron v. Baltimore, 1 
 Am. Jurist, 203 ; 3 Kent's Comm. 439, (3d ed.) ; Id. 446, 447 ; Shury v. Piggott, 3 Bulstr. 
 389, per Whitlock, J. ; Bent v. Wheeler, 3 Dane's Abr. 16 ; Eeid v. Gifford, Hopk. 416 ; 
 Anthony v. Lapham, 5 Pick. 175 ; Sackrider v. Beers, 10 John." 341 ; Williams v. Gale, 3 
 Harr. & John. 331 ; Howell v. M'Coy, 3 Rawle, 356 ; Jennings v. Sherwood, 8 Conn. Rep. 
 133 ; Sumner v. Tileston, 7 Pick. 198 ; Wilson v. Myers, 4 Hawks. 73 ; Qavit's Adm'rs v. 
 Chambers, 3 Hamm. Rep. 495. 
 
 The reader's attention should be more particularly turned to the late case of King v. 
 Tiffany, cited supra, from 9 Conn. Rep. 162, where the leading opinion, per Williams, J. 
 (163 to 170), ably sustains and clearly expresses the above doctrines. The defendant 
 raised his dam below ; at first it did not affect the plaintiffs wheel above ; but the latter 
 having occasion to lower his wheel, the backwater from below then clogged it. Held, 
 that an action lay. 
 
 Such, prima facie, are the rights of riparian owners ; and we have been thus particular, 
 because it is not to be disguised that the doctrines of exclusive right founded on mere 
 priority of appropriation, received, at one time, strong comitenance from dicta of learned 
 judges, if not by direct adjudication. Bealey v. Shaw, 6 East, 308, 311, 316 to 319 ; Wil- 
 liams V. Morland, 3 Barnw. & Cress, 919 ; per Holroyd, J., in Saunders v. Newman, 1 
 Barnw. & Aid. 361, 363 ; per Kent, C, in Van Bergen v. Van Bergen, 3 John. Ch. Rep. 
 .388 ; Hatch v. Dwight, 17 Mass. Rep. 389 ; Biglow v. Newell, 10 Pick. 348. And 
 *655 in the anxiety of courts to maintain the concurrent *erection and use of mills, the 
 claim to the natural flow seemed to rest on very uncertain ground. See Piatt v. 
 Johnson, 15 John. Rep. 315 ; and Merritt v. Brinkerhoff, 17 Id. 306 ; Palmer v. Mulligan 
 3 Cain. Rep. 307 ; Martin v. Biglow, 3 Aik. 184. 
 
 Priority of appropriation, it seems, is recognized as securing an exclusive right in mill 
 owners, by a positive law of Louisiana. The first erected mill takes an adequate supply 
 of water from above, and is entitled to be kept clear of back water from below, upon the 
 mere circumstance of its being first erected. Aside from this positive provision, the law 
 of that State would be the same as the common law. Boatner v. Henderson, 5 Mart Lou 
 Bep. (N. S.), 186, 188 to 190. 
 
 No doubt that, in the exercise of the common right, the water above and below must 
 be more or less affected, as by diminution of quantity, evaporation, absorption retarda- 
 VoL L 69 
 
546 <y I*resumptive Mjidence, ■ [ch. x. 
 
 tion, acceleration, &c. But these things are to he tolerated, so long as they ■work no 
 mischief. Per Story, J., in Tyler v. Wilkinson, vbi swpra; Brown v. Best; 1 Wils. 174 ; 
 Weston V. Alden, 8 Mass. Rep. 136 ; Bent v. Wheeler, 3 Dane's Abr. 16. The moment 
 mischief ensues to another, an action lies ; as if it injure the banks below (Williams v. 
 Morland, 3 Barnw. & Cressw. 910) ; or throw back the water upon the plaintiff's wheel. 
 Saunders v. Newman, 1 Barnw. & Aid. 358. But a small, an imperceptible or insensible 
 injury (as it is variously expressed), arising from the use of the water, is said not to form 
 the ground of an action ; for de minimis non curat lex. Alder v. Savill, 5 Taunt. 454 
 . gemb. Quere. 3 Kent's Comm. (3 ed.) 440, 441 ; per Story, J., in Tyler v. Wilkinson, iibi 
 mpra; Palmer v. Mulligan, 3 Cain. Eep. supra; Piatt v. Johnson, swpra; Merritt v. 
 Briiikerhoffi supra ; Weston v. Alden, 8 Mass. Rep. 136 ; Bent v. Wheeler, 3 Dane's Abr. 
 16 ; Alexander v. Kerr, per Gibson, Ch. J., 3 Rawle, 88, 89. In the latter case, Gibson, C. 
 J., sugg'estg that the distinction lies between the injury being proximate or remote. If 
 the former, an action lies for any change in the state of the stream ; for it directly touctes 
 and acts on another's property ; but consequences, though great, if remote and affecting 
 the stream generally, and perhaps greater numbers, are to be tolerated ; as where the 
 injury arises from the necessary' consumption, evaporation, or an irregularity in the flow 
 by retention. He cites Shrunk v. The President, &c. of the Schuylkill Navigation Com- 
 pany (14 Serg. & Rawle, 71, 74), which was an action for obstructing the passage of fish 
 by a dam. Large rivers are, however, pubUo property in Penn&ylvania, even above the 
 flow of the tide. See infra. Yet several of these last cited cases appear to present real 
 substantial injuries, which it would seem difficult to get over within the modern cases 
 there cited. 'The injury was obvious in Piatt v. Johnson (supra), where the upper mill 
 occasionally dammed back the water, and by checking the flow, stopped the lower mill for 
 days. The safer rule would seem to be, as laid down by a well considered modern case, 
 that if the plaintiff sustains the slightest perceptible inconvenience, as by throwing back 
 the water upon his wheel at high flood only, though in a trifling degree, the action lies. 
 The court say, "We do not see how he can be refused his compensation because his 
 damage was small ; and we should feel at a loss to fix the amount of injury above which 
 there should be a right of action, and below it none." Thompson v. Crocker, 9 Pick. 59, 
 61. The above case of Shrunk v. The President, &c., of the Schuylkill Navigation Com- 
 pany, certainly goes very far to establish the distinction set up by Gibson, Ch. J., supra, 
 in Alexander v. Kerr. The same distinction was much considered and greatly qualified, 
 in Lady Hamilton v. The Marquis of Donegal, 3 Ridgw. Irish P. C, 367 to 338. The 
 case passed from the Court of Exchequer, where it was originally tried, through the 
 Court of Exchequer Chamber, and thence to the House of Lords. The distinction finally 
 settled was, that the ordinary means of catching fish in a lower fishery, as by nets, rods, 
 &c., though it diminish the value of the fishery above, shall not be considered an injury ; 
 but if by erections below, the fish be prevented from going up, this is an injury for which 
 an action lies. See pp. 338, 334, 325, where the Lord Chancellor states the riglits of the 
 two owners very clearly,* The two conflicting fisheries were on the river Bonn, and 
 extended through several counties. And note; this case may not directly conilict with 
 the above Pennsylvania cases last referred to; for the river Bann here in question is 
 treated as private property in respect to the fisheries. Otherwise, we have noticed, as to 
 the Schuylkill. Per Tilghman, Ch. J., 14 Serg. & Rawle, 78, 79. And see ante, note 177. 
 
 It is safe to say that a mere theoretical injury shall never be a ground of action. 
 Thompson v. Crocker, supra. 
 
 Yet, where the ground of one man is flooded by another, though it be in the least pos- 
 sible degree, the law implies damage ; and in an action, nominal damages, at least, 
 *656 must be given. *Pastorious v. Fisher, 1 Rawle, 27, 38, and Alexander v. Kerr, 
 cited at the last page by Gibson, J. The last case (reported 3 Rawle, 83), is very 
 strong. The owner above had acknowledged the flow to be beneficial to him, and stood 
 by silently and seen the mill below sold, without uttering a word of complaint; yet he 
 was allowed his action. See per Gibson, Ch. J., Id. 88, 89. 
 
 As to the rights of repair by one of two men, owning each his mill at each end of a 
 common dam, see Boyntou v. Rees, 9 Pick. 538 ; and that one must not use water at his 
 mill above, to which he has right, wantonly, unnecessarily, and with intent to injure the 
 proprietor's mill below, see Twiss v. Baldwin, 9 Conn. Rep. 291, 305, 306, et aeq. 
 
 The above arrangement of authorities having enabled us to see (and, we trust, clearly) 
 what are, prima facie, the common rights of various settlers on the same stream, and 
 to what extent they may be exercised with impunity, it follows that if any one would go 
 beyond this, he must have the assent of those who are xaterested. This may be by grant 
 or license ; and even a parol license is good, if not revoked before the party avails himself 
 of it ; such an executed license, even in the land of another, being (as is said) not within 
 the Statute of Frauds. See 8 Kent's Comm. (2d ed.) 453, 453, and the oases there cited. 
 
 But what is more directly material to the head of evidence upon which we are anno- 
 tating ; almost every one of the cases above cited in respect to the use of water, agree, in 
 the very next breath, that an exclusive adverse enjoyment of the water in any particular 
 manner, for twenty years (or other time limiting ejectments in the kingdom or state where 
 the question arises, Alexander v, Korr, 3 Rawle, 88, 89), raises the presumption of a grant 
 
SEC. n.] And of Presumptions. 547 
 
 or license. And here it makes no difference to what eiteat, or in what manner such 
 exclusive use may injuriously affect others, whether by corrupting, impounding, crossing, 
 diverting, or damming the water ; unless, indeed, as we shall hereafter see, the act amount 
 to a public nuisance. To this there are many cases beside those already ' mentioned. 
 Pinch V. Eesbridgef, 3 Vern. 390 ; S. C, by the title of Ld. Guernsey v. Rodbridges, Gilb. 
 Eq. Rep. ; Bush v. Western Pree. Ch. 530 ; Balston v. Bensted, 1 Campb. 468 ; Belknap 
 V. Trimble, 8 Paige, 577; Stiles v. Hooker, 7 Cowen's Rep. 267; Cook v. Hull, 3 Pick. 
 369 ; Striekler v. Todd, 10 Serg. & Rawle, 63, 68 ; per Rogers, J., in Read v. Goodyear, 17 
 Serg. & Rawle, 350, 858 ; Hazard v. Robinson, 3 Mason, 272 ; Manning v. Smith, 6 Conn. 
 Kep. 289 ; Bullen v. Runnels, 2 N. H. Rep. 255 ; Ingraham v. Hutchinson, 2 Conn. Rep. 
 584; and Sherwood v. Burr, 4 Day, 244, overruling Howard v. Mason, 1 Root, 537; Bald- 
 win V. Calkins, 10 Wend. 167 ; per Duncan J., in Cooper v. Smith, 9 Serg. & Rawle, 26, 
 33. (Where one proprietor of adjoining mill lots has, during a period of twenty years or 
 more, possessed and used a portion of the hydraulic property belonging to another, not 
 by license or favor, but adversely and in derogation of the rights of such other proprietor, 
 the law, upon considerations of policy and for the purpose of quieting a long possession, 
 will presume a grant from the proprietor thus intruded upon to the other, and will preclude 
 the party who has thus acquiesced from asserting the right Which he otherwise would 
 have had ; but the omission to make use of the right which belongs to him, on his own 
 land, will not prejudice him or confer any right upon an adjoining proprietor. Townsend 
 V. McDonald. 2 Kernan, 381 ; Hammond v. Zekner, 20 N. Y. 118 ; 3 Paige, '577 : 6 Id. 435 ; 
 10 Wend. 577 ; 10 Johns. 241. No acquiescence short of twenty years will diminish the right 
 or title of riparian owners. Haight v. Price, 21 N. T. 241. A reservation in a grant of a 
 water privilege, of so much water " as is necessary for the use of a forge and two black- 
 smith's bellows," limits the quantity of the water, but does not restrict its use to the object 
 specified ; and if it did, the assertion and exercise of the right' for more than twenty years 
 to use it for other purposes is enougb to establish the right so to use it. Olmsted v. 
 Loomis, 5 Seld. 433. This construction is beneficial to the party reserving the right, 
 without beiag oueroua to the grantee ; and this rule of construction has been adopted in 
 other cases. Cromwell V. Selden, 3 Comst. 253 ; on motives of public policy. " Ashley v. 
 Peaae, 18 Pick. 268. 
 
 A party who establishes an artificial' channel and then conveys premfges adjoining, 
 Canftot afterwards break up the artangement and so diminish the value of the premises 
 conveyed. Lampman v. MHks, 21 N. Y. 505. Parties owning to the centre of a stream 
 have a right to insist that the water be allowed to flow in its natural channel. Corhing 
 V. Troy Iron & Nail Factory, 34 Barb. 485.) 
 
 Let us see a few illustrations. One was where the watercourse had run through the 
 defendant's to the plaintiff's land for sixty years, but was then diverted by a sluice. Bush 
 V. Western, Prec. Ch. 530. And the plaintiff' having a watercourse cut through another's 
 ground, where the water ran in pots for more than twenty years; and it being threatened 
 to break it up (Lord Guernsey v. Rodbridges, ut gwpra), it was said by the Lord Chancel* 
 lor (Gilb. Eq. Rep. 4) : " Suppose two men front a river ; each has not his own ground 
 only, but the other's between him and the water. So they cut through each other's 
 ground for water, and this continues twenty years ; I will presume an agreement." So 
 where a spring of water has been occupied for twenty years at a given height; no adjoin- 
 ing owner has a right to cut the ground so as to diminish it. Adjudged where the water 
 for the plaintiff's bath had been let off by a stone qna,rry and drain of the defendant on the 
 adjoining lot. Balston v. Bensted, 1 Campb, 463. And see Bergen v. Bennett, gtipra. So 
 where the defendant had flowed the plaintiff's land above, by a dam below, for twenty 
 years. Stiles v. Hooker, 7 Cowen's Rep. 266; Russell v. Scott, 9 Cowen's Rep. 279. 
 Admitted in Wright v. Howard, 1 Sim. & Stu. 190, 203, per Sir J. Leach, V. C. So one 
 ' may acquire a right in the game time to diminish the quantity of water which descends 
 on the proprietor below. Admitted in Wright v. Howard, 1 Sim. & Stu. 190, 203, per Sir 
 J. Leach, V. C. So of a, right to use a spring in another's land, or to a flow of water from 
 it through the plaintiff's land, Tate v. Parrish, 7 Monroe, 825, 327. So of a right to a 
 free flow at the tail of the plaintiff's mill (Saunders v. Newman, 1 Barnw. & Aid. 258) ; 
 or a right to draw water from his flume for a fuUing mill below. Mitchell V. Walker, 2 
 Aik. 266. 
 
 But the defendant's enjoyment must be exclusive, continuous, and adverse, 30 Mich so 
 that, on a defense against a claim for land, it would satisfy the Statute of Limitations. • 
 Alternate enjoyment, the defendant now using the land for his pond, and now the plaint- 
 iff for agricultural purposes, will not raise the presumption. Shumway v. Simons, 1 Verm. 
 Eep. 63i 57. 
 
 But short of twenty years will not raise the presumption. TVler v. Wilkinson, 4 
 •657 "Mason, 401, *402; per Richardson, C. J., in Gilman v. Tilton, 5 N. H. Rep. 233, 
 And this was held even where the owner, being flowed by the water of a mill, yet 
 stood, and silently saw it conveyed to the defendant. Alexander v. Kerr, 2 Rawle, 83, 89. 
 Tet " there is no doubt that the use of water in a particular manner, for a less period 
 than twenty years, and even an interrupted use, may be evidence of a right, to be weighed 
 among other evidence, by a jury." Said per Richardson J., in Gilman v. Tilton, 5 N. H. 
 
548 Of IVesumptive Evidence, [ch. x, 
 
 Eep. 233 ; who cites 5 East, 215 ; 4 N. H. Hep. 14, 15 ; Wheaton, 109, 110, and 4 Stark. 
 Ev. 1216. 
 
 The time having fully elapsed, some cases are so strong as to make the inference a 
 presumption juris et de jure. Tyler v. Wilkinson, 4 Mason, 397. And though other 
 cases do not go so far ; but direct the matter to be left to the jury (see note 190, and per 
 Wilde, J., in Coolidge v. Learned, 8 Pick. 509) ; yet where the fact of adverse enjoyment 
 for twenty years is plain, or is tbund by the jury, the main current of the cases will be 
 found substantially to accord with Tyler v. Wilkinson. And see 3 Kent's Comm. (2d 
 ed.) 445. 
 
 After the prior occupant has enjoyed for full twenty years, in a particular mode, so as 
 to raise the presumption, he is entitled to maintain his possession to an extent commen- 
 surate with the enjoyment. Saunders v. Newman, 1 Baruw. & Aid, 258 ; Van Bergen v. 
 Van Bergen, 8 John. Ch. Rep. 282; Sherwood v. Burr, 4 Day's Rep. 244; Goodrich 
 V. Knapp, 3 Kent's Comm. 448, (2d ed.) And this extent, which is an abridgement of the 
 rights of others, must be limited by the evidence to the usage. Pesi, in text. Thus, a 
 usage to take the whole of the water for the defendant's mill, when not sufficient for 
 both his and the plaintiff's, will not justify a permanent obstruction diverting it at other 
 times. Curtis v. Jackson, 13 Mass. Eep. 507, 514. If the twenty years, diveraon be 
 above by a sluice of given dimensions, and this be enlarged so as to diminish still farther 
 the use of the proprietor below, though there be successive encroachments of that kind, 
 an action will he. The inference arising from a single encroachment by way of dimin- 
 ishing the flow of the stream below, is not that other like encroachments may be made ; 
 but the proprietor below is entitled to all the flow which remains, in its fullest extent. 
 Bealey v. Shaw, 6 East, 208 ; Tyler v. Wilkinson, 4 Mason, 397. And several cases as to 
 the use of lights and ways go on a similar ground. And this is so, although the injury 
 arise in consequence of a new purpose of the plaintiff to avail himself of his common 
 right. Wright V. Howard, 1 Sim. & Stu. 190, cited and proved per L. Tenterden, C. J., 
 in Mason v. Hill, mipra ; Oilman v. Tilton, 5 N. H. Rep. 231 ; King v. Tiffany, 9 Conn. 
 Bep. 163. The Supreme Court of New York have gone farther, and deny the common 
 use of the water by diversion, although the injury to the plaintiff be merely potential. 
 Crocker v. Bragg, 10 Wend. 260. The reason given is, because the limitation may attach 
 before the new purpose of the owner may arise. Id. 265. So as to a usage for twenty 
 years to build a dam and flow another's land above. The dam cannot, therefore, be 
 raised, and the flow enlarged. Stiles v. Hooker, 7 Cowen's'Rep. 266 ; Russell v. Scott, 
 9 Cowen's Rep. 279 ; Baldwin v. Calkins, 10 Wend. 167. And see Sumner v. Tileston, 7 
 Pick. 198. .Where the ancient usage was for the party to dam hack a stream on another's 
 land, for tfee purpose of irrigation, by loose stones and a hoar A; held that he could not 
 fasten the board by stakes. Qreenslade v. Halliday, 4 Mo. & Payne, 71 ; S. C, 6 Bing. • 
 379. Nor can one make a mill dam plainly and permanently more compact and impervious 
 to water, than the user would warrant. Shumway v. Simons, 1 Verm. Rep. 53, 56. But 
 an exclusive usage of a certain portion of water for a mill, is not confined to the single 
 mill or hydraulic establishment. It may be continued for new and additional erections, 
 or buildings and machinery of any other kind, if the usual quantum of water be not 
 increased. Per Abbott, C. J., in Saunders v. Newman, 1 Baraw. & Aid. 258 ; per Story, 
 J., in Tyler v. Wilkinson, 4 Mason, 404; Bullen v. Runnels, 2 N. H. Rep. 255 ; Belknap 
 V. Trimble, 3 Paige, 577. But see what is said in Strong v. Benedict, 5 Conn. Rep. 319, 
 220. Nor is it restricted by an occasional alteration, for the benefit of others ; for instance 
 the removal of a temporary dam above in a very dry time, by those below ; unless such 
 interruption be clearly acquiesced in by those above, who claim the presumptive right to 
 encroach. At any rate, a court of cliancery will not, upon doubtful evidence, against the 
 answer of the claimant, adjudge that he so acquiesced. Tyler v. Wilkinson, 4 Mason, 
 397, 406. Nor will an occasional gate regulating the flow under the presumptive right, 
 «. g. a gate at the head of a trench into which the water is diverted, be adopted in the 
 admeasurement of the right, unless it appear clearly to have been placed and continued 
 there for that purpose, and not merely to protect against water in the trench during 
 the progress of repairs ; and the circumstance that it varied in height from time 
 *658 to time, is. *evidence against its having been fixed by consent as the measure of 
 right. Tyler v. Wilkinson, 4 Mason, 397, 407. But permission to erect a dam for 
 a saw/iilillj is for a temporary purpose ; is terminated by the decay of the dam ; and will 
 not authorize the erection of another dam in its place. Hepburn v. M'Dowell, 17 Serg. 
 & Rawle, 383. Otherwise of a license to build permanently. Rerlck v. Kem, 14 Serg. & 
 Eawle. 267, 372, 
 
 These, and the like presumptive rights, may be conditional ; as to draw from the plain- 
 tiff's flume for a fulling mill below, the defendant doing oiue fourth part of all necessary 
 repairs of the dam (Mitchell v. Walker, 3 Aik. 266) ; and the whole may be inferred from 
 user. Id. 
 
 The presumption arising from a usage of twenty years, will not be rebiitted, though it 
 appear to have commenced when the land through which the water is derived was in the 
 occupation of a lessee, if twenty years have elapsed since the lease terminated. Finch v. 
 Besbridger, 2 Vern. 390 ; S. C, Gilb. Eq. Caa. 3, by title of Lord QueraBey v. Eodbridges, 
 
SEC. II.] And of I^-esumptions. . 549 
 
 And it seems to have been thought that ineffectual attempts, meanwhile, to prevent or 
 put an end to the watercourse, will not serve to weaken the presumption. Finch v. 
 Resbridger, 2 Vern. 390. Quere. But it may be shown that the party sought to be con- 
 cluded was, during the progress of the time, or some portion of it, incapable, by reason of 
 infancy, coverture, or other disability, of giving the necessary license, or making the grant 
 sought to be presumed. Lord Guernsey v. Rodbridges, Gilb. Bq. Rep. 3, admitted. Of 
 this, quere ; for it is denied by Story, J., that any such disability will avail. Tyler v. 
 Wilkinson, 4 Mason. 402. He says that a mode of extinguishment binding on infants, 
 femes covert, &c., la&y just as well be presumed as a grant; though he admits it stood 
 originally on this ground. He says it is now a presumptio juris et de jure, and not neces- 
 sarily resting on the presumed foundation of a grant. The case from Gilb. Eq. Rep. puts 
 it on the latter ground alone. In Bradbury v. Grinsell (2 Saund. by Williams, 175 d, e), it 
 was expressly held that a usage for twenty years, commencing and perfected by the con- 
 sent and acquiescence of the particular tenant for life, to erect and keep up a weir on the 
 river Thames, should not bind the reversioner ; and this on the ground that the tenant 
 for life had no power to grant or license the act. See post, text, and cases there cited. It 
 seems quite doubtful, therefore, whether disability, as well as the estate being out on lease, 
 would not be an answer to the claim at the present day. And see per Richardson, J., in 
 Oilman v. Tilton, 5 N. H. Rep. 233, 234. 
 
 If the enjoyment originated in a written agreement or lease, there can of course be no 
 presumption made in favor of a more extensive claim, than what the true construction of 
 the contract shows. Davis v. Morgan, 4 B. & C. 8. See, also, Rex v. Hudson, Str. 909. 
 If the party have, within fifteen (twenty) years before suit brought, acknowledged the 
 plaintiff's claim, though under a mistake of the right, the presumption of a grant is re- 
 butted. Mitchell V. Walker, 2 Aik. 266. 
 
 If the encroachment or ferection be a public nuisance (as if it be on an arm of the sea, or 
 injure the health of a whole neighborhood), no length of time will legalize it. Vooght 
 V. Winch. 2 Barn. & -Aid. 662 ; Weld v. Hornby, 7 East, 195 ; Mills v. Hall, 9 Wend. 315. 
 This question stood quite doubtful on former dicta in New Yprk (see Stiles v. Hooker, 
 7 Cowen's Rep. 266, and the reasoning of Kent, C. J., and Thompson, J., in Palmer v. Mul- 
 ligan, 3 Cain. Rep. 315, 319), though it now seems at re|t by the above direct adjudication 
 (Mills V. Hall). In the famous Wells Harbor Case, a private conflict concerning an em- 
 bankment on navigable water, which had stood twenty years. Lord Mansfield said, " The 
 length of time is clearly not a bar, or anything like a bar. It is a public nuisance, which 
 may increase every hour ; and it is nobody's business to prosecute." Polkes v. Chadd, 3 
 Doug. 343. How this may be where the public have fixed for themselves a tenn of limi- 
 tation, as has been done in New York, and whether the courts will not allow the analogous 
 bar as to encroachments, is another question. 
 
 To complete the presumptive title, the adverse enjoyment must becohtinuous and unin- 
 terrupted for the whole term. An interruption may arise by a unity of seizin and 
 possession. Thus, where A. and B. had adjoining closes ; and A., having conducted, the 
 water from B.'s close on to his own, enjoyed it in a particular manner for a less period 
 than fifteen years (the Connecticut limitation), and then conveyed his close in fee simple 
 to B. ; and B., after a few days' possession, re-conveyed it to A. ; after which A. enjoyed 
 the water in the same manner he had done before, for a period less, but Vfith the former 
 period making more than fifteen years ; held a fatal interruption, and that A. acquired no 
 right. Manning v. Smith, 6 Conn. Rep, 289. So, by an acknowledgment of the plain- 
 tiff's claim, even under a mistake of the defendant's rights (Mitchell v. Walker, 2 Aik. 
 266) ; or where the easement claimed is a right to flow the plaintiff's land, his occasional 
 use of it within fifteen (twenty) j'ears, for meadow, &;c., and once fencing it off for that 
 purpose. Shumway v. Simons, 1 Verm. Rep. 53. (An actual and continued ussr of 
 another person's land for twenty years, by overflowing the same, authorizes the presump- 
 tion of a grant ; and the user will|be[presumed to be adverse, so that the burden of showing 
 that the user was by license or permission'rests upon the owner of the premises so invaded ; 
 Hammond v. Zehner, 31 N. Y. 118. The grant is presumed from the twenty years' use of 
 the property in derogation of the rights of the owner ; Towusend v. McDonald, 2 Ken. 
 381, 391. An acquiescence by the owner for any period of time less than twenty years in 
 such user, will not justify such a presumption ; Haight v. Price, 21 N. Y. 241. The right 
 to flow the land of another, like a right of way, is an easement, which can only be created 
 by grant : and where an easement already exists, and is attached to lands, it passes as an 
 appurtenant, by a conveyance of the lands ; not so where the grantor, a non-resident 
 owner, is not presumed to know the condition of the premises ; Taber v. Bradley 18 N. Y. 
 109. In an action by the owner of a mill for injury to his water power by throwing into 
 the stream above tan bark and other materials, plaintiff may show the annual loss or 
 damage sustained by him in consequence of the injury complained of. Honsee v Ham- 
 mond, 39 Barb. 89). 
 
 A total non-user for twenty years affords a presumption either of the extinguishment 
 of the former presumptive right in favor of some other adverse right ; or where no such 
 adverse right appears, then simply that the former has been surrendered, or that it neter 
 existed. Prescott v. Phillips, 2 Bv. Poth, 136 ; per Lord Erskine, C.,4n Hillary v. Waller, 
 
650 Of JPremmptiee Moidenee, [ch. x. 
 
 *6.59 *Pre'8umption as to Act of Parliament.- — ^It has ■'been said that an 
 act of Parliament may be presumed. (1) But such a presumption 
 would only be made where the usage has been such as nothing but an act 
 of Parliament could legalize, and which has prevailed in those obscure ages 
 in which not only the records of Parliament may have been negligently 
 kept, but even the form of a Parliament is scarcely to be discerned. (2) 
 Wnere a road obstructing a navigable channel had existed ft)r so long a time 
 that the state of the channel could not be proved, it was considered that an 
 act of ParliamJent, or a writ of ad quod damnum, might be presumed, which 
 had extinguished the public right in the channel. (3). 
 
 *660 * Preswmption of grants from the erovm. Grants from the: crown may 
 be presumed ; but where such a presumption has been made, it has 
 been under particular circumstances, and after a much longer period of time 
 than has been deemed sufficient for raising the presumption of a grant from 
 private individuals. (4) - 
 
 12 Yes. 356 ; per Story, J., in Hazard v. Robinson, 3 Mason, 275, 276 ; 2 Ev. Poth, 136 ; 
 Mr. Evans' remarks on the case of Prescott v. Phillips ; 8 Kent's Cojum. 448, 449, and the 
 authorities there cited. The two last writers lean to the civil law, that mere non-user 
 would not be enough ; but some distinct act of abandonment should be done or allowed 
 by the former claimant of the easement. It has, however, been distinetly adjudged in 
 Maryland, that mere non-user for twenty years satisfies the common law ; and that on this 
 the jury should be instructed to find a release to the owner of the soil, in whatever way 
 the grant may have been shown, whether under a statute or by user. Wright v. Free- 
 man, 5 Har. & John. 467. 
 
 A unity of possession, though it generally extinguishes an easement (3 Kent's Comm. 
 (2 ed.) 449X wiU not destroy the presumptive right to the use of water. Hazard v. Eobin- 
 son, 3 Mason, 373, 377 to 379, and the cases there cited. So that where a mill and dam 
 of B., standing below A., of right flows back on A.'s mill, if A. should purchase Hie mill 
 and dam below, and sell them to C, the latter would have the same right as B. had ; for 
 the union of possession in A. would not change the rights of the lower mill. And in such 
 a case, where the right to flow the mill above was lost by a non^user (viz ; lowering the 
 dam two feet), for twenty years, and then A. purchased the lower mill, and sold it to C, 
 held that the former right to flow being severed before A. purchased, by the dam being 
 reduced, no greater right passed to C. Hazard v. Robinson, 3 Mason, 373. 
 
 And see Campbell v. Wilson, 3 East, 398, 299 ; Qoodtitle ex dem. Parker y. Baldwin, 
 11 East, 491. 
 
 As to wno may dispose of a faculty ; its diflerent kinds, qualities and incidents, and 
 presumptive evidence of a right to it, and the remedy for a violation of the right, see the 
 Ijooks more at l^rge. Corven's Case, 12 Rep. 105 ; May v. Gilbert, 2 Bulstr. 150 ; Frances 
 V. Ley, Cro. Jac. 366 ; Langley v. Chute, Sir X. Raym. 246 ; Chambre's Arg., 1 T. R. 439, 
 and per Buller, J., 1 T. R. 432 ; Mainwaring v. Giles, 5 Barn. & Aid. 356 ; 1 Lev. 71 ; 3 Id. 
 73, 44 ; Kenrick v. Taylor, 1 Wils. 336 ; Pettman v. Bridger, 3 Phillim. 324 ; Noy, 133 ; 
 per Buller, J., 5 T. R. 398 ; per Welles, J., 1 T. R. 433, note ; 1 T. R. 431, note ; Morgan 
 V. Curtis, 3 Mann. & Ryl. 389. 
 
 And see Dawson v. Puke of Norfolk, 1 Price, 351 ; Daniel v. North, 11 East, 371 ; Rex 
 V. Barr, 4 Campb. 16. And see Livett v. Wilson, 3 Bing. 115. 
 
 (1) By Lord Mansfield, C. J., in Eldridge v. Knott, 1 Cowp. 315 ; citing Co. Lit. 95 a ; 
 and see n. 4 by Harg. 
 
 (3) By Lord Denman, C. J., in R. v. Exeter (Chap.), 12 A. & E. 512, 533. 
 
 (3) H. V. Montagu, 4 B. & C. 599. See 1 Eden, 296 ; 3 Ves. 583 ; 6 Ves. 215 ; IJac. & 
 W. 63 i Lopez v. Andrews, Hayes' Conv. 11 n. 'That a private act of Parliament may be 
 presumed, see Skinner, 78 ; 13 Ves. 365. That the relinquishment of public rights is not 
 to be presumed in the same manner as that of private rights, see Vooght v. Winch, 3 B. 
 & A. 663. 
 
 ,(4) Roe V. Ireland, 11 East, 161 ; Goodtitle d. Parker v. Baldvrin, Id. 488 ; R. v. Browne, 
 cited by Lord Mansfield, C J., 1 Cowp. 110 ; Kingston (Mayor) v. Horner, Id. 103 ; Eldridge 
 v., Knott, Id. 115. See also Bedle and Beard's Case, 12 Rep. 5 ; R. v. Exeter (Chap.), 12 
 A. & B, 512 ; Bruue v. Thompson, 4 Q. B. 543 ; Jorvison v. Dyson, 9 M. & W. 540. 
 
 Note 190. — For the general doctrine and several particular instances, wherein acts of 
 Parliament, crown grants and patents, may ,be presumed in favor of long continued pos- 
 session or enjoyment, the reader may consult the following references, in addition to those 
 contained in the text. 1 Eden, 296 ; 6 East, 215 ; 2 Ves. jun. 583 ; 1 Jac. & Walk. 63 ; Id. 
 158 ; Bex v. Montagu, 4 Barnw. k Cress. 598 ; Lopez v. Andrews, 3 Mann. & Ryl. 339, 
 note a; Farrar's case, cited Skin. 78, and in Vin. Abr. Evidence Q. a. 3, pi. 11 ; Powel v. 
 Milbank, 1 T. R. 399, note d; and S. C, by the title of Powell v. Milburn, 3 Wils. 353 ; 
 and Schauber v. Jackson ox dem. Bogart, 2 Wend. 13. 
 
SEC. II. J And of Presitmptions'. 551 
 
 The exercise of corporate rights in one case for forty (Dillingham v. Snow, 5 Mass. Rep. 
 347), and another for upwards of thirty years (Stock'bridge v. Stockbridge, 12 Id. 400), 
 were held presumptive evidence of a statute incorporation ; and that the record of the 
 statute was lost or destroyed, none being found in the proper place. From a user of 
 thirty-five years, the jury may presume that a ferry had a legal origin. Trotter v. Harris, 
 a Younge & Jerv. 285. And see Ld. Pelham v. Pickersgill, 1 T. R. 660 ; Rex v. Carpenter, 
 2 Snow, 47 ; Crisp v. Bellwood, 3 Lev. 424 ; Colton v. Smith, Cowp. 47, and Rickards v. 
 Bennett, 1 Barnw. & Cress. 223. Where bars had been kept up by the owners of the land 
 for ninety years across a public highway, an extinguishment of the public right was pre- 
 sumed. Beardslee v. French, 7 Conn. Rep. 125. Under what circumstances a deed from 
 the New York commissioners of forfeitures is, or is not, to be presumed. Jackson ex dem. 
 Williams v. Miller, 6 Wend. 228. 
 
 On a proceeding by caveat, after quiet possession of sixty years, a grant of land from 
 the crown was presumed. Archer v. Sadler, 2 Hen. & Munf. 370, 376. This was accom- 
 panied with a payment of quit rents, and the fact that the records of the court where the 
 patent should have been registered were destroyed. Id. 377, 378. Sixty-one years adverse 
 possession was held conclusive against the lord proprietor of the northern neck in Vir- 
 ginia, under a patent which omitted words of inheritance. But it was denied that the 
 maxim nuSum tempus occurrit regi applied to a question between the lord and an adverse 
 possessor ; nor does the presumption of a grant appear to have been resorted to. Birch 
 V. Alexander, 1 Wash. Rep. 34. Forty years adverse possession, with some very slight 
 additional circumstances, were put to the jury in North Carolina, in 1801, as the basis on 
 which they might presume a grant from the crown ; and they found one (Den ex dem. 
 Hanks v. Tucker, Tayl. 157) ; and a similar possession of forty-seven years, connected with 
 other circumstances, was held in South Carolina, admissible to the jury as the ground on 
 which they might presume a similar grant. AUston's Lessee v. Saunders, 1 Bay, 26. 
 And so said in M'Clure v. Hill (2 Rep. Const. Court, 420, 424), and that now twenty years 
 are enough ; and held, that thirty years were sufficient against the state (Id.) ; and 
 twenty years is said to be enough against the crown. 6 East, 213. 
 
 And now in New York, the limitation of actions for real estate by the people is to 
 twenty years, except suits in respect to liberties of franchises, and suits in consequence of 
 patent or grants declared void. In the latter case, the twenty years run from the judg- 
 ment or decree of avoidance. 2 R. S. 292, 293. In Lopez v. Andrews {mpra), an act of 
 Parliament was presumed on slight evidence. 
 
 After the possession of land for ninety years, in the midst of a thickly settled coun- 
 *661 try, building *a church on part of the land, and using it for public worship, and 
 occupying a part as a burial ground, a grant from the commonwealth, of the land, 
 or at least the pre-emptive right may be presumed. Mather v. Trinity Church, 3 
 Serg. & Rawle, 509. So possession of thirty-eight years against the University of Ver- 
 mont. University of Vermont v. Reynolds' Ex'rs, 3 Verm. Rep. 532. 
 
 For the general doctrine nuUum tempus occurrit revpvbttcoi, see post, note 193, pi. 40, 
 and the cases there collected. 
 
 On the subject of presuming grants, &c., our author very properly sets out by saying 
 (p. 161, of 7th ed.), that the cases are " not within the Statute of Limitations." Some- 
 times the party is such as not to be aflFected by the statute ; as the crown, the common- 
 wealth, the state or the church, &c. ; against which, in many common-law countries, the 
 Statute of Limitations does not run. In numerous instances, the subject matter is not 
 touched by the statute ; being an incorporeal hereditament, or easement. Sometimes the 
 peculiar relation of the parties precludes the setting up of an origirud adverse possession, 
 as where they were landlord and tenant, tenants in common, &c. Sometimes the land 
 itself, though capable of an adverse possession, has not been so enjoyed ; but is affected 
 by other acts running through a long series of years, which have been deemed equiva- 
 lent to an adverse possession. In another instance, a title on paper is partially made out, 
 and the residue (a link or links in the chain) sought to be supplied by presumption aris- 
 ing from possession, &c. Sometimes a deed, in the execution of a trust, is to be presumed ; 
 sometimes a surrender of terms ; or a conveyance in pursuance of some agreement, or in 
 the execution of some legal duty ; or from some other circumstances. In all these cases, 
 adverse possession, or what is equivalent, makes the mam ingredient ; but the time may 
 overgo, or fall short of that required by the statute ; and various auxiliary circumstances 
 are j^naissible to support, or detract from the presumption. 
 
 Cases of direct, obvious adverse possession of land, &c., which come within the words 
 of the statute, cannot, of course, look to this doctrine of presumption for aid. They do 
 not require it, when the statute time has run. You then look to the statute alone which 
 bars a right, and thus indirectly makes a title by its own proper force, subject to be 
 explained away by bringing the case within some saving clause (Terrill v. Herron, 4 J. J. 
 Marsh. 516, 527) ; while to presume a grant within a shorter time than the statute allows, 
 would be an evasion. 
 
 These observations we thought necessary, in order to obviate a remark made in note a 
 
 (p. 129), to the American edition of this work, published in 1823. It is there said, after 
 
 . noticing that the text is mainly confined to incorporeal subjects, to be " certain that the 
 
552 (if Prestmiptive JSkidence, [ch. x. 
 
 presumption ar*ng from length of possession, equally applies to lands and tenements." 
 Tkat the remark was inaccurate, or must be taken with great qualification, we presume 
 will be found on careful examination. Most of the cases there cited were considered, 
 with a view to show this, by Gould, J., in Sumner v. Child, (3 Conn. Eep. 631, et seq.); 
 and in the argument of that learned judge, from pp. 627 to 632 of the report, will be 
 found a clear and able vindication of the distinctions wiih which we commence this note. 
 With him, too, all the judges agreed. See the case at large, 607 to 632. For general 
 remarks applicable to, and also sustaining th^se distinctions, other references may be 
 consulted. Per Story, J., in Eicard v. Williams, 7 Wheat. 109, 110 ; per Cheves, J., in 
 M'Clure v. Hill, 2. Rep. Const. Ct. 423, 434 ; per Our. in Clark v. Faunce; 4 Pick. 246 ; per 
 Washington, J., in Delancy's Lessee v. M'Keen, 1 Wash. C. C. Kep. 359, 360 ; per Hitch- 
 cock, J., in Courcier v. Graham, 3 Hamm. Rep. 349 ; per Sutherland, J., in Jackson ex 
 dem. Erwin v. Moore, 6 Cowen's Rep. 723, 724 ; per Carr, J., in Boiling v. Mayor, &c., of 
 Petersburg, 3 Rand. 577 ; per Lord Mansfield, Ch. J., and Aston, J., in Eldridge v. Knott, 
 Cowp. 315, 216. 
 
 In a word, courts of law and equity adopt the presumj)tion of grants, upon the same 
 principle which governs them in the presumed payment and extinction of debts and other 
 executory claims, which will be considered post, note 193. They go, it is true, in many 
 cases, on analogy to the Statute of Limitations ; but in others, upon circumstances 
 entirely clear of it. Wherever the case is proper for the statute, as it has been under- 
 stood and acted upon by the courts, nothing else can be substituted. Thus, in Sumner 
 v. Child (supra), the heir entered upon the land of the deceased ancestor, in 1786 ; the' 
 land was sold to the plaintiffs on a probate proceeding for a debt of the ancestor, in 1817. 
 The defendant claimed under the heir, who had been in possession from his father's death 
 till 1814, when the defendant obtained title from the heir, and still continued the posses- 
 sion. The heir ha^-ing entered subject to the claim of his father's creditors, of course, 
 was not in by adverse possession, so as to bring him within the statute ; and there 
 *663 *being no circumstances beside length of time and possession, from which a title 
 could be presumed, the court held that the defense must be tested by the statute 
 alone ; that to bring in the doctrine of presumption would be an evasion, by setting up a 
 kind of possession, as a defense, which the statute, in its true construction, would not 
 allow ; and the verdict, which presumed a conveyance, was set aside. 
 
 Again : in Du Belloix v. Lord Waterpark (1 Dovl. & Byl. 16), which was an action on 
 a, promissory note, more than thirty years had elapsed, intermediate the time when the 
 note fell due, and the commencement of the suit ; and the presumption of payment being 
 insisted upon as a defence, was disallowed because actions on this and the like simple 
 contracts were covered by the Statute of Limitations, wliich must govern alone. 
 
 1. The class of cases to which the doctrine of presumptive grants has been applied, for 
 want of a statute limitation against the claimant, are presented ante. These, as we men- 
 tioned above, are the crown, the state, &c. 
 
 3. The presumption in the case of easements has been considered. These are rights of 
 ways, water, air, light, &c. To which it may be proper to add the late determination, on 
 analogy to the statute, that forty years' adverse enjoyment of a fishery, in the land of 
 another, authorizes the presumption of a grant. Mehdn v. Whiting, 10 Pick. 395, 297, 
 298. 
 
 3. The relation between the parties may preclude the idea of adverse possession ; as 
 where the possession originally taken was perfectly consistent with, or in subordination 
 to the title of the plaintiff; and yet, in some few instances, the courts have, from very 
 long possession, especially if there be other circumstances, indulged the presumption of 
 an assurance. A striking instance of this is found in Doe ex dem. Fenwick v. Reed, 
 stated in the text, where the King's Bench seem to have gone farther than any other case 
 has yet gone. Birch v. Alexander (2 Wash. Virg. Rep. 376), went nearly as far ; for it 
 allowed the defendant, who claimed under the plaintiff's deceased tenant for life, to hold 
 as in fee upon an adverse possession. The tenancy for life arose from the accidental 
 omission of the word 7i,eirs in a deed ; and the land had been possessed and claimed as in 
 fee, under the grant, for sixty-one years. Jackson ex dem. Webber v. Hareen, 7 Cowen's 
 Rep. 323, S. P. But both these cases pi-ofess to go on the Statute of Limitations. 
 Similar decisions have often been made as between tenants in common, the possession of 
 each of whom is, prima fticie, consistent with the claim of the others. Jackson ex dem. 
 Krom V. Brink, 5 Cowen's Rep. 483 ; Jackson ex dem. Bratt v. Tibbits, 9 Id. 341, and the 
 cases there cited. In these cases courts will, it seems, indifferently presume an ouster, 
 and give effect to the statute, or a grant or release from one tenant in common to the 
 other. See the cases %2tp?'a, and per Aahurst, J., in Doe ex dem. Fisher v. Pressor, Cowp. 
 220. 
 
 A lease in fee, or an agreement for such a lease, may bo presumed on possession and 
 payment of rent for eighty years. Ham v. Schuyler, 4 John. Ch. Rep. 1. But aenib. not 
 on a possession and payment of the term limiting the right of entry, even though the 
 claim \>e- of an easement, as the right of taking water from another's land. Mitchell v. 
 Walker, 2 Alk. 266. But a lease forlife was presumed on fifteen years' possession and 
 strong circumstances, though the supposed lessor swore that he did not recollect giving 
 any lease. Sellick v. Starr, 5 Verm. Rep. 355. 
 
SEC. II.] Presumption of Grants. 553 
 
 4. In otlier instances, wliere, from the character and situation of the property, and the 
 want cf deeds, neither an actual or constructive adverse possession could be made out, so 
 as to let in the statute, circumstances considered equivalent have been received as the 
 ground for presuming a grant. In this way the heirs of Sir Peter Warren made out their 
 title to a tract of 14,000 acres in Montgomery county. The lands were patented to seven 
 persons in 1785. In 1736, Sir P. Warren granted leases for life to different persons, of 
 different lots in the patent, the whole of which was before surveyed and allotted. The 
 lessees entered and enjoyed. The leases asserted his (the lessor's) claim to the whole 
 tract, and he paid (jnit rent for the whole in 1737 and 1742, and died in 1753. In 1767, 
 his heirs executed leases of two other lots : and about the commencement of the Ameri- 
 can Revolution, there were one hundred settlers who had agreed with the heirs for leases ; 
 and finally two-thirds of the ti-act were held under leases from the heirs ; and their title 
 was not disputed by the settlers till after the war. The defendant entered about the year 
 1771 ; and against him the action was brought by the heirs. The defense was the want 
 of a conveyance from the patentees to Sir P. Warren. Held, that it should be presumed, 
 on the ground that the acts of Sir P. Warren and the heirs were equivalent to an adverse 
 possession of the whole tract. Jackson ex dem. GanseVoort v. Lunn, 3 John.Cas. 
 *663 109, 113 to 118, cited and considered, *6 Cowen's Rep. 733. A similair doctrine was 
 held in respect to the manor of Livingston. Jackson ex dem. Livingston v. Schutt, 
 cited and stated per Kent, J., 8 John.Cas. 113. But in the latter case the court seem to 
 go more distinctly on the facts making out an adverse possession within the statute. 
 They do not speak of i presumptive grant. This decision has been followed, upon simi- 
 lar circumstances, in the late case of Jackson ex dem. Schuyler v. Russell (4 Wend. 543). 
 There were other circumstances in this case ; but Jackson v. Lunn ipwpra), was cited and 
 approved by the chief justice ; .and the two cases do not appear to differ materially. In 
 this last case the court gb'on the grouiid that a conveyance was to be presumed. Doe ex 
 dem. Clinton v. Campbell (10 John. Rep. 479), is a farther illustration under this head. 
 See McKilinon v. Bliss, 31 N. Y. Rep. 206, 311. 
 
 This presumption, from partial possession, &c., may be rebutted by showing a deed from 
 the original owner, of other parts of the land, to persons other than the claimants, and a 
 continued possession in the grantees. Rust v. Boston Mill Corp., 6 Pick. 158. 
 
 Again : Massachusetts granted a township to her soldiers in the Canada expedition, 
 1785, and a lot was drawn to S. D. as one of them, the other lots being drawn to others 
 respectively. This lot was now, in 1830, demanded in a writ of entry, by persons deducing 
 a legal title from S. D. But as early as 1738, L. was credited in the proprietors' books 
 with taxes paid on S. D.'s lot, and so for several successive years, and down to as late as 
 1776. In 1778 he was chosen one of the committee to call a proprietors' meeting, and in 
 1770 presided as moderator, the proprietors being all this time a corporation. In 1788 the 
 corporation was dissolved, and L.'s name placed opposite to the right of S. D. in the books. 
 L. conveyed the right of S. D. by name to N. W., from whom, through various mesne 
 conveyances, the defendant derived a paper title, one of the intermediate owners and his 
 heirs, having also for several years paid taxes. Since 1738 no one had claimed the S. D. 
 lot adverse to the L. title, till ISl.*). But all this time the land was wild, and nothing of 
 pedis possessio was established. Tlie demandant's agent, in 1815, was however forbidden 
 to enter by one of the intermediate claimants xinder the L. title. All that was wanting in 
 this case was a single link connecting a chain of documental title with the patentee — a' 
 deed from hii» to L., under whom the defendant claimed, and with whom he was fully 
 connected. To show this there were the series of acts on the part of L., holding office as 
 a proprietor, paying taxes as such, his recognition as such on the b6oks, and the acquies- 
 cence for about forty years by the proprietors, and seventy years on the part of the 
 patentee and those claiming under him. The case was put to the jury on that question, 
 and they presumed a conveyance. On a motion for a new trial, the court held the facts 
 sufficiently warranted the pi-esumption, although they felt constrained, on a technical 
 objection, to repudiate the paper, where L.'s name was put opposite S. D.'s, that not being 
 sufficiently identified as a corporation paper. Farrar v. Merrill, 1 Greenl. Eep. 17. 
 
 In another case, by an order in council in the colony of New York, P. was entitled to a 
 patent of 3,000 acres ; and by a royal jjatent to one M'Kenzie, in 1765, a two hundred acre 
 lot in Washington county was recognized as belonging to P. But there was no patent to 
 him found of record. M. however entered on the lot, and was in possession under a claim 
 of title as early as 1776; and he afterwards admitted that he was present in that year 
 when the king's surveyors ran out the lot, the lines and location of which he pointed out 
 as correct. He was in possession of the lot claiming title in 1794, and afterwards died in 
 possession ; and the now claimant, his heir at law, entered as such. In 1810 an act of the 
 legislature passed, vesting all the state right to the lot in the heir. The defendant having 
 given the declarations of M. in evidence against the now claimant, his heir, in order to 
 fix the boundary and location, it was deemed material by the court to inquire into his 
 possession and title. This was upon the supposition that the title, oj at least possession 
 in him, was necessary in order to render his declarations admissible. And they held that 
 the jury might, on the evidence, say that he was in possession from 17'?6 ; and this pos- 
 session continued by his heir, would extend through thirty-four or thirty-five years at 
 Vol. I. 70 
 
554 Of Presumptipe Moidence. [ch. x, 
 
 least. Connecting tMe with the order in council, the survey by the government and the 
 recognition in M'Kenzie's patent, the court held that the jury might (on the authority of 
 the reasoning in Jackson ex dem. Gansevoort v. Lunn, 3 John. Cas. 118, and the cases 
 there cited), presume not only a patent to P., hut a grant from him to M. Jackson ex 
 dem. M'Donald v. M'Call, 10 Johns. Rep. 377, cited and considered in 6 Covfen's Rep. 724, 
 and in 3 Conn. Rep. 631, 633. 
 
 It was not necessary for the court to struggle for such a conclusion, for it was enough 
 to warrant the admission of the evidence, that the clailnant came in under M., 
 *664 whose declarations were *sought to be given in evidence while he was in posses- 
 sion. This will be abundantly seen when we come to annotate upon the 
 admissibility of declarations in evidence by ancestor against heir, and vendor against 
 vendee. But the couclusion is sustainable in more than one point of view. It was the 
 legal duty of the state to convey to P. It had contracted to do. this ; and a conveyance 
 to M. might perhaps have been presumed on the ground which calls for the presumption 
 of an Intermediate link in the title accompanied by possession, where the main part of 
 the chain i^ complete. Both patent and deed might perhaps have been put on the latter 
 ground. But, at all events, waiving both, the adverse possession was enough, within the 
 Statute of Limitations, for the purpose of the question then before the court. We make 
 these remarks because this case was cited in a former edition of this work, as warranting 
 the presumption of title to land on eighteen years' possession. Ed. of 1823, p. 129, note 
 a ; repudiated in Sumner v. Child, 3 Conn. Rep. 631, 633. Such a presumption would 
 supersede the Statute of Limitations. It will be seen that the presumption was founded 
 on a much longer possession than that act requires ; and as to the patent, on other striking 
 circumstances ; and comes within a class of cases which are far from depending merely 
 on possession and- time. 
 
 The above cases doubtless proceeded much on the total abandonment of the apparently 
 real owners of the premises, to the absolute dominion of others, for a long series of years. 
 Such, too, was another recent case. The claimant (a soldier) abandoned his wild lot ; left 
 his family and embarked in the service of the Northwest Company in Canada for twenty 
 years ; and on his return to his residence within sixty miles of the lot, forebore to assert 
 his title for eighteen years. Though the defendant failed to show anything more than 
 occasional acts of ownership through a course of thirty-five years ; not anything like an 
 adverse possession under the statute ; yet, the original letter patent being found in his 
 possession, held that the jury might have presumed a grant, Jackson ex dem. Coustan- 
 tine V. Warford, 7 Wend. 63. 
 
 A partition between tenants in common was presumed, on evidence that a lot was for 
 thirty years called and known as the several lot of a single tenant, among a general allot- 
 ment of the whole tract, no proof being given of a claim by the other tenants in common 
 to the particular lot during the whole period. Jackson ex dem. Williams v. Miller, 6 
 Wend. 238. And see Stevens v. Griffith, 3 Verm. Rep. 448. 
 
 5. Similar ground has not unfrequently been taken in respect to lands capable of adverse 
 possession, and so held ; but where for some other reason the statute did not apply. Thus 
 the possession of a daughter for fifty years, the son and heir (her brother) being her 
 neighbor, was put to the jury as a ground of presumption that the father's title was for 
 life, remainder to the daughter in fee ; and she recovered the land, as upon such a title, 
 against one who had got possession by a deed from her deceased husband. Doe dem. 
 Carr v. Billiard, 3 Mann. & Ryl. 111. In another case, a widow had rnarried, one year 
 after her dower right accrued, and resided out of the State, without interposing any 
 claim for twenty^eight years ; held, that though she continued a feme covert, the jury 
 might presume a release of her dower. Barnard v. Edwards, 4 N. H. Rep. 321. Quere : 
 and see Delancy's Lessee v. M'Keen, 1 Wash. C. C. Rep. contra, as to the effect of such a 
 disability and residence abroad. In another case, the tenant and his grantor had held the 
 land adversely for twenty years. The demandant, who lived near, took a mortgage of 
 the land from the possessors, referring for a description to a deed in which the land was 
 described as having been bought of the demandant. Held, that upon such a set of circum- 
 stances, the jury might presume a grant from the demandant. Clark v. Faunce, 4 Pick. 
 345. B. taking a deed in H.'sname; a lease and release in possession of R., subscribed 
 with H.'s name, the house of R. having been burnt, and possession for twelve or thirteen 
 years with the plaintiff's knowledge, were allowed as circumstances upon which to pre- 
 sume a deed from H. to R, Howell v. House, 3 Rep. Const. Ct. 80, 85, 86. And a long 
 and exclusive possession by one tenant, in common, with strong circumstances showing 
 an abandonment by the others, difficult to be accounted for without supposing a convey- 
 ance, were received as sufficient ground for the presumption. Hepburn v. Auld, 5 Cranch, 
 263 ; Kingston v. Lesley, 10 Serg. & Rawle, 883, 389, 390. In another case, after one lease 
 given for eighty -one years, a second and third leases were given to others by the reversioner, 
 the original lessee being out of possession, leaving the latter lessees or their assignees in 
 possession, who paid rent for a long time ; held, that a surrender or assignment of the 
 first lease might be presumed. Westropp's Lessee v. Moore, 2 Fox & Smith, 363. Again ; 
 the demandant in a writ oif right, claimed under an ancient possession ; the tenant 
 *665 had been in * possession thirty-eight years, and relied upon tliat and evidence of a 
 
SEC. n.] A Conveyance- Presumed, when. 555 
 
 patent gianted to & third person, prior to either of the possessionb. The judge 
 directed the jury to find for the tenant, on the ground of outstanding title ; but the court 
 say the question was, which had the better right ; and that it should have been left to the 
 jury to presume a conveyance to the demandant under the patent. Nase v. Peck, 3 John. 
 Cas. 138, cited and approved by Stebbins, Senator, in Schauber v. Jackson ex dem. Bogart, 
 1 Wend. 61. The acceptance of a new lease, leads to a presumption that the first was 
 surrendered ; but the act may be explained.by circumstances, and the presumption repelled. 
 Van Rensselaer's Heirs v. Penniman, 6 Wend. 569,578,579. For the general doctrine, 
 see several cases, which do not afford illustrative facts. Sullivant v. Alston, 3 Hayw, 
 128 ; Bigger's Administrator v. Alderson, 1 Hen. & Munf. 54, 60 ; Ricard v. Williams, 7 
 Wheat. 59, 109. 
 
 In a state where black color is presumptive evidence of slavery ; as in North Carolina,, 
 or New Jersey (Fox v, Lambson, 3 Halst. 375, and Gibbons v. Morse, Id. 353), the, full and 
 actual enjoyment of freedom for twenty years is su^cient to overcome such presumption, 
 and warrant the inference of an act of emancipation. Foi. v. Lambson, 3 Halst. 375. 
 
 6. Another head of presumption was incidentally aUuded to above, in considering the 
 case of Jackson ex dem. M'Donald v. McCall,, 10 John. Rep. 877. Where a change in 
 the ownership of an estate, as evinced by possession and enjoyment, has taken place at a. 
 remote period, and the title deeds both previous and subsequent are mostly forthcoming, 
 a chasm which occurs in the documental evidence is sometimes filled up by presumption. 
 
 In such a case, strong acts of acquiescence, abandonment or submission, have often been 
 made the foundation of presuming even records as well as acts in pais, in finishing out 
 the title, \vhether of corporeal or incorporeal property. 
 
 , On this ground, the phancery enrollment of^a decree for tithes, was presumed in favor 
 of the clergy against the inhabitants of London. Macdougal v. Furrier, 2 Dow & Clark, 
 135. On due proof of a will, the acting as executrix, and sales as such, with the destruc- 
 tion of the probate records by fire, were allowed as the ground for presuming a regular 
 probate. Calvert v. Fitzgerald, Litt. Sel. Cas. 388, 389, 393. A patent is evidence that 
 all the previous steps leading to it have been regular. Brown v. Galloway, 1 Peters' C. 
 C. Rep., 291 j James v. Betz,^ Binn. 12 ; Thompson v. Hauser, 2 Rep. Const. Court, 356. 
 
 On a partition made by commissioners under the statute of 1763, a balloting-book was 
 necessary to be filed and kept of record ; but, in one case, could not be found in the proper 
 ofB,ce. After long possession in severalty, other things appearing to be regular, a ballot 
 book was presumed, according to the possession and the requisite map and field-book, 
 which map and book were produced from the proper files. Jackson ex dem. Klock v. 
 Richtmyer, 13 John. Rep. 367. So of a deed from the commissioners. Jackson ex dem. 
 Gillespy v. Woolsey, ll John. Rep. 446, 456. Where the court was asked to infer a war- 
 rant for a town meeting which altered a yad, no loss, &c., of the warrant being shown, 
 they refused to ^o so, though the transaction was of thirty years' standing. The court 
 put the party to the usual proof of the warrant, which should regularly have been filed' 
 with the town clerk. It should be produced, or it's absence accounted for. Brunswick v. 
 M'Keau; 4 Greenl. Rep. 508. But semb. it may be presumed, after a long time, e. g. after 
 seventy years, the corporate act insisted on having been evinced by a corresponding pos- 
 session, and no warrant being found in the proper office. Monumoi Great Beach y. 
 Rogers, 1 Mass. Rep. 159. And where an administrator conveyed a farm subject to the 
 widow's dower, and possession of the two-thirds under the deed, was held over thirty 
 years, the presumption of regularity, in the administrator's proceedings prior to his deed, 
 was held to arise in favor of the reversion of that part which was holden by the tenant 
 in dower. In this case, most of the probate proceedings, preliminary to a sale ; viz : 
 the declaration that the estate was insolvent, the inventory and appraisal, account of the 
 administrator on the sale, and order of the court to pay 19s. Id. on' the pound, were proved ; 
 also the clerk's minute of an order of sale ; but no record could be found directing the sale 
 or the manner of the sale ; and that was presumed. Hazard v. Martin, 3 Verm. Rep 
 77,85. , _ 
 
 A deed from executors being proved, the court will presume the sale to have been puli- 
 lie : that being their duty. Turuspeed v. Hawkins, 1 M'Cord, 373. But a decree, and 
 subsequent proceedings on sale of land, furnish no evidence that an inventory was filed. 
 . Goodwin v. Sheldon, 1 Day, 313. Yet, after twenty years' possession under an 
 *666 administrator's sale, other *things being proved to have been regular, the presump- 
 tion will be that he took the oath and advertised the sale (Gray v. Gardner, 3 Mass. 
 Rep. 399) ; and this even against the heir. Id. ; Boiox v. Jenks, 7 Mass. Rep. 488. As to 
 strangers, other things being regular, the administrator's proceeding will at once be pre- 
 sumed to have been in pursuance of his authority. Knox v. Je^s, 7 Mass. Rep. 488. 
 After twenty years' possession of most of the laud in severalty, according to a partition 
 duly proved among the proprietors, the posting of advertisements, which were necessary 
 to the regularity of the proprietory meeting, may be presumed. Society for Propagating 
 the Gospel v. Young, 3 N. H. Rep. 810, 313. So after a great lapse of time, as thirty years 
 after a collector's sale of land for taxes, the regularity of tax bills, valuations, warrants, 
 &c., may be presumed from circumstances. Coleman v. Anderson, 10 Mass. Sep. 105. So, 
 that the assessors and collector were duly chosen by a legal meeting. Pejepscut Proprie- 
 
556 Of Presumptive JSvidence, [ch. x. 
 
 tors V. Ransom, 14 Mass. Rep. 145, 146. And see Id. 30, and Read v. Goodyear, 17 Serg. 
 
 6 Rawle, 350. So, that the collector was sworn, and that the assessors returned a valua- 
 tion and copy of the assessment to the town clerk. Blossom v. Cannon, 14 Mass. 177, per 
 Our. 178. So, after sixteen years from a sale under a power in a mortgage, the presump- 
 tion may be made that the notices of sale were regularly posted and published. ■ Bergen 
 V. Bennett, 1 Caines' Cases in Error, 1, 18. And after twenty years' possession of slaves, 
 subsequent to the time of removing from one state to another, it shall be presumed that 
 the proper oath of the proprietor was regularly taken, in order to prevent their manumis- 
 sion. But the presumption may be repelled by circumstances. Abraham v. Matthews, 6 
 Munf. 159. And although the requisite oath in Virginia, for conferring a capacity to 
 purchase land, will not be presumed merely from the long residence of a foreigner (the 
 oath being a matter of record) ; yet it will, if he has been uniformly possessed of the land 
 in question, or held some office, such alone as a citizen is capable of holding, which 
 requires the requisite .oath to pe taken. Semb. Blight's Lessee v. Rochester, 7 Wheat. 
 546, per Marshall, C. J." Where the alien came to South Carolina before the adoption of 
 the federal constitution, and voted in that state for several years, being an active partisan, 
 there being a local statute there authorizing naturalization summarily by oath before a 
 magistrate ; after the lapse of more than forty years, on the above and other circumstan- 
 ces, held that naturalization might be presumed. Nalle's Representatives v.. Fen wick, 4 
 Rand. 585, 586-588. Every man is presumed to be a citizen till the contrary be shown. 
 Ford, J., in Coxe v. Gulick, 5 Ha,lst. 328, 331. 
 
 So in relation to acts of a mere private nature. The leading English case on this head 
 is where an ejectment was brought by one Goodwin, who assumed to be the assignee of 
 an old lease for one thousand years. He proved a possession in himself, and those under 
 whom he claimed, for seventy years ; but could prove only one of the mesne assignments,' 
 which was dated as of a time previous to the possession shown. Of late he had been 
 ousted ; and on the trial the judge thought he should have proved all the mesne assign-' 
 ments, and nonsuited him. But the nonsuit was afterwards set aside ; the court saying 
 that it should have been recommended to the jury to presume all the assignments. Earl 
 ex dem. Goodwin v. Baxter, 3 Bl. Rep. 1238. So regular surrenders and admittances of 
 " copyhold lands, and a corresponding payment of rent for forty years being shown, the 
 previous surrenders and admittances were presumed. Doe ex dem. Eberall v. Lowe, 1 H. 
 Bl. 446. See several parallel cases. Anon., 12 Vin. 233, pi. 15 ; S. C, Lill. Pr. Reg. 556 ; 
 Rex V. Barusley, 1 Maul. & Selw. 377 ; Doe ex dem. Batten v. Murless, 6 Maul. & Sel. 
 110 ; per Lord Eldon, in White v. Foljambe, 6 Vesey, 349, 350 ; Lyford v. Coward, 1 Ver- 
 non, 195 (Raithby's edition); S. C, 3 Cas. Ch. 150 ; Green v. Proude, 1 Modern, 117 ; S. 
 C, 1 Ventr. 257, and 3 Keb. 310, by title of Green v. Froud ; Knight v. Adamson, 2 Freem. 
 106 ; Wilson v. Allen, 1 Jac. & Walk. 590 ; V\%dsworth's Case, Clayt. 26 ; Anon., 12 Vin. 
 Abr. 57, pi. 7 ; Warren ex dem. Webb v. Greenville, 3 Str. 1139 ; and per Lord Mansfield, 
 commenting on that case, in Goodtitle ex dem. Bridges v. Duke of Chandos, 3 Burr. 1072, 
 1073 ; Haines Barley's Case, 5 Mod. 310. In ejectment, the lessor of the plaintiff deduced 
 a chain of title from one of the original patentees, to the devisees of W., of one 36th part 
 of the Kayaderosseras patent. This 26th part was partitioned and set off to the devisees 
 in lots properly designated, of which they were seized in severalty in 1774. The lessor 
 of the plaintiff then produced a lease from the devisees to C, dated in 1774, and which 
 lease purported to be the foundation for a release from the devisees to C. of the one twenty- 
 sixth part. He then proved that the lease was found among the papers of the leesor, at 
 
 the time of his death in 1803, and a corresponding possession of part of the premises 
 *667 for forty years ; and of two other small parts for twenty years ; and a *releaBe of 
 
 the rents and reversion of another small part by persons claiming under C, and also 
 payment of rent for that part. The lessor of the plaintiff then deduced a regular paper 
 title from C. to others, and so on of the premises in question to himself (the lessor), Held, 
 that the lease was well proved as an ancient deed; and that the circumstances would 
 warrant the jury in presuming a release from W. to C. Jackson ex dem. Wilkins v. Lamb; 
 
 7 Cow. Rep. 431 ; 31 N. Y. Rep. 306. 
 
 It is to be collected from these cases, that, on possession and great lapse of* time, and 
 all other things being regularly made out in proof, the title shall not fail for any single 
 item ; as the assignment of a lease, deed creating a tenant to the pra?cipe, a surrender, 
 release, or other conveyance in a chain of title, letters of administration, livery of seizin, 
 surrender of a copyhold, &c.. The cases, however, seem to go much on the presumption 
 of losses from the great lapse of time, or from ineffectual search, &c. Indeed, legal pre- 
 sumptions generally apply to facts of a transitory nature, the proper evidence of which 
 is not usually preserved with care ; but not to records or public documents in the custody 
 of officers charged with their preservation, unless proved to have been lost or desfeoyed. 
 Brunswick v. M'Kean, 4 Greenl. Rep. 508. 
 
 But a limitation has recently been put upon this kind of presumption, even in respect 
 to the incidental ceremonies of conveyance. Though the feoffee had been in possession 
 seventeen years, yet the court declined to allow the presumption of livery of seizin ; 
 saying they would not admit this short of twenty years. Doe ex dem. Wilkins v. The 
 Marquis of Cleveland, 4 Mann. & Ryl. 666 ; S. C, 9 Barn. & Cress. 864. See Biden v. 
 Loveday, cited 1 Vern. 196 ; and Reea v. Lloyd, Wightw. 128. 
 
SEC. II.] In Regard to Title. 557 
 
 Similar cases of presumption are usual in the American courts. " Presumption is often 
 resorted to for the purpose of supplying defective evidence ; and, in this country, is not 
 oftener applied to any subject, than to supply defective title to lauds. It would be diffi- 
 cult to make out the title to many of the elder tracts of land in this state, by a regular 
 deduction of title deeds, from the patentees down to the present proprietors, without 
 resorting, in some stage of them to presumption. Records may sometimes be lost or 
 destroyed, ancient title papers may be defectively executed, or the proof of them from 
 lapse of time, may be impossible. Yet, in all these cases, the possession may have been 
 invariably in the person claiming the land, and in those from whom he derives his title. 
 In such cases, possession which has been long undisturbed, and which is, in general, the 
 concomitant of title, induces a belief in the mind, of title, little short of that which would 
 be produced by the adduction of the most undeniable and best authenticated evidences of 
 right. Proprietary grants, under certain circumstances, are presumed. In general, these 
 presumptions are bottomed upon the existence of certain facts, which can leave but little 
 doubt upon the rfiind of the truth of the fact which we are called upon to presume. 
 They frequently, too, derive their force and efficacy from that vigilance with which the 
 law guards ancient possessions ; which, sooner than they should be disturbed, presumes 
 that they had, in contract, a rightful commencement," Per Archer, J., in Beall's Lessee 
 V. Lynn (Maryland), 6 Harr. & John. 361 ; S. C, several times cited infra. 
 
 On a long possession, and an attempt to connect it with title, a defective and void deed 
 was given in evidence and rejected ; yet, on a train of circumstances, the jury were allowed 
 to presume a good one. Gitting's Ijessee v. Hall, 1 Harr. & John. 14, 18. But see Beall's 
 Lessee v. Lynn, 6 Harr. & John. 836. So the jury may presume, on long possession, that 
 an attorney had not exceeded his authority to convey, i. e., that the condition precedent 
 on which he was to convey, had been fulfilled. M'Connell v. Bowdry's Heirs, 4 Monroe, 
 395. And after twenty-three years' possession under a deed purporting to have been 
 made by an attorney, the power itself may be presumed. Buhols v. Boudousquie, 6 Mart. 
 Lou. Rep. (N. S.) 153. So the power of trustees, on a long possession under their deed. 
 Fitzhugh v. Croghan, 2 J. J. Marsh. 429, 437. On claim under a conveyance by lease and 
 , release, with a long corresponding possession, the release not being produced, the recital 
 of this in the release is auxiliary evidence, even against a stranger. Per Story, J., in 
 Carver v. Jackson, ex dem. Astor, 4 Pet. 83, 84 ; and in Crane v. Morris' Lessee, 6 Pet. 
 610, 611. And see Garwood v. Dennis, 4 Binn. 314. A power of attorney recited in an 
 ancient deed was presumed. Doe ex dem. Clinton v. Campbell, 10 John. Eep. 475. And 
 see Wickham v. Belknap, 12 Id. 96. A plaintiff produced a patent to B. for the premises 
 in question, dated 1774 ; then a deed for the same land from C. to F., dated 7th Novem- 
 ber, 1785, containing a recital of q, deed, also for the same land, from B., the patentee, to C, 
 and proved a possession in C, of a part of the land, until 1785, and in F. claiming 
 *668 under him, *and in the lessor of the plaintifi' claiming under F., and all claiming 
 to hold .possession under a title to the whole tract. Held, that a conveyance from 
 the patentee to C. might be presumed. Beall's Lessee v. Lynn, 6 Har. & John. 336, 853, 
 361, also stated for another purpose, infra. 
 
 Where adequate time has not run, though the defendant's possession and claim be 
 under a supposed grant, and he give in evidence also a survey, by the surveyor-general, 
 made for him, which is moral evidence of a grant ; yet the court will not allow the pre- 
 sumption of a grant until proof be given of due search for a record of the grant ; for the 
 survey pointed to records in the land ofiice, where it might be found. Some evidence 
 should therefore be given to show that it had perished by time or accident. Williams v. 
 M'Gee, 1 Rep. Const. Court, 85, 88. And where the party produces a deed, there can be 
 no presumption that it was legally acknowledged, though possession has gone with it, and 
 though, if not produced, the deed itself might have been presumed. Beall's Lessee v. 
 Lyna, 6 Har. & John. 336. 
 
 7. In all these cases, in order to found a presumption, there must not only be a posses- 
 sion, or what is equivalent, of the person in whose favor the inference is sought to be 
 drawn ; but it must be exclusive and adverse in its character ; though it need not, in all 
 cases be by actual inclosure. Per Archer, J., 6 Har. & John. 361. It must not be con- 
 sistent with the title sought to be divested. This circumstance of consistency takes away 
 all force from the evidence. The jury came to this conclusion in Doe ex dem. Penwick v. 
 Reed, cited in the text ; and there are numerous authorities to the same point. Acherly 
 V. Roe, 5 Ves. 565 ; Doe ex dem. Milner v. Brightwen, 10 East, 583 ; Cowper v. Earl 
 Cowper, 3 P. Wms, 720 ; Roe ex dem. Pellatt v. Ferrars, 2 B. & P. 542 ; Goodtitle ex 
 dem. Bridges v. Duke of Chandos, 2 Burr. 1065, 1074 to 1076 ; Doe ex dem. Harrop v. 
 Cooke, 8 Mo. & Payne, 411 ; S. C, 6 Bing. 174. Thus, flowing land by a mill (a statute 
 giving this right, subject to the payment of damages), would not, though continued for 
 twenty years, be a circumstance in favor of the presumption. Tinkham v. Arnold, 3 
 Greenl. 120. 
 
 At any rate the original consistency of relation between the possession and opposite 
 title must have been clearly dissolved, and turned into an adverse possession, for many 
 years before suit, in order to make it available as a ground of presumption. Per Lord 
 Eldon, in Fenvrick v. Reed, 1 Meriv. 125. This doctrine is illustrated in a recent case. 
 
558 Of J^esumptive JEkidence, > [ch. x. 
 
 where a tenant at will was allowed to claim the presumption against the landlord's heirs. 
 The tenant possessed fifty-seven' years after the landlord's deatj^; and it was held that the 
 jury might presume a restoration of possession to the heirs, then an ouster, and so a'titld. 
 
 Camp V. Camp, 5 Conn. Rep. 391, 301, 303, e« «eg;. 
 
 •fhe length of time during which the possession continued is not to he presumed ; "but 
 must he plainly and positively proved; Hurst's Lessee v. M'Neil, 1 Wash. C. C. Rep. 70, 
 80. And where' this is relied on, it must be so great as to create a belief that the convey- 
 ance has been actually made. Per Sutherland, J., in Jackson ex dem. Erwin vs. Moore, 6 
 Cowen's Rep. 135. ; ^er Washington,. J., in Hurst's Lessee v. M'Neil. 1 Wash. C. C. Rep. 
 80. Tlie force of possession as a ground of presumption may be repelled by many 
 circumstances. Among these are the disability of the owner as recognized by the Statute 
 of Liinitations. See Mitchell v. Owings, 3 Marsh. 816 ; Demarest v. Wynkoop, 8 John. 
 Ch. Rep. 129. Ignorance of the owner that the right existed. See Mitchell v. Owings, 
 3 Marsh. 316. Thfe distant residence of the owner (as if it be in England), ignorance of 
 the extent of the right under the Ajneriqan law ; and the srnall value of the property in 
 dispute. Hurst's Lessfee v. M'N'eil, 1 Wash. C. G' Rep. 70, 81. So where the country is 
 new, and the population is ■ sparse ; possession being attended, therefCire, with less 
 notoriety. So where the laud is among a people accustomed to lay the foundation of title 
 by taking possession without grant. Per Duncan, J., in Wilson v. Stoner, il Serg. & 
 Eawlfe, 43, 44. And, see some very sensible remarks, applicable to a like subj eot, by MeUen, 
 Ch. J., in Bethumy. Turner, 1 Greenl. 115. 
 
 Mere neglect of the owner, for any length of time, will not raise the presumption ; 
 there being no adverse possession' against him. Schauber v. Jackson, ex dem. Bogart, 2 
 Wend. 18 ; Do^ ex dem. Marston v. Butler; 3 Wend. 149. There being nd adverse 
 possession, the heirs of the true owner recovered even against an escheat grant, though 
 they or their ancestors had made no claim for one hundred years. Hall v. Gitting's 
 Lessee, 3 Har. & -John. 113, 125, 126. So where the one in possession has no title, and 
 asserts none. Eicard v. Williams, 7 Wheat, 59; 109, et feg'. And accordingly 
 *669 where one has title to the whole and possession of part, this is a possession of *the 
 whole ; and no presumption of a grant can therefore arise in favor of another who* 
 is tortiously in possession of the same land concurrently with the true owner. Hammond 
 V. Ridgley; 5 Har. & John. 815, 364, 365. The possession must be positively and unequivo- 
 cally adverse. Even possession and receiving rents, offers to sell, or partial sales effected, 
 may as well be acts of a tortious possessor, or of an agent, as of one claiming title under 
 the real owner. Delancey's Lessee v. M'Keen, 1 Wash. C. C. R. 854, 359, 368, et seg. ; and 
 distance and disabilities in the owner are to be considered and allowed (Id.) ; and an 
 sidverse character in the possession may be done away by surrender, acknowledgment of 
 the owner's title, or by a discontinuance of the possession, &c. Holtzapple's Lessee v. 
 Phillibaum; 4 Wash. C. C. Eep. 356, 363. Where a widow held a parcel of her husband's 
 estate for nearly thirty years, under a deed in fee from one of the heirs ; hald, in an action 
 by another of the heirs for an undivided portion of the same land, it could not be pre- 
 sumed that she claimed as tenant in dower, so as to raise the presumption from an 
 acquiescence of the demandant in so long possession, that there was a regular assign- 
 ment of doweri Hale v. The Ihh. of Portland, 4 N. H. Rep. 77.' A title to an undivided 
 portion of land caniot, unless in 'a very strong case; be acquired by concurrent possession, 
 or acts of ownership, while the real owner is in possession. Waldron v. Tuttle, 4 N. H. 
 Eep. 371. So of a, trustee as against his cestui giie trust, as will be seen post, note 194. 
 Per Nott, J., in Howard v. Aiken, 3 M'Oord, 468, S. P. So of a vendee in possession imder 
 ^n agreement to convey, but not having paid the purchase money. Richards v. M'Kie, 1 
 Harp.' Ch. Eep. 184. The court refused to found the presumption on a claim of construc- 
 tive possession under a deed, the description in which did not clearly include the land. 
 Gibson v. Chappel, 1 Harp. Rep. 38. Nor will a grant of land to a certain boundary? by 
 one claiming beyond it, be received as ground for a presumption that he had released aU 
 beyond, especially, where he had since conveyed land lying beyond. Jackson ex dem. 
 Van Sehaick v. Vincent, 4 Wend. 633. See also Palmer v. Hicks, 6 John. Rep. 133, 
 135 ; per Robertson, J;, in Fitzhugh v. Croghan, 3 J. J. Marsh. 436 ; and per Marshall. 
 Ch, J., 7 Wheat. 546. 
 
 So, on tte other hand, where the chain of title was complete except one deed, and cir- 
 cumstances, including long possession, were proved by the lessor of the plaintiff, from 
 which' the intermediate deed was presumable, held that a possession by the defendant in 
 order to defeat that presumption, he claiming under another and distinct title from that 
 of the lessor of the plaintiff, embracing other tracts, but merely insisting that the loca^ 
 tion of his title covered a part of what the lessor of the plaintiff claimed to be included in 
 his, did not rebut the presumption in favor of the lessor of the plaintiff. To repel tha,t 
 presumption, the defendant's i possession must have been under a claim in hostility to the 
 lessor's title, not merely in hostility to its location. Beall's Lessee v. Lynn, 6 ilarr. & 
 John. 836, 353, 354, 863, stated swpra. 
 
 _ 8. In the above and the like cases, although the court may instruct the jury upon what 
 eircumstances they are to rely in presuming a title, or the contrary (Stoever v. Whitman's 
 Lessee, 6 Binn. 418, 419), yet the jury are, then, the proper judges upon the effect of the 
 
SEC. n.] And Ptesvm,ption» in Favor of Title. 559 
 
 evidenc* ; and the court will not, ordinarily, disturb their verdict. Doe eS dem. Fenwick 
 V. Reed, cited in the text ; Livett v. Wilson, 3 Bing, 115, reported more fully; 10 Moore, 
 439 ; S. C, 3 Mann. & Byl. 339, note; Hill v. Crosby, 3 Pick. 466. 467, 468? Lopez, v. 
 Andrews, 3 Mann. & Byl. 329, note. Tilghman, Ch. J. (6 Binn. 419), says, " It is the duty 
 of the court to give an opinion, whether the foots proved will justify the presumption." 
 Qtiere. But with this agrees Crockey's Lessee v. Smith, 8 Harr. & John. 30. ' 
 
 9. Courts are in many instances very free, to presume deeds, in the execution of trusts, 
 according to the duty of the trustees ; and sometimes, to avoid great mischief, where it is 
 not their duty. Thus, to secure certain poor tenants who had been dealt hardly with by 
 the notorious Howard (Earl Stafford), who pretended that he had the legal estate when it 
 was out in trustees, and his right as cestui que trust was merely- for life, the court threa- 
 tened to presume a conveyance from the trustees to him of the legal estate, in order to 
 validate his dealings with the tenants ; and Pemberton, C. J., intimated that the ' earl 
 might, before the birth of his son, he being till that time tenant in tail on the construc- 
 tion of the conveyance, have cut off the entail. Saunders, of counsel, said the estate tail 
 was in trust, and so could not be cut off: " But my lord Chief Justice Pemberton said that 
 sure Mr. Saunders thought the court wanted brains ; but he said he knew what he said." 
 This seems to have been the intimation of a double presumption,' first that the trustees 
 had conveyed the legal estate tairto him ; and then that he had docketed it by fine 
 •670 *or recovery. But the court were very indignant, and ready to presume anything 
 against Lord Stafford, who would otherwise, it seems, have succeeded in defrauding 
 his poor tenants out of £20,000 sterling. Lady Stafford v. Llewellin, Skin. 77, 78. See 
 per Marshall, Ch. J., 7 Wheat, 546. ' 
 
 In respect to presuming conveyances from trustee to cestui que trust, the courts perhaps 
 would not ordinarily go so far as the above case. They would not presume a conveyance 
 where it would be a breach of trust (Keene ex*dem. Byron v. Dearden, 8 East, 348) ; nor, 
 in general, where it might stand indifferent whether it were a breach of trust or not ; but 
 these conveyances from trustees, where the cestui que trust is let into possession, as is 
 ordinarily the case, and also where there is a duty in the trustee to convey at a certain 
 time which has elapsed, or to convey generally, without time being mentioned.; or on a 
 certain contingency, or even where a constructive trust to convey arises (as in case of 
 laud out on trust for specific purposes, which has answered its object/ but where there is 
 no express direction to convey), will be presumed."* And here courts do not wait twenty 
 years, or any given period, after the duty arises, but the cestui que trust being in actual 
 possession, and the duty of the trustrees thus partially executed by allowing such possession, 
 the presumption is that they fulfilled the additional duty of making an actual conveyance 
 according to the trust. The cases on this head range from a very few years to fifty f but 
 it is evident, from the principle on which the decisions go, that a very short time, in case 
 of a clear trust, would readily be adopted. The rule prevails both at law and in equity. 
 Law grounds its presumption on the fact that a court of equity would compel the execu- 
 tion of such trusts ; and seems, in this instance, very nearly to follow the rule in chancery, 
 that what ought to be done shall be considered as done. England ex dem. Syburn v. 
 Blade, 4 T. R. 682 ; Doe ex dem. Bowerman v. Sybourn, 3 Esp. N. P.C., 496 ; S.C.,7 T. R. 3 ; per 
 Lord Kenyon, 8 T. R. 122 ; per Yates, J., in Jackson ex dem. Gillespy v. Woolsey, li 
 John. Rep. 456 ; Jackson ex dem. Golden v. Moore, 13 John. Kep. 513 ; Waggener v. 
 Waggener, 3 Monroe, 347, 348 ; Wilson v. Allen, 1 Jac. & Walk, 590, 600 ; per Sir W. 
 Grant, M. R., 13 Ves. 251, 352 ; Hillary v. Waller, 12 Ves. 239 ; Doe ex dem. HoweU>. v. 
 Lloyd, Peak. Ev. (5th ed.) app. 41 ; Norris' Am. ed., app. 80 ; Van Dyok v. Van Buren, 1 
 Cain. Rep. 84, 89 ; Lade v. Holford, Bull. N. P. 110; Q-oodtitle ex dem. Jones v. Jones, 7 
 T. R. 43, 45 ; Moore v. Jackson ex dem. Erwin, 4 Wend. 58 ; S. C, 6 Cowen, 706 ; Jackson 
 ex dem Bradt v. Brooks, 8 Wend. 426 ; 15 id. Ill ; 23 id. 379: (Where the legal estate ia 
 vested by a will in executors or trustees, to effectuate the purposes of the will, and a release 
 of their estate would be a breach of duty, no presumption in favor of such release can 
 be allowed. Brewster v. Striker, 3 Comst. 19.) 
 
 With several of the above cases, decided by the King's Bench, Lord Kenyon, C. J., 
 presiding and assenting, a learned writer has sought to reconcile a previous determina^ 
 tion by the judges on a trial at bar. Goodright ex dem. Grosvenor v. Swymmer, 1 Ken- 
 you's Rep. by Hammer, 385. In that case, the lessor claimed against the defendant on a 
 conveyance in trust for his ancestor, with a covenant to convey to him. contained in the 
 deed, by which the trustees declared the trust. His ancestors and himself had been in 
 possession of the estate so conveyed for more than 120 years ; yet the court refused to 
 presume a conveyance, and nonsuited the plaintiff. This case is sought to be distin- 
 guished by Mr. Matthews (on Pr. Ev. 217, 318, 219), as a conmeyanoe to trustees, without any 
 expressed or manifest object in mew, requiring the sepa/raMon of the legal and equitable inter- 
 ests. Now, with deference, where a conveyance was so plainly intended as to be expressed 
 in the deed of declaration and fortified by a covenant, the distinction, however well 
 founded it may be in principle, can hardly apply. The decision seems referable rather to 
 the unsettled notion which) the King's Bench entertained on the subject of presuming these 
 conveyances in a court of law. The decisions cited {supra) from 2 Esp.- and Term Rep. 
 had not yet been made. The case in 4 T. B. was A. D. 1792 ; in. Esp. 1796. The latter 
 
560 Of Presurrvptive Miidence, [ch. x. 
 
 was affirmed, on motion for a new trial, in 7 T. R. 3. Now, in 1788, previous to thiB 
 course of decision. Lord Keuyon had himself held at Nisi Prius that the courts of law 
 
 could not presume the exeoation of a plain trust. Godfrey ex dem. v. Hudson, 2 
 
 Bsp. Rep. 499, 500, note. Tliia was after the case cited from his own reports, now pub- 
 lished, which was decided in 1756, and just before Lord Mansfield, who broached the 
 course of decision which finally prevailed, took his seat as chief justice. See Mem., 1 
 Kenyon's Rep. 385. On the same principle, after long possession of chattels to which 
 one is entitled as distributee, the actual distribution, or setting off the property to him 
 will be presumed. Reed v. Price, 1 Harp. Rep. 3. 
 
 Conveyances should not in general be so presumed as to trench on the policy of family 
 settlements (Doe ex dem. Milner v. Brightwen, 10 East, 583) ; and yet long and important 
 acts of ownership by the cestuis que trust, on which the rights of third persons 
 *671 depend, such as granting *leases, mortgaging or selling, will induce the courts to 
 presume such conveyances as shall support them at law. This we have seen as 
 to leases in Earl Stafford's Case {supra), which was one of family settlement. Skin. 77, 
 78. And there are other cases, or at least dicta, which go upon or recognize a like prin- 
 ciple. See per Le Blanc, J., in Keene v. Dearden, 8 Bast, 266 ; and per Lord Eldon, in 
 Nouaille v. Greenwood, 1 Turn. 29. 
 
 10. It is upon the same principle, that where a mortgage debt has been paid, a recon- 
 veyance will be presumed, the mortgagee being considered a trustee for the mortgagor, 
 and bound to convey in equity ; and this especially where the mortgage deed is in the 
 hands of the owner of the property. And if it he uncertain whether payment was made 
 on or after the day, the law will presume it was at the day, in order to support the mort- 
 gagor's title. Cooke v. Soltau, 2 Sim. & Stu. 454 ; Emery v. Grocock, 6 Mad. Rep. 54 ; 
 Barnardist. Ch. Rep. 93, per Lord Hardwicke ; Wilson v. Witherby, Bull. N. P. 110. And 
 see Noel v. Bewley, 3 Sim. 103. In New York, no such presumption is necessary ; for, on 
 payment at any time, the power of the mortgage is extinguished. Jackson ex dem. 
 Roosevelt v. Stackhouse, 1 Cowen's Kep. 122. It is otherwise in Connecticut. Phelps v. 
 Sage, 2 Day, 151. 
 
 , 11. Prom this presumptive execution of trusts, the transition was easy and natural to 
 the presumed specific execution of contracts between vendor and vendee. Accordingly, 
 where there is a contract to sell land, and the vendee has entered into possession, and 
 paid the purchase money, this being also a case in which a court of chancery would at 
 once decree a specific execution, the courts of law have presumed a conveyance, and treated 
 the legal title as in the vendee. 
 
 The leading case under this head shows very long adverse possession of only a part of 
 the lauds covered by the agreement. The court extended this possession, by construction, 
 to the vacant part, and allowed the jury to presume a grant of the whole. The partial 
 possession had continued in the vendee and his family from time immemorial ; and the 
 presumption was treated by the court as a matter of course, very little comment being 
 bestowed on the question. Jackson ex dem. Kip v. Murray, Anth. N. P. 105, 107, in con- 
 nection with S. C, 7 John. Rep. 5, 10. A similar point, also indefinite as to the time of 
 possession, appears to have been held by the Supreme Court of the United States. Hep- 
 burn V. Auld, 5 Cranch, 262, 276. And there are several American cases which recognize 
 the general principle. Per Thompson, J., in Jackson ex dem. Smith v. Pierce, 2 John, 
 Rep. 221, 226; per Sutherland, J., in Doe ex dem. Marston v. Butler, 3 Wend. 149, 152, 
 158 ; per Robertson, J., in Fitzhugh v. Croghan, 2 J. J. Marsh. 436 ; Richards v. M'Kie, 
 Harp. Eq. Rep. 184, 192 ; Holtzapple's Lessee v. Phillibaum, 4 Wash. C. C. Rep. 353, 367. 
 And see Edwards v. Bibber, 1 Leigh, 183. 
 
 But the contract must he fulfilled by a payment, on the part of the vendee, and a right- 
 ful possession, so that the mere form of a conveyance shall be all that is wanting. "The 
 party should appear to be legally or equitably entitled to a conveyance. Richards v. 
 M'Kie, Harp. Eq. Rep. 184, 193, 193 ; per Sutherland, J., in Doe ex dem, Marston v. Butler, 
 3 Wend. 152, 153. See also Den ex dem. Popino v. Cook, 2 Halst. 41, 56, et aeq. ; per 
 Sutherland, J., in Jackson ex dem. Erwin v. Moore, 6 Cowen's Rep. 725 ; Mundell's Lessee 
 V. Clerklee, 3 Har. & John. 462. 
 
 The time within which the specific execution of these agreements to convey may be 
 presumed, is not well defined by the cases. Where tenants in common, under a lease in 
 fee, made a written agreement with their landlord, in 1791, to release to Mm and take a 
 new lease for their respective portions in severalty, it appeared that in 1792 and 1794, 
 new leases were executed and followed by corresponding possession ; but there was no 
 other direct or circumstantial evidence of a release. In about twenty years after the date 
 of the last lease, the Supreme Court held, as one of the points in the cause, that a release 
 should be presumed. Springstein v. Schermerhorn, 12 John. Rep. 357, 363. And see per 
 Walworth, C, in Parks v. Jackson, 11 Wend. 455. 
 
 12. Another fertile head is, in England, the presumed surrenders of terms attendant 
 upon the inheritance. These are terms which stand out in persons vv'ho are trustees for 
 the benefit of the owner of the fee, whoever he may be ; and }f they stood on the ground 
 of ordinary trusts, the cases might, perhaps, bo used as valuable illustrations under the 
 seventh subdivision of this note. But there is so much artificial learning, arising upon 
 the connection of these trusts with family settlements and other objects peculiar to the 
 
SEC. IT.] A Conveyance Presumed, when. 561 
 
 *672 * Of -private conveyances Coijveyances between private individuals 
 are often recommended to jurieSyin more or less forcible terms, as 
 presumable in favor of a party who has proved a right to the beneficial 
 ownership of property, and whose possession has been consistent with the 
 existence of such a conveyance as is to be presumed, especially if 
 *673 the possession cannot be accounted for, *and would have been 
 unlawful, except on the supposition of a conveyance ; such presump- 
 tions are made to prevent justice being defeated by a mere formal objection 
 to the party's title in a coyrt of law.(t) But where the original possession 
 of property may be accounted for, and is consistent with the fact of tjjere 
 having been no conveyance, it seems proper to direct a jury to presume a 
 conveyance or not, according to their actual belief on the subject. (2) 
 
 English conveyancer, ttat the whole becomes nearly useless to the American lawypr. 
 The presumption of surrender is almost always qualified or controlled by a reference to 
 those objects. Our terms stand out in gross ; surrenders are regarded simply as deriva- 
 tive conveyances ; and must grow out of the same general ground of presumption with 
 any other sort of assurance. The American student will, therefore, find all the learning 
 which he can desire on this subject, dn 4 Kent's Comm. 86-94 (2d ed.) Lect. 56. See the 
 doctrine of prpsumed surrender. Id. pp. 90, 91, 93. 
 
 13. A question of great importance to the American lawyer, was mooted in Doe dem. 
 Beanland v. Hurst (tl Price, 475, 489-^92). It was lio less than whether a deed respect- 
 ing lands can be presumed in a registering county. The English act (see Id. p. 492), for 
 registering deeds and conveyances in the West Biding of Yorkshire, on which act the 
 question arose, declares that they shall be recorded, in order to protect the grantee against 
 subsequent bona fide sales and mortgages. In a word, it is nearly the same as our general 
 registry acts in the United States. In that case, a grant of coal in the West Hiding of 
 Yorkshire, was sought to be presumed from circumstances. This was resisted on the 
 ground that the registry alone should speak ; and there was no registry. The omission 
 was relied on as effectually repelling all presumption in the case. The point does not, 
 appear to have been decided. But the question at the. trial was left to the jury by Bailey, 
 J., and on the argument at bar. Rex v. Long Buckby (7 East, 45), was cited, and appears 
 to be conclusive, that such a case presents as fair a subject of presumptioii as any other. 
 In the latter case an indenture of apprenticeship had been l6st, and was to be proved by 
 parol ; but there was no evidence that it had ever been stamped ; and no registry of that 
 foct at the stamp-office, where it must have appeared, if there had been no irregularity. 
 But after nearly twenty years, during which the indentures had been acted upon as valid, 
 the court held that the evidence of non-registry was not sufficient per »e, to repel the 
 presumption, but they would rather suppose that the paper had been stamped, and that 
 the proper office had omitted the registry by mistake. 
 
 Now, this was a case where, without a stamp, the indentures would have been a nullity 
 to all intents, and where, in the regular course of things, there must have been a regis- 
 try. It was surely much stronger against the presumption than the omissibn to register 
 a deed of conveyance. The latter are valid as against the party without registry ; and 
 the grantee being in possession, they would be valid against aU the world, purchasers 
 and mortgagees included. Gouvemeur v. Lynch, 2 Paige, 300, 301, and the cases there 
 cited. Neither are the registering acts imperative, nor is there, in case of a dedd, any great 
 danger in omitting to Register. It is entirely optional with the party ; and if purchasers 
 or mortgagees are uninjured by lack of constructive notice, none others can complain. 
 Where notice alone is the object, it is given by a change of possession to the grantee ; 
 and an absolute deed may ordinarily be withheld from the record, without any danger. 
 Indeed, this is often so in practice. And it follows that there is nothing in the omission to 
 register,;neces3arily inconsistent with the common presumption which involves the pre- 
 vious existence and loss, and may equally well include the noft-reglstry. 
 
 (The law presumes a conveyance where there has been long continued possession of 
 land under a claim of title, and the parties are sho^yn to have acted as though a deed had 
 been given. Wendell v. Moulton, 6 Foster (N. H.), 41. Over twenty years' possession is 
 held in South Carolina to raise the presumption of a grant. Thompson v. Peake, 7 Rich. 
 358 ; Kimbrall v. Walker, 7 Id. 432. The presumption of law is founded upon a fair pre- 
 sumption of fact, and is frequently resorted to to supply the place of lost deeds. Demeyn 
 V. Legg, 18 Barb. 14 ; Simpson v. Hyatt, 1 Jones Law N. C. 517 ; Spears v. Oakes, 4 Rich. 
 347. Adverse possession of the land must be shown before any presumption will be made 
 in favor of the claimant. Wadsworthville School v. Meetze, 4 Id. 50. Permissive posses- 
 sion will raise no such presumption. Roxbury v. Huston, 87 Maine R. 42.) 
 
 (1) By Tindal, C. J., in Doe d. Hammond v. Cooke, 6 Bing. 174, 180. See Matthews on 
 Presumptions, ch. 4. 
 
 (2) Doe d. Fenwick v. Beed, 5 B. & A 233. It was said that the presumption of 
 Vol. L 71 
 
662 Of Presumptive M)idence, [ch. x. 
 
 With regard to the presumptions of a conveyance from a trustee to a 
 cestui que trust, and of the surrender of outstanding terms, which are often 
 necessary in order to constitute a legal title in an action of ejectment, con- 
 siderable diflferences of opinion have been expressed. As these questions 
 are somewhat removed from ordinary comprehension, it may be expected 
 that, although they must be submitted to a jury, yet that, in point of fact, 
 they will ordinarily be decided upon principles of law by the judge. A 
 surrender of an outstanding term was, in general, presumed, where the trus- 
 tees ought to have conveyed to the beneficial owner, and where it was set 
 up by a mortgagor against a mortgagee.(l) But such a presumption was 
 not made, where it would have been a breach of trust in the trustees to 
 have surrendered the term; (2) or, iii general, where the surrender would 
 have been against the interests of the owner of the inheritance, especially if 
 the term had been recognized as subsisting at a late period. (3) The pre- 
 sumptions which juries were used to be called upon to make, with regard 
 to the surrender of outstanding satisfied terms, are now set at rest by the 
 provisions of the statute 8 & 9 Vict., c. 112. 
 
 It may be considered, that when acts are done or omitted by the 
 *6'74 owner *of the inheritance and by persons dealing with him as to 
 
 the land, which ought not reasonably to have been done or omitted 
 if the .term existed in the bands of a trustee, a surrender may be pre- 
 sumed. (4) 
 
 The principal difference of opinion has existed in respect of the presump- 
 tion of the surrender of terms, from the circumstance of their not being 
 noticed in recent marriage contracts or other conveyances. It should seem 
 that the courts of law had, in some instances, proceeded on an erroneous 
 opinion as to the practice of noticing outstanding terms upon such occasions. 
 But the courts of equity having expressed great dissatisfaction at the deci- 
 sions of the courts of law as to this matter, the courts of law appear to have 
 been desirous, in later cases, to assimilate their decisions to those of the 
 equity courts. (5) 
 
 grants and Conveyances had gone to too great a length. See also lavett v. Wilson, 3 
 Bing. 115. 
 
 Note 191. — The question whether non-demand and non-payment of a quit rent for 
 sixty years will not found a presumption of payment, was raised and argued, but not 
 decided, in Ten Broeck v. Livingston (1 John. Ch. R. 357, 360, 863). Afterwards, forty, 
 four years were held sufficient (Livingston's Ex'rs v. Livingston, 4 Id. 294), on a consid- 
 eration of the English cases. Id. 297. 
 
 But these cases, and the remarks in the text, relate to the body of the rent. Where that 
 is not disputed, there is no doubt that the lapse of twenty years since a particular rent 
 fell due will, as in case of a bond, warrant the presumption of payment up to that time. 
 This presumption may be repelled by like circumstances (for which, Beeoost, note 193), as 
 by showing that the parties resided in different countries, the denial of the lessee that he 
 had ever paid rent, and the premises being situate in a foreign country. Bailey t, Jack- 
 son, 16 John. Rep. 210. 
 
 (1) By Lord Kenyon, C. J., In Doe d. Hodsden v. Staple, 2 T. R. 696. And see Doe d, 
 Bowerman v. Sybourn, 7 T. R. 2 ; S. C, 2 Esp. 496 ; England d. Sybourn v. Slade, 4 T. E. 
 683 ; Wilson v. Allen, 1 Jac. & W. 611, 630 ; Emery v. GrocoCk, 6 Madd. 64. As to the 
 presumption, where the duTy of trustees to convey is only to be gathered constructively 
 from the trust, see Doe d. Howell v. Lloyd, Pea. Ev. App. xli. (5th ed.) ; Hillary v. Waller, 
 12 Ves. 239, 2S1 ; 2 Sugd, Vend. & Purch. 196. See ante, note 190, p. 669, 670. 
 
 (2) Keene v. Dearden, 8 East, 867. 
 
 (3) Doe d. Graham v. SCott, 11 East, 478. See Doe d. Hanley v. Wright, 3 B. & A. 720. 
 
 (4) By Abbott, C. J., in Doe d. Putland v. Hilder, 3 B, & A. 782. 791. 793. See further 
 on this subject, Bartlett v. Downes, 3 B. & C. 616 ; Doe d. Blacknell v. Plowman, 3 B. & 
 Ad. 573 ; Townsend v. Ohampernown, 1 Y. & J. 538 ; Doe d. Hammond v. Cooke, 6 Bing. 
 134 ; Day v. Williams, 2 C. & J. 460 ; Townsend (Marq.) v. Noi-wlch (Bishop), Sugd. V. & 
 P. 443 ; Cholmondeley v. Clinton, Id. 444 ; Aspinal v. Kempson, Id. 446 ; Doe d. Burdett 
 V. Wrighte, 2 B. & A. 710 ; Daintree v. Brocklehurst, 18 L. J. (N. S.) Exch. 07 ; Matthews 
 on Presumptions, 336 to 359. 
 
 (5) The subject is fully discussed by Sir B. Sugden, in the last edition of his book on 
 Vendors and Purchasers, Vol. 2, p. 196. He concludes, that the profession are justified 
 
6 EC, 11. J And of Presumptions. 563 
 
 Where the ground for the presumption of a conTeyance between private 
 individuals is simply that of length of possession, it should seem that the 
 courts have imposed a restriction upon the discretion of juries. It has been 
 held, that possession of land for any period less than twenty years by a 
 feo^e, is not sufficient to found a presumption that livery of seizin has 
 accompanied the feoffment. (1) 
 
 Licenses may be presumed after a shorter space of time than is ordinarily 
 required for the presumption of actual conveyances. Thus, where an inclo- 
 sure had been made from a waste twelve or fourteen years, and had been 
 seen by the steward of the lord from time to time, without objection being 
 made, it was left to the jury to say whether the inclosure was made by the 
 lord's license. (2) 
 
 0/ by-law. Although there do not remain any traces of a by-law in the 
 
 books of a corporation, and although there cannot be any proof given of the 
 
 loss of it, yet, upon evidence of constant usage, a jury may be 
 
 *675 directed to *presume its existence. Sixty years' usage has been con- 
 
 -• eidered evidence of a by-law. (3) 
 
 Presumption of payment. Presumptions of the payment of money have 
 been sanctioned in various cases. Where it has been usual between parties 
 to make payments that frequently become due, without taking written 
 Vouchers, and a long time has elapsed without any complaint being made 
 of non-payment, the fact of payment may very properly be pre- 
 *6T6 sumed.(4) If a landlord gives a receipt *for the rent last due, it is 
 
 by the authorities In considering the law to stand as it did beftjre the decision in Doe d. 
 Putland T, Hilder, ut twpra,. 
 
 (1) Doe d. Wilkins v. Cleveland (Marquis), 9 B. & C. 671. And see 2 & 3 Wm. IV, c. 71. 
 As to the presumption of livery of seizin, see Isack v. Clarke, EoU. K<ep. 132, pi. 9 ; Biden 
 •V. Loveday, Vern. 196 ; Rees v. Lloyd, Wightw, 133. The period of twenty years has 
 been adopted by the courts, in various iustanees, for the purpose of raising presumptions, 
 In analogy, probably, to the statute of James ; but in regard to the proof of written instru- 
 ments, by thfiir production from the proper custody, without further proof of execution, 
 the period of thirty years has been adopted. 11 East, 504 ; 4 B. & A. 376 ; 5 T. R. 359 ; 2 
 M.AS.387;2B. &C.814. 
 
 (2) Doe d. Foley v. Wilson, 11 East, 56 ; Goodtitle d. Parker v. Baldwin, 11 East, 488 ; 
 Ditcham v. Bond, 3 Camp. 525. 
 
 (3) See R. v. Head. 4 Burr. 3518 ; E. v. Bird, 13 East, 368. By Lord Mansfield, C. J., in 
 Perkin v. Cutlers (Warden of Co.), 31 MSS. Serg. Hill, p. 65. 
 
 (4) See Lueas v. Novosilieskj, 1 Bep. 296 ; Sellen v, Norman, 4 C. & P. 86 ; Evans v. 
 Birch. 3 Camp. 10 ; Topham i. Braddick, 1 Taunt. 573. 
 
 Note 192. — Decker v. Livingston, 15 John. Rep. 479, S. P. The civil law requires, in 
 order to raise this presumption, acquittances for three successive years. Poth on Obi. 
 No, 812. And on the same principle, a repeated statement of reciprocal debts between 
 two, will, after the death of one, warrant the presumption that all debts between them 
 were included, and throw the onus of establishing an omission on the survivor. 1 Dom. 
 b. 3, lit, 6, § 4, art- 11, A payment or release of all debts not included in the statement 
 will be presumed. Id. But a release of one debt, will not affect amother not mentioned 
 in the release ; and where a demand appears to have been omitted in a single statement 
 of accounts, it will not be discharged ; but the omission will be considered rather as acci- 
 dental, Tinless the partans are nearly related, or several accomsts stated have passed in thie 
 way between them, or the creditor has died without asserting his claim. Poth. on Obi. 
 No. 577. 
 
 If a promissory note or bond should chance to be found in tbe hands of the debtor, or if 
 it be crossed, rased or torn in pieces, wither of those circumstances will create a presump- 
 tion that it has been acquitted; which presumption will remain until clear proof be 
 brought tliat the debt is stili owing (see Oarlock v. Geortner, 7 Wend. 196 ; Palmer v. 
 Guernsey, Id. 248) ; as that the appear9,nees a^irist the demand came by violence or acci- 
 dent, &c. 1 Dom. b. 3, tit, 6, § 4, art. 13 ; Poth. on Obi. Nos. 572, 578, 813 ; Novelli 
 V. Rxjssi, 2 Bamw. & Adolph. 757. So where a bill of exchange was found in the hands 
 of the acceptor. Gibbon v. Fetherstonhaugh, 1 Stark. N. P, Cas. 225. 
 
 Eeleasing tlie pledge creates no presumption that the debt is released. Poth. on Obi. 
 No. 574. But if a contract involving mutual obligation be released on one side, the pre- 
 siuuption is that the other is also released. Id. No. 575. 
 
564 <y I?resumptwe Miidence, [ch. x 
 
 to be presumed that all former rent due from the tenant has been 
 *'703 paid.(l) Where a bill of exchange, negotiated after *acceptance, is 
 
 On a plea of payment, the acceptance of less in satisfaction may be left to the jury as 
 evidence that the rest has been paid. Blanchard v. Noyes, 3 N. H. Eep. 518. 
 (The giving of a promissory note is presumptive evidence that the payee was not at 
 ■that time indebted to the maker. De Freest v. BloomingdaJe, 5 Denio, 304; Gould v. 
 Chase, 16 John. 336. It wiU be presumed that all claims of the maker against the payee 
 were adjusted when the note was given. Lake v. Tysen, 6 N. Y.461. For example, it will 
 be presumed that the maker's demand for services against the payee was adjusted when 
 the note was given, though this- presumption may be rebutted by showing that the note 
 was given for a temporary loan. Duguid v. Ogilvie, 3 E. D. Smith, 537. Where the 
 seller takes from the purchaser, on a sale of goods, the note of a third person, the pre- 
 sumption is that he takes it in payment. Noel v. Murray, 13 N. Y. 167. Payment of 
 rent falling due on a given day, raises a presumption that the prior rent has been paid. 
 Decker v. Livingston, 15 John. 479. And in a case where. On the day after $65 of rent 
 became due, the lessee by an agreement in writing surrendered the lease and assigned a 
 contract, and the lessor agreed to pay him therefor $550, which he afterwards paid, it was 
 held that the contract did not operate to release or extinguish the rent dtie, that the 
 receipt indorsed on the contract of the payment of the $350 raised no legal presumption 
 that the rent had been paid or allowed, but that the facts were properly submitted to the 
 jury to determine whether or not the rent had been paid. Sperry v. Miller, 16 N. Y. 407.) 
 
 Giving a bond and mortgage furnishes a presumption of a liquidation of all accounts 
 before their date, between the parties. Chewning v. Proctor, 3 M'Cord's Ch. Rep. 14, 15. 
 See Boss v. Darby, 4 Munf. 438 ; where payment was presumed from lapse of time com- 
 bined with other special circumstances, withoiit any direct proof of payment. The 
 pecuniary distresses of the creditor, his money transactions with third persons, &c., &c., 
 were received in evidence. Giving a promissory note after the time of credit for goods 
 purchased by the maker, of the payee, leads to a presumption that the price of the 
 goods was included in the note. Mutrie v. Harris, 1 Mood. & Malk. 333. 
 
 An order to pay money is, in the hands of the drawee, evidence of payment. Blount. 
 V. Starkey's Adm'r, 1 Tayl. 110 ; Weidner v. Schweigart, 9 Serg. & Rawle, 385. But said 
 to be otherwise of an order for goods. Blount v. Starkey's Adm'r, 1 Tayl. 110 ; Price v. 
 Justrobe, 1 Harp. Rep. 111. But quere of the latter; Alvord v. Baker, 9 Wend. 323, is 
 contra ; and where the question was whether the defendant had returned a piece of cloth 
 to the plaintifli; the possessioni by the defendant, of the plaintiff's note to the defendant 
 requesting the latter to return the cloth, was held prima facie evidence of its being 
 returned. Shepherd v. Currie, 1 Stark. N. P. Rep. 454. 
 
 The mere production of a paid check, payable to the plaintiff or bearer, e. g., where it 
 is found concealed among the drawer's papers, is not per se evidence of payment to the 
 plaintiff (Egg v. Barnett, 3 Esp. Cas. 196 ; Patton's Adm'rs v. Ash et al., 7 Serg. & Rawle, 
 116, 135, per Tilghman, Ch. J.) ; otherwise if it be proved to have been in the plaintiff's 
 possession or his name indorsed on it. Egg v. Barnett, 3 Esp. Cas. 196. And even where 
 paid to the payee, if it be used to charge him with a debt, some evidence should be given 
 to show that it was not drawn to pay a debt of the drawer ; for prima facie, it seems to 
 be taken as an act of payment. Patton's Adm'rs v. Ash et al., 7 Serg. & Rawle, 116, 135, 
 per Tilghman, Ch. J. It is often given by way of payment ; and the mere payment oif 
 money by A. to B. is presumptive evidence of the payment of an antecedent debt ; not of a 
 loan. Welch v. Seaburn, 1 Stark. N. P. Cas. 474 ; 1 Dom. b, 3, tit; 6, 8 4, art. 10. So of 
 a transfer of stock. Breton v. Cope, Peak. N. P. Cas. 30. Dallas, C. J., ruled that A., 
 ' having received the money on a check payable to him, was not, per se, evidence of pay- 
 ment to him. Uoyd v. Sandiland, Gow, 16. Mr. Roscoe adds to this case, " »ed giuere." 
 Roscoe's Ev. 15. The drawee paying a money order is, prima facie, an act of payment, not 
 a loan. Per. Sutherland, J., in Alvord v. Baker, 9 Wend. 334. 
 
 One gives a bond to convey land, there being no counter bond for the consideration 
 money ; the presumption is that the money was paid. Mitchell v. Maupin, 8 Monroe, 187. 
 
 Every oflScer engaged in the United States service is presumed to have received the 
 compensation allowed by law. United States v. Ripley, 7 Pet. 18. 
 
 A. holding a single bill against B.'s executors, paid them money as a balance of money 
 in his (A.'s) hands belonging to their testator. H^d evidence, in an action on the bill, 
 that A. had withholden money received for the testator to the amount of the biU. Beek- 
 man's Ex'rs v. Beekman's Ex'rs, Anth. N. P. Rep. 133, 135, (3d ed.) 
 
 That a highway tfex of one year was not included in a bill for the next, raises the pre- 
 sumption that it was paid ; but this presumption may be repelled. Attleborough v. 
 Middleborough, 10 Pick. 378. 
 
 A. having a demand against B. pays him money and takes a receipt in fuU of all accounts ; 
 A.'s demand shall be presumed paid. Alvord v. Baker, 9 Wend. 333. 
 
 For some instances of the presumptive payment of servants arising fbom the conise of 
 business, see ante, note 177, pi. 5. 
 
 (1) Gilb. Ev. 157. See preceding note. 
 
SEC. n.] Presumption of Payment. 565 
 
 Note J93.— Sohanber v. Jackson d. Bogart, 2 Wend. 59, 60, per Stebbina, Senator; 
 Price's Ex'r v. Fuqua'a Ei'r, 4 Munf. 68 ; and agreed by all the cases on the subject. 
 
 1. The twenty years are in general computed &om the time when the debt is payable 
 by the terms of the bond. Or if there be drcomstances simply repelling the presmnption 
 of payment previous to, or after the twenty years had elapid, you must wait another 
 twenty years before you can insist on time. Saunders v. Meredith, 3 Mann. & Ryl. 116. 
 (36 Barb. 467.) 
 
 The defense comes in upon a plea of golnU ad (orpo«f) diem. Blackburn v. Squib, Peck's 
 Eep. 6 ; per Ouriam, in Rex t. St. Paul, Shadwell, 1 Mann. & Ryl. 506. And in ^1 cases 
 of presumptive payment at law or in equity, the pleadings must contain an averment of 
 payment ; otherwise the presumption cannot be raised. Tibb's Heirs v. Clait, o Munroe, 
 526, 527. Cases where payment is provable under the general issue, must, of course, be 
 excepted. 
 
 The rule is said to have began in courts of equity. 15 Vin. Abr. Length of time, pi. 5, 
 6 ; Carpenter v. Tucker, 1 Ch. Rep. 78 ; Geoffiy v. Thorn, Id. 88— both cases, 10 Car. I. 
 Though in neither of these cases is so short a term as twenty years mentioned. So of 
 Powell V. Godsale, Rep. temp. Pinch, 77 ; 25 Car. II. But a like case is fpund at law as 
 early as 8 Car. I. SheUitoe v. Horfefall, Clayt. 102. And since those cases, the twenty 
 years have very often been recognized, both at law and in equity, as the true period. 1 
 T. B. 271, and the cases there dted ; Washington v. Brvmer, 2 Peak. Cas. 200 ; Poit, 
 »677 678, et teq, and the cases there cited ; *1 Dowl. & Ryl. 16 ; 3 Carr. & Payne, 43 ; 
 3 P. Wms. 396 ; 2 Atk. 144; 12 Ves. 266; 19 Id. 199. Held of an administrator's 
 bond. Charleston Ordinary v. Steedman, 1 Harp. Rep. 287, 289. But the time does not 
 begin to run on such a bond in Maine, tUi a decree for a distribution is passed. Potter v. 
 'ntcomb, 7 GreenL 302. 
 
 A shorter period will not per se, warrant the presumption. Pott, Vol. HI, 485, and the 
 cases there cited ; Henderson v. Hamilton, 1 HsJl's Rep. X. T. S. C. 314 ; Smith's Ex'rs 
 V. Richardson, 2 Sett & M'Cord, 166, note a; Blackburn v. Squib, Peck, 60. Though a 
 shorter period, with additional circumstances tending to prove payment, may go to the 
 jurv ; or be relied on by the Court of Chancerv. Post ; Winstanlev v. Savage, 2 M'Cord's 
 Ch. Rep. 435, 439 ; Goldhawk v. Duane, 2 Wash. C. C. Rep. 323 ; per Colcock, J., in 
 Blake's Ex'rs v. Quash & Pinckney's Ex'ra, 3 M'Cords Rep. 340, 341, 342 ; and in Levy v. 
 Hampton, 1 M'Cord's R. 146, 147. As if the parties have accounted together in the mean- 
 time (Post, Vol. Btl, 485 ; Penrose v. King, 1 Yeates. 344) ; or the ob^gee has purchased 
 an estate of the obligor (Movie v. Roberts, Nels. 9 ; injunction against bond after eighteen 
 years) ; and in one case after fourteen years, with the circumstance that the debtor lived 
 in the same street with the attorney, who held the bond for collection several years, and 
 who was proved to be highly vigilant in his profesaonal duties, was held suffident. 
 Blake's Ex'rs v. Quash & Livingston's Ex'is, 3 M'Cord's Rep. 340, 343. 
 
 The presumption may be repelled by various circumstances. Post, Vol. HI, 485, and 
 cases there cited: per Duncan, J., in M'Dowell v. M'CuUough, 17 Serg. & Bawle, 53 ; per 
 Robertson, J., in Fitzhogh v. Croghan, 2 J. J. Marsh, 436. "The more common ones are 
 am admission, within the twenty years, that the debt is due. M'Dowell v. M'CuUough, 
 17 Serg. & Rawle, 51 ; 6 Ves. 519, conceded ; Washington v. Brymer, 2 Peak. N. P. Cas. 
 200, conceded ; Post, Vol. Ill, and cases there dted ; Toplis v. Baker, 2 Cox's C. C. 118 ; 
 North V. Drayton, 1 Harp. Ch. Rep 34; Boltz v. Bullman, 1 Teates, 581, 586 ; Goldhawk 
 V. Duane, 2 Wash. C. C. Rep. 323 ; Blackburn v. Squib, Peck, 60; Cottle v. Payne, 3 Day, 
 289. So payment of interest, which is plainly equivalent to an admission (per Duncan, 
 J., in M'Dowell v. M'Cullough, 17 Serg. & Rawle, 53 ; Post, Vol. H, and cases there cited ; 
 Brearden v. Searcy's Heirs, 3 Marsh. 544, per Owsley, J.) ; and this, though the interest 
 pmd accrued before twenty years, being paid within that time. Saxmders v. Meredith, 3 
 Mann. & Ryl. 116. To make the obligee's indorsement evidence of payment, it must be 
 shown that it was made before the presumption attached. Post ; Roseboom v. Billing- 
 ton, 17 John. Rep. 182. But indorsements by the hand of the obligor are of course 
 admissible whenever made. Boliz v. Bullman, 1 Teates, 584, 586. A payment by the 
 heir-at-law will not repel the presumption as to the executor. Blake's Ei'r v. Quash & 
 Idvingston's Ex'rs, 3 M'Cord's Rep. 340, 343. And see Osgood v. Manhattan Co., 3 Gow- 
 en's Rep. 611. A promise to pay stands on the same footing with an acknowledgment 
 Eustace v. Gaskins, 1 Wash. 188. "HI am allowed a certain credit I will pay the bal- 
 ance," held to be the same. M'Dowell v. M'Cullough, 17 Serg. & Rawle, 51, 53. 
 
 The admission of one joint obligor is receivable Against the other ; but it should be 
 explicit, to have any effect. Staring that he had not paid, and ?ie bdieved his co-obligor 
 had not, held insnffident. Haskell v. Keen. 2 Xott & M'Cord. 160. 
 
 The presumption may also be resisted, by showing the obligor's inability to pay ; as 
 his poverty. Fladong v. Winter. 19 Ves. 196, and Wynne v. Waring, therecited ; Dag- 
 gett T. TaUman, 8 Conn. Rep. 168, 176 ; Bhickett V. Wall, 3 Mann. & Ryl. 119, note. So 
 his insolvency, or a state approaching to it. Boardman v. De Forest, 5 Conn. Rep. 1 ; 12 
 Ves. 266. So, that the parties were near relations. 12 Ves. 266. But the insolvency of 
 one among several obligors is not sutfident. Boardman v. De Forest, 5 Conn. Rep. 1. 
 See recent case of WaddeU v. Ehnendorf, 10 N. T. 170. Otherwise of a suit, and una vail- 
 
566 Of Presumptive Eoidence, [ch. x. 
 
 able execution against one, and a general belief of his insolvency. Levy v. Haaipton, 1 
 M'Ctord, 145. 
 
 Another answer is the long continued and permanent absence of the debtor (Nevraian 
 V. Newman, 1 Stark. Bep. 401 ; Boardman v. De Forest, 5 Conn. Rep. 1) ; as in a different 
 state of the Union (Shields v. Pringle, 2 Bibb, 387), though this be an adjoining state. 
 Daggett V. Tallman, 8 Conn. Rep. 168. But a temporary or occasional absence is not 
 enough. Boardman v. De Forest, 5 Conn. Rep. 1. Nor the absence of one only of several 
 obligors. Boardman v. De Forest, 5 Conn. Rep. 1. 
 
 So, it seems, the long continued absence abroad of the creditor is an answer, as this 
 
 precludes the ready means of payment. 13 Ves. 266 ; 19 Ves. 200. So the credi- 
 
 *678 tor's residing in England, *the debtor in the United States (Bailey v. Jackson, 
 
 16 John. Rep. 210) ; or in the East Indies. Goodhawk v. Dnane, 3 Wash. C. C. 
 
 Bep. 323. 
 
 The period of ^ revolutionary war should be deducted from the twenty years (Jackson 
 V. Pierce, 10 John. Rep. 414, serrib.; Brewton's Ex'rs v. Cannoes Ex'rs, 1 Bay, 483); espe- 
 cially if the courts are shut during that time. Quince's Adm'rs v. Ross' Adm'r, 1 Hayw. 
 N. C. Bep. 180 ; S. C, 1 Tayl. 155. So of a period intermediate the obligor's death and 
 the appointment of a personal representative. Id. 
 
 So, that the bond was wrongfully obtained by a ttird person, in an answer (Boltz v. 
 Bullmab, 1 Yeates, 584, 586) ; or that the obligee died leaving the bond with his attorney, 
 who did not deliver it to the personal representatives ; it not appearing that they knew 
 of it. Jackson ex dem. Marvin v. HotchkisS, 6- Cowen's Rep. 401. So, that the obligor 
 was the obligee's executor. (North v. Drayton, 1 Harp. Ch. Rep. 34) ; or that the obligee's 
 representative had long been engaged in procuring evidence to establish the claim. Id. 
 
 Where the Statute of Limitations excepts cert^ain time from itself, as from January, 
 1776, to June 31st, 1784, this should be dedacted from the twenty years by analogy. 
 Penrose v. King, 1 Yeates, 844. So the time during which the plaintiff was an alien 
 enemy. Dunlap v. Ball, 3 Cranch, 184 ; per Owsley, J., in Brearden v. Searcy's Heirs, 3 
 Marsh. 544. 
 
 A suit commenced, but discontinued, is not enough. Palmer's Ex'r v. Dubois' Adm'r, 1 
 E^. Const. Court, 178. Yet it is said, in Quince's Adm'rs v. Ross' Adm'r (1 Tayl. 155), 
 that a suit against the true party, even though he be not arretted, and though the suit 
 be imperfect, would go a great way to defeat the presumption. 
 
 So it is said a demand of the debt would be evidence. Quince's Adm'rs v. Ross' Adm'r, 
 1 Tayl. 155 ; and per Judge Owsley, in Brearden v. Searcy's Heirs, 3 Marsh. 554. And 
 see Anon., 11 Mod. 2, and 6 Id. 22. And where a bond and mortgage were due to the 
 state, and, just as the twenty years were about to attach, a reference was made to the sur- 
 veyor and attorney-general, who reported the money due, this was held to repel the 
 presumption. Jackson v. Pierce, 10 John. Rep. 414, 417. 
 
 In one case, though the presumption of payment was done away, the court directed the 
 Jury that they might presume a release. It was where the obligee was father-in-law to 
 the obligor, and had given him direct encouragement that the money in the bond should 
 never be demanded, but should be given as his wife's share ; and this though a little less 
 than twenty years had elapsed since the obligor acknowledged the debt. Washington v. 
 Brymer, Peak. Ev. (4th ed.) app. 76; S. C. 3 Peak. N. P. Cas. 290. 
 
 3. Mortgages, being but a security for money, come within the same rule. Where they 
 have lain dormant for twenty years (Stewart v. NichoUs, 1 Tamlyn, 307 ; per Lord Thur- 
 low, in Trash v. White, 3 Brown's C. C. 289 ; Wilson v. Witherby, Bull. N. P. 110)— 
 which dormancy, of course, excludes the act of payment by the mortgagor, and possession 
 by the mortgagee — they are, like bonds, presumed to have been paid. This was formerly 
 held to be otherwise, because there was between them the quasi relation of landlord and 
 tenant, which was supposed to consist with longer delay. Leman v. Newnham, 1 Ves. 
 51 ; per Sir W. Fortescue, M. B. ; Toplis v. Baker, 8 dox's C. C. 118. But this notion has 
 long since been exploded by the English courts. (Wilson v. Witherby, Bull. N. P. 110 ; 13 
 Ves. 366 ; Trash v. White, 3 Bro. C. 0. 391, per Lord Thuriow, C. ; Christophers v. Sparke, 
 3 Jac. & Walk. 333, 334, per Sir T. Plumer, M. R.) ; and emphatically so by the American. 
 Giles V. Baremore, 5 John. Ch. Bep. 545, 553 ; ColUns v. Torry, 7 John. Rep. 378, 383 ; 
 Jackson ex dem. The People v. Pierce, 10 John. Bep. 414; Jackson ex dem. The People 
 V. Wood, 12 John. Rep. 342 ; Hughes v. Edwards, 9 Wheat. 489. And see Higginson v. 
 Mein, 4 Cranch, 415, 420; Jackson ex dem. Sackett v. Sackett, 7 Wend. 94; and The 
 People v. The Supervisors of Columbia, 10 Wend. 363. 
 
 Like the case of bonds, the presumption may be raised in a shorter time by auxiliary 
 circumstances. Jackson ex dem. Sackett v. Sackett, 7 Wend. 94. Where the mortgagee 
 looked on without giving notice to the purchaser, and saw the mortgagor convey fu fee, 
 payment was presumed, though there was the lapse of but about seventeen years (Sibson 
 v. Fletcher, 1 Ch. Rep. 50); and in one case, only sixteen years. Abdy v. Loveday. 
 Pinch's Rep. 350. In' Jackson ex dem. Martin v. Pratt (10 John. Rep. 381, 387), Kent^ 
 Ch. J., suggested that nineteen years, without auxiliary circumstances, would warrant the 
 presumption. But quere. The cases in respect to bonds, we have seen, are dis- 
 *679 tinctly the other way. In Jackson ex dem. Sackett v. Sackett *7 Wend. 99), 
 
SEC. n.] Presumption of Payment. 567 
 
 Sutherland, J., intimates that the mortgage debt being secured by note pT other simple 
 contract, the presumptive bar would arise in six years. QiMere. . 15 N. Y. 505. 
 
 The presumption may be repelled, as in the case of a bond. Stewart v. NichoUs, 1 
 Tamlyn, 307 ; per Bobertson, J., in Fitzhugh v. Croghan, 2 J. J. Marsh. 436. And it was 
 held an answer that the mortgage was on an unproductive reversion, or the party admit- 
 ted the debt to be unpaid. Toplis v. Baker, 3 Cox's Ch. Rep. 118 ; Trash v. White, 3 Bro. 
 C. C. 389, 291. See, also Mede v. Earl of Bandon, 3 Dow. 368. Indeedjhe common cir- 
 cumstances of payment and acknowledgment are mentioned in almost every case cited in 
 this note. So that the land was occupied by a mere naked possessor, or not claiming under 
 the mortgagor, is a circumstance to rebut the presumption cii payment ; apd a statute 
 foreclosure and sale by advertisement in New York, though merely ex poffte, and though 
 thirty-one years after the money fell due, is a conclusive answer to the bar. Jackson ex 
 dem. Mackay v. Slater, 5 Wend. 295. So, that the mortgagor became bankrupt, and there, 
 fore unable to pay. Stewart v. Nicholls, 1 Tamlyn, 307. 
 
 The statute raises a presumption of payment, but the presumption is not strong enough 
 to support a demand for affirmative relief. Lawrence v. Ball, 14 N. Y. 477. 
 
 (In this state, no acknowledgment or promise is sufficient evidence of a new or continu- 
 ing contract, so as to take the case out of the statute, unless the same is contained in 
 some writing signed by the party to be charged thereby ; but this new provision does not 
 alter the effect of any payment of principal or interest. § 110, Code of New York ; Morey 
 V. Farmers' Loan and Trust Co., 14 N. Y. 302. Payment keeps instrument alive. Carl v. 
 Hart, 15 Barb. 565. 
 
 In respect to a mortgage, the presumption of payment arising fr«m a lapse of over twenty 
 years after it became due, is not repelled by showing a payment made by the mortgagor after 
 he had sold and conveyed the premises to another party, so far as the grantee and those 
 claiming under him are concerned. The partial payment waives the statute and renews 
 the debt as against the party making the payment, but does not have that effect as against 
 other parties entitled to the benefit of the presumption. New York Life Ins. and Trust 
 Co. V. Covert, 29 Barb. 435. The proper mode of making the defense, under the statute 
 in question, is to allege payment. Henderson v. Henderson, 3 Denio, 314 ; 2 Barb. 488 ; 
 3 Sand. 22 ; 8 Barb. 250 ; 27 Id. 443. An acknowledgment and promise to pay a debt, or a 
 partial payment made by one of several partners after dissolution, or one of several joint 
 and several debtors, will not revive or renew the debt against the others, under tlie stat- 
 ute. Van Keuren v. Parmelee, 2 Comst. 534 ; Shoemaker v. Benedict, 1 Kernan, 176 ; 
 Winchell v. Hicks, 18 N. Y. Eep. 558. A verbal. promise will not renew a debt barred by the 
 statute when the Code took effect. Esselstyne y. Weeks, 8 Kernan, 635. A new promise 
 to a stranger is of no effect. Bloodgood v. Bruen, 4 Seld. 463 ; Wakeman v. Sherman, 5 
 Id. 85. And a conditional promise can only be rendered effectual by proving. a perform- 
 ance of the condition. Wakeman v. Sherman, supra. 
 
 The presumption of payment arises from the lapse of time in favor of the mortgagor in 
 possession,. Belmont v. O'Brien, 3 Kern. 394. A written receipt given by the mortgagee, 
 the date of which was not proved otherwise than by the paper itself, is not evidence 
 against the assignee of the mortgage subsequent to such date, of a payment by the mort- 
 gagor. Foster v. Beals, 21 N. Y. 247. A presumption of payment by the grantee of 
 premises covered by a mortgage, arises from the discharge of record and the possession 
 by such grantee of the mortgage, with the accompanying bond, canceled. Braman v. 
 Bingham, 36 N. Y. 483.) 
 
 In one case, where the defendant admitted the mortgage debt liad not been paid, but 
 disputed its original existence the claim being very old, the Court of Chancery, on the 
 principle of discouraging stale demands, presumed that the debt never existed. Christo- 
 phers V. Sparke, 3 Jac. & Walk. 333. 
 
 3. On the other hand, by analogy to the Statute of Limitations barring a right of entry 
 after twenty years' adverse enjoyment, a possession for that length of time by the mort- 
 gagee, without account or acknowledgment of an existing right to redeem, forms a 
 presumptive bar to the equity of redemption. Pearson v. Pulley, 1 Cas. Ch. 102; Clap- 
 ham V. Bowyer, 1 Ch. Rep. 306 ; White v. Ewer, 3 Ventr. 340 ; Jenner v. Tracey, 3 P. 
 Wms. 287, note 6 ; Knowles v. Spencer, 1 Eq. Cas. Abr, 315 ; Heatou v. Hugell, 1 IJarn- 
 ardist. K. B. Rep. 272 ; Aggas v. Pickerell, 3 Atk. 225 ; Anon., 3 Atkyns, 313 ; Foster v. 
 Hodgson, 19 Ves. 184 ; Hodle v. Healy, 1 Ves. & Bea. 539 ; Moore v. Cable, 1 John. Ch. 
 Eep. 385 ; Demarest v. Wynkoop, 3 Id. 129 ; Hughes v. Edwards, 9 Wheaton, 489 ; Harkey 
 V. Powell, 1 liawks. 17 ; Shepperd v. Murdock, 3 Murph. 218 ; Lamar v. Jones, 3 Har. & 
 M'Hen. 328 ; per Parker, Ch. J., in Pomeyoy v. Winship, 12 Mass. Rep. 520, 521 ; per 
 Robertson, J., in Fitzhugh v. Croghan, 8 J. J. Marsh. 436 ; Slee v. The Manhattan Com- 
 pany, I Paige, 48 ; Bunco v. Wolcott, 3 Conn. Rep. 37 ; Saunders v. Hord, 1 Ch. Rep. 184 ; 
 Floyd V. Mansell, Gilb. Eq. Rep. 185 ; Rakestraw v. Brewer, Mos. 189, 191 ; Frazer v. 
 Moor, Bunb. 54 ; Barron v. Martin, 19 Ves, 336 ; Corbett v. Barker, 1 Anstr. 138, 143, 143 ; 
 3 Anstr. 755, 759 ; Belch v. Harvey, 3 P. Wms. 287, note b ; Reeks v. Postlfthwaite, Coop. 
 C. C. 161 ; Bockford v. Close, cited 1 Bro. C. C. 644 ; Proctor v. Oates, 3 Atk. 140. 
 
 The twenty years are, of course, according to all the cases, to be computed from the 
 time when the moneys fall due, which makes the forfeiture at law. 'Till that period. 
 
568 ^f PreMimptive Evidence, fcH. a:) 
 
 there is no power to redeem ; and tlie right agMnst which the statute runs cannot be 
 said to have accrued. Ingraham v. Baldwin, 5 Seld. 45. 
 
 It would seem that the same time is allowed before the equity of redeih^tion of per- 
 sonal property would be barred, as of real estate. LocKwobd v. Ewer, 3 Atk. 303 ; Mims 
 V. Mims, 3 J. J. Marsh. 106 ; Harkey v. Powell, 1 Hawks. 17. The possession must be 
 adverse, on a claim of absolute title, and so shown ; or a possession as bailee ViU be pre- 
 sumed. Mims V. Mims. 8 J. J. Marsh. 108, 106. 
 
 A bill filed (wtich answers to suit brought at law) before the lapse of twenty ybairs, will 
 prevent the bar. But though a decree be obtained, twenty years more unexplained delay 
 will bar. St. John v. Turner, 2 Vem. 418. So, though a suit be commenced and pending 
 vrithin the twenty years, if the answer do not admit, but deny the right, it must be pro- 
 ceeded on ; and it seems that if it lie twenty years in such a case, the bar is complete. 
 Cotterell v. Purchase. Cas. temp. Talbot, 61. K fortiori, a, mere demand by the mort- 
 gagor, without process or acknowledgment, cannot be used to rebut the bar. Hodle v. 
 Healy, 1 Ves. & Bea. 536, 540. 
 
 In adopting the Statute of Limitations, courts of equity take it with all its qualifica- 
 tions of disability, such as infancy, coverture, absence beyond sea, &c. ; and where the 
 time begins to run during such disability, they allow ten years after its removal. Proctor 
 V. Cowper. 2 Vem 377 ; Cornel v. Sykes, 1 Ch. Rep. 198 ; per Lord Keeper, in White v. 
 Ewer, 3 Ventr. 340 ; per Lord King, in Jenner v. Tracey, 3 P. Wms. 287, note ; per Lord 
 Talbot, in Belch v. Harvey, 3 P. Wms. 387, note ; per Lord Eldon, in Foster v. Hodgson, 
 19 Ves. 184 ; per Sir T. Plumer, in Hodle v. Healey, 1 Ves. & Bea. 539. 
 
 So they hold (as at law) that where there is no incapacity when the time begins to 
 *680 run, a Subsequent incapacity will not prevent its progress. Aggas v. Pickerell, 3 
 Atk. 235 ; Anon., 2 Atk. 333 ; Floyd v. Mansell, Gilb. Eq. Bep. 185 ; Knowles v. 
 Spence, 1 Eq. Cas. Abr. 315 ; S. C, Mosel. 225 ; Styne v. Byrne, 5 Bro. P. C. by Toml. 
 209 ; St. John v. Turner, 3 Vem. 419. And see the argument of Kent, C, in Demarest v. 
 Wynkoop, 3 John. Ch. Cas. 140 to 142. 
 
 The time allowed is twenty years, where no disability exists. If there be a disability 
 when the twenty years would begin, that is, when the right accrues, the party shall have 
 ten years to prosecute after the disability ceases ; so that he may have thirty, forty, or 
 fifty years, accordingly as the disability lasts. But in no case can he have more than ten 
 years after his disability removed, unless the latter expire before the twenty years. So 
 that he shall in all cases have twenty years from the time of the right accruing, and ten 
 years after disability gone, though the latter is not necessarily added to the twenty years. 
 Doe V. Jesson, 6 East, 80 ; Cotterell v. Button, 4 Taunt. 836 ; Belch v. Harvey, 3 P. Wms. 
 287, not#!> / Jackson ex dem. Swartwout v. Johnson, 5 Cowen's Rep. 74. See 3 N. Y. 
 Rev. St. 395; §§ 16, 17 ; 10 N. Y. 96. 
 
 Several disabilities too may exist when the right accrues, as infancy and coverture. 
 These must all be removed before the ten years begin to run. Jackson ex dem. Swart- 
 wout V. Johnson, 5 Cowen's Rep. 74 ; per Chambre, J., in Cotterell v Button, 4 Taunt. 
 830 ; 1 Plowd. 375. But neither courts of law nor equity will allow of cumulative disa- 
 bilities. Thus if infancy exist when the right accrues, and then coverture, though before 
 infancy terminated, the first alone will be reckoned, and the ten years be counted from the 
 expiration of that. Jackson ex dem. Swartwout v. Johnson, 5 Cowen's Rep. 74. Bema- 
 rest V. Wynkoop, 3 John. Ch. Rep. 129, 138 ; Boe ex dem. Francis v. Jesson, 6 East, 80, 
 84, 85 ; Eager v. The Commonwealth, 4 Mass. Rep. 183 ; Bush v. Bradley, 4 Bay's Bep. 
 289, and Bunco v. Wolcott, 2 Conn. Rep. 37, overruling Eaton v. Sanford, 3 Day's Bep. 523. 
 (When the debtor is a non-resident when the cause of action accrues, the statute does 
 not begin to run until he comes into the State. Gans v. Frank, 36 Barb. 330 ; 36 Id.'308 ; 
 10 N. Y. 96, Cole v. Jessup'; comes into the State to reside, 5 Denio 683 ; or at least openly, 
 or within the creditor's knowledge ; 4 Benio 577 ; if the debtor residing abroad when the 
 cause of action accrues, dies abroad, the statute begins to run from the time of his death. 
 Christopher v. Garr, 6 N. Y. 61). 
 
 But in following the law, it is not necessary to say that the statute shall not run against 
 a remainderman, or reversioner of the equity of redemption, till his estate comes in by 
 the expiration of the particular estate preceding it. This is so at law because no action 
 will lie for him till that contingency arises. But in equity, he may file his bill to redeem 
 in respect to his interest as a remainderman or reversioner, and need not wait as at law. 
 And Blake v. Foster, 2 Ball & Beat. 565, 575, d seq., which held the contrary, was after- 
 wards reversed in the House of Lords, in the session of 1838. Math. Presump. Ev. 334, 
 note a. Therefore a similar decision lately made by the Exchequer in Cowno v. Douglass 
 (1 M'Clel. & You. 321). is equally erroneous. Math. Presump. Ev. 338, note d. Beside, 
 that case is put on erroneous ground by the barons. They take it that the bar goes on 
 the presumption of a release from lapse of time, which is repelled by the equity not being 
 vested in possession in the plaintiff; whereas, all the cases go most emphatically on the 
 Statute of Limitations. The decision cannot be sustained in any view. Beside, it is 
 directly contrary to a previous decision of Sir Wm. Grant, M. R. A. B. 1813 ; Harrison 
 V. Hollins, 1 Sim. & Stu. 471. Several other cases are supposed to go on similar principles 
 with the last. Aynsly v. Ree, Dick. 249. See also per Eyre, 0. B., 1 Anstr. 138 ; Roscar- 
 
SBC. n.] IVeswmption of Payment. 569 
 
 rick T. Barton, 1 CaS. Ch. 217, 220 ; Eeynoldson v. Perkins, Ambl. 564 ; Woollaston's CaBe; 
 cited 2 Gas. Ch. 62 ; Anon., 3 Atk. 333. 
 
 A common case is an ouster or possession of the wife's land adverse to the rights of her 
 heir, commencing*during her coverture ; then coming her death, and a descent to her heir 
 subject to her surviving husband's life estate as tenant by the curtesy. At law, the time 
 will not run against the heir till the death of a tenant by the curtesy. Jackson ex 
 dem. Swartwout v. Johnson, 5 Cowen's Rep. 74. But it is otherwise if the estate be an 
 equity of redemption ; for the heir may file his bill to redeem, though he cannot have his 
 action. Anon., 2 Atk. 333. An exception is, however, where the mortgagee enters, not aS 
 mortgagee,' but in virtue of a title from the husband independent of the ' mortgage ; as if 
 the husband seU him the equity of redemption ; and he enters as owning that, thus 
 becoming both payee and payor of the Interest money during the husband's life. Corbett 
 V. Barker, 1 Anstr. 138 ; S. C, 3 Anstr. 755. So that, in such case, the heir, or, if the wife 
 survive, she herself may file a bill to redeem within twenty years after the husband's 
 death. Price v. Copner, 1 Sim. & Stu. 347. 
 
 The presumptive bar may be repelled by evidence of fraud, imposition, or undue ad- 
 vantage in the terms of the original loan ; as by restricting, or clogging, or narrowing any 
 way the right to redeem, which should be left entirely open and general, and as broad as 
 the rules of equity require (Jason v. Eyres, 2 Gas. Ch. 33 ; Newcomb v. Bonham, 1 
 *681 Vern. 7 ; Ord v. Smith, Sel. Gh. *Cas 9 ; Howard v. Harris, 1 Vem. 33 ; Id. 190 ; 
 Bowen v. Edwards, 1 Ch. Kep. 221 ; Willett v. Winnell, 1 Vern. 488 ; Marks v. Pell, 
 1 John. Ch. Rep. 594, 598, 599 ; Washburn v. Merrills, 1 Day, 139): unless indeed the 
 parties did not contemplate a mere mortgage, but a purchase subject to the restriction, 
 and everything was fair and on full consideration. Floyer v. Lavington, 1 P. Wms. 268 ; 
 Meller v. Lees, 3 Atk. 494 ; Goodman v. Grierson, 2 Ball & Beat. 274, 278 ; Tasbbuigh v. 
 Echlin, 2 Bro. P. C. by Totnl. 365 ; Gotterell v. Purchase, Forr. 61. So it will rebut the 
 bar or enlarge the time, where, by agreement at the time, the mortgagee is to enter and 
 possess, till paid by the profits, or a certain time beyond the day of payment. Marks v. 
 Pell, 1 John. Ch. Rep. 594, 598, 599 ; Toth. 333 ; Ord v. Heming, 1 Vern. 418. 
 
 The bar may also be rebutted t>y circumstances. Per Robertson, J., in Fitzhugh v. 
 Croghan, 3 J. J. Marsh. 436. Any act of the mortgagee showing that he holds as such, 
 is enough. So stating or settling.an account ; or even keeping an account of the rents 
 and profits. Proctor v. Gowper, 3 Vern. 377 ; Anon., 3 Atk. 333 s Lake v. Thomas, 3 Ves. 
 17 ; Fairfax v. Montague, cited by Lord Loughborough, 3 Ves. jun. 84 ; Campbell v. Beck- 
 ford, 4 Ves. 474. See also a case before the master of the Rolls in 1782, cited at the bar, 
 3 Ves. 20, 21. But see per Sir W. Grant, 19 Ves. 338. Though preparing and delivering 
 an account by the steward Or general agent of the mortgagee, without special authority, 
 will not have that effect. Barron v. Martin, 19 Ves. 337 ; S. C, Coop. C. C 189. Noticing 
 the equity of redemption, as subsisting in any legal instrument executed by the mort- 
 gagee, will let in the right to redeem ; and twenty years must again run to make a bar. 
 Smart v. Hunt, 4 Ves. 478, note ; Price v. Copner, 1 Sim, & Stu. 387 ; Hansard v. Hardy, 
 18 Ves. 455. See the facts stated in Hardy v. Reeves, 4 Ves. 466. See also Ord v. Smith, 
 Sel. Ch. Gas. 9 ; 3 Atk. 314, at the foot of the page ; Perry v. Marston, 3 Bro. C. C. 399 ; 
 and Whiting v. White, 2 Cox's Ch. Rep. 2y0. So filing a bill of foreclosure (Palmer v. 
 Jackson, 5 Bro. P. C. by Toml. 381 ; and the case cited by Sir Joseph Jekill, M. R., in Ord 
 V. Smith, Sel. Cli. Gas. 9); or agreeing with the mortgagor to purchase his equity (Con- 
 way V. Skrimpton, 5 Bro. P. G. by Toml. 187) ; or acknowledging it by letter expressly or 
 imipliedly (Hodle v. Healy, 1 Ves. & Bea. 536 ; see also Vernon v. Bethell, 3 Eden, 110) ; 
 or even a parol acknowledgment of it. Perry v. Marston, 3 Bro. C. G. 397 ; S. G., 3 Cox's 
 Ch. Rep. 395 ; S. G., Coop. C. C. 165, note ; Reeks v. Postlethwaite, Coop. G. G. 161, 169, 
 tt seg. See 19 Ves. 333, per Sir Wm. Grant, M. R. But questioned 2 Cox's Ch. Kep. 300, 
 and S. {!., Goop. G. C. 6. But the proof of these points must be full and unequivocal. 
 Per Sir T. Plumer, Coop. C. G. 169 ; Whiting v. White, 2 Cox's Gh. Rep. 290 ; S. G., Goop. 
 C. C. 1 ; Reeks v. Postlethwaite, Coop. C. G. 161, 171, 172, and 19 Ves. 333. So the bar is 
 done away, where the mortgagee submits to be redeemed in his answer. Proctor v. 
 Gates, 3 Atk. 140. So if he possess only part of the mortgaged premises, leaving the 
 mortgagor to possess part. Rakestraw v. Brewer, Sel. Gh. Gas. 55 ; S. G., 3 P. Wms. 511 ; 
 S. G., Mosel. 189 ; Burke v. Lynch, 3 Ball & Beat. 426. But see Lake v. Thomas, 3 Ves. 23. 
 
 The case of what is called a Welch mortgage (from its being used in Wales), that is to 
 say, a mortgage with a clause that the mortgagee may possess and receive the rents and 
 profits in lieu of interest, and that the mortgage shall be redeemable at any time (1 
 Vern. 77 ; 2 Atk. 868 ; 1 Vern. 395, 477 ; 1 Ves. 406 ; 8 Atk. 380 ; 3 P. Wms. 361 ; Howell 
 V. Price, Prec. Ch. 433), is usually an exception from the Statute of Limitations. 1 Ves. 
 406 ; 3 Atk. 368. Yet if the annual value be disproportionately high, an account may be 
 called for. Fulthorpe v. Foster, 1 Vern. 476. And a subsequent covenant by the mort- 
 gagor to pay the principal, will bring the case within the law of common mortgages. 
 Hartpole v. Walsh, 5 Bro. P. G. by Toml. 367. 
 
 Another class of mortgages provides that the mortgagee shall enter and hold till he be 
 satisfied his. principal and interest by the rents and profits ; or by a conveyance in fee, 
 with an agreement that he shall so hold. And these partake so strongly of the nature 
 Vol. I.^ 72 
 
570 Of Presumptive Miidenoe, [ch. x. 
 
 of Welch mortgages, that the mortgageg cannot compel, though he continues liable to a 
 redemption. Yates v. Hambly, 3 Atfc. 360 ; Ord v, Heming, 1 Vern. 419. Tet Lord 
 Hardwicke admitted that should twenty years' possession elapse after satisfaction, the 
 presumptive bar would attach. Yates v. Hambly, 2 Atk. 363, 363. See, also, Cloberry v. 
 Lymonds, 3 Ch. Rep. 393, where the defendant claimed by extent under an elegit ; an 
 interest to which Lord Hardwicke, in Yates v. Hambly, compared the estate taken by 
 Hambly. A like opinion was strongly intimated by Lord Eldon, in Fenwick v. Reed, 1 
 
 Meriv. 114, 134, 135. See Marks v. Pell, 1 John. Ch. Rep. 598, 599, per Kent, C. 
 *683 *4. All other sealed instruments or specialties are subject to the same doctrine of 
 presumptive payment, satisfaction or performance, according to the nature of the 
 Obligation, as a bond e. g. a single bill (M'Dowell v. M'Cullough, 17 Serg. & Rawle, 51) ; a 
 sealed agreement to pay for land (Jackson ex dem. Marvin v. Hotchkiss, 6 Cowen's Eep. 
 401) ; an obligation to convey land (Barnet v. Emerson, 6 Monroe, 607, 608) ; a sealed lease 
 and the rent due upon it (Bailey v. Jackson, 16 John. Eep. 310) ; or articles of agreement. 
 Duke of Newcastle v. Cleyton, Finch's Rep. 346 ; Phillips' Ex'r v. Morrison's Ex'r, 3 Bibb, 
 105. So on a covenant against incumbrances, accord and satisfaction were presumed 
 twenty years after breach. Jenkins v. Hopkins, 9 Pick. 548. (No presumption of pay- 
 ment of a mortgage arises from a lapse of less than twenty years. Ingraham v. Baldwin, 
 5 Seld. 45.) 
 
 In New York, the presumptive bar of twenty years aft^r action accruing on any sealed 
 instrument, is adopted by statute (3 R. S. 801, § 48); repellable by part payment, or a 
 written acknowledgment, 3 R. S. 301, § 48. In Maryland, twelve years is a statute bar, not 
 avoidable even by payment or acknowledgment. Carroll v. Waring, 3 GiU & John. 491. 
 
 A fmiiori does the doctrine extend to all securities of a nature inferior to specialties. 
 Lacon V. Briggs, 3 Atk. 105 ; Outerloney v. Earl Powis, Ambl. 331 ; DufBeld v. Creed, 5 
 Esp. Rep. 53 ; Anon., 6 Mod. 33. As to these, though the defendant omit to plead the 
 Statute of Lin^itations, he may still defend on the twenty years' presumption of payment, 
 in all cases where evidence of payment is receivable upon the general issue ; or collater- 
 ally without plea. One instance is an action on a note (Jackson ex dem. Sackett v. 
 Sackett, 7 Wend. 94; Duffield v. Creed, swpra; Rodman v. Hoop's Ex'rs, 1 DalL 85; 
 Perkins v. Kent, 1 Root, 313 ; Wells v. Washington's Adm'r, 6 Munf. 542 ; Daggett v. 
 Tallman, 8 Conn. Eep. 168 ; but see Du Belloix v. L(yd Waterpark, 1 Dowl."& Ryl. 16, 
 contra) ; another on a claim for damages assessed under a statute (Young v. Price, 3 Munf. 
 534) ; or on an account (Bass v. Williams, 8 Pick. 187) ; and the court will, after twenty 
 years, instruct the jury that they may presume a settlement of the account, and the 
 balance paid. Id. 190. 
 
 Sutherland J., in Jackson ex dem. Sackett v. Sackett, (7 Wend. 99), intimates that six 
 years might be sufficient in cases of simple contracts. But no case has yet gone so far ; 
 and such a rule would evade another, which requires the Statute of Limitations always to 
 be pleaded in such cases. 
 
 In this and the like cases, the presumption may be met and repelled by the like circum- 
 stances which are applicable to the like presumptions in respect to a bond. Daggett v. 
 Tallman, 8 Conn. Rep. 168 ; Jackson ex dem. Sackett v. Sackett, 7 Wend. 94. Note. All 
 this doctrine of presumptive bar, in respect to simple contracts, stands rejected in England 
 by the above case of Da Belloix v. Lord Waterpark, on the ground that actions on such 
 contracts are covered by the Statute of Limitations, which must govern alone. , 
 
 5. The same doctrine of presumptive payment extends to judgments ; in New York by 
 statute, where it is conclusive, except on part payment, or a written acknowledgment (3 
 E. S, 301, §§ 45, 46) ; in other places (and before statute, in New York), by the common 
 law, under which the presumption is qualified and flexible, as in cases of bonds. Curties 
 V. FJtzpatrick, 3 Peak. N. P. Cas. 92 . Flower v. Lord Bolingbroke, 1 Str. 639 ; Willaume 
 V. Gorges, 1 Campb. 217 ; Boardman v. De Forest, 5 Conn. Eep. 1 ; Kennedy v. Denoon'a 
 Ex'rs, 2 Const. Rep. 617 ; Cohen's Adm'r v. Thomson's Ex'rs, 3 Eep. Const. Ct. 146 ; Payne 
 V. Dudley, 1 Wash. Eep. 196 ; Herndon's Ex'rs v. Bartlett's Ex'r, 7 Monroe, 449, 450. In 
 Blackett v. Wall (3 Mann. & Eyl. 119, note, before Wood, Baron, in the Court of Pleas at 
 Durham), the defendant's poverty was allowed to repel the presumption of payment aris- 
 ing from the lapse of forty-eight years. (Section 90 of the code limits the time for the 
 commencement of actions, on judgments and decrees and sealed instruments to 30 years 
 9 Abbott's Pr. 377 ; 15 Id. 477.) 
 
 6. Warrants of attorney to confess judgment are also gone, by presumption, after 
 twenty years (Hulke v. Pickering, 3 Barnw. & Cress. 555), and in one case, said eighteen 
 years, unless a demand of the debt, and an acknowledgment, be shown. Clark's Ex'rs v. 
 Hopkins, 7 John. Bop. 556. 
 
 7. The same presumption applies to decrees in equity. 2 E. S. supra; Comber's Case, 
 1 P. Wms. 766. So of statutes merchant, statutes staple, and recognizances. Lady Hat- 
 ton V. Jay, 1 Ch. Eep. 117 ; Dennis v. Nourse, Id. 106 ; Popham v. Desmond, Id. 135 • 
 Burgh V. Wolf, Toth. 258 ; Smith v. Eosewell, Id. 377 ; Abdy v. Loveday, Rep. t. Finch, 
 250. Though the time is not fixed by those cases, it is presumed, from analogy, that 
 twenty years would create the presumptive bar. Matthews on Presumptive Ev. 360. And 
 see Middleton v. Shelly, 1 Lev. 198 ; Corey v. Corey, Rep. t. Finch. 831. The ground on 
 
SEC. n.] Presumption of Payment. 571 
 
 which the presumption may be repelled, is of course the same as that in respect to 
 •683 judgments ; receipt of interest, acknowledgment of the *debt, prevention of execu- 
 tion by prior incumbrances, and (probably) the creditor's absence from the state. 
 
 8. So of annuities. Lying dormant for twenty years, they are presumed, not only in 
 respect to ancient annual dues, but in whole, to have been extinguished by release, or 
 otherwise. These being real estate (incorporeal hereditaments), the bar arises, by analogy, 
 from the statute limiting an entry on lands. Smallman v. Hamilton, 3 Atkyn's Chancery 
 Reports, 71 ; Higgins v. Crawford, 3 Ves. jun. 571, contra. And see Southcot v. Southcot, 
 1 Ch. Rep. 108 ; Bales v. Proctor, 1 Ch. Rep. 144. See, also, Bennington v. Walthall, 3 
 Ch. Rep. 819 ; though there is a case (Christopher, Duke of Albemarle v. Elizabeth, Vis- 
 countess Purbeck, Rep. t. Finch, 353), where the presumption was denied of an annuity 
 fixed on land by yf&j of rent charge, of which no demand had been made for thirty 
 years. The deficiency of time short of twenty years may be made up, it seems, by aux- 
 iliary circumstances, as in other cases. See Aston v. Aston, 1 Ves. sen. 364, 367 ; Cupit v. 
 Jackson, M'Clel. 495 ; Bigg v. Roberts, 3 Carr. & Payne, 48. Whenever the right to the 
 annuity itself is not defeated, all arrears are recoverable without the limitation of six 
 years, which prevails in certain cases of account for rents and profits of land (as in Reade 
 V. Reade, 5 Ves. 744, and see also 6 Ves. 315, opinion of M. R.) That the account extends 
 to the whole was held expressly in the Exchequer Chamber. Cupit v. Jackson, M'Clel. 
 495. And see Aston v. Aston, 1 Ves. sen. 364, 367, and Wynn v. Williams, 5 Ves. 130. 
 In the last case it is said the six years limitation has no application to an annuity. And 
 see 3 Ves. jun. 571, 573, per Ld. Ch. Loughborough. It seems to stand on the same foot- 
 ing with our rent reserved by indenture. See Bailey v. Jackson, 16 John. Rep. 310. And 
 as to the body of the annuity, the presumption is liable to be met by acknowledgment, 
 &c., as in case of a bond. Wynn v. WUliams, 5 Ves. 130, 134. Relationship, large expec- 
 tations from the grantor, who was an old man peremptory with "his relatives and very 
 attentive to his pecuniary concerns, were allowed as circumstances against the presump- 
 tion of a release, in Bigg v. Roberts (3 Carr. & Payne, 43). And no presumption was 
 allowed against a supernumerary officer suing for his half pay. Commonwealth v. Lilly's 
 Adm'r, 1 Leigh, 535. 
 
 9. An annuity to a wife for pin money is presumed to have been paid or received in 
 consideration of maintenance, during every year she resides with her husband. 1 Ves. 
 sen. 367 ; Offley v. Offley, Prec. in Ch. 36 ; Thomas v. Bennett, 3 P. Wms. 341 ; Ridout v. 
 Lewis, 1 Atk. 369. And so of the income of any fund settled to her separate use, where 
 she sufiers her husband to receive and appropriate it. Powell v. Hankey, 2 P. Wms. 83, 
 and note by Cox, Id. 84. Otherwise if they have lived separate without any distinct and 
 particular allowance to her. 1 Ves. sen. 867. And so if she be insane ; for she is then 
 incapable of waiving her right. See Brody v. Barry, 3 Ves. & Bea. 36, 89. Thus it will 
 be seen that the cases of pin money and the income of a fund, do not go on length of 
 time, but on other circumstances. See 1 Ves. sen. 367. 
 
 10. The presumptive bar, or rather extinguishment by unexplained delay, also applies 
 to portions charged on real property, though no precise time has yet been fixed by the 
 cases. Standish v. Radley, 2 Atk. i'i'7. This may be repelled by admission express or 
 implied of its being due, as in case of a bond or annuity, &c. (Barrington v. O'Brien, 1 
 Ball & Beat. 173) ; and, it is presumed other circumstances applicable to like cases. It is 
 deducible from Earl of Pomfret v. Lord Windsor (3 Ves. sen. 473), that the portioner's 
 ignorance of his right, or fraud in those interested to prevent its assertion, will also rebut 
 the presumption. It seems to be rather conceded in Barrington v. O'Brien (1 Ball & 
 Beat. 178, 179), that the twenty years would, in general, bar. 
 
 11. As to the presumptive bar of a legacy or distributive share, to which the general 
 Statute of Limitations in many places does not apply, see Thomas v. White, 3 Litt. 183 ; 
 Joe V. Hart's Ex'rs, 3 J. J. Marsh. 849. No certain time could, in the nature of things, 
 be adopted. See Hercy v, Dinwoody, 4 Bro. C. C. 357 ; Gist v. CatteH's Heirs and Repre- 
 sentatives, 3 Dessauss. Eq. Rep. 53. Forty years, with other circumstances, were allowed 
 as a bar (Jones v. Turberville, 3 Ves. jun. 11) ; and it is said that thirty-five years lapse of 
 time alone will be sufficient. Pickering v. Stamford, 3 Ves. jun. 273. But see Tate v. Green- 
 lee's Adm'rs, 2 Hawks, 486. And where the claimant received an order from the legatee on 
 the executor for the amount of the legacy, he was held barred by the statute. Myers v. 
 Skrine, 1 Harp. Ch. Rep. 179. This being the case of a trust in the personal representative 
 
 (per Kent, C, in Decouche v. Savatier, 3 John. Ch. Rep. 306 ; Thomas v. White, 3 
 *684 Litt. 177, 181, 183), which he may be longer or shorter in winding up ; *and legacies 
 
 and distributive shares themselves being of such different characters, and their pay- 
 ment depending on so many contingencies, the claimants, too, often beingjfisOTe* covert or 
 infants, it is obvious that, in general, no definite period could be adopted. Clifton v. 
 Haig's Ex'rs. 4 Dessauss. Eq. Rep. 330, 341 ; Myers v. Skrine, 1 Harp. Ch. Rep. 179. The 
 cases accordingly allow more or less time, and exhibit the exercise of a discretion quite 
 arbitrary. Cusse v. Ash, Rep. temp. Finch, 316 ; Lewis v. Ld. Teynham, cited 3 Ves. jun. 
 13 ; Jones v. Turberville, 3 Ves. jun. 11 ; S. C, 4 Bro. C. C. 125 ; per Lord Alvanley, 2 Ves. 
 jun. 380 ; Higgins v. Crawford, 2 Ves. jun. 571 ; Prince v. Heylin, 1 Atk. 493 ; Stackhouse 
 v. Branston, 10 Ves. 466, 467 ; Pickering v. Stamford, 2 Ves. jun. 372 ; Coster v. Murray 
 
572 Of Presumptive JEkidence, [oh. x. 
 
 5 John. Ch. Rep. 522 ; Fotherby y.Hartridge, 3 Fern. 31 ; Arden v. Arden, 1 John Ch. 
 Rep. 313, 316; Winstanley v. Savage, 2 M'Cord's Ch. Rep. 435, 437; M'CuUough. v. 
 Montgomery, 7 Serg. & Rawle, 17 ; Wisner v. Ogden, 4 Wash. 0. C. Rep. 631 ; Todd v. 
 More's Adm'r, 1 Leigh, 457 ; Heald v. Heald, 5 Greenl. 387 ; Tate v. Greenlee's Adm'rs, 3 
 Hawks. 486 ; Falls v. Torrance, 3 Hawks. 490 ; Myers v. Skrine, 1 Harp. Ch. Rep. 179 ; 
 Joe V. Hart's Ex'rs, 3 J. J. Marsh. 349. The presumptive payment of legacies and dis' 
 tributive shares rests on the same ground. Wisner v. Barnet, 4 Wash. C. C. Rep. 631. 
 In general, legacies become due at twelve months after the testator's death (Marsh v. 
 Hague, 1 Bdw. Ch. Rep. 187, 188, and the cases there cited) ; and as to these, one would 
 suppose that, in general, twenty years would be au£Scient, as in case of debts founded on 
 specialty. And see Wood v. Briant, 2 Atk. 521 ; Mackdowell v. Halfpenny, 2 Vern. 484 ; 
 Ellison V. MofFatt, 1 John. Ch. Rep. 46 ; Rayner v. PearsaU, 3 John. Ch^Rep. 578. Delay 
 in winding up the estate, &c., may be urged to repel the presumption. Ward v. Reeder, 
 2 Har. & M'Hen 145, 154. And see 2 Ves. jun. 14. (In McCartee v. Carrol, 1 Barb. Ch. 
 455, which was a suit befoi'e the Surrogate for a distributive share in an estate that had- 
 been paid over to the other distributees in good faith, supposing the claimant to be dead 
 without issue, the chancellor held that in analogy to the statute of limitations the suit 
 should be brought within the time required in courts of law and equity. Against legatees, 
 whose legacies are payable out of the proceeds of real estate, the statute begins to run 
 from the time the money is realized by a sale ; Warren v. Paff; 4 Bradf. 260.) 
 
 The same doctrine prevails as to a proceeding in the Probate Court, under the statute 
 of Maine, to discover the goods embezzled by an executor or administrator. O'Dee v. 
 M'Crat«, 7 Greenl. 467. 
 
 In countries where a remedy at law is given for a legacy, or distributive share, by action 
 in a court of law, and a limitation to the action fixed, as is the case in New York, the 
 limitation must be adopted in chancery. Wisner v. Barnet, 4 Wash. C. C. Rep. 639, 640 ; 
 Kane v. Bloodgood, 7 John. Ch. Rep. 90 ; Souzer v. De Meyer, 2 Paige, 574. See 1 R. L., 
 by Woodw. & Van Ness, 314, 315, §§ 19, 20, which gave debt, detinue or account for a 
 personal legacy, or distributive share, and Id. 166, § 5, which limits these actions to six 
 years. On these statutes the cases last above cited proceeded ; but they do not extend to 
 legacies charged on land, so as to give an action against the terre-tenant. Peletreau v. 
 Rathbone, 18 John. Rep. 438 ; Souzer v. De Meyer, 2 Paige, 574. And to the latter^ it 
 seems, therefore the six years limitation would not apply. Souzer v. De Meyer, 2 Paige, 
 574, 577. See the present statute (3 R. S. 114, § 9), giving actions for legacies, &c., and 
 Id. 296, for limitations at law, and 301, for limitations in equity. And see infra. 
 
 Such statutes, however, being out of the question, in general, courts look to the doc- 
 trines of the presumptive bar. Wisner v. Barnet; 4 Wash. C. C. Rep. 639, 640. An implied 
 admission by simply pleading or setting up the Statute of Limitations, has been holden, 
 in such case, to repel the presumption, the defendant not denying the substantial justice 
 of the claim. Parker v. Ash, 1 Vern. 256. See also Anon., 3 Freem. 33, ca. 30, and Big- 
 gins V. Crawford, 2 Ves. jun. 571. 
 
 12. On the other hand, an executor cannot, after great delay, and other circumstances 
 indicating a waiver, maintain his bill against legatees, for advances made beyond assets in 
 his hands. Robertson v. Archer, 5 Rand. 319. 
 
 13. A presumptive bar somewhat similar to that which runs against a mortgage, noticed 
 swpra, prevails in the case of the vendor's equitable lien for the unpaid purchase money 
 of an estate which he has conveyed. The adjudged cases, which are very old, range from 
 about twenty-three to sixty years, as the time creating the bar. Hunter v. Davies, 2 Ch. 
 Rep. 44 ; Heupert v. Benn, Rep. temp. Finch, 344 ; Bidlake v. Lord Arundel, 1 Ch. Rep. 
 93. (The action to enforce the equitable lien for the purchase money of real estate, is 
 barred by the lapse of six years after the debt accrues. Borst v. Cory, 15 N. Y. 505.) 
 
 Aa to the creation of this lien and its destruction from other causes than simple lapse 
 of time, the student «nay consult the proper English authorities through Sugden's Law 
 of Vendors, ch. 13. He will also find much on this subject in the American cases. Bay- 
 ley V. Greenleaf, 7 Wheat. 46, 50 ; Carmichael v. Abraham, 1 Dessauss. 114 ; Brown v. 
 Gilman, 4 Wheat. 255, 299 ; Frazier v. Carter, 1 M'Cord's Ch. Rep. 276 ; Qilman v. Brown, 
 
 1 Mason, 312 ; Hatcher v. Hatcher, 1 Rand. 53 ; Ghiselen v. Ferguason, 4 Har. & 
 *685 John. 522 ; Garson v. Green, 1 John. Ch. Rep. 308 ; »Wilson v. Graham, 5 Munf. 
 
 247 ; Duval v. Bibb, 4 Hen. & Munf. 118 ; Tayloe v. Adams, Gilmer's Rep. 339 ; 
 
 Stouifers v. C , 1 Yeates, 393 ; W^ray v. Comptroller-General, 3 Dessaus. 509 ; Francis 
 
 V. Hazelrigg's Ex'rs. Hardin's Rep. 48 ; White v. Cassanove, 1 Har. & John. 106 ; Cox v. 
 Fenwick, 3 Bibb, 103 ; Kennedy v. Woolfolk, 3 Hayw. 197 ; Wood v. Bank of Kentucky, 
 5 Monroe, 195, 198 ; Eubank v. Poaton, 5 Monroe, 287, 393, 393 ; Blight's Heirs v. Banks, 6 
 Monroe, .98, 199, 208, 304; Meigs v. Dimock, 6 Conn, Rep. 458; Dean v. Dean, 6 Conn. 
 Rep. 385 ; Moaely v. Garrett, 1 J. J. Marsh. 213, 215, 216 ; Meek's Heirs v. Ealy's Heirs. 2 
 J. J. Marsh. 339, 830 ; Poaton v. Eubank, 3 J. J. Marsh. 42 ; Webb v. Bowman's Ex'rs, 
 
 3 J. J. Marsh. 70, 75; Ducker v. Gray, 3 J. J. Marsii. 163, 164; Clark v. Hunt, 3 J. J. 
 Marsh. 553, 557, 558, 559 ; Stewart v. Hutton, 8 J. J. Marsh, 178, 179 ; Funk v. M'Keoun, 
 
 4 J. J. Marsh. 163, 169 ; Johnson v. Thompson, 4 J. J. Marsh. 880, 883 ; Roberts v. Salis- 
 bury, 3 Gill & John. 425 ; Griffith v. Depew, 3 Marsh. 179 ; Irvine v. Campbell, 6 Bin. H8 ; 
 
SEC. ir.J JPreswmption of Pcuyirmnt. 573 
 
 Kanfelt v. Baver, 7 Serg. & Rawle, 577 ; Tomkins v. Mitchell, 2 Eand. 428 ; Wilcox v. Col 
 loway, 1 Wash. 88 ; Cole v. Scott, 2 Wash. 141 ; Graves v. M'Caul, 1 Call. 814, old ed., 860 
 new ed. ; Semple v. Burd, 7 Serg. & Rawle, 386 ; Steele v. Adams, 1 Qreenl. 1 ; Stafford v. 
 Van Rensselaer, 9 Cowen's Rep. 316 ; Dixon v. Swiggett, 1 Har. & John. 352 ; Brocket 
 V. Foscue, Ruffin, 54 ; S. C, 1 Hawks, 64 ; Wilkinson v. Scott, 17 Mass. Rep. 249 ; Shephard v. 
 Little, 14 John. Rep. 210; Bowen v. Bell, 30 John. Rep. S38 ; Hamilton v. M'Guire, 8 
 Serg. & Rawle, 355 ; Jordan v. Cooper, 3 Serg. & Eawle, 564 ; Weigley's Adto'rs v. Weir, 
 7 Serg. & Rawle, 309 ; Thalhimer v. Brinckerhoff, 6 Cowen's Rep. 102 ; Jackson ex dem. 
 Rounds V. M'Chesney, 7 Cowen's Rep. 860 ; Higdon v. Thomas, 1 Har. & Gill, 189. Mr. 
 Sugden has faithfully collected the English cases ; and we have here added the most, if 
 not all of the American eases ; not only those directly bearing on the doctrine of- this 
 equitable lien for purchase money ; but also those which, it is conceived, htive a more 
 remote application. They relate to the questions when the lien shall be holden to remain 
 or be waived, as between the original parties, in respect to purchasers from the vendee or 
 subsequent incumbrancers, what shall operate as evidence that the purchase money is 
 paid, or affect the purcliaser from the vendee, or subsequent incumbrancers, with notice of 
 non-payment, &c. See 4 Kent's Comm. (3d ed.), 151 to 154. 
 
 14. 'The assent to a legacy, by an executor, may be inferred from circumstances, among 
 which, it seems, taking possession by the legatee of a specific legacy, and enjoying with 
 the executor's assent for a long time, is an important circumstance. Math, on Pr.,Ev. 267. 
 
 15. It is proper to observe, as to annuities, portions and legacies, as well as liens for pur- 
 chase money, that the cases are by no means definite in bringing down the bar to twenty 
 years. They are generally of a longer time. Yet they bear such a striking analogy to 
 other claims which are barred by an unexplained delay for that period, that this would, 
 in the more modern and enlightened view of the question, probably be holden sufficient. 
 
 16. Direct technical and continuing trusts, and especially such as are created by the act 
 of the parties, such trusts not being cognizable at law, but only in a court of equity, are 
 not affected by the Statute of Limitations, as between trustee and ceMui qu& trust. Har- 
 rison V. Lucas, Ch. Rep. 67 ; Beckford v. Wade, 17 Ves. 87, 99, 100 ; Cholmondeley v. Clin- 
 ton, 2 Meriv. 172, 357 ; Kane v. Bloodgood, 7 John. Ch. Rep. 90, 111 ; Hovenden v. Lord 
 Annesley, 2 Sch. & Lefr. 633 ; I^prd KingslAd v. Lord Tirconnel, 1 Vin. Abr. 186, pi. 10 ; 
 Thomas v. White, 8 Litt. 181, 183 ; Farnam v. Brooks, 9 Pick. 312 ; Falls v. Torrance, 4 
 Hawks, 412 ; Harrison v. Harrison, 1 Call. 419, 438, per Pendleton, President ; Redwood v. 
 Eiddick, 4 Munf. 222 ; Spottswood v. Dandridge, 4 Hen. & Munf. 139, 145 ; Prevost v. 
 Gratz, 6 Wheat. 481, 497 ; Thomas v. White, 3 Lltt. 177, 181, 183 ; Townshend v. Town- 
 ehend, 1 Bro. C. C. 554; Llewellyn v. Mackworth, Barnardist. Ch. Rep. 445; Howard's 
 Adm'rs v. Aiken, 3 M'Cord, 467 ; Hemenway v. Gates, 5 Pick. 331 ; Pipher v. liodge, 4 
 Serg. & Rawle, 310, 315 ; Walker v. Walker, IfijBerg^ & Eawle, 379, 384 ; Wallace v. Duf- 
 field, 3 Serg. & Rawle, 531, 537, 538, 539 ; Jones v. Person, 3 Hawks, 269 ; Thompson v. 
 Blair, 3 Murph. 588 ; Wisner v. Ogden, 4 Wash. C. G. Rep. 631 ; Van Rhyn v. Vincent, 1 
 M'Cord's Ch. Rep. 313; Arran v. Ld. 'Tyrawley, Oar. Ld. Manners, and cited by him in 
 Medlicott v. O'Donel, 1 Ball & Beat. 170 ; Gist v. Cattell's Heirs and Representatives, 3 
 J)essau8S. Eq. Rep. 53. So as against a purchaser of the trustee with notice. Rankin v. 
 Bradford, 1 Leigh, 168 ; per Hutchinson, Chancellor, in PaiVne v. Hathaway, 3 Verm. 
 Bep. 383. » -v .- 
 
 An instance of this rule will be found in a bill filed by a cestui que trust, to obtain an 
 account of the rents and profits of land in the hands of his trustees (Lawley v. 
 *686 Lawley, 10 Mod. 82) ; a bill *to charge a wife's land^ conveyed in trust to her sepa- 
 rate use, with her debts (Norton v. Turville, 3 P. Wms. 144) ; to compel the execu- 
 tion of a trust for raising money Out of real estate (Pomfret v. Windsor, 2 Ves ^en. 472) ; 
 to compel the re-surrender of a copyhold •riginally surrendered by the intended husband 
 to the use of his intended wife, the marriage having never taken effect (Hammond v. 
 Hicks, 1 Verm. 432) ; to enforce a claim to slaves, purchased by an executrix with money 
 belonging to the testator's estate (Eedwood v. Eiddick, 4 Munf. 222) ; in an action of deti- 
 nue by the bailor against the bailee (Darden v. Allen, 1 Dev. 466. 469) ; in a bill filed to 
 enforce a trust for the sale of land (Jones' Ex'rs v. Person, 2 Hawks, 369) ; or to reimburse 
 to a trustee his equitable expenditures in regard to property holden by him under a direct 
 trust. Overstreet v. Bate, 1 J. J. Marsh. 867, 370. Land is conveyed to A. in trust for a 
 church ; A. cannot, by possession, acquire a title as against the church (Howard's Adm'rs 
 V. Aiken, 3 M'Cord, 467); nor can the trustee of land, devised to him in t»ust to apply 
 the rents and profits to the use of B., acquire a title by possession as against B. (Hemen- 
 way V. Gates, 5 Pick. 881) ; nor can an executor who purchases land, part with his own 
 and part with the funds of the estate, acquire title by possession (Wallace v. Duffield, 2 
 Serg. & Rawle, 531, in connection with German's Lessee v. Gabbald, 3 Binn. 302; Falls v. 
 Torrance, 4 Hawks, 412); nor one who receives a deed of land in trust to sell and pay a 
 debt (Jones v. Person, 2 Murph. 369, 390) ; nor (it is said) one who continues in possession 
 of land after he has sold and is paid for it, and before he has given a deed. Quere. But 
 said, that if thS vendor conveys to another who enters, the statute runs. Pipher v. Lodge, 
 4 Serg. & Rawle, 810, 315, 569. A trust resulting from a payment of purchase money, or 
 other consideration, and a deed taken by consent in another's name, the cestui que trust 
 
574 Of Presumptive Evidence. [ch. x. 
 
 continuing in possession, is not affected by the Statute of Limitations. Zane's Devisees 
 V. Zane, 6 Munf. 406 ; Oehler v. Walker, 2 Har. & Gill, 323. And so where he once held, 
 but had been divested of the possession. Pugh's Heirs and Bx'rs v. Bell's Heirs, 1 J. J. 
 Marsh. 398, 401. 
 
 17. But these are all cases where the question arises between cutui que trust and 
 trustee. Where a stranger has usurped the character of cestui que trust of real estate, 
 and excluded the beneficial owner for twenty years, the latter is barred, in analogy to the 
 statute limiting a right of entry. Marquis of Cholmondeley v. Ld. Clinton (2 Jac. k 
 Walker, 1, 145, et seq.), where all the cases are reviewed by Sir Thomas Plumer, M. R. ; 
 and at p. 189, note a, it will be seen that his views were concurred in by the House of 
 Lords, on appeal in the same case. After a good deal of conflict, the doctrine now appears 
 to be finally settled by the last case. See Harwood v. Oglander, 6 Ves. 169, 8 Id. 106 ; and 
 Cholmondeley v. Clinton, 2 Meriv. 357, 358, 359 ; Benzien v. Lenoir, 1 N. Car. Law Repos. 
 504, 508, against the application of the statute bar as between cestui qtie trust and a 
 stranger ; and Scott v. Gallagher, 14 Serg. & Rawle, 388 ; Llewellyn v. Mackworth, 
 Barnard. Ch. Rep. 445, 449 ; Dare v. Beardsham, 1 Cas. Ch. 88 ; and Cholmondeley v. Clinton, 
 2 Jac. & Walk. 1, 145, contra. See, also. Basket v. Pierce, 1 Vern. 236, and Townshend v. 
 Townshend, 1 Bro. C. C. 551. 
 
 So both mortgagee and mortgagor may be barred by a possession adverse to both 
 (Harrison v. Harrison, 1 Call, 419, 438).; and the real cestui que trust was held barred, in 
 analogy to the statute, by a possessMn of slaves claimed to be for the use of another, 
 the whole being adverse to the true beneficial owner. Spottswood v. Dandridge, 4 Hen. 
 & Munf. 139, 145. And see Wallace v. Dufiield, 3 Serg. & Rawle, 521, 525. 
 
 18. Analogous to the above is the limitation set by courts to a statute power, conferred 
 by several of the United States upon executors or administrators, to sell real estate of the 
 testator or intestate for the payment of his debts. On this power, in Massachusetts and 
 Connecticut, these statutes impose no limitation of time. But the courts say the execu- 
 tors, &c., must come within a reasonable time to make the sale ; and they fix this to fifteen 
 years, in analogy to the statutes of the same States limiting the exercise of a right of 
 entry to that time. Hicard v. Williams, 7 Wheat. 59, 113—120. 
 
 19. So all trusts which are not express aiM direct, nc^ cognizable in a court of equity 
 exclusively, are aflfected by the Statute of Limitations even as between trustee and cestui 
 que trust. It therefore applies to the whole class of trusts arising by implication or con- 
 struction. Thompson v. Blair, 3 Murph. 583 ; per Sir William Grant, M. R., in Beckford 
 V. Wade, 17 Ves. 97 ; Decouche v. Savatier, 8 John. Ch. Rep. 316 ; Goodrich v. Pendleton, 
 
 3 John. Ch. Rep. 384, 888 ; Van Rhyn v. Vincent, I M'Cord's Ch. Rep. 813 ; Walker 
 *687 V. Walker, 16 Serg. & Rawle, 379, *384 ; Shaver v. Radley, 4 John. Ch. Rep. 210 ; 
 
 Farnam v. Brooks, 9 Pick. 313 ; Fills v. Torrance, 4 Hawks, 413 ; Jones' Executors 
 V. Person, 3» Hawks, 269, 290. As on a bill by a trustee under a first deed, to set aside a 
 second conveyance from the same grantor as fraudulent, and have the claimants, under 
 the last, declared and made trustees to the plaintiff on account of the fraud. Such trust 
 not being direct, but only to be made, or framed or implied by the court, and thfe cestuia 
 que tru^t under the second conveyance having been in adverse possession more than 
 twenty years, the statute was held to apply. Townshend v. Townshend, 1 Brown's Chan. 
 Cas. 550, 554, per Lord Commissioner Ashurst. And see per Taylor, C. J., in Jones v. 
 Person, 2 Hawks, 290. So where the plaintiff claimed as cestui que trust under a deed of 
 1665, made by one against the defendant, who had been twenty-five years in possession as 
 cestui que trust under a subsequent deed of 1693 made by another ; and fraud was charged. 
 Llewellyn v. Mackworth, Barnardist. Ch. Rep. 445; 449. So a fine and five-years non. 
 claim of t, trust holden in tail were held to bar the remainder. Basket v. Pierce, 1 Vern. 
 226 ; Allen v, Sayer, 2 Vern. 368, S. P. So where an executor sold a term in fraud of the 
 estate ; and the bill was to set aside the purchase, and declare the purchaser a trustee on 
 account of the fraud. Andrew v. Wrigley, 4 Brown's Chancery Cases, 125 ; Bonney v. 
 Ridgard, cited 4 Brown's Chancery Cases, 138 ; and also cited, and fully stated and com- 
 mented upon, 17 Ves. 97 ; and now reported in Cox's Cas. in Ch. 145, S. P. So of a bill to 
 set aside a sheriff's sale. Bearfield v. Stevens, 1 Harp. Ch. 52 ; Bond v. Brown, Id. 270. 
 So of a bill to charge one as purchaser from a trustee. Thompson v. Blair, 3 Murph. 583. 
 593 ; Rankin v. Bradford, 1 Leigh, 163, contra. So on a bill upon the Kentucky law of 
 real estate to set up a junior entry of lands against a senior entry and patent of the 
 defendant, he having held adversely for twenty years. Elmendorf v. Taylor. 10 Wheat. 
 152. And see Mills' Heirs vs. Bodley, 4 Monroe, 249 ; and Estill v. Patrick, Id. 308, and 
 other cases under this law, infra. So as to bills in general to set aside deeds, sales, or 
 other acts, for actual or constructive fraud, the statute runs after the fraud is discovered 
 by the party injured, and he is freed from the control of the opposite party. Fraud 
 includes an advantage taken of ignorance, mistake, or mental imbecility, &o. And the 
 rule extends also to purchases by trustees, agents and other persons holding relations 
 inconsistent with an equitable right of purchase. Medlicott v. O'Donel, 1 Ball & Beatty, 
 156, 185, l'B6, 167 ; Whalley v. Whalley, 3 Bligh, 1 ; Jones v. Person, 2 Murph. 390, per 
 Taylor, Ch. J. ; Hawley v. Cramer, 4 Cowen's Rep. 717, 742 ; Jenison v. Hapgood, 7 Pick- 
 ering, 1 ; Davis v. Simpson, 5 Harr. & John. 147 ; Thompson v. Blair, 8 Murph. 583, 698 ; 
 
RBC. II.] JPresumption of PaymejU. 575 
 
 Banks v. Judah, 8 Conn, Bep. 145 ; Gregory v. Gregory, Cooper's Ch. Kep. 201 ; ThomM 
 V. White, 3 Litl. 183 ; Haddix's Heirs v. Davison, 3 Monroe, 41 ; Breckenridge v. Churoliill, 
 .3 J. J. Marsh. 15 ; Crane v. Prather, 4 J. J. Marsh. 77, 78 ; Mulcahy v. Kennedy, 1 Kidgw. 
 Ir. P. C. 331. And see 2 Id. 397 ; and Champion v. Eigby, 1 Russ. & Mylne, 539 ; S. C, 1 
 Tamlyn, 421. 
 
 Where the question is upon fraud in respect to lafid, or upon a land trust, &c., according 
 to all the cases (see especially Medlicott v, O'Donel, 1 Ball & Beat. 156 ; Hawley v. Cramer, 
 4 Cowen's Rep. 717, 748 ; Bunce v. Wolcott, 2 Conn. Rep. 27 ; Ward v. Van Bokkelin, 1 
 Paige, 100, 101) ; the limitation is the same with the statute bar to a right of entry ; 
 generally twenty years ; and in cases of personal property the same as the statute bar to 
 an action of assumpsit, usually six years. Booth v. Earl of Warrington, 4 Bro. P. C. by 
 Toml. 1G3 ; South Sea Company v. Wymondsell, 3 P. Wms. 143 ; Kane v. Bloodgood, 7 
 John. Ch. Rep. 90 ; Hawley v. Cramer, 4 Cowen's Rep. 717, 725, 743, 748. And see Beard 
 V. Griggs, 1 J. J. Marsh. 28. 
 
 20. Other rules make a very broad opening for the application of the statute. Where 
 the remedy in chancery is concurrent with that in courts of law, even though there be a 
 direct trust, and also where legal titles or legal demands are drawn in question by 
 chancery, or even where there are rights at law analogous to that cognizable in chancery 
 (see Kane v. Bloodgood, 7 John. Ch. Rep. 90), and Hovenden v. Lord Annesley, 2 Schoales 
 & Lefroy, 629, 630 ; Miller's Heirs and Devisees v. M'Intyre, 6 Pet. 61, 65, 66) ; if in the 
 two first cases, there be a statute limitation at law on the same subject, or in the last on 
 the analogous subjects, the same time will bar in chancery ; for equity follows the law. 
 After considerable conflict of opinion even upon the two former points, after the statute 
 bar had been often evaded by going into chancery in respect to legal claims, under the 
 notion of their being mixed with fraud and trust, and obtaining a sanction of the evasion 
 by the inadvertent opinions of several chancellors, the above rules seem to be fully 
 *688 established. See *Bertine v. Vftriani 1 Edw. Ch. Rep. 348 ; Parnam v. Brooks, 9 
 Pick, 212 ; Lewis v. Marshall, 5 Pet. 470 ; Falls v. Torrance, 4 Hawks, 412. 
 
 In the 26 Car. II, money was in deposit, for which debt would have lain. But in regard 
 this was barred by the statute, the depositor went to chancery avowedly to evade the 
 statute, under the notion of direct and express trust. And the evasion was sanctioned by 
 the court, though the statute bar was there insisted on. Lord HoUis' Case, 2 Ventr. 345. 
 This would of course have carried the statute away from the numerous oases of bailment, 
 had the decision been followed out. In 1792, this was taken for law by the Virginia 
 Court of Appeals, who extended it to a bill against a sheriff for money collected upon 
 execution, and fraudulently unaccounted for. Hunter & Herndon's Ex'rs v. Spotswood, 
 1 Wash. 145. The same idea was entertained in a court of law as to money received in 
 trust by an agent. Grant v. Beall, 4 Harris & M'Hen. 419, since overruled in Green's 
 Ex'x v. Johnson, 3 Gill & John. 396, 397. And as late is 1831, Chancellor Kent extended 
 the same doctrine to questions between bailor and bailee, principal and factor, principal 
 and agent, &e. Coster v. Murray, 5 John. Ch. Rep. 222, corrected on appeal, 20 John. 
 Rep, 576, S. C. The same doctrine was formerly held in Pennsylvania (Styles v. Donald- 
 eon 3 Dall. 264) ; and as late as 1826, the Supreme Court of that State inclined strongly 
 that the statute does not apply to a deposit of money, and a tortious conversion by the 
 depositee. Johnston v. Humphreys, 4 Serg. & Rawle, 394. At an early period in England, 
 on a bill filed by the executors of Heath, C. J., against his prothonotary for an account of 
 fees received by him to the testator's use, the application of the statute was denied. 
 Heath V. Heuey, 1 Cas. Ch. 20. 
 
 The notion upon which these cases proceeded may now be considered as entirely 
 exploded ; and the authorities in support and illustration of the opposite doctrine so clear, 
 that great certainty and safety now prevails in this branch of equitable jurisprudence. 
 Van Hook v. Whitlock, 3 Paige, 409 ; Bertine v. Varian, 1 Ed. Ch. Rep. 343 ; Smith v. 
 Clay, 3 Bro. C. C. 639, note; Bond v. Hopkins, 1 Sch. & Lef, 413; 10 Ves, 466,467;" 
 Elmendorf v. Taylor, 10 Wheat. 152, 168 ; Thomas v. Brockenborough, 10 Wheat, 146, 
 149, 150 ; Roosevelt v. Mark, 6 John. Ch. Rep. 366 ; Hinton v. Fox, 3 Litt. 380 ; Brecken- 
 ridge V. Churchill, 8 J, J, Marsh. 15; Hodge v, Owings, 5 Monroe, 91, 93; Lewis v. 
 Marshall, 5 Pet. 470; Banks v. Judah, 8 Conn. Rep, 145. And see Lorton v. Gore, 1 Dow. 
 & Clark, 190. 
 
 Thus, a bill, concurrent with the action of account, by an adult, filed for an account of 
 rents and profits received while he was an Infant, was holden to be barred by the lapse 
 of six years. Lockey v. Lockey, Prec, Ch. 518 ; Bertine v. Varian, 1 Ed. Ch. Rep. 343 ; 
 Stackhouse v. Barnston, 10 Ves. 453 ; and Reade v. Reade, 5 Ves. 744, S. P. And see 
 Green v. Jolinson, 3 Gill & John. 389. So of a bill for waste against tenant for life, who 
 has sold the timber, and so is Uable in assumpsit. Hony v. Hony, 1 Sim, & Stu. 568, So 
 a bill by a tenant in common, for an account against his co-tenant (Prince v, Heylin, 1 
 Atk. 493), and this too, though there be a trust ; and for this reason, the last case was 
 once doubted, 1 Atk, 493, So on a bill filed to recover money collected by an agent, 
 though held in trust ; and the court said every bailment might as well be considered a 
 trust as this. Sturt v. Mellish, 2 Atk. 610, So on a bill filed by a stockholder against 
 the company for a dividend (Kane v. Bloodgood, 7 John. Ch. Eep. 90), or to set aside a 
 
576 Of. Presumptive, Miidence, [ch. x. 
 
 Bale, voidable aa having been made by a majority of the corporate stockholdeis to them- 
 selves. Banks v. Judah, 8 Conn. , Bep. 145. So of a set-off of a personal mortgage 
 against a bill filed by a distributee for an account of the intestate's estate. Watkins v. 
 Harwood, 2 Gill & John. 307. So on a bill filed to charge the estate of a deceased partner 
 with a debt. Fisher's Ex'rs v. Tucker's Representatives, 1 M'Cord's Ch. Rep. 169. So on 
 a bill filed to obtain relief against usury (Hodge v. Owings, 5 Monroe, 91, 93 ; Brecken- 
 ridge V. Churchill, 3 J. J. Marsh. 11, 15), or to rectify a deed for fraud or mistake as to 
 the quantity of land. Haddix's Heirs v. Davison, 3 Monroe, 39, 41 ; Poague v. Allen, 3 J. 
 J. Marsh. 431, 433. So of a bill against an executor, to accoupt and pay a debt (Webster 
 V. Webster, 10 Ves. 93 ; More v. White, 6 John. Ch. Eep. 366, 373) ; or for an account of 
 tithes (Collins v. Archer, 1 Buss. & Mylne, 384) ; or by a legatee for an account, and to 
 pay debts and legacies, in which case on accounting before the master the legatee was 
 allowed to object the statute bar against the debt, though the executor refused (She wen 
 V. Vauderhorst, 1 Russ. & Mylne, 347) ; or against one to whom another's goods have come, 
 and who is bound to deliver or account for them. Van Rhyn v. Vincent's Ex'rs, 1 M'Cord's 
 Ch. Bep. 310. A bill to enforce an oral contract to convey land, the vendee not having 
 
 had possession, was held barred in five years, the Kentucky limitation to an action of 
 *689 *assumpsit. M'Milliu, 7 Monroe, 560, 567. And see 4 Monroe, 193. And five years 
 
 adverse possession by the purchaser of a slave from the mortgagor, without notice, 
 will bar the mortgagee's bill. Young v. Wiseman, 7 Monroe, 371,373. So where the, bill is 
 brought for discovery only, the statute will be a bar. Van Rhyn v. Vincent, 1 M'Cord's Ch. 
 Hep. 310, 313 ; Lansing v. Starr, 3 John. Ch. Rep. 150. But if the action at law were brought 
 before the bill of discovery is filed, the plea to the bill must aver that the statute was 
 pleaded to the action. M'Gregor v. 'The, East India Co., 3 Sim. 453. So the statute 
 is a bar wherever an action on the case will lie for the subject of the bUl. , Hposevelt v. 
 Mark, 6 John. Ch. Rep. 366. So to a bill to compel the stockholders of a dissolved corpo- 
 ration to pay its debts, &c., pursuant to its statute charter ; for debt or assumpsit is a 
 concurrent remedy. Van Hook v. Whitloqk, 3 Paige, 409. So where assumpsit will lie 
 (as, semb. it will), for money paid by one in behalf of another on a joint adventure between 
 them. Kingslaud v. Roberts, 3 Paige, 193, per Walworth, C, at 194. So where one of 
 two joint owners takes the goods, and agrees to account to the other for them. Murray 
 V. Coster, 30 John. Rep. 576. So of a bill filed by an heir, to reclaim a slave belonging 
 to his father, who intrusted the slave to another. His father's administrator refused to 
 sue, whereby the heir was put to his bill both against , the administrator and bailee ; but 
 held that the statute applied. Thomas v. White, 3 Litt. 177, 183, 184. So of a bill filed 
 to recover a legacy in ■ New York, against an executor, there being a statute of that state 
 giving an action, as we saw by the cases and statutes cited smpra; in addition to which 
 Bee Decouche v. Savatier, 3 John. Ch. Rep. 316, 31*7 ; and Coster v. Murray, 5 John. Ch. 
 Hep. 533, where Kent, C, overlooked the question on the statute remedy. But he ques- 
 tions his former decision and dicta, for that reason, in Kane v. Bloodgood, 7 John. Ch. 
 Hep. 135 to 137. He is sustained in that distinction by Wisuer v. Barnet, 4 Wash. C. C.Hep, 
 639, 640 ; and by Souzer v. De Meyer, 3 Paige, 574. But we must except a legacy charged 
 on land. Peletreau v. Rathbone, 18 John. Rep. 438. Whether the legal limitation of 
 remedies for legacies and distributive shares applies under the statute provisions of New 
 Jersey, Washington, J., doubted. Wisner v. Barnet, 4 Wash. C. C. Rep. 639 to 641. For 
 this doctrine in Massachusetts, see Burditt v. Grew, 8 Pick. 108 ; and in Pennsylvania, the 
 opinion of Huston, J., in App v. Driesbach, 3 Rawle, 301 to 303. The statute limitation 
 applies to a bill filed by a client against his attorney, to recover money which the latter 
 has collected for the former. Goodrich v. Pendleton, 3 John. Ch. Rep. 384 ; Hawley v. 
 Cramer, 4 Cowen's Rep. 717. So to a bill filed against the assignee of a mortgage, to 
 redeem a negro slave mortgaged to secure money borrowed, the mortgagee having sold 
 the slave absolutely to the defendant, who purchased bona fide, and held the slave adversely 
 for more than three years, the North Carolina Statute of Limitations (Bell v. Beeman, 3 
 Murph. Bep. 373, 377) ; and this though equity had exclusive jurisdiction. The court 
 adopted the statute from analogy. Whether the statute applied to a bill by partners, 
 inter se, for an account, the cases seemed to leave a little doubtful, with a strong 
 tendency, however, to the affirmative (Bridges v. Mitchell, Gilb, Eq. Bep. 334, 335 ; Hol- 
 lingshead's Case, 1 P. Wms. 742 ; Bay v. Bogart, 3 John. Cas. 433 ; Gover v. Hall, 3 Harr. 
 & John. 43 ; M'Nair v. Ragland, 8 Murph. 139 ; Codman v. Bodgers, 10 Pick. 112), till 
 some recent decisions, which have settled the question in favor of the bar, upon the obvious 
 principle that the bill is concurrent with an action of account. Alwater v. Fowler, 1 Edw, 
 Ch. Bep. 417. And see per Walworth, C, in Kingsland v. Eoberts, 2 Paige, 198, 194 ; 
 Lansdale v. Brashear, 3 Monroe, 330, 333 ; Patterson v. Brown, 6 Monroe, 11, 13, 13. By 
 the two latter cases, however, the statute does not run, till after dissolution of the partner- 
 ship. These adopted the statute from analogy. The statute applies to a bill of revivor, 
 by the administrator of one partner against the other ; though not if the matter proceed 
 to a decree before the latter bill was filed. Hollingshead's Case, 1 P. Wms. 743. The 
 statute will be allowed on a bill for partition. Straughan v. Wright, 4 Band. 493 ; Lyles 
 V. Lyles, Harp. Ch. Rep. 388. 
 So far the cases have gone mainly upon the concurrent remedy. But as remarked at 
 
SEC. II.] Founded on Statutes of limitations. 577 
 
 the head of this section, the application of the statute upon analo^cal grounds, has long 
 been equally familiar to courts of equity. 3 Monroe, 31. A leading illustration of this 
 ■will be found in the usual bill for enforcing an eqtiitable title to land. If at law, the stat- 
 ute would have operated against an action to recover land, it shall prevail against a Mil 
 for that purpose. Upon this principle, in Kentucky, twenty years' adverse possession bars 
 an equitable claim arising upon an entry of land (a kind of equitable contract for land), 
 under the Kentucky law of titles. Miller's Heirs and Devisees v. M'Intyre, 6 Pet. 61 ; 
 Lansdale v. Brashear, 3 Monroe, 381 ; Lewis v. Marshall, 5 Pet. 470 ; Shepherd's Heirs v. 
 Young, 1 Monroe, 203, 205, and Broxdale v. Speed, cited at the last page ; Wilson's Heirs 
 V. Bodley, 2 Litt. Rep. 55 ; Floyd's heirs v. Johnson's heirs. Id. 109 ; Reed v. Bullock, Litt. 
 Sel. Cas." 510, 513, .')13, &c. The time runs in these cases from the issuing of the adverse 
 grant. Mills' Heirs v. Bodley, 4 Monroe, 249. See other cases under this Kentucky law 
 supra. The above Kentucky cases and others may be regarded as establishing the gen- 
 eral position that adverse possession is equally a bar to an equitable, as of a legal claim 
 fpr land. Per Marshall, C. J., in Hunt v. Wickliffe, 2 Pet. 301, 212; Peyton v. Stith, 5 
 Pet. 485. In pursuance of this principle, an issue of devisavit vd non vrill not be granted 
 after an adverse possession of twenty years. Tucker v. Sanger, M'Clel. 434, 438. 
 
 So, from analogy, bills respecting personal property are barred, though the remedy be 
 not concurrent at law. We have seen an instance of this in Bell v. Beeman {supra), 
 where the statute was applied in favor of the purchaser from a chattel mortgagee, against 
 the mortgagor's bill to redeem. So an account for rents and profits of land, claimed 
 under an equitable title, will not be carried back more than six years, in analogy to the 
 action at law for mesne profits ( per Lord Camden, in Smith v. Clay, 3 Bro. C. C. 640, note ; 
 Reade v. Eeade, 5 Ves, 749, 750 ; Stackhouse v. Barnston, 10 Ves. 469) ; and will some- 
 times, under special circumstances, he restrained to the time of filing the bill. Pickett v. 
 Loggon, 14 Vesey, 315, 243, 244 ; per Lord Hardwicke, in Dormer v. Fortescue, 3 Atk. 
 130 ; Pettiward v. Prescott, 7 Vesey, .^47 ; Rosevelt v. Post, 1 Edw. Ch. Rep. 579, 583, and 
 the cases there cited. So a bill of revivor cannot be brought after a delay of six years. 
 HoUingshead's Case, 1 Wms. 743. See also. 2 Sch. & Lefr. 632. (Where a note is given 
 and stock pledged for its payment, the pledgor's equitable action to redeem the stock 
 accrues when the note becomes due ; and is barred if not brought within ten years there- 
 after, as in like cases of trust ; Roberts v. Sykes, 30 Barb. 173. A creditor of a partner- 
 ship, one member of which has died, cannot maintain a suit in equity against the 
 representatives of the deceased partner without averring and proving that the surviving 
 partners are insolvent ; 11 Paige, 80 ; 2 Denio, 577; and where the surviving partners are 
 solvent at the death of the deceased, and afterwards fail, the suit to reach the assets of 
 the deceased partner, being of an equitable nature, must be brought within ten years ; 
 Bloodgood V. Bruen, 4 Seld. S63. On a loan at an illegal rate of interest, the borrower 
 assigns to the lender bonds and mortgages in consideration of the loan ; and this assign- 
 ment being void, the borrower has an immediate riglit of action for the securities which 
 is barred after six years from the assignment. Schroeppel v. Corning, 2 Seld. 107.)'. 
 
 The statute limiting the time of a writ of error has Ijeen applied, on the same principle, 
 to the analogous proceedings by bill of review. Smith v. Clay, Ambl. 645 ; S. C, 3 Bro. 
 C. C. 639, note ; Norris v. Le Neve, 3 Atk. 26, 38 ; Edwards v. Carroll, 2 Bro. P. 0. by 
 Toml. 98 ; Litton v. Litton, 4 Bro. C. C. 441 ; Thomas v. Brockenborough, 10 Wheat. 146, 
 149, 450. And see Sherrington v. Smith, 2 Bro. P. C, by Toml. 63 ; Earl of Castlehaven v. 
 Underhill, 3 Ch. Rep. 46 ; Filton v. Earl of Macclesfield, 1 Vern. 287, and Green's Heirs 
 V. Breckenridge's Heirs, 4 Monroe, 541. And it was declared a grave question in Barring- 
 ton V. O'Brien (1 Ball & Beat. 173), whether a supplemental bill to enforce a decree would 
 not be barred by an unexplained delay of twenty years, in analogy to the Irish Statute of 
 Limitations in respect to judgments. Twenty years will bar a bill for a rehearing as 
 well as a bill of review (said by Lord Camden, C, in Smith v. Clay, Ambl. 64^). In 
 analogy to the limitation of a writ of error, the Supreme Court of New York refused to 
 set aside a judgment for irregularity, after ten years (Soulden v. Cook, 4 Wend. 317), and 
 after five years refused to let the plaintiflF enter a vacatur of his own judgment. Barheydt 
 V. Adams, 1 Wend. 161. And see Klinefelter's Leasee v. Carey, 3 Gill & John, 349, 358. 
 
 But there is no limitation of time against showing a judicial proceeding to be void for 
 want of jurisdiction. It will not be valid, though acted under for twenty years. Holyoka 
 V. HasMns, 9 Pick. 359, 363, 364. 
 
 With regard to the presumptive bar in the cases above enumerated, under the last 
 head, and, indeed in all cases, it may be enlarged or avoided by the same disabilities in 
 the claimant which are admissible at law ; as infancy, coverture, insanity, imprisonment, 
 absence, the person not being in esse, or the interest contingent, &c. Miller's Heirs and 
 Devisees v. Mclntyre, 6 Pet. 61 ; Lockey v. Lockey, Prec. Ch. 518 ; per Lord Hardwicke, 
 in Dormer v. Fortescue, 3 Atk. 130 . Rowland v. Best, 3 M'Cord's Ch. Rep. 317, 330 : 
 Pugh's Heirs v. Bell's Heirs, 1 J. J.' Marsh. 403. And see Newburgh v. Bickerstaffe, 1 
 Vern. 396, and YaJlop v. Holworthy, 1 Eq. Cas. Abr. 7 pi. 10. 
 
 Other answers to the presumptive bar are allowed in chancery which are not receivable 
 at law ; at least they are allowable where the remedy is not concurrent with that at law. 
 Accordingly, it is held that time does not run against fraud or concealment, until a dis- 
 
 VOL. 1 73 
 
578 Of JPresumptive Evidence. [ch. x. 
 
 oovery of Buch fraud or concealment by the claimant (Bertine v. Varian, 1 Edw. Ch. Bep. 
 343 , South Sea Co. v. Wymondsell, 3 P. Wms. 143 ; PreVost v. Gratz, 6 Wheat. 497, 498, 
 per Story, J. ; Wamburzee v. Kennedy, 4 Dessauss. 480 : Payne v. Hathaway, 8 Verm, 
 Rep. 213 ; Crane v. Pratheir. 4 J. J. Marsh. 77: Haddix's Heirs v. Davison, 3 Monroe, 41 ; 
 Pugh's Heirs v. Bell's Heirs, 1 J. J. Marsh. 398, 401 ; Roche v. O'Brien, 1 Ball & Beat. 330 ; 
 Dunbar v. Tredennick, 3 Ball & Beat. 304 ; Blennerhasset v. bay, 3 Ball & Beat. 139 ; per 
 Lord Redesdale, in Hovenden v. A^iiesley, 3 Sch. & Lefr. 634; per Lord Manners, in 
 Medlicott v. O'Donel, 1' Ball & Beat. 166 ; per Lord King, in Western v. Cartwright, Sel. 
 Cas. Ch. 36 ; Whatton v. Toone, 5 Madd. Rep. 54, 55 ; per Colcock, J., in Botifeur's 
 *691 Sureties v. Wevman, 1 M'Cord, Ch. Rep. 161 ; Jones v. Conowav, 4 *Yeates, 100, 
 111 ; Hamilton "v. Shepperd, 3 Murph. 115 ; Thomas v. White, 3 Litt. 183 ; Pyle v. 
 Beckwith, 1 J. J. Marsh. 445 ; Breckenridge v. Churchill, 3 J. J. Marsh. 15) ; at least not 
 till the claimant have the full means of discovery. Farnam v. Brooks, 9 Pick. 212. (In 
 an action to set aside, a deed on the ground of fraud, the statute commences to run six 
 years after the discovery of the facts constituting the fraud. Sears v. Shafer, 3 Seld. 268.) 
 
 Nor does time run against the remedy for a mistake until that be discovered. Crane v. 
 Prather, 4 J. J. Marsh. 77 ; Bertine v. Varian, 1 Edw. C. Rep. 343. And accordingly, 
 removal of triTst property, so as to keep the cestui que trust ignorant ofits place, was held 
 tp be an excuse for delay. Rankin v. Bradford, 1 Leigh, 163. And in one case, where the 
 party was likely otherwise to lose his remedy by bill of review, by the Statute of Limita-, 
 tions, on account of a mistake of the practice in commencing the suit, the chancellor 
 allowed such mistake as an answer to the delay. Webb v. Pell, 1 Paige, 564. 
 
 So it does not run against the remedy for undue influence, till this influence has ceased. 
 Alden v. Gregory, 2 Eden, 280; Roche" v. O'Brien, 1 Ball & Beat. 330 ; Hatch v. Hatch, 9 
 Vesey, 392; per Lord Manners, in Medlicott v. O'Donel, 1 Ball & Beat. 166; M'Cants v. 
 Bee, 1 M'Cord's Ch. Rep. 391. But where the bargain is obtained by undue iidvautage of 
 pecuniary difficulty,' and the injured party knows this; the time runs from the completion 
 of the transaction. This is on the principle that the law cannot in policy allow distressed 
 pecuniary circumstances to excuse delay ; for then there would sometimes be no limita- 
 tion. Hovenden v. Ld. Annesley, 2 Sch. & Lef. 607, 639 ; Medlicott v. O'Donel, 1 Ball & 
 Beat. 156 ; Western v. Cartwright, Sel. Cas. Ch. 34 ; Earl of Deloraine v. Browne, 3 Bro. 
 C. C. 633 ; Hickes v. Cooke, 4 Dow, 16. See also Bir.knell v. Gough, 3 Atk. 538 ; and Ld. 
 Redesdale's observations on that case, 2 Sch. & Lef. 635 ; Moron ey v. O'Dea, 1 Ball & Beat. 
 609 ; likewise 3 Ball & Beat. 118, and Winchecomb v. Hall, 1 Ch. Bep. 40. But see 
 M'Cants v. Bee, 1 M'Cord's Ch. Rep. 391. 
 
 Yet pecuniary distress is allowed to excuse delay where the transaction is the purchase 
 of a reversionary interest. This is an exception to the general rule. See Gowland v. De 
 Faria, 17 Ves. 30, 35 ; Roche v. O'Brien, 1 Ball & Beat. 330 ; Dunbar v. Tredennick, 3 Ball 
 & Beat. 204. But see Earl of Deloraine v. Browne, 3 Bro. C. C. 633 ; Moth v. Atwood, 5 
 Ves, 845 ; and Oliver v. Court, 8 Price, 137, 170. But the claimant is not here excused 
 upon the ground that the interfest has not come into his possession ; for that is only an 
 excuse at law, where the remedy depends on a present right of possession. That ground 
 will not prevent the filing of a bill to avoid the sale. See Andrew v. Wrigley, 4 Bro. C. 
 C. 135. Also per Sir J. Leach, V. C, 5 Madd. Rep. 55. So where an executor wrongfully 
 and in collusion with the purchaser, sells a term for years, which is specifically bequeathed, 
 even though the interests of the legatee be reversionary, he must come to set aside the 
 sale, within the time. Andrew v. Wrigley, 4 Bro. C. C. 125, 138 ; Bonney v. Ridgard, 1 
 Cox's C. C. 145, 147 to 149 ; S. C, 2 Bro. C. C. 130 ; Elliott v. Merriman. Barnardist. Ch. 
 Bep. 78. 
 
 Where the bill was filed by the remainderman for waste, being in nature of an a;ssump- 
 sit (as for the waste of timber cut, for which assumpsit would lie), an acknowledgment (as 
 an accounting with the remainderman within six years for waste) was held to take the 
 case out of the statute, the same as if the action had been for timber sold, at law. Hony 
 v. Hony, 1 Sim. & Stu. 568. 
 
 Whatever th-j ground of avoidance be, whether infancy, fraud, concealment or mistake, 
 the party complainant must state it distinctly in his bill. It is not enough to state in a 
 general way, that he was not in a situation to call the defendant to an account, &c. Mil- 
 ler's Heirs and Devisees v. M'Intyre, 6 Pet. 81 ; Bertine v. Varian, 1 Edw. Ch. Rep. 343. 
 
 The suit shall not be deemed commenced so as to avoid the running of time as to any 
 one of the defendants, till subprena served. Miller's Heirs and Devisees v. M'Intyre, 6 
 Pet. 61. But a suit commenced by one creditor for himself and'others, prevents the run- 
 ning of the statute as to all. Sterndale v. Hankinson, 1 Sim. 393. 
 
 21. We have seen {gu/prd) within what time a cestui que trust, &c., must come to set 
 aside a purchase made by his trustee. It is proper to note, briefly, the cases in which 
 chancery will set aside such purchases. It acts with a view to prevent a breach of confi- 
 dence ; and cut off' all temptation to abuse by any person who is engaged or intrusted 
 with the sale of property for another, either by the party or the law. The trustee is sup- 
 posed to have acquired in the course of his agency a peculiar knowledge of the property, 
 by concealing which from purchasers, he may, if allowed, make advantage to him- 
 self. His duty being to get the highest price by a disclosure of all circumstances which 
 
SBC. n.] Presumptions in Cases of Delay. 579 
 
 *693 shall tend to obtain such price in the market, chancery has *therefore cut off all 
 power in himself to buy, either in his own name or in that of any other ; and 
 without inquiring into the fact of actual abuse, will, on the owner coming in reasonable 
 time, set aside the sale. 8 Ves. 348, 349 ; Mealor v. Kimble, 2 Murph. 272. 
 
 This rule extends to all trustees holding the legal estate, who are made such trustees 
 by the act of the party "for the purpose of selling the trust property, whether the tfust 
 were created by deed, assignment, will or otherwise. Whelpdale v. Cooksbn, 1 Ves. "sen. 
 9, more fully reported 5 Vesey, 683 ; Whichcote v. Lawrence, 3 Ves. 740; Campbell v. 
 Walker, 5 Ves. 678 ; S, C, 13 Ves. 600 ; Lyster v. Lyster, 6 Ves. 631 ; Davoue v. Fanning, 
 
 2 John. Ch. Rep. 253.; Holt v. H<^t, 1 Cas. Ch. 190 ; Keech v. Sanford, 2 Eq. Cas. Abr. 741 : 
 Ex parte Grace, 1 B. & P. 376 ; Fox, v. Macreth, 2 Bro. G. C. 400, and cited 6 Ves. 637, and 
 9 Id. 246 ; per Lord Hardwicke, in Ayliffe v. Murray, 2 Atk. 59 ; Ex parte Reynolds, 5 
 Ves. 707 ; Randall v. Errington, 10 Ves. 428 ; Morse v. Royal, 12 Ves. 855 ; Lowther v. 
 Lowther, 13 Ves. 95 ; Mnproe v. Allaire, 2 Cain. Cas. Err. 188 ; Green v. Winter, 1 John. 
 Ch. Rep. 36 ; Hawley v. Mancius, 7 John. Ch. Rep. 174 ; Holdridge v. Gillespie, 2 John. Ch. 
 Rep. 30 ; Mathews v. Dragaud, 3 Dessauss. Eq. Rep. 25 ; per Woodward, J., and Colden, 
 Senator, in Gallatian v. Cunningham, 8 Cowen's Rep. 361, 372, 377; Bergen v. Bennett, 1^ 
 Cain. Cas. Err. 1,19, 30, per Kent, J. ; Fernam v. Brooks, 9 Pick. 312 ; De Caters v. Le Ray 
 De Chaumont, 3 Paige, 178. So it extends to his factor or attorney employed to sell, or 
 deal in the articles sold. Jackson ex dem. M'Carty v. Van Dalfsen, 5 John. Rep. 43 ; Hall 
 V. Hallett, 1 Coxe's Ch. Cas. 140 ; Hawley v. Cramer, 4 Cowen's Rep. 717, 736 ; Napoleon's 
 Civil Code, art. 1506; per Woodworth, J., in Gallatian v. Cunningham, 8 Cowen's Rep, 
 361, 373. So sometimes to the relation of attorney and client in respect to other busi- 
 ness. Per Lord Eldon, in Morse v. Royal, 13 Ves. 371 ; Wells v. Middleton, Walmsley v. 
 Booth, and Sanderson v. Closse, cited by Lord Eldon in Morse v. Royal, 12 Ves. 372. and 
 the first again cited and approved in Ormond v. Hutchinson, 18 Ves. 51 ; Harris v. "Trem- 
 enheere, 15 Ves. 34 ; Wendell v. Van Rensselaer. 1 John. Ch. Rep. 344 ; Kenney v. Brown, 
 
 3 Ridgw. P. C. (Ireland), 462, 523. So to attorneys, advocates and judges, as to any mat- 
 ter in litigation by or before them (3 Ridgw. Ir. P. C. 501, 522 ; Miles v. Ervin, 1 M'Cord's 
 Ch. Rep. 524) ; to solicitor and client (Champion v. Rigby, 1 Russ. & Mylne, 539 ; S. C, 1 
 Tamlyn 431) ; to agents employed to sell or buy the thing in dispute (Ex parte Lacey, 6 
 Ves. 625 ; Parkist v. Alexander, 1 John. Ch. Rep. 394 ; per Woodworth, J., in Gallatian v. 
 Cunaiugham, 8 Cowen's Rep. 361, 373 ; Ormond v. Hutchinson, 13 Ves. 47 ; Beaumont v. 
 Boulthee, 5 Ves. 485 ; S. C, 7 Ves. 599 ; per Lord Manners, in Medlicott v.O'Donel, 1 Ball 
 & Beat. 164 ; Parnam v. Brooks, 9 Pick. 313. So to surveyors (Oliver v. Court, 8 Price, 
 127) ; to stewards (Lord Lesley v. Rhoades, 3 Sim. & Stu. 41, 49, 50 ; Parnam v. Brooks, 9 
 Pick. 212) ; to auctioneers (per Woodworth, J., in Gallatian v. Cunningham, 8 Cowen's 
 Rep. 361, 373) ; to the attorneys, agents, surveyors and auctioneers of trustees (Oliver v. 
 Court. 8 Price, 137 ; per Woodworth, J., and Colden, Senator, in Gallatian v. Cunningham, 
 8 Cowen's Rep. 361, 373, 877. So to all trustees appointed by law ; as the commissioners 
 and assignees of a bankrupt (Ex parte Tanner, Atwood and Owen v. Foulkes, 6 Ves. 63, 
 n 6 ; Ex parte Lacey, 6 Ves. 625 ; Ex parte Hughes & Lyon, 6 Ves. 617 ; Ex parte James, 
 8 Ves. 337 ; Ex parte Bennett, 10 Ves. 385 ; per Woodworth, J., in Gallatian v. Cunning- 
 ham, 8 Cowen's Rep. 161) ; a trustee appointed by chancery to make sale. Richardson v. 
 Jones, 3 Gill & John. 163 ; De Carters v. LeRay De Chaumont, 3 Paige, 178. So to exec- 
 utors and administrators (8 Ves. 346. 6 Ves. 638 ; Lessee of Moody v. Van Dyke, 4 Binn. 
 43 ; Dodson v. Simpson, 3 Rand. 294 ; Graff v. Castleman, 5 Rand. 195 ; Van Home v. 
 Fonda, 5 John. Ch. Rep. 388 ; Everston v. Tappen, 5 John. Ch. Rep. 497 ; Fellows v. Fel- 
 lows, 4 Cowen's Rep. 682 ; Gordon v. Finlay, 3 Hawks, 339 ; Lovell v. Briggs, 3 N. H. Rep. 
 218 ; Scott V. Burch's Adm'r, 6 Harr. & John. 67 ; Jenison v. Hapgood, 7 Pick. 1). One of 
 two joint d&msees, tenants in common, both holding under an imperfect title, buys in the 
 true title. This inures to the benfit of both. Van Home v. Fonda, 5 John. Ch. Rep. 388. 
 So the rule extends to the agents, solicitors and other assistants of executors and admin- 
 istrators. Currier v. Green, 2 N. H. Rep. 225 ; Oliver v. Court, 8 Price, 137, 164 ; Ex parte 
 James, 8 Ves. 337 ; Owen v. Foulkes, 6 Ves. 630, note 6 ; Ex parte Hughes, 6 Ves. 617 ; 
 Ex parte Bennett, 10 Ves. 385 ; York Buildings Co. v. Mackenzie, 8 Bro. P. C. by Toml. 
 app. 43, 67 ; Whitcomb v. Minchin, 5 Madd. Rep. 91 ; per Woodworth, J., in Gallatian v, 
 Cunningham, Cowen's Rep. 361, 373. So to creditors of a bankrupt. 8 Ves. 350 ; Ex 
 parte Hughes, 6 Ves. 617. So to sheriffs and other officers as to property sold by them on 
 
 execution (Lessee of Lazarus v. Bryson, 8 Binn. 54 ; 2 Rev. Stat. N. Y. 370, § 41) ; 
 *693 to a common agent of *the court in Scotland, answering to our solicitor '(York 
 
 Buildings Co. v. Mackenzie, 8 Bro. P. C. by Toml. app. 42), Whether an attorney 
 for the plaintiff in an execution, can purchase under it for his own benefit. Quere. How- 
 ell V. Baker, 4 John. Ch. Rep. 118. General guardians of minors are within the rule the 
 same as other trustees. Napoleon's Civil Code, art. 1596. And see Ferriss v. Bush, 1 
 Edw. Ch. Rep. 572. So guardians ad Utem. Per Woodworth, J., and Colden, Senator, in 
 Gallatian v. Cunningham, 8 Cowen's Rep. 361, 873, 373, 377 ; per Lord Eldon, in Morse v. 
 Royal, 12 Ves. 371. (When an administrator purchases at his own sale and afterwards 
 conveys the premises by deed, the parties acquiring the title are chargeable with notice 
 of the trust, notice given by the deed ; Ward v. Smith, 3 Sand, Ch. 592. The statute 
 
580 Of Presumptive Mfi'dence, [cH. x. 
 
 may be interposed against legacies, not charged upon the land, as well in equity as at law. 
 Souzer v. De Meyer, 2 Paige, Oh. 574.) 
 
 Courts have occasionally gone far in presuming frauds from other relations of a miscel- 
 laneous character. They have set aside a conveyance from an aged father to his children, 
 in consideration that they should support him ; but who abandoned him. Whelan v. 
 WhSlan, 3 Cowen's Kep. 537 ; 6 N. T. 268. And md. M'Diarmid ^. M'Diarmid, 8 Bligh 
 (N. S.), 874. So, to his son's widow, that she should live with and aid him ; but who left 
 him. Jenkins v. Jenkins, 3 Monroe, 327, 329. So, of a conveyance from an ignorant 
 voung man to his uncle (a pettifogger) upon inadequate consideration (Hall v. Perkins, S 
 VVend. 626) : and from an aged solitary female to her collateral relations (Gore v. Sum- 
 mersall, 5 Monroe, 505) ; and in another case to a Methodist preacher (as a consideration 
 for his spiritual services), he having wrought her into a state of enthuaasm. Norton v. 
 Belly, 2 Eden, 286. 
 
 The rule is held not to extend to public officers or trustees folding stock for general 
 distribution or sale on certain terms, with a view to create a moneyed corporation. In 
 such a case they may distribute to themselves, among others, in their discretion, unless 
 restrained by statute. Haight v. Day, 1 John. Ch. Eep. 18 ; Walker v. Devereux,4 Paige, 
 229. 
 
 So, in private dealings, a pledgee for a debt, with power to sell on default of payment, 
 may himself become the purchaser. Hendricks v. Robinson, 3 John. Ch. Rep. 283, 810, 
 311. So mortgagees may purchase the equity of redemption from the mortgagor (per 
 Lord Eedesdale in Hickes v. Cooke, 4 Dow's P. C. 28), or, it seems, under a power of sale 
 granted by the mortgage to himself (Bergen v. Bennett, 1 Cain. Cas. Err. 1, 19, 20); a 
 right since expressly conferred by statute in New Tork. 3 R. S. 546, § 7. So, a creditor 
 pledgee may purchase the subject of pledge from the pledgor (Chambers v. Waters, 3 
 Sim. 43) ; and a creditor may purchase on execution. Stratford v. Twynam, Jac. 418. 
 (After a chattel mortgage has been regularly foreclosed, and the property bought in by 
 the mortgagee, and the avails arising from the sale credited upon the mortgage debt, evi- 
 dence to show the value of the property covered by the mortgage is not admissible 
 against the mortgagee or his assignee in favor of third parties. The mortgage authorizes 
 the sale, and is, in effect, a stipulation on the part of the mortgagor that the sale shall 
 fix the price and value of the property. Olcott v. Tioga R. R. Co., 40 Barb. 179. If the 
 mortgage authorize a public or private sale, and the mortgagee takes possession and omits 
 to sell, it may be shown that he might have sold and realized his debt ; the mortgagee 
 acquires the legal title on the failure of the mortgagor to perform the condition. Case 
 V. Broughton, 11 Wend. 106 ; the interest of the mortgagorin possession, by right, before 
 such failure, may be sold on execution ; not so after the mortgagee has taken possession 
 under the mortgage. Langdon v. Buel, 9 Wend. 80 ; Mattison v. Baucus, 1 Const. 295. 
 When authorized, a fair private sale is a valid foreclosure. Chamberlain v. Martin, 43 
 Barb. 607 ; Butler v. Miller id. 496 ; Shuart v. Taylor, 7 How. Pr. 251. Strictly speaking, 
 thQ mortgage transfers a defeasible title to the property, which is defeated by a perform- 
 ance of the condition. If the mortgagee sells a part of the property, which is sufficient 
 to satisfy his debt, with interest and expenses, his title to the remaining part is extin- 
 guished, i. e., reinvested in the mortgagor. Charter v. Stevens, 3 Denio, 33 ; 2 Sand. Ch. 
 78. A judgment creditor has no right to sell, on execution, household furniture covered 
 by a chattel mortgage in such a manner as to disperse the property and put it beyond 
 the reach of the mortgagee. Manning v. Monaghan, 23 N. Y. 539 ; 10 Bosw. 231. It 
 seems that the pledgee cannot, as against the pledgor, acquire the title under a sale of 
 the thing pledged ; though it is admitted that a sale and purchase by him is only voida- 
 ble, not void, 40 Barb. 190 ; Whitlock v. Heard, 13 Ala. Rep. 776. The sale of the prop- 
 erty pledged is usually provided for in the agreement creating the pledge, and it must be 
 shown that the mode agreed upon has been followed. Edw. on Bail. 360, 261. As to the 
 right of the party standing in a fiduciary relation to acquire the title on a sale. See 
 Dobson V. Racey, 4 Seld. 316. In the case of a real estate mortgage, it is held that after 
 a decree of foreclosure for the amount due, with interest, a surety who has given his note 
 for the interest; may prove the decree of foreclosure and insist that the proceeds of the 
 sale under the decree be first applied to the payment of the principal and interest. Nich- 
 ols v. Smith, 43 Barb. 381.) 
 
 There is also onother largo exception to the rule. There is no doubt that the trustee, 
 agent, &c., may, in all cases, openly and in his own name, purchase from his cestui qui 
 trust or principal, &c., provided it appear that he has made full and fair disclosures of his 
 knowledge, and takes no improper advantage. Randall v. Errington, 10 Ves. 433 ; 1 
 Wils. C. C. 1 ; Ld. Lesley v. Rhoades, 3 Sim. & Stu. Rep. 49, 50 ; Bolton v. Gardner, 3 
 Paige, 373 ; Lovell v. Briggs, 3 N. H. Rep. 318. The rule is not that the trustee cannot 
 buy from his cestui qui trust; but that he shall not buy from himself. Per Ld. Eldon, in 
 Ex parte Lacey, 6 ves. 625, in Downes v. Grazebrook, 8 Meriv. 208, and in Cane v. Ld. 
 Allen, 3 Dow's P. C. 389, 394 ; Parnam v. Brooks, 9 Pick. 335 ; Davidson v. Gardner, 
 Sugd. Law of Vend. 435, 436; Parkes v. White, 11 Ves. 209, 335 ; Clancy's Rights of 
 Husband & Wife, 355, 356; Roper's Law of Husb. & Wife, 262 ; per Kent, Ch., in Davoue 
 V. Fanning, 2 John. Ch. Eep. 366, 267, citing and commenting on Muuroo v. Allaire, 3 
 
SKC. 
 
 II.] In Cases of Delay and Matters of Trust. 581 
 
 Cain. Cas. Err. 183, 193 ; Hendricks v. Robinson, 3 Jolin. Ch. Rep. 311, per Kent, Ch. ; 
 M'Cants v. Bee, 1 M'Cord's Ch. Rep. 389. It will also be seen by several of these authori- 
 ties, that the trustee or agent, against whom jealousy arises, must in general be one 
 having power to sell or deal in the subject matter of what is confided to him. If he be 
 constituted for other purposes, he does not come within the prohibition. 
 
 As to all this class of purchases and contracts by trustees, &c., valid at law, but liable 
 to be opened in equity, terms are always imposed so as to save the advances of the trus- 
 tee, &c., and there is no doubt that fairness originally, accompanied with other circum- 
 stances (and an unexplained delay is a very important one), will lead the court to with- 
 hold its interference, though the lapse of time be short of twenty years ; and in some cases 
 much short of that time. On this head, of course, no time can be fixed. The judicial 
 dicta are very general, that the party must come within a reasonable time, but vary 
 greatly as to the precise period ; opening a space for a wide discretion. 5 Ves. 280 ; 1 
 Jae. & Walk. 59 ; 2 Seh. & Lef. 672 ; Gregory v. Gregory, Coop. Ch. Cas. 201 ; Whatton v. 
 Toone, 5 Mad. Rep. 54; Norris v. Le Neve, 3 Atk. 26, 38 ; Price v. Byrn, cited 5 Ves. 681 ; 
 Morse v. Royal, 12 Ves. 355 ; Western v. Cartwright, Sel. Ch. Cas. 34 ; Medlicott v. 
 *694 O'Donel, 1 Ball & Beat. 156 ; Chalmer v. Bradley, 1 Jac. & Walk. 51 ; Oliver *v. Court, 
 8 Price, 127, 167, 168 ; Prevost v. Gratz, 6 Wheat. 481 ; Hall v. Noyes, cited 3 Ves. 
 748 ; Bergen v. Bennett, 1 Cain. Cas. Err. 1 ; Butler v. Haskell, 4 Dessaus. Eq. Rep. 651. 
 
 Various circumstances also ; viz : the existence of any of the legal incapacities, infancy, 
 coverture, &c., and ignorance, as that the trustee, &c., was the real jiurchaser, the fact that 
 the ceetids qui trust were a numerous body of men, as creditors, or a religious sect, and 
 the like, are adducible to repel the presumption, or extend the time beyond the statute of 
 limitation. Bunce v. Wolcott, 2 Conn. Rep. 27 ; Chalmer v. Bradley, 1 Jac. & Walk. 51, 
 62, per Sir T. Plumer, M. R. ; Morse v. Royal, 12 Ves. 355, 374 et seq. : Randall v. Erring- 
 ton, 10 Ves. 423 ; Whatton v. Toone, 5 Mad. Rep. 54 ; Whichcote v. Lawrence, 3 Ves. 
 470, 752 ; Anon. Case in Exch. cited by Richards, a/rg. 6 Ves." 632 ; York Buildings Comp. 
 V. Mackenzie, 8 Bro. P. C. by Toml. 42 ; Attorney-General v. Ld. Dudley, Coop. C. C. 146 ; 
 Hughes V. Wynne, 1 Turn. & Russ. 307 ; Purcell v. M'Namara, 14 Ves. 91 ; Pickett v. 
 Loggon, 14 Ves. 214; Hatch v. Hatch, 9 Ves. 292 ; Murray v. Palmer, 2 Sch. & Lef. 474 ; 
 Hardwick v. Mynd, 1 Anstr. 109 ; Badney v. Coussmaker, 12 Ves. 136. 
 
 We have also noticed the effect of delay in respect to purchasing the expectant 
 interests of reversioners. The contingent interest of heirs, apparent and presumptive, 
 comes withia the same reason. It is proper to say that in respect to these and the like 
 purchases and transactions, if the party complaining comes in reasonable time, and the 
 bargain appears to have been disadvantageous, it will be set aside without regard to 
 the age of the complaint, on the condition of refunding .the defendant ; unless indeed the 
 sale be at public auction. Then it shall stand. Shelly v. Nash, 3 Mad. Rep. 232, 235, 
 236 ; Gowland v. De Paria, 17 Ves. 20 ; Headen v. Rosher, 1 M'Well. & You. 89 ; per 
 Lord Eldon, in Davis v. The Duke of Marlborough, 2 Swanst. 139, 147, 151 (Am. ed ) ; 
 Marsack v. Reeves, 6 Mad. Rep. 108 ; Evans v. Cheshire, Belt's Supplem. to Ves. 300, 306, 
 et seq.; Bowes v. lieape, 3 Ves. & Bea. 117. It lies with the purchaser to show a full 
 consideration ; otherwise it will be presumed to have been inadequate. Hincksman v. 
 Smith. 3 Russ. 433. 
 
 In these last cases, too, ignorance and fraud as well as continued distress, will enlarge 
 the limitation of time (Rochfe v. O'Brien, 1 Ball & Beat. 330) ; and so, it is presumed of 
 other excuses applicable in like cases. These, however, being out of the way, time runs 
 from the completion of the contract, or from the time when all legitimate excuse ceases. 
 Medlicott v. O'Donel, 1 Bafl & Beat, 156 ; Whalley v. Whalley, 3 Bligh, 1, 13 ; per Lord 
 Manners in Roche v. O'Brien, 1 Ball & Beat. 343 ; Earl of Deloraine v. Browne, 3 Bro. 
 C. C. 633. 
 
 32. Certain other equitable and legal rights are also presumed to have been waived by 
 neglect for a long time ; and especially if the lapse of time be accompanied with other 
 acts showing an intention to waive them. Among these are rights of appropriation. 
 Persons claiming under a grantee of the crown certain mud lands covered with navigable 
 water, granted for the evident purpose of having them reclaimed from the sea, and this 
 being a consideration of the grant, apparent on its face, they were holden to have waived 
 their rights by non-user, the ground not having been appropriated by them for a great 
 number of years, See Attorney-General v. Richards, 2 Anstr. 603, in connection with 
 Parmeter v. The Att. Gen., the same case, on appeal, 1 Dow's P. C. 316. 
 
 But where the estate and manor of Ravenscroft was granted, reserving to the grantor 
 and his heirs " the Wych houses, salt works and brine pits, and a piece of land adjoining 
 thereto, &c., and all springs, veins and mines, of brine, salt or salt rock," &c., with liberty 
 to open new pits ; and free ingress, &c., though the grantee had long held the estate, 
 and it had passed to others by grants not noticing the reservation ; and the owner of the 
 soil had enjoyed, and the pits been filled up, and the ground smoothed ; yet held that 
 mere non-user or non-appropriation would not warrant the presumption of a waiver ; and 
 this from the nature of the reservation ; for the possession was not adverse ; it was con- 
 eistent with the reservation ; and there had been no resistance to the working of the 
 mines under the reservation. Mines are often reserved to be worked for the occasion 
 
582 Of Preswmptive Mitdence, [gh. x. 
 
 lying unrought for generations. They are often kept and indeed' acquired -with the 
 express view of being suffered to repose until other mines are exhausted. But the master 
 of the Bolls admitted there were many cases of a different character, where, from a 
 non-exercise of the right, an inference of abandonment would arise. Seaman v. Vawdrey, 
 16 Ves. 380, 391, 392. And in Adair v. Shaftoe (cited 19 Ves. 156), a similar reservation 
 of a coal mine was sustained, though there was a non-user for two centuries ; and the 
 
 owner of the soil had erected machinery to work it. In Ten Broeck v. Livingston 
 *695 (1 John. Gh. Rep. *357), there was the reservation in the grant, of a right to cut 
 
 timber and grazing in the woods of the premises granted ; and the chancellor says 
 such rights are like a right of common (p. 363), and may be lost by negligence and disuse. 
 And see 3 Leon. 203, case 354 But the reservation of a mill right to flow another's 
 land was held not barred by a delay of thirty-two years to build the dam. Butz v. Ihre, 
 1 Eawle, 318. 
 
 23. Rights of pre-emption and election must be exercised within a reasonable time, 
 though no limitation be fixed by the instrument granting them. But this must evidently 
 depend on circumstances. Time and opportunity must be given to inquire and gain 
 competent knowledge, in order to act judiciously, and due information should not be 
 withheld by the party complaining of the delay. Sometimes, under a will, a definite rule 
 as to time in the abstract. Much must always depend on the nature of the property, the 
 changes it has undergone from the lapse of time, the conduct of the one who is to make 
 his election, as whether it be dilatory, fraudulent or prompt and fair ; whether the subject 
 of election be vested or reversionary ; whether the property may- not have been passed to 
 iona fide purchasers, by persons claiming adverse to the right of election ; .ind above all, 
 whether the party entitled to elect have not taken such steps as would be construed to 
 determine his election. So the conduct of the opposite party is to be considered ; for he 
 may go so far as to have waived the right to compel an election. The cases present too 
 much circumstantial variety, and call for too large an exercise of discretion, to warrant 
 the laying down of general rules. Huckstep v. Mathews, 1 Vern. 368 ; Orby v. Trigg, 9 
 Mod. 3 ; Pusey v. Desbouverie, 3 P. Wms. 315 ; Wake v. Wake, 3 Bro. C. C. 255 ; S. 0. 1 
 Ves. jun. 335 ; Whistler v. Webster, 2 Ves j un. 367, 371 ; Rumbold v. Rumbold, 3 Ves. jun. 
 65 ; Beaulieu v. Lord Cardigan, Arabl. 533 ; S. C, on appeal, 3 Bro. P. C, by Toml. 377 ; 
 the decision on appeal questioned in Butricke v. Broadhurst, 1 Ves. jun. 178 ; Edwards v. 
 Morgan, M'Clel. 541 ; Stratford v. Powell, 1 Ball & Beat. 1 ; Tucker v. Sanger. M'Clel. 424, 
 439 ; Earl of Northumberland v. Marquis of Granby, 1 Eden, 489 ; Duke of Northumber- 
 land V. Lord Egremont, Ambl. 637; Ardesoif v. Bennet, Dick, 463 ; Tibbits v. Tibbits, 19 
 Ves. 656 ; per Lord Hardwicke, in Tompkins v. Ladbroke, 2 Ves. sen. 593 ; in Pawlet v. 
 Delaval, 3 Ves. sen. 668 ; and jn Harvey v. Ashley, 3 Atk. 616 ; Butricke v. Broadhurst, 1 
 Ves. jun, 171 ; S. C, 3 Bro. C. C. 88 ; I'ittiward v. Prescott, 7 Ves. 541 ; Cull v. Showell, 
 Ambl. 737 ; Yate v. Moseley, 5 Ves. 480 ; Nelson v. Carrington, 4 Munf. 333. See Watts' 
 Ex'rs and Heirs v. Waddle, 6 Pet. 389, 393 to 396. 
 
 These cases in point of time range from a year and a half to fifty years, taking in all 
 manner of circumstances. 
 
 34. As to a waiver of a right of dower by delay, see per Richardson, C. J., in Barnard 
 V. Edwards, 4 N. H. Rep. 109 ; Boyle v. Rowand, 3 Dessauss. Eq. Rep. 555, 556, and note ; 
 Warfield v. Castlemain, 5 Monroe, 518 ; and Wells v. O'Beal, i Gill & John. 468. (See 
 Brewster v. Brewster, 33 Barb. 428 ; Stewart v. Smith, 14 Abbott's Pr. 75.) 
 
 35. An equitable right to a provision by settlement has, in some instances, been lost by 
 the laches of the party, under peculiar circumstances. Johnson v. Johnson, 1 Jac & 
 Walk. 473, 479 ; Parker v. Phillips, 1 Ves. sen. 530. 
 
 36. So an equitable title to an estate under a devise may be waived by delay and strong 
 circumstances, even short of twenty years. Delay merely, will not avail short of the 
 twenty years. Pearce v. Newlyn, 3 Mad. Rep. 186 ; Davie v. Beardsham, t Cas. Ch. 39 ; 
 S. C, 3 Ch. Rep. 4 ; Mutloe v. Smith, 3 Anstr. 709. So of an issue of devisamt vel rum. 
 Tucker v. Sanger, M'Clel. 34. 
 
 37. So delay is a strong circumstance in equity against granting a decree for specific 
 performance. The salutary power of chancery to decree a specific performance of agree- 
 ments to convey land, whether the bill be filed by the vendor or vendee, is often called 
 into exercise ; and is so familiar, that no cases or illustrations are necessary to show its 
 general character. These contracts are either indefinite in terms as to time, ». e. A. agrees 
 to sell real estate to B., and B. agrees to pay without mentioning the time when these 
 things are to be done ; or (which is more usual) a day, and sometimes a place is fixed. 
 And it is well known that, where the covenants are concurrent or conditional, these must 
 be adhered to with great strictness, at law, or all remedy is gone.. Time is there con- 
 sidered of the essence of the contract, and, if the day passes, the party failing is remediless. 
 The law demands of him a positive, an active performance, or doing his utmost, and a 
 refusal by the other party, at the day fixed, and with all the fullness and exactness of a 
 condition precedent. And this though the adverse party remain merely passive. Nor, if 
 
 the immediate opportunity be let slip, will any subsequent circumstances of silence, 
 
 *696 of *continuing possession, or even entire performance, restore one particle of vigor 
 
 to the dead body of the original contract. It is true that where, with the express 
 
SBC. II.] Waiver of Legal Bights, by Delay. 683 
 
 or implied assent of the otter party, the matter contemplated by the original contract is 
 performed, or indeed if it be partly performed with his assent, or perfdritied in a different 
 manner, this may be lopked to as creating a new and distinct contract, and giving rise to 
 a new remedy at law; hut the original contract is gone forever. The English cases dis- 
 tinguishing between dependent, concurrent and independent covenants, and between cove- 
 nants and conditions, are well collected and arranged in Piatt on Covenants, 70 to 170. 
 The American cases are numerous. Frazier v. Cushman, 12 Mass. Bep. 377 ; Baker v. 
 Legrand, 1 Litt. Sel Cas. 353; Hagedon v. Laine, 1 Marsh. 514; Gardner v. Corson, 15 
 Mass. Rep. 500 ; Green v. Reynolds, 3 John. Rep. 307 ; Cunningham v. Morrel, 10 John. 
 Rep. 303 ; Green v. Gardner, 10 John. Rep. 366 ; Asberry v. Mackljp, 3 Monroe, 9, 10 ; 
 Morford v. Mastin, 6 Monroe, 612, 615 ; City Bank v. Smith, 3 Gill. & John. 381 ; Gazely v. 
 Price, 16 John. Rep. 267 ; Hardin v. Kretsinger, 17 John. Rep. 293 ; Rob v. Montgomery, 
 30 John. Rep. 15 ; Miller v. Drake, 1 Cain. Rep. 45 ; West v. Emmons, 5 John. Rep. 179, 
 180, 181, per Van Ness, J. ; Porter v. Rose, 13 John. Rep. 309, 313 ; Judson v. Wass, 11 
 John. Bep. 535 ; Hudson v. Swift, 20 John. Rep. 34 ; Parker v. Parmele, 20 John. Bep. 
 130 ; M'Gaunten v. Wilber, 1 Cowen's Rep. 357 ; Chapman v. Lathrop, 6 Cowen's Bep. 
 110 ; Clarkson v. Carter, 3 Cowen's Bep. 84; Topping v. Boot, 5 Cowen's Bep. 404 ; John- 
 son V. Reed, 9 Mass. Rep. 78 ; Dana v. King, 3 Pick. 155 ; Hunt v. Livermore. 5 Pick. 395 ; 
 Coucli v, Ingersoll, 3 Pick. 292 ; Bank of Columbia v. Hagner, 1 Pet. S. C. Rep. 455 ; 
 Rounds v. Baxter, 4 Greenl. 454 ; Stanley v. Stanley, 3 N. H. Rep. 364, 366 ; Watkins v. 
 Hodges, 6 Har. & John. 38 ; Bailey v. Clay, 4 Rand. 346 ; Brockenbrough v. Ward's Adm'r, 
 4 Rand. 353 ; Robertson v. Robertson, 3 Rand. 68 ; Davis v. Crawford, 3 Rep. Const. Court. 
 401 ; Harrison v. Taylor, 3 Marsh. Rep. 168 ; Marshall v. Craig, 1 Bibb, 379 ; Stuteville v. 
 Miles, 3 Marsh. Bep. 435 ; Elliot v. Casneal, 3 Marsh. Bep. 308 ; Van Benthuysen v. Crap- 
 ser, 8 John. Bep. 257 ; Alexander's Ex'rs v. Ma,in, 6 Monroe, 361 ; Morford v, Mastin,^ 6 
 Monroe, 612', 615 ; Howland v. Leach, 10 Pick. 151 ; Passmore's Heirs v. Moore, 1 J. J. 
 Marsh. 591, 593 ; Porter v. Stewart, 3 Aik. 417 ; Dakin v. Williams, 11 Wendell, 67 ; John- 
 son V. Wygant, Id. 48. 
 
 The quotations, in which I have confined myself mostly toquestions between vendor and 
 vendee, will fully show that, where performance on one side, or an oflFer to perform 
 and a refusal, is a condition precedent to a right of demand against the other, the law 
 adheres ejcactly to the day and all other circumstances. 
 
 With regard to cases in which the mutual stipulations are not dependent one upon the 
 other, but a performance may be exacted without any previous steps by the party who 
 demands it, the po\5;er of a court of chancery to decree performance has always been con- 
 ceded. But, as to cases of condition precedent, in Benedict v. Lynch (1 John. Ch. Cas. 
 375), the late learned Chancellor of New Tork, after great examination, insists that, where 
 the party in default can show no good excuse, and the opposite party does not acquiesce in 
 the, default, a specific performance will not be decreed against him: He says this is an 
 acknowledged rule in courts of equity. He examines the cases and dicta on which the 
 opposite doctrine is placed, and denies that any one of them exhibits a mere unmixed 
 case of delay to perform the condition. On the other hand, he insists that some other cir- 
 cumstance must have entered into the matter, &c. The courts of equity have, of late, 
 discountenanced the least neglect, he refers to several cases. The case he was himself 
 considering was one of unreasonable delay, under an agreement containing an express 
 nullifying clause. 
 
 But whatever may be finally held, when a case of naked delay shall present itself, it is 
 certain that the smallest excuse for passing the day — one may almost say the merest 
 evasion — will be seized on by a court of equity to keep the contract alive. In the author- 
 ities cited by the chancellor and others, the vendor's title not being complete so that he 
 can convey at the day, or the purchaser receiving an abstract after the day, without then 
 objecting to the delay — or, indeed, omifting to clamor for an abstract before it is too late 
 for the vendor to furnish it at the day — or treating about the matter after the day — will 
 be deemed in the one case an excuse for the vendor, and in the other an acquiescence in 
 his delay ; that is to say, the vendor's own fault of having no title will excuse him in the 
 first place, and his stupidity or forgetfulness in the other. Omerod v. Hardman, 5 Ves. 
 jun. li'i ; Coffin v. Cooper, 15 Ves. 305 ; Pincke v. Curteis, 4 Bro. C. C. 339 ; Smith v. 
 Burnum, 2 Anstr. 527 ; Seton v. Slade, 7 Ves. 265 ; Guest v. Homfray, 5 Ves. 818 ; Stour- 
 ton V. Meers, cited and stated, 2 P. Wms. 631 ; Sheffield v. Mulgrave, 3 Ves. jun 
 *697 536; »Jones v. Price, 3 Ahstr. 934; Hertford v. Boore, 5 Ves. 719; Milward v. 
 Thanet, 5 Ves. 730, note 6 ; Hoggart v. Scott, 1 Buss. & Mylne, 293. So, if the 
 estate be described as in good repair, and is not 30, but requires several months after the 
 day to repair and make it agree with the description. Dyer v. Hargrave, 10 Ves. 505. 
 And a learned writer advises that, where a title cannot be made at the day, the vendor 
 should file a bill as the means of prolonging the time, or creating further delay until a 
 title may be completed (Sugd. Law of Vend. 383, Phila. ed. 1830), and he cites 6 Ves. jun. 
 655, and 10 Ves. jun. 315. In Seymour v. Delancey (6 John. Ch. Bep. 332, 334), Chancel- 
 lor Kent sought again to bring back the chancery doctrine to legal strictness, and expresses 
 a determination not to allow a specific performance where the vendor is not able to con- 
 vey at the day. 6 John. Ch. Bep. 334. He certainly labor,ed against a great weight of 
 
584 Of Presumptive Evidence, [ch. x. 
 
 authority ; and, wlien the case came to the Court of Errors, they repudiated his opinion. 
 Seymour v. Delancey, 3 Cowen's Rep. 445, 519, 535. The cases and dicta against him 
 ■were there cited, and see Tyree v. Williams, 8 Bibb, 365 ; De Camp v. Peay, 3 Serg. & 
 Rawle, 5 ; Nelson v. Carrington, 4 Munf. 332 ; and Gibbs v. Champion, 3 Hamm. 335. 
 These cases, with those cited in 3 Cowen {supra), seem to settle the question in England, 
 New York, Virginia, Pennsylvania, Kentucky, South Carolina and Ohio. And it is also 
 treated as well settled in the courts of the United States. Bank of Columbia v. Hagner, 
 1 Pet. S. C. Rep. 466, 467, per Thompson, J. ' 
 
 In Kentucky, a strong disposition has beeii manifested to withhold a decree, where the 
 delay is negligent, unless it be occasioned by the state of the title ; and even then if by 
 stipulation the time of performance be made material. Per Boyle, Ch. J., in Cotton v. 
 Ward, 3 Monroe, 313. Yet the same judge holds that negligence shall be no excuse 
 where the contract is partly executed, as by delivering possession. Id. But in a case 
 immediately following, neglect to convey at the day was overlooked, although the title 
 was good, and the contract executory ; the court holding it enough that the vendor mani- 
 festly continued willing to convey ; and had not trifled with his vendee. Mason v. 
 Chambers, 8 Monroe, 318, 323. And where the negligence is accounted for, and there is 
 a part execution, a decree may be had, if the conveyance be promptly tendered, even after 
 an action at law for the breakih is commenced, and a veldict obtained. Cook's Adm'r. v. 
 Hendrtck's, 4 Monroe, 500, 501. And see lioggart v. Scott, 1 Russ.&Mylne,393. Other- 
 wise, if there be supine neglect, and the application to a court of equity be delayed till 
 after damages at law assessed. Edwards v. Handley, Hardin, 603 ; Oldham v. Woods, 2 
 Monroe, 48 ; per Bibb, C. J., in Cook's Adm'r. v. Hendricks, 4 Monroe, 500. 
 
 In a subsequent case a labored argument of BiBb, C. J., and a, quotation of authorities 
 results in the conclusion that time alone, unconnected with other circumstances, is never 
 an objection, unless the delay be very great. Kercheval v. Swope, 6 Monroe, 363, 365 to 
 368. Part execution (a payment), is again much relied on in this case. Id. 368. This 
 doctrine of delay was again considered at large in Doss v. Cooper (2 J. J. Marsh. 409, 410 
 to 413) ; where it is insisted that the least delay must be excused ; and a very strict 
 account rendered, or a decree will not follow. See also Caldwell's Heirs v. White, 4 
 Monroe, 501, 567. In the still subsequent case of Craig v. Martin (8 J. J. Marsh. 50, 54), 
 the same doctrine is recognized ; but relief against a judgment for damages at law refused, 
 the conduct of the plaintifif having been fair. Great stress is ^gain laid in this case, on a 
 part execution, as overcoming delay. 
 
 (The discretion exercised by a court of equity in decreeing a specific performance of a 
 contract by a vendor, i. e., a religious corporation, to sell and convey real estate, is for the 
 most part governed by settled rules. Brown v. 'The I. P. ( !ongregation, 6 Bosw. 245. In 
 cases of fraud, mistake, surprise and hardship, the court does not interpose. Lynch v. 
 BischoflF, 15 Abbott's Pr. 357, note. A slight delay in the making of a payment, where 
 that is not an essential ingredient of the contract, will not prevent a decree ; 24 How Pr. 
 494 ; but time is essential when the contract makes it so ; Wells v. Smith, 7 Paige, 22 ; 
 and an unexplained failure of five years to bring the action will prevent a decree ; 
 McWilliams v. Long, 32 Barb, 194. Tlie court will not decree a specific performance of a 
 parol contract for the sale of lands, even where there has been part payment and 
 possession given (and afterwards surrendered) under the contract ; Haiglit v. Child, 34 
 Barb. 186 ; nor where the defendant is unable to give title; Stevenson v. Buxton, 15 
 Abbott's Pr. 352. An incumbrance, not objected to and afterwards removed, will not 
 prevent a decree ; Viele v. Troy & B. R. R. Co., 30 N. Y. 184. The party agreeing to do 
 so, may be compelled to remove an incumbrance ; Lallen v. Jones, 20 N. Y. 163. The 
 heirs of the vendor may be compelled to perform his contract for the sale of lands, where 
 a decree would be entered against him. Moore v. Burrows, 84 Barb. 173. Tlie interest 
 of the vendee, under such a contract, is real estate, and passes to his heirs ; 10 Barb. 434 ; 
 18 Id. 83'; while the interest of the vendor is treated as personal property, which goes to 
 the executor or administrator. Bogert v. Hestell, 4 Hill, 506.) " .— 
 
 In a recent case in Maryland, the Court of Appeals admit the doctrine that the non- 
 , performance of a condition precedent may be relieved against, whore the default. admits 
 of compensation ; as between vendor and vendee ; but they deny relief in the particular 
 case, as not being one of this description. It was a case of lottery prizes, their heincr due 
 depending on a demand within a certain time. City Bank of Baltimore v. Smith" 265 
 380, 281. 
 
 And in all cases, tl^ough of a defect of title, the conduct of the vendor should appear to 
 have been free from fra,ud as to the defect ; and, especially where a long time, «. g. twenty 
 years, shall have run without title, a decree will be refused, unless the vendor clear hi^iself 
 from all suspicion of fraud. Williains v. Mattocks, 3 Verm. Rep. 189. 
 
 On the whole, it cannot bo disguised, that most of our courts of chancery will not con- 
 sider the day material, where no injury arises from the delay. Though this may not have 
 been directly decided in England, yet every case which allows time beyond the day 
 to complete the title, &e., most certainly involves that proposition ; which has been thus 
 indirectly decided a thousand times ; and it has been as often declared in dicta. Cases 
 decide it, chancellors, judges at law, elementary writers, all recognize it. The 
 
BBC. n.] In Acttoris for Specific Performance. 585 
 
 *698 very complaint we hear at law, that ." the power is *attended with dreadful effects 
 In the delay thereby occasioned," (per Mansfield, C. J., in Wilde v. Fort, interrupt- 
 ing Shepherd and Best, serg'ts., drg. 4 Taunt. 341), conSnns it. 
 
 But what is directly material to the head we are considering, it is certain that inexou- 
 sahledelaj is a circumstance, among others, to weigh against a specific execution ; though 
 how soon mere naked laches shaU foreclose the party, has not been held. The nature of 
 the property, as whether real or personal, land or rents, reversionary or in possession ; 
 also its change of value in the course of the delay, or the purchaser's purpose being 
 defeated by delay, taking and continuing in possession, treating and negotiation kept on 
 foot after the day, silent acquiescence, proceeding at law, taking any steps ; forbearance 
 to declare an intention of breaking off, trifling, insincerity and fraud, matter of excuse for 
 the delay, &c., all run through the cases ; and show this to be another of those subjects 
 which rest in a very large discretion, and from which no general rules can be gathered as 
 to delay in the abstract. Watts v. Waddle, 6 Pet. 389 ; Miller v. Bear, 3 Paige, 466 ; per 
 Lord Alvanley, in Millard v. Thanet, 5 Ves. 720, note i ; per Lord Manners, in Moore v. 
 Blake, 1 Ball & Beat. 68, 69 ; Guest v. Homfray, 5 Ves. 818 ; Harrington v. Wheeler, 4 
 Ves. 686 ; Spurrier v. Hancock, 4 Ves. 667 ; Alley v, Desehamps, 13 Ves. 225 ; Heaphy v. 
 Hill, 2 Sim. & Stu. 39 ; Mackreth v. Marlar, 1 Cox's C. C. 259 ; Lloyd v. CoUett, 4 Bro. C. 
 C. 469 ; S. C, 4 Ves. 689. note 6; Fordyce v. Ford, 4 Bro. C. C. 497, 498 ; Omerod v. Hard- 
 man, 5 Ves. 722 ; Barbour v. Whitlock, 4 Monroe, 195 to 199 ; Milward v. Earl of Thanet, 
 5 Ves. 720, note 6 ; Hayes v. Caryll, 1 Bro. P. C. by Toml. 136 ; Coward v. Odingsale, 3 
 Eq. Cas. Abr. 688, pi. 5 ; Bdl V. Howard, 9 Mod. 302 ; Newman v. Rogers, 4 Bro. C. C. 
 391 ; Wingfield v. Whaley, 1 Bro. P. C. by Toml. 200 ; Moore v. Blake, 1 Ball & Beat. 62 ; 
 Popham v. %re, Lofft, 786 ; per Lord Kedesdale, in Crofton v. Ormsly, 2 Sch. & Lef, 603, 
 604, and the cases there mentioned by way of illustration ; Marquis of Hertford v. Boore, 
 
 5 Ves. 719 ; Waters v. Travis, 9 John Rep. 450 ; Butler v. O'Hear, 1 Dessauss. Eq. Rep. 
 398, per the chancellor ; Osborne v. Bremar, 1 Dessauss. Eq. Rep. 486 ; Brashier v. Gratz, 
 
 6 Wheat, 528 ; Hepburn v. Auld, 5 Cranch, 262, 276 ; Tyree v. Williams, 3 Bibb, 365 ; 
 Bank of Columbia v. Hagner, 1 Pet. S. C. Rep. 465, 466, per Thompson, J., citing Sugd. 
 Law of Vend. 275, with approbation ; Gibbs v. Cook, 4 Bibb, 535 ; Benedict v. Lynch, 1 
 John. Ch. Rep. 375 ; Seymour v. Delancey, 6 John. Ch. Rep. 222, 234 ; S. C, on appeal, 3 
 Cowen's Rep, 445, 519, 585 ; De Camp v. Feay, 5 Serg. & Rawle, 333 ; Pratt v. Carroll, 8 
 Cranch, 471 ; Hatch v. Cobb, 4 John. Ch. Rep. 559 ; Matter of Shoemaker, 1 Rawle, 89 ; 
 Walker v. Walker, 16 Serg. & Rawle, 379 ; M'Neil v. M'Qee, 5 Mason, 244; Pope v. 
 Lemaster, 5 Litt. Rep. 78 ; Bates v. Todd's Heirs, 4 LitJ. Rep. 178 ; Mason v. Chambers, 
 3 Monroe, 232 ; Doss v. Cooper, 2 J. J. Marsh. 412, 413 ; Craig v. Martin, 8 J. J. Marsh. 
 53, 54, 55 ; Hoggart v. Scott, 1 Russ. & Mylne, 293. 
 
 This doctrine of delay, in a-a independent promise to convey, was, ia one case, carried 
 very far at law. Though the plaintiff had a right, without any express limitation of 
 time, to demand a deed, on tendering his bond and mortgage, yet a delay of four years 
 was held such evidence of waiver as to bar his action of assumpsit, the Supreme Court 
 saying they would follow the rule in chancery. Ballard v. Walker, 3 John. Cas. 60. 
 
 28. Courts of equity will, in like manner, relieve a lessee, or his assignee, under a lease 
 containing a covenant for renewal on certain conditions, although he may not literally 
 have complied within the time specified, but a good reason for the omission must be given. 
 Boss V. Worsop, 1 Bro. P. C. by Toml. 281 ; Rawstorne v. Bentley, 4 Bro. C. C. 415 ; Bay- 
 ley V. Corporation of Leominster, 3 Bro. P. C. 529 ; Eaton v. Lyon, 3 Vesey, 690 ; Maxwell 
 V. Ward, M'Clel. 458,464; Baynham v. Guy's Hospital, 8 Vesey, 295. And the party 
 must be very prompt to apply for a renewal. The least unexplained delay will work a for- 
 feiture of the right. Eaton v. Lyon, 3 Vesey, 690, 693, 695, 696 ; Maxwell y. Ward, M'Clel. 
 458, 467, 468. Even ignorance of his rights, to which the opposite party is in no way auxil- 
 iary, is not an excuse. Maxwell v. Ward, M'Clel. 458, 464. See the Irish cases on this 
 head. Davis v. Oliver, 1 Ridgw. P. C. 1 ; Sentleger v. Chartres, Id. 123 ; O'Neil v. Mortis, 
 Id. 170 ; Kane v. Hamilton, Id. 180 ; Batemau v. Murray, Id. 187 ; Boyle v. Lysaght, Id. 384 ; 
 S. C, Vern. & Scriven's Rep. 135 ; Magrath v. Muskerry, 1 Ridgw. P. C. 469 ; S. C, Vernon 
 V. Scriven's Rep. 166 ; Freeman v Boyle, 2 Ridgw. P C. 69 ; Duchess Dowager of Chandos 
 v. Brownlow, Id. 345 ; Palmer v. Hamilton, Id. 535 ; Earl of Inchiquin v. Burnell, 3 Ridgw 
 P. C. 376. See.Phyfe v. Wardsell, 5 Paige, 268. 
 
 29. It has been strongly intimated, though not directly debided, that delay by a landlord 
 
 for tvvepty years, to enter for a forfeiture of his tenant's right, by the non-fulfillment 
 *699 of a condition *shall, under the Statute of Limitations, operate as a bar to his rio-ht of 
 
 entry. Per Lord Kenyon, C. J., and Ashurst, J., in Doe dem. Tarrant v. HeUier, 3 T. 
 B. 173, 173. That long delay would be a powerful argument for a waiver of the right, in 
 connection with other circumstances ; and that it would in time, per se, he full evidence of 
 a waiver, there can be no doubt (Doe dem. Tarrant v. Hellier, 8 T. R. 162 ; Malone v. Malone 
 1 Hall & Beat. 33, note a; and a dis'.inct act, or even a declaration directly incompatible 
 with the idea of insisting on the forfeiture, done or made after, and with knowledo-e that 
 it is incurred, will be adopted as a waiver. Milfax v. Baker, I Lev. 26 ; Malone v. Malone 
 1 Ball & Beat. 33, note a. But, for this subject at large, see Vol. III. ' 
 
 30. So, on the other hand, a re-entry for breach of condition, regular and formal at thn 
 Vol. I U 
 
686 Of Presumptive. Moidenee. [ch. x. 
 
 commoa law, may be presumed from the lapse of time djiijng whioh the lessorhas, pos- 
 Bessed. This has been done after fourteen years. Jackson ex dem^ Goose v. Demarest, 3 
 Cain. Rep. 382 ; Jackson ex dem. Smith v. Stewartj 6 John. Rep. 34, But it was denied 
 that nine years! possession would warrant the presum,ption. Jackson ex dem. Donally v. 
 Walsh, 8 John. Rep. 236. And in a subsequent case, it is declared that.any tiipe short of 
 fourteen years is not enough. Jackson ex deiu. Myers v. Ellworth, 20 John. Rep. 180. 
 After one lease given for eighty-one years to one, and then a second and third lease by the 
 reversioner to another, the, original lessee being out of possesgion, leaving the latter les- 
 sees or their assignees in possession, who paid rent for a long time, a surrender or 
 assignnient of the first was presumed, Westropp's Lessee v. Moore, 2 Fox & Smith, 363. 
 31., The. lapse of time or delay by legatees and distributees, to call, on executors or 
 administrators, will not bar a claim against them to distribute the general residue of an 
 estate remaining in their hands ; for they are mere trustees (Stackpole v,, Stackpole, 4 
 Dow, 309) ; though extraordinary acts of acquiescence, concurring with a delay of forty 
 years, was once holden to work that effect. Huet v. Fletcher, 1 Atk, 467. Yet, if they 
 allow the estate to be distributed, though erroneously, and acquiesce with full knowledge 
 and the means of enforcing their rights for a long time, the executor or administrator is 
 discharged. Boiling v. Boiling, 5 Munf. 334 ; Hudspn v. Hudson's Ex'r, 3 Rand. 117 ; 
 
 . Eayner v. Peaxsall, 3 John. c£. Caa. 578 ;' Pickering v. Stamford, 3 Vesey, jun., 273, 581, 
 583 ; S, C.-, 4.Bro. C. C. 214, 319, 220. And see 17 Ves. 165, and Newton v. Ayscough, 19 
 Ves. 534. And this especially where no great private or public inconvenience is to arise. 
 But in cases of such acquiescence, the decree will be confined to the corpus merely, and 
 nbt extended to the annual produce or interest, or other accruing benefit. See 2 Ves. 
 585 ; and McCartee V. Canipbell, 1 Barb. Ch. 455. 
 
 82. The same principle seems to apply to creditors who have stood Sy and seen the 
 debtor's estate distributed ; and such laches will preclude their bill for an account not 
 only against the personal representatives, but as against the legatees or distributees ; and 
 especially after great lapse of time. It will be presumed that their debts are paid or 
 released. But such and the like presumptions may be repelled by circumstances. Hercy 
 
 ■ V. Dinwoody, 4 Bro. C. C. 257 ; S. C, 2 Ves. jun. 86 ; Hardwick v. Mynd, 1 Anst. 109. 
 And see ,Newton v. Ayscough, 19 Ves. 534. The objection becomes conclusive against the 
 creditors where, after a legacy has been purchased by a third person, they delay proceed- 
 ing against the purchaser for an unreasonable time. Cholmondeley v. Qrford, Sugd. Iiaw 
 of Vend. 534, 525 (Am. ed. of 1830) ; Elliott v. Merriman, 3 Atk. 41. 
 
 33. The delay of infants or minors, after coming of age, to demand their legacies or 
 distributive shares from execurors or administrators who have, during the minority of 
 the claimants, made payments to or delivered their legacies or shares to wrong persons, 
 though by mistake, must be very great to bar their claiin for a payment or delivery to 
 themselves. A pfiyment to the infant or his father, or a foreign guardian, during minor- 
 ity, will generally be holden null, unless the sum be very small, or the will direct 
 payment to the infant. Lee v. Brown, 4 Vesey, 362 ; Genet's Children v. Tallmadge, 1 
 John. Ch. Rep. 8 ; HoUoway v. Collins, 1 Cas. Ch. 245 ; Strickland v. Hudson, 3 Ch. Rep. 
 88; Dagley v. Tolferry, 1 P. Wms. 885 ; S. C, 1 Eq. Cas. Abr. 300, pi. 3 ; S. C. Gilb. Eq. 
 Rep. 103 ; Philips v. Paget, 2 Atk, 80 ; Cooper v. Thornton, 3 Bro. C. C. 96, 186 ; Morrell 
 V. Bickey, 3 John. Ch. Rep. 153 ; Williams v. Storrs, 6 Id. 353 ; Hill v. Chapman, 2 Bro. 
 C. C. 613 ; Bilson v. Saunders, Bunb. 340. The two cases of HoUoway v. Collins, and 
 Bilson V. Saunders, are overruled by the others. A guardian should be appointed for 
 that purpose, if the security given by the general guardian be insufBcient. Genet's 
 
 Children v. Tallmadge, 1 John. Ch. Rep. 3. Though now in New York, a legacy 
 *700 of less than fifty dollars *may be paid to the lather. 2 R. S. 91. In general, where 
 
 a wrong payment has been made, and the delay after the infant coming of age, 
 has not been accompanied with plain acts of recognition, or very long acquiescence, the 
 executor or administrator must pay to the infant a second time. Fifteen years of mere 
 delay was holden not enough to create a presumptive bar. Dagley v. Tolferry, 1 P. Wms. 
 385 ; Philips v. Paget, 3 Atk. 80 ; Lee v. Brown, 4 Ves. 362. 
 
 So far as these cases relate to the claims of legatees and distributees against executors 
 and administrators, for an account and payment, their application we have seen {supra), 
 in this note, has been denied, or at least much qualified in those states where a statute 
 gives a concurrent remedy to the courts of law ; and it would probably be so in many 
 cases with regard to creditors. 
 
 34. Acquiescence by a cestui que trust, in a breach of trust committed by his trustee, 
 will, unless excused and accouhted for, preclude him from complaint, the same as an act- 
 ive concurrence in the breach. Per Lord Eldon, in Walker v. Syn>onds, 8 Swanst. 64. 
 Thus, where there were B. and several other cestuis que trust o{ land, and M. & F., the 
 trustees, in violation of their duty, sold the land and joined in n receipt for the purchase 
 money, but F. actually received the money, and with the acquiescence of B., lield it for 
 ten years, and till he died insolvent ; held, that B. had, by such acquiescepce, discharged 
 M. from liis original liability for the money. Brice v. Stokes, 11 Ves. 319. 
 
 But the mei-e silence of a body of creditors under a misapplication of a trust fund, pro- 
 vided for their benefit, wouldjaot be so readily construed against them (Hardwick v. Mynd. 
 
SEC. I1.J Eff'ect of Delay on Legal Bights. 587 
 
 1 Anst. 109; Kidney v. Coussmaker, 13 Vea. 136, 138); unless, indeed, they seek to go 
 beyond the trustees, and make a purchaser liable for the misapplication. Elliott v. Mer- 
 riman, 3 Atk. 41. 
 
 35. Delay by the cestui qvs trust in calling on one who purchased from a trustee, under 
 such circumstances as renders the purchaser bound to see the purchase money applied for 
 the benefit of the cestui que trust, will also discharge the purchaser. The cases in which 
 this obligation may be said to arise, will be seen in Mr- Rand's ed. of Pow. on Mortgage, 
 Vol. 1, ch. 9, p. 14, et seq. These cases are much abridged in number, if not abolished, in 
 New York, where there is no fraud. 1 K. S. 730, § 66. 
 
 The shortest period of delay, by the ce«*m' J^e trust, in this last class of cases, which 
 has been particularly allowed as a bar, is not short of twenty-two years. Cusse v. As(h, 
 Rep. temp. Finch, 316. But Mr. Mathews thinks there is no doubt that an unexplained 
 delay of twenty years would be a full answer to the claim. Math. Pr. Ey. 433. 
 
 86. Several miscellaneous cases as to account, go on the same principle. Even a suit 
 and decree for an account, cannot be continued or carried into effect after a great length 
 of time Pearson v. Belchier,' 4 Ves. 637. So of a decree and order of reference to fix an 
 occupation rent. ■ Lord Sliipbrooke v. Lord Hinchinbrooke, 13 Ves. 387, 396. So the Court 
 of Common Pleas; after great delay, refused to exercise, or even to entertain a motion to 
 exercise a summary power given to them by statute, of appointing a new assignee of an 
 insolvent debtor, with a view to compelling an account of a previous assignee. Ex parte 
 Heathfield, 8 Taunt. 403. Chancery will not interfere with stale and complicated accounts 
 (Stuart V. Mellish, 3 Atk. 610) ; and a lumping and irregular sale by a sheriff, will not be 
 set aside after a great lapse of time. Mohawk Bank v. Atwater, 3 Pa,ige, 54. 
 
 So a settlement of accounts with trustees or between other persons, whether such set- 
 tlement be actual or constructive, will not, in general, be totally unraveled after great 
 delay. But the complainant may surcharge and falsify ; and if there be fraud, the whole 
 of any account, though settled, may be thrown open at an indefinite period. Skinner v. 
 Skinner, 1 J. J. Marsh, 594 ; Irvine v. Robertson, 8 Rand, 549 ; Gregory's Ex's v. Forres- 
 ter, 1 M'Cord's Ch. Rep. 331, 333; Randolph's Ex'r v. Randolph's Ex'rs, 1 Hen. & Munf. 
 180 ; Murray v. Tolaud, 3 John Ch. Rep. 569, 574, 575 : per Lord Hardwicke, in Roberts v. 
 Cuffin. 3 Atk. 113 ; Brownell v. Brownell, 3 Bro. C. C. 63 ; Western v. Carlwright, Sel. Cas. 
 Ch. 34 ; Vernon v. Vawdry, 3 Atk. 119 ; S. C, Barnard, Ch. Rep. 380 ; SeweU v. Bridge, 1 
 Ves. sen. 397 ; iPratt v. Weyman, 1 M'Cord's Ch. Repi 156. And see Watson v. Toone, 6 
 Mad. Ch. Rep. 153, 
 
 Accounts between merchants, though excepted in the Statute of Limitations, would 
 never be investigated by courts of chancery, where the dealings in question had been 
 long discontinued ; and it is now settled in those courts that after six years' total discon- 
 tinuance, they come within the statute. Sherman v. Sherman, 3 Vern. 376 ; Bridges 
 •701 v. Mitchell, Gilb. Eq. Rep. 235 ; Martin v. *Heathcoate, 3 Eden, 169 ; Barber v. 
 Barber, 18 Ves. 386. But see Landsdale v. Brashear, 3 Monroe, 330 ; and Patterson 
 V. Brown, 6 Id. 10, 11, contra. 
 
 The statute may be pleaded to a bill to prevent acting up outstanding terms. Jenny 
 V. Best, 1 Sim. 373. i 
 
 But six years was denied to be a bar of an attorney's lieu for his bill of costs. Higgins 
 V. Scott, 2 Barnw. & Adolph. 113. 
 
 The statute has no application, in the state of Maine, to claims in the Court of Probate 
 Heald v. Heald, 5 Qreenl. 387. 
 
 37. Other cases show the force of delay and acquiescence. These will sanction the 
 inclosure of common appurtenant (Tufton v. Wentworth, 5 Vin. Abr. 8, pi. 33), subvert 
 the frights of femes covert to their separate estate (Burke v. Crosbie, 1 Ball & Beat. 489), 
 work a forfeiture of their estate in land conveyed by their husbands (Swanton v. Raven, 3 
 Atk. 105), explain away oWections to conveyances originally obtained upon improper 
 influence (Brown V. Carter, 5 Ves. 863. See also Tweddell v. Tweddell, 1 Turn. 1), and 
 render annuities valid even where the consideration is disputed, or the ceremonies req uired 
 by the annuity acts have been inaccurately performed. Symmous v. Monimer, 9 T. R. 
 139 ; Ex parte Maxwell, 3 East, 85. See also Poole v. Cabanes, 8 T. R. 338 ; also a case 
 referred to by Lord Erskine, 13 Ves. 378, and per Park, J., 1 Bing. 340. It seems agreed, 
 however, that a total non-compliance with any of the direct and positive provisions of the 
 statute, such as admit neither of explanation nor excuse, or if any inequitable advantage 
 was taken of the grantor, the lapse of time will not avail. Van Bramm v. Isaacs, 1 Bos. 
 & Pull. 451 ; Ex parte Sir R. Mackreth, 3 East, 563 ; Drake v. Rogers, 3 Brod. & Bing. 19 ■ 
 Williamson v. Goold, 1 Bing. 334 ; Cabton v. Porter, 3 Bing. 370. ' 
 
 38. Ignorance of the right presumed to have been released or waived by delay, is, some- 
 times, though cautiously, received as an answer to the presumption in courts of equity. 
 Per Lord Commissioner Gilbert, Sel. Ch. Cas. 11 ; Cowper v. Cowper, 3 P. Wms. 730 ; per 
 Sir W. Grant, in Cholmohdeley v. Clinton, 3 Meriv. 363 ; per Sir T. Plumer, in S.'c, 3 
 Jac. & Walk. 143 ; Storrs V. Barker, 6 John. Ch. Rep. 166. But it will be seen by the two 
 last cases wiat a mistake of the right is no answer, even in equity, to the Statute of 
 limitations. 
 
 39. It will be perceived on examining the cases upon several of the above heads, and 
 
588 Of Preemptive M)idence. [ch. x. 
 
 especially the latter heads, that no certain time is given within which the presumptive 
 har, release, waiver or abandonment shall arise ; and that the only criteria, or fatal laches, 
 are the nature of the demand, and the inconvenience, public or private, of allowing it to 
 be enforced against the opposite party at a remote period. Thus, in matters of election 
 and specific execution, great promptness and diligence are demanded. Creditors or next 
 of kin, permitting an erroneous distribution, stand upon much the same ground. But 
 where no striking argument of inconvenience arises, the courts are warranted in allowing 
 a time corresponding to the Statute of Limitations ; six years as to personal, and twenty 
 years as to real estate. 
 
 It has been suggested by Chancellor Kent, tha,t twenty years unexcused delay would, 
 at common law, bar the prosecution for a divorce on the ground of adultery (Williamson 
 V. Williamson, 1 John. Ch. Kep. 488, 492, 493) ; and after twenty years, semb. an execution 
 cannot be set aside by the party, so as to affect the bona fide purchaser under it. Jackson 
 ex dem. Livingston v. Delancy, 13 John. Rep. 537. The limitation of the right to revoke 
 the probate of a wUl in common farm, seems to be thirty years. Brown v. Gibson, 1 Nott 
 &M'Cord, 326. 
 
 40. As to the maxim, nuUv/m tempus occurrit reipiiblicoe, see the following cases : Liild- 
 sey V. Miller, 6 Pet. 666 ; Birch v. Alexander, 1 Wash. Virg. Rep. 34 ; Den v. Herring, 1 
 Murph. 414 ; Bagley v. Wallace, 16 Serg. & Rawle, 285 ; United States v. Hoar, 2 Mason, 
 311 ; Johnston v. Irwin, 8 Serg. & Rawle, 291 ; The Pe6ple v. The Supervisors of Colum- 
 bia, 10 Wend. 363 ; Kemp v. The Commonwealth, 1 Hen. & Munf 85 ; Allston's Lessee v. 
 Saiinders, 1 Bay, 26 ; Stoughton v. Baker, 4 Mass. Rep. 528, per Parsons, C. J. ; Voog'ht 
 v. Winch, 2 Barn. & Aid. 662 ; Carter v. Murcott, 4 Burr. 2163 ; per Lord Bllenborough, 7 
 East, 199. 
 
 41. The opinion of Lord Camden, in Smith v. Clay (Ambl. 645 ; S. C, 3 Bro. C. C. 630, 
 note), may be read with great advantage, as embodying the principles on which courtsof 
 equity deal with stale demands, or act in analogy to the Statute of Limitations. 
 
 42. As to the manner in which the statute, or lapse of time, may be introduced as a bar 
 in a court of equity, in general the defendant cannot demur, though the delay appear on 
 
 the face of the bill. Mitf. Plead. (3d ed.) pp. 172, 173, 174 ; Frazer v. Moor, Mos. 
 *702 54 ; Her'cy v. Dinwoody, *4 Bro. C. C. 268 ; 2 Ves. jun. 87, 91 ; S. C. and S. P., Earl 
 of Deloraine v. Browne, 3 Bro. C. C 633, 646 ; Gregory v. Molesworth. 2 Ves. sen. 
 109 ; M'Dowl v. Charles, 6 John. Ch. Rep. 132 ; Payne v. Hathaway, 3 Verm. Rep. 212. 
 On the other hand, several cases seem to have recognized a demurrer as applicable. Pal- 
 mer V. Whettenhal, 1 Cas. Ch. 184; Hovenden v. Ld. Annesley, 2 Sch. & Lef. 637, 638 ; 
 Beckford v. Close, cited in 3 Bro. C. C. 644 ; pei- M. R. in Hardy v. Reeves, 4 Ves. jun. ;476, 
 479 ; 2 Sch. & Lef. 638. And see Ex'rs of Livingston v. Livingston, 4 John. Ch. Rep. 294, 
 295, 297. 
 
 In general, the delay must of course, be pleaded ; for the complainant will not, if he 
 can avoid it, show a full and unqualified case of delay on the face of his bill. Saunders 
 V. Hord, 1 Ch. Rep. 184 ; Hollingshead's Case, 1 P. VVms. 743 ; Goodrich v. Pendleton, 3 
 John. Ch. Rep. 384 ; Bell v. Beeman, 3 Murph. Rep. 273, 277. That is to say, where the 
 statute is a positive bar in equity, it should be interposed by way of a plea or answer ; 
 e. g. where the rertiedy is concurrent at law ; or by way of answer where the statute 
 comes in not propria jure, but by analogy ; e. g. where equity has exclusive jurisdiction. 
 Bell V. Beeman, 3 Murph. Rep." 373; Deloraine v. Browne, 3 Bro. C. C. 646, per Lord 
 Thurlow. And it would seem, from the latter case, that it may sometimes be insisted on 
 at the hearing as matter of evidence, without being mentioned in the answer. But where 
 the time comes in by way of presumption, as it often does, payment must be sworn to by 
 the answer. Livingston v. Livingston, 4 John. Ch. Rep. 287. See the peculiar mode of 
 pleading the statute to a specialty in Maryland. Carroll v. Waring, 3 Gill & John. 491. 
 
 Though formerly held that a plea of the statute by one defendant enures to the benefit 
 of all the others (Clason v. Morris, 10 John. Rep. 524), yet the better opinion would seem 
 to be the other way. McCormick v. Gibson, 3 Gill & John. 13 ; where the strength of the 
 former case is considered, and the case itself denied to be law. 
 
 Where it is interposed by answer, the defendant is bound to negative, particularly, all 
 circumstances alleged in the bill calculated to avoid the statute; and if it comes in by 
 plea, this must be supported by such an answer. Kane v. Bloodgood, 7 John. Ch. Rep. 
 90, 139 to 136 ; S. C, on appeal, 8 Cowen's Rep. 360 ; Goodrich v. Pendleton, 3 John. Ch. 
 Rep. 384, 891 ; Mitf. PI. (3d ed.) 318, 330, 333, 336, 337 ; Coop. Eq. PI. 237, 238 ; Gilb. For. 
 Rom. 58 ; Van Heythuysen's Eq. Draftsman, 443 ; Price v. Price, 1 Veru. 185 ; Bailie v. 
 Sibbald, 15 Ves. 185 ; South Sea Company v. WymohdseU, 3 P. Wms. 143 ; Walter v. Glan- 
 ville, 8 Bro. P. C. 206 (Toml. ed.); Anon., 8 Atk. 70; Galway v. Earl of Barrymore, 1 
 Dick. 163 ; Hildyard v. Cressy, 3 Atk. 303 ;|Jono3 v. Pengreo, 6 Ves. 580 ; Bailey v. Adams, 
 6 Ves. 686 ; Pope v. Bush, 1 Anstr. 59 ; Edmunson v. Hartley, 1 Anstr. 97. 
 
 It is well understood that at law the statute must always be pleaded, with the few 
 exceptions where it may come in under the general issue. Delay, though appearing on 
 the face of the plaintiff's pleadings, is never the subject of a demurrer ; and the better 
 authority now is, that even a replication of fraud or concealment, by which the plaintiff 
 was delayed in his remedy, will not be received to enlarge the time. Troup v. Smith, 20 
 
SEC. 11.] Delay ^ when Available as a Defense. 589 
 
 produced from the hands of the acceptor subsequently to its becoming due, 
 the presumption is, that the acceptor has paid it. (1) 
 
 Of Reputed Ownership. — Where a person has been the absolute owner 
 of property, and he continues, in possession of it till the time of his bank- 
 John. Kep. 33, 47, 48; Hamilton v. Shepperd, 2 Murph. Rep. 115; Callis v. Waddy, 3 
 Munf. 511 ; Maddock v. Bond, 1 Ridgw., Lapp & Sch. Ir. T. R. 339. But see First MiiB8. 
 T. P. Corporation v. Field, 3 Mass. Rep. 301 ; Hqmer y. Fish, 1 Pick. 435 ; Jones v. Cono- 
 way, 4 Yeates, 109 ; and Pyle v. Beckwith, 1 J. J. Marsh. 445, contra. And the same rule 
 applies where the statute comes into a Court of Equity propria jure. Hamilton v. Shep- 
 perd, 3 Murph. Rep. 115, 118 ; Bell v. Beeman, 3 Murph. Rep. 373, 278. ' 
 
 43. The state of New York has recently adopted a limitation for all suits in equity as 
 well as at law. Where its jurisdiction is concurrent with the common-law courts, the 
 legal limitation is extended to all equity suits brought subsequent to the passing of the 
 act, except in cases of fraud, where the bill may be filed within six years after its dis- 
 covery. In all other cases the limitation is to ten years after the cause of the bill accrued ; 
 subject to be enlarged in each case by the existence of the same disabilities and accidents 
 as exist at law, viz ; infancy, coverture, absence beyond sea, death, &c. 3 R. S. 301, 303, 
 art. 6. In their report of this statute, the revisers profess in the main to follow the law 
 of courts of equity as it has already been adopted by those courts. They refer to 30. John. 
 Rep. 585 ; 2 Ball & Beat. 129 ; 2 Sch. & Lef. 636 ; 1 Bro. P. C. 455, and the cases collected 
 in 20 John. Rep. 38. The ten years limitation, of course, embraces several cases not 
 before limited at all, and others to which a different period had been fixed in analogy to 
 t'.ie legal limitation. 
 
 In order to determine the extent of the limitation, as whether it shall be six or twenty 
 years on the one hand, or ten years on the other, this statute opens a wide field of inquiry 
 on the question, in what cases the jurisdiction of chancery and law shall be deemed con- 
 current for the purposes of the statute limitation on that head, and when not, with a 
 yiew to the limitation of such suits belonging exclusively to the equity side. And again, 
 the cases must be resorted to, in order to determine what shall constitute such a fraud as 
 shall enlarge the time in both cases. These questions being answered another seems to 
 be settled : The language of these statutes, mutatis mutandis, is the same as those which 
 limit actions in a court of law. It follows, that the time of the complainant can be 
 enlarged by no considerations, except those specifically enumerated ; fraud undiscovered, 
 infancy, coverture, insanity, duress, absence, &c. Troup v. Smith, 20 John. Rep. 33, 47 ; 
 Callis V. Waddy. 3 Munf. 511 ; Leonard v. Pitney, 5 Wend. BO ; Hamilton v. Shepperd, 3 
 Murph. Rep. 115, 118 ; Bell v. Beeman, 3 Murp. Rep. 373, 378. Neither promises, acknowl- 
 edgments, nor the most solemn acts, can keep the subject matter of the bill aUve. It 
 is a very strong statute, leaving it quite questionable whether aliguis potest renuncia/re 
 juri pro se introduoto, unless this be done by an act of record in the suit itself. See Mad- 
 dock V. Bond, 1 Ridgw., L. & S. Ir. T. R. 332. At any rate, all the thousand other acts, 
 relations and contingencies by which equities have heretofore been kept alive, as may be 
 seen by the cases we have above attempted to review, are rescinded at a blow. This is, 
 indeed, cutting the gordian knot. What those equities may be worth which are thus 
 placed " with the years beyond the flood," is no longer the inquiry. Lord Camden said, 
 that " in all these questions which turn on the limitation of time, the right is never taken 
 into consideration : for the statute was mbde to bar right, and not give remedy in dubious 
 cases. The rule, ut Sit finis litium, operates against cases of right rather than in cases of 
 wrong." Ambl. 647. For the first time, with us, a quieting statute has passed, extending 
 over all the regions of equitable jurisprudence. Heaven grant that the repose which it 
 confers may not prove the calm of despotism. See Vol. III. p. 451, 453. 
 
 (1) Gibbon v. Featherstonhaugh, 1 Stark. R 325 ; Pfiel v. Vanbatenberg, 3 Camp. 439. 
 See Bembridge v. Osborn, 1 Stark. R. 374. As to the presumption of payment arising 
 from the production of a check, see Boswell v. Smith, 6 C. & P. 60 ; Pearce v. Davis, 1 
 Mo. & R., 365 ; Egg v. Barnett, 3 Esp. 196 ; Lloyd v. Sandiland, Gow, 16, explained by 
 Alderson, B., in Mountford v. Harper, 16 M. & W. 835, 827. That the paymenlof money 
 does not, in general, raise the presumption of a loan, see Welsh v. Seabone, 1 Stark. E. 
 474 ; Carey v. Gerrish, 4 Esp. 9 ; Holden v. Hartsink, 4 Esp. 46. As to a presumption of 
 gift to a relative, see Hick v. Keats, 4 B. & C. 71. See further on tha presumption of pay- 
 ment. Cooper V. Turner, 3 Stark. R. 207 ; 4 Taunt. 393. On the presumption of the 
 satisfaction of judgments, warrants to confess j udgment, decrees, recognizances, annuities, 
 portions, legacies, liens for purchase money, quit rents, see Matthews on Presumptions, 
 oh. 19 & 30 ; Willaume v. Gorges, 1 Camp. 317 ; Hulke v. Pickering, 3 B. & C. 555. On 
 the subject of the payment of bonds, see the statute 3 & 4 Wm. IV. c. 43. Before that 
 statute, payment might have been presumed vidthin twenty years, if circumstances con- 
 curred to fortify the presumption arising from lapse of time, as a settlement of accounts. 
 Colsel V. Budd, 1 Camp. 37 ; Oswold v. Leigh, 1 T. R. 370. The production by the assured 
 of a policy with an adjustment, and the name of the defendant struck off, does not prove 
 payment. Adams v. Sanders, M & M. 373. 
 
590 Of JVesumptive Mjidenoe. [ch. x. 
 
 ruptey, he will be prima facie presumed to have had the reputed ownership ' 
 
 of it, unless he has made the' change of property notorious; but if 
 
 *704 he has never been the *absolute owner, it will be necessary to estab- 
 
 , lish the fact gf a reputed ownership, by other means than proof of 
 
 possession. (1) 
 
 Presumptions by the late of treason. It has sometimes been laid down, 
 that a conspiracy to levy war against the king, when proved, amounts, in 
 presumption of' law, to a compassing of the king's death ; but, on the other 
 hand, there are'ltill higher and better authorities, both ancient and modem, 
 for considering, that a jury are not bound to make such a presumption, 
 unless they are satisfied that the conspiracy was of such a nature as, in its 
 consequences, to occasion probable danger to the king's life. (2) 
 
 It would be impossible to enumerate-wifhin convenient limits, the various 
 presumptions which have received judicial sanction- (3) The greater 
 
 (1) Lingard v. Messiter, 1 B. & C. 312 ; Storer v. Hunter, 3 Id. 374. 
 . (3) See the authorities collected in Phillipps' observations on Lord Russell's Case, in Mb 
 abridgment of the State Trials ; and Luder's Tracts on Treasons. The charge of E^re, C. 
 J., in Hardy's Case ; his summing up in Home Tooke's Case ; the summing up oi Lord 
 Ellenborough, C. J., in Watson's Caser are in favor of treating the presumption as one of 
 pure law. . ■ 
 
 (3) The following instances may be referred to by the reader. Presumption of mesne 
 assignments, Earl d. Goodwin v. Baxter, 3 W. Bl. 1338 ; of recoveries, Qoodlittle d. 
 Bridges v. Chandos (Dake), 3 Burr^ 1065 ; of enrollment of tithe award, Macdougal v. 
 Eiirrier, 2 Dow. & CI. 135 ; of probate of will. Doe d. Woodhouae v. Powell, 8 Q. B. 576 ; 
 of receipt lof notice of dishonor of bill, from promise to pay, Hicks v. Beaufort (Duke), 4 N. 
 G. 329 ; Patterson v. Becher, 6 B. Moo. 319 ; Brownell v. Bonney, 1 Q. B. 39 ; Campbell v. 
 Webster, 2 C. B. 358 ; or from other circumstances, Wilkins v. Jadis, 1 Mo. & R. 41 ; 
 Curlewis v. Corfield, 1 Q. B. 814. 
 
 Note 194 — It would, therefore, seem that direct proof is of a higher degree than that 
 which is merely circumstantial. Indeed, the exclusion of the latter, where it is obvious 
 that the former exists, and it is not shown to be beyond the reach of the party, is a very 
 common occurrence, as will be seen hereafter, under the rule that the best evidence of 
 which the fact appears to be susceptible, must be produced. Ante, 617, text. The most 
 striking illustration of the present rule in the text, will be found in the case of Williams 
 V. The East India Compan.y, stated ante in the text. The admission of secondary or cir- 
 cumstantial evidence by proof of a subscribing witness's handwriting, where he cannpt be 
 produced, is another instance. Post, of the text, with the notes. So the entries of third 
 persons since deceased, either against, their interest or in the line of their duty. Ante, in 
 the text, with the notes; And see what Parke, J., said of such an entry, in Patteshall v. 
 Turford, 3 Barn. & Adolph. 890. ■ Where direct evidence is attainable, circumstantial is of 
 a secondary nature. 3 Stark. Evj 515. Beside, the great excellence of indirect testimony 
 is its freedom from suspicion ; and no greater discredit can be thrown upon it than when 
 direct evidence is withheld. Id. And see Hazzard v. Smith, IJ. J. Marsh. 66, 68. A person 
 who rests his case on the argument that certain circumstances which he adduces afford a 
 presumption of the existence of a disputed fact, is not entitled to any attention whatever, 
 if he cannot but be in a condition to give direct and positive evidence of the fact itself, 
 supposing it to be true. 3 Ev. Poth. 340, No. 16, § 14. 
 
 For the eff'eot of failure to give explanatory proof in a case of circumstantial evidence, 
 gee ante, p. 615. 
 
 On the diff'erent heads, viz. : of presumptive or circumstantial evidence in criminal cases, 
 see ante, notes 174 to 180, inclusive, paee/im. 
 
 It is not to be disguised that circumstantial, like all other proof, is sometimes fallible. 
 The case nientioned (2 Hal. P. C. 389), of the man condemned as the thief, though he had 
 only received the horse from the real felon, who delivered him with a view to escape a 
 pressing pursuit ; and thus threw the omta on an innocent bailee, and himself escaped, is 
 sometimes referred to as inculcating caution in respect to this species of evidence. Russ. 
 on Cr. 1154, note e. 
 
 There was, too, a tract entitled " The Theory of Presumptive Proof," appended to 
 *705 the first *American edition of Phillipps (1816), the body of which contains some very 
 sensible remarks. But it subjoins eleven startling cases, in which, apparently, the 
 strongest circumstantial evidence, whereon, in some of them, convictions followed, and 
 capital punishments were inflicted, had finally turned out to be delusive ; the victims being 
 in truth innocent. These cases were, for some time, rung through our criminal courts as 
 seriously impugning the doctrine which sanctions such evidence. Weak juries were 
 sometimes alarmed by them; and the judges felt bound peremptorily to interpose, in 
 
BBC. n.] Circumstantial Evidence. 591 
 
 order to maintain tlie best settled principles in the law of evidence. In a case of high- - 
 way robbery (Gen. Sess. of New York, Sept. 1817, before the lite Radcliff, J., then Mayor, 
 and his associates), Gardiner, for the prisoner, proceeded to read and comment on these 
 cases to the jury. The learned judge, in charging the jury, took occasion to explain the 
 nature of their oath. It had been often said by counsel, he observed, that jurors, in ren- 
 dering a verdict, swear that the prisoner Is guilty or not guilty. The jury swear to no 
 such thing : they declare, in rendering a verdict, tfie result of the conviction of their minds, 
 from the evidence produced ; having previously sworn to give a true verdict according to 
 the evidence. He then observed that the cases read by the counsel for tlie pri&oaer were 
 extreme cases ; and such as do not exist, perhaps, in one case in a thousand, The plain 
 practical rules of evidence, which had been established for' ages, ought not to be shaken 
 by any collection of cases in the words of theoretical writers. Such cases may be inserted 
 for the purpose of indudug the greater cautioil in juries; but if employed for any other 
 purpose, their application to the' generality of cases depending on circumstantial evidence, 
 is dangerous in the extreme. Perhaps the determination of one-half the cases tried in our ' 
 courts, depends on the combination of circumstances ; and to apply extreme cases in such; 
 determination, would be sapping some of the most salutary rules known to our law. All', 
 human testimony is fallible^ but jurors, in their decisions, must rely on such testimony. 
 Canton & Bedding's Case, 2 C. H. Rec. 149. 151, 153. i i 
 
 The reporter very aptly illustrates the remark of the court ; adding in ' respect to the 
 author of the book cited by Gardiner, " might he not, by ransacking the English annals, 
 or the reports of adjudicated cases frotn the time of William the Conqueror, have selected 
 eleven cases in which verdicts had been rendered on direct proof independent of circum- 
 stances ; but in which the witness or witnesses swearing to the facts, were guilty of "the 
 foule,st perj ury ? If s6, might he not have written a theory of podtive proof; ahd have 
 produced tliese cases to show its fallibility, with as much propriety as the essay now 
 imder consideration ? 2 C. H. Record. 151. 
 
 Indeed, there can be little doubt that a full catalogue of victinis, eveii if confined to 
 the pprjured witnesses of English legal history, would result in much more frequent 
 cases of fallibility on the side of direct evidence. The bloody'perjuries of Gates, Bedloe 
 and Dugdale have rendered them conspicuous in general history. Could the more ob'scure 
 cases be collected, they would, no doubt, be multiplied to a much greater extent than the 
 learned author of the theoiry of presumptive proof could carry out the cases on his side 
 of the question. 
 
 Honest mistake and fallibility, in direct and positive proof, also come in for their share! 
 of victims. But is a witness to be discredited because he may be perjured, or may be' 
 deeeined? Is a hypothesis to be rejected because it maybe v/ntmef The principle of 
 veracity, the tenacity of memory, acuteness or accuracy of hearing and observation, the 
 skill of professional witnesses, tlie usual connection between circumstances and hypothe- 
 sis, the sagacity of jurors, or wisdom of judicial conclusion may each in turn be wanting ; 
 yet they must be taken to be, as they in truth are, perfectly adequate to the general 
 administration of justice. Oral or written language, though generally perspicuous, whea 
 employW on familiar or ordinary subjects, becomes inaccurate and Obscure, in proportion 
 aa its objects are novel or complex. Here is a defect by wliich the most luminous mean- 
 ing may be, and often is, rendered not only dim and doubtful, but entirely perverted. It, 
 is not denied that y^ language of circumstances labors under a similar defect ; but 
 certainly not a greater ; ia,nd, I think, we have seen that the same argliment which goes' 
 to subvert the force of this kind of evidence would be equally effective against all oral' 
 evidence ; and against our judicial institutions, if not against the English language itself. 
 
 So far, we have taken for granted that the eleven cases reported in the above-men- 
 tioned appendix do, if historically true, present a series of rash or erroneous deductions 
 even from well established circumstances, which were fatal to innocence. A synopsis of 
 those cases will, however, show that this is far from being the case. 
 
 1. The first (Jenning's Case) and the tenth (anonymous) were convictions founded 
 *706 on the foulest *fraud and perjury; the latter of a character so diabolical as to' 
 discredit its historical truth ; and the third (Harris's Case) on the conspiracy, fraud 
 and direct perjury of Morgan and the maid servant, in the proof and simulation of cir- 
 cumstances. These three cases may be set down as convictions procured by framd ani 
 
 II. Of the remaining eight cases, the second (anonymous), the _^tA (MUes' Case), and 
 eleventh (Stringer's Case), each present circumstances on which a common magistrate would 
 hardly be authorized to commit for trial. The second of these resulted in an acquittal ; 
 in the fifth, the jury of neighbors who tried the man were so influenced by horrid rumors 
 and alleged supernatural signs of guilt, that they were completely disqualified for seeing 
 the utter inadequacy of the proof. The report substantially admits that the prisoner owed 
 his death to the prejudice and superstition of his triors. The most material circumstances 
 In the eleventh was made out by the professional error of a witness (a yoting surgeon), 
 which was explained by better skill after the trial, and the man received a pardon. 
 
 III. The fourth (Crow's Case) was an honest mistake of personal identity. ' A great 
 number of witnesses, the neighbors of Geddely, the real criminal, tnistook the former for 
 the latter. Such a mistake is not solitary. Hoag's Case, 5 C. H. Rec. 134. 
 
592 Of IVesumptive Evidence. [ch. x. 
 
 IV. In the seventh (Bradford's Case), the inference was very little wide of the mark. Hp 
 had, in truth, come into the room where the dead body lay', with intent to kill and rob the 
 deceased ; but another had preceded him in the horrid act. It was a mere accident that 
 the entire inference was incorrect ; and that the prisoner suffered for the moral, not the 
 legal guilt of murder. 
 
 , v. The eighth (Shaw's Case) is an instance of the fallibility of direct testimony, the 
 dying declarations of the deceased, the prisoner's daughter. These were, as usual, properly 
 received as competent (except, perhaps, her answer to the last question, which was lead 
 ing.) She charged her father with the murder ; but was unable to explain that she meant 
 by this, his crossing her purpose of marriage, and leading her to commit suicide. This 
 direct testimony being out of the case, the prisoner must have been acquitted. And so if 
 her letter had not been accidentally misplaced. 
 
 "VI. In the ninth (Hawkins and Simpson's Case), the report admits that the guilt of the 
 prisoners was palpable ; and they were properly convicted. But it insists that the judge 
 (Montague, B.) hastily inferred the falsehood of a circumstance set up in the proof of an 
 alibi, upon the ground that ink taken from the same standish within the same minute of 
 time would exhibit the same color. The judge suggested that, because the color of the 
 ink in the body of the receipt and that in the signature differed, the inference was fair 
 that the paper was not drawn and signed from the same standish at the same time. In that 
 , instance, it happened not to hold true of the reporter's notes ; and hence it must be stricken 
 from the catalogue of legitimate circumstances, although it were true of every other 
 standish since the Norman invasion ! Certainly no internal evidence is oftener relied on 
 in books or in practice, as inipeaching the verity of a document. 
 
 So far we have fraud, perjury, conspiracy, a prejudiced jury, professional error and 
 mistake of witnesses, the misapprehension of direct testimony and its accidental non- 
 correction ; and arx'aUeged want of adequate sagacity in -Baron Montague. If the compiler 
 meant to admonish us that caution is necessary under all these heads, it is very well. But 
 if he meant to question either the force or safety of presumptive evidence as it is under- 
 stood by our law, and acted upon in our courts, his success is quite questionable. 
 
 VII. The sixth case of the eleven (anonymous) is, however, certainly an instance where 
 our courts would feel satisfied with a verdict of guilty, upon the presumptive evidence, 
 although the prisoner was, in truth innocent. By an accidental turn in the affair, inscru- 
 table to human sagacity, the guilt belonged to another, wliile it was imputed, and all the 
 circumstances pointed to the prisoner. The manner of his acqiiittal presented an equally 
 striking anomaly. The case is altogether an extreme one, prodigiously interesting in all 
 its features. It is briefly detailed in the appendix, and somewhat differently from other 
 reports of what is evidently the same case. It is not without some degree of instruction ; 
 and we therefore give the following account of it, as republished from a London paper, 
 which reached this country several years ago : 
 
 " The following singular case is at present the subject of dramatic representation at one 
 of our minor theatres (the Coburgh). The narrative is extremely interesting, as exem- 
 plifying that circumstantial evidence, even when apparently the most conclusive, 
 *707 is not always to be relied upon *aB infallible. It happened in the year 1672. The 
 reader will find the account of it in the Gentleman's Magazine for 1762. 
 
 " In the reign of Queen Elizabeth, a person was arraigned before Sir James Dyer, Lord 
 Chief Justice of the Court of Common Pleas, upon an indictmeirt {for the murder of a 
 man, who dwelt in the same parish with the prisoner. The fivsi witness against him 
 deposed, that, on a certain day mentioned by the witness, in the morning, as he was going 
 through a close, which he particularly described, at some distance from the path, he saw 
 a person lying in a condition that denoted him to be either dead or drunk ; that he went 
 to the party, and found him actually dead, two wounds appearing on his breast, and his 
 shirt and clothes much stained with blood ; that the wounds appeared to the witness to 
 have been given by the puncture of a fork, or some such instrument, and looking about, 
 he discovered a fork lying near the corpse, which he took, up, and observed it to be 
 marked, with the initial letters of the prisoner's name ; the witness, at the same time, 
 produced the fork in court, wliich the pdaoner owned to be his, and waived asking the 
 witness any questions. 
 
 " A second witness deposed, that, on the morning of the day on which the deceased was 
 killed, the witness had arisen early with an intention to go to a neighboring market town, 
 which he named ; that as he was standing in the entry of his own dwelling-house, the 
 street door being open, he saw the prisoner come by, dressed in a suit of clothes, the color 
 and fashion of which the witness described ; that he (the witness) was prevented from 
 going to market, and that afterwards the first witness brought notice tothe town, of the 
 death and wounds of the deceased, and of the prisoner's fork being found near the corpse ; 
 that upon this report, the prisoner was apprehended, and carried before a justice of the 
 peace, whom he named and pointed at, he being then present in the court ; that he 
 (the witness) followed the prisoner to the justice's house, and attended his oxamination, 
 during which he observed the excliango of raiment which the prisoner had made since 
 the time when the witness had first seen him in the morning ; that at the time of such 
 examination the prisoner was dressed in the same clothes which he had on at the time of 
 
SEC. 11.] Circumstantial Evidence. 593 
 
 the trial, and that on the •witness charging him with having changed his clothes, he gave 
 several shuffling answers, and would have denied it ; that upon the witness having men- 
 tioned this circumstance of the change of dress, the justice granted a warrant to search 
 the prisoner's house for the clothes described by the witness as having been put off 
 since the morning ; that the ^TitneBS attended and assisted at the search, and that after 
 nice inquiry for two hours and upwards, the very clothes which the witness had described 
 were discovered concealed in a straw bed. He then produced the bloody clothes in court, 
 which the prisoner owned to be his clothes, and to have been thrust into the straw bed 
 with an intention to conceal them, on account or their being bloody. 
 
 " The prisoner also waived asking the second witness any question. 
 
 " A third witness deposed to his having heard the prisoner deliver certain menaces 
 against the deceased, from wlience the prosecutor intended to infer a proof of malice pre- 
 pense. In answer to which, the prisoner proposed certain questions to the court, leading 
 to a discovery of the occasion of the menacing expressions deposed to, and from the wit- 
 ness's answer to those questions, it appeared that the deceased had first menaced the 
 prisoner. <, 
 
 " The prisoner being called upon to make his defense, addressed the foUovring narration 
 to the court, as containing all he knew concerning the manner and circumstances of the 
 death of the deceased, viz : ' That he rented a close in the same parish with the deceased, 
 and that the deceased rented another close adjoining to it ; that the only way to his own 
 close was through that of the deceased, and that on the day the murder in the indictment 
 was said to be committed, he rose early in the morning, in order to go to work in his 
 close, with his fork in his hand, and passing through the deceased's grouud. he observed 
 a man at some distance from the path, lying down as if dead or drunk ; that he thought 
 himself bound to see what condition the person was in, and upon getting up to him, he 
 found him at tlie last extremity, with two wonnds in his breast, from which a great deal 
 of blood had issued; that in order to relieve him he raised him up, and with great 
 difficulty set him in his lap ; that he told the deceased he was greatly concerned at his 
 unhappy fate, and the more so as there seemed to be too much reason to apprehend that 
 he had been murdered ; that he entreated the deceased to discover, if possible ; the occa- 
 sion of his misfortune, assuring him he would use Ms utmost endeavors to do justice to 
 his sufferings ; that the deceased seemed to be sensible of what he said, and in the 
 *708 midst of his agonies attempted, *as he thought, to speak to him, but being seized 
 with a rattling in his throat, after a hard struggle, he gave a dreadful groan, and 
 vomiting a great deal of blood, some of which fell on his (the prisoner's) clothes, he 
 expired in his arms ; that the shock he felt on account of the accident was not to be 
 expressed, and the rather as it was well known that there had been a difference between 
 the deceased and himself, on which account he might possibly be suspected of the mur- 
 der ; that he therefore thought it advisable to leave the deceased in the condition he was, 
 and to take no farther notice of the matter ; that, in the confusion he was in when he left 
 the place, he took away the deceased's fork, and left his own in the room of it, by the side 
 of the corpse ; that being obliged to go to his work, he thought it best to shift his clothes, 
 and that they might not he seen, he confessed that he had liid them in the place where 
 they were found ; that it was true he had denied before the justice that he had changed 
 his clothes, being conscious that this was an ugly circumstance that might be urged 
 against him, and being unwilling to be brought into trouble if he could help it ; and con- 
 cluded his story with a solemn declaration that he had related nothing but the truth, 
 without adding or diminishing one tittle, as he should answer it to God Almighty.' 
 Being then called on to produce his witnesses, the prisoner answered with a steady, com- 
 posed countenance, and resolution of voice, 'Se had no icitness but Ood and Ms mm, 
 conscience.' 
 
 " The judge then proceeded to deliver his charge, in which he pathetically enlarged on 
 the heinousness of the crime, and laid great stress on the force of the evidence, which, 
 although circumstantial only, he declared he thought to be irresistible, and little inferior 
 to the most positive proof ; that the prisoner had indeed cooked up a very plausible story, 
 out if such or the like allegations, were to be admitted, in a case of this kind, no mur- 
 derer would ever be brought to justice, such bloody deeds being generally perpetrated in 
 the dark, and with the greatest secrecy; that the present case was exempted, in his 
 opinion, from all possibility of doubt, and that they ought not to hesitate one moment 
 about finding the prisoner guilty. 
 
 " The foreman begged of his Lordship, as this was a case of life and death, that the 
 jury might be at liberty to vrithdraw, and upon this motion an officer was sworn to keep 
 the jury. 
 
 " The trial came on the first in the morning, and the judge having sat till nine at night, 
 expecting the return of the jury, at last sent an officer to inquire if they were agreed in 
 their verdict, and to signify to them that his Lordship would wait no longer for them. 
 Some of them returned for answer that eleven of their body had been of the same mind 
 from the first, but that it was their misfortune to have a foreman that proved to be a 
 singular instance of the most inveterate obstinacy, who having taken up a different 
 opinion from them, was unalterably fixed in it. The messenger was no sooner return^l 
 
 Vol. L 75 
 
594 Of Preaumptw JEkidence. tcH.. x, 
 
 but the complaining members, alarmed at the thought of being kept under confinement 
 all the night, and despairing of bringing their dissenting brother over to their own way 
 of thinking, agreed to accede to Ms opinion, and having acquainted him with their 
 resolution, they sent an officer to detain his worship a few minutes, and by their foreman 
 brought in the prisoner not guilty. His Lordship could not help expressing the greatest 
 surprise and indignation at this unexpected verdict ; and after giving the jury a severe 
 admonition, he refused to record their verdict, and sent them back again, with directions 
 that they should be locked up all night without fire or candle. The whole blame was 
 publicly laid on the foreman by the rest of the members, and they spent the night in 
 loading him with reflections, and bewailing their unhappy fate in being associated with 
 BO hardened a wretch ; but he remained quite inflexible, constantly deolaiing he would 
 suffer death rather than change his opinion. 
 
 "As soon as his Lordship came into court, the next morning, he sent again to the jury, 
 on which all the eleven members joined in requesting their fortman to go into the court, 
 assuring him they would adhere to their former verdict, whatever was the consequence, 
 and, on being reproached with their former inconstancy, they promised never to desert or 
 recriminate upon their foreman any more. Upon these assurances, they proceeded into 
 court, and again brought in the prisoner not guilty. The judge, unable to conceal his 
 rage at a verdict, which appeared to him in the most iniquitous light, reproached them 
 with the severest censures, and dismissed them with this cutting reflection, that the blood 
 of tJhe deceased lay at their door. 
 
 " The prisoner, on his part, fell on his knees, and with uplifted eyes and hands, thanked 
 God for his deliverance, and addressing himself to the judge, cried out, ' You see, my, 
 
 Lord, that God and a good conscience are tlie best of witnesses.' 
 *709 " These circumstances made a deep impression on the mind of the judge, and, as soon 
 as he was retired from the court, he entered into a discourse with the high sheriff upon 
 what had passed, and particularly examined him as to his knowledge of this leader of 
 the j ury. The answer this gentleman gave his Lordship was, that he had been acquainted 
 with him many years ; that he had an estate of his own of about £50 per annum, and 
 that he rented a very considerable farm besides ; that he never knew him charged with 
 an ill action, and that he was universally esteemed in his neighborhood. 
 
 " For further information his Lordship likewise sent for the minister of the parish, who 
 gave the same favorable account of his parislioner, with this addition, that he was a 
 constant churchman and a devout communicant. 
 
 " These accounts rather increased his Lordship's perplexity, from which he could think 
 of no expedient to deliver himself, but by having a conference in private with the only 
 person who could give him satisfaction. This he desired the sheriff to procure, who 
 readily offered his services, and without delay brought about the desired interview. 
 
 '■ Upon the juryman's being introduced to the judge, his Lordship and he retired into 
 a closet, where his Lordship opened his reasons for desiring that visit, making no scruple 
 of acknowledging the uneasiness he was under, and conjuring his visitor frankly to dis- 
 cover his reasons for acquitting the prisoner. 'The juryman retunoed for an answer, that 
 he had sufiicient reasons to justify his conduct, and that he was neither afraid nor 
 ashamed to reveal them, but that as he had hitherto locked them up in his own breast, 
 and was under no compulsion to disclose them, he expected his Lordship would engage 
 upon his honor, to keep what he was about to unfold as secret as he himself had done ; 
 which his Lordship having promised to do, the juryman then proceeded to give his Lord- 
 ship the following account : That the deceased being titheman of the parish where he 
 (the juryman) lived, he had, the morning of his decease, been in his (the juryman's) 
 grounds amongst his corn, and had done him great injustice, by taking more than his 
 due, and acting otherwise in a most arbitrary manner ; that when he complained of this 
 treatment, he had not only been abused with scurrilous language, but that the deceased 
 had likewise struck at him several times with his fork, and had actually wounded him in 
 two places, the scars of wliicli wounds he then showed to his Lordship ; that the deceased 
 seeming bent on mischief, aUd he (the juryman) having no weapon to defend himself, had 
 no other way to preserve his own life but by closing with the deceased, and wrenching 
 the fork out of his hands, which having effected, the deceased attempted to recover the 
 fork, and in the scuffle received the two wounds, which had occasioned his death ; that 
 he was inexpressibly concerned, at the accident, and especially when the prisoner was 
 taken up on the suspicion of the murder ; that the former assizes being but just over, he 
 was unwilling to surrender himself, and to confess the matter, because his farm and 
 affairs would have been ruined by his lying in jail so long; that he was sure to have 
 been acquitted on his trial, for that he had consulted the ablest lawyers upon the case, 
 who had all agreed, that as the deceased had been the aggressor, he would only have 
 been guilty of manslaughter at the most ; that it was true he had suffered greatly in his 
 own mind on the prisoner's account, but being well assured that imprisonment would 
 be of less ill consequence to the prisoner than to himself, he had suffered the law to 
 take its course ; that in order to render the prisoner's confinement as easy to him as 
 possible, he had given him every kind of assistance, and had wholly supported his family 
 ever since ; that in order to get him clear of the charge laid against him, he could think 
 
SEC. n.] Circumstantial Evidence. 595' 
 
 of no other expedient than that of procuring himself to be summoned on the jury, and 
 sit at the head of them, which with great labor and expense he had., accomplished, having 
 all along determined, in his own breast rather to die lumself than suffer any harm to be 
 done to the prisoner. 
 
 " His Lordship expressed great satisfaction at this account, and after thanking him for 
 it, and making this further stipulation, that in case his Lprdship should survive him, he 
 might then be at liberty to relate this story, that it might be delivered down to posterity, 
 the conference broke up. 
 
 " This juryman lived fifteen years afterwards. Chief Justice Dyer inquired after him 
 every year, and happening to survive him, delivered the above relation." 
 
 We had occasion, ante, note 179, to cite the strong remarks of Livingston, J., in United 
 States V. Jacobson, made ( A. D. 1817) shortly after the " Theory of Presumptive Proof", 
 had furnished our criminals, as was believed, with a ready magazine of defensive 
 *710 armor. Similar resorts were, *it seems continued before the able successor of that 
 lamented jurist. Such was the course in Jones' Case. United States C. C, April, 
 1824, 2 Wheel. Cr. Cas. 451. " A number of cases" (says Thompson, J., in his charge tw 
 the jury), "have been cited and read, to show you the dangerous tendency of this kind 
 of^roof. It is possible an innocent person" may have suffered; but such cases (if any 
 such there were) could be no objection to this kind of evidence. If jurors were to disre- 
 gard it, there would be an end to the administration of law, and to government. It is 
 the duty of the jury to weigh all the evidence for and against the prisoner ; and fair and 
 legal inferences are to be made from facts and circumstances. They are often more 
 satisfactory and conclusive than the testimony of witnesses. Id. 461, 462. Again, 
 per Wasliington, J., (in 1806), " circumstantial evidence is sufficient, and is often more 
 persuasive than tlie positive evidence of a witness, who may, be mistaken ; whereas a 
 concatenation, and a fitness of many circumstances, made out by different witnesses, can 
 seldom be mistaken, or fail to elicit the truth." United States v. Johns, 1 Wash. C., C. 
 Rep. 372. Per Riker, Recorder : " It is to be received with caution ; nevertheless, circum- 
 stances are often so strong as to amount to satisfactory proof." People v. Smith, N. T. 
 Gen. Sess. (Jan. term, 1828), 1 Wheel. Cr. Cas. 131, 132. And per Park, J., (in Rex v. 
 Thurtell, for the murder of We^re, Hartford Assizes, Jan. 1824, Id. 462, not^: " The eye 
 of omniscience can alone see the truth in all cases ; circumstantial evidence is there out of 
 the question ; but clothed, as we are, with the infirmities of human nature, how are we 
 to get at the truth without a concatenation of circumstances? Though in human judi- 
 cature, imperfect as it must necessarily be, it sometimes happens, perhaps in the course 
 of one hundred years, that in a few solitary instances, owing to the minute and curious 
 drcumstances which sometimes envelope human transactions, error has been committed 
 from a reliance on circumstantial evidence ; yet this species of evidence, in the opinion of 
 all those who are most conversant wijth the administration of j ustice, and most skilled, in 
 judicial proceedings, is much more satisfactory than the testimony of a single individual 
 who swears that he has seen a feet committed." 
 
 The magnitude of the danger arising from the fraudulent simulation of circumstances, 
 is greatly lessened by almost inevitable detection. To show this, Mr. Starkie has abridged 
 three remarkable cases. One was where the deceased being strangled, his murderers, to 
 make the case look like a suicide, ran his own sword through his. body, and threw him 
 into a ditch, laying his gloves, kc., on the bank ; but there was no blood about the place, 
 and his body was discolored and bruised. On drawing out ,the sword, no blood followed, 
 and the ne<i was so flexible that the chin could be turned from one shoulder to the other. 
 Another case, was where the murderers cut the throat of a female in bed ; and it was 
 distinguished from suicide by the bloody mark of a left hand on the left hand of the 
 deceased. ' Another, was where the deceased's pistol was found lying near him ; but on 
 examining the ball by which he had been killed, it was found to be too large for the 
 calibre of his pistol. 3 Stark. Bv. 504, 505. 
 
 In People v. How, for the murder of Church (before the 0. and T. Alleg. Co. Feb. 1824, 
 Rochester, Circuit Judge, presiding, 1 Wheel. Cr. Cas. 413), it appeared by direct proof, 
 that between 1 and 2 A. M. (30th December, 1823), he was called out of bed at his house 
 by a person pretending to have a letter for him ; and as he opened the door was shot dead 
 on the spot. The circumstances from which the prosecution sought to infer that the 
 prisoner was the murderer (the inmates of Church's house not being able to identify any 
 one), were : 1. That the prisoner had not long before frequently complained that Church 
 had defrauded him ; 2. Had used threats against Church, to a number of people ; and on 
 one occasion had threatened to take his life ; 3. |Iad endeavored to persuade a person to 
 assist him in putting Church out of the way ; 4. Had threatened to shoot him ; 5. Was 
 seen lurldng a few evenings before the murder with his rifle, and endeavored to conceal 
 it; 6. Left the village of Angelica the same evening and in time to have gone to 
 Church's and have committed the murder; 7. Had sorttething under his coat exhil>. 
 iting the appearance of a rifle ; 8. His suspicious conduct on the evening of the 
 murder ; 9. In the morning, the horse upon which he rode on the evening of the murder 
 was found wet with sweat ; 10. His false statements about the horse being sick ; 11. The 
 ball with which Church was shot matched one found in the prisoner's rifle box ; 13. The 
 
596 Of Presumptive Woidence. [ch. x. 
 
 lint and horse hair fonnd adhering to the rifle ; 13. The patch and tow wadding found 
 in the house of the prisoner near where he lay, &e. On these circumstances, after an able 
 defense, the prisoner was convicted and sentenced. He afterwards confessed his g^mlt,and 
 was executed. . 
 
 In these cases of homicide, the precaution of Lord Hale seems to he enough for 
 *711 laying the *fonndation of circumstantial evidence : " I would never convict any 
 person of murder or manslaughter unless the fact was proved to be done, or at 
 least the body found dead." 2 Hal. P. C. 290. A departure from this important sugges- 
 tion, which is now universally acted upon, was a capital error in Miles' Case, cited »upra, 
 from Phil. Ap. The body being afterwards found, it plainly appeared that the death was 
 accidental. The judge should have stopped the prosecution. In the two illustrative 
 cases stated by Hale (P. C. ict saqyrd), one of the persons supposed to have been murdered 
 was sent on a long sea voyage, and the other had run away. The late remarkable case of 
 Stephen and Jesse Boom, of Vermont, was in truth of the latter character, though the 
 prisoners actually confessed their imputed guilt. Bennington S. C, Sept. term, 1819, 
 Pamph. Fay & Burt. 
 
 The rule that the body must he found dead, is adhered to with great strictness in the 
 English courts. Where the father and mother of a bastard child threw it into the dock, 
 and the body was never afterwards found, an acquittal was directed, because the flow of 
 the tide migJit have cwried out the iody of the living infant. Case cited by Garrow, arff. 
 in Hindmarsh's Case, 2 Leach, 571 ; S. C, Russ. on Cr. 683, note. Though it must be con- 
 fessed that Hindmarsh's Case itself looks much like a departure irom a strictness ab»o- 
 hitely safe. There, a sailor having been seen to throw his captain overboard, it was put 
 to the jury, on the circumstances of a previous scuffle between them, a billet of wood on 
 the deck, and stains of blood on the deck and the prisoner's clothes, whether he had not 
 killed the deceased before he threw him overboard ; and so the dead body might lie said to 
 ham been found (seen) by the taitneas, within the rule. 3 Ijeach, 571 ; S. C, Buss, on C*r. 683. 
 Seb late case of People v. Ruloff, 18 N. T., 179. 
 
 See farther, on the subject of presumptive evidence in criminal cases generallv, 1 Chit. 
 Cr. Law, 563 ; 4 Bl. Coram. 358, 359. 
 
 It is not the nature of our legal reports to aid us much in practically collecting the 
 amount of credibility, either as it is to be sought for in a single witness, in numbers con- 
 curring to establish the same fact, or in the relative weight of conflicting witnesses. In 
 general, the utmost those reports can do, is to determine when the question of credibility 
 fairly arises, suggest abstract rales for its deteniiination, and leave their application to 
 the jury, under the directiqn of the judges at the circuit. In the course of the cases, we 
 may gather that the integrity, ability, number and consistency of witnesses, the conform- 
 ity of their relations with experience, or with collateral circumstances, and the contrary 
 of all these, &c., may in turn be resorted to as the criteria of credibility. Yet this is 
 mainly for the purpose of the negative conclusion : " To determine the force or even exis- 
 tence of these criteria, belongs not to the judges sitting over their paper case." Such 
 grounds of decision are too metaphysical to admit of being accurately bodied forth in his- 
 tory, so as to exhibit their exact bearing upon the question ; much more so the ingre- 
 dients of which they may be formed, and the steps by which the supposed grounds may 
 be reached or avoided ; and still more so the means, the modus operandi by which these 
 latter may have been elicited. The difficulties oftentimes inherent in the nature of the 
 subject, can be obviated in no other way than by confining the examination to the view, 
 the hearing, the manipulations, the tact of counsel, judge and jury, and leaving the latter 
 to pronounce the irrevocable result. 
 
 Not that considerable certainty and system has not been introduced by the reports into 
 this department of the law ; and probably enough for all the ordinary purposes of inves- 
 tigation. It is therefore the business of the lawyer to consider the adjudged cases as far 
 as they go ; and beyond this he can still derive great aid from learned and experienced 
 writers among the profession, some of whom have furnished much valuable instruction, 
 by giving the result of their own observation. 
 
 We shall have occasion, under a future head, to speak of matters admissible in evi- 
 dence as affecting the credit of witnesses, and upon which the jury may act as competent. 
 And we shall here content ourselves with a few cases, showing where the weight and 
 effect of oral testimony is settled by the law, where it must be left open for the consider- 
 ation of the jury ; and then proceed to some suggestions for determining the force and 
 effect of evidence touching credibility, after it shall have reached them. 
 
 1. Where there is no difficulty in saying that a witness is unimpeached, the facts sworn 
 to by him being uncontradicted, either directly or indirectly, by any other witness, and 
 there is no intrinsic improbability in his relation, ii jury cannot disregard his testimony 
 on the ground, arbitrarily assumed, that they are satisfied, from his manner, he Is 
 *713 biased in favor of the party calling *hlm. Newton v. Pope, 1 Cowen's Rep. 109. 
 Were this otherwise, all certainty in the result, from oral testimony, must be given 
 up. One credible witness is sufficient even to convict of a crime ; and a useless repetition 
 of witnesses is discoiintenanced by the law. The judge might, by the civil law, in his 
 discretion, stop the multiplication of witnesses to the same matter. Wood's Civ. Law, 
 
SEC. 11.] Credibility of Witnesses. 597 
 
 317, cites D. 33, 5, 1, 3 ; 3 Dom. b. 3, tit. 6, 8 3, art. 14. And, this is not an unusual exer- 
 cise of discretion in our own courts. See Beekman v. Bemus, 7 Cowen's Eep. 39. The 
 judge is constantly in the habit of directing a verdict of the jury, which is taken, and 
 entered by the clerk as a matter of course ; unless tlie jury object. Saville v. Lord Far- 
 nam, 3 Mann. & Kyi. 316. And see Nichols v. Goldsmith, 7 Wend. 160. And where a 
 cause is thus stopped, and the party in consequence forbears to go on with his evidence, 
 and the jury find against the judge's direction, a new trial will be granted, even though 
 the direction was contrary to tlie weight of evidence. Dunham v. Baxter, 4 Mass. Rep. 
 79. Though tliis was once held otherwise, where the counsel stopped on the mere inti- 
 mation of the judge. Beekman v. Bern us, «Mpra. Quere. Again; per Gaselee, J. ; "I 
 was requested to nonsuit the plaintiff I could not do so upon the plaintiff's case, thpugh 
 in similar causes, I have occasionally done sn, after hearing the defendant's case ; but 
 when there is any doubts as to the facts, they must be found by the jury, Davis v. Rus- 
 sell, 5 Bing. 854. And per Marcy, J. : " Where the evidence in favor of the plaintiff is 
 80 slight, and that which supports the defense so strong, that had the jury found for the 
 plaintiff the court would have felt itself called on to set aside their verdict, it will not 
 send the cause back to the jury, because the judge ordered a nonsuit. Demyer v. Souzer, 
 6 Wend. 430, 4-38 ; Ward v. Vanduzer, 3 Hall's Rep. N. Y. S. C. 162, S. P. 
 
 On the other hand, if the fact dep^d entirely on the testimony of an uncorroborated 
 witness, whose credibility is plainly impeached, the jury are equally bound to disregard 
 his testimony. Where the plaintiff's sole uncorroborated, witness (or, in this case, it 
 seems even if he he slightly corroborated) has plainly been guilty of perjury (apparent 
 now on his cross examination) upon the present or a former trial of .the same matter, his 
 testimony must be wholly rejected. Dunlap v. Patterson, 5 Cowen's Rep. 343, 346. So, 
 if his testimony be corruptly false in any particular, the whole must be rejected. State 
 V. Jim, 1 Dev. 508. 
 
 And it has been so holden in several instances, where the moral credibility of the 
 witness was plainly impeached; for the citizen has a right to demand that no issue 
 should be decided against him without the testimony of at least one credible witness. 
 Per Daggett, J., in Newell v. Wright, 8 Conn. Rep. 323. Thus, where by the witness's 
 own confession, he was engaged with a gang of counterfeiters and in other criminal 
 practices, and his general character was infamous; held, that a verdict founded on his 
 testimony could not stand. Allen v. Young, 6 Monroe, 136. So if it appear he has been 
 convicted of felony, by the record of his own admission. Per Colden, Mayor, in Orr's 
 Case, 5 Cit. H. Kec, 181 ; per Radcliff, Mayor, in Brown & Ray's Cases, 3 Id. 38. And so, 
 though he may have been pardoned (and thus rendered competent), he is not credible 
 unless corroborated by others. Per Thompson, U. S. Judge, Circuit Court, April, 1824, 
 in United States v. Jones, 2 Wheel. Cr. Cas. 451. Yet, though he were concerned in the 
 very felony of which he testifies, if he be corroborated, the jury may believe him. Per 
 Radcliff, Mayor, in Ferguson's Case, 1 C. H. Rec. 65 ; per Riker, Recorder, in M'Niff's 
 Case, Id. 8, 10. Again ; where the maker of a note, wliich was indorsed for his accom- 
 modation, being released, swore that the note was indorsed (and a receipt to that effect 
 given by the indorsee) as collateral security, but in the derangement of his affairs, he had 
 lost the receipt ; Daggett, J., doubted here whether the fact could be taken as proved by 
 a credible witness. But when, in addition, it appeared that he had repeatedly contra- 
 diced his own statement, in letters written by him and in conversation, and his character 
 was besides slightly impeached, the court granted a new trial, although the verdict was 
 in favor of the witness's credibility. Newell v. Wright, 8 Conn. Rep. 319, 334. And, in 
 anotlier case, per Story, J. (on a question whether goods were legally captured as prize or 
 piratically taken by citizens of the United States), " If the cause stood solely upon the 
 testimony of the witnesses who have been examined on behalf of the libelants" (those 
 wlio claimed that the goods had been illegally taken), " we should have great hesitation 
 in admitting the conclusions which have been drawn from it. The witnesses indeed 
 speak directly and uniformly, either to the point of illegal equipment or illegal augmen- 
 tation of force within our ports. But their testimony is much shaken by the manifest 
 contradictions which it involves, and by declarations of facts, the falsity of which 
 *713 was entirely within their knowledge, *and has been completely established in 
 proof. Jt has been said that if witnesses concur in proof of a material fact, they 
 ought to be believed in respect to that tact, wliatever may be the other contradictions in 
 their testimony. That position may be true under circumstances : but it is a doctrine 
 which can be received only under many qualifications, and witli great caution. If the 
 circumstances respecting which the testimony is discordant be immaterial and of such a 
 nature that mistakes may easily exist, and be accounted for in a manner consistent with 
 the utmost good faith and probability, there is much reason for indulging the belief 
 that the discrepancies arise from the infirmity of the human mind, rather than from 
 deliberate error. But where the party speaks to a fact in respect to which he cannot be 
 presumed liable to mistake, as in relation to the country of his birth, or his being in a 
 vessel on a particular voyage, or living in a particular place, if the fact turn out other- 
 wise, it is extremely difficult to exempt him from the charge of deliberate falsehood ; and 
 courts of justice, under such circumstances, are bound, upon principles of law' and 
 
598 Credibility, how determined. [ch. x. 
 
 morality and justice, to apply the maxim; falsua in unoi fdlsua in omn^ras." The Santis- 
 Bima Trinidad, 7 Wheat. 383, 338,, 389. 
 
 And so, thojigh tlie discrepancy arise from afly innocent cause, other than an infirmity 
 of the mind — as the difference of observation, tje. nature of negative and posdtive testi- 
 mony — the declarations of witnesses should be reconciled, if possible ; and if the jury find 
 against its obvjous weight when tested by these principles, the verdict will be set aside. 
 Thus, where three witnesses testified explicitly to a set of words spoken in a ball room, 
 where there was a noise from dancing and the violin, and a controversy, followed \)f con- 
 fusion about the same time, though eleven witnesses who were in the room testified that 
 they did not hear any such words, and that, in their opinion, they should have heard them, 
 if uttered-T-yet, the jury finding against the speaking, a new trial was granted. Johnson 
 V. Scribner, 6 Conn. Rep. 185. The court held the affirmative testimony decisively entitled 
 to the greater weight ; and that the testimony of the eleven was reconcilable upon tbe 
 ground of wfanting opportunity or attention. Id, 
 
 The testimony of witnesses apparently inconsistent is always to be so construed as, if 
 possible, to exempt them from the imptitation of pequry. Affirmative testimony is, from 
 its nature, generally of greater weight, and better entitled to weight than negative ; and 
 the want of means or opportunity in the witness of knowing the matters in controversy, 
 his actual inattention, the absence of circmnstanoes likely to excite his attention, or the 
 existence of circumstances lU^ely to divert it, are considerations which greatly diminish 
 the effect of negative testimony, Johnson v. Scribner, 6 Conn. Rep. 185. And see Wood- 
 cook V. Bennett, 1 Cowen, 711. Yet negative may equal positive testimony, and put us 
 to consider the credibility of witnesses on other grounds ; as if two listen with equal atten- 
 tion, and yet contradict each other as to the fact of the words being spoken. Id. 188, 189, 
 per Hosflier, C. J. So you may prove that a man was not at a particular place on a cer- 
 tain day, by showing that he was at another, sq great a distance as to render it impossible 
 to be at both. Dranguet y. Prudhomme, 3 Miller's Lou. Rep. 74. 
 
 So, where S, swore jjositively that an account was presented by him to L., who swore 
 that he did nai recoUeet or believe that it was, yet cre(fit was given to S. The latter also 
 swore that the defendant made a promise, on such a day, within the state. It being shown 
 he was out of the state on that day, yet the testimony of S. was maintained as being a 
 mere mistake of the time, which may well be ; and the promise was also proved by another. 
 Flood V. Thomas, 5 Mart. Lou. Rep. (N. S.) 560. A mistake in memory or judgment in one 
 part does not discredit other parts of a witness's relation, farther than it may go to his 
 general want of adequate power of conception or memory. Per Henderson, J., in State v. 
 Jim, 1 Dev. 510. . 
 
 So a wide distinction should be made between witnesses who have an opportunity of 
 knowing a fact (aa that a writing has not been altered) and those who express a, mere 
 opinion from its appearance. The testimony of one of the former is worth a dozen of the 
 latter. Per Sutherland, J ., in Malin v. Malin, 1 Wend. 623, 659. And the opinion or 
 belief of a witness is sometimes to be entirely rejected, as founded on insuiBcient preraiaes. 
 Thiis, where a witness said one tract of lanc^ bounded upon another, but grounded himself 
 on a survey, the particulars of which he did not pretend to give, this shall be taken as 
 mere general [orvagute belief or opinion. Jackson ex dem. The People v. Wendell, 5 
 Wend. 142. In a late case, where fifteen witnesses swore that a revolutionary soldier was 
 alive and disbanded at the close of the war, and but one that he fell in battle during the 
 war, the testimony of the latter being confirmed by various military documents, the bal- 
 loting-book omitting his name, it being entered among the dead, where it was also 
 *714 *mentioned that letters patent were delivered to his administrator, the same fact 
 of his death appearing on muster rolls, pay rolls, &c., the jury found according to 
 the testimony of tl^e single witness thus confirmed ; and the Supreme Court expressed 
 their satisfaction with the verdict. Jackson ex dem. Fowler v. Loomis, 12 Wend. 37. 
 In estimates of the expense of raiding a number of young slaves in Louisiana, a majority 
 of the witnesses placed it at thirty dollars per annum for each ; and one at fifteen dollars, 
 which the court adopted as probably the fairest estimate under the circumstances. They 
 remark that " numeration is certainly the easiest mode by which judges can arrive at 
 conclusions on matters of fact supported alone by the testimony of witnesses ; but the law 
 of evidence requires that their testimony should be weighed by probabilities, and its truth 
 be rather ascertained in this manner than by counting numbers ;" and the court governed 
 themaelves much by the known cheapness of the food and clothing in the climate of that 
 state. Kemp v. Wamack, 2 Miller's Lou. Rep. 373. 
 
 3. Yet there is often no certain standard by which the credit of conflicting witnesses 
 can be ascertained. Different courts and juries would entertain different opinions, and 
 eath must judge for themselves. Tlie People v. Superior Court of the City of New York, 
 5 Wend. 126. In such a case, generally, the whole is referable to the jury, who deter- 
 mine the weight due to each. Doe ex dem. Jones v, Fulgham, 3 Murpli. 364, 367. 368. 
 And this, even though the discrepancy be between the plaintiff's own witnesses. • Thus, 
 upon a question of variance, on trying an indictment for forging a note not produced, one 
 of the witnesses for the prosecution swore that it was subscribed Henry (as charged), and 
 unother, H. (variant) ; held, it should be put to the jury, who found the former witness. 
 
SEC. II.] Elemmiary principles of JSoidence. 699 
 
 correct. Pet Ewing, Ch. J.: "An indictment does not fall because one witness differs 
 from another in points more or less material, or even in some directly contradicts him." 
 State V. Potts, 4 Halst. 26, 31. A fortiori, where the discrepancy is only partial. For, 
 where the plaintiff called a witness who proved two several facts, one of which was for 
 the plaintiff— but the other would have defeated him — he was allowed to call other wit- 
 nesses to disprove the latter fact ; and yet have the credit of his first witness go to the 
 jury on the fact which he wished to maintain by him. Bradley v. Bicardo, 8 Bing. 57. 
 So where the sole witness to the defendant's handwriting prevaricated, and swore negatively 
 and affirmatively as to Uis knowledge. Beauohamp v. Cash, Dowl. & Kyi. N. P. Cas. 3. 
 
 And so, in general, jurors are the unfettered, illimitable and final judges, whenever a 
 question of credibility fairly arises in respect to one or more witnesses, whether the latter 
 be concurring or conflicting. Heister v. Lynch, 1 Yeates, 108 ; Felil v. Goods, 3 Binn. 495 ; 
 Winchell v. Latham, 6 Cowen's Bep. 683 ; Ackley v. Kellogg, 8 Cowen's Bep. 333 ; 
 Sprague v. Mitchell, 3 Chit. Rep. 271 ; Fowler v. The Mtna. Fire Ins. Comp. of New 
 Tork, 7 Wend. 370 ; Bucklin v. Thompson, 1 J. J. Marsh. 233, 337 ; Jackson ex dem. 
 Fowler v. Loomis, 13 Wend. 37. 
 
 Where the matter of credibility is thus left open for the consideration of the jury, no 
 certain rule can be laid down for the conduct of their understanding. It is well settled 
 that they cannot act on their own private knowledge of any fact; for then it could not 
 be known whether the verdict be for or against the evidence. 8 Stark. Ev. 449 ; 8 Bl. 
 Comm. 375. The contrary would put an end to the granting of new trials ; and the very 
 fact that a man be prepossessed, is good cause of challenge. If he know anything mate- 
 rial, he ought to acquaint the court of this ; and be sworn as a witness. Said in Smith ex 
 dem. Dormer V. Parkhurst, Andr. 315, 331. He is to examine and appreciate the credi- 
 bility of witnesses, according to his best knowledge and observation in the light of 
 experience and the laws of human action. In this he many times has to do with various 
 mental faculties, especially memory and attention ; and various foibles, frailties and vices 
 as constrasted with circumspection, candor and moral worth. Several writers have fur- 
 nished us with valuable illustrations upon these heads, which cannot be too much studied. 
 The powers of attention and memory, the two cardinal faculties of a witness's mind, are 
 illustrated by our author in a quotation from the bishop of Landaff, applicable to certain 
 slight discrepancies among the several evangelical writers, by which the credit of their 
 histories is rather fortified than impaired ; while Mr. Starkie (3 Stark. Ev. 468) has favored 
 us with a like illustration from Paley's Evidences of Christianity. On the other hand, 
 while, as we shall see hereafter, Mr. Evans gives full force to the general argument, he 
 cautions us against its too common and indiscriminate application. To excite due caution 
 against implicit reliance on the powers of memory, when exerted upon certain subjects, 
 Mr. Starkie (Id. 463, note) tells us of a learned judge, who rose fresh from the 
 *715 evidence, and in summing up, recited a vritness's testimony *against a prisoner, on 
 a charge of forgery, as imputing to him the words "I am the drawer, the acceptor 
 and the indorser of the bills ;" whereas the true words were " I know the drawer," &o. 
 The error was corrected ; but the learned author remarks, " had the witness made the 
 same mistake, the consequences might have been fatal." 
 
 Beading the above note suggested an instance to the editor, which may not be without 
 its use. One Caldwell being on his trial for perjury, in having denied the existence of a 
 slightly material circumstance against one Baker, who was on his trial for murder, stood 
 already contradicted by several witnesses, who swore to the circumstance, and to Cald- 
 well's knowledge of it. The circumstance having transpired some fourteen or fifteen 
 years before, gave room to suppose that he might have forgotten it. Had the jury 
 believed this, as they most likely would have done, his acquittal was certain ; and this the 
 editor (who presided at the trial) thought must be the result. But Caldwell had recently 
 been examined on a charge of participatmg in the murder, before three magistrates, and 
 one of these, Mr. James Newton, deposed that, on that occasion, Caldwell had admitted 
 his recollection of the circumstance. After the cause had been summed up by counsel, 
 and just as the editor was rising to charge the jury, under the strong impression that 
 such' evidence would lead to an inference of corrupt suppression by Caldwell, another of 
 the examining magistrates, Mr. Joseph A. Sweet, gratuitously came to the stand, and tes- 
 tified that Cfudwell had denied his recollection before the magistrates in the same terms 
 as at the trial. The third, Mr. Anson Thompson being called, agreed in recollection with 
 Mr. Sweet. The prisoner, as the editor was afterwards informed, had before this given 
 himself up as the hopeless victim of misrecoUection. But he was acquitted. Saratoga 
 Oyer and Terminer, Nov. 1881, Cowen, C. J., presiding. 
 
 The anxiety of legal writers to admonish the judicial inquirer of the occasional frailty 
 or perversion of memory, will be found most laudable, if we advert to the immense tracts 
 of investigation where oral testimony must be employed as the instrument ; and that, too, 
 in examining those very subjects where it is most liable to err ; the least open to correc- 
 tion when mistaken, or detection when false. Verbal contracts, admissions, declarations, 
 with their endless diversity of application ; oral slander and perjury, which occupy so 
 much time in our courts of justice, depend almost entirely upon the capacity of witnesses 
 to remember words and phrases according to their just import. 
 
600 Elementary IVinciples. [ch. x. 
 
 Upon these heads, however, and every other subject of inquiry conducted by the lights 
 of oral testimony, we ought not to suppress those unperverted principles implanted in our 
 nature to regulate the degree of reliance upon this species of evidence. Otherwise, judi- 
 cial sagacity would degenerate into distrust and incredulity. Confidence should generally 
 be extended to human testimony. Kejection and qualification are exceptions. " The 
 wise and beneficent Author of nature, who intended that we sliould be social creatures, 
 and that we should receive the greatest and most important part of our knowledge, by 
 the information of others, hath, for this purpose, implanted in our natures two principles 
 that tally with each other. The first of these principles is a propensity to speak truth, ^ 
 and to use the signs of language so as to convey our real sentiments, This principle has 
 a powerful operation even in the greatest liars ; for where they lie once, they speak truth 
 a hundred times. Truth is always uppermost, and is the natural issue of the mind. It 
 requires no art or training, no inducement or temptation ; but only that we yield to nat- 
 ural impulse. Lying, on the contrary, is doing violence to our nature ; and is never 
 practiced, even by the worst men, without some temptation. Speaking truth is like using 
 our natural food, which we would do from appetite, although it answered no end ; but 
 lying is like tailing physic, which is nauseous to the taste, and which no man takes 
 but tor some end which he cannot otherwise attain. There may, indeed, be temptations 
 to falsehood which would be too strong for the natural principles of veracity unaided by 
 the principles of honor and virtue ; but where there is no such temptation, we speak truth 
 by instinct. By this instinct, a real connecti.on is formed between our words and our 
 thoughts ; and thereby the former become fit to be signs of the latter, which they could 
 not otherwise be. And although this connection is broken in every instance of lying and 
 equivocation, yet these instances being comparatively few, the authority of human testi- 
 mony is only weakened by them, but not destroyed. 
 
 • Another original principle implanted in us by the Supreme Being is a disposition to 
 confide in the veracity of others, and to believe what they tell us. This is the counter- 
 part to the former ; and as that may be called the principle of 'oeracUy, we shall, 
 *716 for the want of a more proper name, *call this the principle of credulity. It is 
 evident that, in matter of testimony, the balance of human judgment is by nature 
 inclined to the side of belief, and turns to that side of itself, where there isnotliing put into 
 the opposite scale. If it were not so, no proposition that is uttered in discourse would be 
 believed until it was examined and tried by reason ; and most men would be unable to 
 find reasons for believing the thousandth part of what is told them. Such distrust and 
 incredulity would deprive us of the greatest benefits of society, and place us in a worse 
 condition than that of savages. And, as in many instances, reason , in her greatest matu- 
 rity, borrows aid from testimony ; so in others, she mutually gives aid to, and strengthens 
 it authority. For as we find good reason to reject testimony in some cases, so in others 
 we find good reasan to rely upon it with perfect security even in our most important con- 
 cerns. The characLer, the number, and the disinterestedness of witnesses, the impossi- 
 bility of collasion, and the incredibility of their concurring in their testimony with- 
 out collusion, may give an irresistible strength to testimony, compared to which its 
 native and intrinsic authority is very inconsiderable." Dr. Reid's Inquiry into the Human 
 Mind, § 34. 
 
 " All regard to testimony supposes the general proposition, that witnesses, not having 
 any motives for asserting what is false or suppressing what is true, having had an ade- 
 quate opportunity of observing the subject to which they depose, having actually 
 observed it with adequate attention, and having a, distinct and perfect memory with 
 respect to it, relate what they have seen or hoard, with accuracy and fidelity ; and the 
 veracity of testimony, given by persons fully answering this description, is received and 
 acted upon as a sufficient test of moral and judicial certainty. If a person, wholly indif- 
 ferent to the event of a cause, should depose that within the preceding hour, he had seen 
 one of the parties with whom he had been well acquainted, execute a release, the fact of 
 such execution would be admitted as a certain trutli. 
 
 "But in judicial inquiries, recourse must often necessarily be had to testimony, not 
 completely answering the description which has been given, or with respect to which the 
 application of that description may not be fully ascertained ; and the scale of testimony 
 descends from that high assurance, which is for all moral purposes equivalent to certainty, 
 through every gradation of inferior testimony, to that which leaves the judgment com- 
 pletely in suspense, and from thence, through all the degrees between the slightest 
 preponderance on the side of incredulity, to the extreme of self-convicted falsehood. 
 
 " If perfect and absolute assurance that a witness completely answered the above 
 description, were in every case to be regarded as an essential preliminary to the credence 
 of his evidence, the incredulity would, in numerous instances, be in opposition to the 
 actual truth of the thing related. Such an incredulity would be the effect and sign of 
 imprudence, in the ordinary intercourse of life ; in the administration of law, it would 
 frequently occasion a failure of right, and consequently merit the appellation of injustice. 
 
 " Testimony therefore will, for either purpose, be in general regarded as accurate and 
 true, unless there is reason, from its own inherent qualities, or from extrinsic circum- 
 stances, for forming an opposite concUision, or at least, for suspending the judgment. 
 
 " If there is an adequate opportunity for arriving at certainty, or obtaining further 
 
SEC. n.] Nature of Human Testimony. 6 
 
 information, respecting the truth of evidence, upon which tlie judgment is divided, the 
 mind will require the satisfaction of which the subject is susceptible, either in coniinna- 
 tion of the fact asserted, or in contradiction of it, and the satisfaction expected will be in 
 proportion to the importance of the object, to the degree of doubt, attending the testimony 
 afforded, and the nature of the opportunities for dispelling, or diminishing it. 
 
 "But if there is no further opportunity of acquiring an absolute knowledge of the 
 truth, consistent with the purpose for which opinion must become the motive of action, 
 the mind must decide according to the extent of his ability, upon the testimony actually 
 before it, comparing the general reason of admittin;;, with the particular reasons for 
 rejecting it, and these, with othei particular reasons in support of it, and forming the 
 judgment according to the due preponderance, without permitting the effect of tl)at pre- 
 ponderance to be destroyed by the inferior reasons, which, previous to the moment of 
 decision, may appear to be opposed to it. 
 
 " This preponderance may admit of degrees, and the justness of the decision will depend 
 upon the degree of preponderance, compared to the degree of importance attached to the 
 decision. ^ 
 
 " Where the rejection of a fact as false, which eventually may be true, might be attended 
 with material detriment, but the reception of it as true, if eventually it might be 
 *717 false, would be *perfectly insignificant, the conduct will not only be influenced by 
 the existence of a slight preponderance in favor of the assertion, but in opposition 
 to a slight, or according to the increasing magnitude of the object, even a great prepon- 
 derance against it ; or reversing the supposition, where the reception as true, of what may 
 be eventually false, would be materially detrimental, but the rejection as false, of what 
 might eventually be true, would be perfectly insignificant ; the abstract degrees of pre- 
 ponderance in support of the fact, wotjld be less regarded than the danger of the conclu- 
 sion. In matters of mere speculation, the decision is immaterial, in matters of practice 
 essentially otherwise. 
 
 " To adopt the conclusion which is supported by the strongest evidence, is in matters 
 of personal concern, the indication of wisdom and prudence; in deciding upon the fate 
 or interest of others, to exert the strongest and most patient efforts of the mind, for the 
 purpose of attaining a similar conclusion, is the indispensable attribute of justice. 
 
 "In the intercourse of life, and in the administration of justice, the general assent to 
 the veracity of positive testimony will be a correct rule of conduct, which in most cases 
 will be confirmed by subsequent observation and experience. But as this general rule is, 
 in a great many particular cases, fallacious, as the application of it is frequently perverted 
 by deception and error, it equally becomes the province of prudence, and of justice, to 
 exert a proper and adequate caution for opposing and counteracting these exceptions, 
 without permitting the excess of caution to defeat the benefit of the rule. 
 
 " In some cases the spirit of caution is adopted by the law itself, which adverting to 
 general causes that are deemed to have a tendency unfavorable to the adequate manifes- 
 tation of truth, prescribes rules of authenticity wholly excluding the admission of less 
 authentic testimony, regulates the number of witnesses which shall be required for the 
 establishment of a disputable fact, or excludes the testimony of those whose interest or 
 wishes may have an influence upon their relation, in opposition to the natural operation 
 of sincerity. By this exclusion truth is often frustrated, as in the general reception of 
 evidence it is often disguised and perverted ; but, in both cases, the general principle of 
 conduct is to provide for the greatest promotion and preservation of it upon the whole. 
 The degrees of precaution vary in different communities, according to the habits of the 
 people, or the spirit and disposition of the individual law. But in all communities there 
 is a limit to the principle of restriction, and where tlftit ends, the principle of precaution 
 must begin, confiding to the discretion and prudence of the judge, the exercise of that 
 discrimination which can be no further regulated by the mandatory provision of the law ; 
 and it may not be unreasonable to observe, that where the latitude of the law is most 
 extensive in the admission of evidence, it becomes requisite that the caution and circum- 
 spection of the judge shall be proportionately extensive in the reception of it; as being 
 the only preservative against those abuses which, in u more rigid system, are prevented 
 under similar circumstances by exclusion. 
 
 " The combining a proper confidence, then, with a proper caution at the time of writing 
 the sentence, is the ground or object of judicial duty. 
 
 •■ In adverting to the description of a witness whose testimony was regarded as equiva- 
 lent to moral certainty, I, in the first place, supposed him to be wholly indifferent to the 
 event ; bat it very frequently occurs that those who are most interested in the event, have 
 the most accurate knowledge of the subject. The testimony of these, it is the general 
 policy of almost every system of jurisprudence to exclude. Others, intimately connected 
 with the interested party and beyond the reach of exclusion, whilst they may be able 
 materially to illustrate the subject of inquiry, cannot but entertain a wish upon the 
 result ; and even those who are originally indifferent, will, in most cases, have an inclina- 
 tion in support of the cause for which they are produced. This is peculiarly the case 
 where the party or his attorney and the witnesses have travelled together to an assize, or 
 are livin" together in an assize town ; or even when the witnesses themselves are together, 
 
 Vol. I. Ve 
 
602 Wiiness, Bias of mind. [ch. x. 
 
 as is commonly the case, for some time previous to the trial ; the cause in which they are 
 to be examined becomes the natural and usual topic of their conversation ; and the sno- 
 cesB of it, generally speaking, cannot be a matter of absolute indifference. Where the 
 ■wishes are anxiously engaged in favor of an event, the opinions are seldom wholly unin- 
 fluenced. A philosopher sees in a stronger form of view the facts which favor his system ; 
 an advocate, ' though avowedly arguing not upon his own impressions, but upon the 
 grounds mo6t favorable to his client, becomes really impressed with the truth of the 
 ' proposition which he is engaged to sustain ; and a witness, under the circumstances 
 *718 above alluded to, sees the truth *through the medium of his wishes. It is the 
 regular habit of the bar to exclude the witnesses from their coQsultations, in order 
 to prevent tbeir testimony being biased by the views which they might receive of the 
 bearings of the cause ; but the other conversations in which they are engaged present 
 that object to their mind. Some practicers, to insure the success of their cause, interro- 
 gate the wittiesses again and again, without any sinister motive, and merely with a wish 
 to assist the accuracy'of the examination. Others, more judicious, having once by care- 
 ful investigation informed themselves of the truth, trust to the natural and unprepared 
 effusion of it.' It is very easyto lay down a general maxim, that a witness ought to 
 divest himself even of involuntary wishes, that he ought; in the manner as well as the 
 substance' of his narrative, to adhere to a succinct, impartial account of the truth ; but 
 Btill the infirmities of human nature will have their operation, and a vidtness, in the short 
 period allotted to his examination, will, in many cases, with a mind unaffected by the 
 slightest intention of a willful deviation from veracity, give an aspect to his relations 
 derived from the previous influence of his wishes upon Ms opinion ; and if this circum- 
 Btance will occur, as in numerous instances it unquestionably will, with respect to persons 
 who are duly sensible of the nature of their obligation, how much more extensive wiU 
 be the influence of similar considerations, with respect to those who are indifferent to it ? 
 The inference which I wish to deduce from the preceding observations, is the propriety of 
 xeceivifig, with adequate circumspection, that part of the testimony which may probably 
 be influenced by such considerations as have been alluded to, without unduly discrediting 
 the substantial parts of the relation, which may be entirely free from any rational objec- 
 tion. I am perfectly aware of the general adoption of the maxim, that if the witness 
 willfully deviates from truth in any particular, the whole credit of his testimony is des- 
 troyed, and shall have occasion more particularly to allude to it ; but the true application 
 of the maxim is only referable to those deviations which result from the actual depravity 
 of the mind/ and does not extend to its involuntary infirmities. 
 
 " To illustrate my general idea by the particular application of.it : Two witnesses may 
 i^ve a correct narrative of the same event, so far as their moral veracity is concerned, yet 
 leave a very different impression upon the minds of their hearers ; the mere manner of 
 narration with respect to looks, tones and gestures, will produce the difference. The 
 friend of an Injured party will describe, vrith feeling and interest, the subject of his 
 complaint ; his previous sentiments give the subject an exaggerated representation to 
 his own mind, which he communicates to his hearers ; the friend of his assailant sees, in 
 a striking point of view, the provocation which to the other had appeared trivial and 
 'insignififcant, and the conduct occasioned by it will appear in very mitigated colors ; 
 and from a mere indifference in the mode of his relation, will produce a precisely oppo- 
 site impression ; while an unconnected bystander will give a representation perfectly 
 accordant with the others in its general substance, but presenting the correct medium 
 between the excess of one and the extenuation of the other. His own narration will 
 receive a degree of vivacity or sluggishness from his constitutional character, but will not 
 be influenced by those eonsideratioits which actuate the others. Wherever, therefore, the 
 judgment and opinion may be involuntarily and unconsciously affected by the habits or 
 relations of the witness, a suspicion may be reasonably entertained of the justness of his 
 narration, so far as the operation of these causes may be imputed to him, without invali- 
 dating the general credit in his veracity. 
 
 " To this observation may be added, the readiness which appears in adducing what is 
 favorable to the party on whose behalf the witness feels an interest, and a reluctance in 
 disclosing what is adverse to him. I admit the duty of a perfect equality and indifference, 
 but I conceive the deviations from that duty are referable, in many cases, to the sources 
 which I have already alluded to. A witness is placed in a situation to which he is utterly 
 unaccustomed ; he cannot possess the presence of mind and the composure of an indiffer- 
 ent spectator, or control at pleasure the tendencies of his disposition ; the difference of his 
 manner, with respect to the two parts of a subject, will properly exercise the discrimina- 
 tion of those who are to decide upon this testimony ; they will endeavor to correct the 
 effect of his partiality, but will not urge the charge of falsehood and prevarication, 
 beyond the designed and willful dereliction of integrity. I trust that I have expressed 
 myself With sufficient distinctness, to prevent its being supposed that I am becoming the 
 advocate for intentional misrepresentation, or deliberate suppression ; I wish only to 
 inculcate the principle of preventing the natural infirmities of the character having a 
 more extensive influence upon the credit of testimony, than they may reasonably be 
 supposed to have upon its truth. 
 
SEC. 11.] GredibilUy of Witness. 603 
 
 *718 *" There are some particular subjects, in which the Suspicion of involuntaiy biaSin a 
 ■witness will be stronger than in others. It will evidently be least in plain matters 
 of fact/as whether a carriage was on the right or left dide of the road. It will be strongest 
 when it relates to manner, as whether the driver, who is himself the witness, was con- 
 ducting himself properly "or otherwise. The evidence of conversation' and expressions 
 ought to be received with very considerable circumspection, so far as anything depends 
 upon its circumstantial accuracy. It very rarely occurs that two persons will relate the 
 same conversation in' the same manner. The particular phraseology of tlie relator will 
 alwSlys blend itself with the relation ; and nothing is more common than for the impres- 
 sion of conversation to be influenced by the previous disposition of the parties to it^or the 
 hearers of it. The accotints which are published in the newspapers, of the proceedings 
 in Parliament or courts of justice on the day preceding, vary considerably from each 
 other, not iperely in the takiAg a 'more or less comprehensive view of particular parts, but 
 also in the substance of the statement relative to the same particulars, and even in the 
 order of the speakers ; and the general correctness of the representation is very seldom 
 assehted to by those who, from havingbeen present, have an opportunity of confirming 
 or contradicting it. 
 
 " Nothing is more natural thab to apply what we hear according to what we 'wish, to 
 construe an expression of civility as an offer of service;- the recommendation of a cus- 
 tomer as a promise for the payment of his account. The Statute of Frauds has interposed 
 its atithority, to prevent the- efifect of this misconiceptlon in several cases particularly enu- 
 merated. The principle of that statute may be judiciously applied to the effect of evidence 
 in several cases without the limit of its provisions, but subject to the mischief against 
 which it was intended as a remedy ; evidence of promises and acknowledgments is almost 
 always given by persons who are in a situation which prevents their being absolutely in- 
 different respecting the effect, and who will, in many cases, uncouStiously give a turn to 
 the conversations which they relate, by no means accordant with the impressions which 
 the speakers intended to convey. To receive the representations of these persons as lit- 
 erally correct, to consider the expressions which they relate as having the same authentic 
 certainty as a written document, will therefore, in many cases, lead to a conclusion repug- 
 nant to the truth, and consequently the attention given to such evidence will, according 
 to the just principles of ratiocination, be much less than that which is due to the plain 
 affirmative or negative of an unequivocal matter of fact. 
 
 " There is one kind of testimony to which the preceding observation emphatically ap- 
 - plies, and which is often subject to the additional imputation of an intentional want of 
 fairness oi conduct. I mean the acknowledgments which are obtained by persons con- 
 nected with the law, on behalf of the parties for whom they are engaged. Such acknowl- 
 edgments only deserve a full attention, when it appears that they were made with perfect 
 freedom, and vrith perfect plainness. The disingenuous artifices which are made use of 
 to entrap a person into expressions to be used in evidence against him — the eagerness to 
 niake a direct and positive application of an ambiguous expression — to strain into a prom- 
 ise or acknowledgment what was never intended to convey that iinpression to the mind — 
 cannot be too narrowly watched or too strongly discountenanced. Nothing is more calcu- 
 ' lated to excite an unfavorable opinion, than to see an attorney stand up to support his 
 falling cause by supplying all deficiencies of proof from some supposed conversation with 
 the adverse party ; and, according' to the apt metaphor commonly applied to the subject, 
 pinning the basket. A reputable attorney will be cautious of engaging in conversation 
 with the adverse party except in the presence of his own professional adviser, and will be 
 Btill more Cautious in avoiding any unfair representation of it ; but, however strongly the 
 general respectability of the profession may inculcate the propriety of this practice, expe- 
 rience evinces that there are many particular exceptions; and the caution which is advis- 
 able with respect to crediting the testimony of persons, whose situation is in some degree, 
 a pledge for the propriety of their conduct, becomes requisite, in a still higher degree, with 
 respect to the inferior officers of the law — a set of persons among whom there are many 
 instances of probity of character and propriety of conduct, but who, in general, find their 
 ' greatest interest in their adroitness to serve the parties by whom they are engaged. It 
 would tend greatly to advance the credit of all evidence given of such acknowledgments, 
 if they were immediately taken down in Writing and communicated to the party making 
 them ; and, in case any dissent was expressed or explanation offered, that should be added 
 to the minute ; in short, it Is demrable that an accurate memorial should be made of the 
 transaction, and that the demeanor of the party, before the impression of the 
 ■*720 memory *could be perverted ; and, what is still more important, before the testi- 
 mony could be influenced by a view of its materiality, derived from the subse- 
 quent aspect of the cause. _ The preceding observations may be extended, in a remarkable 
 degree, to the inferior retainers of police, who generally feel a strong interest in the con- 
 viction of persons charged with criminal offenses, and are apt to suppose their own 
 reputation for assiduity and activity connected with that event. It would conduce to the 
 purity of justice in this respect, if no accounts of the declarations of prisoners to these 
 persons were received upon a trial, which were not stated and reduced into writing upon 
 the examination of the prisoner before the magistrate, and the prisoner's declaration 
 
604 Circumstances to he Considered. [ch. x, 
 
 respecting which, at that time, was also carefully recorded. The magistrates should like- 
 wise be very particular in stating, on the examination, the circumstances and manner in 
 which the declaration was obtained, and not be satisfied with the common-place questions 
 of whether there were any threats or promises; since the legal objection is in terms often 
 carefully avoided, while the spirit and principle of it have their full operation and effect. 
 Courts of justice generally, with great propriety, direct a jury to lay out of their mind 
 any representation of officers of police, respecting the alarm or agitation manifested by a 
 person on being charged with any oflfense, a subject which is often very eagerly presented 
 to them ; correctly observing, that innocence may not be less agitated by an unexpected 
 charge than criminality alarmed by detection. The evidence of persons who depose to 
 their scientific knowledge of any matters in dispute, is, in many cases, subject to be 
 influenced by their wishes in favor of the party adducing them. It has been the obser- 
 vation of a great advocate, now advanced to a high judicial situation, respecting the con- 
 flicting testimony of surveyors produced by the opposite parties, that these persons were 
 only advocates upon oath. The course of practice certainly furnishes many instances of 
 the truth and propriety of the observation ; the proper correction of this inconvenience is 
 to apply the attention rather to the conviction which these advocates produce upon the 
 mind, by the j ustice and consistency of their arguments, than to give their testimony 
 the autliority which is due to an indifferent relation of an obvious matter of fact. , 
 
 " The above observations will sufficiently indicate the principle which I have endeavored 
 to establish, in favor of a distinction between the caution which should be applied in the 
 reception of evidence, from persons who may naturally be supposed to be not indifferent 
 in the event of an inquiry, and the absolute discredit of their testimony. 
 
 " The opportunity of observation, the accuracy with which that, observation has been 
 conducted, and the fidelity of memory with which it is related, are also circumstances 
 which should naturally form a material ingredient in the credit which it should receive. 
 It is very certain, that the mind is often deceived by its impressions upon these subjects; 
 and that upon examination and inquiry, its most firm opinions are found erroneous ; for 
 the truth of which position the most satisfactory test will be afforded, by referring each 
 individual to the evidence of his own experience. The well known anecdote of Sir Walter 
 Raleigh, who suppressed the second volume of his History of the World, upon finding 
 himself deceived in the nature of an occurrence, of which he had supposed that he had an 
 accurate knowledge from his own observation! is a constant lesson as to the propriety of a 
 minute examination into the accuracy which the mind of a person possesses respecting the 
 subject of his relation ; but it is a more important caution upon the necessity of distinguish- 
 ing between misconception and misrepresentation ; and against rejecting the general 
 testimony, as unworthy of reception, from its want of veracity^ when the only imputation 
 to which it is justly subject, is a mistaken conception respecting some incidental particular. 
 The discordancy of witnesses upon the same fact, is therefore very frequently ascribed to 
 a mere difference of observation or memory. The immediate attention of one person being 
 directed to one part of a subject, and another to another, a different impression is left 
 upon their minds ; each by the frame and course of his attention, will have a less lively 
 idea, and a less retentive memory, and consequently will be, in a greater degree, subject 
 to the influence of mistake, with respect to that part of the subject which has had the 
 smaller portion of his regard, than with respect to the other, upon which his mind has 
 been more immediately occupied. A greater or a less degree of attention will also be 
 pointed to the subject itself, without reference to the distinction between the different 
 parts of it, according to the mind being in other respects free or engaged, according to 
 habit, inclination, or an infinite variety of other causes being calculated, or otherwise 
 to create an interest in the occurrence. Hence will result a difference of narrative, which, 
 60 far as it is resolvable into this cause, will rather be an indication of veracity, 
 *731 than *induee a suspicion of falsehood. The distinction between the inconsistency 
 that results from representations having no solid foundation in truth, and wliich 
 therefore accompanies every part of a narrative, not included in the previous arrangement, 
 and the variation which may be ascribed to a difference in the impressions of the mind 
 respecting a real occurrence, often calls for the most j udicious discrimination. But though 
 a discordancy referable to the causes which have been mentioned, is certainly no indica- 
 tion of falsehood, it is sometimes too strongly relied upon as a manifestation of truth, and 
 as demonstrating that there has been no previous concert ; whereas, it is almost impossi- 
 ble for a previous concert to embrace every incidental circumstance, which may be 
 introduced into the examination as a test of veracity. I conceive that this discrepancy 
 is, in general, only a negative quality, leaving the testimony of which it forms a part, to 
 stand or fall by its merits in other particulars. I have heard of a mode sometimes adopted 
 (and the mention of which is not so much calculated to promote the practice, as to defeat 
 it), of giving to a mere fabrication all the circumstances which will insure an apparent 
 veracity, by the consistency of the relation, without g-iving it the appearance of a concerted 
 narrative. It is said, that in order to prove an alibi (a defence the most conclusive, if true, 
 but the most readily counterfeited), several associates of the prisoner meet together under 
 circumstances in which they mean to state the prisoner to have been, the prisoner being 
 represented by another person ; nothing is more easy to fix, in concert, than the time to 
 
SEC. II.] Weight of Testimony^. 605 
 
 which the relation shall refer ; and the actual occurrences at this rehearsal form the basis 
 of the consistency upon the trial. The person of the prisoner, and the date of the event, 
 are the only subjects misrepresented ; and every other circumstance being founded upon 
 truth ; will equally stand the test of examination, as a relation of the most substantial 
 veracity. 
 
 " I have already alluded to circumstances, with respect to which the impression of the 
 mind is materially influenced by the previous disposition, referring particularly to the 
 report of conversations. The observations which were then made will, in many cases, be 
 applicable, where the cause alluded to has not any operation, and where the want of 
 accuracy may result from causes wholly unconnected with any bias upon the testimony ; 
 of which the principal is the negative cause of a want of adequate attention or percep- 
 tion. How generally does it occur that we mistake, at that very instant, the meaning 
 intended to be conveyed, by expressions directed immediately to ourselves, and of how 
 many private animosities is this circumstance the cause? How great, then, is the caution 
 which ought to be applied to the relation of particular expressions, to which the hearers, 
 at the time of their occurrence, were in no wise interested to attend, or which, from their 
 situation, they were liable to misconceive ; and how slightly does an inaccuracy, or dis- 
 cordancy in this particular, affect the general credit of their testimony ? An instance 
 lately occurred of a person who deposed, that he heard a gentleman of high character 
 and respectability, the second in a duel, which proved unhappily fatal, say to his principal, 
 in returning from the field, By God it does me good! This was adduced as the indication 
 of a mind peculiarly malignant, The testimony did not receive credit ; but the gentleman 
 alluded to, upon revolving in his mind what could have been the occasion of it, recollected 
 having said, with reference to the state of his health, and some circumstances connected 
 with the occurrence of the morning — This vnll do me no good. Without aflarming the 
 authenticity of this latter fact, nothing can be more manifest than the probability of 
 the explanation, while, on the other hand, nothing could have been more improbable, 
 than an intentional falsehood on the part of the witness. And if particular expressions 
 are so liable to misconception, in the moment of their occurrence, it is clear that the 
 danger of unintentional misrepresentation is greatly increased by the imperfection of 
 the memory. 
 
 ■' Another subject upon which many instances of mistake occur, both in the course of 
 private experience and of judicial inquiry, is the identity of persons. Mistakes upon this 
 subject not unfrequently occur, with respect to persons with whom we are previously 
 familiar, but with whom we had no immediate communication upon the occasion related. 
 The mere impression of personal resemblance, in those of whom we had no previous 
 knowledge, is evidently much more fallacious. Some years ago a person was tried at the 
 Old Bailey for a robbery, and his person was positively deposed to ; his defense consisted 
 in proving most indisputably, that at the particular time he was upon his trial, at that 
 bar, upon a different charge. There are a great many modern instances of positive and 
 sincere testimony upon criminal charges, with respect to the identity of persons, whoso 
 absence was manifested by the most convincing evidence. Upon these occasions, it 
 *722 appears most judicious to receive the evidence of identity with considerable Mis- 
 trust, unless it is accompanied by circumstances incontestably applying to the 
 particular person who is the object of inquiry already alluded to. 
 
 " According to the difference of habits and characters, the minds of individuals are 
 directed with greater or less attention to subjects of different kinds, and their testimony 
 respecting these is susceptible of correspondent variations of accuracy ; and therefore 
 minuteness of recollection, upon one particular of a transaction, is not repugnant to a 
 considerable uncertainty in another. In sume, a particular distinctness with respect to 
 dates is contrasted by an unusual forgetfulness with respect to names or persons. Others, 
 again, have a very imperfect memory with respect to all these, but a minute recollection 
 of circumstances. However fair it may be in an advocate to take advantage of the varia- 
 tions resulting from the particular character of the memory, the interests of truth require 
 the judge to fix the effects of these discrepancies at their proper value, to distinguish 
 between the accuracy and inaccuracy of the different parts of the narration, and to pre- 
 vent an inaccuracy in circumstances being mistaken for a dereliction of veracity in the 
 substance. .: 
 
 " It is the property of the memory, like the attention, to be in general more immediately 
 engaged by particular parts of a subject, which present themselves naturally and sponta- 
 neously, whilst others are only brought into recollection by the effect of exertion, or may 
 lie wholly dormant. It very seldom happens that all the circumstances of a transaction 
 occur, with equal readiness, to the mind ; and, therefore, the omitting to mention a 
 circumstance in the first account, is by no means a convincing argmnent of its intentional 
 suppression. In general, a witness comes into a court with the memory strongly bent 
 upon those parts of a cause which have occurred to him as material. The revival of 
 other circumstances is the result of a particular examination respecting them ; and, 
 according to the usual operation of the mind, they will unfold themselves gradually at 
 first, with indistinctness, and afterwards with precision, unless this natural progress is 
 prevented by an intimidating and acrimonious course of inquiry. 
 
606 Habits of mind, ntemotyy accuracy. [ch. x. 
 
 " It is to this ground of accuracy of observation and recollection,. that the preference of 
 positive to negative evidence is principally to be referred; -for it is much more probable, 
 that a person may not ha^e observed an. occurrence which, actually did, take place, or 
 haying observed it, may not have , recollected it,, than tha.t another should imagine cir- 
 cumstances vphich had no foundation in existence ; and it is only to this kind of negative, 
 which is accounted for by the want, of .observation or recollection, that the preference 
 properly applies;, for, if the ground of denying the truth of, an assertion is an actual 
 positive observation in opposition to it, this, testimony is, tp all. rational purposes, as 
 much affirmative as that which it is opposed to. , Thus, if a witness alleges a person to 
 have been drunk at a ^ven time, and another, declares that he was not drunk ; it is an 
 affirmative declaration that.he was sober, and the. weight of credit, must be decided, 
 according to other circumstances. A distinct account from the witness asserting the 
 party not to be drunk, that he had been in a coach with him all night, and for several 
 hours in the morning, up to the time in question, and, that, he had not tasted any intoxi- 
 eating liquor, would, he more convin,cing than the general declaration of a state of drunks 
 enness. With respect to the permanent nature of a subject, negative evidenpe is as 
 strong as affirmative, if the nature of the subject is such that the former is equally free 
 from the suspicion of error with the latter. A person swearing that there is no bridge 
 over the Thames, between London and Blackfriars, would be entitled to as mu<;h atteijtioij, 
 as another swearing that there is a bridge between London and Westminster ;■ and the 
 same observation, which, is so palpable with .respect to the instances , alluded to, ought 
 equally to prevail in other cases referable to the same principle. ,, , 
 
 "It sometimes .occurs, that, a witness, having a given fact proposed to him, will not 
 swear positively to the non-existence of it; when the fact is of such a nature, that if true^ 
 it cannot be supposed but that he must have known and lepollected it. Thus, if a wjtr 
 ness 'was asked whether, since the .commencement of the i trial, he had told a person, 
 present that he was come to perjure himself; there can be no doubt but that he can 
 with sincerity only, answer yes,, or no ; but there are many cases in which it is equally 
 evident, to those, capable of , forming an adequate judgment, that the recollection of the 
 ejdstence, or non-existence of a given fact, must be perfectly distinct; but in which 
 the witness, from a superabundance of caution, expresses himself with doubt i and hesi- 
 tation,; and in fact, I observe this, kind of. hesitation to be very general, in persons of 
 confined habits of thinking, when examined upon such topics. They are then plied with, 
 a set of questions about, If it had Men ao, mu3t you not have recollected, &o., &o,, 
 *723 asked in a manner *whioh increases their embarrassment ; but the answer to 
 which is not so much an act of testimony as of i;easoning. Wiere proof is actually 
 given of a fact, that the witness could not but know and recollect, his expressing himself 
 in terms of doubt and uncertainty, is to be regarded as an act of willful misrepresentation; 
 on the other hand, if no such proof is given, and the testimony is, in other respects, 
 unsuspicious, and the witness is. not a person who, from his situation and understanding, 
 cannot but be aware of the power of giving a direct,afB™iative,.or negative'; it shoul4 
 be taken as the result of his testimony, that the fact did not exist ; or at all events, it 
 should not be taken for granted that .it did, from ^ witness declaring that, he could not 
 swear that it was not so.- 
 
 " Evidence of reasoning, is also referable to the same general topic. 4- witness's testi- 
 mony, of a fact may be: positive, though the reason he expresses for it is false or absurd. 
 I, have heard a witness, when cross-examined as to his reason for knovring clothes which, 
 had been stolen from him, refer to a matter of general description, which,, of course, was 
 followed up with Had vio other person ever, clotlies of that desc^ption f The judge, in his, 
 observations to the jury, observed, that a witness, in assigning, reasons for facts of which 
 he must have a positive knowledge, as the identity of his own clothes, often gave the 
 worst, reason that could be imagined; but the absurdity of the reason ascribed did not 
 diminish the weight of the testimony of actual knowledge. But where the evidence neces- 
 sarily resolves itself into matter of reasoning, the case is materially different, for there the fail- 
 ure of the reason prevents the subsistence of tlie conclusion which is founded upon it. To 
 instanoe.a case which occurred in tjiesame court with the prepeding, a witness swore that a 
 person examined outhe other side was not fit.to be believed upon his path, and being asked 
 his reason, said, that he had never made a good fence since he came to his farm. 
 
 "Where a witness is examined as to his reason, intention or opinion upon some past 
 occasion, it will often happen^that he states suph reason as appears to him most plausible 
 at the tim.e of his examination- If the reason inquired for relates to some positive fact 
 out of the lOordinary course of occurrences, the reason and motive can be, in most cases, 
 be remembered with as much distinctness and accuracy as the fact ; but I haye known 
 persons interrogated with some ^severity, as to their reason for npt doing something, to 
 which the nature of the thing supplies the answer, that no adequate motive occurred to 
 induce them actually to do it ; bpt the witness, perplexed and confused by the question, 
 will, in an indistinct and hesitating manner, give some answer which induces an unfavor- 
 able impression with respect to his veracity. This observation occurred to me in hearing 
 a trial, where a witness who had made a shaft for the purpose of getting brine under the 
 land of the defendant, made certain observations and experiments, to ascertain that he 
 
SEC. 
 
 ii,J Where Witness gives a JReasOH. 607 
 
 did not carry it under the lan4 of the plaintiff, and these ohservations heing such as, if 
 true, were, from the nature of the gubjeot.conclusivewitb respect tothe inference, deduced; 
 frpm them, he was interrogajted as to his reasons for not doing various other things sug^ 
 gested to him at tlie trial. Sometimes an intention is inquired into, respecting an, 
 occurrence at a distant, period, upon which, in all proba.bilitj;, thgre jiid not exist 
 any intention at all ; as where a person, who had forty years before engaged her son to serve 
 another for a given timje to learn a trade, was asked, wh;ether she did not intend; that he 
 should be an apprentice? To this, being as usual, desirous, of getting to an end of her 
 examination, she answered, yea; whereas, it was highly improbable that she shoujd have 
 any intention with respect to those distinctions between service and apprenticeship, w:hich 
 have been introduced into the settlement law ; instead of merely designing that there 
 should be a service and instruction upon the terms agreed upoUj according to which terms, 
 her son would have acquired a settlement by service, yetftom this answer, yes, i, bench 
 of justices was induced to decide the contract to be a defective apprenticeship.; 
 
 " And here it may be proper to advert to a distinction, which has often occurred to me, 
 and was referable to the preceding case, between the words used by, and proceeding from, 
 the witness as his own, and his giving an answer of yes or rao to the question proposed to 
 him ; the former being the indication of his. own impressions and recollection upon the 
 subject of inquiry, the latter being the result, the adoption or rejection of an extrinBic sugn 
 gestion. It is, therefore, an accurate representation of the testimony of a witness to state 
 Slat he had given a narrative in language apparently his own, when he had merely given, 
 an affirmative or negative answer to the language of another. Such a conversion of 
 expressions can only be an adequate delineation of the testimony, upon the supposition 
 of the witness having distinctly and fully comprehended, the language presented 
 *734 to him, and of liis assent or dissent to it, being a perfect representation of *tha 
 ideas previously existing in hlB.,mind. There is a peculiar danger of this kind of 
 perversion, when a summary and ex parte representation, taken at one time, is introduced 
 in evidence at another. 
 
 " The preceding observations have been chiefly referable to testimony upon mere mat- 
 ters of fact, but these are often blended with matters of .judgmen,t; and the latter are 
 themselves, in, many cases, the sole object of examination. The adequacy of the judgment 
 must therefor^ be assented tQ before any confidence can be placed in the result of it ; and 
 this confidence will depend upon the apparent or acknowledged talent of the witness, 
 and his opportunity of forming an adequate opinion, which Jatteo; circumstance will be 
 materially influenced by the nature of the subject to, which it is applied. In general, 
 every person exercising an occupation, is supposed to be conversant, with the subject of itj 
 and his opinion is abided by, unless contradicted by others entitled to an equal confidence ; 
 or unless there are intrinsic circumstances for disputing it ; cuUibet in wrte,sua credenvlmii eat) 
 
 " But upon the conflict of testimony, a judgment is often to be pronounced. according to 
 the apparent relative competence of the respective witnesses ; tMs judgment ought not 
 to be hastily referred to the fluency of their expressions, or the plausibility of their maur 
 ner ; since a patient attention will often perceive, that the most accurate knowledge is not 
 always accompanied by the greatest facility of communicatingit.. The opportunity which 
 results from the actual observation of a particular subject, i? evidently; more to be relied 
 upon, supposing the judgment to be equal, than that which is founded upon relation, an4 
 much more than that which is deferable to mere hypothesis. A consistency with undis- 
 puted facts is one of the most advantageous tests of the confidence which ought to be 
 reposed in the decisions of the judgment, but it is often dangerous for those who are tq 
 decide, acting upon their own Inadequate conceptions, hastily to deduce a charge of incon- 
 sistency, in opposition to the opinions of technical experienqe. Wherever such an 
 inconsistency is supposed to exist, it should be fully pointed out, for the purpose of receiv- 
 ing such elucidation as the witness may be able to afford, without reservingiit fpr matter 
 of subsequent observation, which may probably be erroneous. 
 
 "The testimony of a witness, with respect to subjects upon which he, has a peculiar 
 knowledge, is sometimes received with satisfaction on account of his deposing to the 
 existence of distinctions, or criteria, which are not perceptible to tho?e by whom he is 
 examined; and which, because they cannot discern, they, will not suppose to exist.; but 
 this is an improper standard qf judgment, for eyery person can, wjth instantaneous facility, 
 discover the casual variations in subjects with which he is habitually familiar, and these 
 in circumstances so minute that they would not be susceptible of communication to a com: 
 mon observer. The Ar,ab or Indiwn will trace,; through the forest or desert, the footsteps 
 of which the members of cultivated society cannot discern, the slightest injpression. The 
 mariner will describe the particulars of a vessel, which to the passenger appears a speck 
 in the horizon ; the lawyer and the physician, in the obj ects of their respective professions ; 
 the botanist in his plants; the chemist in the contents of his laboratory,, will perceive a 
 materiality in distinctions, of which, to those who are unaccustomed to their different pur- 
 suits, they cannot convey an intelligible description. The mind in w-eighing the capacity 
 of an expert, with relation to the subiect of his art, should not decide upon, the apparent 
 uncertainty of the new and adventitious object of its attention, hut upon comparison with 
 its own facility of observation, upon subjects with which it is niost, familiarly conversant. 
 
608 Matters of Opinion and Skill. [ch. x. 
 
 There are few subjects in which, independently of experience, or the conclusions of precise 
 and accurate reasoning, there would be a greater apprehension of uncertainty, or a stronger 
 suspicion of guess and conjecture, than the art of deciphering, yet it is an art which (at 
 least in its lowest application, of a substitution of letters), depends upon principles as cer- 
 tain, and almost as easy of communication, as the lowest rules of arithmetic. The 
 weakness of those who circumscribe the bounds of possibility and veracity by the limits of 
 their own perception, is often illustrated by applying the fable of the horse, who was torn 
 to pieces, for asserting in the torrid zone, that in other climates the men were white, and 
 that passengers could travel over the surface of rivers." 
 
 There are also many cases in which witnesses speak from judgment and opinion, with- 
 out reference to any technical knowledge ; such, for instance, is evidence for character, 
 and all other testimony amounting to a general conclusion upon particular facts ; when 
 this conclusion is accompanied by a narrative of facts from the same witness, the suflBciency 
 of the conclusion is a matter perfectly distinct from the reality of the facts ; an 
 *735 advocate who would impeach the *veracity of the facts, makes but little progress, 
 by showing the weakness of the conclusion — and on the other hand, the advocate 
 who relies upon the facts, is not precluded from disputing the conclusion. This may be 
 illustrated by the following case, which I have known to occur in practice : A person 
 deposed to having entered into a service under circumstances which, in point of law, would 
 amount to a general hiring, which is equivalent to a hiring for a year; hut she also 
 declared that she was not hired at all ; the latter part of her testimony was evidently no 
 more than the judgment of an ignorant witness, as to the legal import of the term hiring, 
 to which she attached the idea of an engagement made in a certain manner, or for a cer- 
 tain time expressly mentioned; but it was contended, and successfully, in a court of 
 quarter sessions, that it was impossible to pronounce in favor of the acquisition of a settle, 
 ment upon this evidence, as the witness, upon whose testimony the whole depended, 
 declared that there was not any hiring, and those who produced her and relied upon her 
 evidence were bound to take the whole together. 
 
 In deciding upon the truth of evidence, much stress is laid upon the inherent proba- 
 bility of it, a criterion which, within its proper limits, is attended with great utility, but 
 which like all other general criteria, may be carried too far ; for where a testimony is 
 direct and positive, where the circumstances to which it relates are palpable and not 
 calculated to excite delusion, vrhere the witness had a perfect opportunity of knowledge, 
 ■where he has no motive to misrepresent, and still further, where the representation mili- 
 tates against the usual motives of conduct ; where several witnesses of unimpeached 
 integrity, free from all suspicion of collusion, speaking from detached and uncommuni- 
 cat^d knowledge, concur in the attestation ; where the fact contested concurs mth other 
 undisputed phenomena, not reconcilable with the supposition of its falsehood ; the pre- 
 vious and insulated probability of the fact asserted, is a less powerful motive for the 
 decision, than the positive conviction resulting from the force of the testimony ; the rejec- 
 tion of which would be founded upon a much higher degree of improbability than that 
 which it professes to correct.. Such I conceive to be the summary of the argument, which 
 is usually applied to a subject of a much superior nature to that of my present investi- 
 gation, but the principles of which may be properly adapted to inferior objects of ordinary 
 disputation. It is seldom that a case will occur, in which the improbability of falsehood 
 will advance to that high degree of certainty which is involved in the preceding enume- 
 ration, but each of the circumstances alluded to Will have their influence in forming a 
 decision between the abstract improbability of the fact related, and the particular 
 improbability of the immediate relation under all its circumstances being false. I have 
 witnessed several cases which called for the practical application of this distinction. The 
 one which at present occurs to me, is an action against a man for sowing the field of 
 another with dock seeds ; a fact which was positively sworn to by a casual observer, and 
 confirmed, amongst other circumstances, by the growth of the docks in the course which 
 he had taken ; it was contended to be highly improbable that any man should be guilty of 
 such malignant conduct ; but it was answered that it was much more improbable that the 
 witness, who had no connection with the one party, or animosity against the other, should 
 gratuitously involve himself in perjury, in attesting the fact which was so corroborated. 
 
 A topic connected with the preceding observations, which relate to the subject of the 
 testimony, as existing in the mind of the witness, and intended to be the object of his 
 representation, is the correctness of the language used by the witness in conveying 
 his sentiments, and of his conception of the question proposed to him. The degree of 
 accuracy with which the language represents the sentiments, is a proper subject of inquiry 
 before the terms made Use of are construed with too little precision ; and the incorrectness 
 of language, or conception, should be carefully distinguished from misrepresentation or 
 evasion ; an observation which seems to be unnecessary from its obvious propriety, and 
 the little danger which may be supposed to exist of a contrary practice. But the fact is 
 otherwise, and a mutual misconception, either real or affected, is frequently the ground of 
 cavil on the other side, or the screen for equivocation on the other. When the latter is 
 the fact, it is very seldom successful ; the equivocation iskept up forasecondortwo, and the 
 exposure of it very properly throws a general discredit on the whole testimony of the wit- 
 
BEc. iLJ Consistency of Statement, ' 609 
 
 nesa ; butthe want of a patient and temperate attention may often permit this imputation 
 to fall where it is not justly merited, and where a careful examination of the meaning 
 intended to be expressed would completely remove it. What has been before observed, 
 with respect to language as being the subject, may, in-some degree, be applied to 
 *726 it as the medium of *evidence ; but the error resulting from its in accuracy or mis- 
 conception is, from the difference of the occasion, much more easily susceptible of 
 correction. Peculiar modes of speech, either personal or provincial, metaphorical language, 
 a greater or smaller latitude in the acceptance of terms, the mutual substitution of definite 
 and indefinite expressions, are some of the causes which contribute to the uncertainty at 
 present under consideration. In some parts of the country it is, with persons in the 
 inferior station of life, an ordinary mode of speech to say that they believe a fact, of which 
 they have the most positive assurance. When this expression slips out on a judicial 
 examination, we commonly hear the question. Believe, are you not aure of it ? and an 
 answer in the affirmative is followed up, with, then why do you say you believe? A ques- 
 tion very proper, when there is a suspicion that the terms of the answer were intentionally 
 evasive ; but the corrective is frequently applied, when, in fact, the cause of complaint 
 does not exist. Sometimifs the mode of phraseology, which gives an exaggerated or 
 extenuated representation of a subject, without any consciousness of an intention to deceive, 
 originates from those views of a subject which are connected with a disposition respecting 
 the event, and which liave already been the subject of observation. 
 
 The same general observation, which has already been so often traced in its different 
 applications, of a distinction between inaccuracy and misrepresentation, applies to the 
 conviction subsisting in the mind from the representation of others, wliere the fact ia 
 regarded as certain, and ia represented as existing, although the source of the witness's 
 knowledge prevents its being a matter of legitimate evidence. I conceive that this inac- 
 curacy often escapes undetected ; the witness speaking in general terms of the existence 
 of the fact, and there being no suspicion of his doing so, otherwise than from his own 
 observation. Some facts we speiik of as assuredly true without objection, of which our 
 knowledge is almost necessarily derived from reputation, as for instance, the death of ai 
 person ; the supposed notoriety of some other facts, induces us to think and speak of them 
 with the same degree of assurance as of this, which, though an infraction of the legal 
 rules of evidence, is no transgression of the moral obligation of veracity, although it is 
 sometimes represented as such, in the course of a captious cross-examination. 
 
 Tlie manner and deportment of witnesses is very commonly a principal ground of 
 assent .to, or dissent from their testimony ; and is doubtless a very natural indication of 
 the existence or the want of sincerity. That the disposition of the witness will have an 
 influence on his manner, is undisputed ; the adequate observation of if is, however, a 
 matter requiring the most skillful and judicious discernment ; and the detection of 
 affected plausibility, and the assistance of constitutional timidity, are objects which 
 respectively import, in an eminent degree, the proper administration of justice. A per- 
 fect judgment of the causes of a person's demeanor upon a particular occasion, can only 
 be formed by those who have a previous knowledge of his general habits and character, 
 and, in this respect, an intelligent jury is of great advantage; since being assembled 
 from different parts of the country, some of them will, in most cases, have at least a 
 general knowledge of the witnesses who appear before them. It would be greatly 
 beyond the limits of my power to trace even a slight outline of this extensive subject ; 
 but a few detached observations, founded upon my impressions respecting it, may not be 
 wholly irrelevant. In deciding upon the demeanor of a witness, considerable allowance 
 is to be made for the unaccustomed situation in which he is placed, and the impressions 
 which it may be calculated to make upon his mind. To some persons this public appear- 
 ance is a matter of indifference, but by many it is regarded with an apprehension, 
 productive of embarrassment and agitation, which to unskillful observers, may appear 
 the result of insincerity. This embarrassment will sometimes attach itself in a peculiar 
 degree, to those who are accustomed to appear before the public in a different situation, 
 and who are therefore habitually anxious respecting the impression which they may 
 induce. It is an anecdote of Garrick, that when examined as a witness respecting the 
 nature of a free benefit, he was incapable of giving an intelligible testimony. In decid- 
 ing upon the demeanor of witnesses, much attention is due to the mode of interrogation, 
 and the popular opinion respecting the person who is engaged in it. An asperity in the 
 particular conduct of the counsel or the judge, or even the reputaiion of it, with respect to 
 the former, will necessarily produce an effect upon the sensations and deportment of the 
 witness ; and an apprehension of the ridicule which frequently aflixes itself permanently 
 to the character, is often a predominant sensation of the witness upon his examination. 
 Good sense when fully exercised, will correct these apprehensions, and satisfy the 
 *727 witness that violence and ridicule will be ineffectual, when opposed to the plain *and 
 unaffected language of trutli ; but the dictates of good sense are often an insulEcient 
 preservative against constitutional timidity. 
 
 A resolution to appear undaunted, and repel the expected aggression of counsel by 
 insolence, a foolish inclination to make a theatrical exhibition of wit and humor, exciting 
 the horse-laugh of the by-standers, a moroseness and sullenness of temper, will give an 
 Vol. I. 11 
 
610 Mode of speech and Manner of witnesses. [ch. x, 
 
 nnfavorable aspect to the manner of a -witness, when there is no intentional want of vera- 
 city in the matter. The real absurdity of a witness's demeanor or mode of representa- 
 tion, will often diminish the proper impression of the facts for which it is necessary to 
 resort to his testimony, and*particularly in cases where there is a latitude of discretion, as 
 in questions of damages; the judgment is often practically biased,- by the sentiment of 
 ridicule being a test of truth. A due regard to the principles of justice will, however, 
 prevent the fair demands of a party from being affected by the sullenness or absurdity of 
 the witnesses whom he is necessitated to adduce in support of it ; and will lead the mind 
 to a studious discrimination, between the fact which is the subject of inquiry, and the 
 accidental circumstances which may accompany the relation of it. 
 
 " The judgment upon a witness's manner is not unfrequently framed by a contrast 
 between a cool and steady narration, and » fluttering hesitation; this judgment may, 
 however, often be fallacious, for a witness who has prepared his story, may have suffi- 
 ciently arranged the particulars of it in his mind, while another who has an opportunity of 
 contradicting it if false, is surprised and confounded by the unexpected statement. In a case 
 where I had an opportunity of knowing the real facts, I have seen a witness give a steady 
 and collected representation of a supposed conversation in a perfectly simple and unaf- 
 fected manner ; the opposite witness, when suddenly interrogated as to the existence of such 
 a conversation, began, with, Nat that I recollect, I do not helism it upon my honor, and a great 
 many other exclamations, in such a confused, suspicious manner, that even those who, 
 from their private knowledge, had the most indisputable confidence of the veracity with 
 which he told them upon coming out of court, that there was not a syllable of truth in 
 the conversation related, perfectly acquiesced in the propriety of a decision founded upon 
 the opinion of his falsehood. 
 
 " That testimony is very open to suspicion, which is given by a person who is evidently 
 meditating upon the materiality and tendency of uis answer, before he will let it be 
 given ; or, on the other hand, who bolts out with precipitancy before he hears the ques- 
 tion, an answer indicating a catechised preparation ; the effect of either of these circum- 
 stances singly, is greatly increased by their combination in different parts of the same 
 testimony. A Welch witness, who intends to. give unfair testimony, always affects an 
 ignorance of the ErigUah language ; in consequence of which, the effect of cross-examina- 
 tion is not only weakened by the intervention of an interpreter, but the witness has time 
 to collect and prepare his answers. But even that previous study of an answer, which 
 has been mentioned, will have a different effect, according to the character, and situation, 
 and habits of the person who is examined. I have in an earlier part of this discussion, taken 
 notice of circumstances calculated to influence the disposition, and which, though by no 
 means justifying prevarication in any case, diminish the suspicion of a want of substantial 
 veracity, which results from a want of propriety in incidental particulars. The suspicion 
 of fabrication rises highest when the witness is one of those inferior retainers of the law, 
 who are commonly attendant upon courts of j udicature, who have a cunning acuteness in 
 the observation of its proceedings, and who, from their occupation, are frequently in the 
 habit of swearing to facts, in their own nature liable to misrepresentation, and placed 
 beyond the reach of detection or contradiction. 
 
 " The general character of witnesses is also a circumstance which has naturally a con- 
 siderable influence upon the credit of their testimony ; and we shall have occasion to 
 mention in a subsequent section, certain oases in which the testimony of persons convicted 
 of particular offenses is absolutely excluded, upon a legal presumption that those who 
 have been capable of such acts, will not be influenced by any moral or religious obliga- 
 tion to adhere to the dictates of truth, when any circumstance may occur to influence 
 their minds in opposition to it. I think it is by no means desirable to extend this princi- 
 ple of exclusion, for, in general cases, the rejection of any person as a witness does not 
 operate to the prejudice of himself, but of the public or private interests which may be 
 concerned in the disclosure of the facts of which he has a knowledge ; and, even in the 
 most de]iraved members of society, the natural influence of truth, and the temporal 
 risks of perjury will be a security against the commission of gratuitous falsehood. 
 *728 But *wherever there is reasonable ground to suppose a bias in the mind with 
 respect to the effect of the testimony, a previous criminality of conduct will very 
 justly excite suspicions of its veracity ; and the mind will naturally refuse its assent to 
 declarations made by those whose disposition in favor of the event cannot be supposed 
 to be counteracted by a superior sense of obligation. I have already observed, that to 
 assent to a given proposition, we require a preponderance of testimony in support of it ; 
 in questions, therefore, respecting the credit of a witness, the want of assent is not founded 
 upon an assurance that his testimony is false, but from the want of an adequate assurance 
 that it is true. Where it is distinctly ascertained that the witness is indifferent with re- 
 spect to the event, or where it appears that his wishes would naturally incline in opposi- 
 tion to his testimony, the general inclination to veracity might be, in most cases, a 
 suiflcient assurance of the facts deposed to by n person oven of the most exceptionable 
 character ; but the testimony will be properly open to suspicion, not only when a person 
 of this description distinctly appears to have a collateral motive for desiring a decision in 
 support of his testimony, but also whenever there is not a sufficient reason for presuming 
 
SEC. II.] Manner and Appearance of Witness. 611 
 
 the contrary ; for the inducements which may operate upon a mind susceptible of corrupt 
 influence cannot easily be detected, although they may actually exist. It is the want of 
 an adequate assurance that the testimony is true, which very properly occasions a great 
 degree of caution to be applied to the testimony of accomplices in criminal prosecutions ; 
 and induces courts and juries to disregard such testimony, except so far as it is confirmed 
 by circumstances affecting the parties accused, deposed to by witnesses of irreproachable 
 character. There is not in these cases a positive suspicion, arising from the nature of the ' 
 evidence itself, that it is actually false; but there is a manifest want of those principles 
 of duty and obligation, which are the strongest assurance of its being true; the actual 
 motive is almost always in favor of truth, if it is clear that- the witness had some com- 
 panion in his offense ; and it has not, in any instance, occurred to me to suspect that evi-"; 
 dence of this description, which I have had an opportunity of hearing, was fabricated;' 
 but there is no doubt that it frequently might be so, if a less jealous caution was exer- 
 cised in its reception. 
 
 " It is an established rule, that witnesses examined with a view to discredit the testi- 
 mony of others, cannot be admitted to depose to particular facts of criminality, but can 
 only express their general opinion, whether the party is or is not entitled to be believed 
 upon his oath ; but the other side, who, to support the testimony, may inquire what are 
 the reasons of disbelief, which sometimes, as in a case above adverted to, are ridiculous 
 enough. If it is declined to inquire into these reasons, there is pretty considerable ground 
 to presume a consciousness that the opinion is founded upon adequate motives, i have 
 heard witnesses asked whether they had ever known the persons, against whose veracity 
 they depose, give false evidence in a court of justice ; and, upon their answering in the- 
 negative, it was intimated to the jury that the testimony to their discredit was absolutely 
 frivolous ; whereas, if the question had been, what were the reasons upon which the dis- 
 credit was founded, a fraudulent conduct might have been shown, which indicated the 
 want of moral and religious principle, and consequently affected the strongest ground of 
 reliance upon testimony. When witnesses speak to the character of others, not only their 
 own character, but their ability and opportunity to form an adequate judgment, are cir- 
 cumstances very proper to be taken into consideration. 
 
 " It is a rule of law, that witnesses cannot be asked any questions which tend to subject* 
 themselves to punishment, or, as it is usually expressed, to criminate themselves ; but 
 whether they may be asked if they have already received a punishment which does not 
 disqualify their testimony, or whether they may be interrogated as to any circumstances 
 of improper conduct, not immediately connected with the subject of their examination ; 
 and also, whether their refusal to answer inquiries upon these subjects can be observed 
 upon as afifecting the credit of their testimony, are questions of great importance, upon 
 which there is a very considerable difference of opinion. Some judges are very strongly 
 of opinion that these inquiries ought not to be allowed ; hut it has been understood to be 
 the more prevalent opinion of the bench, as it certainly is vei« generally the opinion of 
 the profession, that they are admissible and proper ; and this latter opinion is clearly sup- ' 
 ported by the course of practice which has actually prevailed. Mr. Peake, in the second 
 edition of his Law of Elmdence, states the arguments in support of these opposite opin- 
 ions in a very fair and perspicuous manner ; and the right and propriety of the examination 
 alluded to are maintained with considerable ability in a pamphlet entitled. An Argument 
 in favor of the Rights of Gross-Examination. I have at all times felt a very con- 
 *729 siderable difficulty in the *consideration of this subject ; but as a knowledge of a 
 witness's habits and pursuits, his conduct and disposition, will naturally influence 
 the regard which ispaid to his assertions ; I think that the preponderance of argument is 
 in favor of the opinion, that an examination, by which these may be ascertained, cannot 
 upon any general principldl, be suppressed as irrelevant or improper; and that those 
 arguments respecting a witness's conduct ought not to be rejected, which may tend to 
 determine the regard thatthe mind, without reference to technical rules, or legal consid- 
 erations, would pay to his testimony. At the same time, I think that this is a liberty 
 which, like all others, will be best secured by a cautious vigilance in repressing its abuse, 
 by a refusal of advocates to adopt the passions and prejudices of their clients, and to injure 
 a witness by reproaches and insinuations that cannot reasonably be expected to influence 
 the fair decision of the cause ; and by the court showing a marked discountenance to the 
 adoption of a different line of conduct, calculated only to occasion an unnecessary pain 
 and injury to the witness, without promoting the rights or interests of the party. 
 
 " The situation of a witness in life is also a circumstance which frequently influences 
 the regard that is paid to his testimony, especially with respect to matters of judgment 
 and observation ; and even with respect to mere veracity, it is not wholly indifferent ; for 
 although, in the abstract, the testimony of every person is to be regarded as true, and the 
 sense of obligation may be equally strong in every condition of society, the temporal dis- 
 advantages arising from the detection of falsehood or prevarication, independent of the 
 terrors of legal punishment, will frequently depend upon, or be connected with a person's 
 rank and station ; and therefore all considerations of credit, connected with the evidence 
 itself, will be and constantly are materially influenced by this circumstance. The effect 
 of a bias i n favor of the event of a cause, resulting from the situation of a witness, will be 
 
612 Discredit of Witnesses. [ch. x. 
 
 more or less strong in proportion to his being more or less subject to temptation ; the 
 comparison between the relation itself and its probability will be made with greater 
 minuteness, in proportion to the stake in society which is engaged in support of its veracity. 
 The influence of situation is most strong in cases of conflicting testimony ; for supposing 
 other circumstances to be equal in every respect, there is no doubt bnt that a considerable 
 diversity of situation would have considerable influence in directing the balance of credit ; 
 and to illustrate the position by an extreme instance, few persons would hesitate in regard- 
 ing the narrative of a clergyman on the one side, with superior credit to that of a bailiff'B 
 follower on the other. 
 
 " The number of witnesses, and their concurrence in support of a given assertion, is also 
 a subject of material importance in deciding upon the credit of their testimony ; for the 
 improbability of two witnesses concerned in the same falsehood, or being influenced by 
 the same mistake, is much less than that of the falsehood or mistake of either of them 
 individually; and the improbability increases in proportion with the number. But in the 
 contrasting of contradictory testimony, the mere consideration of number is held subordi- 
 nate to that of the indications of individual veracity, and, the maxim that ponderantur, 
 non numerantur testes, is of very frequent practical application. Other circumstances 
 being equal, the preponderance of numbers is certainly entitled to the advantage, and 
 sometimes this preponderance will be sufiiciently great to counterbalance an apparent 
 superiority in other circumstances on the opposite side ; and although nothing can be 
 more remote from the subject in discussion than the application of the strict rules of 
 mathematical equality or proportion, a fair attention to the principles of those rules is 
 often of considerable importance. The degree of influence or indifference of the respective 
 witnesses, their apparent veracity, their demeanor, their character, their situation, the 
 probability of their relation, are circumstances, all of which are to be carefully and atten- 
 tively brought into the acount. The opportunity of confederacy, or the want of such 
 opportunity, is a most important consideration in determining the effect of numbers. The 
 concurrence in speaking of one observation of one detached fact, is of much inferior value 
 to the concurrence of persons speaking from detached and separate observations, of differ- 
 ent facts leading to the same conclusion. I have already had occasion to advert to the 
 <Sccordauce or variation of witnesses speaking of the same occurrence, to the difference 
 between that inconsistency which essentially fastens itself upon the substance of the rela- 
 tion, and that which may be fairly referable to different degrees of accuracy or minute- 
 ness, in the observation or memory of facts which have actually occurred ; and to the unity 
 and accordance, which being too strict and circumstantial, are inconsistent with that 
 diversity of observation and expression that naturally occurs in the unprepared account 
 of a real transaction, and afford an indication of concert and design. It is not an 
 *730 unfrequent observation, that if one of *the witnesses in support of a cause is not 
 entitled to be credited, the discredit attaches to the cause, and extends to other 
 witnesses apparently uneieeptionable. This kind of objection is, I think, sometimes 
 applied too generally, and without using that caution and discrimination which the princi- 
 ple of it essentially requires. In case the impeachment of the veracity of a particular wit- 
 ness results from circumstances that indicate management and fabrication in the cause 
 itself; in case of perjury of the witness implies the subornation of the party, the whole 
 system my be regarded as tainted and corrupt, unless there are any, in other respects, 
 superior reasons for believing the contrary ; and the mere absence of circumstances of sus- 
 picion, directly affecting the other witnesses, will not destroy the presumption of falsity 
 that has attached itself to the cause. But if the imputation upon the particular witness 
 is merely personal ; if it results from considerations foreign to the immediate cause ; if it 
 is founded upon some collateral motive of his own, and no suspicion of subornation can 
 be fairly entertained ; the cause, in other respects, should be at liberty to stand or fall 
 upon its general merits, without being affected by the peculiar objection ; in the same 
 manner >is a series of reasoning, in itself perfect aud complete, is not affected by the colla- 
 teral addition of an untenable argument. 
 
 " The conflibt of opposite witnesses is the grand source of forensic altercation. In ad- 
 verting to the circumstances which influence the credit of witnesses individually or 
 collectively, I have necessarily had occasion to mention their opposition. Without going 
 through the particulars again, it will be sufficient generally to observe, that whatever 
 principles of reasoning are correct and proper, when exanjining the veracity or accuracy 
 of an individual witness or a number of witnesses uncontradicted, become more peculiarly 
 Important in determining the balance of credit, with respect to veracity, or the superior 
 degree of accuracy, upon matters of judgment and observation, in cases of conflict aud 
 opposition. The general ground of credit, founded upon the presumption that a witness 
 speaks with truth and accuracy, is destroyed when the respective assertions are in opposi- 
 tion to each other, and therefore cannot both be true. Whatever, therefore, may establish 
 or diminish the confidence in a witness, whose testimony is uncontradicted, will determine 
 the preference in cases of opposition ; but the respective grounds of assent or discredit are 
 sometimes so equally balanced, that the mind cannot, with satisfaction, pronounce a judg- 
 ment between them ; and all that can be recommended is a calm, patient, and anxious 
 iuv«Btigation. Where the possibility of mistalto on the one side is contrasted with the 
 
SEa II.] Situation and Ifumber of Witnesses. 613 
 
 imputation of pequry on the other, and there are no collateral circumstances to fix the 
 determination, there can be no doubt but that a casual error is to be deemed more pro 
 bable than a willful misrepresentation. When the judgment, after every exertion, is 
 reduced to the necessity of deciding, that on the one side or the other, there has been an 
 intentional falsehood, and no satisfactory reasons occur for fixing the superiority of credit ; 
 the last resource is to obliterate wholly the conflicting testimony, and to determine upon 
 the want of a preponderance in proof, according to the rules which must have prevailed 
 in the total absence of it. The result of an investigation of evidence will, after the most 
 enlightened and painful research, be in many cases unfortunately at variance with the 
 actual truth, but in proportion to the dangers of error inherent in the very frame and 
 nature of the subject, should be care and anxiety exercised in the avoidance of such error 
 as may proceed from an excess of confidence on the one hand or of caution on the other ; 
 and although that care and anxiety will often fail in their particular application, the per- 
 fection of human precaution will be attained, if they are so conducted that, according to 
 the principles of reason and experience, they may be expected in general to succeed. 
 
 " It is said, that if a witness deposes falsely in any part of his testimony, the whole of 
 it is to be rejected ; and this is certainly correct so far as the falsehood supposes the guilt 
 of perj ury, the ground of credit being there destroyed ; but if nothing can be imputed to 
 the witness but error, inaccuracy or embarrassment ; if there does not appear to be a real 
 intention to deceive or misrepresent; neither the objection nor the reason for it applies. 
 The argument is sometimes urged with considerable vehemence, that a party who relies 
 vipon the tes'iinony of a witness, must take it all together, and cannot rely upon the one 
 part and reject the other ; whereas there is no inconsistency in asserting the general 
 voracity of a narrative, and contending for the inaccurracy of some of its incidental parti- 
 culars ; much less is a party to be driven from his reliance upon the matters of fact 
 related by a witness, because he contends that the witness is ill-founded in his reason- 
 ings and inferences deduced from them, as I have endeavored to illustrate in a 
 preceding part of the present section." 2 Ev. Poth. 236 to 266. 
 
 It detracts nothing from the above remarks of Sir William D. Evans, to say they were 
 suggested by several passages of the famous article de testibns, Lib. 23, in the Pandects ; 
 which, if the English reader be desirous to see at large, he may consult 2 Strahan's Dom. 
 b. 3, tit. 6, § 8, and particularly art. 8, 9, 10, 11, 12 and 15 of the section cited. Mr. Evans 
 is the first considerable contri'autor, in this kind, to our law of evidence ; and seems hap- 
 pily to have selected the two departments where our usual books of authority were before 
 quite deficient; we mean circumstantial evidence (in respect to which we have often cited 
 him in previous notes), and the credibility of witnesses. These are perhaps the only 
 departments in which free discussion, in a measure independent of judicial authority, 
 could at tills day be rendered practically useful. In these titles, while, with regard to 
 some particulars, adjudged cases may have settled the law ; yet others appear to be with- 
 outjihe reach of such cases ; thus rendering the private discussions of able and experienced 
 professional gentlemen not only acceptable, but necessary. Mr. Starkie, in his late Trea- 
 tise on evidence, entertained the same view of this subject as Mr. Evans ; and, beside 
 introducing the remarks of the latter under a somewhat different dress and arrangement, 
 has superadded several important suggestions and illustrations. Among others, he has 
 enforced Mr. Evans' distinction between the credibility of witnesses holding different 
 interests in society, by their different sense of temporal consequences. Although this 
 argument be sufficiently obvious, and often practically adopted by jurors, it is satisfactory 
 at least, to see it take the form of authority. The amount of the argument is, that while 
 the moral obligation of an oath may be equally strong in different ranks, the temporal 
 punishment of perj ury, or the inj ury consequent upon mere detection or suspicion that the 
 witness had violated or discolored the truth, would be looked to by different persons with 
 very different degrees of apprehension. The cases put by Mr. Starkie are those of the 
 solicitor or attorney compared with the common laborer. 3 Stark. Ev. 520, note. He very 
 proi)erly suggests, that where the witness is called to remove an imputation upon him- 
 self, thiJ argument in favor of credibility might then be strongest for the witnesses of 
 inferior rank. Id. 
 
 A difference of statement between the witness's testimony on the stand, and, on previ- 
 ous occasions, his connection with the party by the ties of consanguinity, affinity, friendship, 
 or in the way of trade, profession or membership of any description, are obvious sugges- 
 tions in considering a conflict of testimony. So an interest in a similar question, or 
 expectation of future gain, ill will towards the party, &c. See 3 Stark. Ev. 520, 521. lU 
 will not only against the party, but even the indorser of the party (Merrills v. Law, 9 
 Cowon, 95) ; or evidence that the party had bought the witness's real property, at his 
 request (Cameron v. Montgomery, 13 Serg. & Rawle, 18?), are instances to show what 
 slight circumstances of suspicion may be sometimes inquired of from the witness, to show 
 the state of his mind. Indeed, it will be seen by our quotations, that the circumstances 
 bearing with greater or less weight upon questions of abstract or relative credibility, are 
 BO infinitely diversified as to defy enumeration. Two witnesses are brought upon the 
 stand, the one to impeach and the other to sustain the (jeneral character of a third, the 
 first having had cause for hostile feeling, and the other being free from the influence of 
 
614 Of the Relevancy of JPresumptitle JProofs. [ch. x. 
 
 *731 *partof the fules of evidence is founded upon presumptions; and the 
 subject of the present chapter receives illustration from nearly every 
 other chapter of the present work. 
 
 *732 *SECTIOISr III. 
 
 Of the Relevancy of Presumptive Proofs; and of the Rule which Confines 
 Evidence to the Points in Issue. 
 
 With respect to presumptions which are too remote to admit of any reason- 
 able direction to a jury in regard to the issue which they have to try, a very 
 nice exercise of discretion often devolves upon the judge(l.) It is his duty 
 
 any such imotive, and indifferent in other respects; would speak with very different effect 
 io the mind of a jury. How readily, in such a case, would jurors apply the above precau- 
 tion of Mr. Evans against receiving, with implicit confidence, the mere opinion of a 
 prejudiced witness. See Newell v. Wright, 8 Conn. Rep. 332. 
 
 , It is almost unnecessary to observe that the rules for trying the credibility of witnesses 
 hold eq(ually In respect to the proof of circumstances, as where they speak directly to the 
 fact in issue. 
 
 (1) Note 195.— The court always protect the jury from irrelevant testimony, by excluding 
 it, on objection, in the same manner as they shut out other incompetent proof. Hart v. 
 Newland, 3 Hawks. 1^3, 133 ; Winlock v. Hardy, 4 Litt. 373 ; Sterling v. Luckett, 7 Mart. 
 Lou. Rep. (N, S.) 198. But you are not bound to do this before the witness is sworn. If 
 he be, therefore, precluded his oath for such a refusal, and not by reason of personal 
 incompetency, it wiU be error. Force v. Smith, 1 Dana, 151. 
 
 If evidence be irrelevant at the time it is offered, it is not error to reject it because other 
 evidence may afterwards be given, in connection with which it would become relevant. 
 If it would be relevant, in conjunction with other facts, it should be proposed in connec- 
 tion with those facts, and an offer to follow the evidence proposed, with proof of those 
 facts at a proper time. Weidler v. The Farmers' Bank of Lancaster, 11 Serg. & Rawle, 
 134. And counsel are bound, on the requisition of the court, to state particularly the 
 substance of the evidence they propose to adduce ; and if they refuse, or state evasively or 
 in general terms merely, the proposed witnesses or other testimony may be rejected. Roy 
 V. Targee, 7 Wend. 359. Thus, where in debt on recognizance, plea release and replica- 
 tion fraud, the plaintiff proposed to prove that the release was obtained by the promise of 
 another to pay certain money, which had not been done, and claimed to avoid the release 
 because thus obtained on a promise violated. The testimony being excluded, the plaintiff 
 yet produced a witness, when the court demanded that the purpose of producing the 
 witness should be stated in writing. The same facts were then offered again, with 
 the addition that such procurement of the release was by the fraud, contrivance, falsa 
 representation, &c., of the promisor. This offer was overruled, because the party did not 
 . offer to prove any specific acta of fraud beyond what he at first proposed. On error brougbt, 
 the decision was sustained ; and per Rogers, J. : " If this can be done, the decision of the 
 court may at any time be avoided by the use of general terms ; and which do not enable 
 tliem to judge of the relevancy of the testimony, which is their exclusive province." He 
 admitted that where a witness had refused to disclose what he knew, counsel might be 
 indulged in a general statement. Commonwealth v. Brenneman, 1 Rawle, 811, 316, 317. 
 And see, as to such discretion, per Nelson, J., in 7 Wend. 863. Yet, evidence proposed 
 cannot be rejected because it is imaginable that something more may be necessary in con- 
 nection. Thus, where the plaintiff, a black, in Louisiana, to prove her freedom, offered a 
 deed of emancipation executed in Ohio ; hold, that this could not be rejected because " it 
 was incumbent on her to prove the formalities (if any such there were) required by the 
 laws of Ohio in emancipating slaves." Hawkins v. Van Wickle, 6 Mart. Lou. Rep. 418. 
 
 (Judicial presumptions which have been raised and applied in various cases may sei-ve 
 to illustrate the rule under consideration. The presumption that he who supplies the 
 money to purchase land intends It for his own benefit rather than that of another, does 
 no* apply where the money is supplied by the parent and the conveyance made to his 
 child; or by the husband and the conveyance made to his wife; the purchase in such 
 cases may fairly be deemed to have been made from motives of natural love and affection, 
 and the legal presumption is that the purchase was intended as an admncement, unless 
 w '^°^V^Y^ ^T "^s'^^lished by proof. Wolton v. Divine, 20 Barb. 9; 11 John. 91 ; 19 
 Wend. 414. When such a purchase is made by an insolvent, the property may be reached 
 by his creditors. Jencks v. Alexander, 11 Paige Ch. 619. 
 
 When a deed is given and a mortgage executed on the same day by the grantee to the 
 
BBC. III.] Evidence to he confined to Points in Issue. 615 
 
 to confine the evidence to the points in issue, that the attention of juries ^ 
 may not be distracted, nor the public time needlessly consumed ; but in 
 deciding that the evidence of any particular circumstance is not receivable 
 upon this ground, he must impliedly determine that no presumption to be 
 drawn from that circumstance ought properly to have an effect upon the 
 minds of the jury. (1) , 
 
 grantor, or even to a tliird person, the court will infer that the deed and mortgage were 
 executed at the same time, and were parts of one and the same transaction: Kittle v. 
 Van Dyck, 1 Sand. ch. 76 ; Gilliam v. Moore, 4 Leigh's E. 30. The deed and mortgage 
 being acknowledged and recorded at the same time, the presumption arises that they 
 were simultaneous acts and that the latter was given for the purchase money, though 
 given to another party. Cunningham v. Kuight, 1 Barb. 399. 
 
 Where the holder of a junior mortgage forecloses it and buys in the property, the pre- 
 sumption is that he bids to the val ue of the equity of redemption only, and that the 
 premises become thenceforth the primary fund for the payment of the debt secured by 
 the first mortgage ; so held in favor of the guarantor of the first mortgage, on a bill 
 filed claiming the benefit of that security. Matthews y. Aikin, 1 Comst. 595 ; 10 Paige 
 Ch. 503, 249. 
 
 When the claim of title to real estate is solely through a, power, i. «., through the 
 assignee of a bankrupt, it must be proved that such power was duly executed. If it is 
 qualified by a condition precedent, it must appear that the condition was perfonned. or 
 the attempted exercise of it will prove inefiectual. To sustain a title under statutory 
 proceedings, it must be proved that the requisite preliminaries were adopted;- for there 
 " is no presumption in their favor where a change of title to real estate is sought to bs 
 established. Cleveland v. Boerum, 27 Barb. 352. 
 
 It will not be presumed from mere lapse of time that an assignee of an insolvent 
 debtor has reconveyed to him real estate where it is not shown that his debts have been 
 paid. Roseboom v. Mosher, 2 Denio, 61 ; see Jackson v. Cole, 4 Cowen, 587. 
 
 The legal presumption is that oysters in the bed of navigable waters grew there, and 
 belong to tliose who first reduce them to possession. Smith v. Levinus, 4 SeM. 472. It 
 will be presumed that the owners of a vessel are entitled to its earnings, freight ; 1 Hilt. 
 345 ; that the consignee of goods is the owner of them ; 3 E. D. Smith, 317 ; Price v. 
 Powell, 3 Comst. 332 ; that property purchased by the wife belongs to her husband ; Glann 
 V. Younglove, 27 Barb. 480 ; that a mortgage was given on the day of its date ; Wyckoff 
 V. Kemsen, 11 Paige, 564 ; that a promissory note was given for value ; 2 E. D. Smith, 
 395 ; 17 Barb. 530 ; that the party holding it, properlv indorsed, is the owner ; 6 N. Y. 
 209 ; 1 Denio, 367 ; 15 Barb. 282 ; Stephens v. McNeill. 26 Barb. 651 ; that a guaranty 
 written over defendant's name on the back of a note, not in his handwriting, was written 
 before he signed his name ; Small v. Sloan, 1 Bosw. 353 ; and that a written promise to 
 pay and discharge two notes, describing them, but not containing the name of the 
 promisee, was given to the party having it in possession ; Forman v. Stebbins, 4 Hill, 181 ; 
 that where one man delivers money to another, it is the property of the party receiving 
 it ; Bogert v. Morse, 1 Comst. 377 ; 4 Denio, 108 ; 34 Barb. 533. ' 
 
 If the contract for the sale of goods fixes no time of payment, the presumption will be 
 that they are to be paid for on delivery. Tipton v. Feitner, 20 N. Y. 483 ; 4 Seld. 508. If 
 the owner of a quantity of goods contract to sell them as one parcel, and afterwards sell 
 and deliver a part of them to another person, it will be presumed that the latter sale was 
 valid. Christ v. Armour, 34 Barb. 378. Where the lender, on a loan of $500, takes a note 
 for part of that sum, signed by one person as principal'and another as surety, and another 
 note for the balance, signed by the party signing the other as principal, it will be pre- ' 
 sumed that the loan was made to the latter. Underbill v. Crawford, 39 Barb. 664. The 
 law will not presume the commission of a crime, nor a state of facts that would work a 
 forfeiture, as that a note, signed and indorsed in this state, and negotiated in Connecticut 
 on terms that would be usurious here, was usurious under the law of that State. City 
 Savings Bank v. Bidwell, 29 Barb. 335. The ordinary presumption that the foreign law 
 agrees with our own does not prevail in such a case. Cutler v. Wright, 82 N. Y., 473.) 
 
 (1) In some instances, judges have drawn the line as to the length of time after a theft, 
 which may render the possession of stolen goods relevant. Anon., 3 C. & P. 459. In Mann 
 V. Lang (3 A. & E. 705), all the judges appear to have thought certain evidence admissi- 
 ble, though several of them appear to have considered the presumption arising from it of 
 the weakest description. 
 
 *733 *NOTB 196. — That proof must not vary from the issue, will be more fully illu». 
 trated in the notes to the twelfth chapter. A few cases only, which do not range 
 themselves in any particular order, shall here be given. 
 
 By replying to issue, the plaintiff admits the validity of the plea ; and though it be 
 bad, he cannot object to proof under it. Myer v. M'Lean, 1 John. Rep. 509. 
 
 Notice, instead of a special plea, of prescription to fish adjoining the locm in quo, and 
 of using and occupying the shore for that purpose, will not warrant evidence of a pre- 
 
616 Of the Relevancy of Presumptive Proofs. [ch. x. 
 
 BCription to erect huts on the shore for the purpose of fishing. Cortelyou v. Van Brunt, 
 2 John. Rep. 357. 
 
 ■ Where notice of special matter (under the statute, 1 R. L. New York, 515, § 1), was 
 given instead of a plea, held that the plaintiff might reply by evidence, and the defend- 
 ant rejoin in evidence, any matter possibly admissible in pleading ; e. g. on notice of son 
 assault, the plaintiff might prove molUter manus, and the defendant rejoin in his proof 
 any matter which, if the pleadings had been special, could have been pleaded. Collier v. 
 Moulton, 7 John. Rep. 109. 
 
 In an action on a bond conditioned for the faithful performance of an agent, a replica- 
 tion that he had money which he refused to account for in 1832, and a rejoinder that he 
 iad not, does not admit proof that the agency ceased in 1816. The rejoinder should 
 have in terms averred the termination of the agency at that time. Boston Hat Manufac- 
 tory V. Messinger, 3 Pick. 333. 
 
 In an action on a contract to deliver goods, the plaintiff cannot show that, after they 
 were delivered to him, the defendant fraudulently took them away, and substituted 
 pthers. Such evidence is out of the issue. Gilpins v. Consequa, 1 Pet. C. C. Rep. 85, 88 ; 
 S. C, 3 Wash. C. C. Rep. 184, 187. 
 
 Matter excusing performance is not admissible under a plea of covenants performed. 
 Poague V. Richardson, Litt. Sel. Cas. 134, 135, 136 ; Holt v. Crume, Litt. Sel. Cas. 499, 
 500, S. P. 
 
 A fact not alleged on one side, though it be denied by the other, is not in issue, and 
 need not be proved. Thus, in covenant, the plaintiff claimed $100 for fixing the defend- 
 ant's mill so that it would saw so much, and averred that he had so fixed it. On oyer, 
 the covenant was so that, in the opinion of a good sawyer agreed on, it would saw so much ; 
 and the defendant denied that, in the opinion of a good sawyer so agreed on, it would 
 saw so much. Held sufficient to prove that it would in truth saw so much, for that satis-" 
 fied the plaintiff's allegation ; and the defendant had denied a fact not alleged. The 
 question would have been different on demurrer or motion in arrest. Fry v. Whitingill, 
 Litt. Sel. Cas. 181. 
 
 On an issue whether part of a testator's estate is in the hands of an executor, evidence 
 that he is a creditor of liis co-executor, and that he became so by transferring that part 
 of the estate in question to his co-executor, is relevant an,d admissible. Galbjeath v. 
 Rife 2 Rawle, 144. 
 
 Trespass quare elausum fregit. Plea, liberum tenementum of the defendant. Replica- 
 tion, a demise froru the defendant to the plaintiff from April 33d, 1821, for one year, and 
 thenceforward from year to year. Proof, that the plaintiff paid the defendant rent. 
 Abbott, C. J. : " This shows a demise, but it may be very different from the one laid. It 
 might be proof of a demise for twenty-one years, as well as of the demise laid. Phillips 
 v. Mosely et al., 1 Carr. & Payne, 363. 
 
 In actions by bill in the King's Bench, the defendant may, under the general issue, 
 give in evidence matter of defence which occurred between the issuing of the tattitat and 
 before declaration, and such matter («. g. accord and satisfaction) is an answer to the action. 
 For the purposes of justice, the declaration is considered the commencement of the 
 action. Worswick v. Beswick, 10 Bam. & CreSs. 676 Note. Tliis decision was in an 
 action of trover, and seems to apply to those cases only where the matter is ordinarily 
 admissible under the general issue ; not where, from the nature of the action, it must be 
 pleaded. 
 
 Circumstances of mere alleviation or aggravation are irrelevant upon the trial. They 
 are totally immaterial to the verdict.; . because they do not prevent or conclude the jury's 
 finding for or, against the defendant.. Thdy may be made use of wlion the judgment is 
 given, to increase or lessen the punishment. Circumstances which amount" to a lawful 
 excuse or justilication are proper upon the trial, and can only be used there. Rex v. 
 Shipley, 4 Doug. 73, 163, per Lord Mansfield, C. J. ; Id. 177, 178, per Willes, J. 
 
 The cases do not agree upon the question whether irrelevant testimony being given -on 
 one side, for the assumed purpiso of proving a fact, will warrant other testimony in reply 
 to that so given, either to repel it directly, or touching the fact upon which it professes to 
 bear. The result would seem to be, that it is discretionary with the court to hear 
 *734 or reject the evidence in reply. *In many cases, and indped all, the expense of 
 time must be useless ; and may, by consent of parties be made endless, if the court 
 have no power to interfere. 
 
 On a petition for freedom, the defendant gave in evidence, without objection, hearsay 
 and rejiutation against the freedom of the petitioner The latter then offered the same 
 kind of evidence in favor of his freedom ; to which the defendant objected. The court 
 held the objeotion well taken ; saying that improper evidence on one side will not justify 
 its introduction on the other, if objected to. The first would have been rejected, had an 
 objection been made. The doctrine contended for would lead to endless confusion, and 
 destroy all the rulos of evidence. Walkup v. Pratt, 6 Har. & John. 51, 56 ; Stringer v. 
 Lessee of Young, 3 Peters' Rep. 886, 337, S. P. ; Samuel v. Bond, Litt. Sol. Cas. 158, 
 159, S. P. 
 
 The plaintiffs in ejeotuient proved a grant of the tract claimed by them, and then that 
 
6Ea III.] Euidence to he confined to Points in Issue. 617 
 
 the defendants had made entries in respect to the tract, having noticfe of the plaintiff's 
 claim under the grant. Then the defendants offered to prove entries in respect to the 
 same tract, made by third persons, since the grant, in order to show the general opinion 
 that the land arranted was vacant. Held inadmissible because irrelevant, as not affecting 
 the grant ; nor was it admissible to give irrelevant testimony, because it was an answer to 
 other irrelevant testimony. Stringer v. Young, 3 Pet. Rep. 336, 337. 
 
 Yet, in several instances, such testimony being received, this was held no objection, on 
 error, or motion for a new trial. 
 
 In assumpsit against several partners, one of them introduced a letter of his copartner 
 to the plaintiff, which it was insisted made against him. In consequence of this, the 
 plaintiff offered to show that the same copartner, in answer to certain interrogatories, had 
 contradicted what he said in the letter. This was objected to by the defendant who pro- 
 duced the letter ; but it was received. Held no error, as the defendant had himself laid 
 the foundation for it. Riggs v. Lindsay, 7 Cranch, 500, 503, 504. So, though character 
 be not in issue, if the party introduce evidence to support his character ; held, that for 
 that reason the other party might give evidence in reply. Grannis v. Branden, 5 Day, 
 260. Where the plaint ffs offered evidence of the credibility of one of their witnesses, 
 the defendants were allowed to ask another, if the plaintiffs' witness had .not been guilty 
 of larceny. The testimony on both sides was illegal ; but as the plaintiffs resorted to that 
 mode in support of credibility, held, that they could not complain tliat it was rebutted in 
 the same way. Prevost v. Simeon, 4 Miller's Lou. Rep. 473. 
 
 In trespass, the plaintiff proved that he bought at the defendant's store a pipe of French 
 brandy, which being left with the defendant a few days, he took out forty ga'Ious and 
 substituted American brandy, in the presence of his partner. The partner called for the 
 defendant contradicted this. He was^sked by the plaintiff's counsel whether he or his 
 partner had in any instance adulterated brandy or spirits. The defendant made no 
 objection, and the witness answered, and the counsel then, on both sides, put many ques- 
 tions ou the point. The next morning, the counsel for the plaintiff repeated the queslSon 
 as to particular cases, and inquired of sales to particular persons then in court. The 
 defendant's counsel then objected, that the inquiry was not relevant, but the judge 
 allowed the questions to be put, and required them to be answered. The court, on motion 
 for a uew trial, said there was no objection made to entering on the inquiry ; and it might,- 
 ^therefore, under the circumstances, be pursued. Young v. Mason, 8 Pick. 551. And the 
 court held, in terms, that though you call for a paper from the other side as evidence, and 
 peruse it, you need not read it unless it be material, though the other side call on you to 
 do so. Wilson v. Bowie, 1 Carr. & Payne, 8. If a witness be examined by both parties 
 without objection, as to matter irrelevant, one party cannot object to a farther examination 
 on the same subject. Id. ; Young v. Mason, 8 Pick. 551. Again ; on proof that one made 
 a contract for another, though this was immaterial, yet held that it was not improper to 
 rebut the proof by other testimony. Grafton Bank v. Woodward, o N. H. Rep. 301. 
 What passed at a former trial in ejectment between other parties being given in evidence 
 by one side, though doubtful whether it was admissible, the opposite party was allowed 
 to show other evidence given on the same trial. Doe ex dem. Lloyd v. Passingham, 2 
 Carr. & Payne, 440. In false imprisonment on suspicion, Cranshaw, J., said, if the de- 
 fendant could not primarily impeach the plaintiff's general character to mitigate damages, 
 he might do it in reply to evidence in its support. Rogers v. Wilson, 1 Alab. Rep' 
 407, 410. 
 
 After a question has been repeatedly asked and answered, without objection, in the 
 *735 course of *a trial, it is too late to object to its admissbility, on the ground that 
 the answer is, in itself, inadmissible. M'Kee v. Nelson, Cowen's Rep. 355, 357. 
 And evidence, though it be entirely out of the issue, if not objected to at the time, for 
 variance, is no ground of objection afterwards. M'Micken v. Brown, 6 Mart. Lou Rep 
 (N. S.) 85. 
 
 Both the cases in the text, and these which follow, it is presumed must be taken with 
 the qualifications mentioned ante, in note 183, of these notes. 
 
 Ou trial of an indictment for shop-breaking and stealing from the shop, proof that part 
 of the goods stolen was found in possession of the prisoner, is prima facie evidence that 
 he is guilty of the whole charge. Commonwealth v. Millard, 1 Mass. Rep. 6. So in a 
 case of common larceny, the jury may infer a stealing of the whole, from a possession of 
 part. State v. Jenkins, 1 Tyl. 377, 379 ; Collins' Case, 4 C. H. Rec. 139, before Colden 
 Mayor, N. Y. Geu. Sessions, Oct. 1819 ; per Colden, mayor, in Ball's Case, 4 C. H. Rec. 118* 
 S. P. This was denied of a burglary, at N. Y. Gen. Sessions, in People v. Frazier, 2* 
 Wheel. Cr. Cus. 55 ; but, it is presumed, hastily. 
 
 "The text, it will be perceived, here brings us to consider the state of the issue and 
 whether the proposed evidence bears upon it. This, says the text, ante, must be tested 
 by considering the view with which it is offered ; for evidence may be admissible in one 
 point of view, though not in another. Per Lord Tenterden, C. J. in Taylor v. Willans 2 
 Barn. & Adolph. 833, S. P. In the instance given by the text, of Rex v. Inhabitants' of 
 Northamptonshire, we have an indictment against a county for not repairing a public 
 bridge. The plea of not guilty put in issue not only the question of repair, but if it had 
 
 Vol. I. V8 
 
618 Of the Relevancy of Presumptive Proofs. [ch. x. 
 
 turned out tliat the bridge were the property of an individual, the county would have 
 been under no duty, and had no right to repair. Acts of exclusive possession by individ- 
 uals tend to determine this question, and the quality of their acts have a slight tendency 
 the same vray. It is a very little circumstance ; but yet, having the least weight, it is 
 admissible in connection with others proposed, or which may readily be conceived ; and, 
 in the general conflict of circumstances, may determine the question. Have the use of 
 the public and individuals been equal ? Has the public made repairs, and to what extent ? 
 and, on the other hand, what has been the extent of the individual repairs ? for what 
 time ? and if the latter greatly exceed the former, still they may be of an equivocal char- 
 acter. If substantial, and such as the public would require, they might be construed as a 
 gratuity from individuals in aid of the public,' though partly for their private benefit. 
 But if merely ornamental, there is less probability of that being so, though, after all, the 
 difference may be very slight, perhaps barely perceptible. The general issue may thus, 
 in many instances, present a very broad field of inquiry, and open an extensive range of 
 circumstantial evidence. 
 
 In anipther case, which was an actiofl for procuring a malicious indictment for pejjjuty, 
 those conducting the examination before the justice objected to the now plaintiff being 
 holden to bail. The objection was obviated by presenting a letter, supposed to have been 
 written by the lord chief justice, stating that it was a bailable case. The fact of so pre- 
 senting this supposed letter was received as proof on the now trial, without proving its 
 genuineness. This was excepted to. An affidavit of the now defendant's agent to prose- 
 cute for the perjury was also received, stating that he had interfered to discourage one C. 
 from becoming bail for the now plaintiff, This was excepted to. The now defendant 
 appeared, but was not sworn before the petty jury on the trial of the perjury, which cir- 
 cumstance was now left to the jury; and it was put to them to say whether this non- 
 appearance, as a witness, arose fromi a consciousness that he had no evidence to give In 
 support of the indictment, or from some other cause. ' This was also excepted to. The 
 ca«se was tried in the Common Pleas. On error, by the defendant, the chief justice (Lord 
 Teaterden) confirms the suggestion in the text, that " in deciding the question whether 
 certain evidence be admissible or not, we must look at the object for which it is produced, 
 and the ppint it is intended to establish; for it maybe admissible for one purpose, and 
 not for another." He then shows the drift of exhibiting his supposed letter, and the 
 agent's affidavit. The latter was to prove that some measures were taken to prevent per- 
 sons from becoming bail ; and being made as the now defendant's agent in the course of 
 his business, was receivable as an admission. The object of the letter was to show that 
 the magistrate refused to take bail till the letter was produced ; no matter whether the 
 letter was genuine or not. The court also held that the question of motive in hot appear- 
 ing was properly left to the jury, the want of probable cause being a mixed question 
 of law and fact, under the circumstances of this case. Taylor v. Willans, 2 Barn & 
 
 Adolph. 833. 
 *786 Circumstances, not only minute, but remote in time and place, may be received as 
 ' material. On trial of an indictment for murder committed by dirking, it appeared 
 that a dirk without a cap had been found secreted near the place of the murder ; and the 
 cap of a dirk engraved J. H. was handed to a witness, by a negro, a mile and a half from 
 the place; but how he came by it, no one could tell. The handle was. engraved with 
 the letters J. H. ; and it appeared that, some sixteen or seventeen years before, a witness 
 purchased a dirk with this engraving, for James Hickman, the half-brother of the 
 prisoner ; that Hickman since died ; and the prisoner had admitted that a dirk was 
 the only part of H.'s property he had received. The witness, who heard him make this 
 admission, saw a dirk in his hand with J. H. engraved on the handle ; but could no 
 farther identify it with the one now produced. The dirk found secreted was identified by 
 the finder, from its general appearance, with the one now produced ; and the cap pro- 
 duced by the negro apparently fitted the handle. The prisoner had, before the murder, lent 
 a dirk, not now identified, which was returned to him before the murder was committed. 
 There was no other proof that the prisoner had ever been at or near the place of the mur- 
 der. These circumstances were allowed to go to the jury as evidence that the dirk 
 found belonged to the prisoner ; and they were told that, if they had do doubt of its being 
 his property, then the prisoner's dirk so found made one circumstance to be weighed with 
 others. This was holden well on error. Mendum v. The Commonwealth, 6 Hand. 704, 
 711—713. Now it is obvious how perfectly slight and utterly inconclusive any one, or 
 any two or three, of these circumstances must have been. Yet, all being combined, the 
 result of the trial (a verdict of guilty) shows that the jury felt safe in acting upon them, 
 as leaving no doubt. See per Hosmer, C. J., in State of Connecticut v. Watkins 6 Conn' 
 Eep. 53 ; S. C, infra. 
 
 •" It is frequently difficult to ascertain, a priori, whether proof of a particular fact 
 offered in evidence will or will not become material ; and, in such cases, it is the usual 
 practice of the court to givB credit to the assertion of the counsel who tenders such evi- 
 dence, that the fact will turn out to be material." 4 Stark. Ev. 381. Thus, a deed to the 
 lessor of the plaintiff, or one under whom he claims, may be rejected as irrelevant, unless 
 title first be shown in the grantor or at least an offer made to follow it np with proof of 
 
SKO, III.] JEIvidence to be confined to Points in Issue. 619 
 
 his title. Winlock v. Hardy, 4 Litt; 272, 273. So of all deeds having no apparent con- 
 nection with the matter in issue. Harris v. Paiynes, 5 Litt. 10.5, 107, 108. Agpin; in an 
 action on a covenant, to save from all judgments .in fa¥or*>f P. and B. against thei owners 
 of the steamboat H., recovered for the, price of the boat, a record of judgment pn notes 
 against the covenantee in favor, of P. and B., was held not relevant, thus nakedly pre- 
 sented. It should have been accompanied with proof cUiwnde, that the notes were given 
 for the price-of the boat by: the owners.. The judgment being founded on the mere naked 
 proof of the record, for aught that appeared' in the bUl of exceptions, was reversed on 
 error. Wilson's Adm'rs v. Bowen, 5. Mqnroe, 33. The court must be enabled, on error, 
 to see the relevancy. To support a. plea of title, the defendant offered in evideace the 
 declarations of a former grantor, which were admitted, though the plaintiff objected and 
 took a bill of exceptions. But it. did not appear whether the declarations were relevant 
 or not. Held, they were inadmissible ; and the judgment was reversed. Clark v. Beach, 
 6 Conn. Rep. 143. Though a matter may possibly be relevant, yet the party must show 
 how, otherwise it cannot be received ; and the court will not on error reverse a judgment 
 on account of its rejection, unless the relevancy appear- aflBrmatively.. Thus where, on a 
 question of forging a bond in 1807, a person, not the Megei forger, said, speaking of the 
 bond, some thirteen years after its date, " my pen has not forgot to write," whicji might 
 by some possibility have been made relevant ; yet, this not apearing affirmatively on the 
 bill of exceptions, the court refused to hold it so. Kowt's Adm'r v. Kile's Adm'r, 1 Leigh's 
 Bep. 316, 233, 234. And see Turner v. Fendall, infra. So, where a book of accounts of 
 one party was offered against another to prove a debt, without other proof appearing, by 
 the bill of exceptions, to have been proposed, verifying the book, held that the book was 
 properly rejected. The People v. Genung, 11 Wend. 18, 21. See an instance of a con- 
 nected statement in a bill of exceptions. Benham V. Gary, 11 Wend. 83. 
 
 It is different, however, where the .proof tends, apparently in its own nature, to make 
 out the case, though the residue be, not offered ; as where it lay with the plaintiff to show 
 two facts: that certain posts and rails were erected; and that the defendant made tl^ 
 erection ; and the plaintiff offered to show that they were erected. This being.overruled, 
 the judgment was, therefore, reversed. Bartlett v. Evarts, 8 Conn. Rep..523. But 
 *737 see Weidler v. The Farmers' Bank of *Lancaster>. ivfra. Where the copy of a deed 
 appeared by the bill of exceptions to have been received, after objection, and the 
 bill did not profess to detail the whble evidence, the court presumed that other evidence ' 
 was given, making out a good title independent of the deed ; and said the reception of the 
 copy as evidence was, therefore, no cause of reversal, whether properly offered or not. 
 Hodges V. Crutcher, 1 J. J. Marsh. 504. 
 
 Tlie practical mode of introducing connected or consecutive proofs at the trial, seems to 
 have been pointed out with the . greatest perspicuity by the Supreme Court of Pennsyl- 
 vania. The defendants sold to the plaintiff a farm, under an execution against A , the 
 title to which failed, and the plaintiff sued for the money advanced ; and proposed to 
 show that the deputy sheriff assured him that the title was good. This was overruled. 
 On error, it was insisted on as proper : for perhaps the plaintiff iQould have shown that the 
 deputy had authority from the defendants to make the representation ; and that they 
 knew it to be false. But the court, by Gibson, J., said, 1. The deputy was not, like an 
 auctioneer, the agent of the parties, but of the law ; and as such, had no aijthority to bind 
 the defendants, by any representation, without their express authority. None was shown. 
 " The evidence, therefore, as it was offered, presented facts which, isolated as they stand 
 in the bill of exceptions, were altogether irrelevant. But the plaintiff contends that this 
 may have been only a part of the chain of his evidence ; and that what was deficient 
 might afterwards have been supplied. If this were admitted, no .court could, without 
 error, ever reject evidence for irrelevancy, as there is no fact so entirely irrelevant as to be 
 incapable of being connected with the qujBstion, however remote, by: the intervention of 
 a chain of possible circumstances. But the question is, how did the matter stand as it 
 was proposed to the court? If it was altogether irrelevant, the court might reject it, 
 although it might not perhaps be error to admit it. If it would be relevant, when taken 
 in connection with, other facts, it ought to be proposed in.connection wlih those facts ; and 
 an offer to follow the evidence proposed, with proof of those facts at the proper times. 
 But the court is not bound to spend its time in an inquiry, which, from the showing of 
 the party, can produce no possible results. Dislocated circumstances may doubtless be 
 given in evidence, particularly if there be no objection to the order of time ; but the pro- 
 posal of the evidence must contain in itself, by reference to something that has preceded 
 it, or that is to follow, information of the manner in which it is to be legitimately opera- 
 tive." Weidler v. Farmers' Bank of Lancaster, 11 Serg. & Kawle, 139, 140. 
 
 (When an offer of evidence embraces matters which are admissible among those which 
 are inadmissible, the whole may be rejected. Hosley v. Black, 28 N. Y. 438, 444. So 
 where an objection is taken to evidence, the counsel must call the attention of the court 
 jto the particular portion to which he objects ; for if he objects to the whole evidence of 
 two witnesses, the most of which is unobjectionable, his objection will go for nothing. 
 The same rule applies as in offers of evidence or exceptions to the charge of. the court 
 Keller v. N. Y. Central B. B. Co.,,34 How. Pr. 173 ; Daniels v. Patterson, 3 Comst. 47, 51,; 
 
620 Of the Belevancy of Presumptive Proofs. [ch. x. 
 
 Elwell V. Dodge, 33 Barb. 336, 343. The offer of evidence must be specific (33 Barb. 336), 
 and must •how how it may be material. First Baptist Church v. Brooklyn Fire Ins. Co., 
 23 How. Pr. 448. It must appear affirmatively that the evidence was relevant when 
 offered and excluded, that the court erred to the prejudice of the party excepting ; the 
 presumption being in favor of the rectitude of the proceeding and in favor of the decis- 
 ion. Van Amringe v. Barnett, 8 Bosw. 357. But if it appear that the court assumed a 
 fact in issue as a ground for excluding the evidence offered, it is an error for which a new 
 trial will be ordered. Mclntyre v. Clapp, 31 N. Y. 569. 
 
 A general exception to the charge of the court is not available, if any part of the 
 charge is correct ; Howland v. Willetts, 9 N Y. 170 ; and an exception to the whole charge 
 of th^ court, and to each part of it, where the charge involves more than a single propo- 
 sition and is not wholly erroneous, presents nothing for review on appeal. Jones v. 
 Osgood, 6 N. Y. 283 ; Caldwell v. Murphy, 11 Id. 416. See note 6 1 4, Vol. 2.) 
 ■ We propose a few more cases illustrative of the above reasoning. On trial of A. for 
 the murder of H., whom he had hired to murder another, it was held pertinent to prove 
 that H. had murdered the other, it being opened by the counsel for the prosecution that 
 A. murdered H. to prevent his (A 's) detection. Rex v. Clewes, 4 Carr. & Payne, 221. On 
 a question whether a bidder had notice of an incumbrance, the auctioneer's proclamation 
 of the incumbrance, before the bids began, is not admissible, per se. To make it so, proof 
 must be given that it was so made that the bidder could not fail to hear it. Porter v. 
 Liddle, 7 Mart. Lou. Rep. 23. In trover for flour, to prove that the plaintiff purchased it 
 from a vendee of one for whom the defendant was wharfinger; and that such purchase of 
 the plaintiff was with the fraudulent intent to deprive the defendant of his right to 
 demand payment of his wharfage before the goods were delivered, it was offered to show 
 that the vendee was insolvent, but the defendant's counsel admitting that the facts going 
 to show the insolvency could not be brought home to the knowledge of the plaintiff, 
 the court refused to receive the offered proof. Holiday v. Mann, 2 Carr. .& Payne, 509. 
 (pThese offers of counsel may, many times, without any imputation of unfairness, antici- 
 pate a greater number of circumstances, or more strength in the supposed proof of them, 
 or in tlieir combined effect, than the evidence ultimately presents ; in consequence of 
 which the case is heard upon proofs, and the question thus raised whether, on the whole, 
 they shall be submitted to, or withdrawn from the jury, as competent or incompetent 
 matter of consideration. 
 
 Thus, to charge C, an indorser, notice was left at his son's store, kept in a separate 
 apartment of C.'s house ; but there was no interior communication between them. C. 
 usually transacted his business in another part of the town, but was often about his son's 
 store ; and notices or letters, when left at the store, had been sent by the bearer to, or 
 delivered by the son at C.'s place of business, if seen or recollected by him. Now, this 
 was held insufficient proof of notice to C, yet the evidence was received. Had it been 
 followed out by C.'s admission that a notice, left at his son's, never failed of reaching 
 him immediately, or that the notice was immediately dispatched by the eon. or 
 *738 various other facts that may be conceived, the notice would have been *made out. 
 But it stopped short, and the court, by Washington, J., very justly remarked, that, 
 " Presumptions, from evidence given in a cause, of the existence of particular facts are, 
 in many, if not all cases, mixed questions of law and fact. If the evidence be irrelevant 
 to the fact insisted upon, or be such as cannot fairly warrant a jury in presuming it, the 
 court is BO far from being bound to instruct them that they are at liberty to presume it, 
 that they would err in giving such instruction ; for why give it when it is manifest that 
 if the jury should find their verdict upon the fact so deduced, it would be the duty of 
 the ciurt to set it aside, and to direct a re-trial of the cause ?" United States Bank v. 
 Corcoran, 2 Peters' Rep. 121,131, 133. The learned judge then adverts to the case of 
 Ireland v. Kip (11 Jolin Rep. 231 ; S. C. 10 Id 490) ; as one presenting much stronger 
 circumstances ; as strong as they could well be. In that case the defendant had directed 
 the letter carrier to leave all letters for him at a certain house in Frankfort street ; the 
 carrier called at the post-othce three or four times every day, and took out and delivered 
 accordingly all letters left there ; and the defendant usually sent or called every day at 
 that house for his letters. The refusal in the latter case to submit the evidence to the 
 jury, most probably is referable to the strict rule, that the notice to indorsors, resident in 
 the city where all the parlies reside, must be personal, or something equivalent, as by 
 leaving it at the|indorser's dwelling-house, or place of business, if absent. Id. By rely- 
 ing on the settled rule in that particular case, the indorser might have been inore 
 negligent of calling at the place appointed for his letters in general. Ho had no reason to 
 suppose the notice would be left there. See per Spencer, J., 11 John. Rep. 282, in S. C. 
 
 Wliere counsel propose a chain of evidence, the whole of which would be relevant, and 
 the court receives the evidence as far as it goes, but it stops short of the propositiim, the 
 course then is, not to suffer counsel to argue upon it to the jury, but withdraw it entirely 
 from their consideration. Thus, where the defendant insisted that the single bill on 
 which he was sued was to have been discharged by the surplus avails of cirtain bonds 
 received hy the plaintiffs, but which they had lost through negligence, he proved the 
 receipt of the bonds ; bat failed to show the agreement to apply. The court refused to 
 
SEC. ni. J Evidence to he confined to Paints in Issu^. 62.1 
 
 allow any argument on this imperfect case, and withdrew it from the jury. Stewart v. 
 The Huntingdon Bank, 11 Serg. & Uawle, 267. 
 
 In the last case, Tilghraan, C. J., takes occasion to remark : " It has grown into a habit, 
 within these few years, for counsel to propose a chain of evidence, the first links of which 
 depend on those which follow, and would not be supported without them. Now, although 
 gentlemen of honor (and such I take the counsel in this cause to be) would scorn to impose 
 on the court, by pledging themselves for what they knew they could not perform, yet it 
 may happen that there may be others who would make no scruple of liberal promises, 
 provided they could smuggle into the jury box a piece of evidence which ought not to 
 have got there. The court should therefore keep a wary eye on proceedings of this kind, 
 and take care to instruct the jury to pay no regard to the evidence which they have heard, 
 whenever the condition on which it was introduced is not complied with." Id. 370. In 
 a simple case, like that he was considering, counsel may sometimes fall within the above 
 censure. Oftentimes, however, in opening a chain of evidence, they are not so well 
 instructed (nor can they be) as to know its precise extent. 
 
 None of these difficulties occur where the testimony is obviously irrelevant in any view. 
 It is then the duty of the court to reject it at once ; as where the plaintiff claimed the value 
 of a slave killed by the defendant's slave, and ofiered to prove the looks of the latter while 
 the former was in a dying condiiion. Sterling v. Luckett, 7 Mart. Lou. Rep. (N. S.) 198. 
 
 In trials for conapird,cies and other offenses, involving a great multitude of circumstances, 
 a still more latitudinary course than any of the above, is sometimes necessarily taken ; 
 though it should be avoided, if practicable. Thus, on a trial of an indictment for a con- 
 spiracy to obtain merchandise, against five persons, letters were offered from one or two 
 respecting the obtaining of merchandise generally ; they containing no direct proof of a 
 conspiracy, nor was any general conspiracy yet made out. These letters were received on 
 the ground that they might become material in the course of the cause ; although their 
 niateria,lity did not yet appear. An order inclosed in a letter was received on the same 
 principle. But a part of the letter which related to a third person not named in the indict- 
 ment, nor concerned in the matter, was not allowed to be read. In respect to letters 
 jeceived as evidence, but not appearing in the particular stage of the cause to be 
 *739 relevant, the court intimated that the jury could finally judge of the relevancy. *Th9 
 Commonwealth v. Boyer et al.. Beading, Penna., November Gen. Sess 1833; 3 
 Wheel. Cr. Cas. 140, 143 to 146. 
 
 It is scarcely necessary to ohserve, that though a circumstance be proper as tending to 
 show a particular fact, it is inadmissible, unless the fact itself be pertinent to the question 
 in issue. Thus, where the sheriff levied money for P. on execution, and then levied on the 
 same money in his own hands, on a fi. fa. against F. ; being sued by F., the sheriff offered oral 
 evidence to show that F. was insolvent, and had taken the insolvent debtor's oath ; but 
 though this might entitle persons other than the plaintiff to the money, it would not 
 necessarily prevent this suit going on in F.'s name. It was therefore held inadmissible, 
 not because the facts offered might not be material to show a right in third persons ; but 
 because that right existing, and being shown, it would not, upon anything appearing, 
 affect the present case. Turner v. Fendall, 1 Cranch, 117, 119, 131, 132. 
 
 The plaintiff may sometimes, by his own course, exclude an inquiry which would 
 otherwise be relevant. He cannot go to the jury on two inconsistent propositions. 
 Thus, where the defendant gave evidence to impeach a note for want of consideration, 
 and the plaintiff proved a pecuniary consideration, which the defendant answered by 
 showing the plaintiff 's declaration that the consideration was a special agreement ; held, 
 that the plaintiff was precluded from insisting on both ; but must be confined to vindicate 
 one of his propositions. Winchell v. Latham, 6 Cowen's Rep. 083, 686, 689. And see 
 Beake's Ex'rs v. Birdsall, 1 Coxe, 13. And where the plaintiff proved the distinct confes- 
 sions of the defendant at different times, one of which did, and the other did not support 
 the declaration ; held, that the plaintiff might adopt the first and reject the last confession. 
 Hale V. AndruB, 6 Cowen's Rep. 335. 
 
 The proof may, of course, be relevant to one count of a declaration, and support it, 
 though it fail as to another. Safford v. Stevens, 3 Wend. 158. But where the defendant 
 was sued in assumpsit as a common carrier (the declaration including the money counts 
 also,) for corn taken forcibly away by the mob, who left some money with the defendant 
 in pay, the plaintiffs having closed their case, and the defendant's counsel being stopped 
 by the judge, who expressed an opinion in his favor, the plaintiffs' counsel would then 
 have gone for the money, and proposed to prove its receipt by the defendant. But held 
 too late, after the plaintiffs had closed their case (per Lord Kenyon, C. J.), Le Blanc, J., 
 saying the j udge might prevent going into a new case, in his discretion, at that stage 
 of the cause. Edwards v. Sherratt, 1 East. 604, 611, 614. 
 
 It is proper also to observe, that, where the right exists, as it does in most common-law 
 countrie.s, to interpose in conjunction with the plea of the general issue, special pleas in 
 bar, or (in some states) a special notice of the matter in bar ; neither of these will, in any 
 way, deprive the defendant of every latitude he would enjoy under the general issue. It 
 follows that though, by reason of variance or any other cause, the evidence offered be 
 not receivable as being specially introduced, it may yet come in under the general issue. 
 
623 Of the Melevahcy of Ptesumptwe ProojfSi [ch. x. 
 
 if admissible according to the abstract nature of that plea. Levy v. Gadshy , 3 Cranch, 
 180, 186; Smith v. Gregory, 8 Cow. Rep. 114; Fulton Bank v. Stafford, 2 Wend. 483'; 
 Bradley v. Field, 3 Wend. 372. 
 
 Thus, in setting out usury in a note (Smith v. Gregory; Fulton' Bank v. Stafford, and 
 Levy V. Gadsby, ut supra), or an insolvent's discharge (Bradley v. Field, ut supra), a, 
 variance between the plea or notice and the case made in proof, has been held not to pre- 
 clude its admission under the general issue.- 
 
 It should also be remembered that under the head of relevancy, the question is not 
 whether the evidence offered be the most convincing ; but whether it tends at all to illus- 
 trate the question. Holt v. Crume, Litt. Sel. Cas- 499, 500. 
 
 Again; to Inake testimony relevant, it is not necessary that it should be essential. 
 Though cumulative, and supererogatory, it may be received. Thus, in proving a sheriff's 
 sale of land on execution, the conditions of sale need not be shown. Yet if they are 
 fihown, though objected to, this is not error ; for the conditions are a part of the res gestcB. 
 Arnold v. Gorr, 1 Rawle, 223, 225;' Yet it maybe rejected as unnecessary. The conver- 
 sations leading to a written contract, which is fully in evidence, were held rejectionable 
 for that reason. Gilpins v. Consequa, 1 Pet. C. C. Hep. 85, 87 ; S. C, 3 Wash. C. C. Rep. 
 184, 188, S. P. 
 
 The following cases will show more particularly hbw testimony may- he admissible for 
 one purpose; though not for another ; although evidence of unliquidated damages be-not 
 admissible by way of defalcation (set-off) (Kachlin v. Mulhallon, 2 Dall. 287 r S. C, 
 *740 1 Yeates, 571 ; *Cornell v. Green. 10 Serg, & Rawle, 14 ; Gogel v. Jacoby, 5 Serg, 
 & Rawle, 117) ; yet in another view it may be relevant ; and acts of misfeasance or 
 malfeasance may be given in evidence, if they are immediately connected with the plain- 
 tiff's cause of action; not as a set-off; but to defeat partially or wholly the plaintiff's 
 claim by impeaching it ; e. j., in an action for work done, that it was done badly. Gogel 
 t. Jacoby, 5 Serg.-& Rawle, 117, 122. So in an action for the price of millstones, that the 
 plaintiff warranted them to be good, whereas they were bad. Steigleman v. Jeffries, 1 
 Serg. & Rawle, 477, cited 5 Serg. & RawterlSS. An account of sales being offered by the 
 plaintiff, the truth of which was material, the defendant shall not be allowed tovprove 
 another account of the same sales, by the Bame person, unless he avows an inteiftion to 
 impeach the first. Gilpins v. Consequa. 1 Pet: C. C. Rep. 85, 89 ; S: C, 8 Wash. C. C. 
 Bep. 184, 188, S. P. In assault and battery, a judgment obtained by the defendant against 
 the plaintiff, is pertinent to show the amount of the defendant's property ; but is inadmis- 
 sible to show his oppressive conduct towards the plaintiff. Jacoby v. Quier, 6 Serg. & 
 Rawle, 399. A sealed instrument, though void, may yet' be received to show the terms 
 of the contract, in an action of assumpsit, the parties having acted under the instrument. 
 Gouvemeur v. Elliott; 2 Hall's Rep. N. Y. S. G. 211. 
 
 We shall close this note with some additional sketches of modem cases, tending more 
 fully to illustrate the question of relevancy, as dbpending on the particular object with 
 which the testimony is introduced ; or its connection or disconnection with other facts in 
 a necessary chain of proof. See also pesS; notes 197 and 198. 
 
 Mrst, of cases wherein it will be received. On' the question whether G.'s property was 
 sufficient to satisfy a judgment and execution, previous incumbrances on the same prop- 
 erty are within the issue, and may be inquired of. . Norris v. Badger, 6 Cowen's Rep. 449. 
 That a father had presented slaves to some of bis daughters on their marriages, was held 
 admissible to show his intent on the delivering a slave to one of his daughters on a sub- 
 sequent marriage. Smith v. Montgomery's Adm'rs, 5 Monroe, 502, 603. On trial of an 
 indictment for a conspiracy in the abduction and forcible marriage of S. to H., the defend- 
 ants made a point that she was willing ; and the commonwealth was allowed to prove, in 
 reply, that, some months subsequent to the marriage, the defendant H. and his brother- 
 in-law forcibly took and carried her away after she had been released from the custody of 
 H. on Jmbeas corpus; and that she' resisted, escaped, was retaken, carried twenty miles, 
 confined and abused. This was objected to as irrelevant ; but admitted, although subse- 
 quent to the alleged offense, as going to refute the pretence of willingness. Respublica 
 V. Hevioe, before the Supreme Court of Pennsylvania, 1796, 3 Wheel. Cr. Cas. 505,507, 
 508. Where the defense of a prisoner is insanity, evidence of insanity before the offense 
 is committed is proper, without first proving insanity at the time of its commission. 
 Vance v. The Commonwealth, 2 Virg. Cas, 132: The language a person speaks is perti- 
 nent in determining his identity ; and where the plaintiff in trover for a negro, described 
 her as being Ango, and speaking the Angola dialect, the defendant was allowed to prove 
 that she spoke the Caromantee also, as one circumstance against her being of the Angola 
 breed, though not conclusive, because she might speak both languages. Martin v. 
 Maverick, 1 M'Oord, 24. On an issue whether a demand was made of possession, evidence 
 was held admissible for the defendant, that the plaintiff said he had agreed with the 
 defendant to let matters stand till the event of another lawsuit was known. Holt v. 
 Crume, Litt. Sel. Cas. 499, 500, It is relevant^ in a question of domicil, to prove the 
 party's ctmduct, going to manifest his intention, both before and after he has changed his 
 local residence. Richmond v. Vassalborough, 5 Qreenl. Rep. 896. On trial of an indict- 
 ment for knowingly receiving stolen goods, a general understanding between the thief 
 
8BC. III.] Msidence to be aonfined to Points in Isstte. 623 
 
 and receiver, that the one should steal and the other receive, is admissible in evidence as 
 to receiving the particular goods. M'NifF's Case, before Radcliff, Mayor, 1 C. H. Rec. 8. 
 A prisoner, in his examination before a magistrate, is not bound to answer any question ; 
 but, if he submits to answer, and answer falsely, the people may produce evidence to dis- 
 prove the answer; and it will then be strongly against the prisoner. Goldsby's Case, 
 before Ratjcliff, Mayor, 1 C. H. Rec. 81 ; Ball's Case, before Golden, Mayor, 4 C. H. Ree. 157. 
 Testimony arising after.is admissible to explain facts occurring before the commencement 
 of the action. M'Leod v. Johnston, Anth. N. P. Rep. 16. On a, charge for violating a 
 police law («. g. for delivering flour on board a vessel without inspection), the question is 
 one of intention ; and Kent, C. J., received testimony that the party accused, being sick, 
 
 ordered his clerk to have the flour in question inspected, which he omitted by mis- 
 *741 take. But neglect may be so *gross as to amount to a criminal intent. Sturges v. 
 
 Maitland, Anth. N. P. Rep. 153. When the question is whether a sale was bona 
 fide or not, the whole conduct of the party whose acts are assailed, before and after, as 
 well as at the time of the contract, may be inquired into. Reels v. Knight, 8 Mart. Lou. 
 Rep. (N. S.) 267. In an action for taking judgment in a cause in violation of a contract 
 and settlement between the parties, either party may show his original rights in respect 
 to the subject of the suit ; for so it would better appear whether they were settled. Tru- 
 ett v.. Chapin, 4 Hawks, 178; Where the question is to which of two credit was given, 
 the record of a pending suit against the other in favor of the plaintiff', is evidence for the 
 defendant. Head v. Taylor, Litt. Sel. Cas. 357,361,262. To repel the plaintiff''B evidencei 
 that he had never obtained any receipt for money, which the defendant had received to 
 pay over for him to his creditor, evidence that he demanded a receipt of the creditor and 
 received a paper as and for a receipt, was held admissible, though the witness knew not what 
 the paper was. Marvin v. Keeler, 5 Conn; Rep. 271. To repel proof that a letter directed 
 to A. was mailed, it is relevant to show that A. never received it. Litchfield v. Farming- 
 ton, 7 Conn. Bep. 100. On a justification in trespass for shooting a dog, that he attacked 
 the defendant, and was accustomed to attack people ; the plaintiff' gave in evidence, with^ 
 out objection, the quiet habits of the' dog. Clerk v. Webster, 1 Carr. & Payne, 104. And 
 proving that the defendant was in a situation wherein he might, and probably did, com- 
 mit the alleged trespass, it is relevant to prove that he was in that situation from another 
 motive, e. g., in order to arrest an off'ender. Prindle v. Glover, 4 Conn. Bep. 266. Where 
 the question was whether work was performed by the defendant for the plaintiff's accord- 
 ing to a written agreement, couched in general terms, e. g. to make a drawbridge and its 
 apparatus for the passage of vessels, evidence that these were constructed under the eye 
 and direction of the plaintiff's' agent, was held admissible. Hartford Bridge Company v. 
 Granger, 4 Conn. Rep. 143. On an issue awarded to try whether a bond and warrant for 
 $460, and a judgm.ent, execution and sale thereon in favor of a sou, within a few months 
 after he came of age, against his insolvent father, were not fraudulent as to creditors, the 
 latter off'ered to prove that, at the sheriff's sale, the son claimed several articles levied on 
 as his own ; thus.to infer that he had been paid for his services, for wliich it was insisted 
 by him the bond was given, by the property so claimed. Held relevant and admissible. 
 Eeiteuback v. Reitenback, 1 Rawle, 363. On the question of sanity at the time of execut- 
 ing the legal instrument, evidence of the state of the mind before and after, is admissible. 
 Grant v. Thompson, 4 Conn. Rep. 203. On issue upon a forcible entry and detainer, the 
 defendant, having entered peaceably, said to the relator, " it will not be well for you if 
 you ever come upon the premises again, by day or by night." Held that this was rele- 
 vant, arid might be left to the jury, from which to find a forcible detainer. People v. 
 Rickert, 8 Cowen's Rep. 226. 
 
 A witness testified that he had sworn on a former trial, from a memorandum not now 
 present, to the identity of a lottery ticket now produced; and another witness swore 
 that the ticket now produced, was the same as the one produced on the former trial ; and 
 the first witness, on going out and examining his memorandum, returned and said he had 
 no doubt of the identity. The whole was holden admissible. Barnum v. Barnum, 9 
 Conn. JEep. 242. On an issue joined on the fair execution of the will, between legatees 
 and the widow of the testator, who had bequeathed almost all his estate to persons other 
 than his widow, she off'ered evidence to show that the will was unfairly obtained, and, 
 among other things, proof that she brought her husband almost all his estate so 
 bequeathed, by the marriage. Held admissible, as being relevant to the issue. And the 
 court said that generally, on a question of this kind, the intrinsic evidence of the will 
 itself, arising from the unreasonableness or injustice of its provisions, taking into view 
 the state of the testator's property, family and the claims of particular individuals, is 
 competent and proper for the consideration of the jury. Patterson v. Patterson, 6 Serg. 
 and Rawle, 55, 56. On trial of an indictment for destroying the prisoner's vessel with 
 intent to prejudice the underwriters, evidence of its value is admissible, as showing 
 inducements to destroy or preserve it. U. States v. Johns, 1 Wash. C, C. Rep. 363. On 
 trial of a prisoner for the murder of his wife, there being no direct evidence against him, 
 liis previous adultery was allowed in evidence, among other circumstances, against 
 him, to repel the presumption of innocence arising from the conjugal relation. State of 
 .Connecticut v. Watkins, 9 Conn. Bep. 47. And an acknowledgment by D. that he was 
 
624 Of the Rdevancy of I*resumpUve Proofs. [Cli. x.' 
 
 indebted to A., was received as evidence that he was indebted to A. and B., they being 
 partners in trade, their debt being charged as such on bools; against D., and it not 
 *743 being *pretended in the course of tlie trial that D. owed A., individually, who was 
 the principal partner in the firm. Dwight v. Brown, 9 Conn. Bep 83, 88. To prove 
 that D. owed C. for the board of a workman in D.'s factory, evidence was received show- 
 ing that it was his course to procure and pay for the board of his other hands in the same 
 factory ; and this was held, of itself, prima facie evidence of D.'s having engaged the 
 board in question. Dwight v. Brown, 9 Conn. Rep. 83, 88. 
 
 Secondly, where testimony will be rejected as irrelevant. A pauper remembering that 
 when he was four years of age, he was in the-parish of A., is no evidence tliat he was born 
 there. Hex v. Trowbridge, 7 Barnw. & Cress. 253. The defendant having given proof of 
 a delivery to him of a deed from the grantor, the plaintiff, to rebut that, offered to show 
 that a few days before the delivery set up by the defendant, the latter broke open the 
 grantor's trunk, and got the deed with other papers, which the grantor ordered him to 
 put back. Held irrelevant. Hale v. Hills, 8 Conn. Rep. 39. Proving that money borrowed 
 was expended for the beneiit of a partnership, does not prove that it was loaned for their 
 benefit ; and is not per se, admissible for the purpose of inferring the latter. Harris v. 
 Wilson, 7 Wend. 57, 58, 59. In malicious prosecution, for accusing the plaintiff of steal- 
 ing diamonds, proof by the defendant tbat certain fellow-workmen of the plaintiff offered 
 to be searched for the articles about the time of the theft, was lield not admissible even to 
 show that the quo animo of the defendant, the plaintiff not being present, though he 
 afterwards refused to be searched. Riley v. Gourley, 9 Conn. Rep. 154, 161. When a 
 prisoner introduces evidence in support of his general good character, and the common- 
 wealth endeavors to impeach it, the witness who impeaches will not be allowed to speak 
 of conversations held with others subsequent to the commencement of the prosecution. 
 Carter v. The Commonwealth, 3 Virg. Cas. 169. To show the publication of a libel in a 
 newspaper, it is not admissible to prove placards in the doors of third persons, announcing 
 that the libel will appear, which does appear accordingly. The evidence is too remote. 
 The defendant should be connected with the placard. Raikes v. Richards, 2 Carr. & Payne, 
 563. To show that a grantor under whom the party claimed was of sound mind when he 
 executed the deed, and so was of ability to grant, a draft of the deed submitted to a ser- 
 geant of law who was a connection of the grantor, was offered in evidence. Held not 
 admissible. At most it merely showed the opinion of one of the family that the grantor 
 was sane. It was not a part of the res gestm ; for it was not shown that the grantor him- 
 self submitted the paper. It might have been submitted by others; and so was discon- 
 nected with the grantor,- and entirely irrelevant and made nothing. Ball's Lessee v. Ball, 
 Irish K. B. Tr. ;■ 5 George IV (1834), 2 Fox & Smith's Rep. 249, 267. In a prosecution for 
 bigamy against a woman, evidence of barbarous treatment by her first husband is inad- 
 missible. Walworth's Case, 1 C. H. Rec. 171. To defeat a sheriff's sale of land, evidence 
 of his resignation intermediate the levy and sale, being irrelevant, should be rejected. 
 Loffland v. Bwing, 5 Littell's Reports, 43, 45. To prove notice to an indorser, evidence 
 that the notary's clerk inquired where he lived, declaring he was going to serve him with 
 notice, and that after he had got information of the indorser's residence, he set out to go 
 there, is not admissible. Farmers' Bank of Lancaster v. Whitehill, 16 Serg. & Rawle, 89. 
 In an action on a note given to two persons, Lane and White ; held the defendant could 
 not be received to show that they at the date had another partner ; for the note was 
 recoverable in L. & W.'s name, though the debt was due to another partnership. Cotton 
 v. Lane, 1 Alab. Rep. 330. In an ejectment, it became material for the plaintiffs to show 
 that' L., under whom they claimed, had paid for the land. To repel this, the defendants 
 gave evidence that L. was insolvent. To answer that proof, the plaintiffs offered the will 
 of a third person, recognizing L.'s interest in certain land, and showing its value. This 
 was admitted in -the court below ; but held wrong on error, as it did not even appear that 
 the third person had any interest in the land. Pipher v. Lodge, 16 Serg. & Rawle, 214, 
 333. 
 
 In an action for breach of contract to convey land, the standing of the parties in life is 
 absolutely inadmissible in evidence, and cannot bo considered by the jury. Rowland v. 
 Dowe, 3 Murph. 347. N. B. The judge left it to the jury that the defendant was of high 
 standing, and therefore had a higher sense of the moral obligation of a contract than if he 
 had been in the lower ranks of life, which consideration should enhance the damages. 
 But on motion for a new trial, he retracted the charge, and consented to the motion, 
 Rowland v. Dowe, 2 Murph. 347, 349. Assumpsit for the price of hardware, furnished by 
 the plaintiffs to the defendants, to be used in building certain houses in Baltimore. 
 *748 The defence was that the plaintiffs were to take, '*in pay, a part interest in one 
 of the houses, when finished ; and the defendant produced an agreement in writing 
 between himself and certain third persons, in respect to building the houses. One answer 
 of the plaintiffs was, that the houses were not completed within the time stipulated ; and 
 they offered to prove that, at the time of the agreement produced being entered into, a 
 certain day for completing them was agreed on. But held irrelevant ; the plaintiffs not 
 being parties to the agreement proposed to be proved. Owings & Piet v. Low, 7 Har. & 
 John. 124. A man's promise to do an act in behalf of another is not evidence, pw se, that 
 
SBC. HI.] JEkidence to be confined to Points in Issue. 625 
 
 he is an agent for that purpose. Plant v. M'Ewen, 4 Conn. Rep. 545. In an action against 
 the master, for so putting the plaintiff (one of the sailors) in fear, that he dare not return on 
 phipboard, but remained on a desolate island, particular instances of abuse of the crew by 
 inferior officers of the ship, which were linown to the defendant, and not punished, were 
 held not admissible. Bennet v. Howard, 3 Day, 319. In an action for breach of contract, 
 evidence of fraud in the breach is inadmissible as a substantive ground of recovery. 
 Willings V. Consequa, 1 Pel. C. C. Rep. 303, 311, 312. To rebut direct evidence of paying 
 money on the debt of the defendant and others, evidence that the plaintiff's son (one of 
 the debtors) had funds to pay the whole debt, which he received from the other debtors, 
 who appointed him agent to pay the debt, is not, per se, admissible as proof that the 
 plaintiff paid, on his son's individual credit. Wheeler v. Packer, 4 Conn. Rep. 102. An 
 award between L., the owner of land, and the town of H., that certain public fishing 
 ground lies within L.'s boundaries, is no evidence for L.'s lessee, to establish a prescription 
 for a several fishery in L.'s boundaries against an inhabitant of H. It is irrelevant to 
 such an issue. Gould v. James, 6 Cowen's Rep. 369. The general character and habit of 
 a man to talie more than legal interest, as a lender of money, is not admissible on a ques- 
 tion of usury in a particular loan. Jaclison ex dem. Norris v. Smith, 7 Cowen's Rep. 717. 
 To show that the contract on which the plaintiff's claim depended, and which was maote 
 by the defendant with N., the defendant proved N.'s admission that he made a usurious 
 loan to the defendant the year before the loan on which the contract in question was given. 
 Held entirely irrelevant ; and that it should not be put to the j ury as evidence, though the 
 security for the first and last loans were in the same form. Jackson er dem. Norris v. 
 Smith, 7 Cowen's Rep. 717. In an action on a quantum meruitfor services in one business, 
 proof.of the value allowed for similar services in anotlifer business by a person other than 
 the defendant, nnder a special agreement, is not admissible to show the value. Robbins 
 V. Harvey, 5 Conn. Rep. 335. The question being whether a will was revoked, proof that 
 the testator, after having made his will, burnt certain papers taken from his desk, where 
 his valuable papers were usually kept, is inadmissible, though in connection with the fact 
 that the will was not to be found at his death. Jackson ex dem. Brown v. Betts, 9 
 Cowen's Eep. 208. Whether proof that the testator requested a oodicil to be drawn, be 
 admissible to repel presumptive proof that his will had been canceled? Qiiere. Jackson 
 ex dem. Brown v. Betts, 9 Cowen's Rep. 208 ; S. C. on error, 6 Wendell, 173. Evidence of 
 the relative situation of a testator's children in point of property is inadmissible to sup- 
 port the presumption of a revocation of his will, where there is no change in their circum- 
 stances between the time of making the will and that of the alleged revocation. Jackson 
 ex dem. Brown v. Betts, 9 Cowen's Rep. 308; S. C, on error, 6 Wend. 173? S. P. Where 
 the point in issue was notice to an indorser, a letter by which he said to the plaintiff's 
 agent that he would waive all defense under the Statue of Limitations, and another 
 empowering an attorney to appear for him in the suit on thejiote without process, were 
 both held irrelevant, as net tending to prove the notice. XJ. S. Bank v. Corcoran, 3 Pet. 
 Rep. 131, 133. On the point whether the defendant had confessed judgment to defraud 
 his creditors, it was offered that he had said : " If a man could not make both ends meet, 
 he ought to secure something for his family." The court said this was a sjinptom of 
 incorrect principles ; but had no relation to the issue. Though the defendant were proved 
 to be a knave, the plaintiff could not be affected by it. Whiting v. Johnson, 11 Serg. & 
 Rawle, 328. To prove that the plaintiffs had paid a note give by them for the defendant, 
 at ninety days, they showed a record of a j udgment against them on a note at sixty days. 
 Held irrelevant : but as the defendant did not object the irrelevancy, held no exception on 
 error. Coe v. Hutton, 1 Serg & Rawle, 398, 407. 
 
 The general principle, that a party who puts himself on one issue admits all the rest, 
 which therefore cannot be controverted by the proofs, is recognized by all the cases, 
 American as well as English. A protestando, concerning certain facts not directly 
 *744 affirmed or denied by the *particular pleading, is often prefixed to it, even at the 
 present day, the pleader protesting that facts do or do not exist : and there is some 
 old learning assigning to such an introduction its office and effect. Co. Litt. 134 b. Among 
 other things, it is said to be of no use unless the issue be either found for the party protest 
 ing (Br. Protestando, pi. 14 ; Co. Litt. 124 b ; Plowd. 376 b) ; or unless the matter protestea 
 could not have been pleaded. Id. ; and 2 Wm. Saund. 103 a. But it has long been treated 
 as a mere blank in the particular cause. Thus, in MuUiner v. Wilkes (3 Doug. 218, A. D. 
 1783), in assumpsit on a note, the defehdant pleaded that the parties made a corruptly 
 usurious agreement, in pursuance of which the note was given. The plaintiff protesting 
 that no such corrupt agreement was made, replied that the defendant did not, in pur- 
 suance of any such corrupt agreement made, nor for any such purposes as were in the plea 
 mentioned, make the note. On the argument of a special demurrer, taken because this 
 replication concluded to the country. Law, of counsel against the demurrer, insisted that 
 this was a complete denial of the whole plea. BuUer, J. : " You have protested against 
 the corrupt agreement ; and therefore, for the purposes of this replication, you admit it. 
 The plea contains only two parts, and you have put only one in issue." Lord Mansfield 
 inquired from Law what was the use of the protestation. Law said that he thought it 
 frivolous, and of no use ; that it was an exclusion of a conclusion in another action Bul- 
 
 VoL. L 79 
 
626 Of the Belevanoy of Presumptive Proofs. [ch. x. 
 
 ler, J. : " The use of a protestation is, to prevent the matter operating as an admission in 
 another cause ; but in the cause in which it is used, it admits the matter." And so the 
 court finally held. Id. 219, 220; 1 Chitt. PI. 590; and per Woodworth, J., in Briggs v. 
 Dorr, 19 John. Rep. 96, S. P. •' • 
 
 So in pleading a bankruptcy to justify a trespass de, bonis, &c., the plea contained dis- 
 tinct allegations of a trading and petitioning creditor's debt ; and then went on to state 
 that the plaintiff " became bankrupt.:" replication, protesting the trading and debt, and 
 denying that the plaintiff became bankrupt. This was held to admit the trading and debt ; 
 and the testimony at Nisi Prius was confined, by Lord Tenterden, C. J., to the act of bank- 
 ruptcy alone. Cotton v. James, 3 Carr. & Payne, 505. So, where the assignee of a chose 
 in action suing in B.'s name, to avoid a release by B. to the defendant, replied an assign- 
 ment and notice of this to the 'defendant before the release ; and the defendant rejoined, 
 protesting that no assignment had been made, and denying the assignee's interest gener- 
 ally — but saying nothing of the notice — the whole replication was held to be admitted. 
 Briggs V. Dorr, 19 John. Rep. 95. 
 
 One count of a declaration cannot be called in as proof by the defendant to contradict or 
 affect the evidence in respect of another. Thus, upon a declaration in assumpsit by a 
 landlord against his tenant for breach of good husbandry, where there was one count 
 which professed to be founded on a special written agreement, and a second upon an 
 implied contract ; it was held, that the defendant could not insist upon the first count as 
 evidence that a written contract existed, so as to impose upon the plaintiff the necessity of 
 producing it. Per Le Blanc, J., Lancaster Spring Ass., 1 Stark. Ev. 295. And this is 
 especially so, if a nolle prosequi be entered on the count sought'to be used as evidence. 
 Brown v. Feeter, 7 Wend. 301. But one count is, in no sense, material to the other, unless 
 there be a reference by one to another ; and then not, if the reference be to a mevb formal 
 matter, as the day, &c. Id 304, 305. A noUe prosequi on a count does not confess the plea 
 to that count ; its only effect is to stnke the count and plea from the record. Thus, two 
 counts — one on a note, the other for money, &c. — actio non^ accremt. &c., to the first count, 
 and nolle prosequi as to that — do not operate to confegp the plea ; but the fact pleaded may 
 be contested, as if it never had been on the record. Keeler v. Burtine, 13 Wend. 1 1 0. And 
 Marshall, C. J., in Hughes v. Moore (7 Cranch, 176), means no more than this. 12 Wend. 113. 
 
 The same things hold of a notice of eet-off, and of a bill of particulars under it, which is 
 deemed a parb»of the notice. Harrington v. Macmorris, 5 Taunton, 238 ; S. C, 1 Marsh. 33. 
 
 We had occasion in the last note to notice, for another purpose, the right of double 
 pleading, i. e. appending other pleas to the general issue, or other plea — or giving notice 
 of special mattef, the former of which is umversally allowed,i and the latter in several 
 states. We mention the same cases here, for the purpose of observing that, as in a declara- 
 tion or notice of set-off, one substantive count or part cannot be averred against' the 
 other, or in any way influence it as matter of admission or evidence, so Avhere several 
 pleas are pleaded, an express or implied admission in one still leaves the other in its full 
 abstract force, although such admission may be direct and of the verv fact denied 
 *745 by the other. Grills v. Mannell, Willes, 878, 380, per Willes, J. ; Kirk v. *Nowill, 
 1 T. R. 118, 125. In the last case, BuUer, J., said the pleas were as unconnected 
 as if they were on separate records. Id. 125. The same doctrine is recognized in Har- 
 rington V. Macmorris, supra; and by various American cases. Murray v. Boissier, 10 
 Mart. Lou. Rep. 393, 300 ; Cornell v. Hope Insurance Company, 3 Id. (N. S.) 223, 3-37 ; al- 
 ley V. Jennes, 2 N. H. Rep. 89 ; Alderman v. French, 1 Pick. Rep. 1,4; Whitaker v. Freeman, 
 1 Dev. 271 ; Vaughan v. Havens, 8 John. Rep. 109 ; Root v. King, 6 Cowen's Rep. 613, 024. 
 
 The same rule holds as between a plea aijd a notice of special matter. Accordingly 
 where now est factum was held to admit the evicticm, in covenant for quiet enjoyment, 
 the circumstance that a notice of special matter of defense was attached, denying the 
 eviction, was allowed no weight as taking away the admission by plea. Kano v. Sanger, 
 14 John. Rep. 89. It is the same, though there be a stipulation that all special matter 
 may be given in evidence by the defendant, the same as if pleaded. Dale v. Roosevelt, 9 
 Cowen's Rep. 807. 
 
 So it was held tjiat a judgment in favor of one defendant, on the plaintiff's demurrerto 
 a plea in bar, was no admission that a separate plea of the same matter by another de- 
 fendant was true, Lansing v. Montuiomery, 3 Johu. Rep. 383. 
 
 The notice in bar. which comes in place of a special plea, leaves the matter in the 
 declaration still more open than the latter ; for, when considered by itself, no implied ad- 
 mission can be imputed to it within the principle we are considering ; whereas, the special 
 plea, though independent of its companions, yet relative to the declaration, must be con- 
 strued to admit, by its silence, what it does not expressly deny. The notice is clear of 
 this imjilication, whether of special matter or a set-off. Vaughan v. Havens, 8 John. Rep. 
 109 ; Morgan v. Boone, 1 J. J. Marsh. 685, 586. In New York, these notices come in under 
 the general issue, \)eing allowed by statute ; and bo, it is presumed, generally, in other 
 states. 
 
 It is also well to observe, while on this head of points in issue, that these notices are 
 construed benignly and liberally ; and arc much in ease of the pleader where the intro- 
 duction of his defense is attended with difficulty under the ancient forms. Thus, notice 
 
SEC. in.] Msidence to be confined to Points in Issue. 627 
 
 of " divers judgments outstanding against the plaintiff, which were a lien, &c.," was held 
 sufficiently certain without going into particulars. Chamberlain v.Gorham, 20 John. Eep. 
 746. So, that the defendant would justify under a warrant, without stating its contents. 
 Linsley v. Keys, 5 John; Rep. 133- And see 8 John. Bep. 457. It is enough if it appears 
 that, under all the circumstances of the case, the plaintiff would not be taken by surprise. 
 Chamberlain v. Gorham, ut supra. 
 
 In Pennsylvania, it seems, thfe plea of payment may be interposed, with a statement of 
 special matter which answers to the New York general issue and notice, and both seem to 
 enjoy the same security against the imputation of implied admissions. Schlatter v. Elter, 
 13 Serg. h, Rawle, 36 ; Roop v. Brubacker, 1 Rawle, 304, 308, 309, and cases there cited ; 
 Steigleman v. Jeffries, 1 Serg. & Rawle, 477 ; Heck v. Shener, 4 Id. 249 ; HoUingsworth v. 
 Ogle, 1 Dal. 257,258, per M'Kean, C. J,; per Duncan, J., in Roth v. Miller, 15 Serg. & 
 Rawle, 100, 104, 105. The plea of performance in an action of covenanf seems there to 
 have the same effect, as to legal questions, as it would have in common-law courts ; but 
 these courts there receive matters of defense under this plea which would operate against 
 the specialty in chancery on bill filed or answer put in. And so under a plea of paj^ent 
 to a bond. Neave v. Jenkins, 3 Yeates, 107, 108 ; Swift v. Hawkins, 1 Dal. 17 ; Lewis v. 
 Morgan, 11 Serg. & Rawle, 234, 236. 
 
 A similar practice seems to prevail in Kentucky, at least in respect to the plea of noH 
 est factum, with leave, &c. Peebles v. Porter, 7 Monroe, 609, 610. 
 
 In Massachusetts, a peculiar effect is given to a plea of justification in slander. It is 
 there held tliat it admits the speaking of the slanderous words, al though preceded by the 
 general issue. Jackson v. Stetson, 15 Mass. Eep. 48. But this is admitted to be anomar 
 lous ; and the general rule prevails in that state as to pleading in all other actions. 
 Alderman v. French, 1 Pick. 1, 4. And sfee Root v. King, 6 Cowen's Rep. 618, 614. The 
 exception does not prevail in New Hampshire (Cilley v. Jennes, 2 N. H. Rep. 89), and it is 
 denied to be law by Chief Justice Marshall (Wliitaker v. Freemen, U. S. C. C. N. C. 1 
 Dev. 271); who reiterates the above cited strong language of Buller, J., in its application 
 to actions for slander, as well as to all others. 
 
 Bating the,above questions of construction, and the above anomalies, the application of 
 the general principle is. usually clear of all difficulty. We shall, therefore, close this 
 note with a few modern instances. * 
 
 The general issue, or other plea in bar, admits the character in which the plaintiff 
 *746 sues to be *9,s it is set oat in the declaration ; as where he or they are described in 
 the declaration to be overseers of the poor of a certain town (Carpenter & Rose, 
 overseers, &c. v. Whitman, 15 John. Rep. 208); the proprietors of -Kennebec Purchase 
 (Prop, of Ken. Purch. v. Call, 1 Mass. Rep. 483, 485); the successors Of tho treasurer to 
 whom the bond was given (per Gantt, J., in State Treasurers v. Wiggins, 1 M'Cord, 468, 
 470; executor or administrator (Fraux v. Fraux, 1 Pennington, 166; Smith, Adm'r of 
 Walker v. Ludlow, Anth. N. P. Rep. 127) ; held in detinue, where the plaintiff declared 
 as administrator de bonis non, on the possession of the testator (Floyd v. Breckenridge, 4 
 Bibb. 14, 17) ; and as an ordinary adminisfrator ; and said the admission is conclusive 
 (Henderson's Adm'r v. Clark, 4 Bibb, 391, 892) ; and as an administrator aim testamento 
 aanexo (Thomas v. Tanner, 6 Monroe, 52, 59). The defendant cannot, on this plea, ques- 
 tion the right of the plaintiff to come in this character, even though the court granting 
 his letters of probate or administration be a foreign court; and therefore have no juris- 
 diction of letters to be used in the state where suit is brought. Champlin v. Tilley, 3 
 Day, 303, 305, 306. But it was agreed that if the plaintiff declare in detinue on his own 
 possession, he must prove his letters in the ordinary way, or show possession in himself. 
 Floyd V. Breckenridge, Henderson's Adm'r v. Clark, and Thomas v. Tanner, ut supra. 
 So this nlea admits that the plaintiff is a foreigner, as he alleges ; and is therefore quali- 
 fied to sue in the United States courts (De Wolf v. Rabaud, 1 Pet. S. C. Rep. 476, 498) ; 
 or that he is, as he alleges, a citizen, and therefore entitled to proceed in a particular ■ 
 mode allowed by statute to citizens alone (Shivers v. Wilson, 5 Harr. & John. 130) ; or 
 that he is, as alleged, a guardian (Harper v. Distrehan, 2 Mart. Lou. Rep. (N. S.) 389), 
 So, where the plaintiffs sue as a corporation, we have seen in the Proprietors of the Ken- 
 nebec Purchase v. Call (ut supra), that a plea of the general issue admits them to be a 
 Corporation, and supersedes the necessity of proving their charter or character at the trial. 
 This has been repeatedly holden by other courts (Conrad v. The Atlantic Insurance Com- 
 pany, 1 Pet. S. C. Rep. 388, 450 ; Whittington v. Farm. Bank, &c., 5 Har. & John. 489 ; 
 and this, even in respect to a foreign corporation. Society for the Propagation of the 
 Gospel in Foreign Parts v. Pawlett, 4 Pet. 480, 501 ; Taylor v. Bank of Illinois, 7 Monroe, 
 676, 584. It is otherwise, however, in the state of New York, even in respect to a domes- 
 tic corporation and whether it sues on a contract or tort. Jackson ex dem. The Trustees 
 of the Union Academy of Stone Arabia v. Plumbe, 8 John. Rep. 378 ; Bill v. Fourtlji 
 Western Turnpike Company. 14 John. Rep. 416 ; per Thompson, Ch. J., in The Dutchess 
 Cotton Manufacturing Company, 14 John. Rep. 238; The Utica Bank v. Smalley, 2 
 Cowen's Rep. 770 ; The Bank of Auburn v. Weed, 19 John. Rep. 300 ; The Farmers' & 
 Mechanics' Bank v. Rayner, 2 Hall's Rep. N. Y. S. C. 195. A fortiori as to foreign corpo- 
 rations. Williams v. The Bank of Michigan, 7 Wend. 540. But now, by 3 R. S. 458, § 3, 
 
628 Of the Helevancr/ of Presumptive Proofs. [ch. x. 
 
 this rule, or rather perhaps exception, is abolished, as to domestic corporations, though 
 left in full force as to foreign. 
 
 In assumpsit, by the assignee of an insolvent, the general issue was held not to super- 
 sede the necessity of proving that the plaintiff was assignee. .Best v. Strong, 3 Wend. 
 319. And so of an insolvent's trustees. Winchester v. The, Union Bank of Maryland, 
 g Gill & John. 73, and Houck v. Crouse, cited Id. 77, 78. And held, that where sealed 
 contracts are made negotiable by statute, yet non est factum does not admit the assign- 
 ment. McMurtry v. Campbell, 1 Hamm. Hep. 262. 
 
 The plea of non est factum to an action of debt or covenant puts the execution of the 
 deed alone in issue ; and the plaintiflF need not prove any averments, except such as relate 
 to the validity of the deed. Under this rule, it was held that in covenant to pay on 
 receiving one-third of the plaintiflF's dower, non est factum admitted that the condition 
 was fulfilled, and dispensed with proof of this at the trig,l. Gardner v. Gardner, 10 Johns. 
 Eep. 47. So of eviction, alleged in covenant for quiet enjoyment (Kane v. Sanger, 14 
 John. Rep. 89); so, of assets, in covenant against an 'heir, the declaration averring assets 
 (Woodford's Heir v. Pendleton, 1 Hen. & Munf. 303) ; so that the bond declared on is not 
 Voi(rable as being given contrary to certain legislative provisions ; for^his must be pleaded 
 specially. The Commissioners of the Poor for Holly District v. Hanion, 1 Nott & il'Cord, 
 554, 555. So (in some states where an equitable defense is admissible) non e^ factum 
 admits that the bond was obtained without fraud or misrepresentation, and upon full con- 
 sideration, which has not failed, &c. ; and if the contrary be intended as a defense, it must 
 be specially pleaded, or notice must be given. Adams v. "Wylie, 1 Nott & M'Cord, 78 ; 
 Bollinger v. Thurston, 3 Eep. Const. Ct. 447. So this plea admits the amount averred to 
 have been awarded, in an action upon an arbitration bond. Graham v. Allen, 3 Nott 
 *747 *& M'Cord, 493. So non est factum to a constable's surety bond, though with 
 notice that the plaintiff (relator) had been satisfied by bidding in property, does 
 ijot warrant evidence of declarations made by him, calculated to lull the constable into 
 security ; the relator thus bringing the damage upon himself, and leaving the constable 
 free from blame. The People v. Holmes, 5 Wend. 191. So, in an action by the lessee 
 against his lessor on the covenant of title, non est factum admits the want of title 
 (Barney v. Keith, 6 Wend. 555) ; in covenant for money, alleging non-'payment and 
 averring performance of conditions precedent, as the procuring and delivery of patents, 
 &c., it admits the non-payment, and that the condjtions were performed (Dale v. Roose- 
 velt, 9 Cowen's Rep. 307 ; Courcier v. Graham, 1 Hamm. Bep. 830, 345, S. P.) ;' in covenant 
 averring notice, it admits the notice (Thomas v. Woods, 4 Cowen's Rep. 173, 185); in 
 debt on a bail bond assigned by the sheriff, it admits that it was legally assigned (Soloman 
 V. Evans, 3 M'Cord, 274 ; in coveinant for non-delivery of slaves on demand, it admits the 
 demand (Mitchell v. DeGraffenreid, 1 Harp. Bep. 450) ; in debt on an appeal bond, it 
 admits all the averments as to matters of record, non-payment, &c. (Legg v. Robinson, 
 7 Wend. 194 ; per Nelson, J., in Hamilton v. Averill, 11 Id. 624) ; and the want of title as 
 well as the eviction, &c., in an action on a covenant of warranty (Cooper v. Watson, 10 
 Wend. 302) ; but not any fact which is not averred ; as (in an action on a replevin bond) 
 that the writ de ret. hob. was returned unsatisfied, this not being averred. Cowdin v. 
 Stanton, 13 Wend. 130. 
 
 A plea of discljiimer in a real action admits the demandant's title (Prescott v. Hutchin- 
 son, 13 Mass. Rep. 439) ; the general issue in a writ of entry admits the defendant's 
 tenancy of the freehold (Kelleran v. Brown, 4 Mass. Rep. 443; Higbee v. Rice, 5 Mass. 
 Rep. 844 ; Pray v. Pierce, 7 Id. 381 ; Alden v. Murdock, 13 Id. 259 ; the ouster (Id. ; 
 Steven v. Winship, 1 Pick. 318) ; the tenant's possession (Mills v. Pierce, 2 N. H. Rep, 9) ; 
 in dower, denial of the marriage or seizin, admits all other material allegations ; as a 
 demand of dower, &c. (Ayer v. Spring, 10 Mass. Rep. 80) ; and a denial of marriage 
 admits seizin. Fitzgerald v. Garvin, Charlt. Reports, 281, 383. In formedon in the 
 descender, non demsaiiit admits all the material facts in the count except the devise 
 (Dudley v. Sumner, 5 Mass. Rep. 438) ; and in a writ of right, the mise precludes all 
 evidence of non-tenure. Boiling v. the Mayor, &c., of Petersburgh, 8 Rand. 563. 
 
 In replevin, non cepit in alio loco, does not admit the taking as laid. Williams v. 
 Welch, 5 Wend. 390. 
 
 A plea of justification in an action of malicious prosecution, admits the proceedings sot 
 out in the declaration ; and throws the onus upon the defendant, even of showing proba- 
 ble cause. Morris v. Corson, 7 Cowen's Rep. 381. In replevin, a plea of property out of 
 the plaintiff admits the taking (Hume v. Gillespie, 8 Monroe, 184) ; and non eepit admits 
 property in the plaintiff. Harper v. Baker, 3 Monroe, 421. A general plea of tender to 
 two counts, one on an account stated, and another on a guantum meruit, is conclusive 
 that a claim for both causes exists, and cannot bo aflorwarcfs limited to an account stated, 
 or to a special agreement for a sum certain. Huntington v. The American Bank, 6 Pick. 
 340. A plea of payment to an action of assumpsit admits the cause of action (Haley 
 V. Callar, 1 Alab. Rep. 63) ; to an action upon an award, it admits the awai-d (Frajix v. 
 Fraux, 1 Penning. Rep. 166); to an action on judgment, it admits the judgment. Ray- 
 mond V. Wheeler, 9 Cowen's Rep. 295. Liberum tenementum conclusively admits the 
 trespass, and the plaintifTs possession of the close (Singleton v, Millet, 1 Nott & M'Cord, 
 
SEC. ni.] JSkidence to be confined to Points in Issue. 629 
 
 355; Caruthv. Allen, 3 M'Cord, 236); solvit ad diem admits the execution of the bond 
 (Sandford v. Hunt, 1 Carr. & Payne, 118) ; and on an issue of property or not property, 
 the taking cannot be questioned. Hume v. Gillespie, 3 Monroe, 184. A plea of perform- 
 ance to an injunction bond admits the dissolution of the imunction, and all other facts 
 ■well pleaded (Harrison v. Park, 1 J. J. Marsh. 170, 173) ; and a plea of set-off admits the 
 plaintiff's demand. Morgan v. Boone, 1 J. J. Marsh. 585, 586. An averment that a bond 
 is discharged, admits that it was executed (Naba v. Carlin, 3 Lou. Kep..(N. S.) 873) ; and 
 an answer insisting on payment admits the allsgation in the petition, of goods sold to 
 the defendant. Akin v. Bedford. 4 Lou. Rep. (N. S.) 615. 
 
 But it should be noted that a plea, though it admits the cause of action, does not 
 admit its amount; and so of amounts admitted by affirmative pleading in any stage, as 
 by replication, &c., unless the precise sum be made material by the pleadings. In this 
 respect, the affirmative plea is like'a judgment by default or on demurrer, where damages 
 must still be assessed. Waggener v. Bells, 4 Monroe, 7, 11, 12. A good instance is the 
 plea of payment in an action of assumpsit. Haley v. Callar, 1 Alabama Bep. 68. 
 
 To the usual plea of an insolvent discharge, the replication denied that the defendant 
 was discharged as he alleged. Held, that it was not necessary to show jurisdiction, as 
 this was admitted by the replication ; and so was the filing of the petition, the same as 
 any other fact not denied. Andrews v. Pledger, 4 Carr. & Payne, 381 ; S. C, 1 Mood. & 
 Malk, 508. The replication of a new promise to a plea of infancy admits the infancy. 
 Qoodsell V. Myers; 3 Wend. 479. It was held that where the defendant went to trial 
 without a rejoinder, the facts stated in the replication should be taken as admitted, 
 although the attention of the court and jury was not called to the state of the pleadings ; 
 and there being a verdict for the defendant, a new trial was, for that reason, granted. 
 Porter's Adm'rs v. Kennt, 1 M'Cord, 205. Quere. Most courts would probably have 
 amended the issue and retained the verdict. To a plea of set-off, and that the plaintiff 
 got a transfer of the note to avoid the set-off, a replication that the note was the plaintiff's 
 property was held to admit both the set-off and the fraudulent transfer. Savage v. Davis, 
 7 Wend. 323. The plea of non-tenure to an avowry for rent, setting up a seizin and 
 deducing title, admits the seizin and demise. Bloomer v. Juliel, 8 Wend. 408. Biens in 
 arrere admits the defendant's title. Id. To an avowry and cognizance setting forth a 
 lease and rent, by two defendants, averring that B., one of the defendants, distrained- as 
 bailiff of A,, the other; the plaintiff pleaded, simply denying that B. was bailiff; and 
 held that this admitted the lease and the amount of rent, as set forth. Solomon v. Har- 
 vey, 1 Nott & M'Cord, 81. Qui non negat, fatetur, is the maxim in respect to pleading. 
 All material allegations not denied are admitted. Thus, where in trespass de bonis asper- 
 tatis the defendant pleaded that he assisted the sheriff in taking the goods in execution 
 against the plaintiff; and the plaintiff replied a previous ea. sa., an arrest and a voluntary 
 escape, and that tlie defendant then sued out the execution in question ; and the rejoinder 
 was that this execution was sued out by another, and not the defendant ; this was held to 
 admit *the escape and other material allegations, except that this execution was sued out 
 by the defendant. Cheever v. Mirrick, 3 N. H. Kep. 376, 377. On replication setting 
 forth a code of by-laws and alleging a breach, an issue.on the breach admits the by laws. 
 Union Bank of Maryland v. Bidgley, 1 Har. & Gill's Rep. 324. In assumpsit, the defend- 
 ant pleaded a set-off of $3,500 ; replication that the defendant was in debt to the plaintiff 
 $3,000, and paid the plaintiff |3,500 in part thereof; rejoinder, he had not owed the 
 $3,000 ; the plaintiff has.the onus ; for he has admitted by the replication the payment of 
 the $3,500. Waggener v. The Bolls, 4 Monroe, 7, 11. (If the plaintiff reads a part of the 
 defendant's answer in evidence without objection, the facts stated in the answer and so 
 read, may be taken as proved, though the answer being denied in the reply could not 
 have been read if objected to ; People v. Norton, 5 Seld. 176. Under an answer contain- 
 ing a general denial of all the allegations of the complaint, which is for labor and services, 
 evidence of payment or partial payment is inadmissible ; McKying v. Bull, 16 N. Y. 397. 
 Where the complaint, on a promissory note, alleges that defendants made the same and 
 have not paid it, the answer alleging payment forms a direct issue; so held under the 
 code as it stood in 1848. Van Giesen v. Van Giesen, 10 N. Y. 316. An award *s also new 
 matter which cannot be proved unless it is set up in the answer; Brazill v. Isham, 13 N, 
 Y. 9, 17. So is the defense of a former suit pending ; Gardner v. Clark, 31 N. Y. 399. 
 Partial defenses may be pleaded ; 11 N. Y. 347 ; 16 N. Y. 397. If plaintiff reads a part of 
 defendant's answer Jn proof of a fact stated in it, then defendant has a right to insist that 
 the whole answer be read and taken together ; Gildersleeve v. Mahoney, 5 Duer, 383, 
 In pleading a bankrupt's discharge it is held necessary, to show that the court had juris- 
 diction to grant it, by averring the existence of the facts on which jurisdiction depended ; 
 5 Hill, 337 ; 6 Id. 607. But when the discharge is offered in evidence, jurisdiction to grant 
 it should be presumed until the contrary appears; Ruckman v.' Cowell, 1 N. Y. 505. 
 Where the discharge is given in evidence without having been pleaded, evidence is admis- 
 sible to impeach it for fraud. Id. 507. 
 
 The form of the issue indicates the proof which is admissible under the pleadings ; if 
 the complaint alleges that defendants opened a ditch in the highway, and 'that plaintiff 
 without any fault or want of care on his part fell into it, and the answer denies that plain- 
 
630 Of the Relevancy of Presumptive Proofs. ^ [ch. x. 
 
 *'748 * Proof ofjoth,er contracts, <&c., when admissible. It is consideredj in 
 general, that no reasonable presumption can be formed as to the- 
 making or executing of a contract by a party with one person, in conse- 
 quence of the mode in ■which he has made or' executed similar contracts with 
 other persons. Still less can a party be affected by the declarations, con- 
 duct, or dealirtgs of strangersv Transactions which fall within either of 
 these classes, are termed in law res inter, alios acta, and evidence of this 
 description is uniformly rejected. 
 
 Where the question between a landlord and Ris tenant is, whether the 
 rent was payable quarterly or half-yearly, it has been held irrelevant, to 
 consider what agreements subsisted between the landlord and other ten- 
 ants, or at what time their rents would become due. (1) So, where 
 
 tiff without any fault or want of care on his part did fall therein, the issue involves the 
 fact of his falling into it, and plaintiff's care or want of care. Wall v. Buffalo Water 
 Works Co., '.8 N. Y. 119; and if the complaint he for work and labor performed, and 
 goods sold and de ivered, claiming $197.25, and the answer alleges that the goods were* 
 rarnished, and the services rendered under an agreement at stipulated prices, amounting 
 to $181.00, but that they were worth no more than $173.00, the defendant may show the 
 work done under a contract, and that there were defects in it ; Maffatt v. Sackett, 18 
 N. Y. 532.) 
 (1) Carter v. Pryke, Peake, 95. And see Spenceley v. De Willott, 7 East, 108. 
 Note 197.- — In an action for a vexatious suit, other actions for other causes, brought by 
 the defendant against the plaintiff, are inadmissible in evidence. Bay v. Law, 1 Pet. C. C. 
 Rep. 207, 209. And, to mitigate dama^^es in assault and battery, a. previous provocation 
 is inadmissible, unless it immediately precede the assault ; as a previous libel published 
 by the plaintiff of and concerning the defeudnnt (Ijee v. Woolsey, 19 John. Eep. 319) ; or 
 a slander against the defendant's ^ster ( Avery v. Ray, 1 Mass. Bep. 12) ; or that the par- 
 ties were on bad terms, and the plaintiff^ had, on previous days, used provoking and 
 abusive language of, and to the dd'endant. Rawlings v. The Commonwealth, 1 Leigh's 
 Eep. 581. Nor shall the defendant, in an action tor a libel, be allowed to show that he 
 was previously libeled by the plaintiff, unless the last libel purport to be an answer to the 
 first, Beardgley v. Maynard, 4 Wend. 357 ; Gould v. Wend., 12 Wend. 13. 
 
 On tto other hand, to enhance the damages ia assault and battery, the plaintiff cannot 
 sliow a suit brought by the defendant against him on purchased notes, with a view to set 
 off his judgment against the plaintiff's. Jacoby v. Guier, 6 Serg. & Rawle, 299. 
 
 Action of assault against a music master of a cathedral, for beating a boy, one of the 
 choristers, for singing at a cateh club, which might be injurious to the performance in 
 the cathedral. The plaintiff belonged to the school. The defendant justified, in that he 
 forbade the plaintiff going" to the catch club, as an injurious exercise ; and being dis- 
 obeyed, he moderately corrected him ; and would have justified upon the practice of tho 
 like schools in other parts. But this evidence as to other practice was held not admissi- 
 ble. It was irrelevant. The master, having no jurisdiction out of his school, could not 
 thus justify tlie correction. Newman v. Bennett, 3 Chitt. Rep. 195. 
 
 Two signing a joint note is, per «e, no evidence of their being partners. Hopkins v. 
 Smith, 11 John. Rep. 161. And where the question is upon fraud in one transaction, evi- 
 dence of fraud in others, totally disconnected, is Inadmissible. Somes v. Skinner, 16 
 Mass. Rep. 300. Where the defendant claimed under the devisor's will of 1817, which 
 the plaintiff (the heir) soug-ht to impeach, by reason of the testator's incapacity, the 
 defendant was not allowed to show that the plaintiff had, in 1814, purloined a previous 
 will of I he testator ; for that did not bear on the now point of inq,uiiy. Den ex dem. Ste-- 
 vens V. Van Cleve, 3 Wash. C.C. R. 262, 265. In an action against the owners, for negli- 
 gently managiiig a sliip, so that she was wrecked, and the plaintiff lost his passage, an- 
 other act ofr negligence not bearing on the wreck, and which could not possibly cause it, 
 was held irrelevant, viz : neglect at an earlier part of the day. Matton v. Nesbit.l Carr. 
 & Payne, 70. In an action on a note purporting to be witnessed by R, the genuineness 
 of which attestation was in issue, the defendant was not allowed to show that D., a for- 
 mer holder of this note, had forged another note with E.'s name as a witness ; nor that 
 D. wrote the body of this note. Keith v. Taylor, 8 Verm. Rep. 153. In slander, under a 
 plea of justification that the plaintiff was perjured, the court refused to receive testimony 
 that the plaintiff', when not under oath, contradicted what he swore in committing tho 
 supposed perjury, until it was first j roved he had sworn false by other testimony ; hold- 
 ing that the declaratirn might then be received to show knowledge and corruption. East- 
 burn V. Stephens, Litt. Sel. Cas. 83. (^uerc. Was it not admissible in either view X Id 
 slander, for accusing a scUpol of filth and bad food, which was sought to be justified aa 
 true ; to rebut the proof of justification, held that the plaintiff could not inquire of tho 
 treatment of boys at any other particular school, nor the manner of their education. 
 Both are out of the issue. Boldron v. Widdows. 1 Carr. & Payne, 65. See note 106. 
 
SBC, III.] Miidence to be confined to Points in Issue. 631 
 
 *749 the question *waa as to the quality of beer to be furnished by 
 plaintiff to the defendant, it was held, that evidence could not be 
 admitted of the quality of beer supplied by the plaintiff to othei- pei'sons.(l) 
 In like manner, in an action of trover, brought by the assignees of ai bank- 
 rupt against a creditor, to recover property alleged to have come into the 
 possession of the defendant after an act of bankruptcy, the fact that other 
 creditors, who had received goods from the bankrupt before the delivery to 
 the defendant, had returned them to the assignees, after the fiat had been 
 issued, was held not to be admissible in evidence against the defend- 
 *'750 ant. (2) So, in an action *against the acceptor- of a bill of exchange, 
 where the defense was that the acceptance was a forgery, evidence 
 offered on the part of the defendant that a collection of bills, bearing his 
 forged signature, had been in the plaintiff's possession, and that some of 
 such bills had been circulated by him, was held to be inadmissible, without 
 distinct proof that the bill in suit had formed part of the collection. (3) 
 
 Again, upon the trial of an issue whether smoke, issuing from the manu- 
 factory of A., was prejudicial to the premises of B., evidence that A. had 
 paid money to C, the owner of premises adjacent to those of B.,for alleged 
 damage occasioned by the smoke, is not admissible. (4) 
 
 Proof of other transactions to show knowledge. On the other hand, it 
 may frequently be very proper, and in some eases absolutely necessary, to 
 look beyond the transaction which is the immediate subject of inquiry, into 
 previous transactions, for the purpose of making a just inference as to the 
 knowledge of the parties, their motive or intentions. (5) The case of Gib- 
 son v. Hunter,(6) affords an instance of this kind. That was an action 
 by an indorsee against the defendants, as acceptors of an instrument purr 
 porting to be a bill of exchange ; a question arose on the third count, which 
 stated the bill to be payable to bearer, under the following circumstances : 
 It appeared in evidence that the name of the person mentioned as payee 
 was merely fictitious, but this fact was not known to the plaintiff; and for 
 the purpose of showing, that the defendants at the time of their acceptance 
 knew the name in the bill to be fictitious, or that the defendants had given 
 authority to the drawer to draw the bill in question payable to a fictitious 
 person, the plaintiff proposed to prove that the defendants had given a 
 general authority to the drawer to draw bills of exchange- upon them, to 
 be made payable to fictitious persons, and evidence to this effect was pro- 
 duced ; the counsel for the defendants objected to this evidence, on the 
 ground that it had no relation to the particular bill in question, and that 
 the facts of any particular transaction could not legally be inferred from 
 circumstances which applied wholly to other transactions. Lord Kenyon, 
 C. J., who tried the cause, admitted the evidence ; upon which the counsel 
 for the defendants tendered a bill of exceptions. The Court of King's Bench 
 gave judgment for the defendant in. error. A writ of error was then 
 brought in the House of Lords ; and the question on the admissibility 
 *751 of the evidence was referred to the *judges. On this question there 
 
 (1) Holoombe v. Hewson, '2 Camp. 391. For other exampleB, see Boldron v. Widdows, 
 1 C. & P. 65 ; Smith v. Wilkins, 6 C. & P. 180 ; Delamotte v. Lane, 9 C. & P. 361 ; Bar- 
 den V. Keverberg, 8 M. & W. 61. 
 
 (2) Backhouse v. Jones, 6 N. C. 65. 
 
 (3) Griffits V. Pa7ne, 11 A. & E, 131. See, also, Viney v. Bars, 1 Esp. 293 ; Balcetti v. 
 Seranj, 1 Peake N. P. C. 142 ; Thompson v. Moseley, 5 C. & P. 502 ; 1 Hill, 287 ; Mathew 
 V. Lord Maidstone, 86 Eng. Com. Law, 373. 
 
 (4) Tennant v. Hamilton. 7 CI. & Fin. 123. The question arose as to the cross-examina- 
 tion of a witness in the Court of Session in Scotland, and the House of Lords decided 
 that the question was incompetent, as leading to a new collateral inquiry, not affecting- 
 the issue, or testing the credit of the witness. 
 
 (5) See infra as to the proof of knowledge in issuing counterfeit money. 
 
 (6) 2 H. Bl.' 288. 
 
632 Of the Relevancy of JPresumptive Proof e. [ch. x. 
 
 was a division among the judges ; but the majority of them, together with 
 the Lord Chancellor, and Lord Kenyon, C. J., being of opinion that the 
 evidence was properly received and left to the jury, the judgment below 
 was affirmed.(l) 
 
 (1) Note 198.^See ante, jiote 196, and note 206. (If the maker draws the note payable 
 to a fictitious person, and negotiates it with that name indorsed upon it ; or if he draws 
 it payable to a real person, and forges or allows some one to forge his name upon it, 
 and then negotiates or transfers it, he will be estopped from denying the genuineness of 
 the indorsement. Edwards on Bills and Notes, 125-130, 189.) In an action for falsely 
 representing one Johnson to be solvent, a witness was allowed to prove that the defendant 
 had maSe the same representation to him, and thus defrauded, him of goods ; as this 
 showed or tended to show a fraudulent connection between the defendant and Johnson. 
 Beal V. Thatclier, 3 Esp. Kep. 194. In an action for conspiracy to defraud, by represent- 
 ing A., a bankrupt, as a man of property, evidence that the defendants made the repre- 
 sentations to third persons, who, without the defendant's request, recommended A. to the 
 plaintiff, who was thus inj ured, was held admissible. Gardner v. Preston, 2 Day, 305. 
 To show fraud in selling an inferior kind of goods for blue guineas, a witness was allowed 
 to prove a sale to himself of a parcel of blue guineas, by the deffhdants, before the sale to 
 the plaintiffs ; and the declaration and conduct of the defendants towards him on the 
 subject of the distinct parcel. Snell v. Moses, 1 John. Bep. 90, 99, 100, 102. Where 
 the question is on fraud upon creditors, in the sale of real estate, the purchase of personal 
 property by the grantee from the grantor, with the intent to defraud creditors, made 
 after the sale of the real estate, is admissible in evidence to show that the first sale was 
 fraudulent. Jackson ex dem. Hooker v. Mather, 7 Cowen's Rep. 301. On the trial of a 
 question of fraud in obtaining a deed by an administrator, from one heir, evidence is 
 admissible of his conduct in respect to the property of another heir to the same estate. 
 So of a release from several different distributees. Lovell v. Briggs, 2 N. H. Rep. 218, 
 332, 223. Previous acta by the father, allowing his minor son to make contracts and 
 settlements in respect to his services, are admissible in evidence to bind him by like sub- 
 sequent acts of the son. Cliilson v. Phillips, 1 Verm. Reports, 41. In replevin to avoid 
 the sale of a horse by the plaintiff to B., on the ground of fraudulent misrepresentation 
 by R., who immediately sold the horse to the defendant, the plaintiff was allowed to 
 prove other similar acts by R., in respect to other persons and property, about the same 
 time. McKenney v. Dingley, 4 Greenl. Rep. 172 ; see post, p. 759. A., claiming that C, 
 in consideration of a note sold by A. to him, sold A. goods Ixma fide, and not to defraud 
 creditors, the latter may show that before the goods were sold, a considerable note and 
 mortgage were given by C. to A., though the proof has but a remote bearing. Treat v. 
 Barber, 7 Conn. Bep. 374. On issue upon a plea to an indenture, that its object was the 
 buying and selling of, lottery tickets (and therefore illegal), evidence that the plaintiff 
 bought and sold tickets after the date, was held pertinent. Williams v. Woodman, 8 
 Pick. 78. On a question whether a court of conscience holden before the mayors of 
 Limerick had exceeded its jurisdiction as to the subject matter, it appeared that the court 
 had been held on Thursdays for upwards of thirty years, and that the matter and adjudi- 
 cations were recorded in a book ; and that during the same time it had been holden on 
 other days without record. Held, that the Thuraday records might be read, as evidence 
 of jurisdiction upon other days. Hogan v. Mahop, 1 Hud. & Bro. Irish T. R. 384. On a 
 question whether a certain inj ury to certain blankets arose from sea damage, or damage 
 done at the factory, proof was received that other blaiikets coming from the same factory, 
 and having an appearance similar to those in question, were injured at the factory, to repel 
 the proof that the damage was done by the sea. Bradford v. Boylston Fire aiid Marine 
 Ins. Co.. 11 Pick. 162, 166 to 167. On a question whether the filling up of a harbor by 
 earth was occasioned by an embankment, to repel the inference that it was, evidence may 
 be given that other harbors similarly situated were filled in a similar way, without the 
 aid of an embankment. Polkes v. Chadd, 3 Doug. 157; S. C, 4 Stark. Ev. 383, there 
 called the Wells Harbor Case. In libel ; to repel proof of the charge (that the plaintiff 
 had attempted to destroy all religious institutions, his drawing up, circulating and paying 
 subscriptions for support of preaching, were held receivable. Stow v. Cimverse, 4 Conn. 
 Rep. 17, 43. To prove possession, in a proceeding for forcible entry and detainer, the 
 complainant was allowed to prove that he had, sixteen years before, demised to one of 
 
 the defendants a barn then standing on premises of which the loeus in quo was 
 *753 parcel, though not standing there *when the entry was made. But it was admitted 
 
 that this was very feeble evidence. Dutton v. Tracy, 4 Conn. Rep. 79, 94. In 
 trover for goods alleged to have been fraudulently obtained by the defendant and L., 
 subsequent acts of collusion and fraud by them to obtain goods from others, were held 
 admissible as tending to show their intent in respect to the plaintiff. Allison v. Matthieu, 
 3 John. Rep. 385. Where there were circumstances creating suspicion that a note had 
 been fraudulently altered, the alteration of other notes drawn and indorsed by the same 
 parties, to take up one for which the note in question had been given, was held admissi- 
 ible as going to strengthen the suspicion. Rankin v. Blackwell, 2 John. Cas. 198. 
 
BEC. III.] Msidence to be confined to Points in Issue. 633 
 
 *.Y53 *Upon a similar principle, evidence of a transaction between one of 
 the parties to an action and a stranger,, will be admissible, where its 
 tendency is to rebut a prima facie asisei of liability affecting such party. 
 Thus, in an action for work and labor, where the defense was, that the 
 credit was given by the plaintiff to A., and not to the defendant, a,nd that 
 the defendant had paid A for the work in question; A., who had become 
 bankrupt since the work in question, was called as a witness for the defend- 
 ant, and stated that the order was given by him ; and he tilso stated that, 
 at the time of his bankruptcy, the defendant,' in reference to his general' 
 account including the work in question, had overpaid him; this latter 
 
 A knowledge in the vendee that the vendor is insolvent, may be inferred from the 
 former buying goods of the latter in great quantities, for a long time and at a great dis- 
 count. Yates V. Carnsew, 3 Carr. & Payne, 99. On an issue whether a party was com- 
 mitting a willful trespass, so as to subject himself to an immediate arrest, upon the 
 malicious trespass statute (1 Geo. IV, ch. 56), he may give evidence as to a right of way 
 claimed by him, in order to show quo animo he entered, though in truth a trespass was 
 unwarrantably committed. Looker v, Halcomb, 13 Moore, 410, 416. That one was reputed 
 to be an Irishman, and had the accent or brogue of an Irishman, and waa reported to be 
 an Irish deserter, was received aS prima facie evidence that he was an Irishman. Jackson 
 ex dem. People v. Etz, 5 Cowen's Rep. 314. On trial of an indictment for the forgery of 
 bank notes, it appeared that the prisoner was arrested on the stairs leading to a room in 
 the third story, where J. and M. were employed in counterfeiting notes on the United 
 States Bank. The court being thus satisfied that he was connected with J. and M. in the 
 business of counterfeiting, received evidence that different parts of the machine employed 
 ill counterfeiting were found with them. The United States v. Craig, 4 Wash. C.' C. Rep. 
 739, in connection with United States v. Moses, Id. 736. On a trial for high treason, it 
 being proved that the prisoner had enlisted into the enemy's army, liis unsuccessful attempt 
 to persuade another to enlist was allowed in evidence, as showing the quo animo. Res- 
 publica v. Roberts, 1 Dall. 39, It is not admissible on the trial of an indictment for passing 
 a counterfeit bill with knowledge, to prove, on the part of the prosecution, that the 
 prisoner was arrested in company with one who had.previously been convicted of the same 
 offense, nor that he boarded at the house of one in whose possession counterfeit money, 
 and instruments for counterfeiting had been found (who had also been convicted of the 
 offense), unless the prosecution can also show that the prisoner was connected in the busi- 
 ness of counterfeiting with those in whose company he was found. But if the prisoner 
 has, in his examination before the magistrate, denied those facts, the examination becomes 
 evidence) which the public prosecutor may rebut by other evidence. Goldsby's Case, 
 before Radcliff, Mayor, 1 C. H. Rec. 81. On trial of an indictment for receiving stolen goods 
 of A., it is not competent to show that the prisoner's house was the common resort of 
 felons, for the purpose of disposing of their plunder. People v. Pierpont, before Riker, 
 Recorder, 1 Wheeler's Cr. Cas. 139. M. sued for the value of a bill which lie had received 
 as a good one, but was defeated in his suit, on the ground that the bill was counterfeit. 
 Yet others told him it was good, and he gave it to Q., who said he could pass if in con- 
 sideration of five dollars, to be spent between them. The jury on an indictment against 
 M. and G. for passing it under these circumstances, acquitted M.;and convicted G. ; and in 
 the course of the trial, it was held not necessary, in order to fix the prisoners with guilt, 
 to show a knowledge that the bill was counterfeit, to an absolute certainty ; but only 
 reasonable grounds of belief. Gallaher's Case, before Golden, Mayor, 5 C. H.Rec. 1. To 
 show that false swearing was corrupt, proof may be given that the deponent had used 
 expressions of malice in respect to the one against whonji he swore. Rex v. Munton, 8 
 Carr. & Payne, 498. On trial of an indictment for administering sulphuric acid to horses, 
 with intent to kill them, administering at different times, may be shown, in order to 
 demonstrate the intent. Rex v. Mogg, 4 Carr. & Payne, 864. On trial of an indictment 
 for manslaughter by the application of a lotion to the skin, evidence may be given, of the 
 effect of the lotion when applied to other patients. Rex v. Long, 4 Carr. & Payne, 398. 
 The defendant was indicted for a robbery, in advising the prosecutor to give money in 
 order'to appease the members of a mob, who demanded it from him with threats. To 
 show that tliis advice was not bonafde, but given as a member of the same mob, other 
 like demands made by the same mob, at other places, before and afterwards in the course 
 of the same day, in presence of the prisoner, may be received. Rex v. Winkworth, 4 Carr. 
 & Payne, 444. Knowledge of a forgery by one in whose favor an instrument was forged, 
 is evidence that he was the forger. Commonweailth v. Stevens, 10 Mass. Rep. 181. Where 
 there is no written statute or constitution prescribing the business of an officer of state 
 (e. g. the accountant-general); it is determinable by the usage of himself and his predeces- 
 sors in Ijis department'. Evidence of such usage is receivable, on the trial of an indictment 
 preferred against such officer, charging neglect of certain, duties to the injury of the nation. 
 Per Lord Mansfield, C. J., in Bex v. Bembridge, 3 Doug. 337, 331. 
 Vol. I. 80 
 
634 Of the Relevancy of Pres/wmptive Proofs. [ch. x. 
 
 statement was objected to upon the ground that the state of the account 
 between the "defendant and A. was res inter alios / but it was held to be 
 admissible, as showing the hona fides of the defense, that A. had been dealt 
 with by the defendant as principal, and not as an agent. (1) 
 
 Proof of customs in other manors, <&c. With respect to the relevancy 
 of a presumption, that a customary right exists in one place, from the fact 
 of its being proved to exist in another, it is to be observed, that when a 
 right is claimed by custom in a particular manor, proof of a similar cus- 
 tom in an adjoining manor, though within the same parish or leet, is not, 
 in general, admissible in evidence, and this not even though there be evi- 
 dence to show that the latter manor was a subinfeudation of the former; at 
 least, unless it be clearly shown that they were separated after the time of 
 legal memory, since, otherwise, they may have had different immemorial 
 customs. (2) Loi-d Raymond, C. J., said,(3) he had always looked upon it 
 as a settled principle in the law, that the customs of one manor could not 
 be given in evidence to explain the customs of another manor; "for if this 
 kind of evidence were to be allowed, the consequence seems to be, that it 
 would let in the custom of one manor into another, and in time bring the 
 customs of all manors to be the same." And in addition to this argument 
 of inconvenience, the objection taken to the evidence in that case, namely, 
 that it was inapplicable to the point in dispute, appears to be very strong ; 
 
 customs being different in different manors, and in their nature dis- 
 *754 tinct. Unless, therefore, some connection *or relation is proved to 
 
 have existed between them, as by showing that they Were all form- 
 erly holden under the same lord, or that the one manor was anciently parcel 
 of the other manor, (4) such evidence is not admissible. 
 
 But several cases appear to have determined, that, where all the manors 
 within a certain district are held by the same peculiar tenure, and a ques- 
 tion arises in any one of them upon an incident to the tenure, evidence 
 may be given of the usage which prevails in any of the other manors 
 within the district. The first reported case of this kind is Champian v. 
 Atkinson, (5) where the question was, whether a certain fine, called a grassum 
 fine was payable on the death of a tenant, when the lord was an infant ; and 
 the defendants were allowed to give in evidence, upon the trial of this 
 issue, that in other adjoining manors, where the grassum fine prevailed, it 
 was the custom not to pay to the lord before he attained his full age; 
 similar evidence was there said to have been received, on a question of 
 copyhold tenure, between certain manors in Middlesex. 
 
 On the authority principally of this case of Champian v. Atkinson, the 
 case of The Duke of Somerset agt. France(6) was decided. On a trial at 
 bar, where the issue was, whether a general fine was due from the tenants 
 of certain manors in Cumberland to the duke as next admitting lord, the 
 court after much argument received evidence, that the same fines had been 
 paid in similar cases to the lords of other manors. Raymond, C. J., and 
 
 (1) Gerish v. Charties, 1 G. B. 13. 
 
 (2) Anglesea (Marq.) v. Hatliorton (Lord), 10 M. & W. 318 ; Somerset (Duke) v. France, 1 
 Str. 662 ; Rudiiig v. Newell, 2 Str. 957 ; Furneaux v. Hutoliings, Cowp. 807 ; by Buller, J., 
 in Noble d. Kennoway, 2 Doug. 5l2 ; by Lord Konyon, C. J., in Carter v. Pryke, PeakeNi 
 P. C, 9>n ; by Wood, B., in Doe d. Foster v. Sisson. 12 East, 63 : Erskine v. Ruffie 3 
 Gwill. 965. 
 
 (3) In Somerset (Duko) v. France, ut supra. 
 
 (4) Moulin V. Dalison, Cro. Car. 484. 
 
 (5) 3 Keb. 90. on trial at bar, explained by Rolfe, B., in Anglesea (Marq.) v. Hatherton 
 (Ld.), 10 M. & W. 346. > h/ 
 
 (6) 1 Str. 662. See also Lowtlier v. Raw, Fortesc. 44, 55 ; S. P., on appeal to the Housa 
 of Lords from the judgment of Lord Talbot, C. ; Ely (Dean and Chapter) v. Warren 3 
 Atk. 189, S. P. See also Rowe v. Parker, 5 T. R. 31 ; and Lord Barclay's Case, Halo de 
 Jure Maris, 85. 
 
BKC. III.] Evidence to he confined to Points in Issue. C35 
 
 Rejrnolds, J., laid down the general rule as above stated, and were strongly 
 against admitting the evidence ; hut afterwards agreed to receive it, on the 
 authority of Champian,,v. Atkinson, and of cases said to have been so 
 ruled on the northern circuit. Fortescue, J., thought the evidence admis- 
 sible, and made a distinction between the custom and the tenure of a manor, 
 and as the question, there to be tried, merely concerned the tenure of the 
 plaintiff's manors, he was of opinion that it would be proper to inquire 
 what were the qualities that attended other estates holden by the same 
 tenure. 
 
 Rule on question as to custom of the country. On a question relative to 
 the custom of tithing,(l) Lord Mansfield, C. J., after laying down the, 
 general rule, that " proof of the custom in one parish is not evidence to 
 affect another parish," adds this qualification, " unless this custom is 
 *Y55 laid as a general custom of the country." Thus, *where half of a 
 river belongs, by the constant custom of the country, to the lords 
 of the manors on each side of the water, proof of the custom in one manor 
 is evidence of the same customary right in another. (2) It is evidence of a 
 custom pervading one common district of manors. 
 
 If proof be given that, in a particular manor, borough English or gavel- 
 kind prevails, it may be shown what the customs of borough English or 
 gavelkind are, from other manors. (3) 
 
 Where in each of several sub-manors, part of the same district and 
 belonging to the same lord, there appeared to be a certain peculiar class of 
 tenants answering the same description, and to whom their tenements were 
 granted by similar words, it was held, that evidence of the rights which 
 had been enjoyed by the tenants of one manor, was admissible to show 
 what rights the tenants were entitled to in another. (4) 
 
 Proof of the manner in which a particular trade is carried on at one 
 place, is evidence as to the course of that particular trade in another 
 place. (5) 
 
 r 
 
 Proofs of acts of ownership in other lands. In like manner, acts of 
 ownership in one place may sometimes afford a legitimate presumption 
 of the right of ownership in another. In an action of trespass, the plaintiff 
 claimed the whole bed of a river flowing between his land and the land of 
 the defendant, the defendant contending that each was entitled ad m,edium 
 filum, aquae: it was held, (6) that it was allowable for the plaintiff to give 
 in evidence acts of ownership exercised by him upon the bed and banks of 
 the river on the defendant's side lower down the stream, and where it 
 flowed between the plaintiff's land and a farm adjoining the defendant's 
 land, and also to prove repairs done by the plaintiff to a fence which 
 divided that farm from the river, and which was in continuation of a fence 
 dividing the defendant's land from the river. It was said by the court, 
 that the acts of ownership in question might reasonably lead to the infer- 
 ence, that the entire edge and bed of the river, and consequently the part 
 
 (I) Furneaux v. Hatchings, 2 Cowp. 807. 
 (3) R. r. Ellis, 1 M. & S. 662. 
 
 (3) By Rolfe, B., in Anglesea (Marq.) v. Hatherton, (Lord) ut supra. 
 
 (4) Rows V, Brenton, 8 B. & C. 758. See the observations of Lord Abinger, C. B., on 
 this case, in Anglesea (Marq.) v. Hatherton, 10 M. & W. 237. The matter in dispute was 
 neither a question of tenure nor of custom, as to which some nice distinctions are taken 
 by Fortescue, J., in Somerset (Duke) v. France, ut supra. As to evidence of the rights 
 of the crown in one part of the duchy of Lancaster, from proof of rights exercised in 
 another part of the duchy, see Jervison v. Dyson, 9 M. & W. 540. As to customs of dif- 
 ferent lands in the same manor, see Damerell v. Protheroe, 16 L. J. (N. S.) Q. B. 170. 
 
 (5) Noble V. Kennoway, 2 Doug. 510. 
 
 (6) Jones v. Williams, 3 M. & W. 881, where the nature of this kind of evidenco is 
 explained by Parke, B. 
 
g36 Of the Relevancy of Fi-esumptive Proofs. [ch. x. 
 
 in dispute, belonged to the plaintiff. In a previous case,(l) it had 
 *756 been decided in the Exchequer Chamber, upon a question *whether 
 
 a piece of waste land between a highway and inclosures belonged 
 to the plaintiff (the owner of the adjoining inclosures), or to the lord of the 
 manor, that the lord might give evidence of grants by him of waste land 
 terminating in a common, between the road and the inclosures of other 
 persons at a distance from the spot claimed by the plaintiff; but that such 
 evidence must be confined to the waste adjoining the road which passed by 
 the spot so claimed. (2) 
 
 The case of Stanley v. White, (3) may here be mentioned as a leadmg 
 authority upon the subject. It was an action of trespass for cutting down 
 the plaintiff's trees ; and the question was whether they belonged to the 
 plaintiff or the defendant. It appeared on the trial, that the trees in ques- 
 tion grew in a woody belt of considerable extent, entire and undivided, 
 which encircled the plaintiff's manor, and lay contiguous to a number of 
 closes belonging to several owners, one of which closes was that of the 
 defendant. Evidence was admitted of several acts of ownership, in dif- 
 ferent parts of the belt, by those under whom the plaintiff claimed, which 
 had been acquiesced in by the owners of the adjoining land. And the 
 Court of King's Bench afterwards, on a motion for a new trial, adjudged 
 the evidence to have been properly admitted, as evidence of the general 
 right through the whole extent of such entire undivided inclosure, which 
 might be presumed to have belonged formerly to one owner. This appears 
 to be the true principle, on which the proposed evidence in that case was 
 admissible. For, generally speaking, acts of ownership, submitted to by 
 the holder of one portion of land, cannot be proof that the person exercis- 
 ing them has any right to the adjoining land. (4) 
 
 Though it is a general rule, that a custom of tithing, &c., in one parish 
 will not be evidence of a custom in another, yet such an inquiry may some- 
 times be proper in cross-examination. Thus, in an action by a rector for 
 tithes, where the point in issue is whether there exists a modus of a certain 
 sum of money for a particular farm in a township within the parish, the 
 defendant will not, in general, be allowed to inquire whether other farms 
 
 in the same township are not subject to the same payment. But 
 *757 *where a modus is alleged on one side, it maybe relevant on the 
 
 other side to make an inquiry of this nature, for the purpose of 
 showing that such payments cannot be a modus, consistently with the 
 evidence which has been previously adduced. This was adjudged to be 
 admissible in the case of Blundell v. Howard. (5) The question there was 
 not put by the defendant with a view of supporting the modus set up by 
 him, but was put by the plaintiff, in order to show that this and similar 
 payments by the occupiers of different tenements were merely portions of a 
 
 (1) Doe d. Barrett v. Kemp, 3 Bing. N. C. 103. 
 
 (2) See S. C, 7 Bing. 382, where a mnire de novo was granted, because the court con- 
 sidered that they could not assume that all the pieces of waste, with respect to which 
 evidence was received, lay on the sides of a road or roads terminating in a large common. 
 They were, however, of opinion that evidence was admissible of grants of parcels of one 
 and the same waste, lying on both sides of the road, although the continuity of the waste 
 was interrupted for a short distance by the intervention ot houses. The same principle 
 is recognized in Tyrwhitt v. Wynne, % B. & A. 554, where leases were rejected on account 
 of no previous proof being given that the locus in quo was part of a larger district to 
 which these leases applied. And see Brisco v. Lomax, 8 A. & E. 811. 
 
 (3) 14 East, 333. See also Bryan v. Winwood, 1 Taunt. 208 ; HoUis v. Goldfinch, I 
 B. & C. 218. 
 
 (4) See by Bayley, J., and Best, J., in Hollis v. Goldfinch, 1 B. & C. 218, 222. As to 
 proof of working part of mine being evidence of possession of whole, see Taylor v. 
 Parry, 1 M. & G. 604. 
 
 (5) 1 M. & S. 393. See R. v. Stallard, 7 C. & P. 263 ; where an inquiry as to what other 
 persons had said of the prosecutor became relevant on account of an inquiry respecting 
 the urisoner's expressions concerning him. See Tennant v. Hamilton, 7 CI. & Fin. 122. 
 
SKC. in.] Evidence to be confined to Points in Issue. 637 
 
 sum in gross paid throughout ^Jie township by way of composition, and 
 could not be a modus, since the ecclesiastical surveys, which had been pro- 
 duced on the part of the rector, were entirely silent as to any modus 
 co-extensive with the township. (1) 
 
 Evidence of character. The character of the parties to a civil suit affords, 
 in general, such a weak and vague inference as to the truth of points in issue 
 between them, that it is not usual to admit evidence of this description. 
 Thus, in an action of ejectment by an heir at law, to set aside a will for fraud 
 and imposition committed by the defendant, (2) witnesses cannot be examined 
 to the defendatat's good character. So, on the trial of an information against 
 the defendant for keeping false weights,(3) where it was proposed to call 
 witnesses on behalf of his character, Eyre, C. B., ruled that such evidence 
 was not admissible in a civil suit. " The offense imputed is not," he said, 
 " in the shape of a crime. To admit such evidence would be contrary to 
 the true line of distinction, which is this, that in a direct prosecution for a 
 crime, evidence of character is admissible; (4) but when .the prosecution is 
 not directly for the crime, but for the penalty, it is not. If evidence to 
 character were admissible in such a case as this, it would be necessary to 
 try character in every charge of fraud upon the excise and custom-house 
 laws."(5) 
 
 (1) See Armstrong v. Hewitt, 4 Price, 216 ; and Leonard v. Franklin. Id. 264. 
 
 (2) Goodright d. Farr v. Hicks, B. N. P. 296 ; S. C, cited in Doe d. Stephenson v. Walker, 
 4Esp. So. 
 
 (3) Att. Gen. v. Bowman, 2 B. & P. 532, n. a. 
 
 (4) In criminal cases, evidence of tlie general good character of the accused, having 
 reference to the charge against him, is admissible in his behalf. See Janson v. Stuart, 1 
 T. R. 754 ; 2 Russ., Cr. & M., by Greaves, 784. 
 
 (5) Note 199. — The English cases go strongly to the exclusion of general character in 
 a civil suit, unless it be in issue by the very nature of the action. Even in an action of 
 slander for imputing a felony, and for a malicious prosecution, where the defendant justified 
 on the record, averring a larceny, evidence of the plaintifiTs good character was denied. 
 But it does not appear that the defendant had attempted to support his justification. If 
 he had, it is conceived the evidence would have been receivable on the same ground which 
 
 would make it admissible to repel the charge, on trial of an indictment. Corn 
 *758 virall V. EichardSon, Ry. & Mood. N. P. Cas. 305. *Indeed, this case is treated, ^o«*. 
 
 Volume II, as presenting the offer of the plaintiff to sustain his character merely 
 because a justification was put on the record. Where there is a plea of probable cause, 
 followed by evidence in its support, in^answer to an action for a malicious prosecution, the 
 character of the plaintiff is directly in issue. He may of course prove his good character ; 
 and it is said the defendant may, in the first instance, attack the plaintiffs character. This, 
 of course, must be confined to cases where the crime in question is infamous. Gregory v. 
 Thomas, 2 Bibb, 286. And see per Crenshaw, J., cited infra. 
 
 It will readily be perceived that character may be brought into the issue in a variety of 
 ways. This may be so not only in the common case of slander or libel, where it is always 
 more or less in question (Swift's Ev. 140, per Daggett, J. ; 7 Conn. Kep. 118) ; and as we 
 have just seen, in actions for malicious persecution or malicious arrest on the charge of a 
 crime (see farther, post, and per Crenshaw, J., in Rogers v. Wilson, ] Alab. Rep. 410) ; but 
 in various other cases, owing to the peculiar object and incidents connected with the 
 inquiry. Cases of criminal conversation, seduction and breach of marriage promise are 
 familiar instances. See Vol. IH. So, -in some cases where the question is one of mere 
 property. Where it was sought to prove that a will was obt^ned from a testator by the 
 unfair practices of certain women, their bad character was allowed t'o be shown, it appear- 
 ing that they had represented themselves as women of good character, and thus influenced 
 the testator to make his will in their favor. Nussear v. Arnold, 13 Serg. & Rawle, 328. 
 And in another case, where the testator was of weak mind, and entirely tmder the control 
 of his son H., who had made representations to him tending to create the belief that 
 whatever he might leave by will to his son M. would be squandered by his (M.'s) wife, she 
 being unthrifty and extravagant ; and the testator had made a will nearly disinheriting 
 M., on an issue to try the validity of the will between the two sons, the above facts being 
 first shown, testimony was offered by M. and received by the court as proper, of his 
 wife's general good character and conduct. Dietrick v. Eietrick, 5 Serg. & Rawle, 207. 
 So where the defendant and neighbors assembled and pulled down the defendant's house, 
 into which the plaintiff had vexatiously obtruded himself, in trespass for this injury, the 
 defendant was allowed to prove in mitigation of damages, that the plaintiff was a worth- 
 
638 Of the Relevancy of Presumptive Proofs. [ch. x. 
 
 less vagabond, and was regarded as a nuisance in the neighborhood, and that the house 
 was pulled down to induce him to remove. Rhodes v. Bunch, 3 M'Cord, 66. So in tres- 
 pass for killing tlie plaintiff's slave, to rebut the presumption of such ill conduct in the 
 slave as would justify the defendant ; held, tliat the general good character and orderly 
 deportment of the slave were admissible in evidence. Pierce v. Myrick, 1 Dev. 345. 
 
 But aside from such exceptions, the rule is, that in civil suits the character of either of 
 the parties is out the question. Even on trial of an issue upon the adultery of the wife; 
 which was established by proof merely presumptive, in a proceeding by the husband to 
 obtain a divorce, her fair character was refused as evidence in her favor. The court, by 
 Daggett, J., said : " The rule of law is, that in civil proceedings, unless the character 
 of the party be dirfctly.put in issue, by the proceeding itself, evidence of his general 
 character is inadmissible. Charges of cruelty, gross fraud, and even forgery, are often 
 agitated in suits by individuals ; and the result not unfreq'uently deeply affects the property 
 and reputation of the palrty ; yet no individual has been suffered to attempt to repel the 
 proof, by showing a good reputation. The present is a civil suit. Character is not put 
 in issue by the proceedings ; and if it can be given in evidence, it may also be given in 
 evidence in all inquiries into facts affecting the reputation in other civil cases. The prin- 
 ciple would lead to great uncertainty, and be productive of no benefit in the administration 
 bf justice. ' Formerly, evidence of the defendant's good character in criminal proceedings, 
 was admitted in capital cases only, and that in fwnorem vitcB ; but such evidence is now 
 admitted in all cases where the character of the defendant is in jeopardy.' " Cites 2 Stark. 
 Ev. 365. " But the relaxation of the rule in criminal cases has not affected the rule in 
 civil suits." Humphrey v. Humphrey, 7 Conn. Rep. 116, 118, 119., 
 
 Accordingly, in trover for goods, where a fraud upon creditors by a colorable bill of sale 
 was in question, and fully made out by the usual presumptive proof, the genera] character 
 of the parties to the bill for honesty, was denied as evidence. Woodruff v. Whittlesey, 1 
 Kirby, 60, 63. So the good character of the plaintiff in debt on bond, where the defence 
 was fraud in obtaining it. Anderson's Ex'rs v. Long, 10 Serg. & Rawle, 55. So, in an 
 action for money had and received, though the plaintiff's evidence, as to the manner of 
 obtaining it, impeached the character of the defendant's testator. Nash v. Gilkeson. 5 
 Serg. & Rawle, 353. So, in an action for not shipping wine of the quality stipulated by the 
 defendant. Kentland v. Bissett, 1 Wash. C. C. Rep. 144. So of the plaintiff's good or 
 bad character in an action of assault and battery. Givens v. Bradley, 3 Bibb, 195, 196. 
 Nor in trespass quare domum fregit, with intent to ravish the plaintiff's wife, can the 
 defendant give her character in evidence to mitigate damages ; or to infer that he entered 
 the houee with lier consent. Davenport v. Russell, 5 Day, 145, 148. In assumpsit by a 
 physician for his services, the defendant cannot by evidence, attack his general character 
 in his profession (Jeffries v. Harris, 8 Hawks. 105) ; and held that in erim. con., the plain- 
 tiff's character (e. g. as a beastly drunkard) or the character of his liQu&e (c. g. as a low 
 grog shop) was not in issue. Norton v. WarnSr, 9 Conn. Rep. 173. In no case is it 
 allowable to adduce evidence in sujiport of a party's character, until it has been 
 impeached. Townsend v. Graves, 8 Paige, 453, 455, 456. On a question in libel, whether 
 the Ethosian Club, of which the plaintiff was a m,ember, was an infidel club ; held, that 
 its general reputation was not relevant. Stow v. (ionverse, 4 Conn. Rep. 17, 40 to 42. 
 
 It was held that though the party's character be not in issue, yet he having adduced 
 evidence in its support, the opposite party may produce evidence in reply. Grannis v. 
 Branden, 5 Day, 260. 
 
 _ In the state of New York, the general rule! as to character in civil suits was, at one 
 tinie, slightly broken in upon. The Supreme Court held, some thirty years ago, that in 
 actions for torts, especially such as chilrge gross depravity upon circumstances merely, 
 evidence of uniform integrity and good character is admissible to repel the charge. The 
 misfeasance here imputed was collusion' between a naval officer and a belligerent, to cause 
 a capture. Ruan v. Perry, 8 Cain. Rep. 120, 123. This decision is spoken of in terms of 
 general approbation by Walwofth, C, in Townsend v. Graves (3 Paige, 435) ; and has 
 "been repeatedly acted upon at Nisi Prius, and by vei^ intelligent local courts, in a broader 
 sense than recent authoritative construction would seem t6 warrant. It was received by 
 the late Van Ness, J,, in an action for a conspiracv to cheat by misrepresenting the char- 
 acter of a third person (Rumsey v. Lovett, Ant. N. P. Rep. 17, 20, 21 ; but see note a to 
 that case) ; and by Riker, Recorder, in an action of trover, imputing the fraudulent expo- 
 sure of the plaintiffs rye, shipping on board of the defendant's sloop (himself master) to 
 capture, by the Bulwark, a British seventy-four, during the late war. Qreon v. Aspin- 
 wall. Mayor's Court, N. T., Jan. term, 1816, 1 C. H. Rec. 11, 19. 
 
 But the decision in Ruan v. Perry has been lately reviewed by the court where it was 
 made, who have now adopted the English rule as settled by the cases in the text. They 
 intimate that the admission of general character as evidence, in civil suits, must, at most, 
 be confined to cases of fraud depending for its support on slight circumstances ; and 
 perhaps to cases of official misconduct. Accordingly, where a fraudulent valuation of a 
 loss under a fire insurance policy, was imputed to the plaintiff (although as is known, such 
 an imputation involves the charge of moral perjury committed by the assured in the 
 preliminary proofs,) the evidence of his good character which the' judge at Nisi Prius 
 
BBC. 111.] Evidence to he confined to Points in Issue. 639 
 
 *759 *Where, however, in a civil suit, character is a matter in issue, 
 
 there the evidence of it ceases to be of a circumstantial nature, and 
 
 there can be no objection to receiving it. Various questions, however, 
 
 have arisen in civil suits as to the point, whether the character of the parties, 
 
 or of a third person, was directly in issue or not. 
 *760 *In actions for adultery or seduction, the wife's or daughter's general 
 conduct, if not their general character in regard to chastity, is 
 involved in the issue, as affecting the damages ; and accordingly, it seems 
 that evidence pf general bad character, or even of particular acts of immo- 
 rality, (1) is admissible on the part of the defendant in such actions in 
 reduction of damages. (2) But evidence of this description must be con- 
 received, was made the main ground for granting a new trial. The chief justice (Savage) 
 expressly adopts the case of The Attorney General v. Bowman, cited in'the text, as the 
 ground of the decision. He adds, that a contrary rule would be extremely dangerous ; 
 that the character of every transaction must be ascertained by its own circumstances^ and 
 not by the character of the parties. Fowler v. The ^tna Fire Ins. Comp., 6 Cowen's Kep. 
 673, 675, 676. The practitioner who looks. to the large calendars of our law and chancery 
 cases, involving greater or less degrees of moral dereliction, will agree that inquiries into 
 character, if tolerated in such suits, would be not merely useless or dangerous in the 
 particular case, as suggested by Daggett, J., and Chief Justice Savage, but the evil would 
 be enhanced by becoming interminable. 
 
 (In Dain v. Wyckoff (18 N. Y. 45,). which was an action for seduction of plaintiff's 
 daughter, the court refused to admit evidence of plaintiff's bad moral character, even in 
 respect to chastity, for any purpose. ' In actions for breach of promise of marriage, plain- 
 tiff's licentious or lewd conduct may be shown. 7 Cow. 33 ; 7 Wend. 143. So in actions 
 for seduction, previous lascivious conduct on the part of the girl may be proved, as 
 tending to lessen the damages. Bracey v. Kibbe, 31 Barb. 378. . On an application for 
 alimony after a divorce, the court will not inquire into the habits and associations or 
 misconduct of the wife eubsequent to the divorce. Forrest v. Forrest, 3 Bosw. 661 ; S. C. 
 8 Bosw. 640. • " 
 
 In order to show that a purchase of goods was fra;udulently made, i. e. made with a 
 preconceived design not to pay for them, evidence may be given showing that the buyers 
 made other purchases at the same time on false representations, that they had incum- 
 bered their property by a chattel mortgage, and that they were insolvent and knew of 
 their insolvency ; their conduct and the time of their failure may also be proved to show 
 the intent with which the purchase was made. Henniquin v. Naylor, 84 N. Y. 139. 
 Such evidence is not admissible in' proof of the general character of the purchasers ; it is 
 admitted to show that the particular purchase was*frauduleutly made. Other acts and 
 circumstances, the situation of the parties and their pecuniary means, may be proved to 
 show that a debtor's conveyance was fraudulent and void. Amsden v. Manchester, 40 
 Barb. 158. An omission to disclose his circumstances by a party purchasing goods, no 
 inquiry being made, is not conclusive evidence of fraud. Nichols v. Pinner, 18 N. Y. 395. 
 But if the circumstances of the purchase be such as to show a fraudulent intent, or a 
 preconceived design not to pay for the goods, the sale is void, though no representations 
 are made. King v. PliUlips, 8 Bosw. 698. ; Root v. French. 13 Wend. 570 ; Brown v. 
 Montgomery, 30 N. Y. 387. 
 
 The director of a bank who purchases stock of its cashier is not estopped from setting 
 np his actual ignorance of the condition of the bank and showing that he made the 
 purchase on the false and fraudulent representations of the cashier ; but that y>laintiff 
 could not prove the condition of the bank by introducing the proceeding taken two 
 months after on its re-establishment, on petition of certain of the stockholders. Lefever 
 V. Lefever, 30 N. Y. 37.) 
 
 (1) Verry v. Watkins, 7 C. & 5. 808. 
 
 In actions for si^uction, the relation of master and servant is the foundation of the 
 action (Bartley v. Richtmeyer, 4 Comst. 38) ; and where the father (who in the case of an 
 apprenticed child, cannot bring the action) sues, evidence cannot be given showing Ms bad 
 character or the defendant's circumstances. Dain v. Wyckoff, 3 Selden R. 191. Under the 
 act of 1848 to punish seduction as a crime, the girl's reputation for want of chastity can- 
 not be shown ; and she is to be corroborated only in respect to the promise of marriage 
 and the intercourse ; Kenyon v. People, 36 N. Y. 303. 
 
 (3) Dodd V. Norris. 3 Camp. 519 ; Gardiner v. Tadis, 1 Selw. N. P. 35 ; Roberts v. Mal- 
 Bton, B. N. P. 396 ; Elsam v. Faucett, 3 Esp. 563 ; Andrews v. Askey, 8 C. & P. 9. As to 
 the husband's bad character, see B. N. P. 37; Bromley v. Wallace, 4 Esp.~337. And see 
 as to the plaintiff's bad character in actions for breach of promise of marriage, Poulkes v. 
 Sellway, 3 Esp. 336; Leeds v. Cook, 4 Id. 358; Irving v. Greenwood, 1 C. & P. 350; ante 
 p. 759. 
 
 As the plaintiff in such actions may recover smart money or vindictive damages, the 
 
640 Of the Relevancy of Presumptive Proofs. [ch. x. 
 
 fined to a period antecedent to the defendant's alleged misconduct. (1) In 
 such actions, where the defendant has endeavored to impeach the character 
 of the wife or daughter, by general evidence, upon cross-examination, or by 
 calling witnesses, general evidence of good character is admissible, in reply ; 
 (2) but it may be doubted, whether the plaintiff in reply can give general 
 good character in evidence, where the defendant's evidence has not been 
 general, but has related to particular instances, especially where the impu- 
 tations are made in the course of the daughter's cross-examination, who has 
 therefore an opportunity of explaining them awa;jr upon re-examination. (3) 
 
 In Actions for defamation, imputing specific misconduct to the plaintiff, 
 general evidence of the plaintiff's good or bad character is irrelevant, even 
 though the defendant has pleaded a justification •,(4) and where no justifi- 
 cation is pleaded, the plaintiff will not be permitted even to disprove the 
 
 defamatory allegations. (5) 
 *762 *But it seems still to be unsettled whether, in such an action, the 
 defendant is at liberty to prove that reports were generally current 
 that the plaintiff had been guilty of the alleged misconduct, for the pur- 
 pose of lessening the damages, by showing that the defendant was not 
 the originator of the slander; (6) at any rate, evidence to this effect will be 
 admissible where, at the time of uttering the words complained of, the de- 
 fendant had referred to reports of- the kind. (7) 
 
 And where the defamatory matter imputes general misconduct to the 
 
 circumstances going to aggravate or extenuate the offense may be shown (Cook v. Ellis, 
 6 Hill (N. Y.), 466); not, so where the action is brought expressly for loss of services. 
 Whiting v. Hitchcock, 4 Denio, 461. In an action for breach of promise of marriage, the 
 plaintiff may show the defendant's pecuniary circumstances, *s a means of sho'wing 
 th« loss or damage sustained by plaintiff in consequence of difendant's refusal to mariy 
 her, the loss of that condition in life which his circiimstaqces would have insured her as 
 his wife ; and the defendant may prove in mitigation of damages, even where he has not 
 interposed the same as a defense in his answer, plaintifTs improper and lewd conduct 
 subsequent to the promise of marriage ; but it is conceded that if the defendant set up 
 such matters in his answer to excuse his breach of promise, and fail to sustain them, such 
 attempt will greatly aggravate the damages : Kniffen v. McConnell, 30 N. Y. 285 ; South- 
 ard V. Eexfor^, 6 Cowen, 254 ; Wells v. Padgett, 8 Barb. 323. In tliis case of Wells v. 
 Padgett, an action for breach of a marriage contract, the court held that where the prom- 
 ise of marriage was deceitfully made as means of accomplishing plaintiff's seduction, such 
 fraud and seduction were to be regarded as an aggravation of plaintiff's damages. See 
 ante p. 759 note. 
 
 (1) Elsam V. Fancett, ixt swpra. Whether in actions . for seduction it is necessary to 
 cross-examine the daughter as to specific acts of immorality before they can be proved on 
 the part of the defendant, see Carpenter v. Wall, 11 A. & E. 803. Post, Vol. II, Of Mei- 
 dence to impeach Hie Credit of the opposite Party's Witness. 
 
 (2) Banfield v. Massoy, 1 Camp. 460 ; Dodd v. Norris, 3 Id. 519. 
 
 (3) Ibid.; Bate v. Hill, 1 C. & P. 100. See King v. Francis, 3 Esp. 116. It may be 
 observed, that it is often impossible to give a satisfactory answer to a charge unexpectedly 
 made, except by general evidence. See R. v. Clarke, 3 Stark. R. 242, where general evi- 
 dence of character was received sifter the prosecutrix's character had been impeached 
 upon her cross-examination. 
 
 (41 Cornwall v. Richardson, R. & M. 305. 
 
 (5) Stuart v. Lovell. 2 Stark. R. 93. 
 
 (Under the Codo of New York, the defendant may plead and prove j uetification and facts 
 tending to prove the truth of the defamatory words in mitigation of damages, though he 
 fails in proving a justification. Brisby v. Shaw, 2 Kernan R. 67.) 
 
 (6) See in favor of the affirmative, Williams v. Callender,. Holt N, P. R. 307 ; Leicester 
 (Lord) V. Walter, 2 Camp. 251 ; Earner v. Merle, cit. Id. 253 ; Newsam v. Carr, 2 Stark. 
 
 R. 70; Knobell v. Fuller, Pea. Ad. Ca. 189 ; \. Moore, 1 M. & S. 284; Mooro v. 
 
 Ostler, Rose. Ev. 398 (5th ed.) ; Hardy y. Alexander, Id. (both commented on in Richards 
 V. Richards, 3 Mo. & R. 558) :— of the negative, Jones v. Stevens, 11 Pri. 235 ; Waithman 
 V. Weaver, D. & R. N. P. C. 10. 
 
 (7) Richards v. Richards, 2 Mo. & R. 557. « 
 (See also Dole v. Lyon, 10 John. R. 447. Such references to the author of the report 
 
 may show the quo animo, and are admissible for that purpose (Taylor v. Church, 4 Selden 
 R. 452) ; not so as to words spoken on another occasion. Howard v. Sexton, 4 Comst. 157 ; 
 Boot V. Lowndes, 6 HUl K. 518.) 
 
SBC. III.] Evidence to he confined to Points in Issue. 641 
 
 plaintiff, and the defendant justifies, or contends that the alleged defama- 
 tion was contained in a communication that was privileged, the plaintiff 
 will be at liberty to give evidence of his general good conduct. Thus, in 
 an action of libel upon a servant, who had lived in the defendant's service, 
 imputing general dishonesty and misconduct to her, Lord Alvanley, C. J., 
 permitted the plaintiff to call a witness, with whom the plaintiff had lived 
 before going into the defendant's service, to speak to her general good 
 character. (1) ' 
 
 In Action for Malicious Prosecution, die. It seems, according to the 
 later' authorities, that evidence of the plaintiff's bad character is not admis-' 
 sible in an action for a malicious prosecution, (2) or for false imprisonment. (3) 
 
 In criminal matters, evidence of the character of the complaining party 
 frequently affords a material presumption in regard to the perpetration of 
 offenses. Thus, where the charge is that of rape, or of an assault with an 
 attempt to commit a rape, the general bad character of the prosecutrix' 
 may, under the circumstances of particular cases, afford a just inference 
 as to the probability of her having consented to the commission of the act 
 for which the prisoner iS' indicted. Accordingly, upon the trial of indict- 
 ments for such offenses, evidence is admissible on the part of the pri- 
 *762 soner, that the woman bore a notoriously bad character for *want of 
 chastity and common decency ; and it is not necessary that the 
 woman should have been previously interrogated on the subject. (4) It 
 appears also, at least upon trials for rape, that evidence is admissible that 
 the woman has been before criminally connected with the prisoner. But 
 it seems that evidence of particular facts cannot, in general, be received to 
 impeach the chastity of the woman ; as, that, previously to the commis- 
 sion of the offense, she had a criminal connection with particular persons. (5) 
 It was held in one case, that the woman, in a prosecution for rape, is not 
 bound to answer questions to such facts as tend to criminate and disgrace 
 herself (6) But it has been since held, that she may be cross-examined as 
 to such matters,(7) or as to her having had connection with the prisoner' 
 previously to the alleged rape,(8) and if she deny the facts to which she is 
 cross-examined, the prisoner may produce evidence to contradict her,(9) 
 for such evidence is not immaterial to the question whether the prosecutrix 
 has had the particular intercourse with the prisoner against her consent. (10)' 
 
 (1) King V. Waring, 5 Esp. 13. See also Fountain v. Boodle, 4 Q. B. S. 
 
 (2) The evidence was admitted by Lord Kenyon, C. J., in Rodrigues v. Tadmire, 3 Esp. 
 721 ; rejected by Wood, B., in Newsam v. Carr, 2 Stark. R. 70. 
 
 (3) Downing v. Butcher, 2 Mo. & E. 374. Want of probable cause being shown, malice 
 maybe inferred; Grinuell v. Stewart, 32 Barb. 544; for probable cause, see Scanlan v. 
 Cowley, 2 Hilton, 489. 
 
 (4) R. V. Clarke, 2 Stark. R. 244 
 
 (5) By Holroyd, J., in R. v. Clarke, vi svpra. He also ruled, that the woman's answers 
 as to particular facts would be conclusive ; but it is to be observed, that tliis is treating 
 the question as merely discrediting the witness, and not as relevant to the issue. See Vol. 
 II, Of the Examination of Witnesses. And see R. v. Robins, p,nd R. v. Aspinall, infra. 
 Perhaps it may be considered that the question of the woman's chastity is not directly 
 involved in the issue upon such charges, as it is in actions for crim. con. and seduction. 
 ^e detei-mination of this question may, however, afford a material inference as to the 
 truth of the charge ; and the alleged objection to the evidence is in some degree obviated 
 by the power, as in actions of seduction, of producing general evidence of good character 
 In reply. 
 
 (6) R. V. Hodgson, R. & R. 211. See Vol. II, Of the Examination of Witnesses. 
 
 (7) B. V. Robins, 2 Mo. & R. 512 ; R. v. Barker, 3 C. & P. 589. 
 
 (8) R. V. Martin, 6 C. & P. 562, where Williams, J., expressly dissented from the 
 doctrine laid down in R. v. Hodgson, in which he had been counsel. And see C. & P. 590, n. 
 
 (9) R. V. Aspinall, cit. 3 Stark. Ev. 952 ; R. v. Robins, vi svfpra. 
 
 (10) Note 200. — It would not be going too far, perhaps, to say that the party injured by 
 rape, or an assault with intent, &c., might be sustained in her testimony by evidence of 
 
 food character, even without any attempt being first made to impeach it. Per Daggett, 
 ., in The State of Connecticut v. De Wolf, 8 Conn. Rep. 93, 100, 101. She being deaf and 
 Vol. L 81 
 
642 OJ' th& Relevancy of Presumptive Frodfs. [ch. x. 
 
 Evidence asto Good Gharacter of Prisoner. — In trials for felony and high 
 treason, and in trials also for misdemeanors, where the direct object of the 
 
 prosecution is to punish the oifense, the prisoner is always permitted 
 *V6S to call witnesses to his general character ; (1) *and in every case of 
 
 doubt, proof of good character will be entitled to great weight. (2) 
 
 dumb, such testimony was received, without any previous effort to impeaclii- on trial for 
 an indictment for the assault. Id. And per Daggett. J., it would be allowed in favor of 
 a stranger passing transiently through the state. Id. 
 
 (1) Note 301. — General character was allowed in evidence for the defendant on the 
 trial for a capital offense ; and per Parsons, C. J., it is admissible for the defendant in all 
 criminal prosecutions, which Sewell and Parker, J's, doubted. Commonwealth v. Hardy, 
 2 Mass. Rep. 317, 318. This may be encountered by evidence on the part of thie prosecu- 
 tion ; but no evidence can be given a^inst the defendant's good character, till he has put 
 it in issue, by calling witnesses on his part. Per Parsons, C. J., in Commonwealth v. 
 Hardy, 3 Mass. Rep. 317, 318. It was denied that it is admissible in actions or informa- 
 tions for penalities ; but said to be confined to trials for crimes subjecting to corporal 
 punishment. Per Judge Owsley, in Givens v. Bradley, 3 Bibb, 196. If is said by other 
 authorities to be admissible in all criminal cases where character is in jeopardy. 2 Stark. 
 Ev. pt. 4, p. 365 ; adopted per Daggett, J., In Humphrey v. Humphrey, 7 Conn. Rep. 118^ 
 119. (Weight of good character considered in Cancerai v. People, 16 N.Y. 501). 
 
 Testimony cannot be given in reply, of conversations heard since the commencement of 
 the prosecution, though they relate to the prisoner's chariicter before the alleged crime. 
 Carter v. The Commonwealth, 8 Vifg. Cas. 169. On trial of an indictment for keeping a 
 disorderly house, proof is inadmissible, that the neighbors generally complained of it as 
 disturbing them. It is no more than general reputation of a disorderly house, which is 
 inadmissible. Commonwealth v. Stettart, 1 Serg. & Rawle, 342. 
 
 (3) Note 303. — We had occasion, in a previous note (183), fully to consider the conclu- 
 sive effect of good character, when opposed to a case of larceny, resting on the prisoner's 
 possession of the stolen goods— and that only. We shall not here repeat the adjudica- 
 tions. They are in keeping with other aulhorities, all of which concur in the value of 
 character, when used in reply to presumptions which are not strong. See also ante, 
 note 177. 
 
 It was said by an Irish judge (Smith B.), on trial for murder : " Character is of great 
 ■weight in every case, and requires particular attention vphen the charge is gro\mded on 
 circumsttntial evidence. It creates a greater degree of doubt than where the pr< seeut'on 
 ij supported by direct evidence. In the former case character ought to be pariieularly 
 attended to, because the jury is more or less embarrassed, and called upon to weigh the 
 case with more scruple and doubt, from the very nature of the testimony on the part of 
 the crown." Rex. v. Crawley, Dublin Oyer and Terminer. 40 Geo. Ill, MaCnally's Ev. 
 679; 16 N.Y, 501. 
 
 Other authorities speak with more diffidence. " It ought never to have any weight 
 except in a doubtful case." 1 Stark. Ev. 35. Character cannot defeat the force of strong 
 circumstances. Freeland's Case, before Radcliff, Mayor, Gen. Sess., N. Y., 1 C. H. Rec. 
 ^.83. But the same learned judge allowed that it should overcome slight evidence of 
 scienter in a case of forgery. James' Case, N. Y. Gen. Sess., Aug. 1816, 1 C. H. Kec. 133, 
 133. General good character has weight in all cases where the facts are doubtful or 
 admit of different interpretations. But where-the testimony is positive and satisfactory 
 to the jury, it cannot avail. Said on a trial for murder, per Story, J., in United States v. 
 Freeman, 4 Mason, 510 ; per Parsons, C. J., in Commonwealth v. Hardy, 3 Mass. Rep. 317! 
 Again, though the case be clear against the prisoner, yet character is admissible ; but, 
 unless the evidence is dubious, or the testimony presumptive, general character is entitled 
 to but little weight. The State v. Wells, 1 Coxe, 434, 439; per Savage, C. J., in The 
 People V. Vane, 12 Wend. 83. It cannot always avail against a circumstantial case, 
 which may sometimes be so strong as to overcome positive testimony (The Struggle v. 
 The United States, 9 Cranch, 71) ; but good character alone should uniformly be aUowed 
 to outweigh the mere testimony of an accomplice. Per Savage, C. J., in The People vl 
 Vane, 13 Wend. 83. 
 
 On the other hand, where the recorder, on a trial for grand larceny, charged that, from 
 the age of the prisoner, it was evident that he must have acquired a character of' some 
 kind ; that if it was good, it was in his poAver to have shown it ; and his omission to offer 
 any eridence on that point, was a circumstance which the jury ought to consider as 
 weighing strongly against him ; on error, this was holden well. The testimony on the 
 part of the prosecution was that of an accomplice. Savage, C. J., said : " Had the witness 
 implicated some respectable citizen vi^hose character was above reproach, can there be a 
 floubt that good character alone would have been a perfect shield ? A man is not to be 
 convicted of a crime because he has a bad character, or no character ; but, in cases, like 
 the present, character becomes important ; and where no such evidence is produced the 
 fresumption is it cannot be produced. The further intference is, that the defendant is a 
 
6KC. III.] Moifyice tQ be con/ittedto Pomts m Issvbe. 643- 
 
 ■The inquiry as to the prisoner's genei-al character ought manifestly to 
 *7C4 bear some analogy and reference to the nature of the charge *again8t 
 him. On a charge of stealing, it would be irrelevant and absurd to 
 inquire into the prisoner's loyalty or humanity ; on a charge of high treason 
 it would be equally absurd to inquire into his honesty and punctuality in 
 private dealings. Such evidence relates to principles of moral conduct, 
 which, however they might operate on other occasions, would not be likely 
 to operate on that which alone is the subject of inquiry ; it would not 
 aflford the least presumption that the prisoner might not have been tempted 
 to commit the crime for which he is tried, and is therefore totally inapplifl' 
 able to the point in question. The inquiry must also be as to the general 
 character : for it is general character alone which can afford any test of 
 general conduct, or raise a presumption that the person who had maintained 
 a fair reputation down to a certain period, would not then begin to act 
 a dishonest unworthy part. Proof of particular transactions, in which the 
 defendant may have been concferned, is not admissible as evidence of his 
 general good character. (l) 
 
 What, then, is evidence of a general character ? The best medium of 
 proof is, by showing how the person stands in generail estimation ; proof 
 that he is reputed to be honest, is evidence of his character for honesty, 
 and the species of evidence most properly resorted to in such inquiries. 
 It frequently occurs, indeed, that witnesses, after speaking to the general 
 opinion of the prisoner's character, state their personal experience and 
 opinion of his honesty ; but when this statement is admitted, it is rather 
 from favor to the prisoner than strictly as evidence of general character. (2) 
 In cases where the intention forms a principal Ingredient in the offense, a 
 wider scope is allowed. On a charge of murder, for instance, the natural 
 expressions of good will or acts of kin,dness on the part of the prisoner 
 towards the deceased, are always considered important evidence, as show- 
 ing what was his general disposition towards the deceased, from which the 
 jury may be led to conclude, that his intention could not have been what 
 the charge imputes. (3) 
 
 *765 * Cross-examination of witnesses to character. It is not the practice 
 to cro^s-examine witnesses to character, unless the prosecutor has 
 some distinct charge to which to cross-examine the witness, (4) or to make 
 the calling of them a ground for addressing the jury on the part of the 
 prosecution ; though the practice in these respects is not imperative, and, in 
 
 man of bad character, (ind would naturally be associated with such men as the witness," 
 The People v. Vane, 15 Wend. 78, 82. 
 
 (1) Note 303.— 'Nor in reply to such evidence; e.g. that the party has been guilty of 
 seduction. Betts v. Lockwood, 8 Conn. flep. 487, 488. Nor is what particular persona 
 haVe said admissible ; nor what was learned on an inquiry in the neighborhood, set on 
 foot for the purpose. Douglass v. Tousey, 2 Wend. 852. 
 
 (2) See 31 How. St. Tr. 190, 310. 
 
 Note 204. — Public opinion is the question, in common cases, where character is in issue. 
 Per Parsons, C. J., in Boynton v. Kellogg, 8 Mass. 192. Character is a term convertible 
 with common report. Per Gibson, J., in Kimmel v. Kimmel, 3 Serg. & Kawle, 337. 
 Character and reputation are the same. Per Duncan, J., in S. C, page 338. General char- 
 acter ie the estimation in which a person is held in the oomniunity where he has resided. 
 Per Marcy, J., in Douglass v. Tousey, 2 Wend. 854. 
 
 (3) Note 205. — On trial of an indictment for murder, in killing a trespasser, evidence 
 for the prisoner, that he was in possession of laud, and that the deceased was coming to 
 commit a trespass, is admissible to show the state of feeling existing between the parties ; 
 and the prosecution may give evidence, with the same view, that lawsuits were existing 
 between the parties ; but the court will not inquire whether the suits were malicious, nor 
 examine the title. The State v. Zeller, 2 Halst. 330, 230, 234. And on a trial for tho 
 murder of a slave the prisoner was allowed to prove that the deceased was insolent and 
 impudent to white persons. But the court admit that such evidence must be confined to 
 the killino- of slaves. State v. Tackett, 1 Hawks, 210, 217, 218. 
 
 (4) R. V. Hodgkisa, 7 C. & P. 298 ; 27 N. Y. 586, see note, 593, Vol. 2. 
 
644' Of the Relevahcy of Presumptive IVoofs. [ch. x. 
 
 particular instances, it may be deviated from with propriety. (1) It is 
 expressly provided by the statute, 6 & 7 Wm. IV, c. Ill, that if upon the 
 trial of any person for any subsequent felony, such person shall give evi- 
 dence of good character, it shall be lawful for the prosecutor, in answer 
 thereto, to give evidence of a conviction of such person for a previous felony, 
 and the jury shall inquire concerning such previous' conviction, at the same 
 time that they inquire concierfting the subsequent felony. (2) If a prisoner 
 cross-examines the witnesses for the prosecution, as to his character, this is 
 giving evidence within the statute; and the previous conviction may be 
 proved. (3) 
 
 Evidence of bad character. Evidence will not be admitted, on the part 
 of the prosecution, to show the bad character of the accused person, unless 
 he has called witnesses in support of his character; and even then, the 
 prosecutor cannot examine to particular facts, the general character of 
 the accused not being put in issue, but coming in collaterally. (4) 
 
 It would not be allowable to show on the trial of an indictment, that the 
 prisoner has a general disposition to commit the same kind of offense as that 
 charged against him. Thus, in a prosecution for an infamous crime, an 
 admission by the prisoner, that he had committed such an offense at another 
 time, and with another person, and that he had a tendency to such practices, 
 ought not to be received in evidence. (5) , 
 
 In criminal cases, it is peculiarly the duty of courts of justice to prevent, 
 evidence being given which would support a charge against the prisoner, 
 of which he was not previously apprised, under the pretext of its afford- 
 ing some presumptiom as to the offense which is the subject of the 
 *766 *indictment. In treason, therefore, no evidence is to be admitted of 
 any overt act that is not expressly laid in the indictment. This was 
 the rule at common law : and it is again prescribed and enforced by the 
 statute of Wm. Ill, which contains an express provision to that effect,(6) in 
 consequence of some encroachments that had been made in several state 
 prosecutions. The meaning of the rule is, not that .the whole detail of facts 
 should be set forth, but that no overt act, amounting to a distinct inde- 
 pendent charge, though falling under the same head of treason, shall be 
 given in evidence, unless it be expressly laid in the indictment ; but still, 
 if it conduce to the proof of any of the overt acts which are laid, it may be 
 admitted as evidence of such overt act8.(T) With this view, the declarations 
 of the prisoner, and seditious language used by him, are clearly admissible 
 in evidence, as explaining his conduct, and showing the nature and object 
 of the conspiracy. (8) And acts of treason, tending to prove the overt acts 
 charged, though committed in a foreign country, may be given in evidence. (9) 
 
 (1) Rules of practice in cases of felony, promulgated by the judges In 1837. 7 C. & P. 
 676 ; R. V. Stannard, Id. 673. That a light of reply is given as to the whole case see 
 R. V. Whiting, 7 C: &P. 771. 
 
 ■ (2) The object of this statute, as stated in the title, was " to prevent the fact of a pre- 
 vious conviction being given in evidence to the jury in the case before them, except when 
 evidence to character is given ;" and its operation is limited to felonies not punishable 
 with death. 
 
 (3) R. V. Qadbury, 8 C. & P. 676. 
 
 (4) Hurd V. Martin, Cowp. 441 ; cit. B. N. P. 296. 
 
 (5) R. V. Cole, Mich. Term, 1810, by all the judges, MS. 
 
 (6) 7 Wm. in, c. 3. § 8. 
 
 (7) See Fost. Cr. L. 245, 346 ; R. v. Vaughan, 13 How. St. Tr., 458 : R. v. Deacon, 15 Id. 
 747 ; S. C, Fost. Cr. L. 9. 
 
 (8) R. V. Watson, 2 Stark. R. 184. 
 
 (9) R. V. Deacon, 15 How. St. Tr. 747 ;.S. C, Fost. Cr. L. 10. 
 
 Note 206.— It was held that breaking open the United States mail (a felony) was inad- 
 missible on trial of an indictment for a treasonable insurrection. The reason given was, 
 that this was a distinct crime, indictable and punishable separately, and indeed fo* which 
 the prisoner was actually indicted ; though it seems to bo conceded, in the same case, that 
 had it been shown, or offered to be shown, that this act was in furtherance of, or any way 
 
SKC. III.] Evidence to be confined to Points in Issue. 645 
 
 On the trial of an indictment for burglary and larceny,(l) it appeared 
 upon the evidence, that the .prisoners might have entered, the house before 
 it was dark, and that thej' had not taken any part of the goods at 
 *767 the *time they were discovered in the house, upon which the counsel 
 for the prosecution proposed to give evidence of a larceny in the 
 house, cpn^mittld by the prisoners on a preceding day; but the court 
 rejected the evidence on the ground that it tended to prove a felony of a 
 totally distinct kind, which had no reference to the [Subject matter of the 
 prosecution ; the prisoners were, therefore, acquitted on this charge, but 
 were afterwards indiofed for the above oifense, and convicted. 
 
 But although it is usual to confine the prosecutor to one single act of 
 felony, yet when the character of the particular act charged against the 
 prisoner is to be collected from other acts done by him, all of them consti- 
 tuting one entire transaction, or mutually explanatory of each other, it is 
 discretionary in the judge to allow the prosecutor to go into the whole. (2) 
 
 eonnected with the treason, it would have been receivable. U. States v. Mitchell, 3 Dall. 
 357. Abbott, C. J., said, " he always understood that the ground of objectionjn Algernoa 
 Sydney's Case (3 Harg. St. Tr. 802), to the introduction of his private papers, was, not 
 that the papers had never been published, but that tliey had no relation to the treason- 
 able practices charged in thetitolictment." Bex v. Watson, 2 Stark. Eep. 140. In treason 
 and felony, evidence may be ^^en of the finding of articles secreted, although some time 
 subsequent to the prisoner's apprehension. Pape^ found at the lodgings of a conspirator, 
 at a period subsequent to the apprehension of the prisoner, may be read in evidence, 
 although no absolute proof be given of their previous existence, wliere strong presump- 
 tion exists that the lodgings have not been entered by any one In the interval between the 
 apprehension and the finding, and where the papers are intimately connected with the 
 objects of the conspiracy as detailed in evidence. Rex v. Watson, 2 Stark. Rep. 187, 139, 
 140. But in searching any house other than the prisoner's, a paper found in a trunk with 
 a signature of a perso» other than the prisoner, and not addressed to him, is not evidence, 
 unless it be proved that he was the owner of the trunk, or in some way connected with 
 the paper. United States v. Craig, 4 Wash. C. C. Rep. 729, 731. After proving aji overt 
 act of treason, in one county, evidence may then be given of an overt act of the sanie 
 species of treason in another, to show the qiw animo ; though the overt act must be laid 
 in the indictment as being in the particular county where the trial takes place. Respub- 
 Uca V. Malin, 1 Dall. 38, 34, 35. 
 
 (1) R. V. Vandercomb, 2 Lea. C. C. 816 ; S. C. East P. C. 519. For disproving a prisoner's 
 Oflibi, proof admitted of acts done by him, though criminal. R. v. Briggs, 2 Mo. & R. 199. 
 
 (2) R. V. Ell^ 6 B. & C. 145, several purloinings from a till ; R. v. Bgerton, R. & R. 376, 
 an infamous accusation on the following evening ; R. v. Moggs, 4 C. & P. 364, other acts 
 of administering poison to horses with intent to kill them ; R. v. Moore, 2 C. & P. 235, 
 acts of coining upon indictment for possessing instruments ; R. v. Long, 6 C. & P. 179,' 
 firing three ricks, for which there were separate indictments. For other cases, see 2 Kusfe, 
 Cr. & M., by. Greaves, 773 et seq. 
 
 Note 207. — See note 208. And on trial of an indiclement for receiving stolen goods 
 knowing them to be stolen, proof that other stolen goods were found in the defendant's 
 house, for the receiving of which, it appeared, an indictment was also.pending, was denied, 
 without aeythiug being said of putting the prosecutor to his election. Bell's Case, before 
 Riker, Recorder, 6 C. H. Rec. 97. And see Rex v. Smith, post note 208. In another case 
 of the same kind, evidence of the prisoner having received other stolen goods of the same 
 person from whom he received the goods in question, was denied. M'NiiTs Case, before 
 Radclifi', Mayor, 1 C H. Rec. 8. But on trial of an indictment for receiving several articles 
 stolen, if they were received at different times, though the prosecutor may be put to his 
 election of one out of several instances, yet evidence may be given of them all, for the 
 purpose of proving guilty knowledge, at least of all prior to that upon which the prose- 
 cutor elects to proceed. Rex v. Dunn, Ry. & Mood. Cr. Cas. 146. 
 
 Receiving goods of one person successively, gives a better chance to learn the character 
 in which he is 'dealing, than a single act of this kind ; a better chance to acquire that 
 knowledge which is the essential ingredient in the receiver's crime. It will readily be 
 perceived, therefore, that where one oifense cannot tend to fix the character of another it 
 is not admissible in evidence. Accordingly, on trial of a charge for stealing a watch 
 evidence that the prisoner had been guilty of another distinct larceny in stealing a cloak' 
 is not admissible for any purpose. Walker v. The Commonwealth," 1 Leigh's Rep. 574.' 
 The distinction is more fully illustrated in the mode of proving knowledge, &c., by difl^r^ 
 ent acts among dossiers in counterfeit currency, notices of which now immediately follojy 
 in the next notes. (See People v. Rands, 3 Park. Cr. 335). 
 
646 Of the Relevancy of Presumptive Proofs. [ch. x. 
 
 'Thus,' in a case of robbery, where the prisoners came with a mob to the 
 prosecutor's house, and one of them went Up to the prosecutor, and civilly 
 advised him to give them something to get rid of them— to show that this 
 was not bona fide advice, but in reality a mode of robbing the prosecutor, 
 ■evidence was allowed to be given of other demands oif jnoney made by 
 the same mob at other houses, at different periods of the same''day, both 
 •'before and aifter the particular transaction, when any of the pri^iners were 
 
 present. (1) A case is cited by Lord Ellenborough, C. J., (2) where 
 *768 a man *committed three burglaries in one night, and stole a shirt in 
 
 one place and left it at another, and they w^re all so connected, that 
 the court heard the history of the three. In like manner, where a robbery 
 or larceny has been effected at the same time as a murdet, (3) or rape, or 
 arson, (4) or burglary, (5) the possession of the stolen property is constantly 
 given in evidence against the accused lipon his trial for the latter offenses. 
 
 And it will make no* difference that the substantive felony is the subject 
 «f another indictment. (6) But it must be shown that the criminal act which 
 it 'is sought to give in evidence is necessarily connected with that which i« 
 the subject of the prosecution, either from some connection of time and 
 place, or as furnishing a clue to the motive on the part of the accused ; 
 Otherwise the former will not be admissible. Thus, upon an indictment for 
 Stealing some pork, a bowl, and a loaf of bresa,(7) it appeared that the 
 prisoner entered the shop of the prosecutor, and ran away ; in about two 
 minutes he returned, replaced the pork in a bowl, and took away the whole 
 together; in about h^lf an hour he came back and took away the loa;f. 
 Littledale, J., ruled that the taking away«the loaf could not be given in 
 ''evidence upon that indictment. He thought that the taking the pork, and 
 ■ returning in so short a time, and placing it in the bowl, and running off 
 with them together, must be taken as one continuing ttansaction ; but that 
 the lapse of half an hour was too long to admit of that construction. The 
 taking the loaf, therefore, was a distinct offense. 
 
 Proofs of other criminal acts to show intention. In offenses which con- 
 sist in the guilty knowledge or intention of a prisoner, i| is frequently neces- 
 sary to examine into collateral facts, in order to arrive at a just conclusion 
 upon a matter which must necessarily depend altogether on presumptive 
 evidence. Thus, in a prosecution for uttering a banlc note„*ll, or promis- 
 sory note, with knowledge of its being forged, proof that the prisoner had 
 
 uttered other forged notes or bills, whet^ier of the same kind or of a 
 *1Gd different kind,(8) or that he had other forged notes *or bills in his 
 
 possession, (9) is clearly admissible, as showing that he knew the note 
 
 (1) R. T. Winkworth, 4 C. & P. 444, by Park J., upon a special commission, after com- 
 municating with Lord Tenterden, C. J., Alderson J., and Vauffban, B. 
 
 (8) In R. V. Wylie, 1 N. R. 93 ; S. C, 3 Leaoli, 985. See also R. v. Storyer,-*3 Russ Cr. 
 & M., by Greaves, 775. 
 
 (3) See Wills on Circumstantial Evidence, 72 et seq. The memorable instance In tlio 
 trial of Courvoisier. in 1840, for the murder of Lord William Kussell, will otcur to 
 the recollection of the Teader. 
 
 (4) R. v. Rickman, 3 East P. C. 1035. 
 
 (5) See R. v: Gould, 9 C. & P. 364. 
 
 (6) R. V. Salisbury, 5 C. & P. 155 ; R. v. Rooney, 7 Id. 517. A different opinion formerly 
 prevailed. See R. v. Smith, 3 C. & P. 633. 
 
 (7) R v. Birdseye, 4 C. & P. T" 
 
 R 
 
 (8) R. V. Wylie, 1 New Rep. 93; S. C, 3 Lea. 985 ; R. v. Ball, 1 Camp, 834; S C R & 
 , Ct. C: 133. That other foTged notes of a different kind are admissible, thouffh the snb- 
 
 iect of another indictment, see R. v. Kirkwood, 1 Lew. C. C. 103 ; K. v. Hodgson Ibid 
 See albo R. v. Sunderland, Id. 103; R. v. Martin, Id. 104. The point was doubted 'in R 
 V,: Millard, R. & R. 245. n. See Bayley on Bills (4th ed.), 450; R. v. Smith. 3 G & P 633 • 
 R. V. Long, Id. 179. In R. v. Ball (Mo. C. C. 470), on an indictment for engraving the 
 notes of a foreign prmce, evidence of eujrraving the notes of another foreign prince was 
 held admissible. 
 
 (9) R. V. Hough, R. & R. 120 ; R. v. Rowley, Bayley on Bills, 447. The forgery of the 
 
SEC. III.] Miidence to be confined to Points in Issue. 617 
 
 or bill in question to be forged. And on a prosecution for uttering oeunter- 
 feifmoney, the fact of the prisoner having other counterfeit money upon 
 him, or of his having uttered other .pieces of money of the same kind, 
 is, according to common practice, evidence , of his having known 
 *770 *that the money, which he is charged with utteiring, was coun- 
 
 other notes or bills must be distinctly proved; and they ought to be produced (R. v. 
 Millard, ut supra ; R. v. Phillips, 1 Lew, C B. 105) ; where the point was doubted, and 
 the evMence received ; the notes had been destroyed. It would seem that presumptive 
 evidence of forgery, as that the prisoner destroyed the note, ought to be received. 
 
 Note 203. — helm's Case, before Riker, Recorder, 1 C. H. Kec. 46, 47. And see per 
 Woodbury, J., in Lovell v. Briggs, 3 N. H. Rep. 823. The cases are uniform that evidence 
 of uttering other spurious bills or notes of the same kind with the one in question on tlid 
 trial, is admissible on the point of the prisoner's knowledge or intent in respect to the. 
 bill or note in question. And in one case, on the trial of an indictment for uttering a bill 
 of exchange, with a forged acceptance, the court inclined that the passing of a similar 
 lall, even after the bill in question was passed, was admissible in evidence to show knowl- 
 edge in respect to the first. Rex v. Smith, 4 (!arr. & Payne, 411. But in such case it 
 should appear that the latter act is in some way connected with the former ; at least, thei 
 bill must be precisely similar ; so that it may be inferred that the latter was concocted at- 
 the same time and for the same fraudulent purpose. Rex v. Taveuer, .Carr. Supp. p. 195,. 
 cited also in note a. to Rex v. Smith. See Dibble v. People, 4 Park. Cr. 199. 
 
 The cases are not sa confident that bills of a different kind being passed by the prispnei,. 
 are admissible. Bay ley on Bills (Boston ed. 1826, p. 397), sets it down as questionable, 
 though Lb Blanc, J., in Hex v. Millard, Id. 396, note 54, thought they were ; and The Stato- 
 V. Twitty, 3 Hawks, 248. stated ^oat, holds this as to the poaaesmn of other notes. And see 
 Quin's Case, post, note 309. Several other American cases appear to make no distinction ;; 
 but let in evidence of other utterings without regard to the similarity or dissimilarity.. 
 The State v. Van Houten, 3 Penning, Rep. 672, and the note at 674 ; Smith's Case, before; 
 Biker, Recorder, 1 C. H. Rec. 49. But see per Peters, J., in Stalker v. "The State of Con- 
 necticut, 9 Conn Rep- 143, who cites 3 Stark. Ev. 379, per Bayley, J., who said that on an 
 indictment for forging and uttering a bill of exchange, evidence of a forged bank note in< 
 the pocket of the prisoner was not admissible. On trial for uttering a forged check on-) 
 one bank, the uttering another tbrged check on another bank was received in evidence 
 against the prisoner. Coffey's Case, before Colden, Mayor, 4 C. H. Rec. 53, 53, 54 ; S. C.», 
 Judicial Kepos. 293. The point was said by the mayor to.be new, and the sentence sus- 
 pended till the opinion of the Supreme Court should be taken. In the Judicial Reposi- 
 tory it is said, on arresting the prisoner, several spurious checks were found upon him,, 
 which it was offered to produce ; and to show that he had passed several spurious checks 
 dissimilar in amount to the check in question ; all of which was received in evidence. 
 And see Lagrille's Case, before Riker, Recorder, June, 1833 (1 Wheel. Cr. Cas. 415, 416),, 
 where a similar point was reserved in respect to the prisoner having passed bills unlike- 
 the one in question. 
 
 On the whole, the decided balance of authority would seem to be in favor of receivings; 
 the evidence, whether the other bills, &c., be ejusdem generis or not, (On, indictment for 
 uttering a counterfeit bank check purporting to have been certified by some person inn 
 the bank, it is sufficient to show that the certification was false. People v. Clements,. 
 26 N, y, 193,) 
 
 To warrant proof of passing other false bills, &c,, they must be produced, or their non- 
 production accounted for in the usual way, and the usual steps taken to let in secondary 
 evidence (Helm's Case, before Riker, Recorder, 1 C, H. Rec. 46, 47), as by giving notice lo 
 the prisoner to produce them, and showing that they were in his possession and ha 
 neglected lo produce them, or that they were destroyed by him. Lagrille's Case, before 
 Eiker, Recorder, June, 1833, 1 Wheel, Cr. Cas. 412, 414, 415, 416 ; Rex v. Millard, Bayley 
 on Bills (Boston ed. 1826), p. 396,inote 54, 
 
 Vaughan, B., refused to allow proof of uttering another note of the same description 
 with that in qnestion, because an indictment was pending for the other act of uttering. 
 Kex V. Smith, 3 Carr, & Payne, 633, and see note 207, 
 
 But on a second trial for passing spurious bills, the passing others for which the prisoner 
 was formerly tried and acquitted, may be received in evidence to show hie knowledge, ia 
 connection with his conduct and the circumstances leading to and attending the. former 
 trial ; though, in consequence of the acquittal, such circumstances come with diminished 
 force, Tinger's Cases, 5 C, H. Rec. 74, N. Y. Qen. Sess. M»y 1, 1820, before Colden, 
 Mayor ; Bartow's Cases, 3 Id. 143, before the same judge, Sept. 1818 ; Smith and Dough- 
 .erty's Cases, 4 Id, 166, before the same judge, N. Y. Qen. Sess. Dec. 1819. 
 
 State V. Petty. 1 Harp. Rep. 59, 61. .All the cases concur that, on trial of the charge of 
 passing counterfeit bills or notes, the fact that the prisoner had other similar bills or note* 
 in his possession, may be received as proof of knowledge or intent. (The wife's posses- 
 sion of an altered and forged bank bill, is not sufficient to charge the husband with 
 having it in his possession with intent to pass it ; Peoplev. Thorns, 3 Park Cr. 256). 
 
648 Of the Belevancy of Presumptive Proofs. [«h. x. 
 
 terfeit;(l) and proof of the prisoner's conduct in such other utterings. (as, 
 for example, that he passed by different names), is, for the same reason, 
 clearly admissible. (2) Such evidence, far from being foreign to the point 
 in issue, is extremelyv material ; for the head of the offense charged upon 
 the prisoner is, that he did the act with knowledge ; and it would seldom 
 
 be possible to ascertain under what circumsta,nces the uttering took 
 *11\ place (whether *from ignorance, or with an intention to commit a 
 
 fraud), without inquiring into the demeanor of the prisoner -in the 
 course of other transactions. The more detached in point of time the pre- 
 vious utterings are, the less relation they will bear to that' stated in the 
 indictment; and the question then would be, whether the evidence is 
 sufficient to warrant the inference of knowledge at one time, from such 
 particular transactions at another time. (3) That may be thought a question 
 to be left, in most instances, at least, to the jury. But whatever weight the 
 evidence may have (which is quite another consideration), it is, in general, 
 admissible; not as evidence of another offense, but simply of another 
 transaction in which the prisoner was engaged, affording a reasonable pre- 
 sumption as to his conduct with regard to the offense with which he is 
 charged. 
 
 It has been held that evidence of what the prisoner has said at a time 
 collateral to a former uttering, to show that what he said at the time of 
 such former uttering was false, is not receivable. (4) In like manner, upon 
 an indictment for forging a bill of exchange, what a prisoner said respect- 
 ing other bills which are not in evidence, is not admissible. (5) 
 
 The cases do not speak with so much confident uniformity : though, on the whole, tliey 
 appear to be decisive, that dissimilar counterfeits may be shown to have been in his pos- 
 session. Different acts and declarations of the prisoner in relation to other counterfeit 
 bank notes, as circumstances to show his acquaintance with bank notes in general, and 
 his skill in ascertaining whether they were genuine, were offered against him and received, 
 though it was objected that the others were dissimilar ; and several other distinct acts, in 
 passing bad notes, were received in evidence ; and all with a view to infer the prisoner's 
 knowledge. The State v. Twitty, 2 Hawks, 248, 258. And see Quin's Case, post, note 209. 
 A large sum of counterfeit bills being found with the prisoner while out of the jurisdiction 
 of the court, this was received in evidence against him. Van Houten's Case, before 
 Kadcliff, Mayor, 3 C. H. Rec. 73. In this case, one bill was similar. The question was not 
 raised upon the dissimilarity of the others; but the objection was put on the ground that 
 the bills were found in New Jersey, out of the jurisdiction of the New York court. See 
 Stalker v. State of Connecticut, ante, per Peters, J., &c., and S. C,post, note 209. 
 
 To let in proof of the possession of other spurious bills by the prisoner, as collateral 
 proof, the passing of the bill immediately in question must be first shown. Jones' Case, 
 before Riker, Recorder, and Irving, First Judge, 6 C. H. Rec. 86. People v. Davis, 21 
 Wend 309. People v. Rathbun, 21 Wend .^09. 
 
 (1) By Thompson, B., in R. v. Wylie, 1 N. R. 95 ; S. C, 2 Lea. 983. ■ See 1 Russ., Cr. & 
 M., by Greaves, 80, et aeq. 
 
 (3) See R. v. Millard, vi sfwpra; R. v. Tattershall, cited by Lord Ellenborougli, C. J., 2 
 Lea. 984. 
 
 Note 209. — On trial of an indictment for having knowingly passed a counterfeit Spanish 
 milled dollar, the prisoner's admission that he had made other like dollars and passed 
 ■them at fifty cents, even though connected with proof of counterfeiting implements being 
 found in his possession, appears once to have been denied, because the proof went to Show 
 a distinct offense. State v. Odel, 2 Const. Rep. 758, 759. But in a subsequent case, the 
 finding of the implements on the prisoner, unaccompanied with any admission on his 
 part, was received against him as proof of the quo animo ; and the objection that this 
 went to prove a distinct crime was overruled. State v. Antonio, 2 Const. Rep. 776, 784, 
 791, 792, 797. It vcould seem, from a remark of Bay, J., at the page last cited, that The 
 State V. Odel (supra), is misreported. On trial of an indictment for having in possession 
 false coin with intent to pass it, evidence was received that the prisoner had in posses- 
 sion at the same time counterfeit bills. Quin's Case, before Riker, Recorder, 6 C. H. Rec. 
 63, 64. But not that he had an engraved print, neither signed nor countersigned, it not 
 appearing that it was a forgery. Stalker v. The State of Connecticut, 9 Conn. Rep. 841. 
 (3) By Lord Ellenborough, C. J., in R, v. Wylie, 1 N. R. 94. 
 (4 R. V. Phillips, 1 Lew. Cr. C. 105, 186. See R. v. Faber, 7 C. & P. 224. 
 (5) R. V. Cooke, 8 C. & P. 686. 
 
BMC. .ni.] Eoidenee to be confined to Points in Issue. 649 
 
 It may be thought that collateral evidence of facts, occurring soon after 
 the offense with which a prisoner is charged, may sometimes afford as 
 reasonable a presumption of guilty knowledge, as when the facts occurred 
 at some time before the offense. Upon an mdictment for uttering a bill 
 with a forged acceptance, knowing it to be forged, it was proposed to giye 
 in evidence other forged bills, precisely similar, with the same drawers' and 
 acceptors' names, uttered by the prisoner about a month after the uttering 
 of the bUl mentioned in the indictment. Gaselee, J., after consulting Alex- 
 ander, C. B., was disposed to allow the evidence to be received, but said 
 that he would reserve the point for the opinion of the judges; upon which 
 the counsel for the prosecution declined" to press the evidence. (1) It is to 
 be observed, however, that in this case the similarity of the notes showed 
 that they originated with one person ; and, in an earlier case of an indict- 
 ment for uttering a forged bank note, where the prosecutors offered to 
 prove the uttering of another forged note, five weeks after the uttering 
 which was the subject of the indictment, the court (consisting of Lord 
 Ellenborough, C. J., Thompson, C. B., and Lawrence, J.,) held that the 
 evidence was not admissible, unless the latter uttering was in some way 
 connected with the principal case, or unless it could be shown that the 
 
 notes were of the same manufacture. (2) 
 *772 *Upon other proceedings, besides prosecutions for forgery, or the 
 
 uttering of forged notes or counterfeit, coin, it is frequently material 
 to give evidence of other acts, though not in issue, in order to raise a pre- ' 
 sumption as to the intent of the prisoner in committing the act for which 
 he is indicted. Thus, upon an indictment for maliciously shooting, evidence 
 was allowed to be given, that the prisoner, about a quarter of an hour 
 before the shooting with which he was charged, intentionally shot at the 
 prosecutor, (3) the whole being one continued transaction in the prosecu- 
 tion of the malicious intent of the prisoner. So, on a charge for sending a 
 threatening letter, other letters written by the prisoner, both before and 
 after that for which he is indicted, may be read in evidence, for the purpose 
 of explanation. (4) And, in like manner, in actions or indictments for libel 
 or slander, it has been held that other writings or words, whether in them- 
 Belves actionable or not,(5)' may be given in evidence, occurring both before 
 and after the subject of the action, in order to show the animus of the 
 defendant. (6) 
 
 Upon an indictment for receiving stolen goods, which had been all stolen 
 at the same time, but received at different times, the' prosecutor was put to 
 his election of some particular act of receiving ; but it was held, that evi- 
 dence might have been given of the prisoner having in his possession, and 
 of having pledged and disposed of, other articles of the stolen property, in 
 order to show his guilty knowledge, as all the property had been stolen from 
 
 '*. 
 
 (1) E. V. Smith, 4 C. & P. 411. 
 
 (2) E V. Taverner, 4 C. & P. 413, n. On a charge for sending a threatening letter, or of 
 publishing a libel, acts done by the prisoner subsequently to the offense charged, are 
 admissible to show the animus. See iiifra. In like manner, subsequent felonies have 
 been given in evidence to explain a preceding one. See E. v. Egerton, B. & R. 376 ; and 
 E. V. Winkworth, 4 C. & P. 444 ; supra, p. 767. 
 
 (3) E. V. Voke, E. & E. 531. 
 
 h) E. V. Robinson, 2 East P. C. 1110 ; S. C, 2 Lea. 749. 
 
 (5) Eustell V. JtlacQuister, 1 Camp. 49, n ; Pearson v. Lamaitre, 3 M. & G. 700, where 
 Pearce v. Ormsby, 1 Mo. & R. 455, and Symmons v. Blake, Id. 477, are questioned. 
 
 (6) Charlter v. Barrett, Peake %22 ; R. v. Pearce, Id. 75 ; Mead v. Daubigny, Id. 125 ; 
 Lee V. Huson, Id. 166 ; St&art v. Covell, 2 Stark. R. 93 ; Chubb v. Westley, 6 0. & P. 436 ; 
 Plunkett V. Cobbett, 5 Esp. 136 ; M'Leod v. Wakley, 3 C. & P. 311 ; Delegal v. Highley, 
 8 Id. 444 ; Barwell v. Adkins, 1 M. & Q. 807. As to proof of collateral matters in actions 
 for malicious prosecution, to show malice, see Caddy v. BarlBw, 1 M. & E. 275. 
 
 Vol I. 82 
 
650 Of the Relevancy of Prestcmptive Proofs. [vh. x. 
 
 the same persons, and had been brought to the prisoner by the party in- 
 dicted with him for the theft. (1) 
 
 Proof of other criminal acts, in prosecution for conspiracy to cheat. On 
 an indictment against several prisoners, for a conspiracy to carry on the 
 business of common cheats, proof is admissible that the prisoners at a 
 different time made similar representations to other ti-adesmen besides those 
 named in the record,(3) cumulative instances being necessary to 
 ♦VVS *prove the offense. The same sort of evidence is allowed in a pros- 
 ecution for barratry, and,' as before mentioned, in prosecution for the 
 greatest of all offenses, high treason. The same kind of proof is constantly 
 admitted in trials formurder ; where former grudges and antecedent menaces 
 are evidence of the prisoner's malice against the deceased. (3) 
 
 Rule as to conspiracy and riot. — On the trial of an indictment against 
 several persons for a conspiracy in unlawfully assembling for the purpose 
 of exciting discontent and disaffection, it would be irrelevant to inquire, on 
 behalf of the defendants, what the conduct of those employed to disperse 
 .the meeting may have been at the time of the dispersion, if no evidence has 
 been previously offered on the part of the, prosecution as to the conduct of 
 the meeting at that time or subsequently ; for the conduct of the dispersers 
 
 (1) K. V. Dunn, 1 Moo. C. C. 146. The report contains a marginal note, that the evi- 
 dence liad been confined to acts previous to that on which the prosecutor had elected to 
 proceed. The same point had occurred in respect of ntterings subsequent to that for 
 wjiich a prisoner is indicted. See further R. v. Hinley, 2 Moo. & B. 534; R. v. Mansfield, 
 Car. & M. 140 ; 3 Pai-k. Cr. 335. 
 
 (2) R. V. Roberts. 1 Camp. 400. See also R. v. Steel, Car. & M. 337. 
 
 Note 210.— Such evidence is equally applicable to indictments or actions for a fraud 
 resulting from a conspiracy among several. This, and the like, has often been held in 
 private suits. Thus in an action for obtaining goods by giving a false credit to A., 
 evidence that the defendant had represented him as credit-worthy to persons other than 
 the plaintiff', was received. Rumsey v. Lovett, Antli. N. P. Rep. 17. And the several 
 cases of Beal v. Thatcher, Gardner v. Preston, and Allison v. Matthieu, stated ante, are 
 to the' same effect. See also per Woodbury, J., in Lovell v. Briggs, 2 N. H. Rep. 223. 
 The same kind of testimony is uniformly received in our courts, on trials of indictments 
 for conspiracy. The object of it is to show the qiu> animo. Hitchcock's Case, before 
 Riker, Recorder, 6 C. H. Rec. 43, 44. In a note at p. 4, the Recorder stated, in passing 
 sentence, that the question had been submitted to and passed upon by Spencer, C. J., alter 
 examining the authorities. The same point was resolved in the People v. Bleecker et al., 
 before Riker, Recorder (2 'Wheel. Cr. Cas. 256, Nov. 1838). So, on trying whether a sale 
 of a wagon by a debtor to G., who sold it to C., the debtor's brother-in-law, who loaned 
 it to the debtor, was fraudulent in respect to a creditor, the latter was allowed to prove 
 that about the same time the debtor sold a farm, saying that C. would give the deed, who 
 did 80, and received pay in goods, which he delivered to the debtor. Benham v. Crary, 
 11 Wend. 83. (Other acts of a similar nature may be proved to show the intent with 
 which a deed was given ; Amsden v. Manchester, 40 Barb. 158.) 
 
 Indeed, where the party acts alone in his endeavors to defraud, the same doctrine is 
 equally applicable. T.,is was held in replevin for a horse, which the buyer had obtained 
 by falsely representing himself as a man of credit. Similar representations, and obtain- 
 ing goods fj;owi others about the same time, in the same town, were received as evidence 
 of a genettil plan to amass property by fraud. And this was held especially admissible, 
 as it was sought to connect him with the defendant as fraudulently claiming, under the 
 buyer, the horse and other property obtained pursuant to a general plan in which both 
 were connected. M'Kcnney v. Dingley, 4 Grcenl. 173, (See also Ciirv v. Hotailing, 1 Hill 
 H. 311 ; and Murfey v. Brace, 23 Barb. 501 ; and Bronson v. Wiman, 4 Selden, 182.) 
 
 (8) The People v. How. supra, 1 Wheel. Cr. Cas. 413. (In prosecutions for murder, 
 every fact and circumstanco is admissible in evidence which tends to show the motive, 
 the animua of the accused ; it may be shown that he was intoxicated, in order to show 
 that ho acted in the heat of passion or that his threatening words were senseless. People 
 V. Rogers, 18 N. Y. 9. On a trial for the murder of his wife, it may be shown that the 
 prisoner was disappointed in his pecuniary expectations founded on his marriage, and for 
 tl>i|.purpose the will of his wife's father is admissible in evidence ; Hedrickson v. People, 
 10 N. Y. 13. And on the tjrial of an indictment for the murder of his brother-in-law, it 
 may be shown that the prisoner was guilty of incest with the wife of the deceased, and 
 that deceased knew the fact. People v. Stout, 4 Park. Cr. 71, 115.) 
 
SEC. ili.J Evidence to he confined to Points in Issue. 651 
 
 of the meetmg can have ho "Ifearrnff on the intention and object of the 
 meeting itself; in other words, it is irrelevant to the malters in issue. (1) 
 In such a prosecution, as the taaterial points for the consideration of the 
 jury are, the genefal character and intention of the assembly, and the par- 
 ticular case of each defendant as connected with that general character, it 
 would be relevant to prove, on the part of the prosecution, that bodies of 
 men came from different parts of the country to attend the meeting, 
 
 an-anged and organized in the Bjime manner, andacting in concert. It 
 *11i would be relevant also to *show, that early on the day of the meeting, 
 
 in a spot at some distance from the place of meeting (from which very 
 spot a body of men came afterwards to the place of meeting), a great number 
 of persons, so organized, had assembled, and bad there conducted them- 
 selves In a disloyal, riotous, or seditious manner. (2) Further, it would be 
 relevant, on such a trial, to produce in evidence certain resolutions, which 
 had been proposed by one of the defendants, at a large assembly very 
 recently held m another part of the country, for the same professed object 
 arid purpose as were avowed by the meeting in question, and that the 
 defendant acted at both meetings as president or chairman ; in a question 
 of intention, as this is, it Would be most clearly relevant to show against 
 that defendant, that at a similar meeting, held for an object professedly 
 similar, such matters had passed under his immediate auipices.(3) 
 
 Upon trials of indictments for offenses involving a charge of conspiracy, 
 much evidence is usually produced, which does not relate to the particular 
 conduct of a prisoner. Such evidence, however, is not necessarily of a 
 presumptive nature. Thus, it is usual to give general evidence of a con- 
 spiracy previously to showing the connection of the prisoner with it. (4.) 
 It has been seen, in treating of hearsay evidence, that tl^ acts and declara- 
 tions of other eonspiratots in the absence of the prisotier are admissible 
 ■awainst him; (5) it has been seen also, in treating of admissions, that the 
 prisoner may 'be affected by writings from other persons, which came into 
 his custody before his apprehension. (6) In these cases^ however, the evi- 
 dence is of a direct nature, applying to the acts in'furtherance'of a conspiracy, 
 and not circumstantial as proving only collateral circumstances from which 
 these acts are to be inferred. 
 
 Acts and -Declarations of Prisoner, when Evidence for him. As in trials 
 for Conspiracies, whatever the pi-iaoner may have done or said, at .any 
 meeting alleged to have been held in pursuance of the conspiracy, is adinis- 
 sible in evidence against him, on the part of the prosecution ; so, on the 
 other hand, any other part of his conduct at the same meetings will be 
 allowed to be proved on his behalf: for the intention and deAgn of the 
 party, at a particular time^ are best explained by a complete view of every 
 part of his conduct at that time, and not merely from tl^e proof of a single 
 ami insulated act or declaration. In the case of Walter and others, (7) 
 
 who were tried for a conspiracy to overthrow the government, evidence 
 *775 having been produced, ©n the part of the *prosecution, to show that 
 
 the conspiracy existed and was brought into oven act at meetings in 
 the presence of Walker, the counsel for the prisoners w«re allowed to ask a 
 witness whether, at any of these times, he had heard Walker utter any 
 word inconsistent with the duty of a good subject ? The question was 
 opposed, but held by Heath, J., to be admissible. The prisoner's counsel 
 
 '' (1) R. v. Hunt, 3 B. & A. 568, 577. 
 
 (2) R. V. Hunt. 3 B. & A. 573, 574. 
 
 (3) Id. 568, 573. 
 
 (4) The Queen's Case, 2 B. & B. 
 
 (5) Su^a, Chap. 7, Sect. 1. 
 
 (6) Supra, Chap. 7, Sect. 10. 
 
 (7) 23 How. St. Tr. 1131. And see 31 M. 43. 
 
652 Of the Relevancy of Presumptive Proofs. [ch. x. 
 
 were also allowed, in the same case, to inquire into the general declarations 
 of the prisoner at those meetings ; as, whether the witness had heard him 
 say anything that had a tendency to disturb the peace of the kingdom; 
 and questions to the same effect were put to many other witnesses in 
 succession. 
 
 ThS question, in the case last cited, was expressly confined, and so 
 required by the court to be, to the conduct of the prisoner at those particular 
 meetings, which had been previously inquired into on the part of the prose- 
 cution. Proof of what the prisoner might have said or done at other meetings, 
 or at other times, unconnected with the transactions proved against him, 
 would not have been admissible evidence in his favor. In Lord George 
 Gordon's Case,(l) a witness was asked by the prisoner's counsel, on cross- 
 examination, as to a statement made by the prisoiier, on the night before a 
 meeting in St. George's Fields, and with respect to which meeting much 
 evidence had been produced. This was objected .to, and the court decided 
 that the question was not rf!gula,r. Lord Mansfield, C. J., held, that as the 
 counsel for the crown had given evidence of what the prisoner said at the 
 meeting upon the 29th of May, the counsel for the prisoner might show 
 the whole connection of what the prisoner said besides at that meeting ; but 
 that they could not go into evidence of what he said on the antecedent day. 
 And in Hanson's Case, (2) on a charge for promoting a riot, the counsel for 
 the prisoner was not allowed to prove what he had said privately to a friend, 
 previously to his going to the place of riot, respecting his motive in going 
 thither. Many other cases might be cited to the same effect. 
 
 The rule on this subject appears to have been extended much beyond the 
 line here laid down, on the trial of Home Tooke.(3) In that case, several 
 publications were given in evidence, on the part of the crown, containing, as 
 was alleged, republican opinions, which had been distributed by the prisoner 
 during the period assigned for the existence of the conspiracy ; and this 
 evidence was much relied on, as showing that the notion of a reform, which 
 was expected to be set up by the prisoner in his defense, was a mere pre- 
 text to cover treasonable designs : to repel this conclusion, the counsel for 
 the prisoner offeied in evidence a book, which had been written by the 
 prisoner tvelve years before, on the subject of parliamentary reform : 
 *775 the evidence was objected to, as having no *relation with the par- 
 ticular transaction in question, and because the prisoner's opinions, 
 whatever they were formerly, might have afterwards changed. But Eyre, 
 C. J., said, that tie question was not whether this book had reference to the 
 conspiracy charged, but whether it had not reference to the proof given in 
 support of the cnirge ; and he thought it evidence to rebut the supposition, 
 that the f efoi-m of Parliament was a pretense made . by the prisouw. The 
 book was accordiugly received in evidence. There is great authority, how- 
 ever, for doubting whether such evidence would, on revision, be considered 
 strictly admissible. (4) It seems, indeed, reasonable, if some other acts of 
 the prisoner, besides those charged in the indictment, are proved against 
 him for the purpose of showing his design in the affair in question, that he 
 should be allowed to explain those acts by proof of other cotemporaneous 
 particulars of his conduct, which show that he had a different design from 
 that imputed to him. But this limitation (namely, that such other particu- 
 lars, ofl:ered in evidence by the prisoner, ought to be cotemporaneous with 
 
 (1) 21 How. St. Tr. 543. — — 
 
 (2) 31 How. St. Tr. 4281. 
 
 (3) 1 East P. C. 61 ; Qurney's Report of S. C, Vol. 3, 36 ; 35 How. St. Tr. 845. 
 
 (4) See the observations on this point by Lord Ellenborough, C. J., in R. v. Lambert, 
 31 How. St. Tr. 355 ; S. C, 2 Campb. 400. In that case, which was an information for a 
 libel in a newspaper^ it was held that the defendant had a right to have read in evidence 
 any extract from tlie same paper connected with the subject charged as libelous, although 
 disjoined from it by extraneous matter, and printed in a, different character. 
 
SEC. ni.J Evidence to he confined to Points in Issue. 653 
 
 those proved on the other side, or, at least, confined within the same limits 
 to which the evidence on the part of the prosecution is subject), appears to 
 be just and necessary ; for otherwise the prisoner would be at liberty to take 
 the whole range of his life, in the course of which, his character and his 
 designs may have undergone a complete change. (1) 
 
 In Hardy's Case,{2) great liberty was allowed to the counsel for the 
 prisoner in examining into particulars of his conduct, even into Ms specu- 
 lative opinions ; and perhaps it may be questionable whether the rule was 
 not .carried to its utmost extent in that case. The question there put to the 
 witness was this : whether, from his personal acquaintance with the prisoner, 
 he had ever heard him state what was his plan of reform ? The question 
 was objected to. The overt act charged was that the prisoner, for the pur- 
 pose of accomplishing the treason of compassing the'king's death, did 
 conspire with others to call a convention of the people, in order that the 
 convention might depose the king ; and the counsel for the pris- 
 *777 oner *submitted, that for the purpose of showing that the conven- 
 tion was to be held, not with the design imputed by the indictment, 
 but with an innocent design, they might go into evidence of what the pris-- 
 oner had at other times declared, inasmuch as the counsel for the prosecution 
 had gone into all that the prisoner had, at any part of his life, declared 
 touching this fact, and had gone also into evidence of what other members 
 of the corresponding societies had said. They then defended the question 
 by an able argument, in the course of which several cases were cited from- 
 the State trials ; particularly the ease of Lord Russell (the one which came 
 nearest in principle to that under discussion), where the charge against the 
 prisoner was for compassing the king's death, and the overt act was con- 
 sulting to raise rebellion and seize the king's guards ; and Lord Russell, in 
 his defense, called many witnesses to speak to his affection towards the gov- 
 ernment, and his detestation of risings against it ; some of the witnesses 
 gave evidence of his conversations and sentiments on this subject, showing 
 his aversion to all risings of the people ; Dr. Burnett and Dr. Cox, in par- 
 ticular, spoke fully to this point, and without any objection either from the 
 court or from the counsel for the prosecution. After the question had been 
 argued at some length. Eyre, C. J., is reported to have thus addressed the pris- 
 oner's counsel :(3) "I do not know whether you can be content to acquiesce 
 in the opinion that we are inclined to form on the subject, in lyhich we go 
 a certain way with you. Nothing is so clear, as that all declarations which 
 apply to facts, and even apply to the particular case that is charged, though 
 the intent should make a part of J;hat charge, are evidence against a pris- 
 oner, and are not evidence for him ; because the presumption upon which 
 declarations are evidence, is, that no man would declare anything against 
 himself, unless it were true ; but that every man, if he were in difficulty, or 
 in apprehension of any difficulty, would make declarations for himself. 
 Those declarations, if offered as evidence, would be offered, therefore, upon 
 no ground which entitles them to credit. That is the general rule. But if 
 the question be what was the political speculative opinion which this man 
 entertained touching a reform of Parliament, I believe w*e all think that 
 
 (1) K. V. Abraham, 2 C. & K. 550, may be referred to as an example of this limitation. 
 The prisoner was indicted for burglary. The prosecutor's shop had been broken open, 
 but the only evidence to connect the prisoner with the offense was that some of the stolen 
 property was found in his possession. The defense at the trial was that he had fonnd it, 
 but it was unsupported by evidence ; and Alderson, B., said, that if it had appeared that 
 before suspicion attached to the prisoner he had given this account of his possession 
 of the property to his neighbors, the property being there at the time, and before search 
 made, he had not the .slightest doubt that, valeai quantum, this would have been very 
 competent for the prisoner. 
 
 (2) 24 How. St. Tr. 1065—1093. See trial of O'Coigly and O'Connor, 37 Id. 31, and 31 
 Id. 189, 310. 
 
 (8) 24 How. St. Tr. 1094. 
 
654 Of JEnidence: in. Matters of Opinion. [ch. x. 
 
 opinions may very well be learned and discovered by the conversations 
 which he has held at any time or in any place." The question afterwai-ds 
 put to the witness was, whether^ before the time of the convention which 
 was imputed to the prisoner, he had ever heard from him what his objects 
 were, and whether he had at all mixed himself in that business ; and, in 
 answer, the witness stated what he had heard from the prisoner respecting 
 his plan of reform. (1) 
 
 *11% *SECTION IV. 
 
 Of Evidence in Matters of Opinion. 
 
 In connection with the subject now under discussion may be considered 
 the question how far the opinion of a witness is admissible in evidence. 
 
 Opinion admissible in matters of skill. Generally speaking, a witness 
 must speak to facts, and . his mere opinion is not evidence. But upon 
 questions of skill or science, men who have made the subject matter of 
 inquiry the object of their particular study are competent to give their 
 opinions in evidence. (2) Such opinions, however, are to be deduced from 
 fects that are not disputed, (3) or, at least, from fa,ets that are in evidence 
 before the jury; they need not, however, be founded upon their own per- 
 sonal knowledge of si^ch facts, but may be formed upon the statement of 
 facts proved by others. 
 
 Thus, the opinions of medical men are evidence, not only as to the state 
 of a patient whom they have seen ; or as to the cause of the death of a 
 person whose body they have examined ; or as to the nature of the instru- 
 ment causing wounds which they have inspected; (4) but also in cases where 
 they have not themselves seen the patient, and have only heard the symp- 
 toms and particulars of his state detailed by other witnesses at the trial ; 
 their opinion on the nature of such symptoms is always admitted. Thus, 
 in prosecutions for murder, they are allowed to state their opinion, whether 
 the wounds or injuries, described by other witnesses, were likely to 
 *779 be the cause of death. (5) So, upon a question of sanity, *they may 
 form jtheir judgment from the representations which witnesses at the 
 trial have given of the conduct, manner, and general appearance exhibited 
 
 (1) 24 How. St. Tr. 1097. Another question, which is stated to have been put by the 
 prisoner's counsel to one of the witnesses, and Bjllowed to be answered, was, as to what 
 the prisoner had declared to be the object of the corresponding societies. This question 
 was not opposed. Ibid. p. 1101. 
 
 (3) See by Lord Mansfield, 0. J., in Folkes v. Chadd, 3 Doug. 157, 159 ; by Lord Kenyon, 
 C. J., in Chaurand v, Angerstein, Peake H. 44. And see 1 Smith Lea. Ca. 286. As to the 
 course adopted in equity, on such occasions, see Webb v. Manchester and Leeds Railway 
 Co., 4 Myl. & Cr. 120. 
 
 MoorehouBe v. Mathews, 2 Comst. 514 ; Price v. Powell, 3 Id. 322 ; Joy v. Hopkins, 5 
 Denio, 84; 4 Barb. 2j6, 31)1, 614; Crawford v. Andrews, 6 Geo. 241 ; Steamboat Clipper v. 
 Logan, 18 Ohio, 375; Pickard v. Bailey, 6 Foster (N. H.), 153 ; Hobby v. Dana, 17 Barb. 
 N. y. Ill ; Commonwealth v. Wilson, 1 Gray (Mass.) 337 ; 19 Barb. 388 ; Beed v. The 
 People, 1 Parker C, R. 481. 
 
 (3) See by Lord Mansfield, C. J., ut supra. 
 
 (4) See Burnet on the Criminal law of Scotland, p. 458. 
 
 So a physician who has made a, post hiortem examination may state the cause of death, 
 and wliether the deceased had been pregnant (The State v. Smith, 83 Maine R. 369) ; or 
 the derivatiou and nature of the diaoastj causing death (.Jones v. White. 11 Humph. 268); 
 or of the disease in question. Lush v. M'Daniel, 13 Ired. 485 ; Reed v. The People, »upra / 
 Lake v. the People, 1 Parker C. K. 495 ; S. C, 2 Kernan B. 358. 
 
 (5) See R. v. Sliaw, 3 ttu8B.,Cr. & M.. by Greaves, 934, 935 ; where contradictory evidence 
 of this nature was given. The recent case of Thomas Drory, tried and convicted at the 
 Essex Spring Assizes, 18"il, is another example. 
 
 See American cases cited in last note. 
 
BKC. rv.] In Matters of Skill. 655 
 
 by the patient ; or they may give their opinion whether certain eireumstanceB 
 were likely to produce a paroxysm of the dii9order.(l) But they cannot be 
 asked to state their opinion, upon the very point which the jury have to 
 decide, namely whether the act, for which the prisoner is bei«g tried, was 
 an act of insanity. (2) 
 
 In Polkes V. Chadd,(3) which may be considered as one'rof the leading 
 cases upon this subject, where the question was whether a bank, which had 
 been erected for the purpose of preventing the overflowing of the sea, 
 had caused the choking up of a harbor, it was held that the opinions of 
 engineers, as to the effect of such an embankment, were admissible. So a 
 shipbuilder may state his opinion as to the seaworthiness of a ship, from 
 examining a survey which had been made by others, and at which be was 
 not present. (4) In like manner, in aii action for a nuisance, an architeety 
 acquainted with the particular locality, may be asked if the nuisance com- 
 plained of depreciated the value of the houses in the neighborho»d.(5) 
 And a London stockbroker is a competent witness as to the course of busi- 
 ness of London bankers. (6) 
 *180 *Persons who are acquainted with the character of ancient hand' 
 writing, may give their opinion as to the date of an ancient docu- 
 ment,(7) or as to whether it is genuine or a forgery.(8) In like manner 
 where the question is whether a seal has been forged, seal engravers may 
 be called to show the difference between a genuine impression and that 
 supposed to be false.(9) In prosecutions for forging, or uttering forged 
 bank notes, or uttering counterfeit money, the opinion of a clerk of the 
 bank, or of an officer connected with the rtiint, is invariably resorted to. 
 So the opinion of an artist in painting, is evidence as to the genuineness of 
 a picture. And, upon questions as to the infringement of copyright in a 
 
 (1) B. V. Wright, R. & K. 456 ; K. v. Searle, 1 Moo. & R. 95. 
 
 Lake V. The People, supra ; a physician may give an opinion on a supposed state of 
 facts ; but if he has not heard the whole evidence in a case, he cannot ^ive an opinion 
 founded on what he has heard. 3 Kernan, 358. If the facts are not disputed, he may 
 give an opinion founded on theiff; not so where they are disputed. U. States v. M'Glue. 
 1 Curtis Ct. Ct. 1. 
 
 (3) R. v. McNaghtoii, 10 a. & Fm. 200, 311 ; S. C, 8 Scott, N. R. 595 ; 1 C. & K. 135, 
 136 ; R. V. Wright, vi supra. 
 
 2 Kernan, 358. 
 
 (3) 3 Doug. 157 ; ^. C. cit. by Buller, J., in Qoodtitle d. Revett v. Braham, 4 T. R. 498. 
 
 (4) Thornton v. The Roy. Exch. Ass. Co., Peake, 35 ; Beckwith v. Sydebotham, 1 Catnp. 
 117. 
 
 So a seafaring man, familiar with the proper mode of s'^owing a given cargo, may give 
 his opinion whether the cargo in question was properly stowed (Price v. Powell, S/^omst. 
 328; ; and an engineer, builder or master, may, after looking at a boat injured by collision, 
 give an opinion as to the direction from which the blow came (Steamboat Clipper v. 
 Logan, 18 Ohio, 375) ; to prdVe value of a vessel or damag'es to it, the witness need only 
 be acquainted with the value and such matters as affect it. Sikes v. Paine, 10 Ired, 280. 
 On a question of science, a witness who is not a scientific man cannot give an opinion as 
 an expert (Lincoln v. Barre. 5 Cush. 590); but he may give an opinion if he really have 
 knowledge (Pickard v. Bailey, 6 Foster, N. H. 153) ; so on a e[uestion of skill, or skill aUd 
 science. Lush v. McDaniel, 13 Ired. 485 ; iVcLean v. The State, 16 Ala. 673 ; Luning v. 
 The State, 1 Chand. (Wis.) 178. Nor can an expert give an opinion on subjects of general 
 knowledge. Concord Railroad v. Greely,*3 Foster (N. H.) 237. As to who are experts, 
 see Cook v. Parhara, 34 Ala. 21 ; Brantley v. Swift, Id. 390; Stein v. Bruden, Id. 130; 
 Hartford Pro. Ins. Co. v. Hai-mer, 3 Ohio (N. S.) 452; 17 Barb. HI j and Wiggins v. Wal- 
 lace, 19 Id. 338. 
 
 (5) Gauntlett v. Whitworth, 3 C. & K. 734. 
 
 So on a question as to the damage caused to a garden, plants, fruit trees and shrubs by 
 the burning of a brick kiln near it, a gardener may give his opinion. Vandine v. Burpee, 
 13 Met. 388. 
 
 (6) Adams v. Peters, 2 C. & E. 733. 
 
 (7) Tracy Peerage, 10 CI. & Fin. 191. 
 
 (8) See Davies dem. Lowndes. Ten. Am. Rep. C. P. 454, n. q, 456 ; and post. Vol. II, Ch. 
 6, Sect. 4, Of the Proof of ffandurriting. 
 
 (9) By Lord Mansfield, C. J., in Folkes v. Chadd, 3 Doug. 157. 
 
656 Of JSvidence in Matters of Opinion. [ch. x. 
 
 piece of music, the opinion of musical men is constantljr given in evidence 
 as to whether the piece alleged to have been pirated is original, or as to 
 how far the alleged piracy is an imitation. ^ 
 
 The genuineness of a post-mark upon a letter ie best proved by persons 
 from the post-office at which it was stamped ; but the evidence of person* 
 who are in the habit of receiving letters from that office is also admis- 
 sible.(l) 
 
 Upon an indictment for uttering a forged bill, which it was suggested 
 had been written over pencil marks that had been rubbed out, it was held 
 that the evidence of an engraver, who had examined the paper with a 
 mirror and traced the pencil marks, was admissible. (2) This, it is to be 
 observed, was rather a question of fact than of opinion, as the jury, with 
 the help of the same mechanical aids to which the witness had resorted, 
 would have been equally competent to form an opinion upon the subject ; 
 but, as such aids might not be at hand, or perhaps could not readily be 
 procured, the evidence seems properly to have been admitted, though, as it 
 was stated by the learned judge,(3) its weight would depend upon the 
 way in which it was confirmed. 
 
 JRule confined to matters of science and skill. The rule under considera- 
 tion must be considered as confined to the admissibility of the opinions of 
 scientific men, upon questions of science or skill ; witnesses, therefore, are 
 not permitted to state their views of legal or moral obligation, as to the 
 manner in which others would probably be influenced in case 
 *781 the parties had acted in one way rather than another ;(4) *nor can 
 they be allowed to give their opinion on things >Vith which a jury 
 may be supposed to be equally well acquainted. (5) 
 
 Therefore a medical man cannot be asked whether a physician, in refusing 
 to consult with another physician, had honorably and faithfully dischaged 
 his duty to the medical profession; (6) though if any specific rules of the 
 profession had been given in evidence, it seems it might have been shown 
 that a physician by violating these rules, had rendered himself unworthy of 
 the countenance of his brethren. (7) Thus, in an action for a libel, imputing 
 to the plaintifi", who was a member of the Jockey Club, that he had acted 
 dishonorably in withdrawing a horse which he had entered for a race, (8) a 
 witness, who was also a member of the club, had stated, on cross-examina- 
 tion, that by the rules of the club, the owner of a horse entered for a race 
 was entitled to withdraw him without giving any reason, and such owner, 
 if he had betted against the horse's winning, would be entitled to receive 
 the money : upon re-examination he was asked what was his opinion respect- 
 ing the morality of such a case ; and it was held that his opinion, upon this 
 subject, was legitimate evidence, with' a view of ascertaining the extent and 
 meaning of the rule in question. 
 
 In some cases it is difficult to say whether the evidence proposed to be 
 given is of a scientific character or not ; and there has been a difierence 
 of opinion as to the application of the rule in particular instances. Thus, 
 there have been different decisions upo'n, the question whether the opinion 
 of brokers or underwriters is admissible, as to the materiality of facts not 
 
 (1) Woodcock V. Houldsworth, 16 M. & W. 134 ; Fletcher v. Braddyl, S Stark. K. 64 ; 
 Abbev V. Lill, 5 Bing. 299. See the remarks of Best, C. J., Id. 303. 
 (3) 'R. v. Williams, 8 C. & P. 434. 
 
 (3) Parke, B., after consulting Tlndal, C. J. 
 
 (4) By Lord Denham, C. J., in Campbell v. Rickards, 5 B. & Ad. 846. 
 
 (5) By Tindal, G. J., in Bamadge v. Ryan, 9 Bing, 335. 
 
 So the opinions of innkeepers, that a guest keeping his money locked up in a trunk or 
 portmanteau is guilty of negligence, are not admissible. Taylor V. Monnot, 4 Duer R. 116. 
 
 (6) Ramadge v. Rvan, 9 Blng. 833. People v. Medical Society, 32 N. Y. 187. 
 
 (7) By Tindal, C. J., Id. 885. 
 
 (8) Qreville v. Chapman, 5 Q. B. 731. 
 
SEC. v.] In Matters of SMIL 657 
 
 communicated at the time of effecting an insurance. In the case of Car- 
 ter V. Boehm,(l) it was held that such evidence was not admissible. Lord 
 Mansfield, C. .J., in delivering the judgment of the court, there said : 
 " Great stress was laid upon the opinion of the broker ; but we all think 
 the jury ought not to pay the least regard to it. It is mere opinion, which 
 is not evidence. It is an opinion, which, if rightly formed, could be drawn 
 only from the same premises from which the court and jury were to deter- 
 mine the cause ; and therefore it is improper and irrelevant in the mouth 
 of a witness." This case was followed by that of Durrell v. Bederley,(2) 
 
 where a similar rule was laid down by Gibbs, C. J., and both these 
 *782 *authorities were recognized by the Court of King's Bench, in 
 
 Campbell v. Rickards.(3) 
 On the other hand, in Berthon v. Loughman,(4) Holroyd, J., ruled at 
 Nisi Prius, that the opinion of a witness, who was conversant in the busi- 
 ness of insurance, whether particular facts if disclosed to an underwriter 
 would have made a difference as to the amount of a premium, was admis- 
 sible evidence. This case was followed and confirmed by Rickards v. 
 Murdock,(5) and they were both recognized by the Court of Common 
 Pleas, in Chapman v. Walton. (6) 
 
 A learned writer, in commenting upon these apparently conflicting 
 decisions, has observed :(V)» "The question of materiality in an assurance 
 seems one which may possibly happen to fall within either of the above 
 two classes," [i. e., where the subject matter of inquiry does, or does not 
 partake so fer of the nature of a. science, as to require a course of previous 
 habit or study in order to the attainment of a knowledge of it] ; " for, set- 
 ting out of the question the cases of life policies, where the medical evidence 
 is unquestionably scientific, and necessary in order to enable the jury to 
 come to a right conclusion, (8) it is submitted that it may happen, even in 
 cases of sea policies, that a communication, the materiality of which is 
 in question, may be one, respecting the importance of which no one except 
 an underwriter can, in all probability, form a correct opinion. If such a 
 case were to occur, it possibly would not be considered as falling within 
 the decision in Campbell v. Kickard^. In that case the facts concealed 
 were of the very simplest nature ; a vessel which sailed after the one 
 
 insured, had arrived thirty-nine days before it, and it was easy, with- 
 *783 out *much experience in the business of an underwriter, to divine 
 
 the probable fate of the ship insured under these circumstances." 
 
 (1) 3 Burr. 1905 (A, D. 1764). 
 
 (2) Holt, 283. 
 
 (3) 5 B. & Ad. 840 (A. D. 1833, M. T.) In this case the authority of Rickards v. Mur- 
 dock, ut infra, was doubted. 
 
 The description of premises in a policy of insurance is construed as a warranty by the 
 insured that they are as described (Wall v. East Eiver Co., 8 Selden, 370) ; and the insured 
 is not permitted to show, where a building is insured as a store-house, that this term has, 
 by recent general usage, acquired a technical meaning bo as to be descriptive of a build- 
 ing used for storage and manufacturing purposes. S. C, 3 Duer, 264. The policy shows 
 what the contract was (Jennings v. Chenango Co. M. Ins. Co., 3 Denio, 77 ; French v. 
 Carhart, 1 Comst. 96) ; and a misstatement by the insured avoids the policy. Wilson 
 V. The Herkimer Co. M. Ins. Co., 2 Selden, 58. 
 
 (4) 2 Stark. E. 258 (A. D. 1817). 
 
 (5) 10 B. & C. 527 (A. D. 1830). 
 
 (6) 10 Bing. 57 (A. D. 1833, T. T.) In this case the authority of Durrell v Bederley (ut 
 lupra), was doubted. It is t» be remarked that the case of Chapman v. Walton, which 
 was decided in the term immediately preceding the decision in Campbell v. Rickards, was 
 not referred to in the latter case. 
 
 (7) 1 Smith Lead Ca. 286, a, note to Carter v. Boehm. And see the additional note by 
 the editors of the third edition. It appears that in Carter v. Boehm the fact, the conceal- 
 ment of which the broker thought material, was that the assured had, in two letters, 
 expressed his own opinions and fears as to the probability of a certain event taking place, 
 against the occurrence of which the assurance was effected. 
 
 (8) See Lindenau v. Desborough, 8 B. & C. 586. 
 Vol. L 83 
 
658 Of Eoidence, in Matters of Opinion, [ch. x. 
 
 In confemation of this view, it may be observed that the facts were fd a 
 very different nature in Chapman v. Walton. They were as follows: 
 a broker had eifected a policy on a ship upon a voyage to St. "Iltomas, in 
 the West Indies, with leave to call at certain ports. The assured after- 
 wards received a letter from his supercargo announcing his intention to sail 
 for the Canaries, and thence to other West India islands, besides St 
 Thomas. The Canaries were not covered by the policy. The assured took 
 the letter to the broker and told him that the voyage was altered, and that 
 he left him to do the needful with it. The broker got the policy altered by 
 adding leave to proceed to the other West India islands named in the letter. 
 The vessel was lost at the Canaries, and it having been decided in an action 
 upon the policy, that the voyage was not covered by the alterations, an 
 action was brought by the assured against the broker for negligence in not 
 having procured the proper alterations to be made. On the part of the 
 defendant several policy brokers were called, and the policy and letter being 
 placed in their hands, they were asked what alterations in the policies a 
 skillful insurance broker ought, in their judgment, to have formed, having 
 these documents in his possession, and being instructed to do the needfiil. 
 And it was decided that this question might properly be put. Tindal, C. 
 J,, in delivering the judgment of the court remarked: "The point to be 
 determined is, not whether the defendant arrived at a correct conclusion 
 upon reading the letter, but whether, upon the occasion in question, he did 
 or did not exercise a reasonable and proper care, skill, and judgment. This 
 is a question of fact, the decision of which appears to us to rest upon this 
 farther inquiry, viz : whether other persons exercising the same profession 
 or calling, and being men of experience and skill therein, would or would 
 not have come to the same conclusion as the defendant. And it appears to 
 us that it is not only an unobjectionable mode, but the most satisfactory 
 mode of determining this question, to show by evidence whether a majority 
 of skillful and experienced brokers would have come to the same conclusion 
 as the defendant. It is not a simple •abstract question, as supposed by the 
 plaintiff, what the words of the letter mean : it is what others, conversant 
 with the bustaess of a policy broker, would have understood it to mean, 
 and how they would have acted upon it under similar circumstances. (1) 
 
 The evidence, therefore, was held to be receivable in this case, upon the 
 same principle as, upon an indictment against a surgeon for manslaughter 
 by causing a patient's death by negligent or improper treatment, the evi- 
 dence of professional men is received, both for the prosecution and for the 
 
 defense, as to what, in their opinion, would be the proper method 
 *784 *of treatment under the' symptoms which the patient is proved to 
 
 have exhibited. 
 
 In oases of collision. Upon the same principle, in questions arising out 
 of collisions on the sea or on navigable rivers, a master of the Trinity House, 
 oi^a nautical witness, may give his opinion, after hearing the evidence, as 
 to what ought to have been done by the defendant under the circumstances 
 detailed: he cannot indeed, be asked in direct terms whether he thinks 
 the conduct of the defendant's captain was right or not, (2) or whether the 
 facts proved showed negligence on his part; (3) as in such cases the witness 
 would in fact be placed in the situation of the jury, and asked to draw a 
 conclusion of fact, and then to give his opinion upoH it. But the same result 
 may in effect be attained by asking the witness whether an officer of com- 
 petent skill would have acted in the same manner as the defendant's captain 
 
 (1) 10 Biug. 63, 64. 
 
 (2) By Coleridge, J., in Sills v. Brown, 9 C. & P. 604, 
 
 (3) See Malton v. Nesbit, 1 C. & P. 70, 73. The marginal note in this case is calculated 
 to give an erroneous impression of the qaestipn that was really allowed to be put. 
 
SEC. ry.] In Mcaters cf Skill. 659 
 
 had done,(l) or whether, in his opinion, a collision could have b'eeh avoided 
 by proper care on the part of the captain. (2) 
 
 In collisions between carriages on land, such evidence is hot required, 
 as the jury may be presumed to be sufficiently acquainted with what is termed 
 the " rule of the road," to be able to draw a correct inference from the facts 
 in evidence without the assistance of any persons possessing any. peculiar 
 skill or knowledge apon the subject. 
 
 Sdndwriting. The proof of handwriting does not properly fall under 
 this branch of the law of evidence, for although, except in cases where the 
 witness can speak positively to the writing of a particular document, as, in 
 the instance of an attesting witness, such proof necessarily depends Upon 
 opinion, still that oJ)inion is always required to b6 founded upon some 
 acquaintance, on the part of the^withess, with the handwriting in question. 
 This subject will, therefore, be deferred to another portion of the work. (3) 
 
 Foreign laws. So likewise the proof of foreign laws, and of their opera- 
 tion and effect, which must be proved by witnesses who are acquainted with 
 them, might properly be treated of in this section, as the evidence in ques- 
 tion depfends, in a great measure, upon the opinion or skill of the witheBs 
 
 who is called to speak upon the matter. But it is considered thiat 
 *785 this subject will be *more conveniently treated of in another portion 
 
 of this work, in connection with the admissibility and effect of the 
 proceedings in foreign Courts. (4) 
 
 (1) By Abbott, G. J., In Maltba v. Nesbit, ut liipra; Jameson v. Drinkald, 22 Eng. Com. 
 laaw B. 
 (%) By Coltmah, J., in Fehwick v. Hall, 1 C. & K. 312. 
 As to the diligence and skill required ih Suill cases, see Edwards on Bailinents, 60^12. 
 
 (3) PdSf, Vol. II, Chap. 6, Sect. 4, Oftfie Proof of Handwriting. 
 
 (4) Po^, Vol. II, Chap. 1, Sect. 6. 
 
 When Opinions of Witneisei a/re Admissible. Note 210ft. Upon a question bi value, the 
 opinion of a witness who has seen the thing in question and is acquainted with the value 
 of similar things, is coinpeteit ievideiide. Clark v. Baiird, 5 Seld. 183. But he bannot be 
 asked such questions as these : " How much, in your opinion, was the damage sustained 
 by the plaintiff in consequence of feeding the cattle the poor hay instead of that agreed 
 npoh?" (Morehouse V. Mathews, 3 Colnst. 314-) " What damages, iii your opinion, hSB 
 the plaintiff sustained?" (Norman v. Wells, l7 Wend. 138.) "From the descriptibh of 
 the situation of the boat in question, as given by the witnesses, what would the damitges 
 be ?" (Paige v. Hazisard, 5 Hill, 603.) Questions cannot be asked, the answers to which 
 will involve matters of law as well as of fact ; illustrated in the above cases and in Qibsisn 
 V. Gibson, 9 Terg. 329, and in Jameson v. Drinkald, 12 Mobfe, 148, 22 Eng. Com. L. ft. 
 See klso to the Same point, Dunham v. Simmons, 3 HiU, 609 ; Lincbln v. Saratoga R. R. 
 Go. 23 Wend. 425 ; Mayor, &c. of New York v. Pentz, 24 Wend. 673. Within a limited 
 range, the value of many articles, real estate, for example, varies with the varying judgj- 
 ments or opinions of Witnesses, and is to that extent a matter of opliiibn. Generally, 
 however, each witness states th^ value of a given article as a fact of opinibh, and the value 
 sb giv6n is as truly a fact as the agreement of two persons fixing a price iljibn it. 5 Seld. 
 19£-196 ; Joy t. Hopkins 5 Dfenio, 84. In respgct tb articles having a fixed market 
 vdlae, the witness gives the value as he would any other fact, as he would state the price 
 df gold o* the fate of exchange. 17 N. Y. Rep. 347 ; 3 Coihst. 848, 3Y1 ; 4 Id. 47fi. The 
 value of services may also be proved by the opinions of witnesses acquainted ■ivith the 
 value of labbr at the tirde and place where they wei'e rendered (Lewis v. Tricky, 20 
 Barb. 387 ; Brill v. Flagler, 23 Wend. 354); or the value of a horse by the opinion of a 
 witness accustomed to deal in horses. McDonald v. Christie, 42 Barb. 36. 
 
 In a suit by a retiring partner against the firm tb recover the value of the plaiitiff's 
 interest in April, '56, one of the parties, plaiiitiff's witness, testified to the value of the 
 partiierShip property in the latter part of '55, stating thtlt he gave this estimate of value 
 without having before him inembranda T^hicTi he had made and that he Sold out in 
 November. When this question was put to him oh ctoss-examinatibn : " What did ybu 
 sell but ybur one-quarter interest in this property, real and personal, Ibr 1" and the court 
 held the answer adUiissible, since it inight elicit evidence tending to show that the estimate 
 made and stated was inaccurate and unreliable. Dorrity v. Russell, 7 Bbsw. 539. For 
 the like purpose, the witness, to the value of an article, may be asked on cross-exain- 
 ination, what pri(ie it brought bn a sale j and in all cases where an expert is called to 
 express an opinion^ he may be cross-examined as tb his qlialificatibns, and also as to the 
 
660 Opinions of Witnesses. [ch. x. 
 
 facts or data upon which he forms his opinion. Brill v. Flagler, 23 Wend, 354; Lincoln 
 V. Saratoga & S. E. K. Co. Id. 435 ; 5 Seld. 871. 
 
 Where a firm was dissolved and a nfjw firm was formed under the same name, which 
 purchased goods of another house of whom the former firm had made purchases, and the 
 new firm gave a note for the goods purchased ; it was held that a witness testifying to 
 the facts could not be permitted to answer this question : Was this note the note of the 
 old firm or of the new finn ? the answer to it being the very fact which it was the province 
 of the jury to determine. Henroy v. Van Pelt, 4 Bosw. 60. In a suit for damages for 
 Inducing plaintifi^ by false and fraudulent representations to sell and deliver goods to a 
 third person, it seems plaintiff cannot testify on the direct examination that he sold and 
 delivered on the faith of such representations, that is to say, will not be allowed to answer 
 the direct question to that effect (Shaw v. Stine, 8 Bosw. 157) ; on the same principle that 
 a voter will not be permitted to state the mental purpose with which he deposited his 
 ballot ; his intention is to be ascertained from his acts. People v. Saxton, 32 N. Y. 309. 
 
 Ttere is a class of cases in which the opinions of witnesses are received ex necessitate, 
 as the only means of ascertaining a fact pertinent to the issue. In the case of McKee v. 
 Nelson (4 Co wen, 355)Vhich was an action for breach of promise of marriage, a witness 
 who knew the plaintiff and had observed her conduct and deportment towards the defend- 
 ant, was permitted to testify whether in her opinion the plaintiff was sincerely attached 
 to him : a fact which it is plain could be proved in no other way. So in an action for 
 criminal conversation, a witness who was acquainted with the parties was permitted to 
 give her opinion as to the degree of affection entertained by the wife for her husband. 
 Trelawhey v. Colman, 3 Stark. 191. It is assumed in these cases that the conduct and 
 deportment of the party, indicating the state of the affections, cannot be suflSdently des- 
 cribed to the j ury. " We do not see how the various facts upon which an opinion of the 
 plaintiffs attachment must be grounded, are capable of specification, so as to leave it, like 
 ordinary facts, as a matter of inference to the jury." 4 Cowen, 355. 
 
 On the trial of an indictment for murder (The People v. Eastwood, 14 N. T. Rep. 563) 
 this question addressed to a witness who was present at the affray, was held admissible : 
 " From his conduct and deportment and other facts connected with it, state whether in 
 your judgment he was to any considerable extent under the influence of intoxicating 
 liquors?" The Court of Appeals regarded the qaiestion as calling for a fact, to which 
 even a child might reply. " Whether a person is drunk or sober, or how fer he was 
 affected by intoxication, is better determined by the direct answer of those who have seen 
 him than by their description of his conduct." 
 
 Questions are not allowed which in any form call for a legal opinion from the witness, 
 as if such and such payments were proper for a young man so atuated. Merritt v. Sea- 
 man, 2 Seld. 168. Nor can, a witness be asked the very question upon which the jury is 
 to pass, namely, the amount of the damages in an action for erecting a nuisance ; Fish v. 
 Dodge, 4 Denio, 311 ; or the damage accruing by reason of a saw mill's lying still for a 
 fortnight ; Dolittle v. Eddy, 7 Barb. 74 ; or by the erection of another mill on the same 
 stream ; Norman v. Wells, supra, 17 Wend. 136 ; or by the withdrawal of water from a 
 tavern ; Harger v. Edmonds, 4 Barb. 256, 361 ; or by the refusal to gSve possession of 
 demised premises ; Giles v. O'Toole. 4 Barb. 361 ; or by the building of a dam across a 
 stream of water ; Shepherd v. Willis, 19 Ohio, 143 ; or by reason of the inability of plain- 
 tiff to attend to his business in consequence of an injury received by him ; 33 Wend. 435 ; 
 or whether witness in an action for an injury caused by defendant's negligence, consid- 
 ered it dangerous to use a steam dredge without a spark catcher, that being the issue on 
 trial ; Teall v. Barton, 40 Barb. 137. Opinions, belief, deductions fix)m facts, and such 
 like, are matters which belong to the jury ; and when the examination extends to these, 
 and the judgment, belief and inferences of a witness are inquired into as matters proper 
 for the consideration of a jury, their province is^ in a measure usurped ; the judgment of 
 witnesses is substituted for that of the jury." Per Ch. J. Nelson. Witnesses are to 
 state facts, not opinions, except in those cases where experts are permitted to state opin- 
 ions. They are not allowed to ^ve their opinions as to the amount of the damages, nor 
 as to the amount of a given thmg injured or lost. The form of the question is not so 
 material; they are not at liberty to conjecture as to amounts. Cook v. Brockway, 31 
 Barb. 331. But a witness may be asked whether plaintiff was in possession of a farm. 
 Knapp V. Smith, 27 N. Y. 277. 
 
 The value of fruit trees destroyed by fire may be proved by the testimony of a compe- 
 tent witness, a nurseryman residing in the neighborhood and acquainted with the fruit 
 business and with the value of similar property there. Assuming the description of the 
 property given by another witness, he may express his opinion in respect to the value of 
 tho, trees : Whitbeck v. N. Y. Central R. R. Co., 86 Barb. 644 ; so in trover for a manufac- 
 tured article which defendant refuses to produce ; Beecher v. Denniston, 13 Gray, Mass. 
 854; so in an action for trespass and injury done by cattle in a field of oats, the witness 
 testifying to the trespass may give his opinion as to the damage done by the cattle ; 
 NelUs V. McCann, 85 Barb. 115. So where the action is for injury to real estate caused by 
 cutting and removing standing timber, competent witnesses may give their opinion as to 
 the value of the premises with the timber standing and their value after it has been 
 
SEC. IV.] Opinions of Witnesses. 661 
 
 removedj Van Deusen v. Young, 29 Barb. 9 ; but it must appear that the witness giving 
 his opinion is competent and that the issue involves that precise inquiry ; he cannot be 
 asked to state the amount of the damages : S. C, 29 N. Y. 9. Though the damages may- 
 be in such case the difference between the value of the land with the timber standing and 
 its value without the timber, it is not admissible to ask the witness to state the amount 
 of the damages, which simply calls upon him to make the deduction and state the differ- 
 ence between the two values thus given. In Simons v. Monier, (29 Barb. 419), it was 
 also held erroneous to ask a witness how much damage the fire did to f)laiutlff 's farm, the 
 action being brought to recover the damages thereby sustained. 
 
 When a person is incapable of managing his affairs, or has not capacity to transact 
 business, the law adjudges that his business transactions a,re void ; and the degree of 
 mental imbecility which will warrant this conclusion, is a question of law. Stewart v. 
 Lispenard, 26 Wend. 255. The presumption being in favor of capacity, the disability or 
 want of capacity is treated as an exception to the general rule, and must consequently be 
 pleaded and established by evidence, 26 Wend. 235 ; 4 Cowen, 207. An inquisition estab- 
 lishing lunacy or habitual drunkness is prima facie evidence of the fact so found against 
 all persons. Note 235. In this State, it is conclusive of his incapacity from the date of 
 the inquisition ; Wadsworth v. Sharpsteen & Moffatt. 4 Seld. 388, but not conclusive of 
 his incapacity to make a will ; Leonard v. Leonard, 14 Pick. 284 ; 4 Seld, -393 ; Breed v, 
 Pratt, 18 Pick. 115. 
 
 Complete intoxication which deprives a man of the use of his reason and sinderstanding, 
 renders him incapable of making a contract. Gore v. Gibson, 13 Mees. & Wels. 623. And 
 the fact of drunkenness may be proved by the direct answer to a question which involves 
 the observation and j udgment of the witness ; 14 N. Y. R. 562. 
 
 When the capacity of a party to dispose of his property by vrill, or to convey lands by 
 deed, is put in issue on the trial, the opinions of witnesses are not in general receivable 
 as evidence ; that is to say, the opinions of unpfofessional witnesses can only be given 
 upon the appearance, conversation, and conduct detailed by them. To this extent the 
 opinion of the witness is admitted as a matter of necessity. " A witness can scarcely con- 
 vey any intelligible idea upon such a question, without infusing into his testimony more 
 or less of opinion. Mental. imbecility is exhibited in part by attitude, by gesture, by the 
 tones of the voice, and the expression of the eye and face. Can these be described in 
 language so as to convey to one not an eye-witness, an adequate conception of their 
 force ?" Per Selden J. in De Witt v. Baily & Schoonmaker, 17 N. Y. Rep. 340. But the wit- 
 ness cannot be asked the very question in issue ; id. ; Deshon v. The Merchants Bank, 8 
 Bos. 461. The necessity of allowing the witness to express an opinion upon the facts to 
 which he testifies, bearing upon the capacity of the testator, is stronglj' illustrated by the 
 facts developed in the case of Delafield v. Parish, 25 N. Y. Rep. 9-131 ; and is distinctly 
 afBrmed in Clapp v. Fullerton, 84 N. Y. 190. And the same rule has been adopted in 
 Pennsylvania, Georgia, Alabama, Maryland, Ohio, Connecticut, Vermont, Tennessee, 
 North Carolina, and Indiana : Rambler v. Tryon, 7 Serg. & Rawle, 90 ; Wogan v. Small, 
 11 id. 141 ; Grant v. Thompson, 4 Conn. 203 ; Kinne v. Kinne, 9 id. 103 ; Dunham's 
 Appeal, 37 Coiln. 192 ; Doe v. Reagan, 5 Blackf. 217 ; Gibson v. Gibson, 9 Yerger 329 ; 
 Clary v. Clary, 2 Iredell's Law Rep. 78 ; The State v. Clark, 12 Ohio 483 ; 6 Geo. 324 ; 13 
 Ala. 68 ; 7 Gill, 28, 29, 30 ; 7 Verm. 158 ; Morse v. Crawford, 17 id. 499 ; and has been 
 acted upon in the Circuit Court of the United States ; Harrison v. Rowan, 3 Wash C. C. R. 
 580. See the opinion of the court by Mason J., and the dissenting opinion of Denio 
 J. in DeWitt v. Baily & Schoonmaker, 5 Seld. 388 and the prevailing opinion by Selden 
 J. in the case 17 N. Y. Rep. 342. The rule allowing the witness to give his opinion con- 
 nected with the facts to which he testifies, is subject to certain qualifications. In the 
 first place, it should appear that the witness is acquainted with the person of whom he is 
 to speak, and has heard him converse, and has observed Ms conduct generally, or in 
 respect to some particular transaction, and the opinion he gives must he such as he has 
 formed from his own observation and not from information otherwise derived ; in the nest 
 place, he should relate the facts upon which it is based so far as he is able to do so. The 
 weight of the testimony so given is to be determined by the jury. Clark v. Fisher, 1 
 Paige Ch. R. 174 ; Delafield v. Parish, supra, 26 Wend. 255 ; Culver v. Haslam, 7 Barb, 314. 
 
 There is another qualification of the rule admitting the bpinion of the witness on the 
 question of mental capacity ; he cannot be asked questions the answer to which will 
 involve matter of law as well as matter of fact ; as whether the testator was capable of 
 making a will ; Gibson v. Gibson, sv^a ; or whether he considered the grantor non 
 compos mentis, or, which is the same thing, incapable of managing his afeirs. B Seld. 
 371 ; 17 N. Y. Rep. 347. 
 
 Subscribing witnesses to a wUl may be inquired of generally as to the judgment they 
 formed of the soundness of the testator's mind at the time of the execution of the 
 will, upon the ground that the law has placed them around the testator to ascertain and 
 iudge of his capacity; Clapp v. Fullerton, 34 N. Y. 190 ; Poole v. Richardson, 3 Mass. 
 330 ; Needham v. Ide, 5 Pick. 510 ; 7 Barb. 322 ; 5 Seld. 380, 396. 
 
 Where the sanity of a prisoner comes in question on a trial for murder, hypothetical 
 questions based upon what the counsel claims to have been proved in the cause, may be 
 
662 Opinions, of Mi^er(s. [ch. x. 
 
 put on a cross examinatipji to medical mtnesses who haye testified in relation tp the. 
 prisoner's sanity ; in particular, this question by prisoner's counsel was held admissible :• 
 " If a man shp,uld kill % woman \yith whom he, lives as hiS: wajfe, 8,nd their tvo infant, 
 ohildrenj with an ax, in mid day,, and at the same time destroy the furniture in the house,, 
 and break the windows, and make no attempt tp conceal the deed, or to escape, but should 
 atay- near the reijwinB of those he had killed, would it be, any evidence of insanity 1" 
 people y. Lake, 12 N,. Y. 3 Kern. 358. 
 
 Where a medica^manj, conversant with the dipease of insanity, has bad sufficient pre-, 
 vious opportunity by his ovirn observatipfl to becom* acquainted with the personal h.abits, 
 conduct and appearance of the accused, upon authority I think he may be asked the 
 general question, and give U^ opinion as to the sanity or insanity of tha prisoner. Per 
 Hand, J., in The People v. iSie- But such witnesses, wlio, vrithout any personal knowl- 
 edge of the prisoner, have heard a part but not all the evidence given on the tri^ re.Latin^ 
 tp, lu.S| mental condition, cannot give their opinions as to his sanity, founded upon the. por- 
 tion he^rd by them. Id. 368 ; Heald v. Thing, 45 Maine, 393. And it seems that, b«ng 
 present through the trial, the witness cannot give his opinion upon the whole evi|(J(ence, 
 without a^ny personal knowledge of the prisoner, since that would require him in the, 
 first pl^ie to pass upon the truth of the evidence, whiph is matter of fa^ for the jury- to 
 find, "The proper course is to, ask the witness what such and sjioh assumed facts indipate 
 in respect to the prisoner's sanity. 5 Sold. 195. If acquainted with the facts, his opinion 
 upon them may be. given, with the facts themselveSi \yendell v. Mayor, &o., of Troy, 39 
 Barb. 329. Not being an expert, witness cannot be asked the broad question, " Was he 
 out of his mind?" Deshon v. Merchant's Bank, & Bosw. 461. It is admissible on a 
 criminal trial to ask an expert, a chemist, whether another expert, a physician, can deter- 
 mine with any degree of certainty from a post mortem examination the period of time 
 when certain inflammation was caused. The People v. Ebirtung, 17 How. Pr. Rep. 151 ;. 
 S. C. 4, Parker Cr. 319, 
 
 On qu,estions of science, art, sjcill, trade, and others of like kind, experts are.permittedj 
 to give their opinions. 1 Sreenl, Ev. § 440,; 5 Seld. 375. Thirf evidence is received on the 
 ground thati the questions involve matters w;hiph lie beyond the scope of the observation> 
 knoTyledge. and experience of men in general ; so th^t the jury, csmnot be presumed com- 
 petent to, arrive at a jiroper determipation by the unaided exercise, of their judgment 
 on the facts. JofFerson. Ins. Co. v. Cotheal, 7 Wend. 72, 78. 
 
 It must of course appear that the witness called as an expert, is qualified to speafc 
 uppn the point on which he teatifips; in other, words, that he is a person of knowledge, or 
 skill in that particular department of science, art or trade. Harris v. The Panama E. K, 
 Co., 3 Bosw. 7. 13 ; 43 Barb. 39. Thus, a physician may express an opinion that the 
 wpujjd given, or the ppison administered, produqed the death of the deceased; but in 
 such a case he must state tlie facts on, which his opinion is founded. Id. 13 ; 8' Mass, 371 ; 
 9 Id, 225. And an engineer, familiar with the bumnpss, may be, asked the meaning of 
 sijecifications for building an. engine and boiler. Colwell, v. tawrence, 38 Barb. 643. He 
 is npt allowed to give an opinion on facts, upon which all men are equally competent to 
 judge. People v. Bpdine, 1 Denio, 311 ; 4 Parker C. R. 019 ; Ramadge Vi Ryan, 9 Bing. 
 333 ; 19 Wendi 576. So as to the opinion of other scientific- witnesses ; it is no more con- 
 trolling than thajt of any other bpdy pf men speaking upon subjects which lie within the 
 range of common obaerva,tion and experience. Boehm v. The Great Western R. Co. 34 
 Barb. 273. 
 
 The. grounds upon which opinions involving scientific knowledge, ara received, are 
 clearly stated by Johnson, J., in Clark v. Baird, 5 Seld. 194, 195. " In the case of death, 
 thp physician, from an examination of the body, or from the appearance of its parts, as 
 provei by witnesses, speaks as tp.the cause of death, as that it was produced, by poison, 
 or by disease. In such a case, the substance of his testimony is, that those appearances, 
 spen by himself in the body, or proved to exist there, eitlier generally or universally^ 
 have been observed to accompany death produced by such poison or disease. It is the 
 general or universal fact which science supplies to him, and which through him is made 
 available to the jury." 3 Bopw. 13, 
 
 A physician may be asked his opinipn as to the cause of death, the effect of a wound, 
 or its direction and; extent, and the obstacle an instrument might meet with in its pro- 
 gress. People V. Rector, 19 Wend, 576 ; Anthony v. Smith, 4 Bosw. 508 ; but whether 
 given by a blunt instrument or not, is not a matter calling for scientific opinion. Wilson 
 V. The Peqple, 4 Parker Cr. 619. Nor is the mechanical effect of a blow. 5 C. H. 35. See 
 fiaf:tlier on this, point, note 847, vol. 8. 
 
 in an action on a policy of insurance, the defendant cannot call for the opinion of the 
 examining physician as to what he regards as a healthy life and a good risk ; for it is not 
 admissible to show, in such an action, in what manner others would probably be influ- 
 enced upon a supposed state of facts. Rawles v. Amer. M. Life Ins. Co., 37 N. T. 282. 
 
 A witness who testifies that he is somewhat familiar with, railroad brakes and their 
 operations, and has used them on a railroad, may be asked, " within what distance a 
 freight train can be stopped on an ascending grade, running at the rate of fifteen miles 
 an hour, or at such a rate that a man could run faster than the train was going?" Mott 
 
SEC. V. j Of Acimisaiom on the Beeord, QQZ 
 
 SECTION V. 
 Of Admissions on the Seoord. 
 
 The rule which is now the subject of discussion (namelyj that evidence is 
 tobe confined to the points in issue), will be further illustrated liy consid- 
 ering the effect of admissions made upon the record. 1, With fegard to 
 judgments by default and judgments upon demurer ; 2. With fegard to 
 payment of money into court j 3. With regard to pleading oTer; and, 4, 
 As to particiitlars of demand annexed to the record. 
 
 1. Of the effect of judgment by default, or upon demurer. 
 
 A judgment by default is an admission of the cause of action. Thus, iw. 
 an action on a bill of exchange against the defendant as acceptor, it admits 
 that he accepted it, and that the bill is as stated in the declaration ; and he 
 cannot afterwards show, on the execution of a writ of inquiry, that he had 
 not accepted it, (I) nor can he object to the sufficiency of the stamp on 
 which the bill is drawn: (2) the only use in producing, the bill is, for the 
 purpose of seeing whether there is any indorsement upon it of mortey hav- 
 mg been paid. (3) And it seems that, since the promulgation of the new 
 
 V. The Hudson Biver E. B. Co. 8 Bbaw. 343. So, a witness, who testifies that he is some- 
 what familiar with book-keepmg and accountiag, and that he understands bouk-keeping 
 tolerably well, and that be had knowl«dgB of what th« plaintiff had done ia that' Capa^ 
 city, may expresff his opinion as to th« value of plaiiitiff's. services ; bilt ft Witness stiind- 
 ing by and hearing the testimony camiot grive his opinion thereon of their value. Scott 
 V. LiUeuthal, 9 Bosw. 234. So, an expert may be asked how a giveh aTticle of merchan- 
 dise is known in the market, how generally spoken of ? or if any such article is known at 
 all ia the markets Pollen v. Le Roy, 10 Bosw. 38. So an expert may be asked his opin- 
 ion as to the mooring of a vessel, the safety and security of the hawsers and fastenings 
 used. Moore v. Westervelt, 9 Bosw. .558, 561, 565. It is not error to allow a physician, 
 called to describe an inj ury to plaintiff's arm, to' exhibit the arm to the jury. Mulhade v' 
 Brooklyn City B. B. 30 N, Y. 370. 
 
 An. exception was taken to the admission of the- opinion of a witness! as to tlie cause of 
 the black rot in hides, in the process of tanning upon the ground that he was not an 
 expert. And the court held him prima facie qualified' o^n iSiis evidence, that he had been 
 engaged in the tanning business over four yearSi and had done all kinds- of Work in the 
 process of tanning. Bearss v. Copley, 10 N.^Y. 93. Long experience in detecting counter- 
 feit bank bills has been held to qualify a witness to express an opinion in respect to notes 
 based on the character of the engraving, though not acquainted with the signatures 
 attached. Jones v. Finch, 37 Miss., (8 Q-eo.) 461. What constitutes a "full cargo " for a 
 given ship may be shown by the opinion of experts. Ogden v. Parsons; 33 How. -XT. S. 
 167. But an expert will not be allowed from a: mere inapeetidn of the paper to give' his- 
 opinion as to the time when a guaranty indorsed on the back of a note was written, it- 
 being written across a fold in the paper. Socket V. Spencer, 39 Barb. 180. But an expert- 
 may describe the instrument minutely, and where one word has been erased and another 
 -written over it, he may express hiff opinion as to the word erased; and where- certain" 
 lines in the body of the note overlap and press upon certain lines in the siguatui'e, one' 
 being written in blue and the other in black ink, the witness examining the paper thrtfughi 
 a; njderoBcope may give his opinion as to which' was- first written. 40 &rb. 536; Dubois v 
 Baker, 30 N. ¥. 355. Seepon* p. 613 vol. 3. _ 
 
 Long experience in the manufactur& of a; given' article is pHma ./to<!*e'evidence of skill 
 and. superior knowledge, of qualifications to speak as an expert ; Blodgett & Co. v. E^BMey . 
 41 N. H. 498 ; mere opportunity for observation, is- not st^cient ; there must be stctual 
 skill : Page v. Parker, 40 Id. 47. An engineer acquainted -with the business and having 
 five years experience in running railroad locomotives and trains; is competent tcs an expert 
 to give an opinion as tothe management of a train and: as to the possibilil^r of stopplag it 
 wlihin a given distance so as to avoid running it upon horses coming upon the track ■ 
 Bellefontaine, &c., B. B. Co. v. Bailey, 11 Ohio N. S. 333. 
 
 A surveyor is competent, as an expert to prove that certain marks on a free are comer 
 or line marks, but is not competent to show that it was the cornet of a particular grant or' 
 to show title- location' of the lot in controversy ; Clegg v. Fields, 7 Jones' lAW, (N CO'ST ■ 
 Schultz V. Lindell, 30 Mis. (9 Jones,) 310. ' 
 
 (1) Green v. Heme, 3 T. B. 301 ; Bevis v. Lindsell, 3 Str. 1149; 
 
 (3) See Lame v. MuUins, 3 Q. B. 354. 
 
 (3) 3 T. E. 303 ; Billers v. Bowles; Barnes, 333; Ellis v. Wall, Id. 234; Mills v. Lyae 
 BayL Bills, 385 ; Marshall v. Griffin, B. &. M. 41, See also Aaon^ 3 Wiltt 156 ; Snowden 
 V. Thomas, 2 W. Bl. 748. 
 
664 Of Judffments by Default, or upon D&nvurrer. [ch. x, 
 
 rules, according to which payment must now be pleaded,(l) where payment 
 has not been pleaded, the production of the instrument is no longer neces- 
 sary. (2) In an action for goods sold and delivered, or for money had and 
 received, the defendant, by suffering judgment to go by default, admits 
 that something is due ; and he cannot afterwards dispute the contract of 
 sale, or show fraud on the part of the plaintiff in making the contract; (3) 
 
 but the plaintiff will only have to prove the amount due to him. 
 *786 *0n the execution of a writ of inquiry after judgment on demurrer, 
 
 the defendant cannot controvert anything but the amount of the 
 sum in demand; for by demurring in law, the defendant admits the facts 
 stated in the declaration. Thus in an action for goods sold and delivered, 
 to which the defendant pleaded coverture, and the plaintiff replied that the 
 defendant's husband had resided abroad, and that the defendant, during all 
 the time, &c., had carried on trade as a feme soZe,(4) the court were of 
 ^ — — jij ^^^^^^^^-^^^^-^— — 
 
 (1) E. Hil., 4 Wm. IV, Pleadings in Particular Actions, I. 3 ; 5 B. & Ad. viii. 
 
 (2) By Lord Denjaan, C. J., in Lane v. Mulling, ut supra. 
 (8) East India Company v. Glover, 1 Str. 612. 
 
 Note 211. — Judgment by default against an executor or administrator involves an 
 admissian of assets as to the particular suit. Euggles v. Sherman, 14 John. Rep. 446. In 
 trespass, quare dausum fregit, it admits the description of the loeus in quo. Frean v. 
 Cruikshanks, 3 M'Cord, 84, In an action on a jailor's bond, alleging that a prisoner was 
 in his custody, and charging a voluntary escape, the default admits the custody. Bernard 
 V. The Commonwealth, 4 Litt. 148, 151. In covenant, it admits all the plaintiff's aver- 
 ments. Courcier v. Graham, 1 Hamm. Rep. 347. In debt on bond averring the perform- 
 ance of a condition precedent (notice to a surety), and non-payment, both are admitted ; 
 semble, otherwise as to the breaches, if they be suggested after judgment by default. 
 Barwise v. Russell, 3 Carr. & Payne, 608. And see Hodgkinson v. Marsden, 2 Campb. 131. 
 But semble, that on a writ of inquiry of damages for delay of execution, and to assess the 
 amount of mesne profits, on affirmance of a judgment in ejectment, which writ is given 
 by 1 R. L. 143, § 3, and 1 R. S. 598, § 39, the defendant is concluded the same as on a 
 default in an action for a tort. Jackson ex dem. Eden v. Rathbone, 3 Cowen's Rep. 296. 
 
 In all such, and the like cases, the jury, on writ of inquiry, are bound to give some 
 damages, at least nominal. Jackson ex dem. Eden v. Rathbone, supra ; Reigne v. Dew- 
 ees, 2 Bay, 405 ; Parsons v. Cain, 1 Rep. Const. Court, 196 ; Rudesil v. Lesesene, 2 Rep. 
 Const. Court, 58 ; Bates v. Loomis, 5 Wend. 134. 
 
 But the judgment concludes none other than the defaulted defendants. It will not 
 conclude the defendant's surety for the debt in question. Foxcroft v. Nevens 4 Qreenl. 73. 
 
 Nor does a default admit any other than material, substantial, traversable averments. 
 It does not admit the day, nor aUa enormia in assault and battery (Bates v. Loomis, 5 
 Wend. 134) ; nor any matter material, if it be left in blank, as where the time happens 
 to be so (Varnon v. Moore, 1 Monroe, 213, 214) ; nor the amount of the debt even semble, 
 in an action of debt on simple contract (Brill v. Neele, 1 Chit. Rep. 619 ; and note 6 at 
 page 630 ; per Mills, J., in Waggener v. Bells, 4 Monroe, 11) ; and this is clearly so in all 
 actions sounding in damages. Per Mills, J., in Waggener v. Bells, ut supra. 
 
 (The Code of N. Y. provides in express terms that every material all^ation of the 
 complaint not controverted by the answer, and every material allegation of new matter 
 in the answer constituting a counterclaim not controverted by the reply, shall for the pur- 
 poses of the action be taken as true. S 168. If an allegation cannot be stricken out as 
 surplusage, it is. to be deemed material. Mayor, &c., v. Cunliff, 2 Comst. 165. It is not 
 ■deemed material unless it be one which the plaintiff is bound to prove to maintain his 
 action. 5 Sand. 54 ; 4 id. 668. An omission to answer admits the facts which are well 
 pleaded in the complaint. 6 How. Pr. 475 ; 4 How. Pr. 24 ; 4 Seld. 483. So in respect to 
 facts well pleaded in the answer. Bridge v. Payson, 5 Sand. 210. Whether there be a 
 default or an issue joined, the material allegations of the complaint, not denied, are 
 admitted, are to be taken as true. 
 
 Under the New York Code, where a demurrer is frivolous, the party prejudiced may 
 apply to a judge in or out of court, by motion, for judgment on that ground. S 247; 
 Roberts v. Clark, 10 How. Pr. 415 ; 12 Id. 899 ; 14 Barb. 393. 
 
 (4) De Gaillon v. L'Aigle, 1 B. & P. 868. See also Lane v. Mullins, ut supra; Stephen 
 V. Pell, 2 Dowl. P. C. 629. 
 
 As to the effect of admissions in equity pleading, see post, Vol. II, Chap. 1, Sect. 2, Of 
 the AdmissibiMty and Effect of Proceedings in Chancery. 
 
 Note 212. — But a judgment in favor of the plaintiff on a bond assigning several dis- 
 tinct breaches, on a general demurrer to the whole declaration upon the bond, does not 
 conclude as to thpse breaches the assignment of which is substantially defective ; for the 
 correct assignment of a single breach is eufficlent to defeat the demurrer. Thus, where 
 
SBC. v.] Sfect of Fayment into Cowrt. 665 
 
 opinion, that after judgment on demurrer to this replication, evidence of the 
 wife having acted as agent to the hushand ought not to have been admitted 
 on the execution of the writ of inquiry ; that the only question to be 
 decided by the jury, was the amount of the debt, and that the question, 
 whether the debt had been contracted by the defendant as agent for 
 *788 her husband, *or in her separate capacity, ought to have been con- 
 sidered as determined by the record. 
 
 2. Of the effect of payment of money into court. 
 
 Payment into court, — which must now be pleaded in all cases ; either as 
 a matter of course, in actions for the non-payment of money,(l) or by leave 
 of the court or a judge, in most actions for consequential damages, such as 
 assault, libel, criminal conversation, debauching the plaintiff's daughter, and 
 the like,(2)^may be pleaded either to the whole or a part of the plaintiff's 
 claim. (3) 
 
 The effect of payment into court, as an admission, must be considered with 
 reference to the state of the pleadings and the subject matter of the admis- 
 sion. (4) 
 
 Where money is paid Luto court upon the general indebitatus counts, the 
 payment only amounts to an admission that the defendant is liable in respect 
 of some contract to the extent of the sum so paid in. (5) But where the 
 plaintiff declares upon a special contract, the plea of payment into court 
 operates as a confession of the contract as set forth in the declaration; (6) 
 because the payment admits that something is due, and, therefore, must 
 admit that the contract was made, by which alone anything is due. (7) Thus, 
 a general plea of payment into court, in an action of covenant, is an admission 
 of some damage on every part of the breach of covenant in the declaration. (8) 
 
 In the former case, that is, where money is paid in upon the general indebi- 
 tatus counts, it is incumbent on the plaintiff to show, not only that a larger sum 
 is due, but that a contract exists in respect of which the defendant is liable be- 
 yond the amount so paid into court ;(9) and when the action is brought 
 *789 against more than one defendant, the plaintiff must *moreover show a 
 joint liability upon some contract beyond the amount paid in. (10) 
 
 the bond was to perform the duty of an office generally, upon which a sjaecific breach of 
 duty must be assigned, and not a general violation ; but both general and specific breaches 
 were assigned, the defendant demurred ; and the court overruled the demurrer ; but said 
 the plaintiff should assess damages on the specific assignment of breaches only. People 
 V. Brush, 6 Wend. 454, 458. Yet a judgment against a party on demurrer, concludes 
 him as to all matters of substance, which are substantially well pleaded, all the facts in 
 the pleading demurred to, as effectually as if they had been found against him by verdict. 
 Carlyle v. Long, 5 Litt. Rep. 167, 168. 
 
 (1) R. Hil., 4 Wm. IV, r. 18 ; 5 B. & Ad. vi 
 
 (3) 3 & 4 Wm. IV, c. 43, §;21 ; see note, 314. 
 
 (3) R. Trin., I'Vict. 8 A. &B1. 278. 'Under various statutes the plea of payment of money 
 into court is authorized in an action for auy a)ct done under the authority of the statute. 
 
 (4) Before Lord Mansfield's time, payment of money into court was not an admission of 
 anything ; by Sir James Mansfield, C. J., in Rucker v. Palsgrave, 1 Camp. 558. As to the 
 commencement of the practice, see 2 H. Bl. 376 ; 1 Lord Raym. 354. 
 
 (5) By Tindal, C. J., in Archer v. English, 1 M. & G. 873, 876. See also Burrough v. 
 Skinner, S Burr. 3640 ; Hulton v. Bolton, 1 H. Bl. 399, n. ; Seaton v. Benedict, 5 Bing. 28 ; 
 Stevenson v. Berwick (Corp.), 1 Q. B. 154 ; Stapletou v. Nowell, 6 M. & W. 9 ; Kingham' 
 V. Robins, 5 Id. 94 ; Elgar v. Watson, C. & Marsh. 494 ; Churchill v. Day, 8 M. & R. 71 ■ 
 Bmmett v. Norton, 8 C. & P. 508 ; Booth v. Howard, 2 Dowl. P. C. 438. 
 
 (6) By Parke, B., in Kingham v. Robins, 5 M. & W. 99. And see Archer v. English, 
 and the other cases cited in the last note. See also Tate v. Willan, 3 East, 13?. 
 
 (7) By Alderson, B., in Stapleton v. Nowell, 6 M. & W. 11, on the authority of Bayley, 
 J And see by Tindal, C. J., in Thompson v. Jackson, 1 M. A G. 244. 
 
 (8) Wright V. Goddard, 8 A. & E. 144. 
 
 (9) By Tindal, C. J., in Archer v. English, 1 M. & G. 873, 876. And see by Parke, B., in 
 Kingham v. Robins, 5 M. & W. 101, correcting what was said by himself and Littledale 
 J., in Morgan v. Smith, 4 B. & Ad. 673. ' 
 
 (10) Archer v. English, ut supra; Ravenscroft v. Wise, 1 C, M. &_R., 303, and Walker 
 V RawBon, 1 Moo. & R. 259, are overruled by these later decisions. 
 
 ' Vol. I. 84 
 
666 €^ Admissions on the Record, [ch. x. 
 
 JE^eet of, as admission qf'eontraet. Wkere money is paid in upon a 
 decliaration ia this general foim, it amounts to an admission of the existence 
 of a contraet as to any transaction -which i» capable of being converted into 
 a contract, by the assent ©f the. parties. Thus, where the defendant had pos- 
 sessed himself of goods belonging ta the plaintiff, and had sold part and 
 kept the residue in specie, and paid money into court generally, upon a 
 declaration containing a count for goods sold and delirered and ' the usual 
 money counts, it was held that be thereby admitted the transaction to have 
 been eonverted into a contract, and that the plaintiff was entitled to recover 
 the value of the goods under the count for goodsi SGld.(l). 
 
 Where there is a coumt on a special contract together with the general 
 indebitatus counts, payment of money generaily upon thie whole declaration 
 is an admission of tne defendant's liability upon the special contract. Thus, 
 where the declaration stated a specific bargain to pay a particular sum of 
 money for a certain consideration, a general payment of part of the money 
 into court, by admitting the bargain, admitted also the sura which was 
 originally due ; and the only question that could be raised after that ad- 
 mission would be, whether the. remainder of the money had been prBvi»nsly 
 paid. (2:) If the couitract had been to pay, not any particular price, but the 
 average price at which such, articles were soM, to be ascertained by a cer- 
 tain time, a gemeral payment of money into court wiauld not have admitted 
 the amount of the breach as stated in the declaration, though it would 
 admit a cause of action on each count, and something due; on each of the 
 breaches! the contract is admitted, but not the averment of the average 
 price. ^3). And the same principle applies where the sum contracted to be 
 paid is laid under a videlicit, as according to the rules of pleading such an 
 averment is not materiaL Thus, where the plaintiff declared upon a con- 
 tract that the defendants would employ him as the editor of a newspaper 
 at a certain salary, to wit, at the rate of £400 per annum, and the common, 
 eoumts were added to the declaration, and the defendant paid money into 
 eourt generally, it was held, that though the payment into court admitted 
 the contract to engage the plaintiff as editor, it did not amount to an ad- 
 mission of the rate of salary as alleged. (4) 
 *78'9 *Where the defendant has paid money into court generally, upon a 
 declaration containing a count on a policy of insurance together with 
 money counts, he will not afterwards be permitted to show that the policy 
 was originally different from that set out in special count, but altered by 
 the broker without his knowledge. (5) But m such a case, where the special 
 
 (1) Bennett v. Francis, 2 B. & P. 550. 
 
 (3) Cox V. Brain, 3 Taunt. 95. In this case tlie money had been paid into court, upon 
 a ^lea.ot tender, but the principle is the same as that which governs the plea of payment 
 Hlto court. 
 
 (3^ Stoveld V. Brewin, 2 B. & A. 118. 
 
 ^4) Cooper V. Blick, 3 Q. B. 915. See Banbury Union (Guardians) v. Bobinson, 4 Q, B. 919. 
 
 (5) Andiews v. Palsgrave, 9 East, 835. 
 
 I^OTB 314. — Johnston v. The Columbian Insurance Company, 7 John. Rep. 315. Wheua 
 the defendant pays the premium into court, and the plaintiff takes it out, under an agree- 
 ment that this shall be without prejudice, he may still claim on the trial as for a total 
 loss. Sleight v. Rhinelander, 1 John. Bep. 193, 198, 194, and 302. 
 
 (Under the Code of New- York, the defendant may, at any time before the trial or ver- 
 dict, serve upon the plaintiff an offer in writing to allow judgment to be taken against 
 him for the sum or property, or to the effect therein specified, with costs. If the plain- 
 tiff accept the offer, and give notice thereof in writing, within ten days, he may file the' 
 summons, complaint and offer, with an aifidavit of notice of acceptance ; and the clerk 
 must thereupon enter j udgment accordingly. If the notice of acceptance be not given , the 
 offer is to be deemed withdrawn, and cannot be given in evidence; andif the plaintiff Jail to 
 obtain a more favorable judgment, he cannot recover costs, but must pay the defendant's 
 costs from the time of the offer. 8 885. As to mode of making the offer, see 13 How. 
 Pr. B. 552.) 15 How. Pr. 37; laid. 59. 
 
SEC, v.] Sy Payment int& Cotirt. 66T 
 
 count states a total loss by capture, the payment into court admits the con- 
 tract an<J the capture, but only a partial loss to the amount paid in.(l) 
 
 Where the dedaratioo; contains a special count and also the common 
 counts, money paid in upon the latter only mH not admit either the con- 
 tract stated in the. special count, or any allegation contained therein. Thus, 
 vhere to a special count charging- the defendants as partners upon a con- 
 tract the money counts were added, and the defendant paid money under 
 the latter, it was held, that this was no admission of the partnership alleged 
 in the first count. (2) 
 
 (1) Bucher v... Palsgrave^ 1 Camp. 5>7;, S. a, 1 Taunt. 419. See Evetth, v. Bell, 7 
 Taunt. 450. 
 
 (2) Charles v. Rranker, 18 M. & W". 7^. 
 
 Note 313. -r-Buchei v. Palsg^ve, 1 Taunt. 419. Pajmient of money into court upon a 
 general indebitatus assumpsit, is no admission of a contract beyond the amount of tia 
 sum paid in. Thus, where it was for goods sold to the defendant's wife, the plaintiff's 
 particular amounted to £28 5s. Sd.iet various articles. The sum of ilOiwas paid iatoi 
 court. On the tri4l,.it appeared that the vdfe had obtained, all thft goods under such circum- 
 stances that the defendant was not liable at all ; but the jud^ at. the trial considered the 
 payment of money as the admission of a g«neraJ liability, and directed a Terdi(^ for the 
 vhole amount. Held, on motion for a new laSal, that theyeidiot should have been restricted; 
 to. thje £10. It would be. otherwise in respect to a special contract. Seaton v. Benedict; 
 5. .Bing. 28 ; S. C., 3, Mq., & Payne, 66. The- smn paidj in is to.be deemed stricken out 
 of the declaration ; and unless, a larger sum is proved, by the plaintiff at the trial, the ver- 
 dict shoujd be &r the defendant. Columbia Banjt v.. Sontheriamd, 3 Cowea's Bep. 336 ;■ 
 Bayden v. Moore, 5 Mass. Eep. 365. It was said that the plea of a tender, and paying) 
 nioney intO; court, on a declaration upon a cpuMLttummermi, did not preclnde the defendant 
 from showing a special contract in respect to the wori; declared for, so as to reduce the. 
 damages to the sum paid in, Downey v. Young, 1 Dev. 482, 433. And in, an action on a 
 propijflsory note, it. was bsld that the defendant might pay into court the balance due 
 
 deducting a. certain amount for a partial failure of consideration ; and that at the 
 *790 trial, if the. proposed deduction were aIlowed,,so *that a balance due to the plaintiff 
 
 should not appear to be more than the sum paid in, the defendant should have a 
 verdict. Shjel v. Bandolph, 4 Nt'Coidj 146. 
 
 In an auction by the. payee against the acceptor of' a bill drawn by a third person, with 
 the general counts, including, an account stated,, thS' defendant paid into court £10' on the 
 general counfla. So more than £10 was due on the bill, and' there was no other debt 
 appeajring beWiveen the parties. Held, that the £10 should be applied to the- bill ; for, 
 said Lord Tenterden, Chief Justice, the plaintiff alleges a reckoning, the defendant admits 
 that by the payment, and we may intend they reckoned on the bill. Early v. Bowman, 1 
 5arnw. &. Adolpli, 889. And the following caee>, it will be perceived, may- be sustained on 
 tiie same ground. The, plaintiffs declaired in coiints for work, done, and on an account 
 stated. Th^. defendant paid into court £420 2s; Xd. expressly upon the latter count, upon 
 afi account atated. On the trial, the plainti£fe gaive no evidence of an acicount stated, but 
 only of work, anii labor to about £115. Held, that notwithstanding the form of the pay- 
 ment, yet the defendant might apply it to the oniy debt proved on the trial. And the 
 plaintiff was nonsuited, which nonsuit was: unstained on the motion for a new trial. 
 Churchill V. Day, 3 Mann. & Eyl. 71. The learned reporters, make the following com- 
 mentary on this case : " The payment of money into court admits every fact the proof of 
 which would have been necessary to entitle the plaintiff to a verdict for the sum paid in ; 
 and, therefore, even upon this record, the defendant must be taken to have admitted an 
 accounting which left. him. liable to the, payment of £430 2», Id. Bnt the payment must 
 not, be considered as the admission of a.JK account, in 'Vfhich, that paarticular balance was 
 found; for if the plaintiff were to proves an account actually stated, or an acknowledg- 
 ment, which is tantamount, to an account, stated, for a laj^er sum, it would, be competent 
 tp the defendant to reduce that large demand so. as to meet the sum paid into court, by 
 evidence of payment, satisfaction or releaee, &c., of the difference. Where money is paid 
 into court upon a.count.on a special, contrast, or generally, upon a. declaration containing 
 a count upon a special, contract, the ^neaple is the same, though, the effect is rather 
 different If. I declare upon, a bjU of exchange for £100, and the defendant brings into 
 court only £60, he not only admits his liability to pay £60 on account of that biU, but he 
 also admits that he:is primcu fade liabl^ to pay theotheiv £40 ; beoanse, under the general 
 issue alone, I could not have obtained a verdict for the £60 -without giving evidence which 
 would have shown me entitled, prima fade, to the whole £100., But it is competent to 
 the defendant to rebut this prima fade liability by any evidence which does not go 
 to show that at the time of the payment of th&money intOi court, he did- not owe £60, or 
 at least some sum of money, upon the Wl. Thus he may show that, to the extent of £40, 
 or to any extent less than the whole amount of the bUl, I held it as a trustee,, or that the 
 
668 * Of Admissions on the Record^ [ch. x. 
 
 *791 *In an action to recover the amount of the sale of goods, ■which have 
 been sold by sample at a particular price, the defendant -will not be 
 allowed to show, after payment into court upon the whole declaration, that 
 the goods were of a quality inferior to the sample.^l) But under a com- 
 mon count for goods sold, payment into court will not preclude the 
 defendant from showing that the goods were not made according to order, 
 but that he had, at the request of the plaintiff, retained some of them upon 
 trial. (2) 
 
 A declaration in trover being general, payment into court ■ in that action 
 admits no liability beyond the amount paid in ; it is incumbent, therefore, 
 on the plaintiff to show what articles the defendant has converted. (3) 
 
 In an action of assumpsit for goods sold and delivered, and on the money 
 counts, in which the defendant paid money into court generally and pleaded 
 
 consideration was partially void ; or lie may protect himself by matter ex post facto, as 
 payment, satisfaction, release, &c. And see Godsall v. Boldero, 9 East, 72, 79 ; Bell v. 
 Ansley, 16 East, 146 ; Blackburn v. Scholes, 2 Camp. 341." 
 
 In Massachusetts, the effect of a general payment of money into court is much more 
 rigorous than in England, where, as we have seen by the text, and by the above case of 
 Seaton v. Benedict, this act of payment does not preclude the defendant from objecting 
 to the whole of the plaintiff's cause of action beyond the amount paid in. In Massachu- 
 setts, the payment seems to entitle the plaintiff not only to recover for a demand which 
 otherwise could not have come in under his declaration, but for the whole amount of such 
 demand. Thus, in assumpsit, the declaration contained one count on a note, one for 
 goods sold and delivered, and one for money had and received. Money was paid into 
 court, " on account and satisfaction of the plaintiff's damages in the suit." The count for 
 the goods sold was sought to be supported by proof that the defendant had trespassed by 
 cutting and carrying away the plaintiff's timber. It was made a question whether the 
 action thus lay for a tort. The court held that, to be sure, the action would not lie in this 
 form ; but the defendant was concluded by the form of his payment into court from raising 
 the question. He had admitted the contract set forth in all the counts. If he had 
 intended not to do so, he should have paid in on a pal'icular count. But the court finally 
 relieved him from the inadvertence by amending the rule. Jones v. Hoar, 5 Pick. 285. 
 The English courts would have applied the money to meet the demands appearing to be 
 legally due, which were, in this case, the note and nominal damages under the other 
 counts ; and if, in this view, no more should appear to be due than the sum paid in, the 
 verdict would have been for the defendant. So where, to a declaration containing one 
 count on an account stated, and another on a quantum meruit for services, the defendants 
 pleaded a tender of $300, and paid that sum into court ; and as to residue, pleaded non 
 assumpserunt ; at the trial they would have shown that the plaintiff was bound by an award 
 of $300 to him for his services in question. This being overruled, and a verdict on the 
 quantum meruit being for $400 ; on motion for a new trial, it was held that the defendant 
 was precluded by the plea and payment, and that the plaintiff might recover the real 
 value of his services, notwithstanding that, had the payment been special, he would have 
 been tied down by the award. Huntington v. The American Bank, 6 Pick. 340. 
 
 It was held at Nisi Prius, that, after a payment of money into court on a single count 
 for work and labor, yet the defendant might show infancy — a defense to the whole action — 
 and thus cut the demand down to the amount paid in. Cor. Buller, J., Hitchcock v. 
 Tyson, 2 Esp. Rep. 481, note. 
 
 Taking out a summons to be permitted to pay a certain sum — e. g. £42 15i. — ^into court, 
 would seem to be a conclusive adnjission that so much is due ; and to supersede the neces- 
 sity of proof to that extent ; though no judge's order be made upon the summons, and no 
 money be paid into court. Williamson v. Henley, 6 Bing. 299. 
 
 (Where the defendant pleads a tender before suit, and pays the money into, and the 
 plaintiff does not accept the amount so paid into court, but goes on for the purpose of 
 recoverng a larger sum, he is liable for costs if he does not succeed ; but the money so 
 paid into court belongs to the plaintiff and may be taken by him ; Logue v. Qillet, 1 E. 
 b. Smith, 398 ; 8 Cow. 336 ; whether he recovers more or less ; 13 Wend. 390 ; 7 Hill, 80 ; 
 3 Sand. 54. A tender of money before it is due, is of no avail. Mitchell v. Cook, 29 
 Barb. 243. Where the sureties on appeal make a tender of the costs incurred, the money 
 must be brought into court and left in the power of the party entitled to it. Halsey v.* 
 Flint, 15 Abbott's Pr. 367.) 
 
 (1) Leggett V. Cooper, 2 Stark. E. 103. 
 
 (2) Mainworthy v. Page, 3 Jur. 126, Exch. 
 
 (3) Cook v. Hartle, 8 C. & P. 568. 
 
SBC. v.] By Payment into C<yurt. 669 
 
 the general issue, with a plea of the Statute of Limitations, payment into 
 court was held, not to take the case out of the statute. (1) 
 
 In an action on a bill of exchange, the defendant, by paying money into 
 court generally, dispenses with the regular proof of the party's hand- 
 writing, (2) and cannot object to the sufficiency of the stamp on which the 
 bill is drawn. (3) So, in an action of covenant, he admits the execution of 
 the deed. (4) On the same principle, pa,yment of money into court admits 
 that the contract was in writing, if required to be so by the Statute of 
 Frauds ;(5) it also admits the plaintiff's right to sue in that court ;(6V 
 *792 *the title on which he sues— as, for instance, his being a surgeonj^Y) 
 or farmer of tithes, &c. (8) It will also amount to a waiver of any 
 objection, either as to the non-performance by the plaintiff of a condition 
 precedent, or as to the action being brought too soon. (9) 
 
 Payment of money into court is an admission only of a legal demand. 
 If the contract declared upon be illegal, the defendant cannot give it valid- 
 ity by his admission ; no admission of the parties will oblige the court to 
 give effect to an illegal transaction. (10) 
 
 Although payment of money into court admits the contract, that is, the 
 entire consideration for the act and the entire act which is to be done for 
 such consideration, yet it will not be an admission of other parts of the 
 contract, which are distinct and collateral, respecting the liquidation of 
 damages after breach of the contract. (11) If indeed the provision is of such 
 & nature as will discharge the defendant from all liability under the con- 
 tract, unless the plaintiff has complied Avith the condition (as was the case 
 in Clay v. 'Willan,(12) where the goods were riot to be acounted for to any ^ 
 amount unless properly entered and paid for), that will operate not merely 
 in reduction of the damages, but in bar ol the action ; and, therefore, in 
 such a case, if the defendant pays money into court on a declaration against 
 a carrier in a common form, he cannot afterwards give in evidence such a 
 provision, which entirely negatives the contract as stated in the declaration. 
 
 In an action on the case for negligence in not properly securing a cow, 
 by means whereof the cow destroyed one belonging to the plaintiff, the 
 defendant paid money into court, pleading that the plaintiff had sustained 
 no greater damage. The plaintiff replied that he- had sustained greater 
 damage. It was ruled that the defendant could not go into evidence to 
 show that his cow had not killed the plaintiff's cow, as the contrary was 
 admitted by the plea. (13) 
 
 (1) Long V. Gtrevllle, 3 B. & C. 10 ; Eeid v. Dickens, 5 B. & 499 ; recognized in 
 
 Shearwood v. Hay, 5 A. & E. 390. And see Lechmere v. Fletcher, 1 C. & M. 628 ; Cox v. 
 Parry, 1 T. R. 464. 
 
 (2) Gutteridge v. Smith, 3 H. Bl. 374. 
 
 (3) Israel v. Benjamin, 3 Camp. 40. 
 
 (4) Randall v. Lynch, 3 Camp. 357 ; Watkins v. Towers, 2 T. R. 375. 
 
 (5) Middleton v. Brewer, Peake N. C. P. 13. 
 
 (6) Miller v. Williams, 5 Esp. 19. 
 
 (7) Lipscombe v. Holmes, 2 Campb. 441. 
 ffl) Broadhurst v. Baldwin, 4 Price, 58. 
 
 - (9) Harrison v. Douglas, 3 A. & E. 396. Payment into court will preclude a defendant 
 from moving in arrest of judgment on account of the insuflBciency of the counts in the 
 declaration upon which the money has been paid in. Wright v. Goddard, 8 A. & E. 144. 
 As to pleas inconsistent with the payment into court, see Thompson v. Jackson, 1 M. & 
 G. 243 ; Speck v. Phillips, 5 M. & W. 379. 
 
 (10) Eibbans v. Crickett, 1 B. & P. 364 ; Cox v. Parry, 1 T. R. 464, explained by Law- 
 rence, J., 3 Bast, 134. 
 
 (11) See Clarke v. Gray, 6 East, 564. 
 (13) 1 H. Bl. 308. 
 
 (13) Lloyd V. Welkey, 9 C. & P. 771. See, further, Parfitt v. Thompson, 13M. & W. 393. 
 
 As to how far a new assignment operates as an admission, see Oakley v. Davis, 16 East 
 86 ; Norman v. Wescombe. 2 M. & W. 349 ; Bolton v. Sherman, Id. 399, by Parke, B. ■ 
 Alston V. Mills, 9 A. & B. 248 ; Dand v. Kingsoote, 6 M. & W. 197 ; Branoher v. Molineux ' 
 1 M. & G. 710 ; Darby v. Smith, 2 Moo. & E. 184. 
 
670 Of AdtnisH'&ni en th6 Beisord, [en, x. 
 
 *793 Even a summons for leave to piij a sum oij money Into c&art, 
 though not acted upon, is some evidence of liability to that amount. (1) 
 
 As the payment of money into coart is an acknowledgment on the record 
 of its being due, the party cannot receive it back, laltibough he has paid it 
 wrongfully or by mistake. (2) 
 
 3. Of the efifect of pleading over. 
 
 The effect of pleading over would seem properly to appertain to the 
 science of spfecial pleading ; but it has a considerable bearing upon the law 
 of evidence ; and it has become of more practical importance since the pro- 
 mulgation, by the judges, of what are known in the profession as the New 
 Rules in Pleading.(3) 
 
 The general rule upon this subject may be thus stated r— ^Every material 
 fact, which is not denied by the opposite party, is taken to be admitted upon 
 the record ;(4) and whatever is so admitted need not be poved, and cannot 
 be disproved. (5) But an admission in one pleading does not operate as all 
 admission with respect to an issue joined upon any other pleadings. (6) 
 
 In the same manner, although a special demurrer admits all the 
 *?94 *material facts that are well pleaded(7) in the pleading demurred 
 to, still the statements made m sUch pleading cannot be referred to 
 by either party Upon the trial. (8) 
 
 Admits Only material factSi Only material &ct8, however, which are 
 
 not denied, are taken to be admitted. (9) Thus, where a decla,ration in 
 
 assumpsit stated that the defendants were the owners of a certain vessel^ 
 
 in which the plaintiff shipped certain goods, to be safely carried by the 
 
 ■ defendants, as owners of the said vessel, and that the defendants promised 
 
 (1) Lawson v. Mangles, 2 Moo. & B. 437. 
 
 (2) Vaughan v. Barnes, 3 B. & P. 393 ; Malcolm v. Fullerton, 2 T. B, 645. 
 
 (3) See 5 B. & Ad. iii ; 10 Blng. 465 ; 2 C. & M. 14. 
 
 (4) Wiinbash v. Tailbois, Plowd. 48 ; Hudson v. Jones, 1 Salk. 90. See, also, King v. 
 NoMan, 4 C. B. 884, 895. 
 
 (5) B. N. P. 298 i Anon., tly. 183 ; Nicholson v. Simpson. 1 Str. 397 ; S. C, Foi%. S5&. 
 See, also, 2 Vent. 170 ; Salk. 91 ; Green v. Heme, 8 T. E. 301 ; Stephen v. Pell, 2 Dowl. 
 P. C. 639 ; Evans v. Ogilvie, 3 Y. & J. 79 ; Jones v. Brown, 1 N. C. 484 ; Bonzi v. Stuart, 
 4 M. & G. 395 ; Carter v. James, 13 M. & W. 145 ; CottUshaw v. Cheslyu, 1 C. & J. 48. 
 Bttt, see, as to this last case, what is said by Lord Denman, C. J., in Ble\*itt v. Tregonntllg, 
 
 3 A. &. B. 679. See, also, Needham f. Frazef, 1 C. B. 815. 
 
 The New Tork Code of Practice provides (§ 168) that every material aJl^fction bf the 
 complaint, not controverted by the answer, and every material allegation otnew matter 
 in the answer, constituting a counter claim, not Controverted by the reply, shall, for the 
 purposes of the action, be taken as true. But the allegation of new matter in the answer, 
 not relating to a counter claim, or of new matter in a reply, is to be deemed controverted 
 by the adverse party as upon a direct denial or avoidance, as the case may require. Under 
 this provision no allegation is deemed material, unless an issue takfen upon it, whether of 
 law or fact, will decide the cause, so far as relates to the particular cnuse of action to 
 which the allegation refers ; a denial of circumstances is improper, And facts pleaded in 
 mitigation of damages in an action for libel cannot be demurred to, Newman v. Otto, 
 
 4 Sand. 668 ; Fry v. Bennett, 5 Id. 54. The issuable facts are such as must be proved to 
 sustain the action or defense, and not such as merely go to establish such facts. Williams 
 V. Hayes, 5. How. Pr. 470. An allegation of facts by way of proving other facts, May be 
 stricken out as surplusage. 3 Comst, 170. And no unanswered allegation is to be deemed 
 material, which is not made in direct and positive terms. Oeehs V. Cook, 3 DUer, 161. 
 The rules of pleading under our Code, and consequently the rules of evidence, are, in 
 many respects, the same as those established under the English rules 6f cotirt. Garvey 
 V. Fowler. 4 Sand. 665, per Duer, J. See, also, the Common Law Procedure Act, of 1854, 
 17 & 18 Vict., c. 125. 
 
 (6) Harrington v. Macmorrls, 5 Taunt. 338 ; Gould v. Olivet, 3 M. & Q. 208 ; Straoy v. 
 Blake 1 M. & W. 168. See by Patteson, J., in Knight v. M'Dowall, 13 A. & E. 443. 
 
 (7^ See by Lord Denman, C. J., in Van Sandau v. Turner, 6 Q, B. 785. 
 
 (8) Firmin v. Crucifix, 5 C. & P. 98 ; Montgomery v. Bichardson, Idj 247 ; Ingram v. 
 Lawson, 9 Id, 229 : S. C, 3 Moo. & E. 353. 
 
 (9) R. V. Chester (Bishop), 3 Balk. 560 ; S. C, 1 Ld. Baym. 392 ) ELing v. Norman, 4 G. 
 B. 884, 895. 
 
SBC. v.] JBy Pleading over. 671 
 
 safely to carry the said goods as aforesaid; alleging as a breach that they 
 ■were damaged through the negligence of the defendants ; and they pleaded 
 non-assumpserunt ; it was held, that their ownership was not admitted in 
 the plea;(l) the allegation of ownership being perfectly immaterial. On 
 the other hand, where a declaration in a case stated that the defendant was 
 possessed of a ship, which, by the carelessness of his servants, damaged the 
 plaintiff's ship, it was held, that the plea of not guilty admitted that the 
 defendant was possessed of the ship, (2) that being a material allegation. 
 
 Allegations which are not traversable are immaterial ; and therefore, such 
 allegations, though not denied, are not to be taken as admitted. (8) 
 
 It is further to be observed that an admission by pleading over operates 
 only to the extent of the facts stated upon the record. Thus, if, in an action 
 of covenant for non-repair, the defendant pleads, firstly, performance, and 
 secondly, a license, he thereby admits only so much of the deed as is 
 expounded upon the record ; and if the plaintiff wishes to avail himseli of 
 
 any other part of the deed, he must prove it in the ordinary way. (4) 
 *795 *So a fact which is material to the issue is not admitted, although 
 
 not expressly denied. Thus, where a defendant pleaded a customary 
 right of common in respect of an ancient messuage, and the plaintiff tra- 
 verses the right, he does not thereby admit the antiquity of the mes- 
 suage. (5) But where a defendant in assumpsit pleaded that he had paid, 
 and that the plaintiff had accepted moneys in full satisfaction, and the 
 plaintiff in his replication alleged that he did not accept the moneys in full 
 satisfaction, it was held that this put tbe payment as well as the accept/- 
 ance in issue; (6) for unless the money were accepted, it could not be a 
 payment, but a tender only. (7) 
 
 Facts Admitted not to be Proved. Not only is a party not called upon to 
 prove material facts that are admitted upon the record, but he will not be 
 permitted to prove them. Thus, in an action of slander, (8) the declaration 
 alleged, that certain property had been feloniously stolen from the plaintiff, 
 who, thereupon, preferred a charge against another party before justices of 
 the peace, and that the defendant had uttered the slanderous words com- 
 plained of, imputing that no felony had been committed. The only plea 
 was not guilty. At the trial, before Patteson, J., it was proposed to call 
 witnesses on the part of the plaintiff to show that the property, mentioned 
 in the declaration, had been in fact stolen from the plamtiff ; but his Lord- 
 ship would not allow it to be done. " The statements," his Lordship said, 
 " which are admitted on the record, that is, all those allegations which are 
 contained in the declaration, and not denied by the plea, must be taken to 
 
 (1) Bennion v. Davison, 3 M. & W. 179. 
 
 Under an allegation by the plaintiff that on, &c., he sold and delivered goods to the 
 defendants, under their firm name of John Cook & Son, denied in general terms by the 
 answer, it is not necessary to prove that the defendants were partners. The substantial 
 issue here is whether there was a sale and delivery to the defendants. It is otherwise 
 where the plaintiff alleges that the defendants were partners, and that he sold goods to 
 the firm. Oechs v. Cook, 3 Duer, 161. 
 
 (2) Dunford v. Trattles, 12 M. & W. 529. See also Taverner v. Little, 5 N. C. 678; 
 Crellin v. Calvert, 14 M. & W. 11. 
 
 (3) Gale v. Lewis, 9 Q. B. 730. 
 
 " An omission to deny material allegations in a complaint admits them to be true for 
 the purpose of the action. Code of N. Y. 8 168. The question occurs, what are material 
 allegations within the meaning of that rule? I think none should be held to be of this 
 character which will not prevent a plaintiff from recovering if proved to be untrue, or 
 which, when denied, he is not obliged to prove to entitle himself to a verdict." 3 Duer, 
 165, per Bosworth, J. 
 
 (4) WilUams v. Sillis, 2 Camp. 519. 
 
 (5) Dunster v. Tresider, 5 T. R. 2. 
 
 (6) Ridley v. Tindall, 7 A. & B. 134. 
 
 (7) Per Tindal, C. J., in Bonzi v. Stewart, 4 M. & G. 329. 
 
 (8) Gwynne v. Sharpe, Car. & M. 532. See also Guy v. Gregory, 9 C. & P. 584. 
 
672 Sy Admissions on Heoord, [ch. x. 
 
 be perfectly true ; and it is not only unnecessary to give evidence of the 
 truth of them, but such evidence cannot be allowed to be given ; because the 
 matters are admitted, and are not put in issue, which they might have been 
 if the defendant had chosen to put the plaintiff to the proof of the state- 
 ments contained in them." 
 
 Facts Admitted cannot be Disproved. Before closing this branch of the 
 subject it may be of use to lay before the reader one or two examples of that . 
 part of the rule which states, that matters admitted upon the record cannot 
 be disproved. 
 
 In an action of assumpsit, the declaration stated, that, in consideration of 
 the plaintiff's having delivered a certain quantity of best Dutch lead to the 
 defendant, the latter promised to deliver prussiate of potash to the same 
 amount to the plaintiff; it then alleged the selling of so much best Dutch 
 lead by the plaintiff, and the refusal by the defendant to deliver the 
 *796 *full quantity of potash. The only plea was non-assumpsit. And it 
 was ruled, that in this state of the pleadings the defendant could 
 not contend, that the lead delivered by the plaintiff was of an inferior 
 quality. (1) 
 
 In an action for not attending, in obedience to a subpoena, the trial of a 
 cause between the plaintiff and A., the declaration alleged that the plaintiff 
 had a good cause of action against A., and that the testimony of the 
 defendant was material for the plaintiff on that trial, and that in consequence 
 of such non-attendance, the plaintiff was compelled to withdraw the record. 
 The defendant pleaded not guilty, and that the plaintiff might have pro- 
 ceeded to trial without his testimony. It was held that the defendant 
 having admitted that the plaintiff had a good cause of action against A., it 
 was not competent to the defendant to avail himself of the record in the 
 former suit (which was put in by the plaintiff for the purpose of showing 
 that it had been withdrawn), in order to show, that the declaration was so 
 defective that a verdict thereon would have been fruitless. (2) 
 
 There still remains a question to be considered, which the operation of 
 the new rules of pleading, by limiting the effect of the general issue, and 
 thereby increasing the number of pleas upon the record, has rendered one 
 of more practical importance than it hitherto had been. 
 
 Sow far admission before jury. The question is, how far an admission 
 of a fact made by a party in the pleadings is to be deemed to be before the 
 jury, so as to warrant them in drawing any inference of fact from that 
 admission. 
 
 The point appears first to have been raised in the case of Edmunds agt. 
 Groves ;(3) when Alderson, B., stated the rule in the following terms : " An 
 admission on the record is merely a waiver of requiring proof of those parts 
 of the record which are not denied, the party being content to rest his 
 claim on the other facts in dispute ; but if any inferences are to be drawn 
 by the jury, they must have the facts, from which such inferences are to be 
 drawn, proved like any other facts." Lord Abinger, C. B., and Bolland, B., 
 the other judges present, gave no opinion upon the subject. 
 
 Alderson, B., afterwards intimated an adherence to his own opinion in 
 the cases of Bennion agt. Davison, (4) Smith agt. Martin, (5) and Carter 
 agt. James. (6) His Lordship's opinion appears to have been founded upon 
 the following reasons : that the pleadings are not before the jury, but 
 
 (1) Vegg V. Stead, 9 C. & P. 646. 
 
 (2) Needham v. Frazer, 1 C. B. 815. 
 (8) 3 M. & W. 642. 
 
 (4) 3 M. & W. 179. 
 
 (5) 9 M. & W. 304. 
 
 (6) 13 M. & W. 187. 
 
SBC. v.] By Pleading over. 673 
 
 *797 only *thei8sue(l) ; that the omission to traverse an allegation in plead- 
 ing amounts to no more than a protestation would have done under 
 the old forms of pleading(2) ; that it would be unjust and unreasonable 
 to prevent a party, by the rules of pleading, from denying a particular fact, 
 and yet to call upon the jury to treat that fact as proved ; for if that were 
 the law, a double replication would be the very essence of justice(3) — and 
 that if an admission on the record were to be taken as an admission for all 
 purposes, it might be used for the purpose of discrediting the witnesses, as 
 e. ff., where it was admitted on the record, by not being denied, that a party 
 called as a witness had committed usury. (4) 
 
 It may be remarked, that this opinion of Alderson, B., though it has not 
 been dissented from by the other judges of the Court of Exchequer, does 
 not appear to have been ever expressly adopted by them. 
 
 On the other hand, the Court of Queen's Bench, after having the cases of 
 Edmunds agt. Groves, Bennion agt. Davison, and Smith agt. Martin before 
 them, have, in the cases of Bingham agt. Stanley, (5) and Robins agt. Maid- 
 stone, (6) laid it down as their deliberate judgment, that an admission made 
 in the course of pleading, whether in express terms or by omitting to tra- 
 verse what has been alleged, must be taken as an admission for all purposes 
 regarding the issue arising from that pleading, whether the facts relate to 
 the parties or to third persons, provided that the allegation so made be 
 material. And, in the former case, Patteson, J., said he could not under- 
 stand the distinction between admissions for the purpose of pleading and 
 admissions for the purpose of trial. (1) 
 
 The Court of Common Pleas have not as yet had occasion to pronounce 
 
 any decision upon the subject; but in the caseof Fearn agt. Filica,(8) where 
 
 'the question was incidentally raised, and the conflicting cases of Edmunds 
 
 agt. GroveSj Bennion agt. Davison, and Bingham agt. Stanley, were brought 
 
 before the notice of the court, Cresswell, J., remarked :(9) "I take it that 
 
 what my Brother Alderson means was, that the fact put in issue was to be 
 
 proved, just as if no admission were made on the record; that is, that an 
 
 admission on the record is not to be taken to prove the issue. If the rule is 
 
 not as stated by my Brother Alderson, this singular state of circum- 
 
 *798 stances might arise, — a counsel might ask a jury, *from the mere 
 
 state o^the record, to infer a fact which was dir.ectly in issue."(10) 
 
 It may, though with great diffidence, be suggested, that ■ the diflference 
 which appears to exist between some of the learned judges upon this point 
 is, perhaps, rather one of terms than of principle ; and that the difficulties 
 will be at least considerably diminished, if the attention is steadily directed, 
 in each case, to the precise point which is put in issue by the pleadings, and 
 the affirmative or negative of which the jury have to determine. For it 
 seems clear, that where any particular fact is affirmed on the one side and 
 denied on the other, no previous admission an the pleadings can be taken 
 as evidence to prove either the existence or non-existence of that fact. 
 
 This position will be best illustrated by an examination of one or two of 
 the cases in which the question now under discussion has arisen. 
 
 (1) 3 M. & W. 643. See also hj Tindal, C. J., in Fearu v. Filica, 7 M. & G. 517. 
 
 (2) 3 M. & W. 181. 
 
 (3) 9 M. & W. 308. 
 
 (4) 13 M. & W. 145. See also Boileau v. Eudlin, 13 Jur. 899, Exch. ; S. C. 2 Exch. 
 B. 665. 
 
 (5) 2 Q. B. 117, 137. 
 
 (6) 4 Q. B. 811, 816. See also Gale v. Lewis, 11 Jur. 730, Q. B. ; S. C, 9 Q. B. 730. 
 
 (7) 2 Q. B. 131. 
 
 (8) 7 M. & G. 513. 
 
 (9) Id., pp. 517, 518. 
 
 (10) As to statements in bills in equity, see Boileau T.Budlin, 13 Jur. 899, Exch. ; S. C, 
 2 Exch. E. 665. 
 
 Vol. L 85 
 
674 Of Admissions on the Mecord. [ch. x. 
 
 In Edmunds agt. Groves,(l) the circumstanees were somewhat singular. 
 It was an action by the indorsee against the mater of a promissory note. 
 The defendant pleaded that the note was illegal in its inception, and that it 
 was indorsed to the plaintiff with notice of such illegality, and without 
 consideration. The plaintiff replied that the note was indorsed to him 
 without notice, and for a valuable consideration. Upon this, issue was 
 joined. At the trial before Lord Abinger, G. B., no evidence was offered on 
 either side; and the question was, which party, with reference to the state 
 of the pleadings, was entitled to the verdict, or, in other words, upon whom 
 the burden of proof lay. His Lordship ruled, in effect, that the burden of 
 proof lay upon the defendant to establish the affirmative of the issue, and 
 as he offered no evidence, the plaintiff was entitled to the verdict. And 
 the Court of Exchequer afterwards upheld this ruling. It was contended, 
 that inasmuch as the plaintiff, by his replication, had admitted the original 
 illegality of the note, he was bound, upon the authority of Heath agt. San- 
 8om,(2) to prove that he gave consideration for it. But Lord Abinger, C. 
 B., said, he thought it was incumbent on the defendant, who had set up as 
 a defense the fact that the note came into the hands of the plaintiff with 
 notice of its original infirmity, to have produced some evidence to prove it ; 
 or, in other words, that the onus probandi was on him. Alderson, B., 
 indeed, after laying down the position above cited, said, " there was nothing 
 to go to the jury in this case from which they could draw the inference of 
 fact that the note was illegal in its inception." But, in truth, the question 
 of the original illegality of the note was quite beside the point in issue, 
 which was, whether or not the plaintiff had received notice that the note 
 was an illegal one when he took it, the affirmative of that issue being. 
 
 alleged by the defendant. 
 *799 *The case of Bingham agt. Stanley(3) was an action by the bearer 
 against the maker of a banker's check, payable to L. or bearer. The 
 defendant pleaded, in effect, that he gave the check to L. for an illegal 
 consideration, and that he delivered it to the plaintiff without a good con- 
 sideration: the plaintiff replied that he gave good consideration for it; 
 whereupon issue was joined. In this case the court decided, independently of 
 the question as to the admission upon the record of the original illegality 
 of the check, that the affirmative of this issue lay upon the plaintiff, and 
 that he was therefore bound to prove that he had given consideration for 
 the note. And although dissenting from the doctrine laid down by Aider- 
 son, B., in Edmunds agt. Groves, they perfectly concurred in the correctness 
 of the decision in that case, upon the ground above stated ; namely, that 
 the defendant had there alleged the affirmative of the plaintiff's knowledge 
 of a certain fact, and was therefore rightly put to prove that allegation. (4) 
 
 4. Of the effect of a particular of demand. 
 
 The courts of common law have a general jurisdiction, independently of 
 any statute, to order particulars of demand, or of set-off, to be given, in 
 order to prevent the necessity of applying to a court of equity, and to 
 enable them to administer justice effectually between the parties. It is now 
 required by a general rule of all the courts, (5) that where the declaration 
 contains counts in indebitatus assumpsit, or debt on simple contract, the 
 
 (1) 2 M. & W. 642. 
 
 (2) 2 B. & Ad. 291. 
 
 As to a ratification of an agent's act, see Clarke v. Acosta, 9 Bosw. 158 ; or where no 
 finding is made on a counterclaim interposed by defendant. Grant v. Morse, 23 N, Y., 
 823 ; ante, p. 520. 
 
 (3) 2 (J. B. 117. 
 
 (4) As to the effect of a plea of abatement by way of admission, see Pasmore v. Boua- 
 field, 1 Starlc. R. 298 ; Welekar v. Le Pollotier, 1 Camp. 479 ; Morris v. Lotan, 1 Moo. & 
 E. 233 ; Crellia v. Calvert, 14 M. & W. 11 ; Hill v. White, 6 N. C. 26. 
 
 (5) B. Trin., 1 Wm. IV, 2 B. & Ad. 788. 
 
SEC. v.] Effect of Particulars of Demand. 675 
 
 plaintiff shall deliver full particulars of his demand under those counts, with 
 the declaration, and that a copy of such particulars, and also of the defend- 
 ant's set-off (if any,) shall be annexed to the record. (1) 
 
 Effect of mu of Particulars. Although the bill of particulars, as it is 
 technically termed, forms, properly speaking, no part of the record, (2) still 
 its contents have much the same operation as the admissions made in 
 pleading, which have just been considered. 
 
 The effect to be given to a bill of particulars has become of more import- 
 ance since the promulgation of the new rules of pleading, which require 
 that payment shall be specially pleaded,(3) and shall in no case be given in 
 
 evidence in reduction of damages or debt. (4) 
 *800 *The judges have also framed a rule,(S) that " if the plaintiff, in 
 order to avoid the expense of a plea of payment, shall have given 
 credit in the particulars of his demand for any sum or sums of money 
 therein admitted to have been paid to the plaintiff, it shall not be necessary 
 for the defendant to plead the payment of such sum or sums of money. 
 But this rule will not apply to cases where the plaintiff, after stating the 
 amount of his demand, states that he seeks to recover a certain balance, 
 without giving credit for any particular sum or sums. "(6) 
 
 Before adverting to the general effect of a bill of particulars, it may be 
 expedient to bring before the notice of the reader, some of the leading 
 decisions which have taken place upon the construction of this rule, which, 
 it will be observed, is limited to matters of payment of money. 
 
 Where a plaintiff gives credit in his particulars for a sum of money, this 
 will be taken as an admission that the sum was paid by the defendant, Cl) 
 
 If the plaintiff gives credit for certain payments, and goes for a balance, 
 and the defendant pleads payment, this plea will be taken with reference to 
 the balance. (8) If his particulars claim a certain amount, and state that 
 he goes for a balance generally, without giving credit for any particular 
 sums, and the defendant does not plead payment or set-off, the plaintiff is 
 entitled to recover, if he proves a claim to any amount; (9) if the defend- 
 ant does plead payment or set-off, it is a question for the jury, under all the 
 circumstances of the case, whether the balance claLmed means a balance 
 after giving credit for the payment or set-off. (10) 
 
 The rule of court does not apply to plea of set-off; where, therefore, the 
 plaintiff, in his particulars, shows claims against the defendant, and admits 
 certain claims (to a less amount), in the nature of a set-off by the defend- 
 ant, it was held that the plaintiff was not concluded by the admission of 
 the set-off.(ll) 
 
 With regard to the general effect of admissions in a bill of particulars, 
 it has been before mentioned, that a bill delivered by an attorney to his 
 
 (I) As to non-compliance with an order for particulars of set-oflf, see Young v. Geiger, 
 18 L. J. (N. S.) C. P. 43. As to the omission of dates when ordered, see Ibbett v. Leaver, 
 16 M. & W. 770. 
 
 (3) See Booth v. Howard, 5 Dowl. P. C. 438. 
 
 (3) K. Hil., 4 Wm. IV, Pleadings in PaHiculwr Actions, 1, 5 B. & Ad. Ariii. 
 
 (4) B. Trin., 1 Vict., 8 A. & E. 280. 
 
 (5) B. Trin., 1 Vict. 8 A. & E. 280. 
 
 (6) The rule upon this last point was previously unsettled. See Ernest v. Brown, 3 N. 
 C. 674 ; Coates v. Stevens, 3 C, M. & R. 118 ; NichoU v. Williams, 2 M. & W. 758 ; Kenyon 
 V Wakes, Id. 764 ; Ferguson v. Mahon, 9 A. & E. 245. 
 
 (7) Smethurst v. Taylor, 13 M. & W. 545. 
 
 (8) By Alderson, B., in Eastwick v. Harman, 6 M. & W. 13, 16. As to the allowance of 
 such a plea under these circumstances, see what is said by Patteson, J., in 1 Q. B. 899. 
 
 (9) Morris v. Jones, 1 Q. B. 397. And see Wilton v. Snook, 12 M. & W. 805 ; Green v. 
 Smithies, 1 Q. B. 796. 
 
 (10) Lamb r. Micklethwaite, 1 Q. B. 400 ; Townson v. Jackson, 13 M. & W. 374. 
 
 (II) Rowland v. Blaksly, 1 Q. B. 403. See also Morris v. Jones, and ToVnson v. Jackson, 
 ut supra. 
 
g76 Of Admissions on the Record, [ch. x. 
 
 client for business done during a certain period, or by a tradesman for 
 goods sold, is strong presumptive evidence against any additional item 
 within the same period. The party is not, however, precluded from show- 
 ing that items, included in a subsequent bill, have been omitted by 
 *801 *mistake in the former bill, and that the business, which is the sub- 
 iect of the charge, has been done by him for the defendant. A bill 
 of particulars, however, is more conclusive ; its sole object is to inform the 
 opposite party of what he ought to come prepared to try ; and it will 
 effectually preclude the party who delivers it from giving evidence of any 
 other demand not there stated. 
 
 Thus, were a declaration contained a count for money had and received 
 for the plaintiff's use, and also a demand for horses sold by the plaintiff to 
 the defendant, and the bill of particulars specified the last demand alone, it 
 was decided that the plaintiff could not give evidence of horses being sold 
 by the defendant as the plaintiff's agent :(l) for a contract for the absolute 
 ,8ale of horses to the defendant is essentially different from a contract to 
 repay money received on a sale of horses by commission ; and the proceeds 
 of such a sale by the defendant could only be recovered under the count for 
 money had and received, which the plaintiff abandoned by confining his 
 bill of particulars to the demand stated in the other count. 
 
 In an action to recover the value of property deposited with the defendant 
 for safe custody, the declaration alleged two breaches : — 1. That he had not 
 taken proper care of the property; 2. That he had not returned part. 
 The particulars took the same distinction, giving two sets of articles, one 
 set as damaged, the other as not returned. In the particulars, some glass 
 was described as not returned, but it appeared by the evidence that the 
 glass so described had been broken. It was held, that damages for the 
 broken glass could not be recovered under the head of the particulars which 
 related to goods not retumed.{i) In this case it was supposed that the 
 defendant would be deceived by the particulars; but where the parties must 
 have understood each other, although the manner in which an item is 
 described may not be quite correct, the court will not be so strict in its 
 construction of the particulars. 
 
 Thus, where, in an action for goods sold, the plaintiff claimed a balance, 
 after allowing credit for a sum paid at different times ; and it appeared at 
 the trial that part of the claim was for the price of an article which had 
 been returned by the defendant, it was held that the plaintiff might show 
 that the price of the article was also a part of the sum allowed as money 
 paid.{?>) 
 
 Where the declaration contains a count on a promissory note, together with 
 money counts, and the particular of demand is confined to the note, 
 *802 *the plaintiff will not be allowedto prove the consideration for which 
 {he note was given, in order to recover under the money counts. (4) 
 Nor can he avail himself of a verbal admission by the defendant acknowledg- 
 ing that he owed the plaintiff a sum of money, which corresponded with 
 that due upon the note, nothing being said at the time about the note. (5) 
 
 So, where the declaration contained counts on three several bills of 
 exchange, but in the particulars the plaintiff claimed in respect of the first 
 of them only, it was held that the plaintiff clearly could not recover on the 
 
 (1) Holland v. Hopkins, 2 B. & P. 243. See also Macarthy v. Smith, 8 Bing. 145 ; Dav- 
 enport V. Davies, 1 M. & W. 570. 
 
 (2) Moss V. Stritli, 1 M. & G. 228. See also Doe d. Winnall v. Broad, 2 M. & G. 523, as 
 to the non-admissibility of evidence of breaches of covenant not included in the particulars 
 of breaches delivered under a judge's order. 
 
 (3) Lamb v. Micklethwaite, 1 Q. B. 400. 
 
 (4) Wade v. Beasley, 4 Esp. 7. 
 
 (5) Roberts v. Ellsworth, 10 M. & W. 653. The court in this case granted a new trial 
 on payment of costs by the plaintiff, with leave to amend his particulars. 
 
SEC. v.] How far Conclttsive. 677 
 
 other two — though they were admissible in evidence on a collateral inquiry, 
 whether two of the defendants had ceased to be partners at the time when 
 the bill was given, in respect of which they were sought to be charged. (1) 
 But where the declaration contained two counts, each on a bill of exchange, 
 and the particulars stated the action to be brought to recover the amount 
 of the bill mentioned in the first count with interest, and that the plaintiff 
 would rely on the whole or any part of the declaration for the recovery 
 thereof, the plaintiff was allowed to recover on the second count. (2) 
 
 Although the plaintiff on perceiving the defect of his first particular of 
 demand, which only mentions a promissory note, delivers a second bill of 
 particulars large enough to comprehend the original debt, yet this will not 
 avail him, unless the second particular has been delivered under a judge's 
 order. (3) 
 
 On the other hand, where the declaration, in addition to the common 
 *803 *counts, contains special counts,- of which no rule of practice, nor 
 previously obtained judge's order, calls upon the plaintifi" for par- 
 ticulars, and the particulars, furnished to the defendant and annexed to the 
 record, relate to the common counts only, the plaintiff will not be precluded 
 from giving evidence in support of the special counts. Thus, before the 
 general rule previously referred to,(4) in an action on a bill of exchange, 
 and for the price of goods sold and delivered, it was held the plaintiff might 
 recover on the bill, though the particulars related to the goods only. (5) 
 
 If the plaintiff, either before or after delivering a bill of particulars, 
 makes a demand of payment only for a part of the articles specified in the 
 bill, such a demand will not have the effect of confining him in his evidence, 
 nor supersede the bill of particulars. (6) 
 
 In an action on a teill or note, if the plaintiff is entitled to recover the 
 principal sum due, he may recover interest also, as arising out of the prin- 
 cipal, and incident to it, though it has not been specifically claimed in the 
 particular of demand, (7) for interest may be given by the jury as damages 
 for the non-payment of the debt. 
 
 In an action of assumpsit, where the defendant pleaded in abatement, 
 that the promises were made by himself and another person jointly, on 
 which plea issue was joined, and it appeared from the bill of particulars, 
 
 (1) Duncan v. Hill, 2 B. & B. 683. And see Breckon v. Smith, 1 A. & E. 488 ; Cooper v. 
 Amos, 2 C. & P. 267. 
 
 (2) Hay v. Fisher, 2 M. & W. 723. And see by Tindal, C. J., in Chisman v. Count, 2M. 
 & G. 310. 
 
 (3) Brown v. Watts, 1 Taunt. 353. 
 
 Note 315. — But a judge's order is not sufficient after issue joined. The amendment 
 can then be made on application to the court only. Fuller v. Koosevelt, 4 Cowen's Kep. 
 144; Graham's Pr. 437. These amendments are allowed on a proper case, at any stage 
 of the cause before the final trial, on terms. Spawn v. Veeder, 4 Cowen's Rep. 503. 
 
 (Under the Code of New York it is not neces.sary for a party to set forth in a pleading 
 the items of an account therein alleged ; but he must deliver to the adverse party within 
 ten days after a demand thereof in writing, a copy of the account, which, if the pleading 
 is verified, must be verified by his own oath, or that of his agent or attorney, if within 
 the personal knowledge of such agent or attorney, to the effect that he believes it to be 
 true, or be precluded from giving evidence thereof And the court, or a judge thereof, 
 or a county judge, may order a " further account," where the one delivered is defective ; 
 and the court may in all esses order a bill of particulars of the claim of either party to 
 be furnished. 
 
 When furnished, the party is confined on the trial to the items stated in the bill. 
 Bowman v. Earle, 3 Duer, 694. Where the demand is single, as where an action is 
 brought for damages in causing death by wrongful act, a bill of particulars will not be 
 ordered. Murphy v, Kipp, 1 Duer, 659.) 
 
 (4) R. Trin., 1 Wm. IV. supra, p. 799. 
 
 (5) Cooper v. Amos, 2 C. & P. 267. See also Day v. Dayjes, 5 Id. 840 ; Fisher v. Wain- 
 wright, 1 M. &. W. 480. * ■ 
 
 (6) Short V. Edwards, 1 Esp. 374. 
 
 (7) Blake v. Lawrence, 4 Esp. 147. 
 
678 Efect of Pourticiulars of Demand. [ch. x. 
 
 that some of the articles had been furnished to the defendant jointly with 
 the person named in the plea, and they were not distinguished from the rest. 
 of the articles, Lord Kenyon, C. J., held that the plaintiff was bound by his 
 bill of particulars, which supported the defendant's plea : and therefore 
 
 he nonsuited the plaintiff, (1) and the court afterwards refused a *rule 
 *804 nisi to set aside the nonsuit. But the authority of this case has 
 
 been since doubted. (2) 
 
 Errors iri particular . The use of a bill of particulars is to prevent the 
 inconveniences which might otherwise arise from the general and undefined 
 statements in the plaintiff's declaration, and to apprise the defendant of the 
 particulars of the demand which the plaintiff has against him. (3) If it 
 
 (1) Colson V. Selby, 1 Esp. 453 ; S. C. Tidd. Pr. (9tli ed.), 600 
 
 Note 316. — The New York Supreme Court have departed from the case cited in the 
 text, on good authority, but without citing any. Brittingham v. Stevens, 1 Hall's Kep, 
 N. y. S. C. 379. The court say a party furnishing a hill of particulars, is never held to 
 furnish evidence against himself. In practice, it is considered a part of the pleadings. 
 Id. 381. The contrary was expressly held in Kymer v. Cook (1 Mood. & Malk. 86, 87, 
 note a), by Hullock, B., and Bailey, J., A. D. 1827, though they were reminded by Starkie 
 of Brown v. Watts (1 Taunton, 353), which is said tended to show that the particular was 
 to be taken as a part of the pleadings, and therefore not evidence. The decision in Rymer 
 V. Cook was at Nisi Prius. The previous cases of Miller v. Johnson (8 Esp. Rep. 602, 
 A. D. 1797), and Harrington v. Macmorris (5 Taunton, 338, A. D. 1818), were entirely over- 
 looked, where (and in the latter case on full consideration), the court held that a particular, 
 under a notice of set-off, was a part of the notice ; and both being in the nature of a plea, 
 neither was evidence. This notion is so well settled in New York, that the Supreme 
 Court did not think it worth while to cite authorities. Fleurot v. Durand, and Byckman 
 V. Haight, 14 John. E. 339, note 318. 
 (3) Hill V. White, 6 N. C. 33. 
 
 (3) Note 217. — The defendant may call for this bill whenever tjie particulars of demand 
 are not disclosed in the declaration (Mercer v. Sayre, 3 John. Rep. 348) ; and it may be 
 demanded in real actions as well as in ejectment (Vischer v. Conant, 4 Cowen's Rep. 396 ; 
 3 R. S. N. Y. 341, § 16) ; in actions ex delicto, as well as in actions ex contractu. Accord- 
 ingly, it was allowed in trover (Humphrey v. Cottelyou, 4 Cowen's Rep. 54) ; and under a 
 general notice of set-off. Mercer v. Sayre, av/pra. For other cases, see 1 Cowen's Rep. 
 572, note a, and Graham's Pr. 433. On an affidavit that the plaintiff was a seaman, who 
 had served on board the defendant's ship ; that the defendant had paid sufficient money 
 into court to meet the plaintiff's claim for services over and above what had been before 
 paid ; that the plaintiff had since entered successively on board several ships ; and on one 
 under a feigned name ; and that the person who delivered the issue, said he did not know 
 where the plaintiff lived, but that he was in London ; a rule was made that the plaintiff's 
 attorney furnish a note in writing to the defendant, acquainting him who the plaintiff was, 
 of what profession, trade or business, and where he dwelt ; and that the defendant, Lis 
 attorney or agent, should have a view of the plaintiff, on giving notice for that purpose. 
 Collinson v. Gill, 4 Doug. 306. In assault and battery, brought against several individuals 
 for their conduct at a large public meeting, by a stranger, whose name and residence the 
 plaintiff's attorney had refused to disclose, the defendant having pleaded a justification, 
 the court made an order that the plaintiffs attorney disclose the place of residence and 
 occupation of the plaintiff to the defendants, and that in the meantime proceedings be 
 stayed. Johnson v. Birley, 5 Barn. & Aid. 641 ; S. C, 1 Dowl. & Ryl. 174. In a joint 
 action for a libel by several, a rule was made against the attorney of one of them, that 
 he should give an account in writing of the places of residence and occupations of the 
 others, and that in the meantime, proceedings be stayed. The motion was granted, on an 
 affidavit that the defendants had made unsuccessful inquiries, aiid were ignorant of the 
 plaintiff's ; and that the attorney had refused all information. Wortou v. Smith, 6 Moore, 
 110. And where the defendant had pleaded in abatement the non-joinder of several per- 
 sons, to whom the plaintiffs were strangers ; and, on inquiry at certain places and of tjie 
 defendant's attorney, information of the persons whose names were mentioned in the plea, 
 could not be obtained ; and it being that the plaintiffs should learn the truth, so as to know 
 whether it were best to discontinue their action, an order was made that the defendant's 
 attorney forthwith deliver a particular of their places of residence and additions, or, that 
 in default thereof, the plea be set aside. Taylor v. Harris, 4 Barn. & Aid. 93. A similar 
 proceeding was warmly resisted, but finally granted by the Court ol Exchequer. Newton 
 V. Verbeke, 1 Younge k Joit. 357. In this case, an order was made by a judge (HuUock, 
 B.), in the same manner as the usual order for a particular; and though the defendants 
 made an affidavit that they were not able to give satisfactory information, he adjudged 
 it to be evasive, and ordered the plea to be quashed. On a motion to set aside this order. 
 
SBC. v.] Mrrors in Particviar. 679 
 
 gives sufficient information to the opposite party to guard him against sur- 
 prise, it answers the purpose for which it was intended, and will be 
 *805 sufficient, though it *may be in some respects inaccurate. (1) Thus, 
 
 the court sustained it, placing it on the ground of incidental power, in all cases, to compel' 
 the party by a particular to give such necessary information as the generality of Mg 
 pleadings fails to furnish in any respect. See, also, Tomlin v. Brookes, 1 Wils. 846, cited 
 by Savage, C. J., 11 Wend. 166. The plaintiff is under no obligation to furnish particulars 
 of set-off or payment, by defendant, where he makes the defendant certain credits in his 
 complaint. Williams v. Shaw, 4 Abb. Pr. R. 209. (A bill of particulars will not be ordered 
 in an action for wrongfully causing the death of a party. Murphy v. Kipp, 1 Duer, 659. 
 Under the code, § 158, » party alleging an account need not set forth the items thereof, 
 but he is bound to deliver a sworn copy of the account within ten days after demand ; and 
 the court may order a further account when the one delivered is defective, and ftiay in 
 all cases order a bill of particulars to be furnished of the claim of either party. A further 
 account may be ordered after the pleadings are all in; 9 How. Pr. 186; or before the 
 answer is served ; 12 id 22 ; it limits the recovery to the items in it ; Bowman v. Earle 3 
 Duer, 694; 16 N. Y. 548; but it is to be fairly construed; 4 Seld., 346). 
 
 (1) Note 218. — Where the declaration is on a bill of exchange, promissory note or other 
 special contract, and also includes the common counts, and a judge's general order is 
 obtained for a bill of particulars, the plaintiff, though he omit to mention the bill of ex- 
 change, note, &c., in the particular, may yet recover upon it. Cooper v. Amos, 2 Carr. & 
 Payne, 124 ; The People ex rel. Waring v." Monroe C. P., 4 Wend. 200 ; Purdy v. Vemiilyea, 
 4 Seld. 346. And where there was an order to deliver a particular of set-off within one 
 fortnight ; otherwise the set-off to be excluded, and the particular was not delivered till 
 after that time ; yet it appearing that after the particular was delivered, an order, by 
 consent, was made to amend the declaration, this was held a waiver of the irregularity 
 as to time in delivering the bill ; and the evidence was admitted. Wallis v. Anderson, 1 
 Mood. & Malk. 291. 
 
 The plaintiff's bill of particulars is considered as a part or amplification of the decla- 
 ration (Fleurot v. Durand, 14 John. Rep. 329 ; Brittingham v. Stevens, 1 Hall's Rep. N. T. 
 S. C. 379) ; BO that if not delivered pursuant to an order, a motion for Tion pros, will lie. 
 Fleurot v. Durand, 14 John. Eep. 329. So, as we have seen ante (note 316), when it comes 
 from the defendant, it is held a part of his notice of set-off; and unless delivered within a 
 certain time specified, the notice itself is shut out by the order. Viewed in this light, it 
 need not state the credit side of the account ; because pleadings do not state matters of 
 defense or answer to themselves ; and another reason is that the opposite party must 
 know what sums he has paid as well as the party giving the bill. Ryckman v. Haight, 
 15 John. Rep. 222 ; Whaley v. Banks, and Pemberton v. Bellington, Mann. Dig. Practice, 
 B, 6, S. P. But see Mitchell v. Wright, 1 Esp. 230, and Addington v. Appleton, 2 Camp. 
 410, e. contra. Nor is it ncessary to state in the bill any matter of mere defense, answer 
 or rebuttal to me claim of the other party. M. g., money paid on an oi^er drawn by the 
 defendant, is admissible, in answer to the defendant's demand, though the plaintiff's par- 
 ticular do not mention it. Brown v. Denison, 8 Wend. 593. In this case, the plaintiff, it 
 is true, charged the money in the form of an account ; and as such the referees rejected 
 it, because not in the particular ; but Savage, C. J., said : " The account offered was not 
 for the purpose of making out the plaintiff's case in the first instance, but to rebut evidence 
 produced by the defendants." Id. 595. 
 
 A bill is always " considered sufficient, if it fairly apprise the opposite party of the 
 nature of the claims, so that there can be no surprise." Per Savage, C. J., in Brown v 
 Williams, 4 Wend. 360, 368, 369. And see Smith v. Hicks, 5 Wend. 48. This is the car- 
 dinal object. Form is altogether overlooked. A voluntary letter from the plaintiff's 
 attorney, in answer to a letter of the defendant's attorney requesting a bill, that " the 
 suit is on the note declared upon " (Williams v. Allen, 7 Cowen's Rep. 316) ; or a bill 
 under an order, referring to an account before delivered (Hatchet v. Marshal, 1 Peak. N. 
 P. Cas. 171 ; James v. Goodrich, 1 Wend. 289) ; is sufficient. Dates should be given with 
 as much particularity as possible, with regard to which the judge will require greater or 
 less strictness, in his discretion, on summons for amending the bill. Humphrey v. Cot- 
 tleyou, 4 Cowen, 54 ; Quin v. Astor; 2 Wend. 577. And see Newton v. Verbeke, cmte, note 
 216. Though in point of variance on trial, much greater differences than those of mere 
 days or months have been disregarded, yet in this respect the variance ought not to be 
 such as to mislead. Where the plaintiff's bill was for various items of labor under dat» 
 of April 20, 1821, and he offered proof of labor at sundry times in 1817, 1818, 1819, the 
 New York Supreme Court held he must be confined to the year, and on error the decision 
 was holden right. Quin v. Astor, 2 Wend. 577, The particular should give as mach 
 information as a special declaration ; omitting the formal or technical parts. The Court 
 per Parker, C. J., in Babcock v. Thompson, 3 Pick. 448. Where the plaintiff declared in 
 one count specially, inserting a general count which would also embrace the matter of 
 the first count ; and in his particular referred to the first count as containing the sola 
 
680 Effect of Particulars of Demand, [cm x. 
 
 in an action of assumpsit for money paid to the defendant's use, 
 
 *807 -where in the bill of particulars an *item for money advanced was 
 
 by mistake written under the name of A. B., instead of being written 
 
 ground of the action; though the proof varied from the first count ; yet lield it might be 
 received under the general one, and that too upon tliis bill of particulars. So that a 
 special count may be g lod as a particular, ^though bad as a count ; for yet the defendant 
 may not be misled. Hess y. Fox, 10 Wend. 436. This may be made still more plain by 
 an English case. Where the pajticular specified a bill of £60. bearing date on a 
 *806 certain day, and the evidence was *of a bill for £63, dated on a difidrent day, in tha 
 same year and month. Abbot, J., held the variance to be immaterial, as not being 
 calculated to mislead. Dunn v. Thomas, Mann. Dig. Practice, B, c, pi. 17, p. 399, of tha 
 Am. ed. This would have been clearly a fatal variance in a count. But where the decla- 
 ration mas for money had and received, and the particular for " one $1,000 bank bill, bank 
 not recollected, $1,000; two $500 bills of Union Bank, $1,000; two cliecks upon Boston 
 banks amounting to $250 ; bank bills current in the commonwealth amounting to $500 ;" 
 and at the trial the plaintiff proceeded for money fraudulently won at gaming with cards, 
 the judge directed a nonsuit. Babcock v. Thompson, 3 Pick. 446. The court said: 
 " Telling the defendant that the action was for bank bills, gave him no information that 
 would aid him in making his defense." Id. 448. Yet, according to the English and New 
 York practice, a, mere defect or insuflSciency is left to the correction of a judge's order, 
 upon summons ; and cannot be objected at the trial. There the objection usually sounds 
 in a variance, which misleads. Accordingly it was held in Maryland, that where the 
 plaintiff, in his bill of particulars, alleges that money was had and received in a particular 
 iflanner, or on a particular ground or consideration ; on the trial he cannot resort, in 
 evidence, to any other manner, ground or consideration. De Sobry v. De Laistre, 2 Har. 
 & John. 191, 221, 332, 323. 
 
 Yet in respect to variance, these bills are regarded with a spirit very favorable to letting 
 in every claim under them, which can be covered by any possible construction of their 
 language. This we have, in part, seen already ; and it is further evinced by a series of 
 cases. (So held under the present practice. Seaman v. Low, 4 Bosw. 837.) 
 
 Thus, in an action by the assignees of a bankrupt, the declaration stated the cause of 
 action to be money had and received to the use of the bankrupt; the particular of demand, 
 incorrectly described, it, as had and received to the use of the plaintiffs. This was held 
 not to be a fatal variance, it not appearing that the defendant could be misled. Tucker 
 et al. V. Barrow, 1 Mood. & Malk. 137. So the omitting of a letter used between the 
 Christian and surname in the title of the cause ; for the law knows of but one name 
 (Rosevelt v. Gardinier, 2 Cowen's Rep. 463) ; stating the indorsement of a note as in blank, 
 which was filled up on the trial (Horris v. Badger, 6 Cowen's Rep. 449) ; one of two joint 
 debtors being sued alone, and he omitting to plead in abatement, the bill being entitled 
 and the charges made as against him alone (Gay v. Cary, 9 Cowen's Rep. 44) ; where the 
 notes were described as bearing interest from the date, though they did not, the liill 
 giving a correct description in other respects (McNair v. Gilbert, 3 Weiid. 344) ; where the 
 bill stated that the action was for money received from D., on a note drawn by E., for 
 $300, dated, &c., payable to D., indorsed by D., then by the plaintiff, and then by the 
 defendant, on whioh defendant received $300 from D., and the same sum, &c., from the 
 plaintiff; and proof, that what the defendant received of D. was not cash but spedfid 
 articles to an uncertain amount, and the whole note was released to D. by the defendant, 
 who afterwards, as last indorsee, demanded and received the same sum of the plaintiff; 
 for the defendant was informed by this bill, that the money which the plaintiff had paid 
 was sought to be recovered back ; and though the bill spoke of $300 paid by D., still, if 
 the transaction amounted in law to a payment, or discharge, or release of that sum, there 
 could have been no surprise (Brown v. Williams, 4 Wend. 360, 368, 369) ; \\liere tlie bill 
 stated the foundation of tha claim truly, but specified the amount (being money had and 
 received) at $005.63, whereas the proof was of $644.45 (Smith v. Hicks, 5 w'end. Rep. 
 48) ; where there was a misdescription of the defendants as belonging to the pilot line, the 
 evidence being that they belonged to a diffdrent company, other matters appi-aring in the 
 bill sufficient to apprise the defendants of the particulars sought to be recovered, so that 
 they could not be misled ^Benson v. Brown, 10 Wend. 258); and where an insurance 
 broker's claim was for services, in effecting for the defendants a policy of insurance, the 
 broker covenanting to pay the premium ; the declaration being for work and labor and 
 divers premiums ; and the particular simply " For insurance." i'ower v. Butcher, 10 
 Barn. & Cress. 339. A particular for money paid is supported by proof of a payment in 
 land, or other thing equivalent to money. Bonney v, Seeley, 2 Wend. 481. See Ainslea 
 V. Wilson, 7 Cowen's Rep. 668 ; and Randall v. Rich, 11 Mass. Rep. 498, S. P. 
 
 As we before noticed incidentally, a deficiency in the bill as not giving adequate notice, 
 must be supplied on a j udge's order ; and cannot be objected at the trial. James v. Good- 
 rich, 1 Wend. 389. It is proper to add that any ground of variance must be taken, and 
 objected at the trial; or it will be considered as waived. Smith v. Hicks,. 1 Wond. 203. 
 
BEC. v.] Mrrors in Particular. 681 
 
 under that of C. D., in another part of the particular, and thus appeared to 
 have heen advanced to the former, Lord Ellenborough allowed the plaintiff 
 to prove that the item in question was intended, and must have been under- 
 stood, to refer to the latter name, but by mere clerical error had been 
 misplaced ; and that if the defendant could show by affidavit that he had 
 been misled by the plaintiff's particular, it might furnish a ground for the 
 court afterwards to set aside that particular sum.(l) So, where the work, 
 for which the action was brought, was stated by the particular to have been 
 done in a month when in fact no work had been done, the plaintiff was 
 allowed to give evidence of his having done work for the defendant in 
 another month. (2) 
 
 Where the particulars of the plaintiff 's demand were on an account stated, 
 with this addition, "as appears by a memorandum under the hand of the 
 defendant of this date," and the memorandum could not be received for 
 want of a stamp ; it was held, that the account stated might be proved by 
 other evidence than the memorandum ; and that parol evidence might be 
 given of an admission of the money being due, and of a promise to pay by 
 installments, though the admission and promise were made at the same time 
 with the memorandum, and embodied in it. (3) 
 
 In an action brought by one partner against another to recover a balance 
 due on a statement of accounts, where the bill of particulars was confined 
 to the balance due on separate accounts, (4) the plaintifi', in support of this 
 demand, gave in evidence an account in which the defendant made himself 
 debtor to a certain amount, and the defendant in answer to this evidence 
 produced an account subsequently rendered by the plaintiff, according to 
 which there apppeared to be a balance due to the defendant on the separate 
 accounts ; but on the opposite side of the p3,ge, there was a statement also 
 of the partnership accounts, on which the balance was in favor of the plain- 
 tiff, and greatly exceeded the balance on the separate account. It was 
 objected that the plaintiff could not recover beyond his particular ; Lord 
 Ellenborough, C. J., however held, that the defendant himself had given the 
 plaintiff a better case than he was at liberty to make for himself, and 
 *808 that the plaintiff was entitled to a verdict for all *that had been 
 proved to be due to him. (5) The parties afterwards came to a com- 
 
 (1) Day V. Bower, 1 Camp. 69, n. See Brown v. Hodgson, 4 Taunt. 189. See also 
 Davies v. Edwards, 3 M. & S. 380, an action of debt to recover rent, where the locality of 
 the premises, not described in the pleadings, had been misdescribed in the particular ; but 
 the QJjjection was overruled. 
 
 (3)-Millwood V. Walter, 2 Taunt. 224. See also Harrison v. Wood, 8 Bing. 371 ; Lam- 
 birth V. Roff, Id. 411 ; Green v. Clark, 2 Dowl P. C. 18. And see Moss v. Smith, and Lamb 
 V. Micklethwaite. supra, pp. 546, 547 ; Kirkmau v. Jervis, 3 Jar. 605 ; Parsons v. Wilson, 
 4 Scott N. R. 1 ; S. C, 1 Dowl. (N. S.) 181. 
 
 (3) Singleton v. Barrett, 2 C. & J, 368. 
 
 (4) Hurst V. Watkins, 1 Camp. 68. 
 
 (5) Note 219. — Bat the courts in New York hold, that where the defendant himself, 
 in opposing the plaintiff's demand, specified in his bill of particulars, gives evidence 
 which supports the plaintiff's declaration, though such evidence is out of the bill, the 
 plaintiff may recover upon it^as in this case: the plaintiff's declaration was upon a 
 promissory note against the defendant alone, with the common counts ; the plaintiff in 
 his bill claimed the note alone. On the trial, the defendant proved that the note in ques- 
 tion was usurious, as being given for another note and an account due to the plaintiff 
 from the defendant and a third person ; the note in question including usurious interest 
 on the claim whicli it was thus given to secure. Held, that the plaintiff might recover 
 the amount of the original note and account, there being no plea in abatement. Williams 
 v. Allen, 7 Cowen's Rep. 316, 318. This was held on the authority of Huist v. Watkins, 
 cited in the text. 
 
 When the plaintiff is proceeded against, the first order is, on a proper affidavit, that 
 the particular be delivered, or cause shown at a fixed day and place, proceedings in the 
 meantime to be stayed. On showing the service of the order and a non-compliance, a, 
 second order is made that the party defiver a particular (generally), and that, in the 
 meantime, all proceedings stay. The proceedings are the same against the defendant 
 
 Vol. L 86 
 
682 Effect of Particulars of Demand. [ch. x. 
 
 , promise, and agreed upon the sum to be recovered. So it has been held,(l) 
 that although the hill of particulars confines the plaintiff's evidence to the 
 causes of the action mentioned in the particulars, yet if the defendant, in 
 giving evidence for himself, gives evidence also for the plaintiff of some 
 claim not included in the particulars, the plaintiff as to that claim is no 
 longer confined to the particulars, but may avail himself of the defendant's 
 
 evidence. 
 *809 *When particulars of demand have been annexed to the record, pur- 
 suant to the rule of court before mentioned, (2) neither the order for 
 particulars, nor the delivery of the particulars, need be proved. When 
 they are not annexed, the particulars are proved by producing the judge's 
 order, and proving the delivery of the particulars. (3) The delivery will be 
 sufficiently proved by proving the signature of the party's attorney, or of 
 his agent, on the particular. 
 
 If the particulars annexed vary from those delivered to the defendant, it 
 ■will be prudent to be prepared with proof of the particulars delivered, that 
 he may avail himself of such proof, in case the plaintiff has not proved any 
 cause of action included in the particulars delivered. (4) This variance 
 would be a ground of nonsuit. 
 
 The particulars, as before stated, (5) form no part of the record, and are 
 not to be considered as incorporated with the declaration,(6) nor can they 
 be resorted to for the purpose of explaining or aiding the pleadings. (7) 
 
 The particulars of the defendant's set-off are merely explanatory of the 
 plea of set-off, and if the plaintiff puts them in evidence for the purpose of 
 rebutting a defense founded on the Statute of Limitations, he does not 
 thereby admit the correctness of their contents. (8) 
 
 except that the second order shuts out his set-off, &c., on non-compliance. The demand 
 cannot be made till the pleading or notice comes in ; but then may be at any time before 
 trial. For these and other particulars of practice on this head, see 1 Cowen's Rep. 573, 
 et seq. note a ; and Graham's Pr. ch. 4, p. 434 to 440 ; Rowan v. Merritt, 9 Wend. 448 ; 
 Fassett v. Dorr, 11 Id. 177 ; and Smith v. Lehie, 1 Rep. Const. Ct. 240. 
 
 In Llavelock v. Chevely, cited in the text, the cause stood in the paper for trial, July 
 10th, 1817. Park, J., had, twenty-two days before, made an order that the defendant 
 forthwith deliver a particular ; but he had not done so till ten days after, and twelve days 
 before the matter was moved at Nisi Prius. The object now seemed to be the exclusion 
 of the set-off, by a summary order of Gibbs, C. J., who was holding the court. The claim 
 was on an attorney's bill, and it was agreed that it had not been delivered in time for 
 taxation. The chief justice held that by not applying to a judge (to the court as the case 
 says) to have the set-off excluded, but waiting till this time (when the cause stood for 
 trial), the right to reply was waived. The chief justice said, " the demanding and grant- 
 ing of particulars is almost a new system within the recollection of many of us. ,They 
 undoubtedly facilitale the trial of a cause, but they must not be permitted to obstruct the 
 justice of it. The party who objects to the particular, as insufficient, must malce his 
 complaint at the proper time. He cannot wait till the trial of the cause, and then raise 
 an objection which, if earlier mad«, might have been disposed of." 
 
 These remarks are general, and import that in any case, where a party lies by, under a 
 defective bill of particulars, and allows his adversary to take important steps, he will 
 not then be permitted to call for an order in the matter, if that order will operate to the 
 prejudice of his adversary, whether plaintiff or defendant. Such, too, appears to be 
 the principle advanced by Sutherland, J., in Goodrich v. James (1 Wend. 289.) 
 
 Where the defendant applies for a bill after issue joifted, there is prima facie a sus- 
 picion that he means delay ; and he should present an excuse by aflBdavit for being so 
 fate, especially where he applies after the cause is noticed for trial. Andrews v. Cleve- 
 land, 3 Wend. 487. So, it is presumed, as to an order for amending. 
 
 (An amendment will be allowed in cases of mistake. Stanley v. Millard, 4 Hill, 50 ; 
 Bates V. Watkyns, 2 How. Pr. 18.) 
 
 (1) Fisher v. Wainwright, 1 M. & W. 486. 
 
 (2) Supra, p. 799. 
 
 (3) Macarthy v. Smith, 8 Bing. 145. 
 
 (4) Morgan v. Harris, 3 C. & J. 461. See Ripper v. Walton, 1 Dowl. (N. S.) 844. 
 Supra, p. 799.' 
 
 Booth v. Howard, 5 Dowl. P. C. 488. 
 
 Kilner v. Bailey, 5 M. & W. 382 ; Rogers \. Custance, 1 Q. B. 77. 
 Barkitt v. Blanohard, 18 L. J. (N. S.) Eich. 34. As to the plaintiff's being entitled 
 
 (7) 
 (8) 
 
CH. XI. J, Whidi Party to prove the Issues. 683 
 
 CHAPTER XI, 
 
 OF THE BULB FOR DETERMINING WHETHER THE PLAINTIFF OK THE DEPEN- 
 DANT OUGHT TO PROVE THE ISSUES ON THE RECORD. 
 
 The competency of witness, and tbe quality of evidence, having been 
 fully treated of, two questions remain to be considered ; the one, as to the 
 party on whom the burden of proving an issue is cast ; the other, as to 
 the form or particularity required in the proof: in other words, which of the 
 parties is to prave the issue, and to what extent must the issue be proved ? 
 These will be the subjects of the two following chapters. 
 
 There are several general rules of great use for ascertaining whether 
 *810 the *plaintiff or the defendant will have to prove the issue on the 
 
 record. One of the most useful of these is, the rule that the point in 
 issue is to be proved by the party who asserts the affirmative,(l) that is, the 
 affirmative in substance, not in mere form. (2) Upon the party who 
 
 to a reply where the defendant has put in the particulars of the plaintiff's demand aa 
 evidence, see Rymer v. Cook, Moo. & M. 86. 
 
 (1) M incumbit prdbatio qui dieit, non qui negat. Dig. xxii, 3, 3. 
 
 (3) See by Lord Abinger, C. B., in Soward v. Leggatt, 7 C. & P. 615. See also Mercer 
 V. Whall, 5 Q. B. 447 ; Cameron v. Farmer, 3 C. & K. 746 ; 10 Bosw. 180, 184. 
 
 Note 230.— See Bull. N. P. 398; Vin. Abr. Ev. § a; Phelps v. Hartwell, 1 Mass. Rep. 
 71 ; Owings v. Patterson, 1 Marsh. Rep. (Ken.) 335. 
 
 " The principle," saya Mr. Evans (3 Ev. Poth. 143), " that he who alleges himself to be 
 the creditor of another, is obliged to prove the fact of agreement upon which his claim is 
 founded, when it is contested ; and that, on the other hand, when the obligation is proved, 
 the debtor who alleges that he has discharged it, is obliged to prove the payment, ia 
 clearly one of those propositions, in which every system of jurisprudence must concur in 
 general, whatever particular rules may be adopted, as to the mode and form of the allega- 
 tions, by which the necessity of such proof is to be determined." See Bogei;t v. Morse, 1 
 Comst. 377 ; 4 Denio, 108. 
 
 The question upon whom the onu^ probandi rests in the first instance, is usually deter- 
 mined by the state of the pleadings. Hence a plaintiff must, in"" general, prove his 
 declaration. But if the defendant admits the facts alleged against him, and pleads and 
 relies on another fact as a bar to the action, then the onus probandi is thrown upon him, 
 and he must prove this fact (Ross v. Gould, 5 Greenl. Rep. 204) ; as where he pleads to a 
 bond the' want of consideration (Rudd v. Hanna, 3 Monroe, 538, 531 ; and see also M'Neil 
 et al. v; Coleman, 8 Mart. Lou. Rep. (N. S.) 373) ; and if the nature of a plea in bar be 
 such as not to deny the genuineness of a contract declared on, as for instance, the plea of 
 general performance, or the plea of seizin at the time of making the covenant alleged, 
 of the plea of payment or release, the contract may be read to the jury without any proof 
 of execution. Ross v. Gould, supra; Scott v. Hnll, 8 Conn. Rep. 296 ; and note 196. The 
 same principle is applicable where the contract is offered in evidence merely, and its 
 genuineness is denied. When it is admitted on prima facie evidence, the jury are the 
 proper and constitutional judges, whether the contract be genuine or not. In the exami- 
 nation of the contested fact, the onus probandi may, in the course of the trial, be thrown 
 from one party to the other several times, according as the complexion of the proof may 
 change. But when it is said that the onus probandi is on a party who offers a paper as 
 genuine, the plain, common sense, and legal meaning is, that it has reference to all the 
 evidence in the cause, and not merely that which is necessary to authorize it to be read in 
 the first instance ; in other words it means thot the party affirmmg the paper to be genu- 
 ine, must furnish so much evidence as to leave a balance of proof in favor of the 
 genuineness of the instrument, after making all due allowance for the proof adduced on 
 the other side, to produce a contrary conviction. Ross v. Gould, sitpra. See Brooks et 
 al. V. Barrett et. al., 7 Pick. 94, 99, 109. And these general remarks, though applied to 
 the case of a paper offered as evidence, will be found equally pertinent to any other 
 instance, where, on the trial of a cause, some given proposition is sought to be established 
 by the one party or the other, and there is a controversy with respect to it. " Whenever 
 afixed and undisputed point is established by either party, it is from that point that the 
 conflict must commence, whether in those cases where the allegations are particular, or 
 in those where the whole matter in dispute is open upon general pleading. Thus, if a 
 plaintiff establishes a possession of any article taken from him by the defendant, and the 
 defendant asserts a light of property, upon which the evidence given by the respective 
 parties does not lead to a dedsive preponderance ; the decision should be in favor of the 
 
684 Which Party to prove the Issues. [ch. xi, 
 
 plaintiff, Ms possession being an adequate title, until a superior property is proved, by a 
 preponderance of evidence on the other side. 2 Ev. Poth. 143, 144. See ante, note 186. 
 So where the plaintiff shows title in himself, and the defendant relies upon an adverse 
 possession, either as a bar to the action, or as part of his title, the burden of proving its 
 length lies upon him. Darden v. Allen, 1 Dev. 466 ; Hurst's Lessee v. M'Neil, 1 Wash. 
 
 C. C. R. 70, 80. " So if an heir at law claims as plaintiff in ejectment, and his 
 *811 * consanguinity is established or admitted, he wili,be entitled to the advantage of 
 
 equivalent proofs, in affirmance or contradiction of an adverse will." 3 Ev. Poth. 
 144. And where the plaintiff sold to the defendants a cargo, estimated at 37,000 lbs. ; the 
 defendants agreeing to have the same weighed and render an account, and if the cargo 
 turned outto be less, the plaintiff was to pay back the deficiency pro rata, and if greater, 
 they were to pay for the surplus ; the defendants having so managed as to leave it uncer- 
 tain what the quantity was ; held, that the general estimates made by the witnesses 
 should be taken most strongly against theni. Jones v. Murray, 3 Monroe, 83, 86. In 
 trespass for breaking a close called Lord's Leys ; the defendant pleaded right on Brock- 
 eridge Common, and that Lord's Leys was part of the common ; to which the plaintiff 
 replied no right on Lord's Leys. At the trial, the plaintiff admitted that the defendant 
 had a right on all Brockeridge Common, save the portion called Lord's Leys, and the 
 defendant admtted he had no evidence of any exercise of the right on Lord's Leys. Upon 
 these pleadings and admissions, it was held, that the defendant must show, either that 
 the original grant, or the prescriptive right set up in the plea, comprehended the whole 
 common without exception ;" " so that, if the original grant cannot be produced, and the 
 evidence as to the prescriptive right over the part called Lord's Leys hangs in even scales, 
 the balance must be declared in favor of the plaintiff." Maxwell v. Martin, 6 Biug. 523. 
 " If the respondent in a sessions appeal, fixes an original settlement with the appellant, 
 the obligation of proof is transferred, and the establishing a preponderance of evidence of 
 a subsequent settlement becomes the business of the appellant." 2 Ev. Poth. 144. In 
 assumpsit for the support of a pauper, deriving his settlement from that of his father or 
 mother, brought in Massachusetts, against the town where the mother had her settle- 
 ment ; it was held incumbent on the plaintiff to show that the father had not a settlement 
 within the commonwealth ; " for though this is a negative in appearance, yet it is proved 
 by showing where he did belong." Wilmington v. Burlington, 4 Pick. 174. Saepost, 
 note 232. " And in general, whoever asserts a claim, or negatives a claim which, without 
 contradiction, would be sufficiently established, must support his position either by cir- 
 cumstances inducing a legal presumptirn in his favor, or by proofs in opposition to what 
 the law presumes against him, or respecting which the law is passive in not establishing 
 any presumption on the one side or the other." 2 Evans' Poth. 144. 
 
 Numerous cases, illustrative of these observations, have already been noticed under the 
 head of presumptive evidence ; and as the propriety of examining them, and others of a 
 kindred character occttrring hereafter, will be readily suggested to the reader, we shall 
 here introduce but few additional ones. In an action by the indorsee of a note against 
 the maker, if the defendant wish to avail himself of payments not indorsed, the onus 
 will lie on him to prove that the payments were made ijefore the transfer, and that the 
 plaintiff is not a bona fide holder, having obtained the note ifter it was discredited, or 
 the like. Wilbur v. Turner, 5 Pick. 526 ; Webster v. Lee, 5 Mass. Eep. 334 ; Hemenway 
 v. Stone, 7 Mass. Eep. 58. But if, in such case, it be shown that the note was fraudulent 
 in its origin, or was fraudulently put in circulation, the burden will then devolve on the 
 plaintiff, to show that he came fairly by the note, and without notice of the fraud. Muu- 
 roe v. Cooper et al., 5 Pick. 412 ; WoodhuU v. Holmes, 10 Johns. Rep. 231 ; Grant v. 
 Vaughan, 3 Burr. Rep. 1516 ; Peacock v. Rhodes, Dougl. 633 ; Solomons v. Bank of Eng- 
 land, 13 East, 134. (The nature of the action, the form of the pleadings and the presump- 
 tions of law which arise in the case, are to be considered in determining upon wnom the 
 burden of proof rests. In actions upon negotiable paper, which is presumed to have been 
 given in the usual course of business, and for value, the plaintiff establishes his cause of 
 action by simply producing the note where it is payable to bearer, and proving the 
 maker's signature, and wher« it is payable to order and indorsed generally by the payee 
 by producing the note and proving the signature of the maker and indorser ; the law in 
 such cases presuming that the paper was transferred to the plaintiff for value. J mes v. 
 Chalmers, 2 Seld. 209. Though it appears that it was indorsed or transferred to plaintiff 
 after it became duo, the presumption still holds that it was so indorsed or transferred for 
 value. Id. When it is shown that the bill or note was lost by or stolen from the owner, 
 obtained from him or from the maker by fraud, that it was given under duress, for an 
 illegal consideration, or without consideration for a particular purpose and dishonestly 
 used for another, the burden of proof is on the plaintiff, to show under what circum- 
 stances, and for what value he became the holder. See Edwards on Bills and Notes 
 686, 692. 
 
 In actions against banks or bankers or others acting as collecting agents, for damages 
 caused by their failure to demand payment of a note left with them for collection, or to 
 give the indorsers notice of non-payment, proof of the defendant's failure to make a due 
 demand or to give the indorsers due notice, and that the maker was insolvent, casts upon 
 
CH. XI.] Which Party to prove the Issues. 685 
 
 the delinquent agent the burden of showing that the indorsers were insolvent, so that 
 nothing was lost by his negligence ; Coghlan v. Dinsmore,' 9 Bosw. 453 ; Walker v. Bank 
 of State of N. Y., 5 Seld. 583 ; Bank of Utica v. Smedes, 3 Cow. 662 ; Allen v. Suydam, 
 20 Wend. 829.) In actions for death or injury caused by the defendants negligence or 
 misconduct, the burden of proof rests upon the plaintiff to show that the death or injury 
 ■was caused by the negligence of the defendant or its servants ; Holbrook & wife v. The 
 tJtica & S. R. R. Co., 2 Kern. 236 ; that the negligence of the deceased did not contribute 
 in any degree to the injury ; Button v. Hudson Rivet H. R. Co., 18 N. Y. 248 ; Sandford v. 
 Eighth Avenue R. R. Co., 7 Bosw. 122 ; Owen v. Hudson River R. R. Co., Id. 329, 437, 511 ; 
 but this negative fact need not be shown by fonnal and direct evidence ; it is sufficient if 
 it may be fairly inferred from the circumstances. Johnson v. Hudson River R. R. Co., 20 
 N. Y. 65.) The indorsi'mentjof a note by one of several partners in the partnership 
 name, as sureties for a third person, not being binding upon the firm, unless consented 
 to by them, the burden of proving such consent lies on the creditor or holder of the 
 note. New York Fire Ins. Co. v. Bennett et al., 5 Conn. Rep. 574. (See also Clark v. 
 Dearborn, 6 Duer 309 ; 11 Barb. 312.) It is a rule that where the interest of a person rests 
 upon an affirmative, it is for him to prove the affirmative. Per Tenterden, C. J., Allison 
 V. Rayner, 1 Mann. & Ryl. 241, 244. Thus, an attorney cannot recover, from the assignee 
 of an insolvent, the amount of a bill of costs incurred in proceedings requiring the con- 
 sent of a meeting of creditors, without proving such consent, or that the client was apprised 
 that he was proceeding at his own risk. See, also, Breedlove v. Turner, 9 Mart. Lou. Rep. 
 353, 380. In an action for breach of contract in not furnishing castings after notice given ; 
 the plaintiff showed that he gave notice, and requested the castings sliould be made on a 
 basket belonging to the defendants, as he had a right to do by the contract ; held, that it 
 was for the defendants to show that the basket was not a pattern. Perry v. Bosford et al., 
 5 Pick. 189. The admissions of a party against his title are strong evidence, and the onus 
 lies upon him, if he would avoid their effect, to show that they were founded in innocent 
 mistake. Owen v. Bartholomew, 9 Pick. 531. The presumption is always in favor of the 
 competency of a witness, and the party who would exclude him must show that he is 
 incompetent. Per Bayley, J., in Marsden v. Stansfield, 1 Mann. & Ryl. 669, 672. In an 
 action by the assignee of an insolvent debtor, in which the plaintiff declares for a cause of 
 action existing prior to the assignment, the plaintiff is bound to prove the character in 
 which he sues, though nothing but the general issue be pleaded. Best v. Strong, 2 Wend. 
 Kep. 319. Vide post, and also this case and others upon the question^ how far the general 
 issue admits the character in which the plaintiff sues, ante, note 196. Wher« distinct 
 proof of the forgery of the instrument declared on has been introduced, and the plaintiff' 
 seek s to recover, upon the ground of a subsequent adoption of the instrument, the burden 
 of proving this fact lies on him. Phillips v. Ford, 9 Pickering, 39. In the case of a cap- 
 ture of a vessel at sea, upon the question of prize or no prize, the onus lies, in the first 
 instance, upon the captors. Miller et al. v. The Resolution, 2 Dall. 32. And where the 
 ship and cargo were found in the possession of the enemy's hands, by capture from the sub- 
 jects of a neutral nation, it was held that the possession by the enemy was accounted for, 
 and that the presumption thence arising of enemy property was rebutted. Id. Where 
 goods are seized, and claimed as forfeited, as part of the cargo, the onus is on the govern- 
 ment to prove that such goods were part of the cargo on board at the time of the offence. 
 United States v. An Open Boat, 5 Mason's Rep. 233. Where the defendant, an" attorney, 
 was sued for negligence in allowing judgment to go by default, in an action which the 
 plaintiff had retained him to defend ; the negligence being proved, held, that the onus 
 was upon the attorney to defend himself, by showing, if he could, that the plaintiff had no 
 defense in that action ; and not for the plaintiff to begin, by showing that he had a good 
 defense, and so had been damnified. Godefroy v. Jay, 7 Bing. 413 ; S. C, 5 Moore & 
 Payne, 284. In an action by a passenger in a stage coach against the proprietors, for an 
 injury, occasioned by the insufficiency of the coach, the plaintiff proved that while the 
 coach was driven at a moderate rate, upon a good road, one of the wheels came off, &c. ; 
 held, that negligence is implied from these circumstances, and the burden of proof is upon 
 the defendants, to rebut this legal inference. Ware v. Gay et al., 11 Pick. 106. See Story 
 on Bailments, 378, 379. (Proof of non-delivery by the carrier is sufficient to cast upon 
 him the burden of giving some account of the goods ; Newstadt v. Adams, 5 Duer, 43 ; the 
 loss being shown, the carrier is bound to show how it occurred, in order to bring the case 
 within an exception contained within the contract ; Fenn v. Timpson, 4 E. D. Smith, 276 ; 
 Simmons v. Law, 8 Bosw. 213. So goods lost in an inn are presumed to have been lost 
 through the negligence or connivsince of the innkeeper ; Van Wyck v. Howard, 13 How. 
 Pr. 147. Ordinarily, in actions against common carriers plaintiff proves the contract and 
 delivery for carriage, and the defendant's failure to deliver at the place of destination ; that 
 is to say, plaintiff proves the contract and the breach ; 6 Carr. & Payne 58 ; 16 Verm. 48 • 
 4 Barn. & Aid. 21 ; 21 Wend. 190 ; Edw. on Bailm. 566 567. In actions brought by a pas- 
 senger for injury, the plaintiff must prove, as we have just seen, that the injury was 
 caused by the defendants negligence, which is generally sufficiently established by proof 
 of the injury and the circumstances attending it ; Holbrook v. The Utica & S. R. R. Co 
 12 N. Y. 236 ; Mulhado v. Brooklyn City R. B. Co., 80 N. Y. 370 ; it mustalso appear that 
 
/ 
 
 686 Which Party to prove the Issues. [ch. xi. 
 
 *812 has to give such *proof is said to rest the burden of proof, or, as it is 
 technically called, the onus probandi. 
 One of the surest tests for ascertaining upon which side the affirmative 
 really lies, is to consider which party would be successful if no evidence at 
 all were given,(l) or what substantially amounts to the same thing, to 
 examine whether, if the particular allegation to be proved were struck out 
 of the plea or other pleading, there would or would not be a defense to the 
 action, or an answer to the previous pleading. (2) 
 
 Charge of breach of duty, involving negative. Thus, where one party 
 charges another with a culpable omission or breach of duty, the per- 
 
 *813 son who makes the charge is bound to prove it, *though it may 
 involve a negative ; for it is one of the first principles of justice, not 
 
 to presume that a person has acted illegally till the contrary is proved. (3) 
 
 he was not himself guilty of any negligence contributing to the injury; Button v. Hud" 
 son River R. K. Co., 18 N. Y. 248 ; Trow v. Vt. Central E. E. Co., 34 Verm. 487 ; Dowell 
 V. The Steam N. Co., 5 Ellis & Bain. 195 ; Johnson v. Hudson Eiver E. R. Co., 30 N. Y. 
 65. In an action against a Canal Company, which offers its canal for public use, for daniT 
 ages sustained by plaintiff's boat striking on a rock under the water, plaintiff is bound to 
 show that the injury was caused by the defendant's negligence, or want of care and cau- 
 tion to keep the canal in a suitable condition for safe navigation ; Exchange Fire Ins. Co., 
 V. Del. & Hudson Canal Co., 10 BosW. 180 ; Lancaster Canal Co., v. Barnaby 11 A4 & 
 El. 233. 
 
 It is negligence in the driver of a street car to start forward just as a passenger is step- 
 ping from the car; 30 N. Y. 370.) Though a deed may be read in evidence to the jury, 
 after preliminary proof by the subscribing witnesses, yet, if the genuineness of the instru- 
 ment is controverted, the onus is still on the party introducing it, to satisfy the jury 
 beyond a reasonable doubt, that it is genuine. Boss v. Gould. 5 Qreenl. 204. (Where the 
 purchaser of real estate, in possession, is sued for balance of the purchase money, and sets 
 up that the vendor had no title, the burden of proof rests upon him to show the defect in 
 the title ; Hunt v. Utter, 15 Ind. 318 ; so the burden of proof is upon the party attack- 
 ing the consideration of a deed ; Gaugh v. Henderson, 3 Head (Tenn.) 638 ; Ewing v. Gray, 
 13 Ind. 64.) Where the action was on a single bill, by wliich the money therein men- 
 tioned was to become due, if the obligor could not make it appear " that no other person 
 committed the trespass ;" held, that as consideration was presumed, the onus of proving 
 that some other person did commit the trespass, lay on Ae defendant, if he wished to 
 avail himself of that fact. Hays v. Lusk, 3 Eawle, 34. 
 
 (1) By Alderson, B., in Amos v. Hughes, 1 Mo. & E. 464. See, also. Eidgway v. Ewbank, 
 2 Id. 318 ; Geach v. Ingall, 14 M. & W. 97 ; Belcher v. M'Intosh, 8 C. & P. 721 ; Doe d. 
 Worcester (Trustees) v. Rowland, 9 C. & P. 735 ; Osborn v. Thompson, 2 Mo. & E. 256. 
 
 (2) By Alderson, B., in Mills v. Barber, 1 M. & W. 427. 
 
 (3) Note 231.— United States v. Hayward, 3 Gallis. 485, 498. In all cases where a 
 party stands charged with an offense, his innocence is presumed, and the onus is upon the 
 prosecutor, unless a different ftile has been expressly provided by statute. United States 
 v. Gooding, 12 Wheat. 460, 471 ; Commonwealth v. Stow, 1 Mass. Eep. 54 S. P. In the 
 case last cited, the defendant was indicted for haxdng given a false and fraudulent certifi- 
 cate of membership, under the Massachusetts law of June 13th, 1800 ; and, on the trial, 
 it became a question, whether it was for the defendant to prove the certificate true ; the 
 court thought not, and so held, though it was contended that this was in effect, requiring 
 from the prosecutor proof of a negative. Upon an indictment under the statute law of 
 the same state, relating to hawkers and pedlers, which has a proviso, that nothing therein 
 contained " shall prohibit any person carrying and selling, &c., goods, &o., of the produce 
 or manufacture of the United States," &c. ; it was held incumbent on the prosecutor to 
 prove that the articles were of foreign manufacture. Commonwealth v. Samuel, 3 Pick. 
 103. Where the charge, however, does not consist in a criminal omission or breach of 
 duty, the rule is otherwise. See post, note 234. Yet, in a case in which the plaintiff 
 claimed a slave as forfeited by the defendant, upon the ground that the defendant, a 
 widow, to whom the slave had been asajgned as dower, removed such slave from Virginia, 
 without the consent of the reversioner, contrary to the law of that state ; it was held 
 incumbent on the plaintiff to show that the reversioner did not consent. Hicks et ux. v. 
 Martin, 9 Mart. Lou. Rep. 47. 
 
 Upon a question whether the vendor of property, at the time of sale, did disclose cer- 
 tain defects which it was proved he knew, the onus is upon the party charging the fraud, 
 to prove that the vendor did not disclose ; for fraud is never to be presumed, but must 
 always be proved. Fleming v. Slocum, 18 John. Rep. 403. See, also, ante, note 177, and 
 numerous cases there cited, illustrating this and its kindred principles of presumption. 
 
CH. 33.] Which Party to prove the Issues. 687 
 
 And where one gives another discretionary power to adjust a demand, and pay dues and 
 costs, the adjustment is presumed correct, and, if the agent prosecutes for the money paid, 
 it lies with the defendant to show an abuse of the discretion, or fraud in the adjustment. 
 Sherman v. Crosby, et al. 11 Johns. Rep. 70. And, in general, wherever a party alleges 
 bad faith, he is held to the strictest proof, for the presumption is against him ; he must 
 not merely make his allegation probable, but must bring the weight of evidence distinctly 
 on his side. Fort et ux. v. Metayer et al., 10 Mart. Lou. Rep. 436 ; Turnbull v. Martin, 
 10 Id. 419. 
 
 Though the law presumes the continuance of life, as we have seen, ante, p. 640, of the 
 text, yet, in a case where this presumption comes in conflict with, and necessarily involves 
 a presumption of crime, the former, which is the weaker, yields to the latter ; and the 
 party affirming that an individual is not dead, will be bound to prove it. Thus, on a 
 question of settlement, where a woman, twelve months after her first husband was last 
 heard of, married a second husband, and had children by him, it was held, on appeal' to 
 the sessions, that the onus of proving that the first husband was not dead at the time of 
 the second marriage, lay on the party who objected to such second marriage ; for the coil'- 
 sequence of presuming life would be, that the woman had committed bigamy. Rex v. 
 The Inhabitants of Twyning, 2 Barn. & Aid. 386. But in Doe ex dem. James v. Price 
 (1 Mann. & Ryl. 683), where, m ejectment, the plaintifT relied on the invalidity of a second 
 marriage, by reason of a former marriage by license, one of the parties being a minor, and 
 the defendant had notice, previous to the trial,' of the question intended to De raised (s. c. 
 whether the former marriage was with the consent of the minor's parent), but on the trial 
 gave little or no evidence negativing the fact of the parent's consent ; and the entry in 
 the register stated nothing in relation to it, but evidence was given, on the part of the 
 plaintiff, showing that the parent knew of tbe former marriage ; the court, after verdict 
 for the plaintiff, refused to grant a new trial, although it was contended, upon the authority 
 of Rex V. The Inhabitants of Twyning (supra), and other cases cited in the text, that the 
 onus of proving express consent lay on the plaintiff. Bayley, J., delivering the opinion 
 of the court, placed much stress upon the fact of notice having been given to the 
 *814 defendant of the ground intended to be taken by the plaintiff: — "And it was *hl3 
 hounden duty to have procured every species of evidence that was calculated to 
 negative the fact of the first marriage having been solemnized with the consent of parties." 
 The decision does not conflict, in any respect, with the case of Rex v. The Inhabitants of 
 Twyning, but goes upon the ground that it is not thp duty of the court to grant a new trial, 
 for the purpose of letting in evidence which might have been produced at the former trial. 
 
 Where a statute directs that the examination of a prisoner before a magistrate shall be 
 reduced to writing (e. g. the Statutes of Philip and Mary), the court will presume that 
 the magistrate has done his duty ; consequently no parol evidence can be given of a pris- 
 oner's declaration before a rft^gistrate, without previous proof that it was not taken down 
 in writing. Ante, note 151, and the cases there cited ■ in addition to which, see Rex v. 
 Hall, Leach, 240 ; Hex v. Fearnshire, Id. 446 ; 2 Hawk. P. C, ch. 46, g§ 41, 43 ; 2 Starkie's 
 Ev. 51. And so doubtless in New York, as to examinations under 2 Rev. Stat. 708, §§ 14, 
 15, 16. The rule is general, and almost without an exception, that ofBcers acting under 
 oath, or in whom the government reposes a trust, are presumed to have done their duty, 
 till the contrary be proved. Thus, where it was the duty of an oflicer not to issue a grant 
 until a certain warrant had been lodged with him, the court presumed that he had the 
 warrant, from the fact of his issuing the grant. Hickman v. Boffman, Hardin's Rep. 348. 
 This principle is equally applicable to a proceeding against the officer, and to a proceed- 
 ing against the right of an individual, derived through the act of the officer. Id. That 
 an officer, whose duty it is to search for personal property before he sells real, has so 
 searched, will be presumed until the contrary is established. Beeler's Heirs v. Bnllitt's 
 Heirs, 3 Marsh. Ken. Rep. 280. And where an execution against C. was delivered to a 
 deputy sheriff in December, returnable the third Tuesday o£ February following, and in 
 March C. sold a pair of horses, of which he was possessed when the execution was deliv- 
 ered, and until its return day ; the deputy sheriff afterwards took the horses, and sold 
 them at sheriff's sale, under the execution ; held, in an action of trespass against the offi- 
 cer by the purchaser of C, that, in the absence of any positive proof, it was fairly to be 
 presumed that a levy had been lawfully made by the officer before the return day. Hart, 
 well V. Root, 19 Johns. Rep. 345. So, where land is sold under a fi. fa., and a deed exe- 
 cuted by the sheriff, the court, in favor of the purchaser or those claiming under him, 
 will presume a levy. Jackson ex dem. Sternberg et al. v. Shaffer, ll Johns. Rep. 513. 
 See Bliss v. Ball, 9 John. Rep. 132. And so the law presumes the sheriff to have given 
 due notice of sale, until the contrary be shown. Topper v. Taylor et al. 6 Serg. & Ba.wle, 
 173. But when such evidence is produced as renders it probable that notice was not 
 given, the onus changes to the person claiming under the sheriff's deed. Id An officer of 
 the customs, duly commissioned and acting in the duties of his office, is presumed to have 
 taken the regular oaths. United States v. Bacheldor, 2 Gall. Rep 15. And every judg- 
 ment of a court of competent jurisdiction is presumed correct ; and it lies with the party 
 seeking to impeach it to plead and prove the facts going to invalidate it. Lee v. Cooke, 
 1 Wash. 307. Exemplifications of the judicial proceedings of a foreign country are pre- 
 
688 Which Party to prove the Issues. [ch. xi. 
 
 In a suit for tithes in the Spiritual Court, where the defendant 
 *815 *pleaded that the plaintiff had not read the thirty-nine articles, the 
 
 court called on the defendant to prove the fact, though a negative : 
 upon which he moved the Court of King's Bench for a prohibition ; but it 
 was refused, for the reason already stated. (1) In an action by the owner of 
 a ship against the defendants for putting on board a quantity of combustible 
 and dangerous articles, "without giving due notice thereof," the court 
 held, that it lay upon the plaintiff to prove this negative averment. (2) 
 
 Breach of contract. And the same principle will apply where one party 
 charges the other with a breach of contract. Thus, in an action upon a 
 contract to perform certain work in a workmanlike manner, the breach alleged 
 being that the defendant did not perform the work in a workmanlike man- 
 ner, but, on the contrary, performed it in a bad and unworkmanlike manner; 
 where the defendant pleaded that he did perform the work in a workman- 
 like manner : here the affirmative allegation is made by the defendant, yet 
 the burden of proof lies on the plaintiff; (3) for if no evidence were given on 
 either side, the defendant would be entitled to the verdict ; as the plaintiff, 
 by the form of his breach, admits that the defendant had performed the 
 work contracted to be done, though, as was alleged, it had been performed 
 in an unworkmanlike manner; and as it would not be assumed that the 
 work was badly executed, it is incumbent on the plaintiff to prove that alle- 
 gation. If, on the other hand the breach had been that the defendant had 
 
 Bumed correct ; if incorrect, the oraiM pro5ai7ic?i lies upon the party opposing their intro- 
 duction as evidence. Woodbridge v. Austin, 3 Tyl. Rep. 364, 366. In Massachusetts, 
 where a field driver, chosen at an annual town meeting, was sued in trespass for taking 
 cattle found going at large without a keeper, and impounding the same, it was held that 
 such field driver was riot bound to produce a record of a vote of the town, prescribing the 
 time and manner of notifying town irieetings, but that the notification would be presumed 
 legal until the plaintiff should prove the contrary ; or that the notice was so unreasona- 
 able as to raise a presumption of fraud on the part of those by whom the meeting was 
 called. Qilmore v. Holt et al., 4 Pick. Eep. 358. In New York, where an objection 
 was taken to the competency of a witness on the ground of his having been convicted of 
 felony, and it was shown that the record of conviction was destroyed, parol evidence was 
 held inadmissible, inasmuch as the transcript required by 1 R. L. 463 (K. & R.), to be sent 
 to the Court of Exchequer, was the next best evidence ; and it must be presumed that the 
 district attorney had done his dutv, and that the transcript had been duly filed by him. 
 Hilts V. Colvin, 14 John. Rep. 183. 
 
 (In an action against the sheriff for taking goods, the property of plaintiff, under exe- 
 cution against another person, the burden of proving title rests upon the plaintiff where 
 the goods are found and levied upon in the possession of the defendant in the execution ; 
 if not found in his possession the officer is bound to show title in such defendant. This 
 is on the ground ihat possession is evidence of title, and must be overcome by the party 
 who asserts it to be in another. Merritt v. Lyon, 3 Barb. 110 ; Morris v. Danielson, 3 Hill, 
 168. Where the defendant relies upon a bankrupt discharge, the onus of proving that 
 the plaintiff's debt arose out of a defalcation of the defendant in a fiduciary capacity, is 
 on the plaintiff, though the defendant has in his plea averred that the debt was not of 
 that character. Prima /aciV tlie certificate discharges the bankrupt from all his debts. 
 Sherwood v. Mitchell, 4 Denio, 435. The party having an election to discontinue or ter- 
 minate a contract, and claiming the benefit of a termination, is bound to show that he has 
 made his election by some positive act : Watts v. GJarcia, 40 Barb. 656.) 
 
 See, also, ante, note 177, where a considerable number of cases are cited illustrative of 
 the same principle. 
 
 (1) Monke v. Butler, 1 Roll. Rep. 88 ; cited bv Lord EUonbbrough, C. J., 8 East, 199 ; 
 Powell V. Millburn, 2 W. Bl. 851 ; S. C, 3 Wils! 355. See also Lord Halifax's Case, B. 
 N. P. 398 ; R. v. Combs, Comb. 57 ; Gilb. Ev. 133 ; R. v. Hawkins, 10 East, 3 11, as to not 
 taking the sacrament. 
 
 f3) Williams v. E. I. Company, 3 East, 193, 199. 
 
 (3) Amos V. Hughes, 1 Mo. & R. 464. In this case, as in most instances at Nisi Prius, 
 the struggle was as to which party was entitled, to begin, in order to have the advantage 
 of a reply, in case the other party should call witnesses ; the right to begin, however, is 
 in point of fact an obligation, the real question always being upon which party tlie burden 
 of proof is first thrown. For an illustration of the principle stated in the text, see Dykers 
 V. Townsend, 34 N. Y. 57, and Kinsman v. N. Y. Mutual Ins. Co. 5 Bosw. 460. 
 
CH. XI.] Allegation involving a Negative. 689 
 
 not performed the work at all, and the defendant had pleaded that he 
 had performed the work, the burden of proof would have been shifted upon 
 the defendant ; for if no evidence had been given of the performance of the 
 work, the plaintiff would have,been entitled to the verdict. (I) 
 
 Sreach of covenant stated negatively. And in an action of covenant 
 against a lessee, where the breach is, in the language of the covenant, that 
 the defendant did not leave the premises well repaired at tJie end of the 
 term, the proof of the breach lies upon the plaintiff: (2) this breach, 
 *816 though in terms it involves a negative, *admits of as easy proof a^ if 
 it had been expressed in the affirmative. So, where there was a cove- 
 nant in a lease that the tenant should insure in some office in or near London, 
 and the landlord insisted upon a forfeiture of the lease by reason of a breach 
 of this covenant, it was held, that he must prove the omission to insure, as 
 the law would not presume that the tenant had not satisfied the terms of the 
 covenant. (3) If the landlord had wished to be relieved from this negative 
 proof, he might have inserted a clause to that effect in the lease. (4) 
 
 In an action for a loss occasioned by barratry in the master of a ship, 
 where it was objected by the defendant, that the plaintiff ought to prove 
 that the master was not also the owner or freighter, and that he did not act 
 under the direction of the person who was so (in which case barratry 
 could not be committed), the court held, that if the master was owner or 
 freighter, or acted under the direction of the owner, the burden of proving 
 that fact lay on the defendant. (5) "It was not incumbent on the 
 
 (1) See 1 Mo. & R. 465, note by the reporters. 
 
 (3) Soward v. Leggatt, 7 C. & P. 613. 
 
 Note 232.— There are many negative propositions which admit of easy and certain 
 proof; for instance, that a man was not at a given place; this may be established by 
 showing that he was at another place, so distant as to render it impossible to suppose ha 
 was at both ; and in this and similar cases, the difficulty of showing a negative will have 
 little or no weight in determining upon whom the onus lies. See Dranguet et al v. Prud- 
 homme, 3 Miller's Lou. Kep. 184. In Wilmington v. Burlington (4 Pick. 174), the court 
 say, " It was incumbent on the plaintiffs to show, first, that the father had not a settle- 
 ment within the commonwealth ; for though this is a negative in appearance, yet it is proved 
 by showing where he resided." In an action, of covenant of warranty of lands, if the 
 plaintiff have voluntarily yielded to a dispossession, he must show want of title in the 
 warrantor. But in case of eviction by force of a judgment, with notice of the suit to 
 the warrantor, the judgment vrill be plenary evidence, unless obtained by fraud. Hamil- 
 ton V. Cutts, 4 Mass. Rep. 349. Where one promised to indemnify another for doing a 
 particular act ; and the latter, on being sued for the act, gave a cognovit ; on a suit by 
 him against the former, upon the promise, it was held that the onus was upon the plain- 
 tiff, to show that the cognovit so given was not for too much. Stone v. Hooker, 9 Cowen's 
 Rep. 154. In this case Hamilton v. Cutis (supra) is stated fully by the court and approved. 
 In Lee v. Cooke (I Wash. Rep. 306), in an action of covenant for breach of warranty res- 
 pecting title to a slave, it was held incumbent on the defendant to plead and prove fraud 
 or collusion in the judgment of eviction, if he would avoid its effect, even where the plain- 
 tiff did not attempt to prove notice of the suit to the warrantors ; sed quere. See Blasdale 
 V. Babcnck, 1 John. Rep. 517 ; Barney v. Dewey, 13 Id. 334. In an action on a forthcoming 
 bond in Virginia, it was held, that it was not incumbent on the plaintiff to prove non- 
 performance, but that the onus lay with the defendant to show a delivery of the goods. 
 Nichols V. Fletcher, 1 Wash. Rep. 330. 
 
 (3) Doe d. Bridger v. Whitehead, 8 A. & E. 571. As to the proof of the non-communi- 
 cation of material facts on the effecting of an insurance, see Blkin v. Janson, 13 M. & W. 655. 
 
 (4) For further instances, see Osborn v. Thompson, 9 C. & P. 337 ; S. C, 3 Mo. & R. 354 ; 
 Cox V. Walker, cit. 9 0. & P. 339 ; Shilcock v. Passman, 7 Id. 391 : Smith v. Davies, Id. 
 807 ; Ridgway v. Ewbank, 3 Mo. & R. 317 ; Doe d. Caldecott v. Johnson, 7 M. & G. 1047 ; 
 Lambert v. Hall, 9 C. & P. 506. 
 
 (15) Ross V. Hunter, 4. T. R. 33, 38. 
 
 Note 323. — The law not merely requires proof from the party holding the affirmative, 
 because it is inipossible to prove the negative ; but because the negative does not admS 
 of the direct and simple proof, of which the affirmative is capable. Dranguet et al. v. 
 Prudhomme, 3 Miller's Lou. Rep. 83, 86. See post, note 234, and cases there cited. 
 Where, in Louisiana, a married woman sues to rescind her contract, on the ground that 
 she was not legally authorised by the parish judge, to make it, the onus is thrown on the 
 
 Voi- L 87 
 
690 Which Party to prove the Issues. [ch. xi. 
 
 party claiming the benefit of the contract. Dranguet et al. v. Prudhomme, 3 Miller's 
 *817 Lou. Kep. 74, 83. And if a person enter into *a contract to pay a sum of money, 
 
 with a condition that the contract is to be void on the happening of a particular 
 event ; in an action for the money, the onus of proving that such an event has happened 
 is on the defendant, if he would avoid the payment. 0ray v. Gardner et al., 17 Mass. Bep. 
 188. And see Perry v. Botsford ; Godefroy v. Jay ; Wilbur v. Turner ; Webster v. Lee ; 
 Hemenway v. Stone ; Hays v. Lusk, cited in the next preceding note. 
 
 Where the plaintiff in ejectment shows the original grantee to be within the exception 
 to the Statute ofj,Limitation8, proof that others deriving title from such grantee, are not 
 within the exception, is unnecessary on his side. If relied upon to defeat a recovery, the 
 proof must come from the defendant. Doe ex dem. Thompson v. Gibson, 3 Ham. Rep. 339. 
 Kees V. Smith (3 Starkie's N. P. C. 30), cited in the seventh edition of the text, was 
 followed by Lacon v. Higgins (3 Stark. Rep. 178), to the same practice, where the defendant 
 had pleaded coverture, without the general issue, in assumpsit for goods sold ; but in a 
 previous action for a similar cause, on a plea of non-joinder of one Cohen, and issue, the 
 plaintiff being allowed, according to the then practice, to begin, and it being insisted that 
 he should give all his testimony in respect to the non-joinder, thus replying by antici- 
 pation as in the other cases ; Abbott, C. J., said : " The plaintiff does not know who Cohen 
 is, except from the plea. He cannot meet the case till he is acquainted with it." The 
 answer, we apprehend, would apply generally where the plaintiff begins with the burden 
 of showing his wrong, his damages, or either ; and such, we venture to say, has been 
 generally deemed a sufficient answer in this country, beside the intrinsic difBcnlty of 
 meeting an affirmative plea by negative testimony, before any evidence has been presented 
 in support of that plea. It is farther evident,.that the course laid down in the text would, 
 in most instances, leave a great part of the plaintiff's evidence, thus given in advance, 
 unintelligible. Beside, it seems to us that Rees v. Smith stands directly overruled, or 
 much qualified, by the subsequent case of Browne v. Murray (Ryl. & Mood. N. P. Cas. 
 254). That was a case for a libel, with the general issue and a justification. Held, that if 
 the plaintiff (who was allowed to begin) would give evidence, in the first instance, in 
 reply to the justification, he might do so ; and then must give the whole of such evidence ; 
 but the plaintiff might wait for the evidence under the justification ; and then produce 
 such evidence in reply. 
 
 The slight innovations (they so appear to us) which have been made in circuit practice, 
 upon the ancient right of beginning the cause, have, perhaps, better subserved the great 
 purposes of a safe and speedy administration of justice. The parties have been, and still 
 are, generally governed by the orms prdbandi as indicated by the record ; the plaintiff 
 beginning, and having the right of reply, in all cases where the defendant's pleadings, or 
 any part of them, deny the whole or any part of the plaintiff's pleadings, so as to leave 
 any single affirmative allegation on his side to be established by proof Per Williams, J., 
 in Comstock v. Hadlyme, 8 Conn. Rep. 361, and the cases there cited ; per Parker, C. J., 
 in Brooks v. Barrett, 7 Pick. 99 ; Browne v. Murray, 1 Ry. & Mood. N. P. Cas. 254. On 
 the other hand, where the form of the defendant's pleadings is such as to admit all the 
 plaintiff's averments, or leave him nothing to prove, the defendant is to begin and close 
 the case. An instance is, where to a declaration in covenant, the defendant interposed 
 the single plea of performance (Scott v. Hull,8 Conn. Rep. 396, 303) ; or a plea of payment 
 to a declaration .upon a note. Id. 303, per Hosmer, J. 
 
 These propositions are in ordinary cases, sufficiently simple, and easily applied in prac- 
 tice. They are, however, not always so ; or, if so, plausible grounds have been started 
 for sometimes disregarding them. Thus, in avowry for rent arrear, the defendant stated 
 that he had demised rooms to C. at £35 a year, for which he distrained ; with four other 
 avowries, varying in the statement of tenancies. The plaintiffs pleaded three pleas in bar 
 to each avowry ; non tenuit, riens in mrrere, and thirdly, that C. had let other rooms to the 
 defendant at £43 a year ; and that it had been agreed between them that each rent should 
 be set off against the other, which would, in consequence, leave the balance against the 
 defendant. The defendant replied, denying this agreement. At the circuit, Scarlett, A. 
 G., for the defendant, insisted that the plea was merely saying riena in arrere; and beside, 
 in an agreement to set off rent against rent, both parties are actors. Lord "Tenterden, C. 
 J., said he could not distinguish between replevin and any other action. Scarlett said 
 that, in replevin, the plaintiff might always state something imaginary in a plea, which 
 the defendant must deny ; and so the plaintiff get the right to begin. Lord Tenterden, C. J.: 
 " If these plaintiffs prove the agreement as stated in the third plea, and that the rent there 
 
 mentioned is in arrear, there is an end of the action. I am afraid to make distinctions 
 *818 *in actions ; and if there is an affirmative on the plaintiff, I think he ought to begin." 
 
 And this was the course taken. Curtis v. Wheeler, 3 Carr. & Payne, 340 ; S. C, 
 1 Mood. & Malk, 493, In a subsequent caso, there were five cognizances for rent in arrear, 
 to which the plaintiff pleaded SHventeen negative ploas. The eighteenth plea was to the 
 five cognizances that the landlord and tenant had made an agreement, then abandoned 
 it and made another, which was the demise contained in the cognizances ; and this was 
 also abandoned. The niueteentli was similar to the eighteenth plea, except in averring 
 fraud in the second agreement. Replications denying the abandonment and the fraud. 
 
CH. XI.] Which Party to begin. 691 
 
 BoUard, B., said these pleas amounted very nearly to non tenuit; yet as, in point of form, 
 the afflrraative was on the plaintiff, he directed him to begin. Williams v. Thomas, 4 
 Carr. & Payne, 234. So on a plea of non-assumpsit to a declaration upon a promissory 
 note, though the defense turn on payment, the plaintiff sliall begin. Per Cur., in Brooks 
 V. Barrett, 7 Pick. 100. 
 
 Yet this right may be taken from the plaintiff, where the defendant will venture to give 
 him a whole prima facie case, even on the general issue. This was conceded in ejectment 
 by an heir. The defendant offered to admit that he was heir, and rely on a conveyance 
 from the ancestor, which carried the title out of him. It was agreed that if the defendant 
 would admit the seizin of the ancestor as well as the heirship, this would entitle him to 
 begin ; but he declining to do so, the plaintiff began. Doe ex dem. Tucker v. Tucker, 1 
 Mood. & Malk. 530. In trespass guare clausum fregit, the defendants pleaded, 1. Not 
 guilty ; 3. A right of common, and 3. A right of way. The replications took issue on all 
 these pleas, and new assigned as to the way. The defendants rejoined, taking issue on 
 the replications, but withdrawing their plea of not guilty as to the new assignment. Ona 
 record so framed, the learned reporters remark, that the defendants would have a right to 
 begin ; and they cite a case (Rees v. Rogers) to that effect, G(»: Lord Tenterdeu, C. J., on a 
 similar issue. Cross v. Johnson, 4 Mann. & Ryl. 290, in connection with note a. Id. 294, 
 295. On a plea of coverture to assumpsit for igoods sold, the defendant consenting to 
 admit the amount of the plaintiff's bill, was allowed to begin. Lacon v. Higgins, 3 Stark. 
 Rep. 176. (Upon non-assumpsit pleaded, the plaintiff holds the affirmative of the issue, 
 and the onus of making out a promise is upon him ; but he does not hold the affirmative 
 of every question that may be made under that issue. The defendant without at all con- 
 troverting the promise, may setup payment, release, accord and satisfaction, and other 
 matters of defense under the plea of non-assumpsit ; and when he does so, the burden of 
 proof is upon him, and he must establish his allegation by a preponderance of evidence. 
 Hallister v. Bender, 1 Hill, 150 ; decided in 1841, under old forms of pleading. In an 
 action of trover, where the plaintiff, a mechanic, seeks to avail himself of the benefit of the 
 exemption act, and sues the defendant for levying on and selling one of his tools or 
 implements of trade, the onus rests upon the plaintiff to prove that all his tools, including 
 that in suit, do not exceed in value the amount specified in the act ; Chambers v. Halsted, 
 Hill & Denio, 384 ; the same rule applies in respect to any and all articles claimed as 
 exempt property ; Dains v. Prosser, 33 Barb. 290 ; Tuttle v. Buck, 41 Barb. 417.) 
 
 But in trover directed by the vice-chancellor, to try a title, with an order that the 
 defendant should admit the finding and conversion, though the defendant offered to admit 
 a full prima facie case in the plaintiff, he was not allowed to begin ; for bad the vice-chan- 
 cellor intended such a course he would have directed him to declare and proceed as plain- 
 tiff. Turhervill v. Patrick, 4 Carr. & Payne, 557. . 
 
 As to the right of the defendant, he may begin upon a plea in justification of a libel, 
 there being no general issue, although the plaintiff hold one affirmative there, via: in 
 making out his damages. Cooper v. Wakley. 3 Carr. & Payne, 470 ; S. C, 1 Mood. & Malk. 
 248. So on a plea of a right of way to an action of trespass quare clausum fregit, though 
 the plea began with denying the force and arms, &c. Hodges v. Holder, 3 Campb. 366 ; 
 Jackson v. Hesketh, 3 Stark. Rep. 518, S. P. So under a justification of an assault to sup- 
 press a mutiny. Bedell v. Russell, Ry. & Mood. 293. So for a justification for taking 
 goods under proceedings upon a commission of bankruptcy. Cotton v. James, 3 Carr. & 
 Payne, 505; S. C, 1 Mood. & Malk. 273. So on a justification in trespass, though the 
 declaration allege special damage. Fish v. Travers, 3 Carr. & Payne, 578 ; per Lord Ten- 
 terden, C. J., in Fowler v. Coster, 1 Mood. & Malk. 342, 343. So on a plea of non-joinder 
 of a defendant, in an action by indorsee against acceptor. Fowler v. Coster, 1 M. & M. 
 341. And see a case before Bayley, J., York summer assizes, 1831, 4 Stark. Bv; 2 
 note 6, S. P. 
 
 Previous to the above more recent course of decision, the practice had fluctuated, some 
 decisions allowing the plaintiff to hold the affirmative and begin the case, whenever he 
 was put to prove unliquidated damages, although the defendant had met the case with a 
 mere affirmative plea ; as in assumpsit, against a money scrivener for negligence, who had 
 pleaded the non-joinder of another, upon which issue was joined. Roby v. Howard, Oor. 
 Abbott, C. J., 2 Stark. Rep. 555. Again, on a similar plea in assumpsit for goods sold, the 
 plaintiff was allowed to show the amount of goods, and reserve his proof, as to the non- 
 joinder, till the defendant went through with his case. Stansfield v. Levy, 3 Stark. Rep. 
 8. But on a plea of coverture, to a like action. Lord Abbott, C. J., told him thq(; if he 
 went into his case, as he had a right to do, in order to prove his damages, he must also 
 introduce all his proof by anticipation to oppose the plea of coverture. Lacon v. Higgins, 
 3 Stark. 178. Other earlier cases held, on the contrary, that the defendant should 
 *819 begin, as we have seen in Hodges v. Holder, and Jackson v. Hesketh ; though *a still 
 earlier case is sometimes quoted as sustaining Roby v. Howard. See Young v. 
 Baimer, 1 Esp. Rep. 103 ; no question as to the practice was raised. 
 
 The cases having thus conflicted on the question, when Fowler v. Coster (supra) came 
 to be tried, Lord Tenterden, C. J., took occasion to remark, •' It is certainly of importance 
 that there should be a distinct general rule ; but that rule need not be the same for every 
 
692 Which Party to prove the Issues. [ch. xi. 
 
 case, if it be sucli that its application is clear. No rule, probably, can be free from occa- 
 sional inconvenience ; but I think this is sufficiently general, and on the whole the most 
 convenient ; that wherever it appears on the record, or by the statement of the counsel 
 engaged, that there is really no dispute about the sum to be recovered, but the damages 
 are either nominal or else mere matter of computation, then, if the affirmative of the 
 issue is on the defendant, he is entitled to begin. Here it is not pretended that there is 
 aiiy cause of uction. except that on the bills of exchange ; I think, therefore, that the 
 defendant is entitled to begin." When, however, his Lordship came to the case of Cotton 
 V. James, he admitted that he found the practice general that the defendant should begin 
 whenever he held the affirmative on the record ; though he evidently was disatisfied wiih 
 the practice as the least convenient, and therefore wanting the correct principle to support 
 it. The learaed reporters say, " This case seems to complete the series of those by which 
 the doctrine that the plaintiff is entitled to begin where he has to prove damages sus- 
 tained, have been, far the present, overruled." They, however, consider it doubtful whether 
 the present doctrine will long continue, and enter into an elaborate vindication of the old 
 practice as more convenient, more satisfactory to the bar, as avoiding all chance of a 
 defendant's manoeuvring for the general reply, on the question of damages, by putting 
 a polorably affirmative defense on the record, and requiring each party to close his case at 
 once. 1 Mood. & Malk. 378 to 381. The American (or, speaking according to our more 
 limited knowledge, the New York) lawyer would doubtless prefer the more modern 
 English practice, from the force of habit. 
 
 In proceedings where no common-law record comes into the case, and where, of coarse, 
 the onut probancK is not technically presented, the courts still conform analogically, and, 
 as it were, upon a mental record, to the principles which govern at common law. Thus, 
 on an appeal from a court of probate, which decides for a will, the appellee shall open 
 and cTose the case, because such would be the course on a declaration at law founded upon 
 rights conferred by the will ; and, beside, the onus of proof as to the execution of the will 
 lies upon him who affirms that a will was made. Comstock v. Hadlyme, 8 Conn, Rep. 
 254 ; Phelps v. Hartwell, 1 Mass. Sep. 71 ; Buckminster v. Perry, 4 Mass. Rep. 593. 
 Whereas, for the same reason, if the appeal be from a decree avoiding the will, the appel- 
 lant shall begin. Brooks v. Barrett, 7 Pick. 94. 
 
 But in all these cases the judge exercises the right to make an exception, where any- 
 thing of a peculiar character occurring on the trial, demands such a course as the most 
 convenient. Thus, in the celebrated case of Goodtitle ex dem. Revett v. Braham (4 T. 
 E. 497, tried at bar), the court said, if the heir (the lessor of the plaintiff) proved his 
 pedigree and stopped, when the onus changed to the defendant, who set np a new case, he 
 had the right to a general reply. The plaintiff's pedigree, on being stated, was admitted ; 
 and the defendant's case tijrned on a will, which the jury finally found to be a forgery. 
 So, ill another case, the defendants, in an action for money lent, pleaded in abatement the 
 non-joinder of one hundred and sixty-three persons. The plaintiff proposed to show that 
 the money was lent on the express individual credit of the defendants, he expressly 
 refusing to lend on the credit of the others, who, with the defendants, were a club. Lord 
 Tenterden, C. J., allowed the plaintiff, on this statement, to begin; which he did, and had 
 a verdict upon the case thus especially made out, the defendant not being able to overcome 
 it. He offered one of the club to contradict it ; but he being interested, and not released, 
 the attempt proved unavailing. Hare v. Munn, 1 Mood. & Malk. 241, 343, note a. Speak- 
 ing of this case afterwards, when the same question was started before him in Fowler v. 
 Coster (ut supra), Lord Tenterden said, "it was a peculiar case; and I thought the 
 evidence which the counsel for the plaintiff opened was of such a nature, that it would be 
 much more convenient to take it in the first instance. The counsel for the defendant did 
 not object ; and it was accordingly done ; but 1 did not then lay down any general rule." 
 
 It is obvious, on the whole, that the right to begin and reply is a matter of discretion 
 resting with the judge at the circuit, "it is a matter of practice, founded indeed upon 
 the principle, that he who takes the affirmative, assumes the burden of proof; yet where 
 there are several issues, or the burden of proof changes, as it frequently does in the course 
 of the trial, as much discretion must be allowed to tlie judge, as in case of a motion for a 
 continuance, or for a new trial ; and a mistake here is no more a ground for a new trial 
 than in those cases." Per Williams, J., in Comstock v. Hadlyme, 8 Conn. Rep. 261. And 
 with him agrees Hosmer, C. J., in the subsequent case of Scott v. Hull, 8 Conn. Rep. 296, 
 803. The contrary is said in Brooks v. Barrett {supra), to have been adjudged in Massa- 
 chusette. 7 Pick. 98. We have seen, however, that the matter is otherwise treated in 
 England, and held expressly otherwise in Connecticut ; and there can be no doubt that an 
 occasional departure from the general rule is often quite useful. By anticipating the 
 proof of one party, in Hare v. Munn (supra), a long and idle course of testimony was 
 probably prevented by a moment's examination on the part of the plaintiff; a courae of 
 testimony, too, which would otherwise have been prima facie applicable; and, in the 
 usual order, therefore, entitled to a hearing. The editor has often witnessed this incon- 
 venience in actions of ejectment. The defendant, perhaps, spends half a day in examining 
 witnesses to make out an an adverse possession, or a practical location, which is then 
 overturned in a moment by showing that he is a squatter, or has taken as tenant, or he, 
 
CH. XI.] Which Party to begin. 693 
 
 *820 *plaintiff," said Buller, J., "to prove that the captain was not the 
 owner, for that would be calling on him to prove a negative ; and 
 if the captain were not the owner, it is immaterial who was : proof of 
 that fact, which operates in discharge of the other party, lies upon him." 
 
 Vdhie given for bill of exchange. In an action by the indorsee against 
 the acceptor of a bill of exchange, where the defendant pleaded that he 
 accepted the bill for the accommodation of the drawer and without consid- 
 eration, and that the di-awer indorsed to the plaintiff without consideration ; 
 and the plaintiff replied that the drawer indorsed to him for good considera- 
 tion ; it was held, that it was not incumbent upon the plaintiff to begin and 
 to prove that he gave value for the bill ;(l) as in the case of an accommodar 
 tion bill, the presumption of law is that the holder has given value for it ; 
 but the rule is otherwise, where the title of the holder is impeached upon 
 the ground that the bill had been improperly obtained, from the acceptor, — 
 as, if it had been obtained by fraud or duress, or had been stolen or lost. (2) 
 
 or some one under whom he claims, has recognized the plaintiff's title, or done some act 
 decisive of the location. The opening upon, and try ng the ehort question in the first 
 instance before the jury, would save delay and expense to both parties ; for if the preli- 
 minary proof so heard would make the testimony on the other side obviously inapplicable 
 or utterly unavailable, it then would cease to be competent. Hundreds of such cases 
 might be adduced, to each of which, hours, if not days, have been unprofitably devoted. 
 It will readily occur to the professional reader, that not only ejectment, but any other 
 case may come within the same suggestion. A party goes on and proves a long account, 
 to which there is known to be a decisive answer by a release, a payment, or an accounting 
 and balance struck ; a trial and determination, upon the short point of defence Sgainst 
 the account might save several days' examinatien before the referees. 
 
 (In an action for libel, the plaintifl' holds the afiBrmative and has the right to be^n, 
 notwithstanding the defendant's answer admits the publication ; the orderly course of 
 proceeding makes it proper that the plaintiff before resting should not only establish an 
 apparent right to recover some damages, but should give all the evidence on which he 
 relies to affect the amount of the reqpvery. And where a part of the alleged libel appears 
 to be privileged, it being essential to the plaintiff's right to recover to prove malice or bad 
 faith in publishing it, the burden of proof to establish the affirmative of the issue rests 
 with the plaintiff. Fry v. Bennett, 3 Bosw. 200, 232. Express malice may be proved in 
 either case ; S. C. 28 N. T. 324, 329.' Littlejohn v. Greeley, 13 Abbot.' s Pr. 41 45. An 
 obscure phrase in a libel — " the Swiss Gallows" may be explained by parol, (a justification 
 must be supported by proof as broad as the charge). Watcher v. Quenzer, 29 N. Y, 547. 
 In actions upon contract, e. g. upon a promissory note, if the answer admits the allega- 
 tions of the complaint and sets up the defence of usury, so that upon the issue plaintiff is 
 entitled to a verdict without giving any evidence, the onus probandi is upon the defendant 
 and he has the right to begin, to open his defense to the jury, and to reply : and a denial 
 of this right entitles him to a new trial. See Huntington v. Conkey, 38 Barb, 218, and 
 the authorities there cited. After reviewing the cases the court per E^ Darwin Smith J., 
 deduces fron^ them these conclusions. 
 
 1st. The plaintiff in all cases where the damages are unliquidated, has the right to 
 open the case to the jury and have the reply. 
 
 2d. Whenever the plaintiff has any thing to prove, on the question of damages, or 
 otherwise, he has the right to begin. 
 
 3d. In other cases, where the damages are liquidated or depend upon mere calculation 
 
 as the casting of interestj the party holding the affirmative of the issue has the right to 
 begin. 
 
 4th. The affirmative of the issue, in such cases, means the affirmative in substance, and 
 not in form, and upon the whole record. 
 
 5th. That the denial of this right to begin, to the party entitled to it, and claiming it 
 at the proper time, is error for which a new trial will be granted ; unless the court can see 
 clearly that no injury or injustice resulted from the erroneous decision. Id. 228. Carter 
 V. Jones, Carr. & Payne, 64 ; Young v. Highland, 9 Grat an, 16 ; 16 Ohio R. 330 ; 5 Adol. 
 & Ellis, 447, Mercer v. Whall ; Caskey v. Lewis, 15 Ken. Rep. ; Rohun v. Hanson, 11 Cush. 
 44; Harris v. Kent, 11 lud. 126; Benham v. New, 2 Cal. R. 408; Geach v. Ingersol, 14 
 Mees. & Welsh. 95 ; Ashley v. Bates, 15 Id. 589 ; HoUister v. Bender, supra, p. 818. As to 
 what may be regarded as cumulative evidence, see Powell v. Jones, 42 Barb. 24.) 
 
 (1) Mills V. Barber, 1 M. & W. 425. See also Whittaker v. Edmunds, 1 Mo. & R. 3C6 
 
 (2) See 1 M. & W. 432. See also Lewis v. Parker, 4 A. & E. 838 ; Jacob v. Hungate, 1 
 Moi & R. 445; Brown v. Philpot, 3 Id. 285; Smith v. Martin. Car. & M. 58; -Bingham 'v 
 Stanley, 2 Q. B. 117 ; Bailey v. Bidwell, 18 M. & W. 73 ; Masters v. Barretts, 2 C. & K. 7lf,' 
 
6^4 Which Party to prove the Issues. [cu. xi. 
 
 Where offense, involving negative, created by statute. Generally speaking, 
 where an offense is created by statute, and negatives are used in the 
 *821 enacting part descriptive of offense, those negatives *mustl)e alleged 
 in an ilidictment or information for the offense, and must be proved, 
 for the negative there forms part of the offense ; but it is different where the 
 negative comes by way of proviso in the statute, in which case it must be 
 insisted on by way of defense by the accused. (1) Thus, upon an indictment 
 under the statute 42 Geo. Ill, c. 107, § 1,(2) which made it felony to course 
 deer on an inclosed ground, " without the consent of the owner of the deer ;" 
 or on the statute 6 Geo. Ill, c. 36,(3) which made it felony to cut down trees 
 " without the consent of the owner ;" it was held, that it ought to appear, 
 from the evidence produced on the part of the prosecution, that the owner 
 had not given his consent. (4) 
 
 But this rule, as to the necessity of proving a negative, must be taken 
 subject to another, n*amely, that the burden of proof lies on the person who 
 has to support his case by proof of a fact which lies more peculiarly within 
 his own knowledge, and of which he is supposed to be cognizant. (5) Thus, 
 in an action for Penalties under the Old Game Laws, though the plaintiff 
 must aver, in order to bring the defendant within the act, that he was 
 ]^t duly qualified, yet it is not necessary to disprove his qualification, but 
 it will be for the defendant, if he can, to prove himself qualified. (6) And 
 the same rule of evidence applies to proceedings on informations before 
 magistrates : a conviction, therefore,^ which specifically negatives the sev- 
 eral (qualifications mentioned in the statute, is sufiicient without stating 
 evidence to negative those qualifications. (7) If such negative evidence 
 were necessary to support the information, it would scarcely be possible 
 in any case to convict, in consequenoe ot the great number of distinct 
 heads of qualification which were enumerated in the statute. On the 
 other hand, all the qualifications specified were peculiarly within the 
 knowledge of the qualified person. If he were entitled to any svich estate 
 as the statute requii-ed, he might prove it by his title deeds, or by the receipt 
 of the rents and profits ; or if he were the son and heir apparent, or servant • 
 tp any lord or lady of a manor, and appointed to kill game, that would 
 *822 be a good defense. All these qualifications were peculiarly *within the 
 knowledge of the party himself; but the prosecutor had probably no 
 means of proving a disqualification. (8) 
 
 (James v. Chalmers, 2 Selden R. 209, and cases cited in Edwai-ds on Bills & Notes, 
 686-689.) 
 (1) R. V. Jarvis, 1 East, 644, n. See also by Lord Kenyon, C, J., in R. v. Stone, 1 East, 650. 
 
 (3) Repealed by 7 & 8 Geo. IV, c. 27. See c. 39, which contains other provisions as to 
 the offense. 
 
 (8) Repealed by 7 & 8 Geo. IV, c. 27. See c. 30, which contains other provisions as to 
 the offense. 
 
 (4) R. V. Allen, 1 Moo. C. C. 154, overruling- R. v. Rogers, 2 Camp. 654, where, npon an 
 indictment for coursing deer, it was held to be necessary to call the owner to negative his 
 consent. See also R. v. Hazy, 3 C. & P. 458 ; R. v. Mailinson, 2 Burr. 679 ; R. v. Corden, 
 4 Id. 3379. 
 
 ■ (5) By Holroyd, J., in R. v. Burdett, 4 B. & A. 140. See also by Ashurst, J., in Dickson 
 v. Evans, 6 T. R. 57, 60. And see ;r Price, 257 ; 5 M. & S. 211 ; 1 B. & C. 150 ; 3 B. & C. 
 243. But see Doe d. Bridger v. Whitehead, 8 A. & E. 571 ; Siipra, p. 816. 
 
 (6) By Lord Mansfield, C. J., in Spieres v. Parker, 1 T. R. 144 ; by Heath, J., in Jelfs v. 
 Ballard, 1 B. & P. 408 ; by Chnmbre, J., in Frontine v. Fi-ost, 8 B. & P. 307. See also B. v. 
 gtone, I East, 650. (See Sherwood v. Mitchell, 4 Donio, 435). 
 
 (7) B. v. Turner, 5 M. & S. 206. 
 
 (8) By the new Game Act (1 & 2 Wm. IV. c. 32, § 42), it is expressly enacted, "that it 
 shall not be. necessary in any proceeding against any pei-son wider that act, to negative 
 by evidence any certificate, license, &c., or other matter of exception or defense ; but that 
 the party seeking to avail himself of any such certificate, &c., shall be bound to prove tho 
 same." There are similar provisions in various modern statutes. As to proof of an 
 ftpothecary's certificate, see Apoth. Co. v. Bentley, R. & M. 159. 
 
 Note 224.— .Upon the question of jurisdiction, where the prooeedings of a court of gen- 
 
CH. XI.] When Nisgative to be proved. 695 
 
 eral j urisdiction are alleged, the law presumes jurisdiction, and the onus of proving the 
 contrary lies with the party who undertakes to question it. Lister v. Wright, 3 Hill, 320. 
 But with respect to courts of limited and special jurisdiction, it is widely different ; nothing 
 is presumed in favor of their jurisdiction, and the party seeking to derive advantage from 
 their proceedings is bound to show jurisdiction affirmatively. Stanian v. Davies 2 Ld. 
 Raym. 796 ; Peacock v. Bell, 1 Saund. 73, 74 ; Winford v. Powell, 3 Ld. Raym. 1810 ; Harvey 
 V. Holland, T. Jones' Rep. 103 ; S. C, 3 Keble, 677 ; Berkley v. Paine, 1 Ventr. R. 28 ; 
 Wallis V. Squire, T. Jones' Rep. 330 ; 1 Sid. 95 ; Littlebury v. Wright, 1 Ld. Raym. 63 ; 
 Ladbroke v. Giles et al., Willes' Rep. 199 ; SoUers v. Lawrence et al., Id. 413 ; Moravia v. 
 Sloper, Id. 30; Morse v. James et. al.. Id. 123; Mills v. Martin, 19 John. Rep. 7, 33, &c.; 
 Bowman v. Russ, 6 Cowen's Rep. 334 ; Adkins v. Brewer, 8" Id. 206 ; M'Clung v. Ross, 5 
 Wheat. 116; Morgan v. Dyer, 10 John. Rep. 116; Wyman v. Mitchell, 1 Cowen's Rep. 
 316. The foregoing authorities clearly show, however, that after jurisdiction has once 
 been established, every intendment is made in favor of the regularity and validity of the 
 proceedings ; and it would follow, therefore, that after proof of jurisdiction has once been 
 introduced by the party asserting the proceedings or judgment of an inferior court, the 
 onus of impeaching them devolves upon the other side. By pleading non-assumpsit to 
 an action brought in a city court, wherein the plaintiflF avers that his cause of action 
 arose within the limits of the city, the defendant traverses such averment, and the Ijurden 
 of proving it devolves upon the plaintiff. Maples v. Wightman, 4 Conn. Rep. 376. Vide 
 Wooster v. Parsons, Kirby's Rep. 37. 
 
 In Virginia, where a person visibly appearing to be white or an Indian is claimed as a 
 slave, the presumption arising from his color is, that he is free ; and the onus in such case 
 lies upon the claimant, to show that he is a slave. But where the person claimed appears 
 from external characteristics to be a negro, the contrary presumption prevails, and he 
 must show his right to freedom. Hudgins v. Wrights, 1 Hen. & Munf. 133. And the 
 court and jury may, in such instance, judge from inspection, Id.; Hook v. Paige, 3 Munf. 
 Rep. 379. See also ante, note 177, in connection with Fox v. Lambson, 3 Halst. 375 ; Gib- 
 bons V. Morse, Id. 353 ; and Scott v. Williams, 1 Dev. 336, and ante, note 190. 
 
 In cases where the negative does not admit of direct proof, or the facts lie more imme- 
 diately within the knowledge of the defendant, he is put to his proof of the affirmative : 
 and where the general facts constituting a forfeiture within a statute are proved, and 
 there are exceptions to its operation in particular cases, the better opinion is that the party 
 who would avail himself of the exception must prove it ; although, from the forms of 
 pleading, it may be necessary for the other party to negative every exception in the indict- 
 ment or information. Such negative allegation is, in such cases, to be repelled by affirma- 
 tive proof on the other side. Accordingly, in a proceeding in rem against certain goods, 
 under the acts of Congress of 1809 and 1814, which, together, prohibit all importations 
 of goods from British ports, except importations in neutral vessels, it was held incumbent 
 on the defendant to prove that the vessel was neutral, if he would avail himself of the 
 exception contained in the act of 1814. United States v. Hayward, 3 Gallis. Rep. 485, 
 498, 499, 500. Semble, however, that if the charge against the defendants consisted in a 
 criminal neglect of duty, it would lie on the plaintiffs to negative the exception, not only 
 in their pleading, but by proof on the trial. Id. And see ante, note 331. But the court 
 say, in this case, " the charge was not against the defendant personally or of a criminal 
 neglect of dnty, but against the goods only, of a positive act, to wit, an illegal importation." 
 Id. 499, 500. In an action against a carrier for loss happening at sea, by the vessel found- 
 ering, he must prove seaworthiness, before he is permitted to excuse himself on the ground 
 of its being the act of God. If the facts of the case are such that the loss may be fairly 
 attributed to inevitable accident, and the owner alleges that the vessel was not seaworthy 
 at her departure, the onus probandi lies on him, and not upon the carrier. Bell v. Reed 
 et al., 4 Binn. Rep. 137. In an action for a penalty, under 55 Geo. Ill, c. 194, against a 
 physician for practicing " without having obtained such certificate as by the said act ia 
 required ;" it was held that the onus, as to the certificate, lay with the defendant. The 
 Apothecaries Company v. Bentley, Ry. & Mood. N. P. Rep. 159 ; Sheldon v. Clark, 1 John. 
 Hep. 513, S. P., in a penal action against a physician for practicing mthout license. So on 
 the trial of an indictment for selling spirituous liquors without license. Gearing v. The 
 State, 1 M'Cord, 573, 574. 
 
 (In actions for penalty given by statute for selling strong or spirituous liquors without 
 license, thougli the plaintiff must aver that the defendant sold without license, he need not 
 prove negatively that the defendant was not licensed, that being a matter peculiarly 
 within his knowledge. Potter v. Deyo, l9 Wend. 361 ; 4 E. D. Smith, 143, 148 ; People v. 
 Brooks, 4 Denio, 469. In cases where the negative charged consists of a criminal neg- 
 lect of duty, and where the law presumes innocence, the onus rests upon the plaintiff. 
 Williams v. East India Co., 3 East, 193 ; Rex v. Rogers, 2 Campb. 654. 
 
 In an action by the lessor to recover possession of demised premises on the ground that 
 the defendant, the lessee, had broken a covenant in the lease not to underlet without 
 plaintiff's consent, the defendant in his answer admitted the underletting, denying only 
 that it was without the consent of the plaintiff; and the court held that the burden of 
 proving plaintiff's consent rested on the defendant. Lawrence v. Williams, 1 Duer, 585: 
 
696 -^c' alleged in Defense. [ch. xr. 
 
 *823 Fact Alleged in Defense. Although, in general, it is necessary for 
 a party who brings an action to prove all the material facts which he 
 alleges in support of his claim, yet where the defendant pleads a fact within 
 his own knowledge in discharge of himself, and the plaintiff still insists on 
 the defendant's liability, alleging the same fact in his replication, there the 
 burden of the proof lies on the defendant, not upon the plaintiff. Thus, in 
 an action of assumpsit, where the defendant pleaded infancy, and the plaintiff 
 replied that " the defendant, after he had attained his full age, ratified and 
 confirmed the promise an^ undertaking," the court held, that the mere proof 
 of a promise to pay was sufficient on the part of the plaintiff; and that it 
 was for the defendant to prove the personal incapacity to contract, on 
 which he grounded his defense, and which lay peculiarly within his own 
 knowledge. (1) 
 
 On a trial for bigamy, the register of the first marriage being produced, 
 which stated the marriage to be by license, without stating it to be by con- 
 sent of parents or guardians, the prisoner in his defense proved that he was 
 an infant at the time of the marriage ; and it was held that this 
 *824 *made it necessary on the part of the prosecution to give some 
 evidence of the consent required by the Marriage Act.(2) Any 
 subsequent countenance given by the parents or guardians, or other circum- 
 stances of a similar kind, might afford ground for presuming the necessary 
 consent. (3) 
 
 A question very often arises at the trial as to which party is entitled to 
 begin ; and since the new rules of pleading this question has been more 
 frequently discussed than formerly ; and there have been several decisions 
 upon the point. But although the question mainly depends upon the rule 
 
 Where the vendor brings an action to recover damages against tlie defendant for refusing 
 to receive and pay for stock, and the defendant alleges that plaintiff did not own and was 
 not authorised to sell that amount of stock, thus rendering the contract illegal, the onus 
 rests upon the defendaiit to prove the negative so alleged. Dykers v. Townsend, 24 N. Y. 57. 
 
 In a recent case in the Court ot Appeals, Fleming v. The People, it was held, Oiief 
 Justice Denio reviewing the authorities on the subject, that in an Indictment for bigamy 
 it is not necessary to negative the exceptions in the statute defining the offense ; that in 
 pleading and in proof it lies upon the defendant to bring himself within the exceptions ; 
 and that prima facie the fact of marriage, in the form of a religious denomination, embraces 
 or implies the requisite assent. 27 N. Y. 339.) 
 
 The rule, however, that the onus is on the party within whose peculiar means of 
 information the fact lies, is not without its exceptions. Thus in ejectment, where a good 
 title was shown in the lessor of the plaintiff, and the defendant, to show title out of the 
 plaintiff, put in a deed from such lessor, to certain third persons, containing several excep- 
 tions or reservations; held that the burden of jiroving that the land in question was not 
 within any of the excepting clauses, lay with the defendant. Greanleaf's lessee v. Birth, 
 6 Peters' Rep. .303. Marshall, Ch. J., dissented from the doctrine established by this case, 
 " because he understood it to impose on the defendant the necessity of proving a' negative ; 
 and because the fact was within the knowledge of the plaintiff and not of the defendant." 
 Id. 315. Further, see Clark's lessee et al. v. Courtney et al., 5 Peters' Rep. 819. In 
 Hawkins v. Barney's lessee (5 Peters' Rep. 457, 469), it was decided that when the plaintiff's 
 title, as exhibited by himself, contains an exception, and sliows he has conveyed a part, 
 and it is uncertain whether the defendants are in possession of the land not" conveyed, 
 the onus to prove the defendant on the ungranted part is on the plaintiff. See Guthrie v. 
 Lewis's devisees, 1 Monroe, 143. 
 
 (1) Borthwick v. Carruthers, 1 T. E. 048. See also Hartley v. Wharton, 11 A. & E. 394. 
 Bigelow V. Grannis, 4 Hill, 206 ; Bay v.Gann, 1 Denio, 108. 
 
 Ndtb 235.— And where the plaintiff predicates his title to lands, upon a deed executed 
 by Xvio femes covert, with their husbands, the presumption is that they were of age ; and 
 il the defendant would avail himself of theirinfancy, he must prove it. Lessee of Battin 
 V. Bigelow, Peters' C. C. Rep. 453. See Sherman v. Garfield, 1 Denio, 329-. The plaintiff 
 must, however, show a valid conveyance under the statute. Martin v. Dwelly, 6 Wend. 9 ; 
 Knowles v. McCamly, 10 Paige, 843. 
 
 (2^ R. V. Butler, R. & R. C. C. 61. 
 
 (8) Ibid, in note. As to the evidence requisite to show illegitimacy, see St. George 
 (Parish) v. St. Margaret (Parish), 1 Salk. 128. 
 
cp. XII.J The Substance only of the Issue needs be proved. 697 
 
 relating to the burden of proof, yet it appears to be rather dependent upon 
 a rule of practice at the trial, than, strictly speaking, upon a rule of -evi- 
 dence. For this reason, it will not be entertained in the present work.(l) 
 
 CHAPTER XII. 
 
 OF THE ETTLE THAT THE SUBSTANCE ONLY OP THE ISSUE NEEDS BE PROVED. 
 
 Another general rule is, that the substance only of the issue needs be 
 proved. This is founded on the principles of good sense and justice. If 
 a party prove the substance of the issue, he has proved a substantial ground 
 of action, and is entitled to his remedy. He will not be obliged to prove 
 immaterial averments, which might be expunged from the record without 
 affecting his right to recover. Such averments serve only to incumber the 
 record ; and the proof of them would be as immaterial as the averments 
 themselves. 
 
 It is a general principle of evidence, that all the material facts alleged in 
 the declaration, which are put in issue, must be established by legal 
 proof (2) Another principle is, that the nature and extent of the 
 *825 proof *will depend upon the manner in which the alleged facts are 
 introduced ; allegations which are merely matters of inducement, do 
 not require such strict proof as those which are precisely put in issue 
 between the parties. (3) Evidence, as Lord Mansfield used frequently to 
 observe, is always to be taken with reference to the subject matter to 
 which it is applied, and with reference to the person against whom it is used. 
 
 There are a great variety of examples, both in civil and criminal cases, 
 which might be cited in illustration of the rule now under discussion. 
 The object in the present chapter will be to make a selection of such ex- 
 amples as appear most generally useful: the nature of material and 
 immaterial averments, and the doctrine of variances, will be also here 
 considered. * 
 
 1. Examples in civil cases. 
 
 In an action on a bond, if the defendant plead solvit ad diem, the issue 
 will be maintained by proof of payment before the appointed day; and 
 
 (1) See supra, p. 815, n. 3, and p. 820. 
 
 (3) Note 226. — The rule stated in the text, is one upon which all the authorities will 
 be found to unite, whatever diversity of opinion may occasionally be found to prevail in 
 regard to its application. It by no means requires, however, that all the matters stated 
 in the pleadings should be proved exactly as they are alleged ; for this would be not only 
 inconvenient, to an extreme, but' in the great majority of cases to say the least, utterly 
 impracticable. " Hence it is,'" says Mr. Starkie (4 Starkie's Ev. 1536), " that an artificial 
 and legal identity must be resorted to, as the proper test of variance : that is, it is suf- 
 ficient, if the proofs correspond with tte allegations, in respect of those facts and circum- 
 stances which are, in point of law, essential to the charge or claim." See 9 Petersd. Abr. 
 153, note. The cases cited in the succeeding notes under this head, will afford ample 
 illustrations of the above principle, with its exceptions. It should be noticed here, how- 
 ever, and remembered by the practitioner, that wherever a variance between the allegations 
 and proofs is relied upon, either by the one party or the other, the objection must, in general, 
 be taken at the trial of the cause, or it will not afterwards be heard. Hayden v. Nott, 9 
 Conn. Rep. 367 ; Lawrence v. Barker, 5 Wend. Rep. 301 ; West v. Andrews, 1 Barn. & 
 Cress. 77 ; Smith v. Hicks, 1 Wend. 303. (Facts proved but not pleaded are not in general 
 available to the party proving them ; for the court pronounces its judgment secundum 
 allegata et probata. 3 Comst. R. 506 ; Field v. Tlie Mayor, &c., of New York, 2 Selden, 
 179 ; 20 Barb. R. 473. When the action is on an order for the payment of money, parol 
 evidence is inadmissible to vary or contradict its terms ; though a subsequent modifica- 
 tion or waiver may be shown ; Parker v. City of Syracuse, 31 N. Y. 376. 
 (3) By Chambre, J., 1 N. R. 310. 
 
 Vol. I. 88 
 
698 The Substance only of the Issue needs be proved, [ch. xii. 
 
 payment to a third person by the appointment of the plaintiff, will be sub- 
 stantially payment to the plaintiff himself.(l) 
 
 (1) Note 227. — So, a conveyance to the nominee of the defendant will support an 
 allegation that " the defendant became the purchaser." Seaman v. Price, By. & Mood, 
 195. The question, say the court, was, substantially, whether the defendant had received 
 the benefit of the conveyance, so as to make him liable for what he had agreed to pay 
 the plaintiff for it. Upon a plea of payment, the defendant may prove a discharge in 
 bank notes, negotiable notes on individuals, or a debt already due from the payee to the 
 payor, delivered and accepted, or discounted as payment. Whittington et al. v. Roberts, 
 4 Monroe, 173, 174. " It is true," say the court, " that payment literally means a discharge 
 of the obligation, according to its letter. But courts have extended the issue more to the 
 spirit, and have not confined- it to the letter." Bank notes, in conformity to common 
 usage and understanding, are regarded as cash. Keith v. Jones, 9 John. Kep. 120 ; 
 Miller v. Race, 1 Burr. 452 ; Grant v. Vaughan, 3 Burr. 1516. It has been held in Con- 
 necticut, that an averment of a defendant that he had sent cash, or money, to the plaintiff 
 per mail, was not sustained by evidence that he had sent treasury notes, for " that treasury 
 notes are not casb." Poquet v. Hoadley, 3 Conn. Rep. 534. Where the plaintiff avers 
 performance of a condition precedent, he cannot sustain his averment by a tender, or an 
 excuse for non-performance. Dnckham v. Smith, 5 Monroe, 872. In an action by a 
 minister of the gospel, for his salary, upon a count for services performed, it appeared 
 that he had been prevented by the defendants from making use of the meeting-house, 
 but that he preached in private-houses to such as chose to attend ; and it was held that 
 there was no variance. Thompson v. Catholic Con. Society in Eheob., 5 Pick. 469. 
 Proof that the defendant had a horse of the plaintiff for sale, does not support an allega- 
 tion that he purchased it, and is debtor for the price. Johnson v. Crocker, 11 Mart. Lou. 
 Kep. 617. An allegation in a real action, that the plaintiff was owner, is supported prima 
 facie, by evidence, that he was in possession ; for the law presumes possession to follow 
 the title. Layton v. Menard's Syndics, 2 Mart. Lou. Rep. (N. S.) 505. Where the owner 
 of a mill brought an action to recover damages for a diminution of the profits, occasioned 
 by an obstruction erected by the defendant ; it being alleged in the declaration that the 
 plaintiff was possessed of the mill, and it appearing in evidence that the mill was occu- 
 pied by a tenant at will at a reduced rent, on account of the obstruction, it was held that 
 the declaration was supported by the evidence, as the injury was consequential upon an 
 act done while the plaintiff was in possession, and also as the possession of a tenant at 
 will is the possession of the landlord. Sumner v. Tileston et al., 7 Pick. 198. And where, 
 in covenant, the declaration charged that, during a specified period of time, the defendant 
 deprived the plaintiff of the water necessary for his mill, by diverting it therefrom, and 
 suffering it to be diverted by others ; held, the plaintiff was not limited in proving acts 
 committed by the ctefendant, or other persons, to the period stated in the declaration ; but 
 might prove previous acts, in consequence of which, the injury was sustained during the 
 alleged time. Hollingsworth v. Dunbar, 5 Munf. 199. If a declaration aver that, in 
 pursuance of an agreement, an action was discontinued ; evidence that since the agree- 
 ment no steps had been taken in the cause, is not sufficient to support the allegation. 
 Fanshaw v. Heard, 3 Carr. & Payne, 190. 
 
 Where the gist of the action is negligence, the party will be confined to the species of 
 negligence alleged (Breedlove et al. v. Turner, 9 Mart. Lou. Rep. 353) ; as where, in an 
 action against an attorney, it was charged that he negligently brought a cause of a par- 
 ticular kind in the parish court ; held, that he could not be made liable for neglect, in 
 not introducing proof to show that the cause of action arose within the parish. Breedlove 
 et al. V. Turner, mpra, 843, 380. And, where issue is taken on the neglect of the post- 
 master, it is not admissible to show neglect in the assistant postmaster. Dunlap v. Munroe, 
 7 Cranch, 242. So, if the declaration alleges misfeasance, as the gist of the action, the 
 
 Elaintiff cannot go for non-feasance. Doane v. Badger, 12 Mass. Rep. 65, 69. In an action 
 y a passenger in a coach, against the owner, for an injury done him in overturning ; if 
 the declaration state that the servants of the defendant negligently " drove, conducted, 
 and managed thtf coach," the plaintiff cannot recover, if the negligence was in sending 
 out an insufficient coach. Mayor v. Humphries, 1 Carr. & Payne, 25. But where the 
 charge was that the defendants " so carelessly and negligently provided, fitted out, managed 
 and conducted their stage coach," that while they were driving, it broke down, and injured 
 the plaintiff; and the injury turned out to have been occasioned by the insufficiency of the 
 coach itself, the nut, intended to secure one of the wheels, being shown unfit for that pur- 
 pose, in consequence of which the wheel came off, &c. ; held, that there was no variance. 
 Ware v. Gay, 11 Pick. 106. In case, for an injury to the reversion, the plaintiff alleged 
 the premises to be in the occupation of S. P. as tenant to him ; and it was held that the 
 allegation was sufficiently established by showing that S. P. had been let into possession 
 by, and paid rent to, a cestui que trust to whom plaintiff was trustee. Vallance v. Savage, 
 7 Bing. 500. Under a count against a sheriff for a voluntary escape, the plaintiff is entitled 
 to recover, if he prove a neghgent one. Bonafous v. Walker, 2 T. R. 126. But in tres- 
 
CH. XII.] In Civil Cases. 699 
 
 pass, if the defendant plead a license to enter, and issue is taken thereon, evidence of a 
 lease will not support the plea. Johnson v. Carter, 16 Mass. Rep. 443. See note 196. 
 
 (Under the code, in an action to recover money, alleged to have been obtained by the 
 defendant from the plaintiff by false and fraudulent representations, such money being 
 paid over on a settlement of a joint adventure, it is enough to show that the money was paid 
 over under misrepresentations of fact and that it actually belongs to the plaintiff, without 
 showing a fraudulent intent. Sheldon v. Wood, 2 Bosw. 267. The action is for the money 
 so received, and it is not necessary to prove a strict case of fraud, S. C. under the name 
 of Byxbie v. Wood, 24 N. Y. 607. So under a complaint fof an indebtedness, from the 
 defendant to the plaintiff, for hay, corn, and other property sold and delivered, and for 
 money had and received, by the defendant to the plaintiffs use, the plaintiff may prove a 
 conversion of his corn and hay, and that the defendant, having sold them, received the 
 money therefor. Harpending v. Shoemaker, 37 Barb. 270 ; Putnam v. Wise, 1 Hill, 234, 
 240, note a ; Schroeppel v. Corning, 2 Seld. 112 ; Roth v. Palmer, 27 Barb. 653. The receipt 
 of the money constitutes the cause of action. 6 Barb. 458 ; 13 How. Pr. R. 326 ; Allen v. 
 Patterson, 3 Seld. 476. A release may be proved by showing an estoppel ; Cornell v. Masten, 
 35 Barb. 157 ; and a non-delivery of stock, though refused because of a fraudulent injury 
 by defendant ; Seaman v. Low, 4 Bosw. 337 ; and in an action on a contract for services, 
 where plaintiff avers performance on his part, and claims a recovery generally for work and 
 labor, evidence in excuse for non-performance ia admissible ; the plaintiff may amend 
 and give the evidence. Hosley v. Black, 28 N. Y. 438 ; Farsen v. Sherwood, 17 N. Y. 237. 
 Under a complaint on a promissory note, describing it correctly in every particular, except 
 one, viz. ; the time when it was payable ; the plaintiff was allowed to prove the note pay- 
 able eight months after date, the defendant not showing that he was misled. Chapman 
 V. Carolin, 3 Bosw. 456. A variance in some particulars, in proving a usurious contract 
 set up by the defendant, the plaintiff not being misled, is not deemed material. Catlin v. 
 Gunter, 1 Kern. 868. It is not deemed material unless it has actually misled the adverse 
 party to his prejudice. Craig v. Ward, 36 Barb. 377, § 169, of Code. If the complaint 
 allege a fraudulent misrepresentation by the defendant, and the proof shows it to have 
 been made by his agent, it may be amended at the trial, or even after judgment, and will 
 be disregarded on appeal. Bennett v. Judson, 21 N. Y. 238 ; Lounsbury v. Purdy, 18 N. 
 y. 515. It being clear that the opposite party could not be misled by the variance, it may 
 be disregarded without amendment. Harmony v. Bingham, 1 Duer, 209. The objection 
 on the ground of a variance, should be made in the course of the trial ; it is too late to 
 make it in affequest to charge. Ward v. Forrest, 20 How. Pr. 465. A misnomer should 
 be amended on the trial without imposing any terms. Bank of Havana v. Magee, 20 
 N. Y. ouO. 
 
 In an action for false imprisonment, if the defendant justifies and the evidence fails to sup- 
 port the answer, it can only go to the question of damages ; and though the defendant 
 does not plead a justification, he may give evidence showing his grounds for suspecting 
 the plaintiff's guilt. Brown v. Chadsey, 39 Barb. 253. Actions for, in making arrests by 
 order of the president, will be transferred to the U. S. Courts. Jones v. Seward, 41 Barb. 
 269. Malice and want of probable cause are both material on the question of damages. 
 Under our present system, a justification must be pleaded specially, showing the commis- 
 sion of an offense, and the cause to suspect the plaintiff of its commission. Id. 263. 
 
 In actions for malicious prosecution, it is not necessary to show on the defense tliat an 
 offense has been committed, or th^ guilt of the accused; Swain v. Stafford, 3 Iredell, 289 ; 
 4 Id. 392 ; it is sufficient to show that the circumstances were such as to warrant a cautious 
 man in the belief that the plaintiff was guilty of the offense charged. Foshay v. Ferguson, 
 2 Denio, 617; Munns v. Nemours, 5 Wash. C. C. 37; Scanlan v. Cowley, 2 Hilt. 489. If 
 the evidence show a want of probable cause, malice may be inferred by the jury ; it being 
 a question for the jury to determine. Grinnell v. Stewart, 32 Barb. 544; Vanderbilt v. 
 Mathias, 5 Duer, 304, and cases tjtiere cited. A judgment in favor of the plaintiff in the 
 alleged malicious suit is sufBcient, though not conclusive evidence of probable cause ; 
 Palmer v. Avery, 41 Barb. 290 ; plaintiff must show in the action for malicious prosecu- 
 tion, that such malicious suit has terminated in his favor. McCormick v. Sisson, 7 Cow. 
 715 ; Clark v. Cleveland, 6 Hill, 344 ; 41 Barb. 306 ; Burt v. Place, 4 Wend. 591. In Brown 
 V. Mclntyre (43 Barb. 344), which was an action for malicious prosecution founded on these 
 facts : a crtditor, having a lawful claim for less than $4,200, commenced a suit against his 
 debtor in Canada, and on an affidavit stating the debt at $6,000 caused his arrest, and ha 
 being unable to give bail for that amount, and the law of Canada not permitting the aflS- 
 davit to be contradicted, he was imprisoned for eighteen months ; the court held that the 
 action would lie. 
 
 In an action to recover damages against a municipal corporation for a personal injury, 
 occasioned by its negligence, plaintiff proves his case by showing that defendant, in open- 
 ing a sewer in the street, threw the earth upon the sidewalk, and left it there during the 
 night without any signal light or barrier, and that plaintiff, in consequence of the obstruc- 
 tion, &c., fell into the hole and was inj ured : on the question of damages, plaintiffs earnings 
 from his business may be proved. Grant v. City of Brooklyn, 41 Barb. 381, The corpora- 
 tion is not liable for an injury caused by the giving away of a grate in the sidewalk, placed 
 there by the owner of adjacent lot. Hart v. Same, 36 Barb. 236.) 
 
700 The Substance only of the Issiie needs be proved, [ch. xii. 
 
 *826 *In aa action of covenant, when the breach assigned is, "that 
 the defendant has not used a farm, in a husbandlike manner, hut on the 
 contrary has committed waste," &c., to which the defendant pleads, " that 
 he has not committed waste," &c., but used' the farm in a good and hus- 
 bandlike manner, and issue is taken upon this, the plaintiff cannot give 
 evidence of any unhusbandlike treatment of the farm, not amounting to 
 waste ; for the issue is narrowed to this point. (1) So an allegation that the 
 defendant as tenant used the premises in an improper manner, being a charge 
 of voluntary waste, is not supported by evidence of permissive waste. (2) 
 
 In an action against a sheriff, where the plaintiff declai-ed, that he had J, 
 S. and his wife in execution, and that the defendant suffered them to 
 escape, and a special verdict was found, that the husband alone was 
 *827 taken *in execution (the execution being for a debt due from the wife 
 before coverture), and that he escaped, the court held, that the sub- 
 stance of the issue was found, and gave judgment for the plaintiff. (3) In a 
 similar action against the marshal, where the plea stated that the debtor 
 returned into custody before action brought, and that thereupon the defend- 
 ant before and at the time of the commencement of the suit, kept and detained 
 and still did keep and detain hitn in custody ; it was held that evidence of a 
 second escape after the commencement of the action, and before plea pleaded, 
 was inadmissible on the part of the plaintiff; as the defendant would not be 
 affected by anything which had occurred after action brought. (4) 
 
 In actions for slander, the courts used at one time to hold, that the plain- 
 tiff was bound to prove the words spoken precisely as laid ; but it is now 
 settled that it will be sufficient, if the plaintiff prove some material part 
 of the words alleged on the record. (5) If the declaration contain several 
 actionable words, the plaintiff will be entitled to a verdict on proving some 
 of them. (6) But the rule is difierent, where the words are not actionable 
 in themselves, and the action is brought for consequential damages arising 
 
 (1) Harris v. Mantle, 3 T. E. 307. See as to proof of waste. Van Deusen v. Toima:, 29 
 N. Y. 9. ^ 
 
 (3) Martin v. Qilham, 7 A. & E. 540. 
 
 (3) Roberts v. Herbert, 1 Sid. 5 ; S. C, cit. B. N, P. 299. And see Jones v. Clayton, 4 M. 
 & S. 349. 
 
 (4) Davis V. Chapman, 2 M. & G. 921. And see Basan v. Arnold, 6 M. & W. 559 : Brom- 
 field V. Jones, 4 B. & C. 380. 
 
 Dexter v. Adams (2 Denio, 646), shows that if the plaintiff has used artifice to induce 
 the debtor to escape, he cannot hold the sheriff for the escape. 
 
 (5) The witnesses inugt prove the words used, and will not be allowed to state the im- 
 pression produced on their minds by them. Harrison v. Bevington. 8 C. & P. 708. 
 
 (6) Compagiion v. Martin, 2 W. Bl. 790. And see Willmett v. Harmer. 8 C. & P. 695. 
 Note 238.— It is sufficient, if the plaintiff proves the substance of the words hud in his 
 
 declaration. Kennedy v. Lowry, 1 Binn. 393 ; Miller v. Miller, 8 John. Rep. 74 ; Grubbs 
 V. Heyser, 2 M'Cord, 305 ; Nye v, Otis, 8 Mass. Hep. 133. 
 
 But the sense and manner of speaking, as laid in the declaration, must correspond 
 strictly with the proof; therefore, words charged to have been spoken in the third person 
 will not be supported by proof of words spoken in the second person. Miller v. Miller 8 
 John. Rep. 74 ; M'Connell v. M'Coy, 7 Serg. & Rawle, 223. overruling Tracy v. Hashing,' 1 
 Binney's Hep. 396, note ; Wolf v. Rodifer, 1 Har. & John. 409. 
 
 (It is enough to prove the material words charged (Johnson v. Tait, 6 Binn. 121) ; but 
 not enough to prove a general charge, as of perjury, where the comiilaint alleges a spe- 
 cifie charge. Aldrich v. Brown, 11 Wend. 596 ; Emery v. Miller, 1 Denio, 308. 
 
 In an action for slander, for uttering these words, "Your boys stole my corn,'' the 
 defendant will not be allowed, in a suit brought by one of the boys, to show that two of 
 the other boys stole his corn. The words imputing a crime are actionable in themselves ; 
 and if the party speaking them does not qualify them in the presence and hearing of the 
 persons jiresent, he is liable. Mitybee v. Fisk, 43 Barb. 326 ; Qidney v, Blake, 11 John. 54 ; 
 Ryckman v. Delavan, 25 Wend. 303 ; unless, indeed, the conversation be sucli as to show 
 that the words were spoken with reference to property that could not be the subject of 
 larceny, or a transaction so explained as not to Impute a crime to the plaintiff. Phillips 
 V. Barber, 7 Wend. 439 ; 43 Barb. 326.) 
 
CH. XII.] In Civil Cases. 701 
 
 from them : in that case, it is not sufficient to prove equivalent words of 
 slander, though explained in the same sense by the defendant himself.(l) 
 
 In an action of replevin, where the defendant avowed taking the cat- 
 *828 tie *as damage feasant, the plaintiff pleaded in bar, that one W. was 
 
 seized of a house and land, &c., whereto he had common, &c., and de- 
 mised the same to him to hold from a certain day next before, for a year; the 
 avowant traversed the lease, modo et forma, upon which issue was taken ; 
 the jury found a special verdict, that W. made a lease to the plaintiff 
 on the day stated, for a year ; and the plaintiff had judgment ; for although 
 this is no"t the same lease as pleaded (since this begins on the day, and the 
 other not so soon), yet the court said, the substance of the issue is, whether 
 or not the plaintiff had such a lease that by force thereof he might have 
 common at the time, and this appeared to be the case here. (2) ^ 
 
 (1) Armitage v. Dunster, 4 Doug. 391. See Maitland v. Goldney, 3 East, 434. 
 
 Nor can the plaintiff prove other words than those charged in the complaint to prove 
 actual malice. Howaid v. Sexton, 4 Comst. 157 ; Root v. Lowndes, 6 Hill, 519 ; Campbell 
 v. Butts, 3 Comst. 174. Under the New York Code of Procedure, the defendant may allege 
 and prove a state of facta tending to establish the truth of the words complained of as 
 slanderous, in mitigation of damages. Brisley v. Shaw, 2 Kernan R. 67. The time of 
 uttering the words is not material, and a variance in this respect is not a variance that 
 will be regarded. Potter v. Thompson, 33 Barb. 87. 
 
 (2) Pope V. Skinner, Hob. 73 ; S. C, cit. B. N. P. 300. And see Forty v. Imber, 6 East, 434. 
 Note 229.— But the party will not be allowed to depart altogether from the issue, as if 
 
 it had been proved that he had a right of common by lease from another. Pope v. Skinner, 
 cited in the text. An averment of a demise for three yea/rs, in an action for replevin, is 
 not supported by proof of a lease for one year certain, and two years' further possession on 
 the same terms, by consent of the landlord. Alexander v. Harris, 4 Cranch, 299. So where 
 the defendant, in his avowry, averred that the plaintiff, as his tenant, held and enjoyed 
 certain premises for the space of seven years and six months, under a certain demise and 
 at a certain rent, and by the evidence it appeared that the premises were held by the 
 plaintiff only six years and six months, the variance was held fatal. Tice v. Norton, 
 4 Wend. Rep. 668. 
 
 The foregoing cases were decifled upon common-law principles, which require the avow- 
 ant to allege what estate he was seized of, and also the grant ordemise to the tenant, with 
 great precision and accuracy. The difficulties attending this practice, and the inconvenient 
 length to which it has been carried, will appear by a note of Sergeant Williams to Pooly 
 V. Longueville (3 Saund. 384 c, note 3). Vide, also, Wright v. Williams, 5 Cowen's R 338, 
 and the authorities there reviewed by Sutherland, J. Forty v Imber, cited in the text, 
 was decided under the more liberal provisions of 11 Geo. II, ch. 19, § 32, and expressly 
 upon the ground that, by that statute, the rigor of the common law in this respect had 
 been relaxed, and that, since its passage, the defendant in replevin might recover rent for 
 a less period than he avowed for. A similar statute has been enacted in New York, which 
 provides, that " Whenever a distress shall be made upon any lands or tenements, for any 
 rents or services issuing out of such lands or tenements, and a replevin shall be brought 
 for the property distramed, the defendant may avow or make cognizance generally, that 
 the plaintiff in replevin, or other tenant of the lands or tenements whereon such distress 
 was made, enjoyed the same under a grant or demise, or by any other title, at a certain 
 rent, or by certain services during the time wherein the rent distrained for was mcnrred, 
 which rent was then and still remains due ; or that the place where the distress was taken 
 was parcel of certain tenements for whidi the ren^ or service distrained for was, at the 
 same time of such distress, and still remains, due ; withbut further setting forth the grant, 
 demise or title of the landlord or lessor ; and without flaming any person certain as the 
 tenant of such lands or tenements." 2 R. S. 539, § 41. And by § 43, it is farther pro- 
 vided, that " In an action of replevin for beasts distrained for doing damage, it shall be a 
 good justification for the defendant to plead, avow or make cognizance that he,, or the 
 person by whose command he acted, was lawfully possessed of the lands and tenements 
 upon which the distress was made; and that the Iseasts or chattels distrained were, at the 
 time of such distress, doing damage therein ; without setting forth a title to such lands and 
 tenements." See recent cases, p. 836. 
 
 flow far these provisions will relieve the avowant from proving precisely what he 
 alleo-es, should he, instead of avowing generally according to the statute, set out his title, 
 fiCjlls at common.law, remain^ to be settled by judicial construction. Under the English 
 statute above referred to, it has been held, that although the defendant in replevin may 
 avow generally, yet the contract for letting must be truly stated and proved. Thus, where 
 the defendant avowed as bailiff for one Tate, for rent due from the plaintiff, as tenant of 
 certain premises, to the avowant by virtue of a demise, &c. ; and, on the trial, it turned 
 
702 The Substance only of the Issue needs he proved. [ch. xn. 
 
 *829 To a declaration in trespass the defendant pleaded generally that he 
 had enjoyed as of right for thirty years next before the commence- 
 ment of the action ;(l) the plaintiif replied that a life estate was 
 outstanding for twenty-seven of the said thirty years ; the defendant re- 
 joined that such estate did not continue during any part of the said thirty 
 years ; and issue was thereupon joined. The defendant proved enjoyment 
 during two periods, amounting together to thirty years, one period before, 
 and one after the life estate ; and it was held that the issue on his part was 
 supported. (2) 
 
 In an action by a commoner for disturbing his common by putting on 
 cattle, the defendant pleaded a right of common appurtenant for cattle 
 
 out that the premises had . been devised by one Bradney to three trustees to sell ; that, 
 after the death of Bradney, the three trustees became parties to deeds of lease and release, 
 by which the property was conveyed to Tate ; but these deeds were executed by only two 
 of the three trustees : under these circumstances, it was held, that as the defendant had 
 alleged a title to the whole rent, and only proved a right to two-thirds of it, the variance 
 was fatal. Philpott v. Dobbinson, 6 Bing. 104. But where the defendant avowed for 
 rent in arrear, for a dwelling-house with the appurtenances, and it appeared that the 
 plaintiff merely occupied the upper part of the house, and that the shop and yard were 
 in the occupation of other tenants, it was held no variance. Page v. Chuck, 10 Moore, 264. 
 And so, where the defendant avowed for rent, stating that the plaintiff held the closes, 
 &c., at and under a certain yearly rent ; and on the trial it turned out that the tenant held 
 the closes mentioned in the declaration, and two others also, at the rent mentioned in the 
 avowry ; this evidence, it was decided, supported the avowry, inasmuch as each part of 
 the land was liable for the entire rent ; and the defendant might well say, that the closes 
 in which the distress was talsen were held under the whole rent, payable for all the closes. 
 Hargrave v. Shewin et al., 6 Barn. & Cress. 34. 
 
 (When tlie complaint states two causes of action, in one of which he claims to recover 
 the possession of a draft belonging to him and wrongfully detained by the defendant, 
 and in the other to recover the possession of $7,250 of money which he alleges to be. his 
 property and wrongfully detained by the defendant : and the proof shows that the 
 defendant was employed as plaintiff's agent, and as such, sold and delivered a quantity of 
 pork and received therfor a bank draft payable to his own order, and had the same dis- 
 counted and placed to his credit in bank ; that after he had done so plaintiff demanded of 
 him the draft or the avails of it, and he refused to deliver ; and the court held that this 
 was not the case of a variance which might be disregarded or amended under the code, 
 but a failure of proof under § 171 ; that the action was in form one of tort, while the 
 cause of action proved was one of contract. Walter v. Bennett, 16 N. Y. 250. So on a 
 note against three defendants, proof of the liability of two of them on a previous note, is 
 not a variance but a failure of proof. Lawrence v, McCready, 6 Bosw. 329. So where the 
 complaint counts upon a contract of warranty and the cause is tried upon that theory, 
 the court will not uphold tlie verdict (of a justice's court) on the ground that the evidence 
 establishes a case of fraud. Fisher v. Fredenhall, 21 Barb. 82. Or for obstructing a 
 stream and overflowing plaintiff's land, plaintiff cannot show an injury to the drainage of 
 his land. Pixby v. Clark, 32 Barb. 268. If the complaint on a promissory note contain 
 the usual allegations charging the defendants as maker and indorser, and the answer 
 admits them and sets up as a defense that the note was without consideration, had been 
 transferred to the plaintiff merely as a collateral security, and had been obtained by false 
 representations, it is not admissible to show that the note has been paid ; it is not a case 
 of variance, but a failure of proof T^xier v. Genin, 5 Duer, 389. The nature and form of 
 the defense or of the action cannot be changed on the trial, so as to admit an entire new 
 defense or cause of action. Hempsted v. N. Y. Central R. R. Co., 28 Barb. 485 ; 5 Duer, 
 889. If the complaint against a railroad company alleges an injury from its neglect to 
 construct eattle-gvurda, a recovery cannot be had by shewing an omission to build fence*. 
 Parker v. R. & S. R. R. Co., 16 Barb. 315. Where the plaintiff's cause of action remains 
 wholly unproved, the court cannot enter judgment in his favor upon facts which con- 
 stitute another cause of action wliolly inconsistent with that stated in the complaint. 
 SaltuB V. Genin, 3 Bosw. 250. So under a complaint alleging a guaranty, evidence can- 
 not be given showing a contract of indorsement ; it is a variance which the judge cannot 
 disregard and has no power to correct on the trial. Cottrell v Conklin, 4 Duer, 45. An 
 answer which sets up one entire usurious contract, is not supported by proof of two con- 
 tracts of that general nature. Griggs v. Howe, 31 Barb. 100. See cast) of Butterworth v. 
 Pecare, 8 Bosw. 671. See ante, note 227, for some recent cases of variance not deemed 
 material.) 
 
 ' ■ Under 2 & 3 Wm. IV, c. 71, §§ 1, 4, 7. 
 Clayton v, Corby, 2 Q. B. 818. 
 
 (2) 
 
CH. xn.] ^ In Criminal Cases. 703 
 
 levant and couchant ; that the cattle in the declaration mentioned were the 
 defendant's own commonable cattle levant and couchant, and that he put 
 them on to use the common. The plaintiff replied that "all the said 
 cattle in the declaration mentioned " were not the defendant's own common- 
 able cattle levant and couchant, in manner, &c. It was held that the 
 defendant maintained his issue by showing that on the occasion of every 
 alleged disturbance, some of the cattle put on were levant and couchant ; 
 and that upon that issue the plaintiff could not insist on a surcharge :(1) 
 as the word " all " was interpreted to mean that the levsincy and couchancy 
 was untruly alleged as to all the cattle ; not that it was truly alleged of 
 Bome, and falsely of others. 
 
 If the issue joined between the panties is, whether A. and B. were 
 churchwardens, proof that one was, and not the other, would not be suffi- 
 cient. (2) Where the declaration averred, that the plaintiff was constable 
 of a particular parish, and that he was assaulted in the execution of his 
 office as constable, and it appeared on the evidence, that he had been sworn 
 in to serve for a whole liberty, of which the parish formed a part, this was 
 
 held to be a material variance. (3.) 
 880* *A plea of tender will be supported by proof of a tender of a larger 
 sum than that named in the plea; (4) but if the plaintiff reply to such 
 a plea, that, before the cause of action and after the tender, he demanded 
 the sum tendered, he will be obliged to prove, under the issue joined upon 
 this replication, a demand of that specific sum. The proof of a demand of 
 a larger sum would not support the issue. (5) A plea of payment in accord 
 and satisfaction will be sustained by proof of the payment of a sum suffi- 
 cient to cover the plaintiff's real demand, and it will not be necessary to 
 show payment of the whole sum stated in the plea. (6) 
 
 2. Examples in criminal cases. 
 
 The same general rule of evidence applies, if possible, still more strongly 
 to the case of criminal prosecutions than to civil suits ; as it is a universal 
 principle, which runs through the whole of the criminal law, that it will be 
 sufficient to prove so much of the indictment as charges the defendant with 
 a substantive crime. (1) 
 
 K the indictment charges that the defendant did, and caused to be done, 
 a particular act, it is enough to prove either one or the other. If the defend- 
 ant is charged with composing, printing, and publishing a libel, he may be 
 convicted only of the printing and publishing. (8) 
 
 On an indictment for obtaining money under false pretenses, it is not 
 necessary to prove the whole of the pretenses charged ; proof of part of 
 the pretenses, and that the money was obtained by such part, (9) is suffi- 
 
 (1) Bowen v. Jenkin, 6 A. & E. 911. See Barnes v. Hunt, 11 East, 451. 
 ' (2) B. N. P. 299. 
 
 (3) Goodes v. Wheatly, 1 Camp. 231. 
 
 (4) Dean v. James, 4 B. & Ad. 546. 
 
 (5) Rivers v. Griffiths, 5 B. & A. 634 ; Spybey v. ffide, 1 Camp. 181 ; Brandon v. New- 
 ington, 3 Q. B. 915, overruling Tyler v. Bland, 9 M. & W. 838. See Cotton v. Godwin, 7 
 M. & W. 147 ; Hesketh v. Fawcett, 11 M. & W. 356. 
 
 (6) Fblcon V. Benn, 2 Q. B. 314. 
 
 (7) By Lord Ellenborough. C. J., in B. v. Hunt, 2 Camp. 583. 
 
 (8) R. V. Hunt, 2 Camp. 583 ; R. v. Williams, Id. 646 ; R. v. Middlehurst, 1 Burr. 400. 
 See, also, cases in 2 Bast P. C. 515, 516, and in 2 Euss., Cr. & M., by Greaves, bk. 6, ch. 2, 
 § 3, p. 786, et seq. 
 
 (9) R. V. Hill, R. & R. Cr. C. 190. 
 
 Note 230. — But where an indictment for obtaining money by false pretenses, alleged 
 that the false pretense consisted In the defendant's having said that he had paid a sum of 
 money into the bank, and the proof was, of his having said that a sum had been paid into 
 th* bank, without saying by whom, the variance was held fatal. Rex v. Plestow, 1 Camp. 
 494. The case goes upon the ground that there was a difference in substance between the 
 two assertions. It is not essential, however, to prove that the prisoner used the identical 
 words which are alleged ; acts and conduct, which virtually amount to the false pretense 
 charged, will be enough, 4 Starkie's Ev. 563, 564. 
 
704 The Substance only of the Issue needs he proved, [ch. xir. 
 
 *831 *eient; unless the false pretenses were so connected as to be inca- 
 pable of separation. (1.) 
 On an indictment for burglary and stealing goods, if it appear that no 
 burglary was committed, as where the breaking and entering were not in 
 the night — or on a charge of robbery, where the property was not taken 
 from the person by violence, or by putting him in fear— the prisoner may 
 be found guilty only of the simple larceny, or stealing. (2) 
 
 On the trial of an indictment for murder, the jury may find the prisoner 
 guilty of manslaughter only ; for the principal matter is the unlawful kill- 
 ing, and the malice is only a circumstance in aggravation. (3) And if the 
 manner or means of the death, proved at the trial, agree_ in substance with 
 the means charged in the indictment, it will be sufiicient ; as where the 
 indictment is for killing with a dagger, and the evidence proves the killing 
 with a staff; or if the indictment be for killing with one sort of poison, and 
 the evidence proves the killing with another ; such evidence mamtains the 
 indictment, because the proof of the identical instrument is not absolutely 
 necessary to the proof of the fact itself ; (4) but if the charge is for poison- 
 ing, and the death is proved to have been caused by striking or starving, 
 this evidence would not support the indictment, as the species of death in 
 the one case is totally different from that in the other. (5) 
 
 If tjie indictment charges that A. gave the mortal blow, and that B. and 
 C. were present, aiding and abetting, &c., but on the evidence it appears 
 that B. struck, and that A. and C. were present, aiding, &c., this is not a 
 material variance, for the stroke is adjudged in law to be the stroke of every 
 one of them, and is as strongly the act of the others, as if they all three 
 had held the weapon and had struck the deceased. (6) The identity of the 
 person supposed to have given the stroke, says Foster, J., is but a 
 *832 'circumstance, and in this case a very immaterial one. The stroke of 
 one is, in consideration of law, and in sound reason too, the stroke of 
 all. They are all principals in law, and principals in deed. (7) 
 
 The rule that all the pretenses charged in the indictment need not be proved, unless 
 indeed all are necessary to cnnstitute the offence charged, has been recently recognized in 
 New York (The People v. Haynes, 11 Wend. 557) ; and in this case it is laid down, that 
 where the false pretenses proved are, per se, sufficient to constitute the offense, the accused 
 will be convicted ; and those not proved may be regarded as surplusage. See also Rex 
 v. Perrott, 3 Maule & Selw. 379, S. P. Fowler ads. People, 18 How. Pr. 493. Nor is it 
 necessary that the pretenses charged should be the sole inducement to the credit or 
 delivery of the property ; it is enough if they had so material an effect in procuring the 
 credit or inducing the delivery, that without their influence the party defrauded would 
 not have given the credit, or parted with the property. The People v. Haynes, supra. 
 Where several act in concert, the pret&nse conveyed by the words of one, in the presence 
 of the rest, will support an allegation of false pretense by all. Young v. The King, 3 T. 
 R. 98. So, if the others be not present, provided what is said by one be in pursuance of 
 a previous confederacy among all. Livermore v. Herschell, 3 Pick. 33. 
 
 (1) R. V. Wickham, 10 A. & E. 34. 
 
 (3) 3 Hale P. C. 303 ; 3 East P. C. 784. And see R. v. Withal, 1 Lea. 88 ; 4 Park. 
 Cr. 153. , 
 
 (3) Mackalley's Case, 9 Rep. 67 b ; Co. Lit. 383 a ; Gilb. Bv. 233. So upon a trial for 
 petit treason, the prisoner might have been guilty of murder only. Case of Swan and 
 Jefferys, Fost. Disc. 104. 
 
 (4) Mackalley's Case, ut supra; Gilb. Ev. 331 ; 1 East P. C. 341 ; Donellan's Case, 3 
 Halo P. C. 185. And see R. v. Clark. I B. & B. 473 ; R. v. Jackson, 18 How. St. Tr. 1075 ; 
 3 Inst. 135 ; R. v. Grounsell, 7 C. & P. 788 ; People v. Colt, 3 Hill, 433. 
 
 (5) See tlK! authorities cited last note, and 3 Inst. 319. By a bill " for further improv- 
 ing the administration of criminal justice," recently introduced by Lord Campbell into 
 the House of Lords, and ordered to be printed, 13th Fobrury, 1851, it is proposad to be 
 enacted (by § 2), that in indictments for murder or manslaughter, the means by which the 
 injury was inflicted need not be specified, but that it shall be sufficient to say that l^e 
 person accused did "kill and murder," or " kill and slay" the deceasyd. 
 
 (6) Mackalley's Case, 9 Rep. 61 B ; 1 Plnwd. 98 ; Wallis' Case, 1 Salk. 834 ; Fost. Disc 
 35i ; Towle's Case, on stat. 43 Geo. Ill, c. 58, 3 Pri. 145. 
 
 (7) Note 331. — So where A. was named in the indictment as principal for maiming, and 
 
CH. XII.] In Crimindl Gases. 705 
 
 On the other hand, if two persons are indicted as principals, and one is 
 proved to be only accessory, he nfUst he discharged on this indictment, (1) 
 for in consideration of law their offences are quite different. And one 
 indicted as accessory before the fact caanot be convicted upon evidence prov- 
 ing him to have been ^principal in. the second degree) present, aiding and 
 abetting, at the fact. (2) 
 
 In Mackalley's Case, (3) where the prisoner was tried for the murder of 
 a Serjeant at mace in London, the indictment charged that the sheriff made 
 a precept to the serjeant for the arrest, and it appeared upon the evidence 
 that there was no such precept, but that the serjeant made the arrest ex 
 officio at the plaintiff's request, on the entry of the plaint according to the 
 Custom of the city ; and all the judges held, that the variance between the 
 indictment and the evidence was not material, because the warrant to arrest 
 was only a circumstance, and the substance of the matter had been found, 
 which was, that the prisoner killed an officer in the lawful execution of legal 
 process. The judges were also of opinion that the indictment might have 
 been general (that the prisoner feloniously and of his malice prepense killed, 
 &c.), and that the special matter might have been given in evidence ; and 
 since the indictment contained such an averment, they held that the charge 
 of murder had been proved, notwithstanding that the special matter given 
 in evidence might vary in substance from the special matter contaiped in 
 the indictment. (4) 
 
 D. as aiding and abetting, the court charged that if both were present and one only com- 
 mitted the offence, and the other was aiding and abetting, " both are equally gaUty," both 
 may be said to have done the act, and both are answerable for it as principals ;" and 
 further, that even if the jury found " that D. was principal, and A. accessory, the indict- 
 ment would be sustained." The State v. Mairs, 1 Coxe's Bep. 453, 457. This must, of 
 course, mean where the punishment is the same. 
 
 (1) Gilb. Ev, 232. See Fost. Disc. 361. 
 
 (2) R. V. Gordon, 1 East P. C. 852. 
 
 Note 232. — In New York (2 R. S. 698, § 6), persons who are principals in the second 
 degree in the commission of felony, or who are accessory to a murder or felony before the 
 fact, are amenable to the same punishment as principals in i the second degree. Accesso- 
 ries after the fact, however, are liable to a milder punishment. Id. 699, § 7. 
 
 (3) 9 Rep. 61 b. 
 
 Note 233. — In order to make killing a bailiff, by resisting the execution of mesne process 
 in a civil action, amount to murder, it seems necessary to prove the writ as well as the 
 sheriff's warrant to the bailiff. Rex v. Mead, 2 Stark. Bep. 30!>, and see note a, 207 ; also 
 Bex V. Meade, 1 Holt's N. P. Rep. 593, S. P. People v. Van Steenburgh, 1 Park. Cr. 39. 
 
 (4) Note 234. — As the result of the cases cited in the text, and others, relating to the 
 same subject, Mr. Chitty, in a very lucid dissertation on the rules of proceeding in criminal 
 cases, gives the following : " The jury may acquit the defendant of a part, and find him 
 guUty of the residue. Thus, they may convict him upon one count of the indictment, and 
 
 acquit him of the charge contained in another ; or upon one part of a count capable of 
 *833 division, and not guilty of the other *part ; as on a count for composing and publishing 
 
 a libel, the defendant may be found guilty of publishing only. And, in general, where 
 from the evidence, it appears that the defendant has not been guilty to the extent of the 
 charge specified, he may be found guilty, as far as the evidence warrants, and be acquitted 
 as to the residue ; as, where he is charged with engrossing 1,000 quarters of wheat, and 
 the evidence amounts to but 700 (Hawk. b. 2, c. 28, § 75) ; bat if a contract be described, it 
 must be proved as laid, and the jury cannot find a variant contract. 2 Hawk. b. 2, t. 26, 
 § 75 ; Lane, 19, 59, 60. And where the accusation includes an offense of inferior degree, 
 the jury may discharge the defendant of a higher crime, and conflict him of the less atro- 
 cious. Thus, upon an indictment for burglariously stealing, the prisoner may be convicted 
 of the theft, and acquitted of the nocturnal entry (1 Leach, 36, 88 ; 2 East P. C. 516 ; 1 
 Hale, 559, 560 ; Hawk. b. 2, c. 247, § 6, 1 Hale, 560 ; Com. 478 ; 2 Hale. 302) ; upon an indict- 
 ment of murder, he may be convicted of manslaughter (Co. Litt. 282 a ; 2 Rol. Rep 460 : 
 Cro. EUz. 396 ; 3 Dyer, 361 a ; 2 Hale, 302, 292, 293 ; Hawk. b. 3, c. 47, § 4) ; on an indict- 
 ment on the statute of stabbing (1 Jac. I, c. 8), he may be acquitted of the statutable 
 offense, and found guilty of felonious homicide. Style, 86 ; 2 Halp, 303 ; Hawk. b. 3, c. 47, 
 § 6. On an indictment of stealing privately from the person, he may be found guilty of 
 the larceny only. 1 Leach, 240 ; 3 Hale, 303 ; Hawk. b. 3, c:47, § 6. On an indictment for 
 grand, the offense may be reduced to petit larceny. 2 Hale, JSOS ; 2 Str. 1134 ; Hawk. 
 b. c. 47, § 6. Robbery may be softened into felonious theft (3 Hale, 302 ; Hawk. b. 
 Vol. I. 89 
 
706 The Substance only of the Issue needs be proved. [ch. xh. 
 
 2 c 47 § 6) ; and petit treason lessened to murder or any description of less atrociouB 
 homicide. 1 Leach, 457 ; 2 Hale, 303, 292 ; 1 East P. C. 339, 356 ; Fost. 104 ; Hawk. b. 2, 
 c. 47, § 6. And on an indictment founded on a statute, the defendant may be found guilty 
 at common' law. Hawk. b. 3, c. 46, § 178. 
 
 The only exception to this rule seems to be, where the prisoner, by being originally 
 indicted for a, different offense, would be deprived of any advantage which he would 
 otherwise be entitled to claim ; in which case the prosecutor is not permitted to oppress 
 the defeodant, by altering the mode of proceedings. A defendant, therefore, cannot be 
 found guilty of a misdemeanor on an indictment for felony, because he would by tliat 
 means lose the benefit of having a •copy of the indictment, a special jury, and of making 
 his full defense by counsel. Str. 1137 ; Kel. 29, 80; 12 Mod. 520, n. b. ; Cro. Car. 332 ; 
 Hawk. b. 2, c. 47, § 6. And though it was formerly thought that if, after conviction of 
 felony, the fact appeared to be a mere trespass, judgment might be given for the latter 
 (Hawjk. b. 3, c. 47, § 12 ; Cro. J. 497, 4S8; g Str. 1137), the contrary is now established, and 
 the prisoner is entitled to have the judgment altogether correctect. 1 Leach, 12 ; 2 Str. 1137. 
 Upon the same principle, no one can be convicted of petit treason on an indictment of 
 common murder, becaase he would thereby lose the benefit of the larger number of 
 peremptory challenges (Fost. 304, 338) ; but, i^ an indictment for the former, he may be 
 properly convicted of the latter, because he thereby enjoys a higher benefit, instead of 
 losing any privilege to which he may be entitled. 1 Leach, 437 ; 2 Hale, 303 ; 1 East P. 
 C. 389, 356 ; Fost. 104 ; Hawk. b. 3, c. 47, § 6. Where the offense appears from the evi- 
 dence to be of a higher degree than is alleged in the indictment, it is in the discretion of 
 the court to discharge the jury, and direct another indictment to be preferred. Fost. 327, 
 338, 104. Thus, where a prisoner is accused of murder, and the crime amounts to petit 
 treason, the court will not direct an acquittal,, but discharge the jury of that indictment, 
 and direct a fresh bill to be preferred, lest he should avail himself of the previous acquittal. 
 Id.; 1 Chitty's Grim. Law, 637, 638, 639. Upon an indictment for burglary and larceny 
 against two, one may be found guilty of the burglary and larceny, and the other of the 
 larceny only. Rex v. Butterworth, Russ. & Ryan, 344. On an indictment against two, 
 charging them with a joint larceny, one was found guilty of a capital offense, and the 
 other of a simple larceny; thus presenting the' question whether sentence of death could 
 be passed upon the one capitally convicted, or whether the verdict of the jury was not 
 virtually an acquittal of both. The case coming to be considered by the judges, they 
 were of opinion that judgment could not be given against both ; but that on pardon being 
 granted, or a tioUe prosequi entered, as to the one convicted of a simple larceny, judgm.ent 
 might be given against the other. Rex v. Hempstead. Russ. & Byan. 334. 
 
 The American cases will be found substtintially accordant with the doctrine stated 
 above. On an indictment for a forcible entry and detainer, the jury may acquit, as to the 
 entry, and convict of the detainer. The People v. Anthony, 4 John. Rep. 198 ; Common- 
 wealth V. Rogers, 1 Serg. & Rawle, 124. So, on an indictment for grand larceny, 
 *834 the jury may convict of petit larceny. *The State v. Wood, 1 Rep. Const. Court, 39. 
 And proof of a rape will sustain an indictment for a mere attempt to commit one. 
 State of Connecticut v. Shepherd, 7 Conn. 54 ; Commonwealth v. Cooper, 15 Mass. 187. 
 So, under an information for assault, with intent to commit manslaughter, it has been 
 held, the defendant might be convicted of the offense charged, though the proof was of an 
 assault, with intent to murder. State of Connecticut v. Parmelee, 9 Conn. Rep. 259. 
 
 By the Revised Statutes of New York, several crimes are distributed into degrees ; as 
 first, second and third degrees of manslaughter, burglary, forgery, &c., and different 
 pimishments are aifixed to these degrees respectively, wherefore it becomes necessary to 
 state the degree in the indictment. The same statutes (Vol. 3, 703, § 56), provide, that 
 on trial of an indictment for actually committing a crime, there shall not be a conviction 
 of an assault with intent, or an attempt to commit a crime ; though (by Id. § 37), where 
 the offence consists of different statute degrees, the jury may acquit, as to the degree 
 charged, and convict of any inferior degree of the same offense, or of an attempt to com- 
 mit the offence. Under a previous provision (Id. 665, § 36), Quoteau was indicted for an 
 assault and battery, with a deadly weapon, upon Meigs, with intent to murder. In proof, 
 it turned out to be a mere assault, but no battery ; which is made an independent crime 
 by a subsequent section. Id. p. 66, § 39. An objection was therefore taken, that the case 
 not coming within the Revised Statutes respecting convictions of inferior degrees, the 
 defendant must be acquitted. Held otherwise, and that the above common-law doctrine 
 applied. People v. Quoteau, Franklin 0. & T., Feb. 1834, Cowen, C. Judge, presiding. 
 
 It is proper to observe here, that the rules of evidence in criminal cases are, in most 
 respects, the same as in civil cases ; the chief distinction which prevails will be found to 
 originate in that caution which is always observed when life or liberty is in question, and 
 in those benign presumptions with which the law meets every accusation involving moral 
 turpitude. See United States v. Porter, 3 Day's Rep. 383, per Livingston, J. See also 3 
 Hale's P. C. 193 ; 4 Burr. 3083. The prosecutor must prove all the facts alleged in the 
 indictment, entering into the substance of the charge ; and all the distinctions between 
 material and immaterial averments are equally well settled in criminal as in civil cases. 
 See post, note 339. As to allegations respecting time, in an indictment, see poet, note 248, 
 and place, see post, note 349. 
 
CH. XII.] In Criminal Cases. 707 
 
 In the State v. Mairs (1 Coxe's Rep. 453), the prisoner was indicted for maiming, by 
 feloniously cutting off the nose of a man with a knife ; upon the trial, some observations 
 having been made as to the manner in which the act was done, Kinsey, C. J., in charging 
 the jury, remarked : " That the substance of the crime charged is the willfhl and deli- 
 berately catting off the nose, and whether this is effected by one instrument or another is 
 perfectly immaterial. I think I may go further, and say, if the party deliberately and 
 with the intention of biting off the nose of another, watches his opportunity and effects 
 his purpose, the nose may be said to be cut off) and the jury would be bound to find so. 
 It is not necessary to prove to have been done with a knife, as laid in the indictment."' 
 
 A variance as to an allegation of number, magnitude or value, is in general nuimpor- 
 taut ; provided that what is proved in respect to these particulars is sufficient1;o constitute 
 the offense charged (Rex v. Jenks, 2 East's P. C. 514 ; 1 Hale, 313 ; 1 Holt, 595 ; 3 Camp. 
 264) ; and so of sums of money. Rex v. GHlham, 6 T. R. 265 ; (People v; Herrick, 13 Wend. 8'^, 
 In treason, a variance between the proof and indictment, as to the number of insurgents, 
 is not material. United States v. Vigol, 2 Dall. 347. Where an indictment for a nuisance 
 to a highway alleged it to be a way for all the liege subjects, &&, to go with their horsesf, 
 coaches, carts, and carriages ; and the evidence was, that carts of a particular description, and 
 loaded in a particular manner, could not pass ; held, not a misdescription, it not being laid 
 as a highway for aU cwrts, carriages, &c. Rex v. Lyon, Ryan and Moody, 15(1. But if an 
 indictment allege that a bridge was a public carriage bridge, and also for the king's sub- 
 jects to pass, &c., on foot ; and it appear that it had been used by passengers on horseback 
 and on foot, and not with carriages, the defendant cannot be convicted of any part of the 
 charge. Per Bayley, J., in Rex v. Inhabitants of Lancashire, Lancaster Summer Assizes, 
 1820, 4 Starkie's Ev. 316. And whenever the allegation is an essential ingredient of the 
 offense charged, or where it goes merely to describe or qualify tha,t which is material, the 
 proof must correspond with it. Hence, writings produced in evidence must not vary from 
 the statements they are intended to sustain, and very slight discrepancies have been occa- 
 sionally held fatal in such cases. The strictness, however, with which this princijile 
 applies, depends much upon whether the indictment purports to set out the writing 
 according to its legal effect, or in the vm'y words. In the former case, it will suffice if there 
 be no variance in substanoe, while in the latter, the prosecutor is held to an accurate 
 TecitaL Bat even in the latter instance, a mere literal variance in the spelling of a word, 
 where the word is not changed to another of different meaning, will not be fatal. See 1ft 
 Petersd. Abr. 508, 509, note, and cases there cited, and post, note, 247. Wliere the indict- 
 ment^was for forging a note, and the note produced had an indorsement upon it, which 
 was likewise forged, the court held the indorsement no part of the instrument ; and, 
 therefore, not necessary to be set out. Commonwealth v. Ward, 2 Mass. Rep. 397. So 
 where the indictment was for forging a bank bill, and purported to set forth the bill in 
 " words and figures," in which case a strict recital was admitted to be necessary ; held, 
 that the number of the bill, and the figures in the margin making its amount, were not 
 parts of the bill, and the omission to set them out constituted no variance. Common- 
 wealth v. Bailey, 1 Mass. Rep. 62 ; Commonwealth v. Stevens, 1 Mass. Rep. 203, S. P. And 
 it is not necessary in such eases to set out the ornamental parts of the bill, as the devices, 
 mottoes, &c. Commonwealth v. Searle, 2 Binn. 332 ; Commonwealth v. Bailey, Common- 
 wealth V. Stevens, mipra. The above cases go upon the ground, that it is only necessary 
 to set out so much of the bill as contains the evidence of the contract. If other parts of 
 the bill however, are set out the allegations and proofs must agree. The name of the 
 bank, in such cases, must be truly set out ; and a variance in this respect will be fatal. 
 Knight V. Mitchell, 2 Const. Rep. 668. 
 
 The intention of a party at the time of committing the offense alleged is often an 
 essential ingredient in it ; and when so, it must be proved. 10 Petersdorf 's Abr. 509, 
 note. An indictment, however, for perjury, with an intent to defraud A.,, will be sus- 
 . tained by proof of an intent to defraud A. & B. Veazie's Case, 7 Greenl. 131. So if the 
 allegation is, of an assault upon a female child, with intent to abuse and carnally know 
 her, the defendant may be convicted of the assault with intent to abuse her, though the 
 jury negative the rest of the intention. Rex v. Dawson, Oor. Holroyd, J., York Summer 
 Ass. 1831, 4 Stark. Ev. 1586. (An assault with intent to kill, is sustained by proof of an 
 assault with intent to commit any felonious homicide ; People v. Shaw,'^l Park. Cr. 327.) 
 And if a libel be alleged to have been published with intent to bring the administration 
 of justice into contempt, and also to defame particular persons, the defendant may be 
 convicted if either intent is proved. Rex v. Evans, Oor. Bayley, J., Lane. Spr. Ass. 1821,, 
 4 Stark. Ev. 1586. Where words are of the gist of the offense, they must be proved as 
 laid ; and if there be any particular variance between the words proved and those laid, 
 even if laid as spoken in the third person, and proved to have been spoken in the second, 
 or laid as spoken affirmatively, and proved to have been spoken by way of interrogation, 
 or the like, the defendant will be acquitted. Rex v. Berry, 4 T. R. 217 ; 10 Petersd. Abr. 
 609, note. Where, however, an indictment for perjury stated all the evidence charged as 
 peijury, but other statements not altering the sense intervened between the matters set 
 out ; it was held to be no variance, though in the indictment the evidence appeared \a 
 have been given continuously. Rex v. Solomon, Ryan & Mood. 252. In an indictment 
 
708 Ths Substance only of the Issue needs be proved. [ch. xii. 
 
 *835 *3. Of material and immaterial averments in civil suits. 
 
 A great variety of cases occurs in the books with respect to the 
 necessity of proving averments in pleading. Material averments must be 
 proved. If a variance occurs between a material cverment and the proof, 
 the party upon whom the burden lies of establishing such averment will be 
 defeated. On the other hand, immaterial averments need not be proved. 
 It is a general rule, that a variance between the allegation and the proof 
 
 will not defeat a party, unless it be in respect of matter which, if 
 *836 pleaded, would *be material. If the variance be in respect of matter 
 
 not essential to maintain the action or the plea, it is of no import- 
 ance. (1) 
 
 for perjury in an answer to a bill in chancery, the hill was described as exhibited against 
 three persons only. A., B. and C. ; and, upon being produced, was found to he against four, 
 A., B., C. and D. ; held, that " the indictment had professed to set forth the title of the 
 bill, puch a variance would have been fatal, but that the bill was substantially described, 
 and that is sufficient." Bex v. Powell, Kyan & Mood. 101. 
 
 (In an action for slander, if the defendant justifies a charge of perjury, the evidence in 
 support of the plea or answer must be the same as is required to convict on an indictment 
 for perjury, viz. : either two witnesses or one witness corroborated by material and inde- 
 pendent circumstances ; Woodbeck v. Keller, 6 Cow. 118. The time of the alleged crime is 
 not material : People v. Hoag, 3 Park. Cr. 9. Where the defendant testifies before the 
 grand jury and procures an indictment for forgery against D, and on the trial of the indict- 
 ment testifies to an entirely different state of fiicts, and that his evidence before the grand 
 jury was false and that he so testified to save himself from going to the States prison, he 
 may he convicted on an indictment charging him with perjury before the grand jury, upon 
 his own testimony given on the trial of D ; People v. Burden, 9 Barb. 467 ; Rex v. KniU, 5 
 Barn. & Aid. 929 ; King v. Harris, 5 Barn. & Aid. 936 ; Regina v. Wheatland, 8 Carr. & 
 Payne, 338 ; United States v. Wood, 14 Peters, 440. Perjury can only be assigned of 
 testimony given before a competent tribunal or officer, and the defendant may show 
 under certain limitations, that the alleged tribunal or officer was in fact not a tribunal or 
 officer ; People v. Albertson, 8 How. Pr. 363 ; 9 Wend. 265 ; Bonner v. McPhail, 31*arb. 
 106 ; People v. Travis, 4 Park. Cr. 213 ; may be committed on a. statute arbitration ; 
 Howard v. Sexton, 4 N. Y. 157 ; 1 Denio, 440 ; by an incompetent witness ; Chamberlain 
 V. People, 23 N. Y. 85 ; testifying to facts inadmissible, if objected to ; 4 N. Y. 157 ; or to 
 a fact which was true, where it appears that the witness did not and could not know it 
 to be true ; People v. McKinney, 3 Park. Cr. 510 ; not where a witness testifies to a fact to 
 the best of his opinion, though that opinion be unfounded or unreasonable ; Common- 
 wealth V. Brady, 5 Gray, 78.) As to allegations in respect to matters of inducement, see 
 note 336 ; and of surplusage, see note 339. 
 
 (1) By Abbott, C. J., 3 B. & C. 132. As to the distinction between material and immaterial 
 averments, see Steph. Plead. 98, et seq. ; 3 Wms. Saund. 199, n. ; 1 Smith Lea. Ca. 338, n. 
 
 Note 235. — Where the priority of facts in point of time is wholly immaterial, though 
 the facts themselves are not so, a variance from the priority as alleged will not be fatal. 
 Thus, if a declaration on a policy of insurance allege that after the making of the policy 
 the ship sailed, wh n in fact she sailed before. Peppin v. Solomons, 5 Term R. 496, cited 
 in the text, post. Otherwise where the priority is rendered material by being descriptive 
 of the inj nry sustained : thus, in an action on a policy of insurance at and from Mogadore 
 to London,.the declaration averred, that after the loading of the goods on board, the ship 
 with goods departed ; and afterwards, while the ship was in the course of her voyage, . 
 they were destroyed by perils of the sea ; and the proof was, that before the ship had 
 half her cargo on board, she was driven from her moorings and lost. Per Gibbs, C. J. : 
 " X agree with the principle that where immaterial averments are connected with material 
 averments, though the immaterial averments are not proved, yet if the material ones are 
 proved, the plaintiff is entitled to recover. I subscribe likewise to the authority of the 
 case of Peppin v. Solomons ; for whether the ship sailed before or after the making of 
 the policy "was perfectly immaterial. The material question was, whether she sailed 
 on the voyage. I subscribe likewise to the propr'e y of that decision in Rhind v. Wilkin, 
 son (2 Taunt. 337), that an averment of interest, at the time of effecting the policy, and 
 also at the time of the loss, was satisfied by proof of interest at the time of tli« loss ; 
 because the stating that wou-ld be sufficient, and the allegation of more does not throw 
 on the plaintiff the necessity of proving that allegation. But this is a very different case. 
 This is a jpolicy at and from Mogadore, and embraces as well losses happening at Moga- 
 dore, as losses occurring while the ship might be on her voyage home ; but the two cases 
 demand very different consideration. While tlie ship is on her voyage home, she must 
 be fully rigged, victualed, manned and equipped ; while she is at Mogadore, she need 
 have no other men on board than such as are necessary to prevent fire or the like acci- 
 
CH. XII.] Of Material and Immaterial Averments. 709 
 
 Many of the variances in civil suits, of the kind mentioned in the course 
 of this chapter, might now be corrected by an amendment under the stat- 
 utes which will be presently noticed ; and some of them would be remedied 
 by the general rules of the courts under those amending acts ; but it will, 
 nevertheless, be useful to refer to them, as illustrative of the principle under 
 consideration. 
 
 In an action of tort. The general rule in actions of tort is, that it 
 *837 will be sufficient if part *only of the allegations stated in the declara- 
 tion be proved, provided that what is proyed affords a ground for 
 maintaining the action, supposing it to have been correctly stated as 
 proved ;(1) or, in other words, it is quite enough, if the same ground of 
 action is proved as is laid in the declaration, although not to the extent 
 there stated. (2) There is an exception, however, to this rule, when the 
 allegation contains matter of description. There, if the proof given be 
 different from the statement, .the variance is' fatal. (3) 
 
 In acti<m on contract. In the case of a contract the rule is different. 
 Unless the whole of the contract is proved, as stated in the declaration, a 
 different contract is proved, and a different ground of action; the party, . 
 therefore, cannot be entitled to the judgment of the court. (4) So, in the 
 case of a prescriptive right, when a prescription is alleged in bar, it is an 
 entire thing, and must be proved to the extent laid. (5) 
 
 An averment, which is merely matter of inducement to the action, need 
 not be proved with the utmost strictness and precision. (6) SThus, where an 
 action was brought to recover double the value of goods, whidh had been 
 removed for the purpose of preventing a distress, and the declaration stated 
 a certain sum to be in arrear for rent, it was decided that the plaintiff was 
 entitled to recover, although the notice of distress was for a less sum. (7) 
 Here, whether the particular sum stated in the declaration was in arrear, 
 must be perfectly immaterial ; the damages were not to be measured by 
 the quantity of rent, but by the value of the goods which had been 
 removed. (8) 
 
 dents : no sails, provisions or equipments are necessary. The averment, therefore, of a 
 loss on the voyage would lead the underwriter to inquire whether her state, at the time 
 of the loss, was adapted for such a voyage. Therefore, though both losses are within the 
 policy, each requires a very different state of facts, and different declaration ; and therefore, 
 though we are very sorry to give way to such an objection, I think the verdict must be 
 set aside, and there must be a nonsuit." Dallas, J., and Park, J., concurred. Abithol v. 
 Bristow, 6 Taunt. 464 ; S. C, 2 Marsh. 157. 
 
 (For an example of variances in pleading which have been held fatal, see Rockfeller v. 
 Hoysradt, 3 Hill, 616 ; Wilbur v. Brown, 3 Denio, 356. Under the Code of New York, no 
 variance Ijetween the allegation in a pleading and the proof is deemed material, unless it 
 actu<xUy misleads the adverse party to his prejudice. § 169. The pleading may be 
 amended on trial, or the fact found according to the evidence ; or if the adverse party has 
 been misled, the court may order an amendment on proof that he has been misled, and 
 on terms that shall appear j ust. In other cases the variance will not be considered mate- 
 rial. §§ 170, 171 ; Catlin v. Gunter, 1 Kernan R. 368 ; 2 Seldeu, 97 ; 22 Barb. 331 ; IX 
 How. Pr. 197. See, also, as to the recent rule in England, Metzner v. Bolton, 24 Eng. 
 Law & Eq. Rep. 537. Ante, notes 227 and 239. See Hosley v. Blabk, 28 N Y. 438.) 
 
 (1) By Abbott, C. J., 2 B. & A. 363. See Kemp v. King, Car. & M. 396. 
 
 (2) By Holroyd, J., 2 B. & A. 366. 
 
 (3) By Abbott, C. J., ut supra. 
 
 (4) See Hughes v. Parker, 8 M. & W. 244; Beech v. White, 13 A. & E. 668. 
 
 (5) By Holroyd, J., ut swpra. 
 
 (6) See Fradiey v. Fradley, 8 C. & P. 573. 
 
 (7) Gwinnet v. Phillips, 3 T. R. 643. See also Stoddart v. Palmer, 8 B. & C. 2. 
 
 (8) As to the effect of a misstatement of the premises in a notice to quit, see Doe d. 
 Amlstrong v. Wilkinson, 12 A. & E. 743. 
 
 Note 236. — The rule has been laid down in some of the cases with respect to allega- 
 tions of inducement, that they do not call for the same accuracy and degree of proof as 
 those which are the gist of the action. Thus, in Repsher v. Shane (3 Yeates, 575,) the 
 plaintiff, in an action for indemnity, set forth a recovery against hinj, varying materialLy. 
 
710 The Substauae only of the Issue needs be proved. [ch. xii- 
 
 *838 *An avernment that cannot be struck out must be proved. If an 
 averment may be struck out without destroying the plaintiff'sright 
 
 of action, it -will not he necessary to prove it ; but it is otherwise if the 
 avernment cannot be struck out without getting rid of a part essential 
 
 *839 *to the cause of action ; for then, though the averment be more par- 
 
 in amount from the recovery proved ; and held that inasmuch as the recovery was not 
 alleged as the direct foundation of the plaintiff's suit, hut only by way of inducement, the 
 variance was immaterial. See this and other like cases in note 847. Where the plaintiff, 
 in an action for a lihel, alleged that he was state printer and president of the Mechanics' 
 Bank, it was held the parol proof of these facts was sufficient, without producing the 
 higher evidence existing. "Those facts," say the court, "were only inducement, and 
 introduced as collateral matter, and not as matter in issue ; and the practice is not 
 to require such strict proof as if they were facts in issue. It is every day's practice to 
 give parol proof in such cases, of matters of fact susceptible even of proof of the most 
 solemn kind." gouthwick v. Stevens, 10 Johns. R. 443. We apprehend, however, not- 
 withstanding what is said in the foregoing and other cases, that when the point comes to 
 be critically examined there will be found little or no difference between allegations of 
 inducement and any other, This distinction, which has its foundation in ■^at was said 
 by Buller, J., in Qwinnet v. Phillips, cited in the text, is more nominal than substantial, 
 and serves rather to perplex than enlighten. The principle, judicially determined by this 
 case, was simply that the exact amowrHoi rent, alleged to be in arrear, need not be proved ; 
 not that the general fact of rent heing dvs was unimportant, for that was obviously of the 
 very gist of the action, so much so, indeed, that the plaintiff must have failed without 
 establishing it, but because the exact amount was immaterial. And the case would have 
 been decided in the same way, had the very allegation been made in an action directly 
 against the tenant, to recover the rent in arrear ; there the plaintiff would have been 
 bound by the sum alleged, nor is it necessary, in any case, to prove the exact amount 
 alleged, unless, from the very nature of the claim or charge, it is material. " So, on the 
 other hand, it is certain that whenever an allegation is material and essential, whether it 
 fall within the scope of the term inducement or not, or whatever its connection may be, in 
 the order of time or otherwise, with the other essential averments, it must be proved, 
 according to the precise and particular, though superfluous description with which it is 
 incumbered." 4 Starkie's Ev. 1551, 2, n. x. Thus, if the terms of a contract be stated, 
 though unnecessarily, by way of inducement, they must be proved as laid. Bristow v. 
 Wright, 3 Doug. 665. And where a contract was alleged in the declaration as having 
 been made in reference to a mortgage executed to A., and on the trial the mortgage 
 turned out to have been executed to A. and B., the variance was held fatal. It was urged 
 in this case that the mortgage was mere inducement, but the court thought it made no 
 difference, so long as it was material. Hess v. Fox, 10 Wend. Rep, 436, stated ante. And 
 so in all cases of tort where the contract is alleged, though but by way of inducement. 
 Weall V. King, 13 East, 453 ; Green v. Greenbank, 2 Marsh. Rep. 485 ; Lopes v. De Tastet, 
 J Brod. & Bing. 538 ; Snell et al. v. Moses et al., 1 John. Rep. 96 ; Perry v. Aaron, 1 John. 
 Bep. 139 ; Walcott v. Canfield, 3 Conn. Rep. 194. See post, notes 340, 341. Where an 
 information was filed for a seditious libel, which alleged in an introductory averment, that 
 outrages had been committed in, and in the neighborhood of Nottingham ; it was held 
 sufficient for the prosecutor to show that outrages had been committed in the neighbor^ 
 hood of Nottingham. Rex v. Sutton, 4 Maule & Selw. 532. Bat this was upon the 
 ground that the averment was divisible, and that it was not necessary to prove outraffes 
 in both places. See ante, note 334, and the cases there cited ; also post, note 389. The 
 case of Stoddart v. Palmer (3 Barn. & Cress. 3), cited in the text, turned upon the distinc- 
 tion between impertinent averments, which may be regarded as surplusage, and those 
 which, though immaterial and unnecessary, are yet descriptive, and hence are to be 
 proved as laid. Indeed it is expressly admitted by Abbott, C. J., who delivered the opin- 
 ion, that if the allegation there, respecting the judgment, was to be understood as one of 
 description, it would be " necessary to prove a judgment corresponding in time and all 
 other circumstances with that stated in the declaration." 
 
 It is believed, therefore, that the precision with allegations are to be proved, roust 
 in all cases be determined by reference to their materiality under the particular state of 
 the pleadings ; and that any rule made to depend upon the circumstances of. their being 
 mdueement merely, as contradistinguished from what is essential to the action, will be 
 found liable to too many exceptions for the purposes of practical utility. We venture to 
 suggest also, with deference, that what is said by the court in South wick v. Stevens (supra), 
 with respect to secondary evidence of matters of inducement, can hardly be considered as 
 law ; for if such allegations become material, or the party wUl prove them to enhance his 
 damages, we are acquainted with no case sanctioning a departure from the ordinary rule 
 requiring the best evidence. The decision itself, is sustainable upon the obvious ground 
 that the official character of an individual may be proved by acta and reputation. Ante 
 aote 237. 
 
CH. X1I.1 Of Material and Immaterial Averments. 711 
 
 ticular than it need have been, the whole must be proved, or the 
 plaintiff cannot recover. (1) The distinction is between an averment, 
 the whole of which can be got rid of without injury to the pleading, and 
 an averment of circumstances essential to the cause of action or defense, 
 which are stated with needless particularity. In the latter case, the whole 
 averment must be proved as pleaded. In the former case, either in civil or 
 criminal pleadings, the whole may be considered as struck out, and there- 
 fore need not be proved. ^2) Thus, in the case of Bristow agt. Wright, (3) 
 which was an action agamst the sheriff for taking the goods of a- lodger 
 without leaving a year's rent, the declaration stated some particulars of the 
 demise relative to the payment of the rent, which were negatived by the 
 evidence, and the court held that the variance was fatal. There it was 
 necessary for the plaintiff, in order to show that he was landlord, to set forth 
 a contract between himself and the tenant, and no part of the contract 
 alleged could be struck out, because it was in its nature entire ; though it 
 was admitted that the part of the contract relating to the time of payment 
 need not have been averred. (4) 
 
 (1) By Lawrence, J., 3 East, 453. 
 
 So, in an action against the drawer or indorser of a bill of exchange, dishonored by non- 
 payment, the plaintiflF need not prove an allegation that the bill was accepted, unless that 
 be necessary to show the dishonor of the bill ; which it is not, in the case of a bill payar 
 ble a certain time after date. Tanner v. Bean, 4 Barn. & Cress. 313. 
 
 (3) Coleridge, J., 10 A. & E. 596. 
 
 (3) 2 Doug. 664, explained by Buller, J., in Peppin v. Solomons, 5 T. R. 497, 498 ; and 
 by Lord EUenborough, C J., in Williamson v. AlliSon, 2 East, 450. See, also. Savage v. 
 Smith, 3 W. Bl. 1101 ; Hoar v. Mill, 4 M. & S. 478; Turner v. Hardey, 9 M. & W. 770; 
 Alexander v. Bonnin, Am. Kep. C. P. 337 ; S. C, 4 N. C. 799. 
 
 (4) Note 337. — Mr. Gould, in his excellent work on pleading, recently published, has 
 pointed out the distinction alluded to in the text, in a very clear manner. The following 
 are his remarks upon it : " There is an important distinction to be observed between 
 immaterial and impertinent averments, viz : that the former must, in many cases, be pre- 
 cisely proved ; whereas, the latter require no proof in any case. For the purpose of 
 explaining this distinction, it must be premised that an impertinent averment is a state- 
 ment of matter altogether foreign to the merits of the cause, and which might, therefore, 
 be entirely struck out without injury to the pleadings. An immaterial averment (as con- 
 tradistinguished from an impertinent one) has been variously described, but not always 
 with sufficient precision. In the case of Bristow v. Wright (Doug. 665), Lord MiiTisfield, 
 in commenting upon the distinction between these two species of averments, observes : 
 ' The distinction is between that which may be rejected as surplusage, and which might 
 have been struck out on motion, and what cannot. Where the declaration contains imper- 
 tinent matter, foreign to the cause, and which the master, on reference to him, would 
 strike out, that will be rejected by the court, and need not be proved. But if the verg 
 ground of action is' misstated, as where you undertake to recite that part of a deed, on 
 which an action is founded, and it is mis-recited, that will be fatal.' 
 
 " This language, though sufficiently descriptive of an impertinent averment, affords 
 rather a particular example than a general definition or description of an im/material one. 
 The following is therefore submitted as a substantially correct description of the latter : 
 An immaterial averment is one, alleging, with neediess pa/rticularity or unnecessary dr- 
 
 eumstances, Vhat is material and necessary, and whioli might properly have been 
 *840 stated more generally and without such *circumstance3 or particulars ; or in other 
 
 words, it is a statement of unnecessary pvrticula/rs in connection mth, and, as des- 
 criptive of, what is material." Gould's PI. 160. 161, 163. The author then proceeds to 
 illustrate his observations by an accurate and concise review of Bristow v. Wright, after 
 which he further says : " The same rule, in regard to immaterial averments, was recog- 
 nized in the case of Savage, q, t. v. Smith (3 Bl. Bep. 1101, 1104). This was an action of 
 debt against a bailiff, for extorting illegal fees, on a writ of fieri facias. The declaration 
 described the fi. fa. as having been issued, on a j udgment recovered in B. E. at a specified 
 term, £51, 13, 0, debt, and £8, 10, 0, costs. But the plaintiff having failed, on the trial, to 
 prove such a judgment, the court held that, admitting it to have been unnecessary for the 
 plaintiff to state any judgment (Id. 1104, and md. 5 T. R. 498), that is to say, admitting 
 the statement, in that particular, to have been immaterial, yet being made as descriptmt 
 of the foundation of the f,. fa., it was necessary to be proved as made." Gould's PI. 163. 
 " The rule that immaterial averments must be strictly proved, is, however, by no means 
 universal, though it appears to have been formerly so understood : The principle of th« 
 rule manifestly embraces (it is conceived) no other averments of that class thap. those of 
 
712 The Substance only of the Issue needs be proved. [ch. xii. 
 
 *841 *Avemient that may be Struck Out needs not be Proved. The 
 case of Williamson agt. Alison(l) illustrates the other part of the rule, 
 
 which a variance may be predicated. And the rule itself is now to be understood as 
 limited by that principle. Id. 164, 165. 
 
 " The rule, then, as limited by the more modern authorities, appears to be that no imma- 
 terial averment requires precise proof, unless the failure of such proof would occasion a 
 Da?TOmc« between the pleading and the proof; or (in different language), strict proof of 
 such averment is not, at this day, necessary, unless the subject of the averment is a 
 record — a, written instrument — or (as I conceive) an express contract. Inasmuch as these 
 are in strictness, the only subjects of variance (properly so called) when the mistake in 
 the pleading is in a point n,ot in itself material." Id. 164. 
 
 The decisions relating to the subject of the foregoing extract, both American and 
 English, will be found to exhibit considerable want of uniformity ; and this has probably 
 arisen in some measure from not attending to the reason of the distinction taken in 
 Bristow V. Wright, and Williams v. Allison, cited in the text. See the cases cited post, 
 notes 340 and 341. Where the plaintiff declared upon a special contract, alleging that he 
 was indebted to the defendant's testator in a certain sum secured to the testator by bond 
 and mortgage executed by the plaintiff ; and that it was agreed the plaintiff should convey 
 the mortgaged premises to the testator — the latter to discharge the plaintiff from his indebt- 
 edness, to sell the premises, and after deducting the amount due him, pay the surplus to the 
 plaintiff; and on the trial it turned out that the bond and mortgage were executed by the 
 plaintiff and another; the court, in relation to the variance, adopted the rule as stated by 
 Mr. Chitty (1 Chitty's PI. 395), that every allegation in an inducement' which is material, 
 and not impertinent,iOr foreign to the cause, and which cannot be rejected as surplusage, 
 must be proved as alleged. And it is added ; " This is particularly true in setting forth 
 written instruments. As this count is framed, the allegation which respects the existence 
 and canceling the mortgage, cannot be stricken out as surplusage ; and if not, it should 
 have been truly stated." Hess v. Fox, 10 Wend. 436, 437. It has been held that, in an 
 action on a bill or note, payable at a particular time and place, if the plaintiff aver speci- 
 fically that a demand was made at the time and place, he will be bound to prove it. 
 Conn's Adm'r v. Gano's Bx'r, 1 Hamm. Rep. 483. The court concede that it was wholly 
 unnecessary to make this averment ; but they say, " being made, it must be proved : in 
 an action against the drawer or indorser of a bill, it is not necessary to state that the 
 drawee accepted it ; but Chitty says, if it be stated, it must, in an action against the 
 drawer, be proved ;" and they cite Chitty on Bills, 459. Pease, J., dissenting in the above 
 case, states his views as follows : " The true distinction between an immaterial averment, 
 which it is necessary to prove, and one which it is not, I consider to be this : when the 
 plaintiff avers in his declaration a fact, the converse of which being pleaded or proved by 
 the defendant, would be a defense to the action, then the averment ought to be proved. 
 But if the fact averred be every way immaterial — if it form no part of the plaintiff's 
 right to recover, and if the converse would constitute no defense to the action, then it 
 would be not only usej,ess to prove it, but would be an unnecessary waste of time and 
 money, and a trifling with the administration of justice." This test is, perhaps, a true 
 one in the main, but admits of qualification. Instances are of frequentvoccurrence, where, 
 through the inadvertence of the pleader, an averment has been made of unnecessary par- 
 ticulars, " in connection with, and as descriptive of, what is material," and where a failure 
 to prove such particulars resulted fatally. And yet, it would be hard to perceive how 
 those particulars can be said to form an essential part of the plaintiff's right to recover ; 
 or the converse of them to constitute a defense. Where a declaration on a bill of 
 exchange, by the indorsees against the acceptor, alleged that it was indorsed to the plain- 
 tiffs, as surviving assignees of A. B., after his bankruptcy ; it was held that the plaintifla 
 were bound to establish both points, viz : that the bill was indorsed after the bankruptcy 
 of A. B., and to the plaintiffs as surviving assignees, &e. ; though if the declaration had 
 been general, in the names of the plaintiffs, " the possession of the bills by them would 
 ■have done." Bernasconi v. The Duke of Argyle, 3 Carr. & Payne, 89. 
 
 It may not be improper, in connection with the above cases, to introduce the following, 
 though they have no very intimate bearing upon the subject we have been considering. 
 In an action on a bill of exchange, by indorsee against drawer, if the plaintiff aver actual 
 notice of dishonor, he will not be allowed to recover on proof of due diligence merely, 
 Bakely v. Grant, 6 Mass, Rep. 386. An averment of actual notice, however, will be satisfied 
 by proof that notice was given before action brought ; although, from the fact that the 
 party could not be found, it was not given at the proper time. Harris v. Richardson, 4 
 Carr. & Payne, 533. And proof of a waiver of notice will support the allegation of actual 
 notice. Taunton Bank v. Richardson, 5 Pick. 436 ; Norton v. Lewis, 3 Conn. Rep. 476 ; 
 Williams v. Matthews, 3 Cowen's Rep. 353. 
 
 (1) 3 Bast, 446. See also Bromfiold v. Jones, 4 B. & C. 880 ; Jackson v Alloway 6 M 
 & G. 943 ; Tempest v. Kilner, 3 C. B. 300 ; Att, Gen. v. Clerc, 13 M. & W. 640 ; Cooper v' 
 Blick, 3 Q. B. 915. ^ 
 
CH. XII.] Of Material and Immaterial Averments. 713 
 
 namely, that where an averment may be struck out it need not be proved. 
 That was an action on the case in tort, for the breach of a warranty in selling 
 goods unfit for sale, and the declaration averred that the defendant knew 
 the goods to be in an unfit state, of which fact there was no evidence at 
 the trial ; but the court held that such proof was unnecessary ; for if the 
 whole averment respecting the defendant's knowledge of the unfitness for 
 sale were struck out, the declaration would still be sufficient to entitle the 
 plaintiff to recover, upon the breach of the warranty proved. 
 
 In like manner, in the case of Gladwell agt. Steggall,(l) where the 
 
 (1) 5 N. C. 733. 
 
 Note 238. — From wliat has been stated in the next preceding (American) note, we may 
 venture to lay down the rule thus : the omission to prove circumstances alleged, not 
 essential to the claim or charge, and which might have been wholly omitted, is not 
 material, provided the circumstances so alleged do not operate by way of description of 
 others which are essential. See 4 Starkie's Ev. 1534 ; Stevens v. Bigelow, 12 Mass. Rep. 
 434. Accordingly, where a declaration for {in injury to the reversionary interest of the 
 plaintiff in land, contained an averment that the premises at the time of, &c., and still 
 were, in the occupation of A, B.; whereas the occupation of A. B. had ceased before the 
 commencement of the suit; held, that the variance was immaterial ; the possession of A. 
 B. at the time of the inj ury being properly described. Vowles v. Miller, 3 Taunt. 137. 
 In an action on a promise to indemnify against a particular act ddne at the request of the 
 defendant, the plaintiff, by way of showing that he had been damnified, set forth a judg- 
 ment obtained against him, and alleged that the suit was commenced by " a writ commonly 
 called an attachment of privilege ;" the allegation as to the writ was held surplusage, and 
 not necessary to be proved. Allaire v. Ouland, 2 John. Gas. 52. Kent, J., dissenting, 
 considered the. averment of the writ an immaterial one, and not impertinent. He says, 
 the rule requiring immaterial averments to be proved was intended to inculcate brevity 
 and precision in pleading, and to serve as a rod over counsel who should incumber 
 *842 the record ; that the writ was *connected with the cause of action, and as it was 
 alleged, the plaintiff should be held to prove it. Id. And where the action was against 
 a sheriff, for taking insufficient sureties in replevin, and it was alleged that the party 
 replevying levied his plaint at the next county court, to wit : at a county court holden, 
 &c., before A., B., &c., &c.; and the evidence was, that the court was holden before other 
 persons ; held, the material allegation being that the party levied his plaint at the next 
 county court, the residue, as to the names of the suitors, was surplusage, and therefore the 
 variance might be disregarded. Draper v. Garratt, 2 Barn. & Cress. 2. See Judge v. 
 Morgan, 13 East, 547 ; and see post, note 247. Where the plaintiff's declaration was upon 
 a contract for the sale of the whole of his crop of tobacco, and averred a delivery of a 
 given quantity, and readiness and an offer to deliver the residue : held, that proof of his 
 having delivered the whole crop, save a small quantity not merchantable, sustained the 
 declaration; the only material averment, say the court, *as the quantity delivered, 
 and that was proved ; the other part of the averment taken separately was immaterial, and 
 not calculated to mislead. Cabiness v. Brown, 1 Alab. Rep, 41. Likewise, where the 
 declaration stated that the defendant sold to the plaintiff certain premises, which were 
 held by one F. under an agreement with the dcfen'dant for four years, by which agreement 
 F. was bound, among other things, to leave the premises in good tenant-like order and 
 condition ; and that the defendant agreed to do all such other tenantable repairs as 
 should not be done by F.; concluding with an averment, that P. did not leave the premises 
 in good repair at tJte expiration of h^r tenancy, but neglected, &c., in consequence of which 
 the defendant was called upon to repair, and refused, &c. Best, J., was of opinion that the 
 the words, " at the expiratioi> of her tenancy," might be rejected as surplusage, and need 
 not be proved ; because it was immaterial when P. left the premises ; whenever it was, 
 whether before or after the term fixed by F.'s lease, the defendant should then have made 
 the repairs, and might have entered for that purpose. Goodson v. Gouldsmith, 2 Carr. & 
 Payne, 555. 
 
 In a special action on the case, the plaintiffs declared that the defendant contriving, 
 and willfully and mtUidouslp intending, &c., dug up the soil of a certain lot, whereby the 
 foundation of the plaintiff's house was injured ; it was held, that evidence of negligence 
 merely, on the part of thcdefendant, would support the declaration, the allegation of 
 malice being surplusage. Panton v. Holland, 17 John. Rep. 92. So, in an action for an 
 infringement of the plaintiff's right to the use of certain water, the declaration alleged 
 that the acts complained of were done maliciously, wantonly, &c., and it was held, that as 
 there was a perfect cause of action, independent of the malice alleged, proof of it was not 
 necessary. Twiss v. Baldwin. 9 Conn. Rep. 291. And in an action for a libel, where the 
 plaintiff alleged, that before the publication of the libel, the plaintiff's carriage came in con- 
 tact with a carriage in which E. S. was riding ; and that the accident happened without any 
 default on the part of the plaintiff, and then alleged a publication of the libel of and 
 
 Vol. L 90 
 
714 The. Substance only of the Issite needs be proved. [ch. xjtx. 
 
 .*843 *declaration stated that the plaintiff, an infant sning by her prochein 
 ami, had employed the defendant, a surgeon, to cure her, and then 
 claimed damages for neglect, it was held to be immaterial by whom the 
 defendant was employed, though the defendant by his plea had traversed 
 that allegation ; and even if it were material,^ the plaintiff's having submitted 
 to the defendant's treatment was sufficient proof of the allegation of employ- 
 ment by her. 
 
 4. Of material and immaterial averments in indictments. 
 
 The same rule is applicable to averments in an indictment. If an aver- 
 ment may be entirely omitted, without affecting the charge against the 
 prisoner, and without detriment to the indictment, it will be considered as 
 surplusage, and may be disregarded in evidence. (1) 
 
 Thus, where the prisoner was charged with a robbery near the highway, 
 and the robbery was proved, but not near the highway(2) — where a robbery 
 was averred to have been committed in the house of a certain person named, 
 and the name of the owner was not proved(3) — and where the offense of 
 arson was stated in the indictment to have been committed in the night 
 time, and was proved not to have been in the night time(4) in these cases, 
 all the judges were of opinion that the convictions were proper. (5) So, 
 
 concerning the accident ; upon tlie trial it appeared that the accident did happen through 
 the plaintiff's default ; yet held to be no variance, so as to"Bar the plaintiff from recover- 
 ing, in respect to part of the lihel not justified ; the allegations being divisible, and the 
 averment that the accident happened without the plaintiff's default, being an immateri^ 
 circumstance. Churchill v. Hunt, 2 Barn. & Aid. 685. So, in trespass, for driving against 
 the plaintiff's cart, an allegation in the declaration that the plaintiff was in the cart, was 
 held immaterial, and not necessary to be proved. Howard v. Peete, S Ghitty's Rep. 315. 
 
 In Wilson v. Codman's Ex'r (3 Cranch, 193), the plaintiff declared on a note assigned to 
 him by a writing indorsed thereon, and alleged the assignment to have been made for 
 value received ; the court held that this averment was not descriptive of tlie indorsement, 
 but related to a fact dehors the instrument, and being altogether immaterial, need not be 
 proved. M'Williams v. Smith, 1 Call's Rep. 106, S. P. Where, however, the averment 
 of value received in a declaration is descriptive of a writing which, when produced, is 
 found not to contain those words, the variance will be fatal. See Saxton v. Johnson, 10 
 John. Rep. 418, cited post, note 347, and several other cases there stated, sustaining the 
 same principle ; and see that aiote as to the doctrine of surplusage in its application to 
 averments descriptive of written instruments generally. In a declaration on a note 
 payable by installments, the plaintiff averred that two installments had elapsed, and 
 that the whole note was d«e ; on demurrer, it was held, that the averment of the whole 
 note being due, might be rejected as surplusage, and judgment given for the amount of 
 the two installments. Tucker v. Randall, 3 Mass. Rep. 383. And where, «pon a note 
 payable in chattels, the declaration concluded with the words ordinarily used in declaring 
 upon negotiable promissory notes, " whereby and by force of the statute," &c. ; on motion 
 in arrest of judgment, held, that tlie reference to the statute might be rejected as sur- 
 plusage, Thomas v. Roosa, 7 John. Rep. 461. In Drown v. Smith (3 N. Hamp. Rep. 
 399), the objection was taken at the trial, under a declaration upon a similar instrument, 
 alleging that the defendant promised " by his certain note," &c. ; and the court held, 
 that those words might be rejected, and so the count would stand upon the contract 
 evidence by the written instrument. Also, where a defendant was described in the 
 declaration as trader and administrator, and the bond upon which the action was founded, 
 when produced on oyer, appeared to have been given by the defendant in his individual 
 capacity ; held, on demurrer, that the description of him as administrator, might be 
 regarded as surplusage. Clark v- liowe, 15 Mass. Rep. 476. 
 
 (An allegation in respect to time, though not material, may be taken as an admission. 
 Andrews v. Chadbourne, 19 Barb. 149. But, in general, the time at which plaintiff or 
 defendant alleges an act to have been done, is not material ; and it may be shown to have 
 been performed at an earlier day. Lyon v. Clark, 4 Selden, 148 ; Lester v. Jewett, 1 Ker 
 nan, 460 ; Relyea v. Beaver, 34 Barb., 547 ; Dubois v. Beaver, 35 N. Y. 133. In this case, 
 acts of trespass were allowed to be proved prior to the first day laid in the complaint. But 
 there are cases in which both the time and place stated are materiaJ, and must be proved. 
 Thatcher v. Morris, 11 N.Y., 437 ; 6 Barb. 429.) 
 
 (1) See by Coleridge, J., 10 A. & E. 596, supra, p. 839. See also R. v. Holt, 3 Lea. 59a 
 
 (3) R. V. Wardle, 3 East P. C. 785 ; S. C, R. & R. Cr. C. 9. See also R. v. Summer, Id. 
 
 (3) R, V. Pye, 2 East P. C. 785, 786 ; R. v. Johnstone, Id. 
 
 (4) R. v. Minton, 3 East P. C. 1031. 
 
 (5) For other examples, see 2 Rubs., Cr. t( M., by Greaves, bk. 6, ch. 8, § 8, p. 7861, et »eq. 
 
CH. XII.] Of Material and Immaterial Averments. 715 
 
 where an indictment for perjury alleged that F. C. A. exhibited his hill in 
 the Exchequerj and that the defendant put in his answer, intituled " The 
 answer of A: B. to the bill of complaint of J. C. A," the court refused to 
 arrest the judgin.ent.{l) And in a similar indictment against B. for perjury 
 committed in an answer to a bill in chancery, where the bill was stated to 
 have been filed by A. against B. and another, though ife fact it was 
 *844 filed against him and two others, the variance was held to *be imma- 
 terial, as the perjury was assigned on a part of the ans-^er which 
 was material between A. and B. (2) 
 
 Material averments. But where the averment in the indictment is sen- 
 sible and material, or is descriptive of the identity of that which is legally 
 essential to the charge, it ought to be regularly proved; thus, upon an 
 indictment for stealing four live tame turkeys, the judges held, that the 
 word " live " was a description of the quality of the thing stolen, and that 
 the prisoner could not be convicted upon proof of stealing dead turkeys. (3) 
 So, where the prisoner was indicted for a burglary in the house of J. D. with 
 intent to steal the goods of J. W., and it appeared in evidence that no such 
 person had any goods in the house, but that the name of J. W. was put by 
 mistake for J. D., the judges held, that it was material to state truly the 
 property of the goods, as without such statement the description of the offense 
 would be incomplete ; and on account of this variance the prisoner was 
 acquitted. (4) 
 
 (1) E. V. Eopep, 6 M. & S. 327 ; S. C, 1 Stark, B. 518. 
 
 (2) K. V. Benson, 2 Camp. 509. See also E. v. Powell, E. & M. N. P. E. 101 ; E. v. BaUey, 
 7 C. & P. 264 ; E v. Pearse, 3 B. & A. 579. 
 
 (3) E. V. Edwards, E. & K. Cr. C. 497. 
 
 (4) E. v. Jenk. 2 East P. C. 514. 
 
 Note 339. — There is no distinction between civil and criminal proceedings in respect to 
 the general doctrine of surplusage, except, perhaps, in the latter, courts will he more 
 strict in requiring proof of matters alleged than in the former. Per Livingston, J., United 
 States V. Porter, 3 Day's Eep. 286. We shall, therefore, merely refer the reader to our 
 two next preceding notes, and introduce a few additional illustrations particularly bearing 
 upon the present subject. We have seen {ante, note 230) that, in an indictment for obtain- 
 ing goods by false pretenses, it is not necessary to prove all the pretenses alleged ; and if 
 more pretenses are set out than can be proved, or than are material to establish the ofifense, 
 they may be rejected as surplusage. The People v. Haynes, 11 Wend. 557, 565. Where an 
 indictment alleged that the defendant, in and upon one P. Harvey, did make an assault, 
 and her the said P. Bunt then and there did beat, wound and ill treat, with intent her the 
 said P. Hmney to ravish ; it was the court's opinion that the whole clause relating to 
 the beating might be regarded as surplusage. Commonwealth v. Hunt, 4 Pick. 253. The 
 ground of this opinion, though it is not stated in the report, was probably the inconsist- 
 ency of the passage with the other parts of the indictment. The rule in such cases is, 
 that an inconsistency in material allegations vitiates the indictment, but not so if the 
 entire allegation, in which the discrepancy consists, might have been omitted ; for then, 
 upon the maxim, " viile per irmtik non mtiatur," the allegation may be considered as 
 surplusage, and disregarded. Starkie's Cr. PI. 274, 275. 
 
 It was the ancient doctrine that no indictment, concluding contra formam statuti, could 
 be maintained as an indictment at common law ; but this has long since been exploded ; 
 and now, if an offense be charged as having been committed contrary to the statute, and 
 there is either no such statute or the offense is not embraced witliin it, the accused, pro- 
 vided enough is charged, may be convicted on proof of an offense at common law, and the 
 reiference to the statute will be treated as surplusage. Eespublica v. Newell, 3 Yeates, 
 407,414; Knowles v. The State of Connecticut, 8 Day's Eep. 103; Commonwealth v. 
 Hoxey, 16 Mass. Hep. 385 ; Pennsylvania v. Bell. Addis. Eep. 156 ; 1 Chitty's Cr. Law 289 ; 
 1 Saund. 135, n. 3. And the general rule is, that all allegations which are whoMy super- 
 fluous need not be established, but may be thrown out of the question altogether. 1 
 Chitty's Cr. Law,' 557. 
 
 But if the averment be material — that is, if it be connected with the charge — it must 
 be proved. 1 Chitty's Cr. Law, 557. Thus, in an indictment for "a riot in pulling down a 
 house, the name of the owner is material ; and therefore, where the indictment charged 
 that it was the dwelling-house of A., and it turned out that A. was a feme covert, held 
 that the conviction was erroneous. The State v. Martin, 3 Murph. 533. See Queen v. 
 Soley, 3 Salk. 395. So, in an indictment for larceny of goods, the owners name muat be 
 
716 The Substance only of the Issue needs be proved. [ch. xii. 
 
 *845 *5. Of variances in civil suits 
 
 Where the action is brought upon a contract, the contract ought to be 
 stated correctly, and proved as laid^ and if any part of the contract proved, 
 vary materially from that stated in the pleadings, the whole foundation of the 
 action fails, since the contract is entire and indivisible. (l) If the contract, 
 therefore, for the breach of which the action is brought, was in the alternative 
 at the option of the defendant (as to deliver this or that quantity of goods at 
 on^ time, and the.remainder at another), it ought to be so stated ; for if the 
 declaration states an absolute contract, and the proof is of a contract in 
 
 the alternative, the plaintiff cannot recover, although the defendant 
 *846 may have determined his option. (2) In an *action against a carrier 
 
 on a general undertaking to carry safely, proof of a contract to carry 
 safely, fire and robbery excepted, is a variance. (3) 
 
 proved as alleged ; and where they were laid as the property of H., and turned out to 
 be the property of H. & E., partners, the variance was admitted to be fatal. Common- 
 wealth v. Trimmer, 1 Mass. Rep. 476. In New York, however, it is expressly provided 
 by statute, that, in an indietmerit for any offense committed upon personal property 
 belonging to several owners or partners, it shall be sufiBcient to allege such property to 
 belong to any one or more of such partners' or owners, without naming all. 2 R. S. 727, 
 § 46. Whether, if the name of the owner be not laid with an aUv^ dictus, it is suflScient 
 to prove that he is commonly known by the name alleged, where it appears his name of 
 baptism is different ; quere. State v. France, 1 Tenn. Kep. 434. An indictment for per- 
 jury, alleged to have been committed before A., is not sustained by proof of perjury before 
 A. & T. The State v. Mayson, 1 Const. Rep. 300. 
 
 And allegations which are not impertinent or foreign to the cause must be proved, 
 although a prosecution for the offense charged might be maintained without such allega- 
 tions. Thus, an indictment for stopping the mail, which alleged a contract between the 
 postmaster-general and the mail carrier, was held not supported without proof of such 
 contract. United States v. Porter, 3 Day's Rep. 283. 
 
 (So where the indictment alleges the commission of the crime — arson — in a certain ward 
 of a city, the place is thereby rendered material. The People v. Slater, 5 HiU, 401. But, 
 on the trial of an indictment for larceny, it is not necessary to prove that the property was 
 taken from the actual owner ; the crime may be committed by taking it feloniously from 
 a bailee, and the owner may be convicted for stealing his own goods. The People v. 
 Wiley, 8 Hill, 194. See, also, Ward v. People, 8 Hill, 395.) 
 
 (1) 1 T. R. 240 ; 3 T. R. 645. The following are the principal modern cases on this sub- 
 ject : Bristow v. Wright, 3 Doug. 664 ; Carlisle v. Trears, Cowp. 671 ; Churchill v. Wilkins, 
 
 1 T. R. 447 ; Durston v. Tuthan, cit. 3 Id. 67 ; Littler v. Holland, Id. 590 ; Hockin v. Cooke, 4 
 Id. 814; Leery v. Qoodson, Id. 687; White v. Wilson, 2 B. & P. 116; Penny v. Porter, 
 
 2 East, 3 ; Brown v. Sayce, 4 Taunt. 320 ; Pool v. Court, Id. 700 ; Cohen v. Hannam, 5 
 Id. 101 ; Arnfield v. Bate, 3 M. & S. 173 ; Sequier v. Hunt, 3 Pri. 68 ; WUdmon v. Glossop, 
 1 B. & A. 9 ; Tucker v. Cracklin, 2 Stark. R. 385 : Parker v. Palmer, 4B. & A. 387 ; Strong 
 V. Rule, 3 Bing. 315 ; Hughes v. Parker, 8 .M. & W. 244. The following are cases on 
 promissory notes and bills of exchS,nge ; Whitwell v. Bennet, 3 B. & P. 559 ; Gordon v. 
 Austin, 4 T, R. 611 ; Young v. Wright, 1 Camp. 139; Jones v. Mars, 2 Id. 305 ; Roche 
 V. Campbell, 3 Id. 347; Hodge v. Fillis, Id. 468; Hutchinson v. Piper, 4 Taunt. 810; 
 Exon v. Kussell, 4 M. & S. 505 ; Mountstephen v. Brooke, 1 B. & A. 324. 
 
 (2) Penny v. Porter, 2 East, 2. And see Id. 134; Cooke v. Munstone, 1 N. R. 351. 
 
 (3) Latham v. Rutley, 3 B. & C. 30. 
 
 Notes 240. — The doctrine of the text has been almost universally recognized ; and the 
 occasional diversity exhibited by the cases, will be found to resillt mainly from the differ- 
 ent views which courts have entertained of its application, rather than from any doubts 
 as to its existence. " That the allegata and probata should correspond, is a rule as sound 
 in principle, as it is well established in precedent. To permit the plaintiff in an action 
 to recover on evidence materially variant from his allegations, would defeat the purposes 
 of pleading. The defendant could neither be enabled to rebut such proof, nor plead a 
 recovery in bar, in a future action for the same demand ; and though the privity and 
 intercourse between the parties, may often enable them to know, without having recourse 
 to pleadings, what is the nature of the claim or defense, yet a departure from a rule of 
 general utility cannot be justified, because in particular instances it has no practical effect. 
 But if the parties themselves could be presumed, from their privity, to know the true 
 cause of action, to avail themselves of a judgment, as a bar of a future action for the 
 same cause, they must be able by legal averments to make the identity of the cause of 
 action known to a judicial tribunal, who are strangers to their transactions." Query v. 
 Brindlinger. Litt. Sel. Cas. 87 per Cur. But it is sufficient, in general, if the contract 
 given in evidence agree in substance and legal effect with that stated in the declaration ; 
 
CH. xii.] Of Variances in Civil Suits. 717 
 
 and though the proof discloses circunistances beyond what is contained in the declaration, 
 the variance vpill not be regarded, provided the matter omitted do not qualify or alter in 
 any respect those which are alleged as the foundation of -the action. Thus, a declaration 
 for not delivering a quantity of gum Senegal, is sustained by proof of a contract to 
 deliver rough gum Senegal ; it appearing that all gum Senegal on its arrival is called 
 rough. Silver v. Hesseltine, 1 Chitty's Rep. 38. And where, in an action upon a contract 
 of warranty in the sale of a quantity of oil, the declaration alleged that the defendant 
 undertook, that the oil was of a " good and superior quality, to wit, prime quality winter 
 oil ;" and the evidence offered was, that the defendant warranted the oil to be prime 
 quality winter oil ; it was held, that there was no variance between the contract as 
 alleged, and the evidence, because the words under the scilicet were to be regarded as the 
 substantial averment. Hastings v. Lowring, 8 Pick. 214. So where the plaintiffs 
 declared setting forth an exchange of vessels, between them and the defendants, and 
 alleging that the defendants agreed to pay $6,500, as the difference ; proof that the agree- 
 ment was to pay in notes at four, six and eight months, the suit being brought after the 
 notes fell due, was deemed to be no variance. Porter v. Talcott, 1 Cowen's Rep. 359, 380, 
 per Woodworth, J. These qualifications respecting the mode of payment are introduced 
 for the benefit of the purchaser, and during the time to whieh they delate, the seller 
 must sue on the special contract ; when that time is expired, the money is actually due. 
 Per Woodworth, J., Id. And see Brook v. White, 4 Bos. & Pul. 830, 332, per Chambre, J. 
 And where the promise alleged was, to pay certain arrearages, and it turned out in proof 
 that the promise was to pay arrearages, and also what the plaintiff had. to pay a certain 
 company ; it was held, there was no material variance, for " proof of a promise beyond 
 what is averred," say the court, " but embracing that also, cannot prejudice the defendant. 
 It is not setting forth a diBFerent promise, but failing to set forth the whole, to the preju- 
 dice of the plaintiff only." Alvord v. Smith, 5 Pick. 232, 235. See post of the text, and 
 the cases the^e cited ; and Henry v. Clelland, 15 John. Re^. 400, cited post, note 247. 
 
 But the legal effect ana identity of the contract must be cautiously kept in view, und 
 any- variance in this respect, relating to the promise or undertaking upon which the action 
 is predicated, or the consideration thereof, will be fatal. Thus, an allegation of a promise 
 to pay absolutely, on the death of J. S., cannot be sustained by proof of a promise to pay 
 on the death of J. S., provided he left the promisor sufficient, or he was able to pay it. 
 Roberts v. Peak, 1 Burr. 325. So, if the declaration alleged a promise by the .defendant, 
 to sell his tallow to the plaintiff, at four shillings per stone, and the proof is, that he 
 promised to sell at that price, but that if the plaintiff gave more to any one else, he shonid 
 give the same to the defendant ; the variance will not be overlooked. Churchill v. 
 
 Wilkins, 1 T. R. 447, cited In the text. And a declaration on a note with a proviso 
 *847 or condition, should set forth the condition, or the variance will be fatal *Whitaker 
 
 V. Smith, 4 Pick. 83. The case of a bond, which undoubtedly may be declared on 
 without setting forth the condition, is different ; for the defendant in such case is entitled 
 to oyer, both of the bond and the condition ; but there is no such right in relation to 
 simple contracts, and this shows the necessity of setting out the whole. The defendant 
 is entitled to know the whole of the contract on which he is sued, in order that he may 
 determine how to defend himself. Id. per Parker, C. J. And where the declaration was 
 upon a promise to pay 8100, for improvements upon lands, and the promise proved was to 
 pay so much, if the promisor obtained a contract for the land from the landlord, the vari- 
 ance was held fatal. Lower v. Winters, 7 Cowen's Rep. 263. So a promise in the 
 alternative will not sustain a declaration upon a promise absolutely. Per Hosmer, C. J., 
 in Curley v. Dean, 4 Conn. Rep. 259, 265. See also the cases cited in the text. Thus, 
 where the contract was alleged as absolute to transport twenty tons, and the one proved 
 was to transport fifteen or twenty tons, the variance was held fatal. Stone v. Knowlton, 
 3 Wend. Rep. 374. So where the plaintiff's declaration contained counts upon an 
 indebitatus asswmpsit and qiumtum valiant, for meat, lodging, nursing, &c., furnished by 
 the plaintiff for the defendant's infant daughter ; and he proved a contract in the alterna- 
 tive, by which the defendant agreed to bind his daughter to him. or pay so much for 
 boarding, nursing, and clothing her, as her board, &c., were worth ; held a fatal variance. 
 Williams v. Kinnard, 1 Alabama Rep. 196. 
 
 Where the plaintiff averred a demise for three years, held that such, an averment could 
 not be sustained by proof of a lease for one year certain, and two years' further possession 
 on the same terms, by consent of the landlord. Alexander v. Harris, 4 Cranch, 299. See 
 this case and others cited ante. So an allegation that the defendant imdertook to tran- 
 sport certain goods to C, at his own risk against all danger, except dangers of the seas, 
 is not supported by proof that the defendant took on himself all risks, except dangers of 
 the seas ; for a liability for the risk of transportation, except that of the seas, is materially 
 different from liability for all risks, with the same exception. Bridge. v. Austin, 4 Mass. 
 Rep. 115. And the statement of a general warranty as to the soundness of a horse is not 
 supported by proof of a warranty, except a, kick on the leg. Jones v. Cowley, 4 Barn. 
 & Cress. 445. A declaration that certain machines were warranted to be good and mer- 
 chantable, is not sustained by proof that they were warranted to be equal to any in 
 America. Qoulding et al. v. Skinner, 1 Pick. i62. A contract to deliver soil cannot be 
 
718 The Buhstance only of the Issue needs he proved. [ch. xii. 
 
 declared on as a contract to deliver BoU or breeze, if it appear that soil and breeze are 
 diferent articles. Clark v. Manstone, 5 Esp. Rep. 339. Nor will a declaration for the sale 
 and delivery of pine timber, be supported by proof of the sale and delivery of spruce 
 timber. Robins v. Otis, 1 Pick. 368. Nor a declaration on a promise to pay money, by 
 
 ?roof of a promise to deliver certificates of debenture. Baylies et al. v. Fettyplace et al., 
 Mass. R. 335. So a declaration, on a promise to deliver cloth to the plaintiff, is not 
 supported by evidence of a promise to deliver cloth to him at the defendant's factory. 
 Clark V. Todd, 1 Chip. R. 213. And an allegation of a promise to pay |1,000 in a reason- 
 able time, is essentially different from a promise that if the plaintiffs shall reconvey certain 
 land, the defendant will pay them the purchase money, which was %\ ,100, or so much thereof 
 as he shall have received. Bunnel v. Tain tor's Adm'r, 5 Conn. Rep. 373. Proof of a 
 promise to pay as soon as A. came, will not sustain a declaration upon a promise, to pay 
 in March or April. Victoire v. Moulin, 8 Mart. Lou. Rep. 400. So a promise to pay the 
 coming week will not support an allegation of a promise to pay when requested. Law- 
 rence V. Baker, 5 Wend. Rep. 301 ; Query r. Brindlinger, Litt. Sel. Gas. 84. And an 
 allegation that rent was to be paid on demand, is not supported by proof that it was to 
 }je paid at the end of the year. Taylor v. Hickman, Litt. Sel. Cas. 434. Nor will a 
 promise to pay on a particular day, sustain an allegation of a promise to pay in a reason- 
 able time. Willoughby, v. Raymond, 4 Conn. Rep. 130. And proof of a promise to an 
 executor, varies from an allegation of a promise to the testator. Glenn's Ex'rs v. M'Cul- 
 lough, 3 M'Cord's Rep. 313. So a promise to a husband and wife jointly, will not sustain 
 an allegation of a promise to the wife before marriage. Bunnel v. Taintor's Adm'r, 5 Conn. 
 Rep. 373. Where the declaration stated that the defendant was to pay the plaintiff £90, 
 one-half in cash and the other in whiskey and horse flesh, to be between the value of twenty- 
 one pounds and twenty-five pounds ; and the agreement proved was, that the £90 were to 
 be paid one-half in cash and the other in whiskey and horse flesh, to be between the 
 value of twenty and twenty-five pounds ; the variance was held fatal. Rogers v. Estis, 
 Litt. Sel. Cas. 2. Under a declaration in assumpsit, upon a promise by a consignee or 
 *848 bailiff to render a reasonable account, the plaintiff cannot give in evidence a *contract 
 to account in a special manner ; if the undertaking be special, it must be so laid, or 
 the variance' will be fatal Pope et al. v. Barrett, 1 Mason, 117. Otherwise,- however, 
 it seems, in actions of account. Id. And see Robert v, Andrews, Cro. Eliz. 83 ; Godfrey v. 
 Saunders, 3 Wils. 73. In Louisiana, where the petition stated that the plaintiff sold the 
 defendant one hundred barrels of flour, half fine and half superfine, at thirteen dollars per 
 barrel, &c.; evidence that the defendant purchased 100 barrels of flour of the plaintiffs, which 
 were worth thirteen dollars per barrel, was held sufficient to sustain the allegation. Gilly 
 et al. V. Henry, 8 Mart. Lou. Rep. 403. And see Boyd et al. v. Howard, 3 Mart. Lou. Rep. 
 (N. S.) 386 ; S. C, 4 Mart. Lou. Rep. (N. S.) 178, in which the general ruleis laid down, that 
 a vendor who alleges a stipulated and certain sum as the price of the sale, may give evi- 
 dence of the value of the objects sold. Where the plaintiff declared upon a contract, by 
 which he was to have the use and occupation of a clothier's shop, for a period commencing 
 in October, 1818, and ending at the expiration of the season for dressing cloth, to wit, on 
 the 1st of May, 1819 ; and the period proved was, during the season for dressing cloth ; 
 held a fatal variance. Curley v. Dean, 4 Conn. Rep. 359. So the plaintiff having alleged 
 a contract, by which the defendant was to receive all the accounts contracted by the 
 pliuntiff in a certain business during a specified period, and the proof was that the defend- 
 ant was to receive the first moneys accruing from the business, and resort to the account 
 for the balance only, the variance was held fatal. Id. 
 
 In actions upon a contract of warranty, though it is usual to allege an express and for- 
 mal promise and undertaking in a declaration, it is not necessary tnat the proof should 
 literally correspond with what is set out ; for any affirmation at the time of the sale, 
 intended as a warranty by the affirmant, and relied upon as such by the purchaser, will 
 support the allegation. Thus, where the declaration averred that the defendant undertook 
 that the horse he sold to the plaintiff was quiet, &c. ; held, that proof that the defendant 
 said, at the time of sale, " You may depend upon it that the horse is perfectly quiet," &o., 
 will support the averment. Cave v. Coleman, 3 Mann. & Ryl. 3. And see Chapman v. 
 Murch, 19 John. R. 390 ; Sweet v. Colgate, 30 John. R. 303 ; Bacon v. Brown, 3 Bibb, 85 ; 
 Jackson v. Witherell, 7 Serg. & Rawle, 483 ; Cramer v. Bradshaw, 10 John. R. 484 ; Gil- 
 christ V. Mann, 3 Car. Law Repos. 667 ; Erwin v. Maxwell, 3 Murph. 245 ; Roberts v. 
 Morgan, 2 Cowen's Rep. 438. And an allegation that the defendant warranted a horse to 
 be not over seven years old sustained in substance by proof of a warranty that he waa 
 seven years old the spring next after the sale. Henry v. Henry, 1 Chip. Rep. 365. 
 
 Not only must the promise, for the breach of which the action is brought, be truly 
 stated, and proved as alleged, but the entire consideration for the promise must be set out ; 
 and if there be any material variance between the consideration as averred and the proof, 
 it will be fatal. See post, of the text, and the cases there cited ; also Brooks v. Lowrie, t 
 Nott & M'Cord, 343. Accordingly, where the declaration alleged a contract by the defen- 
 dant, in consideration of an undertaking by the plaintiff, to 'buiJd a ship, and the evidence 
 was of a contract \ofima% a ship partly built, and sell it to the defendant, the variance was 
 held fatal. Smith v. Barker, 3 Day's Rep. 313. And where the plaintiff declared on a 
 
CH. xir.] Of Variances in Civil Suits. 719 
 
 contract, alleging it as one by which the defendant agreed to pay him a specified sum, for 
 htUf the land taken for a certain road; and the contract proved was, that the defendant 
 was to pay for all the land, the variance was held fatal. Crawford et al. v. Morrell, 8 
 John. Rep. 253. So, where an agent sold to A. in one lot, and at an entire price, two 
 horses ; one belonging to B., and another to C, warranting both to be sound, it was held 
 that A. could not maintain assumpsit against B., for the unsoundness of the horse belonging 
 to the latter, declaring as upon the sale of one horse ; for the contract concerning the two 
 horses was entire, and the whol e consideration for the warranty was not sel; forth. Symonds 
 V. Carr, 1 Campb. 361, 363, ani vide note a. And a declaration for the price of pi?!« timber, 
 sold and delivered, is noc supported by proof of a sale and delivery of ymiee timber. Rob- 
 bins V. Otis, 1 Pick. 368 lupra. 
 
 In an action to recover damages for not performing a contract to convey land, a variance 
 respecting the locality of the land, between the consideration of the contract as laid and 
 proved, has been held fatal. Obert v. Whitehead, 6 Halst. 293. And where the declara- 
 tion alleged, that in consideration the plaintiff would deliver a certain note to a third 
 person, there to remain until the defendant should pay a note g^ven by the plaintiff to A., 
 the defendant promised the plaintiff to save him harmless, &c. ; and the evidence was, 
 that the plaintiff agreed to deliver the note to a third person, and let it remain till he 
 should return from a journey, and that in consideration thereof the defendant promised, 
 &c. ; the variance was held fatal. Colt v. Boot, 17 Mass. Rep. 229. And so, where the 
 declaration alleged a promise, that in consideration the plaintijET wovld indorse a note, &c. ; 
 and the evidence was of a promise, in consideration of the plaintiff's ha/cing indorsed a 
 note. Bulkley v. landon, 2 Conn. Rep. 404. And where the contract stated in the decla- 
 ration was alleged to be on a past consideration for the delivery of goods, without 
 mentioning the place of delivery, and in the alternative as to time ; and the contract proved 
 was on an executory consideration to deliver goods at a particular day and place ; the 
 variance was held fatal. Robertson v. Lynch, 18 John. Rep. 451. So, if money paid 19 
 alleged to be the consideration of a promise, such allegation is not supported by evidence 
 of payment, after the promise was made. Bender v. Manning, 2 N. H. Rep. 289. And in 
 Lees V. Whitcomb (3 Carr. & Payne, 289), it was held, that an agreement by which A. 
 agreed to jemain with C. for two years from the date, for the purpose of learning a parti- 
 cular trade, would not support a declaration stating the consideration to be that C. " would 
 receive A. into his service." In an action against an ecclesiastical society, on a contract 
 relating to the funds of the society, the plaintiff alleged the consideration of the defendant's 
 undertaking to be, the delivering up of the fund, and a subscription paper, into the hands 
 and control of the society ; and it appeared from the proof, that these acts constituted but 
 a part of the consideration ; held, that the variance was fatal. Russell y. South Britain 
 Society, 9 Conn. Rep. 508. So, the plaintiff having set forth the names of the subscribers 
 to such fund, and averred that they were all original subscribers ; and it appeared iirom 
 the proof that five of them were not so, but became subscribers at a subsequent period, the 
 variance was adjudged fatal. Id. And where the plaintiff stated, as part of^the conside- 
 ration of the defendant's undertaking, that he contracted to employ the defendant's son, 
 so long as he should wish, and the proof was of a contract to employ him during the 
 season ; it was held that the variance was fatal. Curley v. Dean, 4 Conn. Rep. 259. If 
 the declaration allege a consideration for the promise, additional to the true one, the plain- 
 tiff will fail on the ground of variance. Stone v. Knowlton, 3 Wend. Rep. 374. See also, 
 Lansing v. M'Killip, 3 Cain. Rep. 286. But in Wroe v. Washington et al. (1 Wash. Rep. 
 357), the declaration alleged a promise in consideration of the appellant's having under- 
 taken to rent and furnish a house, and board the defendant ; and the proof was a promise, 
 in consideration that the appellant would board the defendant merely ; and the variance 
 was disregarded. The statement of a frivolous, with a sufficient consideration, will not 
 vitiate. Lowry v. Brooks, 3 M'Cbrd, 421. So a frivolous consideration may be safely 
 omitted in the declaration, but not a valid one. Brooks v. Lowrie, 1 Nott & M'Cord, 342, 
 supra. Where the declaration averred the consideration for the purchase of a horse to 
 be, that the buyer should give a large price, to wit, £105 ; proof that the buyer was to give 
 100 guineas, and £10 more if the horse suited him, was held no variance. Cave v. Cole- 
 man, 3 Mann. & Ryl. 2. Either way, say the court, it was a large price, and that is the 
 imporsant part ; the words laid under the videlicet may be rejected, and then there is no 
 variance. Further, see the next note, and post, note 247, as to variance respecting written 
 instruments. Also ante, note 237, relative to the doctrine of immaterial averments, in 
 setting out express contracts. With respect to variance between the evidence and bills 
 of particulars, see ante, note 318. 
 
 (Many of the foregoing cases in which the variance between the allegation and the proof 
 was held fatal, womd not be considered at all material under the present rules of pleading. 
 Code of N. Y., gS 169, 170. To render the variance material, it must appear to have 
 actually misled the adverse party, to his prejudice, in maintaining his action or defense 
 on the merits. In all other cases, the pleadings may be amended without costs, or the 
 fact may be found according to the evidence. If the allegation of the cause of action or 
 defense fails in its entire scope and meaning, it is not deemed a case of variance, but a 
 failure of proof. § 171.) Ante note 227. 
 
720 The Substance only of the Issue needs be proved. [ch. xii. 
 
 *849 * Where contract stated in action of tort. This rule is not confined 
 to actions ex contractu. In an action of tort also, where a contract 
 is necessary to be stated in order to maintain the ground of action as laid in 
 the record, the contract ought to be proved as stated. Thus, in an 
 *850 action against, two defendants for deceit charged in *the declaration 
 to have been committed by them in a joint sale of their joint prop- 
 erty, the Court of King's Bench held, as there was no evidence against one 
 of the defendants, that the action could not be maintained against the 
 other. (1) The joint contract here described, said Lord Ellenborough, C. J., 
 in delivering the judgment of the court, is the foundation of the joint war- 
 ranty laid in the declaration, and essential to its legal existence and validity; 
 and it is a rule of law, that the proof of the contract must correspond with 
 the description of it in all material respects. (2) 
 
 (1) Weall V. King, 12 Bast, 452. And see Green v. Qreenbank, 3 Marsh. 485 ; Lopes v. 
 De Tastet, 1 B. & B. 538. 
 
 See Carter v. Hope, 10 Barb. 180. 
 
 (3) Note 241. — In an action on the case, alleging that the defendants, being joint pro- 
 prietors of a line of stages from H. to A., undertook, in consideration, &c., to transport the 
 plaintiff and his baggage from, &c., within a certain time, and neglected and failed to 
 perform that undertaking, leaving the baggage behind them on the road ; upon Twt guilty 
 pleaded, it was held, that the plaintiff could not recover, without proving a joint under- 
 taking against all. Walcott v. Canfield, 3 Conn. Rep. 194. Hosmer, J., delivering the 
 opinion in this case, after reviewing most of the cases cited in the test, comes to the fol- 
 lowing conclusion : "That in actions founded on agreement, the plaintiff, in eveiy essen- 
 tial particular, must prove the contract as he has alleged it ; and it matters not, whether 
 the breach of the contract resulted from the omission to perform some act, which the 
 defendants ought to perform, or from the improper performance of the act, o* from the 
 doing what ought not to be done." The rule, in general, respecting actions of fraud as 
 well as warranty, is, that the contract set out must accord with the one proved upon the 
 trial, or the variance will be fatal. Perry v. Aaron, 1 John. Hep. 129 ; Silver v. Kendrick, 
 2 N. H. Rep. 160. If the declaration, however, in such cases, only purports to set forth 
 the contract according to its legal effect, a substantial accordance will sufiBce. Silver v- 
 Kendrick, awpra. Where the plaintiff, in an action alleging deceit, set forth that the 
 defendants promised to deliver them eight bales of Uue guineas, of the usual length and 
 breadth, and of the valup of $5.50 each, but instead thereof, &c., it was held, that proof 
 of a promise to deliver the sj)ecified number of bales, without establishing the contract 
 as to the length, breadth, and value, according to the declaration would not be sufficient. 
 Snell V. Moses, 1 John. Rep. 96. But in Cunnihgham v. Kimball (7 Mass. Rep. 65), it was 
 held, in an action for a false affirmation in the sale of property, that a variance between 
 the contract, as set forth in the declaration, and as proved, was immaterial ; the whole 
 gist of the plaintiff's action being the defendant's false affirmation. Aliter, if the action 
 be founded upon contract, and the gravamen be the non-performance thereof by the 
 defendant. Id. In an action for injury to a horse, by immoderate and careless driving ; 
 proof that the defendant, on being charged with driving it from London to Chatham, 
 instead of to Dartford, according to his undertaking, stated, that in fact he only drove to 
 Dartford, has been adj udged sufficient to support an allegation that the contract was to drive 
 only to Dartford. Ware v. Juda, 2 Carr. & Payne, 351 . And in this case it was held, that an 
 allegation that the plaintiff lent a horse to the defendant, was supported by proof that what 
 he lent was a mare. In trover, for a promissory note, the declaration alleged it to be for 
 $180, and when produced, it appeared to be for $360, held, a fatal variance. Bissel v. 
 Drake, 19 John. Rep. 66. If the plaintiff in such case cannot state the precise amount of 
 the note, he should say it was of great value, to wit, &c., laying the sum under a videlicet. 
 Id. See also Hoffnagle v. Leavitt, 7 Cowen's Rep. 517. And in an action for fraudulently 
 putting off the bills of a broken bank, where the declaration described the bill as " one 
 ten dollar bank bill, and ten iive dollar bank bills, all of Fanner's Bank, in Belchertowri ;" 
 It was held, that the plaintiff could not recovor, without proving that the bills put off 
 were of the denominations specified. Watson v. Osborne, 8 Conn. Rep. 863. So, it seems, 
 though the specification of the bills bo laid under a videlicet. Id. In actions qui tarn 
 upon the statutes against usury, if the plaintiff undertake to set out the usurious con- 
 tract, he must prove it precisely as laid, or the variance will be fatal. And where an 
 usurious contract was alleged to have been made with A. and B. (who were partners) 
 jointly, but the proof was of a note given by A. alone, the variance was held fatal. Mus- 
 ^rove q. t. v. Qibbs, 1 Dallas, 216. So where the date of the usurious contract differed 
 from the one set forth, it was held a fatal variance. Evert q. t. v. Barr, 4 Yeates, 99. 
 And the day from which forbearance was to commence is material, and must be truly 
 stated. Partridge v. Coates, 1 Carr. & Payne, 534. A variance respecting the time for 
 
CH. XII.] Of Variances in Civil Suits. 721 
 
 *851 What part of contracts need be stated.— It vill not be necessary for 
 the plaintiff to state all the several parts of a contract, which con- 
 sists of distinct and collateral provisions ; but it is sufficient to state so 
 much of the contract as contains the entire consideration for the act, and 
 the entire act to be done in virtue of such consideration, including the time, 
 manner and other circumstances of its performance. Thus, if there is a 
 provision in the contract to discharge the party from al^ liability, in case 
 a particular condition is not complied with, it ought to be set out and 
 strictly proved : but it is otherwise, where the provision respects only the 
 liquidation of damages on a breach of the contract ; such a provision need 
 not be stated in the pleadings. (1) In an action on the case upon the war- 
 
 which tlie loan was made, ia in such cases, fatal (Wilmot v. Munson, 4 Day's Bep. 114); 
 or the amount of the loan. Drake v. Watson, 4 Day's Rep. 37. So, in a plea of usury to 
 a bond, where the defendant alleged the usury to consist in including in the bond $183.73 
 for forbearance, and it turned out that a horse valued at $100 made part of the sum of 
 $188.72 ; held, a fatal variance. Smith v. Brush, 8 John Rep. 84. See notes 347, 340.) 
 
 (Under the Code, the pleading may be amended on the trial, where the opposite party 
 has not been misled. Corning v. Corning, 3 Selden, 97. Or the trial may proceed, with 
 leave to the party to move for an amendment on such terms as may be j uat (Gettman v. 
 Ritz, 3 Sand. 734) ; it being a case where the opposite party has not been misled. And 
 though there be no amendment the fact may be found according to the evidence. § 170. 
 Ante note, 337 & 239. Hosley v. Black, 28 N. Y. 438, 443. 
 
 In this State (New York) where the establishment of the defense of usury works a 
 forfeiture, the contract must be clearly proved ; under the former system of pleadings it 
 was held necessary in equity, as well as in actions at law, to set forth the contract and 
 specify distinctly the usuriou^ premium or interest taken or contracted for, and that the 
 proof must come up to the statement in the pleading. Vroom v. Ditmars, 4 Paige Ch. 
 636, 533 ; N. O. G. L. Banking Co. v. Dudley, 8 Id. 453, 458. That a general admission- by 
 plaintiff that he had taken usury, would not support an answer setting forth a particular 
 sum or rate per cent. Rowe v. Phillips, 3 Sand. Ch. 14. Under Ae code it is no longer 
 necessary that the. statement of the contract should be strictly proved ; that is to say, a 
 variance between tlie proof and the pleading is not fatal, unless the alleged agreement 
 differs in its entire scope and meaning from the one proved ; the complaint roay h? 
 amended. Catlin v. Gunther, 1 Kern. 368. But it is still true that the proof of the 
 usurious agreement must be clear and strong ; that no presumptions will be indulged in 
 favor of such a defense. 3 Cowen, 390 ; 8 Wend. 533 ; 3 Bosw. 1 ; 33 N. Y- 605 ; 3 Wend. 
 296 ; 23 N. Y. .472. Where the answer sets up one entire contract for the discount of two 
 drafts and the taking of the sum of $135 as premium or interest ; and the proof makes 
 out two C9ntracts, each at a discount of one-eighth of one per cent per day, for time 
 which would elapse before maturity, bnt the time for which the discount was taken, or the 
 sum taken, the vritness did not know and could not state ; the variance is held fatal to the 
 defense. Griggs v. Howe, 31 Barb. 100. 
 
 Where the owner of properly agrees to sell it at a price named on a credit of ten dayg, 
 and finaljy in closing the sale accepts his pay in Canada money at two per cent discount 
 from another person, not the vendee, that othex person taking the purphaser's check for 
 the amount ; there is no usury in the transaction — there being no loan of money or goods, 
 or any contract for forbearance. Stockwell v. Holmes, 33 If . Y. 53. A contract embracing 
 two separate and distinct 'agreements, viz. ; that the lender shall receive the borrower's 
 deposits and pay them over on demand, and discount the borrower's notes payable in New 
 York, the discount to be paid or allowed at tjie time of the discount and the exchange at 
 the maturity of each note in ease a draft should 6.e purchased to pay the same, is not 
 usurious, there being no agreement on the part of the borrower to continue such 
 discounts for any defioite period or for any specific amounts. Beals v. Benjamin, 33 N. Y. 
 61. The fact that the note is made piiyable in New York, does not render the discount of 
 it by a bank usurious, even where the makei;^ resides in Buffalo and has no expectation 
 that he will have funds at the place of payment otherwise than by purchase of them 
 at a premium ; for the law does not acknowledge, for any purpose affecting the construc- 
 tion or validity of the contract, any difference in the value of money at different points 
 within the State. Oliver Lee & Co.'s Bank v. Walbridge, 19 N. Y. 134. Usury cannot be 
 predicated of an advantage obtained by the lender by means of the difference of exchange 
 between the place of the loan and the place of payment, when both are within the State. 
 Eagle Bank v. Rigney, 33 N. Y. 618. But it may be shown that the note was so drawn 
 as a cover for usury, and if the bank take the rate of exchange on the renewal of the 
 note, besides the discount, the transaction is usurious. Price v. Lyon's Bank, 33 N. Y. 55.) 
 
 (1) Clarke v. Gray, 6 East, 564 569. And see Thornton v. Jones, 3 Marsh. 387 ; Parker 
 v.Palmer, 4B, &A. 387.) 
 
 Vol. I. 91 
 
722 The Substance only of the Issue needs be proved. [ch. xii. 
 
 ranty of a horse, if the plaintiff states truly the whole of the consideration 
 for the promise of the defendant (which in the case referred to, was the 
 redelivery of the horse to the defendant), and then states truly the sub- 
 stantive parts of the warranty, the breach of which he complains of, this 
 will be sufficient, without averring other parts of the warranty entirely 
 collateral and irrelevant to those stated. (1) Where the contract stated was 
 for the purchase ef a certain quantity of goods " to wit, eight tons," and 
 the contract proved was for the purchase of " about eight tons," the exact 
 amount not being known at the time of making the contract, but being 
 ascertained before the action was brought; it was held that the variance 
 was not material. (2) 
 
 Joint contracts. — In all cases of joint contracts, in writing or by parol, or 
 ex quasi contractu, and in all cases of joint obligation, it seems now to be 
 settled, that if only one be sued, he may plead the matter in abatement, but 
 
 cannot take advantage of it afterwards upon any other plea, or in 
 *852 arrest of *judgment, or give it in evidence under the general issue. 
 
 Thus, in an action against the defendant as drawer of a bill of ex- 
 change, who pleaded non-assumpsit, and it appeared in evidence at the 
 trial, that the bill was drawn by the defendant and another jointly ; on a 
 motion to set aside the verdict (which had been found for the plaintiff), 
 upon the ground of this supposed variance, the Court of Exchequer was 
 clearly of opinion, that there was no variance between the bill of exchange 
 proved, and that which was declared upon. (3) The same rule holds when 
 the actiop is brought against one of severali0)artners ; the defendant 
 must plead in abatement, and cannot give the partnership in evidence under 
 the general issue. (4) Formerly a different rule was adopted, on the ground 
 of a supposed variance. (5) But with respect to the party suing, the rule is 
 still the same ; namely, that if an action of assumpsit is brought by one 
 only of several parties to a contract, who ought to join, the defendant may 
 take advantage of it upon the general issue of non-assumpsit. (6) 
 
 (1) Miles V. Sheward, 8 East, 7. And see Cotterell v. Cuff, 4 Taunt. 285 ; Sequier t. 
 Hunt, 3 Pri. 68 ; Handford v. Palmer, 2 B. & B. 359 ; Blyth v. Bampton, 3 Bing. 472. 
 
 (2) Gladstone v. Neale, 13 East, 410. And see Crispin v. Williamson, 8 Taunt. 107. 
 
 (3) Evans v. Lewis, cit. 1 Wras. Saund. 291 d ; Germain v. Frederick, cit. Id. ; Rees v. 
 Abbott, Cowp. 832 ; Powell v. Layton, 2 N. E. 365. ' 
 
 (4) Kice V. Shute, 5 Burr. 2611 ; Abbott v. Smith, 3 W. Bl. 947. 
 
 (5) Boson V. Sandford, 3 Salk. 440. 
 
 (6) LegTise v. Champante, 2 Str. 820 ; Graham v. Robertson, 2 T. R. 282 ; Teed v. 
 Blworthy, 14 East, 210 ; 1 Wms. Saund. 291 f. 
 
 KoTB 243. — Abbott, C. J., in Snellgrove v. Hunt (1 Chitty's Rep. 71, 75), commenting 
 on the remarks of Sergeant Williams (1 Saund. 291 g. note 2), thus concisely gives the 
 reason of the distinction pointed out in the text : " The plaintiff knon's, or ought to 
 know, who are his partners in a transaction — but he may not be able to ascertain how 
 many persons are liable to be jointly sued ; consequently the omission of a party, who 
 ought to have been made a co-plaintiff, is a ground of nonsuit ; but the omission to make 
 a party a defendant can only be taken advantage of by plea in abatement." And this 
 doctrine will be found recognized and sustained by all the cases. Dob v. HaJsey, 16 John. 
 Rijp. 34 ; Graham's Pr. 62 ; Bird v, Pierpoint, 1 John, Rep. 118, 122 ; Tom v. Goodrich, 3 
 John. Rep. 213 ; Foster v. Hooper, 3 Mass. Rep. 572 ; Ziele v. Camnbell's Ex'rs, 2 John. 
 Cas. 382 ; Bradley v. Camp, Kirby's Rep. 77 ; RoWnson v. Fisher, 3 Cain. Rep. 99 ; Bar- 
 stow V. FoBSett, 11 Mass. Rep. 250; Ruggles v. Patten, 8 Mass. Rep. 480; Brown v. 
 Belches, 1 Wash. Rep. 9 ; Robertson v. Smith, 18 John. Rep. 459 ; Wilson v. Wallace, 8 
 Serg. & Rawle, 53. If the defendant, however, has promised to pay each of several part- 
 ners his specific proportion of their debt, he cannot, in an action by one of them for his 
 proportion, object to the non-joinder of the others. Bunn v. Morris, 3 Cain. Rep. 54. So 
 if he has settled with one, the cause of action is severed, and he sliall answer the rest. 
 Baker v. Jewell, 8 Mass. Rep. 460. See, also, Austin v. Walsh, 3 Mass. Rep. 401. In 
 North Carolina, where the assignees of a bankrupt partner bring a suit for a partnership 
 demand, and there is no plea in abatement, they may recover a moiety. Barclay's 
 Assignees v. Cai-son, 2 Hayw. 243. In an action by executors, whether ex cotitractu or ex 
 delicto, if all the executors named in the will do not join, the defendant should crave oyer 
 of the probate, and plead the non-joinder in abatement ; he cannot take advantage of it 
 
CH. XII.] Of Variances in Civil iSuits. 723 
 
 *853 * Joint toi-ts. — A distinction, however, has been made, in this respect, 
 between actions founded on contract, and actions of tort ; and, in the 
 latter oase, if one only of several persons, who ought to join, bring the 
 action,^the defendant cannot avail himself of the variance imder the general 
 issue, but must plead it in abatement. (1) There is a distinction also between 
 these forms of action, with respect to the party sued. For if several per- 
 sons jointly commit a tort, the plaintiff has his election to sue all or any 
 number of the parties, a tort being in its nature the separate act of each 
 individual ; and, therefore, in actions ex delicto against one only (such as 
 trover, trespass, case for malfeasance, and the like), for a tort committed by 
 several, the defendant cannot plead such matter in abatement or in bar, nor 
 give it in evidence on the general issue. (2) 
 
 in any other way. Qraham's Pr. 62, 63; 1 Saund. 291 g, note 4; Archb. PI. 61. In 
 assumpsit, upon a policy of insurance, if the plaintiff aver an individual interest in the 
 property insured, lie will not be pennitted to give in evidence a joint interest with others ; 
 nor will an averment of an interest with others be supported by proof of a sole interest. 
 Graves v. The Boston Mar. Ins. Co., 3 Cranch, 419 ; Catlett v. Pacific Ins. Co., 1 Paine's 
 Hep. 594. And where a cargo was insured for A., " for himself and for others concerned," 
 and it appeared that A.'s interest was fully insured by a prior policy ; held, that A. could 
 not recovd^ jointly with the others, nor for them in the manner stated in his declaration. 
 He should have brought the action expressly as agent, stating the interest of the others ; 
 or it should have been brought in their names, as upon a policy made for their benefit by 
 their agent; accordingly A. was nonsuited at the trial upon the general issue pleaded. 
 Gardner v. The Bedford Ins. Co., 17 Mass. Rep. 613. 
 
 In debt on bond, where the bond is joint, all the obligors should be sued ; but an 
 omission in this respect cannot be taken advantage of as a ground of nonsusuit on the 
 trial ; it should be pleaded in abatement; or. if it appear on the face of the pleadings of 
 the plaintiff that there i» another person living, who executed the bond with the defenda/ni 
 jointly, it is good ground for arresting the judgment. South v. Tanner, 2 Taunt. 254 ; 1 
 
 Saund. 281 b, note 4 v. Kenon's Adm'rs, 1 Hayw. 216. It seems that, in such 
 
 case, if no plea in abatement be interposed, the court, after verdict, will presume in favor 
 of the j udgment, that the person omitted is dead. See marginal note to Winslow v. The 
 Commonwealth, 2 Hen. & Munf. 459. And see, also, 1 Saund. 291 b. c, note 4. 
 
 In 1 Saund. 291 e. Sergeant Williams says, that if an action be brought against two of 
 three joint and several obligors, the defendant can only avail himself of the omission by 
 plea in abatement. But, in Leftvrich v. Berkley (1 Hen. & Munf. 62), it was held, that an 
 error in this respect, if it appear on the record, is a ground for reversing the judgment, 
 though it was not pleaded in abatement. 
 
 (Where the plaintiff sues several defendants as makers of a joint and several promissory 
 note, he must prove the contract as alleged ; and he will fail, if it appears that only two 
 of the defendants executed the note, and that the other defendant signed the note subse- 
 quently, without the knowledge or consent of the others. Gardner v. Walsh, 22 Eng. 
 Law & Eq. 163 ; Chappell T, Spencer. 23 Barb. 584 ; Mott v. Petrie, 15 Wend. 317. 
 
 It has bean recently adjudged in the court of appeals that where the holders of a note 
 made by one person, and indorsed by another, procure a third person to sign it, in form as 
 ■ if he had been an original maker, the alteration is not such as will affect the contract of 
 the indorser, so as to discharge him. McCaughey v. Smith, 27 N. Y., 39 ; and in Brownell 
 v. Winne (29 id, 400), where the payee and holder of a several note applied to the plain- 
 tiff to let him have the money on it, and he agreed to do so, if the payee would sign his 
 name to it, or hecome responsible to pay the same, and, thereupon, the defendant signeB 
 the note, and gave it to plaintiff and received the money on it ; it was held that the addi- 
 tion of defendants name did not vitiate the note. It was the making of a new note by 
 the defendant. Burton v. Baker, 31 Barb., 241. In support of an answer setting up the 
 non-joinder of parties plaintiff, owners of a vessel, it is enough to show tliat part of those 
 named are parties in interest, the variance not being material. Fowler v. Atlantic M. 
 Ins. Co., 8 Bosw., 332.) 
 
 (1) Dockwray v. Dickinson, Skin. 640 ; Leglise v. Champante, ut supra ; Addison v. 
 Overend, 6 T. R. 766 ; Sedgworth v. Overend, 7 Id. 379 ; Bloxam v. Hubbard, 5 East, 420. 
 
 (3) Mitchell v. Tarbutt, 5 T. R. 21. 
 
 Note 343. — The same rule, stated in the next preceding note, with respect to actions 
 ex contractu, applies where the action is founded upon matter ex qucm contractu ; and 
 hence, if an action be brought against one only, of several persons, upon a matter 
 founded in contract, though the form of the action be case fos malfeasance, or non- 
 feasance, the defendant can avail himself of the non-joinder by plea in abatement, and in 
 that way only; 1 Saund 291 d, note 4 ; Graham's Pr. 63. But if several persons 
 jointly commit a tort, the plaintiff has his election to sue all, or any number of the par- 
 
724 The Substance only of the Issue needs be proved. [ch. xii. 
 
 *854 * Proof of Time. It will not be necessary to prove the time precisely 
 as laid in the pleadings, unless that particular time is material. 
 Thus, where a declaration stated that the defendant on such a day made his 
 promissory note, proof that he made it on a different day would be sufficient. 
 So iu an action for' assault, battery,' taking of goods, <fec., where the defen- 
 dant pleads the general issue, the plaintiff will not be confined to the day 
 stated in the declaration, but may prove the assault, .&e., on any other 
 day before the commencement of the action. (1) If, however, the defendamt 
 justifies by son assault, on the same day, and the plaintiff traverses the 
 cause of justification, and at the trial the defendant proves the trespass 
 on the same day, there the plaintiff cannot give evidence of an assault on 
 another day. (2) And though the defeudant should prove the assault 
 *855 of the plaintiff on *another day, yet the plaintiff after having made 
 such a traverse, cannot prove another assault on a different day. (3) 
 
 ties, because a tort is, in its nature, the separate act of each individual ; and, therefore, in 
 actions ex delieto, such as trespass, trover, case for malfeasance, or the like, against one 
 only/for a tort committed by several, he cannot plead it in abatement, or give it in 
 e'vidence on the trial. For a plea in abatement can only be in those cases wheis, rega- 
 nlarly, all the parties ought to be joined, and not where they may be joined or not, at 
 pleasure. 1 Saund. 391 d, note 4. And see Wright v. Cooper, 1 Tyl. Hep. 4S5 ; Rose v. 
 Oliver, 3 John. Rep. 365 ; Lansing v. Montgomery, 2 Id. 382 ; Bishop v. Ely, 9 Id. 394 ; 
 Low V. Mnmford, 14 Id. 426 ; Knox v. Work, 1 Browne's Kep. 101, 103 ; Ammonett v. 
 Harris, 1 Hen. &' Munf. 489 ; Wilkes v. Jackson, 3 Id. 355 ; Livingston v. Bishop, 1 John. 
 Rep. 290, S. P. There is a distinction, however, between mere personal actions of tort 
 and such actions where they concern real property. Therefore, if one tenant in common 
 only, be sued in trespass, trover, or case, for anything respecting the land held in com- 
 mon, he may avail himself of the non-joinder ; but he can only do this by plea in abate 
 ment. 1 Saund. 391 e, note 4. See, also. Converse v. Symmes, 10 Mass. Rep. 377. And 
 jn Low V. Mumford (14 John. Hep. 436), it is said, that in actions for torts relating to 
 lands of the defendants, there seems to be ground for this further distinction, viz : 
 between nuisances arising from acts of malfeasance and those which arise fiom mere 
 omission or non-feasance. " The case of the Abbot of Stratford (7 Heit.IV, 8), was that 
 of a nuisance arising froip a neglect of duty in not repairing a wall, which was, by law, 
 enjoined on the proprietor or proprietors of the land, on which the wall stood. The gist 
 of the action, therefore, was, that the defendant was such proprietor, and had neglected a 
 
 ' duty Incident to his title. The title to the land on whieh the nuisanc* existed, was, 
 
 . therefore, directly in question ; for if the abbot was not the owner of the land, he 
 was not liable for the neglect, nor liable for the nuisance." Piatt, J„ who delivered the 
 opinion of the court, then proceeds to show that the principal case was one of naked 
 malfeasance, and. therefore, that inasmuch as it was perfectly immaterial whether the 
 defendants owned the land or not, the plaintiff had a right to sue all, or any of the 
 
 . parties who were guilty of the tortious act. He concludes that " unless the title comes 
 in question, there is no diflFerence, in this respect, in actions arising (x delicto, between 
 'actions merely personal and those which concern the realty." 
 
 As to plaintifFs in an action arising ex delicto, the doctrine Of the text has beenruni- 
 formly recognized ; one joint owner of a chattel ought, indeed, to join his co-proprietors 
 in an action of trover or trespass for taking or converting it ; but if he do not, the 
 defendant can only avail himself of the irregularity, by pleading it in abatement ; he 
 cannot show the omission on the trial to defeat the action, but may prove it, to prevent 
 
 IHhe plaintiff from recovering more than his aliquot share of interest. Wheelwright v. 
 Depeyater, 1 John. Rep. 471, 486. So, where there are several tenants in common, and all 
 
 " do not join in trespma qnare claumim, fregit, the samerule prevails. Brotherson v. Hodges, 
 6 John. Rep. 108 ; Austin v. Hall, 18 Id. 286 ; Bradish v. Scheiick, 8 Id. 151 ; Decker v. 
 Livingston, 15 Id. 470 ; Thompson v. Hoskins, 11 Mass. Rep. 419, In South Carolina, it 
 has been held that if one joint tenant, or tenant in common, sues for a whole tract of land, 
 he may have his verdict for any portion of it to which he shows himself entitled. M'Fadden 
 V. Hayley, 2 Bay, 457 ; Perry v. Walker, Id. 461. 
 
 ■ (1) Co. Lit. 183 a, b ) 3 Roll. Ab. 687, tit. Verdict N ; Com. Dig. tit. Pleader, S, 12. 
 
 Lester v. Jewett, 1 Kernan R 460 ; Lyon v. Clark, 4 Solden, 148 ; Potter v. Thompson, 
 23 Barb. 87 ; The People v. Ryder, 439 ; so in a case of trespass : Dubois v. Beaver. 35 
 N. Y. 128. 
 
 (2) Downes v. Skrymsher, Brownl. 283 ; S. C, 3 Roll. Ab. 687, 1. 30. 
 
 (3) 2 Boll. Ab. 680,. tit. Evidence C, art. 3, Thornton v. Lystor, Cro. Oar. 514, eontrra 
 (Jones, J., doubting). See 3 Saund, 5, n. 8. 
 
 Note 344. — (The order in which two events have occurred, is frequently material in the 
 statement of a cause of action or defense. Martin v. Kanouse, 3 Abb. Pr. 831 ; Brown v. 
 
CH. xn.] X)f Variances in Civil Suits, 725 
 
 Harmon, 21 Barb. 510.) But in general, the precise day on which an alleged fact took 
 place is not material, and need not be proved precisely as, laid. Stout v. Rassel, 3 Yeates, 
 334 ; Cheetham v. Lewis, 3 John. Rep. 42, 43 ; Tiffany v. Driggs, 13 John. Rep. 253 ; 
 Gould's PI, 89 ; Dunlap's Pr. 287 ; Perry v. Bbtsford, 5 Pick. 189. This extends to all 
 actions, whether they arise ex contrMtw or ex delicto (Gould's PI. 90) ; and as the plaintiff 
 is not confined usually to the time stated in the declaration, so neither is the defendant, 
 when the time on his part is immaterial, confined to that which is laid in his plea ; and 
 the same rule obtains throughout the subsequent pleadings. Id. 
 
 An eSception is, where the day or time alleged is descriptive of a written instrument, 
 in which case the authorities seem agreed, that the evidence must correspond with the 
 allegations, or the variance will be fi&tal. Gould's PI. 91, 99. And see post, note 247, 
 where a number of cases will be found illustrative of this doctrine. 
 
 And though an unwritten contract has in strictness ho date, and consequently the time 
 of making it is not as such material, yet, if time enters into the terms of a contract, or ia 
 involved in any of its essential parts, it must be proved as alleged. Hence, in an action 
 on the statute of usury, in which the plaintiff stated a corrupt agreement made on the 
 21st December, 1774, foi' forbearance from that time to the 22d Of December, 1776, it was 
 held that proof of an agreement made on the 23d of December, 1774, for forbearance for 
 two years, did not support the declaration. Gould's PI. 90, 91 ; Carlisle v. Trears, Cowp. 
 671 ; Harris v. Hudson, 4 Bsp. Rep. 152. See also Partridge v. Coates, 1 Carr. & Payne, 534, 
 cited ante, note 241, p. 851, in connection with other cases sustaining the same principle. 
 These authorities do not go upon the ground that the day upon which the contract was 
 made is material, but upon the ground that the tiine of forbearance, being necessary td 
 ascertain the nature of the transaction, is material ; and therefore a misstatement of such 
 time, either with respect to its commencement, termination or extent, is so far a variance 
 from the legal identity of the contract, and fatal. See notes 240, 241. 
 
 Sometimes the day of performing a contract or covenant becomes material ; and when 
 BO, it must be proved as alleged. Thus, where a declaration set forth articles of agree- 
 ment, by which the plaintiff covenanted to convey land to the defendant ; for which the 
 defendant Was to pay a certain sum on the 27th of May, 1812, the residue to be paid on 
 the lat of May, 1813 ; and on the first payment being made, the pMntiff was to deliver a 
 deed of conveyance ; and then averred t^iat th^ plaintiff did delirier a deed on the With of 
 May, 1812, which the defendant then and there accepted ; but the defendant, although he 
 mad« the first payment on the 27th of May, 1812, failed in paying the residue on the 1st 
 of May, 1813 ; held (Duncan, J., dissenting), that the time of making the conveyance was 
 material, and therefore, that under the declaration, evidence of a deed executed and deliv- 
 ered to the defendant on the Zd of May, 1813, was inadmissible, although the plaintiff 
 offered to prove by parol testimony, that such deed was accepted by the defendant and 
 recorded at his instance. Jordan v. Cooper et al., 3 Serg. & Eawle, 564. If the plaintiff 
 has not peribrmed at the day, his allegation should conform to the fact ; when the con- 
 tract has been changed, and the time of performance enlarged, he must declare accord- 
 ingly, averring performance within the time fixed by the subsequent agreement ; but if, 
 instead thereof, he declare upon the original agreement, and allege performance at the 
 day, he will fail on the ground of Variance. This doctrine has been recognized in several 
 Cases, and all of them obviously proceed upon the assumption that the time of performance 
 ia material. Philjips et al. v. Rose, 8 John. Rep. 392 ; Baldwin v. Munn, 2 Wend. Rep. 399 ; 
 Freeman v. Adams, 9 John. Rep. 115 ; Little v. Holfand, 3 T. R. 590 ; Brown v. Goodwin, Id., 
 note ; Hasbrouck v. Tappan, 15 John. Rep. 204 ; Jewell v. Schroeppel, 4 Cowen's Rep. 566. 
 
 And the time alleged may be rendered material by the state of the pleadings ; thus, 
 *856 in an action for negligence in protesting a *note, where the declaration averred 
 
 a deiniind and notice on the 3d day of August, which was the right day ; and on 
 the trial, the plaintiff sought to charge' the defendant on the ground of demand, &c., 
 having been, made on the 2d day of August, which being the day before the last day of 
 grace, was inoperaliv'e ; held that the time was material,' and that the plaintiff could not 
 susiain his action by proof so variant from his allegations. " Though in pei'sonal actions 
 generally," say the court, " the day is immaterial, it may nevertheless be rendered mate- 
 rial by the pleadings. And such is the case here ; the declaration gave no notice that 
 the negligence coinplained of referred to the day of grviilg notice. The defeudant could 
 not come prepared to repel that which the plaintiff averred ; yet this he must do, if, upon 
 the. proof offered, the plaintiff could recover. House v. Young, 1 Hamm: Rep. 504. So 
 where a declaration on a bill of exchange, by the indorsees against the acceptor, alleged 
 that the bill was indorsed to the plaintiffs as the surviving assignees of A. B., after his 
 bankrrfptcy ; a Witness on the trial proved the handwriting of the drawer, the acceptance 
 arid indorsetnent, and the comiriission of bankrupt, vrith the proceedings thereon, were 
 put in. Lord Tenterden, C. J. : "If you'had declared generally in the names of the plain- 
 tifiS, the possession of the bills hy them would have done'; but here you state especially 
 that they were indorsed after the bankruptcy to them, as surviving assignees, and you 
 liave given no evidence of either of those circumstances." Hutchinson, counsel for the 
 plaintiff, remarked that the bills were dated after the bankruptcy ; Lord T. ; " That alters 
 tie case, but you must still show the plaintiffs to be surviving assignees, and that the 
 
726 The Substance only of the Issue needs be proved. [ch. xii. 
 
 *857 * Of place. The same certainty of description, as to the place or 
 parish, is not so necessary in transitory as in local actions. In an 
 
 action for non-residence, where the parish was described as St. Ethelburgh, 
 and proved to be St. Ethelburga, it was held, that the variance was 
 
 *858 material. (1) So, in an *action of ejectment, where the premises were 
 
 bills were indorsed to them as such." Bernasconi v. The Duke of Argyle, 3 Carr. & 
 Payne, 39. And wherever the priority of facts jn point of time becomes material, they 
 must be proved in their order as laid. See ante, note 285. 
 
 In trespass, the day laid, in the declaration is seldom material. See Charles v. Delpux, 
 2 Browne's Eep. 319. Originally, every declaration in trespass seems to have been con- 
 fined to one single act of trespass. When the injury was of a kind that could be continued 
 without intermission from time to time, the plaintiff was permitted to declare with a 
 cantinuando, and the whole was considered as one trespass. In more modern times, in 
 order to save the trouble and expense of a distiuct writ or count for every different act, 
 the plaintiff is permitted to declare for a trespass committed on divers days and times 
 between one day and another; and such a declaration is considered as if it contained a 
 distinct count for every different trespass. But as this is for the advantage and ease of the 
 plaintiff, he is not obliged; to avail himself of the privilege, and may still consider his 
 declaration as containing one count only, and as confined to a single trespass ; in which 
 case the time becomes immaterial. As it would give the plaintiff an undue advantage, if 
 he could avail himself of the declaration in both those modes, and might operate as a 
 surprise on the defendant, the plaintiff must make his election before he begins to intro- 
 duce his evidence. Pierce v. Pickens, 16 Mass. Eep. 470, per Jackson, J. Accordingly, in 
 trespass quare clausum /regit alleged to have been committed, diverm diebus et vieSma, it 
 was held, that if the plaintiff gave evidence of one or more acts of trespass within the 
 days specified, he shall not be permitted to prove an act done at any other time ; but if he 
 choose, he may waive his right to prove any act within the days mentioned in his decla- 
 ration, and prove one done at any time before the commencement of the action, and 
 within the time prescribed by the Statute of Limitations. Pierce v. Pickens, supra, 1 
 Saund. 24 a, note 1 ; Gould's PI. 106, 107. And where the trespass is laid with a continu- 
 ando, according to the ancient mode, the same rule prevails. 1 Saund. 24 a, note 1 ; Haak 
 V. Breidenbach, 3 Serg. & Eawle, 206. But if the plaintiff travels out of the continvAtndo, 
 he must select one trespass, and rest upon that. Joralimon v. Pierpont, Anth. N. P. 42, 
 per Van Ness, J. And see note a; also Gould's PI. 106, 107. 
 
 There are many acts of trespass which, when executed, cannot be done &gwa, but 
 terminate upon the commission of them, and therefore cannot be continued ; as where a 
 man cuts down trees, or kills horses, &c., or takes away goods. In these, and similar cases, 
 if the trespasses were repeated, they cannot be laid with a contimtando, but must be 
 declared on as done^ diverm dietms et vieOms, between such and such a time. If the former 
 mode is adopted, the plaiDtilf will not te permitted to give evidence of more than one act 
 of trespass. He is not, however, confined to the precise time laid, but may prove a tres- 
 pass committed at any time before the commencement of the suit. 1 Saund. 24 a, note 1 ; 
 Sanders v. Palmer, 1 M'Cord, 165, 167. 
 
 If, a declaration in trespass allege an injury to have been committed on the same day 
 upon ahorse and cow, proof that a trespass was committed on the horse in 1817, and on 
 the cow in 1820, will not support the declaration. Sanders v. Palmer, 1 M"Cord, gup'a. 
 Further in relation to trespass, se&po»t. Vol. Ill, of the text. In ejectment, the averment 
 of title is so far material, that it must be laid at or before the time when it actually 
 accrued. And if it appear to ^avo accnied subsequent to the day alleged, the variance will 
 be fatal ; but not, if it appear to have accrued at any prior period. Siglar v. Van Eiper. 
 10 Wend. Rep. 414, 417 ; Van Alen v. Eogers, 1 John. Cas. 281. See also Bailey v. IVir- 
 play, 6 Binney, 454 ; Noakes v. Shaw, Cam. & Nor. 457 ; Brown v. Lutterloh, Id. 425. 
 (1) Wilson V. Gilbert, 2 B. & P. 281. 
 
 Note 245. — The allegation of a place is either merely formal or it is descriptive ; where 
 it is merely formal, proof is said to be unnecessary, and even on indictments upon criminal 
 charges, and in actions for local offenses, it is sufficient to prove the offense to have been 
 committed within the county. 4 Starkie's Ev. 1570. And see note 249. 
 
 But wherever allegation of place is descriptive, the proof must correspond with the 
 averment ; thus, in an action against a carrier, if the contract alleged be to carry from A. 
 to C, a variance as to the termini is material. Tucker v. Cracklin, 2 Starkie's Bep. 385. 
 See also Lopes v. Tastet, 1 Brod. & Bing. 538. And where the declaration laid a promise 
 to pay at A., and the evidence was of a promise to pay at B., the variance was held fatal, 
 Umbehocker v. Russell, 2 Yeatcs. 389. And see ante, notes 240, 941. But in the case of 
 Frith V. Gray (4 T. B. 561, n.). cited in the text, in an action for not procuring the plaintiff 
 a booth at a horse race, to be run on Barnet common, in the county of Middlesex, where 
 it was proved that the whole of Barnet common was in the county of Hertford ; L«rd 
 Mansfield and the rest of the court, on a motion for a new trial, upon the ground of v,ui. 
 
CH. XII.] Of Variances in Civil Suits. Ill 
 
 ance^held, that as it was perfectly immaterial whether Bamst common was in Middlesex 
 or not, those words might be rejected as surplusage. 
 
 Where, in a declaration upon an instrument in writing, no venue was stated in the 
 body of the declaration, but only in the margin, and no place was alleged where the instru- 
 ment was executed, held not a variance, though the instrument produced in evidence bore 
 date at a different place from that in which the venue was laid. Alder v. Griner, 13 John. 
 Eep. 449. But the court say in this case, that had the declaration alleged the instrument 
 as having been made at the place where the venue was laid, they would probably have 
 been bound by authority to have decided otherwise. See post, note 347. An action for a 
 nuisance to the plaintiff's real property, whether corporeal or incorporeal, is local, and the 
 action must be brought in the county where the property is situate. Mersey and Irwell 
 Nav. Co. V. Douglass, 3 East, 497, cited in the text. But it is not necessary to describe 
 the precise local situation, either of the property injured, or of the gravamen. Id. And 
 unless a precise local situation be given, the place mentioned will be ascribed to venne 
 and not regarded as descriptive. Id. If, however, in such case a precise local description 
 be given, it must be proved as Kid, and a variance will be fatal. See Shaw v. Wrigley, 
 cited arguendo, 2 East, 500 ; 4 Starkie's Ev. 1574. Where the nuisance was alleged to 
 consist in obstructing the waters of D. creek, and the evidence was of obstructions in the 
 water near the mouth of D. creek, the variance was held fatal. Funk v. Arnold, 3 Yeates, 
 428. So, in trespass, if the close is described, the plaintiff will be held to proof of injury 
 within the description. Thus, where the allegation was that the defendants broke, &c., 
 the plaintiff's mill lot, and destroyed their mill dam extending across Agawam river, 
 &c. ; and on the trial, it appeared that the mill lot and mill stream were on the north side 
 Of the river, the dam extending across ; the plaintiffs offered to prove that the defendants 
 pulled up the dam on the south side of the river, and that one of them, who did not cross 
 the river, stood on the mill lot, giving directions to the others while they were engaged ; 
 to this evidence, as it related to the destruction of the dam south of the thread of the 
 river, the defendants objected, because it was not within the description contained in the 
 declaration. The evidence was rejected, and the jury gave their veidict tor a trespass 
 committed on the north side of the river ; held, that the decision of the judges at the 
 trial, excluding the evidence, was correct. White v. Mosely, 5 Pick. 280. (In such a case 
 proof of possession is sufficient ; Walker v. Wilson, 8 Bosw. 586.) Where the premises 
 were described as abutting on the close of the defendant, and there were three defendants, 
 A., H. and C, it appearing that the premises abutted on the close of A., but not of the 
 other defendants, held, that this was ambiguity merely, and not a variance. Walford v. 
 Anthony, 8 Bing. 75. Under the 6th section of the Patent Law of February 31st, 1793, 
 ch. 156 (3 Bior. 348), the defendant pleaded the general issue, and gave notice that he 
 would prove, on the trial, that the machine (for using which without license the suit was 
 brought) had been used previous to the alleged invention of the plaintiff, at several places 
 which were specified in the notice, " and also at sundry other places in Pennsylvahia, 
 Maryland, and elsewhere in the United States." The defendant having given evidence as 
 to some of the places specified, held, that evidence as to other places not specified was 
 admissible ; but that the court possess the power which will be exercised, to prevent the 
 plaintiff from being injured by surprise. Evans v. Eaton, 3 Wheat. 454. 
 
 Where it is doubtful whether the allegation of place be merely formal, or whether it be 
 descri()tive, the allegation will be referred to venue, rather than to description. See Jeff- 
 ries V. Diincomb, cited in the text; 4 Starkie's Ev. 1570. And where the place of doing 
 an act is precisely alleged, if the description be wliolly immaterial, it may be rejected as 
 surplusage. 4 Starkie'k Ev. t571. Thus, in an action for running down the pl&intiff's 
 boat in the Thames, near the Halfway Reach, proof that it was done in the Halfway Reach 
 Is sufficient, the place being entirely immaterial. Drewry v. Twiss, 4 T. R. 558, cited in 
 the text. Proof that the place is usually known by the name or description set forth 
 in the declaration, is sufficient ; as where, in an action for a nuisance to the plaintiff's 
 house, " at Sheerness, in the county of Kent," it was proved that the house was situated 
 in the adjacent parish of Minster, but that both places were usually known by the name 
 of Sheerness. Burbridge v. Jakes, 1 Bos. & Pull. 225. And where the premises were 
 described as in the parish of Westbury, it appearing that there were two parishes by that 
 name (Westbury on Trym, and the other Westbury on Severn), it was held ho variance. 
 Doe V. Harris, 5 Maule & Selw. 326. In a penal action on the statute 3 H. VIII, ch. 11, § 
 2, against Dr. Leigh, for practicing physic in the parish of St. George'g in the East, within 
 seven 'miles of the city of London, it appeared that the name of the parish was St. 
 George's in the county of Middlesex, and Lee, Ch. J., held it was well enough, for it was 
 more generally known by the name of St. George's in the East, than by the name of St. 
 George's in the county of Middlesex. Cited by Best, Serg't, arguendo, 3 Taunt. 128. And 
 where the plaintiff sued qui torn, alleging a loss at the game of rouge et noir, at the parish 
 of St. James, in the county of Middlesex ; held sufficient in error, although in Middlesex 
 there are the parishes of St. James, Clerkenwell, and St. James in the liberty of West- 
 minster. Taylor v. Williams, 3 Bing. 449. The latter parish, it seems, was sometimes 
 called St. James. But in trespass for breaking and entering a house, where the premises 
 were laid in the parish of Clerkenwell ; it was proved that Clerkenwell consisted of two 
 
728 The Substance only of the Issite needs be proved. [ch. xii. 
 
 described as situate in the united parishes of A. anc? _B., but were 
 *859 proved to be in the parish of A., and *the two parishes were united 
 
 only for the single purpose of maintaining the poor,(l) the variance 
 was thought to be material. So also in a case where the premises were 
 described as being in the parish of St. George the Martyr, Bloomsbury, and 
 were proved to be in the parish of St. George, Bloomsbury, the variance 
 was held to be fatal (2.) In these and similar cases the variance might now 
 be corrected, by amending the record. 
 
 Statement of Prescriptive Right. The rule above laid down with respect 
 to contracts applies equally to the case of a prescription: a prescriptive 
 right is one entire thing, and, when put in issue, must be proved as stated, 
 (3) It ought to be proved, therefore, to the full extent to which it is claimed. 
 Thus, in replevin, if the defendant avow taking the cattle as damage-feasant, 
 and the plaintiff plead in bar a right of common, and aver that the cattle 
 were levant and couchant, on which averment issue is joined, proof only for 
 part of the cattle will not support the averment, for the issue is upon the 
 whole. (4) But though the party must prove a prescriptive right commen- 
 surate with the right claimed, he will not be precluded from . recovering 
 because he proves a more ample right than what he claims. Evidence of a 
 right of common for sheep and cows will support a plea prescribing for 
 common only for sheep. (5) 
 
 A distinction is to be made between the case of a prescriptive right of 
 common alleged in bar, on which issue is taken, and a possessory right 
 of common claimed in an action of tort for disturbance of the right. In the 
 latter case it is sufficient to prove the same ground of action as is laid in 
 the declaration, although not to the extent there stated. (6) If the allega- 
 tion is, that the plaintiff was entitled to the right of common in respect 
 of a certain quantity of land, and the proof is in respect of a part only of 
 that land, it will be sufficient ;(7) so, if it is claimed in respect of a messuage 
 and a certain number of acres of land, and proved to be in respect 
 
 parishes, the one known by the name, of St. John, the other by the name of St. James, 
 and the. whole was generally known by the name of Clerkenwell ; the description was 
 held insufficient, Taylor v. Homan, 1 Moore, 161. In an action for an excessive distress, 
 the premises were laid to be in tlie parish of St. George the Martyr, and were proved to 
 he in tliQ parish of St. George, Bloomsbury; held an improper description. Harris v. 
 Cooke, 3 Moore, 587 ; P. C, 2 Taunt. 539. Per Cur. : " The parisli should have been 
 described by its known and popular, and not by its general description. St. George, 
 Bloomsbury, was dedicated to George the First, and St. George the Martyr is quite a dis- 
 tinct parisli." Id. And see further, Taylor v. Brooke, 3 Maule and Seiw. 169. Where 
 the declaration described premises for which rent was claimed, as situate in the parish of 
 B. & M.; and the deed produced described the premises as situafied in two distinct parishes, 
 the one B. and the other M.; held, that the variance was fatal. Morgan v. Edwards, 6 
 Taunt. 394. In an action to try a right of way, it was alleged to be from ;i certain highway 
 leading from the parish of L. to B., and the highway turned out to be at that part within 
 the parish ; held no variance. Phillips v. Davies, 2 Anst. 572. 
 
 (1) Goodtitle d. Pensent v. Lammiman, 3 Camp. 274. 
 
 (3) Harris y. Cook, 8 Taunt. 539. And see Guest v. Caumont, 8 Camp. 235 ; 6 East, 352. 
 The following are instances in which variances in the description of parishes, &c., were 
 held to be immaterial : — Goodtitle d. Bremridge v. Walter, 4 Taunt. fi71 ; Doe d. Toilet v. 
 Salter, 13 East, 9 ; R. v. Glossop, 4 B. & A. 6:6 ; Taylor v. Hooman, 1 B. Moore, 161 ; 
 Kirtland v. Pbunsgtt, 1 Taunt. 670. 
 
 (3) Supra, p. 8^. 
 
 (4) Sloper v. Allen, 3 Ml. Ab. 706, tit. Trial, o. 41, cit. B. N. P 299 ; Gray's Case, 5 Rep. 
 79 ; Down's Case, 4 Id, 39 b ; Rogers v. Allen, 1 Camp. 313. See Brook v. Willett, 3 H 
 Bl. 235 ; Bowen v. Jonkin, 6 A. & E. 911 ; Supra, p. 829. 
 
 (5) Bushwood v. Bond, Cro, El, 723 ; Tewkesbury (Bailiffii, &c.) v. Bricknell, 1 Taunt. 
 143 ; West v. Andrews, 5 B. & A. 828. 
 
 (6). See by Coleridge, J., in Bailey v. Appleyard, 8 A. & E. 167. And see Duncan v. 
 Louch, 6 Q. B. 904, 914 ; Higham v. Rabett, 6 N. C. 623. 
 (7) Eardley v. Turnook, Cro. Jac. 629 ; S. C, Palmer, 269. 
 
CH. xn.] Of Variances in Civil Suits. 729 
 
 *860 *only of lancl.(l) The proof, in these cases, is not of a different alle- 
 gation, but of the Same allegation in part; and that is sufficient. (2) 
 But the right proved, though it may be less extensive than that alleged, 
 must be of the same nature with it and included in it. Thus, a claim of a 
 right of vfay on foot, and also to lead and carry away manure, is not sup' 
 ported by proof of a right of way on foot, and for horses, oxen, cattle and 
 sheep ; as the term " lead " implies drawing in a carriage. (3) 
 
 Hule of court as to amendment of variances^ Many variances between 
 the prescriptive right claimed and the right proved, have been remedied 
 by the following rule: Hil., 4 Wm. IVi(4) "When, in an action of trespass 
 quare elausum, fregit, the defendant pleads a right of way with carriages, 
 and cattle, and on foot, in the same plea, and issue is taken thereon, the plea 
 Shall be taken distributively ; and if a right of way with cattle or on foot 
 only shall be found by the jury, a verdict shall pass for the defendant in 
 respect of such of the trespasses proved as shall be justified by the right of 
 way so found, and for the plaintiff in respect of such of the trespasses as 
 shall not be so justified. (5) 
 
 " And where, in an action of trespass quare elausum, fregit, the defendant 
 pleads a right of pasture for divers kind of cattle, (e. g. horses, sheep, oxen, 
 and cows), and issue is taken thereon; if a right of common for some parti- 
 cular kind of commonable cattle only be found by the jury, a verdict shall 
 pass for the defendant in respect of such of the trespasses proved as shall be 
 justified by the right of common so found ; and for the plaintiff, in respect 
 of the trespasses which shall not be so justified. 
 
 " And in all actions in which such right of way or common as aforesaid, 
 or other similar right, is so pleaded, that the allegations as to the extent of 
 the right are capable of being taken distributively, they shall be construed 
 distributively. "(6) 
 
 *861 * Variance as to documents stated in pleadings. — It would be quite 
 unnecessary and superfluous to refer here to the numerous instances 
 of variances, which were formerly fatal, between the averment of records, 
 deeds or other writings in the record of the action, and the documents produced 
 in evidence ; as, in those cases, under the remedial statutes which will imme- 
 diately be noticed, the variances might now be corrected and cured by an 
 amendment of the record. It will be sufficient, with a view to show the 
 inconveniences and failure of justice in former times, and the improvements 
 in the administration of justice in the present day, to observe generally that, 
 according to the settled practice, till within a few years, where a document 
 was declared upon, and it appeared, on comparing and reading the record 
 
 (1) Ricketts V. Salwey, 3 B. & A. 360 ; Manifold v. Pennington, 4 B. & C. 161. 
 
 (3) 3 B. & A. 366. 
 
 Note 346. — Where the declaration sgt forth a right to use and employ certain waters, 
 and that the same should flow, without interruption, over and through the plaintiff's land, 
 in a convenient and customary manner, according to the natural and usual flow of the 
 stream ; it was held, that this did not bind the plaintiffs to proof of a right by prescription. 
 Twiss v. Baldwin, 9 Conn. Rep. 291. And held, likewise, that the burden of complaint 
 being the unreasonable detention of the water hy the defendants, proof of the allegations 
 respecting the natural course of tlie stream, and the right to use it without interritption, was 
 not essential to a recovery. The court found their opinion upon Ricketts v. Salwey, cited 
 in the text, and Williams, J., uses the same reasoning adopted by Holroyd, J., in that case. 
 " The plaintiffs," he remarks, " have not proved all that they have alleged ; they do not 
 prove their right to the extent they have stated it ; but they prove a right, and that they 
 have been disturbed in the enjoyment of it. The proof, then, is not of a different allega- 
 tion, but of the same allegation in part." 
 
 (3) Brunton v. Hall, 1 Q. B. 792. See, also, Beadsworth v. Torklngton, Id. 782. 
 
 (4) 5 B. & Ad. X. 
 
 (.1) See Higham v. Babett, ut supra. 
 
 (6) See Knight v. Woore, 3 N. C. 8, 534; Phythian v. White, 1 M. & W. 216. 
 Vol. L 92 
 
730 The Substance only of the Issue needs be proved. [ch. xii. 
 
 with the instrument produced, that some of the words, stated in the plead- 
 ings as descriptive of the document (and which could not be rejected as 
 surplusage), varied from those contained in the document produced in 
 evidence, the variance was fatal ;(1) and though it might not have been 
 necessary to state some parts of the document which the declaration pur- 
 ported to set out at length, or only necessary to state those shortly 
 according to their legal effect and operation, (2) yet, if they were set out 
 at length, and were descriptive of the document, they were required to be 
 proved as laid, and in case of a variance the plaintiff failed. If a covenant 
 was set out in the declaration as a general covenant, and on reading the 
 deed in evidence it appeared to be subject to an exception or limitation, the 
 variance was fatal. (3) 
 
 If, however, the declaration did not profess to describe a deed^or to set it 
 out according to its tenor, but stated it correctly in substance and in its 
 legal effect, a variance would be immaterial. In action against a tenant for 
 breach of covenant, proof of a lease from the plaintiff and his wife to the 
 defendant, was held to support an averment of a lease from the plaintiff 
 alone, at least, where tlie wife had only a chattel interest in the lands before 
 marriage, or they were the property of the husband ; for the covenants 
 made to husband and wife may, in legal effect, be deemed 
 *862 *covenants made to the husband alone. (4) So, bonds and promissory 
 notes, given to the wife may be declared upon as having been given 
 to the husband, in a suit by him. (5) In such cases, where the variance is 
 immaterial, an amendment of the record would be unnecessary. 
 
 Record set out in the pleadings in substance. The same rule extends to 
 averments of records in pleadings. Where the pleadings do not undertake 
 to set out the tenor of the record, and the substance only of the record is 
 stated, a variance between the allegation and the record will not be material, 
 provided the allegation is substantially proved. Thus, on a prosecution for 
 perjury, (6) where the objection was, that the indictment stated a bill in 
 chancery to be directed to Robert Lord Henley, &c., and it appeared in evi- 
 dence to have been directed to Sir Robert Bfenley, Knight, &c., the court 
 overruled the objection, and held it to be sufficient that the complaint had 
 preferred a bill before the person who held the great seal, by whichever title 
 he was styled. (6) 
 
 So, in an action for a malicious prosecution, (7) where the allegation was 
 that the defendant prosecuted an indictment against the plaintiff, iintil 
 afterwards, to wit, on a certain day named, the plaintiff was in due manner 
 
 (1) The following may be referred to as tlie principal cases relating to such variances : 
 Sands v. Ledger, 2 Ld. Raym. 793; Pitt v. Green, 9 East, 188; Bowditch v. Mawley, 1 
 Camp. 195 ; Howell v. Richards, 11 East, 633 ; Waugh v. Russell, 5 Taunt. 707 ; Morgan 
 ▼. Edwards, 2 Marsh. 96 ; Hoar v. Mill, 4 M. & S. 470. Weeks v. Maillardet, 14 East, 568 ; 
 Gordon v. Gordon, 1 Stark. R. 394 ; Horaefall v. Testar, 7 Taunt. 385 ; Cartridge v. Griffiths,' 
 1 B. & A. 57 ; Swallow v. Beaumont, 3 Id. 765 ; Brown v. Knill, 2 B. & B. 395. Cases of 
 variances between a record averred in the pleadifigs and the record in the action, where 
 formerly the variance was fatal -.—Green v. Bennett, 1 T.' R. C56 ; 9 East, 161, 163 ; Brown 
 v. Jacobs, 2 Esp. 726 ; B. v. Taylor, 1 Camp. 404. See, also. Com. Big. tit. Record, C. D ; 
 B. V. Leefe, 3 Camp. 141 ; Woodford v. Ashley, Id. 193 ; B. v. Bellamy, 1 By. & Mo. 171 ; 
 Sheldon v. Whitaker, Id. 266 ; Sevan v. Jones. 4 B. & C. 403 ; Edwards v. Lucas, 5 Id. 339] 
 
 (3) Dundas v. Weymoutji (Ld.), Cowp. 665 ; Price v. Fletcher, Id. 727 ; Eo'ulston v 
 Clarke, 2 H. Bl. 563. 
 
 &] Howell V. Eichards, ll East, 633 ; Tempany v. Bernard, 4 Camp. 30. 
 
 (4) Arnold v. Bevoult, 1 B. & B. 443 ; S. P., Beaver v., Lane, 3 Mod. 217. 
 
 (5) 1 B. & B. 443 ; Ankerstein v. Clarke, 4 T. R. 616. In this case the bond was given 
 to the husband and wife as administratrix. 
 
 (6) B. V. Lookup, cit. 1 T. E. 340; 9 East. 163. See, also, B. v. Pippett, 1 T. B 335- 
 E. V. Payne, cit. 9 East, 158 ; E. v. Leefe, 3 Camp. 189 ; Byue v. Moore, 5 Taunt. 187 '• 
 Cousins V. Brown, 1 By. & Moo. 391. ' 
 
 (7) Purcell v. Macnamara, 9 East, 157. See, also, Phillips v. Bacon, 9 East, 398 ; PhilllDs 
 V. Shaw, 4 B. & A. 435. 
 
CH. XII.] Of Variances in Civil Suits. 731 
 
 acquitted, <fcc. ; and to prove this allegation, the record of acquittal was 
 produced, which showed that the acquittal was on a different day from the 
 one named ; the court held that the variance was not material, and that the 
 averment had heen substantially proved. Here the day was not alleged aa 
 part of the description of the record ; but the substance of the allegation 
 was, that the plaintiff had been acquitted on the prosecution. 
 
 So in an action against a sheriff for a false retum,(l) the declaration 
 *8'73 *stated that the plaintiflF in a certain term (naming the term of the 
 
 year), by judgment recovered "as appears by the record," and the 
 proof was that he recovered by a judgment of another term and a different 
 year : the court held that this was not a material variance ; that the aver- 
 ment, " as appears by the record," was mere surplusage, and might be 
 rejected, inasmiich as the judgment W9,s not the foundation of the action, 
 but only inducement to it. 
 
 (1) Stoddart v. Palmer, 3 B. & C. 2. 
 
 Note 247. — Variance, when material and when immaterial. — The general 
 doctrine we are to consider is nearly the same, whether the particular instance of variance 
 be in respect to a record, specialty, or any inferior species of written evidence ; and it will 
 therefore avoid the necessity of a frequei^ recurrence to the same authorities, by disposing 
 of the entire subject in a single note. An instrument used upon the trial is either set 
 forth in the jileadings by its tenor, or it is described according to its substance and effect, or 
 it is simply brought forward to sustain allegations which do not etcpressly refer to it in any 
 manner whatever. 
 
 1. It is well settled, that if a party undertakes to set forth a written instrument by its 
 tenor, or in A^ec verba, as it is ordinarily expressed, his proof and averments must corre- 
 spond most strictly ; and if, in the recital, he varies in a word or letter, so as thereby to 
 create a different word, it is fatal. 4* Starkie's Ev. 1587. The State v. Caffey, 
 *863 Murph. 321 ; Sheehy v. *Mandeville, 7 Cranch, 208, 217 ; Ferguson v. Harwood, Id. 
 408, 418 ; Commonwealth v. Stow, 1 Mass. Eep. 54; Olin v. Chipman, 2 Tyl. Eep. 
 148 ; Harris v. Lawrence, 1 Tyler's Rep. 156. And it will be found that the phrase " to 
 the tenor following," or " as follows," or " in the words and figures following," or the like, 
 preceding an allegation of the instrument, has usually been held to bind the party to 
 exact proof. 4 Starkie's Ev. 1587 ; Harris v. Lawrence, 1 Tyl. Rep. 156 ; Olin v. Chipman, 
 3 Tyl. Rep. 148 ; Commonwealth v. Stow, 1 Mass. Rep. 54. Not so, however, where the 
 words are " in manner and form following." Rex v. May, Doug. 193. Yet, whatever may 
 be the peculiar mode in which an instrument is alleged, if it be apparent from the whole 
 aspect of the pleading that the party intended to set it forth in the precise words, slight 
 inaccuracies will be fatal. Olin v. Chipman, 2 Tyl. Rep. 148. But should it still remain 
 doubtful, after recurrence to these circumstances, whether the instrument was designed to 
 be set out in this manner, or merely described by its substance and effect, our courts would, 
 doubtless, be in favor of extending to the party the benefits of the latter alternative. See 
 Ferguson v. Harwood, and Silver v. Kendrick, cited supra ; also, the remarks of Marshall, 
 C. J., in Wilson v. Codman's Ex'r,3 Cranch, 193, 208. Instances of the application of the 
 rule we are considering will occur most frequently in the case of actions for libels, as to 
 which, see the text, post and ante. 
 
 'By way of showing the extent to which it has been carried, it may be proper, in addition 
 to what we have above stated, to remark that, where the instrument is set out by the 
 tanor, ihe most trivial mistakes, even in a single word, as the substitution of nee for non, 
 air for heir, have been held fatal (Drake's Case, 2 Salk. 660 ; 4 Starkie's Ev. 1587) ; but a 
 mere literal variance in the spellijjg of a word, abby for abbey, undertood for understood, or 
 any similar slip of the pen, not changing the word to one of a different signification, will 
 be overlooked. Aleberry v. Walby, 1 Strange, 229, 231 ; 4 Starkie's Ev. 1587. So, a mis- 
 spelling of the name of an individual will not vitiate, if the sound be not altered ; as 
 where one is Segrane, and the other Seagrave. WUliams v. Ogle, 2 Str. 889. And where 
 the declaration alleged a note drawn by the defendant?by the name of Christopher BrdJdey, 
 and a note produced was signed Christ. BvlMey, it appearing that the defendant usually 
 signed his name in that manner, the court held there was no variance. Wood v. Bulkley, 
 13 John. E. 486. So, where a single bill was declared on as signed by Philip Taylor, and 
 the one produced was signed Phiip Taylor, it was held that as these names are similar in 
 sound, there was no variance. Taylor v. Rogers, 1 Alab. Rep. 197. In Pennsylvania, the 
 general rule is, that a small variance in setting out a written instrument is fatal ; but the 
 rule is not applicable where the opposite party, by trick or artifice, withholds the original, 
 or where the party averring the instrument cannot by due exertions obtain it ; as where 
 the action was founded upon a contract under seal, and the defendant prayed oyer, 
 whereupon the court allowed the plaintiff, upon satisfactory proof that he had not. the 
 original in his possession, and by due search was unable to obtain it, to give a copy fhnu 
 
732 The Stcbstcmae onl^ of the Issue needs be proved. [cB. xru 
 
 the records as oyer ; and it appeared that, at the time of demanding oyerj the 'defendant 
 had both parts of, the instrument in his possession, and being charged therewith, positiyely 
 denied it, but produced the same in court upon the trial ; under these circumstances, it 
 was held that after this improper conduct on the part of the defendant, it did not lie in 
 his mouth to insist on a variance, however fatal it might be in common cases. Dunbar V. 
 Jumper, 3 Yeates, 74. In debt on a bond, the declaration, purporting to set it forth in 
 hem verba, charged that R. and B. acknowledged themselvas to be indebted, &c.; held, thaf 
 a writing, beginning, "Know all men, &c., that I, B., am held, and firmly, bound," and 
 running throughout in the name of M. alone, did not sapport the declaration, notwithT 
 Standing the name of B. was Signed under that of R., akd issue was joined merely upon 
 payment by B. Bell v. Allen's Adm'r, 3 Munf. Re!p. 118. 
 
 If the condition of a bond be set out on oyer, it has been held that a slight variance 
 from the tenor will not be fa^al, Thus, where, in the oyer, th« words were " or delay," 
 and in the original " or other delay," this was disregarded, bepause it did not alter th6 
 sense Henry v. Brown, 19 Johns. Rep. 49. But where, in the oyer, the condition was, 
 that if the defendant should pajr the plaintiff the full sum of £100, and 'under the plea of 
 non estfactum,the evidence was that the word "hundred" hftd been omitted in the bond, 
 and had been interlined after execution, the variance was held to be fatal ; although it 
 was clear from the context that the word hundred was intended. Waugh v. BuSsell, 5 
 Taunt. 707 ; S. C , 1 Marsh. 314 The basis of the decision in Henry v. Brown (mpra), 
 appears to have been Holman v. Borongh (Salk. 658), and Cull v. Sannine (cited in S 
 
 Comyn's Dig. 135, b. 4) ; both were cases of demurrer, on the ground of variance 
 *864 *between the declaration and the deed set out on oyer ; and in Waugh v. Bussell 
 
 (supra), Gibbs, C. J., -who delivered the opinion of the court, referring to them, says-: 
 " This is not a question for lawyers on the construction of the "bond ; the cases cited are 
 good law, but not applicable. In those cases the declaration may be right, and yet may 
 not contain a single word that is contained in the bond ; it is only necessary to state the 
 legal claim which arises by reason of the bond. But after e^tr and Twn est factum pleaded, 
 the question is, wliether the tenor set out is the same as the tenor of the bond executed; 
 and I do not apprehend it would suffice that it shotild agree in substance. The case in 
 Zeisincz (viz : Cull v. Sarmine, fiwpra), when examined, is only because the plaintiff added 
 an e final t6 the name of the widow Sarmine; and the cotirt say, mis-spelling will not 
 ^tiate an obligation. Chief Baron Comyus has certainly misunderstood fiiat case. Con- 
 sider the reason of the distinction. In a declaration, it is only necessary to state the legal 
 eff'ect of the instrument ; but on oyer, the plaintiff professes to produce a copy of it, as of 
 the deed by which he asserts that the defendant is bound ; and if it is not the true copy, the 
 defendant may say, that it is not the deed he executed. We should be glad to relieve 
 the plaintiff, but it is not in our power. The defendant has a right to see the instrument 
 exactly as it is, and to make the most of the errors therein contained." The supposed 
 error of Chief Baron Comyns consists in stating Cull v. Sarmine as maintaining, that " if 
 the declaration be upon a bill, tha€ he will pay, and the bill says, if Tie will pay, the variance 
 will be immaterial." As reported in 3 Lev. 66, to which Comyns refers, the case is very 
 obscure ; though, from the reason there given for the decision, viz : that " mis-spelling 
 will not vitiate an obligation," we should incline to think the remarks of Gibbs, C. J., 
 respecting it, not unwarranted. It is worth observing, that the attention of the Supreme 
 Court in Henry v. Brown (supra), does not seem to have been directed to this circum- 
 stance, nor do they appear to have noticed, in any way, the distinction taken in Waugh v. 
 BusseVl (supra), as to instances of variance between the declaration and oyer, and those 
 where the variance is between the oyer and evidence. 
 
 2. When the pleading, however, does not purport to set out the instrument in heic wrha, 
 but it is merely described by its substance and effect, the rule is more liberal, and better 
 calculated to attain the ends of justice. And, in such case, it is ordinarily enough, if.4he 
 legal identity of the instrument has been adhered to ; or, in other words, there will be 
 no variance, if the instrument proved, and the one alleged, correspond in all essential par- 
 ticulars. Accordingly, i n debt against a sheriff for an escape, where the declaration alleged 
 a judgment recovered in the Court of Common Pleas, held at Salem, in Washington 
 county ; and in the record produced on the trial, the place or town in which the court was 
 held did not appear, the variance was disregarded. Page v. Woods, 9 John. Rep 83i- And 
 on an indictment for perjury in swearing to an affidavit, where the assignment was, that 
 the prisoner swrtre that he did not know a writ was returned against him in a particular 
 suit, and the affidavit, when produced, contained the word c-ase instead of suit ■ held that 
 as the indictment only purported to set fbrth the affidavit in substance, the variance was 
 not fatal. The State v. Gaffey, 3 Murph. Rep. 821. And in an action for a libel the 
 defendant gave notice, with the general issue, thflt he would give in evidence a record of 
 _a trial upon an indictment, of the term of June, 1810 ; when produced, it appeared to be 
 in 1809 ; held, that the time was not material, and as the notice did not affect to set forth 
 the record according to its tenor, or with s, prout patet, &c., the vai-iance was unimportant 
 Brooks V. Bemiss, 8 John, Rep. 455. And see per Woodworth, J., McKinley v. Bob 89 
 John. Rep. 351, 355 ; Rodman v. Fdrraan, 8 John. R6p. 36. And even an averment, with 
 a. prout patet per reoordum, will not render proof by record peoessary, where, from the 
 
OH. XII.] Of Variances in Civil Suits. 733 
 
 nature of the fact as averred, it appears that there is no record. Wall?er T, Witter, Doug. 
 .1. And see Wigley v. Jones, 5 East, 440. But see Turner v. Eyles, 3 Bos. & Pull. 456. 
 In one case, the plaintiff haying alleged that the defendant permitted his bill to be discon- 
 tinued, for want of prosecution thereof, and that thereupon it was considered that the 
 defendant take nothing, &c., prout j)atet per reeordum, whereby it was wholly ended and 
 determined; held, that this was not proved by the production of the rule for discontin- 
 uance, though, had the allegation been general, it would have been satisfied by the 
 production of the rule, and evidence pf the paynfient of costs. Gtadd v. Bennet,. 5 Price, 
 540. See F9,nBhaw v. Heard, I Mpore & Payne, 191. Where the plaintiff sued for a 
 malicious prosecution, and in one count of his declaration alleged th«,t the defendant went 
 before a magistrate and entered a complaint, charging the plaintiff with committing an 
 
 offense on ^ day of , 1834, and in the other that he so charged the plaintiff 
 
 • *865 with committing an offense on or abovi the *20th day of May, 1884 ; it was held, that 
 
 an affidavit taken before the magistrate, charging tbo,p}aintiffwith having committed 
 the offense on pr about th^ 16th of May, 1834, was admissible ; for, say the court, " the 
 declaration did not profess to set out in so many words, the original affidavit of the defend- 
 ant. It only stated the substance in general terms This was sufficient for all the purposes 
 of justice. The particular day on which it was alleged the offense was committed, was 
 not material fpr the defendant's defense, and the paper offered in evidence comported sub- 
 stantially with the allegations in the declaration. It was not a case of technical nicety, 
 but of substantial accordance." Eichards v. Foulks, 3 Hamm. Rep, 66, 70. 
 
 And so where writs and process are set out according to their substance, slight vari- 
 ances, 01 indeed any variance which does not affect their legal identity, will be disre- 
 garded. As where, in debt for an escape, the declaration set forth a ca. m- with the 
 usual words, " and him safely keep," and the ea. sa. produced omitted the word " keep ;" 
 it was held no fatal variance. Jones v. Cook, 1 Cowen's Rep, 309. So where the variance 
 was in ampunt and trifling, Bissellv. Kip, 5 John. Rep. 89. And where the declaration 
 alleged that the direction in an execution was to levy a specific amount, without mention- 
 ing interest ; and, by the execution, the sheriff was directed to levy the amount, with 
 interest ; held no material variance. Crane v. Dygert, 4 Wend. Rep. 675. See Stiles v. 
 Rawlins, 5 Esp. Rep. 133. But in an action on a bond executed to the plaintiff as sheriff, 
 conditioned that B., being confined in jail on an execution in favor of C. for $68.46, should 
 not depart the limits ; where the declaration alleged as a breach that B., being legally 
 committed on the execution described in the bond, escaped, after which C. sued A. and 
 recovered, and in support of these allegations, the plaintiff offered in eyidence the record 
 pf the recovery by C. against him, wherein the execution on which B. was committed, 
 was described as one for $58.46 ; and also the execution itself, which was for the same 
 sum ; held, that the evidence was admissible, as not conducive to prove, but as disproving 
 such allegatjpns. (Rossiter v. Downs, 4 Conn. Rep. 393. And where, in a plea of justifi- 
 cation, a justice's execution was described as returnable in ninety days, and when pro- 
 duced, it turned put to be. returnable in sixty days, the variance was held fatal (Toof v. 
 Bantley, 5 Wend. Rep. 376) ; so, also, in an action for maliciously bringing a civil s,uit, and 
 demanding excessive bail ; the plaintiffs declaration alleged that the writ, upon which 
 he was held to bail, was returnable on the first Monday in December, 1809, whereas it 
 was, in truth, returnable on tlie first Monday of March. Miinns v. Dupont, 3 Wash. C. C. 
 Rep. 31. But in an action against a sheriff for the escape of a partytaken under a ca. sa,, 
 where the plaintiff alleged a certain writ of the king called, &c. ; also the judgment as 
 rendered in the seventh year of our lord, the now king (Geo. IVth) ; and pn production of 
 the writ, it was found to contain the name of George III ; held, that as the judgment was 
 , Jn the time of George IV, and as the plaintiff had alleged that the writ was issued on the 
 8th pf May, 1826, the variance was not fatal. Elviu v. Drummond, 13 Moore, 585, So 
 where, in a similar action, the declaration alleged that an attachment of privilege was 
 sued out by the plaintiff, by which tb6 defendant was commanded to attach, &c., to 
 answer, &c., of a plea of trespass on the case to the (femogr^ of saifi plaintiffs of thirty 
 pounds, and the writ produced did not contain the words, "tothe damage of said plaintiffs," 
 &c. ; yet, held that the variance was immaterial, as the declaration did not undertake to 
 set out the writ by its tenor, but pnly according to its legal effect. Cousins v. Brown, Ry. 
 & Mood. 291. And in a proceeding against haiX annul tid record pleaded to a replication, 
 which alleged a ca. so. returnable Cor^m Bege a/pud Westm. where a oa. sa. was produced, 
 returnable Coram rege tdneiinque, &c., the variance was disregarded. Robert v. Price, J 
 Lord Raym. 703. See Shuttleworth v. Pilkinglpn, 3 Str. 1155, cited by Buller, J., in 1 T. 
 R. 340, So where, in an action for bribery; the declaration alleged a precept tothe mayor, 
 and the evidence was of a precept directed to the mayor and burgesses, the variance was 
 held immaterial, for the substance was proved ; and the mayor being the proper returning 
 oiBcer; the precept should have been directed to him. Cumming v. Sibley, cited i T. E. 
 839 ; DickspB v. Fisher, 4 Burr. 3367: Ware,v. Harbin, 8 H, Bl. 113. For other cases pf 
 a similar nature, see Bex v. Morris, Str. 909 ; Wilson v. Mawson. Gor. Lee, C. J„ cited 1 
 T. R. 337 ; Hendray v. Spencer, cited 1 T. R. 329 ; 4 Starkie's Ev. 1589, et seg. In au 
 .action, however, against the sheriff on the statute (8 Anne, c. 14), for taking goods off the 
 premises without paying rent, the declaration stated, that "by virtue of, ?,nd under pre- 
 
734 The Substance only of the Issue needs he proved. [ce. xn. 
 
 tense of a certain writ of our said lord the king, before tlie king himself," before that time 
 
 sued forth, the defendant took, &b.. ; it was held, that a writ issumg from the 
 
 *866 Common Pleasdid! not *sustain the averment. Sheldon v. Whittaker, Ry. & Mood. 
 
 266. And see Impey v. Taylor, 3'Maule & Selw. 166. 
 
 The same principles are equally applicable where a deed of any kind is set out. Thus, 
 
 in debt on bond, the plaintiff alleged that the defendant acknowledged himself to be 
 
 bound to Richard Bishop ; on oyer, it appeared that the defendant acknowledged himself 
 
 bound to Richard , to be paid to the said Richard Bishop ; And upon demurrer, held 
 
 that there was no variance, for the word said pointed out the relation of the names, and 
 It was impossible to doubt but that the bond was made to the person to whom the money 
 was payable. Bishop v. Morgan, 13 Mood. 275. And where the bond described the defen- 
 fendants as "of the county of Essex," which words were omitted in the declaration, the 
 variance was held immaterial. Evans v. Smith, 1 Wash. Rep. 72. So where the plaintiff 
 declared upon a bond given to him for, or on account of another, and so expressed in the 
 bond ; and neglected to set forth that part of the instrument which manifested the use, it 
 was held that the variance was immaterial ; " even if it had been stated," ' say the court, 
 " it would have been mere surplusage." Peter v. Cocke, 1 Wash. Rep. 257. And if a 
 bond be payable to James Whitlock, j un., and the declaration describe it as payablg to the 
 plaintiff, after naming him as James Whitlow, jun., alias James Whitlock; this is not suCh 
 a variance as should prevent it from being received as evidence in support of the declara- 
 tion on a plea of payment. Whitlock v. Ramsey's Adm'x, 2 Munf. Rep. 510. And where 
 a bond was described as payable on or before the first dny of April ensuing the date, with 
 interest thereon from the first day of January next ensuing the same date ; and the bond 
 was "payable, with interest from the first day of January, on the first day of April next ;" 
 it was held there was no variance, as the sense and legal meaning of the instrument were 
 truly alleged. Hammitt v. Bullitt's Ex'rs, 1 Call. 567. So, where a declaration alleged a 
 bond to be payable to the plaintiff, and on oyer it turned out to be payable to his attorney 
 or assigns — the court, on demurrer, helJ the variance immaterial, for payment to the 
 plaintH"«)r to his attorney was the same thing ; the teneri made it a debt to the plaintiff, 
 and a whend to any one else would be repugnant. Roberts v. Haniage, 3 Salk. 650. In 
 an action by the husband alone, on a bond alleged to be given to him, he gave evidence 
 of a bond to himself and his wife ; held no variance, for he had a right to reject the obli- 
 gation to his wife, and, in legal import, it was a bond to himself Ankerstein v. Clark, 4 
 T. R. 616. See, also, S. P., Arnold v. Revoult, 1 Brod. & Bing. 445 ; S. C, 4 Moore, 66, 
 cited in the text as Arnold v. Revoult. So, where the declaration upon a bond stated that 
 C. D., by his certain writing obligatory (of which profert was made), became bound to A. 
 B., the plaintiff, in the sum of, &c., to be paid to the said A. B. or his attorney, " To the 
 which payment, well and truly to be made, the said A. B. (the plaintiff) did tliereby then and 
 tliere bind himself," &c. The defendant, without craving oyer, pleaded non est factum; 
 and, at the trial, relied on a variance in this, that the bond proved stated that C. I), bound 
 himself; on a motion for a nonsuit, it was held, that the plaintiff not having undertaken 
 to set out the deed in its words, but only in its operation and effect, which was truly stated, 
 and in no wise affected by the repugnant words, they might be regarded as surplusage, and 
 then there was no variance. Quigley v. Furlong, Fox & Smith, 224. Where a declaration 
 stated that, in a dispute between the defendant and the plaintiff, executor of A., a sum of 
 money was awarded* o the plaintiff, and the award exhibited on oyer was of the same sum 
 to the plaintiff and P., executors of A. ; this was held no variance, on the ground that the 
 legal operation of the award had not been departed from. Macon v. Crump, 1 Call's Rep. 
 575. ■" 
 
 It should be here observed, that, if there be a variance between the declaration and the 
 oyer, the defendant, should he seek to avail himself of it, must demur specially on that 
 
 f round ; for he cannot take advantage of it on the trial. James v. Walruth, 8 John. Rep, 
 10 ; Jansen v. Ostrander, 1 Cowen's Rep. 670 ; Henry v. Clelland, 14 John. Rep. 400. But 
 in respect to a variance between the instrument produced in evidence and the oyer, or 
 such instrument and the declaration, tlie rule is otherwise ; in these instances, he may 
 avail himself of the defect at the trial under the proper plea. Waugh v. Bussell, 5 Taunt. 
 707, supra; Howell v. Richards, 11 East, 633 ; Goldie v. Shuttleworth, 1 Camp. 70 ; Gra- 
 ham's Pr. 443. The plaintiff, however, in an action on a covenant, need not set forth such 
 parts of it as do not, in any way, relate to the breaches assigned ; and if, on producing the 
 covenant at the trial, it appear that something not necessary to be set out has been omitted, 
 the variance will be disregarded. /Henry v. Clelland, supra. See ante, of the text. 
 *867 Not so, however, where he has undertaken to set out *such immaterial part, and 
 has alleged it untruly ; there the variance Vill, in general, be fatal. Henry v Clel- 
 land, supra. And see the cases cited in the text. 
 
 And in relation to simple contracts in writing, if they are truly described in substance 
 and legal effect, variances in other particulars, will, in general be overlooked. Thus, if 
 the plaintiff does not profess to set out a note verbatim, but merely alleges it in the ordi- 
 nary way, as bearing date tlie first day of April, lio., it will be no variance if the note be 
 actually dated 4 mo. Ist. Field v. Field, 9 Wend. Rep. 394. And where the declaration 
 alleged an indorsement upon a note, by which it was made payable to C. or order, and on 
 
CH. XII.] Of Variances in Civil Suits. 735 
 
 produGtion of the note, the indorsement was, pray pay to C. ; held, no variance, for by the 
 indorsement it was in effect payable as alleged. Bull. N. P. 275. In an action, however, 
 by an indorsee against the maker of » promissory note, payable on demand, where the 
 declaration set out an indorsement in common form, but by tlie indorsement proved, pay- 
 ment was not to be demanded within a year from the date ; held, a variance, though the 
 year had expired before the action was commenced. Stanwood v. Scovel et al., 4 Pick. 
 422. In this case, however, there was a palpable deviation from the legal import of the 
 indorsement. If a declaration on an agreement by the defendant styling himself " treas- 
 urer, &c.," but binding himself personally, omit the description, it is no variance. 
 M'Williams v. Willis, 1 Wash. R. 199. 
 
 Indeed, it may be laid down as a proposition sustained by nearly all the cases, that 
 whenever the variance does not change the nature of the writing, so as to render the one 
 set out, a different instrument in legal contemplation from that which is sought to be 
 introduced, such variance wUl be disregarded. Ferguson v. Harwood, 7 Cranch, 308, 414 
 And see Silver v. Kendrick, 2 N. H. Rep. 160 ; The Commissioners, &c. v. Muse, 1 Const. 
 Reports, 40 >. And the words of a contract set forth in the declaration, must have the 
 same construction as they would have in the contract itself. Whenever, therefore, the dec- 
 laration purports to set forth a contract according to its effect and substance, and in the 
 contract set forth there is a clause nonsensical or repugnant, which th&court in construing 
 the contract itself, would reject as surplusage, they will so reject it also in the declaration. 
 And though the contract do no^ contain such clause, the vajiance wUl not be fatal. Fer- 
 guson v. Harwood, supra; Quigley v. Furlong, Fox & Smith, 324 ; Siver v. Kendrick, 
 supra; Diblee v. Best, 11 John. Rep. 103. 
 
 But the legal import and effect of the instrument must be truly described, or the party 
 will fail on the ground of variance. Several cases illustrating this qualification of the 
 general principle, have been already noticed, and others will be found in the text. We 
 shall introduce some additional ones. 
 
 The words for value received, as ordinarily used in setting forth a promissory note in a 
 declaration, are not to be taken as a mere naked averment of consideration, but as matter 
 of description ; and if the note when produced want those words, the variance will be 
 fatal. Saxton v. Johnson, 10 John. Rep. 418. So where those words are in the note, but 
 omitted in the declaration, the variance has been held fatal. Rossiter v. Marsh, 4 Conn. 
 Rep. 196. And where an order was declared on as having been given for value therein 
 achrbowledged, and the order when produced stated no consideration, the variance was held 
 fatal (Treadway v. Nicks et al., 3 M'Cord's Rep. 195) ; so where a bill declared on was 
 alleged to be for value received by R. H., and the one produced in evidence was for value 
 received generally. Highmore v. Primrose, 2 Chitty's Rep. 833. Sed vide Grant v. Da 
 Costa, 3 Maule & Selw. 851. In an action against several persons on a note, the declara- 
 tion contained no averment that the defendants were partners, or acted nnder a joint name 
 or firm, but alleged that the defendants " made the note, their own proper hands and 
 names being thereunto subscribed ;" held, that proof of one of the defendants having 
 subscribed the note with the name of the firm, was not sufficient to prove the contract 
 stated.: Peas v. Morgan, 7 John. Rep. 468. But where the declaration averred that the 
 defendants were partners, it was held, that an indorsement in the name of the firm, by one 
 of them, might be declared on as made by the firm. Manhattan Co. v. Ledyard, 1 Caines' 
 Rep. 192 ; Kane v. Scofield, 2 Id. 368. A. & B. having given a joint and several note to 
 C, and afterwards by agreement with A. & C, D. signed his name to the note, and then 
 C. brought an action against A., B. and D., declaring upon it as their joint and several 
 note ; the court held, that the plaintiff should fail on the ground of variance, the note not 
 being a joint contract by D., A. & B. Ives v. Pickett et al., 2 M'Cord, 271. In a recent 
 English case, decided at Nisi Prius, where the declaration alleged the note to have 
 *868 been made by the defendant, '• his own proper *hand being thereunto subscribed," 
 and it appeared that the defendant's son drew the note by his authority, and signed 
 his name thereto. Lord Tenterden, C. J., held, that there was no variance, as those words 
 might bo rejected as surplusage. Booth v. Grove, 1 Moody and Malk. 182. Contra Levy 
 V. WiUon, 2 Esp. Rfep. 180. So where the action was agoinst the payee as indorser, and it 
 was alleged that he indorsed it, his own proper hand being thereunto subscribed ; Lord 
 EUenborough inclined to think that if the defendant's name was signed by another, by 
 his procuration, it was enough to satisfy the averment. Helmsley v. Losider, 2 Campb. 
 450. And the same principle has been expressly laid down as sound law in Alabama and 
 Coimecticvit. Baldwin v. Stebbins, 1 Alab Rep. 180 ; Phelps v. Riley, 3 Conn. Rep. 266. 
 At any rate, the defendant will not be allowed to object to the variance in such cases, after 
 he has promised to pay the note -wiih a complete knowledge of the facts. Helmsley v. 
 Loader, supra. If a note signed by A., be declared on as the act and deed of B., the" 
 variance is fatal ; and so if a note signed by A., individually, be declared on as executed 
 for and in behalf of B., by his agent A. Rossiter v. Marsh, 4 Conn. Rep. 196. A variance 
 as to the amount of the note is fatal. Pilie v. MoUere, 2 Mart. Lou. Rep. 606. And 
 where a declaration omits the time when the note is payable, and it is payable in a given 
 number of days after date, the variance is fatal (Sheehy v. Mandeville, 7 Cranch, 208 • 
 Caller's Ex'r v. Baykin, 1 Alab. Bep. 206 ; Sebree v. Dorr, 9 Wheat. Rep. 558 ; Morris v' 
 
736 The Substance only of the Issue needs be proved. [ch. xii . 
 
 Port, 3 M'Cord, 397) ; and so of a, variance as to the date (Drown v. Smith, 3 N. H. Rep. 299 ; 
 
 2 Campb. Rep. 807, 308, note), or the place where the note is made payable. Sebree v. 
 Dorr, sv/pra. Bat where a note was alleged'in a declaration as having been made on the 
 7th of January, 1808. and the proof was of a note actually made on that day, but by- 
 mistake dated January 7th, f807 ; it was held no variance. Phcenix Ins. Co. v. Walderi, 
 Anth. N. P. 136. In De La Courtier v. Bellamy (3 Shower, 433), the declaration omitted 
 the date, but the time of drawing the bill was set out, and all the other averments 
 accorded strictly with the tenor of the bill ; upon exception taken because of omitting 
 the date, the court said they would intend it dated when drawn. See Hague v. French, 
 
 3 Bos. & Pull. 173, S. P. ; also Coxon y. Lyon, 3 Campb. 307. In a, case, hpweve, before 
 Lord JEllenborough, at the sittings after May term, 1809, where the declaration alleged 
 that the defendant on, &c., made his certain bill, &c., hearing date the same day and year 
 aforesaid, and the real date w as different, his Lordship held the variance fatal. 3 Campb. 
 307, 308, note, Where the declaration alleged a bill drawn by Elisha Brown, it was held, 
 that a bill drawn by Elijah Brown could not be given in evidence. Craig v. Brown, 1 
 Peters' C. C. Rep. 139. But the plaintiff, after submitting to a nonsuit in this case, had 
 liberty to set it aside and amend. 
 
 If a bond be given to A., his assigns, &c., and inures to the benefit of the plaintiffs by 
 assignment, who prosecute upon it, and declare as upon a bond given to themselves with- 
 out rnentioning tfie assignment, the variance will be fatal. Gordon et al. v. Browne's 
 Ex'r, 3 Hen. & Munf. 319, And so, if the penal sum mentioned in a bond be misdescribed. 
 Adams v. Spear, 1 Hayw. Eep. 315. And, where a bond was alleged to bear date on the 
 4th of January, 1773 ; and when produced, turned out to bear date on the 4th of January, 
 1775, the variance was held fatal. Gordon v. Browne's Ex'r, 3 Hen. & Munf 319. See 
 Cooke V. Graham's Adm'r, 3 Cranch, 339. If the plaintiff declare on " a writing obliga- 
 tory, sealed^" &c., he will not be permitted to^give in evidence a writing which is not a 
 specialty. Poster v. Ross, 1 Alab. Rep. 431. And where the deed, in an a,ction of cove- 
 nant, was declared upon as made between the- plaintiff, of the one part, J. C. of the second 
 part, and A. B. of the third ; and when produced, it appeared on its face to be by the 
 plaintiff as trustee of J. C of the one part, G, C. of the second, and A. B. of the third (J. 
 C. being named in the body of the deed as the party of the second part, but Q. C. having 
 actus^lly executed it as such) ; held, that the variance was fatal, jilthough the breaches 
 assigned in no way affected the party, who was intended to be described as of the second 
 part. Mayelston v. Palmerston, 3 Carr. & Payne, 474. And in an action on a bail bond, 
 where the condition as alleged in the declaration was to answer the plaintiff in a plea of 
 trespass, " and also to a plea to be exhibited against said defendant, for £60 upon prom- 
 ises," and the bond, when produced, did not contain the words wpon promises ; held, that 
 tlie variance was fatal. Baker v. Newbegin. Ry. & Mood. 93. In covenant, where, in 
 setting out the deed, the declaration stated that "it was witnessed, among other things, 
 that as well in consideration of," &c., and part of the considerations were omitted, and 
 there were no words in the declaration answering to the phrase as weU ; held, that this 
 was a fatal variance. Swallow v. Beaumont, 1 Chit. Rep. 518. 
 
 Proof of a submission by one of two executors will not support a declaration alleg- 
 *869 ing a *aubmission by both. Tevis' Ex'r v. Tevis'. Ex'rs, 4 Monroe, 46. In debt, on 
 
 a bond with a condition, if the plaintiff allege that the bond is lost, he must set out 
 the substance of the condition ; otherwise, proof of a bond with a condition ,will be a 
 fatal variance. Rand v. Rand, 4 N, Hamp. Rep. 367. Where, in debt upon a recogniz- 
 ance, the recognizance was alleged generally, and upon nul tiel record it appeared to be a 
 recognizance with a condition, the variance was held fatal. Harrington v. Brown et al., 
 7 Pick. 333. So, if the recognizance be, to appear and answer a charge for beating 
 another, whereof he died, and the declaration state it to be, to answer a charge for 
 beating another merely, the variance is fatal, Dillingham v. United States, 3 Wash. C. G. 
 Rep. 432. And in an action upon a recognizance of bail, where the declaration averred a 
 judgment against the principal: a variance in the amount of the judgment of six cents, 
 was held fatal, under the plea of nul tiel record. Bibbins v. Noxon, 4 Wend. 307. See 
 also Beecher v. Chester, 3 Root's Rep. 90, S. P. And where a judgment was described in 
 the declaration as against David Goodrich, and upon mil tiel record ]ileaded it appeared to 
 be a judgment against David Goodrich, jun., the variance was hold fatal. De Kentland 
 V. Somers, 3 Root's Re]5. 437. So a record of a judgment, stating a recovery in trespass 
 im $103.64, cannot be given in evidence in support of an averment, in an action for breach 
 of covenant for quiet enjoyment, that the n^overy was $600. Webb v. Alexander, 7 
 Wend. Rep. 381. And where debt was brought, upon a decree in chancery, for £860 12s. 
 Id., and the decree, when produced, was for £860 12». \d,, with interest from a certain 
 day, to the day of rendering the decree, the variance was hold fatal. Thompson v. Jame- 
 son, 1 Cranch, 382. In an action for malicious prosecution, the declaration alleged an 
 information before a magistrate, made through the procurement of the defendant, which 
 charged the pUintiff with having feloniously stolen, and ridden away with, two geldings, 
 &c., and it was held, that a count stating the matter in this wav, could not be sustained 
 by prQof of an information charging a mere trespass, in taking away the geldings. 
 Milton V. EUmore, 4 Carr. & Payne, 456. In a criminal prosecution on the 7th and 9th 
 
CH. XII.] Of Viiriances in Civil Suits. 737 
 
 sections of, the act of Congress (July 29tli, 1813, ch. 84), for making a false declaration, the 
 indictment having stated the purport of a written paper to be, that the vessel was of 
 the burden of fourteen tons and 45-95ths of a ton, whereas the paper produced stated it to 
 be fourteen tons and 50-95ths, the variance was held fatal. United States v. Lakeman, 2 
 Mason, 339. And where, in an indictment for perjury, the crime was alleged to have been 
 committed at a circuit fcourt, held on the 19th day of May ; whereas the record showed 
 the court to have been held on the 20th of May, the variance was adjudged fatal. United 
 States V. M'Neai, 1 Gall. Bep. 387. Contra, Rex v. Cuppard, 3 Carr. & Payne, 50. 
 
 3. If the instrument is neither set out in the pleadings by its tenor, nor described by its 
 legal import, but is merely brought forward to sustain an allegation not referring to 
 it expressly in any way whatever, a variance will not be fatal if the substance of what is 
 alleged be proved. Instances of this character occur frequently in the action of assumpsit, 
 where the plaintiff may declare upon his promise generally, without averring it to be in 
 writing. Lawes on PI, in. Assumpsit, 90. See per Spencer, J., in Nelson v. Dubois, 13 
 John. 175, 177. Thus, where the plaintiiF declared, that on the 2d of December, 1832, he 
 having delivered certain articles to the defendant, &c., to be safely kept at the defendant's 
 expense, the defendant undertook and promised to keep them safely, and return them on 
 demand ; the plaintiff, to prove his contract, introduced a written memorandum of the 
 a,greement, bearing date the 22d of December, 1822 ; the defendant interposed an objec- 
 tion, on the ground of variance as to the date, which was overruled ; and afterwards, the 
 case coming up for review, the decision at the trial was held correct ; for although, say 
 the court, " where a plaintiff declares upon a written instrument as bearing a particular 
 date, a variance from the date stated is fatal ; yet when a count is founded upon a, contract, 
 it is not important what day is laid, unless the date be made material by the nature of 
 the contract." Drown v. Smith, 3 New Hamp. Rep. 299, 301. And where a declaration 
 stated the consideration of a promise to be, that "A., at the request of C, would consent 
 to suspend proceedings against B.," and the written agreement stated the consideration to 
 be, thiit " A., at the request of C, consented," &c., the variance was held immaterial. 
 Paine v. Wilson, 1 Mann. & Ryl. 708. So where the declaration alleged the consider- 
 ation of the defendant's undertaking to be, that the plaintiffs would delay service of an 
 execution, and the written contract produced read as follows : " if said execution be 
 delayed," &c. ; the variance was disregarded. Lent v. Paddleford, 10 Mass. Rep. 230. 
 *870 So where the declaration was for not transporting salt, according to *contract, and 
 the price or consideration of the defendant's engagement was alleged to be one 
 dollar eighty-seven and a^half cents per tierce, to be paid by the plaintiff; held, that this 
 was sustained by evidence of a written agreement to transport for fifteen shillings, and 
 by proof that by the currency of the place where the contract was made, the amount was 
 the same. Salter v. Kirkbride, 1 South. Rep. 233. 
 
 And it is proper to be noticed here, that where the plaintiff merely alleges the agree- 
 ment without stating whether it is in writing or not, he will be precluded from introducing 
 in evidence a specialty in which the parol contract is merged. Landis v. Urie, 10 Serg. 
 & Rawle, 316. But a specialty accepted as a collateral security is not within the principle, 
 for it does not mergQ the original contract. Charles v. Scott. 1 Serg. & Rawle, 294. See 
 January v. Goodman, 1 Dall. Rep. 208. Nor does a foreign judgment merge an account 
 stated. Hall v. Odher, 1] East, 118. 
 
 In an action for pirating a book, the declaration averred that the plaintiff was the author 
 of a certain book, being a musical composition, called " Captain Wyke," and the proof was 
 that " Captain Wyke" was only one of a collection of tunes called " White's collection of 
 new and favorite tunes, as performed at all fashionable assemblies," &c. ; yet held, that 
 the allegation was supported. White v. Qerock, 1 Chitty's Rep. 24 Where a count in 
 qua/re impedit stated that R. L., by deed, conifeyed the fourth part of his adowson to L. 
 S., and the deed purported to convey the whole of the adowson ; held, that as it was 
 admitted by the pleadings that R. L. had only a fourth part, and hence could convey no 
 more, and the declaration did not profess to describe the deed in verbis, the variance was 
 not fatal. Gully v. The Bishop of Exeter, 12 Moore's Rep. 501. It being alleged also 
 that the deed was made for the e<?nsideTations therem stated, and the deed when produced 
 contained only one, a pecuniary consideration, the variance was disregarded. Id. Where 
 thp plaintiff in an action of tre^ass gua/re clausum fregit, declared by the name of 
 William Robinson, and the deed under which he claimed was to William T. Robinson, 
 the variance was held immaterial. Franklin v. Talmadge, 5 John. Rep. 84. See Richards 
 V. M'Donald, 1 Const. Rep. 114. An allegation that an action is pending in his Majesty's 
 court of the bench at Westminster, is not supjMrted by proof of a pluries bill of Middle- 
 sex ; for by such allegation the Court of Common Pleas must be intended. Impey v. 
 Taylor, 8 Maule & Selw. 166. And see Sheldon v. Whittaker, Ryan & Mood. 266, stated 
 twpra. See also Berkley v. Cook, 3 Call's Rep. 378 ; Ronalds v. Smith, 6 Taunton, 551 
 S. C, 2 Marshall, 258 ; Sheldon v. Whittaker, 4 Bam. & Cresswell, 657 ; and post, of the 
 text ; also 4 Starkie's Evidence, 1603, et seq. In assumpsit for money paid to the defend- 
 ant's use, the declaration stated that an execution had been issued against the defendants 
 inhabitants of the town of N., for taxes, and that property had been seized thereon, for 
 irhich the plaintiff had given his receipt ; and that, in consequence he was compelled to 
 
 Vol. L 93 
 
738 The /Substance only of the Jssue^Heeds be proved. [ch. xir. 
 
 pay the money in satisfaction for the taxes ; a receipt was given in evidence, stating the 
 property to have been seized on an execution against the collector ; and it was held that 
 the variance was not fatal, evidence having been produced, that the execution on which 
 the property was seized and receipted, was in fact against the town. Beers t. Botsford, 3 
 Day, 159. In Louisiana, in a proceeding by the plaintiffe to obtain satisfaction of a judg- 
 ment against their curator, the petition stated that the curator was appointed in 1813, and 
 the record of appointment showed that the appointment took place in 1815 ; held, that 
 as the time was iinmaterial, the record was admissible. Pegeau et al v. Commeau, 4 Mart. 
 Lou. Rep. (N. S.) 190. And it is said that in general, where the instrument introduced 
 is not the gist of the action, slight variances will be disregarded. Baldwin v. Hazzleton, 
 3 Mart. Lou. Rep. (N. S.) 61. But in an action on a sheriff's bond, where the declaration 
 was for the non-payment of taxes of 1785, the court held that the record of a judgment 
 for the balance of taxes collected by him in 1786, was not evidence. 
 
 In some of the numerous decisions which have been made on this subject, judges have 
 occasionally expressed themselves in allowing objections for variance, as yielding to the 
 force of previous authority with great reluctance, especially in those instances where it 
 was apparent that a party objecting to a particular variance was in no wise misled by it, and 
 could not in any event be injured orprejudiced, if it were entirely disregarded. In order to 
 obviate the difBculty as far as possible, a practice has grown up, under the sanctioa of many 
 of the courts, of allowing the pleadings to be amended after trial, so as to make them con- 
 form to the evidence, and in this way save the necessity of a new suit. Thus, in Holland 
 V. Hopkins (2 Bos. & Pull. 344), the plaintiff had been nonsuited at the trial, on 
 *871 the ground that the evidence offered differed *materially from the bill of particulars 
 delivered ; and though the court concurred in the opinion of the judge who non- 
 suited the plaintiff, they set aside the nonsuit, and gave the plaintiff leave to amend the 
 bill of particulars on payment of costs. And in Holhead v. Abrahams (3 Taunt. 81), the 
 action was on a repleven bond, and there was a fatal variance in setting out the goods 
 replevied, upon which the plaintiff was nonsuited ; afterwards, on motion, the nonsuit 
 was set aside on payment of costs. Bayley, J., said in this case, that " if he had been a 
 judge of the court where the action was brought, he would have amended the declaration, 
 pro tanto, at the trial." 
 
 Since the above decisions in England, a bill passed the Parliament, 9 Geo. IV, c. 15), 
 called Lord Tenterden's Act, which provides in very general terms for amendments at the 
 trial, as to variances between any matter in writing or in print, produced in evidence, and 
 the recital or setting forth thereof upon the record, &c. Under this statute it is discre- 
 tionary to allow the amendment or not ; and in Jelf v. Oriel, (4 Carr. & Payne, 23), Lord 
 Tenterden refused an amendment, where there was a variance which would not have 
 occurred if common care had been used in drawing thedeclaration. But where there was 
 a mistake in the date of a bill of exchange declared on, the judge allowed the amendment. 
 Bentzing v. Scott, 4 Carr. & Payne, 34. So where a record of one court was set out as 
 that of another. Briant v. Eicke, 1 Mood. & Malk. 359. It has been held, too, that this 
 law was applicable only to cases where some written instrument is professed to be set out 
 or recited in the pleading. Accordingly, in replevin, the defendant having avowed foy 
 rent in arrear, and alleged a tenancy on certain terms which varied from the lease, Park, 
 J., would not permit him to amend, being, as he said, most clearly of opinion that the case 
 did not fall within either the letter or spirit of the act. Ryder v. Malbon, 3 Carr. & Payne, 
 694. Very recently, however, in Lauey v. Bishop, (4 Barn. & Adol. 479), where the declara^ 
 tion was upon a contract, but did not show whether it was in writing or not ; and, on the 
 trial, it appeared to be in writing and variant from the on<5 set out ; the court thought 
 the case within the act, and so allowed the plaintiff to amend. And Deninan, C. J., refer- 
 red to a case decided in the Court of Common Pleas, which he considered conclusive on 
 the question presented. That was an action for disobedience to a subpoena ; the declara- 
 tion stated, that the plaintiff caused to be left with the defendant a copy of the writ ; on 
 the trial it turned out that the writ was directed to the defendant and two others, while the 
 copy left was directed to him and John Doe, the latter name not being in the original 
 subpcena at all ; and held, that the judge at his Nisi Priua might amend the declaration 
 by inserting, instead of " a copy of the writ of subpcena," " a copy of so much of the writ 
 of subpoena as related to the defendant." Masterman v. Judson, 6 Bing. 234. " Looking 
 to the object," says Tindal, C. J., delivering the opinion of the court, " which was, accord- 
 ing to its title, to prevent a failure of justice by reason of variances between records and 
 \yritings produced in evidence in support thereof, we think it should receive a construc- 
 tion as liberal as the words will admit, anjl that the amendment now under consideration 
 falls within the fair interpretation of the words of the act." Id. 
 
 In New York also, a statute has been passed, similar in its purpose to the one above 
 referred to. It provides that " Every variance between process, pleadings, or any insttu- 
 ment in writing recited or referred to in any other process, pleading or record, and every 
 mistake in the name of any officer or other person, in stating any day, month or year, or 
 in the description of any property, in any pleading or record which, according to law, 
 could be amended by the court after verdict rendered in any cause, shall be disregarded 
 npon the trial of such cause, unless such variance or mistake be calculated to surprise or 
 
CH. XII.] Of Variances in Civil Suits. 739 
 
 mislead the adverse party, and to prevent Ms making due preparation for a full answer 
 on the merits, to the matter concerning which such variance or mistake shall have heen 
 made." 2 R. S. 406, § 49. 
 
 There is obviously a defect in the phraseology ot this section, which renders its meaning 
 somewhat obscure. " Every variance between process, pleadings, or any instrument in 
 writing," recited and referred to elsewhere, is not easily understood ; and we apprehend 
 its true reading to be as follows : " Every variance between process, pleadings or any 
 instrument in writing ;" and the recital of or reference to the same, " in any other pro- 
 cess pleading, or record," &c 
 
 The term " written instrument," contained in the above provision, has" no tex:hnical 
 meaning in our law, though it has in the Scotch. See Jacobs' Law Diet. Instruments, 
 Instrument of Premonition, Instrument of Resignation. The only signification, in 
 *872 popular language, which would *in any degree satisfy the statute, is one of those 
 affixed to the word in Johnson's (4to) Diet, viz : "a writing containing any contract 
 or or^er." We believe, however, that in order to accomplish the intent of the legislature, 
 the definition should be at least sufiiciently broad to embrace all writings of every kind, 
 " recited or referred to " in the pleadings, and which are necessary to be proved upon the 
 trial. See Kevisors' Rep. part 3, ch. 7, pp. 39, 40. 
 
 The term property, also contained in this statute, has a very extensive signification, 
 both in law and popular language. It comprehends real and personal property — property 
 in possession and in action? The legislature probably intended to cover by it, misde- 
 scriptions of personal property, as in trover, and of trespass of goods ; and of real 
 property in ejectment, waste, &c., which must now be very particular. ^2 E. S. 304, § 8 ; 
 Id. 334, § 5. See Borst v. Griffin, 9 Wend. 307. Whether it extends to the interest which 
 the plaintiff has in the premises within the same statutes, qtiere. 
 
 The variance contemplated, furthermore, is such an one as the court wordd oMow tTie 
 party to amend afi&r verdict; and by 2 B. S. 425, § 7,'sub. 10, mistakes in names, sums of 
 money, descriptions of property, or in reciting any day, month, or year, may be so 
 amended, provided the correct name, time, sum, or description, shall have been once 
 rightly alleged. In the same action (sub. 14), it is provided that any^default or negligence 
 of a clerk or officer of the court, or of the parties, their counselors.or attorneys, by which 
 neither party shall have been prejudiced, may in like manner be amended ; and by Id. § 
 8, all variances of the like nature as those enumerate^i may be amended after verdict. 
 
 And before the above statute was passed, the Supreme Court bad gone a great way in 
 aJlbwing amendments after verdict. Thus where, by a mere clerical mistake, the cause 
 of action was laid after the commencement of the suit. Sargent v. Dennis, 2 Cowen's 
 Rep. 515. So where the plaintiff had, by mistake, declared on and made profert of a 
 bond, as under secU, whereas the seal had been torn off Rees v. Overbaugh, 4 Cowen's 
 Rep. 124, Also where oyer of a sealed instrument was wrong, although the defendant 
 relied on moving in arrest, supposing the oyer right till the trial. Daley v. Atwood, 7 
 Cowen's Be|>. 483. And this simply on paying the costs of the motion ; it not appearing 
 that the defendant was deprived, by the mistake, of a substantial defense, but merely 
 relied on the apparent defect. Id. So a declaration for notes in trover, which misde- 
 scribed them, was allowed to be amended after verdict. Hoffnagle v. Leavitt, 7 Cowen's 
 Rep. 517. But because the defendant, relying on the variance, had not prepared for a 
 defense which he had on the merits, the amendment was granted, on condition that the 
 plaintiff should consent to a new trial. Id.^ And where the defendant avowed as execu- 
 tor, when it should have been as devisee, by which he lost his defense at the trial, he was 
 allowed to amend on payment of costs. Wright v. Williams, 5 Cowen's Rep. 501. So, 
 after nonsuit for not confessing lease, entry and ouster in ejectment, the Nisi Prius record 
 was amended by inserting the defendant's name, in the place where it was usually 
 inserted, before the allegation of entry and ouster ; and the court would not hear an 
 affidavit of merits to prevent the amendment. Jackson ex dem. Young v. Young, 1 
 Cowen's Rep. 131. Where, in ejectment, the plaintiff was nonsuited for a misdescription 
 of the situation of the property, the court set aside the nonsuit. Jackson ex dem. 
 Sinclair v. Bailey, 5 Cowen's Rep. 365. So where the plaintiff declared on a warranty of 
 a bellows to blow three fires, and on the trial the proof was of a warranty to blow three 
 fires for the term of one year, the court, to avoid the expense of a new suit, granted a 
 motion to amend after verdict, on the plaintiff consenting to a pew trial and paying 
 costs. Hull V. Turner, 1 Wend. Rep. 72. In Lion v. Burtis (18 John. Rep. 510), the court 
 recognize the difficulty of laying down any general rule with respect to flowing amend- 
 ments after verdict, as every case must necessarily depend upon its own circumstances : 
 and they say, " we do not intend to carry the practice so far as to amend at the trial, but 
 we mean to say that when a plaintiff has been nonsuited for a variance in the date of 
 the instrument declared on, or for any other variance arising from clerical mistake, we 
 will set aside the nonsuit, and give leave to amend on payment of costs. There may be 
 cases in which the judge at the trial will use a sound discretion in suffering the plaintiff 
 to taJie a verdict,, and put the party to his application to the court for amendment. It 
 may be discreet to adopt this course, where the defendant has not been taken by surprise, 
 and where his whole defense has been gone into, or where he is prepared to go'into it. 
 
740 The /Substance only of the Issue needs be proved. [ch. xii. 
 
 6. Of amendments in civil suits. 
 
 It is now proposed to consider the various modern enactments passed for 
 the purpose of preventing failures of justice, caused by the rules relative to 
 variances in civil actions. 
 
 Lord Tenterden's Act (9 Geo. IV, c. 15), provided a partial, though very 
 limited, remedy upon the subject of variance. That aet was passed for 
 preventing a failure of justice, which is often occasioned by variances be- 
 tween records and writings produced in evidence in support of the records. 
 It recites, " that great expense is often incurred, and delay or failure of jus- 
 tice takes place at trials, by reason of variances between writings 
 *8'74 *produced in evidence and the recital or setting forth thereof- upon 
 the record on which the trial is had, in matters not material t6 the 
 merits of the case, and that such record cannot now in any case be amended 
 at the trial, and in some cases cannot be amended at any time ;" and then 
 proceeds to enact, " that it shall be lawful for every court of record holding 
 plea in civil actions, any judge sitting at Nisi Prius, and any court of oyer 
 and terminer and general jail delivery in England, &c., to cause the recard 
 on which any trial may be pending before any such judge or court in any 
 civil action, or in any indictment or information for any misdemeanor — 
 when any variance shall appear between any matter in writing or in print, 
 produced in evidence, and the recital or setting forth thereof upon the 
 record whereon the trial is pending — to be forthwith amended in such par- 
 ticular by some officer of the court, on payment of such costs (if any) to 
 the other party, as such judge or court shall think reasonable ; and there- 
 upon the trial shall proceed, as if no such variance had appeared ; and in 
 case such trial shall be had at Nisi Prius, the order for the amendment 
 
 : ^ _ : 
 
 We find but few decisions since the statute. One was a case of mere clerical mistake 
 on the part of the plaintiif in setting forth a submission to arbitrators ; the judge at the 
 circait overruled the. objection taken by the defendant, and the plaintiff had a verdict. 
 The defendant made a case in order to obtain a new trial, and the plaintiif moved to 
 amend ; the motion was resisted on an affidavit of the defendant, stating that he had a 
 meritorious defense, but that under the advice of counsel, relying upon the variance, he 
 had not prepared for trial. Per Our. Savage, G. J.: "The defendant swearing- to a 
 defense, and that, relying upon the variance, he omitted to prepare for trial, we cannot 
 permit this verdict to stand. The defendant ought not to have availed himself of the 
 technical error in the declaration ; still, strictly, he might take the course which he has 
 adopted, and all we can do is to relieve the plaintiff, without subjecting him to costs. Let 
 a rule . be entered that the plaintiff have leave to vacate his verdict, and to amend his 
 declaration with costs." Carpenter v. Payne, 10 Wend. R. 604,605. Another case is that 
 of Hess V. Fox, 10 Wend. B. 436, stated ante, note 284. In neither of them, however, 
 does it appear that any notice was taken of the statute, and consequently they furnish no 
 guide as to its construction. ' 
 
 **There has been a growing tendency in the courts for many years, to disregard the 
 variances where the adverse party has not actually been misled. It is not deemed neces- 
 sary to add to the cases which illustrate that tendency, contained in the foregoing notes. 
 The late Practice Code of the State of New York, contains the following provisions, viz : 
 
 § 169, " No variance between the allegation in a pleading and the proof, shall be 
 deemed material, unless it have actually misled the adverse party, to his prejudice, in 
 maintaining his action or defense, upon the merits. Whenever it shall be alleged, that 
 a party has been so misled, tfmt fact shall be proved to the taUsfaetion of the court, 6y affl- 
 davit, showing in what respect lie has been mmed; and thereupon, the court may order t'he 
 pleading to be amend(jd, upon such terms as shall be just." 
 
 § 170. " Where the variance is not material, as provided in the last section, the court 
 may direct the fact to be found according to the evidence, or may order an immediate 
 amendment without costs." 
 
 § 171. "Where, however, the allegation of the cause of action or defense to which the 
 proof is directed is unproved, not in sume particular or particulars only, but in its entire 
 scope and meaning, it shall not be deemed a case of variance within the last two sections, 
 but a failure of proof." 
 
 All that is essentially new in these provisions, is the text contained in section 169, ♦. «. 
 proof " to the satisfaction of the court, by affidavit, showing in what respect" the par\y 
 has been misled.** See Notes to Vol. Ill of the text. For recent decisions under the 
 Code, ante, notes 227 and 229. 
 
OH. XII.] Of Amendments in Civil Suits. 741 
 
 shall be indorsed on the postea, and returned together with the record ; 
 and thereupon the papers, rolls, and other records of the court from which 
 such record issued, shall be amended accordingly." 
 
 Under this statute it has been held that, m setting out a record of a 
 judgment, a misstatement as to the court in which it was obtained may be 
 amended ;(1) and that a mistake in the date of a bill of exchange(2) may be 
 rectified. 
 
 CivU actions. In the case of Masterman agt. Judson,(3) which was an 
 action for not obeying a subpoena, the Court of Common Pleas held, that 
 a declaration might be amended by inserting instead of " a copy of a writ 
 of subpoena," " a copy of so much of the writ of subpoena as related to the 
 defendant." 
 
 On the authority of this case the Court of King's Bench decided, in 
 Lamey agt. Bishop, (4) that the statement of a contract might be made 
 conformable to the written contract produced at the trial, as to the time 
 for the performance of it, though it did not appear'- in the declaration 
 whether the contract was written or oral. And in Smith agt. 
 *875 Brandram,(5) *a material variance, in point of legal eflFect, between 
 a contract of guaranty produced in evidence, and the contract set 
 out in the declaration, was held to be amendable within this act. The case 
 of Lamey agt. Bishop appears to overrule an earlier decision of Park, J., 
 at Nisi Prius,(6) who held that a variance between the statement in an 
 avowry of terms of a tenancy, and the proof produced in support of it, 
 was not within the statute. 
 
 The Court of Exchequer has held, that this statute was limited to cases 
 where some matter in print or writing was produced in evidence, and did, 
 not apply to a variance between the statement of a' writing in the pleadings, 
 and the secondary evidence of the writing. Thus, in an action for a libel,(7) 
 where the libel, as set out in the record, imputed to the plaintiff " misman- 
 agement or ignorance ;" and it appeared in evidence that the alleged libel 
 had been contained in a letter which had been destroyed, and secondary 
 evidence was given of its contents, from which it appeared that the expres- 
 sion was " ignorance or inattention ;" it was held that this variance could 
 not be amended, and that it was fatal. 
 
 In one case. Lord Tenterden, C. J., is said to have refused to amend the 
 declaration, on the ground that the mistake arose from want of common 
 care in drawing it: (8) but in many instances, it has been the want of com- 
 mon care that caused the mistake ; and to prevent the failure of justice 
 
 (1) Briant v. Eicke, M. & M. 359. 
 
 (2) Bentzing v. Scott, 4 C. & P. 24 ; Parks v. Edge, 1 C. & M. 429. 
 
 tJnder the Code of New York, all such mistakes may be corrected on the trial ; for no 
 variance is deemed material unless it has actually misled'the opposite party. § 169 ; 
 Egbert v. Wicker, .10 How. Pr. E. 197 ; Catlin v. Gunter, Id. 321 ; 1 Keman, 368. And a 
 manifest mistake may be disregarded, without amendment. , Harmony v. Bingham 
 1 Duer, 210 ; Russell v. Conn., 20 N. Y. 81. 
 
 (3) 8 Bing. 480. , 
 
 (4) 4 B. & Ad. 479. 
 
 (5) 9 Dowl. P. C. 430. 
 
 Where all the essential facts are put in issue by the pleadings, but the plaintifiF proves a 
 different cause of action from that alleged in his complaint, the court will order the 
 pleadings to be properly amended on the trial ; and the plaintiff may recover on the cause 
 of action proved, though the pleadings be not in form amended. Hall v. Gould, 3 Kernan 
 E. 127 ante, notes 227 and 229. 
 
 (6) Ryder v. Malbon, 3 C. & P. 594. 
 
 (7) Brooks v. Blanchard, 1 C. & M. 779. In Briant v. Eicke {tit supra), an erroneous 
 statement of a judgment was amended from the examined copy of the judgment pro- 
 duced in evidence ; but this, as will.be seen hereafter, is primary evidence of a judgment 
 SeeVoLU,Gha.p.3, Proof of Records. 
 
 (8) Jelf v. Oriel, 4 C. & P. 22. 
 
742 The /Substance only of the Issue needs be proved. [ch. xir. 
 
 through such carelessness or ignorance, was one of the objects of the legis- 
 lature in passing the act. 
 
 Indictment. The reported decisions upon this statute, with regard to 
 amendments in cases of misdemeanor, are very few, and are confined 
 to indictments for perjury. 
 
 The judges appear to have shown a disposition to make amendments in 
 such cases but very sparingly,(l) upon the grounds, it seems, that by an 
 amendment a presentment on oath by the grand jury ia altered ; and that 
 variances, by ordinary care in collation, might be avoided. (2) 
 
 In one case, (3) where the indictment alleged that a judgment was 
 *876 *entered up " in or as of Trinity Term, 5 Wm. IV," and the copy 
 of the judgment was dated " June 26th, 5 "Wm. IV," (4) Patteson, 
 J., after consulting with Littledale, J., refused to amend the indictment. 
 
 In another case, (5) where it was alleged that, under a commission to ex- 
 amine witnesses, A., B., C, and D. were commanded to examine the 
 witnesses, and it appeared from the commission, when put in, that A., B., 
 C, and D., " or any three or two of them," were so commanded ; Coleridge, 
 J., refused to amend the record by the insertion of the words that had been 
 accidentally omitted. 
 
 But in a later case, f 6) where the indictment alleged that A. had produced 
 the aifidavit of B., " mtitled in the Court of Chancery, in a suit between 
 the Commissioners of Charitable Donations, &c., and IJ, J. ;" and the 
 aifidavit, when produced, was entitled, " In Chancery ; between the Com- 
 missioner of," &o.. Lord Denman amended the record by striking out the 
 word "intitled." 
 
 A much fuller remedy and more complete power of making amendments 
 in civil actions was given to judges and courts of record, by the statues -3 
 & 4 Wm. IV, c. 42. 
 
 Allowing amendments to be m,ade on the record in certain cases. — The 23d 
 section of that act recites, that " great expense is often incurred, and delay 
 or failure of justice takes place at trials, by reason o? variances,{^) as to 
 some particular or particulars between the proof and the recital,{^ or set- 
 ting forth on the record or document on which the trial is had, of contracts, 
 customs, presci-iptions, names, and other matters or circumstances not 
 material to the merits of the case, and by the misstatement of which the 
 opposite party cannot have been prejudiced, and the 'same cannot in any 
 case be amended at the trial, except where the variance is between any 
 matter in writing or in print produced in evidence and the record, and 
 that it is expedient to allow amendments to be made on the trial of the 
 cause:" it then enacts, "that it shall be lawful for any court of record, 
 holding plea in civil actions, and any judge sitting at Nisi Priiis, if such 
 court or judge shall see fit so to do, to cause the record, writ, or document, 
 on which any trial may be pending before any such court or judge, in any 
 civil action, or in any information in the nature of a quo warranto or pro- 
 ceedings on a mandamus, when any variance shall appear between the proof 
 and the recital or setting forth on the record, writ, or document on which 
 
 the trial is proceeding, of any contract, custom, prescription, name or 
 *Sl'J other matter, in any particulars, in the *judgment of such court or 
 
 judge, not material to the merits of the case, and by which the 
 
 (1) By Patteson, J., 7 C. & P. 561 ; by Coleridge, J., 9 Id. 789. 
 (3) By Coleridge, J., ut supra. 
 
 (3) R. V. Cooke, 7 C. & P. 559. 
 
 (4) Pursuant to the Kule of Court, Hil., 4 Wm. IV, No. 3. 
 
 (5) R. V. Hewins, C. & P. 786. 
 
 (6) R. V. Christian, Car. & M. 388. 
 
 (7) " Vacancies," in tlie king's printer's copy. 
 (^) " Record," in the king's printer's copy. 
 
CH. XII.] Of Amendments in Civil Suits. 743 
 
 opposite party cannot have been prejudiced in the conduct of }iis action, 
 prosecution or defense, to be forthwith amended by some officer of the 
 court or otherwise, both in the part of the pleadings where such variance 
 occurs, and in every other part of the pleadings which'' it may become 
 necessary to amend, on such terms as to payments of costs to the other 
 party, or postponing the trial to be had before the' same or another jury, or 
 both payment of costs and postponement, as such court or judge shall think 
 reasonable; and in case such variance shall be, in some particular or par- 
 ticulars, in the judgment of such court or judge, hot material to the merits 
 of the case, but such as that the opposite party may have been predjudiced 
 thereby in the conduct of his action, prosecution or defence, then such court 
 or judge shall have power to cause the same to be amended upon payment 
 of costs to the other party, and withdrawing the record or postponing the 
 trial aforesaid, as such court or judge shall think reasonable ; and after any 
 such amendment the trial shall proceed, in case the same shall be proceeded 
 with, in the same manner in all respects, both with respect to the liability 
 of witnesses to be indicted for perjury, and otherwise as if no such vari- 
 ance had appeared; and in case such trial shall be had at Nisi Prius, or by 
 virtue «>f such writ as aforesaid,(l) the order for the amendment shall be 
 indorsed oo. the postea or the writ, as the case may be, and returned to- 
 gether with the record or writ ; and thereupon such papers, rolls and other 
 records of the court from which such record or writ issued, as it may be 
 necessary to amend, shall be amended accordingly; and in case the trial 
 shall be had in any court of record, then the order for amendment shall be 
 entered on the roll or other document upon which the trial shall be had ; 
 provided that it shall be lawful for any party who is dissatisfied with the 
 decision of such judge at Nisi Prius, sheriif or other officer, respecting his 
 allowance of any such amendment, to apply to the court from which such 
 record or writ issued, for a new trial upoh that ground ; and in case any 
 such court shall think such amendment improper, a new trial shall be 
 granted accordingly, on such terms as the court shall think fit, or the court 
 shall make such order as to them may seem fit." 
 
 Special finding. The twenty-fourth section enacts, " That the said court 
 and judge shall and may, in all such cases of variance, instead of causing 
 the record or document to be amended as aforesaid, direct the jury to find 
 the §ict or facts according to the evidence, and thereupon such finding shall 
 be stated on such record or document, and, notwithstanding the finding on 
 the issue joined, the said court, or the court from which the record 
 *878 has issued, shall, *if they shall think the said variance immaterial to 
 the merits of the case, and the mis-statement such as could not have 
 prejudiced the opposite party in the conduct of thff action or defense, give 
 judgment according to the very right and justice of the case. (2) 
 
 The power of amendment given by this act extends only to civil actions, 
 or infoi-mations in the nature of quo warranto, or proceedings on a marir 
 damnus. 
 
 The variances which are amendable are those which appear between the 
 proof — and the recital or setting forth on the record, writ, or document, on 
 which the trial is proceeding — of any contract, custom, prescription, name, 
 or other matter. 
 
 (1) Writ of trial before the slieriff under § 17. See as to amendment on trial of issues 
 before the sheriff, 1 Hill v. Salt. 2 C. & M. 420. 
 
 (2) The Common Law Procedure Acts of 1852 and 1854, have still further amplified the 
 authority of courts, and judges sitting at Nisi Prius, to correct errors and defects in civil 
 proceedings, and make all such amendments as may be necessary for the purpose of 
 determining in the existing suit the real question in controversy between the parties 
 either with or without costs, as to the judge may seem fit. 15 & 16 Vict. c. 76 S 222 and' 
 17 & 18 Vict. c. 125, § 96. " ' 
 
744 The Substance only of the Issice needs be proved. [ch. xri. 
 
 Amendments how mada. The power of making amendments, is to be 
 exercised, by causing the record, writ or document on which the trial is 
 pending, to be amended by some officer of the court, or othei-wise, in the 
 part of the pleadings where the variance occurs, and in every other part of 
 the proceedings which it may become necessary to amend. 
 
 The judge is authorized to order such variances to be amended, in any 
 particular which in his judgment is not material to the merits of the case, 
 and by which the opposite party cannot have been prejudiced in the conduct 
 of his action, prosecution or defense ; the terms on which the amendment 
 is to be made, are payment of costs, or postponing the trial, or both pay- 
 ment and postponement, as the judge may think reasonable ; the amendment 
 is to be forthwith made, and after amendment the trial to proceed (if it 
 proceed) in the same manner in all respects as if no such variance had 
 appeared. 
 
 Where variance may be prejudical. Power is also given to the judge to 
 djrect amendments to be made, even in cases where the variance is in some 
 particular by which the opposite party may have been prejudiced in the con-r 
 duct of his defense, provided the variance is not material to the merits of 
 the case. In these cases, the amendment may be made on payqient of rea- 
 sonable costs to the other party, and withdrawing the record, or postponing 
 the trial. The power of amending in these latter cases, where the opposite 
 party may have been prejudiced by the variance, is the same as that in the 
 cases before mentioned, when the opposite party cannot have been prejudiced ; 
 but the terms, on which the amendment is to be made, vary iik some 
 *8'79 small degree— the power of ordering *the record to be withdrawn 
 being given in the latter case, but not in the former. 
 
 The words of the act, relating to the particular in which the amendment 
 may be made, namely, where the variance appears " in any partieula/r or 
 particulars in the judgment of the court or judge not material to the merits 
 of the case," are very general and undefined. The words immediately 
 following, which are specific, and which point to circumstances clearly con- 
 nected with the merits of the case, " and by which the opposite party 
 cannot have been prejudiced in the conduct of his action," &c., seem 
 intended as an explanation or qualification of the more general expressions 
 in the preceding clause. Those general expressions may at least be taken 
 to relate to the substantive matter which the parties come to try, without 
 reference to the precise terms of the defense, (l) 
 
 If the judge allows an amendment, and one of the parties is dissatisfied 
 with his de;cision, he may take the case before the court in banc ; and if 
 they think the amendnjent improper, they have power to direct a new trial, 
 or make such other order as they may think fit. But the court will not 
 interfere, unless it plainly appears that the judge was wrong, or that the 
 defendant was prejudiced by the amendment.(2) 
 
 If the judge refuses to allow an amendment at the trial, the statute 
 (apparently by an oversight) affords no remedy, and the court in banc will 
 not interfere with his decision. (3) 
 
 Lastly, if the judge at the trial wishes to avoid the responsibility of 
 ■deciding upon the question of amendment, he may (under the twenty- 
 fourth section), direct the jury to find the facts according to the evidence, 
 
 (1) See by Tindal, C. J., 9 Dowl. P. C. 406. 
 
 (2) Sainsbury v. Matthews, 4 M. & W. 843. 
 
 (3) See Doe d. Poole v. Errington, 1 A. & E. 750 ; Whitwill v. Scheer, 8 Id. 809 ; Jenkins 
 V. Phillips, 9 C. & P. 768. But see Pullen v. Seymour, 6 Dowl. P. C. 164. It has been 
 doubted whether the court in banc has any power to revise the decision of a judge at 
 Nisi Prius with regard to allowing or refusing an amendment under the previous siat. 
 .9 Geo. IV, c. 15. See Parkes v. Edge, 1 C. & M. 429. 
 
CH. XII.] Of AmendmenU in Ciml Suits. 745 
 
 and 80 leave the question as to the materiality of the evidence to the 
 decision of the court in banc. 
 
 Where the facts are specially found under this section, it is not unusual 
 for the parties at the trial to consent that the oouft shall have the Same 
 power to amend, if they think it a case for amendment, as the judge had 
 at Nisi Prius ;(1) but, m the absence of any such consent, the court cannot 
 amend the record, nor impose terms upon the party ultimately succeed- 
 ing ;(2) nor, if they consider the variance material, can they expunge the 
 
 indorsement of the special finding. (3) 
 *880 *The very large powers granted by this act for amending the record 
 hav« enabled the courts to reduce the expenses of prolixity in plead- 
 ing; with this view, they have made rules prohibiting a multiplicity of 
 counts and pleas. To prevent these restrictive rules from operating to the 
 prejudice of parties, it is necessary that the power of making amendments 
 and correcting variances, should be exercised liberally, — at the same time 
 exercised cautiously, so as not to prejudice either party on the real and 
 substantial merits of the case. (4) 
 
 In proportion to the strictness of the courts, on the one hand, in reduc- 
 ing the number of counts in declarations, must be, on the other hand, the 
 liberality of ex-ercising the power of amendment. The accuracy of a con- 
 tract may be ambiguous, and it must be set out according to its legal effect : 
 if a mistake is made, and the legal effect is misstated, great injury would 
 be done by the rule which confines the plaintiff to one count, unless the 
 judge at trial should allow the error to be set right by amendment. And 
 in case he entertains a doubt, the best course will be to allow, rather than 
 disallow, the amendment ; for if he allows at the trial an amendment which 
 ought not to be permitted, the statute provides a remedy ; but, as before 
 stated, there is no remedy when the judge does not allow the amend- 
 ment. (5) 
 
 Amendment when to he m,ade. An amendment of the record, at, Nisi 
 Prius, must be made (at least where the record is not withdrawn) (6) during 
 the trial, and before the yerdict, except when both parties consent to an 
 amendment afterwards. This construction of the statute may be inferred 
 from those parts which speak of amendments to be made on t/ie trial, and 
 to be made forthwith, and of the document amended as that on which the 
 trial is proceeding, and still more strongly from the recital, that it is expe- 
 dient to allow the amendments to be made on the trial of the cause. It 
 has been decided that amendments cannot be made after verdict. (7) 
 
 It is now proposed to consider respectively the cases in which amend- 
 ments have been allowed under the statute, and in which they have Tbeen 
 disallowed. i 
 
 1. Cases in which amendments have been allowed. 
 
 Amendments have been generally allowed where a contract, a duty, or 
 • other matter alleged in the pleadings, has been more general or more 
 *881 *particular than the proof adduced in support of it, or where there 
 has been a misdescription of such contract or duty. 
 
 (1) See Parry v. Fairhurst, 3 C, M. & B. 190 ; cit. by Patteson, J., 5 A. & E. 126 ; Roberts 
 V. Snell, 1 M. & G. 577. See, also, Chapman v. Sutton, 2 C. B.^34. 
 
 (2) Guest V. Elwes, 5 A. & E. 118. And see Davis v. Dunn, 1 Dowl. (N. S.)'S17. 
 
 (3) Knight v. M'Douall, 12 A. & E. 438. 
 
 (4) See by Parke, B., 4 M. & W. 347. See, also, Doe d. Marriott v. Edwards, 1 Moo & 
 R. 321 ; and by Tindal, C. J., 9 Dowl. P. C. 405. * 
 
 (5) See by Coleridge, J., 9 C. & P. 769. 
 
 (6) See supra, p. 879. 
 
 (7) Doe d. Bennett v. Long, 9 C. & P. 773 ; Brashier v. Jackson, 6 M. & W. 549. But 
 where the court grants a new trial, they may allow amendments, not under the statute 
 but by their common-law jurisdiction. See Doe d. Bacon v. Brydges, 6 M. & (J. 350. 
 
 Vol. I, 94 
 
746 The Substance only of the Issue needs be proved. [ch. xii. 
 
 The declaration in an action for a breach of warranty of a horse stated 
 a generdl warranty ; to which the defendant pleaded non-assumpsit. Upon 
 the proofs it appeared, that the warranty was "sound except in one foot." 
 The breach of warranty complained of consisted in an unsoundness of wind. 
 Alderson, B., amended the declaration, observing, that if the defense had 
 depended in any way upon the qualification of the warranty, he would not 
 have allowed it, as that would have gone to the merits. (]) So also in an 
 action on the case for a false representation of the soundness of a horse, 
 and the plea was not guilty, Alderson, B., amended the declaration, by sub- 
 stituting, for allegation that the defendant represented the horse to be 
 sound and a good worker, an allegation that the defendant represented the 
 horse to be sound in the wind. (2) ' 
 
 Where a declaration alleged a- general custom in a trade for a master to 
 pay certain expenses for a journeyman, and the custom proved was, that 
 there were certain exceptions to the master's liability, the declaration was 
 amended by the insertion of these exceptions, as proved. (3) 
 
 In an action upon a wager that a railroad would be completed by a cer- 
 tain time, " for the general conveyance of passengers ;" these words were 
 struck out of the 'declaration, the wager that was proved being that the 
 railroad would be completed by that time ; as that was construed to mean 
 that the railway should be complete, so as to be in public use. (4) 
 
 In an action for the use and occupation of " standings, market places and 
 sheds," an agreement was put in relating to a demise of " tolls" by the 
 plaintiffs to the defendant ; the declaration was amended by the insertion 
 of the w«rd "tolls." (5) 
 
 Where the plaintiff declared upon a promise that the defendant should 
 lay out a sum of money in the purchase of a government annuity, and the 
 proof was that the money was intrusted to him to lay out in a government 
 security, the variance was held to- be amendable ;(6) the only difference 
 between the allegation and the proof being, that the former stated that the 
 money was to be laid out in a particular government security, and the lat- 
 ter showed that it was to be invested in some government security ; and the 
 ground of complaint was that it was not Md out in any government 
 
 security. (Y) 
 *882 *A statement in a declaration of a contract to pay for certain goods 
 •■ to be delivered, has been altered to a statement of a contract to 
 guaranty payment for them. (8) 
 
 Where the contract alleged was that the defendant should build on a 
 certain spot of ground, a room, booth or building, and fit it Up according to 
 certain plans agreed upon, for £20, by the 28<A of June, and the contract 
 proved, which wai a verbal agreement, was that the defendant should place 
 upon a plot of ground, hired by the plaintiff, certain seats and tables, to be 
 completed four or five days before the 28*A of June, for £25, and it did not 
 appear that there were any plans agreed upon, the Judge at the trial directed 
 the declaration to be amended in conformity with the contract proved ; 
 
 (1) Hemming v. Parry, 6 C. & P. 580, commenting upon Jones v. Cowley, 4 B. & C. 445, 
 under the old state of the law. 
 
 (2) Mash V. Densham, 1 Moo. & R. 443. 
 
 In an action for false and fraudulent representations in the sale of land, what defendant 
 said immediately after the delivery' of the deed, may be proved to shew scienter or had 
 faith on his part. Thomas v. Beebe, 25 N. Y. 244. 
 
 (3) Bead v. Dunsmore, 9 C. & P. 588. 
 
 (4) Evans v. Fryer, 10 A. & E. 609. But see 8 & 9 Vict. c. 109, § 18, by which no action 
 will now lie upon a wager. 
 
 (5) Carmarthen (Mayor, &c,) v. Lewis, 6 C. & P. 608. 
 
 (6) Gurford v. Bayley, 3 M. & G. 781. 
 
 (7) See by Maule, J., 3 M. & G. 783. 
 
 (8) Hanbury v. Ella, 1 A. & E. 61. 
 
CH. xii.] Amendments under S d; 4 Wm. IV, c. 4^. 747 
 
 and the court above refused a new trial,(l) considering it to be exactly the 
 sort of case which the statute meant to provide for, though, as was urged, 
 the contract; as proved differed from that alleged, in the nature of the work 
 to be done, in the time for doing it, and in the price. (2) 
 
 In one case,(3) the variance was between a contract for certain poles to 
 be paid for on delivery, and a contract to pay cash on delivery with five 
 per cent, discount. It further appeared that part had been delivered. An 
 application to amend was opposed on the ground, that, if the contract had 
 been stated properly, the defendant might have been prepared to show, that 
 he rescinded the contract on the plaintiff's refusal to pay on the first deliv- 
 ery. Alderson, B., allowed the cause to proceed, and nothing appearing to 
 show that the defendant rescinded the contract on that ground, the learned 
 judge directed the amendment, and the plaintiff had a verdict. 
 
 When an averment in the declaration may be properly considered as a 
 statement of the legal effect of a contract, and not as a substantive part of 
 the contract, it may be amended, and the statement as to the legal effect 
 may be made conformable with that which is proved. Thus, where the 
 declaration on a charter party, after setting out that part of the contract 
 which related to the voyage, alleged a promise to have an agent at a plaQ^ 
 named, to give orders, &c. ; but this allegation was not (as was intended) 
 a correct statement of the legal effect of the charter party ; it was struck 
 out, and another more correct statement was inserted. (4) 
 
 Where a declaration upon an agreement to refer jtated that the costs of 
 the reference and the award were to abide the event, and it appeared that the 
 agreement also provided for the costs of making the agreement a rule of 
 
 court, an amendment was permitted. (5) 
 *883 *In an action on the case against the defendants, as carriers, for neg- 
 ligence in conveying the plaintiff 's goods ; the defendants pleaded not 
 guilty. Upon the evidence, it appeared that the defendants, if liable at all, 
 were liable only to forward the goods as wharfingers. No application was 
 made for an amendment until after the defendant's' case was closed, and the 
 plaintiff's counsel was about to reply. The judge refused to amend, but 
 left to the jury the question of the liability of the defendants as, wharfin- 
 gers. The jury finding this question- in favor of the plaintiff, the judge 
 directed the verdict on the unamended issue to be entered for the defendant, 
 and the special finding of the jury to be indorsed on the record, in order 
 that, if the court should be of opinion that the amendment ought to have 
 been allowed, the declaration might be altered and set right. There were 
 special circumstances in the case showing that the defendant might have 
 been prejudiced in the conduct of his defense. The court made the rule 
 absolute for a new trial on payment of costs ; Parke, B., obServing that under 
 the circumstances, he should have exercised the power of amendment given 
 by the statute, postponing the trial to another day to enable- the defendants 
 to show the fact (notice of limited liability), which might have exonerated 
 them altogether. (6) 
 
 Where an agreement was stated in tlie pleadings to have been made 
 between the plaintiff and the defendant, and the agreement produced was 
 between the plaintiff on the one part, and the defendant and two others on 
 
 (1) Ward T. Pearson, 5 M. & W. 16. See Sainsbury v. Matthews, 4 Id. 343 ; Clark v. 
 Morrell, 1 M. & G. 841, for other examples of amendment in the statement of a contract. 
 
 (2) See Beckett v. Dutton, 7 M. & W. 157, infra, p. 883. 
 
 (3) Ivey V. Young, 1 Moo. & R. 546. 
 
 (4) WhitwiU v! Soheer, 8 A. & E. 301. But see Bowers v. Nixon, 3 C. & K. 372, infra. 
 p. 887. 
 
 (5) Duckworth v. Harrison, 5 M. & W. 427. 
 
 (6) Parry v. Fairhurst, 3 C, M. & R. 190. See Guest v. Elwes, 5 A. & E. 118, an action 
 against the sheriff for an escape ; where an omission to arrest was proved, and an amend- 
 ment was allowed. 
 
748 The Bubstance only of the Issue needs he proved. [ch. xii. 
 
 the other part, but was signed only by the plaintiff and the defendant, an 
 amendment was allowed. (1) So where a guaranty was alleged to be that 
 the defendant would repay certain advances that might be made by the 
 plaintiffs as members of a banking firm, and the guaranty in proof was, that 
 the defendant would repay the advances made by the plaintiffs " or any 
 other persons of whom the firm might from time to time consist," the decla- 
 ration was amended so as to correspond with the evidence. (2) 
 
 Amendments have also been allowed where an instrument declared upon 
 as a bill of exchange has appeared to be a promissory note; (3) and where a 
 promissory note was alleged to have been made by the defendant, dated the 
 9<A No'eember, 1838, payable on demand, and the note produced was a joint 
 and several note made by the defendant and his wife, dated the Mh Decem- 
 ber, 1837, payable twelve months after date/^i) 
 *884 In an action of trespass, (5) in which issue was joined on the plaintiffs 
 property in a close named specifically, but incorrectly, in the declara- 
 tion, Coleridge, J., allowed the name to be set right. So, a misstatement of 
 the name of a parish has been amended in an action of ejectment ;(6) and in 
 a similar action, C?) where it appeared that the day on which the right of 
 entry accrued, was subsequent to the day of the demise in the declaration 
 (being 'the Monday immediately after), Parke, B., allowed the decla- 
 ration to be amended, and the date of the demise to be altered to the day 
 preceding ; and the Court of Common Pleas afterwards were of opinion that 
 the judge had power to make this amendment. The lord chief justice said : 
 " There was a variance between the allegation in the record and the proof, 
 and this was amendable under the act. The moment the amendment is 
 made, the declaration is to be considered .to have been always in its amended 
 form, and the consent rule adapts itself to its terms." In this case, where the 
 qectment was brought for a forfeiture, the lease giving the right of-re-entry 
 was produced, ,and the amendment was made according to it ; but a similar 
 amendment will be allowed, though there is nothing to amend by, beyond 
 the necessity of the amendment to maintain the plaintiff's right of action. (8) 
 
 In an action of slander, (9) where the defendant pleaded not guilty, and 
 the variance was (according to the evidence produced at the trial) that the 
 defendant said he, had heard the plaintiff was to be tried, &c., instead of 
 saying (as represented in the declaration) positively, and as from his own 
 knowledge, that the plaintiff was to be tried ; the Court of Common Pleas 
 were of opinion that an amendment had been properly made at the trial. 
 " It may be difiicult," said Tindal, C. J., " " to give any very exact mean- 
 ing to the words of the act, " merits of the case," in an action of this sort ; 
 but it may be taken to mean the substantive matter which the parties came 
 to try, without reference to the precise terms of the defense ; and there- 
 fore the act will clearly apply to this amendment, so as to supply the 
 place of those various allegations which formerly would have been intro- 
 duced into the declaration, in order to meet every contingency which might 
 
 (1) Boys V. Aucell, 5 N. C. 380. 
 
 (3) Chapman v. Sutton, 2 C. B. 634. See, also, Boyd v. Moyle, Id. 644. But see Boucher 
 V. Murray, 6 Q. B. 363, infra, p. 886. 
 
 (3) Moilliet v, Powell, 6 C. & P. 333. The case was undefended. In the same case, 
 Alderson, B., also allowed an amendment of the judge's order, which had been obtained 
 for admitting the handwriting of the defendant and the indorsers of the instrument. 
 
 (4) Beckett v. Button, 7 M. & W. 157. See Ward v. Pearson, 5 M, & W. 16, supra, p. 881. 
 
 (5) Howell V. Thomas, 1 Moo. & R. 343. 
 
 (6) Doe d. Marriott v. Edwards, 6 C. & P. 208 ; S. C, 1 Moo. & R. 319. 
 , (7) Doe d. Edwards v. Leach, 3 M. & G. 230. 
 
 (8) Doe d. Simpson v. Hall. 5 M. & G. 795. But see Doe d. Parsons v. Heather, 8 M. & 
 W 158 ; Doe d. Poole v, Errington, 1 Moo. & R. 348 ; S. C, 1 A. & E. 750, post, p. 888. 
 
 It may be remarked that similar amendments were made in ejectment before the 
 statute. See Doe d. Hardman v. Pilkington, 4 Burr. 2447 ; Doe d. Bumford v. Miller, 1 
 Chit. R. 586. 
 
 (9) Smith V. Knoweldep, 2 M. & G. 661. 
 
CH. XII.] Amendments under S di i Wm. IV, c. j^S. 749 
 
 arise." With regard to the other words of the same act, " 5y which the 
 opposite party cannot have been prejudiced" his Lordship said, " there could 
 not be any prejudice in this case by amending the declaration, because 
 the witnesses who would be called, either to prove or disprove the 
 *885 *faet of the words being spoken would be just the same, whether one 
 set of words was used or the other." 
 
 In another action for slander,(l) the slanderous words were set out in 
 English, but the words proved to have been spoken were Welsh, of the same 
 meaning ; an amendment was allowed to be made (upon terms), by inserting 
 in the declaration Welsh words, which were the exact Welsh translation of 
 the English words, set out in the declaration. 
 
 So in an action for a libel, (2) alleged to have been " contained in a certain 
 weekly newspaper, called," &c., where the proof was that the defendant had 
 given a slip of paper containing the libelous matter to several persons to 
 read, but it did not appear that it was cut from the newspaper named, an 
 amendment was allowed by striking out-the allegation in question. 
 
 An amendment will even be made by adding a count to the declaration, 
 as e. g. a count for goods sold and delivered, where it was proved that such 
 a count was in the declaration and issue delivered,(3) and that the omission 
 was entirely casual ; or, under similar circumstances, the words " by statute" 
 might be added to a plea of " not guilty."(4) 
 
 Where the declaration alludes to " the commencement of the suit," but 
 the record does not contain the date of the writ of summons, the plaintiff 
 may be allowed to amend by annexing the writ to the record. (5) 
 
 In an action on a banker's check, where the declaration alleged notice of 
 dishonor, but the facts proved did not support that allegation, although if 
 properly alleged they would have amounted to an excuse for the want of 
 notice, Parke, B., postponed the trial, and gave the plaintiff leave to amend 
 upon terms. (6) 
 
 In an action upon a bill of exchange, where the plea alleged that the bill 
 was accepted in satisfaction of money lost by gaming and playing at vingt- 
 un, and also by playing at hazard, the plea was amended by striking out 
 the allegation as to the game of vingt-un, there being no evidence to support 
 that allegation. (7) And in a similar plea, an amendment was allowed in 
 the statement of the name o^the game. (8) 
 
 2. Cases in which amendments have been refused. « ., 
 
 The Statute of 3 & 4 Wm. IV, c. 42, it seems, gives no power to supply 
 a material omission in the pleadings. In an action of trespass for taking 
 two different articles of property, (9) Parke, B., refused to amend a 
 *886 plea *which justified the taking of the one article by extending the 
 justification to the other also. And in an action of replevin, in respect 
 of goods taken in a house and brewery, where the avowry was confined to 
 the goods in the house, an amendment was refused. (10) 
 
 Nor does the statute give any authority to amend the award of venire on 
 the Nisi Pruis record :(11) nor to strike out the name of a co-defendant who 
 
 (1) Jenkins v. Phillips, 9 C. & P. 766. 
 
 (2) Foster v. Pointer, 9 C. & P. 718. 
 
 (3) Ernest v. Brown, 2 Moo. & R. 13. 
 
 (4) See Fonnan v. Dawes, Car. & M. 127. 
 
 ^5) Cox V. Painter, 7 C. & P. 767 ; S. C, 6 A. & E. 491. 
 
 (6) Jackson v. Carrington, 2 C. & K. 750. 
 
 (7) Cooke V. Stratford, 13 M. & W. 379. i" 
 
 (8) Marten v. Barrett, 2 C. & K. 717. 
 
 (9) John V. Currie, 6 C. & P. 618. 
 
 (10) Bye V. Bower, Car. & M. 262. As to casual omissions in copying the record, see 
 Ernest v. Brown, 2 Moo. & R. 13 ; Forman v. Dawes, Car. k M. 127, supra, p. 885. 
 
 (11) Adams v. Power,^7 C. & P. 76. Such an amendment must be made by a judge at 
 chambers. Id. 
 
750 The Substance only of the Issue needs he proved. [ch. xii, 
 
 was not fixed by the evidence ;(1) nor to increase the amount of damages 
 laid in the declaration. (2) But in an action on a bond in which the penalty- 
 was laid at £260, an amendment of the amount to £200, thereby diminishing 
 the sum claimed, was held to be proper. (3). 
 
 An amendment, which would introduce an entirely new contract and new 
 breach, is not within the statute. Thus, where the declaration stated that 
 the plaintiff became and was tenant to the defendant of a messuage, on terms 
 contained in articles of agreement between them, whereby the defendant 
 agreed to grant a future lease ; and that the defendant promised that the 
 plaintiff should hold and enjoy without eviction; and alleged as a breach 
 that one B. having lawful title, evicted the plaintiff; it was held(4) that 
 amendments could not be made in order to treat the agreement, not as an 
 actual demise, but merely as an agreement for a future lease ; and to make 
 the breach consist, not in the eviction of the plaintiff, but in the defendant's 
 not having a title to grant a lease. 
 
 So where a declaration on a guaranty stated that, in consideration that 
 the plaintiff would make advances of money to B., the defendant promised 
 to repay the'^laintiff such sum if B. should make default, the breach being 
 that B. did make default, and the defendant did not repay the plaintiff; and 
 the plea was, that the plaintiff did not make the advances to B. ; it was held 
 that the record could not be amended, by stating in the declaration the 
 consideration to be, that the plaintiff would procure the B. and A. bank, in 
 which the plaintiff was a partner, to make advances of money to B., and the 
 defendant's promise to repay the bank, and the breach that the defendant 
 did not rejjay the bank ; and in the plea, that the plaintiff did not procure 
 
 the bank to make the ddvances.(h^ 
 *887 *Even the introduction of entirely new matter seems objectionable. 
 Thus, where to action upon a promissory note, the defendant pleaded 
 that the plaintiff had received another note from the defendant and a third 
 person, in satisfaction of the note declared on ;(6) and it appeared in evidence 
 that this other note had been received in satisfaction, not of the note declared 
 on, but of an intermediate note, which had been given by the defendant 
 alone, in satisfaction of the note declared on ; it was held that the judge at 
 the trial had no power to amend the plea by the substitution of a descrip- 
 tion of the intermediate note. * i 
 
 Although, as has been seeUjC?) where a party states the legal effect of a 
 contract, an amendment will in general be allowed, to make the statement 
 conformable to the legal effect of the contract proved ; yet the power of 
 amendment will not be exercised where a party has designedly framed his 
 pleading in a manner which gives rise to the objection ; thus, if a deed were 
 recited according to what a party contended was its legal effect, and the 
 judge should decide that was not its legal effect, it seems this is not a case 
 for amendment. (8) '^ 
 
 If a covenant in a lease is alternative, that the tenant shall do one of two 
 things, and the plaintiff in an action upon the covenant assign as a breach 
 an omission to do one of the two things only, the judge ought not to amend 
 
 (1) Cooper V. Whitehouee, 6 C. & P. 545. 
 
 (2) Watkins v. Morgan, 6 C. & P. 661. In Doe v. Katz (8 Id. 315), Lord Denman, C. J., 
 before the cause was called on, allowed the amounts mentioned in tlie counts in an action 
 of debt to be altered from £100 to £200, where the particulars of demand claimed £168. 
 But this was done by the consent of the defendant's counsel, and without reference to the 
 statute. 
 
 (3) Hill V. Salt, 2 C. & M. 430. 
 
 f4) Brashier v. Jackson, 6 M. & W. 549. 
 , (5) Boucher v. Murray, 6 Q. B. 363. But see Chapman v. Sutton, 2 C. B. 634, mpra, p. 
 883. 
 
 Daniel v. Preece, 5 Q. B. 440. 
 Whitewill v. Scheer, 8 A. & E. 301, swpra, p. 883, 
 (8) Bowers v. Nixon, 2 C. & K. 872. 
 
CH. XII.] When Amendments refused. 751 
 
 the declaration by adding the rest of the covenant, if there are other issues 
 which it -would be difficult to adapt to the amended declaration. (1) 
 
 An amendment of the declaration will also be i-efused^ if it appears 
 probable that the variance may have prevented the defendant from pleading 
 a good bar to the action ;(2) or if the amendment in the declaration is one 
 which might have induced the defendant to plead diiferent pleas, or to 
 demur. (3) Thus, in an action of covenant by the assignee of the reversion 
 against the personal representative of the lessee, where the declaration set 
 out a deed purporting to be attested by two witnesses, whereby one J. P., in 
 pursuance of a power, appointed the premises to the plaintiff, and the 
 defendant traversed the appointment ; it appearing at the trial, that one of 
 the attesting witnesses was the wife of the appointee, and that the deed 
 was void as not being executed in pursuance of the power, the court 
 expressed a strong opinion that the declaration could not be amended 
 *888 * at Nisi Prius, by stating the deed as operating, either by way of 
 grant or as a covenant to stand seized to uses. (4) 
 
 Where the plaintiff complained of an injury sustained by the diversion 
 of a watercourse, the right to which he claimed in respect of a mill, and 
 the defendant traversed the right to the watercourse; (5) it appeared at the 
 trial, before Alderson, B., that the mill was of modern erection, and that 
 therefore the plaintiff's claim to the water was not in respect of the mill, 
 but ex jure naiuroe, in right of the stream running to his land, and of an 
 antecedent appropriation of the* water by the plaintiff before the erection 
 of the mill. An '^plication to amend the declaration was refused, but the 
 learned judge directed a special finding under the 24th section, that 
 the defendant had diverted the water from its accustomed and proper 
 course to the plaintiff's premises, as they existed before the mill was erected. 
 The verdict was entered for the defendant on the issue. On a motion for 
 entering judgment for the plaintiff " according to the right and justice of 
 the case," the court refused the rule as prayed for, saying, that the variance 
 was material, and that the defendant might have prepared his defense to 
 meet the claim made in respect of the mill, and not of the land. (6) 
 
 In an action of ejectment,(7) where the demise was joint by two lessors 
 of the plaintiff, it appeared that they claimed as tenants in common : an 
 application was made to amend, by striking out , the name of one "of the 
 lessors of the plaintiff, or adding proper words applicable to the title as it 
 appeared. Taunton, J., refused the application, being of opinion that the 
 amendment was in a particular very material to the merits of the case. (8) 
 
 Where a declaration in ejectment omitted the year of the demise, though 
 it mentioned a day, it was held that the judge at the trial had improperly 
 amended it by inserting the year, according to the title as proved. (9) 
 
 It has been seen what amendments will be allowed in actions for slander 
 and libel; (10) but where inuendoes have been improperly introduced 
 
 <1) Richards v. Bluck, 6 C. B. 437. 
 
 (2) Ivey V. Young, 1 Moo. & R. 545. 
 
 (3) See by Maule, J., 3 M. & G. 784, 785. 
 
 (4) Perry v. Watts, 3 M. & G. 775, explained by Maule, J., ut supra, An arrangement 
 was ultimately come to between the parties. 
 
 (5) Frankum v. Falmouth (Earl), 6 C. & P. 529 ; S. C, 2 A. & E. 451. 
 
 (6) 2 A. & E. 455. 
 
 (7) Doe d. Poole v. Errington, 1 Moo. & R. 343. 
 
 (8) See Doe d. Bacon v. Brydges, 3 M. & G. 304. It may, perhaps, be doubted, whether 
 the decision in Doe d. Poole v. Errington would now be acted upon. It followed very 
 soon after the passing of the statute. 
 
 (9) Doe d. Parsons v. Heather, 8 M. & W. 158. The plaintiff, however, is not prejudiced 
 in such a case, as the omission is not a ground of nonsuit. The proper ' course for a 
 defendiint, under such circumstances, is to apply to the court to compel the plaintiff to 
 insert the correct date. By Parke, B., Id. 
 
 (10) Supra, p. 885. 
 
752 The Suhstarice only of the Issue needs be proved. [ch. xn 
 
 *889 in *the declaration, the judge will not amend the record by striking 
 them out.(l) 
 
 It has been said by Lord Denman, C. J., (2) that the statute does not apply 
 to the amending of pleadings so as to remove objections which would have 
 been good in arrest of judgment ; its object being to prevent nonsuits on 
 variances, and not to make pleadings good which are vicious in themselves ; 
 but this observation was extra-jlidicial, and it has since been decided by the 
 Court of Common Pleas(3) that the authority of the judge to amend is not 
 affected by the circumstance that the amendment would deprive the defend- 
 ant of a ground of motion in arrest of judgment ; if he means to avail himself 
 of an arrest of judgment he should not urge the point of variance. (4) 
 
 Where a declaratiort, after reciting two several contracts between the 
 parties, alleged that they agreed to consolidate them, but the several con- 
 tracts alOne were proved in evidence, and the fact of an agreement to 
 consolidate was negatived : it was ruled that the variance was fatal, and that 
 
 the declaration could not be amended. (5) 
 
 % 
 
 1. Of variances in criminal cases. 
 
 Proof of time. The rule that it is not necessary to prove the time pre- 
 cisely as laid, unless that particular time is material, is the same in criminal as 
 in civil cases. (6) This is the constant course of proceeding in criminal prose- 
 cutions from the highest offense to the lowest ; although every material fact 
 must be alleged in the indictment to have occurred on a day certain and at 
 a particular place. (7) It is sufficient if the offense with •which the party is 
 charged is proved to have occurred before, the finding of the bill by the 
 grand jury. In high treason, evidence may be given of an overt act either 
 before or after the day specified in the indictment ; the particular day is not 
 material in point of proof, and is merely matter of form. Objections of this 
 kind, on behalf of the prisoner, have been repeatedly overruled. (8) 
 
 *890 *Proof of place. On the trial of an indictment, f®r an offense of a 
 transitory nature, such as treason, murder, larceny, or even highway 
 robbe?-y,(9) it will be sufficient to show, that the offense was committed in 
 some place within the jurisdiction of the court. Mr. Sergeant Hawkins 
 says, (10) it seems to be agreed, that the mistake of the place, in which an 
 offense is laid, will not be material upon the evidence, of the plea of not 
 guilty, if the fact be proved at some other place in the same county. Even 
 
 (1) Prudhome v. Fraser, I Moo. & R. 435. 
 
 (2) In Atkinson v. Raleigh, 3 Q. B. 79, 86. See, also, by Patteson, J., Id. As to amend- 
 ing a plea, pleaded to two counts, so as to make it applicable to one only, see Callendar 
 V. Dittrich, 4 M. & G. 68. 
 
 (3) Harvey v. Johnston, 6 C. B. 295. 
 
 (4) By Wilde, C. J., Id. 398. 
 
 (5) Moncrieff V. Reade, 3 C. & K. 705. 
 
 (6) Bwpra, p. 854. 
 
 (7) See R. v. Holland, 5 T. R. 634 ; R. v. Haynes, 4 M. & S. 214 ; R. v. O'Connor, » Q. B 
 16. See, also, 7 Geo. IV, c. 64,8 30. 
 
 (8) Lord Balmarino's Case ; Lord Kilmarnock's Case ; Townley's Case ; How. St. Tr. ; 
 Post. 8. See R. v. Levey, 3 Stark. R. 458, as to a misdemeanor. Seo, also, R. v. Trehame, 
 1 Mop. Cr. C. 298, where the offense was alleged to have been committed before the passing 
 of the statute upon which the prisoner was tried. 
 
 Note 348. — The authorities are uniform in support of the doctrine contained in the 
 text. 3 Hawk. P. C, b. 3, c. 46, § 169 ; 2 Inst. 318 ; 3 Id. 280 ; 1 Hale's P. C. 361 ; 3 Id. 
 179 ; Macnally's Ev. 496, 497, et sea. ; The State v. Hanney. 1 Hawks" Rep. 460 ; Common- 
 wealth V. Harrington, 3 Pick. 36 ; 4 Starkie's Ev. 1568 ; Starkie's Crim. PI. 68, But where 
 the date of a particular fact is necessary to ascertain with precision the offense charged, it 
 must be proved as alleged. 10 Petersd. Abr. 508, note. So, where a day is averred, by 
 way of describing a written instrument. Id. And seo note 247, 
 
 (9) See R. v. Dowling, Ry. & M. Cr. C. 433. 
 
 (10) Bk. 2, ch. 35, § 84. 
 
CH. XII.] - Amendments in Criminal Gases. 753 
 
 if there should appear to be no such parish in the county, as that laid, it 
 
 has been doubted whether the indictment would be bad.(l) 
 *891 *Where, however, the offense is of a local character, such as riot- 
 ously demolishing churches, &c.,(2) maliciously firing a dwelling 
 house, (3) and the like, if there is no such place as that laid in the 
 indictment, the prisoner must . be acquitted ; unless the local offense with 
 which he is charged includes a transitory offense, when the prisoner, though 
 he must be acquitted of the former, may be convicted of the latter ; thus, 
 upon an indictment for burglary, or housebreaking, (4) or stealing in a 
 dwelling house, (5) if the locality of the premises is wrongly described, the 
 
 (1) R. V. Bowling, ut infra; R. v. Woodward, Ry. & M. C. C. 333 ; R. v. Perkins, 4 C. & 
 P. 363. But Bee 9 H. V, st. 1, c. 1. 
 
 Note 249. — This, however, is only so where the place is laid as mere matter of venue. 
 But if a certain place is made part of the description of a fact charged in the indictment, 
 the least variance as to such place will be fatal ; as where a trespass in taking away goods, 
 or other offense, is alleged in such a parish, in the house of J. S., or in Such a parish, in a 
 play-house in Lincoln's inn fields ; and upon evidence it appears to have been done at the 
 house of a different person, or that there is no play-house in Lincoln's inn fields. Hawk. 
 P. C. b. 3, c. 46, § 171 ; Macnally's Ev. 501. In Regina v. Carnage (3 Salk. 385), the 
 defendants were indicted for riotously assembling at the parish of St. Giles, in the fields, 
 and breaking and entering the bedchamber of Sarah S., in the dwelling-house of D. James, 
 and taking and carrying away certain goods. Upon evidence, it appeared to be the dwel- 
 ling-house of D. Jameson ;' ssni held, that though part of the offense was transitory, viz : 
 the taking and carrying away the goods, yet the other part being local, and the whole 
 being put together as one entire fact, under one description, the variance in respect to the 
 dwelling-house was fatal to the prosecution. Mr. Starkie doubts the propriety of this 
 decision, and suggests a guere, whether, under such circumstances, the defendant might 
 not be convicted of that which is merely transitory, though the prosecutor fail as to the 
 local part (4 Starkie's Evidence, 1571, n. e); but he cites no authority showing that the case 
 has been overruled. 
 
 Where the offense charged is of a local nature, as in burglary, &c., whatever is alleged 
 by way of describing the place where it was committed, must be proved as laid (Rex v. 
 White, East's P. C. 780 ; Rex v. Woodward, Id. ; The State v. Martin, 3 Murph. 533) ; and 
 though the description be more particular than was necessary, the whole must be estab- 
 lished. Rex V. Owen, Ry. & Mood. Cr. Cas. 118. But where locality does not enter into 
 the substance of the charge, and the description is wholly immMeriaJ,, it may be rejected 
 as surplusage, and a variance will not be fatal. 
 
 Though the allegation of place be intended only as venue, it is nevertheless so far 
 important, that the prosecutor must prove the offense charged to have been committed in 
 the county where the venue is laid ; and if this be not made out, or the contrary be shown 
 in evidence, the defendant will be acquitted, except where a different rule has been pro- 
 vided by statute. See 1 Chitty's Crim. Law, 177. In larceny, however, if property is 
 stolen in the county of A., and carried into the county of B., the offender may be convicted 
 in the latter place, under an indictment charging the offense to have been committed 
 there (Hawk. P. C. b. 1, c. 151) ; and it has been a question in some of our courts whether the 
 same doctrine applied to the case of property stolen in one state and cajried into another. 
 In Massachusetts the course of decision has been uniform that it did. Commonwealth v. 
 Cullens, 1 Mass. Rep. 116 ; Commonwealth v. Andrews, 3 Id. 14. And the solicitor-gen- 
 eral, in the case last cited, referred to another which Dana, C. J., said he remembered ; it 
 was that of Paul Lord, who broke open a shop in Rhode Island, and stole goods which he 
 brought into York county, Massachusetts, where he was indicted as for a theft committed 
 there ; and it was determined by the whole court, five justices being present, that he 
 might be convicted of the larceny, though not of the shop breaking. In New York, how- 
 ever, until recently a contrary doctrine has prevailed. The People v. Gardner, 2 John . 
 Rep. 477. But now it is expressly provided by statute, that "every person who shall 
 feloniously steal the property of another in any other state or country, and shall bring the 
 same into this state, may be convicted and punished in the same manner as if such lar- 
 ceny had been committed in this state ; and in every such case, such larceny may be 
 charged to have been committed in any town or city, into, or through which such stolen 
 property shall have been brought." 3 R. S. 698, § 4. See The People v. Burke, 11 
 Wend; 129. 
 
 (2) R. V. Richards, 1 Moo. & R. 177. 
 
 (3) R. V. Woodward, ut supra. 
 
 (4) R. V. St. John, C. & P. 40 ; E. v. Bullock, cit. 1 Moo. Cr. C. 324, n. ; R. v. Brookes, 
 Car. & M. 543 ; S. C, 2 Russ., Cr. & M. by Greaves, 801. 
 
 (5) R. V. Napper, 4 Moo. Cr. C. 44 ; R. v. Jackson, 2 Russ., Cr. & M. 801. 
 
 Vol. I. 95 
 
754 The Substance only of the Issue needs he proved. ' [cii. xii. 
 
 prisolier cannot be convicted of the major offense, though he may be of a 
 simple larceny. 
 
 Allegations in indictments as to value are not material, especially since 
 the distinction between grand and petit larceny has been abolished ;(1) 
 except where the value is essential to constitute the offeilse,^as in the case 
 of a bankrupt concealing property to the amount of £10'.'(2) 
 
 8. Of amendments in crimmal oases. 
 
 The pOwer to amend variances in criminal cases has, probably, from an 
 erroneous notion of lenity, been much more tardily given by the legis- 
 lature. 
 
 The statute 7 Geo. IV, c. 64, related to some technical defects and 
 *892 *immaterial averments in indictments and informations either in 
 cases of felony or misdemeanor. 
 
 The nineteenth section enacted that no indictment or information should 
 be abated by reason of any dilatory plea of misnomer, or jvant of addition, 
 or of wrong addition, if the court should be satisfied, by affidavit or other- 
 wise, of the truth of such plea ; but in such case the court should forthwith 
 cause the indictment or information to be amended according to the truth, 
 and should call ujjon such party to plead thereto, and should proceed as if 
 no such dilatory plea had been pleaded. Under this section, where a 
 woman was indicted for the murder of her husband, and was described as 
 "Ann, the wife of J. O.," the judges at the trial ordered an amendment 
 by striking out the word " wife" and inserting the word " widow." (3) 
 
 The twentieth section enacted " that no judgment upon any indictment 
 or information for any felony or misdemeanor, whether after verdict or out- 
 lawry, or by confession, default or otherwise, shall be stayed or reversed for 
 want of the avei-ment of any matter unnecessary to be proved ; — nor 
 for the omission of the words ' as appears by the record ;' or of the words 
 ' with force and arms ;' or of the words ' againift the peace ;' — nor for the 
 insertion of the words ' against the form of the statute /' instead of 
 the words ' against the form of the statutes,^ or vice versa; — nor for that 
 any person is therein designated by a name of office or other descriptive 
 appellation instead of his proper name ; — nor for omitting to state the 
 time of the commission of the offense where time is not of the essence of 
 the offense ; — nor for stating the time imperfectly, — nor for stating the 
 offense to have been committed on a day subsequent to the finding of 
 the indictment, or the exhibiting of the information, or on an impossible 
 day, or a day that never happened; — nor "for want of a proper or perfect 
 venue, where the court shall appear to have had iurisdiction over the 
 offense."(4) 
 
 Lord Tenterden's Act (9 Geo. TV, c. 15), gave the same powers, in trials 
 for misdemeanor, for amending variances between matters in writing 
 
 (1) By 7 & 8 Geo. IV, c. 38. 
 
 (2) Under 6 Geo. IV, c. 16, g 113. Sec R. v. Forsyth, Kuss. & B.. Cr. C. 274. 
 
 (3) R. V. Orchard, 8 CA P. 565. 
 
 (4) Before this statute, judgment was continually arrested upon indictments for the 
 causes above enumerated. 
 
 NoTB 350. — In New York, it is also provided by statute that no indictment shall be 
 deemed invalid, nor shall the trial, judgment or proceedings thereon be affected, Ist. By 
 reason of having, omitted the addition of the defendant's title, occupation, estate or 
 degree ; or by reason of the misstatement of such matter, or of the town or county of 
 his residence, when the defendant shall not be misled or prejudiced by guch misstate- 
 ment ; or, 3d. By the omission of the words " with force and arms," or words of similar 
 import ; or, 3d. By reason of omitting to charge any offense to have been committed con- 
 trary to a statute or several statutes, notvrithstanding such oflfense may have been created 
 or the punishment thereof may have been declared by any statute ; or 4th. By reason of 
 any other defect or imperfection in matter of form, which shall not tend to the prejudice 
 of the defendant. 2 R. 8. 728, § 53. , 
 
CH. XII.] Amendments in Criminal Cases. 755 
 
 *893 *as averred and as proved, as were given in civil aotion8._(l) This 
 statute did not extend to felonies^ and in these cases, till a very 
 recent period, no amendment was allowed. But by the statute 11 & 12 
 Vict. c. 46, § 4, it was enacted " that it shall and may be lawful for any 
 court of oyer and terminer and general jail delivery,(2) if such court shall 
 see fit so to do, to cause the indictment or information of any offense what- 
 ever, when any variance or variances shall appear between any matter in 
 writing or in print produced in evidence and the recital or setting forth 
 thereof in the indictment or information whereon the trial is pending, to be 
 forthwith amended in such particular or particulars by some officer of the 
 court, and after such amendment the trial shall proceed in the; same manner 
 in all respects, both with regard to the liability of witnesses to be indicted 
 for perjury^ and otherwise, as if no such variance or variances had 
 appeared." 
 
 And now at length Lord C^npbell's Act (14 & 15 Yict. c. 100), "for 
 further improving the administration of criminal justice," after reciting 
 that " offenders frequently escape conviction on their trials, by reason of the 
 technical strictness of criminal proceedings in matters not material to 
 the merits of the case : and that such technical strictness may safely be 
 relaxed in many instances, so as to insure the punishment of the guilty, 
 without depriving the accused of any just means of defense: and that a 
 failure of justice often takes place, on the trial of persons charged with 
 felony and misdemeanor, by reason of variances between the statement in 
 the indictment, on which the trial is had, and the proof of names, dates, 
 matters and circumstances therein mentioned, not material to the merits of 
 the case, and by the misstatement whereof the person on trial cannot have 
 been prejudiced in his defense," — enacts by section 1, that "whenever on 
 the trial of any indictment for any felony or misdemeanor there shall appear 
 to be any variance between the statement in such indictment and the evi- 
 dence offered in proof thereof, in the name of any county, riding, division, 
 city, borough, town corporate, parish, township or place mentioned or 
 described in any such indictment, or in the name or description of any such 
 person or persons, body politic or corporate, therein stated or alleged to 
 be injured or damaged, or intended to be injured or damaged, by the com- 
 mission of such offense, or in the Christian name or surname, or both 
 Christian name and svirname, or other description whatsoever, of any 
 *894 person or persons whomsoever therein *named or described, or in the 
 name or description of any matter or thing whatsoever therein named 
 or described, or in the ownership of any property ngpied or described therein, 
 it shall and may be lawful for the court before which the trial shall be had, 
 if it shall consider such variance not material to the merits of the case, and 
 that the defendant cannot be prejudiced thereby in his defense on such 
 merits, to order such indictment to be amended, according to the proof, by 
 some officer of the court or other person, both in that part of the indict- 
 ment where such variance occurs, and in every other part of the indictment 
 which it may become necessary to amend, on such terms as to postponing 
 the trial to be had before the same or another jury as such court shall think 
 reasonable ; and after any such amendment the trial shall proceed, whenever 
 the same shall be proceeded with, in the same manner in all respects, and 
 with the same consequences, both with respect to the liability of witnesses 
 to be indicted for perjury and otherwise, as if no such variance had occurred ; 
 and in case such trial shall be had at Nisi Prius, the order for the amend- 
 ment shall be indorsed on the postea, and returned togetl^r with the record, 
 and thereupon such papers, rolls, or other records of the court from which 
 such record issued, as it may be necessary to amend, shall be amended 
 
 (1) Vide supra, pp. 873, 874. 
 
 (3) Extended by 12 & 13 Vict. c. 45, ^ 10, to courts of general or quarter sessions. 
 
75,6 The Substance only of the Issue needs be proved. [ch. xii. ] 
 
 accordingly by the proper officer, and in all other cases the order for the 
 amendment shall either be indorsed on the indictment, or shall be engrossed 
 on parchment, and filed, together with the indictment, among the records 
 of the court ; provided that in all such cases where the trial shall be so 
 postponed as aforesaid, it shall be lawful for such court to respite the recog- 
 nizances of the prosecutor and witnesses, and of the defendant, and his 
 surety or sureties, if any, accordingly ; in which case the prosecutor and 
 witnesses shall be bound to attend to prosecute and give evidence respect- 
 ively, and the defendant shall be bound to attend to be tr^gd, at the time 
 and place to which such trial shall be postponed, without entering into any 
 fresh recogni|Zanoes for that purpose, in such and the same manner as if they 
 were originally bound by their recognizances to appear and prosecute or 
 give evidence at the time and place to which such trial shall have been so 
 postponed : provided, also, that where any such trial shall be to be had 
 before another jury, the crown and the derendant shall respectively be enti- 
 tled to the same challenges as they were respectively entitled to before the 
 first jury was sworn." 
 
 The statute also enacts that verdicts and judgments after such amend- 
 ments shall be valid,(l) and records shall be drawn up, when necess*ary to 
 be drawn up, in the amended form, without noticing the amendments. (2) 
 
 Thse important enactments have removed a grievous defect from our 
 *895 *system of criminal jurisprudence, and have assimilated the powers 
 
 of amendment in criminal cases to those which had previously been 
 conferred by the 3 & 4 Wm. IV, c. 42,(3) in civil cases. One good efiect 
 resulting from them will probably be the shortening of indictments, which, 
 as in the case of pleadings in civil actions formerly, were made to contain a 
 great variety of counts, presenting the charge in difierent forms so as to 
 meet the evidence. (4) 
 
 (1) Sect. 3. 
 
 (2) Sedt. 3. 
 
 (3) Sect. 33, supra, p. 876, et seq. 
 
 (4) Lord Campbell's Act contains several other highly valuable improvements as to the 
 form of indictments and the statement of offenses, with a view to prevent a failure of 
 justice by the escape of offenders upon purely technical grounds. The greater part 
 of these are not within the scope of the present work ; but some of them will be found 
 to be adverted to in the Introductory Chapter to this volume. 
 
 See 17 & 18 Vict. c. 135. 
 
 END OF VOL. I. 
 
INDEX. 
 
 VOLUME I. 
 
 [THB index RBFBBa TO THB MARGINAI* PAGE.] 
 
 A.. 
 
 ABATEMENT, 
 plea of for non-joinder of parties not necessary 
 when several co-contractorB sue alone, when, 
 
 853. 
 when not avallahle in snit hy one of, 8S2. 
 necessary when one of several Is sned, 862. 
 rale in actions against one of several makers of a 
 
 bona, 853. 
 not available in actions against tort feasors, BS3. 
 
 for non-feasance, when, 864. 
 not necessary, when suit upon a joint contract 
 and proof feils, 863. 
 ABDUCTION^ 
 on prosecution for, woman admissable for or 
 against accused, 95, 96. 
 ACCEPTANCE, 
 of a favorite act or offer presumed, 609. 
 of a bill of exchange. 
 
 See title Sill of Eotchange. 
 admits validity of instrument, 468. 
 bat not handwriting of indorSer, 468. 
 
 eroof of practice in accenting, 595. 
 CEPTOE, 
 discharged by foreign Judgment, afterwards here 
 on same bill. See vol. II. 
 ACCESSORY, 
 
 See title Judgment. 
 plea of guilty by principal, evidence against 
 
 accessory, 495. 
 principal competent on trial of, when, 109, 105-110. 
 ACCOMPLICES, 
 competency of as witnesses, 105-109. 
 reason for admitting thfein as, 105-lOT. 
 admi tted onder ail Implied promise of pardon, 107. 
 this promise does not extend to other crimes, 108. 
 application to coiirt to admit, as witnesses, 108, 
 
 109. 
 should not be indicted jointly with others in such 
 
 case, 108. 
 if Bo indicted, must be acquitted first, 108. 
 Indicted separately, is competent for prisoner, 109. 
 condition of their admission as witnesses, 108, 109. 
 consequences of breach of condition, 108, 109. 
 testimony so given not adinissible against them, 
 
 109. 
 acquittal of one of several jointly indicted to ren- 
 der him competent, 109, 110. 
 may be used as witness, with consent of court, 108. 
 coimnnation of, 110-117. 
 
 not legally necessary, 110, 113, 115. 
 should be confirmed, if practicable, 111, 112, 113. 
 
 in cases of misdemeanor, 113. 
 how discretion of judge exercised as to confir- 
 mation, 113. 
 principal in second degree not considered 
 accomplice within this rule, 113. 
 confirmation required, though several accom- 
 plices, 11.3, 114. 
 by accomplice's wife not snfflcient, 114. 
 extent of required, 114-117. 
 
 not as to details, 114. 
 required as to the individual prisoner, 114, 
 
 115, U6. 
 confirmation to connect individual prisoner with 
 
 the crime, 115-117. 
 dying declarations of, admissible, 288. 
 ACCORD AND SATISFACTION, 
 not shown by proof of payment of less sum, 475. 
 
 Vol. I. 
 
 ACCOUNT, 
 debtor and creditor, when admissible as contain- 
 ing entries against interest, 335, et s&q. 
 delivered and not objected, when evidence as ad- 
 
 missioh, 438, 439, 445. 
 bankrupt's, When date of must be proved, 489. 
 delivery of, evidence of credit, 451. 
 account rendered by agent binds him, 469. 
 admission of, when presented and not objected to, 
 
 437-439. 
 ACCUSED. See Prisoner. 
 ACHIEVEMENT, 
 when admissible in matters of pedigree, 266, 
 
 297. 
 See title Beanay, ii, 3. 
 ACQUIESCENCE. See title Hearsay, viii. 
 admission inferred ftom, when 443. 
 in proceedings ill bankruptcy or insolvency, how 
 
 far binding, 464. 
 license from lord, when presumed from effect of, 
 as an admission, 437-4^. 
 ACQUITTAL, 
 effect of, where indictment defective. See Vol. II. 
 necessary to render accomplice competent, 108, 
 
 100. 
 so as to co-defendant, when, 48-50, 
 ACT OP PARLIAMENT, presumed, 659. See title 
 
 Statute. 
 ACT OE STATE, 
 
 of foreign country. See Introductory Chapter. 
 ACTS, 
 
 oficial, presumption as to, 604, 642. 
 ADJUSTHENT ON POLICY, 
 not conclasive against underwriter, 478. 
 not in case of mistake, 478. 
 ADMIRALTY, 
 rule in as to competency of witnesses. See Vol. 
 m. Index. 
 ADMISSIBILITY^ 
 of evidence, decided by court, S-7. 
 of witness, time of objecting to, 97-104. 
 judge to decide upon, 3-7. 
 as to preliminary question of fact necessary to 
 determine admissibility, 3-7. 
 depends upon certain conditions precedent, 5, 6. 
 where question of, involves same question as the 
 
 one in issue, 6, 7. 
 time of objecting to, 97-104. 
 See Objection to AdmissibUity qf Witness, 97-104. 
 ADMISSIONS, See Bearsay, viii. 
 by wife, as agent for her husband, 92-94. 
 by party to suit, or person really interested, ad- 
 missible, 406-602. 
 by parties to 8uit,.402-^31. 
 evidence against, but not for party, 402, 403. 
 
 when made evidence for, 403. 
 letters written by party not evidence for him, 403, 
 
 404. 
 by an agent in recital of acts done, not received, 
 
 405. 
 unless received as part of res gestoe, 405, 466, 
 
 508-513. 
 some exceptions to general rales, 406, 456. 
 what amounts to an admission, 437. 
 declarations of a party evidence, when a part of 
 the res gestm, 404, 405. 
 not otherwise, illustrations, 404. 
 exception, in case of official returns and acts, 
 
 405. 
 
758 
 
 INDEX , 
 
 ADMISSIONS— coniim/fii?. 
 Btatemenfs and coufesuions proved by an oppo- 
 nent, 405. 
 I. Qf general admissione by party to suit, or by 
 Obe for whose beu fit the suit is brought, 
 ■ 40B-502. 
 whole admission to be received, 40fi. 
 
 though each part not entitled to same 
 weight, 407. 
 whole siateme t must be admitted, 487. 
 
 that in his favor as well as that against 
 him, 408. 
 rule applies equally to written and oral state- 
 ment, 409; 410. 
 and to books, when received in evidence, 
 
 410 
 books received, are evidence for any purpose, 
 
 409, 410. 
 against party introducing, as admissions, 409, 
 
 410. 
 and againrt party using, 409, 410. 
 rule applies to answers in chance y, 410, 413, 430. 
 claim and counter claim. 411. 
 effect of, as evidence, 410, 411. 
 of tenancy, debt due, &c , 411. 
 received with caution, 411. 
 referring to a written paper, 411, 412. 
 documents referred to in admission, 411, 412, 
 made after suit received with caution, '409, 
 
 410, 411. 
 interrogatories, 412. 
 referrinjf to letter, 412, 413. 
 examinations in bankruptcy, 412. 
 
 books referred to in admission, 413. 
 documents referred to and inclosed in letter, 413. 
 
 otherwise as to disconnected papers, 413. 
 the letter must bo proved. 412, 413. 
 in case of loss, how proved, 413. 
 limits to the general rule, 414. 
 
 distinct entries in book not to be read, 414. 
 as to series of letters copied in book, 414. 
 part of examination before commissioners of 
 bankruptcy. 414. 
 entries in books of a corporation, 414, 
 pass-book as evidence, 414. 
 conversations, rule in respect to 414, 415. 
 
 the whole may be called for, 415, 416. 
 correspondence, by letters, 410. 
 both sides of correspondence to be given, 416, 
 
 417. 
 writ containing return, 417, 
 proceedings in chancery, 417. 
 effect of receiving whole admissions, 417, 418, 
 
 419. 
 favorable part of, 417 — 419. 
 admission of an account, asserting an offset, 
 
 418, 419. 
 or counter statement, 418, 419. 
 answer in chancery. 410, 413, 430. 
 
 bill in chancery, 420. 
 effect of admission containing hearsay, 420. 
 as to contents of a Avritten document, 421. 
 
 copy of agreement, 421. 
 recital of writ, 421. 
 verbal admissions, 433. 
 not received if parol evidence inadmissible, 
 
 423, 423. 
 as to contents of written instrument, 422. 
 authorities in favor of their admissibility, -13!, 
 
 433. 
 as to assignment of lease, 439. 
 as to contents of promissory note, 432. 
 as to contents of agreement. 432. 
 of a written agreement directly in issue, 423. 
 as to a demise, 43^1 
 authorities against their admissibility, 433— 435. 
 
 weight and value of such admissions, 433. 
 written admissions, 425. 
 of dissolution of partnershlo, 435. 
 of holding shares in joint stock company, 428. 
 of conveyance of land, by answer to bill, 435. 
 mode of proviH^j such verbal af missions, 436. 
 attesting witness must be called, notwith- 
 standing admieeion, 425, 430. 
 exception In case of promissory note, 42S. 
 late English statute on subject, 426. 
 by parol, not admissible to contfadict documen- 
 tary evidence, 43li. 
 to create or destroy title, 436. 
 nor to prove matter of record, 436. 
 as discharge under Insolvent Act, 420. 
 
 ADMISSIONS— (»«««.!(«(?. 
 
 pending treaty of compromise, inadmissible, 
 when, 436, 427. 
 if in nature ot offer of settlement. 426, 427. 
 or if made expressly "without prejudice." 
 
 426, 430. 
 made in negotiation for compromise, admissible 
 to prove a conceded fact, 437-430. 
 offers of compromise, as to do or admit some- 
 - thing, inadmissible, 428, 439. 
 letters and communications, "without preju- 
 dice," inad nissible. 430. 
 admissible in proof of facts, when not without 
 prejudice, 431. 
 f where compromise completed, 431. 
 
 rule in regard to admission of collateral facts, 
 
 4;il. 
 offer to admit facts with view to arbitration, 
 
 431. 
 a statement of facts in offer admissible, 431. 
 under oath, under compulsion of law, receivable 
 in civil cases, 4.32. 
 not so in criminal cases. 432. 
 unless the witness testify voluntarily, 432. 
 examination in bankruptcy, 432. 
 under oath, evidence for strangers, 432, 433. 
 where not, for assignees of bankrupt, 433. 
 of debt, without specifying amount, 433. 
 indirect or implied admissions, 433. 
 of title in notice of sale, 434. 
 of jurisdiction in appeal, 434. 
 of particular relation or character by recogni- 
 tion. 434. 
 
 acts subsequent, showing his character, 434, 
 
 435. 
 of professional qualification, as attorney or 
 physician, 4.36. 
 
 when Admission does not admit qualifica- 
 tion, 436. 
 by demeanor. &c.,upon statement of other par- 
 ties, 436, 437. 
 
 waiver of forfeiture in lease, what is, 437. 
 by silence, when, 437, 438. 
 when an account is presented, 437, 438. 
 or a fact in form of demand asserted, 437. 
 by answering to a name, admits it is his, 437. 
 qualification of rule, 438. 
 not called upon to reply, when, 438. 
 by receiving an account current without objec- 
 tion, 438, 439. 
 
 receiving an account stated by letter, 439. 
 the not answering a letter, not admission of its 
 
 contents, 439, 444. 
 Implied from state of pleadings, 439, 440. 
 by notice given by attorney in cause, 440. 
 from acts of party or attorney, 440, 441. 
 use of evidence given in another Cause with 
 
 assent of opposite party, 440. 
 bill of exceptions not evidence in another 
 trial, 441. 
 what acts and declarations receivable as admis- 
 sions, 441. 
 naked declaration of intention not admissible, 
 
 • 441. 
 
 , of a present fact, or a fact on a day named, 
 
 441. 
 as to legal effect of a contract, not admissible, 
 
 443, 423. 
 or where matter of law involved, J53. 
 quere. If an escrow be proof of facts stated in it, 
 
 443. 
 evidence of adoption of a note, 442. 
 by acquiescence, admissions by, efl'ect of, 442- 
 
 . . , 4*6- 
 
 in criminal cases, 443, 445. 
 
 of tenancy, in receiving notice to quit, 443. 
 contents must be shown to be known, 443. 
 by bankruptcy, as to petitioning creditor's 
 debt, 443. 
 _ permitting denial, act of bankrupt, 443, 444. 
 inferred from forbearance, 444. 
 
 knowledge of rights must be shown, 444. 
 
 not inferred Itom unanswered letter, 444, 446, 
 
 , , 489. 
 
 may bo from account delivered, and not 
 
 objocti'd to, 445. 
 
 not from unanswered statement by mere 
 
 stranger, 445. 
 but the fact may be proved, 445. 
 nor where reply not expected, 446, 446. 
 party oharged, before magistrate, 448, 446. 
 
INDEX. 
 
 759 
 
 ADMISSIONS— omiinuet?. 
 
 remarks before magistrate, 446. 
 statements in making charge admissible to 
 
 show animus. 446. 
 replies admissible, if prisoner make any, 446. 
 inferred from access to books containing entries, 
 446, 447, 448. 
 books accessible to both parties, 447. 
 books of a public company, 447, 448. 
 bank books, when evidence against customer, 
 
 447, 448. 
 e. a. books of a savings bank, 447, 448. 
 between other parties or against bank, 447, 
 
 448. 
 court rolls not, by copyholders, 448. 
 inferred from papers in possession of prisoner, 
 
 448. 
 not from depositions enrolled by assignees, 
 
 449. 
 not from indorsement on feoffment, 449. 
 books ol partners against firm, 449. 
 books of bank not against customer, 449. 
 
 so of corporate company, 449. 
 documents produced by party, 449. 
 
 affidavit, 449. 
 deposition in bankruptcy, when, 449. 
 
 and wnen not, 450. 
 depositions in equity, 450. 
 evidence given in former_ trial, 450. 
 in6cri|ition of name on flage coach, 450. 
 of debt to an attorney, to be proved, not 
 
 admission of delivery, 450. 
 from treatment of subject, 4'JO, 451. 
 non-existence of claim, by olnission in sched- 
 ule of insolvent, 451. 
 to whom credit given, by delivecy of bill, 
 
 451. 
 acquiescence on receipt of a bill, 451. 
 notice of dishonor, by promise to pay bill or 
 
 note, 451. 
 settlement by relief to pauper, 451. 
 nuisance, by admission on former trial, 451. 
 admission of demand on arrest, 451. 
 not inferred from conduct, when matter of law 
 involved, 452. 
 as discharge of insolvent by Quarter Ses- 
 sions, 453. 
 as to status of marriage, 452. 
 or marriage in prosecutions for bigamy, 
 
 452. 
 admission not sufficient, 452. 
 ^ect of admission.^ as estoppels, 453—464. 
 
 where acts are done upon the faith of state- 
 ments, 453. 
 against whom receivable, 453; 454. 
 different classes of such admissions, 454. 
 admissions with a view to evidence, 454. 
 admissions or conduct inducing others to act 
 upon them, 454 — 461. 
 operate as an estoppel inpais^ 454. 
 familiar instances of, 455. 
 tenant estopped frum disputing landlord's 
 title, 455. 456. 
 a man from denying a woman to be his wife. 
 
 455, 465. 
 other illustrations of the rule, 456. 457- 
 an agent's admission binds principal, when, 
 
 456. 
 admission of debt, inducing a suit upon it, 45a. 
 receipted bill of parcels, 45(). 
 pointing out property, 456, 457. 
 suffering one^s property to be sold as that of 
 
 another, 457 
 or assigned without protest, 457. 
 sale subject to mortg-ij^e, 457. 
 admission of possession, 458. 
 of ownership of vessel, 4!:9. 
 admission of bankruptcy, 458, 
 of liability on coniract, 458 
 of execult'rsbip by conduct, 457, 459. 
 admission of agency, 459. 
 of name, 459, 460. 
 
 by assuraiug or appearing in. 459, 460. 
 aaraission of calling or profession, 469. 
 inventory concludes executor, 460. 
 as to sale, surveys, recital, account, »&c.,460, 
 
 461. 
 estoppel only in favor o^ party misled by state- 
 ment, 460i 461. 
 mietakes'Jthat do not mislead do not bind,t 
 
 461. 
 
 ADWISSJO'NS— continued. 
 
 quere as to mistakea that do, 461, 463, 466. 
 oral admissions received with caution, 462 
 admission as to what law is, or as to legal ef- 
 fect of contract of no value, 463. 
 various admissions, effect of, 463. 
 recent decisions, 463, 464. 
 taking a lease by mistake, 463. 
 
 landlord's title. 463. 
 an infant does not estop himself, 463, 529. 
 conteseions by, admissible, 533. 
 nor an officer hie successor, 463. 
 silence, standing by, 463 464. 
 representing a note business paper, 463. 
 general doctrine, 463, 464. 
 acquiescence in proceedings in bankruptcy, ^ 
 Ac, 4(i4. • 
 
 by bankrupt as to validity of fiat^ 464. 
 by petitioning creditor, 464. 
 of title in another, 465. 
 by silence or otherwise. 465. 
 by accounting with person in particular capa- 
 city, 465 
 admissions, effect of, a^estoppela by assump- 
 tion or professional character, 465. 
 by giving note or bill for goods, admits price 
 
 reasonable, 465. 
 by holding out woman as wife, 455, 466. 
 wife estopped by representations, when, 466. 
 estopped from denying assumed name, when, 
 
 466. 
 from denying liability as partner, when, 466, 
 from denying landlord's title, 467, 468. 
 what not an admission of title, 46S. 
 attornment without payment of rent, 468. 
 paymeutof rent to another party explainable, 
 
 468. 
 may show landlord's title expired, 468. 
 acceptance of bill admits drawer's signature, 
 
 468. 
 not that of indorser, 468. 
 account rendered bj' agent binds him, 469. 
 bailees admit title of bailor, 469. 
 in criminal cases, 469. 
 admissions from conduct not conclusive, 469. 
 on oath, before tax commissioners, 470. 
 answers in chancery, strong evidence, 470. 
 sworn entry in custom-house, not conclu- 
 sive, 470. 
 omission of debt in schedule by insolvent, 471. 
 in deeds, operate as estoppels, 471. 
 statement of payment ot consideration, 471. 
 
 not conclusive, when, 471, 472. 
 when action not upon the deed, 472. 
 nor as to matters of recital, 472 
 unless contract has reference to recital, 472, 
 
 473. 
 binding upon privies in estate, 473. 
 
 in favor of a strange , 473. 
 distinction between English and American 
 doctrine as to effectof recital of one deed in 
 another, 473. 
 in writings, not under seal, 474. 
 In writing, receipt fornwney^ 474. 
 does not excfuae parol evidence though in- 
 dorsed on deed, 474. 
 what may be shown to impeach receipt, 474- 
 
 477. 
 misrepresentation, fraud, mistake, 474-476. 
 receipt of part, 475. 
 special receipts, 476. 
 embodying contract, 476. 
 rece pts included in deeds, effect of, 477. 
 "value received" in note, 477, recent de- 
 cisions, 477. 
 adjustment on policy, 478. 
 
 where mistake in law or fact, 478. 
 when inventory for probate not evidence of 
 
 assets. 478. 
 mistake in invoice as to credit. 47S. 
 bill delivered by attorney, effect of, 478. 
 
 parish certificates, 478. 
 bill in chancery does not conclude nartv fi.lin£ 
 it. 478. ^ 
 
 may be used as an admission, 479. 
 admissions verbal^ received with caution, 479. 
 when proved, strong evidence, 479. 
 must be made by party to suit, 479, 480. 
 
 or by party in intereet, 479, 4iB0. 
 tldmissible, though made by nominal party as 
 trustee, 480. 
 
760 
 
 IKDEX. 
 
 ADMISSIONS— (XWiH/iwerf. 
 
 so in the case of an assignee or cestui que 
 
 trust, 481. 
 
 by assignor after assignment, inadmissible, 
 
 481, 483, 485. 
 
 effect of assignment, rights of assignee, 483, 
 
 485. 
 by real party in interest, 483, 
 by administrator or executor, effect of, 483, 484; 
 by wife or husband, effect of^ 483, 484, 
 by trustees or officers of corporation, 483, 484, 
 assignment how completed^ 485, 
 by party'suing for the benefit of another, 481, 484. 
 
 guardian-prpcAei?! ami^ 485. ' 
 by person beneficially interested in suit, 486. 
 by cestui que trusty 486. 
 by person to whom money payable under 
 
 bond. 486. 
 by debtor when money deposited to pay 
 
 creditor, 486. 
 by third person for whom deed is detained, 486. 
 by person realljf interested in policy, 486. 
 by owner of ship in action by master, 486. 
 by cognizor in replevin, 486, 
 by rated inhabitants, 487. • 
 by corporators, by bank officers and directors, 
 
 487, 488, 
 when part of res gestce, 487, 488. 
 by party who has indemnified sheriff, 488, 493, 
 by under-sheriff to charge sheriff, when, 488. 
 by person whose liability is in issue, 488, 489, 
 by bankrupt, in action by assignee, 489. 
 
 not admissible if made after bankruptcy, 489, 
 by debtor in favor of assignee of property, 489, 
 
 490. 
 by petitioning creditor as to amount of his 
 
 debt, 490. 
 by party in different capacity, 490. 
 by person afterwards chosen assignee, 490, 491. 
 by one party evidence against another jointly 
 interested, 491. 
 rule in New York different, and in several 
 states, 491. 
 by English rule, interest must be joint, 499. 
 answers by several defendants do not bind 
 each other, 492. 
 unless co-defendants are jointly interested, 
 
 493. 
 answer of retired partner, does not bind the 
 others, 492. 
 in torts, admission by one not evidence against 
 another, 493. 
 cases cited and commented upon, 493-495. 
 exception in cases of conspiracy, 493. 
 proof of common design, prerequisite, 494, 495. 
 h^ partner being party to suit, 495, 496. 
 by joint grantors, 496. 
 by one of several heirs defendants, 496, 502. 
 must have joint interest, 496. 
 
 in case or joint makers of note, 496, 497, 601. 
 declarations of one of legatees under will, 497. 
 
 joint contract or covenantj 497. 
 of one administrator admissible, when, 483, 484, 
 
 497, 500. 
 one partner against others, when, 491, 492, 
 
 498-500. 
 one defendant on their j oint and several note, 
 
 498, 501. 
 one partner, how far evidence against firm, 
 late American cases, 491, 498-500. 
 of persons not parties to suit, 500 
 by one joint maker to take note out of the 
 
 Statute of Limitations, 498-502. 
 rules in this country, 601, 602. 
 statement of one as to facts before partner- 
 ship, 600. 
 by one as to other facts, not partnership affairs, 
 
 500. 
 by parties to negotiable paper, 501. 
 of part payment by one of several makers, 501, 
 
 502. 
 must relate to joint debt, 503. 
 II.— Of admission^by parties under judge's order, 
 
 503. 
 notice to admit under Code of N. Y., 603. 
 foreign documents within rule, 503. 
 notice CO be given reasonable time before trial, 
 
 504. 
 effect of order of admission by consent, 604. 
 admits documents rightly described, 604. 
 as counterpart of lease, 604. 
 
 ADMISSIONS— conWftMfid. 
 
 execution of deed, 504. 
 
 authority of agent to accent bills, 505. 
 
 order does not preclude objection to admissi- 
 bility, 505, 506. 
 
 variance between order and document, immate- 
 rial, when, 506. 
 
 previous inspection of, not necessary, 506. 
 proof of identity of paper, 506. 
 
 aamission may be used on new trial, 506. 
 
 disobedience of order, effect of, 606, 607. 
 
 order made by judge at chambers, 507. 
 
 recent statutes on subject, 504. 
 in New York, 503. 
 in.— Ot admissions by agent of party, 607. 
 to be received with caution, 507. 
 objections to, 507. 
 
 general rule stated, 507. 
 eclarations must be in course of business in 
 the scope of the agent's authority, 507, 513, 516, 
 statement making a sale, 507. 
 statement proved without calling agent, 507, 508. 
 statement m transaction of prLncipars business, 
 
 508. 
 so as to form part of res gestce^ 508. 
 illustrations of rule, by cases, 503-513. 
 statement made in act of paying money, 509. 
 in buying a riote, 509. 
 in receiving property, 509, 510. 
 in selling property at auction, 510. 
 in receiving money, 510, 512, 516. 
 in making survey, as directed, 510, 512. 
 inadmissible, when beyond authority dele- 
 gated, 511-513. 
 or when made as to past transactions, 512, 
 
 513. 
 distinction between acts of general and special 
 
 agent, 513. 
 ■vyarranty of horse in act of selling it, admissi- 
 ble, 513, 514 
 not BO if made afterwards, 514. 
 declarations of shopman, not in course of busi- 
 ness, 514. 
 
 the agency must be proved by other evidence, 
 
 514, 516. 
 letter of agent, where admissible, 514, 515. 
 when adopted by principal, 516. 
 agency to sell lands, 515. 
 how proved, when power lost, 615. 
 authority to make admisBions may be express 
 or implied, 516, 517. 
 express, by attorney, 516, 517. 
 by referee, 517, 519, 520. 
 b;^ arbitrator, 517. 
 miner's jury, 517. 
 implied, when made by wife as agent. 518. 
 her admissions otherwise not binding, 517. 
 unless husband sues as her representative, 
 
 518. 
 when her authority will be inferred, 518. 
 acknowledgment of debt, 519. 
 words of an interpreter, admissible, when, 519. 
 or of a special agent, 519. 
 adoption of his acts, 519, 620. 
 of an agent in criminal cases, admissible, 
 when, 520. 
 instructions to, not admissible, 520. 
 IV.— Of admissions by under-sheriff, bailiff, attor- 
 ney, counsel, &c., 520, 521. 
 by under-sheriff, when they tend to charge him- 
 self, 620, 621. 
 declarations accompanying official act in nature 
 
 of original evidence, 531. 
 his admissions admissible, when, 621. 
 his act, as in making return, act of sheriff, 621. 
 his acts deemed official, when and how far, 521, 
 
 522. 
 declarations by guardian do not bind minor, 
 
 485,623. 
 direct admissions, 522, 633. 
 indirect admissions, 528. 
 extent of admissions, construction of, 523. 
 bind only in the cause, when, 523. 
 limit of attorney's right to make, 522, 523, 534. 
 proof of appearance as attorney, to let in, 524. 
 admission may be used on new trial, 624. 
 In criminal cases, not admissible, 524. 
 nor when made *' without prejudice," 623. 
 
 waiver of informality, 6Jh. 
 admission by clerk, adiiissible when, 524. 
 by counsel in conduct of cause, 524, 625, ■ 
 
INDEX. 
 
 761 
 
 ADMISSIOTSS-amtimed. 
 
 in statement to jury, 52S. ,u, 
 
 on fonner trial, 525. 
 by principal, not evidence against surety, 5S5, 
 
 526. 
 entries by deceased principal, in course of duty, 
 
 &c., 526. 
 surety not affected by judgment against princi- 
 pal, 526. 
 principal's admissions may be part of res geeta, 
 
 526. 
 evidence against privies, 526, 527. 
 or persons identified in interest with party 
 making them, 526. 
 privies in blood, 527. 
 in law, 527. 
 in estate, 527. 
 by occupier of land, 528. 
 when not evidence, 528. 
 other examples, 528. 
 of former bishop, as to right of presentation, 
 
 528. 
 of former owner as to modus, 528. 
 ancient surveys and maps, 528, 529. 
 entries by deceased steward, when, 529. 
 not admissible, if made after privity deter- 
 mined, 529. 
 former owner after conveyance of advowson, 
 
 529, 
 by mortgagor, after interest parted with, 529. 
 rule applicable in cases of personalty, 529, 530. 
 declarations by assignor, 529, 530. 
 when not applicable, 530. 
 by prior holder of negotiable securities, 530, 531 . 
 person claiming title through another, bound by 
 his admissions, when, 530, 631. 
 limitation of this rule, 531. 
 when person making admission need not be 
 called, 531. 
 
 On the record. 
 in the pleadings, by general issue, 745-747. 
 by special pleas, 747-749. 
 upon demurrer or by default, 786, 787. 
 by payment of money into court, 787-793. 
 by pleading over, 793-799. 
 by giving bill of particulars, 799-809. 
 See JOeaarations against Interest^ and Declarations 
 
 or entries in course ofojffke or business. 
 AD QUOD DAMNUM, writ of, when presumed, 659. 
 
 adutLteet, 
 
 in proceedings as to, husband or wife of party, 
 
 inadmissible. See Introd. Cliap and 91, 92. 
 in action for, evidence of character of wife, when 
 admisBible, 760. 
 of character of plaintiff, 760. 
 presumptive proof of, in action for crim. con., 600. 
 adulterous intercourse presumed to continue, 640. 
 ADVERSE POSSESSION, ai 
 
 presumed to continue, 640. ■• 
 
 of water powers, 653-659. 
 by overflowing land, 658. 
 See Presttmptions and Presumptive Evidence. 
 AFFIDAVIT, 
 not admissible to contradict articles of peace ex- 
 hibited by wife against husband, 94. 
 made use of by party, when receivable as admis- 
 sion. 449. 
 AFFIRMATION, 
 of Quakers, Moravians, and Separatists receivable 
 
 in lieu of oath, 21, 22. 
 so of persons, who have been such, 22. 
 or hold tenets of them, 22, 16-22. 
 or has conscientious scruples against taking an 
 oath, 21. 16-22. 
 AFFIRMATIVE. See title Onus Frobandi, 
 
 must be proved by party asserting, 809-812. 
 AGE, 
 presumption of law arising from, 629, 630. 
 of person, how proved, 252. 
 AGENT, 
 proof of agency, 515, 516-520, 346, 347, 845. 
 principal bound by adopting, 520. 
 must follow instructions, 620. 
 that wife is agent of husband, 517-519. 
 entry by, when admissible, 306. 
 bound by account rendered to principal, 469, 
 authority of to accept bills, 505. 
 admissions by, general rule as to, 507. 
 
 See title Hearsay, viii. 
 fact of agency must be proved as a condition pre- 
 cedent to the admissiblUty of admissions by 6, 7. 
 
 AGENT— MreifeMcS. 
 agency for corporations, when presumed, 598. 
 admissions of, in criminal cases, 520, 
 instructions to, not evidence, 520. 
 of attorney, communications to privileged. See 
 
 title Friviteged Comrnunicatitms. 
 where fact of agency doubtful, 514, 515. . 
 
 admissions by, when part of res gestiE, or within 
 scope of authority, 508, 515, 516. 
 received with caution, 507. 
 must be in course of business and by authority, 
 
 507, 515, 516. 
 as in making a sale, 507. 
 statement proved without calling agent, 507. 
 when statement forms part of res gestce, 503. 
 illustration of rule by cases, 508-511. 
 statement in act of paying money, 509. 
 in purchasing a note, 509. 
 in receiving property, 509, 510. 
 ill selling property at auction, 510. 
 in receiving money, 510, 512, 516. 
 in making survey, when, 510, 512. 
 inadmissible when beyond authority, 611-513. 
 or when made as to past transaction, 512, 513. 
 distinction b'etween acts of general and special 
 
 agent, 513. 
 warranty of horse in sale of it, admissible, 513, 
 
 514. 
 declaration by shopman, not in course of business, 
 
 agency to be proved by other evidence, 514, 515. 
 letter of agent, when admissible, 514, 515. 
 when adopted by principal, 5l6. 
 
 agency to sell lands, 515. 
 how proved, where power lost, 515. 
 authority to make admissions, may be express or 
 implied, 516, 517. 
 express by attorney, 516, 517. 
 by referee, 517. 
 by arbitrator, 517. 
 by miner's jury, 517. 
 implied when made by wife as agent, 518. 
 her admissions generally, not binding, 517. 
 unless husband sues as her representative, 518. 
 when authority will be inferred, 518. 
 acknowledgment of debt, 519. 
 words of interpreter, admissible, 519. 
 
 or of a special agent, 519. 
 in criminal cases, instructions not admissible, 
 
 520. 
 duties of broker and factor, 520. 
 See title Admissions, iii. and iv., by under-sherifl', 
 bailifl'. attorney, counsel, &c. 
 AGENT'S ACTS, 
 how proved, 215, 345, 346. 
 
 when his declarations may be proved as, 215, 216. 
 binding on his principal, when, 405, 456. 
 admission by agent, and their effec- , 507-513. 
 adopted by his principal, 515, .516, 519, 520. 
 by defending or assuming benefit of, 515, 516. 
 in special cases, 516, 517. . 
 building contracts, 517. 
 officers acting for a corporation, 598. 
 SeeAgencu, and Agent. 
 AGENCY, 
 may be proved by adoption, 515, 516. 
 by course of business, 595. 
 for corporations, when presumed, 598. 
 See Agent. 
 AGREEMENT. See title Contract and Farol Evi- 
 dence, vol. 11. 
 verbal admission as to, 422-425. 
 statement ol, amendment as to, 874, 881, 882. 
 See titles Substance and Variance. 
 ALIMONY, 
 on application for, no inquiry into subsequent 
 conduct, 769. 
 ALLEGATA BT PROBATA, 
 
 rule in respect to 824, 8''5, 846. 
 ALLOTMENT of commissioners of inclosure, how 
 
 proved, 576. 
 ALMANAC, 
 
 Judicially noticed, 625. 
 ALTERATION, or Bbasuke. See Vol. III. 
 effect of, 606, 607. 
 
 presumption as to when done, 606, 607. 
 raises presumption of payment, when, 675. 
 AMBIGUITY. See title Parol Evidence, Vol. II. 
 AMEND.MENT, 
 in pleadings, after verdict, 872. 
 See title Variance. 
 
762 
 
 ANCIPNT WRITINGS, , ' 
 
 admissible as liearsay evidence, when, 235. 
 position of parties presumed to be as stated in, 243. 
 modern exercise of right, 344. 
 when evide 'Ce of possession, 281-285. 
 whether evidence of boundary, 282. 
 as to proof of, pee Vol. II. 
 ANCIENT LIGHTS, 
 right of, shown by user, 649. 650. 
 not recognized in this country, 649, 650. 
 ANCIENT POSSESSION, 
 hearsay admitted in proof of, 281. 
 ancient documents, deeds, &c., 281, 282. 
 will, possesaion under, 281-288. 
 ancient leases, old maps. &c., 282, 283. 
 conditions of their admissibility, 983. 
 not received if made post litem, 284. 
 nor unless coming from proper custody, 285. 
 ANSWER IN ECrnlTY, 
 when admissible as hearsay in matters of pedi- 
 gree, 258. 
 as admission, whole must be read, 417, 420. 
 when part to be rejected, 420. 
 how far conclusive, 478, 479. 
 
 See title Bill. 
 APOTHECARIES' CQ.MPANY, 
 
 seal of, no proof required, see Introd. Chav. 
 APPEAL, 
 against order of bastardy, married woman com- 
 petent to prove adultery with appellant, 95. 
 against order of removal, widow admissible for 
 appellant to disprove marriage, 96. 
 APPOINTMENT, 
 to public office, presumed from exercise, 592. 
 otherwise as to appointment under private au- 
 thority, 594. 
 
 See Secondary Wvidence. 
 APPROPRIATION, 
 of money by husband, raised on security of his 
 wife 8 lands, presumed when, 611. 
 presumption, how rebutted, 611. 
 rights of, as to lands or privileges, presumed 
 waived, when, 694, 695. 
 APPRO VB R. See title Accomplices. 
 refusing to give evidence, hie own confession 
 admissible against him, 108. 
 arbitration; see title Award. 
 ARBITRATOR, 
 competent to show time and circumstances of 
 
 award, 7, 588. 
 privileged from answering, when, 134. 
 respecting his exceeding jurisdiction, 166. 
 
 grounds of award, 166, 588. 
 effect and nature of his decision, 239. 
 principle on which his decision binds, 517. 
 
 aki.;hitect'S certificate, 
 
 made evidence, when, 517. 
 
 by agreement of parties, 517. 
 ARMORIAL BEARINGS, 
 
 when admissible in matters of pedigree, 266, 267. 
 See title Hearsay, ii, 2. 
 ARREST, 
 
 admission of demand, made at time of, not re- 
 ceivable, 451. 
 ARTICLES OF PEACE, 
 
 wife may exhibit against husband, 94. 
 
 aaidavit on part of defendant to contradict, inad- 
 
 miaaible. 94, 95. 
 ARTICLES OF WAR, 
 
 judicially noticed, 620. 
 ASSAULT, 
 
 when included in felony, see Introd. Chap. 
 ASSAULT AND BATTERY, 
 
 plea of guilty to indictment, evidence in civil suit, 
 effect of. 
 
 matters of defense, or in mitigation, 733, 748, 749. 
 ASSKiNEE, b , , , 
 
 of chose in action, how affected by admissions of 
 assignor, 327-332, 4811-183. 
 
 after assignment and notice, 327, 480-483. 
 
 promise to pay assignee, effect of, .183. 
 
 of bankrupt, admissions by, and effect of, see title 
 Hearsay, viii. 
 
 depoaitiuns enrolled by, not admissions, 419. 
 
 admlaaions by bankrupt before bankruptcy, 489. 
 ASSIGNMENT, v 3, o 
 
 the intent of assignor in making may bo proved 
 directly, 471, 320, 608. 
 
 consideration, &c , vol. II, p. 647. 
 
 right to attach for fraud, vol. II, p. 366. 
 
 of lease, admission of„ See title Admissions. 
 
 ASSIGNOR OF PERSONALTY, 
 declarations of, how far receivable, 484-486. 
 not admissible, as general rule, 481-485. 
 ASSUMPTION OF NAME, 
 
 or character, operates as admission, 437, 459, 460. 
 ATHEIST, 
 incompetent as witness, 18. 19. 
 competent in several states, 18. 
 See Introd. Chap. 
 ATTESTING WITNESS, 
 competent to impeach validity of instrument, 129, 
 must be called notwithatauding admission, 425, 
 
 426. 
 
 exception to this rule, late English statute, 426. 
 
 proof of execution of instrument by one sufficieni 
 
 where there are several, 570, 571. 
 not privileged from testifying on ground of being 
 
 attorney, 156. 
 proof of death of, or search for, 264. 
 declarations of, not admissible to show the attes- 
 ted writing void. 214-216. 
 ATTORNEY OR COUNSEL. See Primleged Cmn- 
 mvhi/iations. 
 privileged communications to, 1.30-160. 
 what are privileged, 130-134. 140-148. 
 privilege is that of client, 134, 147. 
 does not extend to medical or other advisers, 136- 
 
 138. 
 when privilege commences and ends, 139-144. 
 aa to production of documents, 14.i-148. 
 continues aftar business closed, 148. 
 rule in criminal prosecutions, 148-152- 
 when atttorney acts for two parties, 152. 
 privilege as to third parties. 153-156. 
 
 as to collateral matters 156-160. 
 privilege may be waived, 133, 134, 159. 
 
 quere, as to the effect of recent statutes, 159 
 admission bj[. how far binding on client. See title 
 
 Hearsay, viii, 4. 
 proof of being such, by acts, 524. 
 AVERMENT, 
 by whom to be proved, 809. 810. 
 
 See title Onus Probandi. 
 what averments to be proved. 824, 825. 
 See title Substance. 
 AWARD, 
 
 inadmissible, as reputation, 239. 
 ■ cannot be impeached by parol, 166. 
 ground on which received in evidence, 517. 
 
 B. 
 
 BAIL, 
 
 competency of, as witness for principal. 
 See title Interest, Vol. III. 
 BAILEE, 
 
 admits bailor's title, 469. 
 
 how far concluded bv admission, 469. 
 
 discharge of lien of, 460. 
 
 bailippI 
 
 admisaions by, receivable when, 520, 553. 
 See title Hearsay, viii, 4. 
 BAILOR, 
 
 his title admitted by bailee, 469. 
 BANK, 
 admission by officer or agent of, when evidence 
 
 against, 487. 488, 508-613. 
 by member of corporation, 39, 4S7, 488. 
 BANKBOOKS, 
 wheth» r evidence against customer. 447, 448. 
 not in aeneral, evidence against him, 419. 
 no evidence against a stranger, 447. 
 are evidence against bauR, 447, 448. 
 BANKER, 
 not privileged from answering as to customer's 
 balance, 137. 
 BANKRUPT, 
 formerly incompetent as witness to support or 
 
 defeat flat, 74. 
 rendered competent by Lord Denman's Act, 74, 
 
 7S, 76. 
 See also Introd. Chap. 
 wife of. may be e- ainined as to his estate, 96. 
 declarations of, when evidence, 489. 490 
 when date of account must be proved, 450. 
 demeanor received as adniiaaion. when. 443, 444. 
 statement by, when evidence for assignees, when 
 
 against assignees, .189, 490. 
 not admissible If made alter bankruptcy, 483, 437, 
 
 4S9. 
 abandonment of lease, when not binding upon* 
 
 4641 
 
INDEX. 
 
 763 
 
 BANKmrPT— continued. 
 bound how far by acquiescence under flat, 464. 
 creditor of, when estopped by his own act from 
 
 disputing fact of banKruptcy, 464. 
 burden of proof, where defendant pleads discharge 
 as. 814. HIB. 
 BANKRUPTCY, 
 examinations in, 412, 4S3. 
 depositions in, 449. 
 
 admissions in how far conclusive, 443, 464. 
 when -date must be proved, 460, 489, 490. 
 knowledge of proceedings m, effect of, 530. 
 BASTAUDT, 
 married woman competent to prove adultery, 95. 
 order of, proceedln'.' as to, 40. 
 indictment forcrim. con. with married woman, 95. 
 
 witness to prove, 95. 
 ansvfer in equity, asserting, effect of, 254. 
 BATTERY, 
 wife competent to prove against husband, 94. 
 See titles AesauU. Trespass. 
 BAWDY HOUSE, 
 
 proof of keeping, 181. i» 
 
 BEST EVIDENCE, 
 
 for rule requiring, see Seamdary Evidence. 
 BIBLE, 
 belief in, not necessary for competency of witness, 
 
 lB-20. 
 entries in, admissible to prove pedigree, 255. 
 BIGAMY, 
 in prosecution for, first husband or wife not com- 
 petent as a witness, 96. 
 necessary allegations and proof to convict of, 96. 
 admission not proof of marriage, in prosecution 
 
 for, 452. 
 second husband or wife competent as witness 
 
 after proof of first marriage, 96. 
 proof of marriage, when dispensed with by ad- 
 mission, 96, 452, 463. 
 proof on trials for, 823. 
 BILL, 
 
 delivery of. proof to whom credit given, 451. 
 BILL IN EQlflTY. 
 as evidence in matters of pedigree, 258, 259. 
 when to be put in with answer, 417, 420, 
 BILL OP EXCHANGE, 
 party to may impeach it as illegal, when, 119-128. 
 not if he has transferred it as valid. 119. 
 may show subsequent acts rendering it void, 
 
 120, 125. 
 may show it void for want of stamp, 128. 
 alteration in, efi'ect of, 606, 607. 
 promise to pay admits notice of dishonor of, 
 
 461. 
 admission by party to, when receivable, 530, 531. 
 by prior holder, 481-483, 5.30. 
 presumptions as to, 119-128. 
 proof of practice, in accepting, 595. 
 or indorsing, 595. 
 act of destroying the paper, 602. 
 fictitious payee, 750, 751. 
 admitted by default, 785. 
 
 execution admitted by paying money into court, 
 
 789, 791. 
 statement of, when amended, 883. 
 admission as to contents of note, &c., 422. 
 notice of dishonor of, amendment as to, 885. 
 declarations by holder, when admissible, 327-329, 
 evidence of value given for, 820. 
 BILL OF PARTICULARS, 
 effect of as an admission, 799. 
 credits in, received as, 800. 
 English rule of court, rOO. 
 presumed to contain everything, 800, 801. 
 may be enlarged in case of mistake, 801, 802, 804. 
 proof confined to, 800, 801, 802. 
 when tliere are special counts, 803. 
 amended on judge's order after issue joined, 802. 
 may be called for, in what cases, 804, 
 made out in what manner, 805, 806. 
 errors in bill, 804-809. 
 particulars annexed to record, 809. 
 BILL OF SALE, 
 
 need not be produced to prove title, when, 587-589. 
 BIRTH, 
 hearsay, as to time of in matters of pedigree, 
 
 250. 
 not gijjierally as to place of, 262, 253. 
 declarations or entry of accoucher or midwife, 
 
 when admissible to prove, 273. 
 only where deceased, ^3. 
 
 'EiRTR— continued. 
 
 of death, hearsay as to, 263, 264. 
 entries in family Bible, on a plea of infancy, when 
 admissible, 252. 
 
 See Hearsay as to pedigree, 248-280. 
 BOND OR DEED, 
 
 delivery presumed, 643. 
 BOOK OP ACCOUNT, 
 evidence in favor of party keeping it, when, when 
 suppletory oath of party allowed or required, 
 
 370-386. 
 Connecticut, 370, 371. 
 Georgia, 374. 
 Illinois, 371. 
 Indiana, 370. 
 Maine, 371. 
 Pennsylvania, 371. 
 
 Massachusetts, 370, 372. , 
 
 New Hampshire, 378. 
 New Jersey, .374. 
 New York, 374, 376, 386. 
 Rhode Island, 872. 
 Sonth Carolina, 372. 
 Delaware, 372. 
 Maryland, 373 
 North Carolina, 373. 
 Tennessee, 373. 
 Ohio, 373. 
 Vermont, 373.^ 
 and as to otSfer states, 370. See Introd. Chap. 
 rules respecting suppletory oath, 375. 
 allowed whether book offered to sustain action on 
 
 set-off, 376. 
 that witness is interested, no ground of objection, 
 
 375. 
 wife not admissible, 376. 
 oath must be taken in open court, 375. 
 form of oath, 376. 
 examination and cross-examination. 376, 376, 385. 
 oath of party, confined to what matters, 375, 376, 
 
 385. 
 party's general and particular credit may be as- 
 sailed, 376. 
 entries to be verified by person who made them, 
 
 376, 377. 
 party cannot verify entry of clerk, 376. 
 secondary evidence, when party is dead or absent, 
 
 376, 377. 
 or book lost or destroyed, 377. 
 statute requirements as to oath, 372-376. 
 where suppletory oath of party not allowed, under 
 what limitations admitted, 374. 
 in Georgia, 374. 
 in New Jersey, 374, 385. 
 New York, ,374, 376, 386. 
 requisites of book, credibility, &c., 377-386. 
 must be party's general account-book, 381, 384- 
 
 386. 
 must be book of original entries, 381-386. 
 must be in party's handwriting, or enterer to be 
 called, 381. 
 
 rule when party cannot write, 381. 
 entries to be cotemporaneous with transaction, 
 how far to be made, in what form, 381-3t3. 
 to be considered with reference to education of 
 
 party, 381, 383. 
 erasures, &c., effect of, 383. 
 when evidence as to price or value, 384. 
 of what matters, evidence, 384. 
 not evidence of matters not ordinarily forming 
 
 book account, 386, 386. 
 nor where there is other evidence of facts, 385, 
 
 386. 
 party may waive book, and resort to other proof, 
 
 384. 
 but must produce book, if he relies on it, 384. 
 mode of keeping not material, 382, 385. 
 party using books makes them evidence against 
 
 himself, 386, 408^10. 
 collateral facts, not provable as, 343. 
 admissible against party using it, 408-410. 
 BOOKS, 
 evidence against party having access to, when, 
 
 446, 447. 
 of a public company, 447,. 448. 
 of bank, how far, and when evidence against cus- 
 tomer, 447, 448. 
 not in general evidence, 449. 
 of partners, evidence against firm, 449. 
 entries by a deceased person against interest, 886, 
 
764 
 
 IKDEX. 
 
 BOOKS — continued. 
 of corporate company, not evidence against mem- 
 ber, 449. 
 register, to prove birth, marriage, baptism, &c., 
 ,252, 853. 
 entries in, when evidence of pedigree, 255, 366, 
 
 860. 
 evidence against party using them, 408-410. 
 BOUNDARY, 
 parochial and manorial proved by reputation, 
 
 234r-286. 
 whether ancient documents eviderite of, 235. 
 private, reputation inadmissible to prove, 230, 
 exception, when, 230, 231. 
 fact of planting a tree as, inadmissible, 234. 
 presumption as to, 230. 
 American cases on suhject of, 219-227. 
 . of land bounded by ruad or stream, 647, 648. 
 BREACH OF COVENANT, 
 
 which party to prove, 815, 816. 
 BREACH OF LAW, 
 not presumed, 606. 
 BREACH OF PROMISE OF MAEKIAGE, 
 
 evidence in suit for, 760. 
 BRIBERY, 
 at election, proof of, 389. 
 hearsay evidence, how far admissible, 389. 
 BURGLARY, , 
 
 evidence of previous larceny on some premises 
 
 inadmissible, 766, 767. * 
 
 on charge of, prisbher may be convicted of larceny, 
 
 831-834. 
 BURDEN OF PROOF, 
 
 See Onus FrobaTidi. 
 BUSINESS, 
 usual course of, meaning of term, 360. 
 entries made in, admissible, 347-360, 363. 
 
 CAEBIEB, 
 
 loss by, negligence of, 811. 
 
 of passengers, proof of negligence of, 811. 
 
 effect of proving non-delivery by, 811, 812, 
 CASE, 
 
 made, not evidence as an admission, 441. 
 BO as to a hill of exceptions, 441. 
 CERTIFICATE, 
 
 apothecaries', now proved. See Introd. Chap. 
 
 parish, how far conclusive, 478. 
 
 unofiBcial, mere hearsay, 348. 
 
 of payment, how far, and when evidence, 301, 302, 
 
 336, 337. 
 
 evidence to prove protest of bill or note, when, 
 
 349, 686. 
 
 evidence of oificial character, when, 217, 218. 
 
 of officer, as to search for paper, 388. 
 as to death, which it was his duty to enter, 264. 
 
 of referee or architect, under contract, 517. 
 CHANCERY, 
 
 proceedings of, not judicially noticed, 623. 
 CHARACTER, 
 
 food, regarded with favor, 602. 
 ad, presumed to continue, 608. 
 general, when admissible in evidence, 757-760. 
 particular, admission of, by conduct, 465, 466. 
 
 by as8umi)tion, 465. 
 
 by recognition, 434, 466. 
 evidence as to. when admissible, 760-762. 
 
 See title Presumption., dc , iil. 
 proof of. not in general admissible, 767. 
 may come in question, 757-759. 
 may be the point in issue, 768-760. 
 
 actions of libel and slander, 768-761. 
 
 reports as to, whether admissible, 761, 702. 
 in actions of adultery and seduction, 758, 760, 
 
 breach of promise of marriage, 760, 
 in criminal cases, 761. 
 of complainant, in charge for rape, 761, 762, 
 
 particular facts not admissible, 762. 
 with an exception, 762. 
 proof of good character admissible for prisoner, 
 
 768, 
 
 which may then bo rebutted, 763, 765. 
 weight of in cases of doubt, 763 
 must have reference to charge, 763, 764. 
 what is evidence of general character, 764. 
 
 cross-examining as to, 765. 
 general disposition, 765. 
 bad character not admissible against Drisonor, 
 
 unless, &c , 765, 766. 
 proof of other criminal acts, 767-778. 
 
 CHARACTER— (»»«»«<«<?. 
 cross-examination as to, 760, 762, 765. 
 what constitutes general characteir, 764 
 infamy of, incapacitates witness, 22-24. 
 of party to civil suit not admissiblej 757-759, 
 
 certain exceptions, 768, 760-762. 
 evidence of good character admissible in crimtniil 
 
 cases, 762-764 
 admissible in criminal cases, when, 617. 
 of no avail where proof direct, and convincing. 
 
 763. 
 effect of, in doubtful cases, 617, 763. 
 as where stolen goods are found in prisoner's pos- 
 session, 638. 
 whether admissible in prosecutions for penalties, 
 
 763-763. 
 not to be called in question by the prosecutor, ex- 
 cept in reply, 762. 
 effect of absence of proof of good character, 1 
 Denio, 283. 
 rule as to conversations post litem, 763. , 
 conduct of prisoner on other occasions, 764, 766, 
 
 767. 
 in rape cases, 761, 762. 
 of theatre, as licensed, 606. 
 
 law looks favorably upon good character, when, 
 
 602. 
 in civil Cases, of fraud, &c., 759. 
 CHART, 
 
 of pedigree, when admissible, 260-262. 
 CHATTEL MORTGAGE, 
 sale under,_ effect of, 693. 
 vests title in purchaser, 693. 
 mortgagee may purchase, 693. 
 right of mortgagee as against judgment creditor, 
 
 693. 
 sale under a pledge, 693. 
 CHILD, 
 when competent to testify, 10, 11, 14. 
 no deiinite age necessary, 10-13 
 when to be instructed as to nature of an oath, 12, 
 
 13. 
 postponement of trial for that purpose, 13, 13. 
 can only be examined on oath, 13. 
 dying declarations of, 11, 388. 
 
 inadmissible, when, 288. 
 weight of evidence of, 18. 
 CI1I^^BSE, how sworn as a witness, 17. 
 CIRCUMSTANTIAL EVIDENCE, 
 weight of, 612-618. 
 harmony of all the facts with the hypothesis of 
 
 guUt, 614, 616. 
 failure to explain, 615. 
 should exclude any other hypothesis, 616. 
 when proof weakened by number of essential cir- 
 cumstances, 617. 
 direct proof of higher degree than, 704. 
 fallibihty of, discussion of exceptional cases, 704- 
 
 711. 
 eleven cases of mistake, stated and explained. 
 
 705-711, 
 a curious case m the reign of Queen Elizabeth, 
 
 706-709, 
 necessity of resorting to, 709, 710. 
 in cases of murder, the body must be found, 711. 
 considerations affecting weight of evidence, 711, 
 
 credibility of witnesses, 712-716. 
 various considerations affecting, 716-781. 
 See Presumptiona and Presumptive Evidence. 
 CLAI.M. ' 
 
 admission of must be taken with counter-claim, 
 
 403, 406, 419. 
 CLERGYMAN, ' ' 
 
 declarations of, as to marriage, 250, 273. 
 inadmissible in matters of pedigree, 278, 274. 
 
 f roved such, by acts in that capacity, 593, 
 ERK, 
 of attorney or counsel, privileged from disclosing 
 
 communications, 135. 
 other clerks not so privileged, ISO, 183. 
 admission by attorney's clerk, 624. 
 CLIENT, 
 his privilege in respect to confidential communi- 
 cations to legal advisor, 134. 
 
 See Pnvikged Communications. 
 COACH, 
 inscription on, evidence of OAvnersMn 460 
 
 SSrSia^/T?''- '^^""-^ '""^^^^' 
 
 may be called as witness, 41, 44, 45 
 See Introd. Chap. 
 
765 
 
 COFFIN-PLATB, 
 copy of inscription on, admissible In matters of 
 pedigree. 263. 
 
 value of, judicially noticed, 626. 
 uttering or possessing, knowledge, opinion as to, 
 admissible, 768-112. 
 COLLISION, 
 
 at sea or land, opinion as to, when admissible, 184. 
 COLONY, 
 law of, bow proved, 623. 
 so as to tbe laws of other states, 624. 
 COLOR, 
 persons of, presumed slaves, where, 603, 665, 
 presumption otherwise, as to an Indian, 822. 
 as to mulatto, 608. 
 COMMBBCIAL REGULATIONS, 
 
 of foreign state. See title Foreign Law. 
 COMMISSIONER, 
 public, appointment presumed from acting. 592, 
 of inclo-ure, allotments by, how proved, 516. 
 COMMON, 
 
 right of, amendment as to statement of, 8G0. 
 COMMON CARRIERS, 
 presumption again«t, 640. 
 proof, negligence of, 811, 812. 
 COMMONS HOUSE Oi\ See title Journals, 
 
 Vol. n. 
 COMMUNICATIONS. See title Pnvileged Com- 
 munications. 
 fact of mailing may be given in evidence, 184. 
 COMPAKISONt ' 
 
 of measures in court, 569. 
 of handwriting, see Sandwriting.Yol. II. 
 COMPENSATION. See title Witness,Yo\ U. 
 COMPETENCY, 
 of evidence, a question for the court, 3-7. 
 of witnesses, to be presumed, 4, 5. 
 a condition precedent, 5. 
 difference between and credibility, 4. 
 may be submitted to the jury, when, 4, 5. 
 incompetency, from crime, 22, 23, 24. 
 of parties to suit, as witnesses, 26 
 former rule, 29-39. 
 
 See Preliminary Chap. Vol. I, in. 
 restoring competency of parties, 33 
 of witnesses excluded by interest. 24r-29. 
 of members of corporation as witnesses, 39-44. 
 of a defendant under default, 44 
 in actions on contract, 45-48. 
 in actions for tort, 48-60. 
 in criminal cases, 46, 41, 49. 
 time of objecting to, 97-104. 
 of accomplices as witnesses, 105-109. 
 reason for admitting them as witnesses, 105-107. 
 admitted under an implied promise of pardon, 
 
 101. 
 this implied promise extends only to the crime 
 in posecution, 108. 
 application to court to admit accomplices as wit- 
 nesses, 108, 109. 
 should not be indicted in such cases with 
 others, 108. 
 
 if indicted, a verdict of acquittal to be first 
 taken, 108. 
 condition of being admitted as a witness, breach 
 
 of, 108, 109. 
 his testimony, so given, not admissible against 
 
 himself, 109. 
 if jointly indicted, cannot be a witness till ac- 
 quitted or convicted, 109, 110. 
 confinnation of accomplices, 110-117. 
 not legally necessary, 110, 113, 116. 
 COMPLAINT, 
 fact of making, may be shown, 184, 182, 183. 
 of pain and soreness, 182-184. 
 COMPOSITION DEED, 
 when admissible as reputation, 188, 23S. 
 so as to an assighmenf, declarations in respect to, 
 admissible, when, 188, 202, 203. 
 COMPROMISE, 
 proposition for, not evidence as an admission, 
 » 426, 427. 
 
 admission of a fact evidence, tnongh made pend- 
 ing treaty, 427-430. 
 rule as to prof6.«8ional confidence does not apply 
 to proposals of, 169. 
 CONDITIONAL PARDON... See title Pardon. 
 CONDITION PRECEDENT, 
 to admissibility of evidence, 5. 
 judge to decide, if complied with, 3-7, 
 
 Vol. I. B 
 
 CONDUCT, 
 
 when equivalent to declarations in matters of 
 pedigree, 267, 268 
 
 And see title Bearsay, ii. 3. 
 to admission, when, 436, 487. « 
 
 incouclusivf, generally, 442-446. 
 CONFESSIONS, 
 received in action of tort, 407, 408. 
 under rules applicable to admisiBions, 407, 408 
 all parts of, not of equal weight, 418. 
 in form of testimony, 433, 
 by demeanot' and conduct, 438. 
 by acts and declarations, 441. 
 as to legal effect of a contract, 441. 
 CONFESSIONS BY PRISONERS, 
 See title Hearsay, ix. 
 exception to the general rule excluding hearsay, 
 
 532-567. 
 not admissible for accused, when, 388, 
 principle on which received, 532. 
 conviction le^al on naked confession, 532. 541. 
 but confession should be corroborated, 532. 
 and cm'pus delicti must be proved, 532. 
 by infants, admissible, 532. 
 
 should be confirmed, 632, 533. 
 to what extent; illustration, 533. 
 when made long after arrest, 533. 
 
 corroborated by circumstances, 533. 
 caution exercised in admitting, 532, 524. 
 made before magistrate, 535. 
 less likely to mislead, 535. 
 to be proved by writing, if so taken, 535. 
 may be proved orally, if not, 535, 536 
 statute of New York on the eulaject, 536. 
 mode of examination, proof, &c., 536. 537. 
 different kinds of confession. SSfi; 537. 
 under threats or promise of favor, 537. 
 in cases of murder, how supported, 537. 
 whole CO fession to be produced, 537-539. 
 effect of favorable part, 538, 540. 
 mode of proving conversation, 538. 
 jury need not credit every part, 538-540. 
 statement inculpating another, 540, 541. 
 sufficient of itself to warrant conviction, 532, 541. 
 of law and fact, not sufiicient, 541. 
 should be supported by proof of crime, 542. 
 of marriage, on trial for Digamy, 542. 
 confession must be free and voluntary, 642, 543. 
 admissibility of, decided by court, 543. 
 inducements that will exclude, 544. 
 held out by prosecution, officer or others, 544. 
 cases illustrating rule, 544r-548. 
 made under advice, 545, 546, 554. 
 under promise from prcisecuting attorney, 547. 
 religious and moral inducements, 647. 
 
 slight inducements, 647. 
 held out by persons without authority, 648-550. 
 
 reward offered by government, 551. 
 state's evidence, refusal to testify, 551. 
 suspicion of inducement, must be removed, 551, 
 
 552. 
 caution required after inducement. 652, 5.54. 
 late cases illustrating rule, 552, 553. 
 circumstances rendering confession of no weight, 
 
 653. 
 facts ascertained or properly found in consequence 
 of, 554, 637. 
 
 may be proved, though confession iuadraipsible, 
 
 5.54, 557. 
 discovery of property in making confession, 550. 
 discovery after contession implicating others, 556, 
 
 557. 
 nature of inducement, 544, 557. 
 threats or promises, 557, 558. 
 confession obtained by deception, 559. 
 illaBtrati(tn of rule, 567-560. 
 made before magistrate, 560. 
 statement by person under charge or oath, 560, 561. 
 
 by person on oath, not under charge, 502, 563. 
 not evidence against others, 564. 
 in case of treason, 566. 
 CONFIDENTIAL COMMUNICATION. See Pn- 
 
 leged Communication. 
 CONFIEMATION, 
 of evidence of accomplice, 110-117. 
 See title Accomplice. 
 CONSANGUTNITy, 
 or affinity of declarant, a condition precedent to 
 admissibility of declaration of deceased persons, 
 
 6. 
 oil questions of pedigree, 370, 271. 
 
766 
 
 INDEX , 
 
 CONSEfJT, 
 negative of, when need not be proved, 821, 823, 
 when to be proved, 812-816. 821. 
 See title Onus Probandl. 
 CONSIDERATION, 
 payment of, admitted by d6ed, 471, 473. 
 given for bill of exchange, 820. 
 preBumed, 644. 
 
 of negotiable paper, see 119-129, 644. 
 declarations in respect to, 328-3.32. 
 See Parol EiMenoe, Vol, II. 
 CONSPIRACY, 
 npon indictment for, wife inadmissible, 90. 
 letters and declarations of conspirators, when 
 admissible against co-conspirators, 205-209. 
 not admissible, when not part of res gest(B^ 208. 
 writings in possession of, when admissible, 209. 
 to cheat, other acts of cheating evidence on indict- 
 ment for. 772. 
 to riot, evidence of previous meeting, admissible, 
 
 773, 774. 
 general evidence as to 774-777. 
 acta and declarations of prisoner, when admissible 
 
 in his favor. 774. 
 provable by circumstances, 608. 
 
 order of proof, 738. 
 acts, declarations, letters, papers, &c., by co-con 
 epirators, when evidence against others, 494, 495. 
 admissible though not a party on the record, 
 when, 494, 495. 
 CONS'i'ABLE, 
 appointment as, when presumed, 592. 
 proo of his acting as such, evidence of his being 
 such, 592-594. 
 CONDITION OP THINGS, 
 presumed to continue, 640. 
 CONTENTS, 
 
 of papers, how proved, 345, 351. 
 CONTINUANCE, presumed of ficts proved, 640. 
 
 of title, residence, partneirship, life, 640. 
 CONTRA SPOLIATOBMM, 
 
 presumptions, 602, 639. 
 CO TEAOT,. 
 in actions on, when proof of other contracts, 748. 
 
 admissible, 827, 828. 
 how far admitted by payment of money on into 
 court, 787, 788. 
 no effect given to illegal contract, 792. 
 statement of, effect of variance in proof of, 837, 
 
 845-851. 
 
 when amendment as to, may be made, 874, 875, 
 
 cannot be varied by evidence of usage. See title, 
 
 Vnriance. 
 
 variance in proof of, in actions ex contractu^ 
 
 815-849. 
 In actions of tort, 849. 
 alleged as inducement, 837. 849, 850. 
 
 feneral rule as to written contracts, 851, 
 ow stated in pleadings, 851. ■ 
 written, to be produced, 577, 578. 
 action qn joint contract, proof, 851, 852. 
 made by letter or telegraph, vol. Ill, p 374. 
 See title Parol Evidence, Vol. 11. 
 CONUSOR IN REPLEVIN, 
 
 whether admissions by, receivable, 486. 
 CONVERSION, 
 owner of property after, when may bring action 
 for money. 825. 
 CONVEYANCE, 
 acceptance of presumed, 609. 
 by assignment for benefit of creditors, 609. 
 See Qrant. 
 CONVICT, 
 incompetent as a witness, when, 22-24. 
 conviction how proved, 23. 
 pardon of, restores to competeucj', 34. 
 CONVICTION, Of crime, how proved, 23. 
 effect of indictment, 108, 109, 110. 
 where conviction does not incapacitate, 8, 9. 
 foreign conviction, or.jn another stated 28. 
 See Omvoictmi, Vol. II. 
 COPT, 
 of written instrument, obtained from attorney, 
 
 whether admissible in evidence, 146. 
 when admiaalble generally, 570, 576. 
 printed, of manuscript, luadmiBSible, when, 580. 
 by machine, 581. 
 of entry, to refresh memory, 585. 
 CORONER, 
 examination on oath before, when admiBsible 
 against prisoner, 661, 562. 
 
 CORPORATION, 
 members of, competenfwitnesseB for, when, 89-44. 
 old rule stated with qualifications, 89, 40-44. 
 remote interest does not disqualify, 40, 43. 
 late statutes on subject, 40, 41. 
 public as distinguished from private, 40. 43. 
 books of, not generally admissible for, 449. 
 seal of notjumcially noticed. Vol. H, 346, '467, 458. 
 members of a public corporation not disqualified 
 as witnesses on the ground of interest, 35, 40, 
 
 42-44. 
 See title Interest, as a disqualification of a wit^ 
 ness. Vol. III. 
 members of private corporations are in general 
 incompetent as witnesses, at common law, 43. 
 admissions by members, when admissible against 
 corporations, 487, 488. 
 by overseer of poor, against town, 508. 
 reputation admissible to prove one acting as ofScer 
 
 rightfally in office of,, 318, 693, 594; 598. 
 cliarter and regular organization presnmed, 698, 
 
 660. 
 corporate character admitted, 598. 
 acts of its officers, presumed done with authority, 
 
 698. 
 See Corporation, Vol. II. 
 CORPUS DELICTI, 
 
 must be proved, 532, 616, 627. 
 CORRESPONDENCE, 
 when whole, need not be produced to show admis- 
 sion, 414, 416, 417. 
 CORROBORATION. See title Accomplice. 
 as to entries made in course of business, 347-388. 
 how far to be supported, 362. 
 COUNSEL, 
 professional communications to, when privileged 
 from disclosure, 130 et sea. 
 
 See title Privileged Comrminication. 
 same rule applicable to clerk of, 185. 
 admissions by, when evidence against client, 624, 
 
 626. 
 COUNT, 
 
 addition of, by way of amendment, 885. 
 COUNTERFEIT MONEY, 
 prosecution for having or uttering, 601, 602, 769. 
 
 guiliy knowledge, how provtd, 601, 602. 
 production of, when, 668 769, 770. 
 Identifying, 673, 674. 
 COUNTY, 
 
 judicially noticed, 62.5. 
 COURSE OF EVENTS, 
 presumptions from the usual, 602, 610. 
 as to priority of events, 645. 
 COURT, 
 proceedinge of, when judicially recognized, 622. 
 seal of, 622. 
 
 presumption as to proceedings in inferior, 622. 
 COURT ROLLS, 
 admissible to prove manorial right, 235. 
 not as admissions, when, 343. 
 COVENANT, 
 
 negative statements, 816. 
 COVENANTER, SCOTCH, 
 
 how sworn as witness, 17, 18. 
 CREDIBILITY, 
 
 by whom passed upon, 4-6. 
 CREDIT, 
 proof to whom given, by delivery of bill, 461. 
 and acquicBcence of party, 461. 
 CRI.ME, 
 conviction of, no longer incapacitates witness, 27. 
 
 See Introd. Chap. 
 general rule, 22-24. 
 CRIMINAL CONVERSATION, 
 In action for, wifb's statements and letters not 
 
 evidence for defendant, 91, 92, 181, 182. 
 evidence of criminal intercouiae, 699, 600. 
 CROSS-EXAMINATION, 
 as to written Instruments, to contents of letters, 
 
 575,576. 
 to customs In other manors, Ac, 753. 
 to character, 760, 762, 766. 
 CROSS-REMAINDERS, 
 ,,T^?.,??'?^^ ^7 implication iu deeds, 611. 
 CUMULATIVE, 
 custody""^ received, 739. 
 of documents, proper place of, 286, 310. 
 roegal of prisoner, confefeslons during, 660. 
 
 proof of a cuBtom of business, 231. 
 
INDEX. 
 
 767 
 
 CUSTOM— eonHnwd. 
 general, noticed jadloially, 621. 
 of London, 621. 
 
 of manor or corporation, liow proved, 219 et seq. 
 of the country, proof of, 754. 
 particular, 755. 
 
 as to performance of duty, 233. 
 statement of, amended, 881. 
 in other manors, when admissible, 753. 
 right of common by, 237, 238. 
 mode of proving, 219 232. 
 to show customary right, or liability, 238, 239. 
 weight of evidence, 240. 
 
 D. 
 
 DAMAGES, 
 matters admissible in certain actions, 760. 
 amount of, not established by admission, 433, 747. 
 nor by admission in pleadings, 474, 786. 
 nor by defanlt, 786. 
 proof of inaction for injury, 825. 
 consideration of deed shown by parol, Vol. IT, p. 
 
 B47. 
 DATE, 
 deed presumed delivered on day of, 610, 644. 
 so of other instruments, 644. s 
 not so if the deed be unacknowledged and unat- 
 tested, 644. 
 may be shown to have been executed on another 
 day, 644. 
 DEAF AND DUMB, 
 competent as a witness, 10. 
 how sworn, 10. 
 
 declarat'ons of, inadmissible, 10. 
 prosecutrix for rape, evidence of good character 
 admissible, 10. 
 DEALINGS, 
 previous, between parties, when admissible to 
 explain contract. Seo "Vol. 11, 
 DBATil, 
 contemplation of immediate, necessary to let in 
 
 dying declarations, 289-291 
 presumption of, 640, 641, 264, 265. 
 
 from absence, &c., 640, 641. 
 presumed in favor of marriage, or legitimacy, 641. 
 proof of negligence in causin*;, 8ll, 812. 
 in favor of innocence, when, 813. 
 DECLARATIONS, 
 when part of res gestae^ admissible, 185-901. 
 
 See titles Hearsay and Res Oeetce. 
 evidence on questions of bankruptcy, 202. 
 of conspirators, when admissible against co-con- 
 spirators, 205. 
 of parties having a common purpose, 206. 
 
 when not part of res gesttB^ 208. 
 of spectators admissible, to show public feeling, 
 
 of testator, to show state of mind 180, 181. 
 or as evidence of feelings, conduct, &c., 181. 
 of wife, in actions for crim. con., 181. 
 as to health, 182. 
 and injuries, 182. 
 to medical men, 182, 183. 
 
 showing recent complaint in criminal cases, 184, 
 
 186. 
 . See title Hearsay, 
 post litem motam, 245, 259, 276-279. 
 forming part oXreAgesUz. 186. 187-201, 320. 
 as to acts of possession. 193-199, 201. 
 as to fact of residence, 173, 198. 
 as to fact of marriage. 250, 251, 253. 
 of agent, when admissible, 607-520. 
 against interest, 300-346. 
 not admissible in N. T ,^04, 305. 
 unless by party in possession. 330. 
 by former owner or holder, 311, 814-332. 
 hy principal against surety, 535, 526. 
 by deceased attesting witness, 214-216. 
 in, articulo mortis, 285-299. 
 not admissible in a civil suit. 286. 
 as evidence of bankruptcy, 203-205. 
 of conspirators, 205-208. 
 of rioters, 209. 
 
 See t'tle Hearsay. 
 DECLARATIONS AGAINST INTEREST, 
 
 made by persons since deceased, 300-305. 
 
 general rule stated, 300, 301. 
 admissions and entries charging himself, 301-304, 
 
 306-311, 346. 
 
 when statements not received, 301, 802. 
 
 verbal stateiiients witMnEhglish rale, 304. 
 
 DECLARATIONS, 'ETC.,-~cmtinued. 
 declarant must be deceased, 304. 
 and must have had means of knowledge, 305. 
 admissions by former owner of note or cEose in 
 action, not admissib'e in N. T., 304, 305. 
 entries of the receipt of money, 306, 307. 
 not here admitted against sureties, 307, 310. 
 custody of books conmining entries, 310. 
 declarations as to right to property, 311, 312. 
 by party in possession, 312, 313. 
 proof of occupation ; Ivatt v. Pinch, 313, 314. 
 against what parties admitted, 313, 314. 
 Application of rule to real estate, 315. 
 of ancestors, against the heirs. 315. 
 of devisor, against devisee, 315-318. 
 of grantor, &c., against grantee, &c., 318-322. 
 illustration of rule by cases, 318, 319. 
 
 recitals in a deed, 319. 
 relation of predecessor and successor, 319, 330. 
 recent cases of fraud, 320, 331. 
 conflicting cases, 331. 
 exceptions to the rule, 323. 
 Application af^ rule to personal property, 323. 
 to party taking by act and operation of law, 322, 
 
 323. 
 as by marriage, 332. 
 assignment m bankruptcy, 322, 323. 
 
 for benefit of creditors, 333. 
 in suits for or against representatives, &c., 323. 
 where the transfer is by act of the parties, 333. 
 whether admissible in a case of sale, 333-327. 
 declarations by former owner may be received, 
 33.3-337, 331. 
 when admissible to impeach a gift, 326. 
 not received if made after parting with title, 
 
 837. 
 received if made by vendor, &c., in possession, 
 
 337. 
 rule as applied to chases in action, 337-3.31. 
 
 to dishonored negotiable paper, 338, 339. 
 not received in New York, 339-331. 
 recent decisions on subject, 331. 
 declarations after transfer not received, 331. 
 received if made before, 331. 
 not received against purchaser for value, 331. 
 declarations of living persons not received, 333. 
 received in various forms, 3.33. 
 if made of declarant's own knowledge, 8.33, 334. 
 tending to encumber an estate, 334. 
 
 to qualify possession, &c., 334. 
 to show dedication, contents of lost instrument, 
 
 334,336. 
 rule as to admitting entries in account book, 
 
 335, 336. 
 of deceased persons, 335, 337. 
 entries against interest, need not be cotemporane- 
 ous with facts, 338-342. 
 whether evidence of collateral facts, 342, 343. 
 not, unless made in discharge of duty, 84.3. 
 not admissible in lieu of deceased'^testimoriy, 
 
 .344. 
 situation of parties to be shown aliunde, 345, 
 
 346. 
 agency, res gestas, &c., 345, 346, 347. 
 admlBsible. if against interest, 346, 847. 
 DECLARATIONS OR ENTRIES IN COURSE OP 
 OFFICE OR BUSINESS, 
 exception to rule excluding hearsay, 347. 
 admitted after death of party, 347, 348, 359. 
 if made in due conrse of business. 847-365. 
 entries by deceased attorney, clerk, surveyor, 
 commissioner, notary, teller, Ac, 848-356. 
 
 his death must be showi , 849-351. 
 knowledge of facts necessary, 356, 867. 
 entries of independent matter not within mle, 
 
 35V, 358. 
 must be cotemporaneous with act done, 360. 
 
 proof of fact entered in due course, 361. 
 corroboration, how far required, 862. 
 entries admissible, though there be better evi- 
 dence. 363. 
 
 verb'il declarations admitted. 868. 
 entries not evidence for parties in privity, 364, 
 indorsements on bonds, 364, 403. 
 
 on notes. 864, 366. 
 whether time of, must be proved, 364, 368, 405. 
 entries in course qf business m books of account, 
 
 370-386. 
 when received in evidence in the several states, 
 
 , ■ ..T ^ ^ - 870-877. 
 
 mle in New York, 374, 385. 
 
res 
 
 IJS" D E X . 
 
 DECLARATIONS OR ENTRIES IN COURSE OF 
 OFFICE OR BUSINESS— Cfmfiw«e£«. 
 
 the BUppletory oath, considered, 375. 
 received m proof of property sold and delivered, 
 
 377'. 
 
 of services performed, 378, 379. 
 
 not of special agreements, 379, 380. 
 entries Bhoald be made at or near the time, 380. 
 
 in the usual account hook, 381. 
 
 in book of original entries, 381, 382. 
 
 form of keeping book, 3S2-385. 
 
 nature of the evidence, 383, 384. 
 
 evidence of items and price, 384. 
 
 recent decisions on subject, 385. 
 books of entries should come from proper custody, 
 
 386, 387. 
 presumptions in respect to official act, 604. 
 DECREE, 
 when admissible as reputation, 339. 
 interlocutory, inadmissible, 339. 
 of occasional tribunal, inadmissible, 239. 
 
 so of persons having no knowledge, 243, 
 DEDICATION OF LANDS, 
 
 proof of, 227, 334. 
 DEED, 
 instructions to prepare, privileged, 139, 140, 144. 
 possession of by client, not to be disclosed, 144, 
 
 145. 
 
 nor produced, 145. 
 
 nor conients disclosed, 145, 146. 
 
 belonging to stranger to suit, 153. 
 execution, provable by attorney, when, 156. 
 recital in family deed admissible in proof of pedi- 
 gree, 256, 257. 
 admissions in, when conclusive, 471, 472. 
 
 as to payment of consideration, 471. ■ 
 not conclusive, 432. 
 
 in actions founded on deed, 471, 473. 
 
 as to matters of description, 473. 
 or recital, 472. 
 
 unless contract refers to recital, 472, 473. 
 binding upon privies, 473. 
 admissions by person entitled to, 486. 
 execution of, when admitted, 503, 504, 791. 
 presumed duly executed, 610. 
 delivered on day of date, 610. 
 when presumed, 791. 
 • by payment into court, 785, 787, 791. 
 when set out in substance, how proved, 794, 828, 
 
 861, 862. 
 memorial of, when admissible, 580. 
 of deed by one of two joint grantors, 496. 
 pi'esumed from adverse enjayment, 646, 660. 
 not where Statute of Limitations applies, 660, et 
 
 seq. 
 from the state, presumed when, 660, et seq. 
 what enjoyment necessary, 668-670. 
 in favor of title, documentary, 668, 6G9. 
 in the execution oS trusts, 670, 671. 
 
 and agreements to sell, 671, 
 whether presumed where the law provides for re- 
 cording it, 672, 
 date of, pHma facie evidence as to time of execu- 
 tion, 644. 
 as to erasures and interlineations in, 606, 607. 
 execution and delivery of, presumed, 643. 
 proved in certain cases, 643. 
 DEFAMATION, 
 in actiou for, evidence as to plaintiff's character, 
 
 how far admissible, 757-760. 
 DEFAULT, 
 elfect of. as to competency of defendant as wit- 
 ness, 44. 
 in action on joint contract, by one of defendants, 
 
 45-i8. 
 decisions under code of New York, 45, 46. 
 what admitted by, 785, 786, TO7. 
 
 only traversible averments, 786. 
 by executor, admits assets, 785. 
 
 in covenant, 786. 
 
 in debt, on bond, 786. 
 admits what damages, 785, 786. 
 DEFENDANT, 
 competent and compellable to testify in civil suits. 
 
 Introd. Chap. 
 discharge of one defendant, eo that he may "be 
 
 sworn, 35. 
 joint trespassers competent, if not served, 48, 49. 
 joint defendant under default, in Buit oa contract, 
 
 44r48. 
 
 m actions of tort, 48-50. 
 
 DEPENDANT— cow^inwet^. 
 
 effect of a separate verdict; 51-56. 
 effect of a nolle prosequi, 50, 51. 
 in criminal prosecution, incompetent as witness, 
 
 63-65 
 admission of defend'ant jointly Interested with 
 
 others, 496-501'. 
 in torts, admissioti "by one defendant, effect of, 
 
 493. 
 DELAY AND ACQUIESCENCE, 
 
 presumptions from, when long continued; 602. 
 DELIVERY, 
 of contract not signed byall, 643. 
 of deed, presumed from being found in proper cus- 
 tody, 643. 
 of a bond, when presumed, 643. 
 of deeds and agreements, 643. 
 DEMAND, 
 amission of, upon arrest, 451. 
 particulars of. See title BiU of Parti&jlars. 
 DEMEANOR, 
 when it amounts to an admission, 436, 437, 442. 
 See title Hearsay, viii. 
 DEMISE, 
 
 verbal admission as to, 423. 
 DEMURRER, 
 what is admitted by, 785, 786. 
 not to be used as an admission in another cause, 
 
 439, 440, 747. 
 rule in chancery, 440. 
 DENIAL, 
 of trade, hy wife or servant, admissible, 172. 
 so as to directions for, 173. 
 DEPOSITIONS, 
 in ancient suits, admissible as hearsay, 335, 236. 
 enrolled by assignees in bankruptcy, not admissi- 
 ble by them, 449. 
 when receivable, as, 449, 450. 
 in equity not receivable as admissions, 450. 
 hefore magistrate, admissible against person 
 
 using, 449. 
 post litem mMam, rule as to, 245, 358, 276, 284. 
 taken ecc parte, generally inadmissible, 213-216, 
 
 390, 391. 
 proof of, 318. 
 
 signature of officer, when, 318. 
 not taken in any suit, inadmissible, 213-316. 
 one party cannot use his own deposition in ano- 
 ther action taken by his adversary, 440. 
 See same title, Vol. 11. 
 DESCRIPTION, 
 matter of in deed, how far conclusive as an ad- 
 mission, 473. 
 DESTRUCTION OF DOCUMENTS, 
 presumptions ft-om, 603. i 
 
 SQCh as a will, bond, note, draft &c., 602, 639. 
 DEVISE, 
 acceptance of, presumed, 609, 
 in lieu of dower, when, 609. 
 DISCHARGE, 
 under insolvent act, admission of, not evidence, 
 
 426. 
 how proved, 426. 
 as a bankrupt, 814, 815. 
 DISHONOR, 
 notice of, admitted, by promise to pay Mil or note, 
 
 451. 
 DISTINCT MODUS, * 
 
 admissibility of reputation as to, 328. 
 DIVORCE, 
 
 action for, barred by lapse of time, 701. 
 DOCUMENT, 
 may be produced hy one defendant, who is under 
 
 default, against a co-4efeudant, 47. 
 attorney, not to disclole contents of, when, 145, 
 
 146. 
 may with client's consent-, 146. 
 may prove it in his own possession, 145. 
 otherwise as to possession of client, 144, 145. 
 
 or as to state of document, 144. 
 ancient, admissible as reputation, 286. 
 referred to, when receivable as admission, 411. 
 produced by party, when receivable as admission. 
 
 449. 
 iud2-e'8 order to admit, 604. 
 Identity of, proved, 506. 
 unstamped, not to be referred to, 579. 
 date of, presumption ftom, 644. 
 destruction of, presumption from, 602. 
 DRUNKENNESS, 
 confession made during, admissible, 569. 
 
INDEX. 
 
 769 
 
 DtJPLICATB ORIGINALS, 
 
 to be accounted for, to let in secondary evidence 
 of, 586. 
 DUTY, 
 
 presnmed to have been performed, 605, 606. 
 DYING DECLARATIONS. See Title Hearsay, iv. 
 
 admissibility of to be decided by court, 5, 6. 
 
 firinciple on which admitted, 385-291. 
 imitations of admissibility, 285, 286. 
 in civil and in criminal cases, 286, 287. 
 belief in future state implied, 287, 288. 
 state of mind to be first shown, 289-292. 
 interval before death, 293. 
 
 expressions, showing apprehension of death, 290, 
 
 298. 
 representations to deceased, 290, 294. 
 form of declaration received, 296, 297. 
 
 only aa to facts, 296-298. 
 effect of when received, 299, 800. 
 
 K. 
 
 BASEMENT, 
 grant of, presnmed from adverse enjoyment, when, 
 
 648-659. 
 lights, 649, 650. 
 ways, 650-652. 
 fisheries, 652. 
 innning water, 653-659. 
 
 mines, 663. ^ 
 
 landing place, 662. 
 ECCLESIASTICAL LAWS, 
 
 indicially noticed, 622. 
 EJECtMENT, 
 dying declarations inadmissible in, 286. 
 admission by lessor, receivable agamst whom, 483. 
 by one of several, 496. 
 by one of several tenants in common, 496. 
 possession prima fade evidence of title, 646. 
 
 §rant when presumed, 660, et seq. 
 ee title Premmptions and Fremcmptive Emdence. 
 BLBOTION, 
 
 proof of bribery at, 389. 
 ENJOYMENT, 
 
 acts of, when not necessary to prove right, 344. 
 ENTRIES. See title Books. 
 made by a deceased person in usual course of duty 
 or business, 350-363. 
 what is usual course of business, 348-351, 360. 
 of deceased notary and others, admissible, 348-351, 
 in parish books. See title Hearsay. 
 in family books. See same title, ii. 
 against mteroM of deceased party. Same title v. 
 by a deceased agent, 336. 
 
 surveyor, 343. 
 ground of rule, 343, 344. 
 character of agent or party, 346. 
 when sufficient, 346. 
 mle in N. Y. 361. 
 
 made in course of office, 360. See same tile, vi. 
 in books acces^le to both parties, admissible, 
 
 446,447. 
 in manor rolls, 448. 
 in partnership books, 449. 
 of record, parol evidence of inadmissible, 426. 
 In books of a club, 446, 447. 
 in account-book. See title Book of Aaxntut. 
 ERASURE, 
 
 presumption as to when done, 606, 607, 608. 
 ESCAPE, 
 averment of husband auAwife in execution, proof 
 
 of husband in, sufficient, 826, 827. 
 record, not admissible after action brought, 827. 
 ESCROW, 
 
 whether proof of focts stated in it, 442. 
 ESTOPPEL, 
 one who transfers a note or draft as good business 
 naner is estopped from asserting the contrary, 
 
 119, 121. 
 is not estopped if he makes no representation, 
 
 119. 
 review of the cases on the point, 118-127. 
 effect of admissions, as estoppels, 453-464. 
 where acts are done upon faith of statements, 453. 
 against whom receivable, 453j 454. 
 different classes of such admissions, 454. 
 they estop when acted upon, 456. 
 a volunteer payment. 456. 
 admissions, made with view to evidence, 454. 
 or condnct inducing others to act upon them, 
 
 454-461. 
 operate as an estoppel in pais, 464. 
 
 'ESTOWEL— continued. 
 familiar instances of, 455. 
 tenant flcom disputing landlord's title, 466, 
 
 467. 
 and other illustrations of rule, 466, 45T. 
 acts and admissions by agmts, 456. 
 admitting amt. due on mortgage, 457. 
 admission of debt, inducingsuit upon it, 468. 
 of profession, 458. 
 of ownership of vessel, 45). 
 of executorship, by conduct, 459. 
 of agency, 459. 
 of name, 459, 460. 
 
 by assuming or appearing in, 459, 460. 
 of calling or profession, 4i0. 
 by making out inventory, 460. 
 only m favor of party misled, 460, 461. 
 mistakes that do nokmislead.461, 463, 464. 
 
 that do mislead, 461, 462, 46). 
 party estopped by his acts or conduct, 463, 464. 
 or by his silence, when, 46E. 
 by assumption of professiaial character, 466. 
 by giving note or Dill for goods, admits price 
 
 reasonable, 465. 
 by holding out woman as vife, 466, 465. 
 wife estopped by represenad^n, when, 466. 
 estopped from denying assunelrname, when, 466. 
 from denying liability as jartner, when, 466. 
 from denying landlord's ttle, 467, 46S. 
 what not an admission of title, 468. 
 attornment without paying rent, 468. 
 payment of rent to another party explained, 468. 
 may show landlord's title eipired, 468. 
 acceptance of bill admits diawer's signature, 468. 
 not that of indorser, 468. 
 account rendered by agen;, binds him, 469. 
 bailees admit title of bail)r, 4o9. 
 in criminal cases, 469. 
 admissions from conduct aot conclusive, 469. 
 on oath, before commissimer, 470. 
 sworn entries in custom-louse not conclusive, 
 
 470. 
 estoppel by deed, 471. 
 statement of payment of (onsideration, 471. 
 
 not conclusive, when, 471, 472. 
 when action upon deed, 4'S. 
 nor as to matters of recita, 472. 
 unless contract has reiererce to recital, 472, 473. 
 binding upon privies iiPestate, 473. 
 
 in favor of a stranger, 47J. 
 distinction between Englidi and American doc- 
 trine as to effect of recital o; one deed in 
 another, 473. 
 in writings not tmder seal, 474. 
 receipts may be explained or impeached, 474-. 
 
 477 
 not special receipts, 476. 
 receipts included in deed, efect oi^ 477. 
 
 '' value received " in n"te 477. 
 an in&ut not estopped by admission, 622. 
 See Admissions. 
 EVENTS. 
 
 nresumption as to course of, 626, 646. 
 EVIDENCE, 
 law of, in what it consists, 1. 
 of two kinds, parol and'written, 1. 
 limitation as to the admissibility of, 3. 
 judge to decide on the admissibility of, 8. 
 on preliminary questions of fact to determine 
 admissibility, 3. 
 jury to decide on sufficiency of, 5. 
 conditions precedent to admissibility, 5, 6. 
 admissibility to be determined by the judge, 
 though it involve the same question which is to 
 be passed upon by the jury, 6, 7. 
 must be given upon oath, 5. 
 best to be given, 567. 
 
 fabrication of, presumption from, 63!, 640. 
 
 elementary principles of evidence, 711-7o0. 
 
 effect of self contradictions, 712, 713. 
 
 opportunity of knowing, 713, 714, 720. 
 
 credit due, conflicting witnesses, "14, 716, 718, 
 
 credit due to human testimony, 715-724. 
 
 considerations affecting, 724-730. 
 rules of, in criminal, same as in civil cases, 834, 
 ^ 835. 
 
 I. — Confined to points in iss-ue. 
 relevancy of, 732. 
 
 proof of other transactions, 748, 749. 
 of previous provocation, 7&, 749. 
 of other suits, in malicious prosecution, 748. 
 
770 
 
 INDEX. 
 
 EVlUWlCE—amtiiued. .. 
 ofotherllbelB, '48, 749. 
 of practice in other schools, 749. 
 of aestrnction of other instraments, 748, 749. 
 of other acts of negligence, 748, 749. 
 of other fraudulent acts, 749,751, 769, 773. 
 of otner acts of Agency, 615, 516, 751. 
 of other acts ofboasesBion, 751, 752. 
 of other acts of juriBdiction, 751, 752. 
 of similar injurj to other property, 751. 
 of alteration of Jther note*, 752. 
 of customs in otaer manors, 753. . 
 characterbf parw in civil suits, 757-759. 
 
 in criminal cafes, 602, 762-764. 
 acteof prisoner, evidence for him, when, 538, 
 ! ,539. 
 
 U.—AMrmative oj issue to be prOvect by party 
 holding it, 809-8Sp, 
 which party to prove the issnss, 809, et seq. 
 
 See titU Onvs FrobandL 
 right to begin aifl reply, 816-820. 
 how far rests In (liscretion of judge, 819, 820. 
 m. — Substance orUi^ of iisue need lie proved, 824, 
 et seq. \ 
 
 in debt on bond. 25. 
 in action for stonter, 827. 
 in replevin; vSrinice, 827, 828, 
 plea that defemant became purchaser, how 
 supported, 821 
 plea of payment, l^ow supported, 825. 
 
 ,of performance tf condition, 825. 
 other pleas, how sbpported, 825-829. 
 plea of voluntary fflcape. 825. 826, 
 
 of notice of dishknor, how supported, 841. 
 as to proof of mat ers of inducement, 837. 
 with averment mtst be proved, 838. 
 what averment netd not be, 841. 
 what are materill in iddictments, 834, 843, 
 I 844. 
 
 and what immiiteiial, 834, 835, 843. 
 IV.— Best evidence ii be giiien. See title Second- 
 ary Beidemx. 
 "v.— Hearsay not admissible. See title Hearsay. 
 VI. — Parol evidenc^as to contents of written doc- 
 uments, when receivable as admlBsionfe, 422, 
 
 EXAMINATION. See titles Cross-Examination, 
 Deposition.^ t 
 
 in bankruptcy, receivable as admiSBion, 432. 
 
 Bee title Hearsay, viii. 
 of accused, how msde, 534-536. 
 manner ofj 685, S6. 
 
 statement 'by accused not under, provable, 535, 
 I 536. 
 
 of witness ^s to' his competency, as" to religious 
 belief, 20, 97. 
 on the wt dire, 97, 99, et seq. 
 as to matters of opinion or impression, 425. 
 BXEOUTOEOS /iBMlNISTRATOR, 
 entry by deceasfed'when admissible as against in- 
 terest, 364.. ' 
 right to sue, when admitted by pleadings, 745, 
 
 746. 
 estopped from denying representative Character, 
 
 when, 459. 
 no impl ed warranty on sale by. See Interest, 
 
 Vol. III. j 
 admission k, effect of, 483, 484, 496, 497. 
 EXE.MPTIOK, 
 the party claiming the benefit of the statute must 
 
 establishbiB right. 818. 
 the burden of proof is on him, 818. 
 BXPJKJTATION OF DEATH. 
 a conditloil precedent to the admissibility of dying 
 declarations, 5. 
 EXPERTS. ' See Opinion. 
 
 W. 
 FABUICATtON, 
 or Buppreksiou of evidence, presumption from, 
 [ 602, 639, MO. 
 
 PACT, 
 preliminary qneatlons of, necessary to determine 
 admissibility of evidence, for lodge to decide, 5, 
 dying declarations only admissime aS to, 287. 
 presumpt ons of. See title Fresumptions and Pre- 
 sumptiie Evidence. 
 FACTS JUDIOIALLY NOTICED, 
 matters df government, 619. 
 public Btijtutes,- 620, 621. 
 prDceedilgs and practices of courts, 623, 623. 
 
 FACTS JUDICIALLY NOTICED— continued. 
 seals, 619, 624. 
 almanac, 625. 
 
 civil divisions of the county, 625. 
 PACTOE. See Agent. 
 FALSE IJIPEI^NMENT, 
 
 evidence in actions for, 885. 
 FALSE PRETENSES, 
 proof of part of pretenses charged, sufficient, 830. 
 provided enough are proved to establish crime, 
 
 830, 831. 
 FALSE REPRESENTATION, 
 ground of action if damages ensue, 633. 
 m action for, conversations between defendant 
 
 and third persons to show animus, 38. 
 statement of, when amendment allowed, 881. 
 purchases made on, 759. 
 ma sale of land, 188. 
 or contract for lease, 188. 
 FAMILY, , ^. 
 
 correspondence, deeds, &c., in matters of pedi- 
 gree. 256. 
 conduct or treatment in, 267, 268. 
 connection with, to render declarations admissi- 
 ble, 270. 
 FARM MODUS, 
 
 reputation not admissible as to, 228. 
 FELONY. . ,„ 
 
 witnesses for prisoner formerly not sworn in, 15. 
 amendments allowed in indictment, 893. 
 FEME COVERT. See title Husband and Wife. 
 FISHERY, 
 right of, established by adverse user, 652, 660. 
 grant of, when presumed, 652, 660. 
 PLOWING LAND, 
 adversely, 658. 
 
 See Water Rights. 
 FORBEARANCE, 
 when evidence as an admission, 444, 445. 
 See title Admissions. 
 POBCIBLE MARRIAGE, 
 wife competent witness on prosecntion against 
 her husband. 96. 
 FORCIBLE ENTRY, 
 
 See Vol. ni. 
 FOREIGN DOCUMENTS, 
 
 judge's order to admit, 503. 
 FOREIGN LAW, ORLAW OF ANOTHEESTATB, 
 not j ttdicially noticed. 623, 624. 
 opinions as to. when receivable. Vol. U, 427-435. 
 FOREIGN STATE, , 
 
 existence of judicially noticed, 620. 
 FORGERY AND CO.NTERPEITING, 
 on indictment for, party injured competent as 
 witness, 59, 60. 
 former rule, 59. 
 proof of money bein^ counterfeit, 668. 669. 
 of notes or other writings, when opinion as to, 
 
 admissible, 780. 
 gnilty knowledge proof of, 'eh indictment for 
 passing, 600-602, 768, 769. 
 how rebutted, 60), 602. 
 other transactions, when admissible, 600, 768, 769. 
 declarations of prisoner as to res gestiB, 192, 193. 
 not presumed, when, 605, 606, 813. 
 proved by circumstances, 600, 788. 
 presumed frpm certain relations. 691-C94, 
 particepts froMdis declaiations, by, 129. 
 FRAUD, 
 proof of, in conveyances, voluntary, 320, 471, 608. 
 other transactions to show, 750-753, 758, 759. 
 other purchases to show purchase fraudulent, 758, 
 
 769, 773. 
 not presumed 605. 
 of an act stiindine alone, 607, 608. 
 fraud presumed from circnmstances, 607, 608. 
 from voluntary convevance, when, 608. 
 FRAUDULENT CONVEYANCES, ' 
 presumptions fn regard to, BflS. 
 voluntary conveyances presumed such, 608. 
 intent, how proved, 608. 
 FORMAL ACTS, 
 presumed. 643. 
 FORMER TRIAL, 
 evidence given on, not admissible, 440. 
 
 when admissible, 440, 
 evidence of deceased witness, given nn a former 
 trial, on the sartie matter, between the same 
 parties, is admissible, 889. 
 the death of witness lets in the testimony, 389, 
 
 890. 
 
INDEX. 
 
 771 
 
 FORMER TRXkli—amtinuea. 
 llliistratlon of the rnle, 889-391. 
 not in criminal caBos. 390. 
 the parties must be the same, 391, 393. 
 and the point in issue t e same, 393, 393. 
 and the witness dead, 398, 394. 
 absence will not let in his testimony, 393-395. 
 but both absence and incompetency have been 
 held sufficient, 393-396. 
 mode of proving former testimony, 394-400. 
 may b« proved by any person who heard it, 
 
 395,396. 
 the judge's notes not ^erse proof of it, 395, 400. 
 but are proof when proper'y supported, 39B-401. 
 course of decisious, 39b-401. 
 recent rulings on the point, 400, 401. 
 who considered same parties, 391, 398, 401. 
 testimony admitted against jiriiiles, 392, 402. 
 in law, blood or estate, 392, 402. 
 FREIGHT, 
 admission by person entitled to, when evidence, 
 
 480. 
 FRIRND, 
 confidential communication to, not privileged, 
 
 l:S, 13B, 142. 
 declaration of, inadmissible in mattsrs of pedi- 
 gree, 271. 
 FUTUftBT STATE, 
 belief in requisite, to let in dying declarations, 
 
 287, 288, 298. 
 
 G-. 
 
 GAZETTE, 
 
 judicially noticed, 619. 
 GENERAL EIGHTS, 
 reputation as to, 218-227. See Hearsay, i. 
 defined, 217. 
 GENERAL ISSUE OR GENERAL DENIAL, 
 
 what is admitted by, 745, et seg. 
 GIFT, 
 not presumed, 604. 
 acceptance of, presumed, 609. 
 GODMOTHER, 
 declarations of, inadmissible in matters of pedi- 
 gree, 273. 
 GOiSPEL, 
 
 swearing on, 17. 
 GOVERNAIENT, 
 communications to, when inadmissible in evi- 
 dence, 161-163. 
 matters of, when judicially noticed, 618. 
 GOOD CHARACTER, 
 
 law regards with favor, 602. 
 bad character presumed to continue, 603. 
 not admissible in civil cases 757-762. 
 
 unless directly in issue, 757-762. 
 admissible iUi^riminal cases, 761-765. 
 GRAND JVRT. 
 evidence before, privileged from disclosure, 166, 
 
 167. 
 district attorney, and clerk to, privileged from, 
 
 133, 167. 
 members of, when, 133, 166. 
 GRANT, 
 from crown, when presumed, 660. 
 other grants, presumed wheii, 661-671, 673. 
 when grant bseai crown presumed in this coun- 
 try, 660. • 
 or from the state, 660-668. 
 presumed from long adverse possession, 660. 
 like payment, 661. 
 
 on analogy to statute of limitations, 661. 
 not where possession did not commence adversely, 
 
 662. 
 illnstrations of rnle, 663-664. 
 presumed between individuals, 662, 6B4-673. 
 
 of freedom from enjoyment, 665, 666. 
 * of a deed to supply a link in title, 665, 666, 667. 
 
 a due and regular sale presumed, 665, 666. 
 presumption made to supply defective evidence, 
 
 667. 
 foundation of such presumptions, 668, 671. 
 
 adverse possession, 668, 669, 671. 
 deeds in the execution of trusts, presumed, 669-672. 
 reconveyance, .671. 
 recording act, effect of, 671. 
 6UARDIA^I, OR PROCHEIN AMI 
 
 admission by, when evidence against in&nt, 485. 
 QUILT, 
 circumstances in proof of guilty knowledge, 387, 
 
 76?. 
 
 GXJILT— continued. [ 
 
 that money was counterfeit, 387, 888, 752, 753. 
 
 that another has contend thp Cfime, 388. 
 in election Cases, circunistknces, 889. 
 circumstances indicating giilt, 601. 
 failure to repel strong preSimption, 614, 615. 
 
 possession of stolen goojs, 615, 7.35. 
 
 conduct indicating, 615,til6, 770, 771. 
 
 corpiia delieti essential, B3, ,6167618. 
 shown by minute circumstances, 736. 
 
 by proof of another crinie to show mot'v?, 737. 
 
 on trml for forgery, or pasflnt" counterfeit money, 
 
 I 7.52, 768-770. 
 
 weight of character to rlpel, in criminal cases, 
 
 1 761-765. 
 
 evidence of guilty knowlelge, &c., 768, 769. 
 
 burden of proof to establsh Ip a case of piurder, 
 
 T S04. 
 
 blood-Btnins, to prove, 35,N. Y. 49. 
 
 of a child under age of dfecretion, not presnined, 
 
 H. 
 
 HANDWRITING, 
 of client, may be proved ly attorney, 148, 167. 
 of entries, what sufacienj, 346, 347. 
 
 when proof dispensed yith, 346, 347. 
 how far matter of opinioi, 780, 784. 
 how proved, 571. I 
 
 See SandwrHnff, Vol. II. 
 HEALTH, 1 
 
 expressions as to state.oj, 183. 
 complaint of pain, &c., i83. 
 HEARSAY, I 
 
 definition of, 169. I 
 
 what is and what is notJl69rl73. 
 not admissible to createbr destroy a title, 173. 
 
 on question of fteedoii, 173. 
 words or writings, when offered in evidence as 
 transactions are net hearsay, and are admis- 
 sible, 170-172. j 
 they are admissible f s fact*, as proof of infor- 
 mation, given or repeived. 170, 171. 
 part of letter relating to transduction only, to be 
 ' read, 170 
 where part of writing is admissible, not rqected 
 
 because it contains hearsay, 171. 
 writings admissible Jis proof of collateral facts, 
 
 words spoken in directing the publishing of a 
 
 Ubel. 171. f 
 
 letters to a peiSbn, n|ere hearsay when, 172. 
 words and letters as proof of good or bad faith, 
 
 , 172. 
 letters written expressly "without. prejudice," 
 
 172. 
 denial of person by wife or servant,, 172. 
 directions by trader to deny, 172. 
 reputed ownership, general opinion on question 
 
 of, 173-180. 
 what is hearsay, anc Inadmissible — American 
 
 decisions, 173-179. 
 
 as to place of birth md residence, 173. 
 
 as to lineage and decent, admissible, 174. 
 
 that a bpdy was ft>nnd buried at particular 
 time and place, not admissible, 174. 
 
 33 to age of a son, to prove in&ncy, 174. 
 
 to prove agency of a deceased pleraon, inad- 
 missible, 176. I 
 declarations of third persons, 175, 176. 
 admissible when part of r«s gesta, 175, 176. 
 what is such and inadmissible, 177-180. 
 reputation of a dog, idmissible, ISO. 
 
 and of persons, whtn, 180. 
 
 teneral opinion of a picture, when, 180. 
 eclarations of a tesl^tor as to his. will, 181. 
 on a question of fl-aud, 181. 
 demeanor and condtlct as shown by expressions 
 admissible, 181. ^t 
 
 in cases of criminal conversation, 181/182. 
 
 letters to husband and others, 181, 182. 
 expressions as to state of health, 182, 183. 
 to show effect of a blow, 182. 
 nature of disease, 183. 
 of greater weight, when made to physician, 
 
 182, 183. 
 when part of res gestae, and when not, 183. 
 medical evidence as to period of gestation, 184. 
 statements made in regard to crime 184. 
 as to time of making a complaint for rape, 184. 
 declarations forming part Qiree geeta, 18fe-201. 
 
772 
 
 INDEX. 
 
 HEAESAT— amfiTOiei!. 
 
 are such when tley accompany and qualify an 
 act, 185, 186, liT. 
 which is itself aitaissible in evidence, 186. 
 hy a wife in the a;t of elopement, 187. 
 by the drawee of a bill m refusing to accept, 
 
 187. 
 by an fl,gent in asiignine a bill, 188. 
 by a party in act *i bailing chattel for hire, 188, 
 
 189. 
 when declarations leceivable as part of res gesice^ 
 
 189-202. 
 in criminal cases,191, 193. 
 in civil cases, ISSet seg. 
 in regard to possession, acts of 194r-198. 
 . on questions of canpetency, 199. 
 
 of an agent, when 199. 
 when declarations o' one of seve'ral wrongdoers, 
 
 199, 200. 
 as to dissolution of partnership, 200. 
 general hearsay in _p'oof of usages, 200. 
 on matters of scieice and art, 200. 
 later cases illUBtra",ing the res gest(E^ 201, 202. 
 explanatory of lossession, 201. 
 declarations in the act of making a fraudulent 
 
 conveyance admissible, 188. 
 declarations evidencton questions of bankruptcy, 
 
 202. 
 accompanying pnrciase to show trading, 202. 
 as to state of affairi, 202. 
 explanatory of acts done, 203. 
 time of making ths declaration material, 203- 
 
 205. 
 declaration to be coniected with act, 203, 204. 
 need not be cotemporary with act. 203. 
 letter written during absence of bankrupt, 204. 
 conversation after absenting, 204. 
 letters previous to absenting, 204. 
 conversation after fiaudulent transfer, 204, 205. 
 statement showing knowledge of Insolvency, 
 
 205. 
 must be conndlited \rtth state of mind at time, 
 
 205. 
 time n6t being shown, inadmissible, 205, 
 declarations of conspirators, when evidence 
 against co-conspirators, 305. 
 letter from one to Bnother, part of res gestw, 
 
 205, 20B. 
 expressions and 8;atements of one against 
 
 another, 205, 206. 
 consultation in funherance of conspiracy,206, 
 declarations in writing;' us^ by others, for the 
 common object, 206. 307. 
 expressions of a mob, 207. 
 inscriptions on banners, 207. 
 statements of conspirators when not part of the 
 res gestae, 208. 
 such as a letter giving a narrative of transac- 
 tion. 208. 
 admissibility of writings in possession of con- 
 spirator, depends on time of possession, 209. 
 same rule in prosecutions for riot, 209, 210. 
 not applicable vhere there is no common 
 
 design, 205, 210. 
 as in action for Legligence, or trespass, 210, 
 
 211. 
 principle of rule excluding hearsay, 211, 212. 
 history of the rule, S12, 213. 
 extent and application of the rule 213-216. 
 applies to examination on oath, 313. 
 
 to a deposition, when, 213, 214. 
 though the only witLcss is dead, 314. 
 or too young to be sworn, 214. 
 declarations of deceaBed persons as to loss of 
 paper, 214-216. 
 and of rtecoased subscribing witness, inadmis- 
 sible, 214, 215. 
 recent cases, 215, 216. 
 I.— Exception to the nile as to hearsay, in matters 
 
 of public or general interest, 217-247. 
 1. what are matters of public or general interest. 
 
 217-229. 
 that one holds a public ofBce, 217, 218. 
 examples of matters of public and ffoneral inter- 
 est, 3ia-235. . 
 proof of the existence of manor, manorial cus- 
 tom, custom of mining, parochial modus, 
 boundary, limits of town, corporate custom, 
 riffht, right of common, to froowarren, lia- 
 bility to repair bridge, sea walls, jurisdiction 
 of court, 219-227. 
 
 HEABSAT— «)«««««?. 
 hearsay, American cases as to proof of boundaries, 
 
 219-227. 
 rule applied with cantion, 221, 222. 
 declarations pos< litem motam, 221, 238. 
 as to surveys and boundaries, 224-226, 227. 
 declarant's death to be proved, 323, 324. 
 declaration by deceased surveyors, 224, 325. 
 
 limitation of rule, 326. 
 locations and surveys in Pennsylvania, 228. 
 as to dedication of premises, 227, 226. 
 as to right of common, district modus, farm 
 
 modus, 227-229. 
 as to private prescriptive rights, 229. 
 in proof of a custom. 231, 319. 
 not admissible as to private botmdaries, 2.S0, 
 
 231. 
 nor to a private title, 231, 242. 
 nor as to usage relating to private right, 231. 
 or to performance of public duty, 232. , 
 presentation, 332. 
 liability of occupiers to repair road, 332, 233. 
 particular facts generally, 233. 
 by particular payment of sum as modus, 233. 
 
 unless by custom, 233. 
 as to surrender of lands in lien of tithes, 233. 
 site of ancient houses, 233. 
 entries concerning repairs of pews. 233, 234. 
 
 concerning names of surveyors, 234. 
 as to planting a tree to show boundary, 234. 
 perambulations, 234, 235. 
 entries of, 2a5. 
 
 2. forms in which hearsay is admissible in mat- 
 
 ters of public interest, 235-239. 
 ancient documents, leases, composition deeds, 
 
 manorial documents, 235. 
 customary presentment by homage, 235, 236. 
 
 maps, when evidence, 286, 287. 
 verdicts, effect of, where same rights in litiga- 
 tion, 237. 
 judgment by default not followed by execution, 
 
 238. 
 finding of jury under commission, not followed 
 
 by decree, ^. 
 judgment on qvo warranto, 238. 
 decrees, of commissioners of sewers, 288, 239. 
 interlocutory orders inadmissible, 239. 
 so awards, 239, 
 
 so judvrment of tribunal acting without 
 authority, 239. 
 
 3. qnaliflcations of hearsyf in matters of public 
 
 interest, 240-247. ^ 
 caution necessary, 240. 
 
 competent knowledge in declarant necessary, 
 
 240. I 
 
 distinction between putlic and general rights, 
 
 - 24J. 
 
 when competent knowledge presumed, 242. 
 
 and when it must be shown, 242. 
 
 inadmissible on questions of private right, 
 
 242, 2«. 
 position of parties presumed to be as stated in 
 
 ancient documents, 343. 
 proof of modem exercise of right, when neces- 
 sary, 244. 
 
 and when not, 244. 
 to show manorial custom of descent, 244. 
 
 existence of manor, 244. 
 opinions not founded on statements of others, 
 
 246, 
 
 4. hearsay post litem motam generally inadmis- 
 
 sible, 245. 
 lis mota defined, 245. 
 examples, award on same subject, presentment 
 
 of bomage as to claim, 246-247. 
 proceedings in ancient suit, when admissible, 
 
 247. 
 
 so as to orders of justices, 247. 
 
 declarations of deceased persons, 246. 
 II.— Exception to the general rule, in questions of 
 
 pedigree, 248-281. 
 reason of exception, 248, 249. 
 instances, where rule was applied. 349. 
 1. what are matters of pedigree, 250-254. 
 general evidence of descent or relationship, 250. 
 flme of birth, priority of birth, 350. 
 proof of marriages, age and death, 250, 288, 364. 
 as to which of three born at one birth was the 
 
 elder, 261. 
 on a question of legitimacy, American cases, 251. 
 
 not to support plea of Infancy, 262, 
 
INDEX. 
 
 773 
 
 HBAESAY— conMnwd. 
 bearaay not admissible as to placs of birtb, 963, 
 
 258. 
 questions of pedigree involved in one of locality, 
 
 when, 253, 254. 
 on questions ol settlement, 254. 
 non-access, question of bastardy, 254. 
 
 2. forms in which hearsay admissible in matters 
 
 of pedigree, 255-869. 
 
 entries in family books^ 255, 
 
 inscriptions, 255, 256. 
 
 family correspondence, 256. 
 
 recitals in family deeds, 256, 257. 
 
 town records, church records, 255, 256. 
 
 descriptions in wills, 258. 
 probate, 268. 
 ledger book. 258. 
 
 bills, &c., in chancery, 258, 269. 
 
 not admissible, unless ante lit^m motam^ 259. 
 
 general rule as to recitals, 280. 
 
 engraving on rings, 260. 
 
 charts ol pedigree, 2tip-262. 
 place where pedigree found, 263. 
 
 inscriptions on monuments, tombstones or cof- 
 fin plates, 263. 
 
 hearsay of death, time of. 263, 264, 265. 
 
 continuance of life, 264, 266. 
 
 loss on board of ship, not heard from, 264, 265. 
 
 monument in dissenter'sburial ground, 263, 265. 
 
 foreign monuments, 265. 
 mistakes on monuments, 265. 
 
 armorial bearings, 266, 267. 
 
 heralds' books, achievements, &c., 266, 277. 
 
 conduct or treatment in family, 267, 268. 
 
 declaration upon declaration, when admissible, 
 
 268. 
 
 inquisitions :post mortem. 269. 
 
 3. qualifications of hearsay in matters of pedigree, 
 
 369-281. 
 requisite knowledge, 269, 270. 
 persons connected with family, 270. 
 servants, friends, &c., 270. 
 connection by blood or affinity, 271. 
 principle of limitation, 271. 
 declaration of husband as to wife's legitimacy, 
 
 271. 
 limitation of rule as to affinity, 272. 
 
 illegitimate member of family, 272. 
 declaration of midwife or godmother, 273. 
 
 of clergyman, as to marriage, 273, 274. 
 special verdict not admissible as reputation, 274. 
 general reputation, in^proof of marriage, 274. 
 relationship of declarant to be proved aliunde^ 
 
 275. 
 seem as to ancient pedigree, 275, 276. 
 hearsay need not be cotemporaneous, 276. 
 declarations post litem Tnotam not admissible, 
 
 276-279. 
 knowledge otlis mota by declarant, 279. 
 statement in contemplation of litigation, 279. 
 made to prevent disputes, 279. 
 declarations by persons in^an jure^ 280. 
 m.— In proof of ancient possession, 281-285. 
 ground (^exception, 281. 
 ancient documents admissible as evidence of 
 possession, 281, 282. 
 leases, 281, 282. 
 
 licenses rent rolls, ccjirt rolls, 282. 
 whether evidence of b'oundary, 282. 
 maps, 282. 
 conditions of admissibility, 283. 
 acts done with reference to the documents, 
 except when thev are ancient, 283. 
 possession under lease, 283. 
 confirmatory proof by payment, ^c, when 
 
 necessary, 283, 284. 
 possession or modem use under documents, 
 
 284. 
 custody of documents, 285. 
 IV.— Dying declarations, 2. 5-299. 
 grounds of admissibility. 285, 298. 
 Umitatious of admissibility, in civil cases, 285, 
 
 286. 
 by attesting witness, 285. 
 limitation under American decisions. 286, 287. 
 of a party not member of family as to relation- 
 ship, 286, 287. 
 as to settlement, 287. 
 limitation in criminal cases, 287. 
 admissible only when death of declarant subject 
 of charge, 287. 
 
 BSiKRSKY— continued. 
 
 must relate to circumstances of death, 287. 
 inadmissible in proof prisoner's insanity, 287. 
 
 or of any other independent fact, 287. 
 inadmissible to prove an attempt to procure an 
 abortion, 287. 
 
 the crime of robbery, 287. 
 or perjury, 287. 
 on a charge of murder, the dying declarations 
 
 of another party rejected, 287. 
 admissible though favorable to prisoner, 287. 
 belief in a future state requisite, 287, 288, 298. 
 declarations of a young child inadmissible, 288. 
 of an attainted convict, 288, 292. 
 of an accomplice admissible, 288. 
 preliminary inquiry as to state of deceased 
 declarant, 289, 290. 
 must contftnplate impending death, 289-291. 
 
 how shown, instances, 289^292. 
 actual expressions unneci'ssary, 692. 
 interval before death, 289, 293. 
 illustrations of the rule, American cases, 290, 
 
 291. 
 whether admissible iiany hope of life remains, 
 
 289-292. 
 admissibility of, a question of law, 291. 
 statements to, and by the deceased, 290, 291, 293, 
 
 294. 
 whole expressions used by deceased to be given, 
 
 293, 294. 
 representations to deceased, as showing state of 
 
 mind, 294, 295. 
 manner of making representations to deceased, 
 
 294, 296. 
 mode of making dying declarations, 295. 
 
 may be in answer to questions, 296. 
 in form of a deposition, 295, 296. 
 need not be in writing, 296. 
 if written, it should be produced if practicable, 
 
 296, 297. 
 right of prisoner " to be confronted with wit^ 
 neesea against him," not impaired by admis- 
 sion of dying declarations, 296. 
 declaration admissible only as to facts stated, 
 
 297. 
 admissibility of, a question for the court, 297, 
 
 298. 
 written statement to be produced, or its ab- 
 sence accounted for 297. 
 declarant's situation univalent to an oath, 298. 
 effect of dying declaraflons, 298, 299. 
 should be weighed with reference to the cir- 
 cumstances. 298, 299, 300. 
 declarations of opinion should have no weight, 
 
 297,298. 
 V. — Declarations against interest, by persons 
 since deceased, 300-346. 
 general rule 300-304. 
 principle of admlssi)iility, 300-304. 
 entries discharging demands, American cases, 
 
 301-303. 
 verbal declarations, 304. 
 declarant must be aece.ased, 304. 
 Englishrule not adopted in Hew York, 305, 301, 
 
 334,335. 
 as to choses in action assigned, 305. 
 means of knowledge in declarant, 305. 
 declaration need not be made in course of busi- 
 ness, 305. a 
 nor connected with cotemporaneous facts, 305. 
 interest, amount of, 305, 306. 
 
 how proved, 305, 306. 
 entries relating to receipt of money, 306. 
 in books of stewards and other officers, 306. 
 in private books, 307. 
 American cases, principle of, 307-309. 
 entries must be such as to charge the party 
 making them, 310. 
 as to the custody of these books, 310. 
 receipts, 310. 
 entries in rate-books to prove occupation or 
 
 payment, 310, 311. 
 relating to right of property, declarations by 
 former owner, 311, 314-332. 
 by occupier, to sh^ tenancy, 311, 
 by party in possession against party under 
 
 him, 311. 
 general rule upon this subject, 311. 
 recognition by former tenant for life as to par- 
 ticulars of estate, 312. 
 as to party haying only life interest, 313. 
 
 Vol.! 
 
■774 
 
 HfCEX. 
 
 WEASSAY— continued. 
 
 proof of occupation requisite, 313. 
 when occupation or pOBBcaaion determined, 
 J 313. 
 
 declaration made hj persons aliTC, 383. 
 hearsay emanating from former owner, 314, 
 Ivat V. Finch, considered, 314. 
 considered, first, in its application to real 
 property, 815.' 
 declarations and admissions of ancestor against 
 ■ ■ heir, 315. 
 
 as between devisor and devisee, 315-316. 
 declarations of grantor, vendor, &c., of real es- 
 tate against parties claiming under (hem, 
 318—321. 
 hy party in possession, 320. 
 part of res gesta, when, 320, |^1. 
 when inadmissible, 322. 
 application of the rule to personal property. 
 
 conveyed by a ct and operation of law, 322, 333. 
 
 conveyed by act of parties, by sale, 323, 324. 
 rule discussed, 325. 
 as to chosea in possession, 325-337. 
 as'to choses in action, 327. 
 negotiable paper transferred, over-due, 328, 3.31, 
 
 rule in New York, 330, 331, 3.32. 
 discussion of the rule, 338-332. 
 recent American*decisions, 3.32. 
 form in which declarations may be made, 333, 334. 
 knowledge of declarant, 333. 334. 
 declarations tending to in cumber estate, 334, 335. 
 not admissible unless against interest on the 
 whole, 334, 335. 
 entries, &., by party under whom title derived, 
 
 inadmissible, 335. 
 in debtor and creditor account, the whole must 
 
 be read, 336. ' • 
 
 entries by executor, 335, 336. 
 
 by proctors, 336. 
 entries'by deceased clerk or agent in course of 
 business, 336, 337, 
 in clerical books, 336, 337, 
 in books of deceased rectors and vicars, when 
 
 admissible for their successors, 337, 338, 
 by collectors of tithes, 337. 
 In books of lay impropriators. 338. 
 entries need not be cotemporaneous with facta, 
 * ■ 338, 339. 
 
 evidence of facte therein stated, if immediate- 
 ly connected, 839, 340. 
 several cases reviewed, 3.39-342. 
 whether evidence of collateral facts, 343-344. 
 admissible, though declarant not a competent 
 witness, 844, * 
 
 and thouga fact provable by other evidence, 
 
 344, 345. 
 proof of declarant's situation, aliunde, 346. 
 not so when he acts in public character, 345, 
 
 346. 
 ground of admitting entries, 844. 
 receipts and entries as part of res gestce, Ameri- 
 can cases, 845. 
 entries need not show from whom moneys 
 
 received. 346. 
 what proof of handwriting or signature neces- 
 
 - eary, 346. 317. 
 * by agent, 346. 
 
 proof of agency, 346, 347. 
 pro f of handwriting dispensed with in ancient 
 documents, 347. 
 VI.— Declarations in the ordinary courao of ofBcc 
 or business, 347-388. 
 rule stated, 347, 348, 852. 
 mere naked h arsay, what is, 348. 
 entries, receipts, mertiOranda by third persons, 
 
 Am-rican note, 348-351. 
 entries by deceased clerk, 348, 349. 
 
 by deceased notaries, 340. 
 effect to be given to Buch entries, 350. 
 must have been made, when, 850. 
 miiat be produced, when, 361. 
 how supported by other evidence, ,351. 
 rule does not extenijfto 01-nl stat. ments, 351. 
 (leiit/h of the maker, to be flrat shown, 351. 
 insanity emiiralent to death, ,351. 
 qnei'e, of abweuce from state, 351, 
 ground for admitting such evidence, SS2. 
 as to entrioe in nccount-books tnade cy^ry Sat- 
 urday night, 363. " 
 
 B.SARS AY— amtimied. 
 ■ . review of English cases in text, 353-356. 
 entries in shop-books, 853. 
 
 American ckses on the subject, 370-386. 
 knowledge of facts necessary in pany making 
 
 entry, 366.' - , i . 
 
 entries of independent matters not within the 
 rule, 357-359, > : 
 
 rule illustrated by cases, 357, 358, 369. 
 meaning of "usual course of business," 360. 
 entry must be cotemporaneous with- act done, 
 
 360-362. 
 rule in New York as to entries by deceased per- 
 sons, 861. 
 late American cases, 861. 
 corrt.boration, how far required, 363. 
 entries admissible, though :better evidence 
 
 attainable, 363. ■ - 
 
 verbal declarationa admissible, when, 363. 
 proof of declarant's situation to be given aliunde, 
 
 ' 3ti3. 
 when evidence for parties in privity, 364. 
 indorsement on bond of payment of Interest, 
 admissible for representative of obligee, 
 
 so of indorsement on bond of trust, .'"64, 365. 
 so of indorsements on note by payee and ex- 
 ecutor, 366, 367. ""' 
 not evidence of payment so as to take the case 
 out of the Statute of Limitations, 366,- 367. 
 see statutes there cited, 366, 367, 
 proof of tiihe when indorsement made, requisite, 
 . ■ ' • ' 368, 
 presumption as to time when made, 368, 369. 
 
 a question of fact, 369. 870. ' ' 
 
 shop-books when not evidence for tradesmen, 
 
 ■370. 
 death of person making entry to be proved in 
 
 all cases, 386. 
 writings must be produced from proper custody, 
 
 386. 
 English rule adopted in several of the states, 
 
 in others a different rule prevails. 370-386. 
 entries in books of account, when evidence, 
 
 371, et sea. 
 books, how kept, 371-374, 876, 377, 380, 881, 884- 
 
 386. 
 peculiarities of the law in the several states, 
 
 370-376. 
 books offered in evidence, how supported, 376. 
 ' by oath of party, 376. 
 
 administered iu open court, 875. 
 form of the oath, 876, 376. 
 party's credit may be impeached, how, 876. 
 oath to be made by the party that made the 
 
 entry, 37B, 377. 
 necessity of admitting snch evidence. 377. 
 subject matter of booK account, 377-879. 
 property sold and delivered, 877. 
 services performed, 378. 
 entries in books of account not admissible 
 
 where there is other evidence, 379, 880. 
 time when entries should be madofiiiSO, 881. 
 
 in book of daily accounts. 881,'884-3S6. 
 must be book of original entries, 381, 38B, 386. 
 form in which it must be kept, 871-374, '881-383. 
 must be a book of specific charges, 883. 
 rank only as eecondai^ evidence, 388. 
 may be waved, 384. 
 
 book evidence of items charged, and prices 
 carried out, 884. 
 on a collateral point, 384. 
 tests of credibility, 371, 884. 
 accounts kept on loose sheets of paper, 884, 
 
 386. 
 supplotory oath, cross-examination, 386, 
 of what facts book is evidence, 885, 
 not evidence of the sale of a horse, 886. 
 nor of moiiey lent, 886, 386. 
 nor of agency to receive, 8s5. 
 nor of three months' service entered as one 
 
 item, .386. 
 nor of money paid to another, 385. 
 or spent in search of a slave, 386. 
 or of work done under special contract, 386, 
 nor of payment of a note, 886, 
 book to be sustained, ^ow, 886. 
 by showing that the party keeps correct books, 
 
 bt Ms o-vvn oath, 386. 
 
INDEX, 
 
 775 
 
 common repatation, when admissible, 387. 
 exceptions to the rule excluding hearsay, 387- 
 
 389. 
 voluntary coijfession of crime, when not, 3SS. 
 invoice in case of insurance. 388. 
 certificate of oflBcer that he has searched for 
 
 papers in his custody^ 883. 
 general reputation on a question of partnership 
 
 inadraiss'hle. 388. 
 recent cases, 338. 389. 
 
 hearsay adraisaible in electton cases, to what 
 extent 389. 
 VII.— Evidence of deceased witness given on 
 former trial, 389-403. 
 the death of the witness leta in hie testimony, 
 
 38», 390. 
 where the cause was the same in substance, 
 
 39U., 
 and between the same parties. 391. 
 not literally or nominally the same, 391, 392. 
 sufficient if parties to present action were par- 
 ties to the former, 39i. 
 the point in issue to be the same, 392. 
 
 but need not be^precisely the same. 393. 
 objection to conipetency on pecond trial, 393. 
 absence will not let in testimony given on 
 
 former trial. 393,394. 
 cases of sickness, decisions in Louisiana, 394. 
 analogy between death andfebsence of witness, 
 
 395. 
 mode of proving witnese^'s former testim* ny, 
 
 395, 
 judge's notes not evidence per se, 395-398. 
 the very words of the witness, not necessary, 
 
 39M00. 
 counsel's notes of testimony not evidence, 398. 
 
 how rendered admissible, 400. 
 testimony given from recollection, 399. 
 every wordof witness not necessary, 399. 
 but the substance of his whole testimony is, 
 ■*^ 400. 
 
 English rule, how testimony may be proved, 
 
 400, 401. 
 who are considered same parties, 401. 
 those who are privies in law blood or estate, 
 
 402. 
 
 ViU. — Admission by parties to the suit, 403-531. 
 
 admissions and confessions admissible on the 
 
 ? round of their being made against interest, 
 02. 
 not evidence in favor of party making them, 
 
 402,403. 
 vphen made evidence, 403. 
 letters written by party not evidence for him, 
 
 403, 404. 
 declarations of a party evidence when a part of 
 
 the res g-es^tas, 404, 405. ' 
 
 not otherwise, illustrations, 404. 
 exception, in case of official return's and acts, 
 ' ' 405. 
 
 statements and confessions proved by an oppo- 
 nent. 405. 
 1. ot general admission^ by party to suit, or by 
 one for whose benefit the suit is brought, 40&- 
 
 503. 
 whple of admission to be received, 406. 
 though each part not entitled to same weight, 
 
 407. 
 the whole statempntio be received, 407. 
 that in his favor as well as that against him, 
 
 4U8. 
 rule, applies equally to written as oral state- 
 ment, 409,410. 
 and to books when proved in evidence, 410. 
 
 and to answers in chancery, 410, 413. 
 claim and counterclaim, 411. 
 effect of as esvidence. 410. 411. 
 documents referred to in admission, 4ll. 412. 
 admissions made after suit, seceived with cau- 
 tioh, 411. 
 
 inter roga.tories. 412, . 
 examinatiot) in bankruptcy, 412. 
 books referred to in admission, 412. 
 documents referred to and inclosed inJetter,413. 
 
 otherwise! as to disconnected p'apersi 4l3. 
 the Iett,er must be proved, 412, 413. 
 
 in case of loss, how proved. 413. 
 limits to the general rule, 414. 
 distinct entrigB in bo9k not to be reaS, 414. 
 as to a series of let tei:s copied in a book, 414. 
 
 WEAUS AY— continued. -, . 
 
 part of examinations before commissioners of 
 
 bankruptcy, 414. 
 entries in books of a corporation, 414. 
 
 pass-book as evidence, 414. 
 conversations, rule in respect to, 414, 415, 
 
 the whole may be called for, 415, 416. 
 correspondence by letteis, 416. 
 both sides of correspondence to be given, 
 416, 417. 
 writ containing return, 417. 
 proceedings in chancery. 417. 
 effect of receiving whole admission, 417, 418. 
 
 fiivorable parts of, 417-419. 
 admission of an account, asserting an offset, 419. 
 answer in chancery. 420. 
 bill in chancery, 420. 
 effect of admission containing hearsay, 420. 
 as to contents of a written document, 421. 
 copy of agreement, 421. 
 recital of writ, 421. 
 verbal admissions, 422. 
 authorities in favor of their admissibility, 422, 
 
 423. 
 as to assignment of lease, 422. 
 as to contents of promissory not«, 423. 
 as to contents of agreement. 422. 
 of a written agreement directly in issue, 433. 
 
 as to a demise, 423. . ' . ' 
 
 authorities against admissibility, 423-425. 
 
 weight and value of such admissions, 425. 
 written admissions, 425. 
 
 dissolution of partnership, 425. 
 holding shares in joint stock company, 425. 
 
 conveyance of land. 425. 
 mode of proving verbal admissions, 425. 
 attesting witness roust be generally called not- 
 withstanding admission, 435, 426. 
 exception in the c^e t»f promissory note, 426. 
 by parol not rec^able to contradict docu- 
 mentary evidence, 4-iG. 
 nor to prove matter of record, 426. 
 discharge under insolvent act, 426. 
 admissions, pending treaty of compromise inad- 
 missible, 42(}, 427. 
 or when made expressly without prejudice^ 
 
 426, 430. 
 
 admission made in negotiation for compromise 
 
 admissible to prove a conceded fact, when, 
 
 427-430. 
 
 offers of compromise are not admissible, 428, 
 
 429. 
 nol" admissions for the sake of settlement, 
 439, 430. 
 letters and communications "without preju- 
 dice" inadmissible, 430. ^ 
 admissible in proof of facts when not without 
 
 £rejudlce, 431. 
 ere compromise completed, 431. 
 rule in regard to admission of collateral facts, 
 
 431. 
 offer to admit' facts with view to arbitration, 
 
 431. 
 a statement of facts in offer admissible, 431. 
 admission of facts under compulsion of law, 
 receivable in civil cases, 433. 
 not so in criminal cases, 432. 
 examination In bankruptcy, 432. 
 evidence for strangers, 433, 433. 
 where not, fo^ assignees for bankrupt, 433. 
 indirect or implied admissions, 433. 
 of title in notice of sale, 434. 
 of jurisdiction, in appeal, 434. 
 of particular relation or character by recogni- 
 tion, 434. 
 acts eubfeequent showing his character, 434, 
 
 435. 
 of prof-^ssional qualifications, as attorney or 
 
 ghysician, 436. 
 en admission does not admit qualifica- 
 tion, 436. 
 of demeanor, &c., upon statement of othet 
 
 parties, 436, 437. 
 waiver of a forfeiture in lease, what is, 437. 
 silence, ah admission when, 437. 
 wh^n.an account is presented, 437. 
 or a fid in fhvor pf demand asserted, 437. 
 answering to a name, evidence that it is his, 
 
 437. 
 qualification of the rule. 438. 
 not called upon to reply, when, 438. 
 
776 
 
 IKDEX. 
 
 HEARSAY— cmtiwuea, 
 
 receiving an account current, without objec- 
 
 tioDj 438, 439. 
 receiving an account stated, by letter. 439. 
 admission implied from state of pleadings, 
 
 439, 440. 
 by notice given by attorney in cause, 440. 
 use of evidence given in another cause with 
 
 assent of opposite party, 440. 
 bill of exceptions not evidence in another 
 
 trial, 441. . 
 
 what acts and declarations receivable as ad- 
 missions, 441. 
 naked declarations of intention not admissi- 
 ble, 441. 
 admission as to legal effect of a contract, 443. 
 quere, if an escrow oe proof of facts stated in 
 
 it, 442. 
 evidence of adoption of a note, 442. 
 effect of admissions by acquiescence, 442-445. 
 in criminal cases, 443. 
 of tenancy, by receiving notice to quit, 443. 
 contents must be shown to be known, 443. 
 by bankrupt, as to petitioning creditor's debt, 
 
 443. 
 in denial, act of bankruptcy, 443, 444. 
 inferred from forbearance. 444. 
 knowledge of rights must be shown, 444. 
 , not inferred from unanswered letter, 444. 
 may be ftom account delivered, and not ob- 
 jected to, 445. 
 not from unanswered statement by mere 
 
 stranger, 445. 
 nor when reply not expected, 445, 446. 
 party charged before magistrate, 445, 446. 
 remarks before magistrate, 446. 
 statements in making charge admissible to 
 show ammue^ 446. 
 replies admissible, ^ prisoner make any, 446. 
 admissions inferred fcitti access to books con- 
 taining entries, 44o, 447. 
 books/iccessible to both parties, 447. 
 bookffof a public company, 447, 448. 
 bank-books, when evidence against customer, 
 
 447, 448. 
 court rolls not admissions by copyholders, 448. 
 admissions inferred from papers in possession 
 of prisoner, 448. 
 dei)08itions enrolled by assignees, not admis- 
 sions by them, 449, 
 indorsement on feoffment not evidence against 
 
 person producing it, 449. 
 books of partners, evidence against firm, 449. 
 books of bank not evidence against customer, 
 
 449. 
 so of a corporate company, 449. 
 document produced by party, 449. 
 
 affidavit, 449. 
 deposition in bankruptcy, 449. 
 not evidence, unless party ^ew its contents, 
 
 450. 
 deposition iniquity, 450. 
 evidence given in former trial, 450. 
 inscription of name on stage coach, 450. 
 admission of debt to an attorney, not admis- 
 sion of delivery, 450. 
 admissions inferred from treatment of subject, 
 
 450, 451. 
 non-existence of claim, by omission in sched- 
 ule of insolvent, 451. 
 to whom f-redlt given, by delivery of bill. 451. 
 notice of dishonor, by promise to pay bill or 
 
 note, 451. 
 settlement by relief to pauper, 451. 
 nuisance admitted on former trial, 451. 
 admission of demand upon arr£||;> 451. 
 not inferred by conduct, when matter of law 
 involved, 452. 
 
 as a discharge of insolvent by quarter sessions, 
 
 452. 
 as to status of marriage, 452. 
 in prosecutions for bigamy, 452. 
 
 admission of marriage not sufficient, 452. 
 *ect of admiaaions as estoppel^ 453-4H4. 
 when acts are done upon faith of statement, 
 
 468. 
 against whom receivable, 453, 454. 
 different classes of admissions, 464. 
 dmlssions with a view to evidence, 454, 
 'missions or conduct inducing others to act 
 -»n them, 454.461. 
 
 HEAESAT— tfoniirtwrf. 
 
 operate as an estoppel inpais^ 454. 
 familiar instances of, 455. 
 tenant estopped from disputing landlord's 
 
 title. 455. 
 other illustrations of the rule, 456 457. 
 admission of debt inducing a suit upon it, 458. 
 
 admission of possession, 458. 
 admission of ownership of vessel, 459. 
 admission of executorship by conduct, 459. 
 admission of agency, 459. 
 admission of same, 459, 460. 
 admission of calling or profession, 460. 
 allowing name to be used without objection, 
 
 460. 
 or acts to be done, 460. 
 inventory concludes an executor, 460. 
 estoppel only in favor of party misled by state- 
 ^ ment, 460, 461. 
 
 mistakes that do not mislead do not bind, 461. 
 
 qitere as to mistakes that do, 461, 462. 
 oral admissions received with caution, 462. 
 admission as to what law is, or legal effect of 
 
 contract of no value, 462. 
 various admissions, effect of, 463. 
 acquiescence in proceedings in bankruptcy, 
 &c., 464. 
 
 by bankrupt as to validity of fiat, 464. 
 by petitioning creditor, 464. 
 admission of tsle in another, 465. 
 by accounting with person in particular 
 
 capacity, 465. 
 by assumption of character as physician, 
 
 465. 
 giving a note or bill for goods, admits price 
 
 reasonable, 465. 
 holding out woman as wife, 455, 465. 
 
 wife estopped by representations, 466. 
 estopped from denying an assumed name, 
 
 when, 466. 
 estopped from denying liability as partner, 
 
 when, 466. = 
 
 as to tenant disptiting landlord's title, 467, 
 
 468. 
 what does not amount to admission of title, 
 
 468. 
 attornment without payment of rent, 468. 
 payment of rent to another party may be ex- 
 plained, 468, 
 
 may show landlord's title expired, 468. 
 acceptance of bill admits drawer's signature, 
 
 468. 
 not that of indOrser, 468. 
 of agent by account rendered, 469. 
 bailees admit title of bailor, 469. 
 in criminal cases, 469. 
 adrp.is^'nsfrom conduot not (xmdusive. 469. 
 admissions on oath before tax commissioners, 
 
 470. 
 in answers in chancery, 470. 
 sworn entry in custom-house, 470. 
 omission of debt in schedule by insolvent, 
 
 471. 
 the intent of assignor. 471. 
 admissions in deeds operate as estoppels, 471. 
 statement of payment of consideration, 471. 
 
 when may be rebutted. 471. 473. 
 not conclusive, when action not brought upon 
 the deed. 472. 
 nor as to matters of description, 472. 
 nor as to matters of recital 473. 
 unless contract has reference to recital, 472, 
 
 479. 
 binding upon privies in estate, 473. 
 and in favor of a stranger, 473. 
 distinction between English and American doc- 
 trine as to effect of recital of one deed in ano- 
 ther, 473. 
 admissions in writings not under seal, 474. 
 receipt for money, 474. 
 
 does not exclude parol evidence, though in- 
 dorsed on deed, 474. 
 what may be shown to Impoach receipt, 474-477. 
 misrepresentation, fraud, mistake, 474r476. 
 special receipts, 476. 
 
 embodying contract, 476. 
 receipts included in deeds, effect of, 477. 
 acknowledgment of v^ue received in note, 
 
 477. 
 adjustment on policy, 478. 
 where mistake In law or fact, 478. 
 
INDEX, 
 
 777 
 
 BSABSAY— continued. 
 
 when inventory for probate, not evidence of re- 
 ceipt of assets, *78. 
 mistake in Invoice as to credit, 478. 
 bill delivered by attorney, effect of, 478. 
 parish certificate, 478. 
 bill in chancery does not conclude party filing 
 it. 478. 
 may be used as an admission, 479. 
 admissions verbal, received with caution, 479. 
 when proved, strong evidence, 479. 
 must be made by party to suit, 479, 480. 
 
 or party in interest, 479, 480, 
 admissible though made by nominal party, as 
 a trustee, 480. 
 so in the case of an assignee or c^tui que 
 trust, 481. 
 by assignor after assignment inadmissible, 
 
 481, 4S2. 
 effect of assignment, rights of assignee, 483, 
 
 by real party in interest, 483. 
 assignment, how completed, 485. 
 admissions by party suing for benefit of anoth- 
 er, 4S1, 484. 
 
 fnardian procTiein ami, 485. 
 y person beneflc'ally interested in suit, 486. 
 by ceetui que trust, 486. 
 by person to whom money payable under 
 
 bond, 486. 
 by debtor, where money deposited to pay 
 
 creditor, 486. 
 by third person, for whom deed is detained, 
 
 486. 
 by person really interested in a policy, 486. 
 by owner of a snip in action by master, 486. 
 by cognizor in replevin. 486. 
 by rated inhabitants, 487. 
 by corporators, by bank officers and directors, 
 
 487, 488. 
 when part otres gestce, 487, 488. 
 by party who has indemnified the sheriff, 488. 
 
 493. 
 by under Sheriff to charge sheriff, when, 488. 
 by person whose liability is in issue, 488, 489. 
 by bankrupt in action by assignees, 489. 
 not admissible, if made after bankruptcy, 
 
 489. 
 by debtor in favor of assignee of property, 
 
 489, 490. 
 by petitioning creditor as to amount of his 
 
 debt, 490. 
 by party in different capacity, 490. 
 by perspn afterwards chosen assignee. 490, 491 . 
 by one party evidence against another jointly 
 »■ interested, 491. 
 
 rule in New York, different, and la several 
 states, 491. 
 by English rule, interest must be joint, 498. 
 answers by several defendants do not bind 
 
 each other. 493. 
 unless co-defendants are jointly interested, 
 
 498. 
 answer of retired partner does not bind 
 others, 498. 
 in torts, admission by one not evidence against 
 another, 493. 
 
 cases cited and commented upon, 493-495. 
 exception incases of conspiracy, i'lS. 
 proof of commoi dceig^, to let in declara- 
 tions of one. 494, 495. 
 by partner, being party to the suit, 495, 496. 
 by joint grantors, 496. 
 by one of several heirs defendants, 496, 503. 
 must have joint interest. 496. 
 in case of joint makers of a note, 496, 497, 601. 
 declarations of one of legatees under will, 497. 
 joint contract or covenant, 497. 
 admissions of one administrator inadmissible, 
 when, 497, 500. 
 
 of one partner against others^ when, 498-600. 
 of one defendant on their joint and several 
 note, 49,^ 501. 
 admissions by one partner, how far evidence 
 as:ainst firm, 498, 499. 
 late American cases, 600. 
 admission of persons not parties to suit, 600. 
 by one joint maker of note, to take it out of 
 the Statute of Limitations, 498-500, 501. 
 statement by one as to facts done before part- 
 nership, 600. 
 
 HEAESAT— (joniiretwd. 
 
 by one as to other facts, not partnership 
 
 affairs, 600. 
 by parties to negotiable paper, 601. 
 admission by one of several makers of note by 
 part payment, 501, 508. 
 admission must relate to joint debt, 503. 
 3. of admisions made by parties under a judge's 
 order; 603. 
 notice to admit must be given. Code of N. T., 
 
 503. 
 foreign documents within rule, 503. 
 notice must be given a reasonable time before 
 
 trial, 504. 
 usual form of order, effect of order of admission 
 by consent, 504. 
 
 admits document rightly described, 604. 
 as counterpart of lease, 504. 
 execution of deed, 504. 
 authority of agent to accept bills, 505. 
 order does not preclude objection to admissi- 
 bility, 505, 506. 
 variance between order and document when 
 
 immaterial, 506. 
 previous inspection of document not requisite, 
 
 50B. 
 proof of identity of document jiroduced, 606. 
 admission available on new trial, 506. 
 disobedience of order, eft'ect of, 506, 507. 
 order made by judge at chambers, 507. 
 recent statutes on subject, 604. 
 in New York, 603. 
 3. Of admissions by agent of party, 507. 
 to be received with caution, 507. 
 objections to, 507. 
 general rule stated, 507. 
 
 declaration must be in the course of business in 
 the scope of the agents authority, 607, 613, 
 
 616. 
 statement in making a sale, 607. 
 statement proved without calling agent, 507, 
 
 608. 
 statement in transaction of principal's business, 
 
 608. 
 so as to form part of the res gestcB, 608. 
 illustrations of tne rule, by cases, 508-511. 
 statement made in act of paying money, 509. 
 in buying a note, 509. 
 in receiving property, 509, 510. 
 In selling property at auction, 610. 
 in receiving money, 510, 518, 510. 
 in making a survey as directed, 610, 613. 
 inadmissible when beyond authority delegated, 
 
 611-513. 
 or made as to a past transaction, 613, 51.3. 
 distinctinction between acts of general and 
 
 special agent, 613. 
 warranty of horse in act of selling it, inadmis- 
 sible, 518, 514. 
 
 not so if made afterwards, 514. 
 declarations of shopman not in the course of 
 
 business, 614. 
 the agency must be proved by other evidence, 
 
 514, 615. 
 letter of agent, when admissible, 514, 615. 
 
 when adopted by principal, 516. 
 agency to sell lands, M5. 
 
 now proved, where it has been lost, 515. 
 authority to make admissions may be express 
 or Implied, 516, 517. 
 express, by attorney, 516, 517. 
 by referee, 617. 
 bj; arbitrator, 517. 
 miner's jury. 617. 
 implied, wife, 618. 
 her^.admi-'sions not generally binding on 
 her husband, 617. 
 
 otherwise ifhesuesasher representative, 
 
 518. 
 her authority inferred, when, 618. 
 acknowledgment of debt, not binding, 
 ^ , 618. 
 
 words of an interpreter admissible, when, 519. 
 
 or of a special agent, when, 519. 
 admissions of agents in criminal cases, admis- 
 sible when, 530. 
 instructions to, not admissible, 530. 
 4. Of admissions by under-sheriff, bailiff, attorney 
 counsel, &c., 530. 
 by under-sheriff, when they tend to charge him- 
 self, &c., 620, 621. I 
 
778 
 
 INDEX, 
 
 BMAUSAY— continued. 
 
 declarations accompanying official act arc in 
 
 nature of original evidence, 531. 
 his admissions admissible, wnen,- 521. 
 Bis act, as in making a return! is act of sUeriff, 
 
 531, 
 his acts deemed official, wheii and how far, 521, 
 
 522. 
 declarations hy guardian do not bind a rhinor. 
 
 522. 
 declarations and admissions, direct admissions, 
 
 522,523. 
 indirect admissions, 523. 
 extent of admissions, construction of, 523, 
 bind only in the cause, 52^. 
 limit of attprney's right, 623, 524. 
 proof |)f appearance as attprriey, 524. 
 admission may be used on new trial, 524. 
 not admissible in criminal casps, 624. 
 nor when made "without prejudice," 523. 
 ' admissions by clerk admissible, when, 534, 
 by counsel in cpndnct o' cause, 524i 535. 
 in statements to jury, 525. 
 ; on former trial, 525. 
 admissions by principal not evidence against 
 
 surety, 525, 526. , 
 entries by deceased principal in course of diity, 
 
 &c., 626. 
 surety not affected by judgrhent against princi- 
 pal, 526. 
 principars admissions may lie part of ree 
 gestae, B26. , , _ 
 
 admissions, evidence' against privies, 6^6, 627. 
 or persons identified in interest with party 
 making them, 526. 
 privies in blood, -527. 
 in liw, 627! 
 in estate, 527. 
 by occupier of lan<^, 628. 
 when not evidence. 638. 
 
 other examples, 628. 
 of former bishop, as to right of presenta- 
 tion, 528. 
 of former owner as mo^us, 628. 
 ancient surveys and maps, 628, 629. 
 
 entries by deceased sti-ward, T^Jhen, 629. 
 riot admissible if made after privity deter- 
 mined, 539. 
 former owner after conveyance of advowson, 
 
 .529 
 by mortgagor after interest parted with, 529. 
 rule applicable in cases of personalty, 529, 630. 
 declarations hy assignor, 629, 630. 
 when not ,aj)plicable. 630. 
 admia-ions by prior holders of negotiable se- 
 curities, 6S0, 5.31. 
 on this subject see title AdmisBions. 
 person claiminfe'title through another bound 
 by his admissions. 530, 631. 
 limitation of this'rnle, 6sl. 
 when person making admission need not be 
 called, 531. 
 IX.— Of coflfessions by prisoners, 532. 
 grounds of admissibility, 533, 53.'). 
 prisoner may be convicted on his naked con- 
 fession, 6.32, 641. 
 but his confession should be corroborated, 
 
 633 
 or ccnpus delicti should be proved in addition, 
 
 538. 
 confessions by infants admissible, 533. 
 confession by one no evidence against another, 
 , 388. 540. 
 
 confessions by infant, must be confirmed, 633. 
 
 to what extent, illustration, 533. 
 confessions made long after arrest, 633. 
 oral in support of judicial confessions, 533, 634. 
 reason for caution in admitting confession, 533, 
 
 634. 
 confessions made in examinations before mae- 
 Istrate, 534, 535. 
 loss likely to be misunderstood or perverted, 
 
 535. 
 if taken down In writing, writing should be 
 produced, 636. 
 oral evidence of it given, #hen. 635, 636. 
 statute of New York on the subject, 536. 
 
 mode of examination, 686. 
 examination need not be signed by prisbner, 
 
 536. 
 now proved m such cases, 637. 
 
 'BMAViS/fiY-Hxmilniiecl. 
 if Bigiieid, 537. 
 
 different kinds of confession, 537. 
 effect of, when made ^jpdir threats or prom- 
 ise of favor. 537. 
 cases. of illustration, 537. 
 in cases of mm'der, confession how supported. 
 
 537. 
 whole confession to be produced, 6.37-530. 
 effect of favorable part as evidence for prisoner, 
 
 539-640. 
 witness giving prisoner's conversation must 
 give it exactly, 538. 
 and all that he said mufet be received 
 , together, .6.38. 
 
 biit the jury may believe one liart of it, and 
 disregard the other, 538-540. 
 st^tenient inculpating another. 540, 541. 
 inference from demeanor, on hearing statement, 
 
 541. 
 admission by one not evidence against another 
 
 jointly indicted with him, 641. 
 effect of confes'siph, 541. 
 
 sufficient without confirmation, 641. 
 not conclusive when it involves ihatter of law 
 and fact, 541. 
 should he supported, how, 541, 542. 
 admissioi^ pf previous marriage oh indictment 
 
 for bigamy, 642. 
 confessions must in all cases be voliihtaW, 642, 
 
 643. 
 free frgm, any practice upon his hopes or 
 fears, 643. 
 admissibility of, question forjudge, 643. 
 nature of inducement that will exclude confes- 
 sion, 544. . . - , 
 if held out by p'e'sons having authority, 
 
 544. 
 or in their presence, 644, 645. 
 caseb showing what inducements will and what 
 will not exclude confessions, 544-548. 
 mere advice will not exclude confession, 
 -537,545. 
 advice from private persons, 545, 646. 
 
 confession under promise from prosecuting 
 I attorney, 547. 
 
 religious or moral inducements will not excluf^e, 
 
 547. 
 indutements held out by person without author- 
 ity, 648-660., 
 v^here reward offered by government, 561. 
 one who has beea admitted state's evidence, 
 and confessed, refusing to testify, may be con- 
 , yicted on his confession, 561 ;- 
 suspicion of inducement given to be removed. 
 
 561* 
 confession after induceihept, though at sub- 
 sequent time, inadmissipl^, 551, 552. 
 caution required after inducement. 562, 664. 
 
 late cases illustrating, rule, 563. 563. 
 circumstances rendering confession of no 
 weight, 563. 
 advice to speak out, will not exclude, 653, 
 
 554. 
 when property found in consequence of con- 
 fession, 554. 
 fa^t provable, though confession inadmis- 
 sible, 656, 556. 
 discovfery of property with cotemporarieous 
 
 confission, flB5, 556 
 discovery after confession, implicating others, 
 
 656, 657. 
 nature of inducement that will exclude, 637, 652, 
 
 557. 
 must contain threat or promise of advantage, 
 
 where language aml^iguous. 557. 
 confession admissible, if procured by exhorta- 
 tion to speak triith, 658. 
 by indiicoment having no reference to subject 
 
 of rohfession, 568. 
 by religous or spiritual inducements,, 658. 
 by promise of favor not connected with charge, 
 
 668. 
 confession for a glass of gin, 658, 659. 
 by deception practiced on prisoner, 659. 
 made while drunk, 6,60. 
 obtained by questions iVom a stranger, B69. 
 made during illegal custody, 56p,. 
 confoBulou admissibW, made before magistrate, 
 
 660. 
 
JNDEX, 
 
 779 
 
 HEAESAT— con«m««(i. 
 
 interlocutory Temarks before magistrate, 5.60. 
 
 statement by person under charge, examined on 
 
 oath, inadmissfble, 560-868. 
 
 inadmissible' also if he be brought before 
 
 magistrate, though not under charge, 561, 
 
 j. 562. 
 
 admissible if he voluntarily appear and testify, 
 
 563. 
 examination on oath before coroner, 562. 
 statement by person not Tinder charge Or sus- 
 4U>icion, on oath, as witnesses against another, 
 ^^enerally admissible, 568. 
 
 sworn by mistake, depbsition destroyed, sub- 
 sequent statement admissible, 563. ' 
 examination belbre ^ouse of Commons, ad- 
 missible, 563. 
 
 not if cumpelled to answer questions tend- 
 ing to criminate, 563. 
 in prosecutions for perj iiry, 564. 
 confession relating to separate offense, 564. 
 implicating others, not evidence against them, 
 
 564,. 565. 
 former practice on this point, 564. 
 of theft, no evidence against receiver, 564. 
 statement of conspirator inadmissible against 
 ^ co-conspirator, unless part of res geeUe, 465. 
 confession admissible in cases of treason, if 
 proved by two witnesses, 565, 566. 
 law on subject in tMs country, 566. 
 one witness sufficient, when overt act is an 
 actual attempt on life of savereign, 56T. 
 HEATUEN, 
 admissible as witness, 20. 
 formerly considered' inadmissible, 19. 
 
 how sworn, V7'. ' 
 
 HERALDS' BOOKS OR ATISITATIONS, 
 when evidence in matters of pedigree, 266, 267. 
 See title Hearsay. 
 HOMICIDE, 
 declarations by deceased directly after fatal blow, 
 
 185. 
 on trials for murder and other crimes, proof, 830- 
 ' 834. 
 
 HOUSES, 
 
 site of an ancient not to be proved by hearsay, 233. 
 HUSBAND AND WIFE, 
 of party to suit not competent for or against, TT, 
 
 ' "'78-83. 
 recent statutory provisions, effect of, 77, 83. 
 
 See Tntrod. Chap. 
 competent in criminal cases, when, 84, SX 88, 94- 
 
 97. 
 in general not competent in criminal cases, P4. 
 may contradict each other in collateral proceed- 
 ings, 84-86. 
 neither competent to prove non-access, 87, 95. 
 
 1. husband and wife not competent against each 
 other, 83-S7. ' 
 
 2. not competent for each other, 87-91. 
 
 in action for crim. con. what evidence receivable, 
 
 91. 
 
 wife's admissions acting as agent for her husband, 
 ■ 92^94. 
 
 in cases of personal injury, each may testify 
 against the other, 94, 95. ' 
 that is,'the injiired party is a competent wit- 
 ness, 94. ' ' 
 
 competent in special cases by statute, 95-97. 
 
 in cases of bigamy, second husband or wife com- 
 petent, 96. 
 
 wife, when agent for her husband, 617-519. 
 her agency to be proved, and how, 517-519. 
 
 may contradict or impeach each other, 84, 85, 95. 
 or criminate each other, whea, 89. 
 
 not admissible to disclose knowledge acquired 
 while living together, 89. ' 
 
 not competent w here the other's interests arc in- 
 volved in the actlod, 83, 86. i . . > 
 
 ho# far competent attei- the death of the other, 
 
 79,80,89. 
 or after a divorce, 78. 
 
 competent witnesses by statute, now in England, 
 in ciwi/ Buiis, 77. 
 
 effect of holding out a woman as wife, 455, 465. 
 
 wife's representations as to her sei)arate property, 
 ' '■ , ' 460,466. 
 
 her contracts in respect to, 465, 466. 
 
 not estopped at common law, 466. 
 
 wife's admissions, not binding, 517. 
 
 imiess made with authority, 618, 519. 
 
 HUSBAND AND VnFE—emtinmd. 
 necessaries furnished to her,;gl8/ 
 purchases made by her, 519. 
 as to incompetency on ground pf interest, see 
 
 same title. Vol. III.' 
 presumption as to money raised on fife's ep^^te, 
 
 and received by husband, till, 
 necessaries ^li 'wife, living separate, 518. 
 
 I. 
 
 IDENTITY, 
 
 of parties to suit, a condition precedent to the 
 admissibility of his declaratiQns, 6. 
 
 attomeymay p^roye, 157. 
 
 Of prisoner, rule requiring confirmation of an, ac- 
 complice's evidence as to, 115-117. ' 
 
 of property stolen, how proved, 574. 
 
 by circiimBtances, when, 637. 
 
 proof of non-consent, 637. 
 nflOTS, 
 
 how defined, 9. 
 
 iocompetent as witnesses, 9. 
 
 what degree of weakness renders incompetent, 10. 
 ILLEGAQTY, 
 
 may.be shown by party to contract, when, 119-129. 
 by party to negotiable paper, -when, 119, 121, l26. 
 
 of instruments, may beprovedbyapartyto them, 
 ■ 128, 189. 
 
 See title Cmsicteration. 
 ILLEGITIMACY. See titles Bastardy, Legitimfm. 
 IMMEMORIAL RIGHTS, ' ' ' 
 
 presumptions as to, 648, 649. 
 
 rights of way and ancient ligJifPi W9-652. 
 
 fisheries, mines, 652, 653. 
 
 water powers, 653-658. 
 
 riparian owners, 653-655. 
 IMMORALITY, 
 
 not presumed, 605. 
 IMPLIED AGREEMENTS, 
 
 actions on, ifl&. 
 
 to recover money, after conversion, 825. 
 
 money obtalned'by fraud, 89^.' 
 IMPROPRIATOR, 
 
 lay, entry in books of, qitere if admissible, 338. 
 INCLOSURE, 
 
 allotment by commissioners of, how proved, 676. 
 INCOMPETENCY, J^ - 
 
 rules respecting, 7, 8. Wt 
 
 from defect of understanding, 9-14. 
 
 from defect of religious principle, 14-22. 
 
 from conviction of crime, ?2, 2S, 25. 
 
 on the ground of Interest, abojished, 24-28. 
 
 of parties to the record, 29-:58. 
 
 the old or general rule, as to parties, 2?. 
 reason or ground of the rule, Si>-^. ' ■ 
 American cases illustrating it, ,3'l-36» 
 
 of husband and wife for or against each other, 
 
 77-97. 
 INCORPOREAL RIGHTS, 
 
 presumption as to, 648, 649. 
 INDICTMENT, 
 
 What amendments allowed in, 891-895. 
 in misdemeanors, 892, 893." 
 in felonies, 892, 893. 
 
 material averments in, to be proved, 843, 844. 
 
 immaterial need not be, 834, 835, 843. 
 ' where to be tried, 890, Ml'. 
 
 Bee YaHance. 
 IND0R8ER, 
 
 what amounts to admission of noti^ce of dishonor, 
 
 "451. 
 ETDORSEMENT, 
 
 authority to make proved by practice, 595. 
 
 by a hank, presldned duly made, 598. 
 INDORSEMENT ON BONDS, 
 
 when admissible In evidence, 364, 403-^05. 
 
 e^ect of, when received, 364-366. 
 
 of payment on note, when admissible, 366-369. 
 proof of time when made, 368. ' 
 
 or livery of seizin or feoffment, not evidence of 
 fact 449 
 INDUCEMENT 
 
 matter of, need not be proved strictly, 837, 838. 
 
 to confess, effect of, 54^. 
 
 caution aftei inducement, 652, 554. 
 
 confession made after inducement, 561, 552. 
 INFAMY, 
 
 of character, from conviction of crime, 9, 37. 
 
 it is the nature of the crime that disqualifies, 22, 23. 
 
 pardon, effect of, .22, 24. 
 
 difference between oars and EngliBh statute, 23. 
 
780. 
 
 INDEX. 
 
 INFANCY, 
 admitted by pleadings, when, 748. 
 proof of, rests on party pleading, 833. 
 presumption against, 823. 
 INFANT, 
 when competent as a witness, 10-1-'). 
 admission or confession by, receivable, 532, 533. 
 representing himself of full age, effect of, 459. 
 under fourteen not capable of rape, 629. 
 under seven not capable of felony, 629. 
 INFERIOR COURT, 
 jurisdiction of not to be presumed, 610, 611. 
 
 regularity of,.will be, 611, 642. 
 examinable on appeal, a certiorari, 642. 
 judgment of, asserting facts conferring jurisdic- 
 
 tion, conclusive, 581. 
 jurisdiction not to be noticed judicially, 623. 
 INFIDEL, 
 
 "when competent as a witness, 19. 
 INFORMATION, 
 
 given to government, or to police, 161, 163. 
 nfFORMEfes, 
 evidence of, receivable, 118. 
 rendered competent by statute, 63. 
 in general, competent in c-iminal cases, 58, 59. 
 incompetent on ground of interest, when, 60-63. 
 do not require confirmation like accomplice, 
 
 118, et seq. 
 Seelnirod. Clum. 
 INHABITANT, 
 of parish, &c., formerly incompetent as witness, 
 when, 39, 40. 
 rendered competent by statute, 67 et seq. 
 rule in this country, 40, 43. 
 now rendered competent. See Introd. Chap. 
 INQUISITION, 
 evidence in matters of pedigree, 269. 
 effect of, on question of insanity, 785. 
 INSANITY, 
 renders incompetent, a witness, 10. 
 dispenses with necessity of producing witness, 
 
 351. 
 to be proved, sanity always presumed, 604. 
 
 mode of proving, 785. 
 prisoner entitled to benefit of doubt as to, 604. 
 INSCBIP;iON, 
 onbanners, ikgs, &c., how proved, 590. 
 on rings, tonfflPstones, coffin plates, in matters of 
 
 pedigree, 260, 263. 
 on coach, evidence of ownership, 450. 
 INSOLVENT'S DISCHARGE, 
 not provable by admission of, 426. 
 insolvent omission of debt from schedule, 
 effect of as admiasion, 451. 
 INSPECTION, 
 of document, ordered to be admitted, 505. 
 
 See Introd. Chap. 
 admission of documents may he called for, when, 
 
 503, 504. 
 INSURANCE, 
 misrepresentation in application for, 188. 
 adjustment on, not conclusive against under- 
 writer, 478. 
 admission by person interested in, when evidence, 
 
 486. 
 in action on policy, what admitted by payment 
 into court, 7S9. 
 ofi'or to take judgment, 789. 
 INTENTION, 
 allegation of, in criminal cases, how proved, 768 
 
 et seq., 835. 
 presumptions as to, generally, 632-640. " 
 
 guilty, when other criminal acts admissible to 
 
 show, 768. - • 
 
 declarations of testator, to sho.w, when, 180, 181. 
 proof of other acts to show, 761, 759, 773. 
 
 S roof of, to show conveyance fraudulent, 608. 
 irect proof of not admissible, when, 608. 
 and when admissible, 471. 
 presumed from means used, 681. 
 
 or from acts done, 601 
 In civil and in criminal cases, 601. 
 in destroying an instrument, 603. 
 ■ that a child did not act with guilty knowledge, 
 
 in making an erasure or interlineation, ,607. 
 
 or voluntary conveyance, 608. 
 presumed from nature of the act, 033. 
 proof of other transactions to show, 750-753. 
 other offenses and facts to show, 766, 777. 
 
 receiving stolen goods, 767. 
 
 INTENTION, continued. 
 on trials for forgery and uttering counterfeit 
 
 money, 768-773. 
 demeanor, conduct, &c., 770, 771. 
 previous circumstances and tacts, 773-774.. 
 m conspiracy and riot, 773-774. 
 on trials for crime, 834. 
 INTEREST. See Introd. C?uip.,'Vfo\.l. 
 in event of suit does not disqualify witness, 
 
 24-88. 
 Lord Denman's act, ground of, 36, 37. 
 parties rendered incompetent by, 29-35. j^,^. 
 ground of incompetency of parties, 36-38. 
 of parties not named in the record, 39-43. 
 remote interest does not disqualify, 35, 39-45. 
 question of, decided by court, 3-5. 
 must be in favor of party calling witness to dis- 
 
 quHlify, 39-31 
 renders informer incompetent as witness, when, 
 
 60-«3. 
 former rule as to direct and indirect interest ren- 
 dering persons incompetent as witnesses, 
 
 66, 67. 
 present rule as modified by statute, 67. 68. 
 effect of decisions under Lord Denman's Act, 
 
 67-76. 
 distinction between it and onr statute, 67, 68. 
 as affecting competency of witnesses. See Introd. 
 
 Chap, and VoL III. 
 declarations against;* See Hearsay, v. 
 rule as tOj affecting competency of members of 
 
 corporations as witnesses, 39-44. 
 restoring'compe'tency of parties, 33. 
 of defendant, under default, 44-48. 
 in actions of tort, 43-50. 
 time of objectin? on ground of, 97-104. 
 INrjERLINEATION, 
 
 presumptions as to, 606-608. 
 INTERPHBTEE, . 
 communications made through, between attorney 
 
 and client, privileged. 135. 
 admissions made through, admissible without ' 
 calling, 519. 
 INTERROGATORIES. See titles Deposition. 
 
 Hearsay, viii. 
 INVENTORY, 
 for probate not evidence of receipt of assets, 
 
 478. 
 INVOICE, 
 evidence of credit given to a particular person, 
 
 461. 
 not conclusive, 451. 
 IRELAND, 
 
 law in, when judicially noticed, 621. 
 ISSUE, 
 evidence to be confined to points in, 738 et seq. 
 affirmative by whom proved, 809-812, 836-843. 
 what sufficient proof of, 824-830. 
 substance of alone need be proved, 824, 825. 
 See title Onus Pi'obandi. 
 
 JEW, 
 how sworn as a witness, 19, 20. 
 formerly considered inadmissible, 19. 
 JOINT CONTRACTORS, 
 admissions by one of, their effect, 491, 493. 
 rnle in this country 491. 
 where only one of several signs, 530, 048. 
 JOINT DEBTORS, 
 effect of admissions by, 496-602. 
 admission by one of several partners. 498, 500. 
 
 must relate to joint debt, 502. 
 admission by one partner does not bind the others 
 after dissolution of firm, 600. 
 JOINT WRONGDOERS, 
 admissions by one of, when evidence against the 
 rest, 187, 206, 3iO. 
 JUDGE 
 to decide as to admissibility of evidence, 3. 
 and on preliminary questions necessary to the 
 decision, 8-6, 
 
 though it involve point in issue, 6, 7. 
 cannot give evidence unless sworn as witness, 15. 
 JUDGMENTS. DECREES, &o. 
 by default. See title Default. 
 when admissible as reputation, 238. 
 
 on mo warranto, when, 288. 
 of tribunal without authority, inadmissible as, 
 
 339 241 
 on demurrer. See tlt\e Demurrer. ' 
 
781 
 
 JUDGMENTS, DECREES, &c., cmtimied. 
 date of need not be proved as laid, 862, 873. 
 presumed paid, from lapse of time, 683. 
 when repelled, 682, 690, 691. 
 bill to enforce, when barred by lapse of time, 690, 
 
 691, 701. 
 JUDICIAL NOTICE, 
 court will take, of matters of government, 619. 
 
 of its acts and ofacers, 619, 820. 
 proclamations, statutes, seal, sessions of courts, 
 
 legislatures, &c., 619-624. 
 proceedings and practice of court, 622. 
 
 seal of a foreign state, 619. 
 almanac, civil divisions of state, &c., 626. 
 not of foreign lands or laws of another state, 62.3. 
 value of coin of realm, 626. 
 weights and measures, 626. 
 JURISDICTION, 
 presumptions as to, 610, 611, 823. 
 not presumed of inferior courts, 611, 823. 
 facts conferring, not presumed, 611, 822. 
 legal action presumed, 611. 
 JUROR, competent to prove what, 7. 
 JURY, 
 not to decide on questions of competency, 4, 5. 
 may not decide questions of law in criminal cases, 
 
 4,6. 
 
 finding o'f, under commission, when admissible as 
 
 reputation, 237-239. 
 
 JUETMAN, 
 
 cannot give evidence, unless sworn as witness, 15. 
 
 having peculiar knowledge on subject, should be 
 
 sworn, 16. 
 as to what matters, may testify, 168. 
 grand juryman may be called upon to testify, as 
 to what matters, 166, 167. 
 JUSTICES OF PEACE, 
 orders of, when admissible as reputation, 242. 
 appointment as, when presumed, 592, 593. 
 
 K. 
 
 KINDRED, 
 general hearsay, admissible to prove, 250. 
 See title Hearsay, ii. 
 KING. See title Sovereign. 
 
 accession of, to be noticed judicially, 619. 
 KINGDOM, 
 division of, judicially noticed, 625. 
 so as to divisions of state, 625. 
 KNOWLEDGE, 
 presumption of. See title I^emmptions, tSx. 
 degree of in declarant, in matters of reputation as 
 to eutries against interest, 3U5, 333, 334. 
 made in course of business, 356, 363. 
 when proof of other transactions to show, 601, 
 
 LANDLORD. See titles Tenant, Lease. 
 LARCENY, 
 
 owner, bailee, &c., to be called to prove non- 
 consent, when, 574, 634, 636. 
 
 when other testimony admissible, 574, 635. 
 
 proof of, by finding property in prisoner's cus- 
 tody, 634-638. 
 when this is suf^cient, 636. 
 by finding it in prisoner's house, 6-34-638. 
 or on premises occupied by him, 637. 
 
 presumption, how repelled, 636, 637, 638. 
 and how supported, 636, 637. 
 
 weight of good character on the question, 762, 763. 
 
 prosecution for receiving stolen goods, 767. 
 with knowledge, 601, 767. 
 
 proof of identity of properny stolen, 574. 
 
 buying goods at reduced price, evidence of know- 
 ledge, 601. 
 so secreting them, 601. 603. 
 
 stolen in one place and carried to another, 890, 891 . 
 LAW, 
 
 presumptions of, what laws judicially noticed, 
 
 620, 621. 
 LEASE, 
 
 in writing, must be produced, to prove terms of 
 tenancy, 576-578. 
 
 80, an agreement for lease, 576. 
 
 rent due on, presumed paid, when, 673, 682. 
 
 covenant to renew, when waived, 698. 
 
 surrender presumed, when, 699. 
 
 variance from allegation of, 733, 861. 
 
 ancient, admissible as hearsay, 235. 
 of possession, 281, 28i. 
 when to be produced, 428. 
 
 LEDGER-BOOK, 
 
 of Ecclesiastical Court, admissible to prove rela- 
 tionship in matters of pedigree, 2,58. 
 LEGAL EFFECT, 
 
 of contract, admission of not admissible, 442. 
 LEGITIMACY, 
 presumptions as to, 630. 
 
 recent decisions, 630, 631. 
 wife's, husband's declarations as to, admissible as 
 matters of pedigree, 269-271. 
 LETTERS, 
 admissible as proof of information given or 
 
 received, 170. 
 of defendant, admissible to show good faith, 171. 
 found in possession of person, when admissible to 
 
 show his sanity, 171, 172. 
 from husband or wife, when admissible in crim. 
 
 con , 91, 92, 181, 183. 
 admissible in action for wife's board, 186. 
 written by garnishee, 185. 
 enclosing note, 186. 
 to prove oankruptcy, 205. 
 written by conspirators, 206, 207. 
 not in general admissible for the writer, 403. 
 
 neither for nor against his principal, 405. 
 referred to in an admission, to be produced, 412, 
 
 413. 
 correspondence by, 416. 417. 
 the not answering a letter, not an admission, 439, 
 
 444. 
 by agent, not received in proof of contract, 514. 
 where one of a series is proved, whole need not be, 
 
 416. 
 correspondence by, proof of, 416, 417. 
 unanswered, when not taken as an admission, 
 
 430. 
 cross-examination as to contents of, 575, 676. 
 date of when to be proved, 92. 
 answer, when to be produced, 416, 417. 
 of agent, when admissible, 614. 
 
 when adopted by principal, 516. 
 addressed to prisoner, not evidence against him, 
 
 183, 
 letter referred to in interrogatories, must be pro- 
 duced when, 412. 
 so, of other papers, 413. 
 reseived, as an admission, when, 425. 
 letter, how proved, 412. 
 LIBEL, 
 publication of, presumed by sale from servant, 
 
 633. 
 proof of malice, 601, 632. 
 damages in an action of, 820. 
 charge of composing, sustained by proof of pub- 
 lishing only, 830. 
 amendment as to statement of, 885. 
 proof of libel upon defendant by plaintifl' inad- 
 missible, when, 748. 
 an obscure phrase may be explained, 830. 
 LICENSE, 
 ancient, of lord, admissible, when, 282. 
 when presumed, 674. 
 selling or practicing without, 822. 
 LIEN, 
 of vendor, for purchase money lost by delay, 684, 
 
 685. 
 of attorney for costs, when, 701. 
 LIFE, 
 presumed to continue, 640. 
 presumption of survivorship where'several perish 
 together, 641, 264, 265. 
 LIFEINTBEEST, 
 
 when declarations as to, admissible, 313, 813. 
 LIGHTS, ANCIENT, 
 established by user. 649, 650. 
 right to ancient lights, origin of, 649, 651. 
 LIMITATION, 
 of the admissibility of evidence, 3-9. 
 rules as to established, how. 3. 
 LIMITATIONS, STATUTE OP, 
 admission after suit, admissible, 491. 
 admission by one executor or administrator 
 effect of, as a jainst the others, 497, 502. 
 by one of several partners, eflfect of, 491-500. 
 effect of, after dissolution, 491, 492 
 by one of several joint debtors, 493, 499, 601, 502. 
 indorsement of part payment on bond or note 
 effect of, 364-369. ' 
 
 newpromise or acknowledgment in writing, 602. 
 
 when sufficient and when not, 503. 
 of actions on sealed instruments, 6£^. 
 
 Vol. I. 
 
782 
 
 IKDEX. 
 
 LIMITATIONS, STATUTE 0¥—cmtmvM. 
 for annuities, 683. 
 on simple contracts, 682. 
 for legacies or distributiTC shares, 683. 
 
 pleading statute, 701, 702. 
 rule as to m equitj', 679-703. 
 statute of New York, 702. 
 analogous rule in equity causes, 679, et seq. 
 admission by one of two jointly liable, effect of, 
 
 493. 
 see same title, "Vols, n and III. 
 LIQUIDATION OF DAMAGES, 
 settlement presumed, from giving bond and mort- 
 gage, 675. 
 
 from giving note, 675. 
 from other acts, 675, 676. 
 LIS MOTA, 
 rule as to, 345, 246, 247. 
 definition of, 245, 259. 
 
 renders declarations in matters of general interest 
 and pedigree, inadmissible, when, 276-280. 
 rule as held in this country, 259. 
 LOAN, 
 not presumed from act of paying money, 675 
 nor from accepting and paying check, 604, 675. 
 nor from paying money order, 675. 
 otherwise, as to order for goods, 675. 
 LONDON, 
 customs of, when judicially noticed, 621. 
 seal of, 624. 
 LOSS OF PAPERS, 
 search for, 388, 679. 
 
 when secondary evidence may be given, 567, 579. 
 LOST PAPEKS, 
 proof of loss, 314, 315, 596. 
 proof of the paper itself, 215, 334, 335. 
 proof of its contents, 334, 335. 
 when provable by secondary evidence, 596, 597. 
 See Secondary Evidence. 
 LOSS OP SHIP, 
 
 when presumed, 643. 
 LOST SECURITIES, 
 
 secondary evidence of, 596. 
 LUNATICS, 
 who are such, 9, 10. 
 when incompetent as witnesses, 10. 
 
 m:. 
 
 MACHINE, 
 
 copy made by, not admissible as original, 581. 
 MAGISTRATE, 
 preliminary inquiry before, as to state of intellect 
 
 or religious knowledge of witness, 11-13, 20. 
 acquiescence in statements by or before not in- 
 
 fijrred, 445, 446. 
 confessions made before, 446, 5.34, 535. 
 See title Hearsay, viii, ix. 
 remarks made by accused, when before, 446, 534. 
 information or d.epositions taken before when 
 admissible. See Depodtions, Maiicmia Prosecu- 
 tions, 
 MAHOMETAN, 
 
 how sworn as witness, 17. 
 MALICE, 
 presumption of, 633, 633. 
 now proved and disproved, 633. 
 In criminal cases, 7S6, et sea., 835. 
 MALICIOUS PROSECUTION, 
 action for, deposition of defendant before magis- 
 trate admissible, 632, 633. 
 evidence of plaintiff's character, how far admis- 
 sible, 761. 
 evidence in actions for, 825, 836. 
 MALICIOUS SHOOTING, 
 on indictment for, previous shooting admissible 
 evidence, 772. 
 MANOR, 
 existence or custom of, provable by hearsay, 218, 
 
 et seq. 
 documents relating to, when admissible as repu- 
 tation, 235. 
 MANSLAUGHTER, 
 prisoner may be convicted of an indictment for 
 
 murder, 831-833. 
 what BuiBoient evidence of assault, with intent to 
 commit, 832, 838. 
 MAP, 
 when admissible as reputation on question of 
 
 boundary, 236. y 
 
 annexed to ancient deed, evidence of possession, 
 
 TAKP— continued. 
 
 otherwise, if not connected with acts of owner- 
 ship, 282, 283. 
 MARRIAGE, 
 
 how far admissions as to, admissible in prosecu- 
 tions for bigamy, 452, 453. 
 
 on indictment for bigamy, not provable by first 
 husband or wife, 96. 
 
 how alleged and proved in such cases, 96. 
 
 declaration of parson as to, when admissible in 
 nlatter of pedigree, 373, 374. 
 
 proof of, what amounts to, 589. 
 
 fact of, how proved, 631, 632. 
 
 presumption as to, 455, 465, 631. 
 
 when strict proof required. 631, 632. 
 
 admission of, sufficient in civil cases, 455, 465. 
 
 admission with cohabitation, 251. 
 MARRIED WOMAN. See title Susbandand Wife. 
 MASTER AND SERVANT. See same title. Vol. 
 
 III. 
 MATERIAL AVERMENTS, 
 
 only such need be proved, 824, 825. 
 
 rule illustrated, in civil cases, 825, 830. 
 in criminal cases, 830-835. 
 
 what are material and immaterial in civil cases, 
 
 836-843. 
 in indictments, 843-845. 
 
 in actions for negligence, 825. 
 
 in actions to recover money, 825, 
 
 variances under present practice, 835. 
 
 in action of covenant, waste, 826. ^ 
 
 against sheriff for escape, 826, 837. 
 
 in an action for slander, 837. 
 
 in action of replevin, 838. 
 MEASURES, LEGAL, 
 
 judicially noticed, 633. 
 MEDICAL EVIDENCE, 
 
 as to health, injuries, &c., 182-184. 
 MEDICAL MEN, 
 
 communications to, not privileged, 136. 
 except by statute, 135-138. 
 
 opinion of, when admissible, 778, 781. 
 MMORANDUM, 
 
 to refresh memory of witness, when allowed, 586. 
 
 in giving testimony of witness on former trial, 
 
 395-400. 
 
 not evidence, per se, 400, 585. 
 
 when to be produced, 395, et sea., 586. 
 MEMORIAL, 
 
 when admissible to prove registered deed, 580. 
 MERCHANT'S BOOK. Se^ Sock of Account. 
 MIDWIFE, 
 
 declaration by, inadmissible in matters of pedi- 
 gree, 373. 
 MILL PRIVILEGES, 
 
 acquired by user, 653-659. 
 
 priority of use, 654, 655. 
 
 recent decisions, 656. 
 
 use of water above and below, 653-655. 
 MINER'S JURY, 
 
 when referred to, decision binding, 517. 
 MISDEMEANOR, 
 
 amendments in, when allowed, 873 ,893, 893. 
 See Depositions, Confessions. 
 MISDESCRIPTION, 
 
 of witness in treason, objection when taken, 97. 
 MISTAKE 
 
 offact, admisBionmade under, effect of, 463, 463, 
 
 oflaw, 402, 
 MODUS, 
 
 when reputation admissible to prove, 2*i8. 
 
 not admissible as to particular payment, 233. 
 otherwise as to customary payment, 233. 
 MONEY, 
 
 what deemed such, 825. 
 
 allegation of payment in, how supported, 825. 
 
 actions to recover, 825. 
 MORAVIAN, 
 
 affirmation by, of same effect as oath, 31. 
 MORTGAGE, 
 
 Mho may purchase on foreclosure, 693. 
 right of parties on, 693. 
 so of sureties, 693. 
 
 presumption of merger, 608. 
 of payment or purOiase, 608, 609. 
 
 presumption of payment from lapse of time, 678, 
 
 679. 
 
 presumptive bar may be rebutted, 681, 682. 
 
 See title Presumptions and Presumptive Evidence. 
 MURDER, 
 
 previous threats, &c., to show malice, 683, 778. 
 
INDEX. 
 
 789 
 
 MURDER— (XWittnMStf. 
 of officers, proof of Ms authority when requisite, 
 
 888, 883. 
 on a charge of, prisoner may he convicted of man- 
 slaughter, ffll. 
 when variance as to manner of death, material, 
 
 831. 
 as to charging party as principal or accessory, 
 
 831, 83a. 
 dying declarations of third party inadmissihle, 
 
 287. 
 presumptive evidence of, 704, et seq, 
 carpus delicti to he clearly proved, 616, 710, 711. 
 force of circumstantial evidence, 613-617, 736, 
 
 737. 
 effect of prisoner's omission to account for his 
 whereabouts, 615. 
 or for the possession wf money, &c., 615. 
 prominent examples, 704, et seq, 
 strong or violent presumptions, 601, 613. 
 rehutting circumstances, 615. 
 badges of guilt, 601, 614, et seq. 
 weight of evidence, credibility, 714-731. 
 See title Pregumptione and Presumptive Evidenee. 
 
 N. 
 NAME, 
 
 answering to, admission off437. 
 
 by putting bail in, 459. 
 
 or assuming the name, 460. 
 NATURALIZATION, 
 
 record of, conclusive of, 581. 
 
 acts of citizenship, evidence of, when, 666. 
 NEGATrVF, 
 
 proof of, wnen necessary, 811-812, 816, 821. 
 
 S roof of, when not necessary, 816-820. 
 est proof of, 821. 
 a charge of breach of duty, must be proved, 812 
 
 et seq. 
 as to a breach of contract or covenant, 815, et seq. 
 where an offense involves negative, 830 et seq. 
 a negative fact alleged, 828. 
 
 See title Omis Probandi. 
 NEGLIGENCE, 
 when presumed, 633, 812. 
 when not presumed, 605, 812. 
 proved against carrier, 811, 812. 
 against other persons, 811, 812. 
 causing death, 811, 812. 
 variance in proof of, effect of, 826. 
 in action for. what payment into court admits, 792. 
 NEIGHBORHOOD, 
 declaration of residents in, when admissible as 
 
 reputation, 241. 
 in cases of riot, 207. 
 NEWSPAPER, 
 contents of, how proved, 580. 
 when notice to insurers, 602. 
 NOLLE PB OSBQ UI, 
 effect of, as to competency of defendant as wit- 
 ness in criminal cases, 108. See Defendant and 
 Accomplice^. 
 NOLO CifNTMNDEBE, 
 
 plea of. not evidence in civil suit, 461. 
 NON-ACCESS, 
 proved as matter of reputation, when, 250, 251. 
 neither husband nor wife competent to prove, 87, 
 
 95. 
 but wife may prove the fact of criminal inter- 
 course, 87. 
 
 and state with whom, 87. 
 NON-CEPIT, 
 
 plea of, what it admits, 747. 
 NON EST PACTUM. 
 
 plea of, what it admits, 746. 
 TON-JOINDER, See title Abatement. 
 NON-SUIT, 
 
 when granted, 712. 
 NON-TENURE, 
 to avowry for rent, admits seizin and demise, 
 when. 748. 
 NOTARY, 
 his certificate of protest, evidence for himself, as 
 
 purchaser, 364. 
 entries by, evidence, when, 349-361. 
 protest attested, wheli evidence, 586. 
 NOTE. See titles BiU of Exchange. Indorsement, 
 
 Promissory Note. See also Vol. m. 
 NOTICE, 
 of dishonor, admitted by promise to pay 451. 
 of special matter, appended to plea, 739, 744, etseq. 
 
 'NOTICE— continued. 
 how construed, 745. 
 effect of, by way of admission, 745. 
 to be in writing, when, 745. 
 form and service of, 745. 
 negative of, when to be established, 815. 
 generally may be proved by secondary evidence, 
 
 671, 637, 596. 
 to quit, acquiescence in, when proof of term of 
 
 tenancy, 443. 
 to admit documents, 503, 604. 
 NUISANCE, 
 admission of, in evidence on another trial, 451. 
 presumption as to, 634. 
 NUMBER OF WITNESSES, 
 court may limit, 712. 
 
 OATH, 
 evidence can only be given under sanctions of, 15. 
 
 16. 
 what it implies, 16-19. 
 
 form not material, if binding ifl conscience, 17^8. 
 taken by client may he proved by attorney 1677 
 admission upon, effect of, 432. 
 
 when admissible as confession, 660, 563. 
 of secrecy, official, how understood, 133. 
 of office, how proved, 133. 
 OBJECTION, 
 to admissibility of witness, when and how to be 
 
 taken, 97-104. 
 witness may be shown incompetent on his voir 
 
 dire, 99-102. 
 or by independent testimony, or in both ways, 98, 
 
 101. 
 what amounts to a waiver of, 98, 99, 102-104. 
 must be promptly taken, 99, 100, 102. 
 may produce evidence to show witness incompe- 
 tent, 98, 101. 
 but not to contradict witness sworn on his voir 
 
 dire, 98, 101, 103. 
 to admissibility of document, not precluded by 
 order to admit, 605, 506. 
 OFFER OF COMPROMISE, 
 may be proved, for what purpose, 431. 
 is as a general rule inadmissible, 426-431. 
 OFFER OF EVIDENCE, 
 
 note ]96,]p. 733, 737. 
 OFFICERS^ 
 appointment of, how shown, 692-594. 
 presumptions as to official acts, 604. 
 
 and from, 642. 
 of corporation, who are, proved hy acts and repu- 
 tation, 593, 59S. 
 OFFICIAL ACTS, 
 presumptions in favor of, 604, 605, 642. 
 
 and of official character from, 642. 
 action for taking property, 814, 815. 
 OMISSION, 
 
 to sign by one of parties to contract, 520. 
 OMN& BITE A CTA, 
 
 E resumptions as to, 610, 611, 642, et seq. 
 ee title Presumptions and Presumptive Evidence. 
 ONUS PMOBANDI, 
 lies on party asserting affirmative, 809, 810. 
 usual test, for determining where the burden lies 
 > 810. 
 
 plaintiff proves his complaint or declaration, 810- 
 ^ , ^ 812. 
 
 and defendant proves affirmative matter in his 
 
 plea or answer, 810-812. 
 cases illustrating rule, 810-812. 
 recent decisions, 811, 812. 
 surest test, for determining where burden lies, 812. 
 where one party charges the othei? with breach of 
 duty, involving a negative, must prove alle- 
 gation, 812, 813. 
 in criminal cases, application of rule, 813, 814, 815. 
 
 and in civil cases, 813, 814, 816. 
 not reading the thirty-nine articles, 813, 815. 
 putting combustible articles on board vessel 
 
 without giving notice, 815. 
 breach of contract, 816. ' 
 
 allegation that work was not performed in 
 proper manner, 815. 
 not performed at all, 815. A 
 breach of covenant, stated negatively, 815, 816. 
 negative allegations that must be proved, 815 
 
 ,.. ^ 816- 
 
 ownership of vessel, m action for loss by barra- 
 try, 816. 
 
^4 
 
 INDEX. 
 
 ONUS PBOBANDI— continued. 
 
 not called upon to prove a negative, when, 
 
 816-820. 
 orcTer and burden of proof, 817-819. 
 which party to begin. 817-820. 
 right of plaintifi'to begin, 817. 
 when the Btate of the pleadings gives this 
 
 right to the defendant, 818, 810. 
 when a matter of discretion with the court, 
 
 819, sao. 
 
 recent decisions, 819, 830. 
 value given for a bill or note, 820. 
 where offense, involving negative, created by 
 statute, 820. 
 prosecution for doing an act without consent of 
 owner, 821. 
 where fact peculiarly within knowledge of party, 
 
 821, 822. 
 want of qualification under game laws, 821.' 
 jurisdiction, 822. 
 presumed in favor of courts of general jurisdic- 
 , tion, 82-2. 
 « not presumed aito inferior courts, 832. 
 
 <|reaumption in favor of freedom, when, 822. 
 wf en party notbouudto prove a negative, 823, 823. 
 fact alleged in defense, 828. 
 
 infancy, 823. 
 consent of parents in prosecution for bigamy, 823, 
 
 824. 
 illustration of general rule, placing the onw on 
 party asserting affirmative, 816, 820. 
 on the party asserting Iraud or guilt, 813. 
 neglect of duty, 814. 
 indebtedness, 810, 811. 
 that plaintiff must prove negative alleged, 815, 
 
 816. 
 degree of proof required, 821-823. 
 burden of proof on question of jurisdiction, 823. 
 of freedom, 823. 
 of forfeiture, 823. 
 
 of Erenuinenesa of instrument, 810. 
 of title, 810. 
 OPINION, 
 not founded on statement of others, wheu admis- 
 sible as reputation, 345. 
 admissibility of, generally, 778-784. 
 in general, opinions of witness not admissible, 778. 
 of experts, received on questions of sdence and 
 
 skill, 778. , . \ 
 
 of medical men, as to wounds, health, cause of 
 death, &c , 778, 779. 
 on a question of sanity, 779, 735. 
 engineers, shipbuilders, architects, 779. 
 on subjects connected with their business, 779. 
 illustrations of the rule, 779-781. 
 confined to matters of science and skill, 780-784. 
 
 received on questions of forgery, wheu, 730. 
 not received as to legal or moral obligation, 780, 781 . 
 of brokers and underwriters, 781_, 783, 783. 
 nautical witness in case of collision, 7.S4. 
 handwriting, foreign laws, 784. 
 received to show value, 785. 
 not received on the very point in issue, 785. 
 e. ,7. the damages sustained, 785, 
 involving matter of law, 785. 
 recent decisions, showing who are regarded as 
 experts, and what questions may be asked, 785, 
 
 780. 
 See title Preemptions, &c. 
 ORDER, 
 to pay money in hands of drawee, 
 proof of payment, 676, 670. 
 action on order to pay, 824. 
 not of money loaned, 675, 676. 
 for goods, evidence of delivery, wheu, 675. 
 interlocutory, inadmissible as reputation, 239. 
 judge's admissions under, 503. 
 
 See title Hearsay, vii, a. 
 effect of disobedience to, 506, B07. 
 by whom to bo made, 507. 
 in chancery, how proved, 583. 
 ORIGINALS. See title JDuplioate Oriqiimls. 
 OTHER CONTRACTS, 
 when may be proved, 748. 
 and wheu inadmissible, 748. 
 OTHER TRAMSACTIONS, 
 to show knowledge, 750-753. 
 
 PAPERS, 
 printed, admissible as original, 580, 
 
 PABDON, 
 accomplice, when entitled to, 107. 
 his equitable claim to, cannot be pleaded, 170. 
 may be ground of postponing^ tri^, 107. 
 promise of. effect on the admissibility of his con- 
 fession, 109, 547. 
 effect of a pardon, 22-24. 
 PAROX, EVIDENCE. See Vol. H. 
 PARISH, 
 
 certificate, how far conclusive, 478. 
 PARISHIONERS, 
 
 rated, admissions by, when receivable, 487. 
 PARISH REGISTER, 
 of marriages required to be kept, B89. 
 fact of marriage favorable, by other evidence, how, 
 
 689. 
 PAELIAMENT, 
 debates in, privileged ftem disclosure, 165 
 proceedings in, how far judicially noticed, 620. 
 PACTICiaARS, 
 
 of set-off, effect of, 800, 809. 
 PARTICULARS OF DEMAND, 
 effect of as admission, 799 et seq. 
 credits given in. 800, construction of bill, 801-803. 
 errors in bill, 804, when sufScient, 805-808. 
 may recover for items not included in, when, 808. 
 PARTIES IN INTEREST, 
 
 persons in whose belialf suit brought or defended, 
 
 66-76. 
 or for whose immediate benefit, 67, 68. 
 decisions in relation to 68-76. 
 decisions under code of N. T., 67, 68, 71, 73, 74, 75. 
 what interest disqualifies a witness under statute, 
 
 68, H9. 
 persons substantially interested as parties, 71-76. 
 PARTIES TO ACTION, 
 incompetent as witnesses at common law, 29^4. 
 ground of their incompetency, 29, 30. 
 cases illustrating the doctrine, 31-37. 
 the general rule applies to nominal parties, 29-33. 
 and to parties suing or defending as trustees, 29, 
 
 35, 41, 42, 
 old rule that party is not compellable to testify 
 
 against himself, 56, 57, 
 real parties in interest, 66-76. 
 who considered such, letting in their admissions, 
 
 486 et seq. 
 party suing for benefit of another, 481, 484, 485. 
 attorney may prove who is real party, 131, 143, 
 
 157. 
 to criminal proc^ ediuga, as prosecutor, admissible 
 
 as witness, 58, 59. 
 when inadmissible, at common law, 60-63. 
 See titles AdmUmons. Husband and Wife, and Vol. 
 Ill, for the common-law rule as to competency, 
 parties competent, of necessity, when, 40. 
 competent to prove loss of papers, 32. 
 PARSES TO CONTRACTS, 
 may prove them illegal, 119, 128. 
 may prove them fraudulent, 129. 
 PARTIES TO INSTRUMENTS, 
 allowed to impeach their validity, when, 119-129. 
 transferring a note as business paper, 119. 
 making or transferring negotiable paper, 119-127. 
 may show subsequent facta impeaching the paper, 
 
 120-126. 
 PARTNER, 
 effect of person holding; himself out as, 466. 
 admissions by, how far evidence against others, 
 wheu retired, 493, et seq. 
 when party to suit, 495. 
 when not a party, 498 
 as to transactions before partnership, BOO. 
 as to matters not relating to partnership trans- 
 actions, BOO. 
 books of firm evidence against, 449. 
 rule in this country, in regard to admissions by 
 one partner after dissolution, 491, 498, 600. 
 PARTNERSHIP, 
 signing notice of dissolution, evidence of, 435. 
 reputation, evidence of, 388, 389. 
 presumed to continue, 640. 
 PATENTS, 
 presumed regularly granted, how far, 604, 605, 
 
 610, 611. 
 PAUPER, 
 
 relief to, how far admission of settlement, 451. 
 PAYMENT, 
 when necessary as confirmatory proof of docu- 
 ment, 283, 284. 
 I of consideration money, 471, 472. See title Deed, 
 
785 
 
 PAYMENT— coniirtwerf. ' 
 
 part, by party to negotiable instrument, 601, 602. 
 
 by partner, 502. 
 must relate to joint debt, when. 502. 
 preanmption of payment, 675, 676. 
 of whole Bnm stated, need not be proved, 830. 
 
 of tender, 830. 
 plea of, in assnmpsit, as an admission, 747. 
 
 in an action on award, 747. 
 
 in suit on judgment 747. 
 
 in suit on bond, 746, 747. 
 plea of payment, how supported, 675, 825. 
 evidence of payment, 675, 676. 
 as to presumption of, see title Presumptions and 
 
 Presumptive Evidence. 
 PAYMENT INTO COUET, 
 effect of as an admission, 788-792. 
 admits plaintiff's calling, when alleged, 460. 
 effect or, as an estoppel, 789, 790. 
 
 of summons for leave to pay money in, 791, 793. 
 PEDIGREE, 
 as to admissibility of hearsay in cases of, 248-281. 
 hearsay statements of deceased persons admitted 
 
 in proof of, 243. 
 
 in proof of descents, identity, &c., 248, 249. 
 affidavits, depositions, &c., in proof of, 249. 
 
 entries in family bible, 249, 250, 255, 
 what are matters ofp^igree, 250, 
 
 declarations when admitted, and when not, 251, 
 
 252. 
 settlement, domicile, marriage, &c., 251, 252, 254. 
 
 hearsay not received to prove infancy or place 
 of birth, 252, 253. 
 admitted to show time ; entries, &c., 252, 253. 
 
 not to show settlement or non-access, 254, 255. 
 entries and inscriptions, 255. 260, 263, 265. 
 
 not admissible after claim made, 255, 256, 258. 
 family correspondence received, 256. 
 
 recitals in family deeds, 257, 270. 
 
 and descriptions in willls, 258. 
 
 in answers and depositions, 258. 
 not admissible if made post litem motam, 258, 259, 
 
 276. 
 eneravingB on rings, charts of pedigree, &c., 260, 
 
 261, 262. 
 inscriptions on monuments and tombstones, 263- 
 
 265. 
 
 repute in family, 263, 264. 
 
 register of burials, 264. 
 announcement in newspapers not proof of death, 
 
 264. 
 
 proved by circumstances, 264, 265. 
 
 sailing in vessel not heard from, 264, 265. 
 
 armonal bearings, 266. ^ 
 
 conduct or treatment in family, 267. 
 declaration upon declaration, 268. 
 
 inquisitions post mortem, 269. 
 hearsay received under certain qualifications, 269, 
 
 270. 
 must come from parties having requisite know- 
 ledge, 269, 270. 
 from persons connected with the family, 270, 272. 
 
 principle of limitation, 271. 
 not received coming from an illegitimate, 272 
 
 declarations coming from other persona, 273. 
 
 relationship of declarant must be proved, 275. 
 declarations post litem, not evidence. 276-279, 284. 
 
 DOr when made in contemplation of suit, 279- 
 
 280. 
 PEER, 
 
 cannot give evidence except on oath, 15. 
 PERAMBULATIONS, 
 hearsay as to, admissible on questions of public 
 
 boundaries, 234. 
 
 otherwise as to entries of, 235. 
 PERJURY, 
 dying declarations inadmissible as to, 287. 
 amendment, when allowed in indictment, 875. 
 proof of malice, to show corrupt swearing, 752. 
 conviction of, incapacitates witness, 23. 
 proof in support of indictment for, 834, 835. 
 PETITIONING CREDITOR, 
 when bound by proceedings in bankruptcy, 464. 
 admissions by, when admissible, 490. 
 PETIT TREASON, 
 
 on charge of, may be convicted of murder, 833. 
 PHYSICIAN, 
 communications to, 136-138. 
 opinions by, when, 778-781. 
 PLACE, 
 variance in proof from allegation. 
 
 'PhAC'E— continued. 
 when material, 857. 
 rule in criminal cases, 890. 
 PLEADINGS. See as to admissions by. Admissions. 
 pleading over, as an admission, 793-799. 
 proof must be according to, 824, 825. 
 See Presumptions, Jnc. 
 PLEDGE, 
 sale of same, 693. 
 pledgee may purchase, 693. 
 so may the mortgagee, 693. 
 rights of sureties on a foreclosure, 693. 
 POLICY OF INSURANCE, 
 adjustment on, not conclusive against under- 
 writer, 478. 
 admission by person interested in, 486. 
 in action on, what admitted by payment into 
 court, 789. 
 PORTS, 
 
 extent of, judicially noticed, 626. 
 POSSESSION, 
 prima facie evidence of title, 603. 
 of real property, 646, 647. 
 presumjjtions from, 646-648. 
 m descriptive allegations, 857, 858. 
 or personal property, 646, <)47, et seq. 
 adverse possession, presumption from, 650, et 
 seq, 
 when ancient document, evidence of, 281, 282. 
 under lease, when necessary to be proved, 283. 
 of stolen property, presumption from, 634^638. 
 of other stolen articles, admissible when, 767-775. 
 of forged or counterfeit money, admissible when, 
 
 768. 
 of note of maker, presumption from, 676. 
 of bill by acceptor, what evidence of, 676. 
 of an order for goods, presumption from, 675. 
 POST, 
 
 presumption from course of, 602. 
 POST LITEM MOTAM, 
 
 declarations inadmissible, 245. 
 POSTMARK, 
 
 opinion as to genuineness of, admissible, 780. 
 PRESCRIPTION, 
 presumption as to, 629. 
 
 statement of, effect of variance in proof, 837, 859. 
 proper allegations of, and proof, 733, 837, 
 
 PRESCRIPTIVE RIGHTS, 
 
 whether repatation admissible of, 329-231. 
 
 variance in statement of, 837, 859. 
 PRESENTATION, 
 
 reputation inadmissible to prove right of, 232. 
 PRESENTMENT, 
 
 by homage, inadmissible as reputation when made 
 
 PEESUMPTIONS AND PKESUMPTIVE EVI- 
 DENCE, 
 applied to acts of officers of coi-porationa, 598. 
 definition of presumptive evidence, 598. 
 of law and of fact, 598, 599, 618. 
 rules of, applicable to corporations, 598. 
 ground of all presumptions, 598, 599. 
 m proof of criminal conversation, and in actions 
 
 for divorce, 599, 600. 
 the law presumes a man intends natural result of 
 
 Ma act, 601. 
 held in civil and criminal cases, 601. 
 that he acts with motive in seeking opportunity 
 to commit a crime, 601, et Beq. 
 in flight, and in concealing evidence of hie" 
 guilt, 601, 602. 
 in secreting stolen goods, or counterfeit money, 
 
 601, 602. 
 where obligor obtains and destroys his bond. 
 
 602. 
 or other instruments, 602. 
 where a party conceals written evidence, 602. 
 long acquiescence in exercise of adverse right, 
 
 602, 609. 
 good character, strong presumption in favor of 
 
 accused, 603. 
 
 bad, presumed to continue, 603. 
 as to course of trade and the like, 602. 
 ftom state of society, color as indicating slavery, 
 
 603. 
 irom a man's permitting his friend to forge his 
 
 name repeatedly, 603. 
 from particular custom of persons, 603. 
 from possession of property, 603. 
 
 that a fact once established continues, 603, 604. 
 
786 
 
 INDEX. 
 
 PRESUMPTIVB EVIDENCE— continued, 
 in favor of natural afFection, as to marriage gifts, 
 
 &c., 603. 
 in favor of sanity, till settled insanity be proved, 
 
 604. 
 recent case, 604. 
 that a child within age of discretion did not act 
 
 with guilty Knowledge, 604. 
 that wife acts under coercion in committing 
 
 crimes, when, 604. 
 that one who pays is indebted, 604. 
 gift not presumed, 604. 
 that drawee of check paying it did so with 
 
 funds, 604. 
 that every one acts reasonably and performs Ms 
 duty, 604. 
 as to official acts, 604. 605. 
 as to unofflcia], private acts, 605. 
 presumption of innocence to be overcome, 605. 
 against breach of positive law, 606. 
 
 of death in case of remarriage, 606. 
 that a man has done what the law requires, when, 
 
 606. 
 that an interlineation or erasure was made oefore 
 execution, 606, 607. 
 as to rule in case of negotiable paper, 606. 
 
 appeal bonds, and cases of suspicion, 606, 607. 
 cases cited and commented upon, 607. 
 fraud not presumed of a single act, 605, 607. 
 presumed from circumstances, 608. 
 voluntary conveyances, 608. 
 that men act according to their own interest, 608. 
 presumption repelled, 608. 
 m payment of mortgages and the like, 608, 609. 
 acquiescence in adverse enjoyment of right 
 by another, 609. 
 that a man adopts or accepts advantageous act, 
 offer, gift, bequest, devise, conveyance, &c., 
 
 609. 
 from nature and general incidents of property, 
 
 609. 
 as to mines, fisheries, boundaries, &c., 609, 610. 
 founded on dictates of prudence and discretion, in 
 conduct, 610. 
 in execution and delivery of papers, 610. 
 omnia prozsumuntur rite esse acta, as to jurisdic- 
 tion, 610, 611. 
 referable to the policy of the law, 611. 
 in respect to use of money borrowed on wife's 
 estate as security, 611, 612. 
 want of presumption on one side, effect of, 611, 612. 
 in case of pregnancy, 612. 
 shades of presumption^ 599, 612. 
 doctrine of civillaw m respect to, 612, 613. 
 when such as to be admissible, 612, 613. 
 admissible in criminal case, 613, 614. 
 circumstantial evidence, weight and force of, 
 
 614. 
 nature and kinds of circumstantial evidence. 
 
 614, 615, 
 failure to repel, strong presumption, 615. 
 natural or mechanical circumstances, showing 
 
 means and opportunity, 615. 
 posseBsion of stolen goods, &c., 615. 
 circumstances attending moral conduct, 615-617. 
 direct proof most convincing, dependent circum- 
 stances, 617. 
 presumptions of law, 618 
 I.— Of matters- judicially noticed, 618. 
 matters of government, 618. 
 accession of sovereign, 019. 
 London Gazette, proclamations, 619. 
 officers of government, 619. 
 articles of war, proceediuga in Parliament, 620. 
 existence of foreign states, state of war, 620. 
 public statutes, to be noticed by court, 620, 631. 
 
 and private in some of the states, 631. 
 general cuBtoms, when, 621. 
 
 customs of London, 621. 
 treaties with foreign governments, 631. 
 law of Ireland, 621. 
 
 ecclesiastical laws, civil and maritime, 621, 633. 
 proceedings of superior courts, &c., 622. 
 of courts of general jurisdiction, 623. 
 ■ not of courts of different jurisdiction, 023. 
 chancery, &c., 628. 
 sheriff's book, &c., 623. 
 loreign laws and customs, 623. 
 one state of Union does not notice laws of 
 another, 624, 
 late cases cited, 624. 
 
 PEESUMPTIVE BYID'EiNCE^cotitimied. 
 law of Scotland and the colonies, 633. 
 seals of superior courts, 624. 
 of London, 624. 
 not of other corporations, 624. 
 DOr of inferior courts, 624. 
 required to be noticed by statute, 635. 
 .almanac, feasts, fasts, &c., to be noticed, 625. 
 division of kingdom into counties, 625. 
 not extent o^and boundaries of them, 625. 
 nor local situation of different places, 625. 
 nor divisions of county, 625. 
 ports ; river Thames, 626. 
 coin, weights, measures, &c., 616. 
 meaning of ^vords in general use, 626. 
 course of natural events, 626. 
 n.— Presumptions made by courts and juries, 626. 
 of law and of facts, 626, 627. 
 effect of presu/mptive compared with, direct evi- 
 dence, 637. 
 different kinds of presumption, 638. 
 
 conclusive send prima facie^ 628, 629. 
 particular presumptions, 
 of position of parties as stated in ancient 
 
 documents, 281, 284. 
 of prescription, 629. 
 of unseawortbiness, 629. 
 of incompetency to commit crime, 639, 630. 
 of legitimacy, 630, 631. 
 
 when rebutted, 630, 631. 
 of marriage, 631. 
 
 strict proof required, when, 631, 633. 
 of intention to defraud, 633. 
 
 to commit waste, 633. 
 of malice, in publishing a libel, 632, 633. 
 actual malice may be rebutted, 632. . 
 to be proved in malicious prosecutions, 632, 
 
 633. 
 intention to defraud, when. 633. 
 inferred in cases of homicide, 633. 
 of negligence, 633. 
 of publication of libel, 633. 
 of knowledge as to sale of unwholesome food, 
 
 634. 
 as to nuisance, 634. ^ 
 
 of theft, from possession, 634-638. 
 tbe crime itself must be proved, 635. 
 after that, possession of stolen goods will 
 
 be sufficient to fix it on prisoner, 636. 
 circumstances of time and place to be con- 
 sidered. 636, 637. 
 goods stolen to be identified, 637. 
 presumption from, possession how removed, 
 
 638. 
 from fabrication or suppression of evidence, 
 
 639, 640. 
 contra spoliatorem, 602, 639. 
 of continuance of facte proved to exist, 640. 
 applied to goods delivered to carrier, 640. 
 
 continuance of life, 640, 264. 
 of death, when, 640, 641. 
 
 not as to exact time, 640, 641, 264. 
 of survivorship, where several perish together, 
 
 641. 
 of loss of ship, when, 642. 
 of appointment to office, 642. 
 
 See title Secondary/ Efidoice. 
 omnia Hte acta, 642, 
 as to official acts, 643. 
 proceedings in inferior courts, 642. 
 not applicable to convictious, 643. 
 not to give jurisdiction, 642, 043. 
 as to private acts of formal character, 643. 
 
 due execution of deed, 643. 
 negotiable security, 643, 644. *^^^ 
 
 presumption from date of document, 644. ^^ 
 not applicable to certain proceedings in bank- 
 
 ruptcYj 644. 
 nor to wife's letters in action for crim. con,, 
 
 644. 
 fi'om course of public office, 645. 
 custom-house entry, 645. 
 letter Hcntby post, 645, 
 of private oince, 645. 
 
 as to sending letters, notices, &c., 646. 
 as to underwriters, 645. 
 as to course of ©vents, 645, 602. 
 from possession, 646. 
 
 of real or personal property, 646, 647. 
 as to boundaries, 647, 648. 
 as to ownership of road, 647, 648. 
 
INDEX. 
 
 787 
 
 PREStrMPTIVl! BVIDENOE— conttTOSti. 
 of river, 647, 648. 
 of waste land, 647, 648. 
 as to nature of tenancy, 64S. 
 as to incorporeal rights. Toy statute, 648, 649. 
 as to ancient lights, right to by long use, 649j 650. 
 of public way, rights when presumed, 650. 
 of private way, presumed from user, 660. 
 evidence to rebut presumption, 650, 651^ 
 by non-user, 651. 
 from use of Incorporeal rights, 651, 662. 
 right of fishery In land of another from user, 
 
 652. 
 a grant presumed, when, 652. 
 right to open and work mines, cut timber, 
 
 &c., 653. 
 right to use running water, water powers, 
 
 663. 
 limitation of right, 653, 654. 
 priority of appropriation or user, effect of, 654, 
 
 655. 
 use of water above and below, 663-665. 
 from adverse enjoyment of water for twenty 
 years, 656. 
 
 recent decisions, 666, 668. 
 of land by flowing, 658. 
 presumption of grant, 656. 
 illustrations by adjudged cases, 666-659. 
 as to right of common use by diversion, 657. 
 right of use by adverse enjoyment, not to be 
 
 enlarged, 667. 
 right conditional, when, 658. 
 time of adverse enjoyment, how counted, 658. 
 not as against persons under disabilities, 
 
 658. 
 as infancy, coverture, &c., 658. 
 when encroachment is a nuisance, 658. 
 adverse enjoyment must be continuous, 658. 
 effect of twenty years non-user, 669. 
 from user, facilities for pews or vaults, 653, 659. 
 copyhold customs, 662. 
 liability to repair fences, 652. 
 as to act of Parliament, 659. 
 as to writ of ad quod damnum, 659. 
 of grant from crown, 660. 
 of act of incorporation, 660. 
 length of user to raise presumption of grant 
 
 of lands, 660. 
 principle on which presumption rests, 661. 
 various cases illustrating the subject, 662, 663. 
 
 conveyances presumed, 663, 664. 
 grant presumed to fill up a link in chain of 
 title, 665, 666. 
 presumption in favor of title, 665, 666. 
 of naturalization, 666. 
 of long continued possession, 667. 
 possession must be exclusive and adverse, 
 
 668, 669. 
 title is to be presumed as a fact by jury, 669. 
 deeds presumed in the execution of trusts, 669. 
 from trustee to cestui que trust, 670-673. 
 in respect to mortgages, 671. 
 conveyance presumed from vendor to vendee, 
 when, 671. 
 
 the purchase money having been paid, 671. 
 surrender of terms presumed, when 671, 672, 
 
 673. 
 
 whether a deed will be presumed when the 
 
 law provides for recording conveyances, 
 
 672. 
 conveyance presumed, when, late cases, 672. 
 of private conveyance in favor of party in pos- 
 session with equitable title and right, 672, 
 
 673. 
 to beneficial owner, to cestui que trust, 673, 
 
 673. 
 as to surrender of outstanding term, 673. 
 
 this presumption when restricted, 673, 674. 
 of license, 674. 
 of by-law, 674. 
 of payment, 675. 
 from mode of dealing, 675, 676. 
 statement of accounts, presumption from, 675. 
 from release, 675. 
 possession of note by maker, or of bond by 
 
 obligor, presumption from, 675. 
 giving bond and mortgage, presumption from, 
 
 675. 
 or promissory note, 676. 
 order for money, in hands of drawee, evidence 
 of payment, 675, 676. 
 
 PEESTMPTIVE EVIDENCE— COTSniWfi. 
 
 order for goods, rule as to difi'erent, 675, 676. 
 check for money, when evidence of payment to 
 payee, 676. 
 evidence of payment, not of a toon, 676. 
 taking receipt in full implies settlement on 
 both sides, 676. 
 ofpaynwnt, from lapse of twenty years, 676. 
 Note 193, presumptions, 676. 
 payment must be pleaded in such cases, 676. 
 origin of presumption. 676. 
 from course of dealing, rule stated in text, 676. 
 receipt of rent last dne, presumption from, 
 
 675,676. 
 less than twenty years does not raise pre- 
 sumption of payment, 677. 
 presumptions, how repelled, 677. 
 by payment of interest, 677. 
 by inability to pay, by absence, 677. 
 by various circumstances, 678. 
 rule as applied to mortgages, 678, 679. 
 recent decisions, 679. 
 right of entry, when barred, 679. 
 time of disability, as infancy, coverture, &c., 
 
 not counted, 679, 680. 
 presumptive bar, how repelled, 680, 681. 
 rule as applicable to reversioner, remainderman, 
 
 680, 681. 
 to various kinds of mortgages, 681. 
 as applicable to other sealed instruments, 682. 
 to judgments, 682. 
 to warrants of attorney. 682. 
 to decrees in equity, 682. 
 to annuities, 683, 685. 
 to portions charged on real property, 683. 
 to legacy or distributive share, 683, 684, 685. 
 to advances by executor, 684. 
 to vendor's equitable lien for purchase money, 
 
 684. 
 lien how created and destroyed^ 684, 685. 
 assent to legacy presumed, when, 685. 
 presumptive bar in cases of annul ties, portions 
 
 and legacies, 685. 
 continuing trusts not afifected by Statute of 
 
 Limitations, 686, 686. 
 where character of trustee is usurped by 
 
 stranger, 686. 
 what trusts come under Statute of Limita- 
 tations, 686,687. 
 from what time statute runs, as to fraudu- 
 lent deeds &c,, 687. 
 in cases where there is a legal and equitable 
 remedy, concurrent, 687. 
 statute applies, 6S8-, 689, 
 various illustrations of rule, by decided cases, 
 
 689. 
 application of rule from analogy, 689-691. 
 adjudged cases, 689, 690. 
 time enlarged by disability, when, 690. 
 in cases of fraud, mistake, or undue influence, 
 
 690, 691. 
 
 must be stated in bill, when, 691. 
 
 purchases by trustees, when set aside, 661-695. 
 
 who are considered such within rule, 692, 693. 
 
 exceptions to the rule in case of public officers, 
 
 693. 
 pledgees and mortgagees, 693. 
 other exceptions, 693. 
 contracts and purchases, when to be opened 
 
 on terms, 693. 
 circumstances to be considered, 694. 
 other rights waived by neglect, by long lapse of 
 time, 694. 
 rights of pre-emption and election, 695. 
 waiver of right of dower by delay, 696. 
 of equitable right to a provision, &c., 696. 
 of equitable title under devise, 696. 
 delay, effect of on right to specific performance, 
 
 695-698. 
 specific performance, when decreed, 695, 696. 
 delay which is excusable, 697, 698. 
 
 which is not excusable, 698. 
 relief to lessee under lease with covenant for 
 renewal, 698. 
 on certain conditions, 698. 
 delay to enter for forfeiture. 698. 
 re-entry when presumed, 699. 
 delay by legatees and distributees to call for dis- 
 tribution, 699. 
 creditors standing by and allowing distribu- 
 tion, 699. 
 
788 
 
 INDEX. 
 
 PKESUMPTIVE EVIDENCE— £mi!mw€(2. 
 
 delay by minors on coming of age to demand 
 legacies or shares, 699. 
 when payments made to wrong persone, 699, 
 
 700. 
 acquiescence by Geetui Que trust in breach of 
 trust, too. 
 delay in certain cases, 700. 
 acti ons for account, how affected by long lapse 
 
 of time, 700. 
 cases showing force of delay, &c., 701. 
 ignorance of right, effect of, 701. 
 length of delay, no certain time, in what cases, 
 
 701. 
 rule does not apply as against the state^ 701. 
 
 stale demands, 701. 
 delay, how pleaded or taken advantage of, 701, 
 
 702. 
 Statute of Limitations, 709.' 
 in New York, for suits in equity, 703. 
 extent of limitation, 703. 
 of reputed ownership, 703. 
 in cases of treason, 704. 
 Circumstantial evidence, 704. 
 in criminal cases, 887-389. 
 weight of 612-618. 
 harmony of all the facts with the hypothesis 
 
 of guilt, 614, 615. 
 failure to explain, 615. 
 should exclude any other hypothesis. 616. 
 proof weakened by number of essential cir- 
 cumstances, 617. 
 direct proof of higher degree than, 704. 
 fallibility of, discussion of exceptional cases, 
 
 704^711. 
 the eleven cases of mistake arising from, 
 
 stated and explained, 705. 706, et sea. 
 a curious case in the reign of Queen Elizabeth, 
 • 706-709. 
 
 necessity of resorting to, 709, 710. 
 in cases of murder, the body must be found 
 
 dead, 711. 
 considerations affecting weight of evidence, 
 
 711. 
 facts proved-by credible witness to be taken 
 as true, 711, 712. 
 when witness is partially impeached, 712, 
 
 713. 
 if unlmpeached, statement must be harmon- 
 ized with other evidence where that can 
 be done, 713. 
 no certain standard for ascertaining credit of 
 conflicting witnesses, 714. 
 the jury are to pass upon it, 714, 715. 
 elementary principles, foundation of belief 
 '^ in testimony, 715-731. 
 
 principles assumed, as basis of belief, 716, 
 
 717. 
 circumstances affecting statement of credi- 
 ble witness, 718, 719. 
 acknowledgments by party, 719. 
 opportunity of knowledge, 720. 
 misapprehension of facts, 721. 
 greater or less attention, effect of on testi- 
 mony, 723. 
 false or absurd reason for recollecting facts, 
 
 723. 
 answer of witness yes or no to quesiion, 
 
 effect to color, 723. 
 criteria or tests of credibility of conflicting 
 
 witnesses, 724, 725. 
 consistency of statement with itself, 725. 
 witness's use of language to be considered, 
 
 725, 726. 
 manner and deportment, 726, 737. 
 general character of witness, its efi'ect, 727, 
 
 728. 
 witness called to impeach another, ,728. 
 effect of refusing to answer question tending 
 
 to criminate, 728. 
 situation of witness in life, effect of. 739. 
 number of witnesses concurring In statement, 
 
 729. 
 conflict of opposite witnesses, 780, 731. 
 rule false in part, false in whole, 780. 
 circumstances tending to strengthen or to 
 impair evidence, 730, 731. 
 ni.— Of the relevancy of presumptive proofs, 732. 
 Illustrated by various cases, 733. 
 general rule, 732. 
 irrelevant evidence to be rejected, 782. 
 
 PRESUMPTIVE EVIDENCE— cora^inwet?. 
 
 evidence to be confined to point in issue, 732. 
 not error to exclude evidence irrelevant when 
 offered, though it may afterward appear rele- 
 vant, 732. 
 cases showing point in,i8sue under various forms 
 ' of pleading, 733. 
 
 whether irrSevaut testimony given on one side 
 will authorize answering testimony, 783, 734. 
 sfate of issue determined as to relevancy of evi- 
 dence, 735. 
 circumstances after material, 736. 
 usual practice where irrelevant testimony is 
 
 offered, 736. 
 mode of introducing connected or consecutive 
 proofs, 737. 
 proving a fact by circumstances, 737, 738. 
 failure in a chain of evidence, effect of, 738. 
 when it is proposed to prove a fact by circum- 
 stances, the fact must appear relevant, 739. 
 cumulative testimony admissible, when, 739. 
 evidence maybe admissible for one purpose, 
 though not for another, 739, 740. 
 S cases m which testimony will be received as 
 relevant, 740-742. 
 when testimony will be rejected as irrelevant, 
 
 742, 748. 
 a party who puts himself on one issue admits 
 all the rest, 743. 
 admissions in the pleadings, 743, 744, 745. 
 notice subjoined to plea, effect of, 745. 
 effect of particular pleas, 745-748. 
 by way of admission, 746-748. 
 justification in action of slander, 745. 
 general issue, as an admission, 745-747. 
 disclaimer, in real action, 747. 
 justification in action for malicious prosecu- 
 tion, 747. 
 other pleas, 747, 748. 
 proof of other contracts, &c.whenadmi8sible,748. 
 not when res inter alios, 1^. 
 agreements between landlord and other ten- 
 ants as to pajonent of rent, 748. 
 in action for vexatious suit, other suits inad- 
 missible, 748. 
 in action for assault, &c., provocation not im- 
 mediate, inadmissible, 748, 749. 
 instances of irrelevant testimony, 749. 
 quality of goods supplied to other persons, 
 
 749. 
 forgery of other documents, 749, 750. 
 
 collateral inquiry not permitted, 750. 
 proof of other transactions to show knowledge 
 or intention, 750. 
 as that acceptors knew bill to be payable to 
 
 fictitious payee, 750. 
 and in cases of fraud, 750. 
 and others where knowledge is material, 
 
 750. 751. 
 or where the motive qualifies the act, 759. 
 or shows the good faith of a transaction, 753. 
 proof of customs in other manors, &e., 753. 
 rule of questions of tenure, 754. 
 as to custom of the county, 754. 
 as to particular customs, 755. 
 as to rights of tenants, 755. 
 as to course of particular trade in another 
 
 place, 755. 
 acts of ownership on other portions of land, 
 
 755, 766. 
 inquiry on cross-examination as to custom of 
 tithing, 756. 
 arising from evidence of character, 757. 
 in civil suits uot in general allowed, 757. 
 as in ejectment to set aside will for fraud, 
 
 757. 
 or on an information for keeping false weights, 
 
 757. 
 character may come in question in many 
 
 ways, 758, 759. 
 in showing probable cause, 758. 
 and in actions for libel and slander, 758. 
 but the rule is, that evidence of character is 
 not admissible, 758, 759. 
 unless character be the point in issue, 759, 760. 
 in action for adultery or seduction, 760. 
 when plaintiff's bad character not in issue 
 
 on questions of damage, 760. 
 on a question of specific misconduct, defema- 
 tion, 760. 
 
INDEX. 
 
 789 
 
 PRBSUMPTIVK EVIDBNCE— conWnwerf. 
 whether general reports admissible, T61. 
 admlBsible on question of damages, 761. 
 general good character inadmissible, when, 
 
 761, 
 so in action for malicious prosecution, 758, 761. 
 in criminal cases, 
 general character of complainant, when ad- 
 misBlh e, 761. 
 of prosecutrix on charge of rape, 761. 
 evidence of particular facts not admissible, with 
 
 one exception, 762. 
 evidence of good character of prisoner, admis- 
 sible, 762, 763. 
 and may be rebutted, 762. 
 weight of, in cases of doubt, 763. 
 evidence must have some reference to charge, 
 
 763, 764. 
 particular acts or expresBionB,.when admissible, 
 
 764. 
 must be as to general character or reputation, 
 
 764. 
 not the practice to cross-examine witnesses aa 
 
 to character, 765. 
 unless there be some specific charge, &c., 765. 
 evidence answered by proof of previous con- 
 viction, 766. 
 or by proof of general bad character, 765. 
 
 of particular acts inadmissible, 765. 
 of general disposition to commit oflFense inad- 
 missible, 765. 
 evidence generally to he confined to charge, 766, 
 
 766. 
 when other offenses may he proved, 766, 767. 
 in treason, overt acts not charged inadmissible, 
 
 766. 
 unless conflucing to prove those charged, 766. 
 of a distinct crime, inadmissible, 766. 
 in burglary, previous crime on same premises 
 
 not admiMible, 766, 767. 
 proof, several acts constituting one oifense ad- 
 missible, when, 767. 
 though the prisoner indicted for such separate 
 oflSnoe, 767, 768. 
 
 must be connected to render evidence admis- 
 sible, 768. 
 so where the offense consists of guilty know- 
 ledge or intention, 768, 769. 
 uttering or possessing forged notes or coun- 
 terfeit money, 768, 769. 
 cases showing that possession of other coun- 
 terfeit notes or com, is admissible, 769, 770. 
 whether others of different character, 769, 770. 
 demeanor and conduct of prisoner may be shown, 
 
 770, 771. 
 his admissions and statements, 770, 771. 
 proof of subsequent facts, when admissible, 771. 
 on charge of malicious shooting, proof of pre- 
 vious shoot'Ug, 772. 
 
 of sending threatening letter, other letters ex- 
 planatory of it, 772. 
 of libel or slander,proof of other defamation, 
 
 772, 
 of receiving stolen goods, possession of other 
 
 articles stolen at same time, 772. 
 of conspiracy to cheat, proof of other repre- 
 sentations, 772, 77.S. 
 of murder, proof of previous threats, 773. 
 of conspiracy and not, proof of general char- 
 acter of meeting, 773. 
 of other meetings at which defendant was 
 
 present, 774. 
 of conspiracy generally, 774. 
 acts and declarations of prisoner, when evi- 
 dence for him, 774-777. 
 when they refer to transactions proved 
 
 against him, 774, 775. 
 cotemporaneons acts, when received, 776, 
 
 777. 
 IV. — Of evidence in matters of opinion, 778. 
 
 admissible in matters of skill, 778. 
 ^ opinions of medical men, when admissible, 778. 
 form of question to witness, admissible, 778, 779. 
 other examples, 779. 
 on questions of science and skill, 779. 
 as to ancient writings, 780. 
 forged seals on notes, counterfeit coin, &c., 
 
 780. 
 picture whether genuine, 780. 
 postmarks, 780. 
 forged writings generally, 780. 
 
 Vol. I. ] 
 
 PRESUMPTIVE EVTDENCB— con«»«Md. 
 
 rule confined to matters of science and skill, 
 
 780. 
 opinion inadmissible on question of profes- 
 sional etiquette, 781. 
 on honor in conduct, 781. 
 opinion of underwriters as to materiality of 
 facts concealed, 781. 
 
 cases illustrating rule on subject, 781, 782, 
 
 783. 
 not admissible bo as to vary contract of in- 
 surance, 782. 
 evidence in cases of collision at sea or on 
 land, 784. 
 handwriting, 784. 
 recent decisions, 785. 
 
 See title Bandwi'Uing. 
 as to foreign laws, 784. 
 
 See title Foreign Laws. 
 V. — Of admisBions on the record, 785. 
 
 1. Of the effect of a judgment hy default or on 
 demurrer, 786. 
 
 what admitted by judgment by default illus- 
 trations, 785, 786. 
 by judgment on demurrer, 786. 
 
 2. Of the effect of payment of money into court, 
 
 788-793. 
 must be pleaded, 788. 
 effect of, as an admission, 788, 789, 790. 
 where money paid in upon general counts, 
 
 788, 789. 
 where upon special contract, 788. 
 eft'ect of, as admisBion of contract, 788. 
 where both upon special contract and gene- 
 ral counts, 788. 
 in action on policy, 789. 
 notice under Code allowing judgment for 
 
 certain sums, 789. 
 cases showing what is admitted by pay- 
 ment into court, 789, 791. 
 in case of sale by sample, 791. 
 in trover, no admission beyond amount paid 
 
 in, 791. 
 with plea of statute of limitations, 791. 
 admits signature in action on bill or note, 790, 
 
 791. 
 sufiSciency of stamp, 791. 
 execution of deed or contract, 791. 
 admits plaintiff's right to sue, and is waiver 
 
 of condition precedent, 791, 792. 
 admits jurisdiction, 791, 792. 
 gives no effect to illegal contract, 792. 
 effect of, as to matters collateral to contract, 
 
 792. 
 in action for negligence, 792. 
 effect of summons for leave to pay in money, 
 
 793. 
 party paying money cannot recover it, 793. 
 
 3. Of the effect of pleading over, 793. 
 general rule, 793. 
 
 rule under the New Tork Code, 793. 
 effect of special demurrer, 793, 794. 
 admits only material facts. 794. 
 not allegations which are not traversable, 
 
 794. 
 what are material facts, 793, 794. 
 how far it operates as an admission, 794, 
 
 795. 
 as to facts- material to the issue, 795. 
 facts admitted not to be proved, 795. 
 and cannot be disproved, 795, 796. 
 examples, 796, 796. 
 how far admission of facts in the pleadings 
 before jury, 796-799. 
 whether jury may draw inferences from 
 
 facts so admitted, 796-798. 
 onus probandi in certain cases, 798 
 determined by pleadings, 798, 799. 
 
 4. Of the effect of particulars of demand, 799. 
 form no part of record, 799. 
 
 where credit given in for sums paid, 800 
 
 admits payment by the defendant, 800. 
 
 where plaintiff snes for a balance, 800. 
 
 admission of set-off, 800. 
 
 how far conclusive 800, 801. 
 confine party to items, 801. 
 
 particulars confined to part of demand, 801, 
 
 802 
 
 effect of second particularB, 802. 
 to be delivered under order when, 802 
 practice tmder New York Code, 802 
 
790 
 
 INDEX. 
 
 PRBSUMPTIVB 'EVIJmNCE— continued. 
 
 relating to common counts only, do not pre- 
 clude recovery under Bpecial count, 802, 803. 
 effect of, not abridged by separate demand, 
 
 803. 
 need not specify interest, 803. 
 how far evidence in support of plea; 803. 
 
 in New York, rule, 803. 
 object of particulars, when may be called for, 
 
 804. 
 when sufficiently accurate and full, 805, 806. 
 errors in, 804-807. 
 as to date, 807. 
 may be extended by defendants evidence, 807, 
 
 808. 
 where defendant's evidence gives plaintiff a 
 a new cause of action, 808. 
 delivery of, when to be proved, 809. 
 variance between particulars annexed and 
 delivered, 809. 
 PRIEST, 
 confession to, not privileged, 137. 
 privileged, where, 137, 138. 
 PKINCIPAL AND AOOESSORT, 
 when principal competent as witness against ac- 
 cessory, 109. 
 in second degree not considered accomplice so as 
 to require confirmation. 113. 
 PRINCIPAL AND SUEKTY, 
 admission of principal not evidence against su- 
 rety, 525, 586. 
 entries of deceased, in accounts, receivable, 526. 
 admissions of surety not admissible against co- 
 surety, 497. 
 right of surety on a foreclosure, 693. 
 PRISONER, 
 dying declarations, when admissible, for and 
 
 aT;ainst. See Hmrsay, Iv. 
 writings in possession, when admissible against, 
 
 448. 
 confessions by. See title Cimfessions, Examina- 
 tions. 
 admissions by, effect of, 469. See Hearsay, ix. 
 inquiry as to character, how far admissible, 762- 
 
 764. 
 See titles Prfifi«mp^M»M, (fee, Character. 
 acts and declarations of, when evidence as to for- 
 mer transactions, 771, 772. 
 when evidence for him, 774. 
 PRIVATE ACTS, 
 
 of formal character, presumptions as to, 643. 
 PRIVATE RIGHTS, 
 
 hearsay as to, inadmissible, 242. 
 PRIVATE WAY, 
 
 established or defined bv u^er, 650. 
 PRIVILEGED OOMMDNIOATION. 
 I. — Professional communications to legal adviser 
 cannot be given in evidence, 180-184. 
 what communications are privileged, 181-133, 
 
 143, 144. 
 privilege is that of client, 184. 
 need not relate to suit pending or expected, 
 
 131-142. 
 employed to draw or advise respecting deed, 
 132, 139, 140, 142, 144. 
 to make abstract, 140. 
 
 to foreclose mortgage by advertisement, 140. 
 to consult with bankrupt on his affairs, 131. 
 to advise as to sale or purchase , 144. 
 privilege extends to all cases of communications 
 made to legal adviser in his professional ca- 
 pacity, 142-145. 
 to attorney, solicitor or counsel, 130, ISO. ■ 
 not to clerk or student of attorney, 136, 187, 
 
 138. 
 but Buch clerk or student cannot disclose 
 what he hears communicated to an attor- 
 ney or counsel, 185, 138, 187, 138. 
 to interpreter or agent Detween client and ad- 
 viser, 13.^. 
 to personal representative of legal adviser, 135. 
 communications to au attorney not engaged as 
 such, not privileged, 131, 135. 
 nor to person consulted as attorney who Is 
 
 not one, 135, 136, 137, 138. 
 to medical men, not privileged, 130. 
 statutory privllogo of physicians and sur- 
 geons, 186-1.38. 
 co-nmunications not privileged ; 
 to a friend, 135, 186, 142. 
 to a banker, 137. 
 
 PRIVILEGED COMMUNICATION— amKnwed. 
 to a clerk, 137, 138. 
 to a steward, 137. 
 to a clergyman, 137, 138. 
 statutory privilege of clergyman, 138. 
 when privilege commences and ends, 139-145. 
 as to production of documents, 131, 143, 145- 
 
 148. 
 or disclosing their contents, 145-148. 
 continues after confidence has ceased, 140-145, 
 
 148. 
 rule as to, in criminal prosecutions, 131, 148- 
 
 152. 
 in cases of forgery, 149-152. 
 attorney not compelled to produce forged 
 
 note, 149, 150. 
 communications as to forged instrument, 
 
 when {privileged, 150, 151. 
 must be intrusted to attorney as an adviser, 
 
 161, 152. 
 where attorney acts for two parties, 152. 
 attorney of one not a party, 153-156. 
 examined as to collateral matters, 156. 
 communications for an unlawful purpose are 
 not, 132, 140, 142, 143. 
 to legal adviser as to collateral matters, 131, 
 
 142, 166. 
 repeated after relation has ceased, 142. 
 fact of retainer and by whom, 1.31, 143, 157. 
 not as to specific object of retainer, 131, 143. 
 adviser not to withhold knowledge gained by 
 him, 142, 157. 
 client's handwriting, 142, 157. 
 execution of instrument in his presence, 142, 
 
 156. 
 concealment of client, 131,142, 160. 
 that he gave him a check, and what was said 
 
 of his being in funds, 131. 
 that an instrument was placed in his hands 
 and whether indorsed^ not, 142, 157. 
 not bound to produce 1^45, 146, 154. 
 may be compelled to show indorsement 
 on it, 146, 157. 
 where legal adviser acts for two persons. 
 145, 146, 152. 
 privilege in regard to third parties, 153-156. 
 attorney may oe examined as to collateral facts, 
 
 167-160. 
 as a subscribing witness, 156. 
 to show real parties to suit, 157. 
 to show a document in his possession, 157. 
 to facts gained from other persons, 158. 
 as to contents of a notice, 169. 
 as to communications not professional, 159, 
 
 160. 
 II. — Communications privileged on ground of 
 public policy, 160-168. 
 information given to government, 161-163. 
 in cases of 'treason and high crimes, 161, 162. 
 in aid of the police, 163. 
 and in detecting breaches of revenue laws, 163. 
 official communications, 104-168. 
 between officers of government, 164, 165. 
 facts transpiring in secret session of Senate, 
 
 164, 165. 
 to public officer, 104, 165. 
 proceedings in Parliament, 165. 
 proceedings in court, 166. 
 before arbitrators, 166. 
 privilege of counsel, 160 
 arbitrators examined, on what points, 166. 
 report by an ai'ent to his principal, Ihfl. 
 communications in discharge of duty, 166. 
 recent decisions, 166. 
 proceedings be lore grand jury, 166, 167. 
 grand juryman examined, as to what matters, 
 
 166, 167. 
 proceedings of the petit jury, 168. 
 how far may be examined into, 163, 
 PRIVY, 
 admissions of, how far evidence, 626-631. 
 in recital or deed, when binding on, 473. , 
 receivable against, generally, 626, et seq. 
 not when privity determined, 529. 
 PJiOCHSmAkl. 
 
 admissions by when evidence against Infiant, 436. 
 PROCLAMATION, 
 
 royal, when noticed judicially, 619. 
 PROCTOR, 
 deceased, entry by against interest, when admle- 
 Bible,83B. 
 
INDEX. 
 
 791 
 
 PRODTJCTION, 
 
 of ancient documents from proper custody, condi- 
 tion precedent to their aamiseibility, 6, 310. 
 PEOMISSOKY NOTE, 
 
 evidence of adoption of, not being forged4442. 
 
 how set forth in pleadings, 867. 
 
 verbal adtnission as to, ^2. 
 
 admission of former holder when evidence, 530, 
 
 631. 
 by one of several makers of a note, 498, 501. 
 rule in this country, 328, et seg., 481-483. 
 
 how proved, 811. 
 
 presumed to have been given for value, 820, 
 
 how proved, in action on, 840, 84.3. 
 what allegations material, 840-843. 
 
 when may be impeached by parties to, 119-127. 
 
 on order to pay money, 825. 
 PEOPERTY, 
 
 found in consequence of confessions, improperly 
 obtained, 554. 
 PBOPOSALS. 
 
 in writing unstamped, when admissible, 579. 
 PROSECUTOR, 
 
 competent as witness in criminal cases, 63, 59. 
 
 when incompetent from interest, 60-63. 
 PUBLICATION, , 
 
 of libel, when presumed, 633. 
 PUBLIC MATTERS, 
 ' definition of, 217. 
 
 admissibility of hear^ as to, 217, 235. 
 See Hearsay, i. 
 PUBLIC OFFICE, 
 
 presumption as to course of, 645. 
 
 and from course of public office, 645. 
 PUBLIi; RIGHTS, 
 
 definition of. 217, et sea., 241. 
 PUBLIC RUMOR, 
 
 how proved, and when admissible, 173, ISO. 
 PUBLIC WAT, 
 
 presumption as to, 650. 
 
 Q 
 
 QUAKERS, 
 
 may give testimony on affirmation, 21, 22. 
 QUEEN. See title Sovereign. 
 QUESTION, 
 
 to prisoner, will not render hie confession inad- 
 missible, 559. 
 QUI TAM ACTION. See Prosecutor, Informer. 
 QUIT RENT, 
 
 presumed paid from lapse of time, when, 673. 
 
 R 
 
 RAPE, 
 complaint of, made immediately after offense, 
 
 may be shown, 184. 
 wife competent against husband to prove, 94. 
 particulars of a recent complaint inadmissible, 
 
 184. 
 a boy under fourteen not capable of, 629. 
 proof of, will sustain indictment for assault with 
 
 intent to commit, 834. 
 when character of prosecutrix may be inquired 
 
 into. 761, 762. 
 EASURE See title Alteration. 
 RATE-BOOK. 
 
 entries in, 307, 310. 
 RECEIPT, 
 written, how far it operates as an admission, 474. 
 not conclusive, 474 
 
 may be contradicted or varied by parol, 474-477. 
 in full, with full knowledge of facts, eflfect of, 475, 
 
 476. 
 when in nature of contract, 476. 
 
 as in bill of lading, 476. 
 rscent decisions, 477. 
 value received in note, 477. 
 oTily prima fade evidence of payment, 477. 
 need not be produced, 587-589. 
 in full of damages for tort, 477. 
 for work done, 477. 
 given on a disputed claim, 477. 
 on receipt of note on purchase, 477. 
 of notes to be credited, 477. 
 recsipts for money, 474. 
 
 d J not preclude parol evidence though indorsed 
 on deed, 474. 
 
 what may be shown to impeach, 474-477. 
 
 misrepresentation, fraud, mistake, 474-477. 
 
 special receipts, 476. 
 
 embodying contracts, 476. 
 
 BMUETPT— continued. 
 
 receipts included in deed, effect of, 477. 
 how proved, and effect of, when proved, 586-589. 
 need not be produced to prove fact of payment, 
 
 586, 687, 
 receipted bill of parcels, when to be produced 
 as the highest evidence, 587-589. 
 See Admissions. 
 RECEIPTOR, 
 his interest in goods levied on, 647. 
 has no right of action for, 6i7. 
 but see Miller v. Adsit, 16 Wend. 335, that he 
 has a right of action. 
 RECITAL, 
 in deed evidence of pedigree, 255-257. 
 of one deed in another, effect of, 471, 473. 
 See title Deed. 
 RECORD, 
 admissions on, effect of, 785. 
 when stated in substance in pleadings, 862. 
 admission of, does not dispense with production, 
 
 583. 
 matter of, not provable by parol, 581, 582, 692. 
 ancient, provable, in what manner, 695. 
 how proved. 581, et seg., 592. 
 RKCTOE, 
 entries in books of, when admissible for succes- 
 sor, 3.36, 337. 
 REDEIVIPTION, EQUITY OP, 
 when barred by adverse possession by mortgagee, 
 
 o79. 
 time, how computed, 679, 680. 
 
 g resumptive bar, how repelled, 680, 681. 
 LATIONS, 
 declarations of, admissible in matters of pedigree , 
 
 RELATIONSHIP, 
 of declarant, necessary to admissibility of hearsay 
 
 in matters of pedigree, 271, 276. 
 not so in ancient pedigree, 275, 276. 
 RELEVANCY. See title IfviOence. 
 evidence must be confined to points in issue, 732- 
 
 777. 
 rule illustrated by recent decisions, 732. 
 determined by the form of the issue, 733-737. 
 not always easy to determine. 736. 
 consecutive proofs, mode of introducing, 737. 
 
 offers of evidence material and immaterial, 737. 
 
 to show motive in murder, 737. 
 admissible, though not essential, 739. 
 admissible for one purpose thougli not for another, 
 
 739, 740. 
 cases in which evidence received. 740. 
 cases where rejected as irrelevant, 742. 
 evidence confined to issue, 743, 744-747. 
 of other contracts, 748. 
 
 of other transactions to show knowledge, &c., 
 
 750-753. 
 on trial for forgery or passing counterfeit money, 
 
 762. 
 
 customs in other manors, 753. 
 of the country, 754. 
 acts of ownership in other lands, 755, 756. 
 evidence of character not admissible, 757-762. 
 
 unless directly in issue, 758, 769, 760. 
 admitted in criminal cases, 761-765. 
 when other offenses may be proved, 766, 767-777. 
 evidence of disposition, when not admissible, 
 
 765. 
 of evidence on trial for treason, 766. 
 receiving stolen goods, 767. 
 
 burglary, 766, 767. 
 to show guilty knowledge, 767, 768, 769. 
 intention. &c., 768, 772. 
 
 on trials for fo.^ery, altering cou'tterfeit money, 
 &c„ 768-770. 
 
 demeanor and conduct, 770, 771. 
 
 subsequent facts, 771. 
 other and previous circumstances, 772-774. 
 prisoner's acts and words, evidence for him, 
 
 when, .774-777. 
 objection on ground of, when made, 734, 735. 
 illustration of rule that the evidence must be con- 
 fined to points in issue, 733-749. 
 other contracts, when relevant, 748. 
 other transactions, to show knowlege, 750. 
 on question of custom, 753. 
 acts of ownership, 755. 
 evidence of character. In civil suits, 767. 
 
 in action for adultery and seduction, 760. 
 
 malicious prosecution, 761. 
 
793 
 
 INDBX. 
 
 RELEVANCY— COTuJinweii. 
 in criminal cases, 762 et seg. 
 other criminal acts, to show intention, 768 «< seg, 
 in prosecution for conspiracy to cheat, 772. 
 
 to riot, 773.. 
 acts and contract of prisoner, 774. 
 RELIGIOUS BELIEF, 
 degree of requisite in witness, 19-21. 
 obieetion for want of, when taken, 16, 18. 
 belief in future state not necessary, 18. 
 what inquiries in relation to permitted, 18, 20. 
 belief in future state requisite to admit dying 
 declarations, 287, 288, 298. 
 RELIGIOUS PRINCIPLE. 
 
 what defect of, renders witness incompetent,19-31 . 
 RENT-ROLLS, 
 
 ancient, admissible as evidence of ownership, 282. 
 REPAIRS, See title Boad. 
 REPLEVIN. See title Conusor. 
 statement of leaseyrom a day, supported by proof 
 
 of lease on that day, 827, 828. 
 variance in, waen material, 828. 
 REPQTATION, 
 public, admissible in matter.^ of general interest, 
 
 217 et ««?. 
 not admissible to prove usage in electing a 
 schoolmaster, 231. 
 or to establish private rights, duties or llabili- 
 ties. 231-234. 
 ■admissible respecting public matters, S85, 242. 
 old documents, maps, verdicts, &c., 235-238. 
 judgments, decrees and orders, 238, 239. 
 caution in admitting, 240. 
 admitted to prove pedigree, 248, 249, 
 to prove state of a man^ property, 387. 
 
 in proof of partnership, 388. 
 family, in matters of pedigree, 250-254. 
 to prove character of persons, 200. 
 of house, 181. 
 of club, 178. 
 state of man's property, 387. 
 partnership, dissolution, 200, 388. 
 cubtom or-usage, 231. 
 
 prices or value, 200, 779. 
 matters of pedigree, death, birth, marriage, 248 
 
 et sea. 
 official character, 592-594. 
 
 boundary, 219etseq. 330-236. 
 possession of property, proof of, 387. 
 REPUTED OWNERSHII* 
 general opinion admissible as to, 173-lSO. 
 from possession, 603, 646 et sea., 
 BES GksT^, 
 declarations part of, 185 et seq. 
 declarations accompanying, deemed part of the 
 transaction, 184-202. 
 illustrations of the rule, 185-202. 
 respecting solvency of party recommended, 186. 
 purpose of sending a note, 186, 187. 
 by wife in leaving her family, 187. 
 by husbandin sending her away, 187. 
 in respect to other transactions, 187, 188. 
 in refusing acceptance, 187. 
 in making bill of sale, 188. 
 in sales of real or personal property, 188. 
 list of creditors, lease, survey, &c., 188, 189. 
 words accompanying acts in civil and criminal 
 cases, 189-194. 
 words and entries to show payment, &c., 192. 
 
 to show knowledge, intent, &c,, 192, 193, 196. 
 to qualify possession, 193-198. 
 
 of real estate, 194-108. 
 of real estate held adversely, 195-197. 
 by tenant in posession, 194-197, 198. 
 rule applies to personal property, 197, 198. 
 declarations to show residence or domicil, 198. 
 to show state of feeling, sanity, <*<;., 199. 
 by aft agent In his master's buBinoss, 199, 201, 
 
 215. 
 by one of several joint wrong doers, 199, 200. 
 in proof of dissolution, usage, prices, &c., 200. 
 recent decisions respecting the res gestoi, 201. 
 
 ty party in possession, 201 . 
 by former owner in possession, 201, 202. 
 on guestions of bankruptcy, 203. 
 time of making material, 203-206. 
 declarations of conspirators, when received, 205. 
 writings, declarations, and letters by, 206-207. 
 when not received, 208. 
 writings found in possession of conspirators, 209. 
 of rioters and parties aiding, 209, 210. 
 
 BES OMST.^S— continued. 
 
 directions and acts, with common design, 209, 
 
 210. 
 declarations of deceased persons or witness not 
 
 received, 914, 215. 
 act of agent, proved as, 245, 405, 456, 507-513. 
 his admission when so considered, 508-511, 514. 
 when hot so considered, 511-514, 
 
 recent cases, 5l2. 
 in making a sale by warranty, 514. 
 fact of agency to be proved, 514, 516. 
 agent's letter not received to prove contract, 614. 
 See title Hearsay. 
 BBS INTEB ALTOS A OTA, 748. 
 
 See titles Hearsay, Presumptions, &c. 
 RESIDENCE, 
 
 presumed to continue, 640. 
 RESOLUTION, 
 
 at public meeting, how proved, 691. 
 RETURN, 
 
 and acts of deputy, when bind sheriff, 531. 
 REVENUE OFFICER, 
 
 appointment of, presumed when, 592. 
 REWARD, 
 promise ol, its effect on admissibility of confes- 
 sion, 651. -' 
 RIGHTS. See titles Hearsay, Substance. 
 what may be proved by hearsay public and gene- 
 ral, 217 et seg. 
 distinction between, 241. 
 right of common, 337. 
 private and prefcri_ptive, 229. 
 reputation inadmissible as to right to wreck, 
 
 243. 
 modem exercise when admissible as reputation, 
 
 244. 
 incorporeal, presumptions as to, 648, 649. 
 RIGHT TO BEGIN, 
 at trial, 809 et seg. 
 RING, 
 
 engraving upon, when admissible, 260. 
 RIOT, 
 declarations of co-rioters, when admissible, 209. 
 allegation of place of, when material, 205, 806. 
 RIVJERS, 
 title to bed of navigable, in state, 652. 
 not so if river not navigable, 6-17. 
 ROAD, 
 liability to repair, how proved, 232. 
 as to repairs done to, 333, 234. 
 right to, when presumed from user, 650, 651. 
 
 and when extinguished by non-user, 651. 
 title to bed of, or of stream, presumed, 647, 648. 
 ROBBERY, 
 recent complaint of, when admissible, 184. 
 not proved by dying declaration, 387. 
 on charge of, prisoner may be convicted of larceny, 
 
 SALE, 
 of goods by sample, in action upon, what admitted 
 
 by payment into court, 791. 
 of unwholesome food by servant, presumption 
 
 from, 634. 
 under a pledge, 693. 
 
 on foreclosure of a chattel mortgage, 693. 
 SANITY, 
 presumed, 604. 
 
 but prisoner entitled to benefit of doubt as to, 
 
 604. 
 disproved by inquisition found, 785. 
 evidence admissible to prove insanity, 785. 
 SEAL, 
 what, judicially noticed, 624, 626. 
 genuineness of, when opinion admissible as to, 
 
 780. 
 of apothecaries' company, see Introd. Ohap. 
 SEAMEN, 
 
 receipt by, for wages, effect of, 474, 475. 
 SEAWORTHINESS, 
 presumption as to, 629. 
 overcome by proof, 62!). 
 SEARCH FOR WRITINGS, 
 a condition precedent to admissibility of second- 
 ary evidence, 5, 6. 
 sufficiency of, to be decided by court, 5, 6. 
 
 nature of search required, 5, 6. 
 necessary, before proving contents, 676-679, .595, 
 
 596. 
 SECONDARY EVIDENCE, 
 rule as to exclusion of, 667, 
 
793 
 
 SECONDARY EVIDENCE— a)»MreM«rf. 
 principle of tlie rule, 568. 
 
 reason of, limits extent of its applications, 568. 
 instances where it does not apply, 568. 
 requires highest grade of evidence, not most 
 
 satisfactory, 568, 569. 
 that a piece of money is counterfeit, 568. 
 rightful taking by Bheriflf, 568; 569. 
 judgment, execution, &c., 568, 569. 
 inferior may not be substituted for higher, 569- 
 
 573. 
 ■ written instead of oral evidence, where there is 
 written evidence, 569. 
 explanation of rule. 569, 570. 
 examples of, 570. 
 
 copy not adruissible till the original is shoTNOi to 
 be lost, 570. 
 all possible proof not requisite, 570. 
 
 nor all the evidence, nor the strongest, 570, 571. 
 a deed may be proved by one of several subscrib- 
 ing witnesses, 571. 
 instrument may be proved by admission, &c., 
 
 when, 571. 
 handwriting may be proved by other person 
 
 than the writer, 571, 572. 
 contents of letter, how proved, 571, 372. 
 
 or of other writings, 573. 
 execution of note or contract by agent, bow 
 proved, 573. 
 proof of negative, when not necessary, 572. 
 absence of consent, 573. 
 
 of notice, 572, 573. 
 when bestprOof of negative requisite, 573, 574. 
 rule relates to quality^ not g^iantity of evidence, 
 
 574. 
 evidence to identify a counterfeit note, or wear- 
 ing apparel, 574. 
 entry of deceased person admissible in proof of 
 payment, without calling person who paid the 
 money, 675 
 
 so as to statements of deceased persons, 574. 
 parol evidence cannot be substituted for written, 
 
 575, 576. 
 where the writing is siibject of dispute, 575. 
 rule does not apply where the writing is lost or 
 
 destroyed, 575. 
 rule as to cross-examining as to contents of let- 
 ters, 575, 576. 
 
 or contents of written dissolution, 575. 
 allotment by inclosure commissioners, 576. 
 contracts in writing as to tenancy to be pro- 
 duced, 57fi, 578. 
 so as to other contracts, if it appear on cross- 
 examination that the contract Is in ^vriting, 
 it must be produced, 576-578. 
 not so where plaintiff proves his case and rests, 
 before it appears tart the contract was in 
 writing, 5',8. 
 mere feet of occupation may be proved by pay- 
 ment of rent, 578. 
 the nature of tenancy presumed in some cases, 
 
 648. 
 collateral writing need not be produced, 579. 
 
 mere bill of parcels rAieipted to prove sale, 579. 
 * a written offer of compromise, 579. 
 order or proposal not acted upon, 579. 
 miere as to order for extra work, 579. 
 reference to unstamped paper by judge, objection- 
 able, 679. 
 
 nnstamped proposals for work admisBibie, 679. 
 when action in tort for conversion of written 
 instrument, 579, 580. 
 inferior written evidence not admissible in place 
 of original, 580. 
 
 entry in books of Insurance company, 580. 
 memorial of registered deed, 680. 
 printed copy ot manuscript, 580. 
 printed papers considered as originals, 680. 
 
 newspapers, 580, 681. 
 machine copy, 581. 
 parol evidence not admissible to prove judicial 
 proceedings, 581, 583. 
 oath recorded, 581. 
 day when cause tried, 581. 
 appointment of surveyor, 581. 
 judgment of court naturalizing alien cannot be 
 impeached by parol, 581. 
 so a certificate of conviction, 581. 
 proof as to abbey, where matter of record, 581. 
 order of Court of Chancery, 582. 
 discharge of insolvent, 582. 
 
 SBCONDAET EVIDENCE— «mMrai<«tf. 
 
 admission by party will not supply place of re- 
 cord, 582. 
 nor can it be Impeached, 581, 583. 
 dealing with or recognizing corporation, 683. 
 examination of prisoner, 582. 
 reduction to writing presumed, 582. 
 admissible, if shown not reduced to writing, 
 
 583, m. 
 additional statements of prisoner, when not 
 under examination, admissible, -683.. 
 when under examination, 583. 
 declarations omitted supplied, 583. 
 lost record of conviction, proved by parol, 
 
 583. 
 certain facts of record proved by parol, 584. 
 examination of accused on oath inadmissible, 
 
 584. 
 informal written examination. 584. 
 clerk's note of preliminary evidence, 585. 
 rule as to admission of hearsay. 585. 
 memorandum, notes, &c., 585, 586. 
 secondary written evidence not allowable for re- 
 freshing memory, unletes, &c., 585. 
 entries not evidence of facts entered, 585, 586. 
 but entries and copies of entries may be used to 
 * refresh witness's memory, 586. 
 
 quere, whether he may testify to entries, that 
 they are true as facts, though he does not 
 remember the facts, 585, 686. 
 \\'here there are duplicate originals, absence of all 
 must be accounted for before secondary evi- 
 dence admissible, 586. 
 where writings do not exclude oral testimony, 
 
 586. 
 payment may be proved without producing re- 
 ceipt, 536, 587. 
 notice to deliver up property, verbal and writ- 
 ten, 587. 
 note given for a loan to be produced, 587. 
 bill of parcels need not, 587, 589. 
 
 unless it be the evidence of title, 587, 589. 
 other facts provable by parol, 588, 589. 
 bill of sale to be produced, if title claimed under 
 
 it, 589. 
 proof of marriage without producing register, 
 
 589. 
 by circumstances, by general reputation, 589. 
 where writing not admissible in evidence, 589. 
 being unstamped, 589. 
 
 inspection of unstamped receipt to refresh mem- 
 ory, 590. 
 admission of debt admissible, though there be a 
 written promise to pay, 590. 
 unsigned memorandum of agreement, 590. 
 paper containing resolutions delivered by de- 
 fendant, 590. 
 inscriptions on flags and banners, 590. 
 resolutions read at public meeting, how proved, 
 
 591. 
 exceptions to the rule, 
 
 1. proof of records and public books, 592. 
 examined copies admissible, 592. 
 
 See title Secords, and Vol. II. 
 
 2. appointments to public office, by acting in 
 office, 593. 
 
 as justice of peace, 592. 593. 
 exceptions to this rule, 593, 594. 
 
 constable, 592. 
 
 revenue officer, 592. 
 
 surrogate, 593. 
 
 commissioner to take affidavits, 692. 
 
 sheriff, 593. 598. 
 
 attorney, 592. 
 as under sheriff and other officers, 593. 
 
 vestry clerk, 593, 504. 
 the inquiry is, whether the person be an offi- 
 cer de facto, 593, 594. 
 rule applies 1n legal proceedings by or against 
 officer, 594. 
 
 not where one acts under private authority, 
 
 594. 
 tithe collector, assignees of bankrupt, 594. 
 
 3. where inquiry as to general mode of dealing, 
 
 &c., 594 . 
 
 practice as to accepting bills, 595. 
 
 general balance of accounts, 595. 
 
 witness cannot be asked as to general con- 
 tents of letters destroyed, 595. 
 
 substance of old records may be given, 595. 
 
 4. where original evidence not attainable, 595. 
 
794 
 
 INDEX. 
 
 SECONDABT WVIDENCE— continued. 
 
 inscriptions on the walls and fixed tablets, 
 
 B95. 
 notice hung on wall to be produced, BUS, 596. 
 
 5. nolicea of dishonor, to quit, &c., may be 
 proved by copies, 596. 
 
 See title Writing, and Vol. II. 
 
 6. examination on voir dire, 596. 
 
 where dqcuments are 1 'St or destroyed or in 
 posssBsion of the opposite party, secondary 
 • evidence admissible, 596. 
 negotiable security lost or destroyed, 596. 
 examination of witness with a view to con- 
 tradict him, 597. 
 proof of documents in absence of attesting 
 witness, BDT, 
 SEDUCTION, 
 in action for, evidence of character, how far admis- 
 sible, 760. 
 
 of matters in aggravation of damages, 760. 
 SEPARATE VERDICT, 
 effect of, in rend. ring one defendant a competent 
 witness. 51, 56. i. 
 SEPARATIST, * 
 
 affirmation of, same m effect as oath, 32. 
 SERVANT, ■• 
 
 declarations of, not admissible in matter of pern- 
 gree. 270. 
 SET-OFF, 
 how far admitted by particulars of demand, 800. 
 particulars of, 809. 
 SHAKES, 
 in company, written admission as to holding, 
 
 426. 
 SHIP, 
 unseaworthiness of, when presumed, 629. 
 loss of. when presumed, 642, 
 SHERIFF, 
 appointment, presumed from acting, 592-594, 
 book of, not judicially noticed, 623. 
 admissions of under-sheriff, evidence against, 
 
 when, 521. 
 justifying the taking of property, 568, 669, 814, 815. 
 mode of proving appointment of deputy, 568, 569. 
 official character, 668, 569. 
 execution, and issuing of, 568, 569. 
 where it has been lost, 668, 669. 
 proof of appointment to office, 592, 593, 694. 
 
 from official acts, 643. 
 burden of proof in suit against, 814, 816. 
 on question of competencu of deputy, see 3d Vol. 
 BHOC)TING, MALICIOUS, 
 proof of previous shooting, admissible in indict- 
 ment for. 772. 
 SHOP-BOOK, 
 of tradesmen, when inadmissible, 370. 
 See Book of Account. 
 SIGNATURES. See title Hearsay. 
 to entries, what sufficient, 346. 
 to bill or note, admitted by payment into court, 
 
 791. 
 SKILL, 
 
 matters of, opinion admissible as to, 778-785. 
 SLANDER, 
 proof of material part of words alleged, sufficient, 
 
 S-J7. 
 unless words not actionable per se, 827. 
 amendment in statement of, when allowed S."*!, 
 
 885. 
 variance as to words, 827. 
 cannot prove other equivalent words, 827. 
 when witness cannot give all of the words, min- 
 utes of testimony, 396-400. 
 of school, practice in other schools not admissi- 
 ble, 'M9. 
 SLAVERY, 
 incapacitates witness, when, S. 
 prosiimed from color, when. 603, 065. 
 bresumptiou of slavery, how rebutted, 665. 
 SPECIAL i'LEAS, 
 
 adm'ssions by, 741 ct scq. 
 SPECIFIC PERFORMANCE, 
 long delay will prevent, 696-fi98. 
 unless it be excusable, U!I7-6U8. 
 
 SOLVIT ADD imr, 
 
 plea of, supported by payment before, 675, Cud, 
 
 or payment to third person, if authorized, 825. 
 SOVEREIGN, 
 semble, may ba examined as a witness, 15, 
 accession of, judicially noticed, 619. 
 
 SPOLIATION, 
 presumptions raised by, 602. 
 presumption against party, guilty of, 602. 
 of will, bond, note, bill, &c.. 602. 
 or fabr. cation of evidence, 639. 
 STAMP, 
 want of, effect of, 575, 579. 
 substance of statement unstamped, provable, 589. 
 sufficiency of, a condition to admissibility of 
 
 certain documents, 6. 
 upon deed belonging to client, attorney nqt 
 
 answer as to, 159. 
 on bill, admitted by default, 785. 
 80 by payment into court, 791. 
 STATE .MENT. 
 rendered by agent, of moneys received, how 6ir 
 
 conclusive, 469. 
 by children inadmissible in evidence, 11, 13. 
 by persons incapable of testifying. 9, 10. 
 by party not evidence in his own favor, 37-89. 
 when admissible as showing animus, 38. 
 made by third person in presence of party, when 
 
 receivable, 434, 438, 443. 
 by person making charge, to show animus, 440. , 
 admissible, if party replies to them, 446. 
 STATUTE, ; 
 
 presumption as to, 659. ' 
 public, noticed by court, 620, 621. 
 STEWARD, 
 not privileged from answering as to affairs of 
 
 employer, 137. 
 deceased, entries by, when admissible, 306, 529. 
 STRANGERS, 
 admission by, when evidence, 479, etseg. 
 transactions with, when admissible, 763. 
 SUBSCRIBING WITNESS. See Attesting Witnm. 
 competent to impeach validity of instrument, 129. 
 proof without calling without objection. 98. 
 declarations of, after his death, 214, 215. 
 alluded to in argument, 394, 395. 
 proof of deed by one where there are several, 571, 
 
 610. 
 where not required by law, 671, 572. 
 to a will, are allowed to express their opinion as 
 to sanity of the testator, 785. 
 SUBSTANCE. See title Variance. 
 of issue, sufficient to be proved, 824. 
 immaterial averments need not be proved, 824. 
 allegations by way of inducement need not be 
 
 proved, 825. 
 it 13 enough to prove the substance of the issue. 
 
 824, 826. 
 the material allegations, 826. 
 illustrations of life, 825. 
 in civil cases, 8-5-830. 
 in criminal cases. 830-835. 
 what are material and immaterial, 835-843. 
 in indictments. 843-845. 
 SURRENDER OF TERM, 
 when presumed, 671-673. 
 SURKOGATB, 
 
 appointed as, presumed, when, 592-594. 
 SURVEY, , 
 
 evidence as admission, when, 528, 529. 
 SURVEYORS, 
 entries in p«rish books as to, receivable as repu- 
 tation, 2o3, 234. 
 declarations by, when receivable, 512. 
 of deceased, as to boundary, 222 et sect. 224. 
 SURVIVORSHIP, 
 presumptions to, 641. 
 
 TENANCY. See titles Tenant and Lease. 
 admission of commencement of, by acquiescence 
 
 in notice to quit, 443. 
 contract in writing as to, must be produced where 
 
 title to be shown, 576. 
 otherwise as to mere fact of occupation, 578. 
 j may be proved by payment of rent, or parol decla- 
 ! rations. 678. 
 
 tiiUure of. presumptions as to, 648. 
 
 (Milorini; under ai^reement for term of years, 648. 
 
 rnNANT, 
 
 estopped from disputing landlord's title, 455, 467, 
 
 not oy mere attornment, 468. 
 may hIiuw landlord's title expired, 468. 
 for life, deceased, recognition of particulars of 
 
 estate by, where admissible as hearsay, S12. 
 rights of in other manors, when admissible, 753, 
 
 755. 
 
INDEX 
 
 795 
 
 TENDER, 
 allegation of subsequent demand of sum tendered, 
 not supported by demand of larger sum, 830. 
 TENURE, 
 
 rule in questions as to, 'i'54. 
 TEKM, 
 
 surrender of, wben presumed, 671-673. 
 TESTATOR, 
 intention of, ■wben declarations admissible to 
 sbow, 180, 181. 
 TESTIMONY, 
 of witnesses, considerations affecting credibility 
 and weight of, 711-730. 
 THAMES, 
 
 gort of, judicially upticed, 626. 
 EFT, 
 
 presumption of, from possession of stolen prop- 
 erty, 634-638. 
 THREATENING LETTER, 
 
 in prosecution for other letters, admissible, 772. 
 Tllfe, 
 
 averment as to, when not material, 854-856. 
 when material, 854-856. 
 
 variance as to time of making or performing con- 
 tract, 855, 856. 
 
 as to time of forbearance, 855. 
 demand and notice of protest, 840, 841, 855, 656. 
 
 variance in description of contract. 860, 851. 
 
 former rule illustrated by cases, 862, et sea, 
 TITHE COLLECTOR, 
 
 entries by, against interest, admissible, 336. 
 TITHES. 
 
 lands given in lieu of, hearsay not evidence of, 233. 
 TITLE, 
 
 private, hearsay not evidence of, 173, 231. 
 
 of another, effect of admission of, 365, 454, et seq, 
 
 of plaintiff, admitted by payment into court, 791. 
 
 on a sale of a pledge, 693. 
 
 on foreclosure of a chattel mortgage, 693. 
 TOLL, 
 
 statement of, when may be amended, 881. 
 TOMBSTONE, 
 
 inscription, evidence in matter of pedigree, 263. 
 TORT, 
 
 rule as to variance in actions of, 836, 837, 853-856. 
 TRADE, 
 
 course of, proof as to, 755. 
 TRANSFER, 
 
 of personal property, proof of, B68, 569. 
 
 when made Dy bill of sale, 568, 569. 
 TRANSLATION, 
 
 must be made on oath, 212. 
 TREASON, 
 
 witnesses for prisoner formerly not sworn, 15. 
 
 objection to admissibility of witness, when to be 
 taken, 97. 
 
 confession in, how proved, 565-567. 
 
 presumptions in, 704. 
 
 evidence to be confined to charge, 843. 
 
 overt act of, to be alleged and proved, 566. 
 
 what evidence admissible to prove, 567, 766. 
 
 confession, not sufficient, when, 666, 667. 
 
 gapers found on prisoner, when admissible, 766. 
 KATMENT orsOBJECT, 
 when it operates as an admission, 450, 451. 
 TRESPASS, 
 possession, when evidence of title, so as to sus- 
 tain action, 646, 647. 
 time alleged in, when material, 856. 
 matter of description, material, 857, 858. 
 See Jieceiptcr. 
 TRIAL, 
 fact of, how proved, 402, 583. 
 re-examining witnesses, parties being absent, 
 
 error, 213, 214, 
 mode or order of trial. 816, et S£q. 
 reception and rejection of testimony, 732, et seq. 
 TROVE K, 
 what admitted by payment into court, 791. 
 action of, to recover writings, 579. 
 See Receiptor. 
 TRUSTEES, 
 not competent witnesses, when party to suit, by 
 .old rule, 41-43. 
 
 conveyance by, when presumed, 673. 
 purchases by, when set aside, 691-695. 
 
 rr. 
 
 UNDER-SHERIFF, 
 admissions of, evidence against slierlff, when, 
 620, »t seq. 
 
 UNDER-SHERIFF— conii«s«(«. t.^ 
 
 appointment of, presumed from acting, 592-594. 
 UNDERSTANDING, 
 
 defect of, renders witness incompetent, 9 et seq. 
 UNDERWRITER, 
 presumptions as to, 645. 
 
 opinioi. of as to materiality of facts concealed, 
 how far admissible, 781. 782. 
 UNNATURAL OFFENSE. See title Husband and 
 
 Wife. 
 UNSEAWORTHINESS, 
 
 presumption of, 629. ^ 
 
 USAGE AND CUSTOM. See title Omtom, and / 
 
 Vol. II. V 
 
 USE AND OCCirPATION, £:_> 
 
 occupant estopped ftom disputing title, vrSBKr 
 
 455, 467, 576, et seq. 
 written agreements relating to, must be produced, 
 
 576, 578. 
 USER, 
 presumption from, 649, et seq. 
 in regard to lights. 649. 
 
 as to right of public and private way, 650, et seq. 
 as to incorporeal rights, 651, 652. 
 as to easements, right of fishery, landing, 652. 
 right of mining, and to running water, 633, et 
 seq. 
 right from, how rebutted, 659. 
 wnon a ground of presuming an act of legislation, 
 
 659. 
 as a ground of presuming a grant from crown or 
 state, 660, et seq. 
 USURY, 
 attorney may prove, in action on bond, 157, 
 
 or party in action on bill or note, when, 119-129. 
 on indictment for, borrower competent, 59. 
 competent also in qvi tarn suit lor usury, 61. 
 proof must be strict in such actions, 850, 851. 
 variance, when material, 855, et seq. 
 UTTEKING, 
 of forged notes, or counterfeit money, previous 
 « uttering or possession, admissible, when, 601, 
 ^68,et seq. 
 
 V. 
 VAGRANT ACT. 
 in proceedings under, wife admitted as witness 
 against her husbsud, 96. 
 VALUE, 
 when statement of material, 891. 
 in general not material, 834. 
 an invoice evidence of value, 388. 
 VARIANCE. Bee title Substance. 
 between judge^s order to admit and document 
 
 produced, effect of, 506. 
 I. — In Qivil cases, 
 plea Of solvit ad diem, maintained by payment 
 before dav. 835. 
 
 payment, now supported, 825, 830. 
 performance of a condition precedent, not sup- 
 ported by proof of tender or excuse, 825. 
 various illusirations of rule, 825, 826. 
 recent decisions, 826. 
 what is not under present practice, 825. 
 payment to a stranger by appointment of plain- 
 tiff, 825. 
 in covenant, allegation of waste not supported 
 
 by mere unbusbandlike treatment, 826. 
 in action against sheriff, allegation that he had 
 plaintiff and wife in execution supported by 
 proof that husband alone in execution for 
 debt of wife, dum sola, 826, 827. ■ 
 in slander, sulflcient to prove material part of 
 words, 827. 
 
 or the substance of words charged, 827. 
 not sufficient to prove other equivalent words, 
 
 827. 
 cannot prove other words to show malice, 827. 
 in replevin, lease from a certain day, proved by 
 lease on that day, 827, 828. 
 allegation of demise for three years, not sup- 
 ported by proof of lease for a year with a 
 privilege of two more. 828. 
 cannot depart from the issue, illustrations, 
 
 828, 829. 
 in trespass, what evidence will support plea of 
 
 enjoyment for thirty years, 829. 
 in case, for disturbance of common, plea of right 
 of common for cattle levant and conchant, k9. 
 other examples, 829. 
 plea of tender, 830. 
 
796 
 
 INDEX. 
 
 VARI&.T<tCS— continued. 
 of payment, 830. 
 n. — In criminal cases, 
 cliflrge of composing and publishing libel^ sup- 
 ported by proof ofpnblisning, 830. 
 false pretences, by proof of part, 830. 
 when a part is sufficient to establish crime, 
 
 830. 
 on a charge of murder, prisoner may be found 
 guilty of manslaughter, 831. 
 allegation,i)f manner of death, 831, 838. 
 of robbery or burglary, may be found guilty of 
 larceny, when, 831. 
 charge as principal in Jirsi degree, supported by 
 proof ofbeing principal inCecond, 831, 833. 
 secus, by proof being accessory, 838. 
 so, on charge as accessory, by proof of being 
 
 principal m second degree, 833. 
 on charge of murder of officer in execution of 
 process, allegation of delivery of process im- 
 material, 838. 
 evidence admissible under various indictments, 
 
 838-835. 
 where the accusation includes an offense of in- 
 ferior degree, prisoner may be convicted of it, 
 though acquitted of the higher crime, 833. 
 illustrations, 833. 
 an exception to the rule, 833. 
 finding under a joint indictment, 833. 
 American cases substantially same, 833, 834. 
 statutes of New York, 834. 
 variance from charge in nuniber, magnitude, or 
 value, in general immaterial, 884, 836. 
 allegations of description, 834. 
 mode of stating wntings as affecting proof, 
 
 834, 835. 
 intention, when material, 834. 
 indictments for perjury, 834, 835. 
 III. — Of material and immaterial averments, in 
 civil suits, 835. 
 
 what averments must be provf d, 835. 
 variance between allegations and proof, when 
 
 immaterial, 835, 836. , 
 
 recent rule on subject In New York and 
 England, 836. 
 in torL proof of part allegation sufficient, 836, 
 
 837. 
 secus^ when matter of description, 837. 
 in contract, whole must be proved as laid, 837. 
 in cases of prescription, must be proved as laid, 
 
 837. 
 averments being matters of inducement need 
 not be proved strictly, 837, 838. 
 in aciion to recover double value of goods re- 
 moved, amount of goods immaterial, 837, 
 
 838. 
 discussion of this exception to general rule, 
 
 837. 838. 
 allegation that cannot be struck out must be 
 proved, 8.38. 
 
 as in action against eheriflF for not leaving 
 year's rent, averment of time of payment of 
 rent, 839. 
 rule stated and commented upon, 839-841. 
 averment that may be struck out need not be 
 proved, 838, 839, 841. 
 
 as in an action for breach of warranty, aver- 
 ment of defendant's knowledge, 841. 
 or in action by infant against surgeon for neg- 
 ligence, allegation that defendant was em- 
 ployed by infant, 841, 843. 
 rule stated, and illustrated by cases, 841-843. 
 an averment that may be struck out without 
 affecting cause of action, is immaterial, 843, 
 843, 841. 
 IV. — Of material and immaterial averments, in 
 indictments, 843. 
 if averments surplusage, need not be proved, 843. 
 as in charge of robbery, averment that it was 
 
 near highway, 843. 
 or that it was in the house of a certain person 
 
 named, 843, 
 of arson, that It was committed in the night 
 
 time, 843. 
 of perjury, title of answer, 843. 
 secus, where essential to charge, 
 as In charge of stealing K»e turkeys, 844. 
 of burglary with intent to steal goods of per- 
 son named, 844. 
 an allegation not necessary to constitute the 
 crime may be rejected as surplusage, 844. 
 
 YAXlANCE—contlnmd. 
 
 not so where the allegation is descriptive of the 
 offense, 844, 845. 
 as in indictment for riotously tearing down 
 A's house, or stealing A.'s goods, or com- 
 mitting a crime in a particumr ward, 845. 
 T.— Of variances in civil suits, 845. 
 in action on contract, 845. 
 contract in alternative, must be so stated, 845. 
 so if it contain an exception, must not be 
 stated absolutely, 845, 846. 
 the allegata and probata must correspond, 884, 
 
 846. 
 illustration of the rule by cases, 846-849. 
 a variance between the allegation and the legal 
 effect and identity of the contract proved, is 
 material,B46, 847, 848. 
 it IS sufficient, if the contract proved is the same 
 in substance with that alleiged, 847-849. 
 rule under Code of New Tork, 849, 851. 
 when contract stated in action of ^wi, 849. 
 the proof of the contract must correspond with 
 the description of it in all material respects, 
 
 850. 
 that is, where th6 action is founded upon the 
 
 contract, 850, 861. 
 present rule in New York, 851. 
 what parts of contract must be stated 851. 
 joint contracts, 851, 858, 853. 
 rule as to party sued, 851, 863, 853.- 
 
 as to party suing, 858. 
 reason for distinction, 853, 853. 
 where several defendants are sued as makers 
 of a joint and several note, 853. 
 joint torts, 853, 854. 
 plaintiff may sue one or all of the parties doing 
 injury, 853, 864. 
 exception as to torts affecting real property, 
 
 854. 
 proof of time as laid, 843, 854. 
 when material, 854-866, 
 in general not material, 855. 
 may be material, or rendered so by plead- 
 ings, 855, 856. 
 of place, 857-869. 
 when material^ being descriptive, 857, 858. 
 statement of prescriptive right, 859. 
 
 proof of more ample right, 859. 
 action for disturbance of right, 859. 
 proof of less extensive right, 859, 860. 
 right must be of same nature, 860. 
 rule of cou"t as to amendment of variances, 860, 
 See 3d vol. 
 right of waj-, 860. 
 right of common, 860. 
 variance as to documents stated in pleadings, 
 
 8ol. 
 former rule, 861. 
 when material and when immaterial, 868-873. 
 
 1. material, when instrument stated in hKC 
 verba, 868-864. 
 
 2. when stated in substance, to be proved in 
 essential particulars, 864-869. 
 
 8. when not stated, but produced in proof Of 
 fact alleged, 869-671. 
 recent statutes on the subject, 871-873. 
 amendments afterverdict, 878. 
 
 general power of amendment, 873. 
 deed may be stated according to substance, 861. 
 so in setting out record, 862. 
 date of acquittal in action for malicious pros- 
 ecution, 862. 
 date of judgment iu action for fiilse return, 
 863, 873. 
 VI. — Of amendments iu civil suite. 878. 
 Lord Tenterden's act, 9 Geo. IV, c. 15, as to 
 amendment of variance between record and 
 
 written evidence, 878, 874, 
 cases under this statute, 874 et seq. 
 civil actions, 874, 876. 
 actions for not obeying snqpcena, 874. 
 statement of contract, 874, 876, 
 amendment under Code of New York, 874. 
 proof of a different cause of action, 876. 
 in indictment for misdemeanor, 876. 
 perjury, 875. 
 does not apply when secondary evidence of 
 
 writing, 875. 
 Btat. 3 and 4, Wm. IV, c. 4S. 
 sec. 23, power of amendment extended to 
 parol evidence, 876, 
 
INDEX. 
 
 797 
 
 VARIANCE— conMftMd. 
 
 order of amendment to ba indoraed on 
 
 postea, 877. 
 sec. 24 Instead of amendment, special find- 
 ing of jury may te indorsed on record, 877. 
 to what proceedings tlie statute applies, 878. 
 
 what variances, 878. 
 amendment, how made, 878. 
 power when variance not prejudicial, 878. 
 
 terms of amendment, 87S. 
 where variance may be prejudicial, 878. 
 
 terms of amendment, 878. 
 restriction on amendments, 879. 
 right to talte case before court in banc, 879. 
 that court will not Interfere, when, 879. 
 facts may be found speoiallj', when, 879. 
 power of amendment reserved to court, 879. 
 see common law procedure acts of 1859 and 
 
 1854, 878. 
 power of amendment exercised liberally, 880. 
 amendment, when to be made; 880; 
 cases in which amendments' have been 
 
 allowed, 880. 
 in statement of warranty, 881. 
 of general custom, 881. 
 of false representation, SdX. 
 of wager, 881. 
 
 of tolR in market place, 881. 
 of contract to purchase govenuuent secnri- 
 rity, 881. 
 
 to guaranty payment, 883. 
 to build, 888. 
 as to payment, 882. 
 when contract stated according to legal 
 effect, 888. I 
 
 of agreement to refer, 882. 
 of liability of defendant, 88a. 
 of parties to agreement, 883. 
 of members of firm, 883. I 
 
 of statement of bill or note, S83. 
 of name of close, 884. 
 
 of parish, 884. j 
 
 of day of demise in ejectment, 884. 
 of words spol^en in action for slander, 884, 
 
 885. 
 as to libel, 885. ' I 
 
 by adding a count, 885. ' 
 
 words "by statute," 886. 
 by annexing writ, 885. 
 in allegation of excuse for notice of dis- 
 honor, 885. 
 in statement of game. In plea of gaming, 885. 
 cases in which amendments have been reiused, 
 
 885. 
 statute does not apply to material omis- 
 sion, 885. 
 to alter extent of justification or avowry, 
 885, 880. 
 award ot venire, 886. 
 to strike out name of co-defendant, 88(j. 
 to increase amount of damages, 886. 
 to Introduce new contract and breach, 886. 
 in agreement for lease 886. 
 as to eviction 886. 
 as tOTJonsideration of guaranty, 886. 
 to introduce entirely new matter, 887. 
 to alter recital or contract, 887. 
 
 breach of covenant, 887. 
 when variance may have affected mode of jilead- 
 ing, 887. 
 
 statement of effect of deed, 887. 
 claim of watercourse, 888. 
 demise in ejectment, 888. 
 
 year of demise, 888. 
 innnendoes in action of slander, &c., 888. 
 where objection would be good in arrest of 
 
 judgment, 889. 
 agreemeut to consolidate contracts, 8S9. 
 Vn.— Of variances in criminal cases, 889. 
 not necessary to prove time as laid, 889, 890. 
 or place, 890. 
 
 unless laid as matter of description, 890. 
 or offense of local character, 890, 891. 
 or value, 891. 
 unless that be necessary to constitute the 
 offense, 891. 
 Vm.— Of amendments in criminal cases, 891. 
 Stat. 7 Geo. IV, c. 64, 
 sect. 19, indictment not to abate by dilatory 
 plea of misnomer, 898. 
 amendments may be made, 892. 
 
 VARIANCE— conHnwtf. 
 
 wrong addition of prisoner, 892. 
 sect. 20, judgments on indictment not to be 
 stayed in certain cases, 898. 
 Stat. 9 Geo. IV, c. 15. 
 amendments of variances allowed as to writ- 
 ings in misdemeanors, 873, 898, 893. 
 Stat. 11 and 12 Vict. c. 46, § 4. 
 power of amendment extended to felonies, 
 
 893. 
 Stat. 14 and 15 Vict. c. 100. 
 power of amending indictments in all cases 
 assimilated to that exercised in civil actions, 
 ( ] 893-895. 
 
 VENUE, ' ' / 
 
 when place is only, variance not material, 857. 
 rule as to in criminal case8/89Q. 
 VERDICT, / 
 
 in criminal proceedings, cannot be used for prose- 
 cutor as evidence in civil suit, 58, 69. 
 when may be taken against accomplice, 108. 
 admissible as representation, when, 337. 
 effect of, 237, 238. 
 
 special, not evidence in pedigree, 874. 
 VERDICT SEPARATE, 
 
 effect of, 61-56. 
 VESTRY CLERK, 
 appointment of, ttora acting, 593, 594. 
 
 entry by as to ecclesiastical duties, when admis- 
 sible for successor, 338. 
 rom DISK 
 witness may be examined on, before he is sworn, 
 
 97, 98. 
 but this is not necessary ; usual course, 99-104. 
 mle as to admission of secondary evidence on, 696. 
 VOLUNTARY CONVEYANCER, 
 presumed fraudnlent and void, 608. 
 when presumption repeled, 608. 
 declarations of grantor admissihle. when, 320, 471, 
 
 608. 
 
 WAGER, 
 statement of, when might be amended, 881. 
 action on, no longer maintainable, 881. 
 WAR, 
 existence of, when judicially noticed, 620. 
 articles of, 680. 
 WARRANTY, 
 variance in proof of contract, when material under 
 
 former rule, 836, 846, 847, 848. 
 when variance material under present practice, 
 ' 836, 849. 
 
 by servant, at time of sale, admissible, 513, 514. 
 not if made afterwards, 514. 
 statement of may be amended, 881. 
 WASTE, 
 allegation of, in covenant, not supported by mere 
 
 unhusbandlike treatment, 826. 
 so allegation of voluntary waste, not supported 
 by plea of jpermissive waste, 826. 
 WATER EIUHTS, 
 acquired by user, 658-669. 
 priority of user, 654, 665. 
 recent decisions, 666. 
 WAY 
 public, presumption of, 660. 
 private, gained by user and limited by mode of 
 user, 660. 
 
 lost by non-user, 651, 659. 
 
 WEIGHTS, 
 legal, judicially noticed, 626. 
 
 wbDlrfingee, 
 
 and other bailees admit title of bailor, 469. 
 
 how far estopped from denying, 469. 
 WIFE, 
 
 imiting with hnsband in committing a crime, pie- 
 
 « sumed to act under coercion, 604. 
 
 effect of holding woman out as, 465, 
 
 when bound by her representations, 460. 
 
 in charging her estate, 466. 
 
 letters from, when date must be proved, 644. 
 
 admissions by as agent of husband, 92-94, 517 et seo. 
 WILL, 
 
 descrijjtion in, when admissible in matter of 
 pedigree, 258. 
 
 when attorney will not be compelled to produce, 
 
 145. 
 WITNESS, 
 
 competency of at common law. See Vol. m. 
 title Interest, 
 
 Vol. I. 
 
798 
 
 INDEX, 
 
 WITNESS— cmtimiecl. 
 competency of, decided by court, S-S. 
 presumed, 5. 
 must be sworn, 5, 6. 
 
 preliminary questions for judge to decide, 3-5. 
 credibility of decided by jury, 3-5, 
 grounds of incompetency. 
 
 1. defect of understanding, 7, &-14. 
 cbildren, insane persons and idiots, 9-14. 
 
 2. defect of religious principle, 14-23. 
 
 a^l oral evidence must be given on ooiA, 14, 17. 
 when considered incompetent on ground of pub- 
 lic policy, 8-10. 
 as jurors, arbitrators, slaves, &-10. 
 substance and form of the oath, 15-19. 
 religious belief not now essential in New York, 
 
 18. 
 essential at common la\7, 19. 
 alterations of rule by statute, 22, 
 
 3. incompetency from conviction of crime, 23-24. 
 mode of proving conviction, 22-24. 
 
 nature of crime which excludes, -22, 23. 
 
 competency restored by pardon, 22-34. 
 interest in event of suit does not render incompe- 
 tent, 24-28. 
 
 See Preliminary chapter. Vol. I and Vol. HI. 
 common law rule, ground of, 24, 25. 
 
 change of the rule, and theory of, 25-28, 39-44. 
 rule as applied to parties to the record, 29-36. 
 
 ground of their incompetency, 36-39. 
 members of corporations, parishes, villages, &c., 
 
 39^4- 
 
 co-plaintiffs and co-defendants, 44-57. 
 
 where one co-defendant has made default, 45-51. 
 
 in the case of a separate verdict, 51-57. 
 parties to suit, not competent as, general rule, 29- 
 
 39. 
 may prove loss of papers, service of notice, &c. , 32. 
 nommal party not competent at common law, 32. 
 rule illustrated by American cases, 29-35. 
 not C9mpellable to testify against himself, old 
 
 rule, 56, 57. 
 prosecutor in criminal cases competent as, 58, 59. 
 
 when incompetent from interest, 60, 61-63. 
 informers, when deemed competent, 62. 
 defendant in criminal prosecution incompetent, 
 
 63-06. 
 
 one of several, how rendered coinpetent, 64, 65. 
 
 one of several defendants in tort, 64, 65. 
 who not competent as, being persons for whose 
 
 immediate benefit suit broagat or defended, 66- 
 
 76. 
 direct and indirect interest, 66-72. 
 parties for whom action brought or defended, 71- 
 
 76. 
 rule with reference to husband and wife, 77. 
 
 statutory changes of rule, 77, 78. 
 
 ground of the rule, 78. 
 not confined to matters of confidence, 79-82. 
 
 effect of death of one of parties, 799, 80. 
 
 rule not applicable between man and mistreBB,82. 
 
 1. husband and wife not competent agaimt each 
 
 other, 83. 
 competent in collateral proceedings, 84. 
 not to prove non-access, 87. 
 
 2. husband and wife not competent for each other, 
 
 87-92. 
 there are some exceptions to the rule, 88. 
 in action for crim, con., 91, 92. 
 admissions by wife acting as agent, 92-94. 
 in cases of personal injuries, 94. 
 in special cases. 95. 
 time and mode of objecting to competency of, 97- 
 
 104. 
 mav be sworn on the voir dire, 97-09. 
 but this is not now necessary, 99-104. 
 may be examined in respect to papers not pro- 
 duced, 102, 103. 
 incompetency may be shown on voir dire, or by 
 other evidence, 97, 98, 103. 
 or in both waj'S, guere, 98, 101, 103. 
 waiver of objection, by omitting to object in time, 
 
 98, 102. 
 objection when removed by further examination, 
 
 108, 104. 
 manner of examining witness as to his compe- 
 
 tencv, lOS, 104. 
 objection to competency must be promply made, 
 
 99, 100, 102. 
 competency of accomplices, informers, &c., 105- 
 
 109. 
 
 WITNESS— contimied. 
 
 nature of the evidence, 105, 106. 
 object in admitting accomplices, 107. 
 application to admit, and terms, 108, 109. 
 confirmation of accomplices, 110. 
 their testimony should be supported, 110, 111. 
 parties jointly indicted, 109, 113. 
 extent of confirmation, 114. 
 informers considered competent, 62, 118. 
 alleging his own dishonesty, competent, when, 
 
 118-129. 
 impeaching paper to which he was a party, 119- 
 
 127. 
 self discrediting witnesses, 118. 
 parties to negotiable paper, 119-129. 
 and other contracts, 123^129. 
 subscribing, competent to impeach instrument, 
 ■ ^ 129. 
 
 comp^l^^^^sprove former statement on oath, 
 
 obJectSi^^KdmisBihility of, when to be made, 
 
 •^ 97-104. 
 
 may use memorandum to refresh recollection, 586. 
 
 testifying from entry, without recollecting facts, 
 
 361. 
 when it must be produced, 586, 695, et seg. 
 in giving testimony of witness from notes, 395- 
 
 400. 
 See OjiinUm. 
 may not be cross-examined to prove contents of 
 writing, 575. 
 
 when It should be produced, B76, 576. 
 nnimpeached, entitled to credit, 711, 712. 
 false in one particular, false in all, 712, 713, 730. 
 impeached by contradictions of himself, 712, 713. 
 opportunity of Imowing what he testifies to, 713, 
 
 T14, 720. 
 credit due to conflicting witnesses, 714, 715, 718. 
 
 principles of evidence, 715, 716, 717. 
 credit due to honest conflicting witpesses, 718, 
 
 719-724. 
 memory, habits of mind, &c., 722-725. 
 consistency of statement, 725. 
 modes of speech, manner, Ac, 725, 726, 729. 
 
 general character of witness, 727-729. 
 number of witnesses, concurrence, Ac, 729, 
 conflict of opposite witnesses, 730. 
 See same title. Vol. 11. 
 WITNESS, SELE-DISCEEDI7ING, 
 when estopped ftom impeaching the validity of a 
 written instrument, to which lie was a party, 
 
 119-129. 
 of negotiable paper transferred by him, 119. 
 decisions of the several states reviewed, 119-127. 
 WORDS. See title Parol JSvidence.Vol.U. 
 
 English, meaning of, noticed Judicially, 626. 
 WEECK, 
 
 right to, repntation'inadmissible as to, 243. 
 WMT, 
 containing return, when receivable as admission, 
 
 417. 
 WHITING 
 admissible as proof of collateral facts, 170, 171. 
 in possession of conspirators, whem evidence, 205. 
 ^6, et sen., 448. 
 admission as to contents of, when receivable, 421. 
 copy of agreement, 421. 
 recital of writ, 421. 
 verbal assignment of lease, 423. 
 promissory note, 422. 
 agreement, 422. 
 
 instrument directly in issue, 423. 
 written dissolution of partnership, 425. 
 holding shares in company, 425. 
 conveyance of land, 426. 
 parol admission not receivable to contradict, 426. 
 parol evidence of, not admissible, 570. 675, 616. 
 collateral, when need not be produced, 679. 
 when in nature of secondary evidence, 579, 580. 
 when secondary evidence may be given, B75, 679. 
 
 when not, 667, 568. 
 when nnattiiinable, 580, 695. 
 when lost or destroyed, 696. 
 
 when not, the Hot to be proved, 688. 
 ancient, when opinion admlsBlblo as to genuine- 
 ness of, 780. 
 statement of on record, amendm,ent as to, 873-875, 
 
 881. 
 admission in, 474. 
 
 See titles Hearsay, Secondary Evidence, Varianc*. 
 and Vol. II.