{ ( I ? ■ dorttf U ICam i>rt|onl ICtfatary Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020130179 A TREATISE LAW OF EVIDENCE. BY SIMON GREENLEAF, LL. D. F.MEKITUS PKOFESSOK OF LAW IN HAKVAED UNIVEESITY. Quorsum enim sacrse leges inventse et sancitse fuere, nisi ut ex ipsarum justitia unicuique jus suum tribuatur? — Mascakdus ex Ulpian. VOLUME I. ELEVENTH EDITION. BOSTON: LITTLE, BEOWN AND COMPANY. M DCOC LXIII. Entered according to Act of Congress, in the year 18S8, By James Gkeenleaf, in the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1863, By James Gkeenleaf, in the Clerk's Office of the District Court of the District of Massachusetts. bivebside, oambbidge: feinted by h. o. hovohiob. TO THE HONORABLE JOSEPH STOBY, LL.D., ONE 01' THE JUSTICES Or THE SUPREME COUET OF THE UNITED STATES, AND DANE PBOFESSOK OP LAW IN HAEVAED UNIVEESITT. Sir, In dedicating this work to you, I perform an office both justly due to yourself and delightful to me, — that of adding the evidence of a private and confidential witness to the abundant public testimonials of your worth. For more than thirty years the jurisprudence of our country has been illustrated by your professional and juridical labors ; with what success, it is now superfluous to speak. Other Jurists have attained distinction in separate departments 9f the law ; it has been reserved for yourself, with singular felic- ity, to cultivate and administer them all. Looking back to the unsettled state of the law of our national institutions, at the period of your accession to the bench of the Supreme Court of the United States, and considering the unlimited variety of subjects within the cognizance of the Federal iv DEDICATION. tribunals, I do but express the consenting opinions of your contemporaries, in congratulating our country that your life and vigor have been spared until the fabric of her jurispru- dence has been advanced to its present state of lofty emi- nence, attractive beauty, and enduring strength. But many vs^ill regard the foundation of the present Law School in Harvard University as the crovs^ning benefit, which, through your instrumentality, has been conferred on our profession and country. Of the multitude of young #men, who will have drunk at this fountain of jurisprudence, many will administer the law, in every portion of this wide- spread Republic, in the true spirit of the doctrines here in- culcated ; and succeeding throngs of ingenuous youth will, I trust, be here imbued with the same spirit, as long as our government shall remain a government of law. Your anx- iety to perpetuate the benefits of this Institution, and the variety, extent, and untiring constancy of your labors in this cause, as well as the cheerful patience with which they have been borne, are peculiarly known to myself ; while, at the same time, I have witnessed and been instructed by the high moral character, the widely-expanded views, and the learned and just expositions of the law, which have alike dis- tinguished your private Lectures and your published Com- mentaries. With unaffected sincerity I may be permitted to acknowledge, that while my path has been illumined for many years by your personal friendship and animating example, to have been selected as your associate in the DEDICATION. V arduous and responsible labors of this Institution, I shall ever regard as the peculiar honor and happiness of my professional life. BeaU vixisse videar, quia cum Scipione vixerim. Long may you continue to reap the rich reward of labors so vast, so incessant, and of such surpassing value, in the heartfelt gratitude of our whole country, and in the prosperity of her institutions, which you have done so much to establish and adorn. I am, with the highest respect. Your obliged friend, SIMON GREENLEAF. Cambridge, Massachnsetts, February 23, 1842. ADVERTISEMENT TO THE FIRST EDITION. The profession being already furnished with the ex- cellent treatises of Mr. Starkie and Mr. Phillips on Ev- idence, with large bodies of notes, referring to American decisions, perhaps some apology may be deemed necessary for obtruding on their notice another work, on the same subject. But the want of a proper text-book, for the use of the students under my instruction, urged me to pre- pare something, to supply this deficiency ; and, having embarked in the undertaking, I was naturally led to the endeavor to render the work acceptable to the profession, as well as useful to the student. I would not herein be thought to dispaige the invaluable works just mentioned ; which, for their accuracy of learning, elegance, and sound philosophy, are so highly and universally esteemed by the American Bar. But many of the topics they contain were never applicable to this country ; some others are now ob- solete ; and the body of notes has become so large, as al- most to overwhelm the text, thus greatly embarrassing the student, increasing the labors of the instructor, and render- vm ADVERTISEMENT. ing it indispensable that the work should be rewritten, with exclusive reference to our own jurisprudence. I have en- deavored to state those doctrines and rules of the Law of Evidence which are common to all the United States ; omit- ting what is purely local law, and citing only such cases as seemed necessary to illustrate and support the text. Doubt- less a happier selection of these might be made, and the work might have been much better executed by another hand ; for now it is finished, I find it but an approximation towards what was originally desired. But in the hope, that it still may be found not useless, as the germ of a better treatise, it is submitted to the candor of a liberal profession. Cambkidoe, Massachusetts, February 23, 1842. ADVERTISEMENT TO THE SIXTH EDITION. In this edition, as in those which have preceded it, the Author has endeavored carefully to revise and correct the text and notes ; to which he has added several new sections, and references to all the recent decisions on this subject, both in England and America, down to the present time, which have fallen under his observation and seemed mate- rial to be noted. Cambridge, Massachusetts, Sept. 18, 1852. ADVERTISEMENT TO THE SEVENTH EDITION. During the life of the Author, this work may be, said to have been always finished and complete, v His constant and careful labors left nothing to be added or changed. All the alterations and additions found in the text of this edition, and nearly all those in the notes, were made by him. A few decisions pi4)lished since his decease, have been inserted, or referred to, in the notes. Boston, September, 1854. ADVEETISEMENT TO THE NINTH EDITION. In the preparation of this volume for the press, there have been made therein references to, and in many instances, notes of, the more recent English and Ameri- can decisions. The additions appear in the notes and are included in brackets, thus [ ]. It is hoped that the profession vi^ill find the work carefully done, and that the volume will thereby be more serviceable. Boston, July, 1858. NOTE. Some of the citations from Starkie's Eeports, in the earlier part of this work, are made from the Exeter edition of 1823, and the residue from the London edition of 1817-20. The editions of the principal elementary writers cited, where they are not otherwise expressed, are the following : — Alciati, Opera Omnia. Basileae. 1582. 4 tom. fol. Best on Presumptions. Lond. 1844. Best Principles of Evidence. Lond. 1849. Canciani, Leges Barbarorum Antiques. Venetiis. 1781-1785. 5 vol. fol. Carpzovii, Practicse Rer. Crim. Francof. ad Msenum. 1758. 3 vol. fol. Corpus Juris Glossatum. Lugduni. 1627. 6 tom. fol. Danty; Traits de la Preuve. Paris. 1697. 4to. Everhardi Concilia. Ant. 1643. fol. Farinacii Opera. Francof. ad Msenum. 1618-1686. 9 vol. fol. Glassford on Evidence. Edinb. 1820. Gresley on Evidence. Philad. 1837. Joy on Confessions. Dublin. 1842. Mascardus de Probationibus. Francof. ad Msenum. 4 vol. fol. 1684. Mathews on Presumptive Evidence. New York. 1830. Menochius de Presumptionibus. Genevse. 1670. 2 tom. fol. Mittermaier, Traitd de la Preuve en Matiere Criminelle. Paris. 1848. Peake's Evidence, (by Norris.) Philad. 1824. Phillips and Amos on Evidence. Lond." 1838. 8th ed. Phillips on Evidence. Lond. 1843. 8th ed. Pothier on Obligations, by Evans. Philad. 1826. Russell on Crimes. 3d Amer. ed. Starkie on Evidence. 6th Amer. ed. 2 vols. Stephen on Pleading. Philad. 1824. Strykiorum, Opera. Francof. ad Msenum. 1743-1753. 15 vol. fol. Tait on Evidence. Edinb. 1834. Tidd's Practice. 9th Lond. ed. Wigram on the Interpretation of "Wills. 3d Lond. ed. 1840. Wills on Circumstantial Evidence. Lond. 1838. CONTENTS PART I. Of the Nature and Principles of Evidence. CHAPTEE I. Section Preliminary Observations 1-3 CHAPTER 11. Of Things Judicially taken notice of without Proof . . 4-6 CHAPTER III. Of the Grounds of Belief 7-13 CHAPTER IV. Of Presumptive Evidence 14-48 PART II. Of the Rules which govern the Production of Testimony. CHAPTER I. Of the Relevancy of Evidence 49-55 CHAPTER n. Of the Substance of the Issue ... . 56-73 b* xviii CONTENTS. CHAPTER III. Section Of the Burden of Proof 74-81 c CHAPTER IV. Of the Best Evidence 82-97 CHAPTER V. Of Hearsay 98-126 CHAPTER VI. Of Matters of Public and General Interest . . . 127-140 CHAPTER VII. Of Ancient Possessions ...%... 141-146 CHAPTER VIII. Of Declarations against Interest 147-155 CHAPTER IX. Of Dying Declarations 156-162 CHAPTER X. Of the Testimony of Witnesses subsequently dead, absent, or disqualified 163-168 CHAPTER XI. Of Admissions 169-212 CHAPTER XII. Of Confessions 213-235 CHAPTER XIII. Of Evidence excluded by Public Policy .... 236-254 CONTENTS. Six CHAPTER XIV. Section Of the Number of Witnesses, and the Nature and Quantity of Proof required in particular cases .... 255-274 CHAPTER XV. Of the Admissibility of Parol or Verbal Evidence, to affect that which is Written 275-305 PART III. Of the Instruments of Evidence. CHAPTER I. Of Witnesses, and the Means of procuring their Attend- ance . . • 306-325 CHAPTER II. Of the Competency of Witnesses 326-430 CHAPTER III. Of the Examination of Witnesses 431-469 CHAPTER IV. Of Public Documents ■ 470-498 CHAPTER V. Of Records and Judicial Writings 499-556 CHAPTER VI. Of Private Writings 557-583 INDEX TO CASES CITED, A. Section Abbey v. Lill 440 Abbot V. Inhabitants of Hermon 197 V. Massie 291 V. Plumbe 569, 572 Abbott V. Mitchell , 385 Abby V. Goodrich 428 Abeel v. Padcliff 268 Abney v. Kingsland 51 a, 109 Abrahams v. Bunn 414, 422 Aeerro et al. v. Petroni 435 Acker v. Ledyard 564 Ackroyd & Warburton's case 230 Adampthwaite v. Synge 509 Adams v. Balch 538 V. Barnes 531, 536 V. Betz 502, 509 V. Broughton 533 t?. Cuddy • 397 V. Davis 416 V. Field 581 V. French 109 V. Frye 668 V. Gardiner 420 D.Kerr 572,575 t). MuMillon 268,269,551 V. Pearson 534 V. Power 73 V. Sanders 212 «). Stanyan 145,570 u7Worldley 275 Addams w. Seitzinger 122 Addington v. Magan 66 Addis V. Van Buskirk , 66 Aflalo V. Fourdrinier 356 Agawam Bank v. Sears 564 Agriculturist Co. v. Fitzgerald 568 Aiken v. Kilburne 237 Aiteheson v. Maddock 80 Aitken, Ex parte 238 Alban v. Pritchett 185, 341 Alcoek V. Cooke 239 V. Whatmore 6 Alden v. Dewey 352 Alderson v. Clay 42, 97, 197, 198 Aldrich V. Kinney Aldworth's case Alexander v. Gibson V. Harris V. Moore Alivon V. Furnival Allan V. Comstock Allcott V. Strong Allegheny v. Nelson Allen V. Allen V. Bennett v. Denstone V. Duncan ■• V. Furbish V. Hawks V. Kingsbury V. McKeen V. Sayward Section 548 502 543 58 305 546 292 112,177 5, 20 301 268 113 108 281, 284 392,420,430 293 197 24 V. The Portland Stage Co. 125 V. Watson 489 Allingtou V. Bearcroft 392 Allmore v. Mills 505 Alna V. Plummer . 264 Alner v. George 1 72, 1 73, 305 Alston V. Taylor 1 20 Alvord V. Baker 38 Amey v. Lon^ 246, 309, 558 Amherst Bank v. Root 572 Amick V. Oyler 535 Anderson v. Brock 333, 427 V. Caldwell 533 V. Hamilton 251 V. Long 54, 55 V. Kobson 558 V. Root 563 V. Saunderson 185 V. Weston 121 Andrews v. Andrews 319 V. Beeker 173 V. Brown 634 e. Palmer ' 168 V. Solomon 239 V. Vanduzer 55 Angus V. Smith 462 Ankerstein v. Clarke 69 xxu INDEX TO CASES CpTED. Section Annandale (Marchioness of) v. Harris 23 Annesley v. D. of Anglesea 87, 244 Anon. V. Moore 55 Anscombe v. Shore 137, 405 Anthony v. The State 156 ApoUon (The) 6 Apothecaries Co. v. Bentley 79 Appletou V. Boyd 172, 330, 452 V. Ld. Braybrook 514 Section Atto.-Gen. V. Pearson 295 V. Proprietors Meet- ing-house, &c. 46 V. Shore 295 V. Theakstone 479, 492 Attwoodi). Small 171 V. Welton • 369, 370, 450 Aubert v. Walsh 38 Audley's (Ld.) case 343 Augusta (Bank of) v. Earle 5, 43 Arbouin v. Anderson 81 a V. Windsor 115 ,116 Archer v. English 205 Austin V. Bostwick 112 V. Walker 205 V. Chambers 171 Arding a. Flower 316,317 V. Rumsey 572 Armory v. Delamirie 34,37 D. Sawyer 271 Armstrong v. Hewitt 485 V. State 445 Arnfield v. Bates 60 V. Vesey 237 Arnold v. Arnold 369 528,531 V. Willes 384 V. Bp. of Bath and Wells 484 | Australasia (Bank of) v Mas 546 V. Cessna 281 Avery v. Pixley 273 V. Jones 568 V. Stewart 288 u. Redfern 546 Aveson v. Kinnard 102, 1 56, 254 ,337 V. Eivoult 69 Ayers v. Hewitt 569 V. Tourtelot 498 Arrison v. Harmstead 568 B. Arundell v. Arundell 554 V. White 513 Babb V. Clemson 180 ,568 Ashley V. Ashley 86 Backhouse v. Middleton 552 V. Woloott 64 Bacon v. Charlton 102 ,205 Ashmot'e v. Hardy 97,204 V. Chesney 187 Ashton V. Parker 361 V. Williams 581 Aslin V. Parkin 535 Badger v. Titcomb 532 Aston V. Perkes 81 Bagot V. Williams 532 Astor V. Union Ins. Co. 280 Bailey v. Bailey 392 Atalanta (The) 31 V. Hyde 55 Atcheson v. Everitt 328 371,374 V. Lumpkin 386 Atherford v. Beard 475 ». Musgrave 73 Atkins V. Hatton 485 V. Taylor 564 V. Sanger 174 Bailiffs of Tewksbury v. Brick- V. Tredgold 174, 176 nell 58 Atkinson v. Cummins 290 Baillie v. Hole 892 ,430 Atlantic Ins. Co. «. Conard 332 V. Jackson 485 Mut. Ins. Co. u. Fitz- Bain v. Mason 493 patrick 323 Bainbridge v. Wade 289 Atto.-Gen. v. Boston 293 Baird v. Cochran 452 V. Bowman 54,55 Baker v. Arnold ' 245 V. Briant 250 V. Blunt 574 V. Bulpit 432 I'. Dening 272 V. Clapham 280 V. Dewey 26 V. Davison 554 V. Haines 581 V. Drummond 295 V. Milburn 121 V. Glasgow College 295 V. Rand , 532 V. Hitchcock 433, 449, V. Ray 37 461 V. Tyrwhitt 395 ,428 V. Jeffreys . 60 Balcetti v. Sefani 62 V. Parnther 42,81 Baldney v. Ritchie 560 INDEX TO CASES CITED. XXlll Section Baldwin v. Carter 287 V. Dixon 397, 398 V. Hale 548 Balfour v. Chew 505 Ballard v. Noaks ' 357 V. Walker 304 Balls V. Westwood 25 Balston v. Benstead 17 Bamfield v. Massey 54 Banbury Peerage ease 28, 81 Bank v. Steward 114 Bank of Woodstock v. Clark 108 Banks v. Farquharson 572 V. Skain 420 Barada y. Caundelet 331 Barbat v. Allen 334 Barb v. Fish 533 Barber v. Gingell 200 V. Goddard 329 V. Holmes 484, 493' V. Watts 505 Baring!). Clarke 113 V. Reeder 342 Barker v. Dixie 334, 340 U.Haskell 117 V. Macrae 416 V. Kay 37, 116, 147, 149 Barlow v. Dupuy 510 r. Vowell 167,418 Barnard v. Darling 302 Barnes v. Camack , 337 V. Harris ♦ 238, 239, 241 V. Lucas 207 V. Mawson 137, 139 ». Trompowsky 572 Baron de Bode's case 109 Barough u; White .171,191 Barr v. Gratz 142, 144, 539 Barrett v. Allen 288 V. Buxton 284 w. Gore , 356,547 V. Rogers 305 V. Thorndike 265, 568 V. Union Mut. Fire Ins. Co. 281 Barretto v. Snowden 391 Barrington v. Bank of Washing- ton 564 Barrick v. Austin 1 74 Barrow v. Humphreys 319 Barrs v. Jackson 550 Barry v. Bebbington 150, 153 V. Ransom 281 V. Ryan 569 Barstow's case 218 Section Barthelemy v. The People 108 Bartlett v. Decreet 101 V. Delpratt 100, 180 V. Emerson 109 V. Pickersgill 363 V. Smith 49 V. Wyman 281 Bas V. Steele 559 Bassw. Clive 107,196 Bassett v. Marshall 86 V. Porter 80 Batchelder v. Sanborn 118 Bate V. Hill 54, 458 V. Kinsey 241, 562 V. Russell 356, 358 Bateman v. Bailey 108, 180 Bates V. Barber 461 V. N. Y. Ins. Company 173 V. Ryland 423 V. Thompson 532 Bateson v. Hartsink 246 Bathews v. Galindo 207, 339 Battin ». Bigelow 41 Battles M. Batchelder 110 V. HoUey 46, 84 Batturs v. Sellers 199 Bauerman v. Radenius 172 Baxter v. Graham 398 V. Rodman 422 Bay V. Gunn 40Q Bayard v. Malcolm 275 Bayley v. Osborne 427 V. Taylor 564 V. Wylie 516 Baylies v. Fettyplace 58 Baylis v. The Atto.-Gen. 291 Bayne v. Stone 89 Baynes u. Forrest 70 Beach i». Mills 118 V. Packard 26' Beachcroft v. Beaehcroft 288 Beal V. Nichols 445 Beale v. Commonwealth 19 V. Thompson 322 Bealey t'. Shaw 1 7 Beallt). Beck' 187 Beaman v. Russell 564 Beamon v. Ellice 432 Bean v. Quimby 241 Bearce v. Jackson 24 Beard v. Talbot 145 B^rdsley v. Richardson 108 Beasley v. Bradley 358 V. Mawrath 1 79 Beauchamp ». Tarry 190 XXIV INDEX TO CASKS CITED. Beaumont v. Fell Section 291 V. Field 277 V. Mountain 481 Beaver v. Lane 69 Beebe v. Parker 130,139 Beckley v. Freeman 392, 430 Beckrow's case 668 Beckwith v. Benner 245 V. Sydebotham Becquet v. McCarthy Bedell v, Kussell 440 546 76 Beech's case 65 Beeching v. Gower 421 Beidelman v. Foulk 397 Beitz V. Fuller 112, 174 Belden v. Lamb 51 a V. Seymour Bell V. Ansley u. Bruen 26 180 284 t>. Chaytor V. Firemen's Ins. Co. 571 288 V. Hull Railw. Co. 430 V. Martin 287 V. Morrison 112, 174, 323 V. Smith 395 Bellamy v. Cains 347 Bellew V. Russell 347 Bellinger D. The People 451,463 Billinger's case 224 Bellows V. Ingraham 548 Beltzhoover v. Blackstock 240 Benaway v. Conyne 432 Bendc Georgia Ins. Co. 292 Bender v. Fromberg 180 Benjamin v. Hathaway 452 ». Porteus 115,416 V. Sinclair 305 Benner v. Frey 73 Bennet v. Watson 813,319 Bennett v. Francis 205 V. Holmes 532 V. Hyde 55 V. Morley 548 V. Bobinson 167 V. Runyon 31 V. State 369 V. Tennessee, 6 V. Watson ' 319 V. Womack 49 Bennett's case 228 Bent V. Baker 167, 390, 418 Bentley v. Cooke 334, 339, 343 u. HoUinback 118 Benton v. Burgot 548 Bentzing v. Scott 73 Section Berd v. Lovelace 237 Bergen v. Bennett 46 Berkley Peerage case 104, 125, 128, 131, 133,134 Bermon v. Woodbfidge 201 Bernasconi v. Farebrolher 181 Berrington d. Dormer v. Fortes- cue 359, 360 Berry v. Banner 139 Berryman v. Wise 58, 83, 92, 195 Berthon v. Loughman 441 Bertie v. Beaumont 142, 154 Berwick v. Horsfall 277 Bests U.Jones 427 Betham i>. Benson 113 Betts V. Badger 571 V. Bagley 648 V. Star 535 Bevan v. Waters 241, 245 ' V. Williams 195 Beveridge v. Minster 254, 337 Beverly v. Craven 144 Beverley's ease 189 Bibb V. Thomas 273 Bicknell v. Hill 498 Biddisw. James , 480, 489,- 505 Biddulph V. Ather 139 Bigelow V. Collamore 277 V. Winsor 532 Biggs V. Lawrence 284 Bilbie t). Luniiey 212 Billings V. Billings 281 BinglMim v. Cabot 491 V. Dickey 65 V. Rogers 348 V. Stanley 81 Birch V. Depeyster 280 Bird V. Hueston 148 V. Randall 531 Birt V. Barlow 107, 493 V. Kershaw 391, 416 V. Rothwell 6 V. Wood 395 Bishop «. Chambre 504 V. Cone 484 V. Dotey 271 Bissell V. Briggs 542, 548 V. Edwards 505 V. Morgan 81 a Bixby V. Franklin Ins. Co. 494 Black V. Ld. Braybrook 70, 514 V. Lamb 115, 172, 284 Blackburn v. Scholes 205 Blackburne v. Hargrave 311 Blackett v. Lowes 187 INDEX TO OASES OITED. XXV Section Blackett v. Weir 356, 389, 395 Blac'kham's case 550 Blackwell v. Bull 288 Blad V. BamfieW 541,542 Blade v. Nolan 568 Blair v. Seaver 369 Blake v. Doherty 288 V. Pilford 251 V. Kuss 563 V. Sanderson 25 V. White 109 Blakemore U.Glamorganshire 536, 537 Blanchard v. Ellis 24 V. Young 74, 91, 561 Bland v. Hasselrig 1 1 2 V. Swaflford 319 Blaney v. Rice 301 Blantern v. Miller 349 Blewett V. Tregonning 468 Bligli V. Brent 270 Blight «. Fisher 316 Blight's Lessee v. Rochester 25 Bliss V. Mclntire 568 v. Mountain 397 Bliven v. N. England Screw Co. 293 Blodgett V. Jordan 505 Blood V. Goodrich ' 304 V. Rideout 108 Bloodgood V. Jamaica 175, 331 Bloor V. Da vies 392 Blossom V. Cannon 20, 46 Blower J). Hollis 511 Bloxam V. Elsee 96 Blundell v. Gladstone 291 Blurton v. Toon 572 Blythe v. Sutherland 145 Boardman v. Reed 301 Bodine's case 13 a Bodwell V. Osgood 8 V. Swan 55 Bogardus v. Trinity Church 145 Bogart V. Brown 560 Bogert V. Cauman 275 Boileau u. Rudlin 171,551 Bolin V. Mellidew 320 Bolivar Man. Co. v. Neponset Man. Co. 17 Bolles V. Beach 573 Bolton V. Bishop of Carlisle 568 V. Corp. Liverpool 238, 240, 244 Boltz V. Ballman 39 Bond V. Fitzpatrick ' 190 V. Ward 180 Boorman v. Brown 394 VOL. I. c Section Boorman v. Johnson, 275, 258 Boorne's case 214 Boothby v. Stanley 564 Boothwick V, Carruthers 81 Boston V. Weymouth 150, 570 Boston & Wore. R. R. Corp. v. Dana 93, 108, 197, 252a, 469 Boston & P. R. R. v. Midland R. R. 258 Boston & Wore. R. B. Corp. u. Old Colony K R. Corp. 440 Bostwick u. Leach 271 Boswell V. Smith 38 Bosworth V. Crotchet 122, 153 Botham v. Swingler 95, 422 Botsford V. Moorhouse 265 Bottomley u. Forbes 292 V. United States 53 V. Wilson 391, 401 Boucher v. Lawson 488 Bouldin v. Massie 558 Bound V. Latjirop 1 74 Bourne v. Boston 561 V. Gatliffe 293 V. Turner 406 Bours u. Tuckerman 316 Bowditch V. Mawley 69 Bowen v. Bell 62 Bower v. The State 218 Bowerbank v. Monteiro 283 Bowlby t>. Bell 267 Bowles V. Neale 8 1 Bowman o. Norton 239 V. Noyes 356 V. Rostron 211 V. Sanborn 322, 484, 577 V. Taylor 22 V. Woods 440 Bowsher v. Calley 180 Boyd V. Ladson 118 V. McConnell 556 V. McLean 266 Boydell v. Drummond 112, 268 Boyden v. Burke 108 !;. Moore 110,205 Boyle V. Wiseman 451 Boy nton u. Kellogg 54,461 V. Willard 40 Boys V. Williams 291 Brace v. Ormond 474 Brackett v. Mountford 569 a V. Norton 488, 489 Bradford v. Manley 305 a Bradlee v. Neal 353 Bradley v. Arthen 491 XXVI INDEX TO CASES CITED. Section Bradley v. Bradley 527 a, 578 V. Goodyear 118 V. Holdsworth 270 V. Neal 356 V. Ricardo 443 Bradshaw v. Bradshaw 289, 290 Bradstreet v. Neptune Ins. Co. 18, 541 Brain v. Preece 116 Brainard v. Buck 197 V. Clapp 80 Brandao v. Barnett 5 Branden v. Gowing 242 Brander v. Ferriday 138 Brandige.e v. Hale 420 Brandon u. Cabiness 171 Brandram v. Wharton 1 74 Brandt v. Klein 241, 245 Brard v. Ackerman 241 Brashier ti. Jackson 73 Brattle St. Ch. v. BuUard 17 V. Hubbard 189 Bray (The) Peerage 20 Brazen Nose College v. Salisbury 88, 491 Brembridge v. Osborne 38 Breton v. Cope 97, 484 Brett V. Beales 137, 139,-143, 481 Brewer t). Brewer 109 V. Knapp 38 u. Palmer 87, 96 Brewster v. Countryman 303 D. Doan 115 Briant v. Eicke 73 Bridge v. Eggleston 53, 180, 397 V. Gray 112, 532 V. Wellington ' 423 Bridges v. Armour 354 Bridgew^ter's (Ld.) case 497 Bridgman v. Jennings 189 Briggs ». Crick 397,398 V. Greenfield et al. 357 V. Wells 532 Brigham v. Palmer 569 V. Peters 114, 577 V. Rogers 281, 303 V. Smith 24 Bright V. Sugg 73 Brighton V. Walker 322 Brind v. Dale 81 Brinkerhoffw. Eemson 272 Brisco u. Lomax 189 Brister v. State 214 Bristol u. Dan 171 V, Slade 332 Section Bristow V. Wright 51, 58, 60, 63, 66 Bucknam v. Barnum 177 Bulkley v. Landon 68 Bull V. Loveland 246, 452 V. Strong 356 BuUard v. Briggs 266 BuUen v. Michel 139, 142 Bullock V. Koon 87 Bunbury v. Bunbury 239, 240 V. Mathews 92 Buckler v. Millard 284 Buckley v. Beardsley 268 Buckminster K. Perry 77 Britton's case 226 Broad v. Pitt 247, 248, 249 Brock V. Kent 182 u.Milligan 369,370 V. Sturdivant 303 Brockbank v. Anderson . 423 Brocket v. Foscue 26. Brogy V. Commonwealth 163 Bromageu. Prosser 34 Bromfield «. Jones 51 Brooks u. Barrett 75, 77 V. Bemis 70 V. Blanohard 73 V. Lowry 68 !). Tichburne 581 a V. White 805 Broom v. Bradley 394 V. Wootom 533 Brotherton & Livingston 358, 373 Brown v. Bellows 443, 444, 462 U.Brooks 292 V. Brown 280, 356, 395, 429 V. BurneS 858 V. Bryn6 292 V. Cambridge 305 V. Edson 505, 513 V. Getchell 316 V. Hicks 485, 493 V. Howard 358 «. Kimball 574 V, King 42 V. Lasselle 341 V. Leeson 253 V. Lynch 420 V. Payson 245 V. Philadelphia Bank 5 V. Pinkham 602 V. Saltonstall 290 V. Slater 286, 287 V. The Independence 498 V. Thorndike 287, 288 V. Wood 19, 443 INDEX TO CASES CITED. XXVll Section Section Brown v. Woodman 83 Bustiu V. Rogers 118 Brown's case 218 344 Butcher v. Stuart 285 Browne v. Gumming 471 Butcher's Co. v. Jones 422 V. Murray 74 Butler V. Alnutt 40 Brune v. Thompson 6 V. Benson 436 Brunswick v. McKeen 20 u. Butler 428 Brush V. Wilkins 484 V. Carver 95, 422 Bryan v. Wear 483 V. Cooke 392 Bryant v. Rittenbush 858 V. Gale 280 t'. The Royal Exchange V. Moor 247 Ass. Co. 292 ,294 V. Tufts 421 Buchanan w. Moore 145 i). Warren 391,402 Bucher v. Jarratt V. Wright 116 Buck V. Appleton 35 Buttrick v. Holden 632 Bunker v. Shed 116 Butts V. Swartwood 369 Bunn V. Winthrop 288 Buxton v: Cornish 804 Bunnell v. Butler 461 Burbank v. Gould 26 Burohfield v. Moore 565 568 C. Burd V. Ross 416 Burden v. Cleveland 551 Cabot V. Givin 83,92 Burgess v. Lane 167 418 Caddy v. Barlow 471 V. Merrill 356 Cadwell v. The State 54 V. Steer 58 Cady V. Shepherd 112, 174 Burghart v. Angerstein 493 Cailland v. Vaughan 320, 324 Burgin u. Chenault 301 Caine v. Horsefall 280, 294 Burke «* Miller 447 532 Calder v. Rutherford 78 Burleigh v. Stott » 174 Calhoun v. Dunning 535 Burlen v. Shannon 525 Calkins v. Evans 260 Burley's case 229 Call V. Dunning 569, 572 Burling V. Patterson 572 Calvert v. Flower 563 Burn r. Miller 303 Cambridge v. Lexington 47 , 109, 293 Burnett v. Phillips 70 Camden v. Doremus 421 V. Smith 532 Cameron v. Lightfoot 210 Burnham v. Adams 118 Camoys Peerage (The) 105 V. Allen 74 Camp V. Dill 174 V. Ayre 564 Campbell v. Hodgson 281 V. Ellis 113 V. Phelps 533 V. Morrissey 309 I/. Rickards 441 Burns v. Burns 273 V. State 156 i>. Pay 118 V. Tousey 392 Burrell v. Nicholson 76 474 V. Tremlow 339 Burrough v. Martin 436 Canal Co. v. Railroad Co. 490 Burt V. Palmer 182 Cane v. Lord Allen 80 Burtenshaw v. Gilbert 273 Cannell v. Curtis 83,92 Burton v. Griffiths 49 Canney's case 165 V. Hinde 391 405 Cannon v. Jones 402 V. Issitt 112 Card w. Grinman 273 V. Plummer 436 437 Careless v. Careless 289 Burgoyne v. Showier 564 Carleton v. Patterson 108, 322 Busby V. Greenslate 397 V. Whitcher 427 Bush V. Railing 413 Carlisle v. Burley 392 Bushell V. Barrett 373 V. Eady 95, 422, 426 Bushwood V. Pond 58, 72 V. Garland 180 Bussard v. Levering 40 V. Hunley 462 XXVIU INDEX TO CASKS CITED. Section Carlisle (Mayor of) v. Blamire 211 Carlos V. Brook 461 Carmack v. The Commonwealth 180 Carmalt v. Post 440 Carmarthen, Mayor, &c. v. Lewis 73 Carne v, Litchfield 451 V. NichoU 109 Carpenter v. Groff 163 V. Hay ward 49 V. King 281 V. Leonard 101 V. Whal 54, 462 Carpenters, &c. of Shrewsbury V. Hayward 405 Carpmael v. Powis 239, 240 Carr v. Burdis ■ 571 V. Cornell 334 v. Gale 421 Carrington v. Carnock 516 V. Jones 155 V. Eoots 271 V. Stimson 822 Carriss v. Tattershall 564 Carroll V. Bowie 38 V. Norwood 144 V. The State 108 V. Tyler 116, 120 V. Waring 39 Carskadden v. Poorman 104 Carson's case 65 Carters. Bennett 196, 204,210,523 V. Boehem 440, 441 V. Buohanon 108 V. Jones 76 V. Pierce 408, 409 V. Pryke 52 V. Wilson 502 Cartwright v. Williams 426 Carver v. Jackson 22, 23, 189, 523 V. Tracy 173 In re 272 Gary v. Adkins 185 V. Gerrish 38 V. Pitt 577 Case V. Potter 118 V. Keeve. 523 Cass V. Cameron 409 Cassidy v. Stewart 6 Casson V. Dade 272 Cass's case 220, 222 Castellana v. Peillon 375 Castelli V. Groome 320 Castle V. BuUard 358 Casy V. O'Shaunessy 103 Gates V. Hardacre 451 Section Catlett V. Pacific Ins. Co. 484 Catlin V. Bell 284 Caton V. Lenox 165 Gator V. Stokes 498 Gatt !). Howard . 179,439 Caufman v. Cong, of Cedar Spring 145 Cavalier u. Collins 118 Cavan v. Stewart . 514 Cazanove v. Voughan 516, 553, 554 Central Bridge Corp. v. Butler 74 Chabbock's case 219, 222, 379 Chad V. Tilsed 293 .Chadsey v. Greene 182 Chadwiek v. Upton 402 Chafi"ee v. Baptist M. C. 272 V. Thomas 420 Chamberlain v. Carlisle 527, 531 V. Gorham 349 V. Willson 451 Chamberlain's case 311 Chambers v. Bernasconi 109, 115, 152 Champion v. Plummer 268 Champney's case 257 Champneys u. Peck 40,116 Chance v. Hine 423 Chandler v. GrieTies 5 V. Home ' 432 ■V. Le Barron 581 V. Mason 385 V. Morton 385 V. Von Boeder 49 Chanoine v. Fowler 5, 488 Ghapin v. Curtis ' 523 Chapman v. Beard 196 V. Chapman 103 V. Coffin 469 V. Cowlan 135 V. Emden 81 V. Graves 356, 357 V. Searle 207, 208 V. Twitchell 182 V. Walton 441 Chappell V. Bull 24 Ghardon v. Oliphant 112 Charlton v. Lawry 118 Charnock's case 379 Chase V. Hathaway 503, 513, 518 V. Jewett 281 V. Lincoln 440 V. Levering 357 V. Smith 120 V. Spencer 118 Ghatfield v. Fryer ] 38 INDEX TO CASES CITED. XXIX Section Chatfield v. Lathrop 423 Chaurand v. Angerstein 280, 440 Cheetham v. Ward 427 Chelsea Water- Works u. ^Cowper 21, 570 Chenango v. Birdsall 356 Cheney's case 289 Cherry v. Boyd 146 !). Slade 301 ,Chesley v. Frost 568 Chess V. Chess 163, 165,166, 168 Cheyne v. Koops 395 Child V. Chamberlain 358 V. Grace 199 , Childrens v. Saxby 34^ Childress v. Cutter 484, 493, 498 Chippendale v. Thurston 174 Chirac v. Keinicker 73, 237, 245 Chitty V. Dendy 6 Choate V. Burnham 293 Choteau v. Raitt 562 Christian u. Combe 212 Christie v. Bishop 178 Church V. Hubbart 4, 487, 488, 514 V. Sheltou 171, 195 Churchill v. Suter 379, 385 V. Wilkins 58 Churchman v. Smith 118 Cilley V. Tenny 303 Cincinnati v. White 207 Cist V. Zeigler 531 Citizen's Bank v. Nantucket Steamboat Co. 426 City Bank v. Adams 281 City Bank of Baltimore v. Bate- man lis, 332, 452 City Council v. King 331 City of London v. Clerke 139 ClafBn V. Carpenter 271 Clagett V. Philips 240 a Clancy's case 373 Clapp V. Balch 73 V. Mandeville 389 V. Tirrell 26 Clarges v. Sherwin 539 Clark ». Alexander 174 V. Barnwell 305 V. Bigelow 440 V. Bradshaw 112 V. Carter 426 V. Courtney 576 V. Eckstein 564 V. Paunoe 17 V. Gifford 284 V. Gleason 112 c* Section Clark w. Gray 66, 69 V. Hopkins 39 V. Houghman 191 V. Irvin 537 V. Johnson 428 u. Kirkland 392 V. Lucas 394, 397 V. Lyman 40 V. Magruder 116 V. Munyan 301 V. Saunderson 675 V. Spence 81, 348 V. Trinity Church 493 V. Vorce 437 %. Waite 180 V, Wilmot 116 Clark's case 65 Ex'rs V. Carrington 180 Ex'rs K. Reimsdyk 178,257, 260, 361 Lessee v. Hall 375, 376 Clarke v. Bank of Mississippi 489 V. Clarke " 196, 204, 207 V. Courtney 84,' 142 V. Gannon 408, 430 V. Robinson 551 V. Safferey 435 V. Wyburn 361 Clarkson v. Woodhouse 139, 141, 143 Clary v. Grimes 189 Claxton V. Dare 139 V. Swift 533 Clay V. Langslow 181 V. Stephenson 320 V. Williams 241 Clayton v. Gregson 280 Cleave v. Jones 237 Clealand v. Huey 164, 165 Cleaveland v. Flagg 301 Cleaves v. Lord 68 Cleveland v. Burton 200 Clement v. Brookes 467 V. Durgin 302, 304 Clementi v. Goulding 5 Clements u. Hunt 103 Clementsou v. Gandy 288 Clerke v. Isted " 69 Clermont v. Tulidge 581 Cleves V. Foss 269 Clifford V. Hunter 445 V. Parker 564 V. Turrill 285, 304 Clinan v. Cooke 269 Clineu. Little 427 Clinton v. Hooper 296 XXX INDEX TO CASES CITED. Section Clipper (The) v. Logan 440 Close V. Olney 451 Clothier v. Chapman 52, 137, 145 Cloutman v. Tunison 495 Clough V. Bowman 289 Cluggage V. Swan 116, 120 Clunnes w. Pezzey 37 Coates V. Birch 241, 245 Cobleigh v. Young 20 Coburn v. Odell 451 Cochran v. Ammon 358 Cocks V. Purdy 487 Cookshott V. Bennett 1 72 Coe V. Huttou 197 Coffin V. Jones 2^4, 338 Coghan v. Williamson 572 Cogswell V. DoUiver 118 Cohen v. Templar 246 Coit V. Milliken 4, 479 V. Starkweather 288 V. Tracy 112, 174 Colbern's case 340 Cole !). Anderson 118 V. Cole 192 V. Hawkins 316 V. Jessup 437 Cole's Lessee v. Cole 376 Coleman v. Anderson 20, 46 In re 272 V. Southwiok 101 v. Wolcott , , 349 Coles V. Trecothick 269 CoUett V. Lord Keith 193 Collier u. Nokes 192 V. Simpson 440 Collins ». Bayn tun 571 V. Blantern 284 V. Godefroy 310 V. Lemasters 437 V. Matthews 602 V. Maule 84 V. McCrummen 420 Colpoys V. Colpoys 288 Colsell V. Budd 39 Colson V. Bonzey 484, 494 Colt V. Miller 66 Columbia, Bank of, V. Magruder 423 Columbia Ins. Co. v. Lawrence 2 Columbia Man. Co. v. Dutch 353, 356 Colvin V. H. M. Proc. Gen. 80 Combe v. Corp. of London 240 a V. Pitt 210 Commercial Bank of Albany v. Hughes 387 Section Commercial Bank of Buffalo ti. Kortwright 568 a of Natchez v. Smith 206 Commonwealth v. Abbott 49 V. Anthes 49 V. Bachelor 369, 370 V. Baird 331 V. Beckley 65 V. Bigelow 97 v. Bolcom 513 V. Bosworth 381 V. Briggs 341 V. Bullard 284 V. Buzzell 52, 371, 449 V. Byron 450 V. CaU 199 V. Carey 577, 580 V. Casey 161 J V. Castles 573 6 V. Chase 484 V. Churchill 461 V. Clark 81 6 V. Cobb 138 V. Dame 373 u. Dana 254 a V. Davidson 563 V. Downing 382, 601, 513 V. Drake 229, 247 V. Dudley 266 V. Eastman .S58, 363, 446, 581 V. Eberle 233 V. Eddy 81 c K. Elisha 537 V. Emery 91, 561 V. Freely 316 V. Frost 414 V. Garth 49 V. Gibson 158 V. Goddard 449 V. Green 376, 376, 421, 505 V. Hargesheimer 430 V. Harman 220, 221 V. Harvey 197 V. Harwood 108 V. Hawkins 34, 81 c, 462 V. Hill 262, 366 V. Hills 870 V. Horton 637 V. How 223 INDEX TO OASES CITED. XXXI Section \ Commonwealth v. Hunt 449 !). Hutchinson 367 V. Kenney 197 199 V. Kimball 79 v.. King 158 V. Knapp 200, 229, 231, 379 V. Kneeland 5 V. Lahey 79 V. Littlejohn 484 u. Manson 335 , 363 V. Marsh 330, 334, 353 357 363 V. Maxwell 78 V. McKie 81 b V. McPike 108 , 158 V. Montgomery 108 V. Morey 219, 220, 223 V. Mosler 222 V. Moultou 412 V. Murphy 54 462 V. Noroross 86 V. Parmenter 65 V. Paull 403 V. Pease 284 V. Pejepseot Pro- prietors 24 V. Phillips 501 V. Porter 49 V. Richards 165 u. Eoark 509 V. Bobbins 341 u. Robinson 335 407 V. Rogers 81 c, 373 V. Samuel 78 V. Shaw 451 457 V. Shepherc 253 344 V. Smith 252, 370 V. Snell 362 V. Stow 80 V. Taylor 223 V. Thurlow 79 V. Tilden 252 V. Tuey 74 V. Turner 53 V. Vass 158, 159 V. Waite 414, 423 v. Walden 34 V. Webster 13 a ,18, 54, 65, 81 b, 576 V. Welch 442 V. Wilson 440, 469 V. Woelper 493 V. York 18, 816 Section Comparet v. Jernegan • 489 Comstook w. Hadlyme 74, 75, 76, 77, 409 V. Paie 392, 430 • w..Rayford 392 Connecticut v, Bradish 331 Conover v. Bell 452 Conrad v. Griffey 462 Conyers v. Jackson 71 Cook V. Ashmead 117 u. Booth 293 V. Loxley 207 V. Moore 53 V. Parsons 272 V. Remington 349 V. Soltan 46 < V. Stearns 270 V. Totton 21 V. Wood 84 Cooke V. Curtis 469 V. Jenner 533 V. Woodrow 672, 575 Cooley V. Norton 113, 450 Coolidge V. Learned 17 V. New York Fire- men's Ins. Co. 484 Coombs V. Coether 139, 484 V. Winchester 52, 449 Coon V. The State 215 Cooper V. Bocket 564, 580 V. Gibbon 37 V. Marsden 572 V. Morrell 118 V. Mowry 207 V. Shepherd 533 V. Smith 201, 268 V. Wakley 76 V. Whitehouse 73 Coote V. Berty ' 54 Cope t). Cope 28, 253, 344 Copeland u. Totoiin 171 V. Watts 246 Copes V. Pearce 103 Copp V. Upham 452 Corbett et al. v. Barnes 633 V. Corbett 75 Corbin v. Adams 113, 284 Corinth v. Lincoln 108, 192 Cornelius v. State 108 Cornell v. Green 165 V. Vanartsdalen 338 Cornish v. Pugh 341 V. Searell 207 Cornville v. Brighton 108 Cornwall 17. Isham 175,333 xxxu INDEX TO CASES CITED. Section Cornwall V. Richardson 55 | Corporations (the case of) 46 Corps V. Robinson 197 Corse V. Patterson 334 Corsen V. Dubois 246, 558 Corser v. Paul 197 Cort V. Birkbeck 139 Corwein v. Hames 331 Cory V. Bretton 192 Cossens v. Cossens 23, 26 Ex parte 451 Cossham v. Goldney 395 Coster V. Baring 559 Costigan v. Mohawk & Hudson R. Co. 74 Cotes V. Davis 185 Cottle V. Payne 39 Cotton V. James 76 V. Luttrell 358, 361 V. Witt 310 Cottrill V. Myrick 302, 440 Couch V. Meeker 283, 284 Coulson V. Walton 564 Counden v. Clarke 289 Courteen v. Touse 435 Courtnay v. Hoskins 54'^ Covanhovan v. Hart 163 Coveney v. Tannahill 245 Covington,&c. R.R. Co. u.Ingles 113 Cowden v. Reynolds 443 Cowling w. Ely 179 Cowper V. E. Cowper 37 Cox V. AUingham 518 V. Brain 205 V. Copping 474 V. Davis 572 V. Hill 452 V. Painter 73 V. Parry 27 V. Williams 385 Coxon V, Lyon 61 Coye V. Leach 30 Coyle V. Coyle 84 Crabtree v. Clark 564 Crafts V. Hibbard 301 Craib i). D'Airth 173 Craig V. Brown 505, 506 u. Cundel 392 Craigin v. Carleton 527 a Crane ii. Marshall 109, 570 V. Morris 23 Crary v. Sprague 163 Craven's case 65 Cravin v. Shaird 118 Crawford v. Morrell 56 Section Crawford v. Spencer 281 Cray v. Halls 201 Creamer v. Stephenson 285 Crease v. Barrett 103, 128, 130, 136, 139, 153, 189 Creeby i'. Carr 445 Creed, In re 41 Crenshaw v. Davenport 51 a Crew V. Blackburn 475 V. Saunders 475 Griddle v. Criddle 190 Crippen v. Dexter 469 Crisp V. Platel 240 Crispin v. Williamson 60 Critchlow V. Parry 196 Crocker v. Crocker 289 Crofton V. Poole 195 Crofts V. Marshall 280 Cromack v. Heathcote 240, 241 Cronk V. Frith 572 Crosby v. Percy 292, 572 ' y. Wadsworth 271 Cross V. Kaye 92, 1 95 Crossfield's case 255 Croudson v. Leonard 5, 541 Croughton v. Blake 142 Crowley v. Page 52, 81, 449, 462 Crowninshield v. Crowninshield 74, 75, 76 Crowninshield's case 111 Crowther v. Hopwood 373 Cubbison v. McCreary 369 Cudlip i'. Rundle 60 Culkin's case 65 Cumberland Bank v. Hall 564 Cummin v. Smith 195 Cumming v. French 192 Cummings v. Arnold 302, 304 Cundell v. Pratt 454, 456, 459 CunlifFe v. Sefton 572, 574 Cunningham v. Knight 428 V. Otis 320 Cupper V. Newark 353 Curren v. Crawford 117 Currie «. Child 572 Curry v. Lyles 26 Curtis V. Belknap 573 6 V. Central Railroad 323 V. Graham 358, 389 I'. Groat 533 V. Riokards 38 V. Strong 369, 370 V. Wheeler 74 Curzon v. Lomax • 130, 139 Gushing V. Billings 74 INDEX TO CASES CITED. XXXUl Section Cushman v. Loker 375, 420 Cussons V. Skinner 569 a Cutbush V. Gilbert 84, 116, 120 Cutler V. Pope 271 Cutter V. Newling 187 V. Powell 292 Cutts V. Pickering 245 Cutts, in Error, v. United States 566 D. Da Costa v. Jones 253 Daggett «. Shaw 109 Dalison v. Stark 90 Dalrymple v. Dalrymple 488 Dalston v. Cotesworth 37 Dan ei a/. ». Brown 172,174,176, 273 Dana v. Fielder 292 Daniel v. North • 1 7 V. Pitt 182 V. Wilkin 142, 145 Daniels v. Conrad 449 V. Potter 111, 176 Dartmouth College v. Wood- ward 331 Dartmouth (Countess) v. Rob- erts 189 Dartmouth (Lady) v. Roberts 46, 512 Davenport v. Freeman 385 II. McKinhie 559 V. The Common- wealth 49 David V. Moore 348 Davidson v. Bloomer 572 V. Cooper 568 Davies v. Davies 408, 463 V. Humphreys 115, 152 V. Lewis 137 u. Lloyd 115, 147 V. Lowndes 105 V. Morgan 135, 154, 333, 395 V. Morris 333 V. Pierce 109, 147, 189 V. Kidge 1 76 V. Waters 241 Davis V. Barr 421 V. Barrett 320 V. Barrington _ 281 V. Campbell ' 109 V. Carlisle 564 & Carter's case 374 V. Dale 445 V. Dinwoody 334, 340 Davis V. Fuller Se 115 ction 130 V. Jenney n. Mason 75 564 440 V. Rainsford 301 V. Robertson 269 V. Salisbury V. Shields 349 268 V. Spooner 397 568 V. State 164 165 V. Todd 558 V. Wood 99 524 Daws V. Shed 187 Davlin V. Hill 283 Dawkins v. Silverlock 5 Dawson v. Coles 173 Day V. Trigg Dayrell v. Bridge Deacle v, Hancock 301 510 135 Deacon's case 256 Deady v. Harrison 180 Dean, &c. of Ely v. Caldecott 150 V. Dean 266 Dearborn v. Cross 302, 304 Deas V. Darby 118 De Bode's case 1 09 Decker, Ex parte 568 a Deering «. Sawtell 385 De la Chaumette v. Bank of Eng- land 81 a Delacroix v. Bulkley 303 Delafield v. Freeman 392 V. Hand 503 Delesline v. Greenland 27, 184 Dellone v. Rehmer 387 Deloah v. Worke 510 Delogny v. Rentoul 192 Den V. Clark 556 V. Downam 437 V. Herring 145 V. Johnson 341 y. Oliver 208 V. Southard 145 V. Vreelandt " 503 Denn v. Cornell 24 V. Fulford 507 V. McAlister 84 V. Page ' 301 , V. Spray 139 V. White 185, 341 Dennett v. Crocker 87 V. Dow 443 V. Lawson ' 426 Denning v. Roome 484 Dennis v. Codrington . 237 Dennis's case 225 INDEX TO CASES CITED. Section . Section Denslow v. Fowler 559 Doe V. Beynon 142, 291 Depeau v. Hyams 416 V. Biggs 197 Depue V. Place 581 V. Bingham 265, 406, 568 De Rosnie v. Fairlie 390 V. Bird 186 De Rutzven v. Parr 150, 134 V. Brawn 83 Desborough v. Rawlins 242, 244 V. Bray 104, 485 Descadillas v. Harris 416 V. Burdett 570 Deshon v. Merchants' Ins. Co. 469 V. Burt 287 Despau v. Swindler 6 V. Campbell 109 De Symonds v. De la Cour 394 V. Caperton 272 Devonshire (D: of) v. Lodge 293 V. Carpenter 272 Dewdney v. Palmer 421 V. Cartwright 89 , 90, 150, 484, Dewey v. Dewey 272^572 493 V. Field 207 V. Catamore 564 De Whelpdale v. Milburn 189, 210 V. Chichester 287, 291, 301 Dewhurst's case 228 V. CliflFord 560 Deybel's case 6 V. Cole 189 Dezell V. Odell 207 V. Cooke 46 Dicas V. Lawson 319 V. Coombs 81 Dickerman v. Graves 253 a, 335, V. Coyle 94 344 V. Davies 49, 103, 570 Dickenson v. Coward 195 V. Davis 272 V. Dickenson 192, 384 V. Deakin 41, 570 V. Fitchburg 440 a V. Derby 164 V. McCraw 519 V. Durnford 569 V. Prentiss 399 V. E. of Jersey 287 V. Shee 445,447 V. Edwards 73 V. Valpey 207 V. -Errington 73 Digby V. Stedman 116 V. Flemming 107 V. Steele 97 V. Ford 284, 285 Dillon V. Dillon 440 a a. Foster 164, 197 V. Harris 288 V. Preeland 286 Dillon's case 220 V. Galloway 301 D'Israeli v. Jowett 484 V. Gilbert 84, 241 Ditchburn v. Goldsmith 263 d. Gord V. Needs 290 Divol V. Leadbetter 195, 207 . V. Green 109 Dix V. Otis . 281 V. Greenlee 84 Dixon V. Cooper 115,416 V. Grey 561 V. Hammond 207 V. Griffin 41, 103 V. Sinclear 530 V. Gwillim 277 V. Vale 451 V. Harris 241 Doak V. Wiswell 532 V. Harvey 87 Dobbs V. Justices 108 V. Hathaway 574 Dodd V. Norris 54, 451 V. Hawkins 113 Doddington v. Hudson 409 V. Hertford 246 Doddington's case 26 V. Hilder 5 Doe V. Allen 197, 291 V. Hirst 568 V. Andrews ,245 V. Hodgson 560 V. Arkwright 484, 493 V. Holton 287 V. Askew 484 V. Hubbard 291, 301 V. Austin 109 ,189, 207 vi Huddart 535 V. Barnes 75, 92, 493 V. Hurst ^ 46 V. Bell 263 V. Huthwaite 288, 289, 291 V. Benson 280 V. Jack 84 V. Beviss 300 V. Jesson 41 INDEX TO CASES CITED. XXXV Section Section Doe V. Johnson 78 , 335, 573 Doe V. Sleeman 136 V. Joinville 288 V. Smart 75 V. Jones 10£ ,147,189 u. Smythe 207 V. Keeling 142 V. Somerton 561, 562 V. Keley 559 V. Stacy 154 V. Kemp 53 a 0. Staple 46 V. Lambly 280 V. Statbam 23 V. Langdon 241, 246 V. Steel 210 V. Langfield 109 V. Stephenson 469 V. Lea 208 V. Stiles 570 V. Lewis 558 V. Suckermore 576, 577, 579, V. Lloyd 24 580 V. Long 73 V. Syboum 46, 212, 551 V. Ld. Geo. Thynne 154 V. Tarver 578 V. Lyford 301 V. Taylor 291 V. Maisey 389 d. Taylor v. Roe 145 V. Manifold 272 V. Thomas 145, 246 V. Martin 277 287, 291 V. Tooth 333, 391 V. Mason 130 V. Turford 40 115, 116,120, V. Mew 518 147 V. Michael 154 V. Tyler 151, 386, 390 V. Miles 97 u. Vowels 116,151 V. Morgan 289 V. Wainwright 180 V. Murray 166 V. Watson 97 V. Nepean 41 V. Webber 109, 110 V. Newton 578, 580 V. Wheeler 286 V. PalBaer 564 V. Whitcomb 115, 151, 154 1). Passingham 144 V. Wilde 406 V. Payne . 25, 109 V. Wilkins 571 V. Pearce 142 V. Williams 147, 392, 406 V. Pegge 207 V. Wolley 21,570 V. Pembroke (E. of) 104 V. Wombwell 197 B. Penfold 42 V. Young Doherty v. Clark 92 V. Perkes 273 28 V. Perkins 43§ 437, 438 Doker v. Hasler 254, 337 V. Pettett 109, 189 Dolder v. Ld. Huntingfield 6 V. Phelps 144 Dole V. Allen 86 .;. Phillips . 141 Donaldson v. Jude 510 V. Preece 406, 534 V. Winter 509 V. Pulman 558 Doncaster v. Day 163 V. Pye 197 Donelson v. Taylor 421 V. B!andall 103 Donn V. Lippman Donnel v. Jones 546 V. Eeed 46 435 • V. Kichards 186 Donnohoo v. Brannon 506 V. Rickarby 109, 189 Doorman v. Jenkins 108 V. Roast 291 Dorlon v. Douglass 251 V. Roberts 142 Dome V. SoutEwork Man. Co. 114 V. Robson U6, 147, 153 Dorr V. Fenno 69 V. Roe 73 V. Munsell 284 V. Ross 84 ,245, 560, 582 Dorset (D. of) v. Ld. Hawarden 292 V. Rowiands 81 Dorsey v. Dorsey 189, 545 V. Samples 21 Doty V. Wilson 421,429 V. Seaton 241, 484 Douglas V. Hart 118 V. Shelton 23 V. Saunderson 104,349,575 V. Sisson 52, 130 Douglass V. Branch Bank 5 XXXVl INDEX TO CASES CITED. Section Section Douglass V. Mitchell 44 Dunn V. Murray 532 V. Reynolds 288 V. Packwood 386 V. Spears 268 V. Snell 190 V. Tousey 54 , 55, 461 ... The State 158 Dover v. Marston 378 V. Whitney 118 Dow V. Sawyer 116 Dunraven v. Llewellyn 145 Dowden v. Fowle 180 Dupuy V. Truman 93 437 Downer v. Rawell 436 Durell V. Bederley 441 Downs V. Cooper 25 Durham (Bp. of) v. Beaumont 469 Dows V. McMichael 531 Durore's case 65 Dowton V. Cross 181 Durston V. Tutham 60 Drake v. Henley 385 Dutton V. Gerrish 281 V. Merrill * 532 !). Woodman 112, 177, 467, V. Mitchell 533 532 Dranguet v. Proudhomme 74 Duval V. Bibb 26 Draper v. Garratt 60 Dwight V. Linton 288,322. V. Sykes 180 Dwinel v. Pottle 117 Drayton v. Dale 207 Dwinell v. Larrabee "- 561 V. Wells 163 Dwyer v. Collins 245 Drennen v. Lindsey 462 Dyer v. Ashton 205 Drew's case 219 V. Morris 432 Drew V. Wood 450 V. Smith 488 Drinkwater v. Porter 140 V. Tymell 348 Drouet v. Rice 20 Dyke v. Alridge 180 Drown v. Smith 207 Dyson v. Wood 513 Drowne v. Stimpson 349 Drummond v. Attorney-General 280 ' V. Magruder 506 E. b. Prestman 187 Drummond's case 156 Eagleton v. Gutteridge 568 Driimright w. Philpot 112 Earle v. Baxter 20 Du Barre v. Livette 239, 247 V. Lewis 142 Du Bost V. Beresford 100, 101 V. Picken 45 200 ,203 Duchess of Kingston's case 248,436, V. Sawyer 118 523 Easby v. Aiken 118 Ducket V. Williams 320 East V. Chapman 451 Ducoigne v. Sehreppel 118 East India Co. y. Campbell 451 Dudley v. Grayson 484 V. Evans 349 V. Sumner 572 V. Gossing 416 Duel V. Fisher 390 Eastman v. Cooper 532 Duffield V. Scott 180 V. Martin 105 Duffin V. Smith 240 , 241, 245 V. Tuttle 207 Dugan V. Seekright 301 V. Winship 167 ,418 Duke V. Pownall 427 Edge V. Pemberton 52 Dunbar v. Marden 572, 575 Edgell V. Bennett 254 V. Mulry 128 Edgerly v. Emerson 279 ,305 Duncan v. Beard 142 Edie V. East India Co. 5 V. Hodges 568 a Edmiston v. Schwartz 506 V. Mickleham 389 Edmonds v. Lowe 391 401 ,416 Dundas v. Ld. Weymouth 69 V. Rowe 371 Dunham's Appeal 440 V. Walter 485 Dunham v. Branch 426 Edward Altham's case 301 V. Riley 559 Edwards v. Crook 102 Dunlap V. Waldo 506 V. Matthews 76 Dunn V. Aslett 444,467 V. Weeks 302 INDEX TO C ASBS CITED. XXXVll Section Section Egg B. Barnet 38 Enterprise (The) 113 Egaleston v. Speke Eicke V. Nokes 179 Ephraims v. Murdoch 164, 165 241, 245 Ereskine'u. Murray 5 Eld V. Gorham 480 Ernest v. Brown 73 Elden v. Keddell 519 Erskine v. Boyd 322 Elder v. Warfield 118 V. Plummer 271 Elderton's case 6 Estill V. Taul 530, 631 Eldridge v. Knott 20,45 Estrella (The) 4 Eldridge's case 217 Eustis V. Parker 175 Elfe V. Gadsden 286 Evans v. Birch 80 Elkiu V. Janson 80 W.Eaton 389,421,423,562 EUicott V. Pearl 137 146 V. Getting 497 Elliott V. Evans 6 0. Gibbs 364 V. Heath 164 V. Gray 423 V. Piersol 103, 104 132 V. Hettick 365, 389 V. Porter 533 V. King 69 V. Smith 207 V. Morgan 107 Ellis V. Ellis 86 u. Rees 139, 313, 319 V. Saltau 249 V. Roberts 271 V. Smith 323 V. Smith 341 V. Thompson 292 V. Tarlfeton 548 V. Watson 210 V. Yeatherd 896 V. Willard 305 Everett v. Lowdhan 432 Ellison V. Cookson 296 Everingham v. Roundell 84 EUmaker v. Bulkley 445 447 Ewer V. Ambrose 442, 443 Elsam V. Faucett 54 102 Ewins V. Gold 392 Elston V. Wood 179 Exchange Co. v. Boyce 498 Elting V. Scott 212 Ex parte Kip 175 Elton V. Larkins 186 449 Elwood V. Deifendorf 189 420 P. Ely V. Ely 664 Emerson v. Blonden 185 Fabens'w. Tirrell 81 a V. Brigham 398 Fabyan v. Adams 822 V. Fisk , 562 Facey v. Hurdon 49 V. Murray 564 Fairchild v. Dennison 118 V. Providence 420 Faircloth v. Jordan 560 V. Tolman 570 Fairfield Turn. Co. v. Thorp 332 V. White 103 Fairhe v. Denton 198, 199 Emerton v. Andrews 396 V. Hastings 113, 114 Emery v. Berry 489 Fairmaner v. Budd 212 V. Fowler 165 523 Fairtitle v. Gilbert 24 V. Grocock 46 Falkner & Bond's case 217 V. Twombly . 472 Fdlls V. Belknap 175, 331 Emmerson v. Heelis 269 271 Falmouth (E. of) v. Robbins 564 Emmett v. Butler 356 ,358 (Ld.) V. George 405 Emmons v. Hayward 75 V. Moss 248 V. Littlefield 26 V. Thomas 271 V. Oldham 20 Farley v. King 652 Empson v. Griffin 73 Farmers' Bank v. Whitehill 115, 116, England v. Slade 25 147 Engles V, Brninfjton 57!! Farmers' & Mech. Bank v. Boraef437 English V. Sprague 513 V. Day 299 Ennis v. Smith 514 625 V. Ward 489 Enos V. Tuttle 108 Farnsworth v. Briggs 518, 519 Ensign v. Webster 212 Farr v. Swan 485 VOL. I. d XXXVIU INDEX TO CASES CITED. Section Section Farrant v. Spencer 288 Fitler v. Shotwell 485, 493 Farrar v. Farrar 265 Fitzgerald v. Elsee . 572 ■V. Merrill 46 V. Fauconberg 564 V. StaokpolQ 286, 293 Fitzhugh V. Wiman 305 ,v. Warfield 440 Fitzwalter Peerage 580 Farwell v. Hillard 539 Flagg 11. Mann 421 Fassett v. Brown 572 V. Mason 109 Faucort v. Bull 396 Fleming v. Gilbert 302, 304 Faunce v. Gray 176 V. Gooding 207 Faxon v. Hollis 117, 118 Fletcher v. Braddyl 40 Fay V. Prentice 5 V. Froggatt 201 Fazakerly v. Wiltshire 6 V. Willard 305 o Feemster v. Eingo 5 Flight, Ex parte 285 Fellows V. Williamson 108 Plindt V. Atkins 514 Felter v. Mulliner 510 Fllnn V. Calow 281 Fenn v. Granger 330, 353, 354, 452 V. M'Gonigle 558 Fenuer v. Lewis 187 Flint V. AUyn 356 Fenno v. Weston 199 Flourenoy v. Durke 648 Fenwick v. Bell 440 Flower v. Herbert 204, 207 V. Eead 154 Floyd V. Bovard 445 V. Reed 239 Fogg V. Child 114 ' V. Thornton 179 V. Dennis 581 Fenwick's case 251 Folkes V. Chadd 440 Ferguson v. Harwood 56, 68, 69, 506 Follain v. Lefevre 6 V. Mahon 546 Folsom V. Manchester < 252 o Fernandis & Hall v. Henderson 369 V. Mussey 304 Ferrer's case 19 Fonnereau v. Poyntz 288 Ferrers v. Arden ■ 533 Foot V. Glover 532 V. Shirley 577 V. Tracy 55 Fetherly v. Waggoner 570 Foote V. Cobb 572 Fiedler v. Smith 66 V. Hayne 239 Field V. Holland 178 Forbes v. Wale 21, 144 , 349, 570 V. Mitchell 394 Ford V. Ford 461 V. Snell 428 V. Gray 23 V. Winslow 69 Forrest v. Shores 26 Fifield V. Smith 422 Forrester u. Pigou 167, 392, 395, Filmer v. Gott 284 418 Finch V. Bp. of Ely 474 Forshaw v. Lewis 559 Finn's case 163 Forster v. Hale 266 Firkin v. Edwards 562 Forsyth v. Gaiison ^ 176 Fischer v. Morse 329 Forsythe v. Norcrosa 117 Fish V. Hubbard 300 Fort V. Clarke 104, 204 V. Skut S4 Fortescue & Coak's case 349 V. Travers 75, 76 Foss V. Haynes 456 Fisher v. Bartlett 207 Foster v. Alanson 303 V. Dane 18 I/. E. of Derby 536 V. Kitchingman 510 V. Hall 237, 240, 241 V. True 190 V. Jolly 281, 304 V. Tucker 112 V. Maokay 558 V. Willard 421 V. Pierce 451 Fiske V. Ronald 451 u. Pointer 562 Fitch V. Bogue 349, 558 V. Shaw 166, 639 V. Hill 342 V. Sinkler 118 V. Smallbrook 875 V. Trull 521 Fitchburg Bank v. Greenwood 288 | Foster's case 65 INDEX TO CASES CITED. XXXIX Section Fotheringham v. Greenwood 387, 395 Poulkes V. Selway 54, 101 Fountain v. Coke 347 V. Young 241 Fo-vvler u. Coster 75, 76 V. Etna Ins. Co. 54 V. Merrill 323 V. Savage 539 Fox V. Adams 347 V. Clifton ■ 207 V. Jones 472 V. Keil 569 V. Whitney 385 V. Widgery 25 Foxoroft V. Nevens 187, 356 France v. Lucy 562 Franchot v. Leach 284 Francia's case 217,, 235 Franklin Bank a. Freeman 416 Fraser t'. Harding 430 V. Hopkins 494 «. Marsh . 179, 427 Frazier v. Laughlin 356 Frear v. Evertson 172, 329, 347, 353 V. Hardenbergh 271 Free v. Hawkins 281 Freeholders, &c. v. State 20 Freeland v. Heren 19.7 Freeman v. Arkell 252 V. Brittin 385 V. Lucket 387 V. Morey 40 !). Phillips 132, 135, 139 V. Thayer 20 V. Walker 210 French v. French 550 Friedlander v. London Assur. Co. 443 Frith V. Barker 280 Frontine v. Frost 80 Frost V. Everett 304 V. Holloway 459 V. Shapleigh 521 V. Spaulding 301 Frye w. Barker 118,174 V. Gragg 164 Fuller V. Crittenden 212, 305 V. Hampton 175, 192 V. Rice 322 v. Wheelock 417 Fulton V. Hood 440 Fulton Bank v. Stafford 447 Furber v. Hilliard 362 Furbush V. Goodwin 305 Furly V. Newham 312, 320 Furman v. Ray 118 Section Furneaux v. Hutohins 52 Farneaux's case 65 Fursden u..Clogg 113, 149, 152 Fyler v. Givens 268 Fyson v. Kemp 508 Gabay v. Lloyd 292 Gainsford v. Grammar 245 Galbraith v. Galbraith 423 Gale V. Nixon 268 Galena, &c. R. R. Co. v. Fay 108, 462 Garden v. Creswell 319 Gardere v. Columbian Ins. Co. 514 Gardiner v. Croasdale 61 V. McMahon 113 Gardner v. Way 118 Garey v. Nicholson 201 Garlock v. Geortner 38 Garnett v. Ball 184 Garrels v. Alexander 577 Garrett v. Stewart 26 Garrott v. Johnson 165, 532 Garth V. Howard 113 Garwood v. Dennis 24 Gass V. Gass 1 75 V. Stinson 421, 445, 461, 554 Gathercole v. Miall 558 Gay V. Bowen 112 Geach V. Ingall 73, 76 . Gebhardt v. Shindle 430 V. Skinner 365 Geery v. Hopkins 474 Gelston V. Hoyt 541, 543 Gening v. The State 79 George v. Joy 305 a, 436 V. Kimball 409 V. Pierce 167 V. Sargent 356 V. Stubbs 423 V. Surrey 577 V. Thompson 562 Gerrish v. Cummings 356, 357 V. Sweetser 192 V. Towne 287 Getchell v. Heald 1 74 Geter «. Martin 119 Gevers v. Mainwaring 394, 41 7 Geyer u. Irwin 316 Gibblehouse v. Strong 109, 190 Gibbon V. Coggau 97 V. Featherstonhaugh 38 Gibbon's case ' 484, 493 xl INDEX TO CASES CITED. Section Section Gibbons v. Powell 562 Goodman v. Harvey 81 a Gibbs V. Bryant 358 ,427 V. James 606 Gibney's case 229 Goodrich v. Longley 281, 286 Gibson v. Hunter 53 Good right v. Hicks 55 V. Jeys 80 w. Moss. 103, 134 , 253, 344 V. McCarty 362 V. Saul 106 V. Peebles 121 V. Straphan 568 a «. -Stevens 6 Goodtitle v. Baldwin 45 . Rookwood 461 V. Mahew 257 V. Row 223 V. Martin 54 484, 493 V. Rowland 363 V. Mashiter 280 V. Rowley 165 V. Mayor 536 V. Rudd 335>386, 413 V. Mayor of London 331 V. Russell 319, 559 V. Mead 156, 343 V. Rytou 21 V. Merceron ■ 193 V. Sadler 311 V. Merchant Tailors 474 V. Saunders 224 V. Miller 6 ». Scaife 159 V. Mills 220,222 V. Scammonden 285, 305 V. Moore 381 y. Searle 440 V. Morgan 371,578 V. Sergeant* 336, 343 V. Morris 512 V. Sextons 222 V. Morton 558 V. Shaw 225, 229, 237 V. Mosley 158 V. Shelley 83, 475, 478 V. Mudie 257 a V. Shepherd 222 V. Mutineers 363 ./. Sheriff of Chester 473 V. Neale 381 V. Sherman 363 I V. Neville ' ' 209 V. Shipley . 18 V. Noakes 381 V. Simons 45 200, 224, 229 V. Northampton 53 V. Simpson 222, 223 V. North Pendleton 493 V. Slaney 451 V. Nuneham Courtney 125 V. Slaughter 223 V. Nutt 36 V. Smith 53, 243, 335, 473, V. Oldroyd 442, 444 482, 508, 513 ■o. Page 558 V. Smith & Homage 224, 225 V. Paine 218 V. Smithie 215 V. Parker 257 a V. Spencer 223, 512 V. Parratt 222 u. Spilsbury 158 160, 227, 229 V. I'artridge 34 220, 222 V. Steptoe 218 V. Pedley 440 V. Stevens 39 V. Pegler 451 V. St. Martin's 436, 437 V. Phillips 28 V. St. Mary Magdalen, Ber- V. Picton 488 mondsey 333, 347 V. Pike 157, 367 V. Stone 78 V. Pippitt 70 V. St. Panoras 531, 534 V. Pitcher 458, 460 V. Sutton 5,139,491 V. Plumer 40, 198 V. Swatkins 222, 228 V. Pountney 222, 223 V. Tarrant 90, 228 V. Pratten 78 V. Taylor 222, 223 V. Pressly 90, 228 v. Teal 383,458,459 V. Priddle 373 V. Teasdale 412 V. Purnell 474 u. Tellicote 228 V. Ramsden 437 V. Thanet 364 V. Eawden 87 V. Thomas 219, 223 V. Read 227, 228 V. Thornton 222, 225, 229, V. Reading 344, 457 230 V. Reason et al. 156, 159,161 V. TiUy 403 INDEX TO CASES CITED. Ixiii Section Section Rex V. Tower 473 Rich V. Jackson 265, 281 V. Tubby 225 V. Topping 399 V. Turner ' 78, 79, 233 | Richards v. Bassett 130 131, 137 V. Twining 35,41 V. Howard 118 V. Tyler 218, 223 Richardson v. Allen 443 V. Upchurch I'. Upper Boddington 222, 223 V. Anderson 173,487 239 V. Carey 116,389 V. Van Butchell 158, 160 V. Dosborough 260 a V. Vaughan 432 V. Fell 81 V. Verelst 83, 92 V. Freeman 333, 427 V. Virrier 257 a V. Hooper 303 V. AVade 367 V. Hunt 387 V. Walker 225 V. Learned 341 V. Walkley 218, 223 V. Newcomb 581 V. Waller 65 V. Watson 288 V. Walter 36 227, 234 V. Williams 862 V. Waters 65 Richmond v. Patterson 484 V. Watkinson 245 V. Thomaston 108 V. Watson 40, 52, 65 , 90, 101, Rickards v. Murdock 441 111, 198, 250, 256, 423, 449, Rickets v. Salwey 63, 72 ' 459, 460 Rickman's case 34,53 V. Webb 225,381 Riddick v. Leggatt 301 V. Wells 381 Riddle v. Moss 402 I). Westbeer 379 Ridgway v. Bowman 281 V. White 367 V. Ewbank 81 V. Whitley Lower 175 Ridley v. Gyde 108, 110 V. Wickham 285 Rigg V. Curgenwen 200, 210 V. Wild 225, 229 Riggins 1'. Brown 165 V. Wilde 6 , 223, 229 Riggs V. Taylor Right V. Price 349 V. Wilkes 321 272 V. Williams 367, 392 ,403,412 Riley v. Gerrish 281 V. Withers 237,479 V. Suydam 185 V. Woburn 175,330 331, 353, Rindge v. Breck 118 452 Ringgold V. Tyson 385 V. Woodcock 156, 158, 159, Rioters (The) 412 161, 346 Ripley r. Thompson 395 V. Wright ^ 440 V. Warren 6 V. Wylie 53 Ripon u. Davies 245 V. — 34 Ripple V. Ripple 505, 546 ■v. Yewin 450, 459 Rishton v. Nesbitt 106 Key V. Simpson Reyner v. Hall 288 Roach V. Garvan 545 212 V. Learned 108 Reynolds i'. Manning . 120, 201 Robb V. Starkey 560 V. Rowley 113, 246 Robbins v. King 254, 334 V. Staines 171 V. Otis 58, 68 Rhine v. Robinson 165 Roberts v. Adams 392 Rhodes V. Ainsworth 139, 405 V. Allatt 451 V. Bunch 55 V. Doxon 93 Ribbans v. Crickett 205 V. Simpson 246 Ricard v. Williams 17 V. Tennell 551 Rice V. Austin 420 V. Trawick 392 V. N. E. Marine Ins. Co. 444 V. Whiting 420 V. Peet 284 Roberts's case 221, 222 V. Wilkins 394 Robertson v. French 278 Rich V. Flanders 177 V. Lynch 58 Ixiv INDEX TO CASES CITED. Section Section Bobertson v. Smith 427 Rose V. Bryant 121 u. Stark 440 V. Himely 5 ,541 V. Teal 6 Roseboom v. Billington 121 Robinson v. Batchelder 304 Rosevelt v. Marks 112 V. Cushman 211 Ross V. Anstell 6 V. Dana 365 V. Bruce 89 I'. Plight 240 a V. Buhler 364 V. Oilman 479 V. Gould 49, 160 ,425 , 564 V. Jones 543 V. Lapham 55 V. Hutchinson 180,462 V. Eeddick 6 V. Markiss 322 V. Rhoads 145 c. Nahor 27, 207 Rothehoe v. Elton 396 V. Prescott 505 Rotherhain v. Green 71 u. Trull 311, 319 Rowe y. Brenton 151 512 517 V. Yarrow 196 u. Grenfel 5 Robinson's case 53 V. Hasland 41 Robison v. Alexander 193 Rowland u. Ashby 224 227 V. Sweet ■ 108 195,527 Eowlandson v. Wainwright 84 Robson V. Drummond 281 Rowley «. Ball 558 V. Kemp 181 240, 245 Rowntree r. Jacobs 26 Roby V. Howard 76 Rowt V. Kile 581 Rochester v. Chester 440 Ruan V. Perry 54 Roden v. Eyde 575 Rucker v. Palsgrave 205 Rodman v. Forman 70 Rudd's case 222 u. Hoops ■ 118. Eudge V. Ferguson 392 Rodriguez v. Tadmire 55 Ruggles 1}. Buckner 323 Rodwell V. Phillips 271 Rumford v. Wood 331 V. Redge 35 Eunk V. Ten Eyck 114 485 Roe V. Archb'p of York 265 Rush V. Flickwire 402 V. Day 197 201, 287 V. Smith 445 V. Ferrars 202 Rushforth v. Pembroke 164 ,553 u. Ireland 45 -Russell V. Blake 395 V. Jeffrey 130 V. Coffin 437 469 V. Lowe 46 V. Jackson 237, 240, 244 V. Rawlings 21 152,570 V. Rider 437 466 V. Keade 46 Russel V. Werntx 287 Roelker, In re 319 Rust V. Baker 41 Rogers v. Allen 58, 71 130, 143 Rustell V. Macquister 53 V. Berry 427 Rustin's case 366 V. Custanoe 562 Rutherford v. Rutherford 272 V. Dibble 421 Rutland & B. R. R. Co. v. Sim- V. Pitcher 207 son's Adm'r 329 V. Thompson 533 Ryan v. Sams 207 V. Turner 395 V. Wood 129, 136 Rogers's case 373 S. Rohan V. Hanson 304 Rohrer v. Morningstar 385 Rolf V. Dart 508 Sabine i'. Strong 323 418 Rollins V. Dyer 305 Sackett v. Spencer Sage V. Mo Alpine 440 Ronkendorff h. Taylor 493 532 Root V. Fellowes 532 V. Wilcox 268 V. King 55, 482,491 Sainthill v. Bound 449 Ropps V. Barker 286 Salem v. Lynn 108 Rose V. Blakemore 451,460 V. Williams 208 INDEX TCf CASES CITED. Ixv Section Salem Bank i'. Gloucester Bank 200, 208 Salisbury v. Connecticut 412 Salmon v. Kance 392 Salte V. Thomas 484, 493 Salter v. Applegate 19 Saltmarsh v. Tu thill 385 Sampson v. Overton 506 Sanborn v. Neilson 192 Sanderson v. CoUman 207 V. Symonds 665 Sandford v. Chase 316, 317, 318 V. Hunt 75 V. Ralkes . 285 V. Remington 245 Sandilands v. Marsh 112 Sangster D. Mazarredo 177 Santissima Trinidad (The) 4 Sargeant v. Sargeant 172, 190, 353, 354 Sargent v. Adams 297 V. Fitzpatriefc 532 V. Hampden 239 ^artorious v. State 432 Sasseer v. Farmer's Bank, 5 Satterthwaite v. Powell 30 Saunders v. Hendrix 338 V. Mills 53 B. Wakefield 268 Saunderson v. Jackson 268 V. Judge 40 V. Piper 297 Sauniere v. Wode 113 Savage v. Balch 180 V. Smith 59 Savignac v. Garrison 49 Sawyer v. Baldwin 484 V. Eifert 55 In re 222 V. Maine Fire & Marine Ins. Co. 541 Saxton V. Johnston 58 V. Nimms 484 Sayer v. Wagstafi" 438 Sayles v. Briggs 508 Sayre v. Reynolds 564 Sayward v. Stevens 281 Scales V. Jacob 113 Scammou v. Scammon 168, 190, 314 Scanlan u. Wright 571 Schaeffer v. Kreitzer , "510 Schall V. Miller 167 Schauber v. Jackson 46, 47 Schermerhorn v. Schermerborn 356 Sehillinger v. McCann 26, 420, 421 Section Schinotti v. Bumstead 474 Schmidt i-. New York, &c. Ina. Co. 55 Schnable v. Koehler 409 Schnertznell v. Young 506 Schooner Reeside . 292 Schreger v. Carden 205 Scorell V. Boxall _ 271 Scoresby v. Sparrow ' 349 Scott ,t). Blanchard 505 V. Brigham * 118 V. Burton 284 V. Clare 86, 96, 203 V. Cleveland 605 V. Hooper 370 V. Hull 75, 76 V. Jones 89 V. Liffbrd 426 V. Lloyd 354, 385 V. Marshall 180 V. McLellan 391, 399, 401 V. Waithman 207, 571 V. Wells 416 Scovill V. Baldwin 37 Scraggs v: The State 104 Scribner v. McLaughlin 421 Scrimshire v. Scrimshire 545 Seaman v. Hogeboom 287 Searight w. Craighead 112 Searle v. Ld. Barrington 122 Sears v. Brink 268 V. Dillingham 347 Seaver v. Bradley 392 V. Robinson 318 Seavy v. Dearborn 436, 443 Sebree v. Dorr 84, 87 Seddon, v. Tutop 532 Sedgwick v. Walkins 340, 343 Seekright v. Bogan 349 Selby V. Hills 316 Selden v. Williams 295 Sells «. Hoare 371 Selwood V. Mildway 289 Selwyn's case 30 Senior v. Armytage 294 Serchor v. Talbot . 69 Sergeson v. Sealey 556 Serle v. Serle 397 Settle V. Allison 21, 506 Sewell V. Evans 575 V. Stubbs 95, 97, 422 Seymour v. Beach 519 V. Delancy 284 Seymour's case 84 Shack V. Anthony 303 Ixvi INDEX TO CASES CITED. Section Shafer v. Stonebreaker 531 Shaller v. Brand 144 Shamburg v. Commagere 385 Shankland v. City of Washington 281 Shankwiker ;;. Reading 322 Shannon v. Commonwealth 423 Sharpe v. Bingley 437 V. Lambe 560 w. Sharpe 581 Shaw w. Broom 190 V. Charlesto%n 440 Sheafe v. Rows _ 440 Shearman v. Aikens 116, *120, 147 Sheehy v. Mandeville 69, 539 a Sheffield v. Page • 284 a Shelby i;. Smith 420 V. The Governor, &c. 187 V. Wright 23, 26 Sheldon v. Benham 116, 280 V. Clark 79 Shelling v. Farmer 474 Shelton v. Barbour 164 V. Cocke 112 V. Deering 568 a V. Liviua 271 Shephard v. Palmer 416 Shepherd v. Chewter 212 V. Currie 38 V. Little 26 V. Thompson 146 Sherburne v. Shaw 268 Sheridan «. Kirwin's case 90 Sheriff u. Wilkes 174 Sherman v. Akins 120 V. Barnes 396 U.Crosby 116, 120, 147, 152 V. Sherman 197 Sherrington's case 221 Sherwood v. Burr 1 7 Shields v. Boucher 103 Shires v. Grlasscock 272 Shirley v. Shirley 268 V. Todd 190 Schoenberger v. Zook 304 Shore v. Bedford 239, 243, 245 Shorey v. Hussey ^ 443 Shorty. Lee 83,115,147,149,153, 154, 155 V. Mercier 451 Shortz V. Uuangst 558 Shott V. Streatfield lOl Shotter v. Friend 260 a Shown u. Barr 506 Shrewsbury (Carpenters of) v. Hayward 405 Section Shrouders v. Harper 558 Shumway v. Holbrook 518 V. Stillman 548 Shuttleworth v. Bravo 392 Sidney's case 576 Silk V. Humphreys 81 Sillick V. Booth 30, 41 Sills V. Brown 440, 537, 553 Silver Lake Bank v. Harding 505 Simmonds, In re ^ ITi, Simmons v. Bradford 27 M. Simmons 257, 381 Simpson v. Margitson 49, 277 V. Morrison 112 V. Norton • 509 u. Staokhouse 564 u. Thoreton 479,558 Sims V. Kitchen 314 V. Sims 558 Sinclair v. Baggaley 121 V. Fraser 546 V. Sinclair 545 V. Stephenson 275, 284,437, 466, 560 Singleton u. Barrett 90, 97 Sisk ti. Woodruff 489 Sissons V. Dixon 35 Skaife v. Jackson 172, 173, 174, 211 Skilbeok v. Garbett 40 Skinner v. Perot 374 Skipp V. Hooke 5 Skipworth v. Greene 26 Slack V. Buchannan 192 u. Moss 385 Slade V. Teasdale 118 Slane Peerage (The) 104 Slaney v. Wade • 104, 134 Slater v. Hodgson 570 K. Lawson 174, 176 Slatterie v. Pooley 96, 203 Slaymaker v. Gundacker's Exr. 176 V. Wilson 577 Sleeper v. Van Middlesworth 431. Sleght V. Rhinelander 280 Sloan V. Somers 165, 166 Sloman w. Heme 180, 181 Sluby u. Champlin- 672,575 Small V. Leonard 532 Smallcombe v. Bruges 181 Smart u. Rayner 75 Smiley v. Dewey . 349 Smith V. Arnold 268 V. Barker 68 V. Battens 121 V. Beadnell 193 INDEX TO CASES CITED. Ixvii Section Section Smith V. Bell 287 Smythe v. Banks 316 V. Blackham 390 Snell V. Moses 58 V. Blagge 506 V. Westport 329 V. Blandy 201 Snellgrove v. Martin 109, 190 V. Brandram 73 Snow V. Batchelder 75 192,421 V. Brown 305 V. Eastern Railroad Co. 348 V. Burnliam 200, 214 Snowball v. Goodricke 180 V. Castles 323, 457 Snyder v. Nations 366 V. Chambers 392 V. Snyder 334, 341, V. Coffin 369,370 434 V. Cramer 108 Society, &c. v. Wheeler 19 v. Crooker 567,568 V. Young 46 V. Davies 81 Solaman v. Cohen 320 V. De Wrnitz 190 Solarete v. Melville 388 V. Downs 387, 388 Solita V. Yarrow 578 V. Dunbar 568 Solomon v. Solomon 206 V. Dunham 568 Solomons v. Bank of England 81 a V. Fell 239 Somes V. Skinner 24 V. Fenner 581 Soulden v. Van Rennsselaer 430 V. Gugerty 440 Soule's case 343 V. Hyndman 55 Southampton (Mayor of) v V. Jeffreys 281 Graves 474 V. Jeffries 79 Southard v. Kexford 451 V. Knowelden 73 0. Wilson 401 ,422,426 V. Knowl.ton 41, 540 Southey v. Nash 432 V. Lane 437 Southwick V. Stevens 36, 89, 234 V. Ludlow 112 V. Hapgood 281 V. Lyon 180 Souvereye v. . Arden 361 V. Martin 109 Soward v. Leggatt 74,. 81 V. Moore 78 Sowell V. Champion 358 V. Morgan 179,436,469 Spangle v. Jacoby 491 V. Nowels 145 Spargo V. Brown 116, 120, 147, V. Palmer 96, 203 171 V. People 462 Sparhawk v. Bullard 38 V. Potter 253 a, 480 Spaulding v. Hood 74,75 V. Powers 109, 145 V. Vincent 488 V. Prager 386, 409 Spears v. Forrest 462 V. Prewitt 145 V. Ohio 219 V. Price 442, 444 Speer v. Coate 145 V. Sanford 117, 334 Spence v. Chodwick 488 V. Scudder 185 V. Saunders ■ 118 V. Simmes 180 V. Stewart 317 V. Sleap 560 Spenceley v. DeWillott 449, 455 V. Smith 38, 107, 189 Spencer v. Billing 93 V. Sparrow 351, 421 V. Goulding 416 V. State 158 V. Koper 41 V. Stickney 469 V. William 521 V. Surman 271 Spicer v. Cooper 280 V. Taylor 63, 195 Spiers v. Clay 26 V. Thompson 300 i<. Morris 120 V, Vincent 176 V. Parker 19,78 V. Whittingham 187 V. Willison 87 V. Wilson 49,280,292 Sprague v. Cadwell 462 V. Young 90,560 V. Litherberry 19 Smith's case 235 V. Oakes 532 Ixviii INDEX TO CASES CITED. Section Section Spring Garden Ins. Co. v. State (The) v. Grant . 219 Riley 438 u. Harman 219 Spring V. Lovett 281 V. Hayward 257 Springstein v. Field 55 V. Hooker 165 Spurr V. Pearson 389 V. Howard 103, 160 V. Trimble 41 V. Isham 502 Stables v. Eley 208 V. Jolly 337 Staekpole v. Arnold 212, 275, 281; ».K 451 305 V. Kirby 223 Stacy V. Blake 179 V. Lewis 20 Stafford- u. Clark 531, 532 V. Littlefield 171, 195 ■v. Rice 385 X,. Lull 436 Stafford's (Ld.) case 235, 255 n. Mahon 218 Stafford Bank v. Cornell 416 V. McAUster 51 a, 306 Stajner v. Droitwitch 497 V. Molier 257 Stall V. Catskill Bank 387, 430 V. Morrison 79 Stammers v. Dixon 293 V. Neill 344 Stamper v. Griffin 463 V. Norris 444 Standage v. Creighton . 186 V. Parish, 227 Standen v. Standen 301 V. Patterson 449, 456 Stanley v. White 147,197 V. Peace 156 Stansfield v. Levy 76 V. Pettaway ■ 344 Stanton v. Wilson 334 V. Pierce 49 Staples V. Goodrich •532 V. Poll 158, 160 Stapleton v. Nowell 205 V. Rawls 199,437 Stapylton v. Clough 99 116, 120 V. Ridgely 375, 376 Stark V. Boswell 199 V. Roberts 221 Starkey v. People 161 a V. Rood 488 Starks v. The People 469 V. Shearer 79 Starkweather v. Loomis 505 V. Shelton 156 V. Matthews 420 V. Simmons 414 State (The) v. Adams ' 34 V. Snow 49 V. Allen 58.0, 581 V. Soper 233 V. Bailey 457 V. Sparrow 432 V. Boswell 461 V. Sta(Je 489, 505 V. Brookshire 432 V. Stanton 414 V. Broughton 225 V. Stinson 370 V. Burlingham 335 V. Thomason 157 V. Caffey 70 V. Vaigneur 221 V. Cameron 156,161 V. Vittum 372 V. Candler . 376 V. Welch 342 V. Carr 489, 581 V. Whisenhurst 371 V. Coatney V. Colwell 349 V. Whittier 367 436 V. Worthing 335,363 V. Cowan 220 St. Clair V. Shale 109 V. Croteau 49 Stead V. Heaton • 150 V. Crowell 79 Stearns ■]. Hall 302, 304 V. Davidson 175 1 >. Hendersass 109 V. Davis 343 Stabbing V. Spicer 38 V. De Wolf 366 Stebbins V. Saokett 422,423 V. Dill 319 Steed V. Oliver 361 V. Dunwell 6 Steel V. Prickett 130 w. Ferguson 160 Steele v. Smith 548 V. Foster 362 V. Stewart 239 i;. Freeman 252 a V. Worthington 26 INDEX TO CASES CITED. Ixix Section Steers v. Carwardine 397 Stein u. Bowman IS*, 334, 337 V. Weidman 253 a Steinkellen v. Newton 88, 438 Steinmetz v. Currie 430 Stephen v. State 5 Stephens v. Foster 466 V. Vroman 200 V. Winn 268 Stephenson v. Bannister 506 Sterling v. Potts 558 Sterrett M. Bull 117 Stevens v. McNamara ■ 41 V. Finn ay 89 V. Taft 20 V. Thacker 184 Stevenson v. Mudgett 429 V. Nevinson 505 Stewart v. Alison 498 V. Cauty 49 V. Doughty 271 V. Huntington Bank 332 !>. Kipp 392,409 V. Say brook 331 Stewartson v. Watts 113 St. George v. St. Margaret 28, 40 Stiles V. The Western Railroad Co. 110,113 Still V. Hoste 289 Stimmel v. Underwood 387, 388 Stobart v. Dryden 156 Stockbridge v. W. Stookbridge 21 Stockdale v. Hansard 6 V. Young 558 Stookfleth V. De Tastet 193 Stookham v. Jones 358 Stockton V. Demuth 113, 442, 443 Stodart v. Palmer 56, 70 Stoddart v. Manning 453 Stoever v. Whitman 280 Stokes V. Dawes 104, 556 V. Stokes 115, 147 Stonard v. Dunkin 207 Stone V. Bibb 356 V. Blackburne 421 V. Clark 293, 301 V. Crocker 471' u. Forsyth 518 V. Hubbard ' 280 V. Knowlton 56, 68 V. Metcalf 283 V. Ramsay 200 V. Vance 385 II. Varney 55 Stoner's appeal 287 Section Stoner v. Byron 364,386 Stoop's case 346 Storer v. Batson 266 V. Elliot Fire Ins. Cc 288 V. Freeman 288 Storr et al. v. Scott 196 V. Finnis 205 Story V. Watson 73 Stouffer V. Latshaw 284 Stout V. Russell 457 V. Wood 421 Stowell V. Robinson 302 Straker v. Graham 252 a Stralding v. Morgan 293 Strange v. Dashwood 672 Stranger v. Searle 577 Straton v. Rastall 207 212,305 Streeter v. Bartlett 669 Strickler v. Todd 17 Strode V. Winchester 147,266 Strother v. Barr 87,96 Strutt V. Bovingdon 531 Studdy V. Sanders 210, 507 Stukeley v. Butler 60,301 Stump V. Napier 385 Sturd V. Buchanan 116 Sturdy v. Arnaud 303 Summers v. Moseley 445 Summersett v. Adamson 203 Sumner v. Child 17 V. Sebec 484 V. Williams 101 Sussex (Earl of) v. Temple 189 Sussex Peerage case 99, 104, 147 Sutton V. Bishop 413 V. Kette 1 305 Suydam v. Jones 302 Swain V. Lewis 561 Swallow V. Beaumont 58, 66, 68 Sweet V. Lee 282,299 y, Sherman 469 Sweigart v. Berk 529 Swift V. Bennett 116 V. Dean 421 V. Eyres 301 V. Stevens 558 Swing V. Sparks 118 Swinnerton v. Marquis of Staf- ford 21,142,485 Swire v. Bell 572 Sybra v. White 183 Syers v. Jonas 293 Sykes v. Dunbar 252 Sylvester v. Crapo 190 Symmons v. Knox 60 Ixx INDEX TO CASES CITED. Section Syirionds v. Carr 66 u. Lloyd 292 T. Talbot V. Clark 521 V. Seeman 487,491 Tallman v. Dutcher 421,426 Taney v. Kemp 452 Tanner v. Taylor 437 Tannett's case 65 Taplin v. Atty 560 Tarleton v. Tarleton 543 Taunton Bank v. Richardson 349 Tawney v. Crowtlier 268 Tayloe v. Riggs 82, 349 Taylor v. Bank of Alexandria 489 V. Bank of Illinois 489 V. Barclay o, 6 v. Beck 385 V. Blacklow 240 u. Briggs 278,279,292 V. Bryden 548 V. Cook 139 V. Croker 196, 207 V. Diplock 30 V. Dundasa 521 V. Foster 186, 239 V. Henry 484 In re 107, 108 V. Johnson 565 V. Lawson 432 u. Luther 385 V Moseley 564 V. Ross 268 V. Say re 281 V. Tucker 118 V. Weld - 284 V. Willans 49, 101, 186 Teal V. Auty 271 Teall V. Van Wyok 572 Teese v. Huntington 2 Tempest v. Kilner 267 Tenbrook v. Johnson 118 Tennant v. Hamilton 449 V. Straohan 892 Tennessee (Bank of) v. Cowan 115 Tenny v. Evans 179 Terill V. Beeoher 118 Terrett v. Taylor 23, 24, 331 Terry u. Belcher 337 Tewksbury v. Bricknell ' 72 Texira v. Evans 568 a Thallhimer v. BrinckerhoflE" 113 Thayer v. Crossman V. Stearns Theakston v. Marson Thelluson v. Cosling Theobald v. Tregott Section 385,401 484 260 a 491 416,417 Thomas & Henry v. U. States 323 Thomas Jefferson (The) 6 Thomas v. Ainsley 96 V. Cummins 319 U.David 432,450 V. Dyott 118 V. Graves 260 a V. Hargrave 341 V. Jenkins 139 V. Ketteriche 550 V. Newton 451 V. Robinson 505 V. Tanner 506 V. Thomas 197, 289, 291 V. Turnley 575 Thomas's case 228 Thompson v. Armstrong 389 u. A-usten 192,201 V. Bullock 144 V. Davenport 196 V. ^Donaldson 550 V. Ereeman 102, 341 V. Ketchum 281 V. Lockwood 284 V. Musser 489 V. Roberts 531 V. Stevens 120,152 V. Stewart 5, 514 V. Travis 558 Thompson's case 220 Thorndike v. Boston 108 ■ V. Richards 301 Thornes v. White 310 Thornton v. Blaisdell . 256 V. Jones 66 V. Royal Ex. Ass. Co. 440 V. Wykes 69 Thornton's case 220, 222 Thorpe v. Barber 357 V. Cooper 532 V. Gisburne 577 Throgmorton v. Walton 41, 81 Thurman v. Cameron 573 Thurston v. Masterson 21 V. Whitney 369 Tibeau v. Tibeau 568 Tiokel V. Short 194 Tiernan w. Jackson 172 Tiley v. Cowling 19i5, 527 Tilghman v. Eisher 196 INDEX TO OASES CITED. Ixxi Section Tillotson V. Warner 501, 508, 509 Tilou V. Clinton, &c. Ins. Co. 564 Tinkham v. Arnold 17 Tinkler v. Walpole 494 Tinkler's case 157,158 Titford V. Knott 581 Title V. Grevett 384 Titus V. Ash 66, 462 Tobin V. Shaw 558 Tod V. Earl ofWinohelsea 163, 272 V. Stafford ■ 385 Tolman v. Emerson 142, 144 Tomkies v. Reynolds 108 Tomlinson v. Borst 118 Tompkins v. Ashby 551 V. Attor.-General 484 V. Curtis 430 V. Phillips 207 V. Saltmarsh 108 Tong's case 233 Tooker v. D. of Beaufort 6 Topham v. McGregor 437 Towle V. Blake 118 Town V. Needham 421 Townend v. Downing 391, 395 •Townley D. Woolley 118 Towns V. Alford 435 Townsend v. Bush 379, 385 V. Graves 54 V. The State 49 V. Weld 281 Tracy Peerage 581 Trant's case 160 Travis v. January 246 Treat v. Strickland 109 Tregany v. Fletcher 6 Trelawney v. Coleman 102 V. Thomas 387 Tremain v. Barrett 310 V. Edwards 118 Trevivan v. Lawrence 23, 531 Trewhitt v. Lambert 89 Tripp V. Gery 86 Trischet v. Hamilton Insur. Co. 463 Trotter v. Mills 502 Trowbridge v. Baker 195 Trowell v. Castle 511, 564 Trowter's case 16i Truslove w. Burton 186 Trustees, &c. w. Bledsoe 114 V. Peaslee 290, 291 Trustees Ep. Ch. Newbern v. Trustees Newbern Acad. 21 Tucker v. Barrow 193 V. Maxwell 212, 305 Section Tucker v. Tucker 75 V. Welsh 89 Tufts V. Hayes 207 TuUis V. Kidd 440 Tullock V. Dunn 176 Turner v. Austin , 394 V. Coe 421 V. Crisp 121 V. Eyles 56 V. Lazarus 356 V. Pearte 421 V. Twing 118 V, Waddington 506 V. Yates 182, 560 Turney v. The State 434 Turquand v. Knight 239 Tutt e V. Brown 113 Tuzzle V. Barclay 51 a Twambly v. Henley 384, 397 Twiss V. Baldwin 60,64 Tyler v. Carlton 26 V. Ulmer 180 394, 539 V. Wilkinson 17 Tyer's case 65 u. ti Ulen V. Kittredge 269 Ulmer v. Leland 78 Underbill v. Wilson 180 Underwood v. Wing 30 Union Bank k. Knapp 118, 168,368, 474 V. Owen 430 Unis V. Charlton's Adm'r 462 United States v. Amedy 489 V. Batiste 49, 97 V. Benner 479 V. Breed 280 V. Britton 65,84 V. Buford 73, 498 V. Burns 5,6 V. Cantrill 300 V. Castro 142, 143, 485 V. Chapman 221 V. Cushman 539 a V. Edme 316 V. Gibert Si 233,495 V. Gooding 233 V. Hair Pencils 241 V. Hanway 256 V. Hayward 79, 80 V. Johns 4, 485, 489 V. King 5,6 Ixxii INDEX TO CASES CITED. Section United States v. Leffler 284, 385 V. Macomb 164, 165 V. McJNeal 65, 70 V. Mitchell 479 U.Moore 311 u. Moses 250 V. Murphy 350, 412 V. Nelson 368 a D. Nott 219 V. Palmer 4 V. Percheman 485 V. Porter 65 V. Keyburn 82, 83, 92 V. Reynes 6 V. Smith 430 V. Spaulding 566 n. Turner 6 V. Wilson 412 V. Wood 165, 257, 258 U. States Bank v. Corcoran 2 V. Dandridge 21 V. Dunn 40, 83 V. Glass Ware 385 V. Johnson 489 V. La Vengeance 6 V. Stearns 416 Utica (Bk. of) v. Hillard 385, 474, 559 V. Mersereau 240, 243, 422 V. Smalley 430 Utica Ins. Co. v. Cadwell 430 Vacher v. Cooks 108 Vail V. Lewis 60 V. Nickerson 371 V. Smith 501 Vaillant v. Dodemead 243, 248 Vaise v. Delaval 252 a Valentine v. Piper 575 Vallanoe v. Dewar 292 Valton V. National Loan, &c. Soo. 322 Van Buren v. Coekburn 165 V. Wells 51 a Vanbuskirk v. Mullock 489 Vance v. Reardon 501 V. Schuyler 573 Vandenheuvel v. U. Insur. Co. 543 Vanderwerker v. The People 6 Van Deusen v. Frink 429 V. Slyck 358 Vandine v. Burpee 440 Section Van Dyke v. Van Buren 46 Vane's (Sir Henry) case 256 Vanhorne v. Dorrance 564 Van Ness -v. Packard 2 Van Nuys v. Terhune 389 Van Omeron v. Dowick 40, 479 Van Reimsdyk t». Kane 112,174, 177, 178 Vansant v. Kay 395 Van Sandau v. Turner 6 Van Shaaok v. Stafford 427 Van Valkenburg v. Rouk 284 Van Vetchen v. Greves 173 Vass's case 160, 161 a Vasse V. Mifflin 559 Vau V. Corpe 361 Vaughan v. Fitzgerald 552 V. Hann 214 V. Martin 438 o. Worrall 421 Vaughn V. Perrine 458 Vaux Peerage case (The) 497 Vedder v. Wilkins 558 Venning v. Shuttleworth 399 Vent V. Pacey 240 a Verry v. Watkins 54' Vicary v. Moore 303 Vioary's case 1 74 Villiers v. Villiers 84 Vinal M. Burrill 87,112,356 Vincent v. Cole 88, 304 Viney v. Bass 52 Violet V. Patton 268 Voce V. Lawrence ^22 Volant V. Soyer 246 Vooght V. Winch 531 Vosburg u. Thayer 118 Vose V. Handy 301 V. Morton 523, 528 Vowles V. Miller 60, 72 V. Young 103, 105, 334, 342 w. Waddington v. Bristow 278, 578 V. Cousins 573, 580 Wadley v. Bayliss 293 Wafer v. Herapkin 168 Wagers v. Dickey 165 Waggoner u. Richmond 118 Wagstaff u. Wilson 186 Wain V. Warlters 268 Waite V. Merrill 427 Wake V. Lock Wakefield v. Ross 396,421,426 328, 339, 869 INDEX TO CASES CITED. Ixxiii Section Wakefield's case 339, 343, 374 Wakeley v. Hart 858 Walden v. Canfield 6 V. Crais 73 V. SheH)urne 112 Waldridge v. Kenison 192 Waldron v. Tuttle 130 V. Ward 243 Walker v. Broadstock 109, 189 V. Countess of Beau- champ 131 V. Ferrin 427 V. Giles 409 V. Hunter 49 V. Kearney 374 V. Protection Ins. Co. 440 V. Sawyer 425 ». Stephenson 64 V. Walker 165 V. Welch 66 V. Wheatley 302 V. Wildman 237, 240 V. Wingfield 485 V. Witter 546 Walker's case 189 Wall V. McNamara 532 Wallace v. Cook 484, 493 V. Kogers 305 a V. Small 192 V. Twyman 420 Wallis V. Murray 559 Walsingham, Ld. v. Goodricke ,, 240 a, 244 Walson V. Moore 201 Walter u. Bollman 117 V. Haynes 40 Walters v. Mace 64 u. Kees 317 V. Short 564 Walton V. Coulson 21 V. Green 110, 185, 341 V. Shelley 383, 385, 389 V. Tomlin 356 V. Walton 260 Wamhough v. Shenk 41 Wandless v. Cathrone 95, 422 Ward V. Apprice 349 u. Haydon 357 V. Howell 112 V. Johnson 539 V. Lewis 38 V. Pomfret 155 V. Sharp 452 V. The State 161 a V. Wells 572 Section Ward V. Wilkinson 398 Warde v. Warde 241 Warden v. Eden 173 V. Fermor 572 Wardle's case '65 Ware v. Brookhouse 109 V. Hayward Rubber Co. 292 V. Ware 52, 77, 449, 462 Waring v. Waring 365 Warner v. Harder 485 V. Price 116, 120 Warren v. Anderson 575 V. Charlestown 331 u. Comings 531, 532 V. Flagg 505 V. Greenville 119, 147, 149, 150, 154 V. Nichols 165 V. Warren 40 V. Wheeler 277 Warrickshall's case 214, 215, 219, 231 Warriner v. Giles 484 Warrington v. Early 668 Warwick v. Bruce 271 V. Foulkes 53 Washington S. P. Co. v. Sickles 532 Waterman v. Johnson 288, 301 Watertown v. Cowen 175 Watkins v. Holman 479, 480, 482 V. Morgan 73 V. Towers 27 Watson V. Blaine 26 V. Brewster 104 V. England 41 V. Hay 6 !;. King 41,186 V. Lane 207 V. McLaren 430 V. Moore 55 V. Tarpley 49 V. Threlkeld 27, 207 V. Wace 204, 207 Watts V. Friend 271 V. Howard 118 V. Kilburn 572 V. Lawson 192 V. Thorpe 181 Waugh V. Bussell 69, 567 Wayman v. Hilliard 192 Waymell v. Read 284, 488 Weakly v. Bell 207 Weall c. King 58, 64 Weaver v. McElhenon 5 Webb V. Alexander 513 Ixxiv INDEX TO CASES CITED. Section Webb V. Man. & Leeds Railroad Co. 440 V. Page 310 V. Smith 179, 248 * V. St. Lawrence 575 Webber v. Eastern Railroad Co. 540 Webster v. Clark 118, 436 V. Hodgkins 89, 282 V. Lee 447, 532 V. Viekers 385 V. Woodford 284 Wedge V. Berkeley , 49 Wedgewood's case 484, 493 Weed V. Kellogg 180, 322 Weeks v. Lowerre 163 V. Sparke 128, 129, 130, 136, 137, 138, 145, 146 Weems v. Disney 145 Weguelin v. Weguelin 321 Weidman v. Kobr 109, 189 Weidner v. Sohweigart 38 Weigly V. Wier ' 26 Welborn's case 158, 160 Welch V. Barrett 115, 116, 147 V. Mandeville 173 0. Seaborn 38 Weld V. Ni(!hols 539 Welden v. Buck 423 Welford v. Beezely 268 Welland Canal Co. v. Hathaway 86, 203, 204 Weller v. Gov. Found. Hosp. 331, 333 Wells V. Compton 195, 301, 527 a, 539 V. Fisher 339 V. Fletcher 207, 339 V. Jesus College 138 V. Lane , 333 V. Porter 293 V. Stevens 513 V. Tucker 338 Welsh V. Rogers 323 Wendell v. George 385 Wertz V. May 469 West V. Davis 97 V. Randall 392 V. State 577 V. Steward 568 o West Boylston ti. Sterling 828 West Cambridge v. Lexington 109 Westbury v. Aberdein 441 Weston V. Barker 1 73 v. Chamberlain 281 V. Emes , 281 V. Penniman 494 Section Wetmore v. Mell 108 Whateley v. Menheim 531 Whatley v. Fearnley 892 Wheater's case 226 Wheatley v. Williams 245 Wheeler v. Alderson 101 (/. Hambright 180 V. Hatch 437 V. Hill 237 V. Moody 6 Wheeling's case 217 Wheelook v. Doolittle 113 Whelpdale's case 284 Whipple V. Foot 271 V. Walpole 440 Whitaker v. Bramson 70 V. Salisbury 672 V. Smith 58 Whitamore v. Waterhouse 394, 427 Whitbeck v. Whitbeck 26 Whitcher v. Shattuck 101 Whitcomb v. Whiting 112, 174 White V. Coatsworth 532 V. Crew 260 V. Everest 452 V. Foljambe 46 V. Hale 112, 174 V. Hawn 371 V. Hill 358 V. Judd 810 V. Lisle ISO, 137, 138 . V. Parkin 303 V. Philbrick 533 V. Proctor 269 V. Sayer 294 V. Trust. Brit. Museum 272 V. Wilson 58, 68, 81, 281 White's case 65, 217, 328, 365 Whitehead v. Scott 89, 101 V. Tattersall 184 Whitehouse v. Atkinson 394, 420 V. Bickford 145, 485, 570 Whitehouse's case 343 Whitelooke v. Baker 103, 104, 131 V. Musgrove 575 Whitesell v. Crane 848 Whitfield v. CoUingwood 564 Whitford V. Tutin 87 Whitlock V. Ramsay 69 Whitmarsh v. Angle 440 V. Walker 271 Wbitmer v. Frye 568 Whitmore v. South Boston Iron Co. 292 INDEX TO CASES CITED. Ixxv Whitmoi-e v.. Wilks Whiteside's appeal Whitney v. Bigelow V. Ferris V. Heywood Whittemore v. Brooks Whittier v. Smith Whittuuk V. Waters Whitwell V. Scheer V. Wyer Whyman v. Garth Wickens v. Goatley Wiekes v. Caulk Wicks V. Smallbroke Wiggin V. Lowell Wigglesworth v. Dallison V. Steers Wike V. Lightner Wikoflf's appeal Wilbur V. Selden 115, 147, 1G3, 165 V. Strickland 232 V. Wilbur 571 Wiloocks V. Phillips 488 Wilcox V. Smith 83 Wilde V. Ai-msby 564 Wiley V. Bean 572 V. Moor 568 a Wilkinson v. Johnson . 566 V. Lutwidge 196 V. Soott • 26, 306 V. Yale 323 Willard v. Harvey 508 V. Wickham 427 Williams v. Amroyd 541 V. Baldwin 254 V. Bartholomew 207 V. Bridges 180, 181 V. Bryant 69 V. Bryne 49 V. Cheney 171, 195,-562 V. Callender 55 V. E. India Co. 35, 40, 80 V. Geaves 115, 150, 151 V. Gilman 288 V. Goodwin 430 V. Hing. &c. Turnp. Co. 78 V. Innes 27, 182 V. Johnson 342 V. Mundie 240 V. Ogle 65 V. Stevens 392 V. Thomas 74 V. Van Tuyl 568 V. Walbridge 385 V. Walker 443 Section 347 Williams v. Wilkes Section 502 41 V. Willard 165 121 V. Williams 45, 200 177 Williams's case 311 323 Williamson v. Allison 51,60,63 572 207 V. Henley V. Scott 205 212 493 Willingham v. Matthews 316 73 201 Willings V. Consequa Willis V. Barnard 354 102 569 6 V. Jernegan V. McDde 197 558 564 Willis's case 255 375 Williston V. Smith 56 333 294 Willoughby v. Willoughby Wills V. Judd 5 354 284 Wilmer v. Israel 118 461 Wilson V. Allen 46 504 V. Betts 144 V. Boerem 156 V. Bowie 89 V. Calvert 201 V. Carnegie 195 V. Conine 511 V. Gary 409 V. Goodin 118 V. Hodges 41, 81 V. Niles 548 V. Rastall 237, 239, 243, 247 V. Rogers 473 V. Troup 237, 241 V. Turner 27 V. Wilson 118 Wilson's case 225 Wilton V. Girdlestone 521 V. Webster 102 Wiltzie V. Adamson 197, 198 Winans v. Dunham 511 Winch V. Keeley 172 Winn V. Chamberlain 293 V. Patterson 21, 142 Winnipiseogee Lake Co. v. Young 6 Winship v. Bank of U. S. 167, 148 Winslow V. Kimball- 341 Winsmore v. Greenbank 183 Winsor v. Dillaway 118 V. Pratt 273 Winter «. Butt 467 V. Wroot 102 Wishart V. Downey 569 Wishaw V. Barnes 408 Withee v. Kowe . 581 Withers v. Atkinson 668 Ixxvi INDEX TO CASES CITED. Section Withers v. Gill«spy S63 Withnell v. Gartham 138, 293 Witmer v. Schlatter 539 Witnashu. George 116, 150, 187 Wogan V. Small 440 Wolcott V. Hall 55 Wolf u. Washburn 498,513 V. Wyeth 165 WoUey V. Brownhill 347 Wood V. Braddick 112,177 V. Braynard 392 V. Cooper 437 V. Davis 524 V. Drury 572 V. Fitz 6 w.-Hickok 260 a V, Jacksow 529, 531 V. Le Baron 632 V. Mackinson 445 V. Mann 461 V. Pringle 76 V. Watkinson 547 V. Whiting 305 Woodbeck v. Keller 255, 257 Woodbridge v. Spooner 281 Woodcock's case 158 Woodcraft v. Kinaston 502 Woodford V. Ashley 70 Woodman v. Coolbroth 571 V, Lane 301 Woodruff D. Westcott 190, 853 r. Woodruflf 527 a Woods V. Banks 113, 508 V. Sawin 287 V. Woods 41, 240 a Woodsides v. The State 156 Woodstock, Bank of, v. Clark 108 Woodward v. Cotton 481 V. Larking 211 V. Newhall 356 V. Picket 268 Woolam V. Hearn 276 Wool way u. Rowe 190, 191 Wooster v. Butler 146, 287 V. Lyons 96 Worcester Co. Bank v. Dorches- ter, &c. Bank 81 o Word V. Drury 572 Worrall v. Jones 330, 353, 354, 356 Worthington v. Hyler 300, 301 Wright V. Barnard 5 V. Beckett 444, 467 V. Caldwell 348 V. Court 111 Section Wright 1). Crookes 281, 304 V. Hicks 462 V. Howard 17 V. Littler 156 V. Netherwood 30 V. Phillips 6 V, Sarmuda 30 V. Sharp 118 V. Tathai 82, 101, 108, 163, 164, 535, 553 V. Wright Wyatt V. Gore , V. Hodson V. Lord Hertford Wyer v. Dorchester, &c.. Bank Wylde's case Wyndham v. Chetwynd Wynne v. Tyrwhitt 150, 154, 570 272 251 174 207 81 a 288 419 Y. Yabsley v. Doble Yandes v. Lefavour Yarborough v. Moss Yardley v. Arnold Yarley v. Turnock Yate's case Yates V. Pym Yeates v. Pim Yeatman, Ex parte V. Hart Yeaton v. Fry York V. Blott V. Gribble V. Pease York,&c. E. K. Co.u. Yoter V. Sanno Young V. Bairner V. Black • V. Chandler* V. Dearborn V. Honner V. Richards V. Smith V. The Bank dria V. Wright Youqua v. Nixon Yrissarri v. Clement 180 112 201 421 ' 72 257 292 294 238 51 a 5,414 399 402 74 Winans 6 261 76, 385 532 506 165 580 341 180 of Alexan- 480,489,490 27, 186 304 4 ZoUicoffer v. Turney 452 Zouch V. Clay 567, 568 * This case is reported in 13 B. Mon. 252, and not as cited in note to section 506. PAUT I. OF THE NATURE AND PRINCIPLES OF EYIDENCE A, TREATISE ON THE LAW or EVIDENCE. PART I. OP THE NATURE AND PRINCIPLES OF EVIDENCE. CHAPTER I. PKELIMINART OBSERVATIONS. § 1. The word Evidence, in legal acceptation, includes all the means by vs^hich any alleged matter of fact, the truth of which is submitted to investigation, is established or dis- proved.^ This term, and the word "proofs are often used indifferently, as synonymous with each other ; but the latter is applied by the most accurate logicians, to the effect of evidehce, and not to the medium by which truth is estab- lished.^ None but mathematical truth is susceptible of that high' degree of evidence, called demonstration, which. excludes all possibility of error, and which, therefore, may reasonably be required in support of every mathematical deduction. Matters of fact are proved by moral evidence alone ; by > See Wills on Circumstantial Evid. 2; 1 Stark. Evid. 10; 1 Phil. Evid. 1. 2 Whately's Logic, b. iv. ch. iii. § 1. 4 LAW OF EVIDENCE. [PART I. which is meant, not only that kind of evidence which is employed on sVibjects connected with moral conduct, but aU the evidence which is not obtained either from intuition, or from demonstration. In the ordinary affairs of life, we do not require demonstrative evidence, because it is not con- sistent with the nature of the subject, and to insist upon it would be unreasonable and absurd. The most that can be affirmed of such things, is, that there is no reasonable doubt concerning them.^ The true question, therefore, in trials of fact, is not whether it is possible that the testimony may be false, but, whether there is sufficient probability of its truth ; that is, whether the facts are shown by competent and sat- isfactory evidence. Things established by competent and satisfactory evidence are said to he proved. § 2. By competent evidence, is meant that which the very- nature of the thing to be proved requires, as the fit and appropriate proof in the particular case, such as the produc- tion of a writing, where its contents are the subject of inquiry. By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof, which ordinarily satisfies an unprejudiced mind, beyond reason- able doubt. The circumstances which will amount to this degree of proof can never be previously defined; the only legal test of which they are susceptible, is their sufficiency to satisfy the mind and conscience of a common man ; and so to convince him, that he would venture to act upon that conviction, in matters of the highest joncern and importance to his own interest.^ Questions respecting the competency 1 See Gambler's Guide to the Study of Moral Evidence, p. 121. Even of mathematical truths, this writer justly remarks, that, though capable of demonstration, they ai-e admitted by most men solely on the moral evidence of general notoriety. For most men are neither able themselves to under- stand mathematical demonstrations, nor have they, ordinarily, for their truth, the testimony of those who do understand them ; but finding them generally believed in the world, they also believe them. Their belief is afterwards confirmed by experience; for whenever there is occasion to apply them, they are found to lead to just conclusions. Id. 196. 2 1 Stark. Evid. 614. CHAP. I.] PRELIMINARY OBSERVATIONS. 5 and admissibility of evidence, are entirely distinct from those which respect its sufficiency or effect; the former being ex- clusively within the province of the Court ; the latter be- longing exclusively to the Jury.^ Cumulative evidence, is evidence of the same kind, to the same point. Thus, if a fact is attempted to be proved by the verbal admission of the party, evidence of another verbal admission of the same fact is cumulative ; but evidence of other circumstances, tending to establish the fact, is not.^ § 3. This branch of the law maybe considered under three general heads, namely: First, The Nature and Principles of Evidence ; — Secondly, The Object of Evjdence, and the Rules, which govern in the production of testimony ; — And Thirdly, The Means of Proof, or the Instruments, by which facts are established. This order will be followed in farther treating this subject. But before we proceed, it will be proper first to consider what things Courts will, of them- selves, take notice of, without proof. 1 Columbian Ins. Co. v. Lawrence, 2 Pet. 25, 44 ; Bank United States v. Corcoran, Id. 121, 133; Van Ness v. Pacard, Id. 137, 149. 2 Parker v. Hardy, 24 Pick. 246, 248. 1* LAW OP EVIDENCE. [PART I. » CHAPTER II. OF THINGS JUDICIALLY TAKEN NOTICE OF, WITHOUT PKOOF. § 4. All civilized nations, being alike members of the great family of sovereignties, may well be supposed to rec- ognize each other's existence, and general public and external relations. The usual and appropriate symbols of nationality and sovereignty are the national flag and seal. Every sov- ereign, therefore, recognizes, and, of course, the public tribu- nals and functionaries of every nation take notice of the existence and titles of all the other sovereign powers in the civilized world, their respective flags, and their seals of state. Public acts, decrees, and judgments, exempUfied under this seal, are received as true and genuine, it being the highest evidence of their character.^ If, however, upon a civil war in any country, one part of the nation shall separate itself from the other, and establish for itself an independent gov- ernment, the newly-formed nation cannot without proof bfe recognized as such, by the judicial tribunals of other nations, until it has been acknowledged by the sovereign power under which those tribunals are constituted ; ^ the first act of recog- nition belonging to the executive function. But though the seal of the new power, prior to such acknowledgment, is not permitted to prove itself, yet it may be proved as a fact 1 Church V. Hubbart, 2 Cranch, 187, 238; Griswold v. Pitcairn, 2 Conn. 85,90; United States v. Johns, 4 Dall. 416; The Santissima Trinidad, 7 Wheat. 273, 335 ; Anon. 9 Mod. 66 ; Lincoln v. Battelle, 6 Wend. 475. It is held in New York that such seal, to be recognized in the Courts, must be a Common-Law seal, that is, an impression upon wax. Coit v. Milliken, 1 Denio, R. 376. ^Grierson v. Eyre, 9 Ves. 347 ; United States v. Palmer, 3 Wheat. 610 634. CHAP. II.] THINGS JUDICIALLY TAKEN NOTICE OF. 7 by other competent testimony.^ And the existence of such unacknowledged government or state may, in like manner, be proved ; the rule being, that if a body of persons assem- ble together to protect themselves, and support their ov^n independence, make laws, and have Courts of justice, this is evidence of their being a State.^ § 5. In like manner, the Law of Nations, and the general customs and usages of merchants, as weU as the public stat- utes and general laws and customs of their own country, as well ecclesiastical as civU, are recognized, without proof, by the Courts of all civilized nations.^ The seal of a notary- public is also judicially taken notice of by the Courts, he being an officer recognized by the whole commercial world.* Foreign Admiralty and Maritime Courts, too, being the* Courts of the civilized world, and of coordinate jurisdiction, are judicially recognized everywhere; and their seals need 1 United States v. Palmer, 3 Wheat. 610, 634 ; The Estrella, 4 Wheat. 298. What is sufficient evidence to authenticate, in the Courts of this country, the sentence or decree of the Court of a foreign government, after' the destruction of such government, and while the country is possessed by the conqueror, remains undecided. Hatfield v. Jameson, 2 Munf. 53, 70, 71. 2 Yrissarri v. Clement, 2 C. & P. 223, per Best, C. J. And see 1 Kent, Comm. 189 ; Grotius, De Jur. Bel. b. 3, c. 3, § 1. 3 Ereskine v. Murray, 2 Ld. Kaym. 1542; Heineccius ad Pand. 1. 22, tit. 3, sec. 119; 1 Bl. Comm. 75, 76, 85; Edie v. East India Co. 2 Burr. 1226, 1228; Chandler v. Grieves, 2 H. Bl. 606, n.; Rex u. Sutton, 4 M. & S. 542; 6 Vin. Abr. tit. Court, D ; 1 Rol. Abr. 526, D. Judges will also take notice of the usual practice and course of conveyancing. 3 Sugd. Vend. & Pur. 28; Willoughby v. Willoughby, 1 T. K. 772, per Ld. Hardwicke; Doe v. Hilder, 2 B. & Aid. 793 ; Rowe v. Grenfel, Ry. & Mo. 398, per Abbott, C.J. So, of the general lien of bankers on securities of their customers, deposited with them. Brandao v. Barnett, 3 M. G. & Sc. 519. [See also infra, § 489, 490. A special act for the survey of a particular tract of land is not, as a general rule, such a public statute as the Courts are bound to take notice of and expound, without requiring its production. Allegheny v. Nelson, 25 Penn. State R. 332.] 4 Anon. 12 Mod. 845 ; Wright v. Barnard, 2 Esp. 700 ; Teaton v. Fry, 5 Cranch, 535 ; Brown ». Philadelphia Bank, 6 S. & R. 484 ; Chanoine v. Fowler, 3 Wend. 173, 178; Bayley on Bills, 515, (2d Am. ed. by Phillips & Sewall) ; Hutpheon v. Mannington, 6 Ves. 823; Porter v. Judson, 1 Gray, 175. 8 LAW OF EVIDENCE. [PAKT I. not be proved.^ Neither is it necessary to prove things which must have happened according to the ordinary course of nature;^ nor to prove the course of time, or of the heavenly bodies ; nor, the ordinary public fasts and festivals ; nor, the coincidence of days of the week with days of the month ; ^ nor, the meaning of words in the vernacular language ; * nor, the legal weights and measures ; ^ nor, any matters of public history, affecting the whole people;^ nor, public matters, affecting the government of the country^ § 6. Courts also take notice of the territorial extent of the jurisdiction and sovereignty, exercised de facto by their own government; and of the local divisions of their country, as - 1 Croudson v. Leonard, 4 Cranch, 435 ; Rose v. Himely, Id. 292 ; Church V. Hubbart, 2 Cranch, 187 ; Thompson v. Stewart, 3 Conn. 171, 181 ; Green V. Waller, 2 Ld. Raym. 891, 893 ; Anon. 9 Mod. 66 ; Story on the Conflict of Laws, § 643 ; Hughes v. Cornelius, as stated by Lord Holt, in 2 Ld. Raym. 893. And see T. Raym. 473 ; 2 Show. 232, S. C. 2 Rex V. Luflfe, 8 East, 202 ; Fay v. Prentice, 9 Jur. 876. 3 6 Vin. Abr. 491, pi. 6, 7, 8 ; Hoyle v. Cornwallis, 1 Stra. 387 ; Page v. Faucet, Cro. El. 227 ; Harvey v. Broad, 2 Salk. 626 ; Hanson v. Shackelton, 4 Dowl. 48 ; Dawkins v. Smithwick, 4 Flor. R. 158 ; [Sasscer v. Farmers' Bank, 4 Md. 409.] ^ Clementi v. Golding, 2 Campb. 25 ; Commonwealth v. Kneeland, 20 Pick. 239. [Courts will take judicial notice of the customary abbreviations of Christian names. Stephen v. State, 11 Geo. 225; Weaver w. McElhenon, 13 Mis. 89. 5 Hoekin v. Cooke, 4 T. R. 314. The current coins of the country, whether established by statute or existing immemorially, will be judicially recognized. The Courts will also take notice of the character of the exist- ing circulating medium, and of the popular language in reference to it; Lampton v. Haggard, 3 Monr. 149 ; Jones «. Overstreet, 4 Monr. 547 ; [United States v. Burns, 5 McLean, 23 ; United States v. King, lb. 208;] but not of the current value of the notes of a bank at any particular time. Feemster v. Ringo, 5 Monr. 336. 6 Bank of Augusta v. Earle, 13 Pet. 519, 590; 1 Stark. Ev. 211, (6th Am. ed.) [See also Douglass v. Branch Bank, 19 Ala. 659.] 7 Taylor v. Barclay, 2 Sim. 221. Where a libel was charged, in stating that the plaintifi''s friends, in the advocacy of her claims, " had realized the fable of the Frozen Snake," it was held that the Court might judicially take notice that the knowledge of that fable of Phsedrus generally prevailed in society. Hoare v. Silverlock, 12 Jur. 695 ; 12 Ad. & El. 624, N. S. CHAP. IL] things judicially TAKEN NOTICE OF. 9 into states, provinces, counties, cities, towns, local parishes, or the like, so far as political government is concerned or affected ; and of the relative positions of such local divisions ; but not of their precise boundaries, farther than they may be described in public statutes.^ They will also judicially recog- nize the political constitution or frame of their own govern- ment ; its essential political agents or public officers, sharing in its regular administration ; and its essential and regular pelitical operations, powers, and action. Thus, notice is taken, by all tribunals, of the accession of the Chief E?:ecu- tive of the nation or state, under whose authority they act ; his powers and privileges ; ^ the genuineness of his signa- ture ; ^ the heads of departments, and principal officers of state, and the public seals ; * the election or resignation of a senator of the United States ; the appointment of a cabinet or foreign minister ; ^ marshals, and sheriffs,^ and the genu- ineness of their signatures ; "^ but not their deputies ; Courts 1 Deybel's case, 4 B. & Aid. 242 ; 2 Inst. 557 ; Fazakerley v. Wiltshire, 1 Stra. 469 ; Humphreys v. Budd, 9 Dowl. 1000 ; Koss v. Keddick, 1 Seam. 73 ; Goodwin v. Appleton, 9 Shepl. 453 ; Vanderwerker v. The People, 5 Wend. 530 ; [Ham v. Ham, 39 Maine, 263 ; lb. 291 ; State v. Dunwell, 3 R. I. 127 ; Wright v. Phillips, 2 Greene, (Iowa) 191 ; Robertson v. Teal, 9 Texas, 344; Wheeler v. Moody, lb. 372; Koss v. Austill, 2 Cal. 183; Kidder v. Blaisdell, 45 Maine, 461 ; Winnipiseogee Lake Co. v. Young, 40 N. H. 420.] But Courts do not take notice that particular places are or not in particular counties. Bruce v. Thompson, 2 Ad. & El. 789, N. S. s Elderton's case, 2 Ld. Rayra. 980, per Holt, C. J. 3 Jones V. Gale's Ex'r, 4 Martin, 635. And see Kex v. Miller, 2 W. Bl. 797 ; 1 Leach, Cr. Cas. 74 ; Rex v. Gully, 1 Leach, Cr. Cas. 98. * Rex V. Jones, 2 Campb. 121; Bennett v. The State of Tennessee, Mart. & Yerg. 133 ; Ld. Melville's case, 29 How. St. Tr. 707. And see as to seals, infra, § 503, and cases there cited. [The Courts of the United States will take notice of the persons who from time to time preside over the patent- office, whether permanently or transiently. York, &o.. Railroad Co. v. Wi- nans, 17 How. U. S. 30.] 5 Walden v. Canfield, 2 Rob. Louis. R. 466. 6 Holmau v. Burrow, 2 Ld. Raym. 794 ; [Ingraham r. State, 27 Ala. 17 ; Major V. State, 2 Sneed, (Tenn.) 11. The Court of Common Pleas will take judicial notice that the Queen's prison is in England. Wickens v. Goatley, 8 Eng. Law & Eq. 420, 422.] - 1 Alcock V. Whatmore, 8 Dowl. P. C. 615. 10 LAW OE EVIDENCE. [PART I. of general jurisdiction, their Judges,^ their seals, their rules and maxims in the administration of justice, and course of proceeding ;2 also, of public proclamations of war and peace,^ and of days of special public fasts and thanksgivings ; stated days of general political elections ; the sittings of the legis- lature, and its established and usual course of proceeding ; the privileges of its members, but not the transactions on its journals.* The Courts of the United States, moreover, take judicial notice of the ports and waters of the United States in which the tide ebbs and flows ; of the boundaries of the several States and judicial districts;^ and, in an especial 1 Watson V. Hay, 3 Kerr, 559. [The Supreme Court (of Ohio) will take judicial notice of the time fixed for the commencement of its sessions, but not of the duration of any particular session. Gilliland v. Sellers, 2 Ohio, (N. S.) 223. See also Lindsay v. Williams, 17 Ala. 229.] 2 Tregany v. Fletcher, 1 Ld. Kaym. 154 ; Lane's case, 2 Co. 16 ; 3 Com. Dig. 336, Courts, Q.; Newell v. Newton, 10 Pick. 470; Elliott v. Evans, 3 B. & P. 183, 184, per Ld. Alvanley, C. J.; Maberley v. Robins, 5 Taunt. 625 ; Tooker v. Duke of Beaufort, Sayer,-296. Whether Superior Courts are bound to take notice who are Justices of the inferior tribunals, is not clearly settled. In Skipp u. Hook, 2 Stra. 1080, it was objected that they were not ; but whether the case was decided on that, or on the other excep- tion taken, does not appear. Andrews, 74, reports the same case, " ex rela- tione alterius," and equally doubtful. And see Van Sandau v. Turner, 6 Ad. & El. 773, 786, per Ld. Denman. The weight of American authorities, seems rather on the affirmative side of the question. Hawks v. Kennebec, 7 Mass. 461; Eipley v. Warren, 2 Pick. 592 ; Despau v. Swindler, 3 Map- tin, N. S. 705 ; Eollain v. Lefevre, 3 Kob. Louis. R. 13. In Louisiana the Courts take notice of the signatures of executive and judicial officers to all official acts. Jones v. Gale's Ex'r, 4 Martin, 635 ; Wood v. Fitz, 10 Martin, 196. [Courts will also take notice of the times and places of holding their sessions. Kidder v. Blaisdell, 45 Maine, 461.] 3 Dolder v. Ld. Huntingfield, 11 Ves. 292 ; Rex v. De Berenger, 3 M. & S. 67 ; Taylor v. Barclay, 2 Sim. 213. i Lake v. King, 1 Saund. 131; Birt v. Eothwell, 1 Ld. Raym. 210, 343; Rex V. Wilde, 1 Lev. 296 ; 1 Doug. 97, n. 41 ; Rex v. Arundel, Hob. 109, 110, 111; Rex v. KnoUys, 1 Ld. Raym. 10, 15; Stockdale v. Hansard, 7 C. & P. 731 ; 9 Ad. & El. 1 ; 11 Ad. & El. 253 ; Sheriff of Middlesex's case. Id. 273 ; Cassidy v. Stewart, 2 M. & G. 437. 5 Story on Eq. Plead. § 24, cites United States v. La Vengeance, 3 Dall. 297; The Apollon, 9 Wheat. 374; The Thomas Jefferson, 10 Wheat. 428; Peyroux v. Howard, 7 Pet. 342. They will also recognize the usual course of the great inland commerce, by which the products of agriculture in the CHAP. II.] THINGS JUDICIALLY TAKEN NOTICE OF. 11 manner, of all the laws and jurisprudence of the several States in which they exercise an original or an appellate jurisdiction. The Judges of the Supreme Court of the United States are, on this account, bound to take judicial notice of the laws and jurisprudence of all the States and Territories.^ A Court of Errors will also take notice of the nature and extent of the jurisdiction of the inferior Court whose judgment it revises.^ In fine. Courts will generally take notice of whatever ought to be generally known within the limits qf their jurisdiction. In all these, and the like eases, where the memory of the Judge is at fault, he resorts to such documents of reference .as may be at hand, and he may deem worthy of confidence.^ valley of the Mississippi find their way to market. Gibson v. Stevens, 8 How. S; C. E. 384; [Lathrop i'. Stewart, 5 McLean, 167; they will take notice without proof of the legal coins of the United States. United States V. Burns, 5 McLean, 23 ; United States v. King, lb. 208. They also take judicial notice of treaties between the United States and foreign govern- ments ; and of the public acts and proclamations of those governments and their publicly authorized agents in carrying those treaties into eiFeot. United States v. Eeynes, 9 How. U. S. 127; and of the Spanish laws which prevailed in Louisiana, before its cession to the United States. United States V. Turner, 11 lb. 663.] 1 Ibid.; Owings v. Hull, 9 Pet. 607, 624, 625; Jasper v. Porter, 2 Mc- Lean, 579 ; [Miller v. McQuerry, 5 McLean, 469.] 2 Chitty V. Dendy, 3 Ad. & El. 319. [See March v. Commonwealth, 12 B. Mon. 25.] 3 Gresley on Evid. 295. 12 LAW OF EVIDENCE. [PAKT I. CHAPTER III. OF THE GROUNDS OF BELIEF. § 7. We proceed now to a brief consideration of the Gen- eral Nature and Principles of Evidence. No inquiry is here proposed into the origin of human knowledge ; it being assumed, on the authority of approved writers, that all that men know is referable, in a philosophical view, to perception and reflection. But, in fact, the knowledge acquired by an individual, through his own perception and reflection, is but a small part of what he possesses ; much of what we are content to regard and act upon as knowledge, having been acquired through the perception of others.^ It is not easy to conceive that the Supreme Being, whose wisdom is so con- spicuous in aU his works, constituted man to believe only upon his own personal experience ; since in that case the world could neither be governed nor improved ;- and society must remain in the state in which it was left by the first generation of men. On the contrary, during the period of childhood, we believe implicitly almost all that is told us ; and thus are furnished with information which we could not otherwise obtain, but which is necessary, at the time, for our present protection, or as the means of future improvement. This disposition to believe may be termed instinctive. At an early period, however, we begin to find that, of the things told to us, some are not true, and thus our implicit reliance on the testimony of others is weakened ; first, in regard to particular things in which we have been deceived ; then in regard to persons whose falsehood we have detected ; and, as these instances multiply upon us, we gradually become more and more distrustful of such statements, and learn by 1 Abercrombie on the Intellectual Powers, Part II., sec. 1, pp. 45, 46. CHAP. III.] GROUNDS OF BELIEF. 13 experience the necessity of testing them by certain rules. Thus, as our ability to obtain knowledge by other means increases, our instinctive reliance on testimony diminishes, by yielding to a more rational belief.^ 1 Gambler's Guide, p. 87 ; McKinnon's Philosophy of Evidence, p. 40. This subject is treated more largely by Dr. Reid in his profound Inquiry into the Human Mind, ch. 6, sec. 24, p. 428-434, in these words: — " The wise and beneficent Author of Nature, who intended 'that we should be social creatures, and that we should receive the greatest and most important part of our knowledge by the information of others, hath, for these purposes, 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 power- ful 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 a natural impulse. Lying, on the contrary, is doing violence to our nature ; and is never practised, even by the worst men, without some temptation. Speaking truth is like using our natural food, which we would do from appetite, althbugh it answered no end ; but lying is like taking physic, which is nauseous to the taste, and which no man takes but for some end which he cannot otherwise attain. If it should be objected, that men maybe influenced by moral or political considerations to speak truth, and, therefore, that their doing so is no proof of such an orig- inal principle as we have mentioned ; I answer, first, that moral or political considerations can have no influence until we arrive at years of understand- ing and reflection ; and it is certain, from experience, that children keep to truth invariably, before they are capable of being influenced by such con- siderations. Secondly, when we are influenced by moral or political con- siderations, we must be conscious of that influence, and capable of perceiving it upon reflection. . Now, when I reflect upon my actions most attentively, I am not conscious that, in speaking truth, I am influenced on ordinary oc- casions by any motive, moral or political. I find that truth is always at , the door of my lips, and goes forth spontaneously, if not held back. It requires neither good nor bad intention to bring it forth, but only that I be artless and undesigning. There may, indeed, be temptations to falsehood, which would be too strong for the natural principle of veracity, unaided by prin- ciples of honor or virtue ; but where there is no such temptation, we speak truth by instinct ; and this instinct is the principte I have been explaining. By this instinct, a real connection is formed betvfeen our words and our thoughts, and thereby the former become fit tp 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 com- paratively few, the authority of human testimony is only weakened by them, VOL. I. 2 14 LAW OF EVIDENCE, [PART I. m § 8. It is true, that in receiving the knowledge of facts from the testimony of others, we are much influenced by 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 counterpart to the former ; and as that may be called the principle of veracity, we shall, for want of a more proper name, call this the principle of credulity. It is unlimited in children, until they meet with instances of deceit and falsehood ; and it retains a very considerable degree of strength through life. If nature had left the mind of the speaker in sequilibrio, without any inclination to the side of truth more than to that of falsehood, children would lie as often as they speak truth, until reason was so far ripened, as to suggest the imprudence of lying, or conscience, as to suggest its immorality. And if nature had left the mind of the hearer in aequilibrio, without any inclination to the side of belief more than to that of disbelief, we should take no man's word, until we had positive evidence that he spoke truth. His testimony would, in this case, have no more authority than his dreams, which may be true or false ; but no man is disposed to believe them, on this account, that they were dreamed. It is evident, that in the matter of testimony, the balance of human judg- ment is by nature inclined to the side of belief; and turns to that side of itself, when there is nothing put into the opposite scale. If it was not so, no proposition that is uttered in discourse would be believed, until it was exam- ined 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. Children, on this supposition, would be absolutely incredulous, and therefore absolutely incapable of in- struction ; those who had little knowledge of human life, and of the manners and characters of men, would be in the next degree incredulous ; and the most credulous men would be those of greatest experience, and of the deepest penetration ; because in many cases, they would be able to find good reasons for believing testimony, which the weak and the ignorant could not discover. In a word, if credulity were the effect of reasoning and experience, it must grow up and gather strength, in the same proportion as reason and ex- perience do. But if it is the gift of nature, it will be strongest in childhood, and limited and restrained by ex,perience ; and the most superficial view of human life shows, that the last is really the case, and not the first. It is the intention of nature, that we should be carried in arms before we are able to walk upon our legs ; and «t is likewise the intention of nature, that our belief should be guided by the authority and reason of others, before it can be guided by our own reason. The weakness of the infant, and the natural affection of the mother, plainly indicate the former ; and the natural cre- dulity of youth and authority of age as plainly indicate the latter. The in- fant, by proper nursing and care, acq Jres strength to walk without support. CHAP. Iir.] GROUNDS OF BELIEF. 15 their accordance with facts previously known or believed ; and this constitutes what is termed their probability. State- ments, thus probable, are received upon /evidence much less cogent than we require for the belief of those which do not accord with our previous knowledge. But while these state- ments are more readily received, and justly relied upon, we should beware of unduly distrusting all others. While un- bounded credulity is the attribute of weak minds, which seldom think or reason at all, — quo magis nesciunt eo magis admirantur, — unlimited scepticism belongs only to those who make their own knowledge and observation the exclusive standard of probability. Thus the king of Siam rejected the testimony of the Dutch ambassador, that in his country, water was sometimes congealed into a solid mass; for it was utterly contrary to his own experience. Sceptical philosophers, inconsistently enough with their own prin- ciples, yet true to the nature of man, continue to receive a large portion of their knowledge upon testimony derived, not from their own experience, but from that of other men ; and this, even when it is at variance with much of their own personal observation. Thus, the testimony of the historian is received with confidence, in regard to the occurrences of Reason hath likewise her infancy, when she must be carried in arms ; then she leans entirely upon authority, by natural instinct, as if she was con- scious of her own weakness ; and without this support she becomes vertig- inous. When brought to maturity by proper culture, she begins to feel her own strength, and leans less upon the reason of others ; she learns to suspect testimony in some cases, and to disbelieve it in others ; and sets bounds to that authority,' to which she was at first entirely subject. But still, to the end of life, she finds a necessity of borrowing light from testi- mony, where she has none within herself, and of leaning in some degree upon the reason of others, where she is conscious of her own imbecility. And as, in many instances, Reason, even in her maturity, borrows aid from testimony, so in others she mutually gives aid to it and strengthens its au- thority. For, as we find good reason to reject testimony in some cases, so in others we find good reason to rely upon it with perfect security, in our most important concerns. The character, the number, and the disinterestedness of witnesses, the impossibility of collusion, and the incredibility of their con- curring in their testimony without collusion, may give an irresistible strength to testimony, compared to which its native and intrinsic authority is very inconsiderable." 16 LAW OP EVIDENCE. [PART I. ancient times ; that of the naturalist and the traveller, in regard to the natural history and civil condition of other countries ; and that of the astronomer, respecting the heav- enly bodies ; facts, which, upon the narrow basis of his own " firm and unalterable experience," upon which Mr. Hume so much relies, he would be bound to reject, as wholly un- worthy of belief. § 9. The uniform habits, therefore, as well as the necessi- ties of mankind, lead us to consider the disposition to be- lieve, upon the evidence of extraneous testimony, as a funda- mental principle of our moral nature, constituting the general basis upon which all evidence may be said to rest.^ § 10. Subordinate to this paramount and original principle, it may, in the second place, be observed, that evidence rests upon our faith in human testimony, as sanctioned by experi- ence ; that is, upon the general experienced truth of the state- ments of men of integrity, having capacity and opportunity for observation, and without apparent influence from passion or interest to pervert the truth. This belief is strengthened by our previous knowledge of the narrator's reputation for veracity ; by the absence of conflicting testimony ; and by ' the presence of that which is corroborating and cumulative. § 11. A third basis of evidence is the known and experi- enced connection subsisting between collateral facts or cir- cumstances, satisfabtorily proved, and the fact in controversy. This is merely the legal application, in other terms, of a proc- ess, familiar in natural philosophy, showing the truth of an hypothesis by its coincidence with existing phenomena. The connections and coincidences, to which we refer, may be either physical or moral ; and the knowledge of them is de- rived from the known laws of matter and motion, from ani- mal instincts, and from the physical, intellectual, and moral constitution and habits of man. Their force depends on their sufiiciency to exclude every other hypothesis" but the 1 Abercrombie on the Intellectual Powers, Part II., sec. 3, p. 70-75. CHAP. III.] GROUNDS OP BELIEF, 17 one under consideration. Thus, "the possession of goods re- cently stolen, accompanied with personal proximity in point of time and place, and inability in the party charged, to show how he came by them, would seem naturally, though not necessarily, to exclude every other hypothesis but that of his guilt. Bat the possession of the same goods, at a remoter time and place, would warrant no such conclusion, as it would leave room for the hypothesis of their having been lawfully purchased in the course of trade. Similar to this in principle is the rule of noscitur a sociis, according to which the meaning of certain words, in a written instrument, is ^^Bfcertained by the context. § 12. Some writers have mentioned yet another ground of the credibility of evidence, namely, the exercise of our reason upon the effect of coincidences in testimony, which, if collu- sion be excluded, cannot be accounted for upon any other hypothesis than that it is true.^ It has been justly remarked, that progress in knowledge is not confined, in its results, to the mere facts which we acquire, but it has also an extensive influence in enlarging the mind for the further reception, of truth, and setting it free from many of those prejudices which influence men, whose minds are limited by a narrow field of observation.^ It is also true that, in the actual occurrences of human life, nothing is inconsist^ent.^ Every event which actually transpires has its appropriate relation and place in the vast complication of circumstances, of which the affairs of men consist; it owes its origin to those which have pre- ceded it ; it is intimately connected with all others which occur at the same time and place, and ofteri with those of remote regions ; and, in its turn, it gives birth to a thousand others which succeed.^ In all this, there is' perfect harmony; so that it is hardly possible to invent a story which, if closely compared with all the actual contemporaneous occurrences, may not be shown to be false. From these causes, minds. 1 1 Stark. Evid. 471, note. 2 Abercrombie on the Intellectual Powers, Part II., sec. 3, p. 71. 3 1 Stark. Evid. 496. 2* 18 LAW OF EVIDENCE. [PART I. deeply imbued with science, or enlarged by long and ma- tured experience, and close observation of the conduct and affairs of men, may, with a rapidity and certainty approach- ing to intuition, perceive the elements of truth or falser hood in the face itself of the narrative, without any regard to the narrator. Thus, Archimedes might have believed an account of the invention and wonderful powers of the steam-engine, which his unlearned countrymen would have rejected- as incredible; and an experienced Judge may in- stantly discover the falsehood of a witness, whose story an inexperienced Jury might be inclined to believe. But thougU. the mind, in these cases, seems to have acquired a ne^ power, it is properly to be referred only to experience and observation. § 13. In trials of fact, it will generally be found that the factum probandum is either directly attested by those who speak from their own actual and personal knowledge of its existence, or it is to be inferred from other facts, satisfactorily proved. In the former case, the proof rests upon the second ' ground before mentioned, namely, our faith in human verac- ity, sanctioned by experience. In the latter case, it rests on the same ground, with the addition of the experienced con- nection between the collateral facts thus proved and the fact which is in controversy ; constituting the third basis of evidence before stated^ The facts proved are, in both cases, directly attested. In the former case, the proof applies im- mediately to the factum probandum, without any intervening process, and it is therefore called direct or positive testimony. In the latter case, as the proof applies immediately to collat- eral facts, supposed to have a connection, near or remote, with the fact in controversy, it is termed circumstantial ; and sometimes, but not with entire a.ccuTa.cy, presumptive. Thus, if a witness testifies that he saw A inflict a mortal wound on B, of which he instantly died ; this is a case of direct evi- dence ; and, giving to the witness the credit to which men are generally entitled, the crime is satisfactorily proved. If a witness testifies that a deceased person was shot with a pistol, and the wadding is found to be part of a letter, ad- CHAP. III.] GROUNDS OF BELIEF. 19 dressed to the prisoner, the residue of which is discovered in his pocltet; here the facts themselves are directly attested ; but the evidence they afford is termed circumstantial; and from these facts, if unexplained by the prisoner, the Jury may, or may not, deduce, or infer, or presume his guilt, ac- cording as they are satisfied, or not, of the natural connec- tion between similar facts, and the guilt of the person thus connected with them. In both cases, the veracity of the witness is presumed, in the absence of proof to the contrary ; but in the latter case there is an additional presumption or inference, founded on the known usual connection between the facts proved, and the guilt of the party implicated. This operation of the mind, which is more complex and difficult in the latter case, has caused the evidence, afforded by cir- cumstances, to be termed presumptive evidence ; though in truth, the operation is similar in both cases. § 13 a. Circumstantial evidence is of two kinds, namely, certain, or that from which the conclusion in question neces- sarily follows ; I and uncertain, or that from which the conclu- sion does not necessarily follow, but is probable only, and is obtained by a process of reasoning. Thus, if the body of a person of mature age is found dead, with a recent mortal wound, and the mark of a bloody left hand is upon the left arm, it may well be concluded that the person once lived, and that another person was present at or since the time when the wound was inflicted. So far the conclusion is cer- tain ; and the Jury would be bound by their oaths to find accordingly. But whether the death was caused by suicide or by murder, and whether the mark of the bloody hand was that of the assassin, or of a friend who attempted, though too late, to afford relief, or to prevent the crime, is a conclu- sion which does not necessarily foUow from the facts proved, but is obtained from these and other circumstances, by prob- able deductiA The conclusion, in the latter case, may be more or less satisfactory or stringent, according to the cir- cumstances. In civil cases, where the mischief of an errone- ous conclusion is not deemed remediless, it is not necessary that the minds of the Jurors be freed from all doubt ; it is 20 LAW OF EVIDENCE. [PART I. their duty to decide in favor of the party on whose side the weight of evidence preponderates, and according to the rea- sonable probability of truth. But in criminal cases, because of the more serious and irreparable nature of the conse- quences of a wrong decision, the Jurors are required to he satisfied, beyond any reasonable doubt, of the guilt of the accused, or it is their duty to acquit him; the charge not being proved by that higher degree of evidence which the law demands. In civil cases, it is sufficient if the evidence, on the whole, agrees with and supports the hypothesis, which it is adduced to prove ; but in criminal cases, it must exclude every other hypothesis but that of the guilt of the party. In both cases, a verdict may well be founded on circumstances alone ; and these often lead to a conclusion far more satis- factory than direct evidence can produce.^ 1 See Bodine's case, in the New York Legal Observer, Vol. 4, pp. 89, 95, ■where the nature and value of this kind of evidence are fully discussed. See infra. § 44 to 48. And see Commonwealth v. Webster, 5 Cush. 296. 310-319 ; [People v. Videto, 1 Parker, C. R. 603. The Court cannot be required to instruct the Jury that if the proof rests upon circumstantial evi- dence, then the Jury must be satisfied that the government has proved such a coincidence of circumstances as excludes every hypothesis except the guilt of the prisoner ; and unless they are satisfied that the proof does exclude every other hypothesis, then they ought not to convict the prisoner. " Tlie true rule is, that the circumstances must be such as to produce a moral cer- tainty of guilt, and to exclude any other reasonable hypothesis.''^ Common- wealth V. Goodwin, 14 Gray, 55.] CHAP. ly.] PRESUMPTIVE EVIDENCE. 21 CHAPTER IV. OF PKESTJMPTIVB EVIDENCE, \ 14. The general head of Presumptive Evidence is usu- ally divided into two branches, namely, presumptions of law, and presumptions of fact. Presumptions of Law consist of those rules, which, in certain cases, either forbid or dispense with any ulterior inquiry. They are founded, either upon the first principles of justice ; or the laws of nature ; or the experienced course of human conduct and affairs, and the connection usually found to exist between certain things. The general doctrines of presumptive evidence are not there- fore peculiar to municipal law, but are shared by it in com- mon with other departments of science. Thusj the presump- tion of a malicious intent to kill, from the deliberate use of a deadly weapon, and the presumption of aquatic habits in an animal found with webbed feet, belong to the same philoso- phy, differing only in the instaifce, and not in the principle, of its application. The one fact being proved or ascertained, the other, its uniform concomitant, is universally and safely presumed. It is this uniformly experienced connection, which leads to its recognition by the law without other proof; "the presumption, however, having more or less force, in propor- tion to the universality of the experience. And this has led to the distribution of presumptions Of law into two classes, namely, conclusive and disputable... § 15. Conclusive, or, as they are elsewhere termed, impera- tive, or absolute presumptions of law, are rules determining the quantity of evidence requisite for the support of any particular averment, which is not permitted to be overcome by any proof that the fact is otherwise. They consist chiefly of those cases in which the long-experienced connection, 22 LAW OF EVIDENCE. [PAET I. before alluded to, has been found so general and uniform as to render it expedient for the common good, that this con- nection should be taken to be inseparable and universal. They have been adopted by common consent, from motives of public policy, for the sake of greater certainty, and the promotion of peace and quiet in the community ; and there- fore it is, that all corroborating evidence is dispensed with, and all opposing evidence is forbidden.^ § 16. Sometimes this common consent is expressly de- clared, through the medium of the legislature, in statutes. Thus, by the statutes of limitation, where a debt has been created by simple contract, and has not been distinctly recognized, within six years, as a subsisting obligation, no action can be maintained to recover it ; that is, it is conclu- sively presumed to have been paid. A trespass, after the lapse of the same period, is, in like manner, conclusively pre- sumed to have been satisfied. So, the possession of land, for the length of time mentioned in the statutes of limitation, under a claim of absolute title and ownership, constitutes, against all persons but the sovereign, a conclusive presump- tion of a valid grant.^ 1 The presumption of the Romail Law is defined to be, — " Conjectuia, ducta ab eo, quod ut pluriinuni fit. Ea conjectura vel a lege inducitur, vel a judice. Qufe ab ipsa lege inducitur, vel ita oomparata, ut probationem con- trarii baud admittat ; vel ut eadem possit elidi. Priorem doutores prcesump- tionem juris bt de jube, posterlorem prcesumptinnem juris, adpellant. Quae a Judice indicitur conjectura, prmsumptio hominis vocari solet; et semper adniittit probationem contrarii, quamvis, si alicujus momenti sit, pro- bandi onere relevet." Hein. ad Pand. Pars iv. § 124. Of the former, answering to our conclusive presumption, Mascardus observes, — " Super hac praesumptione lex firmum sancit jus, et earn pro verUate, habel." De Probationibus, Vol. 1, Quaest. x. 48. An exception to the general conclu- siveness of this class of presumptions is allowed in the case of admissions in judicio, which will be hereafter mentioned. See infra, §§ 169, 186, 205, 206. . 2 This period has been limited differently, at different times ; but, for the last fifty years, it has been shortened at succeeding revisions of the law, both in England and the United States. By Stat. 3 & 4 Wm. 4, c. 27, all real actions are barred, after twenty years from the time when the right of action accrued. And this period is adopted in most of the United States, though CHAP. IV.] PKBSTJMPTIVB EVIDENCE. 23 § 17. In other cases, the common consent, by which this class of legal presumptions is established, is declared through the medium of the judicial tribunals, it being the Common Law of the land ; both being alike respected, as authorita- tive declarations of an imperative rule of law, against the operation of which no averment or evidence is received. Thus, the uninterrupted enjoyment of an incorporeal here- ditament for a period beyond the memory of man, is held to furnish a conclusive presumption of a prior grant of that which has been so enjoyed. This is termed a title by pre- scription.^ If this enjoyment has been not only uninter- in some of the States it is reduced to seven years, while in others it is pro- longed to fifty. See 3 Cruise's Dig. tit. 31, ch. 2, the synopsis of Limita- tions at the end of the chapter, (Greenleaf's ed.) See also 4 Kent, Comm. 188, note (a). The same period in regard to the title to real property, or, as some construe it, only to the profits of the land, is adopted in the Hindu Law. See Macnaghten's Elements of Hindu Law, Vol. 1, p. 201. 1 3 Cruise's Dig. 430, 431, (Greenleaf's ed.) " PrEeseriptio est titulus, ex usu et tempore substantiam capiens, ab authoritate legis.'' Co. Litt. 113, a. What length of time constitutes this period of legal memory, has been much discussed among lawyers. In this country, the Courts are inclined to adopt the periods mentioned in the statutes of limitation, in all cases analogous in principle. Coolidge v. Learned, 8 Pick. 504 ; Melvin v. Whiting, 10 Pick. 295 ; Ricard v. Williams, 7 Wheat. 110. In England, it is settled by Stat. 2 & 3 Wm. 4, c. 71, by which the period of legal memory has been hmited as follows : in cases of rights of common or other benefits arising out of lands, except tithes, rents, and services, prima facie to thirty years ; and conclusively to sixty years, unless proved to have been held by consent, expressed by deed or other writing ; in cases of aquatic rights, ways, and other easements, prima fade to twenty years ; and conclusively to forty years, unless proved in like manner, by written evidence, to have been enjoyed by consent of the owner ; and in cases of lights, conclusively to twenty years, unless proved in like manner, to have been enjoyed by con- sent. In the Roman Law, prescriptions were of two kinds : exiinctive and acquisitioe. The former referred to rights of action, which, for the most part, were barred by the lapse of thirty years. The latter had regard to the mode of acquiring property by long and uninterrupted possession ; and this, in the case of immovable or real property, was limited, inter prcesentes, to ten years, and inter absenies, to twenty years. The student will find this doctrine fully discussed in Mackeldey's Compendium of Modern Civil Law, Vol. 1, p. 200-205, 290, et seq. (Amer. ed.) with the learned notes of Dr. Kaufman. See also Novel. 119, c. 7, 8. [See also 2 Greenl. Ev. (7th ed.) § 537-546, tit. Prescription.] 24 LAW OF EVIDENCE. [PART I. rupted, but exclusive and adverse in its character, for the period of twenty years, this also has been held, at Common Law, as a conclusive presumption of title.^ There is no dif- ference, in principle, whether the subject be a corporeal or an incorporeal hereditament ; a grant of land may as well be presumed as a grant of a fishery, or a common, or a way.^ But, in regard to the effect of possession alone for a period of time, unaccompanied by other evidence, as affording a presumption of title, a difference is introduced, by reason of the statute of limitations, between corporeal subjects, such as lands and tenements, and things incorporeal ; and it has been held, that a grant of lands, conferring an entire title, cannot be presumed from mere possession alone, for any length of time short of that prescribed by the statute of lim- itations. The reason is, that, with respect to corporeal here- ditaments, the statute has made all the provisions which the law deems necessary for quieting possessions ; and has there- by taken these ca"ses out of the operation of the Common Law. The possession of lands, however, for a shorter period, when coupled with other circumstances, indicative of owner- ship, may justify a Jury in finding a grant; but such cases do not fall within this class of presumptions.^ § 18. Thus, also, a sane man is conclusively presumed to contemplate the natural and probable consequences of his own acts ; and, therefore, the intent to murder is conclusively inferred from the deliberate use of a deadly weapon.* So, 1 Tyler v. Wilkinson, 4 Mason, 397, 402; Ingraham v. Hutchinson, 2 Conn. 584; Bealey v. Shaw, 6 East, 208, 215 ; Wright v. Howard, 1 Sim. & Stu. 190, 203 ; Stricklor v. Todd, 10 Serg. & Rawle, 63, 69 ; Balston v. Bensted, 1 Campb. 463, 465 ; Daniel u. North, 11 East, 371 ; Sherwood v. Burr, 4 Day, 244; Tinkham v. Arnold, 3 Greenl. 120; Hill v. Crosby, 2 Pick. 466. See Best on Presumptions, p. 103, n. (m) ; Bolivar Manuf. Co. V. Neponset Manuf. Co. 16 Pick. 241. See also post, Vol. 2, § 537-546, tit. Pbescription. 2 Ricard v. Williams, 7 Wheat. 109 ; Prop'rs of Brattle Street Church v. BuUard, 2 Met. 363. 3 Sumner u. Child, 2 Conn. 607, 628-632, per Gould, J.; Clark «. Faunce, 4 Pick. 245. ■» 1 Kuss. on Crimes, 658-660 ; Rex v. Dixon, 3 M. & S. 15 ; 1 Hale, CHAP. IV.] PRESUMPTIVE EVIDENCE. 25 the deliberate publication of calumny, -which the publisher knows to be false, or has no reason to believe to be true, raises a conclusive presumption of malice.^ So the neglect of a party to appear and answer to process, legally com- menced in a Court of competent jurisdiction, he having been duly served therewith and summoned, is taken conclusively against him as a confession of the matter charged.^ P. C. 440, 441 ; Britton, 50, § 6. But if death does not ensue till a year and a day, (that is, a full year,) after the stroke, it is conclusively presumed that the stroke was not the sole cause of the death, and it is not murder. 4 Bl. Comm. 197; Glassford on Evid. 592. The doctrine of presumptive evidence was familiar to the Mosaic Code ; even to the letter of the principle stated in the text. Thus, it is laid'down, in regard to the manslayer, that "if he smite him with an instrument of iron, so that he die," — or, "if he smite him with throwing a stone wherewith he may die, and he die," — or, " if he smite him with a hand-toeapon of wood lehereicith he may die, and he die ; he is a murdferer.'' See Numb. xxxv. 16, 17, 18. Here, every instru- ment of iron is conclusively taken to be a deadly weapon ; and the use of any such weapon raises a conclusive presumption of malice. The same presump- tion arose from lying in ambush, and thence destroying another. Id. v. 20. But, in other cases, the existence of malice was to be proved, as one of the facts in the case ; and, in the absence of malice, the offence was reduced to the degree of manslaughter, as at the Common Law. Id. v. 22, 23. This very reasonable distinction seems to have been unknown to the Gentoo Code, which demands life for life in all cases, except where the culprit is a Bramin. "If a man deprives another of life, the magistrate shall deprive that person of life." Halhed's Gentoo Laws, Book 16, sec. 1, p. 2^3. Formerly, if the mother of an illegitimate child, recently born and found dead, concealed the fact of its birth and death, it was conclusively presumed that she murdered it. Stat. 21 Jac. 1, c. 37; probably copied from a similar edict of Hen. 2 of France, cited by Domat. But this unreasonable and barbarous rule is now rescinded, both in England and America. The subject of implied malice, from the unexplained fact of killing with a lethal weapon, was fully discussed in Commonwealth v. York, 9 Met. 103, upon a difference of opinion among the learned Judges ; and the rule there laid down, in favor of the inference, was reaffirmed in Commonwealth v, Webster, 5 Cush. 805. [See also infra, § 34.] ' Bodwell V. Osgood, 3 Pick. 379 ; Haire v. Wilson, 9 B. & C. 643 ; Rex V. Shipley, 4 Doug. 73, 177, per Ashhurst, J. [See also post, Vol. 2, (7th ed.) § 418.] 2 2 Erskine, Inst. 780. Cases of this sort are generally regulated by stat- utes, or by the rules of practice established by the Courts ; but the prin- ciple evidently belongs to a general jurisprudence. So is the Roman Law. 26 LAW OP EVIDENCE. [PART 1. § 19. Conclusive presumptions are also made in favor of judicial proceedings. Thus the records of a Court of justice are presumed to have been correctly made ; ^ a party to the record is presumed to have been interested in the suit;^ and after verdict, it will be presumed that those facts, without proof of which the verdict could not have been found, were proved, though they are not expressly and distinctly alleged in the record ; provided it contains terms sufficiently general to comprehend them in fair and reasonable intendment.^ The presumption will also be made, after twenty years, in, favor of every judicial tribunal acting within its jurisdiction, that all persons concerned had due notice of its proceedings.* A like presumption is also sometimes drawn from the solem- nity of the act done, though not done in Court, Thus a bond or other specialty is presumed to have been made " Contumaeia, eorum, qui, jus dicenti non obtemperant, I'tis damno coerce- tur." Dig. lib. 42, tit. 1, 1. 53. " Si citatus aliquis non compareat, habe- tur pro consentiente." Masoard. De Prob. Vol. 3, p. 253, concl. 1159, n. 26. See further on this subject, infra, § 204-211. The right of the party to have notice of the proceedings against him, before his non-appearance is taken as a confession of the matter alleged, has been distinctly recognized in the Courts both of England and America, as a rule, founded in the first principles of natural justice, and of universal obligation. Fisher v. Lane, 3 Wils. 302, 303, per Lee, C. J. ; The Mary, 9 Crancb, 144, per Marshall, C. J. ; Bradstreet u The Neptune Ins. Co. 3 Sumn. 607, per Story, J. 1 Reed v. Easton, 1 East, 355. Kes judicata pro veritate accipitur. Dig. lib. 50, tit. 17, 1. 207. .2 Stein V. Bowman, 13 Pet. 209. 3 Jackson V. Pesked, 1 M. & S. 234, 237, per Ld. Ellenborough ; Stephen on PI. 166, 167; Spiers v. Parker, 1 T. K. 141; [Lathrop c. Stewart, 5 McLean, 167 ; Sprague v. Litherberry, 4 McLean, 442 ; Beale «. Common- wealth, 25 Penn. State R. 11; Hordiman v. Herbert, 11 Texas, '656. In pleading a discharge in bankruptcy, if the plea shows the district court to have had jurisdiction, and to have proceeded, on the petition to decree the discharge, all the intermediate steps will be presumed to have been regu- larly taken. Morrison v. Woolson, 9 Foster, N. H. 510.] 4 Brown V. Wood, 17 Mass. 68. A former judgment, still in force, by a Court of competent jurisdiction, in a suit between the same parties, is con- clusive evidence, upon the matter directly in question in such suit, in any subsequent action or proceeding. Duchess of Kingston's case, 11 Howell, St. R. 261 ; Ferrer's case, 6 Co. 7. The effect of judgments will be farther considered hereafter. See infra, § 528-543. CHAP. IV.] PRESUMPTIVE EVIDENCE. 27 upon good consideration, as long as the instrument remains unimpeached.^ § 20. To this class of legal presumptions may be referred one of the applications of the rule, Ex diuturnitate temporis omnia prcBSumv/ntur rite et solenniter esse acta ; namely, that which relates to transactions, which are not of record, the proper evidence of which, after the lapse of a little time, it is often impossible, or extremely difficult to produce. The rule itself, is nothing more than the principle of the statutes of limitation, expressed in a different form, and applied to other subjects. Thus, where an authority is given by law to executors, administrators, guardians, or other oflScers, to make sales of lands, upon being duly licensed by the Courts, and they are required to advertise the sales in a particular manner, and to observe other formalities in their proceed- ings ; the lapse of sufficient time, (which in most cases is fixed at thirty years,) ^ raises a conclusive presumption that, all the legal formalities of the sale were observed. The' 1 Lowe V. Peers, 4 Burr. 2225. [A certificate to the oath of commis- sioners, appointed to talse depositions hi Nova Scotia, was signed " A. B.,- Justice of the Supreme Court of Nova Scotia," and it was held that the Court will intend that he had power to administer an oath, though it be no- where averred in the proceedings. Salter v. Applegate, 3 Zabr. 115.] ® See Pejepscot Prop'rs v. Ransom, 14 Mass. 145 ; Blossom v. Cannon, Id. 177 ; Colman v. Anderson, 10 Mass. 105. In some cases, twenty years has been held sufficient. As, in favor of the acts of sheriffs. Drouet v. Rice, 2 Rob. Louis. It. 874. So, after partition of lands by an incorporated land company, and a several possession, accordingly, for twenty years, it was presumed that its meetings were duly notified. Society, &c. v. Wheeler, 1 New Hamp. R. 310. [See also King v. Little, 1 Cush. 436 ; Freeman «. Thayer, 33 Maine, 76 ; Cobleigh v. Young, 15 N. H. 493 ; Freeholders of Hudson Co. v. State, 4 Zabr. 718 ; State v. Lewis, 2 New Jersey, 564 ; Alle- gheny V. Nelson, 25 Penn. St. R. 332 ; Plank-road Co. r. Bruce, 6 Md. 457 ; Emmons v. Oldham, 12 Texas, 18. Where nine years before the com- mencement of the suit, a meeting of a proprietary had been called, on the application of certain persons representing themselves to be proprietors, it was held that there was no legal presumption that the petitioners for the meeting were proprietors, however the rule might be as to ancient trans- actions, but that proof of some kind, to show the fact that they were proprie- tors, must be adduced to sustain the issue. Stevens v. Taft, 3 Gray, 487.] 28 LAW OF EVIDENCE. [PART I. license to sell, as well as the official character of the party, being provable by record or judicial registration, must in general be so proved ; and the deed is also to be proved, in" the usual manner ; it is only the intermediate proceedings that are presumed. Probatis extremis, prcBSumuntur media} The reason of this rule is found in the gre'at probability, that the necessary intermediate proceedings were all regularly had, resulting from the lapse of so long a period of time, and the acquiescence of the parties adversely interested ; and in the great uncertainty of titles, as well as the other public mischiefs, which would result, if strict proof were required of facts so transitory in their nature, and the evidence of which is so seldom preserved with care. Hence it does not extend to records and public documents, which are supposed always to remain in the custody of the officers charged with their preservation, and which, therefore, must be proved, or their loss accounted for, and supplied by secondary evi- dence.^ Neither does the rule apply to cases of prescrip- tion.^ § 21. The same principle applies to the proof of the exe- cution of ancient deeds and wills. Where these instruments are more than thirty years old, and are unblemished by any alterations, they are said to prove themselves ; the bare pro- duction thereof is sufficient ; the subscribing witnesses being presumed to be dead. This presumption, so far as this rule of evidence is concerned, is not affected by proof, that the witnesses are living.* But it must appear that the instru- 1 2 Erskine, Inst. 782 : Earle v. Baxter, 2 W. Bl. 1228. Proof that one's ancestor sat in the House of Lords, and that no patent can be discovered, aflfords a presumption that he sat by summons. The Braye Peerage, 6 CI. & Fin. 657. See also, as to pre.suming the authority of an executor, Piatt v. McCullough, 1 McLean, 73. 2 Brunswick M. McKeen, 4 Greenl. 508; Hathaway v. Clark, 5" Pick. 490. 3 Eldridge v. Knott, Cowp. 215 ; Mayor of Kingston v. Horner, Id. 102. 4 Eex V. Farringdon, 2 T. R. 471, per Buller, J. ; Doe v. Wolley, 8 B. & C. 22; Bull. N. P. 255; 12 Vin. Abr. 84; Gov. &c. of Chelsea Water- works V. Cowper, \ Esp. 275 ; Hex v. Ryton, 5 T. R. 259 ; Rex v. Long CHAP. IV.l PRESUMPTIVE EVIDENCE. , 29 ment comes from such custody, as to aflford a reasonable pre- sumption in favor of its genuineness ; and that it is other- wise free from just grounds of suspicion ; ^ and in the case of a bond for the payment of money, there must be some indorsement of interest, or other mark of genuineness, with- in the thirty years, to entitle it to be read.^ Whether, if the deed be a conveyance of real estate, the party is bound first to show some acts of possession under it, is a point not per- fectly clear upon the authorities ; but the weight of opinion seems in the negative, as will hereafter be more fully, ex- plained.^ But after an undisturbed possession for thirty years, of any property, real or personal, it is too late to ques- tion the authority of the agent, who has undertaken to con- vey it,* unless his authority was by matter of record. § 22. Estoppels may be ranked in this class of presump- tions. A man is said to be estopped, when- he has done some act, which the policy of the law will not permit him to gainsay or deny. " The law of estoppel is not so unjust or absurd as it has been too much the custom to represent." ^ Buckby, 7 East, 45 ; McKenire v. Prazer, 9 Ves. 5 ; Oldnall v. Deakin, 3 C. & P. 462 ; Jackson v. Blanshan, 3 Johns. 292 ; Winu v. Patterson, 9 Peters, 674, 675; Bank United States i'. Dandridge, 12 Wheat. 70, 71 ; Henthorne V. Doe, 1 Blackf. 157 ; Bennet v. Runyon, 4 Dana, K. 422, 424; Cook ». Totten, 6 Dana, 110; Thurston v. Masterson, 9 Dana, 233; Hynde v. Vat- tiere, 1 McLean, 115; Walton. u. Coulson, Id. 124; Northrope u. Wright, 24 Wend. 221 ; [King v. Little, 1 Cush. 436 ; Settle v. Allison, 8 Geo. 201.] 1 Koe V. Rawlinga, 7 East, 279, 291 ; 12 Vin. Abr. 84, Evid. A. b. 5 ; Infra, §§ 142, 570 ; Swinnerton v. Marquis of Stafford, 3 Taunt. 91 ; Jack- son V. Davis, 5 Cowen, 123 ; Jackson v. Luquere, Id. 221 ; Doe v. Beynon, 4 P. & D. 193 ; Doe v. Samples, 3 Nev. & P. 254. 2 Forbes v. Wale, 1 W. Bl. 532 ; 1 Esp. 278, S. C; Infra, §§ 121, 122. 3 Infra, § 144, ngte (1.) < Stockbridgeu. West Stockbridge, 14 Mass. 257. Where there had been a possession of thirty-five years, under a legislative grant, it was held con- clusive evidence of a good title, though the grant was unconstitutional. Trustees of the Episcopal- Church in Newbern v. Trustees of Newbern Academy, 2 Hawks, 233. 5 Per Taunton, J., 2 Ad. & El. 291. [See Cruise's Dig. (Greenl. 2d ed.) tit. 32, ch. 20, § 64, note, (Greenl. 2d ed. Vol. 2, p. 611.)] 8* 30 LAW OF EVIDENCE. ^ [PAKT I. Its foundation is laid in the obligation which every man is under to speak and act according to the truth of the case, and in the policy of the law, to prevent the great mischiefs resulting from uncertainty, confusion, and want of confi- dence, in the intercourse of men, if they were permitted to deny that, which they have deliberately and solemnly asserted and received as true. If it be a recital of facts in a deed, there is implied a solemn engagement, that the facts are so, as they are recited. The doctrine of estoppels has, however, been guarded with great strictness ; not because the party enforcing it necessarily wishes to exclude the truth ; for it is rather to be supposed, that that is true, which the opposite party has already solemnly recited ; but because the estoppel may exclude the truth. Hence, estoppels must be certain to every intent ; for no one shall be denied setting up the truth, unless it is in plain and clear contradiction to his former alle- gations and acts.^ § 23. In regard to recitals in deeds, the general rule is, that all parties to a deed are bound by the recitals therein,^ 1 Bowman v. Taylor, 2 Ad. & El. 278, 289, per Ld. C. J. Denman ; Id. 291, per Taunton, J. ; Lainson v. Tremere, 2 Ad. & El. 792 ; Pelletrau v. Jackson, 11 Wend. 117; 4 Kent, Comm. 261, note; Carver u. Jackson, 4 Peters, 83. , 2 But it is not true, as a general proposition, that one claiming land under a deed to which he was not a party, adopts the 'recitals of facts in an ante- rior deed, which go to make up his title. Therefore, where, by a deed made in January, 1796, it was recited that S. became bankrupt in 1781, and that, by virtue of the proceedings under the commission, certain lands had been conveyed to W., and thereupon W. conveyed the same lands to B., for the purpose of enabling him to make a tenant to the prseoipe ; to which deed B. was not a party ; and afterwards, in February, 1796, B., by a deed, not re- ferring to the deed last mentioned, nor to the bankruptcy, conveyed the premises to a tenant to the praecipe, and declared the uses of the recovery to be to his mother for life, remainder to himself in fee ; it was held that B., in a suit respecting other land, was not estopped from disputing S.'s bank- ruptcy. Doe V. Shelton, 3 Ad. & El. 265, 283. If the deed recite that the consideration was paid by a husband and wife, parol evidence is admissible to show that the money consisted of a legacy given to the wife. Doe v. Statham, 7 D. & Ry. 141. CHAP. ly.] PRESUMPTITE EVIDENCE. 31 • which operates as an estoppel, working on the interest in the i land, if it be a deed of conveyance, and binding both parties' and privies ; privies in blood, privies in estate, and privies in law. Between such parties and privies, the deed or other matter recited needs not at any time be otherwise proved, the recital of it in the subsequent deed being conclusive. It is not offered as secondary, but as primary evidence, which cannot be averred against, and which forms a muniment of title. Thus, the recital of a lease, in a deed of release, is conclusive evidence of the existence of the lease against the parties,, and all others claiming under them in privity of estate.^ 1 Shelly V. Wright, WiUes, 9; Crane v. Morris, 6 Peters, 611 ; Carver v. Jackson, 4 Peters, 1, 83; Cossens v. Cossens, Willes, 25., But such recital does not bind strangers, or those who claim by title paramount to the deed. It does not bind persons claiming by an adverse title, or persons claiming from the parties by a title anterior to the date of the reciting deed. See Carver v. Jackson, ub. sup. In this case, the doctrine of estoppel is very fully expounded by Mr. Justice Story, where, after stating the general prin- ciple, as in the text, with the qualification just mentioned, he proceeds (p. 83) as follows. " Such is the general rule. But there are cases, in which such a recital may be used as evidence even against strangers. If, for instance, there be the recital of a lease in a deed of release, and in a suit against a stranger the title under the release comes in question, there the recital of the lease in such a release is not per se evidence of the existence of the lease. But if the existence and loss of the lease be established by other evidence, there the recital is admissible, as secondary proof, in the ab- sence of more perfect evidence, to establish the contents of the lease ; and if the transaction be an ancient one, and the possession has been long held under such release, and is not otherwise to be accounted for, there the re- cital will of itself, under such circumstances, materially fortify the presump- tion, from lapse of time and length of possession, of the original existence of the lease. Leases, like other deeds and grants, may be presumed from long possession, which cannot otherwise be explained; and, under such circum- stances, a recital of the fact of such a lease, in an old deed, is certainly far stronger presumptive proof in favor of such possession under title, than the naked presumption arising from a mere unexplained possession. Such is the general result of the doctrine to be found in the best elementary writers on the subject of evidence. It may not, however, be unimportant to examine a few of the authorities in support of the doctrine on which we rely. The cases of Marchioness of Anandale v. Harris, 2 P. Wms. 432, and Shelly v. Wright, Willes, 9, are sufficiently direct, as to the operation of recitals by 32 LAW OF BVIDENCB, [PART I. ft ^ § 24. Thus, also, a grantor is, in general, estopped by his deed from denying, that he had any title in the thing way of estoppel between the parties. In Ford v. Gray, 1 Salk. 285, one of the points ruled was ' that a recital of a lease in a deed of a release is good evidence of such lease against the releasor, and those who claim under higi ; but, as to others, it is not, without proving that there was such a deed, and it was lost or destroyed.' The same case is reported in 6 Mod. 44, where it is said that it was ruled, ' that the recital of a lease in a deed of release is good evidence against the releasor, and those that claim under him.' It is then stated, that ' a fine was produced, but no deed declaring the uses ; but a deed was offered in evidence, which did recite a deed of limitation of the uses, and the question was, whether that (recital) was evidence ; and the Court said, that the bare recital was not evidence ; but that, if it could be proved that such a deed had been [executed], and [is] lost, it would do if it were recited in another.' This was, doubtless, the same point asserted in the latter clause of the report in Salkeld ; and, thus explained, it is perfectly consistent with the statement in Salkeld ; and must be referred to a case where the recital was offered as evidence against a stranger. In any other point of view, it would be inconsistent with the preceding propositions, as well as with the cases in 2 P. Williams and Willes. In Trevivau v. Lawrence, 1 Salk. 276, the Court held, that the parties and all claiming under them were estopped from assert- ing that a judgment, sued against the party as of Trinity term, was not of that term, but of another term ; that very point having arisen and been decided against the party upon a scire facias on the judgment. But the Court there held, (what is very material to the present purpose,) that ' if a man makes a lease by indenture of D in which he hath nothing, and afterwards purchases D in fee, and afterwards bargains and sells it to A and his heirs, A shall be bound by this estoppel ; and, that where an estoppel works on the interest of the lands, it runs with the land into whose hands soever the land comes ; and an ejectment is maintainable upon the mere estoppel.' This decision is important in several respetts. In the first place, it shows that an estoppel may arise by implication from a grant, that the party hath an estate in the land, which he may convey, and he shall be estopped to deny it. In the next place, it shows that such estoppel binds all persons claiming the same land, liot only under the same deed, but under any subsequent conveyance from the same party; that is to say, it binds not merely privies in blood, but privies in estate, as subsequent grantees and alienees. In the next place, it shows that an estoppel, which (as the phrase is) works on the interest of the land, runs with it, into whosesoever hands the land comes. The same doctrine is recognized by Lord Chief Baron Comyns, in bis Digest, Estoppel, B. & E. 10. In the latter place (E. 10) he puts the case more strongly, for he asserts, that the estoppel binds, even though all the facts are found in a spe- cial verdict. ' But,' says he, and he relies on his own authority, ' where an estoppel binds the estate and converts it to an interest, the Court will adjudge CHAP. IV.] PRESUMPTIVE EVIDENCE. 33 granted. But this rule does not apply to a grantor acting officially, as a public agent oV trustee.^ A covenant of war- accordingly. As if A leases land to B for six years, in whieli he has nothing, and then purchases a lease of the same land for twenty-one years, and afterwards leases to C for ten years, and all this is found by a verdict ; the Court will adjudge the lease to B good, though it be so only by conclu- sion.' A doctrine similar in principle was asserted in this Court, in Terret i;. Taylor, 9 Cranch, 52. The distinction, then, which was urged at the bar, that an estoppel of this sort binds those claiming under the same deed, but not those claiming by a subsequent deed under the same party, is not well founded. All privies in estate by a subsequent deed are bound in the same manner as privies in blood ; and so, indeed, is the doctrine of Comyns's Digest, Estoppel B., and in Co. Lit. 352 a. We may now pass to a short l-eview of some of the American cases on this subject. Denn o. Cornell, 3 Johns. Cas. 1 74, is strongly in point. There, Lieutenant-Governor Golden, in 1775, made his will, and in it recited that he had conveyed to his son David his lands in the township of Flushing, and he then devised his other estate to his .sons and daughters, &c., &c. Afterwards, David's estate was confiscated under the act of attainder, and the defendant in ejectment claimed under that confiscation, and deduced his title from the State. No deed of the Flushing estate (the land in controversy) was proved from the father; and the heir at law sought to recover on that ground. But the Court held that the recital in the will, that the testator had conveyed the estate to David, was an estoppel of the heir to deny that fact, and bound the estate. In this case, the estoppel was set up by the tenant claiming under the State, as an estoppel running with the land. If the State or its grantee might set up the estoppel in favor of their title, then, as estoppels are reciprocal, and bind both parties, it might have been set up against the State or its grantee. It has been said at the bar, that the estate is not bound by estoppel by any recital in a deed. That may be so where the recital is in his own grants or patents, for they are deemed to be made upon suggestion of the grantee. (But see Commonwealth v. Pejepscot Proprietors, 10 Mass. 155.) But where the State claims title under the deed, or other solemn acts of third persons,, it takes it cum. onere, and subject to all the estoppels running with the title and estate, in the same way as other privies in estate. In Penrose v. Grif- fith, 4 Binn. 231, it was held that recitals in a patent of the Commonwealth were evidence against it, but not against persons claiming by a title para- mount from the Commonwealth. The Court there said, that fhe rule of law is, that a deed containing a recital of another deed is evidence of the recited deed against the grantor, and all persons claiming by title derived from him subsequently. The reason of the rule is, that the recital amounts to the con- fession of the party ; and that confession is evidence against himself, and 1 Fairtitle v. Gilbert, 2 T. R. 171 ; Co. Litt. 363, J. 34 LAW OF EVIDENCE. [PART I. ranty also estops the grantor from setting up an after-acquired title against the grantee, for it is a perpetually operating covenant ;i but he is not thus estopped by a covenant, that he is seised in fee and has good right to convey ; ^ for any seisin in fact, though by wrong, is sufficient to satisfy this covenant, its import being merely this, that he has the seisin in fact, at the time of conveyance, and thereby is qualified to transfer the estate to the grantee.^ Nor is a feme covert es- topped,' by her deed of conveyance, from claiming the land by a title subsequently acquired ; for she cannot bind herself personally by any covenant.* T-JMeither is one who has pur- chased land in his own name, for the benefit of another, which he has afterwards conveyed by deed to his employer, estopped by such deed, from claiming the land by an elder, and after-acquired title.^ Nor is the heir estopped from ques- tioning the validity of his ancestor's deed, as a fraud against those who stand in his place. But such confession can be no evidence against strangers. The same doctrine was acted upon and confirmed by the same Court, in Garwood v. Dennis, 4 Binn. 314. In that case, the Court further held, that a recital in another deed was evidence against strangers, where the deed was ancient and the possession was consistent with the deed. That case also had the peculiarity belongiilg to the present, that the posses- sion was of a middle nature, that is, it might not have been held solely in consequence of the deed, for the party had another title ; but there never was any possession against it. There was a double title, and the question was, to which the possession might be attributable. The Court thought, that a suitable foundation of the original existence and loss of the recited deed being laid in the evidence, the recital in the deed was good corrobora- tive evidence, even against strangers. And other authorities certainly war- rant this decision.'' 1 Terrett v. Taylor, 9 Cranch, 43; Jackson v. Matsdorf, 11 Johns. 97; Jackson v. Wright, 14 Johns. 183 ; MoWilliams v. Nisby, 2 Serg. & Rawl. 515 ; Somes o. Skinner, 3 Pick. 62. [See Blanchard v. Ellis, 1 Gray, 195. But such a covenant does not estop the grantor from claiming a way of ne- cessity over the land granted. Brigham v. Smith, 4 Gray, 297.] ? Allen V. Sayward, 5 Greenl. 227. 3 Marston v. Hobbs, 2 Mass. 433 ; Bearce v. Jackson, 4 Mass. 408 ; Twombly v. Henly, Id. 441 ; Chapell n. Bull, 17 Mass. 213. * Jackson v. Vanderhayden, 17 Johns. 167 ; [Lowell v. Daniels, 2 Gray, 161.] ■ 5 Jackson v. Mills, 13 Johns. 468; 4 Kent, Comm. 260, 261, note. OHAP. IV.] PRESUMPTIVE EVIDENCE. 35 an express statute.^ The grantee, or lessee, in a deed poll, is not, in general, estopped from gainsaying anything men- tioned in the deed ; for it is the deed of the grantor or lessor only"; yet if such grantee or lessee claims title under the deed, he is thereby estopped to deny the title of the grantor.^ § 25. It was an early rule of feudal policy, that the tenant should not be permitted to deny the title of the lord, from whom he had received investiture, and whose liegerhan he had become ; but as long as that relation existed, the title of the lord was conclusively presumed against the tenant, to be perfect and valid. And though the feudal reasons of the rule have long since ceased, yet other reasons of public policy have arisen in their place, thereby preserving the rule in its original vigor. A tenant, therefore, by indenture, is not per- mitted, at this day, to deny the title of his lessor, while the relation thus created subsists. It is of the essence of the contract under which he claims, that the paramount owner- ship of the lessor shall be acknowledged during the continu- ance of the lease, and that possession shall be surrendered at its expiration. He could not controvert this title, without breaking the faith which he had pledged.* But this doctrine does not apply with the same force, and to the same extent, between other parties, such as releasor and releasee, where the latter has not received possession from the former. In such cases, where the party already in possession of land, under a claim of title by deed, purchases peace and quietness of enjoyment, by the mere extinction of a hostile claim by a release, without covenants of title, he is not estopped from denying the validity of the title, which he has thus far extin- 1 Doe V. Lloyd, 8 Scott, 93. S! Co. Lit. 363, b ; Goddard's case, 4 Co. 4. But he is not always con- cluded by recitals in anterior title deeds. See supra, § 23, note. 3 Comm. Dig. Estoppel, A. 2 ; Craig. Jus. Feud. lib. 3, tit. 6, §§ 1, 2 ; Blight's Lessee v. Rochester, 7 Wheat. 535, 547. [The assignee of a lease, who enters upon and occupies the premises, is estopped in an action for the rent, brought against him by the original lessor, to deny the validity of the assignment by the original lessee to him. Blake v. Sanderson, 1 Gray, 332.] 36 LAW OF EVIDENCE. [PART I. guished.^ Neither is this rule applied in the case of a lease already expired ; provided the tenant has either quitted the possession, or has submitted to the title of a new landlord ; ''' nor is it applied to the case of a tenant, who has been ousted or evicted by a title paramount ; or who has been drawn into the 'contract by the fraud or misrepresentation of the lessor, and has, in fact, derived no benefit from the possession of the land.^ Nor is a defendant in ejectment estopped from showing that the party, under whom the lessor claims, had no title when he conveyed to the lessor, although the defend- ant himself claims from the same party, if it be by a subse- quent conveyance.* § 26. This rule, in regard to the conclusive effect of recitals in deeds, is restricted to the recital of things in particular, as being in existence at the time of the execution of the deed ; and does not extend to the mention of things in general terms. Therefore, if one be bound in a bond, conditioned to perform the covenants in a certain indenture, or to pay the money mentioned in a certain recognizance, he shall not be permitted to say that there was no such indenture or recog- nizance. But if the bond be conditioned, that the obligor shall perform all the agreements set down by A, or carry away all the marl in a certain close, he is not estopped by this general condition from saying, that no agreement was set down by A, or that" there was no marl in the close. Neither does this doctrine apply to that which is mere de- scription in the deed, and not an essential averment ; such 1 Fox V. Widgery, 4 Greenl. 214 ; Blight's Lessee v. Rochester, 7 Wheat. 535, 547; Ham v. Ham, 2 Shepl. 351. Thus, where a stranger set up a title to the premises, to ■which the lessor submitted, directing his lessee in future to pay the rent to the stranger ; it was held, that the lessor was estopped from afterwards treating the lessee as his tenant; and that the tenant, upon the lessor afterwards distraining for rent, was not stopped to allege, that the right of the latter had expired. Downs v. Cooper, 2 Ad. & El. 252, N. S. 8 England v. Slade, 4 T. K. 681 ; Balls v. Westwood-, 2 Campb. 11. 3 Hayne v. Maltby, 8 T. R. 438 ; Hearn v. Tomlin, Peake's Cas. 191. 4 Doe V. Payne, 1 Ad. & El. 538. CHAP. IV.] PRESUMPTIVE EVIDENCE. 37 as the quantity of land ; its nature, whether arable or mead- ow ; the number of tons, in a vessel chartered by the ton ; or the like ; for these are but incidental and collateral to the principal thing, and may be supposed not to have received the deliberate attention of the parties.^ 1 4 Com. Dig. Estoppel, A. 2; Telv. 227, (by Metcalf,) note (1) ; Dod- dington's case, 2 Co. 33; Skipworth v. Green, 8 Mod. 311; 1 Stra. 610, S. C. Whether the recital of the payment of the consideration-money, ia a deed of conveyance, falls within the rule, by which the party is estopped to deny it, or belongs to the exceptions, and therefore is open to opposing proof, is a point not clearly agreed. In England, the recital is regarded as con- clusive evidence of payment, binding the parties by estoppel. Shelly v. Wright, Willes, 9 ; Coss.ens v. Cossens, Id. 25 ; Eowntree v. Jacob, 2 Taunt. 141 ; Lampon v. Corke, 5 B. & Aid. 606 ; Baker v. Dewey, 1 B. & C. 704 ; Hill V. Manchester and Salford Water Works, 2 B. & Aid. 544. See also Powell v. Monson, 3 Mason,i347, 351, 356. But the American Courts have been disposed to treat the recital of the amount of the money paid, like the mention of the date of the deed, the quantity of land, the amount of ton- nage of a vessel, and other recitals of quantity and value, to which the attention of the parties is supposed to have been but slightly directed, and to which, therefore, the principle of estoppels does not apply. Hence, though the party is estopped from denying the conveyance, and that it was for a valuable consideration, yet the weight of American authority is in favor of treating the recital as only ^n'ma facie evidence of the amount paid, in an action of covenant by the grantee to recover back the consideration, or, in an action of assumpsit by the grantor, to recover the price which is yet unpaid. The principal cases are, — in Massachusetts, Wilkinson v. Scott, 1 7 Mass. 249; Clapp v. Tirrell, 20 Pick. 247; Livermore v. Aldrich, 5 Cush. 431 ; — in Maine, Schilenger v. McCann, 6 Greenl. 364 ; Tyler v. Carlton, 7 Greenl. 175 ; Emmons v. Littlefield, 1 Shepl. 233 ; Burbank v. Gould, 3 Shepl. 118; — in Vermont, Beach v. Packard, 10 Verm. 96 ; — in New Hampshire Morse v. Shattuok, 4 New Hamp. 229; Pritchard v. Brown, Id. 397; — in Connecticut, Belden v. Seymour, 8 Conn. 304; — in New York, Shepherd v. Little, 14 Johns. 210; Bowen v. Bell, 20 Johns. 388; Whitbeck v. Whit- beck, 9 Cowen, 266 ; McCrea v. Purmort, 16 Wend. 460 ; — in Pennsylvania Weigly V. Weir, 7 Serg. & Raw. 311 ; Watson v. Blaine, 12 Serg. & Raw. 131 ; Jack v. Dougherty, 3 Watts, 151 ; — in Maryland, Higdon v. Thomas 1 Har. & Gill, 139; Lingan v. Henderson, 1 Bland, Ch. 236, 249; — in Vir- ginia, Duval V. Bibb, 4 Hen. & Munf 113; Harvey v. Alexander, 1 Ran- dolph, 219; — in South Carolina, Curry v. Lyles, 2 Hill, 404; Garret v. Stuart, 1 McCord, 514; — in ^Zaiama, Mead v. Steger, 5 Porter, 498, 607; in Tennessee, Jones v. Ward, iO Yerger, 160, 166 ; — in Kentucky, Hutchin- son V. Sinclair, 7 Monroe, 291, 293 ; Gully v. Grubbs, 1 J. J. Marsh. 389. The Courts in North Carolina seem still to hold the recital of payment as VOL. I. 4 38 LAW OF EVIDENCE. [PART I. § 27. In addition to estoppels by deed, there are two classes of admissions which fall under this head of conclusive presumptions of law ; namely, solemn admissions, or admis- sions injudicio, which have been solemnly made in the course of judicial proceedings, either expressly, and as a substitute for proof of the fact, or tacitly, by pleading ; and imsolemn ad- missions, extra judicium, which have been acted upon, or have been made to influence the conduct of others, or to derive some advantage to the party, and which cannot afterwards be denied, without a breach of good faith. Of the former class are all agreements of counsel, dispensing with legal proof of facts.i So if a material averment, well pleaded, is passed over by the adverse party, without denial, whether it be by confession, or by pleading some other matter, or by demurring in law, it is thereby conclusively admitted.^ So also the payment of money into Court, under a rule for that purpose, in satisfaction of so much of the claim as the party admits to be due, is a conclusive admission of the character in which the plaintiff sues, and of his claim to the amount paid.^ The latter class comprehends, not only all those dec- larations, but also that line of conduct by which the party has induced others to act, or has acquired any advantage to himself.* Thus, a woman cohabited with, and openly recognized by a man, as his wife, is conclusively, presumed to be such, when he is sued as her husband, for goods fur nished to her, or for other civil liabilities growing out of that conclusive. Brocket v. Foscue, 1 Hawks, 64 ; Spiers v. Clay, 4 Hawks, 22 ; Jones V. Sasser, 1 Dever. & Batt. 452. And in Louisiana, it is made so by legislative enactment. Civil Code of Louisiana, Art. 2234 ; Forest v. Shores, 11 Louis. 416. See also Steele v. Worthington, 2 Ohio R. 350; [and see Cruise's Dig. (Greenl. 2d ed.) tit. 32, ch. 2, § 38, note ; ch. 20, § 52, note ; (Greenl. 2d ed. Vol. 2, pp. 322, 607.)] 1 See infra, §§169,1 70, 186, 204, 205 ; Kohn v. Marsh, 3 Rob. (Louis.) R. 48. 2 Young V. Wright, 1 Campb. 139 ; Wilson u. Turner, 1 Taunt. 398. But if a deed is admitted in pleading, there must still be proof of its identity. Johnson v. Cottingham, 1 Armst. Macartn. & Ogle, R. 11. 3 Cox t). Parry, 1 T. R. 464 ; Watkins u." Towers, 2 T. R. 275; Griffiths v. Williams, 1 T. R. 710. [See infra, § 205.] * See infra, §§ 1"84, 195, 196, 207, 208. CHAP. IV.] PRESUMPTIVE EVIDENCE. 39 relation.^ So where the sheriff returns anything as fact, done in the course of his duty in the service of a precept, it is conclusively presumed to be true against him.^ And if one party refers the other to a third person for information concerning a matter of mutual interest in controversy be- tween them, the answer given is conclusively taken as true, against the party referring.^ This subject will hereafter be more .fully considered, under its appropriate title.^ § 28. Conclusive presumptions of law are also made in respect to infants and married women. Thus, an infant under the age of seven years, is conclusively presumed to be incapable of committing any felony, for want of dis- cretion ; ^ and under fourteen, a male infant is presumed incapable of committing a rape.^ A female under the age of ten years is presumed incapable of consenting to sexual intercourse.'^ Where the husband and wife cohabited to- gether, as such, and no impotency is proved, the issue is conclusively presumed to be legitimate, though the wife is proved to have been at the same time guilty of infidelity.^' And if a wife act in company with her husband in the com- 1 Watson V. Threlkeld, 2 Esp. 637 ; Monro v. De Chemant, 4 Campb. 215 ; Robinson v. Nahon, 1 Campb. 245 ; Post, § 207. 2 Simmons v. Bradford, 15 Mass. 82. 3 Lloyd V. Willan, 1 Esp. 1 78 ; Delesline v. Greenland, 1 Bay, 458 ; Wil- liams V. Innes, 1 Camp. 364 ; Burt v. Palmer, 5 Esp. 145. 4 See infra, § 169 to 212. 5 4 Bl. Comra. 23. [See 3 Greenl. Ev. (4th ed.) p. 4.] 6 1 Hal. P. C. 630; 1 Kussell on Crimes, 801 ; Bex v. Phillips, 8 C. & P. 736 ; Rex v. Jordan, 9 C. & P. 118 ; [3 Greenl. Ev. (4th ed.) §§ 4, 215.] "^ 1 Russell on Crimes, 810. 8 Cope V. Cope, 1 Mood. & Rob, 269, 276 ; Morris v. Davies, 3 C. & P. 215 ; St. George v. St. Margaret, 1 Salk. 123 ; Banbury Peerage case, 2 Selw. N. P. (by Wheaton) 558; 1 Sim. and Stu. 153, S. C; Rex v. Luffe, 8 East, 193. But if they lived apart, though within such distance as afforded an oppor- tunity for intercourse, the presumption of legitimacy of the issue may be rebutted. Morris v. Davis, 5 C. & Fin. 163. Non-access is not presumed from the fact, that the wife lived in adultery with another ; it must be proved aliunde. Regina v. Mansfield, 1 G. & Dav. 7. [Hemmenway v. Towner, 1 Allen, 209 ; Phillips v. Allen, 2 Allen, 453 ; Doherty v. Clark, 3 Allen, 151.] 40 LAW OF EVIDENCE. [PART I. mission of a felony, other than treason or homicide, it is conclusively presumed, that she acted under his coercion, and consequently without any guilty intent.^ §.29. Where the succession to estates is concerned, the question, which of two persons is to be presumed the sur- vivor, where both perished in the same calamity, but the circumstances of their deaths are unknown, has been con- sidered in the Roman Law, and in several other codes, but in the Common Law, no rule on the subject has been laid down. By the Roman Law, if it were the case of a father and son, perishing togetTier in the same shipwreck or battle, and the son was under the age of puberty, it was presumed that he died first, but if above that age, that he was the sur- vivor ; upon the principle, that in the former case the elder is generally' the more robust, and in the latter, the younger.^ The French code has regard to the ages of fifteen and sixty ; presuming that of those under the former age, the eldest sur- vived ; and that of those above the latter age, the youngest survived. If the parties were between those ages, but of different sexes, the male is presumed to have survived ; if they were of the same sex, the presumption is in favor of the survivorship of the younger, as opening the succession in the order of nature.^ The same rules were in force in the territory of Orleans at the time of its cession to the United 1 4 Bl. Coram. 28, 29 ; Anon. 2 East, P. C. 559 ; [3 Greenl. Ev. (4th ed.) §§ 3, 4, 7.] 2 Big. lib. 34, tit. 5; De rebus dubiis, 1. 9, §§ 1, 3 ; Ibid. I. 16, 22, 23 ; Menoohius de Prajsumpt. lib. 1, Qua3st. x. n. 8, 9. This rule, however, was subject to some exceptions for the benefit of mothers, patrons, and benefici- aries. 3 Code Civil, §§ 720, 721, 722 ; Duranton, Cours de Droit Fran9ais, torn. 6, pp. 39, 42, 43,48, 67, 69; Kogron, Code Civil Expli. 411, 412; TouUier, Droit Civil Fran9ais, torn. 4, pp. 70, 72, 73. By the Mahometan Law of India, when relatives thus perish together, " it is to be presumed, that they all died at the same moment ; and the property of each shall pass to his liv- ing heirs, without any portion of it vesting in his companions in misfortune." See BaiUie's Moohummudan Law of Inheritance, 1 72. Such also was the rule of the ancient Danish Law. " Filius in communione cum patre et matre denatus, pro non nato habetur.'' Ancher, Lex Cimbrica, lib. 1, c. 9, p. 21. CHAP. IV.] PKESUMPTIVB EVIDENCE. 41 States, and have since been incorporated into the code of Louisiana.^ § 30. This question first arose, in Common-Law Courts, upon a motion for a mandamus, in the case of General Stan- wix, who perished, together with his second wife, and his daughter by a former marriage, on the passage from Dublin to England; the vessel in which they sailed having never been heard from. Hereupon his nephew applied for letters of administration, as next of kin ; which was resisted by the maternal uncle of the daughter, who claimed the effects upon the presumption of the Roman Law, that she was the sur- vivor. But this point was not decided, the Court decreeing for the nephew upon another ground, namely, that the ques- tion could properly be raised only upon the statute of distri- butions, and not upon an application for administration by one clearly entitled to administer by consanguinity.? The point was afterwards raised in Chancery, where the case was, that the father had bequeathed legacies to such of his children as should be living at the time of his death ; and he having perished, together with one of the legatees, by the foundering of a vessel on a voyage from India to England, the question was, whether the legacy was lapsed by the death of the son in the lifetime of the father. The Master of the RoUs refused to decide the question by presumption, and directed an issue, to try the fact by a Jury.^ But the Pre- rogative Courts adopt the presumption, that both perished together, and that therefore neither could transmit rights to the other.* In the absence of all evidence of the particular 1 Civil Code of Louisiana, art. 930-933 ; Digest of the Civil Laws of the Territory of Orleans, art. 60-63. 2 Rex V. Dr. Hay, 1 W. Bl. 640. The matter was afterwards compro- mised, upon the recommendation of Lord Mansfield, who said he knew of no legal principle on which he could decide it. See 2 Phillim. 268, in note ; Fearne's Posth. Works, 38. 3 Mason v. Mason, 1 Meriv. 308. * Wright V. Netherwood, 2 Salk. 593, note (a) by Evans ; more fully reported under the name of Wright v. Sarmuda, 2 Phillim. 266-277, note 42 LAW OF EVIDENCE. [PART I. circumstances of the calamity, probsibly this rule will be found the safest and most convenient;^ but if. any circum- stances of the death of either party can be proved, there can be no inconvenience in submitting the question to a Jury, to whose province it peculiarly belongs. § 81. Conclusive presumptions of law are not unknown to the law of nations. Thus, if a neutral vessel be found car- rying despatches of the enemy between different parts of the enemy's dominions, their effect is presumed to be hostUe.^ The spoliation of papers, by the captured party, has been regarded, in all the States of Continental Europe, as conclu- sive proof of guUt ; but in England and America, it is open to explanation, unless the cause labors under heavy suspi- cions, or there is a vehement presumption of bad faith or gross prevarication.^ (c) ; Taylor v. Diplock, 2 Phillim. 261, 278, 280 ; Selwyn's ease, 3 Hagg. Eccl. R. 748. In the goods of Murray, 1 Curt. 596 ; Satterthwaite v. Pow- ell, 1 Curt. 705. See also 2 Kent's Comm. 435, 436, (4th ed.) note (b). la the brief note of Colvin v. H. M. Procurator-Gen., 1 Hagg. Eccl. R. 92, where the husband, wife, and infant child (if any) perished together, the Court seem to have held, that the prima facie presumption of law was that the husband survived. But the point was not much moved. It was also raised, but not disposed of, in Mcehring v. Mitchell, 1 Barb. Ch. R. 264. The subject of presumed survivorship is fully treated by Mr. Burge, in his Commentaiies on Colonial and Foreign Laws, Vol. 4, p. 11-29. In Chan- cery it has recently been held, that a pi-esumption of priority of death might be raised from the comparative age, health, and strength of the parties ; and, therefore, where two brothers perished by shipwreck, the circumstances being wholly unknown, the elder being the master, and the younger the second mate of the ship, it was pi-esumed that the latter died first. Sillick V. Booth, 1 Y. & C. New Cas. 117. [In Underwood v. Wing, 31 Eng. Law & Eq. 2!J3, where a husband, wife, and children were swept from the deck of a vessel by the same wave and went down together, it was held, that, in the absence of evidence, the Court would not presume that the husband sur- vived the witij.] 1 It was so held in Coye v. Leach, 8 Met. 371. And see Mcehring v. Mitchell, 1 Barb. Ch. R. 264. 2 The Atalanta, 6 Rob. Adm. 440. 3 The Pizarro, 2 Wheat. 227, 241, 242, note (e) | The Hunter, 1 Dods. Adm. 480, 486. GHAP. IV.] PRESUMPTIVE! EVIDBNOB. 43 § 32. In these eases of conclusive presumption, the rule of law merely attaches itself to the circumstances, when proved ; it is not deduced from them. It is not a rule of inference from testimony ; but a rule of protection, as expedient, and for the general good. It does not, for example, assume that all landlords have good titles ; but that it will be a public and general inconvenience to suffer tenants to dispute them. Neither does it assume, that all averments and recitals in deeds and records are true ; but, that it will be mischievous, if parties are permitted to deny them. It does not assume that all simple contract debts, of six years' standing, are paid, nor that every man, quietly occupying land twenty years as his own, has a valid title by grant; but it deems it expedient that claims, opposed by such evidence as the lapse of those periods affords, should not be countenanced, and that society is more benefited by a refusal to entertain such claims, than by suffering them to be made good by proof. In fine, it does not assume the impossibility of things, which are possible ; - on the contrary, it is founded, not only on the possibility of their existence, but on their occasional occurrence ; and it is against the mischiefs of their occurrence, that it interposes its protecting prohibition.'- § 33. The SECOND class of presumptions of law, answer- ing to the proBSumptiones juris of the Roman Law, which may always be overcome by opposing proof,^ consists of those termed disputable presumptions. These, as well as the former, are the result of the general experience of a connec- tion between certain facts, or things, the one being usually found to be the companion, or the effect of the other. The connection, however, in this class, is not so intimate, nor so nearly universal, as to render it expedient, that it should be absolutely arid imperatively presumed to exist in every case, all evidence to the contrary being rejected ; but yet it is so general, and so nearly universal, that the law itself, without the aid of a Jury, infers the one .fact from the proved exist- 1 See 6 Law Mag, 348, 355, 356. 8 Heinnec. ad. Pand. Pars iv. § 124. 44 LAW OF EVIDENCE. [PART I. ence of the other, in the absence of all opposing, evidence. In this mode, the law defines the nature and amount of the evidence, which it deems sufficient to establish a primd facie case, and to throw the burden of proof on the other party ; and if no opposing evidence is offered, the Jury are bound to find in favor of the presumption. A contrary verdict would be liable to be set aside, as being against evidence. § 34. The rules in this class of presumptions, as in the former, have been adopted by common consent, from motives of public policy, and for the promotion of the general good ; yet not, as in the former class, forbidding all further evi- dence ; but only excusing or dispensing with it, till some proof is given on the other side to rebut the presumption thus raised. Thus, as men do not generally violate the penal code, the law presumes every man innocent ; but some men do transgress it, and therefore evidence is received to repel this presumption. This legal presumption of innocence is to be regarded by the Jury, in every case, as matter of evidence, to the benefit of which the party is entitled. And where a criminal charge is to be proved by circumstantial evidence, the proof ought to be not only consistent with the prisoner's guilt, but inconsistent with any other rational con- clusion.^ On the other hand, as men seldom do unlawful acts with innocent intentions, the law presumes every act, in itself unlawful, to have been criminally intended, until the contrary appears. Thus, on a charge of murder, malice is presumed from the fact of killing, unaccompanied with circumstances of extenuation ; and the burden of disproving the malice is thrown upon the accused.^ The same pre- 1 Hodge's case, 2 Lewin, Cr. Cas. 227, per Alderson, B. 2 Poster's Crown Law, 255 ; Eex v. Farrington, Kuss. & Ry. 207. This point was reexamined and discussed, with great ability and research, in York's case, 9 Met. 93, in which a majority of the learned Judges affirmed the rule as stated in the text. Wilde, J., however, strongly dissented; maintaining, with great force of reason, that the rule was founded in a state of society no longer existing ; that it was inconsistent with settled principles of criminal law ; and that it was not supported by the weight of authority. CHAP. IV.] PRESUMPTIVE EVIDENCE. . 45 sumption arises in civil actions, where the act complained of was unlawful.' So, also, as men generally own the personal He was of opinion that the following conclusions were mfiintained on sound ' principles of law and manifest justice : 1. That when the facts and circum- stances accompanying a homicide are given in evidence, the question whether the crime is murder or manslaughter is to be decided upon the evidence, and not upon any presumption from the mere act of killing. 2. That if there be any such presumption, it is a presumption of fact ; and if the evidence leads to a reasonable doubt whether the presumption be well founded, that doubt will avail in favor of the prisoner. 3. That the burden of proof, in every crim- inal case, is on the government, to prove all the material allegations in the indictment ; and if, on the whole evidence, the Jury have a reasonable doubt whether the defendant is guilty of the crime charged, they are bound to ac- quit him. [In Commonwealth v. Hawkins, 3 Gray, 465, Chief Justice Shaw said, that the doctrine of York's case is, that where the killing is proved to have been committed by the defendant, and nothing furlher is shown, the presumption of law is that it was malicious and an act of murder ; and that it was inapplicable to a case where the circumstances attending the homicide were fully shown by the evidence ; that in such a case, the homicide being conceded and no excuse or justification being shown, it was either murder or manslaughter ; and that the Jury , upon all the circumstances must be sat- isfied beyond a reasonable doubt that it was done with malice before they could find the defendant guilty of murder. This would appear to qualify materially the rule in York's case as it has heretofore been understood. See infra, § 81 J.] ' In Bromage u. Proser, 4 B. & C. 247, 255, 256, which was an action for words spoken of the plaintitFs, in their business and trade of bankers, the law of implied or legal malice, as distinguished from malice in fact, was clearly expounded by Mr. Justice Bayley, in the following terms : " Malice, in the common acceptation, means ill-will against a person, but in its legal sense, it means a wrongful act, done intehtio.nally without just cause or ex- cuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally and without just cause or excuse. If I maim cattle, without knowing whose they are, if I poison a fishery, with- out knowing the owner, I do it of malice, because it is a wrongful act, and done intentionally. If I am arraigned of felony, and wilfully stand mute, I am said to do it of malice, because it is intentional and without just cause or excuse. Russell on Crimes, 614, n. 1. And if I traduce a man, whether I know him or not, and whether I intend to 'do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not, and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces ? And I apprehend the law recognizes the distinction between these two descriptions of malice, 46 LAW OF EVIDENCE. [PAKT I. property they possess, proof of possession is presumptive proof of ownership} But possession of the fruits of crime recently after its commission, is primd facie evidence oi guilty possession; and if unexplained either by direct evidence, or by the attending circumstances, or by the character and habits of life of the possessor, or otherwise, it is taken as conclusive.^ This rule of presumption is not confined to the case of theft, but is applied to all cases of crime, even malice in fact, and malice in law, in actions of slander. In an ordinary ac- tion for words, it is sufficient to charge, that the defendant spoke them falsely ; it is not necessary to state that they were spoken maliciously. This is so laid down in Styles, 392, and was adjudged upon error in Mercer v. Sparks, Owen, 51 ; Noy, 35. The objection there was, that, the words were not charged to have been spoken maliciously, but the Court answered that the words were themselves malicious and slanderous, and therefore the judgment was affirmed. But in actions for such slander as is prima facie excusable on account of the cause of speaking or writing it, as in the case of servants' characters, confidential advice, or communication to persons who ask it, or have a right to expect it, malice in fact must be proved by the plaintiff; and in Edmondson v. Stevenson, Bull. N. P. 8, Lord Mansfield takes the distinc- tion between these and ordinary actions of slander." [In Commonwealth o. Walden, 3 Cush. 559, 561, which was an indict- ment under a statute, for malicious mischief in wilfully and maliciously injuring a certain animal, by shooting, the Court below ruled that "ifla- liciously " meant " the wilfully doing of any act prohibited by law, and for which the defendant had no lawful excuse." The Supreme Court held the instructions erroneous, and decided that to make the act " maliciously " done, .the Jury must be satisfied that it was done either out of a spirit of wanton cruelty or wicked revenge. See 4 Bl. Comm. 244 ; Jacob's Law Die. by Tomlin, tit. " Mischief, Malicious."] ' [Armory f. Delamirie, 1 Stra. 505 ; Magee v. Scott, 9 Cush. 150 ; Fish V. Skut, 21 Barb. 333 ; Millay v. Butts, 35 Maine, 139 ; Linscott ■/. Trask, lb. 150.] 8 Kex V. , 2 C. & P. 359 ; Regina v. Coote, 1 Armst. Macartn. & Ogle, R. 337; The State v. Adams, 1 Hayw. 463 ; Wills on Circumstantial Evidence, '67. Where the things stolen are such as do not pass from hand to hand, (e. g. the ends of unfinished woollen clothes,) their being found in the prisoner's possession, two .months after- they were stolen, is sufficient to call for an explanation from him how he came by them, and to be consid- ered by the Jury. Rex v. Partridge, 7 C. & P. 551. Furtum prsesumitur commissum ab illo, penes quem res furata inventa fuerit, adeo ut si non docuerit a quo rem habuerit, juste, ex ilia inventione, poterit subjici tormen- tis. Maseard. De Probat. Vol. 2, Concl. 834 ; Menoch. De Prsesumpt. Liv. 6, Praesumpt. 31. [Seeposi, Vol. 3, §§ 31, 32, 33.] CHAP. IV.] PRESUMPTIVE EVIDE^rCE. 47 the highest and most penal. Thus, upon an indictment for arson, proof that property which was in the house at the time it was burnt, was soon afterwards found in the posses- sion of the prisoner, was held to raise a probable presump- tion, that he was present, and concerned in the offence.^ The like presumption is raised in the case of murder, accom- panied by robbery ; ^ and in the case of the possession of an unusual quantity of counterfeit money.^ § 35. This presumption of innocence is so strong, that even where the guilt can be established only by proving a negative, that negative must, in most cases, be proved by the party alleging the guilt ; though the general rule of law devolves the burden of proof on the party holding the affirm- ative; Thus, where the plaintiff complained that the defend- ants, who had chartered his ship, had put on board an article highly inflammable and dangerous, without giving notice of its nature to the master, or others in charge of the ship, whereby the vessel was burnt ; he was held bound to prove this negative averment.* In some cases, the presumption of innocence has been deemed sufficiently strong to overthrow the presumption of life. Thus, where a woman, twelve, months after her husband was last heard of, married a second husband, by whom she had children ; it was held, that the Sessions, in a question upon their settlement, rightly presumed that the first husband was dead at the time of the second marriage.^ 1 Rickman's case, 2 East, P. C. 1035. 2 Wills on Circumst. Evid. 72. 3 Rex V. Fuller et al., Russ. & Ry. 308. 4 Williams v. E. Ind. Co. 3 East, 192 ; Bull. N. P. 298. So, of allega- tions that a party had not taken the sacrament ; Rex v. Hawkins, 10 East, 211 ; had not complied -with the act of uniformity, &c. ; Powell v. Millburn, 3 Wills. 355, 366 ; that goods were not legally imported ; Sissons b. Dixon, 5 B. & C. 758; that a theatre was not duly licensed ; Rodwell v. Redge, 1 C. & P. 220. 5 Eex V. Twyning, 2 B. & Aid. 385. But in another case, where, in a question upon the derivative settlement of the second wife, it was proved that a letter had been written from the first wife from Van Diemen's Lan , 48 LAW OF EVIDENCE. [PART I. § 36. An exception to this rule, respecting the presump- tion of innocence, is admitted in the case of a libel. For where a libel is sold in a bookseller's shop, by his servant, in the ordinary course of his employment, this is evidence of a guilty publication by the master ; though, in general, an • authority to commit a breaah of the law is not to be pre- sumed. This exception is founded upon public policy, lest irresponsible persons should be put forward, and the prin- * cipal and real offender should escape. Whether such evi- dence is conclusive against the master, or not, the books are not perfectly agreed ; but it seems conceded, that, the want of privity in fact by the master is not sufficient to excuse him ; and that the presumption of his guilt is so strong as to fall but little short of conclusive evidence.^ Proof, that the libel was sold in violation of express orders from the master, would clearly take the case out of this exception, by show- ing that it was not sold in the ordinary course of the ser- vant's duty. The same law is applied to the pubhshers of newspapers.^ § 37. The presumption of innocence rriay be overthrown, and a presumption of guilt be raised by the misconduct of the party, in suppressing or destroying, evidence which he ought to produce, or to which the other party is entitled. Thus, the spoliation of papers, material to show the neutral character of a vessel, furnishes a strong presumption, in odium spolia- toris, against the ship's neutrality.^ A similar presumption is raised against a party who has obtained possession of papers from a witness, after the service of subpcena duces te- bearing date only twent3'-five days prior to the second marriage, it was held, that the Sessions did right in presuming that the first wife was living at the time of the second marriage. Rex v. Harborne, 2 Ad. & El. 540. 1 Rex V. Gutch, 1 M. & M. 433 ; Harding v. Greening, 8 Taunt. 42; Rex V. Almon, 5 Burr. 2686 ; Rex v. Walter, 3 Esp. 21 ; 1 Russ. on Crimes, 341 (3d ed. p. 251) ; Ph. & Am. on Evid. 466 ; 1 Phil. Evid. 446. 3 1 Russ. on Crimes, 341 ; Rex v. Nutt, Bull. N. P. 6 (3d ed. p. 251) ; Southwick V. Stevens, 10 Johns. 443. 3 The Hunter, 1 Dods. 480 ; The PIzarro, 2 Wheat. 227 ; 1 Kent, Comm. 157 ; Supra, § 31. CHAP. IV.] PRESUMPTIVE EVIDENCE. 49 cum upon the latter for their production, which is withheld.^ The general rule is, Omnia prcBSvtmwntur contra spoliatorem? His conduct is attributed to his supposed knowledge that the truth would have operated against him. Thus, if some of a series of documents of title are suppressed by the party ad- mitting them to be in his possession, this is evidence that the documents withheld afford inferences unfavorable to the title of that party.^ Thus, also, where the finder of a lost jewel would not produce it, it was presumed against him that it was of the highest value of its kind.* But if the defendant has been guilty of no fraud, or improper conduct, and the only evidence against him is of the delivery to him of the plaintiff's goods, of unknown quality, the presumption is, that they were goods of the cheapest quality.^ The fabri- cation of evidence, however, does not of itself furnish any presumption of law against the innocence of the party, but is a matter to be dealt with by the Jury. Innocent persons, under the influence of terror from the danger of their situa- tion, have been sometimes led to the simulation of exculpa- tory facts ; of which several instances are stated in the 1 Leeds v. Cook, 4 Bsp. 256 ; Rector v. Rector, 3 Gilm. 105. But a re- fusal to produce books and papers under a notice, though it lays a tbunda- tion for the introduction of secondary evidence of their contents, has been held to afford no evidence of the fact sought to be proved by them ; such, for example, as the existence of a deed of conveyance from one mercantile partner to another. Hanson v. Eustace, 2 Howard, S. C. Rep. 653. [The omission of a party to call a -witness who might equally have been called by the other party, is no ground for a presumption, that the testimony of the witness would have been unfavorable. Scovill v. Baldwin, 27 Conn. 316.] 2 2 Pofh. Obi. (by Evans,) 292 ; Dalston v. Coatsworth, 1 P. Wms. 731 ; Cowper V. Earl Cowper, 2 P. Wms. 720, 748-752 ; Rex v. Arundel, Hob. 109, explained in 2 P. Wms. 748, 749 ; D. of Newcastle v. Kinderly, 8 Ves. 363, 375 ; Annesley v. E. of Anglesea, 17 Howell's St. Tr. 1430. See also Sir Samuel Romilly's argument in Lord Melville's case, 29 Howell's St. Tr. 1194, 1195 ; Anon. 1 Ld. Raym. 731 ; Broom's Legal Maxims, p. 425. In Barker u. Ray, 2 Russ. 73, the Lord Chancellor thought .that this rule had in some cases been pressed a little too far. See eJso Harwood v. Goodriirht, Cowp. 86. [See post, Vol. 3, § 34.] 3 James v. Bion, 2 Sim. & Stu. 600. * Armory v. Delamirie, 1 Stra. 505. 5 Clunnes v. Pezzey, 1 Campb. 8. vol.. I. 5 50 LAW OF BVIDENCB. fPART I. books.'^ Neither has the mere non-production of books, upon notice, any other legal effect, than to admit the other party to prove their contents by parol, unless under special circum- stances.^ § 38. Other presumptions of this class are founded upon the experience of human conduct in the cowrse of trade ; men being usually vigilant in guarding their property, and prompt in asserting their rights, and orderly in conducting their aifairs, and diligent in claiming and collecting their dues. Thus, where a bill of exchange, or an order for the payment of money or delivery of goods, is found in the hands of the drawee, or a promissory note is in the possession of the maker, a legal presumption is raised that he has paid the money due upon it, and delivered the goods ordered.^ A bank-note will be presumed to have been signed before it Was issued, though the signature be torn off.* So, if a deed is found in the hands of the grantee, having on its face the evidence of its regular execution, it will be presumed to have been delivered by the grantor.^ So, a receipt for the last year's or quarter's rent is primd facie evidence of the pay- 1 See 3 Inst. 104 ; Wills on Circumst. Evid. 113. 2 Cooper V. Gibbons, 3 Campb. 363. 3 Gibbon v. Featherstonhaugh, 1 Stark. R. 225 ; Egg w. Barnett, 3 Esp. 196; Garlock v. Geortner, 7 Wend. 198; Alvord v. Baker, 9 Wend. 323; Weidner v. Schweigart, 9 Serg. & K. 885 ; Shepherd v. Currie, 1 Stark. R. 454; Brembridge v. Osborne, Id. 374. The production, by the plaintiflf, of an I O U, signed by the defendant, is piima facie evidence that it was given by him to the plaintiflf. Curtis v. Richards, 1 M. & G. 46. And where there are two persons, father and son, of the same name, it is presumed that the father is intended, until the contrary appears. See Stebbing v. Spicer, 8 M. G. & S. 827, where the cases to this point are collected. See also The State V. Vittum, 9 N. Hamp. 519; Kincaid v. Howe, 10 Mass. 205. [The posses- sion of a bond by an obligor who is a surety therein, raises a legal presump- tion that the bond has been paid. Carroll v. Bowie, 7 Gill, 34.] 4 Murdock v. Union Bank of Louis. 2 Rob. (Louis.) R. 112; Smith v. Smith, 15 N. R. 55. 5 Ward V. Lewis, 4' Pick. 518. [There is a legal presumption, that the property in the goods is in the consignee named in the bill of lading, so that he may sue in his own name to recover damages for non-delivery thereof, &c. Lawrence v. Minturn, 17 How. U. S. 100.] CHAP. IV.] PRESUMPTIVE EVIDENCE. 51 merit of all the rent previously accrued.^ But the mere de- livery of money by one to another, or of a bank check, or the transfer of stock, unexplained, is presumptive evidence of the payment of an antecedent debt, and not of a loan.^ The same presumption arises upon the payment of an order or draft for money, namely, that it was drawn upon funds of the drawer in the hands of the drawee. But in the case of an order for the delivery of goods it is otherwise, they being presumed to have been sold by the drawee to the drawer.^ Thus, also, where the proprietors of adjoining parcels of land agree upon a line of division, it is presumed to be a recogni- tion of the true original line between their lots.* § 38 a. Of a similar character is the presumption in favor of the due execution of solemn instruments. Thus, if the subscribing witnesses to a will are dead, or if, being present, they are forgetful of all the facts, or of any fact material to its due execution, the law will in such cases supply the defect of proof, by presuming that the requisites of the statute were duly observed.^ The same principle, in effect, seems to have been applied in the case of deeds.^ § 39. On the same general principle, where a debt due by specialty has been unclaimed, and without recognition, for 1 1 Gilb. Evid. (by Lofft,) 309 ; Brewer v. Knapp, 1 Pick. 337. [See also Hodgdon v. Wight, 36 Maine, 326.] a Welch V. Seaborn,.! Stark. R. 474 ; Patton v. Ash, 7 Serg. & R. 116, 125 ; Breton w. Cope, Peake's Cas. 30 ; Lloyd v. Sandiland, Gow, R. 13, 16 ; Gary v. Gerrish, 4 Esp. 9 ; Aubert v. Wash, 4 Taunt. 293 ; Boswell v. Smith, 6 C. & P. 60. Where the plaintiff, in proving his charge of money lent, proved the delivery of a bank-note to the defendant, the amount or value of which did not appear, the Jury were rightly directed to presume that it was a note of the smallest denomination in circulation ; the burden of prov- ing it greater being on the plaintiff. Lawton v. Sweeny, 8 Jur. 964. a Alvord V. Baker, 9 Wend. 323, 324. 4 Sparhawk v. BuUard, 1 Met. 95. 5 Burgqyne v. Showier, 1 Roberts, Eccl. R. 10 ; In re Leach, 12 Jur. 381. 8 Burling v. Paterson, 9 C. &P. 570; Dewey v. Dewey, 1 Met. 349 ; Quimby v. Buzzell, 4 Shepl. 470 ; New Haven Co. Bank v. Mitchell, 15 Conn. 2.06 ; Infra, § 372, n. 52 LAW OF BVIDBNCB. [PART I. twenty years, in the absence of any explanatory evidence, it is presumed to have been paid. The Jury may infer the fact of payment from the circumstances of the case, within that period ; but the presumption of law does not attach, till the twenty years are expired.^ This rule, with its limitation of twenty years, was first introduced into the Courts of Law by Sir Matthew Hale, and has since been generally recognized, both in the Courts of Law and of Equity.^ It is applied not only to bonds for the payment of money, but to mortgages, judgments, warrants to confess judgment, decrees, statutes, recognizances, and other matters of record, when not affected by statutes ; but with respect to all other claims not under seal nor of record, and not otherwise limited, whether for the payment of money, or the performance of specific duties, the general analogies are followed, as to the application of the lapse of time, which prevail on kindred subjects.^ But in all these cases, the presumption of payment may be repelled by any evidence of the situation of the parties, or other circum- stance tending to satisfy the Jury, that the debt is still due.* ) Oswald V. Leigh, 1 T. R. 270 ; Hillary v. Wellar, 12 Ves. 264 ; Colsell V. Budd, 1 Campb. 27 ; Boltz u. Ballman, 1 Yeates, 584 ; Cottle v. Payne, 3 Day, 289. In some cases, the presumption of payment has been made by the Court, after eighteen years ; Rex v. Stephens, 1 Burr. 434 ; Clark «. Hopkins, 7 Johns. 556 ; but these seem to be exceptions to the general rule. 9 Mathews on Presumpt. Evid. 379 ; Haworth v. Bostock, 4 Y. & C. 1 ; Grenfell v. Girdlestone, 2 Y. & C. 662. 3 This presumption of the Common Law is now made absolute in the case of debts due by specialty, by Stat. 3 & W. 4, c. 42, § 3. See also Stat. 3 & 4 W. 4, c. 27, and 7 W. 4, & 1 V. c. 28. It is also adopted in New York, by Rev. Stat. Part 3, ch. 4, tit. 2, art. 5, and is repellable only by written acknowledgment, made within twenty years, or proof of part payment within that period. In Maryland, the lapse of twelve years is made a con- clusive presumption of payment, in all cases of bonds, judgments, recog- nizances, and other specialties, by Stat. 1715, ch. 23, § 6 ; 1 Dorsey's Laws of Maryl. p. 11 ; Carroll v. Waring, 3 Gill & Johns. 491. A like provision exists in Massachusetts, as to judgments and decrees, after the lapse of twenty years. Rev. Stat. ch. 120, § 24. * A more extended consideration of this subject being foreigu_from the plan of this work, the reader is referred to the treatise of Mr. Mathews on Presumptive Evidence, ch. 19, 20 ; and to Best on Presumptions, Part I. ch. ii. iii. [Grantham v. Canaan, 38 N. H. 268.] CHAP. IT.} PRESUMPTIVE EVIDENCE. 53 § 40. Under this head of presumptions from the course of trade, may be ranked the presumptions frequently made from the regular course of business in a public office. Thus post- marks on letters are prima facie evidence, that the letters were in the post-office at the time and place therein speci- fied.^ If a letter is sent by the post, it is presumed, from the known course in that departtnent of the public service, that it reached its destination at the regular time, and was received by the person to whom it was addressed, if living at the place, and usually receiving letters there.^ So, where a letter was put into a box in an attorney's office, and the course of business was, that a bell-man of the post-office invariably called to take the letters from the box ; this was held suffi- cient to presume that it reached its destination.^ So, the time of clearance of a vessel, sailing under a license, was presumed to have been indorsed upon the license, which was lost, upon its being shown, that without such indorsement, the custom-house would not have permitted the goods to be entered.* So, on proof that goods, which cannot be exported without license, were entered at the custom-house for expor- tation, it will be presumed, that there was a license to export them.' The return of a sheriff, also, which is conclusively presumed to be true, between third persons, is taken primd facie as true, even in his own favor ; and the burden of prov- ii)g it false, in an action against him for a false return, i^ devolved on the plaintiff, notwithstanding it is a negativet allegation.^ In fine, it is presumed, until the contrary is proved, that every man obeys the mandates of the law, and 1 Fletcher v. Braddyl, 3 Stark. R. 64 ; Rex v. Johnson, 7 East, 65 ; Rex V. Watson, 1 Campb. 215 ; Rex v. Plumer, Rus. & Ry. 264 ; New Haven Co. Bank v. Mitchell, 15 Conn. 206. 2 Saunderson v. Judge, 2 H. Bl. 509 ; Bussard v. Levering, 6 Wheat. 102; Lindenberger v. Beal, lb. 104 ; Bayley on Bills, (by Phillips & Sewall,) 275, 276, 277 ; Walter v. Haynes, Ry. & M. 149 ; Warren v. Warren, 1 Cr. M. & R. 250. [See^osi, Vol. 2, (7th ed.) § 188 and note ; Loud v. Merrill, 45 Maine, 516; Contra, see Freeman v. Morey, lb. 50.] 3 Sfcilbeck v. Garbett, 9 Jur. 339 ; 7 Ad. & El. N. S. 846, S. C. 1 Butler V. AUnut, 1 Stark. R. 222. 5 Van Omeron v. Dowick, 2 Campb. 44. 6 Clark V. Lyman, 10 Pick. 47 ; Boynton v. Willard, Id. 169. 5* 54 LAW OF EVIDENCE. [PART I. performs all his official and social duties.' The like pre- sumption is also drawn from the usual course of men's pri- vate offices and business, vsrhere the primary evidence of the fact is wanting.^ § 41. Other presumptions are founded on the experienced continuance or permanency, of longer or shorter duration, in human affairs. When, therefore, the existence of a person, a personal relation, or a state of things, is once established by proof, the law presumes that the person, relation, or state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised, from the nature of the subject in question. Thus, where the issue is upon the life or death of a person, once shown to have been living, the burden of proof lies upon the party who asserts the death.^ But after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party.* This period was inserted, upon great deliberation. 1 Ld. Halifax's case, Bull. N. P. [298] ; Bank United States v. Dandridge, 12 Wheat. 69, 70 ; Williams v. E. Ind. Co. 3 East, 192; Hartwell v. Root, 19 Johns. 345 ; The Mary Stewart, 2 W. Rob. Adm. R. 244. Hence, chil- dren born during the separation of husband and wife, by a decree of divorce a mensa et thoro, are, prima facie, illegitimate. St. George v. St. Margaret, 1 Salk. 123. 2 Doe V. Turford, 3 B. & Ad. 890, 89.5 ; Champneys v. Peck, 1 Stark. R. 404; Pritt v. Fairclough, 3 Campb. 305; Dana v. Kemble, 19 Pick. 112. 3 Throgmorton v. Walton, 2 Roll. R. 461 ; Wilson v. Hodges, 2 East, 313 ; Battin v. Bigelow, 1 Pet. C. C. R. 452 ; Gilleland v. Martin, 3 McLean, 490. Vivere etiam usque ad centum annos quilibet prsesumitur, nisi probetur mor- tuus. Corpus Juris Glossatum, tom. 2, p. 718, note (q) ; Mascard. De Prob. Vol. 1, Concl. 103, n. 5. * Hopewell v. De Pinna, 2 Campb. 113 ; Loring v. Steineman, 1 Met. 204 ; Cofer V. Thermond, 1 Kelly, 538. This presumption of death, from seven years' absence, was questioned by the Vice-Chancellor of England, who said it was " daily becoming more and more untenable ; " in Watson v. Eng- land, 14 Sim. 28 ; and again in Dowley v. Wiqfield, Id. 277. But the cor- rectness of his remark is doubted in 5 Law Mag. N. S. -338, 339 ; and the rule was subsequently adhered to by the Lord Chancellor in Cuthbert v. Furrier, 2 Phill. 199, in regard to the capital of a fund, the income of which was bequeathed to an absent legatee; though beseems to have somewhat CHAP. IV.] PRESUMPTIVE EVIDENCE. 55 in the statute of bigamy,^ and the statute concerning leases for lives,^ and has since been adopted, from analogy in other cases.^ But where the presumption of life conflicts with that of innocence, the latter is generally allowed to prevail.* ■ Upon an issue of the life or death of a party, as we have seen in the like case of the presumed payment of a debt, the Jury may find the fact of death from the lapse of a shorter period than seven years, if other circumstances concur ; as, if the party sailed on a voyage which should long since have been accomplished, and the vessel has not been heard from.^ relaxed the rule in regard to the aceumulated dividends. See 7 Law Rep. 201. The presumption in such cases is, that the person is dead ; but not that he died at the end of the seven years, nor at any other particular time. Doe V. Nepean, 5 B. & Ad. 86 ; 2 M. & W. 894. The time of the death is to be inferred by the Jury, from the circumstances. Rust v. Baker, 8 Sim. 443 ; Smith V. Knovplton, 11 N. Hamp. 191 ; Doe v. Flanagan, 1 Kelly, 543 ; Burr «. Sim, 4 Whart. 150 ; Bradley v. Bradley, Id. 173 ; [Stevens u. McNamara, 36 Maine, 176 ; Whiteside's Appeal, 23 Penn. St. R. 114 ; Spencer v. Roper, 13 Ired. 333 ; Primm v. Stewart, 7 Texas, 178. See also Creed, In re, 19 Eng. Law & Eq. 119 ; Merritt v. Thompson, 1 Hilton, 550.] 1 1 Jac. 1, c. 11. 2 19 Car. 2, e. 6. 3 Doe V. Jesson, 6 East, 85 ; Doe v. Deakin, 4 B. & Aid. 433 ; King v. Paddock, 18 Johns. 141. It is not necessary that the party be proved to be absent from the United States ; it is sufficient, if it appears that he has been absent for seven years, from the particular State of his residence, without having been heard from. Newman v. Jenkins, 10 Pick.-515 ; Innis v. Camp- bell, 1 Rawle, 373 ; Spurr v. Trimble, 1 A. K. Marsh. 278 ; Wambough v. Shenk, 1 Penningt. 167 ; Woods v. Woods, 2 Bay, 476 ; 1 N. Y. Rev. Stat. 749, § 6. 4 Rex V. Twyning, 2 B. & Aid. 385 ; Supra, § 35. But there is no abso- lute presumption of law as to the continuance of life ; nor any absolute pre- sumption against a person's doing an act because the doing of it would be an offence against the law. In every case the circumstances must be consid- ered. Lapsley v. Otrierson, 1 H. L. Ca. 498. 5 In the case of a missing ship, bound from Manilla to London, on which the underwriters had voluntarily paid the amount insured, the death of those on board was presumed by the Prerogative Court, after an absence of only two years, and administration was gi-anted accordingly. In re Hutton 1 Curt. 595. See also Sillick v. Booth, 1 Y. & Col. N. C. 117. If the person was unmarried when he went abroad and was last heard of, the presumption of his death carries with it the presumption that he died without issue. Rowe V. Hasland, 1 W. Bl. 404 ; Doe v. Griffin, 15 East, 293. 56 LAW OF BVIDBNCB. [PART I. But the presumption of the Common Law, independent of the finding of the Jury, does not attach to the mere lapse of time, short of seven years,-"^ unless letters of administration have been granted on his estate within that period, which, in such case, are conclusive proof of his death.^ § 42. On the same ground, a pwrtnership, or other similar relation, once shown to exist, is presumed to continue, untU it is proved to have been dissolved.^ And a seisin, once proved or admitted, is presumed to continue, until a disseisin is proved.* The opinions, also, of individuals, once enter- tained and expressed, and the state of mind, once proved to exist, are presumed to remain unchanged, until the contrary appears. Thus, all the members of a Christian community being presumed to entertain the common faith, no man is supposed to disbelieve the existence and moral government of God, until it is shown from his own declarations. In like manner, every man is presumed to be of sane mind, un- til the contrary is shown ; but if derangement or imbecility be proved or admitted at any particular period, it is pre- sumed to continue, until disproved, unless the derangement was accidental, being caused- by the violence of a disease.^ § 43. A spirit of comity., and a disposition to friendly inter- course, are also presumed to exist among nations, as well as among individuals. And in the absence of any positive rule. 1 Watson V. King, 1 Stark. E. 121 ; Green v. Brown, 2 Stra. 1199 ; Park on Ins. 433. 2 Newman v. Jenkins, 10 Pick. 515. The production of a will, with proof of payment of a legacy under it, and of an entry in the register of burials, were held sufficient evidence of the party's death. Do#u. Penfold, 8 C. & P. 536. 3 Alderson v. Clay, 1 Stark. R. 405 ; 2 Stark Evid. 590, 688. * Crown V. King, 5 Met. 173. 5 Attorney-General ». Parnther, 3 Bro. Ch. Ca. 443 ; Peaslee v. Robbins, 3 Metcalf 's R. 164 ; Hix v. Whittemore, 4 Met. 545 ; [Perkins v. Perkins, 39 N. H. a63]; 1 Collinson on Lunacy, 55; Shelford'on Lunatics, 275- 1 Hal. P. C. 30 ; Swinb. on Wills, Part IL § iii. 6, 7. [See post, Vol. 2,' § 369-374, tit. Insanity, and §§ 689, 690.] CHAP. IV.] PRESUMPTIVE EVIDENCE. 67 affirming or denying, or restraining the operation of for- eign laws, Courts of justice presume the adoption of them by their own government, unless they are repugnant to its policy, or prejudicial to its interest.^ The instances here given, it is believed, will sufficiently illustrate this head of presumptive evidence. Numerous other examples and cases may be found in the treatises already cited, to which the reader is referred.^ § 44. Presumptions of Fact, usually treated as composing the second general head of presumptive evidence, can hardly be said, with propriety, to belong to this branch of the law. They are, in truth, but mere arguments, of which the major premise is not a rule of law ; they belong equally to any and every subject-matter ; and are to be judged by the common and received tests of the truth of propositions, and the valid- ity of arguments. They depend upon their own natural force and efficacy in generating belief or conviction in the mind, as derived from those connections, which are shown by experience, irrespective of any legal relations. They dif- fer from presumptions of law in this essential respect, that while those are reduced to fixed fules, and constitute a branch of the particular system of jurisprudence to which they be- long, these merely natural presumptions are derived wholly and directly from the circumstances of the particular case, by means of the common experience of mankind, without the aid or control of any rules of law whatever. Such, for example, is the inference of guilt, drawn from the discovery of a broken knife in the pocket of the prisoner, the other part of the blade being found sticking in the window of a house, which, by means of such an instrument, had been burglariously entered. These presumptions remain the same in their nature and operation, under whatever code the . ' Bank of Augusta v. Earle, 13 Peters, 519; Story on Confl. of Laws, §§ 36, 37. 2 See Mathews on Presumptive Evid. oh. 11 to eh. 22 ; Best on Presump- tions, passim. 58 LAW OF EVIDENCE. [PAET I. legal effect or quality of the facts, when found, is to be de- cided.i § 45. There are, however, some few general propositions in regard to matters of fact, and the weight of testimony by the Jury, which are universally taken for granted in the ad- ministration of justice, and sanctioned by the usage of the bench, and which, therefore, may with propriety be mentioned under this head. Such, for instance, is the caution, generally given to Juries, to place little reliance on the testimony of an accomplice, unless it is confirmed, in some material point, by other evidence. There is no presumption of the Common Law against the testimony of an accomplice ; yet experience has shown, that persons capable of being accom- plices in crime are but little worthy of credit ; and on this experience the usage is founded.^ A similar cautionds to be used in regard to mere verbal admissions of a party ; this kind of evidence being subject to much imperfection and mistake.^ Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sover- eign, agreeably to the majcim. Nullum tempus occurrit regi; yet, if the adverse claim could have had a legal commence- ment. Juries are instructed or advised to presume such com- mencement, after many years of uninterrupted adverse pos- session or enjoyment. Accordingly, royal grants have been thus found by the Jury, after an indefinitely long continued peaceable enjoyment, accompanied by the usual acts of own- ership.* So, after less than forty years' possession of a tract 1 See 2 Stark. Evid. 684; 6 Law Mag. 370. This subject has been very successfully illustrated by Mr. Wills, in his Essay on the Rationale of Cir- cumstantial Evidence, passim. [The facts, from which a presumption or inference is to be drawn, must be proved by direct evidence, and not be pre- sumed or inferred. Douglass v. Mitchell, 35 Penu. 440.] 2 See infra, §§ 380, 381. 3 Earle v. Picken, 5 C. & P. 542, note ; Rex v. Simmons, 6 C. & P. 640 ; Williams v. Williams, 1 Hagg. Consist. R. 304. See infra, under the head of Admissions, § 200. 4 Rex V. Brown, cited Cowp. 110; Mayor of Kingston v. Horner, Cowp. 102; Eldridge w. Knott, Cowp. 215; Mather v. Trinity Church, 8 S. & R. CHAP. IV.] PRESUMPTIVE EVIDENCE. 69 of land, and proof of ^ prior order of council for the survey of the lot, and of an actual survey thereof accordingly, it was held, that the Jury were properly instructed to presume that a patent had been duly issued.^ In regard, however, to crown or public grants, a longer lapse of time has generally been deemed necessary, in order' to justify this presumption, than is considered sufficient to authorize the like presumption in the case of grants from private persons. § 46. Juries are also often instructed or advise^) in more or less forcible terms, to presume conveyances between pri- vate individuals, in favor of the party who has proved a right to the beneficial enjoyment of the property, and whose pos- session is consistent with the existence of such conveyance as is to be presumed ; especially if the possession, without such conveyance, would have been unlawful, or cannot be satisfactorily explained.^ This is done in order to prevent an apparently just title from being defeated by matter of mere form. Thus, Lord Mansfield declared, that he and some of the other Judges had resolved never to suffer a plaintiff in ejectment to be nonsuited by a term, outstanding in his own trustees, nor a satisfied term to be set up by a 509 ; Roe v. Ireland, 11 East, 280 ; Read v. Brookman, 3 T. R. 159 ; Good- title V. Baldwin, 11 East, 488; 2 Stark. Evid. 672. 1 Jackson v. McCall, 10 Johns. 377. "Si probet possessionem exeeden- tem memoriam hominum, habet vim tituli et privilegii, etiam a Principe. Et hsec est differentia. inter possessionem xxx. vel. xl. annorum, et non memora- bilis temporis ; quia per illam acquiritur noa directum, sed utile dominium ; per istam autem directum." Mascard. De Probat. Vol. 1, p. 239, Concl. 199, n. 11, 12. '^ The rule on this subject was stated by Tindal, C. J., in Doe v. Cooke, 6 Bing. 174, 179. " No case can be put," says he, "in which any presump- tion has been made, except where a title has been shown, by the party who calls for the presumption, good in substance, but wanting some collateral matter, necessary to make it complete in point of form. In such case, where the possession is shown to have been consistent with the fact directed to be presumed, and in such cases only, has it ever been allowed." And he cites as examples, Lade v. Halford, Bull. N. P. 110; England v. Sladg, 4 T. R. 682 ; Doe v. Sybourn, 7 T. R. 2 ; Doe v. Hilder, 2 B. & Aid. 782 ; Doe V. Wrighte, Id. 710. See Best on Presumptions, pp. 144-169. 60 LAW OP EVIDENCE. [PART I. mortgagor against a mortgagee ; but that' they would direct the Jury to presume it surrendered.^ Lord Kenyon also said, that in all cases where trustees ought to convey to the beneficial owner, he would leave it to the Jury to presume, where such presumption could reasonably be made, that they had conveyed accordingly.^ After the lapse of seventy years, the Jury have been instructed to presume a grant of a share in a proprietary of lands, from acts done by the supposed grantee in that capacity, as one of the proprietors.^ The same presumption has been advised in regard to the recon- veyance of mortgages, conveyances from old to new trustees, mesne assignments of leases, and any other species of docu- mentary evidence, and acts in pais, which is necessary for the support of a title in aU other respects evidently just.* It is sufficient that the party, who asks for the aid of this pre- 1 Lade v. Holford, Bull. N. P. 110. 3 Doe V. Sybourn, 7 T. K. 2; Doe f. Staples, 2 T. R. 696. The subject of the presumed surrender of terms is treated at large in Mathews on Pre- snmpt. Evid. ch. 13, p. 226-259, and is ably expounded by Sir Edw. Sug- den, in his Treatise on Vendors & Purchasers, ch. xv. sec. 3, vol. 3, p. 24-67, 10th ed. See also Best on Presumptions, § 113-122. 3 Farrar v. Merrill, 1 Greenl. 17. A by-law may, in like manner, be presumed. Bull. N. P. 211. The case of Corporations, 4 Co. 78; Cowp. 110. 4 Emery v. Grocock, 6 Madd. 54 ; Cooke v. Soltan, 2 Sim. & Stu. 154 ; Wilson V. Allen, 1 Jao. & W. 611, 620 ; Roe v. Reade, 8 T. R. 118, 122;' White 0. Foljambe, 11 Ves. 350; Keene v. Deardon, 8 East, 248, 266; Tenny v. Jones, 3 M. & Scott, 472 ; Rowe v. Lowe, 1 H. Bl. 446, 459 ; Van Dyck V. Van Buren, 1 Caines, 84 ; Jackson v. Murray, 7 Johns. 5 ; 4 Kent, Comm. 90, 91; Gray v. Gardiner, 3 Mass. 399; Knox v. Jenks, 7 Mass. 488 ;. Society, &c. v. Young, 2 N. Hamp. R. 310; Colman v. Anderson, 10 Mass. 105; Pejepsoot Proprietors v. Ransom, 14 Mass. 145; Bergen v. Bennet, 1 Caines, 1 ; Blossom v. Cannon, 14 Mass. 177; Battles v. HoUey, 6 Greenl. 145 ; Lady Dartmouth v. Roberts, 16 East, 334, 339 ; Livingston V. Livingston, 4 Johns. Ch. 287. Whether deeds of conveyance can be presumed, in cases where the law has made provisicrn for their registration, has been doubted. The point was argued but not decided, in Doe v. Hirst, 11 Price, 475. And see 24 Pick. 322. The better opinion seems to be that though the Court will not, in such case, presume the existence of a deed aa a mere inference of law, yet the fact is open for the Jury to find, as in other cases. See Rex v. Long Buckby, 7 East, 45 ; Trials per Pais, 237 ; Finch, 400 ; Valentine v. Piper, 22 Pick. 85, 98, 94. CHAP. IV.] PRESUMPTIVE EVIDENCE. 61 sumption, has proved a title to the beneficial ownership, and a long possession not inconsistent therewith ; and has made it not unreasonable to believe that the deed of conveyance, or other act essential to the title, was duly executed. Where these merits are v^ranting, the Jury are not advised to make the presumption.^ § 47. The same principle is applied to matters belonging to the personalty. Thus, where one town, after being set off from another, had continued for fifty years to contribute apnually to the expense of maintaining a bridge in the parent town, this was held sufficient to justify the presump- tion of an agreement to that effect.^ And, in general, it may be said that long acquiescence in any adverse claim of right is good ground, on which a Jury may presume that the claim had a legal commencement ; since it is contrary to general experience for one man long to continue to pay money to another, or to perform any onerous duty, or to submit to any inconvenient claim, unless in pursuance of some contract, or other legal obligation. § 48. In fine, this class of presumptions embraces all the connections and relations between the facts proved and the hypothesis stated and defended, whether they are mechanical 1 Doe V. Cooke, 6 Bing. 173, per Tindal, C. J. ; Doe v. Reed, 5 B. & A. 232 ; Livett v. Wilson, 3 Bing. 115 ; Sehauber v. Jackson, 2 Wend. 14, 37 ; Hepburn v. Auld, 5 Craneh, 262 ; Valentine v. Piper, 22 Pick. 85. This rule has been applied to possessions of divers lengths of duration ; as, fifty- two years, Ryder v. Hathaway, 21 Pick. 298 ; fifty years, Melvin v. Prop'rs of Locks, &c. 16 Pick. 137; 17 Pick. 255, S. C; thirty-three years. White V. Loring, 24 Pick. 319 ; thirty years, McNair v. Hunt, 5 Miss. 300; twenty- six years, Kewman v. Studley, Id. 291 ; twenty years, Brattle-Square Church V. Bullard, 2 Met. 363 ; but the latter period is held sufficient. The rule, however, does not seem to depend so much upon the mere lapse of a definite period of time as upon all the circumstances, taken together ; the question being exclusively for the Jury. [See also Attorney-General v. Propi-ietors of Meeting-house, &c. 3 Gray, 1, 62-65.] 2 Cambridge v. Lexington, 17 Pick. 222. See also Grote v. Grote, 10 Johns. 402; Schauber ;;. Jackson, 2 Wend. 36, 37. VOL. I. 6 62 LAW OF EVIDENCE. [PAllT I. and physical, or of a purely moral nature. It is that which prevails in the ordinary affairs of life, namely, the process of ascertaining one fact from the existence of another, without the aid of any rule of law ; and, therefore, it falls within the exclusive province of the Jury, who are bound to find accord- ing to the truth, even in cases where the parties and the Court would be precluded by an estoppel, if the matter were, so pleaded. They are usually aided in their labors by the advice and instructions of the Judge, more or less strongly urged, at his discretion ; but the whole matter is free before them, unembarrassed by any considerations of policy or con- venience, and unlimited by any boundaries but those of truth, to be decided by themselves, according to the convictions of their own understanding. PART II. OP THE RULES WHICH GOVERN THE PRODUCTION OF TESTIMONY. PAET II. OF THE -RULES WHICH GOVERN THE PRODUCTION OF TESTIMONY. CHAPTER I. OF THE RELEVANCY OF EVIDENCE. § 49. In trials of fact, without the -aid of a Jury, the ques- tion of the admissibility of evidence, strictly speaking, can seldom be raised ; since, whatever be the ground of objection, the evidence objected to must, of necessity, be read or heard by the Judge, in order to determine its character and value. In such cases, the only question, in effect, is upon the suffi- ciency and weight of the evidence. But in trials by Jury, it is the province of the presiding Judge to determine all questions on the admissibility of evidence to the Jury ; as weU as to instruct them in the rules of law, by which it is to be weighed. Whether there be any evidence or not, is a question for the Judge ; whether it is sufficient evidence, is a question for the Jury.^ If the decision of the question of ' Per Bailer, J., in Carpenter v. Hayward, Doug. 374. And see Best's Principles of Evidence, §§ 76-86. [And Chandler v. Von Roeder, 24 How. 224.] The notion that the Jury have the right, in any case, to determine questions of law, was strongly denied, and their province defined by Story, J., in The United States v. Battiste, 2 Sumn. 243. " Before I proceed," said he, " to the merits of this case, I wish to say a few words upon a point, suggested by the argument of the learned counsel for the prisoner, upon which I have had a decided opinion during my whole professional life.' It is, that in criminal cases, and especially in capital eases, the Jury are the judges of the law as well as of the fact. My opinion is, that the Jury are no 6 * 66 LAW OF EVIDENCE. [PART II. admissibility depends on the decision of other questions of fact, such as the fact of interest, for example, or of the execu- 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. In each of these cases, their verdict, when general, is necessarily compound- ed of law and of fact, and includes both. In each they must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the Court. But I deny, that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the Jury should respond as to the facts, and the Court as to the law. It is the duty of the Court to instruct the Jury as to the law ; and it is the duty of the Jury to follow the law, as it is laid down by the Court. Ttis is the right of every citizen ; and it is his only protection. If the Jury were at liberty to settle the law for themselves, the effect would be, not only that the law itself would be most uncertain, from the different views which differ- ent Juries might take of it ; but, in case of error, there would be no remedy or redress by the injured party ; for the Court would not have any right to review the law, as it had been settled by the Jury. Indeed it would be almost impracticable to ascertain what the law, as settled by the Jury, act- ually was. On the contrary, if the Court should err, in laying down the law to the Jury, there is an adequate remedy for the injured party, by a motion for a new trial, or a writ of error, as the nature of the jurisdiction of the particular Court may require. Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the . land, and not by the law as a Jury may understand it, or choose, from wan- tonness or ignorance, or accidental mistake, to interpret it. If I thought that the Jury were the proper judges of the law in criminal cases, I should hold it my duty to abstain from the responsibility of stating the law to them upon any such trial. But believing as I do, that every citizen has a right to be tried by the law, and according to the law ; that it is his privilege and truest shield against oppression and wrong ; I feel it my duty to state my views fully and openly on the present occasion." The same opinion as to the province of the Jury, was strongly expressed by Lord C. J. Best, in Levi V. Mylne, 4 Bing. 195. The same subject was more fully considered, in The Commonwealth v. Porter, 10 Met. 263, which was an indictment for selling intoxicating liquors without license. At the trial the defendant's counsel, being about to argue the questions of law to the Jury, was stopped by the Judge, who ruled, and so instructed the Jury, that it was their duty to receive the law from the Court, and implicitly to follow its direction upon matters of law. Exceptions being taken to this ruling of the Judge, the point was elaborately argued in bank, and fully considered by the Court, whose judgment, delivered by CHAP. I.] THE RELEVANCY OF EVIDENCE. 67 tion of a d§ed, these preliminary questions of fact are, in the first instance, to be tried by the Judge ; though he may, at Shaw, C. J., concluded as follows : " On the w.hole subject, the views of the Court may be summarily expressed in the following propositions : That, in all criminal cases, it is competent for the Jury, if they see fit, to decide upon all questions of fact embraced in the issue, and to refer the law arising thereon to the Court, in the form of a special verdict. But it is optional with the Jury thus to return a special verdict or not, and it is within their legiti- mate province and power to return a general verdict, if they see fit. . In thus rendering a general verdict, the Jury must necessarily pass upon the ■whole issue, compounded of the law and of the fact, and they may thus incidentally pass on questions of law. In forming and returning such gen- eral verdict, it is within the legitimate authority and power of the Jury to decide definitively upon all questions of fact involved in the issue, according to their judgment, upon the force and effect of the competent evidence laid before them ; and if in the progress of the trial, or in the summing up and charge to the Jury, the Court should express or intimate any opinion upon any such question of fact, it is within the legitimate province of the Jury to revise, reconsider, and decide contrary to such opinion, if, in their judgment, it is not correct, and warranted by the evidence. But it is the duty of the Court to instruct the Jury on all questions of law which appear to arise in the cause, and also upon all questions pertinent to the issue, upon which either party may request the direction of the Court upon matters of law. And it is the duty of the Jury to receive the law from the Court, and conform their judgment and decision to such instructions, as far as they un- derstand them, in applying the law to the facts to be found by them ; and it is not within the legitimate province of the Jury to revise, reconsider, or decide contrary to such opinion or direction of the Court^ in matter of law. To this duty Jurors are bound by a strong social and moral obligation, en- forced by the sanction of an oath, to the same extent and in the same man- ner as they are conscientiously bound to decide all questions of fact according to the evidence. It is no valid objection to this view of the duties of Jurors, that they are not amenable to any legal prosecution for a wrong decision in any matter of law; it may arise from an honest mistake of judgment, in their apprehension of the rules and principles of law, as laid down by the Court, especially in -perplexed and complicated cases, or from a mistake of judgment in applying them honestly to. the facts proved. The same reason applies to the decisions of Juries upon questions of fact clearly within their legitimate powers; they are not punishable , for deciding wrong. The law vests in them the power to judge, and it will presume that they judge hon- estly, even though there may be reason to apprehend that they judge erro- neously ; they cannot, therefore, be held responsible for any such decision, unless upon evidence which clearly establishes proof of corruption, or other Tvilful violation of duty. It is within the legitimate power, and is the duty 68 LAW OF EVIDENCE. [PART II. his discretion, take the opinion of the Jury upon Jhem. But where the question is mixed, consisting of law and fact, so of the Court, to superintend the course of the trial ; to decide upon the admission and rejection of evidence ; to decide upon the use of any books, papers, documents, cases, or worlcs of supposed authority, which may be offered upon either side ; to decide upon all collateral and incidental pro- ceedings ; and to confine parties and counsel to the matters within the issue. As the Jury have a legitimate power to return a general verdict, and in that case must pass upon the whole issue, this Court are of opinion that the defendant has a right, by himself or his counsel, to address the Jury, under the general superintendence of the Court, upon all the material questions involved in the issue, and to this extent, and in this connection, to address the Jury upon such questions of law as come within the issue to be tried. Such address to the Jury, upon questions of law embraced in the issue, by the defendant or his counsel, is warranted by the long practice of the Courts in this Commonwealth in criminal cases, in which it is within the established authority of a Jury, if they see fit, to return a general verdict, embracing the entire issue of law and fact." 10 Met. 285-287. See also the opinion of Lord Mansfield to the same effect, in Rex v. The Dean of St. Asaph, 21 How. St. Tr. 1039, 1040; and of Mr. Hargrave, in his note, 276, to Co. Lit. 155, where the earlier authorities are cited. The whol5 subject, with .particular reference to criminal cases, was reviewed with great learning and ability, by Gilchrist, J., and again by Parker, C. J., in Pierce's case, 13 N. Hamp. 536, where the right of the Jury to judge of the law was denied. And see, accordingly. The People v. Price, 2 Barb. S. C. R. 566 ; Town- send V. The State, 2 Blackf. 152 ; Davenport v. The Commonwealth, 1 Leigh, E. 588; Commonwealth v. Garth, 3 Leigh, R. 761 ; Montee v. The Com- monwealth, 3 J. J. Marsh. 150; Pennsylvania v. Bell, Addis. R. 160, 161 ; Commonwealth v. Abbott, 13 Met. 123, 124; Hardy v. The State, 7 Misso. R. 607 ; Snow's case, 6 Shepl. 346, semb. contra. [In State v. Croteau, 23 Vt. (8 Washb.) 14, the Supreme Court of Vermont, Bennett, J., dissenting, decided that in criminal cases the Jury has the right to determine the whole matter in issue, the law as well as the fact ; and the same rule is established in several other States. The legislature of Massachusetts, in 1855, (Acts, 1855, ch. 152,) enacted, "that in all trials for criminal offences, it shall be the duty of the Jury to try, according to established forms and principles of law, all causes which shall be committed to them, and after having received the instructions of the Court, to decide at their discretion, by a general ver- dict, both the fact and law involved in the issue, or to find a special verdict at their election ; but it shall be the duty of the Court to superintend the course of the trials, to decide upon the admission and rejection of evidence, and upon all questions of law raised during the trials, and upon all collateral and incidental proceedings, and also to charge the Jury and to allow bills of exception, and the Court may grant a new trial in cases of conviction." CHAP, r.] THE RELEVANCY OF EVIDENCE. 69 intimately blended as not to be easily susceptible of separate decision, it is submitted to the Jury, who are first instructed This act has been before the Supreme Judicial Court for exposition and con- struction upon exceptions taken to the ruling of the Court below in the trial of. an indictment against a defendant for being a common seller of intoxicat- ing liquors, and the Court has decided, as appears by a note of their decision in the Monthly Law Reporter for September, 1867, (Commonwealth v. An- thes, 20 Law Reporter, 298,) as follows : " Upon the question whether this statute purports to change the law as already existing and recognized in Com- monwealth V. Porter, 10 Met. 263, the Court were equally divided. But by a majority of the Court it was held, that if such change of the law is con- templated by the statute, the same is void." The application of this doctrine to particular cases, though generally uni- form, is not perfectly so where the question is a mixed one of law and fact. Thus, the question of probable cause belongs to the Court ; but where it js a ' mixed question of law and fact intimately blended, as, for example, where the party's belief \s a material element in the question, it has been held right to leave it to the Jury, with proper instructions as to the law. McDonald v. Rooke, 2 Bingh. N. C. 217; Haddrick v. Raine, 12 Ad. & El. 267, N. S. And see Taylor v. Willans, 2 B. & Ad. 845; 6 Bing. 183; Po.it, Vol. 2, § 454. The Judge has a right to act upon all the uncontradicted facts of the case; but where the credibility of witnesses is in question, or some material fact is in doubt, or some inference is attempted to be drawn from some fact not distinctly sworn to, the Judge ought to submit the question to the Jury. Mitchel V. Williams, 11 M. & W. 216, 217, per Alderson, B. In trespass de bonis asportatis, the bona fides of the defendant in taking the goods, and the reasonableness of his belief that he was executing his duty, and of his suspicion of the plaintiff', are questions for the Jury. Wedge V. Berkeley, 6 Ad. & E,l. 663 ; Hazeldine v. Grove, 3 Ad. & Kl. 997, N. S.; Hughes V. Buckland, 15 M. & W. 346. In a question of pedigree,"\t is for the Judge to decide whether the person, whose declarations a're oifered in evidence, was a member of the family, or so related as to be entitled to be heard on such a question. Doe v. Davies, 11 Jur. 607; 10 Ad. & El. 314, N. S. The question, what are usual covenants in a deed, is a question lor the Jury, and not a matter of construction for the Court. Bennett v. Womack, 3 C. & P. 96. In regard to reasonableness of time, care, skill, and the like, there seems to have been some diversity in the application of the principle ; but it is con- ceded that, " whether there has been, in any particular case, reasonable dili- gence used, or whether unreasonable delay has occurred, is a mixed question of laiw and fact, to be decided by the Jury, acting under the direction of the Judge, upon the particular circumstances of each case." Mellish v. Rawdon, 9 Bing. 416, per Tindal, C. J.; Nelson v. Patrick, 2. Car. & K. 641, per Wiide, C. J. The Judge is to inform the Jury as to the degree of diligence 70 LAW OF EVIDENCE. [PART II. by the Judge in the principles and rules of law, by which they are to be governed in finding a verdict ; and these in- structions they are bound to follow.^ If the 'gehuineness of a deed is the fact in question, the preliminary proof of its execution, given before the Judge, does not relieve the party offering it from the necessity of proving it to the Jury.'"' The Judge only decides whether there is, primd facie, any reason for sending it at all to the Jury.^ or oare, or skill which the law demands of the party, and what duty it devolves on him, and the Jury are to find whether that duty has been done. Hunter v. Caldwell, 11 Jur. 770; 10 Ad. & El. 69, N. S.; Burton v. Grif- fiths, 11 M. & W. 81 7 ; Facey v. Hurdom, 3 B. & C. 213 ; Stewart v. Cauty, 8 J&. & W. 160; Parker i'. Palmer, 4 B. & Aid. 387 ; Pitt v. Shew, Id. 206; Mount V. Larkins, 8 Bing. 108 ; Phillips v. Irving, 7 M. & Gr. 325 ; Reece v. Rigby, 4 B. & Aid 202. But where the duty in regard to time i-i established by uniform usage, and the rule is well known ; as in the ease of notice of the dishonor of a bill or note, where the parties live in the same town ; or of the duty of sending such notice by the nexl post, packet, or other ship ; or of the reasonable hours or business hours of the day, within which a bill is to be presented, or goods to be delivered, or the like ; in such cases, the time of the fact being proved, its reasonableness is settled by the rule, and is declared by the Judge. See Story on Bills, §§ 231-234, 328, 349; Post, Vol. 2, §§ 178, 179, 186-188; [Watson v. Tarpley, 18 How. U. S. 517.] Whether by the word " month," in a contract, is meant a calendar or a lunar month, is a question of law ; but whether parties, in the particular case, intended to use it in the one sense or the other, is a question for the Jury, upon the evidence of circumstances in the case. Simpson v. Margitson, 12 Jur. 155 ; Lang v. Gale, 1 M. & S. Ill ; Hutchinson v. Bowker, 5 M. & W. 535 ; Smith v. Wilson, 3 B. & Ad. 728 ; Jolly v. Young, 1 Esp. 186 ; Walker v. Hunter, 2 M. Gr. & Se. 324. 1 1 Stark. Evid. 510, 519-526 ; Hutchinson v. Bowker, 5 M. & W. 535 ; Williams v. Byrne, 2 N. & P. 139; McDonald k. Kooke, 2 Bing. N. 0. 217; James v. Phelps, 11 Ad. & El. 483 ; 3 P. & D. 231, S. C. ; Panton i;. Wil- liams, 2 Ad. & El. 169, N. S. ; Townsend v. The State, 2 Blackf. 151 ; Mont- gomery I). Ohio, 11 Ohio R. 424. Questions of interpretation, as well as of construction of written instruments, are for the Court alone. Infra, § 277, note (1). But where a doubt, as to the application of the descriptive por- tion of a deed to external objects arises from a latent ambiguity, and is there- fore to be solved by parol evidence, the question of intention is necessarily to be determined by the Jury. Reed v. Proprietors of Locks, &c., 8 How. S. C. R. 274; [Savignac v. Garrison, 18 lb. 136.] 2 Ross V. Gould, 5 Greenl. 204. 3 The subject of the functions of the Judge, as distinguished from those of CHAP. I.] THE KBLEVANCY OP EVIDENCE. 71 § 50. The production of evidence to the Jury is governed by certain principles, which may be treated under four gen- eral heads or rules. The first of these is, that the evidence must correspond with the allegations, and be confined to the point in issue. The second is, that it is sufficient, if the sub- stance only of the issue be proved. The third is, that the burden of proving a proposition, or issue, lies on the party holding the affirmative. And the fourth is, that the best evi- dence of which the case, in its nature, is susceptible, must always be produced. These we shall now consider in their order. § 51. First. The pleadings at Common Law are com- posed of the written allegations of the parties, terminating in a single proposition, distinctly affirmed on one side, and denied on the other, called the issue. If it is a proposition of fact it is to be tried by the Jury, upon the evidence ad- duced. And it is an established rule, which we state as the FIRST EULE, govcming in the production of evidence, that the evidence offered must correspond with the allegations, and be confined to the point in issue.^ This rule supposes the allegations to be material and necessary. Surplusage, there- fore, need not be proved ; and the proof, if offered, is to be rejected. The term, surplusage, comprehends whatever may be stricken from the record, without destroying the plaintiff's the Jury, is fully and ably treated in an article in the Law Review, No. 3, for May, 1846, p. 27-44. [It is the province of the Judge who presides at the trial to decide allquestions on the admissibility of evidence. It is also his province to decide any preliminary questions of fact, however intricate, the solution of which may be necessary to enable him to determine the other question of admissibility. And his decision is conclusive, unless he saves the question for revision by the full Court, on a report of the evidence, or coun- sel bring up the question on a bill of exceptions which contains a statement of the evidence. Gorton v. Hadsell, 9 Cush. 511; Bartlett v. Smith, 11 Mees. & Welsh. 483. Thus the question whether the application to a justice of the peace, under a statute, to call a meeting of the proprietors of a meet- ing-house, was signed by five at least of such proprietors, as preliminary to the question of the admissibility of the records of such meeting, is for the Judue and not for the Jury. Gorton v. Hadsell, ubi supra^ 1 See Best's Principles of Evidence, § 229-249. 72 LAW OF EVIDENCE. [PART II. / right of action ; as if, for example, in suing the defendant for breach of warranty upon the sale of goods, he should set forth, not only that the goods were not such as the defendant warranted them to be, but that the defendant well knew that they were not.^ But it is not every immaterial or unneces- ,sary allegation that is surplusage ; for if the party, in stating ihis title, should state it with unnecessary particularity, he I must prove it as alleged. Thus, if, in justifying the taking 'of cattle damage-feasant, in which case it is sufficient to allege that they were doing damage in his freehold, he should state a seisin in fee, which is traversed, he must prove the seisin in fee ;'^ for if this were stricken from the declaration, the plaintiff's entire title would be destroyed. And it appears that in determining the question, whether a particular averment can be rejected, regard is to be had to the nature of the averment itself, and its connection with the substance of the charge, or chain, rather than to its gram- matical collocation or structure.^ § 51 a. It is not necessary, however, that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; although, alone, it might not justify a verdict in accordance with it.* Nor is it necessary that its relevancy 1 Williamson v. Allison, 2 East, 446 ; Peppin v. Soloipojis, 5 T. R. 496 ; Bromfield v. Jones, 4 B. & C. 380. 2 Sir Francis Leke's case, Dyer, 365 ; 2 Saund. 206 a, note 22 ; Stephen on Pleading, 261, 262; Bristow v. Wright, Doug. 665; Miles v. Sheward, 8 East, 7, 8, 9 ; I Smith's Leading Cases, 328, note. 3 1 Stark. Evid. 386. 4 McAllister's case, 11 Shepl. 139 ; Haughey v. Strickler, 2 Watts & Serg. 411 ; Jones v. Vanzandt, 2 McLean, 596 ; Lake v. Mumford, 4 Sm. & Marsh. 312 ; Belden v. Lamb, 17 Conn. 441. Where the plaintiff's witness denied the existence of a material fact, and testified that persons connected with the plaintiff had offered him money to assert its existence; the plaintiff was permitted, not only to prove the fact, but to disprove the subornation, on the ground that this latter fact had become material and relevant, inasmuch as its truth or falsehood may fairly influence the belief of the Jury as to the whole case. Melhuish v. Collier, 15 Ad. & El. 878, N. S. CHAP. I.] THE RELEVANCY OF EVIDENCE. 73 should appear at the time when it is offered; it being the usual course to receive, at any proper and convenient stage of the trial, in the discretion of the Judge, any evidence which the counsel shows will be rendered material by other evidence, which he undertakes to produce. If it is not sub- sequently thus connected with the issue, it is to be laid out of the case.^ § 52. This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable pre- sumption or inference as to the principal fact or matter in dispute ; and the reason is, that such evidence tends to draw away the minds of the Jurors from the point in issue, and to excite prejudice, and mislead them ; and moreover the adverse party, having had no notice of such a course of evi- dence, is not prepared to rebut it.^ Thus, where the ques- tion between landlord and tenant was, whether the rent was payable quarterly, or half-yearly, evidence of the mode in which other tenants of the same landlord paid their rent was held inadmissible.^ And where, in covenant, the issue was whether the defendant, who was a tenant of the plain- tiff, had committed waste, evidence of bad husbandry, not amounting to waste, was .rejected.* So, where the issue was, whether the tenant had permitted the premises to be out of repair, evidence of voluntary waste was held irrelevant.^ This rule was adhered to, even in the cross-examination of witnesses ; the party not being permitted, as will be shown 1 McAllister's case, supra ; Van Buren v. Wells, 19 Wend. 203 ; Crenshaw V. Davenport, 6 Ala. 390 ; Tuzzle v. Barclay, Id. 407 ; Abney v. Kingsland, 10 Ala. 355 ; Yeatman v. Hart, 6 Humph. 375. 2 Infra, § 448. But counsel may, on cross-examination, inquire as to a fact apparently irrelevant, if he will undertake afterwards to show its rele- vancy, by other evidence. Haigh v. Belcher, 7 C. & P. 339. 3 Carter v. Pryke, Peake's Cas. 95. [See also Holingham v. Head, 4 Com. B. Rep. N. S. 388.] * Harris v. Mantle, 3 T. R. 397. See also Balcetti v. Serani, Peake's Cas. 142; Furneaux v. Hutchins, Cowp. 807 ; Doe v. Sisson, 12 East, 61 ; Hol- combe v. Hewson, 2 Campb. 391 ; Viney v. Bass, 1 Esp. 292 ; Clothier v. Chapman, 14 East, 331, note. 5 Edge V. Pemberton, 12 M. & W. 187. VOL. I. 7 74 LAW OF EVIDENCE. [PAKT IF. hereafter,^ to ask the witness a question in regard to a mat- ter not relevant to the issue, for the purpose of afterwards contradicting him.^ § 53. In some cases, however, evidence has been received of facts which happened before or after the principal transac- tion, and which had no direct or apparent connection with it ; and therefore their admission might seem, at first view, to constitute an exception to this rule. But those will be found to have been cases, in which the knowledge or intent of the party was a material fact, on which the evidence, apparently collateral, and foreign to the main subject, had a direct bearing, and was therefore admitted. Thus, when the question was, whether the defendant, being the acceptor of a bill of exchange, either knew that the name of the payee was fictitious, or else had given a general authority to the drawer, to draw bills on him payable to fictitious persons, evidence was admitted to show, that he had accepted other bills, drawn in like manner, before it was possible to have trans- mitted them from the place at which they bore date.^ So, in an indictment for knowingly uttering a forged document, or a counterfeit bank-note, proof of the possession, or of the prior or subsequent utterance of other false documents or notes, though of a different description, is admitted, as mate- rial to the question of guilty knowledge or intent.* So, in 1 See infra, §§ 448, 449, 450. 2 Crowley u. Page, 7 Car. & P. 789; Harris v. Tippet, 2 Campb. 637; Eex V. Watson, 2 Stark. R. 116 ; Commonwealth v. Buzzel, 16 Pick. 157, 158; Ware v. Ware, 8 Greenl. 42. [Coombs v. Winchester, 39 N. H. 1.] A further reason may be, that the evidence, not being to a material point, cannot be the subject of an indictment for perjury. Odiorne v. Wihkley, 2 Gall. 51, 53. 3 Gibson v. Hunter, 2 H. Bl. 288 ; Minet. v. Gibson, 3 T. R. 481 ; 1 H. Bl. 569. 4 Eex V. Wylie, 1 New Eep. 92, 94. See other examples in McKenney V. Dingley, 5 Greenl. 1 72 ; Bridge v. Eggleston, 14 Mass. 245 ; Rex v. Ball, 1 Campb. 824 ; Rex v. Roberts, 1 Campb. 399 ; Rox v. Houghton, Russ. & Ry. 130 ; Rex v. Smith, 4 C. & P. 411 ; Eickman's case, 2 East, P. C. 1035 ; Robinson's case, Id. 1110, 1112 ; Eex v. Northampton, 2 M. & S. 262 ; Com- monwealth v: Turner, 3 Met. R. 19. See also Bottomley v. United States, 1 CHAP. I.] THE KEliEVANCY OF EVIDENCE. 76 actions for defamation, evidence of other language, spoken or written by the defendant at other times, is admissible under the general issue, in proof of the spirit and intention of the party, in uttering the words or publishing the libel charged ; and this, whether the language thus proved be in itself ac- tionable or not.^ Cases of this sort, therefore, instead of being exceptions to the rule, fall strictly within it. Story, R. 143, 144, where this doctrine is clearly expounded by Story, J. ; Pierce v. Hoffman, 24 Vermont, 525. ' Pearson v. Le Maitre, 5 M. & Gr. 700, 6 Scott, N. E. 607, S. C. ; Rus- tell V. Macquister, 1 Campb. 49, n. ; Saunders v. Mills, 6 Ring. 213 ; War- wicii V. Foulkes, 12 M. & W. 507 ; Long v. Rarrett, 7 Ir. Law R. 439 ; 8 Ir. Law R. 331, S. C. on error ; [Post, Vol. 2, § 418 ; 2 Starkie on Slander, 53-57. So for the purpose of proving that a conveyance of property made by a bankrupt, was fraudulent under the United States Hankrupt Act of 1841, because made to defraud the plaintiff of his debt, evidence is admissible tending to show that the defendant entertained such fraudulent intent even before the passage of said bankrupt act. Rigelow, J., In delivering the opin- ion of the Court, said : " The inquiry before the Jury involjred two essential elements. One was the establishment of a fraudulent design on the part of the defendant towards his creditors ; the other was the carrying out and ful- filment of that design through the instrumentality of the bankrupt act. To maintain the first of these propositions, as one link in the chain of evidence, proof of an intent, prior to the passage of the bankrupt act, to defraud the plaintiff of his debt by a fraudulent concealment and conveyance of his prop- erty, was clearly competent. Whenever the intent of a party forms part of the matter in issue, upon the pleadings, evidence may be given of other acts, not in issue, provided they tend to establish the intent of the party in doing the acts in question. Rose. Crim. Ev. (3d Am. ed.) 99. The reason for this rule is obvious. The only mode of showing a present intent is often to be found in proof of a like intent previously entertained. The existence in the mind of a deliberate design to do a certain act, when once proved, may properly lead to the inference that the intent once harbored continued and was carried into effect by acts long subsequent to the origin of the motive by which they were prompted. Even in criminal cases, acts and declarations of a party made at a former time are admissible to prove the intent of the same person at the time of the commission of an offence. 2 Phil. Ev. (3d ed.) 498 ; Rose. Crim. Ev. (3d Amer. ed.) 95. In the proof of cases involving the motives of men as influencing and giving character to their acts, it is impos- sible to confine the evidence within any precise limit. It must necessarily proceed by steps or stages leading to the main point in issue. In the case at bar, when the plaintiff had proved an intent on the part of the defendant to conceal his property, for the purpose of defrauding his creditors, anterior to the passage of the bankrupt act, he had advanced one step towards the proof 76 LAW 01' EVIDENCE. [PART II. § 53 a. In proof of the ownership of lands, by acts of pos- session, the same latitude is allowed. It is impossible, as has been observed, to coni&ne the evidence to the precise spot on which a supposed trespass was committed ; evidence may be given of acts done on other parts, provided there is such a common character of locality between those parts and the spot in question, as would raise a reasbnable inference in Ihe minds of the Jury that the place in dispute belonged to the party, if the other parts did. The evidence of such acts is admissible propria vigore, as tending to prove that he who did them is the owner of the soil ; though if they were done in the absence of all persons interested to dispute them, they are of less weight.-^ § 54. To this rule may be referred the admissibility of evidence of the general character of the parties.^ In civil cases, such evidence is not admitted, unless the nature of the action involves the general character of the party, or goes directly to affect it.^ Thus, evidence impeaching the pre- vious general character of the wife or daughter, in regard to chastity, is admissible in an action by the husband or father for seduction ; and this, again, ipay be rebutted by counter proof.* But such evidence, referring to a time subsequent to of the real issue before the Jury, and if he satisfied the Jury that this intent once harbored continued in the mind of the defendant, and was carried out by availing himself of the provisions of the bankrupt act, he had thus proved by a legitimate chain of evidence the matter set up in his specification as a ground for invalidating the defendant's discharge in bankruptcy." Cook v. Moore, 11 Cush. 216-217.] 1 Jones V. Williams, 2 M. & W. 326, per Parke, B. And see Doe v. Kemp, 7 Bing. 332 ; 2 Bing. N. C. 102. 2 [Commonwealth v. Webster, 5 Cush. 324, 325. See as to character of witnesses, post, § 469.] 3 Attorney-General v. Bowman, 2 B. & P. 532, expressly adopted in Fowler v. iEtna Fire Ins. Co. 6 Cowen, 673, 675 ; Anderson v. Long, 10 S. & R. 55 ; Humphrey v. Humphrey, 7 Conn. 116; Nash v. Gilkeson, 4 S. & R. 352 ; Jeffries v. Harris, 3 Hawks, 105 ; [Pratt v. Andrews, 4 Comst. 493 ; Porter v. Seller, 23 Penn. State R. 424 ; see also 24 lb. 401, 408 ; Goldsmith V. Pioard, 27 Ala. 142; Lander v. Seaver, 32 Vt. 114.] 4 Bate 0. Hill, 1 C. & P. 100 ; Verry v. Watkins, 7 C. & P. 308 ; Car- CHAP. I.] THE RELEVANCY OF EVIDENCE. 77 the act complained of, is rejected.^ And generally, in ac- tions of tort, wherever the defendant is charged with fraud from mere circumstances, evidence of his general good char- acter is admissible to repel it.^ So, also, in criminal prose- penter v. Wahl, 11 Ad. & El. 803 ; 3 P. & D. 457, S. C. ; Elsam v. Faucett, 2 Esp. 562 ; Dodd v. Norris, 3 Campb. 519. See contra, McKea v. Lilly, 1 Iredell, K. 118. 1 Elsam V. Faueett, 2 Esp. 562 ; Coote v. Berty, 12 Mod. 232. The rule is the same in an action by a woman, for a breach of a promise of marriage. See Johnson v. Caulkins, 1 Johns. Cas. 116; Boynton v. Kellogg, 3 Mass. 189 ; Foulkes v. Sellway, 3 Esp. 236 ; Bamfield v. Massey, 1 Campb. 460; Dodd V. Norris, 3 Campb. 519. ^ Ruan V. Perry, 3 Caines, 120. See also Walker v. Stephenson, 3 Esp. 284. This case of Ruan r. Perry has sometimes been mentioned with disap- probation ; but, when correctly understood, it is conceived to be not opposed to the well-settled riile, that evidence of general character is admissible only in cases where it is involved in the issue. In that case the commander, of a national frigate was sued in trespass, for seizing and detaining the plaintiff's vessel, and taking her out of her course, by means whereof she was cap- tured by an enemy. The facts were clearly proved ; but the question was, whether the defendant acted in honest obedience to his instructions from the Navy Department, which were in the case, or with a fraudulent intent, and in collusion With the captors, as the plaintiff alleged to the Jury, and attempted to sustain by some of the circumstances proved. It was to repel this imputation of fraudulent intent, inferred from slight circumstances, that the defendant was permitted to appeal to his own " fair and good reputa- tion." And in confirming this decision in bank, it was observed, that " In actions of tort, and especially charging a defendant with gross depravity and fraud, upon circumstances merely, evidence of uniform integrity and good character is oftentimes the only testimony which a defendant can oppose to suspicious circumstances." On this ground this case was recognized by the Court as good law, in Fowler v. .^tna Fire Ins. Co. 6 Cowen, 675. And five years afterwards, in Townsend v. Graves, 3 Paige, 455, 456, it was again cited with approbation by Chancellor Walworth, who laid it down as a general rule of evidence, "that if a party is charged with a crime, or any other act involving moral turpitude, which is endeavored to be fastened upon him by circumstantial evidence, or by the testimony of witnesses of doubtful credit, he may introduce proof of his former good character for honesty and integrity, to rebut the presumption of guilt arising from such evidence, which it may be impossible for him to contradict or explain." In Gough v. St. John, 16 Wend. 646, the defendantwas sued in an action on the case, for a false representation as to the solvency of a third person. The repre- sentation itself was in writing, and verbal testimony was offered, tending to show that the defendant knew it to be false. To rebut this charge, proof 7* 78 LAW OF EVIDENCE. [PART II. cutions, the charge of a rape, or of an assault with intent to commit a rape, is considered as involving not only the gen- eral character of the prosecutrix for chastity, but the particu- lar fact of her previous criminal connection with the prisoner, though not with other persons.^ And in all cases, where evi- dence is admitted touching the general character of .the party, it ought manifestly to bear reference to the nature of the charge against him.^ § 55. It is not every allegation of fraud that may be said to put the character in issue ; for, if it were so, the defend- that the defendant sustained a good character for honesty and fairness in dealing, was offered and admitted. Cowen, J., held, that the fraudulent in- tent was a necessary inference of law from the falsity of the representation ; and that the evidence of character was improperly admitted. He proceeded to cite and condemn the case of Ruan v. Perry, as favoring the general ad- missibility of evidence of character in pivil actions, for injuries to property. But such is manifestly not the doctrine of that case. It only decides, that where intention (not knowledge') is the point in issue, and the proof consists of slight circumstances, evidence of character is admissible. The other Judges agreed that the evidence was improperly admitted in that case, but said nothing as to the case of Ruan v. Perry. They denied, however, that fraud was in such cases an inference of law. The ground on which evidence of good character is admitted in criminal I prosecutions is this, that the intent with which the act, charged as a crime, I was done, is of the essence of the issue ; agreeably to the maxim, Nemo reus \ est, nisi mens sit rea ; and the prevailing character of the party's mind, as ■evinced by the previous habit of his life, is a material element in discover- ■ing that intent in the instance in question. Upon the same principle, the same evidence ought to be admitted in all other cases, whatever be the form of proceeding, where the intent is material to be found as a fact in- volved in the issue. 1 Rex V. Clarke, 2 Stark. 241 ; 1 Phil. & Am. on Evid. 490 ; Low v. Mitchell, 6 Shepl. 372 ; Commonwealth v. Murphy, 14 Mass. 887; 2 Stark Evid. (by Metcalf,) 369, note (1) ; Rex v. Martin, 6 P. & C. 562 ; Rex v. Hodson, Russ. & Ry. 211 ; Regina v. Clay, 5 Cox, Cr. C. 146. But in an action on the case for seduction, evidence of particular acts of unchastity with other persons is admissible. Verry v. Watkins, 7 C. & P. 308. Wliere one was charged with keeping a house of ill fame after the statute went into operation, evidence of the bad reputation of the house before that time, was held admissible, as conducing to prove that it sustained the same reputation afterwards. Cad well v. The State, 17 Conn. R. 467. 2 Douglass V. Tousey, 2 Wend. 352. CHAP. I.] THE KELBVANCY OF EVIDENCE. 79 ant's character would be put in issue in the ordinary form of declaring in assumpsit. This expression is technical, and confined to certain actions, from the nature of which, as in the preceding instances, the character of the parties, or some of them, is of particular importance. This kind of evidence is therefore rejected, wherever the general character is in- volved by the plea only, and not by the nature of the action.^ Nor is it received in actions of assault and battery;^ nor in assumpsit ; ^ nor in trespass on the case for malicious prose- cution ; * nor in an information for a penalty for violation of the civil, police, or revenue laws ;^ nor in ejectment, brought in order to set aside a will for fraud committed by the de- fendant.^ Whether evidence impeaching the plaintiff's pre- vious general character is admissible in an action of slander, as affecting the question of damages, is a point which has been much controverted ; but the weight of authority is in favor of admitting such evidence.^ But it seems that the 1 Anderson v. Long, 10 S. & R. 55 ; Potter v. Webb et al. 6 Greenl. 14 ; Gregory v. Thomas, 2 Bibb. 286. 2 Givens v. Bradley, 3 Bibb, 192. But in the Admiralty Courts, where a seaman sues against the master for damages, for illegal and unjustifiable pun- ishment, his general conduct and character during the voyage are involved in the issue. Pettingill v. Dinsmore, Daveis, R. 208, 214. 3 Nash V. Gilkeson, 5 S. & R. 352. * Gregory v. Thomas, 2 Bibb, 286. 5 Attorney-General c. Bowman, 2 B. & P. 532, note. 6 Goodright v. Hicks, Bull. N. P. 296. [Nor is the character of the plain- tiff involved in the issue, where the action is on a policy of insurance against loss by fire, and the defence is that the fire was occasioned by the wilful and fraudulent act of the plaintiff. The nature of the action excludes all such inquiry or evidence in relation thereto. Schmidt v. New York, &c. Ins. Co. 1 Gray, 529, 535 ; nor in an action for commencing a suit against the plain- tiff without authority, where the plaintiff at the trial gives notice that he shall claim no damages for special injury to his character by reason of the suit. Smith V. Hyudman, 10 Cush. 554.] 7 2 Starkie on Slander, 88, 89-95, note; Root e. King, 7 Cowen, 613; Bailey v. Hyde, 3 Conn. 463 ; Bennett v. Hyde, 6 Conn. 24 ; Douglass ». Tousey, 2 Wend. 352 ; Inman v. Foster, 8 Wend. 602 ; Lamed v. Bufiing- ton, 3 Mass. 552 ; Walcott v. Hall, 6 Mass. 514 ; Ross v. Lapham, 14 Mass. 275 ; Bodwell v. Swan, 3 Pick. 378 ; Buford v. McLuny, 1 Nott & McCord, 268 ; Sawyer v. Eifert, 2 Nott & McCord, 511 ; King o. Waring et ux. 5 Esp. 14 ; Rodriguez v. Tadmire, 2 Esp. 721 ; v. Moore, 1 M. & S. 80 LAW Of EVIDENCE. [PART II. character of the party, in regard to any particular trait, is not in issue, unless it be the trait which is involved in the matter charged against him ; and of this it is only evidence of gen- eral reputation, which is to be admitted, and not positive evi- dence of general bad conduct} 284; Earl of Leicester v. Walter, 2 Campb. 251; Williams v. Callendar, Holt's Cas. 307 ; 2 Stark. Evid. 216. In Foot v. Tracy, 1 Johns. 45, the Supreme Court of New York was equally divided upon this question ; Kent and Thompson, Js., being in favor of admitting the evidence, and Living- ston and Tompkins, Js., against it. [In a later case, Springstein v. Eield, An- thon, 185, Spencer, J., said he had no doubt about the admissibility of the evidence offered in the case of Foot v. Tracy, but for particular reasons con- nected with that case, he forbore to express any opinion on the hearing of the same. In Paddock v. Salisbury, 2 Cowen, 811, the question came again before the Supreme Court of New York, and the evidence was admitted in mitigation of damages, under ihe general issue, which was the only plea in that case.] In England, according to the later authorities, evidence of the general bad character of the plaintiff seems to be regarded as irrelevant, and, therefore, inadmissible. Phil. & Am. on Evid. 488, 489 ; Cornwall v. Richardson, Ry. & Mood. 305; Jones v. Stevens, 11 Price, 235. In this last case it is observable, that though the reasoning of the learned Judges, and especially of Wood, B., goes against the admission of the evidence, even though it be of the most general nature, in any case, yet the record before the Court contained a plea of justification aspersing the professional char- acter of the plaintiff' in general averments, without stating any particular acts of bad conduct ; and the point was, whether, in support of this plea, as well as in contradiction of the declaration, the defendant should give evi- dence that the plaintiff was of general bad character and repute, in his practice and business of an attorney. The Court strongly condemned the pleading as reprehensible, and said that it ought to have been demurred to, as due to the Court, and to the Judge who tried the cause. See tl' Anson v. Stuart, 1 T. R. 747 ; 2 Smuh's Leading Cases, 37. See also Rhodes v Bunch, 3 McCord, 66. In WilUston i;. Smith, 3 Kerr, 443, which was an action for slander by charging the defendant with larceny, the defendant, in mitigation of damages, offered evidence of the plaintiff''s general bad char- acter ; which the Judge at Nisi Prius rejected ; and the Court held the rejection proper ; observing, that had the evidence been to the plaintiff's general character for honesty, it might have been admitted. [See post, Vol. 2, § 424.] 1 Swift's Evid. 140; Ross v. Lapham, 14 Mass. 575 ; Douglass v. Tousey, 2 Wend. 352 ; Andrews v. Vanduzer, 11 Johns. 38 ; Root v. King, 7 Cowen, 613 ; Newsam v. Carr, 2 Stark. 69 ; Sawyer v. Eifert, 2 Nott & McCord, 911 ; [Stone v. Varney, 7 Met. 86 ; Leonard v. Allen, 11 Cush. 241, 245; Watson V. Moore, 2 lb. 133 ; Orcutt v. Ranney, 10 lb. 183.] CHAP. II.] THE SUBSTANCE OF 'THE ISSUE. 81 CHAPTER II. OF THE SUBSTANCE OF THE ISSUE. § 56. A SECOND RULE, which governs in the production of evidence, is that it is sufficient, if the substance of the issue be proved. In the application of this rule, a distinction is made between allegations of matter of substcmce, and alle- gations of matter of essential description. The former may be substantially proved ; but the latter must be proved with a degree of strictness, extending in some cases even to literal precision. No allegation, descriptive of the identity of that which is legally essential to the claim or charge, can ever be rejected.'^ Thus in an action of malicious prosecution, the plaintiff alleges that he was acquitted of the charge on a certain day ; here the substance of the allegation is the ac- quittal, and it is sufficient, if this fact be proved on any day, the time not being material. But if the allegation be, that the defendant drew a bill of. exchange of a certain date and tenor, here every allegation, even to the precise day of the date, is descriptive of the bill, and essential to its identity, and must be literally proved.^ So also, as we have already seen, in justifying the taking of cattle damage-feasant, be- cause it was upon the close of the defendant, the allegation of a general freehold title is sufficient ; but if the party states, that he was seised of the close in fee, and it be traversed, the precise estate, which he has set forth, becomes an essentially descriptive allegation, and must be proved as 1 Stark. Evid. 373; Purcell v. Maonamara, 9 East, 160; Stoddard v. Palmer, 3 B. & C. 4 ; Turner v. Eyles, 3 B. & P. 456 ; Ferguson v. Har- wood, 7 Cranoh, 408, 413 ; [Post, Vol. 2, § 2-ll.J. 2 3 B. & C. 4, 5 ; Glassford on Evid. 309. 82 LAW OF EVIDENCE. [PAET II. alleged. In this case the essential and non-essential parts of the statement are so connected, as to be incapable of separa- tion, and therefore both are alike material.^ § 57. Whether an allegation is or is not so essentially de- scriptive, is a point to be determined by the Judge in the case before him ; and it depends so much on the particular circumstances, that it is difficult to lay down any precise rules by which it can in all cases be determined. It may depend, in the first ^ilace, on the nature of the averment itself, and the subject to which it is applied. But secondly, some averments the law pronounces formal, which otherwise, would, on general principles, be descriptive. And thirdly, the question, whether others are descriptive or not, will often depend on the technical maftner in which they are framed. § 58. In the first place, it may be observed, that any alle- gation, which narrows and limits that, which is essential, is necessarily descriptive. Thus, in contracts, libels in writing, and written instruments in general, every part operates by way of description of the whole. In these cases, therefore, allegations of names, sums, magnitudes, dates, durations, terms, and the like, being essential to the identity of the writing set forth, must, in general, be precisely proved.^ Nor is it material whether the action be founded in contract or in tort ; for in either case, if a contract be set forth, every alle- gation is descriptive. Thus, in an action on the case for deceit in the sale of lambs by two defendants, jointly, proof of sale and warranty by one only, as his separate property. 1 Stephen on Pleading, 261, 262, 419; Turner v. Eyles, 3 B. Se P. 456; 2 Saund. 206 a, n. 22 ; Sir Francis Leke's case, Dyer, 364 b. Perhaps the distinction taken by Lord Ellenborough, in Purcell v. Macnamara, and recognized in Stoddard v. Palmer, 3 B. & C. 4, will, on closer examination, result merely in this, that matters of description are matters of substance, when they go to the identity of anything material to the action. Thus the rule will stand, as originally stated, that the substance, and this alone, must- be proved. 2 Bristow V. "Wright, Doug. 665, 667; Churchill v. Wilkins, 1 T. R. 447; 1 Stark. Evid. 386, 388. CHAP. II.] THE SUBSTANCE OF THE ISSUE. -83 was held to be a fatal variance.' So, also, if the contract described be absolute, but the contract proved be condi- tional, or in the alternative, it is fatal.^ The consideration is equally descriptive and material, and must be strictly proved as alleged.^ Prescriptions, also, being founded in grants presumed, to be lost from lapse of time, must be strictly proved as laid ', for every allegation, as it is supposed to set forth that which was originally contained in a deed, is of course descriptive of the instrument, and essential to the identity of the grant.* ^n allegation of the character in which the plaintiff sues, or of his title to damages, though sometimes superfluous, is generally descriptive in its nature, and requires proof.^ § 59. Secondly, as to those averrhents which the law pro- ■aoxmces formal, though, on general principles, they seem to be descriptive and essential ; these are rather to be regarded as exceptions to the rule already stated, and are allowed for the sake of convenience. Therefore, though it is the nature of a traverse, to deny the allegation in the manner and form in which it is made, and consequently, to put the party to prove it to be true in the manner and form, as well as in 1 Weal V. King, et al. 12 East, 452. 3 Penny v. Porter, 2 East, 2 ; Lopez v. De Tastet, 1 B. & B. 538 ; Hig- gins V. Dixon, 10 Jur. 376; Hilt v. Campbell, 6 Greenl. 109; Stone v. Knowlton, 3 Wend. 374. See also Saxton v. Johnson, 10 Johns. 581; Snell V. Moses, 1 Johns. 96 ; Crawford v. Morrell, 8 Johns. 153 ; Baylies v. Fettyplace, 7 Mass. 325 ; Robbins v. Otis, 1 Pick. 368 ; Harris v. Raynor, 8 Pick. 541; White v. Wilson, 2 Bos. & Pul. 116; Whitaker v. Smith, 4 Pick. 83 ; Lower v. Winters, 7 Cowen, 263 ; Alexander v. Harris, 4 Cranch, 299. 3 Salloyv V. Beaumont, .2 B. & Aid. 765; Robertson v. Lynch, 18 Johns. 451 ; \_Post, § 68.] * Morewood v. Wood, 4 T. E. 157 ; Rogers v. Allen, 1 Campb. 309, 314, 315, note, (a.) But proof of a more ample right than is alleged, will be re- garded as mere redundancy. Johnson i. Thoroughgood, Hob. 64 ; Bush- wood V. Pond, Cro. El. 722 ; Bailiffs of Tewksbury ». Brieknell, 1 Taunt. 142; Surges w. Steer, 1 Show, 347; 4 Mod. 89, S. C. ; [Post, ^ 71.] 5 1 Stark. Evid. 390; Moises v. Thornton, 8 T. R. 303, 308 ; Berryman V. Wise, 4 T. R. 366. 84 LAW OF EVIDENCE. [PART II. general effect ; ^ yet where the issue goes to the point of the action, these words, modo et formd, are but words of form.^ Thus, in trover, for example, the allegation, that the plain- tiff lost the goods and that the defendant found them, is regarded as purely formal, requiring no proof ; for the gist of the action is the conversion. So, in indictments for homi- cide, though the death is alleged to have been caused by a particular instrument, this averment is but formal ; and it is sufficient if the manner of death agree in substance . with that which is charged, though the instrument be different ; as, if -a wound alleged to have been given with a sword, be proved to have been inflicted with an axe.^ But, where the traverse is of a collateral point in pleading, there the words, modo et formd, go to the substance of the issue, and are descriptive, and strict proof is required ; as, if a feoffment is alleged by dee.d, which is traversed modo et formd, evidence of a feoffment without deed will not suffice.* Yet, if in issues upon a collateral point, where the affirmative is on the defendant, partial and defective proof on his part should show that the plaintiff had no cause of action, as clearly as strict and full proof would do, it is sufficient.^ § 60. Thirdly, as to those averments, whose character, as being descriptive of not, depends on the manner in which they are stated. Every allegation, essential to the issue, must, as we have seen, be proved, in whatever form it be stated ; and things immaterial in their nature to the ques- tion at issue may be omitted in the proof, though alleged with the utmost explicitness and formality. There is, how- ever, a middle class of circumstances, not essential in their nature, which may become so by being inseparably con- 1 Stephen on Plead. 213. 2 Triah per pais, 308 (9th ed.) ; Co. Lit. 281 b. 3 2 Kussell on Crimes, 711 ; 1 East, P. C. 341. 4 Bull. N. P. 301 ; Co. Lit. 281, B. Whether virtute cujus, in a sheriff's plea in justification, is traversable, and in what cases, is discussed in Lucas v. Nockells, 7 Bligh, N. S. 140. 5 Ibid. ; 2 Stark. Ev. 394. CHAP. II.] THE SUBSTANCE OF THE ISSUE. 85 nected with the essential allegations. These must be proved as laid, unless they are stated under a videlicet; the office of which is to mark, that the party does not undertake to prove the precise circumstances alleged ; and in such cases he is ordinarily not holden to prove them.-' Thus in a dec- laration upon a bill of exchange, the date is in its nature essential to the identity of the bill, and must be precisely proved, though the form of allegation were, " of a certain date, to wit," such a date. On the other hand, in the case before cited, of an action for maliciously prosecuting the plaintiff for a crime, whereof he was acquitted on a certain day ; the time of acquittal is not essential to the charge, and need not be proved, though it be directly and expressly alleged.^ But where, in an action for breach of warranty upon the sale of personal chattels, the plaintiff set forth the price paid for the goods, without a videlicet, he was held bound to prove the exact sum alleged, it being rendered material by the form of allegation ; ^ though, had the aver-' ment been, that the sale was for a valuable consideration, to wit, for so much, it would have been otherwise. A vide- licet will not avoid a variance, or dispense with exact proof, in an allegation of material matter ; nor will the omission of it always create the necessity of proving, precisely as stated, matter which would not otherwise require exact proof. But, a party may, in certain cases, impose upon himself the neces- sity of proving precisely what is stated, if not stated under a videlicet.* 1 Stephen on Pleading, 309; 1 Chitty on PI. 261, 262, 348, (6tli ed.) ; Slukeley v. Butler, Hob. 168, 172; 2 Saund. ■291, note (1); Gleason v. McVickar, 7 Cowen, 42. 2 Supra, § 56 ; Pareell v. Maonamara, 9 East, 160; Gwinnett '». Phillips, 3 T. R. 643 ; Vail v. Lewis, 4 Johns. 450. 3 Durston v. Tuthan, cited in 3 T. R. 67 ; Symmons v. Knox, 3 T. R. 65 ; Arnfield v. Bates, 3 M. & S. 173 ; Sir Francis Leke's case. Dyer, 364, b; Stephen on Plead. 419, 420 ; 1 Chitty on PI. 348, (6th ed.) ■• Crispin ii. Williamson, 8 Taunt. 107, 112; Attorney-Gen. o. Jeffreys, M'Cl. R. 277 ; 2 B. & C. 3, 4 ; 1 Chitty on Plead. 348 a ; Grimwood v. Bar- ■ rett, 6 T. R. 460, 463 ; Bristow v. Wright, Doug. 667, 668. Tliese terms, "immaterial," and "impertinent," though formerly applied to two classes of VOL. I. 8 86 LAW OF EVIDENCE. [PAKT II. § 61. But, in general, the allegations of time, place, quan- tity, quality, and value, when not descriptive of the identity of the subject of the action, will be found immaterial, and need not be proved strictly as alleged. Thus, in trespass to the person, the material fact is the assault and battery ; the time and place not being material, unless made so by the nature of the justification, and the manner of pleading. And, in an action on a policy of insurance, the material alle- gation is the loss ; but whether total or partial is not mate- rial ; and if the former be alleged, proof of the latter is suf- ficient. So in assumpsit, an allegation, that a bill of ex- change was made on a certain day, is not descriptive, and therefore strict proof, according to the precise day laid, is not necessary ; though, if it were stated, that the bill bore date on that day, it would be otherwise.^ Thus, also, proof of cutting the precise number of trees alleged to have been cut. averments, are now treated as synonymous ; 3 D. & K. 209 ; the more accu- rate distinction being between these, and unnecessary allegations. Imma- terial or impertinent averments are those which need neither be alleged nor proved if alleged. Unnecessary averments consist of matters, which need not be alleged ; but, being alleged, must be proved. Thus, in an action of assumpsit upon a warranty on the sale of goods, an allegation of deceit on the part of the seller is impertinent, and need not be proved. Williamson V. Allison, 2 East, 416 ; Pantou v. Holland, 17 Johns. 92 ; Twiss v. Baldwin, 9 Conn. 292. So, where the action was for an injury to the plaintiff's re- versionary interest in land, and it was alleged, that the close at the time of the injury, was, and " continually from thence hitherto hath been, and still is," in the possession of one J. V., this latter part of the averment was held superfluous, and not necessary to be proved. Vowels o. Miller, 3 Taunt. 137. But if, in an action by a lessor against his tenant, for negligently keeping his fire, a demise for seven years be alleged, and the proof be of a lease at will only, it will be a fatal variance ; for though it would have suf- ficed to have alleged the tenancy generally, yet having unnecessarily quali- fied it, by stating the precise term, it must be proved as laid. Cudlip v. Bundle, Carth. 202. So, in debt against an officer for extorting illegsil fees on a fieri facias, though it is sufficient to allege the issuing of the writ of fieri facias, yet if the plaintifi" also unnecessarily allege the judgment on which it was founded, he must prove it, having made it descriptive of the principal thing. Savage v. Smith, 2 W. Bl. 1101 ; Bristow v. Wright, Doug. 668 ; Gould's PI. 160-165 ; Draper v. Garratt, 2 B. & C. 2. ' Gardiner v. Croadales, 2 Burr. 904 ; Coxon v. Lyon, 2 Campb. 307, n. CHAP. II.] THE SHBStANCB OF THE ISSUE. 87 in trespass ; or, of the exact amount of rent alleged to be in arrear in replevin ; or the precise value of the goods taken, in trespass or trover, is not necessary.' Neither is matter of aggravation, namely, that which only tends to increase the damages, and does not concern the right of action itself, of the substance of the issue. But, if the matter, alleged by way of aggravation, is essential to the support of the charge or claim, it must be proved as laid. § 62. But in local actions the allegation of place is mate- rial and must strictly be proved, if put in issue. In real actions, also, the statement of quality, as arable or pasture land, is generally descriptive, if not controlled by some other and more specific designation. And in these actions, as well as in those for injuries to real property, the abuttals of the close in question must be proved as laid ; for if one may be rejected, all may be equally disregarded, and the identity of the subject be lost.^ § 63. It being necessary to prove the substance of the issue, it follows, that any departure from the substance, in the evidence adduced, must be fatal ; constituting what is termed in the law a variance. This may be defined to be a disagreement between the allegation and the proof, in some matter, which, in point of law, is essential to the charge or claim.^ It is the legal, and not the natural identity, which is regarded ; consisting of those particulars only, which are in their nature essential to the action, or to the justification, or have become so by being inseparably connected, by the mode of statement, with that which is essential ; of which an example has already been given,* in the allegation of an estate in fee, when a general averment of freehold would 1 Harrison v. Barnby, 5 T. E. 248; Co. Lit. 282 a; Stephen on Plead- ing, 318 ; Hutchins v. Adams, 3 Greenl. 174. 2 Mersey & Irwell Nav. Co. r. Douglas,- 2 East, 497, 502 ; Bull. N. P. 89 ; Vowels V. Miller, 3 Taunt. 139, per Lawrence, J.; Kegina v. Cranage, 1 Salk. 385. [See post, Vol. 2, § 618 o.] 3 Stephen on PI. 107, 108. « Supra, § 51-66. 88 LAW OF EVIDENCE. [PART II. suffice. It is necessary, therefore, in these cases, first to ascertain what are the essential elements of the legal propo- sition in controversy, taking care to include all, which is indispensable to show the right of the plaintiff, or party affirming. The rule is, that whatever cannot be stricken out without getting rid of a part essential to the cause of action, must be retained, and of course must be proved, even though it be described with unnecessary particularity.^ The defendant is entitled to the benefit of this rule, to protect himself by the verdict ^.nd judgment, if the same rights should come again in controversy. The rule, as before remarked, does not generally apply to allegations of number, magnitude, quantity, value, time, sums of money, and the like, provided the proof in regard to these is sufficient to constitute the offence charged, or to substantiate the claim set up ; except in those cases where they operate by way of limitation, or description of other matters, in themselves essential to the offence or claim.^ 1 Bristow V. Wright, Doug. 668 ; Peppin v. Solomons, 5 T. K. 496; Wil- liamson w. Allison, 2 East, 446, 452. ^ Supra, § 61; Rickets . Smart, Id. 476 ; Fish v. Travers, 3 C. & P. 578 ; Gomstock v. Hadlyme, 8 Gonn. 261 ; Laeon u. Higgins, 3 Stark. R. 178; Corbett v. Corbett, 3 Gampb. 368; Homan v. Thompson, 6 G. & P. 717; Smart ». Rayner, Id. 721; Mills v. Oddy, Id. 728; Scott v. Hull, 8 Conn. 296. But see infra, § 76, tx. 4. 106 LAW OF EVIDENCE. [PART 11. reply ; there being no necessity for any proof on the part of the plaintiff.^ § 76. The difficulty in determining this point, exists chiefly in those cases, where the action is for unliquidated damages, and the defendant has met the whole case with an affirmative plea. In these actions the practice has been various in England ; but it has at length been settled by a rule, by the fifteen Judges, that the plaintiff shall begin in all actions for personal injuries, libel, and slander, though the general issue may not be pleaded, and the affirmative be on the defendant.^ In actions upon contract, it was, until recently, an open question of practice ; having been sometimes treated as a matter of right in the party, and at other times regarded as resting in the discretion of the Judge, under all the circumstances of the case.^ But it is now settled, in accordance with the rule adopted in other actions.* In this country it is generally deemed a matter of discretion, to be ordered by the Judge, at the trial, as he may think most conducive to the administration of justice ; but the weight of authority, as well as the analogies of the law, seem to 'be in favor of giving the opening and closing of the cause to the plaintiff, wherever the damages are in dis- 1 Hodges 11. Holden, 3 Campb. 366 ; Jackson v. Hesketh, 2 Stark. R. 518 ; Pearson r. Coles, 1- Mood. & Rob. 206 ; Uavis v. Mason, 4 Pick. 156 ; Leech v. Armitage, 2 Dall. 125. [Where a defendant under a rule of Court filed an admission of the plaintiff's prima facie case, in order to obtain the right to open and close, he was held not to be thereby estopped from setting lip in defence the statute of limitations. Emmons i'. Hayward, 11 Cush. 48; nor from sho\ying that the plaintiff had no title to the note sued on. Spauld- ing V. Hood, 8 Cush. 602. An auditor's report in favor of the plaintiff will not give the defendant the right to open and close. Snow v. Batchelder, 8 Gush. 513.] a Carter v. Jones, 6 C. & P. 64. 3 bedell V. Russell, Ry. & M. 293; -Fowler v. Coster, 1 M. & M. 241; Revett V. Braham, 4 T. R. 497 ; Hare v. Munn, 1 M. & M- 241, note ; Scott V. Hull, 8 Conn. 296 ; Burrell v. Nicholson, 6 C. & P. 202 ; 1 M. & R. 304, 306 ; Hoggett v. Exley, 9 C. & P. 324. See also 3 Chitty, Gen. Practice, 872-877. ' 4 Mercer v. Whall, 9 Jur. 576 ; 5 Ad. & El. 447, N. S. CHAP. III.] THE BURDEN OF PEOOF. 107 pute, unliquidated, and to be settled by the Jury upon such evidence as may be adduced, and not by computation alone.^ 1 Such was the course in Young v. Bairner, 1 Esp. 103, which was as- sumpsit for work, and a plea in abatement for the non-joinder of other defendants ; Kobey v. Howard, 2 Stark. R. 555, S. P. ; — Stansfield v. Levy, 3 Stark. R. 8, S. P.; — Lacon v. Higgins, 2 Stark. R. 178, where in assump- sit for goods, coverture of the defendant was the sole plea ; — Hare i'. Munn, 1 M. & M. 241, note, which was assumpsit for money lent, with a plea in abatement for the non-joinder of other defendants'; — Morris v. Lotan, 1 M. & Rob. 233, S. P. ; Wood v. Prlngle, Id. 277, which was an action for a libel, with several special pleas of justification as to part, but no general issue; and as to the parts not justified, judgment was suffered by default. See ace. Comstock V. Hadlyme, 8 Conn. 261 ; Ayer v. Austin, 6 Pick. 225 ; Hoggett V. Exley, 9 C. & P. 324 ; 2 M. & Rob. 251, S. C. On the other hand are Cooper V. Wakley, 3 Car. & P. 474; 1 M. & M. 248, S. C, which was case for a libel, with pleas in justification, and no general issue ; but this is plainly contradicted by the subsequent case of Wood v. Pringle, and has since been overruled in Mercer v. Whall ; — Cotton i/. James, 1 M. & M. 273 ; 3 Car. .& P. 505, S. C, which was trespass for entering the plaintiff's house, and taking his goods with a plea of justification under a commission of bank- ruptcy ; but this also is expressly contradicted in Morris v. Lotan ; — Bedell V. Russell, Ry. & M. 293, which was trespass of assault and battery, and for shooting the plaintiff; to which a justification was pleaded ; where Best, J., reluctantly, yielded to the supposed authority of Hodges v. Holden, 3 Campb. ^ 366, and Jackson v. Hesketh, 2 Stark. R. 581 ; in neither of which, how- ever, were the damages controverted ;^Fish v. Travers, 3 Car. & P. 578, decided by Best, J., on the authority of Cooper v. Wakley, and Cotton «. James ; — Burrell v. Nicholson, 6 Car. & P. 202, which was trespass for tak- ing the plaintiff''s goods in his house, and detaining them one hour, which the defendant justified as a distress for parish rates ; and the only issue was, whether the house was within the parish or not. ' But here, also, the damages were not in dispute, and seem to have been regarded as merely nominal. See also Scott «. Hull, 8 Conn. 296. In Norris v. Ins. Co. of North America, 3 Yeates, 84, which was covenant on a policy of insurance, to which performance was pleaded, the damages were not then in dispute, the parties having provisionally agreed upon a. mode of liquidation. But in England the entire subject has recently undergone a review, and the rule has been established, as applicable to all personal actions, that the plaititifi" shall begin, wherever he goes for substantial damages not already ascer- tained. Mercer v. Whall, 9 Jur. 676 ; 5 Ad. & El. 447, N. S. In this case Lord Denman, C. J., in delivering the judgment of the Court, expressed his opinion as follows : " The natural course would seem to be, that the plaintiff" should bring his own cause of complaint before the Court and Jury, in every case where he has anything to prove either as to th#facts necessary for his 108 LAW OP EVIDBNCB. [PAET II. r § 77. Where the proceedings are not according to the course of the Common Law, and where, consequently, the obtaining a verdict, or as to the amount of damage to which he conceives the proof of such facts may entitle him. The law, however, has by some been supposed to differ from this course, and to require that the defendant by admitting the cause of action stated on the record, and pleading only some affirmative fact, which, if proved, will defeat the plaintiff's action, may en- title himself to open the proceeding at the trial, anticipating the plaintiff's statement of his injury, disparaging him and his ground of complaint, offer- ing or not offering, at his own option, any proof of his defensive allegation, and, if he offers that proof, adapting it not to the plaintiff's case as estab- lished, but to that which he chooses to represent that the plaintiff's case will be. It appears expedient that the plaintiff should begin, in order that the Judge, the Jury, and the defendant himself should know precisely how the claim is shaped. This disclosure may convince the defendantthat the defence which he has pleaded cannot be established. On hearing the extent of the demand, the defendant may be induced at once to submit to it rather than persevere. Thus the affair reaches its natural and best conclusion. H this does not occur, the plaintiff, by bringing forward his case, points his atten- tion to the proper object of the trial, and enables the defendant to meet it with a full understanding of its nature and character. If it were a presump- tion of law, or if experience proved, that the plaintiff's evidence must always occupy many hours, and that the defendant's could not last more than as many minutes, some advantage would be secured by postponing the plain- tiff's case to that of the defendant. But, first, the direct contrary in both instances may be true ; and, secondly, the time would only be saved by stopping the cause for the purpose of taking the verdict at the close of the defendant's proofs, if that verdict were in favor of the defendant. This has never been done or proposed; if it were suggested, the. Jury would be likely to say, on most occasions, that they could not form a satisfactory opinion on the effect of the defendant's proofs till they had heard the grievance on which the plaintiff founds his action. In no other case can any practical advantage be suggested as arising from this method of pro- ceeding. Of the disadvantages, that may result from it, one is the strong temptation to a defendant to abuse the privilege. If he well knows that the case can be proved against him, there may be skilful management in confessing it by his plea, and affirming something by way of defence which he knows to be untrue, for the mere purpose of beginning." See 9 Jur. 578 ; 5 Ad. & El. 458, N. S. Ordinarily speaking, the decision of the Judge, at Nisi Prius, on a matter resting in his discretion, is not subject to revision in any other Court. But in Hackman v. Fernie, 5 M. & W. 505, the Court observed, that though they might not interfere in a very doubtful case, yet if the decision of the Judge " were clearly and manifestly wrong,'" they would interfere to sJk it right. In a subsequent case, however, it is said CHAP. III.] THE BURDEN OF PROOF, 109 onus probandi is not technically presented, the Courts adopt the same principles which govern in proceedings at Com- mon Law. Thus, in the probate of a will, as the real ques- tion is, whether there is a valid will or not, the executor is considered as holding the affirmative ; and therefore he opens and closes the case, in whatever state or condition it may be, and whether the question of sanity is, or is not raised.* § 78. To this general rule, that the burden of proof is on the party holding the affirmative, there are some exceptions, in which the proposition, though negative in its terms, must •be proved by the party who states it. One class of these ex- ceptions will be found to include those cases, in which the plaintiff g-roMwds his right of action upon a negative allegation, and where, of course, the establishment of this negative is an essential element in his case;^ as, for example, in an action for having prosecuted the plaintiff maliciously and without probable cause. Here, the want of probable cause must be that instead of " were clearly and manifestly wrong," the language actually used by the Court was, "did clear and manifest wrong;" meaning that it was not sufficient to show merely that the wrong party had begun, but that some injustice had been done in consequence. See Edwards w. Matthews, 11 Jur. 398. See also Geach v. Ingall, 9 .Tur. 691 ; 14 M. & W. 95. [In Page V. Osgood, 2 Gray, 260, the question arose, who should have the opening and close to the Jury, the defendant admitting the plaintiff's cause of action, and the only issue being on the defendant's declaration in set-oiF; which demand in set-off the statute provides " shall be tried in like manner as if it had been set forth in an action brought by him," and there being a uniform rule of Court giving the right of opening and closing in all cases to the plaintiff. The Court held that there was no reason for departing from the rule which had been found to be of great practical convenience, and overruled the exceptions, thus sustaining the plaintiff's right in such a case to open and close.] 1 Buckminster v. Perry, 4 Mass. 593 ; Brooks v. Barrett, 7 Pick. 94 ; Comstock V. Hadlyme, 8 Conn. 254 ; Ware b. Ware, 8 Greenl. 42 ; Hubbard V. Hubbard, .6 Mass. 397; [Crowninshield v. Crowninshield, 2 Gray, 524, 528.] 2 1 Chitty on PI. 206 ; Spiers v. Parker, 1 T. R. 141 ; Rex v. Pratten, 6 T. R. 559 ; Holmes v. Love, 3 B. & C. 24^2 ; Lane v. Crombie, 12 Pick. 177; Harvey v. Towers, 15 Jur. 544 ; 4 Eng. Law & Eq. Rep. 531. VOL. I. 10 110 LAW OF EVIDENCE. [PART II. made out by the plaintiff, by some affirmative proof, though the proposition be negative in its terms.^ So, in an action by husband and wife, on a promissory note made to the wife after marriage, if the defendant denies that she is the merito- rious cause of action, the burden of proving this negative is on him.2 So, in a prosecution for a penalty given by statute, if the statute, in describing the offence, contains negative matter, the count must contain such negative allegation, and it must be supported hj primd facie proof. Such is the case in prosecutions for penalties given by statutes, for coursing deer in inclosed grounds, not having the consent of the owner ;^ or, for cutting trees on lands not the party's own, or, taking other property, not having the consent of the owner ;^. or, for selling, as a peddler, goods not of the produce or man- ufacture of the country ; ^ or, for neglecting to prove a will, without just excuse made and accepted by the Judge of Pro- bate therefor.8 In these, and the like cases, it is obvious, that plenary proof on the part of the affirmant can hardly be expected ; and, therefore, it is considered sufficient if he offer such evidence as, in the absence of counter testimony, would afford ground for presuming that the allegation is trae. Thus, in an action on an agreement to pay £100, if the plaintiff would not send herrings for one year to the London market, and, in particular, to the house of J. & A. Millar, proof that he sent none to that house was held sufficient to entitle him to recover, in the absence of opposing testimony.'' And gener- ally, where a party seeks, from extrinsic circumstances, to give 1 Purcell V. Macnamara, 1 Campb. 199; 9 East, 361, S. C. ; Ulmer «. Leland, 1 Greenl. 134; Gibson v. Waterhouse, 4 Greenl. 226. 2 PliiUiskirk v. Pluckwell, 2 M. & S. 395 ; per Bayley, J. I 3 Rex V. Rogers, 2 Campb. 654 ; Rex v. Jarvis, 1 East, 643, note. i Little V. Thompson, 2 Greenl. 128 ; Rex v. Hazy & al. 2 C. & P. 458. 5 Commonwealth v. Samuel, 2 Pick. 103. 6 Smith V. Moore, 6 Greenl. 274. See other examples in Commonwealth V. Maxwell, 2 Pick. 139 ; 1 East, P. C. 166, § 15 ; Williams v. Hinghara and Quincy Turnpike Co. 4 Pick. 341 ; Rex v. Stone, 1 East, 637 ; Rex v. Bur- ditt, 4 B. & Aid. 95, 140 ; Rex v. Turner, 5 M. & S. 206 ; Woodbury D. Frink, 14 111. 279. ' Calder v. Rutherford, 3 B. & B. 302 ; 7 Moore, 158, S. C. CHAP. III.] THE BURDEN OF PROOF. Ill effect to an instrument which, on its face, it would not have, it is incumbent on him to prove those circumstances, though involving the proof of a negative; for, in the absence of extrinsic proof, the instrument must have its natural opera- tion, and no other. Therefore, where real estate was devised for life with power of appointment by will, and the devisee made his wiU, devising all his lands, but without mention of or reference to the power, it was held no execution of the power, unless it should appear that he had no other lands <; and that the burden of showing this negative was upon the party claiming under the will as an appointment.^ § 79. But where the subject-matter of a negative averment lies peculiwfly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or criminal prosecutions for a pen- alty for doing an act, which the statutes do not permit to be done by any persons, except those who are duly licensed therefor ; as, for selling liquors, exercising a trade or profes- sion, and the like. Here the party, if licensed, can immedi- ately show it, without the least inconvenience ; whereas, if proof of the negative were required, the inconvenience would be very great.^ 1 Doe V. Johnson, 7 Man. & Gr. 1047. »/2 Rex V. Turner, 5 M. & S. 206 ; Smith ii. Jeffries, 9 Price, 257;"'Sheldon V. Clark, 1 Johns. 513; United States v. Hayward, 2 Gall. 485 ; Gening i>. The State, 1 McCord, 573 ;'' Commonwealth v. Kimball, 7 Met. 304; Har- rison's case, Paley on Con v. 45, n. ; "'Apothecaries' Co. v. Bentley, Ry. & Mood. 159; Haskill a. The Commonwealth, 3 B. Monr. 342; The State v. Morrison, 3 Dev. 299;''The State v. Crowell, 12 Shepl. 171; Shearer v. The State, 7 Blackf. 99. By a statute of Massachusetts, 1844, ch. 102, the burden of proving a license for the sale of liquors, is expressly devolved on the person selling, in all prosecudons for selling liquors without a license. [See also Commonwealth v. Thurlow, 24 Pick. 374, 381, which was an in- dictment against the defendant for presuming to be a retailer of spirituous liquors without a license therefor. In this case the Court did not decide the general question, saying that " cases may be affected by special circum- stances, giving rise to distinctions applicable to them to be considered as they arise," but held under that indictment that the goveriunent must pro- duce prima fade evidence that the defendant was not licensed. See post. 112 LAW OF EVIDENCE. [PART 11. § 80. So, where the negative allegation involves a charge of criminal neglect of duty, whether official or otherwise ; or fraud ; or the wrongful violation of actual lawful possession of property ; the party making the„allegation must prove it; for in these cases the presumption of law, which is always in favor of innocence, and quiet possession, is in favor of the party charged. Thus, in an information against Lord Hali- fax, for refusing to deliver up the rolls of the auditor of the Exchequer, in violation of his duty, the prosecutor was required to prove the negative. So, vi'here one in office was charged with not having taken the sacrament within a year; and where a seaman was charged with having quitted the ship, without the leave in writing, required by statute ; and where a shipper was charged with having shipped goods dangerously combustible on .board the plaintiff's ship, with- out giving notice of their nature to any officer on board, whereby the ship was burned' and lost; in each of these cases, the party alleging the negative was required to prove it.^ So, where the defence to an action on a policy of insur- Vol. 3, § 24 and note. In Commonwealth v. Kimball, 7 Met. 304, tlie Court held, in a similar indictment, that the docket and minutes of the County Commissioners before their records are made up, are competent evidence, and if no license to the defendant appears on such docket or minutes, (the county commissioners being the sole authority to grant licenses,) it is prim& facie evidence that the defendant was not licensed. It has been decided that the provisions of the Massachusetts Act of 1844, ch. 102, do not apply to indictments under the law of 1855, ch. 405, which enacts that all buildings, &c., used for the illegal sale or keeping of intoxi- cating liquors, shall be deemed common nuisances; — an Act of the same year, (Acts 1855, ch. 215,) making any sale or keeping for sale, within the State,' of intoxicating liquors unless in the original packages, &c., without authority, an unlawful and criminal act. This was decided in Common- wealth V. Lahey, S. J. C. Berkshire, Sept T. 1857, not yet reported; — which was an indictment under the Act of 1855, ch. 405, for maintaining a common nuisance in keeping a building used for the illegal sale of intoxi- cating liquors. The Court below ruled that the government need not show , that the defendant was not licensed, but if the defendant relied on a license to sell in his defence, he should show that fact. The Supreme Judicial Court sustained the exceptions to this ruling. See note of the decision in this case in 20 Law Reporter (Oct. 1857,) 352.] 1 United States i-. Hayward, 2 Gall. 498; Hartwell u. Koot, 19 Johns. CHAP. III.] THE BURDEN OF PKOOF. 113 ance was, that the plaintiff improperly concealed from the underwriter certain facts and information which he then already knew and had received, it was held that the defend- ant was bound to give some evidence of the non-communi- cation.i So, where the goods of the plaintiff are seized and taken out of his possession, though for an alleged forfeiture under the revenue laws, the seizure is presumed unlawful until proved otherwise.^ § 81. So, where infancy is alleged ;^ or, where one born in lawful wedlock is alleged to be illegitimate, the parents not being separated by a sentence of divorce ; * or, where inscmity 345 ; Bull. N. P. [298] ; Kex v. Hawkins, 10 East, 211 ; Frpntine v. Frost, 3 B. & P. 302; Williams v. E. India Co. 3 East, 192. See also Common- wealth !!. Stow, 1 Mass. 54 ; Evans v. Birch, 3 Campb. 10. [So in an action against an officer for neglecting to attach property as the property of the plaintiff's debtfcr, the burden of proving that the property was so far the debtor's as to be liable to attachment as his, is upon the plaintiff throughout, although the defendant claims title to himself under a purchase from the debtor. Phelps v. Cutler, 4 Gray, 139.] 1 Elkin V. Janson, 13 M. & W. 655. 2 Aitcheson v. Maddock, Peake's Cas. 162. An exception to this rule is admitted in Chancery, in the case of attorney and client ; it being a rule there, that if the attorney, retaining the connection, contracts with his client, ^he is subject to the burden of proving that no advantage has been taken of the situation of the latter. 1 Story, Eq. Jur. § 311 ; Gibson v. Jeyes, 6 Ves. 278;' Cane v. Ld. Allen, 2 Dow, 289, 294, 299. [So in triespass brought by the owner of land against a railroad corpor.ation, where the plaintiff has shown his title to the land, the entry by the defendants and the construction of their road upon it, the defendants must justify by showing that this laud is covered by the authorized location of their road. Hazen v. Boston & Maine R. R. 2 Gray, 574, 579. Where such land is shown or admitted to be so covered by the location, the burden does not rest on the corpora- tion or its servants, to show that acts done on such land, as cutting down trees, were done for the purposes of the road. Brainard v. Clapp, 10 Cush. 6. So every imprisonment of a man is, prima facie, a trespass ; and in an action to recover damages therefor, if the imprisonment is proved or admitted, the burden of justifying it is on the defendanf. Metcalf, J., in Bassett v. Porter, 10 Cush. 420.] 3 Borthwick v. Carruthers, 1 T. R. 648. 4 Case of the Banbury Peerage, 2 Selw. N. P. (by Wheaton,) 658 ; Mor- ris V. Davies, 3 Car. & P. 513. 10* 114 LAW OP EVIDENCE. [PART H. is alleged ; ^ or, a person once living is alleged to be dead, the presumption of life not being yet vsrorn out by lapse of time ;2 or, where nonfeasance or negligence is alleged, in an action on contract ; ^ or, where the want of a due stamp is alleged, there being faint traces of a stamp of some kind ; * or, where a failure of consideration is set up by the plaintiff, in an action to recover the money paid ;^ or, where the action is founded on a deficiency in the quantity of land sold, and the defendant alleges, in a special plea, that there was no defi- ciency ; ^ the burden of proof is on the party making the allegation, notwithstanding its' negative character. [§ 81 a. In actions upon promissory notes or bills of exchange, if it be shown that they were stolen, or otherwise fraudulently put in circulation, the burden of proof is on the holder to show that he took them in good faith. Munroe v. Cooper, 5 Pick. 412; Worcester Co. Bank ;;. Dorches- ter, &c. Bank, 10 Cush. 488, 491 ; Wyer v. Dorchester, &c. Bank, 11 Cush. 52 ; Bissell v. Morgan, lb. 198 ; Fabens v. Tirrell, 15 Law Reporter, (May, 1852,) 44 ; Perrin ». Noyes, 39 Maine, 384 ; Goodman v. Harvey, 4 Ad. & El. 870 ; Arbourn v. Anderson, 1 Ad. & El. N. R. 504. According to recent pecisions that burden is very light. Worcester Co. Bank v. Dorchester, &c. Bank ; Wyer v. Dorchester, &o. Bank, uhi supra. But where the action is by the bolder of a bank-bill, and the defendant proves it to have been stolen, the plaintiff is not bound to show how he came by the bill, to enable 1 Attorney-Gen. v. Parnther, 3 Bro. C. C. 441, 443, per Lord Thurlow; cited with approbation in White v. Wilson, 13 Ves. 87, 88 ; Hoge v. Fisher, 1 Pet. C. C. E. 163. 8 Thrograorton v. Walton, 2 Roll. R. 461 ; Wilson v. Hodges, 2 East, 313; Supra, § 41. 3 Crowley v. Page, 7 C. P. 790 ; Smith v. Davies, Id. 307 ; Clarke v. Spence, 10 Watts, B. 335 ; Story on Bailm. §§ 454, 457, note (3d edit.) ; Brind v. Dale, 8 C. & P. 207. See further, as to the right to begin, and of course, the burden of proof, Pontifex v. Jolly, 9 C. & P. 202; Harnett v. Johnson, Id. 206 ; Aston v. Perkes, Id. 231 ; Osborn v. Thompson, Id. 33?; Bingham i>. Stanley, Id. 374; Lambert v. Hale, Id. 506 ; Lees r. Hoffstadt, Id. 699 ; Chapman v. Emden, Id. 712 ; Doe v. Rowlands, Id. 734 ; Ridgway V. Ewbank, 2 M. & Rob. 217 ; Hudson t. Brown, 8 C. & P. 774 ; Soward V. Leggatt, 7 C. & P. 613 ; Bowles ». Neale, Id. 262; Richardson v. Fell, 4 Dowl. 1 ; Silk v. Humphrey, 7 C. & P. 14. * Doe V. Coombes, 3 Ad. & El. N. S. 687. 5 Treat v. Orono, 13 Shepl. 217. 6 McCrea v. Marshall, 1 Louis. An. R. 29. CHAP. III.] THE BURDEN OP PROOF. 115 him to recover upon it, but the defendants, to defeat the plaintiff's right to recover upon it, must show that he received it under such circumstances as to prevent the maintenance of liis action. Wyer v. Dorchester, &c. Bank, uM supra; Solomons v. Bank of England, 13 East, 135, note; De la Chau- mette v. Bank of England, 2 Barn. & Adolph. 385. § 81 6. It would seem to be the true rule in criminal cases, though there are some decisioiis to the contrary, that the burden of proof never shifts, but that it is upon the government throughout ; and that in all cases, before a conviction can be had, the Jury must be satisfied, upon all the evidence, beyond a reasonable doubt, of the affirmative of the issue presented by the government, to wit, that the defendant is guilty in manner and form as charged in the indictment. The opinion of the Court, by Bigelow, J., in the case of Commonwealth v. McKie', 1 Gray, 61-65, contains an acceptable exposition of the general rule of law as to the burden of proof in criminal cases. This was an indictment for an assault and battery with a dangerous weapon upon one Eaton. The defendant contended that he was justified in what he did on account of the provocation he had received from Eaton, and asked the Court below to instruct the Jury, " that if, on all the evidence, they were satisfied of the beating, but were left in reasonable doubt whether the beating was justifiable or not, they should acquit the prisoner. But the Court instructed the Jury that the burden of proof was on the government to satisfy the Jury that the defendant did strike Eaton with a dangerous weapon, in the manner alleged in the indictment, and that if the govern- ment failed in this, they should acquit the prisoner; but that if this was proved beyond a reasonable doubt, the burden was then on the defendant, to satisfy the Jury of the justification, to wit, the spitting in the face of the defendant, which was the only justification contended for or relied upon, and if the Jury were not satisfied of the fact relied upon for a justification, but were satisfied that the government had made out the allegations in the indictment, their verdict must be against the defendant." Bigelow, J., in giving the opinion of the Court, after remarking upon the insufficiency of the! justification, as it appeared from the reported facts, said, ■' The gen- eral rule as to the burden of proof in criminal cases is sufficiently familiar. It requires the government to prove beyond a reasonable doubt the offence charged in the indictment, and if the proof fails to establish any of the essential elements necessary to constitute a crime, the defendant is entitled to an acquittal. This results, not only from the well-established principle, that the presumption of innocence is to stand until it is overcome by proof, but also from the form of the issue in all criminal cases tried on the merits, which, being always a general denial of the crime charged, necessarily im- poses on the government the burden of .showing affirmatively the existence of every material fact or ingredient, which the law requires in order to constitute an offence. If the act charged is justifiable or excusable, no crim- inal act has been committed, and the allegations in the indictment are not proved. And this makes a broad distinction in the application of the rule of the burden of proof to civil and criminal cases. In the former, matters 116 LAW OF EVIDENCE. [PART II, of justification or excuse must be specially pleaded in order to be shown in evidence, and the defendant is therefore, by the form of his plea, obliged to aver an affirmative, and thereby to assume the burden of establishing it by proof; while in the latter, all such matters are open under the general issue, and the affirmative, namely, proof of the crime charged, remains in all stages of the case upon the government. " In the application of these familiar principles to particular cases, many nice distinctions have arisen, which it is unnecessary now to consider; be- cause we are all of opinion that the case at bar falls clearly within the general rule. However the rule may be in cases where the defendant sets up, in answer to a criminal charge, some separate, distinct, and independent fact or series of facts, not immediately connected with and growing out of the transaction on which the criminal charge is founded, there can be no doubt that in a case like the present the burden of proof remains on the government throughout, to satisfy the Jury of the guilt of the defendant. It appears by the evidence, as stated in the bill of exceptions, that the justi- fication, upon which the defendant relied, was disclosed partly by the testi- mony introduced by the government, and in part by evidence offered by the defendant ; and that it related to and grew out of the transaction, or res gesta, which constituted the alleged criminal act. The defendant did not set up any distinct, independent fact in defence of the charge ; he neither alleged, nor ^assumed to prove, anything aside or out of the case on the part of the government ; but he contended, taking the facts and circumstan- ces, as proved by the evidence on both sides, constituting the transaction itself on which the case for the prosecution rested, that he was not shown to be guilty, because they did not prove, beyond a reasonable doubt, that he had committed the offence laid to his charge. An assault and battery con- sists in the unlawful and unjustifiable use of force and violence upon the person of another, however slight. If justifiable, it is not an assault and battery. 1 Hawk. c. 62, § 2 ; 1 Russ. on Crimes, (7th Amer. ed.) 750; 3 Bl. Com. 121 ; Bac. Ab. Assault and Battery, B; 5 Dane's Ab. 584; Commonwealth v. Clark, 2 Met. 24. " Whether the act, in any particular case, is an assault and battery, or a gentle imposition of hands, or a proper application of force, depends upon the question wliether there was justifiable cause. 2 Met. 25. If therefore the evidence fails to show the act to have been unjustifiable, or leaves that question in doubt, the criminal act is not proved, and the party charged is entitled to an acquittal. To illustrate this ; it is clearly settled, that when an injury to the person is accidental, and the party defendant is without fault, it will not amount to an assault and battery. Rose. Crim. Ev. 289. Now in a case of this sort, if the evidence offered by the government leaves it doubtful whether the injury was the result of accident or design, there can be no question of the right of the defendant to an acquittal, because it is left doubtful whether any criminal act was committed. But can the government, in such a case, on proving simply the injury to the person, rest their case, and call on the defendant to assume the burden of proof CHAP. III.] THE BURDEN OF PROOF. 117 and satisfy the Jury tliat it was accidental, or else submit to a conviction ? If so, then a criminal charge can always be shown by proving part of a transaction, and the burden of proof can . be shifted upon the defendant, by a careful management of the case on the part of the government, so as to withhold that part of the proof which may bear in his favor. But, further; the rule of the burden of proof cannot be made to depend upon the order of proof, or upon the particular mode in which the evidence in the case is introduced. It can make no difference, in this respect, whether the evi- dence comes from one party or the other. In the case supposed, if it is left in doubt, on the whole evidence, whether the act was the result of accident or design, then the criminal charge is left in doubt. Suppose a case, where all the testimony comes from the side of the prosecution. The defendant has a right to say that upon the proof, so introduced, no case is made against \ him, because there is left in doubt one of the essential elements of the of- fence charged, namely, the wrongful, unjustifiable, uijlawful intent. The same rule must apply where the evidence comes from both sides, but relates solely to the original transaction constituting the alleged criminal act, and forming part of the res gesta. " Even in the case of homicide, where a stricter rule has been held as to the burden of proof than in other criminal eases, upon peculiar reasons applicable to that offence alone, it is conceded that the burden is not shifted by proof of a voluntary killing, where there is excuse or justification appar- ent on the proof offered in support of the prosecution, or arising out of the circumstances attending the homicide. Commonwealth v. York, 9 Met. 116 ; Commonwealth v. Webster, 5 Cush. 305. " There may be cases, where a defendant relies on some distinct, substan- tive ground of defence to a criminal charge, not necessarily eonnected with ■ the transaction on which the indictment is founded, (such as insanity, for instance,) in which the burden of proof is shifted upon the defendant. But in cases like the present, (and we do not intend to express an opinion beyond the precise case before us,) where the defendant sets up no separate independent fact in answer to a criminal charge, but confines his defence* to the original transaction charged as criminal, with its accompanying cipl cumstances, the burden of proof does not change, but remains upon thea government to satisfy the Jury that the act was unjustifiable and unlawful."! § 81 u. Although the above decision is carefully limited to that precise case, yet it would seem that its principle would cover all cases, including those in which the defendant relies on some distinct substantive ground of defence not necessarily connected with the transaction on which the indictment is founded, as insanity for instance. For in every case the issue which the government presents, is the guilt of the defendant, and to prove this the Jury must be satisfied not only that the defendant committed the act consti- tuting the corpus delicti, but also that at the time of the commission thereof, he had intelligence and capacity enough to have a criminal intent and pur- pose ; because, " if his reason and mental powers are either so deficient that he has no will, no conscience or controlling mental power, or if, through the 118 LAW OF KTIDBNCE. [PAET H. overwhelming violence of mental disease, his intellectual power' is for the time obliterated, he is not "a responsible moral agent, and is not punishable for criminal acts." By Shaw, C. J., in Commonwealth u. Rogers, 7 Met. 501 ; see Commonwealth v. Hawkins, 3 Gray, 465 ; 1 Bennett & Heard's Lead. Crim. Cases, 87, note to Commonwealth v. Rogers, and p. 347, note to Commonwealth v. McKie. And if the burden is on the government thus ito satisfy the Jury, it is difficult to see why the rule of proof beyond a rea- fSonable doubt does not apply ; and why a reasonable doubt of the sanity of the defendant should not require the Jury to acquit. In the more recent case of Commonwealth v. Eddy, 19 Law Reporter, (March, 1857,) 615, which was an indictment against the defendant for the murder of his wife, and in which the insanity of the defendant was pressed to the Jury as a defence, the Court instructed the Jury in substance that the burden of proof was on the government throughout, and did not shift ; although, so far as the sanity of the defendant was concerned, the burden was sustained by the legal presumption that all men are sane, which pre- sumption must stand until rebutted by proof to the contrary, satisfactory to the Jury. Metcalf, J., in giving the case to the Jury, said, " The burden.of proof is on the government throughout to prove every essential ingredient of the crime. They must therefore prove that the offence has been com- mitted by a reasonable creature. But there is a legal presumption that all men are sane ; and when the fact that the act was committed is proved, the burden is sustained by the legal presumption which stands till rebutted by proof to the contrary, satisfactory to the Jury. It is not to say that the burden of proof changes. But it is sustained by the legal presumption until this presumption is rebutted. In order to overcome this presumption, and to shield the prisoner from responsibility, it must be proved to the satisfacr tion of the Jury, by a preponderance of the whole evidence in the case that at the time of the commission of the act, the mind of the accused was dis- eased and unsound, and that the disease existed to so high a degree, that for the time being it overwhelmed the reason, conscience, and judgment, and that the prisoner in committing the homicide acted from an irresistible and uncontrollable impulse." OHAP, IT.] THE BEST EVIDENCE. 119 CHAPTER IV. OF THE BEST EVIDENCE. § 82. A FOURTH RULE, which governs in the production of evidence, is that which requires the best evidence of which the case in its nature is susteptible. This rule does not demand the greatest amount of evidence, which can possibly be given of any fact ; but its design is to prevent the introduction of any, which, from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud ; for when it is apparent that better evidence is withheld, it is fair to presume that the party had some sinister motive for not producing it, and that, if offered, his design would be frustrated.^ The rule thus becomes essential to the pure administration of justice. In requiring the production of the best evidence applicable to each par- ticular fact, it is meant, that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. The rule excludes only that evidence, which itself indicates the existence of more original sources of information. But where there is no substitution of evidence, but only a selection of weaker, instead of stronger proofs, or an omission to supply all the proofs capa- ble of being produced, the rule is not infringed.^ Thus, a title by deed must be proved by the production of the deed itself, if it is within the power of the party ; for this is the 1 Falsi prsesumptio est contra eum, qui testibus probare conatur id quod instrumentis probare potest. Menoch. Consil. 422, n. 125. 2 Phil. & Am. on Evid. 438; 1 Phil. Evid. 418; 1 Stark. Evid. 437; Glassford on Evid. 266-278; Tayloe v. Riggs, 1 Peters, 591, 596; United States V. Eeyburn. 6 Peters, 352, 367; Minor ti. Tillotson, 7 Peters, 100, 101. 120 LAW OF EVIDENCE. • [PAKT 11, best evidence of which the case is susceptible ; and its non- production virould raise a presumption, that it contained some matter of apparent defeasance. But, being produced, the execution of the deed itself may be proved by only one of the subscribing witnesses, though the other also is at hand. And even the previous examination of a deceased subscribing witness, if admissible on other grounds, may supersede the necessity of calling the survivor.^ So, in proof ' or disproof of handwriting, it is not necessary to call the supposed writer himself.^ And even where it is necessary to prove negatively, that an act was done without the consent, or against the will of another, it is not, in general, necessary to call the person whose will or consent is denied.^ § 83. All rules of evidence, however, are adopted for prac- tical purposes in the administration of justice ; and must be so applied as to promote the ends for which they were designed. Thus, the rule under consideration is subject to exceptions, where the general convenience requires it. Proof, for example, that aa individual has acted notoriously as a public officer, is primd facie evidence of his official charac- ter, without producing his commission or appointment.* 1 Wright V. Tatham, 1 Ad. & El. 3. [See infra, § 569-575.] a Hughes's case, 2 East, P. C. 1002; MeGuire's case, lb.; Rex v. Benson, 2 Cainpb. 508. 3 Supra, § 77 ; Rex v. Hazy & Collins, 2 C. & P. 458. * United States !>. Reyburn, 6 Peters, 352, 367 ; Rex v. Gordon, 2 Leach, Cr. C. 581, 585, 586 ; Rex v. Shelley, Id. 381, n. ; Jacob v. United States, 1 Brockenb. 520; Milnor v. TiUotson, 7 Peters, 100, 101; Berryman v. Wise, 4 T. R. 366; Bank of U. States v. Dandridge, 12 Wheat. 70;" Doe ». Brawn, 5 B. & A. 243 ; Cannell v. Curtis, 2 Bing. N. C. 228, 234 ; Rex v. Verelst, 3 Campb. 432; Rex u. Howard, 1 M. & Rob. 187; McGahey v. Alston, 2 M. & W: 206, 211 ; Regina v. Vickery, 12 Ad. & El. 478, N. S. ; Infra, § 92. But there must be some color of right to the office, or an acquiescence on the part of the public for such length of time as will author- ize the presumption of at least a colorable election or appointment. Wilcox V. Smith, 5 Wend. "231, 234. This rule is applied only to public offices. Where the office is private, some proof must be offered of its existence, and of the appointment of the agent or incumbent. Short v. Lee, 1 Jac. & W. 464, 468. [Where a note was indorsed by a person as president of an in- corporated insurance company, the indorsee may prove by parol that he CHAP. IV.] THE BEST EVIDENCE. 121 § 84. This rule naturally leads to the division of evidence into Primary and Secondary. Primary evidence is that which we have just mentioned as the best evidence, or that kind of proof which, under any possible circumstances, affords the greatest certainty of the fact in question ; and it is illustrated by the case of a written document ; the instru- ment itself being always regarded as the primary or best possible evidence of its existence and contents. If the exe- cution of an instrument is to be proved, the primary evidence is the testimony of the subscribing witness, if there be one. Until it is shown that the production of the primary evi- dence is out of the party's power, no other proof of the fact is in general admitted.^ All evidence falling short of this in its degree, is termed secondary. The question, whether evi- dence is primary or secondary, has reference to the nature of the case in the abstract, and not to the peculiar circum- stances under which the party in the particular cause on trial, may be placed. It is a distinction of law, and not of fact ; referring only to the quality, and not to the strength of the proof. Evidence which carries on its face no indication that better remains behind, is not secondary, but primary. And though all information must, be traced to its source, if possible, yet if there are several distinct sources of informa- tion of the same fact, it is not ordinarily necessary to show that they have all been exhausted, before secondary evidence can be resorted to.^ acted as president, and need not produce the records of the company to show his election. Cabot v. Given, 45 Maine, 144.] 1 Sebree v. Dorr, 9 Wheat. 558, 563 ; Hart v. Yunt, 1 Watts, 253. 2 Cutbush V. Gilbert, 4 S. & R. 555 ; United States u. Gilbert, 2 Sumn. 19, 80, 81 ; Phil. & Am. on Evid. 440, 441 ; 1 Phil. Evid. 421. Whether the law recognizes any degrees in the various kinds of secondary evidence and requires the party offering that which is deemed less certain and satis- factory first to show that nothing better is in his power, is a question which is not yet perfectly settled. On the one hand, the affirmative is urged 'as an equitable extension of the principle which postpones all secondary evi- dence, until the absence of the primary is accounted for ; and it is said that the same reason which requires the production of a writing, if within the power of the party, also requires that, if the writing is lost, its contents VOL. I. 11 122 LAW OF BVIDENCK. [PAET n. t § 85. The cases which most frequently call for the appli- cation of the rule now under consideration, are those which sliall be proved by a copy, if in existence, rather than by the memory of a witness, who has read it; and that the secondary proof of a lost deed ought to be marshalled into, first the counterpart ; secondly, a copy ; thirdly, the abstract, &o. ; and, last of all, the memory of a witness. Ludlam, ex dem. Hunt, Lofft, K. 362. On the other hand, it is said that this argument for the extensicm of the rule confounds all distinction between the' weight of evidence and its legal admissibility ; that the rule is founded upon the nature of the evidence offered, and not upon its strength or weakness; and that, to carry it to the length of establishing degrees in secondary evidence, as fixed rules of law, would often tend to the subversion of justice, and always be productive of inconvenience. If, for example, proof of the exist- ence of an abstract of a deed will exclude oral evidence of its contents, this proof may be withheld by the adverse party until the moment of trial, and the other side be defeated, or the cause be greatly delayed ; and the same mischief may be repeated, through all the different degrees of the evidence. It is therefore insisted, that the rule of exclusion ought to be restricted to I such evidence only, as, upon its face, discloses the existence of better proof; and that, where the evidence is not of this nature, it is to be received, not- withstanding it may be shown from other sources that the party might have offered that which was more satisfactory ; leaving the weight of the evidence to be judged of by the Jury, under all the circumstances of the case. See 4 Monthly Law Mag. 265-279. Among the cases cited in support of the affirmative side of the question, there is no one in which this particular point appears to have been expressly adjudged, though in several of them, as in Sir E. Seymour's case, 10 Mod. 8 ; Villiers v. Villiers, 2 Atk. 71 ; Row- landson v. Wainwright, 1 Nev. & Per. 8 ; and others, it has been passingly adverted to as a familiar doctrine of the law. On the other hand, the exist- ence of any degrees in secondary evidence was doubted by Patterson, J., in Rowlandson v. Wainwright ; tacitly denied by the same Judge, in Coyle v. Cole, 6 C. & P. 359, and by Parke, J., in Rex v. Fursey, C. & P. 81 ; and by the Court, in Rex v. Hunt et al. 3 B. & Aid. 506 ; and expressly denied by Parke, J., in Brown v. Woodman, 6 C. & P. 206. See also Hall v. Ball, 8 Scott, N. R. 577. And in the more recent case of Doe d. Gilbert v. Ross, in the Exchequer, where proper notice to produce an original document had been given without success, it was held, that the party giving the notice was not afterwards restricted as to the nature of the secondary evidence he would produce of the contents of the document ; and, therefore, having j offered an attested copy of the deed in that case, which was inadmissible in I itself for want of a stamp, it was held, that it was competent for hin\ to aban- ! don that mode of proof, and to resort to parol testimony, there being no 1 degrees in secondary evidence ; for when once the original is accounted for, any secondary evidence whatever may be resorted to by the party seeking to use the same. See Doe v. Ross, 8 Dowl. 389; 7 M. & W. 102, S. C.; CHAP. IV.] THE BEST EVIDENCE. 12S relate to the substitution of oral for written evidence ; and they may be arranged into three classes : including in the Doe !). Jack, 1 Allen, 476, 483. The American doctrine, as deduced from various authorities, seems to be this ; that if, from the nature of the case itself, it is manifest that a more satisfactory kind of secondary evidence ' exists, the party will be required to produce it ; but that, where the nature of the case does not of itself disclose the existence of such better evidence, the objector must not only prove its existence, but also must prove that it j was known to the other party in season to have been produced at the trial. | Thus, where the record of a conviction was destroyed, oral proof of its exist- ence was rejected, because the law required a transcript to be sent to the Court of Exchequer, which was better evidence. Hilts v. Colvin, 14 Johns. 182. So, a gi-ant of letters of administration was presumed after proof, from the records of various Courts, of the administrator's recognition there, and his acts in that capacity. Battles v. HoUey, 6 Greenl. 145. And where the record books were burnt and mutilated, or lost, the clerk's docket and the journals of the Judges have been deemed the next best evidence of the con- tents of the record. Cook v. Wood, 1 McCord, 139 ; Lyons v. Gregory, 3 Hen. & Munf 237; Lowry i>. Cady, 4 Vermont, 504; Doe v. Greenlee, 3 Hawks, 281. In all these and the like cases, the nature of the fact to be proved plainly discloses the existence of some evidence in writing, of an official character, more satisfactory than mere oral proof; and therefore the production of such evidence is demanded. Such, also, is the view taken by Ch. B. Gilbert. See Gilb. Evid. by LofFt, p. 5. See also Collins v. Maule, 8 C. & P. 502: Everingham v. Roundell, 2 M. & Rob. 138; Harvey v. Thomas, 10 Watts, 63. But where there is no ground for legal presump- tion that better secondary evidence exists, any proof is received, which is not inadmissible by other rules of law; unless the objecting party can show that better evidence was previously known to the other, and might have been produced ; thus subjecting him, by positive proof, to the same ifnputa- tion of fraud which the law itself presumes, when primary evidence is with- held. Thus, wtere a notarial copy was called for, as the best evidence of the contents of a lost note, the Court held, that it was sufficient for the party to prove the note by the best evidence actually in his power ; and that to require a notarial copy, would be to demand that, of the existence pi which there was no evidence, and which the law would not presume was in the power of the party, it not being necessary that a promissory note should be protested. Kenner v. The Bank of Columbia, 9 Wheat. 582, 587 ; Denn v. McAllister, 2 Halst. 46, 53 ; United States v. Britton, 2 Mason, 464, 468. But where it was proved that a copy existed of a note, he was held bound to prove it by the copy. 2 Mason, 468. But if the party has voluntarily de- stroyed the instrument, he is not allowed to prove its contents by secondary evidence, until he has repelled every inference of a fraudulent design in its destruction. Blade v. Noland, 12 Wend. 173. So, where the subscribing witness to a deed is dead, and his handwriting cannot be proved, the next 124 LAW OF EVIDENCE. [PART II. first class those instruments which the law requires should be in writing ; — in the second, those contracts which the parties have put in writing; — and in the third, all other writings, the existence of which is disputed, and which are material to the issue. § 86. In the first place, oral evidence cannot be substituted for any instrument which the law requires to be in writing ; such as records, public documents, official examinations, deeds of conveyance of lands, wills, other than nuncupative, promises to pay the debt of another, and other writings men- *'tioned in the Statute of Frauds. In all these cases, the law having required that the evidence of the transaction should be in writing, no other proof can be substituted for that, as , long as the writing exists, and is in the power of the party. And where oaths are required to be taken in open Court, where a record of the oath is made, or before a particular officer, whose duty it is to certify it ; or where an appoint- ment to an additional office is required to be made and certi- fied on the back of the party's former commission ; the writ- ten evidence must be produced.^ Even the admission of the fact, by a party, unless solemnly made, as a substitute for best evidence is proof of tlie handwriting of the grantor, and this is therefore- required. Clark V. Courtney, 5 Peters, 319. But in New York, proof of the handwriting of the witness himself is next demanded. Jackson v. Waldron, 13 Wend. 178. See infra, § 575. But where a deed was lost, the party claiming under it was not held bound to call the subscribing witnesses, un- less it could be shown that he previously knew who they were. Jackson v. Vail, 7 Wend. 125. So it was ruled by Lord Kenyon, in Keeling v. Ball, Peake's Evid. App. Ixxviii. In Gillies v. Smither, 2 Stark. R. 528, this point does not seem to have been considered ; but the case turned on the state of the pleadings, and the want of any proof whatever, that the bond in ques- tion was ever executed by the intestate. 1 Rex V. Hube, Peake's Cas. 132 ; Bassett v. Marshall, 9 Mass. 312 ; Tripp V. Garey, 7 Greenl. 266 ; 2 Stark. Evid. 570, 571 ; Dole v. Allen, 4 Greenl. 527. [In an action against the selectmen of a town for refusing to receive the vote of the plaintiff, an inhabitant of the town, parol evidence that the plaintilF's name was on the voting list used at the election, is inadmissible without first giving notice to produce the list, such list being an official docu- ment. Harris v. Whitcomb, 4 Gray, 433.] CHAP. IV.] THE BEST EVIDENCE. 125 other proof,^ does not supersede direct proof of matter of record by which it is sought to affect him ; for the record, being produced, may be found irregular and void, and the party might be mistaken.^ Where, however, the record or document appointed by law, "is not part of the fact to be proved, but is merely a collateral or subsequent memorial of the fact, such as the registry of marriages and births, and the like, it has not this exclusive character, but any other legal proof is admitted.^ ^ § 87. In the second place, oral proof cannot be substituted for the written evidence of amy contract which the ■parties have put in writing. Here, the written instrument may be re- garded, in some measure, as the ultimate fact to be proved, especially in the cases of negotiable securities ; and in all cases of written contracts, the writing is tacitly agreed upon, by the parties themselves, as the only repository and the ap- propriate evidence of their agreement. The written contract is not collateral, but is of the very essence of the transaction.* 1 See su'pra, § 27 ; Infra, §§ 169, 170, 186, 204, 205. 2 Scott V. Clare, 3 Campb. 236 ; Jenner v. Jplliffe, 6 Johns. 9 ; Welland Canal Co. v. Hathaway, 8 Wend. 480; 1 Leach, Cr. C. 349; 2 Id. 625, 635. 3 Commonwealth «. Norcross, 9 Mass. 492; Ellis v. Ellis, 11 Mass. 92; Owings V. Wyant, 3 H. & McH. 393 ; 2 Stark. Evid. 571 ; Kex v. Allison, K. & K. 109 ; Read v. Passer, Peake's Cas. 231. [So, where a grantee at the time of receiving a deed of land, agreed by parol that the grantor might' continue to exercise a right of way over the land, the evidence was held ad- missible, not because a right of way can be created by a parol grant, but to show that the grantor's subsequent possession of such easement commenced under a claim of right. Ashley ». Ashley, 4 Gray, 19 9. J * The principles on which a writing is deemed part of the essence of any transaction, and consequently the best or primary proof of it, are thus ex- plained by Domat : " The force of written proof consists in this ; men agree to preserve by writing the remembrance of past events, of which they wish to create a memorial, either with the view of laying down a rule for their own guidance, or in order to have, in the instrumeiit, a lasting proof of the truth of what is written. Thus contracts are written, in order to preserve the memorial of what the contracting parties have prescribed for each other to do, and to make for themselves a fixed and immutable law, as to what has been agreed on. So, testaments are written, in order to preserve the remem- 11* ' 126 LAW OF EVIDENCE. [PART II. If, for example, an action is brought for use and occupation of real estate, and it appears by the plaintiff's own showing that there was a written contract of tenancy, he must pro- duce it, or account for its absence ; though, if he were to make out a primd facie case, without any appearance of a written contract, the burden of producing it, or at least of proving its existence, would be devolved on the defendant.^ -)t But if the fact of the occupation of land is alone in issue without respect to the terms of the tenancy, this fact may be proved by any competent oral testimony, such as payment of rent, or declarations of the tenant, notwithstanding it ap- pears that the occupancy was under an agreement in writing ; for here the writing is only collateral to the fact in question.^ The same rule applies to every other species of written con- tract. Thus, where in a suit for the price of labor performed, it appears that the work was commenced under an agree- ment in writing, the agreement must be produced ; and even if the claim be for extra work, the plaintiff must still produce the written agreement ; for it may furnish evidence, not only that the work was over and beyond the original contract, but also of the rate at which it was to be paid for. -So, in an indictment for feloniously setting fire to a house, to defraud the insurers, the policy itself is the appropriate evidence of the fact of insurance, and must be produced.^ And the re- brance of what the party, who has a right to dispose of his property, has ordained concerning it, and thereby lay down a rule for the guidance of his heir and legatees. On the same principle are reduced into writing all sen- tences, judgments, edicts, ordonnances, and other matters, which either con- fer title, or have the force of law. The writing preserves, unchanged, the matters intrusted to it, and expresses the intention of the parties by their own testimony. The truth of written acts is established by the acts them- selves, that is, by the inspection of the originals." See Domat's Civil Law, Liv. 3, tit, 6, § 2, as translated in 7 Monthly Law Mag. p. 73. 1 Brewer «. Palmer, 3 Esp. 213 ; confirmed in Ramsbottom r. Tunbridge, 2 M. & S. 434 ; Rex v. Rawden, 8 B. & C. 708 ; Strother v. Barr, 5 Bing. 186, per Park, J. 2 Rex V. Inhabitants of Holy Trinity, 7 B. & C. 611; Doe a. Harvey, 8 Bing. 239, 241; Spiers v. WUlison, 4 Cranch, 398; Dennet v. Crocker, 8 Greenl. 239, 244. 3 Rex V. Doran, 1 Esp. 127 ; Rex v. Gilson, Russ. & Ry. 138. CHAP. IV.] THE BEST EVtDBNCB. 12T corded resolution of a charitable society, under which the plaintiff earned the salary sued for, was on the same prin- ciple held indispensably necessary to be produced.^ The fact, that in such cases the writing is in the possession of the adverse party, does not change its character ; it is still the primary evidence of the contract ; and its absence must be accounted for, by notice to the other party to produce it, or in some other legal mode, before secondary evidence of its contents can be received.^ § 88. In the third place, oral evidence cannot be substi- tuted for any writing, the existence of which is disputed, and which is material either to the issue between the parties, or to the credit of witnesses, and is not merely the memorandum of some other fact. For, by applying the rule to such cases, the Court acquires a knowledge of the whole contents of the instrument, which ma^ have a different effect from the state- ment of a part.^ " I have always," said Lord Tenterden, " acted most strictly on the rule, that what is in writing, shall only be proved 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 be so easily mistaken, that I think the purposes of justice require the strict enforcement of the rule." * Thus, it is not allowed, on cross-examination, in the statement of a question to a witness, to represent the con- tents of a letter, and to ask the witness whether he wrote a letter to any person with such contents, or contents to the like effect ; without having first shown the letter to the wit- 1 Whitford V. Tutin et al. 10 Bing. 395 ; Molton v. Harris, 2 Esp. 549. a See further, Rex v. Rawden, 8 B. & C. 708 ; Sebree v. Dorr, 9 Wheat. 558; Bullock v. Koon, 9 Cowen, 30; Mather v. Goddard, 7 Conn. 304; Rank v. Shewey, 4 Watts, 218 ; Northrup v. Jackson, 13 Wend. 86 ; Vinal V. Burrill, 16 Pick. 401, 407, 408 ; Lanauze v. Palmer, ] M. & M. 31-. 3 So held by all the Judges in the Queen's case, 2 Brod. & Bing. 287. See also. Phil. & Am. on Evid. 441 ; 1 Phil. Evid. 422. 4 Vincent v. Cole, 1 M. & M. 258. 128 LAW OF EVIDENCE. [PART 11. ness, and having asked him whether he wrote that letter, because, if it were otherwise, the cross-examining counsel might put the Court in possession of only a part of the con- tents of a paper, when a knowledge of the whole was essen- tial to a right judgment in the cause. If the witness acknowl- edges the writing of the letter, yet he cannot be questioned as to its contents, but the letter itself must be read.^ And if a witness being examined in a foreign country, upon inter- rogatories sent out with a commission for that purpose, should in one of his answers state the contents of a letter which is not produced ; that part of the deposition will be suppressed, notwithstanding, he being out of the jurisdiction, there may be no means of compelling him to produce the letter.2 § 89. In cases, however, where the written communica- tion or agreement between the parties is collateral to the question in issue, it need not be produced ; as, where the writing is a mere proposal, which has not been acted upon ;^ or, where a written memorandum was made of the terms of the contract, which was read in the presence of the parties, but never signed, or proposed to be signed ; * or, where, during an employment under a written contract, a separate verbal order is given ; ^ or, where the action is not directly upon the agreement, for non-performance of it, but is in tort, for the conversion or detention of the document itself; ^ or, where the action is for the plaintiff's share of money had and 1 The Queen's case, 2 B. & B. 287 ; Infra, § 463. 2 Steinkeller v. Newton, 9 C. & P. 313. 3 Ingram v. Lea, 2 Campb. 521 ; Eamsbottom v. Tunbridge, 2 M. & S. 434 ; Stephens v. Pinney, 8 Taunt. 327 ; Doe v. Cartwright, 3 B. & A. 326 ; Wilson V. Bowie, 1 C. & P. 8 ; Hawkins v. Warre, 3 B. & C. 690. 4 Truwhitt V. Lambert, 10 Ad. & EI. 470. 5 Reid V. Battle, M. & M. 413. 6 JoUey V. Taylor, 1 Campb. 143 ; Scott v. Jones, 8 Taunt. 865 ; How v. Hall, 14 East, 274 ; Bucher v. Jarratt, 3 B. & P. 143 ; Whitehead ». Scott, 1 M. & Rob. 2 ; Ross v. Bruce, 1 Day, 100; The People v. Holbrook, 13 Johns. 90 ; McLean v. Hertzog, 6 S. & R. 154. CHAP. IV.] THE BEST EVIDENCE. 129 received by the defendant, under a written security for a debt due to thena both.^ § 90. But where the writing does not fall within either of the three classes already described, there is no ground for. its excluding oral evidence. As, for example, if a written com- munication be accompanied by a verbal one, to the same effect, the latter may be received as independent evidence, though not to prove the contents of the writing, nor as a substitute for it. Thus, also, the payment of money may be proved by oral testimony, though a receipt be taken ; ^ in trover, a verbal demand of the goods is admissible, though a demand in writing was made at the same time ; '^ the admis- sion of indebtment is provable by oral testimony, though a written promise to pay was simultaneously given, if the paper be inadmissible for want of a stamp.* Such, also, is the case of the examination and confession of a prisoner, taken down in writing by the magistrate, but not signed and certified pursuant to the statutes.^ And any writing inad- missible for the want of a stamp, or other irregularity, may still be used by the witness who wrote it, or was present at the time, as a memorandum to refresh his own memory, from which alone he is supposed to testify, independently of the written paper.^ In like manner, in prosecutions for polit- ical offences, such as treason, conspiracy, and sedition, the inscription on flags and banners paraded in public, and the 1 Bayne v. Stone, 4 Esp. 13. See Tucker v. Welsh, 17 Mass. 165; McFadden v. Kingsbury, U Wend. 667; Southwick v. Stephens, 10' Johns. 443. [Where a writing does not purport to contain the entire contract between parties, additional terms may be shown by parol. Webster v. Hodg- ki'ns, 5 Foster (N. H.) 128.] 2 Rambert v. Cowen, 3 Esp. 213 ; Jacob v. Lindsay, 1 East, 460 ; Doe v. Cartwright, 3 B. & A. 326. 3 Smith V. Young, 4 Campb. 439. 4 Singleton v. Barrett, 2 Or. & Jer. 368. 5 Lambe's case, 2 Leach, 625 ; Rex v. Chappel, 1 M. & Rob. 395, 396, ii. ; 2 Phil. Evid. 81, 82 ; Roscoe's Crim. Evid. 46, 47. 6 Dalison v. Stark, 4 Esp. 163 ; Jacob v. Lindsay, 1 East, 460; Maugham V. Hubbard, 8 B. & C. 14 ; Rex v. Tarrant, 6 C. & P. 182; Rex v. Pressly, Id. 183; Layer's case, 16 Howell's St. Tr. 223; Infra, §§ 228, 436. 130 LAW OF EVIDENCE. [PART II, contents of resolutions read at a public meeting, may be proved as of the nature of speeches, by oral testimony ; ^ and in the case of printed papers, all the impressions are regarded as originals, and are evidence against the person who adopts the printing, by taking away. copies.^ § 91. The rule rejecting secondary evidence is subject to some exceptions; grounded either on public convenience, or on the nature of the facts to be proved. Thus, the contents of any record of a judicial Court, and of entries in any other public books or registers, may be proved by an examined copy. This exception extends to all records and entries of a public nature, in books required by law to be kept ; and is admitted because of the inconvenience to the public which the removal of such documents might occasion, especially if they were wanted in two places at the same time ; and also, because of the public character of the facts they contain, and the consequent facility of detection of any fraud or error in the' copy. ^ § 92. For the same reasons, and from the strong presump- tion arising from the undisturbed exercise of a public office, that the appointment to it is valid, it is not, in general, neces- sary to prove the written appointments of public officers. All who are proved to have acted as such, are presumed to have 1 Rex V. Hunt, 3 B. & A. 566 ; Sheridan & Kirwan's case, 31 Howell's St. Tr. 672. 2 Rex V. Watson, 2 Stark. R. 129, 130. 3 Bull. N. P. 226 ; 1 Stark. Evid. 189, 191. But this exception does not extend to an answer in chancery, where the party is indicted for perjury therein ; for there the original must be produced, in order to identify the party, by proof of his handwriting. The same reason applies to depositions and affidavits. Rex ». Howard, 1 M. &, Rob. 189. [A registry copy of a deed of land is not admissible in evidence against the grantee, without notice to him to produce the original, the original being presumed to be in his possession. Commonwealth v. Emery, 2 Gray, 80. Where the originals are not presumed to be in the possession of either party to the suit, office copies of deeds are admissible. Blanohard v. Young, 11 Cush. 345. See also Palmer «. Stevens, lb. 147.] CHAP. IV.] THE BEST EVIDENCE. 131 been duly appointed to the office, until the contrary ap- pears ; ^ and it is not material . how the question arises, whether in a civil or criminal case, nor whether the officer is or is not a party to the record;^ unless, being plaintiff, he unnecessarily avers his title to the office, or the mode of his appointment ; in which case, as has been already shown, the proof must support the entire allegation.^ These and similar exceptions are also admitted, as not being within the reason of the rule, which calls for primary evidence, namely, the presumption of fraud, arising from its non-production. § 93. A further relaxation of the rule has been admitted, where the evidence is the result of voluminous facts, or of the inspection of many books and papers, the examination of 1 An oflScer de facto is one who exercises an office under color of right, by virtue of some appointment or election, or of such acquiescence of the public as will authorize the presumption, at least, of a colorable appointment or election ; being distinguished, on the one hand, from a mere usurper of office, and on the other from an officer de jure. Wilcox v. Smith, 5 Wend. 231; Plymouth v. Painter, 17 Conn. 585; Burke v. Elliott, 4 Ired. 355. Proof that a person is reported to be and has acted as a public officer, is prima facie evidence, between third persons, of his official character. McCoy V. Curtice,, 9 Wend. 17. And to this end evidence is admissible, not only to show that he exercised the office before or at the period in question, but also, limited to a reasonable time, that he exercised it afterwards. Doe v. Young, 8 Ad. & El. 63, N. S. And see supra, § 83. [Cabot v. Given, 45 Maine, 44.] 2 Rex V. Gordon, 2 Leach's C. C. 581 ; Berryman o. Wise, 4 T. R. 366 ; McGahey v. Alston, 2 Mees. & Welsh. 206, 211 ; Radford v. Mcintosh, 3 T. K. 632 ; Cross v. Kaye, 6 T. R. 663 ; James v. Brawn, 5 B. & A. 243 ; Rex V. Jones, 2 Campb. 131 ; Rex u. Verelst, 3 Campb. 432. A commis- sioner appointed to take affidavits is a public officer, within this exception. Rex V. Howard, 1 M. & Rob. 187. See supra, § 83 ; United States i: Rey- burn, 6 Peters, 35?, 367; Regina v. Newton, 1 Car. & Kir. 369 ; Doe v. Barnes, 10 Jur. 520; 8 Ad. & El. 1037, N. S. ; Plumer v. Briscoe, 12 Jur. 351 ; 11 Ad. & El. 46, N. S. ; Doe v. Young, 8 Ad. & El. 63, N. S. 3 Supra, § 56 ; Cannell v. Curtis, 2 Bing. N. C. 228 ; Moises v. Thornton, 8 T. R. 303 ; The People v. Hopson, 1 Deuio, R. 574. In an action by the sheriff for his poundage, proof that he has acted as sheriff has been held sufficient prima facie evidence that he is so, without proof of his appoint- ment. Bunbury v.. Matthews, 1 Car. & Kir. 380. But in New York it has been held otherwise. The People ti. Hopson, supra. 132 LAW OF EYIDBNCB. [PART II. which could not conveniently take place in Court.^ Thus, if there be one invariable mode in which bills of exchange have been drawn between particular parties, this may be proved by the testimony of a witness conversant with their habit of business, and speaking generally of the fact, without produc- ing the bills. But if the mode of dealing has not been uni- form, the case does not fall within this exception, but is governed by the rule requiring the production of the writ- ings.^ So, also, a witness who has inspected the accounts of the parties, though he may not give evidence of their partic- ular contents, m'ay be allowed to speak to the general bal- ance, without producing the accounts.^ And where the ques- tion is upon the solvency of a party at a particular time, the general result of an examination of his books and securities may be stated in like manner.* § 94. Under this head may be mentioned the case of inscriptions, on walls and fixed tables, mural monuments, gravestones, surveyors^ marks on boundary trees, &c., which, 1 Phil. & Am. on Evid. 454 ; 1 Phil. Evid. 433, 434. The rules of plead- ing have, for a similar reason, been made to yield to public convenience in the administration of justice; and a general allegation is ordinarily allowed, " when the matters to be pleaded tend to infiniteness and multiplicity, where- by the rolls shall be incumbered with the length thereof." Mints v. Bethil, Cro. Eliz. 749 ; Stephens on PI. 359, 360. Courts of Equity admit the same exception in regard to parties to bills, where they are numerous, on the like grounds of convenience. Story on Eq. PL 94, 95, el seq. 2 Spencer v. Billing, 3 Campb. 310. 3 Roberts v. Doxon, Peake's Cas. 83. But not as to particular facts ap- pearing on the books, or deducible from the entries. Dupuy v. Truman, 2 Y. & C. 341. 4 Meyer v. Seftdn, 2 Stark. R. 274. [When books and documents intro- duced in evidence at the trial are multifarious and voluminous, and of such a character as to render it difficult for the Jury to comprehend material facts, without schedules containing abstracts thereof, it is within the discretion of the presiding Judge to admit such schedules, verified by the testimony of the person by whom they were prepared, allowing the adverse party an op- portunity to examine them before the case is submitted to the Jury. Boston & W. R. R. Corp. V. Dana, 1 Gray, 83, 104. See also Holbrook v. Jack- son, 7 Cush. 136.] CHAP. IV.] THE BEST EVIDENCE. 133 as they cannot conveniently be produced in Court, may be proved by secondary evidence.^ § 95. Another exception is made, in the examination of a witness on the voir dire, and in preliminary inquiries of the same nature. If, upon such examination, the witness dis- closes the existence of a written instrument affecting his competency, he may also be interrogated as to its contents. To a case of this kind, the general rule requiring the produc- tion of the instrument, or notice to produce it, does not ap- ply ; for the objecting party may have been ignorant of its existence, until it was disclosed by the witness ; nor could he be supposed to know that such a witness would be produced. So, for the like reason, if the witness, on the voir dire, admits any other fact going to render him incompetent, the effect of which has been subsequently removed by a written docu- ment, or even a record, he may speak to the contents of such writing, without producing it; the rule being that where the objection arises on the voir dire, it may be removed on the voir dire? If, however, the witness produces the writing, it must be read, being the best evidence.^ 1 Doe V. Coyle, 6 C. & P. 360 ; Eex o. Fursey, Id. 81. But if they can coiweniently be brought into Court, their actual production is required. Thus, where it was proposed to show the contents of a printed notice, hung up in the office of the party, who was a carrier, parol evidence of its con- tents was rejected, it not being affixed to the freehold. Jones «. Tarlton, 1 D. P. C. (N. S.) 625. 2 Phil. & Am. on Evid. 149 ; 1 Phil. Evid. 154, 155 ; Butchers' Co. v. Jones, 1 Esp. 160 ; Botham v. Swingler, Id. 164 ; Kex v. Gisburn, 15 East, 57; Carlisle v. Eady, 1 C. & P. 234, note; Miller v. Mariners' Church, 7 Greenl. 51 ; Sewell v. Stubbs, 1 C. & P. 73. 3 Butler 1'. Carver, 2 Stark. K. 433. A distinction has been taken be- tween cases, where the competency appears from the examination of the witness, and those where it is already apparent from the record, without his examination ; and it has been held, that the latter case falls within the rule, and not within the exception, and that the writing which restores the com- petency must be produced. See ace. Goodhay v. Hendry, 1 M. & M. 319, per Best, C. J., and Id. 321, n. per Tindal, C. J. But see Carlisle v. Eady, 1 C. & P. 234, per Parke, J.; Wandless k.^ awthorne, 1 M. & M. 321, n., per Parke, J., contra. See 1 Phil. Evid. 154, 155. VOL. I. 12 134 LAW OF EVIDENCE. [PART II. § 96. It may be proper, in this place, to consider the ques- tion, whether a verbal admission of the contents of a writing, by the party himself, will supersede the necessity of giving notice to produce it ; or, in other words, whether such admis- sion, being made against the party's own interest, can be used as primary evidence of the contents of the writing, , against him and those claiming under him. Upon this ques-/ tion, there appears some discrepancy in the authorities at Nisi Prius?- But it is to be observed, that there is a mate- rial difference between proving the execution of an attested instrument, when produced, and proving the party's admis- sion, that by a written instrument, which is not produced, a certain act was done. In the former case, the law is well settled, as we shall hereafter show, that when an attested instrument is in Court, and its execution is to be proved against a hostile party, an admission on his part, unless made with a view to the trial of that cause, is not sufficient. This rule is founded on reasons peculiar to the class of cases to which it is applied. A distinction is also to be observed between a confessio juris and a confessio facti. If the admission is of the former nature, it falls within the rule already considered, and is not received;^ for the party may not know the legal effect of the instrument, and his ad- mission of its nature and effect may be exceedingly erroneous. But where the existence, and not the formal execution, of a writing is the subject of inquiry, or where the writing is col- lateral to the principal facts, and it is on these facts that the claim is founded, the better opinion seems to be, that the confession of the party, precisely identified, is admissible as 1 Phil. & Am. on Evid. 363, 364 ; 1 Phil. Evid. 346, 847. See the Monthly Law Magazine, Vol. 5, p_. 175-187, where this point is dis- tinctly treated. 3 Supra, § 86 ; Moore v. Hitchcock, 4 Wend. 262, 298, 299 ; Paine v. Tucker, 8 Shepl. 138. [In an action on a written contract, which is put in evidence, the plaintiff cannot introduce the oral declarations of the defend- ant as to his supposed liability ; since if the declarations varied the terms of the written contract, they were.not competent testimony ; if they did not, they were immaterial. Goodell v. Smith, 9 Cush. 592.] CHAP. IV.] -THE BEST EVIDENCE. 135 primary evidence of the facts recited in the writing ; though it is less satisfactory than the writing itself.^ Very great weight ought not to be attached to evidence of what a party has been supposed to -have said ; as it frequently happens, not only that the witness has misunderstood what the party said, but that, by unintentionally altering a few of the ex- pressions really used, he gives an effect to the statement, completely at variance with what the party actually did say.^ Upon this distinction the adjudged cases seem chiefly to turn. Thus, where in an action by the assignees of a bank- rupt, for infringing a patent-right standing in his name, the defendant proposed to prove the oral declaration of the bank- rupt, that by certain deeds an interest in the patent-right had been conveyed by him to a stranger, the evidence was prop- erly rejected ; for it involved an opinion of the party upon the legal effect of the deeds.^ On the other hand; it has been held, that the fact of the tenancy of an estate, or that one person, at a certain time, occupied it as the tenant of a cer- tain other person, may be proved by oral testimony. But if the terms of the contract are in controversy, and they are contained in a writing, the instrument itself must be pro- duced.* § 97. There is a class of cases, which seem t6 be excep- tions to this rule, and to favor the doctrine, that oral declara- tions of a party to an instrument, as to its contents or effect, 1 Howard v. Smith, 3 Scott, N. R. 574; Smith v. Palmer, 6 Cush. 515; [Slatterie v. Pooley, 6 Mees. & Welsh. 664. See infra, § 205.] 8 Per Parke, J., in Earle v. Picken, 5 C. & P. 542, note. See also I Stark. Evid. 35, 36 ; 2 Stark. Evid. 17 ; Infra, §§ 200, 203 ; Ph. & Am. on Evid. 391, 392; 1 Phil. Evid. 372. 3 Bloxam v. Elsee, 1 C. & P. 558 ; Ry. & M. 187, S. C. See, to the same point. Rex v. Hube, Peake's Cas. 132 ; Thomas v. Ansley, 6 Esp. 80 ; SCott V. Clare, 3 Campb. 236; Rex v. Careinion, 8 East, 77; Harrison v. More, Phil. & Am. on Evid. 365, n.; 1 Phil. Evid. 347, n. ; Rex v. Inhabitants of Castle Morton, 3 B. & A. 588. * Brewer v. Palmer, 3 Esp. 213 ; Rex v. Inhabitants of Holy Trinity, 7 B. & C. 611; 1 Man. & Ry. 444, S.,C.; Strother v. Barr, 5 Bing. 136; Ramsbottom v. Tunbridge, 2 M. & S. 434. 136 LAW OF EVIDENCE. • [PAKT H. may be shown as a substitute for direct proof by the writing itself. But these cases stand on a different principle, namely, that where the admission involves the material fact in pais, as well as a matter of law, the latter shall not operate to exclude evidence of the fact from the Jury. It is merely placed in the same predicament with mixed questions of law and fact, which are always left to the Jury, under the advice and in- structions of the Court.i Thus, where the plaintiff, in eject- ment, had verbally declared that he had " sold the lease^^' under which he claimed title, to a stranger, evidence of this declaration was admitted against him.^ It involved the fact of the making of an instrument called an assignment of the lease, and of the delivery of it to the assignee, as well as the legal effect of the writing. So, also, similar proof has been received, that the party was " possessed of a lease- hold,"^ — "held a note,"* — "had dissolved a partner- ship," — which was created by deed,^ — and, that the in- dorser of a dishonored biU of exchange admitted, that it had been " duly protested." ^ What the party has stated in his answer in Chancery, is admissible on other grounds, namely, that it is a solemn declaration under oath in a judicial pro- ceeding, and that the legal effect of the instrument is stated under the advice of counsel learned in the law. So, also, where both the existence and the legal effect of one deed are recited in another, the solemnity of the act, and the usual aid of counsel, take the case out of the reason of the general rule, and justify the admission of such recital, as satisfactory evi- dence of the legal effect of the instrument, as well as conclu- sive proof of its execution.' There are other cases, which 1 United States v. Battiste, 2 Sumu. 240. And see Newton v. Belcher, 12 Ad. & El. 921, N. S. 2 Doe d. Lowden v. Watson, 2 Stark. R. 230. 3 Digby V. Steele, 3 Campb. 115. « Sewell V. Stubba, 1 C. & P. 73. 5 Doe d. Waithman v. Miles, 1 Stark. R. 181 ; 4 Campb. 875. 6 Gibbons v. Coggon, 2 Campb. 188. Whether an admission of the coun- terfeit character of a bank-note which the party had passed, is sufficient evi- dence of the fact, without producing the note, qucere; and see Common- wealth V. Bigelow, 8 Met. 235. 7 Ashmore v. Hardy, 7 C. & P. 601 : Digby v. Steele, 3 Campb. 115 ; CHAP. IV.] THE BEST EVIDENCE. 137 may seem, at first view, to constitute exceptions to the pres- ent rule, but in which the declarations of the party were admissible, either as contemporaneous with the act done, and expounding its character, thus being part of the res gestce ; or, as establishing a collateral fact,' independent of the written instrument. Of this sort was the declaration of a bankrupt, upon his return to his house, that he had been absent in order to avoid a writ issued against him ; ^ the oral acknowledgment of a debt, for which an unstamped note had been given ; '^ and the oral admission of the party, that be was in fact a member of a society created by deed, and had done certain acts in that capacity.^ Burleigh v. Stibbs, 5 T. R.465 ; West v. Davig, 7 East, 363 ; Paul v. Meek, 2 Y. & J. 116 ; Breton v. Cope, Peake's Cas. 30. [As to answers in Chan- cery, see infra, § 260, and 3 Greenl. Ev. §§ 280, 290 ; as to recitals in deeds see supra, § 23, note.] 1 Newman v. Stretch, 1 M. & M. 338. 2 Singleton v. Barrett, 2 C. & J. 368. a Alderson v. Clay, i Stark. K. 405 ; Harvey V. Kay, 9 B. & C. 356. 12* 138 LAW OF BVIDBNOB. [PAKT II. CHAPTER V. OF HEARSAY. § 98. The first degree of moral evidence, and that which is most satisfactory to the mind, is afforded by our own sens_es ; this being direct evidence, of the highest nature. Where this cannot be had, as is generally the case in the proof of facts by oral testimony, the law requires the next best evi- dence, namely, the testimony of those who can speak from their own personal knowledge. It is not requisite that the witness should have personal knowledge of the main fact in controversy ; for this may not be provable by direct testi- mony, but only by inference from other facts shown to exist. But it is requisite that, whatever facts the witness may speak to, he should be confined to those lying in his own knowl- edge, whether they be things said or done, and should not testify from information given by others, however worthy of credit they may be. For it is found indispensable, as a test of truth, and to the proper administration of justice, that every living witness should, if possible, be subjected to the ordeal of a cross-examination, that it may appear what-were his powers of perception, his opportunities for observation, his attentiveness in observing, the strength of his recollection, and his disposition to speak the truth. But testimony fi:om the relation of third persons, even where the informant is known, cannot be subjected to this test ; nor is it often pos- sible to ascertain through whom, or how many persons, the narrative has been transmitted, from the original witness of the fact. It is this which constitutes that sort of second- hand evidence, termed hearsay. '§ 99. The term hearsay is used with reference to that which is written, as well as to that which is spoken ; and, in CHAP, v.] HEARSAY. 139 its legal sense, it denotes that kind of evidence, which does not derive its value solely from the credit to be given to the witnegs himself, but re^sts also, in "parl^ on the,-yeraclty and competency of some otherjerson.^ Hearsay evidence, as thus described, is' uniformly held incompetent to establish any specific fact, which, in its nature, is susceptible of being proved by witnesses, who can speak from their own knowl- edge. That this species of testimony supposes something better, which might be adduced in the particular case, is not the sole ground of its exclusion. Its extrinsic weakness, its incompetency to satisfy the mind as to the existence of the fact, and the frauds which may be practised under its cover, combine to support the rule, that hearsay evidence is totally inadmissible.2 § 100. Before we proceed any farther in the discussion of this branch of evidence, it will be proper to distinguish more cleaYly between hearsay evidence and that which is deemed original. For it does not follow, because the writing or words in question are those of a third person, not under oath, that therefore they are to be considered as hearsay. On the contrary^ it happens in many cases, that the very fact in controversy is, whether such things were written or spoken, and not whether they were true; and in other cases, such language or statements, whether written or spoken, may be the natural or inseparable/concomitants of the principal fact in controversy.^ In such cases, it is obvi- ous, that the writings or words are not wi^ihin the meaning of hearsay, but are original and independent facts, admissible in proof of the issue. § 101. Thus, where the '([uestion is, whether the party acted prudently, wisely, or in good faith, the information 1 1 Phil. Evid. 185 ; [Sussex Peerage case, 11 CI. & Fin. 85, 113 ; Stapyl- ton V. Clough, 22 Eng. Law and Bq. E. 276.] 2 Per Marshall, C. J., in Mima Queen v. Hepburn, 7 Cranch, 290, 295, 296 ; Davis v. Wood, 1 Wheat. 6, 8 ; Rex v. Eriswell, 3 T. R. 707*. 3 Bartlett v. Delprat, 4 Mass. 708; Du Bost v. Betesford, 2 Campb. 511. 140 LAW OF EVIDENCE. [PART II. on which he acted, whether true or false, is original and material evidence. This is often illustrated in actions for malicious prosecution ; ^ and also in cases of agency and of trusts. So, also, letters and conversation addressed to a per- son, whose sanity is the fact in the question, being connected in evidence with some abt done by hirn, are original evidence to show whether he was insane or not.^ The replies given to inquiries made at the residence of an absent witness, or at the dwelling-house of a bankrupt, denying that he was at home, are also original evidence.^ In these, and the like 1 Taylor v. Willans, 2 B. & Ad. 845. So, to reduce the damages, in an action for libel. Colman v. Southwick, 9 Johns. 45. 8 Wheeler u. Alderson, 3 Hagg. Eccl. E. 574, 608; Wright v. Tatham, 1 Ad. & El. 3, 8; 7 Ad. & El. 313, S. C. ; 4 Bing.-N. C. 489, S. C. Whether letters addressed to the person, whose sanity is in issue, are admissible evi- dence to prove how he was treated by those who knew him, without show- ing any reply on his part, or any other act connected with the letters or . their contents, was a question much discussed in Wright v. Tatham. Their admissibility was strongly urged as evidence of the manner in which the person was in fact treated by those who knew him ; but it was replied, that the effect of the letters, alone considered, was only to show what were the opinions of the writers ; and that mere opinions, upon a distinct fact, were in general inadmissible ; but, whenever admissible, they must be proved, like other facts, by the witness himself under oath. The letters in this case were admitted by'Gurney, B., who held the assizes ; and upon error in the Exchequer Chambei', four of the learned Judges deemed them rightly ad- mitted, and three thought otherwise ; but the point was not decided, a venire de novo being awarded on another ground. See 2 Ad. & El. 3 ; and 7 Ad. 6 El. 329. Upon the new trial before the same Judge, the letters were again received ; and for this cause, on motion, a new trial was granted by Lord Denman, C. J., and Littledale and Coleridge, Judges. The cause was then again tried before Coleridge, J., who rejected the letters ; and excep- tions being taken, a writ of error was again brought in the Exchequer Chamber ; where the six learned Judges present, being divided equally upon the question, the judgment of the King's Bench was affirmed ; (see 7 Ad. & El. 313, 408 ;) and this judgment was afterwards affirmed in the I House of Lords; see 4 Bing. N. C. 489 ;) a large majority of the learned 1 Judges concurring in opinion, that letters addressed to the party were not j admissible in evidence, unless connected, by proof, with some act of his own ' in regard to the letters themselves, or their contents. 3 Crosby v. Percy, 1 Taunt. 364 ; Morgan v. Morgan, 9 Bing. 359 ; Sum- ner u. Williams, 5 Mass. 444; Pelletreau v. Jackson, 11 Wend. HO, 123, 124 ; Key v. Shaw, 8 Bing. 320 | Phelps v. Foot, 1 Conn. 387. CHAP, v.] HEARSAY. 141 cases, it is not necessary to call the persons to whom the inquiries were addressed, since their testimony could add nothing to the credibility of the fact of the denial, which is the only fact that is material. This doctrine applies to all other communications, wherever the fact that such commu- nication was made, and not its truth or falsity, is the point in controversy.' Upon the same principle it is considered, that evidence of general reputation, reputed ownership, public rumor, general notoriety, and the like, though composed of the speech of third persons not under oath, is original evi- dence and not hearsay ; the subject of inquiry being the concurrence of many voices to the same fact.^ § 102. Wherever the bodily or mental feelings of an indi- vidual are materially to be proved, the usual expressions of such feelings, made at the time in question, are also original evidence. If they were the natural language of the affection, whether of body or mind, they furnish satisfactory evidence, and often the only proof of its existence.^ And whether they 1 Whitehead v. Scott, 1 M. & Rob. 2 ; Shott v. Streatfield, Id. 8 ; 1 Ph. Evid. 188. 2 Foulkes V. Sellway, 3 Esp. 236 ; Jones v. Perry, 2 Esp. 482 ; Rex v. Watson, 2 Stark. R. 116 ; Bull. N. P. 296, 297. And see Hard v. Brown, 3 Washb. 87. Evidence of reputed ownership is seldom admissible, except in cases of bankruptcy, by virtue of the statute of 21 Jac. 1, c. 19, § 11 ; Gurr V. Rutton, Holt's N. P. Cas. 327 ; Oliver v. Bartlett, 1 Brod. & Bing- 269. Upon the question, whether a libellous painting was made to repre- sent a certain individual, Lord EUenborough permitted the declarations of the spectators, while looking at the picture in the exhibition room, to be given in evidence. Du Bost v. Beresford, 2 Campb. 512. [The fact that a debtor was reputed insolvent at the time of an alleged fraudulent preference of a creditor, is coinpetent evidence tending to show that his preferred cred- itor had reasonable cause to believe him insolvent. Lee v. Kilburn, 3 Gray, 594. And the fact that he was in good repute as to properly may likewise .be proved to show that such a creditor had not reasonable cause to believe him insolvent. Bartlett v. Decreet, 4 Gray, 113; Hey wood v. Reed, lb. 574. In both cases the testimony is admissible on the ground that the belief of men, as to matters of which they have not personal knowledge, is reason- ably supposed to be affected by the opinions of others who are about them. See also Carpenter v. Leonard, 3 Allen, ^ ; and Whitcher v. Shuttuck, lb. 319.] 3 [Such evidence, however, is not to be extended beyond the necessity on 142 LAW OF EVIDENCE. . [PART 11. were real or feigned is for the Jury to determine. Thus, in actions for criminal conversation, it being material to ascer- tain upon what terms the husband and wife lived together before the seduction, their language and deportment towards each other, their correspondence together, and their conver- sations and correspondence with third persons, are original evidence.^ But to guard against the abuse of this rule, it has been held, that before the letters of the wife can be received) it must be proved that they were written prior to any miscon- duct on her part, and when there existed no ground for im- puting collusion.^ If "written after an attempt of the defend- ant to accomplish the crime, the letters are inadmissible.^ Nor are the dates of the wife's letters to the husband received as sufficient evidence of the time when they were written, in order to rebut a charge of cruelty on his part ; because of the danger of collusion.* So, also, the representation, by a sick person, of the nature, symptoms, and efl'ects of the mal- ady, under which he is laboring at the time, are received as original evidence. If made to a medical attendant, they are of greater weight as evidence ; but, if made to any other person, they are not on that account rejected.^ In prosecu- whlch the rule is founded. Anything in the nature of narration or state- ment is to be carefully excluded, and the testimony is to be confined strictly to such complaints, exclamations, and expressions as usually and naturally accompany and furnish evidence of a present existing pain or malady. Bacon v. Charlton, 7 Cush. 581, 586.] 1 Trelawney v. Coleman, 2 Stark. R. 191 ; 1 Barn. & Aid. 90, S. C. ; Willis V. Barnard, 8 Bing. 376; Elsam v. Faucett, 2 Esp. 5§2; Winter!). Wroot, 1 M. & Kob. 404 ; Gilchrist v. Bale, 8 Watts, 355 ; Thompson v. Freeman, Skin. 402. 2 Edwards v. Crock, 4 Esp. 39 ; Trelawney v. Coleman, 1 Barn. & Aid. 90; 1 Phil. Evid. 190. 3 Wilton V. Webster, 7 Car. & P. 198. * Hbuliston V. Smyth, 2 Car. & P. 22 ; Trelawney v. Coleman, 1 Barn. & Aid. 90. [And where in an action against a husband for the board of his wife the plaintiff had introduced testimony tending to show a certain state of mind on the part of the wife, her declarations to third persons on that sub- ject, expressive of her mental feelings, are admissible in favor of the hus- band. Jacobs V. Whitcomb, 10 'Cush. 255.] 5 Aveson v. Lord Kinnaird, 6 East, 188 ; 1 Ph. Evid. 191 ; Grey v. Young, 4 McCord, 38 ; Gilchrist i'. Bale, 8 Watls, 355. [In an action for an injury OHAP. v.] HEARSAY. 143 tions for rape, too, where the party injured is a witness, it is material to show that she made complaint of the injury while it was yet recent. Proof of such complaint, there- fore, is original evidence ; but the statement of details and circumstances is excluded, it being no legal proof of their truth.i § 103. To this head may be referred much of the evidence someijmes termed hearsay,, which is admitted in cases of pedigree. The principis, question, in these cases, is that of the parentage, or descent of the individual ; and in order to ascertain this fact, it is material to know how he was acknowledged and treated by those who were interested in him, or sustained towards him any relations of blood or affinity." It was long unsettled, whether any and what kind of relation must have subsisted between the person speaking and the person whose pedigree was in question ; and there are reported cases, in which the declarations of servants, and even of neighbors and friends, have been admitted. But it is now settled^ that the law resorts to hearsay evidence in cases of pedigree, upon the ground of the interest of the dec- larants of the person, from whom the descent is made out, and their consequent interest in knowing the connections of the family. The rule of admission is, therefore, restricted to the declarations of deceased persons, who were related by blood or majrriage to the person, and, therefore, interested in the succession in question.^ Ajid general repute in the caused by a defect in the highway, groans or exclamations uttered by the plaintiff at any time, expressing present pain or agony, and referring by word or gesture to the seat of the pain, are competent testimony for the plaintiff. Bacon v. Charlton, 7 Cush. 581, 586. State v. Howard, 32 Vt. 380 ; Kent v. Lincoln, lb. 591. 1 1 East, P. C. 444, 445 ; 1 Hale, P. C. 633 ; 1 Kussell on Crimes, 565 ; Kex V. Clarke, 2 Stark. K. 241 ; Laughlin v. The State, 18 Ohio, 99. In a prosecution for conspiring to assemble a large meeting, for the purpose of exciting terror in the community, the complaints of terror, made by persona professing to be alarmed, were permitted to be proved by a witness, who heard them, without calling the persons themselves. Regina v. Vincent etal. 9 C. & P. 275. See Bacon v. Charlton, 7 Cush. 581. 2 Vowles V. Young, 18 Ves. 140, 147 ; Goodright v. Moss, Cowp. 591, 594, 144 LAW OF EVIDENCE. [PAET U. family, proved by the testimony of a surviving member of it, has been considered as falling within the rule.^ § 104. The term pedigree, however, embraces not only descent and relationship, but also the facts of birth, mar- riage, and death, and the times when these events happened. These facts, therefore, may be proved in the manner above mentioned, in all cases where they occur incidentally, and in relation to pedigree. Thus, an entry by a deceased parent, or other relative, made in a Bible, family missal, or any other book, or in any document or paper, stating the fact and date of the birth, marriage, or death of a child, or other relative, as expounded by Lord Eldon, in Whitelocke v. Baker, 13 Ves. 514 ; John- son V. Lawson, 2 Bing. 86 ; Monkton v. Attorney-General, 3 Russ. & My. 147,156; Crease w. Barrett, 1 Cromp. Mees. & Eos. 919, 928; Casey ». O'Shaunessy, 7 Jur. 1140 ; Gregory v. Baugh, 4 Rand, 607; Jewell v. Jew- ell, 1 How. S. C. Rep. 231 ; 17 Peters, 213, S. C. ; Kaywood v. Barnett, 3 Dev. & Bat. 91 ; Jackson v. Browner, 18 Johns. 37 ; Chapman v. Chapman, 2 Conn. 347; Waldron v. Tuttle, 4 N. Hamp. 371. The declarations of a mother, in disparagement of the legitimacy of her child, have been received in a question of succession. Hargrave v. Hargrave, 2 C. & K. 701 ; [Mooers V. Bunker, 9 Foster, (N. H.) 420; Emerson v. White, lb. 482; Kelley w. McGuire, 15 Ark. 555.] 1 Doe V. Griffin, 15 East, 29. There is no valid objection to such evi- dence, because it is hearsay upon hearsay, provided all the declarations are within the family. Thus, the declarations of a deceased lady,- as to what had been stated to her by her husband in his lifetime, were admitted. Doe V. Randall, 2 M. & P. 20 ; Monkten v. Attorney-Gen. 2 Russ. & My. 165; Bull. N. P. 295 ; Elliott v. PiersoU, 1 Peters, 328, 337. It is for the Judge to decide, whether the declarants were " members of the family so as to ren- der their evidence admissible ; " and for the Jury to settle the fact to which their declarations relate. Doe v. Davis, 11 Jur. 607; 10 Ad. & El. 314, N. S. [See also Copes v. Pearce, 7 Gill, 247 ; Clements v. Hunt, 1 Jones, Law, (N. C.) 400.] In regard to the value and weight to be given to this kind of evidence, the following observations of Lord Langdale, M. R., are entitled to great consideration. " In cases,'' said he, " where the whole evi- dence is traditionary, when it consists entirely of family reputation, or of state- ments of declarations made by persons who died long ago, it must be taken with such allowances, and also with such suspicions, as ought reasonably to be attached to it. When family reputation, or declarations of kindred made in a family, are the subject of evidence, and the reputation is of long stand- ing, or the declarations are of old date, the memory as to the source of the CHAP, v.] HEAKSAY. 145 is regarded as a dgclaration of such parent or relative, in a matter of pedigree*^ So also, the correspondence of deceased members of the family, recitals in family deeds, such as mar- riage settlements, descriptions in wills, and other solemn acts, are original evidence in all cases, where the oral declarations of the parties are admissible.^ In regard to recitals of pedi- gree in bills and answers in Chancery, a distinction has been reputation, or as to the persons who made the declarations, can rarely be characterized by perfect accuracy. What is true may become blended with, and scarcely distinguishable from something that is erroneous ; the de- tection of error in any part of the statement necessarily throws doubt upon the whole statement, and yet all that is material to the cause may be per- fectly true ; and if the whole be rejected as false, because error in some part is proved, the greatest injustice may be done. All testimony is subject to such errors, and testimony of this kind is more particularly so ; and however difficult it may be to discover the truth, in cases where there can be no demonstration, and where every conclusion which may be drawn is subject to some doubt or uncertainty, or to some opposing probabilities, the Courts are bound to adopt the conclusion which appears to rest on the most solid foundation." See Johnson v. Todd, 5 Beav. 599, 600. 1 The Berkley Peerage case, 4 Gampb. 401, 418; Doe v. Bray, 8 B. & C. 813 ; Monkton v. The Attorney-Gen. 2 Russ. &. My. 147 ; Jackson «. Cooley, 8 Johns. 128, 131, per Thompson, J., ; Douglas v. Saunderson, 2 Dall. 116 ; The Slane Peerage case, 5 Clark & Fin. 24 ; Carskadden v. Poorman, 10 Watts, 82 ; The Sussex Peerage case; 11 Clark & Fin. 85 ; Wa.tson v. Brew- ster, 1 Barr, 381. And in a recent case this doctrine has been thought to warrant the admission of declarations, made by a deceased person, as to where his family came from, where he came from, and of what place his father was designated. Shields v. Boucher, 1 De Gex & Smale, 40. 2 Bull. N. P. 233 ; Neal v. Wilding, 2 Str. 1151, per Wright, J.; Doe v. E. of Pembroke,' 11 East, 503 ; Whitelocke v. Baker, 13 Ves. 514 ; Elliott V. Piersoll, 1 Pet. 328; 1 Ph. Evid. 216, 217, and Peerage cases there cited. In two recent oases, the recitals in the deeds were held admissible only against the parties to the deeds; but in neither of those cases was the party proved to have been related to those whose pedigree was recited. In Fort V. Clarke, 1 Buss. 601, the grantors recited the death of the sons of John Cprmick, tenants in tail male, and declared themselves heirs of the bodies of his daughters, who were devisees in remainder ; and in Slaney v. Wade, 1 Mylne & Craig, 338, the grantor was a mere trustee of the estate, not related to the -parties. See also Jackson v. Cooley, 8 Johns. 128 ; Jackson V. Russell, 4 Wend. 543 ; Keller v. Nutz, 5 S. & R. 251. If the recital in a will is made after the fact recited is in controversy, the will is not admissible as evidence of that fact. The Sussex Peerage case, 11 Clark & Fin. 85. VOL. I. 13 146 LAW OP EVIDENCE. [PAET II. taken between those facts which are not in dispute and those which are in controversy ; the former being admitted, and the latter excluded.^ Recitals in deeds, other than family deeds, are also admitted, when corroborated by long and peaceable possession according to the deed.^ § 105. Inscriptions on tombstones, amd other funeral monu- ments, engravings on rings, inscriptions on family portraits, charts or pedigree, and the like, are also admissible, as origi- nal evidence of the same facts. Those which are proved to have been made by, or under the direction of a deceased relative, are admitted as his declarations. But if they have been publicly exhibited, and were well known to the family, the publicity of them supplies the defect of proof, in not showing that they were declarations of deceased members of the family ; and they are admitted on the ground of tacit and common assent. It is presumed, that the relatives of the family would not permit an inscription without founda- tion to remain ; and that a person would not wear a ring with an error on it.^ Mural and other funeral inscriptions are provable by copies, or other secondary evidence, as has been already shown.* Their value, as evidence, depends 1 Phil. & Am. on Evid. 231, 232, and the authorities there cited. Mx parte affidavits, made several years before, to prove pedigree by official require- ment, and prior to any lis mota, are admissible. Hurst v. Jones, Wall, Jr. 873, App. 3. As to the effect of a lis mota upon the admissibility of declara- tions and reputation, see infra, § 131-134. 2 Stokes V. Daws, 4 Mason, 268. 3 Per Lord Erskine, in Vowles v. Young, 13 Ves. 144 ; Monkton v. The Attorney-Gen. 2 Rus. &Mylne,.147; Kidney w. Coekburn, Id. 167. The Camoys Peerage, 6 CI. & Fin. 789. An ancient pedigree, purporting to have been collected from history, as vfell as from other sources, was held ad- missible, at least to show the relationship of persons described by the framer as living, and therefore to be presumed as known to him. Davies v. Lowndes, 7 Scott, N. K. 141. Armorial bearings, proved to have existed while the heralds had the power to punish usurpations, possessed an official weight and credit. But ihis authority is thought to have ceased with the last herald's visitation, in 1686. See 1 Phil. Evid. 224. At present, they amount to no more than family declarations. 4 Supra, § 94. [See also Eastman v. Martin, 19 N. H. 152.] CHAP, v.] HBAKSAT. 147 much on the authority under which they were set up, and the distance of time between their erection and the events they commemorate.^ § 106. Under this head may be mentioned family conduct, such as the tacit recognition of relationship, and the disposi- tion and devolution of property, as admissible evidence, from which the opinion and belief of the family may be inferred, resting ultimately on the same basis as evidence of family tradition. Thus it was remarked by Mansfield, C. J., in the Berkley Peerage case,^ that, " if the father is proved to have brought up the party as his legitimate son, this amounts to a daily assertion that the son is legitimate." And Mr. Jus- tice Ashhurst, in another case, remarked that the circum- stance of the son's taking the name of the person with whom his mother, at the time of his birth, lived in a state of adul- tery, which name he and his descendants ever afterwards retained, "was a very strong family recognition of his ille- gitimacy." ^ So, the declarations of a person, since deceased, that he was going to visit his relatives at such a place, have been held admissible to show that the family had relatives there.* § 107. It is frequently said, that general reputation is ad- missible to prove the fact of the marriage of the parties alluded to, even in ordinary cases, where pedigree is not in question. In one case, indeed, such evidence was, after ver- dict, held sufficient, primd facie, to warrant the Jury in find- ing the fact of marriage, the adverse party not having cross- examined the witness, nor controverted the fact by proof.^ But the evidence produced in the other cases, cited in sup- 1 Some remarkable mistakes of fact in such inscriptions are mentioned in 1 Pliil. Evid. 222. 2 4 Campb. 4r6. 3 Goodright v. Saul, 4 T. R. 356. 4 Eishton v. Nesbitt, 2 M. & Rob. 252. 5 Evans v. Morgan, 2 C. & J. 453. Ii8 LAW OF EVIDENCE. [PART II. port of this position cannot properly be called hearsay evi- dence, but was strictly and trnly original evidence of facts, from w^hich the marriage might well be inferred ; such as evidence of the parties being received into society as man and wife, and being visited by respectable families in the neighborhood, and of their attending church and public places together as such, and otherwise demeaning them- selves in public, and addressing each other as persons actu- ally married.^ § 108. There are other declarations, which are admitted as original evidence, being distinguished from hearsay by their connection with the principal fact under investigation. The affairs of men consist of a complication of circumstances, so intimately interwoven as to be hardly separable from each other. Bach owes its birth to some preceding circumstances, and, in its turn, becomes the prolific parent of others ; and each, during its existence, has its inseparable attributes, and its kindred facts, materially affecting its character, and essen- tial to be known, in order to a right understanding of its nature. These surrounding circumstances, constituting parts of the res gestce, may always be shown to the Jury, along with the principal fact ; and their admissibility is determined by the Judge, according to the degree of their relation to that fact, and in the exercise of his sound discretion ; it be- ing extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description.^ 1 1 Phil. Evid. 234, 235 ; Hervey v. Hervey, 2 W. Bl.. 877; Birt v. Bar- low, Doug. 171, 174 ; Read v. Passer, 1 Esp. 213 ; Leader v. Barry, Id. 353 ; Doe V. Fleming, 4 Bing. 266 ; Smith v. Smith, 1 Phillim. 294 ; Hammick ». Bronson, 6 Day, 290, 293 ; In re Taylor, 9 Paige, 611 ; [2 Greenl. Ev. (7th ed.) § 461-462.] 2 Per Park, J., in Kawson v. Haigh, 2 Bing. 104 ; Kidley v. Gyde, 9 Bing. 349, 352; Pool ... Bridges, 4 Pick. 379; Allen i'. Duncan, 11 Pick. 309; [Haynes v. Rutter, 24 Pick. 242; Gray v. Goodrich, 7 Johns. 95; Bank of Woodstock V. Clark, 25 Vt. 308 ; Mitchum v. State, 11 Geo. 615 ; Tomkies V. Reynolds, 15 Ala. 109; Cornelius o. The State, 7 Eng. 782. On the trial of an action brought by a principal against an agent who had charge of certain business of the ^incipal for many years, to recover money CHAP, v.] HEARSAY. 149 The' principal points of attention are, whether the circum- stances and declarations ojfFered in proof ^eie contempora- neous with the main fact under consideration, and whether they were so connected with it as to illustrate its character.^ received by the defendant from clandestine sales of property of the plaintiff, and money of the plaintiff fraudulently taken by the defendant, evidence that the defendant at the time of entering the plaintiff's service was insolvent, and that he had since received only a limited salary and some small addi- tional compensation, and that subsequent to the time of his alleged mis- doings, and during the period specified in the writ, he was the owner of a large property, far exceeding the aggregate of all his salary and receipts while in the plaintiff's service, is admissible as having some tendency to prove, if the Jury are satisfied by other evidence that money had been taken from the plaintiff by some one in his employ, that the defendant is the guilty person ; such tacts being in nature of res gestae accompanying the very acts and transactions of the defendant under investigation, and tending to give them character and significance. And the declarations of the defendant concerning his property and business transactions, made to third persons, in the absence of the plaintifi" or his agents, are inadmissible to rebut such evi- dence. Boston & W. R. R. Corp. v. Dana, 1 Gray, 83, 101, 103. See also Commonwealth v. Montgomery, 11 Met. 534. The declaration of a person who is wounded and bleeding, that the defendant has stabbed her, made immediately after the occurrence, though with sudh an interval of time as to allow her to go up-stairs from her room to another room, is admissible in evidence after her death, as a part of the res geslce. Commonwealth v. McPike, 3 Cush. 181.] 1 Declarations, to become part of the res gesiCE, " must have been made at the time of the act done, which they are supposed to characterize ; and have been 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 con- stitute one transaction." Per Hosmer, C. J., in Enos v. Tuttle, 3. Conn. R. 250. And see iij re Taylor, 9 Paige, 611 ; Carter v. Buchannon, 3 Kelley, R. 513 ; Blood w. Rideout, 13 Met. 237 ; Boyden v. Burke, 14 How. S. C. 575. But declarations explanatory of a previous fact, e. g. how the party's hands became bloody, are inadmissible, ibioraggs v. The State, 8 Smed. & Matsh. 722. So, where a party, on removing an ancient fence, put down a stone in one of the post-holes, and the next day declared that he placed it there as a boundary ; it was held that this declaration, not constituting part of the act done, was inadmissible in evidence in his favor. Noyes v. Ward, 19 Conn. 250. See Corinth v. Lincoln, 34 Maine-, 310. In an action by a bailor against the bailee, for loss by his negligence, the declarations of the bailee, contemporaneous with the loss, are admissible in his favor, to show the nature of the loss. Story on Bailm. § 339, cites Tompkins v. Saltmarsh, 13 * 150 LAW OF EVIDENCE. [PART 11. Thus, in the trial of Lord George Gordon for treason, the cry of the mob, who accompanied the prisoner on his enter- 14 S. & R. 275 ; Beardslee v. Richardson, 11 Wend. 25 ; Doorman v. Jen- kins, 2 Ad. & El. 80. So, in a suit for enticfng away a servant, his declara- tions at the time of leaving his master are admissible, as part of the res gestae, to show the motive of his departure. Hadley v. Carter, 8 N. Hamp. 40. [In Lund v. Tyngsborough, 9 Cush. 36, which was an action for inju- ries received through a defect in a highway, during the trial at Nisi Prius, a witness was permitted to say in reply to the question " At the time when he (the doctor who died before the trial) was called, and while engaged in such examination, what did he say concerning such injury, its nature and extent?" that " I heard him say that it was a very serious injury — ■ that it was more injured than though the bone was broken," &c. It did not appear how long it was after the accident happened when these declarations were made. The full bench decided that the evidence was wrongly admitted, and in giving the opinion of the Court, Fletcher, J., states at some length the rules of law applicable to the admissibility pf this class of testimony. " Its admission is not left to the discretion of the presiding Judge, as has been sometimes sup- posed ; but is governed by principles of law, which must be applied to par- ticular cases as other principles are applied, in the exercise of a judicial judgment ; and errors of judgment in this case, as in other cases, may be ex- amined and corrected. If it were matter of discretion merely, there would, of course, be no fixed rules and no uniformity of decisions ; and the exer- cise of this discretion would not be subject to exception and revision and correction. " If a declaration has its force by itself, as an abstract statement, detached from any particular fact in question, depending for its effect on the credit of the person making it, it is not admissible in evidence. SuclT a declaration would be hearsay. As where the holder of a check went into a bank, and, when he came out, said he had demanded its payment ; this declaration was held inadmissible to prove a demand, as being no part of the res gestae. This statement %vas mere narrative, wholly detached from the act of demanding payment, which was the fact to be proved. But when the act of a party may be given in evidence, his declarations, made at the time, and calculated to elucidate and explain the character and quality of the act, and so con- nected with it as to constitute one transaction, and so as to derive credit from the act itself, are admissible in evidence. The credit which the act or fact gives to the accompanying declarations, as a part of the transaction, and the tendency of the contemporai-y declarations, as a part of the trans- action, to explain the particular fact, distinguish this class of declarations from mere hearsay. " Such a declaration derives credit and importance, as forming a part of the transaction itself, and is included in the surrounding circumstances, which may always be given in evidence to the Jury with the principal fact. There CHAP, v.] HEARSAY. 151 prise, was received in evidence, as forming part of the res gestcB, and showing the character of the principal fact.^ So must be a main or principal fact or transaction, and only such declarations are admissible as grow out of the principal transaction, illustrate its char- acter, are contemporary with it, and derive some degree of credit from it. " The res gestae are different in different cases ; and it is not, perhaps, possible to frame any definition which would embrace all the various cases, which may arise in practice. It is for the judicial mind to determine, upon such principles and tests as are established hy the law of evidence, what facts and circumstances, in particular cases, come within the import of the terms. In general, the res gestce mean those declarations, and those surrounding facts and circumstances, which grow out of the main transaction, and have tlrose relations to it which tave been above described. " The main transaction is not necessarily confined to a particular point of time, but may extend over a longer or shorter period, according to the nature and character of the transaction. Thus, where a debtor leaves his house to avoid his creditors, which is an act of bankruptcy, and gpes abroad, and continues abroad, the act of bankruptcy continues during the continu- ance abroad forthis purpose. " So declarations, to be admissible, must be contemporaneous with the main fact or transaction ; but it is impracticable to fix, by any general rule any exact instant of time, so as to preclude debate and conflict of opinion in regard to this particular point. " Perhaps the most common and largest class of cases in which declara- tions are admissible, is that in which the state of mind or motive with which any particular act is done is the subject of inquiry. Thus, where the ques- tion is as to the motives of a (Jebtor in leaving his house and going and re- maining abroad, so as to determine whether or not an act of bankruptcy has been committed, his declarations when leaving his house and while remain- ing abroad, as to his motives for leaving his house and for remaining abroad, are admissible in evidence. Such declarations, accompanying the act, clearly belong to the res geslce. They are calculated to elucidate and ex- plain the act, and they derive a degree of credit from the act. " It was on this principle that, on the trial of Lord George Gordon, the cries of the mob were received in evidence. The prisoner was tried for treason, committed, as it was charged, by levying war against the king ; 1 21 Howell's St. Tr. 542. [In an indictment for keeping a house of ill- fame, evidence of conversations held by men immediat»Iy upon comino- out of the house and upon the sidewalk in front thereof, but not in the presence of the defendant, nor of any of the inmates, as to what had taken place in the house, has been held to be inadmissible as part of the res gestce and tend- ing to show the character of the visitors in the house. Commonwealth v. Harwood, 4 Gray, 41.] 152 LAW OF EVIDENCE. [PART II. also, where a person enters into land in order to take ad- vantage of a forfeiture, to foreclose a mortgage, to defeat a which consisted, in fact, as alleged, in attempting to effect by force a repeal of an act of Parliament, which had been passed in favor of Catholics. The prisoner presented a petition to Parliament for a repeal of the obnoxious act, and, in doing this, was accompanied by many thousand persons whom he had collected and organized for the purpose, who took possession of the lobby and avenues to the House of Commons in a menacing manner, and insulted and ill-treated some members of each House of Parliament, and refused to retire after the petition had been presented ; but insisted on a repeal of the offensive act, and kept up the cry of ' A repeal ! a repeal 1 no popery 1 ' These cries manifestly formed a part of the res gastcB, and tended to explain the purpose and intention of the multitude which the prisoner had called together and took with him in presenting the petition, and were, therefore, admissible in evidence. " Every case has its own peculiar distinctive res gestm ; and to determine, in any particular case, whether or not there is properly any main fact,' and what declarations, facts, and circumstances belong to it, as forming the res gestae, is often very difficult, requiring very careful consideration and nice discrimination. "The case of Wright v. Tatham, 5 Clark & Finnelly, 670, forcibly illus- trates this difficulty, and presents a very singular instance of disagreement among eminent Judges. The point in issue was the sanity of John Marsden, and the particular question was, as to the admissibility in evidence of certain letters, which had been addressed to him by different persons, and which were found, after his decease, opened, with other papers, in a cupboard under his bookcase, in his private room. The great and difficult question was, whether there was any act, admissible in evidence, which these letters would qualify, ilfustrate, or explain, so that they were, on that ground, re- ceivable. " The case was first tried before Baron Gurney, and the letters were re- jected. A bill of exceptions was tendered, and the case was argued in the Exchequer Chamber. Of seven Judges who sat in that Court, four thought the letters receivable and three were of a contrary opinion ; but the point was not decided, a new trial being granted on another ground. The cause was tried again before the same learned baron, and, on this trial, the letters were admitted in evidence. A motion was, on this ground, made for a new trial ; and Lord Denman, after time taken to consider, delivered the judg- ment of the Courtf declaring the letters to be inadmissible, and therefore making the rule for a new trial absolute. " The cause was then tried before Mr. Justice Coleridge. The letters were offered and rejected. A bill of exceptions was tendered; judgment was signed as of course, for the plaintiff, in the Court of King's Bench ; and a writ of error was then brought in the Exchequer Chamber. The Judges of CHAP, v.] HEARSAY; 153 disseisin,^ or the like ; or changes his actual residence, or domicile, or is upon a journey, or leaves his home, or returns thither, or remains abroad, or secretes himself; or, in fine, does any other act, material to be understood ; his declara- tions, made at the time of the transaction, and expressive of its character, motive, or object, are regarded as "verbal acts, indicating a present purpose and intention," and are there- fore admitted in proof like any other -material facts.^ So, this Court were equally divided in opinion, and the judgment of the Court below was therefore affirmed. Upon this affirmance, a writ of error in the House of Lords was brought. A question was put to the Judges, whether these letters, three in all, were admissible in evidence on behalf of the plaintitf in error, who was the original defendant. Three of the Judges were of opinion that all the letters were admissible ; three considereS that only one was admissible ; and six thought that neither was admissible. So six were for reversing the judgment, and six for affirming it. The House of Lords affirmed the judgment of the Court below. "It remains to apply the settled principles of the law to the particular case now under consideration. The declarations of the doctor, who was called to Mrs. Lund, after the accident, and made an examination, were offered, to show the extent and nature of the injury she had received. There was no question in regard to the examination ; that act, of itself, detached from the declarations, was wholly unimportant and immaterial. There was, there- fore, in legal contemplation, no main act with which the declarations Could be connected. The declarations, though made at the time, were, in no proper sense, a part of the examination. They merely announced the re- sults, the opinion of the doctor, the conclusion at which he ar'-ived. These declarations might have been made with precisely the same effect, at any subsequent time, a day or a week after the examination. " The declarations were mere abstract statements, wholly detached from any main act or fact admissible in evidence, and depending for their effect entirely on the credit of the doctor. They were the expression of a pro- fessional opinion, and had their weight wholly as such. Such declarations are mere hearsay, and were clearly improperly admitted in evidence." 1 Co. Litt. 49 b, 245 b ; Robinson v. Swett, 3 Greenl. 316 ; 3 Bl. Comm. 174, 175. s! Bateman v. Bailey, 5 T. R. 512, and the observations of Mr. Evans upon it in 2 Poth. Obi. App. No. xvi. § 11 ; Rawsou v. Haigh, 2 Bing. 99 ; New- man V. Stretch, 1 M. & M. 338 ; Ridley v. Gyde, 9 Bing. 349, 352 ; Smith V. Cramer, 1 Bing. N. C. 585 ; Gorham v. Canton, 6 Greenl. 266 ; Fellowes V. Williamson, 1 M. & M. 306 ; Vacher v. Cocks, Id. 353 ; 1 B. & Ad. 135 ; Thorndike v. City of Boston, 1 Met. 242 ; Carroll v. The State, 3 Humph. 315 ; Kilburn v. Bennet, 3 Met. 199 ; Salem v. Lynn, 13 Met. 544 ; Porter V. Ferguson, 4 Flor. Rep. 104. 154 LAW OF EVIDENCE. [PAKT II, upon an inquiry as to the state of mind, sentiments, or dis- positions of a person at any particular period, his declara- tions and conversations are admissible.^ They are parts of the res gestm? § 109. In regard to the declarations of persons in posses- sion of land; explanatory of the character of their possession, there has been some difference of opinion ; but it is now well settled, that declarations in disparagement of the title of the declarant are admissible, as original evidence. Possession is primd facie evidence of seisin in fee simple ; and the declara- tion of the possessor, that he is tenant to another, it is said, makes most strongly against his own interest, and therefore is admissible.^ But no reason is perceived, why every dec- 1 Barthelemy v. The People, &c. 2 Hill, N. Y. Rep. 248, 267 ; Wetmore V. Mell, 1 Ohio, N. S. 26 ; [Supra, § 102.] 2 [It is only when the thing done is equivocal, and it is necessary to render its meaning clear, and expressive of a motive or object, that it is competent to prove declarations accompanying it, as falling within the class of res gestas. By Bigelow, J., in Nutting o. Page, 4 Gray, 584. Thus the reasons stated by the master-workman, when building a dam, for making it lower in the middle than at either end, are not competent evidence against his employer that it was so made ; nor are the instructions given by the owner of the dam while rebuilding it, to mark the height of the' old dam and to erect the new one of the same height. Nutting v. Page, ut supra. See also Carleton a. Patterson, 9 Foster, (N. H.) 580. The conduct and exclamations of passen- gers on a railroad at the time of an accident, though not in the presence of the party receiving an injury, are admissible as part of the res gestcs, to justify the conduct of the party injured. Galena, &c. R. R. Co. v. Fay, 16 111. 558. A letter which is part of the res gestce, is admissible in evidence, although the writer of it might be a witness. Koach v. Learned, 37 Maine, 110. In a question of settlement the pauper's declarations when in the act of removing, are admissible. Richmond v. Thomaston, 38 Maine, 232 ; Cornville v. Brighton, 39 lb. 333. The acts and sayings of a constable at the time of a levy, are admissible as part of the res gestae, in an action against the sureties on his bond for neglecting to make a rfiturn thereof. Dobbs v. Justices, 17 Geo. 624.] 3 Peaceable v. Watson, 4 Taunt. 16, 17, per Mansfield, C. J. ; West Cam- bridge V. Lexington, 2 Pick. 536, per Putnam, J. ; Little u. Libby, 2 Greenl. 242 ; Doe v. Pettett, 5 B. & Aid. 223 ; Carne v. NichoU, 1 Bing. N. C. 430 ; per Lyndhurst, C. B. in Chambers v. Bernasconi, 1 Cromp. & Jer. 457 ; Smith V. Martin, 17 Conn. ^. 399 ; Infra, § 189. CHAP, v.] HEARSAY. 155 laration accompanying the act of possession, whether in dis- paragement of the claimant's title, or otherwise qualifying his possession, if made in good faith, should not be received as part of the res g-estce ; leaving its effect to be governed by other rules of evidence.-^ § 110. It is to be observed, that where declarations, offered in evidence, are merely narrative of a past occwrrence, they cannot be received as proof of the existence of such occur- rence. They must be concomitant with the principal act, and so connected with it as to be regarded as the mere re- ' Da vies v. Pierce, 2 T. R. 53 ; Doe v. Rickarby, 5 Esp. 4 ; Doe f. Payne, 1 Stark. R. 69 ; 2 Poth. on Obi. 254, App. No. xvi. §11; Rankin v. Ten- brook, 6 "Watts, 388, 390, per Huston, J. ; Doe v. Pettett, 5 B. & Aid. 223 ; Reed v. Dickey, 1 Watts, 152 ; Walker v. Broadstock, 1 Esp. 458 ; Doe v. Austin, 9 Bing. 41 ; Doe v. Jones, 1 Campb. 367 ; Jackson v. Bard,'4 Johns. 230, 234 ; Weidman v. Kohr,4 S. & R. 174 ; Gibblehouse v. Strong, 3 Rawle, R. 437 ; Norton v. Pettibone, 7. Conn. R. 319 ; Snelgrove v. Martin, 2 Mc- Cord, 241, 243 ; Doe d. Majoribanks v. Green, 1 Gow. R. 227 ; Carne v. NicoU, 1 Bing. N. C. 430 ; Davis v. Campbell, 1 Iredell, R. 482 ; Crane u. Marshall, 4 Shepl. 27; Adams w. French, 2 N. Hamp. R. 287; Treat v. Strickland, 10 Shepl. 234; Blake v. White, 13 N. Hamp. R. 267; Doe v. Langfield, 16 M. & W. 497 ; Baron De Bode's case, 8 Ad. & El. 243, 244, N. S. ; Abney v. Kingsland, 10 Ala. R. 355 ; Daggett v. Shaw, 5 Met. 223 ; [Bartlett v. Emerson, 7 Gray, 174; Ware v. Brookhouse, lb. 454; Flagg v. Mason, 8 Gray, 556 ;] Stark v. Boswell, 6 Hill, N. Y. Rep. 405 ; Pike v. Hayes, 14 N. Hamp. 19 ; Smith v. Powers, 15 N. Hamp. 546, 563 ; [Marcy u. Stone, 8 Cush. 4; Stearns v. Hendersass, 9 lb. 497 ; Plimpton v. Cham- berlain, 4 Gray, 320 ; Hyde v. Middlesex Co. 2 Gray, 267; Potts v. Ever- hart, 26 Penn. State R. 493 ; St. Clair v. Shale, 20 lb. 105 ;'Doe v. Camp- bell, 1 Ired. 482 ; Brewer v. Brewer, 19 Ala. 481. A declaration by a tenant, • ^ead at the time of the trial, that he was not entitled to common of pasture in respect to his farm, is not admissible against his reversioner. Papendick v. Bridgwater, 30 Eng. Law & Eq. 293.] Accordingly, it has been held, that a statement made by a person not suspected of theft and before any search made, accounting for his possession of property which he is afterwards charged with having stolen, is admissible in his favor. Rex v. Abraham, 2 Car. & K. 550. But see Smith v. Martin, 17 Conn. R. 399. Where a party after a post-nuptial settlement mortgaged the same premises, it was held that, as his declarations could bind iim only while the interest remained in him, his dec- larations, as to the consideration paid by the subsequent purchaser, were not admissible against the claimants under the settlement, for this would enable him to cut down his own previous acts. Doe v. Webber, 3 Nev. & Man. 586. 156 LAW OF EVIDENCE. [PART II. Suit and consequence of the coexisting motives, in order to form a proper criterion for directing the judgment, which is to be formed upon the whole conduct.^ On this ground, it has been holden, that letters written during absence from home, are admissible as original evidence, explanatory of the motive of departure and absence, the departure and absence being regarded as one continuing act.^ § 111. The same principles apply to the acts and declara- tions of one of a company of conspirators, in regard to the common design as affecting his fellows. Here a foundation must-first be laid, by proof, sufficient in 'the opinion of the Judge, to establish, primd facie, the fact of conspiracy be- tween the partiesj or proper to be laid before the Jury, as tending to establish such fact. The connection of the indi- viduals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy, in pursuance of the original concerted plan, and ^ith reference to the common object is, in contemplation of law, the act and declaration of them all ; and is therefore original evi- dence against each of them. It makes no difference at what time any one entered into the conspiracy. Every one who does enter into a common purpose or design is generally 1 2 Poth. on Obi. by Evans, pp. 248, 249, App. No. xvi. § 11.. Ambrose V. Clendon, Cas. temp. Hardw. 267; Doe v. Webber, 1 Ad. & Ell. 733. In Ridley v. Gyde, 9 Bing. 349, where the point was to establish an act of bankruptcy, a conversation of the bankrupt on the 20th of November, being a resumption and continuation of one which had been begun, but broken off on the 2.5th of October preceding, was admitted in evidence. See also Boy- den V. Moore, H Pick. 3G2 ; Walton v. Green, 1 C. & P. 521 ; Reed v. Dick, 8 Watts, 479 ; O'Kelly t. O'Kelly, 8 Met. 436 ; Stiles v. Western Railroad Corp. id. 44 ; [Battles v. Batchelder, 39 Maine, 19.] 2 Rawson v. Haigh, 2 Bing. 99, 104 ; Marsh v. Davis, 24 Verm. 363 ; New Milford V. Sherman, 21 Conn. 101. [The reasons given by a wife on the day after her return to her father's house for leaving her husband, are not a part of the res gestm, as connected with and part of the act of leaving her husband's house, and so are not admissible in evidence in an action brought by the father against the husband for necessaries supplied the wife ; those made at the time of the return being admissible. Johnson v. Sherwin, 3 Gray, 374.] CHAP, v.] _ HEARSAY. 157 deemed, in law, a party to every act, which had before been done by the others, and a party to every act, which may afterwards be done by any of the others, in furtherance of such common design.'^ Sometimes, for the sake of con- venience, the acts or declarations of one are admitted in evidence, before sufficient proof is given of the conspiracy ; the. prosecutor undertaking to furnish such proof in a subse- quent stage of the cause. But this rests in the discretion of the Judge, and is not permitted, except under particular and urgent circumstances ; lest the Jury should be misled to in- fer the fact itself of the conspiracy from the declarations of strangers. And h^re, also, care must be taken that the acts and declarations, thus admitted, be those only which were made and done during the pendency of the criminal enter- prise, and in furtherance of its objects. If they took place at a subsequent period, and are, therefore, merely narrative of past occurrences, they are, as we have just seen, to be rejected.^ The term, acts, includes written correspondence, and other papers relative to the main design ; but whether it .includes unpublished writings upon abstract questions, though of a kindred nature, has been doubted.^ Where conversations are proved, the effect of the evidence will depend on other -circumstances, such as the fact and de- ' ' Eex V. Watson, 32 Howell's State Tr. 7, pei- Bayley, J. ; Rex v. Bran- dreth, Id. 857, 858 ; Rex v. Hardy, 24 Howell, State Tr. 451, 452,453,475 ; American Fur Co. v. The United States, 2 Peters, 358, 365 ; Crowninshield's case, 10 Pick.-497; Rex v. Hunt, 3 B. 8e Aid. 566 ; 1 East's P. C. 97, § 38 ;' Nichols V. Dowding, 1 Stark. R. 81. 2 Rex V. Hardy, supra. The declarations of one co-trespasser, where sev- eral are jointly sued, may be given in evidence against himself, at whatever 1 time it was made ; but, if it was not part of the res gestCB, its effect is to be | restricted to the party making it. Yet, in Wright v. Court, 2 C. & P. 232, which was an action for false imprisonment, the declaration of a co-defendant, showing personal malice, though made in the absence of the others and sev- eral weeks after the fact, was admitted by Garrow, B., without such restriction. Where no common object or motive is imputed, as in actions for negligence,'] the declaration or admission of one defendant is not admitted against any I but himself. Daniels v. Potter, 1 M. & M. 501. 3 Foster's Rep. 198; Eex v. Watson, 2 Stark. R. 116, 141-147. VOL. 1. 14 158 LAW OF EVIDENCE. fPART II. gree of the prisoner's attention to it, and his assent or dis- approval.^ § 112. This doctrine extends to all cases of partnership. Wherever any number of persons associate themselves, in the joint prosecution of a common enterprise or design, con- ferring on the collective body the attribute of individuality by mutual compact, as in commercial partnerships, and sim- ilar cases, the act or declaration of each member in further- ance of the common object of the association, is the act of all. By the very act of association, each one is constituted the agent of all.^ While the being thu^ created exists, it speaks and acts only by the several members ; and of course, when that existence ceases by the dissolution of the firm, the act of an individual member ceases to have that effect ; bind- ing himself alone, except so far as by the articles of associa- tion or of dissolution it may have been otherwise agreed.^ An admission, however, by one partner, made after the dis- solution, in regard to business of the firm, previously trans- acted, has been held to be binding on the firm.* 1 Rex V. Hardy, 24 Howell's State Tr. 703, per Eyfe, C. J. 2 Sandilands v. Marsh, 2 B. & Aid. 673, 678, 679; Wood v. Braddick, I Taunt. 104, and Petheriok v. Turner et al. there cited; Rex u. Hardwiok, II East, 578, 589; Van Reimsdyk v. Kane, 1 Gall. 630, '635; Nichols tr. Dowding, 1 Stark. .R. 81 ; Hodempyl ii. Vingerhoed, Chitty on Bills, 618, note (2) ; Coit v. Tracy, 8 Conn. R. 268. [In an action against two as alleged copartners, evidence of statements and declarations which would be admissible only upon the assumption of the existence of the Copartnership, is incompetent to prove such copartnership. Button v. Woodman, 9 Cush. 255 ; Allcott V. Strong, 9 Cush. 323. And evidence to show the continuance of a partnership after it has been dissolved, with notice to the parties, must be as satisfactory as that required to show its establishment. Allcott v. Strong, ut supra.'] 3 Bell V. Morrison, 1 Peters, 371 ; Burton v. Issitt, 5 B. & Aid. 267. 4 This doctrine was extended by Lord Brougham, to the admission of payment to the partner after the dissolution. Pritchard v. Draper, 1 Russ. & M. 191, 199, 200. See Wood v. Braddick, 1 Taunt. 104 ; Whitcomb v. Whiting, 2 Doug. 652 ; approved in Mclntire v. Oliver, 2 Hawkes, 209 ; Beitz V. Fuller, 1 McCord, 541; Cady v. Shepherd, 11 Pick. 400; Van Reimsdyk v. Kane, 1 Gall. 635, 636. See also Parker v. Merrill, 6 Greenl. CHAP, v.] HEARSAY. 159 § 113. A kindred principle governs in regard to the dec- larations of agents. The principal constitutes the agent his 41 ; Martin v. Efoot, 17 Mass. 223, 227 ; Vinal v. Burrill, 16 Pick. 401 ; Lefavour v. Yandes, 2 Blackf. 240 ; Bridge (■. Gray, 14 Pick. 55 ; Gay v, Bowen, 8 Met. 100 ; Mann u. Locke, 11 N. Hamp. R. 246, to the same point. {See also Loomis v. Loomis, 26 Vt. 198; Pierce v. Wood, ."? Foster, 519; Drumright t). Philpot, 16 Geo. 424. But where, after the dissolution of a copartnership, one partner assigned his interest in a partnership claim against the defendant to the other partner, in a suit on such claim brought in the name of both partners for the benefit of the assignee, the declarations of the assignor made after the assignment, are not admissible in favor of the defendant. Gillighan v. Tebbetts, 33 Maine, 360.] In New York, a dif- ferent doctrine is established. Walden v. Sherburne, 15 Johns. 409 ; Hop- kins V. Banks, 7 Cowen, 650 ; Clark v. Gleason, 9 Cowen, 57 ; Baker v. Stackpole, Id. 420. So in Louisiana. Lambeth o. Vawter, 6 Kob. La. R. 127. See, also, in support of the text. Lacy v. McNeil, 4 Dowl. & Ry. 7. Whether the acknowledgment of a debt by a^ partner, after dissolution of the partnership, will be sufficient to take the case out of the statute of limita- tions, and revive the remedy against the others, has been very much contro- verted in this country ; and the authorities to the point are conflicting. In England, it is now settled by Lord Tenterden's Act, (9 Geo. 4, c. 14,) that such acknowledgment, or new promise, independent of the fact of part pay- ment, shall not have such effect, except against the party making it. This provision has been adopted in the laws of some of the United States. See Massachusetts, Rev. Sts. ch. 120, § 14-17; Vermont, Rev. Sts. ch. 58, §§ 23, 27. And it has since been holden in England, where a debt was orig- inally contracted with a partnership, and more than six years afterwards, but within six years before action brought, the partnership having been dis- solved, one partner made a partial payment in respect of the debt, — that this barred the operation of the statute of limitations ; although the Jury found that he made the payment by concert with the plaintiffs, in the jaws of bankruptcy, and in fraud of his late partners. Goddard v. Ingram, 3 Ad. & El. 839, N. S. The American cases seem to have turned mainly on the question, whether the admission of the existing indebtment amounted to the making of a new contract, or not. The Courts which have viewed it as virtually a new contract, have held, that the acknowledgment of the debt bj' one partner, after the dissolution of partnership, was not admissible against his copartner. This side of the question was argued by Mr. Justice Story, with his accustomed ability, in delivering the judgment of the Court in Bell w. Morrison, 1 Peters, 367, et seq. ; where, after stating the point, he proceeds as follows: "In the ease of Bland y. Haselrig, 2 Vent. 151, where the action was against four, upon a joint promise, and the plea of the statute of limitations was put in, and the Jury found that one of the defendants did promise within six years, and that the others did not ; three 160 LAW 0^ EVIDENCE. [PART II. representative, in the transaction of certain business ; what- ever, therefore, the agent does, in the lawful prosecution of Judges, against Veutris, J., held that the plaintiff could not have judgment against the defendant, who had made the promise. This case has been explained upon the ground, that the verdict did not conform to the plead- ings, and establish a joint promise. It is very doubtful, upon a critical ex- amination of the report, whether the opinion of the Court, or of any of the Judges, proceeded solely upon such ground. In Whitcomb v. Whiting, 2 Doug. 6o2, decided in 1 781 , in an action on a joint and several note brought against one of the makers, it was held, that proof of payment, by one of the others, of interest on the note and of part of the principal, within six years, took the case out of the statute, as against the defendant who was sued. Lord Mans- field said, ' payment by one is payment for all, the one acting virtually for all the rest; and in the same manner, an admission by one is an admission by all, and the law raises the promise to pay, when the debt is admitted to be due.' This is the whole reasoning reported in the case, and is certainly not very satisfactory. It assumes that one party, who has authority to discharge, has necessarily, also, authority to charge the others ; that a virtual agency exists in each joint debtor to pay for the whole; and that a virtual agency exists by analogy to charge the whole. Now, this very position constitutes the matter in controversy. It is true, that a payment by one does enure for the benefit of the whole ; but this arises not so much from any virtual agency for the whole, as by operation of law ; for the payment extinguishes the debt ; if such payment were made after a positive refusal or prohibition of the other joint debtors, it would still operate as an extinguishment of the debt, and the creditor could no longer sue them. In truth, he who pays a joint debt, pays to discharge himself; and so far from binding the others conclusively by his act, as virtually theirs also, he cannot recover over against them, in contri- bution, without such payment has been rightfully made, and ought to charge them. When the statute has run, against a joint debt, the reasonable pre- sumption is, that it is no longer a subsisting debt ; and therefore, there is no ground on which to raise a virtual agency to pay that which is not admitted to exist. But if this were not so, still there is a great difference between" creating a virtual agency, which is for the benefit of all, and one which is onerous and prejudicial to all. The one is not a natural or necessary conse- quence from the other. A person may well authorize the payment of a debt for which he is now liable, and yet refuse to authorize a charge, where there at present exists no legal liability to pay. Yet, if the principle of Lord Mansfield be correct, the acknowledgment of one joint debtor will bind all the rest, even though they should have utterly denied the debt at the time when such acknowledgment was made. The doctrine of Whitcomb v. Whiting has been followed in England in subsequent cases, and was resorted to in a strong manner, in Jackson v. Fairbank, 2 H. Bl. 340, where the ad- mission of a creditor to prove a debt, on a joint and several note under a CHAP, v.] HEARSAY. 161 that business, is the act of the principal, whom he repre- sents. And, " where the acts of the agent will bind the bankruptcy, and to receive a dividend, was held sufficient to charge a solvent joint debtor, in a several action against him, in which he pleaded the statute, as an acknowledgment of a subsisting debt. It has not, however, been received without hesitation. In Clark v. Bradshaw, 3 Esp. 155, Lord Ken- yon; at Msi Prius, expressed some doubts upon it ; and the cause went off on another ground. And in Bradram v. Wharton, 1 Barn. & Aid. 463, the' case was very much shaken, if not overturned. Lord EUenborough, upon that occasion used language, from which his dissatisfaction with the whole doctrine may be clearly inferred. ' This doctrine,' said he, ' of rebutting the statute of limitations, by an acknowledgment other than that of the party himself, began with the case of Whitcomb v. Whiting. By that decision, where, however, there was an express acknowledgment, by an actual pay- ment of a part of the debt "by one of the parties, I am bound. But that case j was full of hardships ; for this inconvenience may follow from it. Suppose ''• a person liable jointly with thirty or forty others, to a debt ; he may have | actually paid it, he may h^/Ve had in his possession the document, by which ' that payment was proved, but may have lost his receipt. Then, though this was one of the very cases which this statute was passed to protect, he may still be bound, and his liability be renewed, by a random acknowledgment made by some one of the thirty or forty others, who may be careless of what mischief he is doing, and who may even not know of the payment which has i been made. Beyond that case, therefore, I am not prepared to go, so as to deprive a party of the advantage given him by the statute, by means of an implied acknowledgment.' In the American Courts, so far as our researches have extended, few cases have been litigated upon this question. In Smith V. Ludlow, 6 Johns. 268, the suit was brought against both partners, and one of them pleaded the statute. Upon the dissolution «f the partnership, pubUc notice was given that the other partner was authorized to adjust all accounts; and an account signed by him, after such advertisement, and within six years, was introduced. It was also proved, that the plaintiff called on the partner, who pleaded the statute, before the commencement of the suit, and requested a settlement, and that he then admitted an account, dated in 1797, to have been made out by him; that he thought the account had been settled by the other defendant, in whose hands the books of partnership were ; and that he would see the other defendant on the subject, and communicate the result to the plaintiff. The Court held that this was sufficient to take the case out of the statute ; and said, that without any express authority, the confes- sion of one partner, after the dissolution, will take a debt out of the statute. The acknowledgment will not, of itself, be evidence of an original debt; for that would enable one party to bind the other in new contracts. But the original debt being proved or admitted, the confession of one will bind the other, so as to prevent him from availing himself of the statute. This is 14* 162 LAW OF BVIDBNCB. fPAET II. principal, there, his representations, declarations, and admis- sions, respecting the subject-matter, will also bind him, if evident, from the cases of Wbitcomb v. Whiting, and Jackson v. Fairbank ; and it results necessarily from the power given to adjust accounts. The Court also thought the acknowledgment of the partner, setting up the stat- tute, was sufficient of itself to sustain the action. This case has the pecu- liarity of an acknowledgment made by both partners, and a formal acknowl- edgment by the partner who was authorized to adjust the accounts after the dissolution of the partnership. There was not, therefore, a virtual, but an express and notorious agency, devolved on him, to settle the account. The correctness of the decision cannot, upon the general view taken by the Court, be questioned. In Roosevelt v. Marks, 6 Johns. Ch. 266, 291, Mr. Chancellor Kent admitted the authority of Whitcomb v. Whiting, but denied that of Jackson v. Fairbank, for reasons which appear to us solid and satis- factory. Upon some other cases in New York, we shall have occasion here- after to comment. In Hunt v. Bridgham, 2 Pick. 881, the Supreme Court of Massachusetts, upon the authority of the cases in Douglas, H. Black- stone, and Johnson, held, that a partial payment by the principal debtor on a note, took the case out of the statute of limitations, as against a surety. The Court do not proceed to any reasoning to establish the principle, con- sidering it as the result of the authorities. Shelton v. Cocke, 3 Munford, 191, is to the same effect; and contains a mere annunciation of the rule, without any discussion of its principle. Simpson v. Morrison, 2 Bay, 533, proceeded upon a broader ground, and assumes the doctrine of the case in 1 Taunt. 104, hereinafter noticed, to be correct. Whatever may be the' just inffuence of such recognitions of the principles of the English cases, in other States, as the doctrine is not so settled in Kentucky, we must resort to such recognition only as furnishing illustrations to assist our reasoning, and decide the case now as if it had never been decided before. By the general law of partnership, the act of each partner, during the continuance of the partnership, and within the scope of its objects, binds all the others. It is considered the act of each and of all, resulting from a general and mutual delegation of authority. Each partner may, therefore, bind the partnership ■ by his contracts in the partnership business ; but he cannot bind it by any contracts beyond those limits. A dissolution, however, puts an end to the authority. By the force of its terms, it operates as a revocation of all power to create new contracts ; and the right of partners as such, can extend no further than to settle the partnership concerns already existing, and to dis- tribute the remaining funds. Even this right may be qualified, and re- strained, by the express delegation of the whole authority to one of the part- ners. Ttie question is not, however, as to the authority of a partner after the dissolution to adjust an admitted and subsisting debt; we mean, admit- ted by the whole partnership or unbarred by the statute ; but whether he can, by his sole act, after the action is barred by lapse of time, revive it CHAP, v.] HEARSAY. 163 made at the same time, and constituting part of the res gestce." ^ They are of the nature of original evidence, and against all the partners, without any new authority communicated to him for this purpose. We think the proper resolution of this point depends upon another, that is, whether the acknowledgment or promise is to be deemed a mere continuation of the original promise, or a new contract, springing out of, and supported by, the original consideration. We think it is the latter, both upon principle and authority ; and if so, as after the dis- solution no one partner can create a new contract, binding upon the others, his acknowledgment is inoperative and void, as to them. There is some con- fusion in the language of the books, resulting from a want of strict attention to the distinction here indicated. It is often said, that an acknowledgment revives the promise, when it is meant, that it revives the debt or cause of action. The revival of a debt supposes that it has once been extinct and gone ; that there has been a period in which it had lost its legal use and valid- ity. The act which revives it, is what essentially constitutes its new being, and is inseparable from it. It stands not by its original force, but by the new promise, which imparts vitality to it. Proof of the latter is indispensa- ble, to raise the assumpsit, on which an action can be maintained. It was this view of the matter which first created a doubt, whether it was not neces- sary that a new consideration should be proved to support the promise, since the old consideration was gone. That doubt has been overcome ; and it is now held, that the original consideration, is sufficient, if recognized to up- hold the new promise, although the statute cuts it off, as a support for the old. What, indeed, would seem to be decisive on this subject, is, that the new promise, if qualified or conditional, restrains the rights of the party to its own terms ; and if he cannot recover by those terms, he cannot recover at all. If a person promise to pay, upon condition that the other do an act, per- formance must be shown, before any title accrues. If the declaration lays a promise by or to an intestate, proof of the acknowledgment of the debt by or to his personal representative will not maintain the writ. . Why not, since it establishes the continued existence of the debt V The plain reason is, that the promise is a new one, by or to the administrator himself, upon the orig- inal consideration ; and not a revival of the original promise. So, if a man promises to pay a preexisting debt, barred by the statute, when he is able, or at a future day, his ability must be shown, or the time must be passed before the action can be maintained. Why ? Because it rests on the new promise, and its terms must be complied with. We do not here speak of the form of alleging the promise in the declaration ; upon which, perhaps, there has been a diversity of opinion and judgment; but of the fact itself, whether the promise ought to be laid in one way or another, as an absolute, or as a conditional promise ; which may depend on the rules of pleading. This very 1 Story on Agency, § 134-137. 164 LAW OF EVIDENCE. [PAKT II. not of hearsay ; the representation or statement of the agent, in such cases, being the ultimate fact to be proved, and not point came before the twelve Judges, in the case of Heyhng v. Hastings, 1 Ld. Raym. 389, 421, in the time of Lord Holt. There, one of the points was, 'whether the acknowledgment of a debt within six years would amount to a new promise, to bring it out of the statute ; and they were all of opinion that it would not, but that it was evidence of a promise.' Here, then, the Judges manifestly contemplated the acknowledgment, not as a continuation of the old promise, but as evidence of a new promise ; and that it is the new promise which takes the ease out of the statute. Now, what is a new promise but a new contract ; a contract to pay, upon a preexisting consideration, ' which does not of itself bind the party to pay independently of the con- tract ? So, in Boydell v. Drummond, 2 Campb. 157, Lord Ellenborough . with his characteristic precision, said: 'If a man acknowledges the existence of a debt, barred by the statute, the law has been supposed to raise a new promise to pay it, and thus the remedy is revived.' And it may be affirmed, that the general current of the English, as well as the American authorities, conforms to this view of the operation of an acknowledgment. In Jones v. Moore, 5 Binney, 573, Mr. Chief Justice Tilghman went into an elaborate examination of this very point ; and came to the conclusion, from a review of all the cases, that an acknowledgment of the debt can only be considered, as evidence of a new promise ; and he added, ' I cannot comprehend the meaning of reviving the old debt in any other manner, than by a new prom- ise.' There is a class of cases, not yet adverted to, which materially illus- trates the right and powers of partners, after the dissolution of the partner- ship, and bears directly on the point under consideration. In Hackley v. Patrick, 3 Johns. 536, it was said by the Court, that ' after a dissolution of the partnership, the power of one party to bind the others wholly ceases. There is no reason why this acknowledgment of an account should bind his copartners, any more than his giving a promissory note, in the name of the firm, or any other act.' And it was therefore held, that the plaintiff must produce further evidence of the existence of an antecedent debt, before he could recover ; even though the acknowledgment was by a partner, author- ized to settle all the accounts of the firm. This doctrine was again recog- nized by the same Court, in Walden v. Sherburne, 15 Johns. 409, 424, although it was admitted, that in Wood v. Braddick, 1 Taunt. 104, a differ- ent decision had been had in England. If this doctrine be well founded, as we think it is; it furnishes a strong ground to question the efficacy of an acknowledgment to bind the partnership for any purpose. If it does not I establish the existence of a debt against the partnership, why should it be evidence against it at all ? If evidence, aliunde, of facts within the reach of the statute, as the existence of a debt, be necessary before the acknowledg- ment binds, is not this letting in all the mischiefs against which the statute intended to guard the parties, viz. : the introduction of stale and dormant CHAP. V.l HEARSAY. 165 an admission of some other fact.^ But, it must be remem- bered, that the admission of the agent cannot always be demands, of long standing, and of uncertain proof? If the acknowledgment, per se, does not bind the other partners, where is the propriety of admitting proof of an antecedent debt, extinguished by the statute as to them, to be revived without their consent ? It seems difficult to find a satisfactory reason why an acknowledgment should raise a new promise, when the considera- tion, upon which alone it rests, as a legal obligation, is not coupled with it in such a shape as to bind the parties ; that the parties are not bound by the admission of the debt, as a debt, but are bound by the acknowledgment of the debt, as a promise, upon extrinsic proof. The doctrine in 1 Taunt. 104, stands upon a clear, if it be a legal, ground ; that, as to the things past, the \ partnership continues, and always must continue, notwithstanding the disso- i lution. That, however, is a matter which we are not prepared to admit, and ( constitutes the very ground now in cqntroversy. The light in which we ' are disposed to consider this question is, that after a dissolution of a partner- ship, no partner can create a .cause of action against the other partners, ex- cept by a new authority communicated to him for that purpose. It is wholly immaterial, what is the consideration which is to raise such cause of action ; whether it be a supposed preexisting debt of the partnership, or any auxil- iary consideration, which might prove beneficial to them. Unless adopted by them, they are not bound by it. When the statute of limitations has once run against a debt, the cause of action against the partnership is gone. The acknowledgment, if it is to operate at all, is to create a new cause of action ; to revive a debt which is extinct ; and thus to give an action, which has its life from the new promise implied by law from such an acknowledg- ment, and operating and limited by its purport. It is, then, in its essence, the creation of a new right, and not the enforcement of an old one. We think, that the power to create such a right does not exist after a dissolution of the partnership in any partner." It is to be observed, that in this opinion the Court were not unanimous ; and that the learned Judge declares that the majority were " principally, though not exclusively, influenced by the course of decisions in Kentucky," where the action arose. A similar view of the question has been taken by the Courts of Pennsylvania, both before and since the decision of Bell v. Morrison ; Levy v. Cadet, 17 Serg. & Raw. 127; Searight v. Craighead, 1 Penn. 135 ; and it has been followed by the Courts of Indiana. Yandes V. Lefavour, 2 Blackf. 371. Other Judges have viewed such admissions not as going to create a new contract, but as mere acknowledgments of the con- tinued existence of a debt previously created, thereby repelling the presump- tion of payment, resulting from lapse of time, and thus taking the case out of the operation of the statute of limitations. To this effect are White v. 1 1 Phil. Evid. 381. 166 LAW OF EVIDENCE. [PART H, assimilated to the adrflission of the principal. The party's own admission, whenever made, may be given in evidence against him ; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency in regard to a transaction then depending et dum fervet opus. It is because it is a verbal act, and part of the res gestce, that it is admissible at all ; and therefore, it is not necessary to call the agent himself to prove it ; ^ but wherever what he did is admissible in evidence, there it is competent Hale, 3 Pick. 291; Martin v. Root, 17 Mass. 222, 227; Cady v. Shepherd, 11 Pick. 400; Vinal v. Burrill, 16 Pick. 401 ; Bridge v. Gray, 14 Pick. 61 ; Patterson v. Choate, 7 Wend. 441 ; Hopkins v. Banks, 7 Cowen, 650; Aus- tin V. Bostwick, 9 Conn. 496 ; Greenleaf v. Quincy, 3 Fairf. 11 ; Mclntire V. Oliver, 2 Hawks, 209 ; Ward u.. Howell, 5 Har. & Johns. 60; Fisher v. Tucker, 1 MoCord, Ch. R. 175; Wheelock v. Doolittle, 3 Washb. Vt. R. 440. In some of the cases a distinction is strongly taken between admis- sions, which go to establish the original existence of the debt, and those which only show that it has never been paid, but still remains in its origi- nal force ; and it is held, that before the admission of a partner, made after the dissolution, can be received, the debt must first be proved, aliunde. See Owings y. Low, 5 Gill. & Johns. 184, 144; Smith v. Ludlow, 6 Johns. 267; Patterson v. Choate, 7 Wend. 441, 445 ; Ward v. Howell ; Fisher v. Tucker; Hopkins v. Banks; Vinal v. Burrill, ubi supra; Shelton v. Cocke, 3 Munf. 197. In Austin v. Bostwick, the partner making the admission had become insolvent ; but this was held to make no difference, as to the admissibility of his declaration. A distinction has always been taken between admis- sions by a partner after the dissolution, but before the statute of limitations has attached to the debt, and those made afterwards ; the former being held receivable, and the latter not. Fisher v. Tucker, 1 McCord, Ch. R. 175. And see Scales v. Jacob, 3 Bing. 638 ; Gardner v. McMahon, 3 Ad. & El. 566, N. S. See further on the general doctrine, /)osJ, § 174, note. In all cases, where the admission, whether of a partner or other joint contractor, is received against his companions, it must have been made in good faith. Coit V. Tracy, 8 Conn. 268. See also Chardon v. Oliphant, 2 Const. R. 685 ; cited in CoUyer on Partn. 236, n. (2d Am. ed.) It may not be useless to observe, that Bell v. Morrison was cited and distinguished, partly as founded on the local law of Kentucky, in Parker u. Merrill, 6 Greenl. 47, 48 ; and in Greenleaf u. Quincy, 3 Fairf. 11 ; and that it was not cited in the cases of Patterson v. Choate, Austin v. Bostwick, Cady v. Shepherd, Vinal v. Burrill, and Yandes v. Lefavour, though these were decided subsequent to its publication. 1 Doe V. Hawkins, 2 Ad. & El. 212, N. S. ; Sauniere v. Wode, 3 Har- rison's R. 299. CHABI v.] HEARSAY. 167 to prove what he said about the act while he was doing it ;^ and it follows, that where his right to act in the particular matter in question has ceased, the principal can no longer be affected by his declarations, they being mere hearsay.^ 1 Garth V. Howard, 8 Bing. 451; Fairlie v. Hastings, 10 Ves. 123, 127; The Mechanics' Bank of Alexandria v. The Bank of Columbia, 5 Wheat. 336, 337; Langhorn v. AUnutt, 4 Taunt. 519, per Gibbs, J.; Hannay v. Stewart, 6 Watts, 487, 489 ; Stockton v. Demuth, 8 Watts, 39 ; Story on Agency, 126, 129, note (2) ; Woods v. Banks, 14 N.' Hamp. 101 ; Cooley V. Norton, 4 Gush. 93. In a case of libel for damages, occasioned by collision of ships, it was held that the admission of the master of the ship proceeded against might well be articulated in the libel. The Manchester, 1 W. Rob. 62. But it does not appear, in the report, whether the admission was made at the time of the occurrence or not. [The declarations of the master con- cerning the contract of the steamer, are admissible in a suit against the own- ers. The Enterprise, 2 Curtis, C. C. 317.] The question has been discussed, whether there is any substantial distinction between a written entry and an oral declaration by an agent, of the fact of his having received a particular rent for his employer. The case was one of a sub-agent, employed by a steward to collect rents, and the declaration offered in evidence was, " M. N. paid rae the half year's rent, and Here it is." Its admissibility was argued, both as a declaration against interest, and also as made in the course of dis- charging a duty ; and the Court inclined to admit it, but took time for ad- visement. Fursdon v. Clogg, 10 M. & W. 572 ; Infra, § 149. See also Regina v. Hall, 8 C. & P. 358 ; Allen v. Denstone, Id. 760 ; Lawrence v. Thatcher, 6 C. & P. 669 ; Bank of Munroe .-. Field, 2 Hill, R. 445 ; Doe V. Hawkins, 2 Ad. & El. 212, N. S. Whether the declaration or admission of the agent made in regard to a transaction already past, but while his agency for similar objects still continues, will bind the principal, does not appear to have been expressly decided ; but the weight of authority is in the negative. See the observations of Tindal, C. J., in Garth v. Howard, supra. See also Mortimer v. MoCallan, 6 M. & W. 58, 69, 73 ; Haven v. Brown, 7 Greenl. 421, 424; Thalhimer v. Brinkerhoff, 4 Wend. 394; City Bank of Baltimore v. Bateman, 7 Har. & Johns. 104 ; Stewartson v. Watts, 8 Watts, 392 ; Betham v. Benson, Gow, R. 45, 48, n. ; Baring v. Clark, 19 Pick. 220 ; Parker v. Green, 8 Met. 142, 143 ; Plumer v. Briscoe, 12 Jur. 351 ; 11 Ad. & El. 46, N. S. ; [fiurnham v. Ellis, 39 Maine, 319.] Where > the fraudulent representations of the vendor are set up in defence of an \ action for the price of land, the defence may be maintained by proof of such i representations by the vendor's agent who effected the sale ; but it is not competent to inquire as to his motives or inducemerrts for making them. ' Hammatt v. Emerson, 14 Shepl. 308. a Reynolds v. Rowley, 3 Rob. Louis. R. 201 ; Stiles v. The Western Rail- road Co. 8 Met. 44. [The declarations of a son while employed in perform- 168 LAW OF EVIDENCE. . [PAM II. i( § 114. It is to be observed, that the rule admitting the declarations of the agent, is founded upon the legal identity of the agent and the principal ; and therefore they bind only so far as there is authority to make them.^ Where this authority is derived by implication from authority to do a certain act, the declarations of the agent, to be admissible, must be part of the res gestce? An authority to make an admission is not necessarily to be implied from an authority previously given in respect to the thing to which the admis- sion relates.^ Thus it has been held,* that the declarations of the bailee of a bond, intrusted to him by the defendant, were not admissible in proof of the execution of the bond by the bailor, nor of any other agreements between the plaintiff and defendant respecting the subject. The res gestce consisted in the fact of the bailment, and its nature ; and on these points only were the declarations of the agent identified with those of the principal. As to any other facts in the knowledge of the agent, he must be called to testify, like any other witness.^ ing a contract for his services, made by him as agent for his father, are not admissible in evidence to prove the terms of the contract. Corbin v. Adams, 6 Cush. 93. See Printup v. Mitchell, 1 7 Geo. 558 ; Covington, &c. E. R. Co. V. Ingles, 15 B. Mon. 637 ; Tuttle v. Brown, 4 Gray, 457, 460.] 1 [Thus where the cashier of a bank, being inquired of by the surety upon a note, said, that the note had been paid, and thereupon the surety released property which he held to indemnify himself for any liability on the note, when in fact the note had not been paid, it was held that these statements of the cashier were not within his authority, and were inadmissible against the bank. Bank u. Steward, 37 Maine, 519. See also Runk v. Ten Eyck, 4 Zabr. 756.] 2 [By being part of the res gestce, is meant that such declarations are evi- dence only where they relate to the identical contract that is the, matter in controversy. Dome v. South work Man. Co. 11 Cush. 205; Fogg ». Child, 13 Barb. 246.] 3 Phil. & Am. on Evid. 402. As to the evidence of authority inferred from circumstances, see Story on Agency, § 87-106, 259, 260. 4 Faiilie v. Hastings, 10 Ves. 123. 5 Masters v. Abraham, 1 Esp. 375, (Day's ed.) and note (1) ; Story on Agency, § 135-143 ; Johnston v. Ward, 6 Esp. 47. [But the declarations of a professed agent, however publicly made, and although accompanied by acts, as by an actual signature of the name of the principal, are not competent w CHAP, v.] HEARSAY. 169 § 115. It is upon the same ground that certain entries, made by third persons, are treated as original evidence. Entries by third persons are divisible into two classes : Jirst, those which are made in the discharge of official duty, and in the course of professional employment; and, secondly, mere private entries. Of these latter we shall hereafter speak. In regard to the former class, the entry, to be admis- sible, must be one which it was the person's duty to make, or which belonged to the transaction as part thereof, or which was its usual and proper concomitant.^ It must speak only to that which it was his duty or business to do and not to extraneous and foreign circumstances.® The party making it must also have had competent knowledge of the fact, or it niust have been part of his duty to have known it; there must have been no particular motive to enter that transaction falsely, more .than any other ; and the entry must have been made at or about the time of the evidence in favor of third persons to prove the authority of the agent, when questioned by the principal. Mussey v. Beecher, 3 Cush. 517; Brigham v. Peters, 1 Gray, 145'; Trustees, &c. v. Bledsoe, 5 Ind. 133.] 1 The doctrine on the subject of contemporaneous entries is briefly but lucidly expounded by Mr. Justice Parke, in Doe d. Patteshall v. Turford, 3 B. & Ad. 890. See also Poole v. Dicas, 1 Bing. N. C. 654 ; Pickering v. Bp. of Ely, 2 Y. & C. 249 ; Regina v. Worth, 4 Ad. & EI. N. S. 132. [The book of minutes of a railroad company are admissible to prove what took place at a meeting of the stockholders of the company. Black v. Lamb, 1 Beasley, 108.] 2 Chambers v. Bernasconi, 1 C. & J. 451 ; 1 Tyrwh. 355, S. C; 1 C. Mees. & R. 347, S. C In error. This limitation has not been applied to private entries against the interest of the party. Thus, where the payee of a note against A., B., & C, indorsed a partial payment as received from B., adding that the whole sum was originally advanced to A. only ; in an action by B. against A., to recover the money thus paid for his use, the indorsement made by the payee, who was dead, was held admissible to prove not only the payment of the money, but the other fact as to the advancement to A. Davies v. Humphreys, 6 Mees. & Welsb. 153 ; Marks v. Lahee, 3 Bing. N. C. 408. And in a subsequent case it was held, that where an entry is ad- mitted as being against the interest of the party making it, it carries with it the whole statement; but that if the entry is made merely in the course of aj man's duty, then it does not go beyond those matters which it was his duty' to enter. Peroival v. Nanson, 7 Eng. Law & Eq. Rep. 638 ; 21 Law J. Rep. Exch. 1, N. S. ; 7 Exch. Rep. 1, S. C. VOL. I. 15 170 LAW OF EVIDENCE. [PAKT 11. transaction recorded. In such cases, the entry itself is admitted as original evidence, being part of the res gestm. The general interest of the party, in making the entry, to show that he has done his official duty, has nothing to do with the question of its admissibility ; ^ nor is it material whether he was or was not competent to testify personally in the case.^ If he is living, and competent to testify, it is deemed necessary to produce him.^ But if he is called as a witness to the fact, the entry of it is not thereby excluded. It is still an independent and original circumstance, to be weighed with others; whether it goes to corroborate or to impeach the testimony of the witness who made it. If the party who made the entry is dead, or, being called, has no recollection of the transaction, but testifies to his uniform practice to make all his entries truly, and at the time of each transaction, and has no doubt of the accuracy of the one in question; the entry, unimpeached, is considered sufficient, as original evidence, and not hearsay, to establish the fact in. question.* 1 Per Tindal, C. J., in Poole v. I )icas, 1 Bing. N. C. 654 ; Dixon v. Cooper, 3 Wils. 40 ; Benjamin v. Porteous, 2 H. Bl. 590 ; Williams v. Geaves, 8 C. & P. 592 ; Augusta v. Windsor, 1 Appleton, K. 31 7. And see Doe «. Witt- comb, 15 Jur. 778. 3 Gleadow v. Atkin, 1 Cromp. & Mees. 423, 424 ; 3 Tyrw. 302, 303, S. C. ; Short V. Lee, 2 Jac. & Walk. 489. 3 Nichols V. Webb, 8 Wheat. 326 ; Welch v. Barrett, 15 Mass. 380 ; Wil- bur «. Selden, 6 Cowen, 162; Farmers' Bank v. Whitehill, 16 S. & R. 89, 90 ; Stokes v. Stokes, 6 Martin, N. S. 351 ; Herring v. Levy, A Martin, N. S. 383 ; Brewster v. Doan, 2 Hill, N. Y. Rep. 537; Davis v. Fuller, 12 Verm. 178. 4 Bank of Monroe v. Culver, 2 Hill, 531 ; New Haven County Bank v. Mitchell, 15 Conn. R. 206 ; Bank of Tennessee v. Cowen, 7 Humph. 70. See infra, §§ 436, 437, note (4.) [The protest of a notary-public, authenti- cated in the usual way by his signature and offiuial seal, found among his pa- pers after his death, is good secondary evidence. Porter v. Judson, 1 Gray, 1 75.] But upon a question of the infancy of a Jew, where the time of his circumcision, which by custom is on the eighth day after his birth, was pro- posed to be shown by an entry of the fact, made by a deceased Rabbi, whose duty it was to perform the office and to make the entry ; the entry was held not receivable. Davis v. Lloyd, 1 Car.,& Kir. 275. Perhaps because it was not made against the pecuniary interest of the Rabbi. See infra, § 147. CHAP. VJ] HEARSAY. 171 § 116. One of the earliest reported cases, illustrative of this subject, was an action of assumpsit, for beer sold, and delivered, the plaintiff being a brewer. The evidence given to charge the defendant was, that, in the usual course of the plaintiflf's business, the draymen came every night to the clerk of the brewhouse, and gave him an account of the beer delivered during the day, which he entered in a book kept for that purpose, to which the draymen set their hands ; and this entry, with proof of the drayman's handwriting, and of his death, was held sufficient to maintain the action.^ In another case,^ before Lord Kenyon, which was an action of trover for a.- watch, where the question was, whether the defendant had delivered it to a third person, as the plaintiff had directed; an entry of the fact by the defendant himself in his shop-book, kept for that purpose, with proof that such was the usual mode, was held admissible in evidence. One of the shopmen had sworn to the delivery, and hi? entry was offered to corroborate his testimony ; but it was admitted as competent original evidence in the cause. So, in another case, where the question was upon the precise day of a per- son's birth, the account-book of the surgeon, who attended his mother on that occasion, and in which his professional services and fees were charged, was held admissible, in proof of the day of the birth.^ So where the question was, whether 1 Price ». Lord Torrington, 1 Salk. 285; 2 Ld. Raym. 873, S. C. ; 1 Smith's Leading Cases, 139. But the Courts are not disposed to carry the doctrine of this case any farther. 11 M. & W. 775, 776. Therefore, where the coals sold at a mine were reported daily by one of the workmen to the foreman, who, not being able to write, employed another person to enter the sales in a book ; it was held, the foreman and the workman who reported the sale, both being dead, that the book was not admissible in evidence, in an action for the price of the coals. Brain v. Preece, 11 M. & W. 773. 2 Digby V. Stedman, 1 Esp. 328. 3 Higham !7. Ridgway, 10 East, 109. See also 2 Smith's Leading Cases, 183-197, note, and the comments of Bayley, B., and of Vaughan, B., on this case, in Gleadow v: Atkin, 1 Crorapt. & Mees. 410, 423, 424, 427, and of Professor Parke, in the London Legal Observer for June, 1832, p. 229. It will be seen, in that case, that the fact of the surgeon's performance of the service charged was abundantly proved by other testimony in the cause ; and that nothing remained but to prove the precise time of performance ; 172 LAW OF EVIDENCE, [PAKT II. a notice to quit had been served upon the tenant, the indorse- ment of service upon a copy of the notice, by the attorney, who served it, it being shown to be the course of business in his office to preserve copies of such notices, and to indorse the service thereon, was held admissible in proof of the fact of service.! Upon the same ground of the contemporaneous character of aa entry made in the ordinary course of business, the books of the messenger of a bank, and of a notary-public, to prove a demand of payment from the maker, and notice to the indorser of a promissory note, have also been held admissible.2 The letter-book of a merchant, party in the cause, is also admitted as primd facie evidence of the con- tents of a letter addressed by him to the other party, after notice to such party to produce the original ; it being the habit of merchants to keep such a book.^ And, generally, contemporaneous entries, made by third persons, in their a fact in which the surgeon had no sort of interest. But if it were not so, it is not perceived what difference it could have made, the principle of ad- missibility being the contemporaneous character of the entry, as part of the res gestae. See also Herbert v. Tuckal, T. Raym. 84 ; Augusta v. Windsor, 1 Appleton, R. 317. 1 Doe V. Turford, 3 Barn. & Ad. 890 ; Champneys v. Peck, 1 Stark. R. 326 ; Rex v. Cope, 7 C. & P. 720. [Where such an indorsement of service had been admitted to prove the fact of service of notice, the person who made the service and the indorsement being dead, parol declarations of his, contradicting the indorsement, were held inadmissible. Stapylton v. Clough, 22 Eng. Law and Eq. R. 275.] 2 Nichols V. Webb, 8 Wheat. 326; Welch v. Barrett, 15 Mass. R. 380; Poole V. Dicas, 1 Bing. N. C. 649; Halliday v. Martinett, 20 Johns. 168; Butler V. Wright, 2 Wend. 369 ; Hart v. Williams, Id. 513 ; Nichols v. Gold- smith, 7 Wend. 160; New Haven Co. Bank v. Mitchell, 15 Conn. 206; Sheldon v. Benham, 4 Hill, N. Y. Rep. 123. [In an action against an in- fant for money paid by the plaintiff to a third person at the infant's request, for articles furnished the infant by such third person, the defence of infancy being set up, the books of account and the testimony of such third person are adnjissible to show that the articles furnished the infant were necessa- ries. Swift V. Bennett, 10 Cush. 436, 439.] 3 Pritt V. Fairclough, 3 Campb. 305 ; Hagedorn v. Reid, Id. 377. The letter-book is also evidence that the letters copied into it have been sent. But it is not evidence of any other letters in it, than those which the adverse party has been required to produce. Sturge v. Buchanan, 2 P. & D. 573; 10 Ad. & El. 598, S. C. CHAP, v.] HEARSAY. 173 own books, in the ordinary course of business^ the matter] being within the peculiar knowledge of the party making the entry, and there being no apparent and particular motive j to pervert the fact, are received as original evidence ;^ though ] the person who made the entry has no recollection of the fact at the time of testifying ; provided he swears that he should not have made it, if it were not true.^ The same principle has also been applied to receipts, and other acts contemporaneous with the payment, or fact attested.® § 117. The admission of the party's own shop-hooks, in proof of the delivery of goods therein charged, the entries having been made by his clerk, stands upon the same prin- ^ ciple, which we are now considering. The books roust have been kept for the purpose ; and the entries must have been j made contemporaneous with the delivery of the goods, and by the person whose duty it was, for the time being, to make them. In such cases the books are held admissible, as evi- dence of the delivery of the goods therein charged, where the nature of the subject is such as not to render better evidence attainable.* 1 Doe V. Turford, 3 B. & Ad. 890, per Parke, J.; Doe o. Robson, 15 East, 32; Goss V. Watlington, 3 Br. & B. 132; Middleton v. Melton, 10 B. & Cr. 317; Marks v. Lahee, 3 Bing. N. C. 408, 420, per Parke, J. ; Poole v. Dicas, 1 Bing. N. C. 649, 653, 654; DiJw u.- Sawyer, 16 Shepl. 117. In Doe v. Vowles, 1 M. & Rob. 216, the tradesman's bill, which was rejected, was not contemporaneous with the fact done. .Haddow v. Parry, 3 Taunt. 303 ; Whitnash v. George, 8 B. & Cr. 556 ; Barker v. Ray, 2 Russ. 63, 76 ; Patton V. Craig, 7 S. & R. 116, 126 ; Farmers' Bank v. Whitehill, 16 S. & R. 89 ; Nourse v. McCay, 2 Rawle, 70 ; Clark v. Magruder, 2 H. & J. 77 ; Richard- son V. Gary, 2 Rand. 87 ; Clark v. Wilmot, 1 Y. & Col. N. S. 63. . 2 Bunker v. Shed, 8 Met. 150. 3 Sherman v. Crosby, 11 Johns. 70 ; HoUaday v. Littlepage, 2 Munf. 316; Prather v. Johnson, 3 H. & J. 487 ; Sherman v. Atkins, 4 Pick. 283 ; Car- roll V. Tyler, 2 H. & G. 54 ; Cluggage v. Swan, 4 Binn. 150, 154. But the letter of a third person, acknowledging the receipt of merchandise of the plaintiff, was rejected, in an action against the party, who had recommended him as trustworthy, in Longenecker v. Hyde, 6 Binn. 1 ; and the receipts of living persons were rejected in Warner v. Price, 3 Wend. 897 ; Cutbush v. Gilbert, 4 S. & R. 551 ; Spargo v. Browrf, 9 B. & C. 935. See infra, § 120. ; 4 Pitman v. Maddox, % Salk. 690; Ld. Raym. 732, S. C; Lefebure u. 15 * 174 LAW OE EVIDENCE. [PART II. § 118. In the United States, this principle has been carried farther and extended to entries made by the party himself, in his own shop-books.^ Though this evidence has sometimes Worden, 2 Ves. 54, 55 ; Glynn v. The Bank of England, Id. 40 ; Sterret v. Bull, 1 Binn. 234. See also Tail on Evid. p. 276. An interval of one day, jbetween the transaction and the entry of it in the book, has been deemed a jvalid objection to the admissibility of the book in evidence. Walter v. Boll- man, 8 Watts, 544. But the law fixes no precise rule as to the moment when the entry ought to be made. It is enough if it be made " at or near the time of the transaction." Curren v. Crawford, 4 S. & R. 3, 5. There- fore, where the goods were delivered by a servant during the day, and the entries were made by the master at night, or on the following morning, from the memorandums made by the servant, it was held sufficient. Ingraham v. Bockius, 9. S. & R. 285. But such entries, made later than the succeeding day, have been rejected. Cook v. Ashmead, 2 Miles R. 268. Where daily memoranda were kept by workmen, but the entries were made by the employer sometimes on the day, sometimes every two or three days, and one or two at longer intervals, they were admitted. Morris c. Briggs, 3 Cush. 342. [See also Barker v. Haskell, 9 Cush. 218 ; Hall v. Glidden, 39 Maine, 445. But see Kent v. Garvin, 1 Gray, 148.] W^hether entries transcribed from a slate, or card, into the book, are to be deemed original entries, is not universally agreed. In Massachusetts, they are admitted. Faxon v. Hollis, 13 Mass. 427; [Smith u. Sanford, 12 Pick. 139; Barker v. Haskell, 9 Cush. 218.] In Pennsylvania, they were rejected, in Ogden V. Miller, 1 Browne, 14,7 ; but have since been admitted, where they were transcribed forthwith into the book ; Ingraham v. Bockius, 9 S. & R. 285 ; Patton V. Ryan, 4 Rawle, 408 ; Jones 17. Long, 3 Watts, 325 ; and not later, in the case of a mechanic's charges for'his work, than the evening of the second day. Hartly v. Brooks, 6 Whart. 189. But where several inteiv mediate days elapsed before they were thus transcribed, the entries have been rejected. Forsythe . The American Bank, 6 Pick. 340. 5 Lipscombe v. Holmes, 2 Campb. 441. 288 LAW OF EVIDENCE. [PAET 11. the Court has jurisdiction of the matter;^ that the contract described is rightly set forth, and was duly executed;^ that it has been broken in the manner and to the extent declared;^ and if it was a case of goods sold by sample, that they agreed with the sample.* In other words, the payment of money into Court admits conclusively every fact which the ,pla,intifF would be obliged to prove in order to recover that money.^ But it admits nothing beyond that. If, therefore, the contract is illegal, or invalid, the payment of money into Court gives it no validity ; and if the payment is general, and there are several counts, or contracts, some of which are legal and others not, the Cgurt will apply it to the former.^ So, if there are two inconsistent counts, on the latter of which the money is paid into Court, which is taken out by the plaintiff, the defendant is not entitled to show fhis to the Jury, in order to negative any allegation in the first count.^ The service of a summons to show cause why the party should not be permitted to pay a certain sum into Court, and a fortiori, the entry of a rule or order for that purpose, is also an admission that so much is due.^ 1 Miller V. Williams, 5 Esp. 19, 21. 2 6utteridge v. Smith, 2 H. Bl. 374; Israel u. Benjamin, 3 Campb. 40; Middleton v. Brewer, I'eake's Cas. 15 ; Randall v. Lynch, 2 Campb. 352, 357 ; Cox D. Brain, 3 Taunt. 95. " 3 Dyer v. Ashton, 1 B. & C. 3. 4 Leggatt V. Cooper, 2 Stark. E. 103. 5 Dyer v. Ashton, 1 B. & C. 3 ; Stapleton v. Nowell, 6 M. & W. 9 ; Archer v. English, 2 Scott, jST. S. 156 ; Archer v. Walker, 9 Dowl. 21. And see Story w. Finnis, 3 Eng. L. & Eq. R. 548 ; Sohregdr d. Garden, 16 Jur. 568; [Bacon ti. Charlton, 7 Cush. 581, 583. And where the declara- tion contains more than one count, and a part only of the sum demanded is paid into Court without specification as to which of the counts it is to be applied, such payment is an admission only that the defendant owes the plaintiff the sum so paid on some one, or several of the counts, but it is not an admission of any indebtedness under any one count, nor of a liability on all of theiu. Hubbard v. Knous, 7 Cush. 556, 559 ; Kingham ». Robins, 5 Mees. & "Welsh. 94 ; Archer v. English, 1 Man. & Grang. 873.] 6 Ribbans w. Criekett, 1 B. & P. 264 ; Hitchcock v. Tyson, 2 Esp. 481, note. t Gould V. Oliver, 2 M. & Gr. 208, 233, 234 ; Montgomery v. Richardson, 5 C. & P. 247. 8 Williamson v. Henley, 6 Bing. 299. CHAP. XI.] OF ADMISSIONS. 289 § 206. It is only necessary here to add, that where judicial admissions have been made improvidently, and by mistake, the Court will, in its discretion, relieve the party from the conse- quences of his error, by ordering a repleader,' or by discharg- ing the case stated, or the rule, or agreement, if made in Court.^ Agreements made out of Court, between attorneys, concerning the course of proceedings in Court, are equally under its control, in effect, by means of its coercive power over the attorney in all matters relating to professional char- acter and conduct. But, in all these admissions, unless a clear case of mistake is made out, entitling the party to relief, he is held to the admission ; which the Court will proceed to act upon, not as truth in the abstract, but as a formula for the solution, of the particular problem before it, namely, the case in judgment, without injury to the general administra- tion of justice.^ § 207. Admissions, whether of law or of fact, which have been acted vpon by others, are conclusive against the party making them, in all cases between him and the person whose 1 " Non fatetur, qui errat, nisi jus ignoravit." Dig. lib. 42, tit. 2, 1. 2. " Si vero per errorem fuerit facta ipsa confessio, (scil. ab advoeato,) client! concessum est, errore probato, usque ad sententiam revocare." Masoard. De Probat. Vol. 1, Quaest. 7, u. 63 ; Id. i.. 19, 20, 21, 22 ; Id. Vol. 1, Concl. ZA?i, per tot. See Kohn v. Marsh, 3 Kob. Louis. R. 48. The principle, on which a party is relieved against judicial admissions made improvidently and by mistake, is equally applicable to admissions en pais. Accordingly ■where a legal liability was thus admitted, it was held that the Jury were at libei'ty to consider all the circumstances and the mistaken view under which it was made ; that the party might show that the admission made by him arose from a mistake as to the law ; and that he was not estopped by such . admission, unless the other party had been induced by it to alter his condi- tion. Newton v. Belcher, 13 Jur. 253; 18 Law J. 53, Q. B. ; 12 Ad. & El. 921, N. S. ; Newton v. Liddiard, Id. 925; Solomon v. Solomon, 2 E-elly, 18. 2 See Greeley on Evid. in Equity, p. 349-358. The Roman Law was administered in the same spirit. " Si is, cum quo Lege Aquilia agitur, con- fessus est servum occidisse, licet non occiderit, si tamen occisus sit homo, ex confesso tcuetur." Dig. lib. 42, tit. 2, 1. 4 ; Id. 1. 6. See also Van Leeu- wen's Comm. b. v. ch. 21 ; Everhardi Concil. 155, n. 3. " ConfSssus pro judicato est." Dig. ub. supr. 1. 1. VOL. I. 25 290 LAW OF EVIDENCE. [PART II, conduct he has thus influenced.^ It is of no importance whether they were made in express language to the person himself, or implied from the open and general conduct of the party. For, in the latter case, the implied declaration may be considered as addressed to every one in particular, who may have occasion to act upon it. In such cases the party is estopped, on grounds of public policy and good faith, from repudiating his own representations.^ This rule is familiarly illustrated by the case of a man cohabiting with a woman, and treating her in the face of the world as his wife, to whom in fact he is not married. Here, though he thereby acquires no rights against others, yet they may against him; and therefore, if she is supplied .with goods during such cohabita- tion, and the reputed husband is sued for them, he will not be permitted to disprove or deny the marriage.^ So, if the lands of such woman are taken in execution for the reputed husband's debt, as his own freehold in her right, he is estop- ped, by the relation de facto of husband and wife, from say- ing that he held them as her servant.* So, if a party has taken advantage of, or voluntarily acted under the bankrupt or insolvent laws, he shall not be permitted, as against per- sons, parties to the same proceedings, to deny their regularity.^ 1 See supra, § 27 ; Commercial Bank of Natchez v. -King, 3 Rob. Louis. R. 243 ; Kinney v. Farnsworth, 17 Conn. R. 355 ; Newton v. Belcher, 13 Jur. 253 ; 12 Ad. & El. 921, N. S. ; Newton v. Liddiard, Id. 925 ; [Tomp- kins V. Phillips, 12 Geo. 52. But when a party applies to another for in- formation, on which he intends to act, and which may afi'eot the interests of the other, he ought to disclose these circumstances, and if he does not, the statements made by the other will not be conclusive upon him. Hackett v. Callender, 32 Vt. 99.] 2 See supra, §§ 195, 196 ; Quick v. Staines, 1 B. & P. 208 ; Graves v. Key, 3 B. & Ad. 318 ; Straton v. Rastall, 2 T. R. 866 ; Wyatt v. Ld. Hertford, 3 East, 147. 3 Watson V. Threlkeld, 2 Esp. 637; Robinson v. Nahor, 1 Campb. 245; Munro v. De Chamant, 4 Campb. 216 ; Ryan v. Sams, 12 Ad. & El. 460, N. S. ; Supra, § 27. But where such representation has not been acted upon, namely, in other transactions of the supposed husband, or wife, they are com- petent witnesses for each other. Bathews v. Galindo, 4 Bing. 610; Wells 0. Fletcher, 5 C. & P. 12; Tufts v. Hayes, 6 New Hamp. 452. 4 DivoU V. Leadbetter, 4 Pick. 220. s Like V. Howe, 6 Esp. 20; Clarke v. Clarke, Id. 61 ; Goldie v. Gunston, CHAP. XI.] OF ADMISSIONS. 291 So also where one knowingly permits his name to be used as one of the parties in a trading firm, under such circum- stances of publicity as to satisfy a Jury that a stranger knew it, and believed him to be a partner, he is liable to such stranger in all transactions in which the latter engaged, and gave credit upon the faith of his being such partner.' On the same principle it is, that, where one has assumed to act in an official or professional character, it is conclusive evidence against him that he possesses that character, even to the rendering him subject to the penalties attached to it.^ So, also, a tenant who has paid rent, and acted as such, is not permitted to set up a superior title of a third person against his lessor, in bar of an ejectment brought by him ; for he derived the possession from him as his tenant, and shall not be received to repudiate that relation.^ But this rule does not preclude the tenant, who did not receive the possession from the adverse party, but has only attorned or paid rent to him, from showing that this was done by mistake.* This doctrine is also applied to the relation of bailor and bailee, the cases being in principle the same ;^ and also to that of 4 Campb. 381; Watson v. Wace, 5 B. & C. 153, explained in Heane v. Rogers, 9 B. & C. 587; Mercer u. Wise, 3 Esp. 219; Harmer u. Davis, 7 Taunt. 577 ; Flowei- v. Herbert, 2 Ves. 326. 1 Per Parke, J., in Dickinson v. Valpy, 10 B. & C. 128, 140, 141 ; Fox v. Clifton, 6 Bing. 779, 794, per Tindal, C. J. See also Kell v. Nainby, 10 B. & C. 20 ; Guidon v. Robson, 2 Campb. 302. 2 See supra, § 195, and oases cited in note. 3 Doe V. Pegge, 1 T. R. 759, note, per Ld. Mansfield; Cook u. Loxley, 5 T. R. 4 ; Hudson v. Sharpe, 10 East, 350, 352. 353, per Ld. Ellenborough ; Phipps V. Sculthorpe, 1 B. &. A. 50, 53 ; Cornish v. Searell, 8 B. &. C. 471, per Bayley, J. ; Doe v. Smythe, 4 M. & S. 347 ; Doe v. Austin, 9 Bing. 41 ; Fleaming v. Gooding, 10 Bing. 549 ; Jackson v. Reynolds, 1 Caines, 444; Jackson v. Soissan, 3 Johns. 499, 504 ; .Jackson v. Dobbin, Id. 223 ; Jackson V. Smith, 7 Cowen, 717; Jackson v. Spear, 7 Wend. 401. See 1 Phil, on Evid. 107. 4 Williams V. Bartholomew, 1 B. & P. 320 ; Rogers v. Pitcher, 6 Taunt. 202, 208 ; {Supra, § 25, and notes ; Elliott v. Smith, 23 Penn. State R. 131 ; Watson v. Lane, 34 Eng. Law & Eq. R. 532.] 5 Gosling V. Birnie, 7 Bing. 339 ; Phillips v. Hall. 8 Wend. 610 ; Drown V. Smith, 3 N. Hamp. 299 ; Eastman v. Tuttle, 1 Cowen, 248 ; McNeil v. Philip, 1 McCord, R. 392 ; Hawes v. Watson, 2 B. & C. 540 ; Stonard v. 292 LAW OF EVIDENCE. [PAKT II. principal and agent.^ Thus, where goods in the possession of a debtor were attached as his goods, whereas they were the goods of another person, who received them of the sheriff, in bailment for safe custody, as the goods of the debtor, with- out giving any notice of his own title, the debtor then pos- sessing other goods, which n^ight have been attached ; it was held, that the bailee was estopped to set up his own title in bar of an action by the sheriff for the goods.^ The accep- tance of a bill of exchange is also deemed a conclusive admission, against the acceptor, of the genuineness of the signature of the drawer, though not of the indorsers, and of the authority of the agent, where it was drawn by proc- uration, as well as of the legal capacity of the preceding parties to make the contract. The indorsement, also, of a bill of exchange, or promissory note, is a conclusive admis- Dunkin, 2 Campb. 344 ; Chapman v. Searle, 3 Pick. 38, 44 ; Dixon v. Hamond, 2 B. & Aid. 310 ; Jewett i-. Torry, 11 Mass. 219 ; Lyman v. Ly- man, Id. 317 ; Story on Bailments, § 102 ; Kieran v. Sanders, 6 Ad. & El. 515. But where the bailor was but a trustee, and is no longer liable over to the cestui, que trust, a delivery to the latter is a good defence for the bailee against the bailor. This principle is familiarly applied to the case of goods attached by the sheriff, and delivered for safe keeping to a person who deliv- ers them over to the debtor. After the lion of the sheriff is dissolved, he can have no action against his bailee. Whittier v. Smith, 11 Mass. 211 ; Cooper V. Mowry, 16 Mass. 8 ; Jenny v. Kodman, Id. 464. So, if the goods did not belong to the debtor,' a-nd the bailee has delivered them to the true owner. Learned v. Bryant, 13 Mass. 224 ; Fisher v. Bartlett, 8 Greenl. 122. Ogle V. Atkinson, 5 Taunt. 749, which seems to contradict the text, has been over- ruled, as to this point, by Gosling v, Birnie, supra. See also Story on Agency, § 217, note. 1 Story on Agency, § 217, and cases there cited. The agent, however, is not estopped to set up the ^us teriii in any case where the title of the princi- pal was acquired by fraud; and the same principle seems to apply to other cases of bailment. Hardman v. Wilcock, 9 Bing. 382, note. 3 Desvey v. Field, 4 Met. 381. See also Pitt v. Chappelow, 8 M. & W. 616 ; Sanderson v. CoUman, 4 Scott, N. R. 638; Heane v. Rogers, 9 B. & C. 577 ; Dezell v. Odell, 3 Hill, 215. [But it has been held that a defend- ant in an action of trover, who induced the plaintiff to believe, when de- manding the property, that it was in his possession and control, is not there- by estopped in law from proving the contrary. Jackson v. Pixley, 9 Cush. 490, 492.] GHAP. XI.] OF ADMISSIONS. 293 sion of the genuineness of the preceding signatures, as well as of the authority of the agent, in cases of procuration, and of the capacity of the parties. So, the assignment of a re- plevin bond by the sheriff is an admission of its due execu- tion and validity as a bond.^ So, where land has been dedicated to public use, and enjoyed as such, and private rights- have been acquired with reference to it, the original owner is precluded from revoking it.^ And these admissions may be pleaded by way of estoppel en pais.^ § 208. It makes no difference in the operation of this rule, whether the thing admitted was true or false ; it being the fact that it has been acted upon that renders it conclusive. Thus, where two brokers, instructed to effect insurance, wrote in reply that they had got two policies effected, which was false ; in an action of trover against them by the assured for the two policies, Lord Mansfield held them estopped to deny the existence of the policies, and said he should consider them 'as the actual insurers.* This principle has also been applied to the case of a sheriff, who falsely returned that he had taken bail.^ § 209. On the other hand, verbal admissions which have 1 Scott V. Waithman, 3 Stark. 168; Barnes v. Lucas, Ry. & M. 264; Plumer v. Biiseoe, 12 Jur. 351 ; 11 Ad. & El. 46, N. S. 2 Cincinnati v. White, 6 Pet. 439 ; Hobbs v. Lowell, 19 Pick. 405. 3 Story on Bills of Exclia;nge, §§ 262, 263 ; Sanderson i: Collman, 4 Scott, N. R. 638 ; Pitt v. Chappelow, 8 M. & W. 616 ; Taylor v. Croker, 4 Esp. 187 ; Drayton v. Dale, 2 B. & C. 293 ; Haly v. Lane, 2 Atk. 181 ; Bass. v. Clive, 4 M. & S. 13 ; Supra, §§ 195, 196, 197 ; Weakley v. Bell, 9 Watts, 273. * Harding v. Carter, Park on Ins. p. 4. See also Salem v. Williams, 8 Wend. 483 ; 9 Wend. 147, S. C. ; Chapman v. Searle, 3 Pick. 38, 44 ; Hall V. White, 3 C. & P. 136 ; Den v. Oliver, 3 Hawkes, R. 479 ; Doe v. Lambly, 2 Esp. 635 ; 1 B. & A. 650, per Lord Ellenborough ; Price v. Harwood, 3 Campb. 108 ; Stables v. Eley, 1 C. & P. 614 ; Howard v. Tucker, 1 B. & Ad. 71 2. If it is a case of innocent mistake, still, if it has been acted upon by another, it is conclusive in his favor. As, where the supposed maker of a forged note innocently paid it to a bona fide holder, he shall be estopped to recover back the money. Salem Bank v. Gloucester Bank, 17 Mass. 1, 27. • 5 Simmons v. Bradford, 15 Mass. 82 ; Eaton v. Ogier, 2 Greenl. 46. 25* 294 LAW OP EVIDENCE. [PART II. not been acted upon, and which the party may controvert, without any breach of good faith or evasion of public jus- tice, though admissible in evidence, are not held conclusive against him. Of this sort is the admission that his trade was a nuisance, by one indicted for setting it up in another place ; ^ the admission by the defendant, in an action for criminal conversation, that the female in question was the wife of the plaintiff; ^ the omission by an insolvent, in his schedule of debts, of a particular claim, which he afterwards sought to enforce by suit.^ In these, and the like cases, no wrong is done to the other party, by receiving any legal evidence showing that the admission was erroneous, and leaving the whole evidence, including the admission, to be weighed by the Jury. § 210. In some other cases, connected with the adminis- tration of public justice and of government, the admission is held conclusive, on grounds of public policy. Thus, in an action on the statute against bribery, it was held that a man who had given money to another for his vote, should not be admitted to say that such other person had no right to vote.* So, one who has officiously intermeddled with the goods of another recently deceased, is, in favor of creditors, estopped to deny that he is executor.^ Thus, also, where a ship-owner, whose ship had been seized as forfeited for breach of the revenue laws, applied to the Secretary of the Treasury for a remission of forfeiture, on the ground that it was incurred by the master ignorantly, and without fraud, and upon making 1 Rex V. Neville, Peake's Cas. 91. 2 Morris v. Miller, 4 Burr. 2057, further explained in 2 Wils. 399 ; 1 Doug. 174 ; and Bull. N. P. 28. 3 Nichols V. Downes, 1 Mood. & R. 13 ; Hart v. Newman, 3 Campb. 13. 4 Combe v. Pitt, 3 Burr. 1586, 1590 ; Rigg v. Curgenven, 2 Wils. 395. 5 Reade's case, 5 Co. 33, 34; Toller's Law of Ex'rs, 37-41. See also ' Quick V. Staines, 1 B. & P. 293. Where the owners of a stage-coach took up more passengers than were allowed by statute, and an injury was laid to have arisen from overloading, the excess beyond the statute number was held by Lord Ellenb.orough to be conclusive evidence that the accident arose from that cause. Israel i;. Clark, 4 Esp. 259. CHAP. XI.] OF ADMISSIONS. 295 oath to the application, in the usual course, the ship was, given up ; he was not permitted afterwards to gainsay it, and prove the misconduct of the master, in an action by the latter against the owner, for his. wages, on the same voyage, even by showing that the fraud had subsequently come to his knowledge.^ The mere fact that an admission was made under oath, does not seem alone to render it conclusive against the party, but it adds vastly to the weight of ihe tes- timony ; throwing upon him the burden of showing that it was a case of clear and innocent mistake. Thus, in a prose- cution under the game laws, proof of the defendant's oath, taken under the income act, that the yearly value of his estate was less than £100, was held not quite conclusive against him, though very strong evidence of the fact.^ And even the defendant's belief of a fact, sworn to in an answer in Chancery, is admissible at law, as evidence against him of the fact, though not conclusive.^ § 211. Admissions in deeds have already been considered, ' Freeman v. Walker, 6 Greenl. 68. But a sworn entry at the custom- house, of certain premises, as being rented by A, 13, and C, as partners, for the sale of beer, though conclusive in favor of the crown, is not conclusive evidence of the partnership, in a civil suit, in favor of a stranger. Ellis v. Watson, 2 Stark. K. 453. The difference between this case and that in the text may be, that in the latter the party gained an advantage to himself, which was not the case in the entry of partnership; it being only incidental to the principal object, namely, the designation of a place where an excisSr ,ble commoditj' was sold. 2 Rex V. Clarke, 8 T. R. 220. It is observable, that the matter sworn to was rather a matter of judgment than of certainty in fact. But in Thornes V. White, 1 Tyrwh. & Graug. 110, the party had sworn positively to matter of fact in his own -knowledge ; but it was held not conclusive in law against, him, though deserving of much weight with the Jury. And see Carter v. Bennett, 4 Flor. Rep. 343. 3 Doe V. Steel, 3 Campb. 115. Answers in Chancery are always admissi- ble at law against the party, but do not seem to be held strictly conclusive, merely because they are sworn to. See Bull. N. P. 236, 237; 1 Stark. Evid. 284 ; Cameron v. Lightfoot, 2 W. ^1. 1190 ; Grant v. Jackson, Peake's Cas. 203 ; Studdy v. Saunders, 2 D. & R. 347 ; De Whelpdale v. Mllburn, 5 Price, 485. 296 LAW OP EVIDENCE. [PAE,T H. in regard to parties and privies,^ between whom they are generally conclusive ; and when not technically so, they are entitled to great weight from the solemnity of their nature. But when offered in evidence by a stranger, or, as it seems, even by a party against a stranger, the adverse party is not estopped, but may repel their effect, in the same manner as though they were only parol admissions.^ § 212. Other admissions, though in writing, not having been acted upon by another to his prejudice, nor falling within the reasons before mentioned for estopping the party to gainsay them, are not conclusive against him, but are left at large, to be weighed with other evidence by the Jury. Of this sort are receipts, or mere acknowledgments, given for goods on money, whether on separate papers, or indorsed on deeds or on negotiable securities ;^ the adjustment of a loss, on a policy of insurance, made without full knowledge of all the circumstances, or under a mistake of fact, or under any other invalidating circumstances ; * and accounts rendered, such as an attorney's bill,^ and the like. So, of a bill in Chancery, which is evidence against the plaintiff of the ad- missions it contains, though very feeble evidence, so far it may be taken as the suggestion of counsel.^ 1 Supra, §§ 22, 23, 24, 189, 204. . But if the deed has not been delivered, the party is not conclusively bound. Robinson v. Cushman, 2 Denio, 149. 2 Bowman v. Rostron, 2 Ad. & El. 295, n. ; Woodward v. Larkin, 3 Esp. 286 ; Mayor of Carlisle v. Blamire, 8 East, 487, 492, 493. 3 Skaife v. Jackson, 3 B. & C. 421 ; Graves v. Key, 3 B. & A. 313 ; Stra- , ton V. Rastall, 2 T. R. 366 ; Fairmaner u. Budd, 7 Bing. 574 ; Lampon v. Corke, 5 B. & Aid. 606, 611, per Holroyd, J. ; Harden v. Gordon, 2 Mason,. 541, 561 ; Fuller v. Crittenden, 9 Conn. 401 ; Ensign v. Webster, 1 Johns. Cas. 145 ; Putnam v. Lewis, 8 Johns. 389 ; Stackpole w. Arnold, 11 Mass. 27 ; Tucker v. Maxwell, Id. 143 ; Wilkinson v. Scott, 17 Mass. 249 ; [7n/ra, § 305.] 4 Rayner v. Hall, 7 Taunt. 725 ; Shepherd v. Chewter, 1 Campb. 274, 276, note by the reporter; Adams v. Sanders, 1 M. & M. 373 ; Christian v. Coombe, 2 Esp. 469 ; Bilbie v. Lumley, 2 East, 469 ; Elting v. Scott, 2 Johns. 157. 5 Lovebridge v. Botham, 1 B. & P. 49. 6 Bull. N. P. 235 i Doe v. Sybourn, 7 T. R. 3. See Vol. 3, § 276. CHAP. XII.] OF CONFESSIONS. 297 CHAPTER XII. OF CONFESSIONS. § 213. The only remaining topic, under the general head of admissions, is that of confessions of guilt in criminal pros- ecutions, which we now propose to consider. It has already been observed, that the rules of evidence, in regard to the voluntary admissions of the party, are the' same in criminal as in civil cases. But, as this applies only to admissions brought home to the party, it is obvious that the whole sub- ject of admissions made by agents and third persons, together with a portion of that of implied admissions, can of course have very little direct application to confessions of crime, or of guilty intention. In treating this subject, however, we shall follow the convenient course pursued by other writers, distributing this branch of evidence into two classes ; namely, first, the direct confessions of guilt; and, secondly, the indi- rect confessions, or those which, in civil cases, are usually termed implied admissions. § 214. But here, also, as we have before remarked in regard to admissions,^ the evidence of verbal confessions of guilt is to be received with great caution. For, besides the danger of mistake, from the misapprehension of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory, it should be recollected that the mind of the prisoner himself is oppressed by the calamity of his situation, and that he is often influ- enced by motives of hope or fear to make an untrue confes- sion.^ The zeal, too, which so generally prevails; to detect 1 Supra, § 200. 2 Hawk. P. C, B. 2, ch. 46, § 3, n. (2) ; McNally's Evid. 42, 43, 44 ; 298 ' LAW OP EVIDENCE. [PART II. offenders, especially in cases of aggravated guilt, and the strong disposition, in the persons engaged in pursuit of evi- Vaughan v. Hann, G B. Monr. 341 ; [Brister v. State, 26 Ala. 107.] Of this character was the remarkable case of the two Boorns, convicted in the Supreme Court of Vermont, in Bennington county, in September term, 1819, of the murder of Russell Colvin, May 10, 1812. It appeared that CoWin, who was the brother-in-law of the prisoners, was a person of a weak and not perfectly sound mind ; that he was considered burdensome to the family of the prisoners, who were obliged to support him ; that on the day of his disappearance, being in a distant field, where the prisoners were at work, a violent quarrel broke out between them; and that one of them struck him a severe blow on the back of the head with a club, which felled him to the ground. Some suspicions arose at that time that he was mur- dered ; which were increased by the finding of his hat in the same field a few months afterwards. These suspicions in process of time subsided ; but in 1819, one of the neighbors having repeatedly dreamed of the murder, with great minuteness of circumstance, both in regard to his death and the concealment of his remains, the prisoners were vehemently accused, and generally believed guilty of the murder. Under strict search, the pocket knife of Colvin, and a button of his clothes, were found in an old open cellar in the same field, and in a hollovy stump, not many rods from it, were dis- covered two nails and a number of bones, believed to be those of a man. Upon this evidence, together with their deliberate confession of the fact of the murder and concealment of the body in those places, they were con- victed and senteficed to die. On the same day they applied to the legisla- ture for a commutation of the sentence of death to that of perpetual impris- onment; which, as to one of them only, was granted. The confession being now withdrawn and contradicted, and a reward oiFered for the discovery of the missing man, he was found in New Jersey, and returned home, in time to prevent the execution. He had fled for fear that they would kill him. The bones were those of some animal. They had been advised,- by some mis- judging friejids, that, as they would certainly be convicted, upon the circum- stances proved, their only chance for life was by commutation of punish- ment, and that this depended on their making a penitential confession, and thereupon obtaining a recommendation to mercy. This case, of which there is a report in the Law Library of Harvard University, is critically exam- ined in a learned and elaborate article in the North American Review, Vol. 10, p. 418-429. For other cases of false confessions, see Wills on Cir- cumstantial Evidence, p. 88 ; Phil. & Am. on Evid. 419 ; 1 Phil. Evid. 397, n. ; Warickshall's case, 1 Leach, Cr. Cas. 299, n. Mr. Chitfy mentions a case of an innocent person making a false constructive confession, in order to fix suspicion on himself alone, that his guilty brothers might have time to escape ; a stratagem which was completely successful ; after which he proved an alibi in the most satisfactory manner. 1 Chltty's Crim. Law, p. 85 ; CHAP. XII.] OP CONFESSIONS. 299 dence, to rely on slight grounds of suspicion, which are exag- gerated into sufficient proof, together with the character of the persons necessarily called as witnesses, in cases of secret and atrocious crime, all tend to impair the value of this kind of evidence, and sometimes lead to ^ts rejection, where, in civil actions, it would have been received.^ The weighty observation of Mr. Justice Foster is also to be kept in mind, that " this evidence is not, in 4he ordinary course of things, to be disproved by that sort of negative evidence, by which the proof of plain facts may be, and often is, confronted." § 215. Subject to these cautions in receiving and weighing them, it is generally agreed, that deliberate confessions of guilt 1 Dickins, Just. 629; note. See also Joy on Confessions, &c. p, 100-109. The civilians placed little reliance on naked confessions of guilt, not corrob- orated by other testimony. Carpzovius, after citing the opinion of Severus to that effect, and enumerating the various kinds of misery which tempt its wretched victims to this mode of suicide, adds — " quorum omnium ex his fontibus contra se emissa pronunciatio, n'on tam delicti confessione firmati quam vox doloris, vel insanienlis oratio est." B. Carpzov. Pract. Eerum. Criminal. Pars. III. Quaest. 114, p. 160. The just value of these instances of false confessions of crime has been happily stated by one of the most accomplished of modern jurists, and is best expressed in his own language. " Whilst such anomalous cases ought to render Courts ^nd Juries, at all times, extremely watchful of every fact attendant on confessions of guilt, the cases should never be invoked, or so urged by the accused's counsel, as to invalidate indiscriminately all confessions put to the Jury, thus repudiating those salutary distinctions which the Court, in the judicious exercise of its duty, shall be .enabled to make. Such an use of these anomalies, which should be regarded as mere exceptions, and which should speak only in the voice of warning, is no less unprofessional than impolitic ; and should be regarded as offensive to the intelligence both of the Court and Jury." " Con- fessions and circumstantial evidence are entitled to a known and fixed standing in the law ; and while it behooves students and lawyers to examine and carefully weigh their just force, and, as far as practicable, to define their proper limits, the advocate should never be induced, by professional zeal, or a less worthy motive, to argue against their existence, be they respec- tively invoked, either in favor of, or against the accused." Hoffman's Course of Legal Study, Vol. 1, pp. 367, 368. See also The (London) Law Magazine, Vol. 4, p. 317, New Series. 1 Foster's Disc. p. 243. See also Lench v. Lench, 10 Ves. 518 ; Smith V. Burnham, 3 Sumn. 438. 300 LAW OF EVIDENCE. [PART II. are among the most effectual proofs in the law.^ Theil: value depends on the supposition, that they are deliberate and vol- untary, and on the presumption that a rational being will not make admissions prejudicial to his interest and safety, un- less when urged by the^ promptings of truth and conscience. Such confessions, so made by a prisoner, to any person, at any moment of time, and at any place, subsequent to the perpetration of the crime, and previous to his examination before the magistrate, are at common law received in evi- dence, as among proofs of guilt.^ Confessions, too, like admissions, may be inferred from the conduct of the pris- oner, and from his silent acquiescence in the statements of others, respecting himself, and made in his presence ; pro- vided they were not made under circumstances which pre- vented him from replying to them.^ The degree of credit due to them is tp be estimated by the Jury, under the cir- cumstances of each case.^ Confessions made before the examining magistrate, or during imprisonment, are affected by additional considerations. § 216. Confessions are divided into two classes, namely, judicial and extrajudicial. Judicial confessions are those which are made before the magistrate, or in Court, in the due course of legal proceedings; and it is essential that they be made of the free will of the party, and with full and per- fect knowledge of the nature and consequences of the con- fession. Of this kind are the preliminary examinations, taken in writing by the magistrate, pursuant to statutes ; 1 Dig. lib. 42, tit. 2, De Confess. ; Van Leeuwen's Coram. B. 5, ch. 21, § 1 ; 2 Poth. on Obi. (by Evans,) App. Num. xvi. § 13 ; 1 Gilb. Evid. by Lofit,. 216 ; Hawk, P. C, B. 2, ch. 46, § 3, n. (1) ; Mortimer v. Mortimer, 2 Hagg. Con. R 315; Harris v. Harris, 2 Hagg. Eccl. R. 409. 2 Lambe's case, 2 Leach, Cr. Cas. 625, 629, per Grose, J. ; Wavickshall's case, 1 Leach, Cr. Cas. 298 ; McNally's Evid. 42, 47. 3 Supra, § 197 ; Re.x v. Bartlett, 7 C. & P. 832 ; Rex v. Smithie, 5 C. & P. 332 ; Rex v. Appleby, 3 Stark. R. 33 ; Joy on Confessions, &c. 77-80 ; Jones V. Morrell, 1 Car. & Kir. 266. 4 Supra, § 201 ; Coon,«. The State, 13 Sm. & M. 246 ; McCann v. The State, Id. 471. CHAP. XII.] OF CONFESSIONS. 301 and the plea of guilty made in open Court, to an indict- ment. Either of these is sufficient to found a conviction, even if to be followed by sentence of death, they being de- liberately made, under the deepest solemnities, with the advice of counsel, and the protecting caution and oversight of the Judge. Such was the rule of the Roman Law ; " Con- fessos in jure, pro judicatis haberi placet ; " and it may be deemed a rule of universal jurisprudence.^ Extrajudicial confessions are those which are made by the party elsewhere than before a magistrate, or in Court ; this term embracing not only explicit and express confessions of crime, but all those admissions of the accused, from which guilt may be implied. All confessions of this kind are receivable in evi- dence, being proved like other facts, to be weighed by the Jury. § 217. Whether extrajudicial confessions uncorroborated by any other proof of the corpus delicti, are of themselves sufficient to found a conviction of the prisoner, has been gravely doubted. In the Roman Law, such naked confes- sions amounted only to a semiplena probatio, upon which alone no judgment could be founded ; and at most the party . could only in proper cases be put to the torture. But if voluntarily made, in the presence of the injured party, or, if reiterated at different times in his absence, and persisted in, they were received as plenary proof.^ In each of the English cases usually cited in favor of the sufficiency of this evidence there was some corroborating circumstance.^ In the United 1 Cod. lib. 7, tit. 59 ; 1 Poth. on Obi. part 4, ch. 3, § 1, numb. 798 ; Van Leeuwen's Comm. b. 5, ch. 21, § 2 ; Mascard. De Probat. vol. 1, Concl. 344 ; Supra, § 179. 2 N. Everhard. Concil. xix. 8, Ixxii. 5, cxxxi. 1, clxv. 1, 2, 3, clxxxvi. 2, 3, 11 ; Mascard. De Probat. vol. 1, Concl. 347, 349 ; Van Leeuwen's Comm. B.'5, ch. 21, §§ 4, 5; B. Carpzov. Practic. Rerum Criminal. Pars II. Qusest. n. 8. 3 Wheeling's case, 1 Leach, Cr. Cas. 349, n., seems to be an exception ; but it is too briefly reported to be relied on. It is in these words : " But in the case of John Wheeling, tried before Lord Kenyon, at the Summer VOL. I. 26 302 LAW OF EVIDENCE. [PAKT II. States, the prisoner's confession, when the corpus delicti is not otherwise proved, has been held insufficient for his con- viction ; and this opinion certainly best accords with the humanity of the criminal code, and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases ; and it seems countenanced by approved writers on this branch of the law.-' § 218. In the proof of confessions, as in the case of admis- sion's in civil cases, the whole of what the prisoner said on the subject, at the time of making the confession, should be takeii together.^ This rule is the dictate of reason, as well as of Assizes at Salisbury, 1 789, it was determined that a prisoner may be con- victed on his own confession, when proved by legal testimony, though it is totally uncorroborated by any other evidence." But in Eldridge's case, lluss. & Ry. 440, who was indicted for larceny of a horse, the beast was found in his possession, and he had sold it for £12, after asking £35, which last was its fair value. In the case of Falkner and Bond, Id. 481, the per- son robbed jvas called upon Ms- recognizance, and it was proved that one of the prisoners had endeavored to send a message to him to keep him from ap- pearing. In White's case. Id. .508, there was strong circumstantial evidence, both of the larceny of the oats from the prosecutor's stable, and of the pris- oner's guilt ; part of which evidence was also given in Tippet's case, Id. 509, who was indicted for the same larceny; and there was the additional proof, that he was an under hostler in the same' stable.' And in all these cases, ex- cept that of Falkner and Bond, the confessions were solemnly made before the examining magistrate, and taken down in due form of law. In the case of Falkner and Bond, the confessions were repeated, once to the officer who apprehended them, and afterwards on hearing the depositions read over, which contained the charge. In Stone's case, Dyer, 215, pi. 50, which is a brief note, it does not appear that the corpus delicti was not otherwise proved ; on the contrary, the natural inference from the report is, that it was. In Francia's case, 6 State Tr. 58, there was much corroborative evi- dence ; but the prisoner was acquitted ; and the opinion of the Judges went only to the sufficiency of a confession solemnly made, upon the arraignment of the party for high treason, and this only upon the particular language of the statutes of Ed. 6. See Foster, Disc. pp. 240, 241, 242. 1 Guild's case; 5 Halst. 163, 185 ; Long's case, 1 Hayw. 524, (455) ; Hawk. P. C, B. 2, ch. 46, § 18. ' 2 The evidence must be confined to his confessions in regard to the par- ticular offence of which he is indicted. If it relates to another and distinct crime, it is inadmissible. Regina v. Butler, 2 Car. & Kir. 221. CHAP. XII.] 0¥ CONFESSIONS. 303 humanity. The prisoner is supposedto have stated a propo- sition respecting his own connection with the crime ; but it is not reasonable to assume that the entire proposition, with all its linaitations, was contained in one sentence, or in any particular number of sentences, excluding all other parts of the conversation. As in other cases the meaning and intent of the parties are collected from the whole writing taken together, and all the instruments, executed at one time by the parties, and relating to the same matter, are equally resorted to for that purpose ; so here, if one part of a conver- sation is relied on, as proof of a confession of the crime, the prisoner has a right to lay before the Court the whole of what was said in that conversation ; not being confined to so much only as is explanatory of the part already proved against him, but being permitted to give evidence of all that was said upon that occasion, relative to the subject-matter in issue.i For, as has been already observed respecting admis- sions,^ unless the whole is received and considered, the true meaning and import of the part which is good evidence against him cannot be ascertained. But if, after the whole statement of the prisoner is given in evidence, the prosecutor can contradict any part of it, he is at liberty to do so ; and then the whole testimony is left to the Jury for their consid- eration, precisely as in other cases, where one part of the evidence is contradictory to another.^ For it is not to be supposed that all the parts of a confession are entitled to equal credit. The Jury may believe that part which charges the prisoner, and reject that which is in his favor, if they see sufficient grounds for so doing.* If what he said in his own 1 Per Lord C. J. Abbott, in the Queen's case, 2 B. & B. 297, 298 ; Rex V. Paine, 5 Mod. 165 ; Hawk. P. C, B. 2, eh. 46, § 5 ; Rex v. Jones, 2 C. & .p. 629 ; Rex v. Higgins, 2 C. & P. 603 ; Rex v. Hearne, 4 C. & P. 215; Rex V. Clewes, Id. 221 ; Rex v. Steptoe, Id. 397; Brown's case, 9 Leigh, 633. 2 SM/Jca, § 201, and cases there cited. 3 Rex V. Jones, 2 C. & P. 6^9. 4 Rex V. Higgins, 3 C. & P. 603 ; Rex k. Steptoe, 4 C. & P. 397; Rex v. Clewes, 4 C. & P. 221 ; Respublica v. McCarty, 2 Dall. 86, 88 ; Bower v. The State, 5 Miss. 364 ; Supra, §§ 201, 215 ; [State v. Mahon, 32 Vt. 241.] 304 LAW OE EVIDENCE. [PAET II. favor is not contradicted by evidence offered by the prose- cutor, nor improbable in itself, it will naturally be believed by the Jury ; but they are not bound to give weight to it on that account, but are at liberty to judge of it like other evi- dence, by all the circumstances o£ the case. And if the con- fession implicates other persons by name, yet it must be proved as it was made, not omitting the names ; but the Judge will instruct the Jury that it is not evidence against any but the prisoner who made it.^ § 219. Before any confession can be received in evidence in a criminal case, it must be shown that it was voluntary. I The course of practice is, to inquire of the witness whether the prisoner had been told that it would be better for him to confess, or worse for him if he did not confess, or whether I language to that effect had been addressed to him.^ " A free and voluntary confession," said Eyre, C B.,^ " is deserv- ing of the higheM credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is ad- mitted as proof of the crime to which it refers ; but a confes- sion forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is 1 Eex V. Hearne, 4 C. & P. 215 ; Rex o. Clewes, Id. 221, per Littledale, J., who said he had considered this point very much, and was of opinion that the names ought not to be left out. It may be added, that the credit to be given to the confession may depend much on the probability that the persons named were likely to engage in such a transaction. S.ee also Rex v. Fletcher, Id. 250. The point was decided in the same way, in Rex v. Walker, 6 C. & P. 1 75, by Gurney, B., who said it had been much consid- ered by the Judges. Mr. Justice Parke thought otherwise. Barstow's case, Lewin's Cr. Cas. 110. 2 1 Phil, on Evid. 401 ; 2 East, P. C. 659. The rule excludes not only direct confessions, but any other declaration tending to implicate the pris- • oner in the crime charged, even though, in terms, it is an accusation of another, or a refusal to confess. Rex v. Tyler, 1 C. & P. 129 ; Rex v. Enoch, 5 C. & P. 539. See further, as to the object of the rule. Rex v. Court, 7 C. & P. 486, per Littledale, J. ; The People v. Ward, 16 Weud. 231. 3 In Warickshall's case, 1 Leach, Cr. Cas. 299; McNally's Evid. 47; Knapp's case, 10 Pick. 489, 490; Chabbock's ease, 1 Mass. 144. CHAP. XII.] OF CONFESSIONS. 305 to be considered as the evidence of guilt, that no credit ought to be given to it ; and therefore it is rejected." ' The mate- rial inquiry, therefore, is, whether the confession has been obtained by the influence of hope or fear, applied by a third person to the prisoner's mind. The evidence to this point, being in its nature prelimin-ary, is addressed to the Judge, who, admits the proof of the confession to the Jury, or rejects it, as he may or may not find it to have been drawn from the prisoner, by the application of those motives.^ This mat- ter renting wholly in the discretion of the Judge, upon all the circumstances of the case, it is difficult to lay down particu- lar rules, a priori, for the government of that discretion. The I rule of law, applicable to all cases, only demands that the L confession shall have been made voluntary, without the I appliances of hope or fear, by any other person ; and whether I it was so made or not, is for him to determine, upon consid- eration of the age, situation, and character of the prisoner, ,and the circumstances under which it was made.^ Lan- guage addressed by others, and sufficient to overcome the mind of one, may have no effect upon that of another ; a consideration which may serve to reconcile some contradic- tory decisions, where the principal facts appear similar in the reports, but the lesser circumstances, though often very mate- ' In Scotland, this distinction between voluntary confessions and those which have been extorted by fear or elicited by promises, is not recognized, but all confessions, obtained in either mode, are admissible at the discretion of the Judge. In strong cases of undae influence, the course is to reject them; otherwise, the credibility of the evidence is left to the Jury. See Alison's Criminal Law of Scotland, pp. 581, 582. 2 Boyd V. The State, 2 Humphreys, R. 37; Regina v. Martin, 1 Armstr. Macai-tn. & Ogle, R. 197 ; The State v. Grant, 9 Shepl. 171 ; United States V. Nott, 1 McLean, 499; The State v. Harman, 3 Harringt. 567. The bur- den of proof, to show that an inducement has been held out, or improper influence used, is on the priscJner. Reg. v. Garner, 12 Jur. 944; 2 C. & K. 920. 3 McNally's Evid. 43 ; Nute's case, 6 Petersdorf 's Abr. 82 ; Knapp's case, 10 Pick. 496 ; United States v. Nott, 1 McLean, 499 ; Supra, § 49 ; Guild's case, 5 Halst. 163, 180 ; Drew's case, 8 C. & P. 140 ; Rex v. Thomas, 7 C. & P. 346 ; Rex v. Court, Id. 486. 26* 306 LAW OF EVIDENCE. [PART II. rial in such preliminary inquiries, are omitted. But it cannot be denied that this rule has been sometimes extended quite too far, and been applied to cases where there could be no. reason to suppose that the inducement had any influence upon the mind of the prisoner.^ § 220. The rule under consideration has been illustrated in a variety of cases. Thus, where the prosecutor said to the prisoner, " Unless you give me a more satisfactory ac- . count, I will take you before a magistrate," evidence ©f the confession thereupon made was rejected.^ It was also re- jected, where the language used by the prosecutor was, " If you will tell me where my goods are, I will be favorable to 1 (The cases on this subject have recently been very fully reviewed in Reg. u. Baldry, 16 Jur. 599, [decided in the Court of Criminal Appeal, April 24, 1852, 12 Eng. Law & Eq. R. 590.] In that case, the constable who apprehended the prisoner, having told him the nature of the charge, said : " He need not say anything to criminate himself; what he did say would be taken down, and used as evidence against him ; " and the prisoner thereupon having made a confession, the Court held the confession admissible. Parke, B., said : " By the law of England, in order to render a confession admissible in evidence, it must be perfectly voluntary ; and there is no doubt that any inducement, in the nature of a promise or of a threat, held out by a person in authority, vitiates a confession. The decisions to that effect have gone a long way. Whether it would not have -been better to have left the whole to go to the Jury, it is now too late to inquire ; but I think there has been too much tenderness towards prisoners in this matter. I confess that I cannot look at the decisions without some shame, when I consider what objections have prevailed to prevent the reception of confessions in evidence ; and I agree with the observation, — that the rule has been extended quite too far, I and that justice and common sense have too frequently been sacrificed at i I the shrine of mercy." Lord Campbell, C. J., stated the rule to be, that " if | there be any worldly advantage held out, or any harm threatened, the con- fession must be excluded ; " in which the other Judge concurred.) [In State V. Grant, 22 Maine, 171, the general rule is thus stated: "To exclude the confession, there must appear to have been 'held out some fear of personal injury, or hope of personal benefit, of a tempdral nature;" and this rule was said to be " well expressed " in Commonwealth v. Morey, 5 Cush. 461, 463. See also Spears K Ohio, 2 Ohio, N. S. 588.] 2 Thompson's case, 1 Leach's Cr. Cas. 325. See also Commonwealth v. Harman, 4 Barr, 269 ; Th'e State v. Cowan, 7 Ired. 239. CHAP. XII.J OF CONFESSIONS. 307 you ; " 1 where the constable who arrested the prisoner, said, " It is of no use for you to deny it, for there are the man and boy who will swear they saw you do it ; " ^ where the prosecutor said, " He only wanted his money, and if the prisoner gave him that he might go to the devil, if he pleased ; " ^ — and where he said he should be obliged to the prisoner, if he would tell all he knew about it, adding, " If you wiU not, of Course we can do nothing," meaning nothing for the prisoner.* So where the prisoner's superior officer in the police, said to him, " Now be cautious in the answers , you give me to the questions I am going to put to you about this watch ; " the confession was held inadmissible.^ There is more difficulty in ascertaining what is such a threat, as will exclude a confession ; though the principle is equally clear, that a confession induced by threats is not voluntary, and therefore cannot be received.® 1 Cass's case, 1 Leach's Cr. Cas. 328, note ; Boyd v. The State, 2 Humph. K. 37. 2 Rex V. Mills, 6 C. & P. 146. 3 Eex V. Jones, Russ. & Ry. 152. See also Griffin's case, Id. 151. • 4 Rex V. Partridge, 7 C. & P. 551. See also Guild's case, 5 Halst. 163. * Regina v. Fleming, 1 Armst. Macartn. & Ogle, R. 330. But where the examining magistrate said to the prisoner, " Be sure you say nothing but the truth, or it will be taken against you, and may be given in evidence against you at your trial," the statement thereupon made was held admissible. Reg. V. Holmes, 1 C. & K. 248 ; Reg. v. Atwood, 5 Cox, C. C. 322, S. P. [One under arrest for stealing, was visited in jail by the prosecutor, who said to him, that if he wished for any conversation he could have a chance ; the prisoner made no reply for a minute or two ; the prosecutor then told the prisoner he thought it was better for all concerned in all cases -for the guilty to confess; the prisoner then said he supposed' he should have to stay there whether he confessed or not ; the prosecutor replied that he supposed he would, and in his opinion it would make no difference as to legal proceed- ings, and that it was considered honorable in all cases if a person was guilty, to confess. Immediately after this, the prisoner made confession, and it was held' admissible. Commonwealth v. Morey, 1 Gray, 461.] 6 Thornton's case, 1 Mood. Cr. Cas. 27; Long's case, 6 C. & P. 179; Eoscoe'a Crim. Evid. 34; Dillon's case, 4 Dall. 116. Where the prisoner's superior in the post-ofEce, said to the prispner's wife, while her husband was in custody for opening and detaining a letter, " Do not be frightened ; I hope nothing will happen to your husband, beyond the loss of his situa- 308 ■ LAW OF EVIDENCE. [PAET II. § 220 a. It is extremely difficult to reconcile these and similar cases with the spirit of the rule, as expounded by Chief Baron Eyre, whose language is quoted in a preceding section. The difference is between confessions made volun- tarily, and those ^^ forced from the mind by the flattery of hope, or by the torture of fear." If the party has made his own calculation of the advantages to be derived from con- fessing, and thereupon has confessed the crime, there is no reason to say that it is not a voluntary confession. It seems .that, in order to exclude a confession,-the inotive of hope or fear must be directly applied by a third person, and must be sufficient, in the judgment of the Court, so far to overcome the mind of the prisoner, as to render the confession un- worthy of credit.! § 221. But though promises or threats have been used, yet if it appears to the satisfaction of the Judge, that their influ- ence was totally done away before the confession was made, the evidence will be received. Thus, where a magistrate, who was also a clergyman, told the prisoner that if he was not the man who struck the fatal blow, and would disclose all he knew respecting the murder, he would use all his endeavors and influence to prevent any ill consequences from tion ; " the prisoner's subsequent confession was rejected, it appearing that the wife might have communicated this to the prisoner. Eegina w. Harding, 1 Armst. Macaytn. & Ogle, R. 340. Where a girl, thirteen years old, was charged with administering poison to her mistress, with intent to murder ; and the surgeon in attendance had told her, " it would be better for her to speak the truth ; " it was held that her confession, thereupon made, was not admissible. Reg. i'. Garner, 12 Jur. 943; 1 Denison's Cr. Cas. R. 329. [A confession made after the inducement of a threat held out by A when B was present, was held to be the same thing as if B had used the threat ; and as B was the person likely to prosecute, (he being the owner of the prop- erty, in connection with which the oEFgnce was committed,) he was a person in authority, so that the confession made after the inducement held out in his presence was not admissible in evidence. R.egina v. Luckhurst, 22 Eng. Law and Eq. 604.] 1 See Regina v. Baldry, 16 Jur. 699; 12 Eng. Law and Eq. R. 590; where this subject was very fully discussed, and the true principle recog- nized as above quoted from Ch. Baron Eyre. CHAP. XII.] OF CONFESSIONS. 309 falling on him ; and he accordingly wrote to the Secretary of State, and received an answer, that mercy could not be ex- tended to the prisoner ; which answer he communicated to the prisoner, who afterwards made a confession to the coro- ner ; it was held, that the confession was clearly voluntary, and as such it was admitted.^ So, where the prisoner had been induced, by promises of favor, to make a confession, which was for that cause excluded, but about five months afterwards, and after having been solemnly warned by two magistrates that he must expect death and prepare to meet it, he' again made a full confession, this latter confession was admitted in evidence.^ In this case, upon much considera- tion, the rule' was stated to be, that, although an original confession may have been obtained by improper means, yet subsequent confessions of the same or of like facts may be admitted, if the Court believes, from the length of time inter- vening, or from proper warning of the consequences of con- fession, or from other circumstances, that the delusive hopes or fears, under the influence of which the original confession was obtained, were entirely dispelled.^ In the absence of any such circumstances, the influence of the motives proved to have been offered, will be presumed to continue, and tp have produced the confession, unless the contrary is shown by clear evidence ; and the confession will therefore be re- jected.* Accordingly, where an inducement has been held out by an officer, or a prosecutor, but the prisoner is subse- quently warned by the magistrate, that what he may say will be evidence against himself, or that a confession will be of no benefit to him, or he is simply cautioned by the magistrate not to say anything against himself, his confes- 1 Kex V. Clewes, 4 C. & P. 221. [See State w. Vaigneur, 5 Rich. 391.] ■ 2 Guild's case, 5 Halst. 163, 168. 3 Guild's case, 5 Halst. 180. But otherwise the evidence of a subsequent confession, made on the basis of a prior one unduly obtained, will be re- jected. Commonwealth v. Harman, 4 Barr. 269 ; The State v. Roberts, 1 Dev. 259. * Robert's case, 1 Devereux, R. 259, 264 ; Maynell's case, 2 Lewins, Cr. Cas. 122; Sherrington's case, Id. 123 ; Rex v. Cooper, 5 C. & P. 535. 310 LAW OF EVIDENCE. [PART II. sion, afterwards made, will be received as a voluntary con- fession.i § 222. In regard to the person by whom the inducements were offered, it is very clear, that if they M^ere offered by the prosecutor,^ or by his wife, the prisoner being his servant,^ or by an officer having the prisoner in custody,* or by a magis- 1 Rex V. Howes, 6 C. & P. 404 ; Rex v. Richards, 5 C. & P. 318 ; Nute's case, 2 Russ. on Crimes, 648 ; Joy on the Admissibility of Confessions, pp. 27, 28, 69-75; Rex'u. Bryan, Jebb's Cr. Cas. 157. If the inducement was held out by a person of superior authority, and the oonfession was^fter- wards made to one of inferior authority, as a turnkey, it seems inadmissible, unless the prisoner was first cautioned by the latter. Rex v. Cooper, 5 C. & P. 535. In The United States v. Chapman, 4 Am. Law Jour. 440, N. S. the prisoner had made a confession to the High Constable whd had him un- der arrest, upon express promises of favor by the otKcer. After being de- tained forty-four hours in the watch-house, he was brought before the Mayor, in the same apartment where he had made the confession, and his examina- tion was taken in presence of the same High Constable. The Mayor knew nothing of the previous confession ; and gave the prisoner no more than the usual caution not to answer any questions unless he pleased, and telling I him that he was not bound to criminate himself. In this examination, the I same confession was repeated ; but the Judge rejected it, as inadmissible ; / being of opinion that, being made in the same room where it was first made, and under the eye of the same police-officer to whom it was made, there was " strong reason to infer that the last examination was but intended to put in due form of law the first confession, and that the promise of favor continued as first made." The legal presumption, he said, was, that the infiuencej which induced the confession to the officer, continued when it was made to the Mayor ; and this presumption it was the duty of the prosecutor to repel. 2 Thompson's case, 1 Leach, Cr. Cas. 325 ; Cass's case. Id. 328, n. ; Rex V. Jones, Russ. & R. 152 ; Rex v. Griffin, Id. 151 ; Chabboek's case, 1 Mass. 144 ; Rex v. Gibbons, 1 C. & P. 97, note (a) ; Rex v. Partridge, 7 C. & P. 551 ; Robert's case, 1 Dever. 259 ; Rex v. Jenkins, Russ. & Ry. 492; Regina v. Hearn, 1 Car. & Marsh. 109. See also Phil. & Am. on Evid. 430, 431. 3 Rex V. Upchurch, 1 Mood. Cr. Cas. 465 ; Regina v. Hewett, 1 Car. & Marshm. 534 ; Rex v. Taylor, 8 C. & P. 733. In Rex v. Simpson, 1 Mood. Cr.- Cas. 410, the indut^ements were held out by the mother-in-law of the prosecutor, in his house, and in the presence of his wife, who was very deaf; , and the confessions thus obtained were held inadmissible. See Mr. Joy's Treatise on the Admissibility of Confessions, p. 5-10. 4 Rex S^atkins, 4 C. & P. 548 ; Rex v. Mills, 6 C. & P. 146 ; Rex v. CHAP. XII.] OE CONFESSIONS. 311 trate,^ or, indeed, by any one having authority over him, or over the prosecution itself,^ or by a private person in the presence of one in authority,' the confession will not be deemed voluntary and will be rejected. The authority,\ known to be possessed by those persons, may well be sup- ■ posed both to animate the prisoner's hopes of favor, on the 1 one hand, and on the other to inspire him with awe, and in ; some degree to overcome the powers of his" mind. It has been argued, that a confession made upon the promises or threats of a person, erroneously believed by the prisoner to possess such authority, the person assuming to act in the capacity of an officer or magistrate, ought, upon the same principle, to be excluded. The principle itself would seem to require such exclusion ; but the point is not known to have received any judicial consideration. § 223. But whether a confession, made to a person who has no authority, upon an inducement held out by that person, is receivable, is a question upon which learned Judges are known to entertain opposite opinions.* In one case, it was Sextons, 6 Petersd. Abr. 84; Eex v. Shepherd, 7 C. & P. 579. See also Kex V. Thornton, 1 Mood. Cr. Cas. 27. But see Commonwealth t>. Mosler, 4 Barr, 264. 1 Rudd's case, 1 Leach, Cr. Cas. 135 ; Guild's case, 5 Halst. 163. ■ 2 Eex V. Parratt, 4 C. & P. 570, which was a confession by a sailor to his captain, who threatened him with prison, on a charge of stealing a watch. Kex V. Enoch, 5 C. & P. 539, was a confession made to a woman, in whose custody the prisoner, who was a female, had been left by the officer. The official character of the person to whom the confession is made does not affect its admissibility, provided no inducements were employed. Joy on Confessions, &c. p. 59-61; Rex v. Gibbons, 1 C. & P. 97, note (a) ; Knapp's case, 10 Pick. 477; Hosier's case, 6 Penn. Law Journ. 90; 4 Barr, 264. 3 Robert's case, 1 Dever. 259 ; Rex v. Pountney, 7 C. & P. 302 ; Reg. v. Laugher, 2 C. & K. 225 ; [Reg. v. Luckhurst, 22 Eng. Law & Eq. R. 604.] * So stated by Parke, B., in Rex v. Spfpncer, 7 C. & P. 776. See also Eex V. Pountney, Id. 302, per Alderson, B. ; Rex v. Row, Russ. & R. 153, per Chambre, J. [Shaw, C. J., in giving the opinion of the Court in Com- monwealth V. Morey, 1 Gray, 461, 463, said, " Of course, such inducement must be held out to the accused by some one who has, or who is supposed 312 LAW OF EVIDENCE. [PAET II. laid down as a settled rule, that any person telling a prisoner that it would be better for him to confess, will always exclude any confession made to that person.^ And this rule has been applied in a variety of cases, both early and more recent.^ On the other hand, it has been held, that a promise made by an indifferent person, who interfered officiously, without any kind of authority, and promised, without the means of per- formance, can scarcely be deemed sufficient to produce any effect, even on the weakest mind, as an inducement to con- fess ; and, accordingly, confessions made under such circum- stances have been admitted in evidence.^ The difficulty experienced in this matter seems to have arisen from the endeavor to define and settle, as a rule of law, the facts and circumstances which shall be deemed, m all cases, to have influenced the mind of the prisoner, in making the confes- sion. In regard to persons in authority, there is not much room to doubt. Public policy, also, requires the exclusion of confessions, obtained by means of inducements held out by fisuch persons. Yet even here, the age, experience, intelli- gence, and constitution, both physical and mental, of prison- ers, are so various, and the power of performance so different, in the different persons promising, and under different cir- cumstances of the prosecution, that the rule will necessarily sometimes fail of meeting the truth of the case. But as it by the accused to have, some power or authority to assure to him the prom- ised good, or cause or influence the threatened injury.'' And to support this he cites Commonwealth j). Taylor,, 5 Cush. 606.] P 1 Rex V. Dunn, 4 C. & P. 543, per Bosanquet, J. ; Kex v. Slaughter, 8 C. & t. 734. * See, accordingly, Kex v. Kingston, 4 C. & P. 387 ; Rex v. Clewes, Id. : 231 ; Rex v. Walkley, 6 C. & P. 175 ; Guild's case, 5 Halst. 163 ; Knapp's \ case, 9 Pick. 496, 500-510 ; Rex v. Thomas, 6 C. & P. 533. 3 Rex V. Hardwick, 6 Petersd. Abr. 84, per Wood, B. ; Rex v. Taylor, 8 C. & P. 734. See accordingly Rex v. Gibbons, 1 C. & P. 97 ; Rex v. Tyler, Id. 129 ; Rex v. Liugate, 6 Petersd. Abr. 84 ; 2 Lewin's Cr. Cas. 125, note. In Rex v. Wild, 1 ftjood. Cr. Cas. 452, the prisoner, a boy under fourteen, was required to kneel, and was sblemnly adjured to tell the truth. The conviction upon his confession thus made, was held right, but the mode of obtaining the confession was very much disapproved. Rex v. Row, Russ. &B.y. 153 ; [Commonwealth v. Home, 2 Allen, 153.] CHAP. XII.] OF CONFESSIONS. 313 is thought to succeed in a large majority of instances, it is wisely adopted as a rule of law applicable to them all. Promises and threats by private persons, however, not being found so uniform in their operation, perhaps may, with more propriety, be treated as mixed questions of law and fact ; the principle of law, that the confession must be voluntary, being strictly adhered to, and the question, whether the promises or threats of the private individuals who employed them, were sufficient to overcome the mind of the prisoner, being left to the discretion of the Judge, under aU the circumstances of the case,^ ' In Scotland, it is left to the Jury. See Alison's Criminal Law of Scot- land, pp. 581, 582 ; Supra, § 219, u. Mr. Joy maintains the unqualified prop- osition, that " a confession is admissible in evidence, although an induce- ment is held out, if such inducement proceeds from a person not in authority over the prisoner ; " and it is strongly supported by the authorities he cites, which are also cited in the notes to this section. See Joy on the Admissi- bility of Confessions, sec. 2, p. 23-33. His work has been published since the first edition of this book ; but upon a deliberate revision of the point, I have concluded to leave it, where the learned Judges have stated it to stand, as one on which they were divided in opinion. In a recent case, in England, the rule stated in the text is admitted to be the best rule, though the learned Judges felt themselves restricted from adopting it by reason of previous decisions. ' It was a prosecution against a female servant, for concealing the death of her bastard child ; and the ques- tion was upon the admissibility of a confession made to her mistress, who told her " she had better speak the truth.'' The judgment of the Court was delivered by Parke, B., as follows : " The cases on this subject have gone quite far enough, and ought not to be extended. It is admitted that the con- fessions ought to be excluded unless voluntary, and the Judge, not the Jury, ought to determine whether they are so. One element in the consideration of the question as to their being voluntary is, whether the threat or induce- ment was such as to be likely to influence the pAsoner. Perhaps it would have been better to have held, (when it was determined that the Judge was to decide whether the confession wjes voluntary,) that in all cases he was to decide that point upon his own view of all the circumstances, including the nature of the threat or inducement, and the character of the person holding it out, together; not necessarily excluding the confession on account of the character of the person holding out the inducement or threat. But a rule has been laid down in different precedents by which we are bound, and that is, if the threat or inducement is held out, actually or constructively, by a person in authority, it cannot be received, however slight the threat or in- VOL. I. 27 314 LAW OF .EVIDENCE. [PAKT IT. § 224. The same rule, that the confession must be volun- tary, is applied in cases where the prisoner has been examined before a magistrate, in the course of which examination the confession is made. The practice of examining the accused was familiar in the Roman jurisprudence, and is still con- tinued in continental Europe ; ^ but the maxim of the Com- mon Law was. Nemo tenetur prodere seipsum ; and therefore no examination of the prisoner himself was permitted in ducement ; and the prosecutor, magistrate, or constable is such a person, and so the master or mistress may be. If not held out by one in authority, they are clearly admissible. The authorities are collected in Mr. Joy's very able treatise on Confessions and Challenges, p. 23. But, in referring to the cases where the master and mistress have been held to be persons in author- ity, it is only when the offence concerns the master or mistress that their holding out the threat or promise renders the confession inadmissible. In Rex V. TJpchureh, (Ry. & M. 865,) the offence was arson of the dwelling- house, in the management of which the mistress took a part. Reg. v. Taylor, (8 Car. & P. 733,) is to the like effect. So Rex v. Carrington, (Id. 109,) and Rex v. Howell, (Id. 534.) So where the threat was used by the master of a ship to one of the crew, and the offence committed on board the ship by one of the crew towards another ; and in that case also the master of the ship threatened to apprehend him ; and, the offence being a felony, and a felony actually committed, would have a power to do so on reasonable suspi- cion that the prisoner was guilty. In Rex v. Warringham, tried before me at the Surrey Spring Assizes, 1851, the confession was in consequence of what, was said by the mistress of the prisoner, she being in the habit of managing the shop, and the offence being larceny from the shop. This ap- pears from my note. In the present case, the offence of the prisoner m kiUing her child, or concealing its dead body, was in no way an offence against the mistress of the house. She was not the prosecutrix then, and there was no probability of herself or the husband being the prosecutor of an indictment for that offence. In practice the prosecution is always the result of a coroner's inquest. Therefore we are clearly of opinion that her con- fession was properly received." See Reg. v. Moore, 16 Jur. 622 ; 12 Eng. L. & Eq. R. 583. In South Carolina it has been held,*that where the prisoner after due warning of all the consequences, and the allowance of sufficient time for reflection, confesses his guilt to a private person, who has no control over his person or the prosecution ; the confession is admissible in evidence, although the person may have influence and ability to aid him. The State V. Kirby, 1 Strobhart, 155. 1 The course of proceeding, in such cases, is fully detailed in B. Carpzov. PracticsB Rerum Criminal. Pars III. Qucest. 113, per tot. CHAP. XII.] OB CONFESSIONS. 815 England, until the passage of the statutes of Philip and Mary.^ By these statutes, the main features of which have been adopted in several of the United States,^ the Justices, before whom any person shall be brought, charged with any of the crimes therein mentioned, shall take the examination of the prisoner, as well as that of the witnesses, in writing, which the magistrate shall subscribe, and deliver to the proper officer of the Court where the trial is to be had. The signa- ture of the prisoner, when not specially required by statute, is not necessary ; though it is expedient, and therefore is usu- ally obtained.^ The certificate of the magistrate, as will be hereafter shown in its proper place,* is conclusive evidence 1 1 & 2 Phil. & M. u. 13 ; 2 & 3 Phil. & M. c. 10 ; 7 Geo. 4, i-. "64 ; 4 Bl. Comm. 295. The object of these statutes, it is said, is to enable the Judge to see whether the offence is bailable, and that both the Judge and Jury- may see whether the witnesses are consistent or contradictory, in their ac- counts of the transaction. The prisoner should only be asked, whether he wishes to say anything in answer to the charge, when he had heard all that the witnesses in support of it had to say against him. See Joy on Confes- sions, &o. p. 92-94; Rex v. Saunders, 2 Leach, Cr. Cas. 652 ; Rex v. Fagg, 4 C. & P. 567. But if he is called upon to make his answer to the charge, before he is put in possession of all the evidence against him, this irregular- ity is not sufficient to exclude the evidence of his confession. Rex v. Bell, 5 C. & P. 163. His statement is not an answer to the depositions, but to the charge. He is not entitled to have the depositions first read, as a^mat- ter of right. But if his examination refers to any particular depositions, he is entitled to have them read at the trial, by way of explanation. Dennis's case, 2 Lew. Cr. Cas. 261. See further, Rowland v. Ashby, Ry. & M. 231, per Best, C. J. ; Rex v. Simons, 6 C. & P. 640 ; Regina v. Arnold, 8 C. & P. 621. 2 See New York Revised Statutes, Part 4, c. 2, tit. 2, §§ 14, 15, 16, .26 ; Bellinger's case, 8 "Wend. 595, 599 ; Elmer's Laws of New Jersey, p. 450, § 6 ; Laws of Alabama, (Toulmin's Digest,) tit.'l7, c. 3, § 2, p. 219 ; Laws of Tennessee, (Carruthers and Nicholson's Digest,) p. 426 ; North Carolina, Rev. St. u. 35, § 1 ; Laws of Mississippi, (Alden and Van Hoesen's Digest,) c. 70, § 5, p. 532 ; Hutchinson's Dig. c. 50, art. 2, § 5 ; Laws of Delaware, (Revised Code of 1829,) p. 63 ; Brevard's Laws of South Carolina, Vol. 1, p. 460 ;^Law8 of Missouri, (Revision of 1836,) p. 476 ; Id. Rev. Stat. 1845, c. 138, § 15-17. See also Massachusetts Rev. Stat. c. 85, § 25 ; Respublica V. McCarty, 2 Dall. 87, per McKean, C. J. 3 1 Chitty's Crim. Law, 87 ; Larabe's case, 2 Leach, Cr. Cas. 625. 4 Infra, § 227. 316 LAW OF EVIDENCE. [PAKT II. of the manner in which the examination was conducted ; and, therefore, where he had certified that the prisoner was examined under oath, parol evidence to show that in fact no oath had been administered to the prisoner, was held inadmissible.' But the examination cannot be given in evi- dence until its identity is proved.^ 'If the prisoner has signed it with his name, this implies that be can read, and it is ad- mitted on proof of his signature ; but if he has signed it with his mark only, or has not signed it at all, the magis- trate or his clerk must be called to identify the writing, and prove that it was truly read to the prisoner, who assented to its correctness.^ § 225. The manner of examination is, therefore, particu- larly regarded ; and if it appears that the prisoner had not been left wholly free, and did not consider himself to be so, in what he was called upon to say, or did not feel himself at liberty wholly to decline any explanation or declaration what- ever, the examination is not held to have been voluntary,* In such cases, not only is the written evidence rejected, but oral evidence will not be received of what the prisoner said 1 Eex V. Smith & Homage, 1 Stark. R. 242 ; Rex v. Rivers, 7 C. & P. 177 ; Regina v. Pike&ley, 9 C. & P. 124. 2 Hawk. P. C, B. 2, c. 46, § 3, note (1). 3 Rex V. Chappel, 1 M. & Rob. 395. * The proper course to be pursued in these cases, by the examining mag- istrate, is thus laid down by Gurney, B., in Rex v. Greene, 5 C. & P. 312: " To dissuade a prisoner was wrong. A prisoner ought to- be told that his confessing will not operate at all in his favor ; and that he must not expect any favor because he makes a confession ; and that, if any one has told him that it will be better for him to confess, or worse for him if he does not, he must pay no attention to it; and that anything he says to criminate himself, will be used as evidence against him on his trial. After that admonition, it ought to be left entirely to himself, whether he will make any statement or not ; but he ought not to be dissuaded from making a perfectly voluntary confession, because that is shutting one of the sources of justice." The same course, in substance, was recommended by Lord Denman, in Regina v. Av- nold, 8 C. & P. 622. The omission of this course, however, will not alone render the confession inadmissible. CHAP. XII.] OF CONFESSIONS. 317 on that occasion.^ The prisoner, therefore, must not be sworn.^ But where, being mistaken for a witness, he was sworn, and afterwards, the mistake being discovered, the deposition was destroyed ; and the prisoner, after having been cautioned by the magistrate, subsequently made a statement; this latter statement was held admissible.^ It may, at first view, appear unreasonable to refuse evidence of confession, merely because it was made under oath, thus having in favor of its truth, one of the highest sanctions known in the law. But it is to be observed, that none but voluntary confessions are admissible ; and that if to the per- plexities and embarrassments of the prisoner's situation are added the danger of perjury, and the dread of additional penalties, the confession can scarcely be regarded as volun- tary ; butj on the contrary, it seems to be made under the very influences which the law is particularly solicitous to avoid. But where the prisoner, having been examined as a witness, in a prosecution against another person, answered questions to which he might have demurred, as tending to criminate himself, and which, therefore, he was not bound to answer, his answers are deemed voluntary, and, as such, may be subsequently used against himself, for all purposes ; * 1 Rex V. Rivers, 7 C. & P. 177; Rex v. Smith et al. 1 Stark. R. 242 ; Harman's case, 6 Pennsyl. Law Journ. 120. But an examination, by way of question and answer, is now held good, if it appears free from any other objection. Rex v. Ellis, Ry. & M. 432 ; 2 Stark. Evid. 29, note (g) ; though formerly it was held otherwise, in Wilson's case. Holt, R. 597. See ace. Jones's case, 2 Russ. 658, n. ; Roscoe's Crim. Evid. 44. So, if the questions were put by a police-officer,. Rex v. Thornton, 1 Mood. Cr. Cas. 27 ; or, by a fellow-prisoner. Rex v. Shaw, 6 C. & P. 372, they are not, on that account, objectionable. See also Rexu. Wild, 1 Mood. Cr. Cas. 452 ; Infra, § 229. 2 Bull. N. P. 242 ; Hawk. P. G., B. 2, ch. 46, § 3. 3 Rex V. Webb, 4 G. & P. 564. 4 2 Stark. Evid. 28; Wheater's case, 2 Lewin's Gr. Gas. 157; 2 Mood. Cr. Cas. 45, S. G. ; Joy on Confessions, &c. p. 62-66; Hawarth's case, Roscoe's Crim. Evid. 45 ; Rex v. Tuby, 5 C. & P. 530-, cited and agreed in Rex ti. Lewis, 6 C. & P. 1,61 ; Rex v. Walker, cited by Gurney, B., in the same case. But see Rex v. Davis, 6 C. & P. 177, contra; [and People v. McMahon, 15 N. Y. (1 Smith,) 384, — a fully reasoned case. See al?o Hendrickson v. The People, 6 Selden, (N. Y.) 13.] 27* 318 LAW OF EVIDENCE. [PART 11. though where his answers are compulsory, and under the peril of punishment for contempt, they are not received.^ § 226. Thus, also, where several persons, among whom was the prisoner, were summoned before a committing mag- istrate, upon an investigation touching a felony, there being at that time no specific charge against any person ; and the prisoner, being sworn with the others, made a statement, and at the conclusion of the examination he was committed for trial ; it was held, that the statement so made was not admis- sible in' evidence against the prisoner.^ This case may seem, at the first view, to be at variance with what has been just stated as the general principle, in regard to testimony given in another case ; but the difference lies in the different natures of the two proceedings. In the former case, the mind of the witness is not disturbed by a criminal charge, and, moreover, he is generally aided and protected by the presence of the counsel in the cause ; but in the latter case, being a prisoner, subjected to an inquisitorial examination, and himself at least in danger of an accusation, his mind is brought under the full influence of those disturbing forces against which it is the policy of the law to protect him.^ § 227. As the statutes require that the magistrate shall 1 Supra, § 193, note ; Infra, § 451 ; Regina v. Garbett, 2 C. & K. 474. But where one was examined before the grand-jury as a witness, on a complaint against another person, and was afterwards himself indicted for that same offence, it was held that his testimony before the grand-jury was admissible in evidence against him. The State v. Broughton, 7 Ired. 96. 8 Rex V. Lewis, 6 C. & P. 161, per Gurney, B. ; Regina v. Wheeley, 8 C. & P. 250 ; Regina v. Owen, 9 C. & P. 238. 3 It has been thought, on the authority of Britten's case, 1 M. & Rob. 297, that the balance-sheet of a bankrupt, rendered in his examination under the commission, was not admissible in evidence against bim on a subsequent criminal charge, because it was rendered upon compulsion. But the ground of this decision was afterwards declared by the learned Judge who pro- nounced it, to be only this, that there was no previous evidence of the issu- ing of the commission ; and, thereibre, no foundation had been laid for intro- ducing the balance-sheet at all. See Wheater's case, 2 Mood. Cr. Cas. 45, 51. CHAP. XII.] OF CONFESSIONS. 319 reduce to writing the whole examination, or so much thereof as shall be material, the law conclusively presumes, that if anything was taken down in writing, the magistrate per- formed all his duty by taking down all that was material.' In such case, no parol evidence of what the prisoner may have said on that occasion can be received.^ But if it is shown that the examination was not reduced to writing; or if the written examination is wholly inadmissible, by reason of irregularity; parol evidence is admissible to prove what, he voluntarily disclosed.^ And if it remains uncertain whether it was reduced to writing by the magistrate or not, it will be presumed that he did his duty, and oral evidence wUl be rejected.^ A written .examination, however, will not exclude parol evidence of a confession previously and extra- judicially made;^ nor of something incidentally said by the prisoner during his examination, but not taken down by the 1 Mr. Joy, in his Treatise on Confessions, &c. p. 89-92, 237, dissents from this proposition, so far as regards the conclusive character of the pre- sumption ; which, he thinks, is neither " supported by the authorities," nor " reconcilable with the object with which examinations are taken." See supra, § 224, note. But upon a careful review of the authorities, and with deference to the opinion of that learne5 writer, I am constrained to leave the text unaltered. See infra, § 275-277. 2 Rex V. Weller, 2 Car. & Kir. 223. Whatever the prisoner voluntarily aaid, respecting the particular felony under examination, should be taken down, but not that which relates to another matter. Ibid. And see Keg. V. Butler, 2 Car. & Kir. 221. 3 Rex V. Fearshire, 1 Leach, Cr. Cas. 240; Rex v. Jacobs, Id. 347; Irwin's case, 1 Hayw. 112; Rex v. Bell, 5 C. & P. 162; Rex v. Read, 1 M. &M.403; Phillips i>. Winburn, 4 C. & P. 273; [State v. Parish, Busbee, Law, 239.] If the magistrate returns, that the prisoner "declined to say anything," parol evidence of statements made by him in the magistrate's presence, at the time of the examination, is not admissible. Rex v. Walter, 7 C. & P. 267. See also Rex v. Rivers, Id. 177; Regina v. Morse et al. 8 C. & P. 605 ; Leach v. Simpson, 7 Dowl. 513. Upon the same principle, where, on a preliminary hearing of a case, the magistrate's clerk wrote down what a witness said, but the writing was not signed, and therefore was inadmissible; oral evidence was held admissible to prove what the witness testified. Jeans v. Wheedon, 2 M. & Kob. 484. * -Hinxman's case, 1 Leach, Cr. Cas. 349, n. 5 Rex V. Carty, McNally's Evid. p. 45. 320 LAW OF EVIDENCE. [PART II. magistrate, provided it formed no part of the judicial in- quiry, so as to make it the duty of the magistrate to take it down.'' So where the prisoner was charged with several larcenies, and the magistrate took his confession in regard to the property of A, but omitted to write down what he confessed as to the goods of B, not remembering to have heard anything said respecting them, it was held that parol evidence pf the latter confession, being precise and distinct, ■was properly admitted.^ § 228. It has already been stated, that the signature of the prisoner is not necessary to the admissibility of his exami- nation, though it is usually obtained. But where it has been requested agreeably to the usage, and is absolutely refused by the prisoner, the examination has been held inadmissible, on the ground that it was to be considered as incomplete, and not a deliberate and distinct confession.^ Yet where, in a similar case, the prisoner, on -being required to sign the document said, " it is all true enough ; but he would rather decline signing it," the examination was held complete, and was accordingly admitted.* And in the former case, which, however, is not easily reconcilable with those statutes, which require nothing -more than the act of the magistrate, though the examination is excluded, yet parol evidence of what the prisoner voluntarily said is admissible. For though, as we 1 Moore's case, Roscoe's Crim. Evid. 45, per Parke, J. ; Rex ;>. Spilsbury, 7 C. & P. 188; Malony's case, Id. (otherwise Mulvey's case, Joy on Confes- sions, &c. p. 238,) per Littledale, J. In Rowland v. Ashbuy, Ry. & My. 221, Mr. Justice Best was of opinion, that " upon clear and satisfactory evidence, it would be admissible to prove something said by a prisoner, beyond what was taken down by the committing magistrate." I 2 Harris's case, 1 Mood. Cr. Cas. 338. See 2 Phil. Evid. 84, note, where khe learned author has reviewed this case, and limited its application to con- jfessious of other offences than the one for which the prisoner was on trial. But the case is more fully stated, and the view of Mr. Phillips dissented from, in 2 Russell on Crimes, p. 876-878, note, by Mr. Greaves. See also Joy on Confessions, p. 89-93. 3 Rex V. Telicote, 2 Stark. R. 483; Bennett's case, 2 Leach's Cr. Cas. 627, n. ; Rex v. Foster, 1 Lewin's Cr. Cas. 46; Rex v. Hirst, Ibid. 4 Lambe's case, 2, Leach, Cr. Cas. 625. CHAP. XII.] OF CONFESSIONS. 821 have previously observed,^ in certain cases where the exam- ination is rejected, parol evidence of what was said on the same occasion is not received ; yet the reason is, that in those cases the confession was not voluntary ; whereas, in the case now stated, the confession is deemed voluntary, but the examination only, is incomplete.^ And wherever the examination is rejected as documentary evidence, for infor- mality, it may still be used as a writing, to refresh the mem- ory of the witness who wrote it, when testifying to what the prisoner voluntarily confessed upon that occasion.^ § 229. Though it is necessary to the admissibility of a confession that it should have been voluntarily made, that is, that it should have been made, as before shown, without the appliajices of hope or fear from persons having authority; yet it is not necessary that it should have been the prisoner's own spontaneous act. It will be received, though it were in- duced by spiritual exhortations, whether of a clergyman,* or of any other person ; ^ by a solemn promise of secrecy, even confirmed by an oath ;^ or by reason of the prisoner's having 1 Supra, § 225. s Thomas's case, 2 Leach's Cr. Cas. 727 ; Dewhurst's case, 1 Lewin's Cr. Cas. 47 ; Rex v. Swatkins, 4 C. & P. 548 ; Rex v. Read, 1 M. & M. 403. 3 Layer's case, 16 Howell's St. Tr. 215 ; Rex v. Swatkins, 4 C. & P. 548, and note (a) ; Rex v. Tarrant, 6 C. & P. 182; Rex v. Pressly, Id. 183; Supra, § 90 ; Infra, § 436. * Rex V. Gilham, 1 Mood. Cr. Cas. 186 ; more fully reported in Joy on Confessions, &c. p. 52-56 ; Commonwealth v. Drake, 15 Mass. 161. In the Roman Law it is otherwise ; penitential confessions to the priest being en- couraged, for the relief of the conscience, and the priest being bound to secrecy by the peril of punishment. " Oonfessio coram sacerdote, in poeni- tentia facta, non probat in judicio; quia censetur facta coram Deo; imo, si sacerdos earn enunciat, incidit in poenam." Mascardus, De Probat. Vol. 1, Concl. 377. It was lawful, however, for the priest to testify in such cases to the fact that the party had made a penitential confession to him, as the Church requires, and that he had enjoined penance upon him ; and, with the express consent of the penitent, he might lawfully testify to the sub- stance of the confession itself. Ibid. See further, m/ra, § 247. 5 Rex V. Wild, 1 Mood. Cr. Cas. 452 ; Rex v. Court, 7 C. & P. 486 ; Joy on Confessions, &c. pp. 49, 51. 6 Rex V. Shaw, 6 C. & P. 372 ; Commonwealth v. Knapp, 9 Picik. 496, 322 LAW OP EVIDENCE. [PART 11. been made dnmken;^ or by a promise of some collateral benefit or boon, no hope or favor being held out in respect to the criminal charge against him ;^ or by any deception prac- tised on the prisoner, or false representation made to him for that purpose, provided there is no reason to suppose that the inducement held out was calculated to produce any untrue confession, which is the main point to be considered.^ So, a confession is admissible, though it is elicited by questions) whether put to the prisoner by a magistrate, officer, or pri- vate person ; and the form of the question is immaterial to the admissibility, even though it assumes the prisoner's guilt* In all these cases the evidence may be laid before the Jury, however little it may weigh, under the circumstances, and however reprehensible may be the mode in which, in some of them, it was obtained. All persons, except counsellors and attorneys, are compellable at common law to reveal what ' they may have heard ; and counsellors and attorneys are ex- cepted, only because it is absolutely necessary, for the sake of their clients, and of remedial justice, that communica- tions to them should be protected.^ Neither is it necessary to the admissibility of any confession, to whomsoever it may have been made, that it should appear that the pris- oner was warned that what he said would be used against him. On the contrary, if the confession was voluntary, it is sufficient, though it should appear that he was not so warned.^ 500-510. So, if it was overheard, whether said to himself or to another. Kex V. Simons, Id. 540. 1 Kex V. Spilsbury, 7 C. & P. 187. 2 Rex V. Green, 6 C. & P. 655 ; Rex v. Lloyd, Id. 393. 3 Rex V. Derrington, 2 C. & P. 418 ; Hurley's case, 2 Stark. Ev. 12, n. * Rex V. Wild, 1 Mood. Cr. Cas. 452 ; Rex v. Thornton, Id. 27 ; Gibney's case, Jebb's Cr. Caa. 15 ; Kerr's ease, 8 C. & P. 179. See Joy on Confes- sions, p. 34-40, 42-44 ; Arnold's case, 8 C. & P. 622 ; Supra, § 225, note (I)- 5 Per Patteson, J., in Rex v. Shaw, 6 C. & P. 372. Physicians and clergy- men, by statutes. [^Infra, §§ 247, 248, and notes.] 6 Gibney's case, Jebb's Cr. Cas. 15; Rex v. Magill, cited in MoNally's Evid. 38; Regina v. Arnold, 8 C. & P. 622 ; Joy on Confessions, p. 45-48. CHAP. XII.] ' OF CONFESSIONS. 323 § 230. It has been thought, that illegal imprisonment ex- erted such influence upon the mind of the prisoner as to justify the inference that his confessions, made during its continuance, were not voluntary ; and therefore they have been rejected.^ But this doctrine cannot yet be considered as satisfactorily established.^ § 231. The object of all the care, which, as we have now seen, is taken to exclude confessions which were not volun- tary, is to exclude testimony not probably true. But where, in consequence of the information obtained from the prisoner, the property stolen, or the instrument of the crime, or the bloody clothes of the person murdered, or any other material fact is discovered, it is competent to show that such discov- ery was made conformably to the information given by the prisoner. The statement as to his knowledge of the place where the property or other evidence was to be found, being thus confirmed by the fact, is proved to be true, and not to have been fabricated in consequence of any inducement. It is competent, therefore, to inquire, whether the prisoner stated that the thing would be found by searching a particular place, and to prove ^that it was accordingly so found ; but it would not be competent to inquire, whether he confessed | that he had concealed it there.^ This limitation of the rule was distinctly laid down by Lord Eldon, who said, that where the knowledge of any fact was obtained from a pris- oner, under such a promise as excluded the confession itself from being given in evidence, he should direct an acquittal ; unless the fact itself proved would have been sufficient to warrant a conviction, without any confession leading to it.* 1 Per' Holroyd, J., in Ackroyd and Warburton's case, 1 Lewin's Cr. Cas. 49. a Rex V. Thornton, 1 Mood. Cr. Cas. 27. 3 1 Phil. Evid. 4H ; Warickshall's case, 1 Leach's Cr. Cas. 298 ; Mosey's case, Id. 301, n.; Commonwealth u. Knapp, 9 Pick. 496, 511; Kegina v. Gould, 9 C. & P. 364 ; Rex v. Harris, 1 Mood. Cr. Cas. 338. * 2 East, P. C. 657; Harvey's case, Id. 668; Lockhart's case, 1 Leach's Cr. Cas. 430. 324 LAW OF EVIDBNCB. [PART II. § 232. If the prisoner himself produces the goods stolen, and delivers them up to the prosecutor, notwithstanding it may appear that this was done upon inducements to confess, held out by the latter, there seems no reason to reject the declarations of the prisoner, contemporaneous with the act of delivery, and explanatory of its character and design, though they may amount to a confession of guilt ; ^ but whatever he may have said at the same time, not qualify- ing or explaining the act of delivery, is to be rejected. And if, in consequence of the confession of the prisoner, thus im- properly induced, and of the information by him given, the search for the property or person in question, jorowes wholly ineffectual, no proof of either will be received. The confes- sion is excluded, because, being made under the influence of a promise, it cannot be relied upon ; and the acts and infor- mation of the prisoner, under the same influence, not being confirmed by the finding of the property or person, are open to the same objection. The influence which may produce a groundless confession, may also produce groundless con- duct.2 § 233. As to the prisoner's liability to be affected by the confessions of others, it may be remarked, in general, that the principle of the law in civil and criminal cases, is the same. In civil cases, as we have already seen,^ when once the fact of agency or partnership is established, every act and declaration of one, in furtherance of the common busi- ness, and until its completion, is deemed the act of all. And so, in cases of conspiracy, riot, or other crime, perpetrated by several persons, when once the conspiracy or combination is established, the act or declaration of one conspirator, or ac- complice, in the prosecution of the enterprise, is considered the act of all, and is evidence against all.* Each is deemed 1 R& V. Griffin, Rugs. & Ry. 151 ; Rex v. Jones, Id. 152. 2 Rex V. Jenkins, Russ. & Ry. 492 ; Regina v. Hearn, 1 Car. & Marsh. 109. 3 Supra, §§ 112, 113, 114, 174, 176, 177. * So is the Roman Law. " Confessio unius non probat in prsejudicium CHAP. XII.] OF CONFESSIONS. 826 to assent to, or command what is done by any other, in furtherance of the common object.^ Thus, in an indictment against the owner of a ship, for violation of the statutes against the slave-trade, testimony of the declarations of the master, being part of the res gestce, connected with acts in furtherance of the voyage, and within the scope of his au- thority, as an agent of the owner, in the conduct of the guilty enterprise, is admissible against the owner.^ But after the common enterprise is at an end, whether by accomplishment or abandonment, is not material, no one is permitted, by any subsequent act or declaration of his own, to affect the others. His confession, therefore, subsequently made, even though by the plea of guilty, is not admissible in evidence, as such, against any but himself.^ If it were made in the presence of another, and addressed to him, it might, in certain circum- stances, be receivable, on the ground of assent, or implied admission. In fine, the declarations of a conspirator or accomplice are receivable against his fellows, only when they are either in themselves acts, or accompany and explain acts, for which the others are responsible ; but not when they are in the nature of narratives, descriptions, or subsequent confessiftns.* alterius; quia aliis esset in manu confitentis dicere quod vellet, et sic jus alte^'i quaesitum auferre, quando omninb jure prohibent ; — etiamsi talis oon- fitens esset omni exeeptione major. Sed limitabis, quando inter partes con- venit parere confessiorii et dicto unius alterius." Mascard. De Probat. Concl. 486, Vol. 1, p. 409. 1 Per Story, J., in United States v. Gooding, 12 Wheat. 469. And see supra, § 111, arid eases there cited. The American Fur Company v. The United States, 2 Peters, 358 ; Commonwealth v. Eberie et al. 3 S. & R. 9 ; Wilbur V. Strickland, 1 Rawle, 458 ; Reitenbacfc v. Reitenback, Id. 362 ; 2 Stark. Evid. 232-237 ; The State v. Soper, 4 Shepl. 293. 2 United States v. Gooding, 12 Wheat. 460. 3 Rex V. Turner, 1 Mood. Cr. Cas. 347; Rex v. Appleby, 3 Stark. R. 33. And see Melen v. Andrews, 1 M. & M. 336, per Parke, J. ; Regina v. Hinks, 1 Den. Cr.Cas. 84; 1 Phil. Evid. 199, (9th ed.) ; Regina v. Blake, 6 Ad. & El. 126, N. S. 4 1 Phil, on Evid. 414 ; 4 Hawk. P. C, B. 2, oh. 46, § 34 ; Tong's case, Sir J. Kelyng's R. 18, 5th Res. In a case of piracy, where the persons who VOL. I. 28 326 LAW OP EVIDENCE. [PART II. § 234. The same principle prevails in cases of agency. In general, no person is answerable criminally for the acts of his servants or agents, whether he be the prosecutor or the accused, unless a criminal design is brought home to him. The act of the agent or servant may be shown in evidence, as proof that such an act was so done ; for a fact must be established by the same evidence, whether it is to be fol- lowed by a criminal or civil consequence ; but it is a totally different question, in the consideration of criminal, as distin- guished from civil justice, how the principle may be affected by the fact, when so established.^ Wliere it was proposed to show that an agent of the prosecutor, not called as a witness, offered a bribe to a witness, who also was not called, the evi- dence was held inadmissible ; though the general doctrine, as above stated, was recognized.^ § 235. It was formerly doubted whether the confession of the prisoner, indicted for high treason, could be received in evidence, unless it were made upon his arraignment, in open Court, and in answer to the indictment ; the statutes on this made the confessions were not identified, but the evidence was only that some did c6nfess, it was held that, though such confessions could not be applied to any one of the prisoners, as proof of his personal guilt, yet the Jury might consider them, so far as they went to identify the piratical ves- sel. United States v. Gibert, 2 Sumn. 16. 1 Ld. Melville's case, 29 Howell's St. Tr. 764 ; The Queen's case, 2 B. & B. 306, 307; Supra, % 170. 2 The Queen's case, 2 B. & B. 302, 306, 307, 308, 309. To the rule, thus generally laid down, there is an apparent exception, in the case of the pro- prietor of a newspaper, who is, prima facie, criminally responsible for any libel it contains, though inserted by his agent or servant without his knowl- edge. But Lord Tenterden considered this case as falling strictly within the principle of the rule ; for " surely," said he, " a person who derives profit from, and who furnishes means for carrying on the concern, and intrusts the conduct of the publication to one whom he selects, and'in whom he confides, may be said to cause to be published what actually appears, and ought to be answerable, though you cannot show that he was individually concerned in the particular publication.'' Rex v. Gutch, 1 M. & M. 433, 437. See also Story on Agency, §§ 452, 453, 455 ; Rex v. Almon, 5 Burr. 2686 ; Rex i;. Walter, 3 Esp. 21 ; Southwick v. Stephens, 10 Johns. 443. CHAP. XII.] OF CONFESSIONS. 327 subject requiring the testimony of two witnesses to some overt act of treason.^ But it was afterwards settled, and it is now agreed, that though, by those statutes, no confession could operate conclusively, and without other proof, to con- vict the party of treason, unless it were judicially made in open Court upon the arraignment ; yet that, in all cases, the confession of a criminal might be given in evidence against him ; and that in cases of treason, if such confession be proved by two witnesses, it is proper evidence to be left to a Jury.^ And in regard to collateral facts, which do not con- duce to the proof of any overt acts of treason, they may be proved as at Common Law, by any evidence competent in other criminal cases.^ 1 Foster's Disc. 1, § 8, p. 232-244; 1 East's P. C. 131, 132, 133. Under the Stat. 1 Ed. 6, u. 12, and 5 Ed. 6, u. 11, requiring two witnesses to con- vict of treason, it has been held sufficient, if one witness prove one overt act, and another prove another, if both acts conduce to the perpetration of the same species of treason charged upon the prisoner. Lord Stafford's ease, T. Kaym. 407; 3 St. Tr. 204, 205; 1 Bast's P. ,C. 129; 1 Burr's Trial, 196. 2 Francia's case, 1 East's P. C. 133, 134, 135. 3 Smith's- case, Fost. Disc. p. 242 ; 1 East's P. C. 130. See infra, §§ 254, 255. 328 . LAW OF EVIDENCE. [PART II. CHAPTER XIII. OF EVIDENCE EXCLUDED FROM PUBLIC POLICY. § 236. There are some kinds of evidence which the law excludes, or dispenses with, on grounds of public policy ; be- cause greater mischiefs would probably result from requiring or permitting its admission, than from wholly rejecting it. The principle of this rule of the law has respect, in some cases, to the person testifying, and in others, to the matters concerning which he is interrogated ; thus including the case of the party himself, and that of the husband or wife of the party, on the one hand, and, on the other, the subject of professional communications, awards, secrets of State, and some others. The two former of these belong more prop- erly to the head of the Competency of Witnesses, under which they will accordingly be hereafter treated.^ The latter we shall now proceed briefly to consider. § 237. And in the first place, in regard to professional communications, the reason of public policy, which excludes them, applies solely, as we shall presently show, to those between a client and his legal adviser ; and the rule is clear and well settled, that the confidential counsellor, solicitor, or attorney, of the party, cannot be compelled to disclose papers delivered, or communications made to him, or letters or en- tries made by him, in that capacity.^ " This protection," 1 llnfra, § 326-429.] 2 In Greenough v. Gaskell, 1 My. & K. 101. In thia decision, the Lord Chancellor was assisted by consultation with Lord Lyndhurst, Tindal, C. J., and Parke, J., 4 B. & Ad. 876. And it is mentioned, as one in which all the 3uthorities have been reviewed, in 2 M. & W. 100, per Lord Abinger, and is cited in Russell v. Jackson, 15 Jur. 1117, as settling the law on this sub- ject. See also, 16 Jur. 30, 41-48, where the cases on this subject are re- CHAP. XIII.] EVIDENCE EXCLUDED FROM PUBLIC POLICY. 329 said Lord Ch. Brougham, "is not qualified by any reference to proceedings pending, or in contemplation. If, touching matters that come within the ordinary scope of professional employment, they receive a communication in their profes- sional capacity, either from a client, or on his account and , for his benefit, in the transaction of his business, or, which amounts to the same thing, if they commit to paper in the course of their employment on his behalf, matters which they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to dis- close the information, or produce the papers, in any Court of Law or Equity, either as party or as witness." ^ § 238. " The foundation of this rule," he adds, " is not on account of any particular importance which the law attrib- utes to the business of legal professors, or any particular disposition to afford them protection. But it is out of regard to the interests of justice, which cannot be upholden,.and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations, which form the subject of all judicial proceedings." ^ If such viewed. The earliest reported case on this subject is that of Berd v. Love- lace, 19 Eliz., in Chancery, Gary's E. 88. See also Austen v. Vesey, Id. 89 ; Kelway v. Kelway, Id. 127 ; Dennis v. Codrington, Id. 143 ; all which are stated at large by Mr. Metcalf, in his notes to 2 Stark. Evid. 395, (1st Am. ed.) See also 12 Vin. Abr. Evid. B. a; Wilson v. Kastall, 4 T. R. 753; Kex V. Withers, 2 Campb.578 ; Wilson v. Troup, 7 Johns. Ch. 25 ; 2 Cowen, 195; Mills v. Oddy, 6 C. & P. 728; Anon. 8 Mass. 370; Walker v. Wild- man, 6 Madd. K. 47 ; Story's Eq. PI. 458-461 ; Jackson u.Burtis, 14 Johns. 391 ; Foster v. Hall, 12 Pick. 89 ; Chirac v. Reinicker, 11 Wheat. 295 ; Rex t>. Shaw, 6 C. & P. 372 ; Granger v. Warrington, 3 Gilm. 299 ; Wheeler v. Hill, 4 Shepl. 329. 1 Greenough v. Gaskell, 1 My. & K. 102, 103. The privilege is held to extend to every communication made by a client to his attorney, though made under a mistaken belief of its being necessary to his case. Cleave v. Jones, 8 Eng. Law & Eq. R. 554, per Martin, B. And see Aiken v. Kil- burne, 14 Shepl. 252. 2 [" It is to be remembered whenever a question of this kind arises, that' 28* 330 LAW OF EVIDENCE. [PAKT II. communications were not protected, no man, as the same learned Judge remarked in another case, would dare to con- sult a professional adviser, with a view to his defence, or to the enforcement of his rights ; and no man could safely come into a Court, either to obtain redress, or to defend himself.^ communications to attorneys and counsel are not protected from disclosure in Court for the reason that they are made confidentially ; for no such pro- tection is given to confidential communications made to members of other professions. ' The principle of the rule, which applies to attorneys and coun- sel,' says Chief Justice Shaw, in Hatton v. Robinson, 14 Pick. 422, 'is, that so numerous and complex are the laws by which the rights and duties of. citizens are governed, so important is it they should be permitted to avail themselves of the superior skill and learning of those who are sanctioned by the law as its ministers and expounders, both in ascertaining their rights in the country, and maintaining them most safely in Courts, without publishing those facts which they have a right to keep secret, but which must be dis- closed to a legal adviser and advocate to enable him successfully to perform the duties of his office, that the law has considered it the wisest policy to encourage and sustain this confidence, by requiring that on such facts the mouth of the attorney shall be forever sealed.' " By Metcalf, J., in Barnes u. Harris, 7 Cush. 576, 578.] 1 Bolton V. The Corporation of Liverpool, 1 My. & K. 94, 95. " This rule seems to be correlative with that which governs the summary jurisdic- tion of the Courts over attorneys. In Ex parte Aiken, (4 B. & Aid. 49 ; see also Ex parte Yeatman, 4 Dowl. P. C. 309,) that rule is laid down thus: — ' Where an attorney is employed in a matter, wholly unconnected with his professional character, the Court will not interfere in a summary way to compel him to execute faithfully the trust reposed in him. But where the employment is so connected with his professional character as to afford a presumption that his character formed the ground of his employ- ment by the client, there the Court will exercise this jurisdiction.' So, where the communication made relates to a circumstance so connected with the employment as an attorney, that the character formed the ground of the communication, it is privileged from disclosure." Per Alderson, J., in Tir- quind V. Knight, 2 M. & W. 101. The Roman Law rejected the evidence of the procurator and the advocate, in nearlj' the same cases in which the Common Law holds them incompetent to testify ; but not for the same rea- sons ; the latter regarding the general interest of the community, as stated in the text, while the former seems to consider them as not credible, because of the identity of their interest, opinions, and prejudices, with those of their clients. Mascard. de Probat. Vol. I. Concl. 66, Vol. Ill Concl. 1239 ; P. Farinacii Opera, torn. 2, tit. 6, Quaest. 60, lUat. 5, 6. CHAP. XIII.] EVIDENCE EXCLUDED BROM PUBLIC POLICY. 331 § 239. In regafd to the persons, to whom the communica- tions must have been made, in order to be thus protected, they must have been made to the cowresel, attorney, or solic- itor, acting, for the time being, in the character of legal adviser^ For the reason of the rule, having respect solely to the fre? and unembarrassed administration of justice, and to security in the enjoyment of civil rights, does not extend to things confidentially communicated to other persons, nor even to those which come to the knowledge of counsel, when not standing in that relation to the party. Whether he be called as a witness, or be made defendant, and a discovery sought from him, as such, by bill in Chancery, whatever he has learned, as counsel, solicitor, or attorney, he is not obliged nor permitted to disclose.^ And this protection extends also to all the necessary organs of communication between the attorney and his client ; an interpreter ^ and an agent * being considered as standing in precisely the same situation as the attorney himself, and under the same obligation of secrecy. It extends also to a case submitted to counsel in a foreign cpimtry, and his opinion thereon.'' It was formerly thought that an attorney's or a barrister's clerk was not within the reason and exigency of the rule ; but it is now considered otherwise, from the necessity they are under to employ clerks, being unable to transact all their business in person ; and 1 If the party has been requested to act as solicitor, and the communica- tion is made under the impression that the request has been acceded to, it is privileged. Smith v. Fell, 2 Curt. 667; [Sargent v. Hampden, 38 Maine, 581; MoLellan v. Longfellow, 32 lb. 494.] See, as to consultation by the party's wife, Eeg. v. Farley, 2 Car. & Kir. 313. One who is merely a real estate broker, agent, and conveyancer, is not a legal adviser. Matthews's Estate, 4 Amer. Law J. 356, N. S. a Greenough v. Gaskell, 1 My. & K. 95 ; Wilson v. Eastall, 4 T. R 753. 3 Du Barre v. Livette, Peake's Gas. 77, explained in 4 T. R. 756 ; Jack- son V. French, 3 Wend. 337; Andrews v. Solomon, 1 Pet. C. C. R. 356; Parker v. Carter, 4 Munf. 273. < 4 Perkins v. Hawkshaw, 2 Stark. R. 239 ; Tait on Evid. 385 ; Bunbury V. Bunbury, 2 Beav. 173 ; Steele v. Stewart, 1 Phil. Ch. R. 471 j Carpmael V. Powis, 1 Phil. Ch. R. 687; 9 Beav. 16, S. C. 5 Bunbury v. Bunbury, 2 Bear. 173. 332 LAW OF EVIDENCE. [PAET II. accordingly clerks are not compellable to disclose facts, com- ing to their knowledge in the course of their employment in that capacity, to which the attorney or barrister himself could not be interrogated.! j^^^ as the privilege is not personal to the attorney, but is a rule of law,' for the protection of the client, the executor of the attorney seems to be within the rule, in regard to papers coming to his hands, as the personal rep- resentative of the attorney.^ § 240. This protection extends to every communication which the client makes to his legal adviser, for the purpose of professional advice or aid, upon the subject of his rights and liabilities.^ Nor is it necessary that any judicial proceedings in particular should have been commenced or contemplated ; it is enough if the matter in hand, like every other human transaction, may, by possibility, become the subject of judi- cial inquiry. " If," said Lord Ch. Brougham, " the privilege were confined to communications connected with suits be- gun, or intended, or expected, or apprehended, no one could safely adopt such precautions, as might eventually rendejr any proceedings successful, or all proceedings superfluous." * 1 Taylor v. Foster, 2 C. & P. 195, per Best, J., cited and approved in 12 Pick. 93 ; Kex v. Upper Boddington, 8 Dow. & Ry. 726, per Bayley, J.; Foote V. Hayne, 1 C. & P. 545, per Abbott, C. J.; K. & M. 165, S. C. ; Jackson v. French, 3 Wend. 837; Power v. Kent, l.Cowen, 211; Bowman V. Norton, 5 C. & P. 177; Shore v. Bedford, 5 M. & Gr. 271; Jardine v. Sheridan, 2 C. & K. 24. [Communications made while seeking legal advice in a consultation with a student at law in an attorney's office, he not be- ing the agent or clerk of the attorney lor any purpose, are not protected. Barnes v. Harris, 7 Cush. 576, 678. See also Holman v. Kimball, 22 Verm. ■555 ; [Goddard v. Gardner, 28 Conn. 172.] 3 Fenwick v. Reed, 1 Meriv. 114, 120, arg. 3 This general rule is limited to communications having a lawful object; for if the purpose contemplated be a violation of law, it has been deemed not to be within the rule of privileged communications ; because it is not a solicitor's duty to contrive fraud, or to advise his client as to the means of evading the law. Russell v. Jackson, 15 Jur. 1117 ; Bank of Utica v. Mer- sereau, 3 Barb. Ch. R. 528. 4 1 M. & K. 102, 103 ; Carpmael v. Powis, 9 Beav. 16 ; 1 Phillips, 687; Penruddock v. Hammond, 11 Beav. 59. See also the observations of the CHAP. XIII.] EVIDENCE EXCLUDED FROM PUBLIC POLICY. 333 Whether the party himself can be compelled, by a bill in Chancery, to produce a case which he has laid before coun- sel, with the opinion given thereon, is not perfectly clear. At one time it was held by the House of Lords, that he might be compelled to produce the case which he had sent, but not the opinion which he had received.^ This decision, however, was not satisfactory; and though it was silently followed in one case,^ and reluctantly submitted to in another,^ yet its principle has since been ably controverted and refuted.* The great object of the rule seems plainly to learned Judges, in Cromack v. Heathcote, 2 Brod. & B. 4, to the same effect ; Gresley's Evid. 32, 33 ; Story's Eq. PI. § 600 ; Moore v. Terrell, 4 B. & Ad. 870 ; Beltzhoover v. Blackstock, 3 Watts, 20; Taylor v. Black- low, 3 Bing. N. Q. 235; Foster v. Hall, 12 Pick. 89, 92, 99, where the English decisions on this subject are fully reviewed by the learned Chief Justice ; Doe v. Harris, 5 C. & P. 592 ; Walker v. Wildman, 6 Madd. R. 47. There are some decisions which require that a, suit be either pending or anticipated. See Williams v. Mundie, Ry. & M. 34 ; Broad v, Pitt, 3 C. & P. 518; Duffin v. Smith, Peake's Cas. 108. But these are now overruled. See Pearse v. Pearse, 11 Jur. 52; 1 De Gex & Smale, 12, S. C. The law of Scotland is the same in this matter as that of England. Tait on Evid. 384. 1 Radoliffe v. Fursman, 2 Bro. P. C. 514. 2 Preston v. Carr, 1 Y. & Jer. 175. 3 Newton v. Beresford, 1 You. 376. 4 In Bolton v. Corp. of Liverpool, 1 My. & K. 88, per Ld. Ch. Brougham ; and in Pearse v. Pearse, 11 Jur. 52, by Knight Bruce, V. C. In the follow- ing observations of this learned Judge, we have the view at present taken of this vexed question in England. " That cases laid before counsel, on behalf of a client, stand upon the same footing as other professional oommunica- tions'from the client to the counsel and solicitor, or to either of them, may, I suppose, be assumed ; and that, as far as any discovery by the solicitor or counsel is concerned, the question of the existence or non-existence of any suit, claim, or dispute, is immaterial — the law providing for the client's pro- tection in each state of circumstances, and in each equally, is, I suppose, not a disputable point. I suppose Cromack v. Heathcote, (2 Brod. & Bing. 4,) to be now universally acceded to, and the doctrine of this Court to have been correctly stated by Lord Lyndhurst, in Herring v. Clobery, (1 Phil. 91,) when he said, 'I lay down this rule with reference to this cause, that, where an attorney is employed by a client professionally to transact profes- sional business, all the communications that pass between the client and the attorney, in the course and for the purpose of that business, are privileged. 334 LAW OF EVIDENCE. [PAKT II. require that the entire professional intercourse between client and attorney, whatever it may have consisted in, should be protected by profound secrecy.^ communications, and that the privilege is the privilege of the client, and not of the attorney.' This I take to be not a peculiar, but a general rule of jurisprudence. The civil law, indeed, considered the advocate and client so identified or bound together, that the advocate was, I believe, generally not allowed to be a witness for the client. ' Ne patroni in causa, cut patroci- nium prcestilerunt, testimonium dicant,' says the Digest, (Dig. lib. 22, tit. 5, 1. 25.) An old Jurist, indeed, appears to have thought, that, by putting an advocate to the torture, he might have made a good witness for his client ; but this seems not to have met with general approbation. Professors of the law, probably, were not disposed to encourage the dogma practically. Voet puts the comn)unications between a client and an advocate on the footing of those between a penitent and his priest. He says : ' Non etiam adoocaius aut procurator in ea causa, cui patrocinium prmstitit aut procurationem, ido- neus testis est, sice pro cliente sive contra eum producatur ; saltern non ad id, ut pandere coyeretur ea, quce non aliunde quam ex revelatione clientis, comperta hdbet; eo modo, quo, etsacerdoti reoelare ea quce ex auriculari didicit confes- sione, nefas est.' Now, whether laying or not laying stress on the observa- tions made by the late Lord Chief Baron, in Knight v. Lord Waterford, (2 Y. & C. 40, 41,) — observations, I need not say, well worthy of atten- tion — I confess myself at a loss to perceive any substantial difference, in point of reason, or principle, or convenience, between the liability of the client and that of his counsel or solicitor, to disclose the client's communica- tions made in confidence professionally to either. True, the client is or may be compellable to disclose all, that, before he consulted the counsel or solic- itor, he knew, believed, or had seen or heard ; but the question is not, I apprehend, one as to the greater or less probability of more or less damage. The question is, I suppose, one of principle — one that ought to be decided according to certain rules of jurisprudence ; nor is the exemption of the solicitor or counsel from compulsory discovery confined to advice given, or opinions stated. It extends to facts communicated by the client. Lord Eldon has said (19 Ves. 267): 'The case might easily be put, that a most honest man, so changing his situation, might communicate a fact, appearing to him to have no connection with the case, and yet the whole title of his former client might depend on it. Though Sir John Strange's opinion was, that an attorney- might, if he pleased, give evidence of his client's secrets, I take it to be clear, that no Court would permit him to give such evidence, or would have any difliculty, if a solicitor, voluntarily changing his situation, was, in his new character, proceeding to communi- 1 Thus, what the attorney saw, namely, the destruction of an instrument, was held privileged. Kobson v. Kemp, 5 Esp. 52. CHAP. XIII.] EVIDENCE EXCLUDED FROM PUBLIC POLICY. 335 § 240 a. In regard to the obligation of the party to dis- cover and produce the opinion of counsel, various distinctions cate a material fact. A short way of preventing him would be, by striking him off the roll..' But as to damage : a man, having laid a case before counsel, may die, leaving all the rest of mankind ignorant of a blot on his title stated in the case, and not discoverable by any other means. The whole fortunes of his family may turn on the question, whether the case shall be discovered, and may be subverted by its discovery. Again, the client is certainly exempted from liability to discover communications between himself and his counsel or solicitor after litigation commenced, or after the commencement of a dispute ending in litigation ; at least, if they relate to the dispute, or matter in dispute. Upon this I need scarcely refer to a class of authorities, to which Hughes v. Biddulph, (4 Russ. 160,) Nias V. Northern and Eastern Railway Company, (3 Myl. & Cr. 355,) before the present Lord Chancellor, in his former chancellorship, and Holmes v. Baddeley, (1 Phil. 476,) decided by Lord Lyndhurst, belong. But what, for the purpose of discovery, is the distinction in point of reason, or princi- ple, or justice, or convenience, between such communications and those which differ from them only in this, that they precede, instead of following, the actual arising, not of a cause for dispute, but of a dispute, I have never hitherto been able to perceive. A man is in possession of an estate as owner ; he is not under any fiduciary obligation ; he finds a flaw, or a supposed flaw, in his title, which it is not, in point of law or equity, his duty to disclose to any person ; he believes that the flaw or supposed defect is not known to the only person, who, if it is a defect, is entitled to take advantage of it, but that this person may probably or possibly soon hear of it, and then institute a suit, or make a claim. Under this apprehension he consults a solicitor, and, through the solicitor, lays a case before counsel on the subject, and receives his opinion. Some time afterwards the apprehended adversary becomes an actual adversary, for, coming to the knowledge of the defect or supposed flaw in the title, he makes a claim, and, after a preliminary correspondence, commences a suit in equity to enforce it ; but between the commencement of the correspondence and the actual institution of the suit, the man in posses- sion again consults a solicitor, and through him again lays a case before counsel. According to the respondent's argument before me on this occasion, the defendant, in the instance that 1 have supposed, is as clearly bound to dis- close the first consultation and the first case, as he is clearly exempted from ' discovering the second consultation and the second case. I have, I repeat, yet to learn that such a distinction has any foundation in reason or con- venience. The discovery and vindication and establishment of truth, are main purposes, certainly, of the existence qf courts of justice ; still, for the obtaining of these obje(jts, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly, or gained by unfair means — not every channel is or ought 336 LAW OF EVIDENCE. [PART 11. have been attempted to be set up, in favor of a discovery of communications made before litigation, though in contem- plation of, and with reference to such litigation, which after- wards took place ; and again, in respect to communications which, though in fabt made after the dispute between the parties, which was followed by litigation, were yet made neither in contemplation of, nor with reference to, such liti- gation ; and again, in regard to communications of cases or statements of fact, made on behalf of a party by or- for his solicitor or legal adviser, on the subject-matter in question, after litigation commenced, or in contemplation of litigation on the same subject with other persons, with the view of asserting the same right ; but all these distinctions have been overruled, and the communications held to be within the to be open to them. The practical inefficaoy of torture is not, I suppose, the most weighty objection to that mode of examination, nor probably would the purpose of the mere disclosure of truth have been otherwise than advanced by a refusal, on the part of the Lord Chancellor in 1815, to act against the solicitor, who, in the cause between Lord Cholmondeley and Lord Clinton, had acted or proposed to act in the manner which Lord Eldoa thought it right to prohibit. Truth, like all other good things, may be loved unwisely — may be pursued too keenly — may cost too much. And surely the meanness and the mischief of prying into a man's confidential consultations with his legal adviser, the general evil of infusing reserve and dissimulation, uneasi- ness and suspicion and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself." See 11 Jur. pp. 54, 55 ; 1 De Gex & Smale, 25-29. See also Gresley on Evid. 32, 33 ; Bp. of Meath v. Marq. of Winchester, 10 Bing. 330, 375, 454, 455 ; Nias V. The Northern, &c. Railway Co. 3 My. & C. 355, 357 ; Bunbury v. Bun- bury, 2 Beav. 1 73 ; Herring v. Clobery, 1 Turn. & Phil. 91 ; Jones v. Pugh, Id. 96 ; Law Mag. (London,) Vol.xvii. p. 51-74 ; and Vol. xxx.p. 107-123; Holmes v. Baddeley, 1 Phil. Ch. R. 476. Lord Langdale has held, that the privilege of a client, as to discovery, was not coextensive with that of his solicitor; and therefore he compelled the son and heir to discover a case, which had been submitted to counsel by his father, and had come, with the estate, to his hands. Greenlaw v. King, 1 Beavan, R. 137. But his opinion, on the general question, whether the party is bound to discover a case sub- mitted to his couiisel, is known to be opposed to that of a majority of the English Judges, though still retained by himself. See Crisp v. Platel, 6 Beav. 62; Reece v. Trye, 9 Beav. 816, 318, 319; Peile v. Stoddart, 13 Jur. 373. CHAP. XIII.] EVIDENCE EXCLUDED FROM PUBLIC POLICY. S&T privilege.^ And where a cestui que trust filed a bill against his trustee, to set aside a purchase by the latter of the trust property, made thirty years back ; and the trustee filed his cross-bill, alleging that the cestui que trust had long known his situation in respect to the property, and had acquiesced in the purchase, and in proof thereof that he had, fifteen years before, taken the opinion of counsel thereon, of which he prayed a discovery and production ; it was held that the opinion, as it was taken after the dispute had arisen which was the subject of the original and cross-bill, and for the guidance of one of the parties in respect of that very dispute, was privileged at the time it was taken; and as the same dispute was still the subject of the litigation, the communi- cation still retained its privilege.^ But where a bill for the specific performance of a contract for the sale of an estate was brought by the assignees of a bankrupt who has sold it under their commission, and a cross-bill was filed against them for discovery, in aid of the defence, it was held that the privilege of protection did not extend to professional and confidential communications between the defendants and their counsel, respecting the property and before the sale, but only to such as had passed after the sale; and that it did not extend to communications between thgm in the relation of principal and agent ; nor to those had by the defendants or their counsel with the insolvent, or his creditors, or the pro- visional assignee, or on behalf of the wife of the insolvent.^ § 241. Upon the foregoing principles it has been held, that the attorney is not bound to produce title deeds, or other doc- uments, left with him by his client for professional advice ; though he may be examined to the fact of their existence, in order to let in secondary evidence of their contents, which 1 Ld. Walsingham v. Goodricke, 8 Hare, 122, 125 ; Hughes v. Biddtilph, 4 Kuss. 190; Vent i. Pacey, Id, 193 ; Clagett v. Phillips, 2 Y. & C. 82; Combe V. Corp. of Lond. 1 Y. & C. 631 ; Holmes v. Baddeley, 1 Phil. Ch. K. 476. 2 Woods V. Woods, 9 Jur. 615, per Sir J. Wigram, V. C. 3 Robinson v. Flight, 8 Jur. 888, per Ld. Langdale. VOL. I. 29 338 LAW OF EVIDENCE. [PART 11. must be from some other source than himself.^ But whether the object of leaving the documents with the attorney was for professional advice or for another purpose, may be deter- mined by the Judge.^ If he was consulted merely as a con- veyancer, to draw deeds of conveyance, the communications made to him in that capacity are within the rule of protec- tion,^ even though he was employed as the mutual adviser and counsel of both parties ; for it would be most mischiev- ous, said the learned Judges in the Common Pleas, if it could be doubted, whether or not an attorney, consulted upon a man's title to an estate, were at liberty to divulge a flaw.^ Neither does the rule require any regular retainer, as counsel, nor any particular form of application or engage- ment, nor the payment of fees. It is enough that he was applied to for advice or aid in his professional character.^ But this character must have been known to the applicant ; for if a person should be consulted confidentially, on the 1 Brard v. Ackerman, 5 Esp. 119 ; Doe v. Harris, 5 C. & P. 592; Jack- son V. Burtis, 14 Johns. 391 ; Dale v. Livingston, 4 Wend. 558; Brandt «. Klein, 17 Johns. 335; Jackson v. McVey, 18 Johns. 330; Bevan v. Wa- ters, 1 M. & M. 235 ; Eicke v. Nokes, Id. 303 ; Mills v. Oddy, 6 C. & P. 728; Marston v. Downes, Id. 381 ; 1 Ad. & El. 31, S. C; explained in Hibbert v. Knight, 12 Jur. 162 ; Bate v. Kinsey, 1 C. M. & R. 38 ; Doe ». Gilbert, 7 M. & W. 102 ; Nixon v. Mayoh, 1 M. & Rob. 76 ; Davies v. Wa- ters, 9 M. & W. 608'; Coates v. Birch, 1 G. & D. 474 ; 1 Dowl. P. C. 540 ; Doe V. Langdon, 12 Ad. & El. 711, N. S. 2 Reg. V. Jones, 1 Denis. Cr. Cas. 166. 3 Cromack v. Heathcote, 2 B. & B. 4 ; Parker v. Carter, 4 Munf. 273 ; / See also Wilson v. Troup, 7 Johns. Ch. 25. If he was employed as the con- ' veyancer and mutual counsel of both parties, either of them may compel the production of the deeds and papers, in a subsequent suit between themselves. So it was held in Chancery, in a suit by the wife against the husband, for specific performance of an agreement to charge certain estates with her jointure. Warde v. Warde, 15 Jur. 759. 4 Cromack v. Heathcote, 2 B. & B. 4 ; Doe v. Seaton, 2 Ad. & El. 171 ; Clay V. Williams, 2 Munf 105, 122 ; Doe v. Watkins, 3 Bing. N. C. 421. 5 Foster v. Hall, 12 Pick. 89. See also Bean o. Quimby, 5 N. Hamp. 94. An application to an attorney or solicitor, to advance money on a mortgage of property described in a forged will, shown to him, is not a privileged communication as to the will. Reg. u. Farley, 1 Denison, 197. And see Reg. V. Jones, Id. 166. CHAP. XIII.J EVIDENCE EXCLUDED FROM PUBLIC POLICY. 339 supposition that he was an attorney, when in fact he was ' not one, he will be compelled to disclose the matters com- : municated.^ § 242. This rule is limited to cases where the witness, or the defendant in a bill in Chancery treated as such, and so called to discover, learned the matter in -question only as counsel, solicitor, or attorney, and in no other way. If, there- fore, he were a party to the transaction, and especially if he were party to the fraud, (as, for example, if he turned in- former, after being engaged in a conspiracy,) or, in other words, if he were acting for himself, though he might also be employed for another, he would not be protected from disclosing ; for in such a case his knowledge would not be acquired solely by his being employed professiohally.^ § 243. The protection given by the law to such communi- cations does not cease with the termination of the suit, or other litigation or business, in which they were made ; nor is it aifected by the party's ceasing to employ the attorney, and retaining another ; nor by any other change of relations between them; nor by the death of the client. The seal of the law, once fixed upon them, remains forever ; tmless re- 1 Fountain v. Young, 6 Esp. 113; [Barnes u. Harris, 7 Cush. 576, 578.] 2 Greenough v. Gaskell, 1 My. & K. 103, 104; Desborough u. Rawlins, 3 My. & Craig, 515, 521-523 ; Story on Eq. PI. §§ 601, 602. In Duffin «. Snlith, Peake's Gas. 108, Lord Kenyon recognized this principle, though he applied it to the case of an attorney preparing title deeds, treating him as thereby becoming a party to the transaction ; but such are now held to be professional communications. [Nor is he privileged from disclosing facts, as the execution or alteration of a legal document, which have come to his knowledge by being done in his presence, though he was present in conse- quence of his engagement as counsel. Patten v. Moor, 9 Poster, 163. A communication to an attorney will not be protected, unless it appears that, at the time it was made, he was acting as legal adviser upon the very matter - to which the communication referred. Branden v. Gowing, 7 Rich, (S. C ) 459. Facts stated to an attorney, as reasons to show that the cause in which he is sought to be retained, does not conflict with the interests of a client for ■whom he is already employed, are not confidential communications. Heaton V. Findlay, 12 Penn. State R. 304.] 340 LAW OP EVIDENCE, " [PART II. moved by the party himself, in whose favor it was there placed.^ It is not removed without the client's consent, even though the interests of criminal justice may seem to require the production of the evidence.^ § 244. This rule is further illustrated by reference to the cases, in which the attorney may be examined, and which are therefore sometimes mentioned as exceptions to the rule. These apparent exceptions are, where the communication was made before the attorney was employed as such, or after his employment had ceased; — or where, though consulted by a friend, because he was an attorney, yet he refused to act as such, and was therefore only applied to as a friend; — or where there could not be said, in any correctness of speech, to be a communication at all ; as where, for instance, el fact, something that was done, became known to him, from his having been brought to a certain place by the circumstance of his being the attorney, but of which fact any other man, if there, would have been equally conusant (and even this has been held privileged in some of the cases) ; — or where the matter communicated was not in its nature private, and 1 Wilson V. Eastall, 4 T. E,. 759, per BuUer, J. ; Petrie's case, cited arg. 4 T. E. 756; Parker v. Yates, 12 Moore, 520; Merle v. Moore, E. & M. 390. And the client does not waive this privilege merely by calling the attorney as a ■witness, unless he also himself examines him in chief to the matter privileged. Vaillant u. Dodemead, 2 Atk. 524 ; Waldron v. AVard, Sty. 449. If several clients consult him respecting their common business, the consent of them all is necessary to enable him to testify ; even in an action in which only one of them is a party. Bank of Utioa v. Mersereau, 3 Barb. Ch. E. 528. Where the party's solicitor became trustee under a deed for the benefit of the client's creditors, it was held that communications sub- sequent to the deed were still privileged. Pritchard v. Foulkes, 1 Coop. 14. 2 Eex V. Smith, Phil. & Am. on Evid. 182; Eex v. Dixon, 3 Burr. 1687; Anon. 8 Mass. 370 ; Petrie's case, supra. But see Eegina v. Avery, 8 C. & P. 596, in which it was held that, where the same attorney acted for the mortgagee, in lending the money, and also for the prisoner, the mortgagor, in preparing the mortgage deed, and received from the prisoner, as part of his title deeds, a forged will, it was held, on a trial for forging the will, that it was not a privileged communication ; and the attorney was held bound to produce it. See also Shore v. Bedford, 5 Man. & Grang. 271. CHAP. XIII.] EVIDENCE EXCLUDED FROM PUBLIC POLICY. 341 could in no sense be termed the subject of a confidential dis- closure ; — or where the thing had no reference to the profes- , sional employment, though disclosed while the relation of attorney and client subsisted ; — or where the attorney, having made himself a subscribing witness, and thereby assumed another character for the occasion, adopted the duties which it imposes, and became bound to give evidence of all that a subscribing witness can be required to prove. In all such cases, it is plain that the attorney is not called upon to disclose matters, which he can be said to have learned by communi- cation with his client, or on his client's behalf, matters which were so committed to him, in his capacity of attorney, and matters which in that capacity alone, he had come to know.^ § 245. Thus, the attorney may be compelled to disclose the name of the person by whom he was retained, in order to let in the confessions of the real party in interest;^ — the char- acter in which his client employed him, whether that of executor or trustee, or on his private account;^ — the time when an instrument was put into his hands, but not its con- dition and appearance at that time, as, whether it were stamped or indorsed, or not;* — the fact of his paying over 1 Per Lord Brougham, in Greenough v. Gaskell, 1 My. & K. 104. See also DesbcJrougli v. Rawlins, 3 My. & Craig, 521 , 522 ; Lord Walsingham v. Goodricke, 3 Hare, K 122; Story's Eq. PI. §§ 601, 602; Bolton v. Corpo- ration of Liverpool, 1 My. & K. 88 ; Annesley v. E. of Anglesea, 1 7 How- ell's St. Tr. 1239-1244 ; Gillard u. Bates, 6 M. & W. 547 ; Rex v. Brewer, 6 C. & P. 363 ; Levers v. Van Buskirk, 4 Barr. 309. Communications between the solicitor and one of his clients' witnesses, as to the evidence to be given by the witness, are not privileged. Mackenzie v. Yeo, 2 Curt. 866, It has also been held, that communication between a testator and the solicitor who prepared his will, respecting the will and the trusts thereof, are not privileged. Russell v. Jackson, 15 Jur. 1117. 2 Levy V. Pope, 1 M. & M. 410 ; Brown v. Payson, 6 N. Hamp. 443 ; Chirac v. Reinicker, 11 Wheat. 280 ; Gower v. Emery, 6 Shepl. 79. 3 Beckwith v. Benner, 6 C. & P. 681. But see Chirac v. Reinicker, 11 Wheat. 280, 295, where it was held, that counsel could not disclose whether they were employed to conduct an ejectment for their client as landlord of the premises. 4 Wheatley v. Williams, 1 Mees. & W. 533 ; Brown v. Payson, 6 N. Hamp. • 29* h » 342 LAW OP EVIDENCE. [PAKT II. to his client moneys collected for him ; — the execution of a deed by his client which he attested;^ — a statement made by him to the adverse party.^ He may also be called to prove the identity of his client;^ — the fact of his having sworn to his answer in Chancery, if he were then present;* — usury in a loan made by him as broker, as well as attorney to the lender ; ^ — the fact that he or his client is in possession of a certain document of his client's, for the purpose of letting- in secondary evidence of its contents;^ — and his client's handwriting.' But in all cases of this sort, the privilege of secrecy is carefully extended to all the matters professionally disclosed, and which he would not have known but from his being consulted professionally by his client. § 246. Where an attorney is called upon whether by sub- poena duces tecum, or otherwise, to produce deeds or papers belonging to his client, who is not a party to the suit, the Court will inspect the documents, and pronounce upon their admissibility, according as their production may appear to 443. But if the question were about a ragure in a deed or will, he might be examined to the question, whether he had ever seen it in any other plight. Bull. N. P. 284. So, as to a confession of the rasure by his client, if it were confessed before his retainer. Cutts v. Pickering, 1 Ventr. 197. See also Baker v. Arnold, 1 Caines, 258, per Thompson and Livingston, Js. 1 lj)oe V. Andrews, Cowp. 845 ; Robson v. Eemp, 4 Esp. 235 ; 5 Esp. 53, S. C. ; Sanford v. Remington, 2 Ves. 189. 2 Ripon V. Davies, 2 Nev. & M. 210 ; Shore v. Bedford, 5 M. & Gr. 271 ; Griffith V. Davies, 5 B. & Ad. 502, overruling Gainsford v. Grammar, 2 Campb. 9, contra. 3 Cowp. 846; Beckwith v. Benner, 6 C. & P. 681 ; Hurd v. Moring, 1 C. & P. 3V2 ; Rex v. Watkinson, 2 Stra. 1122, and note. 4 Bull. N. P. 284 ; Cowp. 846. 5 DufBn V. Smith, Peake's Caa. 108. 6 Bevan v. Waters, 1 M. & M. 235; Eicke v. Nokes, Id., 303 ; Jackson v. McVey, 18 Johns. 330 ; Brandt v. Klein, 17 Johns. 335 ; Doe v. Ross, 7 M. 6 W. 102 ; Robson v. Kemp, 5 Esp. 53 ; Coates v. Birch, 2 Ad. & El. 252, N. S. ; Coveney v. Tannahill, 1 Hill, 33; Dwyer v., Collins, 16 Jur. 569 ; 7 Exch. 639. 7 Hurd V. Moring, 1 C. & P. 372 ; Johnson v. Daverne, 19 Johns. 134; 4 Hawk. P. C, B. 2,.ch. 46, § 89. CHAP. XIII.] EVIDENCE EXCLUDED FROM PUBLIC POLICY. 343 be prejudicial or not to the client ; in like manner, as -where a witness objects to the production of his own title-deeds.-' And the same discretion will be exercised by the Courts, where the documents called for are in the hands of solicitors for the assignees of bankrupts ; ^ though it was at one time thought that their production was a matter of public duty.^ So, if the documents called for are in the hands of the agent or steward of a third person, or even in the hands of the owner himself, their production will not be required where, in the judgment of the Court, it may injuriously affect his title.* This extension of the rule, which will be more fully 1 Copeland v. Watts, 1 Stark. R. 95 ; Amey u.Long, 9 East, 473 ; 1 Campb. 14 S. C. ; Phil. & Am. on Evi(i. 186 ; 1 Phil. Evid. 176 ; Reynolds v. Row- ley, 3 Rob. (Louis.) R. 201 ; Travis «. January, Id. 227. (In Volant v. Soyer et al. 16 Eng. Law & Eq. R. 426, the attorney (Michael) of one Hart, had been subpoenaed to produce a deed by which the defendants were alleged to have assigned certain property in trust to Hart. The deed had been pre- pared in the office of Michael, who was the attorney of Hart, and who held the deed in that character at the trial. Michael, on being asked to produce the deed, submitted that he held the deed as attorney of Hart, and was not bound to produce it. Counsel contended that Hart had no right to withhold the deed as against a cestui que trust, and asked the Court (Lord Chief Jus- tice Jervis) to look at the deed to see whether Michael Weis correct in saying that Hart had such an interest under the deed as entitled him to withhold it, and whether it could be considered a title-deed of Hart at all. The Court refused to examine the deed, and rejected it. After verdict upon a motion for a rule nisi, it was held, that where an attorney is subpoenaed to produce a document at a trial, he may in his discretion, refuse to produce it on the ground that it has been intrusted to him by his client ; that he is not bound to produce it, nor to answer a question as to its nature ; and that the Judge ought not to examine it, to see whether it is adooument which ought to be withheld.] 2 Bateson v. Hartsink, 4 Esp. 43 ; Cohen v. Templar, 2 Stark. R. 260 ; Laing V. Barclay, 3 Stark. R. 38 ; Hawkins v. Howard, Ry. & M. 64 ; Cor- sen V. Dubois, Holt's Cas. 239 ; Bull v. Loveland, 10 Pick. 9, 14 ; Volant v. Soyer, 22 Law J. C. P. 83 ; 16 Eng. Law & Eq. R. 426. 3 Pearson v. Fletcher, 5 Esp. 90, per Lord EUenborough. 4 Rex V. Hunter, 3 C. & P. 591 ; Pickering v. Noyes, 1 B. & C. 262; Roberts v. Simpson, 2 Stark. R. 203 ; Doe v. Thomas, 9 B. & C. 288 ; Bull V. Loveland, 10 Pick. 9, 14. And see Doe v. Langdon, 12 Ad. & El. 711, N. S. ; 13 Jur. 96 ; Doe v. Hertford, 13 Jur. 632. H. brought an action upon bonds against E., in which the opinion of eminent counsel had been 344 LAW OF EVIDENCE. [PAETII. treated hereafter, is founded on a consideration of the great inconvenience and mischief which may result to individuals from a compulsory disclosure and collateral discussion of their titles, in cases where, not being themselves parties, the whole merits cannot be tried. § 247. There is one other situation, in which the exclusion of evidence has been strongly contended for, on the ground of confidence and the general good, namely, that of a clergy- man ; and this chiefly, if not wholly, in reference to criminal conduct and proceedings ; that the guilty conscience may with safety disburden itself by penitential confessions, and by spiritual advice, instruction, and discipline, seek pardon and relief. The law of Papal Rome has adopted this prin- ciple in its fullest extent ; not only excepting Such confes- sions ftom the general rules of evidence, as we have already intimated,^ but punishing the priest who reveals them. It even has gone farther ; for Mascardus, after observing that, in general, persons coming to the knowledge of facts, under taken by the plaintiff, upon a case stated. Afterwards an action was brought by C. against E. upon other similar bonds, and the solicitor of H. lent to the solicitor of C. the case and opinion of counsel taken in the former suit, to aid him in the conduct of the latter. And upon a bill filed by E. against C, for the discovery and production of this document, it was held to be a priv- ileged communication. Enthoven v. Cobb, 16 Jur. 1152; 17 Jur. 81; 15 Eng. Law & Eq. R. 277, 295. 1 Supra, § 229, note. By the Capitularies of the French kings, and some other continental codes of the Middle Ages, the clergy ,were not only excused, btit in some cases were utterly prohibited from attending as witnesses in any cause. Clerici de judicii sui cognitione non cogantur in publicum dicere testimonium. Capit. Reg. Francorum, lib. 7, § 118, (A. D. 827.) Ut nulla ad testimonia dicendum, ecclesiastioi cujuslibet pulsetur persona. Id. § 91. See Leges Barbar. Antiq. Vol. 3, pp. 313, 316. Leges Langobardicse, in the same collection, Vol. 1, pp. 184, 209, 237. But from the constitutions of King Ethelred, which provide for the punishment of priests guilty of per- iury, — Si presbyter, alicubi inveniatur in falso testimonio, vel in perjurio," — it would seem that the English law of that day did not recognize any dis- tinction between them and the laity, in regard to the obligation to testify as witnesses. See Leges Barbaror. Antiq. Vol. 4, p. 294 ; Ancient Laws and Inst, of England, Vol. 1, p. 347, § 27. CHAP. XIII.] EVIDENCE EXCLUDED FROM PUBLIC POLICY. 345 an oath of secrecy, are compellable to disclose them as wit- nesses, proceeds to state the case of confessions to a priest as not within the operation of the rule, on the ground that the confession is made not so much to the priest, as to the Deity ; whom he represents ; and that therefore the priest, when appearing as a witness in his private character, may lawfully swear that he knows nothing of the subject. Hoc tamen restringe, non posse procedere in sacerdote producto in testem contra reum criminis, quando in confessione sacra- mentali fuit aliquid sibi dictum, quia potest dicere, se nihil scire ex eo ; quod illud, quod scit, scit ut Deus, et ut Deus non producitur in testem, sed ut homo, et tanquam homo ignorat illud super quo producitur} In Scotland, where a prisoner in custody and preparing for his trial, has confessed his crimes to a clergyman, in order to obtain spiritual advice and comfort, the clergyman is not required to give evidence of such confession. But even in criminal cases, this ex- ception is not carried so far as to include communications made confidentially to clergymen, in the ordinary course of their duty.^ Though the law of England encourages the penitent to confess his sins, " for the unburthening of his conscience, and to receive spiritual consolation and ease of mind," yet the minister to whom the confession is made is merely excused from presenting the offender to the civil magistracy, and enjoined not to reveal the matter confessed, " under pain of irregularity." ® In all other respects, he is left to the full operation of the rules of the Common Law, by which he is bound to testify in such cases, as any other person when duly summoned. In the Common Law of Evidence there is no distinction between clergymen and laymen ; but all confessions, and other matters, not confided to legal counsel, must be disclosed, when required for the purposes of justice. Neither penitential confessions, made 1 Mascard. De Probat. Vol. 1, Qnsest. v. n. 61 ; Id. Concl. 377. Vid. et P. Farinac. Opera, tit. 8, Qusst. 78, n. 73. 2 Tait on Evidence, pp. 386, 387 ; Alison's Practice, p. 586. 3 Const. & Canon, 1 Jac. 1, Can. cxiii. ; Gibson's Codex, p. 963. 346 LAW OP EVIDENCE. [pAET H. to the minister, or to members of the party's own church, nor secrets confided to a Roman Catholic priest in the course of confession, are regarded as privileged communications.^ § 248. Neither is this protection extended to medical per- sons^ in regard to information which they have acquired confidentially, by attending in their professional characters ; 1 Wilson V. Rastall, 4 T. R. 753 ; Butler v. Moore, McNally's Evid. 253- 255 ; Anon. 2 Skin. 404, per Holt, C. J. ; Du Barre v. Livette, Peake's Cas. 77; Commonwealth v. Drake, 15 Mass. 161. The contrary was held by De Witt Clinton, Mayor, in the Court of General Sessions in New York, June, " 1813, in The People v. Phillips, 1 Southwest. Law Journ. p. 90. By a sub- sequent statute of New York, (2 Rev. St. 406, § 72,) " No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to dis- close any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination." This is held to apply to those confessions only which are made to the minister or priest professionally, and in the course of discipline enjoined by the Church. The People v. Gates, 13 Wend. 311. A similar statute exists in Missouri, (Rev. Stat. 1845, ch. 186, § 19 ; and in Wisconsin, Rev. Stat. 1849, ch. 98, § 75 ; and in Michigan, Rev. Stat. 1846, ch. 102, § 85 ; and in Iowa, Code of 1851, art. 2393.) See also Broad v. Pitt, 3 C. & P. 518 ; in which case. Best, C. J., said, that he for one, would never compel a clergyman to dis- close communications made to him by a prisoner ; but that, if he chose to disclose them, he would receive them in evidence. Joy on Confessions, &c. p. 49-58; Best's Principles of Evidence, § 417-419. 2 Duchess of Kingston's case, 11 Hargr. St. Tr. 243 ; 20 Howell's St. Tr. 643 ; Rex v. Gibbons, 1 C. & P. 97 ; Broad v. Pitt, 3 C. & P. 518, per Best, C. J. By the Revised Statutes o? New York, (Yol. 2, p. 406, § 73,) " No person, duly authorized to practice physic or surgery, shall be allowed to disclose any information which he may have acquired in attending any patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon." But though the statute is thus express, yet it seems the party himself may waive the privilege; in which case the facts may be disclosed. Johnson v. Johnson, 14 Wend. 637. A consultation, as to the means of procuring abortion in another, is not privileged by this statute. Hewett V. Prime, 21 Wend. 79. Statutes to the same effect have been enacted in Missouri, (Rev. Stat. 1845, ch. 186, § 20) ; and in Wisconsin, (Rev. Stat. 1849, ch. 98, § 75) ; and in Michigan, (Rev. Stat. 1846, ch. 102, § 86.) So, in Iowa ; in which State the privilege extends to public officers, in cases where the public interest would suffer by the disclosure. Code of 1851, arts. 2393, 2395. CHAP. XIII.] EVIDENCE EXCLUDED FROM PUBLIC POLICT. 347 nor to confidential friends^ clerks? bankers? or stewa/rds,^ except as to matters which the employer himself would not be obliged to disclose, such as his title-deeds and private papers, in a case in which he is not a party. § 249. The case of Judges and arbitrators may be men- tioned, as the second class of privileged communications. In regard to Judges of Courts of record, it is considered danger- , ous to allow them to be called upon to state what occurred before them in Court ; and on this ground, the Grand Jury were advised not to examine the chairman of the Quarter Sessions, as to what a person testified in a trial in that Court.^ The case of arbitrators is governed by the same general policy ; and neither the Courts of Law nor of Equity will disturb decisions deliberately made by arbitrators, by requiring them to disclose the grounds of their award, unless under very cogent circumstances, such as upon an allegation of fraud ; for. Interest Reipublicce ut sit finis litium.^ § 250. We now proceed to the third class of cases, in which evidence is excluded from motives of public policy, namely, secrets _ of State, or things, the disclosure of which would be prejudicial to the public interest. These matters are either those which concern the administration of penal justice, or those which concern the administration of govern- ment ; but the principle of public safety is in both cases the same, and the rule of exclusion is applied no further than the attainment of that object requires. Thus, in criminal trials, the names of persons employed in the discovery of the 1 4 T. K. 758, per Ld. Kenyon ; Hoffman v. Smith, 1 Caines, 157, 159. 2 Lee V. Birrell, 3 Campb. 337 ; Webb v. Smith, 1 C. & P. 337. 3 Loyd V. Freshfield, 2 C. & P. 325. 4 Vaillant v. Dodemead, 2 Atk. 524 ; 4 T. R. 756, per BuUer, J. ; B. of Falmouth v. Moss, 11 Price, 455. 5 Eegina v. Gazard, 8 C. & P. 595, per Patteson, J. ; [People v. Miller, 2 Parker, C. E. 197.] 6 Story, Eq. PI. 458, note (1); Anon. 3 Atk. 644; 2 Story, Eq. Jurisp. 680 ; Johnson v. Durant, 4 C. & P. 327 ; Ellis t>. Saltan, lb. n. (a) ; Haber- shon V. Troby, 3 Esp. 38. [See 2 Greenl. Evid. (7th ed.) § 78, and notes.] 348 LAW OP EVIDENCE. [PAKT 11. crime are not permitted to be disclosed, any farther than is essential to a fair trial of the question of the prisoner's inno- cence or guilt.^ ' " It is perfectly right," said Lord Chief Jus- tice Eyre,2 " 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 detection of crimes, that those persons who are the channel by means of which that detection is made should not be unnecessarily disclosed." Accordingly, where a witness, possessed of such knowledge, testified that he related it to a ftiend, not in office, who advised him to communicate it to another quarter ; a major- ity of the learned Judges held that the witness was not to be asked the name of that friend ; and they all were of opin- ion that all those questions which tend to the discovery of the channels by which the disclosure was made to the officers of justice, were, upon the general principle of the conven- ience of public justice, to be suppressed ; that all persons in that situation were protected from the discovery ; and that, if it was objected to, it was no more competent for the defendant to ask the witness, who the person was that ad- vised him to make a disclosure, than to ask who the person was to whom he made the disclosure in consequence of that advice, or to ask any other question respecting the channel of communication, or all that was done under it.^ 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 them, or 1 Kex V. Hardy, 24 Howell's St. Tr. 753. The rule has been recently- settled, that, in a public prosecution, no question can be put which tends to reveal who was the secret informer of the government ; even though the question be addressed to a witness in order to ascertain whether he was not himself the informer. Att.-Gen. v. Briant, 15 Law Journ. N. S. Exch. 265 ; 5 Law Mag. 333, N. S. 2 In Rex V. Hardy, 24 Howell's St. Tr. 808. 3 Eex V. Hardy, 24 Howell's St. Tr. 808-815, per Ld. C. J. Eyre; Id. 815-820. CHAP. Xni.] EVIDENCE EXCLUDED FROM PUBLIC POLICY. 349 the name of any person who was the channel of communi- cation with the government or its officers, nor whether the information has actually reached the government. But he may be asked whether the person to whom the information was communicated was a magistrate or not.-" § 251. On a like principle of public policy, the official transactions between the heads of the departments of State and their subordinate officers are in general treated as privi-, leged communications. Thus, communications between a provincial governor and his attorney-general, 'on the state of the colony, or the conduct of its officers ; ^ or between such governor and a military officer under his authority;^ the report of a military commission of inquiry, made to the commander-in-chief;* and the correspondence between an agent of the government and a Secretary of State,^ are con- fidential and privileged matters, which the interests of the State will not permit to be disclosed. The President of the United States, and the Governors of the several States, are not bound to produce papers or disclose information commu- nicated to them, when, in their own judgment the disclo- sure would, on public considerations, be inexpedient.^ And where the law is restrained by public policy from enforcing the production of papers, the like necessity restrains it from doing what would be the same thing in effect, namely, receiv- ing secondary evidence of their contents.^ But communica- 1 1 Phil. Evid. 180, 181 ; Rex v. Watson, 2 Stark. R. 136 ; 32 Howell's St. Tr. 101; United States v. Moses, 4 Wash. 726; Hpme v. Ld. F. C. Bentinck, 2 B. & B. 130, 162, per Dallas, C. J. 3 Wyatt V. Gore, Holt's N. P. Cas. 299. 3 Cooke V. Maxwell, 2 Stark. R. 183. 4 Home V. Ld. F. C. Bentinck, 2 B. & B. 130. 5 Anderson v. Hamilton, 2 B. & B. 156, note; 2 Stark. R. 185, per Lord EUenborough, cited by the Attorney-General ; Marbury v. Madison, 1 Cranch, 144. 6 1 Burr's Trial, pp. 186, 187, per Marshall, C. J.; Gray v. Pentland, 2 S. & R. 23. 7 Gray v. Pentland, 2 Serg. & R. 23, 31, 32, per Tilghman, C. J., cited and approved in Yoter v. Sanno, 6 Watts, 156, per Gibson, C. J. In Law VOL. r. 30 350 LAW OP EVIDENCE. [PAKT II. tions, though made to official persons, are not privileged where they are not made in the discharge of any public duty ; such, for example, as a letter by a private individual to the chief secretary of the postmaster-general, complain- ing of the conduct of the guard of the mail towards a pas- senger.^ § 252. For the same reason of public policy, in the further- ance of justice, the proceedings of grand-jurors are regarded as privileged communications. It is the policy of. the law, that the preliminary inquiry, as to the guilt or innocence of a party accused, should be secretly conducted ; and in fur- therance of this object every grand-juror is sworn to secrecy.^ One reason may be, to prevent the escape of the party, should he know that proceedings were in train against him ; another may be, to secure freedom of deliberation aryi opin- ion among the grand-jurors, which would be impaired if the part taken by each might be made known to the accused. A third reason may be, to prevent the testimony produced before them from being contradicted at the trial of the indictment, by subornation of perjury on the part of the accused. The rule includes not only the grand-jurors them- V. Scott, 5 Har. & J. 438, it seems to have been held, that a senator of the United States may be examined, as to what transpired in a secret executive session, if the Senate has refused, on the party's application, to remove the injunction of secrecy. Sed qucere, for if so, the object of the rule, in the 'preservation of State secrets, may generally be defeated. And see Plunkett V. Cobbett, 29 Howell's St. Tr. 71, 72; 5 Esp.iSG, S. C, where Lord Ellen- borough held, that though (jpe member of parliament may be asked as to the fact that another member took part in a debate, yet he was not bound to relate anything which had been delivered by such a speaker as a member of parliament. But it is to be observed, that this was placed by Lord Ellen- borough on the ground of personal privilege in the member ; whereas the transactions of a session, after strangers are excluded, are placed under an injunction of secrecy, for reasons of State. 1 Blake v. Pilford, 1 M. & Rob. 198. 2 [" The extent of the limitation upon the testimony of grand-jurors, is best defined by the terms of their oath of office, by which ' the common- wealth's counsel, their fellows' and their own, they are to keep secret.'" By Bigelow, J. Commonwealth v. Hill, 11 Gush. 137, 140.] CHAP. XHr.] EVIDENCE EXCLUDED FROM PUBLIC POLICY. 36 1 selves, but their clerk,^ if they have one, and the prosecuting officer, if he is present at their deliberations ; ^ all these being equally concerned in the administration of the same portion of penal law. They are not permitted to disclose who agreed to find the bill of indictment, or who did not agree ; nor to detail the evidence on which the accusation was founded.^ But they may be compelled to state whether a particular person testified as a witness before the Grand- Jury;* though it seems they cannot be asked, if his testi- mony there agreed with what he testified upon the trial of the indictment.^ Grand-jurors may also be asked, whether twelve of their number actually concurred in the finding of a 112 Vin. Abr. 38, tit. Evid. B. a, pi. 5 ; Trials per Pais, 315. 2 Commonwealth v. Tilden, cited in 2 Stark. Evid. 232, note (1), by Met- calf ; McLellan v. Richardson, 1 Shepl. 82. But on the trial of an indict- ment for perjury, committed in giving evidence before the Grand-Jury, it has been held, that another person, who was present as a witness in tlie same matter, at the same time, is competent to testify to what the prisoner said before the Grand-Jury ; and that a police-officer in waiting was competent for the same purpose ; neither of these being sworn to secrecy. Regina v. Hughes, 1 Car. & Kir. 519. 3 Sykes v. Dunbar, 2 Selw. N. P. 815, [1059] ; Huidekoper v. Cotton, 3 Watts, 56 ; McLellan v. Richardson, 1 Shepl. 82 ; Low's case, 4 Greenl. 439, 446, 453 ; Burr's Trial, [^non.] Evidence for Deft. p. 2. * Sykes v. Dunbar, 2 Selw. N. P. 816, [1059]; Huidekoper v. Cotton, 3 Watts, 56 ; Freeman v. Arkell, 1 C. & P. 135, 137, n. (c.) ; [Common- wealth V. Hill, 11 Cush. 137, 140.] 5 12 Vin. Abr. 20, tit. Evidence, H. ; Imlay v. Rogers, 2 Halst. 347. The rule in the text is applicable only to civil actions. In the case last cited, which was trespass, the question arose on a motion for a new trial, for the rejection of the grand-juror, who was offered in order to discredit a witness ; and the Court being equally divided, the motion did not prevail. Probably such also was the nature of the case in Cla}t. 84, pi. 140, cited by Viner. But where a witness before the Grand-Jury has committed perjury in his testimony, either before them or at the trial, the reasons mentioned in the text for excluding the testimony of grand-jurors, do, not prevent them from being called as witnesses after the first indictment has been tried, in order to establish the guilt of the perjured party. See 4 Bl. Comm. 126, n. 5, by Christian ; ,1 Chitty's Crim. Law, p. [317] ; Sir J. Fen wick's case, 13 How- ell's St. Tr. 610, 611 ; 5 St. Tr. 72 ; Wharton's Am. Crim. Law, p. 130. By the Revised Statutes oi New York, Vol. 2, p. 724, § 31, the question may be asked, even in civil cases. 352 LAW OF EVIDENCE. [PART II. bill, the certificate of the foreman not being conclusive evi- dence of that fact.-' § 252 a. On similar grounds of public policy, and for the protection of parties against fraud, the law excludes the tes- timony of traverse jurors, when offered to prove misbehavior in the Jury in regard to the verdict. Formerly, indeed, the affidavits of jurors have been admitted, in support of motions to set aside verdicts by reason of misconduct ; but that prac- tice was broken in upon by Lord Mansfield, and the settled course now is to reject them, because of the mischiefs which may result if the verdict is thus placed in the power of a single juryman.^ § 253. There is a fourth species of evidence which is excluded, namely, that which is indecent, or offensive to public morals, or injurious to the feelings or interests of third persons, the parties themselves having no interest in the matter, except what they have impertinently and voluntarily created. The mere indecency of disclosures does not, in general, suffice to exclude them, where the evidence is neces- sary for the purposes of civil or criminal justice ; as, in an indictment for a rape ; or in a question upon the sex of one, claiming an estate entailed, as heir male or female ; or upon the legitimacy of one claiming as lawful heir; or in an action by the husband for criminal conversation with the wife. In these and similar cases the evidence is necessary, either for the proof and punishment of crime, or for the vin- dication of rights existing before, or independent of, the fact sought to be disclosed. But where the parties have volun- tarily and impertinently interested themselves in a question, 1 4 Hawk. P. C, B. 2, ch. 25, § 15 ; McLellan v. Richardson, 1 Shepl. 82 ; Low's case, 4 Greenl. 439 ; Commonwealth v. Smith, 9 Mass. 107. 2 Vaise v. Delaval, 1 T. R. 11 ; Jackson v. Williamson, 2 T. R. 281 ; Owen V. Warburton, 1 New R. 326 ; Little v. Larrabee, 2 Greenl. 37, 41, note, where the cases are collected. The State m. Freeman, 5 Conn. 348 ; Meade v. Smith, 16 Conn. 34&; Straker v. Graham, 4 M. & W. 721"; [Bos- ton, &c. R. R. Corp. V. Dana, 1 Gray, 83, 105 ; Folsom v. Manchester, 11 Cush. 334, 337.] CHAP. XIII.] BVIDBNOB EXCLUDED FROM PUBLIC POLICY. 353 tending to violate the peace of society, by exhibiting , an innocent third person to the world in a ridiculous or con- temptible light, or to disturb his own peace and comfort, or to offend public decency by the disclosures which its de- cision may require, the evidence will not be received. Of this sort are wagers or contracts respecting the sex of a third person,^ or upon the question whether an unmarried woman has had a child.^ In this place may also be mentioned the declarations of the husband or wife, that they have had no connection, though living together, and that therefore the offspring is spurious ; which on the same general ground of decency, morality, and policy, are uniformly excluded.^ § 254. Communications between husband and wife belong also to the class of privileged communications, and are there- fore protected, independently of the ground of interest and identity, which precludes the parties from testifying for or against each other. The happiness of the married state re- quires that there should be the most unlimited confidence between husband and wife; and this confidence the law secures, by providing that it shall be kept forever inviolable ; that nothing shall be extracted from the bosom of the wife, which was confided there by the husband. Therefore, after the parties are separated, whether it be by divorce or by the death of the husband, the wife is still precluded from disclos- ing any conversations with him ; though she may be admit- ted to testify to facts which came to her knowledge by means equally accessible to any person not standing in that 1 Da Costa v. Joues, Cowp. 729. 2 Ditchburn v. Goldsmith, 4 Campb. 152. If the subject of the action is frivolous, or the question impertinent, and this is apparent on the record, the Court will not proceed at all in the trial. Brown u. Leeson, 2 H. Bl. 43 ; Henkin v. Gerss, 2 Campb. 408. 3 Goodright v. Moss, Cowp. 594, said, per Lord Mansfield, to have been solemnly decided at the Delegates. Cope v. Cope, 1 M. & Rob. 269, per Alderson, J.; Kex v. Book, 1 Wils. 340; Kex v. Luffe, 8 East, 193, 202, 203; Rex v. Kea, 11 East, 132; Commonwealth v. Shepherd, 6 Binn. 283. ■ 30* 354 LAW OF EVIDENCE. [PART II. relation.^ Their general incompetency to testify for or against each other will be considered hereafter, in its more appropriate place. § 254 a. It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The Court will not take notice how they were ob- tained, whether lawfully or unlawfully, nor will it form an issue, to determine that question.^ i Monroe v. Twistleton, Peake's Evid. App. Ixxxii. as explained by Lord EUenborough in Aveson v. Lord Kiunaird, 6 East, 192, 193 ; Doker v. Has- ler, Ry. & M. 198 ; Stein u. Bowman, 13 Peters, E. 209, 223 ; Coffin u. Jones, 13 Pick. 441, 445 ; Edgell v. Bennett, 7 Verm. E. 536 ; Williams v. Bald- win, Id. 503, 506, per Eoyce, J. In Beveridge v. Minter, 1 C. & P. 364, where the widow was permitted by Abbott, C. J., to testify to certain admis- sions of her deceased husband, relative to the money in question, this poipt was not considered, the objection being placed wholly on the ground of her interest in the estate. See also 2 Kent, Comm. 180 ; 2 Stark. Evid. 399 ; Robbins v. King, 2 Leigh's E. 142, 144. See further, infra, § 333-345 ; [Smith «. Potter, 1 Williams, 304 ; Goltra v. Wolcott, 14 111. 89 ; Stein v. Weidman, 20 Mis. 17. In an action on the case brought by a husband for criminal conversation with his wife, the latter, after a divorce from the bonds of matrimony obtained subsequent to the time of the alleged criminal inter- course, is a competent witness for the plaintiff to prove the charge in the declaration. Dickerman v. Graves, 6 Cush. 308 ; Ratcliff v. Wales, 1 Hill, 68.] 3 Commonwealth v. Dana, 2 Met. 329, 337; Leggett v. ToUervey, 14 East, 302 ; Jordan v. Lewis, Id. 306, note. CHAP. SIV. NUMBER OF WITNESSES. 355 CHAPTEE XIV. OP THE NUMBER OF WITNESSES, AND THE NATURE AND QUANTITY OF PROOF REQUIRED IN PARTICULAR CASES. § 255. Under this head it is not proposed to go into an extended consideration of the Statutes of Treason, or of Frauds, but only to mention briefly some instances in which those statutes, and some other rules of law, have regulated particular cases, taking them out of the operation of the general principles, by which they would otherwise be gov- erned. Thus, in regard to treasons though by the Common Law the crime was sufiiciently proved by one credible wit- nesSji yet, considering the great weight of the oath or duty of allegiance, against the probability of the fact of treason,^ it has been deemed expedient to provide,^ that no person 1 Foster's Disc. p. 233; Woodbeuk v. Keller, 6 Cowen, 120; McNally's Evid. 31. 2 This is conceived to be the true foundation on which the rule has, in modern times, been enacted. The manner of its first introduction into the statutes, was thus stated by the Lord Chancellor, in Lord Stafford's case, T. Kaym. 408. " Upon this occasion, my Lord Chancellor, in the Lords House was pleased to communicate a notion concerning the reason of two witnesses in treason, which he said was not very familiar, he believed ; and it was this : anciently all or most of the Judges were churchmen and eccle- siastical persons, and by the canon law now, and then, in use all over the Christian world, none can be condemned of heresy but by two lawful and credible witnesses ; and bare words may make a heretic, but not a traitor, and anciently heresy was treason ; and from thence the parliament thought fit to appoint that two witnesses ought to be for proof of high treason." 3 This was done by Stat. 7 W. 3, c. 3, § 2. Two witnesses were required by the earlier statutes of 1 Ed. 6, c. 12, and 5 & 6 Ed. 6, c. 11 ; in the con- struction of which statutes, the rule afterwards declared in Stat. 7 W. 3, was adopted. See Kex v. Ld. Stafford, T. Ray. 407. The Constitution of the United States provides that — " No person shall be convicted of treason 356 LAW OF EVIDENCE. [PAET II. shall be indicted or convicted of high treason, but upon the oaths and testimony of two witnesses to the same overt act, or to separate overt acts of the same treason, unless upon his voluntary confession in open Court. We have already seen . that a voluntary confession out of Court, if proved by two witnesses is sufficient to warrant a conviction ; and that in England the crime is well proved if there be one witness to one overt act, and another witness to another overt act, of the same species of treason.'^ It is also settled that when the prisoner's confession is oiFered, as corroborative of the testimony of such witnesses, it is admissible, though it be proved by only one witness ; the law not having excluded confessions, proved in that manner, from the consideration of the Jury, but only provided that they alone shall not be ■sufficient to convict the prisoner.^ And as to all matters merely collateral, and not conducing to the proof of the overt acts, it may be safely laid down as a general rule, that what- ever was evidence at Common Law, is still good evidence under the express constitutional and statutory provision above mentioned.^ § 256. It may be proper in this place to observe, that in treason, the rule is that no evidence can be given of any overt act, which is not expressly laid in the indictment. But the meaning of the rule is, not that the whole detail of facts unless on the testimony of two witnesses to the same overt act, or on con- fession in open Court." Art. 3, § 3. LL. U. S. Vol. 2, ch. 36, § 1. This provision has been adopted, in terms, in many of the State Constitutions. But as in many other States there is no express law requiring that the testi- mony of both witnesses should be to ike same overt act, the rule stated in the text is conceived to be that which would govern in trials for treason against those States ; though in trials in the other States, and for treason against the United States, the constitutional provision would confine the evidence to the same overt act. 1 Supra, % 235, n.; Lord Stafford's case, 7 Howell's St. Tr. 1527 ; Fos- ter's Disc. 237; 1 Burr's Trial, 196. 2 Willis's case, 15 Howell's St. Tr. 623, 624, 625 ; Grossfield's case, 26 Howell's St. Tr. 55, 56, 57. Foster's Disc. 241. 3 Supra, § 235 ; Foster's Disc. 240, 242 ; 1 East, P. C. 130. , CHAP. XIV.] NUMBER OF WITNESSES. 357 should be set forth, but that no overt act, amounting to a distinct independent charge, though falling under the same head of treason, shall be given in evidence, unless it be ex- pressly laid in the indictment. If, however, it will conduce to the proof of any of the overt acts which are laid, it may be admitted as evidence of such overt acts.^ This rule is not peculiar to prosecutions for treason ; though, in consequence of the oppressive character of some former State prosecutions for that crime, it has been deemed expedient expressly to enact it in the later statutes of treason. It is nothing more than a particular application of a fundamental doctrine of the law of remedy and of evidence, namely, that the proof must correspond with the allegations, and be confined to the point in issue.^ This issue, in treason, is, whether the pris- oner committed that crime, by doing the treasonable act stated in the indictment ; as, in slander, the question is, whether the defendant injured the plaintiff by maliciously uttering the falsehoods laid in the declaration ; and evidence of collateral facts is admitted or rejected on the like princi- ple in either case, accordingly as it does or does not tend to \ establish the specific charge. Therefore the declarations of ' the prisoner, and seditious language used by him, are admis- sible in evidence as explanatory of his conduct, and of the nature and object of the conspiracy in which he was en- gaged.^ And after proof of the overt act of treason, in the county mentioned in the indictment, other acts of treason tending to prove the overt acts laid, though done in a for- eign country, may be given in evidence.* § 257. In proof of the crime of perjury, also, it was for- 1 Foster's Disc. p. 245 ; 1 Phil. Evid. 471; Deacon's case, 18 Howell's St. Tr. 366 ; Foster, R. 9, S. C. ; Regicide's case, J. Kely. 8, 9 ; 1 East, P. C. 121, 122, 123 ; 2 Stark. Evid. 800, 801. 2 Supra, §§ 51, 52, 53. 3 Rex V. Watson, 2 Stark. R. 116, 134; [United States v. Hanway, 2 Wallace, Jr. lS9.] 4 Deacon's case, 16 Howell's St. Tr. 367 ; Foster, R. 9, S. C. ; Sir Hepry Vane's case, 4th res., 6 Howell's St. Tr. 123, 129, n.; 1 East, P. C. 125, 126. [See post, Vol. 3, (4th edit.) 246-248.] 358 LAW OF EVIDENCE. [PART II. merly held that two witnesses were necessary, because other- wise there would be nothing more than the oath of one man against another, upon which the Jury could not safely con- vict.^ But this strictness has long since been relaxed ; the true principle of the rule being merely this, that the evidence must be something more than sufficient to counterbalance the oath of the prisoner, and the legal presumption of his innocence.^ The oath_ of the opposing witness, therefore, will not avail, unless it be corroborated by other independent circumstances. But it is not precisely accurate to say, that these additional circumstances must be tantamount to an- other witness. The same effect being given to the oath of ' 1 Stark. Evid. 443 ; 4 Hawk. P. C, B. 2, c. 46, § 10 ; 4 Bl. Comm. 358 ; 2 Kuss. on Crimes, 1791. 2 The history of this relaxation of the sternness of the old rule is thus jstated by Mr. Justice Wayne; in delivering the opinion of the Court in The /United States v. Wood, 14 Peters, 440, 441. "At first, 'two witnesses were [required to convict in a case of perjury; both swearing directly adversely jfrom the defendant's oath. Contemporaneously with this requisition, the larger I number of witnesses on one side or the other prevailed. Then a single wit- ness, corroborated by other witnesses, swearing to circumstances bearing directly upon the imputed corpus delicti of a defendant, was deemed suffi- cient. Next, as in the case of Rex v. Knill, 5 B. & A. 929, n., with a long interval between it and the preceding, a witness, who gave proof only of the contradictory oaths of the defendant on two occasions, one being an examin- ation before the House of Lords, and the other an examination before the House of Commons, was held to be sufficient ; though this principle had been acted on as early as 1764, by .Justice Yates, as may be seen in the note to the case of The King v. Harris, 5 B. & A. 937, and was acquiesced in by Lord Mansfield, and Justices Wilmot and Aston. We are aware that, in a note to Eex v. Mayhew, 6 C. & P. 315, a doubt is implied concerning the case decided by Justice Yates ; but it has the stamp of authenticity, from its having been referred to in a case happening ten years afterwards before Jus- tice Chambre, as will appear by the note in 6 B. & A. 937. Afterwards, a single witness, with the defendant's bill of costs (not sworn to) in lieu of a second witness, delivered by the defendant to the prosecutor, was held suffi- cient to contradict his oath ; and in that case Lord Denman says, ' A letter written by the defendant, contradicting his statement on oath, would be suffi- cient to make it unnecessary to have a second witness.' 6 C. & P. 315. We thus see that this rule, in its proper application, has been expanded beyond its literal terms, as cases have occurred in which proofs have been offered equivalent to the end intended to be accomplished by the rule." CHAP. XIV.]. NUMBER OF WITNESSES. 359 the prisoner, as though it were the oath of a credible witness, the scale of evidence is exactly balanced, and the equilibrium must be destroyed, by material and independent circum- stances, before the party can be convicted. The additional evidence needs not be such as, standing by itself, would justify a conviction in a case where the testimony of a single witness would suffice for that purpose. But it must be at least strongly corroborative of the testimony of the accusing witness ; ^ or, in the quaint but energetic language of Parker, C. J., " a strong and clear evidence, and more numerous than the evidence given for the defendant." ^ § 257 a. When there are several assignments of perjury in the same indictment, it does not seem to be clearly settled, whether, in addition to the testimony of a single witness, there must be corroborative proof with respect to each ; but, the better opinion is, that such proof is necessary ; and that too, although all the perjuries assigned were committed at one time and place.^ For instance, if a person, on putting in his schedule in the insolvent debtor's court, or on other the like occasion, has sworn that he has paid certain credi- tors, and is then indicted for perjury on several assignments, each specifying a particular creditor who has not been paid. 1 Woodbeck u. Keller, 6 Cowen, 118,121, per Sutherland, J. ; Champ- ney's case, 1 Lew. Cr. Cas. 258. And see infra, § 381. 2 The Queen v. Muscot, 10 Mod. 194. See also The State v. Holier, 1 Dev. 263, 265; The State v. Hayward, 1 Nott. & McCord, 547; Rex v. May hew, 6 C. & P. 315 ; Reg. v. Boulter, 16 Jur. 135 ; Roscoe on Grim. Evid. 686, 687; Clark's Executors v. Van Reimsdyk, 9 Cranch, 160. It must corroborate him in something more than some alight particulars. Reg. a. Yates, 1 Car. & Marsh. 139. More recently, corroboratiye evidence, in cases where more than one witness is required by law, has been defined by Dr. Lushington, to be not merely evidence showing that the account is prob- able, but evidence, proving facts ejusdem generis, and tending to produce the same results. Simmons v. Simmons, 11 Jur. 830. See further to this point, Reg. v. Parker, C. & Marsh. 646 ; Reg. v. Champney, 2 Lewin, 258; Reg. v. Gardiner, 8 C. & P. 737; Reg. v. Roberts, 2 Car. & Kir. 614. [See Post, Vol. 3, (4th ed.) § 198.] 3 R. V. Virrier, 12 A. & E. 317, 324, per Ld. Denman. 360 LAW OP EVIDENCE. • [PART II. a single witness with respect to each debt will not, it seems, suffice, though it may be very difficult to obtain any fuller evidence.^ § 258. The principle that one witness with corroborating circumstances is sufficient to, establish the charge of perjury, leads to the conclusion that circumstances, without any wit- ness, when they exist in documentary or written testimony, may combine to the same effect; as they may combine, alto- gether unaided by oral proof, except the evidence of their authenticity, to prove any other fact, connected with the declarations of persons or the business of human life. The principle is, that circumstances necessarily make a part of the proofs of human transactions ; that such as have been reduced to writing, in unequivocal terms, when the writing has been proved to be authentic, cannot be made more cer- tain by evidence aliunde; and that such as have not been reduced to writing, whether they relate to the declarations or conduct of men, can only be proved by oral testimony. Accordingly, it is now held that a living witness of the corpus delicti may be dispensed with, and documentary or written evidence be relied upon to convict of perjury, — first, where the falsehood of the matter sworn by the prisoner is directly proved by documentary or written evidence springing from himself, with circumstances showing the corrupt intent; secondly, in cases where the matter so sworn is contradicted by a public record, proved to have been well known by the prisoner when he took the oath, the oath only being proved to have been taken ; and thirdly, in cases where the party is charged with taking an oath, contrary to . what he must necessarily have known to be true ; the falsehood being shown by his own letters relating to the fact sworn to, or by any other written testimony, existing and being found in his 1 K. V. Parker, C. & Marsh. 639, 645-647, per Tindal, C. J. In K. v. Mudie, 1 M. & Rob. 128, 129, Lord Tenterden, under similar circumstances, refused to stop the case, saying that, if the defendant was convicted, he might move for a new trial. He was, however, acquitted. See the (London) Law Review, &c. May, 1846, p. 128. CHAP. XIV.] NUMBER OF WITNESSES. 361 possession, and which has been treated by him as containing the evidence of the fact recited in it.^ § 259. If the evidence adduced in proof of the crime of perjury consists of two opposing statements of the prisoner, and nothing more, he cannot be convicted. For^if one only was delivered under oath, it must be presumed, from the solemnity of the sanction, that that declaration was the truth, and the other an error or a falsehood ; though the latter, being inconsistent with what he has sworn, may form important evidence, with other circumstances, against him. And if both the contradictory statements were delivered under oath, there is still nothing to show which of them is false, where no other evidence of the falsity is given.^ If, indeed, it can be shown that, before giving the testimony on which peijury is assigned, the accused had been tampered with ; ^ or, if there be other circumstances in the case, tending to prove that the statement offered in evidence against the accused was in fact true, a legal conviction may be obtained.* And " although the Jury may believe that on the one or the other occasion the prisoner swore to what was not true, yet it is not a necessary consequence that he committed peijury. For there are cases in which a person might very honestly and conscientiously swear to a particular fact, from the best of his recollection and belief, and from other circumstances sub- 1 The United States v. Wood, 14 Peters, 440, 441. In this case, under the latter head of the rule here stated, it was held, that, if the Jury were satisfied of the corrupt intent, the prisoner might well be convicted of per- jury, in taking, at the custom-house in New York, the " owner's oath in cases where goods, ware^, or merchandise have been actually purchased," upon the evidence of the invoice-book of his father, John Wood, of. Saddle- worth, England, and of thirty-five letters from the prisoner to his father, disclosing a combination between them to defraud the United States, by in- voicing and entering the goods shipped at less than their actual cost. 2 See Alison's Principles of the Criminal Law of Scotland, p. 481. Ee- gina V. Hughes, 1 C. & K. 519 ; Kegina v. Wheatland, 8 C. & P. 238 ; Begina v. Champney, 2 Lew. 258. 3 Anon. 5 B. & A. 939, 940, note. And see 2 Kuss. Cr. & M. 653, note. 4 Kex V. Knill, 5 B. & A. 929, 930, note. VOL. I. 31 362 LAW OF EVIDENCE. [PART 11. sequently be convinced that he was wrong, and swear to the reverse, without meaning to swear falsely either time.^ § 260. The principles above stated, in regard to the proof of perjury, apply with equal force to the case of an answer in Chancery. Formerly, when a material fact was directly put in issue by the answer, the Courts of Equity followed the m.axim of the Roman Law, Responsio unius non omnino audiatwr, and required the evidence of two witnesses, as the foundation of a decree. But of late years the rule has been referred more strictly to the equitable principle on which it is founded, namely, the right to credit which the defendant may claim, equal to that of any other witness in all cases where his answer is "positively, clearly, and precisely" responsive to any matter stated in the bill. For the plaintiff, by calling on the defendant to answer an allegation which he makes, thereby admits the answer to be evidence.^ In such case, if the defendant in express terms negatives the allegations in 1 Per Holroyd, J., in Jackson's case, 1 Lewin's Cr. Cas. 270. This very reasonable doctrine is in perfect accordance with the rule of the Criminal Law of Scotland, as laid down by Mr. Alison, in his lucid and elegant treatise on that subject, in the following terms : " When contradictory and inconsistent oaths have been emitted, the mere contradiction is not deci- sive evidence of the existence of perjury in one or other of them ; but the prosecutor must establish which was the true one, and libel on the other as containing the falsehood. Where depositions contradictory to each other have been emitted by the same person on the same matter, it may with cer- tainty be concluded that one or other of them is false. But it is not relevant to infer perjury in so loose a manner ; but the prosecutor must go a step farther, and specify distinctly which of the two contains the falsehood, and peril his case upon the means he possesses of proving perjury in that depo- sition. To admit the opposite course, and allow the prosecutor to libel on both depositions, and make out his charge by comparing them together, without distinguishing which contains the truth and which the falsehood, would be directly contrary to the precision justly required in criminal pro- ceedings. In the older practice this distinction does not seem to have been distinctly recognized ; but it is now justly considered indispensable, that the perjury should be specified existing in one, and the other deposition referred to in modum probationis, to make out, along with other circumstances, where the truth really lay.'' See Alison's Crim. Law of Scotland, p. 476. 2 Gresley on Evid. p. 4. CHAP. XIV.] NUMBER OF WITNESSES. 363 the bill, and the bill is supported by the evidence of only a single witness, affirming what has been so denied, the Court will neither make a decree, nor send the case to be tried at law ; but will simply dismiss the bill.^ But the corroborating testimony of an additional witness, or of circumstances, may give a turn either way to the balance. And even the evi- dence arising from circumstances alone may be stronger than the testimony of any single witness.^ § 260 a. It has also been held, that the testimony of one witness alone is not sufficient to establish any usage of trade, of which all dealers in that particular line are bound to take notice, and are presumed to be informed.^ 1 Cooth V. Jackson, 6 Ves. 40, per Ld. Eldon. 2 Pember v. Mathers, 1 Bro. Ch. R. 52 ; 2 Story on Eq. Jur. § 1528 ; Gresley on Evid. p. 4 ; Clark v. Van Eeimsdyk, 9 Cranch, 160 ; Keys v. Williams, 3 Y. & C. 55 ; Dawson v. Massey, 1 Ball & Beat. 234 ; Maddox V. Sullivan, 2 Rieli. Eq. R. 4. Two witnesses are required, in Missouri, to prove the handwriting of a deceased subscribing witness to a deed ; when all the subscribing witnesses are dead, or cannot be had, and the deed is offered to a Court or magistrate for probate, preparatory to its registration. Rev. Stat. 1835, p. 121 ; Id. 1845, ch. 32, §'22 ; Infra, § 569, note. Two wit- nesses are also required to a deed of conveyance of real estate, by the stat- utes of New Hampshire, Vermont, Connecticut, Georgia, Florida, Ohio, Michigan^ and Arkansas. See 4 Cruise's Digest, tit. 32, ch. 2, § 77, note, (Greenleaf's.ed.) [2d ed. (1856), Vol. 2, p. 341.] And in Connecticut, it is enacted, that no person shall be convicted of a capital crime, without the testimony of two witnesses, or what is equivalent thereto. Rev. Stat. 1849, tit. 6, § 159. [See post. Vol. 3, § 289 and notes. Hinkle v. Wanzer, 1 7 How. U. S. 353 ; Lawton v. Kittredge, 10 Foster, 500 ; Ing v. Brown, 3 Md. Ch. Decis. 521; Glen v. Grover, 3 Md. 212; Jordan v. Fenuo, 8 Eng. 593; Johnson v. McGruder, 15 Mis. 365 ; Walton v. Walton, 17 lb. 376 ; White e. Crew, 16 Geo. 416 ; Calkins v. Evans, 5 Ind. 441.] 3 Wood V. Hickock, 2 Wend. 501 ; Parrott v. Thacher, 9 Pick. 426 ; Thomas f. Graves, 1 Const. Rep. 150, [308] ; Post, Vol. 2, [7th ed.] § 252 [and notes.] As attempts have been made in some recent instances, to introduce into Ecclesiastical- Councils in the United States the old and absurd rules of the Canon Law of England, foreign as they are to the nature and genius of American institutions, the following statement of the light in which those rules are at present regarded in England, will not be unacceptable to the reader. It is taken from the (London) Law Review, &c., for May, 1846, pp. 132-135. " In the Ecclesiastical Courts, the rule requiring a plurality of 364 LAW OP EVIDENCE. [PART 11. § 261. There are also certain sales, for the proof of which witnesses, is carried far beyond the verge of common sense ; and although no recent decision of those Courts has, we believe, been pronounced, ex- pressly determining that five, seven, or more witnesses, are essential to con- stitute full proof, yet the authority of Dr. Ayliffe, who states that, according to the Canon Law, this amount of evidence is required in some matters, has been very lately cited, with apparent assent, if not approbation, by the learned Sir Herbert Jenner Fust.l The case in support of which the above high authority was quoted, was a suit for divorce.2 In a previous action for criminal conversation, a special Jury had given £500 damages to the hus- band, who, with a female servant,^ had found his wife and the adulterer together in bed. This last fact was deposed to by the servant ; but as she was (he only witness called to prove it, and as her testimony was uncor- roborated, the learned Judge did not feel himself at liberty to grant the promoter's prayer. This doctrine, that the testimony of a single witness, though omni exceptione major, is insufficient to support a decree in the Ecclesiastical Courts, when such testimony stands unsupported by adminicu- lar circumstances, has been frequently propounded by Lord Stowell, both in suits for divorce,* for defamation,^ and for brawling ; 6 and before the new Will Act was passed,' Sir John Nicholl disregarded similar evidence, as not 1 Evans v. Evans, 1 Roberts, Ecc. R. 171. The passage cited from Aylifle, Par. 444, is as follows : " Full proof is made by two or three witnesses at the least. For there are some matters wliieh, according to the canon law, do require five, seven, or more witnesses, to make full proof" The same learned commen- tator, a little farther on, after explaining that " liquid proof is that which appeal's to the Judge from the act of Court, since that cannot be properly said to be mani- fest or notorious ; " adds, — By the canon law, a Jew is not admitted to give evi- dence against a Christian, especialli/ if he be a clergyman, for by that law the proq/s against a clergyman ought to be much clearer than against a layman. Par. 448 Dr. Ayliffe does not mention what matters require this superabundant proof, but we have already said, (Vol. 1, p. 880, n.) that in the case of a cardinal charged with incontinence, the probatio, in order to he plena, must he established by no less than seven eye witnesses ; so improbable does it appear to the Church that one of her highest dignitaries should be guilty of such an offence, and so anxious is she to avoid all possibility of judicial scandal. This is adopting with a ven- geance the principles of David Hume with respect to miracles. 2 Evans v. Evans, 1 Roberts, Ecc. E. 165. * The fact that the witness was a woman, does not seem to have formed an element in the judgment of the Court, though Dr. Ayliffe assures his readers, with becoming gravity, that " by the canon law, more credit is given to male than to female witnesses." Par. 545. * Donnellan v. DonneUan, 2 Hagg. 144. (Suppl.) s Crompton v. Butler, 1 Cons. R. 460. 5 Hutchins v. Denziloe, 1 Cons. R. 181, 182. ' 7 W. 4 and 1 Vict. c. 26, which, by § 34, appUes to wills made after the 1st of January, 1833. CHAP. XIV.] NUMBER OF WITNESSES. 365 the law requires a deed, or other written document. Thus, amounting to legal proof of a testamentary aot.l In the ease too, of Mac- kenzie V. Yeo,2 when a codicil was propounded, purporting to have been duly executed, and was deposed to by one attesting witness only, the other having married the legatee, Sir Herbert Jenner Fust refused to grant pro- bate, though he admitted the witness was unexceptionable, on the ground that his testimony was not confirmed by adminicular circumstances, and that the probabilities of the case inclined against the factum of such an instru- ment.3 In another case, however, the same learned Judge admitted a paper to probate on the testimony of one attesting witness, who had been examined a few days after the death of the testator, though the other witness, whose deposition had not been taken till two years and a half afterwards, declared that the will was not signed in his presence. In this case there was a formal attestation clause, and that fact was regarded by the Court as favoring the supposition of a due execution. Though the cases cited above certainly establish beyond dispute, that, by the Canon Law, as recognized in our spiritual Courts, one uncorroborated witness is insufficient, they as certainly decide, that, in ordinary cases at least, two or more witnesses need not depose to the principal fact ; but that it will suffice if one be called to swear to such fact, and the other or others speak merely to confirmatory circum- stances. Nay, it would seem, from some expressions used, that, as in cases of perjury, documentary or written testimony, or the statements or conduct of the party libelled, may supply the place of a second witness.^ If, indeed, proceedings be instituted under the provisions of some statute, which ex- pressly enacts that the offence shall be proved by two lawful witnesses, as, for instance, the Act of 5 & 6 Edw. 6, c. 4, which relates to brawling in a church or churchyard, the Coiirt might feel some delicacy about presum- ing that such an enactment would be satisfied, by calling one witness to the fact, and one to the circumstances.^ It seems that this rule of the canonists depends less on the authority of the civilians than on the Mosaic code, which enacts, that one witness shall not rise up against a man for any iniquity ; but at the mouth of two or three witnesses shall the matter be estabUshed.6 Indeed, the decretal of Pope Gregory the Ninth, which en- 1 Theakston v. Marson, 4 Hagg. 313, 314. 2 3 Curteis, 125. * Gove V. Gawen, 3 Curteis, 151. * In Kendrick v. Kendriek, 4 Hagg. 114, the testimony of a single witness to adultery being corroborated by evidence of the misconduct of the wife, was held to be sufficient, Sir John Nicholl distinctly stating, " that there need not be two witnesses ; one witness and circumstances in corroboration are all that the law in these cases requires," pp. 136, 137,- and Dr. Lushington even admitting, that " he was not prepared to say that one, clear and unimpeached witness was in- sufficient," p. 130. See also 3 Burn. Eccl. L. 304. ■ ^ Hutchins v. Denziloe, 1 Cons. R. 182, per Lord Stowell. 6 Deut. c. 19, V. 15 ; Deut. c. 17, v. 6 ; Numbers, c. 35, v. 30. [The rule of the 31* 366 LAW OF EVIDENCE. [PAET 11. by the statutes of the United States,^ and of Great Britain,^ forces the observance of this doctrine,^ expressly cites St. Paul as an authority, where he tells the Corinthians that ' in ore duorum vel trium tes- tium Stat omne verbum.'* Now, however well suited this rule might have been to the peculiar circumstances of the Jewish nation, who, like the Hin- dus of old, the modern Greeks, and other enslaved and oppressed people, entertained no very exalted notions on the subject of truth ; and who, on one most remarkable occasion, gave conclusive proof that even the necessity of calling two witnesses was no valid protection against the crime of per- jury ; 5 — it may well be doubted whether, in the present civilizsd age, such a doctrine, instead of a protection, has not become an impediment to justice, and whether, as such, it should not be abrogated. That this was the opin- ion of the Common-Law Judges in far earlier times than the present, is 1 United States Navigation Act of 1792, ch. 45, § 14 ; Stat. 1793, ch. 52 ; [Stat. 1793, ch. 1 ; lb. ch. 8, Vol. 1, U. S. Statutes at Large (Little &Brown's edit.) page 294, and page 305] ; Abbott on Shipping, by Story, p. 45, a. (2) ; 3 Kent, Comm. 143, 149. [See also Stat. 1850, ch. 27, 9 U. S. Stat, at Large, (L. & B.'s edit.) 440.] 2 Stat. 6 Geo. 4, c. 109 ; 4 Geo. 4, c. 48 ; 3 & 4 W. 4, c. 55, § 31 ; Abbott on Shipping, by Shee, p. 47-52. Jewish law, above cited, is expressly applied to crimes only, and extends to all persons, lay as well as ecclesiastical. If it was designed to have any force beyond the Jewish theocracy or nation, it must, of course, be the paramount law of the criminal code of all Christian nations, at this day, and forever. St. Paul makes merely a passing allusion to it, in reference to the third time of his coming to the Corinthians ; not as an existing rule of their law ; and much less with any view of imposing on them the municipal regulations of Moses. The Mosaic law, except those portions which are purely moral and universal in their nature, such as the ten commandments, jivas never to be enforced on any converts from heathenism. See Acts, cli. 15 ; Galatians, ch. 2, v. 11-14. Of course, it is not binding on us. Our Saviour, in Matt. ch. 18, v. 16, 17, directs that, in a ease of private difference between Christian brethren, the injured party shall go to the offender, taking with , him " one or two more," who are, in the first instance, to act as arbitrators and peacemakers ; not as witnesses ; for they are not necessarily supposed to have any previous knowledge of the case. Afterwards these may be called as witnesses before the Church, to testify what took place on that occasion ; and their number will satisfy any rule, even of the Jewish Church, respecting the number of wit- nesses. But if this passage is to be taken as an indication of tlie number of wit- nesses, or quantity of oral proof to be required, it cannot be extended beyond the case for which it is prescribed ; namely, the case of a private and personal wrong, prosecuted before the Church, in the way of ecclesiastical discipline, and this only where the already existing rule requires more than one witness. G.] 8 Dec, Greg. lib. 2, tit. 20, c. 23. 4 2 Cor. c. 13, V, 1. 6 St. Matthew, c. 26, v. 60, 61. CHAP. XIV.] STATUTE OF FRAUDS. 367 the grand bill of sale is made essential to the complete trans- fer of any ship or vessel; though, as between the parties themselves, a title may be acquired by the vendee without such document. Whether this documentary evidence is required by the law of nations or not, is not perfectly set- tled ; but the weight of opinion is clearly on the side of its necessity, and that without this, and the other usual docu- ments, no national character is attached to the vessel.^ § 262. Written evidence is also required of the several transactions mentioned in the Statute of Frauds, passed in the reign of Charles II., the provisions of which have been enacted, generally in the same words, in nearly all of the United States.^ The rules of evidence contained in this celebrated statute are calculated for the exclusion of perjury, by requiring, in the cases therein mentioned, some more satisfactory and convincing testimony than mere oral evi- dence affords. The statute dispenses with no proof of con- sideration which was previously required, and gives no efficacy to written contracts which they did not previously apparent from several old decisions, which restrict the rule to causes of merely spiritual conusance, and deternaine that all temporal matters, which incidentally arise before the ecclesiastical courts, may, "and indeed must, be proved there, as elsewhere, by such evidence as the Common Law would allow." 3 See also Best's- Principles of Evidence, § 390-394; Wills on Cir- cumst. Evid. p. 23 ; 2 H. Bl. 101 ; 2 Inst. 608. 1 Abbott on Shipping, by Story, p. 1, n. (1,) and cases there cited ; Id. p. 27, n. (1) ; Id. p. 45, n. (2) ; Ohl v. The Eagle Ins. Co. 4 Mason, 172 ; Jacobsen's Sea Laws, B. 1, ch. 2, p. 17 ; [3 Kent, Comm. 130.] 2 29 Car. 2, c. 3 ; 4 Kent, Com. 95, and note (b,) (4th ed.) The Civil Code of Louisiana, art. 2415, without adopting in terms the provisions of the Statute of Frauds, declares generally that all verbal sales of immovable property or slaves, shall be void. 4 Kent, Comm. 450, note (a,) (4th edit.) [For the general provisions of the existing English statutes, and of the statutes of all the United States except Louisiana, and excepting Kansas and Minnesota, admitted into the Union since the publication of his volume, see Browne on Stat, of Frauds, Appendix, p. 501-532.] 8 Richardson v. Disborow, 1 Vent. 291 ; Shotter v. Friend, 2 Salk. 547 ; Breedon V. Gill, Ld. Eaym. 221. See further, 3 Burn. Eccl. L. 304-308. 868 LAW OP EVIDENCE. [PAET II, possess.^ Its policy is to impose such requisites upon private transfers of property, as, without being hindrances to fair ti-ansactions, may be either totally inconsistent with dis- honest projects, or tend to multiply the chances of detection.^ The object of the present work will not admit of an ex- tended consideration of the provisions of this statute ; but will necessarily restrict us to a brief notice of the rules of evidence which it has introduced. 1 2 Stark. Evid. 341. 2 Roberts on Frauds, Pret. xxii. This statute introduced no new principle into the law ; It was new in England only in the mode of proof which it required. Some protective regulations, of the same nature, may be found in the early codes of most of the Northern nations, as well as in the laws of the Anglo-Saxon princes ; the prevention of frauds and perjuries being sought, agreeably to the simplicity of those unlettered times, by requiring a certain number of witnesses to a valid sale, and sometimes by restricting such sales to particular places. In the Anglo-Saxon laws, such regulations were quite familiar ; aijd the Statute of Frauds was merely the revival of obsolete provisions, demanded by the circumstances of the times, and adapted, in a tiew mode of proof, to the improved condition and habits of the trading community. By the laws of Lotharius and Edric, kings of Kent, § 16, if a Kentish man purchased anything in London, it must be done in the presence of two or three good citizens, or of the mayor of the city. (Canciani, Leges Barbarorum Antiquse, Vol. 4, p. 231.) The laws of King Edward the Elder, (De jure et lite, § 1,) required the testimony of the mayor, or some other credible person to every sale, and prohibited all sales out of the city. (Cancian. ub. sup. p. 256.) King Athelstan prohibited sales in the country, above the value of xx pence ; and, for those in the city, he required the same formalities as in the laws of Edward. (Id. pp. 261, 262, LL. Athelstani, § 12.) By the laws of King Ethelred, every freeman was required to have his surety, (fidejussor,) without whom, as well as other evidence, there could be no valid sale or barter. " NuUus homo faciat alteru- trum, nee emat, nee permutet, nisi fidejussorem habeat, et testimonium." (Id. p. 287, LL. Ethelredi, §§ 1, 4.) In the Concilium Seoulare of Canute, § 22, it was provided, that there should be no sale, above the value of four pence, whether in the city or country, without the presence of four wit- nesses. (Id. p. 305.) The same rule, in nearly the same words, was enacted by William the Conqueror. (Id. p. 357, LL. Guil. Conq. § 43.) Afterwards in the Charter of the Conqueror, (§ 60,) no cattle (" nulla viva pecunia," scil. animalia,) could be legally sold, unless in the cities, and in the presence of three witnesses. (Cancian. ub. sup. p. 360, Leges Anglo- Saxonicse, p. 198, (o.) Among the ancient Sueones and Goths, no sale was originally permitted but in the presence of witnesses, and (per mediatores) CHAP. XIV.] STATUTE OF FRAUDS. 869 § 263. By this statute, the necessity of some writing is universally required, upon all conveyances of lands, or inter- est in lands, for more than three years ; all interests, whether of freehold or less than freehold, certain or uncertain, created by parol without writing, being allowed only the force and effect of estates at will ; except leases, not exceeding the term of three years from the making thereof, whereon the rent reserved shall amount to two thirds of the improved value. The term of three years, for which a parol lease through the medium of brokers. The witnesses were required in order to preserve the evidence of the sale ; and the brokers, or mediators, (ut pre- tium moderarentur,) to prevent extortion, and to see to the title. But these formalities were afterwards dispensed with, except in the sale of articles of value, (res pretiosse,) or of great amount. (Cancian. ub. sup. p. 231, n. 4.) Alienations of lands were made only (publicis Uteris) by documents legally authenticated. By the Danish Law, lands in the city or country might be exchanged without judicial appraisement, (per tabulas manu signoque per- mutantis affixas,) by deed, under the hand and seal of the party. (Id. p. 261, n. 4.) The Roman Law required written evidence in a great variety of eases, embracing, among many others, all those mentioned in the Statute of Frauds ; which are enumerated by N. De Lescut, De Exam. Testium, Cap. 26. (Farinac. Oper. Tom. 2, App. 243.) See also Brederodii Reper- torium Juris, col. 984, verb. Scriptura. Similar provisions, extending in some cases even to the proof of payment of debts, were enacted in the stat- utes of Bologna, (A. D. 1454,) Milan, (1498,) and Naples, which are pre- fixed to Danty's Traits de la Preuve, par Temoins. By a Perpetual Edict in the Archduchy of Flanders, (A. D. 1611,) all sales, testaments, and con- tracts whatever, above the value of three hundred livres Artois, were re- quired to be in writing. And in France, by the Ordonnance de Moulins, (A. D. 1566,) confirmed by that of 1667, parol or verbal evidence was ex- cluded in all cases, where the subject-matter exceeded the value of one hun- dred livres. See Danty, de la Preuve, &o. passim ; 7 Poth. (Euvres, &o. 4to. p. 56 ; Traitd de la Proc^d. Civ. ch. 3, art. 4, Regie 3me. ; 1 Poth. on Obi. -part 4, oh. 2, arts. 1, 2,3, 5; Commercial Code of France, art. 109. The dates of these regulations, and of the Statute of Frauds, and the coun- tries in which they were adopted, are strikingly indicative of the revival and progress of commerce. Among the Jews, lands were conveyed by deed only, from a very early period, as is evident from the transaction mentioned in Jer. xxxii. 10, 11, 12; where the principal document was" sealed accord- ing to the law and custom," in the presence of witnesses ; and another writ- ing, or " open evidence," was also taken, probably, as Sir John Chardin thought, for common use, as is the manner in the East at this day. 370 LAW OF EVIDENCE. [PART II. may be good, must be only three years from the making of it ; but if it is to commence in futuro, yet if the term is not for more than three years it will be good. And if a parol lease is made to hold from year to year, during the pleasure of the parties, this is adjudged to be "a lease only for one year certain, and that every year after it is a new springing interest, arising upon the first contract, and parcel of it ; so that if the tenant should occupy ten years, still it is pro- spectively but a lease for a year certain, and therefore good, within the exception of the statute ; though as to the time past it is considered as one entire and valid lease for so many years as the tenant has enjoyed it.^ But though a parol lease for a longer period than the statute permits is void for the excess, and may have only the effect of a lease for a year, yet it may still have an operation, so far as its terms apply to a tenancy for a year. If, therefore, there be a parol lease for seven years for a specified rent, and to com- mence and end on certain days expressly named; though this is void as to duration of the lease, yet it must regulate all the other terms of the tenancy.^ § 264. By the same statute, no leases, estates, or interests, either of freehold or terms of years, or an uncertain interest, other than copyhold or customary interests in lands, tene- ments, or hereditaments, can be assigned, granted, or surren- dered, unless by deed or writing, signed by the party, or his agent authorized by writing,^ or by operation of law. At Common Law, surrenders of estates for life or years in things corporeal were good, if made by parol ; but things incorpo- real, lying in grant, could neither be created nor surrendered but by deed.* The effect of this statute is not to dispense 1 Roberts on Frauds, p. 241-244 ; [Browne on Stat, of Frauds, § 1-40.] 2 Doe V. Bell, 5 T. E. 471 ; [Browne on Stat, of Frauds, § 39.] 3 In the statutes of some of the United States, the words " authorized by writing " are omitted ; in which case it is sufficient that the agent be author- ized by parol, in order to make a binding contract of sale; provided the con- tract itself be made in writing ; but his authority to convey must be by deed. Story on Agency, § 50 ; Alna v. Plummer, 4 Greenl. 258. • , 4 Co. Lit. 337 &, 338 a; 2 Shep. Touchst. (by Preston) p. 300. CHAP. XIV.] STATUTE OF FRAUDS. 371 with any evidence required by the Common Law, but to add to its provisions somewhat of security, by requiring a new and more permanent species of testimony. "Wherever, there- fore, at Common Law a deed was necessary, the same so- lemnity is still requisite ; but with respect to lands and tene- ments in possession, which before the statute might have been surrendered by parol, that is, by words only, some note in writing is now made essential to a valid surrender.^ § 265. As to the effect of the cancellation of a deed to de- vest the estate, operating in the nature of a surrender, a dis- tinction is taken between things lying in livery, and those which lie only in grant. In the latter case, the subject being incorporeal, and owing its very existence to the deed, it ap- pears that at Common Law the destruction of the deed by the party, with intent to defeat the interest taken under it, will have that effect.. Without such intent, it will be merely a case of casual spoliation. But where the thing lies in liv- ery and manual occupation, the deed being at Common Law, only the authentication of the transfer, and not the operative act of conveying the property, the cancellation of the instru- ment will not involve the destruction of the interest conveyed.^ It has been thought, that since writing is now by the statute made essential to certain leases of hereditaments lying in liv- ery, the destruction of the lease would necessarily draw after it the loss of the interest itself.^ But the better opinion seems to be, that it will not ; because the intent of the stat- ute is to take away the mode of transferring interests in lands by symbols and words alone, as formerly used, and therefore a surrender by cancellation, which is but a sign, is also taken away at law ; though a symbolical surrender may 1 Roberts on Frauds, p. 248 ; [Browne on Statute of Frauds, § 41- 57.] 2 Boberts on Frauds, pp. 248, 249 ; Bolton v. Bp. of Carlisle, 2 H. Bl. 263, 264; Doe v. Bingham, 4 B. & A. 672; Holbrook w. Tirrell, 9 Pick. 105; Botsford V. Morehouse, 4 Conn. 550 ; Gilbert v. Bulkley, 5 Conn. 262 ; Jack- son V. Chase, 2 Johns. 86. See infra, § 668. 3 4 Bac. Abr. 218, tit. Leases and Terms from Years, T. 372 LAW OF EVIDENCE. [PART II. still be recognized in Chancery as the basis of relief.^ The surrender in law, mentioned in the statute, is where a tenant accepts from his lessor a new interest, inconsistent with that which he previously had ; in which case a surrender of his former interest is presiimed.^ § 266. This statute further requires that the declaration or creation of trusts of lands shall be manifested and proved only by some writing, signed by the party creating the trust; and all grants and assignments of any such trust or confi- dence, are also to be in writing, and signed in the same manner. It is to be observed, that the same statute does not require that the trust itself be created by writing ; but only that it be manifested and proved by writing ; plainly meaning that there should be evidence in writing, proving that there was a trust, and what the trust was. A letter acknowledging the trust, and, a fortiori, an admission, in an answer in Chancery, has therefore been deemed sufficient to satisfy the statute.^ Resulting trusts, or those which arise by 1 Eoberts on Frauds, pp. 251, 252 ; Magennis v. McCuUogli, Gilb. Eq. R. 235 ; Natchbolt v. Porter, 2 Vern. 112 ; 4 Kent, Comm. 104 ; 4 Cruise's Dig. p. 85, (Greenleaf's ed.) tit. 32, ch. 7, §§ 5, 6, 7 ; [2d ed. (1856,) Vol. 2, p. 413 et seq.f] Roe v. Archb. of York, 6 East, 86. In several of the United States, where the owner of lands which he holds by an unregistered deed, is about to sell his estate to a stranger, it is not unusual for him to surren- der his deed to his grantor, to be cancelled, the original grantor thereupon making a new deed to the new purchaser. This redelivery is allowed to kave the practical effect of a surrender, or reconveyance of the estate, the first grantee and those claiming under him not being permitted to give parol evidence of the contents of the deed, thus surrendered and destroyed with his consent, with a view of passing a legal title to his own alienee. Farrar V. Farrar, 4 N. Hamp. 191 ; Commonwealth v. Dudley, 10 Mass. 403 ; Hol- brook V. Tirrell, 9 Pick. 105 ; Barrett v. Thorndike, 1 Greenl. 78. See 4 Cruise's Dig. tit. 32, c. 1, § 15, note, (Greenleaf's ed.) [2d ed. (1856,) Vol. 2, p. 300.] 2 Roberts on Frauds, pp. 259, 260 ; [Browne on Stat, of Frauds, §§ 44, 59, 60.] 3 Forster v. Hale, 3 Ves. 69^, 707, per Ld. Alvanley ; 4 Kent, Comm. 305 ; Roberts on Frauds, p. 95 ; 1 Cruise's Dig. (by Greenleaf,) tit. 12, ch. 1, §§ 36, 37, p. 390 ; [2d ed. (1856), Vol. 1, p. 369 ;] Lewin on Trusts, p. 30. Courts of Equity will receive parol evidence, not only to explain an imperfect dec- CHAP. XIV.] STATUTE OF FRAUDS. 373 r implication of law, are specially excepted from the operation of the statute. Trusts of this sort are said by Lord Hard- wicke to arise in three cases : first, where the estate is pur- chased in the name of one person, but the money paid for it is the property of another ; secondly, where a conveyance is made in trust, declared only as to part, and the residue re- mains undisposed of, nothing being declared respecting it; and, thirdly, in certain cases of fraud.^ Other divisions have been suggested ; ^ but they all seem to be reducible to these three heads. ' In all these cases, it seems now to be generally conceded that parol evidence, though received with great caution, is admissible' to establish the collateral facts, (not contradictory to the deed, unless in the case of fraud,) from which a trust may legally result ; and that it makes no differ- ence as to its admissibility whether the supposed purchaser be living or dead.^ laration of a testator's intentions of trust, but even to add conditions of trust to what appears a simple devise or bequest. But it must either be fairly presumable, that the testator would have made the requisite declaration, but for the undertaking of the person whom he trusted, or else it must be shown to be an attempt to create an illegal trust. Gresley on Evid. in Equity, p. 108, [292]; Strode v. Winchester, 1 Dick. 397. See White & Tudor's Leading Cases in Equity, Vol. 2, part 1, p. 591 ; [Browne on Stat, of Frauds, § 97 «< seq.; Dean v. Dean, 1 Stockton, 44. In Connecticut, it has been held that where a husband conveyed land to his father, without considera- tion, but under a parol agreement that the father should convey it to the wife of the son, parol evidence was admissible to establish the trust in favor of the wife. Hayden v. Denslow, 27 Conn. 335.] 1 Lloyd V. Spillet, 2 Atk. 148, 150. 2 1 Lomax's Digest, p. 200. 3 3 Sugden on Vendors, 256-260 (10th ed.) ; 2 Story, Eq. Jurisp. § 1201, note ; Lench v. Lench, 10 Ves. 617 ; Boyd v. McLean, 1 Johns. Ch. K. 582 ; 4 Kent, Comm. 305 ; Pritchard v. Brown, 4 N. Hamp. 397. See also an article in 3 Law Mag. p. 131, where the English cases on this subject are reviewed. The American decisions are collected in Mr. Rand's note to the case of Goodwin «. Hubbard, 15 Mass. 218. In Massachusells, there are dicta apparently to the effect, that parol evidence is not admissible in these cases; but the point does not seem to have been directly in judgment, un- less it is involved in the decision in Bullard v. Briggs, 7 Pick. 533, where parol evidence was admitted. See Storer v. Batson, 8 Mass. 431, 442; Northampton Bank v. Whiting, 12 Mass. 104, 109 ; Goodwin ii. Hubbard, 15 Mass. 210, 217. [In New Hampshire, parol evidence is admissible to estab- VOL. I. 32 374 LAW OF EVIDENCE. [PART II. § 267. Written evidence, signed by the party to be charged therewith, or by his agent, is by the same statute required in every case of contract by an executor or administrator, to answer damages out of his own estate ; every promise of one person to answer' for the debt, default, or miscarriage of another ; every agreement made in consideration of marriage ; or which is not to be performed within a year from the time of making it ; and every contract for the sale of lands, tene- ments, or hereditaments, or any interest in or concerning them. The like evidence is also required in every case of contract for the sale of goods, for the price of £10 sterling or upwards,* unless the buyer shall receive part of the goods at time of sale, or give something in earnest, to bind the bar- gain, or in part payment.^ § 268. It is not necessary that the written evidence re- quired by the Statute of Frauds, should be comprised in a single document, nor that it should be drawn up in any par- ticular form. It is sufficient, if the contract can be plainly made out, in all its terms, from any writings of the party, or even from his correspondence. But it must all be collected from the writings ; verbal testimony not being admissible to supply any defects or omissions in the written evidence.^ lish a fact from which the law will raise or imply a trust, but not to prove any declaration of trust or agreement of the parties for a trust. Moore v. Moore, 38 N. Hamp. 382.] 1 The sum here required is different in the several States of the Union, varying from thirty to fifty dollars. [See Browne on Stat, of Frauds, Ap- pendix, p. 503-532.] But the rule is everywhere the same. By the statute of 9 Geo. 4, c. 14, this provision of the Statute of Frauds is extended to con- tracts executory, for goods to be manufactured at a future day, or otherwise not in a state fit for delivery at the time of making the contract. Shares in a joint-stock company, or a projected railway, are held not to be goods or chattels, within the meaning of the statute. Humble v. Mitchell, 11 Ad. & El. 205 ; Tempest v. Kilner, 3 M. G. & S. 251 ; Bowlby «. Bell, Id. 284. a 2 Kent, Comm. 493, 494, 4S5. 3 Boydell v. Drummond, 11 East, 142; Chitty on Contracts, p. 314-316, (4th Am. ed.) ; 2 Kent, Comm. 511 ; Roberts on Frauds, p. 121 ; Tawney u. Crowther, 3 Bro, Ch. Kep. 161, 318; 4 Cruise's Dig. (by foeenleaf.) pp. 33, 35, 36, 37, tit. 32, c. 3, §§ 3, 16-26, [Greenleaf's 2d ed. (1856,) Vol. CHAP. XIV.] STATUTE OB ERATIDS. 375 For the policy of the law is to prevent fraud and perjury, by taking all the enumerated transactions entirely out of the reach of any verbal testimony whatever. Nor is the place of signature material. It is sufficient if the vendor's name be- printed, in a bill of parcels, provided the vendee's name and the rest of the bill are written by the vendor.^ Even his sig- nature, as a witness to a deed, which contained a recital of the agreement, has been held sufficient, if it appears that in fact he knew of the recit^l.^ Neither is it necessary that the agreement or memorandum be signed by both parties, or that 2, p. 344-351 and notes]; Cooper v. Smith, 15 East, 103; Parkhurst V. Van Cortlandt, 1 Johns. Ch. R. 280, 281, 282 ; Abeel v. RadclifF, 13 Johns. 297; Smith v. Arnold, 5 Mason. 414; Ide v. Stanton, 15 Verm. 685; Sherburne v. Shaw, 1 N. Hamp. 157; Adams v. McMillan, 7 Port. 73; Gale v. Nixori, 6 Cowen, 445; Meadows v. Meadows, 3 McCord, 458 ; Nichols V. Johnson, 10 Conn. 192. Whether the Statute of Frauds, in re- quiring that, in certain cases, the " agreement " be proved by writing, re- quires that the " consideration " should be expressed in the writing, as pjirt of the agreement, is a p6int which has been much discussed, and upon which the English and some American cases are in direct opposition. The English Courts hold the affirmative. See Wain v. Warlters, 5 East, 10 ; reviewed and confirmed in Saunders v. Wakefield, 4 B.'& Aid. 595; and their con- struction has been followed in New York, Sears v. Brink, 3 Johns. 210; Leonard v. Vredenburg, 8 Johns. 29. In New Hampshire, in Neelson i;. Sanborne, 2 N. Hamp. 413, the same construction seems to be recognized and approved. But in Massachusetts, it was rejected bythe whole Court, upon great consideration, in Packard v. Richardson, 17 Mass. 122. So in Maine, Levy u. Merrill, 4 Greenl. 180 ; in Connecticut, Sage v. Wilcox, 6 Conn. 81 ; in New Jersey, Buckley v. Beardsley, 2 South. 570 ; and in North Carolina, Miller v. Irvine, 1 Dev. & Batt. 103 ; and now in South Carolina, Fyler v. Givens, Riley's Law Cas. pp. 56, 62, overruling Stephens u. Winn, 2 N. & McC. 372, n. ; Woodward v. Pickett, Dudley's So. Car. Rep. p. 30. , See also Violet v. Patton, 5 Cranch, 142 ; Taylor v. Ross, 3 Yerg. 330 ; 3 Kent, Comm. 122 ; 2 Stark. Evid. 350, (6th Am. edit.) • Saunderson v. Jackson, 2 B. & P. 238, as explained in Champion v. Plummer, 1 New Rep. 254; Robertson Frauds, pp. 124, 125 ; Penniman v. Hartshorn, 13 Mass. 87. 2 Welford v. Beezely, 1 Ves. 6 ; 1 Wils. 118, S. C. The same rule, with its qualification, is recognized in the Roman Law, as applicable to all sub- scribing witnesses, except those whose official duty obliges them to sub- scribe, such as notaries, &c. Menochius, De Praesump. lib. 3 ; Prsesump. 66, per tot. 376 LAW OP EVIDENCE. [PAKT 11. both be legally bound to the performance ; for the statute only requires that it be signed "by the party to be charged therewith," that is, by the defendant against whom the per- formance or damages are demanded.^ § 269. Where the act is done by procuration, it is not neces- sary that the agent's authority should be in writing ; except in those cases where, as in the first section of the statute of 29 Car. 2, c. 3, it is so expressly required. These excepted cases are understood to be those of an actual conveyance, not of a contract to convey ; and it is -accordingly held, that though the agent to make a deed must be authorized by deed, yet the agent to enter into an agreement to convey is suffi- ciently authorized by parol only.^ An Auctioneer is regarded as the agent of both parties, whether the subject of the sale be lands or goods ; and if the whole contract can be made out from the memorandum and entries signed by him, it is sufficient to bind them both.^ § 270. The word lands, in this statute, has been expounded to include every claim of a permanent right to hold the lands of another, for a particular purpose, and to enter upon them ^ Allen V. Bennett, 3 Taunt. 169 ; 3 Kent, Coram. 510, and cases there cited; Shirley v. Shirley, 7 Blaekf. 452; Davis v. Shields, 26 Wend. 341; Douglass V. Spears, 2 N. & MeC. 207. 2 Story on Agency, § 50 ; Coles v. Trecothick, 9 Ves. 250 ; Clinan v. Cooke, 1 Sch. & Lef. 22 ; Roberts on Frauds, p. 113, n. (54) ; [Browne on Stat, of Frauds, § 355-366.] If an agent, having only a verbal authority, should execute a bond in the name of his principal, and afterwards he be regularly constituted by letter of attorney, bearing date prior to that of the deed ; this is a subsequent ratification, operating by estoppel against the principal, and rendering the bond valid in law. Millikeu v. Coombs, 1 Greenl. 343. And see Ulen v. Kittredge, 7 Mass. 233. 3 Emmerson i.. Heelis, 2 Taunt. 38 ; White v. Procter, 4 Taunt. 209 ; Long on Sales, p. 38, (Rand's ed.) ; Story on Agency, § 27, and cases there cited; Cleaves v. Foss, 4 Greenl. 1 ; Roberts on Frauds, pp. 113, 114, note (56) ; 2 Stark. Evid. S52„(6th Am. ed.) ; Davis v. Robertson, 1 Rep. Const. C. 71 ; Adams v. McMillan, 7 Port. 73; 4 Cruise, Dig. tit. 32, ch. 3, § 7, note, (Greenleaf's ed.) [M ed. (1856,) Vol. 2, p. 346 ; Browne on Stat, of Frauds, §§347, 369.] CHAP. XIV.] STATUTE OF FRAUDS. S77 at all times, without his consent. It has accordingly been held, that a right to enter upon the lands of another, for the purpose of erecting and keeping in repair a mill-dam em- bankment, and canal, to raise water for working a mill, is an interest in land, and cannot pass but by deed or writing.^ But where the interest is vested in a corporation, and not in the individual corporators, the shares of the latter in the stock of the corporation are deemed personal estate.^ § 271. The main difficulties under this head have arisen in the application of the principle to cases, where the subject of the contract is trees, growing crops, or other things annexed to the freehold. It is well settled that a contract for the sale oi fruits of the earth, ripe, but not yet gathered, is not a con- tract for any interest in lands, and so not within the Statute of Frauds, though the vendee is to enter and gather them.^ And subsequently it has been held, that a contract for the sale' of a crop of potatoes was essentially the same, whether they were covered with earth in a field, or were stored in a box ; in either case, the subject-matter of the sale, namely, potatoes, being but a personal chattel, and so not within the Statute of Frauds.* The latter cases confirm the doctrine involved in this decision, namely, that the transaction takes its character of realty or personalty from the principal sub- ject-matter of the contract, and the intent of the parties ; and that therefore a sale of any growing produce of the earth, reared by labor and expense, in actual existence at the time of the contract, whether it be in a state of maturity or not, is not to be considered a sale of an interest in or concerning land.^ In regard to things produced annually by the labor of 1 Cook V. Stearns, 11 Mass. 533; [Browne on Stat, of Frauds, § 227- 262.] 2 BligU V. Brent, 2 Y. & Col. 268, 295, 296 ; Bradley ». Holdswortli, 3 M. & W. 422. 3 Parker v. Staniland, 11 Bast, 362 ; Cutler v. Pope, 1 Shepl. 337. * Warwick v. Bruce, 2 M. & S. 205. The contract was made on the 12th of October when the crop was at its maturity ; and it would seem that the potatoes were forthwith to be digged and removed. 5 Evans v. Roberts, 5 B. & C. 829 ; Jones v. Flint, 10 Ad. & El. 753. 32* 378 LAW OF EVIDENCE. [PAET XI. man, the question is sometimes solved by reference to the law of emblements ; on the ground, that whatever will go to the executor, the tenant being dead, cannot be considered as ^ an interest in land.^ But the case seems also to be covered by a broader principle of distinction, namely, between con- tracts conferring an exclusive right to the land for a time, for '' the purpose of making" a profit of the growing' surface, and contracts for things annexed to the freehold, in prospect of 1 their immediate separation; from which it seems to result, ' that where timber, or other produce of the land, or any other I thing annexed to the freehold, is specifically S0I4, whether it ? is to be severed from the soil by the vendor, or to be taken by the vendee, under a special license to enter for that purpose, it is still in the contemplation of the parties, evidently and substantially a sale of goods only, and so is not within the statute.^ 1 See observations of the learned Judges, in Evans v. Roberts, 5 B. & C. 829. See also Rodwell v. Phillips, 9 M. & W. 501, where it was held, that an agreement for the sale of growing pears was an agreement for the sale of an interest in land, on the principle, that the fruit would not pass to the executor, but would descend to the heir. The learned Chief Baron distin- guished this case from Smith v. Surman, 9 B. &C. 561, the latter being the case of a sale of growing timber by the foot, and so treated by the parties as if it had been actually felled ; — a distinction which confirms the view subse- quently taken in the text. 2 Roberts on Frauds, p. 126 ; 4 Kent, Comm. 450, 451 ; Long on Sales, (by Rand,) p. 76-81, and cases there cited; Chitty on Contracts, p. 241, (2d edit.) ; Bank of Lansingburg v. Crary, 1 Barb. 542. On this subject neither the English nor the American decisions are quite uniform ; but the weight of authority is believed to be as stated in the text, though it is true of the former, as Ld. Abinger remarked in Rodwell v. Phillips, 9 M. & W. 505, that " no general rule is laid down in any one of them, that is not con- tradicted by some others." See also Poulter v. Killingbeck, 1 B. & P. 398; Parker v. Staniland, 11 East, 362, distinguishing and qualifying Crosby v. Wadsworth, 6 East, 611 ; Smith v. Surman, 9 B. & C. 561 ; Watts v. Friend, 10 B. & C. 446. The distinction taken in Bostwick v. Leach, 3 Day, 476, 484, is this, that when there is a sale of property, which would pass by » deed of land, as such, without any other description, if it can be separated from the freehold, and by the contract is to be separated, such contract is not within the statute. See accordingly, Whipple v. Foot, 2 Johns. 418, 422 ; Frear v. Hardenbergh, 5 Johns. 276 ; Stewart v. Doughty, 9 Johns. 108, 112 ; Austin v. Sawyer, 9 Cowen, 39 ; Erskine v. Plummer, 7 Greenl. CHAP. XIV.] STATUTE OF FRAUDS. 379 § 272. Devises of lands arid -tenements are also required to be in writing, signed by the testator, and attested by- credible, that is, by competent witnesses. By the statutes, 82 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 5, devises were merely required to be in writing. The Statute of Frauds, 447; Bishop v. Doty, 1 Vermont, R. 38; Miller v. Baker, 1 Met. 27; Whitmarsh v. Walker, Id. 313; Claflin v. Carpenter, 4 Met. 586. Mr. Rand, who has treated this subject, as well as all others on which he has written, with great learning and acumen, would reconcile the English authorities, by distinguishing between those cases in which the subject of the contract, being part of the inheritance, is to be severed and delivered by the vendor, as a chattel, and those in which a right of entry by the vendee to cut and take it is bargained for. " The authorities," says he, " all agree in this, that a bargain for trees, grass, crops, or any such like thing, when severed fiom the soil, which are growing, at the time of the contract, upon the soil, but to be severed and delivered by the vendor, as chattels, separate from any interest in the soil, is a contract for the sale of goods, wares, or merchandise, within the meaning of the seventeenth section of the Statute of Frauds. (Smith v. Surnian, 9 B. & C. 561 ; Evans v. Roberts, 5 B. & C. 836; Watts v. Friend, 16 B. & C. 446 ; Parker v. Staniland, 11 East, 362; Warwick v. Bruce, 2 M. & S. 205.) So, where the subject- matter of the bargain is fruclus industriales, sach. as corn, garden roots, and suchlike things, which are emblements, and' which have already grown to maturity, and are to be taken immediately, and no right of entry form.i' absolutely part of the contract, but a mere license is given to the vendee to enter and take them, it will fall within the operation of the same section of the statute. (Warwick v. Bruce, 2 M. & S. 205 ; Parker v. Staniland, 11 East, 362; Park, B., Carrington u.- Roots, 2 M. & W. 256; Bayley, B., Shelton V. Livius, 2 Tyrw. 427, 429 ; Bayley, J., Evans v. Roberts, 5 B. & C. 831 ; Scorell v. Boxall, 1 Y. & J. 398 ; Mayfield v. Wadsley, 3 B. & C. 357.) But where the subject-matter of the contract constitutes a part of the in- heritance, and is not to be severed and delivered by the vendor as a chattel, but a right of entry to cut and take it is bargained for, or, where it is emblements growing, and a right in the soil to grow and bring them to maturity, and to enter and take them, that makes part of the bargain, the case will fall within the fourth section of the Statute of Frauds. (Carrington V. Roots, 2 M. & W. 257 ; Shelton v. Livius, 2 Tyrw. 429 ; Scorrell v. Boxall, 1 Y. & J. 398 ; Earl of Falmouth u. Thomas, 1 Cr. & M. 89 ; Teal v. Auty, 2 B. & Biug. 99 ; Emmerson v. Heelis, 2 Taunt. 38 ; Waddington v. Bristow, 2 B.-& P. 452 ; Crosby v. Wadsworth, 5 East. 602.) " See Long on Sales, (by Rand,) pp. 80, 81. But the latter English and the American authorities do not seem to recognize such distinction. [See also Browne on Stat, of Frauds, § 235-257.] 380 LAW OF EVIDENCE. [PART II. 29 Car. 2, c. 3, required the attestation of " three or four credible witnesses ; " but the statute 1 Vict. c. 26, has re- duced the number of witnesses to two. The provisions of the Statute of Frauds on this subject have been adopted in most of the United States.^ It requires that the witnesses should attest and subscribe the will in the testator's presence. The attestation of marksmen is sufficient ; and, if they are dead, the attestation may be proved by evidence, that they lived near the testator, that no others of the same name resided in the neighborhood, and t)iat they were illiterate persons.^ One object of this provision is, to prevent the substitution of another instrument for the genuine will. It is therefore held, that to be present, within the meaning of the statute, though the testator need not be in the same room, yet he must be near enough to see and identify the instrument, if he is so disposed, though in truth he does not (attempt to do so; and that he must have mental knowledge and consciousness of the fact.^ K he be in a state of insen- sibility at the moment of attestation, it is void.* Being in 1 In New HampsJiire alone the wiH is required to be sealed. Three wit- ■ nesses are necessary to a valid will in Vermont, New Hampshire,- Maine, Massachusetts, Rhode Island, Connecticut, New Jersey, Maryland, South Carolina, Georgia, Florida, Alabama, and Mississippi. Two witnesses only are requisite in New York, Delaware, Virginia, Ohio^ Illinois, Indiana, Mis- souri, Tennessee, North Carolina, Michigan, Wisconsin, Arkansas, and Kentucky. In some of the States, the provision as to attestation is more special. In Pennsylvania, a devise is good, if properly signed, though it is not subscribed by any attesting witness, provided it can be proved by two or more competent witnesses ; and if it be attested by witnesses, it may still be proved by others. 4 Kent, Comm. 514. See post. Vol. 2, tit. Wills. [7th ed. (1858,) § 673-678 and notes.] See further, as to the execution of Wills, 6 Cruise's Dig. tit. 38, eh. 5, Greenleaf's notes; [2d ed. (1857,) p. 47-80 and notes ;] 1 Jarman on Wills, eh. 6, by Perkins. 2 Doe V. Caperton, 9 C. & P. 112 ; Jackson o. Van Dusen, 5 Johns. 144 ; Doe V. Davis, 11 Jur. 182. 3 Shires v. Glascock, 2 Salk. 688, (by Evans,) and cases cited in notes ; 4 Kent, Comm. 515, 516 ; Casson v. Dade, 1 Bro. Ch. R. 99 ; Doe v. Mani- fold, 1 M. & S. 294 ; Tod v. E. of Winchelsea, 1 M. & M. 12; 2 C. & P. 488 ; Hill V. Ba"rge, 12 Ala. 687. 4 Right V. Pnce, Doug. 241. CHAP. XIV.] STATUTE OF FRAUDS. 381 the same room, is held primd facie evidence of an attesta- tion in his presence ; as an attestation, not made in the same room, is primd facie not an attestation in his presence.^ It is not necessary, under the Statute of Frauds, that the wit- nesses should attest in the presence of each other, nor that they should all attest at the same time ; ^ nor is it requisite that they should actually have seen the testator sign, or ' known what the paper was, provided they subscribed the instrument in his presence and at his request.^ Neither has ' it been considered necessary, under this statute, that the tes- tator should subscribe the instrument ; it being deemed suffi- cient that it be signed by him in any part, with his own name or mark, provided it appear to have been done animo perficiendi, and to have been regarded by him as completely executed.* Thus, where the will was signed in the margin 1 Neil V. Neil, 1 Leigh, R. 6, 10-21, where the cases on this subject are ably reviewed by Carr, J. If the two rooms have a communication by folding- doors, it is still to be ascertained whether, in fact, the testator could have seen the witnesses in the act of attestation. In the goods of Col- man, 3 Curt. 118. 2 Cook V. Parsons, Preo. in Chan. 184; Jones v. Lake, 2 Atk. 177, in note ; Grayson v. Atkin, 2 Ves. 455 ; Dewey v. Dewey, 1 Met. 349 ; 1 Wil- liams on Executors, (by Troubat,) p. 46, note (2.) The statute of 1 Vict. c. 26, § 9, has altered the law in this respect, by enacting that no will shall be valid unless it be in writing, signed by the testator in the presence of two witnesses at one time. See Moore v. King, 3 Curt. 243 ; in the goods of Simmonds, Id. 79. 3 White V. Trustees of the British Museum, 6 Bing. 310 ; Wright v. Wright, 7 Bing. 457; Dewey v. Dewey, 1 Met. 349 ; Johnson v. Johnson, 1 C. & M. 140. In these cases, the Court certainly seem to regard the knowledge of the witnesses, that the instrument was a will, as a matter of no importance ; since in the first two cases only one of the witnesses knew what the paper was. But it deserves to be considered whether in such case, the attention of the witness would probably be drawn to the state of the testator's mind, in regard to his sanity ; for if not, one object of the statute would be defeated. See Rutherford v. Rutherford, 1 Denio, 33 ; Brinkerhoff v. Rem- sen, 8 Paige, 488; 26 Wend. 325 ; Chaffee v. Baptist, M. C. 10 Paige, 85 ; 1 Jarm. on Wills, (by Perkins,) p. 114; 6 Cruise's Dig. tit. 38, eh. 5, § 14, note, (Greenleaf 's ed.) [2d ed. 18S7, Vol. 3, p. 53, and note.] See further, ■as to proof by subscribing witnesses, infra, §§ 569, 569 a, 572. 4 That the party's mark or initial»is a sufficient signature to any instru- 382 LAW OP EVIDENCE. ' [PART II. only; or where, being written by the testator himself, his name was written, only in the beginning of the will, I, A. B., &c., this was held a sufficient signing.^ But where it ap- peared that the testator intended to sign each several sheet of the will, but signed only two of them, being unable, from extreme weakness, to sign the others, it was held incom- plete.^ § 273. By the Statute of Frauds, the revocation of a will, by the direct act of the testator, must be proved by some subse- quent will or codicil, inconsistent with the former ; or by some other writing, declaring the same, and signed in the presence of three witnesses ; or by burning, tearing, cancel- ling, or obliterating the same by the testator, or in his pres- ment, being placed there with intent to bind hinaself, in all cases not other- wise regulated by statute, see Baker v. Dening, 8 Ad. & El. 94 ; Jackson v. Van Dusen, 5 Johns. 144 ; Palmer v. Stephens, 1 Den. 471, and the cases cited in 6 Cruise's Dig. tit. 38, ch. 5, §§ 7, 19, notes, (Greenleaf 's ed.) [2d ed. (1857,) Vol. 3, p. 50-,56]; Post, Vol. 2, § 677. 1 Lemaine v. Stanley, 3 Lev. 1 ; Morrison v. Tumour, 18 Ves. 183. But this also is now changed by the statute 1 Vict. c. 26, § 9, by which no will is valid unless it be signed at the foot or end thereof, by the testator, or by some other person, in his presence and by his direction ; as well as attested by two witnesses, subscribing their names in his presence. See in the goods of Carver, 3 Curt. 29. 2 Right V. Price, Doug. 241. The Statute of Frauds, which has been generally followed in the United States, admitted exceptions in favor of nun- cupative or verbal wills, made under certain circumstances therein mentioned, as well as in favor of parol testamentary dispositions of personalty, by sol- diers in actual service, and by mariners at sea ; any further notice of which would be foreign from the plan of this treatise. The latter exceptions still exist in England ; but nuncupative wills seem to be abolished there, by the general terms of the statute of 1 Vict. c. 26, § 9, before cited. The Com- mon Law, which allows a bequest of personal estate by parol, without writ- ing, has been altered by statute in most, if not all of the United States ; the course of legislation having tended strongly to the abolition of all distinctions between the requisites for the testamentary disposition of real and of personal property. See 4 Kent, Comm. 516-520; Lovelass on Wills, p. 315-319; 1 Williams on Executors, (by Troubat,) p. 46-48, notes ; 1 Jarman on Wills, (by Perkins,) p. [90] 132, note ; 6 Cruise's Dig. (by Greenleaf,) tit. 38, ch. 5, § 14, note ; [2d ed. (1S57,) Vol. 8, p. 53, and note.] CHAP. XIV.] STATUTE OP FRAUDS. 383 ence and by his direction and consent.^ It is observable, that this part of the statute only requires that the instrument of revocation, if not a will or codicil, be signed by the testa- tor in presence of the witnesses, but it does not, as in the execution of a will, require that the witnesses should sign in his presence. In regard to the other acts of revocation here mentioned, they operate by one common principle, namely, the intent of the testator. Revocation is an act of the mind, demonstrated by some outward and visible sign or symbol of revocation ; ^ and the words of the statute are satisfied by any a,ct of spoliation, reprobation, or destruction, deliberately done upon the instrument, cmimo revoccmdi? The declara- tions of the testator, accompanying the act, are of course admissible in evidence as explanatory of his intention.* Ac- cordingly, where the testator rumpled up his will and threw it into the fire with intent to destroy it, though it was saved entire without his' knowledge, this was held to be a revoca- tion.^ So, where he tore off a superfluous seal.^ But where, being angry with the devisee, he began to tear his will, but being afterwards pacified, he fitted the pieces carefully to- gether, saying he was glad it was no worse, this was held to be no revocation.'' § 274. Documentary evidence is also required in proof of the contract of apprenticeship ; there being no legal binding, 1 Stat. 29 Car. 2, c. 3, § 6. The statute of 1 Vict. c. 26, § 20, mentions " burning, tearing, or otherwise destroying the same," &c. And see further, as to the evidence of revocation, 6 Cruise's Dig. (by Greenleaf,) tit. 38, ch. 6, §§ 18, 19, 29, notes ; [2d. ed. (1857,) Vol. 3, p. 81 ei seq. ; 2 Greenl. Evid. (7th ed.) § 680-687 ;] 1 Jarman on Wills, (by Perkins,) ch. 7, § 2, notes. 2 Bibb V. Thomas, 2 W. Bl. 1043. 3 Burtenshaw v. Gilbert, Cowp. 49, 52 ; Burns v. Burns, 4 S. & K. 567 ; 6 Cruise's Dig. (by Greenleaf,) tit. 38, ch. 6, § 54 ; Johnson v. Brailsford, 2 Nott & McC. 272; Winsor v. Pratt, 2 B. & B. 650; Lovelass on Wills, p. 346-360; Card v. Grinman, 5 Conn. 168; 4 Kent, Comm. 531, 532. * Dan V. Brown, 4 Cowen, 490. 5 Bibb V. Thomas, 2 W. Bl. 1043. 6 Avery v. Pixley, 4 Mass. 462. 7 Doe V. Perkes, 3 B. & Aid. 489. 384 LAW OP EVIDENCE. [PART II. to give the master coercive power over the person of the apprentice, unless it be by indentures, duly executed in the forms prescribed by the various statutes on this subject. The general features of the English statutes of apprentice- ship, so far as the mode of binding is concerned, vsriU be found in those of most of the United States. There are various otjber cases, in which a deed, or other documentary evidence is required by statutes, a particular enumeration of which would be foreign from the plan of this treatise.^ 1 In several of the United States, two subscribing witnesses are necessary to the execution of a deed of conveyance of lands to entitle it to registra- tion ; in others, but one. In some others, the testimony of two witnesses is requisite, when the deed is to be proved by witnesses. See supra, § 260, note; 4 Cruise's Dig. tit. 32, c. 2, § 77, note, (Greenleaf's ed.) [2d ed. (1856,) Vol. 2, p. 341 ;] 4 Kent, Comm. 457. See also post, Vol. 2, [7th ed. 1858,] tit. Wlhi,s, passim, where the subject ofWills is more amply treated. CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 386 CHAPTER XV. OF THE ADMISSIBILITY OF PAROL OR VERBAL EVIDENCE TO § 275. By written evidence, in this place, is meant not everything which is in writing, but that only which is of a documentary and more solemn nature, containing the terms of a contract between the parties, and designed to be the repository and evidence of their final intentions. Fiunt enim de his [contractibus] scripturm, ut, quod actum est, per easfaci- lius probari poterit? When parties have deliberately put their engagements into writing, in such terms S.s import a legal obligation, without ^ny uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing ; and all oral testimony of a previous colloquium between the par- ties, or of conversation or declarations at the time when it was completed^ or afterwards, as it would tend, in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected.^ In other words, as the 1 The subject of this chapter is ably discussed in Spence on the Equitable Jurisdiction of Chancery, Vol. 1, p. 553-575, and in 1 Smith's Leading Cases, p. 410-418, [305-310,] with Hare & Wallace's notes. 2 Dig. lib. 20, tit. 1, 1. 4 ; Id. lib. 22, tit. 4, 1. 4. 3 Staokpole v. Arnold, 11 Mass. 30, 31, per Parker, J.; Preston v. Mer- ceau, 2 W. Bl. 1249 ; Coker «. Guy, 2 B. & P. 565, 569 ; Bogert v. Cauman, Anthon's R. 70 ; Bayard v. Malcolm, 1 Johns. 467, per Kent, C. J. ; Rich v. Jackson, 4 Bro. Ch. K. 519, per Ld. Thurlow ; Sinclair v. Stevenson, 1 C. & P. 582, per Best, C. J.; McLellan v. The Cumberland Bank, 11 Shepl. 566. The general rule of the Scotch law is to the same effect, namely, that " writ- ing cannot be cut down or taken away, by the testimony of witnesses." Tait on Evid. pp. 326, 327. And this, in other language, is the rule of the Eoman VOL. L 33 386 • LAW OF EVIDENCE. [PAET 11. rule is now more briefly expressed, " parol contemporaneous evidence is inadmissible, to contradict or vary the terms of a valid written instrument." ^ § 276. This rule " was introduced in early times, when the most frequent mode of ascertaining a party to a contract was by his seal affixed to the instrument ; and it has been continued in force, since the vast multiplication of written contracts, in consequence of the increased business and com- merce of the world. It is not because a seal is put to the contract, that it shall not be explained away, varied, or ren- dered ineffectual ; but because the contract itself is plainly and intelligibly stated, in the language of the parties, and is the best possible evidence of the intent and meaning of those who are bound by the contract, and of those who are to receive the benefit of it." " The rule of excluding oral testimony has heretofore been applied generally, if not uni- versally, to simple contracts in writing, to the same extent and with the same exceptions as to specialties or contracts under seal." ^ § 277. It is to be observed, that the rule is directed only against the admission of any other evidence of the language employed by the parties in making the contract, than that which is furnished by the writing itself. The writing, it is true, may be read by the light of surrounding circumstances, in order more perfectly to understand the intent and mean- ing of the parties ; but, as they have constituted the writing to be the only outward and visible expression of their mean- ing, no other words are to be added to it, or substituted in Civil Law, — Contra scriptum testimonium, non scriptum testimonium non fertur. Cod. lib. 4, tit. 20, 1. 1. 1 Phil. & Am. on Evid. p. 753 ; 2 Phil. Evid. 350 ; 2 Stark. Evid. 544, 548 ; Adams v. Wordley, 1 M. & W. 379, 380, per Parke, B. ; Boorman ». Jotnstoii, 12 Wend. 573., 2 Per Parker, J., in Stackpole v. Arnold, 11 Mass. 31. See also Woolam V. Hearn, 7 Ves. 218, per Sir William Grant; Hunt v. Adams, 7 Mass. 522, per Sewall, J. CHAP, XV.] ADMISSIBILITY OF PAROL EVIDENCE. 387 its stead. The duty of the Court in such cases, is to ascer- tain, not what the parties may have secretly intended, as contradistinguished from what their words express ; but what is the meaning of words they have used.'^ It is merely a duty of interpretation ; that is, to find out the true sense of ■ the written words, as the parties used them ; and of construc- tion, that is, when the true sense is ascertained, to subject the instrument, in its operation, to the established rules of law.''' And where the language of an instrument has a set- tled legal construction, parol evidence is not admissible to contradict that construction. Thus, where no time is ex- pressly limited for the payment of the money mentioned in a special contract in writing, the legal construction is, that it is payable presently; and parol evidence of a contempora- neous verbal Eigreement, for the payment at a future day, is not admissible.^ § 278. The terms of every written instrument are to be understood in their plain, ordinary, and popular sense, unless 1 Doe V. Gwillim, 5 B. & Ad. 122, 129, per Parke, J.; Doe v. Martin, 4 B. & Ad. 771, 786, per Parke, J. ; Beaumont v. Field, 2 Chitty's R. 275, per Abbott, C. J. See infra, § 295. [And where a written instrument is lost, and parol evidence is given of its contents, its construction still remains the duty of the Court. Berwick b. Horsfall, 4 Com. B. Reps. N. S. 450.] 2 The subject of Interpretation and Construction is ably treated by Pro- fessor Lieber, in his Legal and Political Hermeneutics, ch. 1, § 8, and ch. 3, §§ 2, 3. And see Doct. & St. 39, c. 24. The interpretation, as well as the construction of a written instrument, is for the Court, and not for the Jury. But other questions of intent, in fact, are for the Jury. The Court, how- ever, where the meaning is doubtful, will, in proper cases, receive evidence in aid of its judgment. Story on Agency, § 63, note (1) ; Paley on Agency, by Lloyd, p. 198, n. ; Supra, § 49 ; Hutchinson v. Bowker, 5 M. & W. 535 ; and where it is doubtful whether a certain word was used in a sense dif- ferent from its ordinary acceptation, it will refer the question to the Jury. Simpson u. Margitson, 35 Leg. Obs. 172. 3 Warren v. Wheeler, 8 Met. 97. Nor is parol evidence admissible to prove how a written contract was understood by either of the parties, in an action upon it at law, in the absence of any fraud. Bigelow v. Collamore, 6 Cush. 226 ; Harper v. Gilbert, Id. 417. [Parol evidence is not admissible to show in what sense the recorded vote of the directors of a corporation was understood by a director. Gould v. Norfolk Lead Co. 9 Cush. 338, 345.] 388 LAW OF EVIDENCE. FPART II. they have generally, in respect to the subject-matter, as, by the known usage of trade, or the like, acquired a peculiar sense, distinct from the popular sense of the same words ; or unless the context evidently points out that, in the particular instance, and in order to effectuate the immediate intention of the parties, it should be understood in some other and peculiar sense. But where the instrument consists partly of a printed formula, and partly of written words, if there is any reasonable doubt of the meaning of the whole, the writ- ten words, dixe entitled to have greater effect in the interpreta- tion than those which are printed ; they being the immediate language and terms selected by the parties themselves for the expression of their meaning, while the printed formula is more general in its nature, applying equally to their case and to that of all other contracting parties, on similar subjects and occasions.^ § 279. The rule under consideration is applied only in suits between the parties to the instrument ; as they alone are to blame if the writing contains what was not intended, or omits that which it should have contained. It cannot affeqt third persons ; who, if it were otherwise, might be prejudiced by things recited in the writings, contrary to the truth, through the ignorance, carelessness, or fraud of the parties ; and who, therefore, ought not to be precluded from proving the truth, however contradictory to the written statements of others.^ § 280. It is almost superfluous to add, that the rule does not' exclude the testimony of experts, to aid the Court in reading the instrument. If the characters are difficult to be 1 Per Ld. Ellenborough, in fiobertson v. French, 4 East, 135, 136. See Wigram on the Interpretation of Wills, pp. 15, 16, and cases there cited. See also Booi-man v. Johnston, 12 ,Wend. 573 ; Taylor v. Briggs, 2 C. & P. 525 ; Alsager v. St. Katherine's Dock Co. 14 M. & W. 799, per Parke, B. 2 Supra, §§ 23, 171, 204; 1 Poth. Obi. by Evans, P. 4, c. 2, art. 3, n. [766]; 2 Stark. Ev. 575 ; Krider u. Lafferty, 1 Wharf. 303, 314, per Ken- nedy, J. ; Reynolds v. Magness, 2 Iredell, K. 26 ; [Edgerly ti. Emerson, 3 Foster, 555. See Langdon v. Langdon, 4 Gray, 186.] CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 389 deciphered, or the language, whether technical, or local and provincial, or altogether foreign, is not understood by the Court, the evidence of persons skilled in deciphering writ- ings, or who understood the language in which the instru- ment is written, or the technical or local meaning of the terms employed, is admissible, to declare what are the char- acters, or to translate the instrument, or to testify to the proper meaning of the particular words.-' Thus the words " inhabitant," 2 « level," ^ "thousands,"* "fur,"^ « freight," « 1 Wigram oil the Interpretation of Wills, p. 48 ; 2 Stark. Evid. 565, 566 ; Biroli V. Depeyster, 1 Stark. R. 210, and cases there cited ; Infra, §§ 292, 440, note; Sheldon v. Benham, 4 Hill, N. Y. Rep. 123 ; [Stone v. Hubbard, 7 Cush, 595, 597.J 2 The King v. Mashiter, 6 Ad. & El. 153. 3 Clayton v. Gregson, 5 Ad. & El. 302 ; 4 N. & M. 602, S. C. * Smith V. Wilson, 3 B. & Ad. 728. The doctrine of the text was more fully expounded by Shaw, C. J., in Brown v. Brown, 8 Met 576, 577, as follows : " The meaning of words, and the grammatical construction of the English language, so far as they are established by the rules and usages of the language, are prima facie., matter of law, to be construed and passed upon by the Court. But language may be ambiguous, and used in different ■ senses ; or general words, in particular trades and branches of business — as among merchants, for instance — may be used in a new, peculiar, or tech- nical sense ; and, therefore, in a few instances, evidence may be received, from those who are conversant with such branches of business, and such technical or peculiar use of language, to explain and illustrate it One of the strongest of these, perhaps, among the recent cases, is the case of Smith V. Wilson, 3 Barn. & Adolph. 728, where it was held that, in an action on a lease of an estate including a rabbit warren, evidence of usage was admissi- ble, to show that the words, ' thousand of rabbits ' were understood to mean one hundred dozen, that is, twelve hundred. But the decision was placed on the ground that the words 'hundred,' 'thousand,' and the like, were not understood, when applied to particular subjects, to mean that number of units ; that the definition was not fixed by law, and therefore was open to such proof of usage. Though it is exceedingly difficult to draw the pre- cise line of distinction, yet it is manifest that such evidence can be admitted 5 Astor u. The Union Ins. Co. 7 Cowen, 202. 6 Peisch V. Dickson, 1 Mason, 11, 12. [Evidence of the character of the plaintifis' freighting business for several years previous, is admissible to show that the defendant, in contracting to transport " their freight," did not mean to include hay. Koyes v. Canfield, 1 Williams, 79.] 33* 390 LAW OF EVIDENCE. [PART II. and many others, have been interpreted, arid their peculiar meaning, when used in connection with the subject-matter of the transaction, has been fixed, by parol evidence of the sense in which they are usually received, when employed in cases similar to the case at bar. And so of the meaning of the phrase, " duly honored," ^ when applied to a bill of ex- change ; and of the compression, " in the month of October," ^ when applied to the time when a vessel was to sail ; and many others of the like kind. If the question arises from the obscurity 6f the writing itself, it is determined by the Court alone ; ^ but questions of custom, usage, and actual intention and meaning derived therefrom are for the Jury.* But where the words have a known legal meaning, such, for example, as measures of quantity fixed by statute, parol evidence, that the parties intended to use them in a sense different from the legal meaning, though it were still the customary and popular sense, is not admissible.^ only in a few cases like the above. Were it otherwise, written instruments, instead of importing certainty and verity, as being the sole repository of the will, intent, and purposes of the parties, to be construed by the rules of law, might be made to speak a very different language by the aid of parol evidence. [See also Attorney-General v. Clapham, 31 Eng. Law & Eq. 142.] 1 Lucas V. Groning, 7 Taunt. 164. 2 Chaurand u. Angerstien, Peake's Cas. 43. See also Peisch v. Dickson, 1 Mason, 12 ; Doe v. Benson, 4 B. & Aid. 588 ; United States v. Breed, 1 Suran. 159 ; Taylor v. Briggs, 2 C. & P. 525. [And to explain such an ex- pression as " Regular turns of loading " in an action on a contract for load- ing coals at Newcastle. Leideman v. Schultz, 24 Eng. Law & Eq. 805. Theological works of the period referred to are admissible to show the mean- ing of the words "Protestant dissenters," in a trust deed. Drummond v. Attorney-General, 2 lb. 15 ; Infra, § 295.] 3 Reraon v. Hayward, 2 Ad. & El. 666 ; Crofts v. Marshall, 7 C. & P. 597; Infra, § 300. But see Sheldon v. Benham, 4 Hill, (N. Y.) Rep. 123. 4 Lucas V. Groning, 7 Taunt. 164, 167, 168 ; Birch v. Depeyster, 1 Stark. R. 210; Paley on Agency, (by Lloyd,) p. 198; Hutchinson v. Bowker, 5 M. & W. 535. 5 Smith V. Wilson, 3 B. & Ad. 728, per Lord Tenterden ; Hookin i). Cooke, 4 T. R. 314 ; Att.-Gen. v. The Cast Plate Glass Co. 1 Anstr. 39 ; Sleght V. Rhinelander, 1 Johns. 192; Frith v. Barker, 2 Johns. 335; Stoever 0. Whitman, 9 Binn. 417 ; Henry v. Risk, 1 Dall. 465 ; Doe v. Lea, 11 East, CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 391 § 281. The reason and policy of the rale will be further seen, by adverting to some of the cases in which parol evi- dence has been rejected. Thus, where a policy of insurance was effected on goods, " in ship or ships from Surinam to London," parol evidence was held inadmissible to show that a particular 'ship in the fleet, which was lost, was verbally excepted at the time of the contract.' So, where a policy described the two termini of the voyage, parol evidence was hel^ inadmissible to prove that the risk was not to com- mence until the vessel reached an intermediate place.^ So, where the instrument purported to be an absolute engage- ment to pay at a specified day, parol evidence of an oral agreement at the same time that the payment should be . prolonged,^ or depend upon a contingency,* or be made out 312 ; Caine v. Horsefall, 2 C. & K. 349. Conversations between the parties / at the time of making a contract, are competent evidence, as a part of the I res gesta, to show the sense which they attached to a particular term used in \ the contract. Gray v. Harper, 1 Story, R. 574. Where a sold note run thus : — "18 pockets of hops, at 100s.," parol evidence was held admissible to show that 100s. meant the price per hundred weight. Spicer v. Cooper, 1 G. & D. 52. [Parol evidence is inadmissible to show that the parties to a deed understood " half" of a rectangular lot to mean a less quantity. But- ler V. Gale, 1 Williams, 739.] 1 Weston V. Eames, 1 Taunt. 115. 2 Kaines v. Knightly, Skin. 54 ; Leslie v. De la Torre, cited 12 East, 358. [So where a policy was issued by a mutual insurance company, and made in terms subject to the conditions of its by-laws, and the by-laws provided that any policy issued upon property previously insured, should be void un- less the previous insurance should be expressed in the policy when issued, parol evidence is inadmissible to show that the fact of the existence of such prior insurance, and of the understanding of the insured that it should re- main in force, was made known to the defendant company, and assented to by them, prior to the execution and delivery of the policy. Barrett v. Union Mut. Five Ins. Co. 7 Cush. 175, 180; Lee v. Howard, &c. Co. 3 Gray, 583, 592. So where a bill of lading expressly stipulated that certain goods named therein may be carried on deck, parol evidence is inadmissible to show that the shipper agreed and assented at the time of the stowage, that an addi- tional portion of the goods should be carried on deck. Sayward u. Stevens, 3 Gray, 97, 102.] 3 Hoare v. Graham, 3 Campb. 57; Hanson v. Stetson, 5 Pick. 506 ; Spring V. Lovett, 11 Pick. 417. 4 Rawson v. Walker, 1 Stark. R. 361 ; Foster v. Jolly, 1 C. M. & R. 703 ; Hunt V. Adams, 7 Mass. 518; Free v. Hawkins, 8 Taunt. 92 ; Thompson v. 392 LAW OP BVIBENCB. [PAKT II. of a particular fund, has been rejected.^ Where a written agreement of partnership was unlimited as to the time of commencement, parol evidence, that it was at the same time verbally agreed that the partnership should not com- mence until a future day, was held inadmissible.^ So, where, in assumpsit for use and occupation, upon a writ- ten memorandum of lease, at a certain rent, pajol evidence was offered by the plaintiff of an agreement at the same time to pay a further sum, being the ground rent of^the premises, to the ground landlord, it was rejected.^ So, where, in a written contract of sale of a ship, the ship was Ketchum, 8 Johns. 189; Woodbridge v. Spooner, 3 B. & Aid. 233; Mose- ley V. Hanford, 10 B. & C. 729 ; Erwin v. Saunders, 1 Cowen, 249. [See Allen V. Furbish, 4 Gray, 504, 506, in which some of the Massachusetts cases, 1 showing that parol evidence is inadmissible to annex a condition to an abso- llute promise in writing in the form of a promissory note, promising to pay a certain sum of money on a certain day named, are reviewed by Dewey, J., and the principle reaffirmed. Hollenbeck v. Shutts, 1 Gray, 431 ; Billings V. Billings, 10 Cush. 178, 182 ; Southwick v. Hapgood, lb. 119, 121 ; Ridg- way V. Bowman, 7 Cush. 268, 271. Parol evidence is not admissible to show that a promissory note was intended for a receipt. City Bank v. Adams, 45 Maine, 455.] 1 Campbell v. Hodgson, 1 Gow. R. 74. 3 DIx V. Otis, 5 Pick. 38. 3 Preston v. Merceau, 2 W. Bl. 1249. A similar decision was made in The Isabella, 2 Rob. Adm. 241, and in "White v. Wilson, 2 B. & P. 116, where seamen's wages were claimed in addition to the sum named in the shipping articles. The English statutes not only require such contracts to be in writing, but declare that the articles shall be conclusive upon the par- ties. The statute of the United States is equally imperatite as to the writ- ing, but omits the latter provision as to its conclusiveness. But the decisions in both the cases just cited, rest upon the general rule stated in the text, which is a doctrine of general jurisprudence, and not upon the mere posi- tive enactments of the statutes. See 2 Rob. Adm. 243 ; Bogert v. Cauman, Anthon's R. 70. The American Courts adopt the same doctrine, both on general principles, and as agreeable to the intent of the Act of Congress reg- ulating the merchant service. See Abbott on Shipping, (by Story,) p. 434, note ; Bartlett v. Wyman, 14 Johns. 260 ; Johnson v. Dalton, 1 Cowen R. 543 ; [Page v. Sheffield, 2 Curtis, C. C. 377.] The same rule is applied in regard to the Statute of Frauds. See 1 1 Mass, 31. See further. Rich v. Jack- son, 4 Bro. Ch. R. 514 ; Brigham v. Rogers, 17 Mass. 571 ; Flinn v. Calow, 1 M. & G. 589. [So an oral promise to discharge an incumbrance not created by himself, made by a grantor to a grantee, cannot be shown to have been made at the same time and for the same consideration, as a deed containing cove- CHAP. XV,] ADMISSIBILITY OF PAKOL BVIDENOB. 393 particularly described, it was held that parol evidence of a further descriptive representation, made prior to the time of sale, was not admissible to charge the vendor, without proof of actual fraud ; all previous conversation being merged in the written contract.^ So, where a contract was for the sale and delivery of " Ware potatoes," of which there were several kinds or qualities ; parol evidence was held not admissible to show that the contract was in fact for the best of those kinds.^ Where one signed a premium note in his own name, parol evidence was held inadmissible to show that he signed it as the agent of the defendant, on whose property he had caused insurance to be effected by the plain- tiff, at the defendant's request, and who was sued as the promisor in the note, made by his agent.^ So, where an nants of special warranty only. Howe v. Walker, 4 Gray, 318 ; Goodrich i: Longley, lb. 379, 383. Nor can a limited warranty in a deed be extended to a general warranty by proof of a parol agreement to that effect, made at the time of the delivery of the deed. Raymond v. Raymond, 10 Gush. 134, 141 ; Button V. Gerrish, 9 lb. 89. Nor can it be shown by parol that the name of the grantee in a deed was inserted therein by mistake of the scrivener, in \ place of another person who was intended as the grantee, and who afterwards entered upon and occupied the land. Crawford v. Spencer, 8 Gush. 418. Where a lease, under seal, of coal lands, said nothing as to the quantity to be mined, but established the price per bushel for all that was mined, it can- not be shown by parol that the lessee at the time of signing the lease, prom- ised to mine all he could dispose of. Lyon v. Miller, 24 Penn. State R. 392 ; Kennedy v. Erie, &c. Plank Road Co. 25 lb. 224 ; Chase v. Jewett, 37 Maine, 351. " Furring for the whole house," in a written building contract, cannot be shown by parol to mean only usual furring. Herrick v. Noble, 1 Wil- liams, 1. Nor can it be shown by parol that arv assignment of store goods was intended to include the " store books." Taylor w. Sayre, 4 Zabr. 647.] 1 Pickering v. Dowson, 4 Taunt. 779. See also Powell v. Edmunds, 12 East, 6 ; Pender v. Fobes, 1 Dev. & Bat. 250 ; Wright v. Crookes, 1 Scott, N. R. 64. 2 Smith V. Jeffreys, 15 M. & W. 561. 3 Stackpole v. Arnold, 11 Mass. 27. See also Hunt v. Adams, 7 Mass. 518; Shankland v. City of Washington, 5 Peters, 394; [Myriek v. Dame, 9 Cush. 248, 254.] But parol evidence is admissible to show that one of several promisors signed as the surety of another. Carpenter v. King, 9 Met. 511; McGee e. Prouty, Id. 547; [Davis v. Barrington, 10 Foster, 517. See Arnold v. Cessna, 25 Penn. State R. 84. (So as between suc- cessive indorsers, that they were in fact co-sureties. Weston v. Chamber- 894 BAW OF EVIDENCE. [pART II, agent let a ship on hire, describing himself in the charter- party as " owner," it was held, in an action upon the charter- party, brought by the true owner, that parol evidence was not admissible to show that the plaintiff, and not the agent, was the real owner of the ship.^ Even the subsequent con- fession of the party, as to the true intent and construction of the title deed, under which he claims, will be rejected.^ The books abound in cases of the application of this rule ; but these are deemed sufficient to illustrate its spirit and mean- ing, which is the extent of our present design. § 282. From the examples given in the two preceding sec- tions, it is thus apparent that the rule excludes only parol evidence of the langucLge of the parties, contradicting, varying, or adding to that which is contained in the written instru- ment; and this because they have themselves committed to writing all which they deemed necessary to give full expres- sion to their meaning, and because of the mischiefs which would result, if verbal testimony were in such cases received. But where the agreement in writing is expressed in short and incomplete terms, parol evidence is admissible to explain that which is per se unintelligible, such explanation not being lain, 7 Cush. 404) ; Eiley v. Gerrish, 9 lb. 104. And an agreement between two sureties on a bond, that one of them shall not, as between themselves, be liable in consequence of his becoming such a surety, may be proved by parol. Barry v. Ransom, 2 Kernan, 462. But see Norton v. Coons, 2 Selden, 33.] And where a special agreement was made in writing for the sale of goods from A to B, the latter being in part the agent of C, whose name did not appear in the transaction ; it was held, that C might maintain an action in his own name against A for the breach of this contract, and that ■ parol evidence was admissible to prove, that B acted merely as the agent of C, and for his exclusive benefit. Hubbert v. Borden, 6 Wharton's K. 79. 1 Humble v. Hunter, 12 Ad. & El. 310, N. S. And see Lucas u. De la Cour, 1 M. & S. 249 ; Bobson v. Drummond, 2 B. & Ad. 303. 2 Paine v. Mclntire, 1 Mass. 69, as explained in 10 Mass. 461. See also Townsend v. Weld, 8 Mass. 146. [Where the plaintiff declares upon and puts in evidence a written contract as his ground of action, he cannot put in evidence the oral declarations of the defendant as to his supposed lia- bility. Goodell V. Smith, 9 Cush. 592, 594.] CHAP. XV.] ADMISSIBILITY OF PAEOL EVIDENCE. 395 inconsistent with the written terms.^ It is also to be kept in mind, that though the first question in all cases of contract is one of interpretation and intention, yet the question, as we have already remarked, is not what the parties may have secretly and in fact intended, but what meaning did they intend to convey, by the words they employed in the virritten instrument. . To ascertain the meaning of these word^, it is obvious that parol evidence of extraneous facts and circum- stances may in some cases be admitted to a very great extent, without in anywise infringing the spirit of the rule under consideration. These cases, which in truth are not exceptions to the rule, but on the contrary are out of the range of its operation, we shall now proceed to consider. § 283. It is in the first place to be observed, that the rule does not restrict the Court to the perusal of a single instru- ment or paper; for, while the controversy is between the original parties, or their representatives, all their contempo- raneous writings, relating to the same subject-matter, are admissible in evidence.*^ § 284. It is in the next place to be noted, that the rule is not infringed by the admission of parol evidence, showing that the instrument Is altogether void, or that it never had any legal existence or binding force ; either by reason of fraud, or for want of due execution and delivery, or for the illegality of the subject-matter. This qualification applies to all contracts, whether under seal or not. The want of con- sideration may also be proved to show that the agreement 1 Sweet V. Lee, 3 Man. & Gr. 452 ; [Webster v. Hodgkins, 6 Foster, 128. Where there is an acknowledgment of indebtedness, by making this mem- orandum : " I O U the sum of $160, which I shall pay on demand to you," parol evidence is admissible to show the person to whom it is addressed. Kinney v. Flynn, 2 K. I. 319.] 2 Leeds ». Lancashire, 2 Campb. 205 ; Hartley v. Wilkinson, 4 Campb. 127; Stone v. Metcalf, 1 Stark. R. 53; Bowerbank v. Monteiro, 4 Taunt. 846, per Gibbs, J. ; Hunt». Livermore, 5 Pick. 395 ; Davlin v. Hill, 2 Fairf. 434 ; Couch v. Meeker, 2 Conn. 302 ; Lee v. Dick, 10 Pet. 482 ; Bell v. Bruen, 17 Pet. 161 ; 1 Howard, (S. C.) R. 169, 183, S. C. 396 LAW OF EVIDENCE. [PAET H. is not binding ; unless it is either under seal, which is con- clusive evidence of a sufficient consideration,^ or is a nego- tiable instrument in the hands of an innocent indorsee.^ Frcmd, practised by the party seeking the remedy, upon him against whom it is sought, and in that which is the subject- matter of the action or claim, is universally held fatal to his title. " The covin," says Lord Coke, " doth suffocate the right." The foundation of the claim, whether it be a record, or a deed, or a writing without seal, is of no importance ; they being alike void, if obtained by fraud.^ Parol evidence may also be offered to show that the contract was made for the furtherance of objects forbidden by law^ whether it be by statute, or by an express rule of the Common Law, or by the general policy of the law ; or that the writing was ob- tained hj felony,^ or by duress ;^ or that the party was inca- pable of binding himself, either by reason of some legal impediment, such as infancy or coverture,'' or from actual 1 Supra, §§ 19, 22 ; Infra, § 303. 2 Supra, §§ 189, 190. 3 2 Stark. Evid. 340; Tait on Evid. 327, 328; Chitty on Contr. 527 a; Buckler v. MiUerd, 2 Ventr. 107; Filmer v. Gott, 4 Bro. P. C. 230; Taylor V. Weld, 5 Mass. 116, per Sedgwick, J.; Franchot v. Leach, 5 Cowen, 508; Dorr V. Munsell, 13 Johns. 431 ; Morton v. Chandler, 8 Greenl. 9 ; Com- monwealth V. Ballard, 9 Mass. 270; Scott u. Burton, 2 Ashm. 312; [Allen V. Furbish, 4 Gray, 504, 509; Presoott v. Wright, lb. 461.] * CoUins !). JBlantern, 2 Wils. 347; 1 Smith's Leading Cas. 154, 168, note, and cases there cited. If the contract is by deed, the illegality must be specially pleaded. Whelpdale's case, 5 Co. 119; Mestayer v. Biggs, 4 Tyrw. 471. But the rule in the text applies to such cases, as well as to those arising under the general issue. See also Biggs v. Lawrence, 3 T. R. 454 ; [see Corbin v. Adams, 6 Gush. 96, for queries as to Biggs v. Lawrence;] Waymell v. Keed, 5 T. R. 600; Doe v. Ford, 3 Ad. & El. 649 ; Catlin v. Bell, 4 Campb. 183 ; Commonwealths Pease, 16 Mass. 91 ; Norman v. Cole, 3 Esp. 253 ; Sinclair v. Stevenson, 1 C. & P. 582 ; Chitty on Contr. 519- 527. 5 2B. & P. 471, per Heath, J. 6 2 Inst. 482, 483 ; 5 Com. Dig. Pleader, 2 W. 18-23 ; StoufFer v. Lat- shaw, 2 Watts, 165 ; Thompson v. Lockwood, 15 Johns. 256 ; 2 Stark. Evid. 274. 7 2 Stark. Evid. 274; Anon. 12 Mod. 609; Van Valkenburg v. Rouk, 12 Johns. 338 ; 2 Inst. 482, 483 ; 6 Dig. ul. sup. CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 397 imbecility or want of reason,^ whether it be by means of per- manent idiocy or insanity, or from a temporary cause such as drunkenness ; ^ or that the instrument came into the hands of the plaintiff without any absolute and final delivery,^ by the obligor or party charged. § 284 a. Nor does the rule apply, in cases where the origi- nal contract was verbal and entire, and a part only of it was reduced to writing. Thus, where upon an adjustment of accounts, the debtor conveyed certain real estate to the cred- itor at an assumed value, which was greater than the amount due, and took the creditor's promissory note for the balance ; it being verbally agreed that the real estate should be sold, and the proceeds accounted for by the grantee, and that the deficiency, if any, below the estimated value, should be made good by the grantor ; which agreement the grantor after- wards acknowledged in writing; — it was held, in an action brought by the latter to recover the contents of the note, that the whole agreement was admissible in evidence on the part of the defendant ; and that, upon the proof that the sale of the land produced less than the estimated value, the deficiency should be deducted from the amount due upon the note.* § 285. Neither is this rule infringed by the introduction of parol evidence, contradicting or explaining the instrument in some of its recitals of facts, where such recitals do not, on other principles, estop the party to . deny them ; and accord- 1 2 Kent, Comm. 450-453, and cases there cited ; Webster v. Woodford, 3 Day, 90; Mitchell n. Kingman, 5 Pick. 431 ; Rice v. Peet, 15 Johns. 503. 2 See Barrett v. Buxton, 2 Aik. 167, where this point is ably examined by Prentiss, J.; Seymour v. Delanoy, 3 Cowen, 518; 1 Story's Eq. Jur. § 231, note (2) ; Wigglesworth v. Steers, 1 Hen. & Munf. 70 ; Prentice v. Achorn, 2 Paige, 31. 3 Clark V. Giiford, 10 Wend. 310 ; United States v. Leffler, 11 Peters, 86 ; Jackson d. Titus v. Myers, 11 Wend. 533, 536 ; Couch v. Meeker, 2 Conn. R. 302. [Where an instrument was signed with an understanding that it was not to be delivered except upon the performance of a certain condition, this may be shown by parol. Black v. Lamb, 1 Beasley, 108.] 4 Lewis V. Gray, 1 Mass. 297 ; Lapham v. Whipple, 8 Met. 59. [Shef- VOL. I. 34 398 LAW OP EVIDENCE. [PART II. ingly in some cases such evidence is received.^ Thus, in a settlement case, where the value of an estate, upon which the settlement was gained, was in question, evidence of a greater sum paid than was recited in the deed, was held admissible.2 So, to show that the lands, described in the deed as in one parish, were in fact situated in another.^ So, to show, that at the time of entering into a contract of service in a particular employment, there was a further agreement to pay a sum of money as a premium, for teaching the party the trade, whereby an apprenticeship was intended ; and that the whole was therefore void for want of a stamp, and so no settlement was gained.* So, to contradict the recital of the date of a deed ; as, for example, by proving that a charter- party, dated February 6th, conditioned to sail on or before February 12th, was not executed till after the latter day, and that therefore the condition was dispensed with.^ So, to show that the reference, in a codicil to a will of 1833, was a mistake, that wiU being supposed to be destroyed ; and that the will of 1837 was intended.^ And on the other hand, where a written guaranty was expressed to be " in consider- ation of your having discounted V.'s note," and it was ob- jected that it was for a past consideration, and therefore void, explanatory parol evidence was held admissible, to show that the discount was contemporaneous with the guaranty.^ So where the guaranty was " in consideration field V. Page, Sprague's Decisions, 285 ; Harris v. Forman, 5 Com. B. Rep. N. S. 1.] 1 2 Poth. on Obi. by Evans, pp. 181, 182. 2 Rex V. Scammonden, 3 T. R. 474. See also Doe v. Ford, 3 Ad. & El. 649. 3 Rex V. Wickhan, 2 Ad. & El. 517. [The plan or map of a railroad, filed with the location, and constituting part of the description, may be referred to, to explain the written location, but not to vary or modify it. Hazen v. Boston & M. R. R. 2 Gray, 574, 579 ; Boston & P. R. R. v. Mid- land R. R. 1 Gray, 340.] * Rex V. Laindon, 8 T. R. 379. [Creamer v. Stephenson, 15 Md. 211.] 5 Hall V. Cazenove, 4 East, 477. See further, Tait on Evid. p. SS2, 333- 336 ; Infra, § 304. 6 Quincey v. Quincey, 11 Jur. 111. 7 Ex parte Flight, 35 Leg. Obs. 240. And see Haigh v. Brooks, 10 Ad. & El. 309 ; Butcher v. Stuart, 11 M. & W. 857. CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 399 of your having this day advanced to V. D.," similar evi- dence was held admissible.^ It is also admissible to show when a written promise, without date, w^s in fact made.^ Evidence may also be given of a consideration, not men- tioned in a deed, provided it be not inconsistent with the consideration expressed in it.^ § 286. As it is a leading rule, in regard to written instru- ments, that they are to be interpreted according to their sub- ject-matter, it is obvious that parol or verbal testimony must be resorted to, in order to ascertain the nature and qualities of the subject,^ to which the instrument refers. Evidence, which is calculated to explain the subject of an instrument, is essen- tially different in its character from evidence of verbal com- munications respecting it. Whatever, therefore, indicates the nature of the subject, is a just medium of interpretation of the language and meaning of the parties in relation to it, and is also a just foundation for giving the instrument an inter- pretation, when considered relatively, different from that which it would receive if considered in the abstract. Thus, where certain premises were leased, including a yard, described by metes and bounds, and the question was, whether a cellar under the yard was or was not included in the lease ; verbal evidence was held admissible to show that, at the time of the lease, the cellar was in the occupancy of another tenant, and therefore, that it could not have been intended by the parties that it should pass by the lease.^ So, where a house, or a mill, or a factory is conveyed, eo nomine, and the question is, 1 Goldshede <;. Swan, 85 Leg. Obs. 203 ; 1 Exoh. R. 154. This case has been the subject of some animated discussion in England. See 12 Jur. 22, 94, 102. 2 Lobb V. Stanley, 5 Ad. & El. 574, N. S. 3 Clifford V. Turrill, 9 Jur. 633. * In the term " subject," in this connection, text-writers include every- thing to which the instrument relates, as well as the person who is the other contracting party, or who is the object of the provision, whether it be by will or deed. Phil. & Am. on Evid. 732, n. (1.) s 2 Poth. on Obi. by Evans, p. 185 ; Doe d. Ereeland v. Burt, 1 T. R. 701 ; Elfe V. Gadsden, 2 Rich. 373 ; Brown v. Slater, 16 Conn. 192; Milbourn v. Ewart, 5 T. R. 381, 385 ; iln/ra, §§ 401, 402, and notes. 400 LAW OF BVIDENCE. [PAET II. as to what was part and parcel thereof, and so passed by. the deed, parol evidence to this point is adnaitted.^ § 287. Indeed, there is no material difference of principle in the rules of interpretation between wills and contracts, except what naturally arises from the different circumstances of the parties. The object, in both cases, is the same, namely, to discover the intention. And, to do this, the Court may, in either case, put themselves in the place of the party, and then see how the terms of the instrument affect the property or subject-matter.2 "With this view, evidence must be admis- 1 Eopps V. Barker, 4 Pick. 239 ; Farrar v. Stackpole, 6 Greenl. 154 ; Infra, § 287, cases in note. But where the language of the deed was broad enough plainly to include a garden, together with the house, it was held, that the ■written paper of conditions of sale, excepting the garden, was inadmissible to contradict the deed. Doe v. Wheeler, 4 P. & D. 273 ; [Goodrich v. Longley, 1 Gray, 615, 618.] 2 Doe V. Martin, 1 N. & M. 524 ; 4 B. & Ad. 771, 785, S. C. per Park, J. ; Holstein v. Jumpson, 4 Esp. 189 ; Brown v. Thorndyke, 15 Pick. 400 ; Phil. & Am. on Evid. 736 ; 2 Phil. Evid. 277. The rules of interpretation of Wills, in Vice-Chancellor Wigram's admirable treatise on that subject, may be safely applied, mutalo nomine, to all other private instruments. They are contained in seven propositions, as the result both of principle and au- thority, and are thus expressed ; — I. A testator is always presumed to use the ■words, in which he expresses himself, according to their strict and primary acceptation, unless, from the context of the will, it appears that he has used them in a different sense ; in which case, the sense in which he thus appears to have used them will be the sense in which they are to be construed, II. Where there is nothing in the context of a will, from which it is apparent that a testator has used the words, in which he has expressed himself, in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction, that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense b^ tendered. III. Where there is nothing in the context of a ■will, from which it is apparent that a testator has used the words, in which he has expressed himself, in any other than their strict and primary sense, but his words so interpreted are insensible with reference to extrinsic circumstances, a Court of Law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense, of CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 401 sible, of all the circumstances surrounding the author of the instrument.^ In the simplest case that can be put, namely, which, -with reference to these circumstances, they are capable. IV. Where the characters, in which a will is written, are difficult to be deciphered, or the language of the will is not understood by the Court, the evidence of persons skilled in deciphering writing, or who understand the language in which the will is written, is admissible to declare what the characters are, or to inform the Court of the proper meaning of the words. V. For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a Court may inquire into every material fact relating to the person, who claims to be interested under the will, and to the property, which is claimed as the subject of disposition, and to the circumstances of the testator and of his family and affairs ; for the purpose of enabling the Court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. The same (it is conceived) is true of every other disputed point, respecting which it can be shown, that a knowl- edge of extrinsic facts can in any way be made ancillary to the right inter- pretation of a testator's words. VI. Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain special cases — see Proposition VII.) will be void for uncertainty. VII. Notwithstanding the rule of law, which makes a will void for uncertainty, where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning. Courts of Law, in certain special cases, admit extrinsic evidence of intention, to make certain the person or thing intended, where the description in the will is insufficient for the purpose. These cases may be thus defined : where the object of a testator's bounty, or the subject of disposition (i. e. person or thing intended) is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator." See Wigram on the Admission 'of Extrinsic Evidence in aid of the Interpretation of Wills, 1 The propriety of admitting such evidence, in order to ascertain the meaning of doubtful words or expressions in a will, is expressly conceded by Marshall, C. J., in Smith v. Bell, 6 Peters, 75. See also Wooster v. Butler, 13 Conn. 317 ; Baldwin v. Carter, 17 Conn. 201 ; Brown v. Slater, 16 Conn. 192 ; Marshall's Appeal, 2 Barr, 388 ; Stoner's Appeal, Id. 428 ; The Great Northern Kailw. Co. v. Harrison, 16 Jur. 565 ; 14 Eng. L. & Eq. R. 195, per Parke, B. If letters are offered against a party, it seems he may read his immediate replies ; Roe u. Day, 7 C. & P. 705 ; and may prove a previous conversation with the party to show the motive and intention in writing them. Reay v. Richardson, 2 C. M. & R. 422 ; Supra, § 197. 34* 402 LAW OF EVIDENCE. [PART II. that -of an instrument appearing on the face of it to be per- fectly intelligible, inquiry must be made for a subject-matter to satisfy "the description. If, in the conveyance of an estate, it is designated as Blackacre, parol evidence must be admit- ted to show what field is known by that name. Upon the same principle, where there is a devise of an estate purchased of A, or of a farm in the occupation of B, it must be shown by extrinsic evidence what estate it was that was purchased of A, or what farm was in the occupation of B, before it can be known what is devised.^ So, if a contract in writing is made, for extending the time of payment of " certain notes," held by one party against the other, parol evidence is admis- sible to show what notes were so held and intended.^ § 288. It is only in this mode that parol evidence is ad- missible, (as is sometimes, but not very accurately said,) to explain written instruments; namely, by showing the situa- tion of the party in all his relations to persons and things around him, or, as elsewhere expressed, by proof of the sur- rounding circumstances. Thus, if the language of the in- strument is applicable to several persons, to several parcels of land, to several species of goods, to several monuments or p. 11-14. See also Guy v. Sharp, 1 M. & K. 602, per Ld. Brougham, C. [JPost, Vol. 2, § 671. For Mr. Powell's rules for the construction of devises, see 2d Pow. on Dev. by Jarman, p. 5-11 ; Cruise's Dig. (Greenleafa edi- tion,) tit. 38, ch. 9, § 1-15, and notes; 2d Greenleaf's ed. (1857,) &c. Vol. 3, p. 172-179, and notes.] 1 Sanford v. Raikes, 1 Mer. 646, 653, per Sir W. Grant ; Doe d. Preedy V. Horton, 4 Ad. & El. 76, 81, per Coleridge, J. ; Doe v. Martin, 4 B. & Ad. 771, per Parke, J. " Whether parcel, or not, of the thing demised, is always matter of evidence." Per Buller, J., in Doe v. Burt, 1 T. R. 704, R. aec. in Doe V. E. of Jersey, 3 B. & C. 870 ; Doe v. Chichester, 4 Dow's P. C. 65 ; 2 Stark. Evid. 558-561; [_lnfra, § 401, and notes. So, a deed of land known by the name of the " mill spot," may be explained by parol evidence of what " the mill spot " was commonly reputed, at and before the time of the execution of the deed, to include. Woods v. Sawin, 4 Gray, 322. So, an agreement in writing to convey " the wharf and flats occupied by A, and owned by B," may be applied to the subject-matter by parol. Gerrish V. Towne, 3 Gray, 82, 88. So, " the Schermerhorn britjk-yard." Seaman v. Hogeboom, 21 Barb. 398. See also Russel v. Werntz, 24 Penn. State R. 837.] s Bell V. Martin, 3 Harrison, K. 167. CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 403 boundaries, to several writings;^ or the terms be vague and general, or have divers meanings, as " household furniture," " stock," " freight," " factory prices," and the like ; ^ or in a will, the words " child," " children," " grandchildren," " son," " family," or " nearest relations," are employed ; ^ in all these and the like cases, parol evidence is admissible of any extrin- sic circumstcmces, tending to show what person or persons, or what things, were intended by the party, or to ascertain his meaning in any other respect ; * and this, without any 1 Miller v. Travers, 8 Bing. 244 ; Storer v. Freeman, 10 Mass. 435 ; Waterman v. Johnson, 13 Pick. 261 ; Hodges v. Horsfall, 1 Eus. & My. 116; Dillon v. Harris, 4 Bligh, N. S. 843, 356; Parka v. The Gen. Int. Aasur. Co. 5 Pick. 34 ; Coitu. Starkweather, 8 Conn. 289 ; Blalft v. Doherty, 5 Wheaton, 359 ; 2 Stark. Evid. 558-561. f Storer v. Elliot Fire Insurance Co. 45 Maine, 175.] 2 Peisch V. Dickson, 1 Mason, 10-12, per Story, J. ; Pratt w; Jackson, 1 Bro. P. C. 222; Kelly v. Powlet, Ambl. 610 ; Bunn v. Winthrop, 1 Johns. Ch. 329; Le Farrant v. Spencer, 1 Vea. 97; Colpoys v. Colpoys, Jacob's R. 451 ; Wigram on Wills, p. 64 ; Goblet v. Beechey, 3 Sim. 24 ; Barrett V. Allen, 1 Wilcox, 426 ; Avery v, Stewart, 2 Conn. 69 ; Williams v. Gilman, 3 Greenl. 276. 3 Blackwell v. Bull, 1 Keen, 176; Wylde's caae, 6 Co. 16; Brown v. Thorndike, 15 Pick. 400 ; Richardson v. Wataon, B. & Ad. 787. See also Wigram on Willa, p. 58 ; Doe v. Joinville, 3 East, 172 ; Green v. Howard, 1 Bro. Ch. R. 32 ; Leigh v. Leigh, 15 Ves. 92 ; Beachcroft v. Beachoroft, 1 Madd. E. 430. 4 Goodings V. Goodings, 1 Ves. 231 ; Jeacock v. Falkener, 1 Bro. Ch. R. 295; Fonnereau ». Poyntz, Id. 473; Machell v. Winter, 3 Ves. 540, 541 ; Lane v. Ld. Stanhope, 6 T. R. 345 ; Doe v. Huthwaite, 3 B. & Aid. 632 ; Goodright v. Downshire, 2 B. & P. 608, per Ld. Alvanley ; Landsowne V. Landsowne, 2 Bligh, 60 ; Clementson v. Gandy, 1 Keen, 309 ; King v. Badeley, 3 My. & K. 417. So, parol evidence is admisaible to show what debt was referred to, in a letter of collateral guaranty. Drummond v. Prest- man, 12 Wheat. 515. So, to show that advances, which had been made, were in fact made upon the credit of a particular letter of guaranty, j Douglass V. Reynolds, 7 Pet. 113. So, to identify a note, which is provided | for in an assignment of the debtor's property for the benefit of his creditors, but which is miadesoribed in the schedule annexed to the assignment. Pierce V. Parker, 4 Met. 80. So, to show that the indorsement of a note was made merely for collateral security. Dwight v. Linton, 3 Rob. (Louis.) R. 5 7. See also Bell v. Firemen's Ins. Co. Id. 423, 428, where parol evidence was ad- mitted of an agreement to sell, prior to the deed or act of sale. So, to show what flats were occupied by the riparian proprietor aa appurtenant to his 404 LAW OF EVIDENCE. [PART 11. infringement of the rule, which, as we have seen, only ex- cludes parol evidence of other language, declaring his mean- ing, than that which is contained in the instrument itself. § 289. In regard to wills, much greater latitude was for- merly allowed, in the admission of evidence of intention, than is warranted by the later cases. The modern doctrine on this subject, is nearly or quite identical with that which governs in the interpretation of other instruments ; and is best stated in the language of Lord Abinger's own lucid exposition, in a case in the Exchequer.^ " The object," he remarked, " in all cases is to discover the intention of the testator. The first and most obvious mode of doing this is to read hffi wiU as he has written it, and coUect his intention from his words. But as his words refer to facts and circum- upland and -wharf, and passed -with them by the deed. Treat v. Strickland, 10 Shepl. 234. [Parol evidence may be introduced to show what persons were meant by the designation of " Horace Gray and others," in a written agreement. Herring v. Boston Iron Co. 1 Gray, 134 ; and to show the cir- cumstances attending the giving a written certificate of competency to teach school. Hopkins v. School District, 1 Williams, 281. So, also where a note had on it the following indorsements : " Greenwood & Nichols — without recourse — Asa Perley," the first indorsers were allowed to prove that the words " without recourse," were written by them when they indorsed the note. Fitchburg Bank v. Greenwood, 2 Allen, 434. See also Rey v. Simp- son, 22 How. 341.] 1 Hiscooks V. Hiscocks, 5 M. & W. 363, 367. This was an action of ejectment, brought on the demise of Simon Hiscocks against John Hiscocks. The question turned on the words of a devise in the will of Simon Hiscocks, the grandfather of the lessor of the plaintiff and of the defendant. By his will, Simon Hiscocks, after devising estates to his son Simon for life, and from and after his death, to his grandson, Henry Hiscocks, in tail male, and making, as to certain other estates, an exactly similar provision in favor of his son John for life ; then after his death, the testator devised those estates to " my grandson John Hiscocks, eldest son of the said John Hiscooks." It was on this devise that the question wholly turned. In fact, John Hiscocks, the father, had been twice married; by his first wife he had Simon, the lessor of the plaintiff, his eldest son ; the eldest son of the second marriage was John Hiscocks, the defendant. The devise, therefore, did not, both by name and description, apply to either the lessor of the plaintifi^ who was the eldest son, but whose name was Simon, nor to the defendant, who, though his name was John, was not the eldest son. CHAP. XV.] ADMISSIBILITY OE PAROL EVIDENCE. 405 stances, respecting his property and his family, and others whom he names or describes in his will, it is evident that the meaning and application of his words cannot be ascer- tained, without evidence of all those facts and circum- stances.' To understand the meaning of any writer, we must first be apprised of the persons and circumstances that are the subjects of his allusions or statements ; and if these are not fully disclosed in his work, we must look for illustra- tion to the history of the times in which he wrote, and to the works of contemporaneous authors. All the facts and circumstances, therefore, respecting persons or property, to which the will relates, are undoubtedly legitimate, and often necessary evidence, to enable us to understand the meaning and application of his words. Again, the testator may have habitually called certain persons or things by peculiar names, by which they were not commonly known. If these names should occur in his will, they could only be explained and construed by the aid of evidence, to show the sense in which he ^ased them, in like manner as if his will were written in cipher, or in a foreign language. The habits of the testator, in these particulars, must be receivable as evidence, to ex- plain the meaning of his will. But there is another mode of obtaining the intention of the testator, which is by evidence of his declarations, of the instructions given for his will, and other circumstances of the like nature, which are not adduced for explaining the words or meaning of the will, but either to supply some deficiency, or remove some obscurity, or to give some effect to expressions that are unmeaning or am- biguous. Now, there is but one case in which it appears to us that this sort of evidence of intention can properly be admitted, and that is, where the meaning of the testator's words is neither ambiguous nor obscure, and where the devise is, on the face of it, perfect and intelligible, but, from some of the circumstances admitted in proof, an ambiguity arises as to which of the two or more things, or which of the 1 See Crocker v. Crocker, 11 Pick. 257; Lamb v. Lamb, Id. 3 75, per Shaw, C. J.; Bainbridge v. Wade, 20 Law J. Rep. (N. S.) Q. B. 7 ; 1 Eng. L- & Eq. Kep. 236. 406 LAW OIP EVIDENCE. [PART 11, two or more persons, (each answering the words in the will,) the testator intended to express. Thus, if a testator devise his manor of S. to A. B., and has two manors of North S. and South S., it being clear he means to devise one only, whereas both are equally denoted by the words he has used, in that case there is what Lord Bacon calls ' an equivoca- tion,' that is, the words equally apply to either manor ; and evidence of previous intention may be received to solve this latent ambiguity, for the intention shows what he meant to do ; and when you know that, you immediately perceive that he has done it, by the general words he has used, which in their ordinary sense, may properly bear that construction. It appears to us that, in all other cases, parol evidence of what was the testator's intention, ought to be excluded, upon this plain ground, that his will ought to be made in j writing ; and if his intention cannot be made to appear by ) the writing, explained by circumstances, there is no will." ' 1 The learned Chief Baron's subsequent commentary on the opposing decisions seems, in a great measure, to have exhausted this topic. " It must be owned, however," said he, " that there are decided cases which are not to be reconciled with this distinction, in a manner altogether satisfactory. Some of them, indeed, exhibit but an apparent inconsistency. Thus, for example, in the case of Doe !>. Huthwaite, and Bradshaw v. Bradshaw, the only thing decided was, that, in a case like the present, some parol evidence was admis- sible. There, however, it was not decided that evidence of the testator's intention ought to be received. The decisions, when duly considered, amount to no more than this, that where the words of the devise, in their primary sense, when applied to the circumstances of the family and the property, make the devise insensible, collateral facts may be resorted to, in order to show that, in some secondary sense of the words — and one in which Ihe testator meant to use them — the devise may have a full effect. Thus again, in Cheyney's case, and in Counden v. Clarke, ' the averment is taken,' in order to show which of two persons, both equally described within the words of the will, was intended by the testator to take the estate ; and the late cases of Doe d. Morgan v. Morgan, and Doe d. Gord v. Needs, both in this Court, are to the same effect. So, in the case of Jones v. Newman, according to the view the Court took of the facts, the case may be referred to the same principles as the former. The Court seems to have thought the proof equivalent only to proof of there being two J. C.'s strangers to each other, and then the decision was right, it being a mere case of what Lord Bacon calls equivocation. The cases of Price v. Page, Still v. lioste, and CHAP. XV.] ADMISSIBILITY OE PAROL EVIDENCE. 407 ^t § 290. From the above case, and two other leading mod- ern decisions,^ it has been collected,^ (1.) that where the Careless v. Carelesa, do not materially vary in principle from those last cited. They differ, indeed, in this, that the equivalent description is not entirely accurate ; but they agree in its being (although inaccurate) equally appli- cable to each claimant ; and they all concur in this, that the inaccurate part of the description is either, as in Price v. Page, a mere blank, or, as in the other two oases, applicable to no person at all. These, therefore, may fairly be classed also as cases of equivocation ; and in that case, evidence of the intention of the testator seems to be receivable. But there are other cases not so easily explained, and which seem at variance with the true principles of evidence. In Selwood v. Mildmay, evidence of instructions for the will was received. That case was doubted in Miller v. Travers ; but, perhaps, having been put by the Master of the EoUs as one analogous to that of the devise of all a testator's freehold houses in a given place, where the testator had only leasehold houses, it may, as suggested by Lord Chief Justice Tin- dal, in Miller v. Travers, be considered as being only a wrong application to the facts of a correct principle of law. Again, in Hampshire v. Pierce, Sir John Strange admitted declarations of the intentions of the testatrix to be given in evidence, to show that by the words, ' the four children of my niece Bamfield,' she meant the four children by the second marriage. It ' may well be doubted whether this was right, but the decision on the whole case was undoubtedly correct; for the circumstances of the family, and their ages, which no doubt were admissible, were quite sufficient to have sustained the judgment, without the questionable evidence. And it may be further observed, that the principle with which Sir J. Strange is said to have commenced his judgment, is stated in terms much too large, and is so ■ far inconsistent with later authorities. Beaumont v. Fell, though somewhat doubtful, can be reconciled with true principles upon this ground, that there was no such person as Catherine Earnley, and that the testator was accus- 1 Miller v. Travers, 8 Bing. 244, and Doe d. Gord v. Needs, 2 M, & W. 129. The rule on this subject was thus stated by Tindal, C. J.: — "In all cases where a difficulty arises in applying the words of a will or deed to the subject-matter of a devise or grant, the difficulty or ambiguity, which is introduced by the admission of extrinsic evidence, may be rebutted or removed by the production of further evidence upon the same subject, cal- culated to explain what was the estate or subject-matter really intended to be granted or devised." Miller v. Travers, supra, expressly recognized and approved in Atkinson v. Cummins, 9 How. S. C. Rep. 479. The same rule is applied to the monuments in a deed, in Clough v. Bowman, 15 N. Hamp. 504. 2 By Vice-Chancellor Wigram, in his Treatise on the Interpretation of Wills, pi. 184, 188. See also Gresley on Evid. 203. 408 LAW OF EVIDENCE. [PAET II. descriptibn in the will, of the person or thing- intendedj is applicable with legal certainty to each of several subjects, extrinsic evidence is admissible to prove, which of such sub- jects was intended by the testator. But (2.) if the descrip- tion of the person or thing be wholly inapplicable to the sub- ject intended, or said to be intended by it, evidence is admis- sible to prove whom or what the testator reaUy intended to describe. His declarations of intention, whether made before or after the making of the will, are alike inadmissible.^ tomed to address Gertrude Yardley by the name of Gatty. This, and other circumstances of the like nature, which were clearly admissible, may per- haps be considered to warrant that decision ; but there the evidence of the testator's declarations, as to his intention of providing for Gertrude Yard- ley, was also received ; and the same evidence was received at Nisi Prius, in Thomas v. Thomas, and approved on a motion for a new trial, by the dicta of Lord Kenyon and Mr. Justice Lawrence. But these cases seem to us at variance with the decision in Miller v, Travers, which is a decision entitled to great weight. If evidence of intention could be allowed for the purpose of showing, that by Catherine Earnley and Mary Thomas, the respective testators meant Gertrude Yardley and Elinor Evans, it might surely equally be adduced to prove, that by the county of Limerick a testator meant the county of Clara. Yet this was rejected, and we think rightly. We are pre- pared on this point, (the point in judgment in the case of Miller v. Travers,) to adhere to the authority of that case. Upon the whole, then, we are of opinion that, in this case, there must be a new trial. Where the description is partly true as to both claimants, and no case of equivocation arises, what is to be done is to determine whether the description means the lessor of the plaintiff or the defendant. The description, in fact, applies partially to each, and it is not easy to see how the difficulty can be solved, If it were res Integra, we should be much disposed to hold the devise void for uncer- tainty ; 'but the cases of Doe w. Huthwaite, Bradshaw v. Bradshaw, and others, are authorities against this conclusion. If, therefore, by looking at the surrounding facts to be found by the Jury, the Court can clearly see, ■with the knowledge which arises from those facts alone, that the testator meant either the lessor of the plaintiff or the defendant, it may so decide, and direct the Jury accordingly ; but we think that, for this purpose, they cannot receive declarations of the testator of what he intended to do in making his will. If the evidence does not enable the Court to give such a direction to the Jury, the defendant will Indeed for the present succeed ; but the claim of the heir-at-law will probably prevail ultimately, on the ground that the devise is void for uncertainty." 1 Wigram on Wills, pi. 104, 187; Brown v. Saltonstall, 3 Met. 423, 426; Trustees, &c. y. Peaslee, 15 N. Hamp. 317, 330. CHAP. XV.] ADMISSIBILITY OP PAEOL EVIDENCE. 409 Those made at the time of making the will, when admitted at all, are admitted under the general rules of evidence applicable alike to all written instruments. § 291. But declarations of the testator, proving or tending to prove a material fact collateral to the question of inten- tion, where such fact would go in aid of the interpretation of the testator's words, are, on the principles already stated, ad- missible. These cases, however, will be found to be those only, in which the description in the will is unambiguous in its application to a.ny one of several subjects.^ Thus, where lands were devised to John Cluer of Calcot, and there were father and son of that name, parol evidence of the testator's declarations, that he intended to leave them to the son, was 1 Wigram on Wills, pi. 104, 194, 195. This learned writer's General Conclusions., as the result of the whole matter, which he has so ably discussed in the treatise just cited, are " (1.) That the evidence of material facts is, in all cases, admissible in aid of the exposition of a will. (2.) That the legiti- mate purposes to which — in succession — such evidence is applicable, are two : namely, /irst, to determine whether the words of the will, with refer- ence to the facts, admit of being construed in their primary sense ; and, secondly, if the facts of the case exclude the primary meaning of the words, to determine whether the intention of the testator is certain in any other sense, of which the words, with reference to the facts, are capable. And, (3.) That intention cannot be averred in support of a will, except in the special cases, which are stated under the Seventh Proposition ; " (see supra, § 287, note,) namely, cases " where the object of a testator's bounty, or the subject of disposition, (i. e. the person or thing intended,) is described in terms which are applicable indifferently to more than one person or thing." Id. pi. 211, 212, 213, 214. And he insists, " (1.) That the judgment of a Court, in expounding a will, should be .simply declaratory of what is in the instrument ; and, (2.) That every claimant under a will has a right to re- quire that a Court of construction, in the execution of its office, shall — by means of extrinsic evidence — place itself in the situation of the testator, the meaning of whose language it is called upon to declare." Id. pi. 5, 96, 215 : Doe v. Martin, 1 N. & M. 524, per Parke, J.; 4 B. & Ad. 771, S. C; Guy V. Sharp, 1 M. & K. 602, per Ld. Brougham, C. See also Boys v. Wil- liams, 2 Russ. & M. 689, where parol evidence of the testator's property and situation was held admissible, to determine whether a bequest of stock was intended as a specific or a pecuniary legacy. These rules apply with equal force to the interpretation of every otljer private instrument. VOL. I. 35 410 LAW OF EVIDENCE. [PART 11. held admissible.^ So, where a legacy was given to "the four children of A." who had six children, two by a first, and four by a second marriage, parol evidence of declarations by the testatrix, that she meant the latter four, was held admissible.^ So, where the devise was, " to my granddaughter, Mary Thomas of Llechloyd in Merthyr parish," and the testator had a granddaughter named Elinor Evans in that parish, and a great-granddaughter, Mary Thomas, in the parish of Llan- gain ; parol evidence of the testator's declarations at the time of making the will was received, to show which was intended.^ So, where a legacy was given to Catherine Earn- ley, and there was no person of that name ; but the legacy was claimed by Gertrude Yardley ; parol proof was received, that the testator's voice, when the scrivener wrote the will, was very low, that he usually called the legatee Gatty, and had declared that he would do well by her in his will ; and thereupon the legacy was awarded to her.* So, also, where 1 Jones V. Newman, 1 W- Bl. 60. See also Doe v. Benyon, 4 P. & D. 193 ; Doe v. Allen, 4 P. & D. 220. But where the testator devised to his " grandson Rufus," and there were two of that name, the one legitimate who lived in a foreign land, and whom he had seen only once and when a child, and the other illegitimate, living with him, and whom he had brought up and educated ; it was held, that the words were legally appli- cable only to the legitimate grandson, and that parol evidence to the con- trary was not admissible. Doe v. Taylor, 1 Allen, 425, (N. Bruns.), Street, J., dissentiente. 2 Hampshire v. Pierce, 2 Ves. 216. 3 Thomas v. Thomas, 6 T. R. 671. * Beaumont v. Fell, 2 P. Wms. 141. The propriety of receiving evidence of the testator's declarations, in either of the two last-cited cases, was, as we have just seen, (supra, § 239, note,) strongly questioned by Lord Abinger, (in Hiscocks v. Hiscocks, 5 Mees. & Welsh. 371,) who thought them at vari- ance, in this particular, with the decision in Miller v. Traverse, 8 Bing. 244, which, he observed, was a decision entitled to great weight. But upon the case of Beaumont v. Pell, it has been correctly remarked, that " the evi- dence, which is confessedly admissible, would, in conjunction with the will itself, show that there was a devise to Catherine Earnley, and that no such person existed, but that there was a claimant named Gertrude Tardley, whom the testator usually called Gatty. In this state of the case, the ques- tion would be, whether, upon the principle of falsa demonstratio non nocet, the surname of Earnley being rejecte^, the christian name, if correct, would CHAP% XV.] ADMISSIBILITY OP PAROL EVIDENCE. 411 a devise was to " the second son of Charles Weld, of Lul- ■worth, Esq.j" and there was no person of that name, but the testator had two relatives there, bearing the names of Joseph Weld, and Edward-Joseph Weld, it was held, upon the con- text of the will, and upon extrinsic evidence, that the second son of Joseph Weld was the person intended. So, where a bequest was to John Newbolt, second son of William- Strang- ways Newbolt, Vicar of Somerton ; and it appeared aliunde that the name of the vicar was William- Robert Newbolt, that his second son was Henry-Robert, and that his third son was John-Pryce ; it was held that John- Price was entitled to the legacy.^ So, where the testatrix gave legacies to Mrs. and Miss B. of H., widow and daughter of the Rev. Mr. B. ; upon the legacies being claimed by Mrs. and Miss W., widow and daughter of the late Rev. Mr. W. of H., it was held, that they were entitled ; it appearing aliunde that there were no persons literally answering the description in the will, at its date ; but that the claimants were a daughter and grand- daughter of the late Rev. Mr. B., with all of whom the tes- tatrix had been intimately acquainted, and that she was accustomed to call the claimants by the maiden nanje of itself be a sufficient indication of the devisee ; and if so, whether Gatty satisfied that indication. Both these questions leave untouched the general question of the admissibility of evidence, to show the process by which Gatty passed into Katty, and from Katty to Catherine." See Phil. & Am. on Evid. p. 729, note (2). It is not easy, however, to perceive why extrinsic evidence of the testator's declared intentions of beneficence towards an individual is not as admissible, as evidence is, that he used to speak of him or address him as his son, or godson, or adopted child; when the object in both cases is to ascertain which, of several demonstrations, is to be retained as true, and which rejected as false. Now the evidence of such declarations, in Beau- mont «. Fell, went to show that "Earnley" was to be rejected as falsa demonstratio ; and the other evidence went to designate the individual intended by the word " Catherine ; " not by adding words to the will, but by showing what the word used meant. See infra, § 300; Wigram on the Interpretation of Wills, pp. 128, 129, pi. 166. See also Baylis v. The Attor. Gen. 2 Atk. 239 ; Abbott v. Massie, 3 Ves. 148 ; Doe d. Oxenden v. Chi- chester, 4 Dow'a P. C. 65, 93 ; Duke of Dorset v. Ld. Hawarden, 3 Curt. 80 ; Trustees, &c. v. Peaslee, 15 N. Hamp. 317 ; Doe v. Hubbard, 15 Ad. & El. (N. S.) 248, pel- Ld. Campbell. 1 Newbolt V. Pryce, 14 Sim. 354. , 412 LAW OF EVIDENCE. [PART II. Mrs. W.^ The general principle in all these cases is this, that if there be a mistake in the name of the devisee, but a right description of him, the Court may act upon such right description '^ and that if two persons equally answer the same name or description, the Court may determine, from the rest of the will and the surrounding circumstances, to which of them the will applies.^ \ 292. It is further to be observed, that the rule under con- sideration, which forbids the admission of parol evidence to contradict or vary a written contract, is not infringed by any evidence of known and established usage, respecting the sub- ject to which the contract relates. To such usage, as well as to the lex loci, the parties may be supposed to refer, just as they are presumed to employ words in their usual and ordi- nary signification ; and accordingly the rule is in both cases the same. Proof of usage is admitted, either to interpret the meaning of the language of the contract, or to ascertain the nature and extent of the contract, in the absence of ex- press stipulatipns, and where the meaning is equivocal and obscure.* Thus, upon a contract for a year's service, as it does not in terms bind the party for every day in the year, parol evidence is admissible to show a usage for servants to 1 Lee V. Pain, 4 Hare, 251 ; 9 Jur. 24. 2 On the other hand, if the name is right, but the description is wrong, the name will be regarded as the best evidence of the testator's intention. Thus, where the testator had married two wives, Mary and Caroline, suc- cessively, both of whom survived himi and he devised an estate to his " dear wife Caroline," the latter was held entitled to take, thoiigh she was not the true wife. • Doe v. Roast j 12 Jur. 99. 3 Blundell v. Gladstone, 1 Phil. Ch. R. 279, 288, per Pafteson, J. * 2 Poth. on Obi. by Evans, App. No. xvi. p. 187; 2 Sumn. 569, per Story, J. ; 11 Sim. 626, per Parke, B. ; 4 East, 135, per Ld. EUenborough ; Cutter V. Powell, 6 T. R. 320 ; Vallance v. Dewar, 1 Campb. 503 ; Noble V. Kennoway, 2 Doug. 510 ; Bottomley w. Forbes, 5 Bing. N. C. 121 ; 8 Scott, 866 ; Ellis v. Thompson, 3 M. & W. 4<45 ; Post, Vol. 2, [7thi ed.] §251, [252, and notes.] The usage must be general in the whole city or place, or among all persons in the trade, and not the usage of a particular class only, or the course of practice in a particular office or bank, to whom or which the party is a stranger. Gabay- v. Lloyd, 8 B. & C. 793. . CHAP. XV.] ADMISSIBILITY OE PAROL EVIDENCE!. 413 have certain holidays for themselves.^ So, where the contract was for performance as an actor in a theatre, for tfiree years, at a certain sum per week, parol evidence was held admis- sible to show that, according to uniform theatrical usage, the actor was to be paid only during the theatrical season, namely, during the time while the theatre was open for per- formance, in each of those years.'' So, where a ship is war- ranted " to depart with convoy," parol evidence is admissi- ble to show at what place convoy for such a voyage is usually taken ; and to that place the parties are presumed to refer.* So, where one of the subjects of a charter-party was " cotton in bales," parol evidence of the mercantile use and meaning of this term was held admissible.* So, where a promissory note or bill is payable with grace, parol evidence of the known and established usage of the bank at which it is payable, is admissible to show on what day the grace ex- pired.^ But though usage may be admissible to explain! what is doubtful, it is not admissible to contradict what isi plain.® Thus, where a policy was made in the usual form, upon the ship, her tackle, apparel, boats, &c., evidence of usage, that the underwriters never pay for the loss of boats slung upon the quarter, outside of th^ ship, was held inad- missible.'' So, also, in a libel in rem upon a bill of lading, 1 Kegina v. Stoke upon Trent, 5 Ad. & El. 303, N. S. 2 Grant v. Maddox, 15 M. & W. 737. 3 Lethulier's case, 2 Salk. 443. 4 Taylor ». Briggs, 2 C. & P. 525. [Where part of a memorandum of sale was as follows: "Bought 150 tons madder, 12i, 6 ms.," it may be shown that among dealers in madder, in such a contract 12j means 12i cents per pound, and expresses the price of the madder. Dana v. Fielder, 2 Kernan, , 40; Brown u. Brooks, 25 Penn. State R. 210; Allan v. Comstock, 17 Geo. 654; Brown v. Byrne, 26 Eng. Law & Eq. 247.] 5 Renner v. Bank of Columbia, 9 Wheat. 581, where the decisions to this point are reviewed by Mr. Justice Thompson. 6 2 Cr. & J. 249, 250, per Ld. Lyndhurst. [Oelricks ». Ford, 23 How. 49.] 1 Blackett v. The Royal Exch. Assurance Co. 2 Cr. & J. 244. So, ■where the written contract was for " prime singed bacon," and evidence was offered to prove, that by the usage of the trade a certain latitude of de- terioration, called average taint, was allowed to subsist, before the bacon 35 * 414 LAW OF EVIDKNCB. [PAET II. containing the usual clause, " the dangers of the seas only excepted," where it was articulated in the answer, that there was an established usage, in the trade in question, that the ship-owners should see the merchandise properly secured and stowed, and that this being done, they should not be liable for any damages not occasioned by their own neglect ; it was held that this article was incompetent, in point of law, to be admitted to proof.^ ceases to answer the description of prime bacon ; it was held inadmissible. Yates V. Pym, 6 Taunt. 446. So also, parol evidence has been held inadmis- sible to prove, that by the words, " glass ware in casks," in the memorandum of excepted articles in a fire policy, according to the common understanding and usage of insurers and insured, were meant such ware in open casks only. Bend v. The Georgia Ins. Co., Sup. Court, N. York, 1842. But see Gray V. Harper, 1 Story, R. 574, (infra, page 420 note.) [VVhitmore v. The South Boston Iron Co. 2 Allen, 52. Where in an action against warehouse- men for the non-delivery of property bailed to them, the defence was, that the property had been fraudulently taken from their custody, without any negligence on their part, and the plaintiff' did not claim that the property had in fact been delivered to any person, evidence of the usage of other ware- housemen of taking receipts from persons to whom property was delivered, is inadmissible. Lichtenhein «. Boston & P. K. R. Co. 11 Cush. 70, 72. Had there been an actual delivery to a third person by the warehouseman, qucere how far such evidence of general usage might not be admissible to show negligence. lb.] 1 The Schooner Reeside, 2 Sumn. 567. In this case the doctrine on this subject was thus briefly but energetically expounded and limited, by Mr. Jus- tice Story. " I own myself," said he, " no friend to the almost indiscrimi- nate habit, of late years, of setting up particular usages or customs in almost all kinds of business and trade, to control, vary, or annul the general liabili- ties of parties under the Common Law, as well as under the Commercial Law. It has long appeared to me, that there is no small danger in admit- ting such loose and inconclusive usages and customs, often unknown to par- ticular parties, and always liable to great misunderstandings and misintei^ pretations and abuses, to outweigh the well-known and well-settled principles of law. And I rejoice to find, that, of late years, the Courts of Law, both in England and in America, have been disposed to narrow the limits of the operation of such usages and customs, and to discountenance any further extension of them. The true and appropriate office of a usage or custom is, to interpret the otherwise indeterminate intentions of parties, and to ascer- tain the nature and extent of their contracts, arising, not from express stipur lations, but from mere implications and presumptions, and acts of a, doubtful or equivocal character. It may also be admitted toascertain the truemean- CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 415 § 293. The reasons which warrant the admission of evi- dence of usage in any case, apply equally, whether it be re- quired to aid the interpretation of a statute, & public charter, or 2, private deed; and whether the usage be still existing or not, if it were contemporaneous with the instrument.^ And where the language of a deed is doubtful in the description of the land conveyed, parol evidence of the practical interpreta- tion, by the acts of the parties, is admissible to remove the doubt.^ So, evidence of former transactions between the ing of a particular word, or of particular words in a given instrument, when the word or words have various senses, some common, some qualified, and some technical, according to the subject-matter to which they are applied. But I apprehend, that it never can be proper to resort to any usage or cus- tom, to control or vary the positive stipulations in a written contract, and, d fortiori, not in order to contradict thein. An express contract of the parties is always admissible to supersede, or vary, or control a usage or custom ; for the latter may always be waived at the will of the parties. But a written/ and express contract cannot be controlled, or varied, or contradicted by al usage or custom ; for that would not only be to admit parol evidence to control, vary, or contradict written contracts, but it would be to allow mere presump- tions and implications, properly arising in the absence of any positive expres-j sions of intention, to control, vary, or contradict the most formal and delib- erate written declarations of the parties." See also Taylor u. Briggs, 2 C. & P. 525 ; Smith v. Wilson, 3 B{& Ad. 728 ; 2 Stark. Evid. 565 ; Park on Ins. Gh. 2, p. 30-60; Post, Vol. 2, [7th ed.] § 251 ; Hone v. Mutual Safety Ins. Co. 1 Sandf. S. C. R. 137. [Ware v. Hay ward Rubber Co. 3 Allen, 84; Symonds v. Lloyd, 6 Com. B. Rep. (N. S.) 691 ; Winn v- Chamberlain, 32 Vt. 318.] 1 Withnell v. Gartham, 6 T. R. 388 ; Stammers v. Dixon, 7 East, 200 ; Wadley w. Bayliss, 5 Taunt. 752 ; 2 Inst. 282 ; Stradling v. Morgan, Plowd. 205, ad. calc. ; Haydon's case, 3 Co. 7 ; Wells v. Porter, 2 Bing. N. C. 729, per Tindal, C. J. ; Duke of Devonshire v. Lodge, 7 B. & C. 36. 39, 40; Chad V. Tilsed, 2 B. & B. 403 ; Attorney-General v. Boston, 9 Jur. 838 ; 2 Eq. Rep. 107, S. C. ; Farrar v. Stackpole, 6 Greenl. 154; Meriam ti. Harsen, 2 Barb. Ch. R. 232. 2 Stone V. Clark, 1 Metealf's R. 378 ; Livingston v. Tenbroeck, 16 Johns. 14, 22, 23 ; Cook v. Booth, Cowp. 419. This last case has been repeatedly disapproved of, and may be considered as overruled ; not, however, in th^ principle it asserts, but in the application of the principle to that case. See Phil. & Am. on Evid. 747, note (1); I Sugd. Vend. (6th ed.) 210, *178; Cambiidge v. Lexington, 17 Pick., 222; Choate. v. Burnham, 7 Pick. 274; Allen V. Kingsbury, 16 Pick. 239 ; 4 Cruise's Dig. tit. 32, ch. 20, § 23, note, (Greenleaf's ed.) [2d ed. 1857, Vol. 2, p. 598, and note.] . 416 LAW OF EVIDENCE. [PAKT II. same parties, has been held admissible to explain the mean- ing of terms in a written contract, respecting subsequent transactions of the same character.^ § 294. Upon the same principle, parol evidence of usage or custom is admissible " to annex incidents," as it is termed, that is, to show what things are customarily treated as inci- dental and accessorial to the principal thing, which is the subject of the contract, or to which the instrument relates. Thus, it may be shown by parol that a heriot is due by custom,^ on the death of a tenant for life, though it is not expressed in the lease.^ So, a lessee by a deed may show that, by the custom of the country, he is entitled to an away- going crop, though no such right is reserved in the deed.^ So, in an action for the price of tobacco sold, evidence was held admissible to show that, by the usage of the trade, all sales were by sample, though not so expressed in the bought and sold notes.* This evidence is admitted on the principle, that the parties did not intend to express in writing the whole of the contract by which they were to be bound, but only to make their contract with reference to the known and estab- lished usages and customs relating to the subject-matter. But, in all cases of this sort, the rule for admitting the evi- dence of usage or custom must be taken with this qualifica- tion, that the evidence be not repugnant to, or inconsistent with, the contract ; for otherwise it would not go to interpret and explain, but to contradict that which is written.^ This rule does not add new terms to the contract, which, as has already been shown,^ cannot be done ; but it shows the full 1 Bourne u. GatlifF, 11 CI. & Fin. 45, 69, 70. [See Bliven v. New Eng- land Screw Co. 23 How. 420.] 2 White V. Sayer, Palm. 211. 3 Wigglesworth v. Dallison, 1 Doug. 201 ; 1 Smith's Leading Cas. 300 ; 1 Bligh, 287 ; Senior v. Armytage, Holt's N. P. Cas. 197 ; Button v. War- ren, l.M. & W. 466. * Syers v. Jonas, 2 Exch. E. 111. 5 Yeates v. Pim, Holt's N. P. Cas. 95 ; Holding v. Pigott, 7 Bing. 466, 474; Blackett v. The Royal Exch. Assur. Co. 2 C. & J. 244; Caipe v. Horsefall, 2 C. & K, 349. 6 Supra, § 281. CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 417 extent and meaning of those which are contained in the instrument. § 295. But, in resorting to usage for the meaning of particu- lar words in a contract, a distinction is to be observed be- tween local and technical words, and other words. In regard to words which are purely technical, or local, that is, words which are not of universal use, but are familiarly known and employed, either in a particular district, or in a particular science or trade, parol evidence is always receivable, to define and explain their meaning among those who use them. And the principle and practice are the same in regard to words which have two meanings, the one common and universal, and the other -technical, peculiar, or local ; parol evidence being admissible of facts tending to show that the words were used in the latter sense, and to ascertain their technical or local meaning. The same principle is also applied in regard to words and phrases, used in a peculiar sense by members of a particular religious sect.^ But beyond this 1 The doctrine on this subject has recently been very fully reviewed, in the case of Lady Hewley's charities. This lady, who was a non-conformist, in the year 1704, conveyed certain estates by deeds, in trust, for the benefit of " poor and godly preachers of Christ's Holy Gospel," and their widows, and " for the eneouraging and promoting of the preaching of Christ's Holy Gospel," &c. ; with the usual provision for preserving a perpetual succession of trustees. Afterwards, in 1707, by other deeds to the same trustees, she made provision for the erection and support of a hospital or almshouse, for certain descriptions of poor persons, ordaining rules for the government of the house, and appointing the trustees as the visitors, &c. ; and disposing of the surplus funds as in the deeds of 1 704, The rules permitted the admis- sion of none but such as were poor and piously disposed, and of the Protes- tant religion, and were able to repeat the Lord's Prayer, the Greed, and the Ten Commandments, and Mr. Edward Bowles's Catechism. It was alleged that lyady Hewley, and all the trustees, whose religious opinions could be ascertained, believed in the doctrine of the Trinity, the Atonement, and Original Sin. In the course of time, however, the estates became vested in trustees, the majority of whom, though calling themselves Presbyterians, professed Unitarian opinions, and the funds had for some years been applied, to a considerable extent, for the support of a seminary, and for the benefit of poor preachers of that denomination. When the charity was founded, the Stat. 9 & 10 W. 3, c. 32, against blasphemy was in force, by which those 418 LAW OF EVIDENCE. [PART II. the principle does not extend. If, therefore, a contract is made in ordinary and popular language, to which no local persons, who by preaching denied the doctrine of the Trinity, were liable to severe penalties. The object of the suit was, in effect, to take this trust out of the hands of the Unitarians, and to obtain a declaration, that it should be managed and applied by and for none but Orthodox Dissenters ; and the controversy turned chiefly on the question, whether certain evidence was ad- missible, which was offered to show what sort of persons were intended, in the deed of 1704, by "godly preachers of Christ's Holy Gospel," &c. This evidence, in addition to the deed of 1707, consisted principally of the will of Lady Hewley, the sermon of Dr. Coulton, one of the trustees, which was preached at her funeral, and the will of Sir John Hewley, her husband ; all containing passages, showing, that she and the trustees were Presbyterians, believing in the Trinity, the Atonement, and Original Sin ; together with the depositions of persons, conversant with the history and language of the times, when the deeds were executed, defining the meaning then commonly attached to the words in question, by persons of the donor's faith ; and it was argued that the persons whom she intended to designate as beneficiaries could have been only those of her own faith. The Vice-Chancellor admitted this evi- dence, and decreed, that preachers of the Unitarian doctrine and their wid- ows, were not entitled to the benefit of this charity, and he ordered that the existing trustees should be removed and others appointed, and that the cha,rity should in future be applied accordingly. This decree Lord Ch. Lyndhurst, assisted by Patteson, J., and Alderson, B., afterwards affirmed. An appeal being taken from the judgment of Lord Lyndhurst, to the House of Lords, the House, after taking the opinions of 'the Common-Law Judges, upon cer- tain questions proposed to them, dismissed the appeal. The first and princi- pal of these questions was, whether the extrinsic evidence adduced, or what part of it, was admissible for the purpose of determining who were entitled under the terms " godly preachers of Christ's Holy Gospel," " godly per- sons," and the other descriptions contained in the deeds of 1 704 and 1 70 7, to the benefit of Lady Hewley's bounty. The other questions, which were five in number, were framed lo ascertain, if such evidence should be deemed admissible, what descriptions of persons were, and what were not the proper objects of the trusts. Of the seven learned Judges, who answered these questions, six were of opinion, but on various grounds, that Unitarians were excluded. Maule, J., was of opinion, that none of the evidence offered was admissible ; and that the religious opinions of the founder of a charity, even if certainly known, could have no legal effect in the interpretation of an instrument, in which no reference is made to his own religious opin- ions or belief Erskine, J., was also of opinion that none of the evidence was admissible, for the purpose for which it was offered ; but that the sense of the words in question might be ascertained from contemporaneous writ- ings, and the history of that day ; and that from these sources, already CHAP. XV.] ADMISSIBILITY OH PAROL EYIDENOB. 419 or technical and peculiar meaning is attached, parol evidence, it seems, is not admissible to show that, in that particular open to the House, it was easy to collect, that the words were applicable to none but Trinitarian Dissenters. Coleridge, J., and Ourney, B., were of opinion, that the evidence was admissible, to show the opinions of those with whom the founder lived in most confidence, and to what sect she in fact belonged ; and that the phraseology of that party might be ascertained from other sources. Williams, J., thought that the words employed were so indefi- nite and ambiguous, that she must be presumed to have used them in a lim- ited sense ; and that this sense might be ascertained from her opinions ; for which purpose the evidence was admissible. Parke, B., and Tindal, C. J., were of opinion, that, though it might well be shown, by competent evidence, that the words employed had a peculiar meaning at the time they were used, and what was that meaning ; and that the deeds were to be read by substitut- ing the equivalent expressions, thus ascertained, instead of those written in the deeds ; yet, that evidence of her own religious opinions was not admis- sible, to limit or control the meaning of the words. Upon this occasion, the general doctrine of the law was stated by Mr. Baron Parke, in the following \ terms : " I apprehend that there are two descriptions of evidence, which are clearly admissible, in every case, for the purpose of enabling a Court to con- strue any written instrument and to apply it practically. In the first place, there is no doubt, that not only where the language of the instrument is such as the Court does not understand, it is competent to receive evidence of the proper meaning of that language, as when it is written in a foreign tongue ; but it is also competent where technical words or peculiar terms, or, indeed, any expressions are used, which, at the time the instrument was written, had acquired any appropriate meaning, either generally, or by local usage, or amongst particular classes. This description of evidence is admissible, in order to enable the Court to understand the meaning of the words contained in the instrument itself, by themselves, and without reference to the extrin- sic facts on which the instrument is intended to operate. For the purpose of applying the instrument to the facts, and determining what passes by it, and who take an interest under it, a second description of evidence is admissible, namely, every material fact, that will enable the Court to identify the person or thing mentioned in the instrument, and to place the Court, whose province it is to declare the meaning of the words of the instrument, as near as may be, in the situation of the parties to it. From the context of the instrument, and from these two descriptions of evidence, with such circumstances as by law the Court, without evidence, may of itself notice, it is its duty to construe and apply the words of that instrument ; and no extrinsic evidence of the intention of the party to the deed, from his declarations, whether at the time of his executing the instrument, or before or after that time, is admissible ; the duty of the Court being to declare the meaning of what is written in the instrument, not of what was intended to have been written." — Lord Ch. J. 420 LAW OF EVIDENCE. [PAKT II. case, the words were used in any other than their ordinary and popular sense.^ Tindal expounded the same doctrine as follows : " The general rule I take to be, that where the words of any written instrument are free from ambi- guity in themselves, and where external circumstances do not creat« any doubt or difficulty, as to the proper application of those words to claimants under the instrument, or the subject-matter to which the instrument relates, such instrument is always to be construed according to the strict, plain, com- mon meaning of the words themselves; and that, in such case, evidence dehors the instrument, for the purpose of explaining it according to the sur- mised or alleged intention of the parties to the instrument, is utterly inadmis- sible. If it were otherwise, no lawyer would be safe in advising upon the construction of a written instrument, nor any party in taking under it ; for the ablest advice might be controlled, and the clearest title undermined, if, at some future period, parol evidence of the particular meaning which the party affixed to his words, or of his secret intention in making the instrument, or of the objects he meant to take benefit under it, might be set up to con- tradict or vary the plain language of the instrument itself. The true intei^ pretation, however, of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered as an exception, or perhaps, to speak more precisely, not so much an exception from, as a corollary to, the general rule above stated, that, where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself; for both reason and common sense agree, that by no other means can the lan- guage of the instrument be made to speak the real mind of the party. Such investigation does, of necessity, take place in the interpretation of instruments written in a foreign language ; in the case of ancient instruments, where, by the lapse of time and change of manners, the words have acquired, in the present age, a different meaning from that which they bore when originally employed ; in cases where terms of art or science occur ; in mercantile con- tracts, which, in many instances, use a peculiar language, employedby those only who. are conversant in trade and commerce ; and in other instances in which the words, besides their general, common meaning, have acquired, by custom or otherwise, a well known, peculiar, idiomatic meaning, in the par- 1 2 Stark. Evid. 566 ; Supra, §§ 277, 280. But see Gray v. Harper, 1 Story's ,R. 574, where two booksellers having contracted for the sale and purchase of a certain work at " cost," parol evidence of conversations be- tween them, at the time of making the contract, was held admissible, to show what sense they attached to that term. See also Selden v. Williams, 9 Watts, 9 ; Kemble v. Lull, 3 McLean, 272. CHAP. XV.] ADMISSIBILITY OP PAROL BVIDENOB. 421 § 295 a. It is thus apparent, as was remarked at the out- set, that in all the cases in which parol evidence has been ticular country in which the party using them was dwelling, or in the partic- ular society, of which he forihed a member, and in which he passed his life. In all these cases, evidence is admitted, to expound the real meaning of the language used in the instrument, in order to enable the Court, or Judge, to construe the instrument, and to carry such real meaning into effect. But, whilst evidence is admissible, in these instances, for the purpose of making the written instrument speak for itself, which, without such evidence, would be either a dead letter, or would use a doubtful tongue, or convey a false impression of the meaning of the party, I conceive the exception to be strictly limited to cases of the description above given, and to evidence of the nature above detailed ; and that in no case whatever is it permitted to explain the language of a deed by evidence of the private views, the secret intentions, or the known principles of the party to the instrument, whether religious, political, or otherwise, any more than by express parol declarations made by the party himself, which are universally excluded ; for the admit- ting of such evidence would let in all the uncertainty before adverted to ; it would be evidence which, in' most instances, could not be met or counter- vailed by any of an opposite bearing or tendency, and would, in effect, cause the secret undeclared intention of the party to control and predominate over the open intention expressed in' the deed." -See Attorney-General v. Shore, 11 Sim. R. 592, 616-627, 631, 632. Though, in this celebrated case, the general learning on this subject has been thus ably opened and illustrated ; yet the precise question, whether the religious opinions of the founder of a charity can be received as legal exponents of his intention, in an instrument otherwise intelligible in its terms, and in which no reference is made to his own opinions or belief, can hardly be considered as definitely settled ; espec- ially as a majority of the learned Judges, in coming to the conclusion in which they concurred, proceeded on grounds which rendered the considerar tion of that point whoUy unnecessary. The previous judgment of Lord. Ch. Lyndh.urst, in the same case, is reported in 7 Sim. 309, h., 312-317. See Attorney-General v. Pearson et al. 3 Meriv. 353, 409-411, 415 ; and after- wards in 7 Sim. 290' 307, 308, where such evidence was held admissible. But how far this decision is to be considered as shaken by what fell from the learned Judges, in the subsequent case of the Attorney-General v. Shore, above stated, remains to be seen. The acts of the founder of such a charity may be shown, in aid of the construction of the deed, where the language is doubtful ; and contemporaneous treatises, documents, and statutes may be read, to show the sense in which any words or phrases were commonly used in that day, and thereby to show the sense in which the founder used them, in the deed of donation ; but his opinions are inadmissible. Attorney-Gen- eral V. Drummond, 1 Drury & Warren, 353, per Sugden, C; affirmed in Dom. Proc. on Appeal, 2 Eng. Law & Eq. R. 15 ; 14 Jur. 137. See Attor- ney-General V. Glasgow College, 10 Jurist, 676. VOL. I. " 36 422 LAW OF EVIDENCE. [PART II. admitted in exposition of that which is -written, the principle of admission is, that the Court may be placed, in regard to the surrounding circumstances, as nearly as possible in the situation of the party whose written language is to be inter- preted ; the question being, what did the person, thus circum- stanced, mean by the language he has employed ? § 296. There is another class of cases, in which parol evi- dence is allowed by Courts of Equity to affect the operation of a writing, though the writing on its face is free from am- biguity, which is yet considered as no infringement of the general rule ; namely, where the evidence is offered to rebut an equity. The meaning of this is, that where a certain pre- sumption would, in general, be deduced from the nature of an act, such presumption may be repelled by extrinsic evi- dence, showing the intention to be otherwise.^ The sim- plest instance of this occurs, when two legacies, of which the sums and the expressed motives exactly coincide, are presumed not to have been intended as cumulative. In such case, to rebut the presumption which makes one of these legacies inoperative, parol evidence will be received; its effect being not to show that the testator did not mean what he saidj but on the contrary, to prove that- he did mean what he had expressed.^ In like manner, parol evi- dence is received to repel the presumption against an exec- utor's title to the residue, from the fact that a legacy has been given to him. So also to repel the presumption, that a portion is satisfied by a legacy;^ and in some cases, that the portionment of a legatee was intended as an ademption of the legacy.* 1 2 Poth. on Obi. by Evans, App. No. xvi. p. 184 ; Coote v. Boyd, 2 Bro. C. R. 522 ; Bull. N. P. 297, 298 ; Mann v. Mann, 1 Johns. Ch. 231. 2 Gresley on Evid. 210 ; Hurst v. Beach, 5 Madd. R. 360, per Sir J. Leach, V. C. 3 5 Madd. R. 860; 2 Poth. on Obi. by Evans, App. No. xvi. p. 184; Elli- son V. Cookson, 1 Ves. 100; Clinton v. Hooper, Id. 173. So, to rebut an implied trust. Livermore v. Aldrioh, 5 Cush. 431. 4 Kirk V. Eddowes, 8 Jur. 530. As the further pursuit of this point, as well as the consideration of the presumed revocation of a will, by a subse- CHAP. XV.] ADMISSIBILITY 0¥ PAROL EVIDENCE. 423 § 296 a. Courts of Equity also admit parol evidence to contradict or vary a writing, where it is founded in a mis- take of material facts, and it would be unconscientious or unjust to enforce it against either party, according to its expressed terms. Thus, if the plaintiff seeks a specific per- formance of the agreement, the defendant may show that such a decree would be against equity and justice, by parol evidence of the circumstances, even though they contradict the writing. So, if the agreement speaks, by mistake, a dif- ferent language from what the parties intended, this may be shown in a bill to reform the writing' and correct the mistake. In short, wherever the active agency of a Court of Equity is invoked, specifically to enforce an agreement, it admits parol evidence to show that the claim is unjust, although such evi- dence contradicts that which is written. Whether Courts of Equity will sustain a claim to reform a writing, or to estab- lish a mistake in it, by parol evidence, and for specific per- formance of it when corrected, in one and the same bill, is still an open question. The English authorities are against it ; but in America their soundness is strongly questioned.^ So, also, if a grantee fraudulently attempts to convert into an absolute sale that which was originally meant to be a security for a loan, the original design of the conveyance, though contrary to the terms of the writing, may be shown by parol.^ § 297, Having thus explained the nature of the rule under consideration, and shown that it only excludes evidence of the language of the party, and not of the circumstances in which he was placed, or of collateral facts, it may be proper quent marriage and the birth of issue, does not consist with the plan of this treatise, the reader is referred to 1 Roper on Legacies, by White, p. 317- 353; Gresley on Evid. p. 209-218; 6 Cruise's Dig. tit. 38, ch. 6, § 45-57, and notes by Greenleaf, [2d ed. (1857,) Vol. 3, p. 104, and notes;] 1 Jarm. on Wilis, ch. 7, and notes by Perkins. See also post, Vol. 2, §§ 684, C85, [7th ed. (1858.)] 1 1 Story, Eq. Juriap. § 152-161 ; Gresley on Evid. 205-209. 2 Morris v. Nixon, 17 Pet. 109. - See Jenkins v. Eldridge, 3 Story, K. 181, j 284-287. 424 LAW OF EVIDENCE. [PART II, to consider the case of ambiguities, both latent and patent. The leading rule on this subject is thus given by Lord Bacon : Ambiguitas verborum latens verificatione suppletv/r ; nam quod ex facto oritur ambiguum, verificatione facti tollitwr} Upon which he remarks, that " there be two sorts of ambi- guities of words : the one is ambiguitas patens, and the other latens. Patens is that which appears to be ambiguous upon the deed or instrument ; latens is that which seemeth certain and without ambiguity, for anything that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity. Ambiguitas patens is never holpen by averment ; and the reason is, be- cause the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law ; for that were to make all deeds hollow -and subject to averments, and so, in eflfect, that to pass without deed, which the law appointeth shall not pass but by deed. Therefore, if a man give land to J. D. and J. S. et hercedibus, and do not limit to whether of their heirs, it shall not be supplied by averment to whether of them the intention was (that) the inheritance should be limited." " But if it be ambiguitas latens, then otherwise it is ; as if I grant my manor of S. to .T. F. and his heirs, here appeareth no ambiguity at all. But if the truth be that I have the manors both of South S. and North S., this ambi- guity is matter in fact ; and therefore it shall be holpen by averment, whether of them it was that the party intended should pass."^ 1 Bacon's Maxims, Reg. 23, [25.] 2 See Bacon's Law Tracts, pp. 99, 100. And see Miller v. Travers, 8 Bing. 244; Supra, § 290; Reed v. Prop'rs of Lock."!, &c. 8 How. S. C. Rep. 274. Where a bill was drawn expressing £200 in the body in words, but £245 in figures in the margin, it was held that the words in the body must be taken to be the true amount to be paid ; and that the ambiguity created by the figures in the margin was patent, and could not be explained by parol. Saunderson v. Piper, 5 Bing. N. C. 425 ; [Lathrop v. Blake, 3 Foster, 46. In Sargent v. Adams, 3 Gray, 72, 77, the question arose how far an agreement in writing to let for a term of years " the ' Adams House,' so called, situate on Washington Street, in Boston, and numbered 371 on said Washington Street," could be explained by parol. The defendant had fitted up an old CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 426 § 298. But here it is to be observed, that words cannot be said to be ambiguous because they are unintelligible to a tavern as a hotel, under the_ name of the " Adams House,'' on Washington Street. The entrance to the hotel was from said street, and was numbered 371. The rest of the ground-floor of the building was fitted up for stores, which were numbered from 1 to 5, Adams House, and were, at the time of making the agreement, severally occupied by different tenants. The de- fendant tendered, in pursuance of the above agreement, a lease duly executed, of the hotel known as the Adams House, but not including the stores, which the plaintiff refused to accept, and subsequently brought this action to recover a sum of money previously paid by him to the defendant, in part performance of the agreement. The defendant, to show that he had complied with his obUgations under the agreement, by tendering a proper lease, offered to prove by parol,, that the original agreement was that the lease should include only the hotel proper and not the stores ; and he was permitted so to do. The portion of the opinion of the Court, by Shaw, C. J., which is an exposition of what constitutes a latent ambiguity, was as follows: " What was embraced in the bond by the description ' Adams House ' ? It is not therein described as a hotel. The parties are indeed described as innholders ; but this, being a mere description of the persons, affords no light. It is built on the site of the old Lamb Tavern ; but that leads to no definite conclusion that it was itself a tavern. Looking at the mere contract itself, it might have been free from all ambiguity ; because, in applying the description, it must have appeared that there was an estate definitely de- scribed, and as well known by that name as the. Old State House or the Boylston Market House. It is purely matter of description, and must be established by evidence aliunde. But the facts detailed in this statement ^o show that there is an estate corresponding in part to the description, to wit, a house known as the Adams House, in Washington Street, cert^n parts of which had been previously, and up to the time and at the time of the con- tract, used and occupied as a hotel ; and certain other parts of it used and occupied for shops for the sale of goods, let to separate tenants, with no inte- rior communication, nor any other connection with the residue, as a hotel, than that of relative position, being supported by the same foundation and sheltered by the same roof. But this is common, especially in cities, with entirely distinct tenements or holdings. This description, therefore, so brief in its terms, when applied to the estate in question, leaves it in doubt whether these stores are excluded or included in the term ' Adams House.' But yet this is the whole of the description used in the bond, expressive of the subject-matter of the lease. " It is argued on the part of the plaintiff, that ' house ' means the whole of a house, and- not part of a house ; that it includes all upon the same foundation and covered by the same roof. This would be quite plausible, indeed an argument of considerable weight, if the term was used in its ge- 36* 426 LAW OF EVIDENCE. [PART II. man who cannot read ; nor is a written instrument ambig- uous or uncertain merely because an ignorant or unin- neric sense, as ' my house, situated in ' such a town, or such a street. But it is plainly used as a proper name, or specific designation ; and, taken in connection with the fact that hotels are so named, it leaves it still doubtful. If it had been a stipulation to convey in fee, instead of to lease, it would carry a much stronger conviction that it intended the soil, unque ad cesium. But as a hotel may be complete in all its parts without including separate tenements under it, and is often designated by the term house, — as the Tre- mont House, the Winthrofp House, and the like, — and as it looked simply to a term of years, with the furniture of the hotel, it leaves the matter ques- tionable. In ascertaining what is parcel, what are the monuments, bounds, abuttals, names of streets or places, it is always competent, and indeed often necessary, to go into parol evidence, or evidence aliimde. A very palpable instance arises in this very description, short as it is. The estate is described as situated on Washington Street. Should a modern conveyancer be trac- ing back this title, he would find an estate apparently the same in other respects, but described as standing on Newbury Street. He must seek abroad for evidence, which he would soon find, that not many years since the name of Newbury Street was changed to Washington Street. " In seeking for all surrounding circumstances to throw light on matter of description, the object is to obtain from the words used in the instrument; in the light of all such circumstances, the intent and meaning of the parties. In doing this, it is an established rule, that if some of the circumstances do not correspond with a probable exposition, they will not prevent its adop- tion, if, from the whole description, the meaning or intent of the contractor or devisor can be collected, under the maxim, falsa demonstratio non nocet. But in coming to apply the description to the contract, and after all these means of jexposition have been exhausted, there may remain an uncertainty in such application ; this constitutes a latent ambiguity ; and then the law is well settled that parol evidence is admissible to explain what was intended. " And upon consideration of the evidence, the Court are of opinion that this constituted a case of latent ambiguity, as that is understood and ex- plained in this department of the law. The brief description ' The Adams House ' created no ambiguity on the face of the deed ; it was to be pre- sumed that there was a house or estate well known to which it would apply ; and there was no ambiguity in the language of the contract. One party in- tended to let and the other intended to hire a tenement, so named and so known. But when this designation came to be applied to the subject, there were two subjects to which, without any forced construction, it might apply, to wit, the site or soil on which the Lamb Tavern formerly stood, and the house built upon it; or it might apply to a tenement, consisting of suites of apartments other than the stores, which together made a complete hotel. It was a lease for years ; and such a tenement might be composed of parts of a CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 427 formed person may be unable to interpret it. It is ambig- uous only, when found to be of uncertain meaning by per- sons of competent skill and information. Neither is a Judge at liberty to declare an instrument ambiguous, because he is ignorant of a particular fact, art, or science, which was famil- iar to the person who used the words, and a knowledge of which is therefore necessary to a right understanding of the words he has used. If this were not so, then the question, whether a will or other instrument were ambiguous or uncer- tain, might depend not upon the propriety of the language the party has used, but upon the degree of knowledge, general or local, which a particular Judge might happen to possess ; nay, the technical accuracy and precision of a scientific man might occasion his intestacy, or defeat his contract. Hence it follows that no Judge is at liberty to pronounce an instrument ambiguous or uncertain, until he has brought to his aid, in its interpretation, all the lights afforded by the collateral facts and circumstances, which, as we have shown, may be proved by parol.^ § 299. A distinction is further to be observed, between the building dividnd horizontally, as well as by metes and bounds on the surface ; though, were it a deed in fee, it would be construed otherwise. The stores, being numbered 1, 2, 3, 4, and 5, Adams House, would simply show that they were parts of the building ; but their being wholly detached, without any interior communication, and built, as the case finds, under the Adams House, would lead to a contrary conclusion. For this reason, we are of opinion that this was a latent ambiguity ; and, within the rule, parol evidence was admissible to explain it. 3 Stark. Ev. 1026. It tails under that class of cases where the very general description adopted in a contract will apply to two distinct subjects, and so there is a latent ambiguity. In the case of Doe V. Burt, 1 T. R. 701, the question was what passed by the terms of a lease, where it was contended upon the maxim cujus est solum ejus est ad codum et ad inferos, that a cellar under a portion of the leased premises should pass. Evidence aliunde was admitted. Mr. Justice Grose said, by way of illustra- tion, ' It might as well be contended that a lease "of a house in the Adelphi would pass the warehouses underneath.' The parol evidence being admitted, the case is put beyond all doubt by proof that the contract did not include the five stores in the lower story of the hotel." 1 See Wigram on the Interpretation of Wills, p. 174, pi. 200, 201. 428 LAW OF EVIDENCE. [PART 11. ambiguity of language and its inaccuracy. " Language," Vice-Chancellor Wigram remarks, " may be inaccurate without being ambiguous, and it may be ambiguous al- though perfectly accurate. If, for instance, a testator, having one leasehold house in a given place, and no other house, were to devise his freehold house there to A. B., the description, though inaccurate, would occasion no ambiguity. If, however, a testator were to devise an estate to John Baker, of Dale, the son of Thomas, and there were two per- sons to whom the entire description accurately applied, this description, though accurate would be ambiguous. It is obvious, therefore, that the whole of that class of cases in which an accurate description is found to be sufficient merely by the rejection of words of surplusage, are cases in which no ambiguity really exists. The meaning is certain, not- withstanding the inaccuracy of the testator's language. A Judge, in such cases, may hesitate long before he comes to a conclusion ; but if he is able to come to a conclusion at last, with no other assistance than the light derived from a knowl- edge of those circumstances, to which the words of the will expressly or tacitly refer, he does in eflfect declare that the words have legal certainty — a declaration which, of course, excludes the existence of any ambiguity. The language may be inaccurate ; but if the Court can determine the meaning of this inaccurate language, without any other guide than a knowledge of the simple facts, upon which — from the very nature of language in general — its meaning depends, the language, though inaccurate cannot be ambig- uous. The circurpstance, that the inaccuracy is apparent on the face of the instrument, cannot, in principle, alter the case." ^ Thus, in the will of NoUekens, the sculptor, it was provided that, upon his decease, " all the marble in the yard, the tools in the shop, bankers, mod, tools for carving," &c., should be the property of Alex. Goblet. The controversy was upon the word "mod;" which was a case of patent inaccuracy ; but the Court, with no guide to the testator's 1 Wigram on the Interpretation of Wills, pp. 175, 176, pi. 203, 204. CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 429 intention but his words, and the Icnowledge common to every vsrorking sculptpr, decided that the word in question suffi- ciently described the testator's models ; thus negativing the existence of any ambiguity whatever.^ § 300. The patent ambiguity, therefore, of which Lord Bacon speaks, must be understood to be that which remains uncertain to the Court, after all the evidence of surrounding circumstances and collateral facts, which is admissible under the rules already stated, is exhausted. His illustrations of this part of the rule are not cases of misdescription, either of the person or of the thing to which the instrument relates ; but are cases in which the persons and things being suffi- ciently described, the intention of the party in relation to them is ambiguously expressed.^ Where this is the case, no parol evidence of expressed intention can be admitted. In other words, and more generally speaking, if the Court, placing itself in the situation in which the testator or con- tracting party stood at the time of executing the instrumentj and with full understanding of the force and import of the words, cannot ascertain his meaning and intention from the language of the instrument thus illustrated, it is a case of incurable and hopeless uncertainty, and the instrument there- fore is so far inoperative and void.^ J Goblet V. Beachy, 3 Sim. 24 ; Wigi-am on the Interpretation of Wills, pp. 179, 18.'). Parol evidence is admissible to explain short and incomplete terms in a written agreement, which per se are unintelligible, if the evidence does not contradict what is in writing. Sweet v. Lee, 3 M. & G. 452 ; Farm. & Mech. Bank v. Day, 13 Verm. R. 36. 3 Wigram on the Interpretation of Wills, p. 179; Fish v. Hubbard, 21 Wend. 651. 3 Per Parsons, C. J., in Worthington i'. Hylyer, 4 Mass. 205 ; United States V. Cantrill, 4 Cranch, 167; 1 Jarman on Wills, 315; 1 Powell on Devises, (by Jarman,) p. 348 ; 4 Cruise's Dig. 255, tit. 32, ch. 20, § 60, . (Greenleaf's ed.) [Greenl. (2d ed. 1857,) Vol. 2, p. 609 and notes.] Patent/ ambiguities are to be dealt with by the Court alone. But where the meanJ 'j ing of an instrument becomes ambiguous, by reason of extrinsic evidence, it) is for the Jury to determine it. Smith v. Thompson, 18 Law J. 314; Doe V. Beviss, Id. 628. See, supra, § 280. 430 LAW OF EVIDENCE. [PAET II. § 301. There is another class of cases, so nearly allied to these as to require mention in this place, namely, those in which, upon applying the instrument to its subject-matter, it appears that in relation to the subject, whether person or thing, the description in it is true in part, but not true in every particular. The rule, in such cases, is derived from the maxim : Falsa demonstratio non nocet, cum de corpore constat} Here so much of the description as is false is rejected ; and the instrument will take effect, if a sufficient description remains to ascertain its application. It is essen- tial, that enough remains to show plainly the intent.^ " The rule," said Mr. Justice Parke,^ " is clearly settled, that when there is a sufficient description set forth of premises, by giv- ing the particular name of a close, or otherwise, we may reject a false demonstration ; but, that if the premises be described in general terms, and a particular description be added, the latter controls the former." It is not, however, because one part of the description is placed, first and the other last in the sentence ; but because, taking the whole together, that intention is manifest. For, indeed, " it is vain to imagine one part before another ; for though words can neither be spoken nor written at once, yet the mind of the author comprehends them at once, which gives vitam et modum to the sentence." * Therefore, under a lease of " all that part of Blenheim Park, situate in the county of Oxford, now in the occupation of one S., lying" within certain speci- fied abuttals, " with all the houses thereto belonging, which are in the occupation of said S.," it was held, that a house lying within the abuttals though not in the occupation of S., 16 T. E. 676; Broom's Maxims, p. 269; Bac. Max. Reg. 25. And see Just. Ins. lib. 2, tit. 20, § 29. Siquidem in nomine, oognomine, prsenomine, agnomlne legatarii, testator erraverit, cum de persona constat, nihilominus valet legatum ; idemque in hteredibus servatur ; et rect6 : nomina enim significandorum hominum gratia reperta sunt ; qui si alio quolibet modo in- telligantur, nihil interest. 2 Doe V. Hubbard, 15 Ad. & EI. 240, 241, 246, N. S.; [Peaslee i>. Gee, 19 N. H. 273.] 3 Doe d. Smith v. Galloway, 5 B. & Ad. 43, 51. * Stukeley v. Butler, Hob. 171. CHAP. XV.] ADMISSIBILITY OS PAROL EVIDENCE. 431 would pass.^ So, by a devise of " the farm called Trogue's Farm, now in the occupation of C," it was held, that the whole farm passed, though it was not all in C.'s occupation.^ Thus, also, where one devised all his freehold and real estate " in the county of Limerick and in the city of Limerick ; " and the testator had no real estates in the county of Limer- ick, but his real estates consisted of estates in the county of Clare, which was not mentioned in the wiU, and a small estate in the cit^ of Limerick, inadequate to meet the charges in the will; it was held, that the devisee could not be allowed to show, by parol evidence, that the estates in the county of Clare were inserted in the devise to him, in the first draft of the will, which was sent to a conveyancer, to make certain alterations, not affecting those estates; that, by mistake, he erased the words " county of Clare ; " and that the testator, after keeping the will by him for some time, executed it, without adverting to the alteration as to that county.^ And so, where land was described in a 1 Doe d. Smith v. Galloway, 5 B. & Ad. 43. 2 Goodtitle v. Southern, 1 M. & S. 299. 3 Miller v. Travers, 8 Bing. 244 ; Doe v. Chichester, 4 Dow's P. C. 65 ; Doe V. Lyford, 4 M. & S. 550. The opinion of the Court in Miller v. Tra- vers, by Tindal, C. J., contains so masterly a discussion of the doctrine in question, that no apology seems necessary for its insertion entire. After stating the case with some preliminary remarks, the learned Chief Justice propeeded as follows : " It may be admitted that, in all cases in which a difficulty arises in applying the words of a will to the thing which is the subject-matter of the devise, or to the person of the devisee, the difficulty or ambiguity, which is introduced by the admission of extrinsic evidence, may be rebutted and removed by the production of further evidence upon the same subject calculated to explain what was the estate or subject-matter really intended to be devised, or who was the person really intended to take under the will ; and this appears to us to be the extent of the maxim, ' Ambiguitas verborum latens, verificatione suppletur.' But the cases to which this con- struction applies will be found to range themselves into two separate classes, distinguishable from each other, and to neither of which can the present case be referred. The first class is, where the description of the thmg devised, or of the devisee, is clear upon the face of the will; but upon the death of the testator, it is found that there are more than one estate or subject-matter of devise, or more than one person, whose description follows out and fills the words used in the will. As, where the testator devises his manor of 432 LAW OF EVIDENCE. [PART 11. patent as lying in the county of M., and further described by reference to natural monuments ; and it appeared, that the Dale, and at his death it is found that he has two manors of that name, South Dale and North Dale ; or, where a man devises to his son John, and he has two sons of that name. In each of these cases respectively, parol evidence, is admissible to show which manor was intended to pass, and which son was intended to take. (Bac. Max. 23 ; Hob. R. 32 ; Edward Altham's case, 8 Rep. 155.) The other class of cases is that, in which the description contained in the will of the thing intended to be devised, or of the person who is intended to take, is true in part, but not true in every particular. As, where an estate is devised called A, and is described as in the occupation of B, and it is found, that, though there is an estate called A, yet the whole is not in B's occupation ; or, where an estate is devised to a person, whose surname or christian name is mistaken ; or whose description is imperfect or inaccurate ; in which latter class of cases parol evidence is admissible to show what estate was intended to pass, and who was the devisee intended to take, provided there is sufficient indication of intention appearing on the face of the will to justify the application of the evidence. But the case now before the Court does not appear to fall within either of these distinctions. There are no words in the will which contain an imperfect, or, indeed, any descrip- tion whatever of the estates in Clare. The present case is rather one, in which the plaintiff" does not endeavor to apply the description contained in the will to the estates in Clare ; but, in order to make out such intention, is compelled to introduce new words and a new description into the body of the will itself. The testator devises all his estates in the county of Limerick and the city of Limerick. There is nothing ambiguous in this devise on the face of the will. It is found upon inquiry, that he has property in the city of Limerick, which answers to the description in the will, but no property in the county. This extrinsic evidence produces no ambiguity, no difficulty in the application of the words of his will to the state of the property, as it really exists. The natural and necessary construction of the will is, that it passes the estate which he has in the city of Limerick, but passes no estate in the county of Limerick, where the testator had no estate to answer that description. The plaintiff, however, contends, that he has a right to prove that the testator intended to pass, not only the estate in the city of Limerick, but an estate in a county not named in the will, namely, the county of Clare ; and that the will is to be read and construed as if the word Clare stood in the place of, or in addition to, that of Limerick. But this, it is manifest, is not merely calling in the aid of extrinsic evidence to apply the intention of the testator, as it is to be collected from the will itself, to the existing state of his property ; it is calling in extrinsic evidence to introduce into the will an in- tention, not apparent upon the face of the will. It is not simply removing a difficulty arising from a defective or mistaken description ; it is making the CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 433 land described by the monuments was in the county of H., and not of M. ; that part of the description which related to ■will speak upon a subject, on which it is altogether silent, and is the same in j effect as the filling up a blank, which the testator might have left in his will, j It amounts, in short, by the admission of parol evidence, to the making of a new devise for the testator, which he is supposed to have omitted. Now, the first objection to the introduction of such evidence is, that it is inconsistent with the rule, which reason and sense lay down, and which has.been univer- sally established for the construction of wills, namely, that the testator's / intention is to be collected from the words used in the will, and that words j which he has not used cannot be added. Denn v. Page, 3 T. R. 87. But ' it is an objection no less strong, that the only mode of proving the alleged intention of the testator is by setting up the draft of the will against the exe- cuted will itself. As, however, the copy of the will which omitted the name of the county of Clare, was for some time in the custody of the testator, and therefore open for his inspection, which copy was afterwards executed by him, with all the formalities required by the statute of frauds, the presump- tion is, that he must have seen and approved of the alteration, rather than that he overlooked it by mistake. It is unnecessary to advert to the danger of allowing the draft of the will to be set up, as of greater authority to evince the intention of the testator than the will itself, after the will has been solemnly executed, and after the death of the testator. If such evidence is admissible to intioduoe a new subject-matter of devise, why not also to introduce the name of a devisee, altogether omitted in the will ? If it is admissible to introduce new matter of devise, or a new devisee, why not to strike out such as are contained in the executed will ? The effect of such . evidence in either case would be, that the will, though made in form by the / testator in his lifetime, would really be made by the attorney after his I death ; that all the guards intended to be introduced by the statute of frauds would be entirely destroyed, and the statute itself virtually repealed. And upon examination of the decided cases, on which the plaintiff has relied in argument, no one will be found to go the length of supporting the proposition which he contends- for. On the contrary, they will all be found consistent with the distinction above adverted to, — that an uncertainty which arises from applying the description contained in the will, either to the thing devised or to the person of the devisee, may be helped by parol evidence ; but that a new subject-matter of devise, or a new devisee, where the will is entirely silent upon either, cannot be imported by parol evidence into the will itself. Thus, in the case of Lowe v. Lord Huntingtower, 4 Russ. 581, n., in which it was held, that evidence of collateral circumstances was admissible, as, of the several ages of the devisees named in the will, of the fact of their being married or unmarried, and the like, for the purpose of ascertaining the true construction of the will ; such evidence, it is to be observed, is not admitted VOL. I. 87 434 LAW OF EVIDENCE. [PART II. the county was rejected. The entire description in the pat- ent, said the learned Judge, who delivered the opinion of to introduce new words into the will itself, but merely to give a construJtiou to the words used in the will, consistent with the real state of his property and family; the evidence is produced to prove facts, which, according to the language of Lord Coke, in 8 Rep. 155, 'stand well with the words of the will.' The case of Slanden v. Standen, 2 Ves. 589, decides no more, than that a devise of all the residue of the testator's real estate, where he has no real estate at all, but has a power of appointment over real estate, shall pass such estate, over which he has the power, though the power is not J referred to. But this proceeds upon the principle, that the will would be (altogether inoperative, unless it is taken that, by the words used in the will, the testator meant to refer to the power of appointment. The case of Mosley V. Massey and others, 8 East, 149, does not appear to bear upon the question now under consideration. After the parol evidence had established, that the local description of the two estates mentioned in the will had been transposed by mistake, the county of Radnor having been apphed to the estate in Mon- mouth, and vice versa ; the Court held, that it was sufficiently to be collected from the words of the will itself, which estate the testator meant to give to the one devisee, and which to the other, independent of their local descrip- tion ; all, therefore, that was done, was to reject the local description, as unnecessary, and not to import any new description into the will. In the case of Selwood v. Mildway, 3 Ves. 306, the testator devised to his wife part of his stock in the 4 per cent, annuities of the Bank of England ; and it was shown by parol evidence, that at the time he made his will he had no stock in the 4 per cent, annuities, but that he had some which he had sold out and had invested the produce in long annuities. And in this case it was held, that the bequest was in substance a bequest of stock, using the words as a denomination, not as the identical corpus of the stock ; and as none could be found to answer the description but the long annuities, it was held, that such stock should pass, rather than the will be altogether inoperative. This case is certainly a very strong one ; but the decision appears to us to range itself under the head, that ' falsa demonstratio non nocet,' where enough appears upon the will itself to show the intention, after the false description, is rejected. The case of Goodtitle v. Southern, 1 M. & 8. 299, falls more closely within the principle last referred to. A devise ' of all that my farm called Trogue's Farm, now in the occupation of A. C Upon looking out for the farm devised, it is found that part of the lands which con- stituted Trogue's Farm, are in the occupation of another person. It was held, that the thing devised was sufficiently ascertained by the -devise of Trogue's Farm,' and that the inaccurate part of the devise might be rejected as sur- plusage. The case of Day v. Trigg, 1 P. W. 286, ranges itself precisely in the same class. A devise of all ' the testator's freehold houses in Alders- gate street,' when in fact he had no freehold, but had leasehold houses there. CHAP. XV.] ADMISSIBILITY OE PAROL EVIDENCE. 435 the Court, must be taken, and the identity of the land ascer- tained by a reasonable construction of the language used. The devise was held in substance and effect to be a devise of his bouses there ; and that as there were no freehold houses there to satisfy the descrip- tion, the word ' freehold' should rather be rejected, than the will be totally void. But neither of these oases aiTords any authority in favor of the plain- tiff; they decide only that, where there is a sufficient description in the will to ascertain the thing devised, a part of the description, which is inaccurate, may be rejected, not that anything may be added to the will ; thus following the rule laid down by Anderson, C. J., in Godb. E. 131, — ' An averment to take away surplusage is good, but not to increase that which is defective in the will of the testator.' On the contrary, the cases against the plaintiff's construction appear to bear more closely on the point. In the first place, it is well established, that where a complete blank is left for the name of the legatee or devisee, no parol evidence, however strong, will be allowed to fill it up as intended by the testator. Hunt v. Hort, 3 Bro. C. C. 311, and in many other cases. Now the principle must be precisely the same, whether it is the person of the devisee, or the estate or thing devised, which is left altogether in blank. And it requires a very nice discrimination to distin- guish between the case of a will, where tlie description of the estate is left altogether in blank, and the present case, where there is a total omission of the estates in Clare. In the case of Doe d. Oxenden v. Chichester, 4 Dow, P. C. 65, it was held by the House of Lords, in affirmance of the judgment below, that in the case of a devise of ' my estate of Ashton,' no parol evi- dence was admissible to show, that the testator intended to pass not only his lands in Ashton, but in the adjoining parishes, which he had been accus- tomed to call by the general name of his Ashton estate. The Chief Justice of the Common Pleas, in giving the judgment of all the Judges, says, ' If a testator should devise his lands of or in Devonshire or Somersetshire, it would be impossible to say, that you ought to receive evidence, that his in- tention was to devise lands out of those counties.' Lord Eldon, then Lord Chancellor, in page 90 of the Report, had stated in substance the same opin- ion. The case, so put by Lord Eldon and the Chief Justice, is the very case now under discussion. But the case of Newburgh v. Newburgh, de- cided in the House of Lords on the 16th of June, 1825, appears to be in point with the present. In that case the appellant contended, that the omis- sion of the word ' Gloucester,' in the will of the late Lord Newburgh, pro- ceeded upon a mere mistake, and was contrary to the intention of the testa- tor, at the time of making his will, and insisted that she ought to be allowed to prove, as well from the context of the will itself, as from other extrinsic evidence, that the testator intended to devise to her an estate for life as well in the estates in Gloucester, which was not inserted in the will, as in the county of Sussex, which was mentioned therein. The question, ' whether parol evidence was admissible to prove such mistake, for the purpose of 436 LAW OF EVIDENCE. [PART II. K there be a repugnant call, which, by the other calls in the patent, clearly appears to have been made through mistake, that does not make void the patent. But if the land granted be so inaccurately described as to render its identity wholly uncertain, it is admitted that the grant is void.^ So, if lands are described by the number or name of the lot or parcel, and also by metes and bounds, and the grantor owns lands answering to the one description and not to the other, the description of the lands which he owned will be taken to be the true one, and the other rejected as falsa demonstratio? correcting the will and entitling the appellant to the Gloucester estate, as if the word " Gloucester " had been inserted in the will,' was submitted to the Judges, and Lord Chief Justice Abbott declared it to be the unanimous opinion of those who had heard the argument that it could not. As well, therefore, upon the authority of the cases, and more particularly of that which is last referred to, as upon reason and principle, we think the evi- dence offered by the plaintiff would be inadmissible upon the trial of the issue." 1 Boardman v. Reed and Ford's Lessees, 6 Peters, 328, 345, per Mc- Lean, J. 2 Loomis V. Jackson, 19 Johns. 449 ; Lush v. Druse, 4 Wend. 313 ; Jack- son V. Marsh, 6 Cowen, 281 ; Worthington v. Hylyer, 4 Mass. 196 ; Blague V. Gold, Cro. Car. 447; Swift v. Eyres, Id. 548. So, where one devised " all that freeJiold farm called the Wick Farm, containing 200 acres or there- abouts, occupied by W. E. as tenant to me, with the appurtenances," to uses applicable to freehold property alone ; and at the date of the will, and at the death of the testator, W. E. held, under a lease from him, 202 acres of land, which were described in the lease as the Wick Farm, but of which twelve acres were not freehold, but were leasehold only ; it was held that these twelve acres did not pass by the lease. Hall v. Fisher, 1 CoUyer, R. 47. The object in cases of this kind is, to interpret the instrument, that is, to as-, certain the intent of the parties. The rule to find the intent is, to give most effect to those things about which men are least liable to mistake. Davis v. Rainsford, 17 Mass. 210; Mclver v. Walker, 9 Cranch, 178. ' On this prin- ciple, the things usually called for in a grant, that is, the things by which the land granted is described, have been thus marshalled. First. The high- est regard is had to natural boundaries. Secondly. To lines actually run, and corners actually marked at the time of the grant. Thirdly. If the lines and courses of an adjoining tract are called for, the lines will be extended to them, if they are sufficiently established, and no other departure from the deed is thereby required ; marked lines prevailing over those which are not marked. Fourthly. To courses and distances ; giving preference to the one or the other, according to circumstances. See Cherry v. Slade, 3 Murphy, CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 437 § 302. Returning, now to the consideration of the general rule, that extrinsic verbal evidence is not admissible to con- tradict or alter a written instrument, it is further to be ob- served, that this rule does not exclude such evidence, when it is adduced to prove that the written agreement is totally discharged. If the agreement be by deed, it cannot, in gen- eral, be dissolved by any executory agreement of an inferior 82; Dogan v. Seekright, 4 Hen. & Munf. 125, 130; Preston v. Bowmar, 6 Wheat. 582 ; Loring v. Norton, 8 Greenl. 61 ; 2 FlintofF on Real Property, 537, 538 ; Nelson v. Hall, 1 McLean's R. 518 ; Wells v. Crompton, 3 Rob. ■ Louis. R. 171 ; [Kellogg v. Smith, 7 Gush. 375, 379-384 ; Newhall v. Ireson, 8 lb. 595; Haynes v. Young, 36 Maine, 657.] And in determining the lines of old surveys, in the absence of any monuments to be found, the vari- ation of the needle, from the true meridian, at the date of the original sur- vey, should be ascertained ; and this is to be found by the Jury, it being a question of fact, and not of la,w. Burgin v. Chenault, 9 B. Monroe, 285 ; 2 Am. Law Journ. 470, N. S. Monuments mentioned in the deed, and not then existing, but which are forthwith erected by the parties, in order to conform to the deed, will be regarded as the monuments referred to, and will control the distances given in the deed. Makepeace h. Bancroft, 12 Mass. 469 ; Davis v. Rainsford, 17 Mass. 207 ; [Blaney v. Bice, 20 Pick. 62 ; Cleaveland v. Flagg, 4 Cush. 76, 81 ;J Leonard v. Morrill, 2 N. Hamp. 197. And if no monuments are mentioned, evidence of long-continued occu- pation, though beyond the given distances, is admissible. Owen v. Bar- tholomew, 9 Pick. 520. If the description is ambiguous or doubtful, parol evidence of the practical construction given by the parties, by acts of occu- pancy, recognition of monuments or boundaries, or otherwise, is admissible in aid of the interpretation. Stone v. Clark, 1 Met. 378; [Kellogg w. Smith, 7 Cush. 375, 383 ; Waterman v. Johnson, 13 Pick. 261 ; Frost v. Spaulding, 19 Pick. 445 ; Clark v. Munyan, 22 Pick. 410 ; Crafts v. Hibbard, 4 Met. R. 438; Civil Code of Louisiana, art. 1951; Wells v. Compton, 3 Rob. Louis. R. 1 71. Words necessary to ascertain the pre^iises must.be retained ; but words not . necessary for that purpose may be rejected, if inconsistent with the others. Worthington v. Hylyer, 4 Mass. 205 ; Jackson v. Sprague, 1 Paine, 494 ; Vose v. Handy, 2 Greenl. 322. The expression of quantity is descriptive, and may well aid in finding the intent, where the bounda- ries are doubtful. Mann v. Pearson, 2 Johns. 37, 41 ; Perkins v. Web- ster, 2 N. H. 287; Thorndike v. Richards, 1 Shepl. 437; Allen v. Allen, 3 Shepl. 287; Woodman v. Lane, 7 N. H. 241 ; Pernam v. Weed, 6 Mass. 131 ; Riddick v. Leggatt, 3 Murphy, 539, 544 ; Supra, § 290. See also 4 Cruise's Dig. tit. 32, c. 21, § 31, note, (Greenleaf's ed.) [2 Greenleaf's ed. (1856,) Vol. 2, p. 628-641, and notes,] where this subject is more fully considered. 37* 438 LAW OF EVIDENCE. [PART U nature ; but any obligation by writing not under seal, may be totally dissolved, before breach, by an oral agreement.^ And there seems little room to doubt, that this rule will apply, even to those cases where a writing is by the statute of frauds made necessary to the validity of the agreement.^ But where there is an entire agreement in writing, consist- ing of divers particulars, partly requisite to be in writing by the statute of frauds, and peirtly not within the statute, it is not competent to prove an agreed variation of the latter part, by oral evidence, though that part might, of itself, have been good without writing.^ § 303. Neither is the rule infringed by the admission of oral evidence to prove a new and distinct agreement, upon a new consideration, whether it be as a substitute for the old, or in addition to and beyond it. And if subsequent, and involving the same subject-matter, it is immaterial whether the new agreement be entirely oral, or whether it refers to 1 Bull. N. P. 152 ; Milword v. Ingram, 1 Mod. 206 ; 2 Mod. 43, S. C; Edwards v. Weeks, 1 Mod. 262; 2 Mod. 259, S. C; 1 Freera. 230, S. C; Lord Milton u. Edgeworth, 5 Bro. P. C. 318 ; 4 Cruise's Dig. tit. 32, c. 3, §61; Clement v. Durgin, 5 Greenl. 9; Cottrill v. Mj-riok, 3 Fairf. 222; Ratcliff V. Pemberton, 1 Esp. 85 ; Fleming v. Gilbert, 3 Johns. 531. But if the obligation be by deed, and there be a parol agreement in discharge of such obligation, if the parol agreement be executed, it is a good dis- charge. Dearborn v. Cross, 7 Cowen, 48. See also Littler v. Holland, 3 T. R. 390 ; Peytoe's case, 9 Co. 77 ; Kaye r. Waghorne, 1 Taunt. 428 ; Le Fevre v. Le Fevre, 4 S. & R. 241 ; Suydam v. Jones, 10 Wend. 180 ; Bar- nard V. Darling, 11 Wend. 27, 30. In equity, a parol rescission of a written contract, after breach, may be set up in bar of a bill for specific perform- ance. Walker v. Wheatley, 2 Humphreys, R. 119. By the law of Scot- land, no written obligation whatever can be extinguished or renounced, without either the creditor's oath, or a writing signed by him. Tait on Evid. p. 325. 2 Phil. & Am. on Evid. 776 ; 2 Phil. Evid. 363 ; Goss v. Ld. Nugent, 5 B. & Ad. 58, 65, 66, per Ld. Denman, C. J. ; Stowell v. Robinson, 3 Bing. N. C. 928 ; Cummings v. Arnold, 3 Met. 486 ; [Stearns v. Hall, 9 Cush. 31, 34.] 3 Harvey v. Grabham, 5 Ad. & El. 61, 74 ; Marshall v. Lynn, 6 M. & W. 109. \l CHAP. XV.] ADMISSIBILITY OF PAROL EVIDENCE. 439 and partially or" totally adopts the provisions of the former contract in writing, provided the old agreement be rescinded and abandoned.^ Thus, where one by an instrument under seal agreed to erect a building for a fixed price, which was not an adequate compensation, and, having performed part of the work, refused to proceed, and the obligee thereupon promised that, if he would proceed, he should be paid for his labor and materials, and should not suffer, anji he did so ; it was held that he might recover in assumpsit upon this verbal agreement.^ So, where the abandonment of the old contract was expressly mutual.^ So, where a ship was hired by a charter-party under seal, for eight months, commencing from the day of her sailing from Gravesend, and to be loaded at any British port in the English Channel ; and it was after- wards agreed by parol that she should be laden in the Thames, and that the freight should commence from her entry outwards at the custom-house ; it was held that an action would lie upon the latter agreement.* § 304. It is also well settled that, in a case of a simple contract in writing, oral evidence is admissible to show that, by a subsequent agreement, the time of performance was enlarged, or the. ^^ace of performance changed, the contract having been performed according to the enlarged time, or at the substituted place, or the performance having been pre- vented by the act of the other party ; or that the damages for 1 Burn V. Miller, 4 Taunt. 745 ; Foster v. Alanson, 2 T. R. 479 ; Shack v. Anthony, 1 M. & S. 573, 575 ; Sturdy v. Arnaud, 3 T. E. 596 ; Brigham v. Rogers, 17 Mass. 573, per Putnam, J. ; Heard v. Wadham, 1 East, 630, per Lawrence, J. ; 1 Chitty on PI. 93 ; Richardson v. Hooper, 13 Pick. 446 ; Brewster w. Countryman, 12 Wend. 446 ; Delacroix v. Biilkeley, 13 Wend. 71 ; Vicary v. Moore, 2 Watts, 456, 457, per Gibson, C. J. ; Brock v. Stur- divant, 3 Fairf. 81 ; Marshall v. Baker, 1 Appleton, R. 402 ; Chitty on Con- tracts, p. 88. [Where two distinct coatracts, for service on two distinct Toyages, are made at the same time, and one only is reduced to writing, the other may be proved by parol. Page v. Sheffield, 2 Curtis, C. C. 377 ; Cilley V. Tenney, 31 Vt. 401.] 2 Munroe v. Perkins, 9 Pick. 298. [See also Rand v. Mather, 11 Cush. IJ 3 Lattimore v. Harsen, 14 Johns. 330. 4 White V. Parkin, 12 East, 578 ; [Holmes v. Doane, 9 Cush. 135.] 440 LAW OF EVIDENCE. [PART II. non-performance were waived and remitted ;-^ or that it was founded upon an insufficient or an unlawful consideration, or was without consideration ; " or that the agreement itself was waived and abandoned.^ So, it has been held compe- tent to prove an additional and suppletory agreement, by parol; as, for example, where a contract for the hire of a horse was in writing, and it was further agreed by parol that accidents, occasioned by his shying, should be at the risk of the hirer.* A further consideration may also be proved by 1 Jones V. Barkley, 2 Doug. 684, 694 ; Hothamw. E. In. Co. 1 T. K. 638; Cummings v. Arnold, 3 Met. 486 ; Clement v. Durgin, 5 Greenl. 9 ; Keating V. Price, 1 Johns. Cas. 22 ; Fleming v. Gilbert, 3 Johns. 530, 531, per Thomp- son, J. ; Erwin v. Saunders, 1 Cowen, 249 ; Frost v. Everett, 5 Cowen,' 497 ; Dearborn v. Cross, 7 Cowen, 50; Neil v. Cheves, 1 Bailey, 537, 538, note (a) ; Cuff w. Penn, 1 M. & S. 21 ; Eobinson v. Baohelder, 4 N. Hamp. 4t) ; Medoraak Bank v. Curtis, 11 Shepl. 36 ; Blood v. Goodrich, 9 "Wend. 68 ; Youqua v. Nixon, 1 Peters, C. C. K. 221. But see Marshall v. Lynn, 6 M. & W. 109. 2 See supra, § 26, cases in note ; Mills v. Wyman, 3 Pick. 207 ; Erwin V. Saunders, 1 Cowen, 249; Hill v. Buekminster, 5 Pick. 391 ; Rawson v. Walker, 1 Stark. B. 361; Foster v. Jolly, 1 C. M. & R. 707, 708, per Parke, B. ; Staokpole v. Arnold, 11 Mass. 27, 32; Folsom v. Mussey, 8 Greenl. 400. 3 Ballard v. Walker, 3 Johns. Cas. 60 ; Poth. on Obi. pt. 3, ch. 6, art. 2, No. 636 ; Marshall v. Baker, 1 Appleton, 402 ; Eden v. Blake, 13 M. & W. 614. 4 Jeffery v. Walton, 1 Stark. K. 267. In a suit for breach of a written agreement to manufacture and deliver weekly to the plaintiff a certain quan- tity of cloth, at a certain price per yard, on eight months' credit, it was held, that the defendant might give in evidence, as a good defence, a subsequent parol agreement between him and the plaintiff, made on sufficient considera- tion, by which the mode of payment was varied, and that the plaintiff had refused to perform the parol agreement. Cummings u. Arnold, 3 Met. 486. See further, Wright v. Crookes, 1 Scott, N. S. 685. Where the action is for work and la.bor extra and beyond a written contract, the plaintiff will be held to produce the written contract, for the purpose of showing what was included in it. Buxton v. Cornish,, 12 M. & W. 426 ; Vincent v. Cole, 1 M. & Malk. 257. [It may be shown by parol that, at the time a promissory note was given by A to B for money lent, an agreement was made to pay , a certain sum as extra interest, Rohan u. Hanson, 11 Cush. 44, 46. The Idate of a contract in writing, when referred to in the body of the contract, /as fixing the time of payment, cannot be altered or varied by parol. Joseph V. Bigelow, 4 Cush. 82, 84. The time of performance of a written contract CHAP. XV.] ADMISSIBILITY OP PAROL EVIDENCE. 441 parol, if it is not of a different nature from that which is expressed in the deed.* And if the deed appears to be a voluntary conveyance, a valuable consideration may be proved by parol.^ § 305. In regard to receipts, it is to be noted that they may be either mere acknowledgments of payment or delivery, or they may also contain a contract to do something in relation to the thing delivered. In the former case, and so far as the receipt goes only to acknowledge payment or delivery, it is meiely primd facie evidence of the fact, and not conclusive; and therefore the fact which it recites may be contradicted by oral testimony. But in so far as it is evidence of a con- tract between the parties, it stands on the footing of all other contracts in writing, and cannot be contradicted or varied by parol.^ Thus, for example, a bill of lading, which partakes of both these characters, may be contradicted and explained in its recital, that the goods were in good order and well conditioned, by showing that their internal order and condition was bad ; and, in like manner, in any other fact which it erroneously recites ; but in other respects it is to be treated like other written contracts.* We here conclude the Second Part of this Treatise. within the statute of frauds, may be shown to have been enlarged by a sub- sequent parol agreement. Stearns v. Hall, 9 Cush. 31, 34.] 1 Clifford V. Turrill, 9 Jur. 683. [Miller v. Goodwin, 8 Gray, 542 ; Pierce V. Weymouth, 45 Maine, 481 ; Shoenberger v. Zook, 34 Penn. 24.] a Pott V. Todhunter, 2 CoUyer, Ch. Cas. 76, 84. 3 Stratton v. Rastall, T. K. 366 ; Alner v. George, 1 Campb. 392 ; Supra, § 26, note ; Stackpole v. Arnold, 11 Mass. 27, 32 ; Tucker v. Maxwell, Id. 143 ; Johnson v. Johnson, Id. 359, 363, per Parker, C. J. ; Wilkinson v. Scott, 17 Mass. 257; Hex v. Scammonden, 3 T. R. 474; Rollijis v. Dyer, 4 Shepl. 475 ; Brooks v. White, 2 Met. 283 ; Niles v. Culver, 4 Law Rep. 72, N. S. " The true view of the subject seems to be, that such cireum-i stances, as would lead a Court of Equity to set aside a contract, such as' fraud, mistake, or surprise, may be shown at law to destroy the effect of a\ receipt." Per Williams, J., in Fuller v. Crittenden, 9 Conn. 406 ; Supra, § 285. [A discharge on an execution is only a receipt and may be ex- plained by parol evidence. Edgerly v. Emerson, 3 Foster, 555 ; Supra, § 212. See also Brown v. Cambridge, 3 Allen, 474.] 4 Barrett v. Rogers, 7 Mass. 297; Benjamin v. Sinclair, 1 Bail. Stephenson, 7 Ad. & El. 185. The practice, however, is not uniform. See an early instance of letters rogatory, in 1 Roll. Abr. 530, pi. 15, temp. Ed. 1. The following form may be found in 1 Peters, C. C. R. 236, note (a.) United States of Amekica. • District of , ss. The President of the United States, to any Judge, or tribunal having jurisdiction of civil causes, in the city (or province) of , in the king- dom of , Greeting: **.*****» Whereas a certain suit is pending in our Court for I SEAL. * the district of -, in which A. B. is plaintiff, [or claim- ******** ^''*! against the ship ,] and C. J), is defendant, and it has been suggested to us that there are witnesses residing with- in your jurisdiction, without whose testimony justice cannot completely ,be done between the said parties ; we therefore request you that, in furtherance of justice, you will, by the proper and usual process of your Court, cause such witness or witnesses as shall be named or pointed out to you by the said parties, or either of them, to appear before you, or some competent per- son by you for that purpose -to be appointed and authorized; at a precise time and place, by you to be fixed, and there to answer, on their oaths and affirmations, to the several interrogatories hereunto annexed ; and that you will cause their depositions to be committed to writing, and returned to us under cover, duly closed and sealed up, together with these presents. And we shall be ready and willing to do the same for you in a similar case, when required. Witness, &c. VOL. I. 39 458 LAW OF EVIDENCE. [PART III. peculiar nature of its jurisdiction and proceedings enables it to induce the parties to adopt, by consent, where any doubt exists as to its inherent authority. The Courts of Common Law in England seem not to have asserted this power in a direct manner, and of their own authority ; but have been in the habit of using indirect means, to coerce the adverse party into a consent to the examination of witnesses, who were absent in foreign countries, under a commission for that pur- pose. These means of coercion were various ; such as put- ting off the trial, or refusing to enter judgment, as in case of nonsuit, if the defendant was the recusant party ; or by a stay of proceedings, till the party applying for the commis- sion could have recourse to a Court of Equity, by instituting a new suit there, auxiliary to the suit at taw'.^ But, subse- quently, the learned Judges appear not to have been satisfied that it was proper for them to compel a party, by indirect means, to do that which they had no authority to 'compel him to do directly ; and they accordingly refused to put off a trial for that purpose.^ This inconvenience was therefore remedied by statutes,^ which provide that, in all cases of the 1 Furly V. Newnham, Doug. 419 ; Anon, cited in Mostyn v. Fabrigas, Cowp. 174 ; 2 Tidd's Pr. 770, 810. 2 Cailland v. Vaughan, 1 B. & P. 210. See also Grant v. Ridley, 5 Man. & Grang. 203, per Tindal, C. J. ; Macaulay v. Shackell, 1 Bligh, 119, 130, 131, N.S. 3 13 Geo. 3, c. 63, and 1 W. 4, c. 22 ; Report of Commissioners on Chan- cery Practice, p. 109; Second Report of Commissioners on Courts of Com- mon Law, pp. 23, 24. [In Castelli v. Groome, 12 Eng. Law & Eq. R. 426, (16 Jur. 88,) it was held that the Court would not exercise its discretion to grant the commission to examine parties to the action under 1 Will. 4, u. 22, unless it is shown, by the party applying therefor, that it is necessary to the due administration of justice ; arid that it is not enough to show that the plaintiff or defendant lives out of the jurisdiction of the Court ; Lord • Campbell, C. J., sa:ying " it would lead to most vexatious consequences, if constant recourse could be had to this power ; and it would be so, in'all cases where the parties wished to avoid the process of examin-atipn here." Comp- ton, J., said, " The only question in my mind was, whether it was discretionary or not to grftnt the rule, but that has been settled by Ducket v. Williams,' 1 Cr. & J. 510, S. C. 9 Law J. Rep. Exch. 177, and it has always been held so. Formerly there was great difficulty in getting the commission allowed, and a plaintiff could only get it by resorting to Equity. To reUiedy this in- CHAP. I.] ATTENDANCE OF WITNESSES. 459 absence of witnesses, whether by sickness, or travelling out of the jurisdiction, or, residence abroad, the Courts, in their discretion, for the due administration of justice, may cause the witnesses to be examined under a commission issued for that purpose. In general, the examination is made by inter- rogatories, previously prepared ; but, in proper cases, the witnesses may be examined vivd voce, by the commissioner, who in that case writes down the testimony given ; or he may be examined partly in that manner and partly upon interrogatories.! § 321. In the United States, provisions have existed in the statutes of the several States, from a very early period, for the taking of depositions to be used in civil actions in the Courts of Law, in all cases where the personal attendance of the witness could not be had, by reason of sickness or other inability to attend ; and also in cases where the witness is about to sail on a foreign voyage, or to take a journey out of the jurisdiction, and not to return before the time of trial.^ convenience the act was passed." For cases under this statute see Bolin v. Mellidew, 5 Eng. Law & Eq. R. 387, as to practice in executing commis- sions abroad in administering oaths under foreign law ; Lumley v. Gyo, 22 lb. 367, in a case where the mode of examination differs from the English practice, and issuing a fresh commission where the former commission was ineffectual, by reason of the refusal of the witness to answer. In Davis v. Barrett, 7 lb. 207, the commisyoners' return, which omitted to state that the commissioners and their clerks had taken the oaths, and where the commis- sioners had not signed the interrogatories,' was allowed to be amended in these several particulars.] 1 2 Tidd's Pr. 810, 811 ; 1 Stark. Evid. 274-278; Phil. & Am. on Evid. p. 796-800; 2 Phil. Evid. 386, 387, 388; Pole v. Rogers, 3 Bing. N. C. 780; [Solaman v. Cohen, 3 Eng. Law & Eq. R. 585.] 2 See Stat. U. States, 1812, ch. 25, § 3 ; [2 Stat, at Large, (L. & B.'s ed.) 682.] In several of the United States, depositions may, in certain con- tingencies, be taken and used in criminal cases. See Arkansas Rev. Stat. 1837, ch. 44, p.- 238 ;, Indiana Rev.' Stat. 1843, cb. 54, §§ 39, 41 ; Missouri Rev. Stat. 1846, ch. 138, §§ 11, 14 ; Iowa Rev. Code, 1851, ch. 190, 191. [In Massachusetts, the defendant, after an issue of fact is joined on the in- dictment, may have a commission to take the testimony of a material wit- ness residing out of the State. Rev. Stat. ch. 136, § 32 ; Acts of 1851, ch. 71.] 460 LAW OF EVIDENCE. [PAKT III. Similar provisions have also been made in many of -the United States for taking the depositions of witnesses in per- petuam rei memoriam, without the aid of a Court of Equity, in cases where no action is pending. In these latter cases there is some diversity in the statutory provisions, in regard to the magistrates before whom the depositions may be taken, and in regard to some of the modes of proceeding, the details of which are not within the scope of this treatise. It may suffice to state that, generally, notice must be pre- viously given to all persons known to be interested in the subject-matter to which the testimony is to relate ; that the names of the persons thus summoned must be mentioned in the magistrate's certificate or caption, appended to the depo- sition ; and that the deposition is admissible only in case of the death or incapacity of the witness,^ and against those only who have had opportunity to cross-examine, and those in privity with them. § 322. In regard, also, to the other class of depositions, namely, those taken in civil causes, under the statutes alluded to, there are similar diversities in the forms of proceeding. In some of the States, the Judges of the Courts of Law are empowered to issue commissions, at chambers, in their dis- cretion, for the examination of witnesses unable or not com- pellable to attend, from any cfiuse whatever. In others, though with the like diversities in fofni, the party himself may, on application to any magistrate, cause the deposition of any witness to be taken, who is situated as described in the acts. In their essential features these statutes are nearly alike ; and these features may be collected from that part of. the Judiciary Act of the United States, and its supplements, which regulate this subject.^ By that act, when the testi. 1 The rule is the same in Equity, in regard to depositions taken de bene esse, because of the sickness of the witness. Weguelin v. Weguelin, 2 Curt. 263. 2 Stats. 1789, ch. 20, § 30 ; Stat. 1793, ch. 22, § ti ; [1 U. S. Stats, at Large, (L. & B.'s ed.) 88, 335.] This provision is not peremptory ; it only enables the party to take the deposition, if he pleases. Prouty v. Ruggles, 2 Story, R. 199; 4 Law Rep. 161. CHAP. I.] ATTENDANCE OF WITNESSES. 461 mony of a person is necessary in any civil cause, pending in a Court of the United States, and the person lives more than a hundred miles ^ from the place of trial, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district, and more than that distance from the place of trial, or is ancient, or very infirm, his deposition may be taken de bene esse; before any Judge of any Court of the United States, or before any Chancellor or Judge of any Superior Court of a State, or any Judge of a County Court, or Court of Common Pleas, or any Mayor or chief magistrate of any city ^ in the United States, not being of counsel, nor interested in the suit ; provided that a notification from the magistrate before whom the deposition is to be taken, to the adverse party, to be present at thp taking, and put interroga- tories, if he think fit,, be first served on him or his attorney, as either may be nearest, if either is within a hundred miles of the place of caption ; allowing time, after the service of the notification, not less than at the rate of one day, Sun- days exclusive, for every twenty miles' travel.^ The witness is to be carefully examined and cautioned, and sworn or affirmed to testify the whole truth,* and must subscribe the 1 These distances are various in the similar statutes of the States, but are generally thirty miles, though in some cases less. 2 In the several States, this authority is generally delegated to Justices of the Peace. 3 Under the Judiciary Act, § 30, there must be personal notice served upon the adverse party ; service by leaving a copy at his place of abode is not sufficient. Carrington v. Stimson, 1 Curtis, Ct. Ct. 437. The magis- trate in his return need not state the distance of the place of residence of the party or his attorney from the place where the deposition vfas taken. Voce V. Lawrence, 4 McLean, 203. To ascertain the proper notice in point of time to be givfen to the adverse party, the distance must be reck- oned from the party's residence to the place of caption. Porter v. Pills- bury, 36 Maine, 278. Where the certificate states simply that the adverse party was not personally present, a copy of the notice and" of the return of service thereof, should be annexed ; and if it is not annexed, and it does not distinctly appear that the adverse party was present either in person or by counsel, the deposition will be rejected. Carleton v. Patterson, 9 Foster, 580; see also Bowman v. Sanborn, 5 lb. 87.] ■* Where the State statute requires that the deponent shall be sworn to 39* 462 LAW OF EVIDENCE. [PART III. testimony by him given, after it has been reduced to writing by the magistrate, or by the deponent in his presence. The deposition, so taken, must be retained by the magistrate, until he shall deliver it with his own hand into the Court for whiqh it is taken ; or it must, together with a certificate of the causes or reasons for taking it, as above specified, and of the notice, if any, given to the adverse party, be by the magistrate sealed up, directed to the Court, and remain under his seal until it is opened in Court.^ And such wit- nesses may be compelled to appear and depose as above- mentioned, in the same manner as to appear and testify in ■ Court. Depositions, thus taken, may be used at the trial by either party, whether the witness was or was not cross-ex- amined,^ if it shall appear, to the satisfaction of the Court, testify to the truth, the whole truth, &c. " relating to the cause for which the deposition is to be taken," the omission of the magistrate in his certificate to state that the witness was so sworn, makes the deposition inadmissible ; and the defect is not cured by the addition that " after giving the deposition he was duly sworn thereto according to law." Parsons v. Huff, 38 Maine, 137; Brighton v. Walker, 35 lb. 132 ; Fabyan v. Adams, 15 N. H. 371. It should distinctly appear that the oath was administered where the witness was examined. Erskine v. Boyd, 35 Maine, 511.] * The mode of transmission is not prescribed by the statute ; and in prac- tice it is usual to transmit depositions by post, whenever it is most conven- ient ; in which ease the postages are included in the taxed costs. Prouty v. Kuggles, 2 Story, R. 199 ; 4 Law Reporter, 161. Care must be taken, how- ever, to inform the clerk, by a proper superscription, of the nature of the document enclosed to his care ; for, if opened by him out of Court, though by mistake, it will be rejected. Beal v. Thompson, 8 Cranch, 70. But see Law V. Law, 4 Greenl. 167. [A deposition not certified by the magistrate to have been signed by the deponent is admissible in the Federal Courts. Voce V. Lawrence, 4 McLean, 203 ; but unless it is certified to have been retained by the magistrate until sealed up and directed to the proper Court, it is inadmissible in such Courts. Shankwiker u. Reading, lb. 420.] 2 Dwight V. Linton, 3 Rob. Louis. R. 57. [Where the testimony of a wit- ness is substantially complete, a deposition (taken under a State statute), duly signed and certified, is not to be rejected, because the cross-exami- nation was unfinished in consequence of the sickness or death of the witness. If not so advanced as to be substantially complete, it must be rejected. Thus, where it appeared on the face of the deposition that the cross-ex- amination was not finished, the defendant having refused, in consequence of severe sickness of which he soon afterwards died, to answer the nineteenth CHAP, i.] ATTENDANCE OP WITNESSES. 463 that the witnesses are then dead, or gone out of the United" States,! O], ];nore than a hundred miles from the place of trial, or that by reason of age, sickness, bodily infirmity, or impris- onment, they are unable to travel and appear at Court. § 323. The provisions of this act being in derogation of the Common Law, it has been held that they must be strictly complied with.^ But if it appears on the face of the cross-interrogatory, which only asked for a more particular statement of facts to which the witness had testified, the deposition was held to have been prop- erly admitted. Fuller v. Rice, 4 Gray, 343 ; Valton v. National Loan, &c. Society, 22 Barb; 9.] 1 In proof of the absence of the witness, it has been held not enough to give evidence merely of inquiries and answers at his residence ; but, that his ab- sence must be shown by some one who knows the fact. Robinson v. Markis, 2 M. & Rob. 375. And see Hawkins v. Brown, 3 Rob. Louis. R. 310, [§ 323, note ; Weed v. Kellogg, 6 McLean, 44. Where the cause of taking the dep- osition was that the deponent was about to leave the State, &o., and a sub- poena had been issued at the time of the trial, to the deponent, to appear as a witness, upon ■vyhich a constable of the place where the deponent resided, had returned that he made diligent inquiry and search for the witness, and could not find him, it was held to be sufficient proof of the deponent's absence, so that the deposition could be used. Kinney v. Berran, 6 Cush. 394.] 2 Bell i>. Morrison, 1 Peters, 355 ; The Thomas & Henry v. The United States, 1 Brockenbrough, 367 ; Nelson v. The United States, 1 Peters, C. C. R. 235. The use of ex parte depositions, taken without notice, under this statute, is not countenanced by the Courts, where evidence o'f a more satis- factory character can be obtained. The views of the learned Judges on this subject have been thus expressed by Mr. Justice Grier: — " While we are on this subject, it will not be improper to remark, that when the Act of Con- gress of 1789 was passed, permitting ex parte depositions, without notice, to be taken where the witness resides more than a hundred miles from the place of trial, such a provision may have been necessary. It then required nearly as much time, labor, and expense to travel one hundred miles as it does now to travel one thousand. Now testimony may be taken and re- turned from Calitbrnia, or any part of Europe, on commission, in two or three months ; and in any of the States east of the Rocky Mountains in two or three weeks. There is now seldom any necessity for having recourse to this mode of taking testimony. Besides, it is contrary to the course of the Common Law ; and, except in cases of mere formal proof, (such as the signa- ture or execution of an instrument of writing,) or of some isolated fact, (such as demand of a bill, or notice to an indorser,) testimony thus taken is liable to great abuse. At best, it is calculated to elicit only such a partial statement 464 LAW OP EVIDENCE. [PART III. ■ deposition, or the certificate which accompanies it, that the magistrate before whom it was taken was duly authorized, within the statute, it is sufficient, in the first instance with- out any other proof of his authority ; ' and his certificate will be good evidence of all the facts therein sta]ted, so as to entitle the deposition to be read, if the necessary facts are therein sufficiently disclosed.^ In cases where, under the authority of an act of Congress, the deposition of a witness is taken de bene esse, the party producing the deposition must of the truth as may have the effect of entire falsehood. The person who prepares the witness and examines him, can generally have so much or so little of the truth, or such a version of it as will suit his case. In closely contested cases of fact, testimony thus obtained must always be unsatisfactory and liable to suspicion, especially if the party has had time and opportunity to take it in the regular way. This provision of the Act of Congress should never be resorted to, unless in circumstances of absolute necessity, or in the excepted cases we have just mentioned." See Walsh v. Rogers, 13 How. S. C. R. 286, 287. ' Ruggles !'. Bucknor, 1 Paine, 358 ; The Patapsco Ins. Co. v. Southgate, 5 Peters, 604 ; Fowler v. Merrill, 11 How. 375 ; [Palmer v. Fogg, 36 Maine, 868 ; Hoyt v. Hammekin, 14 How. U. S. 346 ; Fowler v. Merrill, 11 lb. 375 ; Lyon V. Ely, 24 Conn. 507. Where depositions are taken before a mayor and are certified by him, though without an official seal, the Court will pre- sume that he was mayor, unless the contrary be shown. Price v. Morris, 5 McLean, 4 ; see also Wilkinson v. Yale, 6 McLean, 16. Where it is made the duty of the magistrate taking a deposition to certify the reason for taking it, his certificate of the cause of taking is prima facie prooi' of the fact, and renders the deposition admissible, unless it is controlled by other evidence. West Boylston v. Sterling, 17 Pick. 126 ; Littlehale v. Dix, 11 lb. 365. Nor is it necessary that it should appear by the deposition or the certificate in what manner, or by what evidence, the magistrate was satisfied of the exist- ence of the cause of the taking. It is enough, if he certifies to the fact upon his official responsibility. Thus, where the magistrate duly certified that the deponent lived more than thirty miles from the place of trial, no evidence being offered to control the certificate, and the Court not being bound to take judicial notice of the distance of one place from another, it was held that the deposition was rightly admitted. Littlehale v. Dix, ub. supra. Where the magistrate certifies that the " cause assigned by the plaintiff," who was the party taking the deposition, for taking the same, was the depo- nent's being about to leave the Commonwealth, and not to return in time for the trial, it is proper that such party should show that the cause existed at the time of the trial. Kinney v. Berran, 6 Cush. 394.] 2 Bell V. Morrison, 1 Peters, 356. CHAP. I.] ATTENDANCE OF WITNESSES. 465 show affirmatively that his inability to procure the personal attendance of the witness still continues ; or, in other words, that the cause of taking the deposition remains in force. But this rule is not applied to cases where the witness re- sides more than a hundred miles from the place of trial, he being beyond the reach of compulsory process. If he resided beyond that distance when the deposition was taken, it is presumed that he continues so to do, until the party op- posing its admission shows that he has removed within the reach of a subpoena} 1 The Patapsco las. Co. v. Southgate, 5 Peters, 604, 616, 617, 618 ; Pet- tibone v. Derringer, 4 Wash. 215 ; 1 Stark. Evid. 277. [Where a deposition is taken under the Act of Congress, without notice, the adverse party, if dis- satisfied, should have it taken again. Goodhue v. Bartlett, 5 McLean, 186. Where the Federal Circuit Court adopts the law and practice of the State in taking depositions, it will be presumed to have adopted a modification thereof, which has been followed for a long time. But whatever be the State law, the Act of Congress is to prevail, which requires that the de- ponent should live one hundred miles from the Court. Curtis v. Central Eailroad, 6 McLean, 401. A few cases are added illustrating the rules of law and the practice of the Courts in regard to admitting or rejecting depositions. Depositions pf several witnesses, taken under one commission on one set of interrogatories, a part of which only are to be propounded to each witness, can be used in evidence. Fowler v. Merrill, 11 How. U. S. 375. If the words " before me," preceding the name of the magistrate before whom the deposition was taken and sworn, be omitted in the caption, the deposition is not admissible. Powers V. Shepard, 1 Foster, N. H. 60. Where one party takes a deposition on in- terrogatories, or portions of a deposition, for the purpose of meeting the tes- timony of a witness who has deposed, or testimony which he may expect the other party will produce, but does not intend to use the answers thereto, unless the other testimony is introduced, he must accompany the interroga- tories with a distinct notice in writing that his purpose is merely to meet the testimony of his adversary's witness or witnesses ; and if this is not done, the answers must be read to the Jury if required by the other party. This is the most eligible rule in «uch cases, and will save to each party all his just rights, and prevent all unfairness and surprise. By Metcalf, J., in Linfield V. Old Colony R. R. Corp. 10 Cush. 570. See McKelvy v. De Wolfe, 20 Penn. State R. 374. A deposition taken under a commission duly issued on "interrogatories to be put to M. H. B. of Janesville, Wisconsin, laborer," but which purports by its caption to be the deposition of M. H. B., of San- dusky, Ohio, and in which the deponent states his occupation to be that of peddler, is admissible in evidence, notwithstanding the variance, if it appears 466 ■ LAW OB EVIDENCE. [PAKT JII. § 324. By the act of Congress already cited,^ the power of the Courts of the United States, as Courts of Common Law, to grant a dedimus potestatem to take depositions, whenever it may be necessary, in order to prevent a failure or delay of justice, is expressly recognized ; and the Circuit Courts, when sitting as Courts of Equity, are empowered to direct deposi- tions to be taken in perpetuam rei memoriam, according to the usages in Chancery, where the matters to which they relate, are cognizable in those Courts. A later statute ^ has facilitated the taking of depositions in the former of these cases, by providing that when a commission shall be issued by a Court of the United States for taking the testimony of that the deponent is the same person to whom the interrogatories are ad- dressed. Smith V. Castles, 1 Gray, 108. The questions appended to a com- mission sent to Bremen were in English ; the commissioners returned the answers in German, annexed to a German translation of the questions ; the commission was objected to on the ground that the return should have been in E^iglish, or accompanied by an English translation ; but the objection was overruled ; and a sworn interpreter was permitted to translate the an- swers viva voce to the Jury. Kuhtman v. Brown, 4 B,ich. 479. Where a deposition is taken by a magistrate in another State, under a written agree- ment that it may be so taken upon the interrogatories and cross-interrogato- ries annexed to the agreement, such agreement operates only as a substitute for a commission to the magistrate named therein, and a waiver of objections to the interrogatories in point of form, and does not deprive either party of the right to object, at the trial, to the interrogatories and answers, as prov- ing facts by incompetent evidence. Atlantic Mutual Ins. Co. v. Fitzpatrick, 2 Gray, 279 ; Lord o. Moore, 37 Maine, 208. And to exclude the deposition on the ground of the interest of the deponent, it is not necessary that the objection should be taken before the magistrate. Whitney v. Heywood, 6 Cush. 82 ; Infra, § 421, note. Where the witness was interested at the time his deposition was taken, and a release to him was afterwards executed, the deposition was not admitted. Reed ». Rice, 25 Vt. 171 ; Ellis v. Smith, 10 Geo. 253. If the deponent is disqualified by reason of interest at the time of giving his deposition, and at the time of the trial the disqualification has been removed by statute, the deposition can be used in evidence. Haynes jj.Rowe, 40 Maine, 181. Where, after the deposition is taken, he becomes interested, in the event of the suit, by no act of his own, or of the party who offers his testimony, the deposition is admissible. Sabine v. Strong, 6 Met. 670.] 1 Stat. 1789, ch. 20, § 30. 2 Stat. 1827, ch. 4. See the practice and course of proceeding in these cases, in 2 Paine & Duer's Pr. p. 102-110 ; 2 Tidd's Pr. 810, 811, 812. CHAP. I.] ATTENDANCE OF WITNESSES. 467 a witness, at any place within the United States, or the ter- ritories thereof, the clerk of any Court of the United States, for the District or Territory where the place may be, may issue a subpmna for the attendance of the witness before the commissioner, provided the place be in the county where the witness resides, and not more than forty miles from his dwelling. And if the witness, being duly summoned, shall neglect or refuse to appear, or shall refuse to testify, any Judge of the same Court, upon proof of such contempt, may enforce obedience, or punish the disobedience, in the same manner as the Courts of the United States may do, in case of disobedience to their own process of subpana ad_ testifi- candum. Some of the States have made provision by law for the taking of depositions, to be used in suits pending in other States, by bringing the deponent within the operation of their own statutes against perjury; and national comity plainly requires the enactment of similar provisions in all civilized countries. But as yet they are far from being uni- versal ; and whether, in the absence of such provision, false swearing in such case is punishable as perjury, has been gravely doubted.^ Where the production of papers is re- quired, in the case of examinations under commissions issued from Courts of the United States, any Judge of a Court of the United States may, by the same statute, order the clerk to issue a subpoena duces tecum, requiring the wit- ness to produce such papers to the commissioner, upon the affidavit of the applicant to his belief that the witness pos- sesses the papers, and that they are material to his case ; and may enforce the obedience .and punish the disobedience of the witness, in the manner above stated. § 325. But independently of statutory provisions, Chan eery has power to sustain biUs, filed for the purpose of pre^ serving the evidence of witnesses in perpetuam rei memdriam. touching any matter w;hich cannot be immediately investi gated in a Court of Law, or where the evidence of a mate rial witness is likely- to be lost, by his death, or departure 1 Cailland d.' Vaughan, 1 B. & B. 210. 468 LAW OP EVIDENCE. [PAKT III. from the jurisdiction, or by any other cause, before the facts can be judicially investigated. The defendant, in such cases, is compelled to appear and answer, and the cause is brought to issue, and a commission for the examination of the witnesses is made out, executed, and returned, in the same manner as in other cases ; but no relief being prayed, the suit is never brought to a hearing ; nor will the Court ordinarily permit the publication of the depositions, except in support of a suit or action ; nor then, unless the witnesses are dead, or otherwise incapable of attending to be ex- amined.^ Smith's Chancery Prac. 284-286. CHAP II.] COMPETENCY OF WITNESSES. 469 CHA-PTER II. OF THE COMPETENCY OF WITNESSES. § 326. Although, in the ordinary affairs of life, tempta- tions to practice deceit- and falsehood may be comparatively few, and therefore men may ordinarily be disposed to believe the statements of each other ; yet, in judicial investigations, the motives to pervert the truth and to perpetrate falsehood and fraud are so greatly multiplied, that if statements were received with the same- undiscriminating freedom as in pri- vate life, the ends of justice could with far less certainty be attained. In private life, too, men can inquire and determine for themselves whom they will deal with, and in whom they will confide ; but the situation of Judges and Jurors renders it difficult, if not impossible, in the narrow compass of a trial, to investigate the character of witnesses ; and from the very nature of judicial proceedings, and the necessity of pre- venting the multiplication of issues to be tried, it often may happen that the testimony of a witness, unworthy of credit, may receive as much consideration as that of one worthy of the fullest confidence. If no means were employed totally to. exclude any contaminating influences from the fountains of justice, this evil would constantly occur. But the danger has always been felt, and always guarded against, in all civilized countries. And while all evidence is open to the objection of the adverse party, before it is admitted, it has been found necessary to the ends of justice, that certain kinds of evidence should be uniformly excluded.^ § 327. In determining what evidence shall be admitted 1 4 Inst. 279. 40 470 LAW OF EVIDENCE. [PAKT ni. and weighed by the Jury, and what shall not be received at all, or, in other words, in distinguishing between competent and incompetent witnesses, a principle seems to have been applied similar to that which distinguishes between conclu- sive and disputable presumptions of law,' namely, the expe- rienced connection between the situation of the witness, and the truth or falsity of his testimony. Thus, the law excludes as incompetent, those persons whose CAridence, in general, is .found more likely than otherwise to mislead Juries ; receiv- ing and weighing the testimony of others, and giving to it that degree of credit which it is found on examination to deserve. It is obviously impossible that any test of credibil- ity can be infallible. All that can be done is to approximate to such a degree of certainty as will ordinarily meet the jus- tice of the case. The question is not, whether any rule of exclusion may not sometimes shut out credible testimony ; but whether it is expedient that there should be any rule of exclusion at all. If the purposes of justice require that the decision of causes should not be embarrassed by statements generally found to be deceptive, or totally false, there must be some rule designating the class of evidence to be ex- cluded ; and in this case, as in determining the ages of dis- cretion, and of majority, and in deciding as to the liability of the wife, for crimes committed in company with the husband, and in numerous other instances, the Common Law has merely followed the common experience of mankind. It rejects the testimony (1.) of parties ; (2.) of persons deficient in understanding ; (3.) of persons insensible to the obliga- tions of an oath ; and (4.) of persons whose pecuniary inter- est is directly involved in the matter in issue ; not because they may not sometimes state the truth, but because it would ordinarily be unsafe to rely on their testimony.^ Other causes 1 Supra, §§ 14, 15. 2 " If it be objected, that interest in the matter in dispute might, from the bias it creates, be an exception to the credit, but that it ought not to be abso- lutely so to. the competency, any more than the friendship or enmity of a party, whose evidence is oiFered, towards either of the parties in the cause, or many other considerations hereafter to be intimated ; the general answer CHAP. II.] COMPETENCY OF WITNESSES. 471 concur, in some of these cases, to render the persons incom- petent, which will be mentioned in their proper places. We shall now proceed to consider, in their order, each of these classes of persons, held incompetent to testify ;' adding some observations on certain descriptions of persons, held incom- petent in particular cases. § 328. But here it is proper to observe, that one of the main provisions of the law, for securing the purity and truth of oral evidence, is, that it be delivered under the sanction of an oath. Men in general are sensible of the motives and re- straints of religion, and acknowledge their accountability to that Being, from whom no secrets are hid. In a Christian country it is presumed, that all the members of the commu- nity entertain the common faith, and are sensible to its influ- ences ; and the law founds itself on this presumption, while, in seeking for the best attainable evidence of every fact, in controvsrey, it lays hold on the conscience of the witness by this act of religion, namely, a public and solemn appeal to the Supreme Being for the truth of what he may utter. " The administration of an oath supposes that a moral and religious accountability is felt to a Supreme Being, and this is the sanction which the law requires upon the conscience, before it admits him to testify." ^ An oath is ordinarily de- may be this, that in point of authority no distinction is more absolutely set- tled ; and in point of theory, the existence of a direct interest is capable of being precisely proved ; but its influence on the mind is of a nature not to discover itself to the Jury ; whence it hath been held expedient to adopt a general exception, by which witnesses so circumstanced are free from temp- tation, and the cause not exposed to the hazard of the very doubtful esti- mate, what quantity of interest in the question, in proportion to the character of the witness, in any instance, leaves his testimony entitled to belief. Some, indeed, are incapable of being biased even latently by the greatest interest ; many Would betray the most solemn obligation and public confidence for an interest very inconsiderable. An universal exclusion, where no line short of this could have been drawn, preserves infirmity from a snare, and integ- rity from suspicion ; and keeps the current of evidence, thus far at least, clear and uninfected." 1' Gilb. Evid. by Loift, pp. 223, 224. 1 Wakefield v. Koss, 5 Mason, 18, per Story, J. See also Menochius, De 472 LAW OF EVIDENCE. [PAKT III. fined to be a solemn invocation of the vengeance of the Deity upon the witness, if he do not declare the whole truth as far as he knows it;^ or, a religious asseveration by which a per- son renounces the mercy, and imprecates the vengeance of Heaven, if he do not speak the truth." ^ But the correct- ness of this view of the nature of an oath has been justly questioned by a late writer,^ on the ground that the impreca- tory clause is not essential to the true idea of an oath, nor to the attainment of the object of the law in requiring this solemnity. The design of the oath is not to call the atten- tion of God to man; but the attention of man to God; — not to call on Him to punish the wrongdoer ; but on man to remember that He will. That this is all which the law requires, is evident from the statutes in regard to Quakers, Moravians, and other classes of persons, conscientiously scrupulous of testifying under any other sanction, and of whom, therefore, no other declaration is required. Accord- ingly, an oath has been well defined, by the same writer, to be " an outward pledge, given by the juror," (or person taking it,) " that his attestation or promise is made under an Prsesumpt. lib. 1, quaest. 1, n. 32, 33 ; Farinac. Opera, torn. 2, App. p. 162, n. 32, p. 281, n. 33 ; Bynkershoek, Observ. Juris Bom. lib. 6, cap. 2. 1 1 Stark. Evid. 22. The force and utility of this sanction were familiar to the Romans from the earliest times. The solemn oath was anciently taken by this formula, the witness holding a flint stone in his right hand : Si sciens fallo, turn me Diespiter, salva urhe arceque, bonis eficiat, ut ego hano lapidem. Adam's Ant. 247 ; Cie. Fam. Ep. vii. 1,12; 12 Law Mag. (Lond.) 272. The early Christians refused to utter any imprecation whatever; Tyler on Oaths, oh. 6 ; and accordingly, under the Christian Emperors, oaths were taken in the simple form of religious asseveration, invocato Dei Omnipolenlis nomine, Cod. lib. 2, tit. 4, 1. 41 ; sacrosanctis evangeliis tactis. Cod. lib. 3, tit. 1, 1. 14. Constautine added in a rescript, — Jurisjurandi religione testes, prius quam perhibeant testimonium, jamdudum arctari prcecip- Imus. Cod. lib. 4, tit. 20, 1. 9. See also Omichund v. Barker, 1 Atk. 21, 48, per Ld. Hardwicke ; Willes, 538, S. C. ; 1 Phil. Evid. p. 8 ; Atcheson o. Everitt, Cowp. 389. The subject of oaths is very fully and ably treated by Mr. Tyler, in his book on Oaths, their Nature, Origin, and History. Lond. 1834. 2 White's case, 2 Leach, Cr. Cas. 482. i 3 Tyler on Oaths, pp. 12, 13. CHAP. II.] ■ COMPETENCY OF WITNESSES. 473 immediate sense of his responsibility to God." ^ A security to this extent, for the truth of testimony, is all that the law seems to have deemed necessary ; and with less security than this, it is believed that the purposes of justice cannot be accomplished. ' , § 329. And first, in regard to parties, the general rule of the Common Law is, that a party to the record, in a civil suit, cannot be a witness either for himself, or for a co-suitor in the cause,^ The rule of the Roman Law was the same. Omnibus in re proprid dicendi testimonii facultatem jura sub- moverunt? This rule of the Common Law is founded, not solely in the consideration of interest, but partly also in the general expediency of avoiding the multiplication of temp- tations to perjury. In some cases at 'La\^, and generally by the course of proceedings in Equity, one party may appeal to the conscience of the other, by calling him to answer interrogatories upon oath. But this act of the adversary may be regarded as an emphatic admission, that, in that instance, the party is worthy of credit, and that his known integrity is a sufficient guaranty against the danger of false- hood.* But where the party would volunteer his own oath. 1 Tyler on Oaths, p. 15. See also the report of the Lords' Committee, Id. Introd. p. xiv. ; 3 Inst. 165; Fleta, lib. 5, c. 22; Fortescue, De Laud Leg. Angl. c. 26, p. 58. 2 3 Bl. Comm. 371 ; 1 Gilb. Evid. by LofFt, p. 221 ; Prear v. Evertson, 20 Johns. 142. 3 Cod. lib. 4, tit. 20, 1. 10. NuUus idoneus testis in re sua intelligitur. Dig. lib. 22, tit. 5, 1. 10. 4 In several of the United States, any partj', in a suit at law, may compel the adverse party to appear and testify as a witness. In Connecticut, this may be done in all oases. Rev. Stat. 1849, tit. 1, § 142. So, in Ohio. Stat. March 23, 1850, §§ 1, 2. In Michigan, the applicant must first make affidavit that material facts in his case are known to the adverse party, and that he has no other proof of them, in which case he may be examined as to those facts. Rev. Stat. 1846, ch. 102, § 100. In Mw York, the adverse party may be called as a witness ; and, if so, he may testify in his own behalf, to the same matters to which he is examined in chief; and if he testifies to new matter, the party calling him may also testify to such new matters. Rev. Stat. Vol. 3, p. 769, 3d ed. The law is the same in Wisconsin. Rev. Stat. 40* 474 LAW OF BVIDBNCE. • [PAllT III. or a co-suitor, identified in interest with him, would offer it, this reason for the admission of the evidence totally 1849, cbi 98, §§ 57, 60; [and in New Jersey, Nixon's Digest, (1855,) p. 187.] In Mtssouri, parties may summon each other as witnesses, in Justices' Courts ; and, if the party so summoned refuses to attend or tes- tify, the other party may give his own oath in litem. Kev. Stat. 1845, ch. 93, §§ 24, 25. [In- Massachusetts, (Acts 1857, chap. 305,) parties in all civil actions and proceedings, including probate and insolvency pro- ceedings, suits in equity, and all divorce suits, except those in which a divorce is sought for the alleged criminal conduct of either party, may be admitted to testify' in their own favor, and may be called as witnesses by the opposite party. In all actions in which the wife is a party, or one of the parties to the action, she and her husband ..are competent witnesses for or against each other, but they cannot testify as to private conversations with each other. No person so testifying is compelled to criminate, himself ; and if one of the original parties to the contract or cause of action then in issue and on trial, be dead, or is shown to the Court to be insane ; or when an executor or administrator is a party to the salt or proceeding, the other party cannot testify, except in the last-named case, as to such acts and con- tracts as have been done or made since the probate of the will or the ap- pointment of the administrator. The depositions of such parties may be taken, as of other witnesses, and the expense thereof taxed in the bill of costs. The laws relating fo attesting witnesses to wills, are not afi'ected by the act. Parties are also, with certain exceptions, competent witnesses for either party; in Maine, Rev. Stat. (1857,) ch. 82, § 78-83; in New Hampshire, Acts of 1857, ch. 1952, pamphlet edition of Laws, p. 1868 ; in Vermont, Acts of 1852, No. 13, (Nov. 23, 1852;) Acts of 1853, No. 13, (December 6, 1853); in Rhode Island, Kev. Stat. (1857,) ch. 187, § 34; in Connecticut, Pub. Stat. (Compilation of 1854,) p. 95, § 141; in Ohio, Rev. Stat. (Curwen's ed.) Vol. 3, p. 1986, tit. x. ch. 1, § 310-313.) The Massachusetts Statute of 1856, ch. 188, (repealed by act of 1857, ch. 305,) provided " where the original party to the contract or cause of action was dead," that the other party could not testify. In a replevin suit, (Fischer V. Morse, Norfolk S. J. C. Oct. T. 1857, 20 Law Reporter, 414,) for goods, the defendant in his answer claimed the replevied goods as assignee in insol- vency of a third person now deceased. The plaintiff contended, that the insolvent, (the third person,) obtained the goods of him by fraud, and there- fore acquired no title, and offered himself as witness ; and it was held, that he was incompetent — the original party to the cause of action being dead. The Connecticut Statute provides that no person shall be disqualified as a witness by reason of interest in the event of the suit whether as a party or otherwise. Under this statute the wife is held to be a competent wit- ness for the husband. Merriam v. Hartford and N. H. R. R. Co. 20 Conn. CHAP. II.] COMPETENCY OF WITNESSES. 475 fails ;^ " and it is not to be presumed that a man, who com- plains without cause, or defends without justice, should have honesty enough to confess it." ^ § 330. The rule of the Common Law goes still further in regard to parties to the record in not compelling them, in tri- als by Jury, to give evidence for the opposite party, against themselves, either in civil or in criminal cases. "Whatever may be said by theorists, as to the policy of the maxim. Nemo tenetur seipsum prodere, no inconvenience has been felt in its practical application. On the contrary, after cen- turies of experience, it is still applauded by Judges, as " a rule founded in good sense and sound policy ; " ^ and it cer- tainly preserves the party from temptation to perjury. This rule extends to all the actual and real parties to the suit, whether they are named on the record as such or not.* 354, 363. For a similar decision in Vermont, see Rutland and B. R. R. Co. V. Simson's Adm'r, 19 Law Rep. 629. See to this point under the Massa- chusetts Statute of 1856, which provided that parties in all civil actions may testify, &c., without the additional clause as to husband and wife that is in the Act of 1857; (see supra,) Barber k. Goddard, 20 Law Rep. 408, and Snell V. Westport, lb. 414, which decide that the wife is a competent witness if a party to the suit, but not otherwise.] 1 " For where a man, who is interested in the matter in question, would also prove it, it rather is a ground for distrust, than any just cause of belief; • for men are generally so short-sighted, as to look to their own private bene- fit, which is near them, rather than to the good of the world, ' which, though on the sum of things really best for the individual,' is more remote ; there- fore, from the nature of human passions and actions, there is more reason to distrust such a biased testimony than to believe it. It is also easy for persons, who are prejudiced and prepossessed, to put false and unequal glosses upon what they give in evidence ; and therefore the law removes them from testimony, to prevent their sliding into perjury ; and it can be no injury to truth to remove those from the Jury, whose testimony may hurt themselves, and can never induce any rational belief." 1 Gilb. Evid. by Lofi"t, p. 223. a 1 Gilb. Evid. by Lofft, p. 243. 3 Worrall v. Jones, 7 Bing. 395, per Tindal, C. J. ; Rex v. Woburn, 10 East, 403, per Lord EUenborough, C. J. ; Commonwealth v. Marsh, 10 Pick. 57. 4 Rex V. Woburn, 10 East, 395 ; Mauran v. Lamb, 7 Cowen, 174 ; Ap- pleton V. Boyd, 7 Mass. 131 ; Fenn v. Granger, 3 Canipb. 177. 4Y6 LAW OF EVIDENCE. [PART III. § 331. Whether corporators are parties within the meaning of this rule, is a point not perfectly clear. Corporations, it is to be observed, are classed into public or municipal, and pri- vate corporations. The former are composed of all the in- habitants of any of the local or territorial portions into which the country is divided in its political organization. Such are counties, towns, boroughs, local parishes, and the like. In these cases, the attribute of individuality is conferred on the entire mass of inhabitants, and again is modified, or taken away, at the mere will of the legislature, according to its own views of public convenience, and without any necessity for the consent of the inhabitants, though not ordinarily against it. They are termed quasi corporations ; and are dependent on the public will, the inhabitants not, in general, deriving any private and personal rights under the act of incorpora- tion ; its office and object being not to grant private rights, but to regulate the manner of perfornting public duties.' These corporations sue and are sued by the name of " the Inhabitants of " such a place ; each inhabitant is directly liable in his person to arrest, and in his goods to seizure and sale, on the execution, which may issue against the collective body, by that name ; and of course each one is a party to the suit ; and his admissions, it seems, are receivable in evidence, though their value, as we have seen, may be exceedingly light.^ Being parties, it would seem naturally to follow, that these inhabitants were neither admissible as witnesses for themselves, nor compellable to testify against themselves; but considering the public nature of the suits, in which they are parties, and of the interest generally involved in them, the minuteness of the private and personal interest concerned, 1 Angell & Ames on Corp. 16, 17; Kumford v. Wood, 13 Mass. 192. The observations in the text are applied to American corporations of a po- litical character. Whether a municipal corporation can in every case be dissolved by an act of the legislature, and to what extent such act of dissolu- tion may constitutionally operate, are questions, which it is not necessary here to discuss. See Willcockon Municipal Corporations, pt. 1, § 852 ; Ter- rett V. Taylor, 9 Cranch, 43, 51 ; Dartmouth College v. Woodward, 4 Wheat. 518, 629, 663 ; [Warren v. Charlestown, 2 Gray, 84, 100.] 2 Supra, § 1 75, and note. CHAP. II.] COMPETENCY OF WITNESSES. 477 its contingent character, and the almost certain failure of justice, if the rule were carried out to such extent in its ap- plication, these inhabitants are admitted as competent wit- nesses in all cases, in which the rights and liabilities of the corporation only are in controversy. But where the inhabit- ants are individually and personally interested, it is other- wise.i Whether this exception to the general rule was solely 1 Swift's Evid. 57 ; Kex v. Mayor of London, 2 Lev. 231. Thus, an inbabitant is not competent to prove a way by prescription for all the inhabit- ants ; Odiorne v. Wade, 8 Pick. 518 ; nor a right, in all the inhabitants to take shell-fish; Lufkin v. Haskell, 3 Pick. 356 ; for in such cases, by the Common Law, the record would be evidence of the custom, in favor of the ■witness. [But see Look v. Bradley, 13 Met. 369, 372.] This ground of objection, however, is now removed in England, by Stat. 3 & 4 W. 4, u. 42. The same principle is applied to any private, joint, or common interest. Parker v. Mitchell, 11 Ad. & El. 788. See also Prewitt v. Til- ley, 1 C. & P. 140 ; Ang. & Ames on Corp. 390-394 ; Connecticut v. Bra- dish, 14 Mass. 296 ; Gould v. James, 6 Cowen, 369 ; Jacobson v. Fountain, 2 Johns. 170 ; Weller v. The Governors of the Foundling Hospital, Peake's Cas. 153 ; Infra, § 405. In the English Courts, a distinction is taken between rated and ratable inhabitants, the former being held inadmissi- ble as witnesses, and the latter, being held competent ; and this distinc- tion has been recognized in some of our own Courts ; though upon the grounds stated in the text, it does not seem applicable to our institutions, and is now generally disregarded. See Commonwealth v. Baird, 4 S. & K. 141 ; Falls v. Belknap, 1 Johns. 486, 491 ; Corwein v. Hames, 11 Johns. 76; Bloodgood v. Jamaica, 12 Johns. 285; Supra, § 175, note, and the cases above cited. But in England, rated inhabitants are now by statutes made competent witnesses on indictments for non-repair of bridges ; in actions against the hundred, under the statute of Winton ; in actions for riotous assemblies ; in actions against churchwardens for misapplication of funds ; in summary convictions under 7 & 8 Geo. 4, c. 29, 30 ; on the trial of indictments under the general highway act and the general turnpike act ; and in matters relating to rates and cesses. Phil. & Am. on Evid. 133- 138, 395; 1 Phil. Evid. 138-144. In the Province of New Brunswick, rated inhabitants are now made competent witnesses in all cases where the town or parish may in any manner be affected, or where it may be interested in a pecuniary penalty, or where its officers, acting in its behalf, are parties. Stat. 9 Vict. cap. 4, March 7, 1846. In several of the United States, also, the inhabitants of counties and other municipal, territorial, or quasi corpora- tions, are expressly declared by statutes, to be competent witnesses, in all suits in which the corporation' is a party. See Maine, Rev. Stat. 1840, ch. 115, § 75; Massachusetts, Rev. Stat. ch. 94, § 54; Vermont, Rev. Stat. 478 LAW OTS EVIDENCE. [PART III. created by the statutes, which have been passed on this sub- ject, or previously existed at Common Law, of which the statutes are declaratory, is not perfectly agreed.' In either case, the general reason and necessity, on which the excep- tion is founded, seem to require, that where inhabitants are admissible as witnesses for the corporation, they should also be compellable to testify against it ; but the point is still a vexed question.^ § 332. Private corporations, in regard to our present in- quiry, may be divided into two classes, namely, pecuniary or moneyed institutions, such as banks, insurance, and manufac- turing companies, and the like, and institutions, or societies for religious and charitable purposes. In the former, mem- bership is obtained by the purchase of stock or shares, with- out the act or assent of the corporation, except prospectively and generally, as provided in its charter, and by-laws ; and the interest thus acquired is private, pecuniary, and vested, like ownership of any other property. In the latter, mem- bership is conferred by special election ; but the member has no private interest in the funds, the whole property being a trust for the benefit of others. But all these are equally cor- porations proper ; and it is the corporation, and not the indi- vidual member, that is party to the record in aU suits by or 1839, eh. 31, § 18 ; New York, Rev. Stat. Vol. 1, pp. 408, 439, (Sd ed.); Pennsylvania, T)nn\. Dig. pp. 215, 913, 1019, 1165; Michigan, Key. Stat. 1846, ch. 102, § 81 ; Wisconsin, Rev. Stat. 1849, oh. 10, § 21 ; Id. oh. 98, §49; Virginia, Rev. Stat. 1849, oh. 176, § 17; Missouri, Rev. Stat. 1845, ch. 34, art. 1, § 25. In New Jersey, they are admissible in suits for moneys to which the county or town is entitled. Rev. Stat. 1846, tit. 34, ch. 9, § 5. See Stewart v. Saybrook, Wright, 374 ; Barada v. Caundelet, 8 Miss, 644. 1 Supra, § 175, and the cases cited in note. See also Phil. & Am. on Evid. p. 395, note (2) ; 1 Phil. Evid. 375 ; City Council a. King, 4 McCord, 487; Marsden v. Stansfield, 7 B. & C. 815; Rex v. Kirdford, 2 East, 559. 2 In Rex V. Woburn, 10 East, 395, and Rex v. Hardwioke, 11 East, 578, 584, 586, 589, it was said that they were not compellable. See accordingly Plattekill v. New Paltz, 15 Johns. 305. CHAP.. II.] COMPETENCY OP WITNESSES. 479 against it.^ Hence it follows, that the declarations of the members are not admissible in evidence in such actions as the declarations of parties,^ though where a member or an oiBcer is an agent of the corporation, his declarations may be admissible, as part of the res gestm? § 333. But the members or stockholders, in institutions created for private emolument, though not parties to the record, are not therefore admissible as witnesses ; for, in mat- ters in which the corporation is concerned, they of course have a direct, certain) and vested interest which necessarily excludes them.* Yet the members of charitable and religious 1 Merchants' Bank v. Cook, 4 Pick. 405. It has been held in Maine, that a corporator, or shareholder in a moneyed institution, is substantially a party, and therefore is not compellable to testify where the corporation is party to the record. Bank of Oldtown v. Houlton, 8 Shepl. 501. Shepley, J., dissenting. The members of rsmtasX fire insurance companies and of rail- road and plank-road corporations, are made competent witnesses in suits where the corporation is concerned, in Wisconsin, by Rev. Stat. 1849, ch. 98, § 49. In Massachusetts, this competency is extended only to members of mutual fire or marine insurance corporations. Rev. Stat. 1836, ch. 94, § 54; Stat. 1848, ch. 81 ; Bristol v. Slade, 23 Pick. 160. In Maine, it is restricted to members of mutual fire insurance corporations. Rev. Stat. 1840, ch. 115, § 75. In New Hampshire, it is extended to all " members of mutual insurance companies." Rev. Stat. 1842, ch; 188, § 12. 2 City Bank v. Bateman, 7 Har. & Johns. 104, 109 ; Hartford Bank v. Hart, 3 Day, 491, 495; Magill v. Kauffman, 4 S. & R. 317; Stewart v. Huntingdon Bank, 11 S. & R. 267 ; Atlantic Ins. Co. v. Conard, 4 Wash. 663, 677 ; Fairfield Co. Turnpike Comp. v. Thorp, 13 Conn. 173. 3 bup-a, §§ 108, 113, 114. 4 This rule extends' to the members of all corporations, having a common fund distributable among the members, and-in which they therefore have a private interest ; the principle of exclusion applying to all cases where that private interest would be affected. Doe d. Mayor and Burgesses of Stafford V. Tooth, 3 Younge & Jer. 19 ; City Council v. King, 4 McCord, 487, 488 ; Davies v. Morgan, 1 Tyrwh. 457. Where a corporation would examine one of its members as a witness, he may be rendered competent, either by a sale of his stock or interest, where membership is gained or lost in that way ; or, by being disfranchised ; which is done by an information in the nature of a quo warranto against the member, who confesses the information, on which the plaintiff obtains judgment to disfranchise him. Mayor of Colchester v. , 1 P. Wms. 595. Where the action is against the corporation for a 480 LAW OF EVIDENCE. [PART III. societies, having no personal and private interest in the prop- erty holden by the corporation, are competent witnesses in any suit in which the corporation is a party. On this ground, a mere trustee of a savings banli, not being a stock- holder or a depositor,^ and a trustee of a society for the instruction of seamen,^ and trustees of many other eleemo- synary institutions, have been held admissible witnesses in such suits. But where a member of a private corporation is inadmissible as a witness generally, he may still be called upon to produce the corporate documents, in an action against the corporation ; for he is a mere depositary, and the party objecting to his competency is still entitled to inquire of him concerning the custody of the documents.^ And if a trustee, or other member of an eleemosynary corporation, is liable to costs, this is an interest which renders him incom- petent, even though he may have an ultimate remedy over.* debt, and the stockholders are by statute made liable for such debt, and their property is liable to seizure upon the execution issued against the cor- poration, a member, once liable, remains so, notwithstanding his alienation of stock, or disfranchisement, and therefore is not a competent witness for the corporation in such action. HoTey v. The Mill-Dam Foundry, 21 Pick. 453. But where his liability to the execution issued against the corporation is not certain, but depends on a special order to be granted by the Court, in its discretion, he is a competent witness. Needham v. Law, 12 M. & W. 560. The clerk of a corporation is a competent witness to identify its books and verify its records, although he be a member of the corporation, and interested in the suit. Wiggin v. Lowell, 8 Met. 301. In several of the United States, however, the members of private corporations are made competent witnesses by express statutes ; and in others they are rendered so by force of general statutes, removing the objection of interest from all witnesses. Supra, § 331. 1 Middletown Savings Bank v. Bates, 11 Conn. 519. 2 Miller v. Mariner's Church, 7 Greenl. 51. See also Anderson v. Brock, 3 Greenl. 243 ; Wells v. Lane, 8 Johns. 462 ; Gilpin v. Vincent, 9 Johns. 219 ; Nayson v. Thatcher, 7 Mass. 398 ; Cornwell v. Isham, 1 Day, 35 ; Kichardson v. Freeman, 6 Greenl. 57 ; Weller v. Foundling Hospital, Peake's Cas. 153; [Davies v. Morris, 17 Penn. State R. 205.] 3 Rex V. Inhabitants of Netherthong, 2 M. & S. 237; Wilcock on Muni- cipal Corp. 309 ; AViggin v. Lowell, 8 Met. 301. 6 Rex V. St. Mary Magdalen, Bermondsey, 3 East, 7. CHAP. II.] COMPETENCY OF WITNESSES. 481 § 334. The rule, by which parties are excluded from being witnesses for themselves, applies to the case of husband and wife; neither of them being admissible as a witness in a cause, civil or criminal, in which the other is a party.i This exclusion is founded partly on the identity of their legal rights and interests, and partly on principles of public policy, which lie at the basis of civil society. For it is essential to the happiness of social life, that the confidence subsisting be- tween husband and wife should be sacredly protected and cherished in its most "unlimited extent ; and to break down or impair the great principles which protect the sanctities of that relation, would be to destroy the best solace of human existence.^ § 335. The principle of this rule requires its application to all cases, in which the interests of the other party are involved. And therefore, the wife is not a competent witness against any co-defendant, tried with her husband, if the testimony concern the husband, though it be not directly given against him.^ Nor is she a witness for a co-defendant, if her testi- 1 An exception or qualification of this rule is admitted, in cases where the husband's account-books have been kept by the wife, and are offered in evi- dence in an action brought by him for goods sold, &c. Here the wife is held a competent witness, to testify that she made the entries by his direction and in his presence ; after which his own suppletory oath may be received, as to the times when the charges were made, and that they are just and true. Little- field V. Rice, 10 Met. 287. And see Stanton v. Wilson, 3 Day, 37 ; Smith v. Sanford, 12 Pick. 139. In the principal case, the correctness of the contrary decision in Carr v. Cornell, 4 Verm. 116, was denied. In Iowa, husband and wife are competent witnesses for, but not against each other, in criminal prosecutions. Code of 1851, art. 2391. 2 Stein V. Bowman, ISjeters, 223, per M cLean. J. ; Supra, §254; Co. Lit. 6, b. ; Davis v. Dinwoody, 4 T. E. 678; Barker v. Dixie, Gas. temp. Hardw. 264 ; Bentley v. Cooke, 3 Doug. 422, per Ld. Mansfield. The rule is the same in Equity. Vowles v. Young, 13 Ves. 144. So is the law of Scotland. Alison's Practice, p. 461. See also 2 Kent, Comm. 179, 180; Commonwealth v. Marsh, 10 Pick. 57 ; Bobbins v. King, 2 Leigh, Com. R. 142, 144 ; Snyder v. Snyder, 6 Binn. 488 ; Corse v. Patterson, 6 Har. & Johns. 153 ; Barbat v. Allen, 7 Exehr. 609. 3 Hale, P. C. 301 ; Dalt. Just. c. Ill ; Rex v. Hood, 1 Mood. Cr. Cas. 281 ; vol. I. ^ 41 482 LAW OF EVIDENCE. [PAET ni. mony, as in the case of a conspiracy,^ would tend directly to her husband's acquittal ; nor where, as in the case of an assault,^ the interests of all the defendants are inseparable ; nor in any suit in which the rights of her husband, though not a party, would be concluded by any verdict therein ; nor may she, in a suit between others, testify to any matter for which, if true, her husband may be indicted-^ Yet where the grounds of defence are several and distinct, and in no manner dependent on each other, no reason is perceived why the wife of one defendant should not be admitted as a wit- ness for another.* § 336. It makes no difference at what time the relation of husband and wife commenced; the principle of exclusion be-' ing applied in its full extent, wherever the interests of either Rex V. Smith, Id. 289. [The husband is not a competent witness for or against the trustee of the wife's separate estate, in a suit between the trustee and a third person in regard to the trust estate. Hasbrouck v. Vandervort, 5 Selden, 153.] ' Rex V. Locker, 5 Esp. 107, per Ld. Ellenborough, who said it was a clear rule of the Law of England. The State v. Burlingham, 3 Shepl. 104 ; [Commonwealth v. Robinson, 1 Gray, 555, 559.] But where several are jointly indicted for an offence, which might have been committed either by one or more, and they are tried separately, it has been held that the wife of one is a competent witness for the others. The Commonwealth v. Manson, 2 Ashm. 31 ; The State t.. Worthing, 1 Redington, 62 ; Infra, § 363, note. But see PuUen v. The People, 1 Doug. Michigan R. 48. 2 Rex V. Frederic, 2 Stra. 1095. [See State v. Worthing, 31 Maine, 62; Infra, § 363, note.] 3 Den d. Stewart v. Johnson, 3 Harrison, 88. * Phil. & Am. on Evid. 160, u. (2) ; 1 Phil. Evid. 75, n. (1). But where the wife of one prisoner was called to prove an alibi in favor of another jointly indicted, she was held incompetent, on the ground that her evidence went to weaken that of the witness against her husband, by showing that that witness was mistaken in a material fact. Rex v. Smith, 1 Mood. Or. Cas. 289. If the conviction of a prisoner, against whom, she is called, will strengthen the hope of pardon for her husband, who is already convicted, this goes only to her credibility. Rex v. Rudd,.l Leach, 136, 151. Where one of two persons, separately indicted for the same larceny, has been con- victed, his wife is a competent witness against the other. Regina v. Wil- liams, 8 C. & P. 284. CHAP. II.] COMPETENCY OF WITNESSES. 483 of them are directly concerned. Thus, where the defendant married one of the plaintiff's witnesses, after she was actually summoned to testify in the suit, she was held incompetent to give evidence.^ Nor is there any difference in principle , between the admissibility of the husband and that of the wife, where the other is a party.^ And when, in any case, they are admissible against each other, they are also admis- sible for each other.^ § 337. Neither is it material, that this relation no longer exists. The great object of the rule is to secure domestic happiness, by placing the protecting seal of the law upon all confidential communications between husband and wife ; and whatever has come to the knowledge of either by means of the hallowed confidence which that relation inspires, cannot be afterwards divulged in testimony, even though the other party be no longer living.* And even where a wife, who had been divorced by act of Parliament, and had married another person, was offered as a witness by the plaintiff, to prove a contract against her former husband, Lord Alvanley held her clearly incompetent ; adding, with his characteristic energy, — "it never shall be endured, that the confidence, which the law has created while the parties remained in the most intimate of all relations, shall be broken, whenever, by the misconduct of one party, the relation has been dis- solved."*^ 1 Pedley v. Wellesley, 3 C. & P. 658. This case forms an exception to the general rule, that neither a witness nor a party can, by his own act, de- prive the other party of a right to the testimony of the witness. See supra, §167; /«/ra, §418. 2 Rex V. Serjeant, 1 Ry. & M. 352. In this case, the husband was, on this ground, held incompetent as a witness against the wife, upon an indictment against her and others for conspiracy, in procuring him to marry her. 3 Rex V. Serjeant, 1 Ry. & M. 352. * Stein V. Bowman, 13 Peters, 209. 5 Monroe v. Twistleton, Peake's Evid. App. Ixxxvii. [xci.], expounded and confirmed in Aveson «. Ld. Kinnaird, 6 East, 192, 193, per Ld. Ellen- borough, and in Doker v. Hasler, Ry. & M. 198, per Best, C. J. ; Stein v. Bowman, 13 Peters, 223. In the case of Beveridge v. Minter, 1 C. & P. 364, 484 LAW OB EVIDENCE. [PAET III. § 338. This rule, in its spirit and extent, is analogous to that which excludes confidential communications made by a client to his attorney, and which has been already consid- ered.i Accordingly, the wife, after the death of the husband, has been held competent to prove facts coming to her knowU edge from other sowces, and not by means of her situation as a wife, notwithstanding they related to the transactions of her husband.^ § 339. This rule of protection is extended only to lawful marriages, or at least to such as are innocent in the eye of the law. If the cohabitation is clearly of an immoral char- acter, as, for example, in the case of a kept mistress, the par- ties are competent witnesses for and against each other.^ On the other hand, upon a trial for polygamy, the iirst mar- riage being proved and not controverted, the woman, with whom the second marriage was had, is a competent witness ; for the second marriage is void.* But if the proof of the first marriage were doubtful, and the fact were controverted, it is conceived that she would not be admitted.^ It seems, in which the widow of a deceased promisor was admitted by Abbott, C. J., as a witness for the plaintiff to prove the promise, in an action against her husband's executors, the principle of the rule does not seem to have received any consideration ; and the point was not saved, the verdict being for the defendants. See also Terry v. Belcher, 1 Bailey's R. 568, thai the rule exr eludes the testimony of a husband or wife separated from each other, under articles. See further, supra, § 254 ; The State v. Jolly, 3 Dev. & Bat. 110 ; Barnes v. Camack, 1 Barb. 392. [In ap action on the case brought by a husband for criminal conversation with his wife, the latter, after a divorce from the bonds of matrimony, is a competent witness in favor of the husband, to prove the charge in the declaration. Diekerman v. Graves, 6 Cush, 308 ; Infra, § 344, note.] 1 Supra, §§ 338, 240, 243, 244. 2 Coffin V. Jones, 1 3 Pick. 44p ; Williams v. Baldwin, 7 Verm. 506 ; Cornell v. Vanartsdalen, 4 Barr, 364 ; Wells v. Tucker, 3 Biiin. 366. And see Saunders v. Hendrix, 5 Ala. 224; McGuire v. IVIaloney, 1 B. Monr. 224. 3 Batthews v. Galindo, 4 Bing. 610. 4 Bull. N. P. 287. 5 If the fact of the second marriage is in controversy, the same principle, CHAP. II.] COMPETENCY OF WITNESSES. 485 however, that a reputed or supposed wife may be examined on the voir dire, to facts showing the invalidity of the mar- riage.^ Whether a woman is admissible in favor of a man, with whom she has cohabited for a long time as his wife, whom he has constantly represented and acknowledged as such, and by whom he has had children, has been declared to be at least doubtful.^ Lord Kenyon rejected such a wit- ness, when offered by the prisoner, in a capital case tried before him ; ^ and in a later case, in which bis decisions were mentioned as entitled to be held in respect and reverence, an arbitrator rejected a witness similarly situated ; and the Court, abstaining from any opinion as to her competency, confirmed the award, on the ground that the law and fact had both been submitted to the arbitrator.* It would doubt- less be incompetent for another person to offer the testimony of an acknowledged wife, on the ground that the parties were never legally married, if that relation were always recognized and believed to be lawful by the parties. But where the parties had lived together as man and wife, belie v- it seems, will exclude the second wife also. See 2 Stark. Evid. 400 ; Grigg's case, T. Eaym. 1. But it seems, that the wife, though inadmissible as a witness, may be produced in Court for the purpose of being identified, although the proof thus furnished may affix a criminal charge upon the hus- band ; as, for example, to show that she was the person to whom he was first married ; or, who passed a note, which he is charged with having stolen. Alison's Pr. p. 463." 1 Peat's case, 2 Lew. Cr. Cas. 288 ; Wakefield's case. Id. 279. 2 1 Price, 88, 89, per Thompson, C. B. If a woman sue as a feme sole, her husband is not admissible as a witness for the defendant, to prove her a feme covert, thereby to nonsuit her. Bentley v. Cooke, Tr. 24 Geo. 3, B. E. cited 2 T. R. 265, 269 ; 3 Doug. 422, S. C. 3 Anon, cited by Richards, B., in 1 Price, 83. * Campbell v. Twemlow, 1 Price, 81, 88, 90, 91. Richards, B., observed, that he should certainly have done as the arbitrator did. To admit the wit- ness in such a case would both encourage immorality, and enable the parties at their pleasure to perpetrate fraud, by admitting or denying the marriage, as may suit their convenience. Hence, cohabitation and. acknowledgment, as husband and wife, are held conclusive against the parties, in all cases, except where the fact or the incidents of marriage, such as legitimacy and inheritance, are directly in controversy. See also DivoU v. Leadbetter, ■4 Pick. 220. 41* 486 LAW OP EVIDENCE. [PART III, ing themselves lawfully married ; but had separated on dis- covering that a prior husband, supposed to be dead, was still living ; the woman was held a competent witness against the second husband, even as to facts communicated to her by him during their cohabitation.^ § 340. Whether the rule may be relaxed, so as to admit the wife to testify against the husband, by his consent, the authorities are not agreed. Lord Hardwicke was of opinion that she was not admissible, even with the husband's con- sent ; ^ and this opinion has been followed in this country ; * apparently upon the ground, that the interest of the husband in preserving the confidence reposed in her is not the sole foundation of the rule, the public having also an interest in the preservation of domestic peace, which might be disturbed by her testimony, notwithstanding his consent. The very great temptation to perjury, in such case, is not to be over- looked.* But Lord Chief Justice Best, in a case before him,^ said he would receive the evidence of the wife, if her husband consented ; apparently regarding only the interest of the husband as the ground of her exclusion, as he cited a case, where Lord Mansfield had once permitted a plaintiff to be examined with his own consent. § 341. Where the husband or wife is not a party to the record, but yet has an interest directly involved in the suit, and is therefore incompetent to testify, the other also is in- competent. Thus, the wife of a bankrupt cannot be called to prove the fact of his bankruptcy.^ And the husband can- not be a witness for or against his wife, in a question touch- 1 Wells V. Fletcher, 5 C. & P. 12 ; Wells v. Fisher, 1 M. & R. 99, and note. 2 Barker v. Dixie, Cas. temp. Hardw. 264 ; Sedgwick v. Walkins, 1 Ves. 49 ; Grigg's case, T. Raym. 1. s Randall's case, 5 City Hall Rec. 141, 153, 154. See also Colbern's case, 1 Wheeler's Crim. Cas. 479. * Davis !). Dinwoody, 4 T. B. 679, per Lord Eenyon. 5 Pedley v. Wellesley, 3 C. & P. 558. 6 Ex parte ^amsis, 1 P. Wms. 610, 611. But she is made competent by statute, to make discovery of his estate. 6 Geo. 4, c. 16, § 37. CHAP II.] COMPETENCY OP WITNESSES. 487 ing her separate estate, even though there are other parties, in respect of whom he would be competent.^ So, also, where the one party, though a competent witness in the cause, is not bound to answer a particular question, because the answer would directly and certainly expose him or her to a criminal prosecution and conviction, the other, it seems, is not obliged to answer the same question.^ The declarations of husband and wife are subject to the same rules of exclusion which govern their testimony as witnesses.^ 1 1 Burr. 424, per Lord Mansfield; Davis v. Dinwoody, 4 T. R. 678 ; Snyder v. Snyder, 6 Binn. 483 ; Langley v. Fisher, 5 Beav. 443. But where the interest is contingent and uncertain, he is admissible. Richardson v. Learned, 10 Pick. 261. See further Hatfield v. Thorp, 5 B. & Aid. 589; Cornish v. Pugh, 8 D. & R. 65 ; 12 Vin. Abr. Evidence, B. If an attesting witness to a will afterwards marries, a female legatee, the legacy not being given to her separate use, he is inadmissible to prove the will. Mackenzie V. Yeo, 2 Curt. 509. The wife of an executor is also incompetent. Young V. Richard, Id. 371. But where the statute declares the legacy void which is given to an attesting witness of a will, it has been' held, that if the husband is a legatee and the wife is a witness, the legacy is void, and the wife is ad- missible. Winslow V. Kimball, 12 Shepl. 493. 2 See Phil. & Am. on Evid. 168 ; Den v. Johnson, 3 Harr. 87. 3 Alban v. Pritchett, 6 T. R. 680; Denn v. White, 7 T. R. 112 ; Kelly v. Small, 2 Esp. 716 ; Bull. N. P. 28 ; Winsmore v. Greenbank, Willes, 577. Whether, where the husband and wife are jointly indicted for a joint offence, or are otherwise joint parties, their declarations are mutually receivable against each other, is still questioned ; the general rule, as to persons jointly concerned, being in favor of their admissibility, and the policy of the law of husband and wife being against it. See Commonwealth v. Robbins, 3 Pick. 63 ; Commonwealth v. Briggs, 5 Pick. 429 ; Evans w. Smith, 5 Monroe, 363, 364 ; Turner v. Coe, 5 Conn. 93. The declarations of the wife, however, are admissible for or against the husband, wherever they constitute part of \ the res gestce which are material to be proved ; as, where he obtained insur- ance on her life as a person in health, she being in fact diseased. Averson V. Lord Kinnaird, 6 East, 188 ; or, in an action by him against another for \ beating her, Thompson v. Freeman, Skin. 402 ; or, for enticing her away, Gilchrist v. Bale, 8 Watts, 355 ; or, in an action against him for her board, he having turned her out of doors, Walton v. Green, 1 C. & P. 621. So, where she acted as his agent, supra, § 334, n. ; Thomas v. Hargrave, Wright, 595. But her declarations made after marriage, in respect to a debt pre- viously due by her, are not admissible for the creditor, in an action against the husband and wife, for the recovery of that debt. Brown v. Laselle, 6 Blackf. 147. 488 LAW OF EVIDENCE. [PAKT in. § 342. But though the husband and wife are not admis- sible as witnesses against each other, where either is directly- interested in the event of the proceeding, whether civil or criminal ; yet in collateral proceedings, not immediately affecting their mutual interests, their evidence is receivable, notwithstanding it,may tend to criminate, or may contradict the other, or may subject the other to a legal demand.^ Thus, where, in a question upon a female pauper's settle- ment, a man testified that he was married to the pauper upon a certain day, and another woman, being called to prove her own marriage with the same man on a previous day, was objected to as incompetent, she was held clearly admissible for that purpose ; for though, if the testimony of both was true, the husband was chargeable with the crime of bigamy, yet neither the evidence, nor the record in the present case, could be received in .evidence against him upon that charge, it being res inter alios acta, and neither the hus- band nor the wife having any interest in the decision.^ So, 1 Fitch V. Hill, 11 Mass. 286 ; Baring v. Keeder, 1 Hen. & Mun. 154, 168, per Roane, J. In Griffin v. Brown, 2 Pick. 308, speaking of the cases cited to this point, Parker, C. J., said : " They establish this principle, that the ■wife may be a witness to excuse a party sued for a supposed liability, although the effect of her testimony is to charge her husband upon the same debt, in an action afterwards to be brought against him. And the reason is, that the verdict in the action, in which she testifies, cannot be used in the action against her husband ; so that, although her testimony goes to show that he is chargeable, yet he cannot be prejudiced by it. And it may be observed, that, in these very cases, the husband himself would be a competent witness, if he were willing to testify, for his evidence would be a confession against himself." Williams v. Johnson, 1 Stra. 504 ; Vowles v. Young, 13 Ves. 144 ; 2 Stark. Evid. 401. See also Mr. Hargrave's note [29] to Co. Lit. 6 b. 2 Rex V. Bathwick, 2 B. & Ad. 639, 647; Rex v. All Saints, 6 M. & S. 194, S. P. In this case, the previous decision in Rex v. Cliviger, 2 T. R. 263, to the effect, that a wife was in every case incompetent to give evidence, even tending to criminate her husband, was considered and restricted ; Lord Ellenborough remarking, that the rule was there laid down " somewhat too largely." In Rex w. Bathwick, it was held to be " undoubtedly true in the case of a direct charge and proceeding against him for any offence," but was denied in its application to collateral matters. But on the trial of a man for the crime of adultery, the husband of the woman with whom the crime was alleged to have been committed, has been held not to be admissible as a wit- CHAP. II.] COMPETENCY OF WITNESSES. 489 where the action was by the indorsee of a bill of exchange, against the acceptor, and the defence was, that it had been traudulently altered by the drawer, after the acceptance ; the wife of the drawer was held a competent witness to prove the alteration.! § 343. To this general rule, excluding the husband and wife as witnesses, there are some exceptions; which are allowed from the necessity of the case, partly for the pro- tection of the wife in her life and liberty, and partly for the sake of public justice. But the necessity which calls for this exception for the wife's security, is described to mean, " not a general necessity, as where no other witness can be had, but a particular necessity, as where, for instance, the wife would otherwise be exposed, without remedy, to personal injury." ^ Thus, a woman is a competent witness against a man indicted for forcible abduction and marriage, if the force were continuing upon her until the marriage ; of which fact she is also a competent witness ; and this, by the weight of the authorities, notwithstanding her subsequent assent aind voluntary cohabitation ; for otherwise, the offender would take advantage of his wrong.^ So, she is a competent wit- ness against him on an indictment for a rape, committed on her own person ; \ or, for an assault and battery upon ness for the prosecution, as his testimony would go directly to charge the crime upon his wife. The State v. Welch, 13 Shepl. 30. 1 Henman v. Dickenson, 5 Bing. 183. 2 Bentley v. Cooke, 3 Doug. 422, per Ld. Mansfield. In Sedgwick v. Wal- kins, 1 Ves. 49, Ld. Thurlow spoke of this necessity as extending only to security of the peace, and not to an indictment. 3 1 East's P. C. 454 ; Brown's case, 1 Ventr. 243 ; ]• Russ. on Crimes, 572 ; Wakefield's case, 2 Lewin, Cr. Cas. 1, 20, 279. See also Regiua v. Yore, 1 Jebb & Symes, R, 563, 572; Perry's case, cited in McNally's Evid. 181 ; Rex V. Serjeant, Ry. & M. 352; 1 Hawk. P. C. c. 41, § 13 ; 2 Russ. on Crimes, 605, 606. This case may be considered anomalous; for she can hardly be said to be his wife, the marriage contract having been obtained by force. 1 Bl. Comm. 443; McNally's Evid. 179, 180; 3 Chitty's Crim. Law, 817, note (y) ; Roscoe's Crim. Evid. 115. * Ld. Audley's case, 3 Howell's St. Tr. 402, 413 ; Hutton, 115, 116 ; Bull. N. P. 287, 490 LAW OP BVIDBNOB. [PART III. her ; ^ or, for maliciously shooting her.^ She may also exhibit articles of the peace against him ; in which case her affidavit shall not be allowed to be controlled and overthrown by his own.^ Indeed, Mr. East considered it to be settled, that " in aU cases of personal injuries committed by the husband or wife against each other, the injured party is an admissible wit- ness against the other." * But Mr. Justice Holroyd thought that the wife could only be admitted to prove facts, which could not be proved by any other witness.* § 344. The wife has also, on the same ground of necessity, been sometimes admitted as a witness to testify to secret facts, which no one but herself could know. Thus upon an appeal against an order of filiation, in the case of a married woman, she was held a competent witness to prove her criminal connection with the defendant, though her husband was interested in the event ;^ but for reasons of public de- 1 Lady Lawley's case, Bull. N. P. 287 ; Rex v. Azire, 1 Stra. 633 ; Soule's case, 5 Greenl. 407 ; The State v. Davis, 3 Brevard, 3. 2 Whitehouse's case, cited 2 Kuss. on Crimes, 606. 3 Rex V. Doherty, 13 East, 171 ; Lord Vane's case, Id. note (a) ; 2 Stra. 1202; Rex v. Earl Ferrers, 1 Burr. 635. Her affidavit is also admissible, on an application for an information against him for an attempt to take her by force, contrary to articles of separation ; Lady Lawley's ease. Bull. N. P. 287 ; or, in a habeas corpus sued out by him for the same object. Res V. Mead, 1 Burr. 542. 4 1 East's P. C. 455. In Wakeiield's case, 2 Lewin, Cr. Cas. 287, Hul- lock, B., expressed himself to the same effect, speaking of the admissibility of the wife only. 2 Hawk. P. C. c. 46, § 77 ; The People ex rel.; Ordro- naux V. Chegaray, 18 Wend. 642. 5 In Rex V. Jagger, cited 2 Russ. on Crimes, 606. [The wife is not a competent, witness agtiinst the husband, in an indictment against him for subornation of perjury to wrong her in a judicial proceeding. People v. Carpenter, 9 Barb. 580.] 6 Rex V. Reading, Cas. temp. Hardw. 79, 82 ; Rex v. LufFe, 8 East, 193 ; Commonwealth v. Shepherd, 6 Binn. 283 ; The State v. Pettaway, 3 Hawks, 623. So, after divorce a vinculo, the wife may be a witness for her late (husband, in an action brought by him against a third person, for criminal (conversation with her during the marriage. Ratcliff v. Wales, 1 Hill, N. Y. • Rep. 63 ; Dickerman v. Graves, 6 Cush. 308. So, it has been held, that on an indictment against him for an assault and battery upon her, she is a CHAP. II.] COMPETENCY OF -WITNESSES. 491 cency and morality, she cannot be allowed to say, after mar- riage, that she had no connection with her husband, and that therefore her ofFsping is spuorious.^ § 345. In cases of high treason, the question whether the wife is admissible as a witness against her husband, has been much discussed, and opinions of , great weight have been given on both sides. The affirmative of the question is maintained,^ on the ground of the extreme necessity of the case, and the nature of the offence, tending as it does to the destruction of many lives, the subversion of government, and the sacrifice of social happiness. For the same reasons, also, it is said, that, if the wife should commit this crime, no plea of coverture shall excuse her ; no presumption of the hus- band's coercion shall extenuate her guilt.^ But, oh the other hand, it is argued, that, as she is not bound to discover her husband's treason,* by parity of reason she is not compella- ble to testify against him.^ The latter is deemed, by the later text-writers, to be the better opinion.^ § 346. Upon the same principle on which the testimony of the husband or wife is sometimes admitted as well as for some other reasons already stated,'^ the dying declarations of either are admissible, where the other party is charged with the murder of the declarant.^ competent witness for him, to disprove the charge. The State v. Neil, 6 Ala. 685. 1 Cope V- Cope, 1 M. & Rob. 269, 274 ; Goodright v. Moss, Cowp. 594 ; Supra, § 28. 2 These authorities may be said to favor the affirmative of the question : — 2 Russ. on Crimes, 607 ; Bull. N. P. 286 ; 1 Gilb. Evid. by Lofft, 252 ; Mary Grigg's case, T. Raym. 1 ; 2 Stark. Evid. 404. 3 4 Bl. Comra. 29. 4 1 Brownl. 47. 5 1 Hale's P. C. 48, 301 ; 2 Hawk. P. C. ch. 46, § 82 ; 2 Bac. Ab. 578, tit. Evid. A. 1 ; 1 Chitty's Crim. Law, 595 ; McNally's Evid. 181. 6 Roscoe's Crim. Evid. 114 ; Phil> & Am. on Evid. 161 ; 1 Phil. Evid. 71. See also 2 Stark. Evid. 404, note (b.) 7 Supra, § 156. 8 Rex V. Woodcock, 2 Leach, 563; McNally's Evid. 174 ; Stoop's case, Addis. 381 ; The People v. Green, 1 Denio, R. 614. 492 LAW OF EVIDBNCB. [PART III. § 347. The rule, excluding parties from being witnesses, applies to all cases where the party has any interest at stake in the suit, although it be only a liability to costs. Such is the case of a prochein ami,^. a guardian, an 'executor or ad- ministrator ; and so also of trustees and the officers of cor- porations, whether public or private, wherever they are lia- ble in the first instance for the costs, though they may have a remedy for reimbursement out of the public or trust funds .^ § 348. But to the general rule, in regard to parties, there are some exceptions in which the party's own oath may be received as competent testimony. One class of these excep- tions, namely, that in which the oath in litem is received, has long been familiar in Courts administering remedial justice, according to the course of the Roman Law, though in the Common Law tribunals its use has been less frequent and more restricted. The oath in litem is admitted in two classes of cases : first, where it has been already proved that the party against whom it is offered has been guilty of some frawid or other tortious and unwarrantable act of intermeddling 1 In Massachusetts, by force of the statutes respecting costs, a prochein ami is not liable to costs; Crandall v. Slaid, 11 Met. 288 ; and would there- fore seem to be a competent witness. And by Stat. 1839, ch. 107, § 2, an executor, administrator, guardian, or trustee, though a party, if liable only to costs, is made competent to testify to any matter known to him, " before he assumed the trust of his appointment." In Virginia, any such trustee is admissible as a witness, generally, provided some other person shall first stipulate in his stead for the costs to which he may be liable. Rev. Stat. 1849, ch. 176, § 18. 2 Hopkins v. Neal, 2 Stra. 1026 ; James v. Hatfield, 1 Stra. 548; 1 Gilb. Evid. by Lofi"t, p. 225 ; Rex v. St. Mary Magdalen, Bermondsey, 3 East, 7 ; Whitmore v. Wilks, 1 Mood. & M. 220, 221 ; Gresley on Evid. 242, 243, 244; Bellew v. Russell, 1 Ball & Beat. 99; WoUey v. Brownhill, 13 Price, 513, 514, per HuUook, B. ; Barrett v. Gore, 3 Atk. 401 ; Fountain ». Coke, 1 Mod. 107; Goodtitle v. Welford, 1 Doug. 139. In this country, where the party to the record is, in almost every case, liable to costs in the first instance, in suits at law, he can hardly ever be competent as a witness. Fox V. Adams, 16 Mass. 118, 121 ; Sears v. Dillingham, 12 Mass. 360. See also Willis on Trustees, pp. 227, 228, 229 ; Frear v. Evertson, 20 Johns. 142 ; Bellamy v. Cains, 3 Rich. 354 ; \_Supra, § 829 and note.] CHAP. II.] COMPETENCY OF WITNESSES. 493 with the complainant's goods, and no other evidence can be had of the amount of damages; and, secondly, where, on general grounds of public policy, it is deemed essential to the purposes of justice.^ An example of the former class is given in the case of the baUiffs, who, in the service of an execution, having discovered a sum of money secretly hid- den in a wall, took it away and embezzled it, and did great spoil to the debtor's goods ; for which they were holden not only to refund the money, but to make good such other damage as the plaintiff would swear he had sustained.^ So, where a man ran away with a casket of jewels, he was ordered to answer in Equity, and the injured party's oath was allowed as evidence, in odium spoliatoris? The rule is the same at Law. Thus, where a shipmaster received on board his vessel a trunk of goods, to be carried to another port, but on the passage he broke open the trunk and rifled it of its contents ; in an action by the owner of the goods lagainst the shipmaster, the plaintiff, proving alimmde the delivery of the trunk and its violation, was held competent as a witness, on the ground of necessity, to tes- tify to the particular contents of the trunk.* And, on the 1 Tait on Evid. 280. 2 Childrens ». Saxby, 1 Vera. 207; 1 Eq. Ca. Ab. 229, S. C. 3 Anon, cited per the Lord Keeper, in E. Ind. Co. v. Evans, 1 Vern. 308. On the same principle in a case of gross fraud, Chancery will give costs, to be ascertained by the party's own oath. Dyer v. Tymewell, 2 Vern. 122. * Herman v. Drinkwater, 1 'Greenl. 27. See also Sneider ». Geiss, 1 Yeates, 34; Anon. Coram Montague, B., 12 Vin. Abr. 24, Witnesses, 1. pi. 34. Bed vid. Bingham v. Rogers, 6 Watts & Serg. 495. The case of Herman v. Drink- water was cited and tacitly reaffirmed by the Court in Gilmore v. Bowden, 3 Fairf. 412; the admissibility of the party as a witness being placed on the ground of necessity. But it is to be observed that, in Herman v. Drink- ' water, the defendant was guilty of gross fraud, at least, if not of larceny. It was on this ground of gross fraud and misconduct that the rule in this case was agreed to in Snow v. The Eastern Railroad Co. 12 Met. 44 ; the Court denying its application in cases of necessity alone, and in the absence of fraud. Therefore, where an action on the case was brought by a pas- senger against a railway company, for the loss of his_ trunk by their negli- gence, there being no allegation or proof of fraud or tortious act, the Court VOL. I. 42 494 LAW OF EVIDENCE. [PART ni. same principle, the bailor, though a plaintiff, has been ad- mitted a competent witness to prove the contents of a trunk, held, that the plaintiff was not admissible as a witness, to testify to the contents df his trunk. Ibid. As this decision, which has been reported since the last edition of this work, is at variance with that of Clark v. Spence, cited in the next note, the following observations of the Court should be read by the student in this connection : " The law of evidence is not of a fleeting character ; and though new cases are occurring, calling for its ap- plication, yet the-law itself rests on the foundation of the ancient Common Law, one of the fundamental rules of which is, that no person shall be a witness in his own case. This rule has existed for' ages, with very little modification, and has yielded only where, from the nature of the case, other evidence was not to be obtained, and there would be a failure of jus- tice without the oath of the party. These are exceptions to the rule, and form a rule of themselves. In some cases, the admission of the party's oath is in aid of the trial ; and in others, it bears directly on the subject in con- troversy. Thus the oath of the party is admitted in respect to a lost deed, or other paper, preparatory to the offering of secondary evidence to prove its contents ; and also for the purpose of procuring a continuance of a suit, in order to obtain testimony ; and for other reasons. So the oath of a party is admitted to prove the truth of entries in his book, of goods delivered in small amounts, or of daily labor performed, when the parties, from their situation, have no evidence but their accounts, and from the nature of the traffic or service, cannot have, as a general thing. So, in complaints under the bastardy act, where the offence is secret, but yet there is full proof of the fact, the oath of the woman is admitted to charge the individual. In cases, also, where robberies or larcenies have been committed, and where no other evidence exists but that of the party robbed or plundered, he has been admitted as a witness to prove his loss ; as it is said the law so abhors the act that the party injured shall have an extraordinary remedy in odium spoliaioris. Upon this principle in an action against the hundred, under the statute of Winton, the person robbed was admitted as a witness, to prove his loss and the amount of it. Bull. N. P. 187 ; Esp. on Penal Stats. 211 ; 1 Phil. Ev. ch. 5, § 2; 2 Stark. Ev. 681 ; Porter v. Hundred of Regland, Peake's Add. Cas. 203. So in Equity, where a man ran away with a casket of jewels, the party injured was admitted as a witness. East India Co. v. Evans, 1 Vern. 308. A case has also been decided in Maine, Herman ». Drinkwater, 1 Greenl. 27, where the plaintiff was admitted to testify. In that case, a shipmaster received a trunk of goods in London, belonging to the plaintiff, to be carried in his ship to New York, and on board which the plaintiff had engaged his passage. The master sailed, designedly leaving the plaintiff, and proceeded to Portland instead of New York. He there broke open and plundered the trunk. These facts were found aliunde, and the plaintiff was allowed to testify as to the contents of the trunk. These CHAP. II.] COMPETENCY OF WITNESSES. 495 lost by the- negligence of the bailee.^ Such evidence is admitted not solely on the ground of the just odium enter- cases proceed upon the criminal character of the act, and are limited in their nature. The present case does not fall within the principle. Here was no robbery, no tortious taking away by the defendants, no fraud committed. It is simply a case of negligence on the part of carriers. The case is not brought within any exception to the common rule, and is a case of defective proof on the part of the plaintiff, not arising from necessity, but from want of caution. To admit the plaintiff's oath, in cases of this nature, would lead, we think, to much greater mischiefs, in the temptation to frauds and perjuries, than can arise from excluding it. If the party about to travel places valuable articles in his trunk, he should put them under the special charge of the carrier, with a staternent of what they are, and of their value, or provide other evidence, beforehand, of the articles taken by him. If he omits to do this, he then takes the chance of loss, as to the value of the articles, and is guilty, in a degree, of negligence — the very thing with which he attempts to charge the carrier. Occasional evils only have oc- curred, from such losses, tl^rough failure of proof; the relation of carriers to the party being such that the losses are usually adjusted by compromise. And there is nothing to lead us to innovate on the existing rules of evidence. No new case is presented ; no facts which have not repeatedly occurred ; no new combination of circumstances." See 12 Met. 46, 47. [See also Wright V. Caldwell, 3 Mich. 51.] 1 Clark V. Spenee, 10 Watts, E. 335 ; Story on Bailm. § 454, note, (3d ed.) In this case, the doctrine in the text was more fully expounded by Kogers, J., in the following terms : " A party is not competent to testify in his own cause ; but, like every other general rule, this has its exceptions. Necessity, either physical or moral, dispenses with the ordinary rules of evidence. In 12 Vin. 24, pi. 32, it is laid down, that on a trial at Bodnyr, 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 ex necessitate rei. For every one did not show what he put in his box. The same principle is recognized in decisions which have been had on the statute of Hue and Cry in England, where the party robbed is admitted as a witness ex necessitate. Bull. N. P. 181. So, in Herman v. Drinkwater, 1 Greenl. R. 27, a shipmaster having received a trunk of goods on board his vessel, to be carried to another port, which, on the passage, he broke open and rifled of its contents; the owner of the goods, proving the delivery of the trunk and its violation, was admitted as a witness in an action for the goods, against the shipmaster, to testify to the particular contents of the trunk, there being no other evidence of the fact to be obtained. That a party then can be admitted, under certain circum- stances, to prove the contents of a box or trunk, must be admitted. But while we acknowledge the exception, we must be careful not to extend it beyond its legitimate limits. It is admitted from necessity, and perhaps on 496 LAW OF EVIDENCE. [PART III. tained, both in Equity and at Law, against spoliation, but also because, from the necessity of the case and the nature of the subject, no proof can otherwise be expected ; it not being usual even for the most prudent persons, in such cases, to exhibit the contents of their trunks to strangers, or to pro- vide other evidence of their value. For, where the law can have no force but by the evidence of the person in interest, there the rules of the Common Law, respecting evidence in general, are presumed to be laid aside ; or rather, the subor- dinate are silenced bythe most transcendent and universal rule, that in all cases that evidence is good, than which the nature of the subject presumes none better to be attainable.^ § 349. Upon the same necessity, the party is admitted in divers other cases to prove the facts, which, from their nature none but a party could be likely to know. But in such cases. a principle of convenience, because, as is said in Vesey, every one does not show what he puts in a box. This applies with great force to wearing ap- parel, and to every article which is necessary or convenient to the traveller, which, in most cases, are packed by the party himself, or his wife, and which, therefore, would admit of no other proof. A lady's jewelry would come in this class, and it is easier to conceive than to enumerate other arti- cles, which come within the same category. Nor would it be right to restrict the list of articles, which may be so proved, within narrow limits, as the Jury will be the judges of the credit to be attaahed to the witness, and be able, in most cases,, to prevent any injury to the defendant. It would seem to me to be of no xjonsequence, whether the article was sent by a carrier, or accompanied the traveller. The case of Herman v. Drinkwater, I would remark, was decided under very aggravated circumstances, and was rightly ruled. But it must be understood, that such proof can be admitted, merely because no other evidence of the fact can be obtained. For, if a merchant, sending goods to his correspondent, chooses to pack them himself, his neg^ lect to furnish himself with the ordinary proof is no reason for dispensing with the' rule of evidence, which requires disinterested testimony. It is not of the usual course of business, and there must be something peculiar and extraordinary in the circumstances of the case^ which would justify the Court in admitting the oath of the party.'' See 10 Watts, R. 336, 337. See also ace. David v. Moore, 2 Watts & Serg. 230 ; Whitesell ». Crane, 8 Watts. & Serg. 369 '; McGill v. "Eowaud, 8 Barr, 451 ; County v. Leidy, 10 Barr, 45. 1 Gilb. Evid. by Lofft, pp. 244, 245 ; Supra, § 82. CHAP. II.] COMPETENCY OF WITNESSES. 497 a fowndation must first be laid for the party's oath, by proving the other facts of the case down to the period to which the party is to speak. As, for example, if a deed or other mate- rial instrument of evidence is lost, it must first be proved, as we shall hereafter show, that such a document existed ; after which the party's own oath may be received to the fact and circumstances of its loss, provided it was lost out of his own custody,^ To this head of necessity may be referred the admission of the party robbed, as a witness for himself, in an action against the hundred, upon the statute of Winton.^ So, also, in questions which do not involve the matter in controversy, but matter which is auxiliary to the trial, and which in their nature are preliminary to the principal subject of controversy, and are addressed to the Court, the oath of the party is received.^ Of this nature is his affidavit of the 1 Infra, §558; Tayloe v. Eiggs, i Peters, 591, 596; Patterson v. Winn, 5 Peters, 240, 242 ; Riggs v. Taylor, 9 Wheat. 486 ; Taunton Bank v. Richardson, 5 Pick. 436, 442 ; Poignard v. Smith, 8 Pick. 278 ; Page v. Page, 15 Pick. 368, 374, 375; Chamberlain v. Gorham, 20 Johns. 144; Jackson o. Frier, 16 Johns. 193; Douglass v. Saunderson, 2 Ball. 116; 1 Yeates, 15, S. C. ; Meeker v. Jackson, 3 Yeates, 442 ; Blanton v. Miller, 1 Hayw. 4; Seekright v. Began, Id. 178, n. ; Smiley v. Dewey, 17 Ohio, 156. In Connecticut, the party has been adjudged incompetent. Coleman V. Wolcott, 4 Day, 388. But this decision has since been overruled ; and it is now held, that a party to the suit is an admissible witness, to prove to the Court that an instrument, which it is ' necessary to produce at the trial, is destroyed or lost, so as to let in secondary evidence ; that there is no dis- tinction, in this respect, between cases where the action is upon the instru- ment, and those where the question arises indirectly ; and that it is of no importance, in the order of exhibiting the evidence, which fact is first proved, whether the fact of the existence and contents of the instrument, or the fact of its destruction, or loss. Fitch v. Bogue, 19 Conn. 285. In the prosecutions for bastardy, whether by the female herself, or by the town or parish officers, she is competent to testify to facts within her own exclusive knowledge, though in most of the United States, the terms of her admission are prescribed by statute. Drowne v. Simpson, 2 Mass. 441 ; Judson v. Biancfaard, 4 Conn. 557 ; Davis v. Salisbury, 1 Day, 278 ; Mariner v. Dyer, 2 Greenl. 172; Anon. 3 N. Hamp. 135 ; Mather v. Clark, 2 Aik. 209 ; The State V. Coatney, 8 Yerg. 210. a BulL N. P. 187, 289. 3 1 Peters, 596, 597, per Marshall, C. J. See also Anon. Cro. Jac. 429 ; Cook V. Remington, 6 Mod. 237 ; Ward i». Apprice, Id. 264 ; Scoresby v. 42* 498 LAW OP EVIDENCE. [PART III. materiality of a witness ; of diligent search made for a wit- ness, or for a paper ; of his inability to attend ; of the death of a subscribing witness ; and so of other matters, of which the books of practice abound in examples. § 350. The second class of cases, in which the oath in litem is admitted, consists of those in which public necessity or expediency has required it. Some cases of this class have their foundation in the edict of the Roman Praetor : NautcB, caupones, stabularii, quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo^ Though the terms of the edict comprehended only shipmasters, innkeepers, and stable-keepers, yet its principle has been held to extend to other bailees, against whom, when guilty of a breach of the trust confided to them, damages were awarded upon the oath of the party injured, ^er modumpcencB to the defendant, and from the necessity of the case.^ But the Comirion Law has not admitted the oath of the party upon the ground of the Praetor's edict ; but has confined its admission strictly to those cases where, from their nature, no other evidence was attainable.^ Thus, in cases of necessity, where a stat- ute can receive no execution, unless the party interested be a witness, there he must be allowed to testify ; for the statute must not be rendered ineffectual by the impossibility of proof.^ Sparrow, 2 Stra. 1186 ; Jevana v. Harridge, 1 Saund. 9 ; Forbes o. Wale, 1 W. Bl. 632; 1 Esp. 278, S. C. ; Fortescue and Coake's case, Godb. 193; Anon. Godb. 326 ; 2 Stark. Evid. 580, note (2), 6th Am. ed. ; Infra, § 558. . 1 Dig. lib. 4, tit. 9, 1. 1. 2 This head of evidence is recognized in the Courts of Scotland, and is fully explained in Tait on Evid. p. 280-287. In Lovrer Canada, the Courts are bound to admit the decisory oath (serment decisoire) of the parties, in commercial matters, whenever either of them shall exact it of the other. Rev. Stat. 1845, p. 143. 3 Wager of law is hardly an exception to this rule of the Common Law, since it was ordinarily allowed only in oases where the transaction was one of personal and private trust and confidence between the parties. See 3 Bl. Coram. 345, 346. 1 The United States w. Murphy, 16 Peters, R. 203. See infra, i of Practice, §§ 344, 349, ,350 ; Texas, Hartley's Dig., Arts. 735; 739 ; Cali- fornia. Rev. Stat. 1850, c. 142, § 296-303 ; [Supra, § 329 and note.] See Vol. 3, §317. 4 Phil. & Am. on Evid. 158 ; 1 Phil. Evid. 60. The cases which are CHAP. II.] COMPETENCY OF WITNESSES. 501 better opinion is, and so it has been resolved,^ that such a rule would hold out to parties a strong temptation to per- jury ; that it is not supported by principle or authority, and that therefore the party is not admissible, without the consent of all parties to the record, for that the privilege is mutual and joint, and not several. It may also be observed, that the declarations of one of several parties are not always admis- sible against his fellows, and that when admitted, they are often susceptible of explanation or contradiction, where tes- timony under oath could not be resisted. § 355. Hitherto, in treating of the admissibility of parties to the record as witnesses, they have been considered as still retaining their original situation, assumed at the commence- ment of the suit. But as the situation of some of the defend- ants, where there are several in the same suit, may be essen- tially changed in the course of its progress, by default, or nolle prosequi, and sometimes by verdict, their case deserves a dis- tinct consideration. This question has arisen in cases where the testimony of a defendant, thus situated, is material to the defence of his fellows. And here the general doctrine is, that where the suit is ended as to one of several defendants, and he has no direct interest in its event as to the others, he usually cited to support this opinion, are Norden v. Williamson, 1 Taunt. 377 ; Fenn v. Granger, S Campb. 177, and Worrall v. Jones, 7 Bing. 395. But in the first of these eases, no objection appears to have been made on behalf of the other co-plaintiff, that his consent was necessary ; but the de- cision is expressly placed on the ground, that neither party objected at the time. In Fenn v. Granger, Ld. EUeuborough would have rejected the wit- ness, but the objection was waived. In Worrall v. Jones, the naked ques- tion was, whether a defendant who has suffered judgment' by default, and has no interest in the event of the suit, is admissible as a witness for the plaintiff, by his own consent, whfere " the only objection to his admissibility is this, that he is party to the record." See also Willings v. Consequa, 1 Peters, C. C. R. 307, per Washington, J.; Paine v. Tilden, 3 Washb. 554; [Wills u. Judd, 26 Vt. 617.] 1 Scott V. Lloyd, 12 Peters, 149. See also 2 Stark. Evid. 580, note (e) ; Bridges v. Armour, 5 How. S. C. R. 91 ; Evans v. Gibbs, 6 Humph. 405 ; Sargeant v. Sargeant, 3 Washb. 371. 502 LAW OF EVIDENCE. [PART HI. is a competent witness for them, his own fate being at all events certain.^ § 356. In actions on contracts, the operation of this rule was formerly excluded ; for the contract being laid jointly, the judgment by default against one of several defendants it was thought, would operate against him, only in the event of a verdict against the others ; and accordingly he has been held inadmissible in such actions, as a witness in their favor.^ On a similar principle, a defendant thus situated has been held not a competent witness for the plaintiff; on the ground that, by suffering judgment by default, he admitted that he was liable to the plaintiff's demand, and was therefore directly interested in throwing part of that burden on another person.^ But in another case, where the action was upon a bond, and the principal suffered judgment by default, he was admitted as a witness for the plaintiff, against one of the other defendants, his surety ; though here the point submit- ted to the Court was narrowed to the mere abstract question, whether a party to the record was, on that account alone, precluded from being a witness, he having no interest in the event.* But the whole subject has more recently been 1 Infra, §§ 358, 359, 360, 363. - 2 Mant V. Mainwaring, 8 Taunt. 139; Brown v. Brown, 4 Taunt. 752; Schermerhorn v. Sohermerhorn, 1 Wend. 119 ; Columbia Man. Co. v. Dutch, 13 Pick. 125 ; Mills v. Lee,'4 Hill, R. 549 ; [Thornton v. Blaisdell, 37 Mairie, 199; King v. Lowry, 20 Barb. 532.] 3 Green v. Sutton, 2 M. & Rob. 269. 4 Worrall v. Jones, 7 Bing. 395. See Foxeroft v. Nevens, 4 Greenl. 72, contra. In a case before Le Blanc, J., he refused to permit one defendant, who had suffered judgment to go by default, to be called by the plaintiff to inculpate the others, even in an action of trespass. Chapman ». Graves, 2 Campb. 333, 334, note. See ace. Supervisors of Chenango v. Birdsall, 4 Wend. 456, 457. The general rule is, that a party to the record can, in no case, be examined as a witness ; a rule founded principally on the policy of preventing perjury, and the hardship of calling on a party to charge him- self. Frazier v. Laughlin, 1 Gilm. 847; Flint v. AUyn, 12 Verm. 615; Kennedy v. Niles, 2 Shepl. 54 ; Stone v. Bibb, 2 Ala. 100. And this rule is strictly enforced against plaintiffs, because the joining of so many defend^ ants is generally their own act, though sometimes it is a matter of necessity. CHAP. II.] COMPETENCY OP WITNESSES. 503 reviewed in England, and the rule established, that where one of two joint defendants in an action on contract, has suf- fered judgment by default, he may, if not otherwise interested in procuring a verdict for the plaintiff, be caUed by him as a witness against the other defendant.^ ' So, if the defence, in an action ex contractu against several, goes merely to the personal discharge of the party pleading it, and not to that of the others, and the plaintiff thereupon enters a nolle prosequi as to him, which in such cases he may well do, such defend- ant is no longer a party upon the record, and is therefore competent as a witness, if not otherwise disqualified. Thus, where the plea by one of several defendants is bankruptcy,^ or, that he was never executor, or, as it seems by the later and better opinions, infancy or coverture,^ the plaintiff may 2 Stark. Evid. 581, note (a) ; Blaekett v. Weir, 5 B. & C. 387 ; Barrett v. Gore, 3 Atk. 401 ; Bull. N. P. 285; Cas. temp. Hardw. 163. 1 Pipe V. Steel, 2 Ad. & El. 733, N. S. ; Cupper v. Newark, 2 C. & K. 24. Thus, he has been admitted, with his own consent, as a witness to prove that he is the principal debtor, and that the signatures of the other defendants, who are his sureties, are genuine. Mevey v. Matthews, 9 Barr, 112. But generally he is interested; either to defeat the action against both, or to throw on the other defendant a portion of the demand, or to reduce the amount to be recovered. Bowman v. Noyes, 12 N. Hamp. 302 ; George v. Sargeant, Id. 313 ; Vinal v. Burrill, 18 Pick. 29 ; Bull v. Strong, 8 Met. 8 ; Walton v. Tomlin, 1 Ired. 593 ; Turner v. Lazarus, 6 Ala. 875 ; [Manchester Bank v. Moore, 19 N. H. 564 ; Kincaid v. Purcell, 1 Carter, 324.] 2 Noke V. Ingham, 1 Wils. 89 ; 1 Tidd's Pr. 602 ; 1 Saund. 207, a. But see Mills v. Lee, 4 Hill, E. 549. 3 1 Paine & Duer's Pr. 642, 643 ; Woodward v. Newhall, 1 Pick. 500 ; Hartness v. Thompson, 5 Johns. 160 ; Pell v. Pell, 20 Johns. 126 ; Burgess V. Merrill, 4 Taunt. 468. The ground is, that these pleas are not in bar of the entire action, but only in bar as .to the party pleading ; and thus the case is brought within the general principle, that where the plea goes only to the personal discharge of the pa^ty pleading it, the plaintiif may enter a nolle prosequi. 1 Pick. 501, 502. See also Minor v. The Mechanics' Bank of Alexandria, 1 Peters, 74. So, if, the cause is otherwise adjudicated in favor of one of the defendants, upon a plea personal to himself, whether it be by the Common Law, or by virtue of a statute authorizing>a separate find- ing in favor of one defendant, in an action upon a joint contract, the result is the same. Blake v. Ladd, 10 New Hamp. 190 ; Essex Bank v. Eix, Id. 504 LAW OP BVIDENCB. [PAKT III. enter a nolle prosequi as to such party, who, being thus dis- engaged from the record, may be called as a witness, the suit still proceeding against the others.^ The mere pleading of the bankruptcy, or other matter of personal discharge, is not alone sufficient to render the party a competent witness ; and it has been held, that he is not entitled to a previous verdict upon that plea, for the purpose of testifying for the others.^ § 357. In actions on torts, these being in their nature and legal consequences several, as well as ordinarily joint, and there being no contribution among wrongdoers, it has not been deemed necessary to exclude a material witness for the defendants, merely because the plaintiff has joined him with them in the suit, if the suit, as to him, is already deter- mined, and he has no longer any legal interest in the event.^ Accordingly, a defendant in an action for a tort, who has suffered judgment to go by default, has uniformly been held admissible as a witness for his co-defendants.* Whether, 201 ; Brooks o. M'Kenney, 4 Scam. 309. And see Campbell v. Hood, 6 Mis. 211. . 1 Mclver v. Humble, 16 East, 171, per Le Blanc, J., cited 7 Taunt. 607, per Park, J. ; Moody v. King, 2 B. & C. 558 ; Aflalo v. Fourdrinier, 6 Bing. 306. But see Irwin v. Shumaker, 4 Barr, 199. 2 Raven v. Dunning, 3 Esp. 25 ; Emmett v. Butler, 7 Taunt. 699 ; 1 Moore, 332, S. C; Schermerhorn v. Schermerhorn, 1 Wend. 119. But in a later case, since the 49 G. 3, c. 121, Park, J., permitted a verdict to be returned upon the plea, in order to admit the witness. Bate v. Kussell, 1 Mood. & M. 332. Where, by statute, the plaintiff, in an action on a parol contract against 'several, may have judgment against one or more of the defendants, according to his proof, there it has been held, that a defendant who has been defaulted is, with his consent, •» competent witness in favor of his co-defendants. Bradlee v. Neal, 1.6 Pick. 501. But this has since been questioned, on the ground that his interest is to reduce the demand of the plaintiff against the others to nominal damages, in order that no greater damages may be assessed against him upon his default. Vinal v. Burrill, 18 Pick. 29. [Vinal u. Burrill is distinguished from Bradlee v. Neal, by Shaw, C. J., in Gerrish v. Cummings, 4 Cush. 392.] 3 As, if one has bejn separately tried and acquitted. Carpenter «. Crane, 5 Black. 119. 4 Ward V. Haydon, 2 Esp. 552, approved in Hawkesworth v. Showier, CHAP. II.J COMPBTENOY OF WITNESSES. 505 being admitted as a witness, he is competent to testify to the amount of damages, which are generally assessed entire against all who are found guilty,^ may well be doubted.^ And indeed the rule, admitting a defendant as witness for his fellows in any case, must, as it should seem, be limited strictly to the case where his testimony cannot directly make for himself ; for if the plea set up by the other defendants is of such a nature, as to show that the plaintiff has no cause of action against any of the defendants in the suit, the one who suffers judgment by default will be entitled to the benefit of the defence, if established, and therefore is as directly interested as if the action were upon a joint con- tract. It is, therefore, only where the plea operates solely in discharge of the party pleading it, that another defendant. 12 M. & W. 48 ; Chapman v. Graves, 2 Campb. 334, per Le Blanc, J. ; Com- monwealth V. Marsh, 10 Pick. 57, 58. A defendant, in such case, is also a competent witness for the plaintiff, Hadrick v. Heslop, 12 Jur. 600 ; 17 Law J., N. S. 313; 12 Ad. & EI. 266, N. S. The wife of one joint trespasser is not admissible as a witness for the other, though the case is already fully- proved against her husband, if he is still a party to the record; Hawkesworth V. Showier, 12 M. & W. 45. 1 2 Tidd's Pr. 896. 2 In Mash v. Smith, 1 C. & P. 577, Best, C. J., was of opinion, that the witness ought not to be admitted at all, on the ground that his evidence micht give a different complexion to the case, and thus go to reduce the damages against himself; but on the authority of Ward v. Haydon, and Chapman v. Graves, he thought it best to receive the witness, giving leave to the oppos- ing party to move for a new trial. But the point was not moved ; and the report does not show which way was the verdict. It has, however, more recently been held in England, that a defendant in trespass, who has suffered judgment by default, is not a competent witness for his co-defendant, where the Jury are summoned as well to try the issue against the one, as to assess damages against the other. Thorpe v. Barber, 5 M. G. & Sc. 675 ; 17 Law Journ. N. S. 113. And see Ballard v. Noaks, 2 Pike, 45. [Where one of two defendants in an action of trover is defaulted, he is not a competent witness on the trial, for the other, on the ground of interest, even though called to testify to matters not connected with the question of damages ; because, if admissible at all, he is liable to be examined upon all matters pertinent to the issue on trial. Gerrish v. Cummings, 4 Oush. 391 ; Chase V. Lovering, 7 Foster, 295.] VOL. I. 43 506 LAW OF EVIDENCE. [PART in. who has suffered judgment to go by default, is admissible as a witness.! § 358. K the person, who !s a material witness for the defendants, has been improperly joined with them in the suit, for the purpose of excluding his testimony, the Jury will be directed to find a separate verdict in his favor ; in which case, 'the cause being at an end with respect to him, he may be admitted a witness" for the other defendants. But this can be allowed only where there is no evidence whatever against him, for then only does it appear that he was improperly joined, through the artifice and fraud of the plaintiff. But if there be any evidence against him, though, in the Judge's opinion, not enough for his conviction, he cannot be admitted as a witness for his fellows, because his guilt or innocence must wait the event of the verdict, the Jury being the sole judges of the fact.^ In what stage of the cause the party, thus improperly joined, might be acquit- ted, and whether before the close of the case on the part of the other defendants, was formerly uncertain ; but it is now settled, that the application to a Judge, in the course of a cause, to direct a verdict for one or more of several defend- ants in trespass, is strictly to his discretion ; and that discre- tion 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.^ The ordi- nary course, therefore, is to let the cause go on, to the end of 1 2 Tidd's Pr. 895; Briggs v. Greenfield et al. I Str. 610; 8 Mod. 217; 2 Ld. Raym. 1372, S. €. ; Phil. & Am. on Evid. 53, note (3) ; 1 Phil. Evid. 62, n. (1) ; Bowman v. Noyes, 12 N. Hamp. R. 302. . 2 1 Gilb. Evid. by Loflft, p. 250 ; Brown v. Howard, 14 Johns. 119, 122 ; Van Deusen v. Van Slyck, 15 Johns. 223. The admission of the witness, in all these cases, seems to rest in the discretion of the Judge. Brotherton v. Livingston, 3 Watts & Serg. 334 ; [Castle v. BuUard, 23 How. 173.] 3 Sowell V. Champion, 6 Ad. & El. 407 ; White v. Hill, 6 Ad. & El. 487, 491, N. S. ; Commonwealth v. Eastman, 1 Cush. 189; Over v. Blaokstone, 8 Watts & Serg. 71 ; Prettyman urDean, 2 Harringt. 494 ; Brown v. Burnes, 8 Mis. 26. CHAP. II.] COMPETENCY OF WITNESSES. 507 the evidence.^ But if, at the close of the plaintiff's case, there is one defendant against whom no evidence has been given, and none is anticipated with any probability, hie instantly will be acquitted.^ The mere fact of mentioning the party in the simul cum, in the declaration, does not render him incompetent as a witness ; but if the plaintiff can prove the person so named to be guilty of the trespass, and party to the suit, which must be by producing the original pro- cess against him, and proving an ineffectual endeavor to arrest him, or that the process was lost, the defendant shall not have the benefit of his testimony.^ 1 6 Ad. & EI. 491, N. S., per Ld. Denman. 2 Child V. Chamberlain, 6 C. & P. 213. It is not easy to perceive why the same principle should not be applied to actions upon contract, where one of the defendants pleads a matter in his own personal discharge, such as infancy or bankruptcy, and establishes his plea by a certificate, or other affirmative proof, which the plaintiff does not pretend to gainsay or resist. See Bate v. Kussell, 1 Mood. & M. 332. Upon Emmett v. Butler, 7 Taunt. 599, where it was not allowed, Mr. Phillips very justly observes, that the plea was not the common one of bankruptcjj and certificate ; but that the plaintiffs had proved, (under the commission,) and thereby made their election ; and that where a plea is special, and involves the consideration of many facts, it is obvious that there would be much inconvenience in splitting the case, and taking separate verdicts ; but there seems to be no such inconvenience where the whole proof consists of the bankrupt's certificate. Phil. & Am. on Evid. p. 29, note (3); [Beasley v. Bradley, 2 Swan, 180; Cochran o. Ammorf, 16 111. 316.] 3 Bull. N. P. 286 ; 1 Gilb. Evid. by Loffit, p. 251 ; Lloyd v. Williams, Cas. temp. Hardw. 123; Cotton v. Luttrell, 1 Atk. 452. "These cases appear to have proceeded upon the ground, that a co-trespasser, who had originally been made a party to the suit upon sufficient grounds, ought not to come forward, as a witness to defeat the plaintiff, after he had prevented the plaintiff from proceeding effectually against him, by his own wrongful act in eluding the process." Phil. & Am. on Ev. p. 60, note (2). But see Stockham v. Jones, 10 Johns. 21, contra. See also 1 Stark. Evid. 132. In Wakeley v. Hart, 6 Binn. 316, all the defendants, in trespass, were arrested, but the plaintiff went to issue with some of them only, and did not rule the others to pfead, nor take judgment against them by default ; and they were held competent witnesses for the other defendants. The learned Chief Jus- tice placed the decision partly upon the general ground, that they were not interested in the event of the suit ; citing and approving the case of Stock- ham V. Jones, supra. But he also laid equal stress upon the fact, that the 508 LAW OF EVIDENCE. [PART III. § 359. If the plaintiff, in trespass, has by mistake made one of his own intended witnesses a defendant, the Court will, on motion, give leave to omit him, and have his name stricken from the record, even after issue joined.^ In criminal infor- mations, the same object is attained by entering a nolle pro- sequi^ as to the party intended to be examined ; the rule, that a plaintiff can in no case examine a defendant, being enforced in criminal as well as in civil cases.^ § 360. If a material witness for a defendant in ejectment be also made a defendant, he may let judgment go by de- fault, and be admitted as a witness for the other defendant. But if he plead, thereby admitting himself tenant in posses- sion, the Court will not afterwards, upon motion, strike out his name.^ But where he is in possession of only a part of the premises, and consents to the return of a verdict against him for as much as he is proved to have in possession, Mr. Justice Buller said, he could see no reason why he should not be a witness for another defendant.* plaintiff might have conducted his cause so as to have excluded the witnesses, by laying them under a rule to plead, and taking judgment by default. In Purviance v. Dryden, 3 S. & K. 402, and Gibbs v. Bryant, 1 Pick. 118, both of which were actions upon contract, where the process was not served as to one of the persons named as defendant with the other, it was held, that he was not a party to the record, not being served with process, and so was not incompetent as a witness on that account. Neither of these cases, there- fore, except that of Stockham v. Jones, touches the ground of public policy for the prevention of fraud in cases of tort, on which the rule in the text seems to have been founded. Idea qucere. See also Curtis v. Graham, 12 Mart. 289 ; Heckert v. Fegely, 5 Watts & Serg. 333. 1 Bull. N. P. 285 ; Berrington d. Dormer v. Fortescue, Cas. temp. Hardw. 162, 163. 2 Ibid. 3 Ibid. * Bull. N. P. 286. But where the same Jury are also to assess damages against the witness, it seems he is not admissible. See Mash v. Smith, 1 G. & P. 577 ; Supra, § 356. [Where the Court in its discretion orders several actions, depending on the same evidence, to be tried together, the testimony of a witness who is competent in one of the actions, is not to be excluded because it is inadmissible in the others, and may possibly have some effect on CHAP. II.] COMPETENCY OP WITNESSES. 509 § 361. In Cha/ncery, parties to the record are subject to ex- amiriation as witnesses, much more freely than at law. A plaintiff may obtain an order, as of course, to examine a de- fendant, and a defendant a co-defendant, as a witness, upon affidavit that he is a material witness, and is not interested on the side of the applicant, in the matter to which it is pro- posed to examine him ; the order being made subject to all just exceptions.^ And it may be obtained ex parte, as well after as before decree.^ If the answer of the defendant has been replied to, the replication must be withdrawn before the plaintiff can examine him. But a plaintiff cannot be examined by a defendant, except by consent, unless he is merely a trustee, or has no beneficial interest in the matter in question.^ Nor can a co-plaintiff be examined by a plain- tiff, without the consent of the defendant. The course in the latter of such cases is, to strike out his name as plain- the decision of them ; and the Jury should be directed to confine the testi- tnony of the witness to the case in which he is competent. Kimball v. Thompson, 4 Cush. 441. See also Reeves v. Matthews, 17 Geo. 449.] 1 2 Daniel's Chan. Pr. 1035, note, (Pfertins's ed.) ; Id. 1043 ; Ashton v. Parker, 14 Sim. 632. But where there are several defendants, one of whom alone has an interest in defeating the plaintifi''s claim, the evidence of the defendant so interested, though taken in behalf of a co-defendant, is held inadmissible. Clark v. Wyburn, 12 Jur. 613. It has been held in Massa- chusetts, that the answer of one defendant, so far as it is responsive to the bill, may be read by another defendant, as evidence in his own favor. Mills v. Gore, 20 Pick. 28. 3 Steed V. Oliver, 11 Jur. 365 ; Paris v. Hughes, 1 Keen, 1 ; Van v. Corpe, 3 My. & K. 269. 3 The reason of this rule has often been called in question.; and the opin- ion of many of the profession is inclined in favor of making the right of examination of parties in equity reciprocal, without the intervention of a cross-bill. See 1 Smith's Ch. Pr. 459, n. (1) ; Report on Chancery Prac- tice, App. p. 153, Q. 49. Sir Samuel Romilly was in favor of such change in the practice. Id. p. 54, Q. 266 ; 1 Hoffman's Ch. Pr. 345. In some of the United States, this has already been done by statute. See New York, Code of Practice, §§ 390, 395, 396 (Blatchford's ed.) ; Ohio, Rev. St. 1841, ch. 87, § 26 ; Missouri, Rev. St. 1845, ch. 137, art. 2, §§ 14, 15 ; New Jersey, Kev. St. 1846, tit. 23, ch. 1, § 40; Texas, Hartley's Dig. arts. 735, 739 ; Wis- consin, Rev. St. 1849, ch. 84, § 30 ; California, Rev. St. 1850, ch. 142, § 296- 303. 43* 610 LAW OF EVIDENCE. [PAIIT III. tiff, and make him a defendant ; and, in the former, to file a cross-bill.^ § 362. The principles which govern in the admission or exclusion of parties as witnesses in civil cases, are in general applicable, with the like force, to criminal prosecutions, ex- cept so far as they are affected by particular legislation, or by considerations of public policy. In these cases, the State is the party prosecuting, though the process is usually, and in some cases always, set in motion by a private individual, commonly styled the prosecutor. In general, this individual has no direct and certain interest in the event of the prosecu- tion ; and therefore he is an admissible witness. Formerly, indeed, it was supposed that he was incompetent, by reason of an indirect interest, arising from the use of the record of conviction as evidence in his favor in a civil suit ; and this opinion was retained down to a late period, as applicable to cases of forgery, and especially to indictments for perjury. But it is now well settled, as will hereafter more particularly be shown,^ that the record in a criminal prosecution cannot be used as evidence in a civU suit, either at law or in equity, except to prove the mere fact of the adjudication, or a judi- cial confession of guilt by the party indicted.^ The prosecu- 1 1 Smith's Ch. Pr. 343, 344 ; 1 HoflFman's Ch. Pr. 485-488. See^ further, Gresley on Evid. 242, 243, 244 ; 2 Mad. Chan. 415, 416 ; Neilson v. McDon- ald, 6 Johns. Ch. 201 ; Souverbye v. Arden, 1 Johns. Ch. 240 ; 2 Daniel's Ch. Pr. 455, 456 ; Piddock v. Brown, 3 P. W. 288 ; Murray v. Shadwell, 2 V. & B. 401 ; Hoffm. Master in Chanc. 18, 19 ; Cotton v. Luttrell, 1 Atk. 451. 2 Infra, § 537. 3 Kex V. Boston, 4 East, 572 ; Bartlett v. Pickersgill, Id. 577, n. ; Gibson V. McCarty, Cas. temp. Hardw. 311 ; Richardson u. Williams, 12 Mod. 319; Keg. V. Moreau, 36 Leg. Obs. 69 ; 11 Ad. & EI. 1028; Infra, § 537. The exception which had grown up in the case of forgery, was admitted to be an anomaly in the law, in 4 East, 582, per Lord Ellenborough, and in 4 B. & Aid. 210, per Abbott, C. J. ; and was finally removed by the declaratory act, for such in effect it certainly is, of 9 Geo. 4, c. 32, § 2. In this country, with the exception of a few early cases, the party to the forged instrument has been held admissible as a witness, on the general principles of the crim- CHAP. II.] COMPETENCY OE WITNESSES. 511 tor, therefore, is not incompetent on the ground that he is a party to the record ; but whether any interest which he may have in the conviction of the offender, is sufficient to render him incompetent to testify, will be considered more appro- priately under the head of incompetency, from interest.^ § 363. In regard to defendants in criminal cases, if the State would call one of them, as a witness against others in the same indictment, this can be done only by discharging him from the record ; as, by the entry of a nolle prosequi ; ^ or, by an order for his dismissal and discharge, where he has pleaded in abatement as to his own person, and the plea is not answered ; ^ or, by a verdict of acquittal, where no evi- dence, or not sufficient evidence, has been adduced against him. In the former case, where there is no proof, he is en- titled to the verdict ; and it may also be rendered at the request of the other defendants, who may then call him as a witness for themselves, as in civil cases. In the latter, where there is some evidence against him, but it is deemed insufficient, a separate verdict of acquittal may be entered, at the instance of the prosecuting officer, who may then call him as a witness against the others.* On the same principle, where two were indicted for an assault, and one submitted and was fined, and paid the fine, and the other plea:ded not guilty ; the former was admitted as a competent witness for the latter, because as to the witness the matter was at an end.^ But the matter is not considered as at an end, so as to render one defendant a competent witness for another, by inal law. See Commonwealth v. Snell, 3 Mass. 82 ; The People v. Dean, 6 Cowen, 27; Furber w. Hilliard, 2 N. Hamp. 480 ; Kespublica v. Ross, 2 Dall. 239 ; The State v. Foster, 3 McCord, 442. 1 Infra, § 412-414. 2 Bull. N. P. 285 ; Cas. temp. Hardw. 163. • 3 Rex V. Sherman, Cas. temp. Hardw. 303. 4 Rex V. Rowland, Ry. & M. 401 ; Rex v. Mutineers of The Bounty, cited arg. 1 East, 312, 313.' « Rex V. Fletcher, 1 Stra. 633 ; Regina v. Lyons, 9 C. & P. 555 ; Regina V. Williams, 8 C. & P. 283 ; Supra, § 368 ; Commonwealth v. Eastman, 1 Cush. 189. 512 LAW OP EVIDENCE. [PART III. anything short of a final judgment, or a plea of guilty.^ Therefore, where two were jointly indicted for uttering a forged note, and the trial of one of them was postponed, it was held, that he could not be called as a witness for the other.^ So, where two, being jointly indicted for an assault, pleaded separately not guilty, and elected to be tried sepa- rately, it was held, that the one tried first could not caU the other as a witness for him.^ § 364. Before we dismiss the subject of parties, it may be proper to take notice of the case, where the facts are person- ally known by the Judge before whom the cause is tried. And whatever difference of opinion may once have existed on this point, it seems now to be agreed, that the same per- son cannot be both witness and Judge, in a cause which is on trial before him. If he is the sole Judge, he cannot be sworn; and if he sits with others, he still can hardly be deemed capable of impartially deciding on the admissibility of his own testimony, or of weighing it against that ,of another.* Whether his knowledge of common notorieity is 1 Regina v. Hincks, 1 Denis. C. C. 84. [Where two defendants were jointly indicted for an assault, and one was defaulted on his recognizance, his wife was held to be a competent witness for the other defendant. State V. Worthing, 31 Maine, 62.] 2 Commonwealth v. Marsh, 10 Pick. 57. 3 Xhe People v. Bill, 10 Johns. 95 ; [Mclntyre v. People, 5 Selden, 38.] In Kex V. Lafone, 5 Esp. 154, where one defendant suffered judgment by default, Lord Ellen borough held him incompetent to testify for the others ; apparently on the ground, that there was a community of guilt, and that the offence of one was the offence of all. But no authority was cited in the case, and the decision is at variance with the general doctrine in cases of tort. The reason given, moreover, assumes the very point in dispute, namely, whether there was any guilt at all. The indictment was for a mis- demeanor, in obstructing a revenue officer in the execution of his duty. See I Phil. Evid. 68. But where two were jointly indicted for an assault and battery, and one of them, on motion, was tried first, the wife of the other was held a competent witness in his favor. Moffit v. The State, 2 Humph. 99. And see Jones v. The State, 1 Kelly, 610 ; The Commonwealth v. Manson, 2 Ashm, 31 ; Supra, § 335, note ; The State v. Worthing, 1 Eedingt. (31 Maine,) 62. 4 Ross V. Buhler, 2 Martin, N. S. 313. So is the law of Spain, Partid. 3, CHAP. II.] COMPETENCY OF WITNESSES. 513 admissible progf of that fact, is not so clearly agreed.^ On grounds of public interest and convenience, a Judge cannot be called as a witness to testify to what took place before him in the trial of another cause ; ^ though he may testify to foreign and collateral matters, which happened in his pres- ence while the .trial was pending, or after it was ended.^ In regard to attorneys, it has in England been held a very objectionable proceeding on the part of an attorney to give evidence, when acting as advocate in the cause ; and a suffi- cient ground for a new trial.* But in the United States no case has been found to proceed to that extent ; and the fact is hardly ever known to occur. § 365. We proceed now to consider the second class of persons incompetent to testify as witnesses, namely, that of persons deficient in understanding. We have already seen^ that one of the main securities, which the law has provided for the purity and truth of oral evidence, is, that it ' be delivered under the sanction of an oath ; and that this is tit. 16, 1. 19; l.Moreau & Carlton's Tr. p. 200 ; and of Scotland, Glassford on Evid. p. 602; Tait on Evid. 432 ; Stair's Inst, book iv. tit. 45, 4 ; Ers- kine's Inst, book iv. tit. 2, 33. If his presence on the bench is necessary to the legal constitution of the Court, he cannot be sworn as a witness, even by consent ; and if it is not, and his testimony is necessary in the cause on trial, he should leave the bench until the trial is finished. Morss v. Morss, 4 Am. Law Rep. 611, N. S. This principle has not been extended to jurors. Though the Jury may use their general knowledge on the subject of any question before them ; yet, if any juror has a particular knowledge, as to which he can testify, he must be sworn as a witness. Rex v. Rosser, 7 C. & P. 648 ; Stones v. Byron, 4 Dowl. & L. 393. See infra, § 386, note. 1 Lord Stair and Mr. Erskine seem to have been of opinion that it was, " unless it be overruled by pregnant contrary evidence." But Mr. Glass- ford and Mr. Tait are of the contrary opinion. See the places cited in the preceding note. 2 Regina v. Gazard, 8 C. & P. 595, per Patteson, J. 8 Rex V. E. of Thanet, 27 Howell's St. Tr. 847, 848. See supra, § 252, as to the admissibility of jurors. 4 Dunn V. Packwood, 1 1 Jur. 242, a. 5 Supra, § 327. 614 LAW OF EVIDENCE. [PART III. none other than a solemn invocation of the Supreme Being, as the Omniscient Judge. The purpose of the law being to lay hold on the conscience of the witness by this religious solemnity, it is obvious, that persons incapable of compre- hending the nature and obligation of an oath ought not to be admitted as witnesses. The repetition of the words of an oath would, in their case, be but an unmeaning formality. It makes no difference from what cause this defect of under- standing may have arisen ; nor whether it be temporary and curable, or permanent : whether the party be hopelessly an idiot, or maniac, or only occasionally insane, as a lunatic ; or be intoxicated ; or whether the defect arises from mere immaturity of intellect, as in the case of children. While the deficiency of under stamding exists, be the cause of what nature soever, the person is not admissible to be sworn as a witness. But if the cause be temporary, and a lucid interval should occur, or a cure be effected, the competency also is restored.^ 1 6 Com. Dig. 351, 352, Testmoigne, A. 1 ; Livingston v. Kiersted, 10 Johns. 862 ; Evans v. Hettioh, 7 Wheat. 453, 470 ; White's case, 2 Leach, Cr. Cas. 482 ; Tait on Evid. pp. 342, 343. The fact of want of understanding is to be proved by the objecting party, by testimony aliunde. Kobinson v. Dana, 16 Verm. 474. See, as to intoxication, Hartford v. Palmer, 16 Johns. 143 ; Gebhart o. Skinner, 15 S. & R. 235 ; Heinec. ad' Pandect. Pars. 3, § 14. Whether a monomaniac is a competent witness, is a point not known to have been directly decided ; and upon which text-writers differ in opinion. Mr. Koscoe deems it the safest rule to exclude their testimony. Rose. Crim. Evid. p. 128. Mr. Best considers this " hard measure." Best, Princ. Evid. p. 168. In a recent case before the Privy Council, where a will was con- tested on the ground of incapacity in the mind of the testator, it was held, that if the mind is unsound on one subject, and this unsoundness is at all times existing upon that subject, it is erroneous to suppose the mind of such a person really sound on other subjects ; and that, therefore, the will of such a person, though apparently ever so rational and proper, was void. . Waring V. Waring, 12 Jur. 947, Priv. C. Here, the power of perceiving facts is sound, but the faculty of comparing and of judging is impaired. But where, in a trial for manslaughter, a lunatic patient was admitted as a witness, who had been confined in a lunatic asylum, and who labored under the delusion, both at the time of the transaction and of the trial, that he was possessed by twenty thousand spirits, but whom the medical witness believed to be capable of giving an account of any transaction that happened before his eyes, and CHAP. II.J COMPETENCY OF WITNESSES. 515 § 366. In regard to persons deaf and damb firom their birth, it has been said that, in presumption of law, they are idiots. And though this presumption has not now the same degree of force which was formerly given to it, that unfortunate class of persons being found by the light of modern science, to be much more intelligent in general, and susceptible of far higher culture, than was once supposed ; yet still the pre- sumption is so far operative, as to devolve the burden of proof on the party adducing the witness, to show that he is a person of sufficient understanding. This being done, a deaf mute may be sworn and give evidence, by means of an interpreter.^ If he is able to communicate his ideas perfectly by writing, he will be required to adopt that, as the more satisfactory, and therefore the better method ; ^ but if his knowledge of that method is imperfect, he will be permitted to testify by means of signs.^ § 367. But in respect to children, there is no precise age within which they are absolutely excluded, on the presump- tion that they have not sufficient understanding. At the age of fourteen, every person is presumed to have common discretion and understanding, until the contrary appears ; but under that age it is not so presumed ; and therefore inquiry who appeared to understand the obligation of an oath, and to believe in future rewards and punishments ; — it was held, that his testimony was properly received. And that where a perion, under an insane delusion, is ofl'ered as a witness, it is for the Judge, at the time, to decide upon his competency as a witness, and for the Jury to judge of the credibility of his evidence. Keg. V. Hill, 15 Jur. 470 ; 5 Eng. Law & Eq. Kep. 547 ; 5 Cox, Cr. Cas. 259; [Holcomb v. Holcomb, 28 Conn. 177.] 1 Rustin's case, 1 Leach, Cr. Cas. 455 ; Tait on Evid. p. 343 ; 1 Russ. on Crimes, p. 7 ; 1 Hale, P. C. 34. Lord Hale refers, for authority as to the ancient presumption, to the Laws of King Alfred, c. 14, which is in these words : — "Si quis mutus vel surdus natus sit, ut peccata sua confiteri nequeat, nee inficiari, emendet pater soelera ipsius." Vid. Leges Barbaror. Antiq. Vol. 4, p. 249 ; Ancient Laws and Statutes of England, Vol. 1, p. 71. 2 Morrison v. Lennard, 3 C. & P. 127. 3 The State v. De Wolf, 8 Conn. 98 ; Commonwealth v. Hill, 14 Mass. 207 ; Snyder v. Nations, 5 Blackf. 295. 516 LAW OF EVIDENCE. [PART III. is made as to the degree of understanding, which the child offered as a witness may possess ; and if he appears to have ' sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect of an oath, he is admitted to testify, whatever his age may be.^ This exami- nation of the child, in order to ascertain his capacity to be sworn, is made by the Judge at his discretion ; and though, as has been just said, no age has been precisely fixed, within which a child shall be conclusively presumed incapable, yet, in one case a learned Judge promptly rejected the dying declarations of a child of four years of age, observing, that it was quite impossible that she, however precocious her mind, could have had that idea of a future state, which is necessary to make such declarations admissible.^ On the other hand, it is not unusual to receive the testimony of children under nine, and sometimes even under seven years of age, if they appear to be of sufficient understanding ; ^ and it has been admitted even at the age of five years.* If the child, being a principal witness, appears not yet sufficiently instructed in the nature of an oath, the Court will, in its discretion, put off the trial, that this may be done.^ But whether the trial 1 MoNally's Evid. p. 149, ch. 11 ; Bull. N. P. 293 ; 1 Hale, P. C. 302 ; 2 Euss. on Crimes, p. 590 ; Jackson v. Gridley, 18 Johns. 98. 2 Rex V. Pike, 3 C. & P. 598 ; The People v. McNair, 21 Wend. 608. Neither can the declarations of such a child, if living, be receiyed in evi- dence. Bex V. Brasier, 1 East, P. C. 443. 3 1 Bast, P. C. 442; Commonwealth v$ Hutchinson, 10 Mass. 225 ; Mc- Nally's Evid. p. 154 ; The State v. Whittier, 8 Shepl. 341. , ' 4 Kex V. Brasier, 1 Leach, Cr. Cas. 237 ; Bull. N. P. 293, S. C. ; 1 East, P. C. 443, S. C. 5 McNally's Evid. p. 154 ; Rex v. White, 2 Leach, C. Cas. 482, note (a) ; Rex V. Wade, 1 Mood. Cr. Cas. 86. But in a late case, before Mr. Justice Patteson, the learned Judge said, that he must be satisfied that the child felt the binding obligation of an oath, from the general course of her religious education ; and that the effect of the oath upon the conscience should arise from religious feelings of a permanent nature, and not merely from instruc- tions, confined to the nature of an oath, recently communicated, for the pur- pose of the particular trial. And, therefore, the witness having been visited but twice by a clergyman, who had given her some instructions as to the nature of an oath, but still she had but an imperfect understanding on the CHAP. II.] COMPETENCY OF WITNESSES. 517 ought to be put off for the purpose of instructing an adult witness, has been doubted.^ § 368. The third class of persons incompetent to testify as witnesses, consists of those who are insensible to the OBLIGATIONS OF AN OATH, from defect of religious sentiment and belief. The very nature of an oath, it being a religious and most solemn appeal to God, as the Judge of all men, presupposes that the witness believes in the existence of an omniscient Supreme Being, who is " the rewarder of truth and avenger of falsehood;"^ and that, by such a formal appeal, the conscience of the witness is affected. Without this belief, the person cannot be subject to that sanction, which the law deems an indispensable test of ti-uth.^ It is not sufficient, that a witness believes himself bound to speak the truth from a regard to character, or to the common inter- subjeot, lier evidence was rejected. Rex v. Williams, 7 C. & P. 320. In a more recent case, where the principal witness for the prosecution was a female child, of six years old, wholly ignorant of the nature of an oath, a postponement of the trial was moved for,, that she might be instructed on that subject ; but Pollock, C. B., refused the motion •as tending to endanger the safety of public justice ; observing that more probably would be lost in memory, than would be gained in point of religious education ; adding, how- ever, that in cases where the intellect was sufficiently matured, but the edu- cation only had been neglected, a postponement might be very proper. Regina «. Nicholas, 2 C. & K. 246. 1 See Rex v. Wade, 1 Mood. Cr. Cas. 86. 2 Per Ld. Hardwicke, 1 Atk. 48! The opinions of the earlier as well as later Jurists, concerning the nature and obligation of an oath, are quoted and discussed much at large, in Omichund v. Barker, 1 Atk. 21, and in Tyler on Oaths, passim, to which the learned reader is referred. 3 1 Stark. Evid. 22. " The law is wise in requiring the highest attainable sanction for the truth ot testimony given ; and is consistent in rejecting all witnesses incapable of feeling this sanction, or of receiving this test ; whether this incapacity arises from the imbecility of their understandinor, or from its perversity. It does not impute guilt or blame to either. If the witness is evidentjy intoxicated, he is not allowed to be sworn ; because, for the time being, he is evidently incapable of feeling the force and obligation of an oath. The non compos, and the infant of tender age, are rejected for the same reason, but without blame. The atheist is also rejected, because he, too, is incapable of realizing the obligation of an oath, in consequence of VOL. I. 44 518 LAW OF EVIDENCE [PART III. ests of society, or from fear of the punishment which the law inflicts upon persons guilty of perjury. Such motives have indeed their influence, but they are not considered as afford- ing 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 sanc- tion implied in an oath ; and, as a necessary consequence, rejects all witnesses, who are incapable of giving this secu- rity.^ Atheists, therefore, and all infidels, that is, those who profess no religion that can bind their consciences to speak truth, are rejected as incompetent to testify as witnesses.^ § 369. As to the nature and degree of religious faith required in a witness, the rule of law, as at present under- stood, seems to be this, that the person is competent to tes- tify, if he believes in the being of God, and a future state of rewards and punishments ; that is, that Divine punishment will be the certain conseqaence of peijury. It may be con- sidered as now generally settled, in this country, that it is not material, whether the witness believes that the punish- his unbelief. The law looks only to the fact of incapacity, not to the cause, or the manner of avowal. Whether it be calmly insinuated with the ele- gance of Gibbon, or roared forth in the disgusting blasphemies of Paine; still it is atheism ; and to require the mere formality of an oath, from one who avowedly despises, or is incapable of feeling, its peculiar sanction, would be but a mockery of justice." 1 Law Reporter, pp. 346, 347. 1 1 Phil. Evid. 10, (9th ed.) 2 Bull. N. P. 292 ; 1 Stark. Evid. 22 ; 1 Atk. 40, 45 ; 1 Phil. Evid. 10, (9th ed.) The objection of incompetency, from the want of belief in the existence of God, is abolished, as it seems, in Michigan, by force of the statute which enacts that no person shall be deemed incompetent as a wit- ness " on account of his opinions on the subject of religion." Rev. Stat. 1846, ch. 1,02, § 96. So in Maine, Stat. 1847, eh. 34. And in Witconsin, Const. Art. 1, § 18. And in Missouri, Rev. St. 1845, ch. 186, § 21. In some other States, it is made sufficient, by statute, if the witness believes in the existence of a Supreme Being. Connecticut, Rev. Stat. 1849, tit. 1, § 140 ; New Hampshire, Rev. Stat. 1842, ch. 188, § i. In others, it is requi- site that the witness should believe in the existence of a Supreme Being, who will punish false swearing. New York, Rev. Stat. Vol. 2, p. 505, (3d edit.) ; Missouri, Rev. Stat. 1835, p. 419. CHAP. II.] COMPETENCY OF WITNESSES. 519 ment will be inflicted in this world, or in the next. It is enough, if he has the religious sense of accountability to the Omniscient Being, who is invoked by an oath.^ § 370. It should here be observed, that defect of religious faith is never presumed. On the contrary, the law presumes that every man brought up in a Christian land, where God is generally acknowledged, does believe in him, and fear him. The charity of its judgment is extended alike to all. The burden of proof is not on the party adducing the witness, to prove that he is a believer ; but it is on the objecting party, to prove that he is not. Neither does the law presume that any man is a. hypocrite. On the contrary, it presumes him to be what he professes himself to be, whether atheist, or Christian ; and the state of a man's opinions, as well as the 1 The proper test of the competency of a witness on the score of a relig- ious belief was settled, upon great consideration, in the case of Omichund V. Barker, Willes, 545 ; 1 Atk. 21, S. C. to be the belief of a God, and that he will reward and punish us according to pur deserts. This rule was recognized in Butts v. Swartwood, 2 Cowen, 431 ; The People v. Matteson, 2 Cowen, 433, 573, note ; and by Story, J., in Wakefield v. Ross, 5 Mason, 18; 9 Dane's Abr. 317, S. P.; and see Brock v. Milligan, 1 Wilcox, 125; Arnold v. Arnold, 13 Verm. 362. Whether any belief in a future state of existence is necessary, provided accountability to God in this life is acknowl- edged, is not perfectly clear. In Commonwealth v. Bacheler, 4 Am. Jurist, 81, Thacher, J., seemed to think it was. But in Hunscom v. Hunscom, 14 Mass. 184, the Court held, that mere disbelief in a future existence went only to the credibility. This degree of disbelief is not inconsistent with the faith required in Omichund o. Barker. The only case, clearly to the con- trary, is Atwood V. Welton, 7 Conn. 66. In Curtis u. Strong, 4 Day, 51, the witness did not believe in the obligation of an oath ; and in Jackson v. Gridley, 18 Johns. 98, he was a mere atheist, without any sense of religion whatever. All that was said, in these two cases, beyond the point in judg- ment was extrajudicial. In Maine, a belief in the existence of the Supreme Being was rendered sufficient, by Stat. 1833, ch. 58, without any reference to rewards or punishments. Smith v. Coffin, 6 Shepl. 157 ; but even this seems to be no longer required. See supra, § 368, note. See further. The People 17. McGarren, 17 Wend. 460; Cubbison v. McCreary, 2 Watts & Serg. 262; Brock v. Milligan, 10 Ohio, 121; Thurston v. Whitney, 2 Law Rep. 18, N. S. ; [Blair v. Seaver, 26 Penn. State R. 274 ; Bennett v. State, 1 Swann, 44.] 520 LAW op EVIDENCE. [PART III. sanity of his mind, being once proved is, as we have already seen,^ presumed to continue unchanged, until the contrary is shown. The state of his religious belief, at the time he is offered as a witness, is a fact to be ascertained ; and this is presumed to be the common faith of the country, unless the objector can prove that it is not. The ordinary mode of showing this is by evidence of his declarations, previously made to others ; the person himself not being interrogated ; ^ for the object of interrogating a witness, in these cases, before he is sworn, is not to obtain the knowledge of other facts, but to ascertain from his answers, the extent of his capacity, and whether he has sufficient understanding to be sworn.^ 1 Supra, § 42 ; The State v. Stinson, 7 Law Reporter, 383. 2 [The question whether a witness is, or is not an atheist, and so an in- competent witness, is a question of fact for the presiding Judge alone, and his decision is not open to exception. Commonwealth v. Hills, 10 Cush. 530, 632. The want of such religious belief must be established by other means than the examination of the witness upon the stand. He is not to be questioned as to his religious belief, nor required to divulge his opinion upon that subject in answer to questions put to him while under examina- tion. If he is to be set aside for want of such religious belief, the fact is to be shown by other witnesses, and by evidence of his previously expressed opinions voluntarily made known to others. By Shaw, C. J., in Common- wealth 0. Smith, 2 Gray, 516. In this ease the witness had testified in chief, and on cross-examination was asked if he believed in the existence of a God, and replied that he did. Upon this the Court interposed and refused to allow counsel to put further questions in regard to the religious belief of the witness, and the Court say : " Aside, therefore, of the propriety of allowing further inquiry, after the witness had answered affirmatively the general question of his belief in the existence of God, in the opinion of the Court, the whole inquiry of the witness upon this matter was irregular and unauthorized."] 3 Swift's Evid. 48 ; Smith v. Coffin, 6 Shepl. 157. It has been questioned, whether the evidence of his declarations ought not to be confined to a period shortly anterior to the time of proving them, so that no change of opinion might be presumed. Brock v. Milligan, 1 Wilcox, 126, per Wood, J. " The witness himself is never questioned in modern practice, as to his religious belief, though formerly it was otherwise. (1 Swift's Dig. 739 ; 6 Mason, 19 ; American Jurist, Vol. 4, p. 79, note.) It is not allowed even after he has been sworn. (The Queen's case, 2 B. & B. 284.) Not because it is a question tending to disgrace him, but because it would be a personal CHAP. II.] COMPETENCY OF WITNESSES. 521 § 371. It may be added, in this place, that all witnesses are to be sworn according to the peculiar ceremonies of their scrutiny into the state of his faith, and conscience, foreign to the spirit of our institutions. No man is obliged to avow his belief; but if he voluntarily does avow it, there is no reason why the avowal should not be proved, like any other fact. The truth and sincerity of the avowal, and the continuance of the belief thus avowed, are presumed, and very justly too, till they are disproved. If his opinions have been subsequently changed, this change will generally, if not always, be provable in the same mode. (Atwood v. Welton, 7 Conn. 66; Curtis v. Strong, 4 Day, 51; Swift's Evid. 48-50; Scott V. Hooper, 14 Verm. 535 ; Mr. Christian's note to 3 Bl. Comm. 369 ; 1 Phil. Evid. 18; Commonwealth v. Bachelor, 4 Am. Jur. 79, note.) If the change of opinion is very recent, this furnishes no good ground to admit the witness himself to declare it; because of the greater inconvenience which would result from thus opening a door to fraud, than from adhering to the rule requiring other evidence of this fact. The old cases, in which the wit- ness himself was questioned as to his belief, have on this point been over- ruled. See Christian's note to 3 Bl. Comm. [369,] note (30). The law, therefore, is not reduced to any absurdity in this matter. It exercises no inquisitorial power ; neither does it resort to secondary or hearsay evidence. If the witness is objected to, it asks third persons to testify, whether he has declared his belief in God, and in a future state of rewards and punish- ments, &c. Of this fact they are as good witnesses as he could be ; and the testimony is primary and direct. It should further be noticed, that the question, whether a person, about to be sworn, is an atheist or not, can never be raised by any one but an adverse party. No stranger or a vol- unteer has a right to object. There must, in every instance, be a suit between two or more parties, one of whom offers the person in question, as a competent witness. The presumption of law, that every citizen is a be- liever in the common religion of the country, holds good until it is disproved ; and it would be contrary to all rule to allow any one, not party to the suit, to thrust in his objections to the course pursued by the litigants., This rule and uniform course of proceeding shows how much of the morbid sympathy expressed for the atheist is wasted. For there is nothing to prevent him from taking any oath of office ; nor from swearing to a complaint before a magistrate ; nor from making oath to his answer in chancery. In this last case, indeed, he could not be objected to, for another reason, namely, that the plaintiff, in his bill, requests the Court to require him to answer upon his oath. In all these, and many other similar cases, there is- no person authorized to raise an objection. Neither is the question permitted to be raised against the atheist, where he himself is the adverse party, and offers his own oath, in the ordinary course of proceeding. If he would make affi- davit, in his own cause, to the absence of a witness, or to hold to bail, or to the truth of a plea in abatement, or to the less of a paper, or to the genuine- 44* 522 LAW OF EVIDENCE. [PART III. own religion, or in such manner as they may deem binding on their own consciences. If the witness is not of the Chris- tian religion, the Court will inquire as to the form in which an oath is administered in his own country, or among those of his own faith, and wiU impose it in that form. And if, being a Christian, he has conscientious scruples against tak- ing an oath in the usual form, he will be allowed to make a solemn religious asseveration, involving a like appeal to God for the truth of his testimony, in any mode which he shall declare to be binding on his conscience.^ The Court, in ascertaining whether the form in which the oath is admin- istered, is binding on the conscience of the witness, may inquire of the witness himself ; and the proper time for making this inquiry is before he is sworn.^ But if the wit< ness ol' his books of account, or to his fears of bodily harm from one against whom he requests surety of the peace, or would take the poor debtor's oath ; in these and the like cases the uniform course is to receive his oath like any other person's. The law, in such cases, does not know that he is an atheist; that is, it never allows the objection of infidelity to be made against any man, seeking his own rights in a Court of Justice ; and it conclusively and abso- lutely presumes that, so far as religious belief is concerned, all persons are capable of an oath, of whom it requires one, as the condition of its protec- tion, or its aid ; probably deeming it a less evil, that the solemnity of an oath should, in few instances, be mocked by those who feel not its force and mean- ing, than that a citizen should, in any case, be deprived of the benefit and protection of the law, on the ground of his religious belief. The state of his faith is not inquired into, where his own rights are concerned. He is only prevented from being made the instrument of taking away those of others.'' 1 Law Reporter, pp. 347, 348. 1 Omichund v. Barker, 1 Atk. 21, 46 ; Willes, 538, 645-549, S. C; Kam- kissenscat v. Barker, 1 Atk. 19 ; Atcheson v. Everitt, Cowp. 389, 390; Bull. N. P. 292 ; 1 Phil. Evid. 9, 10, II ; 1 Stark. Evid. 22, 23 ; Kex v. Morgan, 1 Leach, Cr. Cas. 64; Vail v. Nickerson, 6 Mass. 262; Edmonds v. Kowe, Ky. & M. 77 ; Commonwealth v. Buzzell, 16 Pick. 153. "Quumque sit ad- severatio religiosa, satis patet jusjurandum attemperandum esse cujusque religioni." Heinec. ad Pand. pars 3, §§ 13, 15. " Quodcunque ntmen dede- ris, id utique constat, omne jusjurandum proficisci ex fide et persuasione jurantis ; et inutile esse, nisi quis credat Deum, quern testem advocat, per- jurii sui idoneum esse vendicem. Id autem credat, qui jurat per Deum suum, per sacra sua, et ex sua ipsius animi religione," &c. Bynkers. Obs. Jur. Rom. lib. 6, cap. 2. 2 By Stat. 1 & 2 Vict. c. 105,* an oath is binding, in whatever form, if ad- CHAP. II.] COMPETENCY OP WITNESSES. 623 ness, without making any objection, takes the oath in the usual form, he may be afterwards asked, whether he thinks the oath binding on his conscience ; but it is unnecessary and irrelevant to ask him, if he considers any other form of oath more binding, and therefore such question cannot be asked.^ If a witness, without objecting, is sworn in the usual mode, but being of a different faith, the oath was not in a form affecting his conscience, as if, being a Jew, he was sworn on the Gospels, he is still punishable for perjury, if he swears falsely.^ § 372. Under this general head of exclusion because of insensibility to the obligation of an oath, may be ranked the case of persons infamous; that is, persons who, whatever may be their professed belief, have been guilty of those heinous crimes which men generally are not found to com- mit, unless when so depraved as to be unworthy of credit for truth. The basis of the rule seems to be, that such a person is morally too corrupt to be trusted to testify; so reckless of the distinction between truth and falsehood, and insensible to the restraining force of an oath, as to render; it extremely impiobable that he will speak the truth at all.' Of such a person Chief Baron Gilbert remarks, that the crediti of his oath is overbalanced by the stain of his iniquity.^\ ministered in such form and witb such ceremonies as the person may declare binding. But the doctrine itself is conceived to be Common Law. 1 The Queen's case, 2 B. & B. 284. 2 Sells V. Hoare, 3 B. & B. 232 ; The State v. Whisonhurst, 2 Hawks, 458. But the adverse party cannot, for that cause, have a new trial. Whether he may, if a witness on the other side testified without having been sworn at all, queers. If the omission ?f the oath was known at thte time, it seems he cannot. Lawrence v. Houghton, 5 Johns. 129 ; White v. Hawn, Id. 351. But if it was not discovered until after the trial, he may. Hawks V. Baker, 6 Greenl. 72. [As to the mode of administering the oath to deaf and dumb persons, see supra, § 366.] 3 1 Gilb. Evid. by Lofft, p. 256. It was formerly thought, that an infa- mous punishment, for whatever crime, rendered the person incompetent as a witness, by reason of infamy. But this notion is exploded ; and it is now settled that it is the crime and not the punishment that renders the man 624 LAW OP EVIDENCE. [PAKT III. The party, however, must have been legally adjudged guilty of the crime. If he is stigmatized by public fame only, and not by the censure of law, it affects the credit of his testi- mony, but not his admissibility as a witness.^ The record, therefore, is required as the sole evidence of his guilt ; no other proof being admitted of the crirne ; not only because of the gross injustice of trying the guilt of a third person in a case to which he is not a party, but also, lest, in the multiplication of the issues to be tried, the principal case should be lost sight of, and the administration of justice should be frustrated.^ § 373. It is a point of no small difficulty to determine pre- cisely the crimes which render the perpetrator thus infamous. The rule is justly stated to require, that " the publicum judi- cium must be upon an offence, implying such a dereliction of moral principle, as carries with it a conclusion of a total dis- regard to the obligation of an oath." ^ But the difficulty lies in the specification of those offences. The usual and more general enumeration is, treason, felony, and the crimen falsi.* In regard to the two former, as all treasons, and almost all infamous; Bull. N. P. 292 ; Pendook r. Mackinder, Willes, R. 666. In Connecticut, the infamy of the witness goes now only to his credibility. Rev. Stat. 1849, tit. 1, § 141. So, in Michigan. Rev. Stat. 1846, ch. 102, § 99. And in Massachusetts. Stat. 1851, ch. 233, § 97 ; Stat. 1852, ch. 312, § 60. And in Iowa. Code of 1851, art. 2388. In Florida, a conviction of perjury is a perpetual obstacle to the competency of the party as a wit- ness, notwithstanding he may have been pardoned or punished. But con- victions for other crimes go onlj' to the credibility, except the crimes of murder, perjury, piracy, forgery, larceny, robbery, arson, sodomy, or bug- gery. Convictions for any crime in another State, go to the credibility only. Thompson's Dig. pp. 334, 335. 1 2 Dods. R. 186, per Sir Wra. Scott. 2 Rex V. Castel Careinion, 8 East, 77 ; Lee v. Gansell, Cowp. 3, per Lord Mansfield. 3 2 Dods. R. 186, per Sir Wm. Scott. 4 Phil. & Am. on Evid. p. 17 ; 6 Com. Dig. 353, Testmoigne, A.4, 5 ; Co. Lit. 6, b ; 2 Hale, P.- O. 277 ; 1 Stark. Evid. 94, 95. A conviction for petty larceny disqualifies, as well as for grand larceny. Pendock v. Mackinder, Willes, R. 665. CHAP. II.] COMPETENCY OP WITNESSES. 525 felonies were punishable with death, it was very natural that crimes, deemed of so grave a character as to render the offender unworthy to live, should be considered as rendering him unworthy of belief in a Court of Justice. But the extent and meaning of the term crimen falsi, in our law, is nowhere laid down with precision. In the Roman Law, from which we have borrowed the term, it included not only forgery, but every species of fraud and deceit.^ If the offence did not fall under any other head, it was called stellionatus^ which included " all kinds of cozenage and knavish practice in bargaining." But it is clear, that the Common Law has not employed the term in this extensive sense, when apply- 1 Cod. Lib. 9, tit. 22, ad legem Corneliam de falsis. Cujac. Opera, torn. ix. in locum. (Ed. Prati, A. D. 1839, 4to, p. 2191-2200;) 1 Brown's Civ. & Adm. Law, p. 525 ; Dig. lib. 48, tit. 10; Heinec. in Pand. pars vii. § 214- 218. The crimen falsi, as recognized in the Roman Law, might be commit- ted, 1. By words,' as in perjury; — 2. By writing, as in forgery; — 3. By ' act or deed ; namely, in counterfeiting or adulterating the public money, — in fraudulently substituting one child for another, or a supposititious birth, — or in fraudulently personating another, — in using false weights or meas- ures, — in selling or mortgaging the same thing to two several persons, in two several contracts, — and in officiously supporting the suit of another by money, &o., answering to the Common-Law crime of maintenance. Wood, Instit. Civil Law, pp. 282, 283; Halifax, Analysis Rom. Law^p. 134. The law of Normandy disposed of the whole subject in these words : " Notan- dum siquidem esty quod nemo in querela su§, pro teste recipiendus est ; nee ejus haaredes nee participes querelas. Et hoc intelligendum est tam ex parte actoris, quara ex parte defensoris. Omnes autem illi, qui perjurio vel IcBsione fdei sunt infames, ob hoc etiam sunt repellendi, et omnes illi, qui in bello succubuerunt." Jura Normaniae, cap. 62 ; [in Le Grand Coustu- mier, fol. ed. 1539.] In the ancient Danish Law it is thus defined, in the chapter entitled. Falsi crimen quodnam censetur. " Falsum est, si termi- uum, finesve quis moverit, monetam nisi venia vel mandato regio cusserit, argentum adulterinum conflaverit, nummisve reprobis dolo maio emat ven- datque, vel argento adulterino." Ancher, Lex Cimbrica, lib. 3, cap. 65, p. 249. 2 Dig. lib. 47, tit. 20, 1. 3, Cujac. (in locum,) Opera, torn. ix. (Ed. supra,) p. 2224. Stellionatus nomine significatur omne crimen, quod nomen pro- prium non habet, omnis fraus, quaa nomine proprio vaeat. — Translatum autem esse nomen stellionatus, nemo est qui nesciat, ab animali ad hominem vafrum, et decipiendi peritum. Id. Heinec. ad Pand. pars vii. §§ 147, 148 j 1 Brown's Civ. & Adm. Law, p. 426. 526 LAW OF EVIDENCE. [PART III. ing it to the disqualification of witnesses ; because convic- tions for many offences, clearly belonging to the cr.imen falsi of the civilians, have not this effect. Of this sort are deceits in the quality of provisions, deceits by false weights and measures, conspiracy to defraud by spreading false news,^ and several others. On the other hand, it has been ad- judged that persons are rendered infamtous, and therefore incompetent to testify, by having been convicted of forgery,^ perjury, subornation of perjury,^ suppression of testimony by bribery, or conspiracy to procure the absence of a wit- ness,* or other conspiracy, to accuse one of a crime,^ and barratry.^ And from these decisions, it may be deduced, that the crimen falsi of the Common Law not only involves the charge of falsehood, but also is one which may injuri- ously affect the administration of justice, by the introduc- tion of falsehood and fraud. At least it may be said, in the language of Sir WiUiam Scott,'^ " so far the law has ^ gone affirmatively ; and it is not for me to" say where it should stop, negatively." § 374. In regard to the extent and effect of the disability thus created, a distinction is to be observed between cases in which the person disqualified is a party, and those in 1 The Ville de Varsovie, 2 Dods. K. 174. But see Crowther v. Hop- wood, 3 Stark. E. 21. 2 Rex V. Davis, 5 Mod. 74. 3 Co. Lit. 6, b ; 6 Com. Dig. 353, Testm. A. 5. 4 Claneey's case, Fortesc. R. 208 ; Bushell v. Barrett, Ry. & M. 434. 5 2 Hale, P. C. 277; Hawk. P. C. b. 2, oh. 46, § 101 ; Co. Lit. 6, b; Rex V. Priddle, 2 Leach, Cr. Cas. 496 ; Crowther v. Hopwood, 3 Stark. R. 21, arg.; 1 Stark. Evid. 95; 2 Dods. R. 191. 6 Rex J). Ford, 2 Salk. 690; Bull. N. P. 292. The receiver of stolen goods is incompetent as a witness. See the Trial of Abner Rogers, pp. 136, 137 ; [Commonwealth v. Rogers, 7 Met. 500. A person convicted of maliciously obstructing the passing of cars on a railroad is not thereby an incompetent witness. Commonwealth v. Dame, 8 Gush. 384.] If a statute declare the perpetrator of a crime " infamous," this, it seems, will render him incompetent to testify. 1 Gilb. Evid. by Lofft, pp. 256, 257 ; Co. Lit. 6, b. 1 2 Dods. R. 191. See also 2 Russ. on Crimes, 592, 593. CHAP. II.] COMPETENCY OP WITNESSES. 527 which he is not. In cases between third persons, his testi- mony is ujiiversally excluded.^ But where he is a party, in order that he may not be wholly remediless, he may make any affidavit necessary to his exculpation or defence, or for relief against an irregular judgment, or the like ; ^ but it is said that his affidavit shall not be read to support a criminal charge.^ If he was one of the subscribing witnesses to a deed, will, or other instrument, before his conviction, his handwriting may be proved, as though he were dead.^ § 375. We have already remarked, that no person is deemed infamous in law, until he has been legally found guilty of an infamous crime. But the mere verdict of the Jury is not sufficient for this purpose ; for it may be set aside, or the judgment may be arrested, on motion for that pur- pose. It is the judgment, and that only, which is received as the legal and conclusive evidence of the party's guilt, for the purpose of rendering him incompetent to testify.^ And it must appear that the judgment was rendered by a Court of competent jurisdiction.^ Judgment of outlawry, for treason or felony, will have the same effect .; '^ for the party, in sub- mitting to an outlawry, virtually confesses his guilt ; and so the record is equivalent to a judgment upon confession. If the guilt of the party should be shown by oral evidence, and 1 Even where it is merely offered as an affidavit in showing cause against a rule calling upon the party to answer, it will be rejected. In re Sawyer, 2 Ad. & El. 721, N. S. 2 Davis and Carter's ease, 2 Salk. 461 ; .Bex v. Gardiner, 2 Burr. 1117 ; Atcheson u. Everitt, Cowp. 382 ; Skinner v. Porot, 1 Ashm. 57. 3 Walker v. Kearney, 2 Stra. 1148 ; Bex v. Gardiner, 2 Burr. 1117. * Jones V. Mason, 2 Stra. 833. 5 6 Com. Dig. 354, Teslm. A. 5; Bex t>. Castel Careinion, 8 East, 77; Lee V. Gansell, Cowp. S ; Bull. N. P. 292 ; Fitch v. Smalbrook, T. Kay. 32 ; The People v. Whipple, 9 Cowen, 707 ; The People v. Herrick, 13 Johns. 82 ; Cushman v. Luker, 2 Mass. 108 ; Castellano w. Peillon, 2 Martin, N. S. 466. 6 Cooke V. Maxwell, 2 Stark. R. 183. 7 Co. Lit. 6, b; Hawk. P. 0. b. 2, ch. 48, § 22 ; 3 Inst. 212 ; 6 Com. Dig. 354, Testm. A. 6 ; 1 Stark. Evid. 95, 96. In Scotland it is otherwise. Tait's Evid. p. 347. 528 LAW OF EVIDENCE. [PART III- even by his own admission, (though in neither of these modes can it be proved, if the evidence be objected to,) or, by his plea of guilty which has not been followed by a judg- ment,^ the proof does not go to the competency of the wit- ness, however it may affect his credibility.^ And the judg- ment itself, when offered against his admissibility, can be proved only by the record, or, in proper cases, by an authen- ticated copy, which the objector must offer and produce at the time when the witness is about to be sworn, or at farthest in the course of the trial.^ § 376. Whether judgment of an infamous crime, passed by a foreign tribunal, ought to' be allowed to affect the com- petency of the party as a witness, in the Courts of this country, is a question upon which Jurists are not entirely agreed. But the weight of modern opinions seems to be, that personal disqualifications, not arising from the law of nature, but from the positive law of the country, and espe- cially such as are of a penal nature, are strictly territorial, and cannot be enforced in any country other than that in which they originated.* Accordingly, it has been held, upon great consideration, that a conviction and sentence for a felony in one of the United States, did not render the party incompetent as a witness, in the Courts of another State ; though it might be shown in diminution of the credit due to his testimony.^ § 877. The disability thus arising from infamy may, in 1 Regina v. Hinoks, 1 Dennis. Cr. Cas. 84. 2 Rex V. Castel Careinion, 8 East, 77 ; Wicks v. Smalbrook, 1 Sid. 51 ; T. Ray. 32, S. C. ; The People v. Herrick, 13 Johns. 82. 3 Id. Hilts V. Colven, 14 Johns. 182; Commonwealth v. Green, 17 Mass. 537. In The State v. Ridgely, 2 Har. & McHen, 120, and Clark's Lessee v. Hall, Id. 378, which have been cited to the contrary, parol evidence was admitted to prove only the fact of the witness's having been transported as a convict ; not to prove the judgment of conviction. 4 Story on Confl. of Laws, §§ 91, 92, 104, 620-625; Marten's Law, of Nations, b. 3, ch. 3, §§ 24, 25. 5 Commonwealth v. Green, 17 Mass. 515, 539-549, per totam Curiam; CHAP. II.] COMPETENCY OF WITNESSES. 629 general, be removed in two modes : (1.) by reversal of the judgment ; and (2.) by a pardon. The reversal of the judg- ment must be shown in the same manner that the judgment itself must have been proved, namely, by production of the record of reversal, or, in proper cases, by a duly authenti- cated exemplification of it. The pardon must be proved, by production of the charter of pardon, under the great seal. And though it were granted after the prisoner had suffered the entire punishment awarded against him, yet it has been held sufficient to restore the competency of the witness, though he would, in such case, be entitled to very little credit.i § 378. The rule, that a pardon restores the competency and completely rehabilitates the party, is limited to cases where the disability is a consequence of the judgment, ac- cording to the principles of the Common Law.^ But where the disability is annexed to the conviction of a crime by the Contra, the State v. Candler, 3 Hawks, 393, per Taylor, C. J., and Hen- derson, .1. ; Hall, J., dubitante, but inclining in favor of admitting the wit- ness. In the cases of The State v. Ridgeley, 2 Har. & McHen. 120 ; Clark's Lessee v. Hall, Id. 378 ; and Cole's Lessee v. Cole, 1 Har. & Johns. 572 ; which are sometimes cited in the negative, this point was not raised nor con- sidered ; they being cases of persons sentenced in England for felony, and transported to Maryland, under the sentence, prior to the Revolution. 1 The United States v. Jones, 2 Wheeler's Cr. Gas. 451, per Thompson, J. By Stat. 9 Geo. 4, c. 32, § 3, enduring the punishment to which an of- fender has been sentenced for any felony not punishable with death, has the same effect as a pardoii under the great seal, for the same offence ; and of course it removes the disqualification to testify. And the same effect is given by § 4, of the same statute, to the endurance of the punishment awarded for any misdemeanor, except perjury and subornation of perjury. See also 1 W. 4, c. 37, to the same effect ; Tait on Evid. pp. 346, 347. But whether these enactments have proceeded on the ground, that the incompetency is in the nature of punishment, or, that the offender is reformed by the salutary discipline he has undergone, does not clearly appear. 2 If the pardon of one sentenced to the penitentiary for Hfe, contains a proviso, that nothing therein contained shall be construed, so as to relieve ' the party from the legal disabilities consequent upon his sentence, other than / the imprisonment, the proviso is void, and the party is fully rehabilitated.. The People v. Pease, 3 Johns. Gas. 333. VOL. I. . 45 530 LAW OF EVIDENCE. [PAKT III. express words of a statute, it is generally agreed that the pardon will not, in such a case, restore the competency of the offender; the prerogative of the sovereign being con- trolled by the authority of the express law. Thus, if a man be adjudged guilty on an indictment for perjury, at Common Law, a pardon will restore his competency. But if the in- dictment be founded on the statute of 5 Eliz. c. 9, which declares, that no person, convicted and attainted of perjury, or subornation of perjury, shall be from thereforth received as a witness in any court of record, he will not be rendered competent by a pardon.^ 1 Rex V. Ford. 2 Salk. 689 ; Dover v. Maestaer, 5 Esp. 92, 94 ; 2 Russ. on Crimes, 595, 596; Rex v. Greepe, 2 Salk. 513, 514; Bull. N. P. 292; Phil. & Am. on Evid. 21, 22. See also Mr. Hargrave's Juridical Arguments, Vol. 2, p. 221 etseq., where this topic is treated with great ability. Whether the disability is, or is not, made a part of the judgment, and entered as such on the record, does not seem to be of any importance. The form in which this distinction is taken in the earlier cases, evidently shows that its force was understood to consist in this, that in the former case the disability was declared by the statute, and in the latter, that it stood at Common Law. " Although the incapacity to testify, especially considered as a mark of in- famy, may really operate as a severe punishment upon the party ; yet there are other considerations affecting other persons, which may well warrant his I exclusion from the halls of justice. It is not consistent with the interests of j others, nor with the protection which is due to them from the State, that I they should be exposed to the peril of testimony from persons regardless of the obligation of an oath ; and hence, on grounds of public policy, the legis- lature may well require, that while the judgment itself remains unreversed, / the party convicted shall not be heard as a witness. It may be more safe to I exclude in all cases, than to admit in all, or attempt to distinguish by investi- gating the grounds on which the pardon may have been granted. And it is without doubt as clearly within the power of the legislature, to modify the law of evidence, by declaring what manner of persons shall be competent to testify, as by enacting, as in the statute of frauds, that no person shall be heard viva voce in proof of a certain class of contracts. The statute of Elizabeth itself seems to place the exception on the ground of a rule of evidence, and not on that of a penal fulmination against the offender. The intent of the legislature appears to have been not so much to punish the party, by depriving him of the privilege of being a witness or a juror, as to prohibit the Courts from receiving the oath of any perfon convicted of dis- regarding its obligation. And whether this consequence of the conviction be entered on the record or not, the effect is the same. The judgment under CHAP. II.] COMPETENCY OF WITNESSES. 531 § 379. The case of accomplices is usually mentioned under the head of Infamy ; but we propose to treat it more appro- priately, when we come to speak of persons disqualified by interest, since accomplices generally testify under a promise or expectation of pardon, or some other benefit. But it may here be observed, that it is a settled rule of evidence, that a particeps criminis, notwithstanding the turpitude of his con- duct, is not, on that account, an incompetent witness, so long as he remains not convicted and sentenced for an infa- mous crime. The admission of accomplices, as witnesses for the government, is justified by the necessity of the case, it being often impossible to bring the principal offenders to justice without them. The usual course is, to leave out of the indictment those who are to be called as witnesses ; but it makes no difference as to the admissibility of an accom- the statute being properly shown to the Judges of a Court of Justice, their duty is declared in the statute, independent of the insertion of the inhibition as part of the sentence, and unaffected by any subsequent pardon. The legislature, in the exercise of its pow^r to punish crime, awards fine, impris- onment, and the pillory against the offender ; in the discharge of its duty to preserve the temple of justice from pollution, it repels from its portal the man who feareth not an oath. Thus it appears, that a man convicted of perjury cannot be sworn in a Court of Justice, while the judgment remains unreversed, though his offence may have been pardoned after the judg- ment ; but the reason is found in the express direction of the statutes to the Courts, and not in the circumstances of the disability being made a part of the judgment. The pardon exerts its full vigor on the offender ; but is not allowed to operate beyond this, upon the rule of evidence enacted by the statute. The punishment of the crime belongs to the criminal code ; the rule of evidence to the civil." See Amer. Jur. Vol. 11, pp. 360, 361, 362. In several of the United States, the disqualification is expressly declared by statutes, and is extended'to all the crimes therein enumerated ; comprehend- ing not only all the varieties of the crimen falsi, as understood in the Com- mon Law, but divers other offences. In some of the States, it is expressly enacted, that the pardon of one convicted of perjury shall not restore his convpetency as a witness. See Virginia, Rev. Stat. 1849, ch. 199, § 19 ; Florida, Thompson's Dig. p. 334 ; Oeorgia, Hotchkiss's Dig. p. 730. But in Ohio, competency is restored by pardon. Rev. Stat. 1841, chap. 35, § 41. In Georgia, convicts in the penitentiary are competent to prove an escape, or a mutiny. Hotchk. Dig. supra. And see New Jersey, Rev. Stat. 1846, tit. 8, ch. 1, § 23 ; Id. tit. 34, ch. 9, § 1. 532 LAW OF ETIDENCE. [PART III. plice, whether he is indicted or not, if he has not been put on his trial at the same time with his companions in crime.^ He is also a competent witness in their favor ; and if he is put on his trial at the same time with them, and there is only very shght evidence, if any at all, against him, the Court may, as we have already seen,** and generally will forthwith direct a separate verdict as to him, and, upon his acquittal, will admit him as a witness for the others. If he is convicted, and the punishment is by fine only, he will be admitted for the others, if he has paid the fine.^ But whether an accomplice already charged with the crime, by indictment, shall be admitted as a witness for the government, or not, is determined by the Judges, in their discretion, as may best serve the purpose of justice. If he appears to have been the principal offender, he will be rejected.* And if an accom- plice, having made a private confession, upon a promise of pardon made by the attorney-general, should afterwards re- fuse to testify, he may be convicted upon the evidence of that confession.^ § 380. The degree of credit which ought to be given to the testimony of an accomplice, is a matter exclusively within the province of the Jury. It has sometimes been said, that they ought not to believe him, unless his testimony is corrob- orated by other evidence ; and, without doubt, great caution 1 See Jones v. Georgia, 1 Kelly, 610. 3 Supra, § 362. 3 2 Rus3. on Crimes, 597, 600; Rex v. Westbeer, 1 Leach, Cr. Cas. 14; CLarnock's case, 4 St. Tr. 582, (ed. 1730;) 12 Howell's St. Tr. 1454, S. C; Kex w.' Fletcher, 1 Stra. 633. The rule of the Roman Law, Nemo, allegans turpitudinem suam, est audiendus, though formerly applied to witnesses, is now to that extent exploded. It can only be applied, at this day, to the case of a party seeking relief. See infra, § 383, note. See also 2 Stark. Evid. 9, 10 ; 2 Hale, P. C. 280 ; 7 T. R. 611 ; Musson v. Fales, 16 Mass. 335 ; Churchill u. Suter, 2 Mass. 162; Townsend i>. Bush, 1 Conn. 267, per Trumbull, J. 4 The People v. Whipple, 9 Cowen, 707; Supra, § 363. 5 Commonwealth v. Knapp, 10 Pick. 477 ; Rex «. Burley, 2 Stark. Evid. 12, note (r.) CHAP. II.] COMPETENCY OF WITNESSES. 533 in weighing such testimony is dictated by prudence and good reason. But there is no such rule of law ; it being ex- pressly conceded that the Jury may, if they please, act upon the evidence of the accomplice, without any confirmation of his statement.^ But, on the other hand, Judges, in their dis- cretion, will advise a Jury not to convict of felony upon the testimony of an accomplice alone, and without corrobora- tion ; and it is now so generally the practice to give them such advice, that its omission would be regarded as an omis- sion of duty on the part of the Judge.^ And, considering the respect always paid by the Jury to this advice from the bench, it may be regarded as the settled course of practice, not to convict a prisoner in any case of felony, upon the sole and uncorroborated testimony of an accomplice. The Judges do not, in such cases, withdraw the cause from the Jury by positive directions to acquit, but only advise them not to give credit to the testimony. § 381. But though it is thus the settled practice, in cases of felony, to require other evidence in corroboration of that of an accomplice ; yet, in regard to the manner and extent of the corroboration to be required, learned Judges are not per- fectly agreed. Some have deemed it sufficient, if the witness is confirmed in any material part of the case ; ^ others have 1 Rex V. Hastings, 7 C. & P. 152, per Ld. Denman, C. J. ; Rex v. Jones, 2 Campb. 132, per Ld. EUenborough ; 31 Howell's St. Tr. 315, S. C. ; Eex V. Atwood, 2 Leach, Cr. Cas. 521 ; Rex v. Durham, Id. 528 ; Rex w. Daw- ber, 3 Stark. R. 34; Rex v. Barnard, 1 C. & P. 87, 88; The People u. Costello, 1 Denio, (N. Y.) R. 83. 2 Rosooe's Crim. Evid. p. 120 ; 2 Stark. Evid. 12 ; Rex v. Barnard, 1 C. & P. 87. For the limitation of this practice to cases of felony, see Rex v. Jones, 31 Plowell's St. Tr. 315, per Gibbs, Attor.-Gen., arg. See also Rex V. Hargrave, 5 C. & P. 170, where persons present at a fight, which re- sulted in manslaughter, thougii principals in the second degree, were held not to be such accomplices as required corroboration, when testifying as witnesses. 3 This is the rule in Massachusetts, where the law was stated by Morton, J., as follows : " 1. It is competent for a Jury to convict on the testimony oi an accomplice alone. The principle which allows the evidence to go to the 45* 534 LAW OF EVIDENCE. [PART III. required confirmatory evidence as to the corpus delicti only; and others have thought it essential, that there should be corroborating proof that the prisoner actually participated in the offence ; and that, when several prisoners are to be tried, confirmation is to be required as to all of them, before all can be safely convicted ; the confirmation of the witness, as Jury, necessai'ily involves in it a power in them to believe it. The defend- ant has a right to have the Jury decide upon the evidence which may be offered against him ; and their duty will require of them to return a verdict of guilty or not guilty, according to the conviction which that evidence shall produce in their minds. 2 Hawk. P. C. ch. 46, § 135 ; 1 Hale, P. C. 304, 305 ; Roscoe's Grim. Ev. 119 ; 1 Phil.'Ev. 32 ; 2 Stark. Ev. 18, 20. 2. But the source of this evidence is so corrupt, that it is always looked upon with suspicion and jealousy, and is deemed unsafe to rely upon without confirma- tion. Hence the Court ever consider it their duty to advise a Jury to ac- quit, where there is no evidence other than the uncorroborated testimony of an accomplice. 1 Phil. Evid. 34 ; 2 Stark. Ev. 24 ; Rex v. Durham, 2 Leach, 528 ; Rex v. Jones, 2 Campb. 132 ; 1 Wheeler's Grim. Gas. 418 ; 2 Rogers's Recorder, 38 ; 5 Ibid. 95. 3. The mode of corroboration seems to be less certain. It is perfectly clear, that it need not extend to the whole testimony ; but it being shown that the accomplice has testified truly in some particulars, the Jury may infer that he has in others. But what amounts to corrobora- tion ? We think the rule is, that the corroborative evidence must relate to some portion of the testimony which is material to the issue. To prove that an accomplice had told the truth in relation to irrelevant and immaterial matters, which were known to everybody, would have no tendency to con- firm his testimony, involving the guilt of the party on trial. If this were the case, every witness, not incompetent for the want of understanding, could always furnish materials for the corroboration of his own testimony. If he could state where he was born, where he had resided, in whose cus- tody he had been, or in what jail, or what room in the jail he had been con- fined, he might easily get confirmation of all these particulars. But these circumstances having no necessary connection with the guilt of the defend- ant, the proof of the correctness of the statement in relation to them, would hot conduce to prove that a statement of the guilt of the defendant was true. Roscoe's Grim. Evid. 120 ; Rex v. Addis, 6 Gar. & Payne, 388." See Gom- monwealth v. Bosworth, 22 Pick. 397, 399, 400; The People v. Gostello, 1 Denio, 83. A similar view of the nature of corroborative evidence, in cases where such evidence is necessary, was taken by Dr. Lushington, who held that it meant evidence, not merely showing that the account given is prob- able, but proving facts ejusdem generis, and tending to produce the same result. Simmons v. Simmons, 11 Jur. 830. And see Maddock v. Sullivan, 2 Rich. Eq. R. 4. CHAP, ir.] COMPETENCY OF WITNESSES. 535 to the commission of the crime, being regarded as no con- firmation at all, as it respects the prisoner. For, in describ- ing the circumstances of the offence, he may have no induce- ment to speak falsely, but may have every motive to declare the truth, if he intends to be believed, when he afterwards fixes the crime upon the prisoner.^ If two or more accom- plices are produced as witnesses, they are not deemed to corroborate each, other; but the same rule is applied, and the same confirmation is required, as if there were but one.^ § 382. There is one class of persons apparently accomplices, to whom the rule, requiring corroborating evidence, does not apply ; namely, persons who have entered into communica- tion with conspirators, but either afterwards repenting, or having originally determined to frustrate the enterprise, have 1 Rex V. Wilkes, 7 C: & P. 272, per Alderson, B. ; Kex v. Moore, Id. 270 ; Rex v. Addis, 6 C. & P. 388, per Patteson, J. ; Rex v. Wells, 1 Mood. & M. 326, per Littledale, J. ; Rex v. Webb, 6 C. & P. 595 ; Regina v. Dyke, 8 C. & P. 261 ; Regina v. Birkett, 8 C. & P. 732; Commonwealth v. Bos- worth, 22 Pick. 399, per Morton, J. The course of opinions and practice on this subject is stated more at large in 1 Phil. Evid. p. 30-38 ; 2 Russ. on Crimes, p. 956-968, and in 2 Stark. Evid. p. 12, note (x), to which the learned reader is referred. See also Roscoe's Crim. Evid. p. 1 20. Chief Baron Joy, after an elaborate examination of English authorities, states the true rule to be this, that — "the confirmation ought to be in such and so many parts of the accomplice's narrative, as may reasonably satisfy the Jury that he is telling truth, without restricting the confirmation to any particu- lar points, and leaving the effect of such confirmation (which may vary in its effect according to the nature and circumstances of the particular case), to the consideration of the Jury, aided in that consideration by the obser- vations of the Judge." See Joy on the Evidence of Accomplices, pp. 98, 99. By the Scotch Law, the evidence of a single witness is in no case sufficient to warrant a conviction, unless supported by a train of circumstances. Ali- son's Practice, p. 551. In Iowa, it is required by statute, that the corrobo- ration be such as shall tend to connect the defendant with the commission of the offence ; and not merely to show the commission of the crime, or its circumstances. Code of 1851, art. 2998. 2 Rex V. Noakes, 3 C. & P. 326, per Littledale, J. ; Regina v. Bannen, 2 Mood. Cr. Cas. 309. The testimony of the wife of an accomplice, is not / considered as corroborative of her husband. Rex v. Neale, 7 C. & P. 168, ) per Park, J. 536 LAW OF EVIDENCE. [PART III. subsequently disclosed the conspiracy to the public author- ities, under whose direction they continue to act with their guilty confederates, until the matter can be so far advanced and matured, so as to insure their conviction and punish- ment. The early disclosure is considered as binding the party to his duty ; and though a great degree of objection or disfavor may attach to him for the part he has acted as an informer, or on other accounts, yet his case is not treated as the case of an accomplice.^ § 383. Whether a party to a negotiable instrument.^ who has given it credit and currency by his signature, shall after- wards be admitted as a witness, in a suit between other persons, to prove the instrument originally void, is a ques- tion upon which Judges have been much divided in opinion. The leading case against the admissibility of the witness is that of Walton v. Shelley^ in which the indorser of a promis- sory note was called to prove it void for usury in its original concoction. The security was in the hands of an innocent holder. Lord Mansfield, and the other learned Judges held that upon general grounds of public policy, the witness was inadmissible ; it being " of consequence to mankind, that no person should hang out false colors to deceive them, by first affixing his signature to a paper, and then afterwards giving testimony to invalidate it." And, in corroboration of this opinion, they referred to the spirit of that maxim of the Roman Law, — Nemo, allegans suam twrpitudinem,est audiendus.^ 1 Kex V. Despard, 12 Howell's St. Tr. 489, per Lord EUenborough. [One who purchases intoxicating liquor sold contrary to law, for the express pur- pose of prosecuting the seller for an unlawful sale, is not an accomplice. Commonwealth v. Downing, 4 Gray, 29.] 2 1 T. R. 296. 3 This maxim, though it is said not to be expressed, in terms, in the text of the Corpus Juris, (see Gilmer's Rep. p. 275, note,) is exceedingly familiar among the civilians ; and is found in their commentaries on various laws in the Code. See Corpus Juris Glossatum, tom. iv. col. 461, 1799; Corp: Juris Gothofredi, (fol. ed.) Cod. lib. 7, tit. 8, 1. 5, in margine ; Codex Justin- iani, (4to, Parisiis, 1550,) lib. 7, tit. 16, 1. 1 ; Id. tit. 8, 1. 5, in margine ; CHAP. 11.] COMPETENCY OF WITNESSES. 537 § 384. The doctrine of this case afterwards came under discussion, in the equally celebrated case of Jordaine v. Lash- brooke} This was an action by the indorsee of a bill of exchange against the acceptor. The bill bore date at Ham- burg; and the defence was, that it was drawn in London, and so was void at its creation, for want of a stamp ; the statute® having declared, that unstamped bills should neither be pleaded, given in evidence, or allowed to be available, in law or equity. The indorser was offered by the defendant as a witness, to prove this fact, and the Court held that he was admissible. This case might, perhaps, have formed an exception to the general rule adopted in Walton v. Shelley, on the ground, that the general policy of the law of com- merce ought to yield to the public necessity in matters of revenue ; and this necessity was relied upon by two of the three learned Judges who concurred in the decision. But they also concurred, with Lord Kenyon, in reviewing and overruling the doctrine of that case. The rule, therefore, now received in England is, that the party to any instru- ment, whether negotiable or not, is a competent witness to prove any fact, to which any other witness would be compe- tent to testify ; provided he is not shown to be legally infa- mous, and is not directly interested in the event of the suit. The objection, that thereby he asserts that to be false which he has solemnly attested or held out to the world as true, goes only to his credibility with the Jury.^ 1 Blascard. De Prob. Concl. 78, n. 42. And see 4 Inst. 279. It seems for- merly to have been deemed sufficient to exclude witnesses, testifying to their own turpitude ; but the objection is now held to go only to the credibility of the testimony. 2 Stark. Evid. 9,. 10; 2 Hale, P. C. 280; 7 T. R. 609, per Grose, J.; Id. 611, per Lawrence, J. Thus, a witness is competent to tes- tify that his former oath was corruptly false. Rex v. Teal, 1 1 East, 309 ; Rands v. Thomas, 5 M. & S. 244. 1 7 T. R. 599. 2 31 Geo. 3, c. 25, §§ 2, 16. This act was passed subsequent to the de- cision of Walton V. Shelley, 1 T. R. 296. 3 1 Phil. Evid. 39, 40. On this ground, parties to other instruments, as well as subscribing witnesses, if not under some other disability, are, both in England and in the United States, held admissible witnesses to impeach the 538 LAW OF EVIDENCE. [PAET III. § 385. The Courts of some of the American States have adopted the later English rule, and admitted the indorser, or other party to an instrument, as a competent witness to im- peach it, in all cases where he is not on other grounds dis- qualified. In other States decisions are found, which go to the exclusion of the party to an instrument in every case, when oifered as a witness to defeat it, in the hands of a third person ; thus importing into the Law of Evidence the maxim of the Roman Law in its broadest extent. In other States, the Courts, referring the rule of exclusion to the ground of public convenience, have restricted its application to the case of a negotiable security, actually negotiated and put into circulation before its maturity, and still in the hands of an innocent indorsee, without notice of the alleged origi- nal infirmity, or any other defect in the contract. And in ' this case, the weight of American authority may now be ■considered as against the admissibility of the witness to /impeach the original validity of the security ; although the ; contrary is still holden in some Courts, whose decisions, in general, are received with the highest respect.^ original validity of such instruments. 7 T. R. 611, per Lawrence, J. ; Hew- ard V. Shipley, 4 East, 180 ; Lowe v. Joliffe, 1 W. Bl. 365 ; Austin v. Willes, Bull. N. P. 264 ; Howard o. Braithwaite, 1 Ves. & B. 202, 208 ; Title v. Grevett, 2 Ld. Baym. 1008 ; Dickinson v. Dickinson, 9 Met. 471 ; Twambly V. Henley, 4 Mass. 441. It has, however, been held in iotiisiana, that a notary cannot be examined as a witness, to contradict a statement made by him in a protest;, and that the principle extends to every public officer, in regard to a certificate given by liim in his official character. Peet v. Dough- erty, 7 Rob. 85. 1 The rule, that the indorser of a negotiable security, negotiated bfefore it j was due, is not admissible as a witness to prove it originally void, when in Hhe hands of an innocent indorsee, is sustained by the Supreme Court of the United States, in The Bank of the United States v. Dunn, 6 Peters, 61, 57, explained and confirmed in The Bank of the Metropolis v. Jones, 8 Peters, 12, and in the United States u. Leffler, 11 Peters, 86, 94, 95 ; Scott v. Lloyd, 12 Peters, 149; Henderson v. Anderson, 3 Howard, S. C. Rep. 73; [Saltmarsh v. Tuthill, 13 How. U. S. 229 ;] Taylor v. Luther, 2 Sumner, 235, per Story, Ji It was also adopted in Massachusetts ; Churchill v. Suter, 4 Mass. 156; Fox v. Whitney, 16 Mass. 118; Packard v. Richardson, 17 Mass. 122. See also the case of Thayer v. Grossman, 1 Metcalf, R. 416, CHAP. II,j COMPETENCY OF WITNESSES. 539 § 386. Another class of persons incompetent to testify in a cause, consists of those who are interested in its result,^ in which the decisions are reviewed, and the rule clearly stated and vindi- cated, by Shaw, C. J. And m New Hampshire ; Bryant v. Rittersbush, 2 N. Hamp. 212 ; Haddock v. Wilmarth, 5 JSf. Hamp. 187. And in Maine; Deering v. Sawfel, 4 Greenl. 191; Chandler v. Morton, 4 Greenl. 374. And in Pennsylvania; O'Brien v. Davis, 6 Watts, 498; Harrisburg Bank V. Forster, 8 Watts, 304, 309 ; Davenport v. Freeman, 3 Watts & Serg. 557 ; [Harding v. Mott, 20 Penn. 469 ; Pennypaeker v. Umberger, 22 lb. 492.] In Louisiana, the rule was stated and conceded by Porter, J., in Shamburg V. Commagere, 10 Martin, 18; and was again stated, but an opinion with- held, by Martin, J., in Cox v. WilHams, 5 Martin, 139, N. S. In Vermont, the case of Jordaine v. Lashbrooke was followed, in Nichols v. Holgate, 2 Aik. 1 38 ; but the decision is said to have been subsequently disapproved by all the Judges, in Chandler c. Mason, 2 Verm. 198, and the rule in Walton V. Shelley approved. [In a later case, the question oamo directly before the Court, and the decision in Nichols v. Holgate was confirmed. Pecker v. Sawyer, 24 Verm. 459.] In Ohio, the indorser was admitted to prove facts subsequent to the indorsement ; the Court expressing no opinion upon the general rule, though it was relied upon by the opposing counsel. Stoue 0. Vance, 6 Ohio Rep. 246. But subsequently the rule seems to have been admitted. Rohrer v. Morningstar, 18 Ohio, 579. In Mississippi, the witness was admitted for the same purpose ; and the rule in Walton v. Shelley was approved. Drake v. Henley, Walker, R. 541. In Illinois, the indorser has been admitted, where, in taking the note, he acted as the agent of the indorsee, to whom he immediately transferred it, without any notice 1 In Connecticut, persons interested in the cause are now, by statute, made competent witnesses ; the objection of interest going only to their cred- ibility. Rev. Stat. 1849, tit. 1, § 141. In Ijfew York, persons interested are admissible, except those for whose immediate benefit the suit is prosecuted or defended, and the assignor of a thing in action, assigned for the purpose of making him a witness. Rev. Stat. Vol. 3, p. 769, 3d ed. In Ohio, the law is substanlially the same. Stat. March 23, 1850, § 3. In Michigan, all such persons are admissible, except parties to the record, and persons for whose immediate benefit the suit is prosecuted or defended; and their hus- bands and wives. Rev. Stat. 1846, ch. 102, § 99. In Virginia, persons interested are admissible in criminal cases, when not jointly tried with the defendant. Rev. Stat. 1849, ch. 199, § 21. In Massachusetts, the objection of interest no longer goes to the competency of any witnesses, except wit- nesses to wills. Stat. 1851, ch. 233, § 97. See supra, §§ 327, 329, notes. [The admission by statute, of parties as witnesses, of course removes the ob- jection of interest. In some States, where parties are not pei mitted to testify, the objection of interest is removed by statute. Supra, §§ 327, 329, notes.] 540 LAW OF EVIDENCE. [PART III. The principle on which these are rejected, is the same with that which excludes the parties themselves, and which has of the rule. Webster v. Vickers, 2 Scam. 295. But the rule of exclu- sion has been rejected, and the general doctrine of Jordaine v. Lashbrooke followed in New York; Stafford v. Rice, 5 Cowen, 23; Bank of Utica v. Hilliard, Id. 153 ; Williams v. Walbridge, 3 Wend. 415. And in Virginia; Taylor o. Beck,*3 Randolph, R. 316. And in Connecticut; Townsend ti. Bush, 1 Conn. 260. And in Soulh Carolina; Knight w. Packard, 3 McCord, 71. [And in Texas; Parsons v. Phipps, 4 Tex. 341.] And in Tennessee; Stump !>. Napier, 2 Terger, 35. In Maryland, it was rejected by three Judges against two, in Ringgold v. Tyson, 3 H. & J. 172. It was also rejected in New Jersey, m Freeman v. Brittin, 2 Harrison, 192. And in North Carolina; Gay v. Hall, 3 Murphy, 151. And in Georgia ; SAniCk. v. Moss, Dudley, 161. And in Alabama; Todd «. Stafford, 1 Stew. 199; Griffing tJ. Harris, 9 Porter, 226. In Kentucky, in the case of Gorham v. Carroll, 3 Littell, 221, where the indorser was admitted as a witness, it is to be observed, that the note was indorsed without recourse to him, and there- by marked with suspicion ; and that the general rule was not considered. More recently in New Hampshire, the doctrine of Walton v. Shelley has been denied, and the rule of the Roman Law "has been admitted only as a rule of estoppel upon the parties to the transaction and in regard to their rights, and not as a rule of evidence, affecting the competency of witnesses ; and therefore the maker of a note, being released by his surety, ,was held competent in an action by an indorsee against the surety, to testify to an alteration of the note, made by himself and the payee, which rendered it void as to the surety. Haines v. Dennett, 11 N. Hamp. 180. See further, 2 Stark. Evid. 179, note (A) ; Bayley on Bills, p. 586, note (b.) (Phillips and Sewall's ed.) ; [Chitty on Bills, (12th Am. ed. by Perkins,) p. 747 et seq. (*p. 669 et seq.)j But all these decisions against the rule in Walton V. Shelley, except that in New Jersey and the last cited case in New Hamp- shire, were made long before that rule was recognized and adopted by the Supreme Court of the United States. The rule itself is restricted to eases where the witness is called to prove that the security was actually void at the time when he gave it currency as good ; and this in the ordinary course of business, and without any mark or intimation to put the receiver of it on his guard. Hence the indorser is a competent witness, if he indorsed the note " without recourse " to himself; Abbott v. Mitcli^ell, 6 Shepl. 355 ; or, is called to prove a fact not going to the original infirmity of the security ; Buck V. Appleton, 2 Shepl. 284 ; Wendell v. George, R. M. Charlton's Rep. 51 ; or, if the instrument was negotiated out of the usual course of business; Parke v. Smith, 4 Watts & Serg. 287. So, the indorser of an accommodation note, made for his benefit, being released by the maker, is admissible as a witness for the latter, to prove that it has subsequently been paid. Green- ough V. West, 8 N. Hamp. 400. And see Kinsley v. Robinson, 21 Pick. 327. CHAP. II.] COMPETENCY OF WITNESSES. 541 already been considered ;^ namely, the danger of perjury, and the little credit generally found to be due to such testimony, in judicial investigations. This disqualifying interest, how- ever, must be some legal, certain, and immediate interest, however minute, either in the event of the cause itself, or in the record, as an instrument of evidence, in support of his own claims, in a subsequent action.^ It must be a legal interest, as distinguished from the prejudice or bias resulting from friendship or hatred, or from consanguinity, or any other domestic or social or any official relation, or any other motives by which men are generally influenced ; for these go only to the credibility. Thus, a servant is a competent wit- ness for his master, a child for his parent, a poor dependent for his patron, an accomplice for the government, and the like. Even a wife has been held admissible against a pris- oner, though she believed that his conviction would save her husband's life.^ The rule of the Roman Law, — Idonei non videntttr esse testes, quibus imperari potest ut testes fient,* — has never been recognized in the Common Law, as affecting the compete"ncy ; but it prevails in those countries in whose jurisprudence the authority of the Roman Law is recognized. Neither does the Common Law regard as of binding force the rule that excludes an advocate from testifying in the cai^fefor his client; — Mcmdatis cavetur, ut Prmsides attend- ant, lie patroni, in causa cut patrocinium prcestiterunt, testimo- nium dicant.^ But on grounds of public policy, and for the 1 Supra, §§ 326, 327, 329. And see the observations, of Best, C. J., in Hovill V. Stephenson, 5 Bing. 493. 2 1 Starlt, Evid. 102.; Bent v. Baker, 3 T. R. 27 ; Doe v. Tyler, 6 Bing. 390, per Tindal, C. J. ; Smith v. Prager, 7 T. R. 62 ; Wilcox v. Farrell, 1 H. Lords' Cas. 93; Bailey v. Lumpkin, 1 Kelly, 392. 3 Rex V. Rudd, 1 Leach, Cr. Cas. 135, 151. In weighing the testimony of witnesses naturally biased, the rule is to give credit to their statements of facts, and to view their deductions from facts with suspicion. Dillon v. Dillon, 3 Curt. 96. * Dig. lib. 22, tit. 5, 1. 6 ; Poth. Obi. [793.] In Lower Canada, the incom- petency of the relations and connections of the parties, in civil cases, beyond the degree of cousins-german, is removed by Stat. 41 Geo. 3, c. 8. See Rev. Code, 1845, p. 144. 5 Dig. lib. 22, tit. 5, 1. 25; Poth. Obi. [793.] voi,. I. 46 542 LAW OP EVIDENCE. [PAKT III. purer administration of justice, the relation of lawyer and client is so far regarded by the rules of practice in some Courts, as that the lawyer is not permitted to be both advo- cate and witness for his client in the same cause.'^ § 387. The interest, too, must be real, and not merely apprehended by the party. For it would be exceedingly dangerous to violate a general rule, because in a particular case, an individual does not understand the nature or extent of his rights and liabilities. If he believes and states that he has no interest, the very statement of the objection to his competency may inform him that he has ; and on the other hand, if he erroneously thinks and declares that he is inter- ested, he may learn, by the decision of the Court, that he is not. Indeed, there would be danger in resting the rule on the judgment of a witness, and not on the fact itself ; for the apprehended existence of the interest might lead his judg- ment to a wrong conclusion. And moreover, the inquiry which would be necessary into the grounds and degree of the witness's belief, would always be complicated, vague, and indefinite, and productive of much inconvenience. For these reasons, the more simple and practicable rule has been adopted of determining the admissibility of the witness by the actual existence, or not, of any disqualifying interest in the matter.^ 1 Stones V. Byron, 4 Dowl. & Lowndes, 393 ; Dunn v. Packwood, 11 Jur. 242 ; Reg. Gen. Sup. Court, N. Hamp. Reg. 23, 6 N. Hamp. R. 580 ; Mish- ler V. Baumgardner, 1 Amer. Law Jour. 304, N. S. But see contra. Little V. Keon, 1 N. Y. Code Rep. 4 ; 1 Sandf. 607 ; Potter v. Ware, 1 Cush. 518, 524, and cases cited by Metcalf, J. 2 1 Phil. Evid. 127, 128; 1 Stark. Evid. 102; Gresley on Evid. p. 253; Tait on Evid. p. 351. In America and in England, there are some early but very respectable authorities to the point, that a witness believing himself interested, is to be rejected as incompetent. See Fotheringham v. Green- wood, 1 Stra. 129; Trelawny u. Thomas, 1 H. BI. 307, per Ld. Loughbo- rough, C. J., and Gould, J. ; L'Amitie, 6 Rob. Adm. 269, note (a) ; Plumb V. Whiting, 4 Mass. 518; Richardson v. Hunt, 2 Munf. 148; Freeman ». Lucket, 2 J. J. Marsh. 390. But the weight of modern authority is clearly the other way. See Commercial Bank of Albany v. Hughes, 1 7 Wend. 94, CHAP. II.] COMPETENCY OF WITNESSES. 543 § 388. If the witness believes himself to be under an hono- rary obligation, respecting the matter in controversy, in favor of the party calling him, he is nevertheless a competent wit- ness, for the reasons already given ; and his credibility is left with the Jury.^ ^ § 389. The disqualifying interest of the witness must be in the event of the cause itself, and not in the question to be decided. His liability to a like action, or his standing in the same predicament with the party, if the verdict cannot be given in evidence for or against him, is an interest in the question only, and does not exclude him.^ Thus, one under- writer may be a witness for another underwriter upon the same policy ; ^ or, one seaman for another, whose claim for wages is resisted, on grounds equally affecting all the crew ; ^ or, one freeholder for another, claiming land under the same title, or by the same lines and corners ; ^ or, one devisee for another, claiming under the same will ; ^ or, one trespasser for his co-trespasser ;'' or, a creditor for his debtor ; ^ or a ten- ant by the curtesy, or tenant in dower, for the heir at law, in 101, 102; Stall B. The Catskill Bank, 18 Wend. 466, 475, 476; Smith w. Downs, 6 Conn. 371 ; Long v. Bailie, 4 S. & K. 222 ; Dellone v. Rechmer, 4 Watts, 9 ; Stimmel v. Underwood, 3 G. & J. 282 ; Havis v. Barkley, 1 Harper's Law Rep. 63. And see infra, § 423, n. 1 Peterson x\ Stoffles, 1 Campb. 144 ; Solorete v. Melville, 1 Man. & Ryl. 198; Gilpin v. Vincent, 9 Johns. 219; Moore v. Hitchcock, 4 Wend. 292; Union Bank v. Knapp, 3 Pick. 96, 108 ; Smith v. Downs, 6 Conn. 365 ; Stimmel u. Underwood, 3 Gill & Johns. 282; Howe v. Howe, 10 N. Hamp. 88. 2 Evans v. Eaton, 7 Wheat. 356, 424, per Story, J. ; Van Nuys v. Ter- hune, 3 Johns. Cas. 82 ; Stewart v. Kip, 5 Johns. 256 ; Evans v. Hettioh, 7 Wheat. 453; Clapp v. Mandeville, 5 How. Mis. R. 197. .3 Bent 0. Baker, 3 T. R. 27. 4 Spurr V. Pearson, 1 Mason, 104; Hoyt v. Wildfire, 3 Johns. 518. 5 Richardson v. Carey, 2 Rand, 87 ; Owings ii. Speed, 5 Wheat. 423. 6 Jackson v. Hogarth, 6 Cowen, 248. 7 Per Ashurst, J., in Walton v. Shelley, 1 T. R. 301. See also Blackett V. Weir, 5 B. & C. 387, per Abbott, C. J. ; Duncan v. Meikleham, 3 C. Se P. 192; Curtis v. Graham, 12 Martin, 289. 8 PauU V. Brown, 6 Esp. 34 ; Nowell v. Davies, 5 B. & Ad. 368. 544 . LAW OF EVIDENCE. [PART III. a suit concerning the title.^ And the purchaser of a license to use a patent may be a witness for the patentee, in an action for infringing the patent.^ § 390. The true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evi- dence for or against him, in some other action.^ It must be a present, certain, and vested interest, and not an interest uncertain, remote, or contingent. • Thus the heir apparent to an estate is a competent witness in support of the claim of his ancestor ; though one, who has a vested interest in remainder, is not competent.* And if the interest is of a doubtful nature, the objection goes to the credit of the wit- ness, and not to his competency. For, being always pre- sumed to be competent, the burden of proof is on the ob- jecting party, to sustain his exception to the competency ; and if he fails satisfactorily to establish it, the witness is to be sworn.^ / § 391. The magnitude or degree of the interest is not re- carded in estimating its effect on the mind of the witness ; for it is impossible to measure the influence which any given interest may exert. It is enough, that the interest which he has in the subject is direct, certain, and vested, however small may be its amount ; ^ for, interest being admitted as a dis- 1 Jackson v. Brooks, 8 Wend. 426 ; Doe v. Maisey, 1 B. & Ad. 439. 2 De Rosnie v. Fairlie, 1 M. & Rob. 457. 3 1 Gilb. Evid. by Lofft, p. 225 ; Bull. N. P. 284 ; Bent v. Baker, 3 T. R. 27 ; 6 Bing. 394, per Tindal, C. J. ; Supra, § .386 ; Rex v. Boston, 4 Bast, 581, per Lord EUenborough. 4 Smith V. Blackham, 1 Salk. 283 ; Doe v. Tyler, 6 Bing. 390. But in an action for waste, brought by a landlord, who is tenant for life, the remain- der-man is a competent witness for the plaintiff' ; for the damages would not belong to the witness, but to the plaintiff''s executor. Leaeh v. Thomas, 7 C. & P. 327. 5 Bent V. Baker, 3 T. R. 27, 32 ; Jackson v. Benson, 2 Y. & J. 45 ; Rex V. Cole, 1 Esp. 169 ; Duel v. Fisher, 4 Denio, 515 ; Comstook v. Rayford, 12 S. & M. 369 ; Story v. Saunders, 8 Humph. 663. , 6 Burton v. Hinde, 5 T. R. 173 ; Butler v. Warren, 11 Johns. 67 ; Doe v. Tooth, 3 Y. & J. 19. CHAP. II.] COMPETENCY OF WITNESSES. 545 qualifying circumstance in any case, it must of necessity be so in every case, whatever be the character, rank, or fortune , of the party interested. Nor is it necessary, that the wit- ness should be interested in that which is the subject of ' the suit ; for, if he is liable for the costs, as in the case of a prochein amy, or a guardian, or the like, we have already seen,' that he is incompetent. And though, where the wit- ness is equally interested on both sides, he is not incompe- tent ; yet if there is a certain excess of interest on one side, it seems that he will be incompetent to testify on that side ; for he is interested, to the amount of the excess, in procuring a verdict for the party, in whose favor his interest prepon- derates.2 § 392. The natv/re of the direct interest in the event of the suit which disqualifies the witness, may be illustrated by reference to some adjudged cases. Thus, persons having become bail for the defendant have been held incompetent to testify as witnesses on his side ; for they are immediately made liable, or discharged, by the judgment against or in favor of the principal. And if the bail have given security for the appearance of the defendant, by depositing a sum of money with the officer, the effect is the same.^ If an under- 1 Supra, § 347. See also, infra, 401, 402. 2 Larbalestier v. Clark, 1 B. & Ad. 899. Where this preponderance arose from a liability to costs only, the rule formerly was to admit the wit- ness ; because of the extreme difficulty which frequently arose, of determin- ing the question of his liability to pay the costs. See Ilderton v. Atkihson, 7 T. R. 480 ; Birt u. Kershaw, 2 East, 458. But these cases were broken in upon, by Jones v. Brooke, 4 Taunt. 464 ; and the witness is now held incompetent, wherever there is a preponderancy of interest on the side of the party adducing him, though it is created only by the liability to costs. Townsend v. Downing, 14 East, 565 ; Hubbly v. Brown, 16 Johns. 70 ; Scott V. McLellan, 2 Greenl. 199; Bottomley v. Wilson, 3 Stark. R. 148; Har- man v. Lesbrey, 1 Holt's Cas. 390 ; Edmonds v. Lowe, 8 B. & C. 407. And see Mr. Evans's observations, in 2 Poth. Obi. p. 269, App. No. 16. The existence of such a rule, however, was regretted by Mr. Justice Littledale, in 1 B. & Ad. 903 ; and by some it is still thought the earlier cases, above cited, are supported by the better reason. See further, Barretto v. Snowden, 4 Wend. 181 ; Hall v. Hale, 8 Conn. 336. 3 Lacon v. Higgins, 3 Stark. R. 132 ; 1 T. K. 164, per Buller, J. But in 46* 546 LAW OF EVIDENCE. [PART III. writer, who has paid his proportion, is to be repaid in the event of the plaintiff's success in a suit against another undferwriter upon the same policy, he cannot be a witness for the plaintiff.^ A creditor, whether of a bankrupt,, or of an estate, or of any other person, is not admissible as a wit- ness to increase or preserve the fund, out of which he is entitled to be paid, or otherwise benefited.^ Nor is a bank- rupt competent in an action by his assignees, to prove any fact tending to increase the fund ; though both he and his creditors may be witnesses to diminish it.^ The same is true such oases, if the defendant wishes to examine his bail, the Court will either allow his name to be stricken out, on the defendant's adding and justifying another person as his bail ; or, even at the trial, will permit it to be stricken out of the bail-piece, upon the defendant's depositing a sufficient sum with the proper officer. 1 Tidd's Pr. 259 ; Baillie v. Hole, 1 Mood. & M. 289 ; S C. & P. 560, S. C. ; Whartley v. Fearnley, 2 Chitty, R. 103. And in like manner the surety in a replevin-bond may be rendered a competent witness. for the plaintiff. Bailey v. Bailey, 1 Bing. 92. And so, of the indorser of a writ, who thereby becomes surety for payment of the costs. Roberts v, Adams, 9 Greenl. 9. So in Indiana, of a prochein amy. Harvey v. Coffin, 5 Blackf. 566. See further, Salmon v. Ranoe, 3 S. & R. 311, 314; Hall v. Baylies, 15 Pick. 51, 53; Beckley v. Freeman, Id. 468; Allen v. Hawks, 13 Pick. 79 ; McCullooh v. Tyson, 2 Hawks, 336 ; Infra, § 430 ; Comstock V. Paie, 3 Rob. Louis. R. 440. 1 Forrester v. Pigou, 3 Carapb. 380 ; 1 M. & S. 9, S. C. 2 Craig V. Cundell, 1 Campb. 381 ; Williams v. Stephens, 2 Campb. 301 ; Shuttleworth v. Bravo, 1 Stra. 507; Powel v. Gordon, 2 Esp. 735; Stewart V. Kip, 5 Johns. 256 ; Holden v. Hearn, 1 Beav. 445. But to disqualify the witness, he must be legally entitled to payment out of the fund. Phenix v. Ingraham, 5 Johns. 427 ; Peyton v. Hallett, 1 Caines, 363, 379 ; Howard v. Chadbourne, 3 Greenl. 461 ; Marland u. Jefferson, 2 Pick. 240 ; Wood v. Braynard, 9 Pick. 322. A mere expectation of payment, however strong, if not amounting to a legal right, has been deemed insufficient to render him incompetent. Seaver v. Bradley, 6 Greenl. 60. 3 Butler V. Cooke, Cowp. 70 ; Ewens v. Gold, Bull. N. P. 43 ; Green ii, Jones, 2 Campb. 411 ; Loyd v. Stretton, 1 Stark. R. 40 ; Rudge v. Fergu- son, 1 C. & P. 253 ; Masters a. Drayton, 2 T. R. 496 ; Clark v. Kirkland, 4 Martin, 405. In order to render the bankrupt competent, in such cases, he must release his allowance and surplus ; and he must also have obtained his certificate, without which he is in no case a competent witness for his assignees. Masters v. Drayton, 2 T. R. 496 ; Goodhay v. Hendry, 1 Mood. &M. 319. And though his certificate has been allowed by the competent number of creditors, and no opposition to its final allowance is anticipated, CHAP. II.] COMPETENCY OF WITNESSES. 547 of a legatee, without a release, and also of an heir or distrib- utee, in any action affecting the estate.^ So, where the imme- diate effect of the judgment for the plaintiff is to confirm the witness in the ■enjoyment of an interest in possession,^ or, to place him in the immediate possession of a right,^ he is not a competent witness for the plaintiff. Neither can a lessor be admitted as a witness, to prove a right of possession in his lessee to a portion of land claimed as part of the premises leased.* § 393. So where the event of the suit, if it is adverse to the party adducing the witness, will render the latter liable either to a third person, or to the party himself, whether the yet, until its allowance by the Lord Chancellor, he is still incompetent ; nor will the trial for that purpose be postponed. Tenant v. Strachan, 1 Mood. & M. 377. So, if his certificate has been finally obtained, yet, if his future effects remain liable, (as in the case of a second bankruptcy, where he has not yet paid the amount necessary to exempt his future acquisitions,) he is still incompetent as a witness for the assignees, being interested to increase the fund. Kennet v. Greenwollers, Peake's Cas. 3. The same rules apply to the case of insolvent debtors. Delafield v. Freeman, 6 Bing. 294 ; 4 C. & P. 67, S. C. ; Kudge v. Ferguson, 1 C. & P. 253. But upon grounds of public policy and convenience, a bankrupt is held inadmissible to prove any fact which is material to support or to defeat the fiat issued against him. Nor is a creditor competent to support the fiat, whether he has or has not availed himself of the right of proving under the' bankruptcy . See 1 Phil. Evid. 94, 95, 96, and cases there cited. , 1 Hilliard v. Jennings, 1 Ld. Raym. 505 ; 1 Burr. 424; 2 Stark. R. 546 ; Creen v. Salmon, 3 S. 8j P. 388 ; Bloor v. Davies, 7 M. & W. 235. And if he is a residuary legatee, his own release of the debt will not render him competent for the executor, in an action against the debtor ; for be is still interested in supporting the action, in order to relieve the estate from the charge of the costs. Baker v. Tyrwhitt, 4 Campb. 27 ; 6 Bing. 394, per Tindal, C. J.; Matthews v. Smith, 2 Y. & J. 426 ; Allington v. Bearcroft, Peake's Add. Cas. 212 ; West v. Randall, 2 Mason, 181 ; Randall v. Phillips, 3 Mason, 378; Campbell v. Tousey, 7 Cowen, 64; Carlisle v. Burley, 3 Greenl. 250. Nor is a legatee competent to testify against the validity of the will, if it is, on the whole, for his interest to defeat it. Roberts v. Trawick, 13 Ala. 68. 2 Doe V. Williams, Cowp. 621. 3 Rex V. Williams, 9 B. & C. 549. 4 Smith V. Chambers, 4 Esp. 164. 548 LAW OF EVIDENCE. [pART III. liability arise from an express or implied legal obligation to indemnify, or from an express or implied contract to pay money upon that contingency, the witness is in like manner incompetent. The cases under this branch of the rule are apparently somewhat conflicting ; and therefore it may de- serve a more distinct consideration. And here it will be convenient to distinguish 'between those cases where the judgment will be evidence of the material facts involved in the issue, and those where it will be evidence only of the amount of damages recovered, which the defendant may be compelled to pay. In the former class, which will hereafter be considered, the interest of the party is in the record, to establish his entire claim ; in the latter, which belongs to the present head, it is only to prove the amount of the injury he has suffered. § 394. Thus, in an action against the principal for dam- age occasioned by the neglect or misconduct of his agent or servant, the latter is not a competent witness for the defend- ant without a release ; for he is, in general, liable over to his master or employer, in a subsequent action, to refund the amount of damages which the latter may have paid. And though the record will not be evidence against the agent, to establish the fact of misconduct, unless he has been duly and seasonably informed of the pendency of the suit, and required to defend it, in which case it will be received as evidence of all the facts found;-' yet it wiU always be admis- sible to show the amount of damages recovered against his employer.^ The principle of this rule applies to the relation of master and servant, or employer and agent, wherever that relation in its broadest sense may be found to exist ; as, for example, to the case of a pilot, in an action against the cap- tain and owner of a vessel for mismanagement, whUe the pilot was in charge ;^ or, of the guard of a coach, implicated 1 Hamilton v. Cutts, 4 Mass. 349; Tyler ti. Ulmer, 12 Mass. 163. See infra, §§ 523, 527, 538, 639. 2 Green v. New River Co. 4 T. R. 589. 3 Hawkins v. Finlayson, 3 C. & P. 305. But the pilot has been held CHAP. II.] COMPETENCY OF WITNESSES. 549 in the like mismanagement, in an action against the propri- etor ; ^ or, of a broker, in an action against the principal for misconduct in the purchase of goods, which he had done through the broker;^ or, of a sheriff's officer, who had given security for the due execution of his duty, in an action against the sheriff for misconduct in the service of process by the same officer ; ^ or, of a ship-master, in an action by his owner against underwriters, where the question was, whether there had been a deviation ; * neither of whom are competent to give testimony, the direct legal effect of which wiU be, to place themselves in a situation of entire security against a subsequent action. But the liability must be direct and immediate to the party ; for if the witness is liable to a third person, who is liable to the party, such circuity of interest is no legal ground of exclusion.^ The liability also must be legal ; for if the contract be against law, as, for example, if it be a promise to indemnify an officer for a vio- lation of his duty in the service of process, it is void ; and the promisor is a competent witness, the objection going only to his credibility.^ § 395. The same principle applies to other cases, where the direct effect of the judgment will be to create any other legal claim against the witness. Thus, if he is to repay a sum of money to the plaintiff, if he fails in the suit he is admissible in an action by the owners against the underwriters, for the loss of the vessel while in his charge, on the ground that his interest was bal- anced. Varin v. Canal Ins. Co. 1 Wilcox, 223. 1 Whitamore w. Waterhouse, 4 C. & P. 383. 2 Field V. Mitchell,, 6 Esp. 71 : Gevers v. Mainwaring, 1 Holt's Cas. 139; Boorman v. Browne, 1 P. & D. 364 ; Moorish v. Foote, 8 Taunt. 454. 3 Powel V. Hord, 1 Stra. 650 ; 2 Ld. Eaym. 14U, S. C. ; Whitehonse v. Atkinson, 3 C. & P. 344 ; Broom v. Bradley, 8 C. & P. 500. So, the credi- tor is incompetent to testify for the officer, where he is liable over to the latter, if the plaintiff succeeds. Keightley v. Birch, 3 Campb. 621. See also Jewett v. Adams, 8 Greenl. 30 ; Turner v. Austin, 16 Mass. 181 ; Rice ■;. Williins, 8 Shepl. 558 ;?.[Howlai!id v. Willetts, 5 Selden, 170.] * De Symonds v. De la Cour, 2 New Rep. 374. 6 Clark V. Lucas, Ry. & M. 32. : - 6 Hodsdon v. Wilkins, 7 Greenl. 113. 550 LAW OF EVIDENCE. [PART III. incompetent to be sworn for the plaintiff.^ So, in an action on a policy of insurance, where there has been a consolida- tion rule, an underwriter, who is a party to such rule, is not a competent witness for others.^ The case is the same, wherever a rule is entered into, that one action shall abide the event of another ; for in both these cases all the parties have a direct interest in the result. And it makes no differ- ence in any of these cases, whether the witness is called by the plaintiff ox by the defendant; for, in either case, the test of interest is the same ; the question being, whether a judg- ment, in favor of the party calling the witness, will procure a direct benefit to the witness. Thus, in assumpsit, if the non-joinder of a co-contractor is pleaded in abatement, such person is not a competent witness for the defendant to sup- port the plea, unless he is released ; for though if the defence succeeds, the witness will still be liable to another action, yet he has a direct interest to defeat the present action, both to avoid the payment of costs, and also to recover the costs of the defence.^ The case is the same, where, in a defence upon the merits, a witness is called' by the defendant, who is confessedly, or by his own testimony, a co-contractor, or partner with him in the subject of the action.* So, in a suit against one on a joint obligation, a co-obligor, not sued, is not a competent witness for the plaintiff, to prove the execu- tion of the instrument by the defendant ; for he is interested to relieve himself of part of the debt, by charging it on the 1 Fotheringham u. Greenwood, 1 Stra. 129; Rogers «. Turner, 5 West. Law Journ. 406. 2 The same principle also applies where the underwriter, offered as a wit- ness for the defendant, has paid the loss, upon an agreement with the assured that the money should be repaid, if he failed to recover against the other underwriters. Forrester v. Pigou, 1 M. & S. 9 ; 3 Campb. 380, S. G. 3 Young V. Bairaor, 1 Esp. 103 ; Lefferts v. De Mott, 21 Wend. 136. 4 Birt V. Wood, 1 Esp. 20; Goodacre v. Breame, Peake's Cas. 174; Cheyne v. Koops, 4 Esp. 112; Evans v. Yeatherd, 2 Bing. 133; Hall v. Cecil, 6 Bing. 181 ; Russell v. Blake, 2 M. & G. 373, 381, 382 ; Vanzant v. Kay, 2 Humph. 106, 112. But this point has in some cases been otherwise decided. See Cossham u. Goldney, 2 Stark. R. 413; Blackett w. Weir, 5 B. & C. 385. See also Poole v. Palmer, 9 M. & W. 71. CHAP. II.] COMPETENCY OF WITNESSES. 551 defendant.^ And upon a similar principle, where an action was brought upon a policy of insurance, averred in the declaration to have been eJBFected by the plaintiffs, as agents, for the use and benefit and on the account of a third person, it was held that this third person was not a competent wit- ness for the plaintiffs ; and that his release to the plaintiffs, prior to the action, of all actions, claims, &c., which he ■^ might have against them by reason of the policy, or for any moneys to be recovered of the underwriters, did not render him competent ; neither could his assignment to them, after action brought, of all his interest in the policy, have that effect ; for the action being presumed to have been brought by his authority, he- was still liable to the attorney for the costs.^ So, in an action on a joint and several bond against the surety, he cannot call the principal obligor to prove the payment of money by the latter in satisfaction of the debt ; for the witness has an interest in favor of his surety to the extent of the costs.^ So, also, where a legatee sued the executor, for the recovery of a specific legacy, namely, a bond ; it was held, that the obligor, having a direct interest in preventing its being enforced, was not a competent wit- ness to prove that the circumstances, under which the bond was given, were such as to show that it was irrecoverable.* § 396. It may seem, at the first view, that where the plain- tiff calls his own servant or agent to prove an injury to his property, while in the care and custody of the servant, there could be no objection to the competency of the witness to prove misconduct in the defendant ; because, whatever might 1 Marshall v. Thraikill, 12 Ohio R. 275 ; Ripley b. Thompson, 12 Moore, 55; Brown v. Brown, 4 Taunt. 752; Marquand v. Webb, 16 Johns. 89 ; Purviance v. Dryden, 3 S. & R. 402, 407. And see Latham v. Kenniston, 13 N. Hamp. R. 203. a Bell V. Smith, 5 B. & C. 188. 3 Townsend v. Downing, 5 East, 565;»567, per Lord EUenborough. In an action against the sherifT, for a negligent escape, the debtor is not a compe- tent witness for the defendant, he being liable over to the defendant for the damages and costs. Griffin v. Brown, 2 Pick. 304. * Davies v. Morgan, 1 Beav. 405. 552 LAW OF EVIDENCE. [PAET in. be the result of the action, the record would be no evidence against him in a subsequent action by the plaintiff. But still the witness, in such case, is held inadmissible ; upon the general principle already mentioned,^ in cases where the master or principal is defendant, namely, that a verdict for the master would place the servant or agent in a state of security against any action, which, otherwise, the master might bring against him ; to prevent which he is directly interested to fix the liability on the defendant. Thus, in an action for an injury to the plaintiff's cart, or coach, or horses, by negligently driving against them, the plaintiff's own driver or coachman is not a competent witness for him with- out a release.^ So, in an action by the shipper of goods, on a policy of insurance, the owner of the ship is not a compe- tent witness for the plaintiff to prove the seaworthiness of the ship,, he having a direct interest to exonerate himself from liability to an action for the want of seaworthiness, if the plaintiff should fail to recover of the underwriter.^ The only difference between the case where the master is plaintiff and where he is defendant, is this, that in the latter case he might claim of the servant both the damages and costs which he had been compelled to pay ; but in the former, he could claim only such damages as directly resulted from the ser- vant's misconduct, of which the costs of an unfounded suit of his own would not constitute a part.* 1 Supra, § 393. This principle is applied to all oases, where the testimdliy of the witness, adduced by the plaintiff, would discharge him from the plaintiff's demand, by establishing it against the defendant. Thus, in an action by A against B for the board of C, the latter is not a competent witness for the plaintiff to prove the claim. Emerton v. Andrews, 4 Mass. 658 ; Hodsou v. Marshall, 7 C. & P. 16 ; \_lnfra, § 416.] 3 Miller v. Falconer, 1 Campb. 251 ; Moorish v. Foote, 8 Taunt. 464 ; Kerrison v. Coatsworth, 1 C. & P. 645 ; Wake v. Lock, 5 C. & P. 454. In Sherman v. Barnes, 1 M. & Rob. 69, the same point was so ruled by Tindal, C. J., upon the authority of Moorish u. Foote, though he seems to have thought otherwise upon principle, and perhaps with better reason. 3 Kotheroe v. Elton, Peak's case, 84, cited and approved, per Gibbs, C. J., in 8. Taunt. 457. 4 Per Tindal, C. J., in Fauoourt v. Bull, 1 Bing. N. C. 681, 688. CHAP. II.] COMPETENCY OF WITNESSES. 563 § 397. Where the interest of the witness arises from lia- bility over, it is sufficient that he is bound to indemnify the party calling him, against the consequence of some fact essential to the judgment. It is not necessary, that there should be an engagement to indemnify him generally against the judgment itself, though this is substantially involved in the other ; for a covenant of indemnity against a particular fact, essential to the judgment, is in effect a covena;it of indemnity against such a judgment. Thus, the warrantor of title to the property which is in controversy, is generally incompetent as a witness for his vendee, in an action con- cerning the title. And it makes no difference in what man- ner the liability arises, nor whether the property is real" or personal estate. If the title is in controversy,, the person who is bound to make it good to one of the litigating parties against the claim of the other, is identified in interest with that party, and therefore cannot testify in his favor.^ And if the quality or soundness is the subject of dispute, and the vendee with warranty has resold the article with similar warranty, the principle is still the same. If the effect of the judgment is certainly to render him liable, though it be only for costs, he is incompetent ; ^ but if it is only to render it 1 Serle v. Serle, 2 Roll. Abr. 685 ; 21 Vin. Abr. 362, tit. Trial, G. f. pi. 1 ; Steers v. Cawardine, 8 C. & P. 570. But if the vendor sold without any covenant of title, or with a covenant I'estricted to claims set up under the vendor himself alone, the vendor is a competent witness for his vendee. Busby V. Greenslate, 1 Stra. 445 ; Twamlily v. Henley, 4 Mass. 441 ; Bei- delman v. Foulk, 5 Watts, 308 ; Adams v. Cuddy, 13 Pick. 460 ; Bridge v. Egglestoh, 14 Mass. 245 ; Davis v. Spooner, 3 Pick, 284 ; Lathrop v. Muzzy, 5 Greenl. 450. 2 Lewis V. Peake, 7 Taunt. 153. In this case the buyer of a horse with warranty resold him with a similar warranty, and, being sued thereon, he gave notice of the action to his vendor, offering him the option of defending / it; to which having received no answer, he defended it himself, and failed ; it was holden, that he was entitled to recover of his vendor the costs of' defending that action, as part of the damages he had sustained by the false warranty. In the later case of Baldwin v. Dixon, 1 M. & Rob. 59, where the defendant, in an action on a warranty of a horse, called his vendor, who had given a similar warranty. Lord Tenterden, after examining authorities, admitted the witness. A vendor was admitted, under similar circumstances, TOI.. I. 47 554 LAW OF EVIDENCE. [PART III. more or less probable that he will be prosecuted, the objection goes only to his credibility! But whatever the case may be, his liability must be direct and immediate to the party call- ing him, and not circuitous and to some other person, as, if a remote vendor with warranty is called by the defendant as a witness, where the article has been successively sold by several persons with the same warranty, before it came to the defendant.^ § 398. In order to render the witness liable, and therefore incompetent, as warrantor of the title, it is not necessary to show an express contract to that effect ; for an implied war- rcmty is equally binding. Thus, the vendor of goods, having pbssession and selling them as his OMjn, is held bound in law, to warrant the title to the vendee ; ^ and therefore he is gener- ally not competent as a witness for the vendee in support of the title.^ This implied warranty of title, however, in the by Lord Alvanley, in Brigas v. Crick, 5 Esp. 99. But in neither of these cases does it appear that the witness had been called upon to defend the suit. In the still more recent case of Bliss v. Mouptaiu, 1 M. & Eob. 302, after an examination of various authorities, Alderson, J., held the vendor incom- petent, on the ground that the effect of the judgment for the defendant would be to relieve the witness from an action at his suit. 1 Clark V. Lucas, Ry. & M. 32 ; I C. & P. 156 ; Briggs v. Crick, 5 Esp. 99; Martin v. Kelly, 1 Stew. Ala. R. 198. Where the plaintiff's goods were on the wagon of a carrier, which was driven by the carrier's servant ; and the goods were alleged to be injured by reason of a defect in the high- way ; it was held, in an action against the town for this defect, that the car- rier's servant was a competent witness for the owner of the goods. Little- field V. Portland, 13 Shepl. 37. 2 2 Bl. Comm. 451. See also 2 Kent, Comm. 478, and cases there cited. See also Emerson v. Brigham, 10 Mass. 203, (Rand's ed.) note. 3 Heermance v. Vernoy, 6 Johns. 5 ; Hale v. Smith, 6 Greenl. 416 ; Baxter v. Graham, 5 Watts, 418. In the general doctrine, stated' in the text, that where the vendor is liable ov*r, though it be only for costs, he is not a competent witness for the vendee, the English and American decisions agree. And it is believed that the weight of English authority is on the side of the American doctrine, as stated in the text, namely, that the vendor in possession stipulates that his title is good. But where the witness claims to have derived from the plaintiff the same title which he conveyed to the defendant, and so is accountable for the value to CHAP. II.] COMPETENCY OF WITNESSES. 555 case of sales by sheriffs, executors, administrators,- and other trustees, is understood to extend no farther than this, that they do not know of any infirmity in their title to sell in such capacity, and therefore they are in general competent wit- § 399. In regard to parties to bills of exchange and nego- tiable promissory notes, we have already seen that the per- sons who have put them into circulation by indorsement, are sometimes held incompetent witnesses, to prove them origi- nally void.^ But, subject to this exception, which is main- tained on grounds of public policy, and of the interest of trade, and the necessity of confidence in commercial transac- tions, and which, moreover, is not everywhere conceded, par- ties to these instruments are admitted or rejected, in suits between athei parties, like any other witnesses, according as they are interested or not in the event of the suit. In gen- eral, their interest will be found to be equal on both sides ; the one party or the other, in either event of the suit, unless he can discharge himself by other proof, he is a competent witness for the defendant ; unless he has so conducted as to render himself accountable to the latter for the costs of the suit, as part of the damages to be recovered against him. Thus, where in trover for a horse, the defendant called his vendor to prove that the horse was pledged to him for a debt due from the plaintiff, with authority to sell him after a certain day, and that he sold him accordingly to the defend- ant; he was held a competent witness. Nix v. Cutting, 4 Taunt. 18. So, inassumpsit, for the price of wine sold to the defendant, where the defence was, that he bought it of one Faircloth, and not of the plaintiff, Fairoloth was held a competent witness for the defendant to prove that he himself pur- chased the wine of the plaintiff, and sold it to the defendant, who had paid him the price. Labalastier v. Clark, 1 B. & Ad. 899. So, the defendant's vendor has been held competent, in trover, to prove that the goods were his own, and had been fraudulently taken from him by the plaintiff. Ward V. Wilkinson, 4 B. & Aid. 410, where Nix v. Cutting is explained by Hol- royd, J. See also Baldwin v. Dixon, 1 M. & Bob. 69 ; Briggs v. Crick, 5 Esp. 99, and Mr. Starkie's observations on some of these oases ; 1 Stark. Evid. 109, note (n) ; 2 Stark. Evid. 894, note (d). 1 Peto V. Blades, 5 Taunt. 657 ; Mockbee v. Gardiner, 2 Har. & Gill, 176 ; Petermans v. Laws, 6 Leigh's R. 523, 529. 2 Supra, §§ 384, 385. 566 LAW OF EVIDENCE. [PAllT III. and in all cases of balanced interest, the witness, as we shall hereafter see, is admissible.^ Thus, in an action against one of several makers of a note, another maker is a competent witness for the plaintiff, as he stands indifferent ; for if the plaintiff should recover in that action, the witness will be liable to pay his contributory share ; and ^f the plaintiff , should fail in that action, and force the witness to pay the whole, in another suit, he will still be entitled to contribu- tion.2 So, in an action against the acceptor of a bill, the drawer is in general a competent witness for either party ; for if the plaintiff recovers, the witness pays the bill by the hands of the acceptor ; if not, he is liable to pay it himself.^ And in an action by the indorsee of a note against the in- dorser, the maker is a competent w^ess for the plaintiff; for if the plaintiff prevails, the witness will be liable to pay the note to the defendant ; and if the defendant prevails, the witness will be liable, to the same extent, to the plaintiff.* § 400. And though the testimony of the witness, by de- feating the present action on the bill or note, may probably deter the holder from proceeding in another action against the witness, yet this only affords matter of observation to the Jury, as to the credit to be given to his testimony. Thus, in an action by the indorsee of a note against the indorser, the maker is a competent witness for the defendant, to prove that the date has been altered.^ And in an action by the 1 Infra, § 420. 2 York V. Blott, 5 M. & S. 71. He has also been held admissible for the defendant. Thompson v. Armstrong, 5 Ala. 3S3. But see the cases cited supra, § 395, notes, and 12 Ohio R. 279. 3 Dickinson v. Prentice, 4 Esp. 32 ; Lowber v. Shaw, 5 Mason, 241, per Story, J. ; Rich v. Topping, Peake's Cas. 224. But if he is liable in one event for the costs, he has an interest on that side, and is inadmissible. Scott V. McLellan, 2 Greenl. 199 ; Supra, § 391, and note (3). * Venning v. Shuttleworth, Bayley on Bills, p. 593 ; Hubbly v. Brown, 16 Johns. 70. But the maker of an accommodation note, made for his own benefit, is incompetent. Pierce v. Butler, 14 Mass. 303, 312 ; Infra, § 401. 5 Levi V. Essex, MSS., 2 Esp. Dig. 708, per Lord Mansfield ; Chitty on Bills, p. 654, note (b), (8th ed.) CHAP. II.] , COMPETENCY " OP WITNESSES. 657 indorsee of a bill against the drawer or acceptor, an indorser is, in general, a competent witness for either party ; for the plaintiff, because, though his success may prevent him from calling on the indorser, it is not certain that it will ; and whatever part of the bill or note he may be compelled to pay, he may recover again of the drawer or acceptor ; and he is competent for the defendant, because if the plaintiff fails against the drawer or acceptor, he is driven either to sue the indorser or abandon his claim.^ § 401. But if the verdict would necessarily benefit or afTect the witness, as if he would be liable, in one event, to the costs of the action, then, without a release, which will annul his interest in the event, Be will not be admissible as a witness on the side of the party in whose favor he is so interested. Thus, the party for whose use an accommodation note or bill has been drawn or accepted, is incompetent as a witness, when adduced by him who has lent his own name and lia- bility for the accommodation of the witness.^ So, in an action againsi the drawer of a bill of exchange, it has been held, that the acceptor is not a competent witness for the defendant, to prove a set-ofF;. because he is interested in lessening the balance, being answerable to the defendant only for the amount which the plaintiff may recover against him.2 1 Bayley on Bills, 594, 595, (2d Am. ed. by Phillips & Sewall.) And see Bay v. Gunn, 1 Denio, R. 108. 2 Jones V. Brooke, 4 Taunt. 463 ; Supra, § 391, and note. See also Bot- tomley v. Wilson, 3 Stark. R. 148 ; Harman v. Lasbrey, Holt's Cas. 390 ; Edmonds v. Lowe, 8 B. & C. 407 ; Hall v. Cecil, 6 Bing. 181 ; Scott v. McLellan, 2 Greenl. 199 ; Pierce v. Butler, 14 Mass. 303, 312 ; Southard v. Wilson, 8 Shepl. 494. 3 Mainwaring v. Mytton, 1 Stark. R. 83. It is deemed unnecessary any further to pursue this subject in this place, or particularly to mention any of the numerous cases, in which a party to a bill or note has been held compe- tent," or otherwise, on the ground of being free' from interest, or interested, under the particular circumstances of the case. It will suffice to refer the reader to the cases collected in Bayley on Bills, p. 586-599, (2d Am. ed. by Phillips & Sewall,) with the notes of the learned editors ; Chitty on Bills, 47* 558 LAW OS EVIDENCE. [PAET III. § 402. Where a liability to costs in the suit arises in any other manner, it is still an interest sufficient to render the witness incompetent.^ Thus, where the witness called by the plaintiff had himself employed the attorney, to whom he had made himself liable for the costs, he was held incompe- tent, without a release from the attorney.^ So, where he had given the plaintiff a bond of indemnity against the costs of the suit, he was held incompetent as a witness for the plaintiff, as to any point arising in the action ; even such as the service of a notice on the defendant, to produce certain papers at the trial.*^ Thus, also, where an attorney,* or an executor,^ or the tenant, on whose premises the goods of the plaintiff in replevin had been distrained for rent,^ or the principal in an administration-bond, the action being only against the surety,'^ have been found personally liable for the costs of the suit, they have been held incompetent as wit- nesses on the side of the party in whose favor they were thus interested. But if the contract of indemnity is illegal, as, for example, if it be a contract to bear each other harm- less in doing wrong, it creates no legal liability to affect the witness.^ § 403. This doctrine is applied in the same manner in criminal cases, where the witness has a direct, certain, and immediate interest in the result of the prosecution. Thus, in cases of summary convictions, where a penalty is imposed 654-659, (8th ed.) ; 2 Stark. Evid. 179, 182, (6th Am. ed. with Metoalf's, Ingraham's, and Gerhard's notes) ; Thayer v. Grossman, 1 Metcalf, R. 416. 1 See supra, § 395. 2 York V. Gribble, 1 Esp. 319 ; Marland v. Jefferson, 2 Pick. 240 ; Hand- lej V. Edwards, 1 Curt. 722. 3 Butler V. Warren, 11 Johns. 57. , 4 Chadwick v. Upton, 3 -Pick. 442. 5 Parker v. Vincent, 3 C. & P. 38. 6 Bush V. Flickwire, 17 S. & R. 82. 7 Owens V. GoUinson, 3 Gill & Johns. 26. See also Cannon v. Jones, 4 Hawks, 368 ; Riddle v. Moss, 7 Cranch, 206. 8 Humphreys v. Miller, 4 C. & P. 7, per Lord Tenterden ; HodsoO v. Wilkins, 7 Greenl. US. CHAP. II.] , COMPETENCY 01? WITNESSES. 659 by statute, and the whole or a part is given to the informer pr prosecutor, who becomes entitled to it forthwith upon the conviction, he is not, at the Common Law, a competent witness for the prosecution.^ So, in a prosecution under the statutes for forcible entry, where the party injured is entitled to an award of immediate restitution of the lands, he is not a competent witness.^ This rule, however, is subject to many exceptions, which will hereafter be stated.^ But it may be' proper here to remark, that, in general, where the penalty or provision for restitution is evidently kitroduced for the sake of the party injured, rather than to insure the detection and punishment of the offender, the party is held incompetent.* § 404. Having thus briefly considered the subject of dis- qualification, resulting from a direct, certain, and immediate, interest in the event of the suit, we come now to the second branch of the general rule, namely, that of interest in the record,'a,s an instrument of evidence in some other suit, to prove a fact therein alleged. The record of a judgment, as hereafter will be seen, is always admissible, even in an action between strangers, to prove the fact that such a judgment was rendered, and for such a sum ; but it is not always and in all cases admissible to prove the truth of any fact, on which the judgment was founded. Thus the record of a judgment against the master, for the negligence of his servant, would be admissible in a subsequent action by the master against the servant, to prove the fact, that such a judgment had been recovered against the master for such an amount, and upon such and such allegations; but not to » Rex V. Williams, 9 B. & C. 549 ; Commonwealth v. PauU, 4 Pick. 251 ; Eex V. Tilley, 1 Stra. 316 ; 2 Euss. on Crim*, 601, 602. But where the penalty is to be recovered by the witness in a subsequent civil action, he is not an incompetent witness upon the indictment. Rex v. Luckup, Willes, 425, n. ; 9 B. & C. 557, 558. 2 Eex V. Bevan, Ey. & M. 242. 3 See in/ra, § 412. 4 Eex V. Williams, 9 B. & C. 549, per Bayley, J. 560 LAW OB EVIDENCE. [PAKT III. prove that either of those allegations was true ; unless in certain cases, where the servant or agent has undertaken the defence, or, being bound to indemnify, has been duly re- quired to assume it. But under the present head are usually classed only those cases in which the record is admissible in evidence fois or against the witness, to establish the facts therein alleged or involved, in order to acquii'e a benefit or repel a loss ; ^ and it is in this view alone that the subject will now be considered. § 405. The usual and clearest illustration of this branch of the. rule is the case of an action brought by or against one of several persons, who claim a customary right of com- mon, or some other species of customary right. In general, in all cases depending on the existence of a particular cus- tom, a judgment establishing that custom is evidence, though the parties are different. Therefore, no person is a compe- tent witness in support of such custom, who would derive a benefit from its establishment ; because the record would be evidence for him in another suit, in which his own right may be controverted. Thus, where the plaintiff prescribed for common of pasture upon Hampton Common, as appur- tenant to his ancient messuage, and charged the defendant with neglect to repair the fence ; it was held, that another commoner, who claimed a simUar prescription in right of another tenement, was not a competent witness to prove the charge;'-' and d fortiori he is not, where the prescription is, that all the inhabitants of the place have common there.^ Thus, also, an inhabitant of a town is not a competent witr ness to prove a prescription for all the inhabitants to dig clams in a certain place ; * nor to prove a prescriptive right 1 1 Stark. Evid. 114, 115 ; Hunterw. King, 4 B. & Aid. 210. 2 Anseomb v. Shore, 1 Taunt. 261. See also Parker v. Mitchell, 11 Ad. & El. 788. 3 Hockley u. Lamb, 1 Ld. Raym. 731. * Lufkin V. Haskell, 3 Pick. 356 ; Moore v. Griffin, 9 Shepl. 850. [But see Look v. Bradley, 13 Met. 369, 372.] CHAP. II.] COMPETENCY OF WITNESSES. 561 of way for all the inhabitants.^ So, where the right to a seat in the common council of a borough was in contro- versy, and it was insisted that by prescription no person was entitled, unless he was an inhabitant and also had a burgage tenure ; it was held, that, though a person having but one of these qualifications was a competent witness to prove the prescription, one who had them both was not ; for he would thereby establish an exclusive right in favor of himself.^ So, where a corporation was lord of a manor, and had approved and leased a part of the common, a freeman was held incompetent to prove that a sufficiency of common was left for the commoners.^ So, one who has acted in breach of an alleged custom by the exercise of a particular trade, is not a competent witness to disprove the existence of such custom.* Nor is the owner of property within a chapelry a competent witness to disprove an immemorial usage, that the land-owners there ought to repair the chapel.^ And it is proper here to add, that in order to exclude a wit- ness, where the verdict depends on a custom, which he is interested to support, it seems to be necessary that the cus- tom should be stated on the record ; ^ for it is said, that the effect of the verdict to support the custom may be aided by evidence.^ § 406. There are some cases, in which the interest of the witness falls under both branches of this rule, and in which 1 Odiorne v. Wade, 8 Pick. 518. The statutes whicli render the inhabi- tants of towns competent witnesses, where the corporation is a party, or is interested, apply only to eases of corporate rights or interest, and not to cases of individual and private interest, though these may extend to every inhabitant. See supra, § 331. j 2 Stevenson v. Nevinson, Mayor, &c., 2 Ld. Kaym. 1353. 3 Burton v. Hinde, 5 T. R. 174. * The Carpenters, &c. of Shrewsbury v. Haward, 1 Doug. 374. 5 Rhodes v. Ainsworth, 1 B. & Aid. 87. See also Ld. Falmouth v. George, 5 Bing. 286. 6 Ld. Falmouth v. George, 5 Bing. 286 ; Stevenson v. Nevinson et al. 2 Ld. Raym. 1353. ? 1 Stark. Evid. 115, note (e). 562 LAW OF EVIDENCE. [PART III. he has been rejected, sometimes on the ground of immedi- ate interest in the event of the suit, and sometimes on the ground of interest in the record, as an instrument of evi- dence. Such is the case of the tenant in possession in an . action of ejectment ; who is held incompetent either to sup- port his landlord's title,' or, to prove that himself, and not the defendant, was the tenant in possession of the land.^ And where a declaration was served on two tenants, in posses- sion of different parts of the premises, and a third person entered into a rule to defend alone, as landlord, it was held, that neither of the tenants was a competent witness for the landlord, to prove an adverse possession by the other of the part held by him ; for as they were identified with the land- lord in interest, the judgment for the plaintiff would be evi- dence of his title, in a future action against them for the mesne profits.^ § 407. So, in • criminal cases, a person interested in the record is not a competent witness. Thus an accessory, whether before or after the fact, is not competent to testify for the principal.* And where several were indicted for a conspiracy, the wife of one was held not admissible as a wit- 1 Doe V. Williams, Cowp. 621 ; Bourne v. Turner, 1 Stra. 682. 3 Doe ;;. Wilde, 5 Taunt. 183 ; Doe v. Bingham, 4 B. & Aid. 672.. 3 Doe V. Preece, 1 Tyrwh. 410. Formerly, it was not material in Eng- land, as it still is not in the United States, to determine with precision in which of these modes th^ witness was interested. But by Stat. 3 & 4 W. 4, c. 42, §§ 26, 27, the objection arising from interest in the record, as a future instrument of evidence, is done away ; the Court being directed, whenever this objection is taken, to indorse the name of the witness on the record or document on which the trial shall be had, and of the party on whose behalf he was called to testify ; after which the verdict or judgment in that action shall never be evidence for or against the witness, or any one claiming under him. The practice under this statute seems to be not yet com- pletely settled ; but the cases which have arisen, and which it is deemed unnecessary here to examine, are stated and discussed in Phil. & Am. on Evid. p. 108-113 ; 1 Phil. Evid. 114-117. See also Poole v. Palmer, 9 M. &W. 71. * 1 Stark. Evid. 130. But the principal is a competent witness against the accessory. The People v. Lohman, 2 Barb. S. C. R. 216. CHAP. II.] COMPETENCY OF -WITNESSES. 563 ness for the others ; a joint offence being charged, and an acquittal of all the others being a ground of discharge for her husband.^ Nor is the wife of one joint trespasser a com- petent witness for another, even after the case is already clearly proved against her husband.^ § 408. The extent and meaning of the rule, by which an interested witness is rejected as incompetent, may be further illustrated by reference to some cases, in which the witness has been deemed not disqualified. We have already seen that mere wishes or bias on the mind of the witness in favor of the party producing him, or strong hopes or expectations of benefit, or similarity of situation, or any other motive, short of an actual and legal interest in the suit, will not disqualify the witness.^ Such circumstances may influence his mind, and affect his opinions, and perhaps may tempt him at least to give a false color to his statements ; and therefore they should be carefully considered by the Jury, in determining the weight or credibility to be given to his testimony ; but they are not deemed sufficient to justify its utter exclusion from the Jury. It may now be further observed, that a remote, contingent, and uncertain interest, does not disqualify the witness. Thus, a paid legatee of a specific sum, or of a chattel, is a competent witness for the executor ; for though the money paid to a legatee may sometimes be recovered back, when necessary for the payment of paramount claims, yet it is not certain that it will be needed for such purpose ; nor is it certain, if the legacy has not been paid, that there are not other fundg sufficient to pay it.* So, also, a creditor of an estate, not in a course of liquidation as an insolvent estate, is a competent witness for the administrator ; for he stands in the same relation to the estate now, as he did to the debtor in his lifetime ; and the probability that his testi- 1 Eex V. Looker, 5 Esp. 107 ; 2 Euss. on Crimes, 602 ; Supra, 403 ; [Com- monwealth V. Kobinson, 1 Gray, 555.] 2 Hawkesworth v. Showier, 12 M. & W. 45. 3 Supra, §§ 387, 389. 4 Clarke V. Gannon, Ry. & M. 31. 564 LAW OP EVIDENCE. [PAKTIII. mony may be beneficial to himself, by increasing the fund out of "which he is to be paid, is equally remote and con- tingent in both cases.^ It is only where his testimony will certainly have that effect, as in the case of a creditor to an insolvent estate, or a residuary legatee, or a distributee, that the witness is rendered incompetent.^ Yet in these cases, and in the case of a creditor to a bankrupt estate, if the legatee, distributee, or creditor has assigned his interest to another person, even equitably, his competency is restored.^ In an action of covenant against a lessee, for not laying the stipulated quantity of manure upon the land ; upon a plea of performance, a sub-lessee of the defendant is a competent witness for him, to support the plea ; * for it does not appear that he is under the like duty to the defendant, or that a recovery by the latter would place the witness in a state of security against a similar action.^ Upon the same principle, a defendant against whom a civil action is pending, is a competent witness for the government on the trial of an indictment for perjury, against one who has been summoned as a witness for the plaintiff in the civil action.^ § 409. Thus, also, the tenant in possession is a competent witness to support an action on the case, brought by the reversioner, for an injury done to the inheritance.'^ So, in an action against an administrator for a debt due by the intes- tate, a surety in the administrator's bond in the Ecclesiasti- 1 Paull V. Brown, 6 Esp. 34 ; Davies v. Davies, 1 Mood. & M. 345 ; Car- ter V. Pierce, 1 T. R. 164. An annuitant under the will is also a competent witness for the executor, in an action against him for the debt of the testa- tor. Nowell V. Davies, 5 B. & Ad. 368. 2 Supra, § 392. 3 Heath v. Hall, 4 Taunt. 326 ; Boynton v. Turner, 13 Mass. 391. 4 Wishaw V. Barnes, 1 Campb. 341. 6 Supra, § 394. 6 Hart's case, 2 Rob. Virg. Rep. 819. '' Doddington v. Hudson, 1 Bing. 257 ; [Schnable u. Koehler, 28 Penn. State R. 181.] Where the defence rested on several cognizances, it was held, that the person under whom one of the cognizances was made, was compe- tent to prove matters distinct from and independent of that particular cog- nizance. Walker v. Giles, 2 C. & K. 671. CHAP. 11.] COMPETENCY OF WITNESSES. 5Ql^ cal Court is a competent witness for him, to prove a tender ; for 'it is but a bare possibility that an action may be brought upon the bond.^ So, in an action against a debtor, who pleads the ingolvent debtor's act in discharge, another cred- itor is a competent witness for the plaintiff, to prove that, in fact, the defendant is not within the operation of the act.^ An executor or trustee under a will, taking no beneficial interest under the will, is a good attesting witness.^ And in an action against an administrator upon a bond of the intes- tate, and a plea of plene administravit by the payment of another bond debt, the obligee in the latter bond is a compe- tent witness to support the plea.* A trespasser, not sued, is a competent witness for the plaintiff, against his co-tres- passer.^ In a qui tarn action, for the penalty for taking excessive usury, the borrower of the money is a competent witness for the plaintiff.^ A person who has been arrested on mesne process and suffered to escape, is a competent witness for the plaintiff, in an action against the sheriff for the escape ; "^ for though the whole debt may be recovered . 1 Carter v. Pierce, 1 T. K. 163. 2 Norcott V. Orcott, 1 Stra. 650. 3 Phipps V. Pitcher, 6 Taunt. 220 ; Comstock v. Hadlyme, 8 Conn. R. 254. In Massachusetts, the executor has been held incompetent to prove the will in the Court of Probate, he being party to the proceedings, and liable to the cost of the trial. Sears v. Dillingham, 12 Mass. 358. But the will may be proved by the testimony of the other witnesses, he having been a competent witness at the time of attestation. Ibid. Generally speaking, any trustee may be a witness, if he has no interest in the matter ; but not otherwise. Main u. Newson, Anthon, 11; Johnson v. Cunningham, 1 Ala. 249 ; George v. Kimball, 24 Pick. 234 ; Norwood v. Morrow, 4 Dev. & Bat. 442. i Bull. N. P. 143 ; 1 Lord Eaym. 745. 5 Morris v. Daubigny, 5 Moore, 319. In an action against the printer of a newspaper for a libel, a proprietor of the paper is a competent witness, as he is not liable to contribution. Moscati v. Lawson, 7 C. & P. 52. 6 Smith V. Prager, 7 T. R. 60. 7 Cass V. Cameron, Peake's Cas. 124 ; Hunter v. King, 4 B. & Aid. 210. If the escape was committed while the debtor was at large, under a bond for the prison liberties, the jailer, who took the bond, is a competent witness for the sheriff. Stewart u. Kip, 5 Johns. 256. vol. I. 48 566 LAW OF EVIDENCE. [PAllT m. against the sheriif, yet, in an action on the judgment against the original debtor, the latter can neither plead in bar, nor give in evidence, in mitigation of damages, the judgment recovered against the sheriff. And one who lias been res- cued is a competent witness for the defendant, in an action against him for the rescue.-^ So, a mariner, entitled to a share in a prize, is a competent witness for the captain in an action brought by him for part of the goods taken.^ In all these cases, it is obvious that whatever interest the wit- ness might have, it was merely contingent and remote ; and, on this ground, the objection has been held to go only to his credibility. § 410. It is hardly necessary to observe that, where a wit- ness is produced to testify against his interest, the rule, that interest disqualifies, does not apply, and the witness is com- petent. § 411. The general rule, that a witness interested in the subject of the suit, or in the record, is not competent to tes- tify on the side of his interest, having been thus stated and explained, it remains for us to consider some of the exceptions to the rule, which, for various reasons, have been allowed. These exceptions chiefly prevail either in criminal cases, or in the affairs of trade and commerce, and are admitted on grounds of public necessity and convenience, and to prevent a failure of justice. They may be conveniently classed thus : (1.) Where the witness, in a criminal case, is entitled to a reward, upon conviction of the offender ; — (2.) Where, being otherwise interested, he is made competent by statute; — (3.) The case of agents, carriers, factors, brokers, or servants, when called to prove acts done for their principals, in the course of their employment ; and — (4.) The case of a wit- ness, whose interest has been acquired after the party had become entitled to his testimony. To these a few others may be added, not falling under either of these heads. 1 Wilson V. Gary, 6 Mod. 211. 2 Anon. Skin. 403. CHAP. II.] COMPETENCY 01' WITNESSES. 567 § 412. And in the jirst place, it is to be observed, that the circumstance that a witness for the prosecution will be enti- tled to a reward from the government upon conviction of the offender, or to a restoration, as owner of the property stolen, or to a portion of the fine or penalty inflicted, is not admitted as a valid objection to his competency. By the very statute, conferring a benefit upon a person, who, but for that benefit, would have been a witness, his competency is virtually con- tinued, and he is as much a witness after that benefit, as he would have been before. The case is clear upon grounds of public policy, with a view to the public interest, and because of the principle on which rewards are given. The public has an interest in the suppression of crime, and the convic- tion of criminals ; it is with a view to stir up greater vigi- lance in apprehending, that rewards are given ; and it would defeat the object of the legislature, to narrow the means of conviction, by means of those rewards, and to exclude testi- mony, which otherwise would have been admissible.^ The distinction between these excepted cases, and those which fall under the general rule, is, that in the latter, the benefit resulting to the witness is created chiefly for his own sake, and not for public purposes. Such is the case of certain summary convictions heretofore mentioned.^ But where it) is plain, that the infliction of a fine or penalty is intended as') a punishment, in furtberance of public justice, rather than as an indemnity to the party injured, and that the detection and conviction of the offender are the objects of the legisla- ture, the case will be within the exception, and the person benefited by the conviction will, notwithstanding his interest, be competent.^ If the reward to which the witness will be 1 Eex V. Williams, 9 B. & C. 549, 556, per Bayley, J. See also 1 Gilb. Evid. by Lofft, 245-250. 2 Supra, § 403. 3 Kex V. Williams, 9 B. & C. 549, 560, per Bayley, J. See also the case of the Rioters, 1 Leach. Cr. Cas. 353, note (a), where the general question of the admissibility of witnesses, to whom a reward was offered by the gov- ernment, being submitted to tiie twelve Judges, was resolved in the affirma- tive. McNally's Evid. p. 61, Rule 12 ; United States v. Murpliy, 16 Peters, 568 LAW OF EVIDENCE. [PAET III. entitled has been offered by a private individual, the rule is the same, the witness being still competent ; but the princi- ple on which it stands is different ; namely, this, that the public have an interest upon public grounds, in the testimony of every person who knows anything as to a crime ; and that nothing which private individuals can do will take away the public right.^ The interest, also, of the witness is con- tingent ; and, after all, he may not become entitled to the reward. § 413. The reason of this exception extends to, and accord- ingly it has been held to include, the cases where, instead of a pecuniary reward, a pa/rdon or exemption from prosecution is offered by statute' to any person participating in a partic- ular offence, provided another of the parties should be con- victed upon his evidence. In such cases, Lord Elienborough remarked, that the statute gave a parliamentary capacitation to the witness, notwithstanding his interest in the cause ; for it was not probable that the legislature would intend to dis- charge one offender, upon his discovering another, so that the latter might be convicted without intending that the discov- erer should be a competent witness.^ § 414. And in like nlanner, where the witness will directly derive any other benefit from the conviction of the offender, he is still a competent witness for the government, in the cases already mentioned. Formerly, indeed, it was held that the person whose name was alleged to be forged, was not admissible, as a witness against the prisoner, on an indict- ment for the forgery, upon the notion that the prosecution was in the nature of a proceeding in rem, and that the conviction K. 203 ; United States v. Wilson, 1 Baldw. 99 ; Commonwealth v. Moulton, 9 Mass. 30 ; Rex v. Teasdale, 3 Esp. 68, and the cases cited in Mr. Day's note; Salisbury t'. Connecticut, 6 Conn. 101. 1 9 B. & C: 556, per Bayley, J. 2 Heward w. 'Shipley, 4 East, 180, 183. See also Rex v. Rudd, 1 Leach, Cr. Cas. 151, 156-158; Bush v. Railing, Sayer, 289; Mead w. Robinson, Willes, 422 ; Sutton v. Bishop, 4 Burr. 2283. CHAP. II.] COMPETENCY OE WITNESSES. 669 warranted a judicial cancellation of the instrument. And the prosecutor in an indictment for perjury has been thought incompetent, where he had a suit pending, in which the per- son prosecuted was a material witness against him, or was defendant against him in a suit in equity, in which his answer might be evidence. But this opinion as to cases of perjury has since been exploded ; and the party is, in all such cases, held admissible as a witness,' his credibility being left to the Jury. For wherever the party offers as evidence, even to a collateral point, a record which has been obtained on his own testimony, it is not admitted; and moreover, the record in a criminal prosecution is generally not evidence of the facts in a civil suit, the parties not being the same.^ And as to the person whose name has been forged, the un- soundness of the rule, by which he was held incompetent, was tacitly conceded in several of the more recent cases, which were held not to be within the rule ; anA at length it was repealed in England by an express statute,^ which ren- ders the party' injured a competent witness in- all criminal prosecutions for forgery. In America, though in some of the earlier cases, the old English rule of exclusion was followed, yet the weight of authority, including the later decisions, is quite the other way, and the witness is now almost universally held admissible.-^ 1 1 Gilb. Evid. by Lofft, pp. 33, 34 ; Bull. N. P. 232, 245 ; Rex v. Boston, 4 East, 572 ; Abrahams v. Bunn, 4 Burr. 2261. See further, infra, § 637. 2 9 Geo. 4, c. 32. 3 Kespublica v. Keating, 1 Ball. HO; Pennsylvania v. Farrel, Addis. 246; The People v. Howell, 4 Johns. 296, 302; The People v. Dean, 6 Cowen, 27 ; Commonwealth v. Frost, 5 Mass. 53 ; Commonwealth v. Waite, Id. 261; The State v. Stanton, 1 Iredell, 424; Simmons v. The State, 7 Ham. 116. Lord Denman is reported to have ruled, at nisi prius, that where the prosecutor, in an indictment for perjury, expected that the prisoner would be called as a witness against him in a civil action about to be tried, he was incompetent as a witness to support the indictment. Rex V. Hulme, 7 C. & P. 8. But qucere, and see Rex v. Boston, 4 East, 572 • Supra, § 362. In several of the United Stages, the party injured, or intended to be injured, or entitled to satisfaction for the injury, or liable to pay the costs of the prosecution, is by statute made a competent vritness 48* 570 LAW OF EVIDENCE. [PART III. § 415. The second class of cases, in which the general rule of incompetency by reason of interest does not apply, con- sists of exceptions created by express statutes, and which otherwise would not fall within the reason of the first excep- tion. Of this sort are cases, where the informer and prose- cutor, in divers summary convictions and trials for petty offences, is, by the statutes of different States, expressly made a competent witness, notwithstanding his interest in the fine or forfeiture ; but of which the plan of this Treatise does not require a particular enumeration. § 416. The third class of cases, excepted out of the general rule, is that of agents, carriers, factors, brokers, and other servants, when offered to prove the making of contracts, the receipt or payment of money, the receipt or delivery of goods and other acts done within the scope of their employment. This exception has its foundation in public convenience and necessity ; ^ for otherwise, affairs of daily and ordinary occurrence could not be proved, and the freeddm of trade and commercial intercourse would be inconveniently- restrained. And it extends, in principle, to every species of agency or intervention, by which business is transacted ; unless the case is overborne by some other rule. Thus, where the acceptor of a bill of exchange was also the agent of the upon a criminal prosecution for the oifence. See Missouri Rev. Stat. 1845, ch. 138, § 22 ; Illinois Kev. Stat. 1833, Crim. Code, §§ 154, 169, pp. 208, 212 ; California Kev. Stat. 1850, ch. 99, § 13. In New Hampshire, no person is disqualified as a witness in a criminal pAsecution by reason of interest, " except the respondent." Rev. Stat. 1842, ch. 225, § 17. As to the mode of examining- the prosecutor, in a trial for forgery, see post, Vol. 3, § 106, n. 1 Bull. N. P. 289 ; 10 B. & C. 864, per Parke, J. ; Benjamin v. Porteus, 2 H. Bl. 591 ; Mathews v. Haydon, 2 Esp. 509. This necessity, says Mr. Evans, is that which arises from the general state and order of society, and not that which is merely founded on the accidental want or failure of evi- dence in the particular case. Poth. on Obi. by Evans, App. No. 16, pp. 208, 267. In all the cases of this class, there seems also to be enough of contin- gency in the nature of the interest, to render the witness admissible under the general rule. CHAP. IL] competency OF WITNESSES. 571 defendant, who was both drawer and indorser, he was held incompetent in an action by the indorsee, to prove the terms on which he negotiated the bill to the indorsee, in order to defeat the action, though the facts occurred in the course of his agency for the defendant, for whose use the bill was negotiated ; it being apparent that the witness was inter- ested in the costs of the suit.^ But in cases not thus con- trolled by other rules, the constant course is to admit the witi;iess, notwithstanding his apparent interest in the event of the suit.^ Thus, a porter, a journeyman, or salesman, is admissible to prove the delivery of goods.^ A broker, who has effected a policy, is a competent witness for the assured, to prove any matters connected with the policy ; even though he has an interest in it arising from his lien.* A factor, who sells for the plaintiff, and is to have a poundage on the amount, is a competent witness to prove the contract of sale.^ So, though he is to have for himself all he has bar- gained for beyond a certain amount, he is still a competent witness for the seller.^ A clerk, who has received money, is a competent witness for the party who paid it, to prove the payment, though he is himself liable on the receipt of it.''^ A carrier is admissible for the plaintiff, to prove that he paid a sum of money to the defendant by mistake, in an action to recover it back.^ So of a banker's clerk.® A servant is a witness for his master, in an action against the latter for a penalty, such, for example, as for selling coals without meas- J Edmonds v. Lowe, -8 B. & C. 407. 2 Theobald v. Tregott, 11 Mod'. 262, per Holt, C. J. 3 Bull. N. P. 289 ; 4 T. R. 590 ; Adams v. Davis, 3 Esp. 48. 4 Hunter v. Leathley, 10 B. & C. 858. 5 Dixon V. Cooper, 3 Wils. 40 ; Shepard v. Palmer, 6 Conn. 95 ; Dupeau V. Hyams, 2 McCord, 146 ; Seott o. Wells, 6 Watts & Serg. 357. 6 Benjamin v. Porteus, 2 H. Bl. 590; Caune v. Sagory, 4 Martin, 81. ' Mathews v. Haydon, 2 Esp. 509. [A clerk who paid out the money of his employer ty mistake, has been held to be a competent witness for his employer in any action to recover back the money. Burd u. Boss, 15 Mis. 254.] 8 Barker v. Macrae, 3 Campb. 144. 9 Martin v. Horrell, 1 Stra. 647. 572 LAW OF EVIDENCE. [PART in. ure by the bushel, though the act were done by the servant.^ A carrier's bookkeeper is a competent witness for his master, in an action for not safely carrying goods.^ A shipmaster is a competent witness for the defendant in an action against his owner, to prove the advancement of moneys for the pur- poses of the voyage, even though he gave the plaintiff a bill of exchange on his owner for the amount.^ The cashier or teller of a bank is a competent witness for the bank, to charge the defendant on a promissory note,* or for money lent, or overpaid,^ or obtained from the officer without the security which he should have received ; and even though the officer has given bond to the bank for his official good conduct.^ And an agent is also a competent witness to prove his own authority, if it be by parol.^ § 417. This exception being thus founded upon considera- tions of public necessity and convenience, for the sake of trade and the common usage of business, it is manifest, that it cannot be extended to cases where the witness is called to testify to facts out of the usual and ordinary course of busi- ness, or, to contradict or deny the effect of those acts which he has done as agent. He is safely admitted, in all cases, to prove that he acted according to the directions of his prin- cipal, and within the scope of his duty ; both on the ground of necessity, and because thfc principal can never main- tain an action against him for any act done according to his own directions, whafever may be the result of the 1 E. Ind. Co. V. Gossing, Bull. N. P. 289, per Lee, C. J. 2 Spencer v. Gouldjng, Peake's Gas. 129. 3 Descadillas v. Harris, 8 Gre'enl. 298 ; Milward w. Hallett, 2 Gaines, 77. And see Martineau w. Woodland, 2 G. & P. 65. * Stafford Bank «. Cornell, I N. Hamp. 192. 6 O'Brien o. Louisiana State Bank, 5 Martin, 305, N. S. ; United States Bank v. Johnson, Id. 310. 6 The Franklin Bank v. Freeman, 16 Pick. 535 ; U. S. Bank v. Stearns, 15 Wend. 314. "> Lowber v. Shaw, 5 Mason, 242, per Story, J.; MoGunnagle v. Thorn- ton, 10 S. & R. 251 ; Ilderton v. Atkinson, 7 T. R; 480 ; Birt v. Kershaw, 2 East, 458 ; [Gould u. Norfolk Lead Co. 9 Gush. 338.] CHAP. II.] COMPETENCY OF WITNESSES. 573 suit in which he is called as a witness. But if the cause depends on the question, whether the agent has been guilty of some tortious act, or some negligence in the course of executing the orders of his principal, and in respect of which he would be liable over to the principal, if the latter should fail in the action pending against him, the agent, as we have seen, is not a competent witness for his principal, without a release.^ § 418. In the fourth class of exceptions to the rule of incompetency by reason of interest, regard is paid to the time and manner in which the interest was acquired. It has been laid down in general terms, that where one person becomes entitled to the testimony of another, the latter shall not be rendered incompetent to testify, by reason of any , interest subs_equently acquired in the event of the suit.^ But though the doctrine is not now universally admitted to that extent, yet it is well settled and agreed, that in all cases where the interest has been subsequently created by the fraudulent act of the adverse* party, for the purpose of taking off his testimony, or by any act of mere wantonness, and aside from the ordinary course of business on the part of the witness, he is not thereby rendered incompetent. And where the person was the original witness of the ti-ansaction or agreement between the parties, in whose testimony they both had a common interest, it seems also agreed, that it shall not be in the power either of the witness, or of one of the parties, to deprive the other of his testimony, by reason of any interest subsequently acquired, even though it were • 1 Supra, §§ 394, 395, 396 ; Miller v. Falconer, 1 Campb. 251 ; Theobald V. Tregott, 11 Mod. 262; Gevers v. Mainwaring, 1 Holt's Gas. 139; McBraine v. Fortune, 8 Campb. 317 ; 1 Stark. Evid. 113 ; Fuller a.Whee- lock, 10 Pick. 135, 138; McDowell u. Stimpson, 3 Watts, 129, 135, per* Kennedy, J. 3 See Bent v. Baker, 3 T. R. 27, per Ld. Kenyon, and Ashhurst, J. ; Barlow v. Vowell, Skin. 586, per Ld. Holt ; Cowp. 736 ; Jackson v. Rum- sey, 3 Johns. Caa. 234, 237 ; Supra, § 167 ; [Sabine v. Strong, 6 Met. 670.] 574 LAW OF EVIDENCE. [PART III, acquired without any such intention on the part of the wit- ness or of the party .^ But the question, upon which learned Judges have been divided in opinion is, whether, where the witness was not the agent of both parties, or was not called as a witness of the original agreement or transaction, he ought to be rendered incompetent by reason of an interest subsequently acquired in good faith, and in the ordinary course of business. On this point, it was held by Lord EUenborough, that the pendency of a suit could not prevent third persons from transacting business bond fide with one of the parties ; and that, if an interest in the event of the suit is thereby acquired, the common consequence of law must follow, that the person so interested cannot be examined as a witness for that party, from whose success he will neces- sarily derive an advantage.^ And therefore it was held, that where the defence to an action on a policy of insurance was, that there had been a fraudulent concealment of material facts, an underwriter, who had paid on a promise of repay- ment if the policy should be determined invalid, and who was under no obligation to become a witness for either party, was not a competent witness for another underwriter, who disputed the loss.^ This doctrine has been recognized in the Courts of several of the United States, as founded in good reason ; * but the question being presented to the Supreme Court of the United States, the learned Judges were divided in opinion, and no judgment was given upon 1 Forrester w. Pigou, 3 Campb. 381 ; 1 Stark. Evid. 118; Long v. Bailie, 4 S. &R. 222; 14 Pick. 47; Phelps v. Eiley, 3 Conn. 266, 272; Rex ». Fox, 1 Stra. 652 ; Supra, § 167. 3 Forrester v. Pigou, 3^ Campb. 381 ; 1 M. & S. 9, S. C. ; Hovill v. Ste- phenson, 5 Bing. 493; Supra, § 167. 2 Forrester v. Pigou, 3 Campb. 381 ; 1 M. & S. 9, S. C. •■ * Phelps V. Riley, 3 Conn. 266, 272 ; Eastman v. Winship, 16 Pick. 44, 47 ; Long v. Bailie, 4 Serg. & R. 222 ; The Manchester Iron Manuf. Co. v. Sweeting, 10 Wend. 162. In Maine, the Court seems to have held the wit- ness admissible in all cases, where the party objecting to the witness is himself a party to the agreement by which his interest is acquired. Bur- gess V. Lane, 8 Greenl. 165, 170 ; Supra, § 167. CHAP. II.] COMPBTENCT OF WITNESSES. 575 the point.i If the subsequent interest has been created by the agency of the party producing the witness, he is dis- qualified ; the party having no right to complain of his own act.2 § 419. It may here be added, that where an interested witness does all in his power to divest hirpself of his inter- est, by offering to surrender or release it, which the surren- deree or releasee, even though he be a stranger, refuses to accept, the principle of the rule of exclusion no longer ap- plies, and the witness is held admissible. Thus, in an eject- njent, where the lessors of the plaintiff claimed under a will, against the heir at law, and the executor was called by the plaintiff to prove the sanity of the testator, and was objected to by the defendant, because by the same will he Was dev- isee of the reversion of certain copyhold lands ; to obviate which objection he had surrendered bis estate in the copy- hold lands to the use of the heir at law, but the heir had refused to accept the surrender ; the Court held him a com- petent witness.^ So, if the interest may be removed by the release of one of the parties in the suit, and such party offers to remove it, but the witness refuses, he cannot thereby de- prive the party of his testimony.* § 420. Where the witness, though interested in the event of the cause, is so situated that the event is to him a matter of indifference, he is still a competent witness. This arises where he is eqaaHy interested on both sides of the cause, so that his interest on one side is counterbalanced by his in- terest on the other.^ But if there is a preponderance in the ' ' Winship v. Bank of United States, 5 Peters, 529, 552. 2 Hovill V. Stephenson, 5 Bing. 493 ; Supra, § 167. 3 Goodtitle V. Welford, 1 Doug. 139 ; 5 T. K. 35, per BuUer, J. The legatee in. a will, who has been paid, is considered a competent witness to support the will in a suit at law. Wyndham v. Chetwynd, 1 Burr. 414. 4 1 Phil. Evid. 149. 5 Supra, § 399. See also Cushman v. Loker, 2 Mass. 108 ; Emerson v. Providence Hat Manuf. Co. 12 Mass. 237; Roberts v. Whiting, 16 Mass. 576 LAW OF EVIDENCE. [PART III. amount or value of the interest on one side, this seems, as we have already seen, to render him an interested witness to the amount of the excess, and therefore to disqualify him from testifying on that side.^ Whether the circumstance that the witness has a remedy over against another, to in- demnify him for what he may lose by a judgment against the party calling him, is sufficient to render him competent by equalizing his interest, is not clearly agreed. Where his liability to costs appears from his own testimony alone, and in the same mode it is shown that he has funds in his hands to meet the charge, it is settled that this does not render him incompetent.^ So, where he stated that he was indemnified for the costs, and considered that he had ample security.^ And where, upon this objection being taken to the witness, the party calling him forthwith executed a bond to the ad- verse party, for the payment of all costs, with sureties, whom the council for the obligee admitted to be abundantly respon- sible, but at the same time he refused to receive the bond, the Court held the competency pf the witness to be thereby restored ; observing, however, that if the solvency of the sure- ties had been denied, it might have presented a case of more embarrassment, it being very questionable whether the Judge could determine upon the sufficiency of the obligors,' so as to absolve the witness from liability to costs.* The point 186 ; Rice v. Austin, 17 Mass. 179 ; Prince i: Shepard, 9 Pick. 176 ; Lewis V. Hodgdon, 5 Shepl. 267; [Adams v. Gardiner, 13 B. Mon. 197; Grovernor V. Gee, 19 Ala. 199. Where both parties to a replevin suit claim the prop- erty by purchase from the same vendor, his interest is balanced, and he is a competent witness without a release, to impeach one of the sales. Nute !'. Bryant, 31 Maine, 553.] 1 Supra, §§ 391, 399, and cases there cited. Where the interest of the ■witness is prima facie balanced between the parties, the possibility of a better defence against one than the other will not prevent his being sworn. Stark- weather V. Mathews, 2 Hill, 131. 2 Collins V. McCrummen, 3 Martin, N. S. 166 ; Allen v. Hawks, 13 Pick. 79. 3 Chaffee v. Thomas, 7 Cowen, 368; Contra, Pond v. Hartwell, 17 Pick. 272, per Shaw, C. J. 4 Brandigee v. Hale, 13 Johns. 125 ; Lake v. Auburn, 1 7 Wend. 18, S. P.; Supra, § 392. CHAP. II.] COMPETENCY OF WITNESSES. 577 upon which the authorities seem to be conflicting is where there is merely a right of action over, irrespective of the solvency of the party liable ; the productiveness of the rem- edy, in actual satisfaction, being wholly contingent and uncertain. But in such cases, the weight of authority is against the admissibility of the witness. Thus, in an ac- tion against the sheriff for taking goods, his officer, who made the levy, being called as a witness for the defence, stated upon the^voir dire, that he gave security to the sheriff, and added, that he was indemnified by the creditor, mean- ing that he had his bond of indemnity. But Lord Tenter- den held him not a competent witness ; observing, that if the result of the action were against the sheriff, the witness was liable to a certainty ; and he might never get repaid on his indemnity ; therefore it was his interest to defeat the action.^ So, where the money, with which the surety in a replevin-bond was to be indemnified, had been deposited in the hands of a receiver designated by the Judge, it was held, that this did not restore the competency of the surety as a witness in the cause for the principal ; for the receiver might refuse to pay it over, or become insolvent, or, from some other cause, the remedy over against him might be unproductive.^ The true distinction lies between the case, where the witness must resort to an action for his indemnity, and that in which the money is either subject to the order of the Court, and within its actual control and custody, or is in the witness's own hands. Therefore it has' been laid down by a learned Judge, that where a certain sum of money can be so placed, either with the witness himself, or with the Court, and its 1 Whitehouse v. Atkinson, 3 C. & P. 344 ; Jewett v. Adams, 8 Grreeul. 30; Paine v, Hussey, 5 Shepl. 274. 2 Wallace v. Twyman, 3 J. J. Marsh. 459-461. See also Owen v. Mann, 2 Day, R. 399, 404; Brown v. Lynch, 1 Paige, 147, 157; Allen v. Hawks, 13 Pick. 85, per Shaw, C. J.; Schillenger v. McCann, 6 Greenl. 364; Kendall v. Field, 2 Shepl. 30 ; Shelby v. Smith, 2 A. K. Marsh. 504. The cases in which a mere remedy over seems to have been thought sufficient to equalize the interest of the witness, are Martlneau v. Woodland, 2 C. & P. 65 ; Banks v. Kain, Id. 597; Gregory v. Dodge, 14 Wend. 593. VOL. I. 49 578 LAW OF EVIDENCE. [PART III. officers, under a proper rule directing and controlling its ap- plication according to the event, as that the interest creating the disability may be met and extinguished before the wit- ness is or can be damnified, it shall be considered as bal- ancing or extinguishing that interest, so as to restore the competency of the witness.' § 421. In regard to the time of taking the objection to the competency of a witness, on the ground of interest, it is obvious that, from the preliminary nature of the objection, it ought in general to be taken before the witness is examined in chief. If the party is aware of the existence of the inter- est, he will not be permitted to examine the witness, and afterwards to object to his competency, if he should dislike his testimony. He has his election, to admit an interested person to testify against him, or not ; but in this, as in all other cases, the election must be made as soon as the oppor- tunity to make it is presented ; and failing to make it at that time, he is presumed to have waived it forever.^ But he is not prevented from taking the objection at any time during the trial, provided it is taken as soon as the interest is discovered.^ Thus, if discovered during the examination in chief by the plaintiff, it is not too late for the defendant to take the objection.* But if it is not discovered until after the trial is concluded, a new trial will not, for that cause alone, be granted ; ^ unless the interest was known and con- 1 Pond V. Hartwell, 17 Pick. 269, 272, per Shaw, C. J. 8 Donelson v. Taylor, 8 Pick. 390, 392 ; Belcher v. Magnay, 1 New Pr. Gas. 110; [Snow v. Batohelder, 8 Cush.'SlS.] 3 Stone V. Blackburn, 1 Esp. 87 ; 1 Stark. Evid. 124 ; Shurtleff v. Wil- lard, 19 Pick. 202. Where a party has been fully apprised of the grounds' of a witness's incompetency by the opening speech of counsel, or the exam- ination in chief of the witness, doubts have been entertained at nisi prius, whether an objection to the competency of a witness can be postponed. 1 Phil. Ev. 154, note (3). 4 Jacobs V. Laybourn, 11 M. & W. 685. And see Yardley v. Arnold, 10 M. & W. 141 ; 6 Jur. 718. 5 Turner v. Pearte, 1 T. R. 717 ; Jackson v. Jackson, 5 Cowen, 173. CHAP. II.] COMPETENCY OF WITNESSES. 579 cealed by the party producing the witness.^ The rule on this subject, in criminal and civil cases, is the same.^ Formerly, it was deemed necessary to take the objection to the com- petency of a witness on the voir dire ; and if once sworn in chief, he could not afterwards be objected to, on the ground of interest. But the strictness of this rule is relaxed; and the objection is now usually taken after he is sworn in chief, but previous to his direct examination. It is in the discre- tion of the Judge to permit the adverse party to cross-examine the witness, as to his interest, after he has been examined in chief; but the usual course is not to allow questions to be asked upon the cross-examination, which properly belong only to an examination upon the voir dire? But if, notwith- standing every ineffectual endeavor to exclude the witness on the ground of incompetency, it afterwards should appear incidentally, in the course of the trial, that the witness is interested, his testimony will be stricken out, and the Jury will be instructed wholly to disregard it.* The rule in Equity 1 Niles V. Braekett, 15 Mass. 378. 2 Commonwealth v. Green, 17 Mass. 538 ; Roscoe's Crim. Evid. 124. 3 Howell V. Lock, 2 Campb. 14 ; Odiorne v. Winkley, 2 Gallis. 51 ; Peri- gal V. Nicholson, 1 Wightw. 64. The objection that the witness is the real plaintiff', ought to be taken on the voir dire. Dewdney v. Palmer, 4 M. & W. 664; 7 Dowl. 177, S. C. 4 Davis I). Barr, 9 S. & E. 137 ; Schillenger v. McCann, 6 Greenl. 864 ; Fisher v. Willard, 13 Mass. 379 ; Evans v. Eaton, 1 Peters, C. 0. R. 338 ; Butler V. Tufts, 1 Shepl. 302 ; Stout v. Wood, 1 Blackf. 71 ; Mitchell .-. Mitchell, 11 G. & J. 388. The same rule seems applicable to all the in- struments of evidence, whether oral or written. Scribner v. McLaughlin, 1 Allen, 379 ; and see Swift v. Dean, 6 Johns. 523, 536 ; Perigal v. Nichol- son, Wightw. 63 ; Howell v. Look, 2 Campb. 64 ; Needham v. Smith, 2 Vern. 464. In one case, however, where the examination of a witness was concluded, and he was dismissed from the box, but was afterwards re- called by the Judge, for the purpose of asking him a question, it was ruled by Gibbs, C. J., that it was then too late to object to his competency. Beeching v. Gower, 1 Holt's Cas. 313 ; and see Heely v. Barnes, 4 Denio, 73. And in Chancery it is held, that where a witness has been cross-examined by a party, with full knowledge of an objection to his competency, the Court will not allow the objection to be taken at the hearing. Flagg v. Mann, 2 Sumn. 487. 580 LAW OP EVIDENCE. [PART III. is the same as at Law ; ^ and the principle applies with equal force to testimony given in a deposition in writing, and to an oral examination in Court. In either case, the better opinion seems to be, that if the objection is taken as soon as may be after the interest is discovered, it will be heard ; but after the party is in mord, it comes too late.^ One reason for requiring the objection to be made thus early is, that the other party may have opportunity to remove it by a release ; which is always allowed to be done, when the objection is taken at any time before the examination is completed.^ It is also to be noted as a rule, applicable to all objections to the reception of evidence, that the ground of objection must be distinctly stated at the time, or it will be, held vague and nugatory.* § 422. Where the objection to the competency of the wit- ness arises from his own examination, he may be further 1 Swift V. Dean, 6 Johns. 523, 538; Needham v. Smith, 2 Vern. 463; Vaughan u. Worrall, 2 Swanst. 400. In this case, Lord Eldon said, that no attention could be given to the evidence, though the interest were not dis- covered until the last question, after he has been " cross-examined to the bone." See Gresley on Evid. 234-236 ; Rogers v. Dibble, 3 Paige, 238 ; Town V. Needham, Id. 545, 552 ; flarrison v. Courtauld, 1 Jiuss. & M. 428; Moorhouse p. De Passou, G. Cooper, Ch. Cas. 300; 19 Ves. 433, S. C. See also Jacobs v. Laybourn, 7 Jur. 562. 2 Donelson v. Taylor, 8 Pick. 390. Where the testimony is by deposi- tion, the objection, if the interest is known, ought regularly to be taken in limine ; and the cross-examination should be made de bene esse, under protest, or with an express reservation of the right of objection at the trial ; unless the interest of the witness is developed incidentally, in his testi- mony to the merits. But the practice on this point admits of considerar ble latitude, in the discretion of the Judge. United States v. One Case of Hair Pencils, 1 Paine, 400 ; Talbot v. Clark, 8 Pick. 51 ; Smith ii. Spar- row, 11 Jur. 126; The Mohawk Bank v. Atwater, 2 Paige, 54; Ogle v. Pelaski, 1 Holt's Cas. 485 ; 2 Tidd's Pr. 812. As to the mode of taking the objection in Chancery, see 1 HofFm. Chan. 489; Gass D. Stinson, 3 Sumn. 605. 3 Tallman v. Dutoher, 7 Wend. 180; Dqty u. Wilson, 14 Johns. 378; Wake V. Lock, 5 C. & P. 454. 4 Camden v. Doremus, 3 Howard, S. C. Rep. 515, 630; Elwood v. Dei- fendorf, 5 Barb. S. C. R. 398 ; Carr v. Gale, Daveis, R. 837. CHAP. II.] COMPETENCY OF WITNESSES. 581 interrogated to facts tending to remove the objection, though the testimony might, on other grounds, be inadmissible. When the whole ground of the objection comes from himself only, what he says must be taken together as he says it.^ Thus, where his interest appears, from his own testimony, to arise from a written instrument, which is not produced, he may a,lso testify to the contents of it ; but if he produces the instrument, it must speak for itself.^ So, where the witness for a chartered company stated that he had been a member, he was permitted also to testify that he had subsequently been disfranchised.^ So, where a witness called by an ad- ministrator, testified that he was one of the heirs at law, he was also permitted to testify that he had released all his interest in the estate.* And genera^y, a witness upon an examination in Court as to his interest, may testify to the contents of any contracts, records, or documents not produced, affecting the question of his interest.^ But if the testimony of the witness is taken upon interrogatories in writing, pre- viously filed and served on the adverse party, who objects to his competency on the ground of interest, which the witness confesses, but testifies that it has been released ; the release must be produced at the trial, that the Court may judge of it.6 § 423. The mode of proving the interest of a witness is 1 Abrahams o. Bunn, 4 Burr. 2256, per Ld. Mansfield ; Bank of Utica v. Mestereau, 3 Barb. Ch. R. 528. 2 Butler V. Carver, 2 Stark. B,. 433. See also Rex v. Gisburn, 15 East, 67. 3 Butcher's Company v. Jones, 1 Esp. 160. And see Botham v. Swing- ler, Peake's Cas. 218. * Ingraham v. Dade, Lond. Sittings after Mich. T. 1817 ; 1 C. P. 234, n.; Wandless v. Cawthorne, B. K. Guildhall, 1829 ; 1 M. & M. 321, n. 5 Miller v. The Mariners' Church, 7 Greenl. 51 ; Fifield u. Smith, 8 Shepl. 383 ; Sewell v. Stubbs, 1 C. & P. 73 ; Quarterman v. Cox, 8 C. & P. 97 ; Luniss v. Row, 2 P. & D. 538 ; Hays v. Richardson, 1 Gill & J. 366 ; Stebbins v. Sapkett, 5 Conn. 258 ; Baxter v. Rodman, 3 Pick. 435. The case of Goodhay v. Hendry, 1 Mo. & M. 319, apparently contra, is opposed by Carlisle v. Eddy, 1 C. & P. 234, and by Wandless v. Cawthorne, 1 Mo. & M. 321, n. 6 Southard v. Wilson, 8 Shepl. 494 ; Hobart v. Bartlett, 5 Shepl. 429. 49* 682 LAW OF EVIDENCE. [PART III. either by his own examination, or by evidence aliunde. But whether the election of one of these modes will preclude the party from afterwards resorting to the other, is not clearly settled by the authorities. If the evidence offered aliunde to prove the interest is rejected, as inadmissible, the witness may then be examined on the voir dire} And if the witness on the voir dire, states that he does not know, or leaves it doubtful whether he is interested or not, his interest may be shown by other evidence.^ It has also been held, that a resort to one of these modes to prove the interest of the wit- ness on one ground, does not preclude a resort to the other mode, to prove the interest on another ground.^ And where the objection to the competency of the witness is founded upon the evidence, already adduced by the party offering him, this has been adjudged not to be such an election of the mode of proof, as to preclude the objector from the right to examine the witness on the voir dire^ But, subject to these modifications, the rule recognized and adopted by the gen- eral current of authorities is, that where the objecting party has undertaken to prove the interest of the witness, by inter- rogating him upon the voir dire, he shall not, upon failure of that mode, resort to the other to prove facts, the existence of which was known when the witness was interrogated.^ The 1 Main v. Newson, Anthon's Cas. 13. But a -witness cannot be excluded by proof of his own admission that he was interested in the suit. Bates v. Kyland, 6 Alabama E. 668 ; Pierce v. Chase, 8 Mass. 487, 488 ; Common- wealth V. Waite, 5 Mass. 261 ; George v. Stubbs, 13 Shepl. 243. 2 Shannon v. The Commonwealth, 8 S. & R. 444 ; Galbraith v. Galbraith, 6 Watts, 112 ; Bank of Columbia v. Magruder, 6 Har. & J. 1 72. 3 Stebbins v. Sackett, 5 Conn. 258. 4 Bridge v. Wellington, 1 Mass. 221, 222. 5 In the old books, including the earlier editions of Mr. Starkie's and Mr. Phillips's Treatises on Evidence, the rule is clearly laid down, that after an examination upon the voir dire, no other mode of proof can in any case be resorted to ; excepting only the case where the interest was developed in the course of trial of the issue. But in the last editions of those works it is said, that " if the witness discharged himself on the voir dire, the party who objects, may still support his objection by evidence ; " but no authority is cited for the position. 1 Stark. Evid. 124 ; Phil. & Am. on Evid. 149 ; 1 Phil. Evid. 154. Mr. Starkie had previoasly added these words: "as CHAP. II.] COMPETENCY OV WITNESSES. 583 party appealing to the conscience of the witness, offers him to the Court as a credible witness ; and it is contrary to the spirit of the law of evidence, to permit him afterwards to say, that the witness is not worthy to be believed. It would also violate another rule, by its tendency to raise collateral issues. Nor is it deemed reasonable to permit a party to sport with the conscience of a witness, when. he has other proof of his interest. But if evidence of his interest has been given aliunde, it is not proper to examine the witness, -in order to explain it away.^ § 424. A witness is said to be examined upon the voir dire., when he is sworn and examined as to the fact whether he is not a party interested in the cause.^ And though this term was formerly and more strictly applied only to^the case where the witness was sworn to make true answers to such ques- tions as.the Court might put to him, and before he was sworn in chief, yet it is now extended to the preliminary examina- tion to his interest, whatever may have been the. form of the oath under which the inquiry is made. part of his own case ; " (see 2 Stark. Evid. p. 756, 1st ed.) and with this qualification the remark is supported by authority, and is correct in principle. The question of competency is a collateral question ; and the rule is, that| when a witness is asked a question upon a collateral point, his answer isj final, and cannot be contradicted ; that is, no collateral evidence is admissi-\ ble for that purpose. Harris u. Tippett, 2 Campb. 637 ; Philadelphia & Tren- ton Co. u. Stimpson, 14 Peters, 448, 461 ; Harris v. Wilson, 7 Wend. 57 ; Odiorne v. Winkley, 2 Gallis, 53 ; Rex v. Watson, 2 Stark. R. 149-157. But if the evidence, subsequently given upon the matter in issue, should also prove the witness interested, his testimony may well be stricken out, without violating any rule. Brockbank v. Anderson, 7 Man. & Gr. 295, 313. The American Courts have followed the old English rule, as stated in the text. Butler v. Butler, 3 Day, R. 214 ; Stebbins v. Sackett, 5 Conn. 258, 261 ; Chance v. Hine, 6 Conn. 231 ; Welden v. Buck, Anthon's Cas. 9 ; Chatfield w. Lathrop, 6 Pick. 418; Evans v. Eaton, 1 Peters, C. C. R. 322; Stewart v. Locke, 33 Maine, 87. 1 Mott u. Hicks, 1 Cowen, 513; Evans v. Gray, 1 Martin, N. S. 709. 2 Termes de la Ley, Verb. Yoyer dire. And see Jacobs v. Laybourn, 11 M. & W. 685, where the nature and use of an examination upon the voir dire are stated and explained by Ld. Abinger, C. B. 584 LAW OF EVIDENCE. [PART III. § 425. The question of interest, though involving facts, is still a preliminary question, preceding, in its nature, the admission of the testimony to the .Jury. It is therefore to be determined by the Court alone, it being the province of the Judge and not of the Jury, in the first instance, to pass upon its efficiency .1 If, however, the question of fact in any prelim- inary inquiry, such, for instance, as the proof of an instru- ment by subscribing witnesses, is decided by the Judge, and the same question of "fact afterwards recurs in the course of the trial upon the merits, the Jury are not precluded by the decision of the Judge, but may, if they are satisfied upon the evidence, find the fact the other way.^ In determining the question of interest, where the evidence is derived aliynde, and it depends upon the decision of intricate questions of fact, the Judge may, in his discretion, take the opinion of the Jury upon them.^ And if a witness, being examined on the voir dire, testifies to facts tending to prove that he is not in- terested, and is thereupon admitted to testify ; after which opposing evidence is introduced, to the same facts, which are thus left in doubt, and the facts are material to the issue ; the evidence must be weighed by the Jury, and if they there- upon believe the witness to be interested, they must lay his testimony out of the case.* § 426. The competency of a witness, disquafified by inter- est, may always be restored by a proper release.^ If it con- !• Harris v. Wilson, 7 Wend. 57 ; Supra, § 49. 2 Koss V. Gould, 5 Greenl. 204. 3 See supra, § 49. 4 Walker v. Sawyer, 13 N. Hamp. R. 191. 5 Where the witness produces the release from his own possession, as part of his testimony, in answer to a question put to him, its execution needs not to be proved by the subscribing witnesses ; but it is to be taken as part of his testimony. If the question is asked by the party calling the witness, who thereupon produce the release, the party is estopped to deny that it is a valid and true release. But where the release is produced or set up by the party to the suit, to establish his own title, he must prove its execution by the subscribing witness. Citizens' Bank v. Nantucket Steam- boat Co. 2 Story, K. 16, 42. And see Morris v. Thornton, 8 T. E. SOS j CHAP. II.] COMPETENCY OF WITNESSES. 585 sists in an interest vested in himself, he may divest himself of it by a release, or other proper conveyance. If it consists in a liability over, whether to the party calling him, or to another person, it may be released' by the person to whom he is liable. A general release of all actions and causes of action for any matter or thing, which has happened previous to the date of the release, will discharge the witness from all liability consequent upon the event of a suit then existing. Such a release from the drawer to the acceptor of a bill of exchange, was therefore held sufficient to render him a com- petent witness for the drawer, in an action then pending by the payee against him ; for the transaction was already passed, which was to lay the foundation of the future liabil- ity ; and upon all such transactions and inchoate rights such a release will operate.^ A release, to qualify a witness, must be given before the testimony is closed, or it comes too late. But if the trial is not over, the Court will permit the witness to be reexamined, after he is released ; and it will generally be sufficient to ask him if his testimony, already given, is true ; the circumstances under which it has been given going only to the credibility.^ § 427. As to the person by whom the release should bp given, it is obvious that it must be by the party holding the interest to be released, or by some person duly authorized in his behalf. A release of a bond debt by one of several obligees, or to one of several obligors, will operate as to Jackson v. Pratt, 10 Johns. 381 ; Carlisle v. Eady, 1 C. & P. 234 ; Ingram V. Dada, Ibid, note ; Goodhay v. Hendry, 1 Mood. & Malk. 319. See also Southard v. Wilson, 8 Shepl. 494 ; Hall v. Steamboat Co. 13 Conn. 319. [The instrument of release need not be under seal. Dunham v. Branch, 5 Cush. 558, 560. A technical release, to make an interested witness com- petent, must be under seal. Governor v. Daily, 14 Ala. 469. A receipt in full of all demands, not under seal, does not render a witness competent. Dennett v. Lamson, 30 Maine, 223.] 1 Scott V. Lifford, 1 Campt. 249, 250 ; Cartwright v. Williams, 2 Stark. R. 340. 2 Wake V. Lock, 5 C. & P. 454 ; Tallman v. Dutcher, 7 Wend. 180 ; Doty V. Wilson, 14 Johns. 378. And see Clark v. Carter, 4 Moor, 207. 586 LAW OF EVIDENCE. [PART III. them all.^ So, where several had agreed to bear the ex- pense of a joint undertaking, in preferring a petition to Parliament, and an action was brought against one of them, another of the contractors was held a competent witness for the defendant, after being released by him ; for the event of the suit could at most only render him liable to the defend- ant for his ^contributory share.^ But if there is a joint fund or property to be directly affected by the result, the same reason would not decisively apply ; and some act of divest- ment, on the part of the witness himself, would be neces- sary.^ Thus, in an action on a charter-party, a joint-owner with the plaintiff, though not a registered owner, is not a competent witness for the plaintiff, unless cross releases are executed between them.* A release by an infant is gener- ally sufEciept for this purpose ; for it may be only voidable, and not void ; in which case, a stranger shall not object to it.^ But a release by a guardian ad litem,^ or by a prochein 1 Co. Lit. 232, a. ; Cheetham v. Ward, 1 B. & P. 630. So, by one of several partners, or joint proprietors, or owners. Whitamore v. Waterhouse, 4 C. & P. 383 ; Hockless v. Mitchell, 4 Esp. 86 ; Bulkley v. Dayton, 14 Johns. 387 ; Haley v. Godfrey, 4 Shepl. 305. But where the interest of the parties to the record is several, a release by one of them only is not suffi- cient. Betts V. Jones, 9 C. & P. 199. [Where the process is in rem against a vessel, to recover the value of goods lost or damaged, the master is an in- terested witness ; but a release from some of the part-owners renders him competent. The Peytona, 2 Curtis, C. C. 21t] 2 Duke V. Pownall, 1 M. & Malk. 430; Ransom v. Keyes, 9 Cowen, 128. So, in other cases of liability to contribution. Bayley v. Osborn, 2 Wend. 527; Robertson v. Smith, 18 Johns. 469; Gibbs v. Bryant, 1 Pick. 118; Ames V. Withington, 3 N. Hamp. 116 ; Carleton v. Witcher, 5 N. Hamp. 196. One of several copartners, not being sued with them, may be ren- dered a competent witness for them by their release. Leflferts v. De Mott, : 21 Wend. 136, (sed vide Cline v. Little, 5 Blackf. 486) ; but qucere, if he ought not also to release to them his interest in the assets of the firm, so far , as they may be affected by the demand in controversy ? lb. 3 Waite V. Merrill, 4 Greeul. 102; Richardson v. Freeman, 6 Greenl. 87; 1 Holt's Cas. 430, note; Anderson v. Brock, 3 Greenl. 243. The heir is rendered a competent witness for the administrator, by releasing to the latter all his interest in the action ; provided it does not appear, that there is any real estate to be affected by the result. Boynton v. Turner, 13 Mass. 391. * Jackson v. Galloway, 8 C. & P. 480. s Rogers v. Berry, 10 Johns. 132 ; Walker v. Ferrin, 4 Verm. 523. 6 Fraser v. Marsh, 2 Stark. R. 41 ; Walker v. Ferrin, ub. sup. CHAP. II.] COMEETENCY OP WITNESSES. 587 amy^ or by an attorney of record,^ is not good. A surety may always render the principal a competent witness for himself, by a release.^ And it seems sufficient, if only the costs are released.^ § 428. Though there are no interests of a disqualifying nature but what may, in some manner, be annihilated,* yet there are some which cannot he reached by a release. Such is the case of one, having a common right, as an inhabitant of a town ; for a release by him, to the other inhabitants, will not render him a competent witness for one of them, to maintain the common right.^ So, where in 'trover, the plain- tiff claimed the chattel by purchase from B., and the defend- ant claimed it under a purchase from W., who had previously bought it from B., it was held that a release to B. from the defendant would not render him a competent witness for the latter ; for the defendant's remedy was not against B., but against W. alone.^ And in the case of a covenant real, run- ning with the land, a release by the covenantee, after he has parted with the estate, is of no avail ; no person but the pres- ent owner being competent to release it.'' Where the action is against the surety of one who has since become bankrupt. 1 Murray v. House, 11 Johns. 464; Walker v. Ferrin, ub. sup. 2 Keed v. Boardman, 20 Pick. 441 ; Harmon v. Arthur, 1 Bail. 83 ; Wil- lard V. Wicktnan, 7 Watts, 292. 3 Ferryman v. Steggal, 5 C. & P. 197. See also Van Shaack v. Stafford, 12 Pick. 565. * In a writ of entry by a mortgagee, the tenant claimed under a deed from the mortgagor, subsequent in date, but prior in registration, and denied notice of the mortgage. To prove that he purchased with notice, the mort- gagor was admitted a competent witness for the mortgagee, the latter having released him from so much of the debt as should not be satisfied by the land mortgaged, and covenanted to resort to the land as the sole fund for payment of the debt. Howard v. Chadbourne, 5 Greenl. 15. 5 Jacobson ». Fountain, 2 Johns. 170; Abby v. Goodrich, 3 Day, 433; Supra, § 405. 6 Radbnrn v. Morris, 4 Bing. 649. * '' Leighton v. Pertins, 2 N. Ramp. 427; Pile v. Benham, 3 Hayw. 176; [Field V. Snell, 4 Cush. 504, 506 ; Clark v. Johnson, 5 Day, 373 ; Cunning- ham, 1 Barb. 399, 405.] 688 LAW OF EVIDENCE. [PAET III. the bankrupt is not rendered a competent witness for the surety, by a release from him alone ; because a judgment against the surety would still give him a right to prove under the commission. The surety ought also to release the assignees from aU claim on the bankrupt's estate, it being vested in them ; and the bankrupt should release his claim to the surplus.! Qq^ a residuary legatee is not rendered a competent witness for the executor, who sues to recover a debt due to the testator, merely by releasing to the executor his claim to that debt ; for, if the action fails, the estate will still be liable for the costs to the plaintiff's attorney, or to the executor. The witness must also release the residue of the estate ; or, the estate must be released from all claim for the costs.^ § 429. It is not necessary that the release be actually deliv- ered by the releasor into the hands of the releasee. It may be deposited in Court, for the use of the absent party.^ Or, it may be delivered to the wife, for the use of the husband.* But in such cases it has been held necessary that the deliv- ery of the release to a third person should be known to the witness at the time of giving his testimony.^ The objection of interest, as before remarked, proceeds on the presumption that it may bias the mind of the witness ; but this presump- 1 Ferryman v. Steggal, 8 Bing. 369. [An insolvent debtor, who has ob- tained his discharge, is a competent witness for the assignee, on his giving a release to the assignee of all claims against him as such assignee. Greene V. Durfee, 6 Gush. 362.] 2 Baker v. Tyrwhitt, 4 Campb. 27. 3 Perry v. Fleming, 2 N. Car. Law Repos. 458 ; Lilly o. Kitzmiller, 1 Yeates, 30 ; Matthews v. Marchant, 3 Dev. & Bat. 40 ; Brown v. Brown, 5 Ala. 508. Or, it may be delivered to the attorney. Stevenson v. Mud- gett, 10 N. Hamp. 308. * Van Deusen v. Frink, 15 Pi6k. 449 ; Peaceable v. Keep, 1 Yeates, 576. 5 Seymour v. Strong, 4 "Hill, R. 225. Whether the belief of the witness as to his interest, or the impression under which he testifies, can go farther than to affect the credibility of his testimony, qucere ; and see supra, §§ 387, 888, 419. CHAP. II.] COMPBTENOY OF WITNESSES. 589 tion is taken away by proof of his having done all in his power to get rid of the interest.^ It has even been held, that where the defendant has suffered an interested witness to be examined, on the undertaking of the plaintiff's attorney to execute a release to him after the trial, which, after a verdict for the plaintiff, he refused to execute, this was no sufficient cause for a new tiial ; for the witness had a remedy on the undertaking.^ But the witness, in such cases, will not be permitted to proceed with his testimony, even while the attorney is preparing or amending the release, without the consent of the adverse party.^ § 430. There are other modes, besides a release, in which the competency of an interested witness may be restored. Some of these modes, to be adopted by the witn^s himself, have already been adverted to ; * namely, where he has as- signed his own interest, or done all in his power to assign it ; or, where he refuses to accept a release tendered to him 'by another. So, where, being a legatee or distributee, he has been fully paid.^ An indorser is made a competent witness for the indorsee, by striking off his name from the back of the note or bill ; but if the bill is drawn in sets, it must appear that his name is erased from each one of the set, even though one of them is missing and is supposed to be lost ; for it may be in the hands of a bond fide holder.^ A guarantor, also, is rendered a competent witness for the cred- itor, by delivering up the letter of guaranty, with permission to destroy it.^ And this may be done by the attorney of the party, his relation as such and the possession of the paper being sufficient to justify a presumption of authority for that purpose.^ The bail or surety of another may be rendered a 1 Goodtitle v. Welford, 1 Doug. 139, 141, per Ashhurst, J. 2 Hemming v. English, 1 Cr. M. & R. 568; 5 Tyrwh. 185, S. C. 3 Doty V. Wilson, 14 Johns. 378. *SM?jra, §419. 5 Clarke v. Gannon, Ky. & M. 31 ; Gebhardt v. Shindle, 15 S. & K. 235. 6 Steinmetz v. Currie, 1 Dall. 269. ■^ Merchants' Bank v. Spicer, 6 Wend. 543. 8 Ibid; Watson v. McLaren, 19 Wend. 557. VOL. I. 50 590 LAW OF EVIDENCE. [PART III. competent witness for him, as we have already seen, by sub- stituting another person in his stead ; which, where the stip- tdation is entered into in any judicial proceeding, as in the case of bail and the like, the Court will order upon motion. The same may be done by depositing in Court a sufficient sum of money ; or, in the case of bail, by a surrender of the body of the principal.^ So, where the liability, which, would have rendered the witness incompetent, is discharged by the operation of law ; as, for example, by the bankrupt or the insolvent laws, or by the statute of limitations.^ Where, in trespass, several justifications are set up in bar, one of which is-a prescriptive or customary right in all the inhabitants of a certain place, one of those inhabitants may be rendered a competent witness for the defendant, by his waving that branch of the defence.^ In trover by a bailee, he may render the bailor a competent witness for him, by agreeing to allow him, at all events, a certain sum for the goods lost,* The assignee of a chose in action, who, having commenced a suit upon it in the name of the assignor, has afterwards sold and transferred his own interest to a stranger, is thereby rendered a competent witness for the plaintiff.^ But the interest which an informer has in a statute penalty, is held not assignable for that purpose.^ So, the interest of a legatee being as- signed, he is thereby rendered competent to prove the will ; though the payment is only secured to him by bond which is not yet due.'' So, a stockholder in any money-corporation 1 Siipra, § 392, note (1) ; Bailey v. Hole, 3 C. & P. 560 ; 1 Mood. & M. 289, 8. C. ; Leggett v. Boyd, 3 Wend. 376; Tompkins v. Curtis, 3 Cowen, 251 ; Grey ;;. Young, 1 Harper, 38 ; Allen v. Hawks, 13 Pick. 79 ; Beckley J). Freeman, 15 Pick. 468; Pearcey y. Fleming, 5 C. & P. 503; Lees v. Smith, 1 M. & Bob. 329 ; Comstook v. Paie, 3 Rob. Louis. R. 440 ; Fraser V. Harding, 3 Kerr, 94. 2 Murray v. Judah, 6 Cowen, 484 ; Ludlow v. Union Ins. Co. 2 S. & R. 119; United States v. Smith, 4 Day, 121; Quimby v. Wroth, 3 H. & J. 249 ; Murray v. Marsh, 2 Hayw. 200. 3 Prewitt V. Tilly, 1 C. & P. 140. * Maine Stage Co. v. Longley, 2 Shepl. 444. 5 Soulden v. Van Rensselaer, 9 Wend. 293. 6 Commonwealth v. Hargesheimer, 1 Ashm. 413. 7 Mcllroy v. Mcllroy, 1 Rawle, 423. CHAP. II.] COMPETENCY OE WITNESSES. 591 may be rendered a competent witness for the corporation, by a transfer of his stock, either to the company or to a stranger ; ^ven though he intends to repossess it, and has assigned it merely to qualify himself to testify ; provided there is no agreement between him and the assignee or purchaser for a reconveyance.^ Where a witness was liable to the plain- tiff's attorney for the costs, and the attorney had prepared a release, in order to restore his competency in case it should be questioned, but no objection being made to the witness, he was examined for the plaintiff without a release, this was considered as a gross imposition upon the Court ; and in a subsequent action by the attorney against the witness, for his costs, he was nonsuited.^ These examples are deemed sufficient for the purpose of illustrating this method of restor- ing the competency of a witness disqualified by interest. 1 Gilbert v. Manchester Iron Co. 11 Wend. 627; Utica Ins. Co. v. Cad- well, 3 Wend. 296 ; Stall v. The Catskill Bank, 18 Wend. 466 ; Bank of Utica V. Sraalley, 2 Cowen, 770; Bell v. Hull, &o. Railway Co. 6 M. & W. 701 ; Illinois Ins. Co. v. Marseilles Co. 1 Gilm. 236 ; Union Bank v. Owen, 4 Humph. 388. 2 Williams v. Goodwin, 11 Moore, 342. 592 LAW OP EVIDENCE. [PABT III. CHAPTER III. OF THE EXAMINATION OP WITNESSES. § 431. Having thus treated of the means of procuring the attendance of witnesses, and of their competency, ■we come now to consider the manner in which they are>to be exam- ined. And here, in the first place, it is to be observed, that the subject lies chiefly in the discretion of the Judge, before whom the cause is tried, it being from its very nature suscep- tible of but few positive and stringent rules. The great object is to elicit the truth from the witness ; but the charac- ter, intelligence, moral courage, bias, memory, and other cir- cumstances of witYiesses are so various, as to require almost equal variety in the manner of interrogation, and-the degree of its intensity, to attain that end. This manner and degree, therefore, as well as the other circumstances of the trial, must necessarily be left somewhat at large, subject to the few general rules which we shall proceed to state ; remark- ing only, that wherever any matter is left to the discretion of one Judge, his decision is .pot subject to be reversed or revised by another. § 432. If the Judge deems it essential to the discovery of truth, that the witnesses should be examined out of the hear- ing of each other, he will so order it. This order, upon the motion or suggestion of either party, is rarely withheld ; but, by the weight of authority, the party does not seem entitled to it as a matter of right.^ The course in such cases is 1 In Rex V. Cooke, 13 Howell, St. Tr. 348, it was declared by Lord C. J. Treby to be grantable of favor only, at the discretion of the Court, and this opinion was followed by Ld. C. J. Holt, in Rex o. Vaughan, Id. 494, and by Sir Michael Foster, in Rex v. Goodere, 17 Howell, St. Tr. 1015. See also CHAP. III.] EXAMINATION OF WITNESSES. 593 either to require the names of the witnesses to be stated by the counsel of the respective parties, by whom they were summoned, and to direct the sheriff to keep them in a sepa- rate room until they are called for ; or, more usually, to cause them to withdraw, by an order from the bench, accompanied with notice, that if they remain they will not be examined. In the latter case, if a' witness remains in Court in violation of the order even by mistake, it is in the discretion of the Judge, whether or not he shall be examined.^ The course formerly was to exclude him ; and this is still the inflexible rule in the Exchequer in revenue cases, in order to prevent any imputation of unfairness in proceedings between the crown and the subject. But with this exception, the rule in 1 Stark. Evid. 163 ; Beamon v. Ellice, 4 C. & P. 585, per Taunton, J.; The State V. Sparrow, 3 Murphy, R. 487. The rule is stated by Fortescue, in these words : Et si necessitas exegerit, dividantur testes hujusmodi, donee ipsi deposqerint quicquid velint, ita quod dictum unius non doeebit aut oou- citavit eorum alium ad consimiliter testificandum. Fortesc. De Laud. Leg. Angl. c. 26. This, however, does not necessarily exclude the right of the Court to determine whether there is any need of a separate examination. Mr. Phillips states it only as the uniform course of practice, that " the Court, on the application of counsel, .will order the witnesses on both sides to with- draw.'' 2 Phil. Evid. 395. And see, accordingly, Williams v. HuUie, 1 Sid. 131 ; Swift on Evid. 512. In Taylor v. Lawson, 3 C. & P. 543, Best, C. J., regretted that the rule of Parliamentary practice, which excludes all wit- nesses but the one under examination, was not universally adopted. But in Southey v. Nash, 7 C. & P. 632, Alderson, B., expressly recognized it as " the right of either party, at any moment, to require that the unexamined witnesses shall leave the Court." It is a general rule in the Scotch Law, that witnesses should be examined separately ; and it is founded on the importance of having the story of each witness fresh from his own recollec- tion, unmingled with the impression received from hearing the testimony of others in the same case. To this rule, an exception is aljowed in the case of medical witnesses ; but even those, on matters of medical opinion, are examined apart from each other. See Alison's Practice, pp. 542-545 ; Tait on Evid. 420; [Nelson v. State, 2 Swan. 237; Benaway v. Conyne, 3 Chand. 214.] 1 It has, however, been held, that if the witness remains in Court, in dis- obedience of its order, his testimony cannot, on that ground alone, be ex- cluded ; but that it is matter for observation on his evidence. Chandler v. Home, 2 M. & Rob. 423. As to the rule in the text, see The State ■;. Brookshire, 2 Ala. 303, ace. 50* 594 LAW OF EVIDENCE. [PART III. criminal and civil cases is the same.^ But an attorney in the cause, whose personal attendance in Court is necessary, is usually excepted from the order to withdraw.^ The right of excluding witnesses for disobedience to such an order, though well established, is rarely exercised in America ;3 but the witness is punishable for the contempt. § 433. When a witness has been duly sworn, and his competency is settled, if objected to,* he is first examined by the party producing him ; which is called his direct examination. He is afterwards examined to the same mat- ters by the adverse party ; which is called his cross-exami- nation. These examinations are conducted orally in open Court, under the regulation and order of the Judge, and in his presence and that of the Jury, and of the parties and their counsel. § 434. In the direct examination of a witness, it is not allowed to put to him what are termed leading questions; 1 Attorney-Gen. v. Bulpit, 9 Price, 4 ; Parker v. Mc William, 6 Bing. 683 ; 4 Moore & Payne, 480, S. C. ; Thomas v. David, 7 C. & P. 350 ; Rex v. Col-. ley, 1 M. & Malk. 329; Beamon v. EUice, 4 C. & P. 585, and note (b) ; [McLean v. State, 16 Ala. 672.] 8 Everett v. Lowdham, 5 C. & P. 91 ; Pomeroy v. Badderley, Ry. & M. 430. [So it is ordinarily with experts, and vritnesses called as to character, &c. And in those States in which parties are made competent witnesses, it would seem that the order of exclusion should not include them; and it is the better practice as a general rule in those States, so far as it is known ^o be established, when the witnesses in a case are ordered to withdraw, to ex- cept parties from the order.] 3 See Anon. 1 Hill, 254, 256 ; The State v. Sparrow, 3 Murph. 487 ; The State V. Brookshire, 2 Ala. 303; Dyer v. Morris, 4 Mis. 214; Keath u. Wil- son, 6 Mis. 435; [Pleasant v. State, 15 Ark. 624; Sartorious v. State, 24 Miss. 602 ; Porter v. State, 2 Carter, 435.] 4 The course in the Scotch CourtsJ after a witness is sworn, is, first to ex- amine him in initialibus, namely, whether he has been instructed what to say, or has received or has been promised any goad deed for what he is to say, or bears any ill-will to the adverse party, or has* any interest in the cause, or concern in conducting it ; together with his age, and whether he is married or not, and the degree of his relationship to the party adducing him. Tait on Evid. 424. CHAP. III.] EXAMINATION OP WITNESSES. 595 that is, questions which suggest to the witness the answer desired.^ The rule is to be understood in a reasonable sense ; for if it were not allowed to approach the points at issue by such questions, the examinations would be most inconveniently protracted. To abridge the proceedings, and bring the witness as soon as possible to the material points on which he is to speak, the counsel may lead him on to that length, and may recapitulate to him the acknowledged facts of the case which have been already established. The rule, therefore, is not applied to that part of the examination, which is merely introductory of that which is material. Questions are also objectionable, as leading, which, embody- ing a material fact, admit of an answer by a simple negative or affirmative. An argumentative or pregnant course of interrogation, is as faulty as the like course in pleading. The interrogatory must not assume facts to have been proved, which have not been proved ; nor, that particular answers have been given, which have not been given.^ The witness, except in certain cases hereafter to be mentioned, is to be examined only to matters of fact within his own knowledge, whether they consist of words or actions ; and to these mat- ters he should in general be plainly, directly, and distinctly interrogated. Inferences or conclusions, which may be drawn from facts, are ordinarily to be drawn- by the Jury alone ; ex- cept where the conclusion is an inference of skill and judg- ment ; in which case it may be drawn by an expert, and testified by him to the Jury.^ § 435. In some cases however, leading questions are per- mitted, even in a direct examination ; namely, where the wit- ness appears to be hostile to the party producing him, or in the interest of the other party, or unwilling to give evidence ; * 1 Snyder v. Snyder, 6 Binn. 483 ; Harrison v. Rowan, 3 Washingt. .580 ; Parkin v. Moon, 7 C. & P. 408 ; Alison's Practice, 545 ; Tait on Evid. 427. 2 Hill V. Coombe, 1 Stark. Evid. 163, note (qq.) ; Handley v. Ward, Id. ; Turney v. The State, 8 Sm. & Marsh. 104. 3 1 Stark. Evid. 152 ; Goodtitle d. Revett v. Braham, 4 T. R. 497. * Clarke v. Saffery, Ry. & M. 126, per Best, C. J. ; Regina v. Chapman, 596 LAW OF EVIDENCE. [PART III. or where an omission in his testimony is evidently caused by want of recollection, which a suggestion may assist. Thus, where the witness stated, that he could not recollect the names of the component members of a firm, so as to repeat them without suggestion, but thought he might possibly recollect them if suggested to him, this was permitted to be done.' So, where the transaction involves numerous items or dates. So, where, from the nature of the case, the mind of the witness cannot be directed to the subject of inquiry, without a particular specification of it ; as, where he is called to contradict another, as to the contents of a letter which is lost, and cannot, without suggestion, recollect all its contents, the particular passage may be suggested to him.^ So, where a witness is called to contradict another, who had stated, that such and such expressions were used, or the like, counsel are sometimes permitted to ask, whether those par- ticular expressions were used, or those things said, instead of asking the witness to state what was said.^ Where the wit- ness stands in a situation, which of necessity makes him ad- verse to the party calling him, as, for example, on the trial of an issue out of Chancery, with power to the plaintiff to examine the defendant himself as a witness, he may be cross- examined, as a matter of right.* Indeed, when and under what circumstances a leading question may be put, is a mat- 8 C. & P. 558 ; Eegina v. Ball, Id. 745 ; Regina v. Murphy, Id. 297 ; Bank of North. Liberties v. Davis, 6 Watts & Serg. 285 ; Towns v. Alford, 2 Ala. 378. Leading questions are not allowed in Scotland, even in cross-examin- ing. Tait on Evid. 427 ; Alison's Practice, 545. 1 Acerro et al. v. Petroni, 1 Stark. K. 100, per Lord EUenborough. 2 Courteen v. Touse, 1 Campb. 43 ; Edmonds v. Walter, 3 Stark. R. 7. 3 1 Stark. Evid. 152. Mr. Phillips is of opinion that the regular mode should first be exhausted in such cases, before leading questions are resorted to. Phil. & Am. on Evid. pp. 890, 891 ; 2 Phil. Evid. 404, 405. * Clarke u. Saffery, By. & M. 126. The policy of these rules, as well as of almost all other rules of the Common Law on the subject of Evidence, is controverted in the Rationale of Judicial Evidence, by Jeremy Bentham ; — " a learned writer, who has devoted too much of his time to the theory of jurisprudence, to know much of the practical consequences of the doctrines he has published to the world." Per Best, C. J., in Hovill v. Stephenson, 5 Bing. 493. CHAP. III.] EXAMINATION OF WITNESSES. 597 ter resting in the sound discretion of the Court, and not a matter which can be assigned for error.^ § 436. Though a witness can testify only to such facts as are within his own knowledge and recollection, yet he is per- mitted to refresh and assist Ms memory, by the use of a writ- ten instrument, memorandum, or entry in a book, and may be compelled to do so, if the writing is present in Court.^ It does not seem to be necessary that the writing should have been made by the witness himself, nor that it should be an original writing, provided, after inspecting it, he can speak to the facts from his own recollection.^ So also, where the 1 Moody V. Rowell, 17 Pick. 498. In this case the law on this point was thus stated by the learned Chief Justice : " The Court have no doubt that it is within the discretion of a Judge at the trial, under particular cii-cum- stances, to permit a leading question to be put to one's own witness ; as when he is manifestly reluctatit ajid hostile to the interest of the party calling him, or where he has exhausted his memory, without stating the particular required, where it is a proper name, or other fact which cannot be signifi- cantly pointed to by a general interrogatory, or where the witness is a child of tender years, whose attention can be called to the matter required, only by a pointed or leading question. So a Judge may, in his discretion, pro- hibit certain leading questions from being put to an adversary's witness, where the witness showj a strong interest or bias in favor of the cross- examining party, and needs only an intimation, to say whatever is most favorable to that party. The witness may have purposely concealed such bias in favor of one party, to induce the other to call him and make him his witness ; or the party calling him may be compelled to do so, to prove some single fact necessary to his case. This discretionary power to vary the general rule, is to be exercised only so far as the purposes of justice plainly require it, and is to be regulated by the circumstances of each case." And see Donnell v. Jones, 13 Ala. 490. 2 Keed v. Boardman, 20 Pick. 441. 3 Doe V. Perkins, 3 T. R. 749, expounded'in Rex v. St. Martin's, Leices- ter, 2 Ad. & El. 215 ; Burton v. Plummer, Id. 341 ; Burroughs i^. Martin, 2 Campb. 112 ; Duchess of Kingston's case, 20 Howell's St. Tr. 619 ; Henry v. Lee, 2 Chitty R. 124; Rambert u. Cohen, 4 Esp. 213. In Mea- goe V. Simmons, 2 C. & P. 75, Lord Tenterden observed, that the usual course was not to permit the witness to refresh his memory from any paper not of his own writing. And so is the Scotch practice. Tait on Evid. 133. But a witness has been allowed to refresh his memory from the notes of his testimony, taken by counsel at a former trial. Laws v. Reed, 598 LAW OF EVIDENCE. [PAET III. witness recollects that he saw the paper while the facts were fresh in his memory, and remembers that he then knew that the particulars therein mentioned were correctly stated.^ And it is not necessary that the writing thus used to refresh the memory should itself be admissible in evidence ; for if inadmissible in itself, as, for want of a stamp, it may still be referred to by the witness.^ But where the witness neither recollects the fact, nor remembers to have recognized the written statement as true, and the writing was not made by him, his testimony, so far as it is founded upon the written paper, is but hearsay ; and a witness can no more be per- mitted to give evidence of his inference from what a third person has written, than from what a third person has said.^ § 437. The cases in which writings are permitted to be used for this purpose, may be divided into three classes. (X.) Where the writing is used only for the purpose of assisting the memory of the witness. In this case, it does not seem necessary that the writing should be produced in Court,* 2 Lewin, Cr. Cas. 152. And from his depositbn. Smith v. Morgan, 2 M. & Rob. 259. And from a printed copy of his report. Home v. Mackenzie, 6 C. & Fin. 628. And from notes of another person's evidence, at a former trial examined by him during that trial. Regina v. Philpots, 5 Cox, Cr. C. 329. Or, within two days afterwards. Ibid, per Erie, J. But the counsel for the prisoner, on cross-examining a witness for the prosecution, is not entitled to put the deposition of the witness into his hand, for the purpose of refreshing his memory, without giving it in evidence. Regina v. Ford, Id. 184; [s. c. 4 Eng. Law & Eq. 576; State v. Lull, 37 Maine, 246. But where a witness, whose deposition had been previously taken, was asked in cross-examination what he had stated in the deposition, he was permitted to refresh his recollection by referring to a copy of the deposition. George ». Joy, 10 N. H. 544.] 1 Burrough v. Martin, 2 Campb. 112 ; Barton v. Plummer, 2 Ad. & El. 343, per Lord Denman ; Jacob i'. Lindsay, 1 East, 466 ; Downer v. Rowell, 24 Verm. 343. But see Butler v. Benson, 1 Barb. Ch. R. 526 ; [Seavy v. Dearborn, 19 N. H. 351; Webster v. Clark, 10 Foster, 245; Downer v. Rowell, 24 Vt. 343 ; State u. Colwell, 3 R. I. 132.] 2 Maugham v. Hubbard, 8 B. & C. 14 ; Kensington v. Inglis, 8 East, 273 ; Supra, §§ 90, 228. 3 2 Phil. Evid. 413. 4 Kensington v. Inglis, 8 East, 273 ; Burton ?'. Plummer, 2 Ad. & El. 341. CHAP. III.] EXAMINATION OF WITNESSES. \ 599 though its absence may afford matter of observation to the Jury ; for the witness at last testifies from his own recollec- tion. (2.) "Where the witness recollects having seen the writing before, and though he has now no independent rec- ollection of the facts mentioned in it, yet he remembers that, at the time he saw it, he knew the contents to be correct. In this case, the writing itself must be produced in Court, in order that the other party may cross-examine ; not that such writing is thereby made evidence of itself, but that the other party may have the benefit of the witness's refreshing his memory by every part.-' And for the same reason, a wit- ness is not permitted to refresh his memory by extracts made from other writings.^ (3.) Where the writing in question neither is recognized by the witness as one which he remem- bers to have before seen, nor awakens his memory to the [But see Harrison v. Middleton, 11 Gratt. 527; Howland v. Sherifif, &c. 5 Sandf. 219.] 1 Supra, §§115, 436 ; Rex v. St. Martin's, Leicester, 2 Ad. & El. 215, per Patteson, J. ; Sinclair v. Stevenson, 1 C. & P. 682 ; 2 Bing. 516, S. C. ; 10 Moore, 46, S. C. ; Loyd v. Freshfield, 2 C. & P. 325 ; 8 D. & K. 19, S. C. If the paper is shown to the witness, directly to prove the handwriting, it has been ruled, that the other party has not therefore a right to use it. Sin- clair V. Stevenson, supra. But the contrary has since been held, by Bosan- quet, J., in Russell v. Ryder, 6 C. & P. 416, and with good reason ,•> i'or the adverse party has a right to cross-examine the witness as to the handwrit- ing. 2 Phil. Evid. 400. But if the counsel, in cross-examination, puts a paper into a witness's hand, in order to refresh his memory, the opposite counsel has a right to look at it, without being bound to read it in evidence ; and may also ask the witness when it was written, without being bound to put it into the case. Rex v. Ramsden, 2 C. & P. 603. The American Courts have sometimes carried the rule farther than it has been carried in England, by admitting the writing itself to go in evidence to the Jury, in all cases where it was made by the witness at the time of the fact, for the purpose of preserving the memory of it, if, at the time of testifying, he can recpUect nothing further than that he had accurately reduced the whole transaction to writing. Farmers' and Mechanics' Bank v. Boraef, 1 Rawle, 152 ; Smith v. Lane, 12 S. & R. 84, per Gibson, J.; The State v. Rawls, 2 Nott & McCord, 331 ; Clark v. Vorce, 15 Wend. 193 ; Merrill v. Ithaca & Oswego Railroad Co. 16 Wend. 586, 596, 597, 598 ; Haven v. Wendell, 11 N. Hamp. 112. But see Lightner v. Wike, 4 S. & R. 203; [Infra, §466.] 2 Doe V. Perkins,, 3 T. R. 749 ; 2 Ad. & El. 215. 600 LAW OF EVIDENCE. [PART III. recollection of anything contained in it; but, nevertheless, knowing the writing to be genuine, his mind is so convinced, that he is on that ground enabled to swear positively as to the fact. An example of this kind is, where a banker's clerk is shown a bill of exchange, which has his own writing upon it, from- which he knows and is able to state positively that it passed through his hands. So, where an agent made a parol lease, and entered a memorandum of the terms in a book which was produced, but the agent stated that he had no memory of the transaction but from the book, without which he should not, of his own knowledge, be able to speak to the fact, but on reading the entry he had no doubt that the fact really happened; it was held sufficient.-^ So, where a witness, called to prove the execution of a deed, sees his own signature to the attestation, and says, that he is therefore sure that he saw the party execute the deed ; that is sufficient proof of the execution of a deed, though -he adds that he has no recollection of the fact.^ In these and the like cases, for the reason before given, the writing itself must be produced.^ § 438. As to the time when the writing, thus used to re- store the recollection of facts, should have been made, no precise rule seems to have been established. It is most frequently said,' that the writing must have been made at the time of the fact in question, or recently afterwards.* At 1 1 Stark. Evid. 154, 155 ; Alison's Practice, pp. 540, 541 ; Tait on Evid. 432. 2 JSex V. St. Martin's, Leicester, 2 Ad. & El. 210. See also Haig v. New- ton, 1 Const. Kep. 423; Sharpe v. Bingley, Id. 373; [Martin v. Good, 14 Md. 398 ; Cole v. Jgssup, 6 Selden, (N. Y.) 96.] 3 Maugham v. Hubbard, 8 B. & C. 16, per Bailey, J.; Kussell v. Coffin, 8 Pick. 143, 150 ; Den v. Downam, 1 Green's K. 135, 142 ; Jackson «. Christ- man, 4 Wend. 277, 282 ; Merrill v. Ithaca, &c. Railroad Co. 16 Wend. 598; Patterson v. Tucker, 4 Halst. 322, 332, 333 ; Wheeler v. Hatch, 3 Fairf. 389 ; Pigott V. HoUoway, 1 Binn. 436 ; Collins v. Lemasters, 2 Bail. 141. 1 Tanner u. Taylor, cited by BuUer, J., in Doe «. Perkins, 3 T. R. 754 ; Howard v. Canfield, 5 Dowl. P. C. 417 ; Dupuy v. Truman, 2 Y. & Col. 341. Where A was proved to have written a certain article in a newspaper, but CHAP. III.] EXAMINATION OF WITNESSES. 601 the farthest, it ought to have been made before such a period of time has elapsed, as to render it probable that the memory of the witness might have become deficient.^ But the prac- tice, in this respect, is governed very much by the circum- stances of the particular case. In one case, to prove the date of an act of bankruptcy committed many years before, ■ a witness was permitted to recur "to his own deposition, made some time -during the year in which the fact hap- pened.^ In another case, the witness was not permitted to refresh his memory with a copy of a paper, made by himself six months after he made the original, though the original was proved to have been so written over with figures as to , have become unintelligible ; the learned Judge saying, that he could only look at the original memorandum, made near the time.2 . And in a still later case, where it was proposed to (efer to a paper, which the witness had drawn up fot the party who called him, after the cause was set down for trial, the learned Judge refused it ; observing that the rule must be confined to papers written contemporaneously with the transaction.* But where the witness had herself noted down the transactions from time to time as they occurred, but had the manuscript was lost, and A had no recollection of the fact of writing it, it was held that the newspaper might be used to refresh his memory, and that he might then be asked whether he had any doubt that the fact was as therein stated. Topham v. McGregor, 1 Car. & Kir. 320. So, where the transaction had faded from the memory of the witness, but he recollected, that while it was recent and fresh in his memory, he had stated the circum- stances in his examination before commissioners of bankruptcy, which they had reduced to writing, and he had signed ; he was allowed to look at his examination to refresh his memory. Wood v. Cooper, Id. 645. 1 Jones V. StroudJ 2 C. & P. 196. 2 Vaughan «. Martin, 1 Esp. 440. 3 Jones V. Stroud, 2 C. & P. 196, per Best, C. J. In this case, the words in the copy and as sworn to by the witness, were spoken to the plaintiff; but on producing the original, which, on further reflection, was confirmed by the witness, it appeared that they were spoken of him. The action was slander ; and the words being laid according to the copy, for this variance the plaintiff was nonsuited. * Steinkeller v. Newton, 9 C. & P. 313. [So where a witness, five months after the occurrence of certain events, had, at the request of a party inter- ested, made a statement in writing, and swore to it, he was not allowed to VOL. I. 51 602 LAW OP BVIDBNCB. [PART III. requested the plaintiff's solicitor to digest her notes into the form of a deposition, which she afterwards had revised, cor- rected, and transcribed, the Lord Chancellor indignantly sup- pressed the deposition.^ § 439. K a witness has become blind, a contemporaneous writing made by himself, though otherwise inadmissible, may yet be read over to him, in order to excite his recollection.^ So, where a receipt for goods was inadmissible for want of a stamp, it was permitted to be used to refresh the memory of a witness who heard it read over to the defendant, the latter afthe same time admitting the receipt of the gbods.^ testify to his- belief in its correctness. Spring Garden Ins. Co. B.Riley, 15 Md. 540 1 Anon, cited by Lord Kenyon, in Doe v. Perkins, 3 T. R. 752. See'also Sayer v. Wagstaff, 5 Beav. 462. S! Catt V. Howard, 3 Stark. R. 3. 3 Jacob V. Lindsay, 1 East, 460. In Scotland, the subject of the use and proper office of writings, in restoring the recollection of witnesses, has been well considered and settled ; and the law as practised in the Courts of that country, is stated with precision by Mr. Alison, in his elegant and philo- sophical Treatise on the Practice of the Criminal Law. " It is frequently made a question," he observes, " whether a witness may refer to notes or memorandums made to assist his memory. On this subject, the rule is, that notes or memoranda made up by the witness at the moment, or recently after the fact, may be looked to in order to refresh his memory ; but if they were made up at the distance of weeks or months thereafter, and still more, if done at the recommendation of one of the parties, they are not admissible. It is accordingly usual to allow witnesses to look to memorandums made at the time, of dates, distan'ces, appearances on dead bodies, lists of stolen goods or the like, before emitting his testimony, or even to read such notes to the Jury, as his evidence, he having first sworn that they were made at the time, and faithfully done. In regard to lists of stolen goods, in particular, it is now the usual- practice .to have inventories of them made up at the time from the information of the witness in precognition, signed by him, and libelled on as-^ production at the trial, and he is then desired to read them or they ar'e~r6ad to him, and he swears that they contain a correct list of the stolen articles. In this way much time is saved, at the trial, and much more correctness and accuracy is obtained, than could possibly have been expected, if the witness were required to state from .memory all the particulars of the stolen articles, at the distance perhaps of montha from the time when they were lost. With the exception, however, of such memorandums,' notes, or CHAP. III.] EXAMINATION OF WITNESSES. 603 § 440. In genera], though a witness must depose to such facts only aS' are within his own knowledge, yet there is no rule that requires him to speak with such expression of cer- tainty as to exclude all doubt in his mind. If the fact is impressed on his memory, but his recollection does not rise to positive assurance, it is still admissible, to be weighed by the Jury ; but if the impression is not derived from recollec- tion of the fact, and is so slight as to render it probable that it may have been derived from others, or may have been some unwarrantable deduction of the witness's own mind, it will be rejected.! And though the opinions of witnesses are in general not evidence, yet on certain subjects some classes inventories made up at the time, or shortly after the occasion libelled, a witness is not permitted to refer to a written paper as containing his deposi- tion ; for that would annihilate the whole advantages of parol evidence, and vka voce examination, and convert a Jui-y trial into a mere consideration of written instruments. There is one exception, however, properly introduced into this rule ; in the case of medical or other scientific reports or certificates, which are lodged in process before the trial, and libelled on as productions in the indictment, and which the witness is allowed to read as his deposition to the Jury, confirming it at its close by a declaration on his oath, that it is a true report. The reason of this exception is founded in the consideration, that the medical or other scientific facts or appearances, which are the sub- ject of such a report, are generally so minute and detailed, that they cannot with- safety "be intrusted to the memory of- the witness, but much more reli- ance may be placed on a report made out by him at the time, when the facts or appearances are fresh in his recollection ; while, on the other hand, such witnesses have generally no personal interest in the matter, and from their situation and rank in life, are much less liable to suspicion than those of an inferior class, or more intimately connected with the transaction in question. Although, therefore, the scientific witness is always called on to read his re- port, as affording the best evidence of the appearances he was called on to examine, yet he may be, and generally is, subjected to a further examination by the prosecutor, or a cross-examination on the prisoner's part ; and if he is called on to state any facts iu the case, unconnected with his scientific re- port, as conversations with the deceased, confessions heard by him from the panel, or the like, utitur jure commune, he stands in the situation of an ordi- nary witness, and must give his evidence verbally in answer to the questions put to him, and can only refer to jottings or memorandums of dates, &c., made up at the time, to refresh his memory, like any other person put into the box." See Alison's Practice, 540-542. 1 Clark V. Bigelow, 4 Shepl. 246 ; [Nute v. Nute, 41 N. H. 60.] 604 LAW OF EVIDENCE. [PART III. of witnesses may deliver their own opinions, and on certain other subjects any competent witness may express his opinion or belief; and on any subject, to which a witness may tes- tify, .if he has any recollection at all of the fact, he may express it as it lies in his memory, of which the Jury will judge.^ Thus it is the constant practice to receive in evi- dence any witness's belief of the identity of a person, or that the handwriting in question is or is not the handwriting of a particular individual, provided he has any knowledge of the person or handwriting; and if he testifies falsely as to his belief, he may be convicted of perjury.^ On questions of science, skill, or trade, or others of the like kind, persons of. skill, sometimes, called experts.,^ may not only testify to facts, but are permitted to give their opinions in evidence. Thus, the opinions of medical men are. constantly admitted, as to the cause of disease, or of death, or the consequences of 1 Miller's case, 3 Wils. 427, per Ld. Ch. Just. UeGrey ; MoNally's Evid. 262, 263. And see Carmalt v. Post, 8 Watts, 411, per Gibson, C. J. 2 Rex V. Pedley, Leach, Cr. Uas. 365, case 152. 3 Experts, in the strict sense of the word, are " persons instructed by ex- perience." 1 Bouvier's Law Diet, in verb. But more generally speaking, the ternas includes all " men of science," as it was used by Ld. Mansfield in Folkes V. Chadd, 3 Dbug. 157; or, "persons professionally acquainted with the science or practice" in question ; Strickland on Evid. p. 408; or '.'con- versant with the subject-matter, on questions of science, skill, trade, and others of the like kind." Best's Principles of Evidence, § 346. The rule on this subject is stated by Mr. Smith in his note to Carter v. Boehm, 1 Smith's Lead. Cas. 286. " On the one hand," he observes, "it appears to be admit- ted that the opinion of witnesses possessing peculiar skill is admissible, when- ever the subject-iiiatter of inquiry is such, that .inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance ; in other words, when it so far partakes 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; see Polkes !;. Chadd, 3 Doug. 157 ; K. «. Searle, 2 M. & M. 75 ; Thornton v. &. E. Assur. Co., Peake, 25 ; Chaurand V. Angerstein, Peake, 44 ; while on the other hand, it does not seem to be contended that the opinions of witnesses can be received, when the inquiry is into a subject-matter, the nature of which is not such as to require any peculiar habits or study, in order to qualify a man to understand it." It' has been held unnecessary that the witnijss should be engaged in the prac- tice of his profession or science ; it being sufficient that he has studied it. CHAP. III.] EXAMINATION OF WITNESSES. 605 wounds, and as to the sane or insane state of a person's mind, as collected from a number of circumstances, and as to other subjects of professional skill.' And such opinions are admissible in evidence, though the witness founds them, not on his own personal observation, but on the case itself, as proved by other witnesses on the trial.^ But where sci- entific men are called as witnesses, they cannot give their opinions as to the gen'eral merits of the cause, but only their opinions upon the facts proved.^ And if the facts are doubt- ful, and remain to be found by the Jury, it has been held improper to ask an expert who has heard the evidence, what is his opinion upon the case on trial ; though he may be iisked his opinion upon a similar case, hypothetically stated.^ Nor is the opinion of a medical man admissible, that a par- ticular act, for which a prisoner is tried, was an act of ip- Thus, the fact that the witness, though he had studied medicine, was not then a practising physician, was held to go merely to his credit. Tullis v. Kidd, 12 Ala. 648. [The rule determining the subjects upon which experts may testify, and the rule prescribing the qualifications of experts, are matters of law : but whether a witijess offered as an expert, has those qualifications, is a question of fact to be decided by the Court at the trial. Jones v. Tucker, 41 N. Hamp. 546.] 1 Stark. Evid. 154 ; Phil. & Am. on Evid. 899 ; Tait on Evid. 433 ; Ha- thorn V. King, 8 Mass. 371 ; Hoge v. Fisher, 1 Pet. C. C. R. 163 ; Folkes v. Chadd, 3 Doug. 157, per Ld: Mansfield ; McNally's Evid. 329-335, ch. 30. [A mon-professional witness may give his opinion upon the sanity of a party, as the result of his own observations, accompanied with a statement of the facts, which he has observed, but he cannot give an opinion upon the facts stated by other witnesses. Dunham's Appeal, ^7_i2onn. 193.], 2 Rex V. Wright, Russ. & Ry. 156 ; Rex v. Searle, 1 M. & Rob. 75 ; Mc- Naughten's case, 10 CI. & Fin. 200, 212 ; Paige v. Hazard, 5 Hill, 603. [But an expert cannot be allowed to give his opinion upon a case based upon statements made to him by parties out of Court and not under oath. Heald V. Thing, 45 Maine, 392.] 3 Jameson v. Drinkald, 12 Moore, 148. .But professional books, or books of science, (e. g. medical books,) are not admissible in evidence ; though pro- fessional witnesses may be asked the grounds of their judgment and opinion, which might in some degree be founded on these books as a part, of their general knowledge. Collier v. Simpson, 5 C. & P. 73 ; [Commonwealth v. Wilson, 1 Gray, 338i] But see Bowman u. Woods, 1 Iowa R. 441. 4 Sills V. Brown, 9 C. & P. 601. 51* 606 LAW OP EVIDENCE. [PART III. sanity.^ So, the subscribing witnesses to a will may testify their opinions, in respect to the sanity of the testator at the time of executing the will ; though other witnesses can speak only as to facts ; for the law has placed the subscribing wit- nesses about the testator, to ascertain and judge of his ca- pacity.^ Seal engravers may be called to give their opinion upon an impression whether it was made from an original seal, or from an impression.^ So, the opinion of an artist in painting, is evidence of the genuineness of a picture.* And it seems, that the genuineness of a postmark may be proved by the opinion of one who has been in the habit of receiving letters with that mark.^ In an action for breach of a promise to marry, a person accustomed to observe the mutual deport- ment of the parties, may give in evidence his opinion upon the question, whether they were attached to each other.*" A ship-builder may give his opinion as to the seaworthiness of a ship, even on facts stated by others.'^ A nautical per- 1 Rex V. Wright, Russ. & R. 456. 2 Chase V. Lincoln, 3 Mass. 237 ; Poole v. Richardson, Id. 330 ; Rambler .;. Tryon, 7 S. & R. 90, 92 ; Buckminster v. Perry, 4 Mass. 593 ; Grant r- Thompson, 4 Conn. 203. -And see Sheafe v. Rowe, 2 Lee, R. 415 ; Kinle- side V. Harrison, 2 Phil. 523; Wogan v. Small, 11 S. & R. 141. But Tfhere the witness has had opportunities for knowing and observing the conversa- tion, conduct, and manners of the person whose sanity is in question, it has been held, upon grave consideration, that the witness may depose, not only to particular facts, but to his opinion or belief as to the sanity of the party, formed from such actual observation. Clary v. Clary, 2 Ired. R. 78. Such evidence is also admitted in the Ecclesiastical Courts. See Wheeler v. Al- derson, 3 Hagg. Eccl. R. 574, 604, 605. 3 Per Ld. Mansfield, in Folkes v. Chadd, 3 Doug. 157. * Ibid. 5 Abbey v. Lill, 5 Bing. 299, per Gaselee, J. [The testimony of experts is receivable, in corroboration of positive evidence to prove that, in their opinion, the whole of an instrument was written by the same hand, with the same pen and ink, and at the same time. Fulton v. Hood, 34 Penn. 365.] 6 McKee v. Nelson, 4 Cowenj>355. 7 Thornton v. The Royal Exch. Assur. Co. 1 Peake, R. 25 ; Chauraud v. Angerstein, Id. 43 ; Beckwith v. Sidebotham, 1 Campb. 117. So of nauti- cal men, as to navigating a ship. Malfon v. Nesbit, 1 C. & P. 70. Upon the question, whether certain implements were part of the necessary tools of a person's trade, the opinions of witnesses are not admissible ; but the Jury are to determine upon the facts proved. Whitmarsh v. Angle, 3 Am. Law Journ. 274, N. S. CHAP. III.] EXAMINATION OF WITNESSES. 60J Son may testify his opinion whether, upon the facts proved by the plaintiff, the collision of two ships could have been avoided by proper care on the part of the defendant's ser- vants.i Where the question was, whether a bank which had been erected to prevent the overflowing of the sea, had caused the choking up of a harbor, the opinions of scientific engineers, as to the effect of such an embankment upon the harbor, were held admissible in evidence.^ A secretary, of a fire insurance company, accustomed, to examine buildings with reference to the insurance of them, and who, as a county commissioner, had frequently estimated damages occasioned by the laying out of railroads and highways, has been held competent to testify his opinion, as to the effect of laying a railroad within a certain distance of a building, upon the value of the rent, and the increase of the rate of insurance against fire.^ Persons accustomed to observe the habits of certain fish, have been permitted to give in evidence their opinions, as to the ability of the fish to overcome cer- tain obstructions in the rivers which they were accustomed to ascend.* A person acquainted for many years with a cer- tain stream, its rapidity of rise in times of freshet, and the volume- and force of its waters in a certain place, may give his opinion as to the sufficiency of a dam, erected in that place, to resist the force of the flood.^ A practical surveyor may express his opinion, whether the marks on trees, piles of stone, &c., were intended as monuments of boundaries;^ but he cannot be asked whether, in his opinion, from the objects and appearances which he saw on the ground, the 1 Feawiek v. Bell, 1' Car. & Kir. 312. 2 Folkes V. Chadd, 3 Doug. 157. 3 Webber u. Eastern Railroad Co. 2 Met. 147. Where a point involv- ing questions of practical science, is in dispute in Chancery, the Court will advise a reference of it to an expert in that science, for his opinion upon the. facts ; which will be adopted by the Court as the ground of its order. Webb V. Manchester & Leeds Railw. Co. 4 My. & C. 116, 120; 1 Railwj Cas. 576. 1 Cottrill V. Myrick, 3 Fairf. 222. 5 Porter v. Poquonnoc Man. Co. 17 Conn. 249. 6 Davis V. Mason, 4 Pick. 156. 608 LAW OF EVIDENCE. [PART ni. tract he surveyed was identical with the tract marked on a certain diagram.^ § 440 a. In weighing the testimony of biased witnesses, however, a distinction is observed between matters of opinion and matters of fact. Such a witness, it is said, is to be dis- trusted when he speaks to matters of opinionj but in mat- ters Qi fact, his- testimony is to receive a degree of credit in proportion to the probability of the transaction, the absence or extent of contradictory proof, and the general tone of his evidence.^ § 441. But witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which other persons would probably be influenced, if the parties acted in one way rather than in another.^ Therefore 1 Farar v. Warfield, 8 Mart. N. S. 695, 696. So, the opinion of an expe- rienced seaman has been received, as to the proper stowage of a cargo; — Price 0. Powell, 3 Const. 322;- — and of a mason, as to the time requisite for the walls of a house to become so dry as to be safe for human habitation ; Smith V. Gugerty, 4 Barb. S. C. R. 614; and of a master, engineer, and builder of steamboats, as to the manner of a collision, in view of the facts proved. The Clipper v. Logan, 18 Ohio, 375. [A witness, even if an ex- pert as to handwriting, cannot give his opinion as to the indorsement on a note having been made as long previous as six years. Saokett v. Spencer, 29 Barb. 180.] But mere opinions as to the amount of damages, are not ordinarily to be received. Harger v. Edmonds, 4 Barb. S. C. R. 256 ; Giles V. O'Tople, Id. 261. See also Walker v. Protection Ins.. Co. 16 Shepl. 317. Nor 5ire mere opinions admissible respecting the value of property in com- mon use, such as horses, and wagons, or lands, concerning which no particu- lar study is required, or skill possessed. Robertson v. Stark, 15 N. Hamp.' 109 ; Rochester v. Chester, 3 .N. Hamp. 349 ; Peterborough v. Jaffrey, 6 N. Hamp. 462. And see Whipple v. Walpole, 10 N. Hamp. 130, where this rule is expounded. [But see Vandine v. Burpee, 13 Met. 288 ; Shaw v. Charlestown, 2 Gray, 107. The value of the reversion of land over which a railroad is located is not properly provable by experts. Boston & Worcester R. Co. V. Old Colony R. Co. 3 Allen^ 142 ; Mish v. Wood, 34 Penn. 4^^] 2 Lockwood V. Lockwodd, 2 Curt. 209 ; Dillon v. Dillon, 3 Curt. d6, 102. [Where a party to a suit is a competent witness he may give his testimony as an expert, if qualified. Dickenson v. Fitchburg, 13 Gray, 546.] 3 Per Ld. Denman, C. J., in Campbell v. Rickards, 5 B. & Ad. 840 ; 2 N. & M. 542, S. C. But where a libel consisted in imputing to the plaintiff that CHAP. III.] ' EXAMINATION OF WITNESSES. 609 the opinions of medical practitioners upon the question, whether a certain physician, had honorably and faithfully discharged his duty to his medical brethren, have been re- jected.-' So the opinion of a person conversant with the business of insurance, upon the question, whether certain parts of a letter, which the broker of the insured had received, . but which he suppressed when reading the letter to the under- writers, were or were not material to be communicated, has been held inadmissible ;2 for, whether a particular fact was material or not in the particular case, is a question for the Jury to decide, under the circumstances.^ Neither can a witness be asked, what would have been his own conduct in the particular case.* "But in an actidn against a broker for negligence, in not procuring the needful alterations in a policy of insurance, it has been held, that other brokers might be called to say, looking at the policy, the invoices, and the letter of instructions, what alterations a skilful broker ought to have made.^ he acted dishonjorably, in withdrawing a horse which had been entered for a race ; and he proved by a witness that the rules of the Jockey Club, of which he was a member, permitted owners to withdraw their horses before the race was run ; it was held that the witness, on" cross-examination, might be asked whether such conduct as he had described as lawful under those rules, would not be regarded by him as dishonorable. Greville v. Chapman, 5 Ad. & El. 731, N. S. " ■ ■ 1 Eamadge v. Ryan, 9 Bing. 333. 2 Campbell v. Rickards, 5 B. & Ad. 840, in whicTi the case of Rickards v. Murdock, 10 B. & C. 527, and certain other decisions to the contrary, are considered and overruled. See, aoeordingly, Carter v. Boehm, 3 Burr, 1905, 1918 ; Durrel v. Bederley, 1 Holt's Cas. 283 ; Jefferson Ins. Co. v. Cotheal, 7 Wend. 72, 79 ; [Joj'ce v. Maine Insurance Co. 45 Maine, 168.] 3 Rawlins y. Desborough, 2 M. & Rob. 329 ; Westbury v. Aberdein, 2 M. &W. 267. 4 Berthon w.Loughman, 2 Starfc R. 258. 4 Chapman v. Walton, 10 Bing. 57. Upon the question, whether the opinion of a person, conversant with the. business of insurance, is admissible, to show that the rate of the premium would have been affected by the com- munication of particular facts, there has been much diversity of opinion among Judges, and the cases are not easily reconciled. See Phil. & Am. on Evid. 899 ; 2 Stark. Evid. 886. But the later decisions are against the admissibility of the testimony, as a general rule. See Campbell v. Rickards, 610 LAW OP EVIDENCE. ' [PAllT III. § 442. When a party offers a witness in proof of his cause, he thereby, in general, represents him as worthy of belief. He is presumed to know the character of the wit- nesses he adduces ; and having thus presented them to the Court, the law will not permit the party afterwards to impeach their general reputation for truth, or to impugn their credi- bility by general evidence, tending to show them to be uur worthy of belief. For this would enable him to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hand of destroying his credit if he spoke against him.^ § 443. But to this general rule there are some exceptions. 5 B. & Ad. 840. Perhaps the following observations of Mr. Starkie, on this subject, will be found to indicate the true principle of discrimination among , the cases which call for the application of the rule. " Whenever the' fixing the fair price and value upon a contract to insure, is matter of skill and judgment, acting according to certain general rules and principles of calcu- lation, applied to the particular circumstances of each individual case, it seems to be matter of evidence to show whether the facts suppressed would have been noticed as a term in the particular calculation. It would not be difficult to propound instances, in which the materiality of the fact withheld would be a question of pure science ; in other instances, it is very possible that mere common sense, independent of any peculiar skill or experience, would be sufficient to comprehend that the disclosure was material, and its suppression fraudulent, although not to understand to what extent the risk was increased by that fact. In intermediate oases, it seems to be difficult in principle wholly to exclude the evidence, although its importance may vary exceedingly according to circumstances." See 2 Stark. Evid. 887, 888, (3d Lond. ed.) 649, (6th Am. ed.) 1 Bull. N. P. 297 ; Ewer v. Ambrose, 3 B. & C. 746 ; Stockton v. Demuth, 7 Watts, 39 ; Smith a. Price, 8 Watts, 447. But where a witness testified to the Jury, contrary to her statement in a former deposition given in the same cause, it was held not improper for the Judge to order the deposition, to be read, in order to impeach the credit of the witness. Kex v. Oldroyd, Rus. 6 Ry. 88. [A witness who has testified in chief that he does not know cer- tain facts, cannot, although he shows a disposition to conceal what he knows, be asked by the party calling him whether he did not on a former occasion ■ swear to his knowledge of those facts, as the object of the question could only be " to disparage the witness and show him unworthy of credit with the Jury, which was inadmissible." Commonwealth «. Welch, 4 Gray, 535, 537.] CHAP. III.] ■ EXAMINATION OF WITNESSES. 611 For, where the witness is not one of the party's own selec- tion, but is one whom the law obliges him to call, such as the subscribing witness to a deed, or a will, or the like : here he can hardly be considered as the witness of the party calling him, and therefore, as it seems, his character for truth may be generally impeached.^ But, however this may be, it is exceedingly clear that the party, calling a witness, is not pre- cluded from proving the truth of any particular fact, by any other competent testimony, in direct contradiction to what such witness may have testified ; and this not only where it appears that the witness was innocently mistaken, but even where the evidence may collaterally have the effect of show- ing that he was generally unworthy of belief.^ § 444. .Whether it be competent for a party to prove that a witness whom he has called, and whose testimony is unfa- vorable to his cause, had previously stated the facts in a dif- ferent manner, is a question upon which there exists some diversity of opinion. On the one hand, it is urged, that a party is not to be sacrificed to his witness ; that he is not represented by him, nor identified with him ; and that he ought not to be entrapped by the art^ of a designing man, perhaps in the interest of his adversary.^ On the other •1 Lowe V. JoIIiffe, 1 W. Bl. 365 ; Poth. on Obi. by Evans, Vol. 2, p. 232, App. No. 16; Williams v. Walker, 2 Rich. Eq. R. 291. And see Good- title V. Clayton, 4 Burr. 2224 ; Cowden v. Reynolds, 12 S. & R. 281. But see Wliitaker v. Salisbury, 15 Pick. 544, 545 ; Dennett v. Dow, 5 Shepl. 19 ; Brown v. Bellows, 4 Pick. 194; [Shorey v. Hussey, 32 Maine, 579.] 2 Bull. N. P. 297; Alexander v. Gibson, 2 Campb. 555; Richardson v. Allan, 2 Stark. R. 334; Ewer v. Ambrose, 3 B. & C. 746 ; 6 D. & R. 12V ; 4 B. & C. 25, S. C; Friedlander v. London Assur. Co. 4 B. & Ad. 193 ; Lawrence v. Barker, 5 Wend. 305, per Savage, C. J. ; Cowden U.Reynolds, 12 S. & R. 281; Bradley v. Ricardo, 8 Bing. 57; Jackson v. Leek, 12 Wend. 105 ; Stockton v. Demuth, 7 Watts, 39 ; Brown v. Bellows, 4 Pick. 179, 194; Perry v. Massey, 1 Bail. 32; Spencer v. White, 1 Iredell, R. 239; Dennett v. Dow, 5 Shepl. 19; McArthur v. Hurlburt, 21 Wend. 190; Atto.- Gen. V. Hitchcock, 1 Exch. R. 91, 11 Jur. 378; The Lochlibo, 14 Jur. 792, 1 Eng. L. & Eq. Rep. 645; [Hall v. Houghton, 37 Maine, 411 ; Seavy v. Dearborn, 19 N. H. 351 ; Brown v. Wood, 19 Miss. 475.] ■ 3 Phil. & Am. on Evid. 904, 905 ; 2 Phil. Evid. 447. 612 LAW OP EVIDENCE. [PART III. hand, it is said, that to admit such proof, would enable the party to get the naked declarations of a witness before the Jury, operating, in fact, as independent evidence ; and this, too, even where the declarations werernade out of Court, by collusion, for the purpose of being thus introduced.^ But the weight of authority seems in favor of admitting the party to show, that the evidence has taken him by surprise, and is contrary to the examination of the witness preparatory to the trial, or to what the party had reason to believe he would testify ; or, that the witness has recently been brought under the influence of the other party, and has deceived the party calling him. For it is said that this course is necessary for his protection against the contrivance of an artful witness ; and that the danger of its being regarded by the Jury as sub- stantive evidence is no greater in such cases, than it is where the contradictory declarations are proved by the adverse party.^ 1 Ibid.; Smitb v. Price, 8 Watts,- 447; Wright v. Beckett, 1 M. & Rob. 414, 428, per BoUand, B. 2 Wright V. Beckett, 1 M. & Rob. 414, 416, per Ld. Denman; Rice v. New Eng. Marine Ins. Co. 4 Pick. 439 ; Rex v. Oldroyd, Russ. & Ry. 88, 90, per Ld. Ellenborough, and Mansfield, C. J. ; Brown u. Bellows, 4 Pick. 179 ; The State v. Jforris, 1 Hayw. 437, 438 ; 2 Phil. Evid. 450-463 ; Dunn V. Aslett, 2 M. & Rob. 122; Bank of Northera Liberties v. Davis, 6 Watts & Serg. 285 ; Infra, § 467, n. But see Holdsworth v. Mayor of Dartmouth, 2 M. & Rob. 153 ; Regina v. Ball, 8 C. & P. 745 ; and Regina v. Farr, 8 C. & P. 768, where evidence of this kind was rejected. In a recent case, how- ever, this point has been more fully considered, and it was held, that if a witness unexpectedly gives evidence adverse to the* party calling him, the party may ask him if he has not, on a particular occasion, made a contrary statement. And the question and answer may go to the Jury, with the rest of the evidence, the Judge cautioning them not to infer, from the question alone, that the fact suggested in it is true. In such case, the party who called the witness, may still go on to prove his case by other witnesses, not- withstanding their testimony, to relative facts, may contradict, and thus indirectly discredit, the former witness.. Thus, in an action for an assault ahd battery, if the plaintiff's first witness testifies that the plaintiff, in con- versation, ascribed the injury to an accident, the plaintiff may prove that, in fact, no such accident occurred. And if the witness denies a material fact, and states that persons connected with the plaintiff offered him money to assert the fact, the plaintiff may not only still go on to prove the fact. CHAP. III.] EXAMINATION OF WITNESSES. . 613 § 445. When a witness has been examined in chief, the other party has a right to cross-examine him.^ But a ques- tion often arises, whether the witness has been so examined in chief, as to give the other party this right. If the witness is called merely for the purpose of producing a paper, which is to be proved by another witness, he need not be sworn.^ Whether the right of cross-examination, that is, of treating the witness as the witness of the adverse party, and of exam- ining him by leading questions, extends to the whole case, or is to be limited to the matters upon which he has already been examined in chief, is a point upon which there is some diversity of opinion. In England, when a competent wit- ness is called and sworn, the other party will, ordinarily, and in strictness, be entitled to cross-examine him, though the party calling him does not choose to examine him in chief ; ^ unless he was sworn by mistake ; * or, unless an immaterial question having been put to him, his further examination in chief has been stopped by the Judge.^ And even where a plaintiff was under the necessity of calling the defendant in interest as a witness, for the sake of formal proof only, he but he may also disprove the subornation ; for this latter fact has now become relevant, though no part of the main transaction, inasmuch as its truth or falsehood may fairly influence the belief, of the Jury as to the whole case. Melhuish u. Collier, 15 Ad. & El. 378, N. S. [See The Lochlibo, 1 Eng. Law & Eq. 645. Greenough v. Eccles, 5 Com. B. Rep. N. S. 786.] 1 If the witness dies after he has been examined in chief, and before his cross-examination, it has been held that his testimony is inadmissible. Kis- sam V. Forrest, 25 Wend. 651. But in Equity, its admissibility is in the dis- cretion of the Court, in view of the circumstances. Gass ». Stinson, 3 Sumn. 104-108; Infra, § 554. [Where the State has summoned a witness and the witness has been sworn, but not examined, the prisoner has no right to cross-examine him as to the whole case. Austin v. State, 14 Ark. 555.] a Perry v. Gibson, ,1 Ad. & El. 48 ; Davis v. Dale, 1 Mo. & M. 514 ; Read v. James, 1 Stark. R. 132 ; Rush v. Smith, 1 C. M. & R. 94 ; Sum- mers V. Moseley, 2 C. & M. 477. 3 Rex V. Brooke, 2 Stark, R. 472; Phillips v. Earner, 1 Esp. 357; Dick- inson V. Shee, 4 Esp. 67; Regina v. Murphy, 1 Armst. Macartn. & Ogle, R. 204. 4 Clifford V. Hunter, 3 C. & P. 16 ; Rush v. Smith, 1 C. M. & R. 94 ; Wood V. Mackinson, 2 M. & Rob. 273. 5 Creevy v. Carr, 7 C. & P. 64. ' VOL. I. 62 614 LAW OV EVIDENCE. [PART III, not being party to the record, it has been held, that he was thereby made a witness for all purposes, and might be cross- examined to the whole case.' In some of the American Courts the same rule has been adopted ; ^ but in others, the contrary has been held ; ^ and the rule is now considered by the Supreme Court of the United States, to be well estab- lished, that a party has no right to cross-examine any wit- ness, except as to facts and circumstances connected with the matters stated in his direct examination ; and that if he wishes to examine him to other matters, he must do so by making the witness his own, and calling him, as such, in the subsequent progress of the cause.* § 446. The power of cross-examination has been justly said to be one of the principal, as it certainly is one of the most efficacious tests, which the law has devised for the dis- covery of truth. By means of it, the situation of the witness with respect to the parties, and to the subject of litigation, his interest, his motives, his inclination, and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, 1 Morgan V. Brydges, 2 Stark. R. 314. 2 Moody V. Kowell, 17 Pick. 490, 498 ; Jackson v. Varick, 7 Cowen, 238 ; 2 Wend. 166 ; Fulton Bank v. Stafford, 2 Wend. 483 ; [Linsley v. Lovely, 26 Vt. 123 ; Beal v. Nichols, 2 Gray, 262. This case decides also, that where a witness is called only to prove the execution of an instrument, and is cross-examined generally by the other party, the party calling him has not a right to cross-examine him upon the new matter upon which he was ex- amined by the other party, unless allowed by the Court in its discretion to do so ; and he cannot except to the ruling of the Court that as a matter of law he has no right so to cross-examine him.] , 3 Harrison v. Rowan, 3 Wash. 580; Ellmaker v. Buckley, 16 S. &R. 77. 4 The Philadelphia & Trenton Railroad Co. v. Stimpson, 14 Peters, 448, 461 ; Floyd v. Bovard, 6 Watts & Serg. 75. It is competent for the party, after having closed his case so far as relates to the evidence, to introduce additional evidence, by the cross-examination of the witnesses on the other side, for the purpose of more fully proving facts not already sufficiently proved ; the subject being within the discretion of the Judge. Common- wealth V. Eastman, 1 Cush. 189, 217. CHAP. III.] EXAMINATION OF WITNESSES. 615 and description, are all fully investigated and ascertained, and submitted to the consideration of the Jury, before whom he has testified, and who have thus had an opportunity of observing his demeanor, and of determining the just weight and value of his testimony. It is not easy for a witness, who is subjected to this test, to impose on a Court or Jury ; for however artful the fabrication of falsehood may be, it cannot embrace all the circumstances to which a cross-examination may be extended.^ 1 1 Stark. Evid. 160, 161. On the subject of examininj; and cross- examining witnesses viva voce, Quintilian gives the following instructions : " Primum est, nosse testem. Nam timidus terreri, stultus decipi, iracundus concitari, ambitiosus inflari, longus protrahi potest; prudens veroet constans, vel tanqiiam inimicus et pervicax dimittendus statim, vel non interrogatione, sed brevi interlocutione patroni, refutandus est; aut aliquo, si continget, urbane dicto refrigerandus ; aut, si quid in ejus vitam dici poterit, infamia criminum destruendus. Probos quosdam et verecundos non aspere incessere profuit; nam sajpe, qui ad versus insectantem pugnassent, modestia mitigan- tur. Omnis autem interrogatio, aut in causa est, aut extra causam. In causa, (sicut aocusatori prsecepimus,) patronus quoque altius, unde nihil suspecti sit repetita percontatione, priora sequentibus applicando, ssepe eo perducit homines, ut invitis, quod prosit, extorqueat. Ejus rei, sine dubio, nee disci- plina uUa in scholis, nee exercitatio traditur ; et naturali magis acumine, aut nsu contingit hsec virtus. * * Extra causum quoque multa, quae prosint, rogari solent, de vita testium aliorum, de sua quisque, si turpitudo, si hu- militas, si amicitia accusatoris, si inimicitise cum reo, in quibus aut dicant aliquid, quod prosit, aut in mendacio vel cupiditate Isedendi deprehendantur. Sed in primis interrogatio debet esse circumspecta ; quia multa contra patronos venuste testis ssepe respondet eique praeclpue vulgo favetur ; turn verbis quam maxime ex medio sumptis ; ut qui rogatur (is autem saepius imperitus) intelligat, aut ne intelligere se neget, quod interrogantis non leve frigus est." Quintil. Inst. Orat. lib. 5, c. 7. Mr. Alison's observations on the same sub- ject are equally interesting both to the student and the practitioner. He observes : " It is often a convenient way of examining, to ask a witness, whether such a thing was said or done, because the thing meutiqned aids his recollection, and brings him to that stage of the proceeding on which it is desired that he should dilate. But this is not always fair ; and when any subject is approached, on which his evidence is expected to be really im- portant, the proper course is to ask him what was done, or what was said, or to tell his own story. In this way, also, if the witness is at all intelligent, a mose consistent and intelligent statement will generally be got, than by put- ting separate questions ; for the witnesses generally think over the subjects, 616 LAW OP BVIDBNCB. [PAKT Ilf. § 447. Whether, when a party is once entitled to cross- examine a witness, this right continues through all the subse- quent stages of the cause, so that if the party should after- wards recall the same witness, to prove a part of his own case, he may interrogate him by leading questions, and treat him as the witness of the party who first adduced him, is also a question upon which different opinions have- been held. Upon the general ground, on which this course of examination is permitted at all, namely, that every witness is supposed to be inclined most favorably towards the party calling him, there would seem to be no impropriety in treat- ing him, throughout the trial, as the witness of the party on which they are to be examined in criminal cases, so often, or they have narrated them so frequently to others, that they go on much more fluently and distinctly, when allowed to follow the current of their own ideas, than when they are at every moment interrupted or diverted by the examining counsel. Where a witness is evidently prevaricating or concealing the truth, it is seldom by intimidation or sternness of manner tjiat he can be brought, at least in this country, to let out the truth. Such measures may sometimes terrify a timid witness into a true confession ; but in general they only confirm a hardened one in his falsehood, and give him time to consider how seeming contradictions may be reconciled. The most effectual method is to examine rapidly and minutely, as to a number of subordinate and appar- ently trivial points in his evidence, concerning which there is little likeli- hood of his being prepared with falsehood ready-made ; and where such a course of interrogation is skilfully laid, it is rarely that it fails in exposing perjury or contradiction in son\f parts of the testimony which it is desired to overturn. It frequently happens, that in the course of such a rapid ex. amination, facts most material to the cause are elicited, which are either de- nied, or but partially admitted before. In such cases, there is no good ground on which the facts thus reluctantly extorted, or which have escaped the witness in an unguarded moment, can be laid aside by the Jury. Without doubt, they come tainted from the polluted channel through which they are adduced ; but still it is generally easy to distinguish what is true in such dep- ositions from what is false, because the first is studiously withheld, and the second is as carefully put forth; and it frequently happens, that in this way the most important testimony in a case is extracted from the most unwilling witness, which only comes with the more effect to an intelligent Jury, be- cause it has emerged by the force of examination, in opposition to an obvi- ous desire to conceal." See Alison's Practice, 546, 547. See also the re- marks of Mr. Evans on cross-examination, in his Appendix to Poth. on Obi. No. 16, Vol. 2, pp. 233, 234. CHAP. III.] EXAMINATION OF WITNESSES. 617 who first caused him to be summoned and sworn. But as the general course of the exanjination of witnesses is subject to the discretion of the Judge, it is not easy to establish a rule, which shall do more than guide, without imperatively con- trolling the exercise of that discretion.' A party, however, who has not opened his own case, will not be allowed to in- troduce it to the Jury by cross-examining the witnesses of the adverse party ,^ thougjj, after opening it, he may recall them for that purpose. § 448. We have already stated it as one of the rules, gov- erning the production of testimony, that the evidence offered ^must correspond with the allegations, and be confined to the point in issue. And we have seen that this rule excludes all evidei^ce of collateral facts, or those which afford no reason- able inference as to the principal matter in dispute.^ • Thus, where eI broker was examined to prove the market value of certain stocks, it was held that he was not compellable to state the names of the. persons to whom he had sold such stocks/ As the plaintiff is bound, in the proof of his case, i0 confipe jhjs evideofce to the issue, the defendant is in like manner jjestricted to the same point; and the same rule is applied "to the respective parties, through aU the subsequent stages of the cause ; all questions as to collateral facts, except in cross-examination, being strictly .excluded. The reasons •of this rule have been already intimated. If it were not so, the true pxerits of the controversy might be lost sight 1 1 Stark. Ev. 162; Moody v. Rowell, 17 Pick. 498; Supra, § 435. 2 Ellmaker v. Bulkley, 16 S. & R. 77 ; 1 Stark. Evid. 164. [The rule in the text is stated to be the strict rule in Burke v. Miller, 7 Cush. 547, 550, although a departure from it, being discretionary with the Judge, is not open to exception. At the trial of this cause in the Court below, the plain- tiff called a witness merely to prove the formal execution of a deed, and the defendant began to cross-examine him as to matters of defence, and the Court ruled — that this cross-examination should be deferred until the de- fendant's case was opened, when the witness being recalled, could be cross- examined by the .defe.ndsipt ; and this ruling was sustained. See Moody v. Kowell, 17 Pick. 499.] 3 Supra, §§ 51, 52. 4 Jonau v. Ferrand, 3 Rob. Louis. R- 36$. 62* 618 . LAW 'OF EVIDENCE. [PART III. of, in the mass of testimony to other points, in which they would be overwhelmed ; the attention of the Jury would be wearied and distracted; judicial investigations would be- come interminable ; the expenses might be enormous, and the characters of witnesses might be assailed by evidence which they could not be prepared to repel.^ It may be added, that the evidence not being to a material point, the witness could not be punished for perjury, if it were false.2 § 449. In cross-examinations, however, this rule is not usually applied with the same strictness as in examinations in chief; but on the contrary, great latitude of interrogation is sometimes permitted by the Judge, in the exercise of his discretion, where, from the temper and conduct of the wit- ness, or other circumstances, such course seems essential to the discovery of the truth [Mayhew v. Thayer, 8 Gray, 172] ; or, where the cross-examiner will undertake to show the rel- evancy of the interrogatory afterwards, by other evidence.^ On this head, it is difficult to lay down any precise rule.* But it is a well-settled rule, that a witness camnot be cross- examined as to any fact, which is collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testi- mony.^ And, if a question is put to a witness which is col- lateral or irrelevant to the issue, his answer cannot be con- tradicted by the party who 'asked the question ; but it is (Conclusive against him.® But it is not irrelevant to inquire 1 Phil. & Am. on Evidence, 909, 910. 2 But a question, having no bearing on the matter in issue, may be made material by its relation to the witness's credit, and false swearing thereon will be perjury. Reg. u. Overton, 2 Mod. Cr. Cas. 263. 3 Haigh u. Belcher, 7 C. & P. 389 ; Supra, §.52. * Lawrence v. Barker, 5 Wend. 305. B Spenceley v. De Willott, 7 East, 108; 1 Stark. Evid. 164 ; Lee's case, 2 Lewin's Cr. Cas. 154 ; Harrison v. Gordon, Id. 156 ; [Coombs v. Winches- ter, 39 N. Hamp. 1.] 6 Harris!). Tippett, 2 Campb. 627; Odiorne u. Winkley, 2 Gall. 51, 53; Ware v. Ware, 8 Greenl. 62 ; Rex v. Watson, 2 Stark. R. 116, 149 ; Law- CHAP. III.] EXAMINATION OF WITNESSES. 619 of the witness, whether he has not on some former occasion given a different account of the matter of fact, to which he rence v. Barker, 5 Wend. 301, 305; Meagoe v. Simmons, 3 C. & P. 75; Crowley v. Page, 7 C. & P. 789 ; Commonwealth v. Buzzell, 16 Pick. 157, 158; Palmer v. Trower, 14 Eng. L. & Eq. R. 470. Thus, if he is asked whether he has not said to A that a bribe had been offered to him by the party by whom he was called; and he denies having so said; evidence is not admissible to prove that he did so state to A. Attorney-Gen. v. Hitch- cook, 11 Jur. 478 ; 1 Exch. R. 91, S. C. So where a witness was asked, on cross-examination, and for the sole purpose of affecting his credit, whether he had not made false representations of the adverse party's responsibility, his negative answer was held conclusive against the party cross-examining. Howard v. City Fire Ins. Co. 4 Denio, 602. But where a witness, on his cross-examination, denied that he had attempted to suborn another person to testify in favor of the party who had summoned him, it was held, that his answer was not conclusive, and that testimony was admissible to contra- dict him, as it materially affected his credibility. Morgan v. Frees, S. C. N. York, 1 Am. Law Reg. 92. Where a witness, called by the plaintiff to prove the handwriting in issue, swore it was not that of the defendant, and another paper, not evidence in the cause, being shown to him by the plain- tiff, he swore that this also was not the defendant's, the latter answer was conclusive against the plaintiff. Hughs v. Rogers, 8 M. & W. 123. See also Griffiths v. Ivery, 11 Ad. & El. 322; Philad. & Trenton Railroad Co. v. Stimpson, 14 Peters, 461 ; Harris v. Wilson, 7 Wend. 57 ; Tennant v. Ham- ilton, 7 Clark & Fin. 122; The State v. Patterson, 2 Iredell, R. 346. [The rule which excludes all evidence tending to contradict the statements of a witness as to collateral matters, does not apply to any facts immediately and properly connected with the main subject of inquiry. Everything which goes to affect the credit of a witness, as to the particular facts to which he is called to testify, is material and admissible. Thus where testimony to a fact is founded mainly upon a written memorandum which the witness tes- tifies was made by himself at the time, and which was produced by him at a former trial, and since has been lost, the other party may show, for the pur- pose of discrediting the witness, that the memorandum then produced was not in his handwriting. Commonwealth v. Hunt, 4 Gray, 421. In Harring- ton V. Lincoln, 2 Gray, 133, a witness on cross-examination by the plaintiff answered in the negative the following question : " Did you not say to W. (another witness,) after he had left the stand, that if you had been on the stand in his place, when cross-examined by the defendant's counsel, you would have said something, even if it had been untrue ? " and it was held, that the plaintiff could not be allowed to contradict this answer by other evi- dence, because it was collateral, and did not tend to show any partiality or bias on the part of the witness in favor of the defendant, or any attempt to influence or induce W. to give false testimony favorable to the defendant ; 620 XAW OF EVIDENCE. [PART III. has already testified, in order to lay a foundation for impeach- ing his testimony by contradicting him. The inquiry, how- ever, in such cases, must be "confined to matters of fact only ; mere opinions which the witness may have formerly expressed being inadmissible, unless the case is such as to render evi- dence of opinions admissible and material.^ Thus, if the witness gh'ould give, in evidence in chief, his opinion of the identity of a person, or of his handwriting, or of his sanity, or the like, he may be asked whether he has not formerly expressed a different opinion upon the same subject ; but if he has simply testified to a fact, his previous opinion of the merits of the case is inadmissible. Therefore, in an action upon a marine policy, where the broker, who effected the policy for the plaintiff, being called as a witness for the de- fendant, testified that he omitted to disclose a certain fact, now contended to be material to the risk, and being cross- examined whether he had not expressed his opinion that the underwriter had not a leg to stand upon in the defence, he denied that he had said so ; this was deemed conclusive, and evidence to contradict him in this particular was re- jected.^ § 450. So, also, it has been held not irrelevant to the guilt or innocence of one charged with a crime, to inquire of the had it been of that character, it would have been competent to put in the contradictory evidence. See also Commonwealth v. Goddard, 2 Allen, 148.] 1 Elton V. Larkins, 5 C. & P. 385 ; Daniels v. Conrad, 4 Leigh's K. 401, 405. But a witness cannot be cross-examined as to what he has sworn in an affidavit, unless the affidavit is produced. Sainthill v. Bound, 4 Esp.'74; Rex V. Edwards, 8 C. & P. 26 ; Regina v. Taylor, Id. 726. If the witness does not recollect saying that which is imputed to him, evidence may be given that he did say it, provided it is relevant to the matter in issue. Crow- ley V. Page, 7 C. & P. 789. [Nute v. Nute, 41 N. H. 60. Nor is it com- petent to show that the witness has given an opinion out of Court relative to the subject-matter of the suit, inconsistent with the conclusion which the facts he testifies to at the trial will warrant. The statement must not only relate to the issue, but be a matter of fact, and not merely a former opinion. Holmes v. Anderson, 18 Barb. 420.] 2 Elton V. Larkins, 5 C. & P. 385. CHAP. III.] EXAMINATION OF WITNESSES. 621 witness for the prosecution, in cross-examination, whether he has not expressed feelings of hostility towards the prisoner.^ The like inquiry may be made in a civil action ; and if the witness denies the fact, he may be contradicted by other witnesses.^ So also, in assumpsit upon a promissory note, the execution of which was disputed, it was held materia,l to the issue, to inquire of the subscribing witness, she being a servant of the plaintiff, whether she was not his kept mis- tress.^ § 451. In regard to the privilege of witnesses, in not being- compellable to answer, the cases are distinguishable into sev- eral classes. (1.) Where it reasonably appears that the answer will have a tendency to expose the witness to a penal liabil- ity, or to any kind of punishment, or to a criminal charge. Here the authorities are exceedingly clear that the witness is not bound to answer.* And he may claim the protection at any stage of the inquiry, whether he has already answered the question in part, or not at aU.° If the fact to which he 1 Rex V, Yewin, cited 2 Campb. 638. 2 Atwood V. Welton, 7 Conn. 66 ; [Martin v. Farnham, 5 Foster, 195 ; Drew V. Wood, 6 lb. 363 ; Cooley v. Norton, 4 Cush. 93 ; Long v. Lamkin, 9 lb. 361 ; Newton v. Harris, 2 Selden, 345 ; Commonwealth v. Byron, 14 Gray, 31.] 3 Thomas v. David, 6 C. & P. 350, per Coleridge, J. 4 Southard v. Rexford, 6 Cowen, 254 ; 1 Burr's Trial, 245 ; E. India Co. V. Campbell, 1 Ves. 227 ; Paxton v. Douglass, 19 Ves. 225 ; Gates v. Hard- acre, 3 Taunt. 424 ; MacBride v. MacBride, 4 Esp. 248 ; Rex v. Lewis, Id. 225 ; Rex v. Slaney, 5 C. & P. 213 ; Rex v. Pegler, 5 G. & P. 521 ; Dodd V. Norris, 3 Campb. 519 ; Malony v. Bartly, Id. 210. If he is wrongfully compelled to answer, what he says will be regarded as obtained by com- pulsion, and cannot be given in evidence against him. Regina v. Garb^tt, 1 Denis. C. C. 236 ; 2 Car. & K. 474. And see supra, § 193 ; 7 Law Rev. 19-30. 5 Regina v. Garbett, 1 Denis. C. C. 236 ; 2 Car. & K. 474 ; Ex parte Cossens, Buck, Bankr. Gas. 531, 545. [If a witness discloses part of a trans- action in which he was criminally concerned, without claiming his privilege, he must then proceed to state the whole, if what he has disclosed is clearly a part of the transaction ; otherwise not. Coburn v. Odell, 10 Foster, 540; Norfolk v.. Gaylord, 28 Conn. 309.] 622 . LAW OF BVIDBNOE. [PABT III. is interrogated, forms but one link in the chain of testimony, which is to convict him, he is protected. And whether it may tend to criminate or expose the witness, is a point upon which the Court are bound to instruct him ; ^ and whichr the Court will determine, under all the circumstances of the case 5^ but without requiring the witness fully to explain how he might be criminated by the answer, which the truth would oblige him to give. For if he were obliged to show how the effect would be produced, the protection which this rule of law is designed, to afford him would at once be anni- hilated.^ But the Court will not prevent the witness from ' Close V. Olney, 1 Denio, E. 319. [See Commonwealth v. Shaw, 4 Cush. 594.] 2 This point, however, is not universally agreed. In Fisher v. Eonalds, 17 Jur. 393, Jervis, C. J., and Maule, J., were of opinion that it was for the witness to say, on his oath, whether he believed that the question tended to criminate him ; and if he did, that his answer was conclusive. Williams, J., thought the point not necessary then to be decided. [S. C. 16 Eng. Law & Eq. 417, and note. See also Osborne v. London Dock Co. 29 lb. 389 ; Jauv- rin V. Soammon, 9 Foster, 280.] 3 The People v. Mather, 4 Wend. 229 ; 1 Burr's Trial, 245 ; Southard v. Eexford, 6 Cowen, 254, 255 ; Bellinger, in error, v. The People, 8 Wend. 595. In the first of these cases, this doctrine was stated by the learned Judge, in the following terms : " The principal reliance of the defendant, to sustain the determination of the Judge, is placed, I presume, on the rule of law, that protects a witness in refusing to answer a question, which will have a tendency to accuse him of a crime or misdemeanor. Where the dis- closures he may make can be used against him to procure his conviction for a criminal offence, or to charge him with penalties and forfeitures, he may stop in answering, before he arrives at the question, the answer to which may show directly his moral turpitude. The witness, who knows what the Court does not know, and what he cannot communicate without being a self- accuser, is to judge of the effect of his answer, and if it proves a link in the ch,ain of testimony, which is sufficient to convict him, when the others are made known, of a crime, he is protected by law from answering the question. If there be a series of questions, the answer to all of whi.ch would establish his criminalty, the party cannot pick out a particular one and say, if that be tput, the answer will not criminate him. ' If it is one step having a tendency to criminate him, he is not compelled to answer.' (16 Ves. 242.) The same privilege that is allowed to a witness, is the i'ight of a defendant in a Court of Equity, when called on to answer. In farkhurst v. Lowten, 2 Swanst. 215, the Chancellor held, that the defendant ' was not only not bound to CHAP. III.] EXAMINATION OF WITNESSES. 623 answering it, if he chooses ; they will only advertise him of his right to decline it.^ This rule is also administered in Chancery, where a defendant will not be compelled to dis- cover that which if answered, would tend to subject him to a penalty or punishment, or which might lead to a criminal accusation, or to ecclesiastical censures.^ But in all cases answer the question, the answer to which would criminate him directly, but not any Trhich, however remotely connected with the fact, would have a tendency to prove him guilty of simony.' The language of Chief Justice Marshall, on Burr's trial, is equally explicit on this point. ' Many links,' he says, 'frequently compose that chain of testimony, which is necessary to convict an individual of a crime. It appears to the Court to be the true sense of the rule, that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible but a probable case, that a witness, by disclosing a single fact, may complete the testimony against himself, and, to every effectual purpose, accuse himself entirely as he would by stating every circumstance, which would be required for his conviction. That fact of itself would be unavailing, but all other facts without it would be insufficient. While that remains concealed in his own bosom, he is safe, but draw it from thence, and he is exposed to a prosecution. The rule vphich declares, that no man is compellable to accuse himself, would most obviously be infringed, by compelling a witness to disclose a fact of this description.' (1 Burr's Trial, 244.) My conclusion is, that where a wit- ness claims to be excused from answering a question, because the answer may disgrace him, or render him infamous, the Court must see that the answer may, without the intervention of other facts, fix on him moral turpi- tude. Where he claims to be excused from answering, because his answer will have a tendency to implicate him in a crime or misdemeanor, or will expose him to a penalty or forfeiture, then the Court are to determine, whether the answer he may give to the question can criminate him, directly or indirectly, by furnishing direct evidence of his guilt, or by establishing one of many facts, which together may constitute a chain of testimony suffi- cient to warrant his conviction, but which one fact of itself could not pro- duce such result ; and if they think the answer may in any way criminate him, they must allow his privilege, without exacting from him to explain how he would be criminated by the answer, which the truth may oblige him to give. If the witness was obliged to show how the effect is produced, the protection would at once be annihilated. The means which he would be in that case compelled to use to obtain protection, would involve the surrender of the very object, for the security of which the protection was sought." See 4 Wend. 252, 253, 254. See also Short v. Merbier, 15 Jur. 93 ; 1 Eng. Law & Eq. Eep. 208, where the same point is discussed. 1 4 Wend, 252, 253, 254. 2 Story's Eq. PI. §§ 524, 576, 577, 592-598; Mclntyre v. Mancius, 624 LAW OF EVIDENCE. [PART III. where the witness, after being advertised of his privilege, chooses to answer, he is bound to answer everything relative to the transaction.^ But the privilege is his own, and not ,that of the party; counsel, therefore, will not be allowed to make the objection.^ If the witness declines answering, no inference of the truth of the fact is permitted to be drawn from that circumstance.^ And no answer forced from him by the presiding Judge, after he has claimed pro- tection, can be afterwards given in evidence against him.* If the prosecution, to which he might be exposed, is barred by lapse of time, the privilege ceases, and the witness is bound to answer.^ § 452. (2.) Where the, witness, by answering, may subject himself to a civil action or pecuniary loss, or charge himself with a debt. This question was very much discussed in England, in Lord Melville's case; and, being finally put to the Judges by the House of Lords, eight Judges and the Chancellor were of opinion that a witness, in such case, was bound to answer, and four thought that he was not. To remove the doubts which were thrown over the question by 16 Johns. 592; Wigram on Discovery, pp. 61, 150, 195, (1st Am. ed.) ; Id. § 130-133, 271, (2d Lend, ed.) ; Mitford's Eq. PI. 157-163. ' 1 Dixon V. Vale, 1 C. & P. 278; The State v. K , 4 N. Hamp. 562 ; East V. Chapman, 1 M, & Malk. 46 ; 2 C. & P. 570, S. C. ; Low u. Mitchell, 6 Shepl. 272; [Foster v. Pierce, 11 Cush. 437, 439 ; Chamberlain v. Will- son, 12 Verm. 491 ; Coburn v. Odell, 10 Foster, 540.] 2 Thomas v. Newton, 1 M. & Malk. 48, note; Rex v. Adey, 1 M. & Rob. 94 ; [Commonwealth v. Shaw, 4 Cush. 594.] 3 Rose V. Blakemore, Ry. & M. 383 ; [Phealing v. Kenderdine, 20 Penn. State R. 354 ; Carne v. Litchfield, 2 Mich. 340. See Boyle v. Wiseman, ■29 Eng. Law & Eq. 473, where the witness who claimed the privilege was one of the parties to the suit.] 1 Reg. V. Garbett, 2 C. & K. 474. In- Connecticut, by Rev. Stat. 1849, tit. 6, § 161, it is enacted, that evidence given by a witness in a criminal case, shall not " be at any time construed to his prejudice." Such, in sub- stance, is also the law of Virginia. See Tate's Dig. p. 340 ; Virg. Code of 1849, ch. 199, § 22. 5 Roberts v. AUatt, 1 M. & Malk. 192; The People v. Mather, 4 Wend. 229, 252-255. CHAP. III.J EXAMINATION OF -WITNESSES. 625 such a diversity of opinion among eminent Judges, a statute was passed,' declaring the law to be, that a witness could not legally refuse to answer a question relevant to the mat- ter in issue, merely on the ground that the answer may establish, or tend to establish, that he owes a debt, or is otherwise subject to a civil suit; provided the answer has no tendency to accuse himself, or to expose him to any kind of penalty or forfeiture. In the United States, this act is gen- erally considered as declaratory of the true doctrine of the Common Law ; and, accordingly, by the current of authori- ties, the witness is held bound to answer.^ But neither is the statute, nor the rule of the Common Liaw, considered as compelling a person interested in the cause as party, though not named on the record, to testify as a witness in the cause, much less to disclose anything against his own interest.^ § 453. (3.) Where the answer will subject the witness to & forfeiture of Ms estate. In this case, as well as in the case of an exposure to a criminal prosecution or penalty, it is well 1 46 Geo. 3, c. 37 ; 2 Phil. Evid. 420 ; 1 Stark. Evid. 165. It is so settled by statute in New York. 2 Rev. Stat. 405, § 71. 2 Bull V. Loveland, 10 Pick. 9 ; Baird v. Cochran, 4 S. & K. 397 ; Nass v. Van Swearingen, 7 S. & R. 192; Taney v. Kemp, 4 H. & J. 348 ; Naylor V. Semmes, 4 G. & J. 273 ; City Bank v. Bateman, 7 H. & J. 104 ; Stoddart ». Manning, 2 H. & G. 147 ; Copp v. Upham, 3 N. Hamp. 159 ; Cox ». Hill, 3 Ohio R. 411, 424; Planters' Bank v. George, 6 Martin, 679, N. S.; Jones V. Lanier, 2 Dev. Law Rep. 480; Conover «. Bell, 6 Monroe, 157; Gorham V. Carroll, 3 Littel, 221 ; ZoUieoffer v. Turney, 6 Yerger, 297 ; Ward v. Sharp, 15 Verm. 115. The contrary seems to have been held in Connecticut. Benjamin v. Hathaway, 3 Conn. 528, 532. [An action will not lie against / a witness, who in the due course of judicial proceeding, has uttered false 5 and defamatory statements concerning the plaintiff, even though he did so] inaliciously and without reasonable and probable cause, and the plaintiff, suffered damages in consequence. Revis u. Smith, 36 Eng. Law and Eq.' 268, 272, 278.] 3 Rex V. Woburn, 10 East, 395 ; Mauran v. Lamb, 7 Cowen, 174; Apple- ton V. Boyd, 7 Mass. 131 ; Fenn v. Granger, 3 Campb. 177 ; The People v. Irving, 1 Wend. 20; White v. Everest, 1 Verm. 181. VOL. 1. 53 626 LAW OF EVIDENCE. [PART III. settled that a witness is not bound to answer.^ And this is an established rule in Equity, as well as at Law.'' § 454. (4.) Where the answer, though it will not expose the witness to any criminal prosecution or penalty, or to any forfeiture of estate, yet has a direct tendency to degrade his character. On this point there has been a great diversity of opinion, and the law stiU remains not perfectly settled by authorities.^ But the conflict of opinions may be somewhat 1 6 Cobbett's P. D. 167 ; 1 Hall's Law J. 223 ; 2 Phil. Evid. 420. 2 Mitford's Eq. PI. 157, 161 ; Story's Eq. PI. §§ 607, 846. 3 The arguments on the respective sides of this question are thus summed up by Mr. Phillips : " The advocates for a compulsory power in cross-ex- amination maintain, that, as parties are frequently surprised by the appear- ance of a witness unknown to them, or, if known, entirely unexpected, without such power they would have no adequate means of ascertaining what credit is due to his testimony ; that, on the cross-examination of spies, informers, and accomplices, this power is more particularly necessary ; and that, if a witness may not be questioned as to his character at the moment of trial, the property and even the life of a party must often be endangered. Those on the other side, who maintain that a witness is not compellable to answer such questions, argue to the following effect. They say, the obliga- tion to give evidence arises from the oath, which every witness takes ; that by this oath he binds himself only to speak touching the matters in issue ; and that such particular facts as these, whether the witness has been in jail for felony, or suffered some infamous punishment, or the like, cannot form any part of the issue, as appears evident from this consideration, that the party against whom the witness is called would not be allowed to prove such particular facts by other witnesses. They argue, further, that it would be an extreme grievance to a witness, to be compelled to disclose past transac- tions of his life, which may have been since forgotten, and to expose his character afresh to evil report, when, perhaps, by his subsequent conduct, he may have recovered the good opinion of the world ; that, if a witness is privileged from answering a question, though relevant to the matters in issue, because it may tend to subject him to a, forfeiture of property, with much more reason ought he to be excused from answering an irrelevant question, to the disparagement and forfeiture of his character; that, in the case of accomplices, in which this compulsory power of cross-examina- tion is thought to be more particularly necessary, the power may be prop- erly conceded to a certain extent, because accomplices stand in a peculiar situation, being admitted to give evidence only under the implied condi- tion of making a full and true confession of the wholctruth ; but even accomplices are not to be questioned, in their cross-examination, as to CHAP. Ill,] EXAMINATION OF WITNESSES. 627 reconciled by a distinction, which has been very properly taken between cases, where the testimony is relevant and material to the issue, and cases where the question is not strictly relevant, but is collateral, and is asked only under the latitude allowed in a cross-examination. In the former case, there seems great absurdity in excluding the testimony of a witness, merely because it will tend to degrade himself, when others have a direct interest in that testimony,, and it is' essential to the establishment of their rights of property, of liberty, or even of life ; or to the course of public justice. Upon such a rule, one who had been convicted and punished for an offence, when called as a witness against an accom- plice, would be excused from testifying to any of the trans- actions, in which he had participated with the accused, and thus the guilty might escape. And, accordingly, the better opinion seems to be, that where the transaction, to which the witness is interrogated, forms any part of the issue to be tried, the witness will be obliged to give evidence, however strongly it may reflect on his character.^ § 455. But where the question is not material to the issue, but is collateral and irrelevant, being asked under the license allowed in cross-examination, it stands on another ground. In general, as we have already seen, the rule is, that upon cross-examination to try the credit of a witness, only general questions can be put ; and he cannot be asked as to any col- lateral and independent fact, merely with a view to contra- dict him afterwards by calling another witness. The danger of such a practice, it is said, is obvious ; besides the incon- venience of trying as many collateral issues as one of the other offences, in which they have not been concerned with the prisoner ; that, with respect to other witnesses, the best course to be adopted, both in point of conTenience and justice, is to allow the question to be asked, at the same time allowing the witness to shelter himself under his privi- lege of refusing to answer." Phil. & Am. on Bvid. pp. 917, 918; 2 Phil. Evid. 422. 1 2 Phil. Evid. 421 ; The People v. Mather, 4 Wend. 250-254, per Marcy, J. ; Peake's Evid. (by Norris,) p. 92; Cundell v. Pratt, 1 M. & Malk. 108 ; Swift's Evid. 80. So in Scotland. Alison's Practice, p. 528. 628 LAW OF EVIDENCE. [PAKT III. parties might choose to inti-oduce, and which the other could not be prepared to meet.^ Whenever, therefore, the question put to the witness is plainly of this character, it is easy to perceive that it falls under this rule, and should be excluded. But the difficulty lies in determining, with precision, the materiality and relevancy of the question, when it goes to the character of the witness. There is certainly great force in the argument, that where a man's liberty, or his life, depends upon the testimony of another, it is of infinite importance, that those who are to decide upon that testi- mony should know, to the greatest extent, how far the wit- ness is to be trusted. They cannot look into his breast, to see what passes there ; but must form their opinion on the collateral indications of his good faith and sincerity. What- ever, therefore, may materially assist them in this inquiry, is most essential to the investigation of truth ; and it cannot but be material for the Jury to understand the character of the witness, whom they are called upon to believe ; and to know whether, although he has not been convicted of any crime, he has not in some measure rendered himself less credible by his disgraceful conduct.^ The weight of this argument seems to have been felt by the Judge in several cases in which questions, tending to disgrace the witness, have been permitted in cross-examination. § 456. It is, however, generally conceded, that where the answer, which the witness may give, will not directly and certainly show his infamy, but wiU only tend to disgrace him, he may be compelled to answer. Such is the rule in Equity, as held by Lord Bldon ; ^ and its principle applies with 1 Spencely v. De Willott, 7 East, 108, 110. Ld. Ellenborough remarked, that he had ruled this point again and again at' the sittings, until he was quite tired of the agitation of the question, and therefore he wished that a bill of exceptions should be tendered by any party dissatisfied with his judg- ment, that the question might be finally put at rest. See also Lohmau u. The People, 1 Comst. 379. 2 1 Stark. Evid. 170. 3 Parkhurst v. Lowten, 1 Meriv. 400 ; 2 Swanst. 194, 216, S. C. ; Foss v. Haynes, 1 Redingt. 81. And see Story, Eq. PI. §§ 585, 696. CHAP. III.] EXAMINATION OF WITNESSES. 629 equal force at Common Law ; and, accordingly, it has been recognized in the Common-Law Courts.^ In questions in- volving a criminal offence, the rule, as we have seen,^ is different; the witness being permitted to judge for the most part for himself, and to refuse to answer, wherever it would tend to subject him to a criminal punishment or forfeiture. But here the Court must see for itself, that the answer will directly show his infamy, before it will excuse him from testi- fying to the fact.2 Nor does there seem to be any good rea- son why a witness should be privileged from answering a question touching his present situation, employment, and associates, if they are of his own choice ; as, for example, in what house or family he resides, what is his ordinary occu- pation, and whether h^ is intimately acquainted and con- versant with certain persons, and the like ; for, however these may disgrace him, his position is one of his own selection.* § 457. But, on the other hand, where the question involves the fact of a previous conviction, it ought not to be asked ; because there is higher and better evidence which ought to be offered. If the inquiry is confined, in terms, to the fact of his having been subjected to an ignominious pimishment, or to imprisonment alone, it is made, not for the purpose of show- ing that he was an innocent sufferer, but that he was guilty ; and the only competent proof of this guilt is the record of his conviction. Proof of the same nature, namely, docu- mentary evidence, may also be had of the cause of his com- mitment to prison, whether in execution of a sentence, or on a preliminary charge.* 1 The People v. Mather, 4 Wend. 232, 252, 254 ; The State v. Patterson, 2 Iredell, R. 346. a Supra, § 451. 3 Macbride v. Macbride, 4 Esp. 242, per Ld. Alvanley ; The People v. Mather, 4 Wend. 254, per Marcy, J. * Thus, when a witness was asked, whether she was not cohabiting with a particular individual, in a state of incest, Best, C. J., prohibited the ques- tion ; stating expressly, that he did this only on the ground, that the answer would expose her to punishment. Cundell w. Pratt, 1 M. & Malk. 108. 5 The People v. Herrick, 13 Jtshns. 84, per Spencer, J.; Clement «. 53* 630 LAW OF EVIDENCE. [PAET III. § 458. There is another class of questions, which do not seem to come within the reasons already stated in favor of permitting this extent of cross-examination ; namely, ques- tions, the answers to which, though they may disgrace the witness in other respects, yet will not affect the credit due to his testimony. For it is to be remembered, that the object of indulging parties in this latitude of inquiry is, that the Jury may understand the character of the witness, whom they are asked to believe, in order that his evidence may not pass for more than it is worth. Inquiries, therefore, having no tendency to this end, are clearly impertinent. Such are the questions frequently attempted to be put to the principal female witness, in trials for seduction per quod servitium amisit, and on indictments for rape, &c., whether she had not previously been criminal with other men, or with some par- ticular person, which are generally suppressed.^ So, on an Brooks, 13 N. Hamp. R. 92. In Rex p. Lewis, 4 Esp. 225, the prosecutor, who was a common informer, was asked whether he had not been in the house of correction in Sussex ; but Lord EUenboroiigh interposed, and sup- pressed the question ; partly on the old rule of rejecting all questions, the object of which was to degrade the witness; but chiefly, because of the injury to the administration of justice, if persons, who came to do their duty to the public, might be subjected to improper investigation. Inquiries of this nature have often been refused on the old ground alone. As in The State u. Bailey, Pennington's R. 304, (2d ed.) ; Millman v. Tucker, 2 Peake's Cas. 222; Stout V. Russell, 2 Yeates, 334. A witness is also privileged from answering respecting the commission of an oiFeuce, though he has received a pardon ; " for," said North, C. J., " if he hath his pardon, it doth take away- as well all calumny, as liableness to punishment, and sets him right against all objection." Rex v. Reading, 7 Howell's St. Tr. 296. It may also be observed, as a further reason for not interrogating a witness respecting his conviction and punishment for a crime, that he may not understand the legal .character of the crime for which he was punished, and so may admit him- self guilty of an offence which he never committed. In Rex ti. Edwards, i T. R. 440, the question was not asked of a witness, but of one who offered himself as bail for another, indicted of grand larceny. [See Smith v. Cas- tles, 1 Gray, 108, 112; Commonwealth v. Shaw, 4 Cush. 593.] 1 Dodd u. Norris, 3 Campb. 519; Rex v. Hodgdon, Kuss. & Ry. 211; Vaughn v. Perrine, Penningt. R. 534. But where ihe prosecution is under a bastardy act, the issue being upon the paternity of the child, this inquiry ho its mother, if restricted to the proper time, is material, and she will be held to answer. Swift's Evid. p. 81. See also Macbride v. Macbride, 4 Esp. 242 ; CHAP. III.] EXAMINATION OF WITNESSES. 631 indictment of a female prisoner, for stealing from the person, in a house, the prosecutor cannot be asked, whether at that house anything improper passed between him and the pris- oner.i § 459. But where the question does not fall within either of the classes mentioned in the three preceding sections, and goes clearly to the credit of the witness for veracity, it ig not easy to perceive why he should be privileged from answering, notwithstanding it may disgrace him. The examination be- ing governed and kept within bounds by the discretion of the Judge, all inquiries into transactions of a remote date will of course be suppressed; for the interests of justice do not re- quire that the errors of any man's life, long since repented of and forgiven by the community, should be recalled to remem- brance, and their memory be perpetuated in judicial docu- j ments, at the pleasure of any future litigant. The State has a deep interest in the inducements to reformation, held out by the protecting veil, which is thus cast over the past offences of the penitent. But where the inquiry relates to transactions comparatively recent, bearing directly upon the present character and moral principles of the witness, and therefore essential to the due estimation of his testimony by the Jury, learned Judges have of late been disposed to allow it.^ Thus it has been held, that a witness called by one party, may be asked in cross-examination, whether he had not attempted to dissuade a witness for the other party from Bate V. Hill, 1 C. & P. 100. In Rex v. Teal et al. 11 East, 307, 311, which was an indictment for conspiring falsely to charge one with being the father of a bastard child, similar inquiries were permitted to be made of the mother, who was one of the conspirators, but was admitted a witness for the prosecu- tion. [People w.Blakeley, 4 Parker, C.R. 176.] Seepos^, Vol. 2, § 577. 1 Rex V. Pitcher, 1 C. & P. 85. 2 This relaxation of the old rule was recognized, some years ago, by Lord Eldon. " It used to be said," he observed, " that a witness could not be called on to discredit himself; but there seems to be something like a depar- ture from that ; I mean, that in modern times, the Courts have permitted questions to show, from transactions not in issue, that the witness is of im- peached character, and therefore not so credible." Parkhurst v. Lowten, 2 Swanst. 216. 632 LAW OF BVIDENCB. [PAET III. attending the trial.^ So where one was indicted for larceny, and the principal witness for the prosecution was his servant boy, the learned Judge allowed the prisoner's counsel to ask the boy, whether he had not been charged with robbing his master, and whether he had not afterwards said he would be revenged of him, and would soon fix him in jail.^ Similar inquiries have been permitted in other cases.^ The great question, however, whether a witness may not be bound in some cases to answer an interrogatory to his own moral degradation, where, though it is collateral to the main issue, it is relevant to his character for veracity, has not yet been brought into direct and solemn judgment, and must there- fore be regarded as an open question, notwithstanding the practice of eminent Judges at nisi prims, in favor of the inquiry, under the limitations we have above stated.* § 460. Though there may be cases, in which a witness is not bound to answer a question which goes directly to dis- grace him, yet the question may be asked, wherever the answer, if the witness should waive his privilege, would be received as evidence.^ It has been said, that if the witness declines to answer, his refusal may well be urged against his credit 1 Harris v. Tippett, 2 Campb. 637. 2 Rex V. Yewin, cited 2 Campb. 638. 3 Rex V. Watson, 2 Stark. R. 116, 149; Rex u. Teal et al. 11 East, 311; Cundell V. Pratt, 1 M. & Malk. 108 ; Rex v. Barnard, 1 C. & P. 85, note (a) ; Rex V. Gilroy, lb. ; Frost v. Holloway, cited in 2 Phil. Evid. 425. ■« See 1 Stark. Evid. 167-172 ; 2 Phil. Evid. 423-428; Peake's Evid. by Norris, p. 202-204. In Respublica v. Gibbs, 8 Yeates, 429, where the old rule of excluding the inquiry was discussed on general grounds, and ap- proved, the inquiry was clearly inadmissible on another account, as the answer would go to a forfeiture of the witness's right of suffrage and of citizenship. 5 2 Phil. Evid. 423-428; 1 Stark. Evid. 172; Southard v. Rexford, 6 Cowen, 254. But it should be remembered, that if the question is col- lateral to the issue, the answer cannot be contradicted. In such cases, the prudent practitioner will seldom put a question, unless it be one which, if answered either way, will benefit his client. Such was the question put by the prisoner's counsel, in Rex v. Pitcher, supra, § 458. See 1 C. & P. 85, note (a). CHAP. III.] EXAMINATION OF WITNESSES. 633 with the Jury.^ But in several cases this inference has been repudiated by the Court ; for it is the duty of the Court, as well as the objects of the rule, to protect the witness from disgrace, even in the opinion of the Jury and other persons present ; and there would be an end of this protection, if a demurrer to the question were to be taken as an admission of the fact inquired into.^ § 461. After a witness has been examined in chief, his credit may be impeached in various modes, besides that of exhibiting the improbabilities of a story by a cross-examina- tion. (1.) By disproving- the facts stated by him, by the tes- timony of other witnesses. (2.) By general evidence affect- ing his credit for veracity. But in impeaching- the credit of a witness, the examination must be confined to his general reputation, and not be permitted as to particular facts ; for every man is supposed to be capable of supporting the one, but it is not likely that he should be prepared to answer the other, without notice ; and unless his general character and behavior be in issue, he has no notice.^ This point has been much discussed, but may now be considered at rest* The regular mode of examining into the general reputation is to inquire of the witness whether he knows the general reputa- tion of the person in question among his neighbors ; and 1 1 Stark. Evid. 172; Rose v. Blakemore, Ry. & M. 382, per Brougham, arg. 2 Rose V. Blakemore, Ry. & M. 382, per Abbott, Ld. Ch. J. ; Rex v. Wat- son, 2 Stark. R. 258, per Holroyd, J.; Lloyd v. Passinghamr 1 6 Ves. 64; Supra, § 451. 3 Bull. N. P. 296, 297. The mischief of raising collateral issues is also adverted to as one of the reasons of this rule. " Look ye," said Holt, Ld. C. J., " you may bring witnesses to give an account of the general tenor of the witness's conversation ; but you do not think, sure, that we will try, at this time, whether he be guilty of robbery." Rex v. Rookwood, 4 St. Tr. 681 ; 13 Howell's St. Tr. 211, S. C; 1 Stark. Evid. 182. It is competent, however, for the party against whom a witness has been called, to show that he has been bribed to give his evidence. Attor.-Gen. v. Hitchcock, 11 Jur. 478. * Layer's case, 16 How. St. Tr. 246, 286 ; Swift's Evid. 143. 634 LAW OF EVIDENCE. [PAET III. what that reputation is.-^ In the English Courts the course is further to inquire whether, from such knowledge, the witness would believe that person, upon his oath.^ In the American Courts the same course has been pursued;^ but its propriety has of late been questioned, and perhaps the weight of au- thority is now against permitting the witness to testify as to his own opinion.* In answer to such evidence, the oth^ party may cross-examine those witnesses as to their means of 1 [In Bates «. Barber, 4 Cusb. 107, 108, it was held tbat the preliminary question as to tbe knowledge of tbe reputation need not, and should not, be put] 2 Phil. & Am. on Evid. 925 ; Mawson v. Hartsink, 4 Esp. 104, per Ld. EUenborougb ; 1 Stark. Evid. 182 ; Carlos v. Brook, 10 Ves. 50. 3 The People v. Mather, 4 Wend. 257, 258 ; The State u. Boswell, 2 Dev. R. 209, 211 ; Anon. 1 Hill, S. Car. E. 258 ; Ford v. Ford, 7 Humph. 92. * Gass ti. Stinson, 2 Sumn. 610, per Story, J.; Wood v. Mann, Id. 321; Kimmel v. Kimmel, 3 S. & K. 336-338 ; Wike v. Lightner, 11 S. & R. 198 : Swift's Evid. 143 : Phillips v. Kingfield, 1 Appleton's E. 375. In this last case the subject was ably examined by Shepley, J., who observed : " The opinions of a witness are not legal testimony, except in special cases ; such, for example, as experts in some profession or art, those of the witnesses to a will, and, in our practice, opinions on the value of property. In other caseS, the witness is not to substitute his opinion for that of the Jury; nor are they to rely upon any such opinion instead of exercising their own judgment, taking into consideration the whole testimony. When they have the testi- mony that the reputation of a witness is good or bad for truth, connecting it with his manner of testifying, and with the other testimony in the case, they have the elements from which to form a correct conclusion, whether any and what credit should be given to his testimony. To permit the opinion of a witness, that another witness should not be believed, to be received and acted upon by a Jury, is to allow the prejudices, passions, and feelings of that witness, to form, in part, at least, the elements of their judgment. To authorize the question to be put, whether the witness would believe another witness on oath, although sustained by no inconsiderable weight of authority, is to depart from sound principles and established rules of law, respecting the kind of testimony to be admitted for the consideration of a Jury, and their duties in deciding upon it. It moreover would permit the introduction and indulgence in Courts of Justice of personal and party hostilities, and of every unworthy motive by which man can be actuated, to form the basis of an opinion to be expressed to a Jury to influence their decision." 1 Applet. R. 379. But qucere, whether a witness to impeach reputation may not be asked, m cross-examination, if he would not believe the principal witness on oath. OHAP. III.] EXAMINATION OF WITNESSES. 635 knowledge, and the grounds of their opinion ; or may attack their general character, and by fresh evidence support the character of his own witness.^ The inquiry must be made as to his general reputation, where he is best known. It is not enough that the impeaching witness professes merely to state what he has heard " others say ;" for those others may be but few. He must be able to state what is generally said of the person, by those among whom he dwells, or with whom he is chiefly conversant ; for it is this only that con- stitutes his general reputation or character.^ And, ordinarily, the witness ought himself to come from the neighborhood of the person whose character is in question. If he is a stran- ger, sent thither by the adverse party to learn his character, he will not be allowed to testify as to the result of his in- quiries ; but otherwise, the Court will not undertake to de- termine, by a preliminary inquiry, whether the impeaching witness has sufficient knowledge of the fact to enable him to testify ; but will leave the value of his testimony to be de- termined by the Jury.^ ' 2 Phil. Evid. 432 ; Mawson v. Hartsink, 4 Esp. 104, per Ld. Ellen- borough ; 1 Stark. Evid. 182. It is not usual to cross-examine witnesses to character, unless there is some definite charge upon which to cross-examine them. Rex v. Hodgkiss, 7 C. & P. 298. Nor can such witnesses be contra- dicted as to collateral facts. Lee's case, 2 Lewin, Cr. Cas. 154. [The Court may exercise its discretion in limiting the number of impeaching wit- nesses, and likewise that of the supporting witnesses ; and the proper exer- cise of such discretion is no ground of error. Bunnell v. Butler, 23 Conn. 65. In the Supreme Judicial Court of Massachusetts, the Court at nisi prius has in some cases limited the number to five or six on a side, giving the parties notice beforehand of such intended limitation. In Bunnell v. Butler, vM supra, the number was limited to six on each side, the Court previously- notifying the parties dt the intended limitation.] 2 Boynton v. Kellogg, 3 Mass. 129, per Parsons, C. J. ; Wike v. Lightner, 11 S. & R, 198, 199, 200 ; Kimmel v. Kimmel, 3 S. & R. 337, 338 ; Phillips V. Kingfield, 1 Applet. R. 375. The impeaching witness may also be asked to name the persons whom he has heard speak against the character of the witness impeached. Bates v. Barber, 4 Cush. 107. [Or if the reputation of the witness impeached, relates wholly or in part to his want of punctuality in paying his debts. Pierce v. Newton, 13 Gray, 528.] 3 Douglass V. Tousey, 2 Wend. 35>2 ; Bates v. Barber, 4 Cush. 107 ; Sleeper v. Van Middleaworth, 4 Denio, 431. Whether this inquiry into the 636 LAW OF EVIDENCE. [PART III. § 462. (3.) The credit of a witness may also be impeached by proof, that he has made statements out of Court, contra/ry general reputation or character of the witness should be restricted to his reputation for truth and veracity, or may be made in general terms, involv- ing his entire moral character and estimation in society, is a point upon which the American practice is not uniform. All are agreed, that the true and primary inquiry is into his general character for truth and veracity, and to this point, in the Northern States, it is still confined. But in several of the other States greater latitude is allowed. In South Carolina, the true mode is said to be, first, to ask what is his general character, and if this is said to be bad, then, to inquire whether the witness would believe him on oath ; leaving the party who adduced him to inquire whether, notwithstand- ing his bad character in other respects, he has not preserved his character for truth. Anon. 1 Hill, S. Car. K. 251, 258, 259. In Kentucky, the same general range of inquiry is permitted ; and is thus defended by one of the learned Judges : " Every person conversant with human nature must be ; sensible of the kindred nature of the vices to which it is addicted. So true js this, that, to ascertain the existence of one vice, of a particular character, i is frequently to prove the existence of more, at the same time, in the same ; individual. Add to this, that persons of infamous character may, and do frequently exist, who have formed no character as to their lack of truth ; i and society may have never had the opportunity of ascertaining that they are false in their words or oaths. At the same time, they may be so notori- ously guilty of acting falsehood, in frauds, forgeries, and other crimes, as would leave no doubt of their being capable of speaking and swearing it, I especially as they may frequently depose falsehood with greater security i against detection, than practice those other vices. In such cases, and with '. such characters, ought the Jury to be precluded from drawing inferences : unfavorable to their truth as witnesses, by excluding their general turpi- I tude ? By the character of every individual, that is, by the estimation in , which he is held in the society or neighborhood where he is conversant, his word and his oath are estimated. If that is free from imputation, his testimony weighs well. If it is sullied, in the same proportion his word will be doubted. We conceive it perfectly safe, and most conducive to the purposes of justice, to trust the Jury with a full knowledge of the staniEng of a witness, into whose character an inquiry is made. It will not thence follow, that from minor vices they will draw the conclusion, in evefy instance, that his oath must be discredited, but only be put on their guard to scrutinize his state- ments more strictly; while in cases of vile reputation, in other respects, they would be warranted in disTjelieving him, though he had never been called so often to the book as to fix upon him the reputation of a liar, when on oath." Hume V. Scott, 3 A. K. Marsh. 261, 262, per Mills, J. This decision has been cited and approved in North Carolina, where a similar course prevails. The State v. Boswell, 2 Dev. Law Kep. 209, 210. See also The People ». CHAP. III.] EXAMINATION OF WITNESSES. 637 to what he has testified at the trial. But it is only in such matters as are relevant to the issue, that the witness can be contradicted. And before this can be done, it is generally held necessary, in the case of verbal statements, first to ask him as to the time, place, and person involved in the sup- posed contradiction. It is not enough to ask him the general question,, ^vhether he has ever said so and so, nor whether he has always told the same story ; because it may frequently happen, that, upon the general question, he may not remem- ber whether he has so said ; whereas, when his attention is challenged to particular circumstances and occasions, he may recollect and explain what he has formerly said.^ This Mather, 4 Wend. 257, 258, per Marcy, J. See also 3 Am. Law Jour. 154- 162, N. 8., where all the cases on this point are collected and reviewed. Whether evidence of common prostitution i,9 admissible, to impeach a female witness, quaere. See Commonwealth v. Murphy, 14 Mass. 387 ; 2 Stark. Ev. 369, note (1), by Metcalf, that it is admissible. Spears v. Forrest, 15 Verm. 485, that it is not. [And Commonwealth o. Churchill, 11 Met. 538, that it is not, thus overruling Commonwealth v. Murphy. Teese v. Hunting- ton, 23 How. 2.] 1 Angus V. Smith, 1 M. & Matk. 473, per Tindal, C. J. ; Crowley v. Page, 7 C. & P. 789, per Parke, B. ; Regina v. Shellard, 9 C. & P. 277 ; Regina B. Holden, 8 C. & P. 606 ; Palmer v. Haight', 2 Barb. S. C. R. 210. In the Queen's case, this subject was very much discussed, and the unanimous opinion of the learned Judges was delivered by Abbott, C. J., in these terms : " The legitimate object of the proposed proof is to discredit the wit- ness. Now, the usual practice of the Courts below, and a practice to which we are not aware of any exception, is this : if it be intended to bring the credit of a witness into question by proof of anything that he may have said or declared, touching the cause, the witness is first asked, upon cross-exami- nation, whether or no he has said or declared that which is intended to be proved. If the witness admits the words or declarations imputed to him, the proof on the other side becomes unnecessary ; and the witness has an opportunity of giving such reason, explanation, or exculpation of his con- duct, if any there may be, as the particular circumstances of the transaction may happen to furnish ; and thus the whole matter is brought before the Court at once, which, in our opinion, is the most convenient course. If the witness denies the words or declarations imputed to him, the adverse party has an opportunity afterwards of contending that the matter of the speech or declaration, is such, that he is not to be bound by the answer of the wit- ness, but may contradict and falsify it ; and, if it be found to be such, his proof in contradiction will be received at the proper season. If the witness VOL. I. 54 638 LAW OF EVIDENCE. [PART III. course of proceeding is considered indispensable, from a sense of justice to the witness ; for, as the direct tendency declines to give any answer to the question proposed to him, by reason of the tendency thereof t» criminate himself, and the Court is of opinion that he cannot be compelled to answer, the adverse party has, in this instance, also, his subsequent opportunity of tendering his proof of the matter, which is received, if by law it ought to be received. But the possibility that the witness may decline to answer the question, affords no sufficient reason for not giving him the opportunity of answering, and of offering such explana- tory or exculpatory matter as I have before alluded to ; and it is, in our opinion, of great importance that this opportunity should be thus afforded, not only for the purpose already mentioned, but because, if not given in the first instance, it may be wholly lost ; for a witness, who has been examined, and has no reason to suppose that his further attendance is requisite, often departs the Court, and may not be found or brought back until the trial be at an end. So that, if evidence of this sort could be adduced on the sudden and by surprise, without any previous intimation to the witness or to the party producing him, great injustice might be done ; and, in our opinion, not unfrequently, would be done both to the witness and to the party ; and this not only in the case of a witness called by a plaintiff or prosecutor, but equally so in the case of a witness called by a defendant ; and one of the great objects of the course of proceeding, established in our Courts, is the prevention of surprise, as far as practicable, upon any person who may ap- pear therein." The Queen's case, 2 Brod. & Bing. 313, 314. In the United States, the same course is understood to be generally adopted ; [Conrad v. Griffey, 16 How. U. S. 38; Sprague v. Cadwell, 12 Barb. 516 ; Unis ». Charlton's Adm'r, 12 Gratt. 484; Wright v. Hicks, 15 Geo. 160; Carlisle V. Hunley, 16 Ala. 622; Powell v. State, 19 lb. 577; Drennen v. Lindsey, 15 Ark. 359; Nelson v. State, 2 Swan, 237 ; Galena, &c. R. R. Co. v. Pay, 16 111. 658; Smith v. People, 2 Mich. 415;] except in Maine; Ware i>. Ware, 8 Greenl. 42 ; and perhaps in Massachusetts ; Tucker v. Welsh, 17 Mass. 160. But see Brown v. Bellows, 4 Pick. 188. [In Massachusetts the rule is now settled, that the witness need not be first asked whether he has ever testified differently. Gould v. Norfolk Lead Co. 9 Cush. 338 ; Com- monwealth V. Hawkins, 3 Gray, 463, 464. In the latter case, " BoUes, for the defendant, offered the depositions, taken before the coroner, at the inquest on the body of Leet, for the purpose of contradicting the evidence given by the same witnesses at this trial, when called by the Commonwealth. The attorney-general objected, on the ground that the witnesses sought to be impeached had not been asl^ed, on their examination, whether they had not previously made different statements, nor had their attention in any way been called to their depositions before the coroner. But the Court were of opinion that, for the purpose of impeaching the witnesses, such parts of their depositions were admissible as were contradictory of the evidence giv€n by CHAP. III.] EXAMINATION OF WITNESSES. 639 of the evidence is to impeach his veracity, common justice requires that, by first calling his attention to the subject, he them at the trial; that the uniform practice iu this commonwealth, differing in this respect from that of England, and some of the other States, had been, as stated in Tucker v. Welsh, 17 Mass. 160, to ^.llow the introduction of evidence that a witness had previously made different statements, without first calling his attention to such statements ; that, after such parts had been read, the commonwealth would have the right to require the whole of the former statement to be read, and might recall the witness afterwards to ex- plain the alleged discrepancy. BoUes then proposed to point out to the Jury that these witnesses had omitted, in their testimony before the coroner, material facts to which they had now testified, and which, he argued, were so important that they could not have been omitted then, and remembered now, consistently with the ordinary workings of a good memory and a good conscience. But the Court ruled that those parts only of the testimony be- fore the coroner could be read, for the purpose of impeaching the character of the witness, which went to show a discrepancy or contradiction, as by showing that the witness had given different accounts at different times, by alleging a fact at one time which he denied at another, or by stating it in two ways inconsistent with each other ; and that the mere omission to state a fact, or stating it less fully before the coroner, was not a subject for com- ment to the Jury, unless the attention of the witness was particularly called to it at the inquest ; " and in New Hampshire, Titus v. Ash, 4 Foster, 319 ; and in Connecticut, Hedge v. Clapp, 22 Conn. 622, in which Tucker v. Welsh, 17 Mass. 160, is oited and approved. Kobinson v. Hutchinson, 31 Vt. 443.] The utility of this practice, and of confronting the two opposing witnesses, is illustrated by a case mentioned by Mr. Justice Cowen, in his notes to Phillips on Evidence, Vol. 2, p. 774 (note 553 to Phil. Evid. 308); "in which a highly respectable witness, sought to be impeached through an out-of-door conversation by another witness, who seemed very willing to bring him into a contradiction, upon both being placed on the stand, furnished such a dis- tinction to the latter as corrected his memory, and led him, in half a minute, to acknowledge that he was wrong. The difierence lay in only one word. The first witness had now sworn, that he did not rely on a certain firm as being in good credit ; for he was not well informed on the subject. The for- mer words imputed to him were a plain admission that he was fully informed, and did rely on their credit. It turned out that, in his former conversation, he spoke of a partnership, from which one name was soon afterward with- drawn, leaving him now to speak of the latter firm, thus weakened by the withdrawal. In regard to -the credit of the first firm, he had, in truth, been fully informed by letters. With respect to the last, he had no information. The sound in the titles of the two firms was so nearly alike, that the ear would easily confound them ; and, had it not been for the colloquium thus brought on, an apparent contradiction would doubtless have been kept on foot, for 640 LAW OP EVIDENCE. [PAUT III. • should have an opportunity to recollect the facts, and, if necessary, to correct the statement already given, as well as by a reexamination to explain the nat-ure, circumstances, meaning, and design of what he is proved elsewhere to have said.^ And this rule is extended, not only to contradictory various purposes, through a long trial. It involved an inquiry into a credit which had been given to another, on the fraudulent representations of the defendant." Mr. StaTkie, for a different purpose, mentions another case, of similar character, where the Judge understood the witness to testify that the prisoner, who was charged with forgery, said, " I am the drawer, acceptor, and iudorser of the bill ; " whereas the words were, " I know the drawer, acceptor, and indorser of the bill." 1 Stark. Evid. 484. 1 Regina v. St. George, 9 C. & P. 483, 489; Carpenter v. Wahl, 1] Ad. & El. 803. On this subject, the following observations of Lord Langdale deserve great consideration. "I do not think," said he, " that the veracity or even the accuracy of an ignorant and illiterate person is to be conclu- sively tested by comparing an affidavit, which he has made, with his testi- mony given upon an oral examination in open Court. We have too much experience of the great infirmity of affidavit evidence. When the witness is illiterate and ignorant, the language presented to the Court is not his ; it is, and must be, the language of the person who prepares the affidavit ; and it may be, and too often is, the expression of that person's erroneous infer- ence as to the meaning of the language used by the witness himself; and however carefully the affidavit may be read over to the witness, he may not understand what is said in language so different from that which he is accus- tomed to use. Having expressed his meaning in his own language, and finding it translated by a person on whom he relies, into language not his ' own, and which he does not perfectly understand, he is too apt to acquiesce ; ,' and testimony not intended by him is brought before the Court as his. ; Again, evidence taken on affidavit, being taken ex parte, is almost always incomplete, and often inaccurate, sometimes from partial suggestions, and sometimes from the want of suggestions and inquiries, without the aid of which the witness may be unable to recall the connected collateral circum- stances, necessary for the correction of the first suggestions of his memory, and for his accurate recollection of all that belongs to the subject. For these and other reasons, I do not -think that discrepancies between the affi- davit and the oral testimony of a witness are conclusive against the testimony of the witness. It is further to be observed, that witnesses, and particularly j ignorant and illiterate witnesses, must always be liable to give imperfect or verroneous evidence, even when orally examined in open Court. The nov- ielty of the situation, the agitation and hurry which accompanies it, the /cajolery or intimidation to which the witnesses may be subjected, the want of questions calculated to excite those recollections, which might clear up every difficulty, and the confusion occasioned by cross-examination, as it is CHAP. III.] EXAMINATION OF WITNESSES. 641 statements by the witness, but to other declarations, and to acts done by him, through the medium of verbal communi- cations or correspondence, which are offered with the view either to contradict his testimony in chief, or to prove him a corrupt witness himself, or to have been guilty of attempting to corrupt others.-*- § 463. A similar principle prevails in, cross-examining a witness as to the contents of a letter, or other paper written by him. The counsel will not be permitted to represent, in the statement of a question, the contents of a letter, and to ask the witness whether he wi;ote a letter to any person with such contents, or contents to the like effect ; without having first shown to the witness the letter, and having asked him too often conducted, may give rise to important errors and omissions ; and the truth is to be elicited, not by giving equal weight to every word the wit- ness may have uttered, but by considering all the words with reference to the particular occasion of saying them, and to the personal demeanor and deportment of the witness during the examination. All the discrepancies which occur, and all that the witness says in respect of them, are to be care- ' fully attended to, and the result, according to the special circumstances of each case, may be, either that the testimony must be altogether rejected, on i the ground that the witness has said that which is untrue, either wilfully or under self-delusion, so strong as to invalidate all that he has said ; or else \ the result must be, that the testimony must, as to the main purpose, be admitted, notwithstanding discrepancies which may have arisen from inno- cent mistake, extending to collateral matters, but perhaps not affecting the main question in any important degree." See Johnson v. Todd, 5 Beav. 600-602. See McKinney v. Neil, 1 McLean, 540 ; Hazard v. N. Y. & Providence R. R. 2 R. I. R. 62. 1 See 2 Brod. & Bing. 300, 313 ; 1 Mood. & Malk. 473. If the witness does not recollect the conversation imputed to him, it may be proved by i another witness, provided it is relevant to the matter in issue. Crowley v. Page, 7 C. & P. 789, per Parke, B. The contrary seems to have been ruled some years before, in Pain v. Beeston, 1 M. & Rob. 20, per Tindal, C. J. But if he is asked, upon cross-examination, if he will swear that he has not said so and so, and he answers that he will not swear that he has not, the party cannot be called to contradict him. Long u. Hitchcock, 9 C. & P. 619 ; Supra, § 449. If he denies having made the contradictory state- ments inquired of, and a witness is called to prove that he did, the particu- lar words must not be put, but the witness must be required to relate what . passed. Hallett v. Cousens, 2 M. & Rob. 238. 54* 642 LAW OF EVIDENCE. [PAKT III. I whether he wrote that letter, and his admitting that he wrote it. For the contents of every written paper, according to the ordinary and well-established rules of evidence, are to be proved by the paper itself, and by that alone, if it is in exist- ence.i But it is not required that the whole paper should be shown to the witness. Two or three lines only of a letter may be exhibited to him, and he may be asked, whether he wrote the part exhibited. If he denies, or does not admit that he wrote that part, he cannot be examined as to the contents of such letter, for the reason already given ; nor is the opposite counsel entitled, in that case, to look at the paper.2 And if he admits the letter to be his writing, he cannot be asked whether statements, such as the counsel may suggest, are contained in it, but the whole letter itself must be read, as the only competent evidence of that fact.** According to the ordinary rule of proceeding in such cases, the letter is td be read as the evidence of the cross-examin- ing counsel, in his turn, when he shall have opened his case. But if he suggests to the Court, that he wishes to have the letter read immediately, in order to found certain questions upon its contents, after they shall have been made known to the Court, which otherwise could not well or effectually be done ; that becomes an excepted case ; and for the conven- ient administration of justice, the letter is permitted to be 1 The Queen's case, 2 Brod. & Bing. 286 ; Supra, §§ 87, 88 ; Bellinger v. The People, 8 Wend. 595, 598 ; Rex o. Edwards, 8 C. & P. 26 ; Regina v. Taylor, Id. 726. If the paper is not to be had, a certified copy may be used. Regina v. Shellard, 9 C. & P. 277. So, where a certified copy is in the case for other purposes, it may be used for this also. Davies v. Davies, 9 C. & P. 253. But the witness, on his own letter being shown to him, cannot be asked whether he wrote it in answer to a letter to him of a certain tenor or import, such letter not being produced. See McDonnell v. Evans, 16 Jur. 103, where the rule in question is fully discussed. [Stamper v. Griffin, 12 Geo. 450. If a party, for the purpose of discrediting a witness, by showing a bias, offers in evidence a letter from the witness to himself, he may also for the purpose of explaining it, read a letter from himself to which the letter of the witness is a reply. Trisohet ». Hamilton Insurance Co. 14 Gray, 456.] 8 Regina v. Duncombe, 8 C. & P. 369. 3 Ibid. ; 2 Brod. & Bing. 288. CHAP, III.] EXAMINATION OP WITNESSES. 643 read, as part of the evidence of the counsel so proposing it, subject to all the consequences of its being considered.^ § 464. If the paper in question is lost, it is obvious that the course of examination, just stated, cannot be adopted. In such case, it would seem, that regularly, the proof of the loss of the paper should first be offered, and that then the witness may be cross-examined as to its contents ; after which he may be contradicted by secondary evidence of the contents of the paper. But where this course would be likely. to occasion inconvenience, by disturbing the regular progress of the cause, and distracting the attention, it will always be in the power of the Judge, in his discretion, to prevent this inconvenience, by postponing the examination, as to this point, to some other stage of the cause.^ § 465. A witness cannot be asked on cross-examination, whether he has written such a thirty, stating its particular nature or purport ; the proper course being to put the writ- ing into his hands, and to ask him whether it is his writing. And if he is asked generally, whether he has made represen- tations, of the particular nature stated to him, the counsel will be required to specify, whether the question refers to representations in writing, or in words alone ; and if the for- mer is meant, the inquiry, for the reasons before mentioned, will bfe suppressed, unless the writing is produced.^ But whether the witness may be asked the general question, whether he has given any account, by letter or otherwise, differing from his present statement ; the question being pro- posed without any reference to the circumstance, whether the writing, if there be any, is or is not in existence, or whether it has or has not been seen by the cross-examining counsel ; is a point which is considered still open for discus- sion. But so broad a question, it is conceived, can be of 1 The Queen's case, 2 Brod. & Bing. 289, 290. 2 See McDonnell v. Evans, 16 Jur. 103 ; 11 Com. B. 930. 3 The Queen's case, 2 Brod. & Bing. 292-294. 644 LAW OP EVIDENCE. [PAET III. very little use, except to test the strength of the witness's memory, or his confidence in assertion ; and, as such, it may well be suffered to remain with other questions of that class, subject to the discretion of the Judge.^ § 466. If the memory of the witness is refreshed by a paper put into his hands, the adverse party may cross-examine the witness upon that paper,- without making it his evidence in the cause. But if it be a book of entries, he cannot cross- examine as to other entries in the book without making them his evidence.^ But if the paper is shown to the wit- ness merely to prove the handwriting, this alone does not give the opposite party a right to inspect it, or to cross- examine as to its contents.^ And if the paper is shown to the witness upon his cross-examination, and he is cross- examined upon it, the party will not be bound to have the paper read, until he has entered upon his own case.* § 467. After a witness has been cross-examined respecting a former statement made by him, the party who called him has a right to reexamine him to the same matter.^ The coun- sel has a right upon such reexamination, to ask all ques- tions which may be proper to draw forth an explanation of the sense and meaning of the expressions, used by the wit- ness on cross-examination, if they be in themselves doubt- ful ; and also of the motive by which the witness was in- duced to use those expressions ; but he has no right to go 1 This question is raised and acutely treated, in Phil. & Am. on Evid. 932 -938. See also Regina v. Shellard, 9 C. & P. 277; Regina v. Holden, 8 C. & P. 606. 2 Gregory v. TaTernor, 6 C. & P. 280 ; Supra, § 437, note. And see Ste- phens V. Foster, 6 C. & P. 289. 3 Russell V. Rider, 6 C. & P. 416; Sinclair v. Stevenson, I C. & P. 582; 2 Ring. 514, S. C. ; Supra, § 437, note. 4 Holland v. Reeves, 7 C. & P. 36. 5 In the examination of witnesses in Chancery, under a commission to take depositions, the plaintiff is not allowed to reexamine, unless upon a special case, and then only as to matters not comprised in the former inter- rogatories. King of Hanover v. Wheatley, 4 Beav. 78. ' CHAP. III.] EXAMINATION OF WITNESSES. 645 further and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness.^ This point, after having been much discussed in the Queen's case, was brought before the Court several years afterwards, when the learned Judges held it as settled, that proof of a detached statement, made by a wit- ness at a former time, does not authorize proof, by the party calling that witness, of all that he said at the same time, but only of so much as can be in some way connected with the statement proved.^ Therefore, where a witness had been cross-examined as to what the plaintiff said in a particular conversation, it was held that he could not be reexamined as to the other assertions, made by the plaintiff in the same conversation, but not connected with the assertions to which the cross-examination related ; although the assertions as to which it was proposed to reexamine him were connected with the subject-matter of the suit.^ § 468. If the counsel chooses to cross-examine the witness io facts, which were not admissible in evidence, the other party has a right to reexamine him as to the evidence so given. Thus, where issue was joined upon a plea of prescription, to a declaration for trespass in G., and the plaintiff's witnesses were asked, in cross-examination, questions respecting the 1 Such was the opinion of seven -out of eight Judges, whose opinion was taken in the House of Lords, in the Queen's case, as delivered by Lord Tenterden, 2 Brod. & Bing. 297. The counsel calling a witness who gives adverse testimony, cannot, in reexamination, ask the witness whether he has not given a different account of the matter tb the attorney. Winter V. Butt, 2 M. & Rob. 357. See supra, § 444. See also Hold s worth, w. Mayor of Dartmouth, Id. 153. But he may ask the question, upon his ex- amination in chief. Wright v. Beckett, 1 M. & Rob. 414 ; Dunn v. Aslett, .2.M.,& Rob. 122. 2 Prince v. Samo, 7 Ad. & El. 627. 3 Prince v. Samo, 7 Ad. & El. 627. In this case, the opinion of Lord Tenterden, in the Queen's case, 2 Brod. & Bing. 298, quoted in 1 Stark. Evid. 180, that evidence of the. whole conversation, if connected with the suit, was admissible, though it were of matters not touched in the cross- examination, was considered, and overruled. [Dutton v. Woodman, 9 Cush. 255.] 646 LAW OF EVIDENCE. [PART IH. user in other places than G., which they proved ; it was held that the plaintiff, in reexamination, might show an inter- ruption in the user in such other places.^ But an adverse witness will not be permitted to obtrude such irrelevant mat- ter, in answer to a question not relating to it ; and if he should, the other party may either cross-examine to it, or may apply to have it stricken out of the Judge's notes.^ § 469. Where evidence of contradictory statements by a witness, or of other particular facts, as, for example, that he has been committed to the House of Correction, is offered by way of impeaching his veracity, his general character for truth being thus in some sort put in issue, it has been deemed reasonable to admit general evidence, that he is a man of strict integrity, and scrupulous regard for truth .^ But evi- 1 Blewett V. Tregonning, 3 Ad. & El. 554. a Id. 554, 565, 581, 584. 3 Phil. & Am. on Evid. 944 ; Rex v. Clarke, 2 Stark. K. 241. And see supra, §§ 54, 55; Paine v. Tilden, 5 Washb. 554; Hadjo v. Gooden, 13 Ala. 718 ; Sweet v. Sherman, 6 Washb. 23. [Where a witness admitted on cross-examination, that he had been prosecuted, but not tried, for perjury, the party calling him was not permitted to give evidence of his general good character. People v. Gay, 1 Parker, C. R. 308 ; S. C. 3 Selden, 378; Wertz V. May, 21 Penn. State R. 274. See Harrington v. Lincoln, 4 Gray, 563, 565, .566, 567. In this case a witness was asked in cross-examination, for the avowed purpose of discrediting him, whether he had not been in- dicted and tried for setting fire to his barn, and he answered in the affirma- tive, and also stated that he was acquitted on the trial of the indictment. In reply to this cross-examination and to support the credit of the witness, the party calling him offered evidence as to his reputation for truth and veracity, which was admitted under objection. The full Court decided that the testimony should not have been admitted. Thomas, J., in delivering the opinion of the Court said : " If the cross-examination of the witness showed that he had been charged with the commission of crime, it showed also that upon fair trial he had been fully acquitted. It left his character as it found it. We think, therefore, the evidence as to his reputation for truth and integrity should not have been admitted. Had the effect of the cross-examination been otherwise, we are not prepared to say the reputa- tion of the witness for truth would have been put in issue. The doctrine stated in the text-books has but slight foundation of authority to rest upon, and as matter of reason will not bear a very careful probing. The case, however, does not render a decision of the point necessary. See also CHAP. HI.] EXAMINATION OF WITNESSES. 647 dence, that he has on other occasions made statements, simi- lar to what he has testified in the cause, is not admissible;^ unless where a design to misrepresent is charged upon the witness, in consequence of his relation to the party, or to the cause ; in which case, it seems, it may be proper to show that he made a similar statement before that relation existed.^ So, if the character of a deceased attesting wit- ness to a deed or will is impeached on the ground of fraud, evidence of his general good character is admissible.^ But mere contradiction among witnesses examined in Court, supplies no ground for admitting general evidence a:s to character.* Hey wood v. Keed, 4 Gray, 574. It is admissible to ask a witness if he has not said that he had testified for the defendant, but if called again, he thought he should testify for the plaintiff, and if he does not recollect making such a statement to prove that he did so. Chapman v. Coffin, 14 Gray, 454.] 1 Bull. N. P. 294. See Cooke v. Curtis, 6 H. & J. 93, contra; [Smith .V. Morgan, 38 Maine, 468; Smith v. Stickney, 17 Barb. 489. In Deshon V. Merchants' Ins. Co. 11 Met. 199, 209, it was laid down as a clear rule of law that a witness cannot be allowed to state, on the direct examination, with the view of strengthening his testimony, that he communicated to third personSj at prior times, the same or other particular facts. In Common- wealth V. Wilson, 1 Gray, 340, where in reexamination similar testimony was offered for a like purpose, Shaw, C. J., said, " The rule excluding such testimony is confined to the examination in chief, and does not apply to a case where the other party has sought to impeach the witness on cros.s- examination. The purpose of the cross-examination in this particular having been to impeach the witness, the question may be put." See also Boston & Wore. R. E. Co. «. Dana, 1 Gray, 83, 103.] s 2 Phil. Evid. 445, 446. 3 Doe V. Stephenson, 3 Esp. 284 ; 4 Esp. 50, S. C, cited and approved by Lord EUenborough in The Bishop of Durham v. Beaumont, 1 Campb. 207-210, and in Provis v. Reed, 5 Bing. 135. * Bishop of Durham v. Beaumont, 1 Campb. 207 ; 1 Stark. Evid. 186 ; Russell V. Coffin, 8 Pick. 143, 154 ; Starks v. The People, 5 Denio, 106. 648 LAW OF EVIDENCE. [PAET in. CHAPTER IV. OF WRITTEN EVIDENCE. § 470. Writings are divisible into two classes, namely, Public and Private. The former consists of the acts of public functionaries, in the Executive, Legislative, and Judi- cial Departments of Government, including, under this gen- eral head, the transactions which official persons are required to enter in books or registers, in the course of their public duties, and which occur within the circle of their own per- sonal knowledge and observation. To the same head may be referred the consideration of documentary evidence of the acts of State, the Laws and Judgments of Courts of foreign governments. Public writings are susceptible of another division, they being either (1.) judicial, or (2.) not judicial; and with respect to the means and mode of proving them, they may be classed into, (1.) those which are of record, and (2.) those which are not of record. It is proposed to treat, first, of public documents, and secondly, of those writ- ings which are private. And in regard to both classes, our inquiries will be directed, (1.) to the mode of obtaining an inspection of such documents and writings ; (2.) to the method of proving them ; and, (3.) to their admissibility and effect. § 471. And first, in regard to the inspection of public documents, it has been admitted, from a very early period, that the inspection and exemplification of the records of the King's Counts is the .common right of the subject. This right was extended, by an ancient statute,^ to cases where the subject was concerned against the King. The exercise 1 46 Ed. 3, in the Preface to 3 Coke's Kep. p. iv. CHAP. IV.] PUBLIC DOCUMENTS. 649 of this right does not appear to have been restrained, until the reign of Charles II., when, in consequence of the fre- quency of actions for malicious prosecution, which could not be supported without a copy of the record, the Judges made an order 'for the regulation of the Sessions at the Old Bai- ley, prohibiting the granting of any copy of an indictment for felony, without a special order, upon motion in open Court, at the general jail delivery.^ This order, it is to be observed, relates only to indictments for felony. In cases of misdemeanor, the right to a copy has never been questioned.^ But in the United States, no regulation of this kind is known to have been expressly made ; and any limitation of the right to a copy of a judicial record or paper, when applied for by any person 4iaving an interest in it, would probably be deemed repugnant to the genius of American institutions.^ § 472. Where writs, or other papers in a cause, are officially in the custody of an officer of the Court, he may be compelled by a rule of Court, to allow an inspection of them, even though it be to furnish evidence in a civil action against 1 Orders and Directions, 16 Car. 2, prefixed to Sir J. Kelyng's Keports, Order VIL With respect to the general records of the realm, in such cases, copies are obtained upon application to the Attorney-General. Leggatt v. TfoUerVey, 14 East, 306. But if the copy were obtained without order, it will not, on that account, be rejected. Ibid. ; Jordan v. Lewis, Id. 395, note (b) ; Caddy v. Barlow, 1 M. & Ry. 275. But Lord Chief Justice Willes, in Rex v. Brangam, 1 Leach, Cr. Cas. 32, in the tease of a prosecu- tion for robbery, evidently vexatious, refused an application for a copy of the record, on the ground that no order was necessary ; declaring, that " by the laws of the realm every prisoner, upon his acquittal, had an undoubted right and title to a copy of the record of such acquittal, for any use he might think fit to make of it ; and that, after a demand of it had been made, the proper ofiicer might be punished for refusing to make it out." A strong V doubt of the legality of the order of 16 Car. 2, was also raised in Browne V. Gumming, 10 B. & C. 70. 2 Morrison v. Kelley, 1 W. Bl. 385. 3 Stone V. Crocker, 24 Pick. 88, per Morton, J. The only case, known \ to the author, in which the English rule was acted on, is that of The People V. Pollyon, 2 Caines, 202, in which a copy was moved for and granted. VOL. I. 55 650 LAW OF EVIDENCE. PART III. himself. Thus, a rule was granted against the marshal of the Kings's Bench prison, in an action against him for an escape of one arrested upon mesne process, to permit the plaintiff's attorney to inspect the writ by which he was com- mitted to his custody.^ § 473. In regard to the records of inferior tribunals, the right of inspection is more limited. As all persons have noi necessarily an interest in them, it is not necessary that they should be open to the inspection of all, without distinction. The party, therefore, who wishes, to inspect the proceedings of any of those Courts, should first apply to that Court, showing that he has some interest in the document, and that he requires it for a proper purpose.^ If it should be refused, the Court of Chancery, upon affidavit of the fact, may at any time send, by a writ of certiorari, either for the record itself, or an exemplification. The King's Bench in England, and the Supreme Courts of Common Law in America, have the same power by mandamus ;^ and this whether an action be pending or not.* § 474. There are other records which partake both of a public and private character, and are treated as the one or the other, according to the relation in which the applicant stands to them. Thus, the books of a corporation are public with respect to its members, but private with respect to strangers.^ In regard to its members, a rule for inspection of the writings of the corporation will be granted of course, on their application, where such inspection is shown to be 1 Fox V. Jones, 7 B. & C. 732. 2 If he has no legal interest in the record, the Court may refuse the appli- cation. Powell V. Bradbury, 4 M. G. & So. 641 ; Infra, § 559. 3 Gresley on Evid. pp. 115, 116 ; Wilson v. Rogers, 2 Stra. 1242 ; Eex v. Smith, 1 Stra. 126 ; Rex v. Tower, 4 M. & S. 162 ; Herbert v. Ashburner, 1 Wils. 297; Rex v. Allgood, 7 T. R. 746; Rex v. Sheriff of Chester, 1 Chitty, R. 479. 1 Rex V. Lucas, 10 East, 235, 236, per Lord EUenborough. s Gresley on Evid. 116. chap'. IV.] PUBLIC DOCUMENTS, 651 necessary, in regard to some particular matter in dispute, or where the granting of it is necessary, to prevent the appli- cant from suffering injury, or to enable him to perform his duties ; and the inspection will then be granted, only so far as is shown to be essential to that end.^ But a stranger has no right to such rule, and it will not be granted, even where he is defendant in a suit brought by the corporation.^ In this class of records are enumerated parish books,^ transfer books of the East India Company,* public lottery books,^ the books of incorporated banking companies,^ a bishop's registry of presentation^,^ and some others of the like kind. If an inspection is wanted by a stranger, in a case not within this rule of the Common Law, it can only be obtained by a bill for a discovery ; a Court of Equity permitting a discovery in some cases, and under some circumstances, where Courts of Law will not grant an inspection." And an inspection is granted only where civil rights are depending ; for it is a con- stant and invariable rule, that, in criminal cases, the party shall never be obliged to furnish evidence against himself.^ 1 Rex V. Merchant Tailors' Co. 2 B. & Ad. 115 ; State of Louisiana, ex rel. Hatch v. City Bank of New Orleans, Sup. Court, La., March T. 1842 ; The People v. Throop, 12 Wend. 183. 2 Mayor of Southampton v. Greaves, 8 T. R. 590. The party, in such case, can only give notice to the corporation to produce its books and papers, as in other cases between private persons. See, accordingly, Burrell v. Nicholson, 3 B. & Ad. 649; Bank of Utica v. HilUard, 5 Cowen, 419; 6 Cowen, 62, S. C. ; Imperial Gas Co. v. Clarke, 7 Bing. 95 ; Rex v. Justices of Buckingham, 8 B. & C. 375. 3 Cox V. Copping, 5 Mod. 395 ; Newell v. Simkin, 6 Bing. 565 ; Jacocks V. Gilliam, 3 Murph. 47. 4 Geery v. Hopkins, 2 Lord Raym. 851 ; 7 Mod. 129, S. C; Shelling v. Farmer, 1 Str. 646. 5 Sehinotti v. Bumstead, 1 Tidd's Pr. 594. 6 Brace v. OrmonJ, 1 Meriv. 409; The People v. Throop, 12 Wend. 183 ; Union Bank v. Knapp, 3 Pick. 96; [McKavlin v. Bresslin, 8 Gray, 177] ; Mortimer v. M'Callan, 6 M. & W. 58. 7 Rex V. Bp. of Ely, 8 B. & C. 112 ;' Finch v. Bp.t)f Ely, 2 M. & Ry. 127. 8 Gresley on Evid. 116, 117. 9 Tidd's Pr. 593. Under this rule, an information, in the nature of a quo 652 LAW OF EVIDENCE. [PART III. § 475. Inspection of the books of public officers is subject to the same restriction, as in the case of corporation books ; and access to them will not be granted in favor of persons who have no interest in the books. Thus, an inspection of the books of the post-office has been refused, upon the appli- cation of the plaintiff, in a qui tarn action against a clerk in the post-office, for interfering in the election of a member of parliament, because the action did not relate to any transac- tion in the post-office, for which alone the books were kept.^ Upon the same ground, that the subject of the action was , collateral to the subject-matter and design of the books, an inspection of the books of the custom-house has been re- fused.2 Such inspections are also sometimes refused on grounds of public policy, the disclosure sought being con- sidered detrimental to the public interest. Upon the same principle of an interest in the books, the tenants of a manor are generally entitled to an inspection of the Court-rolls, wherever their own rights are concerned ; but this privilege is not allowed to a stranger.^ § 476. But, in all cases of public writings, if the disclosure of their contents would, either in the judgment of the Court or of the Chief Executive Magistrate, or the head of depart- ment, in whose custody or under whose control they may be kept, be injurious to the public interests, an inspection will not be granted.* § 477. The motion for a rule to inspect and fake copies of books and writings, when an action is pending, may be made at any stage of the cause, and is founded on an affidavit. warranto, is considered as merely a civil proceeding. Rex v. Babb, 3 T. E. 582. See also Rex v. Dr. Purnell, 1 Wils. 239. 1 Crew V. Blackburne, cited 1 Wils. 240; Crew v. Saunders, 2 Str. 1005. ' 2 Atherfold v. Beard, 2 T. E. 610. 3 Rex V. Shelley, 3 T. R. 141 ; Rex v. AUgood, 7 T. R. 746. See Rex v. Hostmen of Newcastle, 2 Stra. 1223, note (1,) by Nolan. * Supra, §§ 250, 251, and cases there cited. CHAP. IV.] PUBLIC DOCUMENTS. 653 stating the circumstances under which the inspection is claimed, and that an application therefor has been made to the proper quarter, and refused.^ § 478. But when no action is pending, the proper course is to move for a rule to show cause why a mandamus should not issue, commanding the officer having custody of the books to permit the applicant to inspect them, and take copies. The application in this case should state some spe- cific object sought by the inspection, and be supported by an affidavit, as in the case preceding. If a rule is made to show cause why an information, in the nature of a quo warranto, should not be filed, a rule for an inspection will be granted to the prosecutor, immediately upon the granting of a rule to show cause. But if a rule be made to show cause why a mandamus should not be awarded, the rule for an inspection will not be granted, until the mandamus has been issued and returned.^ § 479. We proceed now, in the second place, to consider the MPDE OF PROOF of public documents, beginning with those which are not judicial. And first, of acts of State. It , has already been seen, that Courts will judicially take notice of the .political constitution, or frame of the government of their own country, its essential political agents, or officers, and its essential ordinary and regular operations. The great seal of the State and the seals of its judicial tribunals require no proof.^ Courts also recognize, without other proof than inspection, the seals of State of other nations, which have been recognized by their own sovereign. The seals, also, of foreign Courts of Admiralty, and of notaries-public, are re- cognized in the like manner.* Public statutes, also, need 1 Tidd's Pr. 595, 596. [See lasigi v. Brown, 1 Curtis, Ct. Ct. 401 ; Infra, § 559.] 2 1 Tidd's Pr. 596 ; Rex v. Justices of Surrey, Sayer, R. 14.4 ; Rex v. Shelley, 3 T. R. 141 ; Rex v. HoUister, Cas. Temp. Hardw. 245. 3 Wearnaok v. Dearman, 7 Port. 513. 4 Supra, §§ 4, 5, 6 ; Story on Confl. of Laws, § 643 ; Robinson v. Gilman, 55* 654 LAW OP EVIDENCE. [PART III. no proof, being supposed to exist in the memories of all ; but, for certainty of recollection, reference is had either to a copy from the legislative rolls, or to the book printed by public authority.^ Acts of State may be proved by pro- duction of the original printed document, from a press authorized by government.^ Proclamations, and other acts and orders of the Executive, of the like character, may be proved by production of the government Gazette, in which they were authorized to be printed.^ Printed copies of piib- lic documents, transmitted to Congress by the President of the United States, and printed by the printer to Congress, are evidence of those documents.* And here it may be proper to observe, that, in all cases of proof by a copy, if the copy has been taken by a machine, worked by the witness who produces it, it is sufficient.^ The certificate of the Sec- retary of State is evidence that a particular person has been recognized as a foreign minister.® And the certificate of a foreign governor, duly authenticated, is evidence of his own official acts.'^ § 480. Next, as to legislative acts, which consist of statutes, resolutions, and orders, passed by the legislative body. In regard to private statutes, resolutions, &c., the only mode of proof, known to the Common Law, is either by means of a copy, proved on oath to have been examined by the roU i7 Shepl. 299 ; Coit v. Milliken, 1 Denio, 376. A protest of a bill of ex- jehange, in a foreign country, is sufficiently proved by tie seal of the foreign notary. Willes, 550 ; Anon. ] 2 Mod. 345 ; Bayley on Bills, 515 (Phillips & Sewall's ed.) ; Story on Bills, §§ 276, 277 ; La Caygas v. Larionda, 4 Mart. 283. 1 Bull. N. P. 225. 2 Rex V. Withers, cited 5 T. R. 436 ; Watkins v. Holman, 16 Peters, 25. 3 Rex V. Holt, 5 T. R. 436 ; Van Omeron v. Dowick, 2 Campb. 42 ; Bull. N. P. 226 ; Attorney-General v. Theakstone, 8 Price, 89. An ap- pointment to a commission in the army cannot be proved by the Gazette. Rex V. Gardner, 2 Campb. 513; Kirwan v. Cockburn, 6 Esp. 233. See also Rex V. Forsyth, R. & Ry. 274, 275. 4 RadclifFw. United Ins. Co. 7 Johns. 38, per Kent, C. J. 6 Simpson v. Thoreton, 2 M. & Rob. 433. 6 United States v. Benner, 1 Baldw. 238. 1 United States v. Mitchell, 3 Wash. 5. CHAP. IV.] PUBLIC DOCUMENTS. 656 itself; or, by an exemplification under the great seal. But in most if not all of the United States, the printed copies of the laws and resolves of the legislature, published by its authority, are competent evidence either by statute, or judi- cial decision ; and it is sufficient primd facie, that the book purports to have been so printed.^ It is the invariable course of the legislatures of the several States, as well as of the United States, to have the laws and resolutions of each ses- sion printed by authority .^ Confidential persons are selected to compare the copies with the original rolls, and superintend the printing. The very object of this provision is to furnish the people with authentic copies ; and, from their nature, printed copies of this kind, either of public or private laws, are as much to be depended on, as the exemplification, veri- fied by an officer who is a keeper of the record.^ i Young V. Bank of Alexandria, 4 Crancb, 388 ; Biddis v. James, 6 Binn. 321, 326 ; Eex v. Forsyth, Euss. & Ey. 275. See infra, § 489. [As to the effect to be given to the volume termed the " Eevised Statutes of Connecti- cut," see Eld v. Gorham, 20 Conn. 8. The testimony of an attorney at law of another State is not legal evidence of the statute law of that State, where it affects the merits of the ease. Smith v. Potter, 1 Williams, (Vt.) 304. In Massachusetts, it is provided by statute that " all acts of incorpora- tion shall be deemed public acts, and, as such, may be declared on and given in evidence, without specially pleading the same." Kev. Stat. chap. 2, § 3. In Ohio, it is enacted, that in pleading a private statute or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the Court shall thereupon take judicial notice thereof. Eev. Stat, by Curwen, (1854,) Vol. 3, p. 1956.] 2 [The edition of the Laws and Treaties of the United States, published by Little & Brown, is declared to be competent evidence of the several public and private acts of Congress and of the several treaties therein con- tained, in all the Courts of law and equity and of maritime jurisdiction, and in all the tribunals and public offices of the United States, and of the several States, without any further proof or authentication thereof. Stat 1846, ch. c. § 2 ; 9 Stats, at Large, p. 76.] 3 Per Tilghman, C. J., 6 Binn. 326. See also Watkins v. Holman, 16 Peters, 25 ; Holt, C. J., held, that an act, printed by the King's printers, was always good evidence to a Jury; though it was not sufficient upon an issue of nul tiel record. Anon. 2 Salk. 566. [The laws revised and adopted by the territorial legislature of Michigan, in 1827, were the statutes us previously printed. It was held, that the printed book containing the statute is the best evidence of what the statute actually was, and that the original record 656 LAW OF EVIDENCE. [PAET III. § 481. If in a private statute a clause is inserted, that it shall be taken notice of, as if it were a public act ; this not only dispenses with the necessity of pleading it specially but also changes the mode of proof, by dispensing with the production of an exemplified or sworn copy.^ § 482. In regard to the Journals of either branch of the legislature, a former remark^ rnay be here repeated, equally applicable to all other public records and documents, namely, that they constitute an exception to the general rule, which requires the production of the best evidence, and may be proved by examined copies. This exception is allowed, because of their nature, as original public documents, which are not removable at the call of individuals, and, because, being interesting to many persons, they might be necessary., as evidence, in different places at the same time.^ Moreover, these being public records, they would be recognized as such by the Court, upon being produced, without collateral evi- dence of their identity or genuineness ; and it is a general ; rule, that, whenever the thing to be proved would require no ( collateral proof upon its production, it is provable by a copy.* These journals may also be proved by the copies printed by the government printer, by authority of the House.^ § 483. The next class of public writings to be considered, consists of official registers, or books kept by persons in pub- is not to be received to show that the printed book is incorrect, or as evi- dence of the statute as adopted and enacted at that time. Especially will this be so where the error is not discovered for a long time, and the statute is treated and considered as the actual law. Pease v. Peck, 18 How. U. S. 595.] 1 Beaumont v. Mountain, 10 BIng. 404. The contrary seems to have been held in Brett v. Beales, 1 M; & Malk. 421 ; but that case was overruled, as to this point, in Woodward v. Cotton, 1 C. M. & R. 44, 47. 2 Supra, § 91. 3 Ld. Melville's case, 29 Howell's St. Tr. 683-685 ; Kex v. Ld. George Gordon, 2 Doug. 593, and note (3) ; Jones v. Randall, Lofft, 383, 428 ; Cowp. 17, S. C. 4 Rex V. Smith, 1 Stra. 126. 5 Root V. King, 7 Cowen, 613, 636 ; Watkins v. Holman, 16 Peters, 25. CHAP. IV.] PUBLIC DOCUMENTS. 657 lie office, in which they are required, whether by statute or by the nature of their office, to write down particular trans- actions, occurring in the course of their public duties, and under their personal observation. These documents, as well as all others of a public nature, are generally admissible in evidence, notwithstanding their authenticity is not confirmed by those usual and ordinary tests of truth, the obligation of an oath, and the power of cross-examining the persons, on whose authority the truth of the documents depends. The extraordinary degree of confidence, it has been remarked, which is reposed in such documents, is founded principally upon the circumstance, that they have been made by author- ized and accredited agents, appointed for the purpose ; but partly also on the publicity of their subject-matter. Where the particular facts are inquired into and recorded for the benefit of the public, those who are empowered to act in making such investigations and memorials, are in fact the agents of all the individuals who compose the State ; and every member of the community may be supposed to be privy to the investigation. On the ground, therefore,, of the credit due to agents so empowered, and of the public nature of the facts themselves, such documents are entitled to an extraordinary degree of confidence ; and it is not necessary that they should be. confirmed and sanctioned by the ordi- nary tests of truth. Besides this, it would always be diffi- cult, and often impossible, to prove facts of a public nature, by means of actual witnesses upon oath.^ § 484. These books, therefore, are recognized by law, be- cause they are required by law to be kept, because the entries in them are of public interest and notoriety, and because they are made under the sanction of an oath of office, or at least under that of official duty. They belong to a particular custody, from which they are not usually taken but by special authority, granted only in cases where inspection of the book itself is necessary, for the purpose of identifying the book, or the handwriting, or of determining some question arising 1 1 Stark. Evid. 195 ; Supra, § 128. 658 LAW OF EVIDENCE. [PAET III. upon the original entry, or of correcting an error which has been duly ascertained. Books of this public nature, being themselves evidence, when produced, their contents may be proved by an immediate copy duly verified.^ Of this de- scription are parish registers ; ^ the books of the Bank of England, which contain the transfers of public stock ; ^ the transfer books of the East India Company ; * the rolls of Courts baron ; ^ the books which contain the official proceed- ings of corporations, and matters respecting their property, if the public at large is concerned with it;^ books of assess- ment of public rates and taxes ; "^ vestry books ; ^ bishops' registers, and chapter-house registers ;^ terriers ; '" the books of the post-office, and custom-house, and registers of other public offices;" prison registers ; ^^ enrolment of deeds ;i-^ the 1 Lynch i'. Gierke, 3 Salfc. 154, per Holt, C. J.; 2 Doug. 593, 594, note (3). The handwriting of the recording or attesting officer is, prima, facie, presumed genuine. Bryan v. Wear, 4 Mis. 106. 2 2 Phil. Evid. 183-186 ; Lewis v. Marshall, 5 Peters, 472, 475 ; 1 Stark. Evid. 205. See Childress v. Cutter, 16 Mis. 24. 3 Breton v. Cope, Peake's Cas. 30 ; Marsh v. CoUnett, 2 Esp. 655 ; Mor- timer V. M'Callan, 6 M. & W. 68. i 2 Doug. 693, note (3). 5 Bull. N. P. 247; Doe v. Askew, 10 East, 520. S Warriner v. Giles, 2 Stra. 954; Id. 1223, note (1); Marriage v. Law- rence, 3 B. & Aid. 144, per Abbott, C. J.; Gibbon's ease, 17 Howell's St. Tr. 810 ; Moore's case. Id. 854 ; Owings v. Speed, 5 Wheat. 420. 7 Doe V. Seafon, 2 Ad. & El. 171, 178, per Patteson, J.; Doe v. Ark- wright. Id. 182, (note), per Denman, C. J.; Kex v. King, 2 T. R. 234; Ronkendorff v. Taylor, 4 Peters, 349, 360 ; Doe v. Cartwright, Ry. & My. 62. 8 Rex V. Martin, 2 Campb. 100. See, as to Church Records, Sawyer v. Baldwin, 11 Pick. 494. 9 Arnold v. Bishop of Bath and Wells, 5 Bing. 316 ; Coombs v. Coether, 1 M. & Malk. 398. 10 Bull. N. P. 248 ; 1 Stark. Evid. 201. [See infra, § 496.] 11 Bull. N. P. 249 ; Rex v. Fitzgerald, 1 Leach, Cr. Cas. 24 ; Rex v. Rhodes, Id. 29 ; D'Israeli v. Jowett, 1 Esp. 427; Barber v. Holmes, 3 Esp. 190; Wallace v. Cook, 5 Esp. 117; Johnson v. Ward, 6 Esp. 48; Tomkins V. Attor.-Gen. 1 Dow. 404 ; Rex v. Grimwood, 1 Price, 369 ; Henry v. Leigh, 3 Campb. 499 ; United States v. Johns, 4 Dall. 412, 415. 12 Salte V. Thomas, 3 B. & P. 188 ; Rex v. Aikles, 1 Leach, Cr. Cas. 435. 13 Bull. N. P. 229 ; Kinnersley v. Orpe, 1 Doug. 56 ; Hastings v. Blue Hill Tump. Corp. 9 Pick. 80. CHAP. IV.] PUBLIC DOCUMENTS. 659 registers of births and of marriages, made pursuant -to the statutes of any of the United States ;^ the registration of vessels in the custom-house ; ^ and the books of record of the transactions of towns, city councils, and other municipal bodies.^ In short, the rule may be considered as settled, that every document of a public nature, which there would be an i inconvenience in removing, and which the party has a- right | to inspect, may be proved by a duly authenticated copy.* § 485. It is deemed essential to the official character of these books, that the entries in them be made promptly, or at least without such long delay as to impair their credibil- ity, and that they be made by the person whose duty it was 1 Milford V. Worcester, 7 Mass. 48 ; Commonwealth v. Llttlejohii, 1 5 Mass. 163; Sumner v. Sebec, 3 Greenl. 223; Wedgewood's case, 8 Greenl. 75; Jacook V. Gilliam, 3 Murphy, 47 ; Martin v. Gunby, 2 H. & J. 248 ; Jackson V. Boneham, 15 Johns. 226 ; Jackson v. King, 5 Gowen, 237 ; Richmond v. Patterson, 3 Ohio R. 368. 2 United States v. Johns, 5 Dall. 415 ; Colson v. Bonzey, 6 Greenl. 474 ; Hacker v. Young, 6 N. Hamp. 95 ; Coolidge v. N. York Firemen's Ins. Co. 14 Johns. 308 ; Catlett v. Pacific Ins. Co. 1 Wend. 651. 3 Saxton V. Nimms, 14 Mass. 320, 321 ; Thayer v. Stearns, 1 Pick. 309 ; Taylor v. Henry, 2 Pick. 401 ; Denning v. Roome, 6 Wend. 651 ; Dudley V. Grayson, 6 Monroe, 259; Bishop v. Cone, 3 N. Hamp. 513. [The clerk of a city or town is the proper certifying officer to authenticate copies of the votes, ordinances, and by-laws thereof; and such copies are admissible as prima facie evidence, when purporting to be duly attested, without any verification of the clerk's signature. Commonwealth v. Chase, 6 Cush. 248. See also People v. Minck, 7 Smith (N. Y.) 639.] * Gresley on Evid. 115. In some of the United States, office-copies are made admissible by statute. In Georgia, the Courts are e-xpressly em- powered to require the production of the originals, in their discretion. Hotchk. Dig. p. 590. In South Carolina, it has been enacted, that no for- eign testimonial, probate, certificate, &e., under the seal of any Court, Notary, or Magistrate, shall be received in evidence, unless it shall appear that the like evidence from this State is receivable fn the Courts of the foreign State. Statutes at Large, Vol. 5, p. 45. [See Pittsfield, &c., P. R. Co. V. Harrison, 16 111. 81 ; Raymond v. Longworth, 4 McLean, 481. Duly authenticated notarial copies of instruments, the originals of which the party has not the power to produce, by reason of the laws of the country where they were executed, are admissible as secondary evidence. Bowman v. San- born, 5 Foster, (N. H.) 87.] 660 LAW OF EVIDENCE. [PAET III. to make them, and in the mode required by law, if any has been prescribed.^ When the books themselves are produced, they are received as evidence, without further attestation. But they must be accompanied by proof that they come |rom the proper repository.^ Where the proof is by a copy, an examined copy, duly made and sworn to by any compe- tent witness, is always admissible.^ Whether a copy, certi- fied by the officer having legal custody of the book or doc- ument, he not being specially appointed by law to furnish copies, is admissible, has been doubted ; but though there are decisions against the admissibility, yet the weight of authority seems to have established the rule, that a copy given by a public officer, whose duty it is to keep the orig- inal, ought to be received in evidence.* • 1 Doe V. Bray, 8 B. & C. 813 ; Walker v. Wingfield, 18 Ves. 443. A certificate that a certain fact appears of record, is not sufficient. The officer must certify a transcript of the entire record relating to the matter. Owen p. Bo3'le, 3 Shepl. 147. And this is sufficient. Farr v. Swan, 2 Barr, 245. 2 1 Stark. Evid. 202 ; Atkins v. Hutton, 2 Anstr. 387 ; Armstrong v. Hewett, 4 Price, 216; Pulley v. Hilton, 12 Price, 625; Swinnerton v. Marquis of Stafford, 3 Taunt. 91 ; Baillie v. Jackson, 17 Eng. L. & Eq. R. 131. [United States i>. Castro, 24 How. 346.] See supra, § 142, as to the nature of the repository required. 3 [Whitehouse v. Biokford, 9 Foster, 471.] * United States v. Percheman, 7 Peters, 51, 85, [A. D. 1833,] per totam Curiam ; Oakes u. Hill, 14 Pick. 442, 448 ; Abbott on Shipping, p. 63, note 1 (Story's ed.); United States v. Johns, 4 Dall. 412, 415 ; Judice v. Chre- tien, 3 Rob. Louis. R. 15; Wells v. Compton, Id. 171 ; [Warner v. Hardy, 6 Md. 525.] In accordance with the principle of this rule, is the statute of the United States of March 27, 1804, (3 LL. U. S. 621, ch. 40'9, [56,] Bio- Iren's ed.) ; [2 U. S. Stats, at Large, (L. & B.'s edition,) 298] ; by which it is enacted, that " all records and exemplifications of office-books, which are or may be kept in any public office of any State, not appertaining to a /Court, shall be proved or admitted in any other Court or Office in any ' other State, by the attestation of the keeper of the said records or books, i. and the seal of his office thereunto annexed, if there be a seal, together with a certificate of the presiding Justice of the Court of the county or district, as the case may be, in which such office is or may be kept ; or of the Gov- ernor, the Secretary of State, the Chancellor, or the Keeper of the great seal of the State, that the said attestation is m due form, and by the proper officer ; and the said certificate, if given by the presiding Justice of a Court, shall be further authenticated by the Clerk or Prothonotary of the said CHAP. IV.] PUBLIC DOCUMENTS. 661 § 486. In regard to foreign laws, the established doctrine now is, that no Court takes judicial notice of the laws of a foreign country, but they must be proved as facts. And the better opinion seems to be, that this proof mpst be made to the Court, rather than to the Jury. " For," observes Mr. Justice Story, " all matters of law are properly referable to the Court, and the object of the proof of foreign laws is to enable the Court to instruct the Jury what, in point of law, is the result of the foreign law to be applied to the matters in controversy before them. The Court are, therefore, to decide what is the proper evidence of the laws of a foreign country ; and when evidence is given of those laws, the Court are to judge of their applicability, when proved, to the case in hand." ^ § 487. " Generally speaking, authenticated copies of the written laws, or of other public instruments of a foreign government, are expected to be produced. For it is not to be presumed, that any civilized nation will refuse to -give such copies, duly authenticated, which are usual and neces- sary, for the purpose of administering justice in other coun- Court, who shall certify, under his hand and the seal of his office, that thel said presiding Justice is duly commissioned and qualified ; or if the said cer- tificate be given by the Governor, the Secretary of State, the Chancellor or Keeper of the great seal, it shall be under the great seal of the State in which the said certificate is made. And the said records and exemplifica- tions, authenticated as aforesaid, shall have such faith and credit given to them in every Court and Ofiice within the United States, as they have by law or usage in the Courts or Offices of the State, from whence the same are or shall be taken." By another section this provision is extended to the records and public books, &c., of all the Territories of the United States. The earlier American authorities, opposed to the rule in the text, are in accordance with the English rule. 2 Phil. Evid. 130-134. Where the law does not require, or authorize an instrument or matter to be recorded, a copy of the record of it is not admissible in evidence. Eitler w. Shotwell, 7 Watts & Serg. 14; Brown v. Hicks, 1 Pike, 232; Haile v. Palmer, 5 Mia. 403. [See also Kunk v. Ten Eyck, 4 Zabr. (N. J.) 756 ; State v. Cake, lb. 516.] 1 Story on Confl. of Laws, § 638, and cases there cited; [Pickard v. Bailey, 6 Foster, 152;] VOL. I. 56 662 LAW OF EVIDENCE. [PART III. tries. It cannot be presumed, that an application to a for- eign government to authenticate its own edict or law wiU be refused ; but the fact of such a refusal must, if relied on, be proved. But if such refusal is proved, then inferior proofs may be admissible.^ Where our own government has pro- 1 Church V. Hubbart, 2 Cranch, 237, 238. It is now settled in England, upon great consideration, that a foreign written law may be proved by parol evidence of a witness learned in the law of that country ; without first attempting to obtain a copy of the law itself. Baron de Bode v. Reginam, 10 Jur. 217. In this case, a learned French advocate stated, on his cross- examination, that the feudal law, which had prevailed in Alsace, was abol- ished by a general decree of the National Assembly of France, on the 4th of August, 1789. Being asked whether he had read that decree in the books of the law, in the course of his study of the law, he replied that he had ; and that it was part of the history of the law, which he learnt when studying the law. He was then asked as to the contents of that decree ; and the admissibility of this question was the point in judgment: On this point, Lord Denman, C. J., said : " The objection to the question, in what- ever ipode put, is, that it asks tKe witness to give the contents of a written instrument, the decree of 1789, contrary to a general rule, that such evi- dence cannot be given without the production of the instrument, or account- ing for it. In my opinion, however, that question is within another general rule, that, the opinion of skilful and scientific persons is to be received on subjects with which they are conversant. I think that credit must be given to the opinion of legal men, who are bound to know the law of the country in which they practice, and that we must take from them the account of it, whether it be the unwritten law, which they may collect from practice, or the written laws, which they are also bound to know. I apprehend that the evidence sought for would not set feJrth generally the recollection of the witness of the contents of the instrument, but his opinion as to the effect of the particular law. The instrument itself might frequently mislead, and it might be necessary that the knowledge of the practitioner should be called in, to show that the sense in which the instrument would be naturally con- strued by a foreigner, is not its true legal sense. It appears to me that the distinction between this decree and treaties, manorial customs, or acts of common council, is, that, with regard to them, there is no profession of men whose duty it is to make them their study, and that there is, therefore, no person to whom we could properly resort, as skilfully conversant with theni. The cases which have been referred to excite much less doubt in my mind than that which I know to be entertained by one of my learned brothers, to whose opinion we are in the habit of paying more respect than to many of those cases which are most familiarly quoted in Westminster Hall." He then cited and commented on the cases of Boehtlinck v. Schneider, 3 Esp. CHAP. IV.] PUBLIC DOCUMENTS. mulgated any foreign law, or ordinance of a public nature, as authentic, that may, of itself, be sufficient evidence of the actual existence and terms of such law or ordinance." ^ § 488. " In general, foreign laws are required to be verified by the sanction of an oath, unless they can be verified by some high authority, such as the law respects, not less than it respects the oath of an individual.^ The usual mode of 58; Clegg v. Levy, 3 Campb. 166 ; Miller v. Heinrick, 4 Campb. 155; La- con V. Higgins, 3 Stark. 178 ; Gen. Picton's case, 3 Howell, St. Tr. 491 ; and Middleton v. Janverin, 2 Hagg. Cons. E. 437 ; and concluded as follows : " But I look to the importance of. this question in a more extensive point of view. Books of authority must certainly be resorted to, upon questions of foreign law. Pothier, for instance, states the law of France, and he states it as arising out of an ordonnance made in such a year, and he gives his ac- count of that ordonnance ; and are we to say that that would not be taken as evidence of the law of France, because it is an account of the contents of a written document ? Suppose a question to arise suddenly in one of our Courts upon the state of the English law, could a statement in Blackstone's Commentaries, as to what the law is on the subject, and when it was altered to what it now is, be refused ? And it seems to me that the circumstance of the question having reference to the period at which a statute passed, makes no difference. I attach the same credit to the witness giving his ac- count of a branch of the French law, as I should to a book which he might accredit as a book of authority upon the law of France. I find no authority directly opposed to the admissibility of this evidence, except some expres- sions much stronger than the cases warranted or required, and I find some dfecisions which go the whole length in favor of its admissibility ; for I see no distinction between absolute proof by a direct copy of the law itself, and the evidence which is now tendered ; and I think that the general principle to which I have referred establishes the admissibility of it." See 10 Jur. 218, 219 ; 8 Ad. & El. 208, S. C. Williams, J., and Coleridge, J., concurred in this opinion. Patteson, J., dissentiente. See also Cocks u. Purday, 2 C. & K. 269. 1 Story on Confl. of Laws, § 640 ; Talbot v. Seeman, 1 Cranch, 38. The acts of State of a foreign government can only be proved by copies of such acts, properly authenticated. Richardson v. Anderson, 1 Campb. 65 ; note (a.) 2 Church V. Hubbart, 2 Cranch, 237 ; Brackett v. Norton, 4 Conn. 517 ; Hempstead v. Keed, 6 Conn. 480 ; Dyer v. Smith, 12 Conn. 384. But the Court may proceed on its own knowledge of foreign laws, without the aid of other proof; and its judgment will not be reversed for that cause, unless it should appear that the Court was mistaken as to those laws. The State v. 664 LAW OF EVIDENCE. [PAET in. authenticating foreign laws, (as it is of authenticating foreign judgments,) is by an exemplification of a copy, under the great seal of a State ; or by a copy proved to be a true copy, by a witness who has examined and compared it with the original ; or by the certificate of an officer properly author- ized by law to give the copy ; which certificate must itself also be duly authenticated.^ But foreign unwritten laws, customs, and usages, may be proved, and indeed must ordi- narily be proved, by parol evidence. The usual course is,, to make such proof by the testimony of competent witnesses, instructed in the laws, customs, and usages, under oath.^ Sometimes, however, certificates of persons in high author- ity have been allowed as evidence, without other proof.^ § 489. The relations of the United States to each other, in regard to all matters not surrendered to the General Govern- Rood, 12 Verm. 396. [Proof of the written law of a foreign country, may be made by some copy of the law which the witness can swear was recog- nized as authoritative in the foreign country, and which was in force at the time. Spaulding v. Vincent, 24 Vt. 501.] 1 Church V. Hubbart, 2 Cranch, 238 ; Packard v. Hill, 2 Wend. 411; Lin- coln V. Battelle, 6 Wend. 475. 2 Church V. Hubbart, 2 Cranch, 237 ; Dalrymple v. Dalrymple, 2 Hagg. App'x, p. 15-144 ; Brush v. Wilkins, 4 Johns. Ch. 520 ; Mostyn v. Fabrigas, Cowp. 174. It is not necessary that the witness should be of the legal pro- fession. Regina t. Dent, 1 Car. & Kirw. 97. But whether a woman is ad- missible as peritus, qumre. Regina v. Povey, 14 Eng. Law & Eq. R. 549 4 17 Jur. 119. And see Wilcocfcs v. Phillips, Wallace, Jr. 47. In Michigan, the unwritten law of foreign States may be proved by books of reports of cases adjudged in their courts. Rev. Stat. 1846, ch. 102, § 79. So, in Connecticut ; Rev. Stat. 1849, tit. 1, § 1 32. A nd in Massachusetts ; Rev. Stat. 1836, ch. 94, § 60. And in Maine; Rev. Stat. 1840, ch. 133, § 48. And in Alabama; Inge V. Murphy, 10 Ala. R. 885. [Although a point of foreign law has been proved in England, and acted upon in reported cases, the Court will not act upon such decisions without the law being proved in each case as it arises. M'Cormick v. Garnett, 27 Eng. Law & Eq. 339.] 3 Story on Confl. of Laws, §§ 641, 642 ; Id. § 629-640. In re Dormay, 3 Hagg. Eecl. R. 767, 769 ; Rex v. Picton, 30 Howell's State Trials, 515- 673 ; The Diana, 1 Dods. 95, 101, 102. A copy of the code of laws of a foreign nation, printed by order of the foreign government, it seems, is not admissible evidence of those laws ; but they must be proved, as stated in the CHAP. IV.] PUBLIC DOCUMENTS. 665 ment by the National Constitution, are those of foreign States in close friendship, each being sovereign and inde- text. Chanoine v. Fowler, 3 Wend. 173 ; Hill v. Packard, 5 Wend. 375, 384, 389. But see United States v. Glass Ware, 4 Law Reporter, 36, where Betts, J., held the contrary ; the printed book having been purchased of the Queen's priniter. See also Farmers and Blechanics'' Bank v. Ward, Id. 37, S. P. In regard to the effect of foreign Idws, it is generally agreed that they are to govern everywhere, so far as may concern the validity and interpretation of all contracts made under or with respect to them ; where the contract is not contrary to the laws or policy of the country in which the remedy is sought. An exception has been admitted in the case of foreign revenue laws ; of which, it is said, the Courts will not take notice, and which will not be allowed to invalidate a contract made for the express purpose of violating them. This exception has obtained place upon the supposed authority of Lord Hardwicke, in Boucher v. I^wson, Cas. Temp. Hardw. 89, 194, and of Lord Mansfield, in Planche v. Fletcher, 1 Doug. 252. But in the former of these cases, which was that of a shipment of • gold in Portugal, to be delivered in London, though the exportation of gold was forbidden by the laws of Portugal, the judgment was right on two grounds : first, because the foreign law was contrary to the policy and inter- est of England, where bullion was very much needed at that time ; and, secondly, because the contract was to be performed in England ; and the rule is, that the law of the place of performance is to govern. The latter of these cases was an action on a policy of insurance, on a voyage to Nantz, with liberty to touch at Ostend ; the vessel beirig a Swedish bottom, and the voyage being plainly intended to introduce into France English goods, on which duties were high, as Dutch goods, on which much lower duties were charged.- Here, too, the French law of high countervailing duties was con- trary to British interest and policy ; and, moreover, the French ministry were understood to connive at this course of trade, the supply of such goods being necessary for French consuniption. Both these cases, therefore,* may well stand on the ground of the admitted qualification of the general rule ; and the brief general observations of those learned Judges, if correctly reported, may be regarded as ohvler dicta. But it should be remembered, that the language of the learned Judges seems to import nothing more than that Courts will not take notice of foreign revenue laws ; and such seems to have been the view of Lord Denman, in the recent case of Spence v. Chod- wick, 11 Jur. 874, where he said : " We are not bound to take notice of the revenue laws of a foreign country ; but if we are informed of them, thait is another case." And see 10 Ad. & El. 517, N. S. The exception alluded to was tacitly disapproved by Lord Kenyon, in Waymell v. Eeed, 5 T. K. 599, and is explicitly condemned, as not founded in legal or moral prin- ciple, by the best modern Jurists. See Vattel, b. 2, ch. 5, § 64 ; Id. ch. 6, § 72 i Pothier on Assurance, n. 58 ; Marshall on Ins. p. S9-61, 2d ed. ; 66* LAW OF EVIDENCE. [PAET III. pendent.' Upon strict principles of evidence, therefore, the laws and public documents of one State can be proved in the Courts of another, only as other foreign laws. And, accordingly, in some of the States, such proof has been re- quired.2 . But the Courts o'f other States, and the Supreme Court of the United States, being of opinion that the connec- tion, intercourse, and constitutional ties which bind together these several States, require some relaxation of the strictness of this rule, have accordingly held that a printed volume pur- porting on the face of it to contain the laws- of a sister State, is admissible as primd facie evidence, to prove the statute laws of that State.^ The act of Congress * respect- 1 Chitty on Comm. & Manuf. pp. 83, 84 ; 3 Kent, Coram. 266, 267 ; Story, Confl. Laws, § 257*; Story on Bills, §136; Story on Agency, §§ 197,543, note, 2d ed. 1 Infra, § 504. 2 Brackett k Norton, 4 Conn. 517, 521 ; Hempstead v. Keed, 6 Conn. 480; Packard v. Hill, 2 Wend. 411. 3 Young V. Bank of Alexandria, 4 Cranch, 384, 388 ; Thomson v. Musser, 1 Dall. 458, 463 ; Biddis v. James, 6 Binn. 321, 327 ; MuUer v. Morris, 2 Barr, R. 85 ; Eaynham v. Canton, 3 Pick. 293, 296 ; Kean i>. Rice, 12 S. & R. 203 ; The State v. Stade, 1 D. Chipm. 303 ; Comparet v. Jernegan, 6 Blackf. 375 ; Taylor v. Bank of Illinois, 7 Monroe, 585 ; Taylor u. Bank of Alexandria, 5 Leigh, 471 ; Clarke v. Bank of Mississippi, 5 Eng. 516 ; Allen V. Watson, 2 Hill, 319 ; Hale v. Rost, Pennington R. 591 ; [Emery v. Berry, 8 Foster, 473.] But see Van Buskirk u. Mulock, 3 Harrison, R. 185, contra. In some States, the rule stated in the text has been expressly enacted. See Connecticut, Rev. Stat. 1849, tit. 1, § 131 ; Michigan, Rev. Stat." 1846, ch. 102, § 78 ; Mississippi, Hutchins. Dig. 1848, ch. 60, art. 10 ; Missouri, Rev. Stat. 1845, ch. 59, §§ 4, 5, 6 ; Wisconsin, Rev. Stat. 1849, ch. 98, § 54 ; Maine, Rev. Stat. 1840, ch. 133, § 47 ; Massachusetts, Rev. Stat. 1836, ch. 94, § 59 ; New York, Stat. 1848, ch. 312; Florida, Thomps. Dig. p. 342 ; Kean v. Rice, 12 S. & R. 203 ; North Carolina, Rev. Stat. 1837, ch. 44, § 4. The common law of a sister State may be shown by the books of reports of adjudged cases, accredited in that State. Inge v. Murphy, 10 Ala. R. 885. [A book purporting to contain the laws of another State is not admissible in evidence in Texas, unless such book also purport to have been published by the authority of such other State. Martin v. Payne, 11 Texas, 292. And if a volume of laws contains on its title-page the words " By authority," it thereby purports to have been published by the authority of the State. Merrifield v. Robbins, 8 Gray, 150.] 4 Stat. March 27, 1804, cited supra, § 485. CHAP. IV.] PUBLIC DOCUMENTS. 667 ing the exemplification of public office-books, is not under- stood to exclude any other modes of authentication, which the Courts may deem it proper to admit.^ - And in regard to the laws of the States, Congress has provided,^ under the power vested for that purpose by the Constitution, that the acts of the legislatures of the several States shall be authen- ticated, by having the seal of their respective States affixed thereto ; but this method, as in the case of public books just mentioned, is not regarded as exclusive of any other which the States may respectively adopt.^ Under this statute, it is held, that the seal of ^the State is a sufficient authentication, without the attestation of any officer, or any other proof; and it will be presumed, primd facie, that the ^al was affixed by the proper officer.* § 490. The reciprocal relations between the national gov- ernment and the several States, comprising the United States, are not foreign, 'but domestic. Hence, the Courts of the United States take judicial notice of all the public laws of the respective States, whenever they are called . upon to consider and apply them. And, in like manner, the Courts of the several States take judicial notice of all pub- lic acts of Congress, including those which relate exclu- sively to the District of Columbia, without any formal proof.^ But private statutes must be proved in the ordinary mode.^ § 491. We are next to consider the admissibility and effect 1 See cases cited supra, note (2.) 2 Stat. May 26, 1790, 1 LL. U. S. ch. 38, [ll,j p. 102, (Bioren's ed.) ; [1 U. S. Stat, at Large, (L. & B.'s edition,) 122.] 3 Lothrop V. Blake, 3 Barr, 488. * United States v. Amedy, 11 Wheat. 392 ; United States v. Johns, 4 Dall. 412 ; The State v. Carr, 5 N. Hamp. 367. [It must be the seal of the State ; the seal of the Secretary of State is not sufficient, as it cannot be considered the seal of the State. Sisk v. Woodruff, 15 111. 15.] 3 Owens V. Hull, 9 Peters, 607 ; Hinde v. Vattier, 5 Peters, 308 ; Young V. Bank of Alexandria, 4 Cranch, 384, 388 ; Canal Co. v. Railroad Co. 4 G. & J. 1, 63. 6 Leland v. Wilkinson, 6 Peters, 317. 668 LAW OP EVIDENCE, [PART III. of the public documents we have been speaking of, as instru- ments of evidence. And here it may be generally observed, that to render such documents, when properly authenticated, admissible in evidence, their contents must be pertinent to the issue. It is also necessary that the document be made by the person whose duty it was to make it,- and that the matter it contains be such as belonged to his province, or came within his official cognizance and observation. Docu- ments having these requisites are, in general, admissible to prove, either primd facie or conclusively, the facts they recite. Thus, where certain public statutes recited that great outrages had been committed in a certain part of the country, and a public proclamation was issued, with similar recitals, and offering a reward for the discovery and conviction of the perpetrators, these were held admissible and sufficient evi- dence of the existence of those outrages, to support the averments to that effect, in an information for a Ubel on the government in relation to them.^ So, a recital of a state of war, in the preamble of a public statute, is good evidence of its existence, and it wiU be taken notice of vsdthout proof; and this, whether the nation be or be not a party to the war.^ So, also, legislative resolutions are evidence of the public matters which they recite.^ The Journals, also, of either House, are the proper evidence of the action of that House, upon all matters before it* The diplomatic correspondence, communicated by the President to Congress, is sufficient evidence of the acts of foreign governments and function- aries therein recited.^ A foreign declaration of war is suffi- cient proof of the day when the state of war commenced.^ 1 Kex V. Sutton, 4 M. & S. 532. 2 Eex V. De Berenger, 3 M. & S. 67, 69. See also Brazen Nose College V. Bp. of Salisbury, 4 Taunt. 831. 3 Rex V. Francklin, 17 Howell's St. Tr. 637. * Jones V. Randall, Cowp. 17 ; Root v. King, 7 Cowen, 613 ; Spangler v. Jaeoby, 14 111. 299. 5 Radcliff V. United Ins. Co. 7 Johns. 38, 51 ; Talbot v. Seeman, 1 Cranch, 1, 37, 38. 6 Thelluson v. Cosling, 4 Esp. 266 ; Bradley v. Arthur, 4 B. & C. 292, CHAP. IV.] PUBLIC DOCUMENTS. 669 Certified copies, under the hand and seal of the Secretary of State, of the letters of a public agent resident abroad, and of the official order of a foreign colonial governor concerning the sale and disposal of a cargo of merchandise, have been held admissible evidence of those transactions.^ How far diplomatic correspondence may go to establish the facts recited therein, does not clearly appear ; but it is agreed to be generally admissible in all cases ; and to be sufficient evi- dence, whenever the facts recited come in collat^ally, or by way of introductory averment, and are not the principal point in issue before the Jury,^ § 492. The Government Gazette is admissible and suffi- cient evidence of such acts of the Executive, or of the gov- ernment, as are usually announced to the public through that channel, such as proclamations,^ and the like. For besides the motives of self-interest and official djity which bind the publisher to accuracy, it is to be remembered, that intention- ally to publish anything as emanating from public authority, with knowledge that it did not so emanate, would be a misdemeanor.^ But in regard to other acts of public func- tionaries, having no relation to the affairs of government, the Gazette is not admissible evidence.^ § 493. In regard to official registers, we have already stated® the principles on which these books are entitled to credit ; to which it is only necessary to add, that where the books pos- sess all the requisites there mentioned, they are admissible, as competent evidence of the facts they contain. But it is 304. See also Foster, Disc. 1, oh. 2, § 12, that public notoriety is sufficient evidence of the existence of war. 1 Bingham v. Cabot, 3 Dall. 19, 23, 39-41. 2 Radcliff ». United Ins. Co. 7 Johns. 51, per Kent, C. J. 3 Kex V. Holt, 5 T. R. 436,* 443 ; Attorney-General v. Theakstone, 8 Price, 89 ; Supra, § 480, and cases cited in note ; Gen. Picton's case, 30 Howell's St. Tr. 493. * 2 Phil. Evid. 108. 5 Rex V. Holt, 8 T. R. 443, per Ld. Kenyon. 6 Supra, §§ 483, 484, 485. 670 LAW OP EVIDENCE. [PART III. to be remembered that they are not, in general, evidence of any facts not required to be recorded in them,^ and which did not occur in the presence of the registering officer. Thus, a parish register is evidence only of the time of the marriage, and of its celebration de facto ; for these are the only facts necessarily within the knowledge of the party making the entry .^ So, a register of baptism, taken by itself, is evidence only of that fact ; though if the child were proved aliunde to have then been very young, it might afford presumptive evi- dence that it was born in the same parish.^ Neither is the mention of the child's age in the register of christenings, proof of the day of his birth, to support a plea of infancy.* In all these and similar cases, the register is no proof of the identity of the parties there named, with the parties in con- troversy ; but the fact of identity must be established by other evidence.^ It is also necessary, in all these cases, that the register be one which the law requires should be kept, and that it be kept in the manner required by law.^ Thus, 1 Filler V. Shotwell, 7 S. & E. 14 ; Brown v. Hicks, 1 Pike, 232 ; Haile V. Palmer, 5 Mis. 403 ; Supra, § 485. 2 Doe V. Barnes, 1 M. & Rob. 386, 389. As to the kind of books which may be read as registers of marriage, see 2 Phil. Evid. 112, 113, 114. 3 Eex V. North Petherton, 5 B. & C. 508 ; Clark u. Trinity Church, 5 Watts & Serg. 266. * Burghart v. Angerstein, 6 C. & P. 690. See also Rex v. Clapham, 4 C. & P. 29 ; Huet v. Le Mesurier, 1 Cox, E. 275 ; Childress v. Cutter, 16 Mis. 24. 5 Birt V. Barlow, 1 Doug. 170 ; Bain v. Mason, 1 C. & P. 202, and note ; Wedgewood's case, 8 Greenl. 75. 6 See the cases cited supra, § 484, note (10) ; Newham v. Eaithby, 1 Phillim. 315. Therefore the books of the Fleet, and of a Wesleyan chapel have been rejected. Eeed v. Passer, 1 Esp. 213 ; Whittack v. Waters, 4 C. & B. 375. It is said that a copy of a register of baptism, kept in the island of Guernsey, is not admissible ; for which Huet v. LeMesurier, 1 Cox, 275, is cited. But the report of tEat case is short and obscure ; and, for aught appearing to the contrary, the register was rejected only as not competent to prove the age of the person. It is also said, on the authority of Leader v. Barry, 1 Esp. 353, that a copy of a register of a foreign chapel is not evidence to prove a marriage. But this point, also, is very briefly reported, in three lines ; and it does not appear, but that the ground of the CHAP. IV.] PUBLIC DOCUMENTS. 671 also, the registers kept at the navy office are admissible, to prove the death of a sailor, and the time when it occurred ; ^ as well as to show to what ship he belonged, and the amount of wages due to him.^ The prison calendar is evidence to prove the date and fact of the commitment and discharge of a prisoner.^ The books of assessment of public taxes are admissible to prove the assessment of the taxes upon the individuals, and for the property therein mentioned.* The books of municipal corporations are evidence of the elections of their officers, and of other corporate acts there recorded.^ The books of private corporations Eire admissible for similar purposes, between members of the corporation ; for as be- i tween them the books are of the nature of public books.^ | And all the members of a company are chargeable with knowledge of the entries made on their books by their agent, in the course of his business, and with the true meaning of ' those entries, as understood by him.'^ But the books cannot, in general, be adduced by the corporation, in support of its own claims against a stranger.^ § 494. The registry of a ship is not of the nature of the rejection of the register was that it was not authorized or required to be kept, by the laws of France, where the marriage was celebrated, namely, in the Swedish ambassador's chapel, in Paris. And such, probably enough, was the fact. Subsequently an examined copy of a register of marriages in Barbadoes has been admitted. Good u. Good, 1 Gurt. 755. In the United States, an authenticated copy of a foreign register, legally kept, is admissible in evidence. Kingston v. Lesley, 10 S. & E. 383, 389. ' Wallace v. Gook, 5 Esp. 117 ; Barber ». Holmes, 3 Esp. 190. 2 Rex V. Fitzgerald, 1 Leach, Gr. Gas. 24 ; Bex v. Rhodes, Id. 29. 3 Salte i;. Thomas, 3 B. & P. 188 ; Rex v. Aides, 1 Leach, Gr. Gas. 435. * Doe V. Seaton, 2 Ad. & El. 178 ; Doe v. Arkwright, Id. 182, n. ; Rex m. King, 2 T. R. 234 ; Ronkendorff v. Taylor, 4 f eters, 349, 360; Such books are also prima facie evidence of domicile. Doe v. Gart wright, Ry. & M. 6 2 ; 1 G. & P. 218. 5 Rex V. Mai;tin, 2 Gampb. 100. 6 Marriage v. Lawrence, 3 B. & Aid. 144 ; Gibbon's case, 17 IJowell's St. Tr 810. 1 Allen V. Goit, 6 Hill, (N, Y.) Rep. 318. 8 Loudon V. Lynn, 1 H. Bl. 21,4, note (c) ; Gommonwealth v. Woelper, 3 S. & R. 29 ; Highland Turnpike Co. v, Mc,K,ean, 10 Johns. 154. 672 LAW OF EVIDteNCB. [PABT III. public or official registers now under consideration, the entry not being of any transaction, of which the public officer who makes the entry is conusant.. Nor is it a document required by the law of nations, as expressive of the ship's national character. The registry acts are considered as institutions purely local and municipal, for purposes of public policy. The register, therefore, is not of itself evidence of property, except so far as it is confirmed by some auxiliary circum- stance, showing that it was made by the authority or assent of the person named in it, and who is sought to be charged as owner. Without such connecting proof, the register has been held not to be even primd facie evidence, to charge a person as owner ; and even with such proof, it is not conclu- sive evidence of ownership ; for an equitable title in one person may well consist with the documentary title at the custom-house in another. Where the .question of ownership is merely incidental, the register alone has been deemed suffi- cient primd facie evidence. But in favor of the person claiming as owner it is no evidence at all, being nothing more than his own declaration.^ § 495. A ship's log-book, where it is required by law to be kept, is an official register, so far as regards the transactions required by law to be entered in it ; but no further.' Thus, the act of Congress ^ provides, that if any seaman whc has signed the shipping articles, shall absent himself from the ship without leave, an entry of that fact shall be made in the log-book, and the seaman will be liable to be deemed guilty of desertion. But of this fact the log-book, though an indis- pensable document, in making out the proof of desertion, in order to incUr a forfeiture of wages, is never conclusive, but only primd facie evidenee, open to explanation, and to rebut- 1 3 Kent, Comm. 149, 150 ; Weston v. Penniman, 1 Mason,-306, 318, per Story, J. ; Bixby v. The Franklin Ins. Co. 8 Pick. 86 ; Colson v. Bonzey, 6 Greenl. 474 ; Abbott on Shipping, p. 63-66, (Story's ed. and notes) ; Tinkler V. Walpole, 14 East, 226 ; Mclver v. Humble, 16 East, 169 ; Fraser v. Hop- kins, 2 Taunt. 5 ; Jones v. Pitcher, 3 Stewart & Porter, R. 136. 8 Stat. 1790, c. 29, § 5 ; [1 U. S. Stat, at Large, (L. & B.'s ed.) 133.] CHAP, IV.] PUBLIC DOCUMENTS. 673 ting testimony. Indeed, it is in no sense per se evidence, except in the cases provided for by statute ; and therefore it cannot be received in evidence, in favor of the persons con- cerned in making it, or others, except by force of a statute making it so ; though it may be used against any persons to whom it may be brought home, as concerned either in writ- ing or directing what should be contained therein.^ § 496. To entitle a book to the character of an official register, it is not necessary that it be required by an express statute to be kept ; nor that the nature of the office should render the book indispensable. It is sufficient, that it be directed by the proper authority to be kept, and that it be kept according to such directions. Thus, a book kept by the sec- retary of bankrupts, by order of the Lord Chancellor, was held admissible evidence of the allowance of a certificate of bankruptcy .2 Terriers seem to be admitted, partly on the same principle ; as well as upon the ground, that they are admissions by persons who stood in privity with the parties, between whom they are sought to be used.^ § 497. Under this head may be mentioned books and chronicles of public history, as partaking in some degree of the nature of public documents, and being entitled on the same principles to a great degree of credit. Any approved public and general history, therefore, is admissible to prove ancient facts of a public nature, and the general usages and customs of the country.* But in regard to rnatters not of a public 1 Abbott on Shipping, p. 468, note (1), (Story's ed.) ; Ornew. Tbwnsend, 4 Mason, 544 ; Cloutman v. Tunison, 1 Sumner, 373 ; United States v. Gib- ert, 2 Samner, 19, 78 ; Tlie Sociedade Feliz, 1 W. Kob. R. 303, 311. [The Hercules, Sprague's Decisions, 534.] 2 Henry v. Leigh, 3 Campb. 499, 501. 3 By the ecclesiastical canons, an inquify is directed to be made, from time to time, of the temporal rights of the clergyman in every parish, and to be returned into the registry of the bishop. This return is denominated a terrier. Cowel, Int. verb. Terror, soil, calalogus terrarum. Burrill, Law Diet. verb. Terrier. * Bull. N. P. 248, 249 ; Morris v. Harmer, 7 Peters, 554 ; Case of War- voi. I. 57 674 LAW OF EVIDENCE. [PART III. and general nature, such as the custom of a particular town, a descent, the nature of a particular abbey, the boundaries of a county, and the like, they are not admissible.^ § 498. In regard to certificates given by persons in official station^ the general rule is, that the law never allows a certi- ficate of a mere matter of, fact, not coupled with any matter of law, to be admitted as evidence.^ If the person was bound to record the fact, then the proper evidence is a copy of the record, duly authenticated. But as to matters' which he was not bound to record, his certificate, being extra-offi- cial, is merely the statement of a private person, and will therefore be rejected.^ So, where an officer's certificate is made evidence of certain facts, he cannot extend its effect to other facts, by stating those also in the certificate ; but such parts of the certificate will be suppressed.* The same rules are applied to an officer's return.^ ren Hastings, referred to in 30 Howell's St. Tr. 492 ; Phil. & Am. on Evid. p. 606 ; Neal v. Fry, cited 1 Salk. 281 ; Ld. Bridgewater's case, cited Skin. 15. The statements of the chroniclers, Stow and Sir W. Dugdale, were held inadmissible as evidence of the fact, that a person took his seat by special summons to Parliament in the reign of Henry VHI. The Vaux Peerage case, 5 Clark & Pin. 538. In Iowa, books of history, science, and art, and published maps and charts, made by persons indifl'erent between the par- ties, are presumptive evidence of facts of general interest. Code of 1851, § 2492. 1 Stainer v. Droitwich, 1 Salk. 281 ; Skin. 623, S. C. ; Piercy's case, Tho. Jones, 164; Evans v. Getting, 6 C. & P. 586, and note. 2 Willes, 549, 550, per Willes, Ld. Ch. J. 3 Oakes V. Hill, 14 Pick. 442, 448; Wolfe ». Washburn, 6 Cowen, 261 ; Jackson «. Miller, Id. 751; Governor o. McAffee, 2 Dev. 15, 18; United States V. Buforp, 3 Peters, 12, 29 ; [Childress ». Cutter, 16 Mis. 24.] * Johnson v. Hooker, 1 Dal. 406, 40-7 ; Governor v. Bell, 3 Murph. 331 ; Governor v. Jeffreys, 1 Hawks. 297 ; Stewart v. Alison, 6 S. & R. 324, 329 ; Newman v. Doe, 4 How. 522 ; [Brown v. The Independence, Crabbe, 64.] 5 Cator V. Stokes, 1 M. & S. 599 ; Arnold v. Tourtelot, 13 Pick. 172.*- A notary's certificate that no note of a certain description was protested by Mm, is inadmissible. Exchange, &c. Co. of N. Orleans v. Boyce, 3 Rob. Louis. R. 307 ; [Bicknell v. Hill, 33 Maine, 297.] CHAP, v.] RECORDS AND JUDICIAL WRITINGS. 675 CHAPTER V. RECORDS AND JUDICIAL WRITINGS. § 499. The next class of Written Evidence consists of Records and Judicial Writings. And here, also, as in the case of Public Documents, we shall consider, first-, the mode of proving them ; and secondly, their admissibility and effect. § 500. The case of statutes, which are records, has already been mentioned, under the head of legislative act^s, to which they seem more properly to belong, the term record being generally taken in the more restricted sense, with reference to judicial tribunals. It will only be observed, in this place, that, though the Courts will take notice of all public statutes without proof, yet private statutes must be proved, like any other legislative documents, namely, by an exemplification under the great seal, or by an examined copy, or by a copy printed by authority.^ § 501. As to the proofs of records, this is done either by mere production of the records, without more, or by a copy.^ Copies of record are, (1.) exemplifications ; (2.) copies made by an authorized officer; (3.) sworn copies. Exemplifica- tions are either, first, under the great seal ; or, secondly, under the seal of the particular Court where the record remains.^ When a record is the gist of the issue, if it is not in the same 1 [See supra, §§ 480, 481.] ' 2 [Writing done with a pencil is not admissible in public records, nor on I papers drawn to be used in legal proceedings which must become public' records. Meserve v. Hicks, 4 Foster, 295.] 3 Bull. N. P. 227, 228. An exemplification under the great seal is said to be of itself a record of the greatest validity. 1 Gilb. Evid. by Lofft, p. 19, Bull. N. P. 226. Nothing but a record can be exemplified in this manner. 3 Inst. 173. 676 LAW OF EVIDENCE. [PART III. Court, it should be proved by an exemplification.^ -By the course of the Common Law, where an exemplification under the great seal is requisite, the record may be removed into the Court of Chancery, by a certiorari, for that is the centre of all the Courts, and there the great seal is kept. But in the United States,' the great seal being usually if not always kept by the Secretary of State, a different course prevails ; and an exemplified copy, under the seal of the Court, is usu- ally admitted, even upon an issue of nul tiel record, as suffi- cient evidence.^ When the record is not the gist of the issue, • the last-mentioned kind of exemplification is always suffi- cient proof of the record at Common Law.^ § 502. The record itself is produced only when the cause is in the same Court, whose record it is ; or, when it is the subject of proceedings in a superior Court: And in the lat- ter case, although it may by the Common Law be obtained through the Court of Chancery, yet a certiorari may also be issued from a superior Court of Common Law, to an inferior tribunal, for the same purpose, whene\fer the tenor only of the record will suffice ; for in such cases nothing is returned but the tenor, that is, a literal transcript of the record, under the seal of the Court ; and this is sufficient to countervail the plea of nul tiel record.^ Where the record is put in issue in 1 [The rule allowing a copy of a record to be used in evidence is founded on convenience, and when the original record itself is produced, it is the highest evidence, and is admissible. Gray v. Davis, 27 Conn. 447.] 2 Vail r. Smith, 4 Cowen, 71. See also Pepoon v. Jenkins, 2 Johns. Cas. 118; Colem. & Cain, Cas. 136, S. C. In some of the States, copie? of record of tlie Courts of the same State, attested by the clerk, have, either by immemorial usage, or by early statutes, been received as sufficient in all cases. Vance f. Reardon, 2 Nott & McCord, 299 ; Ladd v. Blunt, 4 Mass. 402. Whether the seal of the Court to such copies is necessary, in Massa- chusetts, quaere; and see Commonwealth v. Phillips, 11 Pick. 30. [In Com- monwealth V. Downing, 4 Gray, 29, 30, it is decided that a copy of a record of a Justice of the Peace need not bear a seal ; the Court saying, " it need not bear a seal, nor is it the practice to affix one."] 3 I Gilb. Evid. 26 ; [Tillotson r. Warner, 3 iray, 574, 577.] 4 Woodcrafts. Kinaston, 2 Atk. 317, 318; 1 Tidd's Pr. 398; Butcher & Aldworth's case, Cro. El. 821. Where a domestic record is put in issue by CHAP, v.] EBCOKDS AND JUDICIAL WRITINGS. 677 a superior Court of concurrent jurisdiction and authority, it is proved by an exemplification out of Chancery, being obtained and brought thither by a certiorari issued out of Chancery, and transmitted thence by mittimus} § 303. In proving a record by a copy /under seal, it is to be remembered, that the Courts recognize without proof the seal of State, and the seals of the superior Courts of Justice, and of all Courts, established by public statutes.^ And by parity of reason it would seem, that no extraneous proof ought to be "required of the seal of any department of State, or public office established by law, and required or known to have a seal.^ And here it may be observed, that copies of records and judicial proceedings, under seal, are deemed of higher credit than sworn copies, as having passed under a more exact critical examination.* § 504. In regard to the several States composing the United the plea, the question is tried by the Court, notwithstanding it is a question of fact. And the judgment of a Court of record of a sister State in the Union is considered, for this purpose, as a domestic judgment. Hall v. Williams, 6 Pick. 227 ; Carter v. Wilson, 1 Dev. & Bat. 362. [So is the judgment of a Circuit Court of the United States considered a domestic judgment. Williams v. Wilkes, 14 Penn. State K. 228.] But if it is a foreign record, the issue is tried by the Jury. The State v. Isham, 3 Hawks, 185 ; Adams v. Betz, 1 Watts, 426 ; Baldwin v. Hale, 17 Johns. 272. The reason is, that in the former case the Judges can theinselves have an inspec- tion of the very record. But in the latter, it can only be proved by a copy, the veracity of which is a mere fact, within the province of the Jury. And see Collins o. Matthews, 5 East, 473. But in New York, the 4uestion of! fact, in every case,' is now, by statute, referred to the Jury. Trotter v. Mills, 6 Wend. 612 ; 2 Kev. Stat. 507, § 4, (3d ed.) 1 1 Tidd's Pr. 398. 2 Olive V. Guin, 2 Sid. 146, 146, per Witherington, C. B. ; 1 Gilb. Evid. 19 ; 12 Vin. Abr. 132, 133, tit. Evid. A. b. 69 ; Delafield v. Hand, 3 Johns. 310, 314; Den v. Vreelandt, 2 Halst. 555. The seals of counties Palatinej and of the Ecclesiastial Courts are judicially known, on the same general principle. See also, as to Probate Courts, Chase v. Hathaway, 14 Mass. 222 ; Judge, &c. v. Briggs, 3 N. Hamp. 309. 3 Supra, § 6. 4 2 Phil. Evid. 130 ; Bull. N. P. 227. 57 * 678 LAW OF EVIDENCE. [PABT III. States, it has already been seen, that though they are sover- eign and independent, in all things not surrendered to the national' government by the Constitution, and, therefore, on general principles, are liable to be treated by each other in all other respects as foreign States, yet their mutual relations are rather those of domestic independence, than of foreign alienation.^ It is accordingly provided in the Constitution, that " full faith and credit shall be given, in each State, to the public acts, records, and judicial proceedings of every other State. And the Congress may,' by general laws, pre- scribe the manner in which such acts, records, and proceed- ings shall be proved, and the effect thereof."^ Under this provision it has been enacted, that " the records and judicial proceedings of the Courts of any State shall be proved or admitted, in any other Court within the United States, by the attestation of the Clerk and the seal of the Court annexed, if there be a seal, together with a certificate of the Judge, Chief Justice, or presiding Magistrate, as the case may be, that the. said attestation is in due form. And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every Court within the United States, as they have by law or usage in the Courts of the State, from whence said records are or shall be taken." ^ By a subsequent act, these pro- visions are extended to the Courts of all Territories, subject to the jurisdiction of the United States.* § 505. It seems to be generally agreed, that this method of authentication, as in the case of public documents before mentioned, is not exclusive of any other, which the States . may think proper to adopt.^ It has also been held, that these 1 Mills u. Duryee, 7 Cranch, 481 ; Hampton v. McConnel, 3 'Wheat. 234 ; Supra, § 489. 2 Const. U. S. Art. iv. § 1. 3 Stat. U. S. May 26, 1790, 2 LL. U. S. ch. 38, [11,] p. 102 (Bioren's ed.) ; 1 U. S. Stat, at Large, (L. & B.'s ed.) 122.] 4 Stat. U. S. March 27, 1804, 3 LL. U. S. ch. 409, [56,] p. 621 (Bioren's ed.) ; [2 U. S. Stats, at Large, (L. & B.'s ed.) 298.] 5 Kean v. Rice, 12 S. & K. 203, 208; The State v. Stade, 1 D. Chipm. CHAP, v.] RECORDS AND JUDICIAL WRITINGS. 679 Acts of Congress do not extend to judgments in cases, so as to render a witness incompetent in one State, who has been convicted of an infamous crime in another.' The judicial proceedings referred to in these acts, are also generally understood to be the proceedings of Courts of general jurisdiction, and not those which are merely of municipal authority ; for it is required that the copy of the record shall be certified by the Clerk of the Court, and that there shall also be a certificate of the Judge, Chief Justice, or presiding Magistrate, that the attestation of the Clerk is in due form. This, it is said, is founded on the supposition that the Court, whose proceedings are to be thus authenti- cated, is so constituted as to admit of such officers ; the law having wisely left the records of magistrates, who may be vested with limited judicial authority, varying in its objects and extent in every State, to be governed by the laws of the State, into which they may be introduced for the purpose of being carried into effect.^ Accordingly it has been held, that the judgments of Justices of the Peace are not within the meaning of these constitutional and statutory provisions.^ But the proceedings of Courts of Chancery, and of Probate, as well as of the Courts of Common Law, may be proved in the manner direqted by the statute.^ 303 ; Raynham v. Canton, 3 Pick. 293 ; Biddis v. James, 6 Binn. 321 ; Ex parte Povall, 3 Leigh's R. 816 ; Pepoon v. Jenkins, 2 Johns. Cas. 119 ; Ell- more V. Mills, 1 Hayw. 369 ; Supra, § 489 ; Rev. Stat. Mass. eh. 94, §§ 57, 59, 60, 61. 1 Commonwealth v. Green, 17 Mass. 515; Supra, § 376, and cases there cited. 2 Warren v. Flagg, 2 Pick. 450, per Parker, C. J. 3 Warren v. Flagg, 2 Pick. 448 ; Robinson v. Prescott, 4 N. Hamp. 450 ; Mahurin u. Bickford, 6 N. Hamp. 567; Silver Lake Bank v. Harding, 5 Ohio R. 645 ; Thomas v. Robinson, 3 Wend. 267. In Connecticut and Ver- mont, it is held, that if the Justice is bound by law to keep a record of his proceedings, they are within the meaning of the act of Congress. Bissell v. Edwards, 5 Day, 363; Starkweather v. Loomis, 2 Verm. 573 ; Blodget v. Jordan, 6 Verm. 680 ; [Brown v. Edson, 23 Vt. 435.] See ace. Scott v. Cleaveland, 3 Monroe, 62. 4 Scott V. Blanchard, 8 Martin, N. S. 303; Hunt v. Lylfe, 8 Yerg. 142; Barbour v. Watts, 2 A. K. Marsh. 290, 293 ; Balfour v. Chew, 5 Martin, 680 LAW OF EVIDENCE. [PART III. § 506. Under these provisions it has been held, that the attestation of the copy must be according to the form used in the State, from which the record comes ; and that it must be certified to be so, by the presiding Judge of the same Court, the certifi.eate of the clerk to that effect being insufficient.' Nor will it suffice for the Judge simply to certify that the person who attests the copy is the' clerk of the Court, and that the signature is in his handwriting.^ The seal of the Court must be annexed to the record with the certificate of the clerk, and not to the certificate of the Judge.^ If the Court, whose record is certified, has no seal, this fact should appear, either in the certificate of the clerk, or in that of the Judge.* And if the Court itself is extinct, but its records and jurisdiction have been transferred by law to another Court, it seems that the clerk and presiding Judge of the latter tribunal are competent to make the requisite attesta- tions.^ If the copy produced purports to be a record, and not a mere transcript of minutes from the docket, and the clerk certifies " that the foregoing is truly taken from the record of the proceedings " of the Court, and this attestation is certified to be in due form of law, by the presiding Judge, it will be presumed that the paper is a full copy of the entire record, and will be deemed sufficient.^ It has also been held, that it must appear from the Judge's certificate, that at the N. S. 517; Johnson v. Kanneb, 6 Martin, N. S. 621 ; Ripple v. Ripple, 1 Rawle, 386 ; Craig v. Brown, 1 Peters, C. C. R. 352. 1 Drummond v. Magrauder, 9 Crancli, 122 ; Craig v. Brown, 1 Pet. C. C. R. 352. The Judge's certificate is the only competent evidence of this fact. Smith V. Blagge, 1 Johns. Cas. 238. And it is conclusive. Ferguson v. Harwood, 7 Cranch, 408. 2 Craig V. Brown, 1 Pet. C. C. R. 352. [It should also state that the at- testation of the clerk is in due form. Shown v. Barr, 11 Ired. 296.] 3 Turner v. Waddington, 3 Wash. 126. And being thus aflaxed, and cer- tified by the clerk, it proves itself. Dunlap v. Waldo, 6 N. Hamp. 450. * Craig V. Brown, 1 Pet. C. C. R. 352 ; Kirkland v. Smith, 2 Martin, N. S. 497. 5 Thomas v. Tanner, 6 Monroe, 52. 6 Fergusoii v. Harwood, 7 Cranch, 408; Edmiston v. Schwartz, 13 S. & R. 135 ; Goodman u. James, 2 Rob. Louis. 297. CHAP, v.] RECORDS AND JUDICIAL WRITINGS. 681 time of certifying he is the presiding Judge of that Court ; a certificate that he is " the Judge that presided " at the time of the trialj or that he is " the senior Judge of the Courts of Law " in the State, being deemed insufficient.^ The clerk also who certifies the record, must be the clerk himself of the same Court, or of its successor, as above mentioned ; the certificate of his under clerk, in his absence, or of the clerk of any other tribunal, office, or body, being held incompetent for this purpose.^ § 507. An office copy of a record is a copy authenticated by an officer intrusted for that purpose ; and it is admitted in evidence upon the credit of the officer without proof that it has been actually examined.** The rule on this subject is, that an office copy, in the same Court, and in the same cause, is equivalent to the record ; but in another Court, or in another cause in the. same Court, the copy must be proved.* But the latter part of this rule is applied only to copies, made out by an officer having no other authority to make them, than the mere order of the particular Court, made for the convenience of suitors ; for if it is made his duty by law to furnish copies, they are admitted in all 1 Stephenson v. Bannister, 3 Bibb, 369 ; Kirkland v. Smith, 2 Martin, N. S. 497; [Settle <\ Alison, 8 Geo. 201.] 2 Attestation by an under clerk is insufficient. Samson v. Overton, 4 Bibb, 409. So, by late clerk not now in office. Donohoo v. Brannon, 1 Overton, 328. So, by clerk of the Council, in Maryland. Schnertzell v. Young, 3 H. & McHen. .502. See further, Conkling's Practice, p. 256 ; 1 Paine & Duer's Practice, 480, 481. [The authentication of the record of a judgment rendered in another State, is not impaired by the addition of a superfluous certificate, if it is duly accredited by the other certificates required by law. Young V. Chandler, 13 Bellows, 252.] 3 2 Phil. Evid. 131 ; Bull. N. P. 229. * Denn v. Pulford, 2 Burr. 1179, per Ld. Mansfield. Whether, upon trial at law of an issue out of Chancery, office copies of depositions in the same cause in Chancery are admissible, has been doubted ; but the better opinion is, that they are admissible. , Highfield v. Peake, 1 M. & Malk. 109, (1827) ; Studdy V. Sanders, 2 D. & Ey. 347; Hennell v. Lyon, 1 B. & Aid. 142; Contra, Burnand v. Nerot, 1 C. & P. 578, (1824.) 682 LAW OP EVIDENCE. [PART III. Courts under the same jurisdiction. And we have ah-eady seen, that in the United States an officer having the legal custody of public records, is, ex officio, competent to certify copies of their contents.^ § 508. The proof of records, by an examined copy, is by producing a witness who has compared the copy with the original, or with what the officer of the Court or any other person read, as the contents of the record. It is not neces- sary for the persons examining to exchange papers, and read them alternately both ways.^ But it should appear that the record, from which the copy was taken, was found in the proper place of deposit, or in the hands of the officer, in whose custody the records of the Court are kept. And this cannot be shown by any light, reflected from the record it- self, which may have been improperly placed where it was found. Nothing can be borrowed ex visceribus judicii, until the original is proved to have come from the proper Court.^ And the record itself must have been finally completed, before the copy is admissible in evidence. The minutes from which the judgment is made up, and even a judgment in paper, signed by the master, are not proper evidence of the record.* 1 Supra, § 485. But his certificate of the substance or purport of the record is inadmissible. McGuire v, Sayward, 9 Shepl. 230. 2 Reid V. Margison, 1 Campb. 469 ; Gyles v. Hill, Id. 471, n.; Fyson v. Kemp, 6 C. & P. 71; Eolf v. Dart, 2 Taunt. 52; Hill v. Packard, 5 Wend. 387 ; Lynde v. Judd, 3 Day, 499. 3 Adamthwaite v. Synge, 1 Stark. B. 183; [Woods «. Banks, 14 N. Hamp. 101.] 4 Bull. N. P. 228 ; Rex v. Smith, 8 B. & C. 341 ; Godefroy v. Jay, 3 C. & P. 192; Lee v. Meeoock, 5 Esp. 177; Rex v. Bellamy, Ry. & M. 171; Porter v. Cooper, 6 C. & P. 354. But the minutes of a judgment in the House of Lords are the judgment itself, which it is not the practice to draw up in form. Jones v. Randall, Cowp. 1 7. [The clerk's docket is the record until the record is fully extended, and the same rules of presumed verity apply to it as to the record. Every entry is a statement of the act of the Court, and must be presumed to be made by its direction, either by a par- ticular order for that entry, or by a general order, or by a general and recognized usage and practice, which presupposes such an order. Read v. CHAP, v.] RECORDS AND JUDICIAL WRITINGS. 683 § 509. If the record is lost, and is ancient, its existence and contents may sometimes be presumed ; ^ but whether it be ancient or recent, after proof of the loss, its contents may be proved, like any other document, by any secondary evidence, where the case does not, from its nature, disclose the exist- ence of other and better evidence.^ § 510. A verdict is sometimes admissible in evidence, to prove the finding of some matter of reputation, or custom, or particular right. But, here, though it is the verdict, and not the judgment, which: is the material thing to be shown, yet the rule is, that, where the verdict was returned to a Court having power to set it aside, the verdict is not admis- sible, without producing a copy of the judgment rendered upon it ; for it may be that the judgment was arrested, or that a new trial was granted. But this rule does not hold in the case of a verdict upon an issue out of Chancery, because it is not usual to enter up judgment in such cases.^ Sutton, 2 Cush. 115, 123; Sayles v. Briggs, 4 Met. 421,424; Tillotson v. Warner, 3 Gray, 574, 577. Where it is the practice of the clerks to extend the judgment of the Courts from the minutes and papers on file, the record thus extended is deemed by the Court the original record. Willard v. Har- vey, 4 Foster, 344.] 1 Bull. N. P. 228 ; Greene o. Proude, 1 Mod.417, per Lord Hale. 2 See supra, § 84, note (2), and cases there cited. See also Adams v. Betz, 1 Watts, 425, 428; Stookbridge v. West Stockbridge, 12 Mass. 400; Donaldson v. Winter, 1 Miller, R. 137 ; Neweomb v. Drummond, 4 Leigh, 57; Bull. N. P. 228; Knight i). Dauler, Hard. 323; Anon. 1 Salk. 284, cited per Holt, C. J. ; Gore v. Elwell, 9 Shepl. 442. [A paper, certified by a Justice of the Peace to be a copy of a record of a case before him, is admissible ill evidence of such proceedings, although made by him after the loss of the original, and pending a trial in which he had testified to its con- tents. Tillotson V. Warner, 3 Gray, 574, 577. The contents of a complaint and warrant, in a criminal case, lost after being returned into Court, may be! proved by secondary evidence ; and witnesses to prove its contents may| state the substance thereof without giving the exact words. Commonwealth ' V. Boark, 8 Cush. 210, 212. See also Simpson v. Norton, 45 Maine, 281 ; Hall V. Manchester, 40 N. H. 410.] 3 Bull. N. P. 234 ; Pitton v. Walter, 1 Stra. 162 ; Fisher v. Kitchingman, Willes, 367; Ayrey v. Bavenport, 2 New Rep. 474; Donaldson u. Jude, 2 Bibb, 60. Hence it is not necessary, in New York, to produce a copy of 684 LAW OF EVIDENCE. [PART III. Neither does it apply where the object of the evidence is merely to establish the fact that the verdict was given, with- out regard to the facts found by the Jury, or to the subse- quent proceedings in the cause.^ And where, after verdict in ejectment, the defendant paid the plaintiff's costs, and yielded up the possession to him, the proof of these facts, and of the verdict, has been held suflBcient to satisfy the rule, without proof of a judgment.^ § 511. A decree in Chancery may be proved by an exem- plification, or by a sworn copy, or by a decretal order in paper, with proof of the bill and answer.^ And if the bill and answer are recited in the order, that has been held suffi- cient, without other proof of them.* But though a former decree be recited in a subsequent decree, this recital is not proper evidence of the former.® The general rule is, that, where a party intends to avail himself of a decree, as an adjudication upon the subject-matter, and not merely to prove collaterally that the decree was made, he must show the proceedings upon which the decree was founded. " The whole record," says Chief Baron Comyns, " which concerns the matter in question, ought to be produced." ^ But where the judgment upon a verdict given in a Justice's Court, the Justice not having power to set it aside. Felter v. Mulliner, 2 Johns. 181. In North Carolina, owing to an early looseness of practice in making up the record, a copy of the verdict ' is received without proof of the judgment ; the latter being presumed, until the contrary is shown. Deloah v. Worke, 3 Hawks, 36. See also Evans v. Thomas, 2 Stra. 833; Dayrell v. Bridge, Id. 1264; Thurston u. Slatford, 1 Salk. 284. If the docket is lost before the record is made up, it will be considered as a loss of the record. Pruden v. Alden, 22 Pick. 184. 1 Barlow v. Dupuy, 1 Martin, N. S. 442. 2 SohaefTer v. Kreitzer, 6 Binn. 430. 3 Trowell v. Castle, 1 Keb. 21, confirmed by Bailey, B., in Blower v. HoUis, 1 Cromp. & Mees. 396 ; 4 Com. Dig. 97, tit. Evidence, C. 1 ; Gresley on Evid. p. 109. 4 Bull. N. P. 244 ; 1 Keb. 21. 5 Winans v. Dunham, 5 Wend. 47 ; Wilson v. Conine, 2 Johns. 280. 6 4 Com. Dig. tit. Evidence, A. 4 ; 2 Phil. Evid. 188, 139. The rule equally applies to decrees of the Ecclesiastical Courts. Leake v. Marquis of Westmeath, 2 M. & Rob. 394. CHAP, v.] EBCOllDS AND JUDICIAL WRITINGS. 685 the decree is offered merely for proof of the res ipsa, namely, the fact of the decree, here, as in the case of verdicts, no proof of any other proceeding is required.^ The same rules apply to sentences in the Admiralty, and to judgments in Courts Baron, and other inferior Courts.^ § 512. The proof of an answer in Chancery, may, in civil cases, be made by an examined copy.^ Regularly, the an- swer cannot be given in evidence without proof of the bill also, if it can be had.* But in general, proof of the decree is not necessary, if the answer is to be used merely as the party's admission under oath, or for the purpose of contra- dicting him as a witness, or to charge him upon an indict- ment for perjury. The absence of the bill, in such cases, goes only to the effect and value of the evidence, and not to its admissibility.^ In an indictment for perjury in an answer, it is considered necessary to produce the original answer, together with proof of the administration of the oath ; but of this fact, as well as of the place where it was sworn, the certificate of the master, before whom it was sworn, his signatiire also being proved, is sufficient primd facie evidence.^ The original must also be produced on a trial for forgery. In civil cases, it will be presumed that the answer was made upon path.'' But whether the answer be proved by production of the original, or by a copy, and in whatever case, some proof of. the identity of the party wiU be requisite. This may be by proof of his handwriting ; 1 Jones V. Kandall, Cowp. 1 7. 2 4 Com. Dig. 97, 98, tit. Evidence, C. 1. 3 Ewer V. Ambrose, 4 B. & C. 25. 4 1 Gilb. Evid. 55, 66 ; Gresley on Evid. pp. 108, 109. 5 Ewer V. Ambrose, 4 B. & C. 25 ; Rowe v. Brenton, 8 B. & C. 737, 765 ; Lady Dartmouth v. Roberts, 16' East, 334, 339, 340. 6 Bull. N. P. 238, 239 ; Rex v. Morris, 2 Burr. 1189 ; Rex v. Benson, 2 Campb. 508 ; Rex v. Spencer, Ry. & M. 97. The jurat is not conclusive as to the place. Rex v. Embden, 9 East, 437. The same strictness seems to be fequired in an action on the case for a malicious criminal prosecution. 16 East, 340 ; 2 Phil. Evid. 140. Bed qucere. 7 Bull. N. P. 238. vol.. I. 58 686 LAW OP EVIDENCE. [PART III. which was the reason of the order in Chancery requiring all defendants to sign their answers ; or it may be by any other competent evidence.^ § 513. The judgments of inferior Cowts axe usually proved by producing from the proper custody the book containing the proceedings. And as the proceedings in these Courts are not usually made up in form, the minutes, or examined copies of them, will be admitted, if they are perfect.* If they are not entered in books, they may be proved by the officer of the Court, or by any other competent person.^ In either case, resort will be had to the best evidence, to estab- lish the tenor of the proceedings ; and, therefore, where the course is to record them, which will be presumed until the contrary is shown, the record, or a copy, properly authenti- cated, is the only competent evidence.* The caption is a 1 Rex V. Morris, 2 Burr. 1189 ; Rex v. Benson, 2 Campb. 508. It seems that slight evidence of identity will be deemed prima, facie sufficient. In Hennell v. Lyon, 1 B. & Aid. 182, coincidence of name, and character as administrator, was held sufficient ; and Lord EUenborough thought, that co- incidence of name alone ought to be enough to call upon the party to show that it was some other person. See also Hodgkinson v. Willis, 3 Campb. 401. 2 Arundel v. White, 14 East, 216 ; Fisher v. Lane, 2 W. Bl. 834 ; Rex v. Smith, 8 B. & C. 342, per Lord Tenterden. [The original papers and record of proceedings in insolvency, deposited in the proper office and pro- duced by the proper officer, are admissible in evidence equally with certified copies thereof, although such certified copies are made prima facie evidence by statute. Odiorne v. Bacon, 6 Cush. 185. See also Miller v. Hale, 26 Penn. State R. 432.] 3 Dyson v. Wood, 3 B. & Co. 449, 451. 4 See, as to Justices' Courts, Mathews v. Houghton, 2 Fairf. 377; Hol- comb V. Cornish, 8 Conn. 375, 380; Wolf v. Washburn, 6 Cowen, 261 ; Webb V. Alexander, 7 Wend. 281, 286. As to Probate Courts, Chase v. Hathaway, 14 Mass. 222, 227 ; Judge of Probate u- Briggs, 3 N. Hamp. 309. As to Justices of the Sessions, Commonwealth v. Bolkom, 3 Pick. 281. [The copy of a record of a Justice of the Peace need not, in Massachusetts, bear a seal. Commonwealth «. Downing, 4 Gray, 29, 30. And a copy of the record of a case before a Justice of the Peace, described as such in the record, is sufficiently attested, if attested by him as " Justice " without adding thereto the words " of the Peace." lb. The contents of a Justices' record should be proved by au authenticated copy. His certificate alleging CHAP, v.] RECORDS AND JUDICIAL WRITINGS. 687 necessary part of the record ; and the record itself, or an ex- amined copy, is the only legitimate evidence to prove it.^ § 514. The usual modes of authenticating foreign judg- ments are, either by an exemplification of a copy under the great seal of a State ; or by a copy, proved to be a true copy by a witness who has compared it with the original; or by the certificate of an officer, properly authorized by law to give a copy ; which' certificate must itself also be duly au- thenticated.^ If the copy is certified under the hand of the Judge of the Court, his handwriting must be proved.^ If the CoTirt has a seal, it ought to be affixed to the copy, and proved ; even though it be worn so smooth, as to make no distinct impression.* And if it is clearly prbved that the Court has no seal, it must be shown to possess some other requisites to entitle it to credit.^ If the copy is merely cer- tified by an officer of the Court, without other proof, it is inadmissible.^ what facts appear by the record is not receivable as proof. English v. Sprague, 33 Maine, 440. See also as to records of a Justice of the Peace, Brown v. Edson, 23 Vt. 325. A record made by a Justice of the Peace, or by a Justice of a Police Court in a criminal case, which does not state that an appeal was claimed from his decision by the party convicted, is conclusive evidence, in an action brought against the Justice for refusing to allow the appeal and committing the party to prison, that no such appeal was claimed. Wells V. Stevens, 2 Gray, 115, 118. See also Kendall w. Powers, 4 Met. 553.] 1 Rex V. Smith, 8 B. & C. 341, per Bayley, J. 2 Church V. Hubbart, 2 Cranch, 228, per Marshall, C. J. ; Supra, § 488, and cases there cited. Proof by a witness, who saw the clerk affix the seal of the Court, and attest the copy with his own name, the witness having assisted him to compare it with the original, was held sufficient. Buttrick V. Allen, 8 Mass. 273. So, where the witness testified that the Court had no seal. Packard v. Hill, 7 Cowen, 434. 3 Henry v. Adey, 3 East, 221 ; Buchanan v. Rucker, 1 Campb. 63. The certificate of a notary-public, to this fact, was deemed sufficient, in Yeaton V. Fry, 5 Cranch, SS* * Cavan v. Stewart, 1 Stark. R. 525 ; Flindt v. Atkins, 3 Campb. 215, n. ; Gardere v. Columbian Ins. Co. 7 Johns. 614. 5 Black V. Ld. Braybrook, 2 Stark. R. 7, per Ld. EUenborough ; Packard V. Hill, 7 Cowen, 434. 6 Appleton V. Ld. Braybrook, 2 Stark. R. 6 ; 6, M. & S. 34, S. C. ; 688 LAW OF EVIDENCE. [pART III. § 515. In cases of inquisitions post mortem, and other pri- vate offices, the return cannot be read, without also reading the commission. But in cases of more general concern, the commission is of such public notoriety, as not to require proof.^ § 516. With regard to the proof of depositions in Chancery, the general rule is, that they cannot be read, without proof of the bill and answer, in order to show that there was a cause depending, as well as who were the parties, and what was the subject-matter in issue. If there were no cause depending, the depositions are but voluntary affidavits ; and if there were one, still the depositions cannot be read, unless it be against- the same parties, or those claiming in privity with them.^ But ancient depositions, given when it was not usual to enroll the pleadings, may be read without antecedent proof.^ They may also be read upon proof of the bill, but without proof of the answer, if the defendant is in contempt, or has had an opportunity of cross-examining, which he chose to forego.* And no proof of the bill or answer is necessary, where the deposition is used against the deponent, as his own declaration or admission, or for the purpose of Thompson v. Stewart, 3 Conn. 171. [Where a copy of a judgment recov- ered in Canada, was certified by A, as clerk, and purported to be under the seal of the Court, and a witness testified that he had long known A in the capacity of clerk, and that he helped him to compare the copy with the original, and knew it to be correct, and from his acquaintatice with the seal of the Court, he knew that the seal affixed to the copy was genuine, it was held, that the copy was sufficiently authenticated. Pickard v. Bailey, 6 Foster, 152. A copy of the civil code of France, purporting to be printed at the royal press in Paris, and received in the course of our international exchanges, with the indorsement " La Garde des Sc6aux de France k la cour Supreme des Etats Unis," is admissible in the Courts of the United States as evidence of the law of France. Ennis v. Smith, 14 How. U. S. 400.] • 1 Bull. N. P. 228, 229. 2 2 Phil. Evid. 149 ; Gresleyon Evid. 185 ; 1 Gilb. Evid. 56, 57. 3 1 Gilb. Evid. 64 ; Gresley on Evid. 185 ; Bayley v. Wylie, 6 Esp. 85. * Cazenove v. Vaughan, 1 M. & S. 4 ; Carrington v. Carnock, 2 Sim. 567. CHAP, v.] EBCOBDS AND JUDICIAL WRITINGS. contradicting him as a witness.^ So, where an issue is directed out of Chancery, and an order is made there, for the reading of the depositions upon the trial of the issue, the Court of Law will read them upon the order, without antecedent proofs of the bill and answer, provided the wit- nesses themselves cannot be produced.* § 517. Depositions taken upon interrogatories, under a special commission, cannot be read without proof of the commission, under which they were taken ; together with the interrogatories, if they can be found. The absence of the interrogatories, if it renders the answers obscure, may destroy their effect, but does not prevent their being read.^ Both depositions and affidavits, taken in another domestic tribunal, may be proved by examined copies.* § 518. Testaments, in England, are proved in the Eccle- siastical Courts ; and in the United States, in those Courts which have been specially charged with the exercise of this branch of that jurisdiction ; generally styled Courts of Pro- bate, but in some States known by other designations, as Orphans' Courts, &c. There are two modes of proof, name- ly, the common form, which is upon the oath of the executor alone, before the Court having jurisdiction of the probate of wUls, without citing the parties interested ; and the more solemn form of law, per testes, upon due notice and hear- ing of all parties concerned.^ The former mode has, in the United States, fallen into general disuse. By the Common Law, the Ecclesiastical Courts have no jurisdiction of mat- ters concerning the realty ; and therefore the probate, as far 1 Highfield v. Peake, 1 M. & Malk. 109 ; Supra, § 512. 2 Palmer v. Ld. Aylesbury, 15 Ves. 176 ; Gresley on Evid. 185 ; Bayley »: Wylie, 6 Esp. 85. 3 Eowe V. Brenton, 8 B. & C. 737, 765. * Supra, §§ 507, 508 ; Highfield v. Peake, 1 M. & Malk. 110. In crimi- nal cases, some proof of identity of the person is requisite. Supra, § 512. 5 2 Bl. Comm. 508. 58* 690 LAW OF EVIDENCE. [PART III. as the realty is concerned, gives no validity to the will.^ But in most of the United States, the probate' of the will has the same effect, in the case of real estate, as in that of the personalty; and where it has not, the effect will be stated hereafter.^ This being the case, the present general course is to deposit the original will in the registry of the Court of Probate, delivering to the executor a copy of the will, and an exemplification of the decree of allowance and probate. And in aU cases, where the Court of Probate has jurisdic- tion, its decree is the proper evidence of the probate of the will, and is proved in the same manner as the decrees and judgments of other Courts.^ A Court of Common Law will not take notice of a will, as a title to personal property, un- tU it has been thus proved* and where the will is required to be originally proved to the Jury, as documentary evidence of title, it is not permitted to be read, unless it bears the seal of the Ecclesiastical Court, or some other mark of authenti- cation.^ § 519. Letters of administration are granted under the seal of the Court, having jurisdiction of the probate of wiUs ; and the general course in the United States, as in the case of wills, is to pass a formal decree to that eflFect, which is entered in the book of records of the Court. The letter of administration, therefore, is of the nature 6f an exemplifica- tion of this record, and as such is received without other proof. But where no formal record is drawn up, the book of Acts, or the original minutes or memorial of the appoint- 1 Hoe V. Melthorpe, 3 Salk. 154 ; Bull. N. P. 245, 246. a See infra, § 550, and Vol. 2, tit. Wills, § 672. 3 Supra, § 501-509, 513; Chase v. Hathaway, 14 Mass. 222, 227; Judge of Probate v. Briggs, 3 N. Hamp. 309 ; Farnsworth v. Briggs, 6 N. Hamp. 561. ' Stone V. Forsyth, 2 Doug. 707. The character of executor may be proved by the Act-book, without producing the probate of the will. Cox v. AUingham, Jacob, R. 514. And see Doe v. Mew, 7 Ad. & El. 239. B Eex V. Barnes, 1 Stark. R. 243 ; Shumway v. Holbrook, 1 Pick. 114. See further 2 Phil. Evid. 172 ; Gorton v. Dyson, 1 B. & B. 221, per Rich- ardson, J. CHAP, v.] KECOKDS AND JUDICIAL WRITINGS. 691 ment, or a copy thereof duly authenticated, will be received as competent evidence.^ § 520. Examinations of prisoners in criminal cases, are usually proved by the magistrate or clerk who wrote them down.^ But there must be antecedent proof of the identity of the prisoner and of the examination. If the prisoner has subscribed the examination with his name, proof of his hand- writing is sufficient evidence that he has read it ; but if he has merely made his mark, or has not signed it at all, the magistrate br clerk must identify the prisoner, and prove that the writing was duly read to him, and that he assented to it.3 § 521. In regard to the proof of writs, the question whether this is to be made by production of the writ itself, or by a copy, depends on its having been returned or not. If it is only matter of inducement to the action, and has not been returned, it may be proved by producing it. But after the writ is returned, it has become matter of record, and is to be proved by a copy from the record, this being the best evidence.* K it cannot be found after diligent search, it may be proved by secondary evidence, as in other cases.^ The fact, however, of the issuing of the writ may sometimes be proved by the admission of the party against whom it is 1 The practice on this subject is various in the different States. See Dickenson v. McCraw, 4 Kand. 158 ; Seymour v. Beach, 4 Verm. 49.3 Jackson v. Robinson, 4 Wend. 436 ; Farnsworth v. Briggs, 6 N. Hamp. 561 Hoskins v. Miller, 2 Devereaux, 360; Owings v. Beall, l«Littell, 257, 259 Browning v. Huff, 2 Bailey, 174, 179; Owings v. Hull, 9 Peters, 608, 626. See also Bull. N. P. 246 ; Elden v. Keddel, 8 Bast, 187 ; 2 M. & S. 567, per Bayley, J. ; 2 PhiLEvid. 172, 173; i' Stark. Evid. 255. 2 2 Hale, P. C. 52, 284. 3 See supra, §§ 224, 225, 227, 228. 4 Bull. N. P. 234 ; Poster v. trull, 12 Johns. 456 ; Pigot v. Davis, 3 Hawks, 25 ; Frost v. Shapleigh, 7 Greenl. 236 ; Brush u. Taggart, 7 Johns. 19 ; Jen- ner v. JoUiffe, 6 Johns. 9. 5 Supra, § 84, note (2). ' 692 LAW OP BVIDBH-CB. [PAKT lU. to be proved.^ And the precise time of suing it out may be shown by parol.^ § 522. We proceed in the next place, to consider the ADMISSIBILITY AND EFFECT OF RECORDS, as instruments of evidence. The rules of law upon this subject are founded upon these evident principles, or ajcioms, that it is for the interest of the community that a limit should be prescribed to litigation ; and that the same cause of action ought not to be brought twice to a final determination. Justice requires that eyery cause be once fairly and impartially tried ; but the public tranquillity demands that, having been once so tried, all litigation of that question, and between those par- ties, should be closed forever. It is also a most obvious principle of justice, that no man ought to be bound by pro- ceedings to which he was a stranger ; but the converse of this rule is equally true, that by proceedings to which he was not a stranger, he may well be held bound. § 523. Under the teixn parties, in this connection, the law includes all who are directly interested in the subject-matter, and had a right to make defence, or to control the proceed- ings, and to appeal from the judgment. This right involves also the right to adduce testimony, and to cross-examine the witnesses adduced on the other side. Persons not having these rights are regarded as strcmgers to the cause.^ But to 1 As, in an action by the officer against the bailee of the goods attached, . for which he has given a forthcoming obligation, reciting the attachment. Lyman v. Lyman, 1 1 Mass. 317 ; Spencer v. Williams, 2 Verm. 209 ; Lowry V. Cady, 4 Vermf 504 ; Foster v. Trull, 12 Johns. 456. So where the sheriff is sued for an escape, and has not returned the precept on which the arrest was made. Hinman v. Brees, 13 Johns. 529. ■» 2 Lester v. Jenkins, 8 B. & C. 339 ; Morris v. Pugh, 3 Burr. 1241 ; Wil- ton V. Girdlestone, 5 B. & Aid. 847; Michaels v. Shaw, 12 Wend. 587; Allen V. Portland Stage Co. 8 Greenl. 507 ; Taylor v. Dundass, 1 Wash. 94. 3 Duchess of Kingston's case, 20 Howell's St. Tr. 538, n. ; Carter v. Ben- nett, 4 Flor.' Rep. 352. Where a father, during the absence of his minor son from the country, commenced an action of crim. con. as his prochein amy, the judgment was held conclusive against the son, after his majority ; CHAP, v.] RECORDS AND JUDICIAL WRITINGS. 693 give full effect to the principle by which parties are held bound by a judgment, all persons who are represented by the parties, and claim under them, or in privity with them, are equally concluded by the same proceedings. We have already seen, that the term privity denotes mutual or suc- cessive relationship to the same rights of property.^- The ground, therefore, upon which persons standing in this rela- tion to the litigating party are bound by the proceedings, to which he was a party, is, that they are identified with him in interest ; and wherever this identity is found to exist, all are alike concluded. Hence all privies, whether in estate, in blood, or in law, are estopped from litigating that which is conclusive upon him with whom they are in privity .^ And if one covenants for the results or consequences of a suit between others, as if he covenants that a certain mortgage, assigned by him, shall produce a specified sum, he thereby connects himself in privity with the proceedings, and the record of the judgment in that suit will be conclusive evi- dence against him.^ the prochein amy having been appointed by the Court. Morgan v. Thome, 9 Dowl. 228. In New York, a judgment in an action on a joint obligation is \ conclusive evidence of the liability of those only who were personally served I with the process. 2 Rev. Stat. 574, 3d ed. [It. is a general and established rule of law that when a party's right may be collaterally affected by a judg- i ment, which for any cause is erroneous and void, but which he cannot bring j a writ of error to reverse, he may, without reversing it, prove it so erroneous ( and void in any suit in which its validity is drawn in question. By Met- calf, J., in Vose v. Morton, 4 Cush. 27, 31.] 1 Supra, § 189. See also §§ 19, 20. ' 2 Carver v. Jackson, 4 Peters, 85, 86 ; Case v. Reeve, 14 Johns. 81. See also Kinnersley v. Wm. Orpe, 2 Doug. 517; expounded in 14 Johns. 81, 82, by Spencer, J. [A privy by representation as an executor, administrator, or assignee, is bound by a judgment against his principal. Chapin v. Cur- tis, 23 Conn. 388. A judgment on the merits against a master, in an action of trespass, for the act of his servant, is a bar to an action against the ser- vant for the same act, though such judgment was not rendered till after the general issue was pleaded to the action against the servant, and parol evi- dence is admissible to show that the same matter is in controvery in both actions. Emery v. Fowler, 39 Maine, 326.] 3 Rapelye v. Prince, 4 Hill, R. 119. 694 LAW OP BviDBJsrcB. [part in. § 524. But to prevent this rule from working injustice, it is held essential that its operation be mutual. Both the liti- gants must be ^like concluded, or the proceedings cannot be set up as conclusive upon either. For if the adverse party was not also a party to the judgment offered in evidence, it may have been obtained "upon his own testimony ; in which case, to allow him to derive a benefit from it would be un- just.i Another quahfication of the rule is, that a party is not to be concluded by a judgment in a prior suit or prose- cution, where, from the nature or course of the proceedings, he could not avail himself of the same means of defence, or of redress, which are open to him in the second suit.^ § 525. An apparent exception to this rule, as to the iden- tity of the parties, is allowed in the cases usually termed proceedings in rem ; which include not only judgments of condemnation of property, as forfeited or as prize, in the Exchequer or Admiralty, but also the decisions of other Courts directly upon the personal status, or relations of the party, such as marriage, divorce, bastardy, settlement, and the like. These decisions are binding and conclusive, not only upon the parties actually litigating in the cause, but upon all others ; partly upon the ground that, in most cases of this kind, and especially in questions upon property seized and proceeded against, every one who can possibly be affected by the decision, has a right to appear and assert his own rights, by becoming an actual party to the proceedings ; and partly upon the more general ground of public policy and convenience, it being essential to the peace of society, that questions of this kind should not be left doubtful, but that the domestic and social relations of every member of the community should be clearly defined and conclusively settled and at rest.^ 1 Wood V. Davis, 7 Cranch, 271 ; Da-vis v. Wood, 1 Wheat. 6. 2 1 Stark. Evid. 214, 215. 3 1 Stark) Evid. 27, 28. [The decree of a Court of competent jurisdic- tion dismissing for want of proof a hbel filed by a wife against her husband, after having left his house, for a divorce from bed and board for extreme CHAP, v.] KECORDS AND JUDICIAL WEITINaS. 695 § 526. A further exception is admitted in the case of ver- dicts and judgments upon subjects of a public nature, such as customs, and the like ; in most of all of which cases, evi- dence of reputation is admissible ; and also in cases of judg- ments in rem, which may be again mentioned hereafter.^ § 527. A judgment, when used by way of inducement, or to establish a collateral fact, may be admitted, though the parties are not the same. Thus, the record of a conviction cruelty, is not conclusive evidence of her having unjustifiably left his house, in ax} action by a third person against him for necessaries furnished the wife. Burlen v. Shannon, 3 Gray, 387, 389. In giving the opinion of the Court iu this case, Shaw, C. J., said : — " We have no doubt that a decree upon a libel for divorce, directly deter- mining the status of the parties, that is, whether two persons are or are not husband and wife ; or, if they have been husband and wife, that such a decree divorcing them, either a vinculo or a mensa, would be conclusive of the fact in all Courts and everywhere, that they are so divorced. If it were alleged that a marriage was absolutely void, as being within the degrees of consanguinity, a decree of this Court, on a libel by one of the parties against the other, adjudging the marriage to be void, or valid, would be conclusive everywhere. So, under the Rev. Sts. 76, § 4, where one party alleges and the other denies the subsistence of a valid marriage between them, the ad- judication of the competent tribunal would be conclusive. The legal, social relation and condition of the parties, as being husband and wife or otherwise, divorced or otherwise, is what we understand by the term status. To this extent the decree in question had its full effect, by which every party is bound. It did not establish, but it recognized and presupposed the relation of husband and wife as previously subsisting; and as the final judgment was, that the grounds on which a divorce a mensa was claimed were not estab- lished iu proof, and the libel was dismissed, which was a final judgment, no change in the status of the parties was effected, and they stood, after the judgment, in the relation in which they stood at the commencement of the suit — that of husband and wife. Beyond this legal effect of a judgment in a case for divorce — that of determining the status of the parties — the law applies, as in other judicial proceedings, viz. ; that a judgment is not evidence in another suit, except in cases iu which the same parties or their privies are litigating in regard to the same subject of controversy." Authenticated copies of decrees of certain Courts in the Russian province , of Lithuania, on a question of pedigree, of which they have jurisdiction, are conclusive evidence of the facts adjudicated against all the world. Ennis v. Smith, 14 How. U. S. 400.] 1 Seie infra, §§ 541, 542, 544, 555. 696 . LAW OF EVIDENCE. [PART III. may be shown, in order to prove the legal infamy of a wit- ness. So, it may be shown, in order to let in the proof of what was sworn at the trial; or to justify proceedings in execution of the judgment. So, it may be used to show that the suit was determined ; or, in proper cases, to prove the amount which a principal has been compelled to pay for the default of his agent ; or, the amount which a surety has been compelled to pay for the principal debtor ; and, in gen- eral, to show the fact, that the judgment was actually ren- dered at such a time, and for such an amount.^ § 527 >fl. A record may also be admitted in evidence in favor of a stranger, against one of the parties, as containing a solemn admission, or judicial declaration by such party, in regard to a certain fact. But in that case it is admitted not as a judgment conclusively establishing the fact, but as the deliberate declaration or admission of the party himself that the fact was so. It is therefore to be treated according to the principles governing admissions, to which class of evi- dence it properly belongs. Thus, where a carrier brought trover against a person to whom he had delivered the goods intrusted to him, and which were lost, the record in this suit was held admissible for the owner, in a subsequent action brought by him against the carrier, as amounting to a con- fession in a Court of record, that he had the plaintiff's goods.2 So, also, where the plaintiff", in an action of trespass quare clausum /regit, claimed title by disseisin, against a grantee of the heirs of the disseisee, it was held, that the count in a writ of right sued by those heirs against hini, might be given in evidence, as their declaration and admis- sion that their ancestor died disseised, and that the present plaintiff" was in possession.^ So, where two had been sued 1 See further infra, §§ 538, 539 ; Lock v. Winston, 10 Ala. 849 ; King v. Chase, 15 N. Hamp. R. 9 ; Green v. New River Co. 4 T. R. 589 ; [Cham- berlain V. Carlisle, 6 Foster, 540 ; Key v. Dent, 14 Md. 86.] 2 Tiley v. Cowling, 1 Ld. Raym. 744, per Holt, C. J. ; Bull. N. P. 243, S. C; Parsons v. Copeland, 33 Maine, 370. 3 Robinson v. Swett, 3 Greenl. 316 ; Supra, § 195 ; Wells v. Compton, 3 Kob. Louis. R. 171. And see Kellenberger v. Sturtevant, 7 Cush. 465. CHAP, v.] RBCOEDS AND JUDICIAL WRITINGS. 697 as partners, and had suffered judgment by default, the record was held competent evidence of an admission of the partner- ship, in a subsequent action brought by a third person against them as partners.^ And on the same ground, in a libel by a wife for a divorce, because of the extreme cruelty of the hus- band, the record of his conviction of an assault and battery upon her, founded upon his plea of guilty, was held good evidence against him, as a judicial admission of the fact. But if the plea had been not guilty, it' would have been otherwise.^ § 528. The principle upon which judgments are held con- clusive upon the parties, requires that the rule should apply only to that which was directly in issue, and not to every- thing which was incidentally brought into controversy during the trial. We have seen that the evidence must correspond with the allegations, and be confined to the point in issue. It is only to the material allegations of one party that the other can be called to answer ; it is only upon such that an issue can properly be formed ; to such alone can testimony be regularly adduced; and upon such an issue only is judg- ment to be rendered. A record, therefore, is not held con- clusive as to the truth of any allegations, which were not material nor traversable ; but as to things material and trav- ersable, it is conclusive and final. The general rule, on this subject was laid down with admirable clearness, by Lord Chief Justice De Grey, in the Duchess of Kingston's case,^ and has been repeatedly confiirmed and followed, without qualification. " From the variety of cases," said he, " rela- tive to judgments being given in evidence in civil suits, these two "deductions seem to follow as generally true : first, that the judgment of a Court of concurrent jurisdiction, directly 1 Craig V. Carleton, 8 Shepl. 492. 2 Bradley v. Bradley, 2 Fairf. 367; Woodruff v. Woodruff, Id. 475. 3 20 Howell's St. Tr. 538 ; expressly adopted and confirmed in Harvey v. Richards, 2'Gall. 229, per Story, J. ; and in Hibsham i\ DuUeban, 4 Watts, 183, per Gibson, C. J. And see King v. Chase, 15 N. Hamp. R. 9. VOL. I. 59 ■ 698 LAW OE EVIDENCE. [PAET III. upon the point, is, as a plea, a bar ; or, as evidence, conclu- I sive between the same parties, upon the same matter, directly in question in another Court ; secondly, that the judgment of a Court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another ; Court, for a different purpose.^ But neither the judgment of a concurrent nor exclusive jurisdiction is evidence of any matter, which came collaterally in question, though within their jurisdiction ; nor of any matter incidentally cognizable ; nor of any matter to be inferred by argument from the judg- ment." 2 § 529. It is only where the point in issue has been deter- mined, that the judgment is a bar. If the suit is discon- tinued, or the plaintiff becomes nonsuit, or for any other cause there has been no judgment of the Court upon the matter in issue, the proceedings are not conclusive.^ § 530. So, also, in order to constitute the former judgment 1 Thus, a judgment at law, against the validity of a bill, as having been given for a gambling debt, is conclusive of that fact in Equity also. Pearce V. Gray, 2 Y. & C. 322. Plans, and documents referred to in the plead- ings, are conclusive upon the parties, if they are adopted by the issues and make part of the judgment ; but not otherwise. Hobbs v. Parker, 1 Kedingt. 143. 2 See 2 Kent, Comm. 119-121 ; Story on Confl. of Laws, § 591-598, 603- 610. This subject, particularly with regard to the identity of the issue or subject-matter in controversy, in actions concerning the realty, is ably re- viewed and illustrated by Putnam, J., in Arnold v. Arnold, 17 Pick, 7-14. [Vose V. M6rton, 4 Cush. 27, 31.] 3 Knox V. Waldoborough, 5 Greenl. 185 ; Hull v. Blake, 13 Mass. 155; Sweigart v. Berk, 8 S. & K. 305; Bridge v. Sumner, 1 Pick. 371; 3 Bl. Comm. 296, 377. So, if the judgment has been reversed. Wood ». Jack- son, 8 Wend. 9. If there has been no judgment, it has been ruled that the pleadings are not admissible as evidence of the facts recited in them. Holt V. Miers, 9 C. & P. 191. [And where, in a decree in a suit in equity, there had been inadvertently inserted a direction as to the distribution of a certain fund, it was held that the parties interested were not affected thereby. Hol- land V. Cruft, 3 Gray, 162, 187.] . CHAP, v.] RECORDS AND JUDICIAL WRITINGS. 699 a complete bar, it must appear to have been a decision upon the merits ; and this will be sufficient, though the declaration were essentially defective, so that it would have been ad- judged bad on demurrer.^ But if the trial went oif on a technical defect,^ or because the debt was not yet due,^ or because the Court had not jurisdiction,* or because of a tem- porary disability of the plaintiff to sue,^ or the like, the judg- ment will be no bar to a future action. § 531. It is well settled, that a former recovery may be shown in evidence, under the general issue, as well as pleaded in bar ; and that when pleaded, it is conclusive upon the parties.^ But whether it is conclusive when given in evidence, is a point which has been much doubted. It is agreed, that when there has been no opportunity to plead a matter of estoppel in bar, and it is offered in evidence, it is equally conclusive, as if it had been pleaded.'' And it is fur;ther laid down, that when the matter, to which the estoppel applies, is alleged by one party, and the other, instead of pleading the estoppel, chooses to take issue on the fact, he waives the benefit of the estoppel, and leaves the Jury at liberty to find according to the fact.^ This proposition is admitted, in its 1 Hughes V. Blake, 1 Mason, 515, 519, per Story, J. [A judgment of nonsuit by the Supreme Court of Massachusetts, entered b^ consent of the parties, on an agreed statement of facts, has been held not to be a bar to a suit between the same parties upon the same cause of action, though the State Court, in pronouncing its judgment, may have expressed an opinion upon the merits of the plaintiff's case. Homer c. Brown, 16 How. U. S. 354.] 2 Ibid. ; Lane v. Harrison, Munf. 573 ; McDonald v. Rainor, 8 Johns. 442 ; Lepping v. Kedgewin, 1 Mod. 207. 3 N. Eng. Bank v. Lewis, 8 Pick. 113. 4 Estill V. Taul, 2 Yerg. 467, 470. 5 Dixon V, Sinclair, 4 Verm. 354. 6 Trevivan v. Lawrence, 1 Salk. 276; 3 Salk. 151, S.. C. ; Outram v. Morewood, 3 East, 346 ; Kitchen v. Campbell, 3 Wils. 304 ; 2 W. Bl. 827, S. C. ; [Warren v. Comings, 6 Gush. 103, 104 ; Chamberlain v. Carlisle, 6 Foster, 540.] 7 Howard v. Mitchell, 14 Mass. 241 ; Adams v. Barnes, 17 Mass. 365. So,, in Equity. Dows v. McMichael, 6 Paige, 139. 8 Ibid. 700 LAW OF EVIDENCE. [PART III. application to estoppels arising from an act of the party him- self, in making a deed, or the like ; but it has been denied in its application to judgments recovered ; for, it is said, the estoppel, in the former case, is allowed for the benefit of the other party, which he may waive ; but the whole community have an interest in holding the parties conclusively bound by the result of their own litigation. And it has been well remarked, that it appears inconsistent, that the authority of a res judicata shduld govern the Court, when the matter is referred to them by pleading, but that a Jury should be at liberty altogether to disregard it, when the matter is referred to them in evidence ; and, that the operation of so important a principle should be left to depend upon the technical forms of pleading in particular actions.^ And notwithstanding there are many respectable opposing decisions, the weight of authority, at least in the United States, is believed to be in favor of the position, that where a former recovery is given in evidence, it is equally conclusive, in its effect, as if it were specially pleaded by the way of estoppel.^ 1 Phil. & Am. on Evid. 512. 2 This point was briefly, but very forcibly, argued by Kennedy, J., in Marsh V. Pier, 4 Rawle, 288, 289, in the following terms : The propriety of those decisions, which have admitted a judgment in a former suit to be given in evidence to the Jury, on the trial of a second suit for the same cause be- tween the same parties, or those claiming under them, but at the same time have held that the Jury were not absolutely bound by such judgment, be- cause it was not pleaded, may well be questioned. The maxim, nemo debet his vexari si consiet curice quod sit pro una et eadem causa, being considered, as doubtless it was, established for the protection and benefit of the party, he may therefore waive it: and unquestionably, so far as he is individually con- cerned, there can be no rational objection to his doing so. But then it ought to be recollected that the community' has also an equal interest and concern in the niatter, on account of its peace and quiet, which ought not to be disturbed at the will and pleasure of every individual, in order to gratify vindictive and litigious feelings. Hence it would seem J;o follow, that, wherever on the trial of a cause from the state of the pleadings in it, the record of a judgment rendered by a competent tribunal upon the merits in a former action for the same cause, between the same parties, or those claim- ing under them, is properly given in evidence to the Jury, that it ought to be considered conclusively binding on both Court and Jury, and to preclude all further inquiry in the cause ; otherwise the rule or maxim, expedit reipuhlicm CHAP, v.]" KECORDS AND JUDICIAL WHITINGS. 701 § 532. When a former judgment is shown by way of bar, whether by pleading, or in evidence, it is competent for the plaintiff to reply, that it did not relate to the same property or ut sit finis lilium, which is as old as the law itself, and a part of it, will l^e ex- ploded and entirely disregarded. But if it be part of our law, as seems to be admitted by all that i1;is, it appears to me, that the Court and Jury are clearly bound by it, and not at liberty to find against such former judgment. A contrary doctrine, as it seems to me, subjects the public peace and quiet to the will or neglect of individuals, and prefers the gratification of a litigious disposition on the part of suitors, to the preservation of the public tranquil- lity and happiness. The result, among other things, would be, that the tri- bunals of the State would be bound to give their time and attention to the trial of new actions, for the same causes, tried once or oftener, in former actions between the same parties or privies, without any limitation, other than the will of the parties litigant, to the great delay and injury, if not ex- clusion occasionally of other causes, which never have passed in rem judica- tam. The effect of a judgment of a Court, having jurisdiction over the sub- ject-matter of controversy between the parties, even as an estoppel, is very different from an estoppel arising from the act of the party himself, in making a deed of indenture, &c., which may, or may not be enforced at the election of the other party ; because, whatever the parties have done by compact, they may undo by the same means. But a judgment of a proper Court, being the sentence or conclusion of the law, upon the facts contained within the record, puts an end to all further litigation on account of the same matter, and becomes the law of the case, which cannot be changed or altered, even by the consent of the parties, and is not only binding upon them, but upon the Courts and Juries, ever afterwards, as long as it shall remain in force and unreversed." A similar view, with the like distinction, was taken by Huston, J., in Kilheffer y. Herr, 17 S. & R. 325, 326. See also to the point, that the evidence is conclusive, Shafer v. Stonebraker, 4 G. & J. 345; Cist v. Zigler, 16 S. & R. 282; Betts v. Starr, 5 Conn. 550, 553 ; Preston v. Harvey, 2 H. & Mun. 55; Estill v. Taul, 2 Yerg. 467, 471; King V. Chase, 15 N. Hamp. R. 9. . In New York, as remarked by Savage, C. J., in Wood V. Jackson, 8 Wend. 24, 25, the decisions have not been uni- form, nor is it perfectly clear, where the weight of authority or of argument lies. But in the later case of Lawrence v. Hunt, 10 Wend. 83, 84, the learned Judge, who delivered the opinion of the Court, seemed inclined in ■ favor of the conclusiveness of the evidence. [This case was confirmed in Thompson v. Roberts, 24 How. 233.] See to the same point, Hancock V. Welch, 1 Stark. R. 347 ; Whately v. Menheim, 2 Esp. 608 ; Strutt v. Bovingdon, 5 Esp. 56-59 ; Rex v. St. Paucras, Peake's Cas. 220 ; Duchess of Kingston's case, 20 Howell's St. Tr. 538; Bird v. Randall, 3 Burr. 1353. The contrary decision of Vooght v. Winch, 2 B. & Aid. 662, was cited, but without being approved, by Best, C. J., in Stafford v. Clark, 1 C. & P. 405, and was again discussed in the same case, 2 Bing. 377; but each of the 59* 702 LAW OP EVIDENCE. [PAET III. transaction in controversy in the action, to which it is set up in bar ; and the question of identity, thus raised, is to be determined by the Jury, upon the evidence adduced.^ And learned Judges expressly declined giving any opinion on the point. This case, however, is reconciled vpith other English cases, by Mr. Smith, on the ground, that it means no more than this, that where the party might plead the record by estoppel, but does not, he waives its conclusive character. See 2 Smith's Leading Cases, 434, 444, 445. The learned author, in the note here referred to, has reviewed the doctrine of estoppels in a masterly manner. The judgment of a Court-Martial, when olFered in evidence in support of a justification of imprisonment, by reason of military disobedience and misconduct, is not regarded as conclusive ; for the special reasons stated by Lord Mansfield in Wall v. McNamara, 1 T. R. 536. See ace. Hannaford B.Hunn, 2 C. & P. 148. 1 So, if a deed is admitted in pleading, proof of the identity may still be required. Johnston u. Cottingham, 1 Armst. Macartn. & Ogle, R. 11. And see Garrott v. Johnson, 11 G. & J. 173. [A verdict and judgment for B in an action at law brought against him by A, for obstructing the flow of water to A's mill, in which action B put in the plea of not guilty, and a specifica- tion of defence denying both A's right and any injury thereto, are no bar to a suit in equity by A against B to restrain such obstruction, unless it appear either by the record, or by extrinsic evidence that B prevailed in the action at law because A had failed to satisfy the Jury that B had violated A's rights. McDowell v. Langdon, 3 Gray, 513. To prove that the 24th day of a certain month was a reasonable time in which to perform a certain con- tract, the record of a former judgment between the same parties establishing that the 22d day of the same month was within a reasonable time, is not competent evidence. Sage v. McAlpin, 11 Gush. 165. A verdict in favor of the defendant in an action against one of two joint trespassers, which would be conclusive evidence in a subsequent action against him by the same plaintiff, will not be conclusive in an action by such plaintiff against the co-trespasser. Sprague v. Oalies, 19 Pick. -455-458. Judgment and satisfaction in an action on a bond given to dissolve an attach- ment, constitute no defence to an action on a bond given to obtain a review of the action in wliich the attachment was made, for a breach of a con- dition 'to enter such review at the next term of the Court. Lehan v. Good, ,8 Gush. 302-309. To an action for goods sold, the defendant answered that he had, in part payment of the price, given a special promise to pay certain debts of the .plaintiff, and had performed that promise, and that he had otherwise paid the remainder of the price. The defendant recovering in this action, the plain- tiff brought an action on the special promise, and it was held that the judg- ment for the defendant in the former action was no bar to the subsequent action on the special promise. Harding v. Hale, 2 Gray, 399, 400. A hav- CHAP, v.] RECORDS ANl) J-ODICIAL WRITINGS. 703 though the declaration in the former suit may be broad enough to inclpde the subject-matter of thie second action, yet if, upon the wholp record, it remains doubtful whether the same subject-matter were actually passed upon, it sqpms that parol evidence may be received to show the truth.-^ So also, if the pleadings present several distinct propositions, and the evidence may be referred to either or to all with the same propriety, the judgment is not conclusive, but only primd facie evidence upon any one of the propositions, and evidence aliimde is admissible to rebut it.^ , Thus where the plaintiff in a former action declared upon- a promissory note, and for goods sold, but upon executing the writ of inquiry, after judgment by default, he was not prepared with evidence on the count for goods sold, and therefore took his damages only for the amount of the note ; he was admitted, in a second action for the goods sold, to prove the fact by parol, and it was held no bar to the second action.^ And upon the same principle, if one wrongfully take another's horse and ing contracted to convey land to B, conveyed it to C. B brought a bill in equity against A and C for a specific performance of the contract, but judg- ment was rendered thereon for the respondehts,A and C. B subsequently brought an action at law against A to recover damages for the breach of the contract, and it was held that the judgment in the equity suit was no bar to the action at law. Buttrick v. Holden, 8 Cush. 253-236.] 1 It is obvious that, to prove what was the point jji issue in a previous ac- tion at Common Law, it is necessary to produce the entire record. Foot v. Glover, 4 Blackf 313. And see Morris v. Keyes, 1 Hill, 540 ; Glasscock v. Hays, 4 Dana, 59 ; [Drake v. Merrill, 2 Jones, Law, 368. A petitioner for partition, claiming title under a judgment, may show by parol evidence that his name was incorrectly stated in the judgment, through mistake ; and it is not necessary for this purpose that the mistake should be previously cor- rected on the record. And where there is a difference between the descrip- tion of the land of which partition is demanded in a petition for partition, and the description of land in a judgment under which the petitioner claims title, he may show by parol, that the land described in both is the same, and if he establishes this fact, then the former judgment is conclusive evidence of his title thereto. Wood v. Le Baron, 8 Cush. 471, 473 ; Root v. Fellowes, 6 Cush.-29 ; Washington Steam Packet Co. v. Sickles, 24 How. 333.] 2 Henderson v. Kenner, 1 Richardson R. 574. 3 Seddon v. Tutop, 6 T. R. 608 ; Hadley v. Green, 2 Tyrwh. 390. See 704 LAW OF EVIDENCE. [PART III. sell hitiij applying the money to his own use, a recovery in trespass, in an action by the owner for the taking, would be a bar to a subsequent action of assumpsit for the money re- ceived, or for the price, the cause of action being proved to be the same.^ But where, from the nature of the two ace. Bridge v. Gray, 14 Pick. 25 ; Webster v. Lee, 6 Mass. 334 ; Ravee v. Farmer, 4 T. R. 146 ; Thorpe v. Cooper, 5 Bing. 116 ; Phillips v. Berick, 16 Johns. 136. But if the Jury have passed upon the claim, it is a bar though they may have disallowed it for want of sufficient evidence. Staflfbrd V. Clark, 2 Bing. 377, 382, per Best, C. J. ; Phillips v. Berick, supra. So, if the fact constituting the basis of the claim was proved, among other things, before an arbitrator, but he awarded no damages for it, none having been at that time expressly claimed. Dunn v. Murray, 9 B. & C. 780. So, if he sues for part only of an entire and indivisible claim ; as, if one labors for another a year, on the same hiring, and sues for a month's wages, it is a bar to the whole. Miller v. Covert, 1 Wend. 487. But it seems that, generally, a running account for goods sold and deliTcred does not constitute an entire demand. Badger v. Titcomb, 15 Pick. 415. Contra, Guernsey v. Carver, 8 Wend. 492. So, if, having a claim for a greater amount consisting of several distinct particulars, he sues in an inferior Court, and takes judgment for a less amount. Bagot v. Williams, 3 B. & C. 235. So, if he obtains an inter- locutory j udgment for his whole claim, but, to avoid delay, takes a rule to compute on one item only, and enters a nolle prosequi as to the other. Bow- den V. Home, 7 Bing. 716. 117 Pick. 13, per Putnam, J. ; Young v. Black, 7 Cranch, 565 ; Liver- more V. Herschell, 3 Pick. 33 ; [Norton v. Doherty, 3 Gray, 372.] Whether parol evidence would be admissible, in such case, to prove that the damages awarded in trespass were given merely for the tortious taking, without in- cluding the value of the goods, to which no evidence had been offered ; qumre, and see Loomis v. Green, 7 Greenl. 386. [The assignees of an in- solvent debtor brought a bill in equity to set aside conveyances of property made by the debtor to the respondents, as made and taken either without consideration and in fraud of creditors, or by way of unlawful preference, contrary to the insolvent laws. The bill charged the respdndents in the common form with combining and confederating with divers other persons to the complainants unknown, and prayed for relief against the respondents jointly and severally ; and the Court after a hearing upon the merits de- creed that the demands set up by the respondents, in their several answers were justly due them from the insolvent, and that the conveyances of prop- erty in payment thereof, were not made in violation of the insolvent laws, and dismissed the bill. The assignees subsequently brought an action of trover against one of the respondents in the equity suit, for the same prop- erty, and it was held that the decree in that suit was a bar to the action of CHAP, v.] EBCORDS AND JUDICIAL WRITINGS. T05 actions, the cause of action cannot be the same in both, no averment -will be received to the contrary. Therefore, in a trovei'. Bigelow v. Winsor, 1 Gray, 299, 303 ; Shaw, C. J., in delivering the opinion of the Court in this case, said : " One valid judgment by a Court of competent jurisdiction, between the same parties, upon considerations as well of justice as of public policy, is held to be conclusive, except where a review, an appeal, or rehearing in some form, is allowed and regulated by law. No man is to be twice vexed with the same controversy. Interest reipuhlicce ul finis sit litium. " To ascertain whether a past judgment is a bar to another suit, we are to , consider, .first, whether the subject-matter of legal controversy, which is pro- posed to be brought before any Court for adjudication, has been drawn in question, and within ttie issue of a former judicial proceeding, which has terminated in a regular judgment on the merits, so that the whole question |. may have been determined by tbat adjudication ^ secondly, whether the for- \ mer litigation was between the same parties, in the same right or capacity litigating in the subsequent suit, or their privies respectively, claiming ! through or under them, and bound and estopped by that which would bind and estop those parties; and thirdly, whether the former adjudication was had before a Court of competent jurisdiction to hear and decide on the whole matter of controversy, embraced in the subsequent suit. " It is no objection that the former suit embraced more subjects of contro- versy, or more matter than the present ; if the entire subject of the present controversy was embraced in it, it is sufScieut, it is res judicata. " Nor is it necessary that the parties should be in all respects the same. If by law a judgment could have been given in that suit for this plain- tiff against this defendant, for the present cause of action, it has passed into judgment. Suppose trespass for assault and battery against five, and verdict and judgment for all the defendants ; then a new suit for the same trespass, by the same plaintiff, against one of the defendants, the former judgment is a good bar. In actions of tort the cause of action is several as well as joint, and if, upon the evidence, one defendant was charge- able with the trespass, a verdict and judgment might have l)een rendered against him severally in the first suit, although the other defendants had a verdict. " Nor is it essential, that the two tribunals should have the same jurisdic- tion in other respects, provided the Court was of competent jurisdiction to adjudicate upon the entire matter in controversy, in the subsequent suit. Whether it be a Court of law or equity, of admiralty or of probate, if in the matter in controversy between the parties, with the same object in view, that of remedy between them, the Court had jurisdiction to decide, it is a legal adjudication binding on these parties." To render a former judgment between the same parties admissible in evi- dence in another action pending between them, it must appear that the fact 706 LAW OF EVIDENCE. ' [PART III. writ of right, a plea in bar that the same title had been the sole subject of litigation in a former action of trespass quare sought to be proved by the record, wag actually passed upon by the Jury in finding their verdict in the former suit. It is not necessary that it should have been directly and specifically put in issue by the pleadings, but it is sufficient if it is shown that the question which was tried in the former action between the same parties is again to be tried and settled, in the suit in which the former judgment is offered in evidence. And parol evidence is admissible to show that the same fact was submitted to, and passed upon by, the Jury in the former action ; because, in many cases, the record is so general in its character, that it could not be known with- out the aid of such proof, what the precise matter of controversy was at the trial of the former action. Thus where the fact sought to be established by the plaintiffs in a suit, is the existence of a copartnership between the defendants, under a certain name, a former judgment recovered by the same plaintiffs against the same defendants, as copartners, under such name, on a note given at the same time with the one in suit, is admissible, although not conclusive evidence, of that fact. Button o. Woodman, 9 Cush. 255, 261. Eastman v. Cooper, 15 Pick. 276, 279, 285. But in an action of replevin for a piano, a former judgment between the same parties, in aii I action of trespass qucere clausum, in which the taking away of the same \ piano was alleged by way of aggravation, is not conclusive as to the owner- ■ ship of the piano ; as the question of the title to the piano was only indirectly ■ involved. Gilbert v. Thompson, 9 Cush. 348, 350 ; Potter v. Baker, 19 N. H. 166. Lamprey u. Nudd, 9 Foster, 299. A judgment for the demandant in a real action with possession taken under it, will preclude the tenant in that action from afterwards asserting against such demandant any personal prop- erty in the buildings which he. had erected on the land. Doak v. Wiswell, 33 Maine, 355. See Small v. Leonard, 26 Verm. 209 ; Morgan v. Barker, lb. 602 ; Briggs v. Wells, 12 Barb. 567. A sued out a writ of entry to fore- close a mortgage given by B to secure the payment of five promissory notes. B defended, pleading the general issue, and specifying certain grounds of defence. A trial was had, and a verdict found for A upon which condi- tional judgment was subsequently rendered fbr him, and the amount there- I of not being paid, A took possession of the mortgaged premises.- Pending ; the foregoing proceedings, A brought an action against B on one of the five ' promissory notes, and B put in his answer, defeTiding on the same grounds as he had defended the action on the mortgage. The suit on the note came to trial after judgment was entered in the former action, and it was held : that B was estopped by said judgment from again availing himself of the ' grounds of defence upon which he had before insisted. Burke v. Miller, 4 Gray, 114, 116. See also Sargent v. Fitzpatrick, lb. 511, 514. A con- tracted with B to forward and deliver certain goods belonging to A. B in- trusted them to a carrier, who failed to deliver them. A brought trover CHAP, v.] RECORDS AND JUDICIAL -WRITINGS. 707 clausum fregit, or in a former writ of entry, between the same parties, or others privy in estate, was held to be a bad plea.i Whether the judgment in an action of trespass, upon the issue of liberumtenementum, is admissible in a subsequent action of ejectment between the same parties, is not perfectly clear; but the weight of American authority is in favor of admitting the evidence.^ § 533. The effect of former recovery has been very much discussed, in the cases where different actions in tort have successively been brought, in regard to the same chattel ; as, for example, an action of trover, brought after a judgment in trespass. Here, if title to the property was set up by the against the carrier, and the carrier obtained in this action, a judgment on the merits against A. B also sued the carrier for the non-delivery of the goods, and it was held that the judgment in the suit brought by A was a bar to the suit by B. Greene v. Clarke, 2 Kernan, 343. To an action by A against B on a promissory note given by B to A in payment for goods, B pleaded want of consideration by reason of false representations of A con., cerning the value of such goods. A recovered judgment for part only of the note. It was held that this was a bar to a subsequent action brought by B against A to recover damages for such false representations. Burnett v. Smith, 4 Gray, 50. In replevin by a tenant against his landlord, who had distrained for rent in arrear, it was held that a verdict in summary proceed- ings instituted by the landlord to remove the tenant for default in the pay- ment of rent, that no rent was due, was conclusive on that point — the same rent being in question in both proceedings. White v. Coatsworth, 2 Selden, N. Y. 137. An action brought for a part of an entire and indivisible de- mand, and a recovery therein, will bar a subsequent suit for the residue of the same demand. Staples v. Goodrich, 21 Barb. 317. Warren v. Comings, 6 Gush. 403. Where it appears at a trial in this State (New York), that in a former suit between the same parties in a sister State, the causes of action here specially declared on and all growing out of the same subject-matter, could have been proved in that suit, and that the same proof offered here was, in the former suit, properly introduced and considered on the merits, and judg- ment rendered for the defendant, such judgment is a bar to the second suit. Ba"ker v. Rand, 13 Barb. 152.] 1 Arnold v. Arnold, 17 Pick. 4; Bates u. Thompson, Id. 14, n. ; Bennett V. Holmes, 1 Dev. & Bat. 486. 2 Hoey J). Furman, 1 Barr, 295. And see Meredith v. Gilpin, 6 Price, 146 ; Kerr v. Chess, 7 Watts, 371 ; Foster v. McDivit, 9 Watts, 349. 708 LAW OF EVIDENCE. [PAET III. defendant in the first action, and it was found for him, it is clearly a bar to a second action for the same chattel ; ^ even though brought against one not a party to the former suit, but an accomplice in the original taking.^ So, a judgment for the defendant in trover, upon trial of the merits, is a bar to an action for money had and received, for the money aris- ing from the sale of the same goods.^ But, whether the plain- tiff, having recovered judgment in trespass, without satisfac- tion, is thereby barred from afterwards maintaining trover against another person for the same goods, is a point upon which there has been great diversity of opinion. On the one hand it is said that, by the recovery of judgment in trespass for the full value, the title to the property is vested in the defendant, the judgment being a security for the price ; and ■ that the plaintiff cannot take them again, and therefore can- not recover the value of another.* On the other hand, it is argued, that the rule of transit in rem judicatam extends no farther than to bar another action for the same cause against the same party ; ^ that, on principle, the original judgment can imply nothing more than a promise by the defendant to pay the amount, and an agreement by the plaintiff, that, upon payment of the money by the defendant, the chattel shall be his own ; and that it is contrary to justice and the analogies of the law, to deprive a man of hj^ property without satisfac- tion, unless by his express consent. Solutio pretii emptionis loco habetur. The weight of authority seems in favor of the latter opinion.^ 1 Putt V. Koster, 2 Mod. 218; 3 Mod. 1, S. C. nom. . Putt w. Rawstern, see 2 Show. 211 ; Skin. 40, 57 ; T. Raym. 472, S. C. [See also Greely v. Smith, 3 W. & M. 236.] 2 Ferrers v. Arden, Cro. EI. 668 ; 6 Co. 7, S. C. 3 Kitchen v. Campbell, 3 AVils. 304; 2 W. Bl. 827, S. C. ■ * Broome c. Wooton, Yelv. 67 ; Adams v. Broughton, 2 Stra. 1078; An- drews, 18, S. C. ; White v. Philbrick, 5 Greenl. 147; Rogers v. Thompson, 1 Rice, 60. 5 Drake v. Mitchell, 3 East, 258 ; Campbell v. Phelps, 1 Pick. 70, per Wilde, J. 6 Puttu. Rawstern, 3 Mod. 1 ; Jenk. Cent. p. 189 ; 1 Shep. Touchst. 227; More V. Watts, 12 Mod. 428 ; 1 Ld. Raym. 614, S. C. ; Luttrell ti. Reynell, CHAP, v.] KBCORDS AND JUDICIAL WRITINGS. 709 § 534. It is not necessary, to the conclusiveness of the former judgment, that issue should have been taken upon the precise point which is controverted in the second trial ; it is sufficient, if that point was essential to the finding of the former verdict. Thus, where the parish of Islington was indicted and convicted for not repairing a certain highway, and afterwards the parish of St. Pancras was indicted for not repairing the same highway, on the ground, that the line dividing the two parishes ran along the middle of the road; it was held, that the former record was admissible and con- clusive evidence for the defendants in the latter case, to show that the road was wholly in Islington ; for the Jury must have found that it was so, in order to find a verdict against the defendants.^ 1 Mod. 282 ; Bro. Abr. tit. Judgm. pi. 98 ; Moreton's case, Cro. EI. 30 ; Cooke V. Jenner.'Hob. 66 ; Livingston v. Bishop, 1 Johns. 290 ; Rawson v. Turner, 4 Johns. 425 ; 2 Kent, Comm. 388 ; Curtis v. Groat, 6 Johns. 168 ; Corbett et al. v. Barnes, W. Jones, 377 ; Cro. Car. 443 ; 7 Vin. Abr. 341, pi. 10, S. C. ; Barb v. Fish, 5 West. Law Journ. 278. The foregoing au- thorities are cited as establishing principles in opposition to the doctrine of Broome v. Wooton. The following cases are direct adjudications to the contrary of that case. Sanderson v. Caldwell, 2 Aiken, 195 ; Osterhout v. Roberts, 8 Cowen, 43 ; Elliott v. Porter, 5 Dana, 299. See also Campbell V. Phelps, 1 Pick. 70, per Wilde, J. ; Claxton v. Swift, 2 Show. 441, 494; Jones V. McNeil, 2 Bail. 466 ; Cooper v. Shepherd, 2 M. G. & S. 266. The just deduction from all the authorities, as well -as the right conclusion upon principle, seems to be this, — that the judgment in trespass or trover will not transfer the title of the goods to the defendant, although it is pleadable in bar of any action afterwards brought by the same plaintiff, or those in privity with him, against the same defendant, or those in privity with him. See 3 Am. Law Mag. p. 49-57. And as to the original parties, it seems a just rule, applicable to all personal actions, that wherever two or more are liable jointly and not severally, a judgment against one, though without satisfaction, is a bar to another action against any of the others for the same cause ; but it is not a bar to an action against a stranger. As far as an action in the form of tort can be said to be exclusively joint in its nature, this rule may govern it, but no farther. This doctrine, as applicable to joint contracts, has been recently discussed in England, in the. case of King v. Hoare, 13 M. & W. 494, in which it was held that the judgment against one alone was a bar to a subsequent action against the other. 1 Rex V. St. Pancras, Peake's Cas. 219; 2 Saund. 159, note (10), by Williams. And see Andrews v. Brown, S Cush. 130. So, where, upon a VOL. I. 60 710 LAW OF EVIDENCE. [PART III. § 535. We have already observed, in general, that parties in the larger legal sense, are all persons having a right to control the proceedings, to make defence, to adduce and cross-examine witnesses, and to appeal from the decision, if any appeal lies. Upon this ground, the lessor of the plaintiff in ejectment, and the tenant^ are the real parties to the suit, and are concluded in any future action in their own names, by the judgment in that suit.^ So, if there be a trial between B.'s lessee and E., who recovers judgment ; and afterwards another trial of title to the same lands, between E.'s lessee and B., the former verdict and judgment will be admissible in evidence in favor of E.'s lessee against B. ; for the real parties in both cases were B. and E.** § 536. The case of privies, which has already been men- tioned, is governed by principles similar to those which have been stated in regard to admissions ; ^ the general doctrine I being this, that the person who represents another, and the I person who is represented, have a legal identity ; so that whatever binds the one,'in relation to the subject of their common interest, binds the other also. Thus, a verdict and judgment for or against the ancestor, bind the heir.* So, if several successive remainders are limited in the same deed, a complaint for flowing the plaintiflT's lands, under a particular statute, dam- ages were awarded for the past, and a prospective assessment of damages made, for the future flowage ; upon a subsequent application for an increase of the assessment, the defendant was precluded from setting up a right in himself to flow the land, for the right must necessarily have been deter- mined in the previous proceedings. Adams v. Peatson, 7 Pick. 341. 1 Doe V. Huddart, 2 Cr. M. & R. 316, 322 ; Doe v. Preece, 1 Tyrw. 410 ; Aslin V. Parkin, 2 Burr. 665; Wright v. Tatham, 1 Ad. & El. 3, 19 ; Bull. N. P. 232 ; Graves v. Joice, 5 Cowen, 261, and cases there cited ; [Amick V. Oyler, 25 Penn. State E. 506.] 2 Bull. N. P. 232; Calhoun w. Dunning, 4 Dall. 120. So, a judgment in trespass against one who justifies as the servant of J. S., is evidence against another defendant in another action, it appearing that he also acted by the command of J. S., who was considered the real party in both cases. Kiu- nersly v. Orpe, 2 Doug. 517; 1 Doug. 56. 3 Supra, §§ 180, 189, 523. 4 Locke V. Norborne, 3 Mod. 141. CHAP, v.] RECORDS AND JUDICIAL WRITINGS. 711 judgment for one remainder-man is evidence for the next in succession.^ But a judgment, to which a tenant for life was a party, is not evidence for or against the reversioner, unless he came into the suit upon aid prayer? So, an assignee is bound by a judgment against the assignor, prior to the assignment.^ There is the like privity between the ancestor and all claiming under him, not only as heir, but as tenant in dower, tenant by the curtesy, legatee, devisee, &c.* A judgment of ouster, in a qv/O warranto, against the incum- bent of an office, is conclusive evidence against those who derive their title to office under him.^ Where one sued for diverting water from his works, and had judgment; and afterwards he and another sued the same defendants for a similar injury ; the former judgment was held admissible in evidence for the plaintiffs, being primd facie evidence of their privity in estate with the plaintiff in the former ac- tion.^ The same rule applies to all grantees, they being in like manner bound by a judgment concerning the same land, recovered by or against their grantor, prior to the con- veyance.^ § 537. Upon the foregoing principles, it is obvious that, as a general rule, a verdict and judgment in a criminal case, though admissible to establish the fact of the mere rendition of the judgment, cannot be given in evidence in a civil action, to establish the facts on which it was rendered? 1 Bull. N. P. 232 ; Pyke u. Crouch, 1 Ld. Raym. 730. 2 Bull. IJ. P. 232. 3 Adams v. Bgrnes, 17 Mass. 365. 4 Locke V. Norborne, 3 Mod. 141 ; Outram v. Morewood, 3 East, 353. 5 Rex-w. Mayor, &o. of York, 5 T. R. 66, 72, 76 ; Bull. N. P. 231 ; Rex V. Hebden, 2 Stra. 1109, n. (1.) 6 Blakemore v. Glamorgan sliire Canal Co. ,2 C. M. & R. 133. 7 Foster V. E. of Derby, 1 Ad. & El. 787, per Littledale, J. 8 Mead v. Boston, 3 Cush. 404. In one case it was held, that the deposi- tion of a witness, taken before the coroner, on an inquiry touching the death of a person killed by a collision between two vessels, was receivable in evi- dence, in an action for the negligent management of one of them, if the witness be shown ,to be beyond sea. Sills v. Brown' 9 C. & P. 601, per Coleridge, J. But qumre, and see 2 Phil. Evid. 74, 75 ; Infra, § 553. 712 LAW OF EVIDENCE. [PAET IH. If the defendant was convicted, it may have been upon the evidence of the very plaintiff in the civil action ; and if he was acquitted, it may have been by collusion with the prose- cutor. But beside this, and upon more general grounds, there is no mutuality ;. the parties are not the same ; neither are the rules of decision and the course of proceeding the same. The defendant could not avail himself, in the crimi- nal trial, of any admissions of the plaintiff in the civil action ; and, on the other hand, the Jury in the civil action must decide upon the mere preponderance of evidence ; whereas, in order to a criminal conviction, they must be satisfied of the party's guilt, beyond any reasonable doubt. The same principles render a judgment in a civil action inadmissible evidence in a criminal prosecution.^ 1 1 Bull. N. P. 233 ; Rex v. Boston, 4 East, 572 ; Jones v. White, 1 Stra. 68, per Pratt, J. Some of the older authorities have laid much stress upon the question, whether the plaintiff in the civil action was or was not a wit- ness on the indictment. Upon which Parke, B., in Blakemore u. Glamor- ganshire Canal Co. 2 C. M. & E. 139, remarked as follows: "The case being brought within the general rule, that a verdict on the matter in issue is evidence for and against parties and privies, no exception can be allowed in the particular action, on the ground that a circumstance occurs in it, which forms one of the reasons why verdicts between different parties are held to be inadmissible, any more than the absence of all such circ.umstances, in a particular case, would be allowed to form an exception to the general rule, that verdicts between other parties cannot be received. It is much wiser, and more convenient for the administration of justice, to abide as much as possible by general rules." A record of judgment in a criminal case, upon a plea of guilty, is admissible in a civil action against the party, as a solemn judicial confession of the fact ; and, according to some authori- ties, it is conclusive. But its conclusiveness has "since been doubted ; for the plea may have been made to avoid expense. See Phil. & Am. on Evid. 523, n. (4) ; 2 Phil. Evid. 25 ; Bradley v. Bradley, 2 Fairf. 367 ; Regina v. Moreau, 12 Jur. 626 ; 11 Ad. & El. 1028, N. S.; Clark v. Irvin, 9 Ham. 131. But the plea of nolo contendere is an admission for that trial only, and is not admissible in a subsequent action. Commonwealth v. Horton, 9 Pick. 206 ; Guild V. Lee, 3 Law Reporter, p. 423 ; Supra, §§ 179, 216. In Regina v. Moreau, which was an indictment for perjury in an affidavit, in which the defendant had sworn that the prosecutor was indebted to him in £40, and the civil suit being submitted to arbitration, the arbitrator awarded that nothing was due, the'award was offered in evidence against the prisoner, as proof of the falsity of his affidavit ; but the Court held it as merely the dec- CHAP. V.J RECORDS AND JUDICIAL WRITINGS. 713 § 538. But, as we ha,ve before remarked,^ the verdict and judgment in any case are always admissible to prove the fact, that the judgment was rendered, or the verdict given ; for there is a material difference between proving the exist- ence of the record an3 its tenor, and using the record as the medium of proof of the matters of fact recited in it. In the former case, the record can never be considered as res inter alios acta; the judgment being a public transaction, ren- dered by public authority, and being presumed to be faith- fully recorded, It is therefore the only proper legal evidence of itself, and is conclusive evidence of the fact of the rendi- tion of the judgment, and of aU the legal consequences result- ing from that fact, whoever may be the parties to the suit in which it is offered in evidence. Thus, if one indicted for an assault and ba,ttery hg,s been acquitted, and sues the prose- cutor for malicious prosecution, the record of acquittal is evidence for the plaintiff, to establish that fact, notwithstand- ing the parties are not the same. But if he were convicted of the offence, and then is sued in trespass for the assault, the record in the former case would not be evidence to establish the fact of the assault ; for, as to the matters involved in the issue, it is res inter alios acta- § 539. The distinction between the admissibility of a judg- ment as a fact, and as evidence of ulterior facts, may be fur^ ther illustrated by the instances in which jt has been recogr nized. Thus, a judgment against the sheriff for the miscon- duct of his deputy, is evidence against the latter of the fact, that the sheriff has been compelled to pay the amount awarded, and for the cause alteged ; but it is not evidence of the fact upon which it was founded, namely, the misconduct laration of the arbitrator's opinion, and therefore not admissible in a crimi- nal proceeding. [The record of the conviction of a thief on his plea of guilty to an indictment against him alone for stealing certain property, is not admissible in evidence to prove the theft, on the trial of a receiver of that property, upon an indictment against him alone, which indictment does not aver that the thief has been convicted. Commonwealth v. Eliaha, 3 Gray, 460.] 1 Supra, § 52_7. 60* 714 LAW OF EVIDENCE. [pART III. of the deputy, unless he was notified of the suit and required to defend it.^ So it is in other cases, where the officer or party has a remedy over.^ So, where the record is matter of inducement, or necessarily introductory to other evidence ; as, in an action against the sheriff for neglect, in regard to an execution ;^ or to show the testimony of a witness upon a former trial ; * or where the judgment constitutes one of the muniments of the party's title to an estate ; as, where a deed was made under a decree in Chancery,^ or a sale was made by a sheriff, upon an execution.^ So, where a party has concurrent remedies against several, and has obtained satisfaction upon a judgment against one, it is evidence for the others.'' So, if one be sued alone, upon a joint note by two, it has been held, that the judgment against him may be shown by the defendants, in bar of a second suit against both, for the same cause, to prove that, as to the former defendant, the note is extinct.® So a judgment inter- alios is admissible, to show the character in which the possessor holds his lands.^ § 539 a. But where the contract is several as well as joint, it seems that the judgment in an action against one is no bar to a subsequent action against all ; nor is the judgment against all, jointly, a bar to a subsequent action against one alone. For when a party enters into a joint and several obli- gation, he in effect agrees that he will be liable to a joint 1 Tyler v. Ulmer, 12 Mass. 166, per Parker, C. J. 2 Kip V. Brigham, 6 Johns. 158 ; 7 Jotns. 168 ; Grriffin v. Brown, 2 Pick. 804 ; Weld v. Nichols, 17 Pick. 538 ; Head v. McDonald, 7 Monr. 203. 3 Adams v. Balch, 5 Greenl. 188. 4 Cl'arges v. Sherwin, 12 Mod. 843 ; Foster i;. Shaw, 7 S. & R. 156. 5 Barr v. Gratz, 4 Wheat. 218. 6 Witmer v. Schlatter, 2 Rawle, 359 ; Jackson v. Wood, 3 Wend. 27, 34 ; Fowler v. Savage, 3 Conn. 90, 96. 7 Farwell v. Hilliard, 3 N. Hamp. 318. 8 Ward V. Johnson, 13 Mass. 148. See also Lechmere v. Fletcher, 1 C. & M. 623, 634, 635, per Bayley, B. 9 Davis V. Loundes, 1 Bing. N. C. 607, per Tindal, C. J. See further, supra, § 527 a; Wells v. Compton, 3 Rob. Louis. R. 171. CHAP, v.] EECOEDS AND JUDICIAL WRITINGS. 715 action, and to a several action for the debt. In either case, therefore, the bar of a former judgment would not seem to apply ; for, in a legal sense, it was not a judgment between the same parties, nor upon the same contract. The con- tract, it is said, does not merely give the obligee an election of the one remedy or the other, but entitles him at once to both, though he can have but one satisfaction.^ § 540. In regard to foreign judgments, they are usually considered in two general aspects : first, as to judgments in, rem; and, secondly, as to judgments in personam. The latter are again considered under several heads : first, where the judgment is set up by way of defence to a suit in a for- eign tribunal ; secondly, where it is sought to be enforced in a foreign tribunal against the original defendant, or his prop- erty; and, thirdly, where the judgment is either between subjects, or between foreigners, or between foreigners and subjects.^ But, in order to found a proper ground of recog- nition of a foreign judgment, under whichsoever of these aspects it may come to be considered, it is indispensable to establish, that the Court which pronounced it had a lavirful jurisdiction over the cause, over the thing, and over the par- ties. If the jurisdiction fails as to either, it is treated as a mere nullity, having no obligation, and entitled to no respect beyond the domestic tribunals.* § 541. As to foreign judgments in rem, if the matter in controversy is land, or other immovable property, the judg- ment pronounced in the forum rei sitcB is held to be of uni- - 1 The United States v. Cushman, 2 Sumn. R. 426, 437-441, per Story, J. See also Sheehy v. Mandeville, 6 Cranch, 253, 265 ; Lechmere v. Fletcher, 1 C. & M. 623, 634, 635, per Bayley, B. ; [Kirkpatriok v. Sfmgley, 2 Car- ter, 269.] 2 In what follows on the subject of foreign judgments, I have simply tran- scribed and abridged what has recently been written by Mr. Justice Story, in his learned Commeiitaries on the Conflict of Laws, ch. 15, (2d ed.) 3 Story, Confl. Laws, §§ 584, 586 ; Rose v. Himely, 4 Cranch, 269, 270, per Marshall, C. J. ; Smith v. Knowlton, 11 N. Hamp. R. 191; RaHgelyu. Webster, Id. 299. 716 LAW OF EVIDBiNCH. [PART III, versal obligation, as to all the matters of right and title which it professes to decide in relation thereto.^ " The same principle," observes Mr. Justice Story ,^ " is applied to all other cases of proceeding in rem, where the subject is movable property, within the jurisdiction of the Court pror nouncing the judgment.^ Whatever the Court settles as tp the right or title, or whatever disposition it makes of the property by sale, revendication, transfer, or other act, will be held valid in every other country, where the same question comes directly or indirectly in judgment before any other foreign tribunal. This is very familiarly known in the cases of proceedings in, rem in foreign Courts of Admiralty, whether they are causes of prize, or of bottomry, or of salvage, or of forfeiture, or of any of the like nature, over which such Courts have a rightful jurisdiction, founded on the actual or con- structive possession of the subject-matter.'* The same rule is applied to other Courts proceeding in rem, such as the Court of Exchequer in England, and to other Courts exercising a like jurisdiction in rem upon seizures.^ And in cases of this 59^ 1 Story, Confl. Laws, §§ 532, 545, 551, 59 2 Story, Confl. Laws, § 592. See also Id. § 597. 3 See Kames on Equity, B. 8, ch. 8, § 4. * Croudson ii. Leonard, 4 Cranch, 433 ; Williams v. Armroyd, 7 Cranch, 423 ; Rose v. Himely, 4 Cranch, 241 ; Hudson v. Guestier, 4 Cranch, 293 ; The Mary, 9 Cranch, 126, 142-146; 1 Stark. Evid. pp. 246, 247, 248; Marshall on Insur. B. 1, ch. 9, § 6, pp. 412, 435 ; Grant v. McLachlin, 4 Johns. 34 ; Peters v. The Warren Ins. Co. 3 Sumner, 389 ; Bland v. Bam- field, 3 Swanst. 604, 605 ; Bradstreet v. Neptune Insur. Co. 3 Sumner, 600 ; Magoun V. New England Insur. Co. 1 Story, R. 157. The different degrees of credit given to foreign sentences of condemnation in prize causes, by the American State Courts, are stated in 4 Cowen, E. 520, note 3. 1 Stark. Evid. 232, (6th ed.) notes by Metcalf. See also 2 Kent, Comm. 120, 121. If a foreign sentence of condemnation as prize is manifestly erroneous, as, it it professes to be made on particular grounds, which are set forth, but which plainly do not warrant the decree ; Calvert v. Bovil, 7 T. K. 528 ; Pollard V. Bell, 8 T. R. 444; or, on grounds contrary to the laws of nations; 3 B. & P. 215, per Ld. Alvanley, C. J.; or, if there be any ambiguity as to what was the ground of condemnation ; it is not conclusive. Dalgleish v. Hodgson, 7 Bing. 495, 504. 5 Ibid.; 1 Stark, on Evid. pp. 228-232, 246, 247, 248; Gelston v. Hoyt, 3 Wheaton, 246 ; Williams v. Armroyd, 7 Cranch, 423. CHAP, v.] KBOORDS AND JUDICIAL WRITINGS. 717 sort it is wholly immaterial whether the judgment be of ac- quittal or of condemnation. In both cases it is equally con- clusive.^ But the doctrine, however, is always to be under- stood with this limitation, that the judgment has been obtained bond fide and without fraud; for if fraud has inter- vened, it will doubtless avoid the force and validity of the sentence.^ So it must appear that there have been regular proceediags to found the judgment or decree ; and that the parties in interest in rem have had notice, or an opportunity to appear and defend their interests, either personally, or by their proper representatives, before it was pronounced ; for the common justice of all nations requires that no condem- nation shall be pronounced, before the party has an oppor- tunity to be heard." ^ § 542. Proceedings also by creditors against the personal property of their debtor, in the hands of third persons, or against debts due to him by such third persons, (commonly called the process of foreign attachment, or garnishment, or trustee process,) are treated as in some sense proceedings in rem, and are deemed entitled to the same consideration.* But in this last class of cases we are especially to bear in mind, that, to make any judgment effectual, the Court must possess and exercise a rightful jurisdiction over the res, and also over the person, at least so far as the res is concerned ; otherwise it will be disregarded. And if the jurisdiction over the res be well founded, but not over the person, except as 1 Ibid. 2 Duchess of Kingston's case, 11 State Trials, pp. 261, 262; S. C. 20 Howell, State Trials, p. 355 ; Id. p. 538, the opinion of the Judges ; Brad- street V. The Neptune Insur. Co. 3 Sumner, 600 ; Magoun v. The New England Insur. Co. 1 Story, R. 157. If the foreign Court is constituted by I persons interested in the matter in dispute, the judgment is not binding. > Price V. Dewhurst, 8 Sim. 279. 3 Sawyer v. Maine Fire and Mar. Ins. Co. 12 Mass. 291; Bradstreet v. The Neptune Ins. Co. 3 Sumner, 600 ; Magoun v. N. England Insur. Co. 1 Story, R. 157. * See cases cited in 4 Cowen, R. 520, 521, n. ; Story, Confl. Laws, § 549 ; Holmes v. Remsen, 20 Johns. 229 ; Hull v. Blake, 13 Mass. 153 ; McDaniel V. Hughell 3 East, 366 ; Phillips v. Hunter, 2 H. Black. 402, 410. 718 LAW OP EVIDENCE. [PAKT III., to the res, the judgment will not be either conclusive or binding upon the party in personam, although it may be in rem} § 543. In all these cases the same principle prevails, that the judgment, acting in rem, shall be held conclusive upon the title and transfer and disposition of the property itself, in whatever place the same property may afterwards be found, and by whomsoever the latter may be questioned ; and whether it be directly or incidentally brought in question. But it is not so universally settled, that the judgment is con- clusive of all points which are incidentally disposed of by the judgment, or of the facts or allegations upon which it pro- fesses to be founded. In this respect, different rules are adopted by different States, both in Europe and in America. In England, such judgments are held conclusive, not only in rem, but also as to all the points and facts which they pro- fessedly or incidentally decide.^ In some of the American States the same doctrine prevails. While in other American States, the judgments are held conclusive only in rem, and may be controverted as to all the incidental grounds and facts on which they profess to be founded.^ § 544. A similar doctrine has been contended for, and in 1 Story, Confl. L'ajrs, § 592 a. See also Id. § 549, and note ; Bissell «. Briggs, 9 Mass. 498*| 3 Burge, Comm. on Col. & For. Law, pt. 2, ch. 24, p. 1014-1019. 2 In Blad v. Bamfield, decided by Lord Nottingham, and reported in 3 Swanst. 604, a perpetual injunction was awarded to restrain certain suits of trespass and trover for seizing the goods of the defendant (Bamfield) for trading in Iceland, contrary to certain privileges granted to the plaintiff and others. The property was seized and condemned in the Danish Courts. Lord Nottingham held the sentence conclusive against the suits and awarded the injunction accordingly. 3 Story, Confl. Laws, § 593. See 4 Cowen, R. 522, n. and cases there cited ; Vandenheuvel v. U. Insur. Co. 2 Cain. Cases in Err. 217; 2 Johns. Cases, 451; Id. 481 ; Robinson v. Jones, 8 Mass. 536; Maley v. Shattuek, 3 Cranch, 488; 2 Kent, Comm. Lect. 37, pp. 120, 121, 4th edit., and cases there cited ; Tarlton ?'. Tai-lton, 4 M. & Selw. 20 ; Peters v. Warren Insur. Co. 3 Sumn. 389 ; Gelston u. Hoyt, 3 Wheat. 246. , CHAP, v.] EECORDe AND JUDICIAL WEITINGS. T1& many cases successfully, in favor of sentences which touch the general capacity of persons, and those which concern mar- riage and divorce. Foreign Jurists strongly contend that the decree of a foreign Court, declaring the state [status) of a person, and placing him, as an idiot, or a minor, or a prodi- gal, under guardianship, ought to be deemed of universal authority and obligation. So it doubtless would be deemed, in regard to all acts done within the jurisdiction of the sover- eign whose tribunals pronounced the sentence. But in the United States the rights and powers oi guardioMS are consid- eted as strictly local ; and no guardian is' admitted to have any right to receive the profits, or to assume the possession of the real estate, or to control the person of his ward, or to maintain any action for the personalty, out of the States, under whose authority he was appointed, without having received a due apppintment from the proper authority of the State, within which the property is situated, or the act is to be done, or to whose tribunals resort is to be had. The same rule is also applied to the case of executors a/nd admin- istrators} § 545. In regard to ma/rriages, the general principle is, that between persons sm juris, marriage is to be decided by the law of the place where it is celebrated. If valid there, it is valid everywhere. It has a legal ubiquity of obligation. If invalid there, it is invalid everywhere. The most prominent, if not the only known exceptions to this rule, are marriages involving polygamy and incest ; those prohibited by the pub- lic law of a country fi:om motives of policy ; and those cele- brated in foreign countries by subjects entitling themselves, under special circumstances, to the benefit of the laws of their own country.^ As to sentences confirming ma/rriages^ 1 Story, Confl. Laws, §§ 499, 504, 594 ; Morrell v. Dickey, 1 Johns. Ch. 153 ; Kraft v. Wickey, 4 G. & J. 332 ; Dixon v. Raoisay, 3 Cranch, 319. See as to foreign executors and administrators, Story, Confl. Laws, § 513- 523 ; [^Supra, § 525, and notes.] 2 Story, Confl. Laws, §§ 80, 81, 113. [See^osif, Vol. 2, (7th edit.) § 460^ 464, tit. Marriage.] T20 LAW OP EVIDENCE. [PART III. some English Jurists seem disposed to concur with those of Scotland and America, in giving to them the same conclu- siveness, force, and effect. If it were not so, as Lord Hard- wicke observed, the rights of mankind would be very preca- rious. But others, conceding that a judgment of a third country, on the validity of a marriage not within its territo- ries, nor had between subjects of that country, would be entitled to credit and attention, deny that it -would be uni- versally binding.' In the United States, however, as weU as in Scotland, it is firmly held, that a sentence of divorce, obtained bond fide and without fraud, pronounced between parties actually domiciled in the country, whether natives or foreigners, by a competent tribunal, having jurisdiction over the case, is valid, and ought to be everywhere held a com- plete dissolution of the marriage, in whatever country it may have been originally celebrated.^ § 546. " In the next place, as to judgments in personam which are sought to be enforced by a suit in a foreign tribu- nal. There has certainly been no inconsiderable fluctuation of opinion in the English Courts upon this subject. It is admitted on all sides, that, in such cases, the foreign judg- ments are primd facie evidence to sustain the action, and are to be deemed right until the contrary is established ; ^ and of course, they may be avoided, if they are founded in fraud, or are pronounced by a Court not having any competent juris- • Roach V. Garvan, 1 Ves. 157 ; Story, Corifl. Laws, §§ 595, 696 ; Sinclair V. Sinclair, 1 Hagg. Consist. E. 297 ; Scrimshire v. Scrimshire, 2 Hagg. Consist. R. 395, 410. 3 Story, Confl. Laws, § 597. See also the lucid judgment delivered by Gibson, C. J., in Dorsey v. Dorsey, 7 Watts, 350. The whole subject of foreign divorces has received a masterly discussion by Mr. Justice Story, in his Commentaries on the Conflict of Laws, ch. vii. § 200-230 b. 3 See Walker v. Witter, 1 Doug. 1, and cases there cited; Arnold v. Redfern, 3 Bing. 353 ; Sinclair v. Fraser, cited 1 Doug. 4, 5, note ; Houl- ditch V. Donegal, 2 Clark & Finnell, 470 ; S. C. 8 Bligh, 301 ; Don v. Lipp- man, 5 Clark & Finn. 1, 19, 20; Price v. Dewhurst, 8 Sim. 279; Alivon v. Furnival, 1 Cromp. Mees. & Rose. 277; Hall v. Odber, 11 East, 118; Rip- ple V. Ripple, 1 Rawle, 386. CHAP, v.] RECORDS AND JUDICIAL WRITINHS. 721 diction over the cause.^ But the question is, whether they are not deemed conclusive ; or whether the defendant is at liberty to go at large into the original merits, to show that the judgment ought to have been different upon the merits, although ohtsiined. bond fide. If the latter course be the cor- rect one, then a still more embarrassing consideration is, to what extent, and in what manner, the original merits can be properly inquired into." ^ But though there remains no in- considerable diversity of opinion among the learned Judges of the different tribunals, yet the present inclination of the English Courts seems to be, to sustain the conclusiveness of foreign judgments.^ * — 1 See Bowles v. Orr, 1 Younge & Coll. 464 ; Story, Confl. Laws, §§ 544, 545-550 ; Ferguson v. Mahon, 3 Perry & Dav. 143 ; 11 Ad. & El. 179, S. C. ; Price V. Dewhurst, 8 Simons, 279, 302; Don v. Lippman, 5 Clark & Finn. 1, 19, 20, 21 ; Bank of Australasia v. Nias, 15 Jur. 967. So, if the defendant was never served with process. Ibid. And see Henderson v. Henderson, 6 Ad. & El. 288, N. S. 2 Story, Confl. Laws, § 603. 3 Id. §§ 604, 605, 606. See Guinness v. Carroll, 1 Barn. &_^Adolph. 459 ; Becquet v. McCarthy, 2 B. & A. 951. In Holditch v. Donegal', 8 Bligh, 301, 337-340, Lord Brougham held a foreign judgment to be only prima facie evidence, and gave his reasons at large for that opinion. On the other hand, Sir L. Shadwell, in Martin v. MchoUs, 3 Sim. ,458, held the contrary opin- ion, that it was conclusive ;> and also gave a very elaborate judgment upon the point, in which he reviewed the principal authorities. Of course, the learned Judge meant to except, and did except in a later case, (Price v. Dewhurst, 8 Sim. 279, 302,) judgments which were produced by fraud. See also Don v. Lippman, 5 Clark & Finnell. 1, 20, 21 ; Story, Confl. Laws, § 645-550, 605 ; Alivon v. Furnival, 1 Cromp. Mees. & Kosc. 277, 284. "It is, indeed, very difficult," observes Mr. Justice Story, "to perceive what could be done, if a different doctrine were maintainable to the full extent of opening all the evidence and merits of the cause anew, on a suit upon the foreigd judgment. Some of the witnesses may be since dead ; some of the vouchers may be lost or destroyed. The merits of the case, as formerly be- fore the Court, upon the whole evidence, may have been decidedly in favor of the judgment ; upon a partial possession of the original evidence, they may now appear otherwise. Suppose a case purely sounding in damages, such as an action for an assault, for slander, for conversion of property, for a malicious prosecution, or for a criminal conversation ; is the defendant to be at liberty to re-try the whole merits, and to make out, if he can, a new case, upon new evidence ? Or, is the Court to review the former decision, like a Court of Appeal, upon the 0I4 evidence ? In a case of covenant, or of debt, vol. I. 61 722 LAV OF EVIDENCE. [PART III. § 547. " The general doctrine maintained in the Americun Cowrts, in relation to foreign judgments in personam, cer- tainly is, that they are primd facie evidence ; but that they are impeachable. But how far, and to what extent, this doctrine is to be carried, does not seem to be definitely settled. It has been declared that the jurisdiction of the Court, and its power over the parties and the things in con- troversy, may be inquired into ; and that the judgment may be impeached for fraud. Beyond this, no definite lines have as yet been drawn." ^ § 548. We have already adverted to the provisions of the or of a breach of contract, are all the circumstances to be reexamined anew ? If they are, by what laws and rules of evidence and principles of justice is the validity of the original judgment to be tried ? Is the Court to open the judgment, and to proceed ex cequo et bono f Or is it to administer strict law, and stand to the doctrines of the local administration of justice ? Is it to act upon the rules of evidence acknowledged in its own jurisprudence, or upon those of the foreign jurisprudence ? These and many more questions might be put, to show the intrinsic difficulties of the subject. Indeed the rule, that the judgment is to be primd facie evidence for the plaintiff, would be a mere delusion, if the defendant might still question it, by opening all or any of the original merits on his side ; for, under such circumstances, it would be equivalent to granting a new trial. It is easy to understand that the defend- ant may be at liberty to impeach the original justice of the judgment, by showing that the Court had no jurisdiction ; or, that he never had any notice of the suit ; or, that it was procured by fraud ; or, that upon its face it is founded in mistake ; or, that it is irregular, and bad by the local law, Fori . rei judicaiw. To such an extent, the doctrine is intelligible and practicable. Beyond this, the right to impugn the judgment is in legal effect the right to re-try the merits of the original cause at large, and to put the defendant upon proving those merits." See Story, Confl. LawB,'§ 607; Alivon v. Furnival, 1 Cromp. Mees. & Rose. 277. 1 Story, Confl. Laws, § 608. See also 2 Kent, Comm. 119-121 ; and the valuable notes of Mr. Metcalf to his edition of Starkie on Evid. Vol. 1, pp. 232, 233, (6th Am. ed.) ; Wood v. Watkinson, 17 Conn. 500. The Ameri- can cases seem further to agree, that when a foreign judgment comes iti- cidentally in question, as, where it is the foundation of a right or title de- rived Under it, and the like, it is conclusive. If a foreign judgment proceeds upon an error in law, apparent upon the face of it, it may be impeached everywhere ; as, if a French Court, professing to decide according to the law of England, clearly mistakes it. KovelU v. Rossi, 2 B. & Ad. 757. CHAP, v.] RECORDS AND JUDICIAL WRITINGS. 723 Constitution and Statutes of the United States, in regard to the admissibility and effect of the judgments of one State in the tribunals of another.^ By these provisions, such judgments authenticated as the statutes provide, are put upon the same footing as domestic judgments.^ " But this," observes Mr. Justice Story, " does not prevent an inquiry into the jurisdic- tion of the Court, in which the original judgment was ren- dered, to pronounce the judgipent, nor an inquiry into the right of the St^e to exercise authority over the parties, or the sub- ject-matter, nor an inquiry whether the judgment is founded in, and impeachable for, a manifest fraud. The Constitution did not mean to confer any new power upon the States ; but simply to regulate the effect of their acknowledged jurisdic- tion over persons and things within their territory. It did not make the judgments of other States domestic judg- ments, to aU intents and purposes ; but only gave a general validity, faith, and credit to them as evidence.^ No execu- tion can issue upon such judgments, without a new suit in the tribunals of other States. And they enjoy not the right of priority, or privilege, or lien, which they have in the State where they are pronounced, but that only which the Lex fori gives to them by its own laws, in the character of foreign judgments." * 1 Supra, §§ 504, 505, 506. And see Flourenoy v. Durke, 2 Brev. 2Qj6. 2 Taylor v. Bryden, 8 Johns. 173. Where the jurisdiction of an inferior Court depends on a fact, which such Court must necessarily and directly decide, its decision is taken as conclusive evidence of the fact. Britain v. Kinnaird,lB. &B.432; Betts ». Bagley, 12 Pick. 572,582, per Shaw, C. J.; Steele v. Smith, f Law Rep. 461. 3 See Story's Comment, on the Constit. U. S. ch. 29, § 1297-1307, and cases there cited; Hall v. Williams, 6 Pick. 237 ; Bissell v. Briggs, 9 Mass. 462 ; Shumway v. Stillman, 6 Wend. 447; Evans v. Tarleton, 9 Serg. & R. 260; Benton v. Burgot, 10 Serg. & R. 240 ; Hancock v. Barrett, 1 Hall, 155 ; S. C. 2 Hall, 302 ; Wilson v. Niles, 2 Hall, 358 ; Hoxie v. Wright, 2 Verm. 263 ; Bellows V. Ingraham, 2 Verm. 573; Aldricb v. Kinney, 4 Conn. 380; Ben- nett V. Morley, 1 Wilcox, 100. See further, I Kent, Comm. 260, 261, and note (d). As to the eflfect of a discharge under a foreign insolvent law, see the learned judgment of Shaw, C. J., in Betts v. Bagley, 12 Pick. 572. * Story, Confl. Laws, § 609 ; McElmoyle v. Cohen, 13 Peters, 312, 328, 829 ; Story, Confl. Laws, § 582 a, note. 724 LAW OF EVIDENCE. [PART III. § 549. The Common Law recognizes no distinction what- ever, as to the effect of foreign judgments, whether they are between citizens, or between foreigners, or between citizens and foreigners ; deeming them of equal obligation in all cases, whoever are the parties.^ § 550. In regard to the decrees and sentences of Courts, exercising any branches of the Ecclesiastical jurisdiction^ the same general principles govern, which we ha^ already stated.^ The principal branch of this jurisdiction in exist- ence in the United States, is that which relates, to matters of probate and administration. And as to these, the inquiry, as in other cases, is, whether the matter was exclusively within the jurisdiction of the Court, and whether a decree or judgment has been passed directly upon it. If the affirm- ative be true, the decree is conclusive. Where the decree is of the nature of proceedings in rem, as is generally the case in matters of probate and adtriinistration, it is conclusive, like those proceedings, against all the world. But where it is a matter of exclusively private litigation, such as, in assign- ments of dower, and some other cases of jurisdiction con- ferred by particular statutes, the decree stands upon the foot- ing of a judgment at Common Law.^ Thus, the probate of a will at least as to the personalty, is conclusive in civil cases, in all questions upon its execution and validity.* The grant of letters of administration is, in genevsl, primdt facie evidence of the intestate's death ; for only upon evidence of that fact ought they to have been granted.^ And if the grant 1 Story, Confl. Laws, § 610. * 2 2 Smith's Leading Cases, 446-448. 3 Supra, §§ 525, 528. * Poplin V. Hawke, 8 N. Hamp. 124; 1 Jarman on Wills, pp. 22, 23, 24, and notes by Perkins ; Langdon v. Goddard, 3 Story, B.. 1. See post, Vol. 2, (7th ed.) §§ 315, [673,] 693. [A decree of a probate court of another State, admitting to probate a will within its jurisdiction, is conclusive evidence, if duly authenticated, of the validity of the will, upon an application to prove it in Massachusetts ; even when no notice of the offer of the will for probate was given, if by the law of that State no notice was required. Creppen v. Dexter, 13 Gray, 330.] 5 Thompson v. Donaldson, 3 Esp. 63 ; French v. French, 1 Dick. 268 i CHAP, v.] RECORDS AND JDDICUL WRITINGS. 725 of administration turned upon the question as to which of the parties was next of kin, the sentence or decree upon that question is conclusive everywhere, in a suit between the same parties for distribution.^ Bat the grant of administra- tion upon a woman's estate determines nothing as to the fact whether she were a feme covert or not; for that is a collateral fact, to be collected merely by inference from the decree or grant of administration, and was not the point directly tried.^ Where a Court of Probate has power, to grant letters of guardianship of a lunatic, the grant is con- clusive of his insanity at that time, and of his liability, there- fore, to be put under guardianship, against all persons subse- quently dealing directly with the lunatic, instead of dealing, as they ought to do, .with the guardian.^ § 551. Decrees in Chancery stand upon the same princi- ples with judgments at Common Law, which have already been stated. Whether the statements in the bill are to be taken conclusively against the complainant as admissions by him, has been doubted ; but the prevailing opinion is sup- posed to be against their conclusiveness, on the ground that the facta therein stated are frequently the mere suggestions of counsel, made for the purpose of obtaining an answer, under oath.* If the bill has been sworn to, without doubt Succession of Hamblin, 3 Rob. Louis. R. 130 ; Jeffers v. Radcliff, 10 N. Hamp. R. 242. Biit if the fact, that the intestate is living, when pleadable in abatement is not so pleaded, the grant of administration is conclusive. Newman v. Jenkins, 10 Pick. 515. In Moons v. De Bernales, 1 Russ. 301, the general practice was stated and not denied to be, to admit the letters of administration, as sufficient proof of the death, until impeached ; but the Master of the Rolls, in that case, which was a foreign grant of administra- tion, refused to receive them ; but allowed the party to examine witnesses to the fact 1 Barrs v. Jackson, 1 Phil. Ch. R. 582; 2 T. & C. 585; Thomas v. Ket- teriche, 1 Vez. 333. 8 Blackham's case, 1 Salk. 290, per Holt, C. J. See also Hibsham v. Dul- leban, 4 Watts, 183. 3 Leonard v. Leonard, 14 Pick. 280. But it is not conclusive against his subsequent capacity to make a will. Stone v. Damon, 12 Mass. 488. 4 Pos'W. Sy bourn, 7 T. R. 3. The bill is not evidence against the party in 61* 726 LAW OF EVIDENCE. [?ART III. the party would be held bound by its statements, so far as they are direct allegations of fact. The admissibility and effect of the answer of the defendant is governed by the same rules.^ But a demurrer in Chancery does not admit the facts charged in the bill; for if it be overruled, the defendant may still answer. So it is, as to pleas in Chan- cery ; these, as well as demurrers, being merely hypothetical statements, that, supposing the facts to be as alleged, the defendant is not bound to answer.^ But pleadings, and depositions, and a decree, in a former suit, the same title being in issue, are admissible as showing the acts of parties, who had the same interest in it as the present party, against whom they are offered.' § 552. In regard to depositions, it is to be observed, that, though informally taken, yet as mere declarations of the witness, under his hand, they are admissible against him, wherever he is a party, like any other admissions ; or, to con- tradict and impeach him, when he is afterwards examined as a witness. But, as secondary evidence, or as a substitute for his testimony vivd voce, it is essential that they be regulsirly taken, under legal proceedings duly pending, or in a case and manner provided by law.* And though taken in a for- ■whose name it is filed, until it is shown that he was privy to it. When this privity is established, the bill is evidence that such a suit was instituted, and of its subject-matter ; but not of the plaintiff's admission of the' truth of the matters therein stated, unless it was sworn to. The proceedings afler answer are admissible in evidence of the privity of the party in whose name the bill was filed. Boileau v. Rudlin, 12 Jur. 899; 2 Exch. 665. And see Bunden ». Cleveland, 4 Ala. 225 ; Bull. N. P. 235. See further, as to the admission of bills and answers, and to what extent, Bandall v. Parramore, 1 Cranch, 409 ; Roberts v. Tennell, 3 Monr. 247 ; Clarke v. Babinson, 5 B. Monr. 55 ; Adams v. McMillan, 7 Port. 73. 1 Supra, §§ 171, 179, 186, 202. 2 Tompkins v. Ashby, 1 M. & Malk. 32, 33, per Abbott, Ld. C. J. 3 Viscount Lorton v. Earl of Kingston, 5 Clark & Fin. 269. 4 As to the manner of taking depositions, and in what cases they may be taken, see supra, § 320-325. [The answers of a party to a suit to interrog- atories filed in a case, are competent evidence against Jiim, as admissions on his part of the facts stated therein in another suit, although the issbes in the two suits be different. Williams v. Cheney, 3 Gray, 215, 220.] CHAP, v.] RECORDS AND JUDICIAL WRITINGS. 727 eign State, yet if taken to be used in a suit pending here, the forms of our law, and not of the foreign law, must be pursued.^ But if the deposition was taken in perpetuam, the forms of the law under which it was taken 'must have been strictly pursued, or it cannot be read in evidence.^ If a bill in equity be dismissed merely as being in its substance unfit for a decree, the depositions, when offered as secondary evi- dence in another suit, will not on that account be rejected. But if it is dismissed for irregularity, as, if it come before the Court by a bill of revivor, when it shquld have been by an original bill ; so that in truth there was never regularly any such cause in the Court, and consequently no proofs, the depositions cannot be read; for the proofs cannot be exemplified without bill and answer, and they cannot be read at law, unless the bill on which they were taken can be read.^ § 553. We have seen, that in regard to the admissibility of a former judgment in evidence it is generally necessary that there be a perfect mutuality between the parties ;' neither being concluded, unless both are alike bound.* But with 1 Evans v. Eaton, 7 Wheat. 426 ; Farley v. King, S. J. Court, Maine, in Lincoln, Oct. Term, 1822, per Preble, J.' But depositions taken in a foreign country, under its own laws, are admissible here in proof of probable cause, for the arrest and extradition of a fugitive from justice, upon the prelim- inary examination of his case before a Judge. See M€lzger's case, before Betts, J., 5 N. Y. Legal Obs. 83. 2 Gould V. Gould, 3 Story, R. 516. 3 Backhouse v. Middleton, 1 Ch. Cas. 173, 175 ; Hall v. Hoddesdon, 2 P. Wms. 162; Vaughan v. Fitzgerald, 1 Sch. & Lefr. 316. *' * Supra, § 524. The reason given by Chief Baron Gilbert, for applying the rule, to the same extent, to depositions taken in Chancery is, that other- wise great mischief would ensue ; "for then a man, that never was party to the Chancery proceedings, might use against his adversary all the deposi- tions that made against him, and he, in his own advantage, could not use the depositions that made for him, because the other party not being concerned in the suit, had not the liberty to cross-examine,and therefore cannot be encountered with any depositions, out of the cause." 1 Gilb. Evid. 62 ; Rushworth i7. Countess of Pembroke, Hardr. 472. But the exception allowed in the, text, is clearly not within this mischief, the right of cross-ex- amination being unlimited, as to the matters in questipn. 728 LAW OE EVIDENCE. [PART III. respect to depositions, though this rule is admitted in its general principle, yet it is applied with more latitude of dis- cretion ; and complete mutuality, or identity of all the par- ties, is not required. It is generally deemed sufficient, if the matters in issue were the same in both cases, and the party, against whom the deposition is offered, had full power to cross-examine the witness. Thus, wh6re a biU was pending in Chancery, in favor of one plaintiff against several defend- ants, upon which the Court ordered an issue of devisavit vel non, in which the defendants in Chancery should be plain- tiffs, and the plaintiff in Chancery defendant ; and the issue was found for the plaintiffs; after which the plaintiff in Chancery brought an ejectment on his own demise, claio;- ing as heir at law of the same testator, against one of those defendants alone, who claimed as devisee under the will formerly in controvery; it was held, that the testimony of one of the subscribing witnesses to the will, who was exam- ined at the former trial, but had. since, died, might be proved by the defendant in the second action, notwithstanding the parties were not all the same ; for the same matter was in controversy, in both cases, and the lessor of the plaintiff had precisely the same power of objecting to the competency of the witness, the same right of calling witnesses to discredit or contradict his testimony, and the same right of cross- examination, in the one case, as in the other.^ If the power of cross-examination was more limited in the former suit, in regard to the matters in controversy in the latter, it would seem'that the testimony ought to be excluded.^ The same rule applies to privies, as well as to parties. 1 Wright V. Tatham, 1 Ad. & El. 3 ; 12 Vin. Abr. tit. Evidence, A. b. 31, pi. 45, .47. Aa to the persons who are to be deemed parties, .see supra, §§ 623, 535. 2 Hardr. 315; Cazenove v. Vaughan, 1 M. & S. 4. It has been held that the deposition of a witness before the coroner, upon an inquiry touching the death of a person killed by a collision of vessels, was admissible in an action for the negligent management of one of them, if the witness is shown to be beyond sea. Silb v. Brown, 9 C. & P. 601, 603, per Coleridge, J.; Bull. N. P. 242 ; Kex v. Eriswell, 3 T. R. 707, 712, 721 ; J. Kely.'SS. CHAP, v.] RECOKDS AND JUDICIAL WRITINGS. 729 § 554. But though the general rule, at law, is, that no evidence shall be admitted, but what is or might be under the examination of both parties ; \ yet it seems clear, that, in Equity, a deposition is not, of course, inadmissible, in evi- dence, because there has been no cross-examination, and no waiver of the right. For if the witness, after his examina- tion on the direct interrogatories, should refuse to answer the cross-interrogatories, the party producing the witness will not be deprived of his direct testimony, for, upon application of the other party, the Court would have compelled him to answer.^ So, after a witness was examined for the plaintiff, but before he could be cross-examined, he died; the Court ordered his deposition to stand ; ^ though the want of the cross-examination ought to abate the force of his testimony.* So, where the direct examination of an infirm witness was taken by the consent of parties, but no'cross-interrogatories were ever filed, though the witness lived several months afterwards, and there was no proof that they might not have been answered, if they had been filed ; it was held that the omission to file them was at the peril of the party, and that the deposition was admissible.^ A new commission may be granted, to cross-examine the plaintiflF's witnesses abroad, upon subsequent discovery of matter for such examination.^ But where the deposition of a witness, since deceased, was taken, and the direct examination was duly signed by the magistrate, but the cross-examination, which was taken on a subsequent day, was not signed, the whole was held inad-- missible.'^ § 555. Depositions, as well as verdicts, which relate to a 1 Cazenove v. Vaughan, 1 M. & S. 4, 6 ; Attor.-Gen. v. Davison, 1 McCl. & Y. 160-; Gass v. Stinson, 3 Sumn. 98, 104, 105. 2 Courtney v. Hoskius, 2 Russ. 253. 3 Arundel v. Arundel, 1 Chan. E. 90. * O'Callaghan v. Murphy, 2 Sch. & Lef. 158; Gass v. Stinson, 3 Sumu. 98, 106, 107. But see Kissam v. Porrest, 25 Wend.*651. 5 Gass u. Stinson, 3 Sumn. 98, where this subject is fully examined by Story, J. 6 King of Hanover v. Wheatley, 4 Beav. 78. 7 Regina v. France, 2 M. & Rob. 207. 730 LAW OP EVIDENCE. [PART IIL custom, or prescription, or pedigree, where reputation would be evidence, are admissible against strangers ; for as the dec- larations of persons deceaged would be admissible in such cases, d fortiori their declarations on oath are so.^ But in all cases at law, where a deposition is offered as secondary evi- dence, that is, as a substitute for the testimony of the witness vivd voce, it must appear that the witness cannot be person- ally produced ; unless the case is provided for by statute, or by a rule of the Court.^ § 556. The last subject of inquiry under this head, is that of inquisitions. These are the results of inquiries, made un- der competent public authority, to ascertain matters of public interest and concern. It is said that they are analogous to proceedings in rem, being made on behalf of the public; and that therefore no one can strictly be said to be a stranger to them. But the principle of their admissibility in evidence, between private persons, seems to be, that they are matters of public and general interest, and therefore within some of the exceptions to the rule in regard to hearsay evidence, which we have heretofore considered.^ Whether, therefore, the adjudication be founded on oath or not, the principle of its admissibility is the same. And moreover, it is distin- guished from other hearsay evidence, in having peculiar guaranties for its accuracy and fidelity.* The general rule in regard to these documents, is, that they are admissible in evidence, but that they are not conclusive except against\the parties immediately concerned, and their privies. Thus, an inquest of office, by the Attorney-General, for lands escheat- ing to the government by reason of alienage, was held to be evidence of title, in all cases, but not conclusive against any person, who was not tenant at the time of the inquest, or party or privy thereto, and that such persons, therefore, might show that there were lawful heirs in esse, who were not. 1 Bull. N. P. 239, 240; Supra, § 127-130, 139, 140. 8 Supra, §§' 322, 323. " 3 Supra, §,127-140. 4 Phil. & Am. on Evid. 578, 579 j 1 Stark. Evid. 260, 261, 263. CHAP, v.] RECORDS AND JUDICIAL WRITINGS. 731 aliens.^ So, it has been repeatedly held, that inquisitions of lunacy may be read ; but that they are not generally conclu- sive against persons not actually parties.^ But inquisitions, extrajudicially taken, are not admissible in evidence.^ 1 Stokes ti. Dawes, 4 Mason, 268, per Story, J. 2 Sergeson v. Sealey, 2 Atk. 412; Den u. Clark, 5 Halst. 21 7,. per Ewing, C. J. ; Hart i-. Deamer, 6 Wend. 497; Faulder v. Silk, 3 Campb. 126; 2 Madd. Chan. 578. 3 Glossop V. Pole, 3 M. & S. 175 ; Latkow v. Earner, 2 H. Bl. 437. See supra, § 550, that the inquisition is conclusive against persons, who under- take subsequently to deal with the lunatic, instead of dealing with the guar- dian, and seek to avoid his authority, collaterally, by showing that the party was restored to his reason. 732 LAW OF EVIDENCE. fPART III. CHAPTER VI. OP PKIVATE WRITINGS. § 557. The last dass of Written Evidence, which we pro- pose to consider, is that of Private Writings. And in the discussion of this subject, it is not intended separately to mention every description of writings, comprised in this class ; but to state the principles which govern the proof,^ admissibility, and effect of them all. In general, all private writings, produced in evidence, must be proved to be genu- ine ; but in what is now to be said, particular reference is. had to solemn obligations and instruments, under the hand of the party, purporting to be evidence of title ; such as deeds, bills, and notes. These- must be produced, and the execution of them generally be proved; or their absence must be duly accounted for, and their loss supplied by sec- ondary evidence. ^ § 558. And first, in regard to the production of such docu- hients ; if the instrument is lost, the party is required to give some evidence, that such a paper once existed, though slight evidence is sufi&cient for this purpose, and that a bond fide and diligent search has been unsuccessfully made for it in the place where it was most likely to be foundj if the nature of the case admits such proof; after which, his own affidavit is admissible to the fact of its loss.^ The same rule prevails 1 Supra, § 849, and cases there cited. The rule is not restricted to facts peculiarly within the party's knowledge ; but permits him to state other per- tinent facts, such as, his search for the document elsewhere than Eunong his own papers. Vedder v. Wilking, 5 Benio, 64. In regard to the order of the proof, namely, whether the existence and genuineness of the paper, and of course its general character or contents must be proved before any evi- dence can be received of its loss, the decisions are not uniform. The earlier CHAE. VI.] PRIVATE WRITINGS. 733 where the instrument is destroyed. What degree of dili- gence in the search is necessary, it is not easy to define, as each case depends much on its peculiar circumstances, and the question, whether the loss of the instrument is sufficiently proved to admit secondary evidence of its contents, is to be determined by the Court and not by the Jury.^ But it seems, that, in general, the party is expected to show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the and some later cases require that this order should be strictly observed. Goodier v. Lake, 1 Atk. 446 ; Sims v. Sims, 2 Rep. Const. Ct. 225 ; Kim- ball V. Morrell, 4 Greenl. 368; Stockdale v. Young, 3 Strobh. 501, n. In other cases it has been held, that in the order of proof, the loss or destruc- tion of the paper must first be shown. Willis v. McDole, 2 South. 501 ; Ster- ling V. Potts, Id. 773; Shrouders v. Harper, 1 Harringt. 444; Finn v. "M'Gonigle, 9 Watts & Serg. 75 ; Murray v. Buchanan, 7 Blackf. 549 ; Parke v. Bird, 3 Barr, 360. But on the one hand it is plain, that the proof of the loss of a document necessarily involves some descriptive proof of the document itself, though not to the degree of precision subsequently neces- sary in order to estaj)lish a title under it ; and on the other hand, a strong probability of its loss has been held sufficient to let in the secondary evidence of its contents. Bouldin v. Massie, 7 Wheat. 122, 154, 155. These con- siderations will go far to receJncile most of the cases apparently conflicting. In Fitch V. Bogue, 19 Conn. 285, the order of the proof was held to be im- material, and to rest in the discretion of the Court. It is sufficient, if the party has done all that could reasonably be expected of him, under the cir- cumstances of the case, in searching for the instrument. Kelsey v. Han- mer, 18 Conn. R. 311. After the loss of a deed has been established, the secondary evidence of the contents or substance of the contents of its opera- tive parts must be clear and direct, and its execution must be distinctly proved. And th^declarations of the grantor are admissible, in corroboration of the other evidence. Metcalf jj. Van Benthuysen, 3 Comst. 424 ; Mariner I). Saunders, 5 Gilm. 113. 1 Page V. Page, 15 Pick. 368. [While it is a general rule that the affida- vit of the plaintiff must be produced where a paper is alleged to be lost, of which he must be presumed to have the custody, before secondary evidence of its contents can be admitted, yet the rule is not inflexible. Where the nom- inal party to the record is not the party actually seeking to recover, and the party interested has used due diligence to find the plaintiff and produces proof that he has absconded to parts unknown, he has done all that can be reasonably required of him, and the production of the affidavit of the absent party to the record may be dispensed with. Foster v. Mackay, 7 Met. 531, 537.] VOL. I. 62 ' 734 LAW OF EVlDElJCE. [PART III. nature of the case would naturally, suggest, and which were accessible to him.'^ It should be recollected, that the object of the proof is merely to establish a reasonable presumption of the 16ss of the instrument ; and that this is a preliminary inquiry, addressed to the discretion of the Judge. If the paper was supposed to be of little value, or is ancient, a less degree of diligence tvill be demanded, as it will be aided by the presumption of loss, which these circumstances afford. If it belonged to the custody of certain persons, or is proved or may be presumed to have been in their possession, they must, in general, be called and sworn to account for it, if they are within reach of the process of the Court.^ And so, if it might or ought to have been deposited in a public office, or other particular place, that 'place must be searched. If the search was made by a third person, he must be called to testify respecting it. And if the paper belongs to his cus- tody, he must be served with a subposna duces tecum, to pro- duce it.^ If it be an instrument, which is the foundation of 1 Rex V. Morton, 4 M. & S. 48 ; Rex v. Castleton, 6 'T. R. 236 ; 1 Stark. Evid. 336-340 ; Willis v. McDole, 2 South. 501 ; Thompson v. Travis, 8 Scott, 85 ; Parks v. Dunklee, 3 Watts & Serg. 291 ; Gathercole v. Miall, 15 Law Journ. 179 ; Doe v. Lewis, 15 Jur. 512 ; 5 Eng. L. & Eq. R. 400. The admission of the nominal plaintiff, that he had burnt the bond, he being in- terested adversely to the real plaintiff, has been held sufficient to let in sec- ondary evidence of its contents. Shortz v. Unahgst, 3 Watts & Serg. 45. [Where a party has been deprived of an instrument by fraud, secondary evidence of its contents is admissible. Grimes v. Kimball, 3 Allen, 518. I And even where a party who offers . to prove the contents of a paper, has himself destroyed it, he may explain the circumstances o£the destruction, in order to prove the contents. Tobin v. Shaw, 45 Maine, 331.] 2 Ralph V. Brown, 3 Watts & Serg. 395. 3 The duty of the witness to produce such a document is thus laid down by Shaw, C. J. . " There seems to be no difference in principle, between compelling a witness to produce a document in his possession, under a sub- poina duces tecum, in a case where the party calling the witness has a right to the use of such document, and compelling him to give testimony, when the facts lie in his own knowledge. It has been decided, though it was formerly doubted, that a subpoena duces tecum is a writ of compulsory obligation, which the Court has power to issue, and which the witness is bound to obey, and which will be enforced by proper process to compel the production of the paper, when the witness has no lawful or reasonable excuse for with- CHAP. VI.] PRIVATE WRITINGS, 735 the action, and which, if found, the defendant may be com- pelled again to pay to a bond fide holder, the plaintiff must give sufficient proof of its destruction, to satisfy the Court and Jury that the defendant cannot be liable to pay it a second time.' And if the instrument was executed in dupli- cate, or triplicate, or more parts, the loss of all the parts must be proved, in order to let in secondary evidence of the con- tents.'* Satisfactory proof being thus made of the loss of the instrument, the party will be admitted to give secondary evi- dence of its contents.^ § 559. ^he production of private wrifings^ia ^^hich another person has an interest, may be had either by a bill of discov- holding.it. Amey v. Long, 9 East, 473; Corsen o. Dubois, 1 Holt's N. P. R. 239. But of such lawful or reasonable excuse, the Court at nisi prius, and not the witness, is to judge. And when the witness has the paper ready to produce, in obedience to the summons, but claims to retain it on the ground of legal or equitable interests of his own, it is a question to the discretion of the Court, under .the circumstances of the case, whether the witness ought to produce, or is entitled to withhold the paper." Bull v. Loveland, 10 Pick. 14. 1 Hansard v. Robinson, 7 B. & C. 90 ; Lubbock v. Tribe, 3 M. & W. 607. See also Peabody v. Denton, 2 Gall. 351 ; Anderson v. Robson, 2 Day, 495 ; Davis V. Todd, 4 Taunt. 602; Pierson v. Hutchinson, 2 Campb. 211; Row- ley V. Ball, 3 Cowen, 303; Kirby v. Si'sson, 2 Wend. 550; Murray v. Gar- rett, 3 Gall. 373; Mayor v. Johnson, 3 Campb. 324; Swift v. Stevens, 8 Conn. 431 ; Ramuz v. Crowe, 11 Jur. 715; Post, Vol. 2, § 156. 2 Bull. N. P. 254 ; Rex v. Castleton, 6 T. R. 236 ; Doe v. Pulman, 3 Ad. & El. 622, N. S. 3 See, as to secondary evidence, supra, § 84, and note. Where second- ary evidence is resorted to, for proof of an instrument which is lost or destroyed, it must, in general, be proved to have been executed. Jackson V. Frier, 16 Johns. 196 ; Kimball v. Morrell, 4 Greenl. 368 ; Kelsey v. Han- mer, 11 Conn. R. 311; Porter v. Ferguson, 4 Flor. R. 102. But if the secondary evidence is a copy of the instrument which appears to have been \ attested by a witness, it is not necessary to call this witness. Poole v. War- ren, 3 Nev. & P. 693. In case of the loss or destruction of the instrument, the admissions of the party may be proved to establish both its existence and contents. Mauri v. HeflFernan, 13 Johns. 58, 74; Thomas v. Harding, 8 Greenl. 417; Corbin v. Jackson, 14 Wend. 619. A copy of a document, taken by a machine,*worked by the witness who produces it, is admissible as secondary evidence. Simpson i>. Thoreton, 2 M. & Rob. 433. 736 LAW OF EVIDENCE. [PART III. ery, in proper cases, or in trials at law by a writ of subpmna duces tecum^ directed to the person who has them in his possession. The Courts of Common Law may also make an order for the inspection of writings in the possession of one party to a suit, in favor of the other. The extent of this power, and the nature of the order, whether it should be peremptory, or in the shape of a rule to enlarge the time to plead, unless the writing is produced, does not seem to be very clearly agreed ; ^ and, in the United States, the Courts have been unwilling to exercise the power, except where it is given by statute.^ It seems, however, to be agreed, that where the action is ex contractu, and there is but one instru- ment between the parties, which is in the possession or power of the defendant, to which the plaintiff is either an actual party, or a party in interest, and of which he has been refused an inspection, upon request, and the production of which is necessary to enable him to declare against the defendant, the Court, or a Judge at chambers, may grant 1 See the course in a parallel case, where a witness is out of the jurisdic- tion, supra, § 320. It is no sufficient answer for a witness not obeying this subpoena, that the instrument required was not material. Doe v. Kelly, 4 Dowl. 273. But see Rex v. Ld. John Russell, 7 Dowl. 693. ■•^ Supra, § 320. If the applicant has no legal interest in the writing, which he requests leave to inspect, it will not be granted. Powell v. Brad- bury, 4 M. G. & S. 541 ; 13 Jur. 349. And see supra, § 473. 3 [By the Act of Sept. 24, 1789, (1 U. S. Stat, at Large, 82,) it is pro-, vided that the Courts of the United States " shall have power in all actions at law, on motion and due notice thereof being given, to require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of pro- ceeding in Chancery ; " and in case of the non-production thereof upon such order, the Court may direct a nonsuit or default. Under this statute, an order to produce may be applied for before trial, upon notice. A prima facie case of the existence of the paper and its materiality must be made out, and the Court will then pass an order nisi, leaving the opposite party to produce, or to show cause at the trial, where alone the materiality can be finally decided. lasigi t'. Brown, 1 Curtis, C. C. 401. For other decisions under this section of the statute, see Hylton v. Brown, 1 Wash. C. C. R. 298 ; Bas v. Steele, 3 lb. 381 ; Dunham v. Riley, 4 lb. 126 ; Vasse u. Mifflin, lb. 519.] CHAP. VI.] PRIVATE WKITINGS. 737 him a rule on the defendant to produce the document, or give him a copy, for that purpose.^ Such order may also be obtained by the defendant, on a special case ; such as, if there is reason to suspect that the .document is forged, and the defendant wishes that it may be seen by himself and his witnesses.^ But, in all such cases, the application should be supported by the affidavit of the party, particularly stat- ing the circumstances.^ \ 560. When the instrument or writing is in the ha/nds or power of the adverse party, there are, in general, except in the cases above mentioned, no means at law of compelling him to produce it ; but the practice, in such cases, is, to give him or his attorney a regular notice to produce the original. Not that, on proof of such notice, he is compellable to give 1 3 Chitty's Gen. Pr. 433, 434; 1 Tidd's Pr. 590, 691, 592; 1 Paine & Duer's Pr. 486-488; Graham's Practice, p. 524 ; Lawrence v. Ocean Ins. Co. 11 Johns. 245, u. (a) ; Jackson v. Jones, 3 Cowen, 17 ; Wallis v. Mur- ray, 4 Cowen, 399 ; Denslow v. Fowler, 2 Cowen, 592 ; Davenport v. M'Kinnie, 5 Cowen, 27 ; Utica Bank v. Hilliard, 6 Cowen, 62. 2 Brush V. Gibbon, 3 Cowen, 18, ii. (a.) 3 3 Chitty's Gen. Pr. 434. This course being so seldom resorted to in thie American Common-Law Courts, a more particular statement of the practice is deemed unnecessary in this place. See Law's U. S. Courts, 35, 36. [In England it has been held that under the Common-Law Procedure Act, (1854), 17 & 18 Vict. ch. 125,) the Court will not grant a discovery of doc- uments except upon the affidavit of the party to the suit ; the affidavit of the attorney not being sufficient, although the party himself is abroad. Hersch- field u. Clark, 34 Eng. Law & Eq. 549. Before a party can be called upon to produce a document for the purposes of evidence, it must be shown that it is in his possession. Laxton v. Reynolds, 28 lb. 553*. It is not an answer to an application for an order for a discovery of documents, that they are privileged from being produced ; if such be the fact it must be shown in the affidavit made in obedience , to the order. Forshaw v. Lewis, 29 lb. 488. The right of a, plaintifif under the statute, (14 & 15 Vict. c. 99,) to inspect deeds in the defendant's custody, where such a right exists, is not limited by what is necessary to make out a ptimd facie case ; but it extends to any deeds which may tend to support or strengthen the case on the part of the plaintiff. The rule that one party has no right to inspect documents which make out the title of the other, does not apply, if they also make out bis own. Coster v. Baring, 26 lb. 365.] 62* 738 LAW OP BVIDBNCE. [PART HI. evidence against himself; but to lay a foundation for the introduction of secondary evidence of the contents of the document or writing, by showing that the party has done all in his power to produce the original.^ 1 2 Tidd's Pr. 802 ; 1 Paine & Duer's Pr. 483 ; Graham's Practice, p. 528. Notice to produce the instrument is not alone sufficient to admit the party to give secondary evidence of its contents. He must prove the existence of the original. Sharpe «. Lambe, 3 P. & D. 454. He must also show that the instrument is in the possession, or under the control, of the party required to produce it. Smith v. Sleap, 1 Car. & Kirw. 48. But of this fact very slight evidence will raise a sufficient presumption, where the instru- ment exclusively belongs to him, and has recently been, or regularly ought to be, in his possession, according to the course of- business. Henry v. Leigh, 3 Campb. 499, 502 ; Harvey v. Mitchell, 2 M. & Eob. 366 ; Uobb. v. Starkey, 2 C. & K. 143. And if the instrument is in the possession of another, in privity with the party, such as -his banker, or agent, or servant, or the like, notice to the party himself is sufficient. Baldney v. Ritchie 1 Stark. R. 338 ; Sinclair o. Stevenson, 1 C. & P. .'582 ; Burton v. Payne, 2 C. & P. 520 ; Partridge v. Coates, Ry. & M. 153, 156 ; Taplin v. Atty, 3 Bing. 164. If a deed is in the hands of an attorney, having a lien upon it, as security for money due from his client, on which ground he refuses to produce it in obedience to a subpmna duces tecum, as he justly may ; Kemp t). King, 2 M. & Rob. 437 ; Regina v. Hankins, 2 C. & K. 823 ; the party calling for it may give secondary evidence of its contents.- Doe v. Ross^ 7 M. & W. 102. So, if the deed is in Court, in the hands of a third person as mortgagee, who has not been subpoenaed in the cause, and he declines to produce it, secondary evidence of its contents is admissible ; but if the deed is not in Court, and he has not been subpoenaed, it is otherwise. In such case, the person having custody of the deed must' only state the date and names of the parties, in order to identify it. Doe ii. Clifford, 2 C. & K. 448. The notice to produce may be given verbally. Smith v. Young, 1 Campb. 440. After notice and refusal to produce a paper, and secondary evidence given of its contents, the adverse party cannot afterwards produce the document as his own evidence. Doe v. Hodgson, 4 P. & D. 142 ; 12 Ad. & El. 135, S. C. [Where the plaintiff gave notice to the defendant to pro- duce at the trial an original contract, and affixed what purported to be a copy of it to the notice, and, although the pretended copy was not in all respects correct, secondary evidence was allowed on the neglect of the defendant to produce the original, it was held, that the defendant could not use the copy attached to the notice, although certified to be correct by the plaintiff, while he had the original in his possession. Bogart v. Brown, 5 Pick. 18. In New York, It has been held that certain Courts have authority to cogapgl a defendant in a suit pending therein to produce and discover books; CHAP. VI.] ' PRIVATE WRITINGS.^ 739 ; § 561. There are three cases in which such notice to pro- duce . is not necessary. First, where the instrument to be produced and that to be proved are duplicate originals ; for, in such case, the original being in the hands of the other party, it is in his power^to contradict the duplicate original by producing the other, if they vary ; ^ secondly where the in- strument to be proved is itself a notice,,snch as a notice to quit, or notice of the dishonor of a biU of exchange ; and, third- ly, where, from the nature of the action, the defendant has notice that the plaintiff intends to charge him with possession of the instrument, as, for example, in trover for a bill of ex- change. And the principle of the rule does ndt require notice to the adverse pfirty to produce a paper belonging to a third person, of which he has fraudulently obtained possession ; as, where, after service of a subpcsna duces tecum, the adverse party had received the paper from the witness, in fraud of the subpcena? papers, and documents, in his possession or power, relating to the merits of such suit, and if the defendant refuses to comply, his answer may be stricken out, and judgment rendered against him as for a neglect to answer. Gould V. McCarty, 1 Keoftan, 575. In Georgia, a party may be required in a proper case, i^fpmna^ documents to be annexed to interrogatories pro- pounded by the party calling for them ; the Courts requiring that a copy of the documents shall be left in the place of the original to be used as such in case the original be not returned, and that the party calling for the docu- ment shall give security to the party producing it, for its being safely re- turned. Faircloth v. Jordan, 15 Geo. 511. Where the counsel in a case have agreed tha;t either party shall produce upon notice at the trial, any papers which may be in his possession, the failure of the plaintiflf, (the agent in America of a firm in London,) to pro- duce upon such notice an invoice of goods consigned to his principals in London, is not such a failure to comply with the agreement as will admit parol testimony of the contents of the invoice, for it is to be presumed that the invoice had been forwarded to the consignees. The offer of the plaintiff to prove that such was the fact, and the concession without proof by the de- fendant that it was so, preclude him from afterwards objecting that proof was not given. Turner ». Yates, 16 How. U. S. 14.] 1 Jury V. Orchard, 2 B. & P. 39, 4i ; Doe v. Somerton, 7 Ad. & El. 68, N. S. ; 9 Jur, 775, S. C. ; Swain v. Lewis, 2 C. M. & R. 261. 2 2 Tidd's Pr. 803. Proof that the adverse party, or his attorney, has the instrument in Court, does not, it seems, render notice to produce it unneces- 740 LAW OF EVIDENCE. fPART III. § 562. The notice may be directed to the partyi or to his attorney, and may be served on either ; and it must describe I sary ; for the object of the notice is not only to procure the paper, but to give the party an opportunity to provide the proper testimony to support, or impeach it. Doe v. Grey, 1 Stark. R. 283 ; Exall v. Partridge, lb. cit. ; Knight V. Marquis of Waterford, 4 Y. & Gol. 284. The rule, as to dispens. ing with notice, is the same in Equity as at Law. 2 Dan. Ch. Pr. 1023. [A rule of Court, that a notice to produce a paper must precede parol evidence of its contpnts, is waived by a party's offering to produce it. If he then fails to find it, but asks for no further time, the parol evidence is admissible. Dwinell v. Larrabee, 38 Maine, 464. For the purpose of proving that the defendant has fraudulently conveyed his real estate to third persons, copies of the deeds thereof from the registry are admissible, the originals not being presumed to be in the possession of either party to the suit. Blanchard a. Young, 11 Cush. 341, 345. But a registry copy" of a deed of land is not admissible in evidence against the grantee without notice to him to produce the original. Commonwealth v. Emery, 2 Gray, 80, 81 ; Bourne v. Boston, lb. 494, 497. In delivering the opinion of the Court in Commonwealth v. Emery, ut supra, Shaw, C. J., said, " The rule, as to the use of deeds as evi- dence, in this commonwealth, is founded partly on the rules of Common Law, but modified, to some extent, by the registry system established here by statute. The theory is this: that an original deed is in its nature more au- thentic and better evidence than any copy can be ; that a copy is in its nature secondary ; and therefore in all cases original deeds should be re- quired, if they can be had. But as this would be burdensome and expen- sive, if not impossible, in many cases, some relaxation of this rule was neces- sary for practical purposes. The law assumes that the grantee is the keeper of deeds made directly to himself; when then he has occasion to prove any fact by such deed, he cannot use a copy, because it would be offering in- ferior evidence, when in theory of law the superior is in his own possession or power. It is only on proof of the loss of the original, in such case, that any secondary evidence can be received. Our system of conveyancing, modified by the registry law, is, that each grantee retains the deed made immediately to himself, to enable him to make good his warranties. Suc- ceeding grantees do not, as a matter of course, take possession of deeds made to preceding parties, so as to be able to prove a chain of title, by a series of original deeds. Every grantee therefore is the keeper of his own deed, and of his own deed only. But there is another rule of practice aris- ing from the registry law, and the usage under it, which is, that all deeds, before being offered in evidence as proof of title, must be registered. - The register of deeds therefore is an officer of the law, with competent authority to receive, cornpare, and record deeds ; his certificate verifies the copy as a true transcript of the original, and the next best evidence to prove the exist- CHAP. VI.] PRIVATE WRITINGS. 741 the writing demanded, so as to leave no doubt that the party was aware of the particular instrument intended to be called for.^ But as to the time and place of the service, no precise rule can be laid down, except that it must be such as to enable the party, under the known circumstances of the case, to comply with the call. Generally, if the party dwells in another town than that in which the trial is had, a service on him at the place where the trial is had, or after he has left home to attend the Court, is not sufficient.^ But if the party has gone abroad, leaving the cause in the hands of his attorney, it will be presumed that he left with the attorney all the papers material to the cause, and the notice should therefore be served on the latter. The notice, also, should generally be served previous to the commencement of the trial.* ence of the deecj; though it follows as a consequence, that such copy is legal and competent evidence, and dispenses with original proof of its exe- cution by attesting witnesses. In cases therefore, in which the original, in theory of law, is not in the custody or power of the party having occasion to use it, the certified office copy is prima facie evidence of the original and its execution, subject to be controlled by rebutting evidence. But as this arises from the consideration, that the original is ndt in the power of the party re- lying on it, the rule does not apply, where such original is, in theory of law, in possession of the adverse party ; because upon notice the adverse party is bound to produce it, or put himself in such position, that any secondary evi- dence may be given. Should it be objected that, upon notice to the adverse party to produce an original, and the tender of a paper in answer to the notice, the party calling for the deed might deny that the paper tendered was the true paper called for ; it would be easy to ascertain the identity of the paper, by a comparison of the contents of the paper tendered with the copy offered, and by the official certificate, which the register of deeds is re- quired to make on the original, when it is recorded. This construction of the rule will carry out the principle on which it is founded, to insist on the better evidence when it can practically be had, and allow the secondary only when it is necessary."] 1 Rogers v. Custance, 2 M. & Rob. 179. 8 George v. Thompson, 4 Dowl. 656; Foster v. Pointer, 9 C. & P. 718; [Glenn, v. Rogers, 3 Md. 312.] See also, as to the time of service, Holt v. Miers, 9 C. & P. 191 ; Reg. v. Kitsen, 20 Eng. L. & Eq. R. 590. As to the form and service of notice to quit, see post, Yol. 2, § 322-324 ; Doe v. Som- erton, 7 Ad. & El. 58. 3 2 Tidd's Pr. 803 ; Hughes v. Budd, 8 Dowl. 315 ; Firkin v. Edwards, 9 742 1 LAW OF EVIDENCE. [PART III. § 563. The regular time for calling for the production of papers is not until the party who requites them has entered upon his case ; until which time the other party may refuse to produce them, and no cross-examination, as to their con- tents, is usually permitted.^ The production of papers, upon notice, does not make them evidence in the cause, unless the party calling for them inspects them, so as to become acquainted with their contents ; in which case, the English rule is, that they are admitted as evidence for both parties.^ The reason is, that it would give an unconscionable advan- tage, to enable a party to pry into the affairs of his adver- sary for the purpose of compelling him tO furnish evidence against himself, without, at the same time, subjecting him to the risk of making whatever he inspects evidence for both parties. But in the American Courts, the rule on this sub- ject is not uniform.^ C. & P. 478 ; Gibbons v. Powell, Id. 634 ; Bate v. Kinsey, 1 C. M. & E. 38 ; Emerson v. Fisk, 6 Greenl. 200 ; 1 Paine & Duer's Pr. 485, 486. The notice must point out, with some degree of precision, the papers required. Notice to produce " all letters, papers, and documents, touching or concerning the bill of exchange mentioned in the declaration, and the debt sought to be re- recovered," has been held too general. France w. Lucy, Ky. & M. 341. So, " to produce letters, and copies of letters, and all books relating to this cause." Jones V. Edwards, 1 McCl. & Y. 139. But notice to produce all letters writ- ten by the party to and received by the other, between the years 1837 and 1841, inclusive, was held sufficient to entitle the party to call for a particular letter. Morris v. Hauser, 2 M. & Rob. 392. [And as a general- rule the notice is not a reasonable one, unless given before the trial is commenced. Choteau v. Kaitt, 20 Ohio, 132.] liSupm, §§447,463, 464. a 2 Tidd's Pr. 804; Calvert v. Flower, 7 C. & P. 386. [So in Maine. Blake v. Russ, 33 Maine, 360.] 3 1 Paine & Duer's Pr. 484 ; Withers v. Gillespy, 7 S. & R. 14. The English rule was adopted in Jordan v. Wilkins, 2 Wash. C. C. R. 482, 484, n. ; Randel v. Chesapeake & Del. Can. Co. 1 Harringt. R 233, 284 ; Pe- nobscot Boom Corp. v. Lamson, 4 Shepl. 224; Anderson v. Root, 8.Sm. & M. 362 ; Commonwealth v. Davidson, 1 Cush. 33. [A party who produces a paper at the trial on the call of the adverse party, is not entitled to read such paper in evidence for himself, after the party calling for it has inspected it, and declined to read it, unless it appear to be the identical instrument called for. Reed v. Anderson, S. J. C. Mass. Middlesex, Oct. T. 1853. Law Kep. July, 1858, p. 169.] CHAP. VI.] PRIVATE WRITINQS. 743 § 564. If, on the production of the instrument, it appears to have been altered, it is incumbent on the party offering it in evidence, to explain this appparanc^.^ Every alteration on 1 The Koman Civil Law on the subject of alterations, agrees in the main with the Common Law ; but the latter, in this as in other cases, has greatly thg advantage, in its facility of adaptation to the actual state of the facts. The general rule is the same, in both codes. Rasti scriptura falsa prsesumi- tur, et tanquam falsa rejicitur ; praesertim quando rasura facta est per eum, qui utitur instrumento raso. Mascard. Vol. 4 ; Concl. 1261, n. 1, 3. But if immaterial, or free from suspicion, an alteration or rasure does not vitiate. Si rasura non sit in loco substantial!, et suspecto, non reddit falsum instru- mentum. Id. n. 9. If it appeared, on its face, to be the autography of the notary who drew the instrument, that is, a contemporaneous act, it was by some deemed valid ; quamvis scriptura sit abrasa in parte substantiali, sed ita bene rescripta, ut aperte dignoscatur, id manu ejusdem Notarii fuisse. Id. n. 14. But others contended, that this was not sufficient to remove all suspicion, and render the instrument valid, unless the alteration was men- tioned and explained at the end of the instrutfient. Si Notarius erravit in scriptura, ita ut oporteat aliquid radere et reponere, vel facere aliquam lin- eam in margine, debet, ad evitandam suspicionem, in fine scripturae ac chirograplii continuando facere mentionem, qualiter ipse abrasit tale verbum, in tali line^, vel facit talem lineam in margine. Id. n. 16. But, in the ab- I sence of all evidenoe to the contrary, it seetiis that alterations were presumed j to be contemporaneous with the execution of the instrument. In dubio ' autem hujusmodi abrasiones sen cancellationes prsesumuntur semper factse tempore conceptionis scripturse, an tequam absoluta fuerit. Id. n. 18. If the suspicion, arising from the alteration when considered by itself, were removed, by taking it in connection with the c'ontext, it was sufficient ; — cum verba anteoedentia et sequentia demonstrant necessario ita esse legendum, ut in rasura scripturse reperitur. Id. ii. 19. The instrument might also beheld good at the discretion of the Judge, if the original reading were still appar- ent — si sensus rectus percipi potest — notwithstanding the rasure; Id. n. 20 ; or if the part erased could be ascertained by other instruments ; — si per alias scripturas pars abrasa declarari possit. Id. ii. 21. If the instrument were produced in Court by the adverse party, upon legal compulsion, no alterations apparent upon it were permitted to operate to the prejudice of the instrument, against the party calling for its production. Si scriptura, ac instrumentum reperiatur penes adversarium, et Judex eum cogit tale instru- mentum exhibere in judicio ; quamvis enim eo casu scriptura sit abrasa in parte substantiali ; tamen non vitiata, nee falsa redditur contra me, et in mei prsejudicium ; imo, ei prsestatur fides in omnibus, in quibus ex ilia potest sumi sensus ; praesumitur enim adversarium dolose abrasisse. Abrasio, sive cancellatio, prsesumitur facta ab eo penes quern repetitur instrumentem. Id. 744 LAW OP EVIDENCE. [PART III. the face of a written instrument detracts from its credit, and renders it suspicious ; and this suspicion the party, claiming under it, is\)rdiriarily held bound to remove.^ If the altera- tion is noted in the attestation clause, as having been made before the execution of the instrument, it is sufficiently ac- counted for, and the instrument is relieved from that suspi- cion. And if it appears in the same handwriting and ink with the body of the instrument, it may suffice. So, if the alteration is against the interest of the party deriving title under the instrument, as, if it be a bond or note, altered to a less sum, the law does not so far presume that it was improp- erly made, as to throw on him the burden of accounting for it.^ And, generally speaking, if nothing appears to the con- trary,- the alteration will be presumed to be contemporaneous with the execution of the instrument.^ But if any ground n. 22, 23. And if a written contract or act were executed in duplicate, an alteration of one of the originals was held not to operate to the injury of the other. Si de eadem re, et eodein contractu, fuerint confectse duae scripturae, sive instrumenta, abrasio in uno harum scripturarum, etiam substantiali loco est alterum non vitiat. Id. n. 24. 1 Perk. Conv. 55; Henman v. Dickinson, 5 Bing.. 183, 184; Knight v. Clements, 8 Ad. & El. 215 ; Newcombe v. Presbrey, 8 Met. 406. But where,' a farm was devised from year to year by parol, and afterwards an agree- ment was signed, containing stipulations as to the mode of tillage, for breach of which an action was brought, and, on producing the agreement, it ap- peared that the term of years had been written seven, but altered to four- teen ; it was held that this alteration, heing immaterial to the parol contract, need not be explained by the plaintiff. Earl of FalmOuth v. Roberts, 9 M. & W. 469. See further, Cariss v. Tattershall, 2 Man. & Gr. 890 ; Clifford V. Parker, Id. 909. 2 Bailey v. Taylor, 11 Conn. R. 531 ; Coulson v. Walton, 9 Pet. 789. 3 Trowell V. Castle, 1 Keb. 22 ; Fitzgerald i). Fauconberg, Fitzg. 207, 213; Bailey v. Taylor, 11 Conn. E. 531, 534 ; Gooch v. Bryant, 1 Shepl. 386, 390; Crabtree v. Clark, 7 Shepl. 337; Vanhorne v. Dorrance, 2 Dall. 306. And see PuUen v. Hutchinson, 12 Sbepl. 249, 254; Wickbff's Appeal, 3- Am. Law Jour. 493, 503, N. S. In Morris v. Vanderen, 1 Dall. 67, and Prevost 0. Gratz, 1 Pet. C. C. R. 364, 869, it was held, that an alteration should be presumed to have been made after the execution of the instrument; but this has been overruled in the United States, as contrary to the principle of the law, which never presumes wrong. The reporter's marginal notes in Burgoyne v. Showier, 1 Rob. Eccl. R. 5, and Cooper v. Brookett, 4 Moore, CHAP. VI.] PRIVATE WRITINGS. 745 of suspicion is apparent upon the face of the instrument, the law presumes nothing, but leaves the question of the time when it was done as well as that of the person by whom, and the intent with which the alteration was made, as matters of fact, to be ultimately found by the Jury, upon proofs to be adduced by the party offering the instrument in evidence.^ P. C. C. 419, state the broad proposition, that alterations in a will, not ac- counted for, are ^n'ma_/acie presumed to have been made after its execu- tion. But, on examination of these cases, they are found to turn entirely on the provisions of the Statute of Wills, 1 Vict. e. 26, § 21, which directs that all alterations, made before the execution of the will, be noted in a memo- randum upon the will, and attested by the testator and witnesses. If this direction is not complied with, it may well be presumed that the alterations were subsequently made. And so it was held, upon the language of that statute, and of the statute of frauds respecting wills, in Doe v. Palmer, 15 Jur. 836, 839 ; in which the case of Cooper v. Brockett was cited by Lord Campbell, and approved, upon the ground of the statute. The application of this rule to deeds, was denied in Doe «,. Catamore, 15 Jur. 728 ; 5 Eng. Law & Eq. Eep. 349, [and cases cited in note] ; where it was held, that if the contrary be not proved, the interlineation in a deed is to be presumed to have been made at the time of its execution. And see Co. Lit. 225 b, and note by Butler ; Best on Presumptions, § 7^. In the case of alterations in a will, it was held, in Doe v. Palmer, supra, that the declarations of the testator were admissible, to rebut the pre- sumption of fraud in the alterations. [In the absence of evidence or cir- cumstances from which an inference can be drawn as to the time when it was made, every alteration of an instrument will be presumed to have been made after its execution. Burnham v. Ayre, 20 Law Rep. (10 N. S.) 339.] 1 The cases on this subject are not in perfect harmony ; but they are un- derstood fully to support the doctrine in the text. They all agree, that where any suspicion is raised as to the genuineness of an altered instrument, i whether it be apparent upon inspection, or made so by extraneous evidence, the party producing the instrument, and claiming under it, is bound to re- move the suspicion by accounting for the alteration. It is also generally! agreed, that inasmuch as fraud is never to be presumed, therefore, if no par- 5 ticular circumstances of suspicion attach to an altered instrument, the alter- ation is to be presumed innocent, or made prior to its execution. Gooch v. Bryant, 1 Shepl. 386; Crabtree v. Clark, 7 Shepl."337; Wickes v. Caulk, j 5 H. & J. 41 ; Grillet v. Sweat, 1 Gilm. 475 ; Doe v. Catamore, 15 Jur. 728 ; I 5 Eng. Law & Eq. E. 349, [and cases cited in note] ; Co. Lit. 225 b, note j by Butler; [Boothby v. Stanley, 34 Maine, 115 ;. North River Meadow Co. J VOL. I. 63 746 LAW OF EVIDENCE. [PAET III. § 565. Though the effect of the alteration of a legal in- strument is generally discussed with reference to deeds, yet V. Shrewsbury Church, 2 N. J. 424. In an action to foreclose a mortgage the burden of proof is on the plaintiff to show that the interlineations, alter- ations, and erasures therein, were made before, or at the time of its execu- tion, and there is no presumption that they were so made, or that they were made without fraud. Ely v. Ely, 19 Law Rep. (9 N. S.) 697. See also Wilde V. Armsby, 6 Cush. 314 ; Acker v. Ledyard, 8 Barb. 514 ; Jordan v. Stewart, 23 Penn. State E. 244 ; Huntington v. Finch, 3 Ohio, (N. S.) 445.] In Jackson v. Osborn, 2 Wend. 555, it was held, that the party claiming under a deed, was bound to account for the alterations in it, and t}iat no pre- sumption was to be made in its favor; but in Bailey v. Taylor, 11 Conn. 531, it was held, that nothing was to be presumed, either way, but the question was to be submitted freely to the Jury. But an exception to this rule of the presumption of innocence seems to be admitted in the case of negotiable paper ; it having been held, that the party producing and claiming under the paper, is bound to explain every apparent and material alteration,, the operation of which would be in Jiis own favor. Knight V. Clements, 8 Ad. & El. 215 ; Clifford v. Parker, 2 M. & G. 9^9; jSimpson v. Stackhouse, 9 Barr, 186 ; McMicken v. Beauchamp, 2 Miller, [Louis. R. 290. See also Henman v. Dickinson, 5 Bing. 183 ; Bishop v. IChambre, 3 C. & P. 55 ; Humphreys v. Guillow, 13 JJ, Ha mp. 385 ; Hills v. liarnes, 11 N. Hamp. 395 ; Taylor v. Mosely, 6 C & P. 273 ; Whitfield v. fCollingwood, 1 Car. & Kir. 325 ; Davis v. Carlisle, 6 Ala. 707 ; Walters v. jShort, 5 Gilm. 252 ; Cariss v. Tattershall, 2 M. & G. 890. But in Davis v. f.Jenney, 1 Met. 221, it yvas held that the burden of proof was on the defend- aiit. [Clark v. Eckstein, 22 Penn. State R. 507 ; Paine v. Edsell, 19 lb. 178. See also Aga^yam Bank v. Sears, 4^ Gray, 95, 97.] Another exception has been allowed, where the instrument is, by the rules of practice, to be received as genuine, unless its genuineness is denied on oath by the party, and he does so ; for his oath is deemed sufficient to de- stroy the presumption of innocence in regard to the alteration, and to place the instrument in the condition of a suspected paper. Walters v. Short, 5 Gilm. 252. It is also clear, that it is for the Court to determine, in the first instance, whether the alteration is so far accounted for, as to permit the instrument ^ito be read in evidence to the Jury, who are the ultimate judges of the fact. {Tillou V. The Clinton, &c., Ins. Co. 7 Barb. 564; Ross v. Gould, 5 Greenl. 204. [But see Clark v. Eckstein, 22 Penn. State R. 507.] But whether, 'in the absence of all other evidence, the Jury may determine the time and •character of the alteration from inspection alone, is not universally agreed. ilu some cases, they have been permitted to do so. Bailey v. Taylor, 11 |Conn. 531 ; Gooch v. Bryant, 1 Shepl. 386 ; Crabtree v. Clark, 7 Shepl. ■337 ; Doe v. Catamore, 15 Jur. 728, 5 Eng. Law & Eq. E. 349 ; Vanhorne CHAP. VI.] PRIVATE WEITINQS. 747 the principle is applicable to all other instruments. The early decisions were chiefly upon deeds, because almxjst all written engagements were anciently in that form ; but they establish the general proposition, that written instruments, which are altered, in the legal sense of that term, as hereafter explained, are thereby made void?- The grounds of this doctrine are twofold. The first is that of public policy, to prevent fraud, by not permitting a man to take the chance of committing a fraud without running any risk of losing by the event, when it is detected.^ The other is, to insure the identity of the V. Dorrance, 2 Dall. 306; [Printup v. Mitchell, 17 Geo. 558.] And see Wiokes V. Caulk, 5 H. & J. 41 ; PuUen v. Shaw, 3 Dev. 238 ; in which last case it was held, that where the alteration was apparently against the inter- est of the holder of the instrument, it should be presumed to have been made prior to its execution. But in some other cases, the Courts have re- quired the exhibition of some a jp^inic uj^ proof, being of opinion that the Jury ought not to be left to conjecture alone, upon mere inspection of the instrument. See Knight v. Clements, Clitlbrd v. Parker, and Cariss v. Tat- I tershall, supra. Other cases, in accordance 'with the rules above stated, are the following : Cumberland Bank v. Hall, 1 Halst. 215 ; Sayre v. Reynolds, 2 South. 737 ; Mathews v. Coalter, 9 Mis. 705 ; Herriek v. Malin, 22 Wend. 388 ; Barrings ton V. Bank of Washington, 14 S. & K. 405 ; Horry District v. Hanion, 1 N. & McC. 554 ; Haff'elfinger v. Shutz, 16 S. & R. 44 ; Beaman v. Russell, 20 Verm. 205. In this last case, the subject of alterations is very fully consid- ered, and the authorities classed and examined in the able judgment deliv- ered by Hall, J. Where an alteration is apparent, it has been held, that ' the party impeaching the instrument may prove collateral facts of a general \ character, such as alterations in other notes, which formed the consideration for the note in question, tending to show that the alteration in it was fraud- ulent. Rankin v. Blackwell, 2 Johns. Cas. 198. 1 Masters v. Miller, 4 T. R. 329, 330 ; Newell v. Mayberry, 3 Leigh, R. 250. [A probate bond executed by a principal and two sureties, was altered by the Judge of Probate, with the consent of the principal, but without the knowledge of the sureties, by increasing the penal sum, and was then exe- cuted by two additional sureties who did not knpw of the alteration, and was approved by the Judge of Probate, and it was held that the bond, though binding on the principal, was void as to all the sureties. Howe v. Peabody, 2 Gray, 556. See Taylor v. Johnson, 1 7 Geo. 521 ; Phillips w. Wells, 2 Sneed, 154 ; Ledford v. Vandyke, Busbee, Law, 480 ; Burchfield v. Moore, 25 Eng. Law & Eq. 123.] 2 Masters v. Miller, 4 T. R. 329, per Ld. Kenyon. 748 LAW OF EVIDENCE. [PAKT III. instrument, and prevent the substitution of another, without the privity of the party concerned.^ The instrument derives its legal virtue from its being the sole repository of the agreement of the parties, solemnly adopted as such, and attested by the signature of the party engaging to perform it. Any alteration, therefore, which causes it to speak a lan- guage different in legal effect from that which it originally spake, is a material alteration. § 666. A distinction, however, is to be observed, between the alteration and the spoliation of an instrument, as to the legal consequences. An alteration is an act done upon the instrument, by which its meaning or language is changed. If what is written upon or erased from the instrument has ho tendency to produce this result, or to mislead any person, it is not an alteration. The term is, at this day, usually applied to the act of the party entitled under the deed or instrument, and imports some fraud or improper design on his part, to change its effect. But the act of a stranger, without the participation of the party interested, is a mere spoliation, or mutilation of the instrument, not changing its legal operation, so long as the original writing remains legi- ble, and, if it be a deed, any trace remains of the seal. If, by the unlawful act of a stranger, the instrument is muti- lated or defaced, so that its identity is gone, the law regards the act, so far as the rights of the parties to the instrument are concerned, merely as an accidental destruction of pri- mary evidence, compelling a resort to that which is second- ary ; and, in such ease, the mutilated portion may be ad- mitted as secondary evidence of so much of the original instrument. Thus, if it be a deed, and the party would plead it, it cannot be pleaded with a profert, but the want 1 Sanderson v. Symonds, 1 B. & B. 430, per Dallas, C. J. It is on this ground that the alteration of a deed, in an immaterial part, is sometimes fatal, where its identity is put in issue by the pleadings, every part of the writing being then material to the identity. See supra, §§ 58, 69 ; Hunt v. Adams, 6 Mass. 521. CHAP. VI;] PRIVATE WRITINGS. 749 of profert must be excused by an allegation that the deed, meaning its legal identity as a deed, has been acciden- tally, and without the fault of the party, destroyed.^ And whether it be a deed or other instrument, its original tenor must be substantially shown, and the alteration or mutila- tion accounted for, in the same manner as if it were lost. § 567. In considering the effect of alterations made by the party himself, who holds the instrument, a further distinction is to be observed between the insertion of those words which the law would supply, and those of a different character. If the law would have supplied the words which were omitted, and were afterwards inserted by the party, it has been re- peatedly held, that even his own insertion of them will not vitiate the instrument ; for the assent of the obligor will, in such cases, be presumed. It is not an alteration, in the sense of the law, avoiding the instrument ; although, if it be a 1 Powers V. Ware, 2 Pick. 451 ; Read v. Brookman, 3 T. R. 152 ; Mdrrill V. Otis, 12 N. Hamp. R. 466. The necessity of some fraudulent intent, car- ried home to the party claiming under the instrument, in order to render the alteration fatal, was strongly insisted on by Buller, J., in Masters v. Miller, 4 T. R. 334, 335. And, on this ground, at least tacitly assumed, the old cases, to the effect that an alteration of a deed by a stranger, in a ma- terial part, avoids the deed, have been overruled. In the following cases, the alteration of a writing, without fraudulent intent, has been treated as a merely accidental spoliation. Henfree v. Bromley, 6 East, 309 ; Cutts, in error, v. United States, 1 Gall. 69 ; United States v. Spalding, 2 Mason, 478 ; Rees v. Overbaugh, 6 Cowen, 746 ; Lewis v. Payn, 8 Cowen, 71 ; Jackson v. Malin, 15 Johns. 297, per Piatt, J. ; Nichols v. Johnson, 10 Conn. 192 ; Marshall v. Gougler, 10 S. & R. 164 ; Palm. 403 ; Wilkinson v. John- son, 3 B. & C. 428 ; Raper v. Birkbeck, 15 East, 17 ; [Boyd v. McConuell, 10 Humph. 68 ; Lee v. Alexander, 9 B. Mon. 25.] The old doctrine, that every material alteration of a deed, even by a stranger, and without privity of either party, avoided the deed, was strongly condemned by Story, J., in United States v. Spalding, supra, as repugnant to common sense and justice, as inflicting on an innocent party all the losses occasioned by mistake, by accident, by the wrongful acts of third persons, or by the providence of Heaven ; and which ought to have the support of unbroken authority before a Court of Law was bound to surrender its judgment to what deserved no better name than a technical quibble. [Goodlellow v. Inslee, 1 Beasley, 355.] 63* 750 LAW OF EVIDENCE. [PAKT III. deed, and to be set forth in hcec verba, it should be recited as it was originally written.^ § 568. It has been strongly doubted, whether an immater rial alteration in any matter, though made by the obligee himself, will avoid the instrument, provided it be done inno- cently, and to no injurious purpose.^ But if the alteration be fraudulently made, by the party claiming under the instru- ment, it does not seem important whether it be in a material or an immaterial part ; for, in either case, he has brought himself under the operation of the rule established for the prevention of fraud; and, having fraudulently destroyed the identity of the instrument, he must take the peril of all the consequences.^ But here, also, a further distinction is to be observed, between deeds of conveyance and covenants ; and also between covenants or agreements executed, and those 1 Hunt V. Adams, 6 Mass. 519, 522; Waugh v. Bussell, 5 Taunt. 707; Paget V. Paget, 3 Chan. Kep. 410; Zouch v. Clay, 1 Ventr. 185 ; Smith v. Crooker, 5 Mass. 538 ; Hale v. Euss, 1 Greenl. 334 ; Enapp v. Maltby, 18 Wend. 587 ; Brown v. Pinkham, 18 Pick. 172. 2 Hatch V. Hatch, 9 Mass. 311, per Sewall, J.; Smith v. Dunbar, 8 Pick. 246 ; [Reed o. Kemp, 16 111. 445. A promissory note was made payable to a partnership under one name, and was so indorsed by a surety. It was afterwards altered by the payee and maker, without the knowledge of the surety, so as to be payable to the same partnei'ship by a different name. In an action on the note by the payee against the surety, it was held that the alteration was immaterial, and that it did not affect the validity of the note. Arnold v. Jones, 2 R. I. 345. The making a note payable at a particular place, is a material alteration. Burchfield v. Moore, 25 Eng. Law & Eq. li. 123. See also Warrington v. Early, 22 lb. 208.] 3 If an obligee procure a person, who was not present at the execution of the bond, to sign his name as an attesting witness, this is primd. facie evi- dence of fraud, and voids the bond. Adams v. Prye, 3 Met. 103. But it is competent for the obligee to rebut the inference of fraud, by proof that the act was done without any fraudulent- purpose ; in which ease the bond will not be thereby rendered void. Ibid. And see Homer v. Wallis, 1 1 Mass. 309 ; Smith v. Dunham, 8 Pick. 246. But this latter point was decided otherwise in Marshall v. Gougler, 10 S. & R. 164. And where the holder of a bond or a note under seal procured a person to alter the date, for the pur- pose of correcting a mistake in the year and making it conform to the truth, this was held to avoid the bond. Miller v. Gilleland, S. C. Pa. 1 ; 1 Am. Law Reg. 672. Lowrie and Woodward, Js. dissenting. CHAP. VI-l PRIVATE WRITINGS. 751 which are still executory. For if the grantee of land alter or destroy his title-deed, yet his title to the land is not gone. It passed to him by the deed ; the deed has performed its office, as an instrument of conveyance ; and its continued existence is not necessary to the continuance of title in the grantee ; but the estate remains in him, until it has passed to another by some mode of conveyance recognized by the law.-' The same principle applies to contracts executed, in regard to the acts done under them. If the estate lies in grant, and cannot exist without deed, it is said that any alteration, by the party claiming the estate, will avoid the deed as to him, and that therefore the estate itself, as well as all remedy upon the deed, will be utterly gone.^ But whether it be a deed conveying real estate or not, it seems well settled that any alteration in the* instrument, made by the grantee or obligee, if it be made with a fraudulent design, and do not consist in the insertion of words which the law would supply, is fatal to the instrument, as the foundation of any remedy at law, upon the covenants or undertakings contained in it.^ And, in such case, it seems that the party 1 Hatch V. Hatch, 9 Mass. 307 ; Dr. Leyfield's case, 10 Co. 88 ; Bolton v. Carlisle, 2 H. Bl. 359 ; Davis-u. Spooner, 3 Pick. 284 ; Barrett v. Thorndike, 1 Greenl. 73 ; .Lewis v. Payn, 8 Cowen, 71 ; Jackson v. Gould, 7 Wend. 364 ; Beckrow's case, Hetl. 138; [Tibeau v. Tibeau, 19 Mis. 78.] Whether the deed may still be read by the party, as evidence of title, is not agreed. That it may be read, see Doe v. Hirst, 3 Stark. K. 60 ; Lewis v. Payn, 8 Cowen, 17; Jackson c. Gould, 7 Wend. 364. That it may not, see Babb v. Clem- son, 10 S. & R. 419; Withers v. Atkinson, 1 Watts, 236 ; Chesley v. Frost, 1 N. Hamp. 145 ; Newell v. Mayberry, 3 Leigh, R. 250 ; Bliss v. Mclntyre, 18 Verm. 466. [An alteration in a material part of a bond given by a trus- tee to show the interest of a cestui que trust, made without the knowledge of the trustee, by a party beneficially interested therein, will destroy the bond, but will not operate to destroy an estate which existed before, and indepen- dently of, the bond. Williams v. Van Tuyl, 2 Ohio, N. S. 336.] 2 Moore v. Salter, 3 Bulstr. 79, per Coke, C. J. ; Lewis v. Payn, 8 Cowen, 71 ; Supra, § 265. 3 Ibid; Davidson v. Cooper, 11 M. & W. 778 ; Jackson v. Gould, 7 Wend. 364 ; Hatch v. Hatch, 9 Mass. 307 ; Barrett v. Thorndike, 1 Greenl. 73 ; Withers v. Atkinson, 1 Watts, 236 ; Arrison v. Harmstead, 2 Barr, 191 ; Whitmer v. Frye, 10 Missouri R. 348 ; MoUett v. Wackerbarth, 5 M. Gr. & Sc. 181 ; Agriculturist Co. v. Fitzgerald, 15 Jur. 489 ; 4 Eng. L. & Eq. R. 211. 752 LAW OF EVIDENCE. [PART III. will not be permitted to prove the covenant or. promise, by- other evidence.! But where there are several parties to an indenture, some of whom have executed it, and in the prog- ress of the transaction it is altered as to those who have not signed it, without the knowledge of those who have, but yet in a part not at all affecting the latter, and then is executed by the residue, it is good as to all.^ § 568 a. In aU these cases of alterations, it is further to be remarked, that they are supposed to have been m^de without the consent of the other party. For, if the alteration is made by consent of parties, such as by filling up of blanks, or the like, it is valid.^ But here, also, a distinction has been taken between the insertion of matter, essential to the exist- ence and operation bf the instrument as a deed, and that which is not essential to its operation. Accordingly it has been held that an instrument, which, when formally executed, was deficient in some material part, so as to be incapable of any operation at all, and was no deed, could not afterwards become a deed, by being completed and delivered by a stran- ger, in the absence of the party who executed it, and unau- - Martindale v. FoUett, 1 N. Hamp. 95 ; Newell v. Mayberry, 3 Leigh, R. 250; Blade v. Nolan, 12 Wend. 173; Arrison v. Harmstead, 2 Barr, 191. The strictness of the English rule, that every alteration of a bill of exchange, or promissory note, even by consent of the parties, renders it utterly void, has particular reference to the stamp act of 1 Ann. stat. 2, c. 22. Chitty on Bills, p. 207-214. 2 Doe V. Bingham, 4 B. & Aid. 672, 676, per Bayley, J.; Hibblewhite v. McMorine, 6 M. & W. 208, 209. 3 Markham v. Gonaston, Cro. El. 626 ; Moor, 547 ; Zouch v. Clay, 1 Ventr. 185 ; 2 Lev. 35. So, where a power of attorney was sent to B., with his christian name in blank, which he filled by inserting it, this was held valid. Eagleton u. Gutteridge, 11 M. & W. 468. This consent may be implied. Hale v. Buss, 1 Greenl. 34 ; Smith v. Grooker, 6 Mass. 538 ; 19 Johns. 396, per Kent, C. ; [Plank-Road Co. v. Wetsel, 21 Barb. 56 ; Rat- cliff V. Planters' Bank, 2 Sneed, 425 ; Shelton v. Deering, 10 B. Men. 405. Where the date of a note under seal was altered from 1836 to 1838, at the request of the payee, and in the presence of the surety, but without his assent, the note was avoided as to the surety. Miller v. Gilleland, 19 Penn. State R. 119.]: CHAP. VI.] PRIVATE WRITINGS. 76S tborized by an instrument under seal.^ Yet this rule, again, has its exceptions, in divers cases, such as powers of attorney to transfer stock,^ navy bills,^ custom-house bonds,* appeal bonds,^ bail bonds,^ and the like, which have been held good, ' though executed in blank, and afterwards filled up by parol authority only.'^ 1 Hibblewhite v. McMorine, 6 M. & W. 200, 216. 2 Commercial Bank of Buffalo v. Kortwright, 22 Wend. 348. 3 Per Wilson, J., in Masters v. Miller, 1 Anstr. 229. 4 22 Wend. 366. 5 Ex parte Decker, 6 Cowen, 59 ; Ex parte Kerwin, 8 Cowen, 118. 6 Hale V. Russ, 1 Greenl. 334 ; Gordon v. Jeffreys, 2 Leigh, E. 410 ; Van- hook V. Barrett, 4 Dev. Law R. 272. But see Harrison v. Tiernans, 1 Ran- dolph, R. 177 ; Gilbert v. Anthony, 1 Yerger, 69. 7 In Texira v. Evans, cited 1 Anstr. 228, where one executed a bond in blank, and sent it into the money-market to raise a loan upon, and it was negotiated, and filled up by parol authority only. Lord Mansfield held it a good bond. This decision was questioned by Mr. Preston in his edition of Shep. Touchst. p. 68, and it was expressly overruled in Hibblewhite v. Mc- Morine, 6 M. & W. 215. It is also contradicted by McKee v. Hicks, 2 Dev. Law R. 379, and some other American oases. But it was confirmed in Wiley V. Moor, 17 S. & R. 438 ; Knapp v. Maltby, 13 Wend. 587 ; Com- mercial Bank of Buffalo i'. Kortwright, 22 Wend. 348 ; Boardman v. Gore, 1 Stewart, Alab. R. 517 ; Duncan v. Hodges, 4 McCord. 239 ; and in sev- eral other cases the same doctrine has been recognized. In the United States V. Nelson, 2 Biockenbrough, R. 64, 74, 75, which was the case of a paymas- ter's bond, executed in blank and afterwards filled up. Chief Justice Marshall, before whom it was tried, felt bound by the weight of authority, to decide against the bond ; but expressed his opinion, that in principle it was valid, and his belief that his judgment would be reversed in the Supreme Court of the United States ; but the cause was not carried farther. Instru- ments executed in this manner have become very common, and the authori- ties as to their validity, are distressingly in conflict. But upon the principle adopted in Hudson v. Revett, 5 Bing. 368, there is very little difficulty in holding such instruments valid, and thus giving full effect to the actual intentions of the parties, without the violation of any rule of law. In that case, the defendant executed and delivered a deed, conveying his property to trustees, to sell for the benefit of his creditors, the particulars of whose demands were stated in the deed ; but a blank was left for one of the princi- pal debts, the exact amount of which was subsequently ascertained and in- serted in the deed, in the grantor's presence, and with his assent, by the attorney who had prepared the deed and had it in his possession, he being one of the trustees. The defendant afterwards recognized the deed as valid. 754 LAW OF EVIDENCE. [PAET III. § 569. The instrument, being thus produced and freed from suspicion, must be proved by the subscribing witnesses, in Tai'ious transactions. It was held that the deed was not intended to be a complete and perfect deed, until all ' the blanks were filled, and that the act of the grantor, in assenting to the filling of the blank, amounted to a delivery of , the deed, thus completed. No formality, either of words or action, is prescribed by the law as essential to delivery. Nor is it material how or when the deed came into the hands of the grantee. Delivery, in the legal sense, consists in the transfer of the possession and dominion ; and whenever the grantor assents to the possession of the deed by the grantee, as an instru- ment of title, then, and not until then, the delivery is complete. The pos- session of the instrument by the grantee may be simultaneous with this act of the grantor's mind, or it may have been long before ; but it is this assent of the grantor which changes the character of that prior possession, and im- ■ parts validity to the deed. Mr. Preston observes, that " all cases of this sort depend on the inquiry, whether the intended grantor has given sanction to the instrument, so as to make it conclusively his deed." 3 Preston on Ab- stracts, p. 64. And see Parker v. Hill, 8 Met. 447; Hope v. Harman, 11 Jur. 1097; Post, Vol. 2, § 297. The same efftict was given to clear and unequivocal acts of assent en pais, by a feme mortgagor, after the death of her husband, as amounting to a redelivery of a deed of mortgage, executed by her while a feme covert. Goodright v. Straphan, Cowp. 201,204; Shep. Touchst. by Preston, p. 58. " The general rule," said Mr. Justice Johnson, in delivering the judgment of the Court, in Duncan v. Hodges, " is, that if a blank be signed, sealed, and delivered, and afterwards written, it is no deed ; and the obvious reason is, that as there was nothing of substance contained in it, nothing could pass by it. But the rule was never intended to prescribe to Jhe grantor the order of time, in which the' several parts of a deed should be written. A thing to be granted, a person to whom, and the sealing and delivery, are some of those which are necessary, and the whole is consum- mated by the delivery ; and if the grantor should think proper to reverse this order, in the manner of execution, but in the end makes it perfect before delivery, it is a good deed. See 4 McCord, R. 239, 240. Whenever, therefore, a deed is materially altered, by consent of the parties, after its formal execution, the grantor or obligor assents that the grantee or obligee shall retain it in its altered and completed form, as an instrument of title ; and this assent amounts to a delivery or redelivery, as the case may require, and warrants the Jury in finding accordingly. Such plainly was the opinion of the learned Judges in Hudson v. Revett, as stated by Best, C. J., in 5 Bing. 388, 389 ; and further expounded in West v. Steward, 14 M. & W. 47. See also Hartley v. Manson, 4 M. & G. 172 ; Story on Bailments, § 55. [Filling in the date of a warrant of attorney after execution is not such an alteration as will avoid the instrument. Keane v. Smallbone, 33 Eng. Law &. Eq. 198.] CHAP. VI.] PRIVATE WRITINGS. 765 if there be any, or at least by one of them.^ Various reasons have been assigned for this rule ; but that upon which it seems best founded is, that a fact may be known to the subscrib- 1 A written instrument, not attested by a subscribing witness, is sufficiently- proved to authorize its introduction, by competent proof that the signature of the person, whose name is undersigned, is genuine. The party producing it is not required to proceed further upon a mere suggestion of a false date when there are no indications of falsity found upon the paper, and prove, that it was actually made on the day of the date. After proof that the sig- nature is genuine, the law presumes that the instrument in all its parts is genuine also, when there are no indications to be found upon it to rebut such a presumption. See PuUen v. Hutchinson, 12 Shepl. 254, per Sliep- ley, J. , In regard to instruments duly attested, the rule in the text is applied where the instrument is the foundation of the party's claim, or he is privy to it, or where it purports to be executed by his adversary; but not where it is wholly inter alios, under whom neither party can claim or deduce any right, title, or interest to himself. Ayres u. Hewett, 1 Applet. 286, per Whitman, C. J. In Missouri, two witnesses are required to prove the signature of a de- ceased subscribing witness to a deed. Rev. Stat. 1845, ch. 32, § 22. See supra, § 260, note. In Virginia, every written instrument is presumed to be genuine, if the party purporting to have signed it be living, unless he will deny the signa- ture, on oath. Eev. Stat. 1849, ch. 98, § 85. So, in Illinois. Linn v. Buckingham, 1 Scam. 451. And see Missouri, Kev. Stat. 1835, p. 463, § 18, 19. Texas, Hartley's Dig. § 741. Delaware, Kev. Stat. 1852, ch. 106, § 5. In South Carolina, the signature to a bond or note may be proved by any other person, without calling the subscribing witness ; unless the defendant will swear that it is not his signature, or that of his testator or intestate, if the case be such. Stat, at Large, Vol. 5, p. 434. And foreign deeds, bonds, &c., attested to have been proved on oath before a notary or other magis- trate qualified therefor, are admissible in evidence without proof by the sub- scribing witnesses ; provided the Courts of the foreign State receive similar evidence from this State. Id. Vol. 3, p. 285 ; Vol. 5, p. 45. In Virginia, foreign deeds or powers of attorney, &c. duly acknowledged, so as to be admitted to record by the laws of that State ; also, policies, charter-parties, and copies of record or of registers of marriages and births, attested by a notary, to be made, entered, or kept according to the law of the place, are admissible in evidence in the Courts of that State, without further proof. Rev. Stat. 1849, ch. 121, § 3 ; Id. ch. 176, § 16. A similar rule, in substance, is enacted in Mississippi. Hutchinson's Dig. ch. 60, art. 2. And see infra, § 573, note. [And where the instrument which the plain- tiff offered as part of his case, was a lease not under seal, executed on the part of the lessor by an attorney, in the presence of an attesting witness, it 756 LAW OF EVIDENCE. [PART III. ing witness, not within the knowledge or recolleption of the obligor; and that he is entitled to avail himself of all the knowledge of the subscribing witness, relative to the trans- action.^ The party, to whose execution he is a witness, is considered as invoking him, as the person to whom he refers, to prove what passed at the time of attestation.''* The rule, though originally framed in regard to deeds, is now extended to every species of writirkg, attested by a witness.^ Such being the principle of the rule, its application has been held indispensable, even where it was proved that the obligor had admitted that he had executed the bond ; * and though the admission were made in answer to a bill of discovery.^ was held, that the testimony of the attorney was inadmissible to prove the execution of the lease, without first calling the attesting witness, or account- ing for his absence. " The person whose signature appeared to it as attor- ney of the supposed lessor, could not affect the rights of the defendants, who objected to it, by way of admission or confession, for he never represented, or was intrusted by, the defendants for any purpose. His handwriting was secondary evidence only, and could not be proved, until the plaintiff had proved that the testimony of the attesting witness could not be obtained. The attorney, therefore, stood in the same positioit as any other person, not a subscribing witness, who might have happened to be present at the exe- cution of the instrument. The evidence was incompetent, and rightly re- jected." By Shaw, C. J. Barry v. Ryan, 4 Gray, .^23, 525. Where one witness testifies that the other witness and himself were present and saw the execution of a deed, it is not necessary to call such other witness. Meloher v. Flanders, 40 N. H. 139.] 1 Per Le Blanc, J., in Call v. Dunning, 4 East, 54 ; Manners v. Postan, 4 Esp. 240, per Ld. Alvanley, C. J. ; 3 Preston on Abstracts of Title, p. 73. 2 Cussons V. Skinner, 11 M. & W. 168, per Ld. Abinger ; HoUenbaok j;. Fleming', 6 Hill, N. Y. Rep. 303. 3 Doe V. Durnford, 2 M. & S. 62 ; which was a notice to quit. So, of a warrant to distrain. Higgs v. Dixon, 2 Stark. R. 180. A receipt. Heck- ert V. Haine, 6 Binn. 16 ; Wishart v. Downey, 15 S. & R. 77 ; Mahan v. MoGrady, 5 S. & R. 314. , * Abbott V. Plumbe, 1 Doug. 216, referred to by Lawrence, J., in 7 T. R. 267, and again in 2 East, 187, and confirmed by Lord Ellenborough, as an inexorable rule, in Rex v. Harringworth, 4 M. & S. 353. The admission of the party may be given in evidence ; but the witness must also be produced, if to be had. This rule was broken in upon, in the case of the admitted execution of a promissory note, in Hall v. Phelps, 2 Johns. 451 ; but the rule was afterwards recognized as binding in the case of a deed, in Fox v. Reil, 3 Johns. 477, and confirmed in Henry v. Bishop, 2 Wend. 575. 5 Call V. Dunning, 4 East, 43. But see Bowles v. Langworthy, 5 T. R. CHAP. VI.] PRIVATE WRITINGS. 757 § 569 a. A subscribing witness is one who was present when the instrument was executed, and who,, at that time, at the request or with the assent of the party, subscribed his name to it, as a witness of the execution. If his name is signed not by himself, but by the party, it is no attestation. Neither is it such, if, though present at the execution, he did not subscribe the instrument at that time, but did it after- wards, and without request, or by the fraudulent procure- ment of the other party. But it is not necessary that he should have actually seen the party sign, or have been pres- ent at the very moment of signing ; for if he is called in immediately afterwards, and the party acknowledges his signature to the witness, and requests him to attest it, this will be deemed part of the transaction, and therefore a suili- cient attestation.^ § 570. To this rule, requiring the production of the sub- scribing witnesses, there are several classes of exceptions. The first is, where the instrument is thirty years old; in which case, as we have heretofore seen,^ it is said to prove 366. So, in order to prove the admission of a debt, by the medium of an entry in a schedule filed by the defendant in the Insolvent Debtors' Court, it was held necessary to prove his signature by the attesting witness, although the document had been acted upon by that Court. Streeter v. Bartlett, 5 M. G. & So. 562. In Maryland, the rule in the text is abrogated by the statute of 1825, eh. 120. [The English statute rendering parties to suits competent witnesses, has not changed the rule. Whyman v. Garth, 20 Eng. Law and Eq. R. 359. And the same has been held in Massachusetts. Brigham v. Palmer, 3 Allen, 450.] 1 HoUenback v. Fleming, 6 Hill, N. Y. Rep. 303 ; Cussons v. Skinner, 11 M. & W. 168 ; Ledgard v. Thompsoi., Id. 41, per Parke, B. Si [testes] in confectione cTiarlm prcesentes non fuerint, sufficit si postmodum, in proesen- tia donatoris et donaiorii fuerit recilata ei concessa. Bracton, b. 2, c. 16, § 12, fol. 38, a; Fleta, 1. 3, c. 14, § 13, p. 200. And see Brackett v. Mount- fort, 2 Fairf. 115. See further, on signature and attestation, post, Vol. 2, tit. Wills, §§ 674,676,678. 2 Supra, § 21, and cases there cited. See also Doe v. Davis, 10 Ad. & El. 314, N. S.; Crane v. Marshall, 4 Shepl. 27; Green «. Chelsea, 24 Pick. 71. From the dictum of Parker, C. J., in Emerson v. Tolman, 4 Pick. 162, VOL. I. 64 758 LAW OF EVIDENCE. [PART III. itself, the subscribing witnesses being presumed to be dead, and other proof being presumed to be beyond the reach of the party. But such documents must be free from just grounds of suspicion, and must come from the proper cus- tody,^ or have been acted upon, so as to afford some cor- roborative proof of their genuineness.^ And, in this case, it is not necessary to call the subscribing witnesses, though they be living.^ This exception is coextensive with the rule, applying to ancient writings of every description, pro- it has been inferred that the subscribing witnesses must be produced, if liv- ing, though the deed be more than thirty years old. But the case of Jack- son V. Blanshan, 3 Johns. 292, which is there referred to, contains no such doctrine. The question in the latter case, which was the case of a will, was, whether the thirty years should be computed from the date of the will, or from the time of the testator's death, and the Court held that it should be computed from the time of his death. But on this point Spencer, J., differed from the rest of the Court; and his opinion, which seems more con- sistent with the principle of the rule, is fully sustained by Doe v. Deakin, 3 C. & P. 402 ; Doe v. WoUey, 8 B. & C. 22 ; McKenire i'. Frazer, 9 Ves. 5 ; Gough V. Gough, 4 T. R. 707, n. See Adams on Eject, p. 260. And it was accordingly so decided in Man v. Ricketts, 7 Bcavan, 93. 1 Supra, § 142. And see Slater v. Hodgson, 9 Ad. & El. 727, N. S. [An ancient book kept among the records of the town and coming therefrom, purporting to be the selectmen's book of accounts, with the treasury of the town, is admissible in evidence of the facts therein stated. Boston v. Wey- mouth, 4 Cush. 538, 542. See also Whitehouse v. Bickford, 9 Foster, 471; Adams v. Stanyan, 4 Foster, 405.3 2 See supra, §§ 21, 142, and cases there cited; Doe d. Edgett v. Stiles, 1 Kerr's Rep. (New Br.) 338. Mr. Evans thinks that the antiquity of the deed is alone sufficient to entitle it to be read ; and that the other circum- stances only go to its effect in evidence ; 2 Poth. Obi. App. xvi. sect. 5, p. 149- See also Doe v, Burdett, 4 Ad. & El. 1, 19 ; Brett v. Beales, 1 M. & Malk. 416, 418; Jackson v. Larroway, 3 Johns. Cas. 283. In some cases, proof of possession, under the deed or will, seems to have been deemed in- dispensable ; but the principle pervading them all is that of corroboration merely ; that is, that some evidence shall be offered, auxiliary to the appar- ent antiquity of the instrument, to raise a sufficient presumption in its favor. As to this point, see supra, § 144, note. 3 Marsh V. Colnett, 2 Esp. 665 ; Doe v. Burdett, 4 Ad. & El. 1, 19 ; Doe V. Deakin, 3 C. & P. 402 ; Jackson v. Christman, 4 Wend. 277, 282, 283 ; Doe V. WoUey, 8 B. & C. 22 ; Fetherley v. Waggoner, 11 Wend. 603 ; Supra, 142. CHAP. VI.] PRIVATE WRITINaS. 759 vided they have been brought from the proper custody and place ; for the finding them in such a custody and place is a presumption that they were honestly and fairly obtained, and preserved for use, and are free from suspicion of dishon- esty.^ But whether it extends to the seal of a private cor- poration, has been doubted, for such a case does not seem clearly to be within the principle of the exception.^ § 571. A second exception to this rul^ is allowed, where the instrument is produced by the adverse party, pursuant to notice, the party producing it claiming an interest under the instrument. In this case, the party producing the instrument is not permitted to call on the other for proof of its execu- tion; for, by claiming an interest under the instrument, he has admitted its execution.^ The same principle is applied where both parties claim similar interests, under the same deed ; in which case, the fact of such claim may be shown by parol.* So, where both parties claim under the same ancestor, his title-deed, being equally presumable to be in the possession of either, may be proved by a copy from the registry.^ But 1 12 Vin. Abr. tit. Evidence, A. b. 5, ,pl. 7, cited by Ld. EUenborough, in Koe V. Rawlins, 7 East, 291 ; Gov. &e. of Chelsea Waterworks v. Cowper, 1 Esp. R. 275; Forbes v. Wale, 1 W. Bl. 632; Winne v. Tyrwhitt, 4 B. & Aid. 376. 2 Rex V. Bathwick, 2 B. & Ad. 639, 648. 3 Pearoe v. Hooper, 3 Taunt. 60 ; Carr v. Burdiss, 1 C. M. & R. 784, 785 ; Qrr V. Morice, 3 Br. & Bing. 139 ; Bradshaw v. Bennett, 1 M. & Rob. 143. In assumpsit by a servant against his master, for breach of a written contract of service, the agreement being produced under notice, proof of it by the attesting witness was held unnecessary. Bell v. Chaytor, 1 Car. & Kirw. 162 ;, 5 C. & P. 48. < Doe V. Wilkins, 4 Ad. & El. 86 ; 5 Nev. & M. 434, S. C. ; Knight i>. Martin, 1, Gow, R. 26. . 5 Burghardt v. Turner,. 12 Pick. 534. It being the general practice, in the United States, for the grantor to retain his own title-deeds, instead of delivering them over to the grantee, the grantee is not held bound to pro- duce them ; but the person making title to lands, is, in general, permitted to read certified copies, from the registry, of all deeds and instruments under which he claims, and to which he is not himself a party, and of which he is not supposed to have the control. Soanlan v. Wright, 13 Pick. 623 ; Wood- 760 LAW OF EVIDENCE. [PART Iir. it seems that the interest claimed in these cases must be of an abiding nature. Therefore, where the defendant would show that he was a partner with the plaintiff, and, in proof thereof, called on the plaintiff to produce a written personal contract, made between them both, as partners of the one part, and a third person of the other part, for labor which had been' performed, which was produced accordingly, the defendant was still held bound to prove its execution.' The interest, also, which is claimed under the instrument pro- duced on notice, must, in order to dispense with this rule, be an interest claimed in the same cause. Therefore, where in an action by an agent against his principal, for his commission due for procuring him an apprentice, the indenture of ap- prenticeship was produced by the defendant on notice ; it was held that the plaintiff was still bound to prove its exe- cution by the subscribing witness ; and that, having been nonsuited for want of this evidence, he was not entitled to a new trial on the ground of surprise, though he was not previously aware that there was a subscribing witness, it not appearing that he had made any inquiry on the subject.* So, where the instrument, was taken by the party producing it, in the course of his official duty, as, for example, a bail bond, taken by the sheriff, and produced by him on notice, man v. Coolbroth, 7 Greenl. 181 ; Loomis v. Bedel, 11 N. Hamp. 74. And where a copy is, on this ground, admissible, it has been held that the original might be read in evidence, without proof of its formal execution. Knox v. Silloway, 1 Fairf. 201. This practice, however, has been restricted to instru- ments which are by law required to be registered, and to transmissions of title inter vioos; for if the party claims by descent from a grantee, it has been held that he must produce the deed to his ancestor, in the same manner as the ancestor himself would be obliged to do. Kelsey v. Hanmer, 18 Conn. R. 31 1. Where proof of title had been made by a copy from the registry of an officer's levy of an execution, and the adverse party thereupon produced the original return, in which were material alterations, it was held that this did not affect the admissibility of the copy in evidence, and that the burden of explaining and accounting for the alterations in the original did not rest on the party producing the copy. Wilburs. Wilbur, 13 Met. 405; \_Ante. § 561, and notes.] , 1 Collins V. Bayntum, 1 Ad. & El. N. S. 117. 8 Rearden v. Minter, 5 M. & Gr. 204. CHAP. VI.] PRIVATE WRITINGS. 76 L its due. execution will primd facie be presumed.^ Subject to these exceptions, the general rule is, that where the party producing an instrument on notice is not a party to it and claims no beneficial interest under it, the party calling for its production, and offering it in evidence, must prove its execution.^ § 572. A third class of exceptions to this rule arises from the circumstances of the witnesses themselves, the party, either from physical or legal obstacles, being imable to adduce them. Thus, if the witness is proved or presumed to be dead ; ® or cannot be found after diligent inquiry ; * or, is resident beyond the sea ; ^ or, is out of the jurisdiction of the Court ;^ or, is a fictitious person, whose name has been 1 Scott «. Waithman, 3 Stark. R. 168. 9 Betts ii. Badger, 12 Johns. 223 ; Jackson u; Kingsley, 17 Johns. 158. 3 Anon. 12 Mod. 607; Barnes v. Trompowsky, 7 T. R. 265; Adams u. Kerr, 1 B. & P. 360 ; Banks v. Farquharson, 1 Dick. 167 ; Mott v. Doughty, 1 Johns. Cas. 230 ; Dudley v. Sumner, 5 Mass. 463. That the witness is sick, even though despaired of, is not sufficient. Harrison v. Blades, 3 Campb. 457. See supra, § 272,.n., as to the mode of proving the attestation of a marksman. * Coghlan V. Williamson, 1 Doug. 93; Cnnliffe v. Sefton, 2 East, 183; Call V. Dunning, 5 Esp. 16; 4 East, 53 ; Crosby v. Piercy, 1 Taunt. 364 ; Jones V. Brinkley, 1 Hayw. 20 ; Anon. 12 Mod. 607; Wardell v. Fermor, 2 Campb. 282; Jackson v. Burton, 11 Johns. 64 ; Mills i;. Twist, 8 Johns. 121 ; Parker v. Haskins, 2 Taunt. 223 ; Whittemore v. Brooks, 1 Greenl. 57 ; Burt v. Walker, 4 B. & Aid. 697 ; Pytt v. Griffilh, 6 Moore, 538 ; Aus- tin V. Rumsey, 2 C. & K. 736. 5 Anon. 12 Mod. 607 ; Barnes v. Trompowsky, 7 T. R. 266. 6 Holmes v. Pontin, Peake's Cas. 99 ; Banks o. Farquharson, 1 Dick. 167 ; Cooper V. Marsden, 1 Esp. 1 ; Prince v. Blackburn, 2 East, 260 ; Sluby v. Champlin, 4 Johns. 461 ; Dudley v. Sumner, 5 Mass. 444; Homer v. Wallis, 1:1 Mass. 309 ; Cook v. Woodrow, 5 Cranch, 13 ; Baker v. Blunt, 2 Hayw. 404 ; Hodnett v. Forman, 1 Stark. R. 90 ; Glubb v. Edwards, 2 M. & Rob. 300 ; Engles v. Bruington, 4 Yeates, 345 ; Wiley v. Bean, 1 Gilman, 302 ; Dunbar v. Marden, IS K. Hamp. 311. If the witness has set out to leave the\ jim'isdictioD by sea, but the ship has been beaten back, he is still considered \ absent. Ward v. Wells, 1 Taunt. 461. See also Emery v. Twombly, 5 Shepl. 65; [Teall v. Van Wyck, 10 Barb. 376; Foote ». Cobb, 18 Ala. 585 ; Co? V. Davis, 17 lb. 714.] 64* 762 LAW OF EVIDENCE. [PART III. placed upon the deed by the party who made it ; ^ or, if the instrument is lost, and the name of the subscribing witness is unknown ; ^ or, if the witness is insane ; ^ or, has subse- quently become infamous;* or, has become the adversp .par- ty ; ® or, has been made executor or administrator to one of the parties, or has otherwise, and without the agency of the party, subsequently become interested, or otherwise incapac- itated ; ^ or, was incapacitated at the time of signing, but the fact was not known to the party ; '^ in all these cases, the execution of the instrument may be proved by other evi-' dence. If the adverse party, pending the cause, solemnly agrees to admit the execution, other proof is not necessaryi* And if the witness, being called, denies, or does not' recollect having seen it executed, it may be established by other evi- dence.^ • If the witness has become blind, it has been held 1 FEissett !'. Brown, Peake's Cas. 23. 2 Keeling v. Ball, Peake's Ev. App. 78. 3 Currie v. Child, 3 Campb. 283. See also 3 T. K. 712, per Buller, J. * Jones V. Mason, 2 Stra. 833. If the conviction were previous to the attestation, it is as if not attested at all. 1 Stark. Evid. 325. 6 Strange v. Dashwood, 1 Cooper's Ch. Cas. 497. 6 Goss V. Tracy, I P. Wms. 289 ; Godfrey v. Norris, 1 Stra. 34 ; Davison V. Bloomer, 1 Dall. 123 ; Bulkley v. Smith, 2 Esp. 697 ; Cunliffe v. Sefton, 2 East, 183; Burrett v. Taylor, 9 Ves. 381 ; Hamilton v. Marsden, 6 Binn. 45 ; Hamilton v. Williams, 1 Hayw. 139 ; Hovill v. Stephenson, 5 Bing. 439, per Best, C. J. ; Saunders v. Ferrill, 1 Iredell, 97. And see, as to the manner of acquiring the interest, supra, § 418. 7 Nelius V. Brickell, 1 Hayw. 19. In this case, the witness was the wife ,of the obligor. And see Amherst Bank v. Root, 2 Met. 522, that if the sub- scribing witness was interested at the time of attestation, and is dead at the time of trial, his handwriting may not be proved. For such evidence would be merely secondary, and therefore admissible only in cases where the pri- mary evidence could have been admitted. [If a subscribing witness to an instrument merely makes his mark, instead of writing his name, the instru- ment is to be proved by evidence of the handwriting of the party executing it. Watts V. Kilburn, 7 Geo. 356.] 8 Lang V. Raine, 2 B. & P. 85. 9 Abbott V. Pliimbe, 1 Doug. 216 ; Lesher v. Levan, 1 Dall. 96; Ley v. Ballard, 3 Esp. 173, u. ; Powell v. Blackett, 1 Esp. 97; Park v. Mears, 3 Esp. 171 ; Fitzgerald v. Elsee, 2 Campb. 635; Blurton v. Toon, Skin. 639 ; McCraw v. Gentry, 3 Campb. 132 ; Grelher v. Neale, Peake's Cas. 145 ; CHAP. VI.] PRIVATE WRITINGS. 763 that this did not excuse the party from calling him ; for he may be able still to testify to other parts of the res gestcB at the time of signing.' If the witness was infamous at the time of attestation, or was interested, and continues so, the party not then knowing, the fact, the attestation is treated as a nullity.^ § 573. A fourth exception has been sometimes admitted, in regard to office bonds, required by law to be taken in the name of some public functionary, in trust for the benefit of all persons concerned, and to be preserved in the public registry for their protection and use ; of the due execution of which, as well as of their sufficiency, such ofiicer must first be satisfied and the bond approved, before the party is quali- fied to enter upon the duties of his office. Such, for exam- ple, are the bonds given for their official fidelity and good conduct, by guardians, executors, and administrators, to the Judge of Probate. Such documents, it is said, have a high character of authenticity, and need not be verified by the ordinary tests of truth, applied to merely private instruments, namely, the testimony of the subscribing witnesses ; but when they are taken from the proper public repository, it is Whitaker v. Salisbury, 15 Pick. 534; Quimby v. Buzzell, 4 Shepl. 470; Supra, § 272. Where one of the attesting witnesses to a will has no recol-, lection of having subscribed it, but testifies that the signature of his name! thereto is genuine ; the testimony of another attesting witness, that the firsi did subscribe his name in the testator's presence, is sufficient evidence ol that fact. Dewey v. Dewey, 1 Met. 349. See also Quimby v. Buzzell, 4 Shepl. 470 ; New Haven Co. Bank v. Mitchell, 15 Conn. R. 206. If the witness to a deed recollects seeing the signature only, but the attesting clause is in the usual formula, the Jury will be advised, in the absence of control- ling circumstances, to find the sealing and delivery also. Burling v. Paterson, 9 C. & P. 570. See supra, § 38 a. 1 Cronk V. Frith, 9 C. & P. 197 ; 2 M. & Rob. 262, S. C, per Ld. Abin- ger, C. B. ; Rees v. Williams, 1 De Gex & Smale, 314. In a former case of Pedler v. Paige, 1 M. & Rob. 258, Parke, J., expressed himself of the same opinion, but felt bound by the opposite ruling of Ld. Holt, in Wood v. Drury, 1 Ld. Rayra. 734. 2 Swire «. Bell, 5 T. R. 371 ; Honeywood v. Peacock, 3 Campb. 1 96 ; Am- herst Bank v. Root, 2 Met. 522. 764 LAW OF EVIDENCE. [PART UI. only necessary to prove the identity of the obligor with the party in the action.' Whether this exception, recently as- serted, vsrill be generally admitted, remains to be seen. § 573 a. A furthur exception to the rule requiring proof of handvrritirig, has been admitted, in the case of letters received in reply to others proved to have been sent to the party. Thus where the plaintiff's attorney wrote a letter addressed to the defendant at his residence, and sent it by the post, to which he received a reply purporting to be from the defend- ant ; it was held, that the letter thus received was admissible 1 Kello «. Maget, 1 Dev. & Bat. 414. The case of deeds enrolled would require a distinct consideration in this place, were not the practice so various in the different States, as to reduce the subject to a mere question of local law, not falling within the plan of this work. In general, it may be remarked, that in all the United States, provision is made for the registration and en- rolment of deeds of conveyance of lands ; and that prior to such registration, the deed must be acknowledged by the grantor, before the designated mag- istrate ; and, in case of the death or refusal of the grantor, and in some other enumerated cases, the deed must be proved by witnesses, either before a magistrate, or in a Court of record. But generally speaking, such acknowl- ' edgment is merely designed to entitle the deed to registration, and registra- tion is, in most States, not essential to passing the estate, but is only intended to give notoriety to the conveyance, as a substitute for livery of sei'sin. And such acknowledgment is not generally received, as prima facie evidence of the execution of the deed, unless by force of some statute, or immemorial usage, rendering it so ; but the grantor, or party to be affected by the in- strument, may still controvert its genuineness and validity. But where the deed falls under one of the exceptions, and has been proved per iesieSy there seems to be good reason for receiving this probate, duly authenticated, as sufficient prima facie proof of the execution, and such is understood to be the course of practice, as settled by the statutes of many of the United States. See 4 Cruise's Dig. tit. 32, ch. 29, § 1, note, and ch. 2, § 77, 80, notes (Greenleaf 's ed.) ; 2 Lomax's Dig. 353 ; Doe v. Johnson, 2 Scam. 522; Morris v. Wadsworth, 17 Wend. 103; Thurman v. Cameron, 24 Wend. 87. The English doctrine is found in 2 Phil. Evid. 243-247; 1 Stark. Evid. 355-358. And see Mr. Metcalf's note to 1 Stark. Evid. 357; Brotherton v. Livingston, 3 Watts & ^erg. 384 ; Vance v. Schuyler, 1 Gilm. 111. R. 160. Where a deed executed by an officer acting under authority of law is offered in evidence, not in proof of title, but in proof of a collateral fact, the authority of the officer needs not to be, shown. BoUes v. Beach, 3 Am. Law Journ. 122, N. S. See Rev. St. Wisconsin, p. 525; Rev. St. Illi- nois, p. 108. CHAP. VI.] PRIVATE WRITINQS. 765 in evidence, without proof of the defendant's handwriting ; and that letters of an earlier date in the same handwriting, might also be read, without other proof.^ § 573 b. A fifth exception to the rule requiring proof by the subscribing witness, is admitted, where the instrument is not directly in issue, but comes incidentally in question in the course of the trial ; in which case, its execution may be proved by any competent testimony, without calling the sub- scribing witness.^ § 574. The degree of diligence in the search for the sub- scribing witnesses, is the same which is required in the search for a lost paper, the principle being the same in both cases.® It must be a strict, diligent, and honest inquiry and search, satisfactory to the Cour|;, under the circumstances of the case. It should be made at the residence of the witness; if known, and at all other places where he may be expected to be found ; and inquiry should be made of his relatives, and others who may be supposed to be able to afford infor- mation. And the answers given to such inquiries may be given in evidence, they being not hearsay, but parts of the res gestce.^ If there is more than one attesting witness, the ■ absence of them all must be satisfactorily accounted for, in order to let in the secondary evidence.^ § 575. When secondary evidence of the execution of the 1 Ovenston v. Wilson, 2 Car. & Kir. 1. 2 Curtis V. Belknap, 6 Washb. 433. [On the trial of an indictment for obtaining the signature to a deed by false pretences, the deed may be proved by the testimony of the grantor, without calling the attestihg witness. Com- monwealth V. Castles, 20 Law Rep. (10 N. S.) 4ir.] 3 Supra, § 558. ■* The cases on this subject are numerous ; but as the application of the rule is a matter in the discretion of the Judge, under the particular circum- stances of each case, it is thought unnecessary to encumber the work with a particular reference to them. 5 Cunliffe v. Sefton, 2 East, 183 ; Kelsey v. Hanmer, 18 Conn. R. 311 ; Doe V. Hathaway, 2 Allen, 69. 766 LAW OF EVIDENCE. [PART III. instrument is thus rendered admissible, it will not be neces- sary to prove the handwriting of more than one witness.' And this evidence is, in general, deemed sufficient to admit the instrument to be read,^ being accompanied with proof of the identity of the party sued with the person who appears to have executed the instrument; which proof, it seems, is now deemed requisite,^ especially where the deed on its face 1 Adams v. Kerr, 1 B. & P. 360 ; 3 Preston on Abstracts of Title, p. 72, 73. 2 Kay V. Brookman, 3 C. & P. 555 ; Webb v. St. Lawrence, 3 Bro. P. C. 640 ; Mott V. Doughty, 1 Johns. Cas. 230 ; Sluby v. Champlin, 4 Johns. 461 ; Adatns v. Kerr, 1 B. & P. 360 ; Cunliffe v. Sefton, 2 East, 183 ; Prince v. Blackburn, 2 East, 250 ; Douglas v. Sanderson, 2 Dall. 116 ; Cooke v. Wood- row, 5 Cranch, 13 ; Hamilton v. Marsden, 6 Binn. 45 ; Powers v. McFerran, 2 S. & R. 44 ; McKinder v. Littlejohn, 1 Iredell, 66. Some Courts have also required proof of the handwriting of the obligor, in addition to that of the subscribing witness ; but on this point the practice is not uniform. Clark V. Courtney, 5 Peters, 319; Hopkins w.De Graffenreid, 2 Bay, 187; Oliphant V. Taggart, 1 Bay, 255 ; Irving m. Irving, 2 Hayw. 27 ; Clark v. Saunderson, 3 Binn. 192; Jackson v. La Grange, 19 Johns. 386; Jackson v. Waldron, 13 Wend. 178,183, 197, 198, semj/e. See also Goughw. Cecil, 1 Selw. N. P. 638, 11. (7), (10th ed.) See supra, § 84, n. ; Thomas t>. Turnley,. 2 Rob. Louis. R. 206 ; Dunbar v. Harden, 13 N. Hamp. 311. 3 Whitelocke v. Musgrove, 1 C. & M. 511. But it seems that slight evi- dence of identity will suffice. See Nelson v. Whittall, 1 B. & Aid. 19 ; War- ren V. Anderson, 8 Scott, 384. See also 1 Selw. N. P. 538, n. (7), (10th ed.) ; Phil. & Am. on Evid. 661, n. (4). This subject has recently been reviewed, in the cases of Sewell v. Evans, and Roden v. Ryde, 4 Ad. & El. N. S. 626. In the former case, which was an action for goods spld, against William Seal Evans, it was proved that the goods had been sold to a person of that name, who had been a customer, and had written a letter acknowledging the re- ceipt of the goods ; but there was no other proof that this person was the defendant. In the latter case, which was against Henry Thomas Ryde, as •the acceptor of a bill of exchange, it appeared that a person of that name had kept cash at the bank where the bill was payable, and had drawn checks, which the cashier had paid. The cashier knew the person's hand- writing, by the checks, and testified that the acceptance was in the same writing; but he had not paid any check for some time, and did not person- ally know him ; and there was no other proof of his identity with the de- fendant. The Court in both these cases, held that the evidence of identity, was prima facie sufficient. In the latter case, the learned Judges gave their reasons as follows : Lord Denman, C. J., " The doubt raised here has arisen GHAP. VI.] PRIVATE WRITINGS. T67 excites suspicion of fraud.^ The instrument may also in such cases be read, upon proof of the handwriting of the put of the case of Whitelocke v. Muagrove, (1 C. & M. 511 ; S. C. 8 Tyrwh. 541); but there the circumstances were different. The party to be fixed with liability was a marksman, and the facts of the case made some expla- nation necessary. But where a person, in the course of the ordinary trans- actions of life, has signed his name to such an instrument as this, I do not think there is an instance in which evidence of identity has been required, except Jones v. Jones, (9 M. & W. 75.) There the name was proved to be very common in the country; and 1 do not say that evidence of this kind may not be rendered necessary by particular circumstances, as, for instance, length of time since the name was signed. But in cases where no partic- ular circumstance tends to raise a question as to the party being the same, even identity of name is something from which an inference may be drawn. If the name were only John Smith, which is of very frequent pccurrenoe, there might not be much ground for drawing the conclusion. But Henry Thomas Rydes are not so numerous ; and from that, and the circumstances generally, there is every reason to believe that the acceptor and the defend- ant are identical. The dictum of Bolland, B., (3 Tyrwh. 558,) has been already answered. Lord Lyndhurst, C. B., asks (3 Tyrwh. 543,) why the onus of proving a negative in these cases should be thrown upon the defend- ant; the answer is, because the proof is so easy. He might come into Court and have the witness asked whether he was the man. The supposition that the right man has been sued is reasonable, on account of the danger a party would incur, if he served process on the wrong ; for, if he did so wilfully, the Court would no doubt exercise their jurisdiction of punishing for a con- tempt. But the fraud is one which, in the majority of cases, it would not occur to any one to commit. The practice, as to proof, which has constantly prevailed in cases of this kind, shows how unlikely it is that such frauds should occur. The doubt now suggested has never been raised before the late cases which have been referred to. The observations of Lord Abinger and Alderson, B., in Greenshields v. Crawford, (9 M. & W. 314,) apply to this case. The transactions of the world could not go on if such an objection were to prevail. It is unfortunate that the doubt should ever have been raised ; and it is best that we should sweep it away as soon as we can." — Patteson, J. : "I concur in all that has been said by my Lord. And the rule always laid down in books of evidence, agrees with our present decision. The execution of a deed has always been proved, by mere evidence of the subscribing witness's handwriting, if he was dead. The party executing an instrument may have changed his residence. Must a plaintiff show where he lived at the time of the execution, and then trace him through eveiy change of habitation until he is served with the writ ? No such necessity 1 Brown v. Kimball, 25 Wend. 469. 768 LAW OF EVIDENCE. [PART III. obligor, or party by whom it was executed ; ^ but in this case also, it is conceived, that the like proof of the identity of the party should be required. If there be no subscribing witness, the instrument is sufficiently proved by any competent evir dence that the signature is 'genuine.^ § 576. In considering the proof of private writings, we are naturally led to consider the subject of the comparison of hands, upon which great diversities of opinion have been entertained. This expression seems formerly to have been applied to every case, where the genuineness of one writing was proposed to be tested before the Jury, by comparing it with another, even though the latter were an acknowledged autograph ; and it was held inadmissible, because the Jury were supposed to be too illiterate to judge of this sort of evidence ; a reason long since exploded.^ All evidence of can be imposed." — Williams, J.: "I am of the same opinion. It cannot be said here there was not some evidence of identity. A man of the de- fendant's name had kept money at the branch bank ; and this acceptance is proved to be his writing. Then, is that man the defendant ? That it is a person of the same name is some evidence, until another party is pointed out who might have been the acceptor. In Jones v. Jones, (9 M. & W. 75,) the same proof was relied upon ; and Lord Abinger said : ' The argument for the plaintiff might be correct, if the case had not introduced the exist- ence of many Hugh Joneses in the neighborhood where the note was made. It appeared that the name Hugh Jones, in the particular part of Wales, was so common as hardly to be a name ; so that a doubt was raised on the evi- dence by cross-examination. That is not so here ; and therefore the conclu- sion must be different." 1 In Jackson v. Waldron, 11 Wend. 178, 183, 196, 197, proof of the hand- writing of the obligor was held not regularly to be offered, unless the party was unable to prove the handwriting of the witness. But in Valentine v. Piper, 22 Pick. 90, proof of the handwriting of the party was esteemed more satisfactory than that of the witnesses. The order of the proofs, however, is a matter resting entirely in the discretion of the Court. 2 PuUen V. Hutchinson, 12 Shepl. 249. 8 The admission of evidence by comparison of hands, in Col. Sidney's case, 8 Howfell's St. Tr. 467, was one of the grounds of reversing his at- tainder. Yet, though it clearly appears that his' handwriting was proved by two witnesses, who had seen him write, and by a third who had paid bills, purporting to have been indorsed by him, this was held illegal evidence, in a criminal case. CHAP. VI.] PRIVATE WHITINGS. 769 handwriting, except where the witness saw the document written, is, in its nature, comparison. It is the belief which a witness entertains, upon comparing the writing in question with its exemplar in his mind, derived from some previous knowledge.^ The admissibility of some evidence of this kind is now too well established to be shaken. It is agreed that, if the witness has the proper knowledge of the party's handwriting, he may declare his belief in regard to the genu- ineness of the writing in question. He may also be inter- rogated as to the circumstances on which he founds his be- lief.2 The point upon which learned Judges have differed in opinion is, upon the source from which this knowledge is derived, rather than as to the degree or extent of it. § 577. There are two modes of acquiring- this knowledge of, the handwriting of another, either of which is universally I admitted to be sufficient, to enable a witness to testify to its genuineness. The frst is &om having seen him write. It is held sufficient for this purpose, that the witness has seen him write but once, and then only his name. The proof in such case may be very light ; but the Jury will be permitted to ) weigh it.^ The second mode is, from having seen letters, \ 1 Doe V. Suckermore, 5 Ad. & El. 730, per Patteson, J. See also the remarks of Mr. Evans, 2 Poth. Obi. App. xvi. § 6, ad. calc. p. 162. 2 Regina v. Murphy, 8 C. & P. 297; Commonwealth v. Webster, 5 Cush. 296 ; [Keith v. Lathrop, 10 lb. 453.] 3 Garrells v. Alexander, 4 Esp. 37. In Powell v. Ford, 2 Stark. R. 164, the witness had never seen the defendant write his christian name ; but only " M. Ford," and then but once ; whereas the acceptance of the bill in ques- tion was written with both the christian and surname at full length : and Lord Ellenborough thought it not sufficient, as the witness had no perfect examplar of the signature in his mind. But in Lewis v. Sapio, 1 M. & Malk. 39, where the signature was "L. B. Sapio," and the witness had seen him write several times, but always " Mr. Sapio," Lord Tenterden held it sufficient. A witness has also been permitted to speak as to the genuine- ness of a person's mark, from having seen it affixed by him on several occa- sions. George v. Surrey, 1 M. & Malk. 516. But where the knowledge of the handwriting has been obtained by the witness from seeing the party write his name, /or that purpose, after the commencement of the suit, the evidence is held inadmissible. Stranger v. Searle, 1 Esp. 14. See also Page v. VOL. I. 65 770 LAW OF EVIDENCE. [PART HI. j bills, or other documents, purporting to be the handwriting of the party, and having, afterwards personally communicated \ with him respecting them ; or acted upon them as his, the party having known and acquiesced in such acts, founded upon their supposed genuineness ; or, by such adoption of them into the ordinary business transactions of life, as in- duces a reasonable presumption of their being his own writ- ings ; evidence of the identity of the party being of course added aliimde, if the witness be not personally acquainted : with him.^ In both these cases, the witness acquires his knowledge by his own observation of facts, occurring un- Homa'ns, 2 Shepl. 478. In Slaymaker v. Wilson, 1 Penn. R. 216, the depo- sition of a witness, who swore positively to her father's hand, was rejected, because she did not say how she knew it to be his hand. But in Moody v. Eowell, 17 Pick. 490, such evidence was very properly held sufficient on the ground, that it was for the other party to explore the sources of the depo- nent's knowledge, if he was not satisfied that it was sufficient. [Bowman ». Sanborn; 5 Foster, 87 ; Hopkins v. Megquire, 35 Maine, 78 ; West v. State, 2 N. Jersey, 212. Before being admitted to testify as to the genuineness of a controverted signature from his knowledge of the handwriting of the party, a witness ought, beyond all question, to have seen the party write, or be con- versant with his acknowledged signature. The teller of a bank, who as such has. paid many checks purporting to be drawn by a person who has a deposit account with the bank, but has not seen him write, if the testimony shows nothing further, is a competent witness to testify as to the handwriting of 1 such person ; but he is not a competent witness to testify to the hand writing lof such person, if it appears, that some of the checks so paid were forged, and 'that the witness paid alike the forged and genuine checks. Brigham v. Peters, 1 Gray, 139, 145, 146. A witness who has done business with the maker of the note, and seen him write, 'hul only since the date of the disputed note, may nevertheless give his opinion in regard to the genuineness of the note, the objection going to the weight and not to the competency of the ev- idence. Keith V. Lathrop, 10 Cush. 453.] 1 Doe V. Suckermore, 5 Ad. & El. 731, per Patteson, J. ; Lord Ferrers v. Shifley, Fitzg. 195 ; Carey v. Pitt, Peake's Evid. App. 81 ; Thorpe v. Gis- burne, 2 C. & P. 21 ; Harrington u. Fry, Ey. & M. 90 ; Commonwealth v. Carey, 2 Pic^. 47; Johnson v. Daverne, 19 Johns. 134; Burru. Harper, Holt's Cas. 420 ; Pope v. Askew, 1 Iredell, R. 16. If a letter has been sent to the adverse party, by post, and An answer received, the answer may be read in evidence, without proof of the handwriting. Ovenston v. Wilson, 2 C. & K. 1 ; Supra, § 573 a. [See also Kinney v. Flynn, 2 B,. I. 319 ; Mc- Konkey v. Gaylord, 1 Jones, Law, N. C. 94.] CHAP. VI.] PRIVATE WRITINGS. 771 der his own eye, and which is especially to be remarked,/ without having regard to any particular person, case, o^ document. § 578. This rule, requiring personal knowledge on the part of the witness, has been relaxed in two cases. (1.) Where writings are of such antiquity, that living witnesses cannot be had, and yet are not so old as to prove themselves.' Here the course is, to produce other documents, either admitted to be genuine, or proved to have been respected and treated and acted upon as such, by all parties ; and to call experts to com- pare them, and to testify their opinion concerning the genu- ineness of the instrument in question.^ (2.) Where other wn" requires writing . 86 for written contract . . 87 for any writing material to the controversy . ^ . 88 unless collateral 89 for written declaration in extremis . . . 161 when it may be given, though a writing exists . 90 exceptions to the rule which rejects secondary evidence in 1. case of public records . . . 91 2. official appointments ... 92 3. result of voluminous facts, accounts, &c 93 ^4. inscriptions on monuments, &c. . 94, 105 5. examinations on the voir dire . 95 6. some cases of admission . . 96 7. witness subsequently interested, his former deposition admissible . 168 excluded from public policy, what and when . 236-254 professional communications 237-248 proceedings of arbitrators . . 249 secrets of state . . . 250, 251 proceedings of grand jurors . 252 indecent, or injurious to the feel- ings of others . . . 253, 344 communications between husband and wife .... 254, 334^345 illegally obtained, still admissible .... 254 a INDEX. 793 Section EVIDENCE, continued. what amount necessary to establish a charge of trea- son . . . . 255, 256 to establish a charge of perjury 257 to overthrow an answer in chan- cery 260 in ecclesiastical courts . 260 a, n. written, when requisite by the statute of frauds . 261-274 instruments of ....... 307 oral, what 308 corroborative, what . 381, n. objection to competency of, when to be taken . . 421 (^See Privileged Communications.)- EXAMINATION, on criminal charge, when admissible . . * . 224, 227, 228 signature of prisoner unnecessary 228 EXAMINATION IN BANKRUPTCY, v not admissible against the bankrupt, on a crjimi^al charge 226 EXCHEQUER, "' judgments in, when conclusive .... 525, 541 EXECUTION, of deeds, &c. proof of 569,572 {See Private Writings.) EXECUTIVE, acts of, how proved ....... 479 EXECUTOR, admissions by 179 foreign 544 EXEMPLIFICATION, what and how obtained ...... 501 EXPENSES OF WITNESSES, {See Witnesses.) EXPERTS, who are 440, n. when their testimony is admissible to decipher writings 280 to explain terms of art 280 to explain provincial- isms, &c. . . 280 to what matters they may give opinions . 440, 576, 580, n. F. FACTOR, {See Agent.) VOL. I. 67 T94 INDEX. Section FAMILY, recognition by, in proof of pedigree . . . 103, 104, 134 (See Heaesat. Pbdigeee.) FELONY, conviction of, incapacitates witness .... 373 (♦S'ee Witnesses.) FIXTURES, what are 271 FLEET BOOKS, (See Public Books.) FORCIBLE ENTRY, tenant incompetent as a witness .... 403 (See Witnesses.) FORCIBLE MARRIAGE, wife competent to prove . . . ... . 343 FOREIGN COURTS, (See Public Records and Documents, Records and Judicial Writings.) FOREIGN JUDGMENTS, of infamy, do not go to the competency . . . 376 proof of . . . 614 in rem, effect of ..... . 543-545 in personam 545-549 (See Records and Judicial Writings.) FOREIGN LAWS, proof of 486, 488 (See Public Records and Documents.) FOREIGN STATES,- (See Judicial Notice. Public Records AND Documents. Records and Judicial Writings.) FORGERY, conviction of, incapacitates witness . . . 373, 374 party whose name is forged, when competent . . 414 (See Private Writings.) FRAUD, general presumption against .... 34, 35, 80 (See Presumptions.) ^ FRAUDS, statute of 262-274 (See Writings.) G. GAME LAWS, want of qualifications under, must be proved by the affirmant 78 INDEX. 795 Section GAZETTE, in what cases admissible 492 (See Public Records and Doctjments.) GOVERNMENT, acts of, how proved . . . 383, 478, 491, 492 (See Public Recokds and Documents.) GOVERNOR, of a State or Province, when not bound to testify . 251 provincial, communications from, privileged . . 251 (See .Peitileged Communications.) GRAND JURY, transactions before, how far privileged . . . 252 (See Pkivileged Communications.) GRANT, when presumed 45 conclusively 17 GUARDIAN, admission by . 179 GUILTY POSSESSION, evidence of . . 34, 35 H. HABEAS CORPUS, ad testificandum 312 (See Witnesses.) HANDWRITING, attorney competent to prove client's writings . . 242 proof of, in general ...... 576-581 (See Private Writings.) HEARSAY, what it is 99,100 what is not hearsay information, upon which one has acted . 101 conversation of one whose sanity is questioned 101 answers given to inquiries for information 101, 574 general reputation 101 expressions of bodily or mental feelings . 102 complaints of injury, ?-ece»tSise Witnesses. Admissions.) PAYEE, admissibility of, to impeach the security {See Witnesses.) . 296 296 a 297-300 . 301 . 301 302, 304 303, 304 . 304 . 305 305, n. . 155 379 112 112, n. 177, 189, 207, 527 a 329, 380 348, 363 383-385 INDEX. 807 Section PAYMENT, provable by parol 302-305 of money, eiFect of, to restore competency . . 408-430 {See Witnesses.) PAYMENT INTO COUET, when and how far conclusive ..... 205 PEDIGREE, what is included in this terra 104 proof of 103-105 (